CIV PRO Flashcards
Transfer of Venue
A court may transfer venue if: 1) the original venue is improper; or 2) if the original venue is proper, transfer may be made to a court where the original action may have been brought and in the interest of justice and convenience of the parties and witnesses. The transferee court must have SMJ over the action and PJ over the defendants.
Interests of Justice / Convenience of Parties - Generally, P’s choice of forum is entitled to deference and should not be disturbed **absent compelling reasons of fairness. **
Applicable law
- Original venue is proper – law of the state of original venue
- Original venue is improper – law of transfer state
Venue
Venue is proper in:
- District where D resides
- Multiple Ds – all Ds must reside in same state
- Where substantial part of the events/omissions giving rise to the claim occurred or a substantial part of the property involved in the lawsuit is located; or
- If no district satisfies (1) or (2), where D is subject to PJ.
- *improper venue may be waived by the parties*
Venue - Residence
Individuals/aliens – resident of district of domicile
Corps – resident of district where it is subject to PJ
Nonresident alien – can be sued in any district
Appeal
Generally, only final orders are reviewable. A final order is one that disposes of all claims and parties on the merits. Appeals must be made within 30 days from entry of judgment.
Exceptions:
- Interlocutory Orders – involving injunctions, appointments of receivers, and certain admiralty, patent infringement, and property possession cases
- Collateral Order – a claim or issue is separable from and collateral to the main suit and is a claim too important to require deferring appellate review may be appealable
- Certifications of Class Actions – order granting/denying the certification of a class action may be reviewed at the court’s discretion within 14 days after entry of the order.
- Appeal by Writ – final order rule may be circumvented by appellate writs of mandamus (compelling a judge to act) and prohibition (prohibiting a judge from acting)
Res Judicata - Claim Preclusion
Bars a relitigation of an action if:
- Cases that are brought by the same P against the same D;
- Previous judgment is a valid final judgment on the merits;
- FRCP – any judgment except ones based on jurisdiction, venue, or indispensible parties
- CA – judgment is not considered final until the conclusion of any possible appeals
-
Same cause of action or claim in the latter suit; and
- FRCP – assertion of all claims arising out of the same transaction or occurrence
- CA – follows the Primary Rights Doctrine where a cause of action is an invasion of a single primary right. Lawsuit may not be split if a single primary right is involved.
- P injured by D in an accident can sue in one action for PI and separate action for property damages
- Cause of action/claim was actually litigated or could have been litigated in the prior action.
Collateral Estoppel - Issue Preclusion
Collateral Estoppel stops a person who was a party in the prior proceeding from relitigating an issue that was resolved in that case. Collateral estoppel requires:
1) Same issue was actually litigated in prior action;
2) The prior case ended on a valid final judgment on the merits;
3) The issue was essential to the judgment in prior action; and
4) Mutuality
* Traditionally, courts required the party asserting issue preclusion and the party the judgment was being used against were both parties in the prior action. However, modernly, most courts allow a nonparty defendant in a later case to use issue preclusion against a plaintiff who was a party in the prior case. Courts are more reluctant to allow a nonparty plaintiff to use issue preclusion offensively against a defendant in the prior case. Regardless, the court will consider the fairness in allowing the nonparty to assert collateral estoppel.
* D had a full and fair opportunity to litigate in case 1
* No collateral estoppel if incentive to litigate the issue in the 1st case was not strong
* D could foresee multiple suits
* Asserting party (P in case 2) could not have easily joined in case 1
* No inconsistent judgments on record
Class Action
Class Action is proper if: (CANTT)
1) Commonality – There are questions of law or fact common to the class;
2) Adequate Rep – Named parties will adequately represent the interests of the absent members of the class
3) Numerosity – The class is so numerous that joinder of all parties is impracticable;
4) Typicality – Named parties’ interests are typical of the class.
5) Types:
-
Prejudice – class action necessary to avoid harm either to class members or opposing party
- Separate actions would create risk of inconsistent results; or
- Impair the interests of unnamed parties;
- Requires no notice
-
Injunctive/declaratory relief is appropriate for the class as a whole (Not damages)
- Requires no notice
Ex. employment discrimination
- Requires no notice
-
Common Questions of Law or Fact predominate over individual issues and class action is superior to alternative methods of adjudication (Ex. mass tort)
- Requires individual notice to all class members to allow for opt out
* Notice must state: 1) nature of the action; 2) definition of the class; 3) class claims, issues, or defenses; and 4) binding effect of judgment Notice cost to be borne by P
* **Allows opt out** (notify court that do not wish to be bound)
Discovery
FRCP – requires parties to disclose any nonprivileged information that is relevant to any party’s claim or defense, and reasonably calculated to lead to the discovery of admissible evidence.
- Duty to update prior responses
CA - requires parties to disclose any nonprivileged information that is relevant to the subject matter of the litigation (broader)
- No duty to supplement unless opposing party asks
Discovery - Enforcement
Protective Order
Responding party may seek a protective order (i.e. request is over burdensome, work product, invades privilege, etc.)
Discovery - Enforcement
Motion to Compel
If a party fails to provide discovery or provides incomplete discovery, the other party may move to compel discovery. Motion must certify that the moving party has made a good faith attempt to confer with his opponent to obtain the discovery without court intervention
If party fails to comply with order to compel, the court may:
- Order the matter to be treated as admitted,
- Prohibit the party from supporting or denying designated claims/defenses;
- Strike pleadings, stay or dismiss the action, or render a default judgment; or
- Hold the delinquent party or witness in contempt of court
Discovery - Enforcement
Sanctions
Immediate Sanctions – if a party fails to attend depo or fails to provide any answers to interrogs, a party may move for immediate sanctions (as opposed to moving to compel). Motion must certify the moving party has made a good faith attempt to obtain the answers
Automatic Sanctions – if a party without substantial justification fails to disclose information as required under Rule 26, or fails to supplement or amend discovery responses under Rule 26(c), a party may move for automatic sanctions.
Discovery - Work Product
All material made by a lawyer in anticipation of litigation is generally protected from discovery, unless party seeking discovery of qualified work product shows substantial need or undue hardship in obtaining materials in an alternative way.
- If the court orders disclosure, it must take steps to avoid the disclosure of mental impression, conclusion, opinions, or legal theories of the disclosing party.
CA – party seeking discovery of qualified work product must show that he would be unfairly prejudiced in preparing his claim/defense or that an injustice would result if the matter is not disclosed.
Removal
A defendant may remove a case to the federal court in the state where the claim was filed if: (1) the federal court has SMJ; (2) all defendants agree; (3) removal is sought within 30 days of learning of the grounds for removal; (4) DJ case - D is not a resident of the forum state.
D seeking removal must file a notice of removal in the fed district court in the district and division where action is pending. Copy of notice must be sent to the other parties and state court.
Remand
In deciding whether to remand a case to state court, the fed court must **determine whether removal was proper. ** If removal was improper, the fed court must remand the case back to state court.
FQ Claim – D may remove a case filed in state court that contains a FQ claim and other state law claims that do not invoke DJ or SJX. The fed court must sever and remand the state law claims to state court.
