civ pro Flashcards
civ pro
Civ pro MBE tips
- think of how to make the case go away
- if there are dates, make a timeline
- be open-minded about idx
- carefully note the c/a
civ pro
msj std
the movant must show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.
civ pro
time to request a jury trial
A demand for a jury trial must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury.
civ pro
holidays and weekends
In computing whether a party has complied with the rules for undertaking an action within the specified time period, when the last day of the period would otherwise fall on a holiday, the action may be undertaken on the next non-holiday weekday.
Weekend days are counted in determining whether a party has taken action, such as making a demand for a jury trial, within the permissible time period.
civ pro
diversity jdx
U.S. district courts have diversity jurisdiction when both (i) no plaintiff is a citizen of the same state as any defendant and (ii) the amount in controversy in the action exceeds $75,000. To be a citizen of a state, a person must be a citizen of the United States and a domiciliary of the state. Domicile is determined at the time the action is commenced.
civ pro
relation back of amended complaint
An amendment to a pleading will relate back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading.
civ pro
statutory interpleader
- any two claimants diverse
- at least $500 in controversy
- national SOP
civ pro
venue
In general, venue in a federal civil action is proper in only one of the following judicial districts: (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located, or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located. If neither situation applies, venue is proper in the judicial district in which one of the defendants is subject to personal jurisdiction.
residence= domicile for individuals; where PJ for businesses
civ pro
supplemental jdx to a federal claim
If the original claim is based on federal-question jurisdiction, then a nonfederal claim may be joined only if diversity jurisdiction exists or if the two claims are part of the same case or controversy as the federal claim such that supplemental jurisdiction applies.
civ pro
service for in rem cases
Although in rem proceedings are commenced against property, they must still satisfy due process requirements for personal jurisdiction because they affect the rights of individuals in the property. Due process is met if the notice is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” It is not sufficient to simply post the notice on the property or publish the notice in a newspaper as to persons who are known to have an interest in the property and whose whereabouts are reasonably ascertainable.
civ pro
PJ approach
In Personam Jurisdiction
Due Process Requirements
*Minimum Contacts
Purposeful Availment
Specific and General Jurisdiction
*Fair Play and Substantial Justice
Forum State Interest
Burden on Defendant
Interest of Judicial System
Shared Interest of Statesciv pro
SMJ Approach
- Objection to Jurisdiction
- Federal Question Jurisdiction
- Diversity Jurisdiction
a. Complete Diversity
Citizenship of Parties
Corporations
*Principal Place of Business
*Foreign Corporation
b. Amount in Controversy
*Aggregation of Claims by a Single P Against a Single D
*Aggregation of Claims by Multiple P’s
civ pro
“SMJ”
The term “subject matter jurisdiction” refers to a court’s competence to hear and determine cases of the general class and subject to which the proceedings in question belong. The most common congressional grants of subject matter jurisdiction are federal question jurisdiction and diversity jurisdiction.
civ pro
“Objection to SMJ”
An objection to subject matter jurisdiction can be presented by any party at any stage of a proceeding, including on appeal, or may be raised by the court.
civ pro
“FQ jdx”
Under federal question jurisdiction, district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
civ pro
“Diversity jdx”
The U.S. district courts have jurisdiction over actions when: (i) the parties to an action are citizens of different states or citizens of a state and citizens or subjectsz of a foreign state and (ii) the amount in controversy in the action exceeds $75,000. In general, when these requirements are met, a federal court may exercise jurisdiction over the action, regardless of the legal subject of the controversy.
civ pro
“Complete diversity”
Diversity jurisdiction requires complete diversity between opposing parties in a case. There is no diversity of citizenship if any plaintiff in the case is a citizen of the same state as any defendant in the case or if any plaintiff and any defendant are aliens. Two plaintiffs in a case may be from the same state without destroying diversity, as long as no plaintiff is from the same state as any defendant in the case. When the action is commenced, there must be complete diversity between opposing parties. The citizenship of each party must be determined to ensure complete diversity.
civ pro
“citizenship of parties”
In general, a person is a domiciliary of the state in which he or she is present and intends to reside for an indefinite period. A person can only have one domicile at a time.
civ pro
“principal place of business”
The principal place of business refers to the “nerve center” of the corporation. The nerve center is generally the location from which the high-level officers direct, control, and coordinate the activities of the corporation. Typically, the nerve center is the corporate headquarters.
civ pro
“foreign corporation”
A foreign corporation will be deemed a citizen of the country in which it is incorporated.
civ pro
“amount in controversy”
The amount in controversy must exceed the sum or value of $75,000, exclusive of interest, costs, and collateral effects of a judgment. The amount in controversy is determined at the time the action is commenced in federal court, or, if the action has been removed to federal court, at the time of the removal. The party seeking to invoke federal court jurisdiction must allege that the action satisfies the amount-in-controversy requirement. In general, a plaintiff’s good-faith assertion in the complaint that the action satisfies the amount-in-controversy requirement is sufficient.
civ pro
“aggregation of claims by multiple plaintiffs”
If the action involves multiple plaintiffs, then the value of their claims may be aggregated only if the multiple plaintiffs are enforcing a single title or right in which they have a common or undivided interest. If multiple plaintiffs, each having separate and distinct claims, unite for convenience or economy in a single suit, then each plaintiff’s aggregate claims are judged separately in determining whether the amount-in-controversy requirement has been met. If the aggregate claims of at least one plaintiff separately meet the amount-in-controversy requirement, then the court has diversity jurisdiction over that plaintiff’s claims, provided the diversity-of-citizenship requirement is met. The court may also have supplemental jurisdiction over the claims of any other plaintiff, even though that plaintiff’s claims do not meet the amount-in-controversy requirement
civ pro
“supplemental jdx”
A district court with jurisdiction over a claim may exercise “supplemental jurisdiction” over additional claims over which the court would not independently have subject matter jurisdiction but that are so related to the original claim that the additional claims form part of the same case or controversy under Article III of the U.S. Constitution. In judging whether the claims are related, the test is whether they arise out of a “common nucleus of operative fact” such that all claims should be tried together in a single judicial proceeding.
civ pro
“SJ for permissive joinder of a party”
Although the additional claim is not required to satisfy the amount-in-controversy requirement for purposes of supplemental jurisdiction, when the additional claim is asserted by a party seeking to join the action under permissive joinder, the addition of that party cannot result in a violation of the requirement for complete diversity of citizenship.
civ pro
“PJ”
Personal jurisdiction refers to the judicial power over the persons or property involved in the cases or controversies before it. There are three general types of personal jurisdiction: (i) in personam jurisdiction; (ii) in rem jurisdiction; and (iii) quasi-in-rem jurisdiction.
civ pro
“in personam jdx”
In personam jurisdiction is the power that a court has over an individual party. There are four bases for in personam jurisdiction: (i) voluntary presence; (ii) domicile; (iii) consent; and (iv) long-arm statutes.
civ pro
“Due process requirements”
Due process requirements are satisfied if the nonresident defendant has certain minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.
civ pro
“minimum contacts”
Presently, any attempt to gain in personam jurisdiction, under whatever basis, is subject to the International Shoe requirement of minimum contacts.
civ pro
“purposeful availment”
A defendant’s contacts with the forum state must be purposeful and substantial, such that the defendant should reasonably anticipate being taken to court there. Foreseeability depends on whether a defendant recognizes or anticipates that by running his business, he runs the risk of being party to a suit in a particular state.
civ pro
“specific and general idx”
The scope of the contacts necessary for the assertion of personal jurisdiction depends on the relationship that the cause of action has with the forum state. A court will have specific jurisdiction over a defendant when the cause of action arises out of or closely relates to a defendant’s contact with the forum state. A court will have general jurisdiction when the cause of action does not arise out of or relate to the defendant’s contact with the forum state, but the defendant’s contact with the state has been systematic and continuous.
civ pro
“fair play and substantial justice”
A court must determine if maintenance of the action would “offend traditional notions of fair play and substantial justice.” Courts consider various factors, including: (i) the interest of the forum state in adjudicating the matter; (ii) the burden on the defendant of appearing in the case; (iii) the interest of the judicial system in the efficient resolution of controversies; and (iv) the shared interests of the states in promoting common social policies.
civ pro
when to appeal an order for new trial
An order for a new trial is not appealable because it is not a final judgment. A party who wants to raise on appeal the grant of a new trial must wait until the new trial has occurred and resulted in a final judgment. The party may then appeal from that judgment and raise as an issue the order for the new trial.
civ pro
De novo review
Appellate review of legal rulings is de novo. The appeals court will use the trial court’s record, but it reviews the evidence and law without deference to the trial court’s rulings.
civ pro
Motion for a judgment as a matter of law
When ruling on a Rule 50 motion for judgment as a matter of law, the court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party. It may not consider the credibility of witnesses or evaluate the weight of the evidence, and it must disregard all evidence favorable to the moving party that the jury is not required to believe.
Reviewed de novo.
civ pro
time to respond to an amended pleading
Unless the court orders otherwise, a party must respond to an amended pleading within the later of 14 days after service of the amended pleading or the time remaining for response to the original pleading.
civ pro
when can parties ask for new jury instructions
Although the court may require the parties to file jury instructions at the close of evidence or at any earlier reasonable time, a party can file a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court for such requests.
civ pro
issue preclusion
The doctrine of issue preclusion, often called “collateral estoppel,” precludes the re-litigation of an issue of fact or law that has already been necessarily determined by a final and valid judgment as part of an earlier claim. The party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action.
civ pro
default judgment
When a party has failed to plead or otherwise defend an action and that failure is shown by affidavit or otherwise, the court clerk must enter the party’s default. Once a default is entered against a party, the plaintiff may seek a default judgment.
civ pro
time to serve a complaint
Although the court can dismiss an action for failure to serve process within 120 days of filing the complaint, this dismissal is without prejudice. Note that as of December 1, 2015, service must be made within 90 days
civ pro
requirements for discovery sanctions
Generally, attempting to obtain evidence from the plaintiff without a court order and making a motion to compel are prerequisites to obtaining any sanctions under Rule 37.
civ pro
final judgment rule
Under the final judgment rule, a federal appellate court has jurisdiction over an appeal of a final judgment of the trial court. A final judgment is a decision on the merits that leaves nothing for the court to do but execute the judgment. Here, although the trial court granted the dealer’s motion for summary judgment with regard to the issue of liability, it denied the motion as to the matter of damages and thus the issue of damages remained. Consequently, the trial court’s order was not a final judgment.
civ pro
bond requirement for statutory interpleader
In order to file a federal statutory interpleader action, the stakeholder must be willing to either deposit the property at issue with the court or to post a bond in an appropriate amount.
