Civ Pro Flashcards
Erie
- Determine the source of the federal law that conflicts with state law
- If federal law from a fed statute or FRCP, apply fed law
- Fed ct will have to apply substantive state law if the case was removed to fed ct from state ct
Federal Question Jurisdiction
Available when A alleges a claim arising under fed law
Supplemental Jurisdiction
Fed court has discretion to hear related claim that arises from common nucleus of operative facts
Diversity of Citizenship
(1) Complete diversity btwn all Ps and all Ds and
2) Amnt in controversy must exceed $75k (cannot be $75k, must exceed
Personal Jurisdiction
- Federal ct can exercise PJ over D who is domiciled there
- PJ only applies to Defendants! Don’t need to show PJ over P
Objections to PJ
May be asserted by pre-answer mtn or answer, provided objection asserted in first response. Otherwise, objection waived.
Venue
Permitted
(1) in any district where a D resides if all Ds reside in same state or
(2) in state where cause of action occurred (contacts do not matter for venue)
Forum non Conviens
Court has discretionary power to dismiss case where another court is much better suited to hear the case.
Service of Process
- May be made on an individual by leaving copy of the summons and complaint at the individual’s dwelling or usual abode w/ someone of suitable age and discretion who abides there.
- Process may be made as provided by rules of state in which fed court sits or state where service effected
Third Party Counter-Claim
Third Party Defendant MAY assert a claim against P if the claim arises out of the same T/O as the P’s original claim
Third Party Claim/Impleader
A D cannot assert a third party claim against another party unless they are seeking to obtain recovery for the TPD’s labiality to P (indemnity or contribution):
- Only allowed when D is asserting third party liability (wanting reimbursement)
- Not allowed when D is saying he isn’t negligent at all and that it’s third party who’s liable
12(b) Motions
Must be made in first response or answer or the objection waived:
- Lack of PJ
- Insufficient Process
- Insufficient Services of Process
- Improper Venue
Scope of Discovery
May be had of any non-privileged matter relevant to any party’s claim or defense. Does not have to be admissible at trial if it is relevant.
Required Disclosures
Party must provide names of individuals likely to have discoverable information that disclosing party may use to support its claims or defenses.
Motion to Compel Discovery
If a party ignores or disregards mtn to compel, may be sanctions. If party complies, only have to pay the reasonable expenses of other party in making the mtn to compel.
Work Product
QUALIFIED immunity from Discovery unless opposing party can show substantial need or undue hardship.
Any time a party retains an expert witness, conversations btwn retaining atty and retained expert are confidential and protected by work product - they aren’t privileged, though
Jury Trial Demand
- Once you make demand for jury trial, both parties must consent to withdrawal.
- Either party can make demand for jury trial
Special Verdict
- Jury asked to make a finding on all material conclusions of fact - get series of questions regarding each ultimate fact. Judge applies the law to those facts to make legal conclusion.
- A party waives objections to form of the questions if they don’t object when they are first given to the jury.
Motion for Summary Judgment
- Granted when no genuine dispute of material fact.
- Appropriate at any time until 30 days after close of discovery.
- Judge may not weigh credibility of witnesses.
Class Certification
When dist court issues order granting or denying class certification, can be appealed w/in 14 days (so it’s immediately appealable)
Renewed Judgment as a Matter of Law
(1) Arises when party against whom judgment entered claims that judgment based on verdict that reasonable people could not have reached and
(2) Moving party made a motion for judgment as a matter of law at close of all the evidence
Remittur
If judge believes jury award was too high, judge can order new trial or may offer P remittitur (offer to accept less. P gets to choose to accept the lower amnt or get a new trial)
Claim Preclusion
Once a final judgment on the merits has been rendered, P is barred by claim preclusion from asserting the same claim in a later suit:
(1) Final judgment on merits
(2) Same P against same D
(3) Same cause of action
Issue Preclusion
In a previous lawsuit btwn a P and D, any judgments that occur bind them in subsequent actions on different causes of action on issues that were actually litigated and essential to judgment at hand (generally not available if there’s a default judgment, need to litigate the issue)
Voluntary Dismissal
A P may dismiss voluntarily w/o court order only if:
- Dismissal is before opposing party has filed an answer or mtn for summary judgment or
- All parties have filed and signed a stipulation of dismissal
Joining as Co-Plaintiffs
Two plaintiffs MAY join claims if:
- Same T/O and
- Some common question of law or fact
Ex Parte TRO
You have to give D notice of hearing seeking TRO or show why D should not get notice (why it shouldn’t be required in this situation)
Relation Back
In order for an amended complaint to relate back to the original, the filing of the action must be before the statute of limitations has ended. Service of process can come after this, even if it is after the statute of limitations has ended.
