Civ Pro Flashcards
Civ Pro - PJ ROADMAP
1) Traditional Bases
2) Long-Arm
3) Due Process
- -General Jx
- -Specific Jx
- -Fairness
Civ Pro - PJ TRADITIONAL BASES
1) Domicile
- Human = physical presence and intent to remain
- -Corp = state(s) of incorporation and state of PPOB
2) Consent - explicit or by general appearance
3) Present and Personally Served - while voluntarily in the state for other than another court proceeding
4) In Rem - suit involves title to property w/in the state
Civ Pro - PJ - DUE PROCESS RULE
Any exercise of jx must be consistent w/ due process, which requires ∆ to have such minimum contacts with the forum that the exercise of PJ does not offend traditional notions of fair play and substantial justice.
Civ Pro - PJ - GENERAL JX
Where ∆’s contacts are systematic and continuous so as to render him essentially at home in the forum, the cause of action need not be related to the contacts w/ the forum.
Burnam - limited to state of incorporation and PPOB
Civ Pro - PJ - SPECIFIC JX
Requires contacts that reflect:
1) ∆’s purposeful availment of the privileges and benefits of the forum,
2) that it was foreseeable to ∆ that he would be haled into the forum ct, AND
3) that the claim or CoA arose out of such contacts.
Civ Pro - PJ - FAIRNESS FACTORS
1) Trial in the forum is not gravely difficult and inconvenient
2) Forum state’s interest in convenient relief
3) π’s interest in convenient relief
4) interstate judicial system’s interest in obtaining the most efficient resolution
5) shared interest of the several states in furthering fundamental substantive social policies
Civ Pro - SERVICE OF PROCESS
Any person 18+ and not a party may serve
Service is effectuated by:
1) personal service
2) service left at ∆’s usual abode w/ someone of suitable age and discretion residing there
3) according to state rule providing for service
4) by mail if ∆ accepts waiver of service
Civ Pro - SMJ - FEDERAL QUESTION
Claim or CoA arises under the US Constitution, federal law, or a treaty
**Must be pled in COMPLAINT, not defense*
Civ Pro - SMJ - DIVERSITY
1) Complete diversity of citizenship between πs and ∆s AND
2) An amount in controversy exceeding $75K
Civ Pro - SMJ - AGGREGATION
1) π can aggregate all claims against a single ∆
2) π can aggregate all claims against JSL ∆s
3) π cannot aggregate claims against non-JSL ∆s
4) Multiple πs cannot aggregate against a single ∆ UNLESS enforcing a single title or right in a common and undivided interest
5) can’t aggregate claim and counterclaim
Civ Pro - SMJ - SUPPLEMENTAL JX
A federal court may entertain a claim otherwise lacking SMJ if such claim shares a common nucleus of operative fact w/ a claim involving SMJ and any added party does not destroy diversity.
Civ Pro - VENUE ROADMAP
1) Is original venue proper?
2) Is proposed venue proper?
3) Is transfer proper?
Civ Pro - PROPER VENUE
Any district where:
1) At least one ∆ resides if all ∆’s reside in same state
2) A substantial part of the events giving rise to the COA occurred,
3) BUT if neither applies:
- - In diversity actions, where any ∆ would be subject to PJ if district were treated as a state
- -For FQ, where any ∆ may be found
Civ Pro - TRANSFER OF VENUE
Venue may be transferred to another district where the action might have been brought if the court finds it appropriate after balancing the relative conveniences of parties, witnesses, and evidence.
Civ Pro - FORUM NON CONVENIENS
PUBLIC FACTORS
1) Availability of alternative forum
2) π’s choice of forum
3) Forum’s interests
PRIVATE FACTORS
1) Convenience of parties and Ws
2) Location of evidence
3) Where CoA arose
Civ Pro - ERIE
In diversity cases, apply state substantive and federal procedural law.
1) If fed rule is on point, do state and fed on the issue conflict? If NO, use fed.
2) If YES - if fed rule is a statute or FRCP, was it properly enacted under REA? If YES, use fed.
3) If NO - is use of one rule over the other outcome determinative? If YES, substantive.
4) If NO - on balance, will use of fed rule so likely effect outcome that it would violate significant federalism or state sovereignty concerns? If YES, use state.
5) On balance, would failing to follow state law encourage forum shopping in fed ct? If NO, use fed.
Civ Pro - REMOVAL
- Requires fed jx
- Only a ∆ can remove and all ∆s must join
- Can’t remove if based on diversity and ∆ is a citizen of state where filed
- Demand for removal must be made w/in 30 days of when the grounds for removal become apparent. If based on diversity, must ALSO be removed w/in 1 year of the initial filing.
Civ Pro - EQUITABLE ABSTENTION
A federal court will retain jx over a constitutional challenge to a state law but will refrain from deciding the question until the state courts have interpreted the state law.
EXCEPTIONS:
1) potential for great and immediate irreparable injury
2) bad faith in the prosecution of the state action
3) harassment
Civ Pro - COMPLAINT
A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or 3P claim, shall contain a:
1) short and plain statement of the grounds upon which the ct’s jx depends,
2) short and plain statement of the claim showing the pleader is entitled to relief, and
3) demand for judgment for the relief the pleader seeks.
Civ Pro - AMENDED PLEADINGS
A party can amend AS OF RIGHT w/in 21 days of filing OR if an answer/motion to dismiss has already been filed, w/in 21 days of that filing.
A party can amend w/ CONSENT of all opposing parties or PERMISSION of the ct any other time.
Civ Pro - RELATION BACK
∆ can be added after running of SOL and the amendment will relate back, IF:
1) amendment arises out of the same conduct, transaction, or occurrence at the original complaint, AND
2) w/in 120 days after filing the complaint, new ∆:
- -received notice of the action such that he will not be prejudiced AND
- -knew or should have known that, but for a mistake concerning identity, he would have been named originally
Civ Pro - ANSWER
Time = 21 days if served; 60 if service was waived
Content = must specifically admit or deny each allegation; defenses not asserted may be waived
Civ Pro - SANCTIONS
1) By presenting a document to the court, an attorney or pro se litigant certifies it is:
- not for an improper purpose
- based on evidentiary support
- warranted by existing law or a non-frivolous argument for changing it
2) Complaining party must 1st draft motions for sanctions and serve it on the other party - DO NOT file w/ ct until 21 days after service
3) Does NOT apply to any discovery matter
Civ Pro - TRO
Available if bond posted and movant shows:
1) Likelihood of success on the merits
2) Irreparable harm
3) Balance of hardships favors injunction
4) Public interest not harmed
5) Notice OR tried to give notice and need TRO to avoid immediate harm
Expires after 14 days unless extended on good cause shown
Civ Pro - PRELIMINARY INJUNCTION
Available if bond posted and movant shows:
1) likelihood of success on the merits
2) Irreparable harm
3) Balance of hardships favors injunction
4) Public interest not harmed
5) Notice to adverse party
Civ Pro - COMPULSORY JOINDER
1) Is ∆ a NECESSARY party?
- complete relief cannot be afford w/o him
- claims interest in case that absence could impair his ability to protect
- claims interest in case that could lead to inconsistent obligations
2) Is joinder POSSIBLE w/o destroying ct’s jx?
3) If not, is party INDISPENSABLE?
- prejudice to him or others
- prejudice can’t be avoided by shaping relief
- adequate relief can’t be granted w/o him
- π has an adequate remedy if action is dismissed
Civ Pro - PERMISSIVE JOINDER
1) Claims related to same transaction or occurrence
2) Common questions of law or fact
3) Party to be joined will not destroy diversity
Civ Pro - SCOPE OF DISCOVERY
Any non-privileged matter that is relevant to a claim or defense.
Work product is discoverable on a showing of substantial need and inability to otherwise obtain w/o substantial hardship.
Civ Pro - VOLUNTARY DISMISSAL
π can dismiss ONCE w/o prejudice as a matter of right BEFORE ∆ has answered or filed a motion of summary judgment.
After that, he needs ∆’s consent or leave of court.
Civ Pro - MOTION TO DISMISS
Must be filed BEFORE an answer.
Can assert these grounds:
1) Lack of SMJ
2) Lack of PJ
3) Improper venue
4) Insufficient process
5) Insufficient service of process
6) Failure to state a claim upon which relief could be granted
7) Failure to join an indispensable party
Civ Pro - SUMMARY JUDGMENT
Ends a case, CoA, or issue where movant can show:
1) there is no genuine issue of material fact, AND
2) as a matter of law, movant prevails
Allowed after 20 days from the commencement of an action.
Civ Pro - MOTION FOR JML
May be made by ∆ after the close of π’s evidence OR by either party at the close of all evidence, but before submission to the jury.
May only be granted if no reasonable person could differ as to the outcome.
Civ Pro - RENEWED MOTION FOR JML
Only permitted if party properly and timely moved for judgment in the 1st place.
Only granted if no reasonable person could differ as to the outcome.
Must be made w/in 28 days of entry of judgment.
Civ Pro - MOTION FOR NEW TRIAL
If made w/in 28 days of entry of judgment, can be granted if:
1) jury returns a verdict that ignores the great weight of evidence
2) jury returns a verdict w/ damages that are grossly excessive
3) judge, parties, or Ws violate rules of trial AND the error likely affected the result of trial AND the moving party objected to the error when he had the opportunity to do so
4) the party discovered new evidence after the verdict that could not, w/ reasonable diligence, have been discovered before the verdict, is not solely for impeachment, and would likely change the result.
Civ Pro - MOTION FOR RELIEF FROM JUDGMENT
1) Mistake, inadvertance, or excusable neglect
2) Newly discovered evidence
3) Fraud, misrepresentation, or misconduct by a party
4) Judgment is void
5) Judgment has been satisfied
Civ Pro - DEFAULT JUDGMENT
A default judgment may be entered by a CLERK if:
1) the claim is for a sum certain,
2) ∆ failed to appear, AND
3) ∆ is not an infant or incompetent
A COURT may enter a default judgment, not to exceed the demand for relief in the pleadings, if:
1) ∆ failed to appear AND
2) ∆ is not an infant or incompetent unrepresented by a fiduciary
Civ Pro - JURY TRIAL
7th A = right to jury trial in suits at common law where value in controversy shall exceed $20.
Waived expressly or by failure to demand w/in 14 days of the last pleading directed to a jury triable issue.
Inconsistent determinations by a jury are erroneous if they are irreconcilable.
Instructions:
(1) party may propose no later than close of all evidence
(2) party must object before jury deliberations begin
If jury returns a damages award judge believes is unconscionably low, only option is to order retrial of the issue
Civ Pro - CLASS CERTIFICATION
1) Numerosity - large # of claimants
2) Commonality - common questions of law or fact
3) Typicality - named π is typical of class members
4) Adequacy - competency of π’s counsel
5) AND any one of the following:
- Risk of inconsistent results
- Injunctive or declaratory relief appropriate
- Common questions among class predominate over other claims
Civ Pro - CLAIM PRECLUSION
Bars entire case once judgment has been rendered on a CoA, if:
1) the earlier judgment is a valid, final judgment on the merits,
2) the cases are brought by and against the same party
3) the same CoA is involved in both suits
4) the CoA was or could have been litigated in the prior action
Civ Pro - ISSUE PRECLUSION
A party is precluded from litigation one or more issues, if:
1) the first case ended in a valid, final judgment on the merits
2) identical issue is actually litigated and determined in the 1st case
3) the issue was essential to the judgment
Can be used offensively if the claimant can ALSO show:
1) ∆ had a fair opportunity to be heard in the first case
2) the posture of the case is such that it would not be unfair to apply collateral estoppel
Civ Pro - APPEAL
Federal courts have jx to hear only appeals seeking review of:
1) final judgments
2) orders pertaining to preliminary injunctive relief
3) order pertaining to class certification
4) certified orders
5) orders on collateral matters
Must be filed w/in 30 days of entry
- If timely motion for new trial or RJNOV is made, 30 days from entry of order denying that motion
- Upon showing of excusable neglect, w/in 30 days after the appeal has expired, the ct may extend the time for filing by 30 days from the original time or 14 from the order granting the extension
