Civ Pro Flashcards
service of process
Service of the complaint and summons may be made by ANY nonparty who is at least 18 years old. By plaintiff is improper.
collateral-order doctrine
Under the collateral-order doctrine, a court of appeals has discretion to hear and rule on a district court order if it (i) conclusively determines the disputed question, (ii) resolves an important issue that is completely separate from the merits of the action, and (iii) is effectively unreviewable on appeal from a final judgment. A grant of immunity from prosecution, such as the immunity provided by the Eleventh Amendment, can fall within the narrow confines of the collateral-order doctrine because the benefit of immunity would be lost if the party claiming it were wrongfully forced to proceed to trial.
diversity between foreigner
there is no diversity of citizenship because the action is not between citizens of different States.
can the manufacturing company voluntarily withdraw the cross-claim without the approval of the court or the consent of the parties?
A party may voluntarily dismiss a cross-claim (or a counterclaim or third-party claim) without the approval of the court or the consent of the parties before a responsive pleading is served, or if there is no responsive pleading, before evidence is introduced at a hearing or trial. The service of a summary judgment motion by a co-party with respect to a cross-claim (or counterclaim or third-party claim) does not cut off a party’s ability to voluntarily dismiss the claim without court approval or the consent of the other parties. This occurs only after evidence is introduced at the court hearing on the motion. Here, although the motion filed by the advertising firm was a motion to dismiss for failure to state a claim upon which relief can be granted, the attachment of an affidavit presenting evidence beyond the pleadings converted the motion into a summary judgment motion. Nevertheless, because the court had not held a hearing on this motion at which evidence was presented, the manufacturing company can voluntarily withdraw the cross-claim without court approval or the consent of the parties.
A former employee filed a complaint in federal district court under diversity jurisdiction seeking actual and punitive damages from her former employer based on a state law claim. Under the state’s law, unlike federal law, punitive damages are determined by the court rather than a jury. The complaint contained a demand for a jury trial on all issues. Prior to filing an answer or a pre-answer motion to dismiss, the former employer timely filed a motion to strike the jury trial demand with regard to the determination of punitive damages.
How should the court rule on this motion?
Deny the motion, because the right to a jury trial is established under federal law.
Because the Seventh Amendment provides for a right to a jury trial, federal law governs whether there is a right to a jury trial, even when the action is based on state law and the federal court’s jurisdiction is based on diversity. A party may specify the issues for which it is demanding a jury trial. Because the facts indicate that, under federal law, punitive damages are determined by the jury, the former employee can demand a jury trial with regard to the issue of punitive damages.
how soon for interrogatories
In general, a party may not serve interrogatories before the parties have held a Rule 26(f) discovery conference.
can holding company dismiss for lack of personal jurisdiction?
In the absence of evidence that a corporation is the alter ego or mere agent of another corporation, each corporation is a separate legal entity. The fact the one corporation owns a controlling interest in another corporation, as is the case with the holding company and the manufacturer, is not justification for a court to ignore the separate status of each corporation for purposes of determining whether the court has personal jurisdiction over each corporation.
When can two P’s aggregate their claims for purposes of meeting the amount-in-controversy requirement,
when the multiple plaintiffs are enforcing a single title or right in which they have a common or undivided interest, such as tenants-in-common,
-they may aggregate their claims. Since the total of both siblings’ claims exceeds $75,000 ($40,000 + $40,000 = $80,000)
Plaintiff permissive joinder
amount in controversy NOT required, BUT cannot ruin diversity
Defendant permissive joinder
supplemental jurisdiction does not apply to defendants sought to be joined under the permissive joinder rule in a case based EXCLUSIVELY on diversity jurisdiction in which exercising jurisdiction would destroy diversity.
Thus, if the claims are made solely on the basis of diversity jurisdiction, then there must be COMPLETE diversity between the plaintiffs AND the joined defendants, and the claims against each defendant must satisfy the AMOUNT-IN-CONTROVERSY requirement.
compulsory counterclaim
A counterclaim may be asserted by a defendant against a plaintiff without satisfying the jurisdictional amount when the counterclaim is compulsory.
A permissive counterclaim does not qualify for supplementary jurisdiction and therefore MUST satisfy the (1) jurisdictional amount and the rule of (2) complete diversity.
permissive counterclaim
A counterclaim may be asserted by a defendant against a plaintiff without satisfying the jurisdictional amount when the counterclaim is compulsory.
A permissive counterclaim does not qualify for supplementary jurisdiction and therefore MUST satisfy the (1) jurisdictional amount and the rule of (2) complete diversity.
cross claim
cross-claim may be asserted by a defendant against another defendant or by a plaintiff against another plaintiff if the cross-claim arises out of the SAME TRANSACTION or occurrence as the initial claim, WITHOUT regard to the amount in controversy or the citizenship of the parties to the cross-claim as long as the court has subject matter jurisdiction.
Precluded claims in diversity cases
i) Claims by existing plaintiffs (but not defendants) against persons made parties under one of the following Federal Rules of Civil Procedure: Rule 14 (impleader), Rule 19 (compulsory joinder), Rule 20 (permissive joinder), or Rule 24 (intervention);
ii) Claims by persons to be joined as plaintiffs pursuant to Rule 19; and
iii) Claims by persons seeking to intervene as plaintiffs pursuant to Rule 24, when the exercise of supplemental jurisdiction over such claims would be inconsistent with the requirements for diversity jurisdiction under 28 U.S.C. § 1332.
Example 1: Plaintiff, a citizen of Iowa, sues Defendant, a Nebraska corporation, in federal court under diversity jurisdiction for the wrongful death of Plaintiff’s husband. Defendant then impleads Contractor, a citizen of Iowa, under Rule 14, alleging that if Defendant is liable to Plaintiff, then Contractor must indemnify Defendant for any liability to Plaintiff. If Plaintiff then asserts a claim directly against Contractor, because they are both citizens of the same state (Iowa), supplemental jurisdiction in federal court will not apply to the claim, as it would be inconsistent with the requirements for diversity jurisdiction pursuant to §1367(b). Note that Defendant’s claim against Contractor would fall within the federal court’s supplemental jurisdiction, as it is derived from the same operative facts being considered by the court under the claim over which it has original jurisdiction and is not precluded by § 1367(b).
- SUPP EXISTS IF THEIR TO INDEMNIFY D.
- SUPP RUINED IF P CHANGES TO DIRECTLY ASSERTS AGAINT CONTRACTOR.
Example 2: Plaintiff, a citizen of Arkansas, sues Defendant 1 and Defendant 2, both citizens of Oklahoma, in federal court on the basis of diversity jurisdiction, alleging negligence. Defendant 1 seeks to assert a cross-claim for negligence, under the same operative facts, pursuant to Rule 13(g), against Defendant 2. Although there would be no original jurisdiction in federal court for the cross-claim, because Defendant 1 and Defendant 2 are citizens of the same state (Oklahoma) (see § I.C.2. Complete Diversity, supra), the federal court could exercise supplemental jurisdiction over the cross-claim, as it is derived from the same operative facts being considered by the court under the claim over which it has original jurisdiction, and it is not excluded under § 1367(b).
-OKAY IF D1 SUES D2 UNDER SAME FACTS WHEN D1 & D2 SAME STATE.
Personal jurisdiction over foreigners
non-U.S. residents who have contacts with the Unites States
- plaintiff’s claims must be based on federal law
- defendant must have sufficient contacts with the United States as a whole to justify the exercise of personal jurisdiction over the defendant.
Jurisdiction of Full Faith and Credit Clause
Full Faith and Credit Clause applies to the enforcement of a STATE-court judgment by the courts of another state.
(LOOK for it as wrong answer to enforce FEDERAL judgements)
Federal rules of service of process
Federal Rules authorize service only on
(1) a defendant personally,
(2) on a person of suitable age and discretion at defendant’s usual abode, or
(3) on an agent authorized by a defendant or by law to receive service.
state law rules allowed for DIVERSITY JURISDICTION
effect of waiver of service
Under Rule 4(d)(3), if a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside the United States. This is an incentive to waive service, because the normal time period in which an answer must be served is 21 days after service of process. Rule 12(a)(1)(A).
Rule 4(d)(5) specifically provides that waiver of service does not waive any objection to personal jurisdiction or to venue.
If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service. Rule4(d)(4). However, the defendant must still answer the complaint within 60 (or 90, if foreign) days from the date on which the notice was sent.`
Request for waiver
A plaintiff’s notice and request for waiver of service must be in writing and be addressed to the individual defendant, or, for a corporation, to an officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process.
It must be accompanied by a copy of the complaint, two copies of a waiver form, and a prepaid means for returning the form, and it must give the defendant a reasonable time of at least 30 days after the request was sent (or at least 60days if sent to a foreign defendant) to return the waiver. Rule 4(d)(1).
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 within the time remaining for response to the original pleading. Rule 15(a)(3).
class certification reqs (4)
Rule 23(a) requirements:
- numerosity MUST BE IMPRACTICAL FOR JOINDER (e.g. if it were practical, it could have been normal suit),
common questions,
typicality, and
adequate representation
AND MUST FIT IN ONE OF THREE:
A. risk of prejudice - incompatible, inconsistent judgements [DOES NOT REQUIRE NOTICE]
B. final equitable relief - additional monetary cannot be sought
C. Common legal or factual questions
when is class action notification required
as a “risk of prejudice” situation NOT required.
but ONLY in a Rule 23(b)(3) situation.
pretrial disclosures (when, and what)
pretrial disclosures must be made at least 30 days before trial.
Pretrial disclosures include the name and, if not previously provided, the address and telephone number of each witness, separately identifying those a party expects to present and those it may call if the need arises.
timing of demand for jury trial
Any party may demand a jury trial in an action at law, as long as the demand is served within 14 days after service of the LAST pleading.
- Review of a trial court’s factual findings
clearly erroneous
finding is clearly erroneous when, although there is evidence to support it, the appellate court, based on the entirety of the evidence, is left with the definite and firm conviction that a mistake has been committed
- sufficiency of evidence
- NOT credibility of witness
- Review of legal rulings
de novo
appellate court relies on the record created in a trial court and does not entertain the admission of additional evidence, the appellate court reviews the evidence and law without deference to the trial court’s legal rulings. Thus, the appellate court may reach its own independent conclusions as to the applicable law.
- Review of discretionary rulings
abuse of discretion
trial court’s rulings on discretionary matters, such as the admissibility of evidence, sanctions for violation of discovery rules, or the granting or denial of a motion to transfer venue or to sever actions, are generally subject to review under the abuse of discretion standard.
final judgment
is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.
not immediately appealable
MOST INTERLOCUTORY orders, such as the denial of a summary judgment motion, a motion to dismiss, or the granting of a new trial motion
EXCEPTION: THESE ARE IMMEDIATELY APPEALABLE!
1. An order granting, modifying, refusing, or dissolving an injunction; INJUNCTION APPEALABLE IMMEDIATELY AS A MATTER OF RIGHT.
- court denies to appoint a receiver to identify corporate property that could be seized
SMJ waiver
subject-matter jurisdiction may not be waived; rather, an objection may be raised at any time by any party, even on appeal.
Subpoena (to whom)
Nonparties may be compelled to produce documents pursuant to a subpoena.
Request for production (to whom)
request for production of documents can only be made on a party.
only one plaintiff and one defendant – amt in controversy
total value of the plaintiff’s claims is calculated to determine the amount in controversy, REGARDLESS of whether the claims are related to each other
dismissed due to the failure to timely serve process
with prejudice?
When an action is dismissed due to the failure to timely serve process, the dismissal is without prejudice;
irrelevant whether the spouse failed to appear
change domicile JUST for diveristy
A party may voluntarily change state citizenship after the accrual of a cause of action but before the commencement of a lawsuit, and therefore establish or defeat diversity jurisdiction, so long as the change is NOT A SHAM. –> That is, if the change of domicile is intended to be PERMANENT–even if the sole motivation is to create diversity–the change is permissible.
general denial of all allegations
party may make a general denial of all allegations if he, in good faith, does deny all allegations. In this case, the defendant made a general denial and stated that he intended to controvert all the allegations.
timing of polling
After the jury returns a verdict and before the jury is dismissed, the court must poll the jurors individually if a party requests.
when is too late to submit for judgement as a matter of law?
A party who has not submitted a prior motion for judgment as a matter of law may not submit such a motion after the jury has rendered its verdict. After the jury has rendered its verdict IT IS TOO LATE
A party MAY ONLY RENEW a motion for judgment as a matter of law that it has previously made.
Can president not spend Congress explicitly mandates funds to be spent?
If Congress explicitly mandates an allocation, distribution, or expenditure of funds, the President lacks the power to impound those funds (e.g., refuse to spend them or delay their spending)
Equal protection for aliens. How does it change for state interest jobs?
This question involves equal protection based on one’s status as a lawful resident alien. Classifications based on status as a lawful resident of the United States (as opposed to a citizen) are subject to a variety of different standards, depending on the level of government and the nature of the classification. Courts will generally apply the strict scrutiny test and strike down state laws that discriminate against aliens, such as laws prohibiting aliens from owning land, obtaining commercial fishing licenses, or being eligible for welfare benefits or civil service jobs. A growing exception exists, however, for state laws that restrict or prohibit an alien’s participation in government functions. Such laws need only have a rational relationship to a legitimate state interest, and are generally upheld as preventing aliens from having a direct effect on the functioning of the government. Because working as a law enforcement officer is a position involving participation in the governmental function of enforcing law, rational basis is likely the proper standard to apply.
