Civ Pro Flashcards
Venue: residence for business entity
Any judicial district that has PJ over the business entity for the action question
Venue: transfer from proper venue
Party can move to transfer from a proper venue (a) for convenience of parties or witnesses or (b) if consensual. Transfer must be to a district where the case could originally have been filed (PJ; SMJ; proper venue).
Venue—what happens if improper
Court can dismiss or transfer (if in the interests of justice, to a district where case originally could have been filed)
Venue: law applicable on transfer
If proper: law of transferor ct
If improper or transfer is to enforce a forum selection clause: law of transferee ct
FNC
If proper court is in another judicial system, the court may dismiss or stay
Removal and remand timing
Removal
—for diversity case, must be within 1 year of action being commenced, unless p acted in bad faith
—must be within 30 days from the date D receives notice the case is removable
Remand
—if based on defect other than SMJ, must be within 30 days
Removal: venue
The district that embraces the place where the state court action is pending
Default + Default Judgment
Default: notation in record that D has failed to timely answer
Default Judgment: cuts off D’s right to contest liability, but D can contest amount of damages
—entered by clerk: allowed if 1) D has not appeared 2) sum certain 3) not greater than amount stated in complaint 4) D not infant or incompetent. No additional notice needed.
—entered by judge: required if D has appeared in the case. Additional notice of 7 days required
Amendment: changing party
Amendment naming new adverse party will relate back if within the time for service of process, 1) the new party had sufficient notice of the action to avoid prejudice and 2) knew or should have known that, but for mistake re identity, she would have been named originally.
Rule 11 + sanctions
Atty certifies that to the best of her knowledge, pleading:
1) is not presented for improper purpose
2) legal contentions are non-frivolous
3) factually contentions are likely to have evidentiary support upon further investigation
4) denials of factual contentions are warranted
Sanctions
—ct can raise on its own and issue OSC
—party can serve motion on opponent, and if opponent fails to cure within 21 days, party can file with court
—no monetary sanction can be imposed on represented party for violation of verification of legal contentions
3P Claim (Impleader)
∆ bringing in 3P to shift some PORTION of liability. If ∆ is claiming that 3P was 100% responsible, that does NOT work. Need SMJ, which will be satisfied by Supp JX (b/c CNOF).
Timing: w/in 14 days of serving answer; after that, need to seek leave
Jury trial rights: case w/ legal and equitable claims
Legal claim is tried first to a JURY; then equitable claim is tried to the COURT (and jury’s findings of fact bind the judge)
∆ claiming damages and an injunction CANNOT BE DENIED a jury on damages issues on the ground they are incidental to equitable relief
Trial of legal and equitable claims–what order?
If legal and equitable claims are joined in one action involving common fact issues, the legal claim should be tried first to the jury and then the equitable claim to the court (the jury’s finding on fact issues will bind the court in the equitable claim).
Is federal regulation of the subject matter sufficient to confer FQ jurisdiction in a Breach of K action?
No
Alienage JX
π (U.S. citizen) v. ∆ (citizen of foreign country (e.g., green card holder))
Test for person establishing new domicile
(1) presence in new place and (2) intent to remain for foreseeable future
When is citizenship tested for diversity purposes?
At the time of filing
Where is a corp’s PPoB?
Its nerve center/headquarters: where its managers direct, control, and coordinate corporate activities
What is the standard for the amount in controversy requirement under diversity jx?
Plaintiff’s god faith claim that the amount in controversy exceeds $75k is sufficient, unless it is clear to a legal certainty that she cannot recover more than $75k.
Aggregation to meet AIC requirement
One π can aggregate all claims against one ∆
Meeting AIC requirement when seeking injunction
(a) is the complained of conduct causing more than $75k harm to π
or
(b) would it cost ∆ more than $75k to comply with injunction
Time for removal
w/in 30 days of service of first document that shows case is removable
2 limitations on removing diversity cases?
(1) if ∆ is a citizen of the forum state
(2) if more than 1 year has passed since case was filed
When ∆ removes, where does ∆ file the notice of removal?
In the federal district embracing the state court where the action was filed
When can a π move to remand?
If removal was improper b/c lack of SMJ, π can move to remand at any time
If removal was improper b/c of anything other than lack of SMH, π must move to remand within 30 days after ∆ filed notice of removal in federal court
Erie approach for the bar (keep it simple): rule + 2 steps
A federal court sitting in diversity applies federal procedural law and state substantive law.
(1) Is there a federal rule on point that conflicts with an applicable state rule?
––Yes: Then federal rule applies, if it is valid (i.e., if it is arguably procedural)
(2) If there is no federal rule on point, is the state rule substantive?
––5 categories of substantive rules: (i) elements of claim or defense; (ii) SoL; (iii) tolling SoL; (iv) conflicts rules; (v) standard for whether to grant new trial b/c jury award is excessive/inadequate
––If not one of those 5 categories, need to apply the following factors…
––––(a) Outcome Determinative: will ignoring state rule affect the outcome of the case?
––––(b) Forum Shopping Deterrence: will ignoring state rule cause an influx of federal filings?
––––(c) Balance of interests: does state or fed have stronger interest?
What needs to be in a federal complaint?
(1) grounds for SMJ
(2) short and plain statement of claim showing entitlement to relief
––Standard (plausibility pleading): facts supporting a plausible claim
(3) demand for relief
Time to answer after denial of 12(b) motion?
14 days
When will an amendment relate back in order to add a ∆?
(1) same t/o; (2) ∆ knew of the case w/in 90 days of filing; (3) ∆ knew or should have known that, but for a mistake, she would have been named originally
When will an amendment relate back in order to add a claim?
Same t/o
R11 certification
(1) not for improper purpose; (2) legal conclusions are warranted; (3) factual contentions and denials have evidentiary support
∆ violates R11 –> what does π do? can court raise sua sponte?
(1) service motion for sanctions ON ∆; (2) if ∆ fails to cure the problem w/in 21 days, only then can π serve the motion on the court
Court can raise sua sponte (issues OSC on party to show why sanctions should not be imposed)
How long does ∆ have after filing his answer to implead at 3P-∆ as a matter of right (i.e., b/f ∆ has to seek leave of court)
14 days
Intervention: as of right v. permissive
Intervention as of right: absentee would be harmed if not joined and her interests are not adequately represented
Permissive Intervention: absentee’s claim/defense have common question
FRCP 23: the four requirements + type of class action
(1) Numerosity
(2) Commonality
(3) Typicality
(4) Adequacy
+
(a) class action is necessary to avoid prejudice;
(b) injunctive relief / declaratory relief; or
(c) common questions predominate + class action is superior method
What does a party have to show to discover consulting expert witness
Exceptional circumstances, such that it is impracticable to obtain the facts/opinions by other means
Are “contention interrogatories” (asking about a party’s legal contentions) allowed?
Yes
How many interrogatories + time to respond?
25, including subparts
30 days from service
In lieu of answering an interrogatory, when can a party simply provide the other party with access to a business record?
When the info requested can be found in the business record and the burden of finding them would be about the same for either party
FED: requirements for medical exam
Must show (1) person’s heath is at issue and (2) good cause. The person to be examined must be within the party’s custody or control (employer/employee will NOT work)
What happens if the court orders a medical exam of π, and then π requests to see the examiner’s report?
π can do this, but it will mean that he will have to produce all medical reports by his own doctors re the relevant condition
Discovery standard: FED v. CAL
FED: Any information relevant to a party’s claim or defense which is proportional to the needs of the case
CAL: Any information relevant to the pending action, taking into account privacy concerns under CA constitution
When is WP discoverable?
(1) substantial need (2) avoid undue hardship
Voluntary dismissal as a matter of right
π can do this once; must be before ∆ files answer or MSJ
Does the judge assess credibility on MSJ?
NO
Jury trial demand
Must be made in writing no later than 14 days after services of last PLEADING that addresses a jury triable issue (typically, the answer)
Timing for relief from judgment
Clerical Error: Any time Mistake: reasonable time ≤ 1 year Fraud: reasonable time ≤ 1 year New evidence (could not have been discovered with due diligence in 28 days): reasonable time ≤ 1 year No SMJ (void judgment): reasonable time
Appeal: where and when to file notice?
District court; 30 days after entry of judgment
Interlocutory Appeals Act: when is appeal of non-final order allowed?
(1) district judge certifies it involves a controlling issue of law (2) of which there is substantial ground for disagreement and (3) Court of Appeals agrees to hear case
Collateral Order Rule
Appellate court has discretion to hear ruling on an issue if (1) distinct from merits; (2) important legal question; (3) it’s unreviewable if parties wait for final judgment
Grounds for judge to enter final judgment as to one party, but not another
Express finding that there is no just reason for delay
Standard of review for content of jury instruction? for whether jury instruction should have been given?
Content: de novo
To instruct or not to instruct: abuse of discretion
Claim Preclusion
(1) Same claim
(2) Same claimant against same ∆
(3) Valid and final judgment
(4) On the merits
Issue Preclusion
(1) Same issue
(2) Valid and final judgment
(3) Necessary to judgment
(4) Actually litigated and determined
Issue preclusion can only be asserted against someone who was a party to Case 1 or in privity w/ a party in Case 1
Defensive non-mutual: OK
Offensive non-mutual: OK if fair and reasonable
When will costs NOT be awarded where a court grants a party’s motion to compel?
Trigger: Party fails to produce –> OC files motion to compel.
If the court grants the motion to compel, costs WILL be awarded, UNLESS: (i) the movant filed the motion before attempting in good faith to obtain disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances exist that make an award of expenses unjustified.
