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Civ Pro Flashcards

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1
Q

PJ - Overview

A
  • Can P sue D ~in this state~?
  • 2-Step Analysis:
    1. Satisfy a statute (just mention and move on), AND
    2. Satisfy constitutional DP
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2
Q

PJ - Con DP - Overview

A

D must have “such minimum contacts with the forum so jx does not offend traditional notions of fair play and substantial justice”

  • 3 factors:
    (a) Contact
    (b) Relatedness
    (c) Fairness
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3
Q

PJ - Con DP - Factors

A
  • Contact:
    (a) Purposeful availment - D reaching out to forum
    (b) Foreseeability - D foresees getting sued in forum
  • Relatedness - Does P’s claim arise from D’s contact?
    (a) If so => Specific PJ
    (b) If no => General PJ IF D “at home” in forum
    • Person always at home in domicile
    • Includes tag jx (voluntarily present)
    • Corp at home: (1) Where incorporated, AND (2) PPB
  • Fairness - ONLY for Specific PJ; factors:
    (a) Burden on D and witnesses = severe disadvantage for D
    (b) State’s interest (always true if P’s a citizen of the forum)
    (c) Plaintiff’s interest
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4
Q

Notice/Service - Overview

A
  • D entitled to notice “reasonably calculated, under all the circumstances, to apprise interested parties of the action
  • Document reqs:
    (1) Summons, AND
    (2) Copy of the complaint
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5
Q

Notice/Service - Details

A
  • Who can serve? - Any nonparty >= 18 yo
  • When? - In US, 90 days after filing complaint
  • How?
    (a) On person in US:
    • Personal service - Given to D personally anywhere
  • ** Substituted service - (1) At D’s usual above [where living now], AND (2) To someone of suitable age and discretion who resides there
  • *** Service on D’s agent - OK if in scope of agency
  • ** State law methods - OK to use method of state (1) where fed court sits, OR (2) where service is made
    (b) On a bus/org in US:
    • Officer, managing or general agent
    • State law methods - OK to use method of state (1) where fed court sits, OR (2) where service is made
      (c) On minor/incompetent in US - Any method permitted by law of state where service is made
      (d) In foreign country:
      (a) Int’l agreement (e.g. Hague)
      (b) As directed by US court
      (c) If reasonably calculated to give notice:
    • Method allowed by foreign law
  • ** Method directed by foreign official in response to letter rogatory
  • *** Personal service therein (unless prohibited)
  • ** Mail sent by clerk of US court requiring signed receipt
  • Waiver - Mail to D a notice and request to waive, including copy of complaint and 2 copies of waiver form, w prepaid return. D returns in 30 days (or 60 outside US).
    (a) Waiver =/ waiver of defenses
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6
Q

SMJ - Diversity - Overview

A

Requirements:

(1) Case is either (a) bw citizens of different states, OR (b) bw a citizen of a state and a citizen of a foreign country, AND
(2) Amount if controversy >$75k

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7
Q

SMJ - Diversity - Citizenship

A
  • Complete Diversity Rule - No diversity of ANY P is citizen of same state as ANY D
    (a) NB: No alienage if green card alien is domiciled in same state as litigant on other side
  • Citizenship of natural person
    (a) Citizenship = domicile
    • Domicile requires (1) physical presence, AND (2) intent to make that your home
  • Citizenship of corp - (1) State where incorporated, AND (2) State w PPB/nerve center
  • Citizenship of unincorporated assn - Citizenship of all of its members
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8
Q

SMJ - Diversity - AIC

A
  • Look only at claim itself
  • Good faith claims are OK UNLESS clear to a LEGAL CERTAINTY that recovery can’t exceed $75k
  • Aggregation - Can aggregate claims of any ONE P against any ONE D
    (b) BUT w joint claims (e.g. joint tortfeasors), # of parties irrelevant
  • Equitable relief - Meets AIC req if EITHER:
    (a) P views cost to itself as >$75k
    (b) D views complying w injunction as >$75k
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9
Q

SMJ - Fed Court Exclusions

A

Divorce, alimony, child custody, and to probate and estate

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10
Q

SMJ - Fed Q

A
  • P’s claim “arises under” federal law

* Well-pleaded complaint rule - Ask if P is enforcing a federal right

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11
Q

SMJ - Removal

A
  • Always about D removing, NOT P
  • When? - No later than 30 days of service (NOT filing) of the first paper that shows the case is removable (often complain)
  • Who must join? - All Ds who have been served w process
    (a) Timing note - New service starts 30-day clock anew
  • What cases?
    (a) Diversity
    • EXCEPT: (1) If any D is a citizen of the forum, OR (2) >1 year after the case was filed (e.g. P drops claim against in-state D in good faith)
      (b) Fed Q
  • To what fed court? - Fed district “embracing” the state court
  • Process:
    1. D files notice in fed court stating grounds, attaching all docs served on her
    2. D serves a copy of notice
    3. D files copy of notice in state court
    4. If P wants remand:
    (a) For reason OTHER than lack of SMJ - Move within 30 days
    (b) For lack of SMJ - Move anytime
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12
Q

SMJ - Supplemental

A
  • Deals w getting CLAIMS into a fed court case that don’t invoke diversity or fed q
  • EACH claim must have fed SMJ. If no diversity or fed q => supplemental
  • Test = “Common nucleus of operative fact”
    (a) ALWAYS met when claim arises from same “transaction or occurrence”
    (b) LIMIT - In DIVERSITY case, claims by P CANNOT invoke supplemental
  • ** EXCEPTION - If multiple Ps and claim by 1 doesn’t meet AIC
  • Discretion - Can deny supplemental if state law claim is complex or state law issues would “predominate”
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13
Q

Law Applied - Erie

A

Step 1 - Is there some fed law on point that directly conflicts w state law? If so, apply if valid (“arguably procedural”; all FRCP valid).

Step 2 - If no fed law on point, apply state law IF issue to be decided is substantive. Substantive:

(a) Elements of a claim or defense
(b) SoL
(c) Rules for tolling SoL
(d) Conflict/choice of law rules
(e) Standard for granting new trial bc damages excessive/inadequate

Step 3 - If no fed law on point and issue not one of 5 above, determine if issue is substantive. Factors to weigh:

(a) Outcome determinative - If so, more likely substantive
(b) Balance of interests
(c) Avoiding forum shopping

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14
Q

Law Applied - FCL

A
  • No general FCL

* But, e.g., preclusive effect of federal judgments, int’l relations, admiralty, disputes bw states, Bivens actions

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15
Q

Venue - Overview

A
  • WHICH federal court
  • Any district where:
    (a) All Ds reside, OR
    (b) A substantial part of the claim arose
  • DOES NOT apply to removed cases
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16
Q

Venue - Residence

A
  • If D doesn’t reside in US, venue OK everywhere
  • If all Ds reside in diff districts of the forum state, venue OK in a district where any D resides
  • Humans - Reside in district where domiciled
  • Business - All districts where subject to PJ
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17
Q

Venue - Transfer

A
  • Can transfer to transferee that’s a proper venue and has PJ over D (without waiver by D)
  • Choice of law - Transferee applies law of transferor UNLESS (1) transfer bc forum selection clause, OR (2) transferor was improper venue
  • 2 transfer statutes:
    (1) If original district is proper venue, can transfer based on convenience of parties and witnesses and in the interest of justice - Look for factors sowing transferee is “center of gravity”
    (2) If original district is IMproper venue, court may transfer in the interest of justice OR dismiss
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18
Q

Venue - Forum Non Conveniens

A
  • Other court IN DIFFERENT JUDICIAL SYSTEM is center of gravity, so court dismisses or stays the case. Transfer is impossible.
  • Other could must be available and adequate
    (a) Adequate UNLESS P can get NO remedy
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19
Q

Pleadings - Complaint

A
  • Requirements:
    (1) Statement of grounds of SMJ,
    (2) Short and plain statement of claim showing entitlement to relief, AND
    (3) Demand for relief sought
  • Standard - Twombly/Iqbal facts supporting a plausible claim
    (a) Claims requiring pleading w particularity/specificity: Fraud, Mistake, Special Damages
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20
Q

Pleadings - D’s Response - Overview

A
  • R12 requires response by:
    (1) Motion, OR
    (2) Answer
  • Timing:
    (a) 21 days after service of process
    (b) If waived service, 60 days from P’s mailing of waiver form
21
Q

Pleadings - D’s Response - R12 Motions

A
  • 12(b) defenses:
    (1) Lack of SMJ
    (2) Lack of PJ - WAIVABLE
    (3) Improper venue - WAIVABLE
    (4) Improper process - WAIVABLE
    (5) Improper service of process - WAIVABLE
    (6) Failure to state a claim
    (7) Failure to join indispensable party
  • Timing/waiver:
    (a) First R12 filing - 2, 3, 4, 5
    (b) Any time through trial - 6, 7
    (c) Any time - 1
22
Q

Pleadings - D’s Response - R12 Answer

A
  • Functions:
    (1) Respond to complaint’s allegations - Admit, Deny, or State lack of sufficient information to admit or deny
    (a) Lack of info has effect of denial, but can’t use if answer is in your control
    (b) Failure to deny = admission EXCEPT for damages
    (2) Raise affirmative defenses
  • Timing note - If filed other R12 motion and was denied, must file answer within 14 days
23
Q

Pleadings - Amendments

A
  • Right to amend:
    (a) P - Can amend complaint ONCE no later than 21 days after D serves first R12
    (b) D - Can amend answer ONCE no later than 21 days of serving (saves waivable defenses)
  • No right to amend - Seek of leave of court to amend if justice so requires
    (a) Factors: Delay, prejudice, futility of amendment
  • Variance - Evidence at trial doesn’t match what was pleaded
  • Amendment after SoL (“Relation Back”)
    (a) If amendment relates back to timely filed claim, not barred
    (b) Relate back if amended pleadings concern the same conduct, transaction or occurrence as original
    (c) If changing D: (1) Amendment relates back, (2) New D knew of THIS case within 90 days of filing, AND (3) New D knew or should’ve known that she would’ve been named originally but for mistake
24
Q

Pleadings - Supplemental

A
  • Deal w things happened after pleading was filed

* Must move to amend; court has discretion

25
Q

R11 Sanctions

A
  • Must first serve motion on other party; then has 21-day safe harbor to fix it. If not fixed, THEN file w court.
  • If sua sponte, no safe harbor.
26
Q

Joinder - Multiple Ps/Ds

A

Allowed if claims (1) arise from the same T/O, AND (2) raise at least one common question

27
Q

Joinder - Necessary Parties

A
  • Party necessary if:
    (1) Without A, court cannot accord complete relief among existing parties, OR
    (2) A’s interest may be harmed if not joined, OR
    (3) A claims an interest that subjects a party (usually D) to a risk of multiple obligations
  • If necessary party CAN’T be joined (e.g. no PJ) - (1) Proceed without A, OR (2) Dismiss
    (a) Court weighs: alternative available forum, actual likelihood of harm, ability to shape relief to avoid some harm
    (b) If dismiss, party called “indispensable” (12(b) defense)
28
Q

Joinder - Claims by D

A
  • Counterclaim - Against opposing party. Two types:
    (a) Compulsory (arises from same T/O as P’s claim) - MUST be asserted or you waive it
    (b) Permissive (doesn’t arise from same T/O) - Allowed, but not required
  • Crossclaim - Against a co-party; MUST arise from same T/O, but not compulsory
29
Q

Joinder - Impleader

A
  • Bringing in a third party
  • D can do so ONLY to shift to the TPD liability that D will owe to P (often indemnity or contribution)
  • Steps:
    1. D files TP complaint naiming TPD
    2. D serves process on the TPD.
  • Right to implead within 14 days of serving answer. After, need permission.
30
Q

Joinder - Intervention

A
  • Third party wants to join case, either as P or D.
  • Application to intervene must be timely.
  • Intervention of right - TP’s interest harmed if not joined and not adequately represented now.
  • Permissive intervention - TP’s claim or defense and the pending case have at least one common question. Discretionary.
31
Q

Class Action - Requirements

A

Must have all four initial requirements:

(1) Numerosity - Too many members for joinder
(2) Commonality - Some issue in common to all class members
(3) Typicality - Rep’s claims are typical of those in the class, AND
(4) Representative adequate - Class rep fairly and adequately represents class

32
Q

Class Action - Types

A 
Type 1 - Prejudice (rare)
* Class treatment necessary to avoid harm either to class members or the non-class party (e.g. limited fund of money)

Type 2 - Class seeks injunction/DJ
* Generally no damages

Type 3 - Damages

  • Requirements:
    (1) Common questions predominate over individual questions
    (2) Class action is the superior method to handle the dispute
  • If certified, court notifies class members they are in a class (usually by mail). Notice that: (1) can opt out, (2) bound if don’t, (3) can enter a separate appearance
33
Q

Class Action - Procedural Issues

A
  • Certification
    (a) If court certifies, also (1) defines class and claims, issues, or defenses, and (2) appoints class counsel
    (b) Can move to appeal a loss of certification, but discretionary
  • Settlement/dismissal requires court approval
  • When SMJ is diversity:
    (a) For citizenship, consider only the Rep
    (b) For AIC, Rep’s claim must >$75k
  • CAFA - Gives SMJ separate from diversity if (1) >=100 members, (2) any class member is diverse from any D, AND (3) aggregated claims of class >$5m
34
Q

Discovery - Initial Required Disclosures

A
  • Within 14 days of R26(f) conference
  1. Identities of persons who have discoverable info you may use to support (Name, phone number, address, and topics on which they have evidence)
  2. Documents and things you may use to support (copies or descriptions OK; doesn’t apply to things outside your custody/control)
  3. Computation of relief and documents/ESI supporting it
  4. Insurance coverage
35
Q

Discovery - Disclosures about EW

A
  • Applies to EWs who may be used at trial, not mere consulting experts
  • Must disclose (1) identity, and (2) written report
  • Written report must include: (1) opinions, (2) bases for opinions, (3) facts used to inform opinions, (4) EW’s qualifications, and (5) EW’s compensation
36
Q

Discovery - Required Pretrial Disclosures

A
  • No later than 30 days before trial

* Detailed info about evidence, including identity of witnesses and documents/ESI/things to be introduced

37
Q

Discovery - Tools

A
  • Can’t send requests until after 26(f) conferences EXCEPT RFPs (>21 days after service of process)
  • Depos
    (a) Limits: (1) No more than 10 depos wo approval/stipulation, (2) Can’t depose same person twice wo approval/stipulation, (3) Can’t exceed 1 day of 7 hrs wo approval/stipulation
  • Rogs - Sent only to parties, never nonparties
    (a) 30 days (+3 if mailed) to respond
    (b) Can’t say IDK
    (c) Max 25 INCLUDING subparts
  • RFPs
    (a) 30 days to respond
    (b) Only to parties; get nonparties via subpoena
  • Medical exam
    (a) REQUIRES court order. Show: (1) Person’s health is in actual controversy, and (2) Good cause
    (b) Applies only to someone in party’s custody or legal control (NOT employees)
    (c) If examined party requests report, must produce all other medical reports and waives doctor/patient privilege
  • RFAs
    (a) 30 days to respond, denying specifically or objecting
    (b) Failure to deny/object = deemed admission
38
Q

Adjudication wo Trial - PI

A
  • Maintains status quo until trial
  • Can’t be granted ex parte
  • Must show:
    (1) Irreparable harm
    (2) Likely to win on the merits
    (3) Balance of hardship
    (4) In the public interest
  • If granted, must post bond
  • In granting or denying, court must make specific findings of fact and separate conclusions of law - NOT true for TRO
  • Grant is appealable - NOT true for TRO
39
Q

Adjudication wo Trial - TRO

A
  • Maintains status quo until hearing on PI
  • Court issues TRO ex parte if: (1) Applicant files paper under oath showing that, if TRO not issues, will “suffer immediate and irreparable harm” if other side given time to answer, AND (2) Applicant certifies in writing effort to give oral or written notice to D
  • If issued, applicant posts bond to cover other side’s costs and damages in case wrongful
  • TRO must: (1) state its terms specifically, (2) detail what D must do (or refrain from doing), (3) state why it was issued and why threatened injury was irreparable
  • Effective for 14 days. Can be extended w good cause for another 14 days. If extended beyond 28 days, treated as PI.
40
Q

Adjudication wo Trial - Voluntary Dismissal

A
  • Right to voluntary dismissal before D serves an answer or motion for SJ
  • If dismiss once, dismissal of second case is WITH prejudice
41
Q

Adjudcation wo Trial - Default Judgment

A
  • D doesn’t respond to complaint in time (21 days after service; or 60 days from mailing of waiver if waived)
  • Clerk notates default on docket sheet upon request by P
  • How to get default JUDGMENT:
    (a) Clerk can enter if: (1) D didn’t respond at all, (2) Claim itself is for a sum certain in money, (3) Claimant gives an affidavit of sum owned, AND (4) D is not minor/incompetent
    (b) Otherwise, go to judge for hearing. (D gets notice of hearing ONLY if appeared in case.)
  • D can move to set aside default/default judgment if: (1) good cause, AND (2) viable defense
42
Q

Adjucation wo Trial - 12(b)(6)

A

Looking only at P’s factual allegations and taking them as true, do they state a plausible claim?

43
Q

Adjudication wo Trial - SJ

A

Must show (1) no genuine dispute on a material fact, AND (2) entitled to judgment as a matter of law

  • Views evidence in light most favorable to non-moving party
  • Discretionary
  • Must move within 30 days of close of discovery
44
Q

Jury Trials

A
  • Demand for jury trial in writing no later than 14 days after service of last pleading addressing a jury triable issue
  • Juror strikes:
    (a) Unlimited for cause
    (b) 3 peremptory per side
  • Min 6 jurors, max 12
  • Unanimous verdict required, unless agreed otherwise
  • Entry of judgment
    (a) General verdict - Clerk enters
    (b) Special verdict/general w written qs, and answers are consistent w each other and the verdict - Judge approves, clerk enters
    (c) General w written qs, and answers are consistent w each other BUT NOT w verdict -> Court enters judgment consistent w answers (or tells jury to reconsider or orders new trial)
    (d) General w written qs, and answers are inconsistent w each other and one or more inconsistent w verdict - Court can’t enter a judgment
45
Q

Motions at/after Trial

A
  • JMOL/Directed verdict - Before jury; reasonable ppl could not disagree on the result
  • RJMOL/JNOV - After jury; reasonable ppl could not disagree on the result
    (a) Must move within 28 days after entry of judgment
    (b) Must have moved for JMOL before trial; waiver
    (c) Grounds for RJMOL must be same as grounds for JMOL
  • Motion for new trial based on non-harmless error
    (a) Must move within 28 days
46
Q

Appeals - Interlocutory Review

A
  • Reviewable as of Right
    (a) Preliminary and permanent injunctions
  • Interlocutory Appeals Act - Can appeal order if: (1) District judge certifies it involves a controlling issue of law, (2) as to which there is substantial ground for difference of opinion, and (3) CoA agrees
  • Collateral Order Doctrine - CoA has discretion to review order on issue if: (1) Is distinct from merits of the case, (2) Involves an important legal q, AND (3) is essentially unreviewable if parties await a final judgment (rare)
  • CoA has discretion to review certification of class action within 14 days
47
Q

Claim Preclusion/Res Judicata

A

Requirements:

(1) Case 1 and Case 2 were brought by the same claimant against the same defendant
(2) Case 1 ended in a valid final judgment on the merits (not jx, venue, indispensable parties)
(3) Case 1 and Case 2 asserted the same claim
* Majority/fed view - Claim is right to relief arising from a T/O
* Minority view - Separate claims for property damage and personal injury

48
Q

Issue Preclusion/Collateral Estoppel

A

Requirements:

(1) Case 1 ended in a valid, final judgment on the merits
(2) Same issue was actually litigated and determined in Case 1
(3) Issue was essential to (the basis for) the judgment
(4) Against whom - IP can be asserted only against somebody who was a party to Case 1 or in privity with a party
(5) By whom - Def by someone who was a party to Case 1. If not party:
* Nonmutual defensive IP - Fed and states say OK if P in Case 1 had a full chance to litigate
* Nonmutual offensive IP - Recent trend to say OK depending on 4 factors: (1) D had a full and fair opportunity to litigate, (2) D had incentive to litigate strongly, (3) P couldn’t have easily joined Case 1, and (4) No inconsistent findings on this issue

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