Civ Pro Essay Flashcards
23(a) Class Action Prerequisites
CANT
Commonality, Adequacy, Numerosity, Typicality
What are the constitutional limitations on PJ?
DPC requires minimum contacts between the defendant and the forum state such that it is consistent with traditional notions of fair play and substantial justice to sue the defendant here (relatedness, convenience, state’s interest)
What does a court look to for PJ minimum contacts?
purposeful availment of the the D to the protection of the forum state’s law and foreseeability
Ways to have general in personam PJ
- Physical presence
- Domicile
- Consent
General in personam PJ and corporations
Must have systematic and continuous contacts that it is essentially be “at home” in the state (so domicile)
Specific in personam PJ
Show minimum contacts, action arising from in-state contacts, and look to long-arm statute
What needs to be present for a preliminary injunction?
BLIP
1) Balancing of harm b/w parties;
2) Likelihood of success on the merits;
3) Irreparable Harm;
4) best interest of the Public
Need hearing and opportunity to be heard
What are the elements of issue preclusion?
SAFE Same issue, Actually litigated, Final Judgment, Essential to prior judgment
What are the elements of claim preclusion?
PAM
sufficiently identical Parties (same P same D);
sufficiently identical causes of Action;
valid, final judgment on the Merits
What are the requirements for a TRO?
A TRO can be issued without notice to the adverse party if the moving party can show
(1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and
(2) the efforts made at giving notice and the reason why notice should not be required.
party seeking TRO must post a bond to cover the costs in the event the TRO is issued wrongfully
Intervention as a matter of right
SAD
(1) the nonparty has an interest in the Subject matter of the action;
(2) the nonparty’s interest is not Adequately represented by existing parties; and
(3) the Disposition of the action may impair the nonparty’s interests
Why have a TRO?
Keeps status quo until hearing on the merits - cannot last more than 14 days w/o good cause
What is the omnibus motion rule?
Under the “omnibus motion” rule, when a party makes a pre-answer motion raising one of defense but omitting others, the party may not make another pre-answer motion raising one of the omitted defenses that was available to the party when the earlier motion was filed
When is process adequately served against a corporation?
service on a U.S. corporation may be effected either by delivering the summons and complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process, or by following state law in the state where the district court is located or where service is made.
O(officer) M(managing agent) A(appointed agent) G(general agent) A(agent authorized by law) S (state law where process is served or court is located)
Proper venue:
- judicial district in which any defendant resides (if al live in same state), or
- a judicial district in which a substantial part of the events or omissions on which the claim is based occurred.
If those two are not present, then venue is proper where any defendant has personal jurisdiction.
What are the court ordered remedies for when a party intentionally destroys information?
DUI
(1) may presume the lost information was unfavorable to the party,
(2) instruct the jury that it may or must presume the information was unfavorable, or
(3) dismiss the action or enter a default judgment.
What are court remedies for curing prejudice by lost information?
upon finding prejudice to another party, order measures no greater than necessary to cure the prejudice
When is permissive joinder of parties/claims allowed?
Two plaintiffs may join their claims against one defendant as long as the claims stem from the same transaction or occurrence and share a common question of law and fact.
When is joinder required?
Absent parties may be forced to join a case if they are deemed necessary parties
When is a party necessary?
- Without absentee, court cannot grant complete relief,
—- Consider whether multiple suits might follow if
absentee is not made a party - Absentee has a legal interest that may be impaired or impeded, or
- Absentee has an interest that creates a risk of multiple or inconsistent rulings and obligations
When is a party indispensable?
if a necessary party cannot be joined, ask whether the party is so indispensable that the case should be dismissed; court looks at these factors:
- Is an alternative forum available?
- What is the likelihood of prejudice to the parties or others if the case goes forward?
- Can the court shape potential relief to avoid prejudice?
- Would P have an adequate remedy if the case is dismissed?
offensive collateral estoppal
in limited instances, a party may use issue preclusion offensively to estopp a party from denying an issue that it had a full and fair opportunity to litigate in the prior proceeding
nonmutual collateral estoppal
Nonmutual collateral estoppel applies to the use of offensive collateral estoppel by a party who was not part of the initial litigation. In determining whether nonmutual collateral estoppel is available, the federal court will look to the law of the court in which the original proceeding was litigated.
Requirements for summary judgments
Burden for moving party — must show:
1. There is no genuine dispute of material fact; and
2. Moving party is entitled to judgment as a matter of law
(Motion is based on pleadings and evidence submitted)
Must look at all evidence and resolve all doubts in light most favorable to non-moving party
