Civ Pro Final Flashcards
Concurrent Jurisdiction:
Concurrent Jurisdiction: The case can be filed in both state or federal court –> If a federal court has subject matter jurisdiction, then the state does too. But not vice versa.
Subject Matter Jurisdiction:
Subject Matter Jurisdiction:
The power that the court has over a type of case. This can be though…
(1) Federal Question
(2) Diversity
SMJ (1) Federal Question
General federal question grants federal district courts original jurisdiction over cases “arising under federal law.
*Must be the plaintiffs cause of action, and cannot be the defendants argument / claim
SMJ (2) Diversity
Diversity is when District Courts shall have original jurisdiction of all civil actions where matter in controversy exceeds sum or value of $75,000 and is between
a) citizens from different states;
b) citizen of a state and foreigner;
c) citizens of a different states and foreigners are additional parties; OR
d) a foreign state as plaintiff and citizen of a state.
- Corporations citizenship for SMJ = Inc. or Nerve Center Test (cxo’s)
in SMJ. A person is a “citizen” of the state in which he or she is domiciled. Domicile is established by (1) physical presence; (2) with intent to remain there.”
Complete Diversity Requirement: No plaintiff can be citizen of the same state as any defendant. *NONE of the defendants can be from the same state as the P
Supplemental Jurisdiction + when it can be declined
Supplemental Jurisdiction:
When federal court has SMJ over a claim, supplemental jurisdiction allows the court to hear additional claims that are sufficiently related to the original claim, even if the original claim does not independently satisfy for federal jurisdiction.
Courts can decline jurisdcition when…
1. There is novel or complex state law
2. State claims dominate the case
3. (no SMJ)
5. Other compelling reasons
Pleadings Order
In a nutshell:
Plaintiff files complaint [Rule 8]
Defendant files
o Answer [Rule 8]
o Motion to dismiss [Rule 12]
o Motion for sanctions [Rule 11]
Plaintiff may
o Respond to motion
o Amend complaint [Rule 15]
General Rules of Pleadings
Rule 8(a) General Rules of Pleadings
(1) a short and plain statement of the grounds for the court’s jurisdiction,
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought
*NO LEGAL ARGUMENTS
*Iqbal: Labels and conclusions/ formulaic reiterations of elements are not enough
Answer
Rule 8(b) Answer
(b) Admissions And Denials.
-> state in short and plain terms, admit or deny or lack of kowledge, for all claims brought by opposign party
Defences
Rule 8(c): Affirmative Defenses
Certain defenses must be “affirmatively” stated, including:
- assumption of risk;
- contributory negligence;
- duress;
- fraud;
- illegality;
- statute of frauds;
- statute of limitations; and
- waiver.
- Exhaustion* (administrative)
If not brought then waived
Defenses and Objections (Motions)
Rule 12b Defenses and Objections
A party may assert the following defenses by motion…
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(6) failure to state a claim upon which relief can be granted; and
o No evidence needed (attack legal claim
o Assume all of the factual allegations of the complaint are true
o Dismissal is granted if the complaint is not plausible on face value
* Plausibility –> pleads factual content that allows court to draw reasonable inference that defendant is liable. (include facts)
Amendment
Rule 15(a) Amendment
(1) Amend ONCE 21 days after the complaint is filed OR 21 days after getting answer
(2) Amending more then once or after the 21 days is permitted with either consent by adversary or by courts leave (courts will grant if justice permits)
Relation back Doctrine
Rule 15(c)(1) Relation back Doctrine
Statue of limitations bars no claims to be brought in amendments unless it relates back to the OG claim
Relates back –> asserts a claim or defense that rose out of the conduct, transaction and occurrence from the original claim
*Look at facts not law (neg and K can both be brought)
Pleading Sanction
Rule (11) Sanctions
(a) Every pleading/written motion must be signed
(b) This certifies that (1) nothing is done for a improper purpose. (2) the argument is not frivolous and (3) You think you will be able to get evidentiary support in discovery.
(c) If you do anything above then you can get sanctioned
**Sanction must be brought as a motion alone
**Give pty 21 days to fix before bringing to court
+Courts can bring sanction on their own initiative if they see fit
Motion to Strike
Rule 12(f)- Motion to Strike
removes “redundant, immaterial, impertinent, or scandalous matter”
*This can be done after complaint and must be before answer
Process of Discovery
Process of Discovery…
I. Conference of the Parties – Rule 26(f)
o meet, make plan, and submit
II. Initial Disclosures – Rule 26(a)
o disclose relevant ppl & things
III. Scheduling – Rule 16(b)
o judge will set
IV. Discovery Tools – Rules 26 -35
V. Pre-trial Disclosures – Rule 26(a)(3)(A)
VI. Final Pretrial Conference & Order – Rule 16(e)
Discovery Tools
Rule 34 Production
o Tangible stuff
o Non Parties subpoena R.45
Rule 33 Interrogatories
o 25 written questions
o RELEVANT ONLY
o Parties ONLY
Rule 36 Requests for Admission
o unlim questions - admit/deny
o No Revenecy issue
o Parties ONLY
Rule 30 Depositions
o 10, 1 day/7 hours
o Non Parties subpoena R.45
Rule 35 Physical/Mental Examinations:
o when it is in controversy
o Parties ONLY
Scope of Discovery
Rule 26(b)(1)
Issue with discovery comes up when something is not (1) Relevant or (2) Proportional
Relevant–> Must prove or disprove something that matters- reading the law in question
Proportional–> What factors aer used…. I.A.P.P.I.B
1. Importance of the issue at stake
2. Amount in controversy
3. Parties access to relevant information
4. Parties resources
5. Importance of discovery in resolving the issue
6. Burden/expense outweigh discovery benefit?
Rule 26(b)(2)(C)
limit frequency or extent of discovery if it is
(i) unreasonably cumulative or duplicative, or can be obtained in less expensive/burdensome way
(ii) they had ample opportunity to obtain themselves
(iii) outside of scope permitted by Rule 26(b)(1).
Rule 26(c)- Protective Order
an order to protect party or person from annoyance, embarrassment, oppression, or undue burden or expense.
Witnesses (types)
Experts
(1) Fact Witness –> testifies about their relationship to an incident
(2) Expert Witness–> testifies about their professional knowledge and opinions
* Need court ruling that this person is an expert
About Expert Witnesses
Rule 26(a)(2) Disclosure of Expert Testimony
In general, a party must disclose to the other party the identities of any witness it may use at trial
Step 1: Expert produces a Rule: 26(a)(2)(B) written report
Step 2: Opposing counsel may depose the expert –> Rule 26(b)(4)(A)
Rule 26(b)(D)(4)- Party cannot usually seek information from adversary’s expert unless under exceptions circumstances (think banana boat)
Discovery Sanctions
Rule 26(g)(1)
Every discovery request, response, or objection must be signed by attorney- certifying that it is: complete and correct, no frivolous argument, not interposed for any improper purpose, neither unreasonable nor unduly burdensome –> If violated sanctions can be imposed
**Do not use Rule 11 for discovery sanctions (only for pleadings)
Types of Discovery Sanctions
Rule 37(a)(1) an order to compel production
Rule 37 (a)(3) Fail to do something in 26(a) then they can move to compel
Rule 37 (b)(2) Possible other Sanctions;
o Striking pleadings
o Dismiss the action or proceeding in whole
o Rendering default judgment
o Treating as contempt of court the failure to obey any order except order to submit physical/mental examination. (jail)
When is Default Judgment OK under Rule 37?
Courts review/weigh the following factors:
(1) Willfulness or bad faith
o Shown by repeated defiance of court orders
(2) History of noncompliance
o Shown by deficient responses, lack of diligence, pending action and failure to respond to court orders
(3) Effectiveness of lesser sanctions
o can include: “order compelling discovery, holding a party in contempt, and imposing a fine.” partial compliance is not
sufficient
(4) Prior warnings of sanctions to noncompliant party
o Written warnings
(5) Client’s complicity
o Did the client responded in interrogatories, did they sign them, did they provide all documents and record *not always in consideration.
(6) Prejudice to moving party
o Delay, Duration of efforts, hindering ability to litigation.
For Failure to persevere Electronically stored information….
Rule 37 (e) Failure to persevere Electronically stored information
Parties are obligated to preserve evidence relevant to pending or reasonably foreseeable.
Spoliation: destruction or significant alteration of evidence, or failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. Judge has discretion in sanctioning for spoliation. Elements to establish….
1. duty to preserve;
2. culpable state of mind; and
3. was relevant to party’s claim or defense.
Litigation hold:
1. Identify all potentially relevant info and place it on hold
2. Identify client’s documentation retention policy
3. Speak with client’s IT personally about backup policy
4. Speak with key players in litigation
5. remind client periodically to preserve
Default
Rule 55- Default Judgment
(b)(1) when it is a straight forward $$ amount
(b)(2) if not obvious the court decides
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
(c) setting aside a default got good cause (or under Rule 60(b))
Rule 41(a)(1)(A) Allows plaintiff to voluntary dismiss case at any time before defendant answers or move for summary judgment.
Rule 41(b) Case may be involuntarily dismissed (defendant can move) if the plaintiff fails to prosecute (e.g. ignoring court scheduling orders,…etc).
