Civ pro rule statements Flashcards
Scope of discovery
Discovery is generally permitted with regard to any non privileged material relevant to any party’s claim or defense in the action
Discovery and admissibility
Information within the scope of discovery need not be admissible in evidence to be discoverable
Test for whether information is discoverable
The test is whether the information sought is relevant to any party’s claim or defense
Limits on discovering work product in general
In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative
When can work product be discovered
Work product may be subject to discovery, however, if the party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means
Discovery of experts not testifying at trial
If an expert is retained by another party in anticipation of litigation or to prepare for trial but is not expected to be called as a witness, then discovery is permitted only on a showing of exceptional circumstances
Discovering ESI
A party may request the other party to produce and permit the inspection of any discoverable documents or electronically stored information
Spoliation of evidence
Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence required for discovery
Duty to preserve evidence
When litigation is reasonably anticipated, even if it has not yet been commenced, potential litigants in possession of potentially relevant evidence have a duty to preserve such evidence
What happens once the duty to preserve is triggered
Once a duty to preserve evidence is triggered, the party in possession of the evidence must take reasonable measures to preserve it
Routine operations that may destroy evidence
If a party has a policy in place that results in routine operations that may destroy evidence, that party must affirmatively act to prevent the destruction or alteration of such evidence, even if the destruction would typically occur in the regular course of business
Sanctions for failing to preserve ESI
A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation
Sanctions for spoliation
Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery
Determining sanctions for spoliation
In determining sanctions for spoliation, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence
Costly retrieval of information
When retrieval of information is possible, even if typically considered inaccessible because of cost, a court may order it and assign the costs to the party who destroyed the evidence. In those situations, no further sanctions may be imposed
What if a party failed to preserve ESI and they can’t restore or replace it?
If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order alternate sanctions against the wrongful party, limited to the court’s discretion of those necessary to cure any prejudice to the other party
Available sanctions for failing to preserve information
If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s usage in litigation, the available sanctions include a presumption that the destroyed information was unfavorable to the sanctioned party, a jury instruction hat it may or must presume the information was unfavorable, or entry of a default judgment against the party
Removal in general
Generally, the defendant in any civil action filed in state court has the right to remove it to the district court for the district in which the state court action was filed, as long as the civil action is within the subject matter JDX of a district court
When can fed courts exercise DJ
Federal courts may exercise diversity JDX over actions when 1. the opposing parties to an action are citizens of different states and 2. the amount in controversy exceeds $75,000
Proving the amount in controversy for diversity JDX cases
Generally, a plaintiff’s good faith assertion in the complaint that the action satisfies the amount in controversy requirement is sufficient, unless it appears to a legal certainty that the plaintiff cannot recover the amount alleged
Removal and diversity JDX
If removal is sought solely based on diversity jurisdiction, the claim may be removed only if no defendant is a citizen of the state in which the action is field
Transfering a case to a different venue
For the convenience of the parties and in the interests of justice, a district court in which venue is proper may transfer any civil action to any other district or division where it might have been brought
Proper venue
Venue is proper in a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; a substantial part of the events or omissions the claim is based on occurred; or a substantial part of the property that is subject of the action is located
Transfer based on forum selection clauses
When transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect.
Forum selection clauses that specify a federal forum
If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching.
SCOTUS on forum selection clauses
The supreme court has held that a forum selection clause should be given controlling weight in all but the most exceptional cases
Choice of law if original venue was proper
Generally, if the venue of an action is transferred when the original venue is proper, then the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law
Choice of law when venue transferred because of forum selection clause
When venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including choice of law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue
Claim preclusion
The doctrine of claim preclusion provides that a final judgment on the merits of an action precludes the parties from relitigating an identical claim in a subsequent action
Issue preclusion rule statement
Issue preclusion precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim
Issue preclusion and parties
Issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded was a party to the original action
Elements for issue preclusion to apply
Elements necessary for issue preclusion to apply are 1. that the issue sought to be precluded is the same as that involved in the prior action; 2. the issue must have been actually litigated in the prior action; 3. the issue must have been determined by a valid and binding judgment; and 4. the determination of the issue must have been essential to the prior judgment
12b motions
A defendant may file a motion under the FRCP 12(b) to raise several different defenses, including failure to state a claim on which relief can be granted and insufficient service of process
When must 12b defenses be raised
These defenses must be raised in the first pre-answer motion (or if none, in the answer), or else they are generally waived
Omnibus motion rule
Under the omnibus motion rule, when a party makes a pre-answer motion raising one of these defenses but omitting the other, 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. The party is deemed to have waived the excluded defenses
Amending a motion to dismiss to raise an omitted ground
Although not specifically provided for in the FRCP, courts have generally allowed a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion
Cross claims against defendants
The rules provide that an answer may state as a cross claim any claim against a co-defendant, so long as the cross claim arises out of the same event that is the subject of the original claim
Federal question JDX
Federal district courts have original jurisdiction over all civil actions arising under the constitution, laws, or treaties of the United States
Diversity jurisdiction
Federal district courts have jurisdiction over actions when opposing parties are citizens of different states and the amount in controversy exceeds $75,000.
Complete diversity
For a court to have diversity jurisdiction, there must be complete diversity, meaning that no plaintiff can be a citizen of the same state as any defendant.
Diversity for cross claims
For purposes of a cross claim between defendants, the defendants are treated as opposing parties and must therefore be diverse.
When a court is sitting in diversity JDX
Supplemental JDX
A court may exercise supplemental jurisdiction over additional claims which the court would not independently have federal question or diversity jurisdiction if they arise out of a common nucleus of operative fact.
Cross claims and supplemental JDX
A cross claim may be asserted by a defendant against another defendant 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 over another claim in the action
Same goes with plaintiff vs. plaintiff actions
Diversity in a class action
Diversity in a class action brought pursuant to Rule 23 will generally be determined by the citizenship of the named members of the class bringing the lawsuit
Diversity in class actions with 5 million at issue
For certain class actions in which the amount at issue totals more than 5 million, diversity will be met if any member of the plaintiff class is diverse with any defendant.
Citizenship of a corporation
A corporation is deemed to be a citizen of every state in which it has been incorporated and of the state where it has its PPOB
Principal place of business
A corporation’s principal place of business is generally its corporate headquarters
Citizenship of an individual
An individual is a domicilary of the state in which he is present an dintends to reside for an indefinite period
Assertion of amount in controversy
A plaintiff’s good faith assertion in the complaint that the action satisfies the amount in controversy requirement is sufficient, unless it appears to be a legal certainty that the plaintiff cannot recover the amount
Determining applicable law in district court
When an action is commenced in a US district court, the court must determine the substantive law and rules of procedure that will govern the action
What law to apply in diversity action
In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located, if there is no federal law on point. With regard to procedure in a diversity action, if a procedural issue is addressed by a valid federal law, then the federal law will be applied, even if a state rule or statute conflicts with that.
Class actions when state law bars it
Class actions can be maintained in federal court, despite a state law barring class actions to enforce statutory damages claims, if the action is authorized by rule 23
Rule 23 requirements for class actions
- the class must be so numerous that joinder of all the members is impracticable (numerousity)
- there must be questions of law or fact that are common to the class (commonality)
- the claims or defenses of the representattives must be typical of the class (typicality)
- the representatives must fairly and adequately protect the interests of the class (adequacy)
Domicile of decedent’s estate
A legal representative of a decedent’s estate will be deemed a citizen of the same state as the decedent – not the state where the legal representative is domiciled.
Raising the defense of lack of SMJ
The defense of lack of subject matter jurisdiction may be raised at any time throughout litigation and even on appeal, as it is not waivable
What does rule 11 provide
Rule 11 establishes the standards that attorneys and individual parties must meet when filing pleadings, motions, or other papers, and provides sanctions for violations of the rule
Rule 11(a)
Under rule 11(a), every pleading, written motion, and other paper filed with the court must be signed by at least one attorney of record, or by the party personally if unrepresented.
Rule 11(b)
Under rule 11(b), by presenting to the court a pleading, written motoin, or other paper, the signing attorney or unrepresented party certifies that to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances (i) the paper is not being presented for an improper purpose; (ii) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying or reversing exsting law or establishing new law; (iii) the factual contentions have evidentiary support or likely will have evidentiary support; and (iv) the denials of factual contentions are warranted on the evidence
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rule 11(b) broken down into buzzwords
The party presenting the document to the court certifies that
1. no improper purpose
2. Claims defenses, contentions warranted by existing law or nonfrivolous argument to extend/change law
3. factual contentions have evidentiary support, or, if so identified will likely have support after discovery
4. Denials of contentions warranted on the evidence or if so sspecified, reasonably based on belief or lack of information
Rule 5 on serving motion for sanctions
The motion for sanctions must first be served on the opposing party under Rule 5
Motion for sanctions (what to file it with and what it must contain)
A motion for sanctions must be made separately from any other motion and must describe the specific conduct alleged to violate Rule 11
21 day safe harbor period
Once the motion for sanctions is served on the opposing party, they have 21 days to withdraw or correct the challenged pleading
What happens once the 21 day safe harbor period passes and no correction is made
If the 21 day safe harbor period passes, and the opposing party fails to correct the pleading, the party seeking sanctions may file the motion with the court
imposing sanctions for violations of rule 11
Under certain circumstances, after notice and a reasonable opportunity to respond, the court may, in its discretion, impose sanctions on attorneys, law firms, and parties for violations of Rule 11
What are sanctions for rule 11 limited by
These sanctions are limited to what will deter the misconduct in the future
What can sanctions for rule 11 include
Sanctions may include nonmonetary directives or an order to pay a penalty into court.
Can rule 11 sanctions pay for attorneys fees?
If sanctions are imposed on motion and warranted for effective deterrence, an order directing payment to the movant, for reasonable attorney’s fees and other expenses directly resulting from the violation may be appropriate
Holding a law firm jointly liable for violation committed by partner, associate, or employee
Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
Can a court impose a monetary sanction against party for violating rule 11 requirements
Generally, the court is not permitted to impose a monetary sanction against a represented party for violating the requirement that legal contentions be warranted by existing law or a nonfrivolous argument, although there is some authority for imposing such sanctions on a represneted party who knew, or should have known, the claim they asked their lawyer to pursue was legally and factually baseless
Intervention as of right
Under the federal rules, a nonparty has the right to intervene in an action when, upon timely motion (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties.
burden of proving intervention as of right is warranted
The burden of proving an intervention as of right is warranted is on the party seeking to intervene
TRO
A TRO preserves the status quo of the parties until there has been an opportunity to hold a full hearing on whether to grant a preliminary injunction
duration of TRO
A TRO has immediate effect and lasts no longer than 14 days unless good cause exists
When may a TRO be issued iwthout notice to the adverse party
A TRO can be issued without notice to the adverse party if the moving party can show
1. that immediate and irreparable injury iwll result prior to a hearing on the adverse party’s arguments
2. the efforts made at giving notice and why it should not be required
Bond requirement for TRO
A party seeking a TRO usually must give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully restrained
preliminary injunction
A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue
what a party seeking a PI must establish
A party seeking a PI must establish
1. the party is likely to succeed on the merits
2. the party is likely to suffer irreparable harm in the absence of relief
3. the balance of equities is in the party’s favor
4. the injunction is in the public’s best interests
Security requirement for a PI
Typically, a party seeking a PI must provide security like it would for a TRO
General requirement that affirmative defense be in answer
Generally, a defendant’s answer must state any avoidance or affirmative defense the defendant has, or that defense is deemed waived
Pleadings amended by leave of court
The federal rules provide that pleadings can and should be amended by leave of court when justice so requires. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party
When should a MSJ be granted
A motion for summary judgment should be granted if the pleadings, discovery, and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law
How should court rule on MSJ
In ruling on a motion for summary judgment, the court must construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of the nonmoving party
When a cause of action is created by fed law
Generally, if a cause of action is expressly created by federal law, and federal law provides the underlying right, then federal Q jurisdiction will exist
How to tell if a claim is part of the same case or controversy
for supplemental JDX
In judging whether claims are related, the test is whether they arise out of a common nucleus of operative fact, such that all claims should be tried together in a single judicial proceeding
discretion to decline supplemental JDX
A district court has discretion to decline to exercise supplemental JDX over a claim that would otherwise qualify for supplemental JDX in the following circumstances
1. the supplemental claim raises a novel or complex issue of state law
2. the supplemental claim substantially predominates over the claims within original federal JDX
3. all of the claims within the court’s original JDX have been dismissed; or
4. exceptional circumstances
Determining whether a rule is valid under the rules enabling act
If there is a valid federal rule of procedure on point, then the court must determine whether the rule is valid under the rules enabling act. Specifically, the court must ask whether the rule abridges, enlarges, or modifies any substantive right.
Complaint requirements under FRCP
Under the FRCP, a complaint (or any pleading in which a claim is made) must include a short and plain statement of the claim establishing entitlement to relief.
Failure to include defense of insufficient service of process in pre answer motion
Under Rule 12(h), if a party makes a pre answer motion, the motion must raise the defense of insufficient service of process in the pre answer motion, or the defense is waived.
Allowing parties to amend MTDs
Generally, courst allow a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion. This is in line with the FRCP’s policy with regard to amendments, and there would be no undue prejudice to the opposing party
Service under FRCP
personal service/leaving it with someone
FRCP 4 allows service by delivering a summons and complaint to an individual personally, or by leaving a copy at the individual’s dwelling with someone of suitable age or discretion
Joinder rule
Under FRCP 20, persons may join in one action as plaintiffs if (i) they assert any right to relief jointly, severally, or in the alternative arising out of the same transaction or occurrence, and (ii) there will be any question of law or fact common to the plaintiffs
Counterclaim
A counterclaim is a claim for relief made against an opposing party after an original claim has been made.
What must the defendant include in her answer
re counterclaims
A defendant must incude in her answer to a complaint any claim that the defendant has against the plaintiff that arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim.
Failing to assert a compulsory counterclaim
A party who fails to assert a compulsory counterclaim wavies the right to sue on the claim and is generally precluded from ever suing on the claim in federal court
issue preclusion , generally
the doctrine of issue preclusion (aka collateral esoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined in an earlier adjudication.
Requirements for issue preclusion
A party asserting issue preclusion must establish (i) the issue is identical to the same issue in a prior action, and relevant facts and law are identical; (ii) the issue was actually litigated in the prior action; (iii) the issue was determined by a valid and binding final judgment; and (iv) the determination of the issue must have been essential to the prior judgment. Also, the party to be precluded must have been a party to the original action
mutuality of parties for claim preclusion
unlike claim preclusion, issue preclusion does not require strict mutuality of parties; it requires only that the party against whom the issue is to be precluded was a party to the original action.
When will a court not allow a party to use offensive issue preclusion
Trial courts have broad discretion to determine whether offensive collateral estoppel should be allowed. If a plaintiff could have easily joined in an earlier action, or if offensive estoppel is unfair to a defendant, the judge should not allow it.
Preclusion and choice of law
The preclusive effect of federal judgments is typically determined by federal law. However, federal common law requires that the preclusive effect of a judgment by a federal court sitting in diversity must be govered by the law of the state where the federal court is located.
SEMTEK
General rule on service for corps outside of US
FRCP allows service of process to be made on a corporation outside the US using any methods available for service of an individual outside the US, except personal delivery.
Methods of service for people/corps outside foreign country
These methods include service in any manner, internationally agreed on, which is reasonably calculated to give notice. If no agreement exists, service may be effected by any method ordered by the court that is not prohibited by law of the foreign country
DPC requirements for service
To meet the constitution’s due process requirements, a litigant must be given reasonable notice of the action, under all circumstances, so as to apprise him of the pendency of the action and allow an opportunity to object
