civ pro rules Flashcards
Personal jurisdiction- concept and traditional ways to satisfy it
PJ exists when the the forum has power over a particular defendant.
Traditional bases of jurisdiction:
1) D Domiciled in forum state
2) D registered to do business in the state and has appointed an agent for service of process
3) D consents OR
4) D is present* in forum (but not b/c of fraud/force)
Factors as part of minimum contacts analysis if no traditional basis of PJ*
contacts
relatedness
fairness
do frequent purchases and sales in a jurisdiction provide general jurisdiction?
unsettled but it seems you need some physical presence. 2011 Goodyear case stated regularly selling in a state not enough
essentially at home = place of business, person’s domicile, state of incorporation
-poss regional headquarters or major prod. facilities but unsure
examples of personal availment
- contracts- esp if provide the forum state’s law governs or acknowledge that things will regularly be sent to the forum state
- intentional targeting- ex: putting an item in stream of commerce + ev of intent for it to go to forum (modifying the product to comply w/ law, office in forum)
- poss. knowledge and hope it will reach the state (discuss other contacts, fairness, etc)
subject matter jurisdiction
subject matter jurisdiction
whether the court can decide the issue.
State court has unlimited jurisdiction.
In federal court, a case must have:
1) diversity jurisdiction
2) federal question jurisdiction
how do you determine citizenship of different types of parties?
- individual: place of domicile.
- *domicile= presence + intent to remain (paying in-state tuition, registering to vote)
- co: principal place of business, where incorporated
- minors, decedents, incompetents: look to THEIR citizenship not the representative’s
- partnership, LLC: citizenship of the members
injunctions/ joint liability: determining whether amount in controversy met
injunction- decrease in value of property/ right or cost of D’s compliance with an injunction
P has claim based on joint liability- look to total value of claim (courts see it as 1 claim)
adding claims- counterclaims
court must have subject matter jurisdiction.
check for DJ or FQJ first but the court will have supplemental jurisdiction over counterclaims and cross claims as long as they arise out of same t/o
adding claims- supplemental jurisdiction in federal question
if P brings a federal question claim, and joins a state law claim, must arise out of same nucleus of operative fact and claims usually would be tried together.
*court has discretion to allow the claim
removing from state to federal court*
Can remove any case that could have originally been brought in federal court (fed court must have SMJ and PJ over D).
D files a notice of removal stating the grounds for removal in fed court. D must also file a copy in state court and serves it on all parties to the state court case.
May remove to the fed court encompassing the territory of the state court (even if venue improper in that court). Only D may remove.
objecting to venue*
- transfer
- forum non conveniens
if proper- may properly transfer to any district where the action might have been brought, or to which all parties have consented.
- test: convenience to the parties, interest of justice.
factors: public & private
i) public = which district should be burdened w/ jury service, keeping local controversy local, what law applies
ii) private= convenience to witnesses, where ev is.
if improper- transfer if in interest of justice, or dismiss (requires extraordinary circumstances)
MUST STATE IN ANSWER OR 12b6 or waived!!
FNC
- dismiss or stay an action if the court thinks, in the interest of justice, it should be heard in another foreign judicial system or federal district where it originally could be brought.
- same public private factors as venue, but stronger showing
Must have chance of adequate remedy
which district does case belong in?–fed ct. venue*
i) if all D’s residents of forum state, any county where any D resides
ii) where a substantial part of the claim arose, or where substantial part of property at issue is
iii) if no district in the US meets i or ii, then wherever there’s pers jurisdiction over any D
methods of serving process*
Methods of serving
1) personal service- anywhere
2) substituted service- at D’s usual abode to someone of suitable age and discretion who lives there
3) D’s agent- if taking process in scope of agency
4) methods permitted by state law and reasonably calculated to give notice
what law should the federal court apply?*
-Erie doctrine: federal court in diversity of citizenship case must apply the substantive law of the state in which it sits & fed procedural law
fed law on point? (i.e. does it address the issue)
yes- fed law applies
no- determine if procedural or substantive
(outcome determinative, avoid forum shopping by making fed ct more appealing, balance of interests of fed and state systems in having their rule apply)
how is an action commenced?
by filing the complaint
D’s response to the complaint and deadlines*
To avoid default judgment–
- 12(b) response within 21 days of service
(i) lack of personal jurisdiction
(ii) lack of subj matter jurisdiction
(iii) lack of venue
(iv) insufficient process
(v) insufficient service
(vi) failure to state a claim
(vii) failure to join a necessary party - answer (21 days after served, or 14 after 12b denied)
(i) admit P’s allegations
(ii) deny
(iii) say you lack sufficient knowledge or information - *responses that do not clearly say “deny” are treated as admissions**
what things are waived if not objected to in 1st 12b motion or answer?*
personal jurisdiction
venue
improper service of process
improper process
SMJ is never waived, can raise on appeal
D’s claims and defenses against P
- raise affirmative defenses in answer
- plead counterclaims in answer (SOL, SOF)
- compulsory must raise in this suit
compulsory v. permissive counterclaims*
compulsory: arises out of same transaction or occurrence as P’s claim
permissive: counterclaim not arising out of same transaction or occurrence
counterclaims need SMJ- fed Q, diversity, or supp
- compulsory will have b/c same T/O = supp jur*
- permissive- need diversity, fed Q, or supp jur
- even if P and D are of same state, or less than $75k, it’s ok b/c it’s D asserting the claim
cross claim
a claim against a coparty (D1 v. D2)
never mandatory always permissive
is a court required to exercise supplemental jurisdiction over a claim?*
no the federal court has discretion. common grounds for refusal are:
- federal claim dismissed early ***
- state law claim complex
- state law issues would predominate
Rule 11*
docs that must comply with Rule 11
pleadings = complaint, 12b, answer, motion to strike, motion for more definite statement
attorney must sign all pleadings certifying, to the best of his/her knowledge and belief, after reas. inquiry:
- not for improper purpose
- legal contentions are warranted by law
- factual contentions and denials have evidentiary support, or likely to after further investigation
must sign at submission, and each time presented is a new certification
improper pleadings- raising an opponent’s rule 11 violation*
serve a motion on the other party
other party has 21 days to correct the violation
if party does not, sanctions available
court may do so sua sponte, no 21 day notice!
correcting an error in a pleading or adding defendants or claims– amendment and relation back doctrine*
-right to amend once:
P- 21 days of D’s first 12b response
D- 21 days of serving an answer
-beyond that time, or after the one time used:
court may grant leave to amend if justice requires
other party may give written consent
if SOL has run- to add a D b/c wrong D named:
a) same transaction or occurrence
b) party knew of the case within 120 days of filing
c) party knew that but for mistake he should have been named
a, b, and c met- relates back to date of original pleading and SOL doesn’t bar
ex: service on right agent, but P didn’t know co’s name
to add a claim
-must be from same conduct, transaction or occurrence as original pleading to relate back
waiver of service of process*
P must serve written request to waive + complaint
D must send back w/in 30 days
if he waives formal service, gets 60 days to answer
D doesn’t have to waive, but he will be liable for cost of service unless he has good cause for not waiving
discovery- initial disclosures to other side*
- 14 days of 26f conference is deadline. BOTH parties must disclose:
-docs, electronic info in possession, custody or control that party will use to support claims/def.
-list of persons likely to have discoverable info that the opposing party may use to support claim/def.
-insurance policies that may cover the judgment
discovery- documents to send to parties
deposition interrogatories (rogs, remember prerogative) request to produce examination (e for enemy) request for admission
discovery- documents that can send to non parties
deposition + subpoena
request to produce + subpoena
interrogatories
must respond with answer/objection within 30 days
examination
court order: must show good cause AND that the party’s health or condition is in controversy (personal injury case)
if you respond to discovery and things change
must timely supplement if you learn information was incomplete or incorrect
privileges
work product privilege- material prepared in anticipation of litigation (language saying “fearing the suit”) is protected from discovery
**prepared by a party or rep of a party
attorney/client and other evidentiary privilege
inadvertent disclosure of privileged material
other party must return to the other side
if a party fails to respond, or doesn’t completely respond–enforcement rules
partial violation (incomplete)- move to compel, state good faith effort to obtain. *court's order will order party to answer unanswered questions
total violation/ fail to respond to order- sanctions
i) order the matters to be treated as admitted
ii) disallow disobedient party’s evidence to support claims or defenses
iii) strike pleadings, stay or dismiss the action
iv) default judgment
* staying, dismissing, default require bad faith
can hold in contempt if court order violated
joining parties- compulsory*
1) is the absent party necessary? 2) can he be joined? 3) how court can proceed if not
a necessary party is:
a) a person who, if they are not joined, is necessary for the court to provide complete relief to the parties, or
b) person whose interest may be harmed if not joined, or**
c) person who claims an interest that subjects a party to multiple obligations
2) personal and subject matter jurisdiction over absentee?
3) if a necessary party can’t be joined, court must either dismiss the case or proceed w/o him
a) alternative forum for P to sue in
b) prejudice to the absentee or the parties
c) whether prejudice can be avoided by shaping the relief
once the action is started, what are the ways to join a party?
1) permissive/compulsory joinder
2) impleader
3) interpleader
4) intervention
class action lawsuits*
demonstrate 4 factors
- numerosity- too many class members to join
- commonality- at least one common question of law or fact to all members
- typicality-rep’s claims/defenses typical of class members
- representative is adequate- fair & adequate rep
AND demonstrate it is 1 of 3 types
1) prejudice- necessary to avoid harm either to class members or party opposing class (common fund)
2) injunction sought because class was treated alike by the other party (commonly discrimination)
3) damages- common questions predominate over individual questions; class action is best way to adjudicate the dispute (mass tort, common carrier crash)
court determining if class action appropriate- certifying a class
- interest of individual control
- extent and nature of cases elsewhere
- desirability of having one case w/ all parties
- difficulties in management
if certifies: must appoint class counsel, and define class claims, issues, defenses
when is notice required at the outset in a class action? what does it need to say?*
only where common questions predominate and class action is best way to address (discretion in injunction, not where necessary to avoid prejudice)
class members can opt out
class members will be bound by judgment
class members can appear separately in the class action case thru counsel
when is notice required in class actions generally?
settlement or dismissal of class action
the court must approve both so the notice is to get the members’ feedback
addressing jurisdiction in a class action*
- federal question- right arising under fed law
- diversity of citizenship-look to rep’s citizenship vs. D’s citizenship, and amt of rep’s claim
statutory: 100 class members + $5 mil aggregated claims; any class member diverse from D even if the rep is not
ways a defendant can seek to prevent plaintiff from getting to trial
1) 12b failure to state a claim- initial response stage. court looks only to the facts plead and asks if P would get judgment if true
2) judgment on the pleadings- same standard as above
3) motion for summary judgment (if as to all claims)
30 days after close of discovery
4) involuntary dismissal - against P for not complying with fed rules
in MSJ what does court consider?
evidence. affidavits or declarations.
generally NOT pleadings unless:
-under oath
-D didn’t deny P’s allegation
pretrial conference
final one determines issues to be tried and evidence to be presented. recorded in pretrial conference order. can’t bring in if not in this doc
choosing a jury
- no limit on strikes for cause (bias of juror, prejudice, relationship to a party)
- peremptory- only 3.
- *must be race and gender neutral b/c state action
trying to keep case from jury at trial
JMOL- takes the case away from the jury. must wait until the other side is heard.
post-trial motions*
1) RJMOL
2) new trial
3) appeals- 30 days of final judgment
