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Civ Procedure Flashcards

1
Q

Subject-Matter Jurisdiction

A

Power of the court over a particular case

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2
Q

When can a federal court hear a case involving federal law and state law?

A

(1) The federal question must actually be in dispute;
(2) The federal question demands the federal judges’ expertise and ought to be resolved uniformly; and
(3) The federal question is not so commonly present in state law actions to trample their jurisdiction.

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3
Q

When is Diversity Jurisdiction measured?

A

At the time the suit is filed

BUT amended complaints that add/dismiss parties can affect diversity

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4
Q

Diversity Jurisdiction - Class Action Exception

A

More than 100 persons and greater than $5 million in controversy

Minimal diversity is needed - a single P is diverse from a single D

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5
Q

Aggregation of Claims

A

If P brings multiple claims against a single D, they will be added together to see if the amount in controversy is reached.

The claims can be totally unrelated. There’s no same transaction or occurrence requirement.

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6
Q

Supplemental Jurisdiction - Under which rules P brings D would ruin supplemental jurisdiction?

A

(1) Rule 14 - Third-Party Claim
(2) Rule 19 - Required Joinder
(3) Rule 20 - Permissive Joinder
(4) Rule 24 - Intervention

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7
Q

Supplemental Jurisdiction - Reasons why a court may still decline

A

(1) Involves a novel or complex state law
(2) Claim “substantially dominates” over the federal question or diversity jx claim
(3) Anchor claim is dismissed
(4) Other compelling reasons

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8
Q

Supplemental jurisdiction

A

The claim lacking federal question or diversity jx MUST arise from the same transaction/occurrence as the claim under FQ or diversity jx.

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9
Q

Removal

A

D can remove from state to federal if the case could have originally been filed in federal court EXCEPT IF

(1) Federal jx = diversity jx
(2) D is a citizen of the state where P filed suit

Multiple Ds –> Require all Ds to agree to removal

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10
Q

Removal - Timing

A

Must be within 30 days of when the ground becomes apparent, which is usually when D is served with P’s complaint.

If P amends their complaint, then it will be 30 days from when D is served with the amended complaint.

Based on when the last D was served (but only gives that later-served D the right to remove - other parties can agree and join in removal though)

If removal is based on diversity - D must remove within 1 year of filing unless P attempted to thwart removal

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11
Q

Personal Jurisdiction - Analysis

A

(1) Could a state court in that state assert PJ over that party? If no, then no PJ.

(2) The state law for PJ must be constitutional under the 14th Amendment’s Due Process Clause:
- Residency
- Consent (Appearance, K, Appointment)
- Service
- Minimum Contacts
- At-Home General JX

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12
Q

Minimum Contacts

A

(1) D has established a minimum contact with the state - D causes harm in the state, does business in the state, or has a real property interest in the state
(2) Claim against D arises from that contact; AND
(3) PJ won’t offend traditional notions of fair play and substantial justice.

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13
Q

“At Home” General JX

A

Business must be so significant that the company, though not headquartered or incorporated in that state, is essentially at home there

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14
Q

Venue

A

Region within a particular state in which the suit can be brought

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15
Q

Venue is proper in any district where:

A

a) any defendant resides (if all Ds are residents of the forum state)
b) a substantial portion of the claim occurred
c) a substantial portion of the property is located; OR
d) if none of the above, then where any D is subject to the court’s PJ. (“gap filler”)

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16
Q

Transferring Venue - Reasons

A

Convenience
Agreement
Interests of Justice

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17
Q

Transferring Venue - Convenience

A

The case could have been filed there in the first place AND transfer is necessary for the convenience of the parties and/or witnesses

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18
Q

Transferring Venue - Agreement

A

If all parties join request to transfer

Court does not need to consider personal jurisdiction or venue, since the agreement = consent.

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19
Q

Transferring Venue - Interest of Justice

A

If the case was filed in an improper venue, the court can dismiss the case OR in the interest of justice, transfer the case where it could have been filed originally.

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20
Q

What must be in the complaint

A

(1) Grounds for subject-matter jurisdiction
(2) Statement of facts that are sufficient to show that P is entitled to relief
(3) Demand for judgment and the relief sought

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21
Q

Amending the Complaint/Answer (Matter of Right)

A

Can amend ONCE as a MATTER OF RIGHT

Can amend complaint/answer within 21 days of serving the complaint/answer
AND
Can amend complaint within 21 days after service of the answer/motion to dismiss

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22
Q

Amending the Complaint - Permission

A

Party can amend the complaint with permission

1) Of the opposing parties
(2) of the court, who will consider reason for delay and prejudice (but usually granted

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23
Q

Statutes of Limitations & Amendments

A

When adding new claims –> amendment is considered filed on the date of the original claim if the new claim arises from the same transaction or occurrence as the pre-existing claim [relation back rule]

When adding new parties –> Will relate back to the original filing date as long as:

(1) same transaction and occurrence;
(2) new party received notice of the original action within 90 days of filing; AND
(3) new party knew (or should have known) that the action would have been brought against it but for a mistake in the party’s identity

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24
Q

Service of Process - Timing

A

Must be served within 90 days of filing the complaint

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25
Service of Process - How can D be served?
(1) in the manner prescribed by the state court where the federal suit has been filed OR where D will be served. (2) As specified by Federal Rule Civ. Pro. Rule 4.
26
Service of Process - Natural Person
(1) Deliver to D himself via third-party (2) Leave it at D's usual abode with a person of suitable age and discretion residing there (3) serve D's registered agent; OR (4) Mail with letter requesting D waive in-person service (4a) If D declines, D becomes responsible for the cost of personal service.
27
Service of Process - D = Corporation, Partnership, or Association
Serve process on (1) an officer; (2) A managing agent or general agent; OR (3) Any other agent authorized by appointment or by law to receive service - -> If law requires service by mail, then it must be by hand AND mail.
28
What if D was not served?
Check if D had notice - Did P take reasonably calculated steps to inform D of the action against them? ONLY MAY (not necessarily) a constitutional issue if P took reasonably calculated steps.
29
Defenses that must be raised in the answer or else are deemed waived
(1) Lack of personal jurisdiction (2) Improper Venue (3) Insufficient Process (4) Insufficient Service of Process
30
Defenses that must be raised BEFORE TRIAL ENDS
(1) Failure to state a claim upon which relief can be granted (2) Failure to join a necessary party
31
Defense that can never be waived and can be brought up for the first time even on appeal
Lack of subject-matter jurisdiction
32
Motion to Strike
Court can (on own or on motion) order material stricken if complaint/answer contains redundant, immaterial, or scandalous stuff
33
Timing of Response to Complaint
If D was actually served with process --> 21 days to respond If D waived service of process --> 60 days to respond If D responds with either (1) motion for more definite statement; (2) motion to strike; (3) motion to dismiss instead of an answer --> D must file their answer within 14 days of the denial of any of those motions
34
Preliminary Injunction
Maintains the status quo pending the outcome of an action May be issued only (1) upon notice to the adverse party; AND (2) if the moving party gives security/bond (to reimburse non-movant for injury caused by the injunction if the moving party is not successful on the merits)
35
Preliminary Injunction - Test
4 Prong Test (1) Likelihood of P's success on the merits (2) Likely threat of irreparable harm to the movant (3) Harm alleged by movant outweighs any harm to the non-moving party (balancing test); AND (4) Injunction is in the public interest
36
Temporary Restraining Order
Emergency remedy used to maintain the status quo pending the outcome of a preliminary injunction application Movant must allege immediate AND irreparable harm - court will then analyze the same factors as a preliminary injunction (1) Likelihood of P's success on the merits (2) Likely threat of irreparable harm to the movant (3) Harm alleged by movant outweighs any harm to the non-moving party (balancing test); AND (4) Injunction is in the public interest
37
Ex Parte Temporary Restraining Order
Moving party must (1) provide specific facts in a sworn statement showing immediate and irreparable injury, loss, or damage will result before the adverse party can be heard; (2) movant attorney certifies in writing any efforts made to give notice and the reasons why it should not be required (3) Gives security in an amount that the court deems proper NOTE: US Government, officers and agencies are NOT required to give security.
38
Ex Parte Temporary Restraining Order - Duration
Automatically expires after 14 days if granted. UNLESS (1) court sets a short time-frame for automatic expiration; (2) court extends duration for good cause; OR (3) parties consent. Adverse party can move to dissolve/modify TRO with 2-days notice.
39
Multiple Claims - P vs. D
Between any single plaintiff and single defendant, P can bring as many claims against D, regardless of whether or not the claims are related to the original claim. But if P doesn't raise any of the claims related to the original claim in the suit, then P will likely be precluded from bringing the claim in a separate suit.
40
Cross-Claim
D1 Claim vs. D2 Claim (Claim filed against co-party) First cross-claim must arise from the same transaction/occurrence underlying one of P's claims. This will become the anchor claim. Once there's an anchor claim, then there can be any additional unrelated cross-claims. The co-defendant receiving the cross-claim can then counterclaim, and the counter-claim rules apply.
41
Impleader Claims
D brings a claim against someone not yet a party BUT D must allege that third party is responsible for some or all of liability. Right to implead if within 14 days of serving answer After that --> need permission from the court. After being impleaded, the third party can bring their own claims against others and implead others. Original P can also file a claim against the third party, IF it relates to one of P's original claims.
42
Permissive Joinder
Multiple Ps or Ds can can join/be sued in 1 suit AS LONG AS: (1) the joined parties claim relief/face liability that arises out of the same transaction or occurrence; AND (2) There will questions of law/fact common to the joined parties.
43
Mandatory Joinder
If the absent party is necessary and can be joined, then they must be joined. If the absent party is necessary and cannot be joined but are indispensable --> must dismiss the case. (1) Is the absent party necessary? If no, then no mandatory joinder. (2) Can the necessary party be joined? If yes, then the party should be joined. If court lacks personal jurisdiction over the missing party OR adding the party would destroy subject-matter jurisdiction through diversity jx, then proceed to next step. (3) If the parties cannot be joined, are they indispensable? If yes, then must be dismissed. Relevant factors: (a) Extent of prejudice to missing party; (b) Whether prejudice can be lessened by shaping relief in a certain way (c) If case is dismissed, whether P can find relief in another forum
44
Mandatory Joinder - Necessary Party
(1) Party has an interest that might impaired if left out; (2) Complete relief cannot be issued in the party's absence; OR (3) Current parties would be subject to inconsistent/duplicative liability
45
Class Action
One person can litigate on behalf of a class IF (1) a class can be formed; AND (2) the action brought is proper for resolution via class action
46
Class Action Requirements
(1) Numerosity - So many claimants that joinder is impractical (2) Commonality - Questions of law or fact common to class (3) Typicality - Claims are typical of class members ensuring the representative will have an incentive to litigate in ways to protect the class (4) Representativeness - Parties will fairly and adequately protect the interests of the class Court must have personal jurisdiction over every D and the named P.
47
A case is proper for class action resolution IF:
(1) Separate actions would create risk of inconsistent judgments or judgments that would impair nonparties from protecting interests (2) Opposing party has acted in ways generally applicable to the class (not likely to work if the seeking $$) (3) Courts finds that common question of law or fact predominate over individualized actions, and a class action is superior to other methods for fair/efficient result.
48
Class Action - Subject-Matter Jurisdiction - State Law Violation
When alleging a state law violation, the class can appear in federal court ONLY IF ALL Ds and representative Ps are completely diverse.
49
Interpleader Claims
When one party faces multiple/inconsistent liabilities from multiple parties, it will have the other parties sue each other. Ex. Sued by B if gives property to A & Sued by A if gives property to B. So they're stuck in between each other and will file an interpleader claim.
50
Intervention of Right
Intervention = non-party is interested but has not yet been joined Intervention as a Right = Non-party must be permitted to intervene upon timely application WHEN (1) Party claims an interest relating to the action's subject-matter; AND (2) W/o intervention, there's a risk they might not be able to protect that interest.
51
Permissive Intervention
Upon (1) timely application AND (2) court's discretion, non-party can intervene with a claim/defense that shares with the main action a common question of law or fact
52
Mandatory Initial Disclosure
Must be provided within 14 days after a Rule 26 conference: (1) Name/contact info of any witness that a party may use to support claim/defense (2) Copies/descriptions of documents, electronically stored information, and tangible objects that party may use to support its claim/defense (3) Computation of damages sought and supporting documents; AND (4) Copies of any insurance agreement that may require insurer to pay.
53
Expert Disclosure
At least 90 days BEFORE trial: if planning on relying on expert testimony --> Must disclose names/contact info of expert and their final report, which includes qualifications, opinion, and information relied upon by the expert
54
Pretrial Disclosure
At least 30 days BEFORE trial: Must provide: (1) List of witnesses they call to call; (2) Witnesses they may call if the need arises; (3) List of witnesses whose testimony will be given through deposition or transcript; (4) List of documents or physical evidence they expect to present
55
Work Product
Document or tangible object created by party or attorney in anticipation of litigation EXCEPTIONS: (1) A party can always obtain a statement it's made (2) If a party has substantial need and it cannot get it without substantial hardship
56
Discovery - Undue Burden
(1) Discovery is unreasonably cumulative or can be obtained from a less burdensome source or in a less burdensome way (2) Party has had ample opportunity to obtain information themselves (3) Burden/Expense of proposed discovery outweighs its benefits, considering nature of evidence, amount in controversy, and parties' resouces
57
Discovery - Non-testifying Expert
Undiscoverable unless party has extraordinary need or there's no other way to obtain the information
58
Discovery - Testifying Expert
Parties can discover the expert's report (mandatory disclosure) AND any communications relating to (1) compensation for expert's study or testimony; (2) Data provided by attorney to the expert; or (3) Any assumption asked the expert to make in the opinion
59
Interrogatories
Up to 25 Qs Can seek facts or contentions 30 days to respond - must be in writing and objections stated with specificity
60
Requests for Production - if documents are requested
The responding party must provide them as they are maintained in the usual course of business and label, but with electronically stored information (ESI), can provide copies
61
Requests for Mental or Physical Examinations
Available only upon court order. When ordered, the party must submit. Examiner prepares a report detailing the exam and it's available to any requesting party.
62
Depositions - # of people
Up to 10, but can get a court order for more
63
Depositions
Can be used at a hearing/trial as long as the opposing party had a reasonable opportunity to be present Deposition of Party or their designee --> Used for any purpose Deposition of non-party --> Used to impeach deponent OR if the non-party is unavailable, for any purpose
64
Subpoena duces tecum
Demand for documents
65
Subpoena ad testificum
Demand for testimony
66
Objects to Subpoenas
(discovery from nonparty) The person served can object as (1) outside the scope of discovery OR (2) if it requires the person travel > 100 miles from home/work
67
Motion to Compel
Made after movant has in good faith attempted to confer with the resisting party. If granted --> Movant gets fees/expenses for motion If denied --> Non-movant MAY get fees but only if the motion was not substantially justified
68
Possible Sanctions
If only sort of resisting --> Available after resisting parties continue to resist even after a motion to compel has been granted If no compliance at all --> Can jump to sanctions and seek all of the below except order of contempt. (1) Court order declaring facts established for requesting party (2) Court order prohibiting disobedient party from presenting certain claims/defenses (3) Stay or dismissal of entire action; (3) Order of contempt
69
Voluntary Dismissal - Default
Presumed without prejudice in the first dismissal Subsequent dismissals are presumed WITH prejudice.
70
Involuntary Dismissal
If P fails to prosecute her case OR refuses to comply with a court order or any of the FRCP, D can move to dismiss. The involuntary dismissal operates as an adjudication on the merits (with prejudice) UNLESS (1) the court order states otherwise or (2) its a dismissal for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 (required joinder)
71
Default Judgment
(1) P properly serves D, but D never responds (2) Clerk enters a default [entry of default] (3a) If the claim is for a "sum certain" + P requests the default judgment --> clerk must enter and assess damages and costs against D (3b) If clerk is unable to enter default judgment + P requests the default judgment --> the court will issue default judgment. BUT if D initially appeared but failed to appear later --> the court can only issue the default judgment if D is served with written notice of application for default 7 days before hearing The judge can hold hearings to calculate $$ damages or other matters.
72
Motion for Summary Judgment
No genuine dispute of material fact & Movant is entitled to judgment as a matter of law.
73
Trial By Jury
7th Amend right by jury in suits in common law when value > $20 Only for claims for which you're seeking damages
74
Demand for Jury by Trial
Any party can demand a jury by trial. (1) Must be demanded no later than 14 days after the last pleading directed to the jury-eligible issue is filed; AND (2) the party exercising the right must file and serve a written demand for the jury trial
75
Jury Verdicts
Default - unanimous Unless the parties stipulate otherwise.
76
Motion for Judgment as a Matter of Law
Can only be made during a jury trial. Court can enter it on its own or via motion. Granted IF: (1) Party against whom judgment is entered (Losing party) has been fully heard on the issues; AND (2) That party lacks sufficient evidence to prevail on issue necessary to claim or defense.
77
Renewed Motion for Judgment as a Matter of Law
Must be filed within 28 days of entry of judgment OR If the motion addresses a jury issue not decided by verdict --> Filed within 28 days of the jury discharge
78
Renewed Motion for Judgment as a Matter of Law - Options
Court can: (1) allow the verdict to stand; (2) Enter the opposite verdict; OR (3) Order a new trial (even if a motion for a new trial was not made)
79
Motion for New Trial
Must be filed within 28 days of the judgment entry
80
Motion for New Trial - Possible Grounds
(1) When the verdict was against the the great weight of evidence, taking into account the comparative volume and credibility of the evidence (2) Excessive damages - Jury returns a verdict that is "grossly excessive" or "shocks the conscience." Court can choose an appropriate amount in the alternative and let P choose between accepting that amount and doing a new trial. (3) Procedural Error or Misconduct ONLY IF: (a) error/misconduct likely affected the result of the trial; AND (b) Party objected to the error when they had the opportunity to do so (4) Newly discovered evidence - which couldn't have been found with reasonable diligence before the verdict and will likely change the results. Evidence cannot be just for impeachment.
81
Motion for Relief from Judgment
Moving party asks the court to undo the judgment or set it aside. Must be made within a reasonable time BUT the following grounds must be made within 1 year of the final judgment: (1) Mistake, inadvertence, or excusable neglect; (2) Newly discovered evidence; (3) Fraud, misrepresentation or misconduct by party Other grounds that just need to be made within a reasonable time: (1) Judgment is void - court lacked SMJ or PJ (2) Judgment has been satisfied (3) Any other reason that justifies relief
82
Appellate Jurisdiction - Appellate courts have jx over .. .
(1) Final judgment (2) Order pertaining to preliminary injunctive relief (3) Order pertaining to class certification (4) Order that's been certified by the district court (5) Collateral Order IF: (a) order pertains to matter unrelated to merits; (b) Order conclusively decides a particular issue; and (c) Delaying appeal until a final judgment has been issued would effectively deny appellate review of the issue
83
Appellate Jurisdiction - When will the district court certify an order for appeal?
(1) Order involves a controlling question of law (2) Issue of law is one on which there's a substantial difference of opinion; and (3) Immediate appeal will materially advance the ultimate resolution of the action
84
Appellate Jurisdiction - Standard of Review
Question of law --> DE NOVO (no deference to lower court) Question of fact --> Affirm unless clearly erroneous Inherently discretionary questions --> if trial court has discretion, then just check if there's been an abuse of the discretion standard
85
Appeal - Waiver
Appeal can be waived if the party fails to challenge it at the time lower court made it
86
Harmless Error Rule
Will affirm even if there's an error b/c error did not prejudice
87
Appellate Procedure
Must file notice of appeal within 30 days of the judgment or within 30 days of the order being appealed. EXCEPT for class certification orders, which must be appealed within 14 days.
88
Post-Trial Motions
(1) Renewed motion for judgment as a matter of law (2) Motion for a new trial (3) Motion for a relief from judgment
89
If post-trial motion has been filed AND it's denied . . .
A new 30-day period for appeal begins.
90
If post-trial motion has been filed AND it's granted . . .
The judgment is no longer final and the judgment can no longer be appealed unless the order can be certified or characterized as a collateral order.
91
Res Judicata
Claim preclusion - bars claimants from relitigating a case they already lost
92
Res Judicata - Requirements
(1) Between the same parties and those are in privity with them (2) Arising out of the same transaction or occurrence underlying the prior suit and (3) Was determined on the merits by a court with proper subject-matter and personal jurisdiction (4) Could also be described as a compulsory counterclaim
93
"On the Merits"
Involved an inquiry into the merits of P's claim Judgment is not on the merits if it's a dismissal for a lack of PJ, SMJ, or venue Dismissal with prejudice = On the Merits
94
Collateral Estoppel
Issue preclusion - bars re-litigation of issues even with different parties
95
Collateral Estoppel - Requirements
(1) Must have been litigated and determined in the prior suit (2) Issue must have been essential to the judgment (essential = if decided the opposite way would it have changed the result of the case) (3) Prior suit must have ended in a judgment on the merits (4) Party against whom preclusion is asserted must have had full and fair opportunity, as well as incentive, to litigate the issue in the first suit

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