Civil Procedure Flashcards
jurisdiction
the power of the court
a court must have proper jurisdiction over the subject matter and jurisdiction over the person in order for any judgment it issues to be binding upon the parties
subject matter jurisdiction
state courts have general jurisdiction
federal courts have limited jurisdiction
- each claim brought to federal court must have an independent basis for jurisdiction
when does a federal court have jurisdiction?
if the claim rises under federal law
is created by state law but depends on a substantial federal question
- this includes: constitution and treaties
diversity jurisdiction
complete diversity of citizenship
AND
over 75K in controversy
what does complete diversity mean??
no single plaintiff may be a citizen of the same state as any single defendant
how is citizenship determined?
by domicile
how is a corporations citizenship determined?
it is a citizen of its state of incorporation and a citizen of a state where its principal place of business is located.
how is a partnership citizenship determined?
a citizen of every state where its members are a citizen.
aggregation of claims in federal court to meet diversity
a claimant may aggregate claims against a SINGLE defendant but not against MULTIPLE defendants.
multiple claimants cannot aggregate claims to meet the 75K min.
supplemental jurisdiction
fed court has discretion to consider a pure state law if there is a common nucleus of operative facts between the state law claim and the federal claim.
if fed claim is based on diversity– ONLY claims involving diverse parties may be added provided they arise from a common nucleus of operative facts
- do not have to = $75K in controversy
if one claim is based on a federal question then the state law claim with non-diverse parties may be brought under supplemental jurisdiction
who can remove a case to federal court and how?
Defendants in state court can remove an action to the federal court that geographically embraces the state court if:
- the federal court would have jurisdiction
- all defendants consent
- notice of removal is filed within 30 days of the service of the complaint
when can a defendant remove the case to federal court?
basis is diversity of citizenship:
- no removal is allowed if any defendant is a citizen of the state where the action is pending
basis is federal question:
- this rule does not apply
basis is defendant’s defense is federal-law based defense:
- this rule does not apply
remand
when federal jurisdiction does not exist and the Plaintiff wants the claim back to state court
must be done within 30 days from the filing of the notice of removal
personal jurisdiction
exists if the court has:
in personam jurisdiction over the parties
in rem jurisdiction over property that is subject to the claim
quasi in rem jurisdiction over property that is attached to satisfy judgment
when must objections to personal jurisdiction be brought?
in the first responsive pleading or they will be waived
what is in personam jurisdiction?
exists when a person is located within the state by either domicile or service
if D is served while in the forum state, jurisdiction exists even if his present is temporary and even if his presence is unrelated to the claim
if presence is due to FRAUD, FORCE or PARTICIPATION IN ANOHER JUDICIAL PROCEEDING, service is not valid
if the D consents to jurisdiction
consent for service can be done by:
implied
- state has a substantial interest in regulating nonresidents in a particular in-state activity
express
waived
- if D fails to raise the defense of lack of opersonal jurisidction in an answer or first responsive pleading
- not waived if D appears in court to contest jurdicstion
Long-arm jurisdiction
specific jurisdiction over the defendant who does specific activities enumerated in the statute
applies when:
- D transacts business within the state
- D enters contracts within the state
- D committed the act in the state
in rem jurisdiction
based on the parties interest in a particular piece of property located within the state
quasi in rem jurisdiction
actions involving attachment of real or personal property as a part of the relief
service of process
when the D is served with a summons and a copy of the complaint
not required for an action to start
must occur within 120 days of the filing of the complaint
what are the proper methods of service?
abode service waiver agent service state methods personal service
if D argues that service of process was insufficient, they must….
raise the defense in its first responsive pleading or those defenses will be waived
venue
limit on a plaintiff’s choice of where to file
venue is proper where…
any defendant resides, if all D reside in that state
federal district:
-a substantial part of the claim arose
OR
-where the property is located
where the defendant can be found if there is no other district in which the action may otherwise be brought
if the venue is improper what can D do?
file a motion to dismiss based on improper venue in the first responsive pleading
motion for transfer
if D prefers a different venue then the remedy is to file a motion to transfer
BASED ON FORUM NON CONVENIENS
FORUM NON CONVENIENS
for the convenience of the parties and witnesses and in the interest of justice
complaint requirements
must contain sufficient facts to place the adversary on notice of plausible claims
complaint
claim for relief must include….
short and plain statement of the jurisdiction
statement of ca claim that would entitle the claimant to relief
demand for relief
after the complaint has been filed and served what must the D do?
file a responsive motion or answer
has 21 days from the date of service of the complaint to file
what are the Rule 12(b) defenses?
lack of personal jurisdiction
insufficient service of process or insufficient process
improper venue
failure to state a claim
failure to join an indispensable party
lack of subject matter jurisdiction
- can be raised at any time and can be raised by the court
When are Rule 12
(b) defenses to be used?
must be filed within the first responsive pleading
Answer
must deny or admit to every allegation in the complaint
must include any previously asserted 12(b) defenses and all affirmative defenses
Rule 8(c)(1) affirmative defenses
accord and satisfaction
arbitration and award
assumption of risk
contributory negligence
discharge in bankruptcy
duress
estoppel
failure of consideration
fraud
illegality
injury by fellow servant
laches
licenses
payment
release
res judiciata
SOF
statute of limitations
waiver
when can a plaintiff amend their complaint?
within 21 days of service upon the D
after 21 days: must file a leave to amend
if P wishes to add a new claim to the complaint when amending their complaint then….
it relates back to the date of a timely-filed complaint if the new claim derives from the same transaction or occurrence
if P wishes to add a new party to the complaint when amending their complaint then….
relation back applies only if the amendment derives from the same transaction and the new party acquired knowledge within 120 days of the earlier filed complaint.
joinder of parties
P may join parties to the same lawsuit if the claims involving those parties derive from the same transaction.
P must join indispensable parties if it would be prejudiced to any parties right to a fair trial
joinder of claims
P may join as many claims as they have against the D
do not have to have any connection
what are the 3 different ways a 3rd party can join a lawsuit and bring claims?
Impleader
interpleader
intervention
impleader
defendant may bring a 3rd party if that party may be liable to defendant for all or part of Defendants liability to P
interpleader
a suit pleaded between two parties to determine a matter of claim or right to property held by a third party.
intervention
a non-party moves to enter into a lawsuit
counterclaim
D can file against P
if it arises from the same occurrence then it must be brought in the same claim
either:
manadatory
OR
compulsory
mandatory counterclaim
failure to bring results in a waiver
permissive counterclaim
when it seeks to join claims that do not arise from the same occurrence
failure to bring does not result in a waiver
cross-claims
may be brought by any party against any co-party when the claim arises out of the same transaction as the original claim or counterclaim.
class actions
actions where the names plaintiff represents a class of commonly-situated absent plaintiffs.
class-actions
C
A
N
T
commonality
- common issues of fact or law
adequacy
- plaintiff must fairly represent the class
numbers
-at least 40
typicality
-the claims of the plaintiff are typical of the class
when is a court less likely to gran class certification?
if multiple state laws are involved and individual claims require separate investigation
discovery
includes:
mandatory & traditional
mandatory forms of discovery
required within 2 weeks of the initially discovery conference
duty to supplement mandatory disclosures or be subject to exclusion of that evidence at trial
mandatory disclosures are:
- supporting witnesses
- supporting documents
- damages computation
- relevant insurance coverage
what are the traditional mens of discovery…
depositions
interrogatories
request for admissions
production of documents
request for physical or mental examination
depositions
direct questioning of a party or witness under oath
interrogatories
written questions that must be answered by another party in writing under oath within 30 days
only served on parties and not witnesses
request for admission
any request that is admitted is deemed established for all purposes in the litigation
production of documents
request to a party to produce document or property for inspection and copying
request for physical or mental examination
only when a person’s condition is in controversy.
good cause is required
work product doctrine
any material that an attorney or someone at their discretion prepared for litigation and was not in the ordinary course of business
all other forms of work product are discoverable only with a showing of substantial need and undue hardship
jury trial
party has a constitutional right to a jury trial if its claim primarily seeks monetary damages
must file written demand within 14 days of service
jury selection
each party receives 3 peremptory challenges used to strike jurors
motion for summary judgment
filed within 30 days after the close of discovery
may be granted if there are no genuine issues of material fact and the movant is entitled tot judgment as a matter of law
movant must produce evidence to support each element of the cause of action
all inferences are drawn in favor of the non-movant
judgment as a matter of law
AKA directed verdict
made at the lose of the opponent’s case
made when there is insufficient evidentiary basis that a reasonable jury could find for the non-moving party
default judgment
entered against D when he failed to respond to the complaint in a timely manner
renewed motion for judgment as a matter of law
formerly called a judgment notwithstanding the verdict, the motion is made within 28 days of judgment
motion for a new trial
made within 28 days
granted in the court’s discretion if either:
-the errors at trial affected the parties’ trial rights
OR
-against the weight of the evidence
claim preclusion
claim can not be relitigated if the claim arises between the same parties or those in privity with them
it arises out of the same transaction
the court determined the claim on the merits
AND
had proper subject matter jurisdiction
collateral estoppel
AKA
Issue preclusion
an issue that cannot be relitigated
may only be used against someone who was not a party to the first action against one who was a party in the earlier suit
when is a judgment eligible for appeal?
when a final order entered by a lower court
when a party wanting to file an appeal they must…
file it notice of appeal within 30 days from the entry of the judgment
final judgment
one that disposes of all issues as to all parties
if a judgment only resolves some of the claims then an interlocutory appeal can be requested
motion for relief from a judgment
within 1 year of a judgment a party can file
requires: MEND Merit Equity New facts Due diligence
