Civil Procedure Flashcards
Objecting to PJ
Defendant can object to PJ in a pre-answer motion OR in an answer as long as it is the first response
Venue
Proper in (1) any district where defendant resides, if all defendants reside in the same state OR (2) where the causes of action occured
Service
Service is proper on a defendant at their home with someone who lives there who is of suitable age, discretion, maturity
TPD claims against Plaintiff
May assert claim if it arises out of same transaction or occurrence of Plaintiff’s claim.
Discretionary!
Counterclaims
Compulsory if arises from same transaction or occurrence. Waive it if don’t raise it.
Permissive if arises from unrelated claim.
Amendments to complaints substituting a new defendant
Allowed and amendment will relate back IF
(1) claims in amendments arise from same transaction or occurrence
(2) within time allotted for serving original complaint (90 days from filing)
(3) New defendant received notice that it won’t be prejudiced in defending on the merits
(4) defendant knew or should have known that the action was against them.
Timing for motions to dismiss
First response:
- Lack of Pj
- Improper venue
- improper process
- improper service of process
Must be raided through trial
- failure to join indispensable party
Never waived:
- SMJ
FRCP Rule 4
Service of process as provided by rules in state where the court sits or where the service is to be effected
Discovery Scope
Anything relevant to a claim or defense is discoverable, so long as it is proportional to the needs of the case and not privileged
We don’t care whether the evidence is admissible a this point.
Qualified Immunity from Discovery
Under the work product doctrine, work prepared in anticipation of litigation may be discoverable under the qualified immunity if:
(1) there is a substantial need for the work, AND
(2) it is not otherwise available
Sanctions
Only sanctioned if disregard motions to compel.
Will be required to pay reasonable expenses incurred by plaintiff in making the motion to compel
Procedural Mistakes
Need to make timely objection otherwise waive right to appeal
What is immediately appealable?
- Orders granting certification of class actions
Motion for new trial
May be granted when there is an error during the trial.
Errors during trial include:
- jury misconduct
- excessive or inadequate verdict
- verdict goes against evidence presented
Remittitur
Judge believes jury’s award is so excessive as to shock conscience
Judge may order new trial or OFFER Plaintiff remittitur
