Civil Procedure Flashcards
Forum non conveniens
Allows federal courts to dismiss or stay a lawsuit if a state or foreign judicial system is better suited to hear the case
This is permitted even when subject matter jurisdiction, personal jurisdiction, and venue are proper
Court must consider private and public interest factors, including the accessibility of evidence and witnesses
This should rarely be applied
A party may demand a jury trial on any triable issue by:
(1) serving the other parties with written jury trial demand no later than 14 days after the last pleading directed to that issue is served, and
(2) filing the jury trial demand with the court within a reasonable time after service of the demand
A preliminary injunction can only be granted after what?
What must a preliminary injunction contain?
- Notice of the hearing to the adverse party and a hearing on whether the injunction should issue
(1) The reasons why it was granted,
(2) a reasonable description of the prohibited or commanded acts, and
(3) the specific terms
Under the Erie analysis, when it is unclear whether an issue is substantive or procedural, a federal court sitting in diversity must apply state law if:
(1) it would be outcome determinative, and
(2) there is no countervailing federal policy interest
When must the initial conference to plan for discovery be held?
As soon as practicable, but at least 21 days before a scheduling conference is held or the judge’s scheduling order is due
The domicile/citizenship for purposes of diversity of an unincorporated association (partnership, LLC) is:
Every state where its members or partners are domiciled
The collateral order doctrine allows for an interlocutory appeal when:
(1) a district court order conclusively resolves an important issue,
(2) that issue is separate from the merits of the underlying claim, AND
(3) that order is effectively not reviewable on appeal from a final judgment
*Order rejecting attorney-client privilege claim is NOT a collateral order
Valid subpoenas issued by federal courts to U.S. citizens in foreign countries are validly served when the serving party:
(1) uses a method of service allowed by the federal rules, and
(2) pays the citizen’s attendance and travel expenses
A party can move for extraordinary relief within ONE year from the entry of a final judgment or court order that is based on:
(1) mistake, inadvertence, surprise, or excusable neglect,
(2) newly discovered evidence, or
(3) the opposing party’s fraud, misrepresentation, or misconduct
When removal is based solely on diversity jurisdiction, the action may not be removed if:
the defendant is a citizen of the state in which the action is filed
A court can exercise supplemental jurisdiction in a federal question case when:
Addition claims against the same party arise out of the common nucleus of operative fact
Permissive Joinder
(i) Joining party asserts any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(ii) any question of law or fact common to all plaintiffs will arise in the action
Counterclaim jurisdiction
Compulsory: D against P so long as it arises out of same transaction or occurrence and court has SMJ over original claim
Cross-Claim
May be asserted by:
- D against another D, or
- P against another P 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 the original claim
Service of Process - Federal Court sitting in diversity jurisdiction and federal question
Service may be effectuated through methods provided in federal rules AND may be effectuated by following the forum state’s law regarding methods of service
D must respond to an amended complaint within how many days after its service?
14
Can a class, pursuant to diversity jurisdiction only, be certified if no members of the putative class have a claim that meets the jurisdictional amount?
No, at least one member must meet the statutory jurisdictional amount for the court to exercise diversity jurisdiction.
A party can file a motion to alter or amend a final judgment within 28 days after entry of the judgment on any of the following grounds:
1) Judgment is based on a manifest error of law or fact,
(2) Alteration or amendment is necessary to prevent manifest injustice,
(3) New evidence that was unavailable during trial has been discovered, or
(4) Intervening change in the controlling law
In a jury trial, regarding jury instructions, a court:
(1) may instruct the jury at any time before the jury is discharged,
(2) MUST inform the parties of its proposed instructions before it instructs the jury and BEFORE the parties give their closing arguments, AND
(3) MUST give the parties an opportunity to object on the record and outside the presence of the jury before the instructions and closing arguments are delivered to the jury
Plaintiff is required to plead special damages with:
Specificity
Interpleader
Allows person holding PROPERTY (stakeholder) to force all potential claimants into a single lawsuit
Intervention as of Right
(i) non party has an interest
(ii) disposition would impair that interest, and
(iii) non party’s interest is not adequately represented by existing parties
Expert reports must be produced if:
Expert will testify at trial (must disclose 90 days before)
*If expert will not testify at trial, do not have to produce unless opposing party shows substantial need
Judgment based on jury verdict must be upheld if:
there was substantial evidence to support the verdict
Claim Preclusion (Res Judicata)
A final judgment on the merits of an action precludes a party from successive litigation of an identical claim in a subsequent action
Elements:
(1) Valid final judgment,
(2) Sufficiently identical claims, and
(3) Sufficiently identical parties (or their privies)
*IF P sues on less than all claims arising from a transaction, those claims merge if P wins or they are barred if P loses
Issue Preclusion (Collateral Estoppel)
Precludes re-litigation of issues of fact or law that have already been necessarily determined in an earlier adjudication
Requires only that the party against whom the issue is to be precluded was a party to the original action
Elements:
(1) Same issue,
(2) Actually litigated,
(3) Final, valid judgment, and
(4) the determination of the issue must have been essential to the prior judgment
*May be used OFFENSIVELY
In a civil action in federal court sitting under diversity jurisdiction, when an insurer is sued directly:
The insurer is domiciled in its state of incorporation, its HQ state, and the state in which the INSURED is domiciled
A party must first file a JMOL when?
Prior to the case being submitted the jury. If they do so, then they can filed renewed JMOL after verdict and entry of judgment
What interlocutory orders are reviewable immediately, as of right?
(1) An order granting, modifying, refusing, or dissolving and INJUNCTION;
(2) An order appointing or refusing to appoint a RECEIVER; and
(3) A decree determining the rights and liabilities of the parties to ADMIRALTY cases in which appeals from final decrees are allowed
Initial disclosures
Information about each individual who could have discoverable information, documents used to support claims/defenses, computation of damages, insurance agreements if it could cover the judgment
Must be made within 14 days after discovery conference
Temporary Restraining Order (TRO)
May be issued without notice to adverse party IF:
(1) immediate and irreparable injury will result, and
(2) movant’s attorney certifies efforts made to give notice or the reason why notice should not be given
Class is appropriate under CAFA when:
(1) class involves at least 100 members,
(2) primary Ds are not states, state officials, or other government entities,
(3) not securities related or litigation concerning the internal affairs or governance of a corporation,
(4) AIC exceeds $5 million, and
(5) minimum diversity exists (any member of class is diverse from any defendant)
If seeking injunctive/declaratory relief, additional claim for INDIVIDUALIZED monetary damages may not be sought
Alternative and inconsistent theories within a pleading are:
Permitted
Unless the parties stipulate otherwise, jury verdicts:
must be unanimous and must be returned by a jury of at least six members
If joint and several liability applies and not all potentially liable parties have been joined, are those other parties necessary parties?
No. Because joint and several liability applies, those parties are not subject to compulsory joinder since the plaintiff can recover all damages from the named party
Voluntary dismissal (by plaintiff) is appropriate without consent if dismissal is timely. When is the dismissal timely?
If it is made before an answer to the complaint is filed or before a MSJ is filed
Expert Disclosure
Parties are required to identify expert witnesses that will testify at trial and produce their expert reports at least 90 days before trial or 30 days after disclosure of opposing party’s expert on the same subject matter
When transfer is made from federal court that was a proper venue, to a federal court in another state, federal court must:
Apply the conflict of laws rules of the transferor court
In rem jurisdiction
Forum court generally has personal jurisdiction over a D when the dispute centers on ownership of property (personal or real) in the forum state
Venue is proper in judicial district where:
(i) Any D resides in a state where all D reside,
(ii) where substantial part of the events/omissions occurred, or
(iii) where property that is subject of the action is located
* **otherwise, where any D is subject to PJ
Motions against the complaint must be made:
within 21 days of service
Lack of PJ, insufficient process or service, improper venue can be raised:
In pre-answer motion or answer, or within time to amend answer as of right - otherwise it is waived
Generally, federal court applies the choice of law rules from what state?
The forum state
May a party voluntarily change state citizenship after the accrual of a cause of action but prior to the commencement of a lawsuit for diversity purposes?
YES
Courts should freely give leave to amend when justice so requires, and amendments are:
generally allowed unless the amendment would be futile because it would immediately subject the claim to dismissal or would result in undue prejudice to the opposing party
An amendment to the pleading relates back to the date of the original pleading when:
The amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading
In a case that is removed from state court, venue its proper:
In the federal district court in the district where the state action was pending
A temporary injunction remains in effect:
for the amount of days to be set by the court, but NO LONGER THAN 14 days unless good cause exists or by CONSENT of the adversary
An appellate court may address a plain error in jury instructions given by the trial court:
Even if the party has failed to object to the instructions, WHEN the error affects substantial rights
If a MSJ is properly made and supported then an opposing party:
May not rely merely on allegations or denials in her own pleading, but she must either set out specific facts showing a genuine dispute for trial or show by affidavit or declaration that, for specified reasons, she cannot present facts essential to oppose the motion
*Cannot repeat general denial!
Choice of Law Considerations
In determining whether to apply state or federal law, the district court will start by determining whether there is a conflict.
If the applicable state and federal laws do conflict, then is there a federal statute or rule on point?
If there is NO federal statute or rule on point, consider federal common law (ask whether failure to apply state law will lead to different outcomes in state and federal court)
If YES, then apply state law, unless affirmative countervailing fed interests are at stake that warrant application of federal law
*Federal common law is also to be applied when a “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law
Once a party has been fully heard on an issue at trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if:
The court finds that there is insufficient evidence to a jury reasonably to find for that party
- must view in light most favorable to opposing party
- if reasonable persons can draw different inferences, issue is for the jury to decide
The Bulge Provision
A federal court has PJ over a third party defendant, joined under Rule 14, who is served within a U.S. judicial district and not more than 100 miles from the court from where the summons is issued, even if state law would otherwise not permit such service
When a member of a class who has the option of oping out of the settlement fails to do so:
that member is bound by a settlement agreement approved by the court
Under the 7th amendment, if an action involves legal and equitable claims that raise issues of fact common to both:
The jury must be permitted to determine these issues by trying the legal claim first
12(b)(6) motion to dismiss can be granted:
if the claim fails to assert a valid legal theory of recovery or fails to allege facts sufficient to support a cognizable claim
- can only consider allegations/attached exhibits in the complaint
- If the court considers other evidence, it should be treated as a MSJ
Federal Statutory Interpleader
Diversity is met if any two adverse claimants are citizens of different states and property at issue is $500 or more
A shareholder who brings a derivative action on behalf of a corporation must:
have owned stock in the corporation at the time of the wrong
MSJ timing
A party may file a MSJ at any time until 30 days after the
Voire Dire by Judge
If the court examines the prospective jurors, then it must permit the parties or their attorneys to make any further inquiry it considers proper
Who determines the form of verdict the jury returns?
Judge
When a motion for new trial is filed, the time for given notice of appeal will run:
From the entry of the order denying the new trial (30 days)
Findings of Fact
Cannot be set aside unless clearly erroneous, and due regard must be given to the trial court’s opportunity to judge the cred of the witnesses
Diversity for Rule 22 Interpleader
Citizenship of the party bringing the action must be completely diverse from that of the claimants and statutory AIC must be met
Joinder of Claims
A party asserting a claim may join even unrelated claims against the opposing party IF the court has subject matter jurisdiction over the new claims
*If OG is federal question, then a non federal claim may be joined only if diversity exists
Younger Doctrine (Abstention)
A court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute
Pullman Doctrine (Abstention)
Federal court may refrain from ruling on a federal constitutional claim that depends on an unsettled issue of state law best left to the state courts
In a diversity case on a state law claim, the federal court may properly use its inherent power to assess attorney’s fees as:
A sanction for D’s bad faith conduct during the litigation, even if the law of the forum state provides that attorney’s fees may not be awarded to the successful party
What is considered “substantive”?
Elements of a claim, statutes of limitation, burdens of proof
When a proposed class action would bind class members:
The court must approve the proposed settlement after a hearing and on a finding that it is fair, reasonable, and adequate
*A class member who objects to the proposed settlement has the right to appeal the court’s approval of it
