Civil Procedure Flashcards
1
Q
Diversity Jx
A
- Diversity of Citizenship: Under diversity jx, District Courts may hear cases between citizens of different states, as long as the amount in controversy is over $75,000 and there is complete diversity.
- Diversity turns on where a person is domiciled determined at the time the lawsuit is filed.
- A person is domiciled where she is in her permanent home, where she intends to remain indefinitely.
- A corp is domiciled both where incorporated and where it’s principal place of business is located.
2
Q
Federal Question
A
- Federal Question: District courts can hear any case arising under a federal constitution, statute or treaty.
- The federal question must appear on the fact of the 𝛑’s well-plead complaint.
- It cannot appear in the answer.
- Further, 𝛑 cannot merely anticipate a federal defense in its complaint.
3
Q
Supplemental Jx
A
- Supplemental: A federal court has smj on claims that could not otherwise be brought in federal court if they are related to other claims where federal smj exists.
- The test is whether the claims form part of the same case or controversy. If the sole basis for SMJ is diversity, a 𝛑 cannot use supp jx to add a claim against a nondiverse party.
4
Q
Personal Jx
A
- A court must have jurisdiction over parties. It can find jurisdiction via the traditional bases (CDP), a statutory basis (via a long arm statute) or constitutional basis. The traditional basis includes consent (appearance, implied by presence) domicile, and presence (service in forum state).
- If none of the traditional bases are satisfied, PJ may be obtained by using a state’s long-arm statute. This requires (via Constitutional Due Process) that minimum contacts exist between the Δ and the forum state. Sufficient minimum contacts exist when: 1) there is either general or specific jurisdiction present and 2) the exercise of such jurisdiction does not offend traditional notions of fair play and substantial justice (Δ’s convenience, interest of forum state, etc. ) analyze both
- Specific Jurisdiction gives courts jx over out-of-state Δs for their specific contract with the forum state. The clam must arise out of the specific contact with the forum state. SJ is present if: 1) Δ purposefully availed himself of the benefits of the forum state; AND 2) the Δ knew or reasonably should have anticipated that his activities in the forum state made it foreseeable that he may be “hailed into court” there. For stream of commerce cases, there will be SJ over the Δ if 1) the Δ places a product in the stream of commerce in the forum state; AND 2) commits some other act to show intent to serve the forum state.
- General Jurisdiction: GJ is present when the Δ’s contact with the forum state is so systematic and continuous that he is essentially at home in the forum state. When GJ is present, the Δ can be sued on any claim (even if the claim is unrelated to the Δ’s contact with the forum state). A corp is “at home” where incorporated and its principal place of business.
5
Q
Service of Process
A
- 𝛑 has 120 days after filing his complaint to effect service of summons to the service. This can be done by Δ’s waiver of service, personal delivery to Δ or someone authorized by law to accepted service, or any other method allowed under the law of the state.
6
Q
Venue
+ Transfer
A
- Venue is proper in a district where 1) any Δ resides if all defendants reside in the same state, 2) a substantial part of the events, omissions, or property giving rise to the claim occurred or 3) any Δ is subject to PJ if there is no district where venue is proper.
- Transfer to a more appropriate forum: Under 28 U.S.C. §1404, the fed court has authority to transfer a case to another federal district for the convenience of the parties and witnesses and in the interests of justice. The new forum must have SMJ and PJ. The court will apply the law of the transferor forum. Motion to transfer to a more appropriate forum should be denied if the case could not have been filed there to begin with. For transfer to a proper venue when a case is filed in the wrong venue, the law of the transferee court applies.
7
Q
Erie Doctrine
A
- Under the Erie doctrine, courts sitting in diversity jx must apply state substantive law and federal procedural rules. There are 3 exceptions where procedural matters have been held to be substantive: 1) tolling of the statute of limitations, 2) burden of proof and 3) conflict of laws. Federal judges will follow federal common law in areas of federal jurisdiction. When Congress acts, the statutes will preempt prior federal judicial decisions.
8
Q
TRO & PI
A
- A Temporary Restraining Order can be issued without notice to the adverse party if the requesting party shows: 1) a risk of immediate and irreparable harm; 2) evaluation of injuries (whether plaintiff’s harm outweighs the harm to the Δ); 3) there is a high likelihood of success on the merits and 4) it is within public interest to issue. TRO will last no longer than 14 days unless the court extends for good cause or rules on a preliminary injunction.
- A preliminary injunction is equitable relief with the objective of preserving the status quo. If granted, the matter must be tried within the 6 months unless parties stipulate or good cause it shown. Adverse party must be given notice. Same four factors of TRO considered.
9
Q
Amending Pleadings/Relation Back
A
- A pleading may be amended as of right before answer is served within 21 days of service or pre-answer motion. Otherwise, need leave of court or consent of adverse party.
- When SoL has run, An amendment adding a new claim or defense related back if it arises out of the same T/O. An amendment adding a new party relates back only if 1) the new party has sufficient notice of the action to avoid prejudice, 2) the new party knew (or should have known) that but for a mistake concerning her identity, she would have been named originally and 3) original pleading was timely.
10
Q
Cunterclaims
A
A Δ may assert a claim against the 𝛑 if the claim arises from a common question of law of fact. The claim will be permissive unless it arises out of a common nucleus of operative fact in that it arises out of the same transaction/occurrence. If this is the case, the counterclaim is mandatory and thus, must be asserted in the action.
11
Q
Attorney Work Product
A
- Any material or documents prepared in anticipation of litigation by attorney or their agents/consultants are work product and have the privilege of immunity from discovery. Written statements given by witnesses might be discoverable even if considered work product if the other party can show substantial need and undue hardship. Attorney’s mental impressions are never discoverable.
12
Q
Motion for Summary Judgment
A
- Summary Judgment: Rule 56(a) allows a summary judgment motion to be granted only if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. The motion may be supposed by depositions, affidavits, and more. It may be filed at any time until 30 days after close of discovery.
13
Q
Motion to Dismiss
A
- To Dismiss: Pleadings may be challenged by a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. MTD is a judgment on the pleadings. It essentially states that even if all the factual allegations of the complaint are accepted as true, 𝛑 cannot prevail as a matter of law. Motion will be granted only if appears beyond a reasonable doubt that the 𝛑 could prove no facts consistent with the complaint that would entitle 𝛑 to relief (low burden on 𝛑)
14
Q
Judgment as a Matter of Law
A
- As a matter of law: can be brought by either party and the issue is whether the evidence is sufficient to submit the care to the jury. It will be denied unless the moving party shows that, as a matter of law, there is no evidence or reasonable inference to sustain a verdict on behalf of the party opposing the motion.
15
Q
Final Judgment Rule
A
- This Rule state that federal appellate courts may only review final judgments of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.
