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Josh's MBE Cards > Civil Procedure > Flashcards

Civil Procedure Flashcards

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1
Q

Limitations on Personal Jurisdiction: Statutory

A

Generally requires:

  1. Presence in the forum state;
  2. Domiciled in the forum state;
  3. Has given express or implied consent to jurisdiction; OR
  4. Meets the requirements of the forum’s long arm statute.
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2
Q

Constitutional Limitations on Personal Jurisdiction

A

Must have:

  1. Contacts;
  2. Relatedness;
  3. Fairness; and
  4. Notice.
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3
Q

Constitutional Limitations on Personal Jurisdiction: Contacts

A
  1. Purposefully availed herself of forum state’s laws; and
  2. Knew or reasonably should have anticipated that her activities in the forum made it foreseeable that you’d be hailed into court there.

Stream of commerce cases is sufficient

Passive website insufficient unless it targets readers in the forum.

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4
Q

Constitutional Limitations on Personal Jurisdiction: Relatedness

A
  1. If the claim is related to the D’s contact with the forum more likely to find specific jurisdiction; or
  2. If the claim is unrelated with the D’s contact with the forum, must have GENERAL jurisdiction over the D which requires D be AT HOME in the jurisdiction.

TIP: If cause of action is unrelated to the D activities in the forum there must be general personal jurisdiction over all causes of action over the D.

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5
Q

Constitutional Limitations on Personal Jurisdiction: Fairness

A
  1. Whether the forum is so gravely difficult and inconvenient that D is put as severe disadvantage;
  2. Forum states legitimate interest in providing redress to its resident;
  3. Plaintiff’s interest in obtaining convenient and effective relief;
  4. Interstate judicial system’s interest in efficiency; and
  5. Share interest of the states in furthering social policies.
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6
Q

Diversity

A
  1. Must have complete diversity, no P may be same state as ANY D. Diversity must exist when ACTION COMMENCED (that is ALL).
  2. Amount in controversy must be in EXCESS of 75,000 EXCLUSIVE of costs and INTEREST.
  3. Jurisdiction between citizen and alien, but doesn’t apply where alien is a permanent resident and is same state as the P.
  4. No fed jurisdiction in action by an alien against an alien. Only as additional parties.
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7
Q

Citizenship: Individuals, Corporations, Partnerships, LLC, Estates, and Class Action

A
  1. Individuals: Where they permanently reside and intend to return to. If they are moving it doesn’t change until they actually change domicile.
  2. Corporations: (i) Where incorporated; and (ii) principal place of business (where high level officers direct or control the corporation).
  3. Partnerships: Only the citizenship of each partner. No business nexus/principal place of business component.
  4. LLCs/Unincorporated entities: Same as Partnerships.
  5. Estate: Same as decedent.
  6. Class Action: On the basis of the named members who are suing.
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8
Q

Supplemental Jurisdiction

A

Allows the Court to entertain claims that, by themselves, do not meet the requirements of federal question or diversity jurisdiction, arises where the supplemental claims arise from a COMMON NUCLEUS OF OPERATIVE FACT.

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9
Q

Joinder/Additional Parties: Intervention, Substitution, Impleader, Cross Claim

A
  1. Intervention: Original P’s may not invoke supplemental jurisdiction against intervening
  2. Substitution of parties:
  3. . Impleader: Idk.
  4. Cross Claim: Same transaction and occurrence. No diversity issue.
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10
Q

Joinder/Additional Parties: Intervention, Substitution, Impleader, Cross Claim

A
  1. Intervention: Original P’s may not invoke supplemental jurisdiction against intervening
  2. Substitution of parties:
  3. . Impleader: Idk.
  4. Cross Claim: Same transaction and occurrence. No diversity issue.
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11
Q

Erie Doctrine

A

Fed Court applies the substantive law of the state in which it is sitting, but may apply its own procedural law. The following are substantive:

  1. SoL
  2. Rules for tolling SOL
  3. choice of law rules
  4. elements of a claim or defense.

Outside those the Court also considers if:

  1. Outcome determinative;
  2. Balance of interest;
  3. Forum shopping increase.
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12
Q

Federal Question Jurisdiction/Supplemental Jurisdiction

A
  1. Must involve a question of federal law;
  2. Must appear on in P’s complaint.

Does not apply where it is raised in anticipation of some defense.

Court has DISCRETION to exercise supplemental jurisdiction over state claims where:

  1. Same common nucleus of operative fact; and
  2. Would normally expected to be tried in on proceeding.

Can retain jurisdiction over state law claim even if the federal claim is dismissed during trial.

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13
Q

Exclusive Fed Jurisdiction

A
  1. Bankruptcy
  2. Patent/Copyright
  3. IRS cases
  4. SEC cases
  5. Actions against foreign states removed from state to fed courts
  6. postal matters
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14
Q

Pendent Party Jurisdiction

A
  1. P sues more than one D
  2. Fed jurisdiction over one of the D’s; and
  3. the claim against the second D does not invoke fed q or diversity.

In the above case the second D (or in multiple P cases, the second P) may be able to invoke supplemental jurisdiction if common nucleus of operative fact exists.

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15
Q

Venue is Proper Where

A
  1. District in which any D resides, if all D’s reside in the same state;
  2. The district where a substantial part of the events or omissions took place or a substantial part of the property at issue; or
  3. If 1 or 2 cannot be satisfied, any district where ANY D is subject to personal jurisdiction.

Improper venue can be waived. Waived UNLESS TIMELY OBJECTION MADE.

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16
Q

Venue: Residence

A

Individuals: Where domiciled:

Corps: Personal jurisdiction

Non-resident/Alien: Any judicial district.

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17
Q

Venue: Transfer

A

If venue is proper, court may transfer for convenience of the parties or witnesses to any court where it could have originally been filed (i.e., proper jurisdiction AND venue).

If there is improper venue the Court can dismiss or transfer it to the proper venue under their own power in the interests of justice.

Applied Law:

  1. If venue was proper, law of transferor court.
  2. If venue was improper, law of transferee court.
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18
Q

Removal Jurisdiction

A
  1. Fed Court must have proper jurisdiction, jurisdiction need not have been proper in the state court.
  2. Only D can remove, and ALL D’s must join.
  3. May only remove to district court that encompasses state court.
  4. May not be removed for diversity if any D is a citizen of the forum state.
  5. Must be filed within 30 days of the date D receives a copy of initial pleading.
  6. If the case BECOMES removable due to dismissal of non diverse defendant, must be filed within 30 days of when it becomes removable, but, may not be done more than one year after brought in state court (disregarded where bad faith exists to defeat removal).
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19
Q

Injunctions Against State Court Proceedings

A

Generally not permitted unless expressly authorized by statute or when necessary to protect its jurisdiction.

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20
Q

Service

A
  1. Individual service, at place of abode with one of suitable age and discretion, or service upon an authorized agent of defendant.
  2. Corporations, business entities, serving an officer, managing or general agent, etc.
  3. The state rules where the Fed court sits.
  4. Party in foreign country: (i) international agreement; foreign country law, as directed by foreign official, personal service, or mail.
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21
Q

Timing of Pre-Answer Motions

A

A. Lack of Subject Matter Jurisdiction: Anytime, even on appeal.

B. Lack of jurisdiction over the person, improper venue, insufficient process, insufficient service of process: Waived if not raised by motion or answer, whichever is first.

C. Failure to state a claim, failure to join an indispensable party: Any time before trial or at trial.

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22
Q

Preliminary Injunction

A
  1. Irreparable harm;
  2. Harm to P outweighs harm to D;
  3. P is likely to be successful on the merits; and
  4. Public interest favors granting it.
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23
Q

Time to Answer

A

21 days after service, or 60 days for someone who waives service.

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24
Q

Effect of Failure to Answer

A
  1. Default: Is court clerk noting no answer filed within permitted timeframe. Can be set aside by the court. Clerk required to send all parties and defaulting party a notice and that a default has been entered.
  2. Default judgment: Is a judgment due to non opposition to the case. If D appeared, entitled to notice before entry of Default. Once entered loses ability to contest liability, but can contest the damages/amount.
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25
Q

Counterclaims: Compulsory and Permissive

A

Compulsory: Same transaction and occurrence, must be brought.

Permissive: Any other claim D has against P.

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26
Q

Amendments and Pleadings

A
  1. Pleading may be amended once within 21 days of its service, or if a responsive pleading, 21 days from receipt. Thereafter leave or consent is required.

Relating Back: If it relates to the same transaction/occurrence/conduct as the original pleading it will ‘relate back’ for SOL purposes.

Changing Party: Relates back if: new party had sufficient notice of the action to avoid prejudice, and knew that but for a mistake concerning her identity she would have been named originally.

27
Q

Certification Upon Presentation to the Court

A

What handing in a paper to the Court means:

  1. Not presented for improper purpose
  2. Warranted by existing law or non-frivolous
  3. Have or likely to have evidentiary support; and
  4. Denials are warrantied on the evidence or reasonably based on a lack of information or belief.
28
Q

Compulsory Joinder

A

Questions:

  1. Should the absentee be joined;
  2. Can they be joined; and
  3. If not joined, can the action proceed?
29
Q

Compulsory Joinder: Should They be Joined?

A

Exists where:

  1. Complete relief cannot be accorded among the other parties to the lawsuit in their absence; or
  2. Absentee has such an interest in the subject matter that a decision in their absence will either impair or impede his ability to protect the interest or risk incurring multiple or inconsistent obligations.
30
Q

Compulsory Joinder: Can They be Joined?

A

If they should be joined, and there is no jurisdictional obstacle, then they must be joined. If they cannot be joined then proceed to whether action should proceed.

31
Q

Compulsory Joinder: Should the Action Proceed Without Absentee?

A
  1. Extent of prejudice to any/all parties;
  2. Extent to which prejudice can be reduced or avoided;
  3. adequacy of judgment without absentee; and
  4. Whether the party has an adequate remedy in another forum if dismissed for non-joinder.
32
Q

Class Action Requirements

A

Proper if:

  1. Class is so numerous that joinder of all members is impracticable;
  2. Questions of law or fact common to the class;
  3. Named parties interests are typical of the class;
  4. Named parties will adequately represent the absent members of the class; and
  5. One of the following is present:

(i) Risk of inconsistent results or impair the interests of the unnamed parties;
(ii) injunctive or declaratory relief is appropriate for class as whole; or
(iii) common questions of law or fact predominate and superior to alternative method of adjudication.

Court can certify/certify class at any time.

33
Q

CAFA

A

Class Action Fairness Act. Subject matter jurisdiction is established where:

  1. Any class member is of diverse citizenship from any D;
  2. Amount in controversy exceeds $5mm; and
  3. At least 100 members in the proposed class or classes.

Any D may removed to federal court.

No CAFA for public officials, securities law, or internal affairs of corp.

34
Q

Interpleader

A

When a suit is filed by a stakeholder in order to determine who has valid claim to the sake.

Two grounds:

  1. Regular rules. (diversity/fed q); or
  2. Special rules, only diversity between any two contending claimants and $500 be at issue.
35
Q

Timing

A

14 days:

Expiration of TRO, Jury demand (serve all parties), time to appeal class action cert or denial.

21 days:

Time after service of complaint to answer the complaint or file a Rule 12 motion, time to amend pleading once as matter of course, time to withdraw pleading after Rule 11 motion is served

28 days:

Time after judgment to file a renewed motion for judgment as a matter of law, time to file motion for a new trial

30 days:

Time for initial removal, time for remand, time to return request to waive service, time for appeals.

60 days:

If D waived service, time to answer complaint.

90 days:

General time limit for service of process.

1 year:

Outer time limit for removal based on diversity.

36
Q

Intervention

A

Available as of right where:

  1. Applicant claims an interest in the property or transaction that is the subject matter of the action;
  2. The disposition of the action without him may impair his ability to protect that interest; and
  3. The current parties do not adequately present/represent the intervenors rights.

Permissive where supported by independent jurisdictional ground.

37
Q

Third Party Practice

A

May implead a third party if they are liable to you in the underlying action. Venue can be improper as to third party. Third party may assert defenses to original claim and the third party action.

38
Q

Derivative Action

A

Can sue to enforce right of corporation where:

  1. Was SH at the time;
  2. Is not collusive effort to enforce jurisdiction; and
  3. Demand on the directors was made, and if state law requires, on the shareholders.

For diversity look at the corporations damages and the corporations citizenship as a Defendant.

39
Q

Discovery: Duty of Disclosure

A

Generic duty to disclose information to the other parties about the case. Must make reasonable inquiry into the facts prior to making the disclosure.

40
Q

Initial Disclosure

A

Exactly what it sounds like. All the preliminary non privileged information about the case. Names of witnesses and parties, damages, copies of documents, etc.

Must be made within 14 days of discovery conference.

41
Q

Disclosure of Expert Testimony

A

If intended to rely on at trial must be disclosed. If for case in chief 90 days before trial, if solely to rebut someone else’s expert only 30 days.

42
Q

Parties Disclosure

A

Made at least 30 days before trial.,

43
Q

Trial Preparation Materials

A

Work product of another party made in anticipation of litigation is only discoverable:

  1. Upon showing a substantial need; and
  2. To avoid undue hardship in obtaining materials in another way.

Doesn’t apply to a statement previously made by that party.

44
Q

Issues Juries Do/Do Not Decide

A
  1. Legal claims
  2. NOT EQUITABLE CLAIMS
  3. If both legal and equitable, legal is tried first.
  4. D has right to have Jury decide damages.
45
Q

Juror Disqualification

A
  1. For cause removal (bias)

2. three batson challenges that aren’t racist or sexist.

46
Q

Jury Deliberations

A
  1. May only take into jury room the papers or exhibits in evidence and their own notes.
  2. May not conduct experiments in jury room.
  3. May not view property or places involved in the case except by court order.
47
Q

Erroneous Verdict

A

If there is an inconsistent verdict (i.e., in a special verdict where you have a conclusion that doesn’t match their answers to the ROGs), the Judge can:

  1. Order a new trial;
  2. Make them deliberate; or
  3. Enter a verdict consistent with jury intent.
48
Q

Dismissal by Plaintiff

A

May happen voluntarily before D has filed answer or filed summary judgment motion. Without prejudice, unless this is the second time.

49
Q

Juror Misconduct

A

If juror concealed material facts in voir dire or gave false testimony hiding bias, then a new trial is ordered. If error is harmless then no new trial.

50
Q

Summary Judgment

A

Requires:

  1. No genuine dispute of material fact; and
  2. Moving party entitled to JMOL.

Filed within 30 days after CLOSE of discovery.

51
Q

JMOL

A

Entered where Court finds that a jury would not have a legally sufficient basis to find for the non-moving party. Evidence must be viewed in light most favorable to the non-moving party.

Request must be made BEFORE case submitted to the jury.

Renewed JMOL made within 28 days after verdict. Limited to issues raised in the original JMOL.

52
Q

Motion for New Trial

A
  1. Must be made within 28 days of verdict.
  2. May be granted because (i) verdict is against the weight of evidence; (ii) because of an error or misconduct; or (iii) if verdict is excessive.

Where (iii) is the case, can allow the P the offer of lesser damages or a new trial. The reverse is not allowed in federal court.

53
Q

Grounds for Relief from Judgment

A
  1. Mistake, inadvertence, surprise, or excusable neglect;
  2. Newly discovered evidence that by reasonable diligence could have have been discovered in time to move for a new trial (evidence must have BEEN IN EXISTENCE before JUDGMENT to fall under this category);
  3. Fraud, misrepresentation, or other misconduct of an adverse party;
  4. Void judgment (fundamental flaw such as lack of jurisdiction or deprivation of due process)
  5. Judgment has been satisfied, released, or discharged

For 1-3 must be made within a reasonable time not to exceed a year.

54
Q

Judgments with Multiple Parties

A

The Court can enter a final judgment on less than all claims and parties ONLY upon an EXPRESS determination that there is no just reason for delay. Unless judge makes aforesaid determination than said judgment is not a ‘final judgment’ and is not yet appealable.

55
Q

Extension of Time for Appeal

A

Generally within 30 days, but upon a showing of excusable neglect can be extended by 14 days or 30 days from when it would have run.

56
Q

Interlocutory Appeals Act

A

Generally IA’s are not appealable, except for injunctions, appointments of receivers, etc. Under the IAA, IA’s review is discretionary where:

  1. Trial judge certifies that it involves a controlling question of law about which there is a substantial difference of opinion; and
  2. At least 2 appellate judges agree to hear it.
57
Q

Collateral Order

A

If it is collateral and severable then it may be deemed a final order and appealable.

58
Q

Standard of Review: Matters of Law, Questions of Fact, Mixed Questions of Law and Fact, and Discretionary Matters

A

Matters of Law: De Novo. (Applies to a rejected JMOL)

Questions of Fact: Not disturbed unless clearly erroneous.

Plain Error: Applies to motion for new trial.

Mixed: De novo.

Discretionary Matters: Abuse of discretion.

59
Q

Stay Pending Appeal

A

No execution on judgment is allowed for 30 days after entry, usually you get a stay pending the appeal.

59
Q

Stay Pending Appeal

A

No execution on judgment is allowed for 30 days after entry, usually you get a stay pending the appeal.

60
Q

Claim Preclusion (Res Judicata)

A

Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is barred from trying the same cause of action in a later lawsuit.

61
Q

Collateral Estoppel (issue preclusion)

A

Under this doctrine:

  1. A final judgment for the P or D is conclusive in a subsequent action, BETWEEN THE SAME PARTIES, as to the issues ACTUALLY LITIGATED and ESSENTIAL TO THE JUDGMENT in the first action.
  2. Nonparties usually not bound.
  3. Applies to subsequent case in federal or state court.
62
Q

Jury Instruction

A

If you do not objection to an instruction, an appellate court will only use the plain error standard.

Josh's MBE Cards (9 decks)

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