Civil Procedure Flashcards
Summary Judgment
Summary judgment may be granted from the pleadings, affidavits, and discovery materials on file if it appears that no genuine dispute of material fact exists and that the moving party is entitled to judgment as a matter of law.
Unless local rule or court order dictates otherwise, a party may move for SJ at any time until 30 days after the close of discovery.
SJ may be partial.
Denial of SJ is not appealable.
Directed Verdict (JMOL)
A motion for JMOL can be made at the close of plaintiff’s evidence or any time prior to the case being submitted to the jury. The standard is whether a court, viewing the evidence in the light most favorable to the non-moving party determines that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party, the court will grant the motion.
Renewed JMOL
Must have first moved for a directed verdict and the renewed JMOL motion must be made within 28 days after entry of judgment. A party is generally limited to those issues raised in the original JMOL.
Motion to Amend Prior Orders or Renew Prior Motions
Rule 59(e): when (1) new evidence has been discovered, (2) there has been an intervening change in controlling law; (3) there is a need to correct clear error law or fact; (4) there is a need to prevent manifest injustice. Must be brought within 28 DAYS of the order, after party must seek Relief from Judgment. An order that is not yet final may be modified.
Domicile (Individual)
Reside + Intent to Reside
A person is domiciled where they currently reside coupled with an intent to remain indefinitely.
If a person resides in multiple states, a court will apply the CENTER OF GRAVITY TEST which will look to see which state the person has the most significant connections. (where they spend the most time, taxes paid, mail received, work, organizations)
Domicile (Corporation)
A corporation is domiciled in the state that it is incorporated in and the state where its principal place of business is located. In order to determine the principal place of business, there are two tests, (1) nerve center test, (2) place of operations test.
- Nerve Center Test. Court looks to where the corporate headquarters are located OR the home office where the directors, officers, and conduct the main corporate business.
- Place Of Operations Test. Court looks at where most of the manufacturing or money-making activities takes place.
Venue
Venue is proper in a judicial district where: (1) any Defendant resides, if all reside in same state (2) where a substantial portion of the claim occurred, (3) where a substantial part of the property is situated, (real property); (4) in any district where the defendant is subject to personal jurisdiction at the time the action is filed if no other district where the action may be brought, OR (5) where there is SMJ over the claim.
Discovery
Parties are required to disclose, without being asked, information to other parties about their case. This includes all information “then reasonably available” that is not privileged or protected as work product. A party is not relieved from her obligations of discovery merely because she has failed to complete her investigation or because another party has not made his disclosures or has made inadequate disclosures.
Three types of discovery are required: (1) initial disclosures (2) disclosure of expert testimony (3) pretrial disclosures
Initial Disclosures
Without waiting for a discovery request, parties must provide to the other parties: (1) the identity of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless they would use it solely for impeachment; (2) copies or descriptions of documents or other tangible items that the disclosing party may use to support its claims or defenses, unless it would be solely used for impeachment; (3) a computation of damages claimed by the disclosing party and copies of documents upon which the computation is based; (4) copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.
Initial disclosures must be made within 14 days after the discovery conference required by Rule 26(f) unless a different time is set by court order or by stipulation.
Disclosure of Expert Testimony
ID expert witnesses expected to testify at trial. If the expert has been specially retained to provide expert testimony, or if the expert’s duties as the party’s employee regular involve giving testimony, the disclosure must be accompanied by a report and signed by each expert witness stating her qualifications, the opinions to be expressed, and the basis for those opinions, along with a list of cases in which she has testified in the last four years, and her compensation.
Pretrial Disclosures
At least 30 days before trial, each party must disclose: (1) the witnesses she expects to call to trial; (2) the witnesses she will call if the need arises; (3) the witnesses whose testimony will be presented by means of a deposition; and (4) a list of documents or exhibits she expects to offer or might offer if needed. Evidence or witnesses that would be admitted only for impeachment need not be disclosed.
Within 14 days after disclosure, a party may serve objections to use of the depositions at trial and to the admissibility of disclosed documents and exhibits. If not made at this time, such objections are waived, except where the objection is based upon relevancy, prejudice, or confusing under FRE 402 and 403.
Diversity Jurisdiction
is obtained when the citizenship of all parties is completely diverse from each other, and the amount in controversy exceeds $75,0000. All plaintiffs in the suit must be citizens of different states from that of all the defendants or diversity does not exist. A party is a citizen of the state where she is domiciled. The amount in controversy is based on the damages alleged in good faith in the complaint. Costs and expenses do not count in this amount and the plaintiff can aggregate their claims against one defendant, or multiple if they are joint tortfeasors.
Supplemental Jurisdiction
Supplemental jurisdiction may be used to bring a claim in federal court that would not otherwise meet the requirements of SMJ. A court may exercise supplemental jurisdiction over new claims which arise from a common nucleus of operative facts, which generally includes claims that arose out of same transaction or occurrence. It may NOT be used to overcome a lack of diversity; a Plaintiff in a diversity case may not assert supplemental jurisdiction if it would violate complete diversity.
The court has discretion to refuse Supplemental claims if: (1) the federal question is dismissed early in proceeding; (2) the state law is complex; OR (3) state law issues would predominate.
Service of Process
D must be served with the summons and complaint within 90 DAYS of filing the complaint or the case will be dismissed without prejudice. Court must extend for good cause. Anyone who is at least 18 years of age and is not a party to the subject action may serve process. A defendant must be served in one of the following ways: physically giving a copy of the complaint and summons; substituted services – physically giving it to someone of age and discretion residing at residence of D (process server, mail), Delivery on agent; following state rules – can be made by following state law for serving a summons
Sanctions
Rule 11. Rule 11(b) requires all pleadings be: (1) well-grounded in fact, (2) warranted under existing law, AND (3) not for an improper purpose. Pursuant to 11(c), the court may impose sanctions for violations of 11(b).
a. Certification to court: Attorney certifies to the best of her knowledge, information and belief after reasonable inquiry under the circumstances: (1) the paper is not presented for an improper purpose; (2) warranted by existing law or non-frivolous argument for the modification of the law; (3) the allegations factual contentions either have, or upon further discovery are likely to have evidentiary support; and (4) denials of factual contentions are reasonably based on a lack of information.
Transfer of Venue
Venue can be transferred if venue was originally improper, but when a party requests a change of venue, the court will balance: (1) where the parties are from, (2) where the evidence is located, (3) what law governs the case, and (4) where the witnesses are located. Receiving court must have SMJ and PJ & the convenience of the witnesses require it, OR the interests of justice require otherwise.
Personal Jurisdiction (General)
Based on the presence of the D in the state at the time jurisdiction is acquired (when served). It is general because the court has jurisdiction over a defendant for any and all causes of action for which there is also SMJ. Can be obtained by the following methods: (1) physical presence of the defendant in the state; (2) domicile; (3) activities in the state are substantive or pervasive to prove the D is in the state (systematic & continuous); (4) consent; (5) agency; AND (6) waiver.
Personal Jurisdiction (Specific)
Claim arises out of defendant’s contact with the forum state. Can be obtained through a state’s Long Arm Statute and must comport with the US Constitutional requirements.
(a) *Long Arm Jurisdiction: {Non-Resident } The US constitution requires that in order to obtain jurisdiction over a non-resident defendant under a long arm statute, the defendant must have (1) sufficient minimum contacts with the forum state so as (2) NOT to offend traditional notions of fair play and substantial justice.
(b) State’s Long Arm Statute. {PJ over a non-res Δ} A state’s long arm statute allows the forum state to assert personal jurisdiction over a defendant who is not a resident of the forum state. The forum state’s Long Arm Statute must meet the constitutional requirements (see above). If the conduct does not fall in State’s Long Arm statute, might be Quasi In Rem jurisdiction.
i. Sufficient Minimum Contacts (Test): the defendant (1) purposefully availed himself to the privilege of doing business in the forum state; AND it was reasonably foreseeable that they would be subjected to PJ in the forum state.
ii. Traditional Notions Of Fair Play And Substantial Justice. Are not offended when if it is fair and reasonable for one to defend a suit in the state and be subjected to Personal jurisdiction. Factors: (1) there is general jurisdiction (systematic & continuous activity) or specific jurisdiction (claim arises out of defendant’s contact with the forum); (2) the forum is convenient (parties, witnesses, evidence); AND (3) the forum state has some interest in the litigation.
In Rem Jurisdiction
Obtained when the state has jurisdiction over Defendant’s property which is located within the state.
Quasi In Rem Jurisdiction
May be used as a gap filler when defendant’s conduct does not fall into the state’s long arm statute. If Defendant has engaged in minimum contacts not recognized by the state’s long arm statute, but has attachable property located in the state, the state can use that, and the property can be attached. The property does not have to be related to the claim.
Compulsory Joinder of Parties
Allows a current party to force a necessary and indispensable party to join the case so long as the court has SMJ and PJ.
A party is necessary and indispensable when: (1) the court cannot afford complete relief without the party; (2) there is a danger that the party will be harmed; OR (3) there is a possibility of double liability.
Permissive Joinder of Parties
A Plaintiff may join either P’s or D’s so long as claims (1) arise out of same transaction or occurrence AND (2) involve a common question of law or fact.
Compulsory Joinder of Claims
Cross claim: Any claim D may have against co-D or, any claims P may have against Co-P, which arise out of the same transaction or occurrence as the original claim
Class Action Lawsuit
A class action is proper if:
1) The class is so numerous that joinder of all members is impracticable
2) There are questions of law and fact common to the cases
3) Named parties’ interests are typical of the class
4) Named parties will adequately represent the interests of the absent members of the class
5) And one of the following: a) separate actions would create a risk of inconsistent results or would impair the interests of unnamed parties b) D has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; or c) common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication
