Civil Procedure Flashcards
What is subject matter jurisdiction?
the power of the court to decide this kind of case
What is personal jurisdiction?
the power of the court to decide the rights and liabilities of this defendant
Federal courts are courts of limited jurisdiction; state courts are generally courts of general jurisdiction meaning anything can be heard that is properly brought before them
o
The basis for federal SMJ must be affirmatively pleaded and if challenged, it must be proved that there is a basis for SMJ
o
Lack of SMJ can be raised by any party at any time, even on appeal
o
When does federal question jurisdiction exist?
when the federal law issue is presented in the plaintiff’s complaint. The complaint must include elements of the claim, but it need not include anticipated defenses. A federal defense does not count for federal question jurisdiction, even if it is important.
What is the requirement of diversity jurisdiction?
The case is between citizens of different states, or citizens of a state and a foreign country AND the amount in controversy exceeds $75,000. The diversity must have existed at the time the complaint was filed or if removed, at the time of removal
What are two situations that cannot use diversity jurisdiction, even if the requirements are otherwise met?
probate and domestic relations (divorce, alimony, custody, child support) actions cannot be brought in federal court under diversity jurisdiction,
-this is because states have a strong interest in these substantive areas and are more qualified to deal with the constant judicial involvement these types of cases require
What does complete diversity mean?
all plaintiffs have different citizenship from all defendants
What are exceptions to the general rule requiring complete diversity in federal cases?
minimal diversity (when any plaintiff is diverse from any defendant) is permitted:
- under the federal interpleader act
- for class actions with more than 100 class members and the claims worth is more than $5 mil [Class Action Fairness Act]
- for interstate mass torts if at least 75 people have died in one accident (e.g., a plane crash)
What determines citizenship of a person?
the state or country of domicile; a person can only have one legal domicile at a time; a corporation can have multiple citizenships simultaneously
What is domicile?
residence with an intent to remain indefinitely
What is the general rule of citizenship of the representative party and the exceptions?
the citizenship of the representative party controls. The exceptions are in litigation involving decedents and minors/incompetent persons, the subject’s citizenship controls
Where is the citizenship of a class action located?
in a class action, citizenship is based on the named or representative parties
Where is a corporation’s citizenship located?
1) the place where the corporation is incorporated
2) the place where the corporation has its principal place of business (“the nerve center” where the executive offices are located) NOT WHERE THE COMPANY PRIMARILY CONDUCTS BIZ
Where is the citizenship of a partnership or unincorporated association (e.g., trade associations, unions)?
citizenship is EVERY STATE in which its members are citizens
What is the general rule regarding coming up with the amount in controversy?
Any good-faith allegation will suffice. Whether the plaintiff actually recovers $75,000 is not relevant. A case will only be dismissed when it appears to be a legal certainty that the AIC will not be met
What is aggregation?
adding up smaller claims to exceed $75,000 (AIC)
What is the aggregation rule between one plaintiff and one defendant?
the plaintiff can add up all claims, regardless of whether they are related
What is the aggregation rule between one plaintiff and multiple defendant?
the plaintiff may not aggregate claims to get to the AIC. Claims against EACH D must total more than $75,000
What is the aggregation rule between multiple plaintiffs and one defendant?
the plaintiffs may not aggregate claims against the defendant. Each plaintiff must seek more then $75,000 from the defendant. However, if the multiple Ps are enforcing a single title or right in which they have a common or undivided interest aggregation is ok.
If the defendants are jointly liable, they are treated
as one defendant. Thus, if plaintiff sues two defendants on a theory of joint
liability, seeking a total of $75,001, the AIC requirement is satisfied.
o
What is removal and what is transfer?
Removal is moving a case from state to federal court; transfer is moving a case from one federal court to another federal court
What is the general rule for removal?
removal is proper ONLY if the case could have been brought originally in federal court due to SMJ. Further, all the defendants LISTED IN THE COMPLAINT must agree to remove.
+Only discuss SMJ on an essay question as this is the key concern in removal
Only defendants may remove.
If there are multiple defendants seeking removal, then ALL the defendants must consent to removal within 30 days of service. It will be ineffective if not all agree
What is the key question in removal?
Ask: If the plaintiff had chosen to sue in federal court in the first place, would the federal court have had subject matter jurisdiction?
When is removal based on diversity jurisdiction proper?
1) there is complete diversity
2) AIC is met
3) the action is brought in a state in which no defendant is a citizen
Removal must occur within one year of the commencement of the action in state court, unless
the plaintiff acted in bad faith to make the case non-removable.
Ex: If the plaintiffs joins a non-diverse defendant, waits a year, and then dismisses the non-diverse defendant, the other defendants can then seek removal if all of that was a ploy to defeat diversity.
What happens when the removal notice is filed?
the state court’s jurisdiction ends instantly and automatically
What does the plaintiff do if the plaintiff disagrees with the removal because they believe it is improper?
the plaintiff can file in federal court a petition for remand
What is supplemental jurisdiction?
a federal court with subject matter over a case can hear additional claims over which the court would not independently have jurisdiction if ALL the claims constitute the same case or controversy
What does it mean for claims to constitute the “same case or controversy”?
the claims arise out of the same common nucleus of operative fact. Basically, all the claims arise out of the same transaction or occurrence
What does 28 USC S. 1367 do?
it allows, but does not require, the court to apply supplemental jurisdiction
Does a counterclaim in a diversity action have to meet the AIC?
if the counterclaim is compulsory, it can get in regardless of the amount.
If the counterclaim is permissive, it cannot get in if it fails to meet the AIC requirement
What is a cross-claim?
A claim by a co-party (e.g., a plaintiff against another plaintiff).
What is the requirement for a cross-claim?
It must arise out of the transaction or occurrence
What happens to other diverse plaintiffs if the claim of one diverse plaintiff against a single defendant satisfies the jurisdictional amount?
The other diverse plaintiffs who have related claims against the defendant can also be heard even if the claims do NOT satisfy the jurisdictional AIC minimum
Supplemental jurisdiction in diversity cases does not allow you to join a non-diverse defendant or a non-diverse plaintiff.
Basically, you cannot use supplemental jurisdiction as an end run around the compete diversity requirement
What are the questions you must ask yourself when facing a PJ question?
1) Has the basis for exercising PJ over an out-of-state defendant been authorized by statute or by rule of court?
2) Is personal jurisdiction permitted by the due process clause of the US constitution?
What is the standard by which a defendant waives any objection to personal jurisdiction?
substantial participation on the merits; this is basically anything beyond just challenging personal jurisdiction
What are the three types of personal jurisdiction?
1) in personam
2) in rem
3) quasi
What is the constitutional requirement of in personam jurisdiction?
due process requires minimum contacts between the defendant and the forum state
Ask: would it be consistent with traditional notions of fair play and substantial justice to sue the defendant here?
How do courts assess whether there are minimum contacts?
assess whether the defendant has purposefully availed himself of the benefits and protections of the state such that it is reasonably foreseeable that his activities in the forum state subject him to being haled into court there
What are the ways to attain personal jurisdiction?
[CDP minimum contacts]
- consent (express/implied)
- domicile
- physical presence in state when served
- minimum contacts (provided there is a state long-arm statute)
+PJ can be established through a D’s agreement to a forum selection clause
Where does general in personam jurisdiction apply to corporations?
a corporation’s citizenship is where the corporation is essentially “at home”
- state of incorporation
- principal place of business
What are the four types of service the federal rules always allow?
MILD
1) for persons in foreign countries, service can be made by registered Mail with return receipt requested (generally not accepted in the US unless state law allows it)
2) In-hand personal delivery;
3) Leaving the summons at the defendant’s dwelling or usual place of abode with a person of suitable age and discretion;
4) Delivery of the summons to an authorized agent
+Service must be done within 90 days after the plaintiff’s complaint is filed (except if the D is in a foreign country)
+leaving the summons with a teenager is usually ok
+the summons must be left with a resident, not someone just visiting
+It cannot be left at the person’s office
Where is federal venue proper?
1) where any defendant resides, but ONLY so long as all defendants reside in the same state; or
2) where the claim substantially arose or the property at issue is located; or
3) if neither of the above, any district where the defendant is subject to personal jurisdiction has venue
For venue purposes, where does a business entity reside?
any business entity (with a capacity to sue or be sued) resides in every district in which personal jurisdiction exists if the district were a state
For a case begun in state court and removed to federal court, venue is automatically proper in the federal district where the state court sits, even if that federal district would not have been proper originally.
o
What is the general rule for transfer from one federal court to another?
transfer can only happen to a district with proper venue.
There is an exception that allows transfer to a district without proper venue when ALL parties agree
What happens when a case is filed in a district with proper venue and then it is transferred to another district?
the law of the original forum controls
What happens when a case is filed in a district without proper venue and then it is transferred to another district?
the law of the new forum controls
What is the general Erie rule?
In a diversity case, a federal court applies state substantive law.
Anything covered by the FRCP is deemed “procedural” for Erie purposes so federal law applies, even if the substance of the claim is governed by state law
What are the twin aims of Erie?
to avoid forum shopping; and to avoid the inequitable administration of justice
What happens if the choice of the procedure would be outcome determinative (change the result)?
the federal court should usually apply state law to prevent forum shopping
The role of the jury in federal court is entirely controlled by federal law
o
When do federal courts make federal common law?
ONLY when they encounter important federal interests that are not covered by the statute
In determining applicable state law, how do federal courts treat state court decisions when the highest state court has not ruled?
The federal court gives respectful attention to the decisions of lower state courts, but is not bound by their decisions
What is a reply?
A pleading by the plaintiff to answer a counterclaim
What are requirements of a complaint?
SPICS
- a Short and Plain statement showing the claimant is entitled to relief and the court’s subject matter jurisdiction;
- Identification of the parties;
- a Claim for the relief sought by the pleader; AND
- Signature of the plaintiff/attorney
What is a motion for judgment on the pleadings?
When the pleadings agree entirely on the facts and only the law is in dispute
What is a motion to strike?
A motion to
- delete from a pleading scandalous or prejudicial matters that are NOT relevant to the case at hand
- strike a legally invalid defense
+It cannot be used to strike immaterial claims
+It must be mede before responding to the pleadings or within 21 days after being served with the pleading
The failure to respond to an allegation constitutes admission
o
What are the prerequisites for a federal class action?
CANTT
- commonality (common questions of law or fact)
- adequacy of representation
- numerosity
- typicality
- type of class
What is the home-court advantage rule?
Removal from state to federal court is not allowed when
1) SMJ arises from diversity jurisdiction and
2) a defendant is a citizen of the state where the case was filed
Ex: Diversity case filed in CA (NV vs. CA Def) is removed to CA. This violates this rule
+When a defendant asserts a counterclaim, this does not transform them into a plaintiff for the purposes of this rule
+This does not apply when SMJ relies on FQ
When must the defense of personal jurisdiction be raised by the defendant?
- The pre-answer motion or answer, whichever occurs first.
- an answer amended without the court’s permission within 21 days after the original answer was served
What must be included in the answer?
1) admissions and denials
2) motions that have not been waived
3) affirmative defenses
4) compulsory counterclaims
When does a federal court have SMJ over a class action?
1) when the action arises under the U.S. constitution, a treaty, or federal law; OR
2) when the NAMED opposing parties are diverse and the amount in controversy for ANY named plaintiff’s claim exceeds $75,000
What must the movant show for summary judgment to be granted?
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law`
How does a trial court handle a reviewing a motion for JMOL?
1) view the evidence and draw all reasonable inferences in favor of the nonmovant
2) disregard any evidence favorable to the movant that the jury need not believe, and
3) not consider the credibility of witnesses or the weight of evidence
What is the standard of appellate review for a trial court’s discretionary rulings (e.g., whether to admit evidence)?
abuse-of-discretion. This means that the appellate court will only reverse the decision if it was clearly arbitrary or unreasonable
What are the three things considered in a minimum contacts analysis?
MRF
1) minimum contacts with the forum state to see if the D has purposefully availed himself of the benefits and protections of the state such that it is reasonably foreseeable that his activities in the forum state subject him to being haled into court there
2) relatedness of claim to contact with forum (either specific or general jurisdiction may apply)
3) fairness factors
What does it mean to have general jurisdiction?
The defendant is essentially at home in the state due to systematic and continuous contacts
What does a federal court do when it is unclear whether the law is substantive or procedural?
two tests
- [primary test] outcome determinative test: an issue is substantive if it substantially affects the outcome
- [for torts] balance of interests test: the federal interest in having the federal law applied is balanced against the state interest in having the state law applied. If the state has a greater interest, the law is substantive
Generally notice pleading only requires stating enough facts to support a plausible claim. However there are some claims that must be pled with specificity including:
MS. F
fraud, mistake, special damages
+For mistake or fraud the D’s mental state may be alleged generally BUT the complaint must state with particularity the circumstances giving rise to the claim (e.g., specifying the time, place, nature of the alleged fraud)
What is permissive joinder?
a party may be joined to an existing case if the claims arise from the same transaction or occurrence AND raise at least one common question of fact or law. There still must be SMJ
+Ex: Two pregnant women sue their employer for discrimination under the same federal statute for the same reason that they were pregnant (same occurrence).
When is a party a “necessary party” for purposes of joinder?
CR I MIO
- The court cannot provide Complete Relief without the necessary party; or
- the absent party’s Interest will be harmed if he is not joined; or
- the absent party is subject to Multiple Inconsistent Obligations
When must a necessary party be joined?
the court has PJ over the party and joinder does not destroy diversity
What if a necessary party cannot be joined? What does the court consider?
The court will consider if 1) there is an alternative forum available, 2) assess the likelihood and extent of prejudice to the parties, 3) whether the court can shape relief to avoid the prejudice
The court will either dismiss the case or proceed with the case
it is ok for venue to be improper for an impleaded defendant
o
What is intervention?
when a nonparty claims an interest in the pending lawsuit and disposition in his absence will impair his rights
What is interpleader?
an action where one holding property (the stakeholder) forces all potential claimants into a single lawsuit to avoid multiple and inconsistent litigation
What are the requirements of statutory interpleader?
[remember S for soft requirements]
- one claimant must be diverse from one other claimant
- the AIC must $500 or more
What are the requirements of RULE 22 interpleader?
[Remember R for rigorous requirements]
- the stakeholder must be diverse from every claimant
- the AIC must exceed $75,000
What is the key requirement of a compulsory counterclaim?
the counterclaim must arise from the same transaction or occurrence as the plaintiff’s claim
When is supplemental jurisdiction available for counterclaims?
compulsory: supplementary jurisdiction is present
permissive: supplementary jurisdiction IS NOT present and therefore there must be an independent basis for SMJ
What are the 3 types of class action that a federal class action must fit into?
1) prejudice: class treatment is necessary to avoid inconsistent results
2) injunctive or declaratory relief is sought
3) questions of law/fact common to the class predominate over questions affecting individuals (and a class action is a superior method to resolve the issue)
What are the 3 types of mandatory disclosure in discovery, according to FRCP 26, even if the opposing party does not request the information?
PIE like you give this as a gift before litigation
1) pretrial disclosures
2) initial disclosures that supply information about disputed facts
3) expert testimony
What is a deposition?
A recorded examination of a witness. Answers are oral.
What is an interrogatory?
Written questions directed at another PARTY. The response is within 30 days and must be answered in writing under oath.
What are grounds for a new trial?
AMEND
1) judgment is Against the weight of evidence
2) prejudicial Misconduct
3) prejudicial Error (e.g., erroneously admitting evidence)
4) New evidence (that could not have been obtained for the trial through due diligence
5) excessive Damages or inadequate damages
+A party has 28 days from the entry of final judgment to move for a new trial
What is the standard of appellate review for a matter of law?
de novo
What is the standard of appellate review for a question of fact determined by a judge? Jury?
clearly erroneous for judges; for juries the appellate court will view the facts in the light most favorable to the jury’s verdict and ask whether a reasonable jury could have reached the same conclusion
What are the requirements of res judicata (claim preclusion)?
[SCM]
1) the Same plaintiff and same defendant were parties (or privies [successor in interest]) in the past and present case
2) the same Claim (cause of action) is asserted in the past and present case
3) there is a valid final judgment on the Merits
What are the requirements of collateral estoppel (issue preclusion)?
[SAFE (issue)]
1) [Same party] it is being used against someone who was a party (or in privity with a party) in the past suit
2) the same issue was Actually litigated
3) there is a valid Final judgment on the merits
4) the issue was Essential to judgment
5) Mutuality rule
Traditional: the party asserting it was a party (or a privy)
CA: a “stranger” to the past case can assert it if fair
The failure to file proof of service does not affect the validity of the service
o
What does the court do when faced with a motion to dismiss for failure to state a claim upon which relief can be granted [12(b)(6)]?
The court considers whether the complaint fails to assert a valid legal theory of recovery or fails to include sufficient facts. Courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff’s favor, and view the pleading in the light most favorable to the plaintiff.
What happens when a case is brought under diversity jurisdiction, but one of the parties fails to meet the AIC?
the party that fails to meet the AIC can be included via supplemental jurisdiction, so long as there is a common nucleus of operative fact
What is the standard for reviewing a motion for a judgment as a matter of law (directed verdict)?
The court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party. It may not consider the credibility of witnesses or evaluate the weight of the evidence, and it must disregard all evidence favorable to the moving party that the jury is not required to believe.
What are the requirements to settle a class action?
1) if the proposed settlement would be binding on all class members, the court holds a hearing to determine if it is fair, reasonable, and adequate
2) notice must be given to all class members to permit opting out
3) approval of the court
What is the bulge rule?
A federal court has personal jurisdiction over a party who is
- added to the suit through impleader or required joinder AND
- served with process within 100 miles of the federal court where the suit is pending
What are the special rules for when venue is proper?
- foreign resident: any judicial district
- Federal Tort Claims Act: where P resides / where act/omission occurred
- foreign government: where D resides / where a substantial part of the accident occurred
- federal official sued in official capacity: where D resides / where substantial events occurred / where P resides (if no real property involved)
What happens if after a jury returns a verdict, a party or the court request a poll?
If there is a lack of unanimity or assent by the number of jurors to which the parties stipulated, the court may order the jury to continue deliberations, or it may order a new trial.
When can a motion for judgment as a matter of law be used to remove a case after an adverse verdict?
within 28 days after the entry of judgment
[I twenty H8 this verdict!]
What law is applied when a claim arises under federal-question jurisdiction?
federal courts must apply federal law, including federal common law, to both procedural and substantive issues
When may a party secure a jury trial on any triable issue (a LEGAL CLAIM with an AID over $20)?
1) by serving the other parties with a written jury trial demand no later than 14 days after the last pleading directed to that issue is served and
2) by filing the jury trial demand with the court within a reasonable time after service of the demand.
—
+an equitable claim is not entitled to a jury
+ the 7th Amendment right to a jury trial in civil cases does NOT apply to state courts
+the timing of a demand for a jury trial can be ANY TIME before 14 days after the last pleading is served
What are the situations in which a party may NOT conduct an oral deposition without the court’s leave or the parties’ stipulation?
1) the deposition exceeds the 10-deposition limit
2) the deposition is sought before the initial planning conference
3) the deponent was already deposed in the case.
What is required for a federal court to obtain SMJ over a class action under the Class Action Fairness Act?
1) the class contains 100 members,
2) at least one class member is diverse from at least one defendant (minimal diversity), and
3) the amount in controversy of the aggregated claims exceeds $5 million.
When must a party respond to an amended pleading?
1) when the court orders (priority)
2) the time that remains to respond to the original pleading, *
3) 14 days after service of the amended pleading*
* whichever comes first
When is a jury-instruction error preserved for appeal?
when a party timely objects to the instruction on the record and states the grounds for the objection. An objection is timely if it is made promptly after learning that a jury instruction has been or will be given OR that a request has been refused.
Parties must generally make initial disclosures of all documents and items that THE PARTY POSSESSES and may use to support a claim or defense.
If documents or items are in the possession of a nonparty, a party may issue a subpoena to compel the nonparty produce those documents or items.
Before an appeal is docketed in the appellate court, a district court can correct a mistake in a judgment, order, or other part of the record on its own initiative or pursuant to a party’s motion.
But after an appeal has been docketed, the district court can correct the mistake only with the appellate court’s leave.
What are grounds for extraordinary relief from final judgment within one year of the entry of a final judgment?
1) mistake, inadvertence, surprise, inexcusable neglect (w/n 1 year)
2) newly discovered evidence (w/n 1 year)
3) fraud, misrepresentation, misconduct (w/n 1 year)
When are claims identical for purposes of res judicata?
1) arise from the same transaction, occurrence, or series thereof and
2) could have been raised in the first action.
Generally, a failure to deny an allegation generally results in the allegation being admitted and conclusively established. What is an exception to this rule?
The failure to deny allegations related to the amount of damages in an answer does not deem them admitted and conclusively established.
When determining choice of law and it is unclear whether the issue is substantive or procedural, what question must be asked?
does federal law directly address this issue
In a choice of law analysis and the federal law DOES NOT directly address the issue, what is the test?
state law applies if it is outcome determinative AND there is no countervailing federal policy interest
What is an example of an unclear issue in choice of law analysis?
the deadline to commence an action under a statute of limitations
When is a state law outcome determinative?
If failing to apply state law would result in:
- forum-shopping
- inequitable administration of the laws
When can a court order a physical or mental examination of a party?
1) that party’s condition is in controversy,
2) the motion is based on good cause, and
3) the order provides notice specifying the time, place, manner, conditions, and scope of the exam, as well as the person who will perform it.
+This is done by the court where the lawsuit is pending. NOT the court where the plaintiff lives.
When may a federal court impose reasonable sanctions (i.e., the punishment must fit the violation) on an attorney or party for noncompliance with a pretrial conference?
- failure to attend a pretrial conference
- failure to participate in good faith, or was substantially unprepared to participate, in the conference
- failure to obey a pretrial order
+As a sanction, the court is permitted to strike an affirmative defense by the violating party
When is it appropriate to motion for a JMOL?
ONLY after the nonmovant has had the opportunity to present evidence to establish that claim or defense (after opening statements) AND before the case is submitted to the jury
A P fails to prosecute the case or comply with a rule or court order. What can the D motion for to end this litigation and prevent future litigation on this claim?
involuntary dismissal. If the motion is granted, the case will be dismissed with prejudice (unless the court states otherwise) to prevent the plaintiff from suing the defendant on the same claim in the future.
What are the means that a party can strike potential jurors
- 3 peremptory challenges (for any reason except race, ethnicity, gender) (the court MAY view multiple Ps or Ds as one part)
- unlimited challenges for cause (unable to serve as a fair and impartial finder of fact)
Ex: At voir dire, the prosecutor exercised all of his peremptory challenges to exclude persons under the age of 30 from the jury. This is ok.
If the court orders a reply, the plaintiff may be ordered to respond to any allegation in the answer—including an affirmative defense (e.g., novation). Any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff.
But when a reply is not required, then the plaintiff is deemed to deny any allegation in the defendant’s answer
In an action with multiple claims or multiple parties, and the judge enters final judgment of only some of the claims or parties, when are these decisions immediately appealable?
The default rule is that the court order is not immediately appealable. However, if the court expressly states that the order is immediately appealable, then they can be appealed.
When a third party is impleaded into a case, when can the plaintiff assert his third-party claim against the third-party D?
the claim must:
- arise out of the same transaction or occurrence that is the subject matter of the P’s claim against the D in the original claim AND
- the third-party claim itself has original SMJ
+This is often a more efficient means to join a 3rd party than filing a motion to join the 3rd party
What are the three ways process can be served?
1) following the rules of the state where the court is located or where service is made
2) delivering the complaint to the defendant personally (or authorized agent)
3) leaving the summons and complaint at the defendant’s dwelling with a resident of suitable age and discretion
Generally, appeal is only allowed after final judgment. What are the exceptions in which there is appeal as a matter of right?
In Certain Circumstances, An Appeal Can Be Made Prematurely
- Injunction (PI & PI equivalent TRO that has been extended beyond 14 days)
- Certification
- Class action certification [discretionary]
- Appointment of receiver
- Admiralty case
- Collateral-order doctrine
- Bankruptcy cases (certain order)
- Mandamus (petition for writ)
- Patent infringement order
What are some factors that are used in determining whether the frequency or extent of discovery is disproportionate to the needs of the case?
ARAB II
- the Amount in controversy
- the parties’ Resources
- the parties’ relative Access to relevant information
- whether the Burden or expense of the proposed discovery outweighs its likely benefit
- the Importance of the discovery in resolving the issues
- Importance of the issue at stake
What happens when it is unclear if state or federal law should apply AND there is a federal law directly addressing the issue?
Federal law applies if the law is arguably procedural AND does not modify a substantive right
Who can the doctrine of claim preclusion (collateral estoppel) be asserted against?
a party to the first action because they had an opportunity to fully and fairly litigate their claims/defenses
A juror must participate in the verdict except in what circumstance?
the juror is excused by the court for good cause (e.g., illness, emergency, misconduct)during trial or after jury deliberations have begun
What does FRCP 11(b) do and when can a court impose monetary sanctions for a violation?
FRCP 11(b) covers representations to the court. Lawyers are required to certify that the papers were formed after an inquiry reasonable under the circumstances and it is not for frivolous/harassing purpose
Sanction proceedings can be initiated (1) by a party’s motion or (2) on the court’s own initiative—so long as the judge issues an order to show cause.
Ex: A judge sanctions a lawyer after the complaint just says the federal court “has subject matter jurisdiction.” Even if the judge accepts an amended complaint with the grounds for SMJ, the sanction is still permitted.
+Sanctions cannot be imposed on a party represented by an attorney. It can be imposed on the attorney
When a party is impleaded into the case, the court must have original subject-matter jurisdiction or supplemental jurisdiction over the third-party claim
o
What can a deposition be used for?
Depositions can be used against any party who was present at or had reasonable notice of the taking of the deposition (1) to impeach or contradict the testimony given by the deponent at a hearing or trial or (2) for any other purpose permitted by the Federal Rules of Evidence.
What is the requirement regarding jury size and unanimity?
A jury verdict must be unanimous and returned by a jury of at least 6 (but no more than 12) members unless the parties stipulate otherwise.
If the parties agreed to a nonunanimous verdict, it is ok if the jury decides with a balance of something like 4-3
When will an amended complaint “relate back” to the date of the original complaint to include a new D?
1) the same occurrence is at issue as that in the original complaint,
2) the new party received notice of the suit within 90 days after the original complaint was filed
3) the new party knew or should have known that it would have been sued but for a mistake about its identity.
-The proper focus when applying the third element is on the defendant’s knowledge, rather than on information in the plaintiff’s possession. Although the latter may be relevant, it is not dispositive. Krupski
What happens when an appellate court chooses to hear an appeal from a district court that grants or denies class certification?
The district court proceedings are stayed pending the appeal ONLY when ordered by the district court or the appellate court.
In diversity jurisdiction, can the court exercise supplemental jurisdiction over another claim that would destroy complete diversity of citizenship?
NO
In CA Superior Court, what are the three SMJ classifications of cases?
- small claims: AIC is 10k or less for actions by individuals; 5k or less by other parties
- limited: AIC is 2.5k or less
- unlimited: AIC is more than 25k
How does a cases in CA court get reclassified SMJ?
automatically when the AIC changes
What happens if a CA case’s SMJ is misclassified?
Superior Court keeps jurisdiction through two options:
- Reclassify the case from unlimited to limited if the verdict will necessarily by 25k or less
- Reclassify the case from limited to unlimited if the verdict might be above 25k
What is the test in CA state court for obtaining PJ over an out of state defendant?
Ask:
1) Does the D have sufficient minimum contacts with the forum state. In other words, did the defendant purposefully avail herself in a substantial way such that she should have anticipated being sued in CA?
2) Would exercising jurisdiction offend fair play and substantial justice? (this is a discretionary call based on CA’s interest/policy, judicial efficiency, vs. the burden on the defendant
The same DP standards apply (i.e., minimum contacts) if CA wants to exercise in rem, quasi in rem, or attachment jurisdiction over property belonging to an out-of-state D.
o
CA DOES NOT follow the majority rule that nonresident defendants are immune from personal jurisdiction if they come here temporarily to participate in a judicial proceeding
Essentially, this punishes someone for being a good litigant
In CA, where is venue appropriate?
in the superior court of the county where the claim arose OR where any D resides
In CA, where is venue appropriate for “transitory” actions (where the claim could have taken place anywhere)?
In the county where any D resides when the action commences. If no defendant resides in CA, then in any county in CA.
Contract exception to the general “transitory” action rule, in CA court?
In a contract action, venue is proper in the county where the contract was executed or performed
Personal injury exception to the general “transitory” action rule, in CA court?
In a personal injury or wrongful death action, venue is proper in the county where the injury occurred
