Civil Procedure Flashcards
What is the two step analysis for personal jurisdiction?
In what courts does this analysis apply
Step 1) PJ must fall within a state statute
Step 2) PJ must satisfy the Constitution
This analysis applies in state and federal courts
What is a long arm statute? What are the two drafting styles?
A statute granting PJ over nonresidents who do or cause certain things within the state.
May go to the fund extent of the Constitution or list a bunch of activities
What is the core question of the Constitutional step in the personal jurisdiction analysis?
What do you consider to answer that question?
Does the defendant have minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice?
Consider 1) Contacts 2) Relatedness 3) Fairness
When evaluating the Contacts factor in the constitutional step in the PJ analysis, what do you consider?
Purposeful availment and Foreseeability
What do you consider in evaluating purposeful availment under the contacts factor in the constitutional step of the PJ analysis?
What do you consider in the foreseeability element?
Are the contacts from D’s purposeful availment? Can purposefully avail without ever setting foot in the state by causing an effect in the forum.
e.g.
Market a product in the forum
Create a market in a forum (by servicing product, accepting returns, etc)
Use roads in a forum
establish domicile in a forum
travel in the forum
send tortious email into the forum
maintain an interactive website within the forum (if targeting the forum’s customers)
Is it foreseeable that the defendant could get sued in the forum?
When evaluating the Relatedness factor in the constitutional step in the PJ analysis, what do you consider?
Does the contact that is the subject of Plaintiff’s claim “arise from or relate to” D’s purposeful contact with the forum?
~ It definitely “arises out of” D’s contact if D’s contact caused harm to P.
~ Even if D’s contact did not cause harm to P, if D has substantial contact with the forum, relatedness is satisfied if the claim merely “relates to” D’s contacts with the forum. BUT if a tort is committed in another state under the performance of a contract formed in a state, the tort does not arise out of the state where the contract is formed (remember the airline ticket essay)
If yes, specific jurisdiction
If the claim does not arise out of or relate to D’s contact with the forum state, what is the other way to satisfy the relatedness prong of the PJ analysis?
General PJ. If D is at home in the forum state, D can be sued there regardless where the claim arose
Where is a human always “at home” for general personal jurisdiction purposes?
Where they are domiciled
If D is served with process in the forum state, what kind of personal jurisdiction does the court have over them?
General personal jurisdiction
Where is a corporation always “at home” for general personal jurisdiction purposes?
In the state where it is incorporated and the state where it has its principal place of business
When is the Fairness factor in the constitutional step of the the PJ analysis used? What do you consider when it is used?
The fairness factor only applies in specific jurisdiction
Look at:
1) Burden on the defendant and the witnesses (travel is not a problem unless D can show that it puts her at a severe disadvantage - wealth/poverty not considered)
2) State’s interest (in providing a forum for its residents to protect themselves against out of state wrongdoers)
3) P’s interest (might be injured and would find it difficult to go to D’s home state)
(+efficiency and public policy)
What is the constitutional standard for proper notice?
Notice must be “reasonably calculated under all the circumstances to apprise interested parties of the action”
What are the two documents required to be delivered for notice? What are they known together as?
Need (1) a summons (court notice of the suit and timing for response) and (2) copy of the complaint
Together they are called “process”
Who can serve process?
Anyone over 18 who is not a party to the action (does not have to be appointed by the court)
The party’s lawyer is not a party and thus can serve process
When must a defendant be served with process?
within 90 days of the filing of the complaint (but the period may be extended for good cause)
How can process be served on an individual in the United States?
1) for personal service, process is given to D personally anywhere
2) Substituted service at (a) D’s usual place of abode (2) with someone of “suitable age and discretion” (3) who resides there
3) service on D’s agent (if receiving service is in scope of agency)
4) Method permitted by the law of the state where the federal court sits or state where service is made (esp by mail)
D does not have to reside at the usual place of abode every day of the year but must be usual at that time of year, and the person given the substitute service does not have to be related to D but must live there
How can process be served on a business or organization in the United States?
1) Delivery to an officer or managing/general agent
2) Method permitted by the law of the state where the federal court sits or state where service is made
How can process be served on a minor or incompetent person int he United States?
Only by a method permitted by the law of the state in which service is to be made
(NOT ALWAYS the law of the state in which the court sits)
How can process be served on parties in a foreign country?
1) Method allowed by international agreement
2) If reasonably calculated to give notice: (a) as directed by an American court, (b) method allowed by the foreign country’s law, (c) method directed by foreign official in response to a letter rogatory (request) from an American court, (d) personal service, (e) (big one) mail sent BY THE CLERK of the American court requiring a signed receipt
How can P request that D waive service?
P mails D a notice and request to waive. Must include a copy of the complaint, two copies of the waiver form, prepaid means of returning the waiver form.
If D completes the waiver form and returns it within 30 days (60 if outside of the US), then D waives service of process. Waiver not effective until P files the waiver with the court (so for timing purposes we act as if D was served with process on the day P filed the waiver)
What legal effect does waiving service of process have on D’s ability to defend.
D does not waive any defense including lack of PJ
Can D waive or not waive service of process with no repercussions?
No. If D fails to waive and forces P to serve personally or via substitute service, D must pay the costs of service unless D can show good cause
How does P prove service of process?
What happens if fails to do this?
Process server files an affidavit (sworn statement under oath) with the court detailing how service was made
If the process server fails to file the report, the service is still valid
When is D immune from service of process even though they are physically present in the forum state?
If D is in court in the state defending a different action
What does service of documents other than process look like?
Less formal. Delivery or mailing is fine. Email is also fine if the parties agree.
Service is deemed complete when mailed, but add 3 days to the response time if mailed
Where can process be served for federal court?
In the state in which the federal court sits and outside that state IF STATE LAW ALLOWS. It’s the exact same analysis in state and federal court.
What cases do state courts have SMJ over?
All cases unless it’s exclusive federal jurisdiction (patent infringement, bankruptcy, federal securities and antitrust claims)
What are the three ways that a federal court has SMJ?
1) Federal Question
2) Diversity
3) Supplemental
What happens if parties consent to a court’s lack of SMJ and judgment is entered by that court?
Consent makes no difference. The judgment is void
What are the two requirements for diversity cases?
1) COMPLETE DIVERSITY between citizens of different US states or between citizen of a US state and citizen of a foreign country (MEMORIZE THIS PHRASING not good enough to have two foreigners)
2) the amount in controversy exceeds $75K
When is diversity judged as of in the procedure of the case?
Judged as of when the case is filed
What is the mechanical process for determining complete diversity?
Write states of all P’s and states of all D’s, draw a line through the V and if there is the same state on both sides of the line, it’s ruined.
Two defendants from the same state is not a problem.
Is a lawful permanent resident of a state (green card holder) who is not a citizen considered to be a citizen of that state for diversity/alienage jurisdiction purposes?
NO (but might get alienage jurisdiction as an alien)
What is the rule or diversity jurisdiction with green card holders?
By STATUTE, diversity/alienage jurisdiction is withdrawn if the greencard holder is from the same state as a party on the other side of the case
What is the status of a US citizen living abroad for purposes of alienage/diversity jurisdiction?
The US citizen living abroad is NOT an alien and is NOT a citizen of any US state, so if US citizen abroad sued by a foreign or domestic plaintiff, there is no alienage (because no citizen of a US state) and no diversity (because the parties are not citizens of different US states)
In what state is a US citizen a citizen of that state?
In the state where the person is domiciled. Can only have one domicile and every citizen has a domicile. Domcile is retained until changed. Domicile is changed based on:
1) physical presence in the new domicile
2) subjective intent to make that place your home for the indefinite future (judged by all relevant factors)
In what state is a corporation a citizen of that state?
A corp is a citizen of
1) any state/country of inc
2) one state/country in which it has PPB
What is the corporation’s PPB?
The place where the corp’s managers direct and control business activities (the “nerve center”)
In what state is a partnership or unincorporated association a citizen of that state?
An unincorporated association takes on the citizenships of its members
In what state is a limited partnership a citizen of that state?
Wherever a general or limited partner lives
In a suit against a decedent, a minor, or an incompetent person what state matters for diversity?
Even though you have to sue them through a representative, it is the decedent/minor/incompetent person’s citizenship that matters.
In a class action whose citizenship is used for diversity purposes?
the named class representatives
What is the minimum amount in controversy for diversity jurisdiction?
Must EXCEED 75000
What is included in the amount in controversy?
Only the claim itself - not litigation costs of expenses.
Is interest included in the amount in controversy calculation?
Only if it is part of the claim.
Interest on the claim from delay in payment from the litigation is not part of the claim
Interest that is part of the loan agreement or contract is included in the claim
How is the amount of the claim estimated for purposes of the amount in controversy?
Whatever the plaintiff claims in good faith unless it is clear “to a legal certainty” that she cannot recover more than 75000
Can claimed punitive damages be added to the amount in controversy?
Yes (as long as the COA allows for the collection of punitive damages
What are the aggregation rules for amount in controversy in 1v1 context
single plaintiff can aggregate all of her claims against a single defendant - REGARDLESS if they are related
What are the aggregation rules for amount in controversy in the 2v1 context?
What are the aggregation rules for AIC in the class action context?
CANNOT aggregate the claims of multiple plaintiffs against a single defendant. UNLESS they seek to enforce a single right in which they have a common or undivided interest (if the claims are separate, no aggregation)
In a class action, one class rep’s claim must exceed $75K and the court will have supp j over the remaining
What are the aggregation rules for amount in controversy for a joint claim?
Use the total value of the joint claim - the number of parties subject to the joint claim is irrelevant
How is seeking equitable/injunctive relief translated into an amount in controversy?
Must meet at least one of the below tests:
1) P’s Viewpoint: If granted, does the relief requested have a value of >75K to P?
2) D’s Viewpoint: If granted, will the relief requested have a cost to D of >75K?
When do federal courts decline diversity jurisdiction EVEN IF the amount in controversy and diversity/alienage requirements are met?
Divorce, alimony, child custody, actions to probate an estate.
Be precise - not all family related cases are excluded
Can a party scheme to create diversity by assigning their claim to another party for purposes of collection?
Can a party change their state of citizenship after a COA has arisen and still get diversity
No, scheme will be ignored and no diversity
Yes, as long as it’s a genuine change of citizenship
When does a court have federal question jurisdiction?
Plaintiff’s CLAIM must “arise under” federal law and be on the face of P’s “well pleaded complaint.” Look only at the CLAIM.
P must be enforcing a federal right
Is a defense involving federal law sufficient to get federal question jurisdiction?
NO - plaintiff’s claim must arise under federal law.
P must be enforcing a federal right
How can a federal court undo D’s improper removal of a case from state to federal court?
The federal court can “remand” the case back to the state court
When can a defendant remove a case to federal court?
D can remove an action to federal court if P could have originally filed an action there.
What are the mechanics of D removing a case to federal court?
D must do 3 things:
1) file a notice of removal in the FEDERAL COURT stating the grounds for removal (ie grounds for SMJ) and attach all documents that were served on them in the state action.
2) D must “promptly” serve a notice of renewal on adverse parties
3) D must file a copy of the notice of removal in state court
How long does D have to remove a case to federal court?
30 days after service (not filing) of the first paper that shows the case is removable
Not always the service of process.
If there is more than one defendant, who has to agree to the removal?
ALL OF THEM - must be unanimous.
They can file separate notices of removal.
What if there is more than one defendant and the earlier defendant’s 30 day removal window has already passed and a later joined defendant wants to remove. Can the earlier D join to meet the unanimity requirement?
YES - earlier D can join later D’s removal even though her own 30 day window has expired.
When can a plaintiff remove a case?
NEVER - even if there is a counterclaim and even if D agrees
What are the limitations on cases can be removed from state to federal court?
All cases where the federal court has SMJ BUT if removing based on diversity of citizenship, the case should not be removed if EITHER
1) ANY D is a citizen of the forum state OR
2) removal would be >1 year after the case was filed in state court
These limitations don’t apply in Fed Q cases or in cases where P joined a non-diverse party/concealed true AIC in bad faith to prevent removal
At the outset, a case cannot be removed to federal court because the federal court would only have diversity SMJ and one of the defendants is a citizen of the forum state. The D that is a citizen of the forum later drops out of the case. Can the case now be removed by the remaining defendants?
If D is voluntarily dismissed from the case, and the removal would occur within one year after the case was filed in state court, then the case can be removed.
Same thing works if you get rid of the one non-diverse defendant
What is the interaction of the 30 day and 1 year limitations on removal?
The one year limitation only applies to cases removed where the federal court has SMJ because of diversity of citizenship.
D has 30 days from when D learned that the case became removable (relevant order/info served on them) to remove the case (not always when case was filed) BUT D in a diversity case can never remove a case more than one year after the case is filed
What is the exception to the one year limitation on removal?
Only if D can show that P joined the non-diverse or home state D only to prevent removal
What is the venue limitation on removal?
Defendant must remove to the federal district court “embracing” the state court where the case was filed.
It does not matter if this venue would have been proper under the venue statutes.
How long does P have to move to remand the case that D has just removed?
If based on SMJ -> no time limit
If not based on SMJ -> 30 days from the filing of the notice of removal (the in state defendant limitation is not based on SMJ)
What is supplemental jurisdiction and how is it different from diversity and federal question jurisdiction?
Supplemental jurisdiction is a form of SMJ BUT Supp J gets claims into federal court and not cases.
What is the analysis in deciding if you need to invoke supplemental jurisdiction?
[it’s important to trace the steps on an essay question]
1) Must have a case with Fed Q or Diversity jurisdiction
2) Check to see if the additional claim has Fed Q or diversity jurisdiction on its own
3) Check for Supplemental jurisdiction (if no diversity or Fed Q)
3A) Common Nucleus Test
3B) P cannot use supp j to bolt a claim onto a diversity case unless there are multiple Ps and supp j used to dodge the AIC requirement
4) Consider court’s discretion to decline Supplemental jurisdiction
Does a federal court have to have jurisdiction over counter claims and cross claims?
Yes - the federal court must have SMJ over every single claim in the case
What if the $25K claim is out of the same t/o?
If the counterclaim is mandatory, it would not need to meet the AIC requirement
What is the analysis for invoking supplemental jurisdiction?
Supplemental claim shares “common nucleus of operative fact” with the claim that has SMJ. This test is always met if the claims arise from the same “transaction or occurrence” as the underlying case, but there might be a common nucleus of operative fact even if not from the same t/o.
What is the limitation on the use of supplemental jurisdiction?
P1 sues D under diversity SMJ, can P2 sue D with <75K claim and no fed Q if P1 and P2’s claims come out of a common nucleus of operative fact?
Plaintiffs cannot use supplemental jurisdiction to bolt a claim onto a DIVERSITY case UNLESS there are multiple plaintiffs and supp J is being used to help another P dodge the AIC requirement.
Defendants and other non plaintiffs may use supp j but court has discretion to decline it.
Yes, a Co-P with an insufficient AIC can use supp j to bring their claim as long as the co-p does not destroy the complete diversity
When is a court likely to decline to exercise supplemental jurisdiction?
1) state law claim is complex
2) state law issues would predominate
3) the claim with federal SMJ supporting the supp j was dismissed early in the case.
A a diversity case brought in federal court, what law applies?
3 Step in Erie Analysis
1) Is there a federal law that directly conflicts with state law? If so apply federal law b/c supremacy clause (so if there’s an FRCP and it’s arguably procedural, that’s what applies)
2) If there’s no federal law on point, apply state law if in one of the 5 clearly “substantive” categories
3) If no federal law on point and not in one of the categories, must determine if the issue is substantive according to the three balancing factors
When is a state law clearly substantive for erie purposes?
1) Conflict or choice of law rules
2) elements of a claim or defense
3) SoL
4) Rules for tolling SoL
5) standard for granting a new trial because the jury’s damages award was excessive or inadequate
What is important to remember about SoL in the erie context?
SoL are substantive for Erie purposes, so the judge applies state law SoL, but the judge must also apply state choice of law rules to determine which state law
Some states have decided from a choice of law perspective that SoL is procedural (and so its own SoL applies and not that of another state). Federal judges respect this decision from a choice of law perspective because choice of law is substantive.
What are the Erie factors to consider If there is no federal law on point and the law is not in one of the 5 clear categories?
3 Balancing Factors
1) Outcome determinative (if outcome determinative, probably substantive)
2) Balance of Interests (does either the federal or state system have a strong interest in having its rule applied)?
3) Avoid Forum shopping (if ignoring state law on the issue would increase litigation in federal court, apply state law)
True or false: Erie says there is no federal common law.
False. Erie says there is no GENERAL federal common law, so federal courts apply state substantive law for torts, contracts, property, etc. BUT federal courts can make up their own common law where there is no state law corollary (like international relations, admiralty)
What is the most important area to remember that is subject to federal common law?
Federal common law governs for claim/issue preclusion unless it’s a diversity case. In a diversity case, federal common law follows state law on claim/issue preclusion.
What is the purpose of venue?
Tells you in what federal court you should bring a case.
Where can plaintiff lay venue?
If initially filed in federal court, venue proper in any district where:
1) Residential Venue- any district where all D’s reside
2) Transactional Venue- A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located
If neither of these [rare], then can file in any district where D is subject to PJ
But remember, if the case is removed, the venue is in the federal court that embraces the state court from which the case was removed.
If all Ds live in the same state but different judicial districts within that state, where is venue proper under the residential venue route?
Residential venue is proper in any district in which one of the Ds resides
Where does a “substantial part” of a claim “arise” for purposes of transactional venue?
a substantial part of the claim might arise in more than one district.
e. g. in tort, where the defective product was made and where the plaintiff was injured
e. g. in contract, where the contract was entered into and where it was to be performed
For venue purposes do we care about where the plaintiff lives? Where the defendant lives?
We only care about where D lives - NOT where P lives.
What are the differences in the venue rules for diversity and federal question cases?
They are the same.
What venue is proper if one of the defendants lives outside of the US?
If the only defendant lives outside of the US, then venue is proper in any district, but if there is more than one D and one D lives inside the US, venue must be proper as to them.
Where does a human defendant reside for venue purposes?
Where does an entity defendant reside for venue purposes?
Human resides in the federal district where she is domiciled.
Entity resides in all districts where it is subject to PJ
When is transfer of venue proper?
When the transferee court has proper venue and PJ over the defendant without any kind of waiver by the defendant.
What is the statutory rule for transfer from a proper venue?
- If the transferor court has proper venue and D seeks transfer to another venue, court can order transfer based on the interests of justice and public and private factors (if seeking transfer to an improper venue, all parties must consent)
- Burden is on the party seeking the transfer
- This can be done at any time even after venue objections have been waived (b/c transfer is not an objection to improper venue)
Under the statutory rule for transfer from a proper venue, what factors does the court consider in evaluating a motion?
Court considers public and private to determine if the other venue is the "center of gravity" for the case: Public Factors (what law applies, what community would be burdened with jury servicesand desire to keep a local controversy in a local court) and Private factors (convenience based on where parties and evidence are located)
If a transfer of venue is granted under the rule from a court where venue was proper, what are the choice of law implications?
The transferee court must apply the choice of law rules of the transferor court (unless the transfer is to give effect to a valid forum selection clause) - this is only relevant in diversity cases
What is a forum selection clause?
A provision in which parties agree that a dispute between them will be litigated in a particular place. Can be enforced via a motion to transfer ASSUMING the forum selection clause called for litigation in a proper federal district
What law governs the enforcement of a forum selection clause?
What is different about enforcing a forum selection clause compared to an ordinary transfer out of a proper venue?
In federal court federal law governs. Federal law enforces forum selection clauses as long as they are not unreasonable. Only public interest factors are considered in the transfer. Transferee court applies its own choice of law rules
State courts might not be so deferential
What is the statutory standard for transfer of venue out of a venue that is improper?
What choice of law rules apply in this instance?
If the original district is an improper venue, the judge can transfer in the interest of justice or dismiss. (but if it’s a valid claim that’s just in the wrong venue, should probably transfer rather than dismiss)
The choice of law rules of the transferee court apply
What is forum non conveniens?
If there is another court that is the center of gravity of the case but it is not in the same judicial system.
If FNC is invoked, the transferor court will hold the case in abeyance or dismiss it so that P can then sue in the better forum. The court invoking FNC might impose conditions on the party invoking FNC like requiring them to waive service of process
What are the factors considered in invoking forum non conveniens
Another court must be available and “adequate,” but the forum will be adequate unless the plaintiff cannot get any remedy at all there (even if the remedy is much less)
The same public and private factors considered in a transfer of venue out of a proper venue INCLUDING the existence of a valid forum selection clause
Public Factors (what law applies, what community would be burdened with jury servicesand desire to keep a local controversy in a local court) and Private factors (convenience based on where parties and evidence are located)
What must be included in a complaint?
1 – grounds for subject matter jurisdiction
2 – short and plain statement of the claim showing that plaintiff is entitled to relief
3 – demand for relief sought
4 - allege sufficient facts to support a plausible claim (judge uses their judgment)
(notice how don’t have to allege grounds for PJ or venue)
What COAs require extra detail to be included in the pleading? What is the standard for the extra level of detail required?
Fraud, mistake, special damages
particularity and specificity
What are the two ways that a defendant can respond to a complaint?
1) by motion
2) by answer
How long does D have to respond to a complaint?
21 days after being served with process
If D waived service, 60 days from the date when P mailed the waiver form
What are motions?
Motions are not pleadings. They request an order of the court.
What commences an action?
Filing the complaint
What are the two rule 12 motions addressing issues of form in the pleading?
12(e) motion is a motion for a more definite statement when the complaint is so vague the defendant cannot respond (must make this motion before answer)
12(f) motion to strike asks the court to remove redundant or immaterial things from the pleading
Which party can move to strike under rule 12(f)
Either party.
For example, P might move to strike an affirmative defense from D’s answer or D might move to strike an allegation of fraud
What are the waivable rule 12(b) defenses and what’s special about them?
3Ps and a V
lack of PJ, improper venue, improper process, improper service
These are waived if they are not put in the FIRST rule 12 response (MOTION OR ANSWER)
(so if you have a 12b1 MTD for lack of SMJ without also raising PJ, you waive even if you make the PJ motion right after - amendment of answer as of right to add PJ objection works if there were no 12b motion)
What are the 12(b) defenses that can be raised later? How late can they be raised?
1) Failure to state a claim
2) Failure to join an indispensable party
Can be raised as late as at trial (but can’t be raised for the first time on appeal)
What happens if a Defendant’s rule 12 motion to dismiss is denied
Defendant must answer no later than 14 days after notice of denial
What kind of motions do 12(b) defenses serve as the basis for?
motions to dismiss
What is an answer?
The pleading where the defendant responds to the allegations to the complaint (admit or deny or state insufficient knowledge) and raises affirmative defenses
When can a defendant respond to an allegation by stating insufficient knowledge?
What is the effect of stating insufficient knowledge?
Anytime as long as the answer to the allegation is not in her control.
Effect is the same as a denial
What happens if a defendant fails to admit, deny or state insufficient knowledge as to an allegation?
The allegation is deemed to be admitted (except regarding the amount of damages)
What can be pled as affirmative defenses?
Classic affirmative defenses like SoF and self defense as well as any 12)(b) defense
What does a plaintiff have to do in response to a defendant’s assertion of an affirmative defense?
Nothing - all allegations in the defendant’s answer are deemed denied without action on the plaintiff’s part
If D fails to assert an affirmative defense in the answer, what’s the risk?
The court might treat it as a waiver
What is plaintiff’s right to amend the complaint?
P can amend the complaint once no later than 21 days after D serves their first Rule 12 response (could be motion or answer)
What is defendant’s right to amend the answer?
Can amend once within 21 days after serving the answer.
If D’s first response was an answer, D can include a forgotten rule 12(b) waivable defense or a forgotten affirmative defense in the amendment
If P or D wants to amend their pleading after the period to amend as of right, can they?
They must seek a leave of court or get the written consent of the opposing party.
Court grants if justice so requires (look at length of delay, prejudice to the other party, futility of amendment)
What is variance?
What should a party do of they notice a variance at trial.
When the evidence at trial does not match what was pleaded
If a party notices a variance at trial, they must object at trial. If the party does not object to the variance, the party may move to amend the complaint to conform to the evidence. The party can move to amend the complaint even after the verdict if the other party has not objected to the variance at trial.
What are the 4 fact patterns for amending pleadings?
1 and 2) P or D wants to amend they pleading AS OF RIGHT
3) Party wants to amend a pleading to assert a new claim after the SoL has run
4) Party wants to amend a pleading to change a defendant after the SoL has run
When does an amended pleading “relate back” and when is this important?
Relating back is important if the amendment is after the SoL has run.
An amended pleading “relates back” if it concerns the same conduct, transaction, or occurrence as the original pleading
What must be shown to amend a pleading (not as of right) to add a new defendant after the SoL has passed such that it relates back?
When is an action deemed commenced for SOL purposes?
1) [Same t/o] Amd must concern the same conduct, transaction or occurrence as the original pleading
2) [knew of suit] New D must have had such knowledge of the case that she will be able to avoid prejudice
3) [knew of mistake] New D knew or should have known that but for a mistake, she would have been named originally
*Knowledge under 2 and 3 must have come within the period for service of process (90 days after filing of the complaint)
Action deemed commenced in a Fed Q case when the complaint is filed but in a diversity case, action deemed commenced at time determined by state law
What are supplemental pleadings? When can one be filed?
Set forth things that happened after the pleadings were filed. (can add claims, details, etc)
There is no right to file a supplemental pleading, must make a motion and the court hs discretion to grant or deny
When does Rule 11 apply?
Rule 11 applies to all motions/pleadings except for discovery or when a party presents a position to the court (“continuing certification”) every time you present the position you are re certifying that Rule 11 requirements have been met
What does a Rule 11 signature certify?
Certifies that to the best of the signor’s knowledge or belief, after reasonable inquiry…
1) the paper is not for an improper purpose
2) the legal contentions are warranted by law or a nonfrivolous argument for a change of law
3) factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation
Against whom may Rule 11 sanctions be imposed? What’s the purpose?
Can be imposed against the party, the lawyer and/or the lawyers firm.
The purpose is to deter a repeat of the conduct (not to punish)
Who can suggest that sanctions be imposed?
What is required before sanctions are imposed?
The opposing party by motion OR the court itself with an order to show cause why sanctions should not be imposed.
The party about to be sanctioned must have an opportunity to be heard (regardless who raised the issue)
What kinds of punishments can be imposed under Rule 11?
non monetary sanctions (e.g. requiring the lawyer to take a professionalism class)
or monetary sanctions paid to the court (not the other party)
What is the Rule 11 safe harbor
Before bringing a motion for Rule 11 sanctions to the court, a party must serve the opposing party and the party in violation has 21 days to fix the problem and avoid sanctions, then the motion can be filed with the court.
What two things govern how many claims and parties can be added to a case (joinder)?
1) Joinder must be allowed by the FRCP
2) There must be SMJ over the case
What are the FRCP’s rules for claim joinder by the plaintiff?
Under the FRCP, P can join any claim that they have against the adverse party, but you need SMJ
When can a case be brought by multiple plaintiffs or against multiple defendants (or equivalently when can P join a party to the case)?
The claims by multiple P’s or against multiple D’s must:
1) arise from the same transaction or occurrence AND
2) raise at least one common question of law or fact
(then joinder allowed but not required)
What is the analysis for when a necessary/indispensable party needs to be joined?
1) Is the absentee necessary/required?
2) If the absentee is necessary, is joinder feasible? and
3) If the absentee can’t be joined, can the case proceed anyway?
When is a party necessary or required to be joined to the case?
Usually raised on motion of D
Either:
1) W/o absentee, the court can’t accord complete relief among the parties (concern about multiple suits)
2) Absentee’s interests prejudiced if not joined [Most common on the exam]
3) Absentee claims an interest that subjects a party (usually D) to a risk of multiple/inconsistent obligations
