Civil Procedure Flashcards
1
Q
Types of personal jurisdiction
A
- in personam = forum has pj over D
- in rem = forum has power to adjudicate rights of all persons to a particular item of property; D not personally bound
- quasi in rem = 2 types
- type1 = court adjudicates rights of parties in property based on property being in forum; close connection between case and property provides minimum contacts
- type2 = court attaches property to bring defendant into forum on unrelated claim; defendant must have minimum contacts with forum
2
Q
statutory limitations on personal jurisdiction
A
Federal court must analyze personal jurisdiction as if it were a court of the state in which it is located
- state law must authorize jurisdiction
- most, if not all, states authorize jurisdiction over a defendant who:
- is present in forum state and personally served with process therein
- is domiciled in forum state
- conducts systematic and continuous business in the state such that the defendant is essentially at home
- consents
- commits an act covered by the long arm statute
3
Q
Constitutional limitations on personal jurisdiction
A
- traditional rule = physical power
- modern due process standard = contact and fairness
- defendant must have such minimum contacts with the forum such that the exercise of personal jurisdiction over him is fair and reasonable (consider whether defendant purposefully availed himself of the benefits and protections of state law and whether he could have anticipated being brought into state court)
- notice also required
4
Q
complete diversity
A
- every D must be of a diverse state from each P
2. complete diversity when action commenced. interpleader exception.
5
Q
questions of citizenship for complete diversity
A
- individuals = domicile
- corporations = every state/country where incorporated and where principal place of business (where corp’s high level officers direct and control its activities)
- unincorporated associations and limited liability companies = citizenship of each of its members
- legal representative = domicile of the represented person
- class action = domiciles of the named members
- nonresident US citizens = not a citizen of any state and not an alien
6
Q
supplemental jurisdiction
A
- must be one claim with original jurisdiction
- supp claim must arise from a common nucleus of operative fact as the original jurisdiction claim such that the claims should be tried together
7
Q
subsequent addition of parties and claims
A
- intervention of right = no supplemental jurisdiction
- substitution of parties = citizenship of original party controls
- impleader = supplemental jurisdiction as to claim of defendant v. third party defendant; claim of plaintiff v. third party defendant must have have original jurisdiction in diversity
- cross claim = supplemental jurisdiction
8
Q
diversity jurisdiction
A
- complete diversity
- amount exceeds $75,000
- erie doctrine
9
Q
Aggregation
A
- one plaintiff may aggregate claims against a single defendant
- one plaintiff may not aggregate separate claims against several defendants
- one plaintiff may sue several defendants on a joint liability claim if it exceeds 75,000
- several plaintiffs may aggregate claims against one defendant if seeking to enforce single title or right
10
Q
counterclaims
A
- compulsory counterclaim may invoke supplemental jurisdiction
- permissive counterclaim needs original jurisdiction
- citizenship generally not an issue - if diversity exist between plaintiff v. defendant, it exists between defendant v. plaintiff
11
Q
Federal Question Jurisdiction
A
- federal question must appear in complaint
- implied federal right of action possible
- supplemental jurisdiction
- pendent claims = federal court has discretion to hear state law claim if it arises from a common nucleus of operative fact as the federal claim such that the claims should be tried together
- pendent parties = must be common nucleus of operative fact
- specific statutory grants of exclusive federal jurisdiction
12
Q
venue
A
- venue is proper in federal district where any defendant resides, where a substantial part of events of omissions occurred, or where a substantial part of the property is situated
- fallback provision = if no district satisfies above, venue proper where any defendant is subject to court personal jurisdiction
- unlike subject matter jurisdiction, venue can be waived
13
Q
Residence for venue purposes
A
- individuals = domicile
- business entities = where subject to court’s personal jurisdiction
- non residents = any judicial district
14
Q
Transfer
A
- original venue proper = transfer for convenience to venue where case might have been brought or to venue to which parties consent
- original venue improper = transfer to venue where case could have been brought to correct error - dismissal if transfer not available or if some extraordinary circumstance exists
15
Q
Law applicable on transfer
A
- original venue proper = a transfer solely on convenience grounds carries the law of the transferor court (including choice of la) to the transferee court unless the transfer was ordered to enforce forum selection clause
- original venue improper = law of transferee court applies
16
Q
procedure for removal
A
- time = 30 days
- generally starts to run after formal service of complaint
- if later pleading, mtn is filed that shows case is now removable, period begins to run on service of that pleading, mtn, etc.
- remand to state court if no federal subject matter jurisdiction
17
Q
service of process
A
- personal service, abode service, service on agent, also state rules and waiver of service (by mail)
- parties served outside of state or in foreign country
- immunity from process for parties, witnesses, attorneys in another action, or fraud or deceit
18
Q
interlocutory injunctions (maintain status quo until trial)
A
- preliminary injunctions - require notice
- substantive requirements = irreparable harm, harm to party seeking injunction outweighs harm to party to be bound, likelihood of success on the merits, public interest factors
- temporary restraining orders = necessary to prevent irreparable harm
19
Q
Pleadings
A
- complaint = notice of plaintiff’s claim
- pre answer mtns
- answer
- special pleading for fraud, mistake, special damages etc.
- reply by plaintiff - not generally required
- amendment of pleading and supplemental pleadings
- rule 11
20
Q
pre answer mtns
A
- mtn to dismiss for
- lack of subject matter jurisdiction
- lack of personal jurisdiction
- improper venue
- insufficient process or service of process
- failure to state a claim
- failure to join a party
- mtn for more definite statement
- mtn to strike
21
Q
Answer -specific or general denials by defendant
A
- compulsory counterclaims - arises out of same transaction or occurrence; must be pleaded
- permissive counterclaims - any other counterclaim
- inconsistent claims or defenses allowed
22
Q
amendment of pleading and supplemental pleadings
A
- relates back to filing date of original complaint if it concerns the same conduct, transaction or occurrence.
- if party is charged, relates back if, within period for service of process, new party
- received notice of the action such that party will not be prejudiced
- knew of should have known that, but for the plaintiff’s mistake concerning identity, new party would have been made a party originally
23
Q
rule 11
A
- attorney certifies proper purpose upon presenting paper to court
- sanctions - judge has discretion limited by deterrence factor
24
Q
compulsory joinder
A
- court cannot accord complete relief without absentee
- absentee has interest that will be impaired by lawsuit
- parties are at substantial risk for multiple or inconsistent judgments without absentee
- if above are true and absentee;s presence will not destroy subject matter jurisdiction or venue, and the court can obtain personal jurisdiction over absentee, he must be joined
- if absentee cant be joined court must consider to proceed without absentee looking at:
- prejudice to absentee and parties
- whether judgment can be shaped to avoid prejudice
- adequacy of judgment without absentee
- whether another forum can hear entire case
25
permissive joinder
arises out of same occurrence and transaction and common question of law
26
joinder of claims
1. class actions
2. class action fairness act
3. shareholders derivative suits
4. interpleader
27
requirements for joinder of class action
1. numerous class so joinder of all is impracticable
2. common questions of law or fact
3. named parties interests are typical
4. named parties will ensure fair and adequate representation of absent members
5. either separate actions risk inconsistent results of harm absent members, injunctive or declaratory relief is appropriate, or common questions of law or fact predominate and class action is superior to other methods
28
class action
1. effect of judgment = all members bound unless opt out
2. notice of pendency required in common question suit so members can opt out
3. jurisdiction = for diversity, named partied control whether diversity and amount in controversy are satisfied
4. notice of settlement must be given to class members so they can object at fairness hearing
5. court must approve dismissal or settlement after fairness hearing if class action based on common question of law or fact, court may refuse settlement unless members are given second chance to opt out
29
class action fairness act
1. federal jurisdiction if:
- any member of the plaintiff class is of diverse state citizenship from any defendant
- aggregated amount in controversy exceeds 5mil
- 100 members to the class
2. local considerations may defeat jurisdiction
30
shareholder derivative suits
1. must have been shareholder at time of transaction; not conclusive effort to confer jurisdiction; made demand on directions if required
2. jurisdictional amount - consider corporations damages
3. venue - where corporation could have sued the same defendants
31
types of disclosure required without discovery request
1. initial disclosure - generally disclosure of witnesses who support claims or defenses and materials that support claims or defenses
2. disclosure of expert testimony - testifying experts and their reports must be disclosed
3. pretrial disclosures - trial witnesses, depositions to be used at trial, exhibits, etc.
32
scope of disclosure and discovery
Generally any relevant nonprivileged matter that is proportional to the needs of the case
1. trial preparation materials - only if substantial need and to avoid undue hardship
2. experts (may depose testifying experts and consulting experts if exceptional circumstances)
3. protective orders may limit or end discovery if abused
33
types of discovery upon request
1. pre action depositions to perpetuate testimony
2. oral depositions
3. written depositions
4. interrogatories to parties - written questions to parties
5. production of physical material - non parties need to be subpoenaed
6. request for admissions as to truth or genuineness of any matter or document
34
enforcing disclosure and discovery
1. mtn to compel
- must certify good faith attempt to resolve dispute
2. failure to comply with court order
- sanctions or no sanctions if substantially justified or unjust
3. failure to disclose or supplement
- no use of material unless subtainitally justified or harmless, or sanctions
4. failure to admit
- pay expenses for proving matter unless generally some good reason for not admitting
5. failure to attend own deposition, serve answers to interrogatories, respond to request for information
- must certify good faith attempt to resolve dispute, sanctions, and must seek order of protection to avoid sanction if request objectionable.
35
use of depositions at trial or hearing
1. impeach witness
2. for dead, unavailable or absent witness
3. for any purpose if dependent is the adverse party
36
pre trial conferences
1. rule 26(f) conference of parties - planning for discovery
2. rule 16(b) scheduling conference
3. sanctions for failure to attend, obey an order, etc.
37
alternative dispute resolution
1. contractual arbitration - written agreement to arbitrate
2. judicial arbitration - voluntary arbitration under auspices of court
3. mediation - use of neutral person to facilitate voluntary settlement between parties
38
jury trial
1. right to jury - 7th amendment
2. jury six - at least 6, no more than 12
3. jury instructions - objections must be made before jury retires
4. jury verdicts - general (for either side and amount of damages) or specific (jury makes findings on material issues of fact)
39
summary judgment
if no genuine dispute of material fact, party entitled to judgment as a matter of law
-no trial necessary
40
judgment as a matter of law
directed verdict
1. evidence viewed in light most favorable to non moving party
2. witness credibility is not considered
3. standard - evidence is such that a reasonable jury would not have a legally sufficient basis to find for the party on that issue
41
renewed motion for judgment as a matter of law
1. same standards for judgment as a matter of law
| 2. must after raised before
42
motion for new trial
some error occured at trial
-if made with renewed motion for judgment as a matter of law and renewed motion is granted, judge must rule hypothetically on new trial mtn.
43
attack on the judgment at the trial court level
relief from judgment or order is given for
1. clerical mistakes
2. other grounds for relief from judgment
independent action in equity to set aside judgment
44
time for appeals
generally 30 days
45
reviewable order - final orders reviewable on appeal
1. interlocutory orders as of right - reviewable
2. interlocutory appeals act - review discretionary
3. collateral order rule - reviewable
4. orders may be made appealable (or non appealable) by writ
5. certification of class action can be appealed within 14 days of order
46
effects of judgment on future cases
1. claim preclusion (res judicata) - a final judgment on the merits bars claimant from asserting same claim in later action
2. issue preclusion (collateral estoppel) - a judgment binds parties (or their privies) in subsequent actions between them as to issues actually litigated and essential to judgment in first action
47
who is bound by judgment
1. parties and their privies are bound
2. mutuality rules
- traditionally, if non party was not bound by a judgment, he could not use issue preclusion against one who was bound by the judgment
- some states and federal courts have relaxed mutuality rule when issue preclusion is used defensively
- some states and federal courts employ a four part test to determine if issue preclusion can be used offensively - if all of the following are answered affirmatively, issue preclusion can be used offensively:
1. are the issues identical
2. is there a final judgment on the merits
3. did the party against whom the judgment is to be used have a fair opportunity to be heard
4. is it not unfair or inequitable to apply issue preclusion
