Civil Procedure Flashcards
When must a Defendant object to personal jurisdiction?
In pre-answer motion, or in the answer as long as it is included in Defendant’s first response. If D does not object in first response, PJ claim is waived. (FRCP 12)
Where is venue proper?
First ask: are all D’s from the same state?
If D’s from different states: venue only proper where cause of action arose
If D’s from same state (or just one D): In district where D resides, or where cause of action arose
When (for what purpose) can D assert third party claim?
Only to obtain RECOVERY.
And that recovery must be for D’s own liability to P.
E.g. D is admitting some degree of liability to P, but says if I am liable to P, this third party is liable to me.
If D is denying liability altogether (e.g. saying it wasn’t me it was this other person) they can’t bring in that third-party D
What are the requirements for “relating back” in substituting a new Defendant?
- Claims in amendment must arise from same transaction or occurrence as the original filing
- New D must have been made aware/received notice of the case within the time allotted for serving original complaint (90 days from filing) + new D knew or should have known that but for a mistake, they would have been named originally. If not made aware until after the time allotted for serving original complaint, then cannot relate back
When can you make a 12(b)(1) motion to dismiss for lack of SMJ?
At any time. Right to dismiss for SMJ is NEVER waived.
When can a Defendant move to dismiss for improper venue (via FRCP 12(b)(3))?
Must be in your first response (in pre-answer motion or answer).
What state’s rules determine how service of process can be made?
As permitted under rules of the state in which the federal court sits ORRRRRR rules of the state in which service is affected.
(FRCP 4)
What is included in the scope of discovery?
Any non-privileged matter that is relevant to any party’s claim or defense, as long as info being sought can reasonably lead to admissible evidence (information directly sought does not need to be admissible)
What names MUST a party provide during discovery?
The names of any individuals likely to have discoverable information that the disclosing party MAY use to support their claims or defenses
What kind of immunity does work product doctrine provide?
Qualified immunity from discovery - immune from discovery unless opposing party can show substantial need and that they can’t obtain the materials another way without undue hardship
BUT “opinion work product” - mental impressions, conclusions, opinions, or legal theories of the disclosing party, has absolute immunity, and cannot be discovered.
If a district court grants or denies class certification, is this appealable?
Yes, within 14 days of entry of the order
FRCP 23(f)
When must motion for judgment as a matter of law (JMOL) be made?
At any time before case is submitted to jury.
Are cross claims ever compulsory?
No, cross claims are permitted by never compulsory.
What are the prongs for constitutional analysis of PJ?
Rule statement: Does the D have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice
- D’s contact with the forum (purposeful availment and foreseeability)
- Relatedness (does P’s claim arise from or relate to D’s contact with the forum? If yes, then specific PJ, if no, can only proceed if general PJ exists)
- Fairness (ONLY look at this for specific PJ cases; never for general PJ)
a. Burden on D and witnesses (very difficult burden; D has to show SEVERE disadvantage in litigating there)
b. State’s interest (e.g. state may want to retain the matter if its own citizens are allegedly being harmed by out of state Ds)
c. Plaintiff’s interest (e.g. injured in forum state and/or wants to sue at home, would be tough to litigate in D’s home state)
What does notice to D consist of?
- Summons (formal court notice of suit and timing for response)
- Copy of the Complaint
(these two docs together = “process”)
Who can serve process?
Anyone at least 18 years old and not a party to the action.
process server need not be appointed by the court
When must process be served?
Within 90 days of filing the complaint
Where/how can substituted service be done?
At the D’s usual place of abode, with someone of suitable age and discretion, who resides there
What state law methods of service of process are permissible?
The methods permitted by the state law of the state (1) where the federal court sits or (2) where service is made
When is D immune from service of process in a state?
D is immune from service of process in a state if they are in that state to appear as a party, witness, or attorney in a different civil case in the same state.
What is the citizenship of a corporation for diversity of citizenship/SMJ purposes?
A corporation is a citizen of ANY state or country in which it is incorporated and the ONE state or country in which it has its principal place of business (PPB).
PPB = “nerve center”; usually corporate headquarters
What is the key question for Federal Question (FQ) jx?
Is the plaintiff enforcing a federal right?
How long does a D have to remove a case to federal court?
30 days from service of process
What cases may be removed to federal court?
D can remove any case that meets requirements for diversity of citizenship OR FQ jx
BUT, if removal is based on diversity case should not be removed if:
- Any D is a citizen of the forum state
- More than one year has passed after the case was filed in state court
What is the proper venue for a case that is removed from state to federal court?
The federal district court “embracing” the state court where the case was filed
How long does P have to move to remand to state court (when a case has been removed to federal court), for reasons other than SMJ?
P must move to remand no later than 30 days after the filing of notice of removal
If fails to do so within that timeframe, waives right to have case remanded (but note, no time limit for claiming removal was improper based on SMJ)
When can a claim get in under supplemental jx?
If it arises from the same nucleus of operative fact as a claim that got in under diversity or FQ
(However, if case got in through diversity and additional claim is being asserted by P, general rule is no supplemental jx; but exception to that if multiple Ps and claim by one of them does not meet amount in controversy)
NOTE: court has discretion to decline supplemental jx, even if requirements are met
What are the five issues that are clearly “substantive” and for which the federal court must therefore apply state law?
- Conflict (or choice) of law rules
- Elements of a claim or defense
- Statutes of limitations
- Rules for tolling statutes of limitations
- Standard for granting a new trial bc jury’s award was excessive or inadequate
What must be included in a complaint?
- Statement of SMJ grounds
- Short and plain statement of the claim showing that P is entitled to relief (must include sufficient facts to support a plausible claim)
- Demand for relief sought (e.g. damages, injunction, declaratory judgment)
***P need not allege grounds for PJ or venue
How long does D have to respond after being served with process?
D has 21 days after being served with process to respond by motion or by answer
(But note that if D waived service, D gets an extension - has 60 days from when P mailed waiver form)
By when must you raise failure to state a claim and failure to join an indispensable party?
Can bring motion for failure to state a claim, or failure to join an indispensable party as late as at trial.
These are NOT waived just because you don’t include in first response.
What must a defendant do if motion to dismiss is denied?
Must serve answer no later than 14 days after notice of denial.
When can P amend complaint? When can D amend answer?
P has the right to amend complaint ONCE no later than 21 days after D serves first Rule 12 response
D has the right to amend answer ONCE no later than 21 days of serving it.
***After the “right to amend” period ends, amending party must seek leave of court or get written consent of opposing party to amend. Court will grant leave to amend if “justice so requires”
How do you make a supplemental pleading (setting forth things that happened AFTER the pleadings were filed)?
Must make a motion (there is no right to file). Whether motion is granted is in discretion of the court.
What must be true for claims to be brought by multiple Ps or for claims to be brought against multiple Ds?
- The claims must arise from the same transaction or occurrence
- The claims must raise at least one common question of law or fact
How do you determine if a party is “necessary” (or “required”)?
One of the following is true:
- Without absentee party, court cannot accord complete relief among existing parties
- Absentee’s interest may be harmed if not joined**** <—Most likely on exam
- Absentee claims an interest that subjects a party (usually D) to risk of multiple obligations
Can a necessary absentee be joined?
If it is feasible. It is feasible to join them if (1) there is PJ over the absentee and (2) there is SMJ over the claim by or against the absentee.
If joinder is feasible, necessary absentee is joined to the case.
If not feasible, court decides whether to proceed without absentee or dismiss the entire case.
When is intervention (absentee choosing to come into the case) “of right”?
When is intervention “permissive”?
Intervention is of right of the absentee party’s rights may be harmed if they are not joined
Intervention is permissive if there is at least one common question of law or fact between the absentee’s claim or defense, and the pending case
What are the initial requirements to qualify for a class action?
- Numerosity (too many class members for joinder to be practicable)
- Commonality (an issue in common to all class members so resolution of that issue will generate answers for everybody in one stroke)
- Typicality (class rep’s claims are typical of the claims of the class)
- Representative adequate (class rep will fairly and adequately represent the class)
(Need all four)
What are the three types of class actions?
Type 1 - Prejudice: Class treatment is necessary to avoid harm either to class members or to the non class party (these are rare)
Type 2 - Injunctive or Declaratory Relief: Ps in type 2 class action generally cannot seek damages
Type 3 - Common Question or Damages: For a type 3 class action, (i) common questions must predominate over individual questions and (ii) the class action is a superior method to handle the dispute. This is the type of class action must frequently used in torts. In this type only, the court must notify class members that they are in a class -- notice must be provided to all reasonably identifiable members.
Can a party have a medical exam of the opposing party done as part of discovery?
They must get a court order to compel the other party (or person in pary’s custody and control) to submit to a medical exam. The requesting party must show:
- Person’s health is in actual controversy AND
- Good cause
The requesting party chooses the medical professional to perform the exam.
Must work product be generated by a lawyer for discovery purposes?
No, work product need not be generated by lawyer herself; can be prepared by party herself, or by any representative of the party (e.g. a private investigator)
What is the proper order for hearing legal and equitable claims if both are involved in a case?
Jury should hear legal claims first, then judge will decide equitable claims.
When can motions for relief from judgment to correct clerical mistakes be made?
At any time.
May a trial judge call a witness and question them?
Yes, but the parties are entitled to cross examine the witness
What is the four part test for Preliminary Injunctions?
- Irreparable injury
- Reasonable likelihood of success on the merits
- Balance of hardships
- Public interest
When will court grant a TRO?
When necessary to prevent immediate, irreparable injury to a party
