Civil Procedure Flashcards
When are two claims considered related for purposes of supplemental jurisdiction?
When the claims arise out of a common nucleus of operative fact
What are the four requirements for a class action?
(i) The class must be so numerous that joinder of all members is impracticable (numerosity);
(ii) There must be questions of law or fact that are common to the class (commonality);
(iii) The claims or defenses of the representatives must be typical of the class (typicality); and
(iv) The representatives must fairly and adequately protect the interests of the class (adequacy).
What is the due process requirement for in personam jurisdiction?
Due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.
Generally, where is venue proper?
(i) A judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or
(ii) A judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located.
Under the Erie Doctrine, what law governs in a diversity action?
In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located, if there is no federal law on point. The district court will apply federal procedural law, even if a state rule or statute is in conflict.
What are the requirements for a plaintiff seeking a preliminary injunction?
A plaintiff seeking a preliminary injunction must establish that:
(i) He is likely to succeed on the merits;
(ii) He is likely to suffer irreparable harm in the absence of relief;
(iii) The balance of equities is in his favor; and
(iv) The injunction is in the best interest of the public.
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What are the required elements for a complaint?
Under Rule 8(a), a complaint must include:
(i) A short and plain statement of the grounds that establish the court’s subject matter jurisdiction;
(ii) A short and plain statement of the claim establishing entitlement to relief; and
(iii) A demand for judgment for the relief sought by the pleader.
What is federal question jurisdiction?
Under 28 U.S.C. 1331, the district courts have original jurisdiction over all actions arising under the Constitution, laws, or treaties of the United States.
When can a party amend a pleading?
Under Rule 15(a), a party may amend a pleading:
(i) Once as of right within 21 days if no responsive pleading is required; or
(ii) If a responsive pleading is required, within 21 days of service of the responsive pleading or within 21 days of being served with a motion under Rule 12(b), whichever is earlier.
Additionally, the court should freely give leave to amend a pleading when justice so requires.
When may a plaintiff join as a permissive joinder?
Pursuant to Rule 20(a)(1), a person may join in one action as plaintiff if:
(i) They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(ii) Any question of law or fact common to all plaintiffs will arise in the action.
Note: The same circumstances apply to permissive joinder of defendants under Rule 20.
Under Rule 20 permissive joinder, does the plaintiff to be joined have to meet the requirements of federal subject matter jurisdiction?
If multiple plaintiffs join together under Rule 20, then supplemental jurisdiction can exist for a claim that does not meet the statutory jurisdictional amount, provided the parties still meet the requirements of complete diversity.
When must an objection to improper venue be raised?
An objection to improper venue must be raised in a pre-answer motion to dismiss under Rule 12(b)(3) or in the first responsive pleading, if a motion under Rule 12(b)(3) is not filed.
What are the five bases for in personam jurisdiction?
(1) Voluntary Presence
(2) Domicile
(3) Consent
(4) Long-arm statutes
(5) Attachment
What is a compulsory counterclaim?
A pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if:
(i) The claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim; and
(ii) The claim does not require adding another party over whom the court cannot acquire jurisdiction.
Note: A party who fails to assert a compulsory counterclaim waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court.
What are the three types of personal jurisdiction?
(1) In personam jurisdiction
(2) In rem jurisdiction
(3) Quasi-in-rem jurisdiction
What are the three types of class actions?
(1) Risk of Prejudice: The class is maintainable if the prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or if prosecution of the claims through separate actions would impair the interests of the class members.
(2) Final Equitable Relief: A class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party.
(3) Common Legal or Factual Questions: A class can be certified if questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method for bringing about a fair and efficient adjudication of the controversy.
When a class action is brought under a common legal or factual question, what seven pieces of information must be stated in the notice provided to the members?
(i) The nature of the action;
(ii) The definition of the class;
(iii) The class claims, issues, or defenses;
(iv) That a class member may enter an appearance through an attorney if the member so desires;
(v) That the court will exclude from the class any member who requests exclusion;
(vi) The time and manner for requesting exclusion; and
(vii) The binding effect of a class judgment on members.
What are the three types of mandatory disclosures?
Rule 26(a) requires the parties to make:
(i) Initial disclosures;
(ii) Disclosures of expert testimony 90 days before trial; and
(iii) Pretrial disclosures 30 days before trial.
In assessing whether a case can be filed in federal court, when is diversity determined?
Diversity is determined at the time the case is filed. There is no requirement that diversity exist at the time the cause of action arose. A change in citizenship or amount in controversy after the filing of the case will not affect diversity jurisdiction that was in existence at the time of the filing. In addition, a change in the parties as a result of substitution or intervention will not affect diversity jurisdiction.
How does a party make a demand for a trial by jury?
Any party may make a written demand for a trial by jury. The demand, which may be made separately or in a pleading, must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury, and filed with the court within a reasonable time after service.
How many interrogatories may a party serve on another party?
Pursuant to Rule 33(a), any party may serve no more than 25 written interrogatories on any other party.
How long may a temporary restraining order remain in effect?
A temporary restraining order may remain in effect for only a limited number of days, but no longer than 14 days unless good cause exists or the adversary consents.
How much time does a party have to respond to interrogatories?
The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.
Note: The court may order or the parties may stipulate to a shorter or longer time.
What three factors will a court consider when deciding to set aside a default judgment?
Three factors the courts generally consider are:
(i) Whether the defendant’s failure to act was willful;
(ii) Whether setting the default aside would prejudice the plaintiff; and
(iii) Whether the defendant has presented a meritorious claim.
How long does a defendant have to respond to a complaint?
Under Rule 12, within 21 days of service of process, a defendant must respond to a complaint either by an answer or by a pre-answer motion.
Who is responsible for serving the summons and complaint and when must it be served?
The plaintiff is responsible for serving the summons and complaint upon the defendant within 90 days after filing the complaint.
How many peremptory challenges and challenges for cause does a party have?
Each party in a civil case gets three peremptory challenges.
Each party is entitled to an unlimited number of challenges for cause.
What is the rule for removal when there are multiple defendants?
In general, all defendants who have been properly joined and served are required to join in or consent to the removal. If the defendants are served at different times and a later-served defendant files a notice of removal, then any earlier-served defendant may join in the removal even though that defendant did not previously initiate or consent to removal.
Note: In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal.
What seven defenses may be raised in a motion filed under Rule 12(b)?
(i) Lack of subject matter jurisdiction
(ii) Lack of personal jurisdiction;
(iii) Improper venue;
(iv) Insufficient process;
(v) Insufficient service of process;
(vi) Failure to state a claim upon which relief can be granted; and
(vii) Failure to join a necessary or indispensable party under Rule 19.
Who has the burden of proof in a claim for summary judgment?
The movant has the burden of persuasion on a motion for summary judgment. Once the movant make a prima facie showing that summary judgment is appropriate, the burden shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of fact for trial.
Which defenses are waived unless raised in the pre-answer motion or answer?
Under Rule 12(h)(1), the defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defenses will be waived.
What is the standard used in deciding a motion to dismiss for failure to state a claim upon which relief can be granted?
Under Rule 12(b)(6), a claim for relief can be dismissed if it either (i) fails to assert a legal theory of recovery that is cognizable at law, or (ii) fails to allege facts sufficient to support a cognizable claim.
In deciding a motion under Rule 12(b)(6), 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.
