Civil Procedure Flashcards
Which FRCP governs sanctions?
Rule 11 establishes the standards that attorneys and individual parties must meet when filing pleadings, motions, or other papers and provides sanctions for violations.
What does Rule 11 require?
(Hint: There’s A LOT on this card, really get into it yuh; general rule + 4 elements)
Under Rule 11(a), every pleading, motion, and other paper filed with the court must be signed by at least one attorney of record (or by the party personally if pro se).
Under Rule 11(b), the signing attorney or pro se party certifies that to the best of her knowledge, information, and belief, formed after a reasonable inquiry under the circumstances (i) there is no improper purpose; (ii) the claims/defenses are warranted by existing law or nonfrivolous argument for changing the law; (iii) the factual contentions have (or will have) evidentiary support; and (iv) denials are warranted on the evidence or lack of evidence.
How must a motion for sanctions under Rule 11 be made?
A motion for sanctions must be made separately from any other motion and must describe the specific conduct alleged to violate Rule 11.
The motion must first be served on the opposing party under Rule 5. The opposing party then must be given 21 days to withdraw or correct the challenged pleading.
If the safe harbor period passes, and the opposing party fails to correct the pleading, the party seeking sanctions may file the motion with the court.
What are appropriate sanctions under Rule 11 and who can be subject to sanctions?
Under certain circumstances, after notice and a reasonable opportunity to respond, the court may (in its discretion) impose sanctions on attorneys, law firms, and parties for violations of Rule 11.
These sanctions are limited to what will deter future misconduct. Sanctions may include nonmonetary directives or an order to pay a penalty into court. If sanctions are imposed on motion, an order directing payment to the movant for reasonable attorney’s fees and other expenses directly resulting from the violation may be appropriate.
Is a law firm jointly responsible for Rule 11 violations by one of its attorneys?
Yes. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
How is the court limited in imposing sanctions against a represented party?
The court is not permitted to impose a monetary sanction against a represented party for violating the requirement that the legal contentions be warranted by existing law or nonfrivolous argument.
However, there is some authority for imposing such sanctions on a represented party who knew (or should have known) that the claim was legally and factually baseless.
What is nonparty intervention under Rule 24?
Under Rule 24, a nonparty has the right to intervene in an action when, upon timely motion, (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.
What is a temporary restraining order (TRO)? When can one be granted without notice?
A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction. A TRO has immediate effect and lasts no longer than 14 days unless good cause exists.
A TRO can be issued without notice to the adverse party if the moving party can show (1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and (2) the efforts made at giving notice and the reasons why it should not be required. All of this must be done in writing.
What is a preliminary injunction and when can it be issued?
A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue.
A party seeking a preliminary injunction must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to suffer irreparable harm in the absence of relief; (3) the balance of equities is in his favor; and (4) the injunction is in the best interest of the public.
What is subject matter jurisdiction?
For a federal district court to have subject matter jurisdiction over a complaint, it must have either federal question (arising under federal law) or diversity jurisdiction. For diversity, both the amount in controversy (>$75k) and diversity of citizenship (different states) requirements must be met.
For diversity, how is the citizenship of a corporation determined?
For the purposes of diversity jurisdiction, a corporation is a citizen of its state of incorporation and the state where it has its principal place of business (the nerve center/HQ).
What is a long arm statute for personal jurisdiction?
Usually, the long-arm statute will permit courts to exercise PJ to the maximum extent allowed by the Constitution. The 14th Amendment Due Process Clause allows a court to exercise PJ over a defendant if the defendant has minimum contacts with the forum state such that hearing the action does not offend traditional notions of fair play and substantial justice.
A defendant’s contacts with the forum state must be purposeful and substantial, such that the defendant should reasonably foresee being taken to court there.
What is specific jurisdiction?
When a cause of action arises out of or closely relates to a defendant’s contact with the forum state, jurisdiction may be warranted over that action even if that contact is the defendant’s only contact with the forum state.
For specific jurisdiction, there must be an affiliation between the forum and the underlying controversy, activity, or occurrence that takes place in the forum state is therefore subject to the state’s regulation.
What is general jurisdiction (for a corporation)?
To determine whether the corporation is subject to general personal jurisdiction, the proper inquiry is whether the affiliations with the forum state are so continuous and systematic as to render the corporation essentially “at home” in the forum state. This is always the case in the state of incorporation and the state of principal place of business.
What are the 14 day deadlines?
- File answer after pre-answer motion denied
- File third-party complaint without leave after original answer served
- Respond to amended pleading
- Submit proposed discovery plan and initial disclosures after initial conference
- Demand jury trial after last pleading served
