Civil Procedure Flashcards
Personal Jurisdiction:
-traditional
D domiciled in the forum; personally served while present in the forum’ express or implied consent to jurisdiction
Personal Jurisdiction:
Long Arm Statute
assume the stature reaches the constitutional limit
Personal Jurisdiction:
constitutional analysis: definition
does the D have such minimum contacts with the forum so that the exercise of jurisdiction doesn’t offend traditional notions of fair play and substantial justice?
My Parents Frequently Forgot to Read Children’s Stories
-minimum contacts if: purposeful availment + foreseeability
-fairness: relatedness + convenience + state’s interest
Personal Jurisdiction:
relatedness
-specific = D’s specific contact with the forum
-general = D corp must be “at home” in the forum state
Subject Matter Jurisdiction:
-diversity
diversity: complete diversity + amt in controversy > $75k
aggregation
ok to aggregate claims of one P against one D, but not 2 claims by 2 or more Ps against 2 or more Ds
federal question
“arises under” federal law
supplemental jurisdiction
“common nucleus of operative fact”
BUT, P cannot use suppl juris. in a diversity case solely to overcome a lack of diversity
refusal
Fed Q is dismissed early on; state claim is complex; state law issue predominates
removal
-D can remove if case could have been heard in Fed. Court under subj. matter juris.
*all Ds must agree
*no removal by P, if more than 1 year passed since the case was filed, or in a diversity case where any D is a citizen of the forum.
*once D files permissive counterclaim in state court, he can’t remove
Venue:
-local action
anything re: land
transitory
-district in which ALL Ds reside; if same state but diff districts then any district where one resides; OR substantial part of claim arose
*Corp resides anywhere it does business
transfer
-Consider convenience of parties and Ws and interest of justice:
-public factors re: applicable law, what community should bear the burden of jury service
forum nonconveniens
-far more appropriate court exists elsewhere (the Court would then dismiss w/o prejudice or stays the case):
—location of Ws and evidence; undue hardship for D; availability of adequate alternative forums; use of judicial resources; public policy
*applicable when transfer is impossible bc the court is in diff judicial system, but NEVER granted if P is a resident of the forum.
Service:
-summons and complaint; personal service OR
substituted service
-left with someone of suitable age and discretion who resides there
service on agent
Delivering a copy of the summons and complaint to an agent authorized to receive service
waiver my mail
process mailed to D; formal service waived if returned in 30 days. If no return, personal or sub service is required
immunity
if in the state as a W or a party
timing
-must serve the D within 90 days after complaint filed, or Court must dismiss with prejudice unless P shows good cause
Which law governs the dispute?:
-Erie Doctrine
-in diversity and suppl. juris. cases, the Federal Court must apply state substantive law: SoL; choice of law rules; elements of claim/defense; rules on tolling SoL
*BUT the Court uses Federal Procedural Law
process to analyze substantive law
-analyze if outcome determinative (SL); balance of interest; avoid forum shopping (SL)
*if Fed law conflicts, Fed. law prevails
Interlocutory Injunctions:
-preliminary injunction
-preserves status quo pending determination of merits of litigation
*must provide notice to adverse party
*must show: (1) imminent irreparable injury (non-monetary); (2) no adequate legal remedy;
(3) substantial likelihood of success on the merits;
(4) a balance of the hardships;
(5) not adverse to public interest
temporary retraining order
-preserves the status quo of subject matter of litigation, and prevents irreparable harm until PI hearing
*must provide notice UNLESS: (i) immediate and irreparable injury; (ii) effort to give notice; and (iii) provide security in case party wrongfully restrained/enjoined
*must show same elements as PI
*lasts 14 days unless an extension is granted
Proper Pleadings?
-Rule 11
-attorney must sign all pleadings, etc. to certify that: (i) no improper purpose; (ii) legal contentions are warranted by law; (iii) factual contentions and denials have evidentiary support
*can be raised by opposing party w/in 21 day safe harbor OR by court sua sponte
the claim
-must plead FACTS supporting plausible claim enough to put D on notice and prepare reasonable response
*(Iqbal/Twombly standard) + basis of Subj. matter juris + demand for relief
D Response
-must be within 21 days of service: can be motion for more def statement/motion to strike; Motion or Answer.
-waivable: lack of personal juris; improper venue; insufficient service of process
-non-waivable: failure to state a claim, failure to join indispensable party; lack of SMJ
requirements for the Answer
-must respond (admit, deny, lack of info) + raise any affirmative defenses (SoL, SoF, res judicata, self defense)
right to amend
-P once within 21 days after D serves first response
-D once within 21 days after D serves answer
-if no right, seek leave of the court (the court will consider delay, prejudice, futility)
supplemental
-pertains to matters that occur after initial pleading
-permission from the court REQUIRED
Defendant’s Claims:
-counterclaims/Cross complaint against P
-compulsory if arises from the same transaction or occurrence
cross claim / cross complaint against co-D
permissive if arising from the same transaction or occurrence or under supplemental juris.
impleader if by D/Cross Complaint against 3rd Party
-NO diversity required for 3rd party practice between 3rd party D and 3rd party P
Joinder: Are Proper Parties Before the Court?
-permissive
-arise under the same transaction or occurrence + raise 1 common question
compulsory
(1) complete relief can’t be given to existing parties without them; (2) disposition in party’s absence may impair their ability to protect their own interest; or (3) their absence would expose existing parties to double or inconsistent obligations
how to join the party?
-if feasible, PJ+SMJ (keep diversity) (discretion of the court
-if unfeasible, the court can choose to proceed without them
-look at alternative forum; actual likelihood of prejudice; whether court can shape relief to avoid prejudice; whether P will be deprived of adequate remedy
Intervention:
-of right
-permissive
-of right: applicant has an interest in the property or transaction and action without him may impair ability to protect his interest
-permissive: applicant’s claim or defense and the main action have a common question of fact in common; must have own jurisdiction
Claims:
-federal impleader
Join a 3rd party for indemnity / contribution on underlying claim
interpleader
-instituted by P to determine who has a valid claim to the stake
-under federal rule, interpleader must follow regular federal question or diversity rules
-under statutory rules, interpleader has special, simpler standards: diversity between one claimant and $500 in issue, service nationwide and venue properly where any claimant resides
Class Action:
-subject matter juris. required
-requirements: (Nobody Can Touch Rocky’s Apple):
Numerosity; Commonality; Typicality; and Representative is Adequate
types
-prejudice: class treatment is necessary to avoid harm to class member or party opposing class;
Injunction / Declaratory Judgment: class members are treated alike by other party;
-Damages (most likely ex. mass tort): (i) common questions predominate; (ii) class action is superior
Class Action: Notification
-if damages class action: notify all identifiable members that they can opt out, otherwise bound if they don’t
*they can enter a separate appearance; the class representative pays
Subject Matter Jurisdiction
-federal question or diversity
-if diversity, only look to rep, no one else in the class
-traditional: rep has complete diversity from Ds + Rep’s claim > $75k;
-Class Action Fairness Act: Subj. matter juris. if any class member is diverse from any D + more than 100 class member + aggregate claim of more than $5mil
settlement of class action
-requires court approval; notice to the class; 2nd chance to opt out
Discovery:
-required disclosures
-duty to produce without request:
(1) Initial Disclosures (ID people and docs likely to have discoverable info; computation of damages; insurance coverage)
(2) list of experts; (3) pretrial: detailed info about trial evidence at least 30 days before trial
discovery: scope
-relevant: reasonably calculated to lead to admissible evidence; must be relevant to the claim or defense
-proportional: must be proportional to the needs of the case
*the benefit outweighs the burden
depositions
-non-parties subpoenaed; parties require notice
interrogatories
limited to 25 total; 30 days to respond
request to produce
30 days to respond
requests for admission
30 days to respond
physical / mental exam
court order required
duty to supplement
if incomplete or incorrect, response must be supplemented
sanctions
-partial or total violation
-cost or contempt + extreme sanction for extreme violations: monetary sanction; strike pleadings; disallow evidence; dismiss; default judgment
privilege
-work product / attorney work product : mental impressions, conclusions, legal theories, opinions
e-discovery
-no need to produce ESI if party shows not reasonably accessible bc undue burden, but court may order production + cost sharing/shifting
-authentication of e-discovery
-failure to preserve electronic info
-authentication: may use metadata to authenticate
-failure to preserve: must take reasonable steps to preserve ESI if litigation is anticipated
-if the data is lost + prejudice to the other party + intent to deprive the other party of the data = Court may
(i) presume or instruct jury it may/must presume lost data unfavorable to party; or (ii) dismiss action or enter default judgment
Adjudication Without a Trial:
-voluntary dismissal
-P can voluntarily dismiss before D serves an answer or motion w/o prejudice
involuntary dismissal
-fail to prosecute, or abide Court order
failure to state a claim (12(b)(6))
-alleged facts must support legally recognized claim
-assumes all allegations are true, and only looks at the face of the complaint
summary judgment
-The moving pary: must show no genuine dispute of material fact
-The opposing party: show that a triable issue exists
*the evidence is looked as in the light most favorable to the non-moving party
Pre-trial Conferences:
-in general
-the Court may hold as many as needed to expedite the case and facilitate settlement
-pre-trial order
controls the course of action taken in the conference
-final pretrial conference
-the Court may use to formulate the trial plan
-held close to trial date, may be modified by the Court only to prevent manifest injustice
sanctions
-failure to attend the conference or obey the order, being substantially unprepared, acting in bad faith
Verdicts and Judgments:
-recovery
-if default, recovery is limited to amount sought in the complaint
jury trial
-7th Amendment right to jury trial in civil cases as to legal relief
-the Court decides equitable relief
voir dire
-unlimited strikes for cause; each side gets 3 preemptory
-6-12 jurors, no alternates
-requires an unanimous verdict
jury verdicts
-general
-special
-general with special interrogatories
-general: finds in favor of P or D completely, gives amount of damages
-special: jury makes a finding on all issues of material fact submitted to them, the court applies the law
-general w/ special interrogatories: jury answers factual questions to ensure the general verdict is valid
motion for judgement as a matter of law / directed verdict
-D moves at the close of P’s evidence and close of all evidence
-P only move at close of all evidence
*standard: reasonable people couldn’t disagree
renewed motion for judgment as a matter of law
*must bring motion for judgment as a matter of law FIRST
-claim that jury verdict is not reasonable
-within 28 days of entry of judgment
-same standard as motion for judgment as matter of law
motion for a new trial: grounds
grounds: prejudicial error making judgment unfair; new evidence that couldn’t have been obtained with due diligence; prejudicial misconduct; judgment is against the weight of the evidence; excessive/inadequate damages that SHOCKS the CONSCIENCE (remittitur: jury award is too large, P chooses lesser figure or new trial)
Appealability and Review:
-appeal
-file in the trial court within 30 days of entry of judgment
final judgment rule
-Decision on final merits of the claim; All Ds must agree
-Dnial of motion for summ. jug.; grant for new trial; grant to remand to state court: then NO FJ
-Denial of new trial; grant or deny renewed motion for judgment as matter of law: then YES FJ
*default judgment that does not dispose of all claims among all parties: NO FJ unless directed by Court
interlocutory review:
-as of right
-as of right: orders re: injunctions, receivers, property possession; admiralty, patent infringement, grant/deny class certification
interlocutory review:
-discretionary
-discretionary: but Court may review interlocutory orders only if: (i) the order involves controlling question of law, (ii) substantial ground for differing opinion; (iii) immediate appeal may advance ultimate termination of case; (iv) Court of appeals allows appeal
Extraordinary Writs:
-types
-writ of mandate: compel lower court to do something that the law requires
-writ of prohibition: to stop a lower Court from doing something that the law doesn’t allow
Extraordinary Writs:
-requirements
-the party will suffer irreparable harm if the writ is not issued, eg. unusually harsh or unfair;
-normal appellate route is inadequate;
-party has beneficial interest in the outcome
Is the Decision Binding in Future Cases:
-Res Judicata: Claim Preclusion
-Claimant won case 1: res judicata merges the cases
-Claimant lost Case 1: res judicata bars the case
-requirements: (i) same parties; (ii) ended in valid final judgment on the merits; (iii) assert the same cause of action / claim
Is the Decision Binding in Future Cases:
-Collateral Estoppel: Issue Preclusion
(i) Against someone who was a party in Case 1;
(ii) Case 1 ended in valid, final judgement on the merits;
(iii) Issue was actually litigated and determined;
(iv) Issue essential to the judgment
Collateral estoppel: who asserts?
-traditional: mutuality required
-modern: non-mutuality
-defensive: D can assert if P was a party to a prior case, but only if P had full chance to litigate
-non-mutuality offensive: P can assert against D if not “unfair”: full and fair opportunity to litigate; party could foresee multiple suits; P couldn’t have been joined easily; no inconsistent judgments on record
