Civil Procedure Flashcards
Supplemental Jurisdiction and Diversity
can’t be used to destroy diversity, still need complete diversity!
AIC
AIC not met if it is clear to a legal certainty that the amount recoverable does not exceed $75,000
Venue
Proper in any district where a D resides if all the Ds reside in the same state.
Venue is also proper where the events giving rise to the claim arose. If there is no district anywhere in the United States that satisfies (i) or (ii), the action may be brought in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action
Forum non conveniens
Relation Back
Amendments to complaints substituting a new D are allowed, and the amendment will relate back to the original complaint IF (1) the claims in the amendment arise from the same transaction or occurrence and (2) within the time allotted for serving the original complaint, 90 days from filing
3rd party claims
Crossclaims are never compulsory. A third-party defendant may assert a claim against the plaintiff if the claim arises out of the same transaction or occurrence as the plaintiff’s original claim.
Third-party claims may be asserted only to obtain recovery, and that recovery must be for the defendant/third-party plaintiff’s own liability to the plaintiff. A D cannot assert a 3rd party claim against another party unless they are seeking to obtain recovery and that recovery must be for the D’s own liability to the original P. Basically, D can only bring in a 3rd party D if the original D accepts some responsibility. And definitely not compulsory!
Default Judgments
A defendant against whom a default is entered loses the right to contest liability unless the entry of default is set aside. However, the amount of damages must still be determined before a default judgment may be entered, and the defaulting party can be heard at the hearing for damages. If the defendant has “appeared,” even though he has not answered, he must be notified of the request for a default judgment by first-class mail at least seven days before the hearing on the application for a default judgment. the clerk may enter a default judgment only in very limited cases. When the amount of damages is not for a sum certain, the judge must hold a hearing to determine the damages
JMOL
A motion for judgment as a matter of law (formerly known as a motion for directed verdict) may be made by any party any time before submission of the case to the jury.
Motion for new trial
A motion for a new trial may be granted because of an error during the trial (usually going to the admissibility of evidence or the propriety of the jury instructions), because the verdict is against the weight of the evidence (limited to cases where the judge finds the verdict seriously erroneous), because of jury misconduct, or because the verdict is excessive or inadequate.
Remittitur
If the judge believes that the jury’s compensatory damages award is so excessive as to “shock the conscience” (or, in a diversity case, if the award meets the state standard for excessiveness), the judge may order a new trial or may offer the alternative of remittitur. When offered remittitur, the plaintiff is given the choice between accepting an award less than that awarded by the jury or submitting to a new trial.
Additur
NOT allowed in federal
Issue Preclusion
Claim Preclusion
Before claim preclusion (also called res judicata) applies, it must be shown that (i) the earlier judgment is a valid, final judgment “on the merits”; (ii) the cases are brought by the same claimant against the same defendant; and (iii) the same “cause of action” (or “claim”) is involved in the later lawsuit. While various tests have been used to define “cause of action,” the modern approach is to require assertion of all claims arising out of the same transaction or occurrence that is the subject matter of a claim asserted by the claimant.
What is discoverable?
In general, discovery may be had of any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to the information, the resources of the parties, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefits. It is not required that the information itself be admissible at trial.
Initial Disclosures
Without waiting for a discovery request, as an initial disclosure, a party must provide the names of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses (unless solely for impeachment).
