Civil Procedure Flashcards
What are the 7 issues for civil procedure questions?
- SMJ
- PJ
- Notice/opportunity to hear/be heard
- Service of process
- Venue
- Can the case be removed or remanded?
- Have any of the first 6 issues been waived?
The rules of civil procedure should be administered to secure ___________.
The just, speedy, and inexpensive determination of every action and proceeding.
Federal courts are courts of ________ jurisdiction.
Limited
In federal court, subject matter jurisdiction can be based on:
- Federal question
- Diversity of citizenship
A federal question is a civil action that arises under:
- The Constitution
- Federal laws
- US Treaties
What is the well-pleaded complaint rule?
A federal question must be integral to a plaintiff’s cause of action as revealed in their complaint
What is an anticipatory defense?
A plaintiff anticipates a defense based on a federal statute; this does not constitute a federal question.
What are artful pleadings?
Pleadings that are not integral to the claim. Federal questions made in artful pleadings do not constitute a federal question.
State statutes that incorporated federal standards arise under ____________ law, meaning ____________.
State
They are not federal questions
One example of state laws that incorporate federal standards are _____________.
State tort laws
For federal question cases, there is no _________________ requirement.
Amount in controversy
What is exclusive federal question jurisdiction?
Congress decides that any action arising under a certain statute must be heard in federal court because these cases require uniform national treatment
Two acts that rely on exclusive federal question jurisdiction are:
- The Copyright Act
- The Patent Act
What is common law federal jurisdiction?
A case does not arise under federal law, but there is a federal interest so central to the case that federal courts will assume jurisdiction.
To qualify for diversity of citizenship federal jurisdiction, the plaintiff must do what?
- Show complete diversity
- Satisfy the amount in controversy requirement
What is complete diversity?
No plaintiff can be from the same state as any defendant.
When in the course of proceedings must complete diversity be found?
At the commencement of the lawsuit
A diversity suit will not be dismissed if complete diversity is ____________.
Destroyed after the action is commenced
In determining diversity, citizenship of persons is based on ___________
Domicile, not residence
A person’s domicile is found where there is:
- Physical presence
- Intent to remain for the indefinite future
How many domiciles can a person have?
1
In order to assess a person’s intent to remain for the indefinite future, a court will consider ________
All relevant information, such as voting, car registration, taxes, family, etc.
A corporation is a citizen of which states?
- State where it is incorporated
- State where it has its principal place of business
Where is a corporation’s principal place of business?
The place of a corporation’s “nerve center” from where its officers conduct the corporation’s important business
Where is domicile for an unincorporated association?
Consider the citizenship of all individual members
Historically, ______________ governed jurisdiction in representative actions.
Citizenship of the representative
The citizenship of the represented party governs for jurisdiction when the represented party is a:
- Minor
- Incompetent
- Decedent
In class action suits, citizenship is determined according to ____________
Citizenship of members of the class
What are the rules regarding diversity and US citizens living abroad?
They cannot sue or be sued under diversity jurisdiction in federal court
Where is a permanent resident alien a citizen?
In the state where they are domiciled
What is alienage jurisdiction?
The court has diversity jurisdiction over an action between a state citizen and an alien, but not over an action between two aliens.
What is the amount in controversy requirement?
Plaintiff must have a good faith claim exceeding $75K exclusive of interests and costs
Does a party have to provide a specific amount to meet the amount in controversy requirement?
No; they must only show that there is some good faith possibility of recovering $75K
When can a claim be dismissed for failure to meet the amount in controversy requirement?
It must be a legal certainty that the amount in controversy is less than $75K
What is aggregation?
One plaintiff may combine claims against the same defendant.
Multiple plaintiffs can combine their claims to meet the amount in controversy requirement only if ________________.
They have joint interest, such as two parties owning the same land and suing for $40K each.
For the purposes of the amount in controversy requirement and multiple plaintiffs joining claims, ________ is not the same as ___________.
Joint and several liability
Joint interests
How is equitable relief valued for the purposes of the amount in controversy requirement?
By either:
1. Value of the harm to the plaintiff
2. Cost of defendant’s compliance
Even if there is diversity jurisdiction, a federal court will not hear cases involving:
- Divorce
- Alimony
- Child custody
- Probate of estate
What is the doctrine of supplemental jurisdiction?
Applies to any added-on claims that do not have an independent basis for SMJ in order to allow them into federal court
What is the test for supplemental jurisdiction?
Common nucleus of operative fact
What is the “Common Nucleus of Operative Fact” test?
The added-on claim must share a common nucleus of operative fact with a claim that satisfies SMJ.
The “Common Nucleus of Operative Fact” test is always satisfied if __________.
The additional claims arise out of the same transaction or occurrence
What is the one limitation on the plaintiff’s ability to bring supplemental jurisdiction?
A plaintiff may not add a second claim which would destroy complete diversity
A plaintiff may bring an additional claim under supplemental jurisdiction in order to overcome lack of:
- AIC in Diversity
- Complete Diversity in Federal Question
- AIC in Federal Question
When a plaintiff asserts supplemental jurisdiction, it is called __________
Pendant jurisdiction
When a defendant asserts supplemental jurisdiction, it is called __________
Ancillary jurisdiction
What are the limits on supplemental jurisdiction for related claims asserted by defendants?
There are none
For what reasons might a federal court decline to exercise supplemental jurisdiction?
- State law predominates
- Novel/complex issue of state law
- Federal court dismissed all claims over which it had original jurisdiction
- Other exceptional circumstances
What is the “Full Faith and Credit” rule?
Under Article 4, a judgment is entitled to full faith and credit even as to jurisdiction when the questions were fully and fairly litigated.
What is the question of personal jurisdiction?
Whether a defendant can be sued in the forum state
The standard for personal jurisdiction is the same in both __________ and _________.
Federal court
State court
What are the three types of personal jurisdiction?
- In personam
- In rem
- Quasi-in-rem
What is in personam jurisdiction?
Jurisdiction based on power over a particular defendant
What is in rem jurisdiction?
Jurisdiction based on the presence of property within the forum state
What is quasi-in-rem jurisdiction?
Jurisdiction based on a person’s interest in property located within the court’s jurisdiction. Limits recovery to the value of that property.
What test controls quasi-in-rem jurisdiction?
International Shoe
What are the elements of the International shoe test?
- Minimum contacts
- Fairness
What are the three questions for personal jurisdiction?
- Is there a traditional basis of jurisdiction?
- Is jurisdiction based on some long-arm statute?
- If the answer to (2) is yes, is the application of the long-arm statute constitutional?
What are the three traditional bases for personal jurisdiction?
- Physical presence
- Domicile
- Consent
When will physical presence lead to personal jurisdiction?
If defendant is present in the forum state at the time of personal service
What exceptions will mean physical presence is not sufficient for personal jurisdiction?
- Fraud
- Force
- Immunity based on presence as a witness for another judicial proceeding
What is transient jurisdiction?
PJ based on service to a nonresident defendant as she passes through the forum state
Even if a person is not ______, a state still has personal jurisdiction wherever the person is domiciled.
Physically present
Ex: if I ran away to California, MI would still have personal jurisdiction because that’s my home.
When does a party expressly consent to personal jurisdiction?
- Expressly waiving jurisdictional objections
- Expressly agreeing to jurisdiction by contract
A defendant can __________ without consenting to personal jurisdiction
Challenge personal jurisdiction via special appearance
When does a party implicitly consent to personal jurisdiction?
Statutes that confer personal jurisdiction over specific classes of defendants in particular circumstances
What is a long-arm statute?
Specifies when a state court may exercise personal jurisdiction over a particular defendant
How do you know if a long-arm statute meets due process?
Defendant has minimum contacts with the forum state so that the suit doesn’t offend fair play and substantial justice
What is purposeful availment?
A defendant has voluntarily reached out to the state, creating minimum contacts.
What are the schools of thought regarding purposeful availment in stream-of-commerce cases?
- Placing an object up for sale that someone in a forum state could buy means establishing sufficient contact.
- Sellers must directly contact a state somehow
- Intent to serve the US as a single market was sufficient
What does minimum contacts require?
- Purposeful Availment AND
- Foreseeability
When are minimum contacts foreseeable?
It must have been foreseeable that the defendant would be sued in the forum state
What are the elements of fair play and substantial justice in regards to International Shoe?
- Relatedness of contact and claim
- Reasonableness of jurisdiction
If a claim does not arise out of the defendant’s contact with the forum state, personal jurisdiction may still be found in these situations:
- Historically, if there was systematic and continuous contact in the forum
- Modern, where the defendant feels at home
If a claim does not arise out of the defendant corporation’s contact with the forum state, personal jurisdiction may still be found in these states:
- State of incorporation
- Principal place of business
A jurisidiction is reasonable - meaning there is fair play and substantial justice - for the purposes of minimum contacts based on these factors:
- Is the forum so inconvenient so as to put the defendant at a disadvantage?
- Could plaintiff obtain relief in another forum?
- Does the forum state have an interest in providing a forum because of its residents?
What is the notice requirement of personal jurisdiction?
Defendant must be given actual, reasonable notice under the circumstances
What options for service meet the notice requirement?
- Personal service
- Substitute service
- Service on authorized agent
- Service by publication
- Waiver by mail
- State law methods
What is substitute service?
Service
1. At usual place of abode
2. To person of suitable age and discretion who resides there
Service by publication is not usually sufficient unless:
- Plaintiff does not have defendant’s address (or a way to discover it)
- There is no surrogate to service the process on
- Published in a way that could effectively get notice to the defendant
A defendant properly waives her right to formal service of process if:
- Notice is mailed first class with prepaid postage to the defendant
- Defendant returns waiver within 30 days
What are the incentives for a defendant to waive formal service of process?
- They have 60 days to answer instead of 21
- Court won’t impose cost of service on defendant
- Does not mean giving up material objections to venue or jurisdiction
In federal court, the plaintiff may use methods of service allowed in states where:
- Federal court sits
- Service effected
Who can complete service?
Anyone who is not a party who is at least 18 years old
A federal court can allow service of process on a defendant located out of state only if _____________.
It is permitted under the state’s statutes and rules for extraterritorial service
When may there be service on a foreign corporation outside the US?
As long as it is not prohibited by international agreement
A person is immune from service of process in the following situations:
- In state to appear in other civil action
- Fraud or deceit
When does the internet create sufficient contact with a forum state?
- Active websites conduct business over the internet (Amazon, etc.), creating general jurisdiction
- Interactive websites designed to conduct business transactions create purposeful availment
- Passive websites that solely post information are not purposeful availment
What is the issue of venue?
Which federal court can the parties litigate before within a jurisdiction?
In diversity and federal question cases, venue is proper where:
- All defendants are domiciled OR a substantial portion of the claim arose
- There is SMJ over the claim AND
- There is PJ over the parties
If there are multiple defendants who reside in different districts within the same state, then venue is proper _______________
In any district where one of the defendants resides
A substantial portion of a claim arises in the state where:
- Substantial part of the events leading to the claim arose
- Substantial part of the property subject to the action is situated
If there is no district in which an action may otherwise be brought in a diversity case, _________ is proper
Any district where defendant is subject to PJ at the commencement of the action
If there is no district in which an action may otherwise be brought in a federal question case, _________ is proper
Any district in which a defendant can be found
For corporations, venue is proper in _____________.
Any state in which a corporation resides
There is a presumption in favor of _______ choice of venue
The plaintiff’s
If venue is transferred, the court must be somewhere with:
- Proper SMJ
- Proper PJ
- Proper venue
Even if the original venue is proper, the court may nevertheless transfer the case based on:
- Convenience to the parties
- The interests of justice
What public factors speak to the interests of justice?
- Court congestion
- Local interest in having controversies decided
- Unfairness of burdening citizens with jury duty
What private factors speak to the interests of justice?
- Access to evidence
- Availability of witnesses
- Cost of getting witnesses to forum
- Possibility of viewing related premises
- Forum-selection clause
If the original venue is improper, the court may either:
- Grant dismissal
- Order transfer if it is in the interests of justice
Transfer is a change of ________, not a change of ________.
Court
Law
What is the doctrine of forum non conveniens?
Allows a court to dismiss an action if a far more appropriate and convenient forum exists elsewhere
What are the requirements for forum non conveniens?
- Alternative forum exists
- Transfer is not possible
- The fact that a plaintiff might recover less is irrelevant
- Never applied if plaintiff is resident of current forum
Inequality of bargaining power between the parties may warrant giving less effect to ____________.
The forum-selection clause
A forum-selection clause in an international contract should _________.
Control absent a strong showing that it should be set aside
Cases originally filed in state court can be removed by the defendant only if __________.
The case could have originally been filed in federal court
Only __________ can remove an action to federal court
Defendants
Removal allows a defendant to __________ a plaintiff’s choice of forum.
Veto
In order to achieve removal when there is more than one defendant, there must be ________.
Unanimous consent
A defendant who files ___________ in state court will have waived her right to remove the case to federal court.
A permissive counterclaim
A defendant who files ___________ in state court will not have waived her right to remove the case to federal court.
A compulsory counterclaim
A defendant can only remove a state court case to which federal district court?
A federal district court that geographically embraces the state court.
Diversity cases cannot be removed when any defendant is a resident of _____________.
A state in which the action was brought
What happens if state claims fall under federal jurisdiction or federal claims fall under state jurisdiction?
All such claims should arise under federal court
What happens if you remove a state law claim that doesn’t fall under federal jurisdiction?
It should be severed and remanded to the state court.
Notice of removal must be filed within _________ after the defendant receives notice that a case is removable.
30 days
In a diversity case, removal can occur up to _______ after a claim is filed.
One year
What is the procedure for removal?
- Defendant files a notice of removal
- Notice is signed under Rule 11
- Defendant attaches all documents served on defendant
- Defendant copies all adverse parties
- Copy filed in state court
A motion to remand based on a defect must be made within ______ after _________.
30 days
Defendant files notice of removal
If at any time before final judgment, the federal court lacks _______, the case should be remanded.
SMJ
A defendant cannot appeal an order to ________.
Remand
What is the one issue of civil procedure that cannot be waived?
SMJ
What is the Erie doctrine?
A federal court relying on diversity jurisdiction must use substantive state law and procedural federal law.
What are matters of substantive law?
- Elements of a claim or defense
- Statute of limitations
- Conflict or choice of law rules
Under the Supremacy Clause, if there is a federal law conflicting with state law, the federal court must apply ___________.
The federal law
If a federal rule of civil procedure is arguably procedural, it ______________.
Is valid and will be applied
If you can’t tell if a law is substantive or procedural, use the following test:
- If the state law substantively determines the outcome, it is substantive.
- Does either federal or state court have an interest in seeing a rule applied?
- Don’t promote forum shopping
What is the Klaxon rule?
A federal district court sitting in diversity must apply the choice-of-law approach prevailing in the state in which it sits
What is a complaint?
The initial pleading by the plaintiff that starts a civil action and states the basis for the court’s jurisdiction
What elements must be included in a complaint?
- Statement of SMJ
- Statement of claim showing entitlement to relief
- Demand for relief sought
Modern statements of claim showing entitlement to relief must ____________.
Plead facts supporting a plausible claim
A plaintiff must serve the summons and complaint within _________ of filing the cause of action.
90 days
What special matters must be plead with particularity if they are to be raised at trial?
- Fraud
- Mistake
- Special damages
A plaintiff does not have to plead specifically and individually the performance of each and every _____________ to defendant’s performance.
Condition precedent
What does a plaintiff have to plead in regards to conditions precedent?
Generally that she complied with all conditions precedent; the defendant must prove which conditions the plaintiff did not perform
The defendant’s response to the plaintiff’s complaint is called ________
The answer
What is the structure of a defendant’s answer?
Defendant states in short and plain terms her defenses to each claim
What are responses a defendant can give to a specific allegation in a complaint?
- Admit
- Deny
- State lack of sufficient information to admit or deny
In order to deny an allegation, a party must ____________. Otherwise, ________.
Expressly deny it
The party admits the allegation
The defendant must plead ___________ in the answer or the defense will be waived
Affirmative defenses
What is a counterclaim?
A claim against opposing party
What is a permissive counterclaim?
A counterclaim that may be pleaded in the answer
What is a compulsory counterclaim?
A counterclaim that must be pleaded in the answer
What is a crossclaim?
A claim against a co-party
What is an impleader?
A defendant who believes that a third person is liable for all or part of the plaintiff’s claim against the defendant
What is indemnity?
A third party is liable for all of a plaintiff’s claim against a defendant
What is contribution?
A third party is liable for part of a plaintiff’s claim against a defendant
An answer must be provided within ________ of service of process.
21 days
An answer must be provided within __________ of waiver of formal service of process.
60 days
An answer must be provided within ________ of denial of a Rule 12 motion.
14 days
What is a Rule 12 motion?
A request for a court order
Motions can either be ____ or _____.
Granted
Denied
Describe a 12(e) motion for a more definite statement.
If a complaint is ambiguous, a defendant may move for a more definite statement.
What are the main Rule 12 motions?
b. Motion to dismiss
e. Motion for more definite statement
f. Motion to strike
When can a motion for a more definite statement be made?
Pre-answer only
A party can move to strike material in the complaint that is:
- Redundant
- Immaterial
- Impertinent
- Scandalous
A motion to dismiss can be based on:
- Lack of SMJ
- Lack of PJ
- Improper venue
- Insufficiency of process
- Insufficiency of service of process
- Failure to state a claim
- Failure to join indispensable party
When must a motion to dismiss based on lack of SMJ be raised
At any time
When must a motion to dismiss based on lack of PJ be raised
First response by defendant
When must a motion to dismiss based on improper venue be raised?
First response by defendant
When must a motion for insufficiency of process be raised?
First response by defendant
When must a motion to dismiss for insufficiency of service of process be raised?
First response by defendant
When must a motion to dismiss based on failure to state a claim be raised?
Any time during trial
When must a motion to dismiss based on failure to join a necessary party be raised?
Any time during trial
Amendments to pleadings allowed once as a matter of course when:
- Within 21 days of serving the pleading
- 21 days after service of a responsive pleading/pre-answer motion
The Supreme Court has indicated that amendments should be allowed unless they result in some form of ________.
Injustice
What kinds of injustice does the Supreme Court want to avoid by allowing amendments?
- Undue delay
- Bad faith
- Repeated failure to cure defects by amendment
- Undue prejudice to the party opposing the amendment
If there is no right to amend, amendment may be granted by:
- Express consent
- Implied consent
- Over objection at trial
How does a party provide express consent to an amendment?
Written consent of the adverse party
How does a party provide implied consent to an amendment?
The issue is brought up at trial and no objection is made
What happens if a party objects to an amendment during trial?
The evidence is inadmissible because it is at variance with the pleadings
Even if there is an objection, the court has the discretion to grant leave to amend as long as:
- There is no display of delay or prejudice
- The party is given notice
- The party has the ability to litigate
What does relation back deal with?
Amendments that take place after the statute of limitations has run
What does “relation back” do?
Treats an amended pleading as though it was filed with the original pleading, thus avoiding statute of limitations problems
When will an added claim relate back to the date of the original pleading?
If the claim arises out of the conduct, transaction, or occurrence set forth in the original pleading
When will an amendment changing the defendant relate back to the original pleading?
- It concerns the conduct, transaction, or occurrence as the original complaint
- New party knew of the suit within 90 days of the original claim AND
- New party knew that they would have been named but for the mistake
What types of amendment could potentially relate back?
- Adding a new claim
- Changing the defendant
What does Rule 11 say?
Pleadings - other than discovery documents - must be signed by an attorney or unrepresented party
What does a signature accomplish on pleadings?
Makes the signor responsible for the truthfulness of the allegations contained
What responsibility does a signor on pleadings have?
Conduct an inquiry reasonable under the circumstances
By signing a pleading, a signor indicates that:
- There is no improper purpose
- The legal contentions are warranted
- Factual contentions have/will have evidentiary support
- Denials of factual contentions are warranted by evidence
A pleading is made for an improper purpose when its purpose is to:
- Harass
- Cause unnecessary delay
- Needlessly increase the cost of litigation
What is the punishment for violating Rule 11?
Sanctions against the party responsible for the violation
A sanction imposed under Rule 11 must be limited to __________.
What suffices to deter repetition of the conduct or comparable conduct by others similarly situated
When might Rule 11 sanctions be attorney fees or other expenses resulting from a violation?
If:
1. Imposed on a motion
2. Warranted for effective deterrence
A motion for sanctions must:
- Be made separately from any other motion
- Describe the specific conduct that allegedly violates Rule 11
- Be served on the other party
- Not be filed if the challenged pleading is withdrawn or corrected within 21 days after service
A party that has allegedly violated Rule 11 has _____ to either withdraw the document or fix the problems.
21 days
What is a sua sponte order?
On its own, the court may order a party or attorney to show cause as to why specific conduct doesn’t violate Rule 11
What makes a sua sponte order unique?
No 21-day safe harbor provision
A plaintiff may join all ________-
Claims she has against the same defendant
A plaintiff may join any party if:
- The plaintiff’s claims arise out of the same transaction/occurrence AND
- The plaintiff’s claims raise a common question of law and fact
Joinder may be defeated where the court lacks _____ over the joined claim
Subject matter jurisdiction
What is the test for whether events arise under the same transaction or occurrence for the purposes of joinder?
Logically related events entitling a person to institute a legal action against another
What is compulsory joinder?
When some parties are required to be joined to the case because they are indispensable to the parties
Parties must be joined when:
- The court cannot afford complete relief without the party
- The missing party’s interests would be harmed or impaired
- The missing party’s claims would subject the party to multiple liability
___________ are not necessary parties
Joint tortfeasors
What happens if joinder would destroy diversity?
Court can dismiss/proceed without the party if it believes it can afford effective relief
What factors should the court consider if there is failure of joinder?
- Is there an alternative forum available?
- What is the actual likelihood of harm?
- Can the court shape relief to avoid harm?
What options are available to the court when joinder fails?
- Dismissal
- Proceed without the necessary party
If an action is dismissed for failure of joinder, the party is referred to as _____________.
Indispensable
When does a counterclaim become compulsory?
When it aarises out of the same transaction or occurence
If a compulsory counterclaim is not pleaded in the answer, the claim cannot ___________.
Be pleaded by the defendant in another action
Compulsory counterclaims automatically fall within _____________.
Supplemental jurisdiction
If defendant has counterclaims that arise out of a different transaction/occurrence, she may ____________.
Assert permissive counterclaims in another action
A crossclaim against a co-party must _________.
Arise out of the same transaction or occurrence
A crossclaim is always _________
Permissive, not compulsory
Crossclaims fall within _______ jurisdiction because _____________.
Supplemental
They arise out of the same transaction or occurrence
In order to implead a third party, a defendant must ________; they cannot ________.
Claim derivative liability
Just blame the third-party defendant
A third party must be impleaded within ________ of answering the complaint.
14 days
What is intervention?
Occurs when an absentee third party wants to join a pending suit
Intervention will not be permitted if _________
It destroys diversity in a diversity case
A third party has a right to intervention when:
- The case’s outcome might impair the third party’s interest
- The applicant’s interest is not adequately represented
Anyone is permitted to intervene in an action if:
- There is at least one common question of law or fact
- Intervention would not create undue delay or prejudice
When is an interpleader used?
A stakeholder has property and two or more others claim ownership
What does interpleader do?
Forces all claimaints into a single lawsuit because the plaintiff doesn’t want to be exposed to multiple liability or inconsistency
What is the easiest form of interpleader?
Statutory interpleader
What are the jurisdiction requirements for statutory interpleader?
- Only one claimant must be diverse from one other claimant
- AIC requirement: $500 or more
Venue for statutory interpleader is found _______.
In any district where any claimant resides
Service of process for statutory interpleader may occur _______
Nationwide
What is the most unique element of statutory interpleader when it comes to civil procedure law?
Plaintiff must deposit the disputed money or property or give bond for the sum to the court registry.
What makes a Rule 22 interpleader different than a statutory one?
Rule 22 interpleaders use all normal rules of civil procedure
How big must a class be in order to be too numerous for joinder, thus qualifying for a class action suit?
25 is too few
40 is enough
In between is a grey area.
What are the requirements for a class action lawsuit?
- Class is too numerous for joinder to be practical
- Questions of law or fact common to the class
- Claims/defenses of representative parties are typical
- The representative will fairly and adequately protect the interests of the class
The adequacy of representation in a class suit involves the following test:
- Interests are closely aligned so as to ensure fair representation of other class members
- Class counsel is experienced and qualified to carry out litigation
What are the three types of class actions?
- Anti-prejudice
- Injunctive & declaratory relief
- Damage
Which type of class action suit can be opted out of?
Damage
Why are anti-prejudice class actions allowed?
- Inconsistent adjudications would establish different standards
- Limited funds would create a race to seek relief
Why are injunctive and declaratory relief class action suits allowed?
Class was treated the same by the defendant
What is the goal of an injunctive and declaratory relief class action?
Change behavior, not provide compensation
What is the requirement for injunctive and declaratory relief class actions?
Defendant’s conduct need only be generally applicable to the class, not that the conduct be damaging to every member
When would a damage class action suit be used?
All members claim they have been damaged by the defendant by the same conduct in the same way and are entitled to monetary relief.
What are the characteristics of a damage class action?
- Questions of common fact or law predominate
- Class action would be superior to other available methods for fair and efficient adjudication
For which type of class action suit is notice mandatory?
Damage class action suit
What type of notice must the court use in damage class action suits?
Best notice practicable to all members who can be identified through reasonable effort
What must notice accomplish in a damage class action suit?
- Members know ability to opt-out and sue on their own
- Members understand binding nature of class action if they choose not to opt out
Who pays for notice in a class action suit?
The representative of the class
A court is required to ______ a case to proceed as a class action.
Certify
When must a court certify a case in a class action?
At the earliest practical time
When it certifies a case in a class action, a court must define:
- The class
- Its issue
When it certifies a case in a class action, a court must appoint ______.
Class council
In a class action, certification may be _____ or _______ any time before final judgment.
Altered
Withdrawn
In class actions, PJ must be found for ______
Only the defendant
In order to satisfy diversity SMJ in a class action, ____________ must be diverse from all defendants.
Only the representative of the class
What is CAFA?
Statutory grant of subject matter jurisdiction over class action suits
What does CAFA stand for?
Class Action Fairness Suit
When will CAFA give a federal court SMJ?
- Any member of the class is diverse from any defendant
- AIC exceeds $5M
A district court must decline jurisdiction under CAFA if:
- More than 2/3 of proposed class members are citizens of state where action is filed
- Primary defendant is a citizen of the state where the action. is filed
- Principal injuries occurred in the state where the action was filed
A district court may decline jurisdiction under CAFA if:
- More than 1/3 but less than 2/3 of proposed class members are citizens of state where action is filed
- Primary defendants are also citizens of state where action filed
What is required if there is a settlement in a class action?
- Court approval after a fairness hearing
- Reasonable notice to all members who would be bound
In some cases, a court may refuse to approve a settlement in a class action unless __________.
The settlement allows class members to be excluded so as to preserve their right to suit
How are attorneys’ fees handled in class actions?
Fixed by the court to protect absent members.
Generally, what evidence falls within the scope of discovery?
Anything nonprivileged and relevant to claim or defense and proportional to needs of the case
Information within the scope of discovery need not be ________ to be discoverable.
Admissible in evidence
What is Rule 26(a) in regards to discovery?
A party must provide a copy or description of “all documents… that are relevant to disputed facts alleged with particularity in the pleadings.”
What happens if a party fails to disclose information required by Rule 26(a)?
Cannot use that information at trial (unless the failure is harmless)
In regards to discovery, what happens if a matter is only generally relevant to the subject matter involved in the action?
The court could determine there is good cause for discovery
Why are personnel records discoverable?
Court must balance the interest of the party seeking discovery against any infringed-upon privacy interest
How can a party remove privileged material from discovery?
Objecting with particularity
What is the work product doctrine?
Protects materials prepared in anticipation of litigation from discovery by the opposing counsel.
Who can generate work product?
Anyone; it doesn’t have to be a lawyer
What content is absolutely protected under the work product doctrine?
- Mental impressions
- Opinions
- Conclusions
- Legal theories
Even under the work product doctrine, witness statements might be discoverable if:
- There is a substantial need
- The information is not otherwise available without undue hardship
The following must be produced for discovery even if the opposing party has not explicitly requested the information:
- Initial disclosures
- Pretrial information
When must initial disclosures be made?
Within 14 days of the Rule 26(f) conference
What are initial disclosures?
- List of relevant witnesses
- Documents supporting claims or defenses
- Computation of damages
- Relevant insurance policy
What witness information must be provided during discovery?
- Name
- Address
- Telephone number
When is an insurance policy so relevant as to warrant inclusion in initial disclosures?
When the agreement could make an insurance company liable to satisfy all/part of a possible judgment
What pretrial information must be disclosed regardless of whether the opposing party asks for it?
Detailed information about trial evidence and witnesses that will testify
When should pretrial information be provided to the other party for discovery?
No later than 30 days before trial
When do discovery tools become available?
After Rule 26(f) conference
What is a deposition?
Out-of-court witness testimony used later in court
Who can be deposed during discovery?
- Parties
- Nonparties
A nonparty is not required to attend a deposition unless ___________.
The nonparty was subpoeanaed
No _______________ is required in order to depose. a party.
Subpoena
What is required in order to compel appearance for a party to be deposed?
- Notice
- Proper service
A party cannot take more than ______ depositions without court approval or party stipulation.
10
How many times can a party be deposed?
Once
How long may depositions be?
1 day of 7 hours
Why must a court allow additional time in a deposition?
- In order to fairly examine the deponent OR
- Any circumstance impedes or delays the examination
What is the maximum distance a nonparty can be required to travel?
100 miles from either residence or regular place of business
What types of experts can be deposed?
Trial experts whose opinion will be presented at trial
What types of experts cannot be deposed?
Consulting experts retained in anticipation of litigation
Can reports prepared by experts be discoverable?
Only if exceptional circumstances would make it impracticable to obtain the information in another way
A deposition can be used for any purpose at trial if:
- Deponent is an adverse party
- Deponent is unavailable at trial
What is an interrogatory?
Questions written by one party and sent to another party to answer
Interrogatories can never be used against ______.
Nonparties
How long does a party have to respond to an interrogatory?
30 days
An answer to an interrogatory must be ____ and ______.
In writing
Under oath
A party cannot serve more than _____ interrogatories without court approval or stipulation by the parties
25
What duty does a party have in regards to interrogatories?
A reasonable duty to investigate and find out the answers to the questions
What happens if a party’s response to an interrogatory relies on complicated business records?
The answering party can hand over records instead of going through the records herself
What is a request to produce?
- Requesting another party to produce physical material
- Requesting entry onto designated property for inspection
In order to make a request to produce from a nonparty, a ________ is required.
Subpoena
How long does a party or nonparty have to respond to a request to produce?
30 days of service
How can someone respond to a request to produce?
- Respond that the material will be produced
- State objection to request
A request to produce must be described __________
With reasonable particularity
When can early requests for production be served?
Prior to the 26(f) conference, but only after 21 days of service of the summons and complaint
When will a court order for a physical or mental health examination be required/issued?
On a showing that:
1. One party’s health is in actual controversy
2. There is good cause for examination
What is a request for admission?
A request by one party to another party to admit the truth of any discoverable matter
Requests for admission are commonly used to ___________.
Authenticate documents
Requests for admission can never be used against ___________.
A nonparty
How long does a party have to respond to a request for admission?
30 days
What responses can a party give to a request for admission?
- Admit
- Deny
- State lack of information
Disclosure that a party will use an expert must be made at least ________ before trial.
90 days
Limited purpose experts only need to be disclosed at least ______ before trial.
30 days
Written opinions by experts must include _________
- Any data used by the experts
- Expert’s qualifications
- Any publications authored by the expert within the last 10 years
Disclosures of experts must include a list of all other _______.
Cases they have participated in
Disclosure of experts must include a statement of the _________ the expert will receive.
Compensation
What happens if there are any mistakes in documents submitted by a party?
The party has an affirmative duty to correct material mistakes or admissions
A signature by counsel on a request for discovery certifies:
- Request is warranted
- There is no improper purpose
- The request is not unduly burdensome
What results in a protective order?
Objection that a request is overburdensome or involves trade secrets.
A party seeking sanctions against another party because they refuse to disclose requested information must show ________.
She made a good faith effort to obtain the information without the court’s involvement
If a party receiving a discovery request answers some requests but objects to others, and the court does not uphold those sanctions, what sanctions will be used?
- Motion to compel discovery AND
- Sanctions for total violation (available, not required)
- Recovery of costs
If a party receiving a discovery request fails to respond altogether, what sanctions will be used?
- Recovery of costs (required; the rest are optional)
- Contempt of court
- Order establishing facts
- Strike pleadings in whole or in part
- Disallow evidence
- Dismiss plaintiff’s case
- Enter default judgment
If a party totally violates discovery requests, certain sanctions require that the offending party was operating in bad faith. Which sanctions?
- Dismissal of the plaintiff’s case
- Enter a default judgment
Sanctions may be available when a party fails to take reasonable steps to preserve electronically-stored information that __________________, with the result that ________________.
Should have been preserved in the anticipation/conduct of litigation
The information is lost and cannot be restored or replaced through additional discovery
If failure to preserve electronically stored information results in prejudice to another party, that court may order __________.
Measures no greater than necessary to cure the prejudice
If the court finds that a party acted with the intent to deprive another party of the information’s use in litigation, the court may:
- Presume that the lost information was unfavorable to the party
- Instruct the jury that it may or must presume the information was unfavorable to the party OR
- Dismiss the action or enter a default judgment
Destruction or alteration of evidence is improper if ___________________
The destroying party has notice or should have known that the evidence is relevant to litigation
What do courts consider when determining sanctions for spoilation of evidence?
- Level of culpability of the spoliating party
- Degree of prejudice the loss of evidence has caused the other party
How many times can a plaintiff voluntarily dismiss her own case?
Once
How can a plaintiff voluntarily dismiss her case without prejudice?
By filing notice of dismissal before the defendant serves answer or moves for summary judgment.
What does it mean when a case is dismissed without prejudice?
The plaintiff is permitted to file her lawsuit.
What happens if someone files a lawsuit, withdraws it, files it again, and withdraws it again?
It is dismissed with prejudice this time
What does it mean if a case is dismissed with prejudice?
A plaintiff may not reassert her claim again.
What are the two ways that a plaintiff can move for voluntary dismissal?
- Plaintiff may be required to pay the defendant’s costs
- Filing a written notice of dismissal
When does dismissal occur involuntarily?
- Party fails to comply with a court order
- Party fails to pursue the action
- Motion to dismiss is granted
Involuntary dismissals operate as ___________
An adjudication on the merits
How can a plaintiff obtain a default?
By demonstrating to the clerk that the defendant failed to respond
What’s the difference between default and default judgment?
Default is a notation by a clerk
A default judgment is an actual result
A clerk can enter a default judgment under what necessary conditions?
- No response by the defendant
- Monetary damages are sought-after
- Plaintiff must give an affidavit of the amount owed by the defendant
- Defendant is not a minor or incompetent
What is an affidavit?
Voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths
Affidavits are made under the penalty of ________.
Perjury
The court may conduct a hearing regarding the damages upon _________ notice to the party against whom judgment is sought.
7 days
When is a default judgment rendered by a court entitled to preclusive effect?
As long as the court has SMJ and PJ over the action and parties
The defendant may obtain relief from default before default judgment by making a showing of:
- Good cause
- Viable defense
What happens if a defendant makes a motion based on failure to dismiss a claim?
- Court assumes everything alleged by the plaintiff is true
- Court determined whether or not P would win a judgment against D
When making a determination based on a failure to state a claim, the court will only look to ____________.
what has been alleged by the plaintiff in complaint; no evidence.
What makes a motion for judgment on the pleadings different from a motion to state a claim?
- It is made after the defendant has answered P’s complaint
- Court is allowed to consider evidence
A motion for summary judgment must be filed with _______.
Supporting evidence
A party bringing a motion for summary judgment must have:
- Conducted discovery and/or
- Submitted evidence to the court
A defendant on a claim may move for summary judgment by attacking ________.
Any necessary element of the plaintiff’s case
What evidence can a court consider on a motion for summary judgment?
Only admissible evidence
When considering evidence after a motion for summary judgment, the evidence should be viewed in the light most favorable to ________.
The non-moving party
What is the “no reasonable trier of fact” standard?
Summary judgment is proper where there is no triable issue of material fact and, after viewing the evidence in the light most favorable to the non-moving party, the court concludes that no reasonable trier of fact could find in favor of the non-moving party
A motion for summary judgment may be brought anytime up until _______ after the close of discovery.
30 days
An opposing party must file response within _______ of being served a motion for summary judgment.
21 days
A moving party for summary judgment may file a response to the opposing party’s response within ________.
14 days
Who is responsible for arranging a discovery plan?
- Attorneys of record
- All unrepresented parties that have appeared in the case
How long do attorneys and parties have to provide a written report of their discovery plan?
Within 14 days of a conference
What are the reasons for a pretrial conference?
- Expedite disposition of the case
- Help the court establish managerial control over the case
- Discourage wasteful pretrial activities
- Improve trial quality with thorough preparation
- Facilitate a settlement of the case
What may a judge/magistrate do in a civil pretrial conference?
- Clarify case issues
- Eliminate frivolous claims
- Admit evidence to avoid unnecessary proof
- Identify witnesses/documents
- Schedule pretrial briefs/motions
- Rule on pre-conference motions
- Schedule future conferences
- Discuss settlement
- Consolidate complex cases
What happens if no one appears on behalf of a party at a pretrial conference?
Court can sanction a party or their attorney
What happens after a pretrial conference?
Court issues an order reflecting the results of the conference. This order controls the case’s future course.
How can a pretrial order be amended?
- To prevent manifest injustice
- Issue is brought up at trial and there is no objection
What is a TRO?
Temporary restraining order
How long can a TRO last?
14 days
Why would a TRO be issued?
To prevent irreparable harm until the court can rule on a preliminary injunction
One extension may be tacked on to a TRO; how long can it last?
An additional 14 days
What is a preliminary injunction?
An equitable remedy enjoining a person from engaging in specified behavior or requiring specified behavior
What factors are considered for the granting of a preliminary injunction?
- Significance of threat of harm
- Balance between threat of harm and injury from injunction
- Probability of plaintiff’s success
- Public interest
Who can use a pre-judgment writ of replevin?
Movant who demonstrates:
1. Superior right to possession of personal property
2. Likelihood of success on the merits
Which amendment protects the right. toa jury trial in civil actions at common law?
Seventh
There is no right to a jury trial in civil actions at _______.
Equity
To preserve the right to a jury trial, the party must demand in writing no later than _______ after being served with ___________.
14 days
Last pleading raising questions of law
What is a civil action involving law & equity?
Plaintiff is seeking damages and injunctive relief
In a civil action involving both legal and equitable remedies, juries may decide __________.
Only questions of law
What is the minimum amount of jurors needed?
Six
What is the maximum amount of jurors allowed?
Twelve
When a jury makes a decision, unless the parties stipulate otherwise, the verdict must be ________.
Unanimous
What do equal protection requirements demand of a jury?
Jury is selected from a representative cross-section of the community
Equal protection requirements do not apply to ________.
Individual juries
What are the due process requirements of juries?
The method used to select a jury is fair and impartial
What is voir doire?
The process by which prospective jurors are questioned about their backgrounds and potential biases
In federal court, ___________ conducts voir doire
The judge
How many preemptory challenges does a lawyer have?
Three
What is the primary limit on preemptory challenges?
Exclusion based on race/gender is unconstitutional
A lawyer has an unlimited number of ________ exclusions.
For cause
If an action is tried on the facts without a jury, what changes?
The court must find facts specifically and state its law conclusions separately
In granting or refusing an interlocutory injunction, the court must state ___________
The findings and conclusions that support its action
Does the court need to state findings or conclusions when ruling on a motion under Rule 12?
No
If a court makes a decision without a jury, a party may later question _______________.
- The sufficiency of evidence supporting findings
- Whether or not the party:
a. requested findings
b. objected to findings
c. moved to amend findings
d. moved for partial findings
Findings of fact must not be set aside unless _________.
Clearly erroneous
A motion for judgment as a matter of law is also known as a ____________.
Directed verdict
A motion for judgment as a matter of law takes the case away from _________.
The jury
When will a motion for judgment as a matter of law be granted?
If no reasonable person could differ as to the outcome of the trial
When considering a judgment as a matter of law, the evidence is viewed ___________.
In light most favorable to non-moving party
At what point in the process can a judgment as matter of law be issued?
- For defendant, after plaintiff has presented her case
- For plaintiff, after all evidence has been presented
What is the result of a judgment as matter of law?
Judge resolves and enters judgment
What is the determination of a renewed judgment as a matter of law?
No reasonable jury could have reached the verdict entered by the jury
The standard for a renewed judgment as a matter of law is _________.
No substantial evidence standard
How should evidence be viewed when considering a renewed judgment as a matter of law?
In light most favorable to the jury’s verdict
At what point in the process can a renewed judgment as a matter of law be sought?
- Party must have moved for judgment as a matter of law before the case goes to jury
- Within 28 days after judgment entered
A motion for renewed judgment as a matter of law may be filed together with _________
An alternate motion for new trial
A motion for new trial is easier than a motion for judgment as a matter of law because _______.
The judge is taking it away from this jury, not the jury
When may a motion for new trial be made?
Within 28 days of entered judgment
On what grounds can a motion for new trial be made?
- Prejudicial error
- Misconduct by judge, adverse party, jury, or juror
- Newly discovered evidence that couldn’t have been obtained earlier
- Erroneous jury instructions
- Verdict goes against weight of evidence
- Partial new trial
- Excessive or inadequate damages
If a judge thinks the award is excessive, the judge can __________.
Tell the plaintiff to:
1. Accept less
2. Face a new trial
A court may set aside a final judgment at anytime based on ________.
Clerical error
A court may set aside a final judgment within one year based on:
- Mistake or excusable neglect
- Misconduct by an adverse party
A court may set aside a final judgment within a reasonable time based on:
- Newly discovered evidence that could not be earlier obtained
- Judgment void
What types of verdict can a judge ask the jury to render?
- General verdict
- Special verdict
- General verdict with interrogatories
What is a general verdict?
The jury finds in favor of one party, as opposed to resolving specific fact questions
What is a special verdict?
The jury makes findings only on factual issues. These are submitted to the judge, who decides the verdict’s legal effect.
What is a general verdict with interrogatories?
General verdict accompanied by answers to written interrogatories on fact issues that bear on the verdict.
Where are cases appealed from the federal district court to?
The US Court of Appeals
What is the final judgment rule?
A case can only be appealed after a final judgment on the merits of the entire case in the lower court
A notice of appeal from final judgment can be filed within __________ of final judgment.
30 days
An appeal to SCOTUS may ve made within _____ of final judgment in the Court of Appeals.
90 days
When could a court direct entry of a final judgment of a specific claim?
If the court expressly determines there is no just reason for delay
What is an interlocutory appeal?
An appeal of a trial court ruling made before the trial has concluded
What interlocutory appeals are allowed as of right?
- Order denying arbitration
- Preliminary injunction
- Appointment of receiver
What is the interlocutory appeals act?
Grants the court of appeal discretion to review interlocutory orders in civil cases where the district judge states in the order that:
1. A controlling question of law is in doubt
2. Resolving the issue will materially advance litigation determination
A court of appeals must _____ to hear interlocutory appeals.
Agree
What is the collateral order doctrine?
Permits appeals of decisions that:
1. Are conclusive
2. Resolve important questions separate from the merits
3. Would render those questions unreviewable on appeal from final judgment
What kinds of issues might be subject to the collateral order doctrine?
- Double jeopardy defense
- State sovereign immunity under the 11th Amendment
- Government official qualified immunity
- Foreign sovereign immunity
- Absolute presidential immunity
The US Supreme Court has rejected any attempt to generalize what rule from the collateral order doctrine?
A rule permitting immediate appeal whenever the district court denied an asserted right to avoid the burdens of trial
The US Court of Appeals has the discretion to review an order granting/denying the certification of a class action within _______
14 days
What is a mandamus?
A writ from a superior court to compel a lower court or government officer to perform duties correctly.
What does a mandamus require?
A showing that the trial court decision:
1. is beyond its jurisdiction or
2. violated a mandatory duty owed by the trial court
What is a prohibition?
A writ issued by an appellate court to prevent:
1. A lower court from exceeding its jurisdiction
2. A nonjudicial officer/entity from exercising its power
What is the standard for reviewing questions of law on appeal?
De novo
What is de novo review?
Reviewing an issue anew, substituting the appellate court’s own judgment for that of a lower court
What is the standard of review for a question of fact?
Clearly erroneous
What is the “clearly erroneous” standard?
Appellate court must have definite and firm conviction that a mistake has been committed
What is the standard for reviewing mixed questions of law and fact?
Usually de novo, but findings of fact will stand unless they are clearly erroneous
What is the standard for reviewing evidentiary rulings and other discretionary matters?
Abuse of discretion
What are discretionary matters?
Matters of procedure, whether to admit certain evidence, etc.
When do issues of res judicata and collateral estoppel arise?
When there has been an earlier case
Both res judicata and collateral estoppel are _________.
Affirmative defenses
What does it mean for something to be an affirmative defense?
They must be included in the answer or they are waived
What is the governing law over res judicata and collateral estoppel?
Law of the system that presided over original action
The issues of res judicata and collateral estoppel will be applied even if __________.
The earlier case has been appealed
Preclusion does not include cases where ____________.
A plaintiff brings separate suits against alleged joint tortfeasors whose liability is joint and several.
What does res judicata do?
Where there is a final judgment on the merits, precludes re-litigating the claim
What are the elements of res judicata?
- Claim at issue must be related to same transaction or occurrence of a previous claim
- Must involve claim by the same claimant against the same defendant
- Previously litigated claim resulted in a final judgment on the merits
Res judicata requires a final judgment on the merits - except for:
Issues of:
1. Jurisdiction
2. Venue
3. Indispensable parties
4. Statute of limitations
Res judicata when the first case was won by the plaintiff is called _____
Merger
Res judicata when the first case was won by the defendant is called _____
Bar
What does the doctrine of collateral estoppel do?
Precludes the re-litigation of a particular issue
What are the five elements of collateral estoppel?
- Previously litigated issue of law or fact
- Actually litigated
- Final judgment on merits
- Issue essential to judgment in first case
- At least one party from previous litigation is present
Who is bound by the result in first action in res judicata and collateral estoppel?
- Parties
- People in privity with a party
- Nonparties who consent to be bound
- Nonparties in pre-existing substantive legal relationship with a party
- Nonparty assumed control of prior litigation
- Party seeks to relitigate through a proxy
- Special statutory scheme seeks to foreclose successive litigation by nonparties
Modernly, courts will allow _____ to use collateral estoppel against parties to a prior action.
Nonparties
What is non-mutual defense collateral estoppel?
P sues D1 and loses. P uses D2, who can argue non-mutual collateral estoppel.
When is non-mutual defense collateral estoppel permitted in federal courts?
If plaintiff had a full and fair opportunity to litigate the issue in the first case
When is non-mutual offensive collateral estoppel?
- P sues D1. D1 counterclaims and wins. D2 then argues collateral estoppel against P
- P sues D1 and loses because of contributory negligence. D2 sues former P, arguing collateral estoppel as to P’s negligence.
What factors are considered before non-mutual offensive collateral estoppel will be permitted in federal courts?
- Full and fair opportunity to litigate
- Multiple suits foreseeable
- P could not have joined original action
- No inconsistent judgments on the record
