Civil Procedure Flashcards
Personal Jurisdiction Application
Statutory: Must be either:
1. Present-TAG
2. Domiciled
3. Express or
4. Long arm statute
Constitutional: Must have sufficient minimum contacts under:
1. Contacts
Must show: Purposefully availed or knew or reasonably anticipated being hale into court there
- Relatedness
Must show either:
Specific jurisdiction: related to the contract or
General: at home - Fairness: Court will consider: if forum is gravely difficult and inconvenient, state’s legitimate interest, plaintiff’s interest, judicial efficiency, and furthering social policies
Notice
What: S& C
Who: anyone over 18 and not a party to action
When: within 90 days of filing complaint
How:
. Personal Service: process is given to the defendant personally anywhere
. Substituted Service: serving a substitute for the defendant, only 1) at defendant’s home, 2) suitable age and discretion and 3) that person must live there- babysitter-no, butler ok
. Service on Agent: if receiving service is within scope
. State Law Methods: by either laws where the federal court sits or where service is made are permitted- ex: some states allow by mail
. Business: Must 1) deliver to an officer e.g. president treasurer, or 2) method permitted by state where fed ct sits or service is to be made
. Minor/Incompetent: only by method permitted in state where service is to be made
. Foreign Country: method by international agreement like Hague agreement, or by the American court, law in foreign country, mail sent by the clerk of American court with signed receipt- cannot be by person must be clerk
. Wavier: d can waive if p sends notice with return service and 30 days to respond in US, effective when p files waiver with the court- DOES NOT WAIVE PJ
. Penalty for Nonwaiver: d must pay the costs of service and has less time to respond
. Proving service: process server files affidavit
. Other Documents: service of pleadings do not need formal service and upon agreement is allowed by email, if mail, MBR applies with extra 3 days to respond so 33
SM Jurisdiction: State Courts
General SMJ- can hear any type
Except: patent, bankruptcy, federal securities & antitrust
SM Jurisdiction: Federal Court
Limited to either:
1. Diversity
2. Federal Question
Diversity: Federal SMJ
. Litigants: citizens of different US states or citizen of US state and citizen of foreign country
. Must have diversity between plaintiffs and defendants at time of filing
. Domicile: in only one place at a time, requires 1) physical presence and 2) intent to make that place your home
. Corporation: citizen of any state or country in which it is 1) incorporated and 2) PPB- managers control business from- nerve center
. Unincorporated Association: takes citizenships of all its members (general and limited) may be a lot of states
. Decedents, Minors, Incompetents: state where they live not their representatives
. Class Actions: citizenship of the named representative
. Amount in controversy: exceeds $75,000
. Calculating amount: based on only the claim, not interests or costs, must be in good faith claim of amount unless clear that they cannot recover that amount under law
. Can win under $75,000 – judgment is irrelevant if the amount is first met
. Aggregation of Claims: adding claims to meet amount- all claims against a single defendant, does not have to be related to each other
. Joint Claims: use the total value of the claim, the number of parties is irrelevant
. Equitable Relief: if either test is met, amount in controversy is satisfied: 1) plaintiff’s viewpoint- is the relief of value to the plaintiff more than 75,000 or 2) defendant’s viewpoint- will it cost the defendant more than 75,000
. Exclusions from Diversity: federal courts will not hear actions for divorce, alimony, child custody, or actions to probate or estate
. Collusive Creation of Diversity: if sham transaction to create diversity will not be heard, but can make genuine changes of citizenship
Federal Question: Federal SMJ
. Claim must arise under federal law must have: Well Pleaded Complaint: the plaintiff’s claim must arise under federal law- is the p asserting a right under federal law
. Citizenship and amount are not relevant
Removal
. Defendant can choose to from state court to federal court- if improper the federal court will remand the case back to state court
. Must have SMJ or FQ- could have been filed in federal court
. Timing: no later than 30 days after service- file notice of removal in federal court with grounds for removal, notice to all parties and state court
. Joins in removal: all defendants must join to remove, if served at different times and the last person served has 30 days to file and other scan join after their 30 day limit
. PLAINTIFFS CANNOT REMOVE
. Limitations on Diversity of Citizenship:
1) If defendant is citizen of forum state- can still be on federal question
2) Should not be removed more than one year after the case was filed in state court- if d that was in forum state was voluntarily dismissed the other party can move to remove
. Removal Venue: embrace the court where the case was filed, Louisville filed in state, Western District for removal
. Remand: If p thinks the case should not be removed they have 30 days, unless improper removal bc of lack of SMJ, no time limit on remand
Supplemental Jurisdiction
. Must have a case in federal court already
Additional Claims
Step 1:
. Must have SMJ over additional claims
. Check for diversity or federal question, on essay question whether it could be heard by itself, then check for supplemental
. If they do not qualify for diversity or federal then apply supplemental
Step 2:
. Must arise from common nucleus of operative fact – if it arises from same transaction or occurrence, or factual overlap
. Cannot invoke supplement jurisdiction in diversity cases for supplemental claims for the plaintiff except when multiple plaintiffs and one does not meet the amount in controversy requirement
Discretionary Factors
. Court has discretion to dismiss if state law claim is complex or predominate
. If the claim that SMJ is based on is dismissed early in case
Erie Doctrine
. Whether to apply state or federal law
Application
1. Is there some federal law that conflicts with state law?
Yes: Apply federal law if valid (presumptively valid) under supremacy clause
No: step 2
2. If no federal law on point, must apply state law if substantive
Conflict of law rules, elements of claim or defense, SOL, tolling statutes of limitation, and standard for new trial bc jury’s damages was excessive
3. If no federal law, and issue is not substantive, judge considers:
. Outcome determinative: if applying would affect the outcome of the case
. Balance of interests: does either system have a strong interest
. Avoid forum shopping: would it cause parties to flock to federal court
Federal Common Law:
. Erie means no general federal CL
. Must apply state law for torts, contract, and property
. Use federal CL: international relations, admiralty, disputes between states, right to sue federal officer
Venue
. Proper federal court [do not apply to removal]: venue in any district where:
1) All the defendants reside
. Nuance: when d’s reside in different districts in the same state, can lay venue in either to satisfy the rule
2) Substantial part of the claim arose or a substantive part of the property is located
. Substantial part may be more than one district, contract- agreement & performance tort: manufacturing & injury
. Does not matter where the plaintiff resides
. If defendant outside of US, can be any district or other plaintiff
. Residence for venue: where they are domiciled, Business: any court where they are subject to PJ for the case
Transfer
. Goes from one court in a judicial system to another trial court in the same judicial system
. Transferor: original court
. Transferee: where the case is sent, must have proper venue and PJ over defendant, without waiver
. Exception: under Transfer Statute
1) Transfer Statute 1: When original federal district is PROPER ct can transfer to any, even if improper if 1) consent of all, and 2) convenience and the burden is on the transfer seeker. Factors include: public: what law applies, what jurisdiction would want to be burdened; private: convenience for defendants and evidence. Must apply law of transferor unless forum selection clause
Forum Selection Clause: fed law enforces the clause and then only public interest factors are considered and if transferred due to FSC, the transferee court will use their law
2) Transfer Statute 2: Original Federal District IMPROPER: ct may transfer in the interest of justice or dismiss- will usually transfer if possible, transferee will apply their own choice of law rules
Forum Non Conveniens
. If there is another court that is the center of gravity for the case, but is not in the same judicial system
. Invoke forum non conveniens, can stay or dismiss the case so the p will sue in the correct court
. Based on public and private factors as transfer
. Other court must be adequate and available and be able to provide a remedy
Pleadings: Complaint
. Filing that commences the action
. Contents:
1) Subject Matter Jurisdiction – not PJ or venue
2) Short and plain statement of the claim
3) Demand for relief sought
. Details: sufficient facts to support a plausible claim, may be challenged by 12b6 motion for failure to state a claim- Twombly & Iqbal
. Fraud: must have particularity and specificity
Pleadings: Response
. By motion or answer within 21 days of service- or 60 days if waived service
. Motions, not a pleading:
Form:
. 12e: motion for more definitive statement
. 12f Motion to strike and remove redundant and immaterial things from pleading
Waivable Defenses Under Rule 12(b): must raise or lose immediately
. Lack of PJ
. Improper Venue
. Improper Process
. Improper Service
Can be Raised Later
. Failure to state a claim [trial]
. Failure to join an indispensable party [trial]
. Lack of SMJ [appeal]
Denial of Rule 12 Motion to Dismiss
. Must Serve answer no later than 14 days after notice of denial
Pleadings: Answer
. Respond: Answer is a pleading, must:
1. Admit: some or all allegations
2. Deny: some or all allegations, failure to deny is an admission except for damages
3. Insufficient Knowledge
. Raise Affirmative Defenses
. Examples: SOL, SOF, res judicata and self-defense
. Rule 12 (b) defenses
. Plaintiff does not have to respond
Pleadings; Amendments
1) Plaintiff: right to amend once no later than 21 days after rule 12 response
2) Defendant: once 21 days after serving it, may include omitted 12(b) waivable or affirmative defenses
Right to Amend after Expiration:
3) Leave of court: must seek leave of court or writing agreement by defendant if justice so requires
4) Variance: when evidence at trial does not match the pleaded claim
5) Relation Back: SOL has run so you can join a claim not originally asserted if it is the same conduct, transaction or occurrence.
If you want to change a defendant not just add claim must: 1) concerns same conduct/transaction, 2) d had knowledge of case; and 3) should have known but for mistake they would have been sued
Example: Only time applied: Accidentally sued wrong person and the right person knew about it- Plaintiff is injured in Sam’s Store. He sues “Sam Store, Inc.” before the statute runs and has process served on Sam within 90 days. Plaintiff should have sued “Samco Ltd.” Sam is the president of Samco Ltd. and is authorized to receive service. Plaintiff discovers the problem after the statute runs, and seeks leave to amend to name Samco Ltd.
Supplemental Pleadings
. Event that happens after the pleadings are filed- so not supplemental
. No right- at discretion of court
. Make motion to file a supplemental pleading
Pleadings: Signature Requirement
. Rule 11 that certifies:
1) Paper is not for improper purpose
2) Warranted by law or nonfrivolous argument for a law change and
3) Evidentiary support will have factual contentions after investigation
. Continuing Certification: Not just on pleadings: any time your present a position to the court
. Sanctions: deter conduct of violations against the lawyer, and their firm, must give opportunity to be heard, may be sue sponte
. Types of Sanctions: monetary or nonmonetary- professionalism classes
. **Safe Harbor Provision: party violates, other party cannot immediately file- must draft and give to other party to correct, for 21 days, if not corrected they can file
Joinder
. Define scope of case and how many parties can be joined
. To have joinder, must:
1) Be allowed be allowed by federal rules
2) Must have SMJ
Claim Joinder by Plaintiff
. Easy bc p may join any additional claims even if they are not related to the original claim
. Must still be SMJ
Proper Plaintiff & Defendants
. Can join multiple plaintiffs/defendants if you have SMJ and
1) Arise from the same transaction or occurrence and
2) Raise at least one common question of law or facts
Necessary & Indispensable Parties
. Court may force an absentee that was not an original party, ask:
1) Is the absentee required
2) If they are required, can they be joined
3) If they cannot be joined, can the case proceed without them
. Court forces because the absentee is required which means that either
. Without the absentee, the court cannot give complete relief without multiple suits; or
. *The absentee’s interest may be harmed if not brought in
. The absentee claims an interest that subjects a party—usually d—to a risk of multiple obligations
*Note: joint tortfeasors are never necessary
Example: You hold 1,000 shares of stock in XYZ Corp. Rich claims that he and you bought the stock jointly and that he paid for half the stock. Rich sues XYZ Corp., seeking to have your stock canceled and the stock reissued in the joint names of you and Rich. Are you necessary? Yes. You probably meet all three tests for necessary. Which one is clearest? Absentee’s interest may be harmed if not brought in
Can Absentee Be Joined
. Feasible if:
1) There is PJ over the absentee and
2) There will be federal SMJ over the claim- court will consider if absentee is coming in as a plaintiff or defendant and whether diversity is an issue
. Not feasible, then: the court must determine to proceed without the absentee or dismiss based on factors like- alternative forum, likelihood of harm, relief to avoid harm
. Indispensable- if the court chooses to dismiss instead of proceed. Otherwise they are considered required/necessary which just means that it is necessary or required to join them if feasible
Counterclaims: Joinder by Defendant
. Claim against an opposing party, usually part of d’s answer
. P must respond within 21 day under rule 12
. Compulsory Counterclaims: arises from same event as the plaintiff’s claim and must file the counter or they lose it-do not have to if you were not required to answer bc of case being dismissed
. Permissive Counterclaims: does not arise from same t/o and party is not required, but is allowed to, file it in the same case
. APPLICATION: Need SMJ, so discuss whether diversity, FQ, or SMJ
Cross Claims: Joinder by Defendant
. Claim against a co-party
. Must arise from same t/o as underlying action
. Not compulsory, can have its own case
Impleader: Joinder by Defendant
. Where the defending party brings in a new party (TPD)third party defendant
. Nature: shifts the liability to the TPD to pay part of the defendant’s liability
. Indemnity: shifts liability completely so TPD covers whole claim
. Contribution: shifts it pro-rata so TPD covers a portion
. Permissive: may bring it in current or new case
. Process to Implead: must within 14 days
1) File a third-party complaint naming the TPD
2) Have the complaint formally served
. TPD & Plaintiff may assert claims- once joined may assert cases against each other
. SMJ: must access each claim separately for SMJ
. Is there SMJ- diversity, FQ and over 75,000
. Is there Supplemental jurisdiction
Common Nucleus Test
. Does the Supplemental limitation in diversity cases apply?
Only takes supplemental jurisdiction by plaintiff
Intervention
. Absentee brings themselves into the case
. May come in as P or D and court may realign if they believe they are on the wrong side
. Types of Intervention
1) Intervention of Right: absentee may be harmed if not joined, and interest is not represented by current parties- same test as required parties
2) Permissive Intervention: if absentee’s claim or defense would have at least one common question of law or fact, it is permissive and discretionary with court, who will usually allow unless delay or prejudice
. SMJ: assess whether claim is allowed, but this is claim by plaintiff so thee limitation on supp. Jurisdiction may apply
Interpleader
. Rarely on exam: Applies if separate actions might result in double liability against stakeholder, permits stakeholder to require 2 or more adverse claimants to litigate among themselves to determine who has the valid claim to sue stakeholder- 2 types:
1) Rule 22 Interpleader: requires complete diversity between stakeholder and all adverse and in excess of 75,000, or a FQ, normal service and venue
2) Statutory: requires diversity between any 2 claimant and $500 in issue
Class Action
. Representative sues on behalf of a group
. Must meet all:
1) Numerosity: too many class members for joinder
2) Commonality: some issue in common to all
3) Typicality: claims are typical
4) Representative Adequate: fairly and adequately represent the class
. If they meet all above pick type:
1) Type 1: Prejudice- rare- class treatment is necessary to avoid harm- if fund of money, unfair to sue individual bc tit will deplete
2) *Type 2: injunction of declaratory judgment be the D treated class members alike- employees are not allowed vacay time
3) **Type 3: Common/Damages Question: must 1) have common question predominate over individual questions and 2) class action is superior method to handle dispute- 80 people on a bus crash- question that d is liable is common question **Notice
. Court must certify class: they must define class and appoints class counsel to fairly and adequately represent the interests of the class
. Notice to Class: in type 3: the court must notify class members to all they are in a class, usually by mail, paid by rep, must include: they can opt out, bound by judgment, can have separate appearance
. Opt Out: only in Class 3, not able to opt out in 1 or 2
. Settlement: only with court approval, must notify class and get feedback. If type 3 may reuse to settle unless another opt out is given
. SMJ: only class citizenship of class rep is considered, so long if class rep meets diversity and over 75,000- good to go
. CAFA: grants SMJ from diversity if 1) 10 members, 2) any class member is of diverse citizenship from any defendant, and 3) aggregated claims of class exceed 5 million. Any defendant may remove to federal court
. Local Actions: provisions to ensure local classes from a specific area will stay in state court
Discovery: Initial Required Disclosures
. Must disclose without request, without other stipulation must disclose within 14 days of Rule 26(f) conference
. Identity of people with discoverable information to support claims or defenses and topics they know if using info, if not using to support, do not have to give
. Documents & tangible evidence to support claims or defenses- photos, records, ESI- must be in party’s control
. Computation of Relief w/Supporting Documentation: must provide a computation of relief with supporting docs
. Insurance Coverage: must disclose that might cover all or part of judgment in the case- even if not admissible in trial
. Penalty for nondisclosure: cannot use material unless justified or harmless
Discovery: Expert Witnesses
. Later in case, parties must identify experts and reports they are using including: opinions, bases for the opinions, facts used to form, qualifications and compensation- NOT EARLIER drafts of report- work product
. Consulting Experts: not testifying- do not need to disclose
. Deposition: subpoena and compel EW bc otherwise they will not show up, opposing party bears cost of depo, court will set fee
. Failure to Disclose- cannot use in case unless justified or harmless
Discovery: Pretrial Disclosures
. No later than 30 days
. Trial Evidence: identity of witnesses, documents for admissibility
Discovery Requirements
. Parties may request information after Rule 26 conference- except with requests to produce is after 21 days of service—cost is on the responding party
. Signature Requirement for Discovery: parties sign, rule 11 does not apply—other rule if for this and state it is warranted, not interposed for improper purpose and not unduly burdensome
. Duty to Supplement: if new facts come to light must supplement
. Scope: a party can discover anything relevant to a claim or defense and proportional to the needs of the case -may be harmful to you but might not be admissible
