Civil Procedure Flashcards
1
Q
What is personal jurisdiction?
A
Determines the court’s power over the parties involved in the case.
-Court automatically has power over P, who filed
-Question is whether D has sufficient contacts with forum state so that exercise of PJ is fair and reasonable.
2
Q
What is the two-step analysis for PJ?
A
- Does the exercise of PJ fall within a state statute?
- Does exercise of PJ satisfy the Constitution?
(Analysis in federal court is the same as in a state court)
3
Q
What are long-arm statutes?
A
State statutes that grant a state PJ over nonresidents who perform or cause certain things within the state. May align perfectly with the constitutional analysis or have a laundry-list of actions.
4
Q
What is the constitutional step of the PJ analysis?
A
Ask if the defendant has such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice. Factors in the test are: contact, relatedness, and fairness.
5
Q
How do you analyze the contacts in PJ?
A
There must be relevant minimum contacts between D and the forum state. This comes down to purposeful availment (a voluntary act targeting the forum) and foreseeability (that D could be sued there)
6
Q
How do you analyze relatedness in PJ?
A
Ask if P’s claim arises from or relates to D’s contact with the forum. If yes, then there is specific PJ. If no, then you must determine if there is general jurisdiction.
7
Q
What is general jurisdiction?
A
Arises when D is at home in the forum state.
- Individuals: where they are domiciled (or if they are served with process in the state)
- Corporations: where corporation is “at home,” i.e. where it is incorporated and where it has its principal place of business
8
Q
When do you analyze fairness for PJ?
A
For specific PJ only - whether PJ would be fair/reasonable under the circumstances. Consider:
- burden on D and witnesses
- forum state’s interest
- P’s interest
9
Q
What is notice?
A
Makes D aware of suit against them. Must be “reasonably calculated, under all the circumstances,” to apprise interested parties of the action.” Must be given a summons and a copy of the complaint.
10
Q
Who can serve process?
A
Anyone who is at least 18 years old and not a party to the action.
11
Q
When must process be served?
A
If in the United States, within 90 days of the filing of the complaint.
12
Q
How is process served to individuals in the US?
A
-Process given to D personally at any location;
-Substituted service (1) at D’s place of residence (2) with someone of suitable age and discretion (3) who resides there;
-With D’s agent if receiving service is within scope of agency; OR
-In accordance with the law of the state where the federal court sits or where service is made
13
Q
How do you serve a business or organization in the US?
A
-Deliver to an officer of the company OR
-Use a method permitted by the state where the federal court sits or where service is made
14
Q
How does waiver of service work?
A
P mails D a notice and request to waive service. If D executes and mails the waiver form to P within 30 days (or 60 days if outside the US), they waive service of process.
If service is waived, it is effective as of the date P filed the waiver in court.
If D does not waive, they have to pay the costs of service.
15
Q
When is a party immune from service?
A
If D goes to the state to appear as a party, witness, or attorney in a different civil case in that state.
16
Q
What is SMJ?
A
A determination of the court’s power over the case. State courts have general SMJ, while federal courts are limited in the type of cases they can hear.
17
Q
Can a lack of SMJ be waived?
A
No - the judgment is void if the court hears the case.
18
Q
What are the two types of SMJ?
A
Federal question and diversity of citizenship.
19
Q
What are the requirements for diversity/alienage SMJ?
A
- Case is between citizens of different US states OR a citizen of a US state and a citizen of a foreign country AND
- Amount in controversy **exceeds ** $75,000
*Alienage does not work if the alien is a green card holder domiciled in the same state as a party on the other side of the case.
20
Q
When does complete diversity not exist?
A
If any plaintiff is a citizen of the same state as any defendant, as determined when the case is filed.
21
Q
What is the citizenship of a natural person?
A
The one US state where they are domiciled. They must have (1) physical presence in the state and (2) the intent to make that place their home indefinitely.
22
Q
What is the citizenship of a company?
A
-Incorporated: any state where it is incorporated and the one state where it has its principal place of business (nerve center)
-Unincorporated: the citizenships of all of its members
23
Q
What citizenship do you use for representatives and class actions?
A
-Representatives: the citizenship of the person they are representing (the minor, decedent, or incompetent)
-Class actions: citizenship of the named representatives
24
Q
How do you calculate the amount in controversy?
A
What the plaintiff claims in good faith in the complaint, unless it is clear to a legal certainty that they cannot recover more than $75,000
25
Can you aggregate claims to meet the amount in controversy requirement?
Yes, any single plaintiff may aggregate all claims against a single defendant, even if unrelated.
26
In equitable actions, how do you determine if the amount in controversy was satisfied?
Look at either:
-P's POV: did they request relief that has a value of more than $75,000 to the plaintiff?
-D's POV: if granted, will the relief requested by P cost D more than $75,000?
27
Is it permissible for P to act to create diversity?
P cannot undertake a sham transaction to create diversity, but they can voluntarily change their state citizenship before the case commences to do so.
28
When is there federal question jurisdiction?
When P's claim arises under federal law. The claim itself must arise under federal law (so ask if they are enforcing a federal right)--simply raising a federal issue in the complaint is not enough.
29
What is removal?
Defendant can remove a case from state to federal court if the case could have been filed in a federal court (i.e., there must be federal SMJ - if there is not, it will be remanded to state court).
30
How is removal effectuated?
Defendant files a notice of removal in federal court stating the grounds. Then, D promptly serves copy of the notice of removal on adverse parties and files a copy of the notice of removal in state court. This must occur no later than 30 days of service of the first paper that shows the case is removable.
31
Who can remove, and who must join the removal?
All defendants who have been served must join (earlier-served Ds can join in removal of a timely later-served D even though their own 30-day period has expired).
**Plaintiffs cannot ever remove, even if D files a counterclaim against them.**
32
What are the two limitations to removing cases based on diversity of citizenship?
1. Case should not be removed if any D is a citizen of the forum state
2. Case should not be removed more than one year after the case was filed in state court.
33
What is the removal venue?
The federal district court embracing the state court where the case was filed, regardless of whether it would have been a proper venue under the venue statutes.
34
How must P remand the case back to state court?
Move to remand no more than 30 days after the filing of the notice of removal. If, however, removal was improper because of a lack of SMJ at the federal court, there is no time limit on ordering remand.
35
What is supplemental jurisdiction?
It gets claims into a federal case, even though the claims cannot use diversity or FQ SMJ. The case must already be in federal court with federal SMJ, and the claim must arise from the same common nucleus of operative fact.
36
What are the limitations on the use of supplemental jurisdiction in diversity cases?
DIVERSITY ONLY: claims by plaintiffs generally cannot invoke supplemental jurisdiction EXCEPT in cases where there are multiple plaintiffs, diversity of citizenship is met, and the claim by one of them does not meet the amount in controversy requirement. There is really only one fact pattern that will trigger this.
37
Must the court hear a claim that qualifies for supplemental jurisdiction?
No, the court has discretion to decline it, typically in situations where the claim on which federal SMJ is based is dismissed early in the litigation.
38
What is the Erie doctrine?
In a diversity action, determines whether the court will appl state or federal law to the issue.
39
What are the steps to an Erie analysis?
1. Is there some federal law on point that directly conflicts with state law (FRCP if arguably procedural, FRE, Const.)? Apply that law, so long as it is valid.
2. If there is no federal law on point, apply state law if issue is "clearly substantive." This includes issues on conflict of law, elements of claims/defenses, statutes of limitations, rules for tolling of SoL, and standard for granting new trial because of excessive/inadequate jury damages.
3. If there is no federal law on point and issue is not clearly substantive, determine whether the issue is substantive. Weigh outcome determinative, balance of interests, avoiding forum shopping.
40
There is no general federal common law, but in what areas do federal courts make up common law on their own?
International relations, admiralty, disputes between states, right to sue federal officer for violating one's federal rights.
41
What is venue?
Determines in which federal district a suit should be brought to federal court.
42
Where is venue proper?
Any district where:
-all defendants reside* OR
-a substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located.
*If Ds reside in different districts of the same state, venue is proper where one of them resides.
43
Where do defendants reside for venue purposes?
-Human: in federal district where domiciled
-Business: in all districts where it is subject to PJ for the case
44
When is transfer proper?
Transfer is from one trial court in a judicial system to another trial court in the same judicial system. The transferee must be a proper venue and have PJ over the defendant. If all parties consent, court can transfer to any district if there is cause for the transfer.
45
If original district is proper, how does transfer work?
Court can order transfer based on convenience of parties and witnesses and in the interests of justice. Burden is on the person seeking transfer, and court will consider public and private factors.
Transferee court must apply choice of law rules of transferor court.
46
When does federal law enforce forum selection clauses?
When they are not unreasonable. When there is a valid FSC, only public interest factors are considered for transfer. When transfer is to enforce valid FSC, transferee court will apply its own choice of law rules.
47
How does transfer work when the original venue is improper?
The court may transfer in the interest of justice or dismiss. The transferee court will apply its own choice of law rules and not the choice of law rules of the transferor court (to prevent P from benefitting by filing in an improper forum).
48
What is forum non conveniens?
When there is another court that is at the center of gravity for the case but the federal district court can't transfer because that court is in a different judicial system. Based on the same public and private factors.
49
What must a valid complaint contain?
-Statement of grounds of SMJ
-Short and plain statement of claim showing P is entitled to relief
-Demand for relief sought
Must plead sufficient facts to support a plausible claim, unless fraud, mistake, or special damages which require particularity and specificity.
50
How must D respond to a complaint?
By motion or by answer no later than 21 days after being served with process. If service was waived, then D has 60 days to respond.
51
What Rule 12(b) defenses are waived if not put in the first Rule 12 response (motion or answer)?
-Lack of personal jurisdiction
-Improper venue
-Insufficiency of process
-Insufficiency of service of process
52
What Rule 12(b) defenses are not waived even if they are not included in the first response?
-Failure to state claim and failure to join party (can be made as late as at trial)
-Lack of SMJ (can be raised at any time, including at appeal)
53
If a motion to dismiss under Rule 12 is denied, what must D do?
Serve answer no later than 14 days after notice of denial.
54
What must D do in the answer?
1. Respond to allegations
-Admit some or all allegations;
-Deny some or all allegations;
-State that they have insufficient knowledge to admit or deny (effect of denial, not an option if answer to allegation is in their control)
2. Raise affirmative defenses
*Failure to deny is admission
55
When does P have right to amend complaint?
One time, no later than 21 days after D serves first Rule 12 response
56
When does D have right to amend answer?
One time, no later than 21 days of serving it (can include the waivable defenses if forgotten the first time around)
57
When can parties amend after right to amend has expired?
Must seek leave or court (granted if justice so requires) or written consent of opposing party
58
What is variance?
When evidence at trial does not match what was pleaded, party introducing the evidence may move to amend the complaint to conform to the evidence.
59
When can parties amend after the SoL has run?
-If pleading concerns the same conduct, T/O as original pleading, relation back allows you to treat amended pleading as though it was filed when the original was filed.
-To change D, amendment will relate back if amendment concerned same conduct, T/O as original, D had knowledge of case and knew or should have known that they should have been named originally
There is no right to supplemental pleadings, which set forth things that happen after the pleadings were filed.
60
What is Rule 11?
Applies to all papers except discovery. When parties signs, they certify to the best of their knowledge and belief after reasonable inquiry that:
-paper is not for improper purpose;
-legal contentions are warranted by law or nonfrivolous arguments for law change; and
-factual contentions and denials have evidentiary support or are likely to after further investigation
Violation leads to sanctions to deter a repeat of the conduct, which can be raised by party or sua sponte. Monetary sanctions are paid to the court.
61
What is the Rule 11 safe harbor?
If other party violates Rule 11, they should be served a motion for sanctions but have a safe harbor of 21 days to fix the problem and avoid sanctions.
62
When can the plaintiff join parties?
The FRCP allows the plaintiff to join any additional claim they have against the adverse party, even if the additional claim is unrelated to the original (so long as both have SMJ).
63
When can there be multiple plaintiffs or defendants in a case?
When the claims (1) arise from the same transaction or occurrence and (2) raise at least one common question of law or fact.
64
When are absent parties necessary?
1. Without the absentee, the court cannot accord complete relief among the existing parties;
2. The absentee's interest may be harmed if they are not joined; OR
3. The absentee claims an interest that subjects a party to a risk of multiple obligations.
Joint tortfeasors are NEVER necessary.
65
When is joinder of necessary parties feasible? What if the absentee cannot be joined?
Feasible when there is PJ over the absentee and SMJ over the claim.
If the absentee cannot be joined, the court has to determine whether to proceed without them or dismiss the entire case.
66
What are the two types of counterclaims?
1. Compulsory - arises from same transaction or occurrence. Unless it has already been filed in another case, it is waived if not filed in the pending case
2. Permissive - one that does not arise from the same transaction or occurrence. It can be raised in a separate case if not filed in the current case.
SMJ is required for all counterclaims.
67
What is a crossclaim?
A claim against a co-party. It must arise from the same transaction or occurrence as the underlying action. Not compulsory.
68
What is impleader?
A third-party claim where a defending party brings a new party into the lawsuit. It is used to shift to the third party defendant the liability that the defendant will owe to the plaintiff (so triggered by claims for indemnity or contribution). It is permissive, so it need not be brought in the current case.
69
What is the impleader process?
1. File a third-party complaint naming the third party defendant AND
2. Have that complaint formally served on the third party defendant.
Right to implead for 14 days after serving answer; thereafter, court permission is needed.
70
What is intervention?
A nonparty absentee uses intervention to bring herself into the case as a plaintiff or defendant. Must be timely, and there are two subtypes:
1. Intervention of right - absentee's interest may be harmed if not joined and interest is not adequately represented by current parties (same test as necessary parties)
2. Permissive intervention - absentee's claim or defense and the pending case have at least one common question of law or fact (discretionary with court)
71
What is interpleader?
Applies if separate actions might result in double liability against a stakeholder. Permits a person/stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which, if any, has the valid claim to it.
72
What is a class action?
A case in which representatives sue on behalf a group. Requires numerosity, commonality, typicality, and adequate representation, and then the case must fall into one of three types of class actions
73
What are the three types of class actions?
1. Type 1: class treatment is necessary to avoid harm (prejudice) either to class members or to the non-class party.
2. Type 2: seeks an injunction or a declaratory judgment because D treated the class members alike (no money damages)
3. Type 3: Common questions must predominate over individual questions AND the class action is a superior method to handle the dispute.
74
When is notice required for a class action?
For Type 3 ONLY, the notice must reasonably identify members and let them know that they can opt out, will be bound by judgment if they don't opt out, and can enter a separate appearance through counsel.
75
Can you opt out of a class action?
You can only opt out of Type 3. Unless they opt out, all class members are bound by the judgment.
76
What does the Class Action Fairness Act do?
It grants SMJ separate from diversity jurisdiction, allowing a federal court to hear a class action if:
-there are at least 100 members
-any class member is of diverse citizenship from any defendant
-the aggregated claims of the class exceed $5 million.
Also allows any defendant to remove the case from state to federal court.
77
What are the initial required disclosures, and when must they be disclosed?
Within 14 days of the 26(f) conference, parties must disclose:
1. Identities of persons with discoverable information that the party may use to SUPPORT her claims or defenses
2. Documents and tangible things that the party may use to SUPPORT her claims or defenses (must be in the party's control)
3. Computation supported by documents of the amount sought
4. Insurance coverage that might cover all or part of the judgment
78
When must a party identify expert witnesses?
Must identify expert witnesses who may provide testimony at trial, not a consulting expert who is helping to prepare the case for trial (except in exceptional circumstances). The identity of the testifying expert witness and their written report must be disclosed to the other parties.
79
What is the penalty for failing to disclose material?
Cannot use the material or expert witness in the case unless the failure was justified or harmless.
80
When must the parties make required pretrial disclosures?
Must disclose information about trial evidence no later than 30 days before trial.
81
What are the primary discovery tools, and when can they be used?
Cannot be used until after the 26(f) conference absent court order or stipulation.
1. Depositions (parties and nonparties) - live testimony in response to questions by counsel based on present recollection
2. Interrogatories (parties only) - written questions to be answered in writing under oath based upon information reasonably available
3. Request to produce (parties) - asks party to make available for review and copying documents and things or to permit entry on designated property to inspect
4. Medical exam - court order required to compel, must show good cause and that the person's health is in actual controversy
5. Request for admission - written request that someone admit certain matters; failing to deny proper request is deemed admittance.
82
What is the signature requirement for discovery?
Rule 11 does not apply, but discovery requests and responses must be signed by counsel certifying that it is warranted, not interposed for an improper purpose, and not unduly burdensome.
83
What is discoverable?
Discoverable is not the same as admissible. A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case, including things harmful to the disclosing party.
84
What is work product protection?
Material prepared in anticipation of litigation, whether generated by a lawyer or not, is protected.
It can be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way (but opinion work product is never discoverable).
85
How does a party assert privilege or work product?
Claim the protection expressly and describe the materials in detail in a privilege log.
86
How are discovery rules enforced?
Party seeks protective order if discovery request subjects them to annoyance, embarrassment, undue burden or expense and they tried in good faith to resolve the issue without court involvement. Court can then deny discovery, limit discovery, or permit discovery on specified terms.
87
When are sanctions for discovery issues permissible?
1. If party responds but not fully, the opposing party must first move for an order compelling the party to answer the remaining questions. If that order is violated, then the court can enter merits sanctions
2. If party simply fails to respond at all, the court can enter merits sanctions plus costs without an order.
88
What is "litigation hold"?
When litigation is reasonably anticipated, the parties must preserve discoverable information
89
What is the difference between a preliminary injunction and a TRO?
A preliminary injunction maintains the status quo until trial. A TRO can be issued ex parte to maintain the status quo until the hearing on a preliminary injunction.
90
What must a TRO state, and how long is it effective?
It must state its terms specifically, describe in detail what the defendant must do/not do, state why it was issued, and state why the threatened injury to the plaintiff was irreparable.
It is effective for up to 14 days and can be extended for good cause for another 14 days. So can't be more than 28 days total.
91
What must an applicant prove to receive a preliminary injunction?
1. Applicant is likely to suffer irreparable harm if injunction is not issued;
2. Applicant is likely to win on the merits of the underlying case;
3. The balance of hardship favors the applicant; AND
4. The injunction is in the public interest
92
May an order granting or denying a preliminary injunction be appealed?
Yes, as a matter of right
93
What is voluntary dismissal?
Plaintiff can withdraw the case without a court order before the defendant serves an answer or motion for summary judgment.
First voluntary dismissal is "without prejudice," allowing the case to be refiled in the future. The second voluntary dismissal is "with prejudice."
94
When might a default and default judgment occur?
When the defendant does not respond to the complaint in time (21 days after being served, or 60 if service was waived).
95
When can the clerk of the court enter a default judgment?
-D has made no response/appearance;
-Claim itself is for a sum certain in money;
-P gives an affidavit of sum owed; AND
-D is not a minor or incompetent.
If all of the above are not true, then P must apply to court for default judgment, the hearing for which D will receive notice if D had appeared in some fashion in the case.
96
Why might a default or default judgment be set aside?
If D moves by showing good cause AND a viable defense
97
What is a motion to dismiss for failure to state a claim, and what does the judge consider in ruling on the motion?
Tests whether P's complaint states a claim and belongs in court at all. Judge looks only at the plaintiff's allegations of fact on the face of the complaint and asks, if true, if they state a claim.
98
What is a motion for summary judgment?
After P has survived Rule 12 motions, summary judgment allows a case to avoid trial where there is not dispute of material fact. The party must move no later than 30 days after the close of discovery, and the judge can consider evidence in the light most favorable to the non-moving party.
Standard: (1) no genuine dispute as to material fact AND (2) moving party is entitled to judgment as a matter of law.
99
When must the parties give the court a detailed discovery plan, and what must it contain?
No later than 14 days after the Rule 26(f) conference. It must contain views about timing and issues about discovery of ESI.
100
Where does the Seventh Amendment apply?
Seventh Amendment preserves right to jury trial in civil actions at law. It does not apply to suits at equity or in state court.
If a case includes both law and equity, the jury will look at facts underlying a damages claim and will try that issue first, and then the judge will deal with any facts relating wholly to the equity claim or facts that underly both a claim for damages and injunction.
101
When must a party demand a jury trial?
In writing no later than 14 days after service of the last pleading addressing a jury triable issue (usually the answer).
102
What are the two types of challenges to potential jurors?
-For cause (unlimited number)
-Peremptory, where the party states no reason (three, which can be used only in a race and gender-neutral manner)
103
How many jurors must be on a civil jury in federal court?
Minimum of six and maximum of twelve, unless the parties agree otherwise. Verdict must be unanimous.
104
When must a party object to a jury instruction?
On the record. If the objections are not made before the jury is charged, the objection is waived.
105
What are the types of verdict?
-General: just says who wins and what the relief is
-Special: jury answers in writing specific questions about the facts in dispute but does not say who wins or loses.
-General with Written Questions: jury gives general verdict but answers specific questions to ensure they focused on the important issues
106
What is a motion for judgment as a matter of law?
Also known as a directed verdict, it prevents a case from going to the jury if granted. It is based upon evidence presented at trial and the standard is that reasonable people could not disagree on the result.
Parties can move for JMOL after the other side has been heard at trial on that issue.
107
What is a renewed motion for judgment as a matter of law?
It is the same as JMOL but comes up after trial. If granted, the court enters judgment for the party that lost the jury verdict. Judge views evidence in the light most favorable to the non-moving party.
Must be made within 28 days after entry of judgment, and party must have moved for JMOL at the proper time at trial.
108
What is a motion for a new trial?
A new trial can be granted on any non-harmless error that makes the judge think there should be a do-over. The party must move within 28 days of the judgment. Overall, less drastic than RJMOL.
109
What is the difference between remittitur and additur?
Both are means of avoiding a new trial when the jury's damage figure is incorrect.
Remittitur - P can choose to remit part of the damages or go through new trial (jury damages are excessive)
Additur (State court ONLY) - D can choose to add to damages award or go through new trial
110
When does a losing party have a right to appeal to a circuit court?
When the court's order is a final judgment that determines the merits of the entire case. When there are multiple claims and parties, the district court may expressly direct entry of a final judgment as to one or more of them if there is no just reason for delay.
111
What is an interlocutory appeal?
Allows for appeal of a nonfinal order, such as a preliminary injunction, as a matter of right.
112
What does the Interlocutory Appeals Act allow?
Appeal of a nonfinal order if:
1. District judge certifies that it involves a controlling issue of law;
2. As to which there is substantial ground for difference of opinion; AND
3. The court of appeals agrees to hear it
113
What is the collateral order doctrine?
Gives appellate court the discretion to hear an appeal on an issue if that issue is
1. distinct from the merits of the case;
2. involves an important legal question; AND
3. is essentially unreviewable if parties await a final judgment
114
What is the standard of review on appeal for questions of law?
De novo - no deference given to district judge
115
What is the standard of review for questions of fact in a bench trail on appeal?
Affirm unless the findings are clearly erroneous
116
What is the standard of review for questions of fact in a jury trial on appeal?
Jury fact findings are given great deference. Affirmed unless reasonable people could not have made the finding.
117
What is the standard of review on appeal for discretionary matters?
Affirm unless district court abused discretion.
118
What is res judicata/claim preclusion?
Prevents a claimant from suing more than once to vindicate a claim. Requires:
-same claimant suing same defendant
-valid, final judgment on the merits
-the cases asserting the "same claim"
119
What is issue preclusion/collateral estoppel?
An issue cannot be relitigated in a second case. It can only be used against somebody who was a party in the first case or in privity with a party in the first case. Requirements:
-first case ended in valid, final judgment on the merits
-same issue was litigated and determined in the first case
-issue was essential to the judgment in the first case
120
What are the options for issue preclusion if being used by someone who was not a party to the first case?
-Nonmutual defensive issue preclusion: person using preclusion was not a party in the first case and is the defendant in the second place, typically all right as long as the plaintiff had a full chance to litigate in the first case.
-Nonmutual offensive issue preclusion: person using preclusion was not a party to the first case and is the plaintiff in the second case. Typically all right if it was fair.
