Civil Procedure Flashcards
When are two claims considered related for the purposes of supplemental jurisdiction?
When the claims arise out of a common nucleus of operative fact
What are the four requirements for a class action?
(1) Numerosity
- the class must be so numerous that joinder of all members is impracticable
(2) Commonality
- there must be questions of law or fact that are common to the class
(3) Typicality
- the claims or defenses of the representatives must be typical of the class
(4) Adequacy
- the representatives must fairly and adequately protect the interests of the class
Due process requirement for in personam jurisdiction
Satisfied if the D has sufficient minimum contacts with the forum state such that the maintenance of the action doesn’t offend fair play and substantial justice
Where is venue proper?
generally, (1) district where any defendant resides (if they reside in the same state as the district), or (2) judicial district where a “substantial part of the events or omissions” on which the claim is based occurred, or if property, a “substantial part of the property” is located there
Under Erie Doctrine, what law governs in a diversity action
in a diversity action, the court is to apply the substantive law of the state where it is located as long as there is no federal law on the point
For procedural law, federal law is applied even if it conflicts with a state rule or statute
Requirements for plaintiff seeking a preliminary injunction
Must establish that:
(1) likely to succeed on the merits
(2) likely to suffer irreparable harm in the absence of relief
(3) the balance of equities is in his favor; and
(4) the injunction is in the best interest of the public
What are the required elements for a complaint?
Under Rule 8(a), a complaint must include:
(1) a short and plain statement of the grounds that establish the court’s subject matter jurisdiction
(2) a short and plain statement of the claim establishing entitlement to relief; and
(3) a demand for judgement for the relief sought by the pleader
Federal question jurisdiction
District courts have original jurisdiction over all actions arising under the Constitution, laws, or treaties of the US
When can a party amend a pleading?
(1) Once as of right within 21 days if no responsive pleading is required; or
(2) if a responsive pleading is required,
- within 21 days of service of the responsive pleading or - within 21 days of being served with a motion under Rule 12(b), whichever is earlier
Court should freely give leave to amend a pleading when justice so requires
When may a plaintiff join as a permissive joinder?
Under Rule 20(a)(1), a person may join in one action as plaintiff if:
(1) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(2) any question of law or fact common to all plaintiffs will arise in the action
same circumstances apply to permissive joinder of defendants under Rule 20
Under Rule 20 permissive joinder, does the plaintiff to be joined have to meet the requirements of federal subject matter jurisdiction?
If multiple plaintiffs join together, then supplemental jurisdiction can exist for a claim that does not meet the statutory jurisdictional amount, provided the parties still meet the requirements of complete diversity
When must an objection to improper venue be raised?
in a pre-answer motion to dismiss under Rule 12(b)(3) or in the first responsive pleading, if a motion under Rule 12(b)(3) is not filed
5 bases for in personam jurisdiction
(1) voluntary presence
(2) domicile
(3) consent
(4) long-arm statutes
(5) attachment
What is a compulsory counterclaim?
a pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if:
(1) the claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim; and
(2) the claim does not require adding another party over whom the court cannot acquire jurisdiction
note: a party who fails to assert a compulsory counterclaim waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court
What are the three types of personal jurisdiction?
(1) in personam jurisdiction
(2) in rem jurisdiction
(3) quasi-in-rem jurisdiction
What are the three types of class actions
(1) Risk of Prejudice
- class is maintainable if the prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or if prosecution of the claims through separate actions would impair the interests of the class members
(2) Final Equitable Relief
- a class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party
(3) Common Legal or Factual Questions
- a class can be certified if questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method of bringing about a fair and efficient adjudication of the controversy
Replevin
Seizure of personal property in defendant’s possession that is transferred to plaintiff’s possession pending the outcome of suit
Preliminary Injunction
Court order commanding or prohibiting specifies action while the case is pending
Temporary restraining order
court order commanding or prohibiting specified action for 14 days or until preliminary-injunction hearing can take place (whichever occurs first)
Attachment
seizure of person’s property to secure or satisfy future judgment
Garnishment
court order directing third party to hold indebted party’s assets (eg wages) until further judicial notice
Receivership
appointment of neutral third party to manage and administer disputed assets/property
When bringing a class action under common legal or factual questions, what 7 pieces of of information must be stated in the notice provided to the members?
(1) the nature of the action
(2) the definition of the class
(3) the class claims, issues, or defenses
(4) that a class member may enter an appearance through an attorney if the member so desired
(5) that the court will exclude from the class any member who requests exclusion
(6) the time and manner for requesting exclusion; and
(7) the binding effect of a class judgement on members
3 types of mandatory disclosures?
(1) initial disclosures
(2) disclosures of expert testimony 90 days before trial
(3) pretrial disclosures 30 days before trial
