Civil Procedure Flashcards
Factors for constitutionality of specific PJ
Contacts
Relatedness
Fairness
Contact as a factor of PJ includes:
purposeful availment and foreseeability
2 ways to acquire general PJ over person
Def is at home
Def is served with process in forum state
2 ways to acquire general PJ over Corporation
State of incorporation
State of principal place of business (HQ)
Proper Notice consists of:
Proper Service of Summons and a Copy of the Complaint
Can plaintiff serve notice?
No. Service must be sent by 18+ non-party
Within how many days of filing must the notice be served
90 days
If def cannot be served, what is a substitute service option
- at def’s usual place of adobe
- with smn of suitable age and discretion
- Who resides there
Can the service be by mail?
Only if state statute authorizes it (no federal statute)
Court clerk mailed a letter to an Italian in Italy. Is it proper service?
Only if the clerk gets a signed receipt
Plaintiff mailed a letter to an Italian in Italy. Is it proper service?
No, must be by clerk
If defendant waives service, it also waives the following defenses:
None
Waiver of services precludes defense of lack of PJ. True or False?
False
When is a waiver of service effective?
When a plaintiff files a waiver with the court. Important - this is when time starts to run
Alex, a resident of New Jersey, was subpoenaed to testify against a criminal defendant in New York. Rachel personally served him with process of MVA case in which she was injured while Alex was in New York. Is the service proper?
No. 1) Defendant is immune from the process while appearing in another case
2) Rachel cannot personally serve process as she is a party to the case
Alex won a green card and moved to New York. He was involved in MVA in New Jersey. New Jersey citizen sues Alex in federal court. Is complete diversity satisfied?
Yes. Although a green card holder is not a resident of any state, alienage jurisdiction (citizen v. alien) applies as long as they don’t live in the same state
Plaintiff is a U.S. citizen domiciled in Italy. Plaintiff sues Defendant, a citizen of California, in federal court. Is complete diversity satisfied? Is alienage jurisdiction satisfied?
1) No, the plaintiff is not a citizen of any state. 2) No, the plaintiff is a citizen of the U.S.
Can an unincorporated association be a citizen of all 50 U.S. states?
Yes, because it takes on citizenships of all members
What is the citizenship of corporations and incorporated associations
Corporations - a place of incorporation and HQ. Incorporated Asscns - citizenship of its members
When a minor, decedent, or incompetent is represented by a person, what is the citizenship?
A representative’s citizenship is irrelevant
When a class action is represented by a person, what is the citizenship?
A representative’s citizenship is used
What is a minimum amount in controversy required for diversity citizenship SJM?”
$75,000.01 (unlike in contracts, SoF is $500 or more)
For a plaintiff to aggregate its claims against a defendant, must they arise from the common nucleus of operative facts?
No. claims may be unrelated
Amount in controversy aggregation rule
A single plaintiff can aggregate any claims against single defendant
Rule to calculate amount in controversy when equitable relief is demanded
Satisfied if 1) the plaintiff will gain more than $75k; or 2) the defendant will lose $75k
Alex (NY) sues Jake (NJ) and Susan (NY) in NY court, 11 months and 2 weeks later, Susan wins motion to dismiss. Jake removes the case to Federal Court. Should the case be remanded? (Timing?)
Removal must be made within 30 days. If diversity jurisdiction - cannot remove if 1 year has passed since filing. Thus, Jake has 2 weeks to remove the case. 2 Exceptions: 1) if Jake can show that Susan was added only to break diversity - he will have 30 days to remove (no 1y limit) 2) If a federal question is present, Jake has 30 days to remove (no 1y limit).
For a plaintiff to bring different claims against a defendant, must they arise from the common nucleus of operative facts?
No, a common nucleus of operative facts is only required for supplemental jurisdiction. i.e. when the claim does not independently satisfy SMJ.
When is supplemental jurisdiction available?
Always available for defendants’ counterclaims, but only available for plaintiff in Federal Question SMJs. There’s one exception for plaintiff’s to use supp SMJ in diversity cases - co-plaintiff may invoke supplemental jurisdiction (based on a claim of the first plaintiff) to meet the amount in controversy
P1 (CA) and P2 (CA) v. D1 (FL) on state law claim. P1’s claim is for $100k. of P2’s claim is for 10k, can he use supplemental Jurisdiction?
Yes, despite not having amount or diversity, he can supplement his claim to the plaintiff’s claim (who satisfied diversity and amount requirements) if joinder is proper = 1) claim arises from same transaction or occurrence, and 2) raise at least one common question of law or fact.
Plt (NY) was driving in NJ when his ex-wife (NJ) rear-ended him while working for D2(NY). Plt sued Ex-wife for MVA for 50k and for an unpaid debt of 50k. Plt also sued D2 for a single claim in the amount of 100k. Is SMJ satisfied over D1 and/or D2.
v. D1 – Yes, the plaintiff may aggregate unrelated claims to meet amount in controversy
v. D2 – No, no diversity jurisdiction & no supplemental jurisdiction allowed for the plaintiff
For purposes of Erie doctrine, what 5 issues are clearly substantive
- conflict or choice of law rules
- elements of a claim or defense
- statutes of limitation
- tolling of statute of limitations
- standard of granting a new trial because the jury’s award was excessive or inadequate
The venue is proper where:
- all Ds reside within the same state (can be different districts)
- substantial part of events arose (can be more than one district)
If none applies, where one of the defendant’s reside.
For corporations - where it is subject to PJ
Can the plaintiff and defendant consent to a transfer to a different court that has SMJ?
If all parties consent and the court finds cause for the transfer - YES. Def cannot unilaterally consent
What choice of law applies when the case is transferred?
The law of the transferor court (where the case came from), unless the transferor court was an improper court (lack PJ, Venue, or pursuant to a forum selection clause)
When the action is commenced
filling of complaint
What are the waivable Rule 12b defenses?
PJ
Venue
Process
Service of Process
What are the unwaivable Rule 12b defenses?
Failure to join indispensable party
Failure to state a claim
Lack of SMJ
How much time do parties have to amend summons complaint or reply
21 days after the service of the motion or response
How much time does a defendant have to Reply
21 days, but 14 days if motion was denied
3 factors for amending complaint to add a defendant:
- Amendment concerns
- Def had knowledge of the case so won’t be prejudiced
- Def should have known that but for a mistake he would have been named
What is a Safe Harbor Provision for sanctions for violating a Rule 11 certification?
Party seeking sanctions must serve motion on opponent and wait 21 days before filing it with the court to allow the other party to fix the violation
The indispensable party is –
A necessary non-party to the case that cannot be joined and the case cannot proceed without them
What is required for multiple plts or defs to be joined?
- claims must arise from the same transaction or occurrence and raise at least one common question of law or fact
Compulsory counterclaims are
Claims that arise from the same T/O and must be asserted in the pending case or are waived
Permissive counterclaims are
Claims that do not arise from the same T/O and are not lost if not asserted in the pending case
what claims/counterclaims/impleader claims/crossclaims can be asserted with lack of SMJ
None. all claims must have either F.Q., Diversity+Amount, or Supp J.
Are there compulsory crossclaims?
No. any crossclaim (against co-party) can be asserted in a separate action. NOTE: if a cross-claim is filed against co-party, co-parties claims become counter-claims, and may even be compulsory.
Impleader claims are asking for indemnity or contribution from a third party that must be impleaded or will be waived. T or F?
False. Impleader claims are always permissive.
What is the timing for the impleader claim?
14 days from serving your answer or permission by the court
Intervention vs. Impleader vs. Joinder claims
Intervention - 3rd party comes in as plt or def.
Impleader - defendant impleads a 3rd party for contribution or indemnification (must formally serve 3rd party within 14days of answer)
Joinder - multiple plts or defs at the outset (must be from same T/O and one common Q. of law of fact)
Intervention as of right is –
when the absentee’s interest will be harmed unless it is joined
Permissive intervention is –
when the absentee’s claim or defense has at least one common question of law or fact.
If intervener decides to join as a plaintiff in an action, but lacks the necessary amount, does the limitation that prohibits supplemental J. apply?
No. One exception is when multiple plaintiffs supplement their claims together
4 requirements for class actions
Numerosity
Commonality
Typicality
Adequate representative
What is unique about SMJ determination in class actions
Federal question is the same, but diversity and amount is judged by class action rep. only. other members are ignored.
Required Initial Disclosures are
Info about witnesses and docs used to support (not harm) your case
Insurance coverage
Computation of monetary relief and supporting docs
A court can hold in contempt a party that refused to submit to a medical examination. T or F?
False. This is the only exception where the court cannot hold a party in contempt for failure to comply with discovery. But, it may still impose merit sanctions and/or attorneys fees
The defendant sent 30 interrogatories asking for the legal basis of claims. What is the plaintiff’s best objection?
A party only has 25 questions. NOTE: legal basis can be asked, but not work product opinions
How long is TRO effective for
up to 14 days. But, can be extended upon showing of good cause for another 14 days.
What is a required showing to get a preliminary injunction?
Irreparable harm
Likely to win on the merits
Balance of hardships
Public interest
When can a clerk enter a default judgment
If: D hasn’t appeared
claim for a sum certain
Plt gives an affidavit of the amount owed
Def is not minor or incompetent
If a plaintiff is seeking a declaratory judgment, how can it enter a default judgment?
Ask the court for a default. Then ask a judge to enter a default judgment. The judge will hold a hearing and has the discretion to grant or deny. Defendant is entitled to a notice if he appeared in the case in some way.
Is a showing of an excuse and good cause enough to set aside default judgment?
NO. need a showing of a viable defense
What opposing party must show to ask for extension of time to respond to SJ motion?
The party must file an affidavit stating that it needs more time to find evidence and specify what those evidence would be
If plaintiff failed to demand a jury trial in its complaint, can he amend it?
Yes, he has 14 days since the last pleading that addressed a jury triable issue (typically the answer)
what is an offer of judgment?
offer to settle up to 14 days before trial. If plaintiff rejects, it will be on the hook for costs of trial if it does not win a more favorable verdict
JMOL and RJMOL requirement
JMOL must be filed after a party presented its evidence. RJMOL can be filed only after the verdict; only if JMOL was filed; and only on the same issue.
what is the timing of a motion for new trial or RJMOL
28 days after the verdict
What can be appealed if it is not a final judgment?
- preliminary injunctions
- an order where a district judge certifies a controlling issue of law; and substantial grounds exist for difference of opinion; and court of appeals agrees to hear it.
- collateral order that involves an important question of law, and is unreviewable (immunity from being sued)
What issue preclusion law governs in Case 2?
Case 1 (federal v. state)
When does Res Judicata apply? (claim preclusion)
Same parties is same configuration
Final judgment on merits (default counts)
Asserting the same claim (event)
When does Collateral Estoppel apply? (issue preclusion)
Final judgment on merits (default counts)
Same issue actually litigated and determined
Issue is essential to judgment
Def must have been a party (or in a privity to a party) to the first case
Also, if plt was not a party to the first case, he can use C.E. defensively; or it is fair to use it offensively
Plt (NY) sued its employer (NJ) for unpaid wages in NJ state court. The employer wants to remove the case. Is the removal proper?
Yes. The limitation on removal by defendants who are citizens of the state in whose court the action was brought applies only to diversity actions.
When an action involves multiple claims or parties, and a summary judgment is entered that disposes of one of the claims, can the judgment be immediately appealed?
For immediate appeal, the court must provide that it is a final judgment and expressly determines that there is no just reason for delay.
At the conclusion of the trial, the Company submitted proposed jury instructions. The court refused to give these instructions. The Company did not object to the instructions given by the court. Can the Company appeal and what will be the standard?
Yes. The appeals court may review the court’s refusal to include the instructions, applying a plain error standard of review. Had the Company objected, the court would apply under abuse of discretion standard
In a negligence case against auto manufacturer, can plaintiff amend complaint to add strict liability claim after SOL has ran.
Yes, doctrine of “relates back” would allow to amend complaint to amend a claim that relates back
When can a party intervene in litigation as of right?
if (i) it has an interest in the property or transaction;
(ii) the resolution may impair the nonparty’s ability to protect its interest; and
(iii) the nonparty’s interest is not adequately protected by an existing party in the action.
Due to error, the applicable statute of limitations period passed without the filing of any action on the owner’s behalf. The owner retained another lawyer and sued the large law firm for malpractice.
What must the plaintiff be able to show
He would have recovered if an action had been timely filed
