Civil Procedure Flashcards
When is minimal diversity permitted?
Statutory interpleader
Class actions with 100+ class members worth more than $5M
Interstate mass torts of 75+ dead
Rule for citizenship of representative parties for the purposes of DJ
Citizenship of the representative controls for the purposes of DJ
Exception to the rule for citizenship of representative parties for the purposes of DJ
Litigation is for decedent’s estate (decedent’s citizenship controls)
Litigation is for minor/incompetent person (minor/incompetent’s citizenship controls)
When is removal proper?
state court to fed court removal is proper only if case could’ve originally been brought in fed court
Removal requirements
Must remove within 1 year
All Ds must consent to removal within 30 days of service
Removal based on DJ only if DJ requirements are met AND action is brought in a state that no D is a citizen of (forum-defendant rule)
Supplemental jx
fed court with SMJ can hear additional claims that court wouldn’t independently have jx, but only if ALL claims constitute same case or controversy (common nucleus of operative fact)
What types of claims is supplemental jx permissible for?
Compulsory Counterclaim
Related crossclaim
Permissive joinder of parties
What is a compulsory counterclaim
D’s counterclaim that arises from same case/controversy
What is a related crossclaim
Related to claim that court has SMJ over + Not asserted by a P against person made a party under Rule 14/19/20/24
What is Personal Jx
whether court has power to reach the defendant
PJ Waiver Rules
must object to PJ in 1st filing or amendment of 1st filing otherwise D waives
In personam jx
generally required when judgment sought would impose personal obligation on D
General in personam jx
P can assert any claim even if unrelated to D’s contacts with forum state
Specific in personam jx
P’s claims against D must arise out of D’s minimum contacts with forum state
State long-arm statutes
Gives court specific in personam jx over out-of-state Ds only for D’s minimum contacts with the forum state
Minimum contacts elements
1) purposeful availment (to forum state), and 2) foreseeability of being sued in forum state
Exceptions to the rule that federal courts generally follow the state long-arm statute of the state they sit in
Federal Interpleader Act
Bulge Provision
Foreign Ds
How does Federal Interpleader Act establish PJ
Service anywhere in the US establishes PJ
How does the Bulge Provision establish PJ
service anywhere within 100 miles of fed courthouse (for impleading 3rd party Ds and joining necessary parties)
How do federal courts establish PJ over foreign Ds
P sues under fed law but no state has jx over D, fed court can exercise jx so long as D has sufficient contacts w/ US as a whole
In rem jx
gives court authority to determine issues concerning rights to real/personal property
Due process requirement for in rem jx
property must be located in state of lawsuit + suit settles everyone’s claims to property
Quasi in rem jx
adjudicates rights of a specific person who has property in forum state
Due process requirement for quasi in rem jx
if disputes are unrelated to property ownership, minimum contacts must be shown between D and forum state + property must be located in forum state
Notice & Service of Process
must serve summons & complaint to D to inform D of pending action & opportunity to object
General rule for service of process
Can follow the service rules of the state where the court is located OR where service is actually made
Methods of permissible service of process
In-person delivery
Leaving docs at D’s dwelling with resident of suitable age + discretion
Delivery to authorized agent
Registered mail
Special rules of service
Minor: must serve minor + guardian
Incompetent: must serve incompetent person + guardian
Partnership: can serve on general partner, attorney, or authorized agent
Corporation: can serve officer, director, managing agent, or appointed agent
Publication: only appropriate for quasi in rem or in rem actions when parties’ identities can’t be obtained through reasonable effort
How can service of process be waived?
P can notify D of action and request D’s waiver of service; D’s waiver extends D’s deadline to file an answer (21 -> 60 days)
Venue
where among the courts is the appropriate court to hear the case
D’s waiver of venue
D’s responsibility to object to improper venue at 1st opportunity, otherwise waiver
Where is federal venue proper?
proper in a district where 1) D resides if all Ds reside in same state, 2) substantial part of events giving rise to claim occurred, 3) property at issue is located, OR 4) any district where D is subject to PJ
Rule of transfer
generally only allowed if transferring to district with proper venue
Exception to rule of transfer
transfer to district w/o proper venue is ok if all parties consent
Conflict of law with regards to venue depends on?
depends on whether suit was brought in a district with/without proper venue
Which law controls if a suit is brought in a district with proper venue and is later transferred?
Law of 1st forum controls
Which law controls if a suit is brought in a district without proper venue and is later transferred?
Law of 2nd forum controls
Special venue rule for Federal Tort Claims Act
Venue is proper where P resides or where act/omission occurred
Special venue rule for foreign gov’t litigation
Venue is proper where substantial events occurred, where property is located, fed district court in DC
Choice of law for federal question
fed substantive & procedural law controls
Choice of law for DJ
fed procedural law controls for procedural issues (unless outcome-determinative, in which case use state procedural law); & use state law for substantive issues
Choice of law for supplemental jx of state-law claim
state substantive law for state-law claim
What is the test for federal/state law conflicts?
When there is a conflict between fed & state law and no fed statute/FRCP on point, the court will apply state law if it is outcome determinative, if the state’s interest outweighs fed interest, or if it would prevent forum shopping
What do state substantive laws include?
Conflict of law rules
Laws governing preclusion
Calculation of damages
Statute of limitations
Evidentiary privileges
Order of state authority for federal court adjudicating state law
Follow precedent from highest state court, if no precedent then predict how it would rule; respectful attention to lower state courts but not binding
What type of pleading does the FRCP typically require?
Notice pleading
What does notice pleading include?
Statement of court’s SMJ
Statement of claimant’s entitlement to relief
Claim for relief
When is special pleading required under the FRCP?
Must state with more particularity/detail if claim is for fraud, mistake, or special damages
Motion to dismiss for failure to state a claim (12b6)
Claim dismissed if it fails to assert legal theory of recovery recognized under law
How to evaluate a motion to dismiss for failure to state a claim (12b6)?
Reject unsupported legal conclusions + Assume truth of P’s well-pleaded facts + Resolve ambiguities in P’s favor
What is a motion for judgment on the pleadings?
pleadings agree entirety on facts and only the law is in dispute
What is a motion to strike used for?
used to delete pleading scandalous/prejudicial matters NOT relevant to case or to strike legally invalid defense
When is the D’s answer due if the court denies D’s motion to dismiss?
Answer is due 14 days after notice
Amendment as of right
may amend once anytime within 21 days of service of pleading or 21 days of D’s response
Amendment by leave of court
after first amendment, leave to amend must be sought by court (granted freely)
Doctrine of Relation back
In some circumstances, amendment is deemed to relate back to the date the original pleading was filed. If statute of limitations has run out, then relation back determines whether amended pleading is allowed (relates back) or time-barred (doesn’t relate back).
Requirements to amendment to add/change party
Must 1) concern same case/controversy, AND 2) new party must’ve known or had reason to know that the action should’ve been brought against them.
Response time to amended pleading
Unless court orders otherwise, responding party must respond to amended pleading within 1) time that remains to respond to original pleading, OR 2) 14 days service of amended pleading, whichever occurs LATER
What is an interpleader
resolves problems of competing claims to same property
What is an intervention
outsider who volunteers to enter a lawsuit, usually as additional plaintiffs under Rule 24
Intervention as of right
available when outsider has interest in subject matter of lawsuit that may be compromised by the pending action
Permissive intervention
court may give permission if there’s a common question of law/fact between intervenor’s claim and the main claim (relaxed standard)
Do intervenors have supplemental jx over their claims?
No SJ if jx based on diversity - intervenors must independently satisfy complete diversity + $75k+
4 components to statutory interpleader
$500 or more
SMJ based on minimal diversity
Nationwide service of process (to assert personal jx anywhere in US)
Proper venue any district where a claimant resides
Impleader
D brings into the suit someone who is or may be liable to D for all or part of P’s claim against D
Elements of a class action
must have 1) numerosity, 2) common questions of law/fact predominate over individual questions, 3) typicality of claims, AND 4) adequacy of representation
How is DJ satisfied for class actions?
DJ satisfied if named reps are completely diverse from Ds AND at least one P has claim over $75k+
FRCP 26 for Discovery
Generally may discover any evidence, info, or facts relevant to a party’s claim/defense and proportional to case’s needs. Court must consider whether burden or expense of proposed discovery outweighs its likely benefit. Finally, a party cannot discover privileged info.
Discovery devices
Oral deposition
Written deposition
Interrogatories
Discovery & Inspection of docs and land
Physical & Mental Exam
Request for admission
Pretrial conference requirements
1) attended by attorneys conducting trial, 2) file pretrial statement, 3) failure to comply = attorney pays costs and other side’s attorney’s fees
Final judgment rule for appeals
appeals are only available from a final judgment that resolves all claims of all parties (final judgment rule)
Partial final judgment exception for appeals
Partial final judgment where court may enter final judgment on some claims by expressly designated the order as final
Interlocutory orders - exceptions to final judgment rule for appeals
Interlocutory orders are non-final, temporary court orders. Interlocutory orders include immediately appealable orders and discretionary interlocutory review.
Immediately appealable orders
Orders for injunctions other than TROs
Orders affecting property possession
Discretionary interlocutory review
any interlocutory order is appealable with leave of courts (trial & appellate) so long as 1) trial court certified the order for appeal, and 2) appellate court agrees to accept
Is immediate appellate review permitted when a Court issues a Writ of Mandamus?
Yes, immediate appellate review permitted for an order that is an abuse of authority
The 3 standards of appellate review
Questions of law - De Novo
Findings of fact - Clearly erroneous
Abuse of discretion
Claim Preclusion/Res Judicata
Re-litigation is barred if 1) final judgment on merits of first suit, 2) second suit is between same parties or successors in interest, AND 3) second suit involves same claim/cause of action
Claim preclusion - what does final judgment on the merits include
default judgment, summary judgment, dismissal w/ prejudice
Issue preclusion/Collateral estoppel
Re-litigation is barred if 1) same issue of fact, 2) issue was actually & necessarily decided by valid binding judgment, AND 3) party to be precluded was a part to the first suit
Issue preclusion - what does actually & necessarily decided mean
issues must’ve been actually litigated, not just those that might’ve been (doesn’t include default judgment)
Mutual use of issue preclusion
parties from 1st action assert issue preclusion in 2nd action against other parties from 1st action
Nonmutual use of issue preclusion
nonparties from 1st action assert issue preclusion in 2nd action against parties from 1st action
Defensive nonmutual use of issue preclusion
used by D in 2nd action to avoid litigating an issue from 1st action
Offensive nonmutual use of issue preclusion
used by P in 2nd action to establish issue from 1st action; permitted at court’s discretion (if P could’ve joined in 1st action, then offensive use shouldn’t be allowed)
Who does P have to serve process on when suing the US, its agencies, or its employees?
1) the US attorney for the district where the suit is filed OR the civil-process clerk at the USAO, 2) the US Attorney General, AND 3) any agency/officer whose official conduct is being challenged.
Omnibus motion rule
Under the omnibus motion rule, lack of PJ + improper venue + insufficient service of process must be consolidated in a single pre-answer motion or are otherwise waived.
How may a party secure the right to a jury trial in a civil action?
Any party may secure the right to a jury trial in a civil action on any legal claim where the AIC exceeds $20 by 1) serving the other parties w/ a written jury demand no later than 14 days after the last pleading is served and 2) filing the demand w/ the court within a reasonable time after serving it.
When can a clerk enter a default judgment?
A clerk may enter a default judgment when: 1) claim is for a sum certain, 2) request includes an affidavit establishing the amount due, 3) defaulting party failed to appear, AND 4) defaulting party is not legally incompetent or a minor. Otherwise, only the court may enter a default judgment.
What is the 2-dismissal rule?
The 2-dismissal rule applies when the P voluntarily dismissed 1) the first action in fed or state court w/o a court order, AND 2) the second action based on the same claim in fed court by filing a notice of dismissal.
The 2nd dismissal will be with prejudice.
What is a motion for JMOL used for?
A motion for JMOL is used to remove a case from the jury’s consideration when there is legally insufficient evidence for a reasonable jury to find in the nonmovant’s favor.
When can a motion for JMOL be renewed?
The motion can be renewed within 28 days AFTER entry of judgment to seek to overturn an adverse verdict.
Federal court treatment of additur
A federal court cannot grant a request to increase an allegedly inadequate jury award of damages (additur)
Federal court treatment of remittitur
the court can reduce an allegedly excessive jury award or order a new trial on damages (remittitur).
When can a party file a motion for sanctions with the court?
A party cannot file a motion for sanctions with the court until 21 days AFTER serving that motion on the alleged violator so that the violator has time to correct the violation under the safe-harbor rule.
Can a federal court still exercise supplemental jx over remaining state-law claims if the federal anchor claim has been dismissed?
If the original federal claim that anchors a case (and its related state-law claims) to federal court is dismissed, the court MAY still exercise supplemental jx over the remaining state-law claims.
What types of sanctions can a court impose on a party who fails to make required disclosures?
1) prohibit the use of the undisclosed evidence, 2) order the payment of the opposing party’s reasonable expenses, 3) inform the jury of the nondisclosure, and 4) impose any other appropriate sanction except for contempt of court.
When must a notice for appeal be filed?
The notice of appeal must generally be filed within 30 days after the judgment or order being appealed was entered.
Collateral-Order Doctrine for appeals
Under the collateral-order doctrine, a court of appeals has discretion to hear and rule on a district court order if it (1) conclusively determines the disputed question, (2) resolves an important issue that is completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment.
A preliminary injunction binds whom?
A preliminary injunction binds the following people who receive ACTUAL notice of it: 1) parties, 2) their officers, agents, employees, attorneys, and 3) any person in active concert/participation with the aforementioned people.
A federal court obtains PJ for a D through tag UNLESS?
A federal court obtains PJ over a D served with process while voluntarily present in the forum state UNLESS D was: 1) fraudulently brought into the state to be served, or 2) present in the state to attend an unrelated judicial proceeding.
All attorney-expert communications are privileged except?
All attorney-expert communications are privileged unless they: 1) relate to the expert’s compensation, or 2) identify facts/data/assumptions provided by the attorney that the expert considered or relied on in forming expert opinions.
When does a defendant-manufacturer have minimum contacts with the forum state?
When the defendant-manufacturer: 1) places goods in the stream of commerce, AND 2) purposefully targets that state.
Deadline to file an answer after the pre-answer motion was denied?
14 days
Deadline to file a 3rd party complaint without leave after original answer was served?
14 days
Deadline to respond to an amended pleading?
14 days
Deadline to submit proposed discovery plan & initial disclosures after initial conference?
14 days
Deadline to demand jury trial after last pleading served?
14 days
Deadline to serve pre-answer motion or answer after service of complaint, counterclaim, or crossclaim?
21 days
Deadline to amend pleading as a matter of course after pleading was served?
21 days
Deadline to hold initial conference before scheduling order is due?
21 days
Deadline to serve reply to answer?
21 days
Deadline to renew motion for JMOL?
28 days
Deadline to move for new trial?
28 days
Deadline to move to alter or amend judgment?
28 days
Deadline to move for amended findings after final judgment?
28 days
Deadline to file notice of removal after receipt of initial pleading
30 days
Deadline to move to remand after notice of removal is filed?
30 days
Deadline to submit pretrial disclosures before trial?
30 days
Deadline to respond to interrogatories, requests for production & requests for admission?
30 days
Deadline to move for summary judgment after close of discovery?
30 days
Deadline to serve answer after service of process on US agency or employee?
60 days
Deadline to disclose expert witness materials before trial?
90 days
How is AIC determined for purposes of DJ when P requests equitable relief?
Equitable relief’s implicit monetary value is calculated by the LARGER of either:
1) cost to D if forced to comply w/ requested equitable relief (e.g., lost sales), OR
2) worth to P if requested equitable relief is granted (e.g., expected profits)
Discovery requests generally can’t be served until?
Discovery requests generally can’t be served until the parties have held an initial planning conference to arrange for initial disclosures and prepare a discovery plan.
When the 1st case was decided in State A, then the 2nd case was brought in State B and the P seeks to use nonmutual issue preclusion, how does the 2nd court determine whether preclusion applies?
The 2nd court will look to the law of the 1st forum that entered the 1st judgment.
E.g., if the law of the 1st forum permits nonmutual issue preclusion, that will control.
When may a court extend a TRO beyond the 14-day limit or when the preliminary-injunction hearing takes place (whichever comes first)
If 1) opposing party consents, OR 2) movant provides good cause (unforeseeable event)
To compel an organization’s attendance at a deposition, the written notice must?
Must describe the matters for examination w/ reasonable particularity
