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Rules > Civil Procedure > Flashcards

Civil Procedure Flashcards

1
Q

FQ Jurisdiction

A

Claim arises under federal law and under the well-pleaded complaint rule, the federal question must be presented on the face of P’s complaint. Raising a defense or filing a counterclaim under federal law does not trigger FQ jurisdiction

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2
Q

Diversity

A

Complete diversity, AIC exceeds 75k

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3
Q

When can P aggregate claims?

A

Can aggregate all claims against one defendant to meet the AIC requirement, can aggregate all claims against multiple defendants if the defendants are jointly liable

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4
Q

Specific cases with no diversity jurisdiction?

A

Probate actions and domestic relation matters

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5
Q

Individual citizenship

A

domicile

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6
Q

Corporate Citizenship

A

place of incorporation AND PPB

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7
Q

Unincorporated Associations Citizenship

A

Considered a citizen of every state of which its members are citizens

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8
Q

Class Action Citizenship

A

Citizenship of each named party in the class who are suing count for diversity purposes

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9
Q

Supplemental jurisdiction

A

allows a federal court with Valid SMJ over a case to hear additional claims over which the court would NOT have jurisdiction if all the claims constitute the same case or controversy. Claims constitute the same case or controversy if they arise out of a common nucleus of operative fact

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10
Q

Supplemental jurisdiction and compulsory counterclaims

A

A compulsory counterclaim is a counterclaim that arises out of the same T/O as the original claim. Federal court sitting in diversity has supplemental

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11
Q

Supplemental jurisdiction and permissive counterclaims

A

A permissive counterclaim is a counterclaim that does NOT arise out of the same T/O. It can only be heard if it independently satisfies diversity j

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12
Q

Supplemental jurisdiction and cross claims

A

A cross claim is a claim filed by a plaintiff against a plaintiff or by a defendant against a co-defendant.A federal court sitting in diversity j has supplemental jurisdiction over a cross claim if the cross claim arises out of the asme t/o as the original claim

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13
Q

Removal

A

Allows defendant to move a case from state court to federal court if the case could have originally been brought in federal court

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14
Q

Removal Procedure

A

By the defendant, within 30 days of learning the grounds for removal (not one year from commencement of action unless P acted in bad faith), and for diversity cases, D cannot remove if he is a citizen of the state where the court is

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15
Q

Service

A

A civil action is commenced by filing a complaint with the court. After the plaintiff files a complaint, a summons MUST be served on the defendant with a copy of the complaint within 90 days after the complaint is filed.

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16
Q

Who can serve summons and complaint?

A

Anyone who is 18 and not a party

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17
Q

Service can be done by

A

(1) serving person individually; (2) leaving a copy of each at dwelling with someone of suitable age and discretion; or (3) delivering a copy of each to an agent authorized by appointment or by law to receive a service of process (4) however state law allows

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18
Q

Serving a foreign individual

A

(1) delivering a copy of the summons and complaint to the individual personally; (2) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt (3) other means not prohibited by international agreement, as the court orders

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19
Q

Serving a corp, partnership, or association

A

Served by delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process

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20
Q

Venue

A

Determines the judicial district in which a lawsuit may be filed or commenced. Proper in a district where: (1) any defendant resides, if all the defendants reside in the same state; (2) a substantial part of the events or omission giving rise to the claim occurred, or a substantial part of property that is the subject of the action occurred; or (3) judicial district in which ANY defendant is subject to personal jurisdiction

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21
Q

Residence of foreign defendants

A

not a resident of the United States, may be sued in any judicial district

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22
Q

business entity residence for venue

A

A business entity is deemed to reside in any judicial district where the entity is subject to personal jurisdiction with respect to the action in question

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23
Q

Change of venue with proper venue

A

If venue is proper, the court may nonetheless transfer the case for the convenience of the parties or witnesses to any court where the case could have been originally filed

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24
Q

Improper venue

A

Court must dismiss the case or transfer where it could have been filed

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25
Q

choice of law and proper original venue

A

If transferor court had proper venue and it is a diversity case, the transferee court must apply the law that would have been applied in the district court that transferred the case

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26
Q

choice of law and improper venue

A

in a diversity case, the transferee court must apply the choice of law rules of the state in which it is located, as opposed to the state law of the district court that transferred the case

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27
Q

Abstention

A

Generally, a federal court with valid SMJ is required to adjudicate controversies before it. However, a federal court may abstain from hearing a case or stay the matter pending the outcome of a state court action in order to avoid intruding upon the powers of a state court

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28
Q

Preliminary Injunction

A

Preserves the status quo of the parties, may be prohibitory or mandatory. Prohibitory prohibits or restrains a party from doing something, while mandatory requires the d to engage in an affirmative act

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29
Q

Contents of injunction

A

order must state the reasons why it was issued, state its terms specifically, and describe in detail the acts or acts restrained

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30
Q

Requirements for preliminary injunction

A

Must establish likely to suffer irreparable harm, likelihood of success on the merits, balance of equities of the parties (p likely to suffer greater harm), and injunction is in the best interest of the public

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31
Q

TRO contents

A

state why it was issued, state its terms specifically and describe in detail the act or acts restrained or required

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32
Q

TRO requirements

A

same as PI

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33
Q

TRO and ex parte notice

A

Unlike a preliminary injunction, the court may issue a TRO without written or oral notice to the non-moving party if: (1) specific facts in an affidavit or verified complaint clearly show that immediate and irreparable harm will result to the movant before the non-moving party an be heard in opposition AND (2) atty certifies in writing any efforts made to give notice to the non-moving party and the reasons why it should not be required

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34
Q

Complaint

A

(1) grounds for SMJ, (2) short statement of the claim that shows pleader is entitled to relied and (3) a demand for judgment for relief

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35
Q

pre answer motion

A

may raise:

3Ps and a V

AND

lack of SMJ, failure to state a claim, failure to join an indispensable property

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36
Q

Answer

A

Must state a specific denial or admission of each allegation in the complaint OR a general denial of all allegations with specific admissions if necessary and any affirmative defenses

37
Q

Timing of answer

A

no pre-answer motion, 21 days. pre-answer motion, within 14 days after the court’s denial or postponement of the motion

38
Q

Amendments to Pleading by right

A

once as of right within 21 days if no responsive pleading is required. If a responsive pleading required, the party may amend within 21 days of whichever event is earlier: (1) service or responsive pleading OR (2) being served with a Rule 12(b) motion

39
Q

Amendment by leave of court

A

Court can permit an amendment to a pleading when justice so requires. Generally, a court will permit a proposed amendment if the proposed amendment: (1) is not subject to dismissal and (2) would not result in undue prejudice to the opposing party

40
Q

Relation back doctrine

A

Determines whether an amendment to a pleading will relate back to the date of the original pleading

41
Q

relation back for new claim

A

If the pleading is amended to include a new claim or defense, the amendment will relate back to the date of the original pleading if the new claim or defense arose out of the same T/O as original pleading

42
Q

relation back for new party

A

Amended to include a new party or change the name of a party, relate back to the date of the original pleading if: (1) it asserts a claim that arose of of the same T/O as original; (2) party to be brought in by amendment receives notice of the action within 90 days after the filing of the original complaint such that he will not be prejudiced in defending his case on the merits; and (3) the party to be brought in my amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity

43
Q

compulsory joinder

A

He he necessary:

(1) without him, court cannot accord complete relief among the existing parties

(2) his interests are harmed if he is not jointed or

(3) his absence subjects a party (usually D) to a risk of multiple suits

**joint tortfeasors are never necessary*

Can he be joined?

(1) PJ

(2) SMJ

What if he can’t be joined?

Court has to decide: is there an alternative forum available? What is the actual likelihood of harm to the absentee and can the court shape relief to avoid the harm to the absentee?

44
Q

Permissive joinder

A

parties may join as plaintiffs or be joined as defendants when: (1) some claim is made by each plaintiff against each defendant that arises out of the same T/O AND (2) there is a question of fact common to all parties

45
Q

Interpleader

A

Allows a plaintiff or a defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute

46
Q

Interpleader by a plaintiff

A

Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though: (1) the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; OR (2) the plaintiff denies liability in whole or in part to any or all of the claimants

47
Q

Interpleader by a defendant

A

defendant exposed to similar liability may seek interpleader through a cross-claim or counterclaim

48
Q

Intervention as of right

A

Intervention is available as of right when the applicant claims an interest in the property or transaction that is the subject matter of the action, AND the disposition of the action without him may impair his ability to protect that interest

49
Q

Permissive intervention

A

Intervention is permissive when the applicant’s claim or defense and the main action have a question of law or fact in common. Permissive intervention must be supported by its own jurisdictional grounds and is discretionary with the court

50
Q

Class Action

A

CANT: commonality (common question of law or fact), adequate representation, numerous so that joinder of all members is impracticable, and typicality (named parties’ interests are typical of the class)

51
Q

Class will be certified if

A

(1) separate actions would create a risk of inconsistent results or impair the interests of unnamed parties; (2) the defendant has acted or refused to act on grounds applicable to the whole class and injunctive or declaratory relief is appropriate for the class as a whole; or (3) common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication

PID: prejudice, injunction, damages

52
Q

Rule 26(f) conference

A

Parties must confer as soon as it is practicable to: (1) consider their claims and defenses, the possibility of settlement, initial disclosures, and a settlement plan AND (2) submit to the court a proposed discovery plan addressing the timing and form of required disclosures, the subjects on which discovery may be needed, and the timing of discovery, and relevant orders that may be required by the court

53
Q

Initial disclosures

A

Within 14 days, need:

(1) names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses, UNLESS the use would be solely for impeachment;

(2) copies or descriptions of documents, ESI, and tangible things that are in the disclosing party’s possession or control that the disclosing party MAY use to support its claims or defenses, UNLESS the use would be solely for impeachment;

(3) a computation of damages claimed by the disclosing party and copies of materials upon which the computation is based AND

(4) copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.

54
Q

Scope of discovery

A

relevant, proportional, not privileged

55
Q

Limitations on discovery

A

court is required to limit frequency or extent of discovery if the court determines that (1) discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient or less expensive or (2) the party seeking discovery had ample opportunity to obtain the information by discovery in the action

56
Q

Interrogatories

A

Any party may serve no more than 25 written interrogatories on any other party. May NOT be used on nonparties. Must be answered fully and separately under oath by the party to whom they are directed, unless the responding party objects by stating the specific grounds for the objection. The responding party must serve its answers and any objections within 30 days after being served with interrogatories

57
Q

Pretrial Conference Sanctions

A

Court may issue sanctions if a party (1) fails to appear; (2) fails to participate in good faith; or (3) fails to obey a pretrial conference order.

Dismissal of an action is a severe sanction, and generally it is only appropriate when a party’s conduct is serious, repeated, extreme, or otherwise inexcusable

58
Q

Rue 11(b) Sanctions: Signature

A

Every paper must be signed by at least one attorney, MUST strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.

59
Q

Rue 11(b) Sanctions: Representation to Court

A

(1) not for improper purpose; (2) claims are warranted by existing law or by a non-frivolous argument; (3) factual contentions have evidentiary support

60
Q

Rue 11(b) Sanctions: Opportunity to Correct

A

Before a party may seek sanctions under Rule 11, the party must serve on the opposing party a motion that describes the specific conduct that allegedly violated the rule. The opposing party must be given 21 days to withdraw or correct. If 21 day passes, pleading is not corrected, motion for sanctions filed with court

61
Q

Rue 11(b) Sanctions

A

Court may issue sanctions for failing to comply with above requirements; sanctions may include non monetary directives, an order to pay a penalty into court, or, if imposed on motion, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation

62
Q

Motion for Summary Judgment

A

May be filed at any time until 30 days after the close of discovery. Must be granted if, from the pleadings, affidavits, and discovery materials on file, when viewing the evidence in the light most favorable to the nonmoving party, it appears that: (1) no genuine dispute of material fact exists and (2) the moving party is entitled to judgment as a matter of law. May be partial; not appealable

63
Q

JMOL

A

May be filed by either party after the close of the nonmoving party’s evidence OR at the close of evidence. Will be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party.a JMOL is a prerequisite for the making of a RJMOL

64
Q

RJMOL

A

no later than 28 days after the entry of judgment, may only be raised if a JMOL was previously filed. Motion will be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party.

65
Q

Motion for new trial

A

(1) error made at trial makes judgment unfair; (2) newly discovered evidence existed at the time of trail was excusable overlooked and would likely have altered the outcome of the trial; (3) prejudicial misconduct of counsel, a party, the judge, or a juror; (4) a verdict that is against the clear weight of evidence; (5) a verdict that is based on false evidence such that a new trial is necessary to prevent injustice; OR (6) a verdict that is excessive or inadequate

EMUs NEver Prejudge Weight, especially if false evidence. That would be damaging.

(error makes unfair) (newly discovered evidence) (prejudicial misconduct) (against weight of evidence) (based on false evidence) (damages excessive or inadequate).

66
Q

Verdict is excessive

A

Court may order a new trial or remittitur. Additurs are not permitted in federal court, the only option is a new trial

67
Q

Res Judicata (Claim Preclusion)

A

To bar a claim under res judicata: the original claim must have resulted in a final judgment on the merits; (2) the original and later field causes of action bust be sufficiently identical, or related to the same transaction or occurrence, and (3) the claimant and the defendant must be the same

68
Q

Collateral Estoppel

A

To bar an issue under collateral estoppel: (1) the issue sought to be precluded must be the same as that involved in the prior action; (2) the issue must have been actually litigated in the prior action; (3) the issue must have been determined by a valid final judgment on the merits; and (4) the determination of the issue must have been essential to the prior judgment

69
Q

Collateral Order Doctrine

A

The doctrine of collateral order allows a party to appeal interlocutory rulings if the ruling decides a claim or issue: (1) that is separable from and collateral to the merits of the case; (2) involves a serious and unsettled legal question; and (3) would be effectively unreviewable if the court waited until final judgment to hear the claim or issue

70
Q

Effect of a Default Judgment

A

A default judgment will have a preclusive effect if the court had valid personal and subject matter jurisdiction. States vary as to the extent of preclusion a default judgment has, but generally, a party is barred from asserting defenses or compulsory counterclaims that could have raised in that original action

71
Q

Statutory requirements for PJ

A

States generally require that the defendant: (1) is present or domiciled in the forum state at the time of service; (2) has given express or implied consent to jurisdiction; or (3) meets the requirements of the forum state’s long arm or other statute

72
Q

Constitutional requirements for PJ

A

(1) contacts; (2) relatedness; (3) fairness

73
Q

PJ contacts

A

Contacts must show that defendant: (1) purposefully availed herself of the forum state’s laws; (2) knew or reasonably should have anticipated that her activities in the forum made it foreseeable that she may be “haled into court there”

74
Q

PJ relatedness

A

If the claim is related to the defendant’s contact with the forum, the court is more likely to find that jurisdiction as to that claim is fair and reasonable; OR if the claim is unrelated to the defendant’s contact with the forum, the court must have “general jurisdiction” over the defendant, which requires him to be “at home”

75
Q

PJ fairness

A

Court will consider: (1) whether the forum is “so gravely difficult and inconvenient” that the defendant is put at a severe disadvantage; (2) the forum state’s legitimate interest is providing redress for its resident; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in efficiency; and (5) the share interest of the states in furthering social policies

76
Q

14 days

A

Print Jams!!

P - post 12(b) Answer

R - required initial disclosures

I - impleader after answer

N - notice of hearing

T - TRO expiration

J - jury demands

A - amended pleading response

M - more definite statement

77
Q

21 days

A

CASAS

CA - Complaint (or counterclaim) Answer

S - Strike

A - Amend Pleading

S - Sanction Filing Delay

78
Q

14 days JCAT

A

jury, class action certification appeal, expiration of TRO

79
Q

21 days WAAF

A

Withdraw pleading after Rule 11 motion, amend, answer or file

80
Q

28 Days Try again

A

RMJOL & new trial

81
Q

30 3RA

A

removal, remand, return request to waive, appeal

82
Q

60 days

A

Time to answer the complaint or file a 12(b) motion if D waived service of process

83
Q

90 days

A

General time limit for service of process

84
Q

1 year

A

Outer time limit for removal based on diversity

85
Q

If MEE fact pattern discusses a case that takes place in federal court, start with

A

“Federal district courts may exercise personal jurisdiction to the same extent as the courts of general jurisdiction of the state in which the district court sits.”

86
Q

If the issue is specific jurisdiction

A

“State courts of general jurisdiction may exercise personal jurisdiction over nonresident defendants to the extent authorized by both the state’s long-arm statute and the Due Process Clause of the Fourteenth Amendment of the US Constitution.”

Then:

“The Due Process Clause of the Fourteenth Amendment permits states to assert personal jurisdiction over nonresident defendants who have established minimum contacts with the state such that the exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice.”

87
Q

Klaxon doctrine

A

A federal district court sitting in diversity must apply the choice of law approach prevailing in the state in which it sits.

88
Q

Fairness factors for nonmutal offensive issue preclusion

A

whether: (1) the party to be bound had a full and fair opportunity to litigate in case 1; (2) the party to be bound had a strong incentive to litigation case 1; (3) the party asserting issue preclusion could have easily joined to case 1; (4) there had been no inconsistent findings on the issue.

Rules (15 decks)

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