CIVIL PROCEDURE Flashcards
In what stage of the proceedings MUST a challenge to PJ be asserted by the Defendant?
A challenge to PJ MUST be asserted in the first pre answer motion (if no pre answer motion, in the answer), or else the defense of PJ is WAIVED and the D implicitly consents to that court’s jurisdiction over them.
Can a preliminary injunction be issued without notice to the adverse party?
NO! PI may be sought by a party prior to trial on the merits of the complaint but may NOT be issued without notice to the adverse party.
When can a TRO be granted?
TRO can be granted when necessary to prevent irreparable injury to party + injury will result before a PI hearing can be heard. Can be granted ex parte (w/o notice to the other party) if moving party can show (1) specific facts showing an immediate and irreparable injury; (2) an effort to give notice to the adverse party, and (3) security to cover possible costs and damages
Where must a D seeking removal of a case from state court to federal, file notice?
D seeking removal must file a notice of removal in the federal district court in the district and division within which the ACTION IS PENDING! e.g. original lawsuit filed in state A. the lawsuit can only be removed to the fed district court that embraces the State A court (you can’t go directly to state’s fed district court where you want to remove action to). If you fail to do this, this is enough to grant a MOTION FOR REMAND back to state court.
How must a federal court analyze personal jurisdiction over a party?
A federal court can piggyback onto the longarm statute of the state in which it sits. If the state court would have personal jurisdiction over this defendant, then a federal court in the same state will as well. A federal court must analyze PJ as if it were a court of the state in which it is located.
When must the defense of PJ be asserted in a motion to dismiss?
The defense of lack of PJ is only valid if presented in the FIRST motion to the court. Even if it was included in an answer, if the D had filed a preanswer beforehand, it will be waived (as it should have been in the preanswer).
Can lack of PJ be waived?
YES! If it is not raised in the FIRST motion (i.e. in the first preanswer motion) then it is waived.
Can lack of SMJ be waived?
NO!
What is attachment?
The process by which someone’s property is seized in accordance with a writ or judicial order for the purpose of securing a judgment yet to be entered. Federal courts are authorized to issue provisional remedies, including attachment, at any time following the commencement of the action for the purpose of securing satisfaction of the potential judgment.
What is a motion of relief from judgment (motion to set aside) and what kind of mistake does it seek to remedy?
When you ask the trial court to set aside or amend the judgment. Under FRCP Rule 60(b), a court may relieve a party from final judgment on one of these grounds: (i) mistake/excusable neglect; (ii) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial; (iii) fraud/misrep by opposing party; (iv) judgment is void; (v) judgment is based on an earlier judgment that has been reversed or vacated. Grounds (i) (ii) (iii) - motion must be made w/in a reasonable time, not to exceed 1yr, others = a reasonable time.
What is the doctrine of forum non conveniens and what may a court do under it?
A court having jurisdiction over a particular case may use its discretion to decline to exercise that jurisdiction if the court concludes that the action could be more appropriately tried in some other jurisdiction.
Which defenses must be raised by the D the first time he files a motion or in his answer?
- Lack of personal jurisdiction
- Improper venue
- Insufficient Process/improper process (problem with a document)
- Insufficient/improper Service of Process
What is the proper method of dismissing a case on the basis of lack of PJ?
Filing a motion to dismiss. Lack of PJ is one of several defenses that are waived if the D does not raise them in the D’s pre-answer motion or answer (whichever the D files first). If not, it is waived as a defense.
What is a motion for judgment on the pleadings?
This ask for the court to evaluate the moving party’s contention on the face of the pleadings and make a judgment.
What do you look at when someone is seeking to reopen a judgment on the basis of mistake?
This is a motion of relief from judgment/motion to set aside. For a motion of relief on the basis of mistake, it must be filed within 12 months of the judgment being entered into. This applies even if the party move promptly after learning of the mistake for which relief would be sought.
Is another potential defendant who might be jointly or severally liable a required party in an action?
No! The possibility of joint and several liability does not automatically render a defendant a required party.
When will a motion to dismiss be granted?
When does compulsory joinder apply?
Applies to ‘required’ (i.e. ‘necessary’) parties: any person who either (i) is required for the court to be able to accord complete relief among the existing parties; OR (ii) has such an important interest in the case that not joining them will either cause them a practical impairment/impediment in protecting their interest (i.e. their interest will be harmed) OR expose an existing party to a substantial risk of multiple or inconsistent liability.
What does a ‘necessary’/’required’ party mean?
You do not necessarily need a necessary party’s presence to continue with the case. It is just necessary to join them if feasible. If the court decides to dismiss rather than proceed with the absentee, the absentee is called ‘indispensable’.
What needs to be in place for a necessary/required absent party to be joined to an action? i.e. for the joinder to be ‘feasible’.
Joinder is feasible if: (i) there is PJ over the absentee and (ii) there will be federal SMJ over the claim by or against the absentee
What happens when a party seeks to appeal a district court’s order granting or denying a class certification?
A district court’s order granting or denying certification of a class action can be appealed w/in 14 days of entry of the order. The Court of Appeals has broad discretion in deciding whether to hear the appeal. If the appeals court decides to hear the appeal, proceedings are NOT stayed in the district court unless the DC or CoA so orders.
How can a nonmoving party squash the moving party’s movement for summary judgment?
By offering evidence that raises a material issue of fact - showing that a reasonable jury could find for the nonmoving party. I.e. provide evidence that, if uncontroverted, would compel a jury verdict in his favor. If there is no genuine issue of material fact, the court is likely to grant a summary judgment.
What does Rule 11 of FRCP impose?
In Federal courts, pleadings must be nonfrivolous and not issues to harass or delay the adversary. A lawyer who fails in this duty will be fined or otherwise sanctioned.
Under Rule 11 of the FRCP, when a laywer files a pleading, what does he certify, to the best of his knowledge?
- The pleading is not presented for an improper purpose (e.g. harass, cause unnecessary delay, needlessly increase cost of litigation).
- claims/defenses/other legal contentions are warranted by existing law or a non-frivolous argument for a law change
- Factual contentions and denials have evidentiary support or are likely to after further investigation
What does and does not Rule 11 of FRCP apply to?
It applies to pleadings and sanctions regarding matters in violation of the rule.
It does NOT apply to disclosures and discovery requests, responses, objections and motions. It also does NOT apply to failure to respond to questions during a deposition.
Under FRCP, what should pleadings do?
Give notice to all parties of the nature of the lawsuit, sufficient to allow other parties to make pre-trial and trial preparation.
In a scenario where a plaintiff pleads something that involves him both relying and not relying on a statement made by the D, what is going to be the issue to come up here? (rule 11)
There is no way that he, in good faith, relied and did not rely on the D’s statement.
It is possible that he could have inconsistent evidence with respect as to whether the D was telling the truth but he can’t say he both relied and did not rely on the statement.
What standard of review does the court of appeals use when reviewing decisions on questions of law made by the district judge?
De novo standard - no deference is given to the district judge when reviewing a question of law.
How do appeals courts react to an issue involving finding of facts by a jury?
Appellate courts are very reluctant to reverse. Federal courts are held to a very high standard for reversing a jury’s findings. Appeals court will generally ONLY overturn a jury verdict on a fact-finding error if there is COMPLETE absence of proof of some material issue.
Generally, only FINAL orders are reviewable on appeal, what does this mean?
A final order is one that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties but as to all causes of action involved.
Ask: after making this order, does the trial judge have anything left to do on the merits of the case?
How do appeals courts react to an issue involving finding of facts by a judge in a bench trial?
Federal courts must not set aside findings of fact made from the bench unless those findings were clearly erroneous.
When must an appeal be filed?
A notice of appeal must be filed in the district court within 30 days from the entry of the judgment appealed.
What standard of review is used by the appellate courts when reviewing discretionary rulings by the trial court e.g. evidentiary or discovery rulings - whether to grant a motion or amend pleadings etc
The abuse of discretion standard of review - the reviewing appellate court will be highly deferential to the trial court judge’s factfinding ability.
What is a harmless error (appeals)?
Not every error (even an error of law) requires reversal on appeal. No reversal is required if the error is harmless, i.e. it did not affect the outcome of the case.
Explain the co-plaintiff exception to supplemental jurisdiction
When a co-P’s claim doesn’t meet the amount-in-controversy requirement of a diversity claim (i.e. it be MORE than $75k), it can still get supplemental jurisdiction if the insufficient claim is so related to claims in the action that are within the court’s original jurisdiction that they form part of the same ‘case or controversy’. The citizenship diversity in the case must be preserved.
What is ‘removal’? Who can do it?
The D’s right to send a case originally filed in state court to the federal district court for adjudication. ONLY the D can remove.
What must be in place for a civil action to be removed from state to federal court?
The federal court MUST have SMJ over the claim based on diversity or federal question jurisdiction
When must notice of removal be filed in federal court?
D must file notice within 30 days after service of process by P.
The notice must be filed in the district court where the state action is pending.
If an original action is pending in state X and D files a notice for removal, which district court will be the proper venue for removal?
A D must file a notice of removal in the district court where the state action is pending. This means that the proper venue for removal is the federal district court located in the state where the original case was filed SO the proper venue for removal is the district court in state X.
P sues D in state court in state A. D files a notice of removal in the federal district court of state B. P files a timely motion to remand to the state court in state A.
Should the motion to remand be granted and why?
Yes! D filed the notice of removal in the federal district court in state B BUT the action was pending in state court in State A. SO D sought removal to the incorrect court and the action should proceed in state court in State A.
A D must file a notice of removal in the district court where the state action is pending.
In what two scenarios is removal not possible un a diversity action?
- Where the D is a citizen of the state where the action was originally brought (i.e. only out of state D’s may remove diversity cases to federal court).
- Case should not be removed if over 1 year has passed since it was filed in the state court UNLESS P acted in bad faith to prevent the D from removing the case.
If it was discovered that an attorney has used their 3 peremptory challenges in a racially discriminatory manner, what would happen to the verdict?
It would result in a reversal of the judgment on the verdict.
Race-based peremptory challenges in civil litigation between private parties violate the Equal Protection Clause.
What three things must be true for a claim to be precluded (res judicata)?
- Same claimant suing the same defendant
- Case 1 ended in a valid final judgment on the merits
- Case 1 and 2 must be the ‘same claim’ - the same cause of action
NB - every judgment is on the merits unless it is ‘without prejudice’ or based on a lack of personal/SM jurisdiction, improper venue or a failure to join an indispensable party.
When the claimant wins the earlier lawsuit, the cause of action is ‘merged’ into the judgment - the claimant cannot sue again on the same cause.
What is the primary rights doctrine and how does it relate to claim preclusion? What is the contrasting majority view?
Majority view = a claim is any right to relief arising from a transaction or occurrence.
Primary rights doctrine = minority view - there are separate claims for property damage and personal injuries that arise in a single event
What must apply for issue preclusion?
- Same issue was actually litigated and determined;
- Issue was essential to the judgment (ie if decided on in the opposite way it would change the result of the case);
- Valid final judgment on the merits;
- Party against whom preclusion is asserted must have had a full and fair opportunity to litigate the issue in the first suit
Whom can issue preclusion be used AGAINST?
ONLY against someone who was a party to the original case or in ‘privity’ with a party.
So you can’t litigate a dispute with your neighbor and win and then refuse to have the same legal dispute with someone else, UNLESS that other person is in privity with the person that you had the original dispute with. This is a due process principle - every person is entitled to their day in court before their property/rights are taken away or affected.
How do you determine whether the same issue was actually litigated in the prior action? (issue preclusion)
The issue must have ACTUALLY been litigated and determined, SO if a default or consent judgment is entered, there is no issue preclusion as to the facts that WOULD have been tried had the case gone forward.
When is an issue essential to the judgment (issue preclusion)
Look at how the issue was decided by the trier of fact - e.g. if a jury renders a general verdict for a D and doesn’t address issues of contributory negligence - there is no way of knowing whether the jury found D was negligent.
The judgment must DEPEND on the ISSUE of FACT DECIDED
e.g. personal injury action, jury finds that neither P or D is negligent and so renders a verdict for D. The finding that P was not negligent was NOT essential to the judgment and so there is no issue preclusion for a later suit.
Against whom is issue preclusion used?
ONLY against someone who was a party (or in privity with a party) in the previous case. This is DP.
By whom is issue preclusion used?
ONLY someone who was a party (or in privity with a party) in the previous case can use IP. (NOT imposed by DP)
What is a valid final judgment (issue preclusion)?
A valid, final, judgment ‘on the merits’. A judgment is valid as long as it is not void (e.g. lack of SMJ).
Generally = same process as determining if judgment is final for purpose of an appeal.
When is someone in ‘privity’ with someone from a prior action, thereby meaning issue preclusion CAN be used against them?
Issue preclusion can be used only against somebody who was a party to Case 1 or in “privity” with a party.
“Privity” means that a party to Case 1 represented someone who was not a party to Case 1 e.g. a class action binds all the members of a class even though not all class members are parties to the action, they were represented by the class rep.
A buyer and a homeowner are in privity with one another as successive owners of the same property.
What are some examples of where people are ‘in privity’ with one another?
People = in privity with one another if they share a substantive mutual interest, e.g.:
1. Landlord/tenant relationships (mutual interest in property and lease)
2. Grantor/grantee relationships (mutual interest in the property and transfer of ownership)
3. Receiving land from a common grantor - recipients of land from the same grantor have mutual interest in the property
4. Buyer and homeowner - substantive mutual interest in property
Can issue preclusion be used by someone who was NOT a party to case 1 (or in privity to a party)?
= nonmutual issue preclusion
- 2 types - nonmutual defensive issue preclusion and nonmutual offensive issue preclusion
Defensive = the person using preclusion was NOT a party to case 1 and is the defendant in case 2
Offensive = the person using preclusion was not a party to case 1 and is the plaintiff in case 2
When can a court exercise personal jurisdiction over a D?
- When they consent
- When a D is present in a forum state and personally served
- When a D is domiciled in the forum state
- D has committed acts bringing him w/in the forum’s long arm statute.
The exercise of jurisdiction must then be constitutional (i.e. meet due process requirements).
What factors are to be considered to determine if the exercise of personal jurisdiction is constitutional?
Constitutional = if the D has minimum contacts with the forum so the jurisdiction does not offend the traditional notions of fair play and substantial justice AND there is notice.
Factors:
1. Contact
2. Relatedness
3. Fairness (for specific jurisdiction only)
If a cause of action does not meet the contact and relatedness requirements, can it still come under personal jurisdiction?
YES, if general jurisdiction is met - i.e. the D is ‘at home’ in the forum OR is present in a state served with process in that state/forum - the D can be sued at their home state for a claim that arose anywhere in the world.
When can a party move to strike material from a pleading? What can they strike?
A party can bring a motion to strike within 21 days after the complaint has been served OR court can do it on its own. Defendant will do this in their motion (i.e. their response to the complaint).
They can strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter.
NB - most courts are reluctant to strike material from a pleading. Most judges feel pleader should be given opportunity to show on the merits that the material in question is founded in fact.
Once a complaint has been served by a P, the D must respond within 21 days (60 if waived service). The D can respond with either a motion or an answer. What is the difference between a motion and an answer?
Motions are NOT pleadings, they are requests for a court order. This is where the D brings up: issues re the form of the complaint, waivable defenses, other defenses that can be raised later.
An answer is a PLEADING - in this the D responds to the allegations in the complaint (admit/deny/insufficient knowledge) and raise affirmative defenses (inject new facts into the case that would allow the D to win, e.g. SoF, SoL, self-defense).
When must the lack of personal jurisdiction defense be raised by the D?
It MUST be raised in the D’s first pre-answer motion (if none, then in the answer). E.g. a motion to dismiss is raised after the complaint has been served and so the defense of lack of PJ needs to be raised here!
SO if the D files a motion to dismiss for improper venue and then later attempts to contest PJ, it will NOT happen - he has waived his defense of lack of PJ by not raising it in the motion to dismiss.
What defenses MUST the D raise in their answer or he will waive the right to assert them?
3Ps and a V
1. Lack of PJ
2. Improper Venue
3. Insufficient process
4. Insufficient service of process
What are the 4 requirements for a class action?
- Numerosity - too many class members for practicable joinder
- Commonality - there must be some issue in common to all class members
- Typicality - the class rep’s claims are typical of the claims of the class
- Representative Adequate - the class rep will fairly and adequately represent the class.
NCTRA (never call tigers really angry)
