Civil Procedure Flashcards
T/F: Choice of law rules are considered substantive for Erie purposes
True
PJ Constitutional Analysis
Does the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?
General PJ
Defendant must be at home in the forum or must have registered to do business in the state and have appointed an agent for service of process there
Tag jurisidction
Where forum has general PJ over a Defendant who was voluntarily present + served with process in the forum
Corporation is “at home”
(1) in the state in which it is incorporated; (2) in the state in which it has its PPB
Specific PJ
When Plaintiff’s claim arises from or relates to Defendant’s contact with the forum
Fairness factors
(for specific PJ only) (1) burden on the defendant and witnesses; (2) forum’s interest in providing courtroom for its citizens who are allegedly being harmed by out-of-state defendants; (3) plaintiff’s interest in suing in forum where she was injured/at home
Contacts (PJ)
Defendant must have: (1) purposefully availed itself of forum state’s laws; and (2) knew or reasonably should have anticipated that its activities in the forum made it foreseeable that it may be “haled into court” there
Who can serve process?
Any person who is at least 18 years old and not a party to the action
When must process be served?
if serving D within U.S., service must take place within 90 days of the filing of the complaint
Substituted service
can be done only (1) at defendant’s usual place of abode; (2) with someone of suitable age and discretion; (3) who resides there
Diversity requirements
Case is between (a) citizens of different U.S. states (diversity) or (b) a citizen of a U.S. state and citizen of a foreign country (alienage) + amount in controversy exceed $75K
Complete Diversity Rule
diversity doesn’t exist if any plaintiff is a citizen of the same state as any defendant; diversity determined when the case is filed
Requirements to establish a new domicile
(1) physical presence in the new domicile + (2) intent to make that place your home for the indefinite future
FQ Requirements
citizenship of parties isn’t relevant; amount in controversy isn’t relevant; plaintiff’s claim itself must “arise under” federal law (i.e., is plaintiff enforcing a federal right?)
Timing of Removal
Defendant must remove no later than 30 days after service of the first paper that shows the case is removable
Limitations on Removal
Plaintiff can never ever remove; If removing based on diversity: shouldn’t be removed if any defendant is a citizen of the forum state and case should not be removed more than one year after the case was filed in state court
Timing of Remand
Plaintiff must move to remand no later than 30 days after the filing of the notice of removal (if remanding for a reason other than lack of SMJ - no time limit on that)
Issues that are clearly substantive for Erie purposes
Conflict (or choice) of law rules; elements of a claim or defense; statutes of limitation; rules for tolling statutes of limitations; and standard for granting a new trial because the jury’s damages award was excessive/inadequate
Waivable 12(b) defenses
Lack of PJ; improper venue; improper process; and improper service of process
Joinder: claims by multiple plaintiffs or against multiple defendants must
(1) arise from the same T/O and (2) raise at least one common question of law or fact
Tests for if a nonparty is “necessary”/”required”
without the absentee, the court cannot accord complete relief among the existing parties; or the absentee’s interest may be harmed if she is not joined; or the absentee claims an interest that subject a party (usually D) to a risk of multiple obligations
Compulsory Counterclaim
one that arises from the same T/O as the plaintiff’s claim
Crossclaim
one asserted against a coparty; must arise from the same T/O as underlying action but is not compulsory
Class Action Requirements
Numerosity; Commonality; Typicality; Representative Adequate
Type 1 Class Action
class treatment is necessary to avoid harm (prejudice) either to class members or to the nonclass party [rare]
Type 2 Class Action
seeks an injunction or a declaratory judgment because the defendant treated the class members alike
Type 3 Class Action
(1) common questions must predominate over individual questions; and (2) the class action is a superior method to handle the dispute
CAFA grants SMJ if:
there are at least 100 class members; any class member (not just the representative) is of diverse citizenship from any defendant; and the aggregated claims of the class exceed $5 million
Expert witness who may be used at trial
party must disclose via written report prepared by EW: opinions the EW will express, bases for the opinions, facts used to form the opinions, EW’s qualifications, and how much the EW is being paid
MSJ Standard
no genuine dispute on a material fact + entitled to judgment as a matter of law
Jury Demand must be made
no later than 14 days after service of the last pleading addressing a jury triable issue [usually the answer]
Claim Preclusion (Res Judicate)
(1) Case 1 and Case 2 brought by the same claimant against the same defendant; (2) Case ended in a valid, final judgment on the merits; and (3) Case 1 and Case 2 assert the same [i.e., any right to relief arising from a transaction or occurrence]
Collateral Order Doctrine
a claim or issue may be immediately appealable if it is too important to wait until the final judgment; 3 requirements: (i) the lower court must have conclusively determined the disputed question, (ii) the issue must be separate from and collateral to the merits of the main issue of the case; and (iii) the issue must be effectively unreviewable on an appeal from the final judgment
T/F: Generally speaking, when dealing with the preclusive effect of a judgment, the recognizing court should not give a judgment any greater effect than the rendering state would
True
Two Dismissal Rule
A dismissal by notice is without prejudice unless the plaintiff has previously dismissed any federal or state court action on the same claim, in which case the dismissal by notice is with prejudice
Preliminary injunction may be issued if applicant shows:
(i) she is likely to suffer irreparable harm if the injunction is not issued; (ii) she is likely to win on the merits of the underlying case; (iii) the balance of hardship favors her; and (iv) the injunction is in the public interest
In a case involving general verdict with written questions, if the answers are consistent with each other but inconsistent with the verdict:
the court may enter an appropriate judgment consistent with the answers (or tell the jury to reconsider/order a new trial)
In a case involving general verdict with written questions, if the answers are inconsistent with each other and one or more is inconsistent with the general verdict:
no judgment may be entered
RJMOL must be made within
28 days after entry of judgment and based upon the same grounds as the JMOL motion
When the district judge decides questions of law, the court of appeals reviews those decisions
de novo, giving no deference to the district judge
When the district judge district judge determines questions of fact in a non-jury trial, the court of appeals will affirm unless the findings are
clearly erroneous
In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless
reasonable people could not have made that finding
On discretionary matters that the judge decides, the court of appeals will affirm unless the district judge
abuser her discretion [deferential standard]
