Civil Procedure Flashcards
who can’t remove a case?
the plaintiff
why would a plaintiff file a lawsuit somewhere then remove it??
where and when can a defendant not remove a a case to?
their home state in a diversity action
how do cases get federal question status?
their cases ARISE under federal law
what is waiver and why would someone do it?
waiving service means that you are not making the other side formally serve your dumbass a complaint and summons to court.
you waive it to receive 60 days (or 90 foreign) to respond to a complaint rather than the standard 21 from day of service.
what is abuse of discretion? what is the key word?
when a judge has a CHOICE on what to do and makes a little judgment call based on his understanding of the law and facts.
the key word is PERMITTED.
who can enter the default judgment if no one shows up and doesn’t file a single thing? what is the process?
baby clerk
AFTER plaintiff submits an affidavit showing how much is owed.
When the amount is for a sum certain and the defendant who does not appear is not mentally disabled or a minor.
who can enter the default judgment if somebody shows up once then stops? what is the process?
daddy judge must enter the default after a hearing, which the other party must serve notice to at least 7 days before the hearing.
bench trial
when a case is “tried to the court”
a judge is the only one deciding the case.
under FRCP 52(a)(1) the judge needs to “find the facts specially and state the conclusions of law separately” either orally or written.
voluntary dismissal rules and what it operates as
you can voluntarily dismiss it once, but if you try to voluntarily dismiss it twice, you aren’t allowed to refile.
a second voluntary dismissal operates as an ADJUDICATION ON THE MERITS = YOUR SHITTY PRO SE LAWSUIT IS NOW DISMISSED WITH PREJUDICE.
motion for relief
basically saying “hey look.. you need to vacate or amend the judgment against me because some serious bullshit happened.” the court either dismisses the case, grants you a new trial, or changes the amount of money you have to pay.
motion for relief - 3 normal things
one year to bring them up.
mistake, fraud, newly discoverable evidence.
motion for relief - newly discoverable evidence
must be evidence that he could not have reasonably discovered without reasonable due diligence.
evidence they couldn’t have discovered if they tried.
motion for relief - three weird ass things
you have a reasonable time to file these
1. if the judgment is void (court lacks SMJ)
2. if the judgement is discharged (judgment has been fully paid)
3. any other reason that justifies relief
motion for relief - slip of the pen
anytime
If the court enters in a judgment for $1,000,000 instead of $10,000, you can get relief in this scenario ANY TIME (no time limit)
some BS evidence got admitted and you got lost, how do you attack the verdict?
look for the QUICKEST way.
if a judge lets in bad evidence and you lose, the best way to attack the verdict is a motion for a new trial
how can you get a motion for a new trial? (3)
- the jury does some crazy shit
- the judge fucks up
- the jury gives way too high of a verdict
you can’t move for renewed judgement as a matter of law unless…
you first move for a judgment as a matter of law (at the end of the plaintiffs or prosecutors case)
what would you be renewing? NOTHING
how do you win a renewed judgment as a matter of law? Sunny Skies
more than a mere scintilla of evidence
SS = Sunny Skies = Substantial or Scintilla
the answer will say “substantial evidence” or “more than a mere scintilla”
what word in an answer choice is always right
substantial
anytime the question says “personal jurisdiction”…
pick the answer with “minimum contacts”
what is the standard for judgment as a matter of law? large snake eat birds
they can only grant JMOL if the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for that party.
large snake eat birds = legally sufficient evidentiary basis
the citizenship of an LLC
is the citizenship of the states of its members. even general and limited partners.
can you extend a renewed judgment as a matter of law
no - 28 days and that’s fucking it.
what is legally sufficient evidence?
scenario 1: the other side has no facts about one of the elements
scenario 2: the other side has some really shitty facts
torts and JMOLs
not be granted because negligence itself is usually a factual question.. meaning there is almost always a factual dispute that the jury can debate.
standard for summary judgment / god damn mother fucker
god damn mother fucker
GDMF
there is no Genuine Dispute of Material Fact
judgment on the pleadings
when a judge rules on the case by only looking at the complaint and answer.
EVERY PLEADING MUST BE FILED.
you must answer a counter claim, not just file for judgment on the pleadings.
motion to strike for irrelevant evidence
they will move to strike your motion immediately if it uses a fake defense to try and defend itself or seeks improper relief under the wrong state. also, if it is inappropriate in anyway.
what happens if you didn’t object?
plain error is your only recourse
“plain error that affected substantial rights” is the answer
can you have fewer than 6 jurors?
yeah if everyone agrees to it.
must be unanimous in criminal trials.
when are you not guaranteed the right to a jury trial?
in equitable actions (not money)
when can you bring your jury demand?
within 14 days after defendant files the answer
priority of legal and equitable claims?
get to the bag first.
if you have equitable and legal claims, you must try the legal claims first and then the judge will deal with your equitable claims.
when can a final pre-trial order be modified?
to prevent manifest injustice
when can discovery start?
can’t start until after a rule 26(f) discovery conference.
scheduling order for discovery can only be modified for good cause.
the weirdo that files for summary judgment before discovery
You’re just trying to shut me down instantly when you haven’t even given me time to get my fucking facts and discovery? Who do you think you are?
I CAN’T GET FACTS…. UNLESS WE GET TO DISCOVERY
look for trigger words: essential, facts
“the essential facts are unavailable to goat.. and therefore more time for discovery is required”
impleader vs crossclaim
with impleader, you bring a motherfucker in who is not apart of the lawsuit (but will be liable to you if you lose)
with crossclaim, you sue a motherfucker on the same side of the lawsuit as you that is ALREADY in the lawsuit.
no finger pointing
you can’t implead or cross claim someone saying they are solely liable to the plaintiff
permissive intervention / intelligent cats love fish
when a non-party’s claim shares a COMMON question of LAW OR FACT with an existing claim, the nonparty can intervene.
intelligent cats love fish
intervention - common - law - fact
rule 11
prevents filings which are frivolous, legally unreasonable, without factual foundation
rule 11 safe harbor provision
before you move for sanctions with daddy judge, you have to serve a motion for sanctions on the opposing party to give them 21 days to correct their fucked up pleading.
if they withdraw or correct within 21 days = no sanctions
forum non conveniens v transfer
both of these things are just about convenience of the parties and location of the evidence and witnesses.
transfer: federal court to federal court - decision is up to judge and has to be where it could have originally been filed.
forum non: from federal system to outside federal system (because the witnesses are located there)
forum selection clause
they are valid - proper remedy is transfer
compulsory counterclaims
if someone wants to counter sue someone and it arises OUT OF THE SAME TRANSACTION OR OCCURRENCE … you HAVE TO.
you either use it or lose it.
pleading standard (complaint)
complaint has to state a claim that is ”plausible on its face”
It basically has to have enough factual content for the judge to draw an inference that a motherfucker might be negligent.
the complaint shows plausible entitlement to relief.
amendments (4)
amendment as of right: you can amend once as of right within 21 days.
amendment with permission after 21 days: on day 22 you can amend with consent of the court or the other party.
amendment adding a claim past the SOL: you can amend if it’s related to the same FACTS
amendments adding a new party: mistake of identity and other party actually gets served within SOL
who is a little bitch?
the state. the FRCP makes all state rules its little bitch.
temporary restraining order
orders just for a limited time period (14 days .. up to 28) that tells someone to stop doing shit to maintain the status quo.
TRO must:
1. state reasons why it was issued
2. state its terms specifically
3. and describe in reasonable detail the acts restrained.
You need to give the other side notice unless you write a little affidavit showing immediate and irreparable injury would occur and you have to certify in writing efforts to give notice to the other party and why it should not be required.
after 28 days it is a preliminary injunction.
claim preclusion effects of a federal court judgment
whatever court number 1 says, just do that for court number 2.
The problems almost always are Federal to State and then the answer is just “look to the federal law.” Sometimes they ask about a state judgment preclusive effect on the federal courts… the answer will just essentially say “Look to the state law.
if it is state court judgment having effect in another state court or federal law, the answer will be “full faith and credit clause.”
choice of law steps
- what state is the lawsuit in
- now use whatever law that states selects for. use their choice of law.
how do we serve individuals / salmon are incredibly delicious
salmon are incredibly delicious
S A I D
State law
Agent
Individual themselves
Dwelling
how do we serve corporations / S.O
S.O
State law methods
Officers (or agents)
how do we serve foreign corporations
any means allowed by the court… including email.
what happens if i forgot / just didn’t deliver timely service?
you need to show good cause… it has to be something beyond your control.
for minimum competency, we need …. (pj)
minimum contacts.
no contacts, no pj.
one isolated unrelated contact, no pj.
bulge rule for impleader and necessary parties
NOT for original defendants.
allows defendant to bring in and serve impleaders and necessary parties if they’re less than 100 miles outside the jurisdiction, even if it is not allowed under the state long arm statute.
waiver of motion to dismiss / planets vanish past pluto
basically when someone hits you with that complaint, you can either file an answer or a motion to dismiss.
there are 7 motions to dismiss you can raise, but if you don’t raise THESE FOUR RIGHT AWAY…. you waive them.
personal jurisdiction
improper venue
process is insufficient
process service is insufficient
supplemental jurisdiction three steps
- we need an it girl to get us into the federal court
- the bouncer shows up - if you’re a plaintiff, we are not letting you “get around” the supplemental jurisdiction rules using cute little tactics. can’t ruin diversity jurisdiction.
- the court has to see how you are behaving - if it raises complex issues of state law, bye; if the claim predominates over the other claims bye; if they dismissed claims they have og jurisdiction for, they may dismiss the state law supplemental claim.
can two plaintiffs join up their stupid claims when one of them doesn’t meet the amount in controversy?
yes - so long as the insufficient claim arises from the “same case or controversy” it can be joined supplementally under FRCP 20.
final judgment rule
you can’t appeal until the court enters a final judgment on the entire case.
a situation when you can appeal when there is not a final judgment:
- if there is more than one claim - you can appeal a partial judgment on just one claim if daddy judge says “there is no just reason for delay” and oNLY IF THE CLAIM IS DISTINCT AND SEPARATE.
the appellate court does NOT want to see my stupid face twice about literally the same issue.
The whole POINT of this rule is that some stuff needs to be appealed and we can sacrifice a little judicial efficiency for us to appeal it EARLIER.
HOWEVER… THE POINT IS NOT TO ALLOW TWO OF THE EXACT SAME DUMBASS THINGS TO BE APPEALED one after the other
de novo
if the appellate court is looking at a legal issue, they are reviewing that shit with fresh eyes.
findings of fact by a jury or judge
that shit has to meet the clearly erroneous standard, the hardest standard to meet.
necessary party
Sometimes we need a motherfucker in the lawsuit to pay everybody, or maybe we would really fuck him over if he wasn’t joined (his interests would be IMPAIRED if you will my Goats).
indispensable party
Sometimes we can’t join the little fucker though, because he ruins diversity (remember how everybody needs to be from different states and shit?)
So now the judge smokes a pipe and thinks to himself “Is this fucker so necessary… he is in fact… indispensable. Can the lawsuit go on without him?”
the court determines _____ whether the party is indispensable
in equity and good conscience
Step 1: we need a motherfucker in the lawsuit to get everyone money or because his interests will be fucked up = he is necessary
Step 2: The motherfucker is from a weird state and ruins diversity
Step 3: The court has to determine whether the motherfucker is SO necessary he is in fact… INDISPENSABLE… AND WHETHER OR NOT IN EQUITY AND GOOD CONSCIENCE THEY MUST DISMISS THIS ACTION WITHOUT HIM
discovery
needs to be proportionate and relevant.
interrogatories?
25 (including sub parts) allowed
each interrogatory and admission is signed and you have a duty to investigate your answers.
depositions
10-1-7
* 10 per side
* one day maximum
* 7 hours max
request for physical and mental exams require a court order.
initial disclosures
you have to disclose potential SUPPORTING witnesses
medical expert disclosures
you must disclose expert testimony at least 90 days before the date set for trial.
if the evidence is intended SOLELY to contradict or rebut evidence from the other side, you only need 30 days.
if you want work product
you are going to need a showing of undue hardship.
what type of class action are you required to give notice through reasonable means?
when all the class members share a common question of law or fact.
what three things do we need to initiate a lawsuit in federal court?
- subject matter jurisdiction - the federal court must have power over the claim
- personal jurisdiction - the federal court must have power over the parties
- service of process
SMJ quick facts
federal court’s power over a claim
1. it can be challenged at any time
2. it can NEVER be waived.
what kind of jurisdiction do federal courts have?
limited jurisdiction
It means that they only have the jurisdiction that Daddy Congress gives them.
And Daddy Congress says they can only hear two main types of cases:
(1) federal question cases, and
(2) diversity cases.
Kinda 3) supplemental jurisdiction
federal question cases
If a case arises directly under Federal Law, in the actual complaint itself, then it can get into Federal Court.
They may try to say a plaintiff is raising a negligence claim based on an OSHA workplace safety violation.
No.
No.
No. You have to be directly asserting a federal right. Not a state law negligence claim based on an OSHA violation.
anticipated federal defenses
do not make a claim arise under federal law.
we only look at the complaint and a right to get relief directly under a federal law.
The defendant’s answer or counterclaim is COMPLETELY IRRELEVANT TO THE FEDERAL QUESTION ANALYSIS!
diversity jurisdiction
- amount in controversy must be over $75,000
- must be between citizens of two different states
amount in controversy requirement for DJ
good faith allegation that your claim exceeds $75,000. The other side can ruin this by showing that it is clear to a legal certainty that you could NEVER get $75,000.
amount in controversy requirement - injunctions
look and see if the injunction itself is worth more than $75,000.
if you knocking over my house with a bulldozer would cost me $200,000, the injunction stopping your bulldozer, my AIC is $200,000
amount in controversy - aggregation situation # 1
1 plaintiff v 1 defendant
If there is a single plaintiff, and a single defendant, the plaintiff may add up all their claims (even if they are unrelated) to get to the $75,000.01 threshold.
amount in controversy - aggregation situation # 2
1 plaintiff v 2 defendants
A single plaintiff cannot aggregate their claims to meet the $75,000.01 threshold against multiple defendants UNLESS they are jointly liable to the plaintiff.
amount in controversy - aggregation situation # 3
two or more plaintiffs
Two or more plaintiffs cannot aggregate their claims unless they are seeking to enforce a right of which they have a common or undivided interest. This simply means that if one plaintiffs claim fails, the other plaintiff will collect a larger share. (let’s say partners in a business 50/50)
complete diversity on each side of the lawsuit
can’t have same citizenship on opposite sides of the v
when is diversity decided?
at the time the case is filed
If you unexpectedly get a job in another state after the case is filed, that doesn’t matter.
However, if you knew you were going to take this job and move right after you filed… that could be a big fucking problem.
establishing domicile - head foot
- foot: presence in the state at some point.
- head: subjective intent to make the state you are present in a permanent home for yourself
