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
aliens and domicile
aliens are all considered to be from the same state.. so they can’t sue each other in DJ.
BUT aliens who are admitted for permanent residence (i.e. green card) is treated like any other US citizen.
us citizens permanently domiciled abroad
are not considered citizens of a state or citizens of a foreign nation and they cannot sue or be sued under diversity rules.
who must prove citizenship in DJ?
the moving party must prove citizenship for themselves and the other party.
corporate citizenship
- where they file their articles of incorporation / where they are incorporated.
- principal place of business = nerve center = HQ = where big decisions are made.
citizenship of dead people, minors, and incompetents
their citizenship only, not their legal representative.
The legal representative is just considered THE SAME citizenship as the decedent, minor or incompetent.
diversity of citizenship when it comes to class actions?
federal court has jurisdiction over class actions if two circumstances are met:
1. the total amount claimed by all defendants must exceed $5 million.
2. there must be minimum diversity - ANY of the plaintiffs is a citizen of a different state than defendant.
five main cases the federal courts will NOT hear
- alimony
- child support
- divorce
- probate
- collusion - The court will deny subject matter jurisdiction when diversity has been created in a sneaky way.
supplemental jurisdiction
Supplemental jurisdiction allows claims that do not have an independent basis to get into federal court on their own (through federal question or diversity) to tag along with the cool kids so long as they are part of the same common nucleus of operative facts (which simply means they are part of the same transaction or occurrence or set of facts)
this is discretionary.
when would a court turn down a supplemental tag along state claim?
- the supplemental claim predominates over the main anchor claim
- all the anchor claims have been dismissed
- the state law claim presents a novel or complex issue of state law
1367(b) the limitation
1367(b) was specifically created to prevent jurisdictional tom-foolery and sketchy diversity work-arounds by the PLAINTIFF.
The whole rule is to prevent the plaintiff from using supplemental jurisdiction to get around the complete diversity requirement and sue people from the same state as him!
In plain English, the rule basically says: the plaintiff can’t use supplemental jurisdiction to add parties that would defeat complete diversity.
1367(b) how does it apply differently to plaintiffs versus defendants?
plaintiffs can’t use supplemental jurisdiction to fuck up diversity jurisdiction at all.
defendants can bring impleaders ONLY IF IT MEETS THE RULES OF SUPPLEMENTAL (common nucleus of operative fact) and fuck it up
plaintiffs versus defendants in civ pro
we hate plaintiffs they are mean and call all the shots so we can’t give them slack.
we feel bad for defendants bc they got dragged into court and have to do whatever the plaintiff wants.
exxon mobile
Two plaintiffs -> one meets the requirement of $75,000.01, the other doesn’t but is added supplementally… that is still a proper exercise of supplemental jurisdiction.
when we have a single plaintiff who meets the $75,000.01 threshold in diversity cases… we can add a second plaintiff supplementally if their claim is part of the same facts even if they are under the $75,000 threshold.
So if Goat sues Rainbow, Inc. for breaching a contract and alleges $80,000 in damages, the court can also exercise supplemental jurisdiction over Kevin Tipcorn’s breach of contract claim (involving the same contract) against Rainbow, Inc. for $30,000 even though it doesn’t meet the $75,000 threshold.
This is different from aggregation because two plaintiff’s can only aggregate their claims if they are enforcing a single, joint right (like a partnership where if one person withdraws the other person gets more money)…
here, the two breaches are separate and not a joint right but they are part of the same underlying facts (the scam contract).
states have what kind of jurisdiction?
concurrent jurisdiction
federal claims can be filed in state court and states have concurrent jurisdiction over diversity claims and most federal claims.
NOTICE of removal
allows defendants to remove the case from the state court to a federal court if the case could have originally been filed in federal court.
it’s called notice because it happens automatically, you don’t file a motion for it.
removal rules (5)
- the plaintiff can’t file it in state court and then remove it. ONLY THE DEFENDANT CAN REMOVE.
- state workers’ comp and fair labor standards act cases can’t be removed.
- a defendant can’t remove a case if they are from the state where the plaintiff brings the case. (forum defendant rule, only for DJ)
- if there are multiple defendants, they must all agree to remove.
- removal must be filed within 30 days of receiving the complaint. you can’t remove a case one year after filing. (that’s bc it could become removable later on… no federal q originally or no DJ originally)
if removal is improper, the plaintiff has 30 days to file a motion explaining why the removal is improper.
personal jurisdiction over a plaintiff
when they file the damn lawsuit, they are consenting to personal jurisdiction.
they voluntarily submit to it.
personal jurisdiction over a defendant
The test for whether we have personal jurisdiction over a defendant begins with one simple question: are they from the state of the court or from out-of-state?
four ways to automatically get personal jurisdiction over a defendant
traditional bases
1. domicile
2. physical presence
3. waiver
4. consent
one more way to get general jurisdiction over a business besides through citizenship
Amazon Rule
if the business has continuous and systematic contacts with a forum… the forum can exercise personal jurisdiction over them for any claims, even those unrelated to the sales.
Basically I’m saying this: some companies do so much fucking business in a state that they can be sued for absolutely anything in that state and personal jurisdiction will be proper… even without their principal place of business being there and even without them being incorporated there.
- Limited sales are not enough for continuous and systematic jurisdiction
- Only two-percent (2%) of your overall sales occurring in a state is not enough for continuous and systematic general jurisdiction over the corporation.
courts have PJ over in state corporations who are….
(1) incorporated in the state,
(2) have their principal place of business in the state, or
(3) have continuous and systematic contacts with the state.
physical presence in establishing pj
If a defendant is personally served with process in a state, even if they are just passing through briefly, the court will have automatic personal jurisdiction over them.
The only way it can be invalidated is if they were somehow tricked into showing up somewhere simply to be served.
Also can’t serve process on a defendant who is ONLY in a state to go to trial or take a deposition in an unrelated court case.
best chance of fighting physical presence establishing pj
Sometimes, even when you get tagged, the best argument is still going to be that you have a lack of a connection with that state and it’s unfair to hail you there.
If you tag me in anchorage Alaska I’m not just going to be like “haha great! You got me based on your 1L civ pro knowledge!”
No. I’m going to be fucking pissed.
The person being served will still fight back on the grounds of fairness and lack of contact… and even if it’s a losing argument after they’ve been tagged, it may be their only plausible argument.
auto personal jurisdiction - waiver
when a complaint is filed… you have one chance to challenge personal jurisdiction. If you don’t respond right away in your answer challenging PJ… you are deemed to have waived the defense.
Not challenging it in the first answer = it’s waived.
So if you file a lawsuit on me. And in my answer I don’t challenge personal jurisdiction… I just got Auto-PJ’d.
(be careful when someone amends an answer though… amending an answer right after you file it can revive the PJ challenge though and defeat waiver!)
auto personal jurisdiction - consent
- outright saying they consent
- agreeing to a forum selection clause
- They can even consent to litigate in a state by appointing an in-state agent to specially accept process in that particular state!
- by driving on the state’s highways and roads
Every state has one of these things called a non-resident motorist act which basically says “if you drive on our highways or roads and do some crazy shit… we will bring you here to litigate and answer for your crimes”
pennoyer to shoe pipeline
Pennoyer was all about “if you live here, drive here, or show up here for vacation… we got your ass”
International Shoe shows up 75 years later and is like “the world is changing and expanding. ChatGPT-5 is about to wipe us off the face of the fucking earth. We need more ways to gain personal jurisdiction in our interconnected world”
Basically, we needed to capture out-of-state people that were messing with states from far away or leaving the state after they messed with it.
So we expanded the four traditional bases and added the most powerful basis of them all:
MINIMUM CONTACTS
minimum contacts personal jurisdiction
essentially, if you fuck around in a state, you will find out in that same state.
The idea was simple yet wildly profound: if a defendant engages in voluntary activities with a state, they should submit to personal jurisdiction there if the claim arose from those voluntary activities.
Basically, you pay to play.
If you try to make money in the state, or use the roads there, or market your product or sign a contract there… you have purposefully availed yourself of the benefits of doing business in that state… and if you injure someone based on those activities, you’re coming back to that state to answer for it.
what are / are not minimum contacts?
Whenever a defendant reaches out to a forum voluntarily and causes an effect there (like the life insurance company did to Goatina in Illinois 47 years ago), it should be foreseeable to them that they could be brought into court there.
foreseeability that goods simply could end up somewhere is not enough to be sued there, we need target customers in that particular state.
miscellaneous contacts are NOT minimum contacts.
single isolated contacts are fine, as long as they are RELATED to the claim.
stream of commerce theory minimum contacts PJ
requires placing the product into the stream + other purposeful availment activity
+ factor - manufacturing center, servicing center in the forum state
+ factor - advertising in the forum state
placing the product into the stream = not enough.
what about passive websites for PJ?
Some websites are passive… they are merely informational and don’t directly target consumers of a certain state.
So simply having a passive, informational website is not enough for personal jurisdiction and purposeful availment
what about interactive websites for PJ?
But if the website is interactive and directly targeting citizens of a forum state - that is different.
Interactive websites that target and advertise to certain forums will establish the basis for minimum contacts for personal jurisdiction purposes
no minimum contacts =
no jurisdiction
minimum contacts BUT the contacts are not related to the claim (miscellaneous contracts are not minimum contacts) =
no jurisdiction
minimum contacts and contacts related to the claim (even a single isolated related contract) or driving on the road =
personal jurisdiction is proper
substantial and continuous corporation contact (amazon) =
general jurisdiction over all claims regardless if they are related to the contacts
traditional bases: domicile, served with process, waiver, and consent =
general jurisdiction over all claims, regardless of whether they are related to the contracts
what can a lawsuit not offend?
the traditional notions of fair play and substantial justice
three factors to determine if the lawsuit offends traditional notions of fair play and substantial justice
- convenience - An inconvenient forum on its own is not a basis for ‘unfairness’ unless it is SO insanely inconvenient and difficult for the defendant to litigate in that they are put at an extreme disadvantage
- the state’s interest in protecting its citizens (from out of state companies, scammers, etc)
- the plaintiff’s interest in having the case litigated in the forum’
constitutional analysis of PJ
- minimum contacts
- the claim arises from those contacts
- the claim does not offend traditional notions of fair play and substantial justice
statutory analysis of PJ
To establish out-of-state personal jurisdiction on a defendant who is not physically present in the forum we need both our three part constitutional analysis above… and we also need a: LONG ARM STATUTE
long arm statute explained
We can’t deprive people of life, liberty or property without due process.
14th amendment doesn’t define what types of out of state defendants a court could have jurisdiction over. the states define it themselves thru long arm statutes.
okay anybody who commits a tort here, or does business with our citizens… will be subject to jurisdiction here!”
what two bases do we need for personal jurisdiction over out of state defendants?
statutory (long arm)
constitutional (minimum contacts + fair)
what is servicing process
Serving process just means that you are personally delivering the defendant a summons (a formal notice of a lawsuit and the time required for a response) and a copy of the complaint on them.
there are two types of people who can serve process
- service by a disinterested adult who is at least 18
- process can be delivered by a marshal or someone specially appointed by the court.
if you fail to serve process?
you have to show good cause on why you didn’t serve it.
the court will look at:
1. the plaintiffs reasonable efforts to actually try and serve the defendant AND
2. the prejudice to the defendant from the delay in service
how do we actually serve process?
ANY method permitted by either (1) the Federal Rules of Civil Procedure, (2) the law of the state in which THAT federal court sits, or (3) the law of the state in which process is actually served. Each court allows different methods.
a way to serve process: personal service
Just walking up to the defendant and personally handing them a copy of the summons and complaint. The easiest way to do it.
what happens if the process server actually locates the defendant… but the defendant REFUSES process?
Personal service is still proper in this situation if the documents are left at the location, whether the person takes them or not
serving someone on a plane?
Personal service can happen anywhere in the forum, even if someone is just flying over it momentarily.
the only way to avoid personal service
is if you are in the state as a witness or a party in another case or you got frauded into coming there. We talked about this earlier.
substituted service
You CAN leave process with another responsible individual IF two factors are met:
- It is at the defendant’s dwelling OR usual abode (their HOME, their apartment, an AirBnB or motel they are renting by the month - this is ALL fine)
- the plaintiff must serve someone of suitable age and discretion who resides there (not NECESSARILY a relative, just anyone who resides there who is old enough)
Goat-Note: You cannot give process to a mentally disabled person at the home if their condition is apparent from sight.
Goat-Note 2: Minors or incompetents in general must only be served according to the state law rules for serving a summons for minors or incompetents (each state will have their own specific rules for this).
service on the defendant’s agent
You can simply deliver service to their registered agent (usually places like a corporation or a hospital will have them in particular states) or sometimes an agent is designated by law (like we talked about with the non-resident motorist act where the law says if you get in an accident on the highway the Secretary of State is automatically appointed as your process server)
service on a corporation
a plaintiff must serve either an officer, general agent, manager, or any other authorized agent for the corporation.
Basically, you have to serve someone with an important job in the corporation.
constructive service
This is used as a last resort if every single other method fails. You have to get permission from the court for this. But basically, you can either use the newspaper or social media (like Facebook or instagram) if the defendant has an active account
waiver of service process
This is when you mail service of process to the defendant with prepaid postage through first class mail and you ask them “do I actually have to serve your stupid ass in person? Can’t you just accept service of process please?”
If they accept the waiver, the defendant waives service but NOTHING ELSE (they do NOT waive a personal jurisdiction argument)
Anyway, if the person doesn’t waive service… the plaintiff actually has to serve them and then then the defendant will be forced to pay for this service.
if THE PERSON DOESN’T RESPOND TO YOUR WAIVER REQUEST… YOU HAVE TO GET YOUR LAZY ASS UP AND SERVE THEM
what about service outside of the US on foreign defendants?
any internationally agreed upon method is okay.
Even service by e-mail to a completely uncooperative foreign defendant is okay as well (if other methods have failed)
If defendant does NOT receive service, but they were served properly
the judgment in the case will still be valid.
Any judgment made WITHOUT proper service, however, is
VOID… even if the defendant RECEIVED the service and knew of the lawsuit… so long as service was improper, the judgment is void.
bulge rule
If I sue a defendant… and that defendant says “hey… if I owe you money, this third party owes me money” and then impleads a third party into the lawsuit to pay them… the defendant can bring that third party into the lawsuit and serve process on them if they are outside the state but within 100 miles of the courthouse.
venue
Venue tells us actually WHICH courthouse we can get into (i.e. the Northern District of California). Each state has multiple districts just based on the geography of where the courthouse is.
venue = where the defendants live
venue is proper in any district where all the defendants reside (if they all live in the same district)
But what if… what if… every single defendant lives in a DIFFERENT district in the state?!?
If all the defendants reside in different districts in the SAME state, venue is proper where ANY defendant resides (so in any of these three districts, venue would be proper)
venue = substantial part of the events
where a substantial part of the events or omissions in the claim occurred.
They won’t JUST look at the triggering event, they’re looking at the whole panorama. The whole sequence of events. And Judge Learned Hand will then add them up with a calculator to see where a substantial part of the events occurred.
two best venue options and the alterntive
- where the defendants live
- substantial part of the events
alternative - Any judicial district where any defendant is subject to personal jurisdiction and has minimum contacts.
venue = fallback option = Any judicial district where any defendant is subject to personal jurisdiction and has minimum contacts.
residence for venue purposes is very simple when it comes to citizens: it is domicile. It is the same test when determining citizenship for diversity purposes.
Corporations have a different residence for venue purposes (it’s called RESIDENCE when it comes to venue, not domicile… let’s get the language right).
It is not their place of incorporation or principal place of business. A corporation “resides” for venue purposes in ALL districts where that corporation is subject to personal jurisdiction.
venue = dealing with land
Anything related to ownership or possession of land must be filed in the district where the land itself is located.
transfer of venue
Transfer is all about moving the case from one federal district court to another federal district court for convenience purposes
The correct answer choice on the MBE for transfer usually actually says the word convenience so keep your head on a swivel on test day.
Transfer can be initiated by either the plaintiff or the defendant (although it’s almost always the defendant… because why the fuck would a plaintiff try to transfer it if they filed it there)
A case can ONLY be transferred to another venue where that case COULD HAVE ORIGINALLY BEEN FILED (i.e. a venue with proper personal jurisdiction over the defendants)
If the original forum was proper… you are using venue to say “hey… we think the convenience of the parties, the convenience of the witnesses, and the interests of justice require that this case should be moved to a better district court.”
There has to be a VERY clear balance in favor of the new court. We can’t just shift the inconvenience from the defendant to plaintiff.
transfer of venue choice of law
the court that you transfer the case to applies the choice of law rules of the original forum
Picture this: a case filed in diversity. But the plaintiff files it in a jurisdiction with a long ass statute of limitation. Then it gets transferred out of convenience to the witnesses to a jurisdiction that has a way shorter statute of limitations that would not have allowed the case to be filed originally there.
Problem? You wish.
The original forums law applies in a transfer situation. We still go with the long ass statute of limitations.
transfer of venue choice of law: if the original forum is improper
If the original forum is improper the court either dismisses the case or transfers it to a proper jurisdiction.
I am assuming transfers to proper jurisdiction and uses that proper jurisdictions choice of law?
forum selection clauses
parties agree to litigate in a certain venue.
If someone files in the wrong forum that isn’t specified in the forum selection clause… the proper remedy is transfer (not dismissal). That’s all you need to know about forum selection clauses - (1) they are allowed, and (2) if someone disobeys them, the court will transfer the case to the location listed in the forum selection clause.
forum non conveniens
this is a doctrine which allows you to transfer case outside of the federal system i.e. from a federal court to a foreign court or from a federal court to a state court system because
(1) the new forum is more convenient for the witnesses,
(2) the new forum is closer to the evidence,
(3) defendant has an undue hardship (maybe the defendant is from a foreign country), and
(4) the new forum is available and adequate.
three questions we must answer for any Erie analysis
1: federal or state law? i.e. is it substantive or procedural?
2: who wins: FRCP vs. Little Ass State Procedural rule?
3: which states laws are we talking about here
erie analysis: question 1 - federal or state law
when a lawsuit is based on a question of federal law it is easy to determine which law the courts use: federal law!
diversity cases on the other hand…. they use federal law for procedural issues and state law in which the states sits for substantive issues.
erie analysis: question 1 - federal or state law -
which state court rulings will they use?
they will begin with the state supreme court cases and if the state supreme court doesn’t have a ruling on the issue…
they will look to the trend in the appellate court decisions and the trial court decisions to try and predict how the state supreme court would interpret the issue.
if no state court, big or small, has ruled on the issue, they turn towards the restatements and secondary sources of law.
erie analysis: question 1 - federal or state law -what issues are procedural?
Procedural issues tell us how the case should flow through the court system,
the proper process for filing motions and service, and how to run the trial.
PROCEDURAL ISSUES: pleadings, discovery, service of process, sanctions, joinder, appeal, automatic stays on judgments, the order of how the trial goes, enforcement of forum selection clauses, and judge and jury relations.
FRCP 62
imposes a 30-day ‘hold’ on money awards in federal court. This gives a party a chance to challenge the award for various reasons before it is disbursed.
This doesn’t affect a party’s right to a money judgment, it affects the process of how they actually get the judgment itself. So it is procedural.
erie analysis: question 1 - federal or state law -
what laws are substantive?
The substantive rules are issues that could affect the parties ability to get money.
They are like the classes and grades! This is the best way to think about them. Any law that could change the outcome of the litigation is substantive!
SUBSTANTIVE ISSUES: elements of a claim, defenses, standard of care, and remedies.
when would a court use federal law for a substantive issue?
uniquely federal interest at stake.
Think about a punitive damages situation for an accidental U.S. Army Drone crashes during training exercises. Let’s say a federal law doesn’t allow punitive damages for this, and a state law does allow punitive damages. The court would go with the federal law here.
Maintaining the U.S. Military is important and a uniquely important federal interest… so in these very rare circumstances the state law gets overruled even when the issue is substantive. Just a little easter egg to remember my G’s.
statute of limitations … substantive or procedural?
statute of limitations are outcome derivative and therefore state substantive law must be used.
They literally determine whether you can even bring the lawsuit or not. It is directly linked to a parties rights and ability to enforce their claim.
This isn’t like “discovery deadlines” which are just about some stupid dates we have to file our briefs by. This is substantive as fuck… it affects the outcome, your grades in Goat school, your money.
Erie’s drunk uncle, Michael Klaxon
after Erie established that federal diversity courts had to apply state law, a big question arose… which state’s law?
Klaxon says that choice of law is substantive, and that we should apply whatever choice of law rules the state we are in would use too.
So any time we are in diversity in a federal court, and there is a choice-of-law question… we need to look to see what law the state we are sitting in would select for
the whole idea of erie
we want federal courts to reach the same result as state courts
klaxon in action
If Goat sues Kevin Tipcorn in diversity in Illinois federal court for a crash that took place in California… and Illinois state law uses the negligence laws of the state where the accident took place, then Illinois federal court should use California negligence law.
So any time we are in diversity in a federal court, and there is a choice-of-law question… we need to look to see what law the state we are sitting in would select for
right / wrong answer for erie / klaxon stuff
The right answer choice will always talk about the state the court is in selecting for another state’s law (and sometimes they select for their own law too!)
THE IMPORTANT PART IS THAT WE NEED TO LOOK FOR WHAT THEY SELECT FOR
The wrong answer choice in this problem will just say “Use Illinois law”
thought process for choice of law problems
step 1: we are in federal court in state B
step 2: okay i’m choosing whatever choice of law state B SELECTS FOR
when a federal procedural law (like a rule from the FRCP or FRE) comes into conflict with a state procedural issue
a valid and on-point federal rule always wins.
And there has never been a single rule on the FRCP that was ever found to not be valid… so when the FRCP goes up against a stupid ass state procedural rule… the FRCP always fucking wins. Write this down.
Semtek - If Klaxon is the drunk hipster uncle of Erie, Semtek is the insane grandpa who kind of has mild Alzheimers and wasn’t really a veteran but went to training camp in North Carolina for a year and still wears the uniform around the house
if a case gets precluded in federal court #1, and the party wants to refile it in state court #2… we simply have to look to the law of the rendering court (federal court #1) to decide if that is allowed.
Not allowed in Fed court, won’t be allowed in State court.
rule 11
if you present a pleading to the court, you must sign it.
all complaints, answers, and motions are signed.
they are signed with the attorney’s office address, their e-mail, and their phone number so they can easily be tracked down if they lie.
do discovery demands and disclosures to the other side need to be signed and certified under rule 11?
no, because you aren’t talking to the bouncer at club fed (the court)
under rule 11, besides signing the representations to the court, they also must certify three things on each of them.
1. that the filing is not for an improper purpose (delaying, harassiing, trying to waste the other sides money)
2. no bad faith legal issues (arguments presented all have to be warranted by the existing law or good faith change or extension in law)
answer: the fact pattern will have a lawyer filing an issue of first impression and arguing for some new shit and the correct answer choice will say “this is allowed as the lawyer is arguing for a non-frivolous good faith extension of the law”
3. the factual contentions all have evidentiary support or likely will after more investigation (you have to research shit before filing stuff)
Discovery comes after pleadings. So you don’t have to know for sure that every allegation you put in a pleading is true. You just have to have some evidentiary support that it could be true. It can’t just be a totally baseless crackhead claim.
continuing certification under rule 11
so every single time that particular document or claim comes up, you are re-certifying it again even if you haven’t actually wrote the stupid certification on the bottom of the filing itself.
If you throw something out that may have evidentiary support, then after discovery you find out it doesn’t… you can’t advocate that position at trial.
if any of your filings are found to be frivolous
the other side can move on you for sanctions.
Remember though, the court can also move on their own against you for sanctions (called sua sponte).
They will issue an order to show cause on why you should not be sanctioned.
The court must first have a hearing though before they hit you with sanctions though.
safe harbor
Courts don’t want to waste a ton of time dealing with sanctions. So there is a little “safe harbor” provision in Rule 11.
It says that once an opposing party identifies that you are doing some weird shit or making frivolous filings, they send you a draft motion for sanctions (alongside a memorandum pointing out where you fucked up).
This motion is served on the opposing party… NOT on the court itself. It is basically saying “withdraw this filing or you’re fucked”
And how many days do you have to clean up your little motion before the request for sanctions gets sent to Daddy Judge? 21 days to fix it.
If you correct your fuck up and withdraw your pleading, you sail into the safe harbor.
If you don’t correct the filing, then the other side can serve it on the court after 21 days has passed… and a hearing will go down.
J24 Trick: Even if it is a totally insane and frivolous filing… but you correct it within 21 days… there will not be any sanctions on you (unless the judge gets mad and raises sanctions himself)
J24 Super Trick: Oral notice from the opposing party is insufficient to put the other party on the 21 day safe harbor notice. You have to tell them in writing.
Goat-Note: There is no safe-harbor provision with the judge or court… they can fuck you up at any time and give you monetary sanctions.
who exactly can rule 11 sanctions be imposed on?
1. attorneys (legal theories and misrepresentations of law)
2. law firms
3. parties (especially if they do crazy shit like mislead their attorneys)
sanctions for legal theories and misrepresentations of law
if the lawyer puts some crazy ass caselaw in a brief the client can’t get in trouble for that because they don’t have the final say in what caselaw is put into the brief.
sanctions for signing false facts and deliberately lying to their lawyer about facts
client gets hit with sanction
lawyers duty to investigate (3 situations for sanctions)
if the lawyer doesn’t investigate certain facts and the client IS NOT AWARE they are false… ONLY THE LAWYER IS getting in trouble.
if the lawyer doesn’t investigate certain facts AND the client IS AWARE the facts given are false… they can BOTH BE SANCTIONED.
If the client and the lawyer are BOTH being evasive about the facts as part of some type of half-baked litigation strategy that they are working on together… the sanctions can be given to both of them
the extent a lawyer must go to investigate
reasonable prefiling inquiry
can a pro-se defendant (someone representing themselves) be sanctioned?
yes
law firm sanctions
if the lawyer gets hit with sanctions, the law firm is held jointly responsible.
who decides who is in and who is out for plaintiffs / defendants?
the plaintiff.
they not only decide who they will be suing, but also what claims they will bring against the defendant and what parties will join them as co-plaintiff.
joinder means
joining parties and claims
rule 18
A party bringing a claim (such as a plaintiff suing a defendant)… or a defendant bringing a counterclaim or impleader… or a plaintiff or defendant bringing a cross-claim against a fellow plaintiff or defendant… can join absolutely any fucking claims they want against an opposing party - SO LONG AS THOSE CLAIMS HAVE INDEPENDENT BASES OF SUBJECT MATTER JURISDICTION
aka - needs diversity jurisdiction, federal questoin, or supplemental.
rule 20 - permissive joinder
If two parties decide to join together, they can do so provided:
- Their claims against the defendant arise from the same underlying event;
AND
- Their claims involve litigation of at LEAST one common question of either fact OR law.
required party or not factors
- prevent everyone from getting paid
- prejudice the absentee’s interests
- result in multiple or inconsistent obligations.
example of parties that are always necessary
- joint property owners
- beneficiaries in a trust dispute
- executor of an estate
example of who are NOT necessary parties
joint tortfeasors
They’re not necessary because one of the main points of even having necessary parties in the first place is because the plaintiff can’t be fully paid without the absent party being there.
when a party is necessary but joinder is not feasible due to
1. diversity being destroyed,
2. no pj over the defendant, OR
3. the defednant having a valid objection to venue…
the court has to make a big decision on whether to drop the case or carry on without the party
indispensable party
the super necessary party that will cause us to drop the whole case if we can’t join them.
3 balance question
- what is the real likelihood of harm occurring to anybody if we proceed with the case WITHOUT the absent necessary party?
- is there a different forum where everybody can be joined (including state court)?
- can the court shape the order in the case to avoid harm if the absent necessary party sin’t joined?
counterclaims
an offensive claim that is filed against an opposing party WITH THE RESPONSIVE PLEADING
compulsory counterclaim
all logically related counterclaims must be brought or you will lose them forever. related to the same transaction or occurrence.
permissive counterclaim
defendants can raise permissive counterclaims which are unrelated claims BUT SUBJECT MATTER JURISDICTION MUST STILL BE SATISFIED
NO SUPPLEMENTAL JX OVER PERMISSIVE COUNTERCLAIM
crossclaim
a crossclaim is not asserted to defend your battleship against an opposing party, it’s a first strike against a co-party
two requirements
1. must arise from the same transaction and occurrence
2. cross claim must ask for ACTUAL RELIEF, not just blame the other side for what the plaintiff is accusing the defendant of.
contribution
saying someone owes you some of the money you owe the plaintiff
indemnification
saying someone owes you all the money you owe to the plaintiff
cross claim notes
- they are never compulsory
- they are always within supplemental jxd
rule 14
allows the defendant to bring in more defendats to say “hey if i’m liable to this plaintiff.. you owe me some fucking money”
difference between impleader and cross claim
impleader - brings in a party who was not there originally and sues them for money, a
crossclaim - is brought against an existing party on the same side of the lawsuit against you and sues them for money.
when does impleader come up on the bar exam?
- The first situation is when a retailer (like a microwave store) sells a defective microwave. It then malfunctions and causes an injury. Then the retailer comes after the manufacturer of the microwave through impleader.
- The second situation is when an insurance company is like “yea. we’ll pay for you if you get in a car accident” … then the person gets in a car accident they become a defendant in a lawsuit… then the defendant IMPLEADS in the insurance company to pay them, not the plaintiff.
impleader timeline
defendant has only 14 days after serving their answer to implead.
after that, they need the court’s permission.
who gets the benefit of the bulge rule?
impleaded parties and necessary parties
interplead
When a neutral party (called a stakeholder) has either money or property that is part of a potential dispute between multiple other parties that have conflicting claims… the neutral party can toss the ball into the air into the court system and BRING THEM ALL TOGETHER IN A WAR.
A stakeholder who has money or property that other people want will use interpleader to bring all of these angry goofballs into a SINGLE lawsuit so he doesn’t get pulled 57 different ways with 10 different lawsuits about his prized golden goose that he has which they are all fighting over
two types of interpleader
- rule based interpleader - $75,000 and full diversity
- statutory interpleader - only requires $500 in controversy and minimal diversity (diversity between any of the two defendants)
rule 24 - intervention
where the absent party actually CAN file a motion… basically saying they are necessary
two types - permissive intervention and intervention of right
intervention of right
So intervention as of right happens on the bar exam when two plaintiffs want the same end result… but for way different reasons.
three elements
1. The absent party claims an interest relating to the property or transaction that is the subject of the action,”
- the absent party “is so situated that disposition of the action may as a practical matter impair or impede the absent party’s ability to protect its interest,”
- existing parties do not “adequately represent the movant’s interest.”
permissive intervention
if an existing party and an absent party want the same result for the same reason
the court may permit intervention when the nonparty’s claim or defense shares a common question of fact or law with the main action
certifying a class (a-b 4-3)
the class has to have four characteristics under FRCP 23(a) to prove to the judge that the class is structured properly
then it has to fall into one of the three types of class actions under FRCP 23(b) to make sure a class action is superior to individual litigation
four characteristics for a class to prove to a judge that the class is structured properly
- numerosity- class has to be big af
- typicality - class representatives have claims which are similar to those of the class at large.
- commonality - questions of law or fact common to the class
- adequate - class representatives and lawyers must show that they will adequately protect the class.
overall what must we prove to a judge for a class action?
we have to show that a class is structured properly and that a class action is actually better than simply allowing all these suits to proceed individually.
three types of class actions the court will accept
- FRCP 23(b)(1) - anti-prejudice class action allowed if there will be prejudice to other members of the class should the lawsuits proceed individually. these are all about prejudice and they are allowed when limited amounts of money are at stake.
- FRCP 23(b)(2) - these will be allowed when the whole class is seeking an injunction against an evil entity that is basically doing the same crazy shit to everyone invovled. this will NOT work if everyone is also seeking individualized money damages.
most likely to be tested:
3. FRCP 23(b)(3) - common question and damages
allowed when a bunch of people are seeking money and all their suits revolve around a common claim. it is concerned with a common question of law or fact predominating and individual money claims
common question class actions require that the class representatives notify all members telling them they can
(1) opt out
(2) they will be bound if they don’t opt out and
(3) they can enter a separate appearance through counsel.
FRCP 23(b)(3) class actions
- common question
- opt out notification must be sent
can you appeal decisions by the court that deny class certification?
yes you just have to seek review within 14 days.
