Civil Procedure Flashcards
Discovery - In Anticipation of Litigation
In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
Sanctions for Electronic Sources
A party may be subject to sanctions for failing to take reasonable steps to preserve evidence that should have been preserved in the anticipation or conduct of litigation. Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery. In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.
When retrieval of the information is possible, even if typically considered inaccessible due to the cost of retrieval, a court may order it and assign the costs to the party who destroyed the evidence; no further sanctions may be imposed. If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order alternate sanctions against the wrongful party, limited to the court’s discretion of those necessary to cure any prejudice to the other party.
If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s use in litigation, then the available sanctions include (i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party; (ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or (iii) an entry of a default judgment against the party.
Venue is proper in…
Venue is proper in a judicial district in which (i) any defendant resides, if all defendants reside in the same state in which the district is located, (ii) a substantial part of the events or omissions on which the claim is based occurred, or (iii) a substantial part of the property that is the subject of the action is located.
Venue Transfer - Forum Selection Clause
For the convenience of the parties and in the interests of justice, a district court in which venue is proper may transfer any civil action to any other district or division where it might have been brought. Moreover, when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. Furthermore, the Supreme Court has held that a forum selection clause should be given “controlling weight in all but the most exceptional cases.”
Venue Transfer - Application of Law
Generally, if the venue of an action is transferred when the original venue is proper (as discussed above), then the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law. However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the conflict-of-law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.
Claim Preclusion
The doctrine of claim preclusion (i.e., res judicata) provides that a final judgment on the merits of an action precludes the parties from relitigating an identical claim in a subsequent action. For claim preclusion to apply, the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action. Because application of claim preclusion is limited to the parties (or their privies), a similar action by a different party would not be precluded.
Issue Preclusion/Collateral Estoppel
The doctrine of issue preclusion (i.e., collateral estoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) was a party to the original action (i.e., offensive collateral estoppel). Other elements necessary for issue preclusion to apply are that (i) the issue sought to be precluded must be the same as that involved in the prior action; (ii) the issue must have been actually litigated in the prior action; (iii) the issue must have been determined by a valid and binding final judgment; and (iv) the determination of the issue must have been essential to the prior judgment.
Supplemental Jurisdiction
When the district court’s subject matter jurisdiction for a claim is based on the existence of a federal question, additional claims against the same party can be heard by the court through the exercise of supplemental jurisdiction if the common-nucleus-of-operative-fact test is met. Claims arise out of the same nucleus of operative fact if they are part of the same case or controversy and should be tried together. However, a district court has discretion to decline to exercise supplemental jurisdiction (i) over claims that raise new or complex state law issues or that substantially predominate over claims within original federal jurisdiction; (ii) when the claims within the court’s original jurisdiction are dismissed; or (iii) if there are other compelling reasons for declining jurisdiction in exceptional circumstances.
Long-Arm Statute Personal Jurisdiction
A federal district court will look to the jurisdictional statutes of the state where it is located to determine whether it can exercise personal jurisdiction over the parties. State long-arm statutes provide a means of exercising jurisdiction over nonresident defendants, provided it complies with due process. In general, due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice. For in personam jurisdiction, a defendant’s contacts with a forum state must be purposeful and substantial, such that the defendant should reasonably anticipate being taken to court there. The scope of contacts necessary depends on the relationship that the cause of action has with the forum state. Specific personal jurisdiction may be warranted even if the contact is the defendant’s only contact with the forum state when a cause of action arises out of or closely relates to that conduct. When a cause of action does not arise out of or relate to the defendant’s contacts with the forum, general personal jurisdiction is warranted only when the defendant is “at home” in the forum state.
Legal Representative Domicile
In general, an individual who is a named party in a suit is a citizen of the state in which the individual is domiciled—i.e., the state in which the individual is present and intends to reside for an indefinite period. However, a legal representative of a decedent’s estate will be deemed a citizen of the same state as the decedent—not the state where the legal representative is domiciled.
Class Action Diversity
Diversity in a class action brought pursuant to Rule 23 will generally be determined by the citizenship of the named members of the class bringing the lawsuit. However, for class actions in which the amount at issue totals more than $5,000,000, diversity will be met if any member of the plaintiff class is diverse with any defendant.
Class Actions Rule 23
When an action is commenced in U.S. district court, the court must determine the substantive law and rules of procedure that will govern the action. In a diversity action, the district court is required to apply state substantive law, if there is no federal law on point. With regard to procedure in a diversity action, if a procedural issue is addressed by a valid federal law, such as a statute, then the federal law will be applied, even if a state rule or statute is in conflict.
Class actions can be maintained in federal court, despite a state law barring class actions to enforce statutory damages claims, if the action is authorized by Rule 23. Rule 23(a) establishes four requirements for representative members of a class to sue or be sued on behalf of all members of the class: (i) the class must be so numerous that joinder of all members is impracticable (numerosity); (ii) there must be questions of law or fact that are common to the class (commonality); (iii) the claims or defenses of the representatives must be typical of the class (typicality); and (iv) the representatives must fairly and adequately protect the interests of the class (adequacy).
Service of Process on Corporation
Pursuant to the Federal Rules of Civil Procedure (FRCP), service on a U.S. corporation may be effected either by delivering the summons and complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process, or by following state law in the state where the district court is located or where service is made. If a procedural issue in a diversity action is addressed by a valid federal law, then the federal law will be applied, even if a state rule or statute is in conflict.
Impleader
Third-party claims (impleader) are claims made by a defending party against a nonparty for all or part of the defending party’s liability on an original claim. The impleaded claim must relate to the original claim against the defending party. In judging whether the claims are related, the test is whether they arise out of a “common nucleus of operative fact” such that all claims should be tried together in a single judicial proceeding.
Rule 11 Sanctions
Rule 11 establishes the standards that attorneys and individual parties must meet when filing pleadings, motions, or other papers, and provides sanctions for violations of the rule. Under Rule 11(a), every pleading, written motion, and other paper filed with the court must be signed by at least one attorney of record, or by a party personally if unrepresented. Under Rule 11(b), by presenting to the court a pleading, written motion, or other paper, the signing attorney or unrepresented party certifies that to the best of her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances (i) the paper is not being presented for any improper purpose; (ii) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (iii) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (iv) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
A motion for sanctions must be made separately from any other motion and must describe the specific conduct alleged to violate Rule 11. The motion must first be served on the opposing party under Rule 5. The opposing party must then be given 21 days to withdraw or correct the challenged pleading. If this 21-day “safe harbor” period passes, and the opposing party fails to correct the pleading, the party seeking sanctions may file the motion with the court.
Under certain circumstances, after notice and a reasonable opportunity to respond, the court may, in its discretion, impose sanctions on attorneys, law firms, and parties for violations of Rule 11. These sanctions are limited to what will deter the misconduct in the future.
Sanctions may include nonmonetary directives or an order to pay a penalty into court. If sanctions are imposed on motion and warranted for effective deterrence, an order directing payment to the movant for reasonable attorney’s fees and other expenses directly resulting from the violation may be appropriate.
Affirmative Defense
Necessary Party
Indispensable Party
Interlocutory Appeal
Collateral Order Doctrine
