Civil Procedure Flashcards
Personal Jurisdiction - Two Requirements
Statutory and Constitutional
Personal Jurisdiction - Waiver
Can be waived
Personal Jurisdiction - Statutory Requirements
Presence (served), domiciled, consent, or long-arm statute
Personal Jurisdiction - Constitutional Requirements
Minimum contacts, notions of fair play/substantial justice
Personal Jurisdiction - Constitutional Requirements - Specific Jurisdiction
Contacts, relatedness, and fairness
Personal Jurisdiction - Constitutional Requirements - General Jurisdiction
Contacts + D is at home, registered for business, or served
Businesses: incorporated/principal place of business
Personal Jurisdiction - Constitutional Requirements - Contacts
Minimum contacts
Purposeful availment: voluntary act/targeting/causing effect
Foreseeability: Foreseeable that D could be sued
Personal Jurisdiction - Constitutional Requirements - Relatedness
Claim arises from/relates to D’s contact w/ forum
Personal Jurisdiction - Constitutional Requirements - Fairness
Burden on D, state interest, P interest
Notice Requirement
D entitled to notice of suit (reasonably calculated to apprise party of action)
Notice Requirement - Elements & Timing
Summons + copy of complaint within 90 days of complaint filed
Notice Requirement - Ways of Service
Process server: 18+ years old, not party to action
Ways of Service: personal, substitute, agent, or state methods
Substituted service: at D’s abode to person of age who resides there
Business: Officer/agent or state method
Notice Requirement - Waiver of Service
P mails, D execute within 30 days, effective when P files in court
If D doesn’t waive w/o good cause > pays cost of service
Subject Matter Jurisdiction - Waiver
Cannot be waived
Subject Matter Jurisdiction - States Cant Hear
Patents, bankruptcy, securities, antitrust
Subject Matter Jurisdiction - Two Types
Diversity Jurisdiction: citizenship or alienage + > $75,000
Federal question: Under federal law
Subject Matter Jurisdiction - Diversity - Persons
All Ps be different than all Ds when case is filed
Citizenship: domicile (presence + intent as home)
Corporations: All incorporated + principal place of business
Partnership: citizenship of all members
Class actions: Citizenship of named representatives
No diversity for: divorce, alimony, custody, probate
Subject Matter Jurisdiction - Diversity - Amount
Amount in controversy > single P can aggregate against single D
Total value of joint claims, number of parties irrelevant
Subject Matter Jurisdiction - Federal Question
Well-pleaded complaint: P’s claim must “arise under” federal law
Subject Matter Jurisdiction - Removal
D can remove to fed court if could have been filed in fed court
Subject Matter Jurisdiction - Removal - Timing & Location
D files notice w/ grounds within 30 days of service/removal possibility
All Ds must join in the removal; Ps may not remove
D can remove to fed court embracing state for diversity or fed question
Subject Matter Jurisdiction - Removal - Diversity Exception
If based on diversity: no removal if any D is a citizen or 1 yr+ since filing
Subject Matter Jurisdiction - Removal - Improper Removal
Remand to state court
If lack of SMJ > move any time
If other reasons > move within 30 days of notice of removal
Subject Matter Jurisdiction - Supplemental Jurisdiction
Gets claims into federal case
Common Nucleus Test: Common operative facts; Same transaction/occurrence
Subject Matter Jurisdiction - Supplemental Jurisdiction - Limitation for Diversity Cases
Claims by P generally cannot invoke supplemental jurisdiction UNLESS multiple Ps & one claim isn’t over $75k
Erie Doctrine
Federal law applies, then, if issue is substantive, state law
Always substantive: conflict rules, elements of claim/defense, statute of limitation, rules for tolling SoL, standard for new trial bc excessive damages
Judge looks at outcome determinative, balance of interests, forum shopping
Venue
Venue tells us where to initially file in fed court (which federal court)
Venue - Location
Where all Ds reside or substantial part of claim arose
Removed cases: fed district embracing state court where action filed
Transactional cases: manufacture, injure, contract entered/performed
D resides (business) > where subject to PJ
Venue - Transfer
One trial court to another in same system
Transferor: OG court; Transferee: New court
Transferee must be proper venue with PJ over D
Venue - Transfer from Proper Venue
Convenience or interest of justice
Diversity > transferee applies law of transferor
Venue - Transfer from Proper Venue - Forum Selection Clause
Federal law enforces FSCs if they’re not unreasonable
Only public interest factors are considered
Transfer to enforce FSC > transferee’s choice of law rules
Venue - Transfer from Improper Venue
Transfer for justice or dismiss
Transferee applies its own choice of law rules
Venue - Forum Non Conveniens
Hold case so P can sue in other court
When there is another court that is the center of gravity for the case, but court cant transfer bc it’s a different judicial system
Other court must be available and adequate
Pleadings - Must Contain
Grounds for SMJ, statement of claim, demand for relief
Must plead sufficient facts to support a plausible claim
Particularity or specificity for fraud/mistake
Pleadings - D’s Response
D must respond by motion or answer within 21 days (or 60 if service waived)
Pleadings - D’s Response - Defenses Waived
Defenses waived if not in first response: PJ, venue, process, service
Pleadings - D’s Response - Defenses Raised Later
Defenses which can be raised later:
before trial: failure to state claim, failure to join indispensable party;
any time: lack of SMJ
Pleadings - D’s Response - Denial of Motion
D must serve answer within 14 days
Pleadings - D’s Answer
Must respond to allegations + raise affirmative defenses
Pleadings - Amended Pleadings - P
P can amend once within 21 days of D’s response
Pleadings - Amended Pleadings - D
D can amend once within 21 days of serving answer
Can include waivable defenses or affirmative defenses
Pleadings - Amended Pleadings - After Time Limit
Party can seek leave of court to amend
Pleadings - Amended Pleadings - Relation Back
Amended pleading “relates back” if about same conduct, transaction, occurrence > avoids statute of limitation problem
Changing D: relates back if same conduct, transaction, occurrence, D had case knowledge, AND D knew they should have been named
Rule 11 - Application
Applies to all papers except discovery
Rule 11 - Effect
Atty signs > best knowledge after reasonable inquiry that: Paper is not improper, legal contentions are warranted/nonfrivolous, contentions have evidentiary support
Rule 11 - Sanctions
Sanctions: deter repeat of conduct (against party, lawyer, or firm)
Must first have opportunity to be heard
Party must serve motion to party before court (safe harbor of 21 days to fix)
Joinder
P can join any additional claim they have against adverse party, but must have SMJ
Claim Joinder - Multiple Ps or Ds
Same transaction or occurrence + one common question of fact or law
Claim Joinder - Plaintiff - Absentees
Absentee necessary if: court cant accord complete relief, absentee’s interest will be harmed, or absentee has interest which gives party to multiple obligations
Joint tortfeasors are never necessary
Joinder feasible if: PJ over absentee + federal SMJ over claim
If absentee can’t be joined: can it proceed? Alternative forum? Likelihood of harm? Can court shape relief to avoid harm?
Claim Joinder - Defendant
Compulsory counter claim > arises from same T/O > raised or waived
Permissive counter claims > not same T/O > not required to raise
MUST HAVE SMJ over counterclaim
Claim Joinder - Cross Claims
Claim against co-party, same T/O, not required to raise
Impleader
Third party claim (D bringing in new party) in 14 days of answer
Shifts liability D owes P (indemnity or contribution)
Claims are permissive, not required
D files third party complaint, have complaint formally served
PJ over impleaded party if served within 100 miles from court
Intervention
Absentee brings themselves into the case
Intervention of right if interest harmed (not repped by current parties)
Permissive intervention if common q of law or fact
Class Action - Requirements
Numerosity (too many people for joinder)
Common issue to all class members
Class rep’s claim is typical of claims
Rep will adequately/fairly rep class
Class Action - Types of Cases
Prejudice, injunctive/declaratory relief, or common question/damages
Class Action - Court Actions
Certify class, define class issues/defenses, appoint counsel
Must also send individual notice to class for common Q/damages
No right to opt out of a class action unless for common Q/damages
Class Action - Diversity of Citizenship Requirements
Only citizenship of rep, rep’s claim must exceed $75k
Class Action - Class Action Fairness Act
SMJ if 100+ members, any P diverse from any D, claims aggregated exceed 5 million
Discovery - Initial Disclosures
Party must give w/o being asked within 14 days of conference
Identify of people with discoverable info you may use as support
Documents and things that may be used for support
Computation of Relief & supporting documentation
Insurance coverage
Failure to disclose > can’t use unless justified or harmless
Discovery - Later Disclosures - Experts
Expert witnesses who may provide testimony at trial
Opinions, basis, facts used, qualifications, and EW’s payment
Party may take deposition of EW
Failure to disclose > can’t use unless justified or harmless
Discovery - Pre-Trial
No later than 30 days prior to trial
Identity of witnesses who will testify or have a deposition
Discovery - Discovery Requests can be made after
Rule 26 Conference
Discovery - Deposition
Live testimony under oath, always oral & recorded
Party need not be subpoenaed, non-parties served with subpoena
Not allowed: more than 10 depositions, same person twice, or over 7 hrs
Can be to impeach, any purpose if adverse party or deponent unavailable
Discovery - Interrogatories
Written qs answered under oath
Only ever sent to parties, maximum number of 25, answered in 30 days
Responding party can give requesting access to records instead
Discovery - Request to Produce
Asks a party to make available for review documents or things
Can also permit entry on property to inspect
Party must respond in writing in 30 days
Discovery - Medical Exam
Court order required
Party must show: health in controversy and good cause
Person undergoing can get copy of report
Discovery - Request for Admission
Request that someone admit certain matters
Must respond in 30 days or deemed admitted
Discovery - Scope
Anything relevant to a claim/defense + proportional to the needs of the case
Discovery - Privilege - Work Product
Work Product – Prepared in anticipation of litigation
May be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way
“Opinion work product” CANNOT be discovered
Discovery - Privilege - Inadvertent Disclosure
Notify promptly, party must return/destroy
Discovery - Court Enforcement - Protective Order
If annoyance, embarrassment, undue burden
Party must certify that she tried in good faith to resolve w/o court
Discovery - Court Enforcement - Partial Response
May be compelled
Party moves for order compelling, if violated > merit sanctions
Court may: establish facts as true, strikes pleadings, disallows evidence, dismiss case, enter default judgement
Discovery - Court Enforcement - No Response
Sanctions + costs
Temporary Restraining Order - Defined
Status quo until hearing on prelim injunction
Temporary Restraining Order - Requirements
Can be issued without notice to other party if: Applicant files (under oath) that will suffer irreparable harm if wait + lawyer certifies efforts to give oral or written notice + Must post bond to cover costs if restraint is wrongful
Must state terms + detail what D must do + why
Effective for no more than 14 days (can extend for another 14)
Preliminary Injunction - Defined
Status quo until trial
Preliminary Injunction - Defined
Burden on applicant to show: likely to suffer irreparable harm, likely to win on merits, balance of hardship in her favor, injunction in public interest
Must state terms + detail what D must do + why
Court must make findings of fact + conclusions of law
Can be appealed as of right
Voluntary Dismissal - Without Permission
P can withdraw before D’s answer or motion
Voluntary Dismissal - With Permission
P must make motion to court
First voluntary dismissal is without prejudice (only once)
Default Judgement - When
If D doesn’t respond in 21 days of service
Default Judgement - Default
Novation by clerk on docket sheet, cuts off D’s right to respond
Default Judgement - Made by
Made by clerk if D made no response, claim is for certain sum, P gives affidavit of sum owed, and D not minor/incompetent
Otherwise, hearing by judge and D gets notice
Default Judgement - Motion to Set Aside Default
Good cause + viable defense
Motion to Dismiss
Made before D has answered
Failure to State a Claim > if facts true, do they state plausible claim
If after D’s answer: motion for judgement on pleadings
Motion for Summary Judgement
No dispute on material fact so entitled to judgement as matter of law
Can move no later than 30 days post discovery
Views evidence in light most favorable to non moving party
Trial - Rule 26(f) Conference
21 days before scheduling order, meet and confer
Present to court a discovery plan within 14 days after conference
Trial - Pretrial Conference
Issues to be tried and evidence to be proffered
Trial - Jury Trial - For
Civil actions at law, not equity (injunctions)
Trial - Jury Trial - Demand
Jury demand must be in writing within 14 days after service of pleading
Trial - Jury Trial - Juror Selection
For Cause – unlimited number
Peremptory – three; must be race/gender neutral
Trial - Jury Trial - Number of Jurors
Minimum of 6, max of 12
Trial - Jury Trial - Jury Instructions
Court informs the parties of (1) what instructions it will give and (2) what proposed jury instructions it rejected
Party must be allowed to object on the record
Trial - Jury Trial - Verdicts
General > who wins + relief
Special verdict > specific written facts, not who wins
Can be impeached if jurors were bribed, etc.
Trial - Jury Trial - Entry of Judgement
If general verdict > clerk issues
If special verdict > judge approves if answers consistent
Trial - Jury Trial - Judgement as a Matter of Law
Reasonable people could not disagree on the result.
Can move before case submitted to jury, after opposing party heard
Judge grants & enters judgement instead of jury trial
Trial - Jury Trial - Renewed Judgement as a Matter of Law
Comes up after trial, entered for party that lost jury verdict
Evidence viewed in light most favorable to non-moving party
Made within 28 days of entry of judgement
Must have moved for JMOL during trial on same grounds
Trial - Jury Trial - Motion for New Trial
Can be granted on any (non-harmless) error that requires a do-over.
Motion within 28 days of judgement
Reasons: error in jury instructions, new evidence, misconduct, judgment against weight of evidence, inadequate/excessive damages
Trial - Jury Trial - Remittitur
Hardball w/ P: remit part of the damages award or go through a new trial
Trial - Jury Trial - Additur
Hardball w/ D: add damages or new trial; not allowed in fed court
Trial - Jury Trial - Motion for Relief from Judgement
Clerical error: any time
Mistake/neglect: reasonable time, <1 year
Fraud/misrep/misconduct: reasonable time, <1 year
New evidence: reasonable time, <1 year
Judgement void, like lack of SMJL: reasonable time, no maximum
Appellate Review - What is Reviewable
Party has a right to appeal if there is a final judgement (nothing left on merits)
Not final: denial of summary judgment, new trial granted
Appellate Review - Timing
Notice of appeal within 30 days after judgement which is appealed
Appellate Review - Interlocutory appeals - Injunctions
Granting, modifying, or refusing injunctions are reviewable as of right
Appellate Review - Interlocutory appeals - Interlocutory Appeals Act
Interlocutory Appeals Act: judge certifies it is controlling issue w/ substantial grounds for difference of opinion & appeals court agrees to hear
Appellate Review - Interlocutory appeals - Collateral Order
Collateral Order: Issue is distinct from merits, involves important legal questions, and essentially unreviewable if parties await judgement
Appellate Review - Interlocutory appeals - Class Actions
Class actions: Order granting or denying cert of class w/in 14 days
Appellate Review - Standard of Review - Question of Law
De novo (no deference given to trial judge)
Discretionary matters: affirm unless abused discretion
Appellate Review - Standard of Review - Question of Fact
Standard of “clearly erroneous”; deference to trial judge
Jury trial: affirm unless reasonable people couldn’t make that finding
Claim Preclusion: Res Judicata
Same claimant against same defendant
Case 1 ended with valid final judgement on merits (not on merits: jurisdiction, improper venue, indispensable party)
Case 1 and Case 2 assert same claim (T/O)
If claimant won earlier: merged; if D won earlier: barred
Issue Preclusion: Collateral Estoppel
Same issue actually litigated and determined in case 1 as case 2
Case 1 ended with valid final judgement on merits
Issue was essential to judgement in case 1
Can only be used against someone who was party to Case 1 or in privity (in privity: represented in that action)
Can be used by a party to case 1 or someone in privity
Nonmutual Issue Preclusion - Defensive
Someone who is not a party in case 1 tries to use issue preclusion in 2
Person is the D in case 2
Only allowed if the party you attempt to use it against had a full chance to litigate in the first case.
Nonmutual Issue Preclusion - Offensive
Someone who is not a party in case 1 tries to use issue preclusion in 2
Person is the P in case 2
Most states say no, but there is a trend towards yes.
Allowed if it is “fair,” using fairness factors: party to be bound had a full and fair opportunity to litigate, strong incentive to litigate first case, whether party could have joined case 1, and there have been no inconsistent findings on the issue.
