Civil Procedure Flashcards
Federal Question
Jurisdiction
Federal question jurisdiction exists when the claim arises under federal law. The federal question must be presented on the face of a well-pleaded complaint.
Diversity of Citizenship Jurisdiction
A federal court has diversity of citizenship jurisdiction when complete diversity is present and the amount in controversy exceeds $75,000.
Supplemental Jurisdiction
Supplemental jurisdiction allows a federal court with valid subject-matter jurisdiction over a case to hear additional claims which the court would not independently have jurisdiction. The claims must arise from a common nucleus of operative fact.
Compulsory Counterclaim
A compulsory counterclaim arises from the same transaction or occurrence as the original claim. A federal court sitting in diversity has supplemental jurisdiction over compulsory counterclaims.
Permissive Counterclaim
A permissive counterclaim does not arise out of the same transaction or occurrence. A permissive counterclaim can only supplemental an original claim if the claim independently satisfies diversity.
Crossclaim
A crossclaim is an offensive claim against a co-party arising from STO. Supplemental jurisdiction applies to crossclaims arising from STO as original claim.
Removal
A defendant may remove a case to federal court in the district where the state court case was originally filed if the federal court has subject-matter jurisdiction and removal is sought in 30-days.
Removal: Diversity
Jurisdiction
A defendant may remove if complete diversity is present, the amount in controversy exceeds $75,000, and the action is brought in a state which no defendant is a citizen.
Remand
A plaintiff must file a motion to remand to state court within 30-days after removal.
Personal Jurisdiction
State courts may exercise personal jurisdiction over a nonresident defendant when there is authorization by the state and constitutional due process.
Traditional Bases for PJ
A state has personal jurisdiction over a nonresident defendant based on domicile, physical presence in the forum, consent, or waiver by appearing.
Constitutional Due Process for PJ
Constitutional due process requires that defendant has sufficient minimum contacts so as not to offend traditional notions of fair play and substantial justice.
Service of Process
A plaintiff has 90-days after filing to serve a copy of the summons and complaint “process” on the defendant. Service of process can be achieved by any nonparty who is at least 18 years old.
Proper Venue
Venue is proper in any district where any defendant resides if all defendants reside in same state; a substantial part of the events giving rise to claim occurred; or if neither apply then wherever defendant is subject to PJ.
Proper Venue Transfer
If venue is proper, the court may transfer for the convenience of the parties or witnesses to any court where the case could have originally been filed. Rules of transferor court apply.
Improper Venue Transfer
If venue is improper, the court must dismiss the case or transfer to a venue in which the case could have originally been filed.
Erie Doctrine
Under the Erie doctrine, a federal court sitting in diversity must apply the law of the forum state in which it sits regarding substantive areas. However, a federal court will apply its own procedural law.
Preliminary Injunction
A plaintiff seeking a preliminary injunction must establish likelihood of irreparable harm; likelihood to suffer greater harm than defendant; likelihood of success on the merits; and injunction in the best interest of public.
TRO
A plaintiff seeking a TRO must establish likelihood of immediate and irreparable harm; likelihood to suffer greater harm than defendant; likelihood of success on the merits; and injunction in the best interest of public.
Entry of Default
A default is entered by a clerk if there is no timely answer. Entry of default itself does not give plaintiff rights to recovery.
Default Judgments by Clerk
A default judgment is entered by a clerk for a “sum certain” and does not require notice.
Default Judgment by Judge
A default judgment is entered by a judge when the sum needs to be decided. Default judgments entered by a judge require notice if defendant has appeared.
Pleadings
The complaint must state grounds for subject matter jurisdiction, a short statement of the claim that shows the pleader is entitled to relief, and a demand for relief.
Answer
The defendant’s answer must state a specific denial or admission of each allegation in the complaint or a general denial of all allegations. Answer must be filed 21-days after service; 14-days after pre-answer motion is denied; and 60-days if service was waived.
Amendment by Right
A party may amend a pleading once as a matter of right within 21-days if no responsive pleading is required.
Amendment by Leave of Court
The court can permit an amendment to a pleading when justice so requires.
Relation Back: Claims
If the pleading is amended to include a new claim or defense, the amendment will relate back to the date of the original pleading if the new claim arose out of the same transaction or occurrence.
Relation Back: Defendant
If the pleading is amended to include a new party or change a party, the amendment will relate back to the date of the original claim if claim arises from STO; the party to be brought receives notice within reasonable time; and the party knew or should have known that the action would have been brought.
Permissive Joinder
Parties may join as plaintiffs or be joined as defendants when a common question of law or fact exists and the claim arises from STO.
Compulsory Joinder
A party must be joined if court has PJ over absent party; absent party would not destroy SMJ; and either: complete relief cannot be accorded, OR absent party has a interest in the action and their absence will impede the ability to protect that interest.
Impleader
A defendant may implead a third-party who may be liable for all or part of the plaintiff’s injuries.
Intervention
A nonparty may intervene if they have an interest in the subject-matter of the litigation and their interest is not adequately protected.
Class Actions
A person can sue on behalf of class if there is numerosity, commonality, typicality, and adequacy.
Class Certification
A class will be certified if separate actions would create risk of inconsistent adjudications, grounds of relief are appropriate for the class, and class action is superior to alternate methods.
Discoverable Information
A party may obtain all nonprivileged info relevant to any party’s claim or defense and proportional to the needs of the case.
Depositions
A party may take the deposition of any party or nonparty, with a subpoena, after initial disclosures have been made. The parties are limited to 10 depositions.
Initial Disclosures
Without request, each party must provide contact information of individuals with discoverable information, copy or description of evidence that may be used to support claims or defenses, computation of damages, and insurance agreements that may be liable.
Work-Product Doctrine
The work-product doctrine protects materials prepared by an attorney or client in anticipation of or during litigation from discovery by opposing counsel.
Qualified Privilege
Work-product can be discovered if materials are otherwise unavailable, there is undue hardship, and party shows substantial need for materials.
Motion for S/J
A motion for summary judgment must be granted if, when viewing in light most favorable to nonmoving, there is no genuine dispute as to a material fact and moving party is entitled to judgment as a matter of law. Must be filed 30 days after close of discovery.
JMOL
A motion for JMOL must be granted when viewing in light most favorable to nonmovant the court finds that a reasonable jury would not have a legally sufficient basis to find for nonmovant. May be filed at close of nonmovant’s evidence or close of evidence entirely.
R-JMOL
A renewed motion for JMOL must be granted when, viewing in light most favorable to nonmovant, the court finds that a reasonable jury would not have a legally sufficient basis to find for nonmovant. Must be requested 28-days after final judgment if it was preserved by filing JMOL and is limited to issues raised in JMOL.
Motion for New Trial
The court may grant a new trial if an error was made at trial; newly discovered evidence existed at the time that was overlooked; prejudicial misconduct; verdict against weight of evidence or based on false evidence.
Remittur
Remittur allows the plaintiff to accept a lesser award or a new trial when the jury award shocks the conscience.
Rule 11 Certifications
Every pleading must be signed by an attorney certifying that it is not presented for an improper purpose, legal contentions are warranted and not frivolous, factual contentions have evidentiary support or will after discovery, and denials of factual contentions are warranted.
Rule 11 Sanctions
“Safe Harbor Provision”
A party or the court may move for sanctions if the certified pleadings violate the requirements. The party seeking sanctions must serve a separate motion on the other party, but the motion may not be filed if the challenged document is withdrawn or appropriately corrected within 21-days.
Res Judicata
Res judicata precludes successive litigation of an identical claim when the original claim resulted in final judgment on the merits, the claims are sufficiently identical, and the claimant and defendant must be the same.
Collateral Estoppel
Collateral estoppel preclude religiation of issues of fact or law when the issue sought to be precluded is the same, the issues were actually litigated, issue was determined by a valid final judgment, and determination was essential to the prior judgment.
Collateral Order Doctrine
A party may appeal an interlocutory order if the ruling: (1) decides a claim or issue that is separable from and collateral to the merits; (2) involves a serious unsettled legal question; and (3) would be effectively reviewable if final judgment is waived.
Rights to Jury Trial
The 7th Amendment protects the right to a jury trial in federal courts with civil cases where claims exceed $20. A jury trial request must be made within 14-days after an issue involving a jury arises.
Jury Claims: Equitable v. Legal
When there is an equitable claim and a legal claim with a request for a jury trial on the legal claim, the legal claim will be presented to the jury first and then the equitable claim to the judge.
