Civil Procedure Flashcards
What is required for traditional personal jurisdiction?
D domiciled in forum; personally served while present in forum; express or implied consent to jx.
What does the Long Arm Statute assume?
Assumes statute reaches to the constitutional limit.
What is the constitutional analysis for personal jurisdiction?
Does D have such minimum contacts with the forum so that exercise of jx doesn’t offend traditional notions of fair play and substantial justice?
What are the components of minimum contacts?
- Purposeful Availment
- Foreseeability
What factors affect fairness in personal jurisdiction?
- Relatedness
- Convenience
- State’s Interest
What is the difference between specific and general jurisdiction?
- Specific = D’s specific contact with forum
- General = D corp must be ‘at home’ in forum state
What are the requirements for diversity jurisdiction?
- Complete Diversity
- Amt in Controversy > $75K
Can claims be aggregated in diversity jurisdiction cases?
OK to aggregate claims of one P against one D, but not two claims by two or more Ps against two or more Ds.
What does federal question jurisdiction entail?
‘Arises under’ Federal law.
What is supplemental jurisdiction based on?
‘common nucleus of operative fact’
Can a plaintiff use supplemental jurisdiction in a diversity case?
No, to overcome lack of diversity.
What are the conditions for removal of a case?
- D can remove if case could be heard in Fed ct under subject matter jx
- All Ds must agree
- No removal by P if more than a year passed since case was filed
- No removal in diversity case where any D is a citizen of the forum.
What is the timing requirement for serving a defendant?
Must serve D within 90 days after complaint filed.
What happens if a plaintiff fails to serve within the required time?
Ct must dismiss w/o prejudice unless P shows good cause.
What does the Erie Doctrine state?
In diversity and supp jx cases, Fed Ct uses Fed procedural law but must apply state substantive law.
What factors determine if a law is procedural or substantive under the Erie Doctrine?
- Outcome determinative
- Balance of interests
- Avoids forum shopping
What is a Preliminary Injunction (PI)?
Preserves status quo pending determination of merits of litigation.
What must be shown to obtain a Preliminary Injunction?
- Imminent irreparable injury (non-monetary)
- No adequate legal remedy
- Substantial likelihood of success on the merits
- Balance hardships
- Not adverse to public interest
What is a Temporary Restraining Order (TRO)?
Preserves status quo and prevents irreparable harm until PI hearing.
What is required for a TRO notice?
Notice required unless certain conditions are met.
What must an attorney certify under Rule 11?
- No improper purpose
- Legal contentions warranted by law
- Factual contentions have evidentiary support
What is required for a claim to be sufficient?
Must plead facts supporting plausible claim enough to put D on notice and prepare reasonable response.
What are the two types of defenses under Rule 12(b)?
- Waivable: lack of PJ, improper venue, insufficient process or service
- Non-waivable: failure to state claim, failure to join indispensable party, lack of SMJ
What is the time frame for a defendant to answer after a pre-answer motion is denied?
D only has 14 days from denial to answer.
What locations are relevant for local actions?
Anything re: land.
What is the definition of ‘transitory’ in terms of venue?
District in which all Ds reside; if same state but diff districts then any district where one resides; OR substantial part of claim arose.
What factors are considered for transfer of venue?
- Convenience of parties and Ws
- Interest of justice
- Public factors re: applicable law
What is ‘forum non conveniens’?
If far more appropriate ct exists elsewhere, ct dismisses w/o prej or stays case.
What are the methods of service?
- Personal service
- Substituted service
- Service on agent
What is the time frame for P to amend after serving the original pleading?
21 days
P can amend once within 21 days after serving the original pleading.
What is the time frame for D to amend after serving an answer?
21 days
D can amend once within 21 days after D serves answer.
What must D do if they wish to amend after the specified time frames?
Get opposing party’s consent or permission from court
If no right to amend, must get opposing party’s consent or permission from court.
What factors does the court consider when granting leave to amend?
Delay, prejudice, futility
Court typically gives leave to amend ‘when justice so requires.’
What are supplemental pleadings?
Pleadings that pertain to matters that occur after initial pleading
Permission from court is required for supplemental pleadings.
What is a compulsory counterclaim?
A claim against P that arises from the same transaction or occurrence
Counterclaims are compulsory if they arise from the same transaction or occurrence.
What is a permissive cross-claim?
A claim against a co-defendant arising from the same transaction or occurrence or under supplemental jurisdiction
Cross-Claim is permissive if arising from the same transaction or occurrence.
What is the requirement for impleader?
No diversity required for third-party practice between third-party D and third-party P
Impleader allows D/Cross Complaint against a 3rd Party.
What is the purpose of class treatment in cases of prejudice?
Necessary to avoid harm to class member or party opposing class
Prejudice requires class treatment to protect interests.
What are the criteria for damages in a class action?
Common questions predominate; class action is superior
Damages in class action often involve mass torts.
What notification is required in a damages class action?
Notify all identifiable members that they can opt out
Members must be informed they can opt out; otherwise, they are bound.
What is the standard for subject matter jurisdiction (SMJ) in class actions?
Federal Question or Diversity
If Diversity, only look to representative, not other class members.
What are the requirements under the Class Action Fairness Act?
Any class member diverse from any D, more than 100 class members, & aggregate claim > $5m
This act provides broader SMJ for class actions.
What is required for settlement approval in class actions?
Court approval, notice to all class members, second chance to opt out
Settlement requires transparency and opportunity for class members.
What are the required disclosures in discovery?
Initial Disclosures, List of Experts, Pretrial information
Duty to produce without request: Initial Disclosures include people, documents, computation of damages, and insurance coverage.
What is the scope of discovery?
Relevant and proportional
Must be relevant to claim or defense and proportional to needs of case.
What is the limit on interrogatories?
Limited to 25 total
Parties have 30 days to respond to interrogatories.
What is required for physical or mental examinations in discovery?
Court order
A court order is necessary to compel physical or mental exams.
What does the duty to supplement entail?
Must supplement if incomplete or incorrect
Responses must be updated if they are found to be incomplete or incorrect.
What are the sanctions for discovery violations?
Cost or contempt, monetary sanctions, strike pleadings, disallow evidence, dismiss, default judgment
Sanctions can vary based on the severity of the violation.
What is the definition of work product privilege?
Mental impression, conclusion, legal theories, opinions
Attorney work product is protected from discovery.
What is the safe harbor rule regarding ESI?
No sanctions if ESI lost in good faith before knowing it would be discoverable
Parties must take reasonable steps to preserve ESI if litigation is anticipated.
What are the requirements for permissive claims?
Arise under the same transaction or occurrence and raise one common question
Permissive claims have a common thread with the main action.
What are the three criteria for compulsory claims?
- Complete relief can’t be given without them
- Disposition may impair their ability to protect their interests
- Their absence would expose parties to double or inconsistent obligations
Compulsory claims are necessary for fair adjudication.
What is the distinction between intervention of right and permissive intervention?
- Intervention of Right: Applicant has an interest that may be impaired
- Permissive: Common question of fact and must have own jurisdiction
Both forms of intervention allow parties to join ongoing litigation.
What is impleader?
Joining a third party for indemnity or contribution on an underlying claim
Impleader allows a defendant to bring in another party related to the claim.
What is interpleader?
Instituted by P to determine who has a valid claim to the stake
Under Federal Rule, interpleader follows regular jurisdiction rules.
What are the requirements for class action certification?
Numerosity, Commonality, Typicality, Adequate Representative
These elements ensure the class action meets legal standards.
What is the effect of voluntary dismissal by the plaintiff?
Plaintiff can voluntarily dismiss before defendant serves answer or motion without prejudice.
What constitutes involuntary dismissal?
Failure to prosecute or abide by court order.
What must the moving party show in a summary judgment?
No genuine dispute of material fact.
What must the opposing party demonstrate in response to a summary judgment motion?
A triable issue exists.
How is evidence viewed in a summary judgment?
In light most favorable to the non-moving party.
What is the purpose of pretrial conferences?
To expedite the case and facilitate settlement.
What does a pretrial order control?
The course of action taken in conference.
When is the final pretrial conference held?
Close to the trial date.
What are the sanctions for failure to attend a conference?
Failure to attend, being substantially unprepared, acting in bad faith.
What is the limitation on recovery if there is a default?
Recovery is limited to what is sought in the complaint.
What does the 7th Amendment guarantee?
Right to jury in civil cases as to legal relief.
What is required for a jury verdict?
Unanimous verdict from 6-12 jurors.
What are the two types of jury verdicts?
- General verdict
- Special verdict
What is a motion for judgment as a matter of law?
Defendant moves at close of plaintiff’s evidence and all evidence.
What is the standard for a motion for judgment as a matter of law?
Reasonable people could not disagree.
What must be done before filing a renewed motion for judgment as a matter of law?
File Motion for Judgment as Matter of Law first.
What are the grounds for a motion for a new trial?
- Prejudicial error
- New evidence
- Prejudicial misconduct
- Judgment against weight of evidence
- Excessive or inadequate damages
What is remittitur?
If jury award too large, plaintiff chooses lesser figure or new trial.
What is the time frame to file an appeal after entry of judgment?
Within 30 days of entry of judgment.
What is the Final Judgment (FJ) Rule?
Decision on final merits of claim.
What are the requirements for res judicata?
- Same parties
- Ended in valid final judgment on the merits
- Asserting the same cause of action/claim
What are the requirements for collateral estoppel?
- Against someone who was a party in Case 1
- Case 1 ended in valid, final judgment on the merits
- Issue actually litigated and determined
- Issue essential to the judgment in Case 1
What is non-mutual defensive issue preclusion?
Defendant can assert if plaintiff was party to prior case, but only if plaintiff had full chance to litigate.
What is non-mutual offensive issue preclusion?
Plaintiff can assert against defendant if:
* Not unfair
* Party could foresee multiple suits
* Plaintiff couldn’t have been joined easily
* No inconsistent judgments on record.
