Civil Procedure Flashcards
Constitutional Test for Personal Jurisdiction
- Contact: Purposeful Availment and Foreseeability
- Relatedness: General v. Specific
- Fairness (Specific PJ only): Burden/Convenience, State’s Interest, and Plaintiff’s Interest
Personal Jurisdiction Constitutional Analysis
- Contact: Is there a contact between D and venue?
A. But was the contact the result of purposeful availment by D in venue?
B. Is it foreseeable that D could be sued in that venue? - Is there relatedness?
- Fairness/Reasonableness: Burden on D and witnesses?
State’s interest?
Plaintiff’s interest?
In a regular lawsuit, notice consists of two documents:
- Summons (formal court notice of suit and time for response) and
- Copy of complaint
How do you get a summons?
present it to the clerk of court for signature and seal
Who can serve process?
any nonparty who is at least 18 years old
If D is to be served in the U.S., service is to take place within how long?
within 90 days after complaint is filed
personal service
papers are given to D personally anywhere
substituted service
process is left at D’s usual abode with someone over the age of 18
service on D’s agent
process can be delivered to D’s agent if receiving service is in scope of agency
state law methods of service
we can use methods for serving process that are permitted by state law of the state (1) where the federal court sits or (2) where service is made
Do you get extra days to respond to interrogatories if they are mailed?
yes, 3 extra days
Where is a corporation’s PFB?
where managers direct, coordinate, and control business activities (nerve center)
What is an unincorporated associations’ (partnership, LLC, etc.) citizenship?
where citizenship of all its members
You can only aggregate claims of 1 plaintiff against ______ Ds.
multiple
aggregation
adding two or more claims to meet the amount requirment
To calculate amount in controversy of joint claims,
use the total value of the claim
What are the tests courts use to analyze whether equitable relief is ok?
- Plaintiff’s viewpoint: Does the object decrease plaintiff’s property by more than $75,000?
- Defendant’s viewpoint: Would it cost defendant more than $75,000 to comply with the injunction?
In a federal question case, the action is always deemed commenced for statute of limitations purposes when:
the complaint is filed with the court
Under the Class Action Fairness Act, a federal court may have subject matter jurisdiction over a class action so long as:
(i) any class member is of diverse citizenship with any defendant, (ii) the amount in controversy in the aggregate exceeds $5 million, and (iii) there are at least 100 members in the class
Typically, a defendant must serve an answer or other appropriate response within ____ days after being formally served with process.
21
A defendant who waives service of process is allowed ____ days from the date on which the plaintiff mailed the summons and complaint in which to serve a response.
60
Under Federal Rule 15(c), an amended complaint relates back to the time of the original complaint if
it asserts a claim that arises from the same transaction set forth in the original complaint and, within the time prescribed for service of process, the new defendant received timely notice of the action, the new defendant knew or should have known but for the mistake, the new defendant would have been the named defendant all along
A temporary restraining order may be granted by a court when:
it is necessary to prevent irreparable injury to a party, and the injury will result before a preliminary injunction hearing can be held.
Notice of the hearing for the issuance of a temporary restraining order must be given before it it issued unless the moving party does the following:
(i) gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition, (ii)certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and (iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained
Third-party claims may be maintained only if:
the defendant/third-party plaintiff alleges that the third-party defendant is liable to the defendant/third-party plaintiff for all or part of the defendant/third-party plaintiff’s liability to the plaintiff.
If a party fails to provide discovery or provides incomplete discovery the other party may:
move to compel discovery
A party may receive may be awarded attorney fees or have sanctions imposed on the party that was moved to compel discovery if
the moving party has made a good faith attempt to confer with the opponent to obtain the discovery without court intervention
For claim preclusion (res judicata) to apply, it must be shown that:
(i) the earlier judgment is a valid, final judgment “on the merits”;
(ii) the cases are brought by the same claimant against the same defendant; and
(iii) the same “cause of action” (or “claim”) is involved in the later lawsuit
Under the federal discovery rules, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, any issues concerning the preservation of evidence, and a discovery plan. Unless a different time is set by court order or stipulation, within how many days after this meeting must the parties provide the names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses?
within 14 days
Venue is considered to be waived unless
a timely objection (in a pre-pleading motion or, where no such motion is made, in the answer) is made to the improper venue.
Following a default by a defendant, the clerk may sign and enter a judgment for the amount set forth in Plaintiff’s affidavit if
the defaulted defendant is not an infant or an incompetent and plaintiff’s claim is for a sum certain and the default was entered because the defendant failed to appear.
A party can file a motion for a new trial no later than ___days after judgment was entered.
28
A defending party may implead a nonparty if
the nonparty is or may be liable to the party for any part of a judgment that the plaintiff may recover against it.
Review under the Interlocutory Appeals Act is discretionary with the court and may be available when:
(i) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an appeal would materially advance the conclusion of the case, and (ii) at least two appellate court judges agree to hear the appeal.`
Interlocutory (i.e., nonfinal) orders that may be immediately appealed include:
(i) an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction), (ii) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships, (iii) decrees in admiralty cases that find liability but leave damages to be assessed later, (iv) a patent infringement order where only an accounting is wanting, and (v) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.
