Civil Procedure Flashcards
Subject matter jurisdiction
A court’s competence to hear and determine cases of general class and subject to which proceedings in question belong
A federal court with SMJ is required to adjudicate a controversy despite the pendency of a similar action in a state court
- Can only abstain under limited circumstances, such as when the state law claim on a state issue would eliminate the need for the federal court to decide a federal constitutional issue or they are parallel proceedings
Federal question jurisdiction
District courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of U.S.
Diversity jurisdiction
Federal courts have jurisdiction when parties are citizens of different states or citizens of state and foreign state and amount in controversy exceeds $75,000
- Need complete diversity – no P may be citizen of the same state as any D
- Citizenship – for individual, domicile; for corporations, state of incorporation and principal place of business (nerve center)
- AIC – good-faith assertion is sufficient unless there is legal certainty that P cannot recover alleged amount
- Aggregation of claims – for Ps with common/undivided interest
- Permissive counterclaims need to meet AIC but compulsory counterclaims do not
Supplemental jurisdiction
Federal court may exercise SJ over additional claims which court would not independently have SMJ but that arise out of “common nucleus of operative fact”
- For permissive joinder, only need to satisfy CD, not AIC
- For counterclaims, permissive must satisfy both DJ requirements but compulsory must only satisfy CD
- For cross-claims, need to arise out of same transaction or occurrence; do not need to satisfy DJ requirements
Removal jurisdiction
D may generally remove case from state court to federal district court having SMJ
- Determined by pleadings when petition to remove is filed; diversity must exist at time of filing of original action and time notice of removal is filed
- If removal based solely on DJ, may only be removed if no D is citizen of state in which state-court action was filed
- If FQ claims are joined with claims that aren’t independently removable, entire case may be removed
- D must file notice within 30 days after receipt by or service on D of initial pleading
Personal jurisdiction – bases for in personam
- Voluntary – appearance alone does not waive the right to object to PJ
- Domicile – person domiciled in state
- Consent – can be express, implied, or voluntary through appearance in court (unless to object to JX)
- Long-arm statute – nonresidents who engage in some activity in state or cause some action to occur within state to extent permissible under DP Clause
Personal jurisdiction – DP requirements
D must have minimum contacts + must comport with notions of fair play and substantial justice
- Minimum contacts – purposeful availment of forum state (such that D should reasonably foresee being taken to court there)
a. Specific jurisdiction – cause of action arises out of D’s contact with forum
b. General jurisdiction – CoA does not arise out of D’s contact with forum; usually only when “at home” in forum state - Fair play/substantial justice – factors such as forum state’s interest in adjudicating, burden on D of appearing
Venue
Venue proper in federal judicial district where
- Any D resides in state where all Ds reside;
- Substantial part of events/omission occurred; or
- Property that is subject to action is located.
- Otherwise, where any D subject to PJ
IL DIS: venue proper in county where
- Any D joined in good faith resides; or
- CoA arose.
- Otherwise, any county if all Ds are nonresidents
Change of venue
- Original venue proper
- DJ – apply law from transferor court
- FQ – apply law from own court of appeals - Original venue improper
- DJ – apply law of transferee court
- FQ – apply law from own court of appeals
Forum non conveniens
Only used when forum that is deemed most appropriate for action is foreign court
Choice of law (Erie Doctrine)
- FQ – federal substantive and procedural law controls
- DJ – state substantial and federal procedural law controls
- Unclear whether substantive or procedure
1. Valid federal statue on point when state/federal conflict - Apply federal law
- Before applying FR, ask if it abridges, enlarges, or modifies any substantive right
a. If no, apply FR
b. If yes, only apply FR if it incidentally affects litigant’s substantive rights
2. No federal law on point – apply state law if failure to do so would lead to different outcomes - Substantive law – elements of claim/defense, SoL and tolling provisions, burden of proof
- Procedural – judge/jury allocation, assessment of attorney’s fees, equitable/legal determination
- State conflict-of-law rules – federal courts must apply
Service of process
Timing – 90 days after filing of complaint
Methods – individual
- PERSONAL,
- At D’s place of abode with person of suitable age/discretion, or
- Delivering to D’s agent
Method – corporation
1. To officer or agent, or by following state law
IL DIS: leave copy of summons with county clerk or other corresponding officer or agent
Waiver – extends time to serve answer from 21 to 60 days
- Must give D at least 30 days after request sent to return
Temporary restraining order
- Effective for limited time (generally no longer than 14 days)
- May be issued without notice to adverse party if immediate and irreparable injury will result
Preliminary injunction
Issued prior to full hearing on merits upon notice to D; P must show
- Clearly ascertainable right that needs protection
- Likely to suffer irreparable harm
- Likely to succeed on the merits
- No adequate remedy at law
ALSO, balance of hardships (benefit to P greatly outweighs burden to D) and in public interest
Permanent injunction
- Continues until dissolved by the court
- Same standard as PI but must show actual success on merits
Complaint
Short/plain statement of court’s SMJ, P’s entitlement to relief, and demand for judgment (notice pleading)
IL DIS: fact pleading – must allege all material, operative facts that make up the CoA and contain specific prayers for relief
IL DIS: to review administrative decisions, complaint must be filed with 35 days of receiving the decision and name the head of agency or agency itself as D
Rule 12(b) motion to dismiss
- Lack of SMJ (can be raised at any time)
- Lack of PJ, improper venue, insufficient process or service (must be raised in pre-answer motion or answer, otherwise waived)
IL DIS:
- § 2-615 motion with respect to pleadings must be raised in single motion and request specific relief (e.g., stricken for insufficiency or immateriality, dismissal, more definite, necessary party be joined, misjoined party dismissed)
- §2-619 motion for involuntary dismissal based on defects or defenses must be brought within time for pleading; cannot be filed after answering but defenses that can be raised can be done in an alternative manner (e.g., SMJ, barred by SoL or another judgment)
Rule 12(b)(6) motion to dismiss
Claim will be dismissed if it fails to assert legal theory of recovery cognizable at law or allege facts sufficient to support cognizable claim
- Must raise right to relief above speculation, assuming that allegations in complaint are true
- Court can consider only allegations and attached exhibits in complaint
Motion for judgment on pleadings (Rule 12(c))
Court can dispose of case when material facts are not in dispute and judgment on merits can be achieved based on pleadings
Motion for more definite statement
Claim for relief is so vague or ambiguous that party cannot reasonably draft responsive pleading
Motion to strike
When pleading contains insufficient defense or redundant, immaterial, impertinent, or scandalous matter, court may order such defense or material stricken
Answer
D must admit/deny P’s allegations or plead lack of sufficient knowledge
- General denial is OK as long as D, in good faith, intends to deny all allegations
- Affirmative defenses must be stated or they are deemed waived
- Must be filed with 21 days after service of complaint (or 60 days if waiver of service)
- If file motion to dismiss, must file within 14 days of notice of court’s action
IL DIS: general denial is NOT OK; generally, must deny every well-pleaded factual allegation except as to damages
Reply
Must be within 21 days after being served with order to reply
Amendment
Party may amendment pleading once as of right within 21 days if no responsive pleading required or after being served with answer or 12(b) motion
- Court should freely give leave to amend when justice so requires and will not result in undue prejudice to opposing party
IL DIS: allows amendment on “just and reasonable terms” at any time before final judgment
Relation back
New claim – relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction, or occurrence as original pleading
IL DIS: SoL or K time limit does not bar new claim if limitation had not expired before original claim and claim arose out of the same transaction or occurrence
New party – same standard +
- New party receives notice of action within 90 days after original complaint
- D knew or should have known about action but for mistaken concerning proper party’s identity
Amendment -time to respond
Within 14 days after service of amended pleading or time left on original pleading, whichever is greater
Rule 11 sanctions
Court may impose sanctions limited to what is sufficient to deter repetition of conduct by others similarly situated
- May order a party to pay the amount of reasonable expenses incurred as a result of that party’s misconduct, including reasonable attorney’s fee, as justice requires
Permissive joinder of parties
Ps and Ds may be joined in one action if
- Any right to relief is asserted jointly, severally, or arising out of same transaction or occurrence and
- Question of law or fact common to all Ps and Ds will arise
IL DIS: D may be joined if
- Has interest in CoA,
- Necessary for complete determination of question, or
- Liable for one of transactions
SMJ – needed
- Ds – SJ does not apply; need to meet DJ requirements
- Ps – SJ does apply; only need to meet CD requirement
PJ – needed
Compulsory joinder of parties
Necessary for just adjudication
- Complete relief cannot be provided in absence of person, or
- Disposition in absence of that person may impair persons ability to protect his interest, or
- Absence of person would leave existing parties subject to substantial risk of multiple/inconsistent obligations
Need SMJ, PJ, and to meet venue requirements
Indispensable parties – if parties cannot be joined because of JX/venue, court may dismiss case
Intervention as of right
- Nonparty has interest in property or transaction that is subject matter of action
- Disposition of action may impair nonparty’s interest
- Nonparty’s interest not adequately represented by existing parties
IL DIS: also provided if statute grants unconditional right to intervene
Permissive intervention
- Movant has conditional right to intervene under federal statute, or
- Movant’s claim/defense and original action share common question of law or fact
Interpleader
Federal interpleader rule
- Allows person holding personal property (stakeholder) to force all potential claimants into single lawsuit
- For DJ, only stakeholder needs to be diverse from claimants (claimants need not be diverse among themselves)
Federal statutory interpleader
- DJ met if any two adverse claimants are citizens of different states; property at issue must only exceed $500
Compulsory counterclaim
Arises out of the same transaction or occurrence and does not require adding another party over whom court does not have JX
Permissive counterclaim
Party has discretion if counterclaim is not compulsory
- SMJ – need DJ or FQ
IL DIS: all counterclaims are permissive; unrelated claims can be litigated in the same suit
Cross-claims
A claim against co-party may be asserted if they arise out of the same transaction or occurrence
- Cannot object to venue over cross-claim if proper venue over original claim
Impleader
Defending party (third-party P) can implead nonparty (third-party D) for L on original claim
- Can be asserted at any time after claim is filed but must get permission if more than 14 days after service of answer
- If original claim based solely on DJ, must meet DJ or FQ requirements on its own
- Need PJ over third parties
Class actions
Basic requirements
- Class so numerous that joinder of all is impracticable
- Questions of law or fact common to class
- Claims/defense must be typical of class, and
- Representatives must fairly and adequately protect interests of class
Three situations
- Risk of prejudice – separate actions would risk inconsistent adjudications or impair interests of members
- Final equitable relief – must be primary relief sought
- Common legal/factual questions – must predominate over those affecting individual class members
SMJ – for DJ, class representatives must be diverse from class opponents and at least one P must meet $75,000 jurisdictional amount
IL DIS:
- Class so numerous that joinder of all is impracticable,
- There are questions of fact or law common to the class, and these common questions predominate over questions affecting only individual members,
- The representative parties will fairly and adequately protect the interests of the class
- Class action must be appropriate method for fair and efficient adjudication
Class Action Fairness Act of 2005
- Class involves at least 100 members
- Not against prohibited government entities/specific types of cases (e.g., securities cases)
- AIC exceeds $5M
- Minimum diversity – any member of class of Ps is citizen of state different from any D
Initial disclosures
Must disclose info regarding individuals that have discoverable information, documents supporting claims/defenses, computation and backup of damages, or relevant insurance agreements for satisfying judgment
Timing – within 14 days after parties’ discovery conference
Discovery
Generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in action, proportional to the needs of the case
- Party may not discover documents and tangible things prepared in anticipation of litigation, unless the other party shows it has a substantial need and it cannot, without undue hardship, obtain their substantial equivalent by other means
- Mental impressions, conclusions, opinions, or legal theories of party’s attorney are protected
Oral depositions
Can take place any time after mandatory initial disclosure and limited to 10 per party
Interrogatories
25 written interrogatories per party relating to non-privileged matters relevant to any party’s claim/defense and proportional to the needs of the case
IL DIS: 30 interrogatories
Default judgment
When party fails to defend an action, P may seek default judgment which can be set aside for good cause by the court
Summary judgment
No genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law
- Evidence construed in the light most favorable to the nonmoving party and resolve all doubts in its favor
- May be filed any time until 30 days after close of all discovery
IL DIS: P may move at any time (if D has appeared or been required to appear), and D may move at any time
Declaratory judgment
Court tells parties their rights and responsibilities without awarding damages or ordering parties to do anything
Jury demand
Must be served within 14 days after service of the last relevant pleading
IL DIS: P must make a jury demand when the action is commenced; D must make a demand no later than filing of the answer
Jury size
At least six and no more than 12
IL DIS: all cases in which claim for damages is $50,000 or less shall be tried by jury of six, unless either party demands 12
Jury selection – challenges
Preemptory – three for each party; not based on race/gender
For cause – unlimited
Jury instructions
- A party may request the court to give specific instructions at the close of evidence
- Prior to final arguments, the court must inform the parties of any instructions it poses to give to the jury
- Unless a party objects on the record to an instruction, the party generally cannot raise the matter on appeal
Jury verdicts
Unless the parties stipulate otherwise,
- Verdict must be unanimous
- Verdict must be returned by jury of at least six jurors
Judgment as a matter of law (directed verdict)
The court must view the evidence in light most favorable to the opposing party and draw all reasonable inferences from evidence in favor of opposing party
Timing –any time before the case is submitted to the jury
Renewed motion for judgment as matter of law (JNOV)
If court does not grant a JML, movant can file JNOV no later than 28 days after entry of trial judgment
Claim preclusion (res judicata)
- Valid, final judgment on merits
- Voluntary dismissal without prejudice (default; e.g., lack of jurisdiction or venue or failure to join party under Rule 19) – not final
- Voluntary dismissal with prejudice or involuntary dismissal – final - Sufficiently identical causes of action
- Sufficiently identical parties – P and D must be the same and in the same roles in both
IL DIS: identity of parties or their privities
Issue preclusion (collateral estoppel)
- Same issue as the prior action,
- Issue must have been actually litigated,
- Valid, final judgment on merits, and
- Determination of issue was essential to judgment
- “Offensive” use may be permitted
- Even if these requirements are met, a party may still avoid estoppel if it can show that an application of the doctrine would be fundamentally unfair
IL DIS: no requirement of mutuality of parties
Appeal – preserving issues
In order for a party to raise an issue on appeal, that issue must be preserved for appeal, usually by making an objection during trial
- Objection must be made at time of the admission; otherwise, it is treated as having been waived
