Civil Procedure Flashcards
What is an injunction?
An order prior to trial to preserve the status quo
The adverse party must be given notice and an opportunity to be heard
What must the plaintiff show for a court to grant an injunction?
(1) The plaintiff will suffer irreparable harm if the injunction is not granted
* Most important factor. If the plaintiff has an adequate remedy at law (e.g. money damages will adequately compensate) then the injunction will be denied
(2) Harm to the plaintiff outweighs the harm to the defendant
(3) The plaintiff shows that he is likely to be successful on the merits; and
(4) the favpublic interestors granting the injunction if the injunction is not granted
What is a temporary restraining order?
If irreparable injury will occur before the hearing on the preliminary injunction, a party may seek a temporary restraining order to preserve the status quo until the hearing.
Generally, the adverse party must be given notice, but a TRO may be imposed without notice of a hearing for a maximum of 14 days by meeting three conditions:
- (1) The moving party states specific facts in an affidavit or verified complaint of the irreparable injury she will suffer if the TRO is not granted
- (2) The moving party certifies in writing the efforts she made to notify the adverse party and the reasons why notice not be required
- (3) The moving party provides security to pay for any damages incurred by the adverse party if the court later finds he was wrongfully restrained
A person must have actual notice of a TRO before he can be held in contempt for violating it
What must be included in a complaint?
(1) Grounds for federal jurisdiction
(2) A short statement of the claim showing the pleader is entitled to relief, and
* Recently the court has required statement of a plausible, not just possible, claim
(3) A demand for judgment for relief, which may be in the alternative
What are the defenses one can raise in a motion to dismiss?
Lack of subject matter jurisdiction
Lack of personal jurisdiction
Improper venue
Insufficiency of process
Insufficiency of service of process
Failure to state a claim upon which relief can be granted
Failure to join indispensable parties
What must the defendant put in his answer?
A specific denial or admission for each averment in the complaint, or a general denial with specific admissions of the averments
A statement that the defendant doesn’t have knowledge or sufficient information to constitute a belief constitutes as a denial
Failure to deny constitutes an admission
Must also state any affirmative defenses
A reply is filed by the plaintiff in response to the answer (generally by court order)
A party may set out as many alternative claims or defenses, regardless of consistency
What is default and a default judgment?
A default is a notation in the case file by the court clerk that there has been no answer filed within the time limit
- A default can be set aside if good cause is shown
- The court clerk will send all parties a notice that default has been entered
A default judgmen is a judgment that is entered against the defendant because he did not oppose the case
- If the defaulting defendant has appeared, he is entitled to notice at least seven days prior
- Once a default judgment has been entered, the defendant loses the ability to contest liability, but can still appear at a hearing to contest damages
What is a compulsory counterclaim?
If the claim arises from the same transaction or occurrence as the plaintiff’s claim, it must be pleaded as a counterclaim or it will be barred
- Federal courts have supplemental jurisdiction over a compulsory counterclaim that otherwise does not meet the requirements for diversity of citizenship or federal question jurisdiction
What is a permissive counterclaim?
Any other claim the defendant has against the plaintiff
Must meet jurisdictional requirements
What are the rules for amending pleadings?
A pleading may be amended once within 21 days of its service, or, if the pleading is one in which a responsive pleading is required, 21 days after service of a responsive pleading or pre-answer motion
After, leave to amend is by consent of the court
An amendment to a pleading that arises from the same conduct, transaction, or occurrence set forth in the original pleading generally is deemed filed on the date that the original pleading was filed (relates back)
What are the rules for relation back when an amendment names a new party?
It will relate back if, within the time for service of process, the new party had sufficient notice of the action to avoid prejudice and knew or should have known that, but for the mistake concerning identity, she would have been named originally
What is compulsory joinder?
A plaintiff must join all interested parties or face dismissal if the following standards are met:
(1) Should the absentee be joined
(2) Can the absentee be joined, and
(3) If the absentee cannot be joined, should the action proceed?
When should the absentee be joined?
Complete relief cannot be accorded among the other parties to the lawsuit in the party’s absence, or
The absentee has such an interest in the subject matter that a decision in his absence will either impair or impede his ability to protect the interest or leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations
Can the absentee be joined?
Ask If the absentee is subject to service of process
If the court has personal jurisdiction over the absentee, and the absentee’s presence would not destroy diversity jurisdiction or venue, the absentee must be joined
Should the action proceed without the absentee?
Consider the prejudice to the absentee and parties, adequacy of judgment, ability to shape relief to avoid prejudice, availability of alternatives
If the court finds prejudice, the action will be dismissed
What are the requirements for class action?
(1) The class is so numerous that joinder of all members is impracticable
(2) There are questions of law or fact common to the class
(3) Named parties’ interests are typical of the class
(4) Named parties will adequately represent the interests of the absent members of the class, and
(5) One of the following is present:
- (a) Separate actions would create a risk of inconsistent results or impair the interests of unnamed parties
- (b) The defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole, or
- (c) Common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication
When is subject matter jurisdiction established under the Class Action Fairness Act?
(1) Any class member is of diverse citizenship from any defendant
(2) The amount in controversy in the aggregate exceeds $5 million (adding all class claims together), and
(3) There are at least 100 members in the proposed class
Any defendant may remove the case to federal court, even if a defendant is a citizen of the forum
When must a court decline jurisdiction under the Class Action Fairness Act?
(1) More than two-thirds of the proposed plaintiffs are citizens of the state where the action was filed
(2) A defendant from whom “significant relief” is sought is a citizen of that state
(3) The “principal injuries” were incurred in the state in which the action was filed , and
(4) No similar class action has been filed within the prior three years
What is interpleader?
A suit instituted by a person in the position of a stakeholder to require the adverse claimants to determine which has the valid claim to the stake
It applies if separate actions might result in double liability against the stakeholder
What are the differences between Rule 22 interpleader and Section 1335 interpleader?
Rule 22 requires (1) complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue, or (2) a federal question
Section 1335 requires only that one claimant must be diverse from one other and $500 be in issue
What are the standards for cross-claims?
Co-parties may assert claims against each other that arise out of the same transaction or occurrence
- Since related to the original claim, it generally falls within the court’s supplemental jurisdiction
What are the three types of disclosures required?
Names, addresses, phone numbers of people likely to have discoverable information
- Do not have to disclose if the use is solely for impeachment
Copies or descriptions of documents, electronically stored information, and tangible things in the disclosing party’s possession or control that disclosing party may use to support claims or defenses (i.e. plaintiff supplies supporting documents to support his claim; defendant supplies supporting documents to support his defense)
- Do not have to disclose if the use is solely for impeachment
Computation of damages and materials from which the computation is based
Copies of insurance agreements under which an insurer might be liable
Must be made within 14 days after conference of parties under Rule 26(f)
What are included in disclosures of expert testimony?
The identities of expert witnesses expected to be used at trial
If the expert is specially retained to provide expert testimony, or his duties as an employee of the party is to regularly give expert testimony, then he must have a signed report stating qualifications, opinions expressed, basis for opinions, and cases from the last four years in which he has testified
Otherwise, the following disclosures are required: identity of the expert, the subject matter on which he will testify, and a summary of his facts and opinions
In the absence of a court order for when the disclosure is to be made, it must be made at least 90 days before trial
What are included in pretrial disclosures?
Witnesses expected to call
Witnesses she will call if need arises
Witnesses whose testimony will be presented by means of a deposition
A list of documents or exhibits expected to offer
Evidence or witnesses used solely for impeachment need not be disclosed
A party must serve these disclosures at least 30 days before trial
Within 14 days after the disclosure the opposing party may serve objections to use of a deposition or to admissibility of disclosed documents and exhibits
What type of information is generally discoverable?
Any nonprivileged matter that is relevant to any party’s claim or defense and is proportional to the needs of the case, taking into consideration the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to information, the parties resources, the importance of discovery in resolving the issues, and whether the burden and expenses of discovery outweigh the likely benefits
It is not required the information itself be admissible at trial; the standard is the information sought is reasonably calculated to led to the discovery of admissible evidence
How does a party compel discovery?
An order from the court compelling discovery
The movant must certify he has, in good faith, conferred or attempted to confer with the party to avoid court intervention
The court will not compel if nondisclosure was substantially justified
The compelling party generally must pay costs, including attorney’s fees, for the motion
When can a party use a deposition at trial?
To impeach the testimony of the deponent as a witness
If the deponent is dead or greater than 100 miles from the place of trial or is otherwise unavailable (usually because of age, sickness, or imprisonment), or for any other person due to exceptional circumnutates
Or for any purpose if the deponent is a adverse party
What are pretrial conferences?
Used to expedite trial, foster settlement, and a final pretrial conference to formulate a plan for trial
Can the judge dictate the order of evidence at trial?
Yes. The final pretrial conference will formulate a plan for the trial, including a program for admission of evidence
After the pretrial conference, the court issues an order that controls the course of events at trial, including issues needing resolution and the order in which they are presented to the jury
The order supersedes pleadings by the parties
What is voluntary dismissal by a plaintiff?
Without prejudice, once as a matter of right; also possible by stipulation or by court order
If dismissed as a matter of right without prejudice, must be done before defendant files answer or motion for summary judgment
What is involuntary dismissal?
Plaintiff fails to prosecute the case or to comply with the Rules or a court order
May occur any time
What is a motion for judgment on the pleadings?
On the face of the pleadings (without considering matters outside the pleadings), the moving party is entitled to judgment.
Treated as a motion for summary judgment if accompanied by outside matters
Must be filed after pleadings are closed but not so late as to delay trial
What is summary judgment?
No genuine dispute of material fact and moving party is entitled to judgment as a matter of law
May be supported by pleadings, affidavits, and discovery materials
Unless local rule or court order provides otherwise, a party may file a motion for summary judgment at any time until 30 days after close of discovery
If a motion is premature, a judge may defer ruling on it
What is a judgment on partial findings?
In a nonjury trial, the judge may enter a judgment as a matter of law if she makes dispositive partial findings on a claim
During trial, once the judge has heard sufficient evidence to make dispositive findings and all parties have been fully heard on the issues
What is a judgment as a matter of law (directed verdict)?
Evidence viewed in light most favorable to motion’s opponent leads a reasonable person to conclude in favor of the moving party
Must be made after the opponent has presented case but before submission to the jury
What is a renewed motion for judgment as a matter of law (JNOV)?
The verdict returned could not have been reached by reasonable persons
The moving party must have previously sought judgment as a matter of law sometime during trial
Must be made within 28 days after the entry of a judgment
What is a motion for a new trial?
The court may grant a new trial because of an error during the trial, or because the verdict is against the weight of the evidence
If the verdict is excessive, the court may order a new trial or offer the plaintiff remittitur, which allows the plaintiff to choose between a lesser award or a new trial
When can a party appeal an order?
A final order that disposes of the whole case
- The final order must dispose of all claims by all parties on the merits to dispose of the whole case
- Judgment is then considered final
Exception - the court may enter a final judgment as to fewer than all of the claims when:
- (1) an express determination that there is no just reason for delay, and (2) a direction for the entry of judgment
- This type of final judgment is appealable without disposing of other claims
- The judgment severs the claims adjudicated from the other claims in the case
What is an interlocutory appeal?
A discretionary appeal available when (1) the trial judge certifies that the interlocutory order involves a controlling question of law, and immediate appeal from the order may materially advance the ultimate termination of litigation, and (2) the court of appeals agrees to allow the appeal
What is mandamus?
An order commanding a trial judge to act, or a prohibition on the judge to refrain from acting
Writs of mandamus are only available if an appeal be will insufficient to correct a problem and the trial court’s actions constitute a serious abuse of power that must be immediately corrected
Only available in exceptional circumstances
What are the applicable time periods for filing?
14 days
- Expiration of TRO
- Time to file jury demand after last pleading directed to the jury-triable issue is served
- Time to appeal class action certification or denial
- Time to file initial disclosures after first conference
21 days
- Time after service of complaint to answer or file a Rule 12 pre-answer motion
- Time to amend pleading once, as a matter of right, after its service or after responsive pleading or motion is served
- Time to withdraw pleading after a Rule 11 motion is served
28 days
- Time after judgment to file a renewed motion for judgment as a matter of law
- Time after judgment to file a motion for a new trial
30 days
- Time for initial removal
- Time for remand
- Time to return request to waive service of process
- Time for appeals
- Must file pretrial disclosures at least 30 days before trial
60 days
- Time to answer the complaint or file a pre-answer motion if D waives services of process (add 30 days if outside of the US)
90 days
- General time limit for service of process
- Must file expert testimony disclosures at least 90 days before trial
1 year
- Outer time limit for removal based on diversity
- Outer time limit for new trial based on newly discovered evidence
What is claim preclusion?
Also known as res judicata
Once a final judgment on the merits has been rendered on a particular cause of action, the plaintiff is barred from trying the same cause of action in a later lawsuit
What is issue preclusion?
Also known as collateral estoppel
(1) A final judgment for the plaintiff or defendant
(2) As to issues actually litigated and essential to the judgment
(3) Between the same plaintiff and same defendant
(4) precludes litigating the issues in a subsequent case on a different cause of action
What is personal jurisdiction?
It concerns the court’s power over the parties
- Not the court’s power over the case; that is subject matter jurisdiction
The primary issue to resolve is can plaintiff sue defendant in the state?
What is the two-step analysis for personal jurisdiction?
To satisfy a statute, and
To satisfy the Constitution (due process)
Generally the same both in federal and state court
What is the statutory step?
Each state is free to have its own statutes (long-arm statute) for in personam jurisdiction. In most states, the statute reaches the full extent of the Constitution
For MEE, make sure to mention that one needs a state statute and then move to the constitutional analysis
What is the Constitutional analysis?
Does the defendant have such minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice?
The three factor analyzed to determine whether the test is met are:
- Contact
- Relatedness
- Fairness
For an essay, engage all relevant factors and come to a reasonable conclusion
What is the contact factor?
There must be a relevant contact between defendant and the forum state. Two additional factors must be addressed:
- (1) The contact must result from purposeful availment from defendant’s voluntary act
- Defendant must reach out to the forum and the contact must come from reaching out to the forum
- Ex.: Marketing a product in the forum, Using the roads of the forum, Establishing domicile in the forum, Traveling in the forum, Sending a tortious e-mail to the forum
- Defendant can purposefully avail himself without stepping into the forum by causing an effect on the forum
- (2) It must be foreseeable that defendant could be sued in the forum
What is the relatedness factor?
Plaintiff’s claim must arise from contact with the forum
Determines whether the court has general or specific personal jurisdiction
What is the fairness factor?
Only addressed in specific personal jurisdiction cases
Three additional factors:
- (1) Burden on defendant and witnesses
- Does due process guarantee that the suit will be in the most convenient forum for defendant?
- The forum is constitutionally permissible unless defendant can show that it puts her at a severe disadvantage.
- Difficult burden to meet because the relative wealth of the parties is not determinative
- Does due process guarantee that the suit will be in the most convenient forum for defendant?
- (2) The state’s interest
- The forum state may want to provide a courtroom for its citizens, who are allegedly being harmed by out-of-state citizens
- Always true if plaintiff is a citizen
- (3) Plaintiff’s interest
- Plaintiff prefers to sue in her home sate
What is the difference between specific personal jurisdiction and general personal jurisdiction?
If the claim arises from defendant’s contact with the forum, then specific
For general, defendant must be “at home” in the forum
- A person is at home where domiciled
- A corporation is at home where (1) incorporated, and (2) where it has its principal place of business
- A person or corporation can be sued in the state where general jurisdiction is present for any claim (i.e. if defendant is domiciled in TX but claim arose in NM, the plaintiff can sue defendant in TX court for the claim arising out of NM).
Suppose D is domiciled in State A but is voluntarily present in State B when served with process for a suit in State in B. Does this “tag” jurisdiction make D subject to general personal jurisdiction in State B (even though not “at home” in State B)?
Yes, the Supreme Court has never rejected it
What types of suits can state courts hear?
Generally, any type of case as long as personal jurisdiction is satisfied
- Most cases arising under federal law can be heard in state court
- There are a few limited exceptions in which a federal court has exclusive jurisdiction (e.g. patent infringement, bankruptcy, some federal securities and antitrust claims)
When does a federal court have subject matter jurisdiction?
(1) Diversity of citizenship
(2) Federal question
Parties cannot consent to subject matter jurisdiction
What are the requirements to meet diversity of citizenship?
(1) The case is either (a) between citizens of different U.S. states, or (b) between a citizen of a US state and a citizen of a foreign country, and
* If the citizens are two foreign citizens with no US citizen, cannot sue under diversity
(2) the amount in controversy exceeds $75,000
What is the complete diversity rule?
Diversity does not exist if any plaintiff is a citizen of the same state as any defendant
What is the state of a US citizen?
The state where she is domiciled
How does one establish a new domicile? (commonly tested)
(1) presence in the new place, and
(2) the intent to make the place one’s home for the foreseeable future
* Factors to establish intent include taking a job, buying a house, joining civic organizations, registering to vote, qualifying for in-state tuition
Presence with no intent is not enough; similarly, intent with no presence is not enough
At what point in time do you test for diversity?
The date the complaint is filed
What is the citizenship of a corporation? (commonly tested)
(1) Every state and country where incorporated and
(2) The one state or country of its principal place of business
How do you determine the principal place of business?
The “nerve center”
- Where managers direct, coordinate, and control business activities
Can only have one principal place of business
What is the citizenship of unincorporated associations?
The citizenship of all partners or members
- Includes both general and limited partners
What is the citizenship of a decedent, minor, or incompetent?
The place of domicile
Not the citizenship of their representative
What is aggregation?
Adding two or more claims to meet the amount in controversy requirement (exceed $75,000)
A plaintiff can aggregate factually unrelated claims against the same defendant
Two or more plaintiffs cannot aggregate their claims (i.e. P1 sues for $40,000 and P2 sues for $40,000 against same D; aggregation not permitted)
What is the rule of aggregation for joint tortfeasors?
Use the total value of the claim against joint tortfeasors
How do you establish the amount in controversy for equitable claims?
Apply either one of two tests:
- From the plaintiff’s viewpoint, the value of relief is worth more than $75,000, or
- From the defendant’s viewpoint, the cost to comply with the injunction would be more than $75,000
Still, federal courts have the discretion to decline to hear cases based on equitable relief
What are the requirements to satisfy a federal question?
Plaintiff’s claim must arise under federal law
- It is not enough that some federal issue is raised by the complaint
- Look at the claim itself and ignore other material plaintiff alleged
- Plaintiff must be enforcing a federal right
A defense alleged by defendant is irrelevant
What is removal jurisdiction?
Transferring a case from state court to federal court
If removal was improper, then the federal court can remand back to state court
- Plaintiff moves to remand back to state court no later than 30 days after notice of removal was filed in federal court (for any reason other than lack of subject matter jurisdiction, which includes both federal question and diversity jurisdiction)
For lack of subject matter jurisdiction, plaintiff can move to remand at any time; lack of subject matter jurisdiction is never waived
Who is entitled to assert removal?
Defendant, by filing a “notice of removal” in federal court and stating the grounds for removal, and then serving a copy of the notice on all plaintiffs. Defendant then must file a copy of the notice in state court
- All defendants must join in the removal (need not join same document as long as all file separate notices of removal)
When must defendant assert removal?
Within 30 days of service (not filing) of the first paper that shows the case is removable
- Usually within 30 days of service of process
The 30 day rule starts anew with service on an additional defendant
What cases can be removed?
Any case that meets the requirements for diversity of citizenship or federal question
Two exceptions that apply for diversity of citizenship only:
-
No removal if any defendant is a citizen of the forum
- E.g. P(GA) sues D1(MN) and D2(AL) on state law claims for $500,000 in an AL state court. Removal is improper because D2 is a citizen of AL
- Citizenship would be irrelevant if the case invoked a federal question
- If P voluntarily dismisses D2, then the case becomes removable within 30 days after dismissal (but no longer than one year after case was filed, unless D1 can show P acted in bad faith by adding D2 only to prevent removal)
- No removal more than one year after the case was filed in state court
What is supplemental jurisdiction?
It gets claims into a federal case even though the claims do not invoke diversity of citizenship or a federal question
You must have a claim that is already in federal court based on diversity or federal question
It is a form of subject matter jurisdiction
What is the test to invoke supplemental jurisdiction?
The claim must arise from the same transaction or occurrence (the claim must share a common nucleus of operative fact)
What is the limitation in which claims cannot invoke supplemental jurisdiction?
In a diversity case, claims by plaintiff cannot invoke supplemental jurisdiction
Diversity cases only
What are the discretionary factors for supplemental jurisdiction?
The court has discretion to decline claims that invoke supplemental jurisdiction
- Generally if the state law claim is so complex or the state law issue would predominate the case
What is the Erie doctrine?
A doctrine applied in federal court for diversity of citizenship questions to determine whether the judge must follow state law
What are the steps of the Erie doctrine?
(1) Is there a federal law (federal constitution, statute, or rules of procedure) on point that directly conflicts with state law?
* If so, apply federal law (based on the supremacy clause)
(2) If there is no federal law on point, the federal judge must apply state law if the issue to be determined is substantive
* The issue is substantive if it is (a) an element of a claim or defense, (b) statute of limitations, (c) rules for tolling statute of limitations, or (d) conflict of law rules
(3) If there is no federal law on point and the issue is not one of the four above, the federal judge must determine whether the issue is substantive (the law is unclear on this point)
- Factors to apply include:
- (i) Outcome determinative - would applying or ignoring the state law affect some outcome of the case? If so, it is probably substantive, so apply state law
- (ii) Balance of interests - does either federal or state system have a strong interest in having its rule applied?
- (iii) Avoid forum shopping - if the federal court ignores state law on the issue, will it cause parties to flock to federal court? If so, it should probably apply state law
What is the standard for venue?
Plaintiff may lay venue in any district where
- All defendants reside, or
- A substantive part of the claim arose
Venue provisions do not apply if the case was removed.
- In removal, venue is in the federal district embracing the state court where the action was filed
If the defendant does not reside in the United States, then venue is proper in any district
What is the standard for transfer of venue?
The transferee court must be a proper venue and have personal jurisdiction over the defendant
- An exception is that the court can transfer to any district (even an improper one) if all parties consent and the court finds cause for the transfer
What are the choice of law rules as applied to venue?
The law of the transferor court applies [there is an exception, look it up]
What factors does the court consider for venue transfer?
Public factors - what law applies, what community should be burdened with jury service, the desire to keep a local controversy in a local court
Private factors - convenience of where the witnesses and evidence are
The burden to argue convenience is on the party seeking transfer (usually the defendant)
What is a forum selection clause?
A provision in which the parties agree that a dispute between them will be litigated in a particular place
Federal law enforces forum selection clauses if they are not unreasonable
Some states do not enforce forum selection clauses, but in federal court, federal law governs transfer
If the original court is an improper venue, what may the court do?
It may either transfer in the interest of justice or dismiss the case
What is forum non conveniens?
When a court dismisses or stays a case because the more convenient court is in a foreign country (making transfer impossible)
Stay means to hold in abeyance (nothing happens, idea is P will likely
What is the purpose of notice/service of process?
Defendant is entitled to notice that he has been sued
Notice must be reasonably calculated, under all circumstances, to apprise interested parties of the action
Who can serve process?
Any nonparty who is at least 18 years old
The process server does not need to be appointed by the court
Process must be served no longer than 90 days after the complaint is filed
How is process served?
Personal service - papers are personally given to defendant, can be anywhere
Substitute service
- Can be served at defendant’s usual abode and served with someone who resides there who has suitable age and discretion
- Does not need to be related to defendant or be 18
Service on defendant’s agent - served to a designated agent, or anyone who is an officer, manager, or general agent
State law method - any service that is permitted by state law of the state (a) where the federal court sits or (b) where service is made (e.g. service by mail)
For businesses or organizations, must be either served on an agent or by a state law method
If the person is a minor or incompetent, then must use the state law method of the state where service is to be made
What time periods cannot be extended?
The district court has discretion to extend time periods
Time periods that can never be extended are renewed motions for judgment as a matter of law, motions to amend a judgment, and motions for new trial (all must be filed within 28 days of entering a judgment), and motions for relief from a judgment
