Civil Procedure Flashcards
intervene as a matter of right
Rule 24 nonparty can motion by establishing
(1) the nonparty has an interest in the subject matter of the action;
(2) the disposition of the action may impair the nonparty’s interests; and
(3) the nonparty’s interest is not adequately represented by existing parties.
temporary restraining order (TRO)
preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction
has immediate effect and lasts no longer than 14 days (unless good cause exists)
Issuing TRO
NO notice to adverse party if moving party can:
(1) show immediate and irreparable injury will result prior to hearing the adverse party’s arguments and
(2) show efforts made at giving notice and reason why notice should not be required AND
(3) party seeking a TRO must post bond to cover costs in event TRO is issued wrongfully
preliminary injunction process
(1) MUST give opponent notice
(2) Court holds a hearing on the issue
(3) party seeking injunction must provide bond to cover costs in event injunction is issued wrongfully.
A party seeking Preliminary Injunction must establish:
(1) likely to succeed on the merits;
(2) likely to suffer irreparable harm in the absence of relief;
(3) balance of equities is in his favor; and
(4) the injunction is in the best interest of the public.
remove
D in any civil action filed in state court has the right to remove it to the district court for the district in which the state court action was filed IF the civil action is within the original jurisdiction of a U.S. district court.
change of venue motion:
a district court may transfer any civil action to any other district or division where it might have been brought
(1) For the convenience of the parties and
(2) In the interests of justice,
proper venue
(1) judicial district in which any D resides (of all reside in same state)
(2) judicial district in which a substantial part of events or omissions occurred
Transfer re: forum selection clause
Clause is accorded respect.
If clause specifies a federal forum, most circuit courts treat clause as prima facie valid, set aside ONLY IF strong showing transfer would be:
(1) unreasonable and unjust OR
(2) clause was invalid for (fraud or overreaching)
S.Ct held clause should be given “controlling weight in all but the most exceptional cases.”
Transfer re: Forum Select Choice of Law
Venue transferred based on valid forum selection clause– transferee court must apply the law, including the choice-of-law rules, of the state in which it is located (aka forum state)
doctrine of claim preclusion (res judicata)
final judgment on merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action
(1) same P and same D (in the same roles) (or privies)
(2) same claim
(3) final judgment on the merits
issue preclusion (collateral estoppel)
precludes re-litigation of ISSUES of fact or law that have already been necessarily determined by judge or jury in an earlier claim
(1) party against whom the issue is to be precluded (or privies) was party to original action
(2) issue was actually litigated in prior action
(3) issue was determined by valid/binding final judgment; AND
(4) determination of issue was ESSENTIAL to prior judgment
use collateral estoppel offensively
Permissible
BUT trial courts broad discretion re: issue preclusion – If a plaintiff could have EASILY JOINED in earlier action, a trial judge should NOT allow use of offensive collateral estoppel
Sanctions under Rule 37
Before sanctions, party MUST first:
- attempt to obtain evidence from P WITHOUT a court order and
- make motion to compel evidence
Expenses CANNOT be awarded if the movant failed to make a good-faith effort to secure the information before filing the motion
