Civil Procedure - Federal

Question 1

subject matter jurisdiction

Answer 1

power to hear the case (SMJ)

Question 2

Diversity of citizenship requirements

Answer 2

1) either between citizens of different states or citizen of a state and citizen of a foreign country; and 2) amount in controversy EXCEEDS $75,000 (if exact, doesn’t meet amt in controversy requirement)

Question 3

Complete diversity rule

Answer 3

no diversity if any plaintiff citizen of same state as any defendant

Question 4

Citizenship of natural person

Answer 4

domicile: 1) presence in state and 2) intent to make permanent home. Note: test for citizenship when case is FILED

Question 5

Citizenship of corporation

Answer 5

1) state where incorporated AND 2) state where corp has principle place of business (PPB) - i.e., where managers direct, coordinate, and control corp activities

Question 6

Citizenship of unincorporated association (e.g., LLC, partnership)

Answer 6

use citizenship of all members

Question 7

Citizenship of decedents, minors, or incompetents

Answer 7

use their citizenship not that of their representative

Question 8

Amount in controversy

Answer 8

Plaintiff’s good faith claim must exceed $75k. Whatever P claims is fine unless clear to a legal certainty that cannot recover more than $75k (But…P who ultimately gets less may have to pay D’s litigation costs)

Question 9

When can you aggregate plaintiff’s claims to meet amount in controversy requirement?

Answer 9

We aggregate the claims of ONE plaintiff v. ONE defendant; AND for joint claims (joint tortfeasors) use total value of the claim (# of parties is irrelevant)

Question 10

Meeting amount in controversy requirement when asking for equitable relief

Answer 10

Two tests, if EITHER met, then ok -> 1) plaintiff: does blocked view decrease the value of plaintiff’s property by more than $75k; 2) defendant: would it cost defendant more than $75k to comply with the injunction

Question 11

Cases no fed court will ever hear

Answer 11

actions involving issuance of divorce, alimony, or child custody decree, or to a probate an estate

Question 12

Meeting federal question (FQ) requirement

Answer 12

Complaint must show a right or interest FOUNDED substantially on federal law (e.g., fed statute, constitution). The claim arises under federal law. Citizenship/amount is irrelevant

Question 13

Well pleaded complaint rule

Answer 13

Not enough that some federal issue raised by the complaint. P’s claim itself must arise under federal law (ask: is plaintiff enforcing a federal right? if yes - case CAN go to fed ct under FQ; if no - it cannot)

Question 14

When to invoke supplemental jurisdiction

Answer 14

Cannot be used to get a case into fed court, only works after a case is already in fed court, and now have an additional claim in that case that does not meet diversity or FQ

Question 15

“The Test” for supplemental jurisdiction

Answer 15

The claim we want to get in to fed court must share a common nucleus of operative fact with the claim that invoked FQ or diversity. Test is ALWAYS met by claims that arise from same transaction or occurrence (T/O)

Question 16

Limitations on “the test” for supplemental jurisdiction

Answer 16

In a DIVERSITY case, PLAINTIFF cannot use supplemental jurisdiction to overcome a lack of diversity. (P CAN use supp. jur. to overcome lack of diversity for a claim in FQ case and P CAN use to overcome lack of amount in controversy)

Question 17

Summary of how to go through sup jur cases

Answer 17

Non-federal, non-diversity claim can be heard in federal court if it meets “the test” UNLESS it is: 1) asserted by the P; 2) in a diversity of citizenship case (not FQ); AND 3) is against a citizen of the same state as the P

Question 18

Discretionary factors in sup jur

Answer 18

court has discretion not to hear supp claim if 1) fed question dismissed early in proceedings; or 2) state law claim is complex; or 3) state law issues would predominate

Question 19

What is removal?

Answer 19

Defendant sued in STATE court might be able to remove a case to federal court. One way street (only state to fed). If removal improper fed court can remand to state court

Question 20

When can a case be removed?

Answer 20

30 days after SERVICE (not filing) of the first paper that makes case removable

Question 21

Who can remove?

Answer 21

Defendants, but if multiple, ALL D’s must agree. P’s can NEVER remove. Also note: 30 days starts anew with service on second D

Question 22

What kinds of cases can be removed?

Answer 22

In general: one that would meet the requirements for diversity or FQ EXCEPT: 1) no removal if ANY D is a citizen of the forum AND 2) no removal more than one year after the case was filed in state court

Question 23

Where can a case be removed?

Answer 23

ONLY to federal district court embracing the state court

Question 24

Erie doctrine

Answer 24

federal court in a diversity case must apply state substantive law

Question 25

Approach for Erie cases

Answer 25

1) is there a federal law (including FRCP) on point that directly conflicts with state law? If so -> apply fed law under supremacy clause. Even FRCPs so long as valid (test - arguably procedural); 2) if no federal law on point ask is this issue one of the easy ones? (SCOTUS defined substantive so apply state law); 3) where no fed law and issue not an easy one and fed judge wants to ignore state law, ask three tests -> a) outcome determinative b) balance of interests, c) avoid forum shopping

Question 26

Easy cases under Erie that are substantive and state law applies

Answer 26

1) elements of claim or defense; 2) statute of limitations; 3) rules for tolling statute of limitations; 4) choice of law rules

Question 27

Basic idea of venue

Answer 27

Venue tells us which fed district court (SMJ tells us if we can go to fed court at all)

Question 28

Basic choices for venue

Answer 28

plaintiff may lay venue in any district where: 1) all defendants reside (special rule - in cases where all Ds reside in different districts of same state, P can lay venue in district in which any reside) OR 2) a substantial part of the claim arose. NOTE: always discuss both

Question 29

Where defendants reside for venue purposes

Answer 29

Natural persons - domiciled; businesses - all districts where subject to PJ in this case

Question 30

Transfer of venue

Answer 30

federal district court may transfer the case to another federal district court but can only transfer to a district where case could have been filed (proper venue that has PJ over Ds)

Question 31

Court's ability to transfer venue

Answer 31

If venue in original district is proper, then court has discretion to transfer to another district, based on convenience for parties/witnesses and interests of justice. Factors looked to - public and private factors showing that other court is CENTER OF GRAVITY. If venue in original is improper, court may transfer in interests of justice or dismiss

Question 32

Doctrine of forum non conveniens

Answer 32

Where there's another court far more sensible than current one, but in different judicial system (e.g., foreign country), court will dismiss or stay the case because transfer is impossible. Note: other court must be adequate (just enough that P gets day in court)

Question 33

Service of process

Answer 33

must give notice to D by 1) delivering a summons and 2) a copy of the complaint (both papers called process)

Question 34

Who can serve process?

Answer 34

Any nonparty who is at least 18 years old

Question 35

How is process served?

Answer 35

1) personal service; 2) substituted service; 3) service on D's agent; 4) state law; 5) waiver by mail

Question 36

When can you use substituted service of process?

Answer 36

1) left at D's usual abode (common sense) and 2) you serve someone of suitable age and discretion who resides there

Question 37

Service on D's agent

Answer 37

process can be delivered to D's agent if agent is receiving service within scope of agency (agent appointed by contract or law or corp's registered agent, managing agent or officer)

Question 38

State law service

Answer 38

fed court can use methods of service permitted by state law of state where fed ct sits or where service effected

Question 39

Waiver of service by mail

Answer 39

Mail to D a copy of complaint and two copies of waiver form, with a prepaid means of returning the form. If D executes and mails the waiver form to P within 30 days, D waives formal service (gets 60 days from the mailing to respond to the complaint). P then files the waiver in court. It's effective then. D doesn't waive any defenses by doing this. IF D fails to return waiver form and P serves via other means, D pays this cost

Question 40

Geographic limitation on service

Answer 40

Federal court can serve process outside the state in which it sits only if state law allows

Question 41

Immunity from service

Answer 41

D is immune from service if in state to be a witness or party in another civil case.

Question 42

Rule 11

Answer 42

Requires atty or party if pro se to sign all papers (except discovery docs) certifying that to best knowledge and belief after reasonable inquiry: 1) paper not for improper purpose; 2) legal contentions are warranted by law (or nonfrivolous argument for law change); 3) factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation)

Question 43

Rule 11 sanctions

Answer 43

Sanctions may be levied (they are discretionary) against atty, firm, or party. They are to deter a repeat of bad conduct. Can be non-monetary. Monetary paid to court not other party

Question 44

When can a party move for Rule 11 sanctions?

Answer 44

Not right after a rule 11 violation, can serve motion on other party but cannot file it. Party in violation has a safe harbor of 21 days to fix and avoid sanctions

Question 45

Effect of court raising sanctions for Rule 11 sua sponte

Answer 45

Demands party show cause why there shouldn't be sanctions and no safe harbor

Question 46

What is the complaint?

Answer 46

filing that commences an action

Question 47

What are the requirements for a complaint?

Answer 47

1) statement of grounds for SMJ; 2) short and plain statement of the claim, showing entitled to relief; 3) demand for relief sought

Question 48

Standard for stating the claim

Answer 48

Under notice pleading, only needed enough detail to put other side on notice, now, SCOTUS requires that must plead facts supporting a PLAUSIBLE claim (judge evaluates with own experience and common sense)

Question 49

Three matters that must be plead with more detail and what detail

Answer 49

1) fraud; 2) mistake; 3) special damages. Must plead with PARTICULARITY AND SPECIFICITY

Question 50

How can D respond to complaint?

Answer 50

1) by motion or 2) by answer

Question 51

Responding by motions

Answer 51

Not pleadings, but requests for court order. Form - motion for more definite statement (rare); motion to strike

Question 52

Rule 12(b) defenses - can be raised either by motion or answer

Answer 52

1) lack of SMJ; 2) lack of PJ; 3) improper venue; 4) insufficiency of process; 5) insufficient service of process; 6) failure to state a claim; 7) failure to join indispensable party

Question 53

Which of the 12(b) defenses are waivable?

Answer 53

nos. 2,3,4,5 (lack of PJ, improper venue, insufficiency of process, insufficient service of process)

Question 54

What does waivable mean?

Answer 54

Waivable defenses must be put in the first rule 12 response (motion or answer or else they're waived)

Question 55

When is SMJ waived?

Answer 55

never. Can even raise it on appeal

Question 56

What is the answer?

Answer 56

it is a pleading, responding to the allegations in the complaint and raising affirmative defenses

Question 57

Timing of the answer

Answer 57

serve within 21 days after service of process, but if D made rule 12 motion, and it's denied, D must serve answer within 14 days after court rules on motion

Question 58

Ways to respond to allegations in complaint

Answer 58

admit, deny, state that D lacks sufficient information to admit or deny (acts as a denial but can't be used if info is public knowledge or in D's control). Failure to deny can constitute an admission on any matter except damages

Question 59

What is a counterclaim?

Answer 59

claim against an opposing party. In fed court it's part of D's answer

Question 60

Two types of counterclaim

Answer 60

1) compulsory, 2) permissive

Question 61

Elements/requirements of compulsory counterclaim

Answer 61

arises from same T/O as P's claim. Must be filed in the pending case or it's waived. Not compulsory if D filed suit before getting sued

Question 62

Elements/requirements of a permissive counterclaim

Answer 62

does not arise from same T/O as P's claim. May file it in answer or assert in separate case. If counterclaim is procedurally ok in fed court, than assess whether claim invokes SMJ. If no SMJ, then try sup jur

Question 63

Cross-claim

Answer 63

claim against a co-party. MUST arise from same T/O as underlying action. NEVER compulsory. Does need to meet SMJ or sup jur

Question 64

Right to amend

Answer 64

P: has right to amend within 21 days after D serves rule 12 response (motion or answer). D: has right to amend ONCE within 21 days of serving his answer

Question 65

If no right to amend, when can parties amend?

Answer 65

If they seek leave of court, and it will be granted if justice so requires (look at delay, prejudice, futility of amendment)

Question 66

What is variance?

Answer 66

where evidence at trial does not match what was pleaded

Question 67

Amendment after the statute of limitations has run (i.e., "relation back")

Answer 67

Relation back means you treat the amended pleading as though it was filed when original was filed so it can avoid a SOL problem. WRT joining a new claim: Amended pleadings relate back if they concern the same transaction, conduct, or occurrence. WRT changing a defendant after statute has run: relates back if 1) concerns same t/c/o as original; 2) new party knew of this case within 120 days of its filing; AND 3) also knew that, but for mistake, that new party would have been named originally (i.e., this applies when P sued wrong D first, but right D knew about it)

Question 68

Required discovery disclosures

Answer 68

initial disclosures - ID persons and other info likely to have discoverable info, ID experts who may be used at trial, and any docs relating to them, pretrial info about evidence, docs, etc to be used at trial

Question 69

When can discovery tools be used?

Answer 69

after rule 26(f) conference unless court order or stipulation allows

Question 70

Which discovery tools can be used to get info from a non-party?

Answer 70

depositions, requests to produce. But must be subpoenaed or else not compelled to attend

Question 71

Availability of tool for physical or mental examination

Answer 71

only available for court order on showing that a party's or person's in party's control health is in actual controversy and good cause (i.e., need it and can't get it elsewhere)

Question 72

Duty to supplement discovery

Answer 72

after response if things change making response to required disclosure, interrogatory, request for production, or request for admission is incomplete or incorrect, you MUST supplement response

Question 73

Scope of discovery

Answer 73

anything relevant to a claim or defense ("calculated to lead to discovery of admissible evidence"). Cannot discover communications protected by privilege

Question 74

work product doctrine

Answer 74

material prepared in anticipation of litigation, generally protected from discovery UNLESS opposing party show's substantial need/not otherwise available. Also, work product that's mental impressions, opinions, conclusions and legal theories is ABSOLUTELY protected

Question 75

Remedy for partial violation of discovery

Answer 75

(answers some but objects to others). Step one: get an order compelling the party to answer the unanswered questions, plus costs (including atty's fees) of bringing the motion). Step 2: If violate court order, RAMBO sanctions, plus costs and could be held in contempt (except for refusal to submit to medical exam)

Question 76

Remedy for total violation

Answer 76

no need to get order to compel, go straight to RAMBO plus costs

Question 77

RAMBO sanctions

Answer 77

establishment order (establishes facts as true); strike pleadings of disobedient party (as to issues re discovery); disallow evidence from disobedient party (as to issues re discovery); dismiss plaintiff's case (if bad faith); enter default judgment against defendant (if bad faith)

Question 78

Who may be joined as co-parties?

Answer 78

When claims arise from same t/o and raise at least one common question. Then assess SMJ (diversity or FQ)

Question 79

Who is a necessary party for necessary joinder?

Answer 79

Meets any of 3 tests: 1) without the absentee (A), court cannot accord complete relief among existing parties