Civil Procedure (Federal) Flashcards
FCP: What are the big questions to resolve about the right court?
- Is there PJ
- Is there SMJ
- Are we in the correct venue?
FCP: How do you conclude the court has personal jurisdiction?
- Must satisfy state statute and constitution. CA statute reaches to the extent of the constitutional requirement.
- Constitution requires that D have such minimum contacts with a jurisdiction to show that he purposefully availed himself of the state, suits were foreseeable, and suit is fair
Federal PJ - What is specific jurisdiction? How about general jurisdiction
S – claim arises from D’s contact with the forum
G – D is at home in the forum. Human is always at home where domiciled. Corp is at home where it is incorporated and where it has its PPB
Federal PJ - How do courts assess fairness?
- burden on D and witnesses
- state’s interest (e.g., if P is a citizen)
- P’s interest
FCP - Does D have a right to notice? How?
Yes, through service of process
FCP - What’s required for service of process?
- Summons
2. Copy of the Complaint
FCP - Who can serve process?
Any non-party who is at least 18
FCP - When must you serve process?
No more than 90 days after filing the complaint
FCP - What are four permissible ways to serve process?
Personal // Substituted // On D’s Agent // Any permissible State method (e.g., CA by mail or publication)
FCP - how serve process on a corporation?
- Officer // managing agent // general agent
2. state law methods
FCP - how serve process in a foreign country?
- Method permitted under int’l agmt
- permitted US methods
- permitted by foreign country’s law
FCP - can you waive formal service of process?
Yes, P can mail the D a notice and request to waive formal service of process.
FCP - what are the requirements for service of litigation documents other than process?
No summons necessary and don’t typically require the same formalities
FCP - state general rule of subject matter jurisdiction
A federal only has the power to hear cases over which it has appropriate constitutional authority. In general, a court must have authority because a case meets the diversity requirements or raises a political question
FCP - how does a case meet requirements for diversity jurisdiction?
- Appropriate litigants: (i) every P must be from a different state from every D or (ii) citizen of US state and citizen of foreign country
- Amount in controversy exceeds $75K. (good faith claims are sufficient)
FCP - where is a natural person a citizen of for purposes of SMJ?
Where you are domiciled, which = (i) present + (ii) intent to stay. Only analyze when case is filed.
FCP - where is a corp domiciled for purposes of SMJ?
- Every state where incorporated
2. State where it has its PPB
FCP - what is requirement for federal question jurisdiction?
Only need to show that P has a “well pleaded complaint” under which it is attempting to enforce a right granted under federal law
FCP - When can D attempt to remove a case?
No later than 30 days after service of process. This period begins anew for each D when he is served.
FCP - Do you need all Ds to remove?
Yes
FCP - Can P remove?
No
FCP - What is removal?
When original case is filed in state court and D wants to “remove” the case to federal court
FCP - What jurisdiction is required to grant a notice of remove?
Any case that meets the requirements for Diversity or FQ jurisdiction
FCP - is there a time limit on filing a notice of removal?
Yes, in a diversity jurisdiction case, the removal cannot occur more than one year after the case was filed in state court
FCP - what federal court will the case be removed to?
Federal district embracing the state court where the case was filed
FCP - what are the three procedural requirements to remove a case?
- File a notice of removal in FEDERAL court stating grounds
- Promptly serve a copy of the notice of removal
- File a copy of the notice of removal in STATE court
FCP - When should federal court remand a case to state court?
When removal was improper
FCP - What are timing requirements for a motion to remand?
- No time limit if there was not SMJ
2. Otherwise, within 30 days after filing of notice of removal
FCP - What should you always analyze if a case is in federal court, and a new related claim raised in the case doesn’t meet the SMJ requirements?
Supplemental jurisdiction. Always bring up!
FCP - What is required for supplemental jurisdiction?
New claim must have a common nucleus of operative fact with the original claim. Always will be if it arises out of the same T/O
FCP - Is there a limit on P with respect to supplemental jurisdiction?
Yes. In a diversity action, P cannot invoke supplemental jurisdiction
FCP - Can court decline to grant supplemental jurisdiction?
Yes, court may decline in its discretion if the federal claims were dismissed early in a proceeding
FCP - What law must a court apply in a case arising under diversity jurisdiction?
Court will apply the Erie Doctrine:
- Fed law on point that conflict with state? Apply Fed
- If not, apply state law if the issue in the case is substantive: (i) element of claim/def, (ii) SOL // tolling SOL (iii) choice/conflict of law
- If no fed law on point, and issue is not one of those substantive issues, court figure out if substantive by balancing (i) would applying state affect outcome, (ii) does state or fed have strong interest? (iii) will parties forum shop to federal court if you ignore federal law?
FCP - What is the appropriate forum?
Any venue where all Ds reside or where a substantial part of the claim arose
FCP - where do Ds reside for purposes of determining venue?
- Human resides where he is domiciled
- Biz resides in all jurisdictions where it is subject to PJ
FCP - When can court transfer a case?
- If original district was PROPER, original court can order transfer based on convenience of the parties and interests of justice
- If original district was IMPROPER, original court can transfer in the interests of justice OR dismiss
FCP - What is forum non conveniens?
Transfer is impossible because appropriate court is in a different judicial system. Court can either stay or dismiss the claim.
FCP - What must be in complaint?
- grounds for SMJ
- statement of claim. (state with particularity if fraud, mistake, or special damages)
- demand for relief sought
FCP - What are two basic responses to a complaint?
Answer // Motions
FCP - What defenses do you waive if you don’t raise in your Answer or first motion practice?
- Lack of PJ
- Improper venue
- Improper process
- Improper service of process
FCP - What are the seven common motions under Rule 12(b)
- Lack of PJ
- Lack of SMJ
- Improper venue
- Improper process
- Improper service of process
- Failure to state a claim
- Failure to join indispensable party
FCP - What are the three possible responses in an Answer with respect to each claim?
- Admit
- Deny
- Lack sufficient info to admit or deny (effect = denial)
FCP - Can Answer raise affirmative defenses?
Yes
FCP - When do you have to file Answer and/or original Motions?
No later than 21 days after service of process
FCP - What are the two motions of “form”?
- motion to strike
2. motion for more definite statement
FCP - Does P have a right to amend complaint? Timing?
Yes, once. No later than 21 days after D serves Motion or Answer
FCP - Does D have a right to amend? Timing?
Yes, once. No later than 21 days after serving Answer.
FCP - Can parties amend other than by right?
yes, with court’s permission. court will consider whether an amendment would cause delay, prejudice or be futile.
FCP - Are amended pleadings barred if the SOL has run?
Yes, unless the claim “relates back”. New claim relates back if it and the original claim concern the same T/O.
FCP - What is Rule 11?
Each time a lawyer presents documents, she certifies to the best of her knowledge after reasonable inquiry that:
- Paper is not for improper purpose
- Legal contentions are warranted by law
- Factual contentions / denials have evidentiary support (or are likely to)
FCP - What are consequences of a Rule 11 violation?
Sanctions will be levied against the party, the attorney, or the firm that violated.
FCP - What is the procedure for asserting a violation of Rule 11?
Injured party serves an offending party with notice re: violation. Offending party then has 21 days to cure. If not cured, injured party files the motion.
FCP - What claims can P join to a case?
Any additional claim - even if not related to the original claim
FCP - Are you permitted to join claims that involve other Ds and Ps?
Yes, both P and D may join claims involving other Ds/Ps that arise out of the same T/O and raise at least one common question.
FCP - What makes someone a necessary and indispensable party?
- Without Absentee, court cannot accord complete relief among existing parties
- A’s interest may be harmed if not joined
- A claims an interest that subject a party to a risk of multiple obligations
- Joinder must be feasible (court has PJ and joinder won’t defeat SMJ)
FCP - What is a counter claim?
D’s claim against an opposing party. P must respond within 21 days of service of a counter claim.
FCP -What is a compulsory counterclaim?
Arises from the same T/O as D’s claim. Failure to file results in a waiver.
FCP - What is a permissive counterclaim?
Does not arise out of same T/O as D’s claim. D can elect not to file a counter claim and instead file a separate suit later.
FCP - What do you need to show for SMJ in a counterclaim?
Need FQ or diversity jurisdiction. If you don’t have, courts will analyze whether the claim can be joined under supplemental jurisdiction.
FCP - What is a cross claim?
Claim by one D against another D
FCP - What is an impleader? What’s required for it?
D joins a third party defendant. D may only do this to shift to the TPD the liability that D would owe to the P. (Insurance provider is common impleader TPD)
FCP - Is PJ required over a TPD in an impleader?
Yes
FCP - What is the required timing for an impleader?
D has a right to implead a party within 14 days of serving his answer. Following that, the court has discretion.
FCP - If a TPD is impled, can the P file a claim against him?
Yes, if it arises out of the same T/O
FCP - What is an intervention? What are the two types?
A non party brings himself into a case.
- By Right – intervenor’s interest might be harmed if not adequately repped now.
- Permissive – Intervenor’s claim or defense and the pending case have at least one common question.
FCP - What is the requirement for jurisdiction with an intervenor?
Need SMJ and, if none, need Supp J
FCP - What are four Class Action Requirements?
- Numerosity
- Commonality
- Typicality (of Rep’s claim)
- Representative adequate
FCP - What are three types of Class Actions? Which One matters most?
- Prejudice
- Injunction
- Damages!! Common questions predominate over unique questions, and the class action is the superior way to resolve the claims.
FCP - What does court approve in a class action?
- Certify the class
- Select class counsel
- Approve Settlement
FCP - What are the initial required disclosures, and when are they due?
- Due Within 14 days of Rule 26(f) conference
1. Identities of persons with discoverable info who may support your case
2. Docs and tangible things you may use
3. Computation of relief and docs/ESI supporting it
4. D must disclose any insurance coverage
FCP - What is required of an expert witness?
- Identity
- Written report
- his opinions
- basis for opin
- facts used to form opinions
- qualifications
- how much paid
FCP - What is required as pre-trial disclosure?
No later than 30 days before trial, must give detailed info about trial evidence, including witnesses and depositions and things/docs/ESI to be produced
FCP - What are limits on depositions?
- No more than 10
- Can’t depose person more than once without court order
- Deponent isn’t required to travel more than 100 miles
FCP - Can you depose a non-party?
Yes, but you should subpoena them
FCP - Can you provide an interrogatory to a non-party?
Never
FCP - How long does party have to respond to an interrogatory? Do they have to do anything?
30 days. Yes, need to make reasonable attempt to answer.
FCP - How many questions are permitted / interrog?
25
FCP - What is required to take a medical exam?
Need court order to show health is in controversy and good cause
FCP - Can you send a Request for Admission to a non-party? W
No
FCP - What is duty to supplement?
You are required to supplement your response to any required disclosure, interrog, request for production or request for admission if any info therein becomes incorrect or incomplete
FCP - When is work product protected against discovery?
Any material put together in preparation for trial is protected, unless the requesting party demonstrates that he has a substantial need for it and it is not otherwise discoverable
FCP - In what circumstances do you seek a protective order with respect to discovery?
When discovery request subjects you to annoyance, embarrassment, undue burden, or expense. Must also show you met or tried to meet and confer with the other party to try and resolve issue
FCP - Under what circumstances can you seek sanctions for violations with respect to discovery?
- must show met or tried to meet and confer
- if party responded, but not fully, you move for order to compel the party to comply fully
- if party DIDN’T respond, then you can get Merits Sanctions
FCP - What do you need in order to get a temporary restraining order?
Request must state its terms specifically, describe in detail what the other party must do or refrain from doing and why the specific injury would cause irreparable harm
FCP -What is D’s response to a TRO?
Request an Order to Dissolve
FCP - What are the four things you must show to get a preliminary injunction?
I Mean Business Pal:
- irreparable harm
- likely to win on the merits
- balance of hardship favors you
- in public interest
FCP - When can P dismiss a case voluntarily?
At any time, and court has discretion on how to rule
FCP - Who enters a Default?
Clerk of court. P must request it and demonstrate that D failed to make a timely response
FCP - Who enters Default Judgment?
Clerk of court, if –
- D made no response
- Sum certain amount in controversy
- P gives affidavit of amount owed
- D isn’t a minor / incompetent
FCP - In what circumstances does D move to set aside default or default judgment?
If he has good cause and viable defense
FCP - What is the standard for reviewing a 12(b)(6) motion?
Court ignores legal conclusions, assumes all facts are true, and asks whether they state a plausible claim.
FCP - What is the standard for summary judgment motion? Timing?
- Asserting party must demonstrate that there is no genuine dispute as to a material fact and that he is entitled to judgment as a matter of law.
- Court may review evidence, if it is firsthand knowledge and made under oath
- No later than 30 days after the end of discovery
FCP - What is Rule 26(f) conference?
At least 21 days before scheduling order, parties meet and confer re: production of initial disclosures, claims, defenses, settlement, and discoverable information.
FCP - What gives rise to the right for a jury trial? Do you have to request it? timing?
- Seventh Amendment preserves the right to a jury trial in a federal civil action at LAW (but not equity).
- Yes, must demand in writing
- 14 days after service of the last pleading addressing a jury-triable issue (if you don’t, you waive jury trial)
FCP - How can you challenge jury members during voir dire?
- For Cause (unlimited)
2. Peremptory (only 3), and must be race/gender neutral
FCP - What is minimum / maximum number of jurors for a civil action?
6 / 12
FCP - What is a motion for judgment as a matter of law? When do you assert?
- At Trial
- It is like summary judgment, and asserts that reasonable people could not differ as to the judgment
FCP - What is a renewed motion for judgment as a matter of law? When do you assert?
- After trial
- Like summary judgment and asserts that reasonable people could not differ as to the judgment
FCP - What are the six instances where a party has the right to appeal an interlocutory order?
- prelim or perm injunctions
- Under Interlocutory Appeals Act, where dist judge certifies that case involves controlling issue of law, where there is difference of opinion, and appellate court can thus review
- Collateral Order - issue is distinct from case merits, involves an important issue, and would essentially be non-reviewable otherwise
- multiple claims / multiple parties
- Class action
- extraordinary writ
FCP - what is standard of review for questions of law?
de novo
FCP - what is standard of review for questions of fact in a jury trial?
affirm unless reasonable people could not have made the finding
FCP - what is standard of review for questions of fact in a bench trial?
affirm unless clearly erroneous
FCP - what is standard of review for discretionary matters?
affirm unless ruling was abuse of discretion
FCP - when is an a claim subject to res judicata?
- When claim was brought by the same plaintiff against the same defendant. (that is, same parties in the same configuration.)
- case ended in a valid final judgment on the merits
- case 1 and case 2 assert the same claim
FCP - when is an issue subject to issue preclusion?
- valid, final judgment on the merits
- actually litigated and determined the issue
- issue was essential to the judgment
- asserted AGAINST someone who was in case 1 or was in privity with that person
- asserted BY party in case 1 or nonmutual D or nonmutual P (i.e., wasn’t in case but had an opportunity and interest to litigate the issue)
FCP - When must party receiving request for admission respond?
Within 30 days after receiving it
