Civil Procedure LAST PUSH Flashcards
Personal Jurisdiction - Constitutional Step
does the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice
Personal Jurisdiction - Statutory Step
(1) present in forum state
(2) domicile in forum state
(3) express or implied consent to jurisdiction OR
(4) long arm statute
Constitutional Step Factors
(1) contacts
(2) relatedness
(3) fairness (only if specific PJ)
Personal Jurisdiction - Contacts
contacts must show that the defendant:
(a) purposely availed themself of the forum states laws; AND
(b) knew or reasonably should have anticipated that the activities in the forum made it foreseeable that theyd be halled into court there
Personal Jurisdiction - Relatedness
(a) is the claim related to the defendants contact with the forum, a court is more likely to find that claim is fair and reasonable OR
(b) is unrelated to the defendant’s contact, the court must have general PJ over defendant which requires defendant be at home
Personal Jurisdiction - Fairness (Only if Specific PJ)
(a) whether the forum is so gravely difficult and inconvenient that the Defendant is at severe disadvantage
(b) forum states legit interest in providing redress for its resident
(c) plaintiff’s interest in obtaining convienent and effective relief
(d) interstate judicial systems interest in efficiency and
(f) shared interests in furthering social policies
Substituted Service
(1) at the Defendants usual place of abode
(2) with someone of suitable age and discretion
(3) who resides there
Service on Business or Organization in the United States
(a) delivering to an officer or a managing or general agent a copy of the summons and complaint or
(b) using a method permitted by the state (i) where the federal court sits or (2) where service is to be made
Federal Question Well Plead Complaint
the plaintiff’s claim itself must arise under federal law
Two Limitations on Removal
two limits to removing a cased based on solely diversity of citizenship:
(1) the case should not be removed if any defendant is a citizen of the forum state
and
(2) case should not be removed more than one year after case was filed in state court
Steps for Supplemental Jurisdiction
must share a common nucleus of operative fact with the claim that stratifies SMJ
Clearly Substantive for Erie
(1) conflict (choice of law) rules
(2) elements of a claim or defense
(3) statute of limitations
(4) rules for tolling statutes of limitations
(5) standard for granting a new trial because the jurys damages award was excessive or inadequate
Factors in Determining Substantive v Procedural
(1) outcome determinative
(2) balance of interest
(3) avoid forum shopping
Where May Plaintiff Lay Venue
(a) all defendants reside
(b) substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located
Transfer of Venue - Transfer from Proper Venue
is the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and in the interest of justice
transferee court must apply the choice of law rules of the transferor court
Transfer of Venue - Transfer from Improper Venue
if the original district is improper, the court may transfer in the interest of justice or dismiss
transferee applies its own choice of law rules
Complaint must Contain
(a) a statement of grounds of subject matter jurisdiction
(b) short and plain statement of the claim
(c) a demand for relief sought
fraud, mistake or special damages requires particularity or specificity
Rule 12(E) Motion
for more definite statement - used when the complaint is so vague or ambiguous the defendant simply cannot respond
Rule 12(F) Motion
motion to strike - asks the court to remove redundant or immaterial things from a pleading
Rule 12(b) Defenses
waived if not put in the first motion or answer:
(a) lack of personal jurisdiction
(b) improper venue
(c) improper process
(d) improper service
Rule 12(b) Defenses Which Arent Waived
(a) failure to state a claim
(b) failure to join indispensable party
(c) lack of subject matter jurisdiction
Amending to Change Defendant
(a) the amendment concerns the same conduct, transaction, or occurrence as the original
(b) defendant had such knowledge of the case such that they will avoid prejudice
(c) defendant knew or should have know that, but for a mistake, they would have been name originally
Amending to Join Claim
relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleading
Rule 11 Signature
certifies that to the best of their knowledge and belief, after reasonable inquiry
(1) the paper is not for an improper purpose
(2) legal contentions are warranted by law or a nonfrivolous argument for a change of law
(3) factual contentions and denials have evidentiary support or are likely to after further investigation
Claims by Multiple Plaintiffs Against Multiple Defendants
(1) arise from the same transaction or occurrence and
(2) raise at least one common question of law or fact
When Absentee is Necessary or Required
(1) without the absentee, the court cannot accord complete relief among the existing parties
(2) the absentees interests may be harmed if not joined or
(3) the absentee claims an interest that subjects a party to a risk of multiple obligations
When is Absentee Joinder Feasible
feasible if:
(1) there is personal jurisdiction over the defendant and
(2) there will be federal SMJ over the claim by or against the absentee
When Absentee Joinder Is NOT Feasible
court must determine whether to proceed without:
(1) is there an alternative forum available
(2) what is the actual likelihood of harm to the absentee and
(3) can the court shape the relief to avoid that harm to the absentee
Compulsory Counterclaim
one that arises from the same transaction or occurrence as the Plaintiff’s claim
Permissive Counterclaim
one that does not arise from the same transaction or occurrence as the Plaintiff’s claim - party is not required to file and can sue on the claim in a sperate case
Crossclaim
claim against a coparty arising from the same transaction or occurrence as the underlying action
Process for Impleading Third Party Defendant into Case
defendant must (1) file a third party complaint naming the TPD and
(2) have that complaint formally served
Intervention of Right
if the absentees interest may be harmed if they are not joined, and that interest is not adeuqately represented by the current parties, intervention is as of right
Permissive Intervention
at least one common question of law or fact, intervention would be permissive and discretionary
Class Action Requirements
(1) numerosity
(2) commonality
(3) typicality
(4) adequacy
Prejudice Class Action
class treatment is necessary to avoid harm either to class members or to the non class party
Injunctive Class Action
seeks injunction or declaratory relief because the defendant treated the class members alike
Common Question Class Action
(1) common questions must predominate over individual questions and
(2) the class action is superior method to handle the dispute
Merits Sanctions
(a) establishment order
(b) strike pleadings of the disobedient party
(c) disallow evidence from that party
(d) dismiss plaintiff’s case
(e) enter default judgment against defendant
Motion to Set Aside Default or Default Judgment
(1) good cause and
(2) a viable defense
Reasons a New Trial Would Be Granted
(1) judge gave erroneous jury instructions
(2) new evidence that could not have been discovered before
(3) judgment is against weight of evidence
(4) misconduct by juror, party, or witness
(5) damages are inadequate or excessive
Interlocutory Appeals Act
allows appeal of non trial order if:
(1) the district judge certifies that it involves a controlling issue of law,
(2) as to which there is a substantial ground for indifference and
(3) Court of Appeals agrees to hear it
Collateral Order Doctrine
appellate court has discretion to hear an appeal on an issue if that issue:
(1) is distinct from the merits of the case
(2) involves an important legal question and
(3) is essentially reviewable if parties await final judgment
Review of Questions of Law
court of appeals uses a de novo standard
Review of Questions of Fact in Bench Trial
court of appeals will affirm unless findings are clearly erroneous
Review of Questions of Fact in Jury Trial
court of appeals will affirm unless reasonable people could not have made that finding
Review of Discretionary Matters
court of appeals will affirm unless the DCJ abused their discretion
Requirements for Claim Preclusion
(1) same claimant suing same defendant
(2) valid final judgment on the merits
(3) case one and two are the same claim
Requirements for Issue Preclusion
(1) same issue actually litigated and determined in case 1
(2) issue was essential to judgment in case 1
(3) used against party or in privity
(4) used by someone who was party in case or in privity
Nonmutual Defensive Issue Preclusion
person using was not a party to case one and was Defendant in case two
Nonmutual Offensive Claim Preclusion
person using claim preclusion was not a party to case one and is the plaintiff in case two
