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Bar Exam > Civil Procedure Rules > Flashcards

Civil Procedure Rules Flashcards

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1
Q

Personal Jurisdiction Analysis

A
  • Exercise of PJ must fall into a state statute
  • The Exercise of PJ must satisfy the Constitution
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2
Q

PJ Constitutional Test (IS)

A

Whether the D has sufficient minimum contacts with the forum that it would not be a miscarriage of justice
- Contact
- Relatedness
- Fairness

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3
Q

Contact Factors

A
  • Purposeful Availment
  • Foreseeability
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4
Q

Relatedness (if related, specific; If not, general)

A
  • P’s claim must arise out of or relate to D’s contact w/ the forum
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5
Q

Fairness Factors (Specific PJ)

A
  • Burden on the defendant and witnesses
  • State’s interest
  • Plaintiff’s Interest
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6
Q

Notice Documents for Proper Process

A
  • Summons
  • Copy of Complaint
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7
Q

Who Can Serve Process

A
  • Any person who is at least 18 years old
  • Someone not a party to the action
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8
Q

When must process be served?

A
  • Must take place within 90 days of the filing of the complaint
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9
Q

Substituted Service Individual

A
  • Can only be done at the defendant’s usual place of residence
  • With someone of suitable age and discretion who resides here
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10
Q

Service on a Business

A
  • Delivering to an officer or a managing/general agent
  • Using a method permitted by the state
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11
Q

Waiver

A
  • Service can be waived within 30 days of receipt
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12
Q

Federal Question Subject Matters

A
  • Patent Infringement
  • Bankruptcy
  • Some federal securities
  • Antitrust claims
  • Any claim arising under federal law
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13
Q

Diversity of Citizenship

A
  • Case is between citizens of different U.S. States or One citizen of a U.S. State and citizen of a foreign country and the amount in controversy exceeds $75,000
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14
Q

Complete Diversity

A

There must be complete diversity on both sides of the V, all defendants must be from a different state than all plaintiffs

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15
Q

Domicile

A
  • Used to determine citizenship of a natural person
  • Shown by physical presence in a state plus intent to stay
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16
Q

Citizenship of Corporation

A
  • Any state that they are incorporated
  • Where there principal place of business is located
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17
Q

Principal Place of Business (PPB)

A
  • Where the nerve center of the company is. The CEO and other top executives do business
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18
Q

Citizenship of LLC

A
  • Any state where an LLC’s general and limited partners are located
  • Unincorporated Association take on the citizenship of all its members.
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19
Q

Citizenship of Decedents, Minors, and Incomptents

A

Even though sued through a representative, citizenship of the decedent or minor is used.

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20
Q

Citizenship in Class Actions

A
  • Named class members are used
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21
Q

Aggregation Claims

A
  • Any single plaintiff may aggregate all of their claims against a single defendant. They do not need to be related
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22
Q

Equitable Relief to Satisfy Amount IC (Two Views)

A
  • One test looks at P’s viewpoint, if injunction granted, does relief requested have a value of mare than 75k to P
  • Other looks at D, will it hurt more than 75k
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23
Q

Excluded Cases

A
  • Divorce
  • Alimony
  • Child Custody
  • Probate
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24
Q

Well-Pleaded Complaint

A
  • Plaintiff’s claim must arise under federal law
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25
Q

How to Remove a Case

A
  • File notice of removal in federal court stating grounds for SMJ
  • File a copy with the adverse party and in state court
  • Must remove no later than 30 days after service
  • Plaintiff can never remove
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26
Q

Removal Rules

A
  • Case is removed to the same district court that the state court where it was filed sits.
  • If improper, federal court can remand.
  • SMJ must exist
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27
Q

Who must join in the removal?

A
  • All defendants who have been served with process
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28
Q

Limits to removal for diversity jurisdiction

A
  • The case should not be removed if any D is a citizen of the forum state (in-state defendant rule)
  • The case should not be removed more than one year after it was filed in state court
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29
Q

Challenging Removal

A
  • If not based on lack of SMJ, must do so within 30 days
  • Based on SMJ, will be able to at any time
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30
Q

Steps for analyzing whether a additional claim can be brought in Federal Court?

A

Step 1: Check for Diversity or FQ jurisdiction (no need for supplemental)

Step 2: Check for Supplemental Jurisdiction

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31
Q

Steps to follow for Supplemental Jurisdiction

A
  • Assess whether the claim to be joined satisfies the common nuclear test
  • If so, ask whether it is FQ or Diversity
  • If the original case is FQ then supp. juris is good
  • If not apply plaintiff limitation for Diversity Cases
  • Court can still decide to decline if complex state law issues
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32
Q

Common Nucleus Test

A
  • Claim for Supplemental Jurisdiction must share a common nucleus of operative fact. Broader than a claim arising from same t/o.
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33
Q

Limitation on Supplemental Juris. + Exception

A
  • Claims by plaintiffs cannot involve Supp. Juris

EXCEPTION: When there are multiple plaintiffs and the claim by one arises from the same t/o and does not meet amount IC

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34
Q

Erie Test

A
  • Step 1: Is there some federal law that directly conflicts with state law? If so, apply federal law
  • Step 2: If there is no federal law on point, judge must apply state law to substantive issues
  • Step 3: If no federal law and not clearly substantive, court must determine if substantive and if so apply state law
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35
Q

Substantive Determination Factors

A
  • Would applying or ignoring the state rule effect the outcome of the case?
  • Does either the federal or state system have strong interest in their rule being applied?
  • If federal court ignores state law will it encourage forum shopping
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36
Q

Five automatic state law substantive issues

A
  • Conflict of law rules;
  • Elements of a claim or defense;
  • Statutes of Limitation
  • Rules for tolling statutes of limitations; and
  • The standard for granting a new trial because the jury award was excessive or inadequate
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37
Q

Federal Common Law

A
  • International Relations
  • Admiralty
  • Disputes between states
  • The right to sue a federal officer for violating one’s federal rights
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38
Q

Venue is Proper

A
  • Any district where all defendants reside in that State
  • Any district where a substantial part of the claim arose or a substantial part of the property is located
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39
Q

Venue Nuances

A
  • Plaintiff doesn’t matter
  • Venue applies in FQ or Diversity but not removal
  • If D resides outside of the US, venue is proper in any federal district court, but if another D is US resident, venue must be proper as to them
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40
Q

Where D resides for Venue

A
  • A human resides in the federal district where they are domiciled
  • A business. resides in all districts where it is subject to PJ for the case
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41
Q

Public Factors to Consider before Transfer

A
  • What law applies
  • What community should be burdened with jury service
  • The desire to keep a local controversy in a local court
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41
Q

Transfer of Venue

A
  • Allowed but must be to another federal court and must be a proper venue and have PJ over D w/o waiver
  • Court can order based on convenience of parties and witnesses and in interest of justice.
  • Burden on the person seeking transfer
  • Exception: court can transfer to any district is all parties consent and the court finds cause
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42
Q

Private Factors to Consider Before Transfer

A
  • Convenience based on where the D’s and Evidence are found
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43
Q

Effect of Transfer on Choice of Law

A

When a diversity case is filed in proper venue but court orders transfer, the transferee court must apply the choice of law rules of the transferor court

44
Q

Forum Selection Clause

A
  • Provision where the party agree the dispute will be litigated in a specific place
  • Federal Law enforces if they are not unreasonable and it governs over state law
  • When FSC is valid, only public interest factors are considered for the transfer
  • When transferred based on FSC, transferee court will apply its own choice of law rules
45
Q

Improper Venue

A
  • Court may either dismiss or transfer in the interest of justice
  • Transferee court applies own choice of law rules
46
Q

Forum Non Conveniens

A
  • When best place for case is in a different judicial system.
  • Court will either stay or dismiss the case to let P sue in another court
  • Other court must be adequate
47
Q

Complaint (Must contain:)

A
  • Commences an action
  • MC: (1) a statement of grounds for SMJ, (2) a short and plain statement of the claim, (3) a demand for relief sought
48
Q

Details Required in Complaint

A
  • Sufficient facts to support a plausible claim
49
Q

Special Pleadings must be pleaded with more detail

A
  • Fraud
  • Mistake
  • Special
50
Q

12B Motions

A
  1. Lack of SMJ
  2. Lack of PJ (waivable)
  3. Improper Venue (waivable)
  4. Insufficiency of Process (waivable)
    5.. Insufficiency of Service of Process (waivable)
  5. Failure to state a claim upon which relief can be granted
  6. Failure to join an indispensable party
51
Q

Rule 12(e)

A

Motion for a more definitive statement

52
Q

Rule 12(f)

A

Motion to strike

53
Q

Defendant’s Response

A
  • Can respond by pre-answer motion or motion
  • Have 21 days from being served with process
54
Q

Rule 12 Motion Denied

A
  • D has 12 days to file answer
55
Q

Answer

A
  • Admit some or all allegations
  • Deny some or all allegations
  • State that you do not have sufficient information
  • Failure to respond is an admission
  • Raise affirmative defenses
56
Q

Right to Amend by Plaintiff

A
  • Right to amend once as of course no later than 21 days after the D serves their first rule 12 response
57
Q

Right to Amend by D

A
  • D has a right to amend the answer once as of course within 21 days of serving it
  • May include waivable rule 12(b) defenses and affirmative defenses
58
Q

Amendment after Right has Expired

A
  • Party can seek leave of court and the court will grant if justice so requires
59
Q

Relation Back after SOL has Run

A

An Amended please relates back if the pleading concerns the same conduct, transac, or occurrence. Treat as though it was filed originally.

60
Q

Amendment to Change a Defendant Factors

A
  • The amendment concerns the same conduct, t/o
  • the defendant had suck knowledge of the case that they will avoid prejudice; and
  • the defendant know or should have known that, but for a mistake, she would have been named originally
61
Q

Supplemental Pleadings

A
  • Set forth things that happened after pleading was filed
  • No right but must make a motion
62
Q

Rule 11 Signature Requirement

A
  • When a lawyer signs documents they certify that to the best of their knowledge and belief after reasonable inquiry:
  • the paper is not for an improper purpose
  • the legal contentions are warranted by law or a nonfrivolous argument for a law change, and
    the factual contentions have evidentiary support or are likely to after further investigation
63
Q

Sanctions

A
  • To deter a repeat of the conduct
  • Can be imposed against the party, lawyer, and lawyers firm
  • Court can issue on its own motion
64
Q

Types of sanctions

A
  • non-monetary
  • Monetary
65
Q

Safe Harbor Provisions

A
  • If party violates rule 11, the opposing party cannot immediately file a motion for sanctions. Party must file on the party to be sanctioned and give 21 days to fix the problem
66
Q

Claim Joinder by Plaintiff

A

Anyone asserting a claim may join any additional claim she has against that adverse party even if it is unrelated
- Must be SMJ over the claim

67
Q

Claims by Multiple Plaintiffs and Defendants

A
  • These claims must (1) arise from the same t/o and (2) raise at least one common question of law or fact
68
Q

Is an Absentee Necessary Factors

A
  • Without the absentee, the court cannot accord complete relief among the existing parties; or
  • the absentee’s interest may be harmed if she is not joined; or
  • the absentee claims an interest that subjects a party to a risk of multiple obligations
69
Q

Can the Absentee be Joined?

A
  • If there is PJ over the absentee
  • There will be federal SMJ over the claim or against the absentee
70
Q

What if the Absentee cannot be Joined (dismissal factors)

A
  • Is there an alternative forum available (maybe some state court)
  • What is the actual likelihood of harm to the absentee?; and
  • Can the court shape relief to avoid that harm to the absentee?
71
Q

Counterclaim

A
  • Part of the D’s answer
  • P must respond under rule 12 within 21 days of service of the counterclaim
  • Two types: compulsory or permissive
72
Q

Compulsory Counterclaim

A
  • One that arises from the same t/o as the P’s claim
  • Claim is waived if you do not bring it
73
Q

Permissive Counterclaim

A
  • One that does not arise from the same t/o
  • D can bring the claim or not
  • Must be counterclaim
74
Q

Crossclaims

A
  • Claim against a coparty
  • Must arise from the same t/o as the underlying action
75
Q

Impleader

A
  • Claim used to shift blame from the D to a third-party D the liability that the D will owe to the P.
  • Look for claims of indemnity or contribution
  • Claim is permissive
76
Q

Indemnity

A

Shifts liability completely (so the TPD must cover the full claim)

77
Q

Contribution

A

Shifts liability pro-rata (so the TPD must cover a pro-rata portion of the claim)

78
Q

Process for Impleading TPD into the Case

A

(1) must file a third-party complaint naming the TPD
(2) have that complaint formally served on the TPD.
- Right to implead within 14 days of serving the answer
- After that, court permission is needed
- TPD and P may assert claims against each other that arise out of the same T/O
- SMJ is required
- PJ can be if they were served in a district not more than 100 miles from the fed court that issued the summons

79
Q

Intervention

A
  • Nonparty absentee uses to bring themselves into the case.
  • Must be timely
80
Q

Intervention of right

A
  • If the absentee’s interest may be harmed and is not adequately represented by the current parties, intervention is a right
81
Q

Permissive Intervention

A
  • If the absentee’s claim has at least one common question of law or fact, intervention would be permissive and discretionary w/ court
  • Must have SMJ
82
Q

Interpleader

A

Permits a person/stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which, if any, has the valid claim to it.

83
Q

Class Actions Initial Requirements (need all 4)

A
  • Numerosity (too many class members for practicable joinder)
  • Commonality (there must be some issue in common to all class members)
  • Typicality (the class rep’s claims are typical of the claims of the class)
  • Representative Adequate (fairly and adequately represent the class_
84
Q

Types of Class Action

A
  • Type 1: Prejudice - Class treatment is necessary to avoid harm either to class members or the non-class party
  • Type 2 - Injunction or Dec. Relief - seeks an injunction or a declaratory judgment because the D treated the class members alike.
  • Type 3 - Common Q or Damages - (1) common questions must predominate over individual q’s, (2) the class action is a superior method to handle the dispute. Used for mass torts.
85
Q

How Courts Certify Classes

A
  • After cert, the court must define the class and the class claims, issues or defenses; and
  • appoint class counsel, who must fairly and adequately represent the interests of the class
86
Q

Notice

A
  • All potential class members must be provided notice usually by mail
  • Tells class members they can opt out, will be bound by the judgment if they don’t opt out, and can enter a separate appearance through counsel
87
Q

Class Action Fairness Act (“CAFA”)

A
  • Grants SMJ separate from diversity of citizenship jurisdiction. It lets a federal court hear a class action if: (1) there are at least 100 members; (2) any class member, not just the rep, is of diverse citizenship for any D; and (3) the aggregated claims of the class entered $6 million
88
Q

Initial Required Disclosures

A
  • Within 14 days of the rule 26(f) conference parties must disclose:
  • Information for persons with discoverable info, and the topics on which they have discoverable information, and who the party may use to support their claims or defenses
  • Document and tangible things that the party may use to support her claims or defenses in their custody or control
  • Insurance Coverage
  • Computation of Relief
89
Q

Penalty for Failure to Disclose Initial Things and EW

A
  • Party that fails to disclose cannot use the undisclosed material or the EW in the case unless substantially justified
90
Q

Expert Witness

A
  • Each party must identify EW’s who may provide testimony not consultants
  • Must disclose identity and written report including opinions, bases for opinions, facts used to form opinion, the qualifications, and how much they are being paid
91
Q

Required Pretrial Disclosures

A
  • No later than 30 days before trial, parties must give detailed info about trial evidence
  • identity of witnesses who will testify live or through depo
  • ESI
  • Other things that may be introduced at trial
92
Q

Deposition Rules

A
  • Max on 10
  • Can be party and non-party (need subpoena for non-party)
  • Testimony under oath
  • When serving on a corporation you just notice the info you need and they designate a rep
93
Q

Use of Depos at Trial

A
  • To impeach the D
  • For any purpose if the deponent is an adverse party; or
  • for any purpose if the deponent is unavailable at trial
94
Q

Interrogatories Rules

A
  • Can only be sent to parties
  • Max of 25
  • Must be answered within 30 days of service
  • Parties must answer based on info reasonably available
  • If answer is in business records, and parties have equal burden of finding, the responding party can allow the party to have access to the records
95
Q

Request to Produce

A
  • Asks a party to make available some document or information for review
  • Responding party may object but must respond in writing within 30 days
  • Only parties can be sent a request, non-parties would be subpoenaed
96
Q

Medical Exam

A
  • Court order is required to compel a party to a mental exam.
  • Requesting party must show that the person’s health is in controversy and good cause
  • Requesting party chooses professional to perform
  • Requesting party gets report, party for who the exam was taken can get report but will then need to open up personal medical records about issue
97
Q

Request for Admission

A
  • Written request that someone admit certain matters
  • Responding party must answer in 30 days admitting or denying
  • No answer will be deemed admission
98
Q

Signature Requirement for Discovery

A
  • Parties sign substantive answers under oath. Every signature by counsel certifies the request or response is warranted, not for an improper purpose, not unduly burdensome
99
Q

Scope of Dicovery

A
  • A party can discover anything relevant to a claim or defense and proportional to the needs of the case
100
Q

Objections to Scope

A
  • Privilege
  • Work Product Protection
101
Q

Work Product

A
  • Anything prepared in preparation of a trial
  • Does not need to be produced by a lawyer
  • Can be qualified or absolute
102
Q

Qualified Work Product

A
  • May be discovered if requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way
103
Q

Absolute Work Product

A
  • Opinion work product that can never be discoverable
104
Q

Protective Order

A
  • Party can seek if they believe request is undue burden
  • Must certify that she tried in good faith to resolve the issue without court involvement
105
Q

Protective Order Court Actions

A
  • Deny discovery
  • Limit discovery; or
  • Permit discovery on specified terms
106
Q

Preliminary Injunctive Relief

A
  • A court order that the D either do something or refrain from doing something
107
Q

Difference between Temporary Restraining Order and Preliminary Injunction

A

An order that maintains the status quo until trial is a preliminary injunction. Before getting a preliminary injunction, to maintain the status quo until the hearing on the PI you may seek a TRO

Bar Exam (11 decks)

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