CivPro Flashcards
Specific jxn fairness factors
For specific only: fairness factors: 1) Consider interests of P in getting relief; 2) forum state in providing redress; and 3) D in not being gravely inconvenienced
When Fed Ct may not exercise supp jxn
1) if fed claim dismissed before trial (not on merits)
2) raise novel state issue
3) or state law issues predominate
When does Erie apply
When court had diversity jxn or claims attached under supp jxn
What is substantive law under Erie
Law that determines outcomes:
SOL, choice of law, elements of claim or defense, remittitur, additur, notice of claim, issue preclusion
For case based solely on diversity, when is removal allowed?
Allowed only if no D is a citizen of forum state where suit filed
P’s choice of forum (venue) is proper in any federal district where…
Any D resides provided that all Ds are located in the same state OR where substantial part of claim arose OR substantial part of property that is the subject of the action is.
If above unavailable, any district where any D is subject to PJ
Consent or waiver by failing to object also creates proper venue
Can only transfer to another district…
(1) Where case could have been brought in the first place (SMJ exists, PJ exists over Ds, venue is proper)
(2) or if all parties agree
What is forum non conveniens?
D may move to dismiss or stay under FNC (rather than transfer venue) if original venue is inconvenient + adequate alternative forum with proper jxn exists
Inconvenience Factors: Moving party shows 1) convenience of parties and witnesses; 2) ease and access to evidence; 3) calendar congestion etc.
Venue: transfer according to Forum selection clause unless
Extraordinary circumstances re: 1) what law applies; 2) what community should be burdened in jury desire; 3) keep in local court
What must be in complaint?
Basis of SMJ, claims, relief
What requires heightened pleading
Fraud, mistake, special damages, or conditions precedent not being satisfied
Compulsory counterclaim
If D’s claim arise from STO as P, it must be pleaded or barred
Permissive counterclaim
Any other claim D has may be asserted as long as it has federal jxn
Crossclaim
D’s answer may include a crossclaim against a coparty if claim arises out of STO as II’s claim
Relation back
Amended pleading with new claims or defenses relates back to original pleading date, only if new claim/defense arose from STO as original
New party can be added to complaint even though SOL has run to him only if…
1) The claim arose from same STO alleged in original claim
2) New pt had notice of the claim w/in time limit for service (90 days from filing);
3) New pt knew or should have known w/in 90 of filing that, but for a mistake concerning the identity of the proper party, he would have been included in the original action
Waivable affirmative defenses
Contributory negligence, claim preclusion, SOF, fraud, SOL, self-defense
Waivable defenses
3 Ps and V
Lack of PJ
Insufficient Process
Insufficient Service of Process
Improper Venue
If evidentiary material presented in 12b6 failure to state a claim MTD
Treat as motion for summary judgment
Compulsory joinder
An indispensable party who is subject to service of process and whose joinder will not deprive the court of SMJ must be joined as a party if 1) court cannot grant complete relief to existing parties without that party; 2) or his interests may be impaired if the case proceeds w/o joining him
Compulsory joinder for not subject to service of process or will deprive SMJ
Court will consider whether to proceed in equity
1) Is there an alternative forum available
2) Likelihood of harm to absentee
3) Can court shape relief to avoid harm to absentee
Intervention as a right
Indispensable party must be joined if either:
a) absentee’s interest will be harmed if not joined and no existing party will adequately represent that interest, or
b) Absentee has an unconditional statutory right
Permissive intervention
Allowed in court’s discretion if either:
a) absentee has a claim or defense that shares a common question of law with the underlying action, or
b) absentee has a conditional statutory right, or
c) absentee is a officer or agency and an existing claim or defense relates to the officer/agency or a statute, regulations, etc.
Jurisdiction for intervention
In diversity cases, intervener must establish independent SMJ
Supplemental jxn will not cover diversity intervention
Permissive joinder
Parties may join plaintiffs or defendants only if 1) a claim is made by each P and against each D arising out out of STO; and 2) there is a question of fact or law common to all parties
Class actions are proper if CANT P/ER/CQ
Commonality: Q of law or fact in common to class
Adequacy of representation: Class rep will fairly and adequately represent class (interests align)
Numerosity: too many class members for practicable joinder
Typicality: Representative’s claims/defenses typical of those of the class
PLUS ONE
i. Prejudice: Separate actions would create a risk of inconsistent results or impair interests of unnamed parties
ii. Equitable relief: Injunctive or declaratory relief is appropriate for the class as a whole
iii. Common q predominates: Common Q of law or fact predominate over individual issues, and a class action is superior to alternative methods of adjudication. This requires notice to all members and option to opt out.
iv. Class actions require PJ over each of the D names in the action. No requirement for Ps
Class Actions Fair Act: SMJ is established
i. if minimum diversity (any named class member diverse from any D)
ii. +aggregate AIC > $5M+
iii. 100+members in proposed class
EXCEPTIONS: No federal court jxn under CAFA if primary Ds are states, state officials, govt’ entities OR action relates to affairs of a corporation and is based on laws of state of incorporation OR action solely relates to federal securities laws.
Claim preclusion/res judicata
prevents re-litigation of any part of a cause of action:
1. between same parties and privies
2. same claim (STO)
3. FJ on merits
4. Has been litigated or could have been raised
Issue preclusion/CE
prevents re-litigation of and asserts the effect of a particular issue:
1. asserted against same party or in privity
2. Same issue
3. Issue essential to J
4. FJ on merits
5. Actually litigated
Offensive IP
New P not party to first suit can use IP based on fairness factors.
Fair to allow if:
1. P had no opportunity to join first suit
2. D had strong incentive to litigate first suit
3. No inconsistent findings
4. Procedural opportunities not available to P in first suit
Final judgment adjudicated on merits unless based on
1) lack of jxn
2) improper venue
3) failure to join with prejudice
Dismissal w prejudice unless
1) lack of jxn
2) improper venue
3) failure to join
When is summary judgment granted?
If from pleadings, affidavits, and discovery materials on file viewed in light most favorable to NMP, the moving party shows that there is no genuine dispute of material fact
Basis for motion for relief from judgment
Mistake, fraud, misconduct, newly discovered evidence
Basis for motion to reconsider
New evidence, change in law, clear error of law or fact, or to prevent injustice
Basis for motion for new trial
Most of other things except mistake, fraud, misconduct
Factors for preliminary injunction
Irreparable injury, likelihood to win, balance of hardships, public interest
