CivPro Fa24 Final Flashcards
What is venue?
Proper court within a court system. The purpose is ensure the court is conveniently located and has a connection to the lawsuit or parties.
28 USC 1391
Applies only to cases filed in federal court (if removed from state ct, removed to fed ct embracing state ct).
(b) A civil action may be brought:
(1) in a judicial district in which any D resides, if all Ds residents of the state in which district is located
(2) a judicial district in which a substantial part of events or omissions giving rise to claim occurred, or where substantial part of property that is subject of action is
(3) if no district under 1 and 2, any district where D is subject to cts personal jx
(c) residency for venue
(1) individuals (natural citizens and lawful perm. residents) reside in districts where they are domiciled
(2) an entity resides if D–> in any judicial district in which D is subject to cts pjx; if P–> only in district it has PPB
(d) residency of corps in states with multiple districts–> residents of any district in which its contacts would be sufficient to subject it to pjx if district was separate state; or district where most significant contacts
Consent/waiver
parties may consent to venue (and pjx) pre-litigation or during litigation, usually by FSC
Specialized venue statutes
details venue in certain types of cases (copyright and patent, against fed gov’t, employment discrimination)
28 USC 1406
Case filed in a district court that is an improper venue shall be dismissed, or in the interest of justice, transferred to any proper district in which it could have been brought
if improper venue, cts usually transfer if they can
28 USC 1404
If a case is filed in an otherwise proper venue, for the convenience of parties and witness, and in the interest of justice, ct may transfer a case to any other district where it might have been brought or where all parties have consented
Does other place just make more sense? Moving party–> transfer proper
Private factors
- Ps choice of forum (unless balance of convenience is strongly in favor of D
- greater deference if P at home (not foreign–Piper)
- Ds choice of forum
- whether claim arose elsewhere
- convenience of parties
- convenience of witnesses
- ease of access to sources of proof
Public factors
- transferee’s familiarity with governing laws
- relative congestion of calendars of cts
- local interests in deciding controversies at home
Piper & Gilbert–> Forum non conveniens dismissal [CL]
authorizes fed and state cts to dismiss based on inconvenient forum when cannot transfer under 1404 to convenient and proper forum
For transferring
can only transfer cases within same ct system
Atl Marine
FSC. Ct said FSC is a very important factor in ruling on 1404(a) transfer. So when FSC and P filed in an otherwise proper venue, not a 1406 mtn, but 1404 where forum selection is taken seriously
Pleadings
Functions of pleadings (1) gives notice of nature of claum, (2) states facts, (3) narrows issues for litigation, (4) gatekeeper of unmeritorious claims
Complaints
FRCP 8
(a) A pleading that states a claim for relief must contain:
(1) short and plain statement of grounds for ct’s sm jx, unless ct already has jx
(2) short and plain statement of claim showing pleader is entitled to relief
(3) prayer for relief sought
(d) (1) in general, each allegation must be simple, concise, and direct. No technical form needed
(2) Party may set out 2 or more statements of a claim or defense alternatively. Claim is sufficient if any one of the alternatives is sufficient.
(3) a party may state as many separate claims or defenses as it has, regardless of consistency
(e) pleadings must be construed so as to do justice–> defect in form generally not fatal
inconsistent pleadings allowed up until trial
FRCP 9 heigtened pleading standards
(b) in alleging fraud or mistake, party must state with particularity circumstances constituting fraud or mistake. [concerned with reputation harms]
(g) special damages must be specifically stated
–> special damages are those not normally anticipated [eg damages for later miscarriage after car accident.
FRCP 10 Form
(a) pleading must have caption including cts name, file no. and rule 7a designation. Title must name all parties.
(b) party must state its claims in numbered paragraphs, each limited to single set of circumstances. Defenses must be stated in separate numbered para.
(c) exhibits are part of pleading
alleging facts
P should describe what, when, where, relationships and describe circumstances
truth of allegations
allegations may not be true (rule 11)
Conley notice pleading standard
complaint merely had to put D on notice of litigation against him
Twombly-iqbal plausible pleading standard
- are allegations well-pleaded? (more than conclusory)
- assuming truth, do well-pleaded allegations** plausibly state a claim for relief** [relying on judicial experience and common sense]
Default
failing to appear or defend
FRCP 55 defaults
(a) entering a default–> when a party against whom judgment is sought has failed to plead or defend, and failure is shown by affidavit or otherwise, clerk must enter the party’s default
(b) entering a default judgment
(1) by clerk–> if Ps claim is for a sum certain, and on Ps request with affidavit showing amt due, clerk enters default judgment against D
(2) by court–> in all other cases, P must apply (make case) to ct for DJ. if party against whom DJ has appeared, that party must be served written notice of application at least 7 days before hearing. Ct may conduct hearings
(c) Ct may set aside entry of default for good cause; and entry of DJ under R60(b)
cts prefer judgments on merits, leeway for Ds who FTA
FRCP 60
(b) ct may relieve a party from final judgment for following reasons:
(1) mistake, inadvertance, surprise, or excusable neglect
(4) judgment is void
(c) timing and effect of motion
(1) motion under 60(b) must be made within reasonable time and for reason (1), no more than a yr after judgment
(2) motion does not affect judgment’s finality or suspend its operation
FRCP 12(a) Time to serve a responsive pleading
(a) time to serve a responsive pleading
(1) in general, unless other time specified:
(A) D must serve an responsive pleading [or motion]
i) within 21 days after being served summons and cmplt; or
ii) if formal service waived, within 60 days of being served
motion not responsive pleading
FRCP 12 (b) defenses
(b) every defense to a claim must be asserted in responsive pleading, but party may assert following defenses by motion:
(1) lack of sm jx
(2) lack of pjx
(3) improper venue
(4) insufficient process
(5) insufficient service of process
(6) failure to state a claim upon which relief can be granted
(7) failure to join a party
Motion asserting any of these defenses must be made before pleading. No defense or objection is waived by joining it with other defenses.
12(e) motion for more definite statement
(e) party may make motion for more definite statement of pleading to which responsive pleading is allowed when pleading is so vague or ambiguous , party cannot prepare a response. Motion must be made before filing response (with other 12b defenses), must point out defects coimplained of and details desired. if ct orders more definite statement and party doesn’t obey w/in 14 days, ct may strike or issue another order
12(f) motion to strike
(f) ct may strike from pleading insufficient defense or redundant, immaterial, impertinent, or scandalous matter. Ct may act:
(1) on its own or
(2) on mtn made by other party before responding to pleading, or, if response not allowed, within 21 days after being served with pleading
12 (g) (h)
(g) omnibus motion rule–> (1) any motions under this rule may be joined
(2) if you do not make 12 motion that was available, cannot raise it against once first motion is made in following mtn or answer
(h) waiving and preserving defenses
(1) party waives defense under rule 12(b)(2)-(5) by
(A) omitting it
(B) failing to state it in first R12 response (mtn or ans)
(2) failure to state a claim, joining person, or to state a legal defense may be raised throughout trial.
(3) if ct lacks sm jx at any time–> must dismiss
Answers
FRCP 8 (b)(c)
(b)(1)(A) response must state in short plain terms its defenses to each claim asserted, AND
(B) admit or deny the allegations asserted against it
(2) denials–> denial must fairly respond to substance of allegation
(3) general and specific denials–> in good faith can generally deny all allegations; or specifically deny certain allegations or generally deny all except those specifically admitted
(4) if deny in part, must admit the part that is true and deny the rest
(5) if party lacks knowledge or info to form belief abt truth of allegation–> must so state
(6) failure to deny = admission [if responsive pleading not allowed–> silence = denied or avoided]
(c) affirmative defenses–> must plead or they are waived
TLDR: must include admissions, denials, rule 12(b) defenses, and affirmative defenses
saying P cannot prove = admission; not applicable for damages
Amendments
FRCP 15 (a) amendments before trial
(a)(1) a party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) 21 days after service of responsive pleading or 12 motion, whichever is earler
(2) in all other cases, party may amend pleading only with written consent of opposing counsel of leave of ct; ct should freely give leave when justice requires
(3) Any required reponse to amended pleading must be made within** time remaining** to respond to og pleading, or within 14 days after service; whichever is later
Foman Factors [to consider when granting leave to amend]
- Reasons for amendment (new facts/evidence vs new theory)
- Amending party’s diligence
-
undue prejudice on opposing party
4.futility of amendment (motion to dismiss standard)
FRCP 15 (b) amendments during and after trial [variance] evidence put on that goes beyond what was plead
(1) based on objection at trial–> of party objects to variance, ct may permit the pleading to be amended. CT should freely permit amendment when doing so will aid in presenting the merits and objecting party fails to establish that evidence would prejudice party’s action or defense
(2) issues tried by consent–> when an issue not raised by pleadings is tried by parties’ express or implied consent (failing to object), must be treated as if raised in the pleadings. Party may move to amend pleadings to conform them to evidence. Failure to amend does not affect result of trial of that issue
FRCP 15(c) relation back [relevant if SOL bars amendment]
(1) and amendment relates back to date of og pleading when
(A) applicable SOL allows
(B) Amendment asserts a claim or defense that arose out of conduct/transaction/occurrence set out in og pleading; or
(C) amendment changes party or naming of party if (B) is satsfied, and if within 90 days, party to be brought it
(i) received notice of action so it will not be prejudiced
(ii) knew or should have known action would be brought against it but for mistake of identity
[sued wrong D, but right D knew] (Krupski v. Cociere)
Rule 11 (a)(b)
(a) signature. Every pleading, written motion, or other paper must be signed. Paper must state signer’s address, email, and telephone number
(b) by presenting [signing, filing, submitting, or advocating] pleading, motion, or other to ct–attorney certifies that to best of their knowledge formed after reasonable inquiry under circumstances:
(1) it has a proper purpose
(2) claims/defenses have legal basis warranted by existing law; or by nonfrivolous argument to extend or modify law
(3) factual contentions have evidentiary support
(4) denials of factual contentions are warranted on evidence, or reasonably based on belief or lack of info
if violation, must consider whether violation infected entire pleading o
11(c) sanctions
Deter not punish.
(1) if after notice and reasonable op to respond, ct determines 11(b) violated, ct may impose santions. Law firm must be held jointly responsible for violation by partner/associate
(2) Motion for sanctions. Separate motion that describes specific conduct that violates rule 11. Must be served but not filed for 21 days, giving served party chance to correct defect
(3) on ct’s initiative–> ct may order party to show cause why specific conduct has not violated rule 11 (Hunter v. Earthgrains)
(4) must be limited to what suffices to deter repetition, can include monetary penalties, or non-monetary directives.
28 USC §1927
ct has authority to punish unreasonably and vexatiously “multiplied” litigation
