fed civ pro Flashcards
Under the Seventh Amendment, a party to a civil action has the right to a trial by jury with regard to
an action at law (i.e., an action for damages).
If an action involves both legal and equitable claims and there are common factual issues, then
the jury determines the legal claims first and the court subsequently determines the equitable claims.
Where a court is determining equitable claims following a jury’s determination on legal claims, the court is
The court is bound by the jury’s findings on the legal claims in determining the equitable claims.
After the jury returns a verdict and before the jury is dismissed, the court must poll the jurors individually if
a party requests.
attorney’s request to poll the jurymade after the jury had returned its special verdict and before the judge dismissed the jury is:
timely
special verdict
a written finding made by the jury on each issue of ultimate fact
Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed by the defendant to the district court for
the district and division in which the state court action is pending.
if removal is sought solely based on diversity jurisdiction, then the claim may be removed only if
no defendant is a citizen of the state in which the action was filed.
For the purposes of the diversity-of-citizenship requirement, a corporation is a citizen of
the state of its incorporation and its principal place of business.
A defendant who wants to remove a state court action to federal district court generally must file a ________________ with the _______________ within ______days after receipt by or service on that defendant of the __________ pleading or summons.
notice of appeal;
district court
30 days
initial pleading/summons
A complaint should not be dismissed for an mere imperfect statement
of the legal theory.
under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to
1) assert a legal theory of recovery that is cognizable at law or
2) fails to allege facts sufficient to support a cognizable claim
In reviewing a motion to dismiss under Rule 12(b)(6), the court must identify and reject
legal conclusions unsupported by factual allegations.
under Rule 12(b)(6), the court must identify and reject
mere conclusory statements and assertions devoid of facts
A motion to strike is appropriate if a pleading contains
any insufficient defense, or redundant, immaterial, impertinent, or scandalous material.
A motion for summary judgment occurs after
discovery is complete.
A motion for judgment on the pleadings under Rule 12(c) must be made after
an answer is filed.
while the amount of damages sought by a defendant in a counterclaim may be relevant in determining the court’s subject-matter jurisdiction over the counterclaim, it is not relevant in determining
the court’s subject-matter jurisdiction over the plaintiff’s claim.
The fact that a corporation engages in substantial business in a state does not make the corporation
a citizen of that state.
When the assignment of a claim is a business transaction rather than a collusive act to create diversity jurisdiction, the assignee is
the real party in interest whose citizenship determines the existence of diversity.
When a plaintiff seeks special damages, the plaintiff is required to
plead such damages with specificity.
a plaintiff is generally not required to plead
a defendant’s capacity.
the burden lies on the defendant to deny capacity to contract and provide
supporting facts that are peculiarly within the defendant’s knowledge.
a plaintiff is not required to plead with particularity the satisfaction of a condition precedent. Instead, a defendant who denies that such a condition has been satisfied
must do so with particularity.
a plaintiff is not required to plead the absence of mistake. Instead, a defendant is required to
raise this issue and state with particularity the circumstances that gave rise to it.
A temporary restraining order (TRO) may be issued without notice to the adverse party if the moving party establishes:
1) that immediate and irreparable injury will result prior to hearing the adverse party’s opposition,
2) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.
TRO can be issued
ex parte
Unlike state citizenship, citizenship in a foreign country generally does not depend on domicile but on whether
the individual has taken the necessary steps to become a citizen.
An action originally filed in state court, including actions based on a state law claim, such as negligence, can generally be removed to a federal court if
the federal court would have originally had jurisdiction.
The doctrine of issue preclusion, often called “collateral estoppel,” precludes the re litigation of
issues of fact or law that have already been necessarily determined by a judge or jury in an earlier action.
for collateral estoppel to apply the issue sought to be precluded must be
1) the same as that involved in the prior action,
2) must have been actually litigated in the prior action, and
3)must have been essential to the prior valid, final judgment.
in general, a judgment by the court, rather than a jury, can still have _____________effect in a subsequent action tried before a jury.
preclusive effect
res judicata precludes a party from successive litigation of
an identical claim in a subsequent action.
A federal court must generally determine whether personal jurisdiction exists as if it
were a court of the state in which it is situated.
The service of a summons in a federal action establishes personal jurisdiction over a defendant “who is
subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.”
“bulge provision” in the federal rules that provides for service of process on a party within 100 miles of the forum court even if
state law would not otherwise permit such service
The bulge provision only applies to
a third-party defendant joined under Rule 14 or a required party joined under Rule 19.
no special service of process rule with regard to
a declaratory judgment action.
newly discovered evidence grounds for granting new trial
1) upon motion by a party;
2) newly discovered evidence;
3) existed at the time of trial
4) was excusably overlooked and
5) likely have altered the outcome of the trial.
grounds for granting new trial include:
1) damages awarded were excessive
2) verdict is against the clear weight of the evidence
3) newly discovered evidence
a motion for a new trial may be made and granted regardless of whether
case is tried before a jury or only a judge.
If no responsive pleading is required, a party may amend a pleading once as of right no later than
21 days after serving it.
If a responsive pleading is required, the party may amend within
1) 21 days of service of the responsive pleading or
2) within 21 days of being served with a motion to dismiss under Rule 12(b)
(whichever is earlier)
In an action that arises under state law and is based on diversity jurisdiction, the federal district court should usually apply the long-arm statute of the state in which
the court is located in determining personal jurisdiction over the defendant.
A party is considered necessary if
the party’s absence would leave the existing parties subject to a substantial risk of multiple or inconsistent obligations.
Whether the court has personal jurisdiction over a person who has not been joined as a party can dictate whether
the court can order the joinder of the person as a party, but does not determine whether that person is a necessary party.
Whether the court lacks subject matter jurisdiction over a person who has not been joined as a party can dictate whether
the court can order the joinder of the person as a party, but does not determine whether that person is a necessary party.
Generally, an issue that constitutes a necessary component of the decision reached will be considered
essential to the judgment.
Unlike claim preclusion, issue preclusion does not require
strict mutuality of parties, but only that the party against whom the issue is to be precluded must have been a party to the original action.
issue preclusion requires that the party against whom the issue is to be precluded must have been
a party to the original action
Federal-question jurisdiction exists only when an issue of federal law is presented in
the plaintiff’s complaint (the “well-pleaded complaint” rule).
Under the well pleaded complaint rule, the determination of jurisdiction must be made by considering only
the necessary elements of the plaintiff’s cause of action, and not potential defenses.
time limit for filing a notice of removal
30 days
no requirement that notice of removal is filed before
defendant files an answer
federal-question jurisdiction may not be established based on
the assertion of a federal-law defense in an answer (this is the well-pleaded complaint rule).
where the court does not have diversity jurisdiction over a counterclaim because AIC is not satisfied; the court may exercise supplmental JD if:
a counterclaim arises out of the same case or controversy as the original claim
Unless a party timely and properly objects on the record to an erroneous instruction given or proposed to be given by the court or to the court’s failure to give an instruction timely requested by a party, the party generally cannot
raise the matter on appeal.
if an objection to a jury instruction is not preserved for appeal properly, the appellate court can address a
plain error with regard to the jury instructions that affects substantial rights.
Although the instructions provided to the jury are generally subject to the trial judge’s discretion, jury instructions are generally not reviewable by an appellate court absent
a proper and timely objection by a party.
Federal Rule of Civil Procedure 51 does recognize the appellate court’s right to address an erroneous jury instruction under
the plain error doctrine
is the court required to accept the proposed jury instructions of either party.
NO
under Federal Rule of Civil Procedure 51, a federal district court may require a party to submit its proposed jury instructions at
any reasonable time before the close of evidence, including before trial.
A motion for summary judgment must be granted if
1) there is no genuine dispute as to any material fact and
2) the moving party is entitled to judgment as a matter of law.
The standard for granting a summary judgment does not depend on
whether a jury trial has been demanded; it applies to all civil actions
If the standard for motion for summary judgment is met, what is the court required to do?
It must grant the motion
Under Rule 11, the court generally has discretion to impose a monetary sanction against the plaintiff’s attorney for violating
Rule 11(b).
under Rule 11(c), the court is not permitted to impose a monetary sanction against a represented party for violating the requirement that
legal contentions be warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.
the movant with respect to the summary judgment motion, has the burden of
persuasion to show that there is no genuine dispute as to any material fact.
In deciding a motion for summary judgment, the court is required to construe all evidence in the light most favorable to
the nonmoving party
Once the movant makes a prima facie showing that summary judgment is appropriate, the burden of proof shifts to the opposing party to set forth specific evidence showing
the existence of a genuine issue of fact for trial.
A case will be tried by the court without a jury if
no right to a jury trial exists (or if it has been waived).
Where the court is the finder of fact; it must “find and state”:
find the facts specially and state its conclusions of law separately.
The findings and conclusions of the court as fact-finder may be “stated or appear”
findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court
The court is not required to state findings or conclusions when ruling on a motion under
Rule 12 (motions against the complaint) or 56 (summary judgment) or, unless the rules provide otherwise, on any other motion.
In a nonjury trial, a judge must generally state his findings of fact and conclusions of law on the record or in a written opinion, even if not requested to do so by one of the parties, unless
the determination involves a motion under Rule 12.
For purposes of diversity jurisdiction, the value of a single plaintiff’s claims against each of multiple defendants cannot be aggregated if the claims are
separate and distinct and the defendants are not jointly liable with respect to the claims.
while a federal district court has subject-matter jurisdiction when the action involves a federal question, a federal district court can also have subject-matter jurisdiction over a claim based on
state law when diversity jurisdiction exists.
Under the doctrine of issue preclusion, when an issue is actually litigated and is essential to the judgment of a court of competent jurisdiction, that determination is conclusive against
a party to the prior proceeding in a subsequent suit based on a different claim.
unlike claim preclusion, issue preclusion can be applicable to a position taken by a party in a prior action, even though
the other party to the current action was not a party to the prior action. Mutuality of parties is not required.
issue preclusion can apply to
a factual determination made in another case as well as a legal one.
A court, upon motion or upon its own initiative, may order a pleading containing an insufficient defense to be
stricken.
A motion for judgment on the pleadings allows a court to dispose of a case when
1) the material facts are not in dispute and
2) a judgment on the merits can be achieved based on the content of the pleadings.
In answering the complaint, can the defendant assert a counterclaim against the plaintiff in its answer?
Yes, it doesnt need to be pleaded separately
a party may raise separate claims or defenses, regardless of
consistency.
traditionally, voluntary appearance of the defendant in court automatically subjected the defendant to personal jurisdiction, unless
he was present with the express purpose of objecting to personal jurisdiction (called a “special appearance”). (no longer the rule, been abolished)
Modern Federal Rule: the objection is waived if the personal jurisdiction objection is not raised in the first of
(i) a Rule 12 motion, if raised before the answer; or (ii) the answer itself.
Voluntary appearance of the defendant in court to defend the claim on the merits automatically subjects the defendant to
the personal jurisdiction of the court, unless she is present in court to object to personal jurisdiction.
Appearance for the express purpose of making a jurisdictional objection is
not consent to the court’s jurisdiction over her.
One of the requirements for the use of issue preclusion is that the party against whom it is to be asserted in the current lawsuit
was a party (or one in privity with a party) to the prior lawsuit.
When a jury is instructed to deliver both a general verdict and to answer special interrogatories, if the answers to the interrogatories are consistent with each other but not with the general verdict, the court has the option of
approving a judgment that is consistent with the answers, notwithstanding the general verdict.
when the jury’s answers to those interrogatories conflict with each other, the court
cannot enter a judgment and cannot approve the entry of the general verdict.
when the jury’s answers in a general verdict and special interrogatories are inconsistent, the court can either:
set aside the verdict and ask the jury to reconsider the issue, or alternatively order a new trial.
Generally a court may not order the entry of a judgment that is contrary to a jury’s general verdict, unless:
ruling on a party’s renewed motion for judgment as a matter of law
When a jury is instructed to return a general verdict as well as answer special interrogatories and the jury’s answers to special interrogatories conflict with each other, the court does not have the discretion to
order the entry of the jury’s general verdict—it cannot enter judgment.
Federal Rule of Civil Procedure 49 specifically permits the use of
special interrogatories along with a general verdict.
In order for claim preclusion to apply with respect to a prior court decision, the decision must have been
1) a valid, final judgment on the merits and
2) the prior action and the current action must involve sufficiently identical parties and causes of action.
By federal statute, a federal court must give full faith and credit to a ________________________.
state court judgment
When determining the effect of a dismissal with prejudice by a state court, a federal statute requires the federal court to
give the state court judgment full faith and credit.
while the Full Faith and Credit Clause of the U.S. Constitution only applies to the enforcement of the judgment of one state court by the courts of another state,
a federal statute requires a federal court to give the same effect to judgment by a state court.
In order to take advantage of the relaxed subject matter jurisdictional rules of the Class Action Fairness Act (CAFA), the amount-in-controversy must
exceed $5 million.
the CAFA requires that the class contain at least
100 members.
While most class actions require that none of the class representatives be a citizen of the same state as any of the defendants, only _____________________ is required under the CAFA.
minimal diversity
minimal diversity under the CAFA requires
Only one class member must be a citizen of a state of which none of the defendants is a citizen.
while most class actions require that at least one member of the class have damages in excess of $75,000, under the CAFA
there is no requirement that any member of the class have such damages.
The CAFA amount-in-controversy requirement is based on
the total amount of damages sought by all class members.
In order for a defendant to be subject to the jurisdiction of a court, the defendant must have
sufficient minimum contacts with the forum state.
a single contact can be sufficient if
the cause of action is based on that contact
an out-of-state corporation is not subject to personal jurisdiction solely because of contacts in the state by
an independent contractor.
Contacts by a nonresident employer’s agents or employees, are generally imputed to the employer when
the agent or employee is acting within the scope of the agency or employment.
When a defendant corporation is not subject to the general jurisdiction of the forum court, the corporation may still be subject to
specific jurisdiction.
When a cause of action arises out of or closely relates to a defendant’s contact with the forum state,____________ jurisdiction may be warranted over that action; even if that contact is the defendant’s _________contact with the forum state.
specific jurisdiction;
only contact
To determine whether the corporation is subject to a state’s general jurisdiction, the proper inquiry is whether a foreign corporation’s affiliations with the forum state are
so “continuous and systematic” as to render the corporation essentially “at home” in the forum state.
A corporate defendant is at home in the state of
the corporation’s place of incorporation and, if different, the state of its principal place of business.
In exceptional cases, a corporate defendant’s operations in another forum may be so substantial and of such a nature as to render the corporation
at home in that state.
The domicile of a shareholder, even a majority shareholder, in a state is not imputed to the corporation unless
the corporation is merely the alter ego of the shareholder or the shareholder is acting as the corporation’s agent.
a defendant must respond to a complaint either by
an answer or pre-answer motion within 21 days of service of complaint; unless defendant seeks and is granted additional time in which to respond.
despite the language of rule 12(b), a motion to dismiss based on lack of personal jurisdiction may be filed after an answer is filed when
the answer pleads this defense
—(i) causing tortious injury in Virginia by an act or omission outside Virginia, if the defendant regularly does business or derives substantial revenue from goods used or consumed or services rendered in Virginia
defendant’s conduct that permits a Virginia court to acquire long-arm jurisdiction over that defendant
(ii) causing injury in Virginia to any person by breach of warranty expressly or impliedly made in the sale of goods outside Virginia when the defendant might reasonably have expected such person to use, consume, or be affected by the goods in Virginia (provided that he also regularly does business or derives substantial revenue from goods used or consumed or services rendered in Virginia);
defendant’s conduct that permits a Virginia court to acquire long-arm jurisdiction over that defendant
using a computer or computer network located in Virginia.
defendant’s conduct that permits a Virginia court to acquire long-arm jurisdiction over that defendant
Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed by the defendant to
the district court for the district and division in which the state court action is pending.
In general, the right of removal is determined by
the pleadings filed as of the time of the filing of the petition of removal.
when filing for removal in diversity cases, diversity must exist at the time of filing
the original action as well as at the time the notice of removal is filed, unless the plaintiff dismisses a party who would have destroyed diversity jurisdiction.
An individual is a domiciliary of the state in which she is
present and intends to reside for an indefinite period.
a corporations principal place of business, which is
the “nerve center” of the corporation.
The nerve center is generally the location from where
the high-level officers direct, control, and coordinate the activities of the corporation, which typically is the corporate headquarters.
for diversity jurisdiction to exist, the amount in controversy must exceed the sum or value of $75,000, exclusive of
interest, costs, and collateral effects of a judgment.
The amount in controversy is determined at the time the action is commenced in federal court, or, if the action has been removed to federal court, at
the time of the removal.
When diversity jurisdiction exists when a complaint is filed, jurisdiction is not lost when
events after the action has been filed reduce the amount in controversy below the statutory minimum, provided the original claim was made in good faith.
if the plaintiff eventually recovers an amount that is less than the statutory jurisdictional amount, then
that fact will not render the verdict subject to challenge on appeal for lack of jurisdiction.
to accomplish removal from state circuit court to federal district court, the defendant must
1) file a notice of removal that is signed and contains a short and plain statement of the grounds of removal, with copies of the complaint and summons served on them
2) the notice and compliant are filed in the district court
3) promptly after filing notice with federal court, defendant must give written notice of the filing to all adverse parties
4) and file a copy of the notice with the state court clerk
defendant has 30 days after complaint is served on them to file a
notice of removal
the procedure in federal court for a defending party to make a claim against a non-party for all or part of the defending parties liability on an original claim is
impleader
impleader is available to a defendant to pursue an
indemnity claim
for impleader to be available, the federal district court must have
1) subject matter jurisdiction over the third party claim, and
2) personal jurisdiction over the third party who the claim is asserted against
a limited liability company (LLC) is deemed to be a citizen of each state that
a member of the LLC is a citizen
a federal district court may have subject matter jurisdiction over an indemnity claim if it has supplemental jurisdiction, which requires
1) the indemnity claim to be closely related to the original claim
2) and involves a common nucleus of operative facts
for impleader the federal district court must also have
personal jurisdiction over the third party
a federal district court will have personal jurisdiction over a third party even with only one contact if
the cause of action closely relates to the purposeful contact, giving the court specific jurisdiction
to effect impleader, defendant must
1)serve a summons and third party complaint on the third party defendant
2) if filing more than 14 days after service of the original answer, original defendant must obtain the court’s permission
if third party defendant does not have a registered agent in VA, the long arm statute permits service of process on
the Secretary of the Commonwealth
a third party defendant may file a counterclaim against either
an original defendant, or an original plaintiff
a pleading is required to state as a counterclaim (compulsory counterclaim)
any claim, at the time of service, the pleader has against an opposing party if the claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim.
a permissive counterclaim does not necessarily fall within the supplemental jurisdiction of the federal court, as it does not
arise out of the same transaction or occurrence as the original claim.
a permissive counterclaim must on its own
meet the requirements for federal subject matter jurisdiction
a change in citizenship after the filing of a case will
not affect diversity jurisdiction that was in existence at the time of filing
the basis for in personam jurisdiction are
1) voluntary presence
2) domicile
3)consent
4) the long arm statute of the state where the federal district court sits
a counterclaim may be asserted by a defendant against a plaintiff without satisfying the jurisdiction amount for diversity when
the counterclaim is compulsory, but a permissive counterclaim does not qualify for supplemental jurisdiction
The general rule is that any single plaintiff may aggregate all of thier claims against
a single defendant; no limit to this aggregation of claims principle
Transfer occurs when
the case is moved from one trial court in a judicial system to another trial court in the same judicial system.
Because transfer of venue overrides the plaintiff’s choice of forum in selecting where to file suit, the burden is on
the moving party to show both public and private factors that would grant the court deeming the transferee location as being the center of gravity for the case.
For public factors the court looks to
what community should be burdened by jury service, and the desire to keep the controversy local.
The private factors are based on convenience, such as
where the defendants and evidence are located
An impleader claim is one where
a defending party is bringing in a new party, or the third party defendant
An impleader claim is used to
shift the liability to the impleaded third party defendant for liability the original party will owe to the plaintiff
In an impleader, if the defendant is going to be found liable to the plaintiff, the defendant will try to get the impleaded party to
pay all or part of his own liability
impleader actions are claims of
indemnification or contribution
While indemnity shifts liability completely to the third party defendant or impleaded party, contribution shifts the liability
pro-rate, so the TPD must cover pro-rata their portion of the claim.
An impleader claim is permissive, meaning
that the defendant need not bring the action in the current case
In order to implead a third party defendant, the defendant must
file a third party complaint naming the TPD and have that complaint formally served on them.
There is a right to implead within
14 days of serving the answer
after 14 days of serving the answer, if the defendant has not filed the motion to implead,
the defendant needs the courts permission
Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may be removed
by the defendant to the district court for the district and division in which the state court action is pending.
A federal district court has limited subject matter jurisdiction and removal is not
a substitute for federal question or diversity jurisdiction.
Diversity jurisdiction generally requires
complete diversity between opposing parties and an amount in controversy that exceeds $75,000.
There is no diversity of citizenship if
any plaintiff is a citizen of the same state as any defendant in the case.
Citizenship is determined at the time
1) the case is filed and
2) at the time the notice of removal is filed.
There is no requirement that diversity existed at the time
the action arose.
The amount in controversy must exceed $75,000 exclusive of
interest, costs, and collateral effects of a judgment.
The amount in controversy is determined at the time
the action is removed to federal court, and the plaintiff’s good-faith assertion of damages is sufficient
with regard to amount in controversy, a plaintiffs good faith assertion of damages is
sufficient
The defendant must file a notice of removal with
the district court sitting in the district and division where the state action is pending
The defendant must file a notice of removal within
30 days after receipt of the initial pleading or summons.
removal is proper where:
1) federal district court can exercise jurisdiction (div/FQ)
2) notice of removal timely filed
A party must make a motion for remand within
30 days after the filing of the notice of removal.
The removal statute specifically requires the case to be removed to
the district court for the district and division in which the state court action is pending.
where notice of removal filed in wrong district/division + motion to remand timely filed =
case subject to a motion to remand
the proper division requirement has been characterized as
procedural, rather than jurisdictiona
where the notice of removal is filed in the wrong division, instead of remanding, some courts have opted to
transfer the case to the proper federal court
where diversity exists between the parties, and the only remaining grounds for remand are removal to the wrong federal court, the district court should
simply transfer the case to the proper district court
In general, persons may be joined in one action as defendants if
(i) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence, and
(ii) a question of law or fact common to all defendants will arise in the action.
in order to permit joinder, the additional defendant must also meet the requirements of
subject matter jurisdiction
where a would be joined party is a citizen of the same state as the plaintiff
his joinder would destroy diversity and the federal court would no longer have subject matter jurisdiction over the case.
Generally, if, after removal, the plaintiff seeks to join a defendant who would destroy the federal court’s diversity jurisdiction, the court has discretion to
1) deny the joinder and proceed with the action in federal court, or
2) to permit the joinder and remand the action to state court.
a court is likely to deny a motion to join a defendant party that would destroy diversity when the motion is made in
bad faith in order to remand the case to state court.
Under Rule 11, every pleading, written motion, and other paper filed with the court must be certified by the attorney that, to the best of his knowledge, information, and belief, formed after an inquiry reasonable under the circumstances
(i) the paper is not being presented for any improper purpose,
(ii) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law, and
(iii) the factual contentions have or reasonably will have evidentiary support.
argument for a motion for sanctions under rule 11 where
claim filed is frivolous and without evidentiary support
A motion for sanctions under Rule 11 must be
properly served on the opposing party. (phone call day before filing the motion is insufficient)
court will deny a sanctions motion where
the would be sanctioned party was not properly served with the motion
If the mental or physical condition of a party or a person in the legal custody or control of a party is in controversy, then the court may
order such person to submit to a physical or mental examination by a “suitably licensed or certified examiner.”
A “suitably licensed or certified examiner” need not be
a physician, but often is
others licensed to report on physical or mental conditions, including dentists or psychologists, can
qualify as suitable examiner
a court may order a party to submit to a mental examination when
the party’s mental condition is in controversy.
While there are several acceptable justifications for using a witness’ deposition testimony at trial rather than having the witness testify in person, the desire to save litigation expenses is
unlikely to be determined by the court as an exceptional circumstance that would make it desirable in the interest of justice to permit the deposition to be used.
where a notice of trial deposition is filed days before discovery cut-off date, opposing party should file
an objection because it lacks adequate time to prepare for the deposition; if unable to resolve with moving party, file a motion for a protective order
deposition cannot be used against a party who
having received less than 14 days’ notice of the deposition, promptly moved for a protective order requesting that it not be taken or be taken at a different time or place—and this motion was still pending when the deposition was taken.
while the discovery process requires a degree of cooperation between the parties, there is no requirement that a party obtain the consent of
an opposing party before deposing a non-party witness.
for an extension of the discovery cut-off date to depose a non party witness, the moving party must establish
goods cause for the extension
possible avenues for using a deposition at trial for substantive purposes
i) The witness is more than 100 miles from the trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition (determined at time of trial) (court takes judicial notice of location);
ii) The party offering the deposition could not procure the witness’s attendance by subpoena; or
iii) On motion and notice, exceptional circumstances make it desirable in the interest of justice to permit the deposition to be used.
The Federal Rules of Civil Procedure require a short and plain statement of the claim showing that
the pleader is entitled to relief to give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.
Under the Rules’ notice pleading requirement, detailed factual allegations are not required, but a party must plead facts
sufficient to show that the claim has substantive plausibility.
Under the Rules’ notice pleading requirement a claimant may not
merely recite the elements of a cause of action with broad, conclusory statements.
in support of a Motion for Sanctions for Spoliation of Evidence, argue that
1) case was prejudiced by missing evidence
2) or party acted with intent to deprive the party of the evidence
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, then the court:
(i) upon finding prejudice to another party, may order measures no greater than necessary to cure the prejudice, or
(ii) upon finding that the party acted with the intent to deprive another party of the information, may presume the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable, dismiss the action, or enter a default judgment.
file a Motion for Relief from the Judgment within
a reasonable time and in any case not later than one year following the entry of the judgment
A party may file a Motion for Relief from a Judgment within a reasonable time, and no later than one year following the entry of the judgment for
(i) newly discovered evidence that could not have been earlier discovered with reasonable diligence, or
(ii) fraud (intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.
The rule for Relief from a Judgment allows a court to exercise
its equitable jurisdiction to relieve a party from a judgment in any case in which enforcing the judgment would work injustice, and the party seeking relief or its counsel was not guilty of misconduct or gross negligence.
A motion for relief from judgment should request that
1) judgment be vacated, and
2) a new trial be ordered
In an action that does not involve a federal question, a federal district court’s subject matter jurisdiction must be based on
diversity jurisdiction.
For diversity jurisdiction to exist, the amount in controversy must
exceed $75,000, excluding interests, cost, and the collateral effects of a judgment
For diversity jurisdiction to exist
there must be complete diversity between opposing parties in a case.
In general, a plaintiff’s good-faith assertion in the complaint that the action satisfies the amount-in-controversy requirement is sufficient, unless
it appears to be a legal certainty that the plaintiff cannot recover the amount alleged.
There is no diversity of citizenship if
any plaintiff in the case is a citizen of the same state as any defendant.
Diversity is determined at
the time the case is filed.
In determining the citizenship of an individual, the individual must be
a citizen of the United States and a domiciliary of the state.
In general, an individual is a domiciliary of the state in which
she is present and intends to reside for an indefinite period.
A corporation is deemed to be a citizen of every state in which
it has been incorporated and of the state where it has its principal place of business.
When a federal district court lacks subject matter jurisdiction with respect to an action initially bought in the federal district court, the court
must dismiss the action.
There is no time limit for making a motion to dismiss on the basis of lack of subject matter jurisdiction as long as
the action, including any appeal, is ongoing
Any civil action commenced in state court may generally be removed by the defendant to federal district court in
the district and division in which the state court action is pending.
In general, the right of removal is determined by the pleadings filed as of the time of the filing of
the petition of removal
for removal in diversity cases, diversity must exist at the time of
filing the original action as well as at the time the notice of removal is filed, unless the plaintiff dismisses a party who would have destroyed diversity jurisdiction.
If removal is sought solely based on diversity jurisdiction, then the claim may be removed only if
no defendant is a citizen of the state in which the action was filed, even though subject matter jurisdiction exists.
since the action is based on state law, the federal court, in order to have subject matter jurisdiction, must have
diversity jurisdiction over the parties
A defendant who wants to remove a state court action to federal district court generally must
file a notice of removal with the district court within 30 days after receipt by or service on that defendant of the initial pleading or summons.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which
it may first be ascertained that the case is one which is or has become removable.
a matter cannot be removed based on diversity of citizenship more than
one year after the action is commenced.
Compulsory counterclaim:
Under Federal Rule 13(a), a pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if
1) the claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim and
2) does not require adding another party over whom the court cannot acquire jurisdiction.
Under Federal Rule 13(b), a pleading may state as a counterclaim against an opposing party any claim that is
not compulsory (i.e., a permissive counterclaim).
Under Federal Rule 18(a), a party asserting a counterclaim may join with it
as many independent or alternative claims of whatever nature as the party may have against the opposing party.
Under Federal Rule 13(g), a pleading may state as a cross-claim any claim by one party against a co-party that
arises out of the same transaction or occurrence that is the subject matter of the original action
under Rule 18(a), a party asserting a cross-claim may join with it
as many independent or alternative claims of whatever nature as the party may have against the opposing party
In determining if the AIC is satisfied in a diveristy case, If injunctive relief is sought and it is difficult to assess a dollar amount, the court determines both
the value of the plaintiff’s harm if an injunction is not imposed and the defendant’s cost of complying with an injunction.
If the amount of either exceeds $75,000, then the amount-in-controversy requirement is satisfied.
When an action involves one plaintiff against multiple defendants, the value of the plaintiff’s claims against each defendant generally may not be aggregated, unless
the defendants are jointly liable to the plaintiff, then aggregation to meet the amount-in-controversy requirement is permissible.
If venue in a case is improper, then the district court must
dismiss the case or transfer the case to any district or division in which the case could have been brought.
In general, venue in a federal civil action is proper only in a judicial district in which
1) any defendant resides, if all defendants reside in the same state in which the district is located; or
2) a judicial district in which a substantial part of the acts or omissions on which the claim is based occurred.
For venue purposes, a natural person is deemed to reside in the judicial district where
that person is domiciled
A corporation is deemed to reside in any judicial district in which
the corporation is subject to personal jurisdiction
Even when venue is proper, in the interest of justice, a district court may transfer a civil action to any other district where it might have been brought if
it is more convenient for the parties and witnesses, or to another jurisdiction to which all parties have consented.
In general, only a final judgment rendered by a federal district court is
appealable
A final judgment is
a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.
There are a few exceptions to the final judgment rule, such as
interlocutory order granting, modifying, refusing, or dissolving an injunction.
In order for a court to have personal jurisdiction over a defendant
the statutory requirements for such jurisdiction must be satisfied and the exercise of such jurisdiction must comport with the due process requirements.
A federal district court must generally determine personal jurisdiction as if
it were a court of the state in which it is situated
Virginia, as do all other states, has a long arm statute that permits a Virginia court to
exercise personal jurisdiction over an out of-state defendant who engages in the enumerated conduct.
To satisfy the Due Process Clause, the defendant must have
“minimum contacts” with the state in which the court sits (i.e., the forum state), and the exercise of jurisdiction must be fair and reasonable.
to warrant the assertion of personal jurisdiction, a defendant’s contacts with the forum state must be
purposeful and substantial, such that the defendant should reasonably anticipate being sued there.
The scope of the contacts necessary for the assertion of personal jurisdiction depends on
the relationship that the cause of action has with the forum state.
When a cause of action arises out of or closely relates to a defendant’s contact with the forum state, jurisdiction may be warranted even if
that contact is the defendant’s only contact with the forum state (specific jurisdiction)
If the diversity action involves only one plaintiff and one defendant, then all of the plaintiff’s claims are added together (i.e., aggregated) to determine
the amount in controversy
Third-party claims, also known as impleader, are made by a defending party against a non-party for
all or part of the defending party’s liability on an original claim.
The impleaded claim must relate to
the original claim against the defending party.
A third-party claim must fall within
the federal court’s subject matter jurisdiction.
in a third party claim, subject matter jurisdiction is typically established through supplemental jurisdiction because
the impleaded claim must relate to the original claim and thus would satisfy supplemental jurisdiction’s key requirement.
there must be personal jurisdiction over the third-party defendant for
impleader to apply
Pj over a third party can be established through specific personal JX if
if the cause of action closely relates to the impleaded party’s contacts with the forum state.
