Fed Civ Pro Flashcards
Venue is proper where
1) any federal district where D resides
2) where substantial events giving rise to claim occurred
Diversity jurisdiction
where all plaintiffs are completely diverse in citizenship from all defendants and the amount in controversy exceeds $75k
An individual citizen is domiciled where they physically reside with the intent to remain indefinitely. A corporation is domiciled where they are incorporated and have their PPB. PPB is where the corp has their nerve center–where high ranking officers and directors conduct the business of the corporation
What jury instruction law should courts use for diversity jurisdiction where it concerns substantive law?
VA model jury instructions
What law does ct use for jury instructions when the instructions concern laws of procedure?
Fed Model jury instruction, so long as it doesnt address state substantive law
Federal Question Jurisdiction
the courts subject matter jurisidction to hear cases that arise under federal law, treaty, statute, or constitution
Supplemental jurisdiction
Fed courts ability to hear a case it would not ordinarily have jurisdiction over when the case arises out of a common nucleus of operative fact as the federal claim before the court
Personal jurisidction in federal ct is determined by
Virginia’s long arm statute + minimum contacts due process analysis
Minimum contacts due process analysis
D purposefully avails himself of VA’s laws thus putting him on reasonable notice of suit
Virginia long arm statute
- transacting any business in Virginia
- Contracting to supply services or things in VA
- Causing tortious injury by act or ommission in VA
- Causing tortious injury in VA by act or ommission outside of VA if he regularly does or solicits business or derives substantial revenue from goods used or consumed or services rendered in VA
- Causing injury in VA by BREACH OF WARRANTY made in sale of goods outside of VA when he might reasonably expect such person to use, consume, or be affected by the goods in VA, provided he regularly does or solicites business, derives substantial revenue from goods used or services rendered in VA
- Possessing real property in VA
- Contratcing to insure person or property located in VA
- Child support
- Operating a computer network located in VA
- Incurring liability for taxes, fines, penalties
- Maintaining a matrominial domicile at time of seperation of parties upon which grounds for divorce or seperate maintenance is based
When/how must D raise challenge of personal jurisidction
motion to dismiss for lack of PJ in first filed challenge to P’s complaint…answer pre answer motion
Submitting to a physical/mental exam
Ct may order a party to submit to a physical or mental exam by suitably licenses examiner when party’s physical/mental condition is in controversy
Motion for leave to ammend pleading should be freely granted when
justice so requires
-aka should not be granted if it would cause undue prejudice, delay or filed in bad faith
What action should be filed when one party holds property subject to competing claims
interpleader action joining all claimaints
Interpleader action asks ct to
determine who is entitled to the property
Interpleader brought in GDC is subject to
$25k cap
D can remove case from State to Fed Ct if
- D files notice of removal w district ct within 30 days of receiving service
2.Fed ct has smj jurisidction
- If diversity, D is not domiciled in jx where case is being removed
- Case is being removed to fed jx where state ct action is pending
Removal is determined based on the pleading at time
D files removal petition
Removal: Diversity must exist
at time of filing pleading and at time of removal
Diversity must exist at time of filing complaint and time of removal unless
P dismisses a party who would have destroyed diversity
Supplemental jx: ENtire case can be removed to fed ct if
state law claim arises out of common nucleus of operative fact as the fed q claim
Ct may determine all issues or in its discretion remand any claims where state law predominates
Can D remove a case from Fed ct to State ct
No, that is called remand and only occurs after removal if removal was defective
If, after removal, P seeks to join a D who would destroy fed court’s diversity, ct may
deny joinder and proceed w the action in federal court or permit the joinder and remand the action back to state ct
How can case be remanded back to state court
if there was a defect in removal
When diversity jx exists when complaint is filed, is jx lost when events after the action has been filed reduce the amount in controversy beflow the stat minim
no, so long as OG claim was made in good faith
Procedure for Removal
D must file notice of removal within 30 days of recipt of the complaint
Notice of removal requisites
removal must be
1) signed containing a short and plain statement abt grounds for removal
2. verified
3) filed in district ct where state action is pending
- accompanied by copies of all process, pleadings and orders served on Ds seeking removal
Must All D’s join in notice of removal?
Yes
Removal: notice to P
notice of removal must be sent to P in state ct where case was pending
Domicile for partnership in diversity
where all partners are domiciled, general and limited
Can you aggregate multiple claims against one D in diversity
yes, regardless of the subject of the aggregated claims
Value of P’s claims against multiple D’s generally cant be aggregated if
claims are separate and distinct
Demand for jury must be made within
14 days of filing complaint
If P has failed to sue a person who is subject to service of process and whose joinder will not deprive the ct of subject matter jx, person must be joined as a party if
1) w/o that person complete relief cannot be granted among existing parties or
2) Person claims an interest relating to subject of the action and is so situated that disposing of action in person’s absense may impair or impede person’s ability to protect that interest or leave an existing party subject to a substantial risk of incurring multiple or inconsistent obligations bc of the interest
what action is used by a D to assert claims against 3rd party for all or part of the liability on the original claim
impleader
Impleaded claim must relate to
the original claim against the defending party
impleaded claim must fall wthin ct’s
SMJ
Ct must also have ___jx over the 3rd party D for impleader to apply
personal jx
sanctions should not be imposed based on a pleading if
1) it is not being presented for an improper purpose
2) claims, defenses and other legal contentions are warranted by existing law or by a nonfrivilos argument for extending, modifying or reversing existing law and
- Factual contentions have or reasonably will have evidentiary support
Persons may be joined in one action as defendants if
1) any right to relief is asserted against them jointly, severally or in alternative w respect to or arising out of STO
2) a question of law or fact common to all D’s will arise in the action
when may witness obtain prior trial depo?
1) dead,
2)beyond 100 mile radius from place of trial,
3) unable to attend bc of age, illness, prison
4) party offering the depo could not procure witness’ testimony by subpoena or other extraordinary reasons
Are depos subject to the rules of evidence?
yes
Plaintiff may amend their complaint once as of
right without ct intervention….
What must P do to amend their complaint if they have already amended complaint as of right
ct may allow them to if justice so requires…not undue prejudice, delay, bad faith
Forum Defendant rule regarding removal can be waived if
P doesnt raise this issue within 30 days of removal
Court can remand on its own initiative even if party doesn’t remand within 30-day window if
requirements for diversity jurisdiction aren’t met bc SMJ can be waived at any time
Minimum contacts due process analysis: D may have sufficient min contacts with forum state where
1) they have purposefully availed themselves of the laws of the state such that they could reasonably foresee being sued there; and
2) Suing them in forum state comports w fair play and substantial justice
Fair play and substantial justice analysis
Ct determines facts would offend notions of fair play and substantial justice bc
1) interest of forum state in adjudicating matter
2) Burden on D in appearing
3) Interests of judicial efficiency
4) Interest of state in promoting common policies
Minimum contacts are
continuous, systematic, purposeful contact; ie. something to target Virginia
When is amount in controversy determined
on face of complaint
Cannot aggregate D’s counterclaim with P’s claim unless
1) it is compulsory or inseparable claim and it
2) arises out of STO
Remand: when can case be remanded for lack of smj?
any time before final judgment is rendered
Specific Jx
Personal jx Arising out of D’s contacts with VA
General JX
D is domiciled or has continuous systematic contacts with forum state
Employees Mim Contacts with VA
imputed to employer if acting within scope of agency/employement
Erie Doctrine: FQ jx
federal substantive and procedural law controls
Erie Doctrine
State substantive, federal procedural law applies
Erie Doctrine: Supplemental JX
state substantive law for state claim
When must service be made on D
within 90 days of filing
If a joined party objects to venue and joinder would make venue improper, ct must
dismiss that party
Counterclaims must be filed within
21 days of service
Cross claim must be filed within
21 days of service
Time period for filing impleader
filed at any time
How many oral depos may party have
10
question in interrogatories
25 related to non privileged matters
Time period for party who is served w request to produce documents to respond
30 days from service or 30 days from rule 26f conference
Once answers to request for admisssion are admitted, such statement is considered
conclusively established
A party who fails to appear or participate in pretrial or scheduling conference or fails to obey a resulting order, may be subject to
sanctions or ordered to pay reasonable expenses
When must motion for SMJ be filed
anytime until 30 days after close of all discovery;
nonmovant generally must be given sufficient opportunity to discovery
Can party withdraw jury trial demand without consent of other parties?
yes
Jury size
no more than 12
verdict must be unanimous returned by at least 6 jurors
Judgement as a matter of law
challenges the suffiiceny of the evidence in a civil jury trial
When can party move for judgment as a matter of law
before submission to the jury or after veridct and entry of judgment, party may renew their motion for judgment as a matter of law as a (judgment notwithstanding the verdict)
Ct’s view of evidence in judgment as a matter of law
light most favorable to nonmoving party and draw all reasonable inferences in their favor
When must party file their renewed judgment as a matter of law/ judgment not withstanding the veridct
no later than 28 days after entry of judgment
ct may allow judgment on verdict, order a new trial or direct entry of judgment as a matter of law
Court can relieve party from final judgment within reasonable time, not exceeding ___ from final judgment for ____
reasonable time not exceeding 1 year…
1) mistake
2) inadvertence, suprise, neglect
3) newly discovered evidence–not discovered through reasonable dilligence
4) fraud/misconduct
other party must respond within 21 days
Relief from judgment for newly discovered evidence comes by way of what kind of motion
motion to vacate
When must a notice of appeal be filed
30 days from entry of order, judgment, proceeding w district ct clerk
Choice of Law For Contracts: Parties can agree that law of particular state controls a K if
the transaction bears a reasonable relation to the state and also to another state or nation the parties may agree that the law either of this state or such other state or nation shall govern their rights and duties.
What law will fed ct sitting in diversity apply the choice of law rules where
the state it is sitting.
VA’s choice of law states that parties may agree that the law of a particular state can govern the parties’ rights and duties if that state bears a reasonable relation to the parties
An LLC’s domicile is determined by
every state its members are domiciled
Erie doctrine–state law is applied where
case arises under supplemental or diversity jx and law is substantive
When may court grant leave to amend a pleading
freely granted where justice so requires
Justice so requires means leave should be granted unless
there is a special reason not to do so, such as undue prejudice, delay, futility, bad faith
What is unfair prejudice concerning an amendment to a complaint
amendment involves additional incidents or parties beyond those already at issue in P’s complaint…would require additional discovery
What is undue delay
amendment not made as soon as grounds for defenses appeared
Affirmative defenses are treated as
fact matters, which are questions for a jury
Dollar amount for diversity is determined by the
legal certainity test.. whereby case will meet the requirement unless the ct can say to e legal certainty that P cant recover more than $75k
Transacting business in VA: single act sufficient?
transacting business requirement requires soley a single business transaction… D does not need to come to vA
WHen P files suit in the proper forum, presumption favor’s
P’s choice of venue.
When can ct enter sanctions for electronically stored evidence
if info should have been preserved in anticipation of litigation is lost bc a party failed to take reasonable steps to preserve it and it cannot be restored or replaced through additional discovery
Does a cross claim need to arise out of STO?
Yes
There is no amount in controversy or citizenship req if Ct has subject matter jx
Party must file impleader within
14 days of filing their answer unless Ct allows them to file late through leave of Ct
how many request for admission may party serve?
30
When must party respond to request for admission?
30 days
