Federal Flashcards
3 types of SoR for appals
De Novo, clearly erroneous, abuse of discretion
De Novo standard
On rulings and conclusion of law
Clearly Erroneous standard
Deferential standard and applies to findings of fact
Abuse of Discretion standard
HIGHLY deferential standard, applies to determinations of trial judge like discovery
Collateral Order Doctrine
Doctrine allowing appeals of an interlocutory order (not a final judgment) so long as those rulings conclusively decide an issue separate from the merits of the case and would be effectively unreviewable after final judgment.
Interlocutory Appeals
If it denies or grants a preliminary injunction, it is immediately appealable
Certification
Controlling law where substantial ground for difference of opinion.
Scope of Discovery - Federal
relevant to a claim or defense of a party, not subject to privilege, not be so cumbersome or expensive to produce that its value outweighed by expense. Information is discoverable so long as it is reasonably calculated to lead to admissible evidence
Limit to discovery Qs -
25 interrogatories federal, 50 in state.
Mandatory Discovery - federal
1) Identify location, name, addy of anyone w/discoverable information 2) copy or description of all documents including electronic sources that can be used by that party to support its claim or defense 3) damages how how they were computed 4) information regarding insurance covery the claims
NOT Mandatory Disclosure for discovery - Fed
Experts unless going to be used
Rule on Experts - Federal
1) Disclose if going to use them - within 90 days from trial 2) Written report to include expert’s opinion, what he used, any exhibits, qualifications, and publications from last 10 years, and previous trials testified in.
Personal Jurisdiction reach
Federal court can reach as far as state court can
How to get In Personam - Federal
Relationship with the state (domiciled, tag jurisdiction), where there is consent or waiver (express, implied consent, waiver of defense), or based on contacts
Federal In Personam Jurisdiction - Contacts
1) General Jurisdiction: where the contacts are so continuous and systematic that you can be sued in that state no matter where cause of action arose. 2) Specific Jurisdiction: long arm statute which must be constitutional. a) minimum contacts: if just one contact is related to the cause of action, and that caused harm in the forum state, AND that contact was purposeful (purposeful availment of the benefits of forum state). b) fair play and substantial justice to give or take away jurisdiction.
Federal In Rem Jurisdiction
Court asserting jurisdiction over something. Court must seize it unless it is too big or intangible
Quasi In Rem - Federal
Gaining jurisdiction over a person through their property which has no relation to the cause of action. This is constitutional only when Defendant would be subject to minimum contacts
Subject Matter Jurisdiction - generally
Can the federal court hear it? Federal Question 1331. Diversity: 1332. Supplemental: 1367
Federal SMJ - Fed Question
1331 - does the cause of action arise under federal law or Constitution. Is it really through a federal law or the well pleaded complaint rule, or if state law cause of action turns on the federal law
Federal SMJ - - Diversity
1332 - Over $75k, and complete diversity required: no citizen on either side of the v in the same state. Can have multiple claims on same defendant, not multiple P on 1 defendant.
Federal SMJ - Supplemental
1367 - multiple claims on defendant and some can’t survive in federal court on their own. Step 1: same case or controversy? If not, then no supplemental. If yes, then Step 2: is the sole basis for jurisdiction in diversity? If no, then federal question exists and okay. If yes, then P is using supplemental to get around amount in controversy for complete diversity req (regarding THAT CLAIM) and no supplemental jurisdiction is permitted. Even if Supp Juris exists, court NOT required to hear it.
Personal Jurisdiction - federal - Corporate citizenship
Corps domiciled where incorporated and also where they have principle state of business.
Personal Jurisdiction - Federal - domicile
Where the person last resides with intent to remain indefinitely
Pleading - federal - requirements
BD Jr
must have 1) Claim for relief 2) statement of claim of jurisdiction 3) short and plain statement regarding basis for claim (must plead specific facts for a plausible claim), and 4) demands for relief.
Federal - threshold defenses
12b2-5 if not made in motion to dismiss prior to answer, or in the answer, then lose them.
12b1-7
1) lack of SMJ 2) lack of PJ 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 under 19
Federal Rule 11
1) not being presented for improper purpose (like harass, delay, or cause unnecessary expense) 2) claims or defenses or other legal contentions are warranted by existing law or nonfriv argument to change existing law 3) factual contentions have evidentiary support, or will have it upon further investigation 4) denials of factual are warranted on the evidence or based on belief, or lack of info
Joinder - federal
Rule 19 - can include as many claims on Def whether related or not, but must have basis for fed court in each one. Doens’t require it, but be more than just efficient/convenient. Key is prejudice to absent party - which likely to occur if equitable relief is sought.
Can do so in order to ensure proper relief. Or if failure to join would impair interest, or be liable for greater obligations
Interpleader - federal rule
Where stakeholder is permitted to join multiple parties. Can lack common origin Or Plaintiff can deny liability to the other parties. Defendants can interplead through cross/counter claims.
Interpleader - statutory federal
Stakeholder can join all adverse claimants, with minimal diversity: $500 amount minimum and nationwide service of process. Venue is proper where ANY claimant resides.
Removal
Where it goes from state TO federal. 1) If based on federal question: okay to remove. 2) if could have been brought in federal based only on diversity: will NOT be removed if Defendant is in located in the state where case brought originally (home state rule) 3) All defendants must agree to removal 4) 30 days to remove after service, or after amends and adds a federal question. 5) If diversity occurs during case, can’t be removed if pending for more than one year
Remand
Will only remand if removed improperly
Habeus corpus
will be heard if Reason for confinement is defective: through due process under 4th amendment, 5th amendment, double jeopardy, and cruel and usual punishment.
Proper Venue - Federal
1) in a district ANY defendant resides if all Def in same state 2) in any dist. where substantial part of events giving rise to the claim occurred 3) if diversity and no other district to bring it, wherever any Def is located 4) if Fed question: where any Def can be found 5) if Aliens - any district
Venue Transfer - Federal
For convenience of the parties and interest of justice and could have been brought in other district. Law of original forum follows if properly filed. Burden on Defendant
Forum Non Conviens - federal
If there is a substantially better forum and the current forum causes a serious inconvenience, result is DISMISSAL and not transfer
Erie Doctrine
If the court sits in diversity or supplemental jurisdiction AND different from way state court and federal court would handle things. Is the difference in substantive or procedural law? 1) If clearly substantive - look @ fed statute. If no statute, then look at what state court would do - it applies substantive state law. 2) if covered by FRCP, then it’s procedural and use FRCP even if it changes result 3) If procedural not covered by FRCP statute, or CONX provision, then balance the interest.
Affirmative Defenses - Fed
AFRAID:
accord and satisfaction, fraud, res judicata, assumption of risk, illegality, duress etc etc
Federal Depo Rule
Absent party consent/court order
1) only 10 depos allowed
2) none may span more than a day
3) none can last more than 7 hours.
