Federal Civil Procedure Flashcards
1
Q
Pullman abstention
A
Resolution of a state law court would eliminate need to decide federal constitutional issue
2
Q
Burford abstention
A
Avoid interference with complex state regulatory scheme or matter of great importance to state
3
Q
Younger abstention
A
Avoid enjoining criminal activity or akin proceedings
4
Q
Colorado River abstention
A
Abstain to encourage unitary adjudication of issues
5
Q
well-pleaded complaint rule
A
FQ JX on face of complaint, not anticipated defenses
6
Q
exceptions to diversity jurisdiction
A
- probate and domestic relations
- interpleader (only 2 claimants need be adverse)
- CAFA
- Multiparty, Multiforum Trial Jurisdiction Act
7
Q
Jurisdiction under Multiparty, Multiforum Trial Jurisdiction Act
A
Only one plaintiff need be diverse from one defendant if 75 victims from single accident at discrete location AND
- Defendant resides in a state different from where substantial part of accident occurred,
- two Ds in different states; OR
- accident took place in different states
8
Q
When must a court abstain under MMTJA?
A
- Substantial majority of all plaintiffs are citizens of same state as primary defendants
- Claims are primarily state law of that state
9
Q
Amount in controversy for diversity?
A
- exceeds 75k
2. good faith standard
10
Q
When can plaintiffs aggregate claims for the amount in controversy requirement?
A
- if the plaintiffs are enforcing a single title or right in undivided interest
- If class actions (CAFA) or if representative plaintiff has enough and others come in through supp jx
11
Q
When is a counterclaim compulsory?
A
Same transaction or occurrence
12
Q
Does assignment of claims affect diversity?
A
Yes; assignee is now the determinative factor
13
Q
Do substituted parties affect diversity?
A
Substitution due to death or incompetence does not affect diversity, but does when replacing the wrong party
14
Q
Supplemental JX in diverse cases
A
- common nucleus of operative fact
2. Plaintiff cannot bring supplemental claim against non-defendants
15
Q
When can a court decline supplemental jx?
A
- Novel or complex state law
- supplemental claims substantially predominate over claims within original federal JX
- OJX claims dismissed
- Exceptional circumstances
16
Q
Specifc persons or claims for removal?
A
- Suits against US or officers
- Suits against federal employees for motor vehicle injuries
- any action where a party asserts a claim based off patents, plant variety protection, or copyrights
- international banking
17
Q
Statutory prohibitions on removal?
A
- Federal Employers’ Liability Act and Jones Act (RRs)
- Carriers where amount does not exceed 10k
- Workers’ comp
- Violence Against Women Act
18
Q
When must a notice of removal be filed?
A
30 days after service
19
Q
What must a notice of removal contain?
A
- Rule 11 signature
- Filed in the district court and division where the state action is pending
- accompanied by process, pleadings, and orders sought to be removed
20
Q
When must defendants consent to removal?
A
- When properly joined and served
2. If FQ, only if claim is asserted against them.
21
Q
When must a party demand a jury after removal?
A
If not already demanded, 14 days after filing (D) or notice (P)
22
Q
When can a party move to remand a removed action?
A
If SMJX, at any time.
If removal defect, within 30 days.
23
Q
When are attorneys’ fees available for removal?
A
When removal was objectively unreasonable.
24
Q
When is a remand order reviewable on appeal?
A
- Civil rights cases
2. class actions, if appealed not more than 10 days after remand order
25
When does the bulge provision apply?
1. Third party defendants joined under Rule 14
| 2. Required parties under Rule 19
26
When can a court exercise jurisdiction over a non-US resident who has no contacts with any particular state?
1. Claims based on federal law
2. No state court can exercise pjx over D
3. D has minimum contacts with US as a whole
27
Personal jurisdiction standard
1. Minimum contacts
2. Purposeful availment
3. Fair play and substantial justice
28
When can a subsidiary create pjx over a parent?
Alter ego or agent
29
What are the pjx factors for fair play and substantial justice?
1. Forum state interest
2. Burden on D
3. Interest of judicial system
4. Shared interest of states in common social policies
30
Where is venue generally proper?
Any of:
1. Where any defendant resides
2. Where substantial part of events/property
3. if none, then wherever a D is subject to pjx
Non-US residents can be sued in any judicial district
31
Where is venue proper against a federal official?
1. D resides or substantial events
| 2. P resides, if no real property involved
32
Where is venue proper under the Federal Tort Claims Act?
Where the P resides or the place of the event
33
Where is venue proper against a foreign state?
Where substantial part of events occurred, or substantial property, or DDC
34
Where is venue proper under the Multiparty, Multiform Trial Jurisdiction Act?
where any D resides or where substantial part of accident took place
35
When is a 1404 transfer proper?
1. Convenience of parties
2. Interests of justice
If it's improper (1404(b)), forum law does not transfer
36
When is a forum selection clause unenforceable?
Presumed valid. Can be set aside if:
1. Unreasonable and unjust
2. Invalid
37
forum non conveniens
Factor test:
1. Availability of alternative forum
2. Applicable law
3. Location of parties, Ws, and evidence
38
Erie test
1. Conflict between state and federal law?
2. Valid federal statute or rule?
3. If not, is state rule is outcome determinative?
4. If so, are there countervailing federal interests requiring federal common law?
39
Are statute of limitations substantive or procedural?
Substantive
40
Is the burden of proof substantive or procedural?
Substantive
41
Who may effect service?
Anyone who is at least 18 years old.
42
How is service generally made?
Any of:
1. Apply service rules of forum state
2. Personal service or on authorized agent
3. Leaving summons at D's usual place of abode with a person of suitable age and discretion
43
How is service made on the US?
1. Deliver to US Attorney of district
2. copy by registered or certified mail to US AG;
3. and, if challenging an order of nonparty agency or officer, to agency or officer
44
How is service made on US agency, officer, or employee?
1. Serve US (see rules)
| 2. Copy by registered or certified mail to agency, officer, or employee
45
When can a TRO issue without notice?
1. Written oath establishing immediate and irreparable harm before a hearing
2. Attorney certifies any efforts made to give notice and reason why notice should not be required
46
What must a TRO state?
1. Date and time issued
2. Irreparable harm
3. Reasoning for ex parte issuance
47
Preliminary injunction test
1. Likelihood of success
2. Irreparable harm
3. Balance of equities
4. Public interest
48
What must a complaint include?
1. Short and plan statement of SMJX
2. Short and plain statement of claim
3. Demand for judgment
49
When must a complaint be served on defendants?
90 days of filing
50
When must a defendant respond to a complaint?
21 days
51
12b6 standard
1. Identify and reject conclusory allegations
| 2. Assume the truth of well-pleaded allegations
52
When must an answer be served after disposition of MTD?
14 days
53
When can a party amend as of right?
1. 21 days if no responsive pleading is required
| 2. 21 days of service of responsive pleading/motion
54
When do amended pleadings relate back for a new party?
1. Claim arises out of the same transaction or occurrence
2. New party received notice within 90 days of original complaint AND
3. party knew or should have known he would have seen sued but for a mistake of identity
55
What does Rule 11 require?
1. Signature by attorney of record
| 2. Certified reasonable investigation and reasonable arguments
56
When can a party be permissively joined under Rule 20?
1. Plaintiffs assert right to relief jointly, severally, or in the alternative out of same transaction or occurrence
2. Common question of law or fact
57
Allapattah rule
Plaintiffs joined under Rule 20 with claims arising from the same transaction or occurrence can bring supplemental claims even if one plaintiff does not meet the amount in controversy
58
When must a party be joined as necessary under Rule 19?
Any of:
1. Complete relief cannot be provided without him
2. Disposition without him would impair interests
3. Substantial risk of inconsistent obligations
59
What factors should a court consider when dismissing a case for failure to join a necessary party?
1. Risk of prejudice
2. Ability to avoid prejudice
3. Adequacy of a judgment without them
4. Availability of remedy for plaintiff if dismissed
60
When can a party intervene as of right under Rule 24(a)?
1. Interested
2. Practical risk of impairment, AND
3. No adequate representation
61
When can a party permissively intervene under Rule 24(b)?
Any of:
1. Conditional statutory right to intervene;
1. Claim or defense has common question of law or fact
62
What does a court consider when assessing the timeliness of intervention?
Balances length of time before moving to intervene with risk of prejudice to parties and intervenor
63
When is proper to interplead a party?
When there is a risk of exposing a plaintiff to double or multiple liability
64
What are the jurisdictional requirements for federal statutory interpleader?
1. At least two adverse claimants are citizens of different states
2. $500 or more in controversy
65
Rule 23(a) requirements
1. Numerosity
2. Commonality
3. Typicality
4. Adequacy
66
Rule 23(b) requirements
1. Risk of prejudice of separate actions
2. Final equitable relief
3. Predominant questions of law or fact
67
CAFA requirements
1. 100 or more members
2. defendants are not states, officials, or other government entities
3. Not securities or internal affairs cases
4. $5M or more
5. minimum diversity
68
When must a court repudiate CAFA jx?
Any of:
1. Primary injuries in state where action filed
2. 2/3+ of plaintiffs are in-state (discretionary if 1/3 to 2/3)
3. significant relief sought against in-state D
69
Rule 26 mandatory disclosures
1. Names and, if known, address and telephone of individuals with discoverable information
2. Copy of all documents that the disclosing party has in possession and may use to support its claims or defenses, except impeachment evidence
3. Computation of damages by the disclosing party and materials on which it's based
4. Applicable insurance agreements
70
When are expert disclosures due?
90 days before trial (30 if rebuttal)
71
When are pretrial disclosures due?
30 days before trial
72
When are initial disclosures due?
14 days after Rule 26(f) conference
73
What proceedings are excluded from initial disclosure requirements?
1. Administrative reviews
2. Federal forfeitures in rem
3. Habeas
4. pro ses in custody of government
5. subpoena proceedings
6. Benefit recovery
7. Student loan
8. Ancillary proceedings
9 Arbitration awards
74
What must an expert report contain?
1. Complete statement of and basis for all opinions
2. Facts or data relied on in forming
3. Exhibits used as support
4. Expert qualifications
5. Listing of author's publications in past 10 years
6. Expert compensation
7. Other cases in past 4 years
75
What must be provided in pretrial disclosures?
1. Name and address/telephone for each witness, separately identifying who they will call and may call
2. Witnesses to be presented by deposition/designation
3. identification of each document or exhibit, with a will/may use distinction
76
When are objections to pretrial disclosures due?
14 days after the disclosures are made
77
By when must parties meet and confer before a 16(b) scheduling conference?
At least 21 days before
78
Who can depositions be served on?
Any party or nonparty witness.
79
How many depositions can be sought without court leave?
10
80
How many interrogatories can be served?
25
81
Who can interrogatories be served on?
Parties only
82
Who can requests for the production of documents be served on?
Parties or nonparties via subpoena
83
How many days are there to respond to interrogatories, RFPs, or RFAs?
30 days
84
Who can Rule 35 examinations be sought against?
Parties if their mental or physical condition is in controversy.
85
When can a deposition be used for any purpose at trial?
1. Witness is dead
2. Witness is more than 100 miles from the trial
3. Witness cannot attend or testify because of age, illness, infirmity, or imprisonment
4. Witness unavailable by subpoena
5. on motion and notice, exceptional circumstances
86
What factors can a court consider for setting aside a default?
1. Willfulness
2. Prejudice to plaintiff
3. Meritorious claim
87
When may a party file an MSJ?
Any time until 30 days after the close of all discovery
88
How many jurors are required by the FRCP?
At least 6, no more than 12.
89
When may a party file a renewed JMOL?
no later than 28 days after entry of judgment or (for jury issue not decided by verdict) after jury discharge.
90
When can a motion for a new trial be filed?
No later than 28 days after entry of judgment
91
When can a party relieve a party from final judgment?
Within a reasonable time and no later than one year following the entry of the judgment or order for
1. Mistake, inadvertence, surprise, or excusable neglect
2. Newly discovered evidence that couldn't be found with reasonable diligence
3. Fraud, misrepresentation, or misconduct
or ay any reasonable time where a judgment is void, satisfied or discharged, vacated, or any other just reason
92
When must a notice of appeal be filed?
within 30 days after order is entered
93
What motions toll the appeal deadline?
1. Renewed JMOL
2. amend or make additional findings
3. amend or alter the judgment
4. New trial
5. alter or relief from judgment
6. attorney's fees, if court orders it will extend time to appeal
94
What appeals are available as of right?
1. Injunctions
2. Receiver orders
3. rights and liabilities in admiralty cases
95
What is the collateral order doctrine?
Discretionary appellate review if order:
1. Conclusively determined disputed question
2. Resolves important issue completely separate from merits
3. Effectively unreviewable on appeal from final judgment
96
What law governs the claim preclusive effect of a federal court judgment sitting in diversity?
Forum state (Semtek)
97
Res judicata
1. Valid final judgment on the merits
2. Same transaction or occurrence
3. Same parties or privies
98
Collateral estoppel
1. Same issue
2. Actually litigated
3. Final, valid judgment
4. Essential to the judgment
99
Exceptions to general rule against non-party preclusion
1. Agreement
2. Substantial legal relationship
3. Adequately represented by someone with same interests (R23, etc.)
4. Assumed control over case
5. Relitigating with proxies
6. Constitutional statutory schemes
100
When can the court impose Rule 11 sanctions?
1. On motion
| 2. Sua sponte with OTSC
101
When can a party implead a party?
File third-party complaint within 14 days of service of answer or with court leave
102
When can a party voluntarily dismiss a cross claim without court approval or consent?
Before a responsive pleading is served, or, if no responsive pleading, before evidence is introduced
103
Where is venue proper under the Federal Tort Claims Act?
In either the judicial district where the plaintiff resides OR in the judicial district where the act or omission occurred
104
Can a plaintiff bring a suit against a federal officer in the district in which the plaintiff resides?
Yes
