Federal Civil Procedure Flashcards
1
Q
In federal court, the complaint must state:
A
1) grounds for subject matter jurisdiction;
2) a short and plain statement of the claim showing that the plaintiff is entitled to relief; and
3) a demand for relief sought
2
Q
What details are required in the federal complaint?
A
Plaintiff must plead sufficient facts to support a plausible claim
3
Q
How does a judge in federal court determine plausibility?
A
The judge uses her own experience and common sense
4
Q
How can a defendant challenge the complaint?
A
By making a 12(b)(6) motion to dismiss for failure to state a claim
5
Q
Which types of cases have special pleading requirements?
A
Fraud, mistake, and special damages
6
Q
What are the special pleading requirements for fraud, mistake, and special damages?
A
Must be pleaded with particularity or specificity
7
Q
How can a defendant respond to a complaint?
A
By motion or answer
8
Q
How long does a defendant have to file a response after being served process?
A
No later than 21 days to avoid default
9
Q
How long does a defendant have to respond if he waived service?
A
60 days from when the plaintiff mailed the waiver
10
Q
What are motions?
A
Requests for a court order
11
Q
When is a 12(e) motion for more definite statement used?
A
When complaint is so vague or ambiguous defendant cannot respond
12
Q
When is a 12(f) motion to strike used?
A
When a party wants the court to remove redundant or immaterial things from a pleading
13
Q
If not included in the response, these defenses are waived…
A
1) lack of personal jurisdiction
2) improper venue
3) improper service (problem w/ actual papers)
4) improper service of process
14
Q
When can lack of SMJ be raised?
A
At any time even on appeal
15
Q
When can the defense of failure to state a claim and failure to join an indispensable party be raised?
A
These motions can be made as late as at trial
16
Q
How long does a defendant have to serve her answer after her 12b motion has been denied?
A
14 days after notice of denial
17
Q
In its answer, a defendant may
A
1) admit some or all allegations;
2) deny some or all allegations; and
3) state she has insufficient knowledge to admit or deny some or all allegations
18
Q
What is the effect of the defendant stating she does not have sufficient knowledge to admit or deny some or all allegations in an answer?
A
It is treated as a denial, but she cannot do this if the answer to the allegation is in her control
19
Q
What is the effect of failing to deny an allegation?
A
It is treated as an admission except regarding the amount of damages.
20
Q
When the defendant asserts an affirmative defense, when is the plaintiff required to respond?
A
The plaintiff need not respond as the allegations in the defendant’s answer are deemed denied.
21
Q
When can the plaintiff amend her complaint as of right?
A
The plaintiff has the right to amend her complaint ONCE no later than 21 days after the defendant serves her first Rule 12 response
22
Q
When can the defendant amend her answer as of right?
A
ONCE no later than 21 days after serving her answer
23
Q
Can defendant include waivable defenses in his amendment as of right?
A
Yes, he has the right to amend his answer to include the “waivable defenses” and affirmative defenses.
24
Q
What must parties do if the time period to amend as of right has expired?
A
Party must seek leave of court or get written consent from the opposing party.
25
What factors do courts consider when deciding whether to allow a party to amend after the time period to amend as of right has expired?
1) length of delay
2) prejudice to the other party
3) futility of amendment
26
What does relation back mean?
You treat the amended pleading as though it was filed when the original pleading was filed, so it can avoid a statute of limitations problem.
27
When does an amended pleading "relate back"?
If it concerns the same conduct, transaction, or occurrence as the original pleading
28
When does an amended pleading "relate back" as to change a defendant?
1) the amendment concerns the same conduct, transaction, or occurrence as the original;
2) The defendant had such knowledge of the case such that she will be able to avoid prejudice; and
3) The defendant knew or should have known that, but for a mistake, she would have been originally named
29
Is there a right to file a supplemental pleading?
No. You must make a motion that is granted within the discretion of the court.
30
What does venue refer to?
Which federal court to file the case in
31
Where is venue proper?
1) residential venue: any district where all defendants reside; or
2) transactional venue: any district where a substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located
32
Where is venue proper for removal cases?
Venue is proper in the federal district embracing the state court where the action was filed
33
When deciding venue, does the location of the plaintiff's residence matter?
No
34
Where is venue proper if the defendant resides outside of the US?
Venue is proper in any federal district court
35
Where do Human defendants reside for venue purposes?
In the federal court where they are domiciled
36
Where do businesses reside for venue purposes?
In all districts where they are subject to personal jurisdiction for the case
37
What is transfer of venue?
When the case moves from one trial court in a judicial system to another trial court in the same judicial system
38
Which court is the transferor?
the original court
39
Which court is the transferee?
The court to which the case is sent
40
When might a court transfer a case to an improper venue?
When all parties consent and the court finds cause for the transfer
41
Why might a case be transferred from a proper venue?
Its more convenient for parties and witnesses and in the interests of justice
42
What private factors do the court consider when determining whether to transfer from a proper venue?
convenience - where defendants and evidence are found
43
What public factors do the court consider when determining whether to transfer from a proper venue?
1) what law applies
2) what community should be burdened with jury services
3) desire to keep a local controversy in a local court
44
When a diversity case is filed in a proper venue but the court orders transfer, the transferee court must apply the choice of law rules of the
transferor court
45
What is a forum selection clause?
A provision in which the parties agree that a dispute between them will be litigated in a particular place
46
In a diversity case that has been transferred, why would the transferee court use its own choice of law rules?
If the case was transferred to give effect to a valid forum selection clause
47
Would a federal court enforce a forum selection clause if the forum state would not?
Yes because federal laws govern transfers. A federal court may enforce a forum selection clause even though a state court in that forum state would not.
48
What factors are considered when there is a valid forum selection clause?
Only public interest factors:
1) what law applies
2) what community should be burdened with jury services
3) desire to keep a local controversy in a local court
49
When a diversity case is filed in an improper venue, and the court orders transfer, the transferee court must apply which choice of law rules?
Transferee applies it own choice of law rules
50
When does forum non conveniens apply?
When there is another court that has proper venue but the current court cannot transfer the case to that proper venue because it is in a different judicial system
51
What are the options for a court invoking forum non conveniens?
Dismiss or stay (hold in abeyance) the case
52
Which law applies in a diversity case if there is a relevant and valid federal law that directly conflicts with state law?
Federal law
53
How is the validity of Federal Rules of Civil Procedure determined?
They are presumptively valid if they are arguably procedural
54
If there is no valid and relevant federal law, a federal judge must apply state law if the issue to be decided is
substantive
55
What five issues are clearly substantive?
1) conflict (choice) of law rules
2) Elements of a claim or defense
3) statutes of limitation
4) Rules for tolling statutes of limitations; and
5) The standard for granting a new trial because the jury's damages award was excessive or inadequate
56
How do federal judges determine whether an issue is substantive?
1) Outcome determinative
2) Balance of interests
3) Avoid Forum Shopping
57
A federal court must have subject matter jurisdiction over every single
claim in a case
58
What are the steps to determining whether there is SMJ over a claim?
1) check for diversity of citizenship and federal question jurisdiction
2) If no diversity of citizenship or federal question jurisdiction, check for supplemental jurisdiction
59
What are the two steps to determining whether there is supplemental jurisdiction?
1) common nucleus test
2) does the limitation on use apply
60
What is the common nucleus test in regards to determining supplemental jurisdiction?
the claim we want to get in federal court must share a "common nucleus of operative fact" with the claim that satisfied federal SMJ
61
When is the common nucleus test always met?
When a claim arises from the same transaction or occurrence as the underlying case
62
What is the limitation on the use of supplemental jurisdiction?
In diversity cases, claims by plaintiffs generally cannot invoke supplemental jurisdiction.
63
What is the one exception to the limitation on the use of supplemental jurisdiction?
When there are multiple plaintiffs in a diversity case and the claim by one of them does not meet the amount in controversy
64
When would a court decline to add a claim with supplemental jurisdiction?
1) If the state claim is complex;
2) If state law issues would predominate the case; or
2) If the claim on which federal SMJ is based is dismissed early in the case
65
How is a new domicile established for purposes of SMJ?
1) physical presence in new state
2) intent to stay for the indefinite future
66
What is the "nerve center"?
The state in which the corporation's manager direct, coordinate, and control business activities. It is usually the site of the corporate headquarters
67
What is the citizenship for class actions?
The citizenship of the named representatives
68
Can a plaintiff aggregate her claims against a defendant?
Any SINGLE plaintiff may aggregate ALL of her claims against a SINGLE defendant.
69
Can you aggregate joint claims?
For joint claims you use the total value of the claim. The number of parties is irrelevant.
70
How is the amount in controversy determined in equitable relief cases?
1) From the plaintiff's viewpoint, does the relief requested have a value of more than $75K to the plaintiff; or
2) From the defendant's viewpoint, will relief requested by plaintiff cost the defendant more than $75K
71
What type of cases are excluded from diversity or alienage jurisdiction?
Divorce, Alimony, Child Custody, Probate
72
What is removal?
transfers a case from a state trial court to a federal trial court
73
How much time does a defendant have to remove a case to federal court?
No later than 30 days after service of the first paper that shows the case is removable. Usually that means no later than 30 days of service of process.
74
Who must join in removal?
All defendants who have been served with process
75
Do defendants have to join removal in the same document?
No, they can file separate notices of removal
76
What are the limitations to removing a case based solely on diversity of citizenship?
1) should not be removed if any Defendant is a citizen of the forum state; and
2) should not be removed more than one year after case was filed in state court
77
How does a defendant remove a case?
1. File "notice of removal" in federal court stating grounds for removal
2. Attach all documents that were served on her in the state action
3. Promptly serve a copy of the "notice of removal" on adverse parties
4. File a copy of the "notice of removal" in state court
78
What is the exception to the one-year removal limitation?
The case becomes removal when an in-state or non-diverse defendant is dismissed from the case
79
If plaintiff wishes to remand case based on reason other than lack of SMJ, how long does she have?
She must move to remand no later than 30 days after the filing of the notice of removal
80
If plaintiff wishes to remand case based on lack of SMJ, how long does she have?
There is no time limit.
81
What two documents does notice consist of in a regular lawsuit?
1) a summons
2) a copy of the complaint
82
What is a summons?
Formal court notice of suit and the timing for response
83
Who can serve process?
Any person who is at least 18 years old and not a party to the action
84
When must process be served?
Within 90 days of filing the complaint
85
What are the ways to serve process?
1) Personal Service
2) Susbstituted Service
3) Service on Agent
4) State Law Methods
86
What is substituted service?
Serving a substitute for the defendant
1) at the defendant's usual place of abode
2) with someone of suitable age and discretion
3) who resides there
## Footnote
The person does not have to be related to Defendant. This option is available even if personal service is available
87
Which state's method of service are permitted?
1) The state where the federal court sits and
2) The state where service is made
88
How can a business or organization be served process?
1) delivering to an officer or a managing or general agent
2) Using a state law method
89
How can a minor or incompetent person be served?
Only by a method permitted by the law of state in which service is to be made
90
What must a plaintiff include with the notice and request to waive service?
Must also include a copy of the complaint and two copies of a waiver form with a prepaid means of returning the form
91
How long does a defendant have to waive service of process?
30 days if Defendant is in US
60 Days if Defendant is outside of US
92
What must be true for **joinder**?
1. Joinder must be allowed by the federal rules
2. There must be SMJ over the case
93
Multiple plaintiffs or defendants may be joined if the claims
1) arise from the same transaction or occurrence; and
2) raise at least one common question of law or fact
94
# In regards to an absentee or necessary party,
What does necessary mean?
1) w/o the absentee, the court cannot accord complete relief among the existing parties;
2) The absentee's interest may be harmed; or
3) The absentee claims an interst that subjects a party to a risk of multiple obligations
95
Joinder of an absentee is feasible if
1) there is PJdx over the absentee; and
2) There will be federal SMJ over the claim by or against the absentee
96
# When it is not feasible to join an absentee,
What factors does the court consider when determining whether to proceed without the absentee or dismiss the entire case?
1) Is there an alternative forum available?
2) What is the actual likelihood of harm to the absentee?; and
3) Can the court shape relief to avoid that harm to the absentee?
97
What is an impleader claim?
One where a defending party is bringing in a new party (Third-Party Defendant "TPD") for indemnity or contribution
98
What is indemnity?
shifts liability completely so the TPD must cover the full claim
99
What is contribution?
Shifts liability pro-rata so the TPD must cover a pro-rata portion of the claim
100
Are impleader claims compulsory or permissive?
Permissive
101
Is there a right to implead?
Yes, within 14 days of serving an answer. After that, court permission is required.
102
What must defendant do to implead a TPD?
1) file a third-party complaint naming the TPD; and
2) have the third-party complaint formally served on the TPD
103
What is intervention?
When a nonparty brings herself into the case
104
When is intervention as of right?
If absentee's interest may be harmed if she is not joined, and that interest is not adequately represented by current parties
105
When is intervention permissive?
at least one common question of law or fact
106
When does interpleader apply?
If separate actions might result in double liabilty against a stakeholder
107
What is an interpleader suit?
Permits a person/stakeholder to require two or more adverse claimants to the stake to litgate among themselves to determine which, if any, has the valid claim to it.
108
What are the requirements for a class action?
1) Numerosity
2) Commonality
3) Typicality
4) Adequacy
5) Certification
109
# In regard to class actions,
What is numerosity?
too many class members for practicable joinder
110
# In regard to class actions,
What is commonality?
must be an issue common to all class members, so resolution of that issue will generate answers for everyone
111
# In regard to class actions,
What is typicality?
The class rep's claims are typical of the claims of the class
112
# In regard to class actions,
What is adequacy?
The class rep will fairly and adequately represent the class
113
What are the three types of class actions?
1) Prejudice
2) Injunctive or Declaratory Relief
3) Common Question or Damages
114
What must the court do when certifying a class?
1) define the class and the class claims, issues, or defenses; and
2) Appoint class counsel, who must fairly and adequately represent the interests of the class
