Federal Civil Procedure Flashcards
Waiver of Attorney-Client Privilege
A blanket or total waiver results only if (1) the waiver was intentional and (2) both the disclosed and undisclosed information concerns the same subject matter.
Eerie Doctrine
Under the Erie doctrine, federal courts are not allowed to create law to resolve state law claims or choose among states’ laws to decide the claims.
A federal court that has jurisdiction over a state law claim through diversity or by supplemental jurisdiction must apply the substantive law of the state where the court sits.
The federal court will always apply it’s own procedural (FRCP) laws.
“Relation Back” Doctrine; Adding a New Claim
When the plaintiff wishes to amend their pleadings to include a claim in which the Statute of Limitations has already run out, the “relation back” doctrine may save the day.
When the original pleading was filed before the SOL has run, and the plaintiff is trying to amend the pleading to include a new claim in which the SOL has already ran, the claim may “relate back” to the date of the original pleading if it arose out of the same conduct, transaction, or occurrence.
“Relation Back” Doctrine; Adding a New Defendant
If the new defendant got notice of the lawsuit within the time established for serving a complaint, and knew/should have known that, but for a mistake, they should have been sued, then a later amendment to add the “new” defendant will relate back, regardless of whether the statute of limitations has run.
AKA, if the defendant the plaintiff is trying to add had notice of the original lawsuit and knew or should’ve known that they should’ve been included in the first place, the new defendant can be added.
“Safe Harbor” Provision for Sanctions
Rule 11 has a safe harbor that allows the opposing party to withdraw or amend an offending pleading within 21 days after he is served with the motion for sanctions. I.e., the attorney can correct their mistakes before they are charged with sanctions.
Party seeking sanctions must serve the motion for sanctions, wait 21 days, and then file the motion for sanctions.
However, the COURT does NOT have to wait 21 days, and can serve sanctions sua sponte as long as they enter an order to show cause for why the sanctions should not be imposed, so that the attorney has an opportunity to be heard.
NOTE: Motions for sanctions can’t be combined with any other motion.
Sanctions, In General
THE COURT HAS BROAD DISCRETION IN IMPOSING SANCTIONS.
A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11.
The motion must be served on the opposing counsel, but it must not be filed or be presented to the court if the challenged claim/contention is withdrawn or corrected within 21 days after service. (Safe Harbor provision)
Deposition of Corporations
A corporation may be deposed. The corporation designates one or more persons whose answers will bind the corporation.
With respect to any deposition where the deponent is a party, the deposition is scheduled by serving a notice of deposition on all of the lawyers.
Failure to Prosecute
If a plaintiff fails to comply with a federal court order, the plaintiff puts itself in danger of dismissal for failure to prosecute (basically, when they take to long). Either the defendant or judge can move for a MTD based on failure to prosecute. Acts as a dismissal with prejudice/adjudication on the merits.
Whether a plaintiff failed to prosecute depends on three factors —
- Whether the plaintiff acted in a manner that deliberately or unreasonably delayed the matter;
- The amount of prejudice, if any, to the defendant; and
- The reason, if one exists, that sanctions short of dismissal would not suffice.
Long (intentional) delays are part of the inquiry, but the mere passage of time will not suffice.
Motions to Dismiss Which Can be Filed at ANY Time (Can’t be Waived)
- Lack of subject-matter jurisdiction,
- Failure to join a required party, and
- Failure to state a claim on which relief can be granted (12(b)(6)).
Motion for a More Definite Statement
Meant to give the defendant a clear statement of the claim so the defendant can adequately respond. The defendant must make this motion before filing a responsive pleading.
Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted
A pleading that states a claim for relief must contain:
(1) A short and plain statement of the grounds upon which the court’s jurisdiction rests and a statement of a claim, which, if true, would entitle the claimant to relief; and
(2) A demand of relief.
Importantly, the “short and plain statement of the claim” must include “sufficient factual matter” to state a plausible claim that is “more than a sheer possibility” that a defendant has acted unlawfully.
If either of these requirements are not met in the pleading, the ∆ can move for a 12(b)(6) motion to dismiss.
Renewing a Request for a Jury
If a party has expressly demanded a jury trial in accordance with state law prior to the case being removed to federal court, the demand need not be renewed after removal.
“Home State Defendant” Rule
A defendant cannot remove a case from state to federal court if subject-matter jurisdiction would be grounded only in diversity jurisdiction and the defendant is a citizen of the state where the plaintiff originally filed suit in state court.
Protective Order Limiting Discovery
The court may issue an order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense.
May include requests that would amount to an unreasonable intrusion into a party’s privacy, such as an extensive list of sexual partners, for example.
Settling a Class Action
Parties seeking approval of a settlement of a class action must file with the court a statement that identifies any agreement made in connection with the proposed settlement, including agreements to compensate named representatives separately.
If named reps. are being compensated separated, the court needs to consider this as it decides whether the settlement is fair and reasonable to the class.
What defenses must be raised in the original answer/motion, or else are forfeited?
- Lack of personal jurisdiction,
- Improper venue,
- insufficient process, or
- insufficient service of process
Demand for a Jury
The 7th Amendment includes the right to a jury trial. To invoke the right, a party must serve a written demand onto the other party no later than 14 days after the final pleading. The written demand can be included in the complaint.
Must specify which issues they want a jury for, if they don’t, a jury will preside over all issues.
A party waives their right to a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.
Subpoenas
Allows you to acquire discovery from non-parties.
Subpoena Dueces Tecum: A demand for documents from a non-party.
Subpoena Ad Testificatum: A demand for testimony from a non-party.
The person served may object as outside the scope or if it requires them to travel more than 100 miles to the courthouse has the crow flies.
A party who wants to depose a non-party must give reasonable written notice to every other party. Each party is entitled to attend any deposition and ask questions on cross-examination.
Right to a Jury Trial
The 7th Amendment guarantees a right to a jury where monetary relief (not injunctive relief) is sought. “The right to a trial by jury in suits at common law in amounts of controversy exceeding $20.”
If a claim is for both injunctive relief and monetary damages, the right to a jury exists for the entire underlying fact dispute.
A demand for a jury trial must be made within 14 days of the final pleading.
Depositions
A party may depose up to 10 witnesses. May be used before a lawsuit is filed if the other party has the opportunity to be present.
A party who wants to depose a non-party must give reasonable written notice to every other party. Each party is entitled to attend any deposition and ask questions on cross-examination.
Requests for Production
Documents, tangible items, or access to evidence may be requested in discovery. The other party has 30 days to respond, and must provide the item as they are maintained in the usual course of business.
If the requested item is electronically stored information, they must be presented in a reasonably usable form as it is maintained.
3 Ways to Establish Subject-Matter Jurisdiction
- Federal Question Jurisdiction
- Diversity Jurisdiction
- Supplemental Jurisdiction
Subject-matter jurisdictions is necessary for every claim.
Service of Process
Process must be served with both the complaint and summons within 90 days of filing. If process is not served within 90 days of filing, the court may dismiss without prejudice.
Anyone older than 18 who is not a party may serve.
Delivery can be made to either:
- ∆ in person;
- A person of suitable age of discretion who lives at the ∆’s abode;
- The ∆’s registered agent;
- Mailed, along with a letter requesting the ∆ to waive in-person service.
Clearly Erroneous Standard of Appellate Review
Governs questions of FACT. A court will affirm unless a clearly erroneous mistake of fact was made that was not a “harmless error”. Highest level of deference to the lower court.
Under the harmless error standard, if the appellate court finds that the lower court’s actions were clearly erroneous, then they must also establish that the party’s substantial rights were also harmed, otherwise the decision will not be reversed.
Venue
Venue is dictated by the (1) residency of the ∆s, the (2) location of events, or (3) where at least one ∆ is subject to personal jurisdiction.
Where both ∆s are in the same states, then venue is proper where any one ∆ resides.
If the ∆s reside in multiple states, then venue is proper at the location of the harm.
When Can You Transfer Venue
Venue can be transferred upon (1) agreement, (2) convenience, (3) in the interests of justice, or (4) under forum non conveniens.
(1) When all parties agree to transfer (even if they all agree to transfer somewhere it would be normally not allowed).
(2) If the case could have been filed in another court originally and transfer would be necessary for the convenience of the parties and witnesses.
(3) If the case was filed in an improper venue the court can dismiss OR transfer.
(4) If the most convenient forum is not in the U.S., the court will dismiss without prejudice so the ∆ can refile in the other country.
Serving a Corporation
A corporation can be served by either (1) delivering to an officer of the corp., (2) delivering to a manager or general agent, or (3) delivering to any other authorized agent.
Citizenship for Unincorporated Associations
Unincorporated associations are citizens of every state in which a member is a citizen — even if that is all 50 states.
Unincorporated associations include LLCs or unions.
Default Judgment
When the π serves the ∆, but the ∆ does not respond.
First, the clerk will file the default. Then, default may be entered by the court.
A clerk may enter default judgment only when the amount sought is a sum certain and the defaulting party has failed to appear.
Sum Certain: An amount of money that is certain by computation that it belongs to you, and the clerk does not have to weigh any evidence as to that fact.
Citizenship for Corporations
Corporations are citizens of the state in which they were incorporated and their principal place of business (“nerve center” test).
Enforcement of Discovery
Discovery can be enforced by either a motion to compel or sanctions. To file a motion to compel, the party must have made a good faith effort to confer or attempt to confer with the resistor.
Requests for Admission
The request to admit or deny a fact. A party has 30 days to respond, but can object to questions outside of the scope of discovery.
If a party doesn’t know enough information to admit or deny, they must say that they have at least made a reasonable attempt to ascertain the truth but still they lack the information to admit or deny.
Permissible Counterclaim vs. Compulsory Counterclaim
A permissive counterclaim does not arise out of the same transaction or occurrence, and is therefore not required to be brought.
A compulsory counterclaim does arise out of the same transaction or occurrence, and therefore must be brought or the claim is forfeited.
De Novo Standard of Review
Regarding questions of law. Zero deference given to the lower court; addresses the legal issue as if it has never been addressed.
Preliminary Injunction
OBJECTIVE: To preserve the status quo.
Will be entered if:
- There is a likelihood of success on the merits.
- A threat of irreparable harm.
- The balance of hardships is in favor of the π.
- The injunction would not be injurious to the public interest.
- The party seeking an injunction has paid security.
HELP
- Harm
- Evaluation of hardships
- Likelihood of success on the merits
- Public policy/feasibility of court supervision
If granted, the issue must be tried within 6 months unless agreed to otherwise.
Temporary Restraining Order
To secure a TRO without notice, the π must show an immediate risk of irreparable harm.
Only last long enough for the court to consider and resolve a request, but no longer than 14 days.
Considered to be stopgap measures until the court decides whether to grant a preliminary injunction.
Methods of Discovery
- Interrogatories;
- Requests for admission;
- Requests for production;
- Requests for mental or physical exam;
- Depositions;
- Subpoenas.
Motion to Dismiss
MTD must be filed either before the answer, within 21 days of the answer, or within 60 days of the answer if service was waived.
Grounds for a MTD:
1. Lack of subject-matter jurisdiction. (Can never be waived)
2. Lack of personal jurisdiction. (Waived if not in first motion/answer)
3. Improper venue. (Waived if not in first motion/answer)
4. Insufficient process. (Waived if not in first motion/answer)
5. Insufficient service. (Waived if not in first motion/answer)
6. Failure to state a claim upon which relief can be granted. (Must be brought before trial ends, or waived)
7. Failure to join an indispensable party. (Must be brought before trial ends, or waived)
Summary Judgment
FRCP 56(a) allows a summary judgment motion to be granted only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
A motion for SJ may be supported by depositions, documents, ESI, affidavits or declarations, admissions, interrogatories (anything besides the pleadings).
The moving party must prodice evidence to show that there is no genuine issue of material fact. Burden then shifts to the nonmoving party, who must produce evidence to show that there is a GIMF.
Motion is viewed in the light most favorable to the nonmoving party.
Summary judgment motions must be made any time before 30 days after discovery closes. (So can be made during discovery)
Scope of Discovery
Parties are permitted to discover any non-privileged information that is relevant to the claim or defense, regardless of if it will be relevant at trial.
Discovery must be proportional to the needs of the case, considering the importance of issues, amount in controversy, parties’ access to the information, resources, and whether the burden or expense of discovery would outweigh the benefit.
Non-testifying expert reports are generally un-discoverable without extraordinary need.
Only with a court order may a party discover unprivileged information that is relevant to the subject matter of the case but not to any existing claim or defense.
Interrogatories
Up to 25 questions may be submitted to the other party, in writing, to seek facts or contentions. The other party then has 30 days to respond.
Mandatory Initial Disclosures
Within 14 days after the Rule26(f) scheduling conference, you must provide the name and contact information of:
- All witnesses and/or parties who may have discoverable information,
- Documents,
- ESI,
- Tangible documents,
- A computation of damages, and
- Any insurance agreements.
Mandatory Expert Disclosures
If the expert is one who has been retained/paid to provide expert testimony, or whose employment regularly involves giving expert testimony, they must be disclosed at least 90 days before trial along with their written expert report, which must include:
1. All opinions they will testify to;
2. All facts and data considered in making their opinion;
3. Any exhibits to be used;
4. Expert’s qualifications;
5. All cases in the last 4 years that they’ve testified in;
6. A statement of compensation.
If the expert is not specially hired to make an expert opinion, and expert report is not required, and they must only disclose:
1. The subject matter on which they will testify to; and
2. A summary of the facts and opinions that they will testify to.
Mandatory Pretrial Disclosures
At least 30 days before trial, you must provide a list of witnesses, witnesses that may be called if need be, any testimony that will be given via deposition or transcript, and all physical documents or other evidence that plans to be admitted.
