Federal Civil Procedure Flashcards
How do you analyze a PJ problem?
- Does it satisfy statutory guidelines?
(a) D was present in forum state
(b) D was domiciled in forums state
(c) D gave express or implied consent
(d) Long arm statute such as served with process in forum state.
MORE IMPORTANTLY FOR BAR EXAM
- Does D have sufficient minimum contacts
(a) Contact = purposeful availment and foreseeability.
(b) Relatedness
(i) Specific Jurisdiction - Arises from D’s contacts
(ii) General - D is essentially at home. For an individual this means domiciled. For a corporation this means state of inc. or ppb.
(c) Fairness - Specific PJ Only. Consider
(i) Severe burden on D and witnesses (but not wealth related).
(ii) The state’s interest in giving their own plaintiffs a forum.
(iii) P’s interest in suing at home (he may be injured after all).
How do you analyze a SMJ problem?
- Federal Question? - Does Plaintiff raise a claim under federal law/looking to enforce a federal right?
- Is there diversity?
(a) Complete Diversity
(i) Citizens of different states
(ii) Citizens of a state versus citizen of a foreign state (unless perm. res. domiciled in same state as opposing party)
(b) Amount EXCEEDS $75,000. Includes all claims by ONE P v. ONE D (or joint claims), but not interest and costs unless the claim is for interest. Whatever P puts in the complaint is taken on good faith unless it is clear to a legal certainty that it will not be $75,000 (like relying on punitive damages in a K case). If equitable relief is sought ask either whether compliance would cost over $75,000. - (For additional claims) Supplemental Jurisdiction?
(a) Always start by testing whether the supplemental claim meets FQ or Div. If so, there is SMJ.
(b) If not ask if there’s a CNOF, that is, the same T/O.
(c) Next ask if the additional claim is asserted by a P, in a diversity case. If so, you cannot invoke Supp. J unless it’s like hypo #4 on page 17 where one P1’s claim meets diversity jurisdiction, but not P2’s due to the damages being less than $75k. Both claims were same T/O so in this limited set of facts, P2 can piggy back onto P1.
What cases can state courts simply not hear?
What cases can federal courts simply not hear?
State courts will not hear:
Patent infringement
Bankruptcy
Some federal securities and anti-trust laws
Federal court will not hear Divorce Alimony Child Custody Probate
How does one establish domicile?
Individual - Physical Presence + Intent to make permanent home. Ind. only gets 1.
Corp.’s domicile is state of inc. and ppb (it’s nerve center, HQ, place from where the Corp. directs corporate activities). (2 domiciles).
Partnership or LLC’s domicile is all of the places in which the partners or members (including limited partners) are domiciled.
Who and how can a case be removed from state to federal court?
Only D may remove from a state court to federal court (remember “transfer” is different).
Process:
1) Within 30 days of service (not filing)
2) Does it meet diversity or FQ?
3) Does an exception apply
(a) Instate D rule prevents D from removing if it diversity is the basis for removal and one of the D’s is in his state of domicile. (see page 19). If that D is later dropped, can remove within 30 days.
(b) No removal more than one year after the case was filed in state court.
4) File a notice of removal in federal court, stating the grounds for removal and SMJ. If sum is not over $75,000, D can attempt to show that the amount actually exceeds $75,000.
5) File a copy of the notice of removal in state court.
6) P may seek to remand within 30 days of the removal notice being filed, unless P is alleging lack of SMJ, in which case, he may allege that anytime.
Notes
You must remove to the federal court that “embraces” the state court where the case was filed. E.g. Case filed in LA County Court, removed to USDC SD of CA.
What is the Erie Doctrine?
If case is in federal court under diversity, federal court follows federal procedural rules, state substantive rules.
But Tom! How do I know the difference? I’ll tell you.
1) Is there a federal law or rule on point?
2) Is the law valid?
3) If yes, then apply the federal law.
FRCP on point will always control.
4) If no federal law is on point, is the issue procedural or substantive? Substantive issues include: (a) elements of a claim or defense (b) SoL (c) rules for tolling SoL (d) conflict or choice of law
5) If substantive, apply the state law. If procedural, apply the federal law.
6) If we aren’t sure whether substantive or not ask:
(a) Is the issue outcome determinative?
(b) What is the balance of interests?
(c) Would applying federal law encourage forum shopping?
Note***
Erie allows for the possibility of federal common law on federal questions, but must follow state law on issues like contracts, torts, or property.
Describe how to choose or change venue.
Now that you are in federal court, which federal court do we go to?!
Venue is proper if:
1) All Ds reside there (or all Ds are from the same state, even if not the same district within the state. In that case, any district where one D is from is ok).
or
2) A substantive part of the claim arose there.
Transfer is proper if (not removal now, but transfer)
1) The case could have been filed there (requires showing PJ over D)
AND, either;
2) Can order transfer based on convenience of parties and witnesses and in the interest of justice (in which case the transferee court must apply the law from the transferor court). Party seeking to remove has the burden to show the new venue is the center of gravity.
Factors
(a) Public - applicable law, jury, keep controversey local.
(b) Private - convenience (e.g. all the evidence and witnesses are here).
(c) Presence or lack of forum selection clause
OR
3) If the original venue was improper, the court may transfer in the interest of justice or dismiss.
What is forum non conveniens?
It kind of looks like transferring venue because it involves another court that is the center of gravity, but instead of transferring the court will either
1) Dismiss
or
2) Stay the case
The result is that P will then go sue in the correct court because the case is now dead within the court he first filed.
The court will do this if the proper venue is in a totally different judicial system, like a foreign jurisdiction.
Almost never granted if P is a resident of the present forum.
The other court must be available and adequate (meaning P will be heard).
What is required for proper service of process?
1) P sends a summons and a complaint.
2) Via a non-party who is at least 18.
3) And it is served directly to D, at D’s usual abode on a person of suitable age and discretion who lives there (e.g. a spouse or a butler), or on D’s agent within the scope of his agency.
OR
Can use a method permitted by state law of forum state or the state law of the state in which D is served.
OR
Can serve by mail with a waiver form requesting that D waive formal service of process. If D waives, he gets extra time to file his responsive pleading (60 days from the date P mailed the waiver). But, if he refuses to waive and does not have a good reason, D must pa the cost of service.
How are other documents delivered?
Delivering or mailing docs to party’s attorney or the pro se party. Email is ok if the party agrees.
Interrogatories are deemed “served” upon the date they are mailed. If they are mailed, then the party has 3 extra days to respond.
What are the requirements for a well-pleaded complaint?
1) Statement of the SMJ grounds.
2) Short and plain statement of the claim, showing entitled to relief. This must include facts supporting a plausible claim. FRAUD, mistake, or special damages require statement with particularity.
3) Demand for relief (e.g. damages, injunction, declaratory judgment, etc.)
What is required in D’s responsive pleading?
Within 21 days of service of process, or 60 days from when D mailed the waiver and D waived, D can respond with either:
1) A motion
OR
2) An answer
If she chooses motion she may:
1) Motion for a more definite statement
2) Motion to strike
and/or
3) File Rule 12(b) motion(s).
12(b)(1) = Lack of SMJ = Can raise anytime
(2)-(5) = Must be raised in the first responsive pleading, or they are waived.
(2) Lack of PJ
(3) Improper Venue
(4) Improper process (problem with papers)
(5) Improper service of process
(6)-(7) = May be raised anytime before or at trial
(6) Failure to state a claim upon which relief may be granted
(7) Failure to join an indispensable party.
If she chooses answer
1) Must respond to all allegations in the complaint or it will be considered an admission (except damages are not considered admitted).
2) State that you lack sufficient information to admit or deny.
3) Raise affirmative defenses or risk waiving them (e.g. res judicata, SoL, Self-Defense, SoF, etc.)
4) State counterclaims (expect P’s response within 21 days).
What is the consequence of finding out there is no SMJ?
Case dismissed or, if removed from state court, and it turns out later there was no SMJ, remand back to state court.
What is a counterclaim?
When is it compulsory?
When is it permissive?
A claim against an opposing party.
Compulsory if arises from same T/O as P’s claim and you have not already filed in another court.
Must be SMJ or supplemental jurisdiction. Collateral estoppel does not apply if D got the case dismissed rather than assert a counterclaim.
Permissive in all other cases, but remember, you must have SMJ or Supp. Jur.
What is a cross claim? What is required?
One D’s claim against another D (a co-party).
It is always permissive, but:
Must arise from same T/O as the underlying action. See hypo on page 31.
Note***A cross-claim of a cross-claim is a counterclaim.
What is an additional claim? Is it allowed?
Once you file a counterclaim or a cross-claim you can try to join another, completely unrelated claim if there is SMJ.
What if you forgot something in your pleading? What can you do?
Amend.
1) Right to amend:
(a) P has right to amend once within 21 days after D served first responsive pleading.
(b) D has the right to amend once within 21 days after he answers.
2) Court should permit a party to amend if justice so requires, looking at these factors:
(a) delay
(b) prejudice
(c) futility
3) Court may permit a variance if P introduced some new shit claim at trial, and D did not object. After trial, P can go back and amend the pleading to conform to the trial evidence.
4) An amendment after SoL has run relates back before the SoL ran if:
(a) It is a new claim, and both the new claim and the old claim concern the same conduct, transaction, or occurrence as the original pleading.
(b) It is a new D, it concerns the same conduct, transaction, or occurrence as the original, the new D knew about the case within 120 days of filing, and the new D knew it should have been her that was sued.
What if something new happened after the pleading?
File a supplemental pleading setting forth the things that happened after the pleading was filed.
What penalties do the Fed. R. Civ. Pro. punish lawyer or parties?
Rule 11 applies to all documents except discovery. Discovery has other provisions for punishment.
When a lawyer or pro se party signs a document, she certifies that to the best of her knowledge and belief after a reasonable inquiry that:
1) No improper purpose
2) Legal conditions are warranted by law or there is a non-frivolous argument for the law to change
3) The factual contentions and denials have evidentiary support or will after investigation.
Attorneys, parties, and law firms are all fair game, but the intent is to deter not punish.
Can impose monetary or non-monetary sanctions.
If a party is complaining, must first serve the other party, and that party has 21 days to fix the problem and avoid sanctions after which time the complainer can file his motion.
Court can impose sua sponte (on its own).
What are the required disclosures at the outset of discovery? MOST IMPORTANT PART OF DISCOVERY IS INITIAL DISCOVERY
Must disclose:
1) Identities of persons who have discoverable info that you may use to SUPPORT our claims or defenses. Failure to ID means you can’t use that witness unless failure was substantially justified or harmless.
2) Docs and things that you may use to support your claims and defenses (copies or a description is fine). Same remedy as above for failure to disclose.
If you know about docs or things, but they are not in your control. No disclosure. Let them go find it.
3) Computation of monetary relief and documents supporting it.
4) D’s insurance coverage.
Note***Discoverability is broader than admissibility.
What are the rules for discovery involving expert witnesses?
1) Consulting experts not to be used as a trial witness are not expert witnesses.
2) An expert witness must be disclosed (ID and written report)
3) Written report contains a) opinions, b) bases, c) facts used to form his opinion, d) EW’s qualifications, and e) how much EW is being paid.
4) Failure to disclose EW means you can’t use her unless failure was justified or harmless.
Must be available for deposition if subpoenaed and that party who subpoenaed must pay the EW’s reasonable fee.
Early drafts of the EW Report are WP, as well as, comms between the lawyer and his EW.
Note***
Special skill or training allows the EW to give opinion, but just because someone has special skill or training does not make him an EW. Such a person may simply be a factual witness for this case.
What is the pre-trial required disclosure?
NLT 30 days before trial, must give detailed info about trial evidence, including ID of witnesses to testify live or by depo, and documents, ESI, or other things to be introduced at trial.
What are the five major discovery tools? What rules apply to all of them?
- Depositions
- Interrogatories
- Request to Produce
- Medical Exams
- Request for Admission
Parties must sign substantive answers to discovery under oath.
Every discovery request must be signed by counsel certifying that
(i) It is warranted
(ii) It is not interposed for an improper purpose; and
(iii) it is not unduly burdensome.
If you find out later that something is incomplete or incorrect, you have a duty to supplement the response.
What are the rules for depositions?
1) A party or non party;
2) Testifies under oath;
3) From present recollection;
4) At a location within 100 miles from deponent’s work or residence.
5) Should subpoena non-party.
6) Can request that the deponent bring materials with her.
7) To get the right person from a company, serve notice of depo. and describe the matters for examination.
8) No more than 10 w/o court approval.
9) Only depose someone once w/o court approval.
10) Depo cannot exceed one day of seven hours.
11) Can be used at trial to impeach the deponent, any purpose if deponent is an opposing party, or for any purpose if deponent is unavailable for trial (unless you procured their absence).
What are the rules for interrogatories?
1) A party only;
2) testifies by answering no more than 25 (actual) questions (no sub-questions) in writing;
3) under oath;
4) within 30 days of service (+3 days from time of mailing to the party to answer Qs if mailed);
5) using any information you know or reasonably available to you.
6) If answer is extremely burdensome to find, you can allow the requesting party access to the necessary records.
7) Cannot use your own answers to interrogatories as evidence at trial.
What rules surround the request to produce?
1) A request that a PARTY makes something available to you in order to review it, copy it, inspect it, measure it, etc.
2) Served party must respond within 30 days stating that the material will be produced or you have objections.
3) If you want something from a non-party, you must subpoena.
4) This includes ESI (requesting party requests the form, and other party can object or not).
What rules surround a physical or mental health exam?
1) Requires court order;
2) the PARTY’s (or someone in legal custody of a party) health is in actual controversy and you have good cause for asking (construed narrowly, parent-child good, employer-employee bad);
3) Examined party may have a copy, but by requesting it, that person waives any privilege about any previous medical examinations for the medical condition at issue including ones he had done for himself.
What rules surround a request for admission?
1) A PARTY only;
2) may be served with a request to specifically admit or deny a fact or object to the request in writing within 30 days.
3) If party fails to deny specifically he is deemed to have admitted that fact.
4) Can say you don’t know only if you make a reasonable inquiry and cannot find enough to admit or deny.
This is often used to authenticate a document. e.g. “Admit that this is the contract.”
The Seventh Amendment guarantees a trial by jury in all cases where:
A The claim is “at law,” and the amount in controversy exceeds $20
B The amount in controversy exceeds $20
C The claim is “at law”
D The amount in controversy exceeds $75,000
A The claim is “at law,” and the amount in controversy exceeds $20
A new trial may be granted when the verdict is:
A Excessive, inadequate, or such that a reasonable jury would not have a legally sufficient basis to come to that verdict
B Excessive, inadequate, or against the weight of the evidence
C Excessive or inadequate only
D Against the weight of the evidence only
B Excessive, inadequate, or against the weight of the evidence
a new trial also may be granted because of an error during the trial (usually going to the admissibility of evidence or the propriety of the instructions) or because of jury misconduct.
Under Federal Rule 41(b), _______ are grounds for a court to order an involuntary dismissal against a plaintiff.
A The failure to prosecute the case, to comply with the Federal Rules, or to comply with a court order
B The failure to comply with the Federal Rules or to comply with a court order only
C The failure to prosecute the case or to comply with the Federal Rules only
D The failure to prosecute the case or to comply with a court order only
A The failure to prosecute the case, to comply with the Federal Rules, or to comply with a court order
A court may, under Federal Rule 41(b), order an involuntary dismissal against a plaintiff on the defendant’s motion or on its own motion for the failure to prosecute the case, to comply with the Federal Rules, or to comply with a court order. An involuntary dismissal is with prejudice, meaning that it operates as adjudication on the merits, unless the court orders otherwise. All of the other answers are incorrect because they are incomplete; because they each are missing an element, they are not the only reasons for involuntary dismissal under Federal Rule 41(b).
What is required to assert claim preclusion (res judicata)?
For claim preclusion (res judicata) to apply, all of the following criteria must be met:
(i) the earlier judgment is a valid, final judgment on the merits;
(ii) the cases are brought by the same claimant against the same defendant;
and (iii) the same cause of action is involved in the later lawsuit.
Which of the following bases for relief from judgment under Rule 60 does NOT necessarily have to be brought within one year?
A The judgment is void
B Mistake, inadvertence, surprise, or excusable neglect
C Newly discovered evidence that, by due diligence, could not have been discovered in time to move for a new trial
D Fraud, misrepresentation, or other misconduct of an adverse party
A The judgment is void
A motion for relief from judgment because the judgment is void must be brought within a reasonable time, but there is no outermost deadline. When relief is based on (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that, by due diligence, could not have been discovered in time to move for a new trial; or (iii) fraud, misrepresentation, or other misconduct of an adverse party, the motion must be brought within a reasonable time not to exceed one year.
Which of the following statements is true about the appellate jurisdiction of the United States Supreme Court?
A The Supreme Court has discretion to hear appeals from the federal appellate courts but has no discretion to hear cases from any state courts.
B The Supreme Court has discretion to hear some appeals from state courts and some appeals directly from federal district courts in certain cases.
C The Supreme Court has discretion to hear appeals from some state courts but has no discretion to hear any cases directly from the federal district
courts.
D The Supreme Court has discretion to hear appeals from the federal appellate courts but has no discretion to hear any cases directly from the federal district courts.
B The Supreme Court has discretion to hear some appeals from state courts and some appeals directly from federal district courts in certain cases.
