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Federal Civil Procedure Flashcards

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1
Q

Standard for Motion for Summary J

A

A MSJ should be granted if based on the pleadings, affidavits, and discovery materials, viewed in the light most favorable to the non moving party, it appears that there is genuine dispute of material fact.

Once a moving party submits affidavits or evidence in support the non moving party must counter with its own evidence on the matter

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2
Q

How will a court treat a settlement for the purpose of assessing issue or claim preclusion

A

Is not an ACTUAL judgement so it cannot be used

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3
Q

Elements of Claim Preclusion/Res Judicata

A
  1. Cases were brought by same claimant against the same defendant/
  2. Case 1 ended with a valid final judgement on the merits. (not a settlement, not jurisdiction, venue, or indispensable parties, everything else is a yes).
  3. Cases assert same claim.
    a. Majority–any right to relieve arising from same T/o
    b. minorites views personal injuries as distinct from property injuries.
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4
Q

Issue Preclusion (Collateral Estoppel)

A
  1. Case ended in valid final J on mertis
  2. same issue was actually litigated and determined in case 1.
  3. that issue was essential for judgement in case 1.
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5
Q

Against whom can issue preclusion be asserted?

A

Someone who was a party in case 1, or in privity with a party

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6
Q

Who can assert an issue preclusion claim?

A
  1. Someone who was a party in Case 1 can use it/

2. issue non mutual issue preclusion (see other cards)

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7
Q

Non mutual defensive issue preclsuion

A

IP asserted by someone not a party to claim 1 against a new P

allowed where P had full chance to litigate in the first case, and where fair

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8
Q

Non mutual offensive issue preclusion

A

IP asserted by someone not a party to claim 1 and is now the P in claim 2.

Most states today say NO, with a clear trend allowing it so long as it is not unfair–citing these factors:

  1. full and fail opp to litigate in case 1
  2. incentive to litigate strongly
  3. could not have joined party in first case
  4. no inconsistent findings on issue (this isnt the 5th time case has been heard with 2-2-.
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9
Q

What service is required by DP

A

DP requires that the method of giving notice must have a reasonable prospect of giving actual notice==posting is not suffcient if names and addresses are known

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10
Q

Rule for disclosure of existence of insurance

A

Must==pursuant to Fed R Civ P 26(b)2.–must disclose in initial disclosure

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11
Q

Removal to Federal Court–Timing

A

If a diversity action is not initially removable but later becomes removable, it may not be removed more than one year after it was commenced in state court.

D has 30 days after case becomes removable to remove.

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12
Q

Interpleader

A

used where P is in possession of property claimed by 2 or more other parties. Requires that the claimants litigate among themselves as to who is entitled to the property.

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13
Q

Who can remove a case?

A

Only a D. No a P. Even if the D counterclaims, no P. Even if the P joins in removal, no P.

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14
Q

Removal Rule

A

An action filed in a state court may be removed to federal court if 1) case could have been originally filed in federal court, ii) cases removed on the basis of diversity, no defendant is a citizen of the state where the action was filed

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15
Q

What happens if case is removed, but state court did not have jurisdiction?

A

May do it. Federal court may hear a removed case even though the state court from which the case ws removed did not have jurisdiction.

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16
Q

Aggregation of Claims

A

A plaintiff may aggregate even unrelated claims to get to the 75001 minimum.

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17
Q

Can there be diversity jurisdiction over an american living abroad?

A

NO. A US citizen domiciled abroad is not a citizen of ay state and is not an alien and cannot be sued under diversity jurisdiction.

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18
Q

What must non-moving party do to overcome MSJ?

A

Where P supports MSJ with substantial evidence, defendant must come forth with admissible evidence in rebuttal. Party cannot rely on pleadings allegation unless VERIFIED pleadings

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19
Q

What is discoverable?

A

Discovery may be had of any non privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, including the identity of any individuals with knowledge of any discoverable matter.

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20
Q

Erie Doctrine

A

Federal courts sitting in diversity jurisdiction should apply the substantive law of the state, and federal procedural law. –Federal law on point will govern if it is arguably procedural.

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21
Q

Procedure for getting a Default Judgement after a clerk has entered entry of default?

A
  1. If the D never responded at all: file a motion to have the clerk of court enter the default J, and the clerk may do so w/o the D receiving any further notice of the motion
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22
Q

if you file a motion to dismiss for lack of SMJ can you assert lack of PJ in answer?

A

NO–waived.

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23
Q

Personal Jurisdiction

A

Does D have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?

Ask–Contact, Relatedness, Fairness

Contact: did D purposefully avail himself to forum, such that it was foreseeable that he could get sued in this forum.

Relatedness: Does P’s claim arise out of D’s contacts with forum.–>if yes there is P (specific PJ), if not you need general –D must be at home in forum. (where domiciled, or corp where incorporated and ppb)

Fairness–only relevant for specific PJ Cases.
a. burden on D and witnesses (wealth not dispositive) states interest, plaintiff’s interest in being at home.

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24
Q

Subject Matter Jurisdiction

A

Federal Q;

Diversity (between 2 citizens of different states, or between a citz of a state and one of a foreign country.) + >75,000.

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25
Q

Diversity and Alieange

A

Diversity SMJ includes one citz of a state and an alien–but some exceptions:

an alien admitted to the US for permanent residence, who is domociled in a US state is an alien—so she can invoke diversity J through alienage, but not through diversity.

BUT–a green card alien domociled in same US state as a litigatnt cant sue in federal court, by statute

alien (NY) v. NY–>no SMJ

AND–a US citizen domiciled abroad can never get into fed court by diversity OR alienage

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26
Q

Citz of a corporation

A

Every state or country where it is incorporated, the one state or country where it has its PPB

PPB is where managers: direct, coordinate, control corporate activities, typically headquarters

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27
Q

Citizenship of a Partnership

A

Citzen of domicile of all its members!

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28
Q

Amount in Controversy

A

Over 75,000 (not exactly 75K)

–>does not include costs or interest on the claim.

–>may aggregate claims of 1 P against 1 D (even unrelated) but 2 Ps cant aggregate against 1 D,

–> P can aggregate claims against joint tortfeasors (sue joint for 100,000)
P may claim an amount in good faith as long it is not clear to a legal certainty that she CANNOT recover more than 75K. (eg if statute limits punitive damage,)

BUT–P who wins less than 75,000 may have to pay D’s litigation costs (which is bad bc normally winner gets costs from loser)

29
Q

amount in controversy for Injunctions

A

–does it decrease P’s value of property by more than 75L, or if it would cost the D more than 75,000 to comply with inunction.

30
Q

What kinds of case with federal court never hear?

A

Divorce, Alimony, Child Custody, Probate/Estate

31
Q

Supplemental Jurisdiction

A

After case is in court–additional claims be be asserted (cross or counter)

  1. check if there is diversity, or federal Q –OK
  2. if no–supplemental J: ask first do they share a common nucleus of operative fact (same transaction or occurence as underlying case) and limitation: applies in diversity Q to claims brought by P

exception:

multiple P suing same D on same T/o and one does not meet amount in controversy

discretion: Court may not grant supp J—if complex, state law issues predominate, or if underlying claim was dismissed early in the case.

32
Q

Removal-what how when

A

–remove from state to federal–can remove a case that meets SMJ or FQ.

when:
- -within 30 days of SERVICE.
- -no removal more than 1 year after case was filed in state court.

Who:

  • -all served D’s must join.
  • -P can NEVER remove.
  • -CANNOT remove if ANY D is citizen of the forum state.

where?
–in the federal court embracing the state court where case was filed.

what– notice of removal–stating grounds which means SMJ or fed Q

33
Q

Remand

A

If P thinks a case should not have been removed, by file a motion to remand to state court, within 30 days if the issue is procedural, whenever if issue is lack of SMJ

34
Q

Erie–Which law should federal court apply?

A

Applies in diversity cases:

  1. Ask if there is some federal law on point that directly conflicts with state law–if so–apply federal law if valid—(supremacy)

—>FRCP and FR–evidence will be supreme.

–> if law does not modify substantive rights, it is arguably procedural

  1. If there is no federal law on point, will apply state law unless issue is substantive–SUCH AS THESE:
    - -elements of a claim or defense
    - -statute of limitations
    - -rule for tolling statutes of limitations
    - -conflict or choice of law rules (***)
    - -so state law will apply to the above!
  2. if no federal law on point and not one of above, courts will determine if substantive/procedure randomly weighing below factors:
    - -is it outcome determinative
    - -interest balancing between state/fed
    - -if fed court ignore state law will it cause parties to flock to federal court (most important).
35
Q

Are conflict of law rules substantive or procedural?

A

SUBSTANTIVE!

36
Q

What types of laws are always Substantive?

A
  • -elements of a claim or defense
  • -statute of limitations
  • -rule for tolling statutes of limitations
  • -conflict or choice of law rules (***)
  • -so state law will apply to the above!
37
Q

Federal Common Law

A

If congress passes a law that creates a new claim but does not provide a SOL for it, a fed court may fill it in–this is about it

38
Q

Venue

A

Venue tells us which federal court we are supposed to be in.

P may lay venue in any district where a) all Defendant’s reside or a substantial part of the claim arose.

**If all D’s live in same state (even tho different districts) can be sued in any district where ANY D resides.

**if D does not reside in US, venue is OK anywhere!

**for sake of venue, D resides anywhere that it is subject to Personal Jurisdiction for this case.

39
Q

Transfer of Venue

A

Venue may only be transferred to a district in which the case could have been filed.

transfer must be proper w/o P’s waiving

but–if all parties consents and court finds cause for transfer–court may.

2–> Transfer statutes: court can transfer based on convenience of parties, and based on interest of justice.

(never a right to transfer) will look at what community should be burdened, and private stuff like where parties and evidence are.

40
Q

Whose laws do you apply when there is transfer

A

The law that the transferor would have applied:

41
Q

What happens where original venue was not proper?

A

transfer in interest of justice or dismiss

42
Q

Forum Non Conveniens

A

Where another court would be better for the case, but court cannot transfer–will dismiss.

usually applies when most convenient court is in another country or something.

other court must be available and adequate–lack of jury or remedies not enough–as long as court would give P her day in court.

43
Q

Service of Process (who, how)

A

who can serve–>any non party who is 18 y.o can serve.

how:
a. Personal-anywhere.
b. substituted service: P left at D’s usual abode, and service to someone of suitable age and discretion who resides there (butler) (D need not reside there every day of the year)
c. service on D’s agent. Process can be delivered to D’s agent
d. Any method of serving permitted by state law where fed courts sits or where the service is made.
e. Waiver by mail: you can mail D a copy and 2 copies of waiver with prepaid return. service OK if D waives within 30 days–(D does not waive PJ objection)

44
Q

What happens if D does not file waiver of service w/o good reason?

A

D can be liable for cost of service

45
Q

Requirements of a Valid PLeading

A
  1. Statement of grounds of SMJ
  2. short and plan statment of claim–>notice pleading, facts supporting a plausible claim-
  3. demand for relief

(need not allege PJ or venue)

46
Q

When Must D respond to pleading

A
  1. D must respond w/in 21 days after service, with motion OR answer.

(you get 60 days if you waived service in person)

47
Q

Rule 12 Motions

A
  1. no SMJ
  2. no PJ
  3. improper venue
  4. improper process (procedural)
    5 improper service of process.
  5. failure to state a claim
  6. failure to join an indispensable party

(2-5 are waivable–if they are not put in the first response motion or answer, they are waived.

defences may be put in an ANSWER or a MOTION

48
Q

When can you raise a 12b6 motion for failure to state a claim or 12b7 motion for failure to join?

A

Any time through trial

49
Q

when can you raise lack of SMJ?

A

ANY TIME- NEVER EVER WAIVED

50
Q

Counterclaims

A

a claim against an opposing party (includes D v. original P, or any situation in which someone has brought a claim against you and you bring one back)

51
Q

Compulsory Counterclaim

A

arises from same t/o as P’s claim.

only one. must file or waived.

(will always satisfy SMJ bc supp J–same t./o)

52
Q

Permissive Counterlcaim

A

anyone that does not arise out of same t/o as P’s claim/ not required to file in this case.

For permissive counterclaims–check if there is SMJ or supp J

53
Q

Cross claims

A

claim against a co-party. Must arise out of same t/o as underlying action. Is not compulsory

54
Q

Variance

A

when evidence at trial doesnt match the pleadings (an d no objection for releavnce) you can amend answer to match what was tried

55
Q

SOL/Relating Back

A

relating back means you treat amended pleading as though it was filed along with original pleading therefore avoiding SOL problems.

joining a new claim: amended pleadings relate back if they concern the same conduct, transaction, or occurrence as the original pleading.

changing D: if it concerns the same conduct, t/o, new party KNEW of this case within 90 days of filing, and knew that but for a mistake she would have been named originally.

56
Q

Discovery

A

Initial Disclosures–
1. w/in 14 days of rule 26F conference:
2. What:
a, identities of persons who have discoverable information that you may use to support their claim or defenses, name, number, subject about which they have info.

b. documents and things (ESI), in your control that will use to support their claims and defenses.
c. a computation of monetary damages sought
d. whether you have insurance

  1. what happens if you fail to disclose
    - party may be not able to use person or document.
57
Q

Discovery re: expert witnesses

A

When directed by court, each party must ID expert witnesses who MAY be used at trial. generally must disclose Identity and written report including 1) opinions of EW, 2) bases for opinions 3) facts used to form opinions 4) qualification 5) what they are being paid

58
Q

Expert W defiend

A

Someone who, because of their special skill or training may give opinions testimony. and is HIRED to give such opinion in this case.

59
Q

Depositions

A

Depositions–of parties or non parties–it is under oath
if its a party you just serve notice of depo, if its a non party you must use subpoena

subpoena duces tecum–to bring materials with them

cant take more than 10 depos.

uses: impeach, party admissions, anything if deponent is absent

60
Q

Interogatories

A

*parties only (NOT NON PARTIES)
they have 30 days to respond
no more than 25.

*if it would be equally hard for each party to find, responding party can allow party to have access to records

61
Q

Requests to produce documents

A

of parties only

can get same info from non parties with subpoeana

has 30 days to respond

62
Q

Request for Medical Exam

A

must get court order and show health is in controversy and good cause.

can order a party or someone in partie’s lega custody (like kid)

party seking order choses who will perform.

once he gets report, party waives privilege–has to produce reports about his own doctors.???

63
Q

admissions

A

of parties only.

if D does not deny or fails to object in 30 days ,it is deemed admitted.

only document to which Rule 11 Sanctions do not apply.
Admissions are under oath.

64
Q

Scope of Discovery

A

relevant and proportional (relevant > admissible)

65
Q

Work Product

A

trial prep materials, prepared in anticipation of litigation
–may be created by party, lawyer, or rep.

qualified work product: specific item that may be discovered if substantial need and not otherwise available

absolute work product: mental impressions, opinions, conclusions, legal theories.

66
Q

Stopped on Page 44 (just reviewd after

A

Pick up here

67
Q

additur

A

when judge increases damages–NOT OK IN FEDERAL COURT (

remittitur–where judge lowers, is OK in fed and state.

68
Q

When can a Third Party D assertt claim against P?

A

only where arising from same t/o

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