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Federal Practice & Procedure Flashcards

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1
Q

What is Personal Jurisdiction?

A

Ability of the ct having SMJ (i.e., jurisdiction over the type of case) to exercise power over a particular D

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2
Q

3 Types of Jursidiction

A
  1. In personam
  2. In rem
  3. Quasi in rem
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3
Q

Personal Jurisdiction - In Personam - MEANING

A

When forum has power over the PERSON OF A PARTICULAR D

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4
Q

Personal Jurisdiction - 2 Req’ts to Exercise P/J of Nonresident

A

Ct must satisfy 2 req’ts:

  1. One of the grounds under VA Long Arm statute must be satisfied.
  2. Exercise of PJ over nonresident D must NOT VIOLATE DUE PROCESS OF LAW
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5
Q

Personal Jurisdiction - Due Process Clause Req’t

A

MINIMUM CONTACTS Test - D must have sufficient minimum contacts w/ forum state that D could RSN’Y ANTICIPATE BEING SUED in VA.

PURPOSEFULLY AVAILING oneself of the privileges of doing business in state puts D on notice of potential to be sued there

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6
Q

Personal Jurisdiction - Gen’l vs. Specific Jurisdiction

A

General: Ct has jurisdiction over any claim against D

Specific: Jurisdiction must be related to the claim

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7
Q

Personal Jurisdiction - When does court have Gen’l Jurisdiction over a D?

A

D is PRESENT in forum state and PERSONALLY SERVED there

D is DOMICILED in forum state

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8
Q

Personal Jurisdiction - When does court have Specific Jurisdiction over a D (what test)?

A

International Shoe MINIMUM CONTACTS

D must have SUFFICIENT MINIMUM CONTACTS w/ VA and claim ARISES FROM THOSE CONTACTS.

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9
Q

Personal Jurisdiction - Specific Jurisdiction - Is putting item into STREAM OF COMMERCE enough to trigger PJ?

A

Simply placing product in stream of commerce not enough –> D must have PURPOSEFUL CONDUCT directed at state that would make it REASONABLE for D to ANTICIPATE BEING SUED THERE

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10
Q

Personal Jurisdiction - In Rem

A

When ct has power to adjudicate the rights of ALL persons in the world w/ respect to a particular item of property

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11
Q

Virginia Long Arm Statute - Grounds for Exercising Jurisdiction

A
  1. Transacting Business in VA (1 transaction enough)
  2. K’ing to Supply Goods or Services in VA
  3. Causing Tortious Injury by act or omission INSIDE state
  4. Causing TORTIOUS INJURY by act or omission OUTSIDE state IF REGULARLY DOES/SOLICITS BUSINESS IN VA
  5. Causes injury in state by BREACH OF WARRANTY made in sale of goods if RSNy expected consumer would use/consume by person in VA provided he also regularly does/solicits business in VA
  6. Has INTEREST IN, USES, OR POSSESSES REAL PROPERTY in VA
  7. Ks to insure person in VA
  8. Agmt to pay child support or spousal
  9. Matrimonial domicile in VA
  10. Concieved or fathered child in VA
  11. Incurred liability for taxes, fines, penalties, interest
  12. Using computer or COMPUTER NETWORK in VA (but only if use as part of the act or omission (like selling a product that caused an injury)
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12
Q

Virginia Long Arm Statute - Transacting Business Req’ts

A

Just takes 1 transaction of business.

D does NOT have to come to VA to meet req’t

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13
Q

Personal Jurisdiction - Quasi In Rem

A

Exists when ct has power to determine the rights of particular ind’ls w/ respect to specific property w/i ct’s control

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14
Q

SMJ - Fed’l Question

A

Fed’l cts have SMJ over claims arising out of CONSTITUTION, LAWS or TREATIES of U.S.

Must appear as part of P’s CoA set out in a well-pleaded CMPT

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15
Q

SMJ - Diversity of Citizenship

A
  1. All parties on P side must be citizens of different state from all parties on D’s side, AND
  2. Amt in controversy OVER $75K exclusive of interest and costs
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16
Q

SMJ - Diversity of Citizenship - Test for Determining Individual’s Domicile

A
  1. Where ind’l has PHYSICAL RESIDENCE, and

2. INTENT to MAKE RESIDENCE PERMANENT PHYSICAL RESIDENCE

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17
Q

SMJ - Diversity - Amount in Controversy Req’t - LEGAL CERTAINTY TEST

A

Case meets the Amt in Controversy req’t UNLESS ct can say, TO A LEGAL CERTAINTY, P can’t recover more than $75k

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18
Q

SMJ - Diversity - Amount in Controversy Req’t - When P Reduces Amt

A

Amt judged at the time of original CMPT

Even if amount drops below threshold, as long as ct had proper jurisdiction at time initial CMPT filed

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19
Q

SMJ - Diversity - Amount in Controversy Req’t - Good Faith

A

As long as amt in controversy made IN GOOD FAITH, ct won’t 2nd guess it.

However, a court will second-guess the minimum amount in controversy if it is clear on the fact of the complaint that the amount is incapable of being attained and is clearly just to manufacture diversity jurisdiction

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20
Q

SMJ - Diversity - Amount in Controversy Req’t - AGGREGATION AGAINST MULTIPLE D’s

A

General R: P CANNOT aggregate claims against multiple D’s to exceed $75k

Exception: When multiple D’s NEGLIGENCE JOINTLY CONTRIBUTED TO A SINGLE INJURY, such that they’re JOINTLY LIABLE

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21
Q

SMJ - Diversity - Amount in Controversy Req’t - Can P AGGREGATE claims against 1 D to meet threshold?

A

Yes

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22
Q

SMJ - Supplemental Jurisdiction Over State Claims

A
  1. PENDENT CLAIMS

2. PENDENT PARTIES

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23
Q

Pendent Claims

A

If P has both fed and state claims, fed’l ct has DISCRETION to exercise supplemental (pendent) jurisdiction over state law claim if the 2 claims:

  1. DERIVE FROM A COMMON NUCLEUS OF OPERATIVE FACT and
  2. P would ORDINARILY BE EXPECTED TO TRY THEM ALL IN 1 JUD’L PROCEEDING
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24
Q

Pendent Party

A

Pendent party jurisdiction can arise when (1) P sues more than 1 D, (2) there’s fed’l jurisdiction over the claim against 1 D, and (3) claim against 2nd D doesn’t invoke fed’l Q or diversity of citizenship.

Can also apply to add a 2nd D where the amt is less than $75k if another D is over $75k and claim involves COMMON NUCLEUS OF OPERATIVE FACTS

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25
Q

LLC Citizenship Determination

A

Determined by citizenship of EACH MEMBER OF THE LLC.

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26
Q

Removal Jurisdiction

A

State ct action can be removed if

  1. case could have originally been filed in fed’l ct (fed Q or diversity), and
  2. for diversity, NO D is a citizen of the state where action filed
27
Q

Who may remove case?

A

Only D’s

28
Q

Venue - Removal Jurisdiction (Where is venue proper when case removed)

A

Fed dist ct EMBRACING PLACE WHERE STATE ACTION IS PENDING

29
Q

Only Way for Case to be Sent to State Court

A
  1. Case ORIGINATED in state court
  2. case REMOVED to fed ct
  3. case then REMANDED back to state ct
30
Q

D’s Options when P FAILED TO INCLUDE INDISPENSABLE PARTIES

A
  1. Bring MTD under r. 12 for FAILURE TO INCLUDE INDISPENSABLE PARTY
  2. File a 3RD PARTY CMPT
31
Q

Under What Circumstances Must Indispensable Party Be Added

A

Person MUST BE JOINED as a party if:

  1. In their absence, ct can’t accord complete relief among existing parties, or
  2. That person claims an interest relating to the subject of the action & is so situated that disposing of the action in the person’s absence may impair or impede their ability to protect the interest, or leave existing party subject to substantial risk of incurring multiple or inconsistent obligations
32
Q

Indispensable Party - Waivability

A

MTD for failure to raise an indispensable party is NOT WAIVABLE

Can be raised AT ANY TIME up until and including the trial

33
Q

3rd Party Complaint

A

Defending party may, as a 3RD PARTY P, serve cmpt on a non-party who is or may be liable to it for all or part of the claim against it.

34
Q

Eerie Doctrine - Substantive Law

A

Fed ct will apply law of state for substantive law in (1) DIVERSITY cases and (2) cases in which ct has SUPPLEMENTAL JURISDICTION over state law claims

35
Q

Eerie Doctrine - Procedure Law

A

Fed ct will apply fed law for procedural law (as long as they don’t address substantive state law)

Fed cts NOT REQUIRED to change their procedures or practices for handling cases and trials so long as they don’t impinge on state substantive law

36
Q

SMJ vs. Venue

A

SMJ - power of the ct to adjudicate matter before it

Venue - proper district in which to bring the action

37
Q

Venue - General Rules

A

Venue in civil actions proper in:

  1. District where ANY D RESIDES, if all D’s reside in same state
  2. District in which SUBSTANTIAL PART OF EVENTS OR OMISSIONS giving rise to claim occurred (or SUBSTANTIAL PART OF PROPERTY that’s subject of the action is situated), or
  3. If no district satisfies 1 or 2, dist WHERE ANY D IS SUBJECT TO PERSONAL JURISDICTION w/ respect to the action
38
Q

Where is venue proper when multiple districts could hear case?

A

Favors P’s CHOICE OF DISTRICT (where multiple districts apply)

39
Q

Venue - When can court transfer to district in another state?

A

When case could have ORIGINALLY BEEN BROUGHT IN THAT DISTRICT (pursuant to Venue Statute/Req’t)

40
Q

Complaint - Req’d Contents

A
  1. Grounds of fed’l jurisdiction
  2. short stmt of the claim showing pleader is entitled to relief
  3. Demand for j’ment for relief
41
Q

Plaintiff’s Claims - Sufficiency to Withstand MTD

A

Must be DETAILED ENOUGH TO PROVIDE FACTUAL SUPPORT FOR P’s Claims

Formulaic assertions of facts and conclusions don’t suffice

42
Q

Spoliation of Electronically Stored E - Gen’l Rule

A

Parties must take RSN STEPS to PRESERVE ESI in the ANTICIPATION OR CONDUCT OF LITIGATION (if LIT is RSNy FORESEEABLE)

If it CAN’T BE RESTORED OR REPLACED through add’l discovery, ct can enter sanctions

43
Q

Spoliation of Evidence - Remedies

A

No greater than to CURE THE PREJUDICE

44
Q

Spoliation of Evidence - Intent to Deprive

A

Ct may

  1. Presume lost info UNFAVORABLE to party
  2. INSTRUCT jury it may or must PRESUME INFO WAS UNFAVORABLE
  3. or, DISMISS ACTION or enter D/J
45
Q

Motion to Amend Prior Order or Renew Prior Motions - Why May They Be Brought

A
  1. New E discovered NOT PREVIOUSLY AVAILABLE
  2. INTERVENING CHANGE IN LAW
  3. Need to CORRECT CLEAR ERROR OF LAW OR FACT
  4. PREVENT MANIFEST INJUSTICE
46
Q

Motion to Amend Prior Order or Renew Prior Motion - When Must They Be Brought

A

W/I 28 days of order

If after 28 days, P must seek RELIEF FROM J’MENT, or

APPEAL

An order that’s not final may be modified

47
Q

Motion for Relief or Motion to Vacate Judgment (R. 60) Based on Newly Discovered E – Grounds

A
  1. Mistake, inadvertence, surprise or excusable neglect
  2. NEWLY DISCOVERED E that, by due diligence, COULDN’T HAVE BEEN DISCOVERED IN TIME TO MOVE FOR NEW TRIAL
  3. FRAUD, MIS/REP, or other MISCONDUCT
  4. J’MENT BEING VOID
  5. J’MENT being SATISFIED, RELEASED, OR DISCHARGED
  6. ANY OTHER REASON justifying relief
48
Q

Motion for Relief or Motion to Vacate Judgment (R. 60) Based on Newly Discovered E – Time to File Motion

A
  1. Mistake, inadvertence, surprise or excusable neglect
  2. NEWLY DISCOVERED E that, by due diligence, COULDN’T HAVE BEEN DISCOVERED IN TIME TO MOVE FOR NEW TRIAL
  3. FRAUD, MIS/REP, or other MISCONDUCT

RSN TIME NTE 1 YEAR

49
Q

Motion for Relief or Motion to Vacate Judgment (R. 60) – Time to File Motion (when j’ment VOID, SATISIFED, RELEASED, OR ANY OTHER REASON)

A
  1. J’MENT BEING VOID
  2. J’MENT being SATISFIED, RELEASED, OR DISCHARGED
  3. ANY OTHER REASON justifying relief

within REASONABLE TIME

50
Q

Types of Disclosures Req’d

A
  1. Initial Disclosures
  2. Expert Testimony
  3. Pretrial Disclosures
51
Q

Initial Disclosures - Types Req’d

A
  1. Individuals likely to have discoverable information that disclosing party may use to support its claims/defenses (unless solely for impeachment)
  2. Copies or descriptions of documents, ESI & tangible things in disclosing party’s possession/control that they may use to support claims/defenses (unless for impeachment)
  3. Computation of DAM claimed & copies of materials upon which computation is based
  4. Insurance agreements under which insurer might be liable for all or part of j’ment that might be entered
52
Q

Disclosure of Expert Testimony

A

Parties must disclose identity of expert witnesses expected to be used at trial.

If E/W specially retained, must disclose expert report w/ qualifications, opinions to be expressed, and basis for opinions, as well as list of cases they’ve testified in over last 4 years

Otherwise, must disclose: identity, subject matter on which expert is expected to present E, summary of facts/opinions to which E/W is expected to testify

53
Q

Pretrial Disclosures

A

At least 30 days before trial, must disclose:

  1. W’s they expect to call at trial
  2. W’s they’ll call if needed
  3. W’s whose testimony will be by deposition and a transcript of pertinent portions of deposition, and
  4. List of documents/exhibits they expect to offer

No need to disclose E or W’s used solely for impeachment

54
Q

Can Court Order Party to Submit to Physical or Mental Examination?

A

Yes, when party’s MENTAL OR PHYSICAL CONDITION IS IN CONTROVERSY.

55
Q

When Can Deposition Be Used at Trial or Hearing

A
  1. To IMPEACH TESTIMONY of the deponent as a W
  2. for ANY PURPOSE if deponent is DEAD or is beyond a 100 mile radius from place of trial (or outside U.S.), or can’t testify due to AGE, SICKNESS, or IMPRISONMENT
  3. FOR ANY PURPOSE if, on notice and motion, J permits deposition to be used due to EXCEPTIONAL CIRCUMSTANCES, or
  4. FOR ANY PURPOSE if DEPONENT IS ADVERSE PARTY
56
Q

Difference Btwn Fed Rules and Va Rules re Use of Deposition at Trial

A

VA’s rules allow using deposition of treating/examining healthcare professional at trial, even if they’re available at trial

Fed R. Civ. P. has NO SUCH PROVISION

57
Q

Late Disclosure in Violation of Pretrial Scheduling Order - Req’t for Relief by Aggrieved Party

A

If late disclosure is prejudicial and/or violates scheduling order, especially if close to or after discovery cutoff

58
Q

Does D need to make special appearance to challenge personal jurisdiction (or is a MTD based on lack P/J enough)?

A

No special appearance req’d (MTD is enough)

59
Q

Can appeals court review order that isn’t final?

A

No, unless it’s an appealable interlocutory order

60
Q

Interlocutory Orders that are Appealable AS OF RIGHT

A
  1. Injunctions (though NOT TRO)
  2. Appointment of Receivers
  3. Certain Admiralty, Patent Infringement, and Property Possession Cases
61
Q

When can MUST a defendant raise a counter or cross claim?

A

When claim arises from same TRANSACTION OR OCCURENCE

62
Q

How can D preserve R. 12 defenses (PJ, Venue, Insufficient Process, Insufficient Service)

A

By raising DEF in 1ST DEFENSIVE FILINGS W/I 21 DAYS OF SERVICE

63
Q

How can D make challenges re R. 12 defenses (PJ, Venue, Insufficient Process, Insufficient Service)?

A

If 1st defensive filing is A, it’s enough to DENY P’s allegation of [PJ/Process/Service] or to RAISE AS AFFIRMATIVE DEFENSE

Then they can file motion to resolve

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