FRCP + CA CP Flashcards
PJ
Authority over parties
Statutory (applicable law) + Constitutional (MC)
Traditional Basis for PJ
Consents, Domiciled in FS, physically present when served in FS
In Personam
Over Persons
In Rem
Over property disputes of prop located in state
Quasi In rem
No PJ but prop within state so can decided
Statutory Limitation on PJ
Most states grant where: SoP in state, Domiciled in state, Consent. + LAS
LAS
Gen– to the limits of the const (Ca)
Spec- specifies when ct can exercise
Constitutional Basis for PJ
MC (PA + FS) + FP and Substantial Justice
MC
Purpose Availment – avail of FS laws
FS- could fs being haled into ct
Fairness Factors (if spec)
Fairness Factors
Burden on D’s/W
State interest
P interest
General PJ
S&C - at home
can be sued in forum for any claim
Spec PJ
claim related to action on forum
can sue on that claim only in forum
SMJ
FQ OR CD
FQ
Arising under WPC
CD
CD rule + AIC
CD
Person– Phys present and intent to remain
Corp - PPB and ALL INC
Unincorp- all members
Minors/etc- domicile not rep
Alienage okay but no A v A
AIC
Whatever P claims in GF
AIC Aggregation
All Ps claims against one D
Joint t/f
Two ps/undiv int (if div- SJ)
(no agg of counterclaim)
AIC Equitable relief
P VP– will this be worth more than 75K
D VP– will this cost me more than 75K
SMJ Exceptions
Divorce, alimony, CS, Probate of estate
CA SMJ
Limited +$25
Unlimited = $25K
Small claims – less than 10K per person and less than 5K bus
Supplemental JX
Same CNOF
ct still has discr if state laws predom/complex or fed claim dismissed early
Removal
D ONLY + ALL Ds must agree
State → Fed
where could have been brought/ no later than 20 days after service of first removable doc
Removal Exceptions
In state rule - D cannot remove if P filed in his home/domiciled state (any D citz of forum state)
no rem more than 1 year after filed
(do not apply if FQ)
Remand
ONLY P
Fed → state bc removal was improper
30 days of removal (no limit if no SMJ)
Erie
State substantive law
Use State substantive
Always sub = SOL, elem of c/d, CoL rules, SoL tolling rules
Erie
Valid fed law? → apply
No → use tests
Outcome determinative
balance of interests
forum shopping avoidance
Venue
Proper where claim arose or property is located
Where any D resides
Fallback prov– no D resides = any district where D subject to PJ
Venue
C - where claim arose
K - entered/perf
PI/WFD- injury
Local action - prop
Venue
CA - where claim arose
K - entered/perf
PI/WFD- injury
Local action - prop
Venue Transfer
Any party/ct has discretion
OG Proper = transf in int of justice (public vs private)
OG Improper = transfer to proper venue or dismiss
(parties can waive improper)
Venue
OG Proper
Fed– another ct where could have been filed OR all parties consent (+PJ/SMJ)
CA- any time at judges’s disc– to where int/conv would be served
Venue
OG Not Proper
Fed– dismiss/transfer
CA– transfer
FNC
Other court = gravity
Fed- MAY dismiss/stay (public vs private)
CA- MAY dismiss or stay (int of justice; alt forum suitable; P&P)
FSC
Allowed both Fed/CA
Notice
Reas calculated under all circ to notify all parties to the action
SoP
Summons + Complaint
Within 90 days (fed)
Anywhere in FS (OOS if okay by law)
Anyone not a party to the case and + 18
Dismiss with prejudice if not met
Methods
Personal
Substituted (abode)
Agent
State law methods (where fed ct sits or service effectuated)
CA
Sub Service
Only if personal service cannot be completed + household member +18 / inform of contents / mail copy to party
Business Service
Officer manaager/GA
Minor/Etc Service
State law method in state where service to be made
Service by Mail
If Service waived– gets three extra days
Waiver of Service
P req D waives
D denies/fails – P use other method
D agrees– gets 60 days from date waiver sent to answer
Foreign Country service
Method allowed by international agreement
no agreement– as directed by US ct; or reas calc to give notice
method by FC law
method by foreign official in response to letter rogatory
PS in the FC (unless prohib)
mail sent by clerk of US ct req signed receipt (unless prohib)
Constructive Service
Serve D through reg mail– if D waives formal SoP
CA– allows publication if nothing else
Proving SoP
Unless waived, process serve files report with court detailing how service made + Service processer gives affidavit
Reach of Service
Within state where fed ct sits
o/s state if state allows
Interlocutory Injunction
PI – Moving party will suffer irreparable harm w/o + likely to succeed on merits
TRO- prevent immediate, irrep harm (expires in 14 days; show you tried to give notice; imm appealable)
Rule 11
All attys must certify all docs– contentions are warranted by law + factual contentions have evidentiary support
Rule 11 Sanctions
Ct can issue on its own, or motion (hearing req)
Safe Harbor Rule
21 days to fix disc problems before violation imposed
Complaint
Fed/Notice Pleading: S&P stmt of facts = enough info to put OP on notice + demand for relief + relief sought
CA/Fact Pleading: ultimate facts to each element + demand of relief for each claim + ID parties (PI/WFD/Punitive stated specifically)
Fed Complaint
Exceptions
Plead with particularity:
Fraud/mistake/spec dmgs/judgments or official docs to be relied on
Answer
Respond to each allegation – Admit/Deny allegations/lack suff info to admit/deny
Assert affirmative defenses
(Must also include counterclaim if compulsory)
21 days of service of process/14 after rule 12 ruling
Affirmative defenses- answer
Contrib negligence
claim preclusion
SoF
Fraud
SoL
SD
Rule 12
Lack of SMJ
Lack of PJ
Improper Venue
Insuff Process (CA to quash)
Insuff SoP
Failure to state a claim (CA GD/J on pldgs)
Failure to join necessary party (FRCP any time bf; CA SD pldg uncertain)
Motion for More Definitive Stmt
Complaint too vague/ambiguous + P cannot reas respond
D MUST make bf answering
CA + SD - pleading is uncertain
Motion to Strike
D can MTS from complaint any redundant, immaterial, impertinent, scandalous material
CA- AntiSlapp
Motion for Judgment on the Pleadings
Counterclaim
D vs P (table)
Must have jx (could be sjx)
Compulsory – same t/o + req in answer or waived
Permissive - diff t/o; not req in answer
Cross Claim
P vs D1 + D2 → D1 cross claim on D2
Same T/O
Never compulsory
Sjx
Amended Pleading
Right to Amend
Fed -
P = 1 w/in 21 days of serv/after resp or PA motion
(ow leave of ct)
D= once not later than 21 days - answer
CA
P = once bf answer/dem filed OR after dem filed but bf hearing (ow leave of ct)
CA GD
Pleading failed to state sufficient date to constitute CoA
Lacks SMJ
CA SD
Uncertain pleading
Complaint unclear
Lack of legal capacity to sue
Existence of another case between P + D with same CoA
Misjoinder
Failure to plead K oral or written
Failure to file req certifications
CA Motion to Quash
Special Appearance + sep from answer
either bf or concurrently with motion to strike answer
Lack of PJ; Insuff Process; Insuff SoP
Variance
Ev at trial does not match what was pleaded
Relation back
Claim
Fed
RB and same T/O as og pleading
Relation Back
party
Fed
Amend D– RB + same t/o+ new party knew of og claim and not prej in defending + bf mistake would have been included (90 days)
CA- Doe
Og complaint timely + included alleg against Doe + P gen ignorant as to id + facts giving rise to CoA → P can sub name within 3 years
Joinder
P looks to join
Joining a P = if they are willing
Joining a D = if P moves for
Amended Pleading as a matter of course
within 21 days
op has 14 days to respond
Amendment w/o rt
only with written consent of op + eave of court (motion)
granted if justice requires
Permissive Joinder
Same T/P + Common q of law or fact + ct has jc over parties and claim
Compulsory Joinder
NP
Without ct cannot grant complete relief
NP has nec legal interest that creates risk of mult oblig
NP has interest that may be impaired
Compulsory Joinder Reqs
Absentee joined as NP – if PJ over + will not destroy diversity
CJ FORCES party in
Joinder
Indispensable Parties
NP cannot be joined– ct asks
alt forum?
likelihood of prej to partues?
shape relief w/o?
P adeq remedy if case dismissed?
Impleader
D wants to join someone who may be liable to him for all/part
PLEASE PAY
D files TP complain within 14 days of answer → Permission from ct
D’s claim must be derivative of suit (no- if TPP only liable to P and not d1)
Intervention
NonParty wants to join in
Intervention LETS party in
Intervention as of right
Ab’s int will be harmed if not joined and no existing party will adeq rep him
+
Ab has unconst statutory right
Permissive Intervention
Court has discr where:
Ab has c/d shares common Q
Ab has const stat rt
ab = gov officer/agency and existing claim relates to o/a
(Ct should consider whether delay)
Interpleader
PROPERTY holder can compel mult claimants into one suit
Statutory: on cl div from at least one other cl and AIC +$500
Rule 22: CD and AIC +$75K
Class Action
CANT
Class Action Types
Anti Prjudice
Inj/decl judgment
Dmgs
CAFA
Gets you SMJ
any cm div of any opp party + aggreg claims +1 mil
Never for – less than 1– cb, sh claim against corp mgmt; state sec claims
Class Action Certification
Ct- early practicable time
define class + appt counsel
can appeal ILA bf FJ
judgment– binding to all cm unless opt out
Settlement - ct must approve
Discovery
Broader than admissible
to start →
meet and confer (at least 21 days bf SC) +
initial discl +
scheduling conf
Discovery Scope
Disc if
not priv
relevant to claim
proportional to needs of case
Mandatory Disclosures
(FRE)
Sources of disc info
dmgs
insurance
within 14 days M&C (joined parties/30)
Expert Discl (FRE)
90 days before trial
Expert + report
Pretrial Discl (FRE)
30 days before trial
detailed info about ev to be used
CA disclosures
not mandatory– done by agreement + relevant SM
Interrogatories
Written Q
resp- 30 days
Fed - no more than 25 w/ sub UOA
CA- 35 max unless ct permits ow
Depos
Q- written/oral
party- notice; non party -subpeona
Limits- fed 10 unl ct grants more (no more than 1 7 hr day) and CA no limits
distance- fed no more than 100 miles from empl
subject to rules of ev
RFP
Written request- party make docs avali
30 days after service
non party compelled via subpeona
RFA
Opp party shows jury
resp- 30 days
resp party - admit/deny/lack suff knowledge of
Physical/mental exams
Ct request req + condition at issue
A/C privilege
Made btwn A + C
Intended to be, and was, kept conf
To facilitate legal services
WP
Prepared for or in anticipation of litigation
NOT disc unless OP shows:
subst need + undue hardship to obtain on their own
Protective Orders
Limits disc material
sought by party seeking to limit
highly embarrassing, trade secrets, o/s scope
STD = GC
Vol Dismissal
Without leave of court
(FRE)
P gets one
before D serves answer or MSJ
without prejudice
Vol Dismissal
With Leave of Court
(FRE)
Required if answer/motion has happened already
Ct has discretion
W/o prej UO stated by ct
CANNOT assert if pending counterclaim
Default Judgment
D fails to plead- 21 days being served (60/waiver)
Clerk: D not resp at all; claim for $ dmgs; affidavit of sum owed; d not minor/incompetent
Judge: ^ not met/ D did respond (d may be entitled to hearing)
Recovery = demand in complaint
Set aside- if GC for 1 yr
Summary Judgment (MSJ)
Burden - moving party → no gen issue of mat fact + entitled to jdgt as MOL
Shift – Non party to show if triable issue exists
Evidence– in light most favorable to non moving party
Partial allowed
Rt to Jury
7th Amendment
In any pleading - within 14 days service of last pleading of triable issue (or waived)
6 min/12 max (if 6-unan)
Law + equity – jury rt does not extend to equity
Voir Dire
For cause:
Fed each side unlimited; CA each party unlimited
Peremptory
Fed: 3; CA :6
+ CA crim ¾ and Crim unan
Jury instructions
Parties submit at close of ev
ct informs of chosen and rejected
Raise bf jury charged
objection- make on record/away from jury (w/o ct- plain error)
Jury Verdicts
Gen - decides + amt
Special - decides + factual findings submitted by Q by ct
Gen with Interrogatories - gen + spec Qs
JMOL
(DV/FRE)
Before case submitted to jury
Reas jury has no reason to disagree as to result
JMOL– JNOV (CA)
Same as JMOL and RJMOL– can raise without preserving through JMOL
RJMOL
Only if preserved with JMOL before end of trial
same standard
28 days after entry of judgment
Motion for New Trial
28 days after judgment
prejudicial error
Prejudicial misconduct
J against weight of evidence
newly disc evidence
excessive/inadeq dmgs
Motion to Set Aside
Mistake/exc neglect (one year of j)
new ev not disc at trial (one year of j)
Fraud/misrep/ OP misconduct (on year of j)
J void (reas time)
J satisfied or discharged (reas time)
Any other reason justifying relief (reas time)
Appeals
30 days after j
Q of Law- De novo
Q of fact - not disturbed unless jury - reas jury would not reach or nonjury + clearly erroneous
Mixed - de novo
disc matters- abuse of distrction
FJR
Appeal only from FJ
Exc: Inj; certif of class action; orders involving debatable q of law
Interlocutory Appeals
reviewable as of right
Inj
receivers (appt of)
patents
property
where collateral order exception apples bc too distinct from merits of case + too imp to be denied imm review + unreviewable if waited
CP/RJ
Same Claim and Same Parties
FJ on Merits on claim
IP/CE
Same issue
issue essential to the J and Issue actually litigated
FJ on the Merits
asserted against party to previous case
IP Mutuality
Mutuality = only parties to prior litigation can assert IP
Non = privies can assert
IP Offensive vs Defensive
Offensive: P to prevent D from relitigating when D lost C1 against different P (Ct will balance)
Defensive: D seeks to prevent P from relitigating when P lost in C1 against diff D
