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Civil Procedure 1L flashcards
1
Q

subject matter jurisdiction

A

federal question jurisdiction

OR

diversity jurisdiction

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2
Q

federal question jurisdiction

A

complaint alleges a claim that arises under federal law

well-pleaded complaint rule = federal question must be presented on the face of the π’s complaint

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3
Q

diversity jurisdiction

A

complete diversity = every citizen on the π’s side must be different than EVERY citizenship represented on the ∆’s side

AND

the amount in controversy exceeds $75,000
- one πcan aggregate all claims for total amount
- multiple π = each has to meet the amount

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4
Q

citizenship

A

individuals = state or country of domicile

corporations = state of incorporation AND principal place of business

unincorporated = every state of which its members are citizens

class action = citizenship of named π

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5
Q

supplemental jurisdiction

A

allows a federal court with valid smj to hear additional claims over which they would not independently have smj jurisdiction

all claims constitute the same case or controversy = arise out of the same nucleus of operative facts

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6
Q

supplemental jurisdiction under federal question cases

A

state law claim can be heard

if arises out of the same transaction or occurance

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7
Q

supplemental jurisdiction under diversity cases

A

compulsory counterclaims = allowed

permissive counterclaims = only allowed if it independently satisfy diversity jurisdiction

cross-claims = if it arises out of the same transaction or occurrence as the og claim

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8
Q

compulsory counterclaim

A

counterclaim that arises out of the same transaction or occurrence as the original claim filed

∆ cannot sue on this matter later

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9
Q

permissive counterclaims

A

counterclaim that DOES NOT arise out of the same transaction or occurrence

basically unrelated

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10
Q

cross-claim

A

πagainst πOR ∆against ∆

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11
Q

removal

A

allows ∆to move a case from state court to federal court

brought within 30 days (cannot happen after 1 year)

if federal question then if a well-pleaded complaint rule satisfied

if diversity then complete diversity + over $75,000 + no ∆is a citizen of the state

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12
Q

what is needed to bring a case in federal court

A

subject matter jurisdiction

+

personal jurisdiction

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13
Q

ways to achieve person jurisdiction

A

(1) domicile

(2) physical presence (not fraud or force)

(3) consent

(4) waiver (substantially participate)

(5) long arm statute

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14
Q

long arm statute

A

allows states to exercise personal jurisdiction over non-resident ∆

minimum contact between ∆and forum state

(1) general OR specific jurisdiction

(2) does not offend the traditional notions of fair play and substantial justice

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15
Q

general jurisdiction

A

under long-arm statute

present when the ∆ is essentially “at home” in the forum state

∆ can be sued on any claim

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16
Q

specific jurisdiction

A

under long-arm statue

gives courts jurisdiction based on ∆’s specific contact with the state
- purposefully availed himself AND
- knew or should reasonably have anticipated

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17
Q

stream of commerce

A

under personal jurisidiction

places product in the stream of commerce in the forum state

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18
Q

internet cases

A

under specific jurisdiction

passive websites = typically insufficient

active websites = used to online commerce = essentially “at home”

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19
Q

service of process in the US

A

within 90 days & any nonparty over 18

  • delivering to individual directly
  • leaving copy at dwelling with someone of suitable age
  • copy to agent
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20
Q

service of process to individuals in a foreign country

A

within 90 days

  • delivering to individual directly
  • mail with signed receipt
  • as court orders
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21
Q

service of process to corporations

A

within 90 days

delivering copy to an
- officer
- agent
- manager
- any other authorized by appointment

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22
Q

venue

A

judicial district in which a lawsuit may be filed or commenced

(1) any ∆resides, IF ALL ∆ reside in the same state

(2) a substantial part of the event occurred or property OR

(3) if 1 and 2 are not available, any district where ∆is subject to personal jurisdiction

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23
Q

residence for venue

A

individual = where domiciled

business entities = where they are subject to personal jurisdiction

foreign entities = any judicial district

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24
Q

change of venue for proper venue

A

for the convenience of the parties or witnesses to any court where the case COULD HAVE BEEN OG FILED

if diversity case = apply choice of law from OG court

if federal question = federal law as interpreted by the new court

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25
Q

change of venue for improper venue

A

court MUST
(1) dismiss the case OR
(2) transfer the case where it could have been filed

if diversity case = apply choice of law of the state where it is located

if federal question = federal law as interpreted by the new court

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26
Q

abstention

A

federal court may abstain from hearing a case of a pending matter in state court to “avoid intruding upon the powers of the state court”

27
Q

preliminary injunction

A

temp court order that preserves the status quo until a case is decided

(1) prohibitory injunction = prohibits or restrains a party from engaging in a specific behavior

(2) mandatory injunction = requires the ∆to engage in an affirmative act

28
Q

preliminary injunction/TRO granted content requirements

A

(1) reason why it was issued
(2) terms specifically
(3) describe in reasonable detail the acts restrained or required

29
Q

preliminary injunction/TRO requirements

A
  • suffer irreparable harm
  • suffer greater harm than the ∆
  • likely to succeed on merits AND
  • best interest of the public
30
Q

notice for preliminary injunction

A

non-moving party MUST be given notice and an opportunity to oppose at a hearing

31
Q

temporary restraining order

A

before preliminary injunction

preserved the status quo until a hearing on the application on the preliminary injunction

cannot last more than 14 days

32
Q

notice for temporary restraining order

A

court may issue without written or oral notice to the non-moving party IF
- immediate and irreparable harm
- attorney certifies in writing efforts were made

33
Q

complaint requirements

A

first pleading, starts a lawsuit

(1) grounds for subject matter jurisdiction

(2) a short statement of the claims

(3) a demand for relief

34
Q

pre-answer motions

A

∆ MAY file a pre-answer motion to respond to the answer

  • lack of subject matter jurisdiction
  • lack of personal jurisdiction
  • improper venue
  • insufficient service of process
  • failure to state a claim upon which relief can be granted
  • failure to join an indispensable party under compulsory joinder
35
Q

answer

A

14 days after pre-answer motion
OR
21 days after complaint

deny or admit allegations (failure to deny is an admission)

raise any affirmative defenses

36
Q

reply

A

πresponse to ∆’s answers

within 21 days of answer

37
Q

amendment to a pleading

A

by right = once within 21 days

by leave of court = when justice so requires

38
Q

relation back doctrine

A

related to an amendment to a pleading

(1) new claims or defense = will relate back to the original date of the pleading if it arose out of the same transaction or occurrence

(2) new party = arouse out of the same transaction or occurance + new party recieves notice within 90 days + knew or should have known action would be brought

39
Q

compulsory joinder

A

indispensable parties

πmust join an absent party or face dismissal if:
(1) court has personal jurisdiction over the party
(2) would not destroy subject matter jurisdiction AND
(3) relief cannot be afforded without party

40
Q

permissive joinder

A

parties MAY join if:
(1) arises out of the same transaction or occurrence AND
(2) question of fact or law common to all parties

41
Q

interpleader

A

allows πor ∆to initiate a lawsuit to compel two or more parties to resolve a dispute

ex. when there are multiple claims to one thing like life insurance or property

42
Q

intervention

A

allows a 3rd party to join

as a right = without them it would impair their ability to protect their interest in property or transaction

permissive = common interest in law or fact AND must be supported by its own jurisdictional grounds

43
Q

requirements for a class action

A

(1) so numerous that joinder of all parties is impracticable

(2) common question of law or fact

(3) names parties’ interest are typical of the class AND

(4) named parties will adequately represent the class

44
Q

pretrial conferences
rule 26(f)

A

parties can confer if its practical to:

(1) consider their claims, defenses, settlement, disclosures AND

(2) submit a proposed discovery plan to the court

45
Q

initial disclosures

A

14 days after rule 26(f) conference

(1) names, addresses, and number of individuals likely to have discoverable information

(2) copies of documents including insurance info

(3) computation of damages

46
Q

scope of discovery

A

relevant + proportional

limitations
- privileged
- unreasonably cumulative
- can obtain in less expensive or time-consuming way

47
Q

depositions

A

any party or nonparty witness

limited to 10 total

limited to one 7 hour day

48
Q

interrogatories

A

only parties

25 limit

relevant and proportional

answers and objections within 30 days

49
Q

duty to preserve relevant evidence

A

when it is reasonably anticipated that an action will be filed, parties have a duty to preserve

50
Q

attorney work product doctrine

A

protects material prepared by attorney or team in anticipation of or during litigation

attorneys conclusions, opinions, strategy, and research NEVER discoverable

51
Q

sanctions

A

failure to appear or participate in good faith in pretrial conference

failure to participate in the framing of a discovery plan

failure to preserve electronically stored information

52
Q

rule 11(b)

A
  • attn signature on papers served
  • swearing everything is the truth
  • give attorney opportunity to correct before sanctions - 21 days
53
Q

rule 12(b) motion to dismiss

A

pretrial motion

  • lack of subject matter jurisdiction
  • lack of personal jurisdiction
  • improper venue
  • insufficient service of process
  • failure to state a claim upon which relief can be granted
  • failure to join an indispensable party under compulsory joinder
54
Q

motion for summary judgment

A

pretrial motions

any time until 30 days after the close of discovery (based on schedule)

when viewing the evidence in the light most favorable to the moving party
(1) no dispute of material facts
(2) entitled to judgement as a matter of law

partial motion can be granted

not appealable

55
Q

motion for judgement as a matter of law (JMOL)

A

trial motion

after the closing of the nonmoving party or after the close of all evidence

when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party

56
Q

motion for new trial

A
  • error made at trial
  • newly discovered evidence that would alter the outcome
  • prejudicial misconduct of counsel, party, judge, or juror
  • verdict that is against the clear weight of the evidence
  • verdict based on false evidence that a new trial is necessary
  • verdict is excessive or inadequate
57
Q

remittitur

A

allows a judge to reduce the amount of damages awarded by a jury if they are excessive

58
Q

res judicata = claim preclusion

A

prevents a party from re-litigating a claim after a court has issued a final judgment

identical claims are barred

(1) valid final judgement on the merits
(2) sufficiently identical = same transaction or occurrence
(3) same parties

59
Q

collateral estoppel = issue preclusion

A

bars re-litigation of issues of facts or law

(1) issue sought must be the same
(2) actually litigated
(3) valid final judgement on the merits
(4) issue was an essential to prior judgement

60
Q

mandamus review

A

court of appeals can review an order that is abuse of judicial authority

61
Q

general v specific jurisdiction

A

used to show sufficient minimum contacts for long arm statute

specific = lawsuit arise out of or relate to the ∆’s contact with the forum state

general = ∆ is essentially at home in the state

62
Q

erie doctrine

A

state substantive law and federal procedural law

when resolving disputes that do not involve federal question

63
Q

final judgment rule

A

appeals only allowed after final judgement

exceptions:
- injunctions
- certification of district court
- class action certifications
- appointment of receiver
- admiralty case
- bankruptcy cases
- patent infringement
- mandamus

64
Q

interlocutory order

A

matter that relates to some intermediate matter in the case

any order other than the final order

not immediately appealable

ex. motion to dismiss, lack of subject matter,

Civil Procedure (1 decks)

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