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Civ Pro II > Rules > Flashcards

Rules Flashcards

1
Q

§1391

A

required to do analysis in the court you’re in now and the court a party wishes to
transfer to in order to determine if either are proper venue

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2
Q

§1391(b)

A

3 possible ways a given judicial district can qualify as proper venue

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3
Q

1391(b)(1)

A

Residency if ALL defendants are residents of forum state

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4
Q

1391(b)(1) TEST

A

1.Determine residency of business entities, if
any, under (c)(2)
2. Are all D(s) residents of the forum?
3. If yes, find judicial district where at least 1 resides

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5
Q

1391(c)(2)

A

Residence of CORPORATION (c)(2)
i. For Defendants: resident of where subject to PJ
ii. For Plaintiffs: where their PBP
How do you determine? There is a split of authority. #1 use log arm statute and apply state law to case, or #2 or is PJ constitutionally correct? (O’Shea prefers #1)

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6
Q

1391(b)(2)

A

Substantial part of events or omissions giving rise to claim

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7
Q

1391(b)(3)

A

fall back provision – rarely, if ever, applies.
a. No other judicial district anywhere in the US would be proper under either (b)(1) or (b)(2), so (b)(3) provides where P filed suit to be appropriate venue – lay venue where PJ applies

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8
Q

1391(c)(1)

A

residence of natural persons
a. Natural person resident where domiciled (can only have 1 domicile)

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9
Q

1391(c)(3)

A

aliens: court don’t need to consider. Will be ignored and will NOT cause venue to be improper

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10
Q

§1391(d)

A

residence of corporation in multiple districts: resident in any district where subject to PJ as if
district were its own state

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11
Q

§1404(a)

A

transfer for convenience of the party (proper venue à proper venue) but other venue is more convenient. Transfer for convenience of parties and witnesses. OR in the interest of justice. Keep state law when transferring. Only applies to state law claims, federal court will always follow
precedent set in their own Circuits on FQ issues

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12
Q

§1406(a)

A

improper venue, court shall dismiss, or in interest of justice, transfer to proper venue
(improper venue à proper venue) change state law with transfer. Only applies to state law claims,
federal court will always follow precedent set in their own Circuits on FQ issues

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13
Q

Forum Non Conveniens

A

permits a court to decline to exercise jurisdiction if suit can be filed in a more
convenient forum. Federal court use: if convenient forum is in foreign country. State court use: convenient forum is in sister state or foreign country. Because typically transfer is impossible because out of country

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14
Q

Erie Twin Aims

A

Prevent forum shopping
Prevent unequal administration of justice

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15
Q

T1

A

Federal Statutes
1. Is there a conflict
2. Is the act rationally classifiable as procedural?

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16
Q

T2

A

Federal Rules
1. Is the rule rationally classifiable as procedural?\
2. Does the rule abridge, enlarge, or modify any substantive right?

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17
Q

2072

A

The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrate judges thereof) and courts of appeals. Such rules shall not abridge, enlarge or modify any substantive right.

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18
Q

T3

A

Standard Erie
1. Rationally Classifiable as Procedural?
2. Modified Outcome Determinative Test

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19
Q

Modified Outcome Determinative Test

A

At the prefiling stage, would the P choose federal forum to gain distinct substantial advantage?

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20
Q

FRCP 8(a)

A

Requirements: just enough detail to let D know what they’re being sued for and where it arose from
a. Short, plain statement of jurisdiction – need to show SMJ
b. Short, plain statement of facts – P must plead facts supporting plausible claim
c. Demand for relief (damages, injunction. What do you want?)

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21
Q

FRCP 8(a) exceptions

A

FRCP 9(b): fraud or mistake: When alleging fraud or mistake, party must state with particularity
circumstances constituting fraud or mistake – pretty much heightened pleading standard for fraud
and mistake allegations

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22
Q

FRCP 12(b)

A
  1. Lack SMJ
  2. Lack PJ
  3. Improper venue
  4. Insufficient service of process
  5. failure to state a claim
  6. failure to join a party under rule 19
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23
Q

12(a)(4)(A)

A

If MTD granted, defendant will have 14 days to file their answer

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24
Q

26(f)

A

mandatory conference
a. Normally can only begin formal discovery after 26(f) conference
b. Create proposed scheduling order – parties negotiate to aid judge in creating schedule
c. Attorneys record are responsible for arranging conference, participating in good faith, and to submit
plan to the court within 14 days after conference. 26(f)(2)

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25
Q

26(a)(1)

A

initial disclosures
i. Name and contact information of witnesses likely to have information
ii. Copy of all documents that may be used to support claims or defenses
iii. Calculation of damages
iv. Insurance agreement under which an insurance company may be liable

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26
Q

26(a)(1)(B):

A

Parties must provide initial disclosure within 14 days after conference

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27
Q

26(b)(3)(B)

A

opinion work product higher standard with FWP. Need stronger showing of necessity and unavailability by any other means.

28
Q

26(b)(3)(A)

A

Fact work Product - documents and tangible things. Contains facts from litigation but not
mental impressions of counsel. required to make show of necessity (overcome thru show of hardship)
i. Ordinarily things prepared in anticipation of litigation by another party may not be discoverable
unless:
1. Within scope
2. Can show substantial need for materials to prepare its case, without undue hardship, obtain
substantial equivalent

29
Q

26(b)(3)(C)

A

Exception to work product, don’t have to show necessity when its about person’s own statement, must turn over if verbatim

30
Q

FRCP 30

A

Depositions

31
Q

30(b)(6)

A

request organization for deposition, organization will be required to name persons to attend

32
Q

30(a)(1)

A

Party may dispose any person, including a party, without leave of the court. 30(a)(1)
1. Must obtain leave if:
a. Parties have not stipulated to the deposition and
i. Deposition would result in more than 10
ii. Deponent has already been deposed in case, or
iii. Seeks to depose prior to time allowed
b. Deponent is confined in prison
2. Reasonable notice must be provided and identify name of person to be deposed, time, location…

33
Q

Deposition

A

10 Max
transcribed, under oath
3. If asking Q that is objectionable, attorney will object, but person will still be required to answer
4. Depositions expensive for everyone – cost of discovery can be weapon and deposition useful
Disadvantage of depositions: very expensive

34
Q

FRCP 33

A

interrogatories
limited to 25 per party
Due in 30 days

35
Q

Interrograties

A

May relate to any matter within scope of discovery, not objectionable if it asks for opinion or contention that relates to facts of application if law
ii. Must be responded to by party they are directed or if a business an officer or agent of business
iii. Must be in writing and under oath
iv. Must object specifically to the question, any ground that is not timely is deemed to be waived
unless otherwise ordered by the court
v. Downfall of interrogatories: not spontaneous and not able to see reaction to questions

36
Q

FRCP 34

A

Request for Production
parties are allowed copies of documents related to the suit, must
be stated with particularity.
i. Responses due 30 days from delivery
ii. Parties allowed to request copies of:
1. Any designated documents or electronically stored information (ESI); or
2. Other designated things
iii. Request must be described with reasonable particularity
iv. Specify reasonable time, place, and manner of inspection; and
v. May specify form or forms of which ESI is stored

37
Q

FRCP 36

A

Request for Admissions
Due within 30 days

38
Q

FRCP 35

A

Physicals and Mental examination
medical condition must be in controversy. Court must
issue an order to allow for this examination

39
Q

Protective Order

A

decree by a court to protect a person or legal entity against harassment by another person or to protect certain documents such as: trade secrets, against discovery in the litigation process court please tell them that I don’t need to do this

40
Q

Motion to Compel

A

request by one party to the court for an order requiring the other side to comply
with a discovery request

41
Q

Sanctions

A

court may impose sanctions on a party when they fail to comply with basic discovery rules or
fail to participate in discovery

42
Q

Claims and Counterclaims

A

FRCP 18(a), 13(a) & (b): P may join, as independent or alternative claims, any
claims she has against D – 18(a)

43
Q

13(a) & (b)

A

D may assert any counterclaim against P any claim he may have against

44
Q

13(a)

A

compulsory when it arises out of same transaction or occurrence that is
subject matter of opposing party’s claim, and does not require adding another party who court does
not have jurisdiction over – must assert in THIS case or waive claim

45
Q

13(b)

A

party may state a counterclaim against an opposing party that is not
compulsory. Does not need to arise from same T/O – may bring it or may wait

46
Q

13(g)

A

claim can be made against co-party if – Can be made if some transaction or
occurrence of original action. If try CC and no SMJ (because of no diversity) need to look at 1367
supplemental jurisdiction and determine if CNOF (will be met because same T/O). 1367(b) will NOT
apply because for P and not D.

47
Q

20(a)

A

proper party being joined. 2 things need to be true: (1) same T/O and (2) raise at least 1 common
question of fact

48
Q

20(a)(1)

A

Joinder by Plaintiff
Assert a right under relief jointly, severally, or in the alternative out of same transaction or occurrence
and there are common question of law or fact

49
Q

20(a)(2)

A

Joinder by Defendant
Joinder of Third Parties under Rule 13(h) looking glass to Rule 19 and 20
13(h) governs someone who is already a party to suit and wants to haul in someone who they
believe is responsible. Want to bring in because otherwise can’t coherently grant relief
Schoot: federal court can consider a claim against a nonresident 3PD if: (1) long arm jurisdiction permits,(2) matter brought within appropriate venue, and (3) joinder satisfies FRCP

50
Q

R. 14

A

Third Parties
4 types of claims allowed
1. Impleader/Indemnity claim 14(a) – indemnity (all) or contribution (partial)
2. CC by 3PD against 3d Party P and XC by 3PD against another 3PD 14(a)(2)(B)
3. 3PD against P 14(a)(2)(D) – need same T/O
4. P against 3PD 14(a)(3) – need same T/O

51
Q

14(a)

A

Prejudice to original P
Complication of issues at trial
Likelihood of trial delay
Timeliness of the motion to implead

52
Q

FRCP 19

A

Compulsory Claim

53
Q

19(a)(1)(A)

A

Person is required to be joined if:
1. Court cannot accord complete relief to the parties

54
Q

19(a)(1)(B)(1)

A

Person claims an interest relating to the action that disposing of the action in their absence may:
a. Impair or impede person’s ability to protect their interest

55
Q

19(a)(1(B)(2)

A

Person claims an interest relating to the action that disposing of the action in their absence may:
Leave possibility that D will be subject to double or otherwise inconsistent obligation

56
Q

24(a)(2)

A

Intervention of RIGHT
The motion to intervene is timely: factors include (from Sierra Club)
1. Length of time during which would-be intervenor actually knew or reasonably should have
known of its interest before it petitioned for leave to intervene
2. Extent of prejudice that existing parties to litigation may suffer as result of intervenor’s failure to
apply for intervention as soon as it knew/reasonably should have known of its interest
3. Extent of prejudice would-be intervenor may suffer if intervention is denied
AND
4. Existence of unusual circumstances militating either for or against determination that the
application is timely

57
Q

24(b)

A

Permissive intervention
On a timely motion, court may permit intervenor if: need to show your claim and case have
a. Given conditional right to intervene by statute at least 1 common question – up to court

58
Q

FRCP 56

A

Summary Judgement
what does the court have to decide? Whether there is an issue of genuine fact
56(c)(1)(A)&(B) movant carries burden to prove SJ standard

59
Q

Claim Preclusion

A

Claims in A1 and A2 must arise from the same cause of action
2. Judgment in A1 must be final, valid, and on the merits
3. A1 and A2 must involve the same parties or those in privity with them

60
Q

Transactional Approach

A

Relation of facts in time, space, origin, or motivation
b. Trial convenience
c. Parties expectations

61
Q

Primary Rights

A

Claims involving certain primary rights that claimants seek to vindicate
i. i.e. be free from physical injury, free from injury to property, have agreements performed, be free
of injury to reputation
b. if any new litigation, from same parties or same incident, brings up any primary right brought up in
first suit, it will be precluded

62
Q

Same Evidence Approach (

A

Narrow scope of preclusion
b. An identical claim must be brought in first action and will be barred by preclusion if not joined with
original action
c. Claims must utilize same evidence and involve same claim to be considered identical

63
Q

FInal

A

trial court has resolved and judgment entered

64
Q

Valid

A

no defect of notice/service of process or jurisdiction (or fraud, duress, mistake)
a. As long as judgment can’t be successfully collaterally attacked or attacked via FRCP 60(b) motion
which is valid for preclusion purposes

65
Q

ON the Merits

A

judgment resolved the substance of P claims whether favorably or unfavorably
a. P wins = on the merits
b. D wins = after trial = on the merits

66
Q

Those in privity

A

Owners of successive interests in property
b. Other substantive legal relationships
i. Bailor/bailee
ii. Indemnitor/indemnitee
iii. Assignor/assignee
c. Representational relationships – exception C for parties in privity
i. Class action – named or “lead” P represent class members
ii. Trustee – representing beneficiary of trust
iii. Guardian ad litem – litigating on behalf of a child (think bad divorce cases)
iv. Executor of estate – representing claimants after death
d. Due process limits on when it is ok to say how far representational relationships can extend

67
Q

6 exceptions to those in privity

A

Contract party agrees in K to be bound by outcome of action between others
b. Traditional substantive relationships long viewed as creating privity
c. Adequate representation (what FAA was trying to argue) but must have due process safeguards
d. Non-party assumed control over earlier litigation
e. Non-party bringing later suit is agent or proxy of party to earlier suit (FAA second argument)
f. Earlier suit was true in rem proceeding (in which all are bound by prior proceeding anyway)

Civ Pro II (2 decks)

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