CivPro

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Author:
leonspinks
ID:
279237
Filename:
CivPro
Updated:
2014-07-19 15:14:18
Tags:
CivPro
Folders:
CivPro
Description:
CivPro
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  1. Requirements for PJ (fed law
    borrows from it)
    Law grants it

    o   Long-arm

    o   Personal

    • o   Consent
    •   
    • State Law is Constitutional
  2. When is process proper
    • -      when the forum’s law allows
    • for it
    • -     when it is constitutional – reasonably calculated to apprise interested parties of the
    • litigation
  3. Requirements for diversity jurisdiction
    amt in controversy exceeds 75K

    • o   cannot
    • aggregate w/ counterclaims

    • o   from
    • P’s POV

    -      complete diversity
  4. Relation back of amendments to conform with
    SOL
    • claims arose from same t/o AND party had reason to know (within time allowed for service) that but for
    • mistake in name they would have been sued (party)
  5. What are the proper federal methods for
    service of process
    • -      
    • AWASP

    • -      
    • Abode – leave w/ someone 13+ at D’s last known
    • place of residence
    • -      
    • W – D mails in waiver of service that P mailed to him
    • -      
    • A – agent (personal or
    • mail)
    • -      
    • S – state methods
    • -      
    • Personal
  6. Removal rules
    • -      
    • Any D can consent to removal and file within 30
    • days of service of process if the suit could have been appropriately filed
    • there

    • -      
    • If want to get in Fed Ct b/c of Diversity:

    • o   May
    • not remove more than 1 yr after axn was filed unless ct finds baa faith on P’s
    • part
  7. Two types of intervention
    • As of right (fed): A third party may intervene
    • as of right if it has interests which would be adversely affected and those
    • interests are not sufficiently protected by the existing parties.
    • -      
    • Permissive (both): A third party may intervene
    • permissively if there is a commonality of issues
    • in the suit and affecting the non-party.
  8. Motions for DV, JNOV, JMOL, or RJMOL
    • -      
    • DV/JMOL:

    • o   When
    • the evidence is viewed in the light most favorable to the non-movant, reasonable persons could not differ
    • -      
    • JNOV/RJMOL: must have asserted original motion on the same grounds. 
    • -      
    • Fed: can do after trial.  Both: do when trial ends.
  9. SJ
    • -      
    • No genuine issues of material fact exist, and
    • the movant is entitled to JML

    • -      
    • Evidence in light most favorable to non-movant
  10. Well-pleaded complaint rule
    • -      
    • The P must state the federal issue clearly on
    • the face of her well-pleaded complaint, and not merely
    • by means of some defense
  11. What is an indispensable party and what is
    the remedy for failure to join
    • -      
    • a party’s right to full
    • and fair trial would be prejudiced if they did not join

    • -      
    • remedy: dismissal if in equity and good
    • conscience
  12. CAFA jurisdiction for federal courts
    100+ Ps, $5M+ in aggregate, minimal diversity (any single P is from a different state than any single D)
  13. venue rules
    • -      
    • If all Ds live in
    • state, district where any D lives
    • -      
    • If land, district
    • where land is
    • -      
    • Where any substantial
    • part of claim arosex
  14. Determining where a person is
    a “citizen” for diversity issues
    • -      
    • Person including resident alien
    • – domiciled: where they live AND intend to return
    • -      
    • Corp – PPB or HQ
    • -      
    • Pure alien – by
    • any non-alien only, in any state

    • -      
    • Unincorporated
    • pship – each member individually
    • -      
    • US citizen abroad
    • – never
  15. What are the factors for
    reasonable exercise of personal jurisdiction (to satisfy DP PJ concerns)?
    • -      
    • existence of an
    • alternative forum

    • -      
    • burden on D

    • -      
    • convenience and effectiveness for relief of the claims for P

    • -      
    • most efficient judicial
    • resolution of dispute

    • -      
    • conflict w/ sovereignty
    • of D’s state

    • -      
    • extent of purposeful
    • interjection into the forum

    • -      
    • forum state’s interest
    • in the suit
  16. Erie Doctrine
    • there is a
    • conflicting federal law

    • but apply federal law to procedure, evidence, jury trial proceedings unless procedural law is outcome determinative, then balance and
    • likely apply state law
  17. Bases on which a new trial
    may be ordered
    • -      
    • juror misconduct

    • -      
    • new evidence
    • comes to light

    • -      
    • trial error affected parties’ substantial trial rights

    • -      
    • jury verdict
    • against manifest weight
    • of evidence

    • TIME:
    • Fed – 28 days
  18. Requirements for a motion for relief from judgment
    • -      
    • Time – up to a year from judgment

    • -      
    • Merit – there is merit to a claim or defense

    • -      
    • Equity – equity demands relief (fraud or perjury at trial)

    • -      
    • New – New facts
    • discovered that cast doubt on the judgment

    Due diligence – even w/ due diligence by moving party, that new evidence wouldn’t have been discovered the first time (it was impossible to discover them)
  19. Requirements to set aside
    default judgment
    liberlaly granted
  20. Requirements for
    interlocutory orders
    Close call / doubt

    • -      
    • Review would
    • materially advance the litigation

    • -      
    • Controlling issue of law
  21. Permissive vs Compulsory Counter Claims
    • Permissive = Not related to same T/O, may bring
    • Compulsory = Derives out of sameT/O, D must file
    • initially or lose the right
  22. Nonmutual offensive collateral estoppel
    • -      
    • Issue identical
    • to issue already litigated

    • -      
    • Essential to judgment of case

    • -      
    • Party against
    • whom it is brought (D) was a party

    • -      
    • and D had full
    • and fair opportunity to litigate the issue

    • -      
    • Party who brings it was
    • a party or is in privity with the party ß NO
  23. Four elements to establish
    issue preclusion:
    • -      
    • issue identical

    • -      
    • issue was actually
    • litigated and essential to a final decision on the merits in the prior case

    • -      
    • D was party and
    • had full / fair opportunity to litigate (be
    • heard on) the issue

    • -      
    • Party who brings
    • it is in privity or was party
  24. time for service of complaint on D
    If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
  25. Class certification reqs
    • Typicality –
    • rep’s issues typical of class’s issues
    • -      
    • Adequacy and
    • fairness – rep adequately and fairly represents class
    • -      
    • Numerosity –
    • needed for efficiency (40+) – joinder impracticable
    • -      
    • Commonality – there are common issues of law and fact common to class
  26. Types of interpleader
    diversity
    • traditional
    •    
    • statutory –
    • greater than or equal to $500, minimal diversity (any 2 Ds from diff state)
  27. Pleading Standards
    • Complaint must state facts sufficient to put D on
    • notice of all “plausible” claims

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