Fed Civ Pro

The flashcards below were created by user mjabali on FreezingBlue Flashcards.

  1. under federal law, a claim of improper venue must be raised at the first opportunity (i.e. either a pre-answer motion to dismiss or D's answer, whichever comes first)
  2. venue concerns which district should hear a case
  3. federal venue is proper in a district
    • where any D resides if ALL Ds reside in the same state
    • where the claim arose (i.e where a substantial part of the events or omissions on which the claim is based occurred or where a substantial part of the property that is the subject of the action is located OR
    • if neither of the above, in any district where the D can be served
  4. for federal venue, P's residence does not count
  5. residence=
    • (individuals) domicile
    • (biz) wherever personal jurisdiction exists
  6. for a case begun in state court and removed to fed court, venue is automatically proper in the fed district where the state court sits, even if that would otherwise not be so.
  7. Erie=
    in diversity cases, federal courts apply state substantive law
  8. substantive law=
    • substantive rules that determine who wins and loses
    • SOL
    • burdens of proof on state claims
    • state rules on choice
  9. fed procedures apply on state-law claims
  10. pleadings: for diversity actions, state law controls when an action is begun
  11. pleadings: compliant: used to state a claim for relief; the P or D may file a claim against a co-party, called a cross claim complaint; a D who impleads a third party D files a third party complaint
  12. pleadings: answer: filed by the party against whom a claim is made; it may contain responses to the allegations of the complaint, affirmative defenses, and counterclaims
  13. recover is not limited by the claim for relief as stated in the complaint, except for default judgments
  14. notice pleading: all that is required is a short and plain statement of the claim
  15. types of claims requiring special pleading
    • fraud or mistake
    • special damages
  16. complaint should state a plausible case for recovery
  17. motion to dismiss may be used to raise:
    • lack of subject matter jurisdiction
    • lack personal jurisdiction
    • improper venue
    • failure to state a claim upon which relief can be granted
    • failure to join a necessary party
    • forum non conveniens
  18. claim of no personal jurisdiction or a claim of improper venue must be made at the earliest opportunity (i.e. the answer or a pre-answer motion to dismiss)
  19. lack of subject matter jurisdiction cannot be waived; it can be raised by any party at any time, including for the first time on appeal or by the court itself
  20. most claims are waived if NOT timely raised
  21. motion for judgement on the pleadings: appropriate when the pleadings completely agree about the facts, no material disagreement; if there is any factual dispute, proper motion is for summary judgment
  22. motion to strike: an be used to delete from pleadings scandalous or prejudicial matters that are NOT relevant to the case at hand. Also used by the P to strike a legally invalid defense
  23. Affirmative defenses MUST be pleaded in the D's answer.
  24. answers ordinarily must be filed with i21 days of service of the pleading to which it responds
  25. pleadings may be amended ONCE at any time within 21 days of service of the pleading or within 21 days of the D's response
  26. after the party has amended once OR the time for amending as of right has elapsed, leave to amend must be sought from the court
  27. leave to amend should be freely granted;
  28. judge must have a reason for denying leave to amend
  29. if the statute of limitations has run, then relation back determines whether the amended pleading allowed or time-barred
  30. an amendment relates back to the date of the original IF it concerns:
    the same conduct, transaction, or occurrence as the original pleading
  31. key to doctrine of relation back is notice- cannot have the effect of surprising the other party
  32. an amendment to add or change a party against whom a claim is asserted must:
    • concern the same conduct, transaction, or occurrence as the original pleading; AND
    • the party to be added must have known or had reason to know that the action should have been brought against that party
  33. most pleadings are NOT verified nor need they be
  34. pleadings and all other documents- including motions of all sorts and discovery requests must be certified by the attorny of record
  35. signature certiefies that:
    • there is an apporpritate legal and factual basis for filing
    • attorney certifies that to the best of her knowledge after reasonable inquiry there is NOT improper purpose
    • the legal contentions are warranted by existing law or by a nonfrivolous argument for a change in the law AND
    • the factual allegations have evidentiary support or are likely to have such support after discovery
  36. violation of certification requirement can be raised by court or opposing party to move to dismiss or seek sanctions
    the attorney can be made to bear the cost of baseless or improper filing
  37. real party in interest: An action should not be dismissed for having the wrong P until a reasonable time has been made for the substitution of the correct P
  38. minors and incompetents may sue or be sued only through a guardian
  39. partnership can sue or be sued as an entity if federal jurisdiction is based on federal questions
  40. if jurisdiction is based on diversity, then each and every partner must be made a party to the litigation (complete diversity applies).
  41. permissive joinder: any number of plaintiffs may join if they assert claims arising out of the same transaction or occurrence AND there is common question of law or fact
  42. permissive joinder: any number of Ds may be joined in the same action if the claims against them arise out of the same transaction or occurrence and there is a common question of law or fact.
  43. permissive joinder: diversity cases: no party can be joined whose presence would defeat complete diversity
  44. permissive joinder: if complete diversity is maintained and if ANY P has a claim that exceeds $75k, other Ps with smaller claims can come in under supplemental jurisidiction
  45. compulsory joinder of parties: a necessary party is someone whose participation in the lawsuit is necessary for a just adjudication
  46. necessary party= absent that party, complete relief cannot be accorded to the existing parties; has an interest in the litigation which will be impeded if the litigation goes forward without that party; OR there is a substantial risk of double or inconsistent liability.
  47. a necessary party MUST be joined if feasible
  48. feasible=
    it will not deprive the court of SMJ by destroying complete diversity AND the court can assert personal jurisdiction over the necessary party.
  49. necessary party: bulge provision=
    a necessary party may be served under any of the provisions of the state long-arm statute + a necessary party may be served within 100 miles of the federal courthouse.
  50. If a necessary party CANNOT be joined, the court decides whether to continue without the necessary  party (typically the case) or dismiss the suit (rare).
  51. necessary party: when the suit is dismissed, party is considered indispensable
  52. intervention= outsider volunteers to enter a lawsuit.
  53. intervention as of right may be had when the outsider claims an interest in the subject matter of the lawsuit that, as a practical matter, may be compromised by the disposition of the pending action
  54. permissive intervention mat be allowed whenever there is a common question of law or fact between the intervenor's claim and the main claim
  55. permissive intervention: must ask the court's permission and is up to the court's sound discretion.
  56. intervention must be timely via "reasonable promptness"
  57. no supplemental jurisdiction for intervention i.e. no one can intervene whose presence would destroy complete diversity or whose claim does not exceed $75,000
  58. interpleader is generally used to resolve the problem of competing claims to the same property
  59. interpleader: stake=
    property at issue
  60. interpleader: person holding property= stakeholder; persons claiming the property= claimants
  61. statutory interpleader= special jurisdiction minimum of only $501; nationwide service of process; venue is proper in any district where any claimant resides; SMJ based on minimal diversity (i.e. any two claimants must be from different states)
  62. joinder: as between the same P and same D, all claims may be joined and claims need not be related
  63. joinder: in a diversity case P can aggregate all claims against the D to exceed the jurisdictional minimum ($75k+)
  64. joinder: if the original claim is based on federal question jurisdiction, then a nonfederal claim may be joined only if diversity jurisdiction exists or if the two claims are part of the same case or controversy as the federal claim such that supplemental jurisdiction applies
  65. compulsory counterclaim=  arises out of the same transaction or occurrence as the claim to which it responds.
  66. compulsory counterclaim is lost if it is not pleaded
  67. compulsory counterclaim: no independent jurisdiction is required. if there is SMJ over the main claim, there is SMJ over a compulsory counterclaim.
  68. supplemental jurisdiction covers compulsory counterclaims
  69. compulsory counterclaim: filing of the complaint tolls the SOL for the main claim AND any compulsory counterclaim(s).
  70. permissive counterclaims: do NOT arise out of the same transaction or occurrence. It is unrelated to the main claim
  71. permissive counterclaims may be pleaded OR raised later
  72. permissive counterclaims: require a jurisdictional base- must be a federal claim or diversity jurisdiction with > $75,000 in issue.
  73. permissive counterclaims barred by the SOL cannot be brought.
  74. cross-claims are asserted against a co-party (ie. P vs co-P, D v. co-D).
  75. cross claims MUST arise out of the same transaction or occurrence as the main claim and is NEVER compulsory
  76. impleader (third party practice)=
    D brings into the suit someone who is or may be liable to the D for all or party of the P's claim against him
  77. impleaded party= 3rd party D
  78. original D= 3rd party P as against the 3rd party D
  79. interpleader: SMJ: comes under supplemental jurisdiction i.e. citizenship of 3rd party D does not matter; amount of claim against 3rd party D does NOT matter; extends to claim by the D against the impleaded 3rd party D
  80. supplemental jurisdiction does NTO extend to claims by the original P against the 3rd party D
  81. impleader: Ps cannot make a claim against the 3rd party D UNLESS complete diversity is met, or there is federal question jurisdiction.
  82. impleader: in addition to all other grounds of personal jurisdiction, 3rd party D may be served within 100 miles of the courthouse
  83. class actions prereqs: numerousness (too many parties to join), common questions of law or fact, typicality of claims by the class representatives; typicality of claims by the class reps; adequacy of representation by the rep's lawyer
  84. dismissal or compromise of a class action requires judicial approval
  85. class actions: diversity jurisdiction: named reps must be completely diverse from the opposing parties AND at least one plaintiff has a claim worth > $75k
  86. class action fairness act allows very large actions involving 100 or more members with more than $5 mil at stake and only minimal diversity
  87. mandatory disclosures: initial disclosures, disclosure of expert witnesses, pretrial disclosures
  88. initial disclosures=
    • -names and addresses of persons with potentially discoverable information
    • -copies or descriptions of relevant documents or things
    • - computation of damages claimed
    • - applicable insurance agreements
  89. disclosure of expert witnesses=
    • names of expert witnesses who will be called at trial
    • qualifications, publications, opinions, information on which they will base their opinions, other cases in which they have testified, and compensation
  90. pretrial disclosures=
    • - 30 days before trial
    • -list of witnesses and exhibits
    • - any objections must be made within 14 days after disclosure or they are waived unless excused by the court for good cause
  91. scope of discovery: you can discover anything that might be admissible at trial OR that might lead to something that might be admissible at trial; general rule is relevance
  92. scope of discovery is NOT LIMITED to admissible evidence (e.g. hearsay is NOT a valid objection to discovery as it might lead to other evidence that is admissible)
  93. exceptions to discovery (list):
    • evidentiary privilege
    • work product rule
    • experts
    • protective orders
  94. exceptions to discovery: evidentiary privilege: anything covered by a true evidentiary privilege is NOT discoverable (e.g. attorney-client privilege)
  95. work product: documents and things prepared in anticipation of litigation by or for another party or her representative creates a qualified immunity from discovery
  96. work product immunity can be overcome if the party seeking discovery shows need for the document or thing AND that information cannot be obtained elsewhere.
  97. work product: you can always get a copy of your own statements whether you are a party or mere witness
  98. work product:  can NEVER discover the mental impressions of an attoreny
  99. if expert is NOT going to be called as a witness, no discovery absent exceptional circumstances
  100. experts: can discover the expert's report but draft reports ARE NOT discoverable
  101. experts: communications between counsel and the expert generally NOT discoverable. however, can discover the amount of compensation, and the facts, data, and assumptions provided to the expert by the lawyer.
  102. protective orders: court can order to compel or restrain discovery for "good cause"
  103. discovery devices: oral deposition, written deposition, interrogatories, discovery and inspection of documents and land, physical and mental examination, request for admission
  104. oral deposition: questions asked & answered orally under oath; limited to 10 depositions unless court allows more; each deposition limited to one day of 7 hours unless court allows more; any kind of notice suffices for the deposition of a party, but a deposition of a nonparty witness requires a subpoena; if subpoena decus tecum, deponent must bring specified documents or things;  can be taken at any time after the party has made mandatory disclosures; may be taken before any notary public
  105. written deposition: questions delivered to an officer who asks questions orally which were written down before hand; rarely used
  106. interrogatories= questions asked in writing to be answered under oath in writing; may only be used against a party; limited to 25 interrogatories unless court allows more; responses required within 30 days.
  107. discovery and inspection of documents and land= request to produce and permit inspection; applies only to docs and land under the control of a party; the thing to be produced and inspected must be described with particularity; response due within 30 days
  108. physical and mental examination: can be ordered only against a party; only permitted for a condition in controversy; only for good cause shown
  109. request for admission: failure to respond within 30 days is an admission; responses must be signed by the attorney of record certifying that there is a reasonable basis and good faith for denying the request
  110. admissions have no preclusive effect, so only binding in the current lawsuit
  111. discovery does not equal admissibility
  112. deposition of an adverse party is admissible as an admission against interest
  113. deposition of a witness can be used to impeach (ie prior inconsistent statemnt)
  114. deposition of a witness who does NOT testify can be used if the witness is dead or beyond the court's subpoena power or otherwise unavailable; can also be used if witness is more than 100 miles from the place of trial
  115. enforcement sanctions: court can immediately impose sanctions in 3 instances of complete default:
    • 1) failure to attend one's own deposition
    • 2) failure to respond to interrogatories
    • 3) failure to respond to a request for documents or things
  116. enforcement sanctions: unless complete default, court should first issue an order to compel before imposing sanctions.
  117. pre-trial conference must be attended by the attorneys who will conduct the trial
  118. pre-trial conference: must file a pre-trial statement detailing claims and defenses, itemizaiton of damages, requests for stipulations and admissions, list of all witnesses and exhibits, etc.
  119. pre-trial conference: failure to comply usually means that the attorney pays the costs and the other side's attorney's fees
  120. termination without trial: devices [list]=
    • judgment on the pleadings (rarely used)
    • default judgment
    • voluntary dismissal (dismissal without prejudice)
    • involuntary dismissal (dismissal with prejudice)
    • summary judgment
  121. voluntary dismissal (dismissal without prejudice): P has a right to a voluntary dismissal once, at any time prior to the D serving an answer or a motion for summary judgment
  122. voluntary dismissal (dismissal without prejudice): D's motion to dismiss (e.g. for lack of jurisdiction or improper venue) does NOT cut off the right to voluntary dismissal
  123. voluntary dismissal (dismissal without prejudice): after D has filed an answer or motion for summary judgment, or P has already voluntarily dismissed once, P may seek a dismissal without prejudice on leave of court
  124. when imposed for lack of jurisdiction, improper venue, or failure to join a necessary party, involuntary dismissal is without prejudice. all other cases are dismissals with prejudice
  125. involuntary dismissal (dismissal with prejudice)= an adjudication on the mertis
  126. involuntary dismissal is with prejudice given full res judicata effect (i.e. preclusive)
  127. involuntary dismissal with prejudice: may be imposed for P's failure to prosecute or for failure to comply with any court order
  128. involuntary dismissal with prejudice: standard for appellate review= abuse of discretion
  129. summary judgment= there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law
  130. "no genuine dispute"= no reasonable juror could find the other way
  131. summary judgment: only tests the legal sufficiency of the P's claim
  132. summary judgment: can be used to test the facts AND the law
  133. partial summary judgment:: SJ that's granted only for certain parties, certain claims/defenses, or certain issues
  134. summary judgment may be sought by either side
  135. summary judgment MUST be supported or opposed by particular materials on the record, such as depositions, answers to interrogatrories, documents, affidavits, stipulations
  136. materials on the record must generally be sworn statements. Pleadings are generally not sworn statements; mere assertion or denial of a fact in a pleading does NOT create a genuine dispute
  137. sworn statement must be based on personal knowledge, not by merely saying person will call witnesses to testify in a certain way
  138. right to jury trial: equity issues such as injunction and specific performance do NOT require trial by jury
  139. right to jury trial: damages trigger the right to jury trial
  140. right to jury trial: if legal and equity issues overlap in the same case, try the legal issues first
  141. right to jury trial: demand for trial by jury must be made not later than 14 days after service of the answer or other pleading directed to the issue on which jury trial is sought
  142. right to jury trial: jury selection: each litigant gets 3 peremptory challenges; not for case; cannot be used for racial or gender purposes
  143. bench trial: judge is required to make both findings of fact and state conclusions of law
  144. jury trial: any objection to the instructions given by the trial judge must be made BEFORE the jury retires
  145. motion for judgment as a matter of law (i.e. directed verdict) is a way of moving for summary judgment AFTER the trial has begun
  146. JMOL= viewing the evidence in the light most favorable to the opposing party, the evidence cannot support a contrary verdict and the moving party is therefore entitled to judgment as a matter of law.
  147. JMOL: credibility of a witness: if the case turns on this issue, then there is a question as to a material fat and the motion for JMOL will be denied
  148. JMOL typically made by the D at the end of P's evidence and by either or both sides at the close of ALL evidence
  149. renewed motion for judgment as a matter of law (i.e. JNOV): JMOL may be renewed after the verdict, same standard as JMOL
  150. renewed JMOL: if you fail to ask for JMOL initially, cannot renw
  151. renewed JMOL: usually made together with a motion for a new trial
  152. appeals: motions that are no longer relevant if the moving party proceeds with trial once the motions are denied:
    • motion to dismiss for failure to state a claim
    • motion for judgment on the pleadings
    • motion for summary judgment
    • motion for judgment as a matter of law at the end of P's case
  153. any appeal is based on the full trial, not the earlier motion
  154. grounds for new trial include:
    • errors during trial that rendered the judgment unfair
    • newly discovered evidence
    • prejudicial misconduct by a lawyer, party, or juror,
    • excessive verdict and the winning party refused to accept a reduction (remittitur)
  155. new trial: court must specify the reason for granting a new trial. Reason for granting is purely a question of law
  156. most grounds for new trial are within the sound discretion of the trial court and reviewed on appeal only for abuse of discretion
  157. appeals: ordinarily lie from final judgments. final judgments resolve all the claims of all the parties on the merits
  158. appeals: if partial final judgment: the court may, by express designation, enter a final judgment on some claims. Such judgment is immediately appealable
  159. judgment becomes final when entered by the clerk on the court's docket
  160. notice of appeal must be filed in trial court within 30 days of entry of judgment. A timely post-judgment motion (e.g. renewed motion for JMOL or new trial motion) tolls the 30 day limit
  161. interlocutory orders immediately appealable as of right= any orders that change/affect property or injunctions
  162. discretionary interlocutory appeal: any interlocutory order is appealable on leave of courts and BOTH trial and appellate courts must agree to allow the appeal
  163. discretionary interlocutory appeal: trial court can issue a certificate for interlocutory appeal stating that it involves a controlling question of law and that the immediate appeal may materially advance termination of the litigaiton
  164. collateral order doctrine authorizes immediate appeal of orders separable from and collateral to the main suit and too important to deny immediate review; forum non conveniens almost always collateral order and immediately appealable
  165. mandamus provides for immediate appeallate review of an order that is an abuse of authority
  166. appeals: appellate courts have discretion to hear interlocutory appeals from orders certifying or refusing to certify a class action
  167. standards of review [list]:
    • matters of law
    • findings of fact
    • matters of discretion
  168. matters of law: appellate review is de novo (i.e. did the trial court get it right?)
  169. findings of fact: appellate review more limited: if jury verdict: must be affirmed if supported by substantial evidence; judge's findings of fact: must be affirmed unless clearly erroneous
  170. matters of discretion= abuse of discretion; any reasonable decision will be upheld
  171. full faith and credit: courts in the U.S., whether state or federal, must give full faith and credit to judgments rendered by courts of other states, provided that the rendering court had jurisdiction
  172. preclusion consists of two doctrines:
    • claim preclusion (res judicata)
    • issue preclusion (collateral estoppel)
  173. preclusion analysis: ask:
    • 1) is there claim preclusion? IF NOT
    • 2) is there issue preclusion?
  174. claim preclusion: RULE: a final judgment on the merits of a claim bars re-litigation of that claim by the same parties or those in privity with the parties.
  175. claim preclusion prevents re-litigation of every issue that was raised OR should have been raised in the first litigation
  176. claim preclusion: three requirements:
    • 1) must have been final judgment on the merits in the first suit;
    • 2) the second suit must be between the same parties or their successors in interest; and
    • 3) the second suit must involve the same claim or cause of action
  177. final judgment on the merits includes a default judgment, summary judgment, and dismissal with prejudice. it is NOT necessary that there had been a trial
  178. re-litigation b/w the same parties or their successors in interest: both parties must have been parties to the first lawsuit or successors in interest to the original parties. Same parties= must be same P and same D or their successors in interest
  179. successors in interest include assignor and assignee of a claim; a decent and the executor of the estate; and the executor of an estate and persons who claim under the will
  180. in a class action, each memebr is bound by the judgment, considered to have had their opportunity in court even if not a named representative
  181. claim preclusion: "same claim or cause of action" RULE=ALL legal theories to recover for harm arising out of a single transaction or occurrence are one claim
  182. unless state law provides otherwise, if both K and tort theories seek redress for the same harm, they are the SAME claim
  183. "same claim or cause of action": installment sales: creditor must sue for all that is due at the time of the suit. all accrued debt or obligation is one claim. creditor cannot sue for payments that are not "due and owing. FUTURE debts or obligations are ANOTHER claim
  184. issue preclusion: 3 requirements to preclude relitigation
    • 1) same issue of fact arises in two suits
    • 2) that issue must have actually and necessarily decided in the first suit AND
    • 3) party to be precluded must have been party to the first suit
  185. issue preclusion: "same issue of fact": it doesn't matter if the two suits involve entirely different claims so long as they have a factual issue in common
  186. issue preclusion: "actually and necessarily decided:" only applies to issues actually litigated; not to those that MIGHT have been litigated
  187. issue preclusion: default judgment results in full claim preclusion, but nothing is actually litigated so no issue preclusion
  188. "party to the first suit": party invoking preclusion need  not have been a party to the prior action, nor in any way involved in the action
  189. issue preclusion: "party to the first suit": rule at least applies to the defensive use of issue preclusion; whether a succession of Ps could invoke issue preclusion offensively is not clear
Card Set:
Fed Civ Pro
2015-01-27 01:47:43
feb bar
feb bar
Show Answers: