MBE.Civ.PRO

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Author:
Yaima
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303315
Filename:
MBE.Civ.PRO
Updated:
2015-06-27 15:48:52
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CIV PRO
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MBE.Civ.
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  1. Aggregation for Diversity
    • Diversity JX is available when:
    • ☛ complete diversity of citizenship, +
    • ☛ aic = over 75K.
    • ---P may aggregate all his claims against a single D.

    ---P may aggregate different claims against different D's only if they're jointly and severally liable.
  2. Removal when D is sued in Home State Court
    Whether a D is a citizen of a home state is relevant for purposes of removal only when D is sued in his home state and tries to remove to federal court. 

    there's no concern of home-state bias in state court when D is a citizen of that state. 
  3. Action Pending as Defense
    Unlike FL law, the Fed. Rules don't require D to raise the defense that another action is pending b/w the parties in the first responsive pleading. 

    ☛ erie--fed. court must usually apply state law in diversity action, BUT not if rule is procedural and fed.rules have a rule on point + rule doesn't modify/enlarge substantive rights.
  4. TRO (Temporary Restraining Order)
    ☛ may be granted when necessary to prevent irreparable injury that will result before a hearing can be held. 

    ☛ Notice is generally required. 

    • ☛ Ex Parte ONLY if:
    • i) specific facts in affidavit/verified complaint showing immediate irreperable injury before opposing party can be heard, +
    • ii) written certification of efforts to give notice to opponent & why it shouldn't be required, +
    • iii) bond/security to cover cost to opponent in case it's wrong.
  5. Default
    ☛ party loses ability to contest liability (damages must still be determined & can still be heard on this matter);

    ☛ Even if Default entered, if party files response before judgment = Court must determine if good cause existed for failure to answer. 

    • ☛ any appearance by party = party must be noticed of request for default judgment;
    • ----first class mail + 7 days before hearing.
    • ----only judge can enter default judgment at this point.
  6. Federal Question
    • ☛ Claim Must Arise under federal law.
    • ----0-not defense;
  7. Supplemental JX over Co-P's claims
    • If SMJ over one claim ⇀ court has discretion to exercise SJ over related claims (same nucleus of operative fact), + such that a P could be expected to try them together. 

    xmpl--2 ps fired for colluding + only 1 satisfies aic. (but complete diversity exists)
  8. SJ & Cross-Claims
    • ☛ related claims from same nucleus of operative fact,
    • ☛ claims by D against another D is okay even if aic is not met by the cross-claim
  9. Venue
    i) any district where D resides (if all Ds reside in same district--diff from FL);

    ii) where substantial actions/omission of claim; 

    iii) if none of the above apply = any district where D is found + subject to pj for this claim.
  10. Service of Process
    • ☛ pursuant to rules of state where Court sits is ok. 
    • ☛ pursuant to rules of state where service occurs is ok. 

    --feds don't authorize service by certified mail/service on corp with someone other than registered agent.
  11. Timeliness of Answer
    ☛ within 21 days of formal service; OR

    ☛ 60 days from date of P's mailing of service waiver request, (if D waives formal process)
  12. Relation Back & Amending to Add new Party
    ☛ asserts claim arising from same T/O as original; 

    ☛ D received notice of action (within 120 days after service of process), +

    ☛ D knew or should have known but for a mistake, he would've been named.
  13. Permissive Joinder
    • ☛ Ds and/or Ps, 
    • ☛ some claim involving same T/O or series of t/o,
    • ☛ common Q of fact/law to all parties.
  14. Third Party Claim (Implreader)
    • ☛ only if D (third party plaintiff)
    • ☛ claims third party (to be brought in as third party D)
    • ☛ owes D contribution/Indemnity for the original plaintiff's claim. (not because D believes the 3pD is the correctly liable party).
  15. Discovery
    • ☛ Drafts of trial experts are work product. 
    • ☛ Communications b/w atty & expert = work product.
    • ----0--Except: communications relating to compensation, facts, data provided by atty to expert.
  16. Sanctions for Failure to Provide Discovery
    ☛Motion to Compel Discovery cannot be filed until: moving party makes good faith effort to confer w/opponent to obtain discovery w/out court involvement. (he must certify this to the court)

    ☛ certification of attempt to confer + moving to compel may be recovered by moving party. including atty fees.
  17. Deposition
    ☛ failure to object to improper questions at depos = waives the objection at trial. 

    • ☛ may be used against any party (present or with notice) for: 
    • [] impeach testimony of deponent;
    • [] any purpose if court finds deponent (dead); (over 100 miles away--unless abscense is procured by party offering the depo)
    • [] sick, dead, infirm; 
    • [] any purpose if deponent is adversary.
  18. Voluntary Dismissal
    ☛ as of right, only if D hasn't answered or filed motion for summary judgment. 

    ☛ if counter claim pending = can't dismiss if D objects, unless counterclaim remains pending.
  19. Appeal
    • Generally, only final orders may be appealed, EXCEPT:
    • [] Injunction order (granting, modifying, refusing...etc).
  20. Claim Preclusion (Res Judicata)
    • ☑ Valid, final judgment on the merits(earlier), +
    • ☑ same claimant against same defendant, +
    • ☑  same claim (cause of action, includes all claims arising from same T/O).
  21. Multiparty Multiforum Trial Jurisdiction Act
    gives Federal Courts jx:
    • (1) Applies to accidents in which at least 75 people have died from a single event, +
    • (2) and at least one of the following is true:
    • --(a) 1 Defendant resides in a state different from where the accident happened, or
    • --(b) any 2 defendants reside in different states, or
    • --(c) substantial part of the accident happened in different states.

    • * any one with a claim can intervene as plaintiff.
    • * nationwide service of process is ok.
  22. The following MUST be filed within 28 days of Entry of Judgment:
    • Renewed Motions for Judgment as a matter of law;
    • Motion to Amend Judgment;
    • Motion for New Trial;
    • Motions for Relief from Judgment.

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