civil pro

Card Set Information

civil pro
2011-07-20 19:09:56
civ pro

barbri 2011
Show Answers:

  1. exclusions (fed ct)
    even if requirements of diversity are not, fed courts will not hear actions involving issuance of divorce, alimony or child custody decree or to probate an estate.
  2. Fed Question Jurisdiction
    • P's claim itself must arise under fed law.
    • Ask: Is the P enforcing a federal right?
    • Yes = FQ jurisdiction.
  3. supplemental jurisdiction
    • works only after case already in fed ct. Now we have additional claims in same case that does not meet diversity or FQ. we might get them in via supp jur ...
    • 1. The Test - claim must share a "common nucleus of operative fact" with the claim that invoked fed sub jur. this is always met by claims that arise from same transaction or occurrence.
    • 2. Limitation - But in diversity case, P cannot use supp jur to overcome lack of diversity.
    • * P can use supp jur to overcome a lack of diversity for a FQ claim.
    • * P can use supp jur to overcome lack of amount in controversy for a claim in diversity case.
  4. removal
    • D sued in state ct might be able to remove case to fed court.
    • D can remove if case would invoke diversit or FQ.
  5. complaint
    • filing starts and action. it requires:
    • a. statement of grounds for subject matter jurisdiction
    • b. short and plan statement of claim, showing entitled to relief
    • c. demand for relief sought
  6. D's response to complaint
    • by motion or by answer
    • within 21 days after service of process
    • Issues of form: (1) motion for more definite statement; (2) motion to strike
  7. Rule 12(b) defenses
    • (1) lack of subject matter jur; (2) lack of perosnal jur; (3) improper venue; (4) insufficient of process; (5) insufficient service of process; (6) failure to state claim; (7) failure to join indispensable party.
    • Waivable (must be in the first Rule 12 response or else D has waived them for good): 2, 3, 4, 5
  8. counterclaim
    • in fed ct, it is part of D's answer.
    • compulsory - arises from same transaction / occurance as P's claim. must be filed in pending case or it's waived.
    • permissive - not arise from same T/O as P's claim. may file with answer in this case or in separate case.
  9. crossclaim
    claim against co-party. it MUST arise from same T/O as the underlying action.
  10. proper parties
    • who may join P as co-parties?
    • a. arise from same T/O and
    • b. raise at least 1 common question
  11. necessary and indispensable parties
    • who's necessary?
    • 1. without A ct cannot accord complete relief among existing parties (worried about multiple suits)
    • 2. A's interests may be harmed if he is not jointed
    • 3. A claims an interest which subjects a party to multipe obligations
  12. Impleader
    • D wants to bring in someone new (third party defendant).
    • e.g, 3rd party D may owe idemnity or contribution to D on underlying claim. there is right to implead within 14 days after serving answer; after that, need ct permission
  13. Intervention
    • absentee wants to join pending suit. can come in as either P or D.
    • intervention of right - interest may be harmed if she not joined and her interest not adequately rep now.
    • permissive intervention - her claim or defense and the pending case have at least one common question. (discretionary with court; OK unless dely or prejudice)
  14. the class action
    • must demo all these requirements:
    • numerosity - too many for practical joinder
    • commonality - some questions of law or fact in common to class
    • typicality - rep's claims/ defenses typical of those of the class; and
    • representative is adequate
    • Next Step - must fit case within 1 of 3 types.
    • a. prejudice - class treatment necessary to avoid harm either to class members or to party opposing class.
    • b. Injunction or declaratory judgment sought because class was treated alike by other party
    • c. Damages - common question predominate over individual question; AND class action is the superior method to handle dispute
  15. summary judgment
    • moving party must show:
    • 1. there's no genuine dispute as to material issue of fact and
    • 2. that she is entitled to judgment as a matter of law.
    • * (gen) ct views the evidence in the light most favorable to the nonmoving party
  16. motion for judgment as a matter of law
    • effect = take case away from jury
    • * brought after other side has been heard at trial.
    • * standard = reasonable people could not disagree on the result
  17. renewed motion for judgment as a matter of law
    • same as JMOL but comes up after trial.
    • * when granted, ct enters judgment for party that lost the jury verdict.
    • * if you did not move for JMOL at trial, you cannot bring the RJMOL motion.
  18. Venue
    a civil action where jur is found solely on diversity of citizenship can be brought in a judicial district where (1) any D resides, if all Ds reside in the same state, (2) in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) any D is subject to personal jur
  19. personal jurisdiction (traditional)
    most states have statutes granting their courts personal jurisdiction: (1) where the D is present in the forum state and is personally served with process, (2) where the D is domiciled in the forum state, (3) where the D consents to jurisdiction, and (4) where the D has committed acts bringing her within the scope of the forum state's long arm statute.
  20. constitutional limitations on personal jurisdiction
    a party is subject to personal jur whenever it has sufficient contacts with the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. this requires overcoming 2 hurtles: minimum contacts and fairness.
  21. does the court have authority over the subject matter?
    • a. subject matter jur in Fed ct
    • i. state ct are generally courts of unlimited jur. the only limits are statutory.
    • ii. Fed ct only have jur over 2 types of claims
    • 1. fed questions
    • 2. diversity actions
    • a. comlete diversity
    • b. good faith allegation over $75
  22. is the ct the proper place to resolve the dispute?
    • i. Venue Defined = the proper district in which to bring an action
    • ii. Rule: Venue is proper in (a) any district where any defendant resides, if all defendants in same state; (b) where a substantial part of the claim arose, or if no district meets a. or b., then: 1. in diversity cases, any district where any defendant is subject to personal jurisdiction or
    • 2. in non-diversity cases, where any defendant may be found.
  23. What law governs this dispute
    Erie Doctrine
    • a. Federal courts are required to apply state substantive law to nonfederal causes of action
    • b. The Necessary and Proper Clause allows federal courts to apply federal procedural rules. In addition, federal courts will apply some state "procedural" rules when those rules have no bearing on the mechanics of the federal court system.
    • c. A federal court in CA sitting in diversity must apply CA’s conflict of laws rules in determining the applicable substantive law. CA resolves conflict of laws issues using the following approaches:
  24. can the decision be appealed?
    • A. The Final Judgment Rule: Requires a final judgment of the entire case before an appeal may be taken
    • a. Exceptions to the Final Judgment Rule i. Pretrial orders involving temporary remedies
    • ii. Final judgment on collateral matters
    • iii. Interlocutory orders of great importance that may be determinative of the ultimate decision
    • B. Appeals a. In Federal court must be made within 30 days from entry of judgment.
    • b. In CA, must be made within 60 days after mailing (by the court clerk) or the service (by a party) of the notice of entry of judgment, or 180 days after entry of judgment if no notice was mailed or served.
  25. relation back doctrine
    • Fed Rules Civ Proc R 15 (c) Relation Back of Amendments.
    • (1) An amendment to a pleading relates back to the date of the original pleading when:
    • (A) the law that provides the applicable statute of limitations allows relation back;
    • (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading; or
    • (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
    • (i) received such notice of the action that it will not be prejudiced in defending on the merits; and
    • (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
  26. right to jury trial
    • 7th amend preserves the right to a jury trial in fed court in all suits of common law.
    • where damages are claimed as part of an action seeking an injunction, a jury trial cannot be denied on the damages issue.
  27. Legal and equitable claims joined in single action
    the legal claim should be tried 1st before the equitable calims are determined by the judge
  28. summary judgment
    must be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
  29. res judicata
    final judgment on the merits bars subsequent causes of action in a later lawsuit. the application of res judicata is limited to parties.
  30. collateral estoppel
    • a judgment for P or D is conclusive in a subsequent action on a different cause of action between them or their privies, as to issues actually litigated and essential to the judgment in the first action.
    • Under traditional "mutuality" rule, judgment could not be used against a person who was not a party in first action (due process violation).
    • CA - mutuality principle erroded. 4 part test to determine if a nonparty may rely on a prior judgment.
    • 1. issue decided in 1st case must be identical to the issue presented in the subsequent case.
    • 2. there must have been a final judgment on the merits.
    • 3. party against whom the judgment is to be used must have had a fair oppertunity to be heard on the critical issue.
    • 4. the posture of the case must not be such that it would be unfair or ineqitable to a party to apply colateral estoppel.
  31. CA primary rights doctrine
    causes of action may be split into saparate lawsuits as long as that cause of action does not give rise to an invasion of a single primary right.