Fed civil pro

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Fed civil pro
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2011-06-28 16:48:46
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Fed civil pro
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  1. Subject matter jurisdiction: General
    *You must first determine whether you're in fed or state court

    • *2 ways of framing your answer:
    • 1. Remeber "for each and every" COA and def
    • 2. cite the important stautes:
    • a. 1331 (fed courts have original jurisdiction over asll civil actions "arising under the const, laws and treaties of US)

    b. 1332 (amount of controversy >$75k, exclusive of the costs and expenses associated w/ trial)

    c. 1367 (claims that don't provide SMJ may be combined w/ appropriate claims through the courts supplemental jurisdiction, provided they arise out of the same case or controversy)
  2. Original jurisdiction: Fed question jurisdiction (1331)
    The one thing needed is a fed COA (look @ P's claims)

    *As long as the count claims to be filed under a fed statute, there will be federal question jurisdiction over the count under 1331. (pay close attention to whether the claim arose under fed or state law)
  3. Original jurisdiction: Diversity jurisdiction (1332)
    • 2 reqs:
    • 1. amount of controversy >$75k

    2. complete diversity of litigants btw named P's and named D's (create 2 lists w/ parties names and states- no states can appear on both sides of list)

    • *Corporations are citizens of both:
    • 1. state of corp (usually DE)

    2. PPB (where there HQ is located- nerve center test)

    • *Domicile requires the person to have both:
    • 1. presence
    • 2. intent to remain

    - domicile is the last a person hold both of those (you keep the old one until you establish new one)
  4. Original jurisdiction: Supplemental SMJ (1367)
    • Supplemental jurisdiction has 1 threshold question and 3 additional factors:
    • 1. threshold question: Does the crt already have original jurisdiction over some matter that would allow fed crt to take on this new matter? (you can't use this unless the crt already has jur in 1331 or 1332)

    2. Supp juri is only going to be an acceptable basis for the crt's smj over that count if the COA arises out of the same facts or transactions (nexus)

    3. The crt will not have supp jur if the principal P (who filed diversity action is trying to use it.(No diversity P's can use 1367 for the additional COA)

    *Crt has discretion to decline claim if it falls under 1367, crt may still decline because its not required to hear supp claims

    • EXAM tip: Key words in each step"
    • 1. supplement
    • 2. case/controversy
    • 3. no diversity P's
    • 4. discretion to decline claims
  5. *****Original jurisdiction: Removal and remand of state court actions- Removal (from state to fed)
    Timing= 30 days

    *In an action with multiple D's, the court will allow removal only if all D's agree (if not case stays in state)

    *An action is removable if P could have filed in fed crt (1331, 1332, 1367 analysis)

    • EXCEPTION: If the basis would divide jur, D cannot be an in-state D. (so in-state Ds can't remover under 1332)
    • *An action is only removable "straight up", meaning in the same state. (so can only do from Pa state crt to Pa fed crt)
  6. Personal jurisdition
    EXAM tip: Remember to conduct a separate PJ analysis for each and every D (be careful not to combine them)
  7. Personal jurisdition: Statutes that allow for nationwide service of process
    *Fed interpleader act, Clayton act, SE Act of 1934

    The essay may mention a statute that provides nationwide service. If statute is on point, then analysis establish PJ so nice and short response (this doesnt include long-arm statutes)
  8. Personal jurisdition: Rules (territorial jurisdiction)
    "100 mile bulge rule": Fed courts are authorized to exercise PJ over designated persons that may be served w/in 100 miles of the fed crt house in any direction

    *if rule 14 interpleader or rule 19 necess 3rd parties, then the crt has auto juris if D falls w/in 100 miles of crt


    • Foreign D's, reqs:
    • 1. foreign
    • 2. fed question
    • 3. no capacity for PJ in any state, and
    • 4. minimum contacts w/ aggregated USA

    *fed court will be seen to have territorial jurisdiction over the state w/in which that fed crt is located
  9. PJ: Service
    PJ can be established w/ in-hand service in the forum state

    EXCEPTION: force, fraud (lured into state under false pretenses) and privilege (appearing in state under state subpoena to serve as W)
  10. PJ: Waiver
    If D fails to raise a challenge of PJ in D's first filing, then deemed waiver of challenge (no matter how weak D's PJ to forum state)

    *where D appears b4 the crt to contest juris of the crt, appearance alone doesn't waive the D's right to object to PJ
  11. PJ: Consent
    • Three ways a person can consent to PJ w/in a state:
    • 1. Express consent (by k etc...)

    • 2. Implied- by:
    • a. operates a motor vehicle in the state
    • b. conducts business w/in the state
    • c. is present in the state when the conduct that caused the action or dispute to arise took place

    3. Waiver

    • *Forum selection clause submits the dispute to the crts of the forum state
    • a. exclusive forum selection clause enforceable and restricts jurisdiction (w/ valid consent)
  12. General Jurisdiction
    A D is subject to PJ if the crt has general juris (think GJ whenever facts/underlying transaction has nothing to do w/ the forum state)

    • *2 things req to establish GJ:
    • 1. Systematic and continuous contacts- D is regularly engaged in business or is so frequently in a state that the # and quality of the D's contacts w/ the state would be described as systematic and continuous (physical presence isn't req)(mag subscriptions, catalogues etc..)

    examples
    : real property, state of incorp, doing lots of business in the state (time, frequency)

    • Fair play and Substantial Justice( D's complaining):
    • 1. look for any facts that make it seem unfair, unjust, inconvenient or inappropriate

    *Generally only applicable when suing corps, not individuals
  13. Specific Jurisdiction
    A D is subject to PJ even when D's connections to forum state is less than systematic and continuous

    • *EXAM TIP: Arby's, Long John Silver's, McDonald's, Subway:
    • 1. "Arises out of": transaction must arise out of forum state (e.g injury/breach, manufacture, purchase)

    • 2. Long Arm statute: Fed crt apply the LAS of the state in which they sit (so Pa fed crt apply Pa LAS)
    • *a state statute authorizing the exercise of jurisdiction over out-of-state D)
    • *Types of contacts permitted by LAS include: transact business w/ state, ks anywere w/in the state to supply goods/services, having property in the state)

    • 3. Minimum contacts:
    • 1. D must have min contacts w/ forum state
    • 2. purposeful availment (may be sufficient to show min contacts) If D purposefully availed itself to benefits of the forum state

    *conscious and deliberate, gian benefit, risk to forum states

    *website: "interactive and commercial" (contrast w/ passive websites [cannot post])

    *Stream of commerce: D manu product which moves down the line from wholesaler to retailer (alone might be insufficient, SOC + advertisements/specific design for such state may =PA)

    EXAM TIP: Acknowledge the strongest counter-fact but then emphasize the facts that support the view that your'e suggesting

    4. Intentional torts- D will be subject to jur when an IT has an effect that was targeted @ forum state

    • *Fair play and substantial justice: crt must find that exercising PJ over D would not offend traditional notions of fp and j (old, feable, distance, cost to defend/travel)
  14. Venue
    • Venue is proper wherever you can satisfy one of 2 test:
    • 1. List the residence of all Ds the 2 parts:
    • a. find a D that lives in this forum district
    • b. all Ds must live in the state

    2. acts- needs a substantial # of the events/omissions giving rise to the claim to occur in the district

    *3rd basis but seldomly used: used if there's no other district in the US where action can be brought, then venue is propert is PJ is proper

    *Determing residence in the context of venue: a corp is deemed to reside in any district for which they would be subject to PJ (aliens= any district)

    *waiver= failure to raise in 1st filing is deemed waiver to challenge
  15. Venue: transfer of venue
    May be transfered if for convienence of parties and interest of justice, then may transfer to another Fed district crt where action could have brought (transfer analysis of SMJ, PL, venue)

    • *burden is on party seeking transfer, and considers:
    • 1. location of Ws
    • 2. location of evidence
    • 3. matters of judicial admin (efficiency)

    *Form non conveniens, if forum w/ proper venue is a foreign forum (eg Mexico) not a fed district crt

    • *forum non conveniens, dismissal is appropriate if:
    • 1. convenience of parties/ admin of justice
    • 2. alternativve forum must be adequate
  16. Service & Return: commencement of action
    w/ filing of complaint and summons

    *complaint must be served w/in 120 days
  17. Service & Return: Service of process- forms of summons
    • A summons must:
    • 1. be signed by clerk
    • 2. identify the crt and parties
    • 3. be directed to the D
    • 4. state the name & address of either P or P's attorney
    • 5. notify the D of:
    • a. the time period w/in which it must appear or file an answer
    • b. the potential to default judgment if the D fails to appear w/in the time specified, and
    • 6. contain the seal of the crt

    *a challenge to form of the summons waived must be raised on 1st filing
  18. ****Service & Return: Service of process- service
    1. actual notice- facts that suggest that D received the complaint/summons, or

    2. Formal notice: facts suggest that P complied w/ the rules of notice (even if D has the service in his hands, don't focus on actual notice here)
  19. Service & Return: Service of process- waiver of service
    New rule imposes duty on D to waive service

    *incentive to waive- D will get additional time to answer (but failure to waive, D gets stuck w/ cost of compiling w/ service (so if waived, then no summons, just complaint served)

    *actual notice is not a substitue for formal notice
  20. Service & Return: Service of process- pleadings & motions: General rules of notice
    1. a pleading that states a claim for relief must contain a short and plain statement

    • 2. Rule 12(b)(6) dismissal: dismissal will be w/ prejudice unless the crt states otherwise. crt will dismiss complaint in the following circumstances:
    • a. no cognizable claim (no discussion of legal recovery/theories
    • b. fact pattern that is insufficient to support claim
    • c. factual allegation on face of complaint negates one of the elements of COA
    • failure to state a claim may be raised @ any time

    *allegations of fraud or mistake must be plead w/ greater particularity


    *Pleadings and motions shall be liberally construed (defects shall be ignored if no substantial right of the parties are prejudiced)
  21. Service & Return: Service of process- pleadings & motions: responsive pleadings
    • *Answer is due w/in 21
    • - admitting or denying, in part, the allegations of P's complaint
    • -affirmatie defenses: needs to be included in answer (omission means waiver)
  22. Service & Return: Service of process- pleadings & motions: counterclaims & crossclaims
    1. compulsory counterclaims: must be asserted if arise out of same transaction or occurence

    2. permissive counterclaims: if D has a claim against P, D may assert it even if unrelated

    *Crossclaims
    : doesn't cross an existing V, it introduces 1 ( 1 D against another co-D)
  23. Service & Return: Service of process- pleadings & motions: amended & supplemental pleadings
    • Every motion to amend has to be approved by the court unless:
    • 1. stipulation by adverse party
    • 2. "freebie"- in rule to amend once, w/out crt approval if:
    • a. if response is due, before a response/answer is filed
    • b. no response is due, then may amend w/in 21 days
  24. Service & Return: Service of process- pleadings & motions: amended & supplemental pleadings -with leave of crt
    *If delay and prejudice

    delay= why did party wait so long?

    prejudice= material could have been included in earlier material (effect of grant/denial)
  25. Affirmative defenses: types
    • accord and satisfaction
    • arbitration and award
    • assumption of risk
    • contributory negligence
    • discharge in bankruptcy
    • duress
    • estoppel
    • failure of consideration
    • fraud
    • illegality
    • injury by fellow servant
    • laches
    • licenses
    • payment
    • release
    • res judicata
    • statute of frauds
    • statute of limitations
    • waiver
  26. the following can be raised in an answer or motion to dismiss
    • lack of smj
    • lack of pj
    • improper venue
    • insufficient process
    • insufficient service of process
    • failure to state claim upon which relief can be granted
    • failure to join party
  27. Service & Return: Service of process- pleadings & motions: amended & supplemental pleadings- relation back doctrine
    - will treat the new claim as though it had been filed w/ the original claim (allows amendments and will be deemed in earlier filing ( and therefore w/in sol)

    • 3 methods to achieve:
    • 1. state law claims- if addint a state law claim and state procedure would allow relation back

    2. new claims, same parties- if adding a COA, not a new party, the RB provided the new COA arises out of the same conduct, transaction or occurence

    • 3. new claims, new parties- if adding a claim and a new party, RB will be granted provided:
    • a. must arise out of same T or O

    b. new party (D) must have been aware the suit was filed and became aware w/in 120 days of such filing

    c. P must have been mistaken as to D's identity (P's lack of knowledge, not merely a mistae of knowledge)
  28. Service & Return: Service of process- pleadings & motions: Representations to court and sanctions
    • *Rule 11 requires atty to sign every motion/pleading (not client)
    • -atty signature signifies filing for proper purpose, legal and factual homework conducted (consistent w/ current law or good faith extension)

    *a party may not file a motion for sanctions w/out first allowing D to cure w/in 21 days. (so serve motion on OP, but don't file until after 21 days)

    - this "safe harbor" provision doesn't limit the court's ability to impose sanctions sua sponte (on their own accord)

    *A court avoids monetary santions and awards of atty fees unless absolutely necessary
  29. Joinder: Joinder of claims
    Once sued, related and unrelated claims can be joined

    *If the joinder of claims would lead to jury confusion or some other prejudice, the crt may decide to sever later
  30. Joinder: Joinder of parties (compulsory)
    Rule 19- comupulsory joinder (necessary and indispensable parties)

    *
    Rule 19 will apply in cases if absentee D would prejudice an existing party (substantial imparimen of someones rights [e.g asking for equitable releif])

    • Not a rule 19 party:
    • -neg claim against only 1 of 2 joint tortfeasors
    • -if P sues only 1 of 2 D's who ower her money
    • *Rules don't require joinder of parties where it would be efficient/convenient/lead to uniform results

    • *If a person who is required to be joined cannot be joined, the crt must determine whether, in equity of good conscience, the action should proceed among the existing parties or dismissed (crt will dismiss action if the suit could be filed in state crt or some other crt)
    • - i.e if absentee couldn't be joined in fed crt bc it would destroy diversity, the action could be brought in state crt

    *If there's no other place that the action could be brought, the crt will proceed (in order to avoid the prejudice, the crt will (re)shape relief (i.e damages instead of equitable relief)
  31. Joinder: permissive joinder
    • Multiple persons may be joined together as Ps or Ds in one action if:
    • 1. claims arise out of T & O
    • 2. must be common question of law and fact
  32. Interpleader
    Used by someone holding a stake in which multiple parties may demand (stakeholder then sues the potential claimaints)

    *interpleader is only applicable where multiple claims demand the same thing or obligation (usually a piece of property, prize or most commonly the proceeds of an insurance policy)

    *also permitted by a D to the suit, when D is exposed to multiple liability

    *venue is established where any one of the adverse claimaints resides

    • *Vocab:
    • 1. stake= unique items
    • 2. stake-holder= initiates action; the holder of the unique items
    • 3. adverse claimants= D of the suit, stake holder can be claimant too
  33. 3rd party practice or impleaders
    After a D to an action has served his answer, that D may proceed against non-party who may be liable for all or part of P's claim against the D (must file 3rd party complaint where the original action pending)

    *Any party being sued hopes that there's some basis on which they can get idemification or contribution

    *Need separate COA by D against TP (that can stand on its own), and

    • *Reqs:
    • 1. a D may file a TP complaint any time w/in 10 days of filing his answer
    • 2. After that time, 3rd party complaints may only be filed w/ leave of crt
  34. Intervention by right
    Outsiders to existing litigation want to join as a pary (either P or D)

    • 1. intervention by right: upon finding by the crt that a non-party's application was timely, the non-party shall be allowed to interene in an action if:
    • a. staute
    • b. TP must demonstrate interest that would be impaired in matter and that interest is not already adequately represented in litigation (interest= usually property)
    • - inadequate= the current parties would not make the same arguments I would make (crts have broad discretion for intervention
  35. Intervention by permission
    • If non-party may not intervene as a matter of right, crt may permit if:
    • 1. statute allows conditional right

    2. non-party has a claim or defense that shares a common question of law or fact w/ the primary action
  36. Class actions: prerequistes to a class action
    1. numerosity (sufficient # of parties so joinder is impractical)

    2. commonality (common issue)

    3. typicality (defenses or claims of rep party typical to those raised by each member of the class)

    4. Representativeness/Adequacy (looks to rep in relation to other class members. need resources, access to effective rep class)

    *The rep party can fairly and adequately protect and represent the interest of each member of the class

    *Need crt approval for settlements bc binds entire group

    EXAM tip: n
    umbers, colors, tying shoes, read
  37. Special rules relating to class actions: PJ
    crt not req to have PJ over absent members of the P class, as long as they receive adequate notice of pendency of the action and are afforded the opp to opt out of the class

    *It's unclear, however, whether the crt must have PJ over absent members of P classes where ther is no ontice and/or opp to opt out of the class

    *In every case, the crt must have PJ over each of the D's named in the acton
  38. Special rules relating to class actions: SMJ
    • *Class Action Fairness Act (CAFA), expands fed SMJ to include classes where:
    • 1. the class has >100 members

    2. at least 1 member of the class is diverse from at least 1 D

    3. the total amount in controversy exceeds $5 milli

    • EXCEPTION: CAFA broad grant of SMJ doesn't apply to:
    • 1. local controversies
    • 2. certain civil rights and other categories of cases
  39. Class action: Settlement
    *CA may not be dismissed or compromised w/out crt approval

    *In evaluating settlement proposals, the crt must consider whether it's fair, reasonable and in the best interest of the individuals affected by it
  40. Discovery: Mandatory disclosures
    scope= relevant, non-priv and non-cumulative

    • * w/ limited exceptions, parties are required to disclose some info as a matter of course upon the commencement of litigation. The following info must be disclosed:
    • 1. name, address, and phone # of individuals likely to have discoverable info, along w/ the subject of that info

    2. tangible things party has in possession that may use to support claims or defenses

    3. insurance agreements under which an insurance company may be liable to satisfy all or part of a possible judgment
  41. Discovery: Mandatory disclosures- timing
    Mandatory disclosures must be made w/in 2 weeks of the initial discovery conference (based on info reasonably available)
  42. Discovery: Supplementation
    party must supplement a discovery response w/ any info that would have been subject to mandatory disclosure req (failure to comply may lead to the exclusion of that evidence @ trial)
  43. Dismissals
    1. involuntary - 12(b)(6)

    • 2. voluntary- P may move to voluntary dismiss w/out prejudice:
    • a. if D has not responded
    • b. D stipulates
    • c. crt approval
  44. Summary judgment
    - P must have evidence for each element; if not grant summary judgment

    1. the evidence will be viewed in light most favorable to P

    2. P may not rely on evidence that will not be admissible @ trial

    3. P may not rely on evidence that no rational fact finder would beleve or wold find sufficient to establish the element (crt isn't not supposed to weigh evidence)
  45. Judgment as a matter of law (directed verdict)
    The analysis is identical to summary judgment. Any evidence?

    *Occurs during trial, after P rest
  46. Renewed Judgment not w/standing the verdict (JNOV)
    same analysis as summary judgement and directed verdict.

    *After the jury has rendered

    To preserve the right to file a JNOV, D must raise directed verdict during trial
  47. Motion for new trial
    Alternative relief to a JNOV for the party that loses

    • Appropriate when:
    • 1. reversible error
    • 2. erro w/ burden of proof
    • 3. jury misconduct
    • verdict is against the weight of evidence
  48. Conditional new trial
    remittitur- threaten new trial unless damages/ recovery are reduced

    additur- unconstn in fed crt-->threaten new trial unless damages /recovery are increased
  49. Preliminary relief
    • Invokes the broad discretion of crts, guided by 4 basic inquiries:
    • 1. bc somethings can't be undone
    • 2. Is P likely to succeed in the merits
    • 3. Balance hardship (how hard to comply w/ relief)
    • 4. Public policy
  50. Final Relief
    *crts grant damages or equitable relief (damages=default)

    *you can only get equitable relief when exceptional circumstances (when damages are inadequate)
  51. *******Claim preclusion
    • 1. prevents relitigation of actions:
    • a. needs final judgement on the merits

    b. claim in suit #2 is the same claim litigated in suit #1

    c. same parties in suit #1 as now in suit #2

    *judgment, claims, parties

    *claim req--> look @ T & O
  52. ********Issue Preclusion (collateral estoppel)
    • 1. prevents re-litigation of issues that:
    • a. needs final judgment on the merits

    b. issue was fully and fairly litigated (how much time spent) , and

    c. issue was essential to the decision in case #1

    *the doctrince cannot be used to preclude someone who was not a litigant from the prior suit (would be a DP vio)
  53. Non-mutual offensive collateral estoppel
    If person could have been in earlier suity but was not

    • *crt are reluctant to permit offensive use of issue preclusion and will base their determination on the following:
    • 1. limited discovery
    • 2. different stakes
  54. Use of crim convictions in civil proceedings
    using crim judgments in subsequent proceeding--> look for overlapping elements

    *an acquital will not have preclusive effect
  55. Concurrent jurisdiction: The Erie Doctrine
    Constitutional mandate that applies to fed crt where the crts are exercising either diversity or supplemental jurisdiciton

    *Trigger
    = state law claim in fed crt (look for someone complaining about state law req application in fed crt

    • *A fed crt must apply, state substantive law, not procedure law. Analysis:
    • 1.Does state law conflict w/ fed statute/frcp- then ignore because of supremacy clause

    2. No conflict- then what procedure? modes, manner, mechanical (not policy)

    3. label substantive and procedure- if procedure, apply fed procedure. If substantive, apply state law

    EXAM TIP: Do not use the words "substantive" or "procedural" until your next to last sentence. The key is building up to why a law is substantive or procedural

    • *2 common Erie Doctrine mistakes:
    • 1. conducting an Erie analysis when it's unnecessary (Fed question/fed statute that trumps)

    2. thinking that these categories of substance and procedure are certain.


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