Civil Procedure (Federal)

Front 1

What are the 6 BIG ideas behind Civil Procedure?

Back 1

(1) Right court?
-PJDX
-SMJDX
-Venue

(2) Learning about the case
-Service of process
-Pleadings
-Discovery

(3) Complex cases
-Party Joinder

(4) Adjudication
-Pretrial Conference
-Trial

(5) Appellate Review

(6) Effects of judgment
-Claim and issue preclusion

Front 2

Does a person ALWAYS have a domicile?

Back 2

YES.
But ONLY one.

-It is usually the same as where they "reside"

Front 3

When is diversity of citizenship determined?

Back 3

At the time the case is FILED.

Front 4

How many PPB does a corporation have?

Back 4

ONE and ONLY one.

NOTE:
A corporation may "reside" in MANY locations

Front 5

How is the amount in controversy determined?

Back 5

It is based on π good faith belief assertion UNLESS it is legally certain that she cannot recover more than $75,000 (e.g., statutory ceiling).

Front 6

What happens if π does not recover more than $75,000?

Back 6

JDX is not disturbed.

HOWEVER, π may have to reimburse ∆'s litigation costs (not attorney's fees).

Front 7

When can the amount in controversy be satisfied by AGGREGATING claims?

Back 7

(1) 1 π v. 1 ∆
-Always aggregate

(2) 2 π v. 1 ∆
-Do NOT aggregate

(3) 1 π v. 2 ∆
-Aggregate IF joint tortfeasors

Front 8

How should supplemental jdx be used?

Back 8

(1) Establish that a claim has either federal question OR diversity jdx (anchor claim)

(2) See if additional claims have either FQ or Diversity jdx

(3) If NOT, additional claims that do not satisfy FQ or Diversity jdx may be heard through the courts supplemental jdx IF

(4) The claims share a "common nucleus of operative facts"

(5) EXCEPTION: π may NEVER use supplemental jdx to circumvent diversity jdx requirements in a diversity case (i.e., (1) is a diversity anchor).

Front 9

A court does NOT have to hear cases that are in their court under supplemental jdx. What discretionary factors will the court consider?

Back 9

(1) If the FQ jdx is dismissed early in the proceedings
(2) If the state claim is complex
(3) If state law predominates

Front 10

How does REMOVAL work?

Back 10

(1) A ∆ may remove a case from STATE to FEDERAL court (only)

(2) ALL ∆'s must agree to remove

(3) If a diversity jdx claim, ∆ may NOT be from the state to which he attempts to remove (in-state ∆ rule)

(4) The district of the federal court must embrace the state court from which the claim was removed

(5) Removal must occur no later that 30 days after service of the 1st removable documents but in no case more than 1 year after the case was filed in state court.

(6) The federal court will REMAND the case if removal was improper.

Front 11

What does the Erie Doctrine stand for?

Back 11

(1) In a diversity case, federal courts must apply SUBSTANTIVE state law.

Front 12

What is "substantive state law" for purposes of the Erie Doctrine?

Back 12

GUARANTEED STATE LAW:
(1) Elements of a claim or defense
(2) Statute of limitations
(3) Rules for tolling the SOL
(4) Conflict or choice of law rules

GUARANTEED FEDERAL LAW:
(1) Federal law that conflicts with state law
-supremacy clause


IF OTHER, USE TESTS:
(1) Outcome Determinative
-would fed law change the winner
(2) Balance of Interest
-state v. federal interest
(3) Avoid Forum Shopping
-πs flocking to avoid state law

Front 13

What is "venue?"

Back 13

If you have established that federal courts have JDX over the case, venue tells us exactly which district the case should be filed in.

Front 14

What is the difference between a local and transitory action for purposes of Venue?

Back 14

(1) Local Action:
-Deals with land
-Venue = where ever that land is

(2) Transitory Action:
-All other cases
-Venue = (1) where all ∆'s reside; or
(2) a substantial part of the claim arose

Front 15

Where do ∆'s "reside" for purposes of venue?

Back 15

(1) Humans:
Usually where they are citizens

(2) Corporations:
Any district where they are subject to PJDX

Front 16

When may you transfer venue?

Back 16

(1) For convenience for the parties and witnesses

AND

(2) Transfer is in the interest of justice

AND

(3) Court' agrees (discretion) after considering:
-Public interest
-Parties interest

Front 17

What is "forum non conveniens?"

Back 17

If there is a FAR more appropriate venue, a court may dismiss (usually without prejudice) (or stay) to allow π to file in that court.

This occurs if transfer is impossible because the proper venue is in a different judicial system (foreign).

Front 18

What is required for "Service of Process?"

Back 18

(1) A summons
-Where and when to defend

(2) A complaint
-What to defend

(3) Timing
-Within 120 days of filing the action

Front 19

Upon whom must processed be served?

Back 19

Either: (1) The ∆; or to someone of suitable age discretion who RESIDES at the ∆'s usual ABODE.

NOTE:
Suitable age does not mean over 18.

Front 20

May state law govern service of process in federal court?

Back 20

YES.

In an action in federal court we can use methods of service permitted by state law of the state where the federal court sits OR where service is effective.

Front 21

How can service of process be waived?

Back 21

Process is mailed to ∆ by first class mail, postage prepaid.

IF ∆ returns waiver within 30 days, he will have waived formal service ONLY (e.g., not pjdx)

IF ∆ does NOT return waiver, ∆ MUST be personally served BUT will have to pay the cost of service.

Front 22

May service of process be given in another state?

Back 22

YES

IF the state law allows (e.g., long-arm statute).

Front 23

What types of pleading are required in federal jdx?

Back 23

NOTICE pleadings (basic).

VERY BASIC:

COMPLAINT
(1) Establish SMJDX
(2) Statement of claim showing entitlement to relief
(3) Demand for judgment

Front 24

What are "special matters" and how do they affect the complexity of the pleadings?

Back 24

Special matters must be pleaded with particularity or specificity

Examples: Fraud, mistake, and special damages.

Front 25

How may a ∆ responds to a complaint?

Back 25

(1) Motions (Rule 12)

AND/OR

(2) Answer

Front 26

What are the Rule 12 Motions?

Back 26

Issues of Form:
-12(e) Motion for more definite statement
-12(f) Motion to strike

Defenses 12(b):
-(1) Lack of SMJDX
-(2) Lack of PJDX
-(3) Improper venue
-(4) Insufficiency of process
-(5) Insufficiency of service of process
-(6) Failure to state a claim
-(7) Failure to join an indispensable party

Front 27

What 12(b) motions are subject to being waived and when?

Back 27

Waived if not pled in the FIRST response (either motion or answer):
-(2) Lack of PJDX
-(3) Improper venue
-(4) Insufficiency of process
-(5) Insufficiency of service of process


May be raised at anytime THROUGH TRIAL:
-(6) Failure to state a claim
-(7) Failure to join an indispensable party


NEVER waived, may be raised AFTER TRIAL:
-(1) Lack of SMJDX

Front 28

What are the 3 ways to respond in a complaint and what are the effects?

Back 28

(1) Admit

(2) Deny

(3) Don't know (neither)
-Not allowed for public knowledge
-Not allowed if in ∆'s control

NOTE:
Anything not specifically denied is admitted.

Front 29

When must the answer be filed?

Back 29

20 days after service of process

OR

10 days after court has ruled on ∆'s motions

OR

60 days from π's mailing of request for waiver of services of process

Front 30

What must be raised in the answer besides responses to allegations?

Back 30

(1) Affirmative Defenses
-if not pled, waived

(2) Compulsory Counterclaims
-if not pled, waived

(3) Permissive Counterclaims
-Not waived if not pled

(4) Crossclaims
-Not waived if not pled

Front 31

What is the difference between a Compulsory and a Permissive Counterclaim?

Back 31

(1) Compulsory Counterclaims
-Arises out of the same transaction or occurrence
-if not pled, waived

(2) Permissive Counterclaims
-Does not arise out of the same t/o
-Not waived if not pled

Front 32

If you get a case dismissed through a motion, are you barred from brining a compulsory counterclaim because it was not pled?

Back 32

NO.

If you haven't yet filed an answer, you have not waived it.

Front 33

Is there such thing as a compulsory crossclaim?

Back 33

NO

Because they must arise out of the same t/o, there is no need to categorize them

Front 34

What is the difference between a crossclaim and a counterclaim?

Back 34

(1) Counterclaim
-Against opposing party
-Need not arise out of the same t/o

(2) Crossclaim
-Against co-party
-MUST arise out of the same t/o

Front 35

When can a complaint a P's complaint and a D's answer be amended?

Back 35

RIGHT TO AMEND:
(1) Defendant
Once within 20 days after serving his answer
(2) Plaintiff
Once before D serves his answer

LEAVE OF COURT
Both P and D can seek leave of court to amend
Court will grant if justice so requires
I.e., No delay or prejudice

Front 36

If P introduces evidence at trial that is NOT pertinent to the claims contained in the complaint, what may happen?

Back 36

Variance

-P may move to amend to complaint to reflect those claims
-Moral of the story, OBJECT

Front 37

How can a claim be amended to a pleading after the SOL has run?

Back 37

Relation back doctrine:

It holds that if an amended pleading concerns that same T/O it will "relates back" to the original so it can avoid SOL problems.

Front 38

How can a D be changed in a pleading after the SOL has run?

Back 38

Relation back doctrine:

IF:

(1) Same T/O; AND
(2) New party knew of the action within 120 days of its filing; AND
(3) New party also knew that, but for a mistake, she would have been named

NOTE:
CA calls this a "misnomer"

Front 39

What MUST be disclosed?

Back 39

(1) Initial Disclosures:
-14 days after 26(f) conference
-Identify all persons
-Give copies to those persons
-Of all info likely to be discoverable
-That may be used to support its claim or defense

(2) Experts
-Identify who may be used at trial

(3) Pretrial
-Not later than 30 days before trial
-Disclose all evidence and witnesses

Front 40

What are the 5 federal discovery tools?

Back 40

(1) Depositions
-Party or non-party with subpoena
-Subpoena Duces Tecum (bring items)
-10 max (may request more)
-2 per person max
-7 hours max
-100 miles travel max

(2) Interrogatories
-Parties only
-25 max (may request more)
-30 days response time

(3) Request to produce
-Party or non-party with subpoena
-30 days response time

(4) Physical or mental exams
-Court order required
-"good cause"
-health is in actual controversy

(5) Request for admissions
-Party only
-30 days response time

Front 41

What does counsel warrant with every discovery request?

Back 41

(1) Warranted
(2) Not an improper purpose
(3) Not unduly burdensome


NOTE:
Rule 11 does NOT govern discovery

Front 42

Does an attorney have an affirmative duty to supplement responses to discovery requests?

Back 42

YES

NOTE:
This is NOT true in CA

Front 43

What is discoverable?

Back 43

"Anything relevant to a claim or defense."

Relevant =
-Reasonably calculated to LEAD to the discovery of admissible evidence
-Need not be admissible itself

NOT privileged material

Front 44

What material is "privileged" and therefore not discoverable?

Back 44

(1) Work Product
-Material prepared in anticipation of litigation
-By party, agent, attorney, attorney's agent

(2) Consulting Experts
-Not going to be called at trial

Front 45

When can privileged material be discovered?

Back 45

(1) Not mental impressions, opinion, theory, etc.
(2) Substantial need
(3) Not otherwise available

Front 46

If a party does not believe that requested discovery is discoverable, e.g., trade secretes or privileged, what should he do?

Back 46

Seek a "protective order."

Front 47

If a party's request for a protective order is denied, will sanctions be imposed?

Back 47

YES

(1) Partial violation
-Answering some and objecting to others
-Minor sanctions

(2) Total Violation
-Not responding
-Major sanctions

Front 48

How does a party seek to have sanctions imposed against another party?

Back 48

Certify that she tried in good faith to get the info without court involvement

IF partial violation
(1) Seek order compelling party to produce plus order to pay costs
(2) If that fails seek major sanctions plus cost
(3) Possibly contempt

IF total violation
(1) Straight to major sanctions plus costs

Front 49

What are "major sanctions"

Back 49

(1) Establishment order (our facts are true)
(2) Strike pleadings (in re to violation)
(3) Disallow evidence (in re to violation)
(4) Dismiss case (bad faith required)
(5) Default judgment (bad faith required)

-Judge's choice

Front 50

When MAY a co-party (P or D) be joined?

Back 50

(1) Arises from same T/O
AND
(2) Raises at least 1 common question

Front 51

Who MUST be joined as a co-party?

Back 51

A "Necessary and Indispensable" party

-If this person cannot be joined, the case MUST dismiss

Front 52

What are the 3 questions that must be asked regarding Necessary and Indispensable parties?

Back 52

(1)Are they required?
(i) Complete relief cannot be had without absent party (A); OR
(ii) A's interest may be harmed; OR
(iii) A claims an interest which subjects a party to multiple obligations

(2) Is joinder feasible?
(i) PJDX
(ii) SMJDX (diversity not disturbed)

(3) Can they be joined?
(i) Is there an alternative forum
(ii) what is the actual likelihood of prejudice
(iii) can the court avoid prejudice
*If not, they are "indispensable" and case must be dismissed

Front 53

What is impleader and when is it typically used?

Back 53

(1) Defending party wants to add someone to the law suit
(2) Typically used for indemnity or contribution
(3) Right to implead w/in 10 days of answer
(4) Must serve process
(5) Must have SMJDX or Supplemental

Front 54

May P assert a claim against a 3rd party D (impleader)?

Back 54

YES

So long as the claim arose out of the same T/O

Front 55

What are the 3 types of 3rd party joinder issues?

Back 55

(1) Impleader
-D joins a party

(2) Intervention
-Party joins on his own

(3) Interpleader
-Quiet title to property force all to join
-Settle this once and for all

Front 56

What are the 5 types of joinder?

Back 56

(1) Counterclaim
(2) Cross Claim
(3) Impleader
(4) Intervention
(5) Interpleader

"I" new party
"C" existing party

Front 57

Initial requirements for a class action?

Back 57

(1) Numerosity
-Too may to join

(2) Commonality
-Common issues of law or fact

(3) Typicality
-Rep's claim is typical

(4) Representative is adequate
-Rep will fairly and adequate represent

Front 58

What are the 3 types of class actions?

Back 58

(1) Prejudice
-Depleting common fund

(2) Damages
-Mass tort

(3) Injunction or declaratory
-Civil Rights

Front 59

Class Action "Big Picture"

Back 59

INITIAL REQUIREMENT
(1) Numerosity
(2) Commonality
(3) Typicality
(4) Adequate Rep

TYPE
(1) Prejudice
(2) Damages
(3) Injunction/declaratory

CERTIFICATION

NOTICE

OPT OUT
(1) Damages type only

BOUND

SMJDX

Front 60

Particular requirements of a "Damages Type" class action?

Back 60

(1) Common questions predominate

(2) Class action is superior method

(3) Notice
-may opt out
-bound if not opt out
-may have own attorney

(4) 2nd Notice
-Settlement or dismissal
-Input from class
-2nd chance to opt out

Front 61

How do you determine whether a class action meets the Diversity and AIC requirements for diversity jdx?

Back 61

Look ONLY to the class rep's claim:
-Rep Diverse
-Rep's claim > $75,000

-Special rules for the class action fairness act of 2005

Front 62

What happens when P voluntarily dismiss his case?

Back 62

P may do so without paying D's cost IF:

(1) First dismissal
(2) Without prejudice (before answer or motion)

P may have to pay D's cost other wise

If not 1st dismissal, P must ask for court's permission

Front 63

In what ways may a claim be dismissed of before trial?

Back 63

(1) Voluntary dismissal
(2) Default/default judgment
(3) Failure to state a claim (12(b)(6))
(4) Motion on the pleadings
(5) Summary judgment

Front 64

What is the difference between a default and a default judgment?

Back 64

DEFAULT
-D failed to respond within 20 days of service
-Clerk enters this into docket

DEFAULT JUDGMENT
-D made no response at all
-The claim is for a certain sum of $
-Claimant gives affidavit swearing the amount owed
-D is NOT a minor or incompetent
-Claimant seeks this

Front 65

When will a 12(b)(6), failure to state a claim, be granted?

Back 65

(1) Judge only looks at the face of the complaint
(2) Judge assumes all P's allegations as true
(3) Judge determines that P cannot win

-Judge does NOT consider any evidence

Front 66

What is the difference between:

(1) Failure to state a claim (12(b)(6))
(2) Motion on the pleadings
(3) Summary judgment

Back 66

(1) Failure to state a claim (12(b)(6))
-Motion before answer
-Judge does NOT considers evidence

(2) Motion on the pleadings
-Motion after answer
-Judge does NOT considers evidence

(3) Summary judgment
-Motion after answer
-Judge considers evidence

Front 67

What are the 3 conferences and meetings held before trial?

Back 67

(1) Rule 26(f) Conference
-21 days before scheduling conference
-Discuss claims, defenses and settlement
-Must form and submit discovery plan within 14 days of conference

(2) Scheduling Order
-Set cut-offs for joinder, amendments, motions, etc.

(3) Pretrial Conferences
-As needed to encourage settlement
-Final evidence to be proffered
-Final issues to be tried

Front 68

Right to a jury trial in federal court?

Back 68

-7th amendment right

-Civil actions in law NOT equity

-Even incidental issues at law require jury

-Must demand w/in 10 days after service of last pleading raising law issues

-6 to 12 jurors

Front 69

Federal voir dire...

Back 69

-Unlimited strikes for cause

-3 peremptory challenges (NOT based on race or gender)

Front 70

What are the 4 trial/post motions that take the case away from the jury?

Back 70

(1) JMOL
(2) RJMOL
(3) Motion for New Trial
(4) Motion to set aside judgment

Front 71

What are the differences between:

(1) JMOL
(2) RJMOL
(3) Motion for New Trial
(4) Motion to set aside judgment

Back 71

(1) JMOL
-Request to decide the case as a matter of law
-Brought after opposing side has been heard
-Reasonable people could NOT disagree on the result
-Evidence viewed in light most favorable to non-moving party

(2) RJMOL
-Request to change winner to loser
-Brought w/in 10 days after judgment
-Must be reserved via JMOL motion
-Jury reached verdict no reasonable people could reach

(3) Motion for New Trial
-Request for new trial
-Brought w/in 10 days after judgment
-Must have prejudicial grounds:
*error; new evidence; misconduct; against evidence; +/- damages

(4) Motion to set aside judgment
-Request to set aside judgment
-Brought w/in reasonable time (unless clerical error-unlimited)
-Must have grounds:
*clerical error; mistake; new evidence; judgment is void

Front 72

Appeal of final judgment...

Back 72

(1) Within 30 days
(2) of Final judgment:
-denial of grant of new trial motion
-grant or denial of RJMOL
-grant of new trial motion not FJ*

Front 73

What is an interlocutory review?

Back 73

It is the appeal of an issue that is not after a final judgment.

EX: denial of injunction; controlling issues of law; collateral order; denial of certification of class; extraordinary writ

Front 74

Under the "present" traditional basis for asserting PJDX, what is the limitation?

Back 74

∆'s presence cannot be procured through trick or fraud.