Civil Procedure Review Flashcards

Vocabulary flashcards for Civil Procedure Review to prepare for the final exam.

Subject Matter Jurisdiction

The federal court must have original subject-matter jurisdiction over the action, as well over each claim, including counterclaims, cross-claims, and third- party claims.

Diversity of citizenship

For diversity jurisdiction under § 1332, there must be (1) complete diversity, meaning no plaintiff and defendant can be from the same state; and (2) more than $75,000 in controversy.

Citizenship (Individuals)

Citizen of a State if a citizen of the United States and domiciled within the state. Domicile = present plus intent to remain indefinitely.

Citizenship (Corporations)

(1) State of incorporation and (2) principal place of business (“nerve center,” i.e., corporate headquarters).

Citizenship (Unincorporated association)

The state of citizenship of each member.

Post-complaint changes of citizenship

Diversity of citizenship is determined at the commencement of the action, and commencement of the action occurs at the time the complaint is filed.

Alienage jurisdiction

A foreign citizen is considered diverse from a U.S. citizen, unless a permanent legal resident alien domiciled in the same U.S. state. But no diversity if the only parties to the case are foreign citizens or there is a U.S. citizen domiciled abroad.

Amount in controversy

Satisfied if plaintiff asserts the minimum amount in good faith, unless it appears to a “legal certainty” that the claim is really for less than the jurisdictional amount.

Aggregation

Single plaintiff with two or more unrelated claims against a single defendant may aggregate the claims to satisfy the statutory amount.

Non-aggregation

If two plaintiffs each have claims against a single defendant, they may not aggregate.

Federal question jurisdiction (Holmes Creation Test)

Section 1331 “arising under”jurisdiction usually only exists if federal law creates the plaintiff’s cause of action.

Well-pleaded Complaint Rule

A defense under federal law, even if anticipated in the plaintiff’s Complaint, does not give the court federal-question jurisdiction.

Smith exception

Very limited exception to the Holmes Creation Test: A federal issue is embedded in the plaintiff’s state law claim and it appears on the face of the plaintiff’s complaint and in the plaintiff’s statement of his cause of action

Removal (General rule)

A case may be removed by the defendant from state to federal court if the case is one over which the district courts have original jurisdiction (diversity or federal question).

The Forum State (a/k/a In-State) Defendant Exception

A case may not be removed from state to federal court on diversity grounds if any defendant “properly joined and served” is a citizen of the forum state.

Unanimity of consent rule

All defendants who are properly joined and served must consent in writing to the removal.

Removal Time Limit

Within 30 days of being or becoming removable. Court strictly applies this rule. But runs from last defendant to be served.

Removal Venue

Action must be removed to the “embracing” district.

Notice of removal

Defendant files a notice of removal, not a motion to remove.

Motion to remand

Must be filed within 30 days of removal for a defect in removal procedure (including presence of a forum defendant), but at any time for a lack of subject matter jurisdiction.

Personal jurisdiction

The court (1) must have the power to exercise personal jurisdiction and (2) that power must be exercised by the plaintiff serving process on the defendant to “summon” them to the court.

Asserting defense of lack of personal jurisdiction

If the plaintiff serves process on the defendant, and the defendant believes the court does not have personal jurisdiction on him, he can either appear and raise the defense in a pre- answer motion to dismiss under Rule 12(b)(2) or assert it in the Answer, or suffer a default judgment and assert a collateral attack later when the plaintiff seeks to enforce the judgment.

Four Ways to Exercise Personal Jurisdiction

The court has the power to exercise personal jurisdiction over the defendant if specific personal jurisdiction, general personal jurisdiction, transient presence jurisdiction, or the defendant consented to jurisdiction.

Specific personal jurisdiction

The defendant is not at home in the forum state but (a) the state’s long-arm statute grants personal jurisdiction and (2) that grant satisfies due process (because the defendant has sufficient minimum contacts such that exercising personal jurisdiction would not offend traditional notions of fair play and substantial justice).

General personal jurisdiction

The defendant is essentially at home in the forum state.

Transient presence jurisdiction

The defendant is an individual (natural person) who was served with process within the state.

Specific Personal Jurisdiction (Long-Arm Jurisdiction) First Step

First: Does the state’s long-arm statute grant state courts jurisdiction over the nonresident defendant? If no, then the federal court does not usually have personal jurisdiction over the defendant.

Specific Personal Jurisdiction (Long-Arm Jurisdiction) Second Step

If there is jurisdiction under the state’s long-arm statute, then the question is—whether the state’s exercise of personal jurisdiction is consistent with due process?

Minimum Contacts

The defendant must have certain minimum contacts with the state such that the maintenance of the suit is “reasonable” and does not offend “traditional notions of fair play and substantial justice.

Three Questions for Due Process

(1) Did the defendant have contacts with the forum state? (2) Does the claim against the defendant arise out of or is it related to the defendant’s contacts? (3) Would it be fair and reasonable to require the defendant to defend himself in the forum state?

Purposeful Availment

The defendant’s contacts with the state only count if they constitute purposeful availment by the defendant of the privileges of conducting activities within the forum State, thus invoking the benefits and protections of its laws.

Calder effects test

(1) The defendant committed an intentional tort; (2) The plaintiff felt the brunt of the harm in the forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort; and (3) The defendant expressly aimed his tortious conduct at the forum such that the forum can be said to be the focal point of the tortious activity.

Zippo interactivity test

Prevailing test for personal jurisdiction based on Internet activities (examine level of interactivity and commercial nature of the exchange, ranging on one end from knowing and repeated transmission of computer files to simply posting information on the Internet)

“Arise out of” or “relate to” requirement

In order for a court to exercise specific jurisdiction, the action must “arise out of” (have been caused by) or “relate to” the defendant’s contacts with the forum state.

Fairness Factors

Courts in appropriate cases may also evaluate the burden on the defendant (defendant’s interests), the forum State’s interest in adjudicating the dispute (forum state’s interest), the plaintiff’s interest in obtaining convenient and effective relief (plaintiff’s interest), the interstate judicial system’s interest in obtaining the most efficient resolution of controversies (country’s interest), and the shared interest of the several States in furthering fundamental substantive social policies (other state’s interest).

General jurisdiction

The defendant is subject to personal jurisdiction in the state even for claims that occur out of state.

Domicile

Physical presence and intent to remain indefinitely.

Nerve center test

Where the corporation’s officers direct, control, and coordinate the corporation’s activities (the corporate headquarters).

Transient Presence Jurisdiction

A court has general personal jurisdiction over an individual served with process in the state, even if the defendant is a non-resident and no matter how fleeting his visit.

Forum-selection clause

The plaintiff and the defendant may agree to exclusive jurisdiction in a particular state, and such clauses are generally enforceable.

Waiver of Personal Jurisdiction

Failing to assert it in a pre-Answer Rule 12(b) motion (if such a motion is filed) or failing to assert it in the Answer is a waiver

Venue

Venue determines which federal judicial district the action can be maintained in.

General federal venue statute

(1) In any district where any defendant resides if all defendants reside in the same state; or (2) where a substantial part of the events or omissions giving rise to the claim occurred; or (3) if neither of the first two, then any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to the action.

Removal Venue

Venue is proper in the federal district that “embraces” the state court from which the action was removed.

Improper venue

When venue is improper, Rule 12(b)(3) and 28 U.S.C. § 1406 provide for dismissal of the action, or under § 1406 for transfer when in the interest of justice to transfer.

Forum non conveniens

The common law doctrine is used when the more convenient forum is in another judicial system, such as a different country. The case must be dismissed, as it cannot be transferred.

Statutory transfer

28 U.S.C. § 1404 provides for transfer to a more convenient district when in the interest of justice is should be transferred “for the convenience of the parties and witnesses.

Rule 4(m)

90 days to serve a summons and copy of the Complaint.

Methods of service

Rule 4 sets forth requirements for service and incorporates state law (state law where action is pending or where process is to be served) as a permissible method (in addition to other methods).

Permissible method of service

Leaving process “with someone of suitable age and discretion” at the defendant’s dwelling and who resides there.

Waiver of service of process

Extends time to answer from 21 to 60 days. If refuse to waive, must pay costs of service if there was not good cause to refuse.

Constitutional requirement for Notice

Notice, reasonably calculated, under all the circumstances, to apprise the defendant of the pendency of the action and afford them an opportunity to present their objections.

Requirements of a Complaint

(1) short and plain statement of subject-matter jurisdiction; (2) short and plain statement of the claim showing the pleader is entitled to relief; and (3) demand for relief sought.

“Plausibility pleading standard”

Must contain sufficient factual matter (excluding legal conclusions), accepted as true, to state a claim for relief that is plausible on its face.

Fraud and mistake (heightened pleading standard)

The plaintiff must state with particularity the circumstances constituting the fraud or mistake.

Rule 11

By signing, filing, submitting, or later advocating a pleading, written motion, or other paper, the attorney certifies that it is not presented for an improper purpose, that it is warranted by existing law, and has evidentiary support.

Motion to dismiss (defenses)

Lack of subject-matter jurisdiction, Lack of personal jurisdiction, Improper venue, Insufficient process, Insufficient service of process, Failure to state a claim upon which relief can be granted, and Failure to join a party under Rule 19

Motion for more definite statement

When Complaint is a mess. Must be filed before an answer.

Motion to strike

When irrelevant and improper allegations, or improper demand. Used to strike portions of the Complaint. Must be filed before an answer.

Waiver

A party waives personal jurisdiction, improper venue, insufficient process, and insufficient service of process by omitting it from a Rule 12 motion if such a motion is made

Answer

The defendant must admit or deny the allegations in the Complaint.

Denying part of an allegation

A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

Lack of knowledge

A defendant that lacks knowledge or information sufficient to form a believe about the truth of an allegation in the Complaint must so state, and the statement has the effect of a denial.

Failure to deny

An allegation that is not denied is deemed admitted.

Affirmative defense

An affirmative defense that is not pled is waived.

Default

Defendant does not answer or otherwise defend, and the failure is shown by affidavit or otherwise, the clerk must enter a default.

Default consequences

A default operates as a defendant’s admission of liability.

Amended Pleadings: As a matter of course (“freebie”)

A plaintiff may amend its Complaint once as a matter of course within 21 days after the defendant’s service of the Answer or a Rule 12(b), (e), or (f) motion, whichever is sooner.

Supplemental pleadings

Used to allege matters that happened since the pleading to be supplemented. Filing a supplemental pleading always requires leave of court.

Relation back

Amendment of Complaint that adds a claim relates back to date of original Complaint if (1) the law that provides the applicable statute of limitations allows relation back (e.g., state law in a diversity action); or (2) it asserts a claim that arose out of the conduct, transaction, or occurrence set out in the Complaint.

Case Management Conference

As soon as practicable, the parties must confer. Fed. R. Civ. P. 26(f)(1).

Initial disclosures

At or within 14 days of the conference, the parties must exchange categories of information that the disclosing party may use to support its claims or defenses, including the names of favorable witnesses and favorable documents.

Scheduling Order

The court must issue a scheduling order as soon as practicable after receiving the parties’ case management report.

“Fact witness” experts

Must be disclosed but no written report necessary (though the disclosure must include a summary of the facts and opinions to which the expert is expected to testify).

Retained experts who will testify

Must be disclosed and accompanied with a written report. Drafts of the report are protected under the work-product doctrine.

Consulting (non-testifying) experts

Generally, no discovery from non-testifying expert consultant, unless exceptional circumstances.

Scope of Discovery

Need not be admissible to be relevant, must be proportional to the needs of the case, and cannot be privileged. The law of evidence—not discovery rules—governs privileges.

Trial preparation material (work-product doctrine)

Trial preparation material (documents and tangible things prepared in anticipation of litigation or for trial) is protected from disclosure, unless its substantial equivalent cannot be obtained without significant hardship

Depositions

Can’t take a person’s deposition twice. Can depose unwilling non-parties only by subpoena. Can depose a corporate representative (name the corporation as the deponent).

Interrogatories

30 days to respond. Can’t use against non-parties.

Requests for production

30 days to respond. Can obtain from unwilling non-parties but only by subpoena.

Requests for admission

30 days to respond. Failure to respond is admission. Can’t use against non-parties.

Physical and mental exams

Requires a motion to the court and only for good cause. Only against parties.

Resisting and compelling discovery

If a party makes a timely objection to discovery, the requesting party may file a motion to compel or the resisting party can file a motion for protective order.

Duty to preserve evidence

Once a party reasonably anticipates litigation, the attorney and the client have a duty to preserve evidence even before any formal discovery and even before the filing of a lawsuit.

Spoliation of electronic information

Sanctions must be no greater than necessary to cure the prejudice produced by the missing records and, for the imposition of the most serious sanctions (presumption it was unfavorable or dismiss the action or enter default), there must be a finding that the party acted with the intent to deprive the other party of the information’s use in litigation

Multiple plaintiffs joining together

May join together if claims arise out of the same transaction, occurrence, or series of transactions and any question of law or fact common to all plaintiffs will arise in the action.

Plaintiff suing multiple defendants

May join multiple defendants if claims against them arise out of the same transaction, occurrence, or series of transactions and any question of law or fact common to all defendants will arise in the action.

Defendant’s third-party claim (impleader)

May sue a third-party defendant if the third -party defendant is or may be liable to the defendant for all or part of the claim against it (derivative liability, usually contribution or indemnification).

Misjoinder of parties

Court may drop a misjoinder party (but not dismiss the entire action).

Plaintiff joining multiple claims against single defendant

May join as many related and unrelated claims as he has.

Defendant’s counterclaims

Must file compulsory counterclaims; may file permissive counterclaims.

Defendant’s crossclaim

May assert a cross-claim against an existing defendant but must arise out of the transaction or occurrence that is the subject of the original action or a counterclaim.

Joint tortfeasor

A joint tortfeasor is a permissive party (can be joined by plaintiff under Rule 20(a)(2) and if right to contribution can be added as third-party defendant by the defendant), but not a necessary party so plaintiff does not have to join the joint tortfeasor.

Necessary (“required”) party

A party who is subject to personal jurisdiction and whose joinder will not defeat subject-matter jurisdiction or venue (i.e., their joinder is “feasible”), and without the party being joined (1) the plaintiff cannot obtain complete relief; (2) the outcome of the case would impair or impede the non-joined party’s interests; or (3) the defendant could be subject to double (i.e., pay twice) or inconsistent obligations.

Intervention as of right

A non-party has the right to intervene when the non-party (1) claims an interest relating to the property or transaction that is the subject of the action (2) the disposition of the action may, as a practical matter, impair or impede the non-party’s ability to protect its interest; (3) the motion to intervene is timely; and (4) the existing parties may not adequately represent the non-party’s interest.

Permissive intervention

The court has discretion to permit a non-party to intervene when (1) the non-party has a claim or defense that shares with the main action a common question of law or fact; and (2) the motion to intervene is timely.

Rule interpleader

Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants.

Rule 23(a) requirements

Rule 23(a) has four requirements: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.

Class Action Fairness Act of 2005 (CAFA)

Primary objective is to ensure federal court consideration of interstate cases of national importance.