Civil Procedure

What issues are considered exclusively federal questions?

maritime, patent, and copyright

Subject Matter Jurisdiction

courts legal authority to hear and decide a particular type of case

Brennan's Stream of Commerce

knowledge held by defendant that their components could be incorporated into a final product and therefore they can be held liable in states in which those products have contacts

Fraudulent Joinder

if defendant suspects plaintiff added a defendant solely to barr diversity jurisdiction, defendant can remove to federal court and argue that there was no factual basis for cause of action against the added defendant

What happens if a defendant shows up to dispute PJ under special appearance, but they bring up issues other than PJ?

they waive their special appearance privilege and can be served right then and there

Forum Non Conveniens

gives the court the ability to dismiss a case that was originally filed in the correct venue with instructions to file in the more convenient venue

What 3 elements must you have to file a case?

Subject matter jurisdiction, personal jurisdiction, and proper venue

Can subject matter jurisdiction be waived?

No

When can a lack of subject matter jurisdiction be brought up?

at any time throughout the end of appeals

Consent/Waiver

you can waive your rights/consent to defend yourself in a given state through expressed or implied

What is expressed consent?

consent is given to defend against suits brought in a forum

What is implied consent?

inaction or by showing up to court to fight a lawsuit

Personal Jurisdiction

court's authority to bring a defendant before the court for a particular case

28 U.S.C § 1446 (a)

defendant(s) desiring to remove any civil action from State court shall file a notice of removal explaining grounds for removal

28 U.S.C § 1446(b)(1)

notice of removal shall be filed within 30 days after service to the defendant

28 U.S.C § 1446 (2)(A)(B)

civil action removed solely under 1441 (a) all defendants who have been properly joined and served must all consent to removal and they have 30 days after service to remove

28 U.S.C § 1447 (c)

motion to remand on basis other than a lack of subject matter jurisdiction must be made within 30 days after notice of removal is filed

28 U.S.C § 1367 (c)

courts can decline to use supplemental jurisdiction

-claim raises a novel or complex issue of State of law

-claim substantially predominates over the claim or claims over which the district court has original jurisdiction

-other compelling reasons

28 U.S.C § 1391 (statute only)

venue generally

28 U.S.C § 1404

gives the courts the ability ONLY to transfer the case if it was originally filed in the right venue

28 U.S.C § 1406

gives the court the ability to transfer or dismiss a case originally filed in the wrong venue

Special Appearance

if a defendant shows up to dispute personal jurisdiction matter, plaintiff cannot serve them at the courthouse to establish jurisdiction

28 U.S.C § 1331 (statute only)

federal question jurisdiction

28 U.S.C § 1332 (statute only)

diversity jurisdiction

28 U.S.C § 1367 (a)

claims are related to the original fact pattern

28 U.S.C § 1441

any civil action brought into State court of which the district courts of the U.S. have original jurisdiction may be removed by the defendant(s) to the federal courts of the U.S.

28 U.S.C § 1441(b)(2)

In-State Defendant rule: civil action that solely has diversity jurisdiction cannot be removed if any defendant properly joined is a citizen of the state in which the claim is filed

28 U.S.C § 1367(b)

no supplemental jurisdiction if under 1332, defendant added under rules 14, 19, 20, and 24 destroy diversity jurisdiction

Remand

if defendant improperly removed, plaintiff can make a motion to remand case back to state court

General Personal Jurisdiction

where defendant is considered "at home"

individual: where they currently reside and where they intend to remain indefinitely

corporation: where they are incorporated and principal place of business

Long Arm Statute

gives authority to a State court to have jurisdiction over a person from another state if they have certain connections to the state

O'Connor Stream of Commerce

must be some activity directed (purposeful direction) at the State

Concurrent Jurisdiction

if there is subject matter, both State and Federal court has jurisdiction, plaintiff decides where to file

Corporation Domicile

place of incorporation and principal place of business (nerve center test)

Federal Question Jurisdiction

gives the district courst the original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the U.S.

Steven's Stream of Commerce

should consider volume, value of sales, hazardousness of product in assessing whether personal jurisdiction is appropriate

Diversity Jurisdiction

well pleaded amount in controversy exceeds $75,000 and there is complete diversity

28 U.S.C. § 1332 (a) (statute only)

complete diversity

28 U.S.C § 1332 (b) (statute only)

amount in controversy exceeds $75,000

U.S. Constitution Amendment XIV, Section 1

U.S. citizen: States must give everyone equal protection under due process and cannot have life, liberty, or property taken away by State laws without due process

Venue

proper venue for civil action shall be determined by

1. if all defendants reside in the same state, any district in which a defendant is domiciled

2. where a substantial part of events or omissions giving rise to the claim occurred

3. if neither (1) or (2) apply, any district where any defendant is subject to personal jurisdiction

Supplemental Jurisdiction

authorizes the court to hear all other claims in the action that arise out of the same nucleus of operative facts as the original claim that confers original jurisdiction on the federal court

Specific Personal Jurisdiction

1. defendant had minimum contact with the forum (purposefully availed itself of the forum)

2. Claim arose out of those contacts

3. personal jurisdiction is consistent with traditional notions of fair play and substantial justice

Individual Domicile

where the person currently resides and where they intend to remain indefinitely

Motion to Dismiss

can file motion to have case dismissed on grounds of lack of subject matter jurisdiction, lack of personal jurisdiction, wrong venue, stating a claim in which relief is not available, and failure to necessary party

Transient/TAG

if you properly serve a defendant in the forum, the court now has jurisdiction over them whether there was general or specific jurisdiction prior

(some states do not recognize transient service)

Can personal jurisdiction be waived?

yes

Can venue be waived?

yes (v)

Erie Doctrine

concerns choice of law in federal court in diversity cases by looking at the vertical test, the horizontal test, and Erie prediction

Vertical Test (Erie)

in diversity cases, the federal court will apply applicable state substantive law (including state common law) from the highest court of the applicable state

Horizontal Test (Erie)

in diversity cases, the federal court will apply the choice of law principles from the state in which it sits

Erie Prediction

if highest state court has not spoken or hasn't spoken in a long time, federal court will try to predict how highest state court would rule today (look to persuasive sources)

Preliminary Injunctions

equitable relief with the object of preserving the status quo that must be tried within 6 months where the plaintiff has to prove harm, risk, likelihood of prevailing, and public interest

Temporary Restraining Orders

stopgap measure that is present until the court decides whether or not to grant a preliminary injunction, usually lasts for 14 days and a party has to have a really good reason to extend beyond 14 days (takes prescedent over all other matters if granted)

FRCP 8

a party must include jurisdictional allegations (subject matter jurisdiction), a short and plain statement of the claim showing that the pleader is entitled to relief, and demand for judgment

Possible

could be in the realm of reasons as to the cause of the action (broad scope)

Plausible

has to be the likely cause of the action

Responding to the complaint options

do nothing, file a Rule 12 motion, answer by admitting, denying, or lacking sufficient information to form a belief, and file a counterclaim

Default Judgment

ruling entered against a defendant in a lawsuit because they failed to respond to a court summons or appear in court

Amending Pleadings

parties have 21 days after serving something to amend 1 time as of right

Waiving Service

if a ∆ waives service, they have 60 days to file their answer

FRCP 9

higher pleading standard for complaints alleging fraud or mistake that requires a more detailed pleading and plead with particularity meaning the π needs to allege more specifically when, where, and how the fraud/mistake was committed

Demand for judgment

demand of what you want as a relief

Rule 12(b)(1)

lack of subject matter jurisdiction

Rule 12(b)(2)

lack of personal jurisdiction

Rule 12(b)(3)

improper venue

Rule 12(b)(4) and (5)

notice/service of process

Rule 12(b)(6)

failure to state a cause of action

Rule 12(b)(7)

failure to join a required party under Rule 19

Rule 12(e)

motion for a more definite statement

Rule 12(f)

motion to strike

Rule 12(g)

bring all of your claims against a party

Rule 12(h)

if you assert any 12b 1-7, you've waived available 12b 2-5 if you do not bring those claims in the original response

Rule 11

 after making a reasonable inquiry, the lawyer certifies that the document being submitted to the court isn't used for improper purposes and allows for a non frivolous argument for extending, modifying, or reversing existing law or for establishing new law

Objective Lawyer Standard

legal professional's duty to act with an objective, reasonable, and professional mindset, free from personal biases or feelings that could compromise their independent judgment ("reasonable under the circumstances")

Frivolous

no chance of success

Safe Harbor Provision

motion by the other party that is served to the other party in which they have 21 days to amend and if the other party does not amend then it gets filed to the court

Sua Sponte

if a court issues sanctions, they issue a show cause hearing where the lawyer has to explain why they should not be sanctioned

If the lawyer gets sanctioned, does the party they are representing have to pay for any fees?

No, the lawyer has to pay for any monetary fees or expenses

Good Faith Extension of the Law (Rule 11)

a losing claim on its own is not sanctionable, a sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated, and

What are examples of different types of sanctions?

suspending a license, pay a penalty, and pay reasonable fees and expenses

Rule 18

a party asserting a claim, counterclaim, crossclaim, or third-party claim, may join any other claims against opposing party

Rule 20

joining additional parties is permissible if (1) the claims arise out of the same transaction or occurrence (or series of transactions or occurrences) and (2) there is a question of law or fact common to the joined parties

Rule 13(a)

compulsory: must join counterclaim if it arises out of the subject matter of opposing party's claim (compulsory joinder) otherwise they lose it

Rule 13(b)

permissive: may join unrelated counterclaims

Rule 13(g)

Cross claims: may bring an initial crossclaim if it arises out of the subject matter of original claim and once there is an initial crossclaim, may bring other even if unrelated (Rule 18)

Rule 14(Impleader)

∆ may implead a third party if they might be liable to ∆ for all or part of the judgment against them

Rule 21

empowers the court to sever claims that are improperly joined into separate cases

What is discoverable?

non-privileged, relevant, proportional, and non work product

What are the factors for discovery proportionality?

the case involves important issues that could broadly impact a wide range of third-parties not involved in the case, amount in controversy, parties access to relevant information, parties resources, importance of discovery in resolving the issue, and burden or expense of the proposed discovery outweighs it’s likely benefit

Work product

material prepared by attorney, party or their rep in anticipation of litigation, or in preparation for trial

What is not protected by work product?

underlying facts, effort alone (exception: if other party can show that obtaining the info on their own would be undue hardship)

Rule 26(f)

meet and confer: where parties meet to exchange their mandatory initial discovery 21 days before a scheduling conference with the judge

When are mandatory initial disclosures due?

14 days after the meet and confer

What are the different discovery tools?

initial mandatory disclosures, meet and confers, interrogatories, depositions, and document requests

Initial mandatory disclosures

must provide information that you'll likely use to support your claim/defense: individuals likely to have discoverable information, documents, damages computation, and insurance policies

Interrogatories

 written questions to the other party, normally get 25 questions and the other party has 30 days to respond

Document request

describe document with reasonable particularity and directed to other party

Depositions

live examination of a witness under oath

What can discovery not be used for?

harassment, delay trial, unreasonable or unduly burdensome relative to the needs of the case