Civil Procedure - Bar Prep

Notice of Process

Summons and Complaint

90 Days

Days plaintiff has to serve defendant with complaint:

Substituted Service

Acceptable for someone who lives in same abode:

1. is at defendant's usual abode

2. Substitute is a suitable age and discretion

Service upon Agent

Acceptable if accepting service is within the scope of the agency with the defendant

Service by mail or email

acceptable if permitted by state law

Service on minor or incompetent person

use any method permitted by state law

Service in a foreign country

use a method allowed by international agreement (Hague Convention); if no agreement:

1. as directed by US Courts

2. method allowed by foreign country's law

3. method directed by foreign official in response to to a letter of request (rogatory) from US court

4. personal service in the foreign country (unless prohibited by law of the country)

5. mail sent by the clerk of the US court requiring signed receipt (unless prohibited by the foreign country's law)

Waiver of service

Permitted if D executes and mails waiver form to P within 30 days of receiving request to waive service

Types of subject matter jurisdiction

1. Federal Question

2. Diversity

Diversity Jurisdiction

1. the case is between citizens of different states, and

2. the amount in controversy exceeds $75,000

Complete Diversity Rule

Violated if any P is a citizen of the same state as any D.

Domicile of a person

established by:

1. physical presence

2. intent to remain

Domicile of a corporation

1. state where incorporated

2. state of principal place of business

Principal Place of Business

State where its managers: 1. direct; 2. coordinate; and; 3. control business activities

Citizenship of an unincorporated association

(Partnership, LLC, etc.)

Citizenship of all its members

Aggregation of claims

A plaintiff can aggregate claims if (1) the case is one P against one D or (2) if P sues joint tortfeasors.

Equitable Relief (for diversity jurisdiction)

Permitted if:

1. the loss to the plaintiff would be more than $75,000; or

2. the cost to the defendant of complying with the injunction would be more than $75,000.

Cases federal courts will not hear

1. Divorce

2. Alimony

3. Custody

4. Probate

Federal Question Jurisdiction

Jurisdiction given to federal courts when the plaintiff's complaint arises under federal law (I.e. if the plaintiff is suing to enforce a federal right)

Removal Jurisdiction

transfers a case from a state trial court to a federal trial court

Remedy for improper removal

remand case back to state court

Cases that can be removed

cases that meet requirements for diversity or federal question jurisdiction

Cases that cannot be removed

the defendant is in state or

the case was filed more than a year ago in state court

Notice of Removal

filed in federal court stating grounds of removal (I.e. grounds for SMJ either diversity or FQ)

Notice of Removal (requirements)

1. file notice of removal;

2. serve plaintiff with notice of removal; and

3. files notice of removal in state court

Supplemental Jurisdiction

gets claims into federal court even if the claim individually do not invoke diversity or FQ jurisdiction

Supplemental Jurisdiction Test

Claim we want to get into federal court must share a "common nucleus of operative fact" w/ claim that invoke federal SMJ. Test is ALWAYS met by claims that arise from the same transaction or occurrence (T/O) as the underlying claim.

Supplemental Jurisdiction Limitation

In a Diversity case, the PLAINTIFF cannot use supplemental jurisdiction to overcome a LACK OF DIVERSITY.

Does not apply to FQ cases, D, or problems w/ amount in controversy.

Erie Doctrine

the federal district court sitting in a diversity case must apply state substantive law to resolve claims arising under state law

Erie Test

1. Is there some federal law that conflicts with the state law?

2. If there is no conflicting federal law, is the issue substantive?

3. If not one of 4 substantive issues, court applies balancing factors to determine whether the issue is substantive

Mandatory substantive issues (Erie)

1. Elements of a claim or defense

2. Statute of limitations

3. Rules for tolling statutes of limitations

4. Conflict (or choice) of law rules

Proper Venue

1. where all defendants reside; or

2. a substantial part of the case arose

Corporation Domicile

all districts where subject to PJ in this case

Forum non conveniens

the right of a court to refuse to hear a case if it believes that justice would be better served if the trial were held in a different court

Remedy for forum non conveniens

federal court may dismiss or stay the case

Complaint (requirements)

1. statement of grounds for subject matter jurisdiction

2. a short and plain statement of the claim

3. demand for relief sought

Twombly/Iqbal

A complaint must plead supporting a plausible claim; measured subjectively by the judge

12b6 motion

Motion to dismiss for failure to state a claim that can be brought by either party

Must be pleaded with particularity/specificity

1. Fraud

2. Mistake

3. Special Damages

D's options for responding to complaint

1. motion (to dismiss)

2. answer

12E - Motion for a More Definite Statement

motion filed because the complaint is so vague or ambiguous that D cannot respond; this motion must be made before an answer

12F Motion to Strike

asks the court to remove redundant or immaterial things from pleadings; any party may move for this

12B Defenses

are affirmative

1. Lack of SMJ

2. Lack of PJ

3. Improper Venue

4. Improper process

5. Improper service of process

6. Failure to state a claim

7. Failure to join an indispensable party

Waiveable 12B Defenses

Lack of PJ

Improper venue

Improper service

Improper process

Timing for 12b6 and 12b7 motions

anytime before trial

14 days

Days D has to file if 12b6 motion is denied

Failure to raise affirmative defense

the court may find that D has waived the defense

21 days of serving answer

Defendant has a right to amend her answer once within this number of days

Factors for permitting amendment

Delay, futility, prejudice

Supplemental Pleading

raises claims/facts that have occurred AFTER the initial pleading was filed

Rule 11

applies to all documents except discovery and certifies that after reasonable inquiry, they are not being filed for an improper purpose, legal contentions are warranted by law and are not frivolous; and factual contentions and denials have evidentiary support; violation of this rule is grounds for sanctions

21 days of serving complaint

Plaintiff has a right to amend her complaint once within?

Rule 11 Safe Harbor

One party can serve the motion for Rule 11 sanctions on the opposing party, and the opposing party then has 21 days to remedy the violation before the party files the motion

Sua Sponte Rule 11

permitted, but safe harbor rule does not apply

Claim Joinder

plaintiff can join any additional claim they like, even if the additional claim is wholly unrelated to the original claim

Proper Ps and Ds

Claims:

1. arise from the same t/o; and

2. raise common questions

Necessary Absentees

Anyone who:

1. without A, the court cannot complete relief among existing parties (worried about multiple suits); or

2. A's interest may be harmed if he is not joined (practical harm); or

3. A claims an interest that subjects a party (usually D) to a risk of multiple obligations

Joint Tortfeasors

Necessary joinder of parties does not apply to what types of Ds?

Compulsory Counterclaim

arises from the same t/o as P's claim and unless filed in this another case must be asserted here

Crossclaim

A claim against a co-party that arises from the same t/o as the underlying action; not compulsory

Permissive Counterclaim

A claim that does not arise from the same t/o as the plaintiff's claim; not required to file in this case, but may

SMJ for counterclaims

SMJ must be assessed for every additional claim (either diversity or FQ)

Impleader

A defending party (usually D) is bringing in another party to the case; typically a third party defendant (TPD)

Indemnity or contribution

Usually purpose of an impleader claim

Steps of Impleader

1. D files a third party complaint naming the TPD; and

2. Serve process on the TPD (so must have PJ over TPD).

Right to Impleader

Right to raise within 14 days of serving your answer

Intervention

a non-party who brings themself into the current case as either a P (to assert a claim) or as D (to defend a claim)

Class representative

designated person who sues on behalf of a group

Class Action (requirements)

1. Numerosity.

2. Commonality.

3. Typicality.

4. Representative adequate

Types of class action

1. Prejudice - class treatment is necessary to avoid harm;

2. Class seeks induction or declaratory judgment against D; or

3. Common damages and common questions over questions and class action is more efficient than separate suits

Mass tort

Example of claim for common damages

Class Action Certification

It is not a class action until the court "certifies" it as such. If the court grants themotion to certify, it must "define the class and the class claims, issues, or defenses." It must also appoint the class counsel.

Damages Class Action

Notice is required for all class member in what category of class action suits

All class members who did not opt out

who is bound by the judgment of the certified class action

Settlement/dismissal of class action suit

only permitted with court approval

Diversity Jurisdiction for Class Action Suits

requires the class rep to be of diverse citizenship and have damages for HIS claim of an excess of $75,000

Discovery (definition)

the phase of litigation in which we find out what information both parties have

initial disclosures

1. ID of parties with discoverable information that you may use to support your claim or defense

2. documents and things you may use to support your claim or defenses

Scope of initial disclosures

you only have to disclose information that is in your control

Insurance coverage

D must disclose this that may cover all or part of the judgment in the present case

100 miles

furthest a non-party can be required to travel to give a deposition

Interrogatories

written questions sent only to parties to be answered under oath

30 days (interrogatories)

Number of days the party has to respond to interrogatories with either answers or objections

25 (including subparts)

Maximum number of interrogatories a party has to answer

Requests for Admission

Request sent only to parties in an attempt to procure a parties admittance or denial of material facts

30 days of service

Number of days the party has to respond to request for admission with either answers, denials, or specific objections

Duty to Supplement

after you respond to discovery, if circumstances change and in light of the new circumstances a party is under what duty?

Scope of Discovery

Anything relevant to a claim or defense and proportional to the needs of the case

Work Product

trial preparation materials that are prepared/made in anticipation of litigation; does not have to be generated by a lawyer

Qualified work product

A party is forced to turn over documents if:

1. there is a substantial need for them; and

2. the information is not otherwise available

Absolute work product

Work product that cannot be discovered because it documents:

1. Mental impressions,

2. Opinions,

3. Conclusions, and

4. Legal theories.

Litigation Hold

Requirement that when litigation is reasonably anticipated, the parties must properly preserve discoverable information

Adverse inflerence

Permits the judge to tell the jury to presume lost ESI was unfavorable to the party who lost the ESI if they did so with the intent to deprive the jury of the ESI

Ex Parte TRO

injunctive relief that can be sought ex carte if:

1. the applicant files under oath clearly showing that if not issued, he will suffer "immediate and irreparable harm" if the court does not intervene; and

2. applicant's lawyer certifies the efforts to give oral or written notice to D or D's lawyer

TRO Requirements

must state its terms specifically, describe in detail what D must do (or refrain from doing) state why it was issued, and why the threatened injury to P was irreparable

14 days; extendable to 28

Permitted length of a TRO; cannot be extended for any reason past 28 days

Preliminary Injunction (TRO)

What a TRO becomes if it is extended past 28 days

Preliminary Injunction (definition)

An order than maintains the status quo until the court can adjudicate on the merits; cannot be granted ex parte

BOP Preliminary Injunction

Applicant must show that:

1. he is likely to suffer irreparable harm if the injunction is not issued;

2. he is likely to win on the merits of the underlying case;

3. the balance of hardship favors him; and

4. the injunction is in the public interest

Voluntary Dismissal

P want to withdraw the case. Can make this motion at any time. Court has discretion. Plaintiff has this right by filing notice, and must do so before defendant serves an answer or motion for summary judgment.