Civ Pro Problem Areas

Voluntary Dismissal

can be done once without prejudice before D files answer or motion for SMJ; also possible by stipulation or court order; not a final judgment on the merits

Limitations on Removal

2 limitations to removing case based on DIVERSITY JX

• D is citizen of forum state

• more than 1 yr has passed since case was filed in state court

Original Venue is Improper - Which Law Applies

the transferee applies its own choice of law

Court’s Discretion to Transfer Venue

• court’s may transfer from one PROPER venue to another

• no strict time limit

• judge may refuse transfer where case has been pending for some time and would create prejudice

RS Btw Removal & Venue

• in properly removed case, venue is proper in fed court of state where case is pending even if venue would have been improper had P originally filed in fed dist court of that state

• venue lies in the fed dist court embracing the place where such state action is pending

Who Can Exercise Removal

ONLY the D

Federal Action Commencement

the filing of the complaint commences the action

Jury Trial Demand

a party must file a WRITTEN demand and serve it on ALL parties within 14 days after the service of the last pleading directed to the jury triable issue

Amending Complaint for Issue Not Raised by the Pleadings

• an issue not raised by the pleadings is treated as if raised by the pleadings if it is tried by the parties’ express or implied consent

• a party may move at any time, even after judgment to amend the pleadings to conform them to the evidence and raise the unpleaded issue

Entering Default Judgment

on request of P supported by affidavit as to amount due, clerk may sign and enter judgment for that amount and costs against D if

• P’s claim is for a sum certain

• default was entered bc D failed to appear

• defaulted D is not infant or incompetent person

• damages requested is not greater than amount requested in complaint

Review of Discretionary Matters

on discretionary matters the judge decides, the court of appeals will affirm unless district court abused their discretion (plain error)

Motion for Relief From Order or Judgment (New Evidence)

can file on grounds of newly discovered evidence that could not have been discovered with DUE DILIGENCE for new trial motion, newly discovered facts must have existed at time of trial

must be in rxbl time (no more than 1 year)

Merger v. Bar (Claim Preclusion)

where CLAIMANT won the earlier suit, claim is said to be MERGED into prior judgment. where D won earlier suit, claim is BARRED

Removal Discretion

federal judge does not have discretion to decline removal

Rule 11 Sanctions

in signing a pleading, the attorney represents that he has made a valid inquiry into the factual and legal grounds for the pleadings. a signature alone is insufficient for sanctions, there must have been some objective misconduct on the part of the attorney or client

Issue Preclusion

• valid final judgment on the merits

• same issue actually litigated and determined in case 1

• issue was essential to judgment in case 1

• can only be used against someone who was a party or in privity

• by someone who was a party

  • nonmutual defense IP

  • nonmutual offensive IP (check mutuality fairness factors)

Collateral Attack

default judgments that are constitutionally or procedurally defective are subject to collateral attack

Improper Service (1st Class Mail)

if no acknowledgement is made to summons and complaint improperly served via 1st class mail, D must be served according to FRCP, if not = procedurally defective