MBE Civil Procedure

Personal Jurisdiction Analysis

(1) satisfy a state statute AND (2) satisfy the constitution

PJ Constitutional analysis

minimum contacts with forum so juris. does not offend traditional notions of fair play and substantial justice -

Clearly established if domiciled in forum, consents, or voluntarily present when served with process

(1) Contact

(1) Must result from purposeful availment and (b) have been foreseeable that D could get sued in the forum

(2) Relatedness

Does the claim arise from D's contact w/ forum?

Specific PJ - when claim arises from D's contact with forum

General PJ - where D is at home in the forum (domiciled)

Domicile

Everyone had one, and only one. Where live with intent to stay.

Corporation: (1) where incorporated AND (2) principal place of business

(3) Fairness

APPLIES TO SPECIFIC PJ ONLY

Factors:

(1) Burden on D and witnesses - does not have to be most convenient forum, just can't put party at severe disadvantage in litigation. Relative wealth of parties not determinative

(2) State's interest

(3) Plaintiff's interest

In Rem and Quasi In Rem

Here power is over property in the forum. To be constitutional, D's contacts must still meet constitutional test above

State Court SMJ

Have general SMJ - can hear almost anything EXCEPT: certain cases arising under federal law (patent infringement, bankruptcy, some fed. securities/antitrust claims)

Fed. Court SMJ

Limited SMJ. For the most part, can only hear if (1) diversity of citizens hip or (2) federal question

Diversity of Citizenship

(1) cases is between citizens of different states or between a citizen and an alien AND (2) amount in controversy exceeds $75,000

Complete Diversity Rule

No good if ANY P is a citizen of the same state as ANY D

Alienage Rules

Alien admitted for permanent resident domiciled in U.S. state is an alien.

However, rule prohibits alienage if green card alien domiciled in same U.S. state as litigant on other side

Citizenship of a Natural Person

Citizen of state where domiciled - only have one

Establish by (1) physical presence and (2) intent to make that your permanent home

Note: Test for Diversity as of when the case was filed

Citizenship of a Corporation

(1) State/country where incorporated AND (2) state/country of principal place of business

PPB = where managers direct and control corporate activities (nerve center, usually headquarters)

Citizenship of Unincorporated Association

The citizenship of ALL its members (including limited partners, etc).

Citizenship of Decedents, Minors, or Incompetents

Do not use citizenship of representative, use citizenship of the individual being represented

Amount in Controversy

Must EXCEED 75,000

Do not count interests costs.

Does not meet standard if clear to a legal certainty that amount cannot exceed 75,000, but what pl. actually wins is irrelevant

AIC Aggregations

Can aggregate claims of 1 P against 1 D - can be unrelated claims. But do not aggregate claims of multiple Ps

AIC Equitable Relief

Two tests - if either met, it's ok:

(1) Plaintiff's viewpoint - does activity seeking to injoin decrease value of property by more than 75,000

(2) Defendant's viewpoint - would it cost def. more than 75,000 to comply with injunction?

Diversity Exclusions

Divorce, alimony, child custody, or probate of an estate

Federal Question

P's complaint "arises under" federal law - is the pl. enforcing a fed. right?

Note, unless stated otherwise, regular tort, contract, and property claims are NOT federal

SMJ Over Additional Claims

Each claim must have SMJ in federal court - meaning diversity or federal question; if not either of these, it can still be heard if it invokes supplemental juris.

Supplemental Jurisdiction

Must have a common nucleus of operative fact with claim that invoked fed. SMJ - test is always met when a claim arises from the same transaction/occurrence as the underlying claim

Supplemental Jurisdiction Limitation

BUT by statute certain claims cannot invoke supp. juris. even if they meet the test: (1) in a DIVERSITY case, (2) PLAINTIFF cannot use supp. juris. (3) to overcome a lack of diversity

Supplemental Jurisdiction Discretionary Factors

Court may still decline juris. if state law claim is complex/would predominate OR if the underlying claim is dismissed early in the case

Removal

D can remove to fed. court . But if removal was improper, fed. court can remand back to state court

Pl. can NEVER remove

When to Remove

Within 30 days of service of the first paper that shows the case is removable - all defs who have been served must join - 30 days start anew with service on a new def.

What Cases Can Be Removed

Generally, any cases that meets div. or FQ

Two exceptions - apply ONLY if removing on the basis of DIVERSITY:

(1) No removal if any D citizen of the forum (instate D rule) AND

(2) No removal more than 1 year after case was filed in state court

But, as to #1, may become removable if the instate D dismissed

Where to Remove

To the federal district "embracing" the state court where the case was filed

How to Remove

D need not get permission from fed. or state court.

1. D files "notice of removal" in fed. court stating grounds of removal (FQ or div.)

2. D attaches docs served on her in state action. Serves copy of notice of removal to adverse parties. Files copy of notice in state court

Remanding Back to State Court After Removal

If P thinks removal improper for some reason other than SMJ, must move to remand within 30 days from notice of removal filed (SMJ objection can be made anytime)

Erie Doctrine

Step - Is some fed. law on point that directly conflicts with state law? If so, apply fed.

Step 2 - If no fed. law on pint, fed. just must apply state law if issue to be determined is substantive (includes elements of claim/defense, SOL, rules for tolling SOL, choice of law rules)

Step 3 - If no fed. law and issue is not one of the above, fed. judge must determine if substantive. Factors: outcome determinative, balance of interests, avoid forum shopping

Federal Common Law

Erie means no general fed. common law. But some areas where fed. courts can make up their own common law (where Congress passes a statute but fails to fill a gap like SOL, international relations, admiralty, disputes between states, right to sue fed. officer, etc)

Venue

P may lay venue in any district where (1) all defendant's reside or (2) a substantial part of the claim arose

Special Rule - if all Ds reside in different districts of the same state, P can lay venue in the district in which any D resides

(D's reside where domiciled)

Transfer of Venue

Can only transfer to district where case could have been filed - transferee must be proper venue and have PJ over def (regardless of waiver)

Exception: can transfer to any district (even improper venue) if all parties consent and court finds cause for the transfer

Two Transfer Statutes

(1) If original dist. is proper venue, court can order transfer based on convenience of parties/witnesses and interest of judgment - always discretionary. Must show public and private factors indicating transferee is center of gravity

(2) If original dist. is improper venue, court may transfer in the interest of justice or dismiss

Forum Non Conveniens

Another court that is the center of gravity but cannot transfer - dismiss or stay the case

Based on same public and private factors as transfer above. Almost never granted if P is resident of present forum. Other court must be available and adequate

Service of Process

(1) a summons and (2) copy of the complaint = process

Who Can Serve Process?

Any nonparty at least 18 years old, need not be appointed by court

How is Process Served?

(a) Personal service - given anywhere

(b) Substituted service - ok if left at def.'s usual abode and served on someone of suitable age and discretion who resides there

(c) Service on D's agent - ok if receiving service in scope of agency

(d) Any method permitted by state law

Waiver of Process by Mail

Mail D copy of complaint, 2 copies of waiver form and prepaid means of returning - if mails back within 30 days, has waived formal service

P then files waiver in court and it becomes effective

If D does not waive and does not have good cause, D pays cost of service

"Return" of Service

Person who serves process must file report with court detailing how service was made. Failure to do so does not affect validity of process

Service of Other Docs

Does not have to be formal - can deliver or mail documents to party's attorney.

If mail interrogatories which must be returned in 30 days, get extra 3 days for mail time. Can send docs by email if agreed to

Complaint

(a) Statement of grounds of subject matter juris.

(b) short and plain statement of claim, showing entitled to relief,

(3) Demand for relief sought

**Must plead facts supporting a plausible claim

Matters that Must be Pleaded with More Detail

Fraud, Mistake, and special damages

Defendant's Response

Rule 12 requires Do to respond with (1) motion or (2) answer - must be within 21 days of service of process (but 60 days if waived process)

Motions

(1) for a more definite statement or (2) motion to strike

Rule 12(b) Defenses

(1) Lack of SMJ

(2) Lack of PJ (W)

(3) Improper venue (W)

(4) Improper Process (W)

(5) Improper Service of Process (W)

(6) Failure to State a Claim

(7) Failure to join indispensable party

Can be in motion to dismiss or in answer. Waivable defenses MUST be in FIRST response or else waived

Answer

D does two things:

(1) Respond to Allegations of Complaint - admit, deny, or state you lack sufficient info to admit/deny (has effect of denial but have a duty to investigate if in your control)

Failing to deny = admitted (except damages)

(2) Raise affirmative defenses - if fail to plead it, cannot raise it later

Counterclaims

Claim against an opposing party. Included in the answer. P must respond to the counterclaim within 21 days after service

Compulsory Counterclaims

rises from same T/O as P's claim. MUST be filed or is waived. This is the ONLY compulsory counterclaim

Permissive Counterclaims

Does not arise from same T/O as P's claim. Not required to file, but can. Must determine if has SMJ

Crossclaims

Claim against a co-party. MUST arise from same T/O as underlying action, but NOT compulsory (could sue separately)

Additional Claims to Counterclaim/Crossclaim

Once you file counterclaim/crossclaim you can join additional claims to it even if unrelated, but must invoke SMJ

Amended Pleadings - Right to Amend

Plaintiff has right to amend ONCE within 21 days after def. services first Rule 12 response

Def. has right to amend ONCE within 21 days of serving answer

Amended Pleadings - No Right to Amend

Seek leave of court, will be granted if "justice so requires" - look to delay, prejudice, and futility of amendment

Amended Pleadings - Variance

Where evidence at trial does not match what was pleaded - can then amend to conform to the evidence, which ensures pleadings match what was actually tried (this applies when opposing party does not object to intro. of such evid.)

Amended Pleadings - Amendment after SOL runs - To Join a New Claim

Amended pleadings "relate back" if they concern same conduct or T/O as original pleading

Means treat amended pleading as though filed when original filed

Amended Pleadings - Amendment after SOL runs - To change Def

Will relate back if (1) concerns same conduct or T/O as original, (2) new party knew of THIS case within 120 days of its filing and (3) also knew that but for a mistake would have been named originally

Supplemental Pleadings

Set forth things that happened after pleading was filed. Always discretionary, but court will often allow unless will cause delay or prejudice

Rule 11

When lawyer or pro se client signs docs, certifies that after reasonable inquiry: (1) paper not for improper purpose, (2) legal contentions are warranted by law or nonfrivolous argument for law change and (3) factual contentions have evidentiary support

If a violation, party or attorney or law firm may be sanctioned (after chance to be heard). Purpose is to deter not punish.

Rule 11 Safe Harbor

If violation foo Rule 11, must serve motion on other parties, the party in violation has 21 days to fix the problem and avoid sanction

Required Disclosures - Initial Disclosures

Within 14 days of Rule 26(f) conference, must disclose:

(1) Identities of persons with discoverable info. that you may use to support your claims/defenses

(2) Documents and things you may use to support yoru claims/defenses

(c) Computation of monetary relief

(d) Insurance coverage

Failure to disclose = cannot be used at trial (unless justified or harmless)

Required Disclosures - Expert witnesses

Applies to witnesses who may be used at trial (not consulting experts)

Must identify and provide written report prepared by EW - must include (1) opinions EW will express, (2) bases for opinions, (3) facts used to form opinions, (4) EW's qualifications and (5) how much being paid

Other party may take depo of EW

Required Disclosures - Pretrial Req. Disclosure

No later than 30 days before trial, must give detailed info. about trial evidence, including identity of witnesses to testify live or by depo and documents/things to be introduced

When Can Party First Request Discovery?

after Rule 26(f) conference

Depositions

Person gives live testimony in response to questions by counsel. Testifies under oath. Testifies from present recollection

**May take depo. of nonparty but should subpoena non-party to compel attendance. And unless nonparty agrees, farthest can be req. to travel is 100 miles from home or place of employment

Subpoena duces tecum

Requires deponent to bring requested material with her

Limits on Depositions

Cannot take more than 10 depos or depose same person twice w/o court approval or stipulation. Deposition cannot exceed 1 day of 7 hours unless court orders or stipulation.

Use of Depositions at Trial

(1) impeach deponent, (2) any purpose if deponent is adverse party (3) any purpose if deponent is unavailable for trial (unless absence procured by party seeking to introduce evid.)

Interrogatories

Written questions to be answered in writing under oath.

** Can be sent to PARTIES ONLY

Party must respond with answers/objections in 30 days from service. Must answer from info. reasonably available to you. Max. questions is 25

Requests to Produce

Request that someone make available for review and copying documents or things. Person must respond in writing within 30 days of service, stating material will be produced or objecting

**Can request from nonparty but should subpoena

ESI should be produced in the form the requesting party specifies

Medical Exam

MUST get a court order - must show person's health is in actual controversy and "good cause"

**Only a party or someone in the party's custody or legal control

Party seeking order chooses licensed person to perform exam. Party subject to exam may request documentation but then waives any privilege concerning examinations of that medical condition

Request for Admission

Written request that someone admit things

** Parties ONLY

Failure to deny = admitted. Can only say don't know if made reasonable inquiry and cannot find enough info to admit/deny. Must supplement response

Scope of Discovery

Anything relevant to a claim or defense

Scope of Discovery - Relevant

includes things that are reasonable calculated to lead to the discovery of admissible evidence - broader than admissible

Scope of Discovery - Proportionality

Even if something is relevant, court has authority to limit discovery if request is cumulative or if burden outweighs the importance of the issue

Work Product

Material prepared in anticipation of litigation - can be prepared for party or rep of party

Qualified Work PRoduct

Some info discoverable if shown (1) substantial need and (2) it is not otherwise available

Absolute Work Product

Can never be discovered : (1) mental impressions, (2) opinions, (3) conclusions, and (4) legal theories

Asserting Privilege

Must claim protection expressly and describe materials in detail in privilege log.

If inadvertent disclosure, should notify other party promptly.

Enforcement of Discovery Rules - Protective Order

Responding party can request if thinks info. being requested for improper purpose, undue burden, etc. - must certify tried to get info w/o court involvement and asked other side to meet and confer

If court agrees, can deny discovery, limit discovery, or permit it on certain terms

Enforcement of Discovery Rules - Sanctions

Party seeking sanctions must certify tried in good fatih to get info w/o court involvement

If Partial Response:

(1) Move for order compelling party to answer plus costs of bringing motion

(2) If violates that order, RAMBO sanctions plus cots, and could be held in contempt

If No Response:

RAMBO Sanctions plus costs

RAMBO Sanctions

Establishment order, strike pleadings of disobedient party, disallow evid. from disobedient party, dismiss pl.'s case, enter default judgment against def.

Proper Defendants and Plaintiffs

Can join plaintiffs or defendants when claims (1) arise out of the same T/O AND (2) raise at least one common question

Who Is a Necessary Party?

If absentee meets any of these tests:

(1) Without A, court cannot accord complete relief among existing parties

(2) A's interest may be harmed if he is not joined

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

Note: Joint tortfeasors never necessary

Can Necessary Party be Joined?

If joinder is feasible - (1) PJ over them, (2) joining will not destroy diversity. If feasible, court orders joinder

If Necessary Party Cannot be Joined

Court must proceed w/o necessary party or dismiss the case. Factors: (a) alternative forum ? (b) actual likelihood of harm, (c) can it shape relief to avoid that harm?

If court decides to dismiss rather than proceed with, party is indispensible

Impleader

D brings in someone new . New party is third-party def.

NEVER compulsory. Can only do this to shift liability he owes to P. (so usually for indemnity or contribution)

Steps for Impleading

(1) D files third party complaint naming def.

(2) Serve process on 3d party def.

Right to implead within 14 days of serving answer, afterwards need court permission

Intervention

Nonparty brings herself into the case as a P or D. May be realigned if comes in on the wrong side

Intervention of Right

A's interest may be harmed if she is not joined and is not adequately represented now

Permissive Intervention

A's claim or defense and the pending case have at least one common question. Discretionary - usually allowed unless will cause delay or prejudice

Class Action - Initial Requirements

(a) Numerosity - too many members for practicable joinder, (b) Commonality - issue common to all members, (c) Typicality - rep.'s claims are typical of those of class AND (d) representative adequate - will fairly and adequately represent class

ALL Must be met

Class Action - Types

Must fit in one of three types:

(1) Prejudice - class treatment necessary to avoid harm to class members or non-class party

(2) Class seeks injunction or declaratory judgment because D treated class alike

(3) "Damages": (a) common q's predominate over individual q's AND (b) class action is superior method to handle dispute

Class Action - Certification

Court must certify the class - must define the class and class claims, issues, or defenses. Must also appoint class counsel

Class Actions - Notification

Must notify lass members in type (3), telling them can opt out, bound if don't and can enter separate appearance through counsel.

Class Actions - Diversity

Use rep's citizenship - ignore other class members

Temporary Restraining Order

Ex parte TRO proper ONLY IF (1) applicant files paper under oath clearly showing will suffer immediate and irreperable harm and (2) lawyer certifies in writing efforts to give oral/written notice to D

Must state terms in specificity. Effective for no more than 14 days. Can be extended add'l 14 if good cause

D can ove to dissolve or modify TRO.

Preliminary Injuction

Maintains status quo until court can adjudicate underlying claim. NEVER ex parte.

Appellant must show: (1) likely to suffer irreparable harm, (2) likely to win on the merits, (3) balance of hardship favors him and (4) injunction in public interest

Always discretionary. Must state its terms in specificity. Court must make specific findings of fact and separate conclusions of law. Immediately appealable.