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49 Cards in this Set
- Front
- Back
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How do you establish grounds for removal?
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Section 1441 allows removal where the district courts would have original jurisdiction, under 1331--federal question or 1332--Diversity jurisdiction.
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What did Helicopteros modify to "Arise out of" in PJ?
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It added "relate to" to the standard.
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Asahi's definition of FPSJ
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A function of the palntiff's interest in commencing an action in the forum state, the unfairness to the defendant of commencing an action in the forum state, and the state's interest in resolving the conflict within its courts.
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Another restatement of 1391a1:
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Venue is proper where a defendant resides, if all defendants, reside in the same state.
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Where does dismissal for forum non conviens often refer to?
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Dismissal so that the suit can be filed in a foregin state.
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How long is the statute of limitations generally for intentional torts?
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2 years. (note: in california, personal injury actions have a statute of limitations of two years).
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Aside from Venue concerns, for what does 28 USC 1404 transfer cases?
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For the convience of parties and witnesses and in the interest of justice. (it may be transferrred to where it might have been brought) !! It also must be consented to by all parties.
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How does scope of discovery affect the pleading strategy?
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26b1 allows discovery of anything that is not privileged and relevant to the claim and anything that is of good cause, relting to the subject matter. Your "good cause" would be narrower if you plead more narrowly.
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Framework for bringing an action fro due process
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1)State of federal actor; 2)Deprivation; 3)Live, Liberty or property [interest], and 4)Due process. Due Process=Matthews Test=1)Private interest; 2)Risk of Erroroneous deprivation; 3)Government interest.
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Why is the jury trial troublesome to the merger of law and equity?
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We may now have to break up cases that may have equitible and legal relief for a jury trial, making things more expensive and time consuming (Terry test)
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Why would and should a judge deny summary jdugment when there are no disputed issues of material fact?
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56a: if the plaintiff brings it up before 20 days. 56f: if more time is needed. Judge discretion: may like Adickes more than the trilogy
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What does a party being "dropped" mean in the FRCp?
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Rule 21: where a party has been improperly joinder, it may be dropped.. It means that the party is no longer involved in this particular case, but may be in another new and separate case now. This is not a dismissal which is to kick the party tot eh kick the party to the begining of the facts to remedies line.
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68
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Offer of judgement (settlement stuff)
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Why is the government immune to the consequences of nonmutual collaterla estoppel?
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The governemnt is a huge entity and to have each branch of the governemnt know what the other is doing would be too much of a burdeon on it. Also, there is some advantage in allowing the governemnt to take diffferent positions on matters of genearl public interest.
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For 28 USC 1332, where is a permanent resident domiciled?
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A permanent resident shall be deemed a citizen of the State in which such alien is domiciled.
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What can you do if you want to amend a claim to a suit but the statute of limitations is still expired and you want to continue nonetheless?
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Note that the statute of limitatoins is an affirmative defense under 8c and does not preclude further litigation if not asserted.
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Can Plantiffs remove a case?
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No. Only defendants can remove a case from state to fedearl court (1441)
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If you want to change your state claim to a federal claim by amendment, do you have to dismiss your original state claim?
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yes, and you would try to use rule 41. Otherwise, if you ignore it, the court may dismiss it with prejudice for lack of prosecution--barring further litigation of not only the causes of action asserteed but also the entire "claim".
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What do you need to worry about in a parallel suit in both fedearal and state court for the same action but under different causes of action?
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Preculusion and res judicita. I will have to worry about claim preclusion and issue preclusion from the suit that finishes earlier (provided that they don’t finish at the same time).
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What is the collateral bar rule?
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A rule which bars someone who violates a court order from trying to defend this action by arguing that the court order was unconstitutional.
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Do federal courts have jurisdiction for all interpleader actions?
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Yes.
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For rule 1367, what are the limitations to the defendant impleading someone?
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none. The defendnat is an involuntary party and can bring in another party without regard to their domicile under rule 14 (but a court may decline to hear it under 1367c)
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How to fight personal jurisdiction
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1)Take it; 2)Challenge it with a 12b2 defense; 3)Collateral Attack- Do nothing. Wait until the court grants default judgment under Rule 55. When plaintiff tries to collect on it, challenge the judgment in court. Problem here is that it’s all or nothing—if you lose, it could really suck for you
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Some additional facts about rule 41 gleaned from the practice exams:
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41a: voluntary dismissal without prejudice. 41d: costs of previously-dismissed action.
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A policy argument from rule 1 about how the rule should be construed:
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They [the rules] shall be construed and administred to secure the just, speedy, and inexpensive determination of every action.
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What is a non impleader analysis of rule 14?
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The plantiff may assert a claim against the thrid party defendnat arising out of the same transaction or occurrence.
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How do the rules enabling act check the FRCP?
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The rules enablinga ct check the FRCP because they do not allow the FRCP to override a substantive right of a party.
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Are crossclaims under rule 13g permissive or compulsory?
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Permissive (13g).
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When must compulsory counterclaims be brought and what makes them special?
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They msut be brought at the time of serving the pleading and arise out of the transaction or occurrence that is the subject amtter of the opposing party's claim.
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What is the point of all cross-claims or counterclaims?
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be them comulsory or permissive,t he point of all cross-claims and counterclaims is to allow the parties to bring any action that they have against one another at the same ttime while they are all before the court.
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45
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Subpoena. Note that we can use the subpoena in conjunction with rule 34c which proves for requests for documents and inspections for nonparties through a subpoena. Rule 30b1 also states that the persons being deposed and the materials to be produced are to be set forth in teh subpoena.
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how does the matthews test build upon and take away from the values of due process?
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Due process guarentees that the people have a right to have a meaningful opportunity to be heard. The test builds upon this by allowing even a small private interest to be considered if there is a high risk of erroneous deprivation and a low governemnt interst. The test move away from these vaues by allowing the governemnt to provide less proces more easily if th eprivate interest is not substantial. This is much more different than having a meaningful opportunity to be heard.
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When would we hear that a plantiff's legal remedies are inadequate in a civil action?
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When there is a request for some equitible relief (injunctions, etc). --means that monetary damages rea insufficient.
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Does the fact that something might be done for one purpose mean that it should be done with that purpose (heel dragging, etc)
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No. Ex: a motion to dismiss might e filed to inflict delay does not mean that it should be assuemd that this is the case. Think to rule 11 sanctions for things not done in good faith.
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When does the computation of time add 3 days to the prescribed period?
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When served under 5b2--B,C or D: by mail, leaving it with the clerk of the court or delivering it by any other, non normal means.
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If the counting of the dates is below 11 days but we get three added to it, do we count weekends and holidays?
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No. The prescribed time is still under 11 days.
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If there has been a motion to amend a complaint with me as the extra defendnat and nothing else, must I answer any interrogatories served upon me?
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No, because I am not yet a party to the action. Interrogatories can only be served on parties.
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What happens in a motion to dismiss when the defendant attaches affadavits supporting his argument that the plaintiff cannot prevail?
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This would look like a rule 56 summary judgement motion. The plantiff may move for a rule 56f to get more time.
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What is the catch phrase to use when evaluating summary judgement?
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that the evidence must show that there is no genuine issue as to any material fact and that the [D or P] is entitled to judgment as a matter of law.
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Does Rule 11 offer positive or negative incentive?
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Negative. Its not "do this and you'll be rewarded". Its: "Don’t do that or you'll be punished".
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What kind of sanctions are there for not responding to the safe harbor rule 11c1a?
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If the sanctioned party loses [ie the sanction is applied] the prevailing party gets to reimburse their reasaonbel epenses and attorneys fees. Note that the current policy is to use the least harsh means of sanctioning and the fees often go to the court.
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prong 3 of rule 15c analysis: (restated)
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15c3 states that there must be an original pleading with which to relate back, there must be a mistake and that the D must have had notice within the time of the complaint until 120 days after the statute of limitations (rule 4m) that, but for the mistake, D would have been named a party.
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two elements of summary judgement
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1)no dispute of material fact; 2)entitlement to judgement as a matter of law. (rule 56)
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in whose favor must the judge construe summary judgement?
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In the light most favorable to the non-moving party.
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In a restatement of the easy chair, what did Celotex give us for summary judgement?
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That no reasoanble jury could make an inference from the evidence.
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What are some slam dunks for corporation personal jurisdiction?
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That the forum state is where the company was incorporated or where its principle place of busniess is.
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How does 1367 allow state law claims to be heard in federal court?
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By having them joinined with claims that can be heard in federal court with 1331 (1332 is tricky for part b. so long as not original party) if they arise out of a common nucleus of operative facts (note the danger of this clause in that courts are reluctant to allow this.. 1367b & c)
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May a party orally depose a person and then later again depose that same person a second time with written questions?
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Yes, only if they ge leave of court under 31a2b or if the partys stipulate in writing. All the othe rurles would need to be followed but watch out for 26b2 which limits the frequencey and extent of discovery to prevent unreasoanbly cuumulative or duplicitaive information. There also may be local rules that limit this (think of eire).
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24
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intervention (I think the mcgeorge classes covered this stuff).
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