Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
63 Cards in this Set
- Front
- Back
|
What is Notice & Service of Process?
|
After PJ is established, P must serve D with a "summons" + "copy of complaint"
CA: 60 from filing Fed: 120 |
|
|
Personal Service vs. Substituted Service
|
1. Personal Service to Δ: Papers given to Δ personally, anywhere in forum state.
2. Substituted Service to someone of suitable age and discretion who resides at Δ’s usual abode. |
|
|
Waiver by Mail
|
It is Ok that process is mailed to Δ (1st class, postage prepaid) if Δ returns waiver form within 30 days—waives only service of process (nothing else, ie lack of personal jx). If waives service, Δ has 60 days from Π’s mailing of wavier form to answer. (CA: 20 days, no extra time to answer)
|
|
|
Subject Matter Jurisdiction - Basic Idea?
|
Basic Idea: Federal power to hear dispute. Once Π decides to sue Δ in a particular state, must be determined whether to sue in state or fed ct.
|
|
|
Describe the "well pleaded complaint" rule
|
III. Federal Courts: only jx over two types of claims:
A. Federal questions: Is Π enforcing a Federal Right? 1. Citizenship of parties, amt in controversy not relevant. 2. Well-pleaded complaint rule: Π’s claim, properly pleaded, (sets forth a claim and nothing else) must be based on fed law. 3. ** If a Π’s claim invokes diversity or FQ JX, the case is in fed court. But there may be additional claims in that case. For every claim joined in fed court, always ASK whether it invokes diversity or FQ. If so, it can come into fed court. If not, try supplemental jx. |
|
|
Define Requirements for Diversity of Citizenship Cases
|
(1) action must be b/w citizens of different states, or b/w citizen of a state and a foreign citizen
(2) Amt in controversy must exceed 75K EXCLUDING interests and costs |
|
|
How do you define citizenship for a human being?
|
citizen = a person's domicile
domicile = (1) presence in a state (2) intent to permanent live there. |
|
|
When do we test a person's domicile?
|
at time the case is filed. So, of D lives in NY and P lives and CA and then D later moves to CA after the case is filed we still have diversity.
|
|
|
What a corporation's citizenship?
|
citizenship for corps =
(1) all states where incorporated; and (2) principal place of business. |
|
|
Citizenship Partnership/Unincorporated Association
|
citizenship of all members
|
|
|
Amount in Controversy in DIversity cases must exceed ____ and must be a ___ _____ estimate of the damages.
|
amount in controversy must exceed 75K and must a good faith estimation of damages.
UNless clear to a legal certainty that she cannot recover 75K. |
|
|
Aggregation Doctrine
|
General Rules:
To meet the diversity amount... (1) 1 Plaintiff can aggregate claims against 1 Defendant. (2) 1 Plaintiff can aggregate claims against joint tortfeasors |
|
|
Amount in Controversy in Equitable Relief Claims
- Π sues Δ for injunction to tear down part of his house that blocks Π’s view. If either test is met, goes to fed ct. Two Views: |
i. Majority: Π’s viewpoint. How much was Π harmed? (does blocked view decrease value of Π’s prop by over $75K?)
ii. Minority: Defendant’s viewpoint, i.e. how much would it cost Δ to comply/prevent the harm? (would it cost more than $75K to comply?) |
|
|
What subject matters are excluded from federal court?
|
alimony, divorce, bankruptcy, child custody etc.
|
|
|
Supplemental Jurisdiction
Basic Idea? |
): For every claim joined in Fed Court, we need a basis for subject matter jx. SJ allows a federal court to entertain joined claims over which it would have no independent basis of subject matter jurisdiction.
Simple Rules: 1. P cannot use SJ to overcome a lack of diversity in a diversity case. 2. P can use SJ to overcome lack of diversity in a FQ case. 3. P can use SJ to overcome lack of amount of controversy for claims by Plaintiffs in diversity cases 4. Ok to use SJ to overcome lack of complete diversity or amt in controvery in any case (diversity of FQ) for claims by anybody but the P |
|
|
"THE TEST" for supplemental jurisdiction
|
the claim we want to et into federal court must share a "common nucleus of operative fact" with the claim that invoked federal subject matter jurisdiction. This test is ALWAYS met by claims that arise from the same transaction or occurrence (T/O) as the underlying claim.
|
|
|
What is the limitation on SJ?
|
BUT in a diversity case, the P cannot use SJ to overcome a lack of diversity.
|
|
|
Describe the rule on Judge Discretion to hear the supplemental claim.
|
Rule: the ct has the discretion not to hear the supplemental claim if :
(1) FQ is dismissed early in the proceedings, or (2) state law claim is complex, or (3) state law issues would predominate. |
|
|
REMOVAL
Basic Idea? |
A Defendant sued in state ct might be able to "remove" the case to federal ct.
- Removal is a ONE way street, it can transfer a case ONLY from state to federal. If improper, fed ct will remand back to state ct |
|
|
What's the test for removal?
|
a case is removable if the case could have been heard in federal court (meets fed SMJ)
Others Rules: (1)Timing - D has 30 days to remove after service of the 1st removable doc. (2) All D's must agree to remove (3) Diversity Cases - no removal is allowed if any D is a citizen of that forum. (4) if DIversity case, no removal more than one year after the case was filed in state court. |
|
|
Erie Doctrine
Basic Idea? |
The question will be whether the ct must apply state law on some issue.
- In Diversity cases, federal ct MUST apply state substantive law. |
|
|
Erie Doctrine - Steps
|
1. is there a fed law (constitution, FRCP, statute) on point that directly conflicts with state law? If so, apply the federal law as long as its valid (Supremacy clause)
2. If there is no fed law on point, ask: "is this issue one of the easy ones: a. elements of a claim or defense b. statute of limitations c. rules for tolling statutes, why are these easy? B/C they are substantive! 3. If no fed law, and not one of the easy ones, but fed judge wants to ignore state law? if the issue is substantive she must follow state law. |
|
|
What's the test for removal?
|
a case is removable if the case could have been heard in federal court (meets fed SMJ)
Others Rules: (1)Timing - D has 30 days to remove after service of the 1st removable doc. (2) All D's must agree to remove (3) Diversity Cases - no removal is allowed if any D is a citizen of that forum. (4) if DIversity case, no removal more than one year after the case was filed in state court. |
|
|
Erie Doctrine
Basic Idea? |
The question will be whether the ct must apply state law on some issue.
- In Diversity cases, federal ct MUST apply state substantive law. |
|
|
Erie Doctrine - Steps
|
1. is there a fed law (constitution, FRCP, statute) on point that directly conflicts with state law? If so, apply the federal law as long as its valid (Supremacy clause)
2. If there is no fed law on point, ask: "is this issue one of the easy ones: a. elements of a claim or defense b. statute of limitations c. rules for tolling statutes, why are these easy? B/C they are substantive! 3. If no fed law, and not one of the easy ones, but fed judge wants to ignore state law? if the issue is substantive she must follow state law. |
|
|
Venue
- Basic Idea? |
Subject matter jurisdiction told us we can take a case to federal ct. Venue tells us exactly WHICH federal court. the country is divided into federal districts. P is suing in federal ct and wants to lay venue in a proper district.
|
|
|
Venue
Local Actions vs. Transitory Action |
Local Actions = ownership or possession of land. any case related to land must be filed in the distrct where the land lies.
Transitory = Everything else! |
|
|
Transfer of Venue
|
Transfer of venue from one fed district ct to another fed district ct
..but only where the case could have been filed (proper venue + PJ over D) |
|
|
Transfer of Venue
What factors do we look at? |
(1) Convenience - is it convenient on the parties and witnesses?
(2) Interests of Justice - If venue in original forum is improper, ct may transfer in interests of justice or dismiss |
|
|
Transfer of Venue
When a case is transfered to a new federal district court, what is the rule on "choice of law"? |
Rule = Ct to which case is transfered applies choice of law of the original court, even if P sought the transfer.
|
|
|
Forum Non Conveniens
Basic Idea? Factors? |
Doctrine states that if there a far more convenient and appropriate court somewhere else (i.e. foreign country), then the current court MAY dismiss or stay the case to let P sue D there.
- the reason why the court doesn't transfer the case and instead dismisses/stay is bc IT CANT TRANSFER BC TRANSFER IS IMPOSSIBLE! Factors = same as for transfer of venue. |
|
|
Pleadings
What is Rule 11 Certification? |
Rule 11 = requires attorney to sign all papers (except discovery docs, that follows its own rule)
Why? signatures indicate the person is certifying to the best of his knowledge and belief that: 1. the paper is not for an improper use 2. legal contentions are warranted by law (not frivolous) 3. Factual contentions and denials of factual contentions have evidentiary support |
|
|
What are rule 11 Sanctions?
|
rule = sanctions may be levied against attorney, firm or party. They suppose to deter a repeat of bad conduct
|
|
|
What is the Safe Harbor Period?
|
Motion for violation is served on other parties but is not immediately filed with court FOR 21 Days.
...this way the guy has 11-21 days to fix the "problem" |
|
|
Pleadings
Requirements for a Complaint "well pleaded complaint rule" |
Requirements:
1. statement of grounds for SMJ 2. short and plain statement of the claim showing entitled relief 3. Demand for relief sought Fed Cts = use notice pleadings = "enough info to put other side on notice of the claim" |
|
|
Pleadings -
Defendant's Response |
Rule 12 requires D to answer in one of two ways
(1) by Motion (2) by Answer Fed = w/in 20 days after SoP CA = w/in 30 days after SoP |
|
|
Pleadings
D's Answer |
Def: D's response to the allegations of the complaint
3 ways: (1) admit (2) deny (3) lack sufficient info to admit or deny (acts as a denial) NOTE: failure to deny acts as an ADMISSION! |
|
|
Pleadings
Raising Affirmative Defenses |
Basic Idea = even if everything P says is true, P cannot win!
Examples: SOL, SOF, Res Judicata, Self-Defense Big Rules 1. if not pleaded D risks waiving them! 2. Timing - answer must be served w/in 21 days after SoP - if D opted to make a Rule 12 Motion, and it was later denied, D now has 14 days to submit his answer from the day of the ct's ruling on the motion! |
|
|
Rule 12 Motions
|
THEY ARE NOT PLEADINGS, THEY ARE REQUESTS!
12(e) = Motion for more definate statement 12(f) = Motion to strike (b/c immaterial i.e demand for jury when no right exists in case) 12(b) Defenses: 1. Lack of SMJ (never waived) 2. Lacked of PJ* 3. Lack of Improper Venue* 4. Insufficiency of Process* * = waived if not raised in first response (5) failure to state a claim (6) failure to join indispensable party. |
|
|
Pleadings
The Counterclaim (2 types) |
def: offensive claims against an opposing party filed w/ D's answer.
1. Compulsory - Arises from the same T/O as P's claim. - Needs to be filed in answer or else its WAIVED! - Always check if there is SMJ over the counterclaim. if not try Supplemental J. 2. Permissive - Does NOT arise from T/O as P's claim - Does not have to be asserted in the pending case, so D may file it w/ answer in this case or can assert it in a diff new case |
|
|
Pleadings
Cross-claims |
Def: Offensive claims against a co-party that must arise from same T/O as underlying action.
- NEVER COMPULSORY - always asses SMJ, and use supplemental J if needed! |
|
|
Pleadings
Raising Affirmative Defenses |
Basic Idea = even if everything P says is true, P cannot win!
Examples: SOL, SOF, Res Judicata, Self-Defense Big Rules 1. if not pleaded D risks waiving them! 2. Timing - answer must be served w/in 21 days after SoP - if D opted to make a Rule 12 Motion, and it was later denied, D now has 14 days to submit his answer from the day of the ct's ruling on the motion! |
|
|
Rule 12 Motions
|
THEY ARE NOT PLEADINGS, THEY ARE REQUESTS!
12(e) = Motion for more definate statement 12(f) = Motion to strike (b/c immaterial i.e demand for jury when no right exists in case) 12(b) Defenses: 1. Lack of SMJ (never waived) 2. Lacked of PJ* 3. Lack of Improper Venue* 4. Insufficiency of Process* * = waived if not raised in first response (5) failure to state a claim (6) failure to join indispensable party. |
|
|
Pleadings
The Counterclaim (2 types) |
def: offensive claims against an opposing party filed w/ D's answer.
1. Compulsory - Arises from the same T/O as P's claim. - Needs to be filed in answer or else its WAIVED! - Always check if there is SMJ over the counterclaim. if not try Supplemental J. 2. Permissive - Does NOT arise from T/O as P's claim - Does not have to be asserted in the pending case, so D may file it w/ answer in this case or can assert it in a diff new case |
|
|
Pleadings
Cross-claims |
Def: Offensive claims against a co-party that must arise from same T/O as underlying action.
- NEVER COMPULSORY - always asses SMJ, and use supplemental J if needed! |
|
|
Pleadings
What are the 3 simple rules for Amendments to Pleadings? |
1. P has right to amend ONCE w/in 21 days after D serves his response
2. D has right to amend ONCE w/in 21 days after serving his response 3. when there is no right to amend, ct will grant it if "justice so requires" - factors = (1) delay, (2) Prejudice and (3) Futility of Amendment |
|
|
Pleadings
What is a Relation-Back Doctrine? |
Basically = P wants to amend the complaint to add a new claim but the SOL has run.
Rule = P can still do so if the amended pleadings relate back, meaning they involve the same conduct, T/O as the original pleading. If P is seeking to add a new D, relation back will apply ifs: (1) It concerns the same conduct, T/O as original (2) the new D knew of the action w/in 120 days of filing (3) the new D, but for a mistake, would have been named in the original pleading. |
|
|
Pleadings
What are the 3 simple rules for Amendments to Pleadings? |
1. P has right to amend ONCE w/in 21 days after D serves his response
2. D has right to amend ONCE w/in 21 days after serving his response 3. when there is no right to amend, ct will grant it if "justice so requires" - factors = (1) delay, (2) Prejudice and (3) Futility of Amendment |
|
|
Pleadings
What is a Relation-Back Doctrine? |
Basically = P wants to amend the complaint to add a new claim but the SOL has run.
Rule = P can still do so if the amended pleadings relate back, meaning they involve the same conduct, T/O as the original pleading. - To change the D after SOL has run (1) P sues wrong D (2) SOL runs out, (3) but the right D new about it |
|
|
Joinder of Parties
Basic Idea, Rule? |
P is structuring the case and may want multiple parties on one side or the other - so who may be joined as co parties?
Rule = several Ps and Ds MAY be joined if there claims: (1) arise from same T/O and (2) Raise at least one common question. If met, then ASSESS SMJ! (can the case as structured invoke diversity or FQ?) |
|
|
Necessary and Indispensable parties
|
If Joinder of necessary party is NOT feasible (i.e. would destroy diversity) then the Ct must either:
(1) proceed w/o absentee or (2) dismiss the case - If case dismissed, we call the absentee party "indispensable" Notes on Indispensable parties: (1) Joint tortfeasors are not indispensable (2) to decide whether to proceed or dismiss, look to the following factors - (a) is there an alternative forum available - (b) whats the likelihood of prejudice? - (c) can the ct shape relief to avoid that prejudice? |
|
|
Joinder of Parties
Basic Idea, Rule? |
P is structuring the case and may want multiple parties on one side or the other - so who may be joined as co parties?
Rule = several Ps and Ds MAY be joined if there claims: (1) arise from same T/O and (2) Raise at least one common question. If met, then ASSESS SMJ! (can the case as structured invoke diversity or FQ?) |
|
|
Necessary and Indispensable parties
|
If Joinder of necessary party is NOT feasible (i.e. would destroy diversity) then the Ct must either:
(1) proceed w/o absentee or (2) dismiss the case - If case dismissed, we call the absentee party "indispensable" Notes on Indispensable parties: (1) Joint tortfeasors are not indispensable (2) to decide whether to proceed or dismiss, look to the following factors - (a) is there an alternative forum available - (b) whats the likelihood of prejudice? - (c) can the ct shape relief to avoid that prejudice? |
|
|
Joinder
Intervention |
Basically - Absentee wants to join a pending suit. Chooses to come as Π or Δ. Court may realign her if it thinks she came in on the wrong side.
- Application to intervene must be “timely.” A. Intervention as of Right: absentee’s interest may be harmed if not joined and her interest not adequately represented now. B. Permissive intervention: absentee’s claim/defense and the pending case have at least 1 common question. Discretion w/ court. 1. No supplemental jurisdiction allowed if intervention will mess up diversity |
|
|
Joinder
Impleader |
claims involving a third party defendant (TPD) brought (usually by Δ) in a vicarious liability situation. Reason: TPD may owe indemnification/ contribution to defending party on underlying claim. Rt to implead w/in 10 days of serving answer. After that, need ct permission.
A. Indemnity or Contribution 1. Indemnity: seek from employer 2. Contribution: seek from joint tortfeasor B. Supplemental jurisdiction (if needed): ancillary availably if not Π. 1. Π v. TPD: no ancillary jx, but perhaps could invoke pendent if orig. claim invoked FQ. C. Subj matter jx—Bulge Rule: absentees joined as necessary party or by impleader may be served outside forum state, regardless of state law w/in 100 miles of courthouse. |
|
|
Joinder
THE CLASS ACTION! (Requirements) |
I. Fed Rules for Class Actions
A. Initial Requirements (numerosity, common questions, typicality, fair and adequate rep) 1. Numerosity: Class is so numerous that joinder of all members is impracticable 2. Common Questions: There are common questions of law or fact to the class 3. Typicality: Representative claims typical of the class claims a. A Class rep must be part of the class and possess same interest and suffer same injury as the class members. 4. Adequacy of Rep: The representative parties will fairly and adequately protect class interest |
|
|
THE CLASS ACTION!
(must fit w/n 1 of 3 types) |
A. Prejudice: class treatment is necessary to avoid harm either to class members or to party opposing class (inconsistent adjudications). (e.g., limited fund, individual law suits will deplete fund leaving others w/o remedy)
1. No notice required. Least likely. B. Injunction/declaratory judgment (not dmgs): sought b/c class was treated alike by other party (ie employment discrimination). 1. No notice required C. Damages: (1) Common Q’s predominate; & (2) class axn superior method to handle dispute. ie mass tort. Most likely. Rep pays for notice. 1. Notice requirement: notify all reasonably identifiable members. Notice tells them: a. Option to opt out b. Binding effect of class judgment on class members. c. They can enter separate appearance through counsel |
|
|
THE CLASS ACTION!
(certification, FQ, Diversity) |
III. Court must determine at an early practicable time whether to certify the case to proceed as a class action. Class counsel must fairly and adequately represent the interests of the class. No settlement or dismissal of class claims in a certified class w/o court approval.
IV. If class invokes FQ jurisdiction, class action can proceed in Fed Court V. If class action is brought under Diversity of Citizenship: A. Look only to the citizenship of the representatives, no other class members B. For amount of controversy, if the representative’s claim exceeds $75K C. Class Action Fairness Act of 2005: Allows fed cts to hear a class action if any class member is diverse from any Δ and if aggregate claims of the class exceed $5,000,000. Idea: make it easier for interstate actions to go to fed ct. |
|
|
Discovery
Whats the scope of discovery? |
Anything relevant to a claim or defense is discoverable
relevant = reasonably calculated to lead to the discovery of admissible evidence. |
|
|
Discovery of Work Product Material. What the rule?
|
If the material was prepared in anticiaption of litigation then its protected from discovery.
- an otherwise undsicoverable work orudct may be discovered with proof of: (1) substantial need and (2) otherwise unavailable - work product doesnt have to be made by lawyer (could be doc report) |
|
|
Enforcement of Discovery Rules
(3 main ways discovery probs are presented to ct) |
3 main ways discovery problems are presented to ct:
1. protective order -order limiting disclosure for some reason 2. partial violation - recieving party answers some but objects to others. If the objections are not upheld, its a partial violation, so we expect a light sanction. 3. total violation - receiving party fails completely to respond. expect a heavy sanction |
|
|
2 steps involved when there is a partial violation of discovery request
|
1. can get an order compelling the party to answer the unanswered questions, plus costs of bringing motion.
2. IF the party violates the order compelling him to answer RAMBO sanctions plus costs and could be held in contempt for violating a court order |
|
|
RAMBO SANCTIONS!
|
- basically the choices available to the judge
1. establshment order (judge establishes the facts as true) 2. strike pleadings of the disobedient party (as to issues re the discovery) 3. Disallow evidence from the disobedient party 4. Dismiss plaintiff's case (if bad faith shown) 5. Enter default judgment against D (if bad faith shown) |
