Civ Pro Barbri Must Remember`

Front 1

Personal Jurisdiction Elements (2)

Back 1

In personam = Statutory and Constitutional

Front 2

Statutory in personam jurisdiction is satisfied by:

Back 2

long arm statute,
domicile, consent

Front 3

Constitutional in personam jurisdiction is satisfied by

Back 3

Minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice

Front 4

My Parents Frequently Forgot to Read Children's Stories

Back 4

Minimum contact =
Purposeful availament &
Foreseeability

Fairness =
Relatedness
Convenience
State's interest

Front 5

Subject Matter Jurisdiction

Back 5

Diversity & Federal Question

Front 6

Diversity Jursidiction needs (2)

Back 6

Complete diversity and $75K in damaages

Front 7

Citizenship is determined by: (1) person, (2) corporation

Back 7

person = domicile (presence + intent)

corporation = incorporation AND principal business (nerve center / muscle center)

Front 8

Federal Question Test

Back 8

Well pleaded complaint rule.

Is the plaintiff enforcing a federal right?

Front 9

Supplemental Jurisdiction Test

Back 9

Must share "common nucleus of operative fact" = arises from same transaction / occurence.

Limitation = Plaintiffs asserting in diversity case, such that it would violate complete diversity.

Front 10

Removal: Who, Where, When, Test

Back 10

Who: Defendant only (all D's must agree)
Where: Only districts embracing the state court
When: 30 days after service of first removable document
Test: Federal court must have Diversity / FQ jurisdiction

Front 11

Limitation on Removal:

Back 11

Defendant's cannot remove in a diversity case only, if any defendant is a citizen of the forum.

Front 12

Erie Doctrine (State substantive law, types)

Back 12

Federal court must play state substantive law

Easy ones = (1) elements of claim / defense, (2) SOL, (3) rules for tolling SOL, (4) conflict of law rules

Front 13

No federal law on point Erie / Hanna test:

Back 13

(1) Outcome determinative? state law
(2) Balance of interests
(3) Avoid forum shopping

Front 14

Venue (local)

Back 14

Actions re: ownership, possession, or injury to LAND are local and must be filed in place where land lies.

Front 15

Venue (transitory)

Back 15

Any district where:

(1) ALL defendants reside (if same state, any district OK), OR
(2) A substantial part of the clam arose

Front 16

Where do defendants reside for venue purposes

Back 16

People = domicile

Corporations = ANYWHERE there is PERSONAL JURISDICTION. (not just citizenship test, its broader)

Front 17

Transfer of Venue Test

Back 17

Can only transfer to district where case COULD have been filed.

(1) Must be proper venue
(2) Must be proper personal jurisdiction

Cannot WAIVE these requirements!

Front 18

Forum Non Coveniens

Back 18

Upon petition by defendant, Court has discretion to transfer based upon (1) public factors, (2) private factors

Front 19

Service of Process Test (2)

Back 19

(1) Summons, and (2) a copy of the complaint.

Front 20

How is process served? (5)

Back 20

(1) Personal service (in forum state)
(2) Substituted service (d's home, someone who lives there)
(3) Agent
(4) State law
(5) Waiver by mail

Front 21

Rule 11 Pleadings concept

Back 21

Attorney signs, saying after -reasonable inquiry-, paper is not (1) improper purpose, (2) warranted by law / nonfrivolous, (3) factual contentions AND denials have evidentiary support (or likely will)

This is a "continuing" certification

Front 22

Sanctions Process for Rule 11 violations

Back 22

Serve the sanction, not file it.

Party has "safe harbor" to correct in 21 days

If no correction, then file in court.

Court can sua sponte get sanctions without safe harbor.

Front 23

Elements of the Complaint (3)

Back 23

(1) Subject matter jurisdiction
(2) Short / plain statement of the claim
(3) Demand for relief

Notice pleading (traditional) vs. Must plead facts supporting the plausible claim (more recent)

Front 24

What three matters must be pleaded with particularity or specificity?

Back 24

(1) fraud
(2) mistake
(3) special damages (doesn't normally flow from an event)

Front 25

Defendant's response can be either:

Back 25

Rule 12 motion, or answer, within 20 days after service of process

Front 26

Waivable defenses

Back 26

(1) Process (insufficiency of, or service)
(2) Venue
(3) Personal jurisdiction

Front 27

Elements of answer: (4)

Back 27

(1) Admit
(2) Deny
(3) Not enough information to
(4) Affirmative defenses (must be raised)

Front 28

Compulsory counterclaim

Back 28

Arises from same transaction or occurence as P's claim.

Must be filed, or its waivd.

Front 29

Permissive counterclaim

Back 29

Does not arise from same T/O as P's claim. Can file it here, or in separate case

Front 30

Crossclaim

Back 30

(1) MUST arise from same T/O.

Its NEVER compulsory.

Front 31

Amending Pleadings (Plaintiff / Defendant Court's discretion)

Back 31

Plaintiff: Right to amend ONCE before D serves the answer

Defendant: Right to amend ONCE within 20 days of serving his answer

If no right to amend, seek leave of court: Will be granted if "justice requires" [court looks at DELAY and PREJUDICE}

Front 32

Relation Back doctrine

Back 32

Amendment after statute of limtiations has run, the amended pleadins will relate back if they concern the same conduct, transaction, or occurence as the original pleading

Front 33

Variance Pleading

Back 33

Can do this is evidence at trial does not match what was pleaded. We want the pleadings to reflect what was tried.

Front 34

Discovery - Required Disclosures

Back 34

(1) initial disclosures - likely to have information that disclosing party may use to support its claims / defenses

(2) Experts - who will be used at trial

(3) Pretrial - 30 days before trial, give detailed information about evidence, witnesses, etc.

Front 35

Discovery Tools will help you get P-PAID:

Back 35

Produce
Physical / Mental Exam
Admissions
Interrogatories
Depositions

(1) Depositions [parties / nonparties]
but nonparties are subpoenad, can do a duces tecum to get documents

(2) Interoggatories (parties only)

(3) Requests to produce (partys / nonparties [with subpoena])

(4) Physical / Mental examination (court order only, need "good cause")

(5) Request for Admission (parties only)

Front 36

Scope of discovery

Back 36

Anything relevant to a CLAIM or DEFENSE (e.g. in the pleadings)

For good cause, court can order discovery relevant to SUBJECT MATTER of case (broader)

Front 37

Definition of "relevance" in discovery

Back 37

Reasonably calculated to lead to the discovery of admissible evidence.

Front 38

Work Product / Privileged discovery

Back 38

(1) Work product = prepared in anticipation of litigation.

Cannot get unless (a) substantial need, and (b) NOT otherwise available

Can be prepared by ANYBODY, not just lawyers (e.g. private investigator)

(2) Priviliged = (a) mental impressions, (b) opinions, (c) conclusions (d) legal theories. CANNOT get these.

Front 39

Enforcement of Discovery Rules (3 Fact patterns)

Back 39

(1) Protective order

(2) Partial violation - light sanction, then motion to compel, then RAMBO sanctions

(3) Total violation - RAMBO sanctions automatic

Front 40

Rambo sanctions will cause blood DRIPS

Back 40

(D)ismiss action / default judgment
(R)esolve issues against party
(I)mpose attorneys fees & punitive sanctions
(P)reclude party from offering evidence
(S)trike that party's pleading

Front 41

Party Joinder Test - "Is it allowed / feasible?"

Back 41

(1) Arise from same T/O

(2) Raise at least one common question

(3) Personal jurisdiction over party

(4) Will not defeat diversity

Always do subject matter jurisdiction as well.

Front 42

Party Joinder Analysis

Back 42

(1) Is joinder ALLOWED and FEASIBLE?
(2) MUST we join?

Front 43

Necessary and Indispensable Parties - "Must we join?"

Back 43

Absentee:

(1) Without A, court cannot afford complete relief

(2) A's interest will be harmed

(3) A has interest which subjects a party to risk of multiple obligations

Front 44

Joint tortfeasor Rule for Joinder

Back 44

Joinder of joint tortfeasors is NOT necessary

Front 45

If A cannot be joined (he's "indispensable", what happens?

Back 45

(1) Proceed without him, OR
(2) Dismiss whole case.

Court will look at (1) is there alternative forum? (2) What is actual likelihood of prejudice? (3) Can court shape relief to avoid that prejudice?"

If court dismisses, the party is INDISPENSABLE

Front 46

Impleader Rule

Back 46

Defending party brings in someone new (3rd party defendant) because TPD owes indemnity or contribution to D on underlying claim.

Right to implead w/in 10 days after serving answer, after that need court permission.

Steps: (1) file third party complaint naming TPD, (2) serve process (so there is personal jurisdiction)

Always asses subject matter jdx!

Front 47

Impleader Party's claims

Back 47

D can assert cross claim against TPD if arises from same T/O

TPD can assert claim against P if arises from same T/O

Front 48

Intervention

Back 48

Court will realign parties if it thinks he's on the wrong side. Application to intervene must be "timely."

Front 49

Class Action Initial Requirements:

Back 49

Numerosity
Commonality
Typicality
Representative adequate

Must meet all 4!

Front 50

Class action case must fit one of three types:

Back 50

(1) Prejudice
(2) Injunction / declaratory judgment
(3) DAMAGES (common questions predominate over individual questions, AND class action is superior method to handle dispute)

Front 51

Notification of class of pendency of class action

Back 51

(1) court must notify all reasonably identifiable class members by mail.

Gives class members a chance to opt out (for damages classes only)

Front 52

Settlement / dismissal of certified class action Rule

Back 52

need court approval --> court gives second chance to class members to opt out.

Front 53

Subject Matter Jurisdiction for class actions

Back 53

Either federal question, or diversity based on citizenship of representative only. Representative's claim ALONE must exceed $75K.

Front 54

Failure to State a Claim Test

Back 54

(1) Court looks at face of complaint.

(2) Assuming all allegations are true, if P proved all she has alleged, would she win a judgment?

Also, if on its face it shows a complete defense, that would bar the claim.

Also called Judgment on the Pleadings after D has answered - same thing

Front 55

Summary Judgment Test

Back 55

Moving party must show (1) no genuine dispute as to material issue of fact, and (2) he is entitled to judgment as a matter of law.

Front 56

Summary Judgment Evidence

Back 56

Views evidence in light most favorable to nonmoving party.

Pleadings are not evidence

Front 57

Summary Judgment Affidavits

Back 57

(1) If offered by D, then P must offer as well
(2) Must be based on personal first hand knowledge (hearsay no good)

(3) credibility is NOT judged on summary judgment.

Front 58

Pretrial Conferences Concept

Back 58

Court may hold pretrial conferences to expedite case and foster settlement. Final conference determines issues to be tried and evidence to be offered.

Record order that will SUPERSEDE the pleadings

It may be amended to prevent manifest injustice --> tough standard.

Front 59

Right to Jury Trial in Federal Court Timeliness

Equity vs. Law

Back 59

Request made in writing by 10 days after service of last pleading raising triable jury issue

No right to jury trial on equity, only on law. If its combined cases, then you split.

Jury issues usually go first.

Front 60

Right to Jury Trial Peremptory v. Strikes for cause

Back 60

Unlimited strikes for cause
Three peremptory strikes (in race and gender neutral way)

Front 61

Motion for Judgment as Matter of Law

Back 61

(same thing as directed verdict).

Brought after other side has been heard.

TEST: Reasonable people could not disagree on the result

Front 62

Renewed Motion for Judgment as a Matter of Law

Back 62

After jury comes back with decision. First JMOL must have been made at trial.

Same Standard

Can be made within 10 days after entry of judgment

Front 63

Motion for New Trial

Back 63

Grounds: Anything judge thinks: (1) Prejudicial errors, (2) New evidence that could not have been obtained (3) Prejudicial misconduct of party / attorney / juror (4) serious error of judgment by jury

Front 64

Final Judgment Rule

Back 64

Appeal can only be from final judgments, which means an ultimate decision by the trial court on the merits of the entire case.

File notice of appeal within 30 days of final judgment.

Test: Is there anything left to do on the merits of the case? If so, not final.

Front 65

Interlocutory Review

Back 65

Appealable from Nonfinal review - from (1) interlocutory orders, (2) collateral order, (3) class action certification (within 10 days of order).

Front 66

Claim Preclusion (res judicata) (3 requirements)

Back 66

You only get to sue on a claim once.

Requirements: (1) Case 1 and Case 2 were brought by SAME CLAIMANT, against the SAME DEFENDANT

(2) Case 1 ended in a VALID FINAL JUDGEMENT on the MERITS

(3) Case 1 and Case 2 asserted the SAME CLAIM

Majority view: A claim is any right to relief arising from a transaction or occurence

Minority view: There are separate claims for property damage and personal injuries because different primary rights. Throw in both tests

Front 67

Issue Preclusion (collateral estoppel) (5 requirements) SPAME

Same Parties in prior lawsuit
Actually litigated and determined
Judgement on Merits / final
Essential to prior judgment

Back 67

Narrower than claim preclusion. Precludes relitigation of an issue litigated before.

4 Requirements:

Parties (both) in prior lawsuit (majority mutuality rule)
Actually litigated and determined
Judgment on merits / final
Essential to prior judgment

Front 68

Minority Nonmutality Defensive Rule for Issue Preclusion

Back 68

Nonmutal defensive issue preclusion: (one using it was not a party in case 1, and is defendant in case 2) --> Can use if P had a full & fair opportunity to litigate the issue in case 1

Front 69

Minority Nonmutality Offensive Rule for Issue Preclusion

Back 69

Nonmutaul offensive issue preclusion (one using it was not a party in Case 1 and is the plaintiff in case 2) --> Probably not, but will allow if its UNFAIR:
(a) full and fair opportunity to litigate,
(b) D could foresee multiple sits
(c) P could not have joined easily in Case 1
(d) no inconsistent judgments on record

Front 70

Joinder Analysis (Summary)

Back 70

(1) CAN the parties to be joined?

(2) MUST party be joined?

(3) Is it FEASIBLE to join party?

(4) If joinder not feasible, can action PROCEED or is it DISMISSED?

Front 71

If joinder not feasible, can action PROCEED or is it DISMISSED?

Back 71

Look at PREJUDICE and ADEQUACY:

(a) Judgment would prejudice party's / absence p's interests.
(b) Prejudice can be reduced
(c) Judgment would be adequate
(d) Plaintiff will be deprived of adequate remedy

Front 72

MUST party be joined?

Back 72

a) complete relief cannot be given
(b) or absence will impair her interest
(c) or absence would expose parties to double / inconsitent obligations

Front 73

Is it FEASIBLE to join party?

Back 73

(a) Personal Jurisdiction
(b) Will not destroy diversity / venue

Front 74

(1) CAN the parties to be joined?

Back 74

(a) Same T /O
(b) Common Question Law / Fact

Front 75

Collateral Order - when is it appealable (3)

Back 75

(1) Order conclusively determine disputed question
(2) Resolves important issue separate from merits of action
(3) Unreviewable on appeal otherwise

Front 76

Relation Back Elements (3)

Back 76

(1) Same T/O
(2) Within 120 days
(3) Notice

Front 77

TRO Elements (3)

Back 77

(1) Irreparable Injury
(2) Balance of interests
(3) Likelihood of success on merits

Front 78

Abstention Concepts (4)

Back 78

Colorado River --> Risk of duplicative litigation and balance of factors (very narrow)

Pullman --> Unclear state law obviates need to decide federal issue

Younger --> Will not enjoin state pending proceedings

Burford --> Fed jdx will interfere with complex state regulatory scheme

Front 79

Forum Selection Clause, and exceptions

Back 79

Factor in considering venue, in addition to convenience of parties and interests of justice

Exceptions: Will not be upheld if:
(1) no reasonable basis
(2) no true consent
(3) law would be contrary to fundamental public policy of state with greater interests.

Front 80

Mandamus

Back 80

(1) extraordinary
(2) no other adequate means
(3) court's action were serious abuse of power and must be immediately corrected.

Front 81

Reasons for court to decline supplemental jurisdiction

Back 81

(1) novel issue of state law
(2) supp claim predominates over original claims
(3) district court dismissed all other original claims
(4) compelling reasons
(4)

Front 82

Constitutional requirements for service of process

Back 82

Notice reasonably calculated to give parties opportunity to object.