Civil Procedure

Front 1

personal jurisdiction inquiry

Back 1

1. satisfy state statute
2. satisfy the constitution (due process)

Front 2

NV personal jurisdiction statute

Back 2

reaches the constitutional limits

Front 3

constitution requirement for personal jurisdiction

Back 3

defendant has such minimum contacts with the forum so the exercise of PJ does not offend traditional notions of fair play and substantial justice

Front 4

PJ contact

Back 4

the contact must result from purposeful availment- must reach out to the forum

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a. Traditional bases of PJ:

Back 5

state of domicile, consent, being served in the forum state (if not tricked or forced into the forum).

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Factors indicating Δ’s contact with the forum state

Back 6

My Parents Frequently Forgot to Read Children's Stories

Minimum Contacts (Systematic and Continuous); Purposeful Availment; Foreseeability; Fairness; Relatedness; Convenience; States Interest

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iii. Foreseeability

Back 7

foreseeable that Δ would be sued in the forum state

Front 8

c. Fairness (fair play and substantial justice): Consider

Back 8

i. Relatedness
ii. Convenience
iii. State’s Interests

Front 9

Relatedness

Back 9

Does Π’s claim arise from Δ’s contact w/the forum

(not necessary if D has general jurisdiction- continuous and systematic ties with the forum)

Front 10

Convenience

Back 10

Forum OK unless it puts Δ at a severe disadvantage in the litigation- tough to show

Front 11

State's Interest

Back 11

iii. State’s Interests: such as providing a forum for its citizens

Front 12

II. Subject Matter Jurisdiction. Issue

Back 12

can the federal court hear the case, or should the claim be litigated in state court.

Front 13

i. Two Principle Types of Cases for FC

Back 13

Diversity or Federal Question Jurisdiction

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b. Diversity Jurisdiction

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(1) Amount in controversy EXCEEDS $75,000; and
(2) the action is b/t citizens of different states

Front 15

ii. Citizenship: who is a citizen of what state? Humans

Back 15

Domicile
i. Presence in-state AND
ii. intent to make it permanent home

A human can NOT have more than one state of domicile

Front 16

Corporation citizenship

Back 16

i. state where incorporated AND
ii. The ONE state that is the Corp’s PPB

Can have more than one citizenship

Front 17

Test for PPB

Back 17

where the managers direct corporate activities

Front 18

Unincorporated association citizenship (e.g., partnerships, LLC):

Back 18

use the citizenship of all members (that includes general or limited partners)

Front 19

citizenship of Decedents, minors, and incompetents

Back 19

look to their citizenship and NOT that of their representative.

Front 20

is jurisdiction proper if Π ultimately recovers less than $75K

Back 20

jurisdiction still ok- as long as pleading for more than $75k in good faith

BUT, Π may be liable to Δ for litigation costs, even though she won the case (does not include attorney's fees)

Front 21

Aggregation of amount in controversy

Back 21

only ok if you’re dealing w/one Π v. one Δ or joint tortfeasors; NO aggregation otherwise

Front 22

Amount in Controversy for equitable relief (injunctions)

Back 22

Two Tests (if either met, ok):
a. Plaintiff’s viewpoint: does the harmful action decrease the value of Π’s property, etc. by more than $75K?

b. Defendant’s viewpoint: would it cost Δ more than $75K to comply w/the injunction?

Front 23

Federal Question Cases

Back 23

complaint must show a right or interest founded substantially on federal law

must sue to enforce that federal right

Front 24

Exclusive FQ Jurisdiction

Back 24

patent infringement, federal antitrust, and securities claims

Front 25

Supplemental Jurisdiction

Back 25

Once in FC, can bring in other claims which the FC wouldn’t have an independent basis for SMJ.

Front 26

Supplemental jurisdiction test

Back 26

-arises from the same transaction or occurrence as the underlying claim.

Front 27

supplemental jurisdiction limitation

Back 27

- can never use where is would violate complete diversity in a case filed by the plaintiff

- this limitation does not apply to FQ cases or amount in controversy

Front 28

supplemental jurisdiction discretionary factors

Back 28

Court has discretion not to hear the supplemental claim if:
(1) the federal question is dismissed early in the proceedings;
(2) if the state law claim is complex, or
(3) state law issues would predominate

Front 29

removal

Back 29

- defendants (all must agree) to have a case filed in state court "removed" to federal court.
- If improper the fed. ct. "remands"

Front 30

procedure for removal

Back 30

1. Δ files notice of removal in FC, stating grounds for removal;
2. Then file notice in state court
3. If improper procedure: Π must move to remand to state court w/in 30 days of removal
4. If no SMJ, Π OR FC can (move to) remand at any time

Front 31

viii. Waiving Right to Remove

Back 31

1. Δ files permissive counterclaim in state court: probably waived
2. Δ files compulsory counterclaim: probably NOT waived

Front 32

f. Erie Doctrine (for diversity cases): always raise w/ a diversity situation

Back 32

a federal court, in a diversity case, is required to apply the substantive law of the state in which it is sitting, but must apply federal procedure rules

Front 33

Substantive law: factors to consider for federal court to apply state law

Back 33

Outcome determinative
Balance of interests
Avoid forum shopping

Front 34

venue

Back 34

in which Federal District Court can Π file suit

Front 35

VENUE - Rules

Back 35

in any case where there is SMJ, Π may lay venue in “any district where”:
i. All the defendants reside OR
1. Special Rule: if all the defendants are in different districts but they all reside in the same state, venue is proper in any district that one of them resides.
ii. A substantial part of the claim arose.

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d. Where does a Defendant Reside?

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i. Individuals: residence basically equals domicile, so usually same place as citizenship for diversity purposes
ii. Corporations: all districts where it is subject to PJ when the case is commenced.

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VENUE - land suits

Back 37

any action re ownership, possession, or injury to land (including trespass) must be filed in the district where the land lies.

Front 38

TRANSFER OF VENUE

Back 38

Sending a case from one federal district court to another federal district court.

can only transfer to a DC where the case could have been filed- court has PJ over Δ

Front 39

discretion to transfer to another FC

Back 39

1. Public factors: what law applies, what community should be burdened w/jury service; local controversy

2. Private factors: where witnesses and evidence are.

Front 40

when venue in original court is improper

Back 40

court may transfer OR dismiss, in the interests of justice.

Front 41

Service of Process

Back 41

(1) summons (formal court notice of suit and time for response) and
(2) a copy of the complaint
(3) by any non party who is at least 18 yrs old, w/in 120 days of filing the complaint

Front 42

Methods of Service - Personal Service

Back 42

give to Δ personally anywhere in the state

Front 43

Methods of Service - Substituted Service

Back 43

can be left with someone else if
(1) Δ’s usual abode AND
(2) serve someone of suitable age and discretion who resides there

Front 44

Methods of Service - Service on D Agent

Back 44

ok as long as receipt of service is w/in the scope of agency

Front 45

Methods of Service - Waiver by Mail

Back 45

process mailed to Δ by mail
1. Δ returns waiver form w/in 30 days

2. If no return by Δ, serve formally, and Δ may be required to pay cost of service if no good cause to not waive

Front 46

Pleadings

Back 46

documents setting forth claims and defenses

Front 47

Rule 11

Back 47

Requires attorney to sign all pleadings, written motions, and papers certifying that to the best of their knowledge and belief, after reasonable inquiry:
1. The paper is not for an improper purpose;
2. The legal contentions are warranted by law (or a non-frivolous argument for change);
3. The factual contentions and denials have evidentiary support (or are likely to after further investigation).

Front 48

Rule 11 - sanctions

Back 48

- purpose is to deter and not punish- generally non-monetary sanction
- Can be levied on attorney, party, or law firm

Front 49

Rule 11 - Motion for Violation

Back 49

served on other parties but NOT with court at first
1. Safe harbor of 21 days for party allegedly violating Rule 11 to withdraw the document or fix the problem
2. If no fixing, file with court

Front 50

Complaint

Back 50

principle pleading by Π; filing commences an action
1. Statement of SMJ
2. Short and plain statement of the claim showing entitled to relief
3. Demand for judgment (relief sought)

Front 51

Defendant's response to a complaint and time limit

Back 51

D must respond by filing either an answer or a motion within 21 days of service of process

Front 52

Definition of Motions

Back 52

Motions are requests for a court order

Can be brought by either party

Front 53

Rule 12b (1-7)

Back 53

a. 12b1: lack of SMJ
b. 12b2: lack of PJ
c. 12b3: improper venue
d. 12b4: insufficiency of process (dealing w/documents themselves)
e. 12b5: insufficient service of process
f. 12b6: failure to state a claim
g. 12b7: failure to join an indispensable party

These can be raised either by motion or answer.

Front 54

Waivable 12 b Motions

Back 54

2,3, 4, 5 must be put in the FIRST response by Δ or it is waived

Front 55

Non-Waivable 12b motions

Back 55

a. 6 and 7: can be raised at any time throughout trial
b. 1: NEVER waived; can be raised on appeal for 1st time

Front 56

Answer - Timing

Back 56

within 21 days after service of process
a. If Δ files rule 12 motions first: 14 days after court ruling

Front 57

What D does in the answer

Back 57

i. Admit
ii. Deny- Failure to Deny: can count as an admission on anything except damages
iii. Stating that Δ lacks sufficient info to admit or deny
(cannot do if info is public knowledge or in defendants control)

Raise affirmative defenses or else risk waiver of the defense

Front 58

Counter claims

Back 58

offensive claims against an opposing party
1. Filed w/Δ’s answer
2. Compulsory: same T/O - must be filed (answer) in the pending case or it is waived.

3. Permissive: not from T/O - can file in the pending case or in a separate case

Front 59

Crossclaims

Back 59

- An offensive claim against a co-party (D1 v. D2).
- It MUST arise from the same T/O.
-Permissive, NEVER compulsory.

Front 60

Amending the Pleadings

Back 60

i. Π has right to amend once within 21 days after D serves first rule 12 response
ii. Δ has right to amend once w/in 21 days of serving answer
iii. If no right to amend: seek leave of court, will be granted if: justice so requires; usually allowed if no undue delay or prejudice

Front 61

Amending Pleadings - Relation Back

Back 61

Amended pleadings relate back to the date the original complaint was filed (and S of L problem avoided), if it concerns the same conduct or T/O that is the subject of the original pleading

Front 62

Joinder of Parties
- Those who may join

Back 62

people who may be joined:
(1) arise from the same T/O AND
(2) raise at least one common question
THEN ASSESS SMJ.

Front 63

Necessary and Indespensible Parties - Joinder Not Feasible if

Back 63

1. No PJ over absentee
2. Joinder would destroy diversity
3. Absentee has a valid objection to venue

Front 64

If joinder is not feasible, the court may

Back 64

1. Proceed w/o the party OR dismiss the entire case
if dismiss, the party is indispensable

Front 65

Joinder of Parties - Impleader and timing

Back 65

claims involving a 3d party (TPD) brought in by a defending party
i. Claim is for: indemnity or contribution
ii. Right to implead w/in 14 days after serving answer; otherwise, need leave of court

Front 66

Class Action Requirements

Back 66

1. NUMEROSITY: Too numerous for practicable joinder
2. COMMONALITY: Some questions of law/fact in common to the class
3. TYPICALITY: Representative’s claims or defenses are typical of those of the class
4. ADEQUATE REPRESENATATION: Representative will fairly and adequately represent the class.

Front 67

Joinder of Parties - Class Action - Must fit w/in one of the following 3 types of cases

Back 67

1. Prejudice: class treatment necessary to avoid harm either to class members or to the party opposing the class.
2. Injunction/Declaratory Judgment: sought b/c class treated alike by the other party.
3. Damages: (1) common questions predominate; AND (2) class action the superior method to handle the dispute.

Front 68

Notice to the Class

Back 68

1. For damages-type ONLY, must notify (often by mail) all reasonably identifiable members, telling them:
a. That they can opt out; the binding effect of a judgment on all class members if they don't opt out; and that they can enter a separate appearance thru counsel
2. Cost of notice: representative

Front 69

Binding Effect of the Class Action Judgment

Back 69

all class members, except those who opt out (only available for damages-type class action)

Front 70

Settlement or Dismissal of Class Claims

Back 70

requires court approval
1. Court gives notice to get class members’ feedback
2. For damages-type case, members get 2nd chance to opt out.

Front 71

Class Actions - SMJ

Back 71

1. FQ invoked by Π-class: no problem
2. Diversity:
a. Look only to citizenship of the representative and the defendants
b. Amount in controversy: the representative’s claim exceeds $75K

Front 72

Discovery tools

Back 72

Depositions
Interrogatories
Requests to produce
Requests for Admissions
Physical or Mental Examinations

Front 73

Depositions

Back 73

- Depositions - Sworn oral statements responding to q.
- Can depose parties or non parties.
- Non party should be subpoenaed or not compelled to attend.

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Interrogatories

Back 74

- Questions in writing to another party. Not to non-party.

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Requests to produce

Back 75

Requests to another party, or non party if accompanied by a subpoena, requesting to produce documents or things for review

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Physical or Mental Examinations

Back 76

Only Available Through Court Order if it is actually in controversy (must show actual controversy and good cause)

Only for a party or a person in the party's control.

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Request for Admission

Back 77

A request by one party to another to admit the truth of any discoverable matters - cannot be to non-party.

Front 78

Parties sign substantive answers to discovery under oath

Back 78

Every discovery request and response is signed by attorney certifying (1) it's warranted; (2) no improper purpose and (3) not unduly burdensome.

Rule 11 does NOT apply to discovery.

Front 79

Duty to Supplement

Back 79

If a party learns that it's response is incomplete, it must supplement its response.

Front 80

Scope of Discovery

Back 80

can discover anything “relevant to a claim or defense"

Front 81

Relevant

Back 81

reasonably calculated to lead to the discovery of admissible evidence. BROADER than admissible.

Front 82

Privileged Matter

Back 82

Not discoverable.

Front 83

Work-product/Trial Prep Materials

Back 83

material prepared in anticipation of litigation generally protected from discovery

Front 84

Enforcement of Discovery Rules

Back 84

1. PROTECTIVE ORDER: Receiving party may seek protective order: if over-burdensome or calls for trade secrets, etc.

2. PARTIAL VIOLATION: Receiving party answers some questions and objects to others: if objections not upheld, a partial violation and light sanctions

3. TOTAL VIOLATION: Receiving party completely fails to respond: a total violation and expect heavy sanctions

Front 85

Seeking sanctions against a party requirement

Back 85

The party seeking sanctions must first certify that she tried in good faith to get the info w/out court involvement.

Front 86

Partial Violation result

Back 86

Can get an order compelling the party to answer + cost of bringing the motion.

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Total Violations

Back 87

Step 1 - rambo + costs

Front 88

RAMBO SANCTION CHOICES

Back 88

a. Establishment order: est. facts as true
b. Strike pleadings of violating party: as to issue re the discovery sought
c. Disallow evidence from violating party: as to issues re discovery sought
d. Dismiss Π’s case (if bad faith shown)
e. Enter default judgment against Δ (if bad faith shown)

Front 89

Sanction Against a Non-Party

Back 89

contempt for violating a court order or subpoena

Front 90

Voluntary Dismissal

Back 90

P. files a written notice of dismissal.

i. Π can re-file once w/o prejudice if do so before Δ serves an answer or moves for summary judgment.
1. If re-file, even in state court, and then Π w/draws again, dismissed w/prejudice.

Front 91

Failure to State a Claim

Back 91

i. Standard: court assumes all allegations are true and asks: if Π proved all she has alleged, will she win a judgment?
1. If no, court may dismiss and grant leave to amend.

ii. The same motion, made after the d. has answered is called Motion for Judgment on the Pleadings (same thing w/a different name)

Front 92

Summary Judgment

Back 92

i. Moving party must show:
1. No genuine issue of material fact in dispute AND
2. That he is entitled to judgment as a matter of law

iii. Court generally views evidence in light most favorable to nonmoving party

Front 93

Pretrial Conferences

Back 93

i. Final PT Conference: determine issues to be tried, evidence to be presented, witnesses, etc.

a. Amendment possible only to avoid manifest injustice OR, if evidence offered and not objected to, amend to conform w/evidence at trial.

Front 94

Jury decides what

Back 94

juries determine facts and are instructed on law

If case involves both (law and equity): divide the case up by issue; jury for the facts underlying the law issues only

Front 95

Motion for JMOL: Directed Verdict

Back 95

i. Timing: after the other side has been heard. So, Δ can move twice
ii. Standard: reasonable people couldn’t disagree re the result
1. Court generally views all evidence in the light most favorable to the nonmoving party

Front 96

Renewed Judgment for JMOL

Back 96

i. Timing: within 28 days after entry of judgment for opposing party
ii. Standard: reasonable people couldn’t disagree re the result.
iii. Prerequisite: must have moved for JMOL at the close of all the evidence; NOT just at some point before the jury verdict.

Front 97

Motion for a New Trial and grounds

Back 97

judgment entered, but errors require a new trial
i. Timing: w/in 28 days after judgment
ii. Grounds for re-trying the case:

1. Prejudicial (not harmless) error at trial makes judgment unfair (e.g., improper jury instruction or evidentiary ruling)
2. New evidence that could NOT have been discovered w/due diligence for the original trial
3. Prejudicial misconduct of a party, attorney, 3d party, or juror
4. Judgment is against weight of the evidence

Front 98

Appeal - Final Judgment Rule

Back 98

a. Final Judgment Rule: can only appeal from an ultimate decision by the trial court on the merits of the entire case.
i. File notice of appeal in trial court w/in 30 days of entry of judgment

Front 99

Res Judicata and Collateral Estoppel

Issue

Back 99

the preclusive effect of a former case on a subsequent case

Front 100

Res Judicata (definition)

Back 100

(claim preclusion): can only sue on a claim ONCE. Rule: Once a final judgment on the merits has been rendered on a particular cause of action, the π is barred by res judicata from trying the same cause of action in a later suit.

Front 101

Res Judicata (requirements)

Back 101

1. Case 1 and 2 brought by same claimant against same defendant
2. Case 1 ended in a valid final judgment on the merits.
3. Case 1 and case 2 asserted the same claim.
a. Remember all claims arising out of the same t/o are required to be brought together.

Front 102

Collateral Estoppel (definition and effect)

Back 102

(issue preclusion): precludes relitigation of a particular issue litigated and determined before.
i. Effect: issue deemed established in the 2d action, so it can’t be relitigated

Front 103

Collateral Estoppel (requirements)

Back 103

(1) case 1 ended in a valid final judgment on the merits;
(2) Same issue was actually litigated and determined in Case 1;
(3) the issue was essential to the judgement

Front 104

complete diversity

Back 104

- There is NO citizenship jurisdiction if any Π is the citizen of the same state as any Δ.
- Test for complete diversity is when the case is filed

Front 105

when is removal proper

Back 105

no later than 30 days after service of the first document that makes removal possible (usually service of process)

but in diversity cases, never more than 1 year when case was filed (even if a D that prevented diversity drops out)

Front 106

to where is removal proper

Back 106

only to the federal district embracing the state court in which the case was originally filed.

Front 107

diversity rule regarding removal

Back 107

if any Δ is a citizen of the forum state, NO removal

does not apply to removal based on FQ

Front 108

pleading sufficiency and exception

Back 108

must plead facts supporting a plausible claim

fraud, mistake, and special damages pleading must be with particularity or specificity

Front 109

variance

Back 109

- introduce evidence of a new claim at trial and other side does NOT object
- can later move to amend pleading so they conform to the evidence.
- If other party objects, evidence of new claim NOT admissible b/c it is at “variance w/the pleadings.”

Front 110

required disclosures

Back 110

1. initial disclosures
2. experts
3. pretrial disclosures

Front 111

pretrial mandatory disclosure

Back 111

no later than 30 days before trial, must give info about evidence, documents, and witnesses

Front 112

required initial disclosure

Back 112

within 14 days of rule 26(f) conference, must identify persons, electronically stored info, and documents that are likely to have discoverable info that the disclosing party will use to support its claims or defense

Front 113

discovery of witness statements

Back 113

discoverable if: opposing party shows
(1) substantial need; AND
(2) it is not otherwise discoverable.

Front 114

absolutely protected items

Back 114

mental impressions
opinions
conclusions
legal theories

- Can be generated by any representative of a party; not just lawyer

Front 115

iv. After joinder (impleader)

Back 115

1. Π can assert claim against TPD if arising from same T/O
2. TPD can assert claim against Π if arising from same T/O

v. SMJ: assess each claim on its own

Front 116

joinder procedure

Back 116

1. File 3d party complaint against TPD AND
2. Serve process (must have PJ and SMJ over TPD).

Front 117

joinder- intervention

Back 117

absentee wants to join pending lawsuit and comes in as either a plaintiff or defendant

Front 118

Joinder of Parties
- Necessary and Indispensable Parties (those who must join)

Back 118

Necessary and Indespensible Parties - joinder compelled if feasible.
i. Necessary: if absentee meets any of these tests, court may compel joinder:
1. W/o absentee, court can’t accord relief (worried a/t multiple suits)
2. Absentee’s interests would be harmed if she isn’t joined
3. Absentee claims an interest which subjects a party (usually Δ) to multiple obligations
4. NOT joint tortfeasors

Front 119

requirement to demand jury trial

Back 119

must demand in writing no later than 14 days after service of final pleading raising a jury-triable issue.

Front 120

how many peremptory strikes

Back 120

each side gets 3 peremptory strikes

Front 121

definition of a claim

Back 121

any right to relief arising from a T/O

Front 122

against whom can collateral estoppel be asserted

Back 122

only against someone who was a party to case 1

Front 123

by whom can collateral estoppel be asserted

Back 123

1. anyone in case 1
2. a defendant in case 2 if plaintiff had a full chance to litigate in case 1
3. a plaintiff in case 2 if it is fair