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68 Cards in this Set

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CIVIL PROCEDURE

WHAT ARE THE 8 PRELIMINARY QUESTIONS YOU WANT TO ASK?
1) Does the court have subject matter jursidction over the action and are notice and venue requirements met?

2)Are there any pleading issues raised?

3) Are the claims/parties properly joined for trial? (joinder of claims/parties; class action; intervention; interpleader; impleader)

4)Discovery Issues?

5)Pretrial Conference

6)Trial (Right to Jury Trial; Jury Selection; Verdicts)

7)Trial and Post-Trial Motions

8)Final Judgment: Res Judicata; Collateral Estoppel; Full Faith & Credit
I. Jurisdiction, Notice and Venue

What must a court have before it hears a case?
Before a court hears a case, it must have subject matter jusisdiction over the cause of action & notice & venue requirements must be met.
SUBJECT MATTER JURISDICTION
Federal court requires either

1) Federal Question-is a federal question embedded in the cause of action? The fed cts have original jurisdiction of all civil actions arising out of the constitution, laws or traties of US

2)Diversity-
a)Diversity of citizenship (domicile of all plaintiffs must differ from all defendants) OR
-diversity is determined at the time action commenced
-corp is a citizen of place of incorp. and principal place of business. Look to domicile and intention to remain
-Partnership/assocation are treated as indidividuals
-class actions-only citizenship of named representatives in class considered
-representative actions-rep's citizenship considered, not person represented.

b)Amount in controversy (more than $75K PER plaintiff except Federal Interpleader Act more than $500)
-Good faith required
-A single Plaintiff may AGGREGATE all claims against a single defendant. But two or more plaintiffs, even in a class action suit, cannot aggregate their claims. Each plaintiffs claim must exceed $75K. Nor may a plaintiff aggregate claims against multiple Ds.
PENDANT OR SUPPLEMENTAL JURISDICTION
-A state claim may be joined with a substantial federal claim if both claims derive from a common nucleus of operative facts.
-A pendant party claim (e.g., a claim by a party as to whom the only claim asserted does not meet fed. SMJ) may be heard by the ct if it is transactionally related to a claim over which there is jurisd. and that claim is not based solely on diversity of jurisd.
ANCILLARY OR SUPPLEMENTAL JURISDICTION
If court has juris. over prinicpal claims, it can hear anciallary matters (counter claims) if fed claim is substnatial and fed and state claim arise from the same transaction or occurence.
REMOVAL
D may remove case from state to fed court if there is a fed question OR diversity juris. existed when action filed AND juris. was proper in state court where action was brought. If a separate or independent claim is joined with nonremoval claim, the entire case may be removed or remanded.
VENUE
Determines which of the courts having SMJ the case b tried.
Venue with respect to diversity cases
Venue is proper where any D resides if all Ds reside in the same state OR where a substantial part of acts took place OR where all Ds are subject to personal jurisdiction when case commenced.
Venue with respect to Federal Question cases
Venue is proper where any D resides so long as all Ds reside in same state OR where substantial part of acts took place OR if requirement met, then in district where any D may be found.

-if D resides in different districts in one state, venue is proper in either
-Corporation-where corp licensed to do business or where it is doing business
-Action from state court goes directly to fed ct of district in which state action was pending
LOCATION ACTION RULE:
Where action involves title or injury to real property, actio must be tried in forum where property is located.
LOCATION ACTION RULE NOT APPLICABLE
Location action rule not applicable transitory actions (e.g. nuisance, specific performance of land K).
Ct transfer:
Court can transfer case where venue is improper ONLY to a court where the action might have originally been brought, and where personal jurisdiction and venue are proper. Test: Interest of Justice.
PERSONAL JURSIDCTION
1) In personam-gives the ct power over D, enforceable in other states
2) in rem-gives the ct power over property located in the state
3) Quasi in rem-gives the ct power to determine the rights of particular persons respecting specific property w/i the ct's control. Minimum contacts are required if the dispute does not involve the attached property.
Modern Test (Peronal Jurisdition)
D must have certain minimum contacts w/ forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice (International Shoe)
What is the statutory authority for the modern test?
Long Arm Statutes
-sufficient minimum contacts
What constitutes sufficient minimum contacts?
CAPFIBLIMFEW

-Cause of action-where did the cause of action arise
-Activities-scrutinize these activities in forum state
-Purposeful Availment-Had D purposefully availed itself of the benefits and protections of forum's laws?
-foreseeability-Could D forsee or expect to defend in forum state?
Initiate-Did D initiate contact with forum state?
What consitutes fair play and substantial justice?
-Burden of parties-if Juris. is asserted what would be the burden on the parties (economic and time burdens; relative burdens on plaintiff and def)
-Law-what forum's law will be applied to this case?
Interest of state-in providing a forum for its residents and protecting health and safety concerns
-Multiplicity of suits-CoA result in total resolution of suit?
-Forum-Alternative forum available? Fair and convenient?
-Evidence-Where is the bulk of the evidence?
-Witnesses-where are the witnesses and are they available at trial?
Defenses challengeing personal jurisdiction
1)Speical appearance-where D appears to challenge jurisdiction w/o waiving it. If D loses he can appeal or fight the case on its merits, but he cannot w/ draw, take a dafault judgment and collaterally attack the jurisdiction of the ct in a later suit.
2)General Appearance-Where D appears in ct, waiving all jurisdictional objections.
3)No appearance-where D allows entry of default against him and in the second proceeding to enforce the judgment challenges the jurisdiction of the first ct. while collateral attack permits D to avoid the cost of defending in a distant forum, if his attack fails, he is bound and cannot fight judgment on the merits of the case.
4) Limited Appearance-in quasi-in-rem cases, D's liability by the property attached by Plaintiff. Somce courts allow D to make a limited apperance to defend the case on its merits, binding the property if he loses. Other cts hold that defending, D is subject to personal juris. & can be held liable for the entire judgment.
CHOICE OF LAW?
(What law applies to the case?)
1) State law in Fed Cts?
-Under Erie doctrine fed cts must apply state statutes in case law to non federal causes and defenses (e.g. state claims)but may apply FED PROCEDURAL RULES, even if these rules would affect the outcome of litigation. If there is a question as to whether conflict is sustantive or procedural use BYRD balancing test:
-How strong is state interest?
-Federal interest?
-Different Results?
-forum shopping?
-Impact on federalism?
2)Federal Common Law in Fed Ct:applies interpretation of federal constitution, statutes, rules whether the case is in federal or state court and applies where there is a fed power over the substance of the action even if no statute has been enacted.
3)Fed review of state ct decisions involving fed law: USSC can review any state court decision involving fed law, provided all state remedies are exhausted.
II. PLEADING

Two types, what are they?
1)Fact
2)Notice
What is fact?
Fact requires statement of facts setting forth the cause of action or defense in ordinary and concise language.
What is notice?
Short and plain statement of the claim showing that pleader is entitled to relief.
What is the general rule regarding pleadings?
Pleadings must be made in good faith and certified and signed by an attorney.
What are the requirements that a complaint must meet?
Plaintiff must be a real party in interest, have capacity and standing to sue; must set forth at least one cause of action, special damages, prayer for relief, SMJ in federal court.
What are the methods for challenging a complaint?
JT PPICSAS D=

1)insufficiency of Process
2)judgment on the Pleadings
3)failure to join an Indispensable party
4)failure to state a Claim
5)motion for Summary judgment where no triable issue of material fact exists as a matter of law;
6)motion to Strike irrelevant, impertinent, scandalous allegations;
7)motion for more Definite statement.

=these motions cannot be waived.
What are the requirements for an answer to a complaint?
D may deny plaintiff's allegations by asserting general, specific, qualified, denial based on information/belief. Defective denials are deemed admissions. D may also assert affirmative defenses and counterclaims.
When can amendments be made to pleadings?
Pleadings can usually be amended once and amendment is liberally allowed if no prejudice.
What is the relation back doctrine and how is it related to amending pleadings?
If amended complaint arose out of the SAME TRANSACTION OR OCCURRENCE as original complaint it relates back to the filing date of the original claim and any statute of limitation (SOL) problem is barred.
Can a new claim be added if it relates to same transaction or occurrence?
Yes
Can new parties be added? And if so, under what circumstances?
New parties can be added if given STRICT or IMPLIED NOTICE of action and new parties knew or should have known suit would be brought but for mistake concerning identity of true party. A "mistake" occurs where misnomer, excusable neglect, where D misled plaintiff, or where there is an identity of interest between Defendant and plaintiff.
Where unpleaded issues arise at trial, are amendments allowed if no surprise or prejudice would result?
Yes, under Variance.
III JOINDER OF PARTIES AND CLAIMS

Joinder of Parties

What three ways are utilized to join parties?
1) Permissive-party which has some interest in cause of action and joinder is convenient may be joined if claim arises out of STD and common ?s of fact or law exist and all jurs. req. met.

2)Necessary-available party whose joinder is desirable to enable ct to grant complete relief or would avoid risk that party would be impaired in her ability to protect interests SHALL be joined if available (provided that SMJ/Venue not destroyed) TEST: Identical facts & Law

3)Indispensible-unavailable party whose joinder is necessary to render an effective judgment and court has no SMJ w/o party. TEST: interest of plaintiff and defendant's interest; interest of unnamed parties; judicial economy; adequacy of judgment in party's absence.
Claims

How are claims joined?
By plaintiff-may join all claims he has v. Defendant regardless of nature of claim or relief sought. HOWEVER, in code juris., joinder restricted to claims similar in type arising out of Same transaction or occurrence.

By D-Permissive-counterclaims permitted (but in fed ct, counter claim must be supported by independent SMJ).

Compulsory-If counterclaim is same transaction/occurrence of plaintiffs, failure to raise it bars it!

Cross-claim-if same transaction/occurrence, D can sue Co-D
Class Actions

How are members of class actions joined?
Certification requirements:

CENCTAB

C=Roughly definable Class which plaintiff is a member
E=Judicial Economy Served
N=Potential Ps too Numerous for joinder
C=Claims have common legal theory or arise of STO
T=Claim of named plaintiff must be Typical of the class
A=Named parties must Adequately represent class
B=Action must fall within one of three categories of Fed Rule 23(b)
(b1): individual suits would result in conflicting adjudications or would hurt interest of non-parties
(b2) injunctive/declatory relief necessarily applies to entire class (civil rts, employment discrim, or environmental cases)
(b3) on balance, class suit is fairest and most efficient way to adjudicate controversy. Common questions must predominate over individual questions.
What are the notice requirements with respect to class actions?
Notice Requirements: in (b1) & (b2) suits notification to class members of suit is not mandatory but court has discretion; in (b3) suit relief is limited to those class members actually notified who did not opt out of the suit. Plaintiff must pay for notice. Mail is required if address is known or ascertainable; if not, publication will suffice.
Will a potential member of a class action suit be permitted to join as an intervenor?
Yes. The broad rule is that intervention is allowed if intervenor has interest in deicsion.
What is the federal rule regarding intervention?
1)Permissive intervenor: must have conditional statutory right or question of fact or law commont to claim and SMJ & Venue met

2)Intervenor As of Right: allowed where unconditional statutory right OR intevenor must have interest in property or transactions which are the subject of litigation, intevenors interest will be impaired, is not adequately represented by existing party; ancillary or supplemental juris. will be used, no independent SMJ required, except in diversity cases.
What is interpleader and how does it work?

General and Federal Rules
General rule: Stakeholder is facing adverse, competing and overlapping claims;" (not D) stakeholder must be disinterested in outcome of suit; stakeholder not independently liable to either claimant or other claims.

Federal Rule: Stakeholder facing adverse, competing, overlapping claims, multiple claims or vexatious litigation, ct. must have PJ or Ds.
What is the Federal Interpleader Act?
debt deposited w/ ct; minimal diversity required (one claimant must differ from others) & $500 in controversy; nationwide service of process and venue proper where claimant resides; easy to obtain state ct. injunctions.
What is Rule 22?
Debt not deposited w/ ct; Federal question or total diverfsity with more than $75K required; regular service of process and venue required; hard to get injunctions v. state ct.
What is Impleader?
D can implead non-party whom D might be entitled to indemnification from. Ancillary juris. applies.
IV. DISCOVERY

WHAT ARE THE DISOVERY DEVICES?
DADIES
Depositions (written or oral)
Admissions (of facts)
Documents (& other items if good cause)
Interrogatories
Examination (mental or physical)
Subpoena (duces tecum)
What is the scope/limitations of discovery?
-Discovery must be relevant
-Privileged matters are not discoverable;
-Attorney work product normally not discoverable unless substantial need; unavailability and prejudice shown.
-Oppressive discovery may be curtailed by protective orders.
What does Rule 26 require with repsect to discovery?
Rule 26 discovery requires disclosure of witness information, tangible evidence, damage computations, insurance agreements, expert W testimony and W list.
What are the sanctions for non-compliance?
contempt, pleadings striken, default, adverse finding of fact, costs.
V. THE PRETRIAL CONFERENCE:
The trial judge may order parties to appear for a pretrial conference to familiarize the litigants & the ct. w/ the issues involved, determine the possibility of a settlement and reduce the danger of surprise at trial.
VI. TRIAL
A. ADJUDICATIONS W/O TRIAL
B. RIGHT TO A JURY TRIAL
C. JURY SELECTION
D. JURY VERDICTS
A)How are adjudications made without trial?
1)motions to dismiss JTPPICS;
2)voluntary dismissal
3)involuntary dismissal
4)default
B)Right to a Jury Trial
-7th Amendment in suits at common law, right of jury trial shall be preserved. TEST: Is there a right to a jury trial as to a particular case?
-Determine what the cause of action are and whether as a tactical concern, does plaintiff/defendant want a jury trial on each issue.
-determine whether cause of action is being brought in state or federal court
What if a right to jury trial is being brought in state court?
If state court, then 7th amendment doesn't apply. However, most states have provisions similar to 7th amendment and this determines the relation back doctrine.
What if a right to a jury trial is being brought in federal court?
Then jury trials are favored. In diversity cases, right to a jury trial is determined by federal standards

-relate back to 1791 (determine whether there was a rt to a jury trial under the constitution)
What if there are both equitable and legal claims to consider?
Legal Claims=jury
Equitable Claims = judge/magistrate

-If you have both legal and equitable claims, the trial judge must try the legal claims first, so as to preserve the right to a jury trial as to those claims. Only if the party asserting the equitable claims would be irreparably harmed by having these claims delayed until after the legal claims are heard, will the equitable claims be heard first.
What if the plaintiff waived a right to a trial by jury by waiving the demand?
then the right has been waived
C. Jury Selection
Due Process insures that method used to select a jury be fair and impartial, and equal protection demands that the jury be a cross-section of the community, and that there is no systematic discrimination against any group. Attorney may question a juror concerning possible bias and may challenge juror for cause or exercise a premptory challenge.
D. Jury Verdicts
General verdict, special verdict, or general verdict with interrogatories.
VII. TRIAL AND POST-TRIAL MOTIONS:
A. NONSUIT
B. MOTION FOR JUDGMENT AS A MATTER OF LAW
C. RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
D. MOTION FOR NEW TRIAL
E. MOTION FOR RELIEF FROM JUDGMENT.
A. NONSUIT
Motion is granted after plaintiff presents her case and fails to show a rt. to relief.
B. MOTION FOR JUDGMENT AS A MATTER OF LAW
Motion is granted if there is no evidence on which the jury could find for non-moving party.
C. RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
Motion is granted after verdict if there is no evidence on which the jury could find for no-moving party. Court must find that as a matter of law, jury's use of the evidence was unreasonable under the MAJ view, this motion can only be made if directed verdict motion was made.

1) Evidence is considered in the light most favorable to party against whom relief is sought;
2) Evidence must be such that resonable persons cannot differ as to which party can prevail
3)Court is not weighing evidence
D. MOTION FOR NEW TRIAL
Motion is granted if court feels injustice has occurred and can grant modification of the verdict in whole or in part. Ct. may conditionally grant a new trial:
1)Remittitur-plaintiff agrees to LESSER damages or court will grant a new trial;
2)additur-D agrees to greater damages or court will grant a new trial. (NOT ALLOWED IN FED!)
E. MOTION FOR RELIEF FROM JUDGMENT
Grounds for reopening case in ct's discretion after judgment. Mistake, inadvertence, surprise, excusable neglect, newly discovered evidence or fraud.
VIII FINAL JUDGMENT
Party has a right to one appeal from a final judgment (e.g. one which is determinative of the entire case in all respects) unless waived.
A. EFFECT OF FINAL JUDGMENT ON FUTURE CASES
"Res Judicata & Collateral Estoppel prevent relitigation of some cause of action between same parties or same issue in different cause of action between same parties to promote judicial economy."
What does Res Judicata Mean?
"WE ALREADY DECIDED THE CAUSE OF ACTION"

TEST:
1)Same PRIMARY rights involved?
2)Same EVIDENCE?
3)Same TRANSACTION or occurrence?
4)JUDGMENT on the merits?
What does Collateral Estoppel Mean?
"WE ALREADY DECIDED THE ISSUE!" Prevents relitigation of fact issue previuosly decided.

TEST:
1. Issue NECESSARY to first action?
2. IDENTICAL issue?
3. Actually LITIGATED?
Who can use collateral estoppel?
D can always use as a shield, since CE is to protect D but plaintiff cannot use as sword, unless plaintiff could not hav joined earlier action, it was not foreseeable at the time of the first suit that other suits might arise; judgment asserted by plaintiff consistent with prior Js, full and fair adjudication.
Who's bound by collateral estoppel and Res Judicata?
RJ and CE apply to parties, non-parties but mutality (i.e. opportunity & incentive to litigate issue) was once required, and now non-party can use judgment defensively against someone who was party to first action.
FULL FAITH AND CREDIT CLAUSE
The full faith and credit clause requires that public acts, records, and judicial proceedings of sister statesare honored. While this clause only applies to states, Fed statute compels recognition of Fed Court judgments. Only applies to final judgments, i.e. judgments on "merits" involving substance of plaintiff's claim (not jurisdiction, venue, capacity to sue, misjoinder or dismissal w/o prejudice) and default and consent judgments and judgments not subject to collateral attack. Recognition of foreign judgments is voluntary unless required by treaty.