Civil Procedure Mee 2013

Front 1

Personal Jurisdiction

Back 1

Constitution requires (i) minimum contacts with the forum state (purposeful availment, know/anticipate court) and (ii) fair (contact related to dispute, systematic activity, or factors like convenience and interests), and (iii) notice (certified mail or best practical means of notice available).

Statutes require presence, domicile, consent, or long arm statute.

Front 2

Diversity Jurisdiction
(SMJ)

Back 2

(1) The case is between citizens of different states (citizen = permanent home for individual, incorporated or principal place of business for corporation) and

(2) the amount in controversy exceeds $75K (met unless clear to a legal certainty that cannot recover more than $75K)

Supplemental Jurisdiction occurs for events with the same nucleus of operative facts. No amount in controversy req. but must still meet complete diversity.

Front 3

Erie Doctrine

Back 3

Federal court in diversity case will apply federal procedural law, and state substantive law where it sits (or where it originally sat/came form).

If conflict between state and federal law, if federal law is arguably procedural (outcome determination, deterrence of forum shopping), apply federal law.

Front 4

Federal Question Jurisdiction
(SMJ)

Back 4

The district courts have original jurisdiction over disputes arising under the Constitution, laws, or treaties of the United States. The federal question must appear as a part of the π’s cause of action (well pleaded complaint).

Supplemental (Pendant) jurisdiction occurs over state law claims arising out of the same nucleus of operative facts.

Front 5

Venue

Back 5

The district is proper if it is where any ∆ resides if all reside in that state, or where a substantial part of the events giving rise to the claim occurred.

Venue is waived unless timely objection.

Front 6

Removal

Back 6

Is proper if the claim meets the requirements for diversity or fed Q. Goes to federal district embracing the state court where it was filed.

File a notice with fed court (i) for fed Q: within 30 days of becoming removable (or service on ∆) (ii) for diversity: within 1 year of commencement of action.

Federal Ct. will abstain if unclear state law or state administrative regulatory plan.

Front 7

Complaint

Back 7

Federal courts follow notice pleadings, must state facts supporting a “plausible” claim.

State grounds for federal jurisdiction, short statement of claim showing pleader is entitled to relief, and a demand for relief.

Front 8

Pre-Answer Motion

Back 8

12(b) (i) lack of SMJ (ii) lack of PJ (iii) improper venue (iv) insufficiency of process (v) insufficiency of service of process (vi) failure to state a claim upon which relief can be granted (viii) failure to join an indispensable party. (i) anytime until appeals over. (ii-v) first motion or answer. (vi-vii) anytime at or before trial.

12(e) More definite statement if pleading is vague.
12(f) move to strike insufficient defense, redundant/immaterial/scandalous matter

Front 9

Answer

Back 9

Must admit or deny each averment of the complaint. Generally, within 21 days.

If service waived, within 60 days.
If rule 12 motion, 14 days of denial or postponement of the motion.

Front 10

Counterclaim

Back 10

Compulsory if arises out of same tran. or occurrence. Fed will have jurisdiction.

Permisive: must meet jurisdictional requirements

Front 11

Reply

Back 11

Reply by π to ∆’s answer if ordered by court.

Front 12

Amendment

Back 12

Once within 21 days of its service, 12(b) motion, or answer. Relates back to original date if same events. If new party, relates back only if new party had sufficient notice to avoid prejudice and knew that would have been named originally but for mistake.

Front 13

Joinder

Back 13

Compulsory: Should be joined (complete relief cannot be accorded, or absence would impair or impeded his ability to protect his interest, or inconsistent obligations), Can be joined PJ and wont destroy SMJ (diversity).

Permissive: claim arising out of same series of occurrences or transactions and common question of law or fact.

Front 14

Class Action

Back 14

Numerosity, Commonality, Typicality, Adequate representation.

Prejudice Class, Injunction or Declaratory Judgment, Damages class (must have common questions predominate over individual questions and class action is superior method to handle the dispute).

Front 15

CAFA

Back 15

Initial Disclosure: names, evidence, damages, insurance agreements.
Expert Testimony
Pre-trial Disclosures

In general, discovery may be had of any non-privileged information that is relevant to any party’s claim or defense (need not be admissible itself).

Front 16

Disclosure & Discovery

Back 16

Initial Disclosure: names, evidence, damages, insurance agreements.
Expert Testimony
Pre-trial Disclosures

In general, discovery may be had of any non-privileged information that is relevant to any party’s claim or defense (need not be admissible itself).

Front 17

Devices Terminating Case

Back 17

M for J on the Pleadings: moving party entitled to judgment on face of pleadings.
SJ: No genuine dispute of material fact and moving party entitled to J as matter of Law. Anytime until 30 days after close of discovery.
M for J as a matter of Law (Directed Verdict): Evidence viewed in light most favorable to motion’s opponent leads reasonable person to conclusion in favor of moving party.

Front 18

General/Specific Jurisdiction

Back 18

GJ: The ∆ has systematic and continuous contact with the forum such that it is at home in the forum.

SJ: The claim is related to the ∆’s contacts with the forum

Front 19

Appeal

Back 19

Appeal can only be from a final judgment (does the trial court have anything left to decide?)

Interlocutory Orders: granting/modifying injunctions.
Interlocutory Appeals Act: trial judge certifies controlling issue and ct. of appeals agrees to hear it.
Order granting/denying certification of class.

Front 20

Preclusion

Back 20

Claim: Valid final judgment, on the merits, same parties, same claim (minority says different personal/property rights).

Issue Preclusion: Valid final judgment, on the merits, issue was litigated and essential, can only be precluded against someone who was a party to the first case. Mutual: both parties to first suit. Nonmutual: one party was not in first suit. YES if defensive (one using not party in suit 1, and is ∆ in suit 2) NO in OFFENSIVE unless FAIR (one using it not party in suit 1, is π in suit 2). ***

Front 21

Discovery

Back 21

May discover anything reasonably calculated to lead to the discovery of admissible evidence (broader than admissibility test of evidence for trial).

Deposition: of anyone.
Interrogatories: of party only.
Request to produce: party or non party if accompanied by subpoena.
Medical Examination: by court order only.
Request for admission: of party only.

Front 22

Work Product

Back 22

Any material prepared in anticipation of litigation by party or any representative of a party.

May get if substantial need and not otherwise available.

Untouchable: mental impressions, opinions, conclusions, legal theories.

Front 23

Third Party ∆s

Back 23

Impleader: ∆ brings in someone new because TPD may owe indemnity or contribution to the ∆. Still need SMJ.

Intervention: Choose to enter if interests in case, or common question if Court allows.