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34 Cards in this Set
- Front
- Back
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Subject Matter Jurisdiction - Federal Question -Federal district courts have original jurisdiction over all civil actions "arising under the Constitution, laws & treaties of the US, but a violation of a federal statute does not create a federal cause of action unless the statute also provides a remedy for the violation -A case arises under federal law if the federal question appears on a fair reading of a well-pleaded complaint -A D's use of federal law as the basis for her defense will not, by itself, create FQ Jx. |
Jurisdiction & Venue Subject Matter Jurisdiction - Federal Question |
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Subject Matter Jurisdiction -Federal Question -Diversity of Citizenship - parties must be from different states -Individual (citizen where domiciled, not necessarily where live) -Domicile - presence and intent to remain in that state -Corporation -Where incorporated -Principal place of business: muscle or nerve center; and -Amount in controversy must be more than $75K |
Jurisdiction & Venue Subject Matter Jurisdiction |
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Supplemental Jurisdiction -A federal district court may hear claims that they would not ordinarily have jx (e.g. state law claims that do not involve diversity jx) if those claims arise out of the same transaction or occurrence as a claim over which the court would have jx. Keys: 1) the same transaction or occurrence; or 2) a common nucleus of operative fact * New parties cannot defeat diversity - if adding a party would kick you out of supp. jx, you can't add that party |
Jurisdiction & Venue Supplemental Jurisdiction |
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Personal Jurisdiction -Systematic & continuous contact w/the forum (general jx) -Isolated contacts purposefully directed at the forum (specific jx) -A single contact can suffice to establish personal jx, but where jx is based on a single contact, the nature & quality of the contact is determinative -A D cannot reasonably anticipate out-of-state litigation unless she has purposefully availed herself of the privilege of conducting activities w/in the forum state, thus invoking the benefits & protections of its laws -FACTORS 1) the quantity of contacts w/the state - sheer # 2) the nature & quality of those contacts - continuous? 3) the connection of relationship b/w the contacts & the cause of action 4) the state's interest in providing the forum - does it benefit the state? |
Jurisdiction & Venue Personal Jurisdiction |
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Long Arm Statutes -States have enacted long arm statutes that allow courts to serve process & exercise jx over a party located outside the state -An individual state may choose to not grant its courts the full power that the state is Constitutionally permitted to exercise -A particular exercise of personal jx must not only be permitted by Constitutional doctrine, but be statutorily authorized as well - In analysis - the states need both |
Jurisdiction & Venue Long Arm Statutes |
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Service -A summons must be served w/a copy of the complaint w/in 120 days of filing by any person who is at least 18 & not a party -Service is proper if handed to the person, or; -Leaving it: -at the person's office w/a clerk or other person in charge or, if no one is charge, in a conspicuous place in the office; -at the person's dwelling or usual place of abode w/someone of suitable age & discretion who resides there, or; -Mailing it to the person's last know address - in which event service is complete upon mailing |
Jurisdiction & Venue Service |
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Venue A civil action may be brought in: 1) a judicial district in which defendant resides, if all D's are residents of the State in which the district is located; 2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or *3) if there is no district in which an action may otherwise be brought, any judicial district in which any D is subject to the court's personal jx w/respect to such action |
Jurisdiction & Venue Venue |
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Forum Non Conveniens A court may refuse to take jx over matters where there is a more appropriate forum available to the parties |
Jurisdiction & Venue |
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Personal Jurisdiction -The power of a court over the parties in the case. Before a court can exercise power over a party, the Constitution requires that the party have a sufficient nexus w/the forum in which the court sits either by: -consent -service on the D while in the jx or; -sufficient minimum contacts -Personal jx is generally waiveable, so if a party appears in a court w/out objecting to the court's lack of jx over it, that objection is forfeited |
Jurisdiction & Venue |
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Removal Part 1 -A case that was originally brought in state court may be removed to federal court if the P could have brought the case in federal court. The D in such a situation has a right to remove that case to federal court -Notice must be filed w/in 30 days of service of the initial pleading. If a case is not removeable, a notice of removal must be made w/in 30 days of service of the amended pleading -Each D receives a 30 day period to decide whether to remove to federal court. This is important w/respect to later-joined Ds |
Jurisdiction & Venue |
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Removal Part 2 -Remember, only the D can remove -When a civil action is removed all Ds who have been properly joined & served must join or consent to the removal of the action -A case may not be removed more than 1 year after commencement of the action, unless the district court finds that the P has acted in bad faith in order to prevent a D from removing the action |
Jurisdiction & Venue Removal Part 2 |
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Removal Part 3 -If removal is based on diversity, all of the Ds must be diverse from the P. Removal on the basis of diversity will not be granted if any of the Ds are citizens of the forum state -The D has the right to remove when the P is suing the D in a jx that is not the D's home state. However, if the P is suing the D in D's home state, D cannot remove |
Jurisdiction & Venue Removal Part 3 |
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Progression of a Federal Civil Action
-Service of Process -> Summons + Complaint -Pre-Answer motions to dismiss -Answer -Discovery -Summary Judgment -Trial -Motion for Judgment as a Matter of Law (JML) -Verdict + Renewed Motion for JML -Motion for New Trial -Judgment & Enforcement -Motion for Relief from a Final Judgment -Appeal |
Pretrial Procedures Progression of a Federal Civil Action |
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12(b) A party may assert the following defenses by motion: (1) lack of SMJ; (2) lack of Personal Jx; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19 - Compulsory gender -including lack of venue in a responsive pleading voids waiver |
Pretrial Procedures 12(b) Defenses by Motion |
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Waiving & Preserving Certain Defenses
A party waives most defenses listed in Rule 12 by omitting it from a motion or failing to include it in a responsive pleading or in an amendment, EXCEPT: SJM - 12(b)(1) - can be brought any time during litigation Failure to state a claim - 12(b)(6) - can be brought any time before the trial ends Failure to join - 12(b)(7) - can be brought any time before the trial ends |
Pretrial Procedures |
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Amended Pleadings -Amending as a Member of Course - a party may amend a pleading once as a matter of course: -w/in 21 days after serving it; or -if the pleading is one to which a responsive pleading is req'd, 21 days after service of a responsive pleading or 21 days after service of a motion -Time to Respons - Any req'd response to an amended pleading must be made w/in the time remaining to respond to the original pleading or w/in 14 days after service of the amended pleading, whichever is later |
Pretrial Procedures Amended Pleadings |
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Discovery Req'd Disclosures Witnesses A party must w/out awaiting a discovery request, provide to the other parties the name & known address & telephone # of each individual likely to have discoverable information - along w/the subjects of that information - that the disclosing party may use to support its claims or defenses -If you are in doubt, turn the material over, provide the witness |
Pretrial Procedures Discovery - Req'd Disclosures Witnesses |
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Discovery Req'd Disclosures Information Discoverable -A copy of all documents, electronically stored information, & tangible things that the disclosing party has in its possession, custody, or control & may use to support it claims or defenses Non Discoverable -Ordinarily, a party may not discover documents & tangible things that are prepared in anticipation of litigation or for trial unless the party shows that it has substantial need for the materials to prepare its case & cannot, w/out undue hardship, obtain their substantial equivalent by other means |
Pretrial Procedures Discovery Req'd Disclosures Information |
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Joinder of Claims -A claimant may consolidate all claims that they have against an individual who is already a party to the case -Claimants may bring new claims even if these new claims are not related to the claims they already stated -Joinder of claims requires that the court have jx over the subject matter of each of the new claims |
Pretrial Procedures Joinder of Claims |
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Joinder of Parties COMPULSORY COUNTERCLAIM -A pleading must state as a counterclaim any claim that the pleader has against an opposing party if the claim arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; & does not require adding another party over whom the court cannot acquire jx PERMISSIVE COUNTERCLAIM -A pleading may state as a counterclaim against an opposing party any claim that is not compulsory |
Pretrial Procedures Joinder of Parties |
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Class Action (CANT) One or more members of a class may sue or be sued as representative parties on behalf of all members only if: 1) there are questions of law or fact COMMON to the class; 2) the representative parties will fairly & ADEQUATELY protect the interests of the class 3) the class s NUMEROUS that joinder of all members is impracticable 4) the claims or defenses of the representative parties are TYPICAL of the claims or defenses of the class |
Pretrial Procedures Class Action |
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Sanctions - "Rule 11" Limitations on Monetary Sanctions The court must not impose a monetary sanction unless it first issues a show-cause order before voluntary dismissal or settlement of the claims |
Pretrial Procedures |
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Depositions -At a deposition, an att'y is req'd to object to those defects that are immediately curable. Such defects include procedural matters, such as the manner of taking a depositions & the form of questions or answers -Objections are necessary when a question is leading, vague or unintelligible. Failure to timely object serves as a waiver -Counsel can instruct a witness to refuse to answer ONLY IF: -the answer would be privileged, or -if there is an order limiting the scope of the deposition |
Pretrial Procedures Depositions |
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Pleadings - Generally A claim for relief must contain: -A short & plain statement of the grounds for the court's jx; -A short & plain statement of the claim showing that the pleader is entitled to relief; and -A demand for the relief sought, which may include relief in the alternative or different type of relief |
Motions Pleadings - Generally |
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Pleadings - Specifically -while legal conclusions can provide the framework of a complaint, they must be supported by factual allegations -when there are well-pleaded factual allegations, a court should assume their veracity & then determine whether they plausibly give rise to entitlement to relief -When pleading fraud the complaint must detail particularities |
Motions Pleadings - Specifically |
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Pleadings - SPECIAL DAMAGES If an item of special damage is claimed, it must be specifically stated as the P will not otherwise be permitted to go into evidence of it at the trial, b/c the D can't also be prepared to answer it |
Motions Pleadings - SPECIAL DAMAGES |
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12(b)(6) - Failure to State A Claim Upon Which Relief Can Be Granted -How lawsuits w/insufficient legal theories are dismissed pre-trial -While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a P's obligation to provide the grounds of his entitlement to relief requires more than labels & conclusions -A formalistic recitation of the elements of a cause of action will not do |
Motions 12(b)(6) - Failure to State A Claim Upon Which Relief Can Be Granted |
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Summary Judgment -Who makes it? -When is it made? -What is its effect? -What is the standard? -The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact & the movant is entitled to JML |
Motions Summary Judgment |
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Dismissal -P may dismiss an action w/out a court order by filing a notice of dismissal b4 the opposing party serves either an answer or a motion for SJ -Unless the notice states otherwise, the dismissal is w/out prejudice. However, if the P previously dismissed any federal or state court action based on or including the same, a notice of dismissal operates as an adjudication on the merits |
Motions |
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Preemptory Challenge The equal protection clause precludes jurors to be stricken solely on account of their race or gender |
Motions Preemptory Challenge |
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Remittur (verdict too high) -A D may seek a new trial o damages; remittur -A new trial on the claim the damages are excessive is granted only where the award is so great as to shock the conscience of the court & to create the impression that the jury was motivated by passion, corruption or prejudice, or has misconceived or misconstrued the facts or the law |
Motions Remittur (verdict too high) |
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FRCP 59 - Motion for New Trial -The court may, on motion, grant a new trial after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court -Timing. A motion for a new trial must be filed no later than 28 days after the entry of judgment |
Motions FRCP 59 - Motion for New Trial |
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Additur (verdict too low) -The trial court may grant a new trial where the verdict is clearly wrong or w/out credible evidence to support it. A judge is not permitted to substitute his judgment for that of the jury merely b/c he would have reached a different result. -A motion for a new trial on damages or additur is founded on a claim that the jury verdict is inadequate as a matter of law. Where the evidence overwhelmingly favored the P on the issue of liability (fault), the sole issue before the court is whether to grant P a new trial on the issue of damages -Not permitted in federal courts - 7th Amendment violation |
Motions Additur (verdict too low) |
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FRCP 60 - Relief from Judgment -A court may relieve a party from a final judgment, order or proceeding for the following reasons; mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence that, w/reasonable diligence, could not have been discovered in time to move for a new trial under fraud, misrepresentation, or misconduct by an opposing party -Timing - must be made w/in a reasonable time - and for reasons no more than a year after the entry of the judgment or order of the date of the proceeding |
Motions |
