Federal Civil Procedure Mee

Front 1

Two primary jurisdictional ways federal courts can assert jurisdiction on a matter.

Back 1

Federal courts are courts of limited jurisdiction. In order to have jurisdiction it must be based on complete diversity or federal question.

Front 2

What is the rule for diversity

Back 2

(1) No single plaintiff is a citizen of the same state as any defendant; and (2) the amount in controversy exceed $75,000.

Front 3

Where are corporations domiciled?

Back 3

In the state they are incorporated and their principal place of business (i.e., headquarters).

Front 4

What is the test for permissive joinder of a person?

Back 4

(1) same transaction or occurrence; and (2) common issues of law or fact.

Front 5

What is the test for supplemental jurisdiction over a claim?

Back 5

Common nucleus of operative facts. (plaintiffs cannot bring in non diverse parties but if diverse do not need to meet $75,000)

Front 6

What is the test as to compulsory joinder (necessary and indispensable party)

Back 6

(1) should the absentee be joined (complete relied not possible or decision will impair ability to protect interest);
(2) can the absentee be joined (personal jurisdiction, diversity, venue); and
(3) if the absentee cannot be joined, should the case be dismissed?

Front 7

Requirements for removal

Back 7

(1) all defendants agreeing to file a notice of removal within 30 days of service; and (2) no single defendant is domiciled in the state where the action was filed.

Front 8

What is the Erie Doctrine?

Back 8

When there is a conflict between federal and state the law the federal court applies state substantive law (alter the outcome) and federal procedural law.

Front 9

What is personal jurisdiction and how is it established?

Back 9

The power of the court over the defendant's person or property.

(1) the law of the forum state grants personal jurisdiction (presence, consent, long-arm statute); and
(2) that law is constitutional as applied to the person minimum contacts and traditional notions of fair play and substantial justice--purposeful availment).

Front 10

Three types of presence in the state

Back 10

(1) actual;
(2) domicile; and
(3) regular systematic and continuous business.

Front 11

When is process proper?

Back 11

(1) the method is proper under the federal rules; and
(2) the method is constitutional.

Front 12

Methods of process under federal rules

Back 12

(AWASP)
(1) Abode service;
(2) waiver;
(3) agent service;
(4) state method; or
(5) personal service.

Front 13

What is the Constitutional limitation on service?

Back 13

(reasonable calculated aprise RCA) It must be reasonably calculated to apprise the parties of the litigation.

Front 14

Under the Federal Rules when is venue proper?

Back 14

(1) where any defendant resides if all defendants reside in the same state; or
(2) a substantial amount of the claim arose.

Front 15

What responsive motions are waived unless in 1st responsive pleading?

Back 15

(1) pers juris.;
(2) venue;
(3) service of process;
(4) affirmative defenses must also be present.

First three alternatively may be raised in a motion prior to responsive pleading.

Front 16

What is the general rule as to amending pleadings?

Back 16

The plaintiff may amend once as a right within 21 days of service. Afterwards the court shall grant a motion to amend freely.

Front 17

What is the rule as to relation back of new claims (amended pleadings)

Back 17

Derive from same transaction or occurrence.

Front 18

what is the rule for amending to add new parties in relation to relation back?

Back 18

(1) derives from same transaction or occurrence; and
(2) the brand new party acquired knowledge within 120 days of earlier filed claim that but for the mistake in name it would have been sued.

Front 19

Test for compulsory counterclaim

Back 19

Derives from same transaction or occurrence (if doesn't then permissive)

Front 20

Impleader

Back 20

Defendant's may implead a third party that may be liable for all or part of the claim (i.e., contribution or indemnity).

Front 21

Interpleader

Back 21

Holder of a common fund may file as plaintiff and join in all rival claimants. (e.g., insurance company that holds money parties are fighting about)

Front 22

Intervention

Back 22

As of right when interests will be adversely affected.

Permissive gives discretion to court in there is commonality of issue.

Front 23

Class actions

Back 23

(1) commonality; (2) adequacy; (3) numerosity; and (4) typicality (claims typical of class)

Front 24

Automatic discovery

Back 24

(1) prompt disclosure; (2) presumptive limits (deposition, physical exam, undue burden); and (3) duty to supplement.

(1) all potential supporting witnesses;
(2) all relevant supporting documents;
(3) a damage computation;
(4) relevant insurance coverage.

Front 25

Limits on scope of discovery

Back 25

(1) relevant;
(2) not privileged

Front 26

Define work product

Back 26

Any material that has been prepare in anticipation of litigation and not in the ordinary course of business.

Att mental impressions-never disc.
Everything else-substantial need--undue hardship

Front 27

Sanctions

Back 27

Failure disc. request-compel discovery with fees and costs assessed
Failure to disclose auto.: may not be used in litigation unless show substantial reason for failure.
Violating order to compel-bar entire category evidence or rule against on issue at trial.

Front 28

Motion summary judgment

Back 28

(1) up to 30 days after disc.; and (2) no genuine issue of mateiral fact.

Front 29

Motion for judgment as a matter law and renewed motion for judgment as a matter of law

Back 29

(1) after adversary has been heard; and (2) insufficient basis basis for a reasonably jury to find for non-moving party.

Renewed motion within 28 days of judgment if made the initial motion above (sam standard)

Front 30

Motion for a new trial

Back 30

(1) within 28 days of a judgment; and (2) errors at trial that effect subst right or verdict against manifest weight of evidence.

Front 31

When do you get a jury trial in federal court involving civil matters

Back 31

(1) written demand within 14 days of service of the complaint or answer; and
(2) constitutionally required (i.e., monetary damages).

Front 32

Offer of judgment and requirements to get fees and costs

Back 32

(1) offer (2) fail to accept within 14 days and (3) don't do better than offer.
(1) defendant makes formal offer to settle the case with sanctions attached; (2) plaintiff fails to accept within 14 days; and (3) plaintiff fails to do better at trial.

Front 33

Res judicata

Back 33

A claim that has been fully and fairly litigated to a final judgment on the merits cannot be re-litigated by the parties.

Front 34

Collateral estoppel

Back 34

An issue which has been fully and fairly litigated as part of a final judgment cannot be re-litigated by the parties.

Front 35

Finality rule (collateral estoppel and res judicata)

Back 35

Parties are precluded from re-litigating claims or issues which those parties have already litigated on the merits.

Front 36

Foreign corporation service

Back 36

(1) in accordance with a treaty; (2) in accordance with foreign law; (3) as the foreign directs in response to a letter for guidance; (4) clerk mails service; or

(5) ANY OTHER MEANS NOT PROHIBITED BY INTERNATIONAL AGREEMENT THAT THE COURT MAY ORDER.

Front 37

Issue: whether an order that disposes of a few claims or parties may be appealed.

Back 37

General rule is that cases are not appealable until final. However, where multiple claims or parties are involved the court may enter a final judgment as to some of them on (1) an express determination that there is no just reason for delay; and (2) an express direction for the entry of judgment.

Front 38

Interlocutory appeals act

Back 38

Review is discretionary and may be available where: (1) the trial judge certifies that the interlocutory order involves a controlling issue of law; and (2) the court of appeals then agrees to allow the appeal.