Sc Bar Exam - Civil Procedure

Front 1

Main issues in SC / main issue in federal court

Back 1

SC - Personal jurisdiction

Federal Court - subject matter jurisdiction (every claim must have independent SMJ - diversity, federal question, or supplemental)

Front 2

Venue - Federal District Courts

Back 2

Venue can be waived if not timely asserted

Fed ct - Action may be brought in any district where:
- any defendant resides
- a substantial part of the vents or omissions giving rise to claim occurred
- substantial part of the property subject to litigation is situated

Residence for defendants:
- individuals = domiciled = physical presence + intent to remain
- Corporations - any district where corporation is subject to personal jurisdiction =
--General jdx = principal place of business (nerve center) or incorporated state, and substantial contacts
-- specific jdx = long-arm statute = claim of action arises from

Front 3

Venue - South Carolina

Back 3

Resident defendant individuals = venue appropriate in county where:
- defendant reisdes or
- substantial part of act or omission occurred

Nonresident defendant individuals
- substantial part of act/omission or
- PLAINTIFF resides, principal place of business AT the time action arose

Multiple defendants
- where any one of the defendants resides (domiciled=physical presence + intent)

Real property at issue
- county where real property located

Front 4

Change of Venue

Back 4

Transfer within same court system
- court may transfer, or Defendant may transfer

Transfer appropriate if:
- "no fair or impartial trial may be held"
- convenience of witnesses and promotion of justice

Front 5

Forum non conveniens

Back 5

transferring between court systems (federal / state)

Front 6

Forum selection clauses

Back 6

Generally UNenforceable in SC

Arbitration clauses are enforceable if arbitration must occur within the state

Front 7

Notice and Pleading - service of process

Back 7

Procedure by which a copy of Summons and Complaint are served to Defendant to obtain personal jdx

Service = 2 part test - does the service:
- Meet statue statutory requirements of state +
- satisfy Due Process - is the notice reasonably calculated, under the circumstances, to apprise defendant of the pending action

Front 8

Notice and Pleading - federal court service of process

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Waiver - most common
- if the defendant waives personal service > gets 60 days for Answer
- No waiver > pay costs
- No waiver > actual service required

Actual service
- Required 30 days after request for waiver and no response
- Personal delivery - person or residence w/ suitable person (age, discretion, residing at dwelling)
- Corporations - delivery to officer or agent

Front 9

Notice and pleading - federal service of process - territorial limits

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Comply with STATE long-arm statutes - UNLESS

Bulge rule - JOINED or IMPLED defendant within 100mi of courthouse

or Federal statute authorizes nationwide service

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Notice and Pleading - SC service of process

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Serve summons + complaint

Summons - directs defendant to Serve an Answer - default judgment without a timely response (entry of default > judgment)

Persons to be served
- individuals who are neither incompetent or under 14
- officers / agents
- attorney general

Manner
- personal delivery or certified mail
- long-arm statute - personal delivery, cert. mail, compliance with state where service is made
- No service on sunday

Service by publication - publication most like to give notice

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Pleadings - Complaint - notice and fact pleading

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Requires
- statement of subject matter jurisdiction
- Allegations

Allegations shown by NOTICE pleading (FEDERAL) or FACT pleading (SC)
- Notice pleading - short, plain statement of the claim > enough information to allow opponent to formulate a meaningful response
- Fact pleading - short, plain statement of the FACTS showing that pleader is entitled to relief - facts for each element of claim

Front 12

Pleadings - Pre-Answer motion or Answer

Back 12

Timing
- Fed - 21 days after service, 60 days if service waived
- SC - 30 days after service

Rule 12 Pre-answer motions
- Form - more definite statement, motion to strike
- 12(b) - technicalities
-- no subject matter jurisdiction
-- no personal jdx
-- improper venue
-- insufficiency of process (bad document)
-- insufficiency of service (bad delivery)
-- SC RULE - no double claims - another action pending between same parties for same cause (kind of an early form of res judicata)

12(b) defenses - on the merits
- summary judgment
- failure to state a claim
- judgment on the pleadings

Timing and waiver of Rule 12
- all must be in single motion
- not in first response - waived

Front 13

Pleadings - Answer

Back 13

Timing
- Fed - 21 days / 60 days waiver of service
- SC - 30 days after service with no Pre-answer motions or 15 days after ruling on motion

Contents
- Responses to allegations - admit, deny , lack suff info
- Affirmative defenses - SC fact pleading - affirm defenses must be plead like allegations

Front 14

Pleadings - Amendment

Back 14

Relation back - amended pleadings treated as if original

Of right
- Fed - can amend up to
> 21 days after serving pleading if no response required
> 21 days after service of a response to a pleading
-SC - 30 days either way
- with leave of court

Response to amended pleadings
- SC - 15 days
- Fed - 14 days

Front 15

Joinder of Parties and Claims - Permissive

Back 15

Rule 20 - requires
- same transaction or occurrence, shared common question of law or fact

Federal - subject matter jdx over each claim -either by
- independent SMJ for each claim or
- independent over one and supplemental over the rest

Front 16

Joinder - persons

Back 16

Persons needed for just adjudication - people need to be joined b/c of relations

Necessary parties - joined if feasible when
- complete relief cannot be afforded w/o
- absentee interest will be harmed
- absentee claims interest

Indespensible parties - absentee joinder not feasible
- court must determine in equity and good conscious the action can proceed among existing parties

Front 17

Joinder of claims

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Rule 18 - freely allowed

Fed - need SMJ

Front 18

Counterclaims

Back 18

permissive - any claim defendant has against plaintiff may be asserted

fed - need independent smj grounds

compulsory - any counterclaim which arises from same transaction or occurrence as plaintiff's claim MUST be filed in pending case

Front 19

Cross-claims

Back 19

not compulsory - supplemental jdx will exist for a cross-claim meeting Rule 13

Front 20

Impleader -

Back 20

derivative liability - if I am liable so is x

- As of right - 10 days after serving answer in SC, 14 in fed
- Bulge rule applies
- If D impleads 3rd party - supplemental jdx exists
- If 3rd P impleads a plaintiff - supplemental jdx exists
- If Plaintiff impleads 3p - need independent grounds or claim arose out of same transaction or occurrence

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Intervention

Back 21

Absentee wants to join pending suit
- of right when interest in property or transaction, action will impair that right, and interest not currently and adequately represented by parties (plaintiff needs independent grounds, Defendant only needs supplemental grounds)

Permissive - common question between pending claim and absentee's claim (independent grounds need)

Front 22

Interpleader

Back 22

consolidating several claimants so as to not be subject to multiple liability

Fed court -
- complete diversity required, normal limits on service of process
- Statutory impleader - minimal diversity - one claimant must be diverse from another claimant + $500 min

Front 23

Class actions

Back 23

SC requires:
- numerosity - too many parties for practical joinder
- commonality - same question of fact or law
- typicality - claims/defenses are typical of class members
- representations - will fairly and adequately represent class
- min $100 for each class

(b)(1) prejudice action
(b)(2) injunction or declaratory action
(b)(3) damages action

Front 24

Discovery - generally

Back 24

Meetings
- fed required
- sc not required

Required disclosures (fed only)
- identity of individuals, docs, supporting stuff
- expert witnesses
- pretrial disclosures - no later than 30 days before trial

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Discovery - substantive scope

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SC - any information relevant to the subject matter involved in the pending action
Fed - any info relevant to the CLAIMS OR DEFENSES

Front 26

Discovery - work product doctrine

Back 26

Docs, esi, tangible things, prepared in anticipation or preparation for trial gives a qualified immunity

must show substantial need or no substantial equivalent

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Discovery - timing

Back 27

SC - depositions may not be taken less than 30 days after service, unless Defendant starts first

Interrogatories and RFPs- may be served along with complaint

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Discovery - depositions

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SC - must have claim of $10k or more
Fed - always allowed

Must serve - written notice for parties, notice + subpoena for nonparties

subpoean duces tecum for non-party to bring doc/tangible thing

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Discovery - depositions - objections

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Preserved unless waived

Waived if not raised during deposition - form of question, qualified reporter

preserved - relevance, competency

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Discovery - depositions - counseling witness

Back 30

SC - cannot counsel witness except to assert privilege

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Discovery - interrogatories

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SC standards
- witness infor
- photos/sketches/prepared docs
- (personal injury) all doctor/treatment/hospital info (costs)
- insurance
- statement of damages
- expert witness info
- summary of facts known to or observed by witnesses listed

SC - if case is over 25k - get standards + 50 otherwise just standard 7
Fed - 25 max

Front 32

Discovery - requests for production

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Party - 30 days, 45 days if included in service
Non-party - subpoena duces tecum

Front 33

Injunctive relief - preliminary injunction

Back 33

Court order to stop some action, with hearing and notice. Must show:
- substantial likelihood of success on the merits
- irreparable harm
- balance of hardships
- public policy doesn't preclude

Give - motion with support for above, hearing for defendant, security bond

duration lasts until there is a judgment on the merits of the case

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Injunctive relief - temporary restraining order

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Emergency preliminary injunction that does not provide for hearing or opportunity to be heard

Lasts for 10 days in SC, 14 days in Fed

Must show:
- substantial likelihood of success on the merits
- irreparable harm before hearing will be held
- balance of hardships
- public policy
- notice efforts have been made
- give security bond

Front 35

Pretrial disposition - voluntary dismissal

Back 35

Of right - once without prejudice before defendant answers

Court can dismiss by order or stipulation

Front 36

Pretrial disposition - involuntary dismissal

Back 36

Grounds: failure to prosecute, failure to comply with rules/orders, rule 12 motions

Effect - with prejudice - unless court orders otherwise but Rule 12 dismissals are always with prejudice

Front 37

Pretrial disposition - default judgment

Back 37

Step 1: entry of default by Clerk on the docket that party has failed to plead or otherwise defend

Step 2: default judgment
- fed - clerk of court enters if Defendant did not appear and case was for a sum certain
- by judge if Defendant appeared and not for sum certain

- SC - must be done by Judge

Front 38

Getting out of default judgment

Back 38

Setting aside
- entry of default - motion requires good cause and viable defense
- default judgment - mistake, inadvertence, excusable neglect, AND meritorious defense

Front 39

Summary judgment

Back 39

Timing of motion
-fed - up until 30 days after close of discovery
> response required w/in 21 days after motion served > reply 14 days after that

court may grant on own motion

SC - defendant may file motion for summary judgment AT ANY TIME
- plaintiff may file any time AFTER: 30 days of commencing the action, after motion of summary judgment by defendant

Standard
- no genuine issue of material fact
- movant entitled to judgment as a matter of law

Front 40

Consolidation and Bifurcation

Back 40

court may do so by discretion

Front 41

Trial by jury

Back 41

Case in equity - no jury trial

Case in law - jury trial

7th amendment - if claim existed in 1790's you have a right to jury trial

Demand for jury - must make a demand or else waived - parties must file demand:
-SC - 10 days after service of last pleading addressing jury triable issues
- Fed - 14 days

Front 42

Jury selection - voir dire

Back 42

Challenges to jury selection
- for cause - unlimited, just convince judge
- preemptory - any reason, 3 per side
- no gender or race based challenges

Front 43

Motions challenging sufficiency of evidence

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Directed verdict
-In fed it's a "Judgment as a Matter of Law" JML
- evidence will permit only one conclusion
- raise at close of plaintiff evidence or close of all evidence

Motion for non-suit - court may dismiss action at close of plaintiff evidence if judge would not find for plaintiff on that evidence

Front 44

Jury verdict

Back 44

Fed and SC require UNANIMITY

Form
- general - no rationale given
- general + interrogatory - jury must answer questions and give verdict
- special - give specific instructions, court then applies law to facts jury finds

Front 45

Post-trial motions

Back 45

JNOV - judgment notwithstanding the verdict (Renewed JML / directed verdict motion)
- Evidence is so one-sided that no rational jury could have given the verdict they did
- SC- motion made at close of all the evidence
- Fed - motion at end of plaintiff evidence or all evidence

Motion for new trial
- Error during trial; prejudicial misconduct of party or juror
- judgment against weight of evidence
--Fed - serious error by juror
--SC - 13th juror - trial judge has great discretion to grant new trial whenever the trial judge would have reached a different result than jury

SC - 10 days after jury discharge
Fed - 28 days after judgment

Motion for relief from judgment - clerical mistakes

Front 46

Appellate Review

Back 46

Filing
- 30 days after judgment or
- with post-trial motions
--Fed- notice 30 days after motion ruled on
--SC - 15 days after motion ruled on

Reviewable orders
- Final judgment rule - trial court must make decisions on merits of entire action before appeal allowed - "after making the order, does the trial court have anything left to do on the merits of the case?"

Front 47

Preclusion

Back 47

Claim preclusion (res judicata)
- same parties/privity with parties
- same claim
- final judgment on the merits
> new action will be precluded

Issue preclsuion (collateral estoppel)
- same issue
- actually litigated and decided
- final judgment
- determination was essential to the prior judgment
- - if determination would have been different > outcome would have been different

SC - does not require mutuality for collateral estoppel
- aka Non-mutual issue preclusion