Civil Procedure (Mbe Memorize)

Front 1

Subject matter jurisdiction requirements AND exclusions

Back 1

• Two requirements for diversity jurisdiction:
• 1) The case is either (a) between "citizens of different states" (diversity) or (b) between "a citizen of a state and a citizen of a foreign country" (alienage) [citizenship at time of filing]; AND
• 2) The amount in controversy exceeds $75,000

• Exclusions: Even if the requirements are satisfied, federal courts decline to hear some cases
  
• Divorce, alimony, child custody, and to probate and estate.
• This is a CLOSED LIST of exclusions.

Some trickies w/ diversity

• An alien admitted to US for permanent residence (green card) is a citizen of whatever foreign state they're from.
• If the green card alien is domiciled in the same state as P, then no SMJ.
  
• A US citizen living in another country is neither a citizen of a state nor a citizen of a foreign state.
• Partnerships have the citizenships of ALL its members
• Corporations are citizens of all states/countries where they are (i) incorporated; AND (ii) have their principal place of business
• Class action, only look at named members for diversity
• Decedents, minors, and incompetents, look at THEIR citizenship, not that of their appointed representative)

Front 2

Aggregation of claims for amount in controversy requirement for SMJ

Back 2

We aggregate claims (including unrelated ones) of one P against one D

We aggregate claims (related only) of one P against multiple D's (joint tortfeasors).

Cannot aggregate claims of multiple P's unless they are seeking to enforce a joint right in which they have an undivided interest.

As long as the sum of P's claims is more than $75,000, the amount in controversy requirement is satisfied.

Front 3

Pendent jurisdiction over state claims

Back 3

If P has both federal and state claim, fed court has discretion to exercise pendent jurisdiction over the claim based on state law if the two claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding.

Can continue hearing the state claim even if the federal claim is dismissed.

Front 4

Supplemental jurisdiction

Back 4

Once a case is properly in federal court, we have to test every single additional claim for federal SMJ.If the additional claim satisfies either diversity or federal question, it can be heard in the federal court case. If the additional claim does NOT satisfy diversity or federal question, the federal court can still hear the claim if it invokes supplemental jurisdiction.
How do we get supplemental jurisdiction?

• Rule: a non-federal, non-diversity claim can be heard in federal court if it arises from the same transaction or occurrence as the underlying case ("common nucleus of operative fact"), UNLESS it is: (i) asserted by a plaintiff ; (ii) in a diversity of citizenship case ; AND (iii) it is asserted against a citizen of the same state as the plaintiff
• Remember that the underlying case itself must be in federal court in order for there to be supplemental jurisdiction for additional claims

Front 5

Removal

Back 5

Requirements for removal:

• D must remove within 30 days of service of the first paper that shows the case is removable.
• All defendants who have been served with process must join in the removal. It must be unanimous.
  
• The 30 days for D1 starts anew with service of process on D2. All D's who have been served must then remove within that new 30 day window.
• 
  
• What cases can be removed?
  
  • Any case that meets the requirements for diversity or federal question. So any case that could've been brought in federal court.
  • Two big exceptions, which apply ONLY if we are removing on the basis of diversity:
  • ---1) No removal if any D is a citizen of the forum
  • ---2) No removal more than one year after the case was filed in state court, unless the district court finds that P has acted in bad faith

  • Remove to where?

    
    
    
    • Can only remove to the federal district embracing the state court where the case was filed

      Remand

      
      
      • If P thinks removal was improper for some reason other than lack of SMJ she must move to remand no later than 30 days after notice of removal is filed.
      • Can remove based on lack of SMJ anytime!

Front 6

Proper venue

Back 6

Does NOT apply to cases that were removed to federal court (those are removed to the district that encompasses the state court where the case was brought.

• 1) P may lay venue in any district where ANY defendant resides, if all D's are resident of the state in which the district is located
• ---Special rule: If all D's reside in different districts of the same state, P can lay venue in the district in which any D resides.
• ---Humans "reside" in the district where domiciled. Businesses (corporation or non-incorporated) reside in ALL districts where they are subject to PJ for this case (where incorporated and where they have principal place of business), so could reside in more than one district.

• OR, 2) P may lay venue in any district where a substantial part of the claim arose

• OR can go to an improper venue X if D informs P that he will waive proper venue and litigate in X. If P consents, then they can litigate in the improper venue X.

Front 7

Transfer of venue

Back 7

Rule: Can ONLY transfer to a district where the case could have been filed. This means that the transferee must be a proper venue AND have PJ over D. The transferee must be proper without waiver (of lack of PJ or improper venue) by D.---Exception: The court can transfer to ANY district (including an improper venue) if all parties consent and the court finds cause for the transfer. This is unlikely because P is unlikely to consent.If original venue proper, then can transfer for convenience of parties/witnesses and in interest of justice.If original venue improper, can transfer in the interest of justice or dismiss.

Front 8

Complaint

Back 8

• Filing a complaint commences an action and cuts off statute of limitations.

Requirements:

• 1) Statement of grounds of subject matter jurisdiction;

• 2) Short and plain statement of the claim, showing entitled to relief. Must plead facts supporting a plausible claim. Plausibility determined by judges using their experience and common sense.

• 3) Demand for relief sought (e.g., damages, injunction, declaratory judgment)
  

D's response:

• To avoid default, D must respond by motion or by answer within 21 days of service of process. If you waived service, you get 60 days from when P mailed the waiver form.

Front 9

12(b) motions

Back 9

Rule 12(b) defenses (can be put in the motion to dismiss OR the answer)

• (1) lack of subject matter jurisdiction (SMJ)
  
• (2) lack of PJ: waivable
• (3) improper venue: waivable
• (4) improper process (problem with the papers): waivable
• (5) improper service of process: waivable
• (6) failure to state a claim
• (7) failure to join indispensable party.
  

• WAIVABLE (2, 3, 4, and 5) defenses must be put in the first rule 12 response (motion or answer) or else they are waived and cannot be raised later. Non-waivable defenses can be asserted anytime, even after trial.

Front 10

Answer

Back 10

Includes...

1. Response to claims: admit, deny, or state lack of sufficient info to admit or deny (can't do this if info is in your control, have duty to look it up)
2. Raise affirmative defenses (like res judicata, self-defense, statute of frauds, statute of limitations). MUST be in answer or else waived.
3. Counterclaims (if arising under same T/O as original case then they are compulsory and must be raised in answer or else waived)

Front 11

"Relation back"

Back 11

4) Amendment after the statute of limitations has run ("relation back"). "Relation back" means you treat the amended pleading as though it was filed when the original was filed, so as to avoid statute of limitations problem.---a) To join a new claim: Amended pleadings relate back if they concern the same conduct, transaction or occurrence as the original pleading.---b) To change a defendant after the statute has run: Will relate back if (i) it concerns the same conduct, transaction or occurrence as the original; (ii) the new party knew of this case within 120 days of its filing; and (iii) new party also knew that, but for a mistake, she would have been named originally.

Front 12

Rule 11

Back 12

When lawyer or pro se party signs a document he certifies that to the best of his knowledge and belief, after reasonable investigation, that

(1) The paper is not for an improper purpose,; and(2) The legal contentions are warranted by law (or nonfrivolous argument forlaw change); and(3) The factual contentions and denials of factual contentions have evidentiarysupport (or are likely to after further investigation).

Front 13

Required initial disclosures

Back 13

Initial disclosures: Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference, each party must disclose:

1. Identities of people who have discoverable info you may use to support your case (if not disclosed, can't use them)
2. Documents and things you may use to support your case (if not disclosed, can't use them)
3. Computation of monetary relief and documents/ESI supporting it
4. Insurance that might cover all or part of the judgment

Front 14

Permissive joinder

Back 14

P may join other P's or D's if:

their claims 1) arise from the same transaction or occurrence; and 2) raise at least one common question

Front 15

Necessary joinder

Back 15

Who is necessary?

• An absentee (A) who meets ANY of these tests:
• ---(i) Without A, the court cannot accord complete relief among existing parties (worried about multiple suits); or
• ---(ii) A's interest may be harmed if he is not joined (practical harm for A). NOTE: this is the most common on the bar exam; or
• ---(iii) A claims an interest that subjects a party (usually D) to a risk of multiple obligations
• Joint tortfeasors are NEVER necessary

Is joinder of the necessary party feasible?

• Joinder is feasible if: 1) there is PJ over you; and 2) joining you will not defeat diversity jurisdiction .
• If joinder is feasible, court orders your joinder.
• If joinder is not feasible, court MUST do one of two things: 1) proceed without you; or 2) dismiss the entire case (in which case A is called "indispensable")