Glossary of Federal Civil Procedure 2

Start Studying! Add Cards ↓

What are the elements of proving an individual's domicile
1. Presence
2. Intent to make it your permanent home
When do you evaluate citizenship for determining diversity of citizenship
When the case is filed
Can an individual move and then sue in diversity based on the new state
Yes if they have the intent of making the new state their permanent home
What is the citizenship of a corporation
1. All states where incorporated
2. Where the principal place of business is located
What are the tests for principal place of business
1. Nerve center test--where decisions are made/headquarters
2. Muscle center test--where it does more production or service activity then anywhere else
How do you determine the citizenship of an unincorporated association
Use citizenship of ALL members
How do you determine citizenship of decedents, minors and incompetents
Look to thier citizenship, not the citizenship of their representative
How do we know the amount in controversy
Whatever P claims in good faith is OK unles it is clear to a legal certainty that she cannot recover that much
What if P sues under diversity and recovers less than 75k
Jurisdiction is ok, but may be liable to D for costs
When do you aggregate claims to get 75k for amount in controversy
When one P sues one D, even if claims are unrelated
--Do not aggregate if more than one P
--Can aggregate if P sues joint tortfeasors
How do you value equitable relief to see if it meets the amount in controversy
1. Majority--does it decrease the value of Ps property by more than 75k
2. Minority--would it cost D more than 75k to comply with the injunction
What cases will a federal court not here even if diversity and amount in controversy are met
Divorce, alimony or child custody decree, probate an estate
How do you know if P is enforcing a federal right for federal question jurisdiction
Well pleaded complaint rule
-properly pleaded complaint sets forth only a claim, without any extraneous stuff that has nothing to do with the claim
--Make sure the federal law is what gives the P rights
What is Pendent supplemental jurisdiction
Only for claims joined by a P in a FQ case (P-pendant)
-Must arise from a common nucleus of operative fact (T/O)
-Can be pendant if same T/O even if against another D
-Court has discretion not to hear
Whan might a court exercise discretion not to hear a supplemental claim
1. If the FQ is dismissed early in teh proceedings
2. State law claim is complex
3. State law issues would predominate
What is Ancillary jurisdiction
Only for claims joined by Anyone but P in Any case (AA-ancillary) AND teh claim arises from same T/O
What is removal
One way street for Ds ONLY--case filed in state court can be removed to federal court embracing the state court in which the case was originally filed
--General test: Can be removed if case could have been heard in federal court
What is the timing for removal
Must remove no later than 30 days after service (not filing) of the first removable document
-usually after initial service of process
--some cases not removable unitl later
If more than one D in a case can it be removed
Only if ALL Ds agree and FQ or diversity of citizenship requirements are met
Special removal rule for diversity cases
No removal if any D is a citizen of the forum, even if it could have been filed in federal court to start with
Erie Doctrine
In a diversity case a federal court must apply state substantive law.
-Fed. rule is valid as long as arguably procedural
What situations under Erie does the federal court definitely have to apply state law
1. SOL
2. Rules for tolling SOL
3. Choice of law rules
Guidelines for state v. federal law
1. If state law is outcome determinative, use it
2. Does fed. or state have a strong interest in having its rule applied
3. Avoid forum shopping
How do you determine residence
Different from citizenship
1. Individuals--domicile
2. Corporation--where subject to PJ (everywhere it does business)
Requirements for service of process
1. Summons and complaint
2. Served by a nonparty 18+
3. Served within 120 days of filing the cse
Substituted service
1. At Ds usual abode
2. Serve someone of suitable age and discretion who resides there
May a D waive formal service of process
Yes, mail the process and D can mail back a waiver within 30 days
Can D be served while in state as a W or party in another civil case
No, she is immune
Requirements of Rule 11
Certify after reasonable inquiry:
1. Not for an improper purpose
2. Legal contentions warranted by law or non-frivolous argument for law change
3. Factual contentions and denials have E support or are likely to after further investigation
What are the consequences of violating Rule 11
Sanctions MAY be levied against atty, firm, party aimed at deterrence. Can be nonmonetary
How do you get another party sanctioned under rule 11
Motion for violation served on the other party and they have 21 day safe harbor to withdraw the document or fix problem
-If they do nothing in 21 days then file motion with the court
Requirements of a complaint
1. Statement of SMJ
2. Short plain statement of claim showing entitled to relief
3. Demand for judgment
Which speical matters are to be pleaded with specificity?
Fraud, mistake and special damages
How must D respond to a complaint
File a motion or an answer within 20 days after service of process
What motions may a D file with respect to the form of the complaint
1. 12e Motion for more definite statement
2. 12f Motion to strike
--These must be brought before filing a responsive pleading or teh right is waived
What motions may D file with respect to the merits of a complaint
1. 12b6 failure to state a claim
-Put in pre-answer motion or in the answer
2. 12c judgment on the pleadings
3. Summary judgment (rule 56)
What matters of abatement can D claim with respect to a complaint
1. Lackof SMJ
2. Lack of PJ
3. Improper venue
4. Insufficiency of process
5. Insufficient service of process
6. Failure to join an indespensible party
Which of the matters of abatement must be put in the first response to Ps complaint or be waived
PJ, venue, insufficiency of proces, insufficient service of process
Requirements for a Ds Answer
1. Serve within 20 days or 10 days after a motion is denied
2. Admit, deny, or lack information to each claim (failure to deny = admission)
3. Raise affirmative defenses
What are the classic affirmative defenses
SOL, SOF, res judicata, AOR, self-defense

--must plead or E of them is inadmissible at trial
What is a counterclaim
Offensive claim against an opposing party filed with responsive pleading
What are the types of counterclaims
1. Permissive--does not arise from same T/O does not have to be asserted
2. Compulsory--arises from same T/O, must be filed in pending case or it is waived
How can you have jurisdiction for a counterclaim
FQ, diversity, or for compulsory you automatically have ancillary supplemental
What is a cross-claim
Offensive claim against a co-party
--must arise from same T/O
--Not compulsory
--Ancillary jdxn always works for a cross claim
Can pleadings be amended
P can amend once before D answers
D can amend once within 20 days of serving the answer
--Court can allow you to amend later unless there is delay or prejudice
--Can't introduce E that is at variance with the pleadins unless the opposing party fails to object
What is relation back with regard to amended pleadings
They relate back if they concern the same conduct or T/O as the original pleading
--So you treat amended as though it was filed when original was filed
--Even if SOL has since run, no bar
If P amends when must D respond
10 days or however much is left of the original 20, whichever is longer
Who may be joined
-Ps may sue together if their claims arise from same T/O and they raise at least one common question
-May joint multiple Ds if claim is from same T/O and raise at least one common question
**Then assess for SMJ**
Who are necessary and indespinsible parties whose joinder may be compelled if feasible
1. Without absentee the court cannot accord complete relief (worried about multiple suits)
2. Absentee's interest may be harmed if he isn't joined
3. Absentee claims an interest which subjects a party (usually D) to mutilple obligations
**Joint tortfeasors are NOT necessary parties**
What does the court do if joinder of an indespinsible party is not feasible
1. Proceed without him
2. Dismiss whole case
a. Alternative forum where everybody can be joined
b. actual liklihood of prejudice
c. Can court shape relief to avoid prejudice
What is impleader

I = In comes someone new
3rd party is brough in (usually by D) for indemnity or contributino for the underlying claim
What are the steps for impleading
1. File a 3rd party complaint naming the D
2. Serve process on teh D
--Right to implead within 10 days of serving answer, after that need courts permission
After 3rd party D is impleaded may he and P bring claims against each other?
Yes if arises from teh same T/O as underlying case
--Then look for SMJ
P(NY) sues D(Mass) who impleads TPD(NY). All claims exceed 75k. Is there SMJ for each claim against each other?
1. D v. TPD--Ancillary (not P and same T/O) or diversity
2. TPD v. P-Ancillary, not P and same T/O
3. P v. TPD--no, this is action by P; Pendant is for FQ only so this claim must go to state court
Bulge Rule
Absentees joined as necessary parties or per impleader may be served outside the forum state, regardless of state law, within 100 miles of couthouse.
What are the initial requirements for a class action suit
1. Too numerous for practicable joinder
2. Some questions of law or fact common to class
3. representative's claims/defenses typical of class members
4. representative and her lawer will fairly and adequately represent the class
After meeting initial requirements what are the three types that a class action suit must fit into one of
1. Prejudice
2. Injunction or declaratory judgment sought
3. Damages--a. common questions PREDOMINATE and b. class action is the superior method for resolving the dispute
Must courts notify the class of pendency of the class action
In damages class, must notify telling them they can opt out, the binding effect of the suit and that they can enter a separate appearance through counsel
Who is bound by a decision in a class action
All class members except those who opt out of a damages case
Can a class action be settled or dismissed
Not without court approval, members in a damages suit must be given a second chance to opt out
How do you get a class action brought under a diversity claim
Look only to representatives citizenship
--Some say each members claim must exceed 75k
--Ga: only representatives claim needs to exceed 75k
What initial disclosures are required
Identify persons and documents likely to have discoverable information that the disclosing party may use to support its claims or defenses, computation of damages and insurance for all or part of the judgment
What disclosure is required with regard to experts
Must identify experts who may be used at trial and produce written report containing opinions, data used, qualifications, compensation fro study, etc.
What pretrial disclosures are required
30 days before trial, must disclose detailed information about trial E, including documents and identity of Ws to testify live or by deposition
Which discovery tools can be used to get information from a non-party
Depositions--must subpoena
RPD--must subpoena
What can a deposition be used for at trial
Impeachment, any purpose if deponent is an advese party, any purpose if deponent is unavailable for trial
How many ROGS can you send without stipulation
25 including subparts
Can you make another party get a physical or mental exam
ONly through court order on a showing that party's (or person in their control)health is in actual controversy and "good cause" (can't get it elsewhere)
--If person subject to the exam gets a copy of the report they waive their doctor/patient privilege to reports by her doctors re the same condition
Does rule 11 apply to discovery docuemnts
No, parties sign under oath and counsel signes cetifying not interposed for an improper purpose or unduly burdensome
What is the scope of discovery
Anything relevant(reasonably calculated to lead to teh discovery of admissible E) to a claim or defense (not just relevant to the case). For good cause, court can order discovery "relevant to subject matter of the case"
What is work product
Material prepared in anticipation of litigation by atty, party, or rep of the party
--anything with mental impressions not discoverable
--other stuff can be discovered by showing substantial need and not otherwise available
What are RAMBO sanctions
Those that can be imposed on a party for violation of discovery rules
Can a P voluntarily dismiss a case
Yes, once without prejudice if before D answers but the second time it is with prejudice even if the first case was in state court
What is in a 12b6 motion
Says that even if all the allegations are true, P still has failed to state a claim on which relief can be granted
--Judge looks only at pleadings not at E
What must a party show to get SJ
1. No genuine dispute on a material issue of fact
2. Entitled to judgment as a matter of law
--Judge looks at E in light most favorable to non-moving party
What happens at the pretrial conference
Determines issues to be tried and E to be proffered, supersedes the pleadings
-May be amended to prevent manifest injustice
Is there a right to a jury trial in federal court
Yes under the 7th Amendment you get one for law issues but not for equity issues
How many peremptory and for cause strikes does each side get
3 peremptory; unlimited for cause
What is a motion for judgment as a matter of law
Directed verdict--take the case away from the jury
--D can move at close of Ps case and and close of own case, P can only move at end of all E
What is the standard for granting a JMOL
Reasoanble people could not disagree on the result
What is a renewed motiong for judgment as a matter of law
JNOV--overturns jury verdict, must have moved for JMOL at end of all E or cannot bring
What is required for a motion for a new trial
1. Prejudicial error at trial
2. New E that could not have been obtained with due diligence for original trial
3. Prijudicial misconduct of attorney, party, or juror
4. Judgment is against the weight of the E
What is the Final judgment rule
Appeals are only allowed from final judgments (after entire action)

Add Cards

You must Login or Register to add cards