1
Q
What does a Civil Court need to hear a case in controversy?
A
- Subject Matter Jurisdiction over the type of claim
- Personal Jurisdiction over the people to be bound
- Proper Venue
2
Q
Subject Matter Jurisdiction
A
- The court’s fundamental authority to hear a type of case.
- State Courts are courts of General (unlimited) Subject Matter Jurisdiction.
- Federal Courts require either a Federal Question Jurisdiction or Diversity Question.
- May be challenged at anytime because a court must have Subject Matter Jurisdiction in order to enter an enforceable claim.
3
Q
Personal Jurisdiction
A
- The court’s authority to make binding decisions over the individuals or entities (parties) involved in a lawsuit, requiring fairness and “minimum contacts” with the state where the court sits
- Defendant must have domicile in the forum state, be voluntarily physically present in the forum state, has given consent to the forum state, or has waived their right to raise a personal jurisdiction objection.
- Defendant may make a compelling case that traditional notions of fair play and substantial justice would be violated.
- Personal Jurisdiction must be appealed as soon as is reasonable or it is waived.
4
Q
Federal Question Jurisdiction
A
- A legal issue arising from the U.S. Constitution, federal laws, or treaties, granting federal courts authority (jurisdiction) to hear cases involving these matters, as defined by 28 U.S.C. § 1331.
- Must be established by the “Well-Pleaded Complaint” Rule.
5
Q
Diversity Question Jurisdiction
A
- Diversity jurisdiction allows U.S. federal courts to hear cases not involving federal law if
complete diversity of citizenship exists (no plaintiff is from the same state as any defendant) AND the amount in controversy exceeds $75,000 - May take the aggregate of 1 plaintiff vs 1 defendant or 1 plaintiff vs multiple defendants that are jointly liable.
6
Q
Proper Venue
A
- A “proper venue” is the legally correct location (county or judicial district) for a lawsuit, usually determined by where defendants live, where the claim arose, or where property is located, ensuring convenience and fairness
7
Q
Well-Pleaded Complaint Rule
A
- On the face of the plaintiff’s complaint a Federal Question must be raised.
8
Q
Complete Diversity
A
- Every defendant in a case has a different citizenship from every plaintiff.
9
Q
Citizenship of… Individuals, Corporations, and Unincorporated Associations
A
- Individuals - domicile
- Corporation - State of Incorporation and their principal place of business. “Corporate Nexus” or “Nerve Center Test”.
- Unincorporated Association - The citizenship of all members is transferred to the Unincorporated Association
10
Q
Supplemental Jurisdiction
A
- A Federal Court may hear a case or controversy even if it would normally not have jurisdiction if the case constitutes the same case or controversy or same transaction or occurrence as a case the court is already sitting in valid Federal or Diversity Jurisdiction. 1367(a)
- 1367(b) The court has discretion to use this power. This is usually invoked if the supplemental claim predominates over the claim the Court is using to establish Federal or Diversity Question jurisdiction.
11
Q
Removal
A
- State claims may be removed by the defendant from State court to Federal Court if the claim arises under Federal Law or Diversity jurisdiction.
- In a Diversity claim, the defendant cannot remove a case that was filed in their home state.
12
Q
Long Arm Statutes for Personal Jurisdiction
A
- Long-arm statutes are state laws that allow courts to exercise personal jurisdiction over non-resident defendants who have sufficient “minimum contacts” with the state
- Minimum Contacts is required under the Constitution’s Due Process clause. Minimum Contacts exist under General Jurisdiction (at home - citizenship) or Specific Jurisdiction (Relatedness - Foreseeability and Purposeful Availment).
13
Q
What makes a valid Venue
A
- If all defendants reside in the same state, any district 1 defendant resides in is proper.
- If all defendants do not reside in the same state, then any district where a substantial part of the event occurred is the proper venue.
- Any defendant who would be subject to Personal Jurisdiction is also subject to that venue.
14
Q
Compulsory Counter Claim
A
- Acompulsorycounterclaimis a counterclaim (usually the defendant countersuing the plaintiff) that arises out of the same transaction or occurrence as the original claim filed.
- A federal court sitting in diversity jurisdiction has supplemental jurisdiction over a compulsory counterclaim.
15
Q
Permissive Counterclaim
A
- A permissive counterclaim is a counterclaim (usually the defendant countersuing the plaintiff) that doesNOTarise out of the same transaction or occurrence as the original claim filed.
- A permissive counterclaim can only be heard if it independently satisfies diversity jurisdiction.
16
Q
Cross Claim
A
- Across-claimis a claim filed by a plaintiff against another plaintiff or by a defendant against a co-defendant.
- A federal court sitting in diversity jurisdiction has supplemental jurisdiction over a cross-claim if the cross-claim arises out of the same transaction or occurrence as the original claim.
17
Q
Abstention
A
- A federal court may abstain from hearing a case or stay the matter pending the outcome of a state court action in order to avoid intruding upon the powers of a state court.
18
Q
Preliminary Injunction
A
- A preliminary injunction preserves the status quo of the parties until a final judgment on the merits can be reached. There are two types of preliminary injunctions:
- Prohibitory Injunction.A prohibitory injunction prohibits or restrains a party from engaging in a specified behavior.
- Mandatory Injunction.A mandatory injunction requires the defendant to engage in an affirmative act.
19
Q
Contents and Requirements for an Injunction
A
- Every order granting an injunction must:
1) State the reasons as to why it was issued;
2) State its terms specifically;AND
3) Describe in reasonable detail the act or acts restrained or required. - Requirements.
1) She is likely to suffer irreparable harm if the preliminary injunction is not issued;
2) She is likely to suffer greater harm than the defendant will if the preliminary injunction is not issued;
3) She is likely to succeed on the merits;AND
4) The injunction is in the best interest of the public. - Notice.The non-moving partyMUSTbe given notice and an opportunity to oppose the preliminary injunction at a hearing before the court.
20
Q
Temporary Restraining Order (TRO)
A
- A temporary restraining order(TRO)preserves the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction. A TRO may NOT last longer than 14 days unless good cause exists or the non-moving party consents.
21
Q
Ex Parte Notice
A
- An ex parte notice is a legal notice for an emergency court request made by one party without the other party present.
Unlike a preliminary injunction, the court may issue a TRO without written or oral notice to the non-moving partyONLY IF:
- Specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable harm will result to the movant before the non-moving party can be heard in opposition;AND
- The movant’s attorney certifies in writing any efforts made to give notice to the non-moving party and the reasons why it should not be required.
22
Q
Complaint
A
the complaint is the first pleading filed by the plaintiff — it commences the lawsuit. A complaintMUSTstate:
1) Grounds for subject matter jurisdiction;
2) A short statement of the claim that shows the pleader is entitled to relief;AND
3) A demand for judgment for relief.
23
Q
Pre-Answer Motion
A
After the complaint is filed, the defendant may file a pre-answer motion or respond with the answer. The pre-answer motion may raise any or all of the following defenses:
- Lack of subject matter jurisdiction;
- Lack of personal jurisdiction;
- Improper venue;
- Insufficiency of process;
- Insufficiency of service of process;
- Failure to state a claim upon which relief can be granted;AND/OR
- Failure to join an indispensable party under compulsory joinder.
24
Q
The Answer must state…?
A
The answerMUSTstate:
1) A specific denial or admission of each allegation in the complaintORa general denial of all allegations with specific admissions if necessary;AND
2) A failure to deny an allegation constitutes an admission.
3) Anyaffirmativedefensesthat the respondent has, or that defense is deemed waived.
25
Timing of the Answer
The timing of the answer depends on whether a pre-answer motion is made:
- If no pre-answer motion is made, a defendant who is formally served must present an answer within 21 days after service.
- If a pre-answer motion is made, the responsive pleading must be served within 14 days after the court’s denial or postponement of the motion.
26
By Leave vs By Right Amendments to Pleadings
A party may amend a pleading by right or by leave of the court:
By Right. A party may amend a pleading once as of right within 21 days if no responsive pleading is required. If a responsive pleading is required, the party may amend within 21 days of whichever event is earlier:
- The service of the responsive pleading; OR
- Being served with a Rule 12(b) motion.
By Leave of the Court. The court can permit an amendment to a pleading when justice so requires. Generally, a court will permit a proposed amendment if the proposed amendment:
- Is not subject to dismissal under Rule 12(b); AND
- Would NOT result in undue prejudice to the opposing party.
27
Relation Back Doctrine (New Claim)
The relation back doctrine determines whether an amendment to a pleading will relate back to the date of the original pleading.
New Claim -the amendment will relate back to the date of the original pleading if the new claim or defense arose out of the same transaction or occurrence set out in the original pleading.
28
Relation Back Doctrine (New Party)
The relation back doctrine determines whether an amendment to a pleading will relate back to the date of the original pleading. This can be important for statute of limitation purposes.
New Party. If fthe pleading is amended to include a new party or changes the name of a party, the amendment will relate back to the date of the original pleading if:
- It asserts a claim that arose out of the same transaction or occurrence set out in the original pleading;
- The party to be brought in by amendment receives notice of the action within 90 days after the filing of the original complaint such that he will not be prejudiced in defending his case on the merits; AND
- The party to be brought in by amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity.
29
Compulsory Joinder (Indispensable Parties)
A plaintiff MUST join an absent party or face dismissal of his lawsuit if:
- The court has personal jurisdiction over the absentee;
- The absentee’s presence would not destroy subject matter jurisdiction or venue; AND
Either:
- Complete relief cannot be accorded among the other parties to the action without the absentee party; OR
- The absentee has such an interest in the action that a decision in his absence will impede his ability to protect the interest or leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.
30
Permissive Joinder
From the same incident parties may join if the questions of law are the same and they are pursuing the same parties.
Parties MAY join as plaintiffs or be joined as defendants when:
- Some claim is made by each plaintiff and against each defendant that arises out of the same transactions or occurrences; AND
- There is a question of fact or law common to all parties.
31
Interpleader By a Plaintiff
Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though:
- The claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; OR
- The plaintiff denies liability in whole or in part to any or all of the claimants.
32
Interpleader
A defendant exposed to similar liability may seek interpleader through a cross-claim or counterclaim.
33
By Right vs Permissive Intervention
Intervention permits a nonparty to intervene in an action. Intervention may be granted as of right OR permissively:
- As of Right. Intervention is available as of right when the applicant claims an interest in the property or transaction that is the subject matter of the action, AND the disposition of the action without him may impair his ability to protect that interest.
- Permissive. Intervention is permissive when the applicant’s claim or defense and the main action have a question of law or fact in common. Permissive intervention must be supported by its own jurisdictional grounds and is discretionary with the court.
34
Class Actions
A class action is a type of suit where one of the parties is a group of people who are represented collectively by a member or members of that group (called “named parties”). A class action is proper if:
1) The class is so numerous that joinder of all members is impracticable;
2) There are questions of law or fact common to the class;
3) Named parties’ interests are typical of the class; AND
4) Named parties will adequately represent the interests of the absent members of the class
Once the above four requirements are met, the class will be certified IF:
1) Separate actions would create a risk of inconsistent results or impair the interests of unnamed parties;
2) The defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; OR
3) Common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication.
35
Rule 26(f) Conference
The parties must confer as soon as it is practicable to:
- Consider their claims and defenses, the possibility of settlement, initial disclosures, and a settlement plan; AND
- Submit to the court a proposed discovery plan addressing the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required by the court.
36
Initial Disclosures
Timing: within 14 days after the parties’ Rule 26(f) conference.
Content: The names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses, UNLESS the use would be solely for impeachment;
- Copies or descriptions of documents, electronically stored information, and tangible things that are in the disclosing party’s possession or control that the disclosing party may use to support its claims or defenses, UNLESS the use would be solely for impeachment;
- A computation of damages claimed by the disclosing party and copies of materials upon which the computation is based; AND
- Copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.
37
Scope of Discoverable Information
Generally, discovery is permitted with regard to any non-privileged matter that is:
- Relevant to any party’s claim or defense in the action; AND
- Proportional to the needs of the case.
38
Limitations on Discovery
On motion or on its own, the court is required to limit the frequency or extent of discovery if the court determines that:
- The discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient or less expensive; OR
- The party seeking discovery had ample opportunity to obtain the information by discovery in the action.
39
Depositions
A party may take the deposition of any party or nonparty witness (with a subpoena) at any time after the party has made its initial disclosures.
Without leave of the court, the plaintiffs and the defendants, each as a group, are limited to 10 depositions by oral or written examination. An oral deposition is limited to 1 day of 7 hours, unless the parties agree otherwise or the court orders otherwise.
40
Interrogatories
Availability. Any party may serve no more than 25 written interrogatories on any other party. Interrogatories may NOT be used on nonparties.
Scope. Interrogatories may relate to any non-privileged matter that is:
Relevant to any party’s claim or defense in the action; AND
Proportional to the needs of the case.
Answers and Objections. Interrogatories must be answered fully and separately under oath by the party to whom they are directed, unless the responding party objects by stating the specific grounds for the objection. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.
41
Attorney Work-Product Doctrine
The work-product doctrine protects materials prepared by an attorney or a client (or their agent) in anticipation of or during litigation from discovery by opposing counsel. Such materials will NOT be protected from disclosure to opposing counsel IF:
The materials are otherwise unavailable;
There is a substantial need for the materials; AND
The materials cannot be obtained without undue hardship.
When a party withholds information she believes is privileged or protected by work-product, the party MUST make the claim expressly and describe the nature of the documents in a manner that will enable other parties to assess the applicability of the privilege or work-product doctrine.
42
Pretrial Conference Sanctions
Fails to appear;
Fails to participate in good faith; OR
Fails to obey a pretrial conference order.
Dismissal of an action is a severe sanction, and generally it is only appropriate when a party’s conduct is serious, repeated, extreme, or otherwise inexcusable.
43
Rule 12(b) Motions to Dismiss
1) Lack of subject matter jurisdiction;
- Timing. The defense of lack of subject matter jurisdiction may be raised at any time, even on appeal.
2) Lack of personal jurisdiction;
- Timing. The defense of lack of personal jurisdiction must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived.
3) Improper venue;
- Timing. The defense of improper venue must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived.
4) Insufficient process;
- Timing. The defense of insufficient process must be raised in a preanswer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived.
5) Insufficient service of process;
- Timing. The defense of insufficient service of process must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived.
6) Failure to state a claim upon which relief can be granted; AND
- Timing. The defense of failure to state a claim may be raised in a pleading, in a motion for judgment on the pleadings, or at trial.
- 2-Step Analysis. Under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable or fails to allege facts sufficient to support a cognizable claim. In making this determination courts apply a 2-step analysis:
- First, the court must identify and reject legal conclusions unsupported by factual allegations; THEN
- Second, the court should assume that the well-pleaded factual allegations are true and, drawing on the court’s judicial experience and common sense, determine whether the allegations plausibly give rise to the entitlement of relief.
7) Failure to join an indispensable party under compulsory joinder.
- Timing. The defense of failure to join an indispensable party may be raised in a pleading, in a motion for judgment on the pleadings, or at trial.
44
Motion for Summary Judgment
A motion for summary judgment may be filed at any time until 30 days after the close of discovery.
A motion for summary judgment must be granted if, from the pleadings, affidavits, and discovery materials on file, when viewing the evidence in the light most favorable to the nonmoving party, it appears that:
- No genuine dispute of material fact exists; AND
- The moving party is entitled to judgment as a matter of law.
Summary judgment may be partial (e.g., limited to certain issues rather than the entire case). Denial of a motion for summary judgment is NOT appealable.
45
Motion for Judgment as a Matter of Law
A motion for judgment as a matter of law (formerly known as a “directed verdict”) may be filed by either party after the close of the nonmoving party’s evidence OR at the close of all evidence.
The motion will be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would NOT have a legally sufficient basis to find for the nonmoving party.
Filing a motion for judgment as a matter of law is a prerequisite for the making of a renewed motion for judgment as a matter of law after the trial.
46
Renewed Motion for Judgment as a Matter of Law
A renewed motion for judgment as a matter of law (formerly known as a “motion for judgment notwithstanding the verdict” or “JNOV”), may be filed no later than 28 days after the entry of judgment.
A renewed motion for judgment as a matter of law may ONLY be raised if a judgment as a matter of law was previously filed.
The motion will be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party.
A party is generally limited to those issues raised in the motion for judgment as a matter of law.
47
Motion for a New Trial
The court may, on motion, grant a new trial (on all issues or with respect to only certain issues or parties) for any of the reasons for which new trials have traditionally been granted, such as:
- An error made at trial that renders the judgment unfair;
- Newly discovered evidence that existed at the time of the trial was inexcusably overlooked and would likely have altered the outcome of the trial;
- Prejudicial misconduct of counsel, a party, the judge, or a juror;
- A verdict that is against the clear weight of the evidence;
- A verdict that is based on false evidence such that a new trial is necessary to prevent injustice; OR
- A verdict that is excessive or inadequate.
If the verdict is excessive, the court may order a new trial OR offer the plaintiff remittitur, which allows the plaintiff to choose between a lesser award or a new trial. “Additurs” are not permitted in federal court; the only option is a new trial.
48
Final Judgment Rule
The federal courts of appeals have jurisdiction over appeals from final judgments of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.
49
Res judicata
Res judicata provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action. To bar a claim under res judicata:
1) The original claim must have resulted in a valid final judgment on the merits;
2) The original and later-filed causes of action must be sufficiently identical (i.e., related to the same transaction or occurrence); AND
3) The claimant and the defendant must be the same (and in the same roles) in both the original and later-filed action, or privity exists between the parties in the original and later-filed action.
Res Judicata is limited to the parties and their privies; thus, a similar action by a different party would NOT be barred under res judicata.
50
Collateral Estoppel
Collateral estoppel precludes the re-litigation of issues of fact or law if its:
- same issue as a previous litigation
- issue must have been actually litigated
- the issue received a final judgment
- issue was essential to the judgment
51
Default Judgments
A default judgment is a ruling granted by a court that arises when one party to a suit fails to perform a court-ordered action, so the court settles the legal dispute in favor of the compliant party
52
interlocutory order
Provisional or temporary court order. Generally not appealable unless it:
An order granting, modifying, refusing, or dissolving an injunction;
An order appointing or refusing to appoint a receiver; AND
A decree determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.
53
Collateral Order Doctrine
The doctrine of collateral order allows a party to appeal interlocutory rulings (e.g., TROs) before a final judgment has been reached if the ruling decides a claim or issue:
- collateral to the case
- involving an unresolved legal question
- that would escape appeal following a final judgment
54
Mandamus Review
Under mandamus review, a court of appeals can immediately review an order that is an abuse of judicial authority (e.g., orders beyond the trial court’s jurisdiction, orders that violate a mandatory duty of the trial court, etc.). Such review does NOT extend to all orders that constitute an error of law.
MBE
flashcards
Decks in class (14)
# Cards
