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Fed. Civ Pro
Modules 12-21
| Question | Answer |
|---|---|
| Venue 28 USC §1391 (b) | 28 USC §1391 (b). In all cases where the federal court has valid subject matter jurisdiction venue is proper. In the district where any defendant resides, if all defendants are residents of the state in which the district is located or substantial portion |
| Venue 28 USC §1391 (b3) | Applies when the events giving rise to the claim occur outside of the United States. Remember that (b2) always provides for an alternative venue for events giving rise to claims in the US if (b1) does not work. |
| 28 USC §1391 (c) (d) Individuals | Natural persons, including foreign citizens with permanent residency status, "reside" in the district in which they have their domicile. Foreign corporations and foreign citizens "reside" in all judicial districts for purposes of venue. |
| 28 USC §1391 (c)(3) Corporations | A corp resides in any judicial district in which it is subject to pj w/ respect to the civil action in question. If there is more than one judicial district venue is proper in any district in which the contacts would support pj or district w/most contacts |
| Dismissal or Transfer (relating to Improper Venue) | Defendant can file a 12(b)(3) motion to dismiss for a lack of proper venue; court can dismiss the case or transfer in the interest of justice to a court that would have proper venue. §1406 |
| Dismissal or Transfer (relation to Proper Venue) | D can still file a motion to transfer to another US District Court or division for convenience of the parties and witnesses in the interest of justice (Smith v. Colonial Penn) §1404. |
| Doctrine of Transfer and Forum non Conveniens | doctrine that allows a court to decline jurisdiction over a case if it believes it would be more appropriately tried in another forum even if venue is proper. |
| Motion to Dismiss for Forum Non Conveniens | a court can dismiss even tho there is valid pj, subject matter jurisdiction, and proper venue when case has little or no connection w/ forum state and no other USDC that the case could be transferred to that would provide a more convenient forum |
| Inconvenient forum | this can occur even when a forum is proper and transfer or dismissal may be allowed. |
| Gilbert Factors | to determine when a case should be dismissed use and weigh private and public interest factors. Such as access to sources of proof, costs of bringing in witnesses, possibility of viewing the location, local interest, burden on citizens (jury duty), etc. |
| General Rule for Forum Non Conveniens | Fed. court can dismiss a case on the basis of an inconvenient forum when there is little or no contact with the forum state and there is no other district court that would provide a proper and convient forum |
| How is it determined if case is dismissed due to venue/forum non conveniens? | Balance the factors relating to the private interests of the litigants and public interest of the forum state. Plaintiff chooses the forum and is given deference. |
| The Erie Doctrine (28 USC §2072) Defined | when a federal court hears a case based on diversity jurisdiction, it must apply the substantive law of the state where the case arose, while applying federal procedural rules. only comes up when discussing diversity jurisdiction or supplemental jurisdic. |
| When/how to apply the Erie Doctrine | what law, state or federal law applies, only comes up when you are discussing diversity jurisdiction or a supplemental jurisdiction claim filed in federal court. Identify if there is a conflict between state and fed law and if it involves substan. or proc |
| Why to apply the Erie Doctrine | 1)to prevent forum shopping, 2)preventing different outcomes, 3)prevent discrimination against home state litigants and promote equal protection of the law |
| Erie Doctrine Analysis | 1)conflict between state and fed law?, 2)substantive or procedural law, 3)If substantive apply state law (Erie RR), 4)If procedural, apply fed or state law in some cases "mode and manner of conducting the litigation". |
| Substantive Law | law describing or defining the underlying cause of action. Ex; duty owed to a trespasser in Erie, elements of a claim, definition of adverse possession. |
| Procedural Law | law describing how to CONDUCT the litigation. Ex; how many days to file an answer, where is venue proper, etc. |
| Erie Railroad vs. Tompkins | "general" federal common law may not displace that of the states in areas in which the constitution rests lawmaking power in the states. Erie says federal courts respect that law of the states in diversity cases whether made by courts or legislatures. |
| Outcome Determinative Test | legal standard used to decide if state law should be applied in a federal court hearing a diversity case, based on if applying a federal rule instead of the state rule would significantly affect the outcome of the case then state law must be used |
| Rules Enabling Act | Authorizes the Supreme Court to prescribe general rules of practice and procedure and rules of evidence for the federal courts. Creates uniform rules for all judicial proceedings. |
| Guaranty Trust Co. vs. York | We derive the outcome determinative test from this case, a federal court, exercising jurisdiction based strictly on diversity of citizenship, must abide by any state legal rule that would be outcome determinative if held in state court. |
| Byrd v. Blue Ridge Rural Electric Cooperative | Byrd case reaffirmed York and Erie cases but added an additional consideration- ie even if the difference would or could be outcome determinative, countervailing federal policy could outweigh the application of state procedural law. |
| Hanna v. Plumer | court modifies outcome determinative test and Erie requires applying state substantive law in diversity cases, Erie was intended to prevent same-state forum shopping. |
| State Law vs. Federal Practice (York, Byrd, Hanna) | 1)Would fed practice affect the outcome of the litigation? (York) 2) application of the fed p likely product forum shopping, or inequitable application of the law. (Byrd) |
| State Law vs. Federal Rules/ Statutes (Hanna) | 1)does rule or statute regulate "practice and procedure"? 2)Rule or statute constitutional (always yes), 3)does rule or statute "abridge , expand or modify" a state substantive right? if yes then state law applies if no then fed law applies |
| How many steps are there in the Erie Doctrine Analysis? | 4 steps |
| Pleadings (FRCP Rule 7(a)) | Rule 7(a) defines the term to include the complaint, the answer and some other initial papers in a lawsuit. Rule 7 (b) distinguishes between pleadings and motions with pleadings being any formal documentation w the court like a petition. |
| Demurrer | Rule 12 (b)(6). Does two things: 1)it admits for the purposes of the motion all the facts alleged in the complaint and 2)even if all the facts alleged are true, law grants plaintiff no legal remedy for it. |
| Plausibility Standard Defined | a complaint must meet this standard; a claim is plausible on its face when the plaintiff pleads factual allegations that allow the court to draw the reasonable inference that the defendant could be liable for misconduct (Twombly & Ashcroft) |
| Twombly case | derive the plausibility standard from this case and Ashcroft expands on it. Conclusory allegations must be disregarded. Claim is plausible on its face when the P pleads factual allegations that allow court to draw reasonable inference D could be liable |
| Ashcroft case | Reaffirms the Twombly case and standard derived from it, must be more than a mere possibility must be plausible based on factual allegations alleged. |
| FRCP Rule 8 | complaint must state the relief or remedy requested and court can dismiss the case if the plaintiff does not have it in the complaint. lays out the (3) general rules of the essential elements of a pleading. |
| Substitutionary Remedies | compensatory damages, money that reimburses and compensates for the plaintiffs loss. |
| Specific Remedies | injunctive relief, which requires parties to take a certain action or refrain from a certain action. |
| Special Damages | also known as economic or hard damages. Damages which can name a precise figure of money including medical expenses, lost income from work, etc. |
| General Damages | also known as noneconomic or soft damages. Include things like pain and suffering, emotional distress, harm to reputation, humiliation, things u cannot put an exact dollar amount on and is based on evidence/proof and largely subjective |
| Injuction | a court order that requires a person or entity to either start or stop a specific action. Must prove to the court the moving party will 1)suffer irreparable harm if injunction is not granted, 2)balancing interests of the parties, 3)public interest |
| Preliminary Injunction | granted at the outset of the litigation before the case is heard in court. Show there is a likelihood that moving party will prevail on the merits of the case in the end. Might ask for one when its in best public interest or suffer irreparable harm. |
| Compensatory Damages | intended to redress a plaintiffs concrete loss. Compensating victim for harm that has been suffered in the past, also referred to as actual damages. |
| Punitive Damages | damages to punish the plaintiff or deter from dangerous behavior. Courts will grant these type of damages when court determines D acted in a specific bad manner. |
| Declaratory Relief | When neither damages or a specific remedy can solve the issue. FRCP Rule 57. asked for when 1)plaintiffs audience is a third party, 2)p may be fairly certain D will comply w law as soon as it has been declared, 3)party may want to be first to tell story |
| Temporary Relief | Three varieties of temporary remedies: 1)preliminary injunction, 2)restraining order, 3)ex parte TRO (dramatic form of a temp. restraining order) |
| Gore 3 Guideposts | Guideposts: 1)degree of reprehensibility of the D's misconduct, 2)disparity between actual and potential harm suffered by the P and the punitive damage award, 3)difference between the punitive damages awarded by the jury and civil penalties authorized |
| Gore 5 Factors | 1)is harm physical or economic, 2)repeated actions, 3)malice intentions, 4)health/safety risk to others, 5) is the target of the conduct financially vulnerable ppl |
| FRCP 7 | States the pleadings allowed, motions and other papers. A complaint, an answer, or a reply to a counterclaim. Puts parties on notice of the claims and defenses against them. |
| FRCP 8 Elements | 1)complaint must contain a short & plain statement as to grounds for subject matter jurisdiction, 2)short & plain statement of the claim itself, 3)demand for the relief sought. In sum must include brief straight forward simple sentences of cause of action |
| FRCP Rule 11 | A D's attorney must sign documentation, make reasonable inquires, spend time investigating and can be sanctioned if they violate any rules set forth in this rule. |
| FRCP Rule 12 | Defenses and Objections. Once this is filed D has 14 days to file an answer. All of these objections must be made in one motion cannot file separately unless there is an amended pleading. Must use "then available" to you at outset of the case. |
| What does Gore do ? | Gore and its factors make sure that punitive damages awards are not excessive compared to the actual harm caused by the defendant to the plaintiff. |
| Responding to the Complaint (3 options) | Three options to respond to a complaint: 1)default judgement, 2)pre-answer motion, 3)answer. |
| FRCP Rule 15 | Amended and Supplemental Pleadings. 21 days to amend, and response to a amended pleading must be made within the original time period or within 14 days after service of the amended pleading whichever is later. |
| Amended Pleadings | Change to a pleading. Have 21 days to amend a pleading and response to an amended pleading must be made within original time remaining to respond or 14 days whichever is later. FRCP 15. |
| How many days does a party have to amend a pleading once as a matter o f right? | 21 days as a matter of right. |
| Relation Back Amendments Defined | When an amendment relates back to the original pleading as if it were part of the original pleading. |
| Foman Factors | Factors to determine if the amendment can relate back to original pleading or not. They consist of bad faith on moving party, undue delay, neg. impact on judicial economy, futility of the amendment, and failure to cure deficienies through previous amends. |
| Steps for determining Relation Back Amendments | 1)does statute of limitations allow for relation back, 2)amend. asserts a claim or defense that arises out of same transaction or occurrence as original pleading and 3)amendment change the name(s) of party against whom a claim is asserted |
| FRCP 18 | Joinder Generally. Parties and claims may be joined in a single suit. |
| FRCP 19 | Compulsory Joinder. Parties MUST be joined if it would prevent the other party from getting relief, impair ability of missing party to protect their interest, or subject any party to multiple liability or inconsistent obligations. |
| FRCP 20 | Permissive Joinder. Parties CAN be joined if asserting relief for things arising out of the same transaction or occurrence and any questions of law or fact common to all plaintiffs will arise in the action. |
| FRCP 14 | Impleader. Defendant brings in a third party to allege that they are liable for all or part of plaintiffs claims. Common imp leader actions include contributory negligence and contract claims. |
| FRCP 13 | Counterclaims and Crossclaims. Permissive and compulsory counterclaims and crossclaims against the opposing party generally. |
| FRCP 22 | Interpleader. Allows third party to bring in multiple claimants before a court to determine who is entitled to a claim and allows party to avoid double liability and multiple lawsuits. |
| Permissive Claims | D brings counterclaims unrelated to P's claim and must meet criteria for SMJ/ supplemental jurisdiction in order to be added/heard. |
| Compulsory Claims | Claim must already have been deemed to arise out of the same transaction or occurrence as the underlying federal claim; supplemental jurisdiction is already met. Faces dismissal if claim is not raised. |
| FRCP 16 | Pretrial Conferences. Scheduling conference must be held within 60 days after D has filed an answer or 90 days after service whichever is earlier. |
| How many interrogatories can be served on a party w/o court permission? | 25 and then must ask for court permission to serve more. |
| What are interrogatories? | Written questions that must be answered in writing under oath and have some benefits like cheaper than depositions. Can be used at time of trial. Answer within 30 days of receipt. |
| What are Depositions? | Oral questioning of a party or witness. Can be used at time of trial. Limited to one day up to 7hrs. 10 depositions for each party before you have to seek court permission for more. |
| When does Discovery take place? | Two phases of discovery. Occurs after D files an answer and before going to trial. Parties may be required to disclose certain info to other party. |
| Relevance of evidence requires what? | Reasonably calculated to lead to admissible evidence directly related to the claims or defenses raised. |
| FRCP 30 | Depositions. Oral questioning of a party or witness. up to 10 w/o seeking further court permission. Limited to one deposition up to 7hrs a day but court can grant more depositions at partys request. |
| Involuntary Dismissal | This does to P's what defaults do to D's. D can see to dismiss a case if P fails to prosecute the case--has not done anything after filing the lawsuit to get it moving in court. Rule 41 (b). |
| Scheduling Order | Judge must issue this order under Rule 16 (b). Limits the time to join other parties, amend the pleadings, complete discovery, and file motions and set other dates. |
| Voluntary Dismissal | Rule 41 (a)(1) allows a P to dismiss the case any time before the D answers and permits the P to dismiss a suit anytime if all parties agree (usually settlement agreements instigate this in happening) |
| Summary Judgment | Rule 56 (a). Last mechanism to attempt to not go to trial. MSJ is based on the pleadings and underlying evidence gathered with attached depositions, transcripts, affidavits, etc. Must show no issue of material fact and no jury would find otherwise. |
| Aggregation of claims: | Means to combine claims into a single lawsuit. Each claim alone must met AIC for diversity (+$75,000). Allowed if claim being asserted by multiple defendants is for recovery if jointly liable. |
| "plaintiff is the architect of the litigation" | Can say this line whenever it applies to the plaintiff having the ability to control the litigation such as in removal, initial forum choosing. |
| safe harbor period for Rule 11 | Opposing counsel must wait 21 days to see if challenged paper is corrected or withdrawn before imposing Rule 11 sanctions against attorney/client. |
| Warranty | legally binding promise or assurance made by a seller regarding quality, condition, or fitness of a product seller is selling. Breach can allow for civil suit in court. Express and implied warranties. |
| Disclosures | Parties must disclose info to other party. Within 14 days of the scheduling conference the parties must make the required disclosures set out in Rule 26 (a)(1). |
Created by:
kfott783
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