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Civil Procedure (Pleadings (The defendant must file a responsive motion or…
Civil Procedure
Pleadings
- The initial pleading must contain sufficient facts to place the adversary on notice of plausible claims.
- A claim of relief must include a short plain statement of the jurisdiction, a statement of a claim that would entitle the claimant to relief, and a demand for relief.
- A party may set out alternative claims and make inconsistent claims or defenses.
Plaintiff may amend its complaint once as of right within 21 days of service upon the defendant.
- After that, plaintiff must file a leave to amend, which is granted freely by the court when justice requires.
The defendant must file a responsive motion or an answer (which ever is filed first is considered the first responsive pleading)
- The defendant has 21 days (including holidays and weekends) from the date of service of the complaint to file its first responsive pleading.
- if the 21st day falls on a holiday or weekend, the first responsive pleading must be filed on the next business day.
Rule 12(b) defenses must be filed within the first responsive pleading (if not, these defenses are waived):
- Lack of personal jurisdiction
- insufficient service of process or insufficient process
- Improper venue
- Failure to state a claim
- Failure to join an indispensable party
Rule 12(b) includes the defense of lack of SJ (but this can be raised at any time, is never waived, and can be raised by the court).
If defendant does not file a motion to dismiss or if the motion is denied, it must file an answer that must fairly and precisely admit or deny every allegation in the complaint.
- in addition, the answer must include the previous 12(b) defenses and all affirmative defenses or they are waived.
Affirmative defense under Rule 8(c)(1) include:
- accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; licenses; payment; release; res judicata; Statute of Frauds; statutes of limitations; and waiver.
The plaintiff may join parties to the same lawsuit if the claims involving those parties derive from the same transaction or occurrence or at least the same series of common transactions or occurrences.
- Plaintiff must join indispensable parties where there would be prejudice to any parties' right to a full and fair adjudication, including leaving an existing party subject to substantial risk of incurring multiple inconsistent obligations.
-The plaintiff may join as many claims as they have against a defendant regardless of whether there is any connection between those claims.
Three I's:
1) Impleader - Defendant may bring in a third party if that party may be liable to Defendant for all or part of Defendant's liability to plaintiff.
2) Interpleader - The holder of a common fund may file a lawsuit as a plaintiff and join as defendants all rival claimants to its common fund.
3) Intervention - a non-party moves to enter into a lawsuit.
- As of right: Non-party's interest will be adversely affected by the lawsuit, and that right is not protected by the parties.
A defendant may bring a counterclaim against the plaintiff.
- if it arises from the same transaction or occurrence, then it must be bought in that action and is called a mandatory or compulsory counterclaim.
- failure to bring a mandatory counterclaim results in waiver of that claim.
Cross-claims may be brought by any party against any co-party when the claim arises out of the same transaction or occurrence as the original claim or counter claim.
- The court has subject matter jurisdiction under supplemental jurisdiction for compulsory counterclaims and cross-claims if they arise out of the same transaction or occurrence in the absence of an independent basis for jurisdiction.
- If a claim is only a permissive counterclaim, the no supplemental jurisdiction exists, and independent grounds for federal jurisdiction must exist.
Class actions are actions in which a named plaintiff represents a class of commonly-situated absent plaintiffs.
The certification requirements for class actions can be remembered by the acronym CANT:
- Commonality - there must be common issues of fact or law including common claims and common injuries
- Adequacy - the named plaintiff and class counsel lawyers must fairly and adequately represent the class.
- Numbers - the class must be so numerous that joinder of them all would be impracticable (at least 40)
- Typically - the claims of the named plaintiff are typical of the class.
Additional requirements are predominance and superiority:
- common question must predominate over individual questions with class representation superior to other methods of adjudicating the controversy.
- Constitutional requirements include notice to the class and a chance to opt out if the claim involves money.
Jurisdiction
Subject Matter Jurisdiction:
- State courts have general jurisdiction while federal courts have limited jurisdiction.
- Each claim brought in federal court must have an independent basis for jurisdiction.
Federal subject matter jurisdiction: 1) Federal Court has jurisdiction if the claim arises under federal law or is created by state law but depends on a substantial federal question, usually a constitutional question. (federal question jurisdiction) (28 U.S.C. 1331)2) Federal courts also have jurisdiction on diversity jurisdiction, where the amount in controversy is over $75,000 (diversity jurisdiction) (28 U.S.C. 1332)
- complete diversity means that no single plaintiff may be a citizen of the same state as any single defendant.
Supplemental jurisdiction (28 U.S.C. 1367):
- a federal court has discretion to consider a pure state law claim if there is a common nucleus of operative facts between the state law claim and the federal claim.
- If the claim is based on diversity jurisdiction, then only claims involving diverse parties may be added provided they arise from a common nucleus of operative facts, although they do not need to have their own $75,000 in controversy.
Removal:
- Defendants in state court may remove an action to federal court that geographically embraces the state court if the federal court would have jurisdiction, all defendants consent, and a notice of removal is filed within 30 days of the service of the state court complaint.
- notice must be served on all plaintiffs and the state court
- When the basis of SJ is diversity of citizenship, no removal is allowed if any defendant is a citizen of the state where the action is pending.
- if federal jurisdiction does not exist, the plaintiff can seek a remand back to state court within 30 days of filing of the notice of removal.
Personal Jurisdiction:
- exists if the court has in personam jurisdiction over the parties, in rem jurisdiction over property that is the subject of the claim, or quasi in rem jurisdiction over property that is attached to satisfy the judgement in the action.
- Plaintiff must establish personal jurisdiction over each defendant.
- Objections to personal jurisdiction must be brought in the first responsive pleading or they will be waived
- In personam jurisdiction exists if a person is located within the state by either domicile or service. - domicile exists if the person reside within the state and has expressed the intent to remain there indefinitely
- if the defendant is served with process while in the forum state, in personam jurisdiction exists even if his presence is temporary and eve if his presence is unrelated to the lawsuit.
- in personam jurisdiction also exists if the person consents to jurisdiction (consent can be express, implied, or waived).
- in personam jurisdiction also exists over nonresidents thorugh the operation of state's long-arm jurisdiction even if the did not consent (generally, transacting business within the state, entering contracts within the state, and committing a tortious act within the state).
Personal jurisdiction through in rem jurisdiction is based on the parties' interest in a particular piece of property located within the state.
Quasi in rem jurisdiction exists in actions involving attachment of real or personal property as a part of the relief requested.
- a minimum contacts analysis is also required for quasi in rem jurisdiction.
Minimum Contacts:
- consider purposeful availment and foreseeability
- Purposeful availment means that the defendant purposefully availed itself of the laws of jurisdiction.
- Foreseeability means that the defendant reasonably anticipated that it could be hauled into court in the jurisdiction for its actions.
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Service of process is proper if the method of process follows the forum's rules and the method is constitutional.
- service is not required for the action to be considered commenced, but must occur within 120 days of filing of the complaint.
Proper methods of service include:
- Abode service
- Waiver
- Agent service
- Sate methods
- personal service
Venue operates as a limit on a plaintiff's choice of where to file.
- Venue is governed by 28 U.S.C 1391.
- even if a court has subject matter and personal jurisdiction, the plaintiff must also bring its claim in the proper venue.
Venue is proper:
- where any defendant resides, if all defendants reside in the same state;
- in the federal district where a substantial part of the claim arose or where the property is located; or
- where the defendant can be found provided the court has personal jurisdiction, if there is no other district in which the action may otherwise be brought.
- If a motion for improper venue is not raised in the first responsive pleading, then the defense is waived.
- If a defendant would prefer a different venue, even though the current venue is proper, then the remedy is to file a motion for transfer.
- A motion for transfer is based on the doctrine of forum non conveniens (for the convenience of the parties and witnesses and in the interest of justice, a district court may transfer a civil action to any other district court where the action might have been brought).
- Substantial deference is given to the plaintiff's choice of forum.
Motions
Summary Judgement:
- Filed within 30 days after close of discovery.
- May be granted if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.
- Movant must produce evidence t o support each element of the cause of action.
Judgement as a matter of law:
- Made at the close of the opponent's case.
- The grounds are that there is a legally insufficient evidentiary basis from which a reasonable jury could find for the non-moving party.
Default judgement:
- Entered against a defendant who failed to respond to the complaint in a timely manner.
Post trial motions:
- Renewed motion for judgement as a matter of law
- Formally called a judgement notwithstanding the verdict, the motion is made within 28 days of judgement
- The basis of the motion is identical to that made at the close of the opponent's case
- Motion for new trial
- Made within 28 days of judgement
- granted in the court's discretion if either the errors at trial affected the parties' substantive trial rights or the verdict was against the manifest weight of the evidence.
Discovery
Mandatory disclosures are required within two weeks of the initial discovery conference.
Mandatory disclosures are:
- All supporting witnesses
- All supporting documents
- A damages computation
- Relevant insurance coverage
Traditional means of discovery are:
1) Depositions
2) Interrogatories
3) Request for admissions
4) Production of documents
5) Request for physical or mental examination
The scope of discovery is relevant information that is not privileged and it need not be admissible at trial.
- parties can object to the requests for discovery or request a protective order
Work-product doctrine (privilege), covers any material that an attorney or someone at her discretion prepared for litigation and was not in the ordinary course of business.
- if the material includes an attorney's mental impressions, it is never discoverable.
- all other form of work product are discoverable only with a showing of substantial need and undue hardship.
Perclusion
- Preclusion means that parties are barred from relitigating claims or issues that hey have already fully and fairly litigated to a final judgment on the merits.
Re judicata or claim preclusion means that a claim cannot be relitigated if the claim arises between the same parties or those in privity with them; it arises out of the same transaction or occurrence; and that the court determined the claim on the merits and but proper subject-matter and personal jurisdiction.
- Res judicata is an affirmative defense that is waived if not asserted in an answer.
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Appealability and Review
A judgement is appealable when it is a final order entered by a lower court.
- The party seeking to appeal must file its notice of appeal within 30 days from the entry of the judgement.
-A final judgement is one that disposes of all issues as to all parties.
Within one year of a judgment, a party can file a motion for relief from a judgement.
- The requirements can be remembered by the acronym MEND:
- Merit
- Equity
- New facts
- Due diligence
Jury Trial
- A party has a constitutional right to a jury trial if its claim primarily seeks monetary damages.
- The party must file a written demand within 14 days of service of the complaint.
- Each party is entitled to strike potential jurors for cause.
- Each party is also received three preemptory challenges that may be used to strike jurors without cause