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Fed Civ Pro MO BAR

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					FED CIV PRO – CRIB SHEET

  I.   JURISDICTION
          a. Subject Matter Jurisdiction – Can never be consented to by parties & objections cannot be waived.
                   i. Federal Question JX
                           1. Arising Under: A law (i) created by Federal Law, or (ii) state law which depends
                               on a Federal constitutional issue.
                  ii. Diversity JX – each plaintiff from all defendants + >$75k+ in controversy
                           1. State law in Federal Court – Erie
                           2. Determining citizenship
                                    a. Individuals – domicile
                                    b. Corporations – state of incorporation & where the PPB is
                                    c. PC, LLC, PSHIP, etc. – State where any member is domiciled
                           3. Complete diversity = No π or Δ can share the same citizenship.
                           4. Amount of Controversy – must exceed $75k not just be $75k on the nose.
                                    a. Π’s G.F. viewpoint of the damages governs here. The value of relief
                                        need exceed the statutory limit, injunctions can be worth more than
                                        $75k.
                 iii. Supplemental JX
                           1. If there are two claims, one covered under federal jurisdiction, and the other not,
                               then the Fed. Ct. can hear both as long as they come from a common nucleus of
                               facts.
                                    a. Exception – If the only basis is diversity, π’s cannot use supplemental
                                        JX to bring in additional claims against non-diverse parties.
                                              i. Δ’s can bring in additional claims against non diverse parties
                                                  even if the only basis of jurisdiction is diversity.
                                             ii. Π’s can bring in more non-diverse parties if it is arising under
                                            iii. Π’s can use supplemental JX to bring in additional claims
                                                  against diverse parties, even if the additional claims do not
                                                  exceed $75k.
          b. Personal Jurisdiction
                   i. Methods of obtaining jurisdiction:
                           1. Consent
                                    a. Express by consent to JX. Think Ks.
                                    b. Implied – Δ fails to object to personal JX in the first response.
                           2. Presence
                                    a. Actual, voluntary presence of a Δ in the state served w/ direct process.
                                    b. Domiciled in state and plans to return (constructive)
                                    c. Doing business, regular, systematic & continuous (minimum contacts)
                           3. Statutory Authorization (Long Arm statutes)
                  ii. Constitutional Concerns
                           1. Contact (personal availment and forseeability)
                           2. Related
                           3. Fairness
 II.   SERVICE OF PROCESS
          a. Requirements:
                   i. Server’s can be non-parties at least 18-years old
                  ii. Process must be a proper method by (i) forum’s rules and (ii) constitutional.
          b. Methods: A.W.A.S.P.
                     i. Abode Service – Leaves summons @ Δ’s last residence with someone of suitable
                        age/discretion. (Teen = ok).
                    ii. Waiver - π mails the complaint to Δ w/ request that Δ waive, and he does.
                   iii. Agent – Make personal service to authorized agent of Δ.
                   iv. State methods – Fed Ct. may borrow any method in the state it sits for service.
                    v. Personal Service – hand delivery.
III.   VENUE
          a. Proper where: (i) any Δ resides, or (ii) also, in a federal district where a substantial part of the
             claim arose or the property in dispute is located.
          b. Remedy for improper venue: Motion to Xfer venue. (Will be granted at Cts. Discretion).
IV.    REMOVAL AND REMAND
          a. Δ’s may remove an action from state court to federal court that geographically embraces the state
             court by – both parties consenting to filing a notice of removal within 30 days of the service of the
             state complaint.
          b. Π’s may file a motion to remand the action back to state court within 30 days of the filing of the
             notice of removal, and, in any case the federal court must remand back if: there is no federal JX on
             the claims raised.
          c. EXCEPTIONS: if only basis is diversity then no removal if: notice is filed more than one year
             after the OG state court action AND if any single Δ is a citizen of the state where the action was
             filed.
 V.    FEDERAL AND STATE COURT RELATIONS – ERIE DOCTRINE
          a. Choice of law:
                    i. Federal Statue applied by state court about FRCP, FRE or Trial by Jury then Fed law.
                   ii. No Federal Statute – state law governs where the federal law is different and where
                       federal law would affect the outcome of the case.
                  iii. State law governs unless: 1) Fed. Statute, 2) Fed. Rule, or 3) Trial by Jury.
          b. Full Faith & Credit – valid judgments entered by a fed or state ct. must be recognized & enforced
             by every other federal and state court.
          c. FED CTS. CANNOT ENJOIN – pending state ct. actions, state tax proceedings, criminal
             prosecutions.
          d. Abstenation – Fed. Ct. will refrain from interpreting state law or determining state constitutional
             issues out of deference, and may stay their action pending state ct. actions.
          e. Provisional Remedies:
                    i. TRO – Emergency order by a court for up to 14 days to preserve the status quo.
                            1. Notice: can be excused if it would be impractical to prevent the harm.
                   ii. Preliminary Injunctions: only upon notice to maintain status quo pending a trial on the
                       merits. More than 14 days.
VI.    PLEADINGS
          a. Complaint requirements:
                    i. Sufficient facts to place the adversary on notice of plausible claims. Federal courts may
                       also require more particularity.
          b. Responsive Pleadings:
                    i. Responsive Motions: Must be raised in the 1st responsive pleading or waived!
                            1. Motion to dismiss for lack of personal JX,
                            2. Motion to dismiss for improper service of process,
                            3. Any motion challenging venue.
                   ii. Answers: must fairly and precisely admit or deny every allegation or it is admitted.
                  iii. Affirmative Defenses: must appear in the answer or it is waived.
VII.   AMENDMENTS OF PLEADINGS
            a.Generally – encourage amendments. Π may amend 1 time as a right within 21 days of its service.
              After that, leave to amend can be granted freely by the court to do justice and serve the merits.
           b. Relation Back of Amendments to Conform to the SoL period.
                     i. New Claims – an amendment adding new claims can only work if the new claims derive
                        from the same transaction or occurrence as the earlier filed timely claim.
                    ii. New Parties – New parties can be added if both:
                              1. Arising from the same occurrence; and
                              2. New party must have acquired knowledge that, but for a mistake in name, it
                                  would have been sued. Party must have acquired knowledge within 120 days of
                                  the earlier filing.
VIII.   PROPER PARTIES AND CLAIMS
           a. Joinder
                     i. Claims: π may join as many claims as it has against Δ regardless of connection.
                    ii. Parties: you may join parties to a lawsuit, if the claims are from the same transaction(s)
                   iii. Counterclaims: a Counterclaim is filed by Δ against πs.
                              1. Permissive Counterclaim – does not arise from the same transaction(s), but can
                                  be filed if the Δ wants to. It need not be though.
                              2. Compulsory Counterclaim – derives from the same transaction(s) as π’s claim
                                  and must be filed or waived.
           b. Impleader – 3P claims. Δs may implead a brand new claim against a brand new 3P if that 3P may
              be liable to Δ for all or part of its liability to π.
           c. Interpleader – Holder of a common fund may file a lawsuit as π and join as Δ’s all rival claimants
              to its common fund. (Note – “minimal diversity” is enough).
                     i. Minimal Diversity = $500+ is enough and if 2 rival claimants are diverse, this is enough.
           d. Intervention – Act of a non-party in money to intervene in an ongoing lawsuit.
                     i. As of Right – The intervenor has a right if they have an interest which as a practical
                        matter, will be adversely affected by the lawsuit and not protected by the current parties.
                    ii. Permissive – The judge can allow intervention if there is commonality of issues b/t those
                        at bar and those affecting the intervenor.
           e. Indispensible Parties – Parties must be joined if their absence would be prejudicial to any part’s
              right to a fair and full adjudication.
                     i. If nonparty cannot be joined because of no JX of the other party or claims, the court must
                        decide in “equity & good conscience” whether to dismiss for the failure to join an
                        indispensible party.
           f. Class Actions – named πs represent a class of commonly situated, absent plaintiffs.
                     i. Class Action Fairness act – 100 or more πs who seek $5M+ if any π is from a different
                        state than any single Δ. Super easy to get JX.
                    ii. Certification of a class requires: C.A.N.T.
                              1. Commonality of issues
                              2. Adequacy of representation of πs
                              3. Numerousity – joinder would be impracticable (40+ πs)
                              4. Typicality between claims of the class
                   iii. Supermajority consent of issues > individuality.
                   iv. Class must get notice and chance to opt out of the action.
 IX.    DISCOVERY
           a. Case management: Fed. Ct. must hold a scheduling conference and pretrial conference.
           b. Discoverable if:
                     i. Method of discovery is proper; and
                    ii. The material sought is within the proper scope.
           c. Method:
                    i. Automatic prompt disclosure and mandatory discovery planning.
                             1. All potential witnesses, all relevant supporting documents, damages
                                   computation, relevant insurance coverage.
                   ii. Presumptive limits on traditional methods
                             1. Deposition: is the only device used on a non-party.
                             2. Request for Physical/Mental exam: only method requiring a court order
                             3. E-DISCO – Need not produce E-stored data if burden/expense too high, but Ct.
                                   may order production upon good cause shown.
                  iii. Duty to supplement – Continue to update the prior disclosures as available.
          d. Scope: relevant & not privileged.
                    i. Relevant – need not be admissible at trial
                   ii. Not Work Product
                             1. Atty’s mental impression
                             2. All other forms – not discoverable unless substantial need + undue hardship
                                   shown.
          e. Sanctions
                    i. Failure to respond – move to compel & receive fees and costs of the motion.
                   ii. Failure to disclose Automatically – cannot withhold.
                  iii. Violation of Ct. order, bar a party from presenting evidence, claim or defense.
 X.    MOTIONS & TRIAL BY JURY
          a. MSJ – Up to 30 days after discovery has closed, this motion can be filed & granted if, there is no
              genuine issue of material fact, becomes proper as a matter of law.
          b. JML – After the adverse party rests, this motion can be made & will be granted if there is legally
              insufficient evidentiary basis from which a reasonable jury could find for the non-moving party.
          c. JNOV – Judgment despite verdict. Within 28 days of judgment, the loser may file if it has made
              an original JML before deliberations.
          d. Motion for New Trial – Within 28 days of a judgment, loser files motion which will be granted in
              court’s discretion for either errors at trial affecting party’s substantial trial rights, or verdict against
              manifest weight of the evidence. (VERY RARE)
          e. Trial By Jury
                    i. Right – must demand it within 14 days of service of complaint or answer. Constitutional
                        right if the claim seeks primarily monetary damages.
                   ii. Preemptory challenge – 3 challenges for no reason.
XI.    JUDGMENTS
          a. Offer of Judgment – Δ may serve upon π a formal offer of judgment, when not accepted may
              result in sanctions if the π does not do better than the offer, the π must pay Δ’s costs from that
              point on.
          b. Default Judgments – affirmation against Δ’s who fail to respond in a timely manner.
                    i. If the damages are certain, π just files an affidavit with the court requesting judgment.
                   ii. If not certain damages, π must show at hearing and Δ is given 7 days notice to contest.
                  iii. Vacate Default Judgment if within a reasonable time of judgment will be granted for
                        good cause shown.
          c. Motion for Relief From Judgment (within 1 year of the judgment)
                    i. Merit – was merit to claim or defense,
                   ii. Equity – bad form to let it stand, fraud issue maybe
                  iii. New facts arose since judgment.
                  iv. Due diligence despite cannot get facts until after the default judgment was entered.
XII.   FINALITY
            a.Res Judicata – Claim which has been fully and fairly litigated cannot be relitigated. AKA Claim
              Preclusion.
           b. Collateral Estoppel – Issue Preclusion.
           c. Finality Rule – The parties are barred from relitigation of claims or issues which they have already
              fully and fairly litigated on a full judgment on the merits.
           d. Offensive Collateral Estoppel – Later plaintiffs can use the judgment in the same issues against a
              defendant again.
XIII.   APPELLATE REVIEW
           a. Jurisdiction – Only courts of appellate jurisdiction have power over appeals.
                    i. Rule – may review only final orders entered by lowerct.
                   ii. Exceptions
                             1. Partial Final Order – resolving some, but not all claims.
                             2. Discretionary appeals of interlocutory orders, if trial and appellate find:
                                       a. Doubt
                                       b. Controlling legal issue
                                       c. Appellate review will advance litigation
           b. Time requirements – file a motion in the lower court, within 30 days of the entry of a judgment or
              order which you are appealing.

				
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