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Bar Prep > 06. Civil Procedure > Flashcards

06. Civil Procedure Flashcards

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1
Q

What is the home-court-advantage rule?

A

A rule that prohibits removal from state to federal court when:
1) The federal court’s SMJ arises from diversity jurisdiction; AND
2) A defendant is a citizen of the state where the case was filed

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2
Q

When is the defense of lack of personal jurisdiction waived?

A

When it is not asserted in a pre-answer motion or an answer, whichever occurs first

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3
Q

When does specific jurisdiction exist?

A

1) The plaintiff’s claim arises from the defendant’s minimum contacts with the forum state; AND
2) The exercise of jurisdiction would comply with notions of fair play and substantial justice

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4
Q

How is personal jurisdiction established?

A

1) General jurisdiction
2) Specific jurisdiction

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5
Q

For federal question jurisdiction, where is venue proper?

A

Venue is proper in any federal district where:
1) Any defendant resides, as long as all defendants reside in the same sate;
2) A substantial part of the events occurred or a substantial part of the property at issue is located; OR
3) Any defendant is subject to the court’s personal jurisdiction (if the first 2 don’t apply)

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6
Q

What items must an answer include?

A

1) Admissions and denials
2) Motions that have not been waived
3) Affirmative defenses
4) Compulsory counterclaims

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7
Q

What happens if a required item is not included in an answer?

A

The items not included are waived

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8
Q

What must the court do when considering a motion to dismiss for failure to state a claim?

A

1) Treat all well-pleaded facts in the complaint as true; AND
2) View the evidence and draw all reasonable inferences in the light most favorable to the nonmovant

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9
Q

When may a federal court exercise supplemental jurisdiction over claims that fall outside of its original SMJ?

A

When those claims share a common nucleus of operative facts with a claim that falls within its original SMJ

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10
Q

When should summary judgement be granted?

A

When the movant shows that:
1) There is no genuine dispute as to any material fact; AND
2) The movant is entitled to judgement as a matter of law

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11
Q

What is required for a jury verdict?

A

1) Verdict must be unanimous
2) Verdict must be returned by at least 6 jurors (but no more than 12)

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12
Q

When may the traditional requirements for a jury verdict be altered?

A

When the parties stipulate to any changes (i.e., not requiring unanimous verdict)

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13
Q

What is collateral estoppel?

A

Issue preclusion = precludes the relitigation of an issue that was actually litigated, determined, and essential to a valid final judgement on the merits

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14
Q

What is mutual collateral estoppel?

A

Parties from first action assert collateral estoppel in subsequent action against other parties from first action

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15
Q

What is nonmutual collateral estoppel?

A

Nonparties from first action assert collateral estoppel in subsequent action against parties from first action

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16
Q

What is defensive collateral estoppel?

A

Defendant in second action asserts to avoid relitigating issue from first action

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17
Q

When is offensive collateral estoppel NOT permitted?

A

1) Plaintiff could have easily joined first action
2) Defendant had little incentive to vigorously defend in first action
3) Second action affords procedural opportunities unavailable in first action; OR
4) Inconsistent findings on issue exist

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18
Q

What is offensive collateral estoppel?

A

Used by a plaintiff in the second action to establish an issue from the first action

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19
Q

How may a settlement of a federal class action be approved?

A

1) Approval by the court
2) AFTER the court holds a hearing AND
3) Issues findings that the settlement is fair, reasonable, and adequate

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20
Q

What types of matters may a federal court NOT take, even if diversity is met?

A

1) Probate matters
2) Domestic relations

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21
Q

Where is venue proper for a foreign citizen?

A

Any federal judicial district

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22
Q

What happens if a poll reveals a jury verdict is unanimous?

A

Enter judgement consistent with verdict

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23
Q

What happens if a poll reveals a jury verdict is NOT unanimous?

A

Direct further deliberation OR order new trial

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24
Q

How is domicile for an individual changed?

A

1) Establish a physical presence in a new place; AND
2) Manifest an intent to reside there indefinitely

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25
Q

What type of issue is jury selection?

A

Procedural = federal law controls

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26
Q

What type of law is applied under federal-question jurisdiction?

A

Federal procedural & Federal substantive law

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27
Q

When may a federal court grant a preliminary injuction?

A

1) Success = Movant is likely to succeed on the merits
2) Irreparable Harm = Movant is likely to suffer irreparable harm in the absence of relief
3) Balance = The balance of equities is in the movant’s favor
4) Public Interest = The injunction is in the best interests of the public

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28
Q

May interrogatories be served on nonparties?

A

No; interrogatories are a method of discovery in which a party serves written question on another party, not a nonparty (e.g., expert witness)

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29
Q

How may a party demand a jury trial (under FRCP 38)?

A

1) Issue = Have a triable issue (any legal claim where the amount in controversy exceeds $20)
2) Service = serve the other parties with a written jury trial demand no later than 14 calendar days after the last pleading
3) File = filing the jury trial demand with the court within a reasonable time after service of the demand

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30
Q

What type of service is required if a defendant’s identity and address are known or obtainable through reasonable efforts?

A

Personal service or some other means likely to notify the defendant

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31
Q

When may a party NOT conduct an oral deposition without the court’s leave or the parties’ stipulation?

A

1) Ten = the deposition exceeds the 10-deposition limit
2) Early = the deposition is sought before the initial planning conference
3) Done = the deponent was already deposed in the case

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32
Q

When may an immediate appeal be available (under the interlocutory appeals statute)?

A
  • I = Injunction
  • C = Certification by district court
  • C = Class action certification
  • A = Appointment of receiver
  • A = Admiralty cases
  • C = Collateral-order doctrine
  • B = Bankruptcy cases (certain orders)
  • M = Mandamus (petition for writ)
  • P = Patent-infringement order (accounting left)

“In Certain Circumstances, An Appeal Can Be Made Prematurely”

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33
Q

When is a compulsory counterclaim NOT waived without an assertion?

A

If the action is dismissed before the defendant files an answer

NOTE: the claim can be raised in a future lawsuit

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34
Q

What is required to assert the Class Action Fairness Act?

A

1) 100 = Class contains at least 100 members
2) Minimal = minimal diversity (at least one class member and one defendant are diverse)
3) 5 = AIC for aggregated claims exceeds $5 million

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35
Q

What is a clerical mistake?

A

A misstatement of the court’s intent (e.g., court entered judgement for $10,000 instead of $100,000

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36
Q

When must a clerical mistake be corrected if there is an appeal?

A

Before appeal docketed, either on the court’s own initiative (sua sponte) or by motion

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37
Q

What is an oversight or omission?

A

When an exclusion misrepresents the court’s intent (e.g., judgement failed to include required interest in award)

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38
Q

When must an oversight or omission be corrected if there is an appeal?

A

After appeal docketed WITH appellate court’s leave

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39
Q

When may a party seek extraordinary relief from a district court’s final judgement?

A

WITHIN ONE YEAR from entry of final judgement:
1) Mistake, inadvertence, surprise, excusable neglect
2) Newly discovered evidence
3) Fraud, misrepresentation, misconduct

WITHIN REASONABLE TIME from entry of final judgement:
1) Void judgement (e.g., lack of jurisdiction)
2) Judgement:
- Satisfied, released, discharged
- Based on reversed or vacated judgement
- Will violate equity if applied prospectively
3) Other reason justifying relief (RARE)

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40
Q

If a defendant does not respond to damages-related allegations, are the allegations admitted?

A

No; damages-related allegations cannot be admitted by the defendant’s failure to deny them in an answer

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41
Q

Under Erie, when is state law considered outcome determinitive?

A

When failing to apply state law would result in:
1) Forum-shopping; OR
2) Inequitable administration of the laws

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42
Q

When is an issue considered substantive under Erie?

A

1) Outcome determinative; AND
2) No countervailing federal policy interest

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43
Q

When must a request for attorney’s fees be filed?

A

No more than 14 days after entry of final judgement

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44
Q

When must a renewed request for judgement as a matter of law be filed?

A

No more than 28 days after entry of final judgement

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45
Q

When must a request for a new trial be filed?

A

No more than 28 days after entry of final judgement

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46
Q

When must a request to alter or amend judgement be filed?

A

No more than 28 days after entry of final judgement

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47
Q

When must a request to correct a mistake be filed?

A

Freely OR with appellate court’s leave if docketed

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48
Q

When must a request for extraordinary relief be filed?

A

Either within 1 year from entry of final judgement OR within a reasonable time, depending on the basis of relief

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49
Q

What is subject-matter jurisdiction?

A

The power of the court to decide this type of case

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50
Q

What is personal jurisdiction?

A

The power of the court to decide the rights and liabilities of this defendant

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51
Q

What is venue?

A

Among the courts that have SMJ and PJ, which district(s) have proper venue (location)?

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52
Q

How expansive is the subject-matter jurisdiction of federal courts?

A

Limited

53
Q

How expansive is the subject-matter jurisdiction of state courts?

A

General and unlimited (generally)

NOTE: Unless you are given a state statute that says otherwise, assume state courts have SMJ over any kind of case

54
Q

What is required to plead subject-matter jurisdiction?

A
  • Basis for federal SMJ must be affirmatively pleaded in every case
  • If challenged, it must be proved that there is a basis for SMJ
55
Q

Can you waive a lack of subject-matter jurisdiction?

A

No, so parties cannot agree between themselves to litigate in a court that lacks SMJ. Lack of SMJ cannot be waived by falling to object or by affirmative consent

56
Q

When may an objection to subject-matter jurisdiction be raised?

A

At any time by any party, including:
1) The plaintiff, who chose to go to the wrong court
2) The court itself
3) Anyone for the first time on appeal

57
Q

What are the types of federal SMJ?

A

1) Federal Question Jurisdiction
2) Diversity Jurisdiction

58
Q

What is the basis for Federal Question Jurisdiction?

A

A claim that arises under federal law

59
Q

What is required for a well-pleaded complaint?

A

1) Claim must be based on federal law
2) Look at the face of the well-pleaded complaint:
a) Only the plaintiff’s claims count for determining FQJ; the existence of a federal defense does not matter
b) Plaintiff does not need to anticipate or plead a response to a defense. A federal defense does not count for FQJ, even if it is important.

59
Q

What is required for diversity jurisdiction?

A

Cases between citizens of different states, or citizens of a state and a foreign country, if the amount in controversy exceeds $75,000, exclusive of interest and costs

1) Diversity
2) AIC > $75,000

60
Q

What types of cases CANNOT be brought in federal court under diversity jurisdiction?

A

1) Probate
2) Domestic relations

61
Q

When must diversity exist?

A

When the complaint is filed.

It doesn’t matter if diversity didn’t exist when the cause of action arose or if it no longer exists at trial

62
Q

What is complete diversity?

A

Every citizenship represented on the plaintiff’s side must be different from every citizenship represented on the defendant’s side

63
Q

T or F: Every plaintiff must be diverse from the other plaintiffs for complete diversity

A

False; complete diversity does NOT mean every plaintiff must be diverse from every other plaintiff or that the defendant must be diverse from every other defendant. Diversity must only be complete as between plaintiffs and defendants (on either side of the “v”)

64
Q

What is minimal diversity?

A

Exists when any plaintiff is diverse from any defendant, even if other plaintiffs and defendants overlap

65
Q

When is minimal diversity permitted?

A

1) Federal Interpleader Act = statutory interpleader
2) Class Action Fairness Act = Class actions with at least 100 class members and claims worth more than $5 million
3) Interstate Mass Torts = at least 75 natural persons have died in one accident and the plaintiffs and defendants are from many different states (e.g., airplane crash)

66
Q

Where is an individual a citizen?

A

State or country of domicile

67
Q

How is domicile determined for an individual?

A

Permanent residence (residence + intent to remain indefinitely)

68
Q

How many legal domiciles may an individual have at any one time?

A

1 (for purposes of jurisdiction)

69
Q

For a citizen of a foreign country who has been admitted to the US as a permanent resident, where is their citizenship?

A

The state where they are domiciled

70
Q

When dealing with a representative, whose citizenship will control?

A

The representative party’s citizenship

71
Q

When will a representative party’s citizenship not control for purposes of diversity jurisdiction?

A

1) Estates = citizenship of decedent controls
2) Legal guardianship = citizenship of minor or incompetent person controls

72
Q

Whose citizenship matters for purposes of diversity jurisdiction in a class action?

A

Named or representative parties

73
Q

Where are corporations citizens?

A

1) The state, states, or foreign countries in which it is incorporated; AND
2) The state or country where it has its principal place of business (where its executive officers are located)

74
Q

Where are partnerships and unincorporated associations citizens?

A

Every state of which its members are citizens

75
Q

Are actions that create or destroy diversity permitted?

A

Yes, so long as they are not “shams” or fraudulent

76
Q

Are you allowed to move if there is a case with diversity jurisdiction?

A

Yes, even if it is done with the purpose of affecting diversity, so long as the change in domicile is genuine, not a sham

77
Q

Are you allowed to assign a claim to escape diversity?

A

Yes, so long as the assignment is real (for value), complete, and not collusive

78
Q

When does partial assignment of a claim NOT affect citizenship?

A

For purposes of debt collection, so long as the assignor retains an interest in the claim

79
Q

For diversity jurisdiction, does the plaintiff need to actually recover more than $75,000?

A

No; any good faith allegation will suffice. Only when it appears to a legal certainty that the AIC will not be met will the court dismiss the case for lack of AIC.

80
Q

What does aggregation mean?

A

Adding up smaller claims to exceed the required AIC ($75,000)

81
Q

Can the plaintiff aggregate claims when there is one plaintiff versus one defendant?

A

Yes, regardless of whether the claims are related

82
Q

Can the plaintiff aggregate claims when there is one plaintiff versus two or more defendants?

A

No; claims against each defendant must total more than $75,000

83
Q

Can the plaintiff aggregate claims when there are two or more plaintiffs versus one defendant?

A

No; each plaintiff must be seeking more than $75,000 from the defendant

84
Q

Under FRCP 16, what is considered sanctionable conduct for noncompliance with pretrial conference or order?

A

1) Failure to attend pretrial conference
2) Substantially unprepared for conference
3) No good-faith participation in conference
4) Failure to obey pretrial order

85
Q

Under FRCP 16, what is the required sanction for noncompliance with pretrial conference or order?

A

Payment of reasonable expenses UNLESS:
- Noncompliance substantially justified OR
- Award of expenses is unjust

86
Q

Under FRCP 16, what are the permissible sanctions for noncompliance with pretrial conference or order?

A

1) Dismiss action in whole or in part
2) Strike pleadings in whole or in part
3) Hold in contempt of court
4) Issue default judgement
5) Prohibit use of evidence
6) Stay further proceedings

“D-SHIPS”

87
Q

What is a motion for judgement as a matter of law?

A

A request that the court issue a judgement in favor of the movant because the evidence is legally insufficient for a reasonable jury to find in the nonmovant’s favor.

88
Q

What happens if the court grants a defendant’s motion for involuntary dismissal?

A

The case will be dismissed with prejudice by default, unless the court states otherwise

89
Q

What is a voluntary dismissal?

A

When the plaintiff moves to dismiss the suit

90
Q

What is an involuntary dismissal?

A

When the defendant moves to dismiss the suit

91
Q

What happens if the court orders a reply and allegations are not responded to?

A

Any allegation in the answer that requires a response and is not denied in the reply is deemed ADMITTED by the plaintiff

91
Q

What happens if the court does not order a reply and allegations are not responded to?

A

Allegations in the answer are deemed DENIED by the plaintiff

92
Q

What does it mean for a court to enter a final judgement?

A

It means the decision fully resolves the merits of a dispute, leaving nothing but enforcement

92
Q

When is permissive joinder appropriate?

A

1) The claims asserted by or against the joined parties arise from the same transaction, occurrence, or series thereof; AND
2) A common question of law or fact will arise among them

93
Q

When should a motion to sever claims be granted?

A

If the defendants are improperly joined

94
Q

Is the availability of a defense substantive or procedural?

A

Procedural

95
Q

Where is venue proper?

A

In any federal district where:
1) D’s in Same State = Any defendant resides so long as all defendants reside in the same state;
2) Events = A substantial portion of the events occurred;
3) Land = A substantial part of the property at issue is located; OR
4) Any defendant is subject to personal jurisdiction - but only if 1-3 do not exist

96
Q

How can sanction proceedings be initated?

A

1) By a party’s motion; OR
2) On the court’s own initiative, so long as the judge issues an order to show cause

97
Q

What is the function of impleader?

A

Allows a defendant to add a nonparty who may be liable to the defendant for all or party of the plaintiff’s claim.

98
Q

When will an amended complaint relate back to the date of the original complaint?

A

(1) the same occurrence is at issue;
(2) the new party received notice of the suit within 90 days after the original complaint was filed; AND
(3) the new party knew or should have known that it would have been sued but for a mistake about its identity.

99
Q

What is removal?

A

Moves case from state court to federal court

100
Q

What is transfer?

A

Moves case from one federal court to another federal court

101
Q

What is the general rule for removal?

A

Removal is proper ONLY if the case could have been brought originally in federal court

NOTE:
- Only defendants may remove (all D’s must consent to removal within 30 days of service)
- ASK: If the plaintiff had chosen to sue in federal court in the first place, would the federal court have had subject-matter jurisdiction?

102
Q

What is the “Well-Pleaded Complaint” rule?

A

Federal question jurisdiction depends on whether the federal question appears on the face of the well-pleaded complaint.

103
Q

How does the “Well-Pleaded Complaint” rule apply in removal?

A

Removal does not change the rule. If the well-pleaded complaint discloses that the plaintiff’s claim is based on federal law, then the defendant may remove to federal court. However, if the plaintiff’s claim is based on state law, defendant may NOT remove to federal court, even if the defendant has raised a federal defense.

104
Q

When is removal based on diversity jurisdiction proper?

A

Only if:
1) There is complete diversity;
2) The amount in controversy exceeds $75,000; AND
3) The action is brought in a state of which no defendant is a citizen

105
Q

What is the time limit on removal?

A

One-year limit = Must remove within one year of the commencement of the action in state court, unless the plaintiff acted in bad faith to make the case non-removable

106
Q

What are the procedures for removal?

A

1) Notice & File = A notice of removal is filed in the federal court, with a copy to the state court
2) Auto-End = When the removal notice is filed, the state court’s jurisdiction ends automatically

107
Q

What happens if removal is improper?

A

Plaintiff can file in federal court a petition for remand, and it is on that petition that the federal court will hold a hearing:
- If removal is PROPER = remand is denied, and case stays in federal court
- If removal is IMPROPER = remand is granted, and case goes back to state court

NOTE: Removal is automatic, and then the decision about whether it was proper is done on a petition for remand by the federal court

108
Q

Civil Procedure Key Topics

A
  1. Subject Matter Jurisdiction: FQ, Div, Sup, Removal
  2. Personal Jurisdiction: People, Things, Notice
  3. Venue
  4. Choice of Law (Erie)
  5. Pleadings: Service, Injunctions, Complaint, Motions, Answer, Reply, Amendments, Sanctions (SICk MARAS)
  6. Multiple Parties and Claims: Joinder of Parties (Intervention, Interpleader), Joinder of Claims (Permissive, Counterclaims, Cross-Claims, Impleader), Class Action
  7. Pretrial Procedure and Discovery: Mandatory Disclosures, Discovery, Enforcement, Case Management, Adjudication Without Trial
  8. Trial Procedure: Jury Trial, Trial by the Court, Consolidation, JMOL, Judgment, Amend, New Trial
  9. Post-Trial Procedure: Alterations, Appeals, Full Faith & Credit, Claim Preclusion, Issue Preclusion
109
Q

What is remittitur?

A

Defendant’s request to reduct jury award of excessive damages

110
Q

What happens in the event of remittitur?

A

Plaintiff must be offered a choice between:
1) Reduced damages OR
2) New trial on damages

111
Q

What is additur?

A

Plaintiff’s request to increase jury award of inadequate damages

112
Q

What happens in the event of additur?

A

A party may move for a new trial on the basis that the fact finder awarded an inadequate amount of damages. If a federal court rules that the amount was inadequate, it may order a new trial but may NOT impose an increase in the amount of damages.

113
Q

When must the court clerk enter a default judgment?

A

1) The plaintiff’s claim is for a sum certain or a sum that can be made certain by calculation;
2) The plaintiff’s request for default judgment includes an affidavit establishing the amount due;
3) The defendant failed to appear; AND
4) The defendant is not legally incompetent or a minor

114
Q

When is there a right to jury trial in a civil case?

A

1) Legal claim = seeks monetary remedy to compensate for loss; AND
2) > $20 in controversy

115
Q

When is there NOT a right to jury trial in a civil case?

A

1) Equitable claim = seeks nonmonetary remedy (e.g., injunction, specific performance) since legal remedy is inadequate; OR
2) < $20 in controversy

116
Q

What is the two-dismissal rule?

A

A voluntary dismissal is with prejudice when the plaintiff:
1) Voluntarily dismissed an action in federal or state court without a court order; AND
2) Filed a notice of voluntary dismissal in a second action on the same claim in federal court

117
Q

Where is venue proper when there is removal?

A

The federal district where state action was pending

118
Q

Where is venue proper when there is a foreign resident?

A

In any judicial district

119
Q

Where is venue proper when there is a federal official sued in their official capacity or under color of legal authority?

A

1) Where the defendant resides;
2) Where substantial events occurred or property is located; OR
3) Where plaintiff resides if no real property is involved in suit

120
Q

Where is venue proper when there is a foreign government?

A

1) Where substantial events occurred or property is located; OR
2) In federal district court of Washington, D.C.

121
Q

Where is venue proper when there is a multipary or multiforum litigation?

A

1) Where defendant resides; OR
2) Where a substantial part of the accident occurred

122
Q

Where is venue proper when there is a claim arising under the Federal Tort Claims Act?

A

1) Where the plaintiff resides; OR
2) Where the act or omission occurred

123
Q

What is the standard of review for legal issues?

A

De novo

124
Q

What is the standard of review for fact issues?

A
  • Bench trial = clear error
  • Jury trial = substantial evidence
125
Q

What is the standard of review for discretionary rulings?

A

Abuse of discretion

126
Q

What are the requirements for statutory interpleader?

A

1) SMJ = AIC of at least $500 and minimal diversity
2) PJ = exists over any claimant who is served with process anywhere within the US
3) Venue = proper in any judicial district where any claimant resides
4) Deposit = requires the stakeholder to deposit the property at issue with the court OR post a bond in an amount determined by the court

Bar Prep (33 decks)

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