BLL Civ Pro Flashcards
reqs of Federal Q Jx
Arises under US Consitution, treaties, or laws
reqs of Diversity Jx
- complete diversity on both sides of the “v.”
- amount in controversy exceeds $75,000
reqs of Supplemental Jx
Applies when no FQ or Div Jx over a claim;
claim coming in:
1. must share common nucleus of operative fact (same T/O)
2. is not a claim trying to be added by P in a diversity jx case
Removal process
By D only; only be removed to fed. court if it could have originally been filed there by P; D files notice w/ fed. court to initiate
personal jx analysis (doesn’t matter for P bc they filed the claim)
does D have such minimum contacts with the forum state so jx does not offend traditional notions of fair play and substantial justice?
contacts – purposeful availment of the forum state and foreseeability of being sued there
relatedness – does P’s claim arise from or relate to D’s contact w/ forum?
service of process must be done w/in…
90 days of the complaint being filed
service can be done using state methods of the state where…
fed court sits; service is made
Time for D to respond to request for waiver of service of process
D must mail waiver back to P w/in 30 days
venue is proper (where case is originally filed in fed. court):
- where ALL Ds reside
- where a substantial part of P’s claim arose or a substantial part of prop is located
where is a human domiciled?
in the state where they reside (physical presence w/ intent to remain)
where is a corp. domiciled?
state of incorporation and state where PPB is located
transfer of venue from proper venue
based on convenience and interests of justice; burden on person seeking transfer; transferee court MUST apply rules of transferor court
What rules are applied in transfer of venue from improper venue
transferee applies transferee rules
forum non conveniens
there is another court that is the center of gravity of the case but it is in a diff judicial system
use state law in fed. court when…
diversity case and law is substantive (will change outcome of case)
service of process includes…
summons & copy of complaint
what does a temp restraining order do?
preserves status quo until hearing for preliminary injunction can be held
can a TRO be issued ex parte?
yes, if
1. applicant under oath shows she will suffer immediate irreparable harm if not granted &
2. applicant’s lawyer certifies efforts to give oral or written notice to D
how long does a TRO last?
14 days; can be extended another 14 days under showing of good cause (if longer than 28 days it is treated as a preliminary injunction)
what is a preliminary injunction?
maintains the status quo until the court can adjudicate the underlying claim on the merits; CANNOT be issued ex parte
are TROs appealable immediately?
no
are interlocutory appeals available for grants & denials of prelim injunctions?
yes
filing of _________ commences action
complaint
complaint must contain:
- statement of grounds of SMJ
- short and plain statement showing P entitled to relief
- demand for relief sought
what is the twiqbal standard?
complaint must have sufficient facts to support a plausible claim for relief
what claims must be pleaded with particularity and specificity?
fraud, mistake, special damages
what are the two ways in which D can respond to complaint?
- motion
- answer
when must D respond to complaint by
within 21 days after being served
how long does D have to respond to complaint if D has waived service?
60 days
what does the answer have to contain?
- either admit, deny or DKI every allegation
- affirmative defenses (if any) (no response by P req’d)
amended pleadings by right for P
right to amend once w/in 21 days after D serves first rule 12 response
amended pleading by right for D
right to amend once w/in 21 days of serving answer on P; can include omitted, waivable 12(b) defenses
amendments w/o right are done by:
seeking leave of court; court will grant if justice so requires
amendments after SoL has run to join a claim not originally asserted
amend. plead. relates back if plead. concerns the same conduct or T/O as original pleading (treat amend. plead. as being filed at time of org. plead.)
amends. after SoL has run to change a D
amend. plead will relate back if:
1. amend concerns same conduct, T/O
2.D had such knowledge fo the case that D won’t be prejudiced, AND
D knew or should have known that but for mistake D would’ve been named originally
supplemental pleadings
no right to file; set forth things that happened after filing; discretion of court whether to allow or not
what does rule 11 do?
sanctions
who may sanctions be imposed against?
party. lawyer, and/or firm
by whom may sanctions be imposed?
by the court after a motion by a party or sua sponte
what is the safe harbor provision?
party violates rule 11, opp. party cannot immediately move for sanctions, must serve motion on bad party and allow them to correct w/in 21 days, if not, then file motion
what is the rule for claim joinder by P?
under FRCP: any claim may be joined, even if unrelated, but there MUST be SMJ
claims by multiple Ps or against multiple Ds must to be joined:
- arise from same T/O &
raise at least one common question of fact or law
when is an absentee necessary?
- w/o absentee, court cannot accord complete relief to parties OR
- absentee’s interest may be harmed OR
- subjects a party to risk of multiple obligations
are joint tortfeasors necessary?
NO Never
if absentee is necessary, they can be joined by…
court having PJ over party and SMJ over claim by or against the party
difference between a necessary party and an indispensable party
if court continues w/o absentee party = necessary party
if court dismisses case b/c necessary party cannot be joined = indispensable party
what is a compulsory counterclaim?
one that arises from same T/O as P’s claim; use it or lose it
what is a permissive counterclaim?
one that does not arise from same T/O as P’s claim
what is a crossclaim?
claim against a coparty (ex: D v. D); MUST arise from same T/O, but not compulsory
what is impleader?
a defending party brings in a new party to shift D’s liability to 3d D
reqs for class action:
numerosity, commonality, typicality, adequate representative
what is a prejudice class action?
class action is necessary to avoid harm to class members or non-party (rare)
what is an injunctive/declaratory relief class action?
D treated class members alike, no damages
what is a common Q/damages class action?
- common questions must predominate over individual Qs &
- CA is superior method fo handling dispute
are class certifications subject to interlocutory appeals?
YES - immediately appealable
how is diversity of a class determined for SMJ?
citizenship of class rep and value of rep’s claim ONLY
how many days after rule 26(f) conf do parties have to make initial disclosures?
14 days
what are initial disclosures?
IDs of people who party may use to support claims or defenses, documents and tangible things that may be used for support, insurance coverage,
what happens if an initial disclosure is not made?
can’t use that evidence in the case
what must be disclosed regarding experts?
ID and final reports of experts who may provide testimony at trial (does not include consulting experts)
when must pretrial disclosures be made by?
at least 30 days before trial
when must rogs be answerd by?
w/in 30 days of service
when must requests for production be responded to by?
w/in 30 days of service
when must reqs for admissions be responded to by?
w/in 30 days of service
what is the scope of discovery
anything relevant to a claim or defense
what is protected work product?
anything made in anticipation of litigation
what can a party do if opp. party does not fully respond to discovery requests?
move for order to compel, if order is violated, sanctions
what happens if a party fully fails to respond to disco requests
sanctions
when may a P voluntarily dismiss their case w/o court permission?
before D serves and answer or motion for SJ
when must a P seek court approval for a voluntary dismissal?
after D has answer or moved for SJ
how many times can a P voluntarily dismiss a case?
once w/o prejudice
what is a default?
notation by court clerk that P moves for if D does not respond w/in 21 days
what is a default judgment?
D did not respond, P auto wins
who issues a default judgment?
clerk can if D has made no appearance at all & claim is for a certain amount of $$
court must issue if D has made at least one appearance or claim is not for set amount of money; court must give D reasonable notice
what is a motion for judgment on the pleadings?
same as a 12(b)(6) motion but name changes after D answers
what is a 12(b)(6) motion?
a motion to dismiss for failure to state a claim upon which relief can be granted
what is the time limit for a motion for SJ?
must be made no later than 30 days after close of disco
what must be shown in a motion for SJ?
- no genuine dispute of material fact and 2. party is entitled to judgment as a matter of law
what is a motion for a judgment as a matter of law?
reasonable people could not disagree om the result
what is a renewed motion for judgment as a matter law?
same as JMOL but made after trial & after jury verdict is entered
when is a JMOL raised?
after close of opp. part’s evidence
when must a RJMOL be raised by?
w/in 28 days after entry of judgment
what is the pre-req for a RJMOL to be granted?
JMOL must have been raised at appropriate time during trial; no JMOL = no RJMOL
what is a 12(b)(6) motion?
a motion to dismiss for failure to state a claim upon which relief can be granted
when can a motion for new trial be granted?
can be granted on any harmful error that makes the judge think there should be a new trial
when must a motion for new trial be filed?
w/in 28 days after entry of judgment
time for motion to set aside judgment because of clerical errors
any reasonable time
time for motion to set aside judgment because of mistake/excusable neglect
reasonable time less than one year
time for motion to set aside judgment because of fraud, misrepresentation, or misconduct by opp. party
reasonable time less than one year
time for motion to set aside judgment because of newly discovered evidence that existed at trial
that could not have been discovered with due diligence for a new trial motion
reasonable time less than one year
time for motion to set aside judgment because judgment is void
reasonable time
