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my bar flashcards > BLL Civ Pro > Flashcards

BLL Civ Pro Flashcards

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1
Q

reqs of Federal Q Jx

A

Arises under US Consitution, treaties, or laws

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2
Q

reqs of Diversity Jx

A
  1. complete diversity on both sides of the “v.”
  2. amount in controversy exceeds $75,000
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3
Q

reqs of Supplemental Jx

A

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

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4
Q

Removal process

A

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

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5
Q

personal jx analysis (doesn’t matter for P bc they filed the claim)

A

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?

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6
Q

service of process must be done w/in…

A

90 days of the complaint being filed

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7
Q

service can be done using state methods of the state where…

A

fed court sits; service is made

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8
Q

Time for D to respond to request for waiver of service of process

A

D must mail waiver back to P w/in 30 days

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9
Q

venue is proper (where case is originally filed in fed. court):

A
  1. where ALL Ds reside
  2. where a substantial part of P’s claim arose or a substantial part of prop is located
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10
Q

where is a human domiciled?

A

in the state where they reside (physical presence w/ intent to remain)

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11
Q

where is a corp. domiciled?

A

state of incorporation and state where PPB is located

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12
Q

transfer of venue from proper venue

A

based on convenience and interests of justice; burden on person seeking transfer; transferee court MUST apply rules of transferor court

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13
Q

What rules are applied in transfer of venue from improper venue

A

transferee applies transferee rules

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14
Q

forum non conveniens

A

there is another court that is the center of gravity of the case but it is in a diff judicial system

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15
Q

use state law in fed. court when…

A

diversity case and law is substantive (will change outcome of case)

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15
Q

service of process includes…

A

summons & copy of complaint

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16
Q

what does a temp restraining order do?

A

preserves status quo until hearing for preliminary injunction can be held

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17
Q

can a TRO be issued ex parte?

A

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

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18
Q

how long does a TRO last?

A

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)

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19
Q

what is a preliminary injunction?

A

maintains the status quo until the court can adjudicate the underlying claim on the merits; CANNOT be issued ex parte

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20
Q

are TROs appealable immediately?

A

no

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21
Q

are interlocutory appeals available for grants & denials of prelim injunctions?

A

yes

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22
Q

filing of _________ commences action

A

complaint

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23
Q

complaint must contain:

A
  1. statement of grounds of SMJ
  2. short and plain statement showing P entitled to relief
  3. demand for relief sought
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24
Q

what is the twiqbal standard?

A

complaint must have sufficient facts to support a plausible claim for relief

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25
Q

what claims must be pleaded with particularity and specificity?

A

fraud, mistake, special damages

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26
Q

what are the two ways in which D can respond to complaint?

A
  1. motion
  2. answer
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27
Q

when must D respond to complaint by

A

within 21 days after being served

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28
Q

how long does D have to respond to complaint if D has waived service?

A

60 days

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29
Q

what does the answer have to contain?

A
  1. either admit, deny or DKI every allegation
  2. affirmative defenses (if any) (no response by P req’d)
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30
Q

amended pleadings by right for P

A

right to amend once w/in 21 days after D serves first rule 12 response

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31
Q

amended pleading by right for D

A

right to amend once w/in 21 days of serving answer on P; can include omitted, waivable 12(b) defenses

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32
Q

amendments w/o right are done by:

A

seeking leave of court; court will grant if justice so requires

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33
Q

amendments after SoL has run to join a claim not originally asserted

A

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.)

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34
Q

amends. after SoL has run to change a D

A

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

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35
Q

supplemental pleadings

A

no right to file; set forth things that happened after filing; discretion of court whether to allow or not

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36
Q

what does rule 11 do?

A

sanctions

37
Q

who may sanctions be imposed against?

A

party. lawyer, and/or firm

38
Q

by whom may sanctions be imposed?

A

by the court after a motion by a party or sua sponte

39
Q

what is the safe harbor provision?

A

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

40
Q

what is the rule for claim joinder by P?

A

under FRCP: any claim may be joined, even if unrelated, but there MUST be SMJ

41
Q

claims by multiple Ps or against multiple Ds must to be joined:

A
  1. arise from same T/O &
    raise at least one common question of fact or law
42
Q

when is an absentee necessary?

A
  1. w/o absentee, court cannot accord complete relief to parties OR
  2. absentee’s interest may be harmed OR
  3. subjects a party to risk of multiple obligations
43
Q

are joint tortfeasors necessary?

A

NO Never

44
Q

if absentee is necessary, they can be joined by…

A

court having PJ over party and SMJ over claim by or against the party

45
Q

difference between a necessary party and an indispensable party

A

if court continues w/o absentee party = necessary party
if court dismisses case b/c necessary party cannot be joined = indispensable party

46
Q

what is a compulsory counterclaim?

A

one that arises from same T/O as P’s claim; use it or lose it

47
Q

what is a permissive counterclaim?

A

one that does not arise from same T/O as P’s claim

48
Q

what is a crossclaim?

A

claim against a coparty (ex: D v. D); MUST arise from same T/O, but not compulsory

49
Q

what is impleader?

A

a defending party brings in a new party to shift D’s liability to 3d D

50
Q

reqs for class action:

A

numerosity, commonality, typicality, adequate representative

51
Q

what is a prejudice class action?

A

class action is necessary to avoid harm to class members or non-party (rare)

52
Q

what is an injunctive/declaratory relief class action?

A

D treated class members alike, no damages

53
Q

what is a common Q/damages class action?

A
  1. common questions must predominate over individual Qs &
  2. CA is superior method fo handling dispute
54
Q

are class certifications subject to interlocutory appeals?

A

YES - immediately appealable

55
Q

how is diversity of a class determined for SMJ?

A

citizenship of class rep and value of rep’s claim ONLY

56
Q

how many days after rule 26(f) conf do parties have to make initial disclosures?

A

14 days

57
Q

what are initial disclosures?

A

IDs of people who party may use to support claims or defenses, documents and tangible things that may be used for support, insurance coverage,

58
Q

what happens if an initial disclosure is not made?

A

can’t use that evidence in the case

59
Q

what must be disclosed regarding experts?

A

ID and final reports of experts who may provide testimony at trial (does not include consulting experts)

60
Q

when must pretrial disclosures be made by?

A

at least 30 days before trial

61
Q

when must rogs be answerd by?

A

w/in 30 days of service

62
Q

when must requests for production be responded to by?

A

w/in 30 days of service

63
Q

when must reqs for admissions be responded to by?

A

w/in 30 days of service

64
Q

what is the scope of discovery

A

anything relevant to a claim or defense

65
Q

what is protected work product?

A

anything made in anticipation of litigation

66
Q

what can a party do if opp. party does not fully respond to discovery requests?

A

move for order to compel, if order is violated, sanctions

67
Q

what happens if a party fully fails to respond to disco requests

A

sanctions

68
Q

when may a P voluntarily dismiss their case w/o court permission?

A

before D serves and answer or motion for SJ

69
Q

when must a P seek court approval for a voluntary dismissal?

A

after D has answer or moved for SJ

70
Q

how many times can a P voluntarily dismiss a case?

A

once w/o prejudice

71
Q

what is a default?

A

notation by court clerk that P moves for if D does not respond w/in 21 days

72
Q

what is a default judgment?

A

D did not respond, P auto wins

73
Q

who issues a default judgment?

A

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

74
Q

what is a motion for judgment on the pleadings?

A

same as a 12(b)(6) motion but name changes after D answers

74
Q

what is a 12(b)(6) motion?

A

a motion to dismiss for failure to state a claim upon which relief can be granted

75
Q

what is the time limit for a motion for SJ?

A

must be made no later than 30 days after close of disco

76
Q

what must be shown in a motion for SJ?

A
  1. no genuine dispute of material fact and 2. party is entitled to judgment as a matter of law
77
Q

what is a motion for a judgment as a matter of law?

A

reasonable people could not disagree om the result

78
Q

what is a renewed motion for judgment as a matter law?

A

same as JMOL but made after trial & after jury verdict is entered

78
Q

when is a JMOL raised?

A

after close of opp. part’s evidence

79
Q

when must a RJMOL be raised by?

A

w/in 28 days after entry of judgment

79
Q

what is the pre-req for a RJMOL to be granted?

A

JMOL must have been raised at appropriate time during trial; no JMOL = no RJMOL

80
Q

what is a 12(b)(6) motion?

A

a motion to dismiss for failure to state a claim upon which relief can be granted

80
Q

when can a motion for new trial be granted?

A

can be granted on any harmful error that makes the judge think there should be a new trial

81
Q

when must a motion for new trial be filed?

A

w/in 28 days after entry of judgment

82
Q

time for motion to set aside judgment because of clerical errors

A

any reasonable time

83
Q

time for motion to set aside judgment because of mistake/excusable neglect

A

reasonable time less than one year

84
Q

time for motion to set aside judgment because of fraud, misrepresentation, or misconduct by opp. party

A

reasonable time less than one year

85
Q

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

A

reasonable time less than one year

86
Q

time for motion to set aside judgment because judgment is void

A

reasonable time

my bar flashcards (14 decks)

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