Civ Pr Flashcards
When a transfer is based on the ground that venue was improper, which law applies in the transferee court?
What doctrine is this governed by?
Based on the, Eerie Doctrine, the law of the transferee court.
For venue purposes, a business entity defendant is deemed to reside in:
Any judicial district in which 1) the defendant is subject to the court’s personal jurisdiction, 2) with respect to the action in question
Absent a showing of substantial need and undue hardship, the “work product” (a document or tangible thing) made by a party or representative of a party (such as the party’s attorney) is not discoverable:
If made in anticipation of litigation
Parties may obtain discovery of any _______ matter that is relevant to any party’s claim or defense and proportional to the needs of the case.
Nonprivileged
Unless a different time is set by court order or stipulation, within how many days after a Rule 26(f) conference must the parties provide the names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses?
Within 14 days after the meeting
During discovery, electronically stored information need not be produced if the responding party identifies it as:
Not reasonably accessible because of undue burden or cost
The opinion of an expert consulted in anticipation of litigation is discoverable if…
a party intends to call the expert as a trial witness
The opinion of an expert who is retained in anticipation of litigation but who is not expected to testify at trial (i.e., a consulting expert) is discoverable only…
upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means.
Absent such circumstances, these opinions are not discoverable, regardless of whether the nontestifying expert was informally consulted or whether she was retained or specially employed
Where is a human always at home?
Where he is domiciled
Where is a corporation at home?
1) all states in which it is incorporated, AND
2) only state where principal place of business
What is specific personal jurisdiction?
D can only be sued for claims arising from in-state activities
What is general personal jurisdiction?
D can be sued for claims arising in- and out-of state
What must be included in a summons?
1) signed by court clerk
2) tell D when/where to appear
3) identify the court, parties and P’s attorney
What happens if the service of process is not accomplished within the required time frame (which is…)?
Dismissed without prejudice, unless P can show good cause for the delay
Delivered within 90 days of filing the case
How do you prove service of process?
Process server usually files a report with the court detailing how service was made.
If the server was a civilian, the report is by affidavit.
Failure to file a report DOES NOT affect the validity of service
Can an alien ever be a U.S. citizen for the purposes of diversity jx?
No - an alien cannot be a citizen of a U.S. state
Is a U.S. citizen domiciled in a foreign country a citizen of a U.S. state?
No
How do you establish a new domicile?
1) actual presence in a new place;
2) intent to make it your permanent home
Look to: taking a job, buying a house, joining civic organisations, qualifying for in-state tuition
When can you aggregate multiple P’s claims to meet the amount in controversy requirement for diversity jx?
When multiple Ps are seeking to enforce a single title or right in which they have a common, undivided interest (e.g. suing D to quiet title of real estate).
Very rare.
What is the well-pleaded complaint rule?
If P is seeking to bring a claim into federal court under FQ jx, she must demonstrate that the claim arose under federal law and appears on the face of the complaint
When is the right to remove a case to federal court wiaved?
1) D files a permissive counterclaim
2) 30 days after service of the first removable document (usually service of process)
How is removal properly affected?
1) D must file notice in state and fed court. Notice contains: a) grounds for removal; b) copies of documents served in state court; c) signed
2) All adverse parties must receive notice of removal
When is removal not permitted?
In diversity jx cases where:
1) D is a citizen of the forum state, OR
2) one year has passed since filing of case in state court
What 5 substantive issues are always governed by state law?
1) elements of a claim or defense
2) SOL
3) Rules for tolling SOL
4) Conflict/Choice of Law Rules
5) Standing to grant a new trial based on excessive/inadequate jury awarded damages
What is a forum selection clause
A provision in which the parties agree that a dispute between them will be litigated in a particular place
Are TROs appealable as of right? Are preliminary injunctions
TRO - No
Preliminary injunction - Yes
How might a D respond to a P’s complaint
By 1) answer or 2) motion
Which 12(b) defenses are waived if not included in a D’s Rule 12 motion?
There are 5
12(b):
(2) - Lack of PJ
(3) - Improper Venue
(4) - Insufficient Process
(5) - Insufficiency of Service of Process
*waived only if available at the time D made the motion
What affirmative defenses are waived if not explicitly pleaded in D’s answer?
There are 6
1) Contributory negligence
2) Claim preclusion
3) Statute of Frauds
4) Fraud
5) SOL
6) Self-defense
After D serves a counterclaim against P, what must P do?
Respond under Rule 12, within 21 days of service
What must D include in an answer to P’s claim if he wishes to avoid it being waived?
1) 12(b)(2)-(5) affirmative defenses
2) CCSFSS affirmative defenses
3) Compulsory counterclaim
* NB: exception where the party amends complaint/answer
P seeks to admit evidence that does not conform to the substance of the complaint. Two potential scenarios, and what results?:
1) D does not object
2) D objects
1) P may amend the original complaint to conform to the evidence
2) Evidence is inadmissible because it is at variance with the pleadings
Is there ever a right to file a supplemental pleading?
No - party must make a motion, and whether granted is in the court’s discretion
What are supplemental pleadings?
They set forth things that happen after the original pleadings were filed
What is an order to show cause?
When the court believes there has been a Rule 11 violation, the court may issue an “order to show cause” to ascertain why sanctions should not be imposed on the offending party.
The offending party must be given a chance to be heard before the sanctions are imposed.
Offending party not entitled to safe harbour protection as it would be if the adverse party raised the Rule 11 issue.
Are there any restrictions to P joining additional claims to her original claim?
No - P may join any additional claim she likes - even if the additional claim is unrelated to the original claim.
Still need to assess whether the court has SMJ jx
What is the difference between a permissive joinder and an impleader?
1) Permissive joinder - P is seeking to join non-parties as co-Ps or co-Ds
2) Impleader - D is seeking to join non-parties
What are the 12(b) affirmative defenses?
1) lack of SMJ
2) lack of PJ
3) improper venue
4) improper process
5) improper service of process
6) failure to state a claim
7) failure to join indispensable party
What is the difference between indemnity and contribution in the context of an impleader?
Indemnity - shifts liability from D to TPD entirely (liable for full claim)
Contribution - shifts liability pro-rata from D to TPD (liable for pro-rata portion of the claim)
When does a case become a class action?
When the court grants a motion to certify the class action, which involves:
1) Defining the class and the class claims, issues, or defenses
2) Appointing class counsel
When is an action deemed commenced for statute of limitations purposes for 1) a federal question case, and 2) a diversity case?
1) a federal question case is commenced upon the filing of the complain
2) a diversity case is commenced depending on when state law says so (could be upon service of process)
In a diversity case, federal trial courts are required to apply a _______ when considering a motion for a new trial based on the excessiveness of the verdict.
State law standard
To receive a jury trial, a party generally must:
File a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue
If legal and equitable claims are joined in one action involving common fact issues…[what follows]
The legal claim is tried first before the jury, and then the equitable claim is tried to the court.
The jury’s finding on fact issues will bind the court in the equitable claim
Does D get notice of a hearing held by a judge to determine whether to enter a default judgement?
Only if D has previously “appeared” in court (i.e. by filing a previous motion)
In real property cases, if there is a conflict as to which state’s law should be applied, what is the general rule?
The forum court should apply the state law of the situ (i.e. where the property is located)
When does an appellate court review de novo?
questions of law, and mixed questions of law and fact
What trial court decisions fall under questions of law, and are thus reviewed de novo?
1) JMOL/RJMOL
2) Content of jury instructions
What trial court decisions are discretionary and thus reviewed for abuse of discretion?
1) relief from judgement
For the purpose of claim preclusion, when is a judgment not based on the merits?
1) jurisdiction
2) venue
3) indispensable parties
Where the issue of claim/issue preclusion is raised in Case 2, what law is used to decide the issue?
The preclusion law of of the judicial system that decided Case 1
For the purposes of claim preclusion, what is the majority v. minority views as to what constitutes a claim
majority (incl. federal law) - a claim is any right to relief arising from a transaction or occurrence
minority - there are separate claims for property damage and for personal injury because those are different primary rights
What is the distinction in the requirements regarding claim v. issue preclusion
For issue preclusion, the issue must have been actually litigated, whereas for claim preclusion they need only have had the opportunity to litigate the claim.
What is the traditional v. modern view as to who may assert issue preclusion?
traditional view - “mutuality” - only parties to prior litigation can assert issue preclusion
modern view - “non-mutuality” - issue preclusion may be asserted by those who were not parties in the prior litigation
What is the constitutional analysis for In Rem Jurisdiction?
The presence of the property in the state is constitutionally sufficient for the exercise of jurisdiction over the property
When can a federal court exercise pendant jurisdiction over a state law claim (if other claim was brought under FQ)?
If both claims:
1) derive from a common nucleus of operative fact, and
2) a plaintiff would ordinarily be expected to try them all in one judicial proceeding
When are parties not required to produce electronically stored data?
If the responding party identifies it as from a source not reasonably accessible because of undue burden or cost
What actions may a court take if it determines that a disclosing party acted with intent to deprive the discovering party of electronically stored information?
1) presume lost information was unfavorable to the party
2) instruct the jury that it may or must presume the information was unfavorable to the party, or
3) dismiss the action or enter a default judgment
When is work product discoverable?
Only upon showing “substantial need” and to “avoid undue hardship” in obtaining materials in another way
When will an appeals court hear an appeal regarding jury instructions when the moving party did not raise the objection in the trial court?
Only if the erroneous instruction was plain error that affected a party’s substantial rights
What is the exception to the rule that cross-claims must arise out of the same T/O?
As a general rule, a party may assert a cross-claim against a co-party only if the cross-claim arises from the same transaction or occurrence as that of the original action or of a counterclaim.
However, once the party has filed such a cross-claim, he also may join with it any other claim that he has against the same party, even if not arising from the same T/O
What is needed for a motion to compel order?
A motion to compel must certify that the moving party has made a good faith attempt to confer with the opponent to obtain the discovery without court intervention. The certification (and an actual attempt at resolving the discovery dispute without court intervention) is a prerequisite to an award of reasonable expenses (which includes attorneys’ fees)
What cases can a fed court not hear even if diversity of citizenship is present?
Child custody, alimony, probate and divorce
How can D waive the right to removal?
1) fail to file a motion within 30 days of first removable document
2) file a permissive counterclaim
With respect to opposing to motions of summary judgments, what is the effect of failing to supplement a mandatory disclosure?
Precludes the party from using the evidence to oppose a motion for summary judgment - constitute an improper reliance on undisclosed discovery material he was obligated to provide earlier
What is required ti set aside entry of default?
1) good cause shown,
2) Maj: meritorious defense
What kind of error is failing to give a particular jury instruction?
procedural mistake and does not rise to the level to constitute plain error
What is required of a court when faced with both a motion for new trial and an RJMOL
FCRPs require a court to conditionally rule on a motion for a new trial if and when it grants a RJMOL
In order to extend a TRO, a judge needs to be shown…
Good cause
What is the effect of a prior prosecution resulting a factual determination inconsistent with one required for conviction.
Prosecution collaterally estopped from being tried or convicted of the same crime
Is failure to respond a basis for summary judgement?
No
Is a class action rendered moot if the Rep’s claim is rendered moot?
No - because the claims of others in the class may be still viable.
