Civ Pro Flashcards
An amendment to a pleading to change a party relates back to the date the original pleading was filed for purposes of the SOL if:
(1) the claim arises out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading; and
(2) if the new party received notice of the P’s original lawsuit and knew, or should have known, that the action would have been brought against it, but for a mistake concerning the proper party’s identity
Cases where federal courts have exclusive jurisdiction
bankruptcy cases, patent and copyright cases, antitrust cases, and a few other less common types of actions
Discoverability of expert opinion
An expert is a person with knowledge, skill, experience, training, or education in a particular field.
The opinion of an expert consulted in anticipation of litigation is discoverable if a party intends to call the expert as a trial witness.
Conversely, 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
When must improper venue be raised?
Pursuant to Rule 12(b), improper venue must be raised in a defendant’s first response-either in its timely motion to dismiss before the answer or in the answer, whichever is first.
Forum non conveniens
Even if the court has personal jurisdiction over the defendants, subject matter over the action, and venue is proper, the court has discretion to decline to hear the case in deference to a court in another country if it determines that the other country provides a substantially more efficient, convenient, and fair forum
During a trial, a motion for judgment as a matter of law (“JMOL”) may be filed:
at any time before submission of the case to the jury.
the clerk may sign and enter judgment for that amount and costs against the defendant if:
(i) the plaintiff’s claim against the defaulted defendant is for a sum certain;
(ii) the default was entered because the defendant failed to appear;
(iii) the defaulted defendant is not an infant or incompetent person; and
(iv) the damages amount requested is not greater than the amount requested in the complaint.
Interlocutory (i.e., nonfinal) orders that may be immediately appealed include:
(i) an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction),
(ii) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships,
(iii) decrees in admiralty cases that find liability but leave damages to be assessed later,
(iv) a patent infringement order where only an accounting is wanting, and
(v) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.
a notice of appeal must be filed with the district court within ____ days from the entry of judgment.
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On motion and just terms, the court may relieve a party from a final judgment or order on the following grounds:
(i) mistake, inadvertence, surprise, or excusable neglect;
(ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial;
(iii) fraud, misrepresentation, or other misconduct of an adverse party;
(iv) the judgment is void;
(v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or
(vi) any other reason justifying relief from the operation of the judgment.
For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year from the judgment; for the other grounds, the motion must be made within a reasonable time.
Merged v. barred claim preclusion (res judicata)
Where the claimant won the earlier lawsuit, the claim is said to be merged into the prior judgment.
Where the defendant won the earlier lawsuit, the claim is said to be barred by the prior judgment.
For a party to be bound by issue preclusion,
(i) there must have been a final judgment;
(ii) the issue must have been actually litigated and determined;
(iii) the issue must have been essential to the judgment; and
(iv) the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action.
Issue preclusion (collateral estoppel)
judgment must have been final, the issue actually litigated, and it must have been essential to the judgment
only asserted AGAINST someone who was a party (or in privity of party) to the previous cases only asserted BY someone who was a party (or in privity w/ a party) in the previous case
If the federal court has diversity jx over the claim of one P, the court will have supp jx over another P’s claim if:
(1) it is so related to the first P’s claim that it forms part of the same case or controversy; and
(2) the additional P is not a citizen of the state of any of the Ds
To become a class action, a case:
(1) must be so large that joinder of all members is impracticable;
(2) must contain common questions of law or fact shared by the class;
(3) have claims or defenses from the named representatives that are typical of those in the class; and
(4) have representatives that fairly and adequately protect the interests of the class
A defendant may object to personal jurisdiction in two ways:
(i) by raising it in a pre-answer motion to dismiss under Rule 12(b); or (ii) if he has not moved under Rule 12(b), by raising the defense in his answer.
a court may grant an ex parte temporary restraining order without notice of the hearing to the adverse party if the moving party does the following:
(i) gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition;
(ii) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and
(iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained
Discovery
discovery may be had of any matter not privileged that is relevant to the claim or defense of any party, including the identity of persons having knowledge of relevant facts. The costs of discovery and the needs of the case also will be considered.
Discoverability of work product
work product of lawyers and others prepared in anticipation of litigation is discoverable only on a showing of substantial need and to avoid undue hardship in obtaining the material from other sources.
reports prepared immediately after the accident were probably not prepared “in anticipation of litigation” because no case had been filed at the time, nor is there any indication that litigation was threatened or that any impressions or trial strategy of the attorney was involved in making the reports. “fresh” items from other sources, as such items made so closely after the accident simply could not be re-created.
Disclose of memoranda
The plaintiff must disclose its knowledge and possession of the memoranda without a discovery request. Without waiting for a discovery request, a party must provide to the other parties copies or descriptions of documents that are in the disclosing party’s possession or control and that the disclosing party may use to supports its claims or defenses.
Removal
Removal to federal court claims based on diversity jurisdiction claims is possible, but some actions may not be removed. Those actions include certain claims under the Violence Against Women Act of 1994, certain actions against railroads, claims that arise under the state worker’s compensation laws for the state in which the action was brought, and others.
Initial disclosure
A party must provide certain information early in the case, without awaiting a discovery request. This information includes the IDs of witnesses, documents and tangible things a party plans to use, info about damages, and any insurance policies that may apply to the judgment
Must ordinarily be made no more than 14 days after the parties hold the required 16(b) scheduling conference. This scheduling conference will normally occur w/i 90 days of the D making a FRCP 12 motion or answering the P’s complaint
Interrogatory
a set of written questions to be answered in writing by the person to whom they are addressed
Each party is limited to 25 questions directed to any other party unless the parties stipulate otherwise
Cannot be served before initial preconference and discussion of discovery
