CIV PRO Flashcards

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1
Q

What is the basic analysis for PJ?

A
  1. Must satisfy state long arm statute
  2. Satisfy due process

Generally, the analysis for both is the same.

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2
Q

What is the analysis for personal jurisdiction?

A

Does the court have general jurisdiction? - is D at home in the forum? if not, then move to specific jurisdiction.

Does D have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and justice?

(1) Contact - (a)purposeful availment (b)foreseeaility that they would be hailed into court
(2) Relatedness - Does the contact include the very thing that harmed P?
(3) Fairness - (a) burden on D and witnesses(severe disadvantage in litigation? (b)States interest (c) P’s interest.

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3
Q

Notice must be what - Civ PRO?

Who can serve process?

When must process occur?

What are the ways in which process can be served to an indivudal in the U.S?

A

Reasonably calculated, under the circumstances, to apprise interested parties of the action.

Any non party who is at least 18 years old.

If in the U.S, within 90 days after filing the complaint.

(1) Personal service
(2) Substitued - must be a D’s usual place of abode and to someone of suitable age and discretion who resides there.
(3) To D’s agent
(4) Those methods permissable by state law. (state where the court sits or where service occurs.

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4
Q

What are the permissable ways in serving process on a business?

What are the ways in which you can serve someone in a foreign country?

When D waives service, do they waive any defense?

A

Officer, managing or general agent or state law methods.

  1. As directed by american court
  2. Method allowed by internaitonal agreement
  3. method allowed by foreign country law
  4. method directed by foreign offical after request from american court
  5. personal service
  6. Mail sent by clerk of the american court, requiring signed recipet

No.

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5
Q

Federal courts have jurisdiction over what two cases?

A human is a citizen of what state?

State courts have SMJ over what?

A
  1. FQ
  2. DOC
    1. Case must be between two different state citizens or a citizen of a U.S state and an alien.
    2. Amount in controversey must exceed 75,000.
  3. Where they are domiciled. - (1) presence (2) intent to permanently remain.

Everything else.

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6
Q

What is the citizenship of a corporation for diveristy purposes?

An unincorporated association is a citizen of which state?

A
  1. principal place of business and 2. state of incorporation.

Any state in which their individual partners are citizens.

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7
Q

When can you aggregate claims to meet diveristy $ requirement?

A

One P aggregating against One D or claims against jointly responsible D’s.

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8
Q

To establish FQ SMJ, what must P show?

A

The claim in P’s claim must arise under federal law. - is P establishing a federal right?

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9
Q

When can D remove from state court to federal court?

Must all D’s join removal action?

Can the plaintiff remove?

What cases can be removed? what are the exceptions?

To what court is the case removed to?

Once D files notice of removal, what can P do?

A

Must remove no later than 30 days of service of the paper that shows the case is removable.

Yes.

NEVER, even if they are D on counterclaim.

Those that meet requirements for diversity of FQ. Exceptions are, if removing based on diversity ONLY. (1)No removal if any D is citizen of the forum AND no removal more than one year after the case was filed in state court.

The federal district embracing the state court where the case was filed.

Move to remand. If removal was improper for reason other than SMJ, they have to do 30 days after notice of removal. If SMJ, they can remand any time.

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10
Q

What is the test for supplemental jurisdiction?

A
  1. Is the orginial case properly in federal court? 2. Is there a common nucelaus of operative fact between the original case and sought claim? 3. is the limitaiton applicable?

The limitaiton is that in a diversity case, P cannot invoke supplemental jurisdiction. however, when there are multiple P’s, and the claim by one of them doesnt meet the controversey requirement.

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11
Q

When does the eerie doctrine apply?

How do you approach an Eerie problem?

A

A federal case based on diversity.

  1. Is there a valid federal law or statute, or FRCP, on point which directly conflict with the state law? if yes, apply federal law due to suprememcy clause. FRCP - presumptively valid.
  2. If no, Judge must apply state law if the issue is substantive. (1) elements of claim or defemse (2) statute of limitaitons (3)rules for tolling SOL (4)conflict or choice of law rules (5) standard of whether to grant new trial when damages are challenged.
  3. If there is not federal law on point and the issue is not substantive, judge must determine if it is substantive. look at 1. outcome determinative?2. Balance of interests. 3. prevent forum shopping.
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12
Q

Where may P lay venue?

What must D show to transfer venue?

What is forum non coveniens and how does it differ?

A
  1. District where all D’s reside or
  2. Substantial part of claim occured there. NOTE: doesnt apply where state court case is removed.

SPECIAL rules - if all D’s reside in same forum, you can use any district where one resides. If D doesnt live in U.S, you can use any district unless there is another D.

  1. if originial venue is proper, D must show that transfaree is the center of gravity based on public and private factors. ( where the evidence and witnesses are, forum selection clause etc.).

Center of gravity is in a court of another judicial system so federal court dismisses or stays the case.

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13
Q

What must a complaint contain?

A
  1. grounds for SMJ 2. facts supporting a plausible claim for relief 3. demand for relief. NOTE: fraud, mistake and special damages require more particularity.
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14
Q

Under rule 12, D must file a motion or answer how long after recieving the complaint?

What are the 12(b) defenses?

What are the waivable defenses and how can you avoid waiving them?

A

21 days after being served with process. (60) days if service was waived.

  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 indispensible party.

2,3,4,5 - must be included in first motion or answer unless they are waived. If the first motion is denied, D has 14 days to answer.

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15
Q

D must do what in an answer?

A
  1. Admit, 2. Deny 3. state that you lack sufficient information to admit or deny. (b) raise affirmitive defenses.
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16
Q

When can pleadings be amended?

How does a supplemental pleading differ from amended?

A

(1) P has right to amend her complaint once no later than 21 days after service of D’s rule 12 response. D has right to amend her answer once no later than 21 days of serving her asnwer. REMEMBER, right to waive saves the waivable defenses.
(2) No right - if justice so requires, court will allow right to amend unless it causes delay, predjuice.
(3) A variance if the evidence at trial doesnt match the pleadings.
4. Amendment after SOL has run - if the claim concerns conduct, transaction or occurence as the originial complaint then it relates back or to change a D after the statute has run. - NOTE - this will occur when P sues wrong D.

Concerns conduct after filing of original complaint.

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17
Q

What is required by rule 11?

A

Lawyer or pro se party, after reasonable inquiry, whenever they sign a document, certifies that 1. paper is not for improper purpose 2. legal contentions are warranted by law 3. factual conventions and denials have evidentiary support. - continued certifaction everytime you advocate a position in the document.

18
Q

What is the test for a necessary and indispensible party?

A
  1. Who is necessary and required? - (a) without A, court cannot accord complete relief (b) A’s interest may be harmed if not joined (c) A claims an interest that subjects a party to a risk of multiple obligations. JOINT TORTFEASORS NEVER NECESSARY
  2. Is it feasible to join? (a) is there PJ? (b) will it destroy diversity if joined?

If not feasilbe, court can either continue or dismiss.

19
Q

What is a counter claim? When it is compulsory?

A

A counterclaim is a claim against an opposing party.

Compulsory when it arises out of the same T/O. If you dont use it, you lose it

Permissive when it does not arise out of same T/O.

REMEMBER, even after you decide, it must have SMJ on it own, so either try FQ or diveristy or supplemental. Limitaiton does not apply because this is not a P.

20
Q

What is a cross claim?

A

A claim against a co - party that must arise out of the same T/O.

21
Q

What is an impleader?

How do you do this?

When can you do it?

A

D is bringing in a TPD - usually for indemnification or contribution.

(1) File third party complaint naming TPD (2) servce process on TPD (must have PJ).

Within 14 days of serving your answer.

22
Q

What is intervention of right ?

Permissive internvetion?

A

A’s interest may be harmed if she is not joined.

Must show at least one common question.

23
Q

How do you analyze a class action question?

Can you appeal denial of class certification?

WHen is notice required?

How do you determine SMJ for a class action?

A
  1. Must satisfy (1) numerosity (2) commanlity - resolution for everyone (3) Typicality - reps must suffer same harm as class and (4) adequate represenative. THEN
  2. Type of class.
    (1) Predjucie - class treatment necessary to avoid predjuice to class members
    (2) Class seeks an injunction because D treated class memebrs alike
    (3) Damages - (1) common questions predominate (2) Class action is superior method to resolution.

Yes.

Only in a Type 3 class action. The reps pay for this notice.

Look at the reps citizenship and amount in controversey.

24
Q

When are the initial required disclosures due?

What are the required disclosures?

A

Within 14 days of a 26(f) conference.

(1) identiies of persons with discoverable information that you may use to support your claims or defenses (2) Documents and things you may use to support (things in your control (3) computation of relief and documents supporting it and (4) insurance coverage.

Identity of expert witnesses if they will be used at trial and a written report by them.

25
Q

When is required pre trial disclosure due?

A

No later than 30 days before trial.

26
Q

What are the discovery tools?

A
  1. Depositions - you get 10 of them, and must subpoena a non - party and it must occur within 100 miles of their home or employment.
  2. Interrogatories - ONLY TO PARTIES. - must respond within 30 days (33 if mailed) of service, with information reasonably available to you. You get 25 of them. ( if answer is in business records, i can give them to you if burden is the same).
  3. Requests to produce - ONLY TO PARTIES.
  4. Medical Exam - must get court order (1) person health is in actual controversey and (2) good cause.
  5. Request for admission - ONLY TO PARTIES - 30 days from service is when they are due.
27
Q

What is the general scope of discovery?

A

(1) Relevant and (2) proportional to the needs of the case.

28
Q

What is work product?

When are witness statements in work product allowed?

What is absolutely protected?

Are identities ever protected?

A

Material prepared in anticpation of litigation. - Doesent need to be a lawyer.

(1) substantial need (2) not otherwise available.

Opinions, mental impressions, legal theories.

No, people with discoverable information are not protected.

29
Q

How long is TRO allowed to last?

What must an applicant for a temporary injunction show?

A

14 days but can be extended another 14 days. If extended past that, it becomes a preliminary injunction.

(1) irrepreable harm (2) likely to win on the merits (3) balance of hardship favors him (4) public interest.

30
Q

What is a default judgment?

A

D doesnt file within 21 days, so you can go to the court and get judgment. To set aside, D must show good cause and a plausible defense.

31
Q

What does the judge do when determining a 12(b)6 motion?

A

(1) igonore legal conclusions in the pleadings (2) only look at the factual allegations and determine, in a light most favorable to P, whether a plausible claim has been stated.

32
Q

What is the summary judgement test?

When can you move for one?

When making this determination, what does the judge look at?

A

Rule 56 - (1) no genuine dispute of material fact (2) moving party entitled to judgment as a matter of law.

No later than 30 days after the close of discovery.

Light most favorable to nonmoving party, the look at (1) affidavits (2) sworn statements (3) depos (4) interragotories. All this made under oath.

NOTE - judge doesnt look at credibility of witnesses here.

33
Q

When is the discovery plan due?

A

14 days after rule 26(f) conference.

34
Q

the 7th amendment does what?

What are the two ways you can strike juror?

What are the three type of jury trials?

A

entitled to a jury in matters at law in FEDERAL COURT. Must requrest within 14 days.

  1. 3 for no reason
  2. Any if you believe they wont be impartial.
  3. General - jury just says who wins
  4. Special - jury responds to factual questions but doesnt say who wins
  5. General with written questions - both.
35
Q

Bench trial - judge must report what on the record?

A

(1) findings of fact
2. Conclusions of law stated seperately.

36
Q

What is a JMOL?

What is a RMOL?

A

after evidence is presented, you argue that reaosnable people could not disagree on the results, so judge enters judgement without letting jury decide.

Same thing - can be within 28 days of entry of judgment. - must have timley moved for JMOL.

37
Q

When do you have to move for new trial?

A

28 days after entry of judgment.

38
Q

What is the final judgement rule?

What are the main exceptions to this?

A

Loser has right to appeal if the order is a final judgment, meaning that the merits of the case were fully determined and the trial court doesnt have anything else to do. - Must be within 30 days of entry and filed with district court.

Preliminary injunction

Collateral order doctrine - (1) distinct from merts of case (2) important legal question (3)essentailly unreviewable if parties wait for final judgement.

Class action certifications.

39
Q

What are the standards of review for an appelate court?

A

Matters of law - de novo.

Bench trial facts - affirm unless clearly erroneous.

Jury trial - affirm unless reasonable people couldnt make that finding

Discretionary matters - affirm as long as no abuse of discretion.

40
Q

What is the claim preclusion test?

What is the issue preclusion test?

A

(1) Same claimaint and same D
(2) final judgement on the merits ( unless it was on jurisdiction, venue, or indespensible party) it was on the merits.
3. Same claim - any right to relief arising from same T/O.
1. Same issue
2. acttually litigated
3. essential to judgment
4. Valid judgment on the merits
5. can only be used against a party in case 1 or someone with privity
6. Can be used by someone who was party to case 1

If someone tries to use who was not a party in case 1, they can do so defensively if attacked party had opportunihty to fully litigate.

Trend for offensive if it is fair - but probably not allowed.