Civ Pro Flashcards
When may the clerk enter default notice?
Only if defendant has not filed any papers at all
Is leave of court required to depose a person (party or nonparty)?
Generally, any party may depose a person without leave after reasonable notice to all other parties
How many times can an action be voluntarily dismissed without prejudice?
Once, second voluntary dismissal will be with prejudice
If it appears on the record that no activity has occurred for 10 months and there is no order/ stipulation staying the case….
any interested person, or the court, can serve notice to all parties that no record activity has occurred
When may plaintiff voluntarily dismiss her action?
Any time before jury retires or case is submitted to the court in a nonjury case
What are restrictions on plaintiff’s ability to voluntarily dismiss her action?
(1) pending motion for summary judgment; (2) no dismissal by notice in an action where property is seized by the court; and (3) no dismissal by notice if a counterclaim is filed and cannot remain pending for independent adjudication
What matters must be pled with particularity?
(1) fraud; (2) facts supporting puni damages (gross negligence + intentional misconduct); (3) special damages
by when must defendant respond to complaint to avoid default?
20 days of being served; can respond by motion or answer
A compulsory counterclaim…
arises out of the same transaction or occurrence of P’s claim; it must be filed or it is waived forever
what must P do if D files a permissive counterclaim?
File a response within 20 days of service
Does plaintiff have a right to amend their complaint?
Yes, once BEFORE defendant serves an answer
Does defendant have a right to amend his answer?
Yes, once within 20 days of serving answer
If there is no right to amend…
you can move to amend and it will be granted if justice so requires; the proposed amended pleading must be attached to the motion; and if an amended pleading seeking relief is filed the opposing party must respond within 10 days of service
how do you get information from nonparties?
A subpoena –> (1) must give notice to all parties of request for subpoena at least 10 days before issuance; and (2) if a party objects the party seeking discovery may (a) move for a ruling on the objection; OR (b) take nonparty’s depo using a subpoena duces tecum
What does a subpoena duces tecum do?
Subpoena that requires the deponent to bring requested materials with her/him
What are the waivable rule 12 defenses?
- lack of PJ, improper service of process, insufficient process, and improper venue
- must be made in the first pre-answer motion, or in defendant’s answer if there are no preanswer motions or they are waived
On appeal, what is the standard of review for findings of fact in a bench trial? (made by judge)
- court affirms unless clearly erroneous
- high deference to trial courts findings of fact
What is the standard of review on appeal for questions of law?
- de novo
- no deference to trial court judge
What is the standard of review on appeal for questions of fact in a jury trial?
- court will affirm unless reasonable people could not have made that finding
- very deferential standard
When is notice of appeal filed?
with the district court within 30 days after entry of judgment being appealed
What is determined at the final pretrial conference?
- issues to be tried at trial and evidence parties will proffer
- this is recorded in pretrial conference order
When will a court modify a pretrial conference order?
Only to prevent manifest injustice
May a party make factually inconsistent statements in a pleading?
Yes, but it is still subject to rule 11 and can only be done if there is a good faith basis for believing both statements
Under the final judgment rule:
A judgment is not final until all the claims in the action have been resolved
When can a party request the court to certify a final judgment of a resolved claim?
when the resolved claim is separate and distinct from any unresolved claims; if certification is granted then the decision may be appealed
What are the judge’s options when the jury’s general verdict is inconsistent with the findings of fact?
(1) enter a verdict consistent with the jury’s interrogatories notwithstanding the general verdict; (2) direct jury to deliberate further; or (3) order a new trial
If the jury’s interrogatories are inconsistent with each other and inconsistent with the general verdict, the court must:
order a new trial or send the case back to the jury for further deliberation
What choice of law rules must a federal court, sitting in diversity, apply?
the choice of law rules of the state in which it sits to determine which competing state law rules will apply
What is the timing to make a motion for summary judgment?
Party can make the motion no later than 30 days after the close of discovery
When must service be made?
90 days after complaint is filed
What law must a federal court sitting in diversity apply?
State substantive law on all substantive issues and federal procedural law on all procedural issues
What does the seventh amendment preserve?
right to jury in civil actions at law; not in equity; in federal cases
Is there a right to demand jury trial in suits of law and equity?
Yes; facts underlying the legal claim will be tried to the jury and the facts related to the equitable remedies will be tried by the judged
What are the two ways parties can challenge jurors?
(1) for cause; or (2) peremptory challenges
For cause v. Peremptory Challenges?
(1) parties have unlimited for cause challenges; can be for any reason (but not race motivated)
(2) generally parties each have 3 peremptory challenges; can strike a juror for no reason at all (but cannot be based on race/ gender)
If a timely objection to jury instructions is not made, the court may only reconsider the instructions if:
there was clear error that affected a party’s rights
When must a RJMOL be made?
within 28 days after entry of judgment
What law applies to a federal court exercising federal question jurisdiction?
-Federal law applies; no eerie analysis is required
How is citizenship of a corporation determined for diversity purposes?
(1) state where its incorporated; and (2) principal place of business (the HQ)
A plaintiff may file notice of dismissal without court order….
if the defendant has not filed an answer or a motion for summary judgment; otherwise, plaintiff needs permission from the court
A voluntary dismissal will be
- without prejudice UNLESS the plaintiff has already dismissed the same claim in any federal/ state court
- if claim was previously dismissed, dismissal will be with prejudice
When may a court order a party to submit to physical/ mental examinations by a physician?
the physical and/ or mental condition of the party is in controversy; order must be made on a motion showing of good cause for the exam
What can the judge do if the jury’s findings of fact are inconsistent with the verdict?
(1) enter a judgment not withstanding the verdict; (2) order a new trial; OR (3) send the jury to further deliberate
When venue is initially improper, the court may:
(1) dismiss the case; or (2) transfer to a venue where the case could have originally been brought
If venue is originally proper, the court may transfer:
(1) to any venue where the case could have originally been brought; or (2) any venue that the parties consent to
The issue of a class action certification is:
based in equity and therefore a determination of whether the class action requirements have been met is reserved for a judge, not a jury
What two questions are involved in a personal jurisdiction analysis?
(1) whether the state’s long-arm statute gives PJ; AND
(2) whether constitutional DP clause allows for the court to exercise jurisdiction over the defendant
What must be included in a complaint to satisfy federal pleading standards?
enough facts to show a claim is plausible (called notice pleading)
When can a TRO be granted without notice to the other party?
(1) moving party gives specific facts that irreparable injury will result before the adverse party can be heard; (2) moving party certifies in writing of efforts to give notice if any and reasons why notice should not be required; and (3) moving party provides a security deposit
When ruling a renewed JMOL, the court views the evidence:
in the light most favorable to the nonmoving party
A demand for jury trial generally will be denied if:
all that is being sought are equitable remedies b/c right to jury only applies suits at common law
Can congress statutorily grant jury rights to claims that fall outside the 7th amendment?
Yes.
When can a district court order certifying a class be appealed?
within 14 days of entry and court of appeal has discretion to hear it
On a motion for summary judgment is the nonmoving party required to reply?
generally, the nonmoving party is required to respond to a motion for SJ or risk having SJ entered against them
By when must the nonmoving’s party response to motion for SJ be filed?
at least 20 days before hearing on the motion
A party moving for SJ, must serve the motion on the nonmoving party:
at least 40 days before the hearing
