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Civ Pro Flashcards

1
Q

What are the 3 types of Subject Matter Jurisdiction?

A
  1. ) Federal Question
  2. ) Diversity Jurisdiction
  3. ) Supplemental Jurisdiction
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2
Q

What is required for Federal Question Jurisdiction?

A

Exists when the claim arises under

(a) federal law,
(b) the U.S. Constitution, OR
(c) U.S. treaty.

The Federal issue must be presented in the Plaintiff’s “well-plead complaint”

A federal defense is not sufficient

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3
Q

What is required for Diversity Jurisdiction?

A

1.) Diversity - must be complete diversity between the parties

Individuals: domiciled where they are present with intent to remain indefinitely

Corporations: Domiciled where incorporated AND where the principal place of business is located.

2.) Amount in Controversy - Must exceed $75K

Based on damages alleged in good faith in the Complaint

Injunctive Relief: can have monetary value assigned

May aggregate claims against one D (or against multiple Ds if they are jointly and severally liable).

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4
Q

What is Supplemental Jurisdiction?

A

Court may exercise supplemental jurisdiction over additional claims so long as the claims arise out of a common nucleus of operative fact as the original claim

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5
Q

When do courts have the authority to reject supplemental jurisdiction

A
  1. ) The state claims are complex or predominate the lawsuit
  2. ) The federal claim is dismissed; or
  3. ) There are any other compelling reasons to decline jdx.
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6
Q

What is Removal?

A

Plaintiff files in state court and a defendant seeks to remove to federal court. Can remove if:

  1. Federal Court has SMJ
  2. All defendants agree.
  3. No defendant is a resident of the forum state.

Motion for removal must be filed within 30 days of receiving the complaint.

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7
Q

Abstention Doctrines

A

Federal courts MAY abstain from hearing a case when it would intrude upon the powers of another court. Additionally, a court may stay a case arising from ambiguous state law to await the outcome of a pending state court case.

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8
Q

What are the traditional basis for Personal Jurisdiction?

A
  1. ) Service while voluntarily present in state
  2. ) Domicile
  3. ) Consent/waiver
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9
Q

What do most state statutes allow concerning PJ? (on the exam)

A

to the extent allowed by the constitution. (Long arm statutes)

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10
Q

What are the 2 requirements for Due Process under a long-arm statute?

A
  1. ) minimum contacts
  2. ) does not offend traditional notions of fair play and substantial justice
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11
Q

What is “minimum contacts?

A

a. ) purposeful availment - reasonably foreseeable to be sued in the state
b. ) relatedness - defendant’s conduct in relation to the action

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12
Q

What is specific jurisdiction? (Under the umbrella of long arm statute due process)

A

The Action arises out of defendant’s conduct

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13
Q

What is general jurisdiction?

A

Contacts so substantial and of such nature that D is essentially at home;

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14
Q

Where is a corporation at home?

A

Where incorporated and where its principal place of business is located

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15
Q

Venue:

Which federal district can the original action be filed in?

A
  1. ) Any district in which the defendant resides if all defendants reside in the state where the district is located
  2. ) Where a substantial part of the events or omissions occurred, or where the property is situated, or
  3. ) If neither of the above apply, venue is proper in a judicial district where any defendant is subject to PJ.
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16
Q

Transfer of Venue:

If venue was improper when the case was filed, the court MUST either:

A

a) Dismiss the case; OR
b) Transfer the case to a proper court if the interests of justice require it.

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17
Q

Transfer of Venue:

If venue was proper when the case was filed, the court MAY transfer it if:

A

1) Needed for the convenience of the witnesses or in the interests of justice; AND
2) The case could have initially been brought in the receiving court (court has PJ and SMJ).

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18
Q

What does the Eerie doctrine stand for?

A

In a diversity case:

Federal courts will apply federal procedural law, BUT must apply the substantive law of the forum state in which it sits.

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19
Q

Procedural Laws for Erie:

A

civil procedure rules

statute of limitations (except in limited circumstances)

burden of proof

rebuttable presumptions.

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20
Q

What makes a state law Substantive?

A
  1. ) A state law that alters the calculation of damages is substantive
  2. ) statute of limitations that condition a substantive right or have a borrowing statute.
  3. ) A state law that creates evidentiary privileges is substantive.
  4. ) Choice of law rules
  5. ) Irrebuttable presumptions,
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21
Q

When Substantive Federal Law Applies

A

Federal law will apply for matters governed by the U.S. Constitution, laws passed by Congress, and valid federal law that preempts state law under the Supremacy Clause.

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22
Q

What is a TRO?

A

Temporary Restraining Order - a party seeks to maintain the status quo prior to a hearing for a preliminary injuction

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23
Q

What must be shown to obtain a TRO?

A
  1. ) Immediate and irreparable injury would occur absent the TRO.
  2. ) certify in writing any efforts made to give notice to the adverse party and why notice should not be required.*

*A Court may grant a TRO without the opposing party present

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24
Q

What must a plaintiff show to get a Preliminary Injunction?

A
  1. ) Likely to succeed on the merits
  2. ) Likely to suffer irreparable harm
  3. ) Harm to plaintiff outweighs harm to defendant (balance the harm); and
  4. ) Injunction is in the best interests of the public.
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25
Q

Service of Process & Notice Timing:

A

Summons & Complaint MUST be served on D within 90-days after filed with the court.

− Otherwise, the court must:

(a) dismiss the action without prejudice against that D; OR
(b) order that service be made within a specified period of time.

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26
Q

Process Server

A

Service may be made by any person who is: (1) at least 18 years old, AND (2) not a party to the action.

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27
Q

How do you serve an individual, corporation, and foreign defendant??

A

Individual: may be served: (a) personally; (b) to someone of suitable age and discretion residing at the individual’s current dwelling; (c) via an agent (by appointment or by law); OR (d) in accordance with state law of the forum state or where service is made.

Corporation: may be served: (a) in accordance with state law of the forum state or where service is made; OR (b) to an officer or managing/general/authorized agent.

Foreign Defendant: may be served via any manner NOT prohibited by international agreement.

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28
Q

When can a lack of SMJ motion be raised?

A

Can be raised any time, even on appeal

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29
Q

When may a failure to state a claim or failure to join a necessary party under Rule 19 be raised?

A

May be raised in any pleading, in any motion for judgment on the pleadings, or at trial.

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30
Q

Waived Defenses :

If the following defenses are NOT included in the D’s first response (answer/ pre-answer) they are deemed waived:

A

(1) lack of PJ;
(2) improper venue;
(3) insufficient process; and
(4) insufficient service of process.

BUT, courts have allowed amending Motions to Dismiss when: (1) promptly made; AND (2) it’s prior to a hearing on the original motion.

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31
Q

Types of Pleadings:

A

Complaint: Plaintiff’s assertion of cause of action, court’s jurisdiction & demand for relief

Answer: Response to complaint, counterclaim, crossclaim, or third-party complaint that asserts admissions, denials, affirmative defenses & other claims

Third-party complaint: Party’s assertion that nonparty is liable for damages party may owe in original suit based on legal theory (eg, indemnity, contribution)

Reply: Response to answer (only required if court ordered)

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32
Q

Amendments to Pleadings

Adding Affirmative Defenses

A

A party must set forth ALL affirmative defenses to the claim alleged.

− If a party fails to do so, the pleading MUST be amended.

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33
Q

Amendment to Pleading:

As of Right

A

Allowed to amend once as a right within 21-days after service of:

a) the original pleading; OR
b) a responsive pleading or pre-answer motion to the original pleading.

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34
Q

Amendment to Pleading:

By Permission

A

in all other cases, an amendment is allowed:

a) with the opposing party’s written consent; OR
b) with leave of the court upon motion (should be freely granted when justice so requires).

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35
Q

Relation Back Doctrine:

When a Complaint is amended to add a
New Claim

A

relates back to the date of the original filing so long as it arises out of the same transaction or occurrence as the original pleading allegations.

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36
Q

Relation Back Doctrine:

When a Complaint is amended to add a New Defendant

A

relates back so long as:

1) same transaction and occurrence;
2) new party received notice of the original action within 90 days of filing; AND
3) new party knew (or should have known) that the action would have been brought against it but for a mistake in the party’s identity.

37
Q

Permissive Counterclaims (a claim against an opposing party)

A

Counterclaims that are not compulsory.

38
Q

Compulsory Counterclaim

A

a claim that:

(1) arises out of the same transaction or occurrence; AND
(2) does not require adding another party out of the court’s jurisdiction.

− MUST be stated in party’s pleading or it’s deemed waived.

39
Q

Rule 11 – Representations to the Court

A

All papers served in a litigation MUST be signed by an attorney of record (or by the party if unrepresented).

40
Q

Rulle 11:

When presenting the papers to the court, the party certifies the following:

A

1) It is not being presented for any improper purpose;
2) The legal contentions are warranted and non- frivolous;
3) The factual contentions have evidentiary support or likely will after discovery; AND
4) denials of factual contentions are warranted or reasonably based on lack of information.

*NOTE: Rule 11 does not apply to discovery or discovery motions.

41
Q

Rulle 11:

Sanctions Imposed

A

The court may issue sanctions (by motion or on its own) for failure to comply with Rule 11.

42
Q

Rulle 11:

Nature of Sanctions Imposed – are within the discretion of the court, and can be:

A

a) non-monetary directives;
b) pay a penalty; or
c) pay reasonable attorney’s fees/expenses

resulting from the violation.

43
Q

Rulle 11:

Liability for Sanctions:

A

− Generally, a law firm is jointly responsible for a violation by its partner, associate, or employee.

− Monetary sanctions CANNOT be issued against a client for an unwarranted claim/defense/legal contention made by their attorney.

44
Q

A party CANNOT file a Rule 11 motion with the court without first:

A

1) serving the motion on the offending party; AND
2) giving the opponent 21 days to withdraw or correct the paper/pleading.

45
Q

Permissive Joinder of Parties

Multiple plaintiffs or defendants MAY be joined in one action if:

A

1) joint and several relief is asserted by them or the claim arises out of same transaction or occurrence;
2) a common question of law or fact exists; AND
3) SMJ is present for each claim.

Logical Relationship Test: all logically related events for a legal action are within the meaning of same transaction or occurrence.

46
Q

Required Joinder of Parties

A party MUST be joined if:

A
  1. The party is Necessary; and
  2. Joinder is Feasible
47
Q

Required Joinder of Parties

A party is “Necessary” if:

A
  1. ) Court cannot grant complete relief without the party
  2. ) The absent party claims an interest that would be harmed; OR
  3. ) The party’s absence creates a substantial risk of multiple liability or inconsistent obligations.
48
Q

Required Joinder of Parties

Joinder is feasible if:

A

1) Joinder will not remove SMJ; AND
2) Court has PJ over the party.

49
Q

Required Joinder of Parties

If joinder is NOT feasible, the court will consider factors to decide whether to continue or dismiss the action:

A

▪ whether the party’s absence might prejudice any other party;

▪ whether prejudice can be lessened or avoided;

▪ whether an adequate judgment be rendered;

and

▪ if plaintiff would have an adequate remedy if the case is dismissed.

50
Q

Intervention in an Action

Intervention as of Right

A court MUST permit a non-party to intervene in an action if it demonstrates it:

A

a) Has an interest in the case
b) Their interest would be harmed, and
c) Their interest is not adequately represented in the case.

51
Q

Intervention in an Action

Permissive Intervention – A court MAY allow a non- party to intervene when the non-party:

A

1) Files a timely motion; AND
2) Either:
a) Has a claim/defense that shares a common question of law or fact with the main action; OR
b) Is given a conditional right to intervene by federal statute.

52
Q

Impleader (Third-Party Actions)

D may bring a third-party into an action only if:

A

1) The third-party is/may be liable to D,
2) for all/part of the judgment in the action.

*Claims merely arising out of the same transaction or occurrence are insufficient unless derivative liability exists (i.e. indemnification, contribution).

53
Q

Impleader (Third-Party Actions)

Commencement of a Third-Party Action

A

Defendant (as a third-party plaintiff) must serve a Summons & Third-Party Complaint upon the third-party.

− Leave of the court is required if more than 14- days have passed since serving its Answer.

54
Q

Class Actions Requirements:

A person is allowed to sue on behalf of a class when there is:

A

1) Numerousity – class is so numerous that joinder is impracticable;
2) Commonality – questions of law or fact are common to the class;
3) Typicality – the claims/defenses of representative parties are typical of the class; AND
4) Adequacy of Representation – the representative parties (incl. counsel) will fairly and adequately protect the interests of the class.

55
Q

Class Certification: The class will be certified if:

A
  • Prejudicial risk – when separate actions would create a risk of inconsistent decisions regarding the parties or impairing absent class members’ interests
  • Common question – when common questions of law or fact predominate over individual questions and a class action is the best method to fairly and efficiently adjudicate the dispute
  • Final equitable relief – when injunctive or declaratory relief is appropriate because the opposing party’s actions generally apply to the whole class
56
Q

What is the Scope of Discovery?

A

A party may obtain all non-privileged info that is:

1) Relevant to any party’s claim or defense; AND
2) Proportional to the needs of the case.

*The info need not be admissible into evidence to be discoverable.

  • Once a person reasonably anticipates litigation, that person has a duty to preserve ALL relevant evidence.
57
Q

Depositions:

A party is permitted up to:

A

10 depositions of any person/party, so long as the deposition is:

1) Is limited to 1 day of no more than 7 hours; AND
2) Proper notice is given (reasonable written notice).

*A subpoena is NOT required to depose a party to the action.

58
Q

Depositions

Unless stipulated otherwise, a party MUST obtain leave of the court:

A

a) To take more than 10 depositions;
b) To depose a party again – if they had already been deposed in the action; OR
c) If it’s seeking a deposition prior to the Rule 26(f) meet and confer conference.

59
Q

Rule 26(g) – Discovery Disclosures & Sanctions:

All discovery papers served in a litigation MUST

A

be signed by an attorney of record (or a party personally if unrepresented).

60
Q

Rule 26(a) – Initial Disclosures – Without request, each party MUST provide these initial disclosures to opposing parties within 14-days after the Rule 26(f) “meet and confer” conference:

A

1) Contact info of individuals likely to have discoverable info, plus the info they likely possess;
2) Copy or description of all documents, ESI, & tangible things the party may use to support its claims/defenses (unless it will be used solely for impeachment);
3) Computation of each category of damages; AND
4) Any insurance agreement that may be liable to satisfy a judgment in the action.

*If a party fails to provide the above, that party is NOT allowed to use that witness/info on a motion, hearing, or trial UNLESS the failure was substantially justified or harmless.

61
Q

Attorney Work Product Privilege

A

Protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation UNLESS:

1) A substantial need for the materials exists; AND
2) A substantial equivalent cannot be obtained without undue hardship.

62
Q

Pretrial Conference

The court may order the attorneys (and pro-se parties) to appear for a Pre-trial Conference to

A

control the management/scheduling of the case.

− Attendance is MANDATORY.

*Modification of Pretrial Conference Order can only be modified by the court to prevent manifest injustice.

63
Q

Pretrial Conference Sanctions – May be issued if a party:

A

(a) fails to appear;
(b) is substantially unprepared;
(c) does not participate in good faith; OR
(d) fails to obey a scheduling/pretrial order.

64
Q

Pretrial Conference Sanctions include :

A

(a) prohibiting a party from supporting/opposing certain claims or defenses;
(b) striking all/part of the pleading;
(c) dismissing all/part of the action; OR
(d) a default judgment.

65
Q

If the Expert is not called as a witness, is his report discoverable?

A

Only in EXCEPTIONAL circumstances

66
Q

Can a physical or mental exam be compelled?

A

They can be compelled if the party’s mental or physical condition is at issue

67
Q

Motion to Dismiss / Judgment on the Pleadings

Motion to Dismiss Standard:

A

Requires the court to:

(1) consider the facts in the light most favorable to the non-moving party; and
(2) determine if there is any basis upon which relief can be granted.

− The court DOES NOT evaluate the merits of the case.

68
Q

Motion to Dismiss Grounds:

A

1) Lack of SMJ;
2) Lack of PJ;
3) Improper venue;
4) Insufficient process;
5) Insufficient service of process;
6) Failure to state a claim upon which relief can be granted;
7) Failure to join a necessary party.

Motion for Judgment on the Pleadings – After Defendant answers, a motion on the above grounds is called a “Motion for Judgment on the Pleadings”.

69
Q

Summary Judgment Motion:

A court will grant an SJ motion when:

A

1) There is no genuine issue of material fact; AND
2) Movant is entitled to judgment as a matter of law.

*The court MUST view the evidence in the light most favorable to the non-moving party.

− An SJ motion may be sought on the entire case or for certain issues (partial summary judgment).

− If a Motion to Dismiss (or Motion for Judgment on the Pleadings) presents matters outside the pleadings, the court may treat the motion as a SJ Motion.

70
Q

JMOL will be granted if:

A

1) The non-moving party has been fully heard on the issue during a jury trial; AND
2) The court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on that issue.

*The court MUST draw all reasonable inferences in the light most favorable to the opposing party.

71
Q

Renewal of JMOL Motion:

A party may renew its JMOL motion only if it moved before the case was submitted to the jury and is filed

A

within 28 days of the entry of judgment.

72
Q

Motion for a New Trial:

Must be filed no later than:

A

28 days after the entry of judgment.

73
Q

Grounds for a New Trial:

A

a) Error at trial that makes judgement unfair;
b) New evidence surfaced that could not be obtained with due diligence for the original trial;
c) Prejudicial misconduct of a party, attorney, third-party, or juror;
d) Judgment was against the weight of evidence;

OR

e) Verdict was excessive or inadequate.

74
Q

Default Judgment – A default judgment will have a preclusive effect if the court had jurisdiction (SMJ + PJ).

States vary as to effect of preclusion a default judgment is given, BUT:

A

▪ A state court MUST give a judgment in a federal diversity action the same effect it would give a state court judgment.

▪ A default judgment bars a party from asserting compulsory counterclaims that could have been raised in the original action.

75
Q

What are the 3 requirements for Claim Preclusion?

A
  1. ) The same plaintiff and the same defendant from lawsuit #1 (or in privity)
  2. ) Lawsuit #1 ended in a valid final judgment on the merits; AND
  3. ) Claimant is asserting the same claim as in lawsuit #1
76
Q

What are the 4 elements for Issue Preclusion?

A
  1. ) Same issue was actually litigated
  2. ) Final and valid judgment on the merits
  3. ) Issue was essential to the judgment, AND
  4. ) Party against whom issue preclusion is sought had opportunity to litigate the issue in the prior action (their day in court).

*Generally, a non-party to a prior action MAY assert issue preclusion.

77
Q

Which amendment gives people the right to a jury trial?

A

The 7th amendment - right to trial by jury when damages exceed $20.

78
Q

When must a jury trial be demanded?

A

Must demand jury trial within 14 days after service of last pleading.

79
Q

What are the requirements for appeal?

A
  1. Generally there must be a final judgment
  2. Appeal is filed with 30 days after entry of judgment.

*Interlocutory appeal allowed after the denial or grant of an injunction

80
Q

Final Judgment is one which:

A

1) Ends the litigation on the merits (ALL claims are resolved); AND
2) Leaves nothing for the court to do but execute the judgment.

81
Q

EXCEPTIONS to Final Judgment Rule:

A

1) Rule 54(b) Exception (There’s several claims in the case, Court rules on one of the issues, and then “expressly determines that there is no just reason for delay” and directs the judgment be entered.)
2) Statutory Exceptions (injunctions, possession of property, patent infringement)
3) Certified Appeal Exception (District court says it can be appealed, Court of Appeals agrees to hear appeal)
4) Collateral Order Doctrine (court rules an issue that is separate from the merits of the action, and that issue would be unreviewable on appeal from a final judgment)
5) Writs of Mandamus & Prohibition (When there is an abuse of authority by trial court - very rare)
6) Pendent Appellate Jurisdiction (if there’s one issue already being heard on appeal, another one can be added - like supplemental jurisdiction)
7) Certification of Class Action (order granting/denying certification - must be filed within 14 days of entry)

82
Q

EXCEPTIONS to Final Judgment Rule:

Statutory Exceptions – can immediately appeal orders for:

A

: (i) injunctions, (ii) receiverships, (iii) possession of property, (iv) liability in an admiralty action, and (v) patent infringement orders that are final except for an accounting.

83
Q

EXCEPTIONS to Final Judgment Rule:

Certified Appeal Exception – an immediate appeal is allowed when:

A

1) A federal district court judge certifies certain grounds for immediate appeal; AND
2) The Court of Appeals agrees to permit the appeal.

*Application for the appeal must made within 10 days after entry of the order.

84
Q

EXCEPTIONS to Final Judgment Rule:

Collateral Order Doctrine – allows an immediate appeal if the interlocutory order:

A

1) Conclusively determines the disputed question;
2) Resolves an important issue that is separate from the merits of the action; AND
3) Is effectively unreviewable on appeal from a final judgment.

Examples of collateral orders

District court orders:

  • denying state 11th Amendment immunity
  • denying government official/employee immunity
  • vacating attachment of vessel
  • refusing to require security bond pursuant to state law
  • remanding action to state court based on abstention
85
Q

EXCEPTIONS to Final Judgment Rule:

Writs of Mandamus & Prohibition – allows an immediate appeal if

A

there is an abuse of authority by a trial court.

− Issued only in exception circumstances.

− Cannot be used to correct an ordinary error.

86
Q

EXCEPTIONS to Final Judgment Rule:

Pendant Appellate Jurisdiction:

A party may seek to have a non-final order reviewed along with another appealable order currently pending before the appellate court when:

A

a) A non-appealable decision is inextricably intertwined with an appealable decision; OR
b) Review of the non-appealable order is necessary to ensure a meaningful review of the appealable order.

87
Q

EXCEPTIONS to Final Judgment Rule:

Rule 54(b) Exception – an immediate appeal is allowed when:

A

1) Action has multiple parties or multiple claims;
2) Court directs final judgment for some of the claims or parties; AND
3) Court expressly determines that there is no just reason for delay of an appeal.

88
Q

EXCEPTIONS to Final Judgment Rule:

Certification of Class Action – an order granting/denying class-action certification may be appealed when:

A

1) A petition for permission to appeal is filed within 14 days after entry of the order; AND
2) The Court of Appeals agrees to hear the appeal.

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