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Civ Pro Flashcards

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1
Q

Can you waive Subject matter jurisdiction

A

NO

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2
Q

When can a lack of SMJ be raised

A

Any time by any party. Including for the first time on appeal

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3
Q

What are the two ways a Fed ct can have subject matter jurisdiction

A
  1. Federal Question- a claim arising under Federal Law
  2. diversity jurisdiction with amount OVER 75k
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4
Q

For Federal Question jurisdiction, the federal law must be in the ____’s complaint?

A

Plaintiff’s

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5
Q

When must the diversity exist?

A

When the complaint is FILED

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6
Q

or a decedent’s estate, what do you use for residency?

A

Where the decedent lived

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7
Q

For class action suits, where is the residency?

A

Where the named class reps are residents

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8
Q

for partnershipts

A

= a citizen of every state of which its members are citizens

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9
Q

Can you aggregate claims to get past the $75,000?

A

Yes if there is one P and one D

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10
Q

IF there are two plaintiffs, can they add up their claims to get past the $75,000?

A

No, each P must seek more than 75K

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11
Q

If there is one P and 2 D’s can the P aggregate claims against diff defendants to get past 75K

A

NO

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12
Q

if d’s are jointly liable, can the P then add up claims to get over $75k

A

YES

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13
Q

Which party can remove a case from state to Fed Ct

A

Defendants only

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14
Q

When can you remove a case to fed ct

A

Only if the fed court could have heard the case in the first place- I.e had SMJ

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15
Q

if the P’s claim is based on state law, can you remove the case to fed ct

A

Yes

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16
Q

For removal to Fed Court based only on Diversity Jurisdiction (not Fed question) what is the key limit for removal

A

Can only remove if the action is brought in a state in which no defendant is a citizen. And must remove within one year of starting the action in state court.

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17
Q

When can a Fed court hear additional claims over which the court would not independently have juruisdiction

A

If the claims constitute the same case or controversy- arising out of the same nucleus of operative facts

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18
Q

Is supplemental jurisdiction required or discretionary

A

Discretionary

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19
Q

Can you have supplemental jurisdiction for claims made by plaintiffs?

A

NO

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20
Q

Does a counter claim in a diversity action have to meet the $75,001 minimum?

A

NO- if it arises out of the same common nucleus of operative fact- ie compulsory counterclaim

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21
Q

what is a permissive counterclaim and when can it be heard?

A

One that does not arise from same nucleus of operative fact.

PERMISSIVE COUNTERCLAIMS MUST HAVE AN INDEPENDENT BASIS FOR SUBJECT MATTER JURISDICTION_ either fed ? or diversity amt

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22
Q

what is the requirement for a crossclaim

A

must arise out of same transaction or occurance

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23
Q

which party can bring cross claims

A

Defendants

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24
Q

Does supplemental jurisdiction ever allow you to join a non diverse d or non diverse P

A

NO

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25
Q

What are the two ways a court can have personal jurisdiction

A
  1. General-domicile
  2. Specific- long arm statute, due process clause
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26
Q

Can Personal jurisdiction be waived

A

Yes

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27
Q

4 requirements for a class action

A
  1. Numerosity- too many people to add all theu joinder
    2.commonality- all share common question of law or fact
  2. Typicality- claims of class reps are typical of class
  3. Adequacy-class reps fairly and adeq represent interests of class
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28
Q

How is the due process requirement for personal jursdixtion satisfied

A

Due process requirement fo personal jurisdiction is satisfied if the non resident has sufficient minimum contacts w the forum state so the jx does not offend traditional notions of fair play and substantial justice

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29
Q

Where is venue proper

A

Where any of the d’s live if they all live in same state. Or where incident happened

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30
Q

under Erie, what law must the Fed Ct apply

A

State substantive law of the state in which the Fed ct is located and Federal procedural laws

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31
Q

Elements for a preliminary injunction

A
  1. likelihood of success on the merits
  2. irreparable harm without relief
  3. Balance of equities in P’s favor
  4. in the best interest of public
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32
Q

What must be in a complaint

A
  1. short and plain statement of complaint
  2. Grounds for Subject matter jurisdiction
  3. Demand for relief sought
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33
Q

When can a party amend a pleading

A

Once within 21 days
Then after that, you need to ask permission of court

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34
Q

When must you object to improper venue

A

At first pre answer motion to dismiss or in first response pleading or it is waived

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35
Q

4 bases for in personum jurisdiction

A
  • voluntary presence
  • consent
    -domicile
    Long arm statute
    attachment
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36
Q

What is a compulsory counter claim

A

A claim arising out of the same transaction or occurrence as the plaintiff’s complaint. If D doesn’t assert it then he waives the right to sue on the claim forever

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37
Q

How many interrogatories are allowed

A

25

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38
Q

What is the time to respond to an interrogatory?

A

30 days

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39
Q

How long does the Defendant have to respond to the complaint

A

within 21 days of service of process

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40
Q

when must the summons be served on D

A

within 90 days of filing the complaint

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41
Q

number of preemptory challenges for each side

A

3

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42
Q

Number of challenges for cause per side

A

Unlimited

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43
Q

if there are multiple defendants, do they all have to consent to removal

A

Yes

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44
Q

What defenses are waived unless raised in pre-answer motion or in the answer

A

Lack of personal jurisdiction, lack of venue, insufficient process, insufficient service of process

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45
Q

what has the right to remove from state to federal court

A

Defendants

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46
Q

what are grounds for a new trial

A
  • error during trial
  • new evidence that would change the outcome
  • prejudicial misconduct of jurors, judge, parties, or counsel
  • verdict against the weight of evidence
    -verdict based on false evidence
  • excessive or inadequate verdict
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47
Q

When can a motion be made for judgement as a matter of law?

A

after the P’s case or after both sides have presented the evidence (essentially anytime before the case goes to the jury)

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48
Q

What does it mean if a judgment as a matter of law is granted

A

There is insufficient evidence for a jury to reasonably find for the other party

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49
Q

If a party files a counter claim, can they later object to personal jurisdiction

A

NO- any filing would be implied consent to PJ

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50
Q

what are the three requirements for claim preclusion

A
  1. final judgment on the merits
  2. same parties in exact same roles
  3. same claim from same transaction
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51
Q

Does failure to provide proof of service affect the validity of service

A

No

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52
Q

Can an oral deposition be used for a party to the lawsuit, a non- party witness, both or neither?

A

Both

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53
Q

if a class action is based on Federal question, do you need to have one member with amt > $75,000

A

No- if on federal question, amt doesn’t matter

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54
Q

what is necessary for supplemental jurisdiction

A

each additional claim must share a common nucleus of operative facts with an existing claim- i.e arise from same transaction or occurance

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55
Q

If Defendant agrees to waive service, what happens to time to answer complaint

A

Goes from 21 days to 60 days

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56
Q

is a TRO immediately appealable

A

NO

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57
Q

When does a TRO expire

A

14 days from issuance but can be extended for good cause

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58
Q

Does a TRO require notice

A

NO. But you must be given notice of the TRO before you can be held in contempt for violating it

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59
Q

What are claims/issues that must be pleaded with particularity

A

Fraud
Special damages
Mistake

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60
Q

when must an answer to a complaint be filed

A

within 21 days of service of process

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61
Q

what must be in answer to complaint?

A

Respond to allegations of complaint- admit, deny, lack insufficient info to admit/deny
Raise affirmative defenses

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62
Q

If you fail to deny an allegation of a complaint what is that considered

A

An admission

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63
Q

What is a compulsory counter claim

A

From the same transaction or occurrence, claim by D against P.
MUST be in the answer or it is waived

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64
Q

What is a permissive counterclaim

A

Claim by D against P that does not arise from same transaction or occurance as any of P’s claims
NOT required in Answer

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65
Q

What is a cross claim and does it need smj?

A

Offensive claim asserted by co-party, must arise from same transaction, occurance
NEVER compulsory.
MUST have independent basis for SMJ

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66
Q

what is permissive joinder

A

when P wants to join non-parties as Co-P or Co-d. Allowed when same transaction or occurance, and common question of law or fact. Court must have Jx over joined parties.

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67
Q

What is compulsory joinder

A

Absent parties are forced to join a case if deemed necessary.
Elements: 1) w/o party, court can’t grant complete relief
2) party has legal interest that may be impared
3) party has a interest that creates risk of multiple or inconsistent rulings.

Can be joined if there is PJ over the party and it won’t destroy diversity

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68
Q

What is interpleader and when is it used

A

When multiple people are claiming right to a property. The property holder is the stakeholder, other parties who want the property- claimants. Must be diversity b/ stakeholder and claimants, amt must be > 75k.

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69
Q

at what point do parties have to disclose what experts will be used at trial and produce a report with their opinions

A

at least 90 days before trial

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70
Q

When do parties have to give detailed info about evidence to be used at trial

A

At least 30 days before trial

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71
Q

what is deadline to respond to interrogatories (written questions) RFAs, RFPs?

A

30 days after they are served

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72
Q

what is an interrogatory

A

written questions by one party to opposing party

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73
Q

what are depositions

A

Oral proceedings where an atty may examine any person under oath. non parties require a subpoena

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74
Q

What is the time limit for a a deposition

A

1 day for 7 hours

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75
Q

How do you meet SMJ for a class action

A

Either under Federal question or diversity jx. For diversity- class reps must be diverse from all opposing parties and class reps claims must exceed 75k

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76
Q

What is unique about a class settlement

A

Court must approve any settlement for a class action

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77
Q

When is a motion for summary judgment filed?

A

No later than 30 days after close of discovery.
BEFORE TRIAL STARTS

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78
Q

What must the moving party show in a judgment for summary motion

A

there is no genuine dispute of material fact based on pleadings and evidence submitted
No reasonable person could find for the non moving party

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79
Q

In the motion for summary judgment how does the court look at the evidence

A

In the light most favorable to the non moving party

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80
Q

When can you ask for a Judgment as a matter of Law

A

After the p’s case or after both party’s present (close of all evidence)
I.e. DURING TRIAL

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81
Q

What is the timing to file a motion for a new trial

A

within 28 days of entry of judgment

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82
Q

what are grounds for new trial

A

-prejudicial error (wrong jury instruction)
-misconduct by juror, atty, party
-judgment against weight of evidence
-newly discovered evidence
excessive or inadequate damages

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83
Q

What is remittur

A

when the jury awards an amount so high it shocks the conscience, the court can order a new trial or offer P a choice of taking a lesser amt set by the court

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84
Q

min number of jurors

A

6, max is 12

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85
Q

when must a demand for jury trial be made

A

within 14 days of service of last pleading raising triable issue

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86
Q

What amendment provides right to jury trial

A

7th

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87
Q

if D fails to respond with 21 days of being served what can P do

A

File motion for default judgment against D
Claim must be for money damages and D can not be a minor or incompetent

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88
Q

another name for issue preclusion

A

collateral estoppel

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89
Q

another name for claim preclusion

A

Res judicata

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90
Q

Before a case is over, what type of things can be appealed? (interlocutory appeals)

A
  • injunction orders
    = orders granting or denying class certifications
  • orders appointing receivers
  • orders affecting property
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91
Q

standard of review for questions of law on appeal

A

De novo

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92
Q

standard of review for question of facts on appeal

A

Clearly erroneous

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93
Q

standard of review for discretionary matters (evidentiary rulings) on appeal

A

Abuse of discrtion

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94
Q

What is the final judgment rule

A

appeal may only be done after final judgment on the merits

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95
Q

when must you file notice of appeal

A

30 days after final judgment

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96
Q

Can interrogatories be served on non - parties like witnesses who will be testifying?

A

No. Must use deposition

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97
Q

For a preliminary injunction, what must be unavailable

A

Money damages

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98
Q

For claims arising under Federal QUESTION- what law do you apply for substantive questions

A

Federal common law

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99
Q

How long do you have to file a renewed judgment as a matter of law

A

28 days after entry of judgment

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100
Q

if jury polling reveals the verdict is not unanimous, what can the judge do

A

Either direct more deliberations or order a new trial

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101
Q

Where can a non-resident/foreign citizen be sued

A

In any judicial district

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102
Q

What does the 100 mile bulge rule do

A

Allow fed courts to gain personal jurisdiction over a party added through imp leader (3rd party or required joinder- as long as they can be served with process within 100 miles of Federal Court

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103
Q

If you are doing depositions BEFORE the initial planing conference or you have more than 10 depositions, what do you need to do

A

Get leave of the court or get the party’s stipulation

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104
Q

If you want to depose someone in prison, what do you need to do

A

Get leave of court

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105
Q

If a court orders a new trial, is that order appealable?

A

no

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106
Q

What does the Class Action Fairness Act require for Class action suits?

A
  • at least 100 plaintiffs
  • at least 5 Million in damages
    -minimal diversity- at least 1 P class member is diverse from at least one D
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107
Q

If you amend a pleading, does that extend the response time?

A

Yes, you will get 14 days after the service of the amended pleading BUT the court can shorten or extend that time

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108
Q

To get objection to jury instruction on record, when should you object

A

To the judge once but not again after the judge charges the jury

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109
Q

When must a motion for relief from judgment be filed

A

within a year from date of judgment

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110
Q

What is the only way to get info from a non party/ witness

A

DEPOSITIONS

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111
Q

What is the duty regarding electronic evidence

A

there is a duty to preserve electronic evidence when litigation is reasonably anticipated. If a party has a regular policy in place that destroys electronic evidence, they must affirmatively act to stop/prevent the destruction of electronic evidence even if the destruction would occur in the normal course of business

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112
Q

Timw limit to remove diversity case to fed ct

A

1 yr

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4
5
Perfectly
113
Q

If a class is challenging certification of the class in appellate ct, what happens to the proceedings in district ct

A

They are NOT automatically stayed pending appeal- they are only stayed if the district court or court of appeals orders it

114
Q

Can a deposition be used to impeach and for substantive evidence or just impeachment?

A

Depositions can be used to impeach and for substantive evidence

115
Q

If a party wants to sanction another party, what must they do

A

Serve a motion on the alleged violator but then refrain from filing it for 21 days to allow any violation to be corrected- safe harbor rule

116
Q

If a court is imposing money sanctions on its own initiative, what must the court do

A

Issue a show- cause order to the alleged violator so they know what they did wrong

117
Q

Can a judge randomly excuse a juror once the trial has begun?

A

Only for good cause like illness, family emergency, juror misconduct

118
Q

For issue preclusion, if one of the parties is different in the second suit, is that ok

A

Yes- then it is NON-mutual issue preclusion.

If it is asserted by party that was in first lawsuit, then it is MUTUAL issue preclusion

119
Q

For issue preclusion, if the first trial was decided by summary judgement is that ok?

A

Yes, b/c summary judgement is valid final judgment on merits

120
Q

How much time do you have after a final judgment to file an appeal

A

30 days

121
Q

For a court in diversity, where there is NO fed statute on point and state law is outcome determinative, what do you do

A

Apply state law

122
Q

What is the time limit to appeal an order about certifying a class

A

within 14 days after order is entered

123
Q

Does the appellate court have to hear an appeal about a certifying class

A

NO- discretionary

124
Q

For serving process, what state’s rules do you follow- where the court sits or where service is made

A

EITHER

125
Q

If success on the merits is unclear, should the court issue a preliminary injunction

A

NO

126
Q

Can you appeal in the middle of a case to dismiss a 3rd Party defendant

A

NO b/c of final judgment rule. No appeals in middle of cases unless granting/denying injunctions, class order certification, collateral order

127
Q

Is the plaintiff required to respond to a defendant’s pleading?

A

NO- only if the court orders a reply

128
Q

What is a preemptory challenge

A

A lawyer can remove a juror for any reason, don’t need to state the reason

129
Q

what is a voluntary dismissal in Fed ct

A

Without prejudice

130
Q

What is an involuntary dismissal in fed ct

A

with prejudice- ie. P is unable to sue D on same claim again in future

131
Q

If the plaintiff fails to show up or fails to prosecute the case, what happens

A

dismissal with prejudice- p can’t sue d on same claim in future

132
Q

Can JMOL be made to an affirmative defense

A

YEs, but must be made before case is submitted to jury

133
Q

Can lack of PJ be in an amended answer

A

YES

134
Q

where is venue proper

A

Venue is proper in a judicial district in which any defendant resides or in a judicial district in which a substantial part of the events or omissions on which the claim is based occurred

135
Q

if there is a forum selection clause, what weight is it given?

A

controlling weight even if the clause is unenforceable under applicable state law. So if transfer is sought on basis of forum selection clause, it will be accorded respect

136
Q

If venue is transferred when original venue was proper, what laws get applied

A

Laws of transferor state UNLESS venue transfer is based on valid transfer of forum clause- then those state’s rules apply

137
Q

for issue preclusion to apply what is essential

A

The party against whom the issue is to be precluded MUST HAVE BEEN A PARTY in the original case

I.e p suing bus driver in first case then turning around and suing bus company in second case. if they already determined the bus co wasn’t negligent can’t then sue the bus co for the same thing b/c of issue preclusion.

138
Q

Interrogatories can’t be served before ____

A

Initial pre conference and discussion of discovery data

139
Q

What is tag jurisdiction for PJ

A

When you serve someone when they happen to have a physical presences in the state

140
Q

For fed ct in diversity, if there is a conflict of laws and the issue is substantive, what law do you apply

A

State law applies if it is outcome determinative

141
Q

When can a district court correct a clerical mistake or mistake from oversight on its own initiative

A

BEFORE appeal is docketted

142
Q

If an appeal is already docketed, can a district court correct a clerical mistake on its own

A

No, they then need leave/permission of appellate ct

143
Q

When must a request for jury instruction be filed

A

Before close of evidence unless an earlier deadline is set by the court

144
Q

When can you file a jury instruction AFTER close of evidence

A

If the request relates to an issue the party could not have reasonably anticipated earlier

145
Q

When does Tag jurisdiction not exist

A

When D is present in the forum state just to attend an unrelated judicial proceeding or he is fradulently/forcefully brought to the forum state to be served

146
Q

For a “common question” class act, do people have to opt out or opt in

A

Opt out if they don’t want to be included.

If they fail to opt out, they can’t pursue their own lawsuit

147
Q

If you are suing a govt agency where do you have to deliver the summons and complaint to

A

AG, a clerk at AG office by certified mail and to the actual govt Dept being sued

148
Q

All attorney- expert witness communications are privileged UNLESS

A

1) they relate to expert’s pay
2) they identify facts/ data the expert relied on in forming her opinions

149
Q

If a party in diversity jx in Fed ct seeks only an equitable remedy, how is the amt of controversy calculated

A

By cost to D if forced to comply with equitable remedy (lost sales)
Or gain to P if equitable remedy is granted (expected profits)

150
Q

Explain difference between motion for summary judgment and motion for judgment on the pleadings

A

Judgment on the pleadings allows the court to ONLY look at info in the pleadings whereas Motion for Summary Judgment allows ct to consider discovery material as well

151
Q

When getting documents in response to interrogatories, can a party copy the records?

A

Yes, examine and copy

152
Q

is “individualized” money damages for each class member an appropriate remedy in a class action

A

NO

153
Q

IF d fails to answer a complaint, what is the next step

A

P must request Ct clerk to enter default. THEN default judgment can be sought

154
Q

is it a taking if a jet is forced to land on private property in an emergency

A

NO

155
Q

Does the contracts clause apply to Federal action or federal agencies impairing the obligations of contracts

A

NO- just state action

156
Q

If a p sues a fed officer in his individual capacity, do general venue rules apply?

What about if Fed officer is sued in official capacity

A

If sued in imdivid capacity–> general venue rules

If sued in official capacity–> venue is proper only where a D resides or where events happened

157
Q

if a federal court lacked SMJ but still decided the case and it was never appealed… do other states need to give the decision full faith and credit

A

Yes, b/c you must file an appeal to challenge a final judgment

158
Q

For issue preclusion, if you have a different party in the second action, does issue preclusion apply

A

The party who is being PRECLUDED/STOPPED must have been party to the first lawsuit

159
Q

Can a fed Ct transfer jurisdiction to a foreign court?

A

No, they must dismiss on basis of forum non conveninens

160
Q

When is disclosure of computation of damages due

A

within 14 days after discovery conference

161
Q

Can defendants for a COMPULSORY counterclaim reside in the same state as other defendants?

A

Yes. It is ok for diversity if it is a compulsory counter claim

162
Q

For civil cases, when is there a right to jury trial?

A

As long as claim is for money damages and NOT equitable relief

163
Q

Is there a right to jury trial for equitable/injunctive claims

A

NO

164
Q

If identity and address are known or obtainable can you do service via publication (newspaper)?

A

NO

165
Q

What is the two dismissal rule

A

If P’s action has been voluntarily dismissed once in fed or state ct and then P brought same claim in Fed court and filed notice of dismissal, then second dismissal is WITH PREJUDICE

166
Q

to warrant a new trial, attorney’s misconduct must be what?

A

Prejudicial - i.e possibly changed the verdict

167
Q

3 types of jury verdicts

A
  1. special verdict- written finding by jury on EACH issue of fact
  2. general verdict- who won and $
  3. general with special interrogatiories
168
Q

3 types of mandatory disclosures

A
  1. initial disclosures
  2. disclosure of expert testimony 90 days before trial
  3. pretrial disclosure 30 days before
169
Q

what is timing for notice of removal

A

30 days once it is ascertained that the case is removable

170
Q

if a case involves legal AND equitable claims, what is order they must go and how

A

must first deal with legal claims at jury trial then non-jury trial on equitable claims

171
Q

what is a dead man’s statute

A

Applies to civil cases only- and not a federal rule- party with financial interest in outcome of case is not permitted to testify about communication or transaction with person whose estate is at question

172
Q

if question asks about personal jurisdiction, how to address

A

Talk about minimum contacts, just putting goods into stream of commerce does not create minimum contacts. Do not talk about domicile.

173
Q

if you are answering a supplemental jurisdiction question, how to answer

A

A federal court uses supplemental jurisdiction to hear a claim when it stems from the common nucleus of operative facts when the court was originally using SMJ.

174
Q

does driving a car in x state and having an accident in that state give personal jurisdiction to the state

A

Yes- through the state’s long arm statute. B/c making use of the state’s roads

175
Q

In terms of state laws about relation back, what do you apply in Fed court

A

Always apply FRCP that allows for relation back. State laws that prohibit relation back do not apply in Fed Ct

176
Q

Are state laws about excessive damages substantive

A

Yes- so in Fed ct on diversity, must apply

177
Q

Can monetary sanctions be imposed on the actual plaintiff and his attorney or just they attorney

A

Just the attorney

178
Q

Time to respond to counter claim

A

21 days

179
Q

Can ADDITUR be used in any federal court?

A

NO, even in court sitting in diversity

180
Q

Does a court have to have a HEARING to approve any class action settlement

A

Yes

181
Q

if a case is dismissed with prejudice, can you have a new lawsuit with ANY claim that is from the same action/transaction

A

No- b/c it would have been a compulsory counter claim and needed to be brought with initial lawsuit

182
Q

If potential tortfeasors are facing joint and several liability are they required parties?

A

NO b/c P could get complete relief from any one of them

183
Q

Can a final judgement from a bench trial just say “verdict in favor of xyzzy”

A

NO- it must have specific findings or conclusions in support of judgment

184
Q

A determination to transfer venue is based on what?

A

if it is in the interest of justice and for convenience of the parties and witnesses…NOT if the action shares questions of facts with similar actions in that area/state

185
Q

requirements for subpoena to be valid/enforceable

A
  1. signed by court clerk or atty licensed to practice in ct where action is pending
  2. properly served with personal delivery by non party
186
Q

in a court sitting in diversity, what is the condition to check for removal to fed court

A

You can’t remove if a defendant is a citizen of the state where the case was originally filed

187
Q

When does a legislator have standing

A

only if the action causes the legislator person and concrete harm, not institutional/abstract harm shared equally by all legislators

188
Q

if you make a motion to remove to fed court then does that delay the timeline to ask for a jury trial

A

Yes, 14 days after answer of motion filing notice for removal

189
Q

in a bench trial, what is the equivalent of a JMOL

A

a motion on partial findings. Courts can make this after the non-movant has been fully heard on the issue. If a claim or defense is resolved, court can enter judgment but must provide factual findings and legal conclusions on record either orally or in writing

190
Q

If you bring a claim against a manufacturer for equitable relief can you later sue the manufacturer for legal relief

A

NO- it would be considered the same claim so needs to be brought in initial suit

191
Q

Timing to demand jury trial

A

P has 14 days after the ANSWER to a complaint to demand a jury trial. If you never answered the original complaint and now it is amended, then you get 14 days after any answer

192
Q

What is the reply letter doctrine

A

A letter can be authenticated upon showing it was in reply to an early letter sent by author

193
Q

If a public employee is speaking “outside the scope of their job duties” then …

A

They are speaking as a private citizen and not in their official capacity

194
Q

When is a final pretrial order modifiable

A

Only to prevent manifest injustice

195
Q

How is a non citizen treated for venue

A

if they are a permanent resident, wherever they reside

196
Q

For relief from judgment based on newly discovered evidence, it is only allowed when

A

The evidence could NOT have been discovered in time for trial

197
Q

Can the court weigh the evidence to determine JMOL

A

NO- JMOL is only granted if the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for that party

198
Q

if case is dismissed with prejudice in state court, can you bring it again in federal

A

NO

199
Q

Who does the bulge provision apply to

A

only to a 3rd Party defendant or required party joined. NOT to the original defendant

200
Q

What is a curative admission

A

When a court erroneously allows evidence then the court may allow additional inadmissible evidence to rebut the admitted evidence

201
Q

what is purposeful availment

A

To warrant PJ a defendant’s contacts with the forum state must be purposeful and substantial such that he should reasonably force being taken to court there.

202
Q

Do you need to worry about home state defendant rule when in fed court for fed question

A

NO only in diversity

203
Q

When must you object to jury instructions

A

BEFORe the judge instructs the jury NOT right when the judge gives the instruction

204
Q

What is transfer of venue based on

A

if it is in the interest of justice and for convenience of parties and witnessed NOT if the action shares something with other actions in that state

205
Q

Relation back (after the statute of limitation has expired) is only allowed when

A

If you have a new claim from the same transaction OR
If you are changing parties due to mistake

206
Q

if a party fails to object to jury instructions at trial but challenges them after, it can be reviewed for plain error- what is the standard

A

if the appellant shows an obvious error affected defendant’s substantive rights

207
Q

A challenge to personal jurisdiction is waived if not made in the original answer OR

A

the amended answer within 21 days of original answer

208
Q

standard for new trial vs std for JMOL

A

new trial- if verdict is against weight of evidence

JMOL- if there is substantial evidence in the record to support the verdict, resolving all disputed issues in –’s favor

sufficient evidence for the jury to have reasonably found for the party= JMOL

209
Q

to have scheduling order modified, you need

A

Good cause

210
Q

if 3rd party wants to join lawsuit b/c they have same issue, should they file motion to permissively intervene or motion to intervene as matter of right

A

Permissive. motion to intervene as matter of right is only if non party’s interest is not represented by existing party and deciding case w/o non party would impair their interest.

Court MAY permit 3rd p intervention if the third party has same issue/common question of law or fact with main action

211
Q

how does a court determine which issue preclusion rule - state vs fed- applies to second action?

A

Court looks at the court that entered the first judgment so if fed court entered first judgment, then fed preclusion law applies to 2nd judgement. If state A’s court entered first judgment , then their law applies to second.

212
Q

Mutual vs non mutual issue preclusion

A

mutual- issue in 2nd action asserted by parties to first, against parties in first.

Non-mutual- issue in 2nd action asserted by non-parties to first against parties in first

213
Q

motion for remand must be filed — days after removal

A

30

214
Q

If the defendant is trying to remove to federal court, assume they are trying to remove to which federal court

A

The one sitting in the same state as where the state action is taken… i.e look to see if it is the home state of the defendant.

215
Q

Can the judge give the jury instructions BEFORE closing arguments

A

Yes, the judge may give instructions BEFORE closing arguments- can give jury instructions any time BEFORE the jury is discharged

216
Q

when is a demand for jury trial TIMELY

A

no later than 14 days after last pleading, and must be BEFORE pretrial conference

217
Q

When notice of removal is filled, is the case automatically transferred to fed ct or does the fed court have discretion to take the case

A

AUTOMATICALLY TRANSFERRED

218
Q

what is the standard for granting a summary judgment motion- does the court HAVE to grant it or May the court grant it

A

THE COURT MUST grant the summary judgment if there is no genuine dispute to any material fact

219
Q

As long as a judge acted with jurisdiction, does it matter if they acted with malice?

A

No, a judge has ABSOLUTE immunity for all civil acts

220
Q

when are sanctions appropriate

A

frivolous arguments, clearly lack evidentiary support
remember safe harbor rule
motion for sanction must be made separately from any other motion. First served on opposing party then safe harbor of 21 days to correct before serving on court

221
Q

if A sues B and B wins and then A sues B’s employer for the same thing A sued B for… is that ???

A

Claim preclusion!!! B and B’s employer are identical

222
Q

Intervening as a matter of right (i.e a party wanting to join the lawsuit so their rights are represented)- elements

A

the party can intervene as a matter of right if:
1) they have an interest related to the transaction
2) disposition without them would impair their ability to protect their interests
3) their interests are not adequately represented by the existing parties

223
Q

explain a TRO

A

temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction.

2 part test for TRO:
1) immediate and irreparable harm will result prior to hearing adverse party’s arguments
2) efforts made to give notice or reason why notice can’t be given.

224
Q

Elements required for preliminary injunction

A

preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue.

A party seeking a preliminary injunction must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to suffer irreparable harm in the absence of relief; (3) the balance of equities is in his favor; and (4) the injunction is in the best interest of the public. Additionally, the party seeking the preliminary injunction must provide security (typically in the form of a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully enjoined.

225
Q

Do you ever need to worry about the court having personal jurisdiction over the plaintiff?

A

NO- because the plaintiff consents to personal jurisdiction when they filed the complaint in the forum state

ONLY address if the court has PJ over the DEFENDANT!!!

226
Q

if you see joint and several liability, can you have compulsive joinder?

A

NO! B/c any of the parties could be liable for all the damage

227
Q

if expert witness disclosure is not timely, can it still be allowed

A

Yes, if it doesn’t harm the other side- harmless

228
Q

Can a party dismiss an action without court approval or other party approval

A

Yes, before summary judgment motion or service of an answer

229
Q

regardless of size of jury in fed court, the verdict must be….

A

unanimous

230
Q

if damages award is very high, is court required to give party option of remitter or can they just order new trial

A

They can just order new trial, they don’t have to give remitter option

231
Q

for issue preclusion, which is more important to focus on - whether the claims came from the same transaction or if different federal statutes were violated

A

Whether the claims came from the same transaction- b/c even if two different fed statutes - as long as it was from the same transaction (i.e a person not selling their house to another) then it is issue preclusion

232
Q

if you are deposing a corporation, what must the written notice contain

A

must describe the matters for examination in the deposition with reasonable particularity

233
Q

in a judge’s motion to dismiss for 12b6, are the judge’s specific findings and conclusions necessary or can he/she just say “dismissed for 12b6”

A

no specific findings or conclusions are necessary for dismissal under 12b6

234
Q

During pretrial conferences, a judge can establish a time limit for each party’s presentation of evidence, limit each party’s use of expert testimony and rule on the admissibility of evidence but a judge can not…

A

decide which party has the burden of proof

235
Q

rulings about whether certain testimony should have been excluded at trial- what standard

A

Abuse of discretion

236
Q

time limit to file a relief from judgment order

A

“within a reasonable time” - ie over a year is fine if it is based on earlier judgment that has be vacated

237
Q

when can voluntary dismissal be done by a plaintiff

A

Prior to service of an answer or a summary judgement motion

238
Q

can a defendant have alternative and inconsistent allegations- such as I didn’t rape her but if the DNA comes back saying I was there, it was consensual

A

YEs- alternative and inconsistent allegations are allowed

239
Q

ex parte TRO needs what

A

written explanation to the court as to why you couldn’t/didnt give notice to other side

240
Q

when the US is a defendant in a civil suit, process must go to

A

US attorney general- by registered or certified mail, plus the attorney for that district

241
Q

if a third party is intervening in a case based on diversity jx, and they are diverse but can’t meet the amt in controversy amt, can the court let them intervene

A

NO.

242
Q

for FEDERAL STATUTORY interpleader…

A

Amt in controversy >$500, nationwide PJ, minimum diversity- any two adverse claimants must be citizens of different states. DOUBLE CK that it is FEDERAL statutory interpleader

243
Q

in what types of mistrial can a defendant be retried

A

Hung jury- manifest necessity

244
Q

when can a scheduling order for trial be modified

A

If a party shows good cause- but needing more time to prepare, being too busy to call witnesses is NOT good cause- need to show you acted DILIGENTLY To meet the deadline AND the judge has to CONSENT to modification

ONLY TO PREVENT MANIFEST INJUSTICE

245
Q

Can you extend the deadline for filing a renewed JMOL

A

NO. Just 28 days after entry of judgement that’s it- not extendable

246
Q

if a court made a judgement when they lacked personal or subject matter jx…

A

The party can argue the judgement is VOID

247
Q

are cross claims ever mandatory

A

NO

248
Q

statutory interpleader

A
  1. Nationwide service of process
  2. only two claimants must be diverse
  3. At leases $500 at stake
249
Q

intervention as a right vs permission intervention

A

Intervention as a right- no permission needed by the court. If you have an interest in the property/transaction and it would IMPAIR your interest if you can’t intervene then court must grant you right to join the lawsuit.

Permissive intervention- just have common question of law/fact - and then court must decide whether to allow you to join in.

250
Q

if a NECESSARY party can’t be joined because it would break DIVERSITY but they are INDISPENSIBLE the court must…

A

dismiss the case

251
Q

for removal to federal court, removal is proper

A

to the fed district court where the state court resides (don’t need to consider anything else)

252
Q

For a prejudgement attachment over personal property, the court must what?

A

Have personal jurisdiction over the defendant

253
Q

Even if you are suing a federal officer PERSONALLY , who must you also serve with process?

A

the US if it is was about his official actions

254
Q

if defendant is a resident of foreign country, where is venue proper

A

Any judicial district

255
Q

for purposes of claim preclusion, is a dismissal with prejudice equivalent to a judgment on the merits

A

Yes

256
Q

if a foreign citizen is the plaintiff, does the court have to dismiss or dismiss for forum non conveniens

A

No

257
Q

Standard for jmol

A

sufficient evidence for the jury to have reasonably found for the party

258
Q

When adding up for amt in controversy, can you include costs and interest? What abt legal fees?

A

Do not include costs and interest. Can include legal fees

259
Q

If service is made at defendant’s home, who can it be given to

A

A person of suitable age

260
Q

If service is made at person’s work, who can it be give to

A

Only the defendant

261
Q

When does double jeopardy apply

A

When jury is sworn in at bench trial or when judge begins to hear evidence— NOT when u get convixtion or acquittal

262
Q

Where can a pleading filed AFTER the original complaimt be served

A

By email
By mail
Leaving at person’s office
Leavingnat Ct clerk if no LKA

263
Q

Can court drop DISPENSIBLE party to preserve fed jx

A

Yes

264
Q

You have to ask for jury trial before what is complete

A

Discovery

265
Q

You dont need to have prelim hearing for criminal defendant if

A
  • you got indictment w grand jury
    -govt filed information charging D
    -D waived hearing
266
Q

Requiremwnts for STATUTORY interpleader

A

Amount greater than $500!!

Minimal.diversity b plaintiffs- at least one pand 1 d from diff states

Personal.jx over any p anywhere in US

Venue where any claimant resides

267
Q

The 6th am right to counsel doesnt apply until when
…

A

Defendant is brought to court and advised of complaint by a judge

268
Q

If fail to knock and announce when executing search warrant is evidence excluded at trial

A

No. Can still be used

269
Q

what defines a “required party”

A

Required party must be joined if
1) without them, court can’t give complete relief to existing parties
2) the party has an interest in the matter such that determining the matter without them would impair their interest or leave existing party with risk of multiple obligations b/c of the interest

270
Q

for personal jurisdiction, start with what? And if they don’t have that, then discuss what?

A

Start with general jurisdiction- Court has jx over D for ANYTHING b/c he resides there

If NO general jx, then look at SPECIFIC jurisdiction: minimum contacts, purposeful availment (due process & long arm statute)

271
Q

default way to establish venue if can’t get it any other way

A

where any defendant is subject to personal jurisdiction

272
Q

Do cross claims need diversity, amount in controversy, federal question?

A

NO- as long as they come from common nucleus of operative fact/same transaction or occurrence, then they can come in under supplemental jurisdiction

273
Q

Where is a corporation’s primary place of business

A

= nerve center, headquarters. so corporation is domiciled where they are INCORPORATED AND WHERE the HEADQUARTERS IS

274
Q

if the plaintiff want to voluntarily dismiss the case AFTER D has filed and answer or motion for summary judgement, is that possible?

A

Yes, but need court order

275
Q

If Plaintiff wants to voluntarily dismiss and Defendant has pleaded a counter claim, can the court dismiss?

A

Only if the counter claim can remain in court as an independent claim

276
Q

what is a third party claim

A

When a defendant claims a third party is liable to defendant for some or all of harm

277
Q

Can a third party be NON-diverse

A

YES

278
Q

in initial disclosures (without a discovery request) what must be disclosed

A
  • names/addresses of anyone the party may use to support defense
  • all documents, electronic info, tangible info the party may use to support claims
    -any relevant insurance agreement
    -computation of damages and material computation was based on
279
Q

how much notice is required before a default judgement hearing

A

7 days notice

280
Q

what is tag jurisdiction

A

when you serve the defendant with process when D happens to be in the forum state briefly for a purpose unrelated to the lawsuit

281
Q
A

Bar Exam (19 decks)

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