Civ Pro Flashcards
Can you waive Subject matter jurisdiction
NO
When can a lack of SMJ be raised
Any time by any party. Including for the first time on appeal
What are the two ways a Fed ct can have subject matter jurisdiction
- Federal Question- a claim arising under Federal Law
- diversity jurisdiction with amount OVER 75k
For Federal Question jurisdiction, the federal law must be in the ____’s complaint?
Plaintiff’s
When must the diversity exist?
When the complaint is FILED
or a decedent’s estate, what do you use for residency?
Where the decedent lived
For class action suits, where is the residency?
Where the named class reps are residents
for partnershipts
= a citizen of every state of which its members are citizens
Can you aggregate claims to get past the $75,000?
Yes if there is one P and one D
IF there are two plaintiffs, can they add up their claims to get past the $75,000?
No, each P must seek more than 75K
If there is one P and 2 D’s can the P aggregate claims against diff defendants to get past 75K
NO
if d’s are jointly liable, can the P then add up claims to get over $75k
YES
Which party can remove a case from state to Fed Ct
Defendants only
When can you remove a case to fed ct
Only if the fed court could have heard the case in the first place- I.e had SMJ
if the P’s claim is based on state law, can you remove the case to fed ct
Yes
For removal to Fed Court based only on Diversity Jurisdiction (not Fed question) what is the key limit for removal
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.
When can a Fed court hear additional claims over which the court would not independently have juruisdiction
If the claims constitute the same case or controversy- arising out of the same nucleus of operative facts
Is supplemental jurisdiction required or discretionary
Discretionary
Can you have supplemental jurisdiction for claims made by plaintiffs?
NO
Does a counter claim in a diversity action have to meet the $75,001 minimum?
NO- if it arises out of the same common nucleus of operative fact- ie compulsory counterclaim
what is a permissive counterclaim and when can it be heard?
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
what is the requirement for a crossclaim
must arise out of same transaction or occurance
which party can bring cross claims
Defendants
Does supplemental jurisdiction ever allow you to join a non diverse d or non diverse P
NO
What are the two ways a court can have personal jurisdiction
- General-domicile
- Specific- long arm statute, due process clause
Can Personal jurisdiction be waived
Yes
4 requirements for a class action
- Numerosity- too many people to add all theu joinder
2.commonality- all share common question of law or fact - Typicality- claims of class reps are typical of class
- Adequacy-class reps fairly and adeq represent interests of class
How is the due process requirement for personal jursdixtion satisfied
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
Where is venue proper
Where any of the d’s live if they all live in same state. Or where incident happened
under Erie, what law must the Fed Ct apply
State substantive law of the state in which the Fed ct is located and Federal procedural laws
Elements for a preliminary injunction
- likelihood of success on the merits
- irreparable harm without relief
- Balance of equities in P’s favor
- in the best interest of public
What must be in a complaint
- short and plain statement of complaint
- Grounds for Subject matter jurisdiction
- Demand for relief sought
When can a party amend a pleading
Once within 21 days
Then after that, you need to ask permission of court
When must you object to improper venue
At first pre answer motion to dismiss or in first response pleading or it is waived
4 bases for in personum jurisdiction
- voluntary presence
- consent
-domicile
Long arm statute
attachment
What is a compulsory counter claim
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
How many interrogatories are allowed
25
What is the time to respond to an interrogatory?
30 days
How long does the Defendant have to respond to the complaint
within 21 days of service of process
when must the summons be served on D
within 90 days of filing the complaint
number of preemptory challenges for each side
3
Number of challenges for cause per side
Unlimited
if there are multiple defendants, do they all have to consent to removal
Yes
What defenses are waived unless raised in pre-answer motion or in the answer
Lack of personal jurisdiction, lack of venue, insufficient process, insufficient service of process
what has the right to remove from state to federal court
Defendants
what are grounds for a new trial
- 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
When can a motion be made for judgement as a matter of law?
after the P’s case or after both sides have presented the evidence (essentially anytime before the case goes to the jury)
What does it mean if a judgment as a matter of law is granted
There is insufficient evidence for a jury to reasonably find for the other party
If a party files a counter claim, can they later object to personal jurisdiction
NO- any filing would be implied consent to PJ
what are the three requirements for claim preclusion
- final judgment on the merits
- same parties in exact same roles
- same claim from same transaction
Does failure to provide proof of service affect the validity of service
No
Can an oral deposition be used for a party to the lawsuit, a non- party witness, both or neither?
Both
if a class action is based on Federal question, do you need to have one member with amt > $75,000
No- if on federal question, amt doesn’t matter
what is necessary for supplemental jurisdiction
each additional claim must share a common nucleus of operative facts with an existing claim- i.e arise from same transaction or occurance
If Defendant agrees to waive service, what happens to time to answer complaint
Goes from 21 days to 60 days
is a TRO immediately appealable
NO
When does a TRO expire
14 days from issuance but can be extended for good cause
Does a TRO require notice
NO. But you must be given notice of the TRO before you can be held in contempt for violating it
What are claims/issues that must be pleaded with particularity
Fraud
Special damages
Mistake
when must an answer to a complaint be filed
within 21 days of service of process
what must be in answer to complaint?
Respond to allegations of complaint- admit, deny, lack insufficient info to admit/deny
Raise affirmative defenses
If you fail to deny an allegation of a complaint what is that considered
An admission
What is a compulsory counter claim
From the same transaction or occurrence, claim by D against P.
MUST be in the answer or it is waived
What is a permissive counterclaim
Claim by D against P that does not arise from same transaction or occurance as any of P’s claims
NOT required in Answer
What is a cross claim and does it need smj?
Offensive claim asserted by co-party, must arise from same transaction, occurance
NEVER compulsory.
MUST have independent basis for SMJ
what is permissive joinder
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.
What is compulsory joinder
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
What is interpleader and when is it used
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.
at what point do parties have to disclose what experts will be used at trial and produce a report with their opinions
at least 90 days before trial
When do parties have to give detailed info about evidence to be used at trial
At least 30 days before trial
what is deadline to respond to interrogatories (written questions) RFAs, RFPs?
30 days after they are served
what is an interrogatory
written questions by one party to opposing party
what are depositions
Oral proceedings where an atty may examine any person under oath. non parties require a subpoena
What is the time limit for a a deposition
1 day for 7 hours
How do you meet SMJ for a class action
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
What is unique about a class settlement
Court must approve any settlement for a class action
When is a motion for summary judgment filed?
No later than 30 days after close of discovery.
BEFORE TRIAL STARTS
What must the moving party show in a judgment for summary motion
there is no genuine dispute of material fact based on pleadings and evidence submitted
No reasonable person could find for the non moving party
In the motion for summary judgment how does the court look at the evidence
In the light most favorable to the non moving party
When can you ask for a Judgment as a matter of Law
After the p’s case or after both party’s present (close of all evidence)
I.e. DURING TRIAL
What is the timing to file a motion for a new trial
within 28 days of entry of judgment
what are grounds for new trial
-prejudicial error (wrong jury instruction)
-misconduct by juror, atty, party
-judgment against weight of evidence
-newly discovered evidence
excessive or inadequate damages
What is remittur
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
min number of jurors
6, max is 12
when must a demand for jury trial be made
within 14 days of service of last pleading raising triable issue
What amendment provides right to jury trial
7th
if D fails to respond with 21 days of being served what can P do
File motion for default judgment against D
Claim must be for money damages and D can not be a minor or incompetent
another name for issue preclusion
collateral estoppel
another name for claim preclusion
Res judicata
Before a case is over, what type of things can be appealed? (interlocutory appeals)
- injunction orders
= orders granting or denying class certifications - orders appointing receivers
- orders affecting property
standard of review for questions of law on appeal
De novo
standard of review for question of facts on appeal
Clearly erroneous
standard of review for discretionary matters (evidentiary rulings) on appeal
Abuse of discrtion
What is the final judgment rule
appeal may only be done after final judgment on the merits
when must you file notice of appeal
30 days after final judgment
Can interrogatories be served on non - parties like witnesses who will be testifying?
No. Must use deposition
For a preliminary injunction, what must be unavailable
Money damages
For claims arising under Federal QUESTION- what law do you apply for substantive questions
Federal common law
How long do you have to file a renewed judgment as a matter of law
28 days after entry of judgment
if jury polling reveals the verdict is not unanimous, what can the judge do
Either direct more deliberations or order a new trial
Where can a non-resident/foreign citizen be sued
In any judicial district
What does the 100 mile bulge rule do
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
If you are doing depositions BEFORE the initial planing conference or you have more than 10 depositions, what do you need to do
Get leave of the court or get the party’s stipulation
If you want to depose someone in prison, what do you need to do
Get leave of court
If a court orders a new trial, is that order appealable?
no
What does the Class Action Fairness Act require for Class action suits?
- 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
If you amend a pleading, does that extend the response time?
Yes, you will get 14 days after the service of the amended pleading BUT the court can shorten or extend that time
To get objection to jury instruction on record, when should you object
To the judge once but not again after the judge charges the jury
When must a motion for relief from judgment be filed
within a year from date of judgment
What is the only way to get info from a non party/ witness
DEPOSITIONS
What is the duty regarding electronic evidence
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
Timw limit to remove diversity case to fed ct
1 yr
If a class is challenging certification of the class in appellate ct, what happens to the proceedings in district ct
They are NOT automatically stayed pending appeal- they are only stayed if the district court or court of appeals orders it
Can a deposition be used to impeach and for substantive evidence or just impeachment?
Depositions can be used to impeach and for substantive evidence
If a party wants to sanction another party, what must they do
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
If a court is imposing money sanctions on its own initiative, what must the court do
Issue a show- cause order to the alleged violator so they know what they did wrong
Can a judge randomly excuse a juror once the trial has begun?
Only for good cause like illness, family emergency, juror misconduct
For issue preclusion, if one of the parties is different in the second suit, is that ok
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
For issue preclusion, if the first trial was decided by summary judgement is that ok?
Yes, b/c summary judgement is valid final judgment on merits
How much time do you have after a final judgment to file an appeal
30 days
For a court in diversity, where there is NO fed statute on point and state law is outcome determinative, what do you do
Apply state law
What is the time limit to appeal an order about certifying a class
within 14 days after order is entered
Does the appellate court have to hear an appeal about a certifying class
NO- discretionary
For serving process, what state’s rules do you follow- where the court sits or where service is made
EITHER
If success on the merits is unclear, should the court issue a preliminary injunction
NO
Can you appeal in the middle of a case to dismiss a 3rd Party defendant
NO b/c of final judgment rule. No appeals in middle of cases unless granting/denying injunctions, class order certification, collateral order
Is the plaintiff required to respond to a defendant’s pleading?
NO- only if the court orders a reply
What is a preemptory challenge
A lawyer can remove a juror for any reason, don’t need to state the reason
what is a voluntary dismissal in Fed ct
Without prejudice
What is an involuntary dismissal in fed ct
with prejudice- ie. P is unable to sue D on same claim again in future
If the plaintiff fails to show up or fails to prosecute the case, what happens
dismissal with prejudice- p can’t sue d on same claim in future
Can JMOL be made to an affirmative defense
YEs, but must be made before case is submitted to jury
Can lack of PJ be in an amended answer
YES
where is venue proper
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
if there is a forum selection clause, what weight is it given?
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
If venue is transferred when original venue was proper, what laws get applied
Laws of transferor state UNLESS venue transfer is based on valid transfer of forum clause- then those state’s rules apply
for issue preclusion to apply what is essential
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.
Interrogatories can’t be served before ____
Initial pre conference and discussion of discovery data
What is tag jurisdiction for PJ
When you serve someone when they happen to have a physical presences in the state
For fed ct in diversity, if there is a conflict of laws and the issue is substantive, what law do you apply
State law applies if it is outcome determinative
When can a district court correct a clerical mistake or mistake from oversight on its own initiative
BEFORE appeal is docketted
If an appeal is already docketed, can a district court correct a clerical mistake on its own
No, they then need leave/permission of appellate ct
When must a request for jury instruction be filed
Before close of evidence unless an earlier deadline is set by the court
When can you file a jury instruction AFTER close of evidence
If the request relates to an issue the party could not have reasonably anticipated earlier
When does Tag jurisdiction not exist
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
For a “common question” class act, do people have to opt out or opt in
Opt out if they don’t want to be included.
If they fail to opt out, they can’t pursue their own lawsuit
If you are suing a govt agency where do you have to deliver the summons and complaint to
AG, a clerk at AG office by certified mail and to the actual govt Dept being sued
All attorney- expert witness communications are privileged UNLESS
1) they relate to expert’s pay
2) they identify facts/ data the expert relied on in forming her opinions
If a party in diversity jx in Fed ct seeks only an equitable remedy, how is the amt of controversy calculated
By cost to D if forced to comply with equitable remedy (lost sales)
Or gain to P if equitable remedy is granted (expected profits)
Explain difference between motion for summary judgment and motion for judgment on the pleadings
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
When getting documents in response to interrogatories, can a party copy the records?
Yes, examine and copy
is “individualized” money damages for each class member an appropriate remedy in a class action
NO
IF d fails to answer a complaint, what is the next step
P must request Ct clerk to enter default. THEN default judgment can be sought
is it a taking if a jet is forced to land on private property in an emergency
NO
Does the contracts clause apply to Federal action or federal agencies impairing the obligations of contracts
NO- just state action
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
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
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
Yes, b/c you must file an appeal to challenge a final judgment
For issue preclusion, if you have a different party in the second action, does issue preclusion apply
The party who is being PRECLUDED/STOPPED must have been party to the first lawsuit
Can a fed Ct transfer jurisdiction to a foreign court?
No, they must dismiss on basis of forum non conveninens
When is disclosure of computation of damages due
within 14 days after discovery conference
Can defendants for a COMPULSORY counterclaim reside in the same state as other defendants?
Yes. It is ok for diversity if it is a compulsory counter claim
For civil cases, when is there a right to jury trial?
As long as claim is for money damages and NOT equitable relief
Is there a right to jury trial for equitable/injunctive claims
NO
If identity and address are known or obtainable can you do service via publication (newspaper)?
NO
What is the two dismissal rule
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
to warrant a new trial, attorney’s misconduct must be what?
Prejudicial - i.e possibly changed the verdict
3 types of jury verdicts
- special verdict- written finding by jury on EACH issue of fact
- general verdict- who won and $
- general with special interrogatiories
3 types of mandatory disclosures
- initial disclosures
- disclosure of expert testimony 90 days before trial
- pretrial disclosure 30 days before
what is timing for notice of removal
30 days once it is ascertained that the case is removable
if a case involves legal AND equitable claims, what is order they must go and how
must first deal with legal claims at jury trial then non-jury trial on equitable claims
what is a dead man’s statute
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
if question asks about personal jurisdiction, how to address
Talk about minimum contacts, just putting goods into stream of commerce does not create minimum contacts. Do not talk about domicile.
if you are answering a supplemental jurisdiction question, how to answer
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.
does driving a car in x state and having an accident in that state give personal jurisdiction to the state
Yes- through the state’s long arm statute. B/c making use of the state’s roads
In terms of state laws about relation back, what do you apply in Fed court
Always apply FRCP that allows for relation back. State laws that prohibit relation back do not apply in Fed Ct
Are state laws about excessive damages substantive
Yes- so in Fed ct on diversity, must apply
Can monetary sanctions be imposed on the actual plaintiff and his attorney or just they attorney
Just the attorney
Time to respond to counter claim
21 days
Can ADDITUR be used in any federal court?
NO, even in court sitting in diversity
Does a court have to have a HEARING to approve any class action settlement
Yes
if a case is dismissed with prejudice, can you have a new lawsuit with ANY claim that is from the same action/transaction
No- b/c it would have been a compulsory counter claim and needed to be brought with initial lawsuit
If potential tortfeasors are facing joint and several liability are they required parties?
NO b/c P could get complete relief from any one of them
Can a final judgement from a bench trial just say “verdict in favor of xyzzy”
NO- it must have specific findings or conclusions in support of judgment
A determination to transfer venue is based on what?
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
requirements for subpoena to be valid/enforceable
- signed by court clerk or atty licensed to practice in ct where action is pending
- properly served with personal delivery by non party
in a court sitting in diversity, what is the condition to check for removal to fed court
You can’t remove if a defendant is a citizen of the state where the case was originally filed
When does a legislator have standing
only if the action causes the legislator person and concrete harm, not institutional/abstract harm shared equally by all legislators
if you make a motion to remove to fed court then does that delay the timeline to ask for a jury trial
Yes, 14 days after answer of motion filing notice for removal
in a bench trial, what is the equivalent of a JMOL
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
If you bring a claim against a manufacturer for equitable relief can you later sue the manufacturer for legal relief
NO- it would be considered the same claim so needs to be brought in initial suit
Timing to demand jury trial
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
What is the reply letter doctrine
A letter can be authenticated upon showing it was in reply to an early letter sent by author
If a public employee is speaking “outside the scope of their job duties” then …
They are speaking as a private citizen and not in their official capacity
When is a final pretrial order modifiable
Only to prevent manifest injustice
How is a non citizen treated for venue
if they are a permanent resident, wherever they reside
For relief from judgment based on newly discovered evidence, it is only allowed when
The evidence could NOT have been discovered in time for trial
Can the court weigh the evidence to determine JMOL
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
if case is dismissed with prejudice in state court, can you bring it again in federal
NO
Who does the bulge provision apply to
only to a 3rd Party defendant or required party joined. NOT to the original defendant
What is a curative admission
When a court erroneously allows evidence then the court may allow additional inadmissible evidence to rebut the admitted evidence
what is purposeful availment
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.
Do you need to worry about home state defendant rule when in fed court for fed question
NO only in diversity
When must you object to jury instructions
BEFORe the judge instructs the jury NOT right when the judge gives the instruction
What is transfer of venue based on
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
Relation back (after the statute of limitation has expired) is only allowed when
If you have a new claim from the same transaction OR
If you are changing parties due to mistake
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
if the appellant shows an obvious error affected defendant’s substantive rights
A challenge to personal jurisdiction is waived if not made in the original answer OR
the amended answer within 21 days of original answer
standard for new trial vs std for JMOL
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
to have scheduling order modified, you need
Good cause
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
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
how does a court determine which issue preclusion rule - state vs fed- applies to second action?
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.
Mutual vs non mutual issue preclusion
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
motion for remand must be filed — days after removal
30
If the defendant is trying to remove to federal court, assume they are trying to remove to which federal court
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.
Can the judge give the jury instructions BEFORE closing arguments
Yes, the judge may give instructions BEFORE closing arguments- can give jury instructions any time BEFORE the jury is discharged
when is a demand for jury trial TIMELY
no later than 14 days after last pleading, and must be BEFORE pretrial conference
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
AUTOMATICALLY TRANSFERRED
what is the standard for granting a summary judgment motion- does the court HAVE to grant it or May the court grant it
THE COURT MUST grant the summary judgment if there is no genuine dispute to any material fact
As long as a judge acted with jurisdiction, does it matter if they acted with malice?
No, a judge has ABSOLUTE immunity for all civil acts
when are sanctions appropriate
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
if A sues B and B wins and then A sues B’s employer for the same thing A sued B for… is that ???
Claim preclusion!!! B and B’s employer are identical
Intervening as a matter of right (i.e a party wanting to join the lawsuit so their rights are represented)- elements
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
explain a TRO
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.
Elements required for preliminary injunction
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.
Do you ever need to worry about the court having personal jurisdiction over the plaintiff?
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!!!
if you see joint and several liability, can you have compulsive joinder?
NO! B/c any of the parties could be liable for all the damage
if expert witness disclosure is not timely, can it still be allowed
Yes, if it doesn’t harm the other side- harmless
Can a party dismiss an action without court approval or other party approval
Yes, before summary judgment motion or service of an answer
regardless of size of jury in fed court, the verdict must be….
unanimous
if damages award is very high, is court required to give party option of remitter or can they just order new trial
They can just order new trial, they don’t have to give remitter option
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
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
if you are deposing a corporation, what must the written notice contain
must describe the matters for examination in the deposition with reasonable particularity
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”
no specific findings or conclusions are necessary for dismissal under 12b6
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…
decide which party has the burden of proof
rulings about whether certain testimony should have been excluded at trial- what standard
Abuse of discretion
time limit to file a relief from judgment order
“within a reasonable time” - ie over a year is fine if it is based on earlier judgment that has be vacated
when can voluntary dismissal be done by a plaintiff
Prior to service of an answer or a summary judgement motion
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
YEs- alternative and inconsistent allegations are allowed
ex parte TRO needs what
written explanation to the court as to why you couldn’t/didnt give notice to other side
when the US is a defendant in a civil suit, process must go to
US attorney general- by registered or certified mail, plus the attorney for that district
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
NO.
for FEDERAL STATUTORY interpleader…
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
in what types of mistrial can a defendant be retried
Hung jury- manifest necessity
when can a scheduling order for trial be modified
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
Can you extend the deadline for filing a renewed JMOL
NO. Just 28 days after entry of judgement that’s it- not extendable
if a court made a judgement when they lacked personal or subject matter jx…
The party can argue the judgement is VOID
are cross claims ever mandatory
NO
statutory interpleader
- Nationwide service of process
- only two claimants must be diverse
- At leases $500 at stake
intervention as a right vs permission intervention
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.
if a NECESSARY party can’t be joined because it would break DIVERSITY but they are INDISPENSIBLE the court must…
dismiss the case
for removal to federal court, removal is proper
to the fed district court where the state court resides (don’t need to consider anything else)
For a prejudgement attachment over personal property, the court must what?
Have personal jurisdiction over the defendant
Even if you are suing a federal officer PERSONALLY , who must you also serve with process?
the US if it is was about his official actions
if defendant is a resident of foreign country, where is venue proper
Any judicial district
for purposes of claim preclusion, is a dismissal with prejudice equivalent to a judgment on the merits
Yes
if a foreign citizen is the plaintiff, does the court have to dismiss or dismiss for forum non conveniens
No
Standard for jmol
sufficient evidence for the jury to have reasonably found for the party
When adding up for amt in controversy, can you include costs and interest? What abt legal fees?
Do not include costs and interest. Can include legal fees
If service is made at defendant’s home, who can it be given to
A person of suitable age
If service is made at person’s work, who can it be give to
Only the defendant
When does double jeopardy apply
When jury is sworn in at bench trial or when judge begins to hear evidence— NOT when u get convixtion or acquittal
Where can a pleading filed AFTER the original complaimt be served
By email
By mail
Leaving at person’s office
Leavingnat Ct clerk if no LKA
Can court drop DISPENSIBLE party to preserve fed jx
Yes
You have to ask for jury trial before what is complete
Discovery
You dont need to have prelim hearing for criminal defendant if
- you got indictment w grand jury
-govt filed information charging D
-D waived hearing
Requiremwnts for STATUTORY interpleader
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
The 6th am right to counsel doesnt apply until when
…
Defendant is brought to court and advised of complaint by a judge
If fail to knock and announce when executing search warrant is evidence excluded at trial
No. Can still be used
what defines a “required party”
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
for personal jurisdiction, start with what? And if they don’t have that, then discuss what?
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)
default way to establish venue if can’t get it any other way
where any defendant is subject to personal jurisdiction
Do cross claims need diversity, amount in controversy, federal question?
NO- as long as they come from common nucleus of operative fact/same transaction or occurrence, then they can come in under supplemental jurisdiction
Where is a corporation’s primary place of business
= nerve center, headquarters. so corporation is domiciled where they are INCORPORATED AND WHERE the HEADQUARTERS IS
if the plaintiff want to voluntarily dismiss the case AFTER D has filed and answer or motion for summary judgement, is that possible?
Yes, but need court order
If Plaintiff wants to voluntarily dismiss and Defendant has pleaded a counter claim, can the court dismiss?
Only if the counter claim can remain in court as an independent claim
what is a third party claim
When a defendant claims a third party is liable to defendant for some or all of harm
Can a third party be NON-diverse
YES
in initial disclosures (without a discovery request) what must be disclosed
- 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
how much notice is required before a default judgement hearing
7 days notice
what is tag jurisdiction
when you serve the defendant with process when D happens to be in the forum state briefly for a purpose unrelated to the lawsuit
