Civ Pro Flashcards
Unless a different time is set by court order or stipulation, within _____ days after the meeting the parties must provide names, addresses, the telephone number of individuals who have discoverable information that the disclosing party may use to support its claims or defenses (unless needed solely for impeachment)
14
During discovery, electronically stored information doesn’t need to be produced if the responding party identifies it as
not reasonably accessible because of undue burden or cost
Generally, the work product made by a party or representative of a party (like party’s attorney) is NOT discoverable if it is made _____ unless the party requesting discovery can show substantial need and undue hardship if disclosure is not ordered
in anticipation of litigation
the opinion of an expert consulted in anticipation of litigation is discoverable IF a party ____
BUT if this expert is NOT expected to testify at trial (like a consulting witness) then it is discoverable ONLY upon a showing of exceptional circumstances under which it is impractible to obtain facts or opinions by other means
intends to call the expert as a TRIAL WITNESS
Generally, a party may obtain discovery regarding any matter that is ______ and that is relevant to any party’s claim or defense, provided that the matter is not subject to a privilege or exception for trial preparation materials, also called work product
proportional to the needs of the case
In a situation where desired information may be ascertained from the business records of the party on whom the interrogatory was served, and where the burden of finding the information is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to provide ___
the serving party with reasonable opportunity to examine the records
PJ the big question is does the defendant have ________so that the exercise of personal jurisdiction is fair and reasonable?
sufficient contacts with the forum state
two step analysis for PJ:
(1) Exercise of PJ must first fall within a ___
(2) the exercise of PJ must satisfy ______
(1) state statute
(2) the Constitution (DP)
the PJ analysis is the same for state and ______
federal court
Each state has a “long arm” statute granting PJ over _____ who perform or cause certain things within the state
nonresidents
If you see a MEE question that gives you a statute, just apply it. BUT if you do not have a statute in the question, just note that ___
you need a state statute and you’re going to assume the statutory requirement has been satisfied
then move on to the constituonal analysis
Constitutional analysis we ask - does the D have such _______ so jdx does not offend ___
3 factors:
FRC
minimum contacts with the forum
traditional notions of fair play and substantial justice?
(1) contact
(2) relatedness
(3) fairness
PJ:
Contact means there must be relevant ____ b/w the defendant and the forum state
The two factors to be addressed here are
minimum contacts
(1) purposeful availment and
(2) foreseeability
purposeful availment means the D must _____ and the contact must result from this targeting of the forum
reach out to the forum
Can the D purposefully avail w/o setting foot in forum?
yes by causing an effect in the forum
PJ:
Forseeability means after finding that the D arguably availed herself of the forum, we must ask - is it foreseeable that
D could be sued in that forum?
Relatedness means that once we have concluded there is arguable a relevant contact, we move to relatedness.
We ask - does Plaintiff’s claim arise from or relate to D’s ____?
If yes, then the case involves_____. If no, the only way to proceed is if the court has “general PJ”
contacts with the forum?
Specific PJ
If the “relatedness” test is satisfied, then the case will be assessed for ___ and we jump to step C and assess whether the exercise of jdx would be fair or reasonable
specific PJ
if the “relatedness” test is NOT satisfied (meaning that P’s claim does NOT arise out of or relate to D’s contacts) then the only way to proceed is with ____
IF _____ exists, then D can be sued in the forum on a claim that arise anywhere in the world.
To have ____, the D must be _____ in the forum
Where is a human always _____? A human is _____ where she is domiciled.
general PJ
at home
Venue is considered to be waived unless a timely obejction (in a _______) is made to the improper venue
pre-pleading motion or, when no such motion is made, in the answer
Unlike jurisdiction over subject matter (cannot be waived), venue may
be waived by the parties
For venue purposes, a business entity defendant is deemed to RESIDE in
ANY judicial districtt in which the D is subejct to the court’s PJ with respect to the ACTION IN QUESTION
Can parties agree to which venue they want?
yes
Can parties agree to what SMJ they want?
NO
SMJ cannot be conferred by
agreement
SMJ is the power of the court to adjudicate the matter before it, whereas venue relates to the
proper geographic district to which to bring the action
When a transfer is based on the ground that the venue was IMPROPER – the LAW that applies in the transferee court is the law of
the transferee court
A transfer on convenience grounds means that the law of the ______ court will continue to apply
transferor
to be “at home” in a state, a defendant corporation must be ______ in the state or have its _____
incorporated
PBP
For specific jurisdiction, it must be determined whether the state has a ____authorizing jdx and whether the statute is _____
long arm statute
constitutional
PUrsuant to Rule 12(b), improper venue must be raised in a defendant’s FIRST RESPONSE - either in its timely MTD before the _____, OR in the ____, whatever is first
answer
no strict time limit
Trick #1: The plaintiff can’t fucking remove the case.
The defendant removes. NOT the plaintiff.
Trick #2: The defendant can’t fucking remove to their own home state in a diversity action.
They just can’t.
But here’s the actual trick… in a _____… the defendant CAN remove to the same state they are from.
Federal Question action
FEDERAL QUESTION CASE = DEFENDANT CAN REMOVE TO THE SAME STATE THEY’RE FROM
DIVERSITY CASE = DEFENDANT ___ REMOVE TO THE SAME STATE THEY’RE FROM
cannot
Defendant has 30 days to remove or 30 days from WHEN
THAT SHIT BECOMES REMOVABLE
Trick #3: Cases Have to “___” Under Federal Law to Get That Federal Question Status
arise
____ service means you are not making the other side formally serve your dumbass a complaint and summons to court.
waiving
why would you want to waive service?
Normally you get 21 days to respond to a complaint with an answer, but if you waive service you get 60 days!
If you are a foreign defendant you get 90 days to respond to the answer instead of 21.
But here’s the actual trick they like: Let’s say you request someone waives service, and they don’t respond. You still have to
fucking serve them.
Trick #5: _____: The Buzz-Word That Changed the World
Anytime the judge has a CHOICE on what to do… and makes a little judgment call based on his understanding of the law and facts… it will be reviewed by the appellate courts using the _____ standard
ABUSE OF DISCRETION
Anyway… how will we know the question is “hinting” at abuse of discretion?
PERMITTED
“the judge/corut PERMITED”
Trick #6: Default Judgment: What happens when someone doesn’t show up. I’m keeping this simple.
The main fucking thing we need to know is who can actually enter the default judgment if no one shows up: we have two options
- ____
2._______
- Daddy Judge
- Baby boy Clerk
Scenario #1: Nobody shows up and doesn’t file a single goddamn thing. ____ enters judgment.
If they never show up, ___ required.
baby clerk
no notice
Scenario #2: Somebody shows up once then stops showing up: _____ must enter the default after a hearing.
daddy judge
IF DEFENDANT NEVER SHOWS UP + SUM CERTAIN = ___ ENTERS DEFAULT JUDGMENT
clerk
IF THEY SHOW UP ONCE = OTHER PARTY MUST SERVE THEM ______ OF DEFAULT HEARING AT LEAST ___ DAYS BEFORE THE HEARING!!
notice
7
TRIED TO THE COURT = ____ = ONLY JUDGE AND NO JURY
bench trial
The trick on the MBE is that the judge will get a little cocky. At the end of the trial he will just say some brief shit like “Judgment is entered for Goat. See y’all later.”
is thsi allowed?
NO because he needs to talk about the FINDINGS of fact and state the CONCLUSIONS of law separately
You can voluntarily dismiss a case ONCE
But then a SECOND voluntary dismissal operates as an ______ = your shitty pro se lawsuit is. now dismissed _______
adjudication on the mereits
a motion for relief must be brought up within ____
one year
examples of thing that warrant a motion for relief:
- mistake
- fraud
- newly discovered evidence
if the judgement is _____ then your motion for relief can be brought up within a _____
VOID
reasonable amonunt of time
if the judgement is _____ (like its been fully paid) then your motion for relief can be granted within ____
discharged
reasonable amount of time
LIP OF THE PEN: ANYTIME
This one is easy. If the court enters in a judgment for $1,000,000 instead of $10,000, you can get relief in this scenario _____(no time limit).
Be on the look-out for them saying “15 months” or “18 months” instead of one year … these little fuckers are sneaky.
any time
If the judge lets in bad evidence and you lose, the best way to attack the verdict is a ___
motion for a new trial.
You can get a motion for new trial if:
- the jury does some crazy shit (like conducts their own experiments or goes on google or talks to a prosecutor)
- _____
- or the jury gives way too high of a verdict, then the judge can offer remittitur and have a new trial if they don’t accept the Judge’s reduced offer
the judge fucks up (like lets in some bad evidence)
Trick #12: How do you win a renewed motion for judgment as a matter of law?
You have to have show:
RuneScape = RJMOL Scintilla
you have to show that there is more than a MERE SCINTILLA of evidence
OR
it will say that there is SUBSTANTIAL evidence in the reocrd to suppoert a verdict
what the answer choice will say when asking about RJMOL.
S.S. = Sunny Skies. Substantial or Scintilla is what the answer choice will say when asking about RJMOL.
How about this… any time the Civ Pro question says “personal jurisdiction” in it… the right answer choice always says _____
“Minimum Contacts.”
Back to our regularly scheduled tricks, sorry about that. Trick #13: What is the standard for JMOL?
LARGE SNAKES EAT BIRDS =
They can only grant JMOL if the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for that party.
Legally Sufficient Evidentiary Basis
Bonus Easter Egg Trick: The citizenship of an LLC is the citizenship of the states of_____ I talked about this shit on Reddit but if an LLC has three members from states A, B, and C… that LLC is a citizenship of states A, B, and C. Easy money. Remember it.
its members
Trick #14: You cannot extend an RJMOL motion. You get ___ days and that is fucking it.
28
At a trial for a motorcycle accident injury Goat will have 3 witnesses saying Rainbow Brown was going 450mph and smashed into Goat with his brand new Ducati Motorcycle.
Rainbow Brown will have ONE and ONLY one witness… who was 100 feet away.
He was a little drunk and “looked away” at the time of the crash but heard a loud noise.
grant JMOL?
YES JMOL GRANTED
THEY WILL HAVE A PROBLEM WHERE THE TESTIMONY IS NOT EVEN IN ACTUAL CONFLICT!!!! JMOL GRANTED!!!
The standard for Summary Judgment is whether or not there is a
GDMF = God Damn Mother Fucker.
GENUINE DISPUTE OF MATERIAL FACT.
A judgment on the pleadings is when a judge rules on the case by only looking at the ___ and ANSWER.
complaint
You gotta file the ___ to that counterclaim before you can file a judgment on the pleading(s).
answer
Trick #19: Didn’t object? ____ is your ONLY recourse.
Plain error
When you do not object in the trial you WAIVE the issue for appeal unless you beg to them on your hands and knees and say “THIS WAS PLAIN ERROR THAT AFFECTED MY____
substantial rights
So the rule for objection on jury instructions is that you must object at the ____the court informs you they will not give your jury instruction.
first time
Trick #20: Can you have fewer than 6 jurors? Yes, if ____
everyone agrees to it
In criminal trials: There must be at least 6 jurors and they must be ____ NO EXCEPTIONS. Crime is serious.
UNANIMOUS.
Trick #21: You are not guaranteed the right to a jury trial in “____” actions.
equitable
The seventh amendment only gives you a right to a jury trial for _____ legal claims, not stopping bulldozers and shit.
CASH MONEY
THE REAL DEADLINE TO FILE A JURY DEMAND IS 14 DAYS AFTER THE DEFENDANT FILES THE ANSWER
IF THE DEFENDANT NEVER FILES THE ANSWER… then the clock
never starts ticking!!!!
Trick #23: Get to the bag first. If you have equitable and legal claims, you must try the l_____ then the judge will deal with your equitable claims.
legal claims first
If the court issues a final Pre-Trial Order = It can only be modified to _____. The court doesn’t like to change these orders late in the game, so it can only be modified for serious reasons - just remember the key words PREVENT MANIFEST INJUSTICE.
PTO - PMI
Prevent Manifest Injustice
Discovery can’t start until a Rule 26(f) discovery conference.
There will usually be a question about a party trying to serve another party INTERROGATORIES before the Rule 26(f) conference starts.
This… my friends… is sadly ___
- RUle 26 Converence
- Discovery
not allowed
The scheduling order for discovery can only be modified for ____ You need to show you acted diligently to meet the deadline. You can’t just say “oh sorry I was busy or on vacation so I couldn’t depose anyone… my bad lol”
good cause
you can’t move for SJ until there has been _____
discovery
My point is this: You can’t rely solely on your pleadings to beat a motion for summary judgment. Your stupid ass pleadings are not “facts” needed to establish a genuine dispute of material fact.
YOU MUST POINT TO SPECIFIC EVIDENCE IN THE RECORD DEMONSTRATING A FACTUAL DISPUTE
COLD HARD EVIDENCE
DEPOSITIONS
AFFIDAVITS BASED ON PERSONAL KNOWLEDGE (HAS TO BE AN AFFIDAVIT OF SOME SHIT YOU KNOW YOURSELF, NOT SOME SHIT YOU LEARNED FROM SOMEONE ELSE)
ADMISSIONS
INTERROGATORIES
With impleader the defendant is saying “wait a second, this motherfucker is actually liable to me if I lose this lawsuit against Mr. Plaintiff, they owe me part of the money the plaintiff gets from me (_____) or the full amount (____)… so I’m going to bring them into the lawsuit”
contribution
indemnification
Crossclaim is when you sue a motherfucker on the ___of the lawsuit as you that is already in the lawsuit.
same side
I talked about this on Reddit but there is only one trick they use for both impleader and crossclaim: you can’t implead or cross-claim someone saying they are solely liable to the plaintiff
Simple as that.
No finger pointin
No finger pointing
Okay what is this permissive intervention shit all about?
When a non-party’s claim shares a COMMON question of LAW OR FACT with an existing claim, the nonparty can intervene.
We need a mnemonic:
Intelligent Cats Love Fish
Intervention - Common - Law - Fact
INTERVENTION QUESTION = ANSWER CHOICE SAYS COMMON LAW OR FACT IN IT
BEFORE YOU MOVE FOR SANCTIONS WITH DADDY JUDGE
YOU HAVE TO SERVE A _____ ON THE OPPOSING PARTY!!! AND GIVE THEM 21 DAYS TO CORRECT THEIR WILDLY FUCKED UP PLEADING!
IF THEY WITHDRAW OR CORRECT WITHIN 21 DAYS = NO SANCTIONS!
MOTION FOR SANCTIONS
Side-Trick: If a lawyer for a party makes a FRIVOLOUS legal argument… they can’t impose sanctions on the ___themselves. It wasn’t their fault.
client
If the client gives you some fake ass documents but they look real and the attorney investigates them, the attorney cannot be sanctioned.
Rule 11 says that attorneys can rely on evidence or documents given by their clients unless facts suggest to them it would be unreasonable for them to do so.
So the correct answer will say this:
“It was likely sufficient to satisfy an objective reasonable attorney.”
IF IT IS A FORUM NON CONVENIENS PROBLEM OR A TRANSFER PROBLEM… THE ANSWER CHOICE WILL ALWAYS SAY
BECAUSE THE WITNESSES ARE LOCATED THERE
Anyway… forum selection clauses are ___. Some questions ask about this.
allowed
a pleading must have statement that contains
plausable entitlement for relief
Bonus Trick: If it is fraud, mistake, or special damages you need to be WAY more specific with this shit. You must show facts supporting EACH ELEMENT OF THE CLAIM!
Bonus Trick Two: A jury demand is often included in a complaint. Sometimes they will have questions which ask you the best way to “secure your right” to a jury demand… just pick the answer choice which says __
“File and serve a complaint which includes a jury demand.”
Amendment as of right:
You can amend once as of right within ____.
Amendment with permission after ___ days:
On day 22 you can amend with consent of the court or the other party.
21
21
If you are past the STATUTE OF LIMITATIONS… you can amend if it’s related to the same ____
YOU CAN AMEND AND ADD A NEW CLAIM AFTER THE STATUTE OF LIMITATIONS SO LONG AS IT IS PART OF THE SAME ___
FACTS
So if I file against you on December 31st for you scamming me on some Pokemon cards… and the Statute of Limitations is January 1st… I can amend my complaint on January 15th to add a claim about breach of contract relating to you breaching our Pokemon card deal
SAME TRANSACTION AND OCCURRENCE
amendments adding a new party
you need two things:
1. mistake of identity
2. other party actually ____ within the _____ period
gets served
SOL
What’s the trick on the MBE? It won’t be a true mistake of identity, therefore it will be a ___-
FUTILE AMENDMENT
Remember, the other side actually has to RECEIVE the lawsuit within the statute of limitations period.
When there is a “valid and on point” FRCP rule which comes into contact with a state procedural rule, the FRCP rule ___every fucking time.
wins
Sometimes in these diversity cases a state procedural rule comes in substantively and it goes to war against the FRCP rule.
The FRCP runs this shit my brothers and sisters in Chris
TRO’s are just orders for a limited time period that tells someone to stop doing shit to maintain the status quo
You need to give the other side ____ unless you write a little affidavit showing _____ injury would occur and you have to certify in writing efforts to give notice to the other party and why it should not be required
notice
immediate and irreparable
in a TRO, do you need notice if you submit an affidavit saying that immediate nad irreparable injury will occur?
NO
A TRO expires in ___ days or unless you show good fucking cause to extend this shit ONLY ONCE up to 28 days
14
MBE Super Trick: The moment you extend the TRO past 28 days, it is treated as a ____ and becomes ___.
preliminary injunction
immediately appealable
MBE Trick: “____” to extend a TRO is not a witness being unavailable for the TRO hearing because they are on vacation.
Good cause
TRO MUST:
- State reasons why it was issued
2.State its terms ____ - And describe in reasonable detail the acts restrained
specifically
So when a judgment is decided “on the merits” = meaning you either lost, you settled, or failed to show up… can you refile in state court?
The question will ask: Should the state court look to federal or state law to decide the claim preclusive effect of the judgment?
The answer is just whatever the fuck the Federal court says.
\
Look to court 1 to decide what happens with court 2.
FEDERAL LAW
How do we serve individuals?
Salmon Are Incredibly Delicious
- however the State law allows
- serve to someone’s AGENT
- serve to the actual INDIVIDUAL themselves
- serve to the individual’s DWELLING by leaving complaint with someone of suitable age and discretion
You can’t appeal until the court enters a final judgment on the entire case. Simple. Easy.
BUT
sometimes you CAN APPEAL when there is not a final judgement, like if there is. MORE THAN ONE CLAIM
you can appeal a PARTIAL JUDGEMENT on just one claim IF
daddy judge says there is NO REASON FOR THE DELAY
BUT, the court will only allowed a “piecemeal” appeal before the final judgement if the claim is ____ and _____
distinct and separate
to be overturned, findings of fact by a judge or jury must be _______ (standard)
clearly erroneous
Step 1: we need a motherfucker in the lawsuit to get everyone money or because his interests will be fucked up = he is ___
Step 2: The motherfucker is from a weird state and ruins diversity
Step 3: The court has to determine whether the motherfucker is SO necessary he is in fact… INDISPENSABLE… AND WHETHER OR NOT IN ____THEY MUST DISMISS THIS ACTION WITHOUT HIM
necessary
EQUITY AND GOOD CONSCIENCE
discovery needs to be proportionate and _____
relevant
for initial disclosures you have to disclose potential ____ witnesses
supporting
(not witnesses you don’t support lol)
There was a question on July 2022 about interrogatories too. Remember, we are allowed ___ ROGS including sub-parts (so a sub-part counts as a question too… these fucks are sneaky)
Each interrogatory and admissions answer is signed and you have a duty to investigate your answers you little shit (we all remember the MEE with drunken lawyer God who didn’t investigate anything and answered “no” to everything lmao)
25
There was a question about this on F23. You must disclose expert testimony at least ____days before the date set for trial.
If the evidence is intended SOLELY to contradict or rebut evidence from the other side, you only need ___ days.
Yes, they actually fucking tested on this. I think they tested the “solely to contradict” exception too. Fucking brutal.
90
30
Final Tricks: If you want work-product you need a showing of ___
undue hardship
The only class action you are required to give notice through reasonable means for is one where all the class members share a common ___
question of law or fact
the seventh amendment preserves the right to a jury trial in actions in which legal, not ______ relief is sought
LOOK FOR ___
equitable
injunction
the right to a jury trial depends on w hether the stautory claim is analygous to one tried to a jury at common law and whether the relief sought is ____ not equitable
legal
a motion for a new trial is granted because of an error during trial, because the verdict is against the weight of the evidence, because of juror _____ or because the verdict is ____ or ____
misconduct
excessive or inadequate
what are the 4 12(b) motions that you MUST use in your first reponsive filing after you get hit with that complaint otherwise you lose them??
- no PJ
- wrong venue
- insufficient process
- isufficient service of process
WHAT IS NEVER EVER WAIVED
SMJ
Category 3: Can be brought ANYTIME before the trial ends (CANNOT BE RAISED AFTER TRIAL YA GOOF – THEY WILL BE WAIVED AFTER TRIAL IS OVER)
failure to state a claim aka a Rule 12(b)(6) motion
Goat what if I want to file a “failure to state a claim” 12(b)(6) motion to dismiss after I file my answer?
you can do that. It will just be called a “judgement on ____”
the pleadings
FINAL REMINDER: The failure to state a claim 12(b)(6) is brought ____ an answer, and the judgment on the pleadings is brought after all the answers are filed. They both are just saying “hey your honor… we can’t go to trial, look at all these pleadings and you can see the other side is bullshitting us.”
before
a party is considered “necessary” under three simple conditions:
- not joining them will hurt the absensee party’s interest
- not joining them will hurt the interest of the parties oto the action so they win’t be able to get all their money
- not joinging the will cause ___
if the answer is YES to any of these, then the court MUST join them if feasible
more lawsuits down the road
if a party is indispensible and he CANNOT MAKE IT to the lawsuit, the court may dismiss the case OR keep going if it is in “equity and ____”
good conscience
