Civ Pro Flashcards
1
Q
Specific PJ requires two things:
A
(1) A long arm statute (2) that satisfies the constitution (through minimum contacts).
2
Q
Federal courts decide PJ in the
A
Same way as the state court in the state where the federal court sits would
3
Q
There must be enough contacts that the exercise of PJ over the def doesn’t….
A
Offend traditional notions of fair play and substantial justice.
4
Q
To have enough contacts, there must have been 1. and 2.
A
Purposeful availment
Foreseeability
5
Q
PJ is improper if the claim ______ relate to the ______ with the forum
A
Does not
Def’s contacts
6
Q
The Constitutional analysis for specific PJ is divided into three categories:
A
Contact, Relatedness, Fairness
7
Q
The fairness factors to be considered for Specific PJ (ONLY) are
A
Burden on the def/witnesses
State’s interest
P’s interest
8
Q
To be proper, service of process must include:
A
Summons
Copy of the complaint
9
Q
Service of process must take place within
A
90 days of the complaint
10
Q
Service of process can be made through
A
- Personal service (anywhere)
- Substituted service (abode+suitably aged person+who lives there)
- Service on Agent
- State law methods (where Fed court sits or where service is made)
- To a business’s officer, manager, or agent
11
Q
Waiver of process has this effect on defenses
A
none
12
Q
Unlike PJ, SMJ ______ be waived
A
cannot
13
Q
When is the diversity of a case determined for purposes of SMJ?
A
When the case is filed
14
Q
Domicile can be changed by
A
-Physical presence in new domicile
-Intent to make that place your indefinite home
15
Q
A corp is a citizen of
A
State of incorp and state of PPB
16
Q
An unincorporated business is a citizen of
A
All the states of its members, partners, gen/limited partners
17
Q
For class actions, the relevant citizenship (in terms of SMJ) is
A
The class rep
18
Q
The AIC claim of a P is given
A
Good faith assumption of accuracy and only overturned if it is a legal certainty that the P cannot recover more than $75k
19
Q
Aggregation for the AIC of SMJ is allowed if
A
It is a single plaintiff against a single def
OR
Multiple plaintiffs against a single def for the same claim
20
Q
The value of equitable relief (for AIC) can be determined by looking at either
A
the value to the P or the cost to the D
21
Q
Federal courts will not here the following family law cases including
A
ISSUANCE OF DECREE involving:
Divorce, alimony, child custody, probate
22
Q
Collusive change of citizenship for SMJ purposes leads to
A
the court ignoring that change, finding diversity doesn’t exist
23
Q
To get into Federal court on Fed Q SMJ, you must
A
- Include the federal issue in the well pleaded complaint rule
- The claim must arise under federal law
Ask if the plaintiff is enforcing a federal right
24
Q
A case filed in state court can be removed to Fed court if
A
The case court have been filed in Fed court
25
Removal must occur within __ days after the _________
30
filing showing the case is removable
26
All ______ must consent to removal. No ______ can ever remove.
Defendants
Plaintiffs
27
Two limitations on removal for diversity cases:
-Home state def rule
-No removal if more than one year has passed since filing in state court
28
If for any reason other than lack of SMJ, remand must be requested within ___ days
30
29
Supplemental jurisdiction is possible for Fed Q cases if
the claim has a CNOF (arise from the same T/O)
30
Supp Jur is proper for Diversity cases if ______. It is improper if ______.
It is multiple P's aggregating for AIC purpose
OR
D's are bringing the claims
If P is bringing the claims
31
Supp Jur is always proper for these cases
Ones that independently meet the Fed Q/DIv requirements
32
Federal courts must have SMJ over ____ claim in a case
EVERY
33
If the Supp Jur requirements are met the court still has ____ whether to exercise
Discretion
34
The steps to Erie Analysis are
1. Fed Law beats state law IF on directly point
2. If no Fed law on point, is it one of the five issues that is always substantive
3. If no fed law on point and not w/in the five categories, determine if the issue is substantive through one of three tests
35
The five issues that are always substantive for Erie purposes
1. Conflict of law rules
2. Elements of claim or defense
3. Statute of limitations
4. Tolling of SoL
5. Standard for a new trial due to improper damages
36
The three tests to determine if an issue is substantive for Erie purposes are
1. Outcome determinative test - if determinative, it is likely substantive
2. Balance of interests - state v. fed have a greater interest?
3. Avoid forum shopping
37
Venue is proper in any district where
Residential Venue - All def's reside
OR
Transactional Venue - A substantial part of the claim arose or where the property involved in the lawsuit is located
38
For venue, the rules on a human and a corp are
Human is subject to Venue where domiciled
Business is subject to Venue anywhere it is subject to PJ
39
To survive a Rule 12(b)(6) motion the complaint must
state sufficient facts to support a plausible claim
40
The higher pleading standard for fraud, mistake, and special damages require
pleading with particularity and specificity
41
These 12(b) defenses are waived if not included in the first 12(b) response (motion or answer)
PJ
Venue
Process (docs)
Process (service)
42
Two 12(b) motions that can be raised as late as trial but not after
Failure to state a claim
Failure to join an indispensable party
43
One 12(b) motion that is never waived
Lack of SMJ
44
If a Rule 12 motion is denied, the def must serve an answer within
14 days
45
Rules on amending a complaint
P - can amend once w/in 21 days of Def's first response
D - can amend answer once w/in 21 days of serving, which can include omitted 12(b) defenses
Other amendments can be made at discretion of court
46
A claim that has expired under SoL may be joined if it
relates back (Same T/O)
47
Before sanctions motion can be filed, the moving party must
serve the other party and give 21 days to fix
48
Joinder of claims against the def by plaintiff is allowed for
Any claim against the adverse party, whether related or not, but ONLY IF there is SMJ over that claim
49
Multiple Ps or Ds can be joined if
The claims arise from the same T/O
AND
Raise at least one common question of law or fact
50
Joint tortfeasors are never ______ (for purposes of joinder)
necessary
51
A party is necessary if:
-Complete relief can't be afforded w/o them
-Absent party's interest may be harmed (most common)
-Absence may subject D to multiple obligations
52
A necessary party will be joined if
Feasible - meaning:
-There is PJ over absent party
-There will be SMJ over the claim (the court will align them as P or D based on their interest)
If feasible, absent party is joined
53
If it is not feasible for a necessary party to be joined, the court will consider factors to determine if the case can proceed:
-Is there an alternate forum available?
-What is the likelihood of harm to the absent party?
-Can the relief be shaped to avoid harm to absent party?
54
A necessary party will be joined if ____. If not feasible, the party may be ____ in which case the case is dismissed.
feasible
indispensable
55
The types of counterclaims
Compulsory - same T/O, must be brought or waived
Permissive - any other claims may be brought if there is SMJ
56
Crossclaims are ______ and they are never ______
a claim against a coparty (same side of the V)
Compulsory
57
Impleading a third party is ______ permissive
always
(must have SMJ)
58
Interpleader allows
One party to require two or more adverse claimants to litigate to determine which of them has a valid claim to the cause of action (to prevent double liability)
59
The requirements of a class action are
Numerosity, Typicality, Commonality, and Adequate Rep
60
Three types of class actions
1. Interests Prejudice - class treatment to avoid harm to class or defs
2. Actual prejudice for Injunctive relief - treated class members alike (discrim)
3. Money Damages - common questions must predominate and CA is superior method to handle the dispute
61
Notice and opt out is required for
Money Damages class
(for Prejudice and Injunctive Relief classes, it is not required)
62
CAFA grants SMJ for a federal court if
-There are 100+ members
-Any class member is diverse from ANY defendant
-Aggregated claim exceeds $5 Million
63
Initial disclosures require the party to provide
who and what the party will use to support its claim/defense (only the good stuff)
64
Requests to produce are when a party
asks for access (typically the bad stuff)
Must be produced or privilege claimed
65
Medical exams in discovery are
never mandatory, rather a court order must be obtained based on (1) actual controversy over health and (2) good cause
66
The scope of discovery is
Anything relevant to a claim or defense AND proportional to the needs of the case
67
Work product is privileged, but may still be discovered if the moving party can show
substantial need AND undue hardship in getting the material
Opinion work product is never discoverable
68
During discovery a protective order can be sought if
a discovery requests is annoying, embarrassing, unduly burdensome or expensive
However, the party seeking it must first show it tried to resolve the issue with the opposition
69
The difference between a Prelim Injunc and a TRO is
Prelim Injunc stays in effect until trial
TRO is limited to 14 days+14 days renewed (MAX)
70
The standard for an ex parte TRO is
Moving party will suffer immediate and irreparable harm if the court waits
AND
They tried to notify opposition OR why notice shouldn't be required
AND THEN
Posting bond for oppositions costs/damages if TRO turns out to be wrongful
71
The standard for a prelim injunc is
-Likely to suffer irreparable harm
-Likely to win on merits
-Balance of hardship favors moving party
-Injunction is in the public interest
72
P can voluntarily dismiss without losing right to bring the claim later if
they do so before D serves answer or MSJ
(only one voluntary dismissal w/o prejudice)
73
Default v. Default Judgment
Default - entered by clerk when D has not responded w/in 21 days of service, cuts off Def's right to respond but does not entitle plaintiff to recovery
Default Judgment - Entered by clerk or Judge, adjudicates liability
74
Requirements for a default judgment to be entered by clerk:
-D never made a response/appearance
-Claim is for a sum certain (per P's affidavit)
-D is not a minor or incompetent
75
If Def Judg can't be entered by a clerk, it must be entered
By hearing in front of a judge, with notice to Def if they have appeared
76
Standard for MSJ
No GIMF
Entitled to judgment as a matter of law
77
A jury demand must be made within
14 days of last pleading addressing a jury triable issue
78
Ways to get rid of a potential jury member in voir dire
-For cause (incapable of being fair)
-Preemptory (no reason necessary, but can't be race/gender bias)
79
A JMOL can be raised
at the close of the opposing party's argument AND as a renewed JMOL after verdict, but only if the same basis for the JMOL was raised at trial
80
A motion for new trial must be made
within 28 days of judgment
81
Before a case can be appealed, there must be
a final judgment (that is the trial court has nothing left to do on the merits)
82
Interlocutory appeals are allowed as a right for
decisions regarding prelim or permanent injunctions (Not for TROs)
83
Interlocutory appeals act allows appeal if
-District Judge certifies that it involves a controlling issue of law
-Substantial grounds for difference of opinion
-Court of appeals agrees to hear it
84
Standard of review
Q's of Law - De novo
Q's of fact (bench trial) - clear error
Q's of discretion - abuse of discretion (ie amend pleadings, permit intervention)
Harmless error applies
Q's of fact (jury trial) - reasonable person could find
85
Claim preclusion requires
-Same exact claimants in same orientation
-Claim based on same T/O
-Valid, final judgment on merit (not based on rule 12(b))
If these are met, then the claim is BARRED from being brought again
86
Issue preclusion is allowed if
-Valid final judgment
-Issue was actually litigated
-The issue was determinative
If met, the issue is settled for the later case
87
Issue preclusion can be used against
A party to the first case or someone in privity with them
88
A court may allow a second opportunity to opt out only for a ____ class action where a ____ has been reached
23(b)(3) - common questions / money damages class
Settlement
89
If legal and equitable claims are joined in one action, they will be heard in what order and who will operate as the finder of fact?
The legal claim is tried first before the jury as the finder of fact.
Then the equitable claim will be tried and the fact finding of the jury will bind the court.
90
Interpleader actions area llowed in federal court if
-Simple diversity
-AIC over $500
91
When issue preclusion is asserted, the recognizing court should not give a judgement any greater effect than the
rendering court would
If the rendering court would not allow IP, the recognizing court should not either
92
If Venue is proper, a court still may transfer if
it is in the interest of justice for the convenience of the parties and witnesses
93
the difference between insufficient process and insufficient service of process is
Process - Docs
Service of process - manner of service
94
JMOL Approval Standard
a reasonable jury would not have had a legally sufficient basis to reach the verdict given
95
New Trial standard
Serious error at trial such as
-Error in admission of evidence
-Error in instructing the jury
-Error in award
-Serious error in jury's judgment (judge can't substitute their own view)
-Juror bias clouded judgment
