Civ Pro Flashcards
P’s claim arises from the anticipation of a federal defense
No Federal Question JX
P’s claim implicates federal law
No Federal Q JX: such jurisidiction must be made out in P’s first complaint
State rules of civil procedure…
are subordinate to federal rules of procedure. If in federal court, follow federal rules of procedure even if there is a state rule of procedure on point
multiple P’s may NOT aggregate their claims against a single D unless:
they are seeking to enforce a joint right in which they have an undivided interest
general jurisdiction is a ___ standard to meet
difficult
general jurisdiction requires a D to be …
at home
unilateral activity of the P will or will not be considered purposeful activity?
will NOT
for personal jx internet contacts …
can be sufficient to create personal jurisdiction when they are purposeful and the claim arises from those contacts
when a D waives service of process …
he is allowed additional time (60 days from date P mailed the summons) to respond to the complaint
additional time for a D that waived service of process begins
from the date the waiver of process was sent by the P
Ex parte TRO – a TRO may be granted by a court when it necessary to prevent irreparable and immediate harm without notice of the hearing IF moving party–>
- gives specific facts in affidavit or complaint to establish immediate and irreparable injury before adverse party can be heard
- certifies in writing all efforts it made to give notice to adverse party and why notice should not be required
- provides some security to pay for any costs and damages incurred by adverse party if its wrongfully restrained
if a jx does not recognize contribution among joint tortfeasors can a D bring in a third party claim stating the 3rd party is liable in some way?
No
what must a motion to compel discovery certify if it wishes to be awarded reasonable expenses?
that the moving party has made a good faith attempt to confer with the opponent to obtain the discovery without court intervention
After a D files an answer, can an action be dismissed by the P?
Only by a stipulation signed by all parties or by an order of the court
for claim preclusion, a later claim is deemed to be the same if
it arises from the same transaction or occurrence as the earlier claim
T/F - In rem actions binds the property that was the subject of the disposition, and also the parties personally
F
when a party claims certain discoverable info is privileged or trial prep material what must it also do?
disclose the existence of the material in sufficient detail to the opposing party so it can assess the privilege claim
can a fed. trial judge that believes compensatory damages awarded were inadequate offer the D the choice of paying more?
No, additur is unconstitutional
when removal is based on diversity jx and a D is a citizen of the state where the state action was brought can the action be removed?
No, if it were based on FQ jx it could be though
What level of review should appellate courts give the findings of fact of the previous judge?
they should only be set aside if they are clearly erroneous
T/F: courts can grant partial summary judgments
T
In every class action notice of ___ must be provided
dismissal or compromise
notice of pendency NOT required
when a D does not waive service of process
P must serve and D is liable for the cost of service unless he can show good cause for not waiving
in a typical class action - diversity is determined on the basis of
the citizenship of the named members of the class who are suing
A juror can testify on matters occurring during deliberation ONLY IF
they are testifying on a question of whether extraneous prejudicial information was improperly brought to a jury’s attention OR whether any outside influence was brought to bear on a juror
what does it mean to take judicial notice of a fact
means it is a matter of common knowledge in the community but the jury is not required to accept the fact as conclusive in a criminal case
- do not need to resort to reference materials
- they are not subject to reasonable dispute because they are generally known within community
T/F: For Double Jeopardy, a D cannot be prosecuted for the same criminal conduct
F
- two crimes do not constitute the same offense if each crime requires proof of an additional elements even though some of the same facts may be necessary to prove the crime
claims can be dismissed if they fail to:
put the other side on notice of the claim being asserted which requires some form of details
Claims that assert fraud or mistake requires a P to assert a claim for relief with
particularity
When a case is filed in an improper venue the court must
either
- dismiss the case
- transfer the case to a venue where the case could have initially been brought
When most removal be made?
30 days after receipt of the complaint
What is plain error review?
The standard of review that applies to jury instructions that the appellant did not timely or properly complain about in district court
T/F: a remand is considered a final order
T (SOMETIMES) bc it puts the case out of federal court
- BUT remands that are based on a defect in the removal procedural or lack of fed. jx cannot be appealed
Can remands based on discretionary choice be appealed?
Yes for review for abuse of discretion
Whether to hear new issues on appeal is
within the court’s discretion
- appellate courts frequenetly hear new issues when they are issues of law and no factual record is required
May a P join all claims she has against a D even if they are unrelated?
Yes
