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Civ Pro Flashcards

1
Q

The basis for federal SMJ must be

A

affirmatively pleaded in every case

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2
Q

Lack of SMJ may not be

A

waived

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3
Q

Objections to SMJ may be raised

A

by any party at any time (including by plaintiff, by the court itself, or on appeal)

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4
Q

Federal Question Jx must be

A

based on federal law and pleaded in plaintiff’s well-pleaded complaint

Note: only P’s claims count for establishing jx, potential federal defenses are irrelevant to determining federal question jx)

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5
Q

Requirements for Diversity Jx

A

(1) No P is same citizen as any D, and
(2) Amount in controversy exceeds $75,000

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6
Q

Diversity is determined

A

when the complaint is filed

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7
Q

Minimal diversity arises when

A

any plaintiff is diverse from any defendant

Applicable to:
(1) Federal Interpleader Act
(2) Class actions of at least 100 people with AiC exceeding 5 million (Class Action Fairness Act)
(3) Interstate mass torts (more than 75 dead)

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8
Q

Citizen’s domicile is determined by

A

residence + intent to remain indefinitely (can only have one domicile)

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9
Q

Corporations domiciled

A

(1) Where incorporated, and
(2) Where it has principal place of business

Corps can have multiple domiciles / citizenships

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10
Q

Aggregation of claims to reach $75k threshold is

A

OK for 1 P v. 1 D

NOT OK for 1 P v. Multiple D
NOT OK for Multiple P v. 1 D

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11
Q

Removal is only proper if

A

(1) Case could have been brought originally in federal court
(2) Removal made by Defendant (unanimous agreement within 30 days of service)

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12
Q

Removal based on diversity is only proper if

A

(1) Complete diversity
(2) AiC exceeds $75,000
(3) The action is brought in a state of which no defendant is a citizen

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13
Q

Upon Removal, State Jx

A

Automatically ends

P can file to remand back to state court, which is determined by the federal court

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14
Q

Supplemental Jx allows federal courts to hear additional claims if

A

the additional claim arises from the same case or controversy (common nucleus of operative fact / same transaction or occurrence) as the anchor claim

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15
Q

Supplemental Jx is

A

permissive (courts have discretion to hear or not hear additional claim - no absolute requirement)

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16
Q

Plaintiff rights v. Defendant’s rights under Supplemental Jx

A

Broadly available for Defendants to bring claims in under Supplemental Jx, much more limited for Plaintiffs (generally OK just against one defendant where no joinder rule is involved)

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17
Q

Must permissive counter claims independently satisfy diversity requirements for Supplemental Jx?

A

Yes (as opposed to compulsory counter claims which do not)

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18
Q

Cross-claims must satisfy

A

relatedness requirement (same transaction or occurrence)

Note: ALL cross-claims are permissive

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19
Q

May plaintiffs who do not independently satisfy diversity requirements join a suit against a single defendant if at least one plaintiff can meet requirements?

A

Yes (so long as other plaintiffs have related claims)

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20
Q

Long Arm statutes allow for

A

specific in personal jurisdiction over out of state defendants for particular transactions involving that state

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21
Q

Elements of determining PJ

A

(1) Has basis for extending PJ over out of state defendant been authorized by statute or rule of court?
(2) Is particular basis for establishing PJ permitted by Due Process clause

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22
Q

A defendant may waive objections to PJ by

A

(1) Consent
(2) Voluntarily litigating (absent raising PJ in defense)
(3) Substantial participation on the merits before raising objection

Note: Defense to PJ must be asserted in first response / motion, but may be done in an amended response (within 21 days)

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23
Q

Objection to PJ must be raised

A

At the first opportunity to do so (generally either motion to dismiss or in the answer)

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24
Q

To establish (specific) PJ, due process requires

A

minimum contacts between the defendant and forum state and consistent with traditional notions of fairplay and substantial justice

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25
Q

To establish minimum contacts, courts look to whether

A

defendant purposefully availed themself to the forum state and whether it would be consistent with traditional notions of fair play and substantial justice

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26
Q

General PJ v. Specific PJ

A

General PJ: May bring any claim whatsoever, even if unrelated to D’s contacts with forum state

Specific PJ: P’s claims must arise out of / relate to D’s contacts with forum state

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27
Q

Bases for General PJ

A

(1) Physical presence within state (absent force or fraud)
(2) Domicile (independent of physical presence)
(3) Consent
(4) Corporations (where “at home” -incorporated OR has principal place of business)

“Continuous and systematic contacts with forum state”

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28
Q

Specific PJ turns on

A

the connection between a lawsuit and the defendant’s contacts with the forum (arise out of D’s contacts / be related to those contacts)

Minimum contacts test

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29
Q

Bulge provision allows for service

A

Anywhere within 100 miles of federal court house for:

(1) Impleading 3rd party defendants under rule 14, AND
(2) Joining necessary parties under rule 19

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30
Q

In Rem Jx is

A

A form of specific PJ against a thing (the res)

State’s courts must have physical power over property (e.g. land, bank account)

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31
Q

Service generally includes

A

a summons and copy of the complaint

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32
Q

Federal Laws for service always allow

A

(1) Personal delivery
(2) Leaving summons at defendant’s dwelling with a person of suitable age and discretion
(3) Delivery of summons to an authorized agent
(4) Mail requiring a signed receipt (for persons in foreign countries)

Note: Service is proper pertinent to the laws of the state where service is made (e.g. if a state allows service by certified mail, and service is done so within that state, it is satisfied)

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33
Q

For service on minors and those adjudicated incompetent, service must be on

A

BOTH minor/incompetent person and a guardian

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34
Q

Publication only satisfies service if

A

Claimants cannot be located after a diligent effort has been made to locate them and serve personally

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35
Q

Defendant’s rights to waive service

A

30 days to respond to request to waive summons, if accepts 60 days to file response. Otherwise must respond in 21 days + pay costs associated with service

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36
Q

Preliminary injunctions require

A

(1) Notice to the defendant
(2) Hearing on whether injunction should be granted

Note: rarely granted, must show irreparable harm / likely to succeed on the merits / monetary damages inadequate

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37
Q

Objections to venue must be raised

A

at the first opportunity to do so (either pre-answer motion to dismiss or within D’s answer)

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38
Q

Federal Venue is proper where

A

(1) Any D resides so long as ALL defendant’s reside in same state, OR
(2) Where claim arose (where a substantial part of the events or omissions arose)
(3) A substantial part of property at issue is located

Note: Catch-all (if none of the above apply) is venue is proper where D is subject to PJ

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39
Q

Case brought in district with proper venue may

A

be transferred for convenience to another venue

Note: if transferred, law of transferor forum controls

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40
Q

Case brought in district without proper venue may be

A

(1) Dismissed, or
(2) Transferred to district with proper venue in the interests of justice

Note: if transferred, law of transferee forum controls

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41
Q

Under Erie, in a diversity case a federal court

A

applies federal procedural law and state substantive law

Procedural law: does not abridge, modify, or enlarge a substantive right (e.g. federal service of process rules in federal court)

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42
Q

The two “twin aims” of Erie

A

(1) Avoid forum shopping
(2) Avoid inequitable administration of justice

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43
Q

State substantive law includes

A

(1) Rules that govern conduct (e.g. required elements of a claim and defenses to a claim)
(2) Statutes of Limitations
(3) Burdens on state claims or defenses (e.g. evidentiary privileges)
(4) State rules on choice of law

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44
Q

If the choice of procedure would be outcome determinative, the federal court should apply

A

State law to prevent forum shopping

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45
Q

The role of the jury in federal court

A

is entirely controlled by federal law

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46
Q

Federal district courts follow state law by

A

(1) Following precedent of state supreme court
(2) Predict state supreme court’s ruling if no precedent exists
(3) Give respectful attention to decisions of lower state courts (not binding)

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47
Q

3 types of pleadings

A

Complaint, Answer, Reply

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48
Q

Requirements of notice pleading

A

(1) Fair notice of pleader’s claim
(2) Short and plain statement of the claim showing the pleader is entitled to relief

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49
Q

Requirements of a Complaint

A

(1) Short and plain statement of court’s SMJ
(2) Short and plain statement showing claimant is entitled to relief
(3) Claim for relief sought by pleader

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50
Q

Types of claims which require special pleading

A

(1) Fraud or Mistake
(2) Claims for special damages

(Must be plead with particularity)

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51
Q

Two-Step Inquiry post Twombly & Iqbal

A

(1) Identify allegations that are “conclusory” or “mere legal conclusion”
(2) Looking at remaining factual allegations and ask whether they add up to “Plausible” case for recovery

TLDR: Do allegations state plausible case for recovery? Plausible = somewhere between probable and conceivable

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52
Q

12(b) Motions to Dismiss include

A

(1) Lack of SMJ
(2) Lack of PJ
(3) Improper Venue
(4) Failure to state a claim
(5) Failure to join a necessary party
(6) Forum non conveniens

(2) and (3) must be raised at earliest opportunity

Note: When considering a motion to dismiss for failure to state a claim, the court must (1) treat all well-pleaded facts in the complaint as true and (2) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant

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53
Q

Motion for judgement on the pleadings

A

Parties agree on the facts, differ on the law

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54
Q

Motions to strike

A

Used to delete from a pleading scandalous or prejudicial matters not relevant, or used to strike invalid defenses

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55
Q

Answers must

A

(1) Respond to any form of complaint
(2) Contain Responses (admissions and denials)
(3) Raise affirmative defenses
(4) Raise compulsory Counter claims

Otherwise, these items will be waived

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56
Q

Affirmative Defenses in responses include

A

assumption of the risk, contributory negligence, fraud, duress, release, SoF, SoL

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57
Q

Answers are due within

A

21 days from service if complaint

OR

14 days after court’s notice to deny 12(b) motion to dismiss

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58
Q

Amendments to pleadings may be done

A

(1) Once as of right (within 21 days), and
(2) Sought from court & freely granted

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59
Q

An amendment relates back to date of original filing if

A

it concerns the same conduct, transaction, or occurrence as the original pleading

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60
Q

An amendment to add a party may be allowed when

A

(1) it concerns the same conduct, transaction, or occurrence as the original pleading,
(2) defendant received notice of action within 90 days of original complaint, and
(3) the party being added must have known or had reason to know that the action should have been brought against them absent a mistake

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61
Q

Pleadings and other documents must be certified, meaning they are

A

signed by an attorney of record certifying there is a factual and legal bases for the filing

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62
Q

Permissive joinder of parties is allowed if

A

claims arise out of the same transaction or occurrence and there is common question of law or fact

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63
Q

A party is necessary in the context of compulsory joinder when

A

(1) Complete relief cannot be accorded absent the party
(2) The necessary party has an interest in the subject of the litigation which will be impeded by the current litigation
(3) There is substantial risk of double or inconsistent liability imposed on others if party is not brought
(4) There may exist prejudice to existing parties

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64
Q

Feasibility of joining a necessary party requires

A

(1) Valid SMJ (joinder won’t destroy complete diversity)
(2) Valid PJ over additional party (includes bulge provision)

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65
Q

If a necessary party cannot be joined the court may

A

(1) Continue without necessary party, OR
(2) Dismiss the whole suit (necessary party is indispensable)

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66
Q

Two types of intervention

A

(1) Intervention as of Right
(2) Permissive intervention (common question of law or fact, at court’s discretion to allow)

BOTH require reasonable promptness and neither may be added based on supplemental jx

67
Q

The special provisions of Statutory Interpleader are

A

(1) Special jx amount (only $500)
(2) Minimal diversity for SMJ (any 2 claimants are different)
(3) Venue is proper in any district where any claimant resides
(4) Nationwide service of process

68
Q

Impleader (bringing in 3rd party defendant) is most often seen with

A

(1) Indemnification contracts
(2) Contribution among joint tortfeasors

Note: such joinder is permissive and NOT required

69
Q

Prerequisites of a Class Action

A

(1) Numerosity
(2) Commonality among question of law or fact
(3) Typicality of claims by class representatives
(4) Adequacy of representation

(Dismissal or settlement of Class Action requires judicial approval)

Appeal regarding certification / rejection of a class must be done within 14 days

70
Q

Scope of allowed Discovery

A

Anything that might be admissible at trial or something which might lead to something admissible

71
Q

Work Product Rule protects

A

(1) Documents and Things
(2) Prepared in anticipation of litigation or for trail
(3) By or for another party or the party’s representative

72
Q

The work product rule creates

A

qualified immunity (may be overcome if party shows need and that it cannot obtain the evidence elsewhere and would be substantially prejudiced if not allowed to access)

73
Q

Six discovery devices

A

(1) Oral depositions
(2) Written depositions
(3) Interrogatories (may respond with business records)
(4) Discovery and Inspection of documents and land (described with particularity)
(5) Physical and Mental examinations (against party when in case or controversy and in good cause)
(6) Request for admission (failure to respond within 30 days = admission)

Note: Only (1) and (2) may be used against non-parties

74
Q

Admissions are binding in litigation but have

A

no preclusive effect

75
Q

3 instances which warrant complete default and subsequent enforcement sanctions

A

(1) Failure to attend own deposition
(2) Failure to respond to interrogatories
(3) Failure to respond to a request for documents or things

76
Q

Voluntary dismissal

A

ordinary without prejudice

P has right to voluntary dismissal once at a time prior to D’s answer or MSJ (otherwise must seek leave of the court)

77
Q

Involuntary dismissal

A

typically with prejudice (except if for lack of jx, improper venue, or failure to join indispensable party)

78
Q

Standard for Motion for Summary Judgement

A

No genuine dispute as to any material fact and moving party is entitled to judgment as a matter of law

Based on sworn statements based on personal knowledge

(no genuine dispute = no reasonable jury could find for the non-moving party)

79
Q

Elements of Trial by Jury

A

(1) Made by either party 14 days after service of last pleading or 12(b) motion
(2) Min 6 max 12 jurors
(3) Parties may request specific instructions of jury (objections must be timely and on record)
(4) Unless otherwise stipulated verdicts must be unanimous

80
Q

Standard for Judgement as a Matter of Law (JMOL)

A

Viewing evidence in light most favorable to the non-moving party, the evidence cannot support a verdict for the other party, and the moving party is therefore entitled to a judgement as a matter of law

Note: Cannot turn on the credibility of a witness

81
Q

Elements of renewed motion for judgement as a matter of law

A

Evidence cannot support jury’s verdict and the moving party is therefore entitled to a judgement as a matter of law (must be made within 28 days of judgement, and prior JMOL is required to have been raised)

82
Q

Elements for a Motion for a New Trial

A

(1) No later than 28 days post entry of judgement
(2) Granted in sound discretion for reasons such as legal errors, newly discovered evidence, prejudicial misconduct, and verdict is against the great weight of evidence either in substance of verdict or amount of damages

83
Q

Interlocutory orders that are immediately appealable are

A

(1) Any order granting or modifying an injunction
(2) Any order that changes or affects possession of property

84
Q

Standard for granting discretionary interlocutory review

A

(1) Appealable with leave of courts (BOTH trial and appellate courts must agree)
(2) Trial court certifies that the issue involves a controlling question of law with substantial grounds for difference of opinion, AND immediate appeal may materially advance termination of litigation

85
Q

Standards of Review upon Appeal

A

Question of Law: De Novo

Findings of Fact: Clearly erroneous (affirm if supported by substantial evidence)

Matters of discretion: Abuse of discretion

Full Faith & Credit: Rendering court MUST have had jurisdiction

Note: Motions of appeal must be filed within 30 days after final judgement

86
Q

Requirements for Claim Preclusion (Res Judicata)

A

(1) There was a final judgement on the merits
(2) The second suit must be between the same parties or their successors in interest
(3) The second suit must involve the same claim or cause of action

87
Q

Question to ask when assessing for Claim Preclusion

A

Should this have been raised in the first suit?

88
Q

Requirements for Issue Preclusion

A

(1) Same issue of fact must arise in two suits
(2) That issue must have been actually and necessarily decided in the first suit, by a valid and binding judgement, and
(3) The party being precluded must have been a first party in the suit

Note: Only applies to issues actually litigated (e.g. not default judgements)

89
Q

When there is no requirement for mutuality of estoppel, how can issue preclusion be used?

A

Defendants may use issue preclusion against a plaintiff if the plaintiff had an opportunity to litigate the issue against another defendant and lost

90
Q

A default judgement may be entered by the clerk of the court unless

A

(1) Defendant has appeared
(2) Defendant is legally incompetent or a minor
(3) P’s claim is not for a sum certain or a sum that can be made certain by calculation
(4) Plaintiff failed to include an affidavit establishing the amount due

91
Q

A court must on request, or may on its own initiative, poll the jurors individually after a verdict is returned but before a jury is discharged. If the poll reveals the verdict is not unanimous, the court can

A

(1) direct the jury to deliberate further, or
(2) order a new trial

92
Q

Failure to file proof of service with the court

A

does not affect validity of service

93
Q

The abuse-of-discretion standard of appellate review applies to

A

a trial court’s discretionary rulings—e.g., whether to admit evidence (reversed only if arbitrary or unreasonable)

94
Q

Spoliation of evidence is

A

the negligent or intentional destruction or significant alteration of evidence required for discovery

95
Q

A party must preserve evidence/records/electronic information if

A

(1) litigation is anticipated / foreseeable
(2) within the ordinary course of business, such information would be deleted or destroyed

96
Q

Sanctions are authorized for spoliation of evidence only if

A

the information cannot be restored or replaced by additional discovery

97
Q

In determining sanctions for spoliation of evidence, the court should consider

A

(1) the prejudice to another party, and
(2) the intent of the party that failed to preserve the evidence

98
Q

When retrieval of destroyed information is possible, even if typically considered inaccessible due to the cost of retrieval, a court may

A

order it and assign the costs to the party who destroyed the evidence

99
Q

If the court finds that the sanctioned party acted with the purpose of depriving the other party of evidence to use in litigation, the court may order sanctions including

A

(1) a presumption that the destroyed or list information was unfavorable to the sanctioned party
(2) a jury instruction that it may or it must presume the information was unfavorable to the party, or
(3) an entry of a default judgement against the party.

100
Q

Federal courts sitting in diversity jx CANNOT exercise jurisdiction over

A

probate matters and domestic relations

101
Q

For foreign defendants, venue is proper

A

in any federal district

102
Q

Any absent defendant who does not personally receive notice may

A

file a motion to set aside the judgment at any time within one year of the final judgment

103
Q

Under the final-judgment rule, a federal appellate court generally has no jurisdiction to hear an appeal until

A

the district court has issued a final judgment—i.e., a decision that fully resolves the dispute on the merits.

However, the interlocutory appeals statute allows certain orders to be appealed before the entry of a final judgment.

104
Q

A district court can correct a mistake in a judgement order or other part of the record if

A

Done prior to an appeal being docketed.

Otherwise, after an appeal has been docketed a district court may only do so with the appellate court’s leave

105
Q

Damages related allegations will not be admitted by

A

the defendant’s failure to deny them in an answer

106
Q

A federal court may impose reasonable (pre-trial) sanctions on any attorney or party who

A

(1) failed to attend a pretrial conference
(2) did not participate in good faith, or was substantially unprepared to participate, in the conference, or
(3) failed to obey a pretrial order

107
Q

Concerning allegations in a defendant’s response to a complaint, a plaintiff need not

A

respond to the allegations unless ordered by the court (they are deemed denied)

108
Q

When an action involves multiple claims or parties, a district court may enter final judgment as to fewer than all claims or parties if it expressly determines that there is no just reason for delay. However, if this express determination is not made

A

any court order that disposes of those claims or parties is not immediately appealable.

109
Q

A plaintiff may assert a third-party claim against a third-party defendant if

A

(1) that claim arises out of the same transaction or occurrence as the plaintiff’s claim against the defendant in the original complaint and
(2) the third-party claim satisfies original subject-matter jurisdiction

110
Q

Sanction proceedings can be initiated against an attorney by

A

(1) a party’s motion or
(2) a court’s own initiative—so long as the judge issues an order to show cause

111
Q

An appellate court may hear an appeal from a district court order that grants or denies class action certification. If the appellate court permits the appeal, the district court proceedings

A

are stayed pending the appeal only when ordered by the district court OR the appellate court

112
Q

If the clause specifies a federal forum, most circuit courts

A

treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching

(Note: From S. Ct - forum selection clauses should be given “controlling weight in all but the most exceptional cases)

113
Q

If a plaintiff could easily have joined in the earlier action, a trial judge may

A

not allow use of offensive collateral estoppel (issue preclusion)

114
Q

Individuals and organizations in foreign countries can be served with process by

A

any internationally agreed method of service that is reasonably calculated to give notice (if does not exist, certified mail is OK)

115
Q

Intervention as of right arises when

A

(1) Nonparty has an interest in the subject matter of the action
(2) The action may affect their interest, and
(3) The nonparty’s interest is not adequately represented by the existing parties

116
Q

Permissive intervention is allowed if

A

(1) a non-party is granted a conditional right under a federal statute, or
(2) non-party has a claim or defense related to the original cause of action

117
Q

If a federal court rules that the amount of damages awarded was inadequate, it may order a new trial but may not

A

impose an increase in the amount of damages (i.e., additur) (e.g. offer the D the chance to pay an increased amount to avoid a new trial)

NOTE: ALL damages must come from a JURY

118
Q

The right to a jury trial is given for

A

legal claims (involving monetary remedies) but NOT equitable claims (involving injunctive relief)

119
Q

Once the 4 requirements for a Class Action are met, the class must still be one of three types of class actions:

A

(1) Prejudicial risk (separate actions would create a risk of inconsistent decisions)
(2) Common question (of law or fact predominates and class action is best method)
(3) Final equitable relief

120
Q

A party cannot file a motion for sanctions until

A

21 days after serving that motion on the alleged violator (Safe-Harbor rule gives a violator time to correct the violation)

121
Q

Types of Jury Verdicts

A

General, Special, General Verdict with Special interrogatories

122
Q

If the judge selects a general verdict with special interrogatories and the jury’s answers are inconsistent with the verdict, the judge must

A

(1) order a new trial
(2) direct the jury to further consider its answers and verdict, OR
(3) Disregard the jury’s verdict and enter a judgement consistent with the answers

123
Q

Under the Federal Tort Claims act, venue is proper only in

A

the judicial district where the plaintiff resides OR where the act or omission complained of occurred

124
Q

Foreign governments may be sued

A

(1) where substantial events occurred or property is located, OR
(2) Federal district court of Washington DC

125
Q

A party may make a request for jury instructions after the close of evidence if

A

(1) it concerns issues that could not reasonably have been anticipated by the deadline, or
(2) with the court’s permission

126
Q

Special venue rules apply when an officer or employee is sued in their official capacity or under color of legal authority, meaning venue is proper where

A

(1) any defendant resides
(2) a substantial portion of the events giving rise to the suit occurred, or
(3) where the plaintiff resides if no real property is involved

127
Q

In an action involving multiple plaintiffs or defendants, the court may consider them as a

A

single party entitled to 3 preemptory challenges OR grant more than 3 peremptory challenges and permit them to be exercised separately or jointly

128
Q

Forum non Conveniens allows a court to

A

dismiss or stay a case, but not TRANSFER

Note: Done if a foreign court / alternate court SYSTEM is BETTER SUITED to hear the case

129
Q

When a jury’s answers and verdict are inconsistent, the judge must

A

(1) order a new trial,
(2) direct the jury to further consider its answers and verdict (re-submit case to the jury), or
(3) disregard the jury’s verdict and enter a judgement consistent with the answers

130
Q

A party can file a motion to alter or amend a final judgement (e.g. summary judgment) within

A

28 days after entry of that judgment

Can be based on several grounds including:
(1) intervening change in controlling law,
(2) judgement based on manifest error of law or fact,
(3) necessary to prevent manifest injustice,
(4) discovery of new evidence that was unavailable at trial

131
Q

Only defendants listed in the plaintiff’s complaint have the power to remove a case from state to federal court, meaning

A

a party joined to the suit through a counter-claim is not considered a defendant for removal purposes

132
Q

A federal court sitting in diversity generally must apply state substantive law, unless there is a uniquely federal interest in which

A

the court would then apply federal common law if the state law significantly conflicts with federal common law

133
Q

A legal representative of a decedent’s estate will be deemed

A

a citizen of the same state as the decedent

134
Q

In granting a new trial, the court must

A

specify the reasons in its order

135
Q

Allegations of fraud must be pleaded with

A

particularity

136
Q

In determining the claim-preclusive effect of a prior federal judgment in an action based on diversity jurisdiction, federal common law requires that

A

the law of the state in which the federal court rendered its judgment be applied, unless the state law is incompatible with federal interests

137
Q

A party must first file a motion to compel disclosure of relevant discovery documents which otherwise automatically must be disclosed before it can

A

obtain sanctions under Rule 37

138
Q

A TRO is not an appealable interlocutory order unless it is

A

extended beyond there period permitted (generally 14 days)

139
Q

If the original claim is based in Federal Question, any additional non-federal claims must

A

satisfy diversity or arise from the same case or controversy to meet supplemental jurisdiction

140
Q

If a pleading contains an insufficient defense, a party must

A

move to strike the defense from the pleading either before responding to the pleading or, if a responsive pleading is not permitted, within 21 days after being served with the pleading

141
Q

When a defendant files a motion to dismiss for failure to state a claim upon which relief can be granted and attaches materials outside the pleadings to the motion, the court must

A

treat the motion as a summary judgment motion if the court considers such materials in reaching its decision on the motion

(compare with the normal - courts considering a dismissal for failure to state a claim upon which relief can be granted may only consider the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice)

142
Q

Defensive non-mutual collateral estoppel allows

A

A new non-party defendant to assert a prior judgement a against P who lost original case

143
Q

Offensive non-mutual collateral estoppel allows

A

A new non-party plaintiff to assert a prior judgement against a D who lost original case

Note: Determined based on fairness to D (e.g. did P have opportunity to join first suit)

144
Q

The court may modify a pre-trial order that formulates a plan for trial only if

A

it is done to prevent manifest injustice (party must object and move to modify)

145
Q

When ruling on the constitutionality of punitive damages, appellate courts apply

A

a de novo standard of review

punitive damages will be excessive if the ratio of punitive to compensatory damages is greater than 9:1

146
Q

In order for a waiver of service to be valid, the wavier must

A

(1) state the name of the court and the date the request was sent,
(2) Contain a copy of the complaint, and
(3) Contain 2 copies of the wavier form and a pre-paid means to return the signed form

147
Q

A preliminary injunction must contain

A

(1) the reasons why it was issued
(2) a reasonable description of the prohibited or commanded acts, and
(3) its specific terms

148
Q

Unincorporated associations (e.g. partnerships, limited liability companies) are domiciled

A

in EVERY state where its partners or members are domiciled

149
Q

With regard to procedure in a diversity action, if a procedural issue is addressed by a valid federal law, such as a statute, then

A

the federal law will be applied, even if a state rule or statute is in conflict

(Note: Class actions can be maintained in federal court despite a state law barring such class actions)

150
Q

A party may file a motion within a reasonable time to obtain relief from a judgement that has

A

(1) been satisfied, released, or discharged
(2) is based on an earlier judgement that has been reversed or vacated, or
(3) will violate equity if applied prospectively

(Note: need not be within 12 months after final judgment)

151
Q

If a party personally appears at a hearing for a default judgement, notice of

A

7 days is required before the hearing

152
Q

A defendant must be served within

A

90 days of the plaintiff filing the complaint

Note: Service cannot be done by the party bringing the suit

153
Q

The collateral-order doctrine allows an immediate appeal from an interlocutory order that

A

(1) conclusively resolves an important issue that
(2) is separate from the merits of the claim and
(3) cannot be effectively reviewed on appeal from a final judgment—e.g., an order denying a claim of governmental immunity.

154
Q

Diversity citizenship does not exist when a suit involves

A

stateless persons - e.g. non-citizens present in the US but citizens of a foreign country, or US citizens domiciled in a foreign country

155
Q

SCOTUS has exclusive authority to hear disputes between

A

two or more states

156
Q

A party may voluntarily dismiss a crossclaim, counterclaim, or third-party claim without a court order by unilaterally filing a notice of dismissal

A

(1) before a responsive pleading is served (e.g. answer) or
(2) if a responsive pleading is not served, before evidence is introduced at a hearing or trial

157
Q

Absent specific personal jurisdiction, a federal court may acquire personal jurisdiction over a defendant when

A

(1) plaintiff asserts a federal law claim
(2) defendant is not subject to PJ in any state court, and
(3) defendant has minimum contacts with the US as a whole

158
Q

After a pleading has been amended, a response is due by

A

the later of the following deadlines:

(1) time remaining to respond to the original pleading (generally within 21 days of service of process) OR
(2) 14 days after service of the amended pleading

159
Q

In “prejudicial risk” and “final equitable relief” class actions, a court may - but is not required to -

A

provide notice to class members (members do not have a right to opt out and file separate suits)

160
Q

Pre-trial disclosures must be made

A

30 days before trial

161
Q

Testimony of an expert witness must be disclosed

A

at least 90 days before date set for trial

162
Q

A remand order is generally not

A

reviewable on appeal or otherwise

Exception: Remand order in a class action if application for review is made to court of appeals within 10 days after entry of order

163
Q

In calculating AiC for diversity cases, punitive damages may

A

be permitted as part of the sum sought

164
Q

Remanding to state court is only allowable if

A

the suit originated in state court (if originates in federal court, remand isn’t possible - must dismiss)

Bar Flashcards (16 decks)

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