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Bar Prep > Civ Pro > Flashcards

Civ Pro Flashcards

1
Q

Prelim Injunction

A

1 - likelihood of success on merits

2 - irreperable harm if not injunction

3 - balance of hardships

4 - public policy considerations

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2
Q

Elements of complaint

A

1 - short and plain statement of grounds for court’s SMJ

2 - short and plain statement of claim establishing entitlement to relief

3 - demand for relief

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3
Q

When can party amend pleading?

A

As a matter of right:

1 - within 21 days if no responsive pleading is required; OR

2 - if responsive pleading is required, within 21 days of receiving responsive pleading or 12(b) motion, whichever earlier.

A court should freely give leave to amend when justice so requires

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4
Q

Plaintiff can permissive joinder (as a plaintiff or defendants)

A

1 - same transaction or occurrence; and

2 - common question of law or fact

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5
Q

Permissive Joinder and Diversity Jurisdiction

A

NO party can be joined when it destroys diversity.

However, AIC can be less than 75K when multiple plaintiff’s against single defendant (yes supp juris). This is because P can join only if it is from the same transaction or occurrence, and therefore supp jurisdiction is appropriate

AIC under 75K NOT satisfied when one plaintiff against multiple defendants (no supp jurisdictions). This is because it is the plaintiff seeking to join the defendants. If a P is seeking supp jurisdiction by adding parties, it must separately meet SMJ requirements.

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6
Q

When must an objection to PJ, Venue, insufficient process or service of process occur?

A

1 - pre-answer motion, or if no pre-answer motion,

2 - the answer (or an answer amended as a matter of right)

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7
Q

5 bases for in personam jurisdiction, first three general, fourth one specific, not sure about attachment

A

1 - physical voluntary presence in state (served while in state)

2 - Domicile

3 - Consent (can be via K)

4 - Long-arm statute (specific)

5 - attachment

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8
Q

Compulsory counterclaim

A

Must be plead if:

1 - arises out of same T/O as plaintiff’s claim

2 - it does not require adding another party over whom the court does not have SMJ

Failure to bring? Claim preclusion

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9
Q

Three types of mandatory disclosures

A

1 - initial disclosures

2 - expert witness disclosures (90 days before trial)

3 - pre-trial disclosure (30 days before trial) - includes witnesses to testify. depositions and documents to be used.

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10
Q

When must demand for jury trial be made?

A

Serving the OTHER PARTY Within 14 days of last pleading to which the issue to be tried by the jury (legal issue) was served. Written.

Must also file with court within a reasonable amount of time after service.

Disputes over $20

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11
Q

Default judgement - preclusive effect

A

Has claim preclusion

No issue preclusion (was not litigated)

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12
Q

When must summons and complaint be served?

A

Plaintiff must serve defendant within 90 days of complaint being filed

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13
Q

Removal when multiple defendants

A

All defendants must consent to removal

EXCEPTION: federal question claims, only those defendants against whom the federal question is brought must consent.

have 30 days from receipt of initial pleading

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14
Q

Standard for motion for summary judgment

A

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

In other words, no reasonable jury could find for the non-moving party.

Burden of proof on the moving party. Once prima facie, burden to to show existence of genuine issue of fact shifts to nonmoving party.

Must be made within 30 days after the close of discovery (nonmovant given sufficient time to obtain discovery)

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15
Q

12(b)(6) Motion to Dismiss

A

Should be dismissed if it (1) fails to state a cognizable legal theory that entitles them to relief or (2) fails to allege facts for cognizable claim.

1 - well pleaded facts true (plausible case?)

2 - disregard legal conclusions

3 - resolve all doubts in favor of plaintiff

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16
Q

When can a motion for judgment as a matter of law be made?

A

Before it is submitted to jury (but after nonmovant has presented its case), but after the trial has begun.

If you want to file a renewed motion for judgment as a matter of law, you must file a motion for judgment as a matter of law.

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17
Q

Claim preclusion (res judicata) elements

A

1 - valid and final judgment on the merits

2 - sufficiently identical causes of action; and

3 - sufficiently identical parties

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18
Q

Corporation domicile

A

1 - ALL states in which it is incorporated

2 - THE state in which it has its principal place of business (only one)

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19
Q

Well-pleaded complaint and federal question jurisdiction

A

Only will consider the claims made in plaintiff’s complaint, not anticipated defenses, answers, or counter-claims

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20
Q

Aggregation of Claims

A

One plaintiff, one defendant - aggregate them all baby

One plaintiff, multiple defendants - NO aggregation (unless jointly liable)

Multiple plaintiffs, one defendant - NO aggregation, unless the plaintiff’s are asserting an undivided interest. but supplemental jurisdiction over plaintiff’s claims probably.

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21
Q

federal question scope

A

Express or implied under statute; OR

Federal issue (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress

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22
Q

Counterclaims and AIC requirements

A

Permissive Counterclaims - must separately meet the AIC

Compulsory Counterclaims - need not meet the AIC

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23
Q

Supplemental Jurisdiction and Diversity

A

Counterclaims - cannot bring in party that destroys diversity. However, compulsory need not meet AIC, but permissive must meet AIC

Joinder - addition of plaintiff cannot violate diversity (but not required to satisfy AIC)

Cross-claims - if arises out of same T/O, then no need to meet AIC or diversity

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24
Q

Removal based on Diversity jurisdiction

A

D cannot remove if any of the Ds is a resident of the state in which the action was filed.

Cannot be removed more than 1 year after action commenced

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25
Q

Documents a court can consider for - Motion to Dismiss for failure to state a claim vs. Motion for summary judgment

A

MTD - limited to content of pleadings (complaint and attachments to complaint) and matters of public record

MSJ - sworn materials in the record - depositions, affidavits, etc.

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26
Q

When is supplemental jurisdiction based on diversity NOT allowed

A

If supplemental claim:
1 - destroys diversity

2 - is not over 75K and made (1) by plaintiff, (2) against parties added through joinder, interpleader, intervention, or compulsory joinder

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27
Q

Class action based on diversity jurisdiction

A

Only the named representatives need to be diverse.

At least one P must be over 75K AIC

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28
Q

What can a judge NOT do in granting a judgment as a matter of law (or MSJ)

A

Not evaluate the weight of the evidence

29
Q

Appellate Standards of Review

A
  • Review of a trial court’s factual findings—clearly erroneous
  • Review of legal rulings—de novo
  • Review of discretionary rulings (evidentiary, injunctions)—abuse of discretion
  • Review of a jury verdict—varies among jurisdictions
30
Q

When is removal by defendant prohibited?

A

In (1) an action based on diversity and (2) the defendant is a resident of the state in which the case was filed.

31
Q

For collateral estoppel to apply, who needs to be a party to the first action?

A

It is the party against whom the preclusion is being sought (usually the defendant).

The defendant.

The plaintiff can use offensive collateral estoppel even if not a party to a prior action.

32
Q

domicile for individuals

A

where they reside and intend to remain indefinitely

33
Q

Due Process Requirements for Personal Jurisdiction

A

MINIMUM CONTACTS:
Purposeful Availment - reasonably foreseeable?

Relatedness - relation with contacts and suit (specific vs. general jurisdiction)

FAIRNESS: does not offend traditional notions of fair play and substantial justice.
-interest of forum state in deciding matter
-burden on defendant
-efficiency
-shared interests of the state

34
Q

When is venue appropriate

A

A district in which any defendant resides, if every defendant lives in that state

2 - where a substantial part of the events giving rise to the claim

3 - if neither of the above, any district where defendant is subject to PJ

35
Q

Relation back (new claim and new parties)

A

New Claim
If original claim was timely filed AND the facts giving rise to the new claim were of the same transaction or occurrence, then relate back

New parties
same transaction or occurrence AND defendant received notice of the claim within 90 days of the original complaint being filed AND defendant knew or should have known that it could be brought against them but for a mistake

36
Q

When is a party necessary?

A

1 - Court cannot afford complete relief without party

2- Danger that party would be harmed if not joined

3 - risk of inconsistent judgment

Indispensable is kind of same factors, but focus is on extent and whether P can be given complete relief.

37
Q

When is a party indispensable?

A

1) Extent to which judgment would prejudice the parties in the person’s absence;
2) Extent to which prejudice could be reduced or avoided by protective provisions;
3) Whether a judgment rendered would be adequate; and
4) Whether the plaintiff would have an adequate remedy if action were dismissed for
nonjoinder

38
Q

Work-Product Privilege

A

protects material prepared in anticipation of litigation

NOT discoverable UNLESS
1- information is not reasonably available by other means; AND
2- the other party would be substantially prejudiced if not able to get.

A party can NEVER discover the mental thoughts and opinions about the case

39
Q

Duty to preserve electronic information

A

Once there is anticipation of litigation, must make reasonable efforts to preserve. If violated:

  • instruct jury that they can presume that info is unfavorable
    -they can even dismiss the case
40
Q

Elements for Collateral Estoppel

A

1) Same issue was actually litigated;
2) Final valid judgment on the merits;
3) Issue was essential to the judgment; and
4) The party against whom issue preclusion is asserted must have been a party in the prior
lawsuit or represented in that lawsuit (a successor-in-interest)—must be fair for new
plaintiff to assert same issue (prior law required a mutuality of parties)

In determining claim preclusive effect, use law of state in which original suit was decided.

41
Q

Bulge Rule

A

PJ, IF:

1 - added through impleader (third party practice) or required joinder

2 - served within 100 miles of court

42
Q

Special venue rule for nonresident of the US

A

ANY judicial district

43
Q

When does a losing party need to file a renewed motion for JMOL?

A

Within 28 days of entry of judgment

44
Q

Common issues that are procedural and substantive (Erie)

A

Procedural - jury size (anything in FRCP)

Substantive - Statute of limitations, burden of proof, conflict of law, affirmative defenses

45
Q

Class Action Requirements

A

Numerosity – the class is so numerous that joining all the members as named plaintiffs is impracticable (usually met when there are over 40 members)

Commonality – the class shares common questions of law or fact

Typicality – the named plaintiffs’ claims are typical of the claims of the class

Adequacy – the named plaintiffs will fairly and adequately protect the interests of the class

46
Q

Class Action Fairness Act (CAFA)

A

1 - 100+ plaintiffs
2 - minimal diversity
3 - over $5 million when the claims are aggregated

47
Q

Is the failure to deny allegations as to amount of damages deemed an admission?

A

NO

48
Q

Involuntary vs. voluntary dismissal

A

Involuntary dismissal is an adjudication on the merits, meaning it is dismissal with prejudice.

voluntary dismissal - the first one is usually without prejudice (unless otherwise stated). The second one, however, will be with prejudice (“two-dismissal” rule), even if first is in state court.

49
Q

How man preemptory challenges?

A

Three

unlimited opportunities to strike with cause

50
Q

When is plaintiff required to reply to defendant’s answer?

A

Only in the rare circumstances that a court orders it to do so.

If it does not, then any answer to plaintiff’s complaint will be deemed denied.

If court does order, then a plaintiff’s failure to reply constitutes admission.

51
Q

When is a judgment appealable?

A

If it is a final judgment.

With multiple parties, if judgment is entered against one party, it will only be immediately appealable if the court determines that there is no just reason for delay.

Generally, must be filed within 30 days of entry of judgment.

52
Q

Impleader

A

Defendant is allowed to implead a third party if it might be liable to all or part of the claim by plaintiff against it,

The plaintiff can then assert a third-party claim against the third-party defendant if (1) it rises out of the same transaction or occurrence, and (2) it independently satisfies SMJ.

Must be made within 14 days of original answer OR after this deadline if it obtains leave of court to do so.

53
Q

How to satisfy service of process requirements?

A

Individual -
- deliver personally
- deliver to defendant’s dwelling and leave with a person of suitable age and discretion.

Corporation -
-agent or officer

OR, by following service of process rules in state in which court sits, or state where served

Foreign Country? any manner reasonably calculated to give notice, but not personally if corporation.

CONSTITUTIONAL REQUIREMENT - reasonably calculate to give notice and allow opportunity to reject.

54
Q

Appealability of orders denying class certification

A

Petition to appeal must be filed within 14 days and the appellate court then has discretion whether to permit the appeal.

The district court’s proceedings are stayed pending appeal ONLY IF ordered by the district court or appellate court.

55
Q

Eerie - if it is unclear whether law is procedural or substantive, what is the analysis?

A

Ask if federal law directly addresses the issue? (is there a conflict? If so, then we proceed, if not, then we apply both federal and state law)

If yes, apply federal law if it is arguably procedural and does not affect substantive right.

If no, apply state law if state law is outcome determinative (failure to apply would result in forum shopping or inequitable administration of laws) and there is no countervailing federal policy. If not, apply federal common law.

56
Q

When can clerical mistakes be corrected?

A

A clerical mistake can be corrected on the court’s own initiative or by party’s motion only BEFORE appeal is docketed.

Once appeal is docketed, district court must obtain leave of appellate court before correcting.

57
Q

Change of Venue Rule

A

(1) if original venue is proper
- transfer to another court is proper if venue is allowed in another court originally or other parties consent
-DJ: apply law of transferor state (unless valid forum selection clause)
-FQ: do not apply transferor law

(2) if original venue is improper
-either dismiss case or transfer case to court where venue is proper
-DJ: apply law of transferee state
-FQ: do not apply transferor law

58
Q

Effect of Forum-Selection Clause

A

Forum selection clauses should be upheld in all but the most exceptional circumstances.

Meaning: transferor seeking change in venue to forum selection clause should probably win.

Meaning: if transfer of venue based on forum selection clause, then transferee court law should apply (exception to general rule)

59
Q

Service on corporations

A

must be made to officer, managing officer, or agent authorized by law to receive service

60
Q

Intervention

A

As of right:

-have an interest
-action may affect their interest
-interest not adequately represented

Permissive:
-conditional right under statute; OR
-claim or defense related to original action

61
Q

Remittur and Additur

A

Additur is not premitted in federal court, only remittur

62
Q

General jury verdict with answers

A

If verdict is inconsistent with answers, judge can order new trial, re-instruct jury, or enter judgment in accordance with answers

If verdict and answers are inconsistent with each other, judge can order new trial or re-instruct jury.

63
Q

Federal Torts Claim Act (venue)

A

Venue is proper (1) where the plaintiff resides or (2) where act or omission complained of occurred

64
Q

Waiver of service modified timelines

A

Give D 30 days to respond to waiver request

If so, D need not file answer until 60 days after request was sent

65
Q

Domicile of Legal Representative

A

Same state as the one being represented - testator, minor, incompetent

66
Q

When should a motion for new trial be granted?

A

to prevent miscarriage of justice - if new evidence is discovered that existed at time of trial but was excusably overlooked.

67
Q

Types of Class Action

A

Risk of Prejudice - separate actions create risk (notice optional)

Final Equitable Relief - seeking injunctive relief (notice optional)

Common legal/factual question - common question predominates individual questions (notice required)

68
Q

When must a party respond to an amended pleading?

A

The later of the following:

-14 days form service of amended pleading; OR

-21 days after service of original pleading

Bar Prep (16 decks)

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