CIV PRO Flashcards
If an action involves legal and equitable claims that raise issues of fact common to both. Can Jury and the court decide the claims in what order
Jury decides legal claim first and court decides equitable claim later
Does default judgment constitute issue preclusion
No, the issues must have been actually litigated
SJM based on diversity requirements
AIC more than 75k
Opposing parties are diverse
Can a Fed court hear state law claim when the federal law claim is dismissed
Yes the court may hear the state-law claim if it is so related to the federal claim that they form part of the same case or controversy but not required to hear it
What is the forum defendant rule
prohibits removal when 1) solely diversity jdx and 2) defendant is a citizen of the state in which the case was filed.
How many days a defendant have to file removal
30 days from service of the summons or the receipt of a complaint that sets forth a removable case
When will challenge to PJ be waived
If not made in 1) original answer or 2) an answer amended without the court’s permission within 21 days after the original answer was served
How many days before a defendant needs to respond to waiver of service
at least 30 days after the request was sent if in the U.S. No deadline if no requirement to return a waiver request
When can a venue be transferred
1) where the suit could have been originally brought
2) or consent of all parties
Proper if any D resides, a substantial part of the events happened there, or any D is subject to the court’s PJ
TRO requirement
1) Reason why it was granted
2) reasonable depiction of the prohibited or commanded acts, made without reference to the complaint or another document
3) specific terms
Relation back doctrine if adding a new party
1) same transaction or occurrence
2) new party received notice of the suit within 90 days after the original complaint was filed
3) the new party knew or should have known that the suit would have been brought against it but for a mistake concerning the proper party’s identity
How to challenge an error in jury instructions on appeal
Generally must object at trial, if not, can only be reviewed for plain error.
An appeal will be heard if the appellant shows that an obvious error affected a substantial right and the fairness of judicial proceedings.
When will a voluntary dismissal be permitted
Without prejudice unless previously dismissed federal or state action based on the same claim
1) all the parties sign a stipulation of dismissal
or 2) P can file a notice of dismissal before D serves answer or a motion for summary judgment
If not then need court order
Jury size
At least 6 and no more than 12
Jury verdict
Must be unanimous and returned by at least 6 jurors unless the parties stipulate otherwise
when does Choice of law apply
Choice of law decides which state’s substantive law to apply in a diversity action
What if it is unclear whether an issue is substantive or procedural
If a valid federal law directly addresses the issue and it is procedural and does not modify a substantive right because it regulates the process of raising an affirmative defense- not a a defendant’s right to raise the defense, then federal law governs.
What is Compulsory counterclaim
Same transaction and occurrence
Does not require adding a party over whom the court cannot acquire jurisdiction
Must be asserted in the pending lawsuit or it is waived.
Sanctions for failure to preserve ESI
Motion for Judgment as a matter of law
How to alter jury award
Specific vs General Jdx
What is the proper service of process
What is the two - dismissal rule on voluntary dismissals
When can a federal court hear a probate matter
While federal courts generally do not exercise diversity jurisdiction over probate matters, this restriction is narrowly construed and primarily applies to the probate of a will or the administration of a decedent’s estate.
When can fed court exercise supplemental jurisdiction over state law claim
The court can exercise supplemental jurisdiction over the state contract claim because it arises out of “a common nucleus of operative fact” as the federal claim
Federal court constitutionally can exercise supplemental jurisdiction over a state-law claim if, as is likely in this case, the state-law claim is so related to the federal law claim that the two claims form part of the same case or controversy under Article III of the U.S. Constitution.
What is the requirement for a statutory interpleader action
$500 or more, rather than exceeding $75,000 as otherwise required for a diversity action.
diversity jurisdiction is met if any two adverse claimants are citizens of different states.
What is required for initial disclosures
Among the initial disclosures that a party must make is a computation of each category of damages claimed by the disclosing party, who must also make available for inspection and copying the documents or other evidentiary material on which each computation is based. Generally, a party must make these initial disclosures at or within 14 days after the parties’ Rule 26(f) discovery conference. However, as with many discovery rules, the parties may agree to modify the time in which initial disclosures must be made.
Issue Preclusion vs Claim preclusion
The doctrine of issue preclusion, often called “collateral estoppel,” precludes the re-litigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties. Issue preclusion requires that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action.
Can attorney’s fees be awarded as sanctions?
In a diversity case on a state law claim, the federal court may properly use its inherent power to assess attorney’s fees as a sanction for a defendant’s bad-faith conduct during the litigation, even if the law of the forum state provides that attorney’s fees may not be awarded to a successful party.
Is a claim frivolous if based on future possibly discoveries?
By presenting to the court a pleading, written motion, or other paper, an attorney or unrepresented party certifies that, among other things, to the best of her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
When is venue proper Federal civil action
In general, venue in a federal civil action is proper in only one of the following judicial districts: (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located, or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located.
Do defendants need to agree to improper venue objection?
any defendant may raise the issue of improper venue. All defendants need not join in contesting the plaintiff’s choice of where to bring an action.
Is class member bound by class action judgment
In a class action certified under Rule 23(b)(3), a class member who does not opt out is bound by the judgment. Here, the class action was brought under Rule 23(b)(3) because the court certified the action on the basis that questions of law common to the class members predominated over any questions affecting only individual members. Consequently, the class member was bound by the judgment in the class action lawsuit.
(b) 1 2 has different rules
Will a matter be deemed admitted if no answer
A matter is deemed to be admitted unless the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney. A matter admitted is conclusively established, but only in the pending action; it cannot be used against the party in any other proceeding.
When can a party be relieved from judgement under rule 60(b)
Under Rule 60(b), a court may relieve a party from a final judgment or order for a motion filed, within a reasonable time, and no later than one year following the entry of the judgment or order for mistake, inadvertence, surprise, excusable neglect, newly discovered evidence that could not have been earlier discovered with reasonable diligence, fraud, misrepresentation, or misconduct by an opposing party. Under this rule, both intrinsic fraud, which is fraud relates to a matter tried by the trier of fact, and extrinsic fraud, which is fraud that prevents a person from discovering or enforcing legal rights, can serve as grounds for relief.
Timeline for motion for the court to alter or amend a judgment under Rule 59e
this motion must be made within 28 days of the entry of the judgment.
Rule 60(a)
allows a party to move a court to correct a clerical or other mistake resulting from an oversight or omission whenever one is found in a judgment, order, or other part of the record.
60(d)
a motion to set aside a judgment for fraud on the court is available only for fraud that seriously affects the integrity of the normal process of adjudication, such as bribery of a judge or a juror or the fabrication of evidence by a party in which an attorney is implicated. Mere perjury by a witness does not itself constitute a fraud on the court.
Can a plaintiff initial removal?
No
What parts of the pleading can be stricken and how
If a pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material, then the court, upon motion or upon its own initiative, may order that such defense or material be stricken.
Does motion to strike need to be made before answer
yes
Special damages need to be pled speficically?
Yes, if not motion for more definite statement
Sanctions for noncompliance with pretrial conference or order
District court’s factual findings in a bench trial are reviewed under which standard of error
Sanctions for violating FRCP 11(b)
Claim preclusion v. Issue preclusion
Actually litigated - submitted to the trier of fact, not merely stipulated, conceded, or admitted
Class action certification requirements
Burden of proof for summary judgment
Subject Matter Jurisdiction
Initial Conference timing
Proper venue for suit against federal officer or employee
Appellate standards of review
Motion for summary judgment
Diversity of citizenship involving non citizens
Implied causes of actions for damages
Can fed court fill a gap in a federal statutory scheme
Sovereign immunity
Substantive due process
Dormant commerce clause analysis
Enforcement clause
Remedies for failure to attend oral deposition
Procedural due process burden of persuasion
State-election restrictions
Conditions on government funding
Removal of federal judges
Congress’s taxing power
Deadline to file a notice of appeal
Post trial relief
Class action substantive or procedural?
Motion for more definite statement
Judgment on the pleadings when the pleadings close
Permitted extensions
extraordinary relief from a final judgment
Required joinder of parties
Subsidiary PJ established by Parent PJ?
Special Venue rules
Grounds for new trial
Grounds for relief from a final judgment
Stay of enforcement/execution
Retroactive damages vs. Prospective damages and injunction
Parental right procedural due process
Clear and convincing evidence is better and preponderance of evidence
Assessing the validity of presidential actions
Possession of drug crime
Methods of serving process in foreign country
Article I powers to raise and regulate the US armed forces
Provisional remedies
tTransient or tag jurisdiction
Presidential election process
Effect of judge’s inability to proceed
Rule interpleader vs Statutory interpleader
Voting protections amendments
Appointment clause (timeline)
Entering default judgment
Notice and binding effect of class action suits
Discovery of privileged information
In Rem Jurisdiction
Minor’s service of process
