Civ Pro Flashcards
1
Q
Requests for admission
A
allow a party to ask another party to admit the truth about matters within the scope of discovery relatingt to facts, the appliction of law to facts, opinions about either, or the genuineness of documents.
a party that fails to admit a matter later proven true must generally pay the reasonable expenses incurred in making that proof unless four conds apply (court sustained prior objection, admission sought was of no substanital importance, responsind party rasonably believed that it would prevail on the matter, another good reason existed)
2
Q
Claim preclusion
A
a valid final judgment on the merits precludes a party from litigating an indentiical claim against the same party in a second action.
claims are indentical if they
1) arise from the same transaction, occurrence, or series thereof, and
2) could’ve been raised in the first action
3
Q
if a valid final judgment on the merits was entered in fed court, then the court presiding over a subequent action involving the same claim and parties must apply…
A
federal law
4
Q
if a valid final judgment on the merits was entered in state court, then the court presiding over a subequent action involving the same claim and parties must apply…
A
that state’s claim preclusion law to the second action
5
Q
when considering a motion for judgment as a matter of law (JMOL), a court must
A
1) view the evidence and draw all reasonable inferences in favor of non-movant
2) disregard evidence favorable to movant that jury isnt required to believe,
3) not consider the credibility of the witness/eval the weight of the evid
6
Q
FRCP 11(b)(2) Sanctions on a client
A
a court cannot impose monetary sanctions on a party represented by an atty for a violation unless there is evidence that the client lied to atty
7
Q
a court may order measures no greater than necessary to cure prejudice caused by a party’s failure to preserve ESI that
A
1) shouldve been preserved in the anticipation or conduct of litigation,
2) is lost bc the party failed to take reasonable steps to preserve it, and
3) cannot be replaced or restored
8
Q
tag jurisidiction
A
a fed court obtains personal juris over a D served w/ process while voluntarily present in forum state unless D was
(1) fraud/forcefully brought into the state to be served, or
(2) present in state to attend unrelated judicial proceedings
9
Q
Court polling jurors
A
a court must on party’s request or on its own, poll jurors invidivudally after a verdict is returned but before jury is discharged. if poll reveals verdict is not unanimous, court can (1) direct jury to delierate further, or (2) order new trial
10
Q
FRCP 4(e)(2) - delivery of service
A
Service of process can be made by:
- delivering notice and copy of summons to indvidual personally,
- leaving a copy of each at the individual’s dwelling with someone of suitable age and discretion who resides there,
- delivering a copy of each to an agent authorized by appointment or by law to recieve service of process
11
Q
a p may ask a d to waive formal service process by
A
sending the complaint, two copies of waiver form, and prepaid means of returning the form
if D waives formal service then D has 60 days to answer the complaint and if it doesnt have to pay formal service of process
12
Q
Process must be served within…
A
90 days of filing a complaint.
court must extend service time if P shows good cause that service was delayed due to matters outside of P’s control
13
Q
collateral order doctrine
A
Exception to final judgment rule
allows an interlocutory appeal when a district court
*conclusively resolves an important issue,
*that issue is seperate from the merits of the underlying claim and
*that order is effectively un-revivable on appeal from final judgment
14
Q
when no internationally agreed method of service or applicable federal law exists, an indivdual D in a foreign country can be served…
A
(1) following foregin country’s rules for service,
(2) as the foreign country arects in response to letter rogatory, or
3) by delivering process to D personally or by mail - if permitted by foreign country
15
Q
omnibus motion rule
A
requires that all FRCP 12 defenses (lack of PJ, improper venue, or insufficient service) be consolidated in a single pre-answer motion.
defenses are considered waived if omitted
16
Q
Service by publication is only permitted when
A
D or D’s address is unknown or unobtainable
17
Q
FRCP 24(a) - intervention of right
A
court must permit intervention if movant
1) has an interest related to the property or transaction that’s the subject of the action,
2) dispostion without hte movant may impair or impede the movant’s ability to protect its interest, and
3) its interest is not adequately represented by exisiting parties
18
Q
FRCP 24 - permissive intervention
A
court may permit intervention when either:
1) nonparty’s claim/defense shares common question of law or fact w/ main action, or
2) fed statute gives conditional right to interevene
court must consider whether intervention will unduly delay or prejudice adjudication of original parties’ rights
19
Q
Who can remove a case to federal court?
A
Only Ds listed in P’s complaint have the power to remove a case from state to fed court.
a party joined to the action through a counterlcaim is not considered a D for removal purposes
20
Q
Amended pleading
A
used to set forht a transsaction, occurrence, or event that arose before the pleading to be amended was filed
can be amended within 21 days after service
21
Q
Supplemental pleading
A
is used to set forth a transaction, occurence or event that arose after the pleading to be supplemental was filed
22
Q
Initial conference for discovery
A
parties must hold an intial conference to plan for discovery.
conference must be held ASAP and at least 21 days before a scheduling conference w/ the judge is held/judge’s scheduling order is due
23
Q
Requirements for complaint
A
must contain a short and plain statement of the claim showing that the P is entitled to relief.
when a complaint alleges mistake, fraud, or a mental condition, (1) D’s intent or other mental condition may be alleged generally but (2) the circumstnaces giving rise to the claim msut be stated with particularity
24
Q
SCOTUS has no jurisdiction to review a state court decision based on…
A
adequate state law ground that completely resolves the case independent of federal law
25
FRCP 50 says a party can can challenge the sufficency of the evidence supporting a jury verdict on appeal if it...
moved for JMOL before case was submitted to a jury, and
filed a renewed motion for JMOL within 28 days after the entry of final judgment that could have included an alternative or joint request for new trial
26
Rule 13(g) - cross claim against co-party
a claim asserted by one party against a coparty (D v. D or P v.P)
must arise out of the same transaction or occurence as the intial claim
27
For rule 13(g), to determine whether 2 claims arise out of the same transaction or occurence courts look at
1. whether the issue of fact and law in Ps claim and Ds cross claim are essentially the same
2. whether the same evidence would support or refute Ps claim and Ds cross claim
3. whether there's a logical relationship between P's claim and D's cross claim, and
4. whether res judicatta would bar a subseequent suit on the cross claim
28
Supplemental juris
permits fed district courts that have original jurisidction to assert supplemental jurisidction over all the other claims that are so related to claims in the action within such original jurisidction that they form part of the same case or controversey - a common nucleus of operative fact
29
Younger abstention doctrine
requires a federal court to abstain when a declaratory judgment or injunction by that court would interefer with a pending state crim or civil proceeding that
(1) involves an important state interest, and
(2) provides an adequate opporunity to litigate
30
FRCP 54(b) final judgment rule
a decision that fully resolves a dispute on the merits and leaves nothing for the court to do but enforce the judgment
54(b) allows court to designate their resolutions of particular claims as immediately appealable.
court may direct entry of final judgment if court expressly determines there's no just reason for the delay. permits an appeal to be taken from final decision(s) without waiting for final decision to be rendered
31
Mandamus or prohibition
Exception to final judgment rule
avail to allow appellate court to confine trial judges to the lawful exercise of their jurisidction or to compel them to act if they have abdicated their jurisidctionary/obligation
32
pendent appellate jurisidction
exception to final judgment rule
designed to prevent parties from interrupting litigation by pursuing piecemeal appeals.
appeal decisions and review others alongwith it
33
party asserting issue preclusion/collateral estoppel precludes re-litigation of factual issue must establish that
1) previous determination was necessary to the decision;
2) issues must be identical;
3) issue was actually decided in a decision that was final, valid, and on the merits;
4) the party being precluded from re-litigating the issue was adeqautely represented in the previous action,
5) issues need to be actually raised and litigated
issues that were actually litigated and decided and essential to the judgment in a previous case cannot be litigated against
34
issue preclusion can be asserted in two different forms
parties or non-parties to the first action against parites to the first action either
(1) defensively when used by a D in the 2nd action to avoid an issue, (shield for D) or
(2) offensively when used by a P in 2nd action to establish an issue (sword for P)
35
General jurisidiction
D's affiliations with the state are so continuous and systematic as to render it essentially at home in the forum state
affiliations that render corporate D at home = PPOB or place of incorporation
individual D = domiciled there
36
specific jurisidiction
1) P's claim arises from or is closely related to the D's minimum contacts with the forum state (purposeful availement), and
2) the exercise of juris complies with notions of fair play and substantial justice
can d reasonably anticipate being hauled into court there?
37
personal jurisdiction
A fed court can exercise personal jurisdiction over a D who is subject to the
jurisdiction of the courts of the state in which the federal court sits.
can be specific or general
38
28 USC Section 1331
Federal question jurisdiction
allows a case to be heard in federal court if it is a claim based on constitution, fed law, or fed treaty
39
28 USC Section 1332
Diversity jurisdiction
Allows a federal court to have jurisdiction over a state claim if the parties are diverse from one another and the amount in controversey in good faith exceeds $75,000.
diversity for indvidiuals = domicile (presence and intent to remain)
diversity for corporations = place of incorporation or principal place of business (nerve center of the corp - where the corp's officers direct, control, and cooridate the corp's activities)
diversity of citizenship is determined as of the time the suit is filed *
40
amount in controversy for diversity juris can also be determined when a p requests equitable relief which is calculated by the larger of the following
the cost to the D if forced to comply w/ the requested equitable relief (lost sales), or
the worth to the p if the requested equitable relief is granted (expected profits)
41
FRCP 18 - allows a party to join as many claims...
as it has against an opposing party in fed court even if claims arise out of diff facts or occurrences - provided SM juris is satisfied
42
TROs
can be issued without notice to the adverse party, but only in limited circumstances and
only for a limited time.
To secure a TRO without notice, the nonprofit would need to submit an
affidavit containing specific facts that demonstrate a risk of “immediate and irreparable injury” if
a permit is issued.
In deciding whether to grant a TRO, courts will also consider the same factors that are relevant in deciding whether to grant a preliminary injunction (e.g. the moving party’s likelihood of success on the merits, the balance of hardships, and the public interest).
The TRO would last only long enough for the court to consider and resolve a request by the nonprofit for a preliminary injunction, but no longer than 14 days (unless the court extends it for good cause or the adverse party consents to an extension). In addition, bond is required.
43
FRCP 60(b)(5) - relief from final judgment
a party may file a motion within a reasonable time to obtain relief from a judgment that
1) has been satisifed, released or discharged
2) is based on an earlier judgment that's be reversed or vacated, or
3) will not equity if applied prospectively
44
FRCP 60(b) - relief from final judgment that must be filed w/in 1 year
mistake, inadvertance, surprise, excusable neglect,
newly disocvered evidenced,
fraud, misrep, misconduct
45
SCOTUS has original jurisdiction in
1) cases involving an abmassador public minister, or consul, and
2) caes in which a state is a party.
in all other cases, SCOTUS appellate juris requires a lower court decision
46
An organization has standing to sue on its members behalf when
1) the members themselves would have standing,
2) the interests at stake relate to the org's purpose, and
3) if damages are sought suit does not require member participation
47
a party can generally present evid to support an adverse inference against the opposing party including evdience on the intentional destruction of reelvant evid.
in civil vases only, a party can ask the jury to draw an adverse infernece from the opposing party's invocation of the priv against self incrim
48
In a removal action, a party preserves its right to a jury trial by
1) demanding a jury in state court before removal, or
2) serving a jury trial demand within 14 days after filing or being served with the notice of removal so long as all necessary pleadings had been served before removal
49
a default judgment may be etnered by the clerk unless
1) D has appeared,
2) D is legally incompetent or a minor,
3) Ps claim is not for a sum certain or a sum that can be made certain by a calculation, or
4) the P failed to include an affidavit establishing the amount due
50
Under separation of powers doctrine
each branch of gov has seperate and distinct powers that generally cannot be exercised by another branch.
congress and the judiciary cannot interfere w/ Pres's plenary (absolute) power to grant reprives and pardons
51
Implied causes of action (bivens actions) permit recover of damages against fed officials for...
(1) a 4A claim for unlawful earch and seizure,
(2) a 5A claim for sex baesd employment discrim, and
(3) 8A for failure to provide medical trxt
52
FRCP 55 says
P must serve D w/ written notice of the default judgment application at least 7 days before a hearing on the matter
53
a party's inital disclosure must include...
all documents, electronic storage information, and taingible things in party's possession that the party may use to support its claim or defenses - not those of the opposing party
54
class action requirements
1) commonality,
2) adequacy,
3) numerosity,
4) typicality, and
5) show superiority and that common questions predominate
55
Under class action fairness act a federal district court can exercise diversity juris over a class action if.
1) the matter in controversey exceeds the sum or value of $5 million, and
2) any members of a class of Ps is a citizen of a state different from any D (minimal diversity)
56
Standing
P must show
(1) an injury in fact (concrete and particularized harm),
(2) fairly traceable to the challenged conduct of the defendant, and
(3) likely to be redressed by a favorable judicial decision.
57
a default judgment can be entered...
21 days after D is served w/ process
58
the right to challenge subject matter juris
is never waived and can be raised at any point by the parites or on courts own intiative
59
Pre-trial disclosures do not apply to
impeachment evidence
60
pretrial disclosures must include
the name address, and phone number of each W,
deposition testimony that will be used at trial, and
all documents and exhibits
61
Court's discretionary decisions are reivewed for
abuse of discretion
(creation of jury instructions)
62
court's conclusions of law are reviewed
de novo
(contents of jury instructions)
63
a court should enter judgment on the pleadings when the movant shows that
1) there is no genuine issue of material fact, and
2) the movant's entitled to judgment as a matter of law
64
Rule 11 sanctions - notice to opposing party
party must serve on opposing party a motion describing conduct that allegedely violated Rule 11.
must be given 21 days to correct/withdraw the motion with the issue. if 21 days passes and not corrected, then motion may be filed w/ the court
65
Rule 11(b)(2) requires an attorney to
investigate statutory provisions before filing an answer
66
Rule 11 sanctions the court may impose
“Whether a violation has occurred and what sanctions, if any, to impose for a violation are
matters committed to the discretion of the trial court . . .”
Sanctions should be “limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated
Sanctions can be monetary or nonmonetary. If the sanctions are monetary, they can include an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.”
nonmonetary sanctions would be “striking the offending paper; issuing an admonition, reprimand, or censure; requiring participation in seminars or other educational programs, or referring the matter to disciplinary authorities
A non-exhaustive list of factors the court may consider in deciding what sanctions, if any, should be imposed for a violation includes whether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended to injure; what effect it had on the litigation process in time or expense; whether the responsible person is trained in the law; what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; what amount is needed to deter similar activity by other litigants.
67
in determining appropriate sanctions for spoliation, courts consider
the level of culpability of the spoliating party and the degree of prejudice the loss of evid has caused the other party
impose severe sanctions only when there is evid of bad faith in the form of an intentional effort to hide information
68
Punitive damages almost always are unconstitutional if the ratio of punitive damages to compensatory damages is...
greater than 9 to 1.
69
FRCP 20(a)(2) - permissive joinder
Persons may be joined in one action as Ds if
1) any right to relief is asserted against htem jointly, severally, or claims arise out of same occurence; and
2) any question of law or fact common to all Ds will arise in the action
some courts will ask whether Ps claims against D are logically related + would promote judicial economy to be heard together
70
two persons may bring their separate claims in a single lawsuit in fed court if
1) those claims arise out of the same occurence, and
2) any question of law or fact common to all ps will arise in the action
71
FRCP 14(a)(1)
a defending party may as a 3rd party P, serve a summons and complaint on a non-party who is or may be liable to it for all or part of the claim against it
72
two requirements for a D to implead a nonparty
1) D must allege that non party is or may be liable to D,
2) nonparty's liablity to D must be for all or part of the claim against the D
must be filed within 14 days of serving the answer
73
FRCP 4(h) - service upon a corp may be effected within a US judicial district by...
follwoing state law for serving a summon in an action brought in courts of general jurisidction in the where the district court is located or where service is made or by delivering a copy of the summons and complaint to an officer, a managing or general agent
74
FRCP 19(a)(1) - required joinder
a person is required party to a fed action and must be joined (if joinder is feasible) if any of the following is true:
1) in that person's absence, the court cannot accord complete relief among existing parties; or
2) that person claiming an interset relating to the subject of the action and is so situated that disposing of the action in the person's absence may
- as a partical matter impair or impede the persons ability to protect the interest; or
- leave an existing party subject to a substatinal risk of incurring double, multiple, or otherwise inconsistent obligation because of that interest
75
A partnership or LLC/LLP's domicile is based on
the citizenship of EACH of its members
76
Rule 19 factors
MEE jul 22 q5
77
A court shall grant summary judgment (FRCP 56(a)) if the movant shows that
there is no genuine disput as to any material fact and the movant is entitled to judgment as a matter of law
then burden moves to non-movant to produce evid to show that there is a genuine issue of material fact for trial.
mot is looked at in the light most favorable to the non-moving party
78
FRCP 4(k) - territorial limits of effective service of process for fedearl district courts
(1)(A) service is summary estalibhses PJ over D who is subject to juris of court of general juris in a state where district court is located
(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the US not more than 100 miles from where the summons was issued
79
A general verdict with answers requires that
the jury decide which party should prevail and provide answers to Qs on each factual issue.
if the verdict and answers are inconsistent the judge must (1) order a new trial, (2) direct jury to further consider, or (3) enter judgment consistent with answers
80
interrogatories cannot be served on
non parties
81
A defendant may remove a civil action from state court to federal court if the action is
a type over which the district courts of the US have original jurisdiction
82
Removal is automatic once
state court has notice of removal
83
Forum defendant rule
prohibits removal when (1) supp matter juris arises soley from diversity juris and (2) D is a citizen of the state in which case was filed
rule does not apply if removal is proper when subject matter juris arises from fed Q juris
84
political question doctrine
bars action that require courts to resolve issues concerning diplomatic recongintion of foregin gov. However, courts have power to determine interbranch dipsutes involving foreign affairs when they concern the validity of a fed state law
85
Sanctionable offenses
failure to disclose a witness
86
under FRCP 4(g) a minor/legally incompetent D can only be served w/ process by...
following the service rules of the state where service is made
87
general rule for conflict of law issue regarding real property
the applicable law should be determined by COL rules of the state where hte property is located
88
at a final pre-trial conference, a fedearl court judge will issue final pre-trial order with plan for trial. it ca be modifiied by the court only to
prevent manifest injustice
89
transient jurisidction
Burnham v. Superior court of CA held that DP clause of 14A generally permits a state court to exericse juris over a D if he is served w/ process while voluntarily present in the forum state
90
28 USC Section 1391(b), venue is appropriate in
1) a jud district in which any D resides, if all Ds are residents of the state in which the district is lcoated,
2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occured, or
3) if there is no district in which an action may otherwise be brought...any jud district in which any D is subject to the court's PJ with respect to such action
91
28 USC §1404(a) - change of venue
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought
transfer under § 1404 may be made only to a district in which the action might originally have been brought
92
normally a judge would allow a plaintiff’s original venue choice to prevail where
the facts are closely divided on the issues of convenience and interest of justice
93
forum selection clause is relevant factor favoring a §1404 change of venue motion
even if clause is unenforceable under applicable state law
94
Rule 11 filing
Every pleading, written motion, or other paper (except for discovery requests and responses)
must be signed by an attorney, or by a party if the party is unrepresented. An attorney’s signature on a pleading “certifies that to the best of the person’s knowledge, information,and belief, formed after an inquiry reasonable under the circumstances”
(1) the pleading is not being presented for an improper purpose . . .;
(2) the . . . legal contentions are warranted by existing law or by a nonfrivolous argument for changing existing law;
(3) 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; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
95
Rule 11 Reasonableness Standard
A lawyer who files an inaccurate pleading is not subject to sanctions if the lawyer acted in good faith after making a pre-filing “inquiry” that was “reasonable under the circumstances.”
Reasonableness is judged as of the time the pleading was submitted, and depends on “such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar.”
96
Stream of commerce is not sufficient basis to exercise jurisdiction over the manufacturer of a product
/
97
Duty to preserve evidence
When litigation is reasonably anticipated, whether or not it has been commenced, potential
litigants in possession of evidence that may be relevant to that litigation
have a duty to preserve that evidence.
98
Sanctions for failing to take steps to preserve evid
forbidding the party that failed to preserve the information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information and letting the jury draw its own inference, or giving the jury instructions to assist in its evaluation of such evidence or argument
shifting of burden of proof on the relevant issue, judgment against the responsible party, adverse inference instruction
99
A counterclaim is compulsory when it
1) arises from the same transaction or occurence as the opposing party's claim, and
2) doesnt require adding another party over whom the court cannot acquired juris, or
3) d will lose the right to bring the claim later
100
Failure to bring a compulsory counterclaim results
D must include in her answer to a complaint any claim that the D has against P that arises out of the transaction that's the subject matter of p's claim
some courts say bars a party from
bringing a later independent action on that claim while others say it's a waiver of that claim - either way failure to asset = barred from asserting claim in future litigatio
101
a permissive counterclaim is
one not arising out of the same transaction or occurence and
may be filed but doesnt have to be filed
102
FRCP 65 - preliminary injunction
may be granted only upon notice to the adverse party, and only if the movant “gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”
The court typically considers four factors for ruling:
(1) the significance of the threat of irreparable harm to the plaintiff if the injunction is not granted,
(2) the balance between this harm and the injury that granting the injunction would inflict on the defendant,
(3) the probability that the plaintiff will succeed on the merits, and
(4) the public interest.
103
work product
any material that is prepared in anticipation of litigation
other party must show substanitial need and undue hardship to get work product
atty's mental impressions are never discoverable
104
When a court should give leave to amend pleadings
Under Rule 15(a)(2), a district court “should freely give leave [to amend] when justice
so requires
injustice = undue delay, bad faith or dilatory motive, repeated failure to cure defects by amendment, undue prejudice to the party opposing the amendment, or futility of
the amendment.
105
FRCP 15(c) - an amended complaint will "related back" to the date of the og complaint if
1) the same occurence is at issue,
2) the new party recieve notice of the suit within 90 days after the og complaint was filed, and
3) the new party knew or should have known that it would've been named but for a mistake about its indentity
106
relation back doctrine allows an amended pleading to assert a new claim after the statute of lims has expired when
1) the applicable statute of lims allows relation back, or
2) the claim arises out of the same conduct or occurrence as the og pleading
107
To challenge an error in jury instruction on appeal, a party generally must have objected to that error at trial. but,
if a party faield to do so, the challenged error can still be reviewed on appeal for plain error (an obvious error that affected a substantial right and the fairness of judicial proceedings)
108
a jury verdict must be...
unanimous and returned by a jury of at least 6 (but not more than 12) jurors unless the parties stipulate otherwise
109
mutual issue preclusion
allows parties from the first action to assert issue preclusion in the second action
110
nonmutual issue preclusion
allows non parties from the first action to assert issue preclusion in the second action
allows a party to invoke collateral estoppel against a party who litigated and lost on an issue in a prior action
111
___ analysis is used when it is unclear if an issue is procedural or substantive and no direct fed law applies
erie
112
under erie, state law applies if
1) it is outcome determiniative - ie, forum shoppoing or inequtiable admiinstration of the laws wuld result if it is not applied, and
2) there is no countervailing fed policy interest
113
state substantive law includes
any choice of law rules that a state court woul apply
elements of claim/defense
statute of lims
burden of proof
114
procedural law includes
filing deadlines,
court rules/procedures,
discovery practices,
rules of evid
115
Klaxon doctrine - a fed court sitting in diversity must apply the choice of law approach
prevailing in the state where it sits
116
a fed court sitting in diversity must generally apply state law to substanitve issues. however, fed common law governs substantive issues in the rare instance when
a uniquely federal interest signifcantly conflicts w/ the operation of state law
117
Following a § 1404 transfer, the transferee court must apply
the same law to the case as would have been applied by the transferor court
118
remittitur
d's request to reduce jury award of excessive damages
if GR then P can chose either 1) reduction in damages or 2) new trial on damagesa
119
additur
p's request to increase jury award of inadequate damages
*never allowed in fed court
120
vol dismissals by p generally are
without prej
exception: if p vol dismisses a case twice, the second dm is w/ prej and p cannot refiled the lawsuit or one that arises out of the same facts
121
choice of law provisions in k
generally law stated in the k will apply unless
1) chosen state has no substantial relationship to the parites or the transaction and there is no other reasonable basis for the parties choice; or
2) application of the law of the chosen state in the determination of the particular issue and whcicjh under the most signficant relationship test would be the state of the applicable law in the absence of an effective choice of law by the parties
122
conflict of law for tort claim
state w/ the most significant relationship to the occurrence and the parties
1) place where injury occurred,
2) place where conduct causing the injury occurred;
3) domicile, residence, nationality, place of incorp, or PPOB, and
4) the place where the relationship between parties is centered (if any)
