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Civ Pro Flashcards

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1
Q

Who can remove in a Federal Question case?

A

Defendant can remove to the state they’re from.

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2
Q

Can a defendant remove in a Diversity Case?

A

NO! Defendant CANNOT remove to the state they’re from.

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3
Q

Time frame to remove?

A

30 days - no removal after 1 year

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4
Q

Time allowed to answer a complaint?

A

21 days, unless service is waived - then 60 days

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5
Q

Defendant waives service but then they don’t respond? then what?

A

you must serve them!

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6
Q

What is the Abuse of Discretion standard?

A

Judge has a CHOICE on what to do and makes a judgment call based on his understanding of the law and facts.

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7
Q

What word do you look for that signals Abuse of Discretion?

A

Look for the word “permitted”

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8
Q

When can the clerk enter a default judgment?

A

The party NEVER shows up and the amount is for a sum certain (they know exactly how much money it is or it can be REASONABLY calculated), the defendant who does not appear is not mentally disabled or a minor.
The CLERK must, after Plaintiff submits an affidavit showing how much is owed, enter a default judgment.

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9
Q

When does the judge enter the default judgment?

A

IF DEFENDANT SHOWS UP = JUDGE ENTERS DEFAULT JUDGMENT

IF THEY SHOW UP ONCE = OTHER PARTY MUST SERVE THEM NOTICE OF DEFAULT HEARING AT LEAST 7 DAYS BEFORE THE HEARING!!

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10
Q

How much notice is required for default judgment if the defendant never shows up?

A

No notice required

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11
Q

Motion for Relief

A

Vacate or amend the judgment because a change of circumstances.
The court either dismisses the case, grants you a new trial, or changes the amount of money you have to pay.

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12
Q

How long do you have to file a Motion for Relief for Fraud, Mistake, or Newly Discovered Evidence?

A

1 year to file motion for relief

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13
Q

For what reasons can you file a Motion for a new trial?

A

Jury or Judge error
If the jury verdict is too high, the judge can offer a remittitur and have a new trial if they don’t accept the Judge’s reduced offer

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14
Q

How do you win a renewed motion for judgment as a matter of law?

A

SUBSTANTIAL evidence in the record to support the verdict
or more than a mere scintilla of evidence to support the juries verdict

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15
Q

Any time the Civ Pro question says “personal jurisdiction” in it, what word are you looking for?

A

Minimum contacts

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16
Q

What must the court find to grant a JMOL?

A

The court must find that a reasonable jury would not have a legally sufficient evidentiary basis to find for that party.

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17
Q

Can you extend the time on a renewed JMOL?

A

No - you get 28 days, that’s it!

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18
Q

What is the standard for summary judgment?

A

no geniune dispute of material fact

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19
Q

When can a judgment on the pleadings be filed?

A

Must file the ANSWER to that counterclaim before you can file a judgment on the pleading(s).

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20
Q

What standard of review is waived if you do not object at trial?

A

PLAIN ERROR
Look for answer choice that says “plain error that affected substantial rights”.

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21
Q

How many jurors do you need for a CRIMINAL trial? and how much they rule?

A

There must be at least 6 jurors and they must be UNANIMOUS. NO EXCEPTIONS.

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22
Q

How many jurors do you need for a federal civil trial? Do they have to be unaminous?

A

May have less than 6 members if everyone agrees.
They do not have to be unanimous either.

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23
Q

When does the Seventh Amendment give you a right to a jury trial?

A

Only for legal (cash money) claims.
No right to a jury trial in “equitable” actions.

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24
Q

What is the deadline to file a jury demand?

A

14 days after the defendant files the answer.
If the defendant never files the answer, the clock never starts ticking.

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25
Q

What happens if you have both equitable and legal claims?

A

You must try the legal claims first then the judge will deal with your equitable claims.

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26
Q

Can a final Pre-Trial Order be modified?

A

ONLY to prevent manifest injustice

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27
Q

Can the scheduling order for discovery be modified?

A

Only for good cause

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28
Q

What is impleader?

A

Bringing someone in who is not part of the lawsuit

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29
Q

What is a cross-claim?

A

A party bringing a claim that arises from the same transaction or occurrence against a plaintiff or a defendant ON THE SAME SIDE OF THE LAWSUIT as them.

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30
Q

What is permissive intervention?

A

When a non-party’s claim shares a COMMON question of LAW OR FACT with an existing claim, the nonparty can intervene.

Intelligent Cats Love Fish
Intervention - Common - Law - Fact

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31
Q

What is the Rule 11 - Safe Harbor Provision?

A

Before you move for sanctions, must serve a motion for sanctions on the opposing party and give them 21 days to correct their pleading.
If they withdraw or correct within 21 days = no sanctions.

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32
Q

What if a claim alleges fraud, mistake, or special damages?

A

Then you must show facts supporting EACH ELEMENT OF THE CLAIM!

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33
Q

How do you “secure your right” to a jury demand?

A

File and serve a complaint which includes a jury demand.

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34
Q

Can you file an Amendment and add a new claim when it’s past the statute of limitations?

A

You can amend if it’s related to the same FACTS.

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35
Q

When can you amend a pleading and add a new party?

A

When there is a mistake of identity
and the other party actually gets served within the Statute of Limitations period

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36
Q

Look for a TRUE mistake of identity - if not it’s a FUTILE AMENDMENT.

A

If the person was actually mentioned in the complaint & chose not to file suit against him originally - the amendment will be FUTILE.

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37
Q

A TRO expires in 14 days or unless you show good cause to extend this ONLY ONCE up to 28 days

A

If extended past 28 days, it is treated as a preliminary injunction and becomes immediately appealable.

38
Q

TRO requirements

A

(1) State reasons why it was issued, (2) State its terms specifically, and (3) Describe in reasonable detail the acts restrained

39
Q

How do you serve an individual?

A

SERVE however State law allows,
Someone’s AGENT,
Service the actual INDIVIDUAL themselves,
Serve to the individual’s DWELLING by leaving the complaint with someone of SUITABLE AGE AND DISCRETION!!! (suitable age is generally 14)

40
Q

How is the defendant allowed to bring in NEW FRIENDS through impleader or as necessary parties?

A

100 mile bulge rule

41
Q

Waiver of Motion to Dismiss that must be raised RIGHT AWAY or are waived…

A

Personal jurisdiction
Improper Venue
Process is insufficient
Process service is insufficient
(Planets Vanish Past Pluto)

42
Q

Motion to Dismiss for lack of SMJ can be asserted ____

A

ANY TIME

43
Q

If the defendant is using supplemental jurisdiction to implead someone (bring in a new party and say “if I am liable, you owe me money”) what happens to diversity?

A

They are allowed to DESTROY diversity

44
Q

Motion to Dismiss for failure to join and failure to state a claim can be asserted ______

A

BEFORE TRIAL BEGINS

45
Q

The federal court MAY dismiss a supplemental claim if all other original jurisdiction claims are dismissed.

A

MAY, not MUST

46
Q

Final Judgment Rule

A

If more than one claim, you can appeal a partial judgment on just one claim if Judge says there is NO just reason for delay.

47
Q

De Novo standard

A

Review with fresh eyes.

48
Q

Findings of Fact by Jury or Judge

A

Clearly erroneous standard, the hardest standard to meet

49
Q

When is the clearly erroneous standard used?

A

Habeus proceedings, citizenship naturalization proceedings, copyright appeals, post-trial hearings for attorney’s fees

50
Q

Are general verdicts precluded? (on the MBE)

A

NO ISSUE PRECLUSION

51
Q

Offensive issue preclusion

A

Someone “waiting” for a parties litigation to be over, so they can jump in and USE a favorable issue against the other side

52
Q

Do witnesses have to be disclosed through initial disclosures?

A

must disclose potential SUPPORTING witnesses

53
Q

When is work-product admissible?

A

need a showing of undue hardship.

54
Q

Erie Analysis

A

1: Federal or state law? is it substantive or procedural?

#2: who wins? FRCP or state?
#3: which state’s law are we talking about here?

55
Q

What power does the federal government have?

A

LIMITED power - All power not given to the federal government is left to the states.

56
Q

What law do federal courts use for procedural issues?

A

federal law

57
Q

When does state substantive law apply?

A

applies to the claim itself and the rights of the parties

58
Q

Examples of procedural issues

A

Pleadings,
Discovery,
Service of process,
Sanctions,
Joinder,
Appeal filing rules,
Automatic stays on judgments,
Order of how a trial goes,
Enforcement of forum selection clauses,
Judge and jury instructions

59
Q

What are substantive issues?

A

Any law that can change the outcome of litigation
Elements of a claim,
Defenses,
Standards of care,
Remedies

60
Q

Statute of Limitations ARE outcome determinative, what law applies?

A

State substantive law must be used.

61
Q

Where does the 7th Amendment apply?

A

Federal courts only - Right to a jury trial where amount in controversy exceeds $20

62
Q

If money damages are involved - you are allowed to have a jury, what is the exception?

A

Occurs in cases where there is a claim for restitution of a benefit unfairly kept by the defendant (the best example is a suit for backpay)
Restitution is an equitable remedy

63
Q

When it comes to cases where nobody is seeking money (usually injunctions) there is no jury trial guaranteed (these are called equity cases) - what are the two exceptions?

A

(1) Replevin (the recovery of personal property) OR
(2) Ejectment (the recovery of real property, usually in landlord-tenant disputes)

You will get a jury trial! Even though it’s not directly about money

64
Q

Is there a right to a jury trial in state court?

A

The federal constitution does NOT guarantee a right to a jury trial in state civil cases in the constitution.

In criminal cases, both the 6th and the 14th amendment provide a right to a jury trial in state felony or serious cases (a case with a jail sentence of imprisonment of more than 6 months).

65
Q

Time frame to demand a jury trial?

A

You must demand a jury trial no later than 14 days after the answer is filed.

66
Q

Can the defendant request a jury trial?

A

If the plaintiff doesn’t raise a jury demand in their complaint… the defendant can raise it in their answer.

67
Q

If you amend a pleading, you do not get 14 additional days to file your demand, UNLESS

A

You add in new issues, THEN you get 14 MORE days to demand trial on the new issues that you added when you amended the complaint, BUT not the old issues

68
Q

Aggregation 1Pl + 1Def

A

Pl may add up claims (even if they are unrelated) to get to 75K+ threshold

69
Q

Aggregation 1Pl + 1Def, 2Def

A

1Pl CANNOT aggregate their claims to meet 75K+ against multiple Defs unless they are jointly liable to the Pl.

70
Q

Aggregation 2 or more Pls cannot aggregate their claim UNLESS

A

They are seeking to enforce a right of which they have a common or undivided interest

71
Q

All aliens are considered of the same state.

A

Two aliens that cannot sue each other in federal court in the U.S. under diversity jurisdiction (because they are considered from the same state)

72
Q

Permanent aliens

A

Treated like any other U.S. citizen

73
Q

When does a federal court have jurisdiction over class actions?

A

1) The total amount claimed by all Pl’s MUST exceed 5 million.
2) Must be minimum diversity

74
Q

Removal with multiple defendants

A

No REMOVAL if ANY defendant is a citizen of where the plaintiff brings the lawsuit

75
Q

Preliminary injunctions last until the end of trial

A

always require notice to the other side and a hearing

76
Q

Temporary restraining orders (TRO) are short term

A

TROs can be issued w/o notice or a hearing under certain circumstances

77
Q

Amendment of Pleading by Defendant

A

If you are the Def, and your answer “closes the pleadings” - meaning no response is allowed to it, you may answer without anyone’s permission within 21 days of serving it.

78
Q

Relation back is allowed when the SOL has passed in two scenarios

A

1) New claim - same transaction & occurrence as original claim
2) New defendant - new party gets notice within 90 days of original lawsuit, new party was part of the same occurrence as the original claim, new party understands that BUT FOR a mistake, they would have been named originally.

79
Q

Initial Disclosures - only required to disclose supporting information (Due 14 days after discovery conference)

A

Identity of people “likely to have discoverable information” and that party may use to support its claims or defenses
Documents that a party may use to support their claims or defenses
Computation of damages
Insurance information

80
Q

Testifying Expert Disclosures (90 days before trial)

A

Names, reports, bases of opinion, compensation, and expert qualifications.
Note: If they’re just responding to another expert… only 30 days notice needed

81
Q

Pre-trial disclosures (30 days before trial)

A

Witnesses, documents, exhibits and depositions to be used at trial
Note: The other side may object within 14 days after receiving these disclosures.

82
Q

Can’t serve discovery until you meet with the other side & have discovery conference

A

Ex. Can’t serve a complaint immediately along with interrogatories.

83
Q

Joinder of claims

A

A party bringing a claim can bring any claim as long as the claims have INDEPENDENT bases of SMJ

84
Q

Are joint tortfeasors necessary required parties?

A

No

85
Q

What is a counterclaim?

A

an offensive claim filed against someone else, filed in response to a claim filed against you.

86
Q

If a defendant files a motion to dismiss and it’s granted BEFORE defendant files their answer, then the defendant can file a separate related claim against the plaintiff in a new action.

A

It is not waived because defendant never officially answered, so they don’t lose their logically related compulsive counterclaim

87
Q

what are unrelated counterclaims?

A

permissive counterclaims (do not require the same transaction or occurrence)

88
Q

Counterclaims must have SMJ (need to be supported by FQ or by diversity jurisdiction)

A

Supplemental jurisdiction requires the same transaction or occurrence

89
Q

How long does the defendant have to implead?

A

Only 14 days after serving their answer. After that, need the courts permission

90
Q

Parties joined under impleader can be served with process out of state, regardless of state law

A

within 100 miles of the courthouse in which the case is pending

91
Q
A

MBE (9 decks)

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