Civ Pro 5 - Sheet1 Flashcards
Civil Procedure
How do you determine whether a class action meets the Diversity and AIC requirements for diversity jdx?
Look ONLY to the class rep’s claim:
- Rep Diverse
- Rep’s claim > $75,000
-Special rules for the class action fairness act of 2005
Civil Procedure
What happens when P voluntarily dismiss his case?
P may do so without paying D’s cost IF:
(1) First dismissal
(2) Without prejudice (before answer or motion)
P may have to pay D’s cost other wise
If not 1st dismissal, P must ask for court’s permission
Civil Procedure
In what ways may a claim be dismissed of before trial?
(1) Voluntary dismissal
(2) Default/default judgment
(3) Failure to state a claim (12(b)(6))
(4) Motion on the pleadings
(5) Summary judgment
Civil Procedure
What is the difference between a default and a default judgment?
DEFAULT
- D failed to respond within 21 days of service
- Clerk enters this into docket
DEFAULT JUDGMENT
- D made no response at all
- The claim is for a certain sum of $
- Claimant gives affidavit swearing the amount owed
- D is NOT a minor or incompetent
- Claimant seeks this
Civil Procedure
When will a 12(b)(6), failure to state a claim, be granted?
(1) Judge only looks at the face of the complaint
(2) Judge assumes all P’s allegations as true
(3) Judge determines that P cannot win
-Judge does NOT consider any evidence
Civil Procedure
What is the difference between:
(1) Failure to state a claim (12(b)(6))
(2) Motion on the pleadings
(3) Summary judgment
(1) Failure to state a claim (12(b)(6))
- Motion before answer
- Judge does NOT considers evidence
(2) Motion on the pleadings
- Motion after answer
- Judge does NOT considers evidence
(3) Summary judgment
- Motion after answer
- Judge considers evidence
Civil Procedure
What are the 3 conferences and meetings held before trial?
(1) Rule 26(f) Conference
- 21 days before scheduling conference
- Discuss claims, defenses and settlement
- Must form and submit discovery plan within 14 days of conference
(2) Scheduling Order
- Set cut-offs for joinder, amendments, motions, etc.
(3) Pretrial Conferences
- As needed to encourage settlement
- Final evidence to be proffered
- Final issues to be tried
Civil Procedure
Right to a jury trial in federal court?
- 7th amendment right
- Civil actions in law NOT equity
- Even incidental issues at law require jury
- Must demand w/in 14 days after service of last pleading raising law issues
- 6 to 12 jurors
Civil Procedure
Federal voir dire…
- Unlimited strikes for cause
- 3 peremptory challenges (NOT based on race or gender)
Civil Procedure
What are the 4 trial/post motions that take the case away from the jury?
(1) JMOL
(2) RJMOL
(3) Motion for New Trial
(4) Motion to set aside judgment
Civil Procedure
What are the differences between:
(1) JMOL
(2) RJMOL
(3) Motion for New Trial
(4) Motion to set aside judgment
(1) JMOL
- Request to decide the case as a matter of law
- Brought after opposing side has been heard
- Reasonable people could NOT disagree on the result
- Evidence viewed in light most favorable to non-moving party
(2) RJMOL
- Request to change winner to loser
- Brought w/in 28 days after judgment
- Must be reserved via JMOL motion
- Jury reached verdict no reasonable people could reach
(3) Motion for New Trial
-Request for new trial
-Brought w/in 28 days after judgment
-Must have prejudicial grounds:
*error; new evidence; misconduct; against evidence; +/- damages
(4) Motion to set aside judgment
-Request to set aside judgment
-Brought w/in reasonable time (unless clerical error-unlimited)
-Must have grounds:
*clerical error; mistake; new evidence; judgment is void
Civil Procedure
Appeal of final judgment…
(1) Within 30 days
(2) of Final judgment:
- denial of grant of new trial motion
- grant or denial of RJMOL
- grant of new trial motion not FJ*
Civil Procedure
What is an interlocutory review?
It is the appeal of an issue that is not after a final judgment.
EX: denial of injunction; controlling issues of law; collateral order; denial of certification of class; extraordinary writ
Civil Procedure
Under the ‘present’ traditional basis for asserting PJDX, what is the limitation?
D’s presence cannot be procured through trick or fraud.
Civil Procedure
Personal JDX
(1) Satisfy a statute
- E.g., long-arm statute
(2) Due Process
- Much more important analysis
NOTE:
The analysis is the same for state and federal court
