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Utah Essay Bar Studies > Civ Pro > Flashcards

Civ Pro Flashcards

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1
Q

Proper Court

A

JDX over persons involved, subject matter, proper venue

Defendant notice of suit and proper law used

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2
Q

PJ

A

Proper JDX over the parties

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3
Q

Ways to get PJ

A

Traditional
General
Specific

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4
Q

Traditional PJ

A

Personal Service
Consent
General Appearance
Domiciled

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5
Q

Personal Service Trad PJ

A

Present in the state when served (except when brought via fraud)

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6
Q

Consent Trad PJ

A

In advance through contract

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7
Q

General Appearance Trad PJ

A 
If negotiates settlement
Appearing to confirm settlement
Seeking ex parte relief
Local agent for service of summons
Signing acknowledgment of service form
Participation before filing motion to quash
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8
Q

Domiciled Trad PJ

A

Physical presence

Subjective intent to remain

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9
Q

General PJ

A

Domiciled for individual
Entity
Systematic and continuous contact with forum OR state of incorporation

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10
Q

Specific PJ Long Arm

A

Reach beyond own borders to assert JDX over nonresident under certain specified situations
If no long-arm, assumed to be in line with Federal rule

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11
Q

Minimum Contacts Long Arm

A

“[S]ufficient minimum contacts with the forum state such that asserting jurisdiction over him does not offend traditional notions of fair play and substantial justice”

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12
Q

Req to Meet Minimum Contacts

A

Purposeful Availment
Relatedness
Foreseeability
Fairness/Reasonableness

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13
Q

Purposeful Availment

A 
Availed himself the benefits and protections:
Presence in forum
Doing business in forum
Stream of commerce
Effects from outside forum
Internet sliding scale
Property
Contracts
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14
Q

Relatedness Minimum Contacts

A

The closer the contact related to claim less contacts need corp
Always at home in state of incorp and principal place of bus and others that render corp at home

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15
Q

Foreseeability Minimum Contacts

A

Reasonably foreseeable to be haled into court

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16
Q

Fairness Reason Minimum Contacts

A

Burden of defendant VS
Forum state’s interest in adjudicating
Plaintiff’s interest in convenient relief
Access to evidence and witnesses
Interstate efficiency
Shared interest in furthering social policy

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17
Q

SMJ

A

Proper JDX over subject matter

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18
Q

Types of SMJ

A

Fed Question

Diversity

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19
Q

Fed Question SMJ

A

I.e. Constitution, federal statutes, treaties
Well-Pleaded Complaint
When the federal law issue is presented in the plaintiff’s complaint only the complaint; not defenses

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20
Q

Exception Cases to Diversity

A

Probate

Domestic Relations

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21
Q

Req of Diversity

A

Complete Diversity

Amount in Controversy

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22
Q

Complete Diversity

A

All Plaintiffs/All Defendants diverse between the v

Where domiciled

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23
Q

Exceptions to Complete Diversity

A 
Interpleader
Only 2 adverse claimants
Class actions over $5,000,000
Any member of the class diverse
75 persons died from same accident
Only one defendant needs to be diverse
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24
Q

Domicile of Individuals Complete Diversity

A

Physical present

Subjective intent to stay permanently

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25
Q

Domicile of Corp Complete Diversity

A

State were incorporated
Principal place of business (PPB)
“Nerve center” where officers direct, control, and coordinate the corp’s activities (headquarters)

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26
Q

Domicile Unincorp Ass’ns Complete Diversity

A

Citizenship of all members

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27
Q

Domicile Incompetent Complete Diversity

A

Determined by them AND

NOT their representatives

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28
Q

Domicile Alienage Complete Diversity

A

No fed JDX between aliens UNLESS also US citizens on both sides

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29
Q

Amount in Controversy

A

Exceeds $75,000 at time of action

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30
Q

Aggregation of Amount in Controversy

A

One plaintiff v one defendant
Joint tortfeasor defendants
Multiple if common undivided interest BUT may have to pay defendant’s litigation costs if recovers less than $75,000
NOT allowed for counterclaims
Counterclaims not included to meet plaintiffs amount
Compulsory not required to meet
Permissive must meet

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31
Q

Supp JDX SMJ

A

Allows extension of subject matter JDX when additional claim does not have individual JDX AND based on common nucleus of operative fact

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32
Q

Removal

A

Move case from state court to federal court if originally could have been brought there
Only defendants eligible to remove UNLESS defendant citizen of forum
To federal district court in same state action is pending
Within 30 days after service of initial summons or pleading

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33
Q

Remand

A

Attempts to remove are improper
Federal court can remand back to state court
Plaintiff must remand within 30 days of removal
No time limit if no subject matter JDX

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34
Q

Venue

A

Geographic district that is the

Proper place for particular case to be heard

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35
Q

Place of Proper Venue

A

District where claim occurred, substantial part of claim arose, where land in dispute is located
District where defendant resides (PJ for business)

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36
Q

Catchall for Venue

A

If neither claim occurred or defendant resides, then venue proper where any defendant subject to PJ

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37
Q

Transfer of Venue when OG Venue Proper

A

Can transfer where could have been filed OR all parties consent

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38
Q

Transfer of Venue when OG Venue Improper

A

Dismiss OR interest of justice, transfer to proper venue

Can be waived by absence of timely objection

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39
Q

Forum Selection Clauses

A

Generally upheld

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40
Q

Forum Non Conveniens

A

May dismiss or stay case if far more appropriate forum (another state or country)

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41
Q

Notice

A

Met if reasonably calculated to apprise interested parties of pendency of action and afford opportunity to present objections

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42
Q

Service of Process

A

Delivery of summons and copy of compliant

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43
Q

Method of Service of Process

A

By anyone at least 18 and not a party

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44
Q

Types of Methods of Service of Process

A

Personal Service
Substituted Service
Constructive Service

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45
Q

Personal Service

A

Always adequate

Personal delivery to defendant

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46
Q

Substituted Service

A

Left at defendant’s usual abode served upon someone of suitable age and discretion who resides there OR served to authorized agent

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47
Q

Constructive Service

A

Served by registered mail ONLY IF defendant agrees to waive service of process

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48
Q

Choice of Law Fed Q

A

Fed substantive and procedural laws

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49
Q

Choice of Law Diversity

A

Must apply state substantive law and federal procedural law
Prevent forum shopping if conflict between state law and fed law
If Procedural and FRCP on point, tests unnecessary

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50
Q

Tests for Diversity Choice of Law

A

Outcome Determinative Test

Balance of interests

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51
Q

Outcome Determinative Test

A

Substantive if substantially affects outcome

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52
Q

Balance of interests

A

Fed interest of fed law vs. state interest of state law

If state greater interest, substantive

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53
Q

Pleadings

A

Documents that set forth claims and defenses

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54
Q

Notice of Pleadings

A

Provide opposing party with reasonable notice and nature of claim

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55
Q

Rule 11 Pleadings

A

Requires signature that paper is proper legal contentions warranted by law
Factual contentions have evidentiary support
Does not apply to discovery documents

56
Q

Sanctions of Rule 11

A

Sanctions may be imposed but subject to 21 day safe harbor rule
Allowed to withdraw or correct within 21 days

57
Q

Complaint Req

A 
Used by plaintiff to raise issues
Identification of parties
State of SMJ
Statement of claim with enough facts to
Support plausible claim EXCEPT fraud, mistake, and special damages
Require specificity
Demand for judgment
Signature of plaintiff or attorney
58
Q

Rule 12 Answer Time

A

Answer by motion or answer within 21 days of service of process 60 if service waived

59
Q

Answer Req Rule 12

A

Defendant’s response to complaint
Must respond to allegations by denying, admitting, or lacks sufficient information failure to deny is an admission
Assert affirmative defenses

60
Q

Motion for More Definite Statement

A

Complaint too vague

61
Q

Motion to Strike Pleading

A

Immaterial or redundant issues

62
Q

12(b) Defenses

A 
Failure to state claim upon which relief can be granted
Failure to join party
SMJ
PJ
Venue
Process/Service
63
Q

12(b) defenses anytime until trial concluded

A

Failure to state a claim on which relief can be granted

Failure to join party

64
Q

12(b) defenses First response or waived

A

PJ
Venue
Process/Service

65
Q

12(b) defenses anytime before all appeals exhausted

A

SMJ

66
Q

Amend Rights

A

Right to amend once within 21 days of service

Otherwise, must get court approval but is granted freely if justice so requires

67
Q

Amend Relation Back

A

After SoL runs, can amed claim

Relates to same conduct, transaction, or occurrence

68
Q

Claim Amendment

A

Relates back to date of OG pleading

Out of same transaction

69
Q

Person Amendment

A

Party knew of the OG action AND knew should have been named

70
Q

Permissive Party Joinder

A

Claim arises out of same transaction AND one common question of fact or law
Must have SMJ

71
Q

Necessary Party Joinder

A 
Court cannot complete relief
Absent party’s interest will be harmed
Absent party is subject to multiple inconsistent obligations
Must be joined if:
Court has PJ
Doesn’t destroy diversity
72
Q

Necessary Party Joinder Unable to Join

A

If there is an alternative forum, assess likelihood & extent of prejudice
Whether can shape relief to avoid prejudice
May either dismiss b/c party indispensible OR proceed w/ case w/out necessary party

73
Q

Impleader (Third-Party Complaint)

A

Defendant can add a 3rd party defendant for indemnity or contribution
Supplemental JDX will apply b/c common nucleus of operative fact
Venue need not be proper

74
Q

CA Impleader

A

Called a cross-complaint

Allows addition of any claim on which 3rd party defendant liable so long as same transaction or occurrence

75
Q

Intervention

A

Nonparty claims an interest AND disposition in absence will impair rights

76
Q

Interpleader

A

One holding prop forces all potential claimants into one lawsuit

77
Q

Two Types of Interpleader

A

Statutory

Rule 22

78
Q

Statutory Interpleader

A

Only one claimant must be diverse from one other claimant

Amount in controversy $500 or more

79
Q

Rule 22 Interpleader

A

Stakeholder diverse from every claimant

Amount in controversy exceed $75,000

80
Q

Counterclaim

A

Offensive claim against an opposing party

81
Q

Compulsory Counterclaim

A

Same transaction or occurrence raised in pending case or waived
Supp JDX so no independent SMJ required

82
Q

Permissive Counterclaim

A

Same transaction or occurrence BUT may be raised in a separate case
No Supp JDX so independent SMJ required

83
Q

Cross Claim

A

Against a co-party
Must arise out of same transaction
Never compulsory
Supp JDX so no independent SMJ required

84
Q

Class Action Requirements

A

Numerosity
Commonality
Typicality
Adequacy

85
Q

Numerosity

A

Too many for joinder to be practical

86
Q

Commonality

A

Question of law or fact are common

87
Q

Typicality

A

Representative’s claims typical of class

88
Q

Adequacy

A

Representation will fairly represent class

89
Q

Types of Class Actions

A

Prejudice: necessary to avoid inconsistent results
Injunctive or declaratory relief is sought
Question of law/fact common to class: predominate over questions affecting individuals

90
Q

Citizenship for Class Actions

A

Only citizenship of named rep is used

Amount in controversy satisfied by any named rep

91
Q

Class Action Fairness Act

A

Relaxes the requirements for some
Any class member diverse from any defendant
Aggregation exceeds $5,000,000
100 members

92
Q

Discovery Standard

A

Reasonably calculated to lead to discovery of admissible evidence

93
Q

Mandatory Disclosures for Discovery

A

Initial disclosures supplying info about disputed facts
Expert testimony info
Pretrial disclosures

94
Q

Initial disclosures supplying info about disputed facts

A

Persons likely to have discoverable info
Copies or descriptions of tangible evidence
Damages computation and supporting documentation

95
Q

Expert testimony info

A

Identity of the expert
Qualifications
Written report
At least 90 days before trial

96
Q

Pretrial disclosures

A

List of non-expert witnesses
List of documents or exhibits
14 days to object

97
Q

Depositions

A 
Examination of a witness
Occurs under oath
Recorded by sound, video, or stenography
Parties allowed
Nonparties by means of subpoena
Once only UNLESS court approval
98
Q

Limitations of Depos

A

10 depositions

Cannot exceed 7-hour day

99
Q

Interrogatories

A

Questions propounded in writing to another party
Must be answered in writing under oath
Answer within 30 days
NOT for nonparties

100
Q

Limitations of Interrogatories

A

25 questions, including suparts UNLESS

Court approval

101
Q

Request for Admissions

A

Admit the truth of discoverable matter NOT nonparties

102
Q

Requests to Inspect and Produce

A

Party or nonparty w/ subpoena

Make available for review and copying documents, electronic copies, other tangible items, or permit entry on property

103
Q

Electronically Stored Data

A

Meet to discuss and report to court
If not reasonably accessible due to burden or cost, court may still order and impose cost-sharing measures
Must take reasonable steps to preserve OR be sanctioned

104
Q

Request for physical or mental examination

A

Sought from an opposing party

Obtain court order upon showing physical or mental condition at issue AND good cause for an examination

105
Q

Discovery Privilege

A

Not discoverable

106
Q

Discovery Physician/Patient Privilege

A

Many states recog but not FRCP

Considered under Erie

107
Q

Discovery Attorney/Work Product

A

Material prepared in anticipation of litigation

Generally not discoverable UNLESS substantial need AND inability to obtain information otherwise

108
Q

Discovery Absolute Privilege

A

Mental impressions, opinions, and legal theories

Generated by party or attorney, or rep of party

109
Q

Motion to Compel

A

Fails to respond to discovery

Must be served on all parties and include certificate attempt to confer

110
Q

Discovery Sanctions

A

Holding a non-complying party in contempt

Striking pleadings, imposing fees, AND ordering default judgment

111
Q

Voluntary Dismissal

A

One without prejudice

Court may grant after answer or MSJ UNLESS substantial prejudice to defendant

112
Q

Involuntary Dismissal

A

At defendant’s request or court’s own motion usually with prejudice

113
Q

MSJ

A

No genuine issue of material fact AND entitled to judgment as a matter of law
Viewed in light most favorable to non-moving party
Evidence must be firsthand knowledge
Credibility not weighed here
Can grant partial

114
Q

7th Amend

A

Preserves right to jury trial in civil actions at law
Judge decides issues of equity
Legal issues decided first, then equity
Must demand w/in 14 days after service of last pleading
Raising jury triable issue OR waived

115
Q

Jury Composition

A

Each side has unlimited
challenges on voir dire for cause AND 3 peremptory challenges
Cannot be race or gender
Contains 6-12 jurors and unanimous vote required

116
Q

JMOL

A

One party files motion after
Other side has been heard at trial
“Reasonable people could not disagree on the result”

117
Q

Renewed JMOL

A

After jury reached verdict
Must have filed JMOL properly
“Reasonable people not disagree on result”
Within 28 days after entry of judgment

118
Q

New Trial

A

Within 28 days of entry of judgment

Grounds for new trial:
Prejudicial error making judgment unfair
New evidence that could not be obtained for OG trial
Prejudicial misconduct of party, attorney, or juror against weight of evidence
Excessive damages or inadequate damages

119
Q

Motion to Set Aside Judgment

A

Clerical errors
Neglectful mistakes within one year after judgment
Newly discovered evidence could not be obtained for OG trial within one year after judgment
Fraud or representation within one year after judgment
Judgment is void for lack of due process

120
Q

Conditional New Trial Remittitur

A

Judge orders new trial for defendant
To take place UNLESS plaintiff agrees to a reduced aware of damages
Judge found “excessive as to shock conscious”

121
Q

Final Judgment Rule

A

Only final judgments may be appealed
Ultimate decision made by trial court on merits of entire case such that
Final judgment as to all parties and all COA

122
Q

Exceptions of Final Judgment Rule

A

Injunctions and some interlocutory orders
Trial court certifies an interlocutory for appeal
Collateral orders i.e. procedural issues
Multiple claims or parties and some issues are pending BUT one issue is final
Extraordinary Writ
Aggrieved party may seek to compel lower court to act, or refrain from acting

123
Q

Appeal Time

A

Within 30 days after entry of final judgment

124
Q

Standards of Review

A

De Novo
Clearly Erroneous
Light most favorable to affirming jury’s verdict
Abuse of discretion

125
Q

Matters of Law

A

Reviewed de novo

Substitute judgment for that of trial judge

126
Q

Questions of fact determined by a judge

A

Clearly erroneous standard

127
Q

Questions of fact determined by a jury

A

Light most favorable to affirming the jury’s verdict

128
Q

Mixed questions of fact and law

A

De novo

129
Q

Matters discretionary to judge

A

Abuse of discretion standard

Only if clearly wrong

130
Q

Claim Preclusion (Res Judicata)

A

Precludes relitigation of a claim already decided in prior litigation between same parties

131
Q

Claim Preclusion Req

A

Valid Final Judgment
Same plaintiff and defendant
Same claim

132
Q

Valid Final Judgment

A

When judgment is rendered

133
Q

Claim Preclusion Same Claim

A

Same transaction or occurrence

134
Q

Issue Preclusion (Collateral Estoppel)

A

Precludes relitigation of a particular issue already decided in prior litigation

135
Q

Issue Preclusion Req

A

Final judgment on merits
Same issue actually litigated
Issue was essential to judgment
Same party or in privity of prior suit

136
Q

Sanctions Electronically Stored Data

A

Payment of expenses incurred by other party as
Result of destruction of evidence
Instruction to jury authorizing it to draw
Adverse inference from destruction of evidence
Shifting burden of proof on relevant issue, or
Even judgment against responsible party

137
Q

Multiple Defendants Venue

A

If all in same state then

Any district where any defendant resides

Utah Essay Bar Studies (16 decks)

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