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Civ Pro Flashcards

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1
Q

Venue: residence for business entity

A

Any judicial district that has PJ over the business entity for the action question

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2
Q

Venue: transfer from proper venue

A

Party can move to transfer from a proper venue (a) for convenience of parties or witnesses or (b) if consensual. Transfer must be to a district where the case could originally have been filed (PJ; SMJ; proper venue).

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3
Q

Venue—what happens if improper

A

Court can dismiss or transfer (if in the interests of justice, to a district where case originally could have been filed)

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4
Q

Venue: law applicable on transfer

A

If proper: law of transferor ct

If improper or transfer is to enforce a forum selection clause: law of transferee ct

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5
Q

FNC

A

If proper court is in another judicial system, the court may dismiss or stay

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6
Q

Removal and remand timing

A

Removal
—for diversity case, must be within 1 year of action being commenced, unless p acted in bad faith
—must be within 30 days from the date D receives notice the case is removable

Remand
—if based on defect other than SMJ, must be within 30 days

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7
Q

Removal: venue

A

The district that embraces the place where the state court action is pending

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8
Q

Default + Default Judgment

A

Default: notation in record that D has failed to timely answer

Default Judgment: cuts off D’s right to contest liability, but D can contest amount of damages
—entered by clerk: allowed if 1) D has not appeared 2) sum certain 3) not greater than amount stated in complaint 4) D not infant or incompetent. No additional notice needed.
—entered by judge: required if D has appeared in the case. Additional notice of 7 days required

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9
Q

Amendment: changing party

A

Amendment naming new adverse party will relate back if within the time for service of process, 1) the new party had sufficient notice of the action to avoid prejudice and 2) knew or should have known that, but for mistake re identity, she would have been named originally.

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10
Q

Rule 11 + sanctions

A

Atty certifies that to the best of her knowledge, pleading:

1) is not presented for improper purpose
2) legal contentions are non-frivolous
3) factually contentions are likely to have evidentiary support upon further investigation
4) denials of factual contentions are warranted

Sanctions
—ct can raise on its own and issue OSC
—party can serve motion on opponent, and if opponent fails to cure within 21 days, party can file with court
—no monetary sanction can be imposed on represented party for violation of verification of legal contentions

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11
Q

3P Claim (Impleader)

A

∆ bringing in 3P to shift some PORTION of liability. If ∆ is claiming that 3P was 100% responsible, that does NOT work. Need SMJ, which will be satisfied by Supp JX (b/c CNOF).

Timing: w/in 14 days of serving answer; after that, need to seek leave

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12
Q

Jury trial rights: case w/ legal and equitable claims

A

Legal claim is tried first to a JURY; then equitable claim is tried to the COURT (and jury’s findings of fact bind the judge)

∆ claiming damages and an injunction CANNOT BE DENIED a jury on damages issues on the ground they are incidental to equitable relief

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13
Q

Trial of legal and equitable claims–what order?

A

If legal and equitable claims are joined in one action involving common fact issues, the legal claim should be tried first to the jury and then the equitable claim to the court (the jury’s finding on fact issues will bind the court in the equitable claim).

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14
Q

Is federal regulation of the subject matter sufficient to confer FQ jurisdiction in a Breach of K action?

A

No

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15
Q

Alienage JX

A

π (U.S. citizen) v. ∆ (citizen of foreign country (e.g., green card holder))

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16
Q

Test for person establishing new domicile

A

(1) presence in new place and (2) intent to remain for foreseeable future

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17
Q

When is citizenship tested for diversity purposes?

A

At the time of filing

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18
Q

Where is a corp’s PPoB?

A

Its nerve center/headquarters: where its managers direct, control, and coordinate corporate activities

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19
Q

What is the standard for the amount in controversy requirement under diversity jx?

A

Plaintiff’s god faith claim that the amount in controversy exceeds $75k is sufficient, unless it is clear to a legal certainty that she cannot recover more than $75k.

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20
Q

Aggregation to meet AIC requirement

A

One π can aggregate all claims against one ∆

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21
Q

Meeting AIC requirement when seeking injunction

A

(a) is the complained of conduct causing more than $75k harm to π
or
(b) would it cost ∆ more than $75k to comply with injunction

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22
Q

Time for removal

A

w/in 30 days of service of first document that shows case is removable

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23
Q

2 limitations on removing diversity cases?

A

(1) if ∆ is a citizen of the forum state

(2) if more than 1 year has passed since case was filed

24
Q

When ∆ removes, where does ∆ file the notice of removal?

A

In the federal district embracing the state court where the action was filed

25
Q

When can a π move to remand?

A

If removal was improper b/c lack of SMJ, π can move to remand at any time

If removal was improper b/c of anything other than lack of SMH, π must move to remand within 30 days after ∆ filed notice of removal in federal court

26
Q

Erie approach for the bar (keep it simple): rule + 2 steps

A

A federal court sitting in diversity applies federal procedural law and state substantive law.

(1) Is there a federal rule on point that conflicts with an applicable state rule?
––Yes: Then federal rule applies, if it is valid (i.e., if it is arguably procedural)
(2) If there is no federal rule on point, is the state rule substantive?
––5 categories of substantive rules: (i) elements of claim or defense; (ii) SoL; (iii) tolling SoL; (iv) conflicts rules; (v) standard for whether to grant new trial b/c jury award is excessive/inadequate
––If not one of those 5 categories, need to apply the following factors…
––––(a) Outcome Determinative: will ignoring state rule affect the outcome of the case?
––––(b) Forum Shopping Deterrence: will ignoring state rule cause an influx of federal filings?
––––(c) Balance of interests: does state or fed have stronger interest?

27
Q

What needs to be in a federal complaint?

A

(1) grounds for SMJ
(2) short and plain statement of claim showing entitlement to relief
––Standard (plausibility pleading): facts supporting a plausible claim
(3) demand for relief

28
Q

Time to answer after denial of 12(b) motion?

A

14 days

29
Q

When will an amendment relate back in order to add a ∆?

A

(1) same t/o; (2) ∆ knew of the case w/in 90 days of filing; (3) ∆ knew or should have known that, but for a mistake, she would have been named originally

30
Q

When will an amendment relate back in order to add a claim?

A

Same t/o

31
Q

R11 certification

A

(1) not for improper purpose; (2) legal conclusions are warranted; (3) factual contentions and denials have evidentiary support

32
Q

∆ violates R11 –> what does π do? can court raise sua sponte?

A

(1) service motion for sanctions ON ∆; (2) if ∆ fails to cure the problem w/in 21 days, only then can π serve the motion on the court

Court can raise sua sponte (issues OSC on party to show why sanctions should not be imposed)

33
Q

How long does ∆ have after filing his answer to implead at 3P-∆ as a matter of right (i.e., b/f ∆ has to seek leave of court)

A

14 days

34
Q

Intervention: as of right v. permissive

A

Intervention as of right: absentee would be harmed if not joined and her interests are not adequately represented

Permissive Intervention: absentee’s claim/defense have common question

35
Q

FRCP 23: the four requirements + type of class action

A

(1) Numerosity
(2) Commonality
(3) Typicality
(4) Adequacy

+

(a) class action is necessary to avoid prejudice;
(b) injunctive relief / declaratory relief; or
(c) common questions predominate + class action is superior method

36
Q

What does a party have to show to discover consulting expert witness

A

Exceptional circumstances, such that it is impracticable to obtain the facts/opinions by other means

37
Q

Are “contention interrogatories” (asking about a party’s legal contentions) allowed?

A

Yes

38
Q

How many interrogatories + time to respond?

A

25, including subparts

30 days from service

39
Q

In lieu of answering an interrogatory, when can a party simply provide the other party with access to a business record?

A

When the info requested can be found in the business record and the burden of finding them would be about the same for either party

40
Q

FED: requirements for medical exam

A

Must show (1) person’s heath is at issue and (2) good cause. The person to be examined must be within the party’s custody or control (employer/employee will NOT work)

41
Q

What happens if the court orders a medical exam of π, and then π requests to see the examiner’s report?

A

π can do this, but it will mean that he will have to produce all medical reports by his own doctors re the relevant condition

42
Q

Discovery standard: FED v. CAL

A

FED: Any information relevant to a party’s claim or defense which is proportional to the needs of the case

CAL: Any information relevant to the pending action, taking into account privacy concerns under CA constitution

43
Q

When is WP discoverable?

A

(1) substantial need (2) avoid undue hardship

44
Q

Voluntary dismissal as a matter of right

A

π can do this once; must be before ∆ files answer or MSJ

45
Q

Does the judge assess credibility on MSJ?

A

NO

46
Q

Jury trial demand

A

Must be made in writing no later than 14 days after services of last PLEADING that addresses a jury triable issue (typically, the answer)

47
Q

Timing for relief from judgment

A 
Clerical Error: Any time
Mistake: reasonable time ≤ 1 year
Fraud: reasonable time ≤ 1 year
New evidence (could not have been discovered with due diligence in 28 days): reasonable time ≤ 1 year
No SMJ (void judgment): reasonable time
48
Q

Appeal: where and when to file notice?

A

District court; 30 days after entry of judgment

49
Q

Interlocutory Appeals Act: when is appeal of non-final order allowed?

A

(1) district judge certifies it involves a controlling issue of law (2) of which there is substantial ground for disagreement and (3) Court of Appeals agrees to hear case

50
Q

Collateral Order Rule

A

Appellate court has discretion to hear ruling on an issue if (1) distinct from merits; (2) important legal question; (3) it’s unreviewable if parties wait for final judgment

51
Q

Grounds for judge to enter final judgment as to one party, but not another

A

Express finding that there is no just reason for delay

52
Q

Standard of review for content of jury instruction? for whether jury instruction should have been given?

A

Content: de novo

To instruct or not to instruct: abuse of discretion

53
Q

Claim Preclusion

A

(1) Same claim
(2) Same claimant against same ∆
(3) Valid and final judgment
(4) On the merits

54
Q

Issue Preclusion

A

(1) Same issue
(2) Valid and final judgment
(3) Necessary to judgment
(4) Actually litigated and determined

Issue preclusion can only be asserted against someone who was a party to Case 1 or in privity w/ a party in Case 1

Defensive non-mutual: OK
Offensive non-mutual: OK if fair and reasonable

55
Q

When will costs NOT be awarded where a court grants a party’s motion to compel?

A

Trigger: Party fails to produce –> OC files motion to compel.

If the court grants the motion to compel, costs WILL be awarded, UNLESS: (i) the movant filed the motion before attempting in good faith to obtain disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances exist that make an award of expenses unjustified.

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