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The Bar!!!! > Civ Pro > Flashcards

Civ Pro Flashcards

1
Q

What is the difference between a federal court’s subject matter jx and a state court’s SMJ?

A

Federal courts have LIMITED smj State courts have UNLIMITED smj (assume state courts always have jx over any kind of case unless given a contrary statute)

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2
Q

Can either party waive the lack of SMJ?

A

NO!!! lack of SMJ cannot be waived by failing to object or by affirmative consent

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3
Q

When can lack of SMJ be raised? By who can it be raised?

A

Lack of SMJ can be raised by ANY PARTY (P, court, D) at ANY TIME (even on appeal)

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4
Q

What are the two ways to get SMJ?

A

Federal question jx diversity jx

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5
Q

What is federal question jx?

To what does one look to determine whether it exists?

A

FEDERAL QUESTION JX = You have SMJ for a claim ARISING UNDER FEDERAL LAW

TO FIND: Look at the face of PLAINTIFF’S COMPLAINT

  • only P’s claims count: EXISTENCE OF FEDERAL DEFENSE IS IRRELEVANT
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6
Q

When does a federal court have diversity jx? Exceptions?

A

Diversity jx exists when case is between:

  • citizens of different states, or
  • citizens of a state and a foreign country, AND amount in controversy (AIC) exceeds $75,000

EXCEPTIONS—even if diversity exists, can’t use it for:

  • probate actions (wills) and
  • domestic relations actions
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7
Q

What does it mean for there to be complete diversity? Are there exceptions to the requirement of complete diversity?

A

ALL plaintiffs must be diverse from ALL defendants

Minimal diversity = any P is diverse from any D, even if others overlap

Minimal diversity is acceptable in certain situations:

  • Federal Interpleader Act
  • Class actions with claims more than $5 million
  • Interstate mass torts if:
    • at least 75 people have died in one accident AND
    • Ds are from many different states
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8
Q

When must complete diversity exist?

A

when complaint is FILED (it’s fine if diversity doesn’t exist when cause of action arose or when case comes to trial)

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9
Q

How do you determine an individual’s citizenship for a diversity action? an alien?

A

an individual is the citizen of a state/country of DOMICILE:

  • DOMICILE = US citizen + permanent residency
    • permanent resident = residency + intent to remain indefinitely there
  • If ALIEN (citizen of foreign nation): citizen of foreign country
  • if permanent resident, treat as citizen of state in which she’s domiciled
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10
Q

What rules apply in determining diversity regarding a representative party?

A

Citizenship of representative party controls

EXCEPTIONS

  • for litigation re: decedent’s estate, citizenship of decedent controls
  • for guardian/rep of minor/incomptent, infant’s/incompetent’s citizenship controls
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11
Q

What rules apply in determining diversity regarding a class action?

A

citizenship of NAMED or REPRESENTATIVE PARTIES count

unnamed class members can join without regard to citizenship

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12
Q

What rules apply in determining diversity regarding a corporation?

A

can have SEVERAL CITIZENSHIPS AT ONCE

citizen of:

  • state/states/nations where it’s INCORPORATED
  • state/nation where it has its PRINCIPAL PLACE OF BUSINESS (hq(s))
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13
Q

What happens if Plaintiff is from maryland and D is a corporation incorporated in DE and NY with its PPB in MD?

A

NO DIVERSITY! Must check EVERY citizenship

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14
Q

What rules apply in determining diversity regarding a partnership or an unincorporated association? to what does this rule apply?

A

a partnership/unincorporated association is a citizen of EVERY STATE OF WHICH ITS MEMBERS ARE CITIZENS applies to partnerships, LLPs, trade assns, and unions

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15
Q

What are devices available to create/destroy diversity? When are these permissible?

A

these are okay as long as they are NOT SHAMS OR FRAUDULENT:

  • moving (even if it’s done with purpose of affecting diversity, just has to be genuine change in domicile)
  • assignment of claim: permitted as long as real (i.e., for VALUE) and complete (not COLLUSIVE)
    • NB: partial assignment for debt collection does NOT affect citizenship if assignor retains interest in claim
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16
Q

What amount is required to have diversity jx? Does it need to be proven?

A

must EXCEED $75,000, exclusive of interest and costs

any GOOD FAITH allegation will suffice

  • only when it appears to a LEGAL CERTAINTY that AIC will not be met will it be dismissed
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17
Q

When is aggregation of claims allowed in order to get diversity jx?

A

1 P v. 1 D: Allowed, regardless of claims’ relatedness

1 P v. 2+ Ds: P cannot aggregate claims against different Ds (NEED $75k for EACH D)

2+ Ps v. 1D: Ps cannot aggregate claims against D (could use supplement jx though)

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18
Q

What’s the difference between removal and transfer?

A

Removal = state to federal

transfer = from one fed court to another fed court

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19
Q

When is removal proper?

Who can remove?

If multiple Ds, what happens?

Anything extra if removal based on diversity jx?

Time limits on removal?

A

REMOVAL IS PROPER WHEN case could have been brought ORIGINALLY in fed court (P WOULD HAVE HAD SMJ)

  • ONLY Ds can remove
  • all Ds consented to removal within 30 days
  • IF BASED ON DIVERSITY:
    • diversity jx reqs are met
    • brought in state in which NO Ds ARE CITIZENS
  • removal is brought within one year of commencement of action
    • UNLESS P’S BAD FAITH MADE IT UNREMOVABLE
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20
Q

What happens when a D removes?

A
  1. notice of removal is filed in federal court, with a copy to state court
  2. state court’s jx ends AUTOMATICALLY
  3. P can file in FEDERAL COURT for remand, and federal court hears that
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21
Q

What is the basic rule of supplemental jx? Is a court required to hear a case over which it has supplemental jx?

A

Allows a federal court with SMJ to hear additional claims that don’t independently have SMJ if ALL CLAIMS CONSTITUTE SAME CASE/CONTROVERSY

  • same case/controversy = arise out of same transaction or occurrence
  • DISCRETIONARY
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22
Q

What limits apply to supplemental jx in a diversity jx case?

A

Must still be same case/controversy

NO SUPP JUR over:

  • claims by Ps against persons made party under r. 14, 19, 20, 24
  • claims by parties seeking to intervene as Ps under r24
  • claims by parties proposed to be joined as Ps under r19
  • (basically any PLAINTIFF’S CLAIM AGAINST NEW/ADDED Ds)
  • Claims by Ds ARE JUST FINE!
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23
Q

When can a counterclaim in a diversity action be allowed under supplemental jx?

A

IF COMPULSORY (i.e., arising out of same case/controversy), then fine if by D (because no limits) IF PERMISSIVE (different occurrence): not allowed under supp jur

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24
Q

When can a cross claim (p v. p or d v. d) in a diversity action be allowed under supp jx?

A

Must arise out of transaction or occurrence that’s subject of action or of counterclaim can’t be brought by P against new party

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25
Q

When is supp jx allowed in cases of multiple Ps against a single D?

A

since a single D is not made a party under rules 14/19/20/24, then multiple Ps can bringin RELATED claims against D even if they don’t satisfy AIC reqs

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26
Q

What are the two questions one must always ask when evaluating whether a court has PJ over a defendant? (REMEMBER FOR ESSAYS)

A
  1. has the basis for exercising PJ over an out-of-state defendant been authorized by statute (typically long arm) or rule of court?
  2. Is the particular basis for PJ permitted by the due process clause of the US Constitution?
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27
Q

What are the constitutional limits under the DP clause of a court exercising PJ?

A

DP requires MINIMUM CONTACTS between DEFENDANT and forum state such that it’s consistent with TRADITIONAL NOTIONS of FAIR PLAY and SUBSTANTIAL JUSTICE to sue D there.

Minimum contacts = PURPOSEFUL AVAILMENT BY DEFENDANT of protections of forum’s law.

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28
Q

Can one waive objection to lack of PJ?

A

YES! by either:

  1. under federal rules, lack of PJ is waived if not raised AT FIRST OPPORTUNITY
    • (either pre-answer motion or answer)
  2. OR SUBSTANTIAL PARTICIPATION ON THE MERITS waives PJ objection
    • (same thing, basically)
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29
Q

What’s the difference between general and specific in personam jx?

A

general = ANY CLAIM WHATSOEVER

specific = P’s claims against D must arise out of/directly relate to D’S CONTACTS WITH FORUM

  • governed by long arm statute
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30
Q

What are the bases for general in personam PJ?

A
  1. physical PRESENCE within state
    • –exception: if only there to answer SUMMONS
    • –exception: brought to state by FORCE or FRAUD
  2. DOMICILE
    • independent of physical presence
  3. CONSENT
    • can be given by K as long as reasonable
  4. corporations when AT HOME in forum state = -
    • INCORPORATION
    • PPB
    • mayyyyybe when operations there are so CONTINUOUS AND SYSTEMATIC as to make it at home (but hasn’t happened yet)
    • merely doing business is not enough
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31
Q

How does a court get specific in personam PJ over a D?

A

STATE LONG ARM STATUTES cover basically everything, as long as the claim ARISES OUT OF THE TRANSACTION INVOLVING THAT STATE

READ THE STATUTE!!

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32
Q

When does a federal court have broader PJ than its state courts?

A
  1. Federal Interpleader Act (statutory interpleader): sometimes congress authorizes NATIONWIDE service of process
  2. BULGE provision of federal rules: allows service 100 MILES of federal courthouse in two situations:
    • impleading third-party Ds under R14
    • joining necessary parties under R19
  3. weird scenario in which D is not subject to PJ in ANY STATE COURT
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33
Q

What is the test to determine if notice and service of process is constitutional?

A

Notice must be REASONABLE under the circumstances

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34
Q

What are the proper forms of service of process under the FRCP?

A
  1. whatever the STATE ALLOWS
  2. in hand PERSONAL delivery (you’ve been served)
  3. leaving summons at D’s DWELLING with a person of SUITABLE AGE AND DISCRETION
  4. delivery of summons to AUTHORIZED AGENT
  5. for ppl in foreign nations, service can be made by REGISTERED MAIL, return receipt requested
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35
Q

What is required for service of process on an infant?

A

service on infant AND ON PARENT/GUARDIAN

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36
Q

What is required for service of process on an adjudicated incompetent?

A

service on incompetent AND HER GUARDIAN

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37
Q

What is required for service of process on a corporation?

A

service on an:

  • OFFICER
  • DIRECTOR
  • MANAGING AGENT, or
  • APPOINTED AGENT
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38
Q

What is required for service of process on a non-resident motorist?

A

some states allowed service to be made on STATE OFFICIAL who then FORWARDS copy to D

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39
Q

What is required for service of process for in rem or quasi in rem actions?

A
  1. must first make a DILIGENT EFFORT to locate all claimants to property and serve them personally
  2. IF YOU CAN’T FIND THEM: notice by PUBLICATION is permitted
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40
Q

What does the question of venue address?

A

Whether this DISTRICT is a proper court to hear this action

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41
Q

Who is responsible for objecting to venue?

A

DEFENDANT!

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42
Q

When is an objection to improper venue waived?

A

Must be made at FIRST OPPORTUNITY (pre-answer motion or answer) or it is WAIVED

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43
Q

When is federal venue in a certain district proper?

A

Venue is proper in a district:

  1. where ANY DEFENDANT RESIDES, IF ALL Ds reside in SAME STATE
  2. where CLAIM AROSE
  3. if neither of the above, any district where D is subject to PERSONAL JURISDICTION is proper venue

NB: P’s residence is irrelevant!

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44
Q

For venue purposes, where is one’s residence?

A

Same as PJ!

individual = domicile

corporation = anywhere with PJ

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45
Q

What venue is proper in a case that began in state court and is removed?

A

Venue is automatically proper in the federal district where the STATE COURT SITS, even if that district would NOT BE PROPER ORIGINALLY!

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46
Q

When is transfer proper?

A

Transfer is only allowed to a district with PROPER VENUE, UNLESS ALL PARTIES AGREE to district without proper venue

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47
Q

What happens to a case brought in district without proper venue?

A
  1. may be DISMISSED, or
  2. transferred to a district with PROPER VENUE
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48
Q

Which law applies in a case that has been transferred?

A

if transferred from a district WITH PROPER VENUE, the law of the transferor (first) forum controls

if transferred from a district WITHOUT PROPER VENUE, the law of the transferee (second) forum controls

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49
Q

which law (federal or state) applies in a diversity action?

A

In a diversity case, a federal court applies STATE SUBSTANTIVE LAW and FEDERAL PROCEDURAL LAW (erie)

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50
Q

What is considered substantive law, and thus is governed by state law?

A
  1. rules that govern conduct
    • i.e., what must be proved to win a case; defenses
  2. state STATUTES OF LIMITATION
  3. BURDENS OF PROOF
  4. CHOICE OF LAW rules
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51
Q

What is considered procedural, and thus is governed by federal law?

A

ANYTHING COVERED BY THE FRCP!

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52
Q

What does a federal court in diversity do when there are no federal statutes or rules on point?

A

If substantive –> state

if procedural –> federal

To determine, look at TWIN AIMS of Erie:

  1. avoid forum shopping
  2. avoid inequitable administration of justice

Meaning: if choice of PROCEDURE would be OUTCOME DETERMINATIVE, then apply STATE LAW

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53
Q

In a diversity action, what law governs rules relating to the role of the jury?

A

ALWAYS FEDERAL LAW, regardless of twin aims

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54
Q

How does a federal court, sitting in diversity, determine the applicable state law?

A
  1. PRECEDENT from highest state court
  2. if none, PREDICT how highest state court would rule
  3. give RESPECTFUL, yet NON-BINDING attention to decisions of LOWER STATE COURTS
55
Q

When is a case officially commenced?

A

Federal civil actions begin with the filing of a COMPLAINT

for diversity actions, STATE LAW controls when an action is begun

56
Q

What are the three types of pleadings?

A

complaint

answer

reply

57
Q

What are the required elements of a complaint?

A
  1. short and plain statement of the court’s SUBJECT MATTER JURISDICTION
  2. short and plain statement showing claimant is entitled to RELIEF; and
  3. CLAIM FOR RELIEF sought
58
Q

Is recovery limited by the claim for relief stated in the complaint?

A

NO! you get what you prove, not what you ask for.

EXCEPT: in DEFAULT judgments, you can’t get more than you plead

59
Q

What is level of proof is required in the complaint?

A

NOTICE pleading (low burden): only a SHORT and PLAIN statement of the claim showing that pleader is ENTITLED TO RELIEF

just FAIR NOTICE of claim

60
Q

When is special pleading required, and what exactly is required?

A

Must allege with PARTICULARITY/SPECIFICITY/DETAIL:

  1. FRAUD or MISTAKE
  2. claims for SPECIAL DAMAGES
    • special damages = those that don’t ORDINARILY FOLLOW THE WRONG
61
Q

What limits exist on notice pleading?

A

Twiqbal!

Must show a plausible case for recovery, CANNOT JUST STATE LEGAL CONCLUSIONS

62
Q

Define: motion to dismiss motion for judgment on the pleadings motion for a more definite statement motion to strike

A
  • MTD: can raise lack of SMJ, lack of PJ, improper venue, failure to state a claim, failure to join a necessary party, or forum non conveniens
  • motion for judgment on the pleadings: applies when all facts are agreed upon and only law is in dispute
  • more def statement: asks that pleading be made more specific
  • motion to strike: can be used to delete IRRELEVANT matters or to strike a legally INVALID DEFENSE
63
Q

When can one file a motion for judgment on the pleadings?

A

only when there is NO FACTUAL DISPUTE

64
Q

What does the failure to respond to a complaint or a certain allegation in a complaint constitute?

A

ADMISSION (can be amended obvi)

65
Q

When must an answer be filed?

A

WITHIN 21 DAYS of service of the pleading to which it responds

66
Q

When can a pleading be amended?

A

may be amended AS OF RIGHT:

  • ONCE at ANY TIME WITHIN 21 DAYS of service, OR
  • within 21 days of D’s response (if there is one)

after it’s been amended once:

  • requires LEAVE OF COURT, which should be FREELY GRANTED
67
Q

What happens if a complaint is filed within the SOL period, but the plaintiffs want to amend it after the SOL has run?

A

IF the amendment concerns the SAME CONDUCT, TRANSACTION, or OCCURRENCE as the ORIGINAL pleading, then it “relates back” and the SOL does not preclude the amendment

key is notice: it can’t surprise the opposing party. if it does, it’s TIME-BARRED.

68
Q

When can a plaintiff amend his complaint to add or change a party after SOL has run?

A

same amendment rules (same conduct/transaction/occurrence)

party to be added must have KNOWN or HAD REASON TO KNOW that the action should have been brought against them but for a mistake

69
Q

Must pleadings be sworn to, i.e., verified?

A

NO! they can be, but they don’t have to be

70
Q

Who must certify a pleading and how?

A

ATTORNEY OF RECORD must certify (SIGN) any pleading, motion, discovery request, etc.

must also include attorney’s contact info

71
Q

What is the significance of a pleading being certified?

A

Certifies there is an appropriate LEGAL AND FACTUAL BASIS for filing.

Atty certifies that to the best of her knowledge AFTER REASONABLE INQUIRY:

  • no improper purpose
  • legal contentions are warranted
  • factual allegations have evidentiary support

Violation can be raised by court or party in motion for sanctions (MTD, rule 11 sanctions, atty bears costs)

72
Q

Can minors or incompetents sue?

A

only through a GUARDIAN

73
Q

When/how can partnerships get SMJ?

A

can sue as a partnership via FQJ

if suing in diversity, every partner’s citizenship status counts

74
Q

What’s the difference between:

permissive joinder

compulsory joinder

intervention

interpleader

A
  1. permissive joinder = can join (R20)
    • ANY ### of Ps can join (and any number of Ds can be joined) if claims arise out of same transaction AND common q of law/fact
    • STILL NEED SMJ for EACH
    • CANNOT join a party that would kill diversity in diversity case
  2. compulsory joinder = must be joined (R19)
    • necessary party = one whose participation is necessary for a JUST adjudication. MUST BE JOINED IF FEASIBLE
      • (feasible = doesn’t kill SMJ and court has PJ over D)
    • if necessary party cannot be joined, show goes on
    • if indispensable, court can dismiss suit
  3. intervention = outsider hopping in (typically Ps)
    • intervention AS RIGHT: when outsider’s interest would be COMPROMISED
    • PERMISSIVE intervention: allowed whenever common question of law/fact (but must ask court’s permission)
    • timely: “reasonable promptness”
    • when in diversity, NO SUPP JUR (must satisfy diversity reqs)
  4. interpleader = resolving competing claims to same property
    • Comes from Federal Interpleader Act (only federal court)
    • REQS:
      1. only need $500
      2. nationwide service of process allowed
      3. venue proper in any district where claimant resides
      4. SMJ allowed based on MINIMAL DIVERSITY
75
Q

When can claims between one P and one D be joined?

A

All claims may be joined, need not be related

76
Q

When must a compulsory counterclaim be pleaded?

What jx is available for compulsory counterclaim?

Permissive counterclaim?

A

Compulsory = in current action, LOST OTHERWISE

  • compulsory = same transaction/occurrence
  • supp jur typically available for these

Permissive = raised now or later

  • permissive = not same occurrence
  • require independent jx basis
77
Q

When does the SOL toll for a compulsory counterclaim?

A

Once you’ve filed ORIGINAL claim, that tolls SOL for ANY COMPULSORY COUNTERCLAIMS TOO

78
Q

When does the SOL toll for a permissive counterclaim?

A

only when it gets filed! original claim cannot save it

79
Q

what is a cross-claim? how can a cross claim be compulsory?

A

= claims asserted against a co-party.

MUST ARISE OUT OF SAME TRANSACTION/OCCURRENCE as original claim or counterclaim!

THEY NEVER ARE COMPULSORY YOU FUCKING MORON!!

80
Q

What is impleader?

When does it typically apply?

What is the jx basis?

A

bringing in a third party who may be liable to D for P’s claim against him

applies in two scenarios:

  1. 1)JOINT TORTFEASORS
  2. INDEMNIFICATION Ks

jx = SUPP JUR

  • citizenship of third party d irrelevant
  • AIC against 3pd irrelevant
  • only extends to claims BY DEFENDANT against 3pd
  • Personal jur = bulge provision (100 miles from courthouse)
81
Q

What are the four prerequisites for a class action?

A
  1. Numerousness (too many people to be joined normally)
  2. common qs of law or fact
  3. typicality of claims by class representatives
  4. adequacy of representation
82
Q

How is a class action dismissed/settled?

A

only with JUDICIAL APPROVAL

83
Q

What are the diversity jx rules for class actions?

A

named reps must be completely diverse from Ds and at least one P must have a claim worth more than $75,000

BUT if huge (100+ members and $5mil+ at stake), only minimal diversity needed

84
Q

What is the general rule regarding the scope of discovery allowed?

A

RELEVANCE!

you can discover anything that may be admissible at trial OR that might LEAD TO something admissible at trial

NEED NOT BE ADMISSIBLE (e.g., hearsay is discoverable, though inadmissible)

85
Q

What limits discovery’s scope?

A

PROPORTIONALITY: discovery is limited to the matters that are proportional to the needs of the case

i.e., does the burden/expense of the discovery outweigh its likely benefit?

86
Q

What are the exceptions to discovery? i.e., what cannot be discovered?

A
  1. things covered by evidentiary PRIVILEGE
  2. attorney work-product
  3. protective orders by judge
87
Q

What does the attorney work product rule protect?

What is the result/can it be overcome?

What are the special cases?

A

PROTECTS:

  1. documents and things (NOT INFORMATION)
  2. prepared in ANTICIPATION OF LITIGATION
  3. by or for ANOTHER PARTY or her representative

RESULT: qualified immunity from discovery

can be overcome if other party shows:

  1. a NEED for the doc/thing;
  2. that the info CAN’T OBTAINED ELSEWHERE

SPECIAL CASES:

  1. you can ALWAYS get a copy of YOUR OWN statements;
  2. you can NEVER discover the MENTAL IMPRESSIONS of a lawyer
88
Q

What is discoverable regarding experts?

A

IF TESTIFYING AT TRIAL: can always discover expert’s report, amount of compensation, facts, data, assumptions, etc

IF NOT TESTIFYING: no discovery except under exceptional circumstances

89
Q

How many depositions is a party allowed to have?

How long can they be?

How can you get the deposed person there? What if you need them to bring documents or things?

A

10 max (unless court allows more)

each limited to one 7 hour day (unless court allows longer)

any kind of notice to a party, but a subpoena required for a non-party

to get them to bring something: use a subpoena duces tecum

90
Q

how many interrogatories can one use?

against whom?

when is a response required?

can they respond with business records?

A
  • 25 max (unless court allows more)
  • against parties only
  • response required within 30 days
  • may respond with records as long as answer can be ascertained via substantially the same burden for each party
91
Q

When can a lawyer order a physical or mental exam of a person?

A
  1. must be a party
  2. party’s physical/mental condition must be in controversy
  3. only for good cause shown
92
Q

What is a request for admission?

What results from a failure to respond?

What is the effect of an admission?

A
  • Streamlines litigation by asking for admissions
  • failure to respond within 30 days is an ADMISSION
  • admissions are binding in the litigation but have NO PRECLUSIVE EFFECT (i.e., not binding in a future lawsuit)
93
Q

When can a deposition be admitted at trial?

A
  1. depo of adverse party is admissible as admission of party opponent
  2. depo of mere witness can be used to IMPEACH that witness
  3. depo of a witness who does NOT TESTIFY can be used only if witness is dead/beyond power of court/otherwise unavailable
  4. can be used if witness is more than 100 miles from place of trial
94
Q

What are the three circumstances under which a court can immediately impose sanctions?

A

COMPLETE DEFAULT:

  1. failure to attend one’s own dep
  2. failure to respond to interrogatories
  3. failure to respond to request for documents/things

Otherwise, need an order

95
Q

What happens if electronically stored info is lost?

A
  • If lost through UNREASONABLE CONDUCT:
    • court may order measures to cure the prejudice to the other party
  • if destroyed with INTENT TO PREJUDICE OPPOSING PARTY:
    • court may instruct jury to PRESUME EVIDENCE WAS UNFAVORABLE,
    • or even END THE CASE
96
Q

What are the five devices via which a party can move to terminate a case without a trial?

A
  1. Judgment on the pleadings
  2. default judgment (D doesn’t show)
  3. voluntary dismissal (without prejudice)
  4. involuntary dismissal (with prejudice)
  5. summary judgment
97
Q

What is a voluntary dismissal?

When can a plaintiff voluntarily dismiss her case?

A

voluntary dismissals are WITHOUT PREJUDICE (they can be brought again)

P has a RIGHT to voluntary dismissal ONCE at anytime BEFORE D’s SERVING an ANSWER or MSJ!

  • (MTD does not cut off right)

After Answer or MSJ, or if P has already voluntarily dismissed once:

  • P must SEEK LEAVE OF COURT for dismissal without prejudice.
  • (P will pay costs, often, if they re-file).
98
Q

What is an involuntary dismissal?

When is it with/without prejudice?

A

involuntary dismissal is typically WITH PREJUDICE: can’t bring it again.

WITHOUT PREJ in three scenarios:

  1. lack of JURISDICTION
  2. improper VENUE
  3. failure to join an INDISPENSABLE PARTY

WITH prejudice often for:

  • failure to prosecute (like default but with P)
  • failure to comply with FRCP or court order
99
Q

What is the standard of appellate review for the appeal of an involuntary dismissal?

A

ABUSE OF DISCRETION

100
Q

What’s the difference between summary judgment and a motion to dismiss for failure to state a claim upon which relief can be granted (12b6)?

A

12b6 tests ONLY LEGAL SUFFICIENCY of P’s claim

SJ can be used to test BOTH FACTS AND LAW

101
Q

Can summary judgment be partial?

A

YES, can be for whole case, only certain parties, certain claims, certain defenses, or certain issues

102
Q

what is the standard for summary judgment?

A

no GENUINE DISPUTE as to any MATERIAL FACT and moving party is entitled to judgment as a MATTER OF LAW.

  • genuine dispute = NO REASONABLE JURY could find for nonmoving party
103
Q

What must support a motion for summary judgment?

A

SWORN STATEMENTS that are BASED ON PERSONAL KNOWLEDGE

  • depos
  • answers to interrogatories
  • affidavits
  • stipulations
104
Q

When does one have a right to trial by jury?

A

for legal issues (damages), not equitable issues

NO RIGHT TO JURY FOR:

  • injunction,
  • specific performance,
  • admiralty issues
105
Q

What happens to the jury right if a case involves questions of law AND equity?

A

try the LEGAL (damages) issues first, no matter the order in which they arose

106
Q

When must a demand for jury trial be made?

A

within 14 days after service of the LAST PLEADING directed at the issue

107
Q

How many peremptory challenges does each side get to strike a juror without cause? Any limits?

A

3! Cannot be used for reasons of race or gender

108
Q

What is required of the court when one party requests particular jury instructions?

A

court must provide opportunity to OBJECT to proposed instructions

objections must be made:

  1. on the RECORD
  2. for STATED REASONS
  3. BEFORE jury retires to deliberate
109
Q

What is a motion for a judgment as a matter of law?

A

basically a MSJ AFTER TRIAL HAS BEGUN

110
Q

What is the standard for a JMOL?

A

same as MSJ: viewing evidence in most favorable light to nonmovant, EVIDENCE CANNOT SUPPORT a verdict for nonmovant.

111
Q

what is a renewed motion for JMOL? Reqs?

A

renewal of a Motion for JMOL AFTER JURY’S VERDICT

Standard is the same

PRIOR JMOL MOTION REQUIRED at close of evidence

112
Q

What is remittitur?

A

When the court deems the verdict was SERIOUSLY EXCESSIVE, it can make an offer to do a new trial or to reduce the verdict

113
Q

When are appeals typically available?

A

when a judgment is FINAL

114
Q

can a court render a PARTIAL final judgment?

A

yes, by EXPRESSLY designating the order as final

115
Q

When does a judgment BECOME final?

A

when entered by the CLERK on the court’s DOCKET (not when announced by the judge)

116
Q

When must notice of appeal be filed in the trial court? Alternatives to a notice of appeals?

A

within 30 days of entry of judgment

timely post-judgment motion (e.g., new verdict) tolls the 30 day limit

117
Q

What are interlocutory orders? examples?

A

orders IMMEDIATELY APPEALABLE AS OF RIGHT

  • orders granting/modifying an INJUNCTION
  • order changing/affecting POSSESSION OF PROPERTY
118
Q

What are discretionary interlocutory appeals?

A

any interlocutory (non final) order is appealable with LEAVE OF COURT

trial court certifies:

  • issue involves a CONTROLLING Q OF LAW with SUBSTANTIAL GROUND for difference of opinion
  • immediate appeal may MATERIALLY ADVANCE termination of litigation

appellate court must agree to accept appeal

119
Q

What can be interlocutorily appealed re: class actions?

A

appellate courts have DISCRETION to hear interlocutory appeals from orders CERTIFYING or REFUSING TO CERTIFY a CLASS ACTION.

120
Q

What is a collateral order doctrine? Main e.g.?

A

authorizes immediate appeal of collateral orders

DENIAL OF MTD FOR FORUM NON CONVENIENS CAN BE APPEALED INSTANTLY (because it’s saying this forum is so fucking annoying to have a trial at)

121
Q

What is a writ of mandamus?

A

provides for immediate appellate review of an order that is an ABUSE OF AUTHORITY

122
Q

What standard is used by the appellate court for questions of law?

What does that entail?

A

DE NOVO:

  1. did trial court make an error?
  2. was it prejudicial?
123
Q

How do appellate courts review findings of fact?

A
  • jury verdicts must be affirmed if supported by SUBSTANTIAL EVIDENCE
  • judge’s findings of fact must be affirmed unless they are CLEARLY ERRONEOUS
124
Q

What standard is used by the appellate court for matters of discretion? What does that entail?

A

ABUSE OF DISCRETION

  • if it’s a reasonable decision, upheld
125
Q

What are the two questions to be asked, in order, when considering a preclusion problem?

A
  1. is the CLAIM in the second suit precluded by prior adjudication? if yes = end of case.
  2. if not, are there any ISSUES in the second suit precluded by prior adjudication?
126
Q

What are the requirements of CLAIM PRECLUSION?

A
  1. a FINAL judgment ON THE MERITS in first suit
  2. second suit must have been between SAME PARTIES or their SUCCESSORS IN INTEREST; and
  3. second suit must involve same CLAIM or cause of action or claim that COULD HAVE BEEN BROUGHT IN FIRST CASE
127
Q

For prong 1 of claim preclusion (final judgment on the merits), need there be a trial?

A

NO, just have to bring claim and lose, not necessarily at trial

128
Q

For claim preclusion, what constitutes a “claim” such that it was brought before?

A

ALL LEGAL THEORIES to RECOVER FOR HARM arising out of SINGLE TRANSACTION.

  • e.g., a K claim and torts claim seeking redress for same injury = one claim
129
Q

In a suit over installment sales, for what must creditor sue?

A

all that is DUE AND OWING AT TIME OF SUIT (can’t only sue for jan and feb’s $$$ in april, if you also want march’s)

FUTURE DEBTS, however, are another claim

  • UNLESS there’s an ACCELERATION CLAUSE
130
Q

What are the three requirements of issue preclusion?

A
  1. SAME ISSUE OF FACT must arise in both suits;
  2. issue must have been ACTUALLY AND NECESSARILY DECIDED in first suit, and
  3. party TO BE PRECLUDED must have BEEN A PARTY to first suit.
131
Q

re: issue preclusion, is it okay if the two suits involve entirely different claims?

A

YES! just need same issue, decided, against same person

132
Q

What is the effect of a default judgment for preclusion?

A

full claim preclusive, but no issue preclusive effect (nothing actually litigated)

133
Q

Who can and cannot assert issue preclusion?

A

consider who is arguing that the issue IS NOT DECIDED. if that person was party to prior law suit where it was decided, they DON’T GET TO RELITIGATE

134
Q
A

The Bar!!!! (20 decks)

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