Civ Pro Add-ons Flashcards
When must lack of PJ be raised by defendant?
in pre-answer motion or answer (whichever comes first)
How can attorneys interact with non-parties for discovery purposes?
ONLY through oral deposition under oath
Do defendants have duty to waive service?
YES, to avoid unnecessary expenses of serving summons
Can default judgment have issue preclusive effect?
NO
What cases may a federal court NOT exercise jdx over?
1) Probate matters
2) Domestic relations (divorce/alimony/custody)
Where in the US may foreign residents be sued?
ANY judicial district, including where P resides
When is diversity determined?
At time complaint is filed
NOT when cause of action arose
When may a deposition be taken?
AFTER initial planning conference, unless court permits or parties stipulate
What number generally suggests numerosity for class action?
Min. 40 people (but flexible)
When may district court correct clerical error?
On its own initiative, UNLESS appeal has been docketed, in which case need appeals court permission
When is failure to deny an allegation in a complaint NOT treated as an admission?
When related to DAMAGES
Must plaintiff respond to allegations in defendant’s answer?
ONLY IF court orders a reply, in which case failure to address = admission
When forum state and place where D resides differ, which state’s service applies?
You can follow service rules of EITHER state
How soon after preliminary injunction is issued can it be appealed?
immediately, as of right
If you appear in court to litigate merits of case, have you consented to PJ?
YES, even if you hoped to use court appearance to argue against PJ. You have availed yourself
Is nerve center activity control or operations?
direction/control/coordination of high level officers
NOT manufacturing or physical operations
Are parties in independent contractor relationships in privity?
NO, and thus issue preclusion does not apply bc parties do not represent each other’s interest
BUT employee-employer relationships are in privity
Can a judge dismiss juror because of consensus to reduce size of jury?
NO, after empaneling, only for good cause/emergency/misconduct
When a similar action is pending in state court, can federal court hear a suit when it has SMJ?
Yes, UNLESS there is
1) unsettled law
2) state interest
3) exceptional circumstances
May a plaintiff assert claim against properly impleaded third party?
Yes, but ONLY IF the court has 1) original SMJ or 2) supplemental SMJ over the claim
Venue rules when government officer is sued in special capacity?
Venue may be
1) where D resides
2) substantial portion of events occurred OR
3) where P resides
Venue rules when US govt sued?
1) Where P resides
OR
2) where events occurred
Who holds funds in statutory interpleader?
Stakeholder must deposit property or post bond
May a party join multiple unrelated claims in federal court?
YES, if SMJ satisfied
If SMJ NOT satisfied for all claims, common nucleus of operative fact may allow for joinder
Does a court clerk need permission from court to enter default judgment ?
No, may do so in his role
Two dismissal rule
Voluntary dismissal is WITH prejudice when p dismisses
1) first action in FEDERAL or STATE court without court order AND
2) same claim filed for dismissal in FEDERAL court
How to handle if jury’s general verdict and specific answers are inconsistent?
When answers inconsistent wither verdict, judge may:
1) order new trial
2) direct jury to re-deliberate
Or
3) enter judgment consistent with ANSWERS (special verdict)
When answers inconsistent with verdict and each other, judge must:
1) order new trial
OR
2) direct jury to redeliberate
For purposes of peremptory challenges, must multiple attorneys for one side share their 3 challenges?
NO, each attorney gets 3 challenges if representing multiple clients
Is service by email allowed for international corporations?
YES, any methods available except personal delivery okay
Are most final judgments stayed?
YES, automatically for 30 days, unless court orders otherwise
EXCEPTIONS
1) injunction/receivership
2) accounting in patent-infringement
When is TRO treated as preliminary injunction?
When TRO is extended past 14 days, it becomes equivalent to preliminary injunction and is thus IMMEDIATELY appealable
When may federal court in diversity apply FEDERAL law to substantive issues?
Only on rare instance where federal common law governs a uniquely federal interest that conflicts with sate law (e.g. federal military equipment)
Deadline to object to pre-trial disclosures?
14 days after disclosures
Otherwise waived
What occurs at final pretrial conference and can decision be appealed?
At final pretrial conference, federal district court judge will issue final pretrial order that formulates plan for trial
Court may modify order ONLY to prevent manifest injustice
Probate exception
Prohibits a federal district court from interfering with state proceedings to probate or annul a will or to administer a decedent’s estate
Watch out for NON-probate matters that resemble probate (e.g. payable-on-death account)
Is diversity destroyed if plaintiff moves to new state for SOLE PURPOSE of achieving diversity?
No, still okay!
Home state advantage
DEFENDANT CANNOT request to remove a case to a federal court of its OWN state (bc no need for concern about bias/mistreatment)
Residents of forum don’t need additional protection!
Can representative of estate be domiciled in his own state if being sued for fraud?
YES
Rep is domiciled in decedent’s state for purposes of probate
BUT if he is being sued in his personal capacity for misconduct, he is domiciled in his own home state
When multiple states/parties involved in a transaction, which state’s long-arm statute applies to establish PJ
The forum state’s
If a state does not allow attorney fee awards, may a judge still elect to grant them?
YES, as a sanction for bad faith during litigation
Under Erie, when federal common law is not on point and there is relevant state law, when may federal common law still apply?
When a UNIQUELY FEDERAL ISSUE is at stake
Is a dismissal due to failure to timely serve process with or without prejudice?
WITHOUT
When may materials in a pleading be stricken?
Any time they are redundant, immaterial, or scandalous
Court (on its own or upon motion) may order to strike
When may a court impose Rule 11 sanctions?
Only when an attorney does NOT make a reasonable inquiry under the circumstances to form a good faith belief about a pleading/motion
If injunctive relief is sought for class action, should CAFA or 23(b) apply?
23(b)–for injunctive or declaratory relief, NOT damages
May non-deposing party use a deposition to impeach a witness?
YES, any party can use to impeach
If juror answers question honestly but unreasonably in voir dire, is this basis for motion to grant new trial?
NO, only if answer to material question was dishonest AND that proper response would have provided valid basis for challenge for cause
How to treat action if it involves both legal and equitable claims with common issues of fact?
Jury must first try the legal claims
THEN court determines equitable claims bound by jury’s findings of fact on legal claim
If a complaint has both federal question claim and state law claim, can federal court hear both?
YES, so long as federal cause of action exists, court can also hear state law claims
Can a PLAINTIFF not be subject to personal jdx in forum state?
NO, only defendant, bc plaintiff AVAILED SELF of state by choosing to sue there
When a suit is transferred to different federal court for convenience, does the law of transferor or transferee court apply?
The law of TRANSFEROR court (original court)
In J&S liability jdx, are tortfeasors facing J&S liability necessary parties?
NO, therefore joinder is not compulsory
If failure to disclose expert witness info is not timely, can party be prevented from using testimony?
YES, UNLESS the failure to disclose is HARMLESS to other party (eg no impact on other party’s trial preparation)
Must jury instructions be given before or after closing arguments?
EITHER, though generally given after
For purposes of PJ, where is an insurer domiciled?
It is citizen of INSURED’s state as well as its incorporation state
So diversity can be destroyed if insured D and P are residents of same state, even if insurer is located elsewhere
What is defendant’s best response if plaintiff’s complaint is conclusory?
MOTION TO DISMISS (failure to state legal claim)
Are alternative allegations in a complaint permissible?
Are inconsistent allegations in a complaint permissible?
Yes, BOTH are admissible
Must parties provide each other with insurance agreements?
YES, both parties MUST provide each other with info and copies of insurance agreements UNLESS otherwise stipulated
Are injunctions immediately appealable?
Yes, as a matter of right, within 30 days of decision
If verdict is against weight of evidence, may it be set aside?
NO, so long as there is some evidence to support verdict
Does diverse citizenship exist for stateless people?
NO
What parties are stateless?
1) noncitizens present in the US but not citizens of foreign country
2) US citizens domiciled in foreign country
When are subsidiary company’s minimum contacts established by parent corporation?
When subsidiary acts as parent corp’s AGENT or ALTER EGO
When may a party voluntarily dismiss crossclaim/counterclaim/third party claim without court order or party stipulation?
1) BEFORE a responsive pleading is served
2) If responsive pleading NOT served, before evidence introduced at hearing or trial
Does SCOTUS have original jdx over cases where a) one state is party and b) where two or more states are parties?
When ONE STATE is party: SCOTUS AND federal courts have concurrent jdx
When TWO OR MORE STATES are parties: SCOTUS has EXCLUSIVE jdx
When can PJ be established over a party who does NOT have sufficient minimum contacts with forum state?
When party is not subject to PJ in ANY state but has enough minimum contacts with US as a WHOLE
(usually for suit of foreign corp)
If a party is substituted for another in a lawsuit, does new party’s citizenship govern?
NO, citizenship is determined AT TIME OF FILING, so new party’s citizenship NOT relevant
In which states in corporation domiciled?
1) where it is INCORPORATED
2) where it has PRINCIPAL PLACE OF BUSINESS/HQ
Does Full Faith & Credit clause require State A Federal Court to enforce State B Federal Court judgment?
NO, only requires states to recognize judgments of OTHER state courts
Under 11(b), can attorney name a defendant who he believes is likely will be identified after discovery even when no evidence exists at the time?
YES, so long as he believes in good faith this will be discovered after investigation, sanctions cannot be imposed
Prejudicial risk class action
When separate actions would create risk of inconsistent decisions
Final equitable relief class action
When injunctive or declaratory relief appropriate because opposing party actions generally applicable to whole class
For which types of federal class actions must notice be given to class members?
For a) prejudicial risk and b) final equitable relief, notice NOT required bc no right to opt out
If a party consults with expert and ultimately does not have them testify at trial, must party reveal their identity to opposing counsel if so requested in interrogatory?
NO, this is privileged
Is an order granting partial summary judgment immediately appealable?
NO, bc not final judgment
In a bench trial, when may a party file for a judgment on partial findings?
As soon as nonmovant has been fully heard on the issue
Must a judge provide her factual findings and legal conclusions at bench trial in writing?
No, may also be oral
Are documents prepared in anticipation of litigation discoverable?
NO, unless party can show SUBSTANTIAL NEED or UNDUE HARDSHIP
Is an expert report for a non-testifying expert discoverable?
No, unless exceptional circumstances can be shown
What is spoilation of evidence?
Negligent or intentional destruction or alternation of evidence required for discovery
Can a company be liable for spoilation if it adheres to its own retention policies?
YES, must affirmatively act to keep items for longer than necessary if they know of upcoming litigation
When are sanctions for spoilation authorized?
Only if other information cannot restore information
Factors: prejudice to other party, intent of breaching party
When is removal jurisdiction appropriate?
Any time the district court in the state where state court action is filed possesses SMJ
Where is venue proper?
1) where any D resides
2) where substantial events/omissions of claim occurred
3) where property is located
In change of venue action, when is transferor court law NOT applied?
Although transferor court law usually applies, if transfer is based on valid FORUM SELECTION CLAUSE, the law should be applied in the court specified by the clause
May Ds who are citizens of different states request to remove case to federal court in one of their states?
NO, this violates the home state advantage rule
Does a state sitting in diversity apply its own law for preclusion decisions?
NO, must apply law of state in which federal court rendered original judgment to decide if THAT COURT intended for claim to be preclusive
Does forum-defendant / home state advantage rule apply to federal question jdx?
NO, only removal from diversity jdx
When does bulge rule apply?
for impleader ONLY
Can a court enter default judgment if D does not respond to complaint and request to waive service?
NO, if D doesn’t reply, this means he has not waived, and P must properly SERVE before default can occur
May a TRO order be brief? May it reference other documents?
It MUST describe acts restrained in REASONABLE DETAIL
It may NOT reference or incorporate other documents
Does an amended complaint “relate back” due to new findings that implicate a new party to be added?
NO, there must have been a MISTAKE about the party’s identity, not just new evidence or other basis for adding them
If attorney does not object to jury instructions, is right to object waived?
NOT NECESSARILY, if you failed to object at trial, can still review on appeal for plain error (showing that instructions affected a substantial right)
When may attorney object to jury instruction after it is given?
ONLY IF the instruction constituted plain error
Does revealing a client’s identity violate attorney-client privilege?
NO, unless that disclosure would reveal CONFIDENTIAL COMMUNICATION
If parties stipulate to non-unanimous verdict, must a minimum of 6 jurors return a verdict?
NO, parties can stipulate to as few as a simple majority (4-3), but minimum of 6 jurors must serve on case
In diversity, to determine whether state substantive applies, should court apply law of state in which it sits?
Court should apply CHOICE-OF-LAW RULES for state in which it sits
NOTE: this is not always the law for the state in which it sits!! It may choose the laws of another state
In federal court, does federal law govern privilege claims?
For FEDERAL proceedings: YES
For STATE proceedings in diversity: STATE LAW GOVERNS
May a cross-claim assert a defense, claim for relief, or both?
MUST assert claim for relief–defense insufficient
When can a scheduling order for trial be modified?
Only when moving party shows good cause (acted diligently) and judge consents
When can a party move for judgment on pleadings to dismiss?
ONLY after pleadings have closed–e.g. when answer to all cross-claims/counter-claims has occurred
Can a renewed JMOL be filed after the 28 day deadline?
NO, cannot be extended even if parties stipulate
When is a judgment void?
when court lacked 1) SMJ 2) PJ or 3) violated DP
What jdx for mass death accident?
If over 75 persons die in single accident, only ONE P needs to be diverse from D
Are pre-trial conferences mandatory or optional
OPTIONAL–court MAY assign, in which case parties must attend, but up to court’s discretion
For lawsuit against LLP, who must P be diverse from?
Must be diverse from ALL limited AND general partners
If D traveling through state to attend judicial proceeding in another state, is service proper?
NO, not proper if for the purpose of attending an unrelated hearing
Deadline to file motion to dismiss?
BEFORE discovery
in motion to dismiss, when non-movant shows lack of other party’s evidentiary support, how may other party respond to avoid summary judgment?
Nonmovant can avoid SJ by
1) presenting evidence OR
2) asking court to postpone consideration of the motion until additional discovery can take place, with an affidavit providing details
When process is delivered to a person’s home to a party of suitable age and discretion, has process been served?
ONLY IF party is RESIDENT in home, cannot just be visiting
If a lawsuit is about land-related fraud, should suit take place in state where fraud occurred, or state where land is?
state where FRAUD OCCURRED
When does forum non conveniens apply?
When PJ + venue are proper, a court may still transfer a case to another court when
1) another court is AVAILABLE
2) public factors
3) private factors (e.g. burdens)
Does federal question jdx apply just to federal law or other federal measures?
other measures including TREATY and CONSTITUTION
When a judgment is transferred to another state, to decide the effect of a judgment, does state or federal law decide the effect?
For judgments entered in STATE court: court subsequently presiding over the action applies ITS OWN STATE choice-of-law
For judgments entered in FEDERAL court: FEDERAL law applies
How to serve federal employee for work-related duties?
Serve pursuant to normal rules of individual service PLUS must serve US GOVT
Can you file a cross claim to implead someone?
NO, only when they are ALREADY a co-party
Instead, must file THIRD PARTY COMPLAINT
How can international service of process occur when there is no agreement or on point federal law?
1) follow THAT COUNTRY’S SERVICE RULES
2) foreign country explains how in response to letter rogatory
3) delivering summons and complaint personally or by mail UNLESS PROHIBITED BY THAT COUNTRY
Does 90 day service deadline apply to defendants within foreign countries?
NO, most fed courts require DUE DILIGENCE
Does diversity exist for foreign v. foreign parties?
NO
Does diversity exist between an American resident of Texas and resident noncitizen living in Texas?
NO, resident noncitizen must live in other state
If juror engages in conduct that is not prejudicial, is new trial warranted?
NO, this is harmless error.
ONLY when party can show that the misconduct INFLUENCED THE VERDICT
After how many days does D’s failure to respond to request for admission cause the matter to being admitted and conclusively established in the action?
After 30 days
Three I’s of Rule 24 Intervention
You can intervene if you have an
1) INTEREST that would be
2) IMPAIRED and current parties are
3) INADEQUATE
Class action requirements
CANT
Common question (of fact or law)
Adequacy (representative)
Numerosity (joinder impractical)
Typicality (claims are typical of class)
Types of class actions
RIP
Risk of harm (actions risking harm to class)
Injunction (injunction or declaratory relief)
Predominating commonality and superiority (common questions predominate)
Can multiple plaintiffs aggregate claims against single defendant to satisfy AIC?
NO, usually cannot. requires supplemental jdx
Can a jury trial demand be included in initial service of complaint?
YES
Does the safe harbor rule apply to court-imposed sanctions, motions for sanctions by opposing counsel, or both?
ONLY to sanctions initiated by opposing counsel
Court does NOT need to give violator time to cure
For diversity AIC, can a plaintiff aggregate two unrelated claims against same defendant?
YES, when there is single D and single P, ALL of plaintiff’s claims can be aggregated even if UNRELATED
Can a court consider documents outside the pleadings in a motion to dismiss?
NO!
ONLY complaint + exhibits + matters subject to judicial notice
Is forum non conveniens waived if not included in answer?
NO
when is a counterclaim compulsory?
when arising from SAME TRANSACTION OR OCCURRENCE AND
Does NOT require adding a party over whom court does not have jdx
Are trade secrets privileged?
NO
What is the best way to limit discovery of nonprivileged information that is relevant to needs of case?
stipulation to limit SCOPE of discovery
Can interrogatories be served on companies or just individuals
BOTH–can serve on companies
When party responds to records with interrogatories, does counsel have ability to to examine or copy records?
BOTH–can examine and copy
Does statute of limitations apply to service of process?
NO, statutory restrictions apply, but SOL only is in regard to FILING
Can a party demand jury trial AFTER removal to federal court?
Yes, IF demand served within 14 days AFTER filing or WITH notice of removal – IF necessary pleadings served before removal
Must a party automatically return evidence after it is accidentally disclosed if opposing counsel takes steps to remedy?
NO, can also sequester and petition court to turn over privilege claim
If party shows undue burden to produce evidence after motion to compel, can court still order production
No, UNLESS requesting party demonstrates GOOD FAITH CAUSE for production
Diversity requirements for limited partnerships
Plaintiff must be diverse from ALL general AND limited partners
What does it mean when a representative of another person files suit personally?
The representative’s domicile is THEIR OWN DOMICILE when they file personally, rather than adopting the domicile of the party they represent
When FED officer sued in official capacity, where is venue proper?
Special venue rules including where P RESIDES OR where EVENTS occurred
What 3 defenses MUST be raised in first of pre-answer motion or answer
1) lack of PJ
2) improper venue
3) insufficient service or process
Is there a time limit for motion for relief from judgement on basis of release/discharge, reverals/vacated, will violate equity?
ANY reasonable time (even if many yeasr after)
Can service be effectively made to a defendant’s assistance at workplace?
NO, this person is not their agent (UNLESS so specified)
Can a corporation/company be a public figure for purposes of defamation?
YES
Apportioning expenses as a result of granted/partially granted/denied motion to compel
if motion granted: court must AWARD MOVANT reasonable expenses
If partially granted: court may APPORTION expenses
If denied: court must award NONMOVANT expenses
Do same rules apply to service of process and service of answer?
NO, service of answer MORE LAX
For answer to be timely, must it be SERVED or FILED within 21 days?
SERVED
Then FILED in REASONABLE TIME thereafter
For 23(b) class action, is class member who objects to settlement bound by it?
YES, bc they did not elect to OPT OUT
Does attorney need to give reason for polling jury?
NO, just needs to do so in timely manner
Diversity requirements for statutory interpleader
MINIMAL diversity: at least 2 claimants must be diverse
If an appeal has been filed and there is error in docket, may district court amend?
ONLY IF the appeal has not yet been DOCKETED can district court amend on its own initiative
If docketed: need appellate court permission
What is best defense to summary judgment when D raises evidence in their favor?
P should request postponing motion until additional discovery can take place
