CIV PRO MBE Flashcards

Question

Relate Back

Answer 1

Want the amended pleading to revert back to OG date - Changing a party Allowed if: - same conduct or t/o - Notice within 90 days to new party - The new party knew or should’ve known that they would be sued but for a mistake in party ID

Answer 2

Lawyer is signing, submitting or filing a doc to the court Promising that what they are submitting is true to best of their knowledge Basically making sure lawyers aren’t submitting random shit - Allegations warranted by existing law - Evidentiary support - No improper purpose

Answer 3

A sues B & B sues A back

Answer 4

Same t/o Court already has supplemental jrd

Answer 5

Not same t/o Needs it’s own jrd

Answer 6

Multiple p’s can join together to sue someone Come from same t/o Question of law or fact is common

Answer 7

Party must join b/c would be unfair to litigate without them

Answer 8

Need to be joined b/c complete relief cannot occur Leaving them out would impair their interest If joining them destroys jrd = case may still PROCEED

Answer 9

If you don’t join them would prejudice them If joined them and destroys jrd = case is DISMISSED

Answer 10

(1) size - Must be so large that little claims would be impractical (2) common question - The issue must all of same law or fact (3) typicality - Claims have to be typical of the other hundred thousands (4) fair representation - The reps have to be fair to all members if request for a CA is denied -> can be appealed & others can move fwrd w/o you

Answer 11

(1) B1 - If it is not a class action it would impair interest of members (2) B2 - Injunctive relief (3) Common Question (most popular) - tort/injury B1 & B2 MAY NOT OPT OUT NO NOTICE REQUIRED (court discretion) B3 MAY OPT OUT NOTICE REQUIRED TO ALL MEMBERS Mail is ok to reach out

Answer 12

Citizenship of representative that counts!!!! Only one member has to have a claim over 75k -> everyone else can join in under the 75k Exception: if cumulative claims is over 5 mill -> don’t need to meet the 75k

Answer 13

Someone who is not part of the original suit -> wants to come in on their own As of right: - Do not need court permission if have an interest in prop or. transaction - impair them if not included Permissive: - Common question of law or fact - Court permission is required

Answer 14

D believes a 3P owes part or all of the claim Ex: John sues Isa - Isa thinks someone owes money too - Contribution - Indemnification

Answer 15

Statutory Interpleader - Nationwide service of process is allowed (doesn’t matter where they live) - Any two claimants can be diverse - 500 or more - Deposit money/prop with court Rule Interpleader - Complete diversity is required between all - No nationwide service - 75k requirement - No need to deposit money in court

Answer 16

1 party owes something to 2 or more ppl -> doesn’t know how much or who so can force the person to fight it out amongst themselves

Answer 17

anything: - Relevant - Not privileged - Proportional to the needs of the case

Answer 18

Sue a co-party ex: A sues B & C Cross claim: B sues C Cross-claims must arise from the same transaction or occurrence as the underlying action

Answer 19

generally not available to discover/immune Unless: - substantial need for material and you can’t get without undue hardship by any other means Absolute immunity - Legal opinions - Conclusions - Mental impressions

Answer 20

- Names and locations of all possible witnesses is all discoverable Expert Witnesses - The party must give other side the list of each expert who will testify will prepare a report with: - Compensation - Name - Info - All information they will testify over Experts who will not be a witness: - Only discoverable if there are exceptional circumstances Any info that is wrong or incomplete - must supplement or fix it within a reasonable time Methods Don’t need court intervention -> done b/w the parties

Answer 21

- Between party or non-party - Oral or written Non-Party: - Can force them to take depo via subpoena Party: - Make them take depo or can get them for sanctions Limit on Depos: - 10 depos per side - one per person - Can’t depose someone twice w/o court permission

Answer 22

- Written questions/statements - only to a PARTY!! - 25 per party

Answer 23

Party can request production of documents in other sides possession control or custody - Papers - photographs

Answer 24

Want other party to submit to a physical or mental exam - Must be an issue in case - Court order - Good cause

Answer 25

Sanctions (least to greatest) - fees/costs for time from other side - Facts to be established - Dismiss an action - Hold you in contempt All discovery is admissible at trial!!!!!

Answer 26

(1) Conference of the parties (MUST) - Parties must meet to talk about the case, settlement, and talk about discovery plan (submit to court) (2) Scheduling Conference (MUST) - Must have conference to limit time - Must issue scheduling order within 90 days of filing complaint (3) Final Pre-Trial Conference (MAY) - Judge may have one If they have one -> must - issue pre-trial order - Only modified to prevent manifest injustice

Answer 27

- Can be granted without notice to the other party - Trying to prevent immediate irreparable harm - Expires at time stated in order but cannot be longer than 14 days - If you wan’t them to be longer -> need to show GOOD CAUSE or get a preliminary injunction - MUST INCLUDE IN DETAIL THE ACTS RESTRAINED

Answer 28

- Need to give notice + hearing to restraining party - Irreparable injury will occur Likely to succeed on merits of case - Harm to moving party outweighs the other party - is longer than 14 days

Answer 29

- Needs to be at least 6 but no more than 12 - Parties can agree to less people - Verdict must be unanimous -> Unless parties agree otherwise - Demand must be made within 14 days of the last pleading - If there is a case with legal and equitable remedies - You try to legal issues first with the jury - Then the equitable claims with the court/judge

Answer 30

If all parties consent -> can withdraw If there is no right to a JT or the parties waive -> the judge can decide the case: - Will act as fact finder - States findings and conclusions - Mini trial to dispose of case

Answer 31

2 ways to dismiss a juror (1) For Cause: - There is a reason - Any bias or connection to the case -> must be dismissed *NO LIMITS TO HOW MANY PPL CAN GET DISMISSED* (2) Preemptory Challenge (without cause) - Can excuse for ANY reason ex: “I don’t like the guy i don’t want him on the case” - Each party has THREE challenges - Cannot be excluded based on race and/or gender Balanced Pool: - Jury has to represent the overall community

Answer 32

- Judge will give instructions If party wants to object to instructions -> must do it before jury goes into deliberate or retirees -> if not they loose it on appeal

Answer 33

Allowed: papers, exhibits and notes Not allowed: anything that was not in evidence

Answer 34

- Not allowed to make experiments or private study of docs outside the jury room - Cannot talk to non-juror about the trial - If they do -> could cause for misconduct and possibly a new trial - Outside information coming into the jury could call for a new trial Prejudicial information - It doesn't matter if an own juror had misconduct it only matters if its from an outside 3P

Answer 35

If a juror during jury selection failed to disclose a bias or a material question and the correct answer would have led to a challenge -> new trial could be ordered

Answer 36

can be raised ANYTIME - Lack of SMJ Must be raised in answer or other 12b motion or it is waived! - Lack of PJ - Improper Venue - Insufficient service of process

Answer 37

May be raised before or at trial - doesn't have to be raised in the 12b answer

Answer 38

Even if every fact is true -> nothing happened/ no real recovery - Insufficient facts - May be raised before or at trial Dismissal: with prejudice unless court says otherwise

Answer 39

- Before responding to a pleading - Within 21 days of service - For redundant, immaterial or scandalous material (don’t need it)

Answer 40

- Vague or ambiguous - Clean up some of the ambiguity + be more specific in your pleading

Answer 41

- No general dispute of material fact and Moving party is entitled to judgment as a matter of law I.e., no reasonable person could find for non-moving party - Can make it until 30 days after discovery - If denied -> cannot be appealed - Moving party can use discovery, affidavit, depos and holds the burden to show - There can be a partial summary jdm

Answer 42

- D can make a motion after p’s case or either party after both sides rest - there is no legal significant basis for a jury to reach a diff conclusion - A reasonable jury would not have enough evidence to find for a party

Answer 43

- Have to have made a JMOL to have a RJMOL - Make a JMOL before the case goes to jury -> then case goes to jury - After case goes to jury and within 28 days of verdict -> make a RJMOL - If judge thinks a reasonable jury would not choose this -> can overturn the verdict

Answer 44

Error clerical, fraud, oversight, misconduct - can be relieved from it 1 year deadline

Answer 45

(1) Prejudicial error — serious error that makes judgment unfair E.g., judge misstates law, gives wrong jury instructions (2) Prejudicial misconduct — of a party, attorney, juror, etc. E.g., jury considers evidence excluded at trial (3) Judgment against weight of evidence — jury erred in reaching verdict given the evidence before it (4) Newly discovered evidence (5) Excessive or inadequate damages — court cannot increase jury award (violates 7th Amend.); judge can order a new trial or offer remittitur if convinced the award is too high

Answer 46

- New trial for excessive damages - Unless party agrees to reduction of award - If don’t agree to it -> order new trial

Answer 47

- Adding more money Not in federal court

Answer 48

- Evidence was discovered after the end of the trial - Party was diligent when searching and could not find it - Evidence was material

Answer 49

Entered when one party fails to plead or defend - Don’t show up or don’t reply “give up”

Answer 50

P voluntarily dismisses the case if: - Before D serves answer or moves for summary judgment WITHOUT PREJUDICE Ones after that -> need court approval

Answer 51

Dismissed by court order if: - Failure to state a claim - Failure to follow a court order - Failure to prosecute *****Usually with prejudice****** Except: - Lack of PJ - Venue - Failure to join indispensable party

Answer 52

Judgement for Cause: - If you think the judge may be committing bias or an “appearance of bias” even if the judge thinks they can be fair -> parties can make motion to get him out - can also be waived by both parties Specific Grounds: Must be removed if: - Judge has personal knowledge of facts - Judge acted as a lawyer with a lawyer who is on the case (conflict of interest) - Judge gave his opinion ab merits of case while acting as a judge - judge or immediate family has a financial interest in the outcome of case - Violation of due process of one of the parties

Answer 53

(1) Same two parties litigating again Or anyone in privity (Employer v employee Buyer v seller) (2) same t/o (3) There was a judgment on the merits Does not apply to if case is dismissed for: - Lack of jrd - Improper venue - Settlement Even if law changes and now a loss means you can win -> still cannot bring the suit again

Answer 54

(1) Issue must be actually litigated & decided does not apply if: - settlement - default judgment (2) Issue must be necessary to the judgment (3) typically three ppl involved (new P or new D)

Answer 55

(1) Isa sues robby - isa loses now nat wants to sue robby -> ok NEW PERSON IS ALLOWED TO SUE B/C OF DUE PROCESS Same D’s - Diff P’s (2) Defensive use (1) Isa V robby - isa loses (2) Isa v Mik Not allowed!! Mik can stop isa from suing Same P -> Diff D (3) Offensive use Isa v Robby (ISA WINS) Nat v Robby Not allowed! Nat cannot use isa winning to her benefit

Answer 56

One state must respect the other states judgments

Answer 57

Filed within 30 days of judgment

Answer 58

Must make objections at trial b/c if you don’t they are waived Putting court on notice to set up appeal later

Answer 59

Appellate Court: Reviews issues of laws Trial court: reviews facts

Answer 60

When the outcome would have been different No appeal if was harmless error

Answer 61

when there is a final judgment Not considered a FJ: - Interlocutory order - Order given before trial judmt

Answer 62

Not a FJ: - Lack of JRD - Improper Venue - Failure to Join an indispensable party - Suit with multiple claims (one is decided) - unless “no reason for delay” - Denial of summary judgment - New trial - Partial final judgment Considered a FJ: - Injunctions - Certification of class action

Answer 63

can be appealed (1) order determined the disputed question (2) resolves an issue that is totally separate from main issue (3) delay would cause irreparable damage

Answer 64

DeNovo - Issues of law Abuse of Discretion - Court mistake, relevance, admitting something wrong Clearly Erroneous - Issue of facts

Answer 65

- Choice of law - ONLY IN DIVERSITY CASES!!!! Examples: (1) Federal law v state law: Apply substantive state law; unless the issue is procedural then you apply federal law (FRCP or other fed rules) for ex: VENUE - SOL IS STATE LAW (2) State A v State B: Apply the law of the state where the court is sitting or being heard

Answer 66

- TRO - Demand for Jury Trial - Impleader

Answer 67

- time to answer the complaint or 12b response - amend or supplementing a pleading - responding to a counterclaim - Rule 11 Safe Harbor - motion to strike

Answer 68

- file RJMOL - new trial

Answer 69

- notice of removal and remand - return request for waiver of SOP - appeals - request for admission - summary judgment motion

Answer 70

- answer complaint or 12b motion if D waived SOP

Answer 71

- serve process after filing complaint - relate back - scheduling conference

Answer 72

- remove in a diversity case - motion for relief from jdmt