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Law- Civil Procedure > Civ Pro Questions > Flashcards

Civ Pro Questions Flashcards

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1
Q

Rule 14- Impleader Elements

A
  1. non-party
  2. who is or may be liable to the defendant
  3. for all or part of the plaintiffs claim against them
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2
Q

Rule 15 Relation Back- Issue

A
  1. Law of statute of limitation allows relation back

2. T&O

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3
Q

Rule 15 Relation Back- Party

A
  1. period in rule 4m
  2. party to be brought in received notice of action and not be prejudiced in defending on the merits
  3. knew/should have known that action would have been brought against it but for a mistake concerning identity
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4
Q

Rule 19 Required Joinder of Party- Elements

A
  1. plaintiff cannot get complete relief unless absentee is joined
  2. absentee may be prejudiced if not joined
  3. defendant may be prejudiced if absentee not joined
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5
Q

Rule 20 Permissive Joinder of Parties

A
  1. transaction or occurrence; and

2. common question of law or fact

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6
Q

Rule 22- Interpleader

A

Claims that may expose a party to double or multiple liability

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7
Q

Rule 24- Intervention- of Right

A
  1. Right to intervene via fed. statute

2. interest may be harmed without joinder

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8
Q

Rule 24- Intervention- Permissive

A
  1. Right to intervene via fed. statute

2. claim or defense has one common question of law or fact.

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9
Q

Rule 26- Discovery- Tools

A
  1. Depositions
  2. Interrogatories
  3. Request to Produce
  4. Medical Exam
  5. Request to Admit
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10
Q

Rule 41- Voluntary Dismissal of Actions

A
  1. before opposing party serves an answer or a motion for SJ
  2. w/permission from all parties
  3. effect: w/o prejudice unless claim previously dismissed
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11
Q

Rule 50- JMOL

A
  1. Fully heard
  2. during jury trial
  3. reasonable jury would not have a legally sufficient evidentiary basis to find for the other party
  4. opposing side has to have presented their case
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12
Q

Rule 50- RMJMOL

A
  1. Fully heard
  2. during jury trial
  3. reasonable jury would not have a legally sufficient evidentiary basis to find for the other party
  4. no later than 28 days after entry of judgment.
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13
Q

Rule 56- Summary Judgment

A
  1. there is no genuine dispute as to any material fact; and

2. the movant is entitled to judgment as a matter of law

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14
Q

Matthews Test

A
  1. Private interest that will be affected by official action
  2. The risk of erroneous deprivation through the procedures used & probably value of additional steps/safeguards
  3. Government interest, function involved and fiscal & administrative burdens
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15
Q

Rule 8- Claim for Relief

A
  1. Statement of court jurisdiction
  2. Short & plain statement of claim showing entitled to relief (Twombly, Iqbal, Rule 9(b) & 9(g))
  3. Demand for relief sought (damages, injunction, etc.)
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16
Q

Twombly & Iqbal

A
  1. Court ignores conclusions of law
  2. Must plead facts supporting a plausible claim
  3. Court uses exp. & common sense to decide plausibility
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17
Q

What justifies Sanctions

A
  1. proper purpose
  2. basis in law
  3. basis in fact
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18
Q

Rule 26- Discovery Initial Disclosures

A
  1. General info- contact info - name, address, phone # of subjects
  2. Copy or location of docs, ESI, and tangible things
  3. Computation of damages
  4. Any applicable insurance policy
    - Timing:
    - within 14 days of sched. conf. (existing parties)
    - within 30 days of being served (added parties)
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19
Q

Rule 26- Scope of Discovery

A

Parties may obtain any non-privileged matter that is relevant to any partys claim or defense- Exceptions- privileged material and work product (trial prep. materials)

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20
Q

Jury Trial- elements

A
  1. Look at remedy desired to determine if law or equity claim- Damages- legal/Injunction equity
  2. What does the remedy do? - equity goes to the judge/ law goes to jury
  3. Mixed goes to jury for legal, then judge rules on equity
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21
Q

Summary Judgment- Moving Party has Burden of Proof

A

Must prove every element of each claim to be awarded SJ To defeat: Only one element has to be disputed to show genuine issue of material facts -e.g. 30 priests

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22
Q

Summary Judgement- Moving Party does not have Burden of Proof

A

Show absence of evidence for opposing partys claim

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23
Q

Rule 50- New Trial Ruling Requirement

A

If a court rules on a RJMOL motion, it must also conditionally rule on any motion for new trial.

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24
Q

Claim Preclusion

A
  1. A valid final judgment on the merits- Everything except decisions based on procedure, Jurisdiction, Venue, Indispensable party, rule 19 joinder
  2. Same claimant against same defendant
  3. Same claim (cause of action)
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25
Q

Issue Preclusion

A
  1. Valid final judgment
  2. Had to be actually litigated
  3. Essential to the judgment
  4. Used against whom? -May be asserted against same parties or party in privity from previous case
  5. Mutuality rule- used by whom?- Old rule- only someone in the prior case. New rule- non-mutual offensive/defensive CI.
26
Q

Triggers of Due Process

A
  1. Liberty Interest
  2. Property Interest
  3. Grievous Loss
27
Q

What satisfies Due Process

A

Right to be heard:

  1. in a meaningful time (before deprivation occurs)
  2. in a meaningful manner (appropriate for the circumstances)

Goldberg vs. Matthews tests (evidentiary hearing vs. written)

28
Q

Time to serve a Rule 12 responsive pleading?

A

If in D’s answer or an answer to a counter/cross claim= 21 days

29
Q

Which are the waivable 12(b) motions if not made in the first responsive pleading (either motion or answer)?

A

12(b)(2)- Personal Jurisdiction
12(b)(3)- Venue
12(b)(4)- insufficient process
12(b)(5)- insufficient service of process

30
Q

What criteria are used to determine whether to grant a 12(f) motion to strike

A

Immaterial, impertinent, or scandalous material

31
Q

Which 12(b) motions are you able to use through trial?

A

12(b)(1)- This is never waivable
12(b)(6)- usable through trial
12(b)(7)- usable through trial

32
Q

Rule 11 Requirements

A
  1. Signature- you can’t forget this
  2. Representations to the court- attorney certifies to the best of their knowledge, info. & belief after an inquiry reasonable under the circumstances that:
    a. paper is filed for proper purpose
    b. claims/defenses/contentions have a basis in existing law or seeks to establish new law or modify or reverse existing law
  3. contentions have or likely will have evidentiary support
  4. any denials are warranted based on evidence, reasonable belief, or lack of info.
33
Q

Rule 11 Sanctions

A
  1. can be imposed on any attorney or firm
  2. served on the other party and they are given 21 days to withdraw the offending paper
  3. Penalty- not necessarily monetary
  4. court must follow rules to do this
34
Q

Rule 9- Special Pleadings- Additional Pleading Standards

A

9(b)- Fraud or Mistake- give particularity

9(g)- special damages- must be plead with specificity

35
Q

Rule 70- Contempt- difference between Civil/Criminal

A

Civil- used to compensate or coerce; if court is wrong, you won’t be liable
Criminal- to vindicate the authority of the court; even if court is wrong, you may still be liable
The enforcement is what categorizes crim/civil

36
Q

Transaction or Occurrence Standard

A
  1. Common issue of fact and law
  2. Substantially the same evidence
  3. Logical relation between claims (series)
37
Q

Res Judicata ‘Prevailing Party’ Terms

A
  1. if P prevails, claim is ‘merged’ into judgment

2. if D prevails, claim is ‘barred’ by earlier adverse judgment

38
Q

3 Responses in Answer

A
  1. Admit
  2. Deny
  3. claim to lack sufficient information
39
Q

Rule 26(a): Expert Witnesses

A

Testifying experts:if paid/professional, submit a written report
-90 days before trial or 30 days after other party’s disclosure if solely to rebut their witness

40
Q

Rule 26(b)(3): Trial Prep. Materials

A

Work Product rule

  • no discovery of docs done in prep. for trial unless: otherwise discoverable and can show substantial need and can show undue hardship in getting equivalent info
  • protect attorney thoughts/mental impressions
  • overcome by showing ‘hardship’ then limited to items like witness statements- no mental impressions, conclusions, legal theories
41
Q

Rule 26(b)(5) & (c)- Privileged Info & Protective Orders

A
  • if withholding for privilege you must describe sufficiently to let pop. counsel assess withholding
  • if produced, disclosing party must notify pop. counsel must return, sequester, or destroy; take to court to resolve; disc. party must take steps to retrieve
  • Protective Order can be granted to avoid annoyance, embarrassment, undue burden, etc.
42
Q

Burden of Production

A

-burden of coming up with initial evidence

43
Q

Burden of Persuasion

A

-burden of persuading the finder of fact

44
Q

Summary Judgment- Material Fact

A
  • controlled by the substantive law

- elements of claim will determine whether fact is material

45
Q

Summary Judgment- Affidavits

A
  • evidence allowed for MSJ
  • based on personal knowledge
  • facts would be admissible in testimony
  • affiant is competent to testify
46
Q

Motion for Summary Judgment- the Trilogy

A

Matsushita- no genuine dispute as to a material fact standard; no rational trier of fact could find for n-m party

  • Anderson- Persuasion in MSJ- heightened burden at trial= heightened MSJ standard; persuasion to win
  • Scott- judges weighing evidence- viewed in light most fav. to non-moving party UNLESS record clearly contradicts; changes standard as apparently judges weigh evidence now
47
Q

Rule 41(a): Voluntary Dismissal

A

By P-

(1) w/o court order allowed before opp. party serves an answer or MSJ or when stipulated by both party
- effect is w/o prejudice unless the same claim has been dismissed before
(2) by court at P’s request
- if D has served counterclaim, OK as long as CC can stay for indep. adjudication

48
Q

Rule 41(b): Involuntary Dismissal

A
  • if P fails to prosecute or comply, D can move to dismiss

- unless otherwise stated, operates as an adjud. on the merits

49
Q

Rule 41(d): Costs

A

If P previously dismissed an action on same claim against same D, court may: order P to pay all or part of prev. action cost & stay proceedings until P complies

50
Q

Judgment as a Matter of Law: Galloway

A

Dissent sees demurrer & new trial as exceptions; majority view= they show 7th amend. tolerating proc. change

  • Dissent
    • not like demurrer: had JNOV if didn’t succeed
    • not like new trial: NT gives loser chance to produce new evidence
    • Directed Verdict= draconian/end of the road
51
Q

Rule 50(c): JNOV & New Trial

A

(1) if court grants JNOV, must also conditionally rule on new trial

52
Q

Rule 60: Relief from Judgment

construed very narrowly

A

(a) to correct clerical mistake or one from oversight
(b) grounds: 1.misake, neglect 2. newly disc. evidence not avail at trial, 3. fraud by opposing party, 4. judgment is void or satisfied, 5. any other reason justified

53
Q

Rule 65(a): Preliminary Injunctions

A

(1) must give notice to party adversely effected

(2) may consolidate hearing w/trial; any admissible evidence becomes part of trial record

54
Q

Rule 65(b): Temporary Restraining Orders

A

(1) May use w/o warning if specific facts in affidavit or verified complain show irreparable & immediate harm that will result before adverse party can be heard & attorney verifies attempt to give notice
(2) expires after 14 days unless the court extends
(3) if ordered w/o notice, hearing must be at soonest possible date
(4) adverse party can move dissolve w/2 days notice

55
Q

Rule 65(d): Injunctions

A

(1) Content/Scope
- must have reasons why issued
- terms specifically stated
- detail of acts required or restrained
(2) binds the following
- actual notice of injunction- parties, their agents, employees, etc., other people in active concert w/ above

56
Q

Injunctive Relief: Basics

A
  • applies when $ damages are inadequate
  • in pleadings or in motion
  • specific performance or forebearance of an act
  • reformation, recession, injunction, TRO
  • gives no jury trial right
  • need good argument why damages isn’t enough
57
Q

3 Elements of a Rule 19 Party

A
  1. is the party necessary?
  2. can the party be joined?
  3. is the party indispensable (requiring dismissal)
58
Q

Rule 19- Elements to help decide to dismiss

A
  1. prejudice to the existing parties
  2. ability to alleviate that prejudice through the judgment or other means
  3. the adequacy of the judgment without the absent party
  4. plaintiff’s ability to get relief if the case is dismissed
59
Q

Rule 59- New Trial & Altering/Amending a Judgment

A

After a jury trial- for any reason which a new trial has been granted by a federal court.
After a nonjury trial- for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

60
Q

Corporations Residence (diversity jurisdiction)

A
  1. State of incorporation

2. ‘Nerve Center’- place where the corp. actually ‘directs, controls, and coordinates its activity’

61
Q

United Mine Workers v. Gibbs

A

Supplemental (pendant & ancillary) jurisdiction is OK when:

  1. “Common nucleus of operative fact”
  2. Two claims would normally be tried together

Codified in sec. 1367. Had the effect of broadening federal jurisdiction.

62
Q

Section 1367 (a)

A

Gives supplemental jurisdiction in diversity claims if:

  1. Claim is so related as to form the same “case or controversy” as federal issue.

Law- Civil Procedure (4 decks)

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