CIVIL PRO Flashcards
SJQ
When a federal court has jurisdiction over a claim arising under federal law, the court may exercise supplemental jurisdiction over an additional state law claim that arises out of a “common nucleus of operative fact.”
Pj
Answer choice A is correct. Rule 4(k)(2) is generally used for non-U.S. residents who have contacts with the Unites States generally, but not with any one state in particular. Under this Rule, a federal court may exercise personal jurisdiction over a foreign defendant, even though the court would not otherwise have personal jurisdiction over the defendant due to the application of the “minimum contacts” test to the defendant’s contacts with the forum state. In order for this rule to apply, the plaintiff’s claims must be based on federal law. In addition, the exercise of personal jurisdiction over the defendant must be consistent with the United States Constitution and the laws of the United States. In other words, the defendant must have sufficient contacts with the United States as a whole to justify the exercise of personal jurisdiction over the defendant
SERVICE OF PROCESS
Each state has their own permissible methods. If the court is a federal court and the defendant is an individual, then anyone who is at least 18 years old and not a party can serve the individual using one of the following four methods (remember the mnemonic “SAID”):
(1) state law methods: use the state law methods where the court sits or where the defendant is served,
(2) agent: serve an agent of the individual,
(3) individual: serve the individual directly, and
(4) dwelling: leave the summons at the individual’s dwelling with someone of suitable age and discretion who lives there.
If the court is a federal court and the defendant is a corporation, then the same state method rules apply, with the additional option of serving an officer or managing agent authorized to receive service.
SERVING ANSWER
A defendant has 21 days after being served with the complaint and summons to serve an answer unless the defendant responds by filing a pre-answer motion under Rule 12. An answer generally must be served on plaintiff’s attorney if the plaintiff has an attorney. Service of an answer may be made by leaving it with a person in charge at the attorney’s office. The answer must also be filed with the court clerk within a reasonable time after service. Here, the next day would clearly fall within a reasonable time.
standard of review by the appellate court
- A trial judge’s decision to grant a summary judgment motion is a legal ruling.
As a legal ruling, the appropriate standard of review by the appellate court is DE NOVO - The abuse of discretion standard for appellate court review of a trial judge’s ruling is appropriate when the ruling is a matter over which the trial judge has discretion, such as whether evidence is admissible or sanctions should be imposed.
- A trial court’s findings of fact, including a master’s findings that have been adopted by the court, are subject to review under the “clearly erroneous” standard.
When a trial judge gives an erroneous jury instruction to which the adversely affected party failed to make a timely objection, the appellate court may nevertheless consider the matter if the mistake constitutes a plain error that affects the party’s substantial rights;
appeal - interlocutory order
In general, a federal court of appeals has jurisdiction over appeals from the final judgments of the district courts. Most interlocutory orders, such as the denial of a summary judgment motion, a motion to dismiss, or the granting of a new trial motion, are not immediately appealable because such an order is not a final judgment. Court’s denial of - dismiss for lack of subject matter jurisdiction is such an interlocutory order
waiver
The federal rules specifically provide that waiver of service does not waive any objection to personal jurisdiction or to venue.
7th Amendment - right to jury trial
- is only applicable to federal courts and not to state courts. State law determines whether parties have a right to a jury in state court.
Venue rule and exception
In general, venue in a federal civil action is proper in (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located.
—- A defendant that is an entity with the capacity to sue and be sued, regardless of whether incorporated, is deemed to reside in any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question.
the key issue for a voluntary dismissal without court approval
A plaintiff may dismiss an action without court approval or the agreement of the other parties prior to the service of an answer or summary judgment motion.
A motion to dismiss for lack of personal jurisdiction is not a summary judgment motion
the key issue for a voluntary dismissal without court approval or the other parties’ consent is whether the other parties have filed a responsive pleading or a summary judgment motion. The filing by another party of a motion to dismiss, unless the motion is treated as a summary judgment motion, does not prevent the plaintiff from dismissing the action. This is the case regardless of whether the other party’s motion is likely to be successful.
joinder
Tortfeasors facing joint and several liability are not considered necessary parties.
instructions - jury trial
Before the parties’ closing arguments, the court must inform the parties of the jury instructions it proposes to give and provide the parties with the opportunity to object to such instructions on the record and out of the presence of the jury. When a party has submitted proposed jury instructions, the court must also inform the party of the court’s actions with regard to such instructions.
Both alternative and inconsistent defenses may be alleged in an answer
Both alternative and inconsistent defenses may be alleged in an answer
TRO
A TRO may issue without notice to the adverse party if (i) the moving party can establish, under written oath, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition; and (ii) the movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.
Discovery- insurance agreement
Unless otherwise agreed by stipulation or ordered by the court, each party must provide to the other parties for inspection and copying, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. Accordingly, the defendant is required to make the insurance agreement available to the plaintiff even if the plaintiff does not ask for it.
