Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Prep Questions + Rule of Law > Civil Procedure > Flashcards

Civil Procedure Flashcards

You may prefer our related Brainscape-certified flashcards:
Civil Procedure 1L flashcards MBE flashcards MPRE flashcards
1
Q

jurisdiction

A

the power of the court

a court must have proper jurisdiction over the subject matter and jurisdiction over the person in order for any judgment it issues to be binding upon the parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

subject matter jurisdiction

A

state courts have general jurisdiction

federal courts have limited jurisdiction
- each claim brought to federal court must have an independent basis for jurisdiction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

when does a federal court have jurisdiction?

A

if the claim rises under federal law

is created by state law but depends on a substantial federal question
- this includes: constitution and treaties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

diversity jurisdiction

A

complete diversity of citizenship
AND
over 75K in controversy

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

what does complete diversity mean??

A

no single plaintiff may be a citizen of the same state as any single defendant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

how is citizenship determined?

A

by domicile

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

how is a corporations citizenship determined?

A

it is a citizen of its state of incorporation and a citizen of a state where its principal place of business is located.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

how is a partnership citizenship determined?

A

a citizen of every state where its members are a citizen.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

aggregation of claims in federal court to meet diversity

A

a claimant may aggregate claims against a SINGLE defendant but not against MULTIPLE defendants.

multiple claimants cannot aggregate claims to meet the 75K min.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

supplemental jurisdiction

A

fed court has discretion to consider a pure state law if there is a common nucleus of operative facts between the state law claim and the federal claim.

if fed claim is based on diversity– ONLY claims involving diverse parties may be added provided they arise from a common nucleus of operative facts
- do not have to = $75K in controversy

if one claim is based on a federal question then the state law claim with non-diverse parties may be brought under supplemental jurisdiction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

who can remove a case to federal court and how?

A

Defendants in state court can remove an action to the federal court that geographically embraces the state court if:

  • the federal court would have jurisdiction
  • all defendants consent
  • notice of removal is filed within 30 days of the service of the complaint
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

when can a defendant remove the case to federal court?

A

basis is diversity of citizenship:
- no removal is allowed if any defendant is a citizen of the state where the action is pending

basis is federal question:
- this rule does not apply

basis is defendant’s defense is federal-law based defense:
- this rule does not apply

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

remand

A

when federal jurisdiction does not exist and the Plaintiff wants the claim back to state court

must be done within 30 days from the filing of the notice of removal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

personal jurisdiction

A

exists if the court has:

in personam jurisdiction over the parties

in rem jurisdiction over property that is subject to the claim

quasi in rem jurisdiction over property that is attached to satisfy judgment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

when must objections to personal jurisdiction be brought?

A

in the first responsive pleading or they will be waived

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

what is in personam jurisdiction?

A

exists when a person is located within the state by either domicile or service

if D is served while in the forum state, jurisdiction exists even if his present is temporary and even if his presence is unrelated to the claim

if presence is due to FRAUD, FORCE or PARTICIPATION IN ANOHER JUDICIAL PROCEEDING, service is not valid

if the D consents to jurisdiction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

consent for service can be done by:

A

implied
- state has a substantial interest in regulating nonresidents in a particular in-state activity

express

waived

  • if D fails to raise the defense of lack of opersonal jurisidction in an answer or first responsive pleading
  • not waived if D appears in court to contest jurdicstion
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Long-arm jurisdiction

A

specific jurisdiction over the defendant who does specific activities enumerated in the statute

applies when:

  • D transacts business within the state
  • D enters contracts within the state
  • D committed the act in the state
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

in rem jurisdiction

A

based on the parties interest in a particular piece of property located within the state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

quasi in rem jurisdiction

A

actions involving attachment of real or personal property as a part of the relief

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

service of process

A

when the D is served with a summons and a copy of the complaint

not required for an action to start

must occur within 120 days of the filing of the complaint

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

what are the proper methods of service?

A 
abode service 
waiver
agent service
state methods 
personal service
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

if D argues that service of process was insufficient, they must….

A

raise the defense in its first responsive pleading or those defenses will be waived

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

venue

A

limit on a plaintiff’s choice of where to file

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

venue is proper where…

A

any defendant resides, if all D reside in that state

federal district:
-a substantial part of the claim arose
OR
-where the property is located

where the defendant can be found if there is no other district in which the action may otherwise be brought

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

if the venue is improper what can D do?

A

file a motion to dismiss based on improper venue in the first responsive pleading

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

motion for transfer

A

if D prefers a different venue then the remedy is to file a motion to transfer

BASED ON FORUM NON CONVENIENS

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

FORUM NON CONVENIENS

A

for the convenience of the parties and witnesses and in the interest of justice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

complaint requirements

A

must contain sufficient facts to place the adversary on notice of plausible claims

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

complaint

claim for relief must include….

A

short and plain statement of the jurisdiction

statement of ca claim that would entitle the claimant to relief

demand for relief

31
Q

after the complaint has been filed and served what must the D do?

A

file a responsive motion or answer

has 21 days from the date of service of the complaint to file

32
Q

what are the Rule 12(b) defenses?

A

lack of personal jurisdiction

insufficient service of process or insufficient process

improper venue

failure to state a claim

failure to join an indispensable party

lack of subject matter jurisdiction
- can be raised at any time and can be raised by the court

33
Q

When are Rule 12

(b) defenses to be used?

A

must be filed within the first responsive pleading

34
Q

Answer

A

must deny or admit to every allegation in the complaint

must include any previously asserted 12(b) defenses and all affirmative defenses

35
Q

Rule 8(c)(1) affirmative defenses

A

accord and satisfaction

arbitration and award

assumption of risk

contributory negligence

discharge in bankruptcy

duress

estoppel

failure of consideration

fraud

illegality

injury by fellow servant

laches

licenses

payment

release

res judiciata

SOF

statute of limitations

waiver

36
Q

when can a plaintiff amend their complaint?

A

within 21 days of service upon the D

after 21 days: must file a leave to amend

37
Q

if P wishes to add a new claim to the complaint when amending their complaint then….

A

it relates back to the date of a timely-filed complaint if the new claim derives from the same transaction or occurrence

38
Q

if P wishes to add a new party to the complaint when amending their complaint then….

A

relation back applies only if the amendment derives from the same transaction and the new party acquired knowledge within 120 days of the earlier filed complaint.

39
Q

joinder of parties

A

P may join parties to the same lawsuit if the claims involving those parties derive from the same transaction.

P must join indispensable parties if it would be prejudiced to any parties right to a fair trial

40
Q

joinder of claims

A

P may join as many claims as they have against the D

do not have to have any connection

41
Q

what are the 3 different ways a 3rd party can join a lawsuit and bring claims?

A

Impleader

interpleader

intervention

42
Q

impleader

A

defendant may bring a 3rd party if that party may be liable to defendant for all or part of Defendants liability to P

43
Q

interpleader

A

a suit pleaded between two parties to determine a matter of claim or right to property held by a third party.

44
Q

intervention

A

a non-party moves to enter into a lawsuit

45
Q

counterclaim

A

D can file against P

if it arises from the same occurrence then it must be brought in the same claim

either:
manadatory
OR
compulsory

46
Q

mandatory counterclaim

A

failure to bring results in a waiver

47
Q

permissive counterclaim

A

when it seeks to join claims that do not arise from the same occurrence

failure to bring does not result in a waiver

48
Q

cross-claims

A

may be brought by any party against any co-party when the claim arises out of the same transaction as the original claim or counterclaim.

49
Q

class actions

A

actions where the names plaintiff represents a class of commonly-situated absent plaintiffs.

50
Q

class-actions

C
A
N
T

A

commonality
- common issues of fact or law

adequacy
- plaintiff must fairly represent the class

numbers
-at least 40

typicality
-the claims of the plaintiff are typical of the class

51
Q

when is a court less likely to gran class certification?

A

if multiple state laws are involved and individual claims require separate investigation

52
Q

discovery

A

includes:

mandatory & traditional

53
Q

mandatory forms of discovery

A

required within 2 weeks of the initially discovery conference

duty to supplement mandatory disclosures or be subject to exclusion of that evidence at trial

mandatory disclosures are:

  • supporting witnesses
  • supporting documents
  • damages computation
  • relevant insurance coverage
54
Q

what are the traditional mens of discovery…

A

depositions

interrogatories

request for admissions

production of documents

request for physical or mental examination

55
Q

depositions

A

direct questioning of a party or witness under oath

56
Q

interrogatories

A

written questions that must be answered by another party in writing under oath within 30 days

only served on parties and not witnesses

57
Q

request for admission

A

any request that is admitted is deemed established for all purposes in the litigation

58
Q

production of documents

A

request to a party to produce document or property for inspection and copying

59
Q

request for physical or mental examination

A

only when a person’s condition is in controversy.

good cause is required

60
Q

work product doctrine

A

any material that an attorney or someone at their discretion prepared for litigation and was not in the ordinary course of business

all other forms of work product are discoverable only with a showing of substantial need and undue hardship

61
Q

jury trial

A

party has a constitutional right to a jury trial if its claim primarily seeks monetary damages

must file written demand within 14 days of service

62
Q

jury selection

A

each party receives 3 peremptory challenges used to strike jurors

63
Q

motion for summary judgment

A

filed within 30 days after the close of discovery

may be granted if there are no genuine issues of material fact and the movant is entitled tot judgment as a matter of law

movant must produce evidence to support each element of the cause of action

all inferences are drawn in favor of the non-movant

64
Q

judgment as a matter of law

A

AKA directed verdict

made at the lose of the opponent’s case

made when there is insufficient evidentiary basis that a reasonable jury could find for the non-moving party

65
Q

default judgment

A

entered against D when he failed to respond to the complaint in a timely manner

66
Q

renewed motion for judgment as a matter of law

A

formerly called a judgment notwithstanding the verdict, the motion is made within 28 days of judgment

67
Q

motion for a new trial

A

made within 28 days

granted in the court’s discretion if either:
-the errors at trial affected the parties’ trial rights
OR
-against the weight of the evidence

68
Q

claim preclusion

A

claim can not be relitigated if the claim arises between the same parties or those in privity with them

it arises out of the same transaction

the court determined the claim on the merits
AND
had proper subject matter jurisdiction

69
Q

collateral estoppel

AKA

Issue preclusion

A

an issue that cannot be relitigated

may only be used against someone who was not a party to the first action against one who was a party in the earlier suit

70
Q

when is a judgment eligible for appeal?

A

when a final order entered by a lower court

71
Q

when a party wanting to file an appeal they must…

A

file it notice of appeal within 30 days from the entry of the judgment

72
Q

final judgment

A

one that disposes of all issues as to all parties

if a judgment only resolves some of the claims then an interlocutory appeal can be requested

73
Q

motion for relief from a judgment

A

within 1 year of a judgment a party can file

requires: 
MEND 
Merit 
Equity 
New facts
Due diligence

Bar Prep Questions + Rule of Law (15 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions