Civil Procedure Flashcards
Statute of Limitations in Federal Question Cases
In a federal question case, the action is deemed commenced for statute of limitations purposes when the complaint is filed with the court. In diversity cases (not federal question cases), the Supreme Court has held that the state rule for determining when the action is commenced applies. Thus, depending on the state rule, an action may be commenced for statute of limitations purposes when process is served on the opposing party. However, the federal rule (as described above) applies in federal question cases. The choice providing commencement when either the complaint is filed or process is served on the opposing party, depending on the law of the state in which the federal court sits is incorrect; this essentially states the rule when subject matter jurisdiction is based on diversity of citizenship. The choice providing for commencement when the complaint is filed, if service of process occurs within a specified timeframe is incorrect. Some states have such dual provisions, in that the date that the complaint is filed is used when service occurs within a certain timeframe after filing, but if that timeframe for service is exceeded, the date of service is used. But that is not the rule in federal question cases.
Appeals of Injunctions
federal law permits appeal of orders denying an injunction. Interlocutory orders denying an injunction may be appealed in the federal court system. [28 U.S.C. §1292(a)] This constitutes an exception to the general rule that interlocutory orders are not appealable because they are not final.
Standard for motion for new trial in diversity case when based on excessiveness of the verdict:
In a diversity case, federal trial courts are required to apply a state law standard when considering a motion for a new trial based on the excessiveness of the verdict.
Federal trial courts may neither use a federal law standard, nor choose a state or federal law standard in the court’s discretion.
To receive a jury trial, a party generally must:
Under Rule 38, to receive a jury trial a party must file a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue. Otherwise, the right to a jury trial generally is deemed waived. Note, however, that the Supreme Court has held that, in the absence of compelling reasons to the contrary, a court should grant relief from the waiver if the issue is normally tried by a jury.
Amendments to Complaint
The court should allow the amendment. An issue not raised by the pleadings is treated as if raised in the pleadings if it is tried by the parties’ express or implied consent. In such a case, a party may move-at any time, even after judgment-to amend the pleadings to conform them to the evidence and to raise the unpleaded issue.
Default Judgment Procedure - clerk
On request of the plaintiff, supported by an affidavit as to the amount due, the clerk may sign and enter judgment for that amount and costs against the defendant if: (i) the plaintiff’s claim against the defaulted defendant is for a sum certain; (ii) the default was entered because the defendant failed to appear; (iii) the defaulted defendant is not an infant or incompetent person; and (iv) the damages amount requested is not greater than the amount requested in the complaint.
Judge or Jury? for legal/equitable claims
If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury’s finding on fact issues will bind the court in the equitable claim.
