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Bar Review > Civil Procedure > Flashcards

Civil Procedure Flashcards

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1
Q

Does failure to make proof of service affect the validity of the service?

A

No

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2
Q

Where is venue proper?

A

the district in which the cause of action occurred and, if all defendants live in the same state, any district in which a defendant lives

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3
Q

What happens if an affirmative defense is not put in an answer?

A

It is deemed waived

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4
Q

For motion for failure to state a claim and motion for summary judgment, when can affidavits be considered?

A

For summary judgment not for claim failure

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5
Q

How many jurors must return a verdict?

A

Requires a 6 juror unanimous verdict, unless parties stipulate otherwise

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6
Q

What are two things federal courts will not have jurisdiction over

A

wills and domestic disputes

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7
Q

What is a bulge provision

A

(applies to impleading third parties and joining necessary parties) A federal court has personal jurisdiction over a party who is served within a U.S. judicial district and not more than 100 miles from where the summons is issued, even if state law would otherwise not permit such service.

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8
Q

Where can a defendant who is a nonresident of the US be sued?

A

Any district court

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9
Q

What happens if polling of jurors reveals a verdict is not unanimous?

A

A judge may either force the jurors to continue deliberations or order a new trial

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10
Q

How long do you have to file a renewed motion for judgment as a a matter of law?

A

28 days after entry of judgement

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11
Q

How many jurors should there be under federal law?

A

6-12

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12
Q

If a party can recover monetary damages, is injunctive relief appropriate?

A

No, they will not suffer irreparable harm in that case

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13
Q

How long do you have to demand a jury trial?

A

14 days after service of the last pleading directed to the issue that is sought to be tried by a jury.

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14
Q

Can you take a deposition before discovery conference?

A

No, unless you get leave of the court

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15
Q

What are the four requirements of a class action?

A
  • Numerosity
  • Typicality
  • Commonality
  • Adequacy (of reps)
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16
Q

When can you appeal a motion for a new trial?

A

You must wait until after the new trial to appeal

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17
Q

If a state’s highest court rules on a law relevant to a current case while the case is in progress is the federal court bound to it?

A

Yes

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18
Q

How many class members must there be for the class action fairness act to apply?

A

100+

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19
Q

What happens if an appeal has been docketed and then a clerical mistake has been found from the trial court

A

the appeals court must approve fixing the mistake

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20
Q

How long do you have to file a motion for relief from judgment?

A

A reasonable time, but must be within 1 year following the entry of judgment

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21
Q

Are questions about burden of proof procedural or substantive?

A

Procedural under conflicts of law but substantive under erie

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22
Q

What happens if allegations of damages are not replied to?

A

They are the one thing not deemed admitted

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23
Q

For purposes of Erie, what are SOL?

A

substantive

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24
Q

If a party fails to include personal jurisdiction objection in answer have they waived it?

A

No they can amend within 21 days, otherwise they have waived it

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25
Q

Can a judgment as a matter of law can be made for a defense?

A

Yes

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26
Q

How many preemptory challenges does each party get in a civil case?

A

3

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27
Q

When must the plaintiff reply to an answer?

A

Only when the court orders them to do so. So no response is deemed a denial.

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28
Q

When can a motion for judgment as a matter of law be filed?

A

Anytime during a trial as long as the side with the burden has had an opportunity to present

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29
Q

Can a plaintiff file a third party claim against a third party defendant?

A

Yes, but the claim must fall under the court’s jurisdiction and relate to the same transaction or occurrence as the original complaint.

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30
Q

Under the federal rules, does service need to follow the federal rules?

A

No, service may be made by following state law for serving a summons in the state where the district court is located or in the state where service is made

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31
Q

If the district court certifies a decision, does the appellate court need to hear it?

A

No, but they may

32
Q

How many days do you have to appeal a class certification order?

A

14 days

33
Q

Is a preliminary injunction appelable?

A

Yes, immediately

34
Q

Can you waive the need for proper service?

A

Yes, by showing up in court or stipulating to it

35
Q

What happens when the court is not sure if something is substantive or procedural under Erie?

A
  1. Look at whether there is a conflict between state and federal law
  2. No conflict –> apply both law
  3. Conflict –> Will the failure to apply state law lead to different outcomes in state and federal court
  4. Yes –> state law, No –> Federal law
36
Q

When is joinder of defendants proper?

A

The right to relief arises out of the same transaction or occurrence AND
The relief is sought from them jointly, severally, or in the alternative

37
Q

Are defenses procedural or substantive?

A

The availability of them is procedural, the elements to prove them are substantive

38
Q

Is a a certified final judgment of dismissal of a claim against one party when there are multiple parties immediately appealable?

A

Yes

39
Q

When may a juror not participate in the verdict?

A

They may be excused for good cause (illness, family emergency, or misconduct). Otherwise all those selected to by on jury must participate.

40
Q

Can an attorney trust what a client tells them and put it right into a pleading?

A

No, an attorney must make a reasonable inquiry into the facts that a client gives them before putting the facts in a pleading

41
Q

Can a court impose attorney’s fees as sanctions?

A

Yes, but only when the party has made a motion for them

42
Q

If an appeal of a class action certification is approved, what happens to the lower court proceedings?

A

They continue unless the district court or appeals court orders a stay

43
Q

Reply letter doctrine

A

A document may be authenticated by evidence that it was written in response to a communication, so long as it is unlikely, based on the contents, that it was written by someone other than the recipient of the first communication.

44
Q

Can service be made by a party?

A

No

45
Q

Who must service on a corporation be done on?

A

Under federal rules an officer or agent, but state rules can say otherwise

46
Q

How long do you have to make service after filing a complaint?

A

90 days

47
Q

Collateral-order doctrine

A

a court of appeals has discretion to hear and rule on a district court order if it:

  • conclusively determines the disputed question
  • resolves an important issue that is completely separate from the merits of the action AND
  • is effectively unreviewable on appeal from a final judgment
48
Q

For diversity purposes, what happens if a US citizen is domiciled in a foreign country?

A

There is no diversity because diversity requires the parties be from diverse STATES

49
Q

Forum non conveniens doctrine

A

allows a court to dismiss an action—even if personal jurisdiction and venue are otherwise proper—if the court finds that the forum would be too inconvenient for parties and witnesses and that another, more convenient, venue is available.

HEAVY BURDEN for defendant

50
Q

Can a party voluntarily dismiss a crossclaim, counterclaim, or third-party claim without consent from court or parites??

A

Yes either
before a responsive pleading is served OR If there is no responsive pleading, before evidence is introduced at a hearing or trial

51
Q

What happens if an affidavit is attached to a motion to dismiss for failure to state a sclaim?

A

It makes the motion one for summary judgment

52
Q

What law governs for right to a jury trial

A

Federal, because 7th amendment provides for it

This is true even when the court has diversity jurisdiction

53
Q

How many interrogatories does each party get and how long do they have to respond?

A

25 interrogatories and 30 days to respond

54
Q

Is an interrogatory objectionable because it asks for an opinion or contention that relates to fact or the application of law to fact?

A

generally no

55
Q

How many depositions does either side get?

A

10

56
Q

Can a party dispose somebody a second time?

A

No, unless the parties have stipulated to it or they get leave of the court

57
Q

When can a court direct parties to attend a pretrial conference?

A

the court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement.

58
Q

When a defendant files a pre-answer motion, how long do they have to file their answer after notice on the motion?

A

14 days

59
Q

Is a defendant being served while passing through enough for personal jurisdiction?

A

No

60
Q

What standard are sanctions reviewed under by appellate courts

A

Abuse of discretion

61
Q

What sanctions can a court order when evidence has been lost due to a party’s actions or negligence?

A

the court may order measures no greater than necessary to cure the prejudice

This includes not allowing the party to introduce evidence on certain topics

62
Q

How long does a plaintiff have to amend their complaint once without leave of the court

A

a plaintiff may amend a complaint once as of right without seeking leave of the court or consent of the defendant if the amendment if made within 21 days of the service of the defendant’s answer

63
Q

What does a third party claim need to assert

A

LIABILITY

Third-party claims are claims that are made by a defending party against a nonparty for all or part of the defending party’s liability on an original claim.

64
Q

If a party decides in a prior action to not litigate an issue (just admit an allegation) will issue preclusion prevent them from arguing it in a different trial?

A

No

65
Q

When is a party a necessary party?

A

A party is considered necessary if the party’s absence would leave the existing parties subject to a substantial risk of multiple or inconsistent obligations.

66
Q

If a potentially biased juror says they think they can make a fair decision, can they still be striked for cause?

A

Yes

67
Q

For a class action what type of notice is required?

A

For a class action that is certified under Rule 23(b)(1) or (2), notice to the class members, other than the named representatives, is at the discretion of the court.

For a class action that is certified under Rule 23(b)(3), notice is the best that practicable under the circumstances

68
Q

Does quasi in rem jurisdiction require minimum contacts of the defendant?

A

Yes

69
Q

What is needed to sue a foreign defendant?

A

They need minimum contacts in the forum state OR in the US in general

While Rule 4(k)(2) provides for personal jurisdiction by a federal court when no state court can exercise jurisdiction over the defendant, it requires both that the claim against the defendant be based on federal law and that there be minimum contacts such that the exercise of personal jurisdiction in federal court is consistent with the laws of the United States and the United States Constitution.

70
Q

If a defendant agrees to waive service, what is the date of service of process?

A

If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service of process.

71
Q

To gain a new trial based on a juror’s response to a question during voir dire, what needs to be shown?

A

a party must demonstrate that a juror failed to answer honestly a material question on voir dire, and show that a proper response would have provided a valid basis for a challenge for cause.

72
Q

Does claim preclusion apply to the rule that a plaintiff has to bring all claim arising from the same transaction or occurence?

A

Yes

73
Q

Is a decision to appoint or not appoint a receiver immediately appealable?

A

Yes

74
Q

Is the judge required to state findings or conclusions when ruling on a Rule 12 or summary judgment motion?

A

No

75
Q

What is the standard of review for a court’s decision on the admission of evidence?

A

abuse of discretion

Bar Review (8 decks)

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