Civil Procedure Flashcards
Does failure to make proof of service affect the validity of the service?
No
Where is venue proper?
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
What happens if an affirmative defense is not put in an answer?
It is deemed waived
For motion for failure to state a claim and motion for summary judgment, when can affidavits be considered?
For summary judgment not for claim failure
How many jurors must return a verdict?
Requires a 6 juror unanimous verdict, unless parties stipulate otherwise
What are two things federal courts will not have jurisdiction over
wills and domestic disputes
What is a bulge provision
(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.
Where can a defendant who is a nonresident of the US be sued?
Any district court
What happens if polling of jurors reveals a verdict is not unanimous?
A judge may either force the jurors to continue deliberations or order a new trial
How long do you have to file a renewed motion for judgment as a a matter of law?
28 days after entry of judgement
How many jurors should there be under federal law?
6-12
If a party can recover monetary damages, is injunctive relief appropriate?
No, they will not suffer irreparable harm in that case
How long do you have to demand a jury trial?
14 days after service of the last pleading directed to the issue that is sought to be tried by a jury.
Can you take a deposition before discovery conference?
No, unless you get leave of the court
What are the four requirements of a class action?
- Numerosity
- Typicality
- Commonality
- Adequacy (of reps)
When can you appeal a motion for a new trial?
You must wait until after the new trial to appeal
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?
Yes
How many class members must there be for the class action fairness act to apply?
100+
What happens if an appeal has been docketed and then a clerical mistake has been found from the trial court
the appeals court must approve fixing the mistake
How long do you have to file a motion for relief from judgment?
A reasonable time, but must be within 1 year following the entry of judgment
Are questions about burden of proof procedural or substantive?
Procedural under conflicts of law but substantive under erie
What happens if allegations of damages are not replied to?
They are the one thing not deemed admitted
For purposes of Erie, what are SOL?
substantive
If a party fails to include personal jurisdiction objection in answer have they waived it?
No they can amend within 21 days, otherwise they have waived it
Can a judgment as a matter of law can be made for a defense?
Yes
How many preemptory challenges does each party get in a civil case?
3
When must the plaintiff reply to an answer?
Only when the court orders them to do so. So no response is deemed a denial.
When can a motion for judgment as a matter of law be filed?
Anytime during a trial as long as the side with the burden has had an opportunity to present
Can a plaintiff file a third party claim against a third party defendant?
Yes, but the claim must fall under the court’s jurisdiction and relate to the same transaction or occurrence as the original complaint.
Under the federal rules, does service need to follow the federal rules?
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
If the district court certifies a decision, does the appellate court need to hear it?
No, but they may
How many days do you have to appeal a class certification order?
14 days
Is a preliminary injunction appelable?
Yes, immediately
Can you waive the need for proper service?
Yes, by showing up in court or stipulating to it
What happens when the court is not sure if something is substantive or procedural under Erie?
- Look at whether there is a conflict between state and federal law
- No conflict –> apply both law
- Conflict –> Will the failure to apply state law lead to different outcomes in state and federal court
- Yes –> state law, No –> Federal law
When is joinder of defendants proper?
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
Are defenses procedural or substantive?
The availability of them is procedural, the elements to prove them are substantive
Is a a certified final judgment of dismissal of a claim against one party when there are multiple parties immediately appealable?
Yes
When may a juror not participate in the verdict?
They may be excused for good cause (illness, family emergency, or misconduct). Otherwise all those selected to by on jury must participate.
Can an attorney trust what a client tells them and put it right into a pleading?
No, an attorney must make a reasonable inquiry into the facts that a client gives them before putting the facts in a pleading
Can a court impose attorney’s fees as sanctions?
Yes, but only when the party has made a motion for them
If an appeal of a class action certification is approved, what happens to the lower court proceedings?
They continue unless the district court or appeals court orders a stay
Reply letter doctrine
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.
Can service be made by a party?
No
Who must service on a corporation be done on?
Under federal rules an officer or agent, but state rules can say otherwise
How long do you have to make service after filing a complaint?
90 days
Collateral-order doctrine
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
For diversity purposes, what happens if a US citizen is domiciled in a foreign country?
There is no diversity because diversity requires the parties be from diverse STATES
Forum non conveniens doctrine
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
Can a party voluntarily dismiss a crossclaim, counterclaim, or third-party claim without consent from court or parites??
Yes either
before a responsive pleading is served OR If there is no responsive pleading, before evidence is introduced at a hearing or trial
What happens if an affidavit is attached to a motion to dismiss for failure to state a sclaim?
It makes the motion one for summary judgment
What law governs for right to a jury trial
Federal, because 7th amendment provides for it
This is true even when the court has diversity jurisdiction
How many interrogatories does each party get and how long do they have to respond?
25 interrogatories and 30 days to respond
Is an interrogatory objectionable because it asks for an opinion or contention that relates to fact or the application of law to fact?
generally no
How many depositions does either side get?
10
Can a party dispose somebody a second time?
No, unless the parties have stipulated to it or they get leave of the court
When can a court direct parties to attend a pretrial conference?
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.
When a defendant files a pre-answer motion, how long do they have to file their answer after notice on the motion?
14 days
Is a defendant being served while passing through enough for personal jurisdiction?
No
What standard are sanctions reviewed under by appellate courts
Abuse of discretion
What sanctions can a court order when evidence has been lost due to a party’s actions or negligence?
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
How long does a plaintiff have to amend their complaint once without leave of the court
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
What does a third party claim need to assert
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.
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?
No
When is a party a necessary party?
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.
If a potentially biased juror says they think they can make a fair decision, can they still be striked for cause?
Yes
For a class action what type of notice is required?
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
Does quasi in rem jurisdiction require minimum contacts of the defendant?
Yes
What is needed to sue a foreign defendant?
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.
If a defendant agrees to waive service, what is the date of service of process?
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.
To gain a new trial based on a juror’s response to a question during voir dire, what needs to be shown?
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.
Does claim preclusion apply to the rule that a plaintiff has to bring all claim arising from the same transaction or occurence?
Yes
Is a decision to appoint or not appoint a receiver immediately appealable?
Yes
Is the judge required to state findings or conclusions when ruling on a Rule 12 or summary judgment motion?
No
What is the standard of review for a court’s decision on the admission of evidence?
abuse of discretion
