Civil Procedure Flashcards
Subject Matter Jurisdiction
What kinds of cases will federal courts refuse to preside over?
For historical reasons, even though the requirements for diversity of citizenship jurisdiction are satisfied, federal courts will not exercise jurisdiction over actions involving the issuance of a divorce, alimony, or child custody decree or probate proceedings. Subject matter jurisdiction based on diversity of citizenship is used for civil cases only, and it is not a basis for exercising subject matter jurisdiction over state criminal proceedings.
Subject Matter Jurisdiction
What’s the rule about Corporations wherein the United States is a large shareholder?
When a corporate party was incorporated by an act of Congress and the United States owns more than one-half of the corporation’s capital stock, it is treated as a federal agency that can sue or be sued on that basis in federal court.
Removal
If no federal question is involved and diversity does not exists at the time the action is commenced, is removal ever permitted?
Yes, if the nondiverse parties are thereafter dismissed from the action, there is complete diversity between the remaining parties, and not more than one year has passed since the case was commenced in state court.
Time Periods:
14 Days
- Expiration of TRO
- Time to file jury demand after last pleading directed to the jury triable issue is served
- Time to appeal class action certification or denial
Time Periods:
21 Days
- Time after service of complaint to answer the complaint or file a Rule 12 motion
- Time to amend the pleading once, as a matter of course, after its service or after responsive pleading or motion is served
- Time to withdraw pleading after a Rule 11 motion is served
Time Periods:
28 Days
- Time after judgment to file a renewed motion for judgment as a matter of law
- Time after judgment to file a motion for a new trial
Time Period:
30 Days
- Time for initial removal
- Time for remand
- Time to return request to waive service of price (add 30 days if outside the U.S.)
- Time for appeals
Time to File a Motion for Summary Judgment
A party may file a motion for summary judgment at any time until 30 days after the close of discovery.
Initial Disclosures:
Work Product
Under Federal Rule 26(a), parties must disclose all information that is “then reasonably available” unless the material is privileged or protected as work product.
When does a final judgment become enforceable?
Absent a court order, no execution on judgments is allowed for 30 days after entry except for injunctions or receiverships, which are not held up unless otherwise ordered by a court.
Service of Process
Generally, under the Federal Rules of Civil Procedure [Rule 4], service of process can be made by: (i) personal service, (ii) service left at the defendant’s usual place of abode with one of suitable age and discretion residing therein, or (iii) service upon an authorized agent of the defendant. Alternatively, service may be made under state rules or by mail under the waiver of service provision of Rule 4(d). A collateral attack is the name used to describe a defendant’s ability to challenge a default judgment where the defendant never appeared in the action at all. Default judgments that are either constitutionally or procedurally defective are subject to collateral attacks. Under Rule 4 of the Federal Rules of Civil Procedure, if no acknowledgment is made to a summons and complaint that was improperly served via first class mail, a defendant must be served according to the Federal Rules of Civil Procedure. If not, it is considered “procedurally defective” and is therefore subject to a collateral attack.
Court-Ordered Pretrial Conference
The Federal Rules give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement. Moreover, this conference is to be attended by at least one of the lawyers for each side who will actually be conducting the trial, and by any unrepresented parties. A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference. Additionally, the court must require the disobedient party or counsel to pay expenses incurred (including attorneys’ fees) by other parties unless the court finds that circumstances make such an award unjust.
When can a complaint be first-amended?
Federal Rule of Civil Procedure 15 states that leave of court (to grant motions to amend) is to be “freely given when justice so requires.” The rule does not provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice.
Trial of Legal and 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.
Common Question Class Action:
Opting Out
Members of a “common question” class action who did not opt out when notified of the pendency of an action may (if permitted by the court, in its discretion) opt out of a settlement of the class action. Therefore, it is incorrect that such members of a class may never or can always opt out of a settlement.
