Civil Procedure Flashcards
What are the three types of personal jurisdiction?
In personam; in rem; quasi in rem (close connection to property in forum)
A federal court can subject an individual to in person jurisdiction if the individual is (i) _______ in the forum state (and served with process therein), (ii) _______ in the forum state, (iii) conducts _______ and ______ business in the state such that the defendant is “essentially at home”, (iv) the defendant ______ to jurisdiction, or the defendant commits an act covered by the (v) ______-___ statute.
(i) present; (ii) domiciled; (iii) systematic and continuous; (iv) consents; (iv) long-arm
Constitutional Due Process requires that the defendant must have such (i) ______ ______ with the forum such that the exercise of personal jurisdiction is (ii) _____ and _________. Consider whether the defendant has (iii) _______ ____________ himself of the benefits and protections of the forum state.
(i) minimum contacts; (ii) fair and reasonable; (ii) purposefully availed
Constitutional Due Process requires actual (i) _____ to the defendant.
(i) notice
For a diversity case, every (i) _______ must be a diverse state citizenship from each (ii) _________ (“complete diversity”)
(i) defendant; (ii) plaintiff
For diversity action, the court must have complete diversity when the (i) _________ _________; there is an exception for (ii) _________.
(i) action commenced; (ii) interpleader
Unincorporated associations and LLCs have the citizenship of (i) _______.
Members.
For a class action, citizenship is the domicile of (i) _______ members.
(i) named
For (i) ___________ jurisdiction, there must be a claim with original jurisdiction, and the second claim must arise from a (ii) ______ _______ of operative facts as the original claim, such that they should be tried together.
(i) supplement; (ii) common nucleus
For $75,000, one plaintiff may (i) ______ claims against a single defendant, but one plaintiff may not (ii) _______ claims against multiple defendants, unless it is a joint liability claim. Several plaintiffs may aggregate claims against one defendant if they seek to enforce a (iii) ________ ______ or right.
(i) aggregate; (ii) aggregate; (iii) single title
Supplemental jurisdiction is available in diversity to permissively joined plaintiffs even if their claim does not exceed ___________
$75,000
A (i) ___________ counterclaim may invoke supplemental jurisdiction. A (ii) ________ counterclaim needs its own original jurisdiction.
(i) compulsory; (ii) permissive
To invoke federal question jurisdiction, the federal question must appear in the ________.
Complaint
In a federal question case, the federal court may hear a state law claim if it arises from a (i) ______ _________ of operative fact as the federal claim.
(i) common nucleus
Venue is proper in a federal district where (i) _____ defendant resides (if they are all residents of the same state), or where a (ii) ________ _______ of the events or omissions occurred (or where property is located).
(i) any; (ii) substantial part
For venue, an individual’s home is the district where he is (i) ___________; for a business entity, it is where they are subject to the court’s (ii) __________ jurisdiction.
(i) domiciled; (ii) personal jurisdiction
A transfer of venue based solely on (i) _________ carries the law of the transferor court (including choice of law), unless (ii) the transfer was ordered to enforce a ______ ______ clause.
(i) convenience; (ii) forum selection
If original venue is improper, the law of the (i) ________ court applies.
Transferee
In a diversity case, a defendant can remove to federal court if (i) ________ parties are dismissed. However, a case cannot be removed solely on diversity if (ii) _____ defendant is a citizen of the (iii) ____ state. The case must be removed within (iv) _______ months, unless the defendant can show the plaintiff acted in (v) ___ ____ to prevent removal.
(i) non-diverse; (ii) any; (iii) forum; (iv) twelve; (v) bad faith
If a federal question case is removed from state court, state law claims (i) ______ be (ii) ________ and remanded to state court.
(i) may; (ii) severed
A request for removal should be requested within (i) _____ days of the service of complaint. If a subsequent pleading makes the case newly removable, the clock restarts again for (ii) ______ days.
(i) thirty; (ii) thirty
Federally courts generally cannot use equitable powers to (i) ________ state court proceedings
(i) enjoin
A preliminary injunction requires (i) _______ to the adverse party, and the moving party must demonstrate that a lack of injunction will cause (ii) ______ ________ that outweighs nay harm to the non-moving party, and that the movant is likely to (iii) _______ on the _______.
(i) notice; (ii) irreparable harm; (iii) succeed on the merits
A temporary restraining order can be issued without (i) ______ to the adverse party
(i) notice
(i) ____________ counterclaims are those that arise out of the same (ii) ________ or _________, and must be pleaded
(i) compulsory; (ii) transaction or occurrence
Because a court cannot accord complete relief without an absentee party, the court has the power of (i) _______. If a court has personal jurisdiction over the party, and if inclusion will not destroy (ii) _______ _________ jurisdiction, the party must be joined.
(i) joinder; (ii) subject matter
A class action requires: (i) __________ class so that joinder is impracticable; (ii) ______ _________ or law or fact; (iii) that the ______ party’s interests are (iv) _________; that the named party will ensure fair and adequate (v) ____________ of absent members; and in equity, trying the case together is better than separate cases.
(i) numerousity; (ii) common questions; (iii) named; (iv) typical; (v) representation
All members are bound in a class action unless they _____-____.
Opt-out
A notice of (i) _______ is required in “common questions” suits so that members can opt-out.
(i) pendency
A notice of (i) ________ must be given to class members so that they can object at a (ii) _______ hearing.
(i) settlement; (ii) fairness
The court must approve a class action (i) _______ for it to bind, following a fairness hearing.
(i) settlement
The Federal Class Action Fairness Act allows for jurisdiction if any plaintiff is diverse from any defendant, the aggregated amount in controversy exceeds (i) ___ million, and there are at least (ii) ______ members in the class.
(i) $5 million; (ii) 100
For a shareholder derivative suit, the stockholder must have been an owner at the time of the (i) ___________
transaction
Even without a discovery request, a party must make (i) _______ disclosures, including the names of (ii) ________ who support claims or defenses and material that supports (iii) _______ or defenses, also (iv) _____ testimony and their reports, and the parties must make pretrial disclosures, including a list of (v) ________ to be called, (vi) __________ to be used, and (viii) ________.
(i) initial; (ii) witnesses; (iii) claims or defenses; (iv) expert; (v) witnesses; (vi) depositions; (vii) evidence
Generally, any (i) _______, (ii) non-_______ matter that is (iii) _________ to the needs of the case is subject to discovery.
(i) relevant, (ii) non-privileged; (iii) proportional
Privileged material, prepared in advance of trial, can only be called in discovery if there is a (i) _______ need to avoid (ii) ______ ________.
(i) substantial need; (ii) undue hardship
The adverse party may (i) __________ testifying (ii) ________, but may only depose consulting experts under (iii) _________ circumstances.
(i) depose; (ii) experts; (iii) exceptional
If a party learns that disclosures of discovery is materially (i) ________ or (ii) ________, he is required to (iii) __________.
(i) incomplete; (ii) incorrect; (iii) supplement
A motion to compel discovery must certify a (i) ____ _____ attempt to resolve the issue with the opponent.
(i) good faith
The Rule 26(f) conference is for ________ _______.
planning discovery
The Rule 16(b) conference is for ____________
scheduling
A civil trial must be at least (i) ______ juror and no more than (ii) _______ jurors.
(i) six; (ii) twelve
Any objection to a jury (i) _________ must be made before the jury retires.
(i) instruction
In a Judgment as a Matter of Law (directed verdict), (i) _______ is viewed in a light most favorable to the non-moving party, (ii) witness ________ is not considered, and the evidence must be such that a (iii) ____________ ________ would not have a legally sufficient basis to find for the party on that issue.
(i) evidence; (ii) credibility; (iii) reasonable jury
A party waives an appeal on the sufficiency of evidence if he neither files a (i) _________ or a motion for a (ii) ____ ______
(i) RJMOL; (ii) new trial
An appeal generally must be filed within (i) ______ days
(i) thirty
(i) ________ preclusion (res judicata) is a final judgment on the merits that bars (ii) _______ from asserting the same (iii) _______ in a later action.
(i) claim; (ii) claimant; (iii) claims
(i) _______ preclusion (collateral estoppel) binds a party and those in (ii) _________ in subsequent actions from retrying elements that were (iii) _______ and (iv) _______ to the prior judgment.
(i) issue; (ii) privity; (iii) litigated; (iv) esential
Courts more often allow issue preclusion to be used (i) _______. For (ii) _________ use, some states use a four-part test: are the issues (iii) ________; was there a (iv) ______ _______ on the _______; (v) did the defendant have a fair __________ to be ________; (vi) is the use of issue preclusion in this case ______ and ______.
(i) defensively; (ii) offensively; (iii) identical; (iv) final judgment on the merits; (v) opportunity to be heard; (vi) fair and equitable
For a compulsory joined party, or a 3rd party defendant, a court may exercise personal jurisdiction if the party is served within (i) ______ miles from the place where the summons was issued.
(i) 100
Modern Due Process requires that personal jurisdiction only be exercised where the defendant has (i) _______ with the forum ((ii) look for ______ ______ and that the defendant (iii) ________ anticipated being subject to the local court), that contact is (iv) _______ to the claim (unless there is general jurisdiction), and exercising PJ is (v) _______. Fairness means that the exercise of PJ will not offend the (vi) “_____ _____ of _____ _____ and substantial justice. Interests will be weighed in fairness. The Defendant must also receive (vii) _______ and have an (viii) ______ to be ______.
(i) contact; (ii) purposeful availment; (iii) reasonably anticipated; (iv) related; (vv) fair; (vi) traditional notions of fair play and substantial justice; (vii) notice; (viii) opportunity to be heard
If a alien has been admitted to the US for (i) _____ _________, and is (ii) _________ in the same state as the opposing party, there is no (iii) __________ jurisdiction.
(i) permanent residence; (ii) domiciled; (iii) diversity
In a derivative suit, the corporation is a nominal plaintiff, but the court will treat it as a (i) ______ under realignment according to interest for the purpose of determining if there is (ii) _______ jurisdiction.
(i) defendant; (ii) diversity
(i) ________ jurisdiction is (ii) _________ for the court (except for compulsory counterclaims).
(i) supplemental; (ii) discretionary
A (i) _______-claim may be asserted if it stems from the same (ii) ________ or ________, even if it does not have independent subject matter jurisdiction
(i) cross-claim; (ii) transaction or occurrence
Attorneys fees that may be recovered by (i) _______ or (ii) _______ may be included in the amount in controversy
(i) contract; (ii) statute
A co-plaintiff’s whose claim does not meet the amount in controversy may invoke (i) _______ jurisdiction if the claim arises under the same (ii) _______ of ______ ______, but such a claim cannot override required (iii) ________.
(i) supplemental; (ii) nucleus of operative facts; (iii) diversity
A compulsory counterclaim (same nucleus of operative facts) need not have (i) _________ grounds for jurisdiction, though a (ii) _______ counterclaim (unrelated) needs its own jurisdictional basis.
(i) independent; (ii) permissive
For Erie purposes, the following are always substantive: (i) statutes of ________; (ii) rules for _______ statutes of limitations; (iii) choice of ______; (iv) ______ of a claim or defense.
(i) limitations; (ii) tolling; (iii) law; (iv) elements
If the highest state court issues a decision on an issue after a federal court has made its determination, the decision of the (i) ______ court may be changed to conform to the new decision, up until the (ii) _______ of the final appeal.
(i) trial; (ii) disposition
Federal courts have exclusive jurisdiction over (i) _______, (ii) ______ and copyright cases, (iii) many cases where the US is a ________, (iv) actions against ______ ______ removed from state court to federal court; (v) _______ matters; (vi) _____ cases; (vii) ____ cases.
(i) bankruptcy; (ii) patent; (iii) party; (iv) foreign states; (v) postal; (vi) IRS; (vii) SEC
If there’s no venue where either (a) all defendants reside in the state or (b) a substantial part of the events took place, venue is proper where any (i) _______ is subject to personal jurisdiction
(i) defendant
Unlike an individual, whose venue is where he resides, a business entity can be sued in any venue where it is subject to the court’s (i) _______ _______.
(i) personal jurisdiction
To remove, (i) ____ defendant may be a resident of the state where the case was filed.
(i) no
If a plaintiff seeks to remand a case back to state court, the motion must be filed within (i) ______ days of removal.
(i) 30
If removal is possible, and there are multiple defendants, the defendants must (ii) ______ to removal
(ii) agree
Any person who is at least (i) ____ years old and not a party to the action may serve process.
(i) eighteen
Service must be completed within (i) ____ days of filing the complaint (court may extend for good cause)
(i) 90
If the defendant (i) _____ service, he generally has sixty days to respond. If he does not waive service upon request, he will become liable for the (ii) ______ of ______, unless he had good cause not to waive.
(i) waive; (ii) costs of service
Parties served in foreign countries may be served (i) as provided in an _______ _________, or in the absence of an agreement, as provided by the country’s (ii) ________ or as directed by a foreign official; or by (iii) personal service or _______, or (iv) by any method the court _______ (that is not prohibited by international agreement).
(i) international agreement; (ii) law; (iii) mail; (iv) orders
For (i) ______, (ii) _______, and (iii) _______ who enter a state to appear in another court action, the federal courts grant (iv) ______ from service of process.
(i) parties; (ii) witnesses; (iii) attorneys; (iv) immunity
For a TRO, the plaintiff must allege (i) ______ _____ in an affidavit, certify in writing the efforts she made to notify the adverse party and/or the reasons why the adverse party should not be (ii) ______, and provide (iii) ______ to pay for any damages incurred by the adverse party.
(i) irreparable harm, (ii) notified; (iii) security
A TRO can lasts for of (i) _______ days, but may be extended for (ii) ______ days. If it is extended beyond that period, it becomes an appealable (iii) ________ ______.
(i) fourteen; (ii) fourteen; (iii) preliminary injunction
A preliminary injunction is similar to a TRO, in that the movant must allege irreparable harm, but it is different in that the movant most show the potential harm (i) _______ harm to the defendant, the plaintiff must show he is likely to be (ii) _______ on the _______, and that the (iii) _______ _______ favors the injunction.
(i) outweighs; (ii) successful on the merits; (iii) public interest
A Complaint must state (i) ________ for jurisdiction, (ii) a _______ ______ of the claim showing that the pleader is entitled to relief, and (iii) a demand for _________ for _____. The claim must be (iv) ________
(i) grounds; (ii) short statement; (iii) judgment for relief; (iv) plausible
A defendant must answer within (i) ___ days of service, or (ii) _______ days if he waived formal service (days after the request for waiver was mailed). If a pre-answer motion is filed, the answer is due (iii) ______ days after the court’s ruling on the motion.
(i) 21; (ii) 60; (iii) 14
If a claim arises from the same (i) ______ or ______ as the plaintiff’s claim, it is a (ii) _________ counterclaim.
(i) transaction or occurrence; (ii) compulsory
A pleading may be amended within (i) _____ days of service. Thereafter, the party can seek leave from the court to amend.
(i) 21
On joinder the court asks, (i) _______ the party be joined (that party is necessary for complete relief), (ii) _____ the party be joined (without defeating jurisdiction), (iii) and _______ the action proceed (is another forum best?)
(i) should; (ii) can; (iii) should
Section 1335 Interpleader allows a party to add a 3d party defendant so long as there is diversity between any two competing claimants and the amount be > (i) ________.
$500
(i) _____ discovery disclosures must be made within (ii) ______ days after a discovery conference (Rule 26(f)), unless a different time is set by the court or by stipulation.
(i) initial; (ii) 14
Initial disclosures includes: (i) the ______, addresses, and telephone numbers of individuals likely to have information relevant to claims or defenses; (ii) copies of ___________ related to claims or defenses; (iii) a ______ of damages claimed by the parties; and (iv) copies of __________ agreements that my be applicable.
(i) names; (ii) documents; (iii) computation; (iv) insurance
Parties must disclose all information then (i) _____ available that is not (ii) ________ or (iii) _____-_____.
(i) reasonably; (ii) privileged; (iii) work-product
The disclosure of an expert and his report must be (i) _____ days before trial (unless otherwise noted)
90
Pretrial disclosures are due (i) _____ days before trial
30
If a party objects to pretrial disclosures, they must do so within (i) _______ days. If not made, the objection is waived, except if the evidence is irrelevant, prejudicial, or confusing under FRE 402 and 403.
(i) 14
In general, discovery may be had of any (i) ________ matter that is (ii) __________ to any party’s (iii) _____ or __________, and is (iv) ______ to the needs of the case.
(i) non-privileged; (ii) relevant; (iii) claims or defenses; (iv) proportional
Work product is made in (i) _______ of ______, and is discoverable only upon the showing of a (ii) _______ ____ to avoid (iii) ______ ______.
(i) anticipation of litigation; (ii) substantial need; (iii) undue hardship
A party may not seek discovery until after the (i) ______ conference
26(f)
A party who desires a jury trial must demand it within (i) ____ days after the filing of the last pleading directed to the jury-triable issue.
(i) 14
If a party fails to object to a jury instruction, the appeals court will hear the appeal only if the erroneous instruction was (i) _____ ______ that affected the party’s (ii) _____ ______.
(i) plain error; (ii) substantial rights
If a jury verdict is (i) _________ or (ii) ______, the judge may ask the jury to re-deliberate.
(i) inconsistent; (ii) inconceivable
A plaintiff may dismiss his action by notice without leave of the court before the defendant files an (i) ________ (or motion for summary judgment). Thereafter, the parties must seek leave of the (iii) _____
(i) answer; (ii) stipulate; (iii) leave
Summary judgment may be filed at any time until (i) _____ days from the close of discovery.
(i) 30
A renewed motion for a judgment as a matter of law must be filed within (i) ____ days of the judgment entry
(i) 28
A motion for a new trial must be filed within (i) _____ days of the judgment. A court may grant a new trial based on an (ii) _______ during the trial, or because the verdict is against the (iii) _____ of the evidence.
(i) 28; (ii) error; (iii) weight
In a bench trial, the judges ruling must be supported by findings of cats or law, either in (i) _______ or (ii) _____ in the record.
(i) writing; (ii) orally
A clerical error on a judgment may be corrected at (i) ____ time.
Any
A motion to amend judgment based on (i) ____ ______ that was not previously available, (ii) an intervening change in _______ law, (iii) a clear ______ of law or fact, or (iv) an issue of ______ justice must be made within (v) ______ days of order.
(i) new evidence; (ii) controlling; (iii) error; (iv) manifest justice; (v) 28
There are extraordinary grounds for relief of judgment, including mistake, newly discovered evidence (could not have been discovered vie due diligence, and did exist at trial), fraud of another party, or a prior judgment being vacated; these changes must come within (i) _____ Year.
One
An appeal may be taken by filing notice of appeal with the (i) ______ court within (ii) ______ days of entry of judgment.
(i) district; (ii) 30
An interlocutory appeal can be heard if the trial judge (i) _______ that there is a controlling issue of (ii) ______ to be decided, and the appeals court (ii) ______ to hear the appeal.
(i) trial; (ii) law; (iii) agrees
An order granting or certifying a class action can be appealed at the appellate court’s discretion within (i) _____ days of the entry of the order.
(i) 14
An order of (i) ________ from the appeals court compels the trial court judge to act, and an order of (ii) _______ prevents the trial court from acting
(i) mandamus; (ii) prohibition
The appellate court reviews issues of law (i) __ ____
de novo
The appellate court reviews findings of facts on a (i) _____ _____ standard.
clearly erroneous
The appellate court reviews mixed questions of law and fact: (i) _ ____
de novo
The appellate court reviews discretionary orders (e.g., admission of evidence) on an (i) ______ of ______ standard.
Abuse of discretion
No execution on judgment (except for injunctions or receiverships) is valid until ____ days after entry
30
Expiration of TRO, time to file a jury demand (since last pleading), and time to appeal a class action certification are all: _______ days.
Fourteen
Time after complaint to answer or file a Rule 12 motion, Time to amend a pleading (as a matter of course), and time to withdraw after a Rule 11 motion are all: ______ days.
21 days
Time to file a RJMOL or a motion for a new trial after trial is: ______ days
28 days
Time to initially file for removal, remand, time to return a request for waiver of process (add 30 days if outside US), and time to file an appeal are: _____ days
30 days
Time to file an answer or 12 motion if service of process was waived is _____ days
60 days
Process must be served within ______ days of the filing of the complaint
90 days
The maximum time limit for removal based on diversity is: _____ year
One
