Civil Procedure Flashcards

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1
Q

When are two claims considered related for purposes of supplemental jurisdiction?

A

When the claims arise out of a common nucleus of operative fact

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2
Q

What are the four requirements for a class action?

A

(i) The class must be so numerous that joinder of all members is impracticable (numerosity);
(ii) There must be questions of law or fact that are common to the class (commonality);
(iii) The claims or defenses of the representatives must be typical of the class (typicality); and
(iv) The representatives must fairly and adequately protect the interests of the class (adequacy).

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3
Q

What is the due process requirement for in personam jurisdiction?

A

Due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

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4
Q

Generally, where is venue proper?

A

(i) A judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or
(ii) A judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located.

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5
Q

Under the Erie Doctrine, what law governs in a diversity action?

A

In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located, if there is no federal law on point. The district court will apply federal procedural law, even if a state rule or statute is in conflict.

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6
Q

What are the requirements for a plaintiff seeking a preliminary injunction?

A

A plaintiff seeking a preliminary injunction must establish that:

(i) He is likely to succeed on the merits;
(ii) He is likely to suffer irreparable harm in the absence of relief;
(iii) The balance of equities is in his favor; and
(iv) The injunction is in the best interest of the public.

6 of 50

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7
Q

What are the required elements for a complaint?

A

Under Rule 8(a), a complaint must include:

(i) A short and plain statement of the grounds that establish the court’s subject matter jurisdiction;
(ii) A short and plain statement of the claim establishing entitlement to relief; and
(iii) A demand for judgment for the relief sought by the pleader.

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8
Q

What is federal question jurisdiction?

A

Under 28 U.S.C. 1331, the district courts have original jurisdiction over all actions arising under the Constitution, laws, or treaties of the United States.

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9
Q

When can a party amend a pleading?

A

Under Rule 15(a), a party may amend a pleading:

(i) Once as of right within 21 days if no responsive pleading is required; or
(ii) If a responsive pleading is required, within 21 days of service of the responsive pleading or within 21 days of being served with a motion under Rule 12(b), whichever is earlier.

Additionally, the court should freely give leave to amend a pleading when justice so requires.

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10
Q

When may a plaintiff join as a permissive joinder?

A

Pursuant to Rule 20(a)(1), a person may join in one action as plaintiff if:

(i) They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(ii) Any question of law or fact common to all plaintiffs will arise in the action.

Note: The same circumstances apply to permissive joinder of defendants under Rule 20.

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11
Q

Under Rule 20 permissive joinder, does the plaintiff to be joined have to meet the requirements of federal subject matter jurisdiction?

A

If multiple plaintiffs join together under Rule 20, then supplemental jurisdiction can exist for a claim that does not meet the statutory jurisdictional amount, provided the parties still meet the requirements of complete diversity.

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12
Q

When must an objection to improper venue be raised?

A

An objection to improper venue must be raised in a pre-answer motion to dismiss under Rule 12(b)(3) or in the first responsive pleading, if a motion under Rule 12(b)(3) is not filed.

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13
Q

What are the five bases for in personam jurisdiction?

A

(1) Voluntary Presence
(2) Domicile
(3) Consent
(4) Long-arm statutes
(5) Attachment

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14
Q

What is a compulsory counterclaim?

A

A pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if:

(i) The claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim; and
(ii) The claim does not require adding another party over whom the court cannot acquire jurisdiction.

Note: A party who fails to assert a compulsory counterclaim waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court.

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15
Q

What are the three types of personal jurisdiction?

A

(1) In personam jurisdiction
(2) In rem jurisdiction
(3) Quasi-in-rem jurisdiction

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16
Q

What are the three types of class actions?

A

(1) Risk of Prejudice: The class is maintainable if the prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or if prosecution of the claims through separate actions would impair the interests of the class members.
(2) Final Equitable Relief: A class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party.
(3) Common Legal or Factual Questions: A class can be certified if questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method for bringing about a fair and efficient adjudication of the controversy.

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17
Q

When a class action is brought under a common legal or factual question, what seven pieces of information must be stated in the notice provided to the members?

A

(i) The nature of the action;
(ii) The definition of the class;
(iii) The class claims, issues, or defenses;
(iv) That a class member may enter an appearance through an attorney if the member so desires;
(v) That the court will exclude from the class any member who requests exclusion;
(vi) The time and manner for requesting exclusion; and
(vii) The binding effect of a class judgment on members.

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18
Q

What are the three types of mandatory disclosures?

A

Rule 26(a) requires the parties to make:

(i) Initial disclosures;
(ii) Disclosures of expert testimony 90 days before trial; and
(iii) Pretrial disclosures 30 days before trial.

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19
Q

In assessing whether a case can be filed in federal court, when is diversity determined?

A

Diversity is determined at the time the case is filed. There is no requirement that diversity exist at the time the cause of action arose. A change in citizenship or amount in controversy after the filing of the case will not affect diversity jurisdiction that was in existence at the time of the filing. In addition, a change in the parties as a result of substitution or intervention will not affect diversity jurisdiction.

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20
Q

How does a party make a demand for a trial by jury?

A

Any party may make a written demand for a trial by jury. The demand, which may be made separately or in a pleading, must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury, and filed with the court within a reasonable time after service.

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21
Q

How many interrogatories may a party serve on another party?

A

Pursuant to Rule 33(a), any party may serve no more than 25 written interrogatories on any other party.

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22
Q

How long may a temporary restraining order remain in effect?

A

A temporary restraining order may remain in effect for only a limited number of days, but no longer than 14 days unless good cause exists or the adversary consents.

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23
Q

How much time does a party have to respond to interrogatories?

A

The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.

Note: The court may order or the parties may stipulate to a shorter or longer time.

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24
Q

What three factors will a court consider when deciding to set aside a default judgment?

A

Three factors the courts generally consider are:

(i) Whether the defendant’s failure to act was willful;
(ii) Whether setting the default aside would prejudice the plaintiff; and
(iii) Whether the defendant has presented a meritorious claim.

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25
Q

How long does a defendant have to respond to a complaint?

A

Under Rule 12, within 21 days of service of process, a defendant must respond to a complaint either by an answer or by a pre-answer motion.

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26
Q

Who is responsible for serving the summons and complaint and when must it be served?

A

The plaintiff is responsible for serving the summons and complaint upon the defendant within 90 days after filing the complaint.

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27
Q

How many peremptory challenges and challenges for cause does a party have?

A

Each party in a civil case gets three peremptory challenges.

Each party is entitled to an unlimited number of challenges for cause.

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28
Q

What is the rule for removal when there are multiple defendants?

A

In general, all defendants who have been properly joined and served are required to join in or consent to the removal. If the defendants are served at different times and a later-served defendant files a notice of removal, then any earlier-served defendant may join in the removal even though that defendant did not previously initiate or consent to removal.

Note: In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal.

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29
Q

What seven defenses may be raised in a motion filed under Rule 12(b)?

A

(i) Lack of subject matter jurisdiction
(ii) Lack of personal jurisdiction;
(iii) Improper venue;
(iv) Insufficient process;
(v) Insufficient service of process;
(vi) Failure to state a claim upon which relief can be granted; and
(vii) Failure to join a necessary or indispensable party under Rule 19.

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30
Q

Who has the burden of proof in a claim for summary judgment?

A

The movant has the burden of persuasion on a motion for summary judgment. Once the movant make a prima facie showing that summary judgment is appropriate, the burden shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of fact for trial.

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31
Q

Which defenses are waived unless raised in the pre-answer motion or answer?

A

Under Rule 12(h)(1), the defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defenses will be waived.

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32
Q

What is the standard used in deciding a motion to dismiss for failure to state a claim upon which relief can be granted?

A

Under Rule 12(b)(6), a claim for relief can be dismissed if it either (i) fails to assert a legal theory of recovery that is cognizable at law, or (ii) fails to allege facts sufficient to support a cognizable claim.

In deciding a motion under Rule 12(b)(6), courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff’s favor, and view the pleading in the light most favorable to the plaintiff.

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33
Q

What is removal jurisdiction and who generally has the right to remove?

A

Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed to the district court for the district and division in which the state court action is pending.

Generally, the right of removal is a right of the defendant.

34
Q

What is a judgment as a matter of law, and what is the standard used in deciding these motions?

A

Under Rule 50(a), once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if the court finds that there is insufficient evidence for a jury reasonably to find for that party.

The court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party.

35
Q

When may a party bring a motion for judgment as a matter of law?

A

A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury.

Note: If a party moves for a judgment as a matter of law after the close of the plaintiff’s case and the motion is denied, then the party may be unable to pursue a renewed motion for judgment as a matter of law after entry of judgment unless the party also moves for judgment as a matter of law after the presentation of all evidence.

36
Q

What are six grounds for a court to grant a motion for a new trial?

A

(i) Error at trial that renders the judgment unfair;
(ii) Newly discovered evidence that existed at the time of the trial was excusably overlooked and would likely have altered the outcome of the trial;
(iii) Prejudicial misconduct of counsel, a party, the judge, or a juror;
(iv) A verdict that is against the clear weight of the evidence;
(v) A verdict that is based on false evidence; or
(vi) A verdict that is excessive or inadequate.

Note: Rule 59 does not specifically list the grounds that will justify a new trial, but in practice, the overarching theme is that the court may grant a new trial to prevent a miscarriage of justice.

37
Q

What are the two ways in which a defendant can consent to in personam jurisdiction?

A
  1. Express consent: defendant agrees in advance to submit to the jurisdiction of the court if a lawsuit is brought by the plaintiff, or stipulates to personal jurisdiction once an action is brought
  2. Implied consent: through conduct, such as filing a counterclaim or driving a vehicle within a state
38
Q

What are the requirements of claim preclusion?

A

Claim preclusion (res judicata) requires:

(i) A valid final judgment on the merits;
(ii) Sufficiently identical causes of action; and
(iii) Sufficiently identical parties.

39
Q

Federal courts of appeals have jurisdiction over appeals of what types of judgments?

A

Under 28 USC 1291, the federal courts of appeals have jurisdiction over appeals of the final judgments of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.

40
Q

For the purposes of diversity jurisdiction, how is a corporation’s citizenship determined?

A

A corporation is considered a citizen of the state(s) and/or foreign country of incorporation and also the state or foreign country where it has its principal place of business.

Note: There can be more than one state or foreign country of incorporation, but only one state or foreign country will qualify as the principal place of business.

41
Q

What is the “well-pleaded complaint rule?”

A

This rule refers to the determination of federal question jurisdiction made by considering only the necessary elements of the plaintiff’s cause of action, not anticipated defenses, answers, or counterclaims.

This rule applies both to original jurisdiction of the federal court and to removal jurisdiction.

42
Q

Where is an individual’s domicile and how is the domicile changed?

A

An individual’s domicile is the state where the individual is present and intends to reside for an indefinite period. This state remains the domicile until the individual:

  1. Establishes presence in a new place; and
  2. Manifests intent to remain there for an indefinite period.
43
Q

Discuss aggregation of claims for amount-in-controversy purposes.

A

When aggregating claims by a single plaintiff against a single defendant, if the action involves only one plaintiff and one defendant, then the total value of the plaintiff’s diversity claims is calculated to determine the amount in controversy.

44
Q

When and how is the amount in controversy determined for diversity jurisdiction purposes?

A

The amount in controversy must exceed $75,000, exclusive of interest, costs, and collateral effects of a judgment. The amount in controversy is determined at the time the action is commenced in federal court, or, if the action has been removed to federal court, at the time of the removal.

Note: Attorney’s fees may be included in the calculation if recoverable by contract or statute, and punitive damages may possibly be included as well.

45
Q

How is a corporation’s “principal place of business” determined?

A

“Principal place of business” refers to the “nerve center” of the corporation. The nerve center is generally the location from which the high-level officers direct, control, and coordinate the activities of the corporation. Typically, the nerve center is the corporate headquarters.

46
Q

What is the purpose of a long-arm statute?

A

A long-arm statute authorizes personal jurisdiction over nonresidents who engage in some activity in the state or cause some action to occur within the state. A long-arm statute either directly authorizes or has been interpreted as authorizing jurisdiction to the extent permissible under the Due Process Clause.

47
Q

When the relief sought is an injunction, how is the amount in controversy determined for jurisdiction purposes?

A

In the case of injunctive relief, when it is difficult to assess a dollar amount, the court determines both the value of the plaintiff’s harm if an injunction is not imposed and the defendant’s cost of complying with an injunction. If the amount of either exceeds $75,000, then the amount-in-controversy requirement is satisfied.

48
Q

May a single plaintiff aggregate claims against multiple defendants to satisfy the amount-in-controversy requirement?

A

When a single plaintiff sues multiple defendants, the value of the plaintiff’s claims against each defendant may not be aggregated if the claims are separate and distinct.

If the defendants are jointly liable to the plaintiff, then aggregation to meet the amount-in-controversy requirement is permissible.

49
Q

When a case is removable from the outset, how does a defendant begin the process for removal?

A

A defendant who wants to remove a state court action to federal district court generally must file a notice of removal with the district court within 30 days after receipt or service of the initial pleading or summons.

50
Q

Typically, if a defendant is voluntarily present in the forum state and served with process there, then the court has personal jurisdiction over the defendant.

What are two exceptions?

A

(1) If a plaintiff fraudulently brings a defendant into the state for the purpose of serving process on the defendant
(2) If a defendant is merely passing through the state to attend other judiciary proceedings

51
Q

What are the three types of personal jurisdiction?

A

(1) In personam jurisdiction
(2) In rem jurisdiction
(3) Quasi-in-rem jurisdiction

52
Q

What are the required elements for a complaint?

A

Under Rule 8(a), a complaint must include:

(i) A short and plain statement of the grounds that establish the court’s subject matter jurisdiction;
(ii) A short and plain statement of the claim establishing entitlement to relief; and
(iii) A demand for judgment for the relief sought by the pleader.

53
Q

What is the due process requirement for in personam jurisdiction?

A

Due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

54
Q

When must a party be joined as a compulsory joinder under Rule 19?

A

Under Rule 19(a), a person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction or destroy venue must be joined as a party if:

(i) Complete relief cannot be provided to existing parties in the absence of that person;
(ii) Disposition in the absence of that person may impair the person’s ability to protect his interest; or
(iii) The absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations.

55
Q

When is notice not required for a temporary restraining order?

A

A temporary restraining order may issue without notice to the adverse party if:

(i) The moving party can establish, under written oath, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition; and
(ii) The movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.

56
Q

How does remand differ from removal?

A

Removal is from state to federal court, and by a defendant, usually within a specified time frame, and with the agreement of all defendants.

Remand happens from federal to state court. It does not require consent or timeliness.

57
Q

When can a party amend a pleading?

A

Under Rule 15(a), a party may amend a pleading:

(i) Once as of right within 21 days if no responsive pleading is required; or
(ii) If a responsive pleading is required, within 21 days of service of the responsive pleading or within 21 days of being served with a motion under Rule 12(b), whichever is earlier.

Additionally, the court should freely give leave to amend a pleading when justice so requires.

58
Q

When does a court have diversity jurisdiction (two requirements)?

A

When:

(1) The parties to the action are
(a) citizens of different states
(b) citizens of a state and citizens or subjects of a foreign state
(c) citizens of different states and citizens or subjects of a foreign state are additional parties, or
(d) a foreign state as plaintiff and citizens of a state or different states; and

(2) The amount in controversy in the action exceeds $75,000

59
Q

Under the Erie Doctrine, what law governs in a federal question claim?

A

If the action is a federal question claim, then federal substantive and procedural law will control, as well as federal common law.

60
Q

How may an individual within the U.S. be served?

A

Service may be made within the state in which the federal district court sits by:

(i) Personally serving the summons and complaint on the defendant;
(ii) Leaving the summons and complaint at the defendant’s usual place of abode with a person of suitable age and discretion who resides there; or
(iii) Delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.

61
Q

What is an injunction?

A

A form of equitable relief mandating that a defendant perform a specified act or prohibiting a defendant from performing a specified act

62
Q

For purposes of venue, where does a defendant business entity reside?

A

A business entity is deemed to reside in any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question.

Note: If the entity is a plaintiff, then it is deemed to reside only in the judicial district in which it maintains its principal place of business.

63
Q

What is an impleader?

A

An impleader (third-party claim) 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

What are the three types of class actions?

A

(1) Risk of Prejudice: The class is maintainable if the prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or if prosecution of the claims through separate actions would impair the interests of the class members.
(2) Final Equitable Relief: A class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party.
(3) Common Legal or Factual Questions: A class can be certified if questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method for bringing about a fair and efficient adjudication of the controversy.

65
Q

What is a judgment as a matter of law, and what is the standard used in deciding these motions?

A

Under Rule 50(a), once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if the court finds that there is insufficient evidence for a jury reasonably to find for that party.

The court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party.

66
Q

What is removal jurisdiction and who generally has the right to remove?

A

Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed to the district court for the district and division in which the state court action is pending.

Generally, the right of removal is a right of the defendant.

67
Q

What is the standard used in deciding a motion to dismiss for failure to state a claim upon which relief can be granted?

A

Under Rule 12(b)(6), a claim for relief can be dismissed if it either (i) fails to assert a legal theory of recovery that is cognizable at law, or (ii) fails to allege facts sufficient to support a cognizable claim.

In deciding a motion under Rule 12(b)(6), courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff’s favor, and view the pleading in the light most favorable to the plaintiff.

68
Q

Under Rule 20 permissive joinder, does the defendant to be joined have to meet the requirements of federal subject matter jurisdiction?

A

If the claims are made solely on the basis of diversity jurisdiction, there must be complete diversity between the plaintiffs and the defendants, and each claim must exceed the jurisdiction amount in controversy of $75,000.

69
Q

How much time does a party have to respond to interrogatories?

A

The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.

Note: The court may order or the parties may stipulate to a shorter or longer time.

70
Q

What are the three types of jury verdicts?

A

(1) Special verdict - A written finding made by the jury on each issue of ultimate fact. The court submits written questions to the jury correlating to each ultimate fact of the case and asks the jury to make a finding on each fact.
(2) General verdict - A decision by the jury as to the prevailing party and, if the plaintiff is the prevailing party, the amount of damages.
(3) General with special interrogatories - This couples a general verdict with a special verdict. It is used to ensure that the jury independently considered the material facts of the case in arriving at its verdict.

71
Q

Discuss aggregation of claims for amount-in-controversy purposes.

A

When aggregating claims by a single plaintiff against a single defendant, if the action involves only one plaintiff and one defendant, then the total value of the plaintiff’s diversity claims is calculated to determine the amount in controversy.

72
Q

What are the three types of mandatory disclosures?

A

(i) Initial disclosures;
(ii) Disclosures of expert testimony 90 days before trial; and
(iii) Pretrial disclosures 30 days before trial.

73
Q

When may a party file a renewed motion for judgment as a matter of law?

A

The movant may file a renewed motion for judgment as a matter of law no later than 28 days after the entry of judgment. If the motion addresses a jury issue not decided by a verdict, then the renewed motion must be filed no later than 28 days after the jury was discharged.

74
Q

How many peremptory challenges and challenges for cause does a party have?

A

Each party in a civil case gets three peremptory challenges.

Each party is entitled to an unlimited number of challenges for cause.

75
Q

When is a default and default judgment entered against a party?

A

When:
(i) A party has failed to plead or otherwise defend an action, and that failure is show by affidavit; or

(ii) The court clerk must enter the party’s default.

Once a default is entered against a party, the plaintiff may seek a default judgment.

76
Q

What interlocutory orders are immediately appealable?

A

28 USC 1292(a) makes certain equitable orders reviewable immediately as a matter of right, including:

(i) An order granting, modifying, refusing, or dissolving an injunction;
(ii) An order appointing or refusing to appoint a receiver; and
(iii) A decree determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

77
Q

What is the standard of review used by appellate courts for legal rulings?

A

In general, appellate review of legal rulings is de novo (i.e., without deference to the trial court’s legal rulings).

78
Q

When can a defense of lack of subject matter jurisdiction be raised?

A

The defense of lack of subject matter jurisdiction may be raised at any time, even on appeal. Rule 12(h)(3).

79
Q

If a case starts out as not removable, but later becomes removable, what is the timeframe for removing?

A

The defendant has 30 days to file a notice of removal once the defendant receives a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is now removable.

80
Q

What are the two ways in which a defendant can consent to in personam jurisdiction?

A
  1. Express consent: defendant agrees in advance to submit to the jurisdiction of the court if a lawsuit is brought by the plaintiff, or stipulates to personal jurisdiction once an action is brought
  2. Implied consent: through conduct, such as filing a counterclaim or driving a vehicle within a state