Civil Procedure Flashcards
Removal
D has 30 days once its removable to remove; can never be more than 1 year
If a diversity case, if D is a resident of the forum, they cannot remove
Entitled to jury for
legal issues only; assert in complaint/answer
removal
fed discretion does not have discretion to decline removal
cross claims
allowed, even if D is asserting their own injury claim against TPD from same T/O
Erie
is federal law, FRCP on point? If so, go with that. If not, THEN ask if it was substantive
pre-trial conferences
judge can order on anythign that’s relevant, including pressuring to settle
pleadings / good faith
when attorney signs, they are attesting that they have taken a good faith effort to look up relevant facts/legal issues (e.g., statute of limitations). can be sanctioned if don’t do good faith
summary judgment - what can judge consider?
thigns under oath! affidavits etc.
Default judgement collateral attack
allowed for constitutional or procedureal issues (lack of SMJ, lack of service of process)
Costs of compelling disocver?
only allowed when good faith effort has been made with other side to resolve dispute before a motion to the court to order reasonable costs
Advisory opinion
where judicial opion has no effect, reviewable by another branch of the government
Federal courts are not allowed to issue (state courts can)
Who can remove?
Only the defendant
How long does D have to answer or file 12 b motion?
21 days
When can P amend
once within 21 days of D’s first rule 12 response (P)
D - once within 21 days of serving answer
After time has passed, must seek leave of court or get consent from other party
Amendment after SoL - relates back
new claim can be added to proper first claim so long as it relates back (same T/0)
To Change D - (1) same T/O, D must have had knolwedge oef case, (3) D knew or should have known mistake they would be named
Necessary parties - joint tortfeasors?
Never necessary
Class requiremenets
numerosity
Commonality
Typicality
Representative Adequate
Types of classes
Prejudice (always bound) (rare)
Injunctive (e.g., employer refusing vacation time) always bound
Common question or damages (mass torts): common questions that predominate and class is superior method
Class certification
immediatley appealable
Initial disclosures - when?
14 days from 26(f) conference
initial disclosures
(1) identity of people with discoverable info that you may use to support claims or defenses
(2) documents and things used to support (including ESI)
(3) computation of relieve
(4) insurance coverage
Failure do disclose = can’t use at trial
Expert witness disclosures
(1) identify and witness report for EWs
Consulting expert info is NOT discoverable
Discoverable info
anything relevant to claim/defense and proportional to teh case
Interroggatories
Parties only! can’t refuse to answer something just because it is burdensome
request to produce
send to parties only, usually for ESI (30 days to response)
if a party provides incompelte discovery?
Can to motion to compel, but must certify that moving party has made good faith attempt with opponent to obtain discovery wtihout court intervention
can get atty fees if other party complies with order, sanctions if they do not
Default judgment - timing
D doesn’t respond in 21 days of service (60 days if waiveD)
P moves for entry from the clerk
P then moves for default judgment, which can do if D has made no appearance, damages are certain, (3) P gives affidavit on amount, and D is not minor or incompetent
Motion to dismiss timing
before D files answer and up through trial if failure to state a claim upon which relief can be granted (unlike 3Ps and V)
Key test: is there a plausible complaint
Party deamdns jury trial within
14 days of last pleading that addresses jury trial issue and serve on ALL parties (otherwise waive). Last pleading usually teh answer
Entry of judgement
Stayed for 30 days, always
Inconsistent general verdict + written questions
judge can order jury to reconsider the verdict or order a new trial
Juror misconduct
jurors can be impeached only on exernal matters - wont’ set aside verdict b/c jurors didn’t follow instructions or said their opinions
reasons for motion for new trial
erroneous jury instruction new evidence that could not have been discovered with due diligence misconduct by jury/lawyer seirous error of judgement damages are inadequate or excessive
Motion for relief from judgement
clerical error & SMJ: anytime
mistake, fraud/misrepresentation: reasonable time, never more than 1 year
newly discovered facts that could not have been discovered for new trial motion (28 days) but existed at time of trial and could not have been foudn with due diligence (reasoanble time, never more than 1 year)
Interlocutory appeals act
non final order reviewable if (1) judge certifes non-final order as contrlling issue of law and (2) substantial groudn for different opinions and (3) appeals court agrees to hear
Claim preclusion
Same P vs. Same D,
final, valid, judguement on teh merits
Same claim (same T/O)
Collateral estoppel (issue)
Final judgement on the merits in case 1
same issue was actually litigated and determined
essential to judgement (basis for judgement)
used AGAINST someone who was party in case 1 (or inprivity - employers are not in privity - e.g., same class in class action)
used by (1) party to case 1 or (2) non-party (non-mutual)
How long to appeal?
30 days
14 days (5)
time to file answer after denial of rule 12
expiration of TRO
jury demand after last pleading
appeal class action certficiation
tiem before trial to submit settlement offer
21 days
file answer or 12b motion
amend pleading once
withdraw pleading after rule 11
28 days
RJMOL
motion for new trial
30 days (5)
Time to remand
Time to remove
rreturning request to waive service of process
time for appeals after trial)
time after close of discover to bring motion for SJ
automatic stay of enforcement of judgement
1 year
outer time limit for removal in diversity case
motion for relief of order of judgment (mistake, fraud, new info that could not have been discovered in tiem for new trial motion, due diligence)
Anytime
Clerical error/SMJ
60 days
time to file answer if waive service of process
90 days
time to serve process