Civil Procedure Flashcards

Question

temporary retraining order

Answer 1

-preserves the status quo of subject matter of litigation, and prevents irreparable harm until PI hearing *must provide notice UNLESS: (i) immediate and irreparable injury; (ii) effort to give notice; and (iii) provide security in case party wrongfully restrained/enjoined *must show same elements as PI *lasts 14 days unless an extension is granted

Answer 2

-attorney must sign all pleadings, etc. to certify that: (i) no improper purpose; (ii) legal contentions are warranted by law; (iii) factual contentions and denials have evidentiary support *can be raised by opposing party w/in 21 day safe harbor OR by court sua sponte

Answer 3

-must plead FACTS supporting plausible claim enough to put D on notice and prepare reasonable response *(Iqbal/Twombly standard) + basis of Subj. matter juris + demand for relief

Answer 4

-must be within 21 days of service: can be motion for more def statement/motion to strike; Motion or Answer. -waivable: lack of personal juris; improper venue; insufficient service of process -non-waivable: failure to state a claim, failure to join indispensable party; lack of SMJ

Answer 5

-must respond (admit, deny, lack of info) + raise any affirmative defenses (SoL, SoF, res judicata, self defense)

Answer 6

-P once within 21 days after D serves first response -D once within 21 days after D serves answer -if no right, seek leave of the court (the court will consider delay, prejudice, futility)

Answer 7

-pertains to matters that occur after initial pleading -permission from the court REQUIRED

Answer 8

-compulsory if arises from the same transaction or occurrence

Answer 9

permissive if arising from the same transaction or occurrence or under supplemental juris.

Answer 10

-NO diversity required for 3rd party practice between 3rd party D and 3rd party P

Answer 11

-arise under the same transaction or occurrence + raise 1 common question

Answer 12

(1) complete relief can't be given to existing parties without them; (2) disposition in party's absence may impair their ability to protect their own interest; or (3) their absence would expose existing parties to double or inconsistent obligations

Answer 13

-if feasible, PJ+SMJ (keep diversity) (discretion of the court -if unfeasible, the court can choose to proceed without them -look at alternative forum; actual likelihood of prejudice; whether court can shape relief to avoid prejudice; whether P will be deprived of adequate remedy

Answer 14

-of right: applicant has an interest in the property or transaction and action without him may impair ability to protect his interest -permissive: applicant's claim or defense and the main action have a common question of fact in common; must have own jurisdiction

Answer 15

Join a 3rd party for indemnity / contribution on underlying claim

Answer 16

-instituted by P to determine who has a valid claim to the stake -under federal rule, interpleader must follow regular federal question or diversity rules -under statutory rules, interpleader has special, simpler standards: diversity between one claimant and $500 in issue, service nationwide and venue properly where any claimant resides

Answer 17

-subject matter juris. required -requirements: (Nobody Can Touch Rocky's Apple): Numerosity; Commonality; Typicality; and Representative is Adequate

Answer 18

-prejudice: class treatment is necessary to avoid harm to class member or party opposing class; Injunction / Declaratory Judgment: class members are treated alike by other party; -Damages (most likely ex. mass tort): (i) common questions predominate; (ii) class action is superior

Answer 19

-if damages class action: notify all identifiable members that they can opt out, otherwise bound if they don't *they can enter a separate appearance; the class representative pays

Answer 20

-federal question or diversity -if diversity, only look to rep, no one else in the class -traditional: rep has complete diversity from Ds + Rep's claim > $75k; -Class Action Fairness Act: Subj. matter juris. if any class member is diverse from any D + more than 100 class member + aggregate claim of more than $5mil

Answer 21

-requires court approval; notice to the class; 2nd chance to opt out

Answer 22

-duty to produce without request: (1) Initial Disclosures (ID people and docs likely to have discoverable info; computation of damages; insurance coverage) (2) list of experts; (3) pretrial: detailed info about trial evidence at least 30 days before trial

Answer 23

-relevant: reasonably calculated to lead to admissible evidence; must be relevant to the claim or defense -proportional: must be proportional to the needs of the case *the benefit outweighs the burden

Answer 24

-non-parties subpoenaed; parties require notice

Answer 25

limited to 25 total; 30 days to respond

Answer 26

30 days to respond

Answer 27

30 days to respond

Answer 28

court order required

Answer 29

if incomplete or incorrect, response must be supplemented

Answer 30

-partial or total violation -cost or contempt + extreme sanction for extreme violations: monetary sanction; strike pleadings; disallow evidence; dismiss; default judgment

Answer 31

-work product / attorney work product : mental impressions, conclusions, legal theories, opinions

Answer 32

-no need to produce ESI if party shows not reasonably accessible bc undue burden, but court may order production + cost sharing/shifting

Answer 33

-authentication: may use metadata to authenticate -failure to preserve: must take reasonable steps to preserve ESI if litigation is anticipated -if the data is lost + prejudice to the other party + intent to deprive the other party of the data = Court may (i) presume or instruct jury it may/must presume lost data unfavorable to party; or (ii) dismiss action or enter default judgment

Answer 34

-P can voluntarily dismiss before D serves an answer or motion w/o prejudice

Answer 35

-fail to prosecute, or abide Court order

Answer 36

-alleged facts must support legally recognized claim -assumes all allegations are true, and only looks at the face of the complaint

Answer 37

-The moving pary: must show no genuine dispute of material fact -The opposing party: show that a triable issue exists *the evidence is looked as in the light most favorable to the non-moving party

Answer 38

-the Court may hold as many as needed to expedite the case and facilitate settlement

Answer 39

controls the course of action taken in the conference

Answer 40

-the Court may use to formulate the trial plan -held close to trial date, may be modified by the Court only to prevent manifest injustice

Answer 41

-failure to attend the conference or obey the order, being substantially unprepared, acting in bad faith

Answer 42

-if default, recovery is limited to amount sought in the complaint

Answer 43

-7th Amendment right to jury trial in civil cases as to legal relief -the Court decides equitable relief

Answer 44

-unlimited strikes for cause; each side gets 3 preemptory -6-12 jurors, no alternates -requires an unanimous verdict

Answer 45

-general: finds in favor of P or D completely, gives amount of damages -special: jury makes a finding on all issues of material fact submitted to them, the court applies the law -general w/ special interrogatories: jury answers factual questions to ensure the general verdict is valid

Answer 46

-D moves at the close of P's evidence and close of all evidence -P only move at close of all evidence *standard: reasonable people couldn't disagree

Answer 47

*must bring motion for judgment as a matter of law FIRST -claim that jury verdict is not reasonable -within 28 days of entry of judgment -same standard as motion for judgment as matter of law

Answer 48

grounds: prejudicial error making judgment unfair; new evidence that couldn't have been obtained with due diligence; prejudicial misconduct; judgment is against the weight of the evidence; excessive/inadequate damages that SHOCKS the CONSCIENCE (remittitur: jury award is too large, P chooses lesser figure or new trial)

Answer 49

-file in the trial court within 30 days of entry of judgment

Answer 50

-Decision on final merits of the claim; All Ds must agree -Dnial of motion for summ. jug.; grant for new trial; grant to remand to state court: then NO FJ -Denial of new trial; grant or deny renewed motion for judgment as matter of law: then YES FJ *default judgment that does not dispose of all claims among all parties: NO FJ unless directed by Court

Answer 51

-as of right: orders re: injunctions, receivers, property possession; admiralty, patent infringement, grant/deny class certification

Answer 52

-discretionary: but Court may review interlocutory orders only if: (i) the order involves controlling question of law, (ii) substantial ground for differing opinion; (iii) immediate appeal may advance ultimate termination of case; (iv) Court of appeals allows appeal

Answer 53

-writ of mandate: compel lower court to do something that the law requires -writ of prohibition: to stop a lower Court from doing something that the law doesn't allow

Answer 54

-the party will suffer irreparable harm if the writ is not issued, eg. unusually harsh or unfair; -normal appellate route is inadequate; -party has beneficial interest in the outcome

Answer 55

-Claimant won case 1: res judicata merges the cases -Claimant lost Case 1: res judicata bars the case -requirements: (i) same parties; (ii) ended in valid final judgment on the merits; (iii) assert the same cause of action / claim

Answer 56

(i) Against someone who was a party in Case 1; (ii) Case 1 ended in valid, final judgement on the merits; (iii) Issue was actually litigated and determined; (iv) Issue essential to the judgment

Answer 57

-traditional: mutuality required -modern: non-mutuality -defensive: D can assert if P was a party to a prior case, but only if P had full chance to litigate -non-mutuality offensive: P can assert against D if not "unfair": full and fair opportunity to litigate; party could foresee multiple suits; P couldn't have been joined easily; no inconsistent judgments on record