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Leansheets Bar Prep > Civil Procedure > Flashcards

Civil Procedure Flashcards

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1
Q

Personal Jurisdiction:
-traditional

A

D domiciled in the forum; personally served while present in the forum’ express or implied consent to jurisdiction

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2
Q

Personal Jurisdiction:
Long Arm Statute

A

assume the stature reaches the constitutional limit

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3
Q

Personal Jurisdiction:
constitutional analysis: definition

A

does the D have such minimum contacts with the forum so that the exercise of jurisdiction doesn’t offend traditional notions of fair play and substantial justice?

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4
Q

My Parents Frequently Forgot to Read Children’s Stories

A

-minimum contacts if: purposeful availment + foreseeability
-fairness: relatedness + convenience + state’s interest

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5
Q

Personal Jurisdiction:
relatedness

A

-specific = D’s specific contact with the forum
-general = D corp must be “at home” in the forum state

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6
Q

Subject Matter Jurisdiction:
-diversity

A

diversity: complete diversity + amt in controversy > $75k

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7
Q

aggregation

A

ok to aggregate claims of one P against one D, but not 2 claims by 2 or more Ps against 2 or more Ds

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8
Q

federal question

A

“arises under” federal law

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9
Q

supplemental jurisdiction

A

“common nucleus of operative fact”
BUT, P cannot use suppl juris. in a diversity case solely to overcome a lack of diversity

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10
Q

refusal

A

Fed Q is dismissed early on; state claim is complex; state law issue predominates

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11
Q

removal

A

-D can remove if case could have been heard in Fed. Court under subj. matter juris.
*all Ds must agree
*no removal by P, if more than 1 year passed since the case was filed, or in a diversity case where any D is a citizen of the forum.
*once D files permissive counterclaim in state court, he can’t remove

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12
Q

Venue:
-local action

A

anything re: land

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13
Q

transitory

A

-district in which ALL Ds reside; if same state but diff districts then any district where one resides; OR substantial part of claim arose
*Corp resides anywhere it does business

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14
Q

transfer

A

-Consider convenience of parties and Ws and interest of justice:
-public factors re: applicable law, what community should bear the burden of jury service

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15
Q

forum nonconveniens

A

-far more appropriate court exists elsewhere (the Court would then dismiss w/o prejudice or stays the case):
—location of Ws and evidence; undue hardship for D; availability of adequate alternative forums; use of judicial resources; public policy
*applicable when transfer is impossible bc the court is in diff judicial system, but NEVER granted if P is a resident of the forum.

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16
Q

Service:

A

-summons and complaint; personal service OR

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17
Q

substituted service

A

-left with someone of suitable age and discretion who resides there

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18
Q

service on agent

A

Delivering a copy of the summons and complaint to an agent authorized to receive service

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19
Q

waiver my mail

A

process mailed to D; formal service waived if returned in 30 days. If no return, personal or sub service is required

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20
Q

immunity

A

if in the state as a W or a party

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21
Q

timing

A

-must serve the D within 90 days after complaint filed, or Court must dismiss with prejudice unless P shows good cause

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22
Q

Which law governs the dispute?:
-Erie Doctrine

A

-in diversity and suppl. juris. cases, the Federal Court must apply state substantive law: SoL; choice of law rules; elements of claim/defense; rules on tolling SoL
*BUT the Court uses Federal Procedural Law

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23
Q

process to analyze substantive law

A

-analyze if outcome determinative (SL); balance of interest; avoid forum shopping (SL)
*if Fed law conflicts, Fed. law prevails

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24
Q

Interlocutory Injunctions:
-preliminary injunction

A

-preserves status quo pending determination of merits of litigation
*must provide notice to adverse party
*must show: (1) imminent irreparable injury (non-monetary); (2) no adequate legal remedy;
(3) substantial likelihood of success on the merits;
(4) a balance of the hardships;
(5) not adverse to public interest

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25
Q

temporary retraining order

A

-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

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26
Q

Proper Pleadings?
-Rule 11

A

-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

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27
Q

the claim

A

-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

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28
Q

D Response

A

-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

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29
Q

requirements for the Answer

A

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

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30
Q

right to amend

A

-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)

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31
Q

supplemental

A

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

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32
Q

Defendant’s Claims:
-counterclaims/Cross complaint against P

A

-compulsory if arises from the same transaction or occurrence

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33
Q

cross claim / cross complaint against co-D

A

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

34
Q

impleader if by D/Cross Complaint against 3rd Party

A

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

35
Q

Joinder: Are Proper Parties Before the Court?
-permissive

A

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

36
Q

compulsory

A

(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

37
Q

how to join the party?

A

-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

38
Q

Intervention:
-of right
-permissive

A

-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

39
Q

Claims:
-federal impleader

A

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

40
Q

interpleader

A

-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

41
Q

Class Action:

A

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

42
Q

types

A

-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

43
Q

Class Action: Notification

A

-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

44
Q

Subject Matter Jurisdiction

A

-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

45
Q

settlement of class action

A

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

46
Q

Discovery:
-required disclosures

A

-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

47
Q

discovery: scope

A

-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

48
Q

depositions

A

-non-parties subpoenaed; parties require notice

49
Q

interrogatories

A

limited to 25 total; 30 days to respond

50
Q

request to produce

A

30 days to respond

51
Q

requests for admission

A

30 days to respond

52
Q

physical / mental exam

A

court order required

53
Q

duty to supplement

A

if incomplete or incorrect, response must be supplemented

54
Q

sanctions

A

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

55
Q

privilege

A

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

56
Q

e-discovery

A

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

57
Q

-authentication of e-discovery
-failure to preserve electronic info

A

-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

58
Q

Adjudication Without a Trial:
-voluntary dismissal

A

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

59
Q

involuntary dismissal

A

-fail to prosecute, or abide Court order

60
Q

failure to state a claim (12(b)(6))

A

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

61
Q

summary judgment

A

-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

62
Q

Pre-trial Conferences:
-in general

A

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

63
Q

-pre-trial order

A

controls the course of action taken in the conference

64
Q

-final pretrial conference

A

-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

65
Q

sanctions

A

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

66
Q

Verdicts and Judgments:
-recovery

A

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

67
Q

jury trial

A

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

68
Q

voir dire

A

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

69
Q

jury verdicts
-general
-special
-general with special interrogatories

A

-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

70
Q

motion for judgement as a matter of law / directed verdict

A

-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

71
Q

renewed motion for judgment as a matter of law

A

*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

72
Q

motion for a new trial: grounds

A

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)

73
Q

Appealability and Review:
-appeal

A

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

74
Q

final judgment rule

A

-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

75
Q

interlocutory review:
-as of right

A

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

76
Q

interlocutory review:
-discretionary

A

-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

77
Q

Extraordinary Writs:
-types

A

-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

78
Q

Extraordinary Writs:
-requirements

A

-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

79
Q

Is the Decision Binding in Future Cases:
-Res Judicata: Claim Preclusion

A

-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

80
Q

Is the Decision Binding in Future Cases:
-Collateral Estoppel: Issue Preclusion

A

(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

81
Q

Collateral estoppel: who asserts?

A

-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

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