Civil Procedure Flashcards
Which Jurisdiction can be waived and which can be asserted at any time?
Personal jurisdiction may be waived, but subject matter jurisdiction may be asserted at any time (thus not waivable).
How diversity of jurisdiction applies to persons not living in the US?
A citizen of another country may trigger diversity of jurisdiction.
However, a US citizen living in another country indefinitely won’t (should file suit in a state court instead).
Can I sue a defendant living in the same state as I do in federal court?
Yes, as long as it is done under a cause of action that arose under federal law. Defendant may be prosecuted in ANY federal court in the state.
Is an expert, who was retained in anticipation of litigation or to prepare for trial but is not expected to be called as a witness, subject to discovery by the other party?
No, discovery of the expert’s opinions is permitted only on a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
How can one consent to Personal Jurisdiction, if PJ is not warranted by the facts?
Unlike with subject-matter jurisdiction, a party may consent to personal jurisdiction expressly, impliedly, or by a voluntary appearance to defend the case on the merits.
For Eerie purpose, how is solved a conflict between applicable federal and state procedural laws?
If the applicable state and federal laws conflict, the district court must ask whether a valid federal statute covers the disputed issue. If there is a valid federal statute on point, the district court must apply federal law rather than the State law.
What does say the Rules Enabling Act regarding application of law in citizenship diversity cases?
Before applying a Federal Rule (rather than a federal statute) on point, the court determines whether the rule is valid under the Rules Enabling Act. Specifically, the court asks if the Federal Rule abridges, enlarges, or modifies any substantive right. If the Federal Rule leads to a different outcome, then state law is applied.
In multi-state cases what law should one follow when serving on the Defendant?
For serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located (the forum state) or in the state where service is made.
What must establish a Plaintiff seeking a preliminary injunction?
(i) she is likely to succeed on the merits;
(ii) she is likely to suffer irreparable harm in the absence of relief;
(iii) the balance of equities is in her favor; and
(iv) the injunction is in the best interest of the public.
Can a D in a Federal court amend its petition to include a lack of Personal Jurisdiction after failing to do so in her initial appearance to the court?
Yes. Rule 15(a)(1)(a): a party may amend its pleading once as a matter of course within 21 days after serving it. 12(h)(1)(B): a party waives the defense of lack of personal jurisdiction by failing to include it in a pre-answer motion, a responsive pleading, or in an amendment allowed by Rule 15(a)(1), as a matter of course.
How much discretionary power does a Federal Court have to allow parties to amend their pleadings?
Plenary. Should freely grant leave to amend a pleading when justice so requires.
Can a court impose monetary sanctions to an attorney ex-officio?
No. A court may impose sanctions, including payment of attorney’s fees, on attorneys, law firms, and parties for violations of Rule 11, but may typically do so only when a party makes a motion for such fees.
Can an attorney solely rely upon factual contentions put forth by the client in a pleading?
No. An attorney must make a reasonable inquiry into the factual contentions contained in a pleading.
Are the acts of transfering property by a debtor after the filing of the bankruptcy petition to two transferees for less than reasonably equivalent value “related to the same transaction, occurrence, or series of transactions or occurrences”?
It depends on the nature of the property receive by each transferee.
Transfer of personal property is unrelated to the transfer of the real property.
What are the requirements for a D to implead a third party?
D may implead a third party at any time after the complaint has been filed by serving a summons and third-party complaint on the third party. The D (third-party plaintiff) may do so without the court’s permission if he files the third-party complaint within 14 days after serving his answer to the plaintiff’s complaint.
Can a Plaintiff file a third-party claim against a third-party Defendant for an unrelated transaction?
No. A plaintiff may file a third-party claim against a third-party defendant, but the claim must fall under the court’s jurisdiction and relate to the same transaction or occurrence as the original complaint.
How does a court decide on the extension of discovery when there is a challenge for a party to produce due to technical difficulties or elevated costs?
limits if the burden or expense of the proposed discovery outweighs its likely benefit.
The court limits the frequency or extent of discovery otherwise allowed by the rules if it determines, in its discretion, that the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake, and the importance of the discovery in resolving the issues.
If a party fails to appear at a pretrial conference or fail to comply with a discovery order by mistake, what would be the adequate type of sanction, considering that the faulty party is the Plaintiff?
If counsel or a party fails to appear, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order. If due to a mistaken belief as to the date of the pretrial conference, then the most appropriate sanction would be the least serious of the sanctions: staying further proceedings until the order is obeyed.
How many peremptory challenges is each party allowed?
Each party in a civil case is entitled to three peremptory challenges and limitless challenges for cause.
Can a judge dismiss a juror without cause?
No. An individual who has been selected to serve as a juror must participate in the verdict unless excused for good cause, such as illness, family emergency, or misconduct.
Can a case in a federal court be tried with less than 6 jurors?
Yes. A case may be tried before and a verdict returned by less than a six-member jury, if the parties so stipulate.
Can a motion for a judgment as a matter of law be made at any time before the jury renders a verdict?
No. Only once the opposing party has been fully heard on the issue.
What is the standard for a judge to grant a motion for judgment as a matter of law?
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.
Is an opening statement sufficient for allowing the other party to move for a judgment as a matter of law?
No. Under Rule 50(a), only after 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 to reasonably find for that party.
Can a district court make a clerical correction after the judgment has been docketed in the appellate court?
No. A court may correct a clerical or other mistake resulting from oversight or omission on motion by a party or on its own initiative, with or without notice. Once an appeal has been docketed in the appellate court, such a correction can be made only with leave of the appellate court.
Does a class certification granting or denial automatically entitles a party to an immediate appeal with the appellate court?
No. An appellate court may, but is not required to, hear an immediate appeal of a certification decision rendered by the district court.
Is an injunction immediately appeallable?
Yes. While most interlocutory orders are not immediately appealable, certain equitable orders are reviewable immediately as a matter of right, including an order granting an injunction.
How many days does a party have to appeal a judgment or a certified order?
A judgment or order certified under Rule 54(b) must generally be appealed within 30 days from the date of the entry of the certified judgment.
What is the effect of a court of appeals permitting a party’s appeal on the district court proceedings?
If an appeal is permitted, it will not stay proceedings in the district court unless the district court or the court of appeals so orders.
Will a motion to dismiss not disposing of all parties and claims qualify as final judgment and thus allow an immediate appeal?
Only a final judgment is subject to immediate appeal. Usually, a judge’s 12(b)(6) dismissal is considered a “final judgment” subject to immediate appeal. When there are multiple claims and parties, any order or other decision that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties will not end the action as to any of the claims or parties, and it may be revised at any time before the entry of a judgment adjudicating all of the claims and all of the parties’ rights and liabilities.
What does Rule 15 say?
An amendment to change the named defendant relates back to the date of the original pleading if it asserts essentially the same claim or defense, and the new party knew or should have known of the potential action and received notice within 90 days after the filing of the original complaint.
What are the 3 special cases of Supplemental Jurisdiction?
1) In an implead of third-party Defendant, federal court cannot hear the claim from P against the 3rd party D if P and 3rd party D are from the same state;
2) Combos under Rule 20 must maintain complete diversity;
3) Combos under Rule 20 work to solve lack of minimum amount.
Rule 20. Permissive Joinder of Parties
Rule 20. Permissive Joinder of Parties
Primary tabs
(a) Persons Who May Join or Be Joined.
(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) 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
(B) any question of law or fact common to all plaintiffs will arise in the action.
(2) Defendants. Persons—as well as a vessel, cargo, or other property subject to admiralty process in rem—may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
(3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities.
(b) Protective Measures. The court may issue orders—including an order for separate trials—to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party.
When is diversity assessed in a case?
Only when the case is filed.
What is Rule 20?
Rule 20. Permissive Joinder of Parties
What is the most often tested rule about removal?
If the only source of federal jurisdiction would be diversity, D cannot remove unless no defendant is a citizen of the state in which the original state-court action is pending.
How many days does the P have to request a remand for a wrongly removed case?
30 days.
What is the 100-mile bulge provision?
The third-party defendant (TPD) may be served personally anywhere within 100 miles of the court where the action is filed, even if the TPD does not have minimum contacts with the state or district in which the case is pending.
What are the differences between the standards for SJ and JML?
SJ requires “no genuine disputes as to any material fact (scintilla?)”,
while the JML requires “legally sufficient evidentiary basis.”
When can the dismissal under Forum Non Conveniens be applied?
Only when the alternative forum is abroad. In domestic cases, there is no dismissal. The federal court must transfer the case to another federal court if more adequate.
When deciding if issue preclusion should be applied, will the federal court look at the state that issued the order or the state where it is siting in?
The state that issued the order due to the principle of full faith and credit.
What is the deadline for requesting a jury trial?
14 days after the last pleading directed at the issue (usually answer by the opposing party).
When is judgment on the pleadings appropriate?
When the pleadings say that there are no genuine issues of material fact in the case.
Is necessary diversity between defendants and third-party defendants?
No, because none of them are plaintiffs.
What is the standard that an appeal court must use when evaluating a trial’s court decision on which evidence to let in?
An abuse of discretion standard.
What is the usual deadline for appealing a judgment?
30 days. If missed, the court of appeals will lack jurisdiction.
Can a party demand another party to produce an employee for mental or physical examination?
Yes.
Do federal courts must first decide if they have jurisdiction before dismissing a case for forum non conveniens?
No. Federal courts may dismiss a case for forum non conveniens without first assessing if they have jurisdiction.
Can I aggregate claims to meet the minimum amount of 75,000.01 required for diversity cases?
Only if at least one of the Ps has a claim for the entire 75,000.01
When can Supplemental Jurisdiction allow a claim against a party in the same state as P to be hear (State A + State A)?
When the claim against the in-state party is attracted as related to a litigation connected with a Federal Question.
Can I hold a party that has not participated in a previous suit for a precluded claim?
Only if the claim precluded was related to derivative liability.
Are notice of claim requirements considered substantive for Eerie considerations?
Yes, since it will allow or deny a matter to be heard by a federal court.
Can an interpleader requested a federal court enjoining parties of entering actions in other state courts?
Yes.
Can an interpleader be requested to deposit the amount in controversy in full?
Yes.
In a limited partnership will residency be considered for only its general partners?
No, a limited partnership is a citizen of every state in which its general and limited partners are domiciled.