Civil Procedure Flashcards
When to demand a jury trial
A jury trial demand must be served no later than 14 days after service of the last pleading directed to the issue on which a jury is sought. A jury trial demand may be included in a pleading
Defendant Third Party Claim
A defendant may serve a third-party claim only on a nonparty “who is or may be liable to it for all or part of the claim against it.
The basis of the claim must be derivative liability
Juror Presumption of Bias: Previous Employment
Stock ownership or having worked for or having a spouse who works or worked for one of the litigants, has been found to create a presumption of bias that merits striking a potential juror for cause
Peremptory Challenges
Allow an attorney to disqualify a potential juror because the juror has displayed an attitude or characteristic that is unfavorable to the attorney’s client but that does not rise to the level of bias or a relationship to one of the litigants that would be grounds for a challenge for cause.
Jury Challenge For Cause
A challenge for cause requires the court’s objective determination as to whether the potential juror meets the statutory qualifications for jury duty. In making the determination, the court will consider only a potential juror’s relationship to one of the litigants or evidence of bias or prejudice regarding one of the litigants.
Abuse of Discretion Standard of Review
A determination as to whether evidence is irrelevant or highly prejudicial and should be excluded is within the trial court’s discretion because it requires an understanding of the entire case and the factual context in which the evidence is being offered
Request to extend discovery after summary judgment t
Rule 56(0) the non moving on a motion for summary judgement to submit an affidavit or declaration stating that more time is needed to take discovery before responding. The affidavit must specific what that discovery will be and how it will help in resisting the motion.
Failure to Attach Evidence in a Motion for Summary Judgement
A party moving for summary judgement does not need to disprove the nonmovant’s claim. It is enough for the moving to “point out” what appears to be a fatal gap in the proof.
Court Standard for Renewed Motion for Judgement as a Matter of Law
A court must let the jury’s verdict stand if there is substantial evidence - more than a scintilla - supporting the verdict, assuming that the jury resolved all disputed issues in the nonmovants favor
Example of when a Motion to Strike is Appropriate
The Elimination of an irrelevant defense
Legal vs Equitable Issues Presented
When both legal and equitable issues are presented in a case, a court must submit the legal issues to the jury first and then the court can resolve any remaining equitable issues. If any issues overlap, the court is bound by the jury’s resolution of the overlapping issues.
Does a court of appeals have jurisdiction only over final judgements?
Yes
Multiple Defendant Removal
If multiple defendants are served at different times and a later-served defendant initiatives removal, the earlier-served defendants may join in the removal, even if their original 30-day window has closed.
Where is venue proper?
Venue is proper in a judicial district in which a substantial part of the events giving rise to the claim occurred.
Exceptions to the General Rule that Diversity cases maybe removed to federal court
Nonremovable actions include:
1) certain claims under the Violence Against Women Act of 1994
2) Some actions against railroads
3) claims that arise under a state worker’s compensation law where the action was filed
Compulsory Counterclaim Amount in Controversy
If the claim does not meet the amount in controversy minimum for federal diversity jurisdiction, supplemental jurisdiction authorizes jurisdiction over claims that otherwise would not meet the amount in controversy require
(So long as original claim meets Fed Diversity Jurisdiction)
When can a court modify a pre trial order?
Court may ONLY modify the order issued after a final pre trial conference if it is to prevent manifest injustice.
Is additur allowed in Federal Court?
No, is not allowed in Federal Court, including those in diversity as it has been held unconstitutional under the 7th Amendment.
When the deposed Party is a corporation
When the named party is a corporation, in its notice or subpoena, a party may name as the despondent a public or private corporation, a partnership, an association, a governmental agency or other entity and must describe with reasonable particularity the matters for examination.
When is removal proper?
Removal is only proper to the federal district where the original state court action is pending
Where is proper venue for removal?
Proper venue for removal is the federal district court located in the state where the original case was filed.
Amendment by Right
A party may amend a pleading once as a matter of course within 21 days after serving it.
Factual Allegations of the Complaint
A complaint must contain sufficient factual allegations to allow a district court to find that the claim is plausible, not merely possible.
Minimum Contacts Property Ownership
A defendant who owns property in the forum that is entirely unrelated to the cause of action may not be subject to jurisdiction unless minimum contacts are established.
The mere presence of property within a state, which is unrelated to the lawsuit, and no other contacts with the forum, is insufficient to satisfy the requirements of due process.
