Civil Procedure Flashcards
A federal court has FQ jurisdiction over a claim. A second claim is heard pursuant to the court’s supplemental jurisdiction. The FQ claim is subsequently dismissed. What are the court’s options as to the remaining state law claim?
The court may hear the case or dismiss it. Dismissal is generally preferred unless it is better to hear it in the interests of judicial economy (for example, if the FQ claim is dismissed at the start of trial).
When must a defendant request a transfer of venue where the original venue is proper?
There is no specific time frame. This decision is left to the discretion of the trial judge.
Note that this motion does not fall under Rule 12 (rule 12 governs motions for IMPROPER venue)
Is there a date after which it is completely impermissible to request leave to amend?
No. A party has 21 days to amend as a matter of course, but after that time a party has the right to request leave to amend, which should be “freely given when justice so requires.”
A plaintiff sued a defendant in federal court for medical malpractice. During jury selection, the defendant’s attorney asked the potential jurors whether they had ever been involved in a medical malpractice lawsuit. One potential juror stated that he had been a plaintiff in a medical malpractice case and was distrustful of doctors because of his experience. The defendant’s attorney used a peremptory strike against this potential juror. Another potential juror, a doctor, had been sued for medical malpractice twice in the past, but she denied ever being involved in a medical malpractice suit. She was selected for the jury along with 11 others. During the course of the trial, one juror was excused because he became ill. The case went to the jury, and the 11 jurors returned with a unanimous verdict for the defendant. Shortly thereafter, the plaintiff discovered through independent investigation that the juror who was a doctor had lied. The plaintiff filed a motion for a new trial on the grounds that the defendant’s attorney had exercised his peremptory strike for an improper reason, that a juror lied during the jury selection process, and that the verdict was rendered by less than the required 12 jurors.
Is the court likely to grant the plaintiff’s motion?
Yes, only on the grounds that a juror lied during the jury selection process.
A new trial is appropriate if a juror gave false testimony on vior dire or concealed materialfacts relating to her qualifications to serve.
When is a jury trial required in federal court?
A jury trial is required for the determination of facts in all suits at common law when the amount in controversy exceeds $20.
A clerical error is one arising from oversight or omission.
If a party seeks to correct a clerical error in a judgment, it must:
make a motion for correction at any time.
The court may also make a correction at any time.
When must a party appeal a final judgment?
Within 30 days.
If a post-trial motion is timely filed, the parties are granted a new 30-day period starting when the order based on such motion is entered.
How can a party object to the failure to state a sufficient defense?
This issue can be raised in a motion to strike,in a motion for judgment on the pleadings, or at trial.
When does federal question jurisdiction arise for a “federal corporation”?
When the United States owns more than 1/2 of the corporation’s capital stock. In this case, the corporation is treated as a federal agency that can sue or be sued on that basis in federal court.
When must a party file a renewed motion for judgment as a matter of law?
No later than 28 days after the entry of judgment (and only if the party previously lied a motion for judgment as a matter of law).
What is the difference between a special verdict and a general verdict with special interrogatories?
In a special verdict, the jury answers a series of questions regarding each ultimate fact, then the court makes legal conclusions based on those facts.
In a general verdict with special interrogatories, the jury answers specific questions of fact and also finds for the plaintiff or defendant and determines the damages or relief to be given.
Errors in regard to the completion and return of depositions are waived unless:
A motion to supress is made with reasonable promptness after the error was or should have been discovered.
When may a judge sua sponte order a new trial on the ground of an excessive jury award?
When the award is so excessive as to shock the conscience (or whatever state standard applies in a diversity case).
If a case involving multiple defendants is removed to federal court on the basis of a federal question being presented, and some of the defendants have only state law claims that cannot invoke diversity or supplemental jurisdiction, _______ are required to join in the removal.
Only those defendants against whom a federal claim is asserted
The entire case is removed to federal court, and the state law claims are then severed and remanded back to state court.
A written agreement to arbitrate is valid unless _____.
A contractual ground for revocation exists, such as fraud, illegality, or unconscionability
An inventor sued a rival in federal court for violating the inventor’s patent. At a deposition attended by lawyers for both parties, the rival gave convincing testimony that his product was completely different from that of the inventor. Just before trial, the rival began serving a four-year sentence in the state penitentiary. The rival’s lawyer considered the inventor’s suit to be a nuisance action, and was certain that the rival’s deposition testimony was all that she would need to introduce at trial to win the case. The inventor’s lawyer objects to having the deposition read into evidence, arguing that a party’s deposition may not be used in this way.
Will the court allow the deposition to be used?
Yes, because the witnessis unavailable. Imprisonment is one cause of unavailability.
When must a motion to strike be filed?
Before responding to a pleading or within 21 days after service of a pleading if no responsive pleading is permitted.
When can a judgment from a federal district court be enforced?
30 days after it is entered, except injunctions and receiverships
When may a third-party defendant assert a claim against the original plaintiff?
When the claim arises from the same transaction or occurrence that is the subject of the plaintiff’s original claims.
May a nonjuror give evidence of misconduct by citing a declaration made by a juror to the nonjuror?
No
To avoid an accident with a motorcyclist from State A, a truck driver from State B drove his truck off the road, damaging the front porch of a home in State C. Immediately after the accident, the truck driver and the homeowner got into a heated argument, and the truck driver assaulted the homeowner.
The homeowner sued the truck driver in a federal court in State C, seeking $50,000 for property damage caused by the truck driver’s negligent driving and $30,000 for personal injuries caused by the assault. The truck driver then impleaded the motorcyclist, alleging that the motorcyclist’s negligent driving caused the truck driver to swerve into the homeowner’s porch. Under the law of State C, joint tortfeasors are jointly and severally liable for the entirety of the plaintiff’s loss regardless of each tortfeasor’s degree of fault.
Is there supplemental jurisdiction over the homeowner’s claim against the motorcyclist?
No. Supplemental jurisdiction is not available to claims by plaintiffs against persons made parties under Rule 14 (i.e. an impleaded party).
What are the grounds for requesting a relief from judgment and what are the relevant time limits?
(1) clerical errors - no time limit
(2) mistake, inadvertence, surprise, excusable neglect - reasonable time within one year
(3) newly discovered evidence that could not have been discovered in time to move for a new trial - reasonable time within one year
(4) fraud, misrepresentation, or other misconduct - reasonable time within one year
(5) void judgment - reasonable time
(6) judgment has been satisfied - reasonable time
(7) a prior judgment on which the judgment is based has been reversed or vacated - reasonable time
Can a motion for a new trial be appealed?
No, because it is not a final judgment.
What is the Semtek rule?
Federal common law governs the claim preclusive effect of a dismissal or judgment by a federal court sitting in diversity.
Federal common law requires that a diversity court judgment has the same effect on a later action that such a dismissal would have if it had been issued by the state court where the federal diversity court was sitting.
When is a party required to disclose a consulting expert’s opinions?
When there are exception circumstances under which it would be impracticable to obtain facts or opinions by other means.
When may a final pretrial order be amended?
Only to prevent manifest injustice
When should a court give leave to amend a pleading?
The court should freely give leave to amend if justice so requires.
What is the standard for amending a pretrial scheduling order?
Good cause
When does service of process establish personal jurisdiction over a defendant?
(1) when the defendant is subject to general personal jurisdiction in the state where the district court is located
(2) when the defendant is a party joined under Rule 14 (impleader) or Rule 19 (required party joinder) and is served not more than 100 miles from where the summons was issued
(3) as otherwise authorized by federal statute.
When may a defendant bring a third party into a lawsuit?
When the third party may be liable to the defendant for all or part of the claim against the defendant.
When an action presents more than one claim or when multiple parties are involved, when may an order as to one claim or one party be immediately appealed?
If the court expressly determines that there is no just reason for delay and the court directs entry of a final judgment.
When must a party be joined?
When joinder will not deprive the court of subject-matter jurisdiction and:
(1) in that person’s absence, the court cannot accord complete relief among existing parties
(2) disposing of the action in the person’s absence may impair or impede the person’s ability to protect the interest
(3) disposing of the action in the person’s absence may leave an existing party subject to a substantial risk of incurring inconsistent obligations
If a person who is required to be joined cannot be joined, what result?
The court must determine whether, “in equity or good conscience,” the action should proceed or be dismissed.
Factors to consider include:
- the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties
- the extent to which prejudice could be avoided by protective measures
- whether a judgment rendered in the person’s absence would be adequate
- whether the plaintiff would have an adequate alternate remedy if the action were dismissed
When does an amended complaint relate back to the date of original filing for statute of limitations purposes?
When the claim stems from the same facts alleged in the original complaint, and the statute of limitations had not expired at the time of the original filing.
Is a dismissal for lack of prosecution on the merits?
Yes, unless the court designates the order as a dismissal without prejudice.
When is a default judgment subject to collateral attack?
When the default judgment is constitutionally or procedurally defective.
What is an example of a procedural defect that will permit a defendant to collaterally attack a default judgment?
Insufficient service of process.
What are the factors considered in determining whether the exercise of PJ does not offend traditional notions of fair play and substantial justice?
(1) convenience - if defending the case in the forum is “so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent
(2) forum state’s interest in providing redress for its residents
(3) plaintiff’s interest in obtaining convenient and effective relief
(4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies
(5) the shared interest of the states in furthering fundamental substantial social policies
When must the court award costs to a party making a motion to compel the production of evidence?
Costs must be awarded unless:
- the movant did not attempt in good faith to obtain the discovery without court action
- the opposing party’s nondisclosure was substantially justified
- other circumstances exist that make an award of expenses unjustified
