Civil Procedure Flashcards
When does the Home Court Advantage Rule prohibit removal from state to federal court?
When 1) Federal court’s subject matter jurisdiction arises from diversity of jurisdiction and 2) The defendant is a citizen of the state where the case was filed
True or False: Personal Jurisdiction can be waived
True
True of False: Subject Matter Jurisdiction can be waived
False
When is a motion to dismiss for lack of subject matter jurisdiction waived?
If it is not asserted in a pre-answer motion or in the answer itself
What is personal jurisdiction?
Jurisdiction over the person. It can be general or specific. General PJ requires continuous and regular contacts with the forum state (counter-intuitive). Specific PJ is satisfied with a single contact with the forum state
True or false: Failure to submit proof of service ruins the validity of service
False
When do you have to raise affirmative defenses?
In your answer
What does a Motion to Dismiss require?
1) That a court take any well pleaded facts as true and 2) That a court resolve any doubts or inferences in the complainant’s favor
True or False: A federal court will exercise supplemental jurisdiction over claims outside subject matter jurisdiction if the claims share a common nucleus of operative facts.
True
What is the Summary Judgment standard?
1) No genuine dispute as to any material fact and 2) Movant is entitled to judgment as a matter of law
When is diversity of citizenship determined?
At the time the complaint is filed
When may a federal court grant a preliminary injunction?
When 1) the movant is likely to succeed on the merits, 2) the movant is likely to suffer irreparable harm in the absence of relief, 3) the balance of equities is in the movant’s favor, and 4) the injunction is in the best interests of the public
Under Erie when does state law apply?
If 1) it is outcome determinative - i.e., forum-shopping or inequitable administration of the laws would result if it is not applied - and 2) there is no countervailing federal policy interest
How must someone object to an interrogatory?
With specificity. Any ground not stated in a timely objection is deemed waived unless the court, for good cause, excuses the failure.
What are the requirements for ordering a physical or mental exam?
The order may only be made upon motion, for good cause shown, and the person to be examined and all parties must be given prior notice specifying the time, place, conditions, and scope of the examination and the identity of the examiner.
What is the proper way to withhold information on the basis of a privilege?
The party must expressly state the claim of privilege and describe the materials or communications not produced in a manner that will enable other parties to assess the applicability of the privilege or protection
True or False: Specific Performance will not be granted when relief would be unfair.
True
Define Unclean hands
Unclean hands is a defense to an equitable remedy when the party who seeks equitable relief himself engages in serious misconduct in close relation to the claim.
Define Laches
Laches is the unreasonable delay in pursuing an equitable remedy in which the party was aware or should have been aware, that caused prejudice to the other party
True or False: Venue is never based off the plaintiff’s residence
True
True or False: A clerk can enter a default judgment
True. A clerk or the court can enter a default judgment
When must a clerk enter a default judgment?
- When the plaintiff’s claim is for a sum certain OR a sum that can be made certain by calculation
- The plaintiff’s request for default judgment includes an affidavit establishing the amount due
- The defendant failed to appear, and
- The defendant is not legally incompetent or a minor
Under federal law when is service by publication permissible?
Only when the defendant’s identity or address is unknown and unobtainable
Define venue
Venue refers to the federal judicial district where a case may be heard
How many preemptory challenges is each party entitled to in a civil action jury selection?
Three
Timing of Discovery
In general, a party may not seek discovery until after a Rule 26(f) discovery conference, unless ordered by the court, stipulated by the parties, or authorized by a specific rule
When is a judgment considered final?
When there is nothing further for the court to do but enforce the judgment. In CA, judgment is not final until the conclusion of the appeal or, if no appeal is taken, when the time for filing a notice of appeal expires
What factors are considered in determining what constitutes a transaction or series of transactions?
1) whether the facts are related in time, space, origin, or motivation
2) whether the facts form a convenient trial unit, and
3) whether treating the facts as a unit conforms to the parties’ expectations
True or False: The threat of future injury can give a plaintiff standing to seek damages.
False
For which of the following is the government required to provide a pre-deprivation hearing?
1) Termination of disability benefits
2) Termination of welfare benefits
3) Terminating a government employee who is employed “at will”
4) Dismissing students for academic reasons
Termination of welfare benefits
True or False: Drawing districts to scatter minorities and thus dilute their vote, even if done with a discriminatory purpose, is considered a political question and non-justiciable.
False
True or False: In applying the “adequate and independent state grounds” limitation on the US SC’s review of a state court decision - the US Supreme Court will not review a state court decision when the party claiming a federal right is successful under state law
True
Under the Takings Clause, when does a taking occur?
A taking occurs when a regulation amounts to a permanent, total loss of economic value in the land
The Fifteenth Amendment specifically gives Congress the power to eliminate racial discrimination in ______.
Voting
Under the Fourteenth Amendment, Congress _______ redefine or create new individual rights. This amendment ________ Congress the power to remedy violations of individual rights.
cannot; gives
The ______ test requires that a law be substantially related to an important government interest.
intermediate scrutiny
A _____ classification based on citizenship status is upheld unless the classification is _____.
federal, arbitrary and unreasonable
What is true regarding regulation of speech in a nonpublic forum?
The regulation must be neutral as to viewpoint
Campaign _______ a candidate may be limited in order to _____.
contributions to, prevent corruption
Relating to the regulation of commercial speech, the regulation must directly advance the governmental interest. True or False?
True
True or False: A taxpayer may challenge any federal action on the basis of a violation of the Establishment of Religion Clause
False
