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Isabella Bar Study > Civil Procedure > Flashcards

Civil Procedure Flashcards

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1
Q

What is supplemental jurisdiction and what are the rules?

A

-Tacking on state claims in federal court
-Claims must share a common nucleus of operative fact
-Must have diversity if its not a FQ unless its a crossclaim

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2
Q

What factors will a court look at when determining if they will exercise supplemental jurisdiction?

A
  1. state law claim is complex
  2. state law issues predominate
  3. claims that had smj has been dismissed
  4. other compelling reasons
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3
Q

Two types of personal jurisdiction

A
  1. General
  2. Specific
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4
Q

General personal jurisdiction

A

D can be sued for anything generally

  1. Consent (Express or Implied)
  2. Presence
    -Continuous and systematic contacts
    -Present in forum when served
  3. Domicile
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5
Q

Specific personal juisdiction

A

minimum contacts

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6
Q

When must an objection to personal jurisdiction be raised?

A

In the first response (answer or motion) or it’s waived

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7
Q

Defendant may remove a case to federal court if:

A
  1. Federal court has SMJ
  2. All defendants agree
  3. No defendant is a resident of the forum state
  4. Removal is sought within 30 days of service/initial pleading
    -Must file a proper notice of removal

-In a diversity case, unless P acted in bad faith, D may not remove after one year

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8
Q

REMAND

A
  1. Must do so within 30 days after removal or objection is waived
  2. Remand for lack of SMJ may be made anytime
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9
Q

Abstentation Doctrines

A
  1. Fed court may decline to hear a case if it would intrude upon another court’s power
  2. Fed court may stay a case to await resolution of ambiguous state law in a pending state court case
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10
Q

Venue is proper in any district where:

A
  1. Any D resides if all defendants in the same state
  2. Substantial portion of the claim occured
  3. If none of those work then anywhere the D is subject to PJ
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11
Q

Transfer to proper venue

A

If the case is filed in the wrong menu, a court may either dismiss or transfer. The law of the transferee court will apply

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12
Q

Transfer to a more appropriate forum

A

Court can transfer a case to another district for the convenience of the parties and witnesses and in the interest of justice. There still needs to be proper smj and pj.

Law of the transferor court will apply in this case

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13
Q

Forum non conveniens

A

court with proper jurisdiction and venue may dismiss a case where the interests of justice show that it should be litigated in a different forum.

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14
Q

How to serve a defendant

A
  1. Serve with a summons and copy of complaint: state law service methods where fed court is located or service is made
  2. Leave a copy at individual’s dwelling w/ someone of suitable age and discretion who lives there
  3. Process server must be over 18 and not a party to the case.
  4. Must serve within 90 days of complaint being filed
  5. If D waives formal service of process they get 60 days instead of 21 to answer
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15
Q

Erie Doctrine

A

Fed law: procedure
State law: substantive

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16
Q

When does a complaint need to be served by after its been filed?

A

90 days

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17
Q

When must an answer or complaint (response) be served? And when can it be amended?

A

within 21 days of receiving complaint, or 60 if waived. An answer can be amended once within 21 days

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18
Q

New Claims and relate back

A

When deadline to amend has passed or statute of limitations has passed.

to join a claim not originally asserted:
-relates back if pleading concerns same conduct, transaction, or occurrence
-If the plaintiff had included the new claim in their initial complaint, would it have been timely filed? If so, leave to amend, if not, no new claim allowed

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19
Q

Relate Back-New Defendant

A

new defendant: will relate back if
-concerns same conduct, transaction, or occurrence as original complaint
-the new party must have been aware of the lawsuit within 90 days of the initial complaint being filed.
-new party knew or should have known they would have been named originally

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20
Q

What are the factors that will be assessed when granting preliminary injunctions and TROs

A
  1. Likelihood of success on the merits
  2. Irreparable harm to movant (immediate for TRO)
  3. Harm to movant outweighs harm to non-movant party
  4. Injunction is in public interest

-TRO not usually to exceed 14 days

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21
Q

What must be raised in a pre-answer motion?

A
  1. Motion for a more definite statement
  2. Motion to strike
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22
Q

What must be raised in the first responsive pleading? (answer)

A
  1. lack of PJ
  2. insufficient process/service of process
  3. improper venue
  4. Affirmative defenses (statute of limitations, etc.)
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23
Q

What can be raised at any time?

A
  1. failure to join a necessary party
  2. judgment on the pleadings
  3. Failure to state a valid claim or defense
  4. Lack of SMJ (even on appeal)
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24
Q

When does a case become a class action?

A
  1. define class and class claims, issues, defendants
  2. Appoint class counsel who must fairly and adequately represent the interests of the class
  3. AIC exceeds 5 mil
  4. Will not be practical to have individual cases
  5. Minimum diversity
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25
Q

Counterclaims

A

Permissive: Really anything
Compulsory: same transaction or occurence
-can’t bring a counterclaim if the statute has run when the P’s original complaint was filed

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26
Q

Cross-claims

A

same transaction or occurrence, not compulsory and can be brought later. MUST be filed with the answer or as an amendment

  1. Are the issues of fact and law the same?
  2. Would same evidence support?
  3. Is there a logical relationship between the claims?
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27
Q

Permissive Joinder

A
  1. the parties assert
    joint and several relief or the claim arises out of same transaction or occurrence;
  2. a common question of law or fact exists; and
  3. SMJ
28
Q

Required Joinder

A

Must be joined if party is necessary and joinder is feasible

  1. the court can’t grant complete relief without the party
  2. Absent party’s interest would be impaired
  3. Absence creates substantial risk of multiple liability
  4. SMJ and PJ
29
Q

What does a complaint need to consist of?

A

Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief

30
Q

How to qualify for a class action?

A

To qualify for a class action, all 4 requirements must be done:

  1. Numerosity: too many class members for practicable joinder (but there’s no magic number)
  2. Commonality: there must be some issue in common to all class members
  3. Typicality: class reps claims are typical of the claims of the class
  4. Representative adequate: class rep will fairly and adequately represent the class
31
Q

Impleader

A

also known as third-party actions. It comes up when a defendant seeks to bring another person into the action to help with their defense or demonstrate that the new party actually bears some liability in the case. ONLY if:

  1. 3rd party is or may be liable to that defendant
  2. for all or part of the claim against D in the action

“If I am liable, he’s liable to me” not “It’s not me, it’s him”

*If 3rd party is served within 100 miles of courthouse then theres PJ

32
Q

When to file an impleader claim?

A

D must file within 14 days of serving original answer otherwise leave of court is required

33
Q

Permissive Intervention

A

When a court may allow someone to join

  1. Files a timely motion and
  2. EIther
    (a) has a claim/defense that shares a common question of law/fact w/ the main action; or
    (b) is given a conditional right to intervene by federal statute

In weighing whether to allow permissive intervention, the court must
consider whether intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

34
Q

Types of joinder

A

Permissive
Required
Intervention (As A Right & Permissive)
Impleader
Interpleader
Class Action

35
Q

Intervention as a right

A

Intervention As A Right: when the court has to allow someone to join an action
1. Application to intervene is timely
2. An interest in the subject matter of the action
3. Protection of this interest would be impaired
4. Such interest is not adequately represented by existing parties in the action

36
Q

Interpleader

A

where a third party holds property or money claimed by two or more parties. This third party asks the court to decide who rightfully owns it, so they’re not stuck in the middle of a dispute.

  1. The third party (stakeholder) must have no interest in the disputed property.
  2. The stakeholders can’t decide who owns the property themselves.
  3. All parties with a claim to the property must be involved in the lawsuit.
  4. The court decides who rightfully owns the property and settles the dispute.
37
Q

Is notice needed for a TRO and preliminary injunction?

A

TRO-No
PI- yes

Can both be appealed

38
Q

What may parties discover? (Civ Pro)

A

Anything that is relevant and not privileged. Relevant information need not be admissible at trial so long as it appears relevant and proportional to the needs of the case

39
Q

Work Product

A

not discoverable unless there is a substantial need and undue hardship. However an attorney’s mental impressions are never discoverable

Work product is any material prepared in anticipation of litigation

40
Q

26(f) conference

A

Initial disclosures of DISS are made
1. Damages calculation
2. Insurance
3. Supporting witnesses
4. Supporting documents

21 days before 16(b) scheduling conference, must have 26(f) conference before seeking discovery. But can deliver request for production of documents before the conference

41
Q

Interrogatories

A

25 per side and a duty to supplement if information changes

42
Q

Initial disclosures

A

within 14 days after 26(f) conference
Must disclose
1. Damages calculation
2. Insurance
3. Supporting witnesses
4. Supporting documents

43
Q

Testifying expert disclosures

A

90 days before trial, required to disclose names of testifying experts with a report concerning their opinions, bases of opinions, qualifications, compensation

  1. Testifying may be deposed
  2. Non-testifying do not need to be disclosed
  3. Fact witnesses (witnesses who have facts independent of the litigation) may always be deposed even if they are non-testifying expertsP
44
Q

Pretrial disclosures

A

30 days before trial, party must disclose the identity and reports of experts, names of witnesses to be called at trial and docs and depositions the parties plan to offer at trial

-parties can object within 14 days after receiving disclosures. objections not made are waived unless there is good cause

45
Q

Depositions

A
  1. Up to 10 deposition: (1) limited to one day of no
    more than seven hours; and (2) proper notice is given, which essentially means
    reasonable written notice.
    -can do more must first either reach a stipulation with the other
    party where they agree to do so, or obtain leave of the court
46
Q

Rule 11

A

Signature requirements applying to all papers except discovery.

47
Q

How to serve parties in a foreign country?

A
  1. method allowed by international agreement
  2. as directed by a U.S. court
  3. method allowed by the country’s laws
  4. method directed by foreign official
  5. personal service (unless prohibited)
  6. BY CLERK OF THE COURT ONLY- mail (unless prohibited)
48
Q

factors a court will consider when evaluating whether to let a party amend their answer past the 21 days

A

(1) whether there will be/has been undue delay; (2) bad faith; (3) whether it will prejudice the opposing party; (4) whether the amendment is futile; (5) whether the moving party is doing so to abuse the process.

49
Q

What must a court decide if joinder is not feasible but there is still a required party?

A

must determine whether, in equity
and good conscience, the action should proceed among the existing parties or should be dismissed.

50
Q

A deposition can be used at trial to:

A

impeach or
if a party is unavailable

51
Q

Rule 11 Sanctions

A

if an improper paper is presented to the court. However if a motion is made by a party, the party must give them 21 days to fix it (safe harbor provision)

52
Q

Forum Selection Clause

A

When parties contract to litigate in a certain forum, if one party sues the other in violation of a FSC, defendant must seek to enforce FSC through a motion to enforce.

Once transferred, the court will apply its own choice of law rules

53
Q

JMOL and renewed JMOL

A

JMOL: made during trial but D has to present first
Renewed: after trial, but JMOL had to be raised. WITHIN 28 DAYS

should be granted only if no reasonable jury could find for the non-movant. Same standard as summary judgment

54
Q

Reasons for a motion for a new trial

A
  1. Error at trial makes judgment unfair
  2. New evidence
  3. Prejudicial misconduct
  4. Judgment against the weight of the evidence
  5. Verdict is excessive or inadequate
55
Q

Defaults and Dismissals before trial

A
  1. Default is entered by clerk if there is no timely answer
    -Clerk: without notice
    -Judge: notice 7 days before entry
    -Default may be set aside for good cause
  2. No progress dismissals
    -usually with prejudice, P cannot refile the lawsuit
  3. Involuntary dismissals (failing to comply with court order):
    -usually w/ prejudice
  4. Voluntary dismissals by plaintiff
    -usually w/o prejudice
56
Q

when does motion for a new trial need to be filed by?

A

Must be filed within 28 days of judgment

57
Q

Doctrine of mutuality

A

issue and claim preclusion

prevents a nonparty to a prior action from asserting preclusion against
a party to that action.

minority jurisdiction
determined by jurisdiction in which final determination was made

58
Q

Claim Preclusion

A

Same claim
Same parties
Final judgment on the merits

59
Q

Issue Preclusion

A

(1) the previous determination was necessary to the decision;
(2) final judgment on the merits; and
(3) the party being precluded from re-litigating the issue was adequately represented in the previous action

60
Q

When will a court grant summary judgment?

A

when the movant shows that: (1)
there is no genuine dispute as to any material fact, and (2) the movant is entitled to judgment as a matter of law

When reviewing the motion, the court must view the evidence in the light most favorable to the non-moving party. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. A fact is material if it might affect the outcome of the suit.

61
Q

Long Arm Statute

A

a law that gives a state the power to hear a case and enforce its laws against someone who isn’t physically present in that state but has done something that affects someone or something there. It’s like the state’s way of reaching out to grab someone who’s involved in a situation within its borders, even if they’re in another state.

62
Q

When may a verdict be set aside?

A
  1. jury didn’t follow instructions
  2. juror gave false testimony
  3. jurors got unauthorized evidence
  4. made inconsistent statements
  5. arrived at verdict by chance
63
Q

In fed court how many peremptory challenges does each side get for jury trial?

A

3 can be stricken for any reason except race or gender

64
Q

Motion for relief from judgment

A
  1. mistake, inadvertance, surprise, or excusable regret
  2. fraud, misrepresentation or misconduct
  3. new evidence that could not have been discovered
  4. judgment is void or has been satisfied, released, or discharged
  5. any other reasons

must be brought within one year of judgment

65
Q

Motion for judgment on the pleadings

A

more than 14 days before trial

A party may file a motion for judgment on the pleadings on the basis that no answer has been filed, or that the pleadings disclose that there are no material issues of fact to be resolved and that party is entitled to judgment as a matter of law.

66
Q

When does a 16(b) scheduling conference need to take place

A

Within 60 days after appearance of defendant and 90 days after complaint has been served whichever is earlier

67
Q

Final judgment rule, exceptions and definition

A

What is it
Needs to be finalized before being appealed

Exceptions
Interlocutory appeals: question of law that needs to be resolved early or will cause irreparable harm
Collateral Orders: separate from main case & will cause irreparable harm
Immediate Appeal: if lower court needs appellate court’s guidance to resolve issue efficiently

Isabella Bar Study (8 decks)

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