Civil Procedure Flashcards
Does failure to prove service of process affect the validity of the service?
No
Discuss the contents of an answer
Contents of answer
Required
Admissions & denials
Motions not waived
Affirmative defenses
Compulsory counterclaims
Permitted
Permissive counterclaims
Crossclaims
How may supplemental jurisdiction affect multiple plaintiffs with differing amounts for recovery?
When a dispute involves multiple claims and only some fall within the court’s original subject-matter jurisdiction (as seen here), the court may exercise supplemental jurisdiction over the other claims. This is generally permitted when these supplemental claims share a common nucleus of operative facts with a claim within the court’s original subject-matter jurisdiction. But when that claim is based solely on diversity jurisdiction, supplemental jurisdiction is not permitted if a supplemental claim:
would contaminate diversity of citizenship—not seen here because the younger passenger and the pilot are citizens of different states (Choice D)—or
seeks $75,000 or less and is made by a plaintiff (1) against parties added through joinder, intervention, or impleader or (2) seeking to join through compulsory joinder or intervention—neither of which is seen here.
What must the DC judge do when considering a JMOL?
view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant
disregard any evidence favorable to the movant that the jury is not required to believe and
not consider the credibility of witnesses or evaluate the weight of evidence.
From what does a compulsory counterclaim arise?
The same transaction or occurrence as the opposing party’s claim
Waiver of service implicates:
A D’s duty to avoid unnecessary expenses of serving summons
They get 60 days to answer if they waive, and they must reply to a request to waive within 30 days.
For documents (such as pleadings) filed with the court, the attorney
Must sign the documents and thereby certifying that the document is not being presented for an improper purpose and thus avoiding being sanctioned for a false certification
Is supplemental jurisdiction permitted for intervention when jurisdiction is based on diversity?
No
An amendment relates back to the date of the original filing if it concerns the same
Conduct, transaction, and occurrence
Name the roles in an interpleader action
The person holding the property is the stakeholder and the person claiming the property is the claimant
What may be used to support a motion for summary judgment?
Deposition, answers to interrogatories, an affidavit
May a deposition of an adverse party be admissible as an admissible of a party opponent?
Yes
What is the standard for setting aside judicial findings of fact?
Clearly erroneous
What is the test for discovery, and what are some limitations?
Is the information sought relevant to any party’s claim or defense? Generally, this information need not be admissible. The information cannot be privileged, they cannot be documents that were prepared in anticipation of litigation or for trial by or for another party or its representatives. The exception is if the party shows that it has a substantial need for the materials and cannot, without undue hardship, obtain their substantial equivalent by other means.
Discuss spoliation
Negligent or intentional destruction or significant alteration of evidence required for discovery. When litigation is reasonably anticipated, even if it has not yet started, potential litigants in possession of potentially relevant evidence have a duty to preserve such evidence. Once triggered, the party in possession of the evidence must take reasonable measures to preserve it.
When may spoliation sanction be levied?
When a party has failed to take reasonable steps to preserve evidence that should have been preserved in the anticipation or conduct of litigation and only if the information cannot be restored or replaced by additional discovery.
If the court finds that the party acted with the purpose of depriving the other party of the evidence’s use in litigation then the sanctions include:
(i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party; (ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or (iii) an entry of a default judgment against the party.
How does the “bulge rule” affect personal jurisdiction?
federal courts to acquire personal jurisdiction over a party who is:
added to the suit through impleader (i.e., third-party practice) or required joinder and
served with process within 100 miles of the federal court where the suit is pending—even if the party is served in another state.
What is the effect of jury polling?
a verdict must be unanimous and returned by at least six jurors. To determine whether a verdict is unanimous, the court may poll the jurors individually after a verdict is returned but before the jury is discharged. This must be done upon a party’s request, or the court may do so on its own initiative (i.e., sua sponte). If the poll reveals that the verdict is not unanimous, the court can either order a new trial OR direct the jury to deliberate further
What are the requirements for a preliminary injunction?
the movant is likely to succeed on the merits
the movant is likely to suffer irreparable harm—i.e., an injury that cannot be compensated by monetary damages—in the absence of relief
the balance of equities is in the movant’s favor—i.e., the harm to the movant absent an injunction outweighs the harm an injunction would cause to the nonmovant(s)—and
the injunction is in the best interests of the public—e.g., enforcement of contractual rights and obligations protects the freedom to contract.
When may a party demand a trial by jury?
Under Federal Rule of Civil Procedure 38, a party may demand a jury trial on any triable issue—i.e., any legal claim where the amount in controversy exceeds $20—by:
serving the other parties with a written jury trial demand no later than 14 calendar days after the last pleading directed to that issue is served (here, the funeral home’s answer and
filing the jury trial demand with the court within a reasonable time after service of the demand.
When is a subpoena for a deposition not enough?`
the deposition exceeds the 10-deposition limit (which includes both oral and written depositions)
the deposition is sought before the parties’ initial planning conference* or
the deponent was already deposed in the action.
What are the exceptions to the final judgment rule?
Injunction, class certification, receiver, admiralty, certification by DC, collateral order, bankruptcy, mandamus, patent infringement order
How may a DC correct an error?
A district court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record. The court may do so on its own initiative (i.e., sua sponte) or pursuant to a party’s motion before an appeal from the judgment or order is docketed. But after an appeal is docketed, the district court can correct the mistake only with the appellate court’s leave
A party may file for relief from judgment when…
Federal Rule of Civil Procedure 60(b) allows a party to move for extraordinary relief from a final judgment or court order on limited grounds. This motion may generally be made within a reasonable time, but it must be made within one year from the entry of a final judgment or order when based on any of the following grounds:
The judgment or order was due to mistake, inadvertence, surprise, or excusable neglect by the parties or the court.
The moving party discovered new evidence that could not have been discovered with reasonable diligence in time to move for a new trial—i.e., within 28 days of the entry of final judgment.
The opposing party engaged in fraud, misrepresentation, or misconduct.
How do federal courts treat forum selection clauses in contracts when analyzing venue?
Most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. Furthermore, the Supreme Court has held that a forum selection clause should be given “controlling weight in all but the most exceptional cases.” When venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the conflict-of-law rules, of the state in which it is located.
Can a defendant assert waivable defenses in an amendment as of right?
Yes
What is the effect of an involuntary dismissal under FRCP 41?
This is functionally an adjudication on the merits unless the court orders otherwise. The P’s action is dismissed with prejudice, precluding the P from suing the D on the same claim in the future.
How is service proper?
following the rules of the state where the court sits or where service is made
having process delivered to the defendant personally (or to an agent authorized to receive process) or
having process delivered to the defendant’s dwelling and left with a resident of suitable age and discretion—i.e., old enough to possess the limited capacity necessary to comprehend the situation.
