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.
What should a court sitting in diversity do when confronted with an unclear conflict between state and federal law in the same area?
When it is unclear whether an issue before the court is substantive or procedural, the court must determine if there is a conflict between state and federal law with respect to the issue. If no conflict exists, then the court can harmoniously apply state and federal law to the issue.
What does a court do when it is unclear whether an issue is substantive or procedural?
The court must determine if there is a conflict between state and federal law. If a conflict exists, then the federal-rule analysis provides that a valid federal rule that directly addresses the issue applies if the rule:
is arguably procedural and
does not abridge, modify, or enlarge a substantive right.
Can parties stipulate to fewer than 6 jurors?
Yes.
Can additur (or an adjustment of the amount of damages) be used to disincentivize a new trial?
No
What is the two dismissal rule?
It converts a second dismissal to dismissal with prejudiceThis rule applies when:
the plaintiff’s first action was voluntarily dismissed without a court order in state or federal court and
the plaintiff brought a second action on the same claim in federal court and filed a notice of voluntary dismissal.*
If the judge selects a general verdict with special interrogatories and the jury’s answers are inconsistent with the verdict, the judge must:
order a new trial
direct the jury to further consider its answers and verdict or
disregard the jury’s verdict and enter a judgment consistent with the answers provided.
Statutory Interpleader requires what?
subject-matter jurisdiction – requires an amount in controversy of at least $500 and minimal diversity of citizenship between at least two claimants
personal jurisdiction – exists over any claimant who is served with process anywhere within the U.S.
venue – proper in any judicial district where any claimant resides and
deposit – requires the stakeholder to deposit the property at issue with the court or post a bond in an amount determined by the court
Does a permissive counterclaim qualify for supplemental jurisdiction?
No. A permissive counterclaim does not qualify for supplemental jurisdiction and therefore must satisfy the jurisdictional amount and the rule of complete diversity.
What is the rule for removal from a state court to a federal court when it is based on diversity jurisdiction?
The claim may be removed only if no defendant is a citizen of the state in which the action was filed
When may a court grant a renewed JMOL?
If the court finds that there is insufficient evidence for a jury reasonably to find for that party
Is an order regarding the appointment of a receiver immediately appealable?
Yes.
How is the legal ruling of a lower court reviewed?
De novo
What is the state of domicile for the legal representative of a decedent’s estate?
The state of the decedent.
What is a stateless person for the purposes of diversity jurisdiction?
(1) noncitizens present in the U.S. but not citizens of a foreign country or (2) U.S. citizens domiciled in a foreign country.
Diverse citizenship cannot be established if the suit involves stateless persons
Due process only permits application of long-arm statutes when:
the plaintiff’s claim arises from or is closely related to the defendant’s minimum contacts with the forum state and
the exercise of jurisdiction complies with notions of fair play and substantial justice.
May the plaintiff serve process?
No
A party may dismiss a crossclaim, counterclaim, or third party claim without court order when
all parties who have appeared sign stipulation of dismissal or
claimant files notice of dismissal before (1) responsive pleading (eg, answer) served or (2) evidence introduced at hearing or trial (if no responsive pleading served)
If a D lacks minimum contacts with the forum state, the federal rules permit a federal court to acquire personal jurisdiction over the D when:
the plaintiff asserts a federal-law claim
the defendant is not subject to personal jurisdiction in any state court and
the exercise of jurisdiction would be consistent with the U.S. Constitution and federal laws—i.e., the defendant has minimum contacts with the United States as a whole.*
The forum-defendant rule prohibits removal when:
subject-matter jurisdiction arises solely from diversity jurisdiction and
a defendant is a citizen of the state in which the case was filed (i.e., the forum state).
When must a response to an amendment pleading be provided?
by the later of the following deadlines:
The time remaining to respond to the original pleading—e.g., an answer is generally due within 21 days after service of process
14 days after the service of the amended pleading*
When is notice to class members not required in the certification of a class action suit?
In “prejudicial risk” and “final equitable relief” class actions, notice is not required because class members do not have a right to opt out.
What are the three types of class actions?
Prejudicial risk – when separate actions would create a risk of inconsistent decisions regarding the parties or impairing absent class members’ interests
Common question – when common questions of law or fact predominate over individual questions and a class action is the best method to fairly and efficiently adjudicate the dispute
Final equitable relief – when injunctive or declaratory relief is appropriate because the opposing party’s actions generally apply to the whole class
facts known and opinions held by an expert not expected to testify, including the expert’s identity, are privileged and not discoverable unless:
that information relates to a court-ordered physical or mental examination or
exceptional circumstances make it impracticable to obtain the information by other means—e.g., a party dies and cannot be evaluated.
May a judge order a new trial only on damages?
Yes. If damages are excessive, the judge can use reminitur or order a new trial.
What is the rule for bringing multiple claims from the same transaction or occurrence in federal court?
If a P sues on fewer than all claims arising from the same transaction, the unraised claims merge if they win or are barred if they lose.
How long before the trial must an expert’s report be produced?
90 days, unless the disclosure was delayed and harmless.
When is voluntary dismissal appropriate?
Before an answer is served or a motion for summary judgment.
What is the rule for a 6 person jury.
They are permissible, but the verdict must be unanimous.
Can a party plead inconsistent alternative allegations?
Yes
What does a party need to do for a TRO when notice is not required?
They need to file a written certificate why notice is not provided.
What is the rule for liability insurance in discovery?
Must be disclosed if the insurance agency could be a payor.
Minimum Contacts
Purposeful availment of a forum state’s slaws so suit is foreseeable
Stream of commerce: D places goods in stream of commerce and takes actions that intentionally targets forum state
Effects: D commits intentional tort in one state
Fair play and substantial justice
Burden on the D to appear and defend, P’s interest in relief in forum state, forum state’s interest, interstate judicial system’s interest in obtaining the most efficient resolution of disputes, and interest of several states in furthering fundamental substantive social policies
When venue is transferred, how does a federal court determine venue?
The law depends on whether the original venue was proper.
If proper and under diversity: apply the choice of law rules for the original court
if improper and diversity: apply the choice of law of the receiving court
When may a federal court exercise federal-question jurisdiction when the state law creates a cause of action.
When the complaint raises a real and substantial issue of federal law, and the outcome necessarily depends on resolving this federal issue.
When there are both legal and equitable claims in an action, how is the order of adjudication decided?
If an action involves both legal and equitable claims and there are common factual issues, then the jury determines the legal claims first and the court subsequently determines the equitable claims.
When can a party seek extraordinary relief from a DC’s final judgment?
Within one year of the entry of the final judgment when there was a
Mistake, inadvertence, surprise, excusable neglect,
Newly discovered evidence
Fraud, misrepresentation, misconduct
Within “reasonable time”
Void judgment (lack of jurisdiction)
judgment (satisfied, released, discharged; based on reversed or vacated judgment or will violate equity if applied prospectively)
Other reason justifying relief
Interpleader comes in two forms. What are they and when are they used?
Rule interpleader: the action involves a FQ or that the amount is over 75k and there is complete diversity between the stakeholder and the claimants, so citizens of different states.
Statutory interpleader: an amount of controversy of at least $500 and minimal diversity between the claimants, so at least two claimants are citizens of different states.
Grounds for a new trial are
Prejudicial trial error
Prejudicial misconduct by judge, attorney, party, or juror
Verdict not supported by clear weight of the evidence
Verdict based on false/nonexistent evidence
Excessive or inadequate damages
Newly discovered evidence
When is service proper when the federal government is being sued?
Service must be given to the US attorney for the district where the action is or to the civil process clerk via registered or certified mail, the US attorney general by the same, and to the agency or officer whose conduct is challenged via registered or certified mail.
What are the timing requirements for requests for production?
21 days after service of process. When the request is served after the initial planning conference, the party receiving the request must serve a response in writing within 30 days of service. If an early request for production is delivered before the initial planning conference, the response is not due until 30 days after the conference.
A rule 11 sanction can be levied…
On the court’s own initiative after an order to show cause or by the party’s motion if filed 21 days after serving it to the party.
