Civil Procedure Flashcards
who can’t remove a case?
the plaintiff
why would a plaintiff file a lawsuit somewhere then remove it??
where and when can a defendant not remove a a case to?
their home state in a diversity action
how do cases get federal question status?
their cases ARISE under federal law
what is waiver and why would someone do it?
waiving service means that you are not making the other side formally serve your dumbass a complaint and summons to court.
you waive it to receive 60 days (or 90 foreign) to respond to a complaint rather than the standard 21 from day of service.
what is abuse of discretion? what is the key word?
when a judge has a CHOICE on what to do and makes a little judgment call based on his understanding of the law and facts.
the key word is PERMITTED.
who can enter the default judgment if no one shows up and doesn’t file a single thing? what is the process?
baby clerk
AFTER plaintiff submits an affidavit showing how much is owed.
When the amount is for a sum certain and the defendant who does not appear is not mentally disabled or a minor.
who can enter the default judgment if somebody shows up once then stops? what is the process?
daddy judge must enter the default after a hearing, which the other party must serve notice to at least 7 days before the hearing.
bench trial
when a case is “tried to the court”
a judge is the only one deciding the case.
under FRCP 52(a)(1) the judge needs to “find the facts specially and state the conclusions of law separately” either orally or written.
voluntary dismissal rules and what it operates as
you can voluntarily dismiss it once, but if you try to voluntarily dismiss it twice, you aren’t allowed to refile.
a second voluntary dismissal operates as an ADJUDICATION ON THE MERITS = YOUR SHITTY PRO SE LAWSUIT IS NOW DISMISSED WITH PREJUDICE.
motion for relief
basically saying “hey look.. you need to vacate or amend the judgment against me because some serious bullshit happened.” the court either dismisses the case, grants you a new trial, or changes the amount of money you have to pay.
motion for relief - 3 normal things
one year to bring them up.
mistake, fraud, newly discoverable evidence.
motion for relief - newly discoverable evidence
must be evidence that he could not have reasonably discovered without reasonable due diligence.
evidence they couldn’t have discovered if they tried.
motion for relief - three weird ass things
you have a reasonable time to file these
1. if the judgment is void (court lacks SMJ)
2. if the judgement is discharged (judgment has been fully paid)
3. any other reason that justifies relief
motion for relief - slip of the pen
anytime
If the court enters in a judgment for $1,000,000 instead of $10,000, you can get relief in this scenario ANY TIME (no time limit)
some BS evidence got admitted and you got lost, how do you attack the verdict?
look for the QUICKEST way.
if a judge lets in bad evidence and you lose, the best way to attack the verdict is a motion for a new trial
how can you get a motion for a new trial? (3)
- the jury does some crazy shit
- the judge fucks up
- the jury gives way too high of a verdict
you can’t move for renewed judgement as a matter of law unless…
you first move for a judgment as a matter of law (at the end of the plaintiffs or prosecutors case)
what would you be renewing? NOTHING
how do you win a renewed judgment as a matter of law? Sunny Skies
more than a mere scintilla of evidence
SS = Sunny Skies = Substantial or Scintilla
the answer will say “substantial evidence” or “more than a mere scintilla”
what word in an answer choice is always right
substantial
anytime the question says “personal jurisdiction”…
pick the answer with “minimum contacts”
what is the standard for judgment as a matter of law? large snake eat birds
they can only grant JMOL if the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for that party.
large snake eat birds = legally sufficient evidentiary basis
the citizenship of an LLC
is the citizenship of the states of its members. even general and limited partners.
can you extend a renewed judgment as a matter of law
no - 28 days and that’s fucking it.
what is legally sufficient evidence?
scenario 1: the other side has no facts about one of the elements
scenario 2: the other side has some really shitty facts