Civil Procedure Flashcards
When must a court quash or modify a subpoena?
Subpoenas that: fail to allow a reasonable time to comply, requires person to comply beyond geographical limits, requires disclosure of privileged or protected matter, or subjects person to undue burden.
When may a court quash or modify a subpoena?
Subpoenas that require disclosing: unretained expert’s opinion or information that (1) does not describe occurrences in dispute and (2) results from expert’s study not requested by party; trade secret or confidential research, development, or commercial information
If a party fails to object at trial, when can a challenged error be reviewed?
It can be reviewed for plain error– obvious error that affected a substantial right and the fairness of judicial proceedings
What are the three types of class actions?
(1) Risk of Prejudice: The class is maintainable if the prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or if prosecution of the claims through separate actions would impair the interests of the class members.
(2) Final Equitable Relief: A class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party.
(3) Common Legal or Factual Questions: A class can be certified if questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method for bringing about a fair and efficient adjudication of the controversy.
When is a default and default judgment entered against a party?
A default occurs when a party has failed to plead or otherwise defend an action, and that failure is shown by affidavit or otherwise; the court clerk must then enter the party’s default.
Once a default is entered against a party, the plaintiff may seek a default judgment from the court clerk (if relief sought is a sum certain or an amount that can be made certain by computation and the defaulting party is not a minor or incompetent) or otherwise apply to the court itself.
What seven defenses may be raised in a motion filed under Rule 12(b)?
(i) Lack of subject matter jurisdiction
(ii) Lack of personal jurisdiction;
(iii) Improper venue;
(iv) Insufficient process;
(v) Insufficient service of process;
(vi) Failure to state a claim upon which relief can be granted; and
(vii) Failure to join a necessary or indispensable party under Rule 19.
May a single plaintiff aggregate claims against multiple defendants to satisfy the amount-in-controversy requirement?
When a single plaintiff sues multiple defendants, the value of the plaintiff’s claims against each defendant may not be aggregated if the claims are separate and distinct.
If the defendants are jointly liable to the plaintiff, then aggregation to meet the amount-in-controversy requirement is permissible.
Under the Erie Doctrine, what law governs in a diversity action?
In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located, if there is no federal law on point. The district court will apply federal procedural law, even if a state rule or statute is in conflict.
How many peremptory challenges and challenges for cause does a party have?
Each party in a civil case gets three peremptory challenges. Each party is entitled to an unlimited number of challenges for cause.
How is a corporation’s “principal place of business” determined?
“Principal place of business” refers to the “nerve center” of the corporation. The nerve center is generally the location from which the high-level officers direct, control, and coordinate the activities of the corporation. Typically, the nerve center is the corporate headquarters.
What is an impleader?
An impleader (third-party claim) are claims that are made by a defending party against a nonparty for all or part of the defending party’s liability on an original claim.
When must an objection to improper venue be raised?
An objection to improper venue must be raised in a pre-answer motion to dismiss under Rule 12(b)(3) or in the first responsive pleading, if a motion under Rule 12(b)(3) is not filed.
Generally, where is venue proper?
(i) A judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or
(ii) A judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located.
When and how is the amount in controversy determined for diversity jurisdiction purposes?
The amount in controversy must exceed $75,000, exclusive of interest, costs, and collateral effects of a judgment. The amount in controversy is determined at the time the action is commenced in federal court, or, if the action has been removed to federal court, at the time of the removal.
Note: Attorney’s fees may be included in the calculation if recoverable by contract or statute, and punitive damages may possibly be included as well.
How much time does a party have to respond to interrogatories?
The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.
Note: The court may order or the parties may stipulate to a shorter or longer time.
For purposes of venue, where does a defendant business entity reside?
A business entity is deemed to reside in any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question.
Note: If the entity is a plaintiff, then it is deemed to reside only in the judicial district in which it maintains its principal place of business.
When a case is removable from the outset, how does a defendant begin the process for removal?
A defendant who wants to remove a state court action to federal district court generally must file a notice of removal with the district court within 30 days after receipt or service of the initial pleading or summons.
When the relief sought is an injunction, how is the amount in controversy determined for jurisdiction purposes?
In the case of injunctive relief, when it is difficult to assess a dollar amount, some courts consider only the value of the injunction to the plaintiff in determining the amount in controversy and other courts consider the greater of the value to the plaintiff of the removal of the harm or the cost to the defendant of complying with the injunction in determining the amount in controversy.
How may an individual within the U.S. be served?
Service may be made within the state in which the federal district court sits by:
(i) Personally serving the summons and complaint on the defendant;
(ii) Leaving the summons and complaint at the defendant’s usual place of abode with a person of suitable age and discretion who resides there; or
(iii) Delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.
When may a party file a renewed motion for judgment as a matter of law?
The movant may file a renewed motion for judgment as a matter of law no later than 28 days after the entry of judgment. If the motion addresses a jury issue not decided by a verdict, then the renewed motion must be filed no later than 28 days after the jury was discharged.
When can a party amend a pleading?
Under Rule 15(a), a party may amend a pleading:
(i) Once as of right within 21 days if no responsive pleading is required; or
(ii) If a responsive pleading is required, within 21 days of service of the responsive pleading or within 21 days of being served with a motion under Rule 12(b), whichever is earlier.
Additionally, the court should freely give leave to amend a pleading when justice so requires.
When are two claims considered related for purposes of supplemental jurisdiction?
When the claims arise out of a common nucleus of operative fact
Under Rule 20 permissive joinder, does the defendant to be joined have to meet the requirements of federal subject matter jurisdiction?
If the claims are made solely on the basis of diversity jurisdiction, there must be complete diversity between the plaintiffs and the defendants, and each claim must exceed the jurisdiction amount in controversy of $75,000.
Who is responsible for serving the summons and complaint, and when must it be served?
The plaintiff is responsible for serving the summons and complaint upon the defendant within 90 days after filing the complaint.
What interlocutory orders are immediately appealable?
28 USC 1292(a) makes certain equitable orders reviewable immediately as a matter of right, including:
(i) An order granting, modifying, refusing, or dissolving an injunction;
(ii) An order appointing or refusing to appoint a receiver; and
(iii) A decree determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.
What is removal jurisdiction and who generally has the right to remove?
Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed to the district court for the district and division in which the state court action is pending.
Generally, the right of removal is a right of the defendant. Removal itself does not raise any personal jurisdiction issues.
What are the three types of mandatory disclosures?
Rule 26(a) requires the parties to make:
(i) Initial disclosures;
(ii) Disclosures of expert testimony 90 days before trial; and
(iii) Pretrial disclosures 30 days before trial.
Who has the burden of proof in a claim for summary judgment?
The movant has the burden of persuasion on a motion for summary judgment. Once the movant makes a prima facie showing that summary judgment is appropriate, the burden shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of fact for trial.
What are the four requirements for a class action?
(i) The class must be so numerous that joinder of all members is impracticable (numerosity);
(ii) There must be questions of law or fact that are common to the class (commonality);
(iii) The claims or defenses of the representatives must be typical of the class (typicality); and
(iv) The representatives must fairly and adequately protect the interests of the class (adequacy).
What is the rule for removal when there are multiple defendants?
In general, all defendants who have been properly joined and served are required to join in or consent to the removal. If the defendants are served at different times and a later-served defendant files a notice of removal, then any earlier-served defendant may join in the removal even though that defendant did not previously initiate or consent to removal.
Note: In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal.
What is the standard of review used by appellate courts for legal rulings?
In general, appellate review of legal rulings is de novo (i.e., without deference to the trial court’s legal rulings).
Under Rule 20 permissive joinder, does the plaintiff to be joined have to meet the requirements of federal subject matter jurisdiction?
If multiple plaintiffs join together under Rule 20, then supplemental jurisdiction can exist for a claim that does not meet the statutory jurisdictional amount, provided the parties still meet the requirements of complete diversity.
What are the requirements for a plaintiff seeking a preliminary injunction?
A plaintiff seeking a preliminary injunction must establish that:
(i) He is likely to succeed on the merits;
(ii) He is likely to suffer irreparable harm in the absence of relief;
(iii) The balance of equities is in his favor; and
(iv) The injunction is in the best interest of the public.
When a class action is brought under a common legal or factual question, what seven pieces of information must be stated in the notice provided to the members?
(i) The nature of the action;
(ii) The definition of the class;
(iii) The class claims, issues, or defenses;
(iv) That a class member may enter an appearance through an attorney if the member so desires;
(v) That the court will exclude from the class any member who requests exclusion;
(vi) The time and manner for requesting exclusion; and
(vii) The binding effect of a class judgment on members.
What is federal question jurisdiction?
Under 28 U.S.C. 1331, the district courts have original jurisdiction over all actions arising under the Constitution, laws, or treaties of the United States.
In assessing whether a case can be filed in federal court, when is diversity determined?
Diversity is determined at the time the case is filed. There is no requirement that diversity exist at the time the cause of action arose. A change in citizenship or amount in controversy after the filing of the case will not affect diversity jurisdiction that was in existence at the time of the filing. In addition, a change in the parties as a result of substitution or intervention will not affect diversity jurisdiction.
What are the three types of personal jurisdiction?
(1) In personam jurisdiction
(2) In rem jurisdiction
(3) Quasi-in-rem jurisdiction
What is the standard used in deciding a motion to dismiss for failure to state a claim upon which relief can be granted?
Under Rule 12(b)(6), a claim for relief can be dismissed if it either
(i) fails to assert a legal theory of recovery that is cognizable at law, or
(ii) fails to allege facts sufficient to support a cognizable claim. In deciding a motion under Rule 12(b)(6), courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff’s favor, and view the pleading in the light most favorable to the plaintiff.
What is a compulsory counterclaim?
A pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if:
(i) The claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim; and
(ii) The claim does not require adding another party over whom the court cannot acquire jurisdiction.
Note: A party who fails to assert a compulsory counterclaim waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court.
What are the three types of jury verdicts?
(1) Special verdict - A written finding made by the jury on each issue of ultimate fact. The court submits written questions to the jury correlating to each ultimate fact of the case and asks the jury to make a finding on each fact.
(2) General verdict - A decision by the jury as to the prevailing party and, if the plaintiff is the prevailing party, the amount of damages.
(3) General with special interrogatories - This couples a general verdict with a special verdict. It is used to ensure that the jury independently considered the material facts of the case in arriving at its verdict.
What is the due process requirement for in personam jurisdiction?
Due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.
If a case starts out as not removable, but later becomes removable, what is the timeframe for removing?
The defendant has 30 days to file a notice of removal once the defendant receives a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is now removable.
When can a defense of lack of subject matter jurisdiction be raised?
The defense of lack of subject matter jurisdiction may be raised at any time, even on appeal. Rule 12(h)(3).
How long does a defendant have to respond to a complaint?
The correct answer is
Under Rule 12, within 21 days of service of process, a defendant must respond to a complaint either by an answer or by a pre-answer motion.
Where is an individual’s domicile and how is the domicile changed?
An individual’s domicile is the state where the individual is present and intends to reside for an indefinite period. This state remains the domicile until the individual:
- Establishes presence in a new place; and
- Manifests intent to remain there for an indefinite period.
When may a plaintiff join as a permissive joinder?
Pursuant to Rule 20(a)(1), a person may join in one action as plaintiff if:
(i) They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(ii) Any question of law or fact common to all plaintiffs will arise in the action.
Note: The same circumstances apply to permissive joinder of defendants under Rule 20.
What are six grounds for a court to grant a motion for a new trial?
(i) Error at trial that renders the judgment unfair;
(ii) Newly discovered evidence that existed at the time of the trial was excusably overlooked and would likely have altered the outcome of the trial;
(iii) Prejudicial misconduct of counsel, a party, the judge, or a juror;
(iv) A verdict that is against the clear weight of the evidence;
(v) A verdict that is based on false evidence; or
(vi) A verdict that is excessive or inadequate.
Note: Rule 59 does not specifically list the grounds that will justify a new trial, but in practice, the overarching theme is that the court may grant a new trial to prevent a miscarriage of justice.
