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Real Property MBE > Civil Procedure > Flashcards

Civil Procedure Flashcards

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1
Q

Jurisdiction and Venue

General Jurisdiction

A

Plaintiff can sue defendant for anything, generally.
* Look for consent (express or implied due to failure to properly object), presence (continuous and systematic contacts with the state or present in the state when served), or domicile.

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2
Q

Jurisdiction and Venue

Domicile (Individual, Corporation, and Partnership)

A
  • Person is domiciled in the state that is her permanent home where she intends to stay indefinitely.
  • Corporation is domiciled in the state where it is incorporated and where its principle place of business is located.
  • Partnership or LLC is domiciled where its partners or members are citizens.
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3
Q

Jurisdiction and Venue

Specific Jurisdiction

A

The lawsuit must arise out of the specific contacts with the state (e.g. a tort committed in the state or a contact or business transaction arising out of contacts with the state).
* It must be both (1) constitutional under the state constitution (e.g. the state’s long-arm statute) and (2) constitutional under the Due Process Clause of the US Const. (there must be minimum contacts with the forum state so as not to offend “traditional notions of fair play and substantial justice).

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4
Q

Subject Matter Jurisdiction

Federal Question Jurisdiction

A
  • It must arise under federal law.
  • The federal issue must be on the face of the well-plead complaint.
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5
Q

Subject Matter Jurisdiction

Diversity Jurisdiction

A

There must be complete diversity at the time the case is filed and the amount in controversy must exceed $75k.

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6
Q

Subject Matter Jurisdiction

Supplemental Jurisdiction

A

State claims may be brought in a federal case if they arise out of a common nucleus of operative fact.
* Further non-diverse parties may sued in a diversity case.

(in a diversity case, a defendant may implede a non-diverse party, but a plaintiff may not sue a non-diverse party if the only basis for the lawsuit jurix is diversity)

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7
Q

Subject Matter Jurisdiction

Removal

A

A defendant may remove a case within 30 days of being on notice that the case is removable (but not over a year in a diversity cases unless plaintiff acted in bad faith). Defendants cannot remove on diversity grounds if any defendant is domiciled in the state in which they are sued.

  • When a defendant removes a case, do not look to traditional venue rules to determine venue. A defendant has only one venue option - it may remove the action to the federal court that geographically embraces the state court where the suit was filed.
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8
Q

Subject Matter Jurisdiction

Remand

A

If a plaintiff wishes to file a motion to remand to state court due to failure to comply with pocedure requirements of the rule, it must do so within 30 days after removal.

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9
Q

Jurisdiction and Venue

Venue

A
  • Venue is proper where any defendant resides if all defendants reside in the same state or where a substantial part of the events or omissions giving rise to the claim occurred.
  • A court may transfer a case to a different venue in certain circumstances.
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10
Q

Jurisdiction and Venue

Transferring of Venue

A
  • transfer to proper venue: Occurs if the case is filed in the wrong venue. The law of transferee court applies.
  • Transfer to more Appropriate Venue: Occurs when there is a more convenient forum for the case. The federal court may transfer it in the interest of justice . The law of transferee court applies.
  • Forum non conveniens: if a case should be litigated in a different forum (e.g. a different country) a court may dismiss the case.
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11
Q

Jurisdiction and Venue

Methods to Serve an Individual
(SAID)

A
  • State Law: follow the state law methods where the federal court is located.
  • Agent: Deliver a copy of the summons and complaint to an agent appointed by the defendant or law.
  • Individual: Deliver a copy of the summons and complaint to the individual personally.
  • Dwelling: leave a copy of the summons and complaint at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.
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12
Q

Jurisdiction and Venue

Serving a Corporation

A

To serve a corporation, a plaintiff may use the state law methods where the district court is located or where the service is made, or it may serve an officer, a managing or general agent authorized, or any agent appointed to receive service.

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13
Q

Jurisdiction and Venue

Waiver of Service

A

A plaintiff may ask a defendant to waive formal service of process by sending the complaint, two copies of a waiver form, and a prepaid means for returning the form via first-class mail or other reliable means.
* If defendant waives formal service, it has 60 days to answer the complaint (rather than 21 days).
* If defendant does not, it must pay for formal service of process.

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14
Q

Pretrial Procedures

Complaint

A
  • A complaint must be served within 90 days after it is filed.
  • A response (answer or motion) must be served within 21 days (60 days if formal process was waived) after the complaint is served.
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15
Q

Pretrial Procedures

Pleading

A
  • a Pleading may be amended as of right within 21 days after service (or if the pleading reqires a responsive pleading, 21 days after service of the responsive pleading or motion).
  • After 2 days, a party may amend its pleading with consent of the other party or the court.
  • The court will freely give leave when justice so requires.
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16
Q

Pretrial Procedures

Joinder of New Claims

A
  • Once a party has one properly filed claim, it can bring all claims if the court has jurisdicition.
  • This applies to plaintiff’s claims as well as defendnat’s counterclaims (e.g. suing plaintiffs) or cossclaims.
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17
Q

Pretrial Procedures

Counterclaims

A
  • Federal Law recognizes compulsory counterclaims where defendant must bring a counterclaim if it arises out of the same transaction or occurence or defendant loses the right to bring the claim later.
  • A Permissive Counterclaim (i.e. one arising out of the same transaction or occurence) may be filed but does not have to be filed.
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18
Q

Pretrial Procedures

Crossclaims

A

A cross claim is asserted by one party against a coparty.
* It must arise out of the same transaction or occurence as the initial claim.
* A crossclaim is not compulsory.

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19
Q

Joinder of Parties

Plaintiff Joining Plaintiffs

A

Plaintiffs may sue together if (1) they assert a right to relief jointly, severally, or in the alternative with respect to claims (2) arising out of the same transaction or occurence and (3) involving a common question of law or fact.

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20
Q

Joinder of Parties

Defendant adds Defendant

A

A defendant may implead a new claim against a new party if that party may be liable to defendant for part or all of the recovery.
* This must be filed within 14 days of serving the answer,otherwise leave of court is required.

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21
Q

Joinder of Parties

Intervention

A

A movant may intervene as a matter of right if:
1. It has an interest related to the property or transaction that is the subject of the action,
2. Disposition without the movant may impair or impede the movant’s ability to protect its interest, and
3. Its interest is not adequately represented by the existing party.

The court may grant permissive intervention if the party has a claim or defense that shares a common question of law or fact with the main action.

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22
Q

Joinder of Parties

Interpleader

A
  • This occurs when the holder of a property subject to conflicting claims (usually an insurance company that holds a common fund) may file a lawsuit as a plaintiff and join all claimants to avoid the possibility of double liability.
  • Under statutory interpleader, $500 is enough and minimal diversity is enough (if there is any diversity between tow claimants) to get into federal court.
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23
Q

Pretrial Procedures

Class Actions

A

Requirements include: Commonality, adequacy, numerosity, typicality and (with comon question suits) plaintiffs needs to show superiority snd that common questions predominate.

24
Q

Pretrial Procedures

The Class Action Fairness Act

A

Allows a federal court to have jurisdiction over a class action if there are 100 or more plaintiffs seeking over $5m and they have minimal diversity.

25
Q

Pretrial Procedures

Discovery

A
  • Parties may discover anything that is relevant and not privileged.
  • Parties can use interrogatories, depositions, and requests to admit. (deposistions and subpoenas are the only way to get production fron non-parties)
26
Q

Pretrial Procedures

Work Product

A

(prepared in anticipation of litigation) is not discoverable unless there is substantial need and undue hardship.

27
Q

Pretrial Procedures

26(f) Conference

A
  • 26(f) Conference: In federal court, the 26(f) conference is where initial disclosure of damages calculation, insurance agreements, the identitiy of supporting witnesses, and supporting documents are made and a discovery plan is outlined.
  • (Tip: unfavorable witnesses or documents do not need to be disclosed)
28
Q

Pretrial Procedures

16(b) Conference

A

After the 26(f) conference, the 16(b) conference is held.
The court enters a Scheduling Order and deadlines for motions.

29
Q

Pretrial Procedures

Pretrial Disclosures

A

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

30
Q

Pretrial Procedures

Rule 11 Sanctions

A

Are made if improper paper is presented to the court.
* However, if a motion is made by a prty to impose rule 11 sanctions, that party must give the other party 21 days to withdraw the offending paper prior to filing the motion with the court.

31
Q

Law Applied by Federal Courts

State Law in Federal Court

A

If a case is in federal court under diversity or supplemental jurisdiction, federal law generally applies to procedural issues.

Tip: this includes the Federal Rules of
Evidence or Civ. Pro, when to bring an
action, and the right to a jury trial

Generally, state law applies to substantive issues.

Tip: this includes when a party has the
burden of proof, which statutte of
limitations applies, caps on damages,
elements of cliams, and choice of law rules.

32
Q

Law Applied by Federal Courts

Federal Common Law

A

Fed. common law applies where:
1. congress has given the courts the power to develop law (bankruptcy law, admirality, and civil rights) or
2. where a federal rule is necessary and and state law would frustrate federal objectives. (this latter category is very narrow and usually comes up when a case would directly affect the US government.)

33
Q

Law Applied by Federal Courts

The Klaxon Doctrine
(MBE favorite)

A

A federal court sitting in diversity must apply the choice of law approach prevailing in the state where it sits.

34
Q

Jury Trials

Jury Trial - Seventh Amendment

A

A jury pool must be taken from a cross section of the community (Tip: the jury itself does not have to be diverse.)

35
Q

Jury Trials

Jury Trial Request

A
  • For an issue triable by jury, a party may demand a jury by trial by serving the other parties a written demand (which can be in a pleading) “no later than 14 days after the last pleading directed to the issues is served.”
  • A proper demand may be withdrawn with all parties’ consent.
36
Q

Jury Trials

Number of Jurors

A
  • A jury must begin with 6 and no more than 12 members.
  • Unless the parties agree otherwise, the verdict must be unanimous abd returned by a jury of at least six (6).
37
Q

Jury Trials

At the close of evidence

A

At the close of evidence, a party may file and furnish to every other party written requests for the jury instructions.

38
Q

Jury Trials

Objecting to Jury Instructions

A

A party who objects to the instructions must do so in a (1) timely manner, (2) on the record, (3) stating the matter objected to and the (4) grounds for the objection.

39
Q

Jury Trials

Plain Error
(jury instructions)

A

An appellate court may consider plain error in the jury instructions, even if it has not been properly preserved or objected to, if the error affects substantial rights.

40
Q

Motions Made During and After Trial

Directed Verdict (Judgement as a Matter of Law)

A
  • Standard: if there is no substantial evidence to support a verdict for the nonmoving party, a directed verdict will be given. The court looks at whether the plaintiff has met its burden of production.
  • Timing: Defendant may file its motion after plaintiff rests its case, or either party may file it after defendant rests its case.
41
Q

Motions Made During and After Trial

Renewed JMOL

A

Standard: Under federal law, the party must have already made a motion for JMOL at somepoint. Here, the party is renewing it and must show the evidence is insufficient as a matter of law to support the jury’s verdict.

Timing: Within 28 days of entry of the jury’s verdict.

42
Q

Motions Made During and After Trial

New Trial

A

Standard: A new trial is granted if there were erros in the trial that tainted the jury’s decision-making or if the jury’s decision was against the great weight of the evidence.
* It may also be granted if the verdict is excessive (i.e. remittitur) or inadequate (i.e. additur, which is not recognized by federal courts).

Timing: Within 28 days of the entry of the jury’s verdict. The court may even order a new trial on its own.

43
Q

Motions Made During and After Trial

Relief from Judgement

A

Standard: If there are circumstances like mistake, fraud, or new evidence that could not have been discovered, the court may grant relief from judgement.

Timing: Generally, within one year of the judgement (but there are exceptions, e.g. fraud).

44
Q

Motions Made During and After Trial

Appeal

A

Standard: Final judgements are generally appealable (exceptions: preliminary injunctions, interlocutory orders, and collateral matters).
* Orders granting a directed verdict or denying a new trial are appealable.

Timing: Generally within 30 days after entry of judgement.

45
Q

Motions Made During and After Trial

Bring in Pre-Answer Motions

A
  • More definite statement
  • Motion to Strike
46
Q

Motions Made During and After Trial

Bring in first Answer or Motion

A
  • Lack of Personal jurisdiction
  • Insufficient process/service
  • Venue
  • Affirmative Defenses
47
Q

Motions Made During and After Trial

Anytime through trial the following motions may be brought:

A
  • Failure to join a necessary party
  • Judgement on the pleadings
  • Failure to state a claim or defense
48
Q

Motions Made During and After Trial

Bring any time at all, even on appeal:

A

Lack of Subject Matter Jurisdiction

49
Q

Dispositive Motions

Motion for Summary Judgement

A
  • The question is whether there is a genuine issue of material fact?
  • The burden the shifts to the nonmoving party, which must show there is a genuine issue of material fact.
  • The motion is looked at in the light most favorable to the nonmoving party. (The court will deny the motion if case involves something subjective such a motive, intent, or credibility.)
50
Q

Dispositive Motions

Failure to State a Claim on which Relief can be Granted

A

A defendant may bring this motion, which essentially states, even if everything the plaintiff says in its complaint is true, there is no recognized violation of any legal rights.

51
Q

Verdicts and Judgements

Default

A

A default is enetered by a clerk if there is no timely answer.
(Tip: the default itself does not give plaintiff any rights to collect money. Plaintiff must seek a default judgement)

52
Q

Verdicts and Judgements

Default Judgement

A

Are made by a clerk for a “sum certain” (and can be without notice) or by a Judge (which requires seven days notice if defendant has appeared).

(“with prejudice” lawsuit cannot be refiled)

53
Q

Verdicts and Judgements

Involuntary Dismissals

A

(e.g. for failing to comply with court orders) these are usually with prejudice.

54
Q

Verdicts and Judgements

No Progress Dismissals

A

These are usually with prejudice

55
Q

Verdicts and Judgements

Exception - two dismissal rule

A

If a plaintiff voluntarily dismisses a case twice, the second dismissal is with prejudice and plaintiff cannot refile the lawsuit or one that arises out of the same facts.

56
Q

Res judica

Res Judica (4)

A

Same Claim Use the transaction or occurence test: if it was part of the same transaction or occurence, it is the same claim.
Same Parties the parties must be thge same or in privity.
Final judgement This means it is modifiable (e.g. child support, alimony, etc.)
On the Merits This includes a full trial, dismissal w/ prejudice, claims decided on summary judgment or JMOL, or default or consent judgements.

57
Q

Collateral Estoppel

Collateral Estoppel

A

Same Issue The issues must be exactly the same.
Actually Litigated the issues need to be actually raised and litigated.
Actually Decided the issies need to be actually decided at trial.
“Necessary” The decision must be necessary to the court’s judgement.

Real Property MBE (4 decks)

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