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Civil Procedure Flashcards

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1
Q

Personal Jurisdiction - Two Requirements

A

Statutory and Constitutional

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2
Q

Personal Jurisdiction - Waiver

A

Can be waived

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3
Q

Personal Jurisdiction - Statutory Requirements

A

Presence (served), domiciled, consent, or long-arm statute

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4
Q

Personal Jurisdiction - Constitutional Requirements

A

Minimum contacts, notions of fair play/substantial justice

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5
Q

Personal Jurisdiction - Constitutional Requirements - Specific Jurisdiction

A

Contacts, relatedness, and fairness

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6
Q

Personal Jurisdiction - Constitutional Requirements - General Jurisdiction

A

Contacts + D is at home, registered for business, or served
Businesses: incorporated/principal place of business

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7
Q

Personal Jurisdiction - Constitutional Requirements - Contacts

A

Minimum contacts
Purposeful availment: voluntary act/targeting/causing effect
Foreseeability: Foreseeable that D could be sued

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8
Q

Personal Jurisdiction - Constitutional Requirements - Relatedness

A

Claim arises from/relates to D’s contact w/ forum

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9
Q

Personal Jurisdiction - Constitutional Requirements - Fairness

A

Burden on D, state interest, P interest

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10
Q

Notice Requirement

A

D entitled to notice of suit (reasonably calculated to apprise party of action)

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11
Q

Notice Requirement - Elements & Timing

A

Summons + copy of complaint within 90 days of complaint filed

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12
Q

Notice Requirement - Ways of Service

A

Process server: 18+ years old, not party to action
Ways of Service: personal, substitute, agent, or state methods
Substituted service: at D’s abode to person of age who resides there
Business: Officer/agent or state method

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13
Q

Notice Requirement - Waiver of Service

A

P mails, D execute within 30 days, effective when P files in court
If D doesn’t waive w/o good cause > pays cost of service

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14
Q

Subject Matter Jurisdiction - Waiver

A

Cannot be waived

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15
Q

Subject Matter Jurisdiction - States Cant Hear

A

Patents, bankruptcy, securities, antitrust

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16
Q

Subject Matter Jurisdiction - Two Types

A

Diversity Jurisdiction: citizenship or alienage + > $75,000
Federal question: Under federal law

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17
Q

Subject Matter Jurisdiction - Diversity - Persons

A

All Ps be different than all Ds when case is filed
Citizenship: domicile (presence + intent as home)
Corporations: All incorporated + principal place of business
Partnership: citizenship of all members
Class actions: Citizenship of named representatives
No diversity for: divorce, alimony, custody, probate

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18
Q

Subject Matter Jurisdiction - Diversity - Amount

A

Amount in controversy > single P can aggregate against single D
Total value of joint claims, number of parties irrelevant

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19
Q

Subject Matter Jurisdiction - Federal Question

A

Well-pleaded complaint: P’s claim must “arise under” federal law

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20
Q

Subject Matter Jurisdiction - Removal

A

D can remove to fed court if could have been filed in fed court

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21
Q

Subject Matter Jurisdiction - Removal - Timing & Location

A

D files notice w/ grounds within 30 days of service/removal possibility
All Ds must join in the removal; Ps may not remove
D can remove to fed court embracing state for diversity or fed question

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22
Q

Subject Matter Jurisdiction - Removal - Diversity Exception

A

If based on diversity: no removal if any D is a citizen or 1 yr+ since filing

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23
Q

Subject Matter Jurisdiction - Removal - Improper Removal

A

Remand to state court
If lack of SMJ > move any time
If other reasons > move within 30 days of notice of removal

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24
Q

Subject Matter Jurisdiction - Supplemental Jurisdiction

A

Gets claims into federal case
Common Nucleus Test: Common operative facts; Same transaction/occurrence

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25
Q

Subject Matter Jurisdiction - Supplemental Jurisdiction - Limitation for Diversity Cases

A

Claims by P generally cannot invoke supplemental jurisdiction UNLESS multiple Ps & one claim isn’t over $75k

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26
Q

Erie Doctrine

A

Federal law applies, then, if issue is substantive, state law
Always substantive: conflict rules, elements of claim/defense, statute of limitation, rules for tolling SoL, standard for new trial bc excessive damages
Judge looks at outcome determinative, balance of interests, forum shopping

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27
Q

Venue

A

Venue tells us where to initially file in fed court (which federal court)

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28
Q

Venue - Location

A

Where all Ds reside or substantial part of claim arose
Removed cases: fed district embracing state court where action filed
Transactional cases: manufacture, injure, contract entered/performed
D resides (business) > where subject to PJ

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29
Q

Venue - Transfer

A

One trial court to another in same system
Transferor: OG court; Transferee: New court
Transferee must be proper venue with PJ over D

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30
Q

Venue - Transfer from Proper Venue

A

Convenience or interest of justice
Diversity > transferee applies law of transferor

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31
Q

Venue - Transfer from Proper Venue - Forum Selection Clause

A

Federal law enforces FSCs if they’re not unreasonable
Only public interest factors are considered
Transfer to enforce FSC > transferee’s choice of law rules

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32
Q

Venue - Transfer from Improper Venue

A

Transfer for justice or dismiss
Transferee applies its own choice of law rules

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33
Q

Venue - Forum Non Conveniens

A

Hold case so P can sue in other court
When there is another court that is the center of gravity for the case, but court cant transfer bc it’s a different judicial system
Other court must be available and adequate

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34
Q

Pleadings - Must Contain

A

Grounds for SMJ, statement of claim, demand for relief
Must plead sufficient facts to support a plausible claim
Particularity or specificity for fraud/mistake

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35
Q

Pleadings - D’s Response

A

D must respond by motion or answer within 21 days (or 60 if service waived)

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36
Q

Pleadings - D’s Response - Defenses Waived

A

Defenses waived if not in first response: PJ, venue, process, service

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37
Q

Pleadings - D’s Response - Defenses Raised Later

A

Defenses which can be raised later:
before trial: failure to state claim, failure to join indispensable party;
any time: lack of SMJ

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38
Q

Pleadings - D’s Response - Denial of Motion

A

D must serve answer within 14 days

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39
Q

Pleadings - D’s Answer

A

Must respond to allegations + raise affirmative defenses

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40
Q

Pleadings - Amended Pleadings - P

A

P can amend once within 21 days of D’s response

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41
Q

Pleadings - Amended Pleadings - D

A

D can amend once within 21 days of serving answer
Can include waivable defenses or affirmative defenses

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42
Q

Pleadings - Amended Pleadings - After Time Limit

A

Party can seek leave of court to amend

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43
Q

Pleadings - Amended Pleadings - Relation Back

A

Amended pleading “relates back” if about same conduct, transaction, occurrence > avoids statute of limitation problem
Changing D: relates back if same conduct, transaction, occurrence, D had case knowledge, AND D knew they should have been named

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44
Q

Rule 11 - Application

A

Applies to all papers except discovery

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45
Q

Rule 11 - Effect

A

Atty signs > best knowledge after reasonable inquiry that: Paper is not improper, legal contentions are warranted/nonfrivolous, contentions have evidentiary support

46
Q

Rule 11 - Sanctions

A

Sanctions: deter repeat of conduct (against party, lawyer, or firm)
Must first have opportunity to be heard
Party must serve motion to party before court (safe harbor of 21 days to fix)

47
Q

Joinder

A

P can join any additional claim they have against adverse party, but must have SMJ

48
Q

Claim Joinder - Multiple Ps or Ds

A

Same transaction or occurrence + one common question of fact or law

49
Q

Claim Joinder - Plaintiff - Absentees

A

Absentee necessary if: court cant accord complete relief, absentee’s interest will be harmed, or absentee has interest which gives party to multiple obligations
Joint tortfeasors are never necessary
Joinder feasible if: PJ over absentee + federal SMJ over claim
If absentee can’t be joined: can it proceed? Alternative forum? Likelihood of harm? Can court shape relief to avoid harm?

50
Q

Claim Joinder - Defendant

A

Compulsory counter claim > arises from same T/O > raised or waived
Permissive counter claims > not same T/O > not required to raise
MUST HAVE SMJ over counterclaim

51
Q

Claim Joinder - Cross Claims

A

Claim against co-party, same T/O, not required to raise

52
Q

Impleader

A

Third party claim (D bringing in new party) in 14 days of answer
Shifts liability D owes P (indemnity or contribution)
Claims are permissive, not required
D files third party complaint, have complaint formally served
PJ over impleaded party if served within 100 miles from court

53
Q

Intervention

A

Absentee brings themselves into the case
Intervention of right if interest harmed (not repped by current parties)
Permissive intervention if common q of law or fact

54
Q

Class Action - Requirements

A

Numerosity (too many people for joinder)
Common issue to all class members
Class rep’s claim is typical of claims
Rep will adequately/fairly rep class

55
Q

Class Action - Types of Cases

A

Prejudice, injunctive/declaratory relief, or common question/damages

56
Q

Class Action - Court Actions

A

Certify class, define class issues/defenses, appoint counsel
Must also send individual notice to class for common Q/damages
No right to opt out of a class action unless for common Q/damages

57
Q

Class Action - Diversity of Citizenship Requirements

A

Only citizenship of rep, rep’s claim must exceed $75k

58
Q

Class Action - Class Action Fairness Act

A

SMJ if 100+ members, any P diverse from any D, claims aggregated exceed 5 million

59
Q

Discovery - Initial Disclosures

A

Party must give w/o being asked within 14 days of conference
Identify of people with discoverable info you may use as support
Documents and things that may be used for support
Computation of Relief & supporting documentation
Insurance coverage
Failure to disclose > can’t use unless justified or harmless

60
Q

Discovery - Later Disclosures - Experts

A

Expert witnesses who may provide testimony at trial
Opinions, basis, facts used, qualifications, and EW’s payment
Party may take deposition of EW
Failure to disclose > can’t use unless justified or harmless

61
Q

Discovery - Pre-Trial

A

No later than 30 days prior to trial
Identity of witnesses who will testify or have a deposition

62
Q

Discovery - Discovery Requests can be made after

A

Rule 26 Conference

63
Q

Discovery - Deposition

A

Live testimony under oath, always oral & recorded
Party need not be subpoenaed, non-parties served with subpoena
Not allowed: more than 10 depositions, same person twice, or over 7 hrs
Can be to impeach, any purpose if adverse party or deponent unavailable

64
Q

Discovery - Interrogatories

A

Written qs answered under oath
Only ever sent to parties, maximum number of 25, answered in 30 days
Responding party can give requesting access to records instead

65
Q

Discovery - Request to Produce

A

Asks a party to make available for review documents or things
Can also permit entry on property to inspect
Party must respond in writing in 30 days

66
Q

Discovery - Medical Exam

A

Court order required
Party must show: health in controversy and good cause
Person undergoing can get copy of report

67
Q

Discovery - Request for Admission

A

Request that someone admit certain matters
Must respond in 30 days or deemed admitted

68
Q

Discovery - Scope

A

Anything relevant to a claim/defense + proportional to the needs of the case

69
Q

Discovery - Privilege - Work Product

A

Work Product – Prepared in anticipation of litigation
May be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way
“Opinion work product” CANNOT be discovered

70
Q

Discovery - Privilege - Inadvertent Disclosure

A

Notify promptly, party must return/destroy

71
Q

Discovery - Court Enforcement - Protective Order

A

If annoyance, embarrassment, undue burden
Party must certify that she tried in good faith to resolve w/o court

72
Q

Discovery - Court Enforcement - Partial Response

A

May be compelled
Party moves for order compelling, if violated > merit sanctions
Court may: establish facts as true, strikes pleadings, disallows evidence, dismiss case, enter default judgement

73
Q

Discovery - Court Enforcement - No Response

A

Sanctions + costs

74
Q

Temporary Restraining Order - Defined

A

Status quo until hearing on prelim injunction

75
Q

Temporary Restraining Order - Requirements

A

Can be issued without notice to other party if: Applicant files (under oath) that will suffer irreparable harm if wait + lawyer certifies efforts to give oral or written notice + Must post bond to cover costs if restraint is wrongful

Must state terms + detail what D must do + why
Effective for no more than 14 days (can extend for another 14)

76
Q

Preliminary Injunction - Defined

A

Status quo until trial

77
Q

Preliminary Injunction - Defined

A

Burden on applicant to show: likely to suffer irreparable harm, likely to win on merits, balance of hardship in her favor, injunction in public interest
Must state terms + detail what D must do + why
Court must make findings of fact + conclusions of law
Can be appealed as of right

78
Q

Voluntary Dismissal - Without Permission

A

P can withdraw before D’s answer or motion

79
Q

Voluntary Dismissal - With Permission

A

P must make motion to court
First voluntary dismissal is without prejudice (only once)

80
Q

Default Judgement - When

A

If D doesn’t respond in 21 days of service

81
Q

Default Judgement - Default

A

Novation by clerk on docket sheet, cuts off D’s right to respond

82
Q

Default Judgement - Made by

A

Made by clerk if D made no response, claim is for certain sum, P gives affidavit of sum owed, and D not minor/incompetent
Otherwise, hearing by judge and D gets notice

83
Q

Default Judgement - Motion to Set Aside Default

A

Good cause + viable defense

84
Q

Motion to Dismiss

A

Made before D has answered
Failure to State a Claim > if facts true, do they state plausible claim
If after D’s answer: motion for judgement on pleadings

85
Q

Motion for Summary Judgement

A

No dispute on material fact so entitled to judgement as matter of law
Can move no later than 30 days post discovery
Views evidence in light most favorable to non moving party

86
Q

Trial - Rule 26(f) Conference

A

21 days before scheduling order, meet and confer
Present to court a discovery plan within 14 days after conference

87
Q

Trial - Pretrial Conference

A

Issues to be tried and evidence to be proffered

88
Q

Trial - Jury Trial - For

A

Civil actions at law, not equity (injunctions)

89
Q

Trial - Jury Trial - Demand

A

Jury demand must be in writing within 14 days after service of pleading

90
Q

Trial - Jury Trial - Juror Selection

A

For Cause – unlimited number
Peremptory – three; must be race/gender neutral

91
Q

Trial - Jury Trial - Number of Jurors

A

Minimum of 6, max of 12

92
Q

Trial - Jury Trial - Jury Instructions

A

Court informs the parties of (1) what instructions it will give and (2) what proposed jury instructions it rejected
Party must be allowed to object on the record

93
Q

Trial - Jury Trial - Verdicts

A

General > who wins + relief
Special verdict > specific written facts, not who wins
Can be impeached if jurors were bribed, etc.

94
Q

Trial - Jury Trial - Entry of Judgement

A

If general verdict > clerk issues
If special verdict > judge approves if answers consistent

95
Q

Trial - Jury Trial - Judgement as a Matter of Law

A

Reasonable people could not disagree on the result.
Can move before case submitted to jury, after opposing party heard
Judge grants & enters judgement instead of jury trial

96
Q

Trial - Jury Trial - Renewed Judgement as a Matter of Law

A

Comes up after trial, entered for party that lost jury verdict
Evidence viewed in light most favorable to non-moving party
Made within 28 days of entry of judgement
Must have moved for JMOL during trial on same grounds

97
Q

Trial - Jury Trial - Motion for New Trial

A

Can be granted on any (non-harmless) error that requires a do-over.
Motion within 28 days of judgement
Reasons: error in jury instructions, new evidence, misconduct, judgment against weight of evidence, inadequate/excessive damages

98
Q

Trial - Jury Trial - Remittitur

A

Hardball w/ P: remit part of the damages award or go through a new trial

99
Q

Trial - Jury Trial - Additur

A

Hardball w/ D: add damages or new trial; not allowed in fed court

100
Q

Trial - Jury Trial - Motion for Relief from Judgement

A

Clerical error: any time
Mistake/neglect: reasonable time, <1 year
Fraud/misrep/misconduct: reasonable time, <1 year
New evidence: reasonable time, <1 year
Judgement void, like lack of SMJL: reasonable time, no maximum

101
Q

Appellate Review - What is Reviewable

A

Party has a right to appeal if there is a final judgement (nothing left on merits)
Not final: denial of summary judgment, new trial granted

102
Q

Appellate Review - Timing

A

Notice of appeal within 30 days after judgement which is appealed

103
Q

Appellate Review - Interlocutory appeals - Injunctions

A

Granting, modifying, or refusing injunctions are reviewable as of right

104
Q

Appellate Review - Interlocutory appeals - Interlocutory Appeals Act

A

Interlocutory Appeals Act: judge certifies it is controlling issue w/ substantial grounds for difference of opinion & appeals court agrees to hear

105
Q

Appellate Review - Interlocutory appeals - Collateral Order

A

Collateral Order: Issue is distinct from merits, involves important legal questions, and essentially unreviewable if parties await judgement

106
Q

Appellate Review - Interlocutory appeals - Class Actions

A

Class actions: Order granting or denying cert of class w/in 14 days

107
Q

Appellate Review - Standard of Review - Question of Law

A

De novo (no deference given to trial judge)
Discretionary matters: affirm unless abused discretion

108
Q

Appellate Review - Standard of Review - Question of Fact

A

Standard of “clearly erroneous”; deference to trial judge
Jury trial: affirm unless reasonable people couldn’t make that finding

109
Q

Claim Preclusion: Res Judicata

A

Same claimant against same defendant
Case 1 ended with valid final judgement on merits (not on merits: jurisdiction, improper venue, indispensable party)
Case 1 and Case 2 assert same claim (T/O)

If claimant won earlier: merged; if D won earlier: barred

110
Q

Issue Preclusion: Collateral Estoppel

A

Same issue actually litigated and determined in case 1 as case 2
Case 1 ended with valid final judgement on merits
Issue was essential to judgement in case 1
Can only be used against someone who was party to Case 1 or in privity (in privity: represented in that action)
Can be used by a party to case 1 or someone in privity

111
Q

Nonmutual Issue Preclusion - Defensive

A

Someone who is not a party in case 1 tries to use issue preclusion in 2
Person is the D in case 2
Only allowed if the party you attempt to use it against had a full chance to litigate in the first case.

112
Q

Nonmutual Issue Preclusion - Offensive

A

Someone who is not a party in case 1 tries to use issue preclusion in 2
Person is the P in case 2
Most states say no, but there is a trend towards yes.
Allowed if it is “fair,” using fairness factors: party to be bound had a full and fair opportunity to litigate, strong incentive to litigate first case, whether party could have joined case 1, and there have been no inconsistent findings on the issue.

Bar Exam (8 decks)

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