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civil procedure Flashcards

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1
Q

standard for a motion for judgment as a matter of law

A

*view the evidence in the light most favorable to the non-moving party
*the evidence is unable to support a verdict for the non-moving party

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2
Q

when may a party move for judgment as a matter of law?

A

*end of plaintiff’s case presentation by the defendant
*at the close of evidence by either party

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3
Q

requirements for a renewed motion for judgment as a matter of law

A

*same standard as JMOL
*a motion for JMOL must have been made by the moving party at the close of all evidence

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4
Q

required disclosures in discovery

A

*initial disclosures: the names and addresses of those with potentially discoverable information, copies or descriptions of relevant documents and things, computation of the damages claimed, and any applicable insurance agreements
*expert disclosures: names, information forming the basis of their opinion, other cases where they have testified, compensation
*pre-trial disclosures: list of witnesses and exhibits

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5
Q

jurisdictional requirements for statutory interpleader

A

*SMJ: minimum diversity and an AIC of $500 or more
*PJ: nationwide service
*venue: anywhere a claimant is domiciled
*deposit: must post a bond or deposit property with court

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6
Q

types of pleadings

A

*complaint
*answer
*reply

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7
Q

required contents of a complaint

A

*short and plain statement establishing SMJ
*short and plain statement establishing entitlement to relief
*demand for relief

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8
Q

required content of an answer

A

*responses: admissions and denials
*motions not waived
*affirmative defenses
*compulsory counterclaims

*may also include permissive counterclaims or crossclaims

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9
Q

potential motions in lieu of answer

A

*motion to dismiss
*motion for judgment on the pleadings
*motion for a more definite statement
*motion to strike (a defense or material statement if insufficient, redundant, immaterial, impertinent, or scandalous)

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10
Q

where is venue generally proper?

A

*where any defendant is domiciled (or a corporation is subject to PJ), as long as all defendants reside in the same state
*where a substantial portion of the events giving rise to the suit occurred
*where a substantial part of the property giving rise to the suit is located
*if neither of these apply, where a defendant is subject to PJ

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11
Q

when may venue be transferred?

A

*if originally proper, for convenience and in the interest of justice (but the first state’s law controls) to anywhere where venue was originally proper or in which all parties consent
*if originally improper, may dismiss or transfer (and the second state’s law controls)

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12
Q

choice of law in diversity cases

A

*state substantive law and federal procedural law applies
*state law applies if the thing is outcome determinative and a federal rule (FRCP) doesn’t touch on the matter

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13
Q

ways to terminate a case pre-trial

A

*voluntary dismissal of any claim: without prejudice unless previously dismissed twice without court order based on same claim
*involuntary dismissal with prejudice
*motion for summary judgment
*default judgment

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14
Q

when involuntary dismissal is not with prejudice

A

dismissal for
*lack of jurisdiction
*improper venue
*failure to join a necessary party

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15
Q

standard for motion for summary judgment

A

*view the evidence in the light most favorable to the non-moving party
*all doubts resolved in the non-moving party’s favor
*no genuine dispute as to a material fact exists
*the evidence is legally insufficient for a reasonable jury to find in the non-moving party’s favor

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16
Q

types of appeals that may be filed before a final judgment

A

*injunction or other order impacting the possession of property
*orders certifying (or not) class actions
*collateral-order doctrine: an order immediately and conclusively resolves an important issue that is separate from the merits of the claim and cannot be effectively reviewed on appeal from final judgment (e.g., forum non conveniens, denial of 11A immunity)
*district court certification of a final judgment for immediate appeal of one of many claims when there is no just reason for delay (claims must be separate and distinct)

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17
Q

reasons a motion for new trial can be granted

A

*legal errors
*newly discovered evidence
*prejudicial misconduct
*anytime the judge concludes the verdict (substance and damages) is against the great weight of the evidence

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18
Q

can a judge amend the damages awarded by jury verdict?

A

*remittitur: can decrease damages deemed seriously excessive (or grant new trial)
*additur: can’t increase damages deemed insufficient

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19
Q

types of joinder

A

*permissive: same nucleus of operative facts + common question of law or fact
*compulsory: a defendant seeks to compel the plaintiff to join a necessary party (someone’s interests prejudiced if not joined) and joinder is feasible (SMJ preserved and have PJ)

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20
Q

what happens if joinder of a necessary party is not feasible?

A

*dismissal of the case if the party is indispensable
*proceed with current parties

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21
Q

types of intervention

A

*as of right: interest in the matter + that interest may as a practical matter be compromised
*permissive: common question of law or fact

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22
Q

types of multi-party litigation

A

*joinder: other plaintiffs and defendants
*intervention: third-parties
*interpleader: claimants to property
*impleader: third-party defendants

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23
Q

types of multi-claim litigation

A

*permissive counterclaims
*compulsory counterclaims
*cross-claims

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24
Q

four prerequisites for class action lawsuits

A

*numerosity: joinder of all impracticable
*commonality: common questions of law or fact
*typicality: named parties’ claims are typical of the class
*adequacy: named parties will protect the class’s interests

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25
Q

what is the scope of discovery?

A

may seek discovery of anything relevant (as long as not privileged) but discovery must be proportional to the needs of the case

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26
Q

six common devices for discovery

A

*oral deposition
*written deposition
*interrogatories
*requests for admission
*discovery and inspection of documents and land
*physical and mental examination

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27
Q

requirements for the doctrine of relation back

A

*same conduct as the original pleading
*the correct parties were on notice

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28
Q

requirements for certification of a pleading

A

signed by the attorney of record with their contact information

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29
Q

assurances created by certifying a pleading

A

after a reasonable inquiry, the attorney certifies to the best of their knowledge that
*the factual allegations have or will have evidentiary support by the end of discovery
*the pleading is not for an improper purpose
*the legal contentions are warranted by law or a change in the law

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30
Q

potential issues raised on a motion to dismiss

A

*lack of SMJ
*lack of PJ
*improper service
*improper venue
*failure to state a claim upon which relief can be granted
*failure to join a necessary party
*forum non conveniens

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31
Q

types of pleading amendments

A

*as of right: once within 21 days of service
*by leave of court: granted freely by court when justice so requires and is therefore generally allowed unless futile (immediately subjected to dismissal or would cause undue prejudice)

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32
Q

elements of claim preclusion

A

*final judgment on the merits
*the second suit is between the same parties or successors in interests on both sides
*the second suit involves the same claim or cause of action (or a legal theory arising from the same occurrence)

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33
Q

elements of issue preclusion

A

*same issue of fact in both suits
*the issue was actually and necessarily decided in the first suit, with a valid and binding judgment
*the party to be precluded was a party in the first suit

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34
Q

requirements for removal

A

*a motion for removal is filed within 30 days of service of the complaint (or amended complaint)
*all defendants consent
*the court had SMJ with the original filing
*for diversity cases, no defendant is a citizen of the state where the case was originally filed

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35
Q

what is the timing for responding to a request to waive?

A

30 days from when the request was made

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36
Q

incentive for a defendant to waive service

A

the time to answer extends from 21 days after service to 60 days

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37
Q

ways to acquire general PJ

A

*physical presence in state (unless for judicial process or by fraud or force)
*consent
*domiciled in state
*corporation “at home” in the state

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38
Q

required elements for service

A

*pleading
*summons

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39
Q

three exceptions to service/PJ requirements

A

*Federal Interpleader Act: for statutory interpleader, nationwide service established PJ
*Bulge provision: for impleader or compulsory joinder, service to the new party within 100 miles of the federal courthouse hearing the case establishes PJ
*if P asserts a federal claim and D isn’t subject to PJ in any state, PJ in any state if D has minimum contacts with the U.S.

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40
Q

types of PJ

A

*in personam
*in rem
*quasi in rem

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40
Q

due process requirement for PJ

A

*sufficient contacts (purposeful and substantial) to be consistent with notions of fair play and substantial justice
*basically, minimum contacts

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41
Q

ways to establish in personam PJ

A

*service
*consent
*general: any claim against D
*specific: only claims arising out of the same nucleus of operative facts as the contacts with the forum

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42
Q

what is the test for exercising supplemental jurisdiction?

A

does the additional claim arise from the same nucleus of operative facts?

43
Q

two ways to circumvent the amount in controversy requirement

A

*aggregation
*supplemental jurisdiction

43
Q

applicability of supplemental jurisdiction in diversity cases

A

*complete diversity cannot be destroyed
*a defendant may bring a claim under supplemental jurisdiction but plaintiffs are severely limited (basically against original defendants only)

44
Q

how is citizenship defined for diversity purposes?

A

*where domiciled
*for an individual, where reside and intend to remain indefinitely
*for a corporation, where incorporated or where have PPB (headquarters)

44
Q

two exceptions to diversity jurisdiction

A

federal courts cannot hear probate (authentication of will or administration of estates) or domestic relations (divorce, alimony, child custody) cases

44
Q

types of federal subject matter jurisdiction

A

*federal question: well-pleaded complaint based on federal law
*diversity: AIC over $75k and the plaintiff is a citizen of a different state from the defendant (or a citizen of a foreign country)

45
Q

types of abstention (4)

A

*Pullman abstention: unsettled state law
*Younger abstention: pending state cases + important state interest + opportunity to litigate federal issues
*Burford abstention: complex regulatory scheme + interfering injunctive relief
*Colorado River abstention: substantially similar to state case

46
Q

when is aggregation of claims allowed?

A

*one plaintiff against a single defendant
*one plaintiff against multiple defendants as long as the claims are not separate and distinct and the defendants are jointly liable with respect to the claims

47
Q

four ways to consent to PJ

A

*express
*implied: engaging in activity in forum
*waiver: failure to timely object
*appearance: voluntarily appear in court to argue the merits of the case

48
Q

where is venue proper for a nonresident of the U.S.?

A

any judicial district

49
Q

does the removal statute determine venue?

A

yes, venue is proper for the district court in which the original state court is located

50
Q

where is venue proper for a federal official acting under color of law or in their official capacity?

A

*any of the regular factors controlling venue or
*where the plaintiff resides

51
Q

where is venue proper for lawsuits brought under the Federal Tort Claims Act?

A

*where the plaintiff resides
*where the act or omission occurred

52
Q

requirements for person providing service

A

*18+
*not a party to the suit

53
Q

how can a federal court exercise PJ

A

*by following the rules of the state court in which the court sits
*by complying with federal due process requirements (general vs. specific)

54
Q

how can a party properly provide service?

A

*by following the rules of the state court in which the court sits or where service is made
*in-hand personal delivery
*delivery to an authorized agent (corporations)
*deliver to a person of suitable age and discretion who lives in the defendant’s dwelling

55
Q

standard for motion to dismiss for failure to state a claim

A

*view the evidence (limited to pleadings) and draw reasonable inferences in the light most favorable to the non-moving party
*treat all well-pleaded facts as true

56
Q

does failure to respond to an allegation result in an admission (answers and requests for admission)?

A

yes (unless the allegation in an answer relates to the amount of damages)

57
Q

is a reply to an answer required?

A

only if court ordered

58
Q

is failure to reply deemed an admission of an allegation in the answer?

A

no, not if a reply is not court ordered

59
Q

ways to initiate sanctions

A

*by party motion: serve motion but not file before 21d of such service
*sua sponte: requires the judge to issue an order to show cause

60
Q

when is a party necessary?

A

their absence will
*prevent the court from granting complete relief to existing parties
*prejudice their interests
*subject an existing party to multiple or inconsistent obligations

61
Q

when is a counterclaim compulsory?

A

*same nucleus of operative facts
*doesn’t require adding parties over whom the court can’t exercise jurisdiction

62
Q

types of claims waived if not included in an initial answer (or amended answer)

A

*lack of PJ
*lack of venue
*improper service
*compulsory counterclaims

63
Q

a plaintiff may only bring a claim against whom AS long as original SMJ is satisfied?

A

*impleaded third party
*intervenor
*party joined through permissive or compulsory joinder (except permissive joinder of P)

64
Q

requirements for Class Action Fairness Act

A

*100+ class members
*total aggregated AIC of $5mil+
*minimum diversity

65
Q

two requirements for class action certification

A

*meet four prerequisites
*case is suitable type of class action

66
Q

types of suitable class actions

A

*prejudicial risk to parties if separate actions
*final equitable relief is appropriate because the other party’s actions apply to the whole class
*common questions of law or fact predominate and the class action is the best method of resolution

67
Q

requirements for settlement or voluntary dismissal of class actions

A

*reasonable notice of proposal to all members
*statements filed identifying agreements made in connection with proposal
*hearing and opportunity for members to object
*court finding that the action is fair, reasonable, and adequate

68
Q

cases in which a party can demand a jury trial

A

involves legal claims (decided first if equitable claims also exist)

69
Q

when is an objection to jury instructions timely?

A

if made promptly after learning of a proposed instruction (before jury discharged)

70
Q

when a jury provides a general verdict and answers to more specific questions, what happens if the answers are inconsistent with the verdict?

A

the judge must
*order a new trial
*direct the jury to further deliberate
*disregard the verdict and enter a judgment consistent with the answers

71
Q

when must a party file a request for jury instructions?

A

*by the close of evidence
*UNLESS relates to issue party couldn’t have reasonably anticipated by deadline OR with court permission

72
Q

when can a motion for relief from final judgment be filed?

A

within one year of entry of the final judgment

73
Q

when is a motion for relief from final judgment allowed (issue types)?

A

*judgment due to mistake, excusable neglect, etc. by non-moving party or court
*the movant has newly discovered evidence that could not have been discovered with reasonable diligence in time to move for a new trial
*the non-moving party engaged in misrepresentation, fraud, or misconduct

74
Q

when is a judgment not made on the merits (claim preclusion)?

A

*lack of SMJ
*lack of PJ
*invalid joinder
*improper venue
*any other technical or procedural ground (not substantive)

75
Q

standard of review for court rulings

A

*legal ruling: de novo
*factual ruling: clear and convincing evidence
*abuse of discretion

76
Q

timing for filing notice of removal

A

within 30 days of service of complaint

77
Q

timing for filing motion to remand to state court

A

within 30 days of notice of removal

78
Q

timing for filing a demand for jury trial

A

within 14 days of last pleading

79
Q

timing for service

A

within 90 days of filing complaint

80
Q

timing for waiver of service

A

within 30 days of request of waiver

81
Q

timing for answer/initial motion

A

*within 21 days without waiver
*within 60 days with waiver

82
Q

timing for answer after MTD decision

A

within 14 days of decision

83
Q

timing for reply (if ordered)

A

within 21 days of service of order

84
Q

timing to amend as of right

A

within 21 days of service of answer or motion

85
Q

timing for adding a new party (relation back doctrine)

A

within 90 days of filing the original complaint

86
Q

timing to respond to an amended pleading

A

within 14 days of service

87
Q

timing for a motion for sanction

A

within 21 days of service of motion to opposing party

88
Q

timing for motion to implead

A

within 14 days of service of the original answer

89
Q

timing for expert witness disclosures

A

at least 90 days before trial

90
Q

timing for pre-trial disclosures

A

at least 30 days before trial

91
Q

timing for initial disclosures

A

within 14 days of the discovery conference

92
Q

timing for objecting to pre-trial disclosures

A

within 14 days of receipt

93
Q

timing for the discovery conference

A

at least 21 days before the scheduling conference

94
Q

timing for responses to interrogatories and requests

A

within 30 days of service

95
Q

timing for motion for summary judgment

A

within 30 days of discovery closing

96
Q

timing for renewed JMOL, motion for new trial, motion for relief from judgment, motion to amend judgment (bench trial)

A

within 28 days of entry of judgment

97
Q

timing for appeals (generally)

A

within 30 days of the judgment being appealed being entered

98
Q

timing for appeal of interlocutory order

A

within 10 days of entry of order

99
Q

timing for appeal of class action certification

A

within 14 days of entry of order

100
Q

timing for voluntary dismissal

A

before service of answer or MSJ

101
Q

when may a scheduling order be amended?

A

*the party asking shows good cause to amend and the judge consents
*THEN the other party cannot show sufficient prejudice would occur

102
Q

a final pretrial order may be amended

A

only to prevent manifest injustice

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