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Civil Procedure Flashcards

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1
Q

What are the 3 ways to establish subject matter jurisdiction in federal courts?

A
  1. Federal Question
  2. Diversity
  3. Supplemental
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2
Q

What is the well-pleaded complaint rule?

A

For federal question jurisdiction, the federal law must arise in plaintiff’s affirmative claim, not a defense.

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3
Q

When can a court assert jurisdiction over a state law claim that raises a federal issue?

A

If the federal question is:
- necessarily raised
- actually disputed
- substantial
- capable of resolution in federal court without disrupting the federal-state balance

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4
Q

What is diversity jurisdiction?

A

Complete diversity
Over $75,000

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5
Q

When does minimal diversity apply?

A

Class actions over 100 people and $5 mill
Only need a single plaintiff diverse from a single defendant

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6
Q

What is the citizenship of an individual?

A

Where they reside and intent to remain

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7
Q

What is the citizenship of a corporation?

A
  • state of incorporation
  • principal place of business - nerve center, where the directors sit and control business
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8
Q

What is the citizenship of an unincorporated association?

A

Citizenship of every member

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9
Q

What is the citizenship of a representative of an incapacitated party?

A

The citizenship of the the incapacitated party, not the representative

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10
Q

When can claims be aggregated for the purposes of meeting the amount in controversy requirement?

A

One plaintiff can aggregate multiple claims against a single defendant, even when not related.

Cannot aggregate multiple claims against multiple defendants.

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11
Q

What is supplemental jurisdiction?

A

Allows SMJ for a claim that does not have federal question or diversity jurisdiction, when related to a claim that does.

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12
Q

When does supplemental jurisdiction apply?

A
  1. When the claim is related - arises from the same transaction/occurrence
  2. When the anchor claim is a federal question
  3. If anchor claim is diversity, then only if the claim is not by plaintiff against joinded party (stacked or 3rd party defendant) —> no sneaky plaintiff
  4. If there isn’t a federalism issue or other compelling reason to deny supplemental jurisdiction
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13
Q

What is removal?

A

D can remove from state to federal court if the case could have originally been filed in federal court.

All defendants must agree.

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14
Q

What is the home state defendant rule?

A

D cannot remove for diversity if the case was originally filed in their home state.

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15
Q

What is the timeline for removal?

A

D must remove within 30 days of when the grounds for removal became apparent.

If diversity, D must remove within 1 year of filing.

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16
Q

What are the steps for personal jurisdiction?

A
  1. Authorization for jurisdiction in state statute - long arm statute, etc.
  2. 14th amendment due process concerns
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17
Q

When is personal jurisdiction constitutional under due process?

A
  1. Residency
  2. Consent or waiver
  3. Service
  4. Minimum contacts
  5. At home general jurisdiction
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18
Q

What is the test for minimum contacts?

A
  1. D has minimum contacts with the forum state
  2. The claim against D arises from the contacts
  3. PJ will not offend the traditional notions of fair play and substantial justice
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19
Q

Where is venue appropriate?

A
  1. If all defendants reside in the same state —> a district where any single defendant resides
  2. The district where a substantial part of the events or omissions giving rise to the claim occurred, or the property that is the subject of the action
  3. If nothing else, then the district in which any defendant would be subject to personal jurisdiction.
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20
Q

When can the venue be transferred?

A
  • convenience
  • agreement of the parties
  • interest of justice (if improper)
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21
Q

What is forum non conveniens?

A

If the most convenient forum is not in the US, the court cannot transfer, but will dismiss without prejudice so that the plaintiff can refile in the proper country.

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22
Q

What are the steps of Erie Analysis?

A
  1. Apply Constitution or federal statute, if valid and on point.
    • must not abridge, enlarge, or modify any substantive right
  2. If not, apply ordinary practices, unless it would lead to unfairness or forum shopping.
    - if there’s an issue, apply state law so that the law is the same regardless of whether federal or state court
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23
Q

What must the complaint include?

A
  1. Grounds for SMJ
  2. Statement of facts that are sufficient to show that P is entitled for relief
    - must be plausible
  3. Demand for judgement and relief sought
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24
Q

How long does a party have to amend a complaint or answer?

A

21 days after serving

One amendment by right, then whenever with the consent of the court.

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25
Q

When can a party amend a complaint?

A

Once as a matter of right
More if permission of opposing parties or court

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26
Q

When will an amendment to a complaint adding a claim relate back to the original filing date?

A

When the claim arises from the same transaction or occurrence.

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27
Q

When will an amendment to a complaint adding a new party relate back to original filing date?

A
  • the new claim arises from the same transaction and occurrence
  • the new party knew of the suit soon enough to not be prejudiced
    AND
  • the new party should have expected to be named, but for a mistake in identity
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28
Q

Who can serve process and when?

A

Anyone at least 18 and not a party
Must be served within 90 days of filing complaint

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29
Q

How can process be served to a natural person under the federal rules?

A
  • deliver to defendant
  • leave at defendant’s usual abode with a person of suitable age and discretion who resides there
  • serve the defendant’s registered agent
  • mail with a letter requesting the defendant waive in person service
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30
Q

How can process be served to a corporation, partnership, or association?

A
  • deliver process to an officer
  • deliver process to a managing agent or general agent
  • deliver process to any other agent authorized by appointment or by law to receive service
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31
Q

When is service sufficient for due process?

A

When the plaintiff took action that was reasonably calculated to inform the defendant of the action against them

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32
Q

How long do you have to file an answer to a complaint?

A

21 days after service with process

60 days after waiving process

14 days after a motion is denied, if first response was a motion

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33
Q

How can a defendant respond to a complaint?

A
  1. Answer - admit or deny allegations, assert defenses
  2. Motion for a more definitive statement
  3. Motion to strike
  4. Motion to dismiss
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34
Q

What defenses are not waived if not included in the answer?

A
  • failure to state a claim on which relief can be granted
  • failure to join a necessary party
  • lack of SMJ
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35
Q

What is required to get a preliminary injunction or temporary restraining order?

A
  • notice to the adverse party
  • likelihood of success on the merits
  • irreparable harm
  • balance of hardships
  • public interest
  • payment of security
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36
Q

When are counterclaims compulsory?

A

When they arise out of the same transaction or occurrence.

Forfeited if not filed.

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37
Q

When are cross claims permitted?

A

When they arise out of the same transaction or occurrence underlying one of the plaintiff’s claims.

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38
Q

What is an impleader?

A

A defendant bringing a claim against a person not already a party

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39
Q

When is an impleader allowed?

A

Must allege that the third party is responsible for all or some of the liability.

Mist file within 14 days of answer, or else get permission from the court

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40
Q

When is a joinder permissive?

A

Joinded parties claim relief/face liability that arises out of the same transaction or occurrence
Questions of law or fact common to joined parties

41
Q

When is a joinder mandatory?

A
  1. Is the party necessary?
  2. Can the necessary party be joined?
  3. If the necessary party cannot be joined, is the party indispensable?
    - if yes, dismiss the case
42
Q

When is an absent party necessary?

A
  • has an interest that might be impaired if left out
  • complete relief could not be issued in the party’s absence
    Or
  • current parties would be subject to inconsistent or duplicative liability
43
Q

What does the court consider in determining when a necessary party is indispensable?

A
  • the extent of prejudice to the missing party
  • whether the prejudice can be lessened by shaping the relief in a certain way
  • whether the plaintiff could find relief in another forum if the suit were dismissed
44
Q

What are the requirements to form a class for a class action?

A
  • numerology - joinder is impractical
  • commonality - questions of law or fact common to the case
  • typicality - representative claims must be typical of the class
  • representativeness - representative parties will fairly and adequately protect the interests of the class
45
Q

When is a claim proper for resolution via class action?

A
  • Separate actions would result in in consistent judgements or judgements that would impair non-parties from protecting their interests.
  • The opposing party has acted in ways generally applicable to the class (not likely for money damages)
  • The court finds that common questions of law or fact predominate over individualized questions, and a class action will be more fair/efficient.
46
Q

What is an interpleader claim?

A

Used when a party fears it will face multiple/inconsistent liabilities. Two plaintiffs seeking the same judgement (like property or life insurance payouts), so def may file an action to ask those two parties to sort out who can actually make the claim.

47
Q

What is intervention?

A

When a non-party has an interest in the claim, but has not been joined.

48
Q

When does a party have an intervention of right?

A

The party must be permitted to intervene when the party claims an interest relating to the subject matter of the action and may not be able to protect that interest without intervention.

49
Q

When is an intervention permissive?

A

Might be permitted to intervene at the court’s discretion if the party has a claim or defense that shares with the main action a common question of law or fact.

50
Q

What is the bulge rule?

A

An impleader defendant will be subject to the personal jurisdiction of a federal court if, in addition to any other grounds of PJ, the defendant is served with process within 100 miles of the courthouse where the suit is pending.

51
Q

When must initial discovery disclosures be made?

A

Within 14 days after the discovery planning conference.

52
Q

What must be included in initial discovery disclosures?

A
  • witnesses - name and contact info of any witness
  • documents
  • computation of damages
  • insurance agreements
53
Q

When must expert disclosure occur, and what must be included?

A

At least 90 days before trial.

  • name and contact info
  • qualifications
  • opinion of expert
  • information relied on by the expert
54
Q

When must pretrial disclosures be provided?

A

At least 30 days before trial.

55
Q

What must be included in pretrial disclosures?

A
  • list of witnesses expected to call at trial
  • list of witnesses that may be called if the need arises
  • list of witnesses whose testimony will be given through deposition or transcript
  • list of documents or physical evidence they expect to present
56
Q

What information is discoverable upon request?

A
  • any no privileged matter that is relevant to any claim or defense.
  • requests must be proportional to the needs of the case.
57
Q

When can work product be discoverable?

A

If the party has a substantial need and cannot get that information without undue hardship

58
Q

What are interrogatories?

A

Up to 25 questions per party, have 30 days to respond.

59
Q

How long do you have to respond to requests for admission?

A

30 days

60
Q

How long do you have to respond to requests for admission?

A

30 days

61
Q

How many depositions do you get?

A

Up to 10, but can request more from the court

62
Q

What are subpoenas used for?

A

To get discovery from non parties.

63
Q

What are the consequences of refusing to comply with a court order regarding discovery after a motion to compel?

A
  • declaring facts in favor of the opposing party
  • staying or dismissing the action
  • holding you in contempt
64
Q

When is a claim voluntarily dismissed?

A
  1. Unilateral dismissal by filing notice at any time before the defendant has filed an answer or motion for summary judgement
  2. Stipulation of dismissal signed by all parties (settlement)
  3. Permission of the court
65
Q

When is a case involuntarily dismissed?

A

If the plaintiff fails to prosecute the case or refuses to comply with a court order or any of the FRCP

Operates as an adjudication on the merits, with prejudice

66
Q

What are the steps for a default judgement?

A
  1. Entry of Default by the clerk
  2. Entry of a default judgement
    - by clerk if for a sum certain
    - by judge in other cases
67
Q

Which grounds for dismissal are waived if not raised in the first motion or answer?

A
  1. PJ
  2. Venue
  3. Insufficient process
  4. Insufficient service of process
68
Q

Which grounds for dismissal are waived if not raised before the end of trial?

A
  • failure to state a claim on which relief can be granted
  • failure to join a necessary party
69
Q

When is a motion for summary judgement proper?

A

When there is no genuine dispute of material fact, and the movant is entitled to judgement as a matter of law.

Look at the evidence in light most favorable to the non moving party.

70
Q

When can a motion for summary judgement be made (timeline)?

A

Any time before 30 days after the close of discovery.

71
Q

When must a demand for a trial by jury be made?

A

14 days after the last pleading directed to the jury-eligible issue is filed.

72
Q

When does the 7th amendment provide for a right to a jury trial in civil cases?

A

In suits at common law - damages, not equitable relief.

73
Q

How many people must sit on a jury in civil trials?

A

6-12

74
Q

How can jury composition be challenged?

A
  • unlimited number of challenges for cause, but must articulate why
  • 3 preemptory challenges, no justification needed unless gender/race discrimination - must be able to provide a nondiscriminatory explanation
75
Q

When must objections to jury instructions be made?

A

Before the jury begins deliberations.

If the parties are informed of jury instructions sooner, objections must be made before closing arguments.

76
Q

What is a motion for judgement as a matter of law?

A

Entered during jury trials, asks the court to make a judgement when no dispute of facts.

  • the party against whom judgement is entered has been fully heard on the issue
  • the party lacks sufficient evidence to prevail on an issue necessary to a claim or defense.

Could a reasonable jury find in favor of the nonmoving party with the evidence they’ve presented

77
Q

What is a renewed motion for judgement as a matter of law?

A

Can only file within 28 days of the entry of judgement, only if the party filed a motion for judgement as a matter of law during the trial and lost.

78
Q

When can a party move for a new trial?

A

28 days after the entry of judgement.

  1. The verdict is against the great weight of the evidence
  2. There are excessive damages - shocks the conscience
  3. A procedural error or misconduct - affected the result of trial and timely objection
  4. There is newly discovered evidence that couldn’t have been found with reasonable diligence and which would have likely changed the result.
79
Q

What is a motion for relief from judgement?

A

Asks the court to set aside the judgement. Must be made promptly upon learning of the grounds.

Mistake, new evidence, fraud — must be made not later than 1 year

80
Q

What are the grounds for a motion for relief from judgement?

A
  1. Mistake, inadvertence, or excusable neglect
  2. Newly discovered evidence
  3. Fraud, misrepresentation, or misconduct by a party
  4. Judgement is void
  5. Judgement has been satisfied
  6. Any other reason that justified relief
81
Q

What is the standard of review for appellate review of questions of law?

A

De novo review

82
Q

What is the appellate standard of review for questions of fact?

A

Clearly erroneous

83
Q

What is the harmless error rule?

A

The appellate court may affirm an error if it did not affect the result.

84
Q

When must an appellate file a notice of appeal?

A

30 days after the judgement or denial of a post-trial motion

14 days after class certification

85
Q

When does claim preclusion apply?

A

Same parties
Same transaction or occurrence
Valid final judgement on the merits

86
Q

When does issue preclusion apply?

A
  • litigated and determined in the prior suit
  • essential to the judgement
  • prior suit ended in a judgement on the merits
  • the party to whom preclusion is asserted must have had a full and fair opportunity and incentive to litigate the issue in the first suit
87
Q

When is a voluntary dismissal considered with prejudice?

A

the 2nd voluntary dismissal is with prejudice, and operates as an adjudication on the merits.

88
Q

When is otherwise proper personal service insufficient for personal jurisdiction?

A

when the defendant is only in the forum state due to force, fraud, or participation in another judicial proceeding.

89
Q

Can parties agree to transfer to a venue that would have been originally improper?

A

Yes. All parties must consent.

90
Q

What is required in a complaint for fraud?

A

Must state particular complaint about what false statements were made.

91
Q

Which involuntary dismissals are judgements on the merits?

A

all of them, except
- jurisdiction
- improper venue
- failure to join a necessary party

92
Q

What are affirmative defenses?

A

Those relying on factual issues not presented in the complaint.
Must be stated in an answer or counterclaim, or will be waived.

93
Q

What is statutory impleader?

A

For an impleader case, federal courts can issue process and have it served nationwide, which is sufficient for personal jurisdiction regardless of the state in which process was actually served.

94
Q

Has the right to a jury trial in civil cases been incorporated on the states by the 14th amendment?

A

No. 7th amendment right to a jury trial in civil cases does not apply to the states.

95
Q

What are the factors considered for traditional notions of fair play and substantive justice for the minimum contacts test for personal jurisdiction?

A
  1. Burden on defendant of litigating in the forum state.
  2. Forum state’s interest in litigating in the forum state.
  3. Plaintiff’s interest in litigating in the forum state.
  4. Considerations of judicial efficiency and convenience.
96
Q

When can the court try an issue with an advisory jury?

A

In an action not triable of right by a jury, the court, on motion or on its own may try any issue with an advisory jury

97
Q

What is Quasi-in rem jurisdiction?

A

Quasi in rem jurisdiction applies where a court cannot exercise in personam jurisdiction due to there not being a sufficient long-arm statute in place, but where there is property in the forum state that is attached as part of the relief requested. There must still be minimum contacts and a finding that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

98
Q

When will a trial court certify an order for interlocutory appeal?

A

(1) the order involves a controlling question of law as to which a substantial ground for difference of opinion exists; and
(2) an immediate appeal from the order may materially advance the termination of the litigation

99
Q

What notice is required to potential members of a class action?

A
  1. that the court will exclude any member of the class who requests exclusion;
  2. that the judgment, whether or not favorable, will be binding on all class members who do not request exclusion; and
  3. that any member who does not seek exclusion may enter an appearance

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