Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Exam > Civil Procedure > Flashcards

Civil Procedure Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Subject Matter Jurisdiction

A

A court must have subject matter jurisdiction to hear a case. Lack of SMJ can be raised at any time

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Federal Question Jurisdiction

A

a federal court has federal question jurisdiction over all civil actions that arise under federal laws or the constitution.
Only includes gederal issues presented on the face of the well pleaded complaint, does not include defenses, answers, or counterclaims

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Diversity Jurisdiction

A

A federal court has diversity jurisdiction if there is complete diversity between the parties and the amount in controversy** exceeds 75k. **
Individuals are citizens where they are domiciled
corporations are citizens where they are incorporated and where they have their principal place of business/nerve center
Partnerships and LLCs are citizens where every individual partner/member is domiciled

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Supplemental Jurisdiction

A

Supplemental jdx is discretionary with the federal court
a court with SMJ over one claim may hear other claims if they share a common nucleus of operative fact
federal q: court can hear state law claims if they share CNOF
diversity:
counterclaims: compulsory yes, permissive no, unless they meet AOC/complete diversity requirements
cross claims: yes, if CNOF
joinder: cannot destroy complete diversity
Does not extend to claims by existing plaintiffs against multiple defendants, or plaintiffs joined as necessary parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Removal

A
  • a defendant may remove a case from state to federal court if plaintiff’s claim could have been originally filed in federal court
  • Removal to district court where the state action is pending
  • must be done within 30 days of service, all defendants must consent
  • Home court advantage rule
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Remand

A

case can be remanded back to state court if
-lack of SMJ at any time
-improper removal (lack of consent from all defendants, untimely, home court advantage rule), within 30 days of removal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

California Subject Matter Jurisdiction

A

Small claims: 12k or less for inviduals, 5k or less for other litigants
Limited cases: 35k or less
Unlimited: more than 35k
aggregates all claims, including cross claims

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Reclassification of California JDX

A

unlimited to limited: verdict will necessarily fall below 25,000.01
limited to unlimited: possibility will exceed 25k

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Personal JDX analysis

A

**Traditional bases: **served in forum state (federal, doesn’t count if you are there for court/depo), consent, domicile
Long arm statute: test whether it’s constiuttional
Minimum Contacts: purposely avail, foreseeablility, specific v. general (domicile or specific/continuous contacts)
Fairness: interest of forum state, burden on defendant, interest in judicial efficiency, shared interests in the states

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

In Rem jdx

A

action against real or personal property to settle property rights of all persons

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Quasi in rem

A

determines only the interests of the parties to the action regarding property located in the forum state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Service of Process

A

notice must be reasonably calculated to apprise D of pendency
must have summons and copy of complaint
Who: any nonparty 18 or older
When: wihtin 90 days after filed complaint
Methods: personal service, D’s usual place of abode wth a person o fsuitable age/discretion who lives there, delivering to D’s agent, othe rmethods allowed by law, officer/agent of corporation,
CA methods: publication and service on a nonresident by first class mail requiring a return receipt, requires follow up mailing for substituted service

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Federal exceptions to service of process

A

Federal interpleader act: nationwide personal jurisdiction
Bulge provision: 100 miles wihtin federal courthoes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Waiver of process

A

P sends form requesting D waive service by returning form within 30 days, federally it extends time to file answer to 60 days

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Venue in California

A

Claim arose elsewhere: county where any D resides, any county if no D is from CA, where the contract was executed or performed, or where the injury occured
Transfer: fair trial can’t be held in original county, convenience requires, no judge qualified

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Federal Venue

A

venue is proper in a district in which any D resides as long as they all reside in the same state, or where a substantial part of the claim arose. Otherwise, anywhere where Dis subject to personal jurisdiction. the residence of an individual is their domicile, the residence of a business entity is where they are subject to personal jurisdiction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Transfer in federal court

A

original venue proper: permitted to any district where case might have been brought or where all parties consent. applies law from transferor court
original venue improper: dismiss or transfer case to proper district, choice of law is transferee court,
forum non conveniens: may dismiss if most appropraite forum is state or foreng court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Choice of Law

A

a federal court sitting in diversity will apply federal procedural law and state substantive law.
substantive laws: statute of limitations, elements of cliam/defense, conflict of law, burden of proof, things that will change the outcome
procedural: FRE, attoreys fees, jury issues
essentially: if there is a conflict between state and federal alw, and no federal rule is on point, court will apply state law if it is outcome determinative, or if it prevents forum shopping

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

CA choice of law rules

A

Federal court in CA applies CA conflict of law rules
Tort: applies government intrest approach
Contract: gov’t interest absent a valid choice of law clause, choice of law clause is invalid unless chosen state has substnail relaionthsip to parties or transaction and it is consistent with CA public policy

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Government Interest Test

A

IF the laws of two or more states conflict, evaluate whether each state has an interest in applying their own law. If each state does, then balance impairment of each state’s interests.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Complaint

A

Federal: notice pleading, short and plain statemetn to provide notice to opposint party
California: fact pleading
Special pleading: particularity needed for fraud or special damages
Must include: grounds for smj, statement of claim and entitlement to relief, demand for judgment of relief sought
Federal joinder: between same P and D, join as many claims of whatever nature
CA joinder: at least one common question of law or fact

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Reponse to Complaint

A

Must respond with answer or motion within 21 days of service (or 60 in federal if waived service)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Answer

A

Fed timing: 21 days after service, 60 days if waived, or 14 days after response to motion to dismiss
CA timing: 30 days after service, or wihtin 10 days after demurrer resolution
must admit or deny and raise affirmative defenses or counterclaims
affirmative defenses: Statue of frauds, statute of limitations, fraud, res judicata, contributory negligence
CA: objecting to personal jdx in an answer is a general appearance and WAIVES PJ, D must file a cross complaint instead of alleging her cross claim in the answer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Motion to Dismiss

A

Rule 12(b) motion (Fed):
anytime: lack of subject matter jdx, failure to state a claim, failure to join necessary party
waived if not first response:
lack of personal jdx, improper venue, insufficient service of process
standard: treat well pleaded facts as true, view pleading in light most favorable ot P
**CA: ** object with a demurrer or a **motion to quash **because parties must meet and confer before a demurrer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Motion for judgment on the pleadings

A

allows a court to dispose of a case when material facts are not in dispute and judgment on the merits can be acheived based on the pleadings
CA: must meet and confer first

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Motion for more definite statement

A

if pleading is so vague or ambiguous that a party cannot reasoanbly draft a responsive pleading, then the responding party may request a more definite statement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Motion to strike

A

if pleading contains insufficient defense or reduant, immaterial, impertiinet, or scandalous material, then the court may upon motion or upon its own initiative order that it be stricken
CA: requires meet and confer, must be within 30 days

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Reply to answer

A

Fed: within 21 days after being serviced with court order to reply (not ordinarily needed)
CA: files separate answer to cross complaint

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Amendments to Pleadings

A

**As of right: **
-no later than 21 days if no responsive pleading required
-if responsitve pleading required, within 21 days of service of the responsive pleading
-CA: allowed at any time before answer, demurrer, or motion to strike filed
By leave of court: when justice requires and no undue prejudice to opposing party
TIme to respond: 14 days after amended pleading or time left, whichever longer

30
Q

Relation back

A

an amended pleading will relate back to the date of the original pleading if it involves same transaction or occurence and provides notice to opposing party
adding a party: party must receive notice within** 90 days** of complaint and know or have reason to know the action should have been brought against him but for a mistake of identity
CA: Doe defendants if P can identify and serve D within 3 years

31
Q

Certification (Rule 11)

A

Signature required of attorney on every pleading or motion
certifies that the filing was made after reasonable inquiry with proper purpose and certifies the legal and factual support of the claim
Sanctions: cadn be initiated by motion or sua sponte, discretionary, must service notice on party and wait 30 days before filing with the court
CA: party seeking sanctions must have exercised due diligence

32
Q

Compulsory Joinder

A

necessary party: complete relief cannot be provided to existing parties in their absence, disposition in their absence may impair their ability to protect their interest, or absence would leave existing parties subject to multiple or inconsistent obligations
Bulge provision applicable
Indispensible party: if a necessary party cannot be joined because of jdx or venue, court may dismiss considering the extent to which protective measures could prevent prejudice, whether judgment could be adequate, and whether there would be an adequate remedy if action was dismissed

33
Q

Intervention

A

of right: nonparty has an interest in subject matter that is not adequately represented and will be impaired, or thru statute
permissive: movant has conditional righ tot intervene unders tatute or claim/defense share common nucleus of operative fact
CA: intervenors interest must be direct and immediate
timeliness: must consider prejudice and delay

34
Q

Impleader

A

nonparty is joined by D based on a claim of indemnity or contribution
personal and subject matter must be satsifed, but supplemental jdx is available if same transaction occurence
Bulge provision service

35
Q

Interpleader

A

allows a stakeholder to force all potential claimaints into single lawsuit
Federal Rule Interpleader: must already have personal and smj over parties, only stakeholder needs to be diverse from claimants, venue must be proper too (basically normal)
**Federal Statutory Interpleader: diversity jurisdiction met if any two adverse claimants are diverse (minimal diversity**) and property is 500 or more, nationwide pj and service of process permited, venue: any district where a claimaint resides

36
Q

Basic Class Action requirements

A

[CANT]
Commonality: common questions of law or fact
Adequacy: representatives must fairly represent class
Numerosity: class is so numerous tha tjoinder is impracticable
Typicality: claims/defenses of representatives are typical of the class

37
Q

Diversity Subject Matter jdx for class action

A

normal: diverseity between class representatives and opposing parties, at least one rep must have a claim exceeding 75k
Class action fairness act: 100+ members with 5 million at stake and minimal diversity (any one plaintiff’s citizenship is different than any one defendant’s)

38
Q

Settlement and judgments in class actions

A

settlements can only be made with approval or the court and court must direct notice to all clas members bound
judgment: generally binds all members except those who opted out

39
Q

Types of class actions

A

**risk of prejudice: **risk of mulitple inconsistent adjudications
final equitable relief: class has general claim and want injunctive relief, individsible remedy would provide releif to each class member
common legal/factual questions must predminate over individual questions

40
Q

California class action requirements

A

Ascertainable class
well defined community of interest (common questions of law/fact predominate, class action will benefit parties, named class reps will adequately represent class)

41
Q

Mandatory Disclosures

A

intial disclosures: names/addresses of people with discoverable info, copies or descriptions of documents, items, computation of damages and insurance agreements, 14 days after discovery conference
testifying expert disclosures: qualifications, publications, compensation, opinion and basis, and listof cases, 90 days before trial or 30 days after disclosure of opposing party’s expert
pre trial: all witnesses and exhibits to be used at trial, at least 30 days before trial, objections must be made 14 days after disclsoures unless good cause
ca: initial disclosures within 60 days of court order

42
Q

Discovery scope

A

any non privileged matter relevant to a claim or defense is discoverable proportional to needs of the case
CA: broader, any matter relevant to the subject matter
exceptions: privilege, work product unless undue hardship and not mental impressions, non testifying experts, protective orders
Must wait til after discovery conference and cannot ask for unreasonably cumulative, not if it can be obtained from more conventinet source,

43
Q

Discovery Conference

A

Fed: parties must meet and confer 21 days before
CA: no meet and confer required, must have conference within 180 days of complaint

44
Q

Depositions

A

allowed after intitial disclosures
FRE: 10 depositions of one day in duration,
CA: no number limit, limited to 7 hours per witness
notice to party required, subpeona or subpeona duces tecum for non party

45
Q

Interrogatories

A

only to party
Fed: limited to 25
CA: limits individually drafted to 35, unlimited judicial council form
must be fully and separately answered or objected to with specificity

46
Q

Requests to Produce or permit inspection

A

must be described with particularity and applies to documents and land under control of a party
may be sent to nonparty only if subpeona
30 days to respond

47
Q

Physical/mental exam

A

only allowed of a party and only if physical/mental state is at issue. requires a showing of good cause and a court order
CA: attorney must be allowed to attend

48
Q

Requests for admission

A

allowed for a party, but cannot be used in other proceedings,
CA: limited to 35 absence good cause

49
Q

Motion to Compel

A

prerequisite to seeking sanctions, grounds include evasive, incomplete, or non response.
must certify attempt in good faith to obtain discovery
CA: must make reasonable efforts to resolve

50
Q

Sanctions

A

if a party fails to obey a court order regarding discovery, court may impose sanctions
CA: misuse of discovery process shall result in monetary sanction unless substantial justification

51
Q

Temporary Restraining Order

A

preserve status quo pending a hearing, can be issued ex parte
14 days maximum (15 for california)
elements:
immediate irreparable harm
likelihood of success on the merits
balance of hardships
without notice: certification of efforts made to give notice or reason why notice should not be required

52
Q

Preliminary Injunction

A

preserve status quo pre trial
D must have notive and opportunity to be haerd
requirements: liklihood of success on the merits, irreparable harm, balancing of harms

53
Q

Permanent injunction

A

plaintiff has succeeded on the merits
requirements: irreparable harm, balancing of hardships

54
Q

Default judgment

A

a party has failed to plead or defend the action
msut be shown by affadavit, after which entry of default is made by court clerk
after entry is made, may seek default judgment, by clerk if sum certain and defendant is not minor, by court if party appeared, needs to determine damages
default can be set aside for good cause

55
Q

Voluntary dismissal

A

P can dismiss without leave of court before opposint party serves answer/motion for summary judgment or by stipulations of all parties
can dismiss with court order, court decides whether with/without prejudice,
CA: after commencment of trial, P can only dismiss with prejudice

56
Q

Involuntary dismissal

A

If P fails to prosecute or comply with rules/court order, D can move to dismiss and is with prejudice
CA: court must dismiss after five y ears have elapsed since filing of complaint or three years if complaint has not been served, may dismiss after two years

57
Q

Summary Judgment

A

no genuine dispute as to any material fact and movant is entiteld to judgment as a matter of law. court construes all evidence in light most favorabel to nonmoving party
can be filed up til 30 days after close of discovery

58
Q

Right to a jury trial

A

guaranteed for civil action at law (money damages) but not equitable remedies
CA: all actions at law
Demand: must be in writing within 14 days after service of last pleading
CA: demand must be wihtin five days after notice the case is set
Jury size: at least 6, no more than 12, must be unanimous
CA: must have 12 unless parties agree to fewer, doesn’t have to be unanimous
Selection: unlimited for cause, 3 preemptory not based on race or gender
CA: further limits peremptory challenges so they can’t be used on race, color, religion, sex, sexual orienation, age, disability

59
Q

Jury Instructions

A

parties file proposed instructions at close of evidence, objections msut be raised before jury is instructed to preserve for appeal
court must inform parties of any instructions before closing arguments

60
Q

Motion for Judgment as a Matter of law

A

evidence cannot support a contrary verict, entitling movant to judgment as a matter of law
can be made after plaintiff’s case or after close of evidence

61
Q

renewed motion for judgment as a matter of law

A

federal: must have made a motion judgment for matter of law, must be filed within 28 days of entry of judgment
CA doesn’t require initial judgmnet as a matter of law, but must be made after the decision and before judgment

62
Q

Bench trial

A

court must make findings of fact and conclusion of law on the record at the close of evidence or in an opinion or memorandum filed by the court
on appeal, finding of fact can only be set aside if clearly erroneous

63
Q

Motion for a new trial

A

must be made within 28 days of entry of judgment
at the discretion of the court
grounds: trial error, newly discovered evidence, prejudicial misconduct by parties, judge, jury, verdict is excessive or inadequate (remittitur allowed, additor not (unless CA)
Harmless error not grounds for new trial
the grant must include the reasons

64
Q

Relief from judgment

A

awarded if enforcement would cause injustice
must be within a year of entry of judgment
grounds: mistake, newly discovered evidence, fraud,
CA: mandatory relief if default or dismissal caused by attorney mistake or neglect
exception: no time limit for void judgment, judgment discharged, based on vacated judgment,

65
Q

Appeal

A

must be filed within 30 days of entry of judgment
standard of review: questions of law de novo, discretionary rulings of judge: abuse of discretion

66
Q

Final Judgment Rule

A

only a valid final judgment on the merits can be appealed

66
Q

Collateral order rule

A

allows a court to hear and rule on a district court order if it conclusively determines the disputed issue, resolves an important issue that is completely separate from the mertis of the case, and is effectively unreviewable on appeal from final judgment

67
Q

Interlocutory Orders

A

some equitable nonfinal orders can be appealed immediatelty (injunctions, receivers, admiralty)

68
Q

Claim Preclusion (Res Judicata)

A

a final judgment on the merits precludes the parties from litigating the claim again
Elements:
Valid,
Final judgment,
on the merits,
same cause of action (same transaction or occurence (fed)/ primary rights approach (CA)),
same parties and their privies

69
Q

Issue Preclusion (collateral estoppel)

A

a final judgment on the merits precludes relitigation of issues that were necessarily decided in the previous action
Elements:
valid, final judgment on the merits
same issue
actually litigated (not default judgment in fed, but includes default in CA)
Essential to the judgment
Due process
mutuality: can be used against or by one who was a party or in privity to a party

Bar Exam (16 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions