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Bar Prep > Civil Procedure > Flashcards

Civil Procedure Flashcards

1
Q

What are the 4 ways most state statutes grant personal jurisdiction?

A

Service of process, domicile, consent, and long-arm

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2
Q

What are the 3 tests for determining the constitutionality of personal jurisdiction?

A

Minimum contacts, relatedness, and fairness.

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3
Q

What 2 things constitute minimum contacts?

A

Purposeful availment and Foreseeability

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4
Q

What 4 kinds of cases will federal courts never hear?

A

Divorce, alimony, child custody, and probate

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5
Q

Where are unincorporated businesses domiciled?

A

All states where any partner or member is a citizen.

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6
Q

What is the standard for establishing the amount in controversy for a diversity case?

A

Good faith allegation

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7
Q

Where is FQJ established?

A

In a well-pleaded complaint.

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8
Q

What is the magic question to determine FQJ?

A

Is the plaintiff trying to enforce a federal right?

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9
Q

What are the 4 most common kinds of cases that always fall under federal question jurisdiction?

A

Bankruptcy
Antitrust
Postal Matters
Patent, copyright, trademark

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10
Q

What is the main requirement for a court to have supplemental jurisdiction over an additional claim?

A

There must be a ‘common nucleus of operative fact’ between the two claims.

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11
Q

What are the 3 reasons a court might refuse a proper supplemental claim?

A

Original SMJ claim is dismissed early.
There’s a novel/complex state issue.
Supp. claim substantially dominates over original claim.

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12
Q

Can plaintiff’s use supplement jurisdiction?

A

Only if used by a co-plaintiff that doesn’t meet the minimum amount in controversy in a diversity case, and they don’t ruin complete diversity.

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13
Q

When is removal of a state case to federal court proper?

A

When a case could have originally been filed in federal court as long as the case was not filed more than 1 year ago.

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14
Q

Who can remove a case to federal court?

A

Only a defendant if all defendants agree.

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15
Q

Assuming all requirements for removal are met, what are the 2 restrictions?

A

Cannot remove if already submitted a permissive counterclaim.
Cannot remove if original case was brought in defendant’s own state.

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16
Q

What are the 4 requirements of Notice to remove a case to federal court?

A

Contain grounds for removal.
Signature.
Copies of case documents.
Sent to all parties and the state court.

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17
Q

Regarding Erie, if there is no federal law on point that conflicts with state law, what are the 3 remaining factors to analyze?

A

Outcome determinative
Balance of interests
Forum shopping avoidance

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18
Q

What 4 areas of law are ALWAYS considered substantive for Erie purposes?

A

Elements of claims or defenses.
Statutes of limitation and tolling.
Choice of law rules.
New trial standards due to jury award decision.

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19
Q

What are the 2 main ways to have venue, and what is the 1 fallback if neither main way works?

A

Any district a defendant resides if all defendants reside in the same state.
The district of the claim or property.
OR…any district where any defendant is subject to personal jurisdiction.

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20
Q

How is residency determined for Venue purposes for businesses?

A

They reside in any state where they are subject to personal jurisdiction.

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21
Q

Where can a case’s venue be transferred to?

A

Any venue which would have been proper in the original filing, or any venue where all parties consent.

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22
Q

How can a court respond to venue transfer if original venue was proper?

A

It may order transfer based on the interest of justice and convenience of the parties, or it can refuse.

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23
Q

How can a court respond to venue transfer if original venue was improper?

A

It may transfer to a proper venue or dismiss the case.

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24
Q

How does choice of law work for cases where venue was transferred?

A

New venue applies choice of law rules from original venue unless original venue was improper.

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25
Q

What happens if a case is filed in a venue against a forum selection clause?

A

Case must be transferred to proper venue unless there are compelling public factors not to transfer.

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26
Q

Who may serve process?

A

Any non-party at least 18 years old.

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27
Q

What are the 4 methods for serving process?

A

Personally serve defendant.
Serve housemate of D of suitable age at residence.
Serve D’s authorized agent.
Any method allowed under state law.

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28
Q

What are the 4 factors to get a preliminary injunction?

A

Irreparable injury
Reasonable likelihood of success on merits.
Balance of hardships.
Public interest.

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29
Q

What are the 3 requirements in a Complaint?

A

Statement of jurisdiction.
Statement of claim.
Demand for relief sought.

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30
Q

What is the standard for pleading a Complaint?

A

Plausibility

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31
Q

What 3 kinds of cases requires more specificity than the plausibility standard for a Complaint?

A

Fraud
Mistake
Special damages

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32
Q

What 2 things need to be in an Answer?

A

Response to allegations
Affirmative defenses

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33
Q

What 4 Rule 12 motions must be made in first response, otherwise they are waived?

A

Lack of PJ
Improper Venue
Insufficient process
Insufficient service of process

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34
Q

What is a compulsory counterclaim, and when must it be raised?

A

A claim by a D against the P that arises from the same transaction or occurrence.
It is required in defendant’s Answer.

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35
Q

What is a permissive counterclaim?

A

A claim by a D against P that does not arise from the same transaction or occurrence.

36
Q

What is a crossclaim?

A

A claim by a co-party against a co-party when the claim arose from the same transaction or occurrence as the case claim.

37
Q

When can one amend a pleading if it’s been longer than 21 days since service of process?

A

With written consent from adverse party,
or if court grants permission when justice requires.

38
Q

What is a variance and when is it allowed?

A

It’s amending a pleading when evidence at trial doesn’t match the original pleading. It is allowed as long as there is no objection from opposing party.

39
Q

What are the 3 things that Rule 11 certification indicates to the court?

A

Filing is proper, not frivolous, and has evidentiary support.

40
Q

What is permissive joinder?

A

When a plaintiff seeks to join a co-plaintiff, with their permission, or co-defendant whether or not they want to.

41
Q

What are the 2 requirements for permissive joinder?

A

Same transaction or occurrence
Common question of law or fact

42
Q

What is Impleader?

A

When a defendant joins a non-party who may also be liable.

43
Q

What is Intervention?

A

When a non-party seeks to join a pending suit either as a co-P or co-D.

44
Q

When are the 2 times Intervention is a right?

A

When 3rd party’s interest will be harmed if not joined and no existing party will adequately represent those interests.
If there is a statutory right.

45
Q

When are the 3 times Intervention is permissive, but not a right?

A

3rd party has a claim or defense that shares a common question of law.
There is a conditional statutory right.
3rd party is govt officer/agency related to claim.

46
Q

What are the 4 required elements to certify a class action class?

A

Numerosity- joinder impracticable
Commonality-questions common to all
Typicality-claims/defenses typical for class
Adequacy-Representative adequate for class

47
Q

What 3 things must the court do when certifying a class for class action?

A

Define the class
Define the claims, issues and defenses
Appoint class counsel

48
Q

When is a class action class certification appealable?

A

Immediately, but appellate court has discretion to review.

49
Q

What 2 main things are discussed at the mandatory meet and confer?

A

Claims, defenses, and settlements
Develop discovery plan

50
Q

What 3 things must be disclosed in the initial disclosure?

A

Sources of discoverable information (witnesses and documents).
Damages (computation)
Insurance (if used to satisfy judgement)

51
Q

What is a protective order in civil procedure, and what is required for it?

A

An order limiting discovery of materials.
Must certify that attempted to resolve discovery dispute with opposing party before seeking court help.

52
Q

When are sanctions allowed regarding Discovery?

A

Only if the party violated a court order.

53
Q

When can a plaintiff automatically dismiss a claim?

A

Any time before defendant serves an answer or MSJ.

54
Q

When does a plaintiff needs court permission to dismiss a claim?

A

If defendant has answered or filed a motion.

55
Q

what does a plaintiff recover in a default judgement?

A

Only what was in the complaint.

56
Q

What are the 4 requirements for a clerk to enter default judgement?

A

D has not responded at all.
Claim is for money damages only.
P gives an affidavit of sum owed.
D is not a minor or incompetent.

57
Q

What does the judge review for a Rule 12b motion (Fail to state a claim)? When can it be brought?

A

Only the complaint.
Before D files answer.

58
Q

What does a judge review for a Rule 12c motion (Judgement on the pleadings)? When can it be brought?

A

All pleadings.
After D files answer.

59
Q

What does the court review for a motion for summary judgment?

A

Whole record of admissible evidence

60
Q

What happens if a party rejects a settlement offer and then ultimately obtains judgement less favorable than the settlement offer?

A

The party must pay costs incurred by the offering party after the offer was made minus attorney fees.

61
Q

What does the 7th Amendment guarantee?

A

Right to a jury trial for actions at law, but not at equity.

62
Q

How many preemptory strikes does each side get?

A

3

63
Q

Preemptory strikes cannot be used for what 2 reasons?

A

Race
Gender

64
Q

What can a court do if a jury returns a general verdict with interrogatories, and the answers are consistent but go against the verdict?

A

Order a new trial,
Direct further deliberations,
Enter judgement consistent with the answers, regardless.

65
Q

What can a court do if a jury returns a general verdict with interrogatories, and the answers are inconsistent?

A

Order a new trial,
Direct further deliberations.

66
Q

What are the 3 requirements for a renewed motion for judgement as a matter of law (RJMOL/judgement notwithstanding the verdict)?

A

There is insufficient evidence for a reasonable jury to have reached the verdict,
JMOL was made during trial,
RJMOL made on same grounds as JMOL

67
Q

What is the standard for a remittitur?

A

Jury award shocks the conscience. But diversity cases must use the state standard.

68
Q

Is additir allowed?

A

Not in federal courts. Sometimes in state court if agreed by parties.

69
Q

What 3 motions can set aside a judgement or order within a reasonable time less than 1 year?

A

Mistake
New evidence
Fraud

70
Q

What 3 motions can set aside a judgement or order within any reasonable time.

A

Judgement is void
Judgement satisfied or discharged
Any reason justifying relief.

71
Q

What 3 requirements are there to set aside a judgement based on new evidence?

A

Evidence existed at time of trial
evidence would change the result
Party made diligent efforts to discover at trial.

72
Q

What is the standard of review for questions of law?

A

De novo

73
Q

What is the standard of review for questions of fact decided by a jury?

A

Reasonableness

74
Q

What is the standard of review for questions of fact decided by judge?

A

Clearly erroneous

75
Q

What is the standard of review for discretionary judgements?

A

Abuse of discretion

76
Q

When will a court enter final judgment on part of a case if it has multiple claims or parties?

A

If it finds there is no just reason for delay.

77
Q

What kinds of appeals do not fall under the final judgement rule?

A

Injunctions
class action certifications
Orders involving debatable questions of controlling law.

78
Q

How to get Claim Preclusion (res judicata)?

A

Same P against same D.
Same transaction or occurrence.
Final judgement on the merits of original claim.

79
Q

How to get Issue Preclusion (collateral estoppel?

A

Final judgement on the merits with same issue actually litigated and essential to the judgement.
Asserted against actual party to the previous case.

80
Q

What is offensive issue preclusion, and when can it be used?

A

It’s when P wants to preclude an issue D lost against someone else in previous trial.
Can only be allowed if deemed fair.

81
Q

What are the 4 factors to determine if offensive issue preclusion is fair?

A

Was there a full and fair opportunity to litigate the issue before? Could party foresee multiple suits being filed? Could asserting party have joined prior trial? There are no inconsistent judgements.

82
Q

Can a defendant implead a 3rd party simply to deny all liability and impute it onto the 3rd party?

A

No…the impleader must claim derivative liability.

83
Q

When amending a complaint that will relate back, the amendment must…

A

Involve the same transaction or occurrence as the original claim.

84
Q

JMOL, RJMOL, and SJ are viewed by the judge how?

A

In the light most favorable to the non-moving party.

85
Q

Appellate courts are not required to reverse or grant appeals if the claimed error was…?

A

Harmless-didn’t affect the outcome of the case.

Bar Prep (11 decks)

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