Civil Procedure Flashcards
What are the 4 ways most state statutes grant personal jurisdiction?
Service of process, domicile, consent, and long-arm
What are the 3 tests for determining the constitutionality of personal jurisdiction?
Minimum contacts, relatedness, and fairness.
What 2 things constitute minimum contacts?
Purposeful availment and Foreseeability
What 4 kinds of cases will federal courts never hear?
Divorce, alimony, child custody, and probate
Where are unincorporated businesses domiciled?
All states where any partner or member is a citizen.
What is the standard for establishing the amount in controversy for a diversity case?
Good faith allegation
Where is FQJ established?
In a well-pleaded complaint.
What is the magic question to determine FQJ?
Is the plaintiff trying to enforce a federal right?
What are the 4 most common kinds of cases that always fall under federal question jurisdiction?
Bankruptcy
Antitrust
Postal Matters
Patent, copyright, trademark
What is the main requirement for a court to have supplemental jurisdiction over an additional claim?
There must be a ‘common nucleus of operative fact’ between the two claims.
What are the 3 reasons a court might refuse a proper supplemental claim?
Original SMJ claim is dismissed early.
There’s a novel/complex state issue.
Supp. claim substantially dominates over original claim.
Can plaintiff’s use supplement jurisdiction?
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.
When is removal of a state case to federal court proper?
When a case could have originally been filed in federal court as long as the case was not filed more than 1 year ago.
Who can remove a case to federal court?
Only a defendant if all defendants agree.
Assuming all requirements for removal are met, what are the 2 restrictions?
Cannot remove if already submitted a permissive counterclaim.
Cannot remove if original case was brought in defendant’s own state.
What are the 4 requirements of Notice to remove a case to federal court?
Contain grounds for removal.
Signature.
Copies of case documents.
Sent to all parties and the state court.
Regarding Erie, if there is no federal law on point that conflicts with state law, what are the 3 remaining factors to analyze?
Outcome determinative
Balance of interests
Forum shopping avoidance
What 4 areas of law are ALWAYS considered substantive for Erie purposes?
Elements of claims or defenses.
Statutes of limitation and tolling.
Choice of law rules.
New trial standards due to jury award decision.
What are the 2 main ways to have venue, and what is the 1 fallback if neither main way works?
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.
How is residency determined for Venue purposes for businesses?
They reside in any state where they are subject to personal jurisdiction.
Where can a case’s venue be transferred to?
Any venue which would have been proper in the original filing, or any venue where all parties consent.
How can a court respond to venue transfer if original venue was proper?
It may order transfer based on the interest of justice and convenience of the parties, or it can refuse.
How can a court respond to venue transfer if original venue was improper?
It may transfer to a proper venue or dismiss the case.
How does choice of law work for cases where venue was transferred?
New venue applies choice of law rules from original venue unless original venue was improper.
What happens if a case is filed in a venue against a forum selection clause?
Case must be transferred to proper venue unless there are compelling public factors not to transfer.
Who may serve process?
Any non-party at least 18 years old.
What are the 4 methods for serving process?
Personally serve defendant.
Serve housemate of D of suitable age at residence.
Serve D’s authorized agent.
Any method allowed under state law.
What are the 4 factors to get a preliminary injunction?
Irreparable injury
Reasonable likelihood of success on merits.
Balance of hardships.
Public interest.
What are the 3 requirements in a Complaint?
Statement of jurisdiction.
Statement of claim.
Demand for relief sought.
What is the standard for pleading a Complaint?
Plausibility
What 3 kinds of cases requires more specificity than the plausibility standard for a Complaint?
Fraud
Mistake
Special damages
What 2 things need to be in an Answer?
Response to allegations
Affirmative defenses
What 4 Rule 12 motions must be made in first response, otherwise they are waived?
Lack of PJ
Improper Venue
Insufficient process
Insufficient service of process
What is a compulsory counterclaim, and when must it be raised?
A claim by a D against the P that arises from the same transaction or occurrence.
It is required in defendant’s Answer.
What is a permissive counterclaim?
A claim by a D against P that does not arise from the same transaction or occurrence.
What is a crossclaim?
A claim by a co-party against a co-party when the claim arose from the same transaction or occurrence as the case claim.
When can one amend a pleading if it’s been longer than 21 days since service of process?
With written consent from adverse party,
or if court grants permission when justice requires.
What is a variance and when is it allowed?
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.
What are the 3 things that Rule 11 certification indicates to the court?
Filing is proper, not frivolous, and has evidentiary support.
What is permissive joinder?
When a plaintiff seeks to join a co-plaintiff, with their permission, or co-defendant whether or not they want to.
What are the 2 requirements for permissive joinder?
Same transaction or occurrence
Common question of law or fact
What is Impleader?
When a defendant joins a non-party who may also be liable.
What is Intervention?
When a non-party seeks to join a pending suit either as a co-P or co-D.
When are the 2 times Intervention is a right?
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.
When are the 3 times Intervention is permissive, but not a right?
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.
What are the 4 required elements to certify a class action class?
Numerosity- joinder impracticable
Commonality-questions common to all
Typicality-claims/defenses typical for class
Adequacy-Representative adequate for class
What 3 things must the court do when certifying a class for class action?
Define the class
Define the claims, issues and defenses
Appoint class counsel
When is a class action class certification appealable?
Immediately, but appellate court has discretion to review.
What 2 main things are discussed at the mandatory meet and confer?
Claims, defenses, and settlements
Develop discovery plan
What 3 things must be disclosed in the initial disclosure?
Sources of discoverable information (witnesses and documents).
Damages (computation)
Insurance (if used to satisfy judgement)
What is a protective order in civil procedure, and what is required for it?
An order limiting discovery of materials.
Must certify that attempted to resolve discovery dispute with opposing party before seeking court help.
When are sanctions allowed regarding Discovery?
Only if the party violated a court order.
When can a plaintiff automatically dismiss a claim?
Any time before defendant serves an answer or MSJ.
When does a plaintiff needs court permission to dismiss a claim?
If defendant has answered or filed a motion.
what does a plaintiff recover in a default judgement?
Only what was in the complaint.
What are the 4 requirements for a clerk to enter default judgement?
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.
What does the judge review for a Rule 12b motion (Fail to state a claim)? When can it be brought?
Only the complaint.
Before D files answer.
What does a judge review for a Rule 12c motion (Judgement on the pleadings)? When can it be brought?
All pleadings.
After D files answer.
What does the court review for a motion for summary judgment?
Whole record of admissible evidence
What happens if a party rejects a settlement offer and then ultimately obtains judgement less favorable than the settlement offer?
The party must pay costs incurred by the offering party after the offer was made minus attorney fees.
What does the 7th Amendment guarantee?
Right to a jury trial for actions at law, but not at equity.
How many preemptory strikes does each side get?
3
Preemptory strikes cannot be used for what 2 reasons?
Race
Gender
What can a court do if a jury returns a general verdict with interrogatories, and the answers are consistent but go against the verdict?
Order a new trial,
Direct further deliberations,
Enter judgement consistent with the answers, regardless.
What can a court do if a jury returns a general verdict with interrogatories, and the answers are inconsistent?
Order a new trial,
Direct further deliberations.
What are the 3 requirements for a renewed motion for judgement as a matter of law (RJMOL/judgement notwithstanding the verdict)?
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
What is the standard for a remittitur?
Jury award shocks the conscience. But diversity cases must use the state standard.
Is additir allowed?
Not in federal courts. Sometimes in state court if agreed by parties.
What 3 motions can set aside a judgement or order within a reasonable time less than 1 year?
Mistake
New evidence
Fraud
What 3 motions can set aside a judgement or order within any reasonable time.
Judgement is void
Judgement satisfied or discharged
Any reason justifying relief.
What 3 requirements are there to set aside a judgement based on new evidence?
Evidence existed at time of trial
evidence would change the result
Party made diligent efforts to discover at trial.
What is the standard of review for questions of law?
De novo
What is the standard of review for questions of fact decided by a jury?
Reasonableness
What is the standard of review for questions of fact decided by judge?
Clearly erroneous
What is the standard of review for discretionary judgements?
Abuse of discretion
When will a court enter final judgment on part of a case if it has multiple claims or parties?
If it finds there is no just reason for delay.
What kinds of appeals do not fall under the final judgement rule?
Injunctions
class action certifications
Orders involving debatable questions of controlling law.
How to get Claim Preclusion (res judicata)?
Same P against same D.
Same transaction or occurrence.
Final judgement on the merits of original claim.
How to get Issue Preclusion (collateral estoppel?
Final judgement on the merits with same issue actually litigated and essential to the judgement.
Asserted against actual party to the previous case.
What is offensive issue preclusion, and when can it be used?
It’s when P wants to preclude an issue D lost against someone else in previous trial.
Can only be allowed if deemed fair.
What are the 4 factors to determine if offensive issue preclusion is fair?
full and fair opportunity?
foresee multiple suits?
Joined prior trial?
No inconsistent judgments.
Can a defendant implead a 3rd party simply to deny all liability and impute it onto the 3rd party?
No…the impleader must claim derivative liability.
When amending a complaint that will relate back, the amendment must…
Involve the same transaction or occurrence as the original claim.
JMOL, RJMOL, and SJ are viewed by the judge how?
In the light most favorable to the non-moving party.
Appellate courts are not required to reverse or grant appeals if the claimed error was…?
Harmless-didn’t affect the outcome of the case.
