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Civil Procedure Flashcards

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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 are the 2 types of personal jurisdiction created through a defendant’s Relatedness to the contacts or claims?

A

Specific-Claim arises from contacts with state.

General-Defendant is ‘at-home’ in the state.

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5
Q

What are the 3 factors in determining Fairness of personal jurisdiction?

A

Convenience for Defendant
Plaintiff’s interest
State’s interest

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6
Q

What are the 3 ways a defendant can consent to personal jurisdiction?

A

Forum selection clause
Waiving any objection
Appointing an agent in the state

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7
Q

What are the 3 exceptions to personal service even if already served?

A

Fraud
Force
Served while responding to a subpoena

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8
Q

What are the 4 types of Subject Matter Jurisdiction?

A

Diversity, federal question, supplemental, and removal

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9
Q

What is subject matter jurisdiction?

A

The court’s authority to hear a certain claim.

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10
Q

What is personal jurisdiction?

A

The court’s authority over an individual.

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11
Q

What is diversity jurisdiction?

A

SMJ over citizens of different states or a citizen of 1 state and a citizen of a foreign country.

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12
Q

What is the amount in controversy required for diversity jurisdiction?

A

More than $75000 excluding interest and costs.

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13
Q

What is ‘complete diversity’?

A

Every plaintiff must be a citizen of a different state than every defendant.

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14
Q

When is diversity citizenship established?

A

At the time of filing the complaint.

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15
Q

What 4 kinds of cases with federal courts never hear?

A

Divorce, alimony, child custody, and probate

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16
Q

Where is the 1 place an individual person can be domiciled?

A

Where they are present and intend to remain.

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17
Q

Where are corporations domiciled?

A

Every state where incorporated and the state where the principle place of business is.

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18
Q

Where are unincorporated businesses domiciled?

A

All states where any partner or member is a citizen.

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19
Q

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

A

Good faith allegation

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20
Q

How does aggregating claims work to meet the minimum amount in controversy for diversity cases?

A

1 plaintiff can aggregate all claims against 1 defendant even if the claims aren’t related. Multiple plaintiffs can aggregate against 1 defendant if their claims are an undivided interest.

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21
Q

What is federal question SMJ?

A

SMJ over claims that arise under federal law.

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22
Q

Where is FQJ established?

A

In a well-pleaded complaint.

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23
Q

What is the magic question to determine FQJ?

A

Is the plaintiff trying to enforce a federal right?

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24
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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25
Q

What is supplemental jurisdiction?

A

Allows a court to have SMJ over an additional claim that would not normally have SMJ by itself.

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26
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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27
Q

What does ‘common nucleus of operative fact’ mean?

A

It arises from the same transaction or occurrence.

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28
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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29
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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30
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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31
Q

Who can remove a case to federal court?

A

Only a defendant if all defendants agree.

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32
Q

Where does a removed case get removed to?

A

To the federal district embracing the state court where the case was originally filed.

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33
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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34
Q

What are the 4 requirements of Notice to remand 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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35
Q

What is the purpose of the Erie Doctrine?

A

To determine whether to apply state or federal law in a case. If the law is substantive, apply state law. If procedural, apply federal law.

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36
Q

What is the first question to ask under an Erie analysis?

A

Is there a valid federal law that is on point and directly conflicts with state law? If yes, apply federal law.

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37
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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38
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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39
Q

What is venue?

A

Determines the proper federal district court to bring a case.

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40
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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41
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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42
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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43
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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44
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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45
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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46
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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47
Q

What is forum non conveniens?

A

When there is a more appropriate forum but the case cannot be transferred there…usually a foreign forum.

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48
Q

What are the 2 possible court actions for forum non conveniens?

A

Dismiss the case for plaintiff to file elsewhere.
Stay the case if there is no adequate alternative.

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49
Q

What 2 things are required with service of process?

A

The summons
Copy of the complaint

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50
Q

Who may serve process?

A

Any non-party at least 18 years old.

51
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.

52
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.

53
Q

When can one get a temporary restraining order?

A

When necessary to prevent immediate, irreparable injury.

54
Q

Are hearings required for injunctions and TROs?

A

Required for injunctions.
Not required for TROs.

55
Q

Is notice to defendant required for TROs?

A

Not if plaintiff provides specific facts showing immediate and irreparable injury will result before defendant can be heard, and they certify in writing efforts to give notice.

56
Q

What are the 3 requirements in a Complaint?

A

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

57
Q

What is the standard for pleading a Complaint?

A

Plausibility

58
Q

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

A

Fraud
Mistake
Special damages

59
Q

What 2 things need to be in an Answer?

A

Response to allegations
Affirmative defenses

60
Q

What are the 3 ways a defendant can respond to allegations in the Answer?

A

Admit
Deny
Lack sufficient info to admit or deny.

61
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

62
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.

63
Q

What is a permissive counterclaim?

A

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

64
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.

65
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.

66
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.

67
Q

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

A

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

68
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.

69
Q

What are the 2 requirements for permissive joinder?

A

Same transaction or occurrence
Common question of law or fact

70
Q

What is Impleader?

A

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

71
Q

What is Intervention?

A

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

72
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.

73
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.

74
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

75
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

76
Q

When is a class action class certification appealable?

A

Immediately, but appellate court has discretion to review.

77
Q

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

A

Claims, defenses, and settlements
Develop discovery plan

78
Q

What 3 elements determine if material is discoverable?

A

It’s non-privileged
Relevant
Proportional to needs of the case

79
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)

80
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.

81
Q

What is a motion to compel?

A

An order compelling disclosure or discovery.

82
Q

When are sanctions allowed regarding Discovery?

A

Only if the party violated a court order.

83
Q

When can a plaintiff automatically dismiss a claim?

A

Any time before defendant serves an answer or MSJ.

84
Q

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

A

If defendant has answered or filed a motion.

85
Q

what does a plaintiff recover in a default judgement?

A

Only what was in the complaint.

86
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.

87
Q

Is a hearing for the defendant required for default judgement?

A

Only if D has appeared at some point, in which case, only the judge can enter default judgement.

88
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.

89
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.

90
Q

What are the 2 requirements for a Rule 56 Summary Judgement?

A

No genuine issue of material fact.
Entitled to judgement as a matter of law.

91
Q

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

A

Whole record of admissible evidence

92
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.

93
Q

What does the 7th Amendment guarantee?

A

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

94
Q

How many preemptory strikes does each side get?

A

3

95
Q

Preemptory strikes cannot be used for what 2 reasons?

A

Race
Gender

96
Q

What are the 3 kinds of verdicts used by a court?

A

General-find for P or D
Special-Make factual findings
General w/interrogatories-Combo

97
Q

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

A

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

98
Q

When is it appropriate to grant judgement as a matter of law (JMOL/directed verdict)?

A

When there is insufficient evidence for jurors to disagree on an issue.

99
Q

When is it appropriate to grant a renewed motion for judgement as a matter of law (RJMOL/judgement notwithstanding the verdict)?

A

When there is insufficient evidence for a reasonable jury to have reached the verdict, but only if JMOL was motioned earlier in the case.

100
Q

When can a JMOL motion be made?

A

At the close of opposing party’s evidence.

101
Q

What is remittitur?

A

When a jury awards too high of damages and it needs to be lowered.

102
Q

What are the 2 ways a court can handle remittitur?

A

Order a new trial.
Plaintiff agree to take less than awarded.

103
Q

What is the standard for a remittitur?

A

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

104
Q

Is additir allowed?

A

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

105
Q

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

A

Mistake
New evidence
Fraud

106
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.

107
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.

108
Q

What is the standard of review for questions of law?

A

De novo

109
Q

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

A

Reasonableness

110
Q

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

A

Clearly erroneous

111
Q

What is the standard of review for discretionary judgements?

A

Abuse of discretion

112
Q

What is the final judgement rule?

A

Cannot appeal a case until the lower court has decided all merits of the case, minus some exception.

113
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.

114
Q

What is Res Judicata?

A

Claim preclusion-cannot relitigate the same claim.

115
Q

What are the 3 requirements for Claim Preclusion?

A

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

116
Q

What is Collateral Estoppel?

A

Issue Preclusion-Cannot relitigate the same issue.

117
Q

What are the 4 requirements for Issue Preclusion?

A

Final judgement on the merits.
Same issue actually litigated.
Issue was essential to the judgement.
Asserted against actual party to the previous case.

118
Q

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

A

It’s when a D wants to preclude an issue that P lost against someone else in previous trial.
Can be used if P had a full chance to litigate the issue before.

119
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.

120
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.

121
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.

122
Q

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

A

Involve the same transaction or occurrence as the original claim.

123
Q
A

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