Civil Procedure Flashcards
Motions to amend
Are to be “freely given when justice so requires.”
Relate back rule 15c
For statute of limitations purposes, proposed claims may be considered to “relate back” to the date of the original pleading in which the claim was made under Rule 15(c).
Amending as a matter of course
A P may amend the complaint once as a matter of course (without court intervention) no later than 21 days after service of the answer.
Rule 26(f) conference
At a Rule 26(f) conference, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan. The parties then must submit a proposed discovery plan to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the cour
Summary judgment
The court may not decide disputed facts issues on a motion for summary judgment; if there is a genuinely disputed material change (meaning a dispute backed by evidence on both sides of the issue), the case must go to trial.
Federal Rule 4
provides that summons and complaint may be served on an individual other than an infant or incompetent pursuant to the law of the state in which the district court is located. Notwithstanding, the state provision must be constitutional; i.e., it must be reasonably calculated to give the defendant notice of the action.
Removal and deadline
Under 28 U.S.C. section 1441(a), a defendant can remove an action that could have originally been brought by the P in the federal courts. However, removal must be sought within 30 days after receipt by or service on that defendant of the initial pleadings or summons, or, if the case is not initially removable, within 30 days of the case becoming removable.
What venue is picked whenever a case is removed
When a case is removed from state court to federal court, venue is set in the federal district court that embraces the state court in which the action was pending.
Insufficient process vs. Insufficient service of process
Insufficient process refers to defects in the documents and their content whereas insufficient service of process refers to the manner in which the documents were presented, delivered and/or served to the defendant.
Appeal to Supreme Court
Supreme Court jurisdiction extends to final judgements rendered by the highest court of a state in which a decision could be had. These judgments may be reviewed by the Supreme Court by certiorari where a right is claimed under the federal Constitution.
When can an execution on a judgement be done
Absent a court order, no execution on judgements is allowed for 30 days after entry except for injections or receiverships, which are not held up unless otherwise ordered by a court
Erie Doctrine
Federal Rule of Evidence 302, which follows the Erie doctrine requiring the application of substantive state law, provides that application of state law is appropriate only when the presumption operates on substantive element of a claim or defense.
Jury must be unanimous
In federal civil cases, a verdict must be unanimous unless the parties agree to the contrary.
Preemption of federal procedural law
Under the Erie doctrine, although the federal court generally applies the substantive law of estate in which it is sitting when a stat law-based claim is brought in federal court based on diversity of citizenship and a specific federal statute or a Federal Rule of Civil Procedure applies, the federal court must apply federal procedural law as long as the federal rule is rationally deemed to be procedural and does not abridge, enlarge, or modify any substantive rights.
For claim preclusion to apply:
i) the earlier judgment must be valid, final judgement on the merits; ii) the cases must be brought by the same claimant against the same defendant; and iii) the same cause of action must be involved in the later suit
An entry of default may be set aside for
“good cause shown”
A state court is least likely to take judicial notice on…
Most state courts will not take judicial notice of the law of a foreign count.
Motion to sanction based on Rule 11
A party who believes that his opponent has presented a pleading in violation of Rule 11 certification requirements may serve a motion for sanctions on the party. If the party does not withdraw or correct the matter within 21 days, the moving party may then file the motion for sanctions with the court.
