Brainscape's Knowledge GenomeTM

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


See full index

Bar Prep > Civil Procedure > Flashcards

Civil Procedure Flashcards

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

What are the two ways that a person can get a federal court to hear a case?

A

The federal court must have Personal Jurisdiction and subject matter jurisdiction.

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

What is personal jurisdiction?

A

The courts have jurisdiction of the person

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

What is the Basis of in personam jurisdiction? PJ is clearly constitutional if D is:

A
  1. Domiciled in the forum
  2. Consents or
  3. Is voluntarily present in the forum when served with process.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

If the D is not domiciled, consents, or is voluntarily present in the forum when served with process, then what factors must be present for Personam jurisdiction?

A
  1. Contact (must result from purposeful availment and must be foreseeable that D could get sued in the forum)
  2. Relatedness (Specific v. General PJ)
    Fairness: whether jurisdiction would be fair (only in specific PJ cases)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is specific PJ?

A

where the claim arises from D’s contact with the forum

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is general PJ?

A

When D is “at home” in the forum state.

Defendant (individual)-is domiciled in the forum state/ engages in systematic and continuous activity in the forum state.

Corporation: Where incorporated and Principal Place of Business (PPB)

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

What are the 3 factors that the court must asses in specific PJ cases?

A
  1. Burden on the D and witness-
    o Even if it is hard for D to travel and their witnesses to travel to the forum, the forum is constitutionally okay UNLESS D can show that it puts him at a severe disadvantage in the litigation.
  2. State’s Interest
    o The forum state may want to provide a courtroom for its citizens, who are allegedly being harmed by out-of-staters.
  3. Plaintiff’s interest
    o Maybe P wants to sue at home
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

In Rem and Quasi In Rem

A

• Power is not over the D but over the property of D. D left property in the forum state. Property must be attached by the court at the outset of the case but to be constitutional the D’s contacts must meet the same constitutional test above.

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

What is Subject Matter Jurisdiction (SMJ)?

A

The courts power over the case

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

What type of jurisdiction do state courts have?

A

General Jurisdiction- they may hear any kind of case

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

What is the exception for general jurisdiction for state courts?

A

Cases arising under a few federal laws: Bankruptcy, patent and trademark, some antitrust cases

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

What type of jurisdiction do Federal Courts have?

A

Limited Subject Matter Jurisdiction

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

What are the two cases that federal Courts may hear?

A
  1. Diversity Jurisdiction

2. Federal Question

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

What are the two requirements of diversity jurisdiction?

A
  1. The case is between citizens of different states or
    between a citizen of a state and of a different country AND
  2. The amount in controversy EXCEEDS $75,000
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Is a alien v. an alien diverse?

A

No, May not be between two aliens

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

amount in controversy EXCEEDS $75,000- Can P claim any amount?

A

Whatever the P claims is okay UNLESS it is clear to a legal certainty that she will not recover that amount.

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

What happens if the P is awarded less than $75,000?

A

A P that wins less than 75,000 may have to pay the D’s litigation cost. (NOT ATTORNEY’S FEES)

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

What are the aggregation rules for diversity jurisdiction?

A
  1. One P and one D- may aggregate factually unrelated claims. (no limit)
  2. For joint claims (joint tortfeasors) find the total: one claim against multiple D’s → look for the word joint.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What happens if a P is suing under Diversity for equitable relief/Injunction?

A

P sues D for injunction to tear down part of his house that blocks p’s view.
Two Tests:
1. Plaintiff’s Viewpoint: does the blocked view decrease the value of P’s property by more than $75,000?
2. Defendant’s Viewpoint: Would it cost more than $75,000 to comply with the injunction?

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

Federal Courts May NOT hear what types of cases?

A

o Divorce
o Alimony
o Child Custody and
o Probate an Estate

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

What is Federal Question Jurisdiction?

A

The claim in P’s complaint Arises under FEDERAL LAW

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

Well Pleaded Complaint Rule

A

It is not enough that a federal issue is raised by the complaint. The claim itself MUST arise under federal law

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

What is Supplemental Jurisdiction?

A

Once a claim is in Federal court additional claims may be asserted in that claim
Each claim must be tested to see if it involves diversity or federal question.
If it does not meet these then the court may still hear the claim if it invokes supplemental jurisdiction.

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

What are the two steps for supplemental jurisdiction?

A
  1. The claim we want to get into federal court must share a “common nucleus of operative fact with the claim that invoked federal subject matter jurisdiction.
  2. Limitation- In a diversity case the Plaintiff may not use supplemental jurisdiction to overcome diversity. - P trying to sue a co-citizen
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is the summary of Summary Judgment?

A

A non-federal, non-diversity claim can be heard in federal court if it meets “the test” UNLESS it is:
• Asserted by a Plaintiff
• In a diversity of citizenship case AND
• Asserted against a citizen of the same state as the Plaintiff

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

When does the Court have discretion to decline SJ?

A

 If the underlying claim in the case is dismissed early
 Complex
 State law issues would predominate in the case

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

What is removal?

A

Removal transfers the case from a state trial court to a federal trial court.

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

When may a Defendant remove?

A

o The D must remove within 30 days of service (not filing) of the first paper that shows the case is removable.

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

May a P remove?

A

No, a P may never remove!

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Who must join in the removal?

A

All Defendant’s who have been served with process

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

What cases may be removed?

A

GR: any case that meets the requirements for diversity or FQ

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

If removing a diversity case, what are the exceptions?

A

 No removal if and D is a citizen of the forum (instate rule) AND
 No removal if more than ONE YEAR after the case was filed in state court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Where may a course be removed?

A

May only remove to a federal court within the district that embraces the state court where the case was filed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

How do we remove?

A

D files notice of removal in Federal Court- states grounds of removal then
2. D attaches all documents that were served on her in state action. D serves a copy of the “notice of removal” on adverse parties. Then D files a copy of the “notice of removal” in state court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

What happens if D wants to remove but the original amount did not exceed $75,000?

A

D may allege that it is more than $75,000 and the Fed. Ct. will hold a hearing where the D has the BOP to show by a preponderance of the evidence that the amount does exceed $75,000.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

If P thinks removal was improper for some other reason than lack of SMJ?

A

Must move to remand within 30 days after notice of removal is FILED

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

If P thinks removal was improper because the federal court lacks SMJ

A

May remand at anytime and court MUST remand for lack of SMJ

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

D removes a diversity case but there was no instate D.

A

Must move to remand within 30 days after the notice is filed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Erie Doctrine: when is it applicable?

A

Only applies to diversity of citizenship cases in federal court when Judge must decide on a particular issue, must she follow state or federal law?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

What is the rise Doctrine Analysis?

A

Step 1: Is there some federal law that is on point that directly conflicts with state law? If yes, apply fed. Law If no, go to step 2.
Step 2: If there is no federal law on point, the federal judge must apply state law if the issue to be determined is “substantive.”
Step 3: If there is no federal law on point and the issue is not one of the four above, the federal judge must determine whether the issue is “substantive.” -almost never tested!

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

What are four issues that are determined to be substantive for erie doctrine purposes? (Judge must apply state law)

A

 Elements of a claim or defense
 Statute of Limitations SOL
 Rules for tolling statutes of limitations, and
 Conflict (or choice) of law rules

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

What are the factors that the judge must consider when determining whether the issue is substantive?

A
  1. Outcome determinative: would applying or ignoring the state rule affect the outcome of the case?
     If so, it is probably a substantive rule, so apply state law.
  2. Balance of Interests: does either federal or state system have strong interest in having its rule applied?
  3. Avoid Forum Shopping: If the federal court ignores state law on this issue, will it cause parties to flock to federal court?
     If so, should probably apply state law.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Plaintiff may lay venue in ANY federal district where:

A
  1. ALL D’s reside or

2. Where a substantial part of the claim arose

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

What is the special rule regarding venue?

A

If ALL D’s reside in different districts of the same state: P can lay venue on the district in which any D resides.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

Where Do Defendants “Reside” for Venue Purposes?

A

o Person: In the district where he or she is domiciled

o Corporation: In all districts where subject to personal jurisdictions (PJ)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

Transfer of venue rules:

A

o A federal district may transfer the case to another federal court but May only transfer to a district where the case could have been filed.

**Meaning court transferred to must be proper venue and have PJ over the D. **

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

What is the exception to transfer of venue?

A

 THE COURT CAN TRANSFER TO ANY DISTRICT (even if improper) if all parties consent (unlikely that P will do so) and the court finds cause for the transfer.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

What are the two transfer statutes?

A
  1. If the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and on the interest of justice.
  2. If the original district is an improper venue, what may that court do? It may transfer in the interest of justice OR dismiss.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

What is Forum Non Conveniens

A

Like transfer, there is another court that is the center of gravity, that makes more sense than the present court. But here, the court does not transfer to the more convenient court.

o Almost NEVER granted if P is a citizen from the forum

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

Why would someone use Forum Non Conveniens?

A

Do it because you cannot transfer to another court because it is in a different judicial system (foreign country) so transfer is impossible!

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

How Do you establish a new domicile?

A

o Physical Presence there AND

o The intent to make that your permanent home

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

When do you test for diversity?

A

when case is filed

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
53
Q

Where is a corporation domiciled

A
  • Country or state of incorporation AND

* Country or state of PPB

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
54
Q

Where is a partnership domiciled

A

o Where all the partners are domiciled

• If general partnership- where the general and limited partners are located

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
55
Q

What is the citizenship of decedents, minors, or incompetents?

A

Where they are a citizen and or domiciled. Their representatives domicile does not matter.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
56
Q

D is entitled to notice that she has been sued. Usually, this consists of:

A

o (1) a summons (formal court notice of suit and time for response) AND
o (2) a copy of the complaint
• The two documents are called Process

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
57
Q

Who can serve Process?

A

Any non-party who is at least 18 years old

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
58
Q

How is process Served?

A
  1. Personal service
  2. Substituted Service
  3. Service on D’s agent:
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
59
Q

What is substituted service?

A

• (1) D’s usual abode
 Must not reside there every day of the year/ can be summer home
• (2) Serve someone of suitable age and discretion who resides there
 Does not have to be related to D

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
60
Q

Service on D’s agent

A

Process can be delivered to D’s agent. OK if receiving service is in the scope of agency. (corporations registered agent, managing agent, or officer)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
61
Q

What other methods may a person use for serving process?

A

may use other methods for serving process that are permitted by state law of the state where the federal court sits OR where service is made.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
62
Q

Waiver by Mail

A

Mail D a copy of the complaint and two copies of a waiver form with a prepaid means of returning the form (stamped envelope for sending it back to P). If D executes and mails waiver form to P within 30 days, D waives formal service of process.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
63
Q

What does P do when D mails back his waiver?

A

P then files the waiver in court and it is effective then.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
64
Q

What happens if D does not have good cause for failing to return the waiver form?

A

D MUST PAY COST OF SERVICE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
65
Q

Return of Service

A

The person who serves process must file a report with the court detailing how service was made. If the server was a civilian, the report is by affidavit (sworn statement, under oath).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
66
Q

Service of Other Documents: pleadings, answers, motions, discovery, etc.

A

o Delivered by mailing or delivering to attorney or pro se party.
o Get three extra days if mailed to you and require a response
o Email is okay, if other parties agree

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
67
Q

Complaint:

A

Filing the complaint commences the action

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
68
Q

What are the requirements of a complaint?

A
  1. Statement of grounds of SMJ
  2. Short and plain statement of the claim
  3. Demand for the relief sought
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
69
Q

What are the 3 matters that must be plead with particularity or specificity?

A
  • Fraud, ( big on bar exam)
  • Mistake and
  • Special Damages
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
70
Q

How may D challenge the complaint?

A

by filing a 12(b)(6)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
71
Q

What does D’s response to a complaint consist of?

A

May respond by answer or motion within 21 days of service of process.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
72
Q

How many days does a D have to respond to a complaint if he has waived service?

A

You get 60 days from when P mailed the form.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
73
Q

What are Motions?

A

they are not pleadings, they are requests for court order

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
74
Q

What are common issues of form -rarely tested

A

(1) Motion for more definite statement-pleading so vague D can’t frame a response
(2) Motion to strike, which is aimed at immaterial or scandalous things.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
75
Q

What are the 12(b) defenses

A

(1) lack of subject matter jurisdiction (SMJ)
(2) Lack of PJ
(3) Improper Venue
(4) Improper Process (problem with the paper)
(5) Improper service of process
(6) failure to state a claim
(7) failure to join and indispensable party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
76
Q

Which 12(b) defenses are waivable? (must be put in the 1st response (motion or answer) or else they are waived

A

12(b)(2), (3), (4), and (5)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
77
Q

What is the answer?

A

It is a pleading
Respond to allegations of a complaint by:
1. Admitting,
2. Denying,
3. Stating that you lack sufficient information to admit or deny

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
78
Q

What are the affirmative defenses that must be put in the answer or they are waived?

A

SOL, SOF, res judicata, self-defense, etc

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
79
Q

What is a counterclaim?

A

claim against an opposing party→ D against P

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
80
Q

When must a P respond with a counterclaim?

A

Once served the P must respond within 21 days

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
81
Q

What are the two types of counterclaims?

A
  1. Compulsory Counterclaims

2. Permissive Counterclaim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
82
Q

What is a compulsory counterclaim?

A

 Arises from the same T/O as P’s claim. UNLESS you have already filed the claim in another case, YOU MUST FILE THIS IN THE PENDING CASE, OR THE CLAIM IS WAIVED.

83
Q

What is a Permissive Counterclaim?

A

Does not arise from the same T/O as P’s claim. Permissive means you are not required to file it in this case.

84
Q

What is a crossclaim?

A

Claim against a co-party. It must arise from the same T/O as the underlying action. IT IS NOT COMPULSORY! You may assert it here or sue separately.

85
Q

What is the rule for adding additional claims once you file a counterclaim or crossclaim?

A

you can join an additional claim to it→ even if that claim has nothing to do with the others.

HOWEVER, the additional claim must invoke federal SMJ. So you assess whether it invokes diversity or FQ.
o If neither is met try supplemental jurisdiction.

86
Q

When may a P amend his pleadings?

A
  1. P has a right to amend once within 21 days after D serves her first rule 12 response.
  2. P has a right to amend within 21 days of her answer
87
Q

If there is no right to amend then what?

A

Seek leave from the court and it will be granted if justice so requires (factors court looks to):
 Delay
 Prejudice and
 Futility of amendment

88
Q

What happens if The evidence at trial does not match what was pleaded

A

If that happens and D does not object then P may move to amend the complaint at or after trial to conform to the evidence.

If D does object then the information will be inadmissible

89
Q

Amendment after the SOL has run (relation back)

A
  1. Amend to join a new claim: Amended pleadings “relate back” if they concern the same conduct, transaction, or occurrence as the original pleading.
  2. Amend to change a defendant after the statute has run
90
Q

Amendment to change a defendant after the statute has run will relate back if:

A

 It concerns the same conduct, transaction, or occurrence as the original pleading
 The new party knew of this case within 120 days of its filing; and
 She also knew that, but for a mistake, she would have been named originally

91
Q

Supplemental Pleadings

A

Things that occur after the pleading was filed

92
Q

Rule 11

A

Applies to all documents except discovery

93
Q

When the lawyer or pro se party signs documents you are certifying that to the best of her knowledge and belief, after reasonable inquiry;

A
  • (1) The paper is not for an improper purpose, and
  • (2) The legal contentions are warranted by law (or nonfrivolous argument for law change) and
  • (3) The factual contentions and denials of factual contentions have evidentiary support (or are likely to further investigation)
94
Q

What happens If there is a violation of Rule 11?

A

sanctions may be ordered against a party, attorney, or firm.

95
Q

What happens If the other party violates Rule 11?

A

you cannot make a motion for sanctions immediately; instead, you serve the motion on other parties but CANNOT FILE IT. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed.

96
Q

May the court raise Rule 11 problems on its own?

A

The court may raise Rule 11 problems on its own. → Court issues an “order to show cause” why sanctions should not be imposed. The court must give a chance to be heard before imposing a sanction on anyone.

97
Q

For initial disclosures, unless a court order or stipulation of parties says otherwise, each party must disclose within…

A

14 days of the Rule 26(f) conference.

98
Q

What are the Initial Disclosures?

A
  1. Identity of persons who have discoverable info that the disclosing party may use to support their claims or defenses.
  2. Documents and things that you may use to support your claims or defenses. You may produce copies or a description of these things.
  3. computation of monetary relief and documents/ESI supporting it
  4. Insurance coverage
99
Q

For expert witnesses, what must a part generally disclose?

A

Identity and written report prepared by expert witness.

100
Q

When must a party give detailed information about trial evidence, including the identity of witnesses to testify live or by deposition.

A

No later than 30 days before trial

101
Q

What are the different discovery tools available to a party?

A
  1. Depositions
  2. Interrogatories
  3. Request for production
  4. Medical Exam
  5. Request for Admission
102
Q

What are the limitations on depositions?

A
  1. May be taken of parties and non-parties
  2. cannot take more than 10 depositions or depose the same person twice without court approval or stipulation.
  3. Deposition cannot exceed one day of 7 hours UNLESS court orders or parties stipulate.
103
Q

What are the limitations to Interrogations?

A
  1. Can only be sent to parties
  2. Party has 30 days to respond with her answer or objection
  3. Must respond to all questions in which the answers are reasonably available to you.
  4. Maximum number of questions that can be sent is 25.
104
Q

What are the limitations for the Request for production?

A
  1. Parties and non-parties

2. Person must respond within 30 days of service, stating that the material will be produced or asserting objections.

105
Q

What are the limitations for a medical exam?

A
  1. Parties or someone in party’s custody or legal control
  2. Must get court order
  3. Party seeking the order chooses the licensed person to perform the exam
  4. If the party requests and retains the report, he waives any privilege he might have concerning testimony about all examinations of that medical condition.
106
Q

What must be shown to get a court order for a medical exam?

A

to get order, must show:

  1. that the person’s health is in actual controversy and
  2. “good cause”
107
Q

What are the limitations for Request for admission?

A
  1. Parties only
  2. If you fail to specifically deny within 30 days it is deemed to be admitted.
  3. May respond that you don’t know if you made reasonable inquiry and cannot find enough to admit or deny.
108
Q

Does a party have a duty to supplement if circumstances change?

A

yes, after a party responds to discovery and circumstances change to the point that the information would be misleading then a party has a duty to supplement.

109
Q

When it comes to discovery, what information is relevant and what does relevant mean?

A

Anything relevant to a claim or defense →relevant includes things that are “reasonably calculated to lead to the discovery of admissible evidence.

110
Q

When does the court have discretion to limit discovery?

A

even if evidence is relevant, the court has the discretion to limit discovery if:

  1. the request is cumulative or
  2. if the burden outweighs the importance of the issue.
111
Q

Are materials prepared in anticipation of litigation protected from discovery? What is this called?

A

Yes, this is considered privileged under the work product doctrine.

112
Q

How would one assert a privilege or work product doctrine?

A

Must claim the protection expressly and describe the materials in detail.

113
Q

What happens if a party inadvertently produces privileged or protected material to the other party?

A

Party should notify other party promptly to avoid a waiver. Other party must then return, sequester, or destroy it pending decision by the court about whether there has been a waiver.

114
Q

What are the three ways courts get involved in discovery disputes?

A
  1. Protective Order
  2. Partial Response by other party to discovery request
  3. No response by other party to discovery request
115
Q

When a party seeks sanctions what must they certify?

A

that she tried in good faith to get the info without court involvement.

116
Q

When may a party seek a protective order?

A

If the responding party thinks a discovery request subjects it to annoyance, embarrassment, undue burden, or expense.

117
Q

When a party responds with a partial response what may the other party do?

A

move for an order compelling the party to answer the unanswered questions, plus costs (including attorney’s fees) of bringing motion.
• If the party violates the order compelling them to answer then you get RAMBO sanctions plus costs (and attorney’s fees for bringing motion) and could be held in contempt for violating a court order → except no contempt for refusal to submit to medical exam.

118
Q

When a party fails to respond with a partial response what may the other party do?

A

• RAMBO plus costs (and attorney’s fees for the motion). No need to get an order compelling answers. GO directly to RAMBO:

119
Q

What are RAMBO SANCTIONS?

A
  • Establishment Order (establishes facts as true)
  • Strike pleadings of the disobedient party (as to issues re the discovery)
  • Disallow evidence from the disobedient party (as to issues re the discovery)
  • Dismiss plaintiff’s case (if bad faith shown)
  • Enter default judgment against defendant (if bad faith shown)
120
Q

If a party fails to produce ESI because it was lost in the good faith routine operation of an electronic info system there will be sanctions only in what circumstances?

A

only in exceptional circumstances.

121
Q

If P is planning the case and wants to have multiple P’s or multiple D’s what factors must be met?

A
  1. Arise from the same T/O and

2. Raise at least one common question

122
Q

What are the steps in determining if the court might force a nonparty (absentee) to join in the case?

A

Step 1: Who is necessary?
Step 2: Is joinder feasible?
Step 3: What if joinder cannot be done?

123
Q

How do you determine if a party is necessary?

A

o Without absentee (A), the court cannot accord complete relief among existing parties (worried about multiple suits); or
o A’s interest may be harmed if he is not joined (practical harm); or (most likely to see on bar exam)
o A claims an interest that subjects a party (usually D) to a risk of multiple obligations.

124
Q

When is joinder feasible?

A

o Feasible if:
• (1) There is PJ over you and
• (2) Joining you will not mess up diversity jurisdiction (the court determines whether you would come in as a P or a D to see if bringing you in will mess up diversity)

125
Q

What happens if joinder cannot be done?

A

The court must do one of two things:
• (1) Proceed without you or
• (2) Dismiss the entire case – call the absentee indispensible

126
Q

Impleader

A

D is bringing in someone new. The new party is the third-party defendant.
o This claim is usually for indemnity (TPD has to cover the full claim) or contribution (TPD has to cover a pro-rata portion of the claim.

127
Q

What are the steps for imploding the TPD in the pending case?

A

o (1) D files a third party complaint naming the TPD; and
o (2) Serve process on the TPD. (So must have PJ over TPD)
• There is a right to implead within 14 days of serving your answer. After that, you need court permission.

128
Q

After TPD is joined, may P assert a claim against TPD?

A

yes, if the claim arises from the same T/O as the underlying case.

129
Q

After TPD is joined may the TPD assert a claim against P?

A

yes, if the claim arises from the same T/O as the underlying case.

130
Q

What is intervention?

A

• Non-party asserts herself in the claim as a P or D

131
Q

What are the two types of intervention?

A

o Intervention of Right

o Permissive Intervention

132
Q

What is intervention of right?

A
  • The absentee’s interest would be harmed if she is not joined and
  • Her interest is not adequately represented now
133
Q

What is permissive intervention?

A

Absentee’s claim or defense in the pending case have at least one common question

134
Q

What are the initial requirements for Class Actions?

A

o Numerosity- too many class members for practible joinder
o Commonality: some issue in common to all members so resolution will assist everyone
o Typicality: rep to feel the same as other members
o Rep adequate to bring claim

135
Q

What are the three types of cases that a class action can fit in?

A
  1. Prejudice class action: necessary to avoid harm or prejudice.
  2. Class seeks injunction or declaratory relief:
  3. Common question(s) predominate: Ex: mass tort- bus crash (common question-negligence)
136
Q

For a diversity class action whose citizenship does the court consider?

A

Citizenship of the representative and the claim still must exceed $75,000.

137
Q

What is the Burden on the applicant for preliminary injunction?

A

o He is likely to suffer irreparable harm if the injunction is not issued
o He is likely to win on the merits of the underlying case;
o The balance of hardship favors him (threatened harm to applicant outweighs harm to the other party if the injunction is issued) and;
o The injunction is in the public interest

138
Q

Does a party have a right to injunction?

A

No, it is always discretionary

139
Q

If the court grants the injunction, what must the applicant do?

A

the applicant must post a bond

140
Q

What are the requirements for a preliminary injunction?

A

o PI must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued.
o In granting or denying injunction the court must make specific findings of fact and separate conclusions of law.

141
Q

• Is an order granting or denying a PI immediately appealable?

A

Yes, it is.

142
Q

May a court grant a preliminary injunction ex parte?

A

No, PI may never be granted ex parte

143
Q

Can a court grant a temporary restraining order (TRO)

A

Yes, in limited circumstances.

144
Q

Ex Parte for TRO is proper only if:

A
  • Applicant files a paper Under oath clearly showing that if the TRO is not issued he will suffer immediate and irreparable harm if he must wait until the other side is heard.
  • Applicants lawyer certifies in writing his efforts to give oral or written notice to D or D’s lawyer (or why such notice should not be required under the circumstances)
145
Q

If the court issues the TRO, the applicant must

A

Post a bond (security) to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

146
Q

The TRO must state:

A
  1. its terms in specificity,
  2. describe in detail what D must do or refrain from doing, and
  3. state why it was issued, and why the threatened injury to P was irreparable.
147
Q

If the court issues the TRO…

A
  1. The oder must be served on D as soon as possible

2. the D may move to dissolve or modify the TRO

148
Q

How long is a TRO effective?

A

• TRO is effective for 14 days (or lesser time stated by the court). If applicant shows good cause before expiration, it can be extended for up to another 14 days but NO LONGER THAN THAT (28 days)

149
Q

When may a P withdraw a case?

A

P can make a motion for voluntary dismissal anytime.

150
Q

What does P have to file to dismiss/withdraw the case?

A

o P has a right to take a voluntary dismissal by filing a “notice of dismissal.”
But she must do so before the D serves an answer or motion for Summary Judgment.

151
Q

What happens if P files a timely notice of dismissal?

A

the case is dismissed without prejudice meaning P an refile the case
• May only do this once without prejudice

152
Q

What happens if D does not respond to the complaint within 21 days/60 days (if waiver) of being served.

A

Step 1: Try to get a default: P must move for default
• P must demonstrate that D failed to respod on time. Until default is entered, D can respond by motion or answer (even beyond 21 days)
• Entry of default= Cuts off D’s right to respond
o Does not entitle P to recover→must get a default judgment.

Step 2: Try to get a default judgment
 Clerk of Court can enter judgment if:
• D made no response at all
• The claim is for a sum certain in money
• The claimant gives an affidavit (sworn statement) if the sum owed; AND
• D is not a minor or incompetent
 If all 4 are not true→ P may apply to the court itself for default judgment. The judge will then hold a hearing and has discretion to enter judgment. D gets notice ONLY if he has appeared in the case

153
Q

What are D’s options in the fact of default?

A

D may move to have the court set aside a default or default judgment by showing good cause and must show a viable defense.

154
Q

What does the court look at when ruling on a 12(b)(6) motion?

A

o Court looks only at the face of the complaint→ NO evidence
o The facts alleged must support a plausible claim. The judge uses her experience and common sense to see if they do.

155
Q

Party moving for Summary Judgment must show:

A

o There is no genuine dispute of fact and
o That she is entitled to judgment as a matter of law
o If moving party meets the above the judge still has discretion→ not a right

156
Q

What does the court look at in Summary Judgment?

A

Court looks at the evidence in this case

 Court views the evidence in the light most favorable to the non-moving party

157
Q

When must a party move for Summary Judgment?

A

 Any party may move for this no later than 30 days of close of discovery.

158
Q

Rule 26(f) conference

A

Unless court order says otherwise, at least 21 days before scheduling conference the parties must meet and confer.

159
Q

What happens if there is a case that involves both law and equity? (jury trial)

A

 Jury decides the facts underlying the damages claim but not the equity claim.
• Try jury issues first then try other issues with judge

160
Q

What are the Two kinds of challenges to jurors?

A
  1. For Cause:
     No limit to how many motions to strike/remove for cause can be made
     Must be a reason
  2. Preemptory: do not need a reason or cause
     There are only three per side (court may give you more)
     May only be used in a race and general manner because jury selection is state action
161
Q

What is the minimum and maximum number of jurors in federal civil court?

A

o Minimum of 6 jurors maximum 12 in federal civil court

o Unanimous vote is needed in civil cases

162
Q

What are the rules pertaining to objecting to jury instructions?

A

• If objections are not made before instructions then a party may not raise the objection on appeal. HOWEVER,
• EXCEPTION:
 If a party did not object timely, a court can consider a jury instruction if it contained plain error that effects substantial rights.

163
Q

What are the types of verdict forms that the judge may choose?

A
  1. General: This just says who wins and, if P wins, what the relief is.
  2. Special: the jury answers specific questions about the facts in dispute. The judge then reaches legal conclusions based on the facts found.
  3. General verdict with special interrogatories: the jury gives a general verdict but must also answer specific questions submitted to it. The questions ensure that the jury considered the important issues.
164
Q

Who enters judgment in a general verdict?

A

The clerk of Court enters the judgment

165
Q

Who enters judgment in aSpecial ir general verdict with special interrogatories?

A

The judge approves a judgment and the clerk enters it.

166
Q

What happens if the verdict shows that jury did not follow instructions or it is internally inconsistent?

A

no judgment is entered.

• The court can then instruct the jury to reconsider its answer or, if reconsideration won’t fix the problem, it can order a new trial.

167
Q

What happens to a verdict or what may a court do if there has been juror misconduct?

A

The court can set aside the verdict and order a new trial based upon EXTERNAL MATTERS!

Ex: jurors were bribed, or based the verdict on their investigation of matters outside the court instead of the evidence at trial

168
Q

What is a motion for judgment as a matter of law (JMOL)?

A

It applies in jury trial. If the judge grants JMOL, the case will not go to the jury- the judge simply rules for a side.

169
Q

What is a motion for judgment as a matter of law (JMOL) based upon?

A

evidence presented at trial. Judge would grant this because reasonable people could not disagree on the result.
 It is like summary judgment (where there was no dispute of material fact), except this comes up at trial instead of before trial.
 Court views the evidence in the light most favorable to the non-moving party.

170
Q

When may a party move for JMOL?

A

after the other side has been heard

171
Q

What is the renewed motion for judgment as a matter of law (RJMOL)?

A

SAME AS JMOL BUT COMES UP AFTER TRIAL

172
Q

What happens If RJMOL is granted?

A

the court enters judgment for the party that lost the jury verdict! As with JMOL, the court views the evidence in the light most favorable to the non-moving party.

173
Q

When must a Party move for RJMOL?

A

within 28 days after entry of judgment

174
Q

Absolute prerequisite to bringing RJMOL

A

you must have moved for the JMOL motion at the proper time in the trial.

175
Q

Motion for a new trial

A

Judgment is entered, but some error at trial requires that we should start over and have a new trial. Can be based on any (non-harmless) error that makes the judge think we should have a do-over.

176
Q

When may a party move for a new trial?

A

Party moves for this within 28 days after the judgment

177
Q

What may a party do if they would have been entitled to RJMOL but waived it by not moving for JMOL?

A

she may move for a new trial

178
Q

One ground for a new trial is that the jury’s damages figure is excessive or inadequate “shocks the conscience”–>what may a party do in this case?

A

either remittitur or additur

179
Q

What is remittitur?

A

 P suffered minor damage but jury awards excessive amount. Gives them the option of taking a lesser amount or risk having a new trial .

180
Q

What is additur?

A

 P suffered very serious harm but jury awarded a low amount- give D choice of paying greater amount of damages or risk having another trial.
• Unconstitutional in Federal Court ok in state court
o Violates the seventh amendment because that applies only in federal court.

181
Q

What is a motion for relief from order of judgment?

A

we ask the district court (trial court) to set aside an order or judgment it entered.

182
Q

When may a clerical error be corrected?

A

May be corrected at anytime on motion of court or any party.

183
Q

What is the timing in which a Court may relieve a party from a final judgment or order if mistake, excusable neglect or new evidence that could not have been discovered with due diligence:

A

Reasonable time not to exceed 1 year

184
Q

What is the timing in which a Court may relieve a party from a final judgment or order if fraud, misrepresentation, or other misconduct of an adverse party?

A

Reasonable time not to exceed one year.

185
Q

What is the timing in which a Court may relieve a party from a judgment that is void (no SMJ)?

A

Reasonable time (no maximum)

186
Q

What is the GR for final judgment Rule?

A

you can only appeal from final judgments. That means an ultimate decision by the trial court of the merits of the entire case.

187
Q

When must a party file a notice of appeal in the trial court?

A

within 30 days after entry of final judgment

188
Q

What are examples of a non-final judgment?

A
  • denial of Summary Judgment
  • Grant of a motion for new trial
  • Grant of a transfer the case to another district
  • Grant of a motion to remand to state court (Generally not appealable)
189
Q

What is an example of a final judgment?

A

Denial of a motion for new trial- must appeal within 30 days

190
Q

Generally, only final orders are reviewable. However, certain interlocutory orders are reviewable. What are those? (Not heavily tested)

A

• Interlocutory orders reviewable as a matter of right: orders granting, modifying, refusing preliminary or permanent injunctions.

191
Q

Review of a non-final order (Interlocutory Appeals Act) is discretionary if:

A

o (a) trial judge certifies that it involves a controlling issue of law
o (b) as to which there is substantial ground for difference of opinion and the
o (c) court of appeals agrees to hear it.

192
Q

What is the collateral order exception?

A

Appellate Court has discretion to hear ruling on an issue if it:
o (a) is distinct from the merits of the case,
o (b) involves an important legal question, and
o (c) is essentially unreviewable if parties must await a final judgment

193
Q

When it is alleged hat the trial court erred on a pure matter of law, the appellate court may substitute its judgment for that of the trial judge…what is this called?

A

De Novo Review

194
Q

In a non-jury jury trial when the district judge determines questions of fact, the court of appeals will affirm unless

A

Clearly erroneous

195
Q

In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless

A

reasonable people could not have made that finding.

196
Q

On discretionary matters (whether to grant a motion to amend pleadings, to allow permissive intervention, case management orders), the court of appeals will affirm unless

A

the district court abused its discretion

197
Q

Not every error (even an error of law) requires reversal on appeal. No reversal is required if:

A

the error is harmless

198
Q

What is Res Judicata (Claim Preclusion?

A

Once a final judgment on the merits has been rendered on a particular cause of action, plaintiff is barred from trying the same cause of action in a later lawsuit.

199
Q

Requirements of Res Judicata

A
  • (1) Case 1 and Case 2 were brought by the same claimant against the same defendant.
  • (2) Case 1 ended in a valid final judgment on the merits
  • (3) Case 1 and Case 2 asserted the same claim
200
Q

What is Issue Preclusion (Collateral Estoppel)?

A

Final judgment for the plaintiff or D is conclusive in a subsequent action on a different cause of action between the same parties (or others), as to issues ACTUALLY LITIGATED and essential to the judgment in the first action.

201
Q

Requirements of Issue Preclusion

A

 Case 1 ended in a valid, final judgment on the merits
 The same issue was actually litigated and determined in Case 1
 The issue was essential to judgment in Case 1. That means the finding on this issue is the basis for the judgment.
 Issue preclusion may only be used against somebody who was a party to Case 1 (or represented by a party in Case 1-like class action)

202
Q

 Who can issue preclusion be asserted?

A

Every court agrees that issue preclusion can be used by someone who was a part to Case 1
HOWEVER, when a non-party to Case 1 tries to use issue preclusion in Case 2 it is called non-mutual issue preclusion.

203
Q

Two ways non-mutual issue preclusion may Come up:

A
  1. Non-mutual defensive issue preclusion:
    the one using it was not a party to Case 1 and is D in Case 2)
     Okay if above factors met and person had a full chance to litigate.
  2. Non-mutual offensive issue preclusion:
    the one using it was not a party to Case 1 and is P in Case 2)
    • Most Courts and Federal will allow if it is not unfair:
     Person had a full chance to litigate in Case1.
     Person had an incentive to litigate strongly in Case 1
     You could not have joined easily in Case 1
     There are no inconsistent findings on this issue.

Bar Prep (11 decks)

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