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July 2017 BAR > civil procedure > Flashcards

civil procedure Flashcards

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1
Q

what is the minimum contacts test?

A
  1. contact
  2. relatedness
  3. fairness
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2
Q

what is is the test under contact?

A
  1. Purposeful availment: did D reach out to forum state

2. Foreseeability: is it foreseeable that D could be sued here

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3
Q

what is the relatedness test?

A

did the claim arise from D’s contact with the forum?

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4
Q

whats the difference between specific pj and general pj?

A
  1. general pj is not based on D’s contact with forum

2. specific pj is based on D’s contact with forum

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5
Q

how do we tell if there is general pj?

A
  1. if d is domiciled in the state

for coporation its where incorporate and principal place of business

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6
Q

when do we use the fairness test?

A

for specific jurisdiction

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7
Q

what is the fairness test?

A

we must balance

  1. d’s interest; must be put at a serious disadvantage (wealth not relative)
  2. states interest
  3. p’s interest
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8
Q

what is the constitutional test for pj?

A
  1. contact (purposeful availment, forseeability)
  2. relatedness (specific or general pj)
  3. fairness (Ds v. states v. P’s interestS)
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9
Q

what is subject matter jurisdiction?

A

can the federal court hear the case?

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10
Q

what cases can states hear?

A

generally anything except federal patent infringement, bankruptcy, some federal securities, and antitrust claims.

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11
Q

what two types of cases can the federal government hear?

A
  1. diversity of citizenship (or alienage)

2. federal question

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12
Q

what are the two requirements for diversity of citizenship?

A
  1. complete diversity, citizens from different states or alienage
  2. the amount in controversy exceeds $75,000
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13
Q

can a person have more than one domicile at a time?

A

NO

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14
Q

How do we establish a new domicile?

A
  1. physical presence

2. intent to make a permanent home

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15
Q

when do we test for diversity?

A

when case is filed?

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16
Q

is D.C. considered a state in regards to diversity?

A

yes

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17
Q

how do we determine citizenship of a corporation?

A
  1. every state where incorporated

2. PPB (nerve center) where it coordinates, controls activity

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18
Q

how do we determine citizenship of a partnership or LLC?

A

all of its member

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19
Q

citizenship of decedents, minors, incompetents?

A

we dont use representative, but citizenship of decedents, minors, incompetents

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20
Q

in addition to complete diversity, what is the other requirement?

A

amount in controversey must exceed $75,000

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21
Q

are costs included in the amount in controversy?

A

no, neither interest

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22
Q

does it matter how much the plaintiff actually wins?

A

NO, but if under $75,000 P may have to pay costs

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23
Q

can we aggregate P’s unrelated claims?

A

yes

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24
Q

for joint claims we use what for amount in controversy?

A

the total amount

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25
Q

what cases can the federal court decline to hear?

A
  1. divorce
  2. alimony
  3. child support
  4. probate
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26
Q

what is a federal question case?

A

when P is enforcing a federal right aka arises under federal law

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27
Q

do we need to test each claim to see if it meets the smj requirements?

A

yes

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28
Q

if a claim does not meet smj, what happens?

A

you can invoke supplemental jurisdiction

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29
Q

what is the test for supplemental jurisdiction?

A

whether they share a common nucleus of operative fact

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30
Q

what is the exception for supplemental jurisdiction?

A

if its a diversity case brought by plaintiff

unless there is 2 plaintiffs.

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31
Q

does the court have to grant supplemental jurisdiction?

A

no they cannot

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32
Q

what is removal?

A

when D removes state case to federal court

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33
Q

who can remove?

A

only D

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34
Q

When must a D remove?

A

30 days after service of provess, all D’s who have been served must remove

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35
Q

what cases can be removed?

A

cases that meet

smj or fq

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36
Q

what are the exceptions to the removal?

A

diversity cases
D is a citizen of the forum state (instate)
D cannot remove after year

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37
Q

where does the removal have to be?

A

the same district as the state case.

38
Q

how many days does the P have to remand?

A

30 days for non smj related

anytime if court lacks smj

39
Q

what is the eerie doctrine?

A
  1. is there a federal law on point that conflicts with state law? if yes apply fed law due to supremacy clause.
  2. if no, apply state law if it is substantive? issues that are clearly substantive are -
    statute of limitations
    elements of a claim or defense
    conflict
  3. if not clearly substantive, must determine using balance test.
    a. outcome determinative
    b. balance of interest
    avoid forum shippoing
40
Q

what is venue?

A

venue tells us exactly what court we can bring it in

41
Q

where is venue proper?

A

where all D’s reside or where substantial part of the calim arose

42
Q

where does a human reside?

A

where domiciled

43
Q

where does a business reside for purposes of venue?

A

where subject to PJ

44
Q

where we can transfer venue?

A

proper venue plus + pj

45
Q

is transfer of venue mandatory?

A

no discriminatory

46
Q

what factors do we have to weigh in transfer of venue?

A

balance of public and private factors

47
Q

do courts usually honor forum selection clauses?

A

yup

48
Q

what is forum non conveniens?

A

theres a better court more suited, we dismiss or stay

49
Q

when is forum non conveniens rejected?

A

when P is resident of the present forum.

50
Q

How do give notice to the D he is about to be sued?

A

service of process of the (1) summons and (2) complaint

51
Q

who can serve process?

A

anyone over 18

52
Q

what are the three methods of service?

A
  1. personal service anywhere
  2. substitute service at D’s usual abode on someone of suitable age and descretion and who resides there (doesnt have to be related)
  3. service on the D’s agent
53
Q

what method of service is preferred in federal court?

A

no preference

54
Q

what is the significance of waiver?

A

if D returns waiver form, has 60 days to answer. if he doesnt respond, he has to pay costs of service.

55
Q

how many days do u have to respond to waiver?

A

30 days

56
Q

how many days do you have to respond to interrogatories?

A

30 days, unless mailed then u have 33

57
Q

what is in a complaint?

A
  1. subject matter jurisdiction
  2. short and plain statement of claim (facts supporting a plausible claim)
  3. relief sought
58
Q

what has to be pleaded with more particularity and specificity?

A
  1. fraud
  2. mistake
  3. special damages
59
Q

how long do you have to respond to a complaint?

A

21 days, if not there is default

60
Q

how does a D respond to a complaint?

A
  1. motion

2. answer

61
Q

if you waived service how long do you have to respond to complaint?

A

60 days.

62
Q

what are the 12b defenses?

A

12(b)

(1) lack of subject matter jurisdiction
(2) lack of PJ
(3) improper venue
(4) improper process
(5) improper service of process
(6) failure to state a claim
(7) failure to join a indispensible party

63
Q

what 12b defenses do you lose if you dont raise them in your answer?

A

12(b)(2)-(5)

64
Q

in responding to allegations of complaint?

A

1) admit
2) deny
3) lack info to admit or deny

65
Q

if you fail to deny an allegation in a complaint what happens?

A

its deemed admitted, except for damages

66
Q

what is a counterclaim?

A

a claim against an opposing party.

67
Q

what are two different types of counterclaims?

A

compulsory and permissive

68
Q

what is a compulsory counterclaim?

A

arises from same T/O as P’s claim

69
Q

what is a cross claim?

A

a claim against a coparty. Must arise from the same T/O as the underlying action.

70
Q

what is the plaintiffs right to amend?

A

once 21 days after D serves answer or 12 b response

71
Q

what is the D’s right to amend?

A

once 21 days after serving of serving his answer.

72
Q

if there is no right to amend, what happens?

A

if justice so requires

73
Q

amendment after the statute of relations has run?

A

relates backs, if same conduct, transaction, or occurense

74
Q

what are the requirements to change a defendant after the statute has run?

A
  1. same T/O
  2. Party knew that he was one who shouldve been sued within 90 days of service
  3. Knows but for a mistake he wouldve been named originally.
75
Q

what is rule 11?

A

when answering lawyer signs and certifies that

  1. not improper purpose
  2. warranted by law
  3. factual contentions are supported by evidence
76
Q

what is the purpose of a rule 11 punishment?

A

to deter not punish. no monetary awarded to other party.

77
Q

if the other party violates rule 11, can you make a motion for sanctions immediately?

A

No, must serve them and then they have a 21 safe harbor period to avoid sanctions.

78
Q

what are the initial disclosures during discovery that are required?

A
  1. identities of persons who will support your claim
  2. documents and things that will support your claims
  3. computation of monetary relief
  4. insurance coverage
79
Q

what happens if a party fails to identify someone or documents they were required to identify?

A

the party cannot use that witness in the case unless substantially justified or harmless

80
Q

what is an expert witness?

A

a witness who because of his specialty or skill or training is giving an opinion.

81
Q

Must the party disclose the expert witness?

A

yes the identity and written report by EW

Opinion, bases, facts used to form the opinions, EW’s qualifications, how much EW is being paid.

82
Q

what is the farthest a person can required to travel to have her deposition taken?

A

100 miles

83
Q

whats the limit on depositions?

A

10, no longer than a day of 7 hours, not more thane once.

84
Q

What are interrogatories?

A

written questions, to be answered under oath

85
Q

to whom can you send interrogatories?

A

only parties

86
Q

what is the maximum amount of interrogatories allowed?

A

25

87
Q

what are the requirements to get a court ordered medical exam?

A
  1. good cause

2. health is in question

88
Q

who can be subjected to a medical exam?

A

only party’s or someone under legal control or custody

89
Q

who chooses the licensed person to perform the exam?

A

the one seeling the order

90
Q

what is the scope of discovery?

A

anything that is relevant and proportional to the needs of this case
reasonably calculated to lead to admissible information

91
Q

what is work product?

A

material prepared in anticipation of litigation

92
Q

when is there a qualified work product?

A
  1. substantial need

2. not otherwise available

July 2017 BAR (13 decks)

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