Civil Procedure Flashcards
Federal question jurisdiction exists only when an issue of federal law is presented in which filing?
Only the plaintiff’s well pleaded complaint.
Can federal question jurisdiction be established by potential defenses?
No.
Can multiple plaintiffs aggregate claims against the same defendant to meet the required amount for diversity jurisdiction?
Only when the plaintiffs share a a common or undivided interest.
If there is a common nucleus of operative fact shared by multiple plaintiffs, what is required for supplemental jurisdiction over claims that that the court does not otherwise have SMJX?
Subject matter jurisdiction over the original claim, ie diversity already exists, or federal question already exists.
What is another phrase for common nucleus of operative facts?
“Same factual circumstances” or “same case or controversy”
What are the only two circumstances where the “bulge provision” provides service of process on a party within 100 miles of the forum court even if state law would not otherwise permit such service?
Third-party defendants joined under Rule 14 or a required party joined under Rule 19.
If a defendent is neither domiciled nor present nor causes harm in a state, even if he visits that state regularly, is he subject to PJX there?
No.
Is a new trial mandatory or discretionary on an excessive verdict?
Discretionary on a variety of reasons, including excessive verdict.
What is required of an action for subject matter jurisdiction to exist in an action based on state law?
The action must satisfy both the amount in controversy requirement and the diversity requirement.
Other than the principal place of business and state of incorporation, where is a corporation a citizen?
The insured’s state when the insurer is sued in a direct action.
A claim under permissive joinder (Rule 20) with complete diversity still requires what, in the absence of a federal question?
Each claim to be greater than $75,000. Even if one plaintiff’s permissive claim is above 75K, the other plaintiff’s need to be above 75K too.
When you see a statute about service of process on defendants passing through, what should you do?
Read for limitations on service WHILE passing through - not ban of service in general.
When a federal statute grants a nonparty the right to sue to defend the constitutionality of a state statute what is that called?
Intervention as of right
What is the duty to produce an insurance agreement in discovery?
Unless otherwise agreed by stipulation or ordered by the court, each party must provide the other parties for inspection and copying, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
What is the time limit for taking one of the interlocutory appeals as of right?
30 days
In diversity cases, what is NOT precluded by supplemental jurisdiction?
Claims by existing defendants against additional persons joined as necessary parties under Rule 19.
In cases based solely on diversity, supplemental jurisdiction ___ permitted with respect to either intervention as of right or permissive intervention.
Is not.
What type of claim must be supported by an independent jurisdictional basis?
Permissive counterclaim.
When can a district court not exercise jurisdiction over additional claims that arise out of the same nucleus of operative fact?
When the addition of a party defeats complete diversity.
What should a court do if state and federal law conflicts?
The district court must ask whether a valid federal statute or Federal Rule covers the disputed issue.
Before applying a Federal Rule that is on point, what must the court do?
Ask whether the Federal Rule abridges, enlarges, or modifies any substantive right.
When is a reply made to a defendant’s answer?
Only when the plaintiff is ordered to do so by the court.
A plaintiff is deemed to ___ any allegations in the defendant’s answer if not ordered to reply.
deny
T/F if a defendant fails to include lack of personal jurisdiction in its answer it is waived forever?
F, the defendant gets one more chance through amending his pleading once as a matter of course within 21 days after serving it.
What is the only way a court may order a party to pay the opposing party’s attorney’s fees?
Upon motion of one of the parties. If not demanded in a motion, the court will not grant attorney’s fees.
What is required for joinder of defendants to be proper?
Any right to relief must arise out of the same transaction, occurrence, or series of transactions or occurrences.
What is a test tip to see if joinder is improper?
Look for “unrelated” transactions. If unrelated, joinder is improper.
What is the time limit for impleading a third party?
A defendant may implead a third party at any time after the complaint has been filed by serving a summons and third-party complaint on the third party, but must get court permission if outside of 14 days of serving his anseer to the plaintiff’s complaint.
Give an example of when a court does not have diversity jurisdiction over a thirdparty complaint but, does have supplemental jurisdiction
When a defendant sues his partner, from a different state (destroying diversity) for contribution.
What can inconsistent deposition testimony containing be used for?
Depositions may be used by a party to impeach the testimony of the deponent as a witness OR for any other purpose permitted by the Federal Rules of Evidence.
If a plaintiff fails to prosecute his case and, in response to a defendant’s motion, the court dismisses the action, what is the effect?
The dismissal is with prejudice and operates as an adjudication on the merits.
Can jurors be dismissed to arrive at a specific number of jurors?
No. They can only be dismissed for good cause, such as illness, family emergency, or misconduct.
What is the juror’s general duty to participate?
A juror must participate in the verdict unless excused for good cause.
Is a stipulation to less than 6 jurors, by the parties, allowable?
Yes. Rule 49 specifically provides that parties may stipulate to a jury of fewer than six members.
When may judgment as a matter of law be sought by either party?
At the close of the plaintiff’s presentation of its case to the jury.
When may the court grant a motion for judgment as a matter of law?
Once a party has been fully heard on an issue at a jury trial
Why can a clerical error not be corrected by the court after an appeal?
Because it is in the appellate court’s jurisdiciton alone at that point, and cannot be corrected without leave of the appellate court.
Is a dismissal without prejudice subject to immediate appeal?
No.
A dismissal without prejudice is not final on the merits, so not immediately appeal-able.
An appellate court may hear an immediate appeal of a certification decision rendered by the district court. However, ______
an appellate court is not required to hear the appeal.
When must a petition for permission to appeal be filed?
Within 14 days of the entry of the district court’s order.
What is the time frame in which a judgment or order certified under Rule 54(b) generally be appealed?
Within 30 days.
What is the time frame for a notice for appeal?
30 days.
If a court of appeals permits an appeal of an interlocutory order, what is the effect on the district court proceedings?
The proceedings in the district court are stayed pending the appeal if the district court OR the court of appeals so orders (either court can order stay).
