Civil Procedure Flashcards
Names of witnesses are _____ protected by the work product doctrine.
never. Witness names are relevant to the claims and defenses of the parties and do not constitute work product, even if one party expended extraordinary time and money in identifying the witness.
A nonresident of the United States may be sued in
any judicial district.
A defending party may implied a nonparty if
the nonparty is or may be liable to the party for any part of a judgment that a plaintiff may recover against it.
A person is immune from “tag” jurisdiction if
they are in the state solely to be a witness at a judicial proceeding.
The Erie doctrine workflow is
(1) federal law or FRCP on point? apply if valid (FRCPs are always valid)
(2) If no federal law or FRCP on point, is the issue substantive or procedural? If substantive, apply state law, if procedural, apply federal law.
Some classic examples of “substantive” issues for Erie doctrine purposes are
(1) statutes of limitations
(2) rules for tolling statutes of limitations
(3) choice of law rules
(4) elements of a claim or defense
If an issue is not clearly substantive or procedural for Erie doctrine purposes, the three things a federal court looks at are
(1) outcome determinative test
(2) balance of the interests
(3) deter forum shopping
A case may not be removed on the basis of DIVERSITY jurisdiction more than _______ after it was ________ unless the plaintiff has _______.
one year; filed/commenced; acted in bad faith.
A defendant must file a notice of removal within _____ of receiving _______ that the case is or has become ______.
30 days; notice; removable.
**Watch out for an in-state defendant being dismissed that makes the case removable. The 30-day clock starts to run from the time that D gets notice of the dismissal, not from when D was originally served. This is still subject to the one-year limitation.
If a later served defendant initiates timely removal, an earlier served defendant ______ join in the removal.
may. This is true even if the earlier-served defendant’s time for removal has expired.
The time periods for rely may NEVER be extended for the following motions:
(1) renewed JMOL
(2) amend a judgment
(3) new trial
(4) relief from judgment
A motion for a new trial must be filed within _______ of the entry of ______.
28 days; entry of judgment.
A renewed JMOL must be filed within _______ of the entry of _______.
28 days; entry of judgment.
A temporary restraining order may be issued for a maximum period of ______.
14 days. (but they can be renewed)
The three requirements for a TRO are
(1) P states specific facts in an AFFIDAVIT or VERIFIED complaint that she will suffer IRREPARABLE harm
(2) P certifies in writing the efforts made to notify the adverse party and reasons why notice should not be required
(3) P provides security to pay for any damages incurred by the adverse party if the TRO was wrongful (post a bond)
A defendant who was formally served with process must file an answer within ______ after ______.
21 days; service.
A defendant who waives formal service must file an answer within _____ after the request for waiver was _______.
60 days; mailed to the defendant.
If a pre-answer motion is made and the court denies or postpones the motion, the default is that the responsive pleading must be filed within ______ after the court’s action.
14 days.
If the court grants a motion for a more definite statement, the answer is due within ______ after ___________.
14 days; service of the more definite complaint.
A pleading may be amended _____ within ________ of its _______.
once; 21 days; service.
If a pleading is one to which a response is required, it may be amended _____ within ______ after __________.
once; 21 days; service of the response.
Initial discovery disclosures must be made within _________ of the ________ conference.
14 days; Rule 26(f) scheduling.
The identity and report of an expert witness must be disclosed at least ________ before _______.
90 days; trial.
If expert testimony is intended solely to rebut another party’s disclosure of expert testimony, it must be disclosed within ________ after ___________.
30 days; disclosure of the evidence being rebutted.
A party must disclose witnesses she expects to call or will call at trial if the need arises at trial at least ________ before ______.
30 days; trial.
A party must disclose witnesses whose testimony will be presented by deposition an the pertinent portions of the depo transcripts at least ________ before ______.
30 days; trial.
A party must disclose a list of documents or exhibits she expects to offer or might offer if needed at least ________ before ______.
30 days; trial.
A party who does not object to the pretrial disclosures of deposition testimony or to the admissibility of documents or exhibits within _______ after the _______ has _______ those objections.
14 days; disclosure; waived.
**Except as to objections of relevance under FRE 402 or prejudice under FRE 403.
A party who has been served with a motion for sanction has ______ to withdraw or correct the matter with no penalty.
21 days. This is called Rule 11’s “safe harbor” provision. A party seeking sanctions MUST first allow the adverse party an opportunity to withdraw or correct.
Failure to demand a jury trial within _______ after the filing of __________ constitutes a ______.
14 days; the last pleading directed to a jury-triable issue; waiver by that party of any right to a jury trial
A voluntary dismissal by a plaintiff as a matter of RIGHT without PREJUDICE must be made before
defendant files an answer or motion for summary judgment.
A motion for summary judgment can be filed _________ up to ______ after the close of _______.
at any time; 30 days; discovery.
**If the motion is premature (i.e. a lot of discovery left to be done), the court can defer ruling on it.
A notice of appeal must be filed within ______ from the ________.
30 days; entry of the judgment appealed from.
If a motion for a new trial or renewed JMOL has been made, a notice of appeal can be filed within _______ from ___________.
30 days; entry of an order based on such post-trial motions.
**A notice of appeal filed during pendency of the post-trial motion WILL become effective on final disposition of the motion by the court.
The steps for analyzing personal jurisdiction are
(1) Long-arm
(2) Constitutionality
The steps for analyzing the constitutionality of personal jurisdiction are
(1) identify the contacts: (a) purposeful availment, (b) foreseeable that D could be haled into court?
(2) identify the type of jurisdiction: (a) specific or (b) general
(3) fairness: (a) burden on D and witnesses; (b) forum’s interest; (c) P’s interest
A corporation is “at home” in a forum and subject to general personal jurisdiction in
(1) every state in which it is incorporated; and
(2) the state in which it has its principal places of business
A corporation’s principal place of business is located where
the corporations directors and officers “direct and control” the corporation’s activities.
A judge will impose these type of sanctions as punishment for a party’s failure to comply with discovery rules
RAMBO sanctions:
• Establishment order (establish facts as true)
• Strike pleadings of disobedient party
• Disallow evidence from disobedient party
• Dismiss P’s case (if bad faith shown)
• Enter default judgment against P (if bad faith shown)
Amended pleadings relate back (treated as if filed on same date as original) if they concern
the same conduct, transaction or occurrence as original pleading
For supplemental jurisdiction to lie, the claim must have the same ________ as the original claim that invoked federal SMJ
a common nucleus of operative fact
Non-federal, non-diversity claim that shares common nucleus of operative fact w/ claim invoking federal SMJ can be heard in federal court UNLESS
Asserted by plaintiff
In diversity case
Against a co-citizen
Can a plaintiff remove to federal court if they are now a defendant on a counterclaim?
Nope. Never. Not a P.
Seriously, never.
Any case can be removed if it meets requirements for federal SMJ. Two exceptions are:
- If D is a citizen of the forum state, OR
2. It has been more than one year since case filed in state court
A D can remove to federal court more than one year after the case was filed in state court only if
Plaintiff acted in bad faith to prevent removal
A counterclaim is compulsory if it
arises from the same T/O as P’s original claim
A counterclaim is permissive if it
does NOT arise from same T/O as P’s original claim
A claim against co-party (crossclaim) MUST arise from
the same T/O
A variance is proper if
the evidence presented at trial does not match what was in the pleadings*
*D has right to object at trial and have evidence excluded. But if he fails to do so, P can present evidence and later move for variance to conform pleadings to evidence presented at trial
To change a defendant after statute has run, an amended pleading will relate back (i.e. be treated as if it was filed on same date as original) only if
(1) it’s same cause or T/O as original,
(2) new party knew of this case w/in 120 days of its filing, and
(3) knew that but for a mistake she would have been named originally.
Essentially, applies when P sued wrong defendant first but the correct defendant knew about it.
Many P’s against one or more D’s can bring claims in the same case as long as the claims:
o Arise from same T/O
o Raise at least one common question
A party is necessary if
(1) Without A, court cannot accord complete relief among existing parties (worried about multiple suits); OR
(2) A’s interest may be harmed if he is not joined (most typical on bar), or
(3) A claims interest that subjects a party (usually D) to risk of multiple obligations
Joinder is feasible if
(1) there is PJ over new party, and
(2) joining new party will not defeat diversity jdix
Joinder rules starting with “C” such as counterclaim and crossclaim are claims against
existing parties
Joinder rules starting with I involve claims against
new parties to the case
If D wants to shift his own liability to P to another party he should bring a
impleader claim*
*but note, he doesn’t have to. only compulsory claim is a compulsory counterclaim.
An impleader claim is usually seeking one of two things:
(1) indemnity from third-party defendant, or
(2) contribution
If D successfully impleads a party, that party becomes now known as a
third party defendant (3dPD)
Steps for impleading a third party defendant:
(1) D files third party complaint naming third party defendant, and
(2) serves process on the 3dPD (so PJ necessary)
After 3dPD is joined, plaintiff (can/cannot) assert claim against them, and 3dPD (can/cannot) assert claim against plaintiff
both can do either, as long as claims arise from same T/O
A nonparty can bring an intervention as of right it
interest may be harmed if she is not joined and she is not adequately represented now
A nonparty can bring a permissive intervention action if
A’s claim or defense and pending case have at least one common question*
*discretionary to court, but court will usually allow unless intervention will cause delay or prejudice to someone
To certify a class, must show these four elements:
(1) Numerosity,
(2) Commonality,
(3) Typicality, AND
(4) Representation adequate
Class actions must fit within one of three types:
(1) Prejudice: class treatment necessary to avoid harm either to class members or non-class party
(2) Injunction/Decl Judgment: Class seeks these remedies because D treated the class alike
(3) Damages: common questions predominate AND class action is superior method to handle dispute (ex: mass tort)*
*Type 3 Class: Damages are by far most popular on bar
In a Type 3 (damages) class, the court must notify members that they are in a class. The notice must contain three pieces of info
(1) that they can opt out
(2) they’ll be bound if they don’t, and
(3) they can enter separate appearance through counsel
Type 1 and 2 classes (do/don’t) require notice; Type 3 classes (do/don’t).
Type 1 and 2 DO NOT Type 3 (Damages) DOES
A class action will invoke diversity jurisdiction as long as
the representative is diverse from all defendants (and of course AiC exceeds $75k)
An order that maintains the status quo until trial is a
preliminary injunction
A court can issue a TRO ex parte only if
(1) Applicant files papers under oath clearly showing that if TRO is not issued she will suffer immediate and irreparable harm if she must wait until other side is hears, and
(2) applicant’s lawyer certifies in writing her efforts to give oral or written notice to D or D’s lawyer (or why such notice shouldn’t be required under circumstances)
A court can issue a preliminary injunction ex parte when
Trick question. NEVER.
The clerk of the court can enter a default judgment w/o judge’s involvement if
- D made no response at all
- Claim for certain sum of money
- Claimant gives affidavit of sum owed, AND
- D is not minor or incompetent
If a judge holds a hearing to determine default judgment, D gets notice only if
he has appeared in the case
The final pretrial conference order supersedes
the pleadings
If a case involves both law and equity, what does the jury decide?
Facts underlying damages claim but not equity claim
*no Seventh Amendment right to jury in suits at equity
Generally, if parties don’t object to jury instructions before jury charged they’ve waived argument on appeal unless
jury instruction contained plain error that effects substantial rights
Remittitur occurs when
court finds damage award is so large that it shocks the conscience, so it gives P option of new trial or reduced award
Additur occurs when
court finds damage award so low as to shock the conscience, so it gives D choice to pay greater damages or have new trial.*
*Additur is unconstitutional in federal court but valid in state court
A motion for relief from order or judgment will be granted if
the evidence could not have been discovered with due diligence in time to move for a new trial (i.e. within 28 days after judgment)
In non-jury trial, court of appeals will uphold questions of fact unless
findings clearly erroneous
In jury trial, court of appeals will uphold findings on questions of fact unless
reasonable people could not have made that finding
The content of jury instructions is revealed de novo, but a decision about whether to give a particular instruction is reviewed
for an abuse of discretion
If the parties in the subsequent action are the same (or in privity), Issue preclusion will apply if
(1) The issue is the same in both actions
(2) case 1 had a valid, final judgment on the merits of that issue,
(3) same issue actually litigated and determined in case 1
(4) Issue was essential to the judgement in case 1
Claim preclusion will apply if
(1) case 1 ended in valid final judgment on merits
(2) both parties must be the same (or in privity)
(3) Case 1 and 2 assert same claim (right to relief arising from a T/O)
By and against whom can issue preclusion be asserted?
- can ALWAYS be asserted by someone who was party to case 1 or represented; can SOMETIMES (depending on state) be asserted by someone not a party.
- can only be asserted against someone who was a party to case 1 or was represented by a party (e.g. via class action)
Timing issues (just tap)
D’s answer: 21 days after service
D’s answer after waiver of process: 60 days after waiver was MAILED
Responsive pleading after motion is denied: 14 days
Initial disclosures after rule 26(f) scheduling conference: 14 days
New trial, renewed JMOL: 28 days after entry of judgment
Expert identity and reports: 90 days before trial
Expert to rebut other expert: 30 days after first experts testimony is disclosed
Expected witnesses: 30 days before trial
Jury trial demand: within 14 days of last pleading on a jury triable issue
Objecting to docs and exhibits: within 14 days of disclosure, otherwise waiver except for relevance and prejudice
If the parties in the subsequent action are not the same, nonmutual issue preclusion will apply if
(1) The standard requirements for collateral estoppel are met and
(2) it would not be unfair or inequitable to apply collateral estoppel
**note on fairness: almost always fair when used defensively, very rarely fair when used offensively
