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Civil Procedure Flashcards

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1
Q

Personal jurisdiction is about the court’s power over who?

A

the parties

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2
Q

When determining if a court has personal jurisdiction over a party, what two things must be satisfied?

A
  1. State statute,

2. Constitution (Due Process)

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3
Q

What is the constitutional analysis for determining if a court has personal jurisdiction over a party?

A

Does the party have “such minimum contacts” with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice.

Three steps:

  1. contact
  2. Relatedness
  3. Fairness
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4
Q

For personal jurisdiction, what level of contact must be present?

A
  1. The contact must result from purposeful availment, and

2. Foreseeability (it must be foreseeable that the defendant would get sued in this forum)

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5
Q

For specific personal jurisdiction, Defendant’s contact with the forum state must be sufficiently _____________ with Plaintiff’s claim(s).

A

related

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6
Q

If a claim does not arise from the defendant’s contact with a forum state, a court may have general personal jurisdiction over the defendant if he is ___ ______ in the forum.

A

at home

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7
Q

Where is a person always “at home” for purposes of personal jurisdiction?

A

Where they are domiciled.

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8
Q

Where is a corporation domiciled?

A
  1. Where incorporated, and

2. Where it has its principal place of business.

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9
Q

Is fairness assessed in issues of general personal jurisdiction?

A

No - only relevant to specific personal jurisdiction

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10
Q

When assessing the fairness factor for personal jurisdiction, what factors are considered?

A
  1. Burden on the defendant and witnesses
  2. State’s interest
  3. Plaintiff’s interest
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11
Q

In assessing fairness for personal jurisdiction, when assessing the burden on defendant and witnesses, must the court determine this is the MOST convenient forum?

A

No. Even if it is difficult for the defendant or witnesses to travel to the forum, it is ok unless the Defendant can show it puts her at a severe disadvantage in the litigation.

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12
Q

What is constitutionally required for service of process?

A

Notice must be reasonably calculated under all the circumstances to apprise interested parties of the action.

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13
Q

What two documents does process consist of?

A
  1. Summons

2. Complaint

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14
Q

Who can serve process?

A

Any non party who is at least 18 years old.

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15
Q

If a defendant is served in the United States, within how long must service take place?

A

No more than 90 days after filing the complaint.

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16
Q

On an individual in the United States, how may process be served on an individual?

A
  1. Personal service,
  2. Substituted service (at defendant’s usual abode to someone of suitable age and discretion who resides there)
  3. Service on Defendant’s agent.
  4. State law methods.
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17
Q

How may process be served on a business or organization in the United States?

A
  1. Deliver process to an officer, managing agent, or general agent,
  2. State law methods
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18
Q

How may process be served on a minor or incompetent person in the United States?

A

Any method permitted by state law in the state where service is to be made.

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19
Q

How may process be served in a foreign country?

A

Any method allowed by international agreement, or, if there is no such agreement:

  1. As directed by an American Court,
  2. Method allowed by the foreign country’s laws (if reasonably calculated to give notice)
  3. Method directed by foreign official in response to a letter of request from the American Court (if reasonably calculated to give notice)
  4. Personal service in the foreign country (unless prohibited by its law)
  5. Mail sent by the clerk of the American court requiring signed receipt (unless prohibited by the foreign country’s laws)
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20
Q

How does a plaintiff request defendant waive service of process?

A

Plaintiff mails Defendant a notice and request to waive formal service, including a copy of the complaint and two copies of a waiver form, with a prepaid return envelope.

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21
Q

If a defendant waives service but fails to return the waiver form, then plaintiff has defendant served, if defendant did not have good cause for failing to return the waiver is there a penalty to defendant?

A

Yes - defendant must pay for service.

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22
Q

How is service proved?

A

The person who served process files a report with the court detailing how service was made. If the server was a civilian, the report is by affidavit.

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23
Q

Where may process be served?

A

Within the state in which the federal court sits.

It may be served outside the state if state law allows.

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24
Q

When is a defendant immune from service?

A

When defendant is present in the state to appear as a party, witness, or attorney in a different civil case.

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25
Q

How may other documents (besides the complaint) be served on a party?

A

By delivery or mail to the party’s attorney (or the party directly if they are pro se), or via email if the party agrees.

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26
Q

Does a party get a extra time to respond when a party serves by mail?

A

Yes, three days - service is deemed complete when mailed.

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27
Q

State court has general subject matter jurisdiction to hear any type of case, except which?

A
  1. Patent infringement,
  2. Bankruptcy,
  3. Cases where the United States is involved (e.g., fines, penalties, or forfeitures under the laws of the United States)
  4. Cases with consuls and vice-consuls as defendants,
  5. Anti-trust cases
  6. Admiralty cases
  7. Foreign state is a party
  8. Postal matters
  9. Internal Revenue
  10. Securities Exchange Act
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28
Q

Federal courts have jurisdiction over which two main types of cases?

A
  1. Diversity of citizenship

2. Federal question

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29
Q

What are the two requirements for diversity of citizenship cases?

A
  1. The cases is between citizens of different US states, or between a citizen of a US state and a citizen of a foreign country,
  2. The amount in controversy exceeds $75,000
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30
Q

For diversity jurisdiction, may a any plaintiff be a citizen of the same state as one of the defendants?

A

No - there must be complete diversity.

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31
Q

For a United States’ citizen, what is the state of her citizenship?

A

The US state where she is domiciled.

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32
Q

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

A

No.

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33
Q

How does a person establish a new domicile?

A
  1. Presence in a new place, and

2. Intent to make that home for the foreseeable future.

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34
Q

Where is a corporation a citizen of?

A

Every US state or country where it is incorporated and the ONE US state or country of its principal place of business.

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35
Q

Where is a corporation’s principal place of business?

A

Where its managers direct, coordinate, and control corporate activity.

“Nerve center”

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36
Q

Where is an unincorporated association a citizen of?

A

In the citizenship of all of its members.

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37
Q

In a limited partnership, to determine citizenship do you include the citizenships of both the general and limited partners?

A

yes.

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38
Q

What is the citizenship of a decedent, minor, or incompetent person?

A

Their citizenship - not the citizenship of their representative.

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39
Q

For diversity jurisdiction, may the amount in controversy be exactly $75,000?

A

No - must EXCEED $75,000

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40
Q

For diversity jurisdiction, a plaintiff must plead in ______ _________ that the amount in controversy exceeds $75,000.

A

good faith.

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41
Q

When may a plaintiff aggregate claims to reach the minimum amount in controversy for diversity jurisdiction?

A

Any SINGLE plaintiff may aggregate claims against any SINGLE defendant, or against JOINT tortfeasors.

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42
Q

What cases will a federal court refuse to hear, even if the elements of diversity jurisdiction are met?

A
  1. Divorce,
  2. Alimony,
  3. Child custody,
  4. Probate and estate
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43
Q

A federal court has federal question jurisdiction when Plaintiff’s complaint arises under _______ _________ ____.

A

under federal law.

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44
Q

In a federal question case, is the citizenship of the plaintiff or amount in controversy relevant?

A

No

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45
Q

Is it enough that some federal issue is raised by the complaint?

A

No - plaintiff’s claim itself must arise under federal law.

Ask - “Is plaintiff enforcing a federal right?”

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46
Q

Removal transfers a case from a _______ trial court to a __________ court.

A

state; federal

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47
Q

If removal of a case was improper, the federal court can __________ the case back to state court.

A

remand.

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48
Q

Who may remove a case to federal court?

A

defendants only

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49
Q

When may an appropriate party remove a case to federal court?

A

Within 30 days of service

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50
Q

What are two exceptions that apply when removing a case filed under diversity of citizenship?

A
  1. No removal if any defendant is a citizen of the forum, and
  2. No removal more than one year after the case was field in state court (UNLESS Plaintiff acted in bad faith to prevent removal)
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51
Q

What is the exception to the rule that no removal is permissible if a year has passed since complaint has been filed in state court?

A

A case becomes removable if Plaintiff voluntarily dismisses the claim against a defendant who would defeat diversity.

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52
Q

To which court may a defendant remove a case to?

A

The federal court “embracing” the state court where the case was filed.

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53
Q

How does a party remove a case to federal court?

A
  1. File a notice
  2. Attach all documents served on her in state court
  3. Serve copy of notice on Plaintiff
  4. file a copy of notice in state court
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54
Q

Supplemental jurisdiction gets claims into a case even though:

A

the claims do not meet diversity or FQ jurisdiction

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55
Q

For a court to have supplemental jurisdiction, the claims alleged by plaintiff must share a:

A

common nucleus of operative facts

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56
Q

For what claims does a court not have supplemental jurisdiction, even when there is a common nucleus of operative facts?

A

For claims brought by plaintiff’s in a case invoking diversity jurisdiction.

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57
Q

A non-federal, non-diversity claim may be heard in federal court if it arises under a common nucleus of operative facts unless it is…

A
  1. Asserted by a plaintiff,
  2. In a diversity of citizenship case, and
  3. If one plaintiff meets the diversity jurisdiction requirements against a defendant, and a second plaintiff has claims against the same defendant arises from the same transaction but does not meet the amount in controversy requirement, P2 may have supplemental jurisdiction (Hypo 5D).
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58
Q

If a plaintiff meet all of the requirements of supplemental jurisdiction, may the court decline it?

A

Yes - court has discretion if

  1. state law claim is complex,
  2. state issues would predominate the case, or
  3. federal claim is dismissed early in the case
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59
Q

What is the Eerie Doctrine?

A

In a diversity of citizenship case in federal court, when a federal court must decide an issue of law, it must determine whether to use state or federal law.

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60
Q

How does a court determine which law (federal or state) to apply in a case?

A
  1. If there is a federal law on point, the court must use the federal law.
  2. If no federal law is on point, the court must determine if the issue is procedural or substantive. If the issue is substantive, the court will apply state law, If the issue is procedural, the court must use federal law.
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61
Q

What are four clearly substantive issues of law?

A
  1. Elements of a claim or defense,
  2. Statute of limitations,
  3. Rules for tolling statutes of limitations, and
  4. Conflict (or choice) of law rules.
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62
Q

How does a court determine if an issue is substantive?

A
  1. If it is outcome determinative,
  2. Balance of interests
  3. Will the issue avoid forum shopping (If the federal court ignores state law on this issue, will it cause parties to flock to federal court?)
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63
Q

Eerie means there [is/is no] general federal common law.

A

is no

This means general common law torts, contracts and property claims are under state law.

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64
Q

What is venue?

A

Which federal court will here a case.

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65
Q

Plaintiff may lay venue in any district where:

A
  1. All defendants reside, or
  2. A substantial part of the claim arose, or
  3. If all defendants live in different districts of the forum state, where ANY defendant resides
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66
Q

For venue, does it matter where the plaintiff resides?

A

No.

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67
Q

If a defendant does not reside in the United States, venue is proper in _____________________.

A

any district.

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68
Q

Where does a person reside for venue purposes?

A

Where they are domiciled.

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69
Q

What is transfer?

A

A case goes from one trial court in a judicial system to another court in the same juridical system.

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70
Q

Where may a case be transferred without waiver?

A

To a proper venue that has personal jurisdiction over the defendant(s).

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71
Q

When may a case be transferred to ANY district (even if venue is improper)?

A

If the original court is a proper venue, under a transfer statute if all parties consent and the court finds cause for the transfer (convenience and interest of justice).

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72
Q

For transfer of venue under a transfer statute, who bears the burden of proof for the transfer?

A

The defendant.

Because transfer would override Plaintiff’s choice of forum

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73
Q

What does a court look to when deciding whether or not to transfer a case?

A

Public factors: What law applies, what community should be burdened with jury service, desire to keep a local controversy in a local court, etc.

Private factors: convenience (e.g., where is the evidence and the witnesses?)

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74
Q

What is a forum-selection clause?

A

A provision in which the parties agree that a dispute between them will be litigated in a particular court.

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75
Q

Federal law will enforce a forum selection clause if they are not ____________.

A

unreasonable.

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76
Q

In federal court, ___________ law governs transfer of venue.

A

federal

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77
Q

If the original district is an improper venue, what may it do?

A

Transfer in the interests of justice or dismiss the case.

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78
Q

What is forum non conveniens?

A

Where another court, in another judicial system, is the “center of gravity,” and it makes more sense to have that case hear the case, a federal court will dismiss or stay the case.

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79
Q

Why can’t a court transfer a case in forum non conveniens?

A

Because the more convenient forum is in a different judicial system (cannot transfer a case from federal to state court)

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80
Q

What must a plaintiff contain in her complaint?

A
  1. Subject matter jurisdiction
  2. short, plain statement of claim (now requires facts supporting a plausible claim)
  3. A demand for relief sought
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81
Q

In her complaint, a plaintiff must plead facts supporting a ______________ claim.

A

plausible

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82
Q

How does a judge determine plausibility of plaintiff’s claims?

A

Her own experience and common sense.

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83
Q

Which claims must be plead with particularity?

A
  1. Fraud,
  2. Mistake,
  3. Claims for special damages
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84
Q

How may a defendant respond to plaintiff’s complaint?

A

By answer or motion.

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85
Q

When must a defendant respond to plaintiff’s complaint?

A
  1. Within 21 days of service, or

2. If service was waived, within 60 days from the date plaintiff mailed complaint

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86
Q

Are motions pleadings?

A

NO!

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87
Q

What is a motion for a more definite statement?

A

Motion filed before an Answer when a plaintiff’s complaint is so vague or ambiguous the defendant simply cannot respond.

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88
Q

What is a motion to strike?

A

Asks the court to remove redundant or immaterial things from a pleading (ANY party may move to strike)

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89
Q

What are the 12(b) defenses?

A
  1. Lack of subject matter jurisdiction
  2. lack of personal jurisdiction
  3. improper venue
  4. improper process
  5. improper service of process
  6. failure to state a claim
  7. failure to join indespensable party
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90
Q

When may a defendant raise a 12(b) motion?

A

In motion or in their answer.

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91
Q

Which 12(b) motions are waived if not raised in the defendant’s first motion or answer?

A
  1. lack of personal jurisdiction
  2. improper venue
  3. improper process
  4. improper service of process
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92
Q

When may a defendant raise a 12(b)(6) motion (failure to state a claim)

A

Anytime through trial.

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93
Q

When may a defendant raise a motion for lack of subject matter jurisdiction?

A

Anytime - no time restraints

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94
Q

If a court determines it lacks subject matter jurisdiction, what must the court do?

A

It MUST dismiss (or remand if the case was removed from state court)

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95
Q

If a defendant makes a pre-answer motion which is denied, when must he file an answer?

A

within 14 days of notice of the denial.

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96
Q

How may a defendant respond to allegations of a complaint?

A
  1. Admit
  2. Deny
  3. State he lacks sufficient information to admit or deny.
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97
Q

What is a defendant never deemed to admit?

A

damages

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98
Q

If a defendant fails to assert an affirmative defense in his answer, what might happen?

A

He may waive it.

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99
Q

If a defendant raises an affirmative defense in his answer, must the plaintiff respond to the answer?

A

No, the allegations in defendant’s answer are deemed denied

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100
Q

When does a plaintiff have a right to amend her complaint?

A

Once within 21 days after defendant serves his first rule 12 response.

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101
Q

When does a defendant have a right to amend his answer?

A

Once within 21 days of serving his answer.

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102
Q

If a party has no right to amend, how may a party amend a complaint or answer?

A

Must seek leave of the court.

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103
Q

When determining if a party may amend a pleading, what factors does a court look to?

A
  1. delay
  2. prejudice,
  3. futility of amendment
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104
Q

What is variance?

A

Where the evidence at trial does not match what was pleaded.

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105
Q

If a plaintiff presents evidence that is at variance with the pleadings and the defendant DOES NOT object, what may the plaintiff do?

A

Amend at or after trial to conform to the evidence.

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106
Q

If a plaintiff presents evidence that is at variance with the pleadings what may a defendant do?

A

The defendant may object that the evidence is at variance with the pleadings - evidence will be inadmissible.

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107
Q

When may a plaintiff amend her pleading to add an additional claim after a statute of limitations has run?

A

If the claim relates back to the original complaint.

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108
Q

When do amended pleadings relate back?

A

If they concern the same conduct, transaction, or occurrence as the original pleading.

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109
Q

How may a plaintiff change a defendant after a statute of limitations has run?

A

If the amendment will relate back, which means

  1. It concerns the same conduct, transaction or occurrence as the original,
  2. the new party knew of this case within 90 days of filing,
  3. She also knew or should have known that, but for a mistake, she would have been named originally.
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110
Q

What are supplemental pleadings?

A

Pleadings that set forth things that happened after the pleading was filed.

Example: P sues D on Jan. 15 for breach of contract that occurred Jan. 1, hen on Feb. 1, D punches P in the face.

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111
Q

Is there ever a right to file a supplemental pleading?

A

No.

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112
Q

How may a plantiff file a supplemental pleading?

A

Must make a motion , which will be granted in the discretion of the court.

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113
Q

What does Rule 11 apply to?

A

All documents, except discovery.

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114
Q

When a lawyer or pro se party signs a document, she certifies that, to the best of her knowledge and belief, after reasonable inquiry:

A
  1. The paper is not for an improper purpose,
  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 after further investigation.
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115
Q

If there is a violation of Rule 11, against whom may sanctions be ordered?

A

The party, attorney, or firm responsible.

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116
Q

Is a law firm jointly responsible for Rule 11 violations by an attorney?

A

Yes.

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117
Q

What is the purpose of Rule 11 sanctions?

A

To deter, not punish.

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118
Q

If another party violates Rule 11, can you file a motion for sanctions immediately?

A

No.

Must serve the motion on the other party, but not file for 21 days.

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119
Q

Does the safe harbor provision of Rule 11 apply when the court raises Rule 11 issues on its own?

A

No.

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120
Q

Which claims may a plaintiff join?

A

Any claims she wants, even if they are wholly unrelated to the original claim (still must have SMJ)

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121
Q

When may multiple plaintiffs join claims against a defendant?

A

When their claims arise from the same transaction or occurrence, and their claims raise at least one common question.

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122
Q

When may a court require a nonparty be joined?

A

If the person is necessary.

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123
Q

Who is a necessary party?

A
  1. An absentee, without whom, a court cannot accord complete relief among existing parties (worried about multiple suits)
  2. An absentee whose interests may be harmed if he is not joined, OR
  3. An absentee who claims an interest that subjects a party (usually the defendant) to a risk of multiple obligations.
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124
Q

When may a necessary party be joined?

A

If joinder is feasible:

  1. Court has personal jurisdiction over you, and
  2. joining would not defeat diversity.
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125
Q

If a necessary party cannot be joined, what must the court do?

A
  1. proceed without A or

2. Dismiss the entire case.

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126
Q

What factors does a court look at to decide how to proceed if a necessary party cannot be joined?

A
  1. Is there an alternative forum available
  2. What is the actual likelihood of harm to the necessary party?
  3. Can the court shape relief to avoid harm to necessary party?
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127
Q

What is a counterclaim?

A

A claim against an opposing party.

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128
Q

Where does a defendant assert a counterclaim?

A

In his answer.

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129
Q

If a defendant asserts a counterclaim against a plaintiff, what must the plaintiff do?

A

Respond under Rule 12.

130
Q

When is a counterclaim compulsory?

A

When it arises from the same transaction or occurrence as the plaintiff’s claims.

131
Q

When is a counterclaim permissive?

A

The claim does not arise from the same transaction or occurrence.

132
Q

If a party does not file a compulsory counterclaim in his answer, may he assert the claim later?

A

No - use it or lose it.

133
Q

If a defendant does not raise a permissive counterclaim in his answer, may he bring the claim in a separate case?

A

Yes.

134
Q

What is a cross-claim?

A

Claim against a co-party. It MUST arise from the same transaction or occurrence as the underlying action.

135
Q

Is a cross-claim ever compulsory?

A

No.

136
Q

What is an impleader?

A

A defending party is bringing in a third party defendant.

Also called third-party practice.

137
Q

If you have an impleader claim, must you assert it in the pending case?

A

No.

138
Q

When may a defendant implead?

A

Only to shift liability to the third party defendant that defendant would owe to plaintiff.
*Claim for indemnity or contribution

139
Q

How does a defendant implead a third party defendant?

A

Defendant files a third party complaint naming the third party defendant, and serves process on third party defendant.

140
Q

There is a right to implead within ___ days of serving an answer.

A

14

after 14 days, need court permission

141
Q

What is intervention?

A

A nonparty brings herself into the case as either a plaintiff or a defendant, and a court may realign her.

142
Q

Application to intervene must be _____.

A

timely.

143
Q

When may a person intervene as a matter of right?

A

If her interest may be harmed if not joined and she is not adequately represented now.

144
Q

When is permissive intervention allowed?

A

When the nonparty’s claim or defense and the pending case have at least one common question, and intervention would not cause delay or prejudice to a party.

(within the court’s discretion)

145
Q

What are the requirements for a class action?

A
  1. Numerosity,
  2. Commonality,
  3. Typicality, and
  4. Adequate representative.
146
Q

In a Type 1 class action, class treatment is necessary to avoid ________ either to class members or to the non-class party

A

harm/prejudice

147
Q

In a Type 2 class action, a class seeks _________ or __________ relief because the defendant treated the class members alike.

A

injunctive or declaratory

148
Q

In a Type 3 class action for damages, what is required?

A
  1. common questions predominate over individual questions, and
  2. class action is the superior method to handle the dispute.
149
Q

A case does not become a class action until it is _________.

A

certified.

150
Q

When a court certifies a class, a court must do what?

A
  1. define the class and

2. appoint class counsel.

151
Q

Class counsel must be able to _________ and __________ represent the interests of the class.

A

fairly and adequately

152
Q

If a party is denied class certification, may they appeal the denial?

A

Yes

153
Q

In a Type 3 class, the court must send ___________ notice to all ____________ _____________ members.

A

individual; reasonably identifiable

154
Q

What must be included in notice to a potential class members?

A
  1. They can opt out,
  2. They will be bound if they do not opt out, and
  3. They may enter a separate appearance through counsel.
155
Q

Must notice be went out to potential class members in Types 1 or 2 class actions?

A

No.

156
Q

Who pays for notice to potential class members?

A

The class rep

157
Q

Is there a right to opt out of a Type 1 or Type 2 class action?

A

No

158
Q

Can parties settle or dismiss a certified class action?

A

Only with court approval after court gives notice to class members to get their feedback on whether the case should be settled or dismissed.

Type 3 - this notice may give them another chance to opt out.

159
Q

Whose citizenship is considered to invoke diversity jurisdiction in a class action?

A

The citizenship of the class representative.

160
Q

How is the amount in controversy determined to invoke diversity jurisdiction in a class action?

A

The class representative’s claim must exceed $75,000

161
Q

The Class Action Fairness Act allows federal courts to hear a class action of at least _____ members if ____ class member is diverse of citizenship and the aggregated claims of the class exceed _____________.

A

100; any; $5,000,000

NO NATIONAL EXAM HAS EVER TESTED ON THIS

162
Q

Unless a court order says otherwise, when must a party provide initial disclosures to the other party(ies)?

A

Within 14 days of the 26(f) conference.

163
Q

What must be disclosed in initial disclosures?

A
  1. Identites of persons who have discoverable information that you may use to support your claims or defenses,
  2. Documents and things you may use to support your claims or defenses (copies or descriptions),
  3. Computation of relief and documents/ESI supporting,
  4. Insurance coverage that might cover all or party of a judgment in that case.
164
Q

Is discovery more broad or narrow than what would be admissible at trial?

A

more broad.

165
Q

What is the result if a party fails to disclose something she was required to disclose as an initial disclosure?

A

You cannot use that material in the case (unless the failure to disclose was substantially justified or harmless)

166
Q

Are facts known and opinions held by consulting experts generally discoverable?

A

No - only in exceptional circumstances.

167
Q

What must each party generally disclose to other parties regarding an expert witness who may be used at trial?

A

Identity of and written report by the expert witness.

168
Q

What must an expert’s written report include?

A
  1. opinions the expert witness will express,
  2. Bases for their opinion,
  3. facts used to form their opinions,
  4. their qualifications, and
  5. how much she is being paid.
169
Q

May a party take a deposition of an expert witness after disclosure?

A

Yes

170
Q

When taking the deposition of an expert, must the party pay the witness?

A

Yes, a reasonable fee per hour.

171
Q

Are earlier drafts of the expert witness’s report and communications between the lawyer and himself discoverable?

A

No - work product.

172
Q

When are pretrial disclosures due?

A

No later than 30 days before trial

173
Q

What must be provided in pretrial disclosures?

A

detailed information about trial evidence, including the identity of witnesses to testify, live or by deposition, and documents/ESI/things to be introduced at trial.

174
Q

Assuming no court order or stipulation provides otherwise, a party cannot send discovery requests to another party until after _______________________.

A

the Rule 26(f) conference

*Minor Exception: You can serve requests to produce earlier (more than 21 days after service of process) and they will be treated as though served at the 26(f) conference.

175
Q

Can you “notice” the deposition of a nonparty?

A

No - must subpoena

176
Q

Must a party to litigation be subpoenaed for a deposition?

A

No - can be noticed.

177
Q

What is a subpoena duces tecum?

A

Requires deponent bring requested materials with her to the deposition.

178
Q

Is a deponent required to review all her relevant files and notes before being deposed?

A

No, testimony is based on present recollection.

179
Q

Unless a nonparty agrees otherwise, what is the farthest she can be required to travel to have her deposition taken?

A

100 miles from where she resides or is employed.

180
Q

What limits are set on depositions?

A
  1. No more than 10 depositions,
  2. May not depose a single witness more than once,
  3. May not exceed 7 hours unless stipulated or with court order.
181
Q

May interrogatories be sent to nonparties?

A

No - parties only.

182
Q

What are interrogatories?

A

Written questions to be answered in writing, under oath.

183
Q

How long does a party have to respond with answers or objections to interrogatories?

A

30 days

184
Q

Can you respond to an interrogatory by saying you don’t know the answer?

A

No. You must respond based on information readily available to you.

185
Q

What is the maximum number of interrogatories you can send to a party?

A

25, unless court order or stipulation.

186
Q

If the answers to interrogatories can be found in business records and the burden of finding them would be about the same for either party, the responding party may:

A

allow the requesting party to have access to the records.

187
Q

What are requests for production?

A

Request that someone make available for review and copying documents or things, including electronically stored information, or to permit you to enter designated property to inspect, measure, etc.

188
Q

How long does a party have to respond to a request for production?

A

30 days

189
Q

How may a party request a medical exam of another party?

A

Must get a court order by showing:

  1. Health is in actual controversy and
  2. good cause.
190
Q

Which party chooses the licensed person to perform a requested medical exam?

A

The party who is seeking the court order.

191
Q

What is a request for admission?

A

a written request that someone admit things.

192
Q

How long does a party have to respond to a request for admission?

A

30 days.

193
Q

When responding to a request for admission, may a party state she does not know the answer?

A

Only if she states she made a reasonable inquiry and cannot find enough information from which to admit or deny.

194
Q

Does Rule 11 apply to discovery?

A

No

195
Q

When a party sends or responds to discovery she certifies:

A
  1. It is warranted
  2. It is not interposed for an improper purpose, and
  3. It is not unduly burdensome.
196
Q

After a party responds to discovery and circumstances change making a response or answer incorrect, must a party supplement?

A

Yes, without a request.

197
Q

May a party object to discovery on the basis of evidentiary privilege?

A

Yes (e.g., confidential communications between attorney and client)

198
Q

What is work product?

A

material prepared in anticipation of litigation

199
Q

Must material be generated directly by a lawyer to be considered work product?

A

No, it can be generated by a party or any representative of a party.

200
Q

If a document is work product, how may another party discover it?

A

Only if the party can show substantial need and the information is not otherwise discoverable.

(qualified work product)

201
Q

What qualifies as absolute work product?

A
  1. mental impressions
  2. opinions
  3. conclusions
  4. legal theories
202
Q

What must a party do if they withhold discovery or seek a protective order based on privilege or work product?

A

Claim the protection expressly and describe the materials in detail, listing the material by date, author, recipient, and privilege or protection claimed.

203
Q

How much detail must be included in a privilege log?

A

Enough detail to allow the judge to determine whether the material is protected.

204
Q

If you inadvertently produce privileged or protected material, what should you do?

A

Notify the other party promptly.

205
Q

What must a party do if they inadvertently receive privileged or protected information?

A

He must return, sequester, or destroy it pending a decision by the court about whether there has been a waiver.

206
Q

For information to be covered under the work product doctrine, a case must have been ________ or there must be a ________ of litigation.

A

filed; threat

207
Q

What are the three ways a court will get involved in discovery disputes?

A
  1. Protective order,
  2. Motion to compel,
  3. Motion for sanctions
208
Q

When may a party request a protective order when answering discovery?

A

When the party thinks a discovery request subjects it to

  1. annoyance,
  2. embarrassment,
  3. undue burden
  4. expense.
209
Q

Before moving for a protective order, what must a moving party do?

A

Certify in good faith she asked the other side to meet and confer.

210
Q

When a party responds incompletely to a discovery request, what may the requesting party do?

A

File a motion to compel.

211
Q

When a party fails to respond to discovery requests, may the requesting party seek sanctions?

A

Yes.

212
Q

If a court compels a party to respond to a discovery request and he continues to refuse, what may a requesting party do?

A

Move for sanctions.

213
Q

If a party fails to respond to discovery requests or comply with an order compelling his answer, what kind of sanctions may a court order?

A
  1. “merits” sanctions,
  2. costs and attorney fees,
  3. potentially could be held in contempt.
214
Q

When is contempt not an available sanction for failure or refusal to comply with a discovery request?

A

When a party refuses to submit to a medical exam

215
Q

What are merits sanctions options?

A
  1. Establishment order
  2. Strike pleadings of the disobedient party (as to issues related to the discovery)
  3. Disallow evidence from the disobedient (as to issues related to the discovery)
  4. Dismiss plaintiff’s case (if bad faith shown)
  5. Enter default judgment against defendant (if bad faith shown)
216
Q

When litigation is anticipated, parties must ___________ discoverable information.

A

preserve

217
Q

What may a court do if a party in control of electronically stored information failed to take reasonable measures to preserve it and it is then truly lost and cannot be recovered or restored as a result?

A

The court can order measures to cure the harm caused to the other party.

218
Q

An order that maintains the status quo until trial is a:

A

preliminary injunction

219
Q

Before getting a preliminary injunction, to maintain the status quo a party may seek a:

A

TRO

220
Q

A court can issue a TRO ex parte only if:

A
  1. Applicant files a paper under oath clearly shoing that if the TRO is not issued he will suffer immediate and irreparable harm if he must wait until the other side is heard, and
  2. Applicant’s lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant’s lawyer (or why such notice should not be required in this case).
221
Q

If the court issues a TRO, what must the applicant do to cover the other side’s costs and damages if it turns out the restraint is wrongful?

A

post a bond (security)

222
Q

What must the TRO include?

A
  1. specific terms,
  2. Describe in detail what the defendant must do (or refrain from doing),
  3. State why it was issued, and
  4. Why the threatened injury to plaintiff was irreparable.
223
Q

If the court issues a TRO, what can the defendant do?

A

move to dissolve or modify the TRO.

224
Q

How long is a TRO effective?

A

14 days, and can be extended up to another 14 days if the applicant shows good cause before expiration.

225
Q

If a TRO exceeds 28 days, it may be treated as a __________ ______________.

A

preliminary injunction.

226
Q

Is a ruling granting or denying a TRO appealable as of right?

A

No.

227
Q

May a preliminary injunction be granted ex parte?

A

No.

228
Q

To obtain a prelimnary injunction, the burden is on the applicant to show:

A
  1. He is likely to suffer irreparable harm if the injunction is not issued,
  2. He is likely to win on the merits on the merits of the underlying case,
  3. The balance of hardships favors him,
  4. The injunction is in the public interest.
229
Q

Is there a right to a preliminary injunction?

A

No - discretion of the court.

230
Q

If a court grants a preliminary injunction, the applicant must post ____________.

A

a bond,

231
Q

The preliminary injunction must make __________ findings of fact and _____________ conclusions of law.

A

specific; separate.

232
Q

Is an order granting or denying a preliminary injunction immediately appealable

A

Yes

233
Q

If plaintiff wants to withdraw her case, she can make a motion for voluntary dismissal __________, which the court has discretion to grant.

A

anytime.

234
Q

Plaintiff has a right to take a voluntary dismissal by filing a notice of dismissal before _______________________.

A

Defendant serves an answer or motion for summary judgment.

235
Q

Plaintiff may receive a voluntary dismissal without prejudice how many times?

A

Once.

236
Q

Plaintiff may obtain a default judgment if defendant does not respond to her complaint in ___ days of being served with process, or ___ days from mailing of waiver of service, if service was waived.

A

21; 60

237
Q

Does the court clerk enter default judgment automatically after time limits are passed?

A

No, plaintiff must move for entry of judgment.

238
Q

Does entry of default entitle plaintiff to recover?

A

No, until plaintiff gets a default judgment.

239
Q

May defendant respond to plaintiff’s complaint by motion or answer after plaintiff files a motion for default?

A

Yes

240
Q

The clerk of court can enter a default judgment if:

A
  1. Defendant made no response at all,
  2. claim is for a certain sum of money,
  3. Claimant gives an affidavit of the sum owed, and
  4. Defendant is not a minor or incompetent.
241
Q

If the clerk of court is not able to enter a default judgment, how does plaintiff obtain a default judgment?

A

Apply to the court.

242
Q

Does defendant get notice of a hearing for default judgment?

A

Only if he made an appearance in the case .

243
Q

In default judgment, may the plaintiff be granted more relief than pleaded?

A

No, but she can get less.

244
Q

In default judgment, may plaintiff be granted different relief than granted?

A

No.

245
Q

What must a defendant show to set aside a default judgment?

A
  1. good cause and

2. viable defense

246
Q

What is the standard for granting a motion to dismiss for failure to state a claim?

A

Assuming all facts pleaded as true, does plaintiff state a plausible claim?

247
Q

If a court determines plaintiff has failed to state a claim, does she get another chance to replead?

A

Usually.

248
Q

What may a court rely on in ruling on a motion to dismiss for failure to state a claim?

A

The face of plaintiff’s complaint, her experience and common sense.

249
Q

What is the standard for summary judgment?

A

Moving party must show that there is (1) no genuine dispute of material fact and (2) she is entitled to judgment as a matter of law.

250
Q

If the summary judgment standard is met, must a court enter summary judgment?

A

No - discretionary

251
Q

Any party can move for summary judgment no later than ___ days after the close of discovery.

A

30

252
Q

What evidence is usually proffered in motions for summary judgment?

A
  1. affidavits,
  2. declarations,
  3. deposition testimony,
  4. interrogatory answers
253
Q

In a summary judgment motion, can a party rely on pleadings as evidence?

A

No - pleadings are not evidence.

254
Q

Can a pleading ever bet treated as evidence?

A

Only if it is verified (under oath)

255
Q

Evidence submitted with a summary judgment motion must be based on ________ ______________.

A

first-hand knowledge.

256
Q

Does a judge assess credibility of evidence on a summary judgment motion?

A

No

257
Q

What is discussed at a Rule 26(f) conference?

A
  1. production of required initial disclosures,
  2. claims,
  3. defenses,
  4. settlement, and
  5. preservation of discoverable information.
258
Q

What must be presented to the court following a 26(f) conference and when?

A

a discovery plan no later than 14 days after the Rule 26 conference.

259
Q

Does a pretrial conference order supersede the pleadings?

A

Yes.

260
Q

The Seventh Amendment preserves the right to jury in ____________________, but not suits at _________.

A

civil actions at law; equity

261
Q

If a case involves a claim for relief at law and equity, a jury will decide facts underlying the claims at ________, not ________.

A

law; equity

262
Q

If a case involves a claim for relief at law and equity, in what order will a trial proceed?

A

Try the jury issues first, then the court will hear the remaining issues.

263
Q

Does the Seventh Amendment apply in state court?

A

No - federal only.

264
Q

A jury demand must be made in writing within ___ days after the defendant’s answer.

A

14

265
Q

What are the two kinds of juror challenges?

A
  1. for cause

2. peremptory

266
Q

When may a juror be struck for cause?

A

when a juror cannot be impartial.

267
Q

How many peremptory challenges will a party have?

A

3, unless the court gives more.

268
Q

Peremptory strikes may only be used in a ______ and _______ neutral manner.

A

race and gender

269
Q

Is juror selection state action?

A

yes.

270
Q

Unless parties agree otherwise, a jury vote must be _________.

A

unanimous.

271
Q

Before final argument and jury instructions are provided to the jury, what information must the court inform the parties about regarding the insructions?

A
  1. what instructions it will give, and

2. What proposed jury instructions it rejected.

272
Q

Must parties be allowed to make specific objections to jury instructiosn and the rejection of proposed instructions?

A

Yes - on the record and outside of the jury’s hearing.

273
Q

May a party raise a problem with a jury instruction in a post-trial motion or on appeal if he did not object before the jury is “charged”?

A

No, unless the instruction contained plain error.

274
Q

What information is provided in a general verdict form?

A

Who wins and, if plantiff wins, what relief is granted.

275
Q

What is in a special verdict form?

A

The jury answers in writing specific written questions about the facts in dispute, but does not decide who wins or loses. The judge then reaches legal conclusions based on the facts found.

276
Q

In a general verdict with written questions, a jury gives a genera verdict, but also does what?

A

answers specific questions submitted to it.

The questions ensure that the jury focused on the important issues.

277
Q

Who enters the judgment?

A

clerk of court.

278
Q

If the jury returns a special verdict and the answers are consistent with each other and the verdic, what happens?

A

Judge approves the judgment and clerk enters it.

279
Q

In a case involving a general verdict with written questions, if the answers are consistent with each other but inconsistent with the verdict, the court may do what?

A
  1. Enter an appropriate judgment consistent with the answers,
  2. Tell the jury to reconsider, or
  3. order a new trial.
280
Q

In a case involving a general verdict with written questions, if the answers are inconsistent with each other and one or more is inconsistent with the general verdict, what happens?

A

The court cannot enter judgment - he must instruct the jury to reconsider or order a new trial.

281
Q

In general, may a verdict be impeached based upon external matters?

A

Yes

282
Q

What external matters may a verdict be impeached upon?

A

examples: bribery of a juror, basing verdict on their investigation of matters outside the court instead of evidence at trial.

283
Q

Will a verdict be set aside if juror misconduct was harmless?

A

No

284
Q

In a bench trial, must a judge record her findings of fact?

A

Yes - they must state them on the record or in writing

285
Q

What must the judge put record in a bench trial?

A

Conclusions of law and findings of fact stated SEPARATELY

286
Q

What is a directed verdict (judgment as a matter of law)?

A

A motion for judgment as a matter of law based upon evidence presented to the jury at trial.

287
Q

When will a judge grant a directed verdict (judgment as a matter of law)?

A

Based upon the evidence presented at trial, no reasonable jury could disagree on the result.

288
Q

When may a party move for a directed verdict (judgment as a matter of law)?

A

After the other side has been heard at trial.

289
Q

When may a party move for a renewed judgment as a matter of law?

A

Within 28 days after entry of judgment, only if a judgment as a matter of law was raised at trial.

290
Q

What may a party base a renewed judgment as a matter of law on?

A

The same grounds as were raised in the JMOL at trial.

291
Q

When is a motion for a new trial proper?

A

After judgment is entered, but some error at the trial requires a “do over”

292
Q

Under what types of error may a new trial be ordered?

A

Any non-harmless error.

Examples:

  1. Judge gave an erroneous jury instruction
  2. New evidence that could not have been found before with due diligence,
  3. Misconduct by juror, party or lawyer,
  4. Judgment is against the weight of the evidence (serious error of judgment)
  5. Inadequate or excessive damages.
293
Q

What is remittitur?

A

Decreasing the amount of a judgment

294
Q

What is additur?

A

Increasing the judgment.

295
Q

May a federal court recognize additur?

A

No - violates the Seventh Amendment

296
Q

What is the effect of an offer of judgment?

A

If a party offers to settle a claim, rejects it, then is awarded a lower amount at trial, the party is liable to the offering party for all costs incurred after the offer was made.

297
Q

When may a party move for relief from an order of judgment as a result of a clerical error?

A

Anytime.

298
Q

When may a party move for relief from an order of judgment as a result of a mistake or excusable neglect?

A

In a reasonable time, not to exceed 1 year.

299
Q

When may a party move for relief from an order of judgment as a result of fraud, misrepresentation, or misconduct by an opposing party?

A

In a reasonable time, not to exceed 1 year.

300
Q

When may a party move for relief from an order of judgment based on new evidence that could not have been discovered with due diligence for a new trial motion?

A

In a reasonable time, not to exceed 1 year.

301
Q

When may a party move for relief from an order of judgment when the judgment is void?

A

In a reasonable time.

302
Q

What is a final judgment? What is the final judgment rule?

A

A judgment that determines the merits of the entire case;

Generally, a losing party has the right to appeal a district court’s decision if there has been a final judgment

303
Q

If there has been no final judgment on a case, how may a party appeal an issue?

A

interlocutory appeal.

304
Q

If a final judgment exists, when and where must a notice of appeal be filed?

A

No later than 30 days after entry of judgment in the district court.

305
Q

Can a remand order be appealed to the US Court of Appeals?

A

generally, no

306
Q

When may a party file an interlocutory appeal?

A
  1. Order reviewable as of right
  2. Nonfinal order under the Interlocutory Appeals Act
  3. “Collateral Order” Doctrine
  4. When multiple claims and parties exist in a case, a court may enter a judgment is against one of them if it makes an express finding that there is no just reason for delay
  5. Grant or denial of class action certification,
  6. Extraordinary Writ (mandamus or prohibition)
307
Q

The interlocutory Appeal Act allows appeal of nonfinal order if:

A
  1. the district judge certifies that it involves a controlling issue of law;
  2. as to which there is substantial ground for difference of opinion, and
  3. the court of appeals agrees to hear it.
308
Q

When may an appellate court hear a ruling on an issue under the collateral order doctrine?

A

If it is (1) distinct from the merits of the case, (2) involves an important legal question, and (3) is essentially unreviewable if parties await a final judgment.

309
Q

When a district court decides questions of law, by what standard does the court of appeals review?

A

de novo

310
Q

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

A

clearly erroneous.

311
Q

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

A

reasonable people could not have made that finding.

312
Q

On discretionary matters, the court of appeals will affirm a district court’s decision unless what?

A

The court abused its discretion.

313
Q

No reversal is required for error that is ____________.

A

harmless.

314
Q

When Case 1 and Case 2 are in different judicial systems, the court in the second case applies which preclusion law?

A

the law of the judicial system that decided the first case.

315
Q

What are the requirements for res judicata?

A
  1. Both cases were brought by the same claimant against the same defendant, and
  2. The first case ended in a valid final judgment on the merits.
  3. Case 1 and Case 2 asserted the same claim
316
Q

A final judgment was on the merits if:

A

Unless the court said otherwise when the judgment is entered.

317
Q

When is a judgment not on the merits?

A

If the judgment is based on jurisdiction, venue, or failure to join an indispensable party.

318
Q

When has a plaintiff asserted the “same claim” in a second case as in the first?

A

Majority view (including federal law): A claim is any right to relief arising from a single transaction or occurrence.

Minority view: There are separate claims for property damage and personal injuries because they are different primary rights.

319
Q

What is collateral estoppel?

A

An issue that was litigated in a first case is also presented in the second case, but will not be allowed to be relitigated in the second case and is deemed established.

320
Q

What are the requirements of issue preclusion?

A
  1. Case 1 ended in a valid, final judgment on the merits,
  2. The same issue was actually litigated and determined in Case 1,
  3. The issue was essential to the judgment in case 1 (the issue was the basis for the judgment)
321
Q

Against whom may issue preclusion be asserted?

A

Only against someone who was a party to case one or in privity with a party/

322
Q

When may a nonparty to case 1 assert collateral estoppel?

A
  1. Nonmutual defensive issue preclusion: The one using it was not a party to case 1 and is the defendant in case 2
  2. non mutual offensive issue preclusion: The one using it was not a party to case 1 and is the plaintiff in case 2.

Bar Exam (14 decks)

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