Civil Procedure Flashcards
1
Q
Filing of a NOTICE OF APPEAL
A
30 days of judgement, must make obj. during trial or else waived
2
Q
Harmless Error Rule
A
if errors do not make a difference then no appeal
3
Q
Final Judgement Rule
A
cannot have an appeal unless final Judgement was made, all issued were finally determined by the court
4
Q
Collateral Order Exception
A
issue may be decided if
a. It resolves the issue that is completely separate from the merits of the action
b. Any delay would cause too much damage
5
Q
Injunctions
A
can be appeal the granted or denying an injunction before all issues decided
6
Q
Standard of Review - Issue of Fact
A
Clearly erroneous standard
7
Q
Standard of Review - Issue of Law
A
De Novo Review
8
Q
Standard of Review - Relevancy, Prejudice, Court Orders
A
abuse of discretion
9
Q
Federal Court Diversity
A
state substantive, federal procedural
10
Q
Choice of Laws - Statute of Limitations
A
State substantive
11
Q
Choice of Law - Venue Issue
A
federal procedure applies
12
Q
Choice of Law - 2 state conflicting laws
A
Apply law where federal court sits
13
Q
Erroneous Jury Verdicts
A
(1) to approve an appropriate judgment according to the answers; notwithstanding the verdict; (2) direct the jury to further consider its answers and verdict; or (3) order a new trial.
14
Q
Default Judgement
A
one party fails to plead
15
Q
Voluntary Dismissal
A
P voluntary dismisses his or her own action
i. Once w/o prejudice
ii. Before D answers/Summary Judgement
iii. After D answers, need court approval
16
Q
Involuntary Dismissal
A
court will dismiss by order
i. Failure to prosecute
ii. Failure to obey a court order
iii. Lack of venue/jurisdiction
17
Q
Prejudice exceptions of involuntary dismissal
A
a. Lack of Jurisdiction
b. Venue
c. Insufficient service of process
d. Failure to join a party
18
Q
Grounds to Dismiss a Judge
A
(1) Appearance of Bias (2) Actual Bias
19
Q
Appearance of Bias
A
parties MAY waive
20
Q
Actual Judicial Bias
A
Parties MAY NOT waive
- Judge has personal knowledge – recused
- Judge was a lawyer – recused
- Judge or family has financial issues - recused
- Expressed opinion on merits – recused
21
Q
Red Judicata/Claim Preclusion
A
can claim or cause of action be relitigated
1. Generally no if same parties, same claim, decided on the MERITS, based on same transaction
22
Q
Claim Preclusion - Merger Doctrine
A
P wins, claim is merged into the judgment and cannot sue same cause of action again
i. If P loses = P is Barred from bringing it up again, cannot split via damages
23
Q
Collateral Estoppel/Issue Preclusion
A
(1) must have SAME issues, (2) actually litigated and DECIDED, (3) necessary to judgment
24
Q
Collateral Estoppel - Not Litigated Issues
A
resolved in settlement or Default Judgement
25
Collateral Estoppel - Mutuality in Issue Preclusion
original parties no longer applies, now look to privity
26
Collateral Estoppel - Defense Use of Collateral Estoppel
allowed generally, nonparty in 1st case is not D in 2nd case
27
Collateral Estoppel - Offense Use of Collateral Estoppel
not allowed generally
28
Full Faith and Credit
one state must give full legal effect in another state
29
12b Motion to Dismiss SMJ
pre-answer motion - lack of SMJ – can be raised ANYTIME,
30
Waived Motion to Dismiss
Pre-answer motion - waived if not in Motion or Answer
1. Personal Jurisdiction
2. Improper Venue
3. Insufficient Process
31
Motion to Dismiss for Failure to Join a PArty
pre-answer motion - raise BEFORE or AT TRIAL
32
12b6 Motion to Dismiss Based on Failure to State Claim Upon Relief
even if stacks true, no recovery, dismissed with prejudice, raised BEFORE or AT TRIAL
33
Motion to Strike
pre-answer motion - made w/21 days of service, strike Redundant, Immaterial info
34
Motion for More Definitive Statement
pre-answer motion, pleading is vague or ambiguous
35
Summary Judgement
no genuine dispute of material fact, can be made up to 30 days after discovery, if denied NOT appealable
36
Partial Summary Judgment
on a particular issue
37
Judgement as a Matter of Law/Directed Verdict
D makes motion after D=P’s case or either party after evidence
38
Judgement as a Matter of Law/Directed Verdict - Standard
whether a reasonable jury would have a legally sufficient evidence to find for the party
39
Renewed Judgement as a Matter of Law
(1) make 1st motion so you can bring the RENEWED motion (2) 28 days after verdict (3) same standard as JMOL
40
Motion for relief of judgement
clerical error or mistake, judge may correct mistake
41
Motion for new trial
1. granted if error would change result of trial
2. judge acted erroneous
3. jury, party, witness, or lawyer misconduct
4. verdict is against the clear weight of the evidence
42
Remitter
too much money, new trial ordered unless party accepts reduction of damages, no appeal
43
Additur
to add more money, NOT allowed in federal court
44
Motion for partially new trial
OK
45
Motion for new trial when new info
(1) if evidence discovered after trial, (2) couldn’t find during or before trial but tried, (3) material
46
7th Amendment
right to a jury trial
47
Amount of Jurors
Must have at least 6 not more than 12 jurors
48
Verdict
must be unanimous
49
Demand for Jury trial
must be made within 14 days of last pleading
50
Equitable Relief
no right to a jury trial
51
Voire Dire
juror can be dismissed for cause
52
For Cause Dismissal
(1) actual bias (2) possible bias (3) felony conviction (4) no limit to amount of strikes
53
Peemptory Challenge
3 strikes
54
Jury Instructions
must object before jury retires or will be lost on appeal
| h. Jury make take anything into evidence to the jury room, no science experiments
55
Grounds for new Trial
(1) outside information brought into jury room (2) juror lies in questioning in voir dire
56
Complaint
filing of complaint with the court commences statute of limitations
1. Service – w/90 days
2. Elements: (1) Short and plain statement with grounds of jurisdiction (2) Statement of the claim (3) Demand for Relief
3. Demand for Special Relief – (1) Fraud (2) Special Damages, must be pled with specificity
57
Answer
signed by Lawyer, whatever is not denied is admitted, 21 days
58
Affirmative Defenses
(1) contributory negligence (2) SoF, (3) SoL (4) illegality, (5) duress
59
Amendment of Complaint
a right as long as within 21 days after service of original pleading
1. Leave of Court Amendment – allowed when justice so requires
60
Relation Back Doctrine
related back if claim or defense arose out of the same conduct, transaction or occurrence of original pleading
61
Relation Back Regardings Parties
(1) arose from same T/O (2) w/90 days of filing complaint (3) new party knew or should have been brought but for mistake of ID
62
Rule 11
when a lawyer signs a pleading, the lawyer says basis for claim;
i. Ensures legal arguments are warranted by existing law
ii. Allegations have evidentiary support
iii. Not presented for improper purpose
63
Compulsory Counterclaim
(1) same T/O (2) Assert it or lose it
64
Permissive Counterclaim
(1) D may bring claim not T/O (2) needs independent JD
65
Permissive Joinder
multiple Ps can join together if claim (1) same T/O and (2) question of law or fact is in common
66
Compulsory Joinder
party must be joined if it is unfair to litigate w/o them
67
Compulsory Joinder - Necessary Party
impaired interest by not including
| a. If joining would destroy diversity, then case can still go forward
68
Compulsory Joinder - Indispensable Party
won’t join will prejudice
| a. If joining would destroy diversity, case will be dismissed
69
Adding Claims
may add as many claims as long as new claims have SMJ
70
Class Actions
(1) size (2) common question of law or fact (3) typical of class (4) fair representation
71
B1 Class Action
impairment of interests of class members, members may not opt out, notice is discretion of court
72
B2 Class Action
injunctive relief is sought, members may not opt out, notice is discretion of court
73
B3 Class Action
common question of all class members, may opt out, all members must give notice
74
Diversity Class Action
(1) citizenship of representative is the one that counts, (2) ok as long as 1 named member has claim over $75,000, (3) if entire claim is over $5 million then okay if not one person have over $75
75
Intervention
someone not in suit wants to come in
76
Intervention as of Right
(1) interest in property of litigation (2) would impair protection of interest if not involved (3) NO court permission needed
77
Permissive Intervention
(1) claim/defense is common question of law or fact to the suit (2) court permission is required
78
Interpleader
1 party owes money to 2 or more people, make then fight over damages
79
Statutory Interpleader
(1) nationwide service of process is allowed (2) as long as any two claims are diverse (3) min of $500 claim (3) person deposits money/property in Court or Bond
80
Rule Interpleader
(1) complete diversity (2) no nationwide service (3) over $75,000 (4) NOT required to deposit money/property
81
3rd Party Interpleader
D who believes 3P is liable for part or all of claim, D can implead them into claim AKA contribution/indemnity
82
Cross Claims
one party sues co-party (1) same T/O (2) actual damages
83
What is discoverable?
(1) not privileges (2) relevant (3) proportional to Needs of the Case
84
Work Product
Immune from discovery, anything prepared by counsel for trial, also people working for lawyer
85
When is work product discoverable?
(1) Substantial need (2) cannot obtain w/o UNDUE HARDSHIP
86
Experts for trial
must give a list IDing expert, expert must provide a report with data and compensation
87
Experts not testifying
discoverable only in EXCEPTIONAL CIRCUMSTANCES when impractical
88
Deposition
(1) party of non-party (2) written or oral (3) limit 10 depos, cannot depo same person more than once w/o court permission
89
Deposition of Non-party
subpoena
90
Deposition of Party
NO subpoena, can get sanctions
91
Interrogatory
(1) only to a PARTY (2) written/answered in writing (3) limit – 25
92
Request for Admission
written request, conclusively established
93
Request to Produce
documents in the other side’s possession, control custody
94
Physical/Mental Exam
if condition is subject of controversy (10 court order (2) good cause
95
Objection to Request
Info not relevant
96
Protective Order to Stop Discovery
for embarrassment, harassment, undue burden
| xv. Motion to Compel – one party not complying
97
Conference of Parties
(1) court MUST have conference (2) parties MUST submit Discovery plan
98
Scheduling Conference
(1) court MUST have conference (2) issue order w/ 90 days of filing (3) CANNOT be modified unless GOOD CAUSE
99
Final Pre-trial Conference
(1) MAY hold it (2) if exists, court MUST issue Pre-trial orders (2) ONLY modified to prevent MANIFEST INJUSTICE
100
Temporary Restraining Order
(1) no notice (2) IMMEDIATE IRREPARABLE HARM (3) expires in no more than 14 days
101
Preliminary Injunction
(1) notice and hearing (2) irreparable injury (3) more than 14 days
102
Subject Matter Jurisdiction
(1) diversity or (2) federal question
103
Diversity
(1) parties are citizens of different states AND (2) over $75,000
104
Domicile
permanent home and intent to stay there
105
Corporations
(1)domicile in principal place of business and (2) state where incorporated
106
Well-pleaded complaint rule
federal law must be obvious in complaint, federal defense =/= good enough for federal question
107
Supplemental Jurisdiction/SJ
normally won’t be fed court, but court let you add claims and parties MUST arise from common nucleus of operative fact
108
If FQ SJ
common nucleus of facts
109
If Diversity SJ
common nucleus of facts (1) compulsory counterclaim (2) joinder of parties in compulsory counterclaim (3) cross claims (4) impleader of 3rd party Ds
110
IF D trying to add SJ claim/party
allowed
111
If P trying to add SJ claim/party
not allowed
112
SJ not allowed
(1) original P vs. 3rd party D (2) compulsory joinder (3) joinder of Ds (4) intervention, P’s trying to intervene
113
In personam Jurisdiction
domicile, living, present
114
Long Arm Statute
law allowing nonresident to be brought into state to be sued
115
Minimum Contacts
enough contacts so D could REASONABLY anticipate to be brought into court w/p offending traditional notions of fair play and substantial justice
116
Service of Process
(1) limited to state where court sits or (2) long arm statute
117
100 miles budge system
okay if w/100 miles of fed courthouse where suit is sitting for additional parties for current case, 3PD and indispensable parties
118
Who can serve process?
(1) anyone not a party (2) over 18 years old
119
Indirect service
yes can leave with (1) over 18 (2) likely to give to D
120
In-Rem jurisdiction
getting PJ over property itself
121
Quasi-in Rem Jurisdiction
trying to get JD to satisfy judgement against individual
122
Removal
proper if could have been brought in fed court
123
Who may remove?
ONLY DEFENDANT can remove, if multiple D All must join to remove
124
Timing of Removal
30 days of service of complaint
125
Diversity Removal
(1) no removal is allowed if D is a citizen of forum state (2) not allowed over 1 year after beginning of action
126
Venue
(1) any D resides, and all D reside in that state (2) substantial part of events took place (3) D is reachable – has PJ
127
Corporation Venue
any district where principal place of business or state of incorporation
128
Forum Non Convensce
yes can be transferred if venue in 1st place but law of original state applies
