Civil Procedure Flashcards
Do plaintiff’s claims have to be related to aggregate for jurisdictional amount?
No
What jurisdiction’s rules apply regarding service?
FRCP allows service pursuant to rules used by the state in which the fed court sits and in which service takes place
How long does a defendant have to file if they waive the right to service?
Normally have 21 days to Answer; Upon a waiver, they have 60 days from the date the plaintiff mailed the summons and complaint
When can a party recover costs and fees for a motion to compel discovery?
If the party provides certification that they made a good faith attempt to confer with the opponent to obtain the discovery without court intervention
When can a plaintiff dismiss their case without the defendant’s assent?
They can dismiss at any time before the defendant files an Answer or an MSJ; If there’s a pending counterclaim, the case can’t be dismissed over the defendant’s objection unless the counterclaim remains pending
Required notice to the defendant in a motion for default
If the defendant has made an appearance, even if there is no Answer filed yet, they must be given notice by 1st class mail at least 7 days before the hearing
When is an expert’s opinion discoverable?
If that expert is intended to testify
If the expert will not testify, their opinion is discoverable only upon showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means
In a federal question case, when is an action deemed commenced for Statute of Limitations purposes?
When the complaint is filed with the court
When may the clerk of court sign and enter a default?
When the plaintiff’s claim was for a sum certain and the default was entered because the defendant failed to appear
How can a party request a jury trial?
The party generally must file a written demand and serve it on all the parties within 14 days of the service of the last pleading directing to the jury-triable issue (i.e. the Answer)
In what order will the court hear claims that are not all jury claims?
The Court will hear the jury claim first even if it is a counter-claim, and then will decide the non-jury claim if it was not already resolved by the jury
What is the standard of review for a renewed motion as a matter of law?
De Novo
What is the standard of review for a new trial motion?
Abuse of discretion
Can a federal case be removed to state court?
Removal to state court is not available for cases that are properly filed in federal court and that are within the federal court’s SMJ
What is the standard of review for a failure to give a jury instruction?
If the party objected on the record before the instructions are given: Abuse of Discretion
If the party fails to object: Plain Error
Does the judgement have to be fully satisfied for claim preclusion to apply?
No
When can a plaintiff dismiss their claim?
The plaintiff can voluntarily dismiss without leave of court before the defendant files an Answer and it will not be barred by claim preclusion (this can only be done once)
When can a nonparty later use a previous judgment offensively?
If the court determines it’s fair and equitable for the nonparty to do so
Preliminary Injunctions Balancing Test
The more likely the movant is to win on the merits, the less weight is given to the possible harm suffered by the defendant
Interactive Site Test
The more interactive the site, the more likely there’s general personal jurisdiction
Specific PJ: Many courts hold this when a writer intentionally targeted readers in the plaintiff’s home state
Is a matter that isn’t directly relevant to a claim/defense discoverable?
Yes, as long as it’s relevant to the general subject matter involved in the action and the court finds good cause for discovery
When are personnel records discoverable?
If the requesting party’s interest outweighs any privacy interest infringed by the disclosure
When is a default judgment entitled to preclusive effect?
If the federal court had SMJ and PJ over the parties; The losing party is barred from asserting defenses that could have been raised in the first suit
Post-judgment JMOL
Motion must be made within 10 days of the verdict and the party must revive the previous JMOL made at the close of ALL evidence (making the motion solely at the end of the plaintiff’s evidence is not sufficient); Can only be on the grounds advanced in the pre-verdict motion
Some courts will allow even if reviving a JMOL only made at the close of the plaintiff’s evidence if the evidence introduced by the defendant was brief and could not possibly change the court’s decision on the earlier motion
Are joint tortfeasors permissive or necessary?
Permissive; A defendant cannot compel a possible other tortfeasor to be joined as a co-defendant
Service on a foreign corporation
The court can authorize any method if no international agreement prohibits it
Choice of law: when contacts are thoroughly split among several jurisdiction
Courts applying the most significant relationship will pay special attention to the principals for making choice of law decision (i.e. the policies of the laws in conflict and on any interest of its own state in having its policies apply)
Conflict of Law: Local and Foreign law
Where both jurisdiction’s policies would be furthered by applying their law, most courts will apply local laws unless there’s a strong reason not to
Collateral Order
Conclusive determination of an independent issue and delay in review would effectively preclude the losing party from an opportunity to vindicate its rights on appeal
Writ of Mandamus or Prohibition
To confine trial judges to the lawful exercise of their jurisdiction or to compel them to act if they abdicated their jurisdictional obligations; Only used in exceptional circumstances
Pendent Appellate Jurisdiction
The moving party must show the two rulings are inextricably intertwined or that meaningful review of the ruling over which the court has jurisdiction wouldn’t be possible without review of the appealable ruling
Is a judgment entered pursuant to a settlement precluded by issue preclusion?
No
Colorado River Abstention
The mere fact of duplicative litigation isn’t enough; There must be evidence of other factors that militate against federal litigation such as risk of inconsistent rulings or clear evidence of federal policy favoring unitary adjudication of the claims at issue
Class Certification: Typicallity
Requires the claims to stem from a single event or to be based on common legal theories. Courts are hesitant to certify where the claims of injured persons will be represented by a representative with no person injury or where personal injury claims are lumped with non-personal injury claims
Class Certification: Adequacy of Representation
Requires 1) whether the representative’s interests are aligned closely enough with other class members to ensure fair representation and 2) class counsel is experienced and qualified
Plaintiff’s claims against third party complaintant
Supplemental jurisdiction in diversity cases does not extend to claims by the plaintiff against persons brought in with a third-party complaint unless there is an independent basis for jurisdiction
Motion to Dismiss: SMJ v. no cause of action
When Congress doesn’t state in the statute that the definitional requirement is a jurisdictional prerequisite, courts should treat it as non-jurisdictional, and rather an element of the cause of action
Forum selection clauses and Transfer
The clause must be treated as a significant factor, but not dispositive - It should be granted if doing so would give effect to a freely negotiated and fair forum selection clause (a.k.a. no special hardship or denial of justice to either party)
A forum selection clause in an international K should control absent a strong showing it should be set aside
When is a party subject to sanctions for failing to provide a deponent?
Always, even if the party would be beyond the reach of the court’s subpoena power if the party were a non-party witness
How many jurors must a trial start with?
At least 6, but the parties can stipulate to a verdict with less
Standard of review when reviewing findings of fact made by the trial court in a bench trial
Clearly erroneous standard
Standard of review for judicial rulings on the admissibility of evidence in a jury trial
Abuse of discretion
Proper timing for a jury demand
Within 14 days after the last pleading directed to the issue for which a jury is sought, i.e. the answer
What law governs preclusion?
The law of the jurisdiction where the original suit was decided
What must the court include in the post scheduling conference order?
Limits on the time to join other parties, amend the pleadings, complete discovery, and file motions plus set the limits of discovery and set dates for pre-trial conferences and trial
Interrogatories
Can serve up to 25 only after the parties have conferred to arrange for initial disclosures and prepare a discovery plan
Can a plaintiff reply to an Answer?
Yes but they must seek leave of court except to answer a counterclaim included in the Answer
The better option is a Motion to Strike
When must 3rd Party Complaints be filed?
Within 14 days of filing of the Answer, otherwise through leave of court
Can a party amend their complaint following the entry of a final judgment?
Only if they first move to alter, set aside, or vacate the judgment pursuant to Rule 59 or 60
What law governs transfer of venue?
Federal
Is a TRO immediately appealable? How long are TROs allowed for?
No, but it will be once it matures into a preliminary injunction
TROs are only allowed for 14 days unless the court extends it for good cause or the adverse party consents
Renewed JMOL
The court must let jury’s verdict stand if there’s substantial evidence supporting the verdict, assuming the jury resolved all disputed issues in the non-movant’s favor
Third Party Claim
Can only be for derivative liability and requires more than simply alleging the plaintiff sued the wrong defendant
When is a juror’s action presumed prejudicial?
When the juror deliberately sets out to gather facts extrinsic to trial because this act involves reprehensible conduct directly contrary to the court’s instructions
What is the proper recourse when a federal court lacks personal jurisdiction?
The plaintiff can file the action in a court in a proper state where there is PJ after the federal court dismisses the first action as long as the statute of limitations has not yet expired
Plaintiff could also appeal the court’s dismissal
When must a party disclose the identity of an eyewitness?
If the party may call the witness to testify at trial or if the other party asks for disclosure
Can a party amend a Rule 12(b) motion to include additional exceptions?
Yes, but only if the adverse party is not prejudiced by the amendment and no delay results in the prosecution and determination of the case
Can an interrogatory be served on a non-party?
No
What claims can a third party impleader bring?
All claims, whether permissive or compulsory claims, regardless if there is a connection with the current litigation
