Civil Procedure Flashcards
1
Q
Which Jurisdiction can be waived and which can be asserted at any time?
A
Personal jurisdiction may be waived, but subject matter jurisdiction may be asserted at any time (thus not waivable).
2
Q
How diversity of jurisdiction applies to persons not living in the US?
A
A citizen of another country may trigger diversity of jurisdiction.
However, a US citizen living in another country indefinitely won’t (should file suit in a state court instead).
3
Q
Can I sue a defendant living in the same state as I do in federal court?
A
Yes, as long as it is done under a cause of action that arose under federal law. Defendant may be prosecuted in ANY federal court in the state.
4
Q
Is an expert, who was retained in anticipation of litigation or to prepare for trial but is not expected to be called as a witness, subject to discovery by the other party?
A
No, discovery of the expert’s opinions is permitted only on a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
5
Q
How can one consent to Personal Jurisdiction, if PJ is not warranted by the facts?
A
Unlike with subject-matter jurisdiction, a party may consent to personal jurisdiction expressly, impliedly, or by a voluntary appearance to defend the case on the merits.
6
Q
For Eerie purpose, how is solved a conflict between applicable federal and state procedural laws?
A
If the applicable state and federal laws conflict, the district court must ask whether a valid federal statute covers the disputed issue. If there is a valid federal statute on point, the district court must apply federal law rather than the State law.
7
Q
What does say the Rules Enabling Act regarding application of law in citizenship diversity cases?
A
Before applying a Federal Rule (rather than a federal statute) on point, the court determines whether the rule is valid under the Rules Enabling Act. Specifically, the court asks if the Federal Rule abridges, enlarges, or modifies any substantive right. If the Federal Rule leads to a different outcome, then state law is applied.
8
Q
In multi-state cases what law should one follow when serving on the Defendant?
A
For serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located (the forum state) or in the state where service is made.
9
Q
What must establish a Plaintiff seeking a preliminary injunction?
A
(i) she is likely to succeed on the merits;
(ii) she is likely to suffer irreparable harm in the absence of relief;
(iii) the balance of equities is in her favor; and
(iv) the injunction is in the best interest of the public.
10
Q
Can a D in a Federal court amend its petition to include a lack of Personal Jurisdiction after failing to do so in her initial appearance to the court?
A
Yes. Rule 15(a)(1)(a): a party may amend its pleading once as a matter of course within 21 days after serving it. 12(h)(1)(B): a party waives the defense of lack of personal jurisdiction by failing to include it in a pre-answer motion, a responsive pleading, or in an amendment allowed by Rule 15(a)(1), as a matter of course.
11
Q
How much discretionary power does a Federal Court have to allow parties to amend their pleadings?
A
Plenary. Should freely grant leave to amend a pleading when justice so requires.
12
Q
Can a court impose monetary sanctions to an attorney ex-officio?
A
No. A court may impose sanctions, including payment of attorney’s fees, on attorneys, law firms, and parties for violations of Rule 11, but may typically do so only when a party makes a motion for such fees.
13
Q
Can an attorney solely rely upon factual contentions put forth by the client in a pleading?
A
No. An attorney must make a reasonable inquiry into the factual contentions contained in a pleading.
14
Q
Are the acts of transfering property by a debtor after the filing of the bankruptcy petition to two transferees for less than reasonably equivalent value “related to the same transaction, occurrence, or series of transactions or occurrences”?
A
It depends on the nature of the property receive by each transferee.
Transfer of personal property is unrelated to the transfer of the real property.
15
Q
What are the requirements for a D to implead a third party?
A
D may implead a third party at any time after the complaint has been filed by serving a summons and third-party complaint on the third party. The D (third-party plaintiff) may do so without the court’s permission if he files the third-party complaint within 14 days after serving his answer to the plaintiff’s complaint.
16
Q
Can a Plaintiff file a third-party claim against a third-party Defendant for an unrelated transaction?
A
No. A plaintiff may file a third-party claim against a third-party defendant, but the claim must fall under the court’s jurisdiction and relate to the same transaction or occurrence as the original complaint.
17
Q
How does a court decide on the extension of discovery when there is a challenge for a party to produce due to technical difficulties or elevated costs?
A
limits if the burden or expense of the proposed discovery outweighs its likely benefit.
The court limits the frequency or extent of discovery otherwise allowed by the rules if it determines, in its discretion, that the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake, and the importance of the discovery in resolving the issues.
18
Q
If a party fails to appear at a pretrial conference or fail to comply with a discovery order by mistake, what would be the adequate type of sanction, considering that the faulty party is the Plaintiff?
A
If counsel or a party fails to appear, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order. If due to a mistaken belief as to the date of the pretrial conference, then the most appropriate sanction would be the least serious of the sanctions: staying further proceedings until the order is obeyed.
19
Q
How many peremptory challenges is each party allowed?
A
Each party in a civil case is entitled to three peremptory challenges and limitless challenges for cause.
20
Q
Can a judge dismiss a juror without cause?
A
No. An individual who has been selected to serve as a juror must participate in the verdict unless excused for good cause, such as illness, family emergency, or misconduct.
21
Q
Can a case in a federal court be tried with less than 6 jurors?
A
Yes. A case may be tried before and a verdict returned by less than a six-member jury, if the parties so stipulate.
22
Q
Can a motion for a judgment as a matter of law be made at any time before the jury renders a verdict?
A
No. Only once the opposing party has been fully heard on the issue.
23
Q
What is the standard for a judge to grant a motion for judgment as a matter of law?
A
Under Rule 50(a), once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if the court finds that there is insufficient evidence for a jury reasonably to find for that party.
24
Q
Is an opening statement sufficient for allowing the other party to move for a judgment as a matter of law?
A
No. Under Rule 50(a), only after a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party, if the court finds that there is insufficient evidence for a jury to reasonably find for that party.
25
Can a district court make a clerical correction after the judgment has been docketed in the appellate court?
No. A court may correct a clerical or other mistake resulting from oversight or omission on motion by a party or on its own initiative, with or without notice. Once an appeal has been docketed in the appellate court, such a correction can be made only with leave of the appellate court.
26
Does a class certification granting or denial automatically entitles a party to an immediate appeal with the appellate court?
No. An appellate court may, but is not required to, hear an immediate appeal of a certification decision rendered by the district court.
27
Is an injunction immediately appeallable?
Yes. While most interlocutory orders are not immediately appealable, certain equitable orders are reviewable immediately as a matter of right, including an order granting an injunction.
28
How many days does a party have to appeal a judgment or a certified order?
A judgment or order certified under Rule 54(b) must generally be appealed within 30 days from the date of the entry of the certified judgment.
29
What is the effect of a court of appeals permitting a party's appeal on the district court proceedings?
If an appeal is permitted, it will not stay proceedings in the district court unless the district court or the court of appeals so orders.
30
Will a motion to dismiss not disposing of all parties and claims qualify as final judgment and thus allow an immediate appeal?
Only a final judgment is subject to immediate appeal. Usually, a judge’s 12(b)(6) dismissal is considered a “final judgment” subject to immediate appeal. When there are multiple claims and parties, any order or other decision that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties will not end the action as to any of the claims or parties, and it may be revised at any time before the entry of a judgment adjudicating all of the claims and all of the parties’ rights and liabilities.
31
What does Rule 15 say?
An amendment to change the named defendant relates back to the date of the original pleading if it asserts essentially the same claim or defense, and the new party knew or should have known of the potential action and received notice within 90 days after the filing of the original complaint.
32
What are the 3 special cases of Supplemental Jurisdiction?
1) In an implead of third-party Defendant, federal court cannot hear the claim from P against the 3rd party D if P and 3rd party D are from the same state;
2) Combos under Rule 20 must maintain complete diversity;
3) Combos under Rule 20 work to solve lack of minimum amount.
Rule 20. Permissive Joinder of Parties
Rule 20. Permissive Joinder of Parties
Primary tabs
(a) Persons Who May Join or Be Joined.
(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
(2) Defendants. Persons—as well as a vessel, cargo, or other property subject to admiralty process in rem—may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
(3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities.
(b) Protective Measures. The court may issue orders—including an order for separate trials—to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party.
33
When is diversity assessed in a case?
Only when the case is filed.
34
What is Rule 20?
Rule 20. Permissive Joinder of Parties
35
What is the most often tested rule about removal?
If the only source of federal jurisdiction would be diversity, D cannot remove unless no defendant is a citizen of the state in which the original state-court action is pending.
36
How many days does the P have to request a remand for a wrongly removed case?
30 days.
37
What is the 100-mile bulge provision?
The third-party defendant (TPD) may be served personally anywhere within 100 miles of the court where the action is filed, even if the TPD does not have minimum contacts with the state or district in which the case is pending.
38
What are the differences between the standards for SJ and JML?
SJ requires "no genuine disputes as to any material fact (scintilla?)",
while the JML requires "legally sufficient evidentiary basis."
39
When can the dismissal under Forum Non Conveniens be applied?
Only when the alternative forum is abroad. In domestic cases, there is no dismissal. The federal court must transfer the case to another federal court if more adequate.
40
When deciding if issue preclusion should be applied, will the federal court look at the state that issued the order or the state where it is siting in?
The state that issued the order due to the principle of full faith and credit.
41
What is the deadline for requesting a jury trial?
14 days after the last pleading directed at the issue (usually answer by the opposing party).
42
When is judgment on the pleadings appropriate?
When the pleadings say that there are no genuine issues of material fact in the case.
43
Is necessary diversity between defendants and third-party defendants?
No, because none of them are plaintiffs.
44
What is the standard that an appeal court must use when evaluating a trial's court decision on which evidence to let in?
An abuse of discretion standard.
45
What is the usual deadline for appealing a judgment?
30 days. If missed, the court of appeals will lack jurisdiction.
46
Can a party demand another party to produce an employee for mental or physical examination?
Yes.
47
Do federal courts must first decide if they have jurisdiction before dismissing a case for forum non conveniens?
No. Federal courts may dismiss a case for forum non conveniens without first assessing if they have jurisdiction.
48
Can I aggregate claims to meet the minimum amount of 75,000.01 required for diversity cases?
Only if at least one of the Ps has a claim for the entire 75,000.01
49
When can Supplemental Jurisdiction allow a claim against a party in the same state as P to be hear (State A + State A)?
When the claim against the in-state party is attracted as related to a litigation connected with a Federal Question.
50
Can I hold a party that has not participated in a previous suit for a precluded claim?
Only if the claim precluded was related to derivative liability.
51
Are notice of claim requirements considered substantive for Eerie considerations?
Yes, since it will allow or deny a matter to be heard by a federal court.
52
Can an interpleader requested a federal court enjoining parties of entering actions in other state courts?
Yes.
53
Can an interpleader be requested to deposit the amount in controversy in full?
Yes.
54
In a limited partnership will residency be considered for only its general partners?
No, a limited partnership is a citizen of every state in which its general and limited partners are domiciled.
55
If there is diversity between P and Ds, does it matter for the purpose of removal if a D is a citizen of the state where the action was filed?
Yes, if removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed.
56
Is the nature of a grant of a summary judgment legal or evidentiary?
Legal.
57
What is the appropriate standard of review by the appellate court in reviewing a legal ruling?
A trial judge’s decision to grant a summary judgment motion is a legal ruling. As a legal ruling, the appropriate standard of review by the appellate court is de novo.
58
When would Federal Question apply to a case arising under state law with a contract claim?
When state law creates a cause of action, a federal court can nonetheless exercise general federal-question jurisdiction if the complaint raises a real and substantial issue of federal law, and the outcome necessarily depends on resolving this federal issue. Here the plaintiff’s complaint raises a genuine and substantial federal law issue (the constitutionality of the federal commercial paper), which must be resolved to decide her request for an injunction.
59
Where is venue for a federal civil action proper?
(i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located, or
(ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred,
or
where a “substantial part of the property” that is the subject of the action is located.
60
Under Eerie, may a district court award attorney fees in a state that does not allow attorney's fees?
Yes, in a diversity case on a state law claim, the federal court has discretion and may properly use its inherent power to assess attorney’s fees as a sanction for a defendant’s bad-faith conduct during the litigation, even if the law of the forum state provides that attorney’s fees may not be awarded to a successful party and even if the injured party has not requested for it.
61
Can a P residing in X state bring a claim against the US in any district?
No.
Only districts for P's residence or place of act/omission.
In an action filed under the Federal Tort Claims Act, or another act waiving sovereign immunity, venue is proper either in the judicial district where the plaintiff resides or in the judicial district where the act or omission occurred.
62
Where can a P bring a suit against a federal officer or employee?
Only P's residence judicial district.
An action against a federal officer or employee acting in an official capacity or under color of legal authority may be brought in the judicial district in which the plaintiff resides.
63
How can an attorney avoid sanctions for not investigating the factual contentions made in the counterclaim?
21 days to withdraw pleadings.
unless
evidentiary support / reasonable inquiry
A party (or party’s attorney) may seek sanctions that can include the payment of reasonable attorney’s fees and other costs attributable to violation of the certification made by a party or the party’s attorney in presenting a pleading or other paper to the court. Among the certifications made is that factual contentions contained in a pleading have evidentiary support based on a reasonable inquiry. Although the employee’s attorney violated this certification, the employee’s attorney is not subject to sanctions because the attorney withdrew the counterclaim within 21 days of service of sanctions motion.
64
Is it necessary to file a motion for default judgment in federal court?
No.
Failure to plead or otherwise defend an action may be shown by affidavit or otherwise. The court clerk must then enter the party’s default.
Once a default is entered against a party, the plaintiff may seek a default judgment.
If the relief sought is a sum certain or an amount that can be made certain by computation, the default judgment can generally be entered by the court clerk on the plaintiff's request, accompanied by an affidavit showing the amount due.
Otherwise, the plaintiff must apply to the court for a default judgment.
65
What types of materials can a court consider when deciding a motion for summary judgment?
Any materials cited by the parties, even if presented in a non-admissible form as long as the facts contained in the submissions are admissible at trial.
In deciding a motion for summary judgment, the court must consider the materials cited by the parties—affidavits, documents, electronically stored information, pleadings, deposition transcripts, interrogatory answers, admissions, and stipulations filed by the party, even if not presented in a form that is admissible at trial, as long as the facts contained in the submissions are admissible at trial.
66
How does the "two-dismissal" rule operate?
If a plaintiff has voluntarily dismissed an action based on a claim without court approval, a subsequent voluntary dismissal of an action based on the same claim is a dismissal with prejudice and thus has preclusive effect. This is sometimes referred to as the “two-dismissal” rule.
When being adjudged by a federal court, it doesn't matter that the first dismissal occurred in a state court.
67
What is required financially from a stakeholder to file a federal statutory interpleader?
The stakeholder must be willing to either:
1) deposit the property at issue with the court or
2) to post a bond in an appropriate amount.
68
How is diversity assessed in a statutory interpleader action?
if any two adverse claimants are citizens of different states.
Unlike the typical federal court action based on diversity of citizenship, in which there must be complete diversity between each plaintiff and each defendant, diversity jurisdiction is met in a statutory interpleader action if any two adverse claimants are citizens of different states.
69
What is the minimum amount in controversy for a statutory interpleader action?
For a federal statutory interpleader action, the amount in controversy need only be $500 or more, rather than the $75,000 otherwise required for a diversity action.
70
How is service of process for federal statutory interpleader action?
nationwide personal jurisdiction
Unlike the typical federal court action based on diversity of citizenship in which the federal court generally follows the rules regarding service of process of the state in which the court sits, nationwide personal jurisdiction by service of process is permitted with respect to a federal statutory interpleader action.
71
Is a party entited to submit additional jury instructions when the court adopts a special verdict form or there were issues the parties could not have reasonably anticipated?
Yes, although the court may require the parties to file jury instructions at the close of evidence or at any earlier reasonable time, a party may file a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court for such requests as it may happen when the court uses special verdict forms.
72
If the jury does not follow the court's instructions, can the court resubmit the case to the jury?
set aside verdict/order jury to resume deliberations (court sua ponte).
Yes, when a jury’s verdict does not properly follow the court’s instructions, the court may set aside the verdict and order the jury to resume deliberations.
While a court may poll the jury upon a party’s request, there is no requirement that a party request that the jury be polled before a court can order the jury to resume deliberations due to a failure to follow the court’s instructions.
Although a juror may not testify as to her own mental process concerning a verdict or as to events that occur or statements made during jury deliberations, a juror is not prohibited from continuing deliberations in compliance with a court order.
73
Which wins? General verdict or special interrogatories?
Interrogatories win. When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, the court may:
(i) approve a judgment that is consistent with the answers, notwithstanding the general verdict,
(ii) direct the jury to reconsider its answers and verdict, or
(iii) order a new trial.
74
How many days does a party have to appeal an interlocutory order?
10 days.
If a district court certifies that an immediate appeal would help to resolve an unclear interpretation of a controlling question of law, a court of appeals has discretion to allow the appeal if the application is made to it within 10 days after the entry of the order.
75
What is a requirement for the court of appeals to hear an appeal related to an interlocutory order - even if it is related to a controlling question of law?
Certification by the district court. If a district court certifies that an immediate appeal would help to resolve an unclear interpretation of a controlling question of law, however, a court of appeals has discretion to allow the appeal if the application is made to it within 10 days after the entry of the order.
76
When can State B attach properties from a defendant being sued in the State A?
Only when State B can assert personal jurisdiction over the defendant.
Quasi-in-rem jurisdiction requires minimum contacts to exist between the defendant and the forum state before jurisdiction will apply.
77
How will a federal district court interpret what law the state's highest court authority would adopt if this court hasn't ruled on a certain issue yet?
generally look to any lower state-court decisions, unless highest state court would not follow it.
In determining a state’s substantive law, the U.S. district court will be bound by the rulings of the state’s highest court. If the state’s highest court has not spoken on an issue, however, the federal court must try to determine how the state’s highest court would rule on the issue, if it did consider it. To make this determination, the federal court will generally look to any lower state-court decisions that have considered the issue and will follow a lower court’s view, unless it believes that the highest state court would not follow it.
78
When a Defendant waives service, which date will be deemed the date of service of process, and thus, be compared against the statute of limitations?
The date when the P files the waiver form.
If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service of process.
79
How many days does a D have to file an answer after receiving a notice of the court's decision on D's pre-answer motion under Rule 12?
14 days only (NOT 21 days).
80
When is a party considered as a necessary party?
substantial risk of multiple or inconsistent obligations.
A party is considered necessary if the party’s absence would leave the existing parties subject to a substantial risk of multiple or inconsistent obligations.
81
When a D realizes that the P is leaving a necessary party outside the suit, must D file a counterclaim to interplead the necessary party?
No. D has two options:
(a) file a motion to dismiss P's suit for failiture to joun a necessary party, or
(b) file a counterclaim and interplead the missing necessary party.
82
What does the court have to do when it cannot join a necessary party due to lack of subject matter over a necessary party?
The court must (a) dismiss any requests for joining the necessary party not subject to subject matter jurisdiction, and consequentely (b) dismiss the entire action for missing a necessary party.
83
What type of notice must be given to a member of a class action who is not a named representative?
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Appropriate notice, at the discretion of the court.
For a class action that is certified under Rule 23(b)(1) or (2), notice to the class members, other than the named representatives, is at the discretion of the court. The court may order that appropriate notice be given, which often takes the form of publication notice.
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84
When can a party take the deposition of any party or nonparty?
Under Rule 30, unless under leave of court, a party may take the deposition of any party or nonparty witness at any time after the party has made its mandatory initial disclosures pursuant to Rule 26(a).
85
How many depositions each group (Ps or Ds) may take?
Without leave of the court, the plaintiffs and the defendants, each as a group, are limited to 10 depositions by oral or written examination.
86
When can a party take a deposition of a person for a second time?
After obtaining leave of the court.
87
Can a court direct parties or their representatives to attend a mandatory pretrial conference?
Yes, under Rule 16(a), the court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement.
The court may require that a party or its representative be present or reasonably available by telephone or by more sophisticated electronic means to consider possible settlement. If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action.
88
In which context, can "plain error" help a party who failed to object to missing or erroneous instructions at the propert time during trial?
Unless a party timely and properly objects on the record to an erroneous instruction given or proposed to be given by the court or to the court’s failure to give an instruction timely requested by a party, the party generally cannot raise the matter on appeal. However, the appellate court can address a plain error with regard to the jury instructions that affects substantial rights.
89
What are the requirements for a party to obtain a new trial when a juror deficiently answers to a voir dire material question?
To obtain a new trial, a party must demonstrate that
(a) a juror failed to answer honestly a material question on voir dire, and
(b) show that a proper response would have provided a valid basis for a challenge for cause.
90
Does the court need to state findings or conclusions when ruling on a motion to dismiss?
No, the court is not required to state findings or conclusions when ruling on a motion under Rule 12 (motions against the complaint) or 56 (summary judgment) or, unless the rules provide otherwise, on any other motion.
91
Can a order that grant or deny a receiver be immediately appealled?
Although generally a district court order that does not constitute a final order is not immediately appealable, there is a special statutory exception for an order that appoints or refuses to appoint a receiver.
92
What is the standard used by appellate court to review a trial court's decision on facts?
Clearly erroneous.
93
When is claim preclusion triggered in the context of vicarious liability?
Between master and servant/principal and agent?
The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action. Federal courts apply a transactional approach under which they bar a subsequent claim with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. Claim preclusion is limited to the parties or their privies.
94
How is the requirement that an issue is litigated for issue preclusion to apply?
In order for issue preclusion to apply, one of the requirements is that the issue must have been actually litigated in the prior action.
In this case, although the holder specifically alleged that the defendant was the maker of the note in the prior action, the defendant elected not to litigate that issue, instead choosing not to deny the allegation. Consequently, in the current action, the defendant is not precluded from litigating the issue of whether he is the maker of the note.
95
Will federal courts allow service in the state based on this state service rules be applied despite being a FQ case?
Yes, service according to the rules of the state where service is made is acceptable in FQ cases as well.
96
After when can the parties serve interrogatories? What is the standard limit in Federal Courts?
In general, a party may not serve interrogatories before the parties have held a Rule 26(f) discovery conference.
Any party may serve no more than 25 written interrogatories on any other party
97
Will a motion to dismiss or a motion to dismiss converted into a MSJ preclude the P from voluntarily dismiss the claim?
No, P will be able to voluntarily dismiss the claim until D presents an evidence in a trial or hearing.
The service of a summary judgment motion by a co-party with respect to a cross-claim (or counterclaim or third-party claim) does not cut off a party’s ability to voluntarily dismiss the claim without court approval or the consent of the other parties. This occurs only after evidence is introduced at the court hearing on the motion. Here, although the motion filed by the advertising firm was a motion to dismiss for failure to state a claim upon which relief can be granted, the attachment of an affidavit presenting evidence beyond the pleadings converted the motion into a summary judgment motion. Nevertheless, because the court had not held a hearing on this motion at which evidence was presented, the manufacturing company can voluntarily withdraw the cross-claim without court approval or the consent of the parties.
98
When will federal court govern in federal court when it comes to adoption of jury trial?
Always?
Because the Seventh Amendment provides for a right to a jury trial, federal law governs whether there is a right to a jury trial, even when the action is based on state law and the federal court’s jurisdiction is based on diversity.
A party may specify the issues for which it is demanding a jury trial.
99
Will a federal court decline jurisdiction to a domestic relations matter even if this is a support collection case properly meeting diversity requirements?
Unclear, federal courts have traditionally declined to exercise jurisdiction over domestic-relations matters, such as spousal support, even though the requirements for diversity jurisdiction are otherwise met.
100
Will a traffic accident in a state where C has no contacts with an independent truck driver hold the company subject to the jurisdiction of the court of this forum state?
No, if the corporation can establish that the truck driver was an independent contractor rather than an employee, then the court will not have general jurisdiction over the corporation due to the corporation’s lack of business dealings in the state where the accident took place and would not have specific jurisdiction over the corporation with respect to the accident.
101
Can an appeal circuit court use a different legal decision from the one used by the federal trial court?
Yes.
When a forum state’s highest court has not spoken on an issue, a federal district court sitting in diversity must try to determine how the state’s highest court would rule on the issue, if it did consider it. To make this determination, the federal court will generally look to any lower state-court decisions that have considered the issue and will follow a lower court’s view, unless it believes that the highest state court would not follow it. If, after a federal district court action has been completed, the state’s highest court rules on an issue in a way that is different from the way the district court predicted, then a federal appeals court is bound by the state court’s ruling.
102
What is the ("most favorable light") test to be used by a court when deciding a motion to dismiss filed by the Defendant?
In deciding a motion under Rule 12(b)(6), courts must view the pleading in the light most favorable to the plaintiff.
103
What are the main differences between counterclaims and cross-claims?
Counterclaims are compulsory. Counterclaims must be asserted against a party who has filed a cross-claim against you if arising from the same occurence.
Cross-claims are not mandatory.
104
Can class members seek individualized monetary damages when such monetary relief is not incidental to the injunctive or declaratory relief?
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No.
Under Rule 23(b)(2), a class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party. An additional claim for monetary damages may not be sought, at least where the monetary relief is not incidental to the injunctive or declaratory relief. Moreover, a claim for individualized monetary relief is not available because a claim under Rule 23(b)(2) is only available when a single, indivisible remedy would provide relief to each class member.
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105
Which clause protects the individual rights from actions taken by the federal government?
The Due Process Clause of the Firfth Amendment protects the fundamental rights:
1) Privacy
2) Vote
3) Travel
106
What does mean "defendant was not subject to service of process in her home state for this action under the laws of the forum state" in practical terms?
It means that "the federal district court does not have personal jurisdiction over the defendant despite the fact that she was personally served with process"
107
How "in rem" actions make easier to serve Ds outside of the forum state?
In an in rem action, the forum court generally has personal jurisdiction over a defendant when the dispute centers on ownership of property located in the forum state.
108
How must a service be made in an action against the US?
When the United States is a defendant in a civil action, service must be made:
1) U.S. Attorney General as well as the ;
2) U.S. attorney for the district in which the action has been filed.
109
How do deposition (and other discovery tools for that matter) limits apply to multiple Ps, Ds, etc.?
Without leave of court, the plaintiffs, the defendants, and the third-party defendants, each as a group, are limited to 10 depositions by oral or written examination. Unless the parties agree to the deposition, leave of court must be obtained to exceed the 10-deposition limit.
110
Is a TRO appealable?
No, in general, a TRO is not an appealable interlocutory order unless it is extended beyond the period permit under Rule 65. Under Rule 65, a court is generally permitted to grant a TRO for a period of no more than 14 days in the absence of the existence of good cause or the consent of the adversary.
111
How can a partnership provide "claimant located in the district" based for personal jurisdiction in a federal interpleader case?
A partnership, an entity with the capacity to sue and be sued in its common name under applicable law, is deemed to reside in any judicial district in which such defendant is subject to the court’s personal jurisdiction.
While none of the claimants reside in the district in which the forum court is located, the partnership, an entity with the capacity to sue and be sued in its common name under applicable law, is deemed to reside in any judicial district in which such defendant is subject to the court’s personal jurisdiction. Because, as noted with respect to answer choice B, the federal interpleader statute provides for nationwide personal jurisdiction over a party, venue is proper in the forum court.
112
Will a general denial suffice for a D to survive a motion for SMJ?
No, D should present affidavits or an explanation about why cannot provide with more than just general denials.
113
Can a federal court remand a case to a state court if the case was wrongly initialy filed in the federal court (e.g.: $50,000 claim with two diverse parties)?
No, the federal court should dismiss this action. It cannot remand to a state court, since it was not filed with any state court.
114
What is the "probate exception"?
The probate exception prohibits a federal district court from interfering with state proceedings to probate or annul a will or to administer a decedent’s estate, assuming general control over probate, or affecting possession of property in the custody of a state court.
115
What is an example of the difference between an additional party and a third-party defendant?
In an accident between a car and a truck, the truck may join a motorcycle that was involved in the accident directly (additional party) or join a third-party insurance company who will have to pay for damages eventually granted to the plaintiff.
116
Can a request for admission include the application of a law to a fact related to a suit?
Yes, request for admission may relate to statements or opinions of fact or to the application of law to fact.
Moreover, even a party who has a valid objection to a request for an admission must serve that objection on the requesting party, or the matter is deemed admitted.
117
Will matters deemed admitted because of the failure of a party to answer to a RFA constitute issue preclusion in a future case?
No, only for the pending action.
118
Will a declaratory judgment request to a federal court violate the "case or controversy" requirement?
No, since a declaratory judgment may be the appropriate remedy for some cases (e.g.: declare that a law being enacted is unconstitutional).
119
Will the alienage as a suspect class apply to congress?
No, alienage as a suspect class will usually apply only to a state government. Congress has plenary power
120
What is the usual legal test for federal laws regarding alient rights?
Because Congress has plenary power over aliens under Article I, a federal alienage classification is likely valid unless it is arbitrary and unreasonable.
121
How are laws limiting campaign contributions tested for constitutionality?
Statutes limiting campaign contributions are subject to intermediate scrutiny: they must be “closely drawn” to correspond with a sufficiently important interest.
Laws may limit contributions to individual candidates, but not to ballot measures.
122
Under diversity of citizenship, which amounts are aggregated for the purpose of assessing if the minimum of $75,000.01 is satisfied?
Not included: interest, costs, and collateral effects of a judgment.
Included: attorney’s fees may be made part of the amount in controversy if the fees are recoverable by contract or statute, and punitive damages, as well, may be permitted to be made part of the amount in controversy.
123
Can a second P join a claim not satisfying the minimum amount in controversy if another P, under the same common nucleus of operative facts, has satisfied the amount and there are no other diversity issues?
Yes, when a district court has diversity jurisdiction over a claim, the common-nucleus-of-operative-facts rule applies to determine whether the court can exercise supplemental jurisdiction over an additional claim.
Although the additional claim is not required to satisfy the amount-in-controversy requirement, the addition of the party bringing the claim cannot result in a violation of the requirement for complete diversity of citizenship.
124
Does a "nationwide service of process" mean "nationwide personal jurisdiction"?
Yes.
125
In a Federal suit related to land, is the district court where the land sits the only appropriate venue?
No, P may also sue in D's district as long as D lives in the same state where land sits.
126
Can a federal court transfer a suit to another district if the original federal court lacks personal jurisdiction?
Yes, although venue is improper in the forum court because the accident did not occur in the forum state nor did the defendant truck driver reside there, the forum court may transfer the action to any judicial district in which it originally could have been brought if it determines that such transfer is in the interest of justice.
127
Can a party timely requests for the jury to be polled in both civil and criminal cases?
Yes, although at one time the right of a party to poll the jury was only specifically granted in the Federal Rules of Criminal Procedure, this right has been added to the Federal Rules of Civil Procedure.
128
Can issue preclusion be used by a new party against a previous party who litigated an issue?
Yes, issue preclusion can be applicable to a position taken by a party in a prior action, even though the other party to the current action was not a party to the prior action. Mutuality of parties is not required.
Issue preclusion requires that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action.
129
How does issue preclusion work?
Yes, issue preclusion can be applicable to a position taken by a party in a prior action, even though the other party to the current action was not a party to the prior action. Mutuality of parties is not required.
Issue preclusion requires that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action.
130
When will issue preclusion apply?
Yes, issue preclusion can be applicable to a position taken by a party in a prior action, even though the other party to the current action was not a party to the prior action. Mutuality of parties is not required.
Issue preclusion requires that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action.
131
Is a denial of a SMJ motion appealable?
The denial of a motion for summary judgment is generally not appealable.
Ordinarily, a party cannot appeal a denial of summary judgment after trial has taken place, unless the arguments were renewed in a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. A growing majority of appellate courts, however, has carved out an exception to this general rule—allowing appeals of summary judgment denials based on "purely legal" arguments even if they were not raised again at trial in Rule 50 motions. Other courts, however, continue to adhere strictly to the rule, declining to review after trial any summary judgment denials, whether the decision was fact-based or a question of law. The U.S. Supreme Court has dodged the issue, leaving the circuit split in place.
132
How certain must a lawyer be about a defendant in a civil case in order to avoid a Rule 11 sanction?
An attorney may file a claim against a defendant if (a) the attorney is reasonably certain that the Defendant was the wrongdoer and (b) believes that discovery will allow him to discover the correct defendant.
133
What are the 3 types of class actions?
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Rule 23(b)(1) Risk of Prejudice
Rule 23(b)(2) Final Equitable Relief
Rule 23(b)(3) Common legal or factual questions
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Only Rule 23(b)(3) requires notice. Notice will be adequate as per court's decision.
