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Civil Procedure Flashcards

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Civil Procedure 1L flashcards
1
Q

4

In persona jurisdiction P sues D to impose personal obligation

Statutory Analysis:

Constitutional Analysis:

A
  1. each state is free to have own statute for personal jurisdiction (D is a citizen of state, D is domiciled ect…)
  2. Does D have “such minimum contacts” w/ forum so jurisdiction does not offend traditional notion of fair play and substantial justice
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2
Q

7 (contact, relatedness, fairness)

  1. Relatedness between this ______ and P ______
  2. Ask:
  3. ex:
A
  1. contact claim
  2. does P claim arise from D’s contact w/ forum state
  3. Doofus (PA) makes valves and sells to company (MN) who puts in widgets. Company widget explodes in NV because of valve = relatedness / specific jurisdiction
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3
Q

8 (Cont. 7)

If the answer is yes to Relatedness question (P claim arises from D’s contact w/ the forum) then ct has:

If answer is NO then what type of jurisdiction do you need:

A
  1. Specific Personal Jurisdiction

2. General Jurisdction

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4
Q

13

  1. Does due process guarantee that the suite will be in the most conveinent forum for D:
  2. What if D has to travel and bring all their witnesses to the jurisdiction:
  3. Does wealth of D matter:
  4. What is the standard then for burden on D:
A
  1. No
  2. Does not matter
  3. No, wealth not determinative
  4. D needs to show “severve disadvantage” in the litigation
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5
Q

15

Summary for PJ Constitutional Test

Contact (2)
Relatedness(1)
Fairness(3)

A

Contact:

  1. purposely avail
  2. forseeability

Relatedness: General (D home) v. Specific (contact)

Fairness:

  1. Burden on D,
  2. P interest
  3. States interest
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6
Q

22

What are the two main type of cases that can be heard in Federal Court:

  1. So what type of SMJ does Federal Court have:
  2. What type of SMJ does State Court have:
A
  1. Diversity of Citizenship (state or alien)
  2. Federal Question
  3. Limited Jurisdiction
  4. General Jurisdction
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7
Q

22A

What one question do you need to ask to determine if the P case is a Federal Question for Subject Matter Jurisdiction:

*YOU NEES to ask on an ESSAY

A

Is the P enforcing a federal right

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8
Q

24

Diversity of Citizenship / Alienage cases 2 requirements:

A
  1. case is between citizens of different state or citizen of state and foreign country
  2. amount in controversy exceeds 75K
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9
Q

27

  1. is an alien w/ a green card domiciled in a U.S. state considered an alien or a citizen of that U.S. state:
  2. So if you have a Diversity SMJ what type would it has to be:
  3. P(AZ) sues D (green card, domiciled in AZ) in Fed CT. Is there alienage for purposes of SMJ?
A
  1. alien
  2. Alienage NOT diversity
  3. NO - federal statute prohibits this type of SMJ
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10
Q

48

2 Steps to look at for Supplemantal Jurisdiction

A
  1. Test - claim arrises from the dame transaction or occurrence as underlying case “same facts”
  2. Limitation - in a Diversity case P cannot use supplemental jurisdiction to overcome the LACK of diversity.
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11
Q

50

P(PA) sues D(PA) on claims arising under federal antitrust laws and adds a claim understate antitrust laws. Claims all arrises from same transaction.

  1. Claim 1 ok:
  2. Claim 2 ok under support jurisdiction:
A
  1. yes - federal question
  2. yes - Same T/O and Limitationdoes not apply because
    NOT a diversity case
  • original claim NOT a diversity case.
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12
Q

53

P1(VA) and P2(VA) sue D(PA) on state law claims. P1 claim 100k. P2 claim 50k. Claims arise out of same transaction. Can claim by P2 invoke support jurisdiction:

A

yes -

  1. same T/O
  2. limitation does not apply b/c claim NOT against a
    co-citizen. Diversity issue / limitation does not apply
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13
Q

57

  1. Even if supplemental jurisdiction exists can courts still decline to hear:
  2. What factors may the court look at: (2)
  3. What is the main reason the court might use discretion to decline:
A
  1. yes
  2. i. complex state law ii. state laws dominate
  3. the uderlying federal claim is dismissed early on
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14
Q

74

  1. P may lay venue in any district where:(2)
  2. How do the above fit in if a case has been removed from state to district court:
A
  1. i. ALL D’s reside
    ii. A substantial part of claim arose
  2. Not relevant b/c if case is removed from state case goes to federal ct. that embraces state ct.
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15
Q

75

P(D.MA) sues D1(N.D. CA) and D2(W.D. TX) for 200k for breach of K occurring in District of Wyoming. What are the proper venues:

  1. does it matter for venue where P resides:
  2. does it matter if case is diversity or FQ:
A

District of Wyoming where claim arose. (all D’s don’t reside in same district)

  1. No
  2. No
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16
Q

76

  1. Where do D’s reside for venue purposes
    i. human:
    ii. corp/business:
  2. So Venue for corp / business could be achieved by: (4)
A

i. where domiciled
ii. all districts where they would be subject to PJ

  1. domiciled (incorporated or hq)
  2. consents
  3. served w/ process
  4. if NO 1-3 than contact/relatedness/fairness
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17
Q

81

  1. Forum selection clause:
  2. Do cts. typically enforce:
A
  1. parties enter into a K and K states a dispute will be litigated in a particular district
  2. Yes - ct. will almost always transfer if this clause exists.
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18
Q

(58)

  1. Removal:
  2. Remand
  3. Timing for Removal:
A
  1. D sued in state ct. and removes to federal ct.
  2. If removal was improper federal ct. can “remand” back to state ct.
  3. Within 30 days of “service of process” NOT filing
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19
Q

(61)

  1. What is the general rule as to what case can be REMOVED:
  2. Two big exceptions:
A
  1. Any case that meets requirements for Diversity or FQ
  2. No Removal in Diversity case if D citizen of forum, FQ is does not matter
  3. More than 1 year after the case was filed in state ct.
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20
Q

(63)

  1. P(GA) sues D(MN) and D(AL) on claim under federal law in an AL state ct. Both are served w/ process. Can D1 and D2 remove:
  2. P(GA) sues D1(MN) and D2(AL) on state law claim for 500k in an AL state ct. Both are served with process. Can D1 and D2 remove:
A
  1. Yes - involves FQ

2. No - exception Diversity case D2 is from AL (resides in forum state - “Instate D Rule”

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21
Q

65

  1. Where can D Remove case to:
  2. P sues D in state ct. in Houston which is in Eastern district TX. Can D remove to El Paso which is in Western TX.
A
  1. District that “embraces” state ct. Only the district where state ct was filed
  2. No - only Eastern TX where “embraced’
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22
Q

69

  1. What is the Eire Doctrine:
  2. What 3 questions should you ask:
A
  1. In a Diversity case a federal judge must decide to apply state law or a ignore state law
  2. Is there existing federal law (supremacy clause)
  3. If NO federal law must apply any substantive state law
  4. IF NO substantive state lae judge determines issues
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23
Q

70

  1. Re Erie Doctrine what is considered substantive state law(4):

What factors does ct. look at to determine if substantive if non of the 4 above apply (3):

A
  1. elements of claim or defense
  2. statute of limitations
  3. tolling of statute of limitations
  4. conflict of laws
  5. outcome determinative
  6. balance of interest
  7. avoid forum shopping
24
Q

86A

What 2 things do you need for substitutive service:

A
  1. Service at D’s usual abode

2. Service on someone who is suitable age and resides there

25
Q

91

  1. If interrogatories are mailed and you have 30 days to respond do you get extra time:
  2. Can you serve other documents by mail:
A
  1. yes - 3 extra days

2. yes - if other party consents

26
Q

94A

  1. D per R.12 responds by: (2)
  2. D must in _____ days unless _____ service _____days.
A
  1. motion or answer

2. 21, waived, 60

27
Q

96

Motion (Rule 12) defenses: (7)

Waivable

A
  1. lack SMJ
  2. lack PJ
  3. improper Venue
  4. improper process
  5. improper service of process
  6. failure to state a claim
  7. failure to join indispensable party

2 lack PJ, improper venue, improper process and service of process

28
Q

101

  1. Is the Answer a pleading and what 2 things must be in the answer:
  2. D responds in a answer and in what 3 ways:
  3. What else does D do in his Answer:
A
  1. yes - A) response B) affirmative defense
  2. yes - A) admit B) deny C) Lack of info to admit or deny
  3. Raise affirmative defenses
29
Q

114

  1. P have a right to Amend pleading:
  2. D have a right to Amend pleading:
  3. What if NO right to Amend what what can P or D do:
A
  1. yes - once w/in 21 days after D’s first Rule 12 response
  2. yes - once w/in 21 days of D serving his answer
  3. seek leave of ct
30
Q

115

What factors does ct. look at to determine if it will grant leave to AMD: (3)

A
  1. Delay
  2. Prejudice
  3. Futility of Amendment
31
Q

120

  1. Rule 11 applies to documents except:
  2. Rule 11 says: (3)
A
  1. Discovery (discovery covered by another rule)
  2. Attorney certifies to best of her knowledge after reasonable inquiry the doc file us:

i) not for improper purpose
ii) legally warranted NOT frivolous
iii) factual contentions

32
Q

124

  1. Mandatory disclosures discovery:
  2. When does this happen:
  3. What must be disclosed:(4)
  4. The info mandatory disclose is info:
A
  1. materials that must be disclosed even though no one asked for it.
  2. unless otherwise ordered w/in 14 days of Rule 26(f) conference
  3. identities of persons
  4. documents and things
  5. computation of monetary relief
  6. insurance coverage
  7. helpful to your claim or defense
33
Q

128

What if you know about ESI, or things but they are not in your custody or control do you need to disclose them:

A

NO - only things in your control

34
Q

131

  1. What must the party disclose re expert witness he intends to use at trial:(2)
  2. Written report includes: (5)
A
  1. identity
  2. written report
  3. opinion of expert
  4. bases for opinion
  5. facts used to form opinion
  6. expert’s qualifications
  7. how expert is being paid
35
Q

132

  1. After expert’s written report is disclosed what can the opposing party do:
  2. How does party compel attendance and what else must opposing party do re deposition:
  3. Are expert’s draft reports and communication between expert lawyer /witness work product therefore protected:
A
  1. take their deposition
  2. subpoena and must pay expert reasonable fee
  3. yes
36
Q

134

Pretrial mandatory disclosures and date for pretrial disclosure:

A

No later than 30 days before trial must give detailed info about trial evidence, including:

  1. witness to testify live or demo
  2. documents / things / psi
37
Q

135

  1. Assuming no ct. order / stipulation, when can a party first request discovery:
  2. What is a big issue / question in discovery:
A
  1. After Rule 26 conference.

2. Which tools can you use to get information from a Non-Party

38
Q

137

  1. Unless party agrees what is the farthest a deponent would be requires to travel:
  2. How can a party make sure they get the right person to depose from a Co. : Ex_
  3. What are 3 limits to depo:
A
  1. 100 miles
  2. Serve notice of depo on Co. and describe what they want to investigate.
  3. Can’t take more than 10
  4. Can only depose party once
  5. Only day of 7 hours

*ct order or parties can stipulate to more

39
Q

139

  1. What is the maximum of interrogators you can send a party:
  2. What can a party do if the answer to the interrogatories is in business records but is burdensome to find record:
A
  1. 25 (included subparts)

2. give access to party and let them look it up

40
Q

146

  1. Medical Exam for discovery:
  2. What must you show: (2)
  3. Who can be ordered to undergo a medical exam:
A
  1. To request physical or mental exam MUST get a ct. order
  2. persons health is in controversy
  3. “good cause”
  4. Party or someone in party’s custody or legal control ( narrow-like minor child)
41
Q

155

  1. PROPORTIONALITY:
  2. P seeks disco from D of relevant emails. The emails have been deleted from D’d server. D asserts getting emails is now overly burdensome and expensive. D seeks protective order, P motion to compel, what can the ct. do:
A
  1. Even if relevant ct. can limit discovery if cumulative, or burden outweighs importance of issue.
  2. Order production but allocate expense between parties
42
Q

157

  1. H sues S for losses when H boat sank. S hires PI to interview Gulligan a witness. PI written rpt for S states:

a) Gulligans statement
b) PI conclusion there is no defense
c) PI opinion Gulligan is a bad witness

  1. H moves for discovery of memo, S claims work product, is it:

158 (cont 157)

  1. Would the memo be work product if drafted in electronic form:
  2. How could H use “qualified work product” theory to get memo: (2)
  3. Who is always “absolute work product” (4)
A
  1. Yes - prepared in anticipation of trial
  2. Yes
  3. . substantial need
  4. not otherwise available
  5. Mental impression
  6. Opinions
  7. Conclusions
  8. Legal therories
43
Q

167

Partial response from party in disco, sanctions 2 possible steps:

A
  1. Motion to compel + costs and attn fees for motion
    - if party violates motion to compel
  2. Costs and attn fees + contempt of ct. and other sanctions by ct.
44
Q

171

  1. If party fails to produce ESI because lost in good faith are there sanctions:
  2. In “what two instances must you “try to work it out” w/ other party:
A
  1. Only in exceptional cases
  2. Seeking Productive Order
  3. Order to Compel and Sanctions
45
Q

172

  1. Three people are injured when a UBER crashes. May they sue UBER as Co-P’s and if so why: (2)
  2. May they (or any of them) sue the UBER driver and UBER as Co-Ds:
A

yes

  1. same transaction and occurrence
  2. raise at least 1 common question

yes

  1. same transaction and occurrence
  2. raise at least 1 common question
46
Q

174

  1. Necessary and Indispensable parties:
  2. What if the party called that the ct. has to deal with:
A
  1. case has been filed, ct. might FORCE non-party to join.

2. Absentee (A)

47
Q

175

An absentee (A) is necessary if meets any of these tests: (3)

A
  1. w/out A court can’t accord complete relief among existing parties
  2. A’s interest may be harmed if not joined
  3. A claims an interest that may subject D to multiple objections
48
Q

177

  1. So I am necessary now court must look to see if joinder is feasible: (2)
  2. What may a ct. do as it relates to #2 re feasibility:
  3. If feasible, what happens:
A
  1. There is PJ over party
  2. Joining does not goof up diversity jurisdiction
  3. Bring in party as a P or D as to not screw up diversity
  4. ct. orders joinder
49
Q

182

So if a D is looking to be indemnified or contribution they will ________ into case.

_____3.P -> D _____2.
|
D_____1.

A

Implead

  1. Third party Defendant
  2. Third party Plaintiff
  3. Plaintiff
50
Q

185

  1. Steps for D Impleading a third party D: (2)
  2. What must D have over third party D:
  3. There is a right to Implead w/in_____of serving Answer. After that D needs ____ _____.
A
  1. file a third party complaint naming third party D
  2. serve third party D (must have PJ)
  3. Personal Jurisdiction
  4. 14 days ct. permission
51
Q

189

  1. Necessary and indispensable ______ brings in the party.
  2. Intervention ______ brings int e party
  3. What are the reasons for the above happening: (3)
A
  1. ct.
  2. Party
  3. can’t complete relief / multiple law suits
  4. Absentees interest may be harmed
  5. Absentee interest subject D to multiple objections
52
Q

193

  1. Class Action:
  2. What 4 requirements must be met:
A
  1. A representative sues on behalf of a class.
  2. Numerosity - too many - joinder not possible
  3. Commonality - common issue for all members
  4. Typicality - reps claim typical of others
  5. Representative Adequate
53
Q

196

Type 3 (class action Damages) need 2 things:
ex:\_\_\_
A
  1. common questions predominate over individual questions.
  2. class is superior method to handle the dispute

Mass tort case, bus crash 80 people hurt but all will have individual questions BUT common question is driver negligent

54
Q

197

Representative’s complaint will say this is a “class action” BUT what MUST happen:

A

The court must certify

55
Q

198

Ct. certifies class what must it also do: (3)

A
  1. define class, claims, issues or defenses
  2. appoint class counsel
  3. notify members
56
Q

199

  1. Type 3 (class action damages) ct. must notify members are in class and tell them:(3)
  2. Type 1 and 2 must the ct. notify:
  3. Who pays for notice:
A
  1. they can opt out
  2. they will be bound if don’t opt out
  3. can enter separate appearance w/ counsel
  4. No
  5. Representative

Civil Procedure (3 decks)

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