Civil Procedure Rules (from missed questions) Flashcards
Abuse of Discretion
lower court makes a discretionary ruling whether to admit or exclude evidence that is absurd or arbitrary
Harmless Error Rule
Harmless errors include technical errors that have no bearing on the outcome of the trial, and an error that was corrected
A “notice of appeal” must be filed with who and by what deadline?
Filed with the district court clerk within 30 days after entry of judgment or order appealed from
Final Judgments may be appealed
Physical and Mental Examinations (Rule 35)
may be rendered only against parties of those under a party’c control
Relation Back Doctrine
the amended claim “relates back” to the date of the original pleading only if it arises out of the same transaction/occurrence as the original claim
Aggregation of Claims
Separate claims 2 or more plaintiffs cannot be aggregated in order to satisfy the $$ requirement but multiple claims from one plaintiff can be aggregated to reach $$$ requirement
Impleader (3rd Party Complaint)
Must file within __ days of the answer or else will need to request leave of court
A defending party may serve a summons/complaint on a non-party who is or may be liable for all or part of the claim against that 3rd party plaintiff
14
Erie Doctrine
If a federal procedure law is on point then you ___ ____ that.
Federal court must follow the conflict of laws of the state in which the federal court sits
MUST FOLLOW
Waiver of Summons/Complaint
When the Plaintiff files a waiver; proof of service is not required (it is as if a summons/complaint was served at the time of filing the waiver)
Additional witnesses may be called only if court modifies the pretrial order
Interlocutory Orders denying injunctions may be appealed in federal court
In a “Common Question” Class Action, ____ to all members is required.
Notice
JNOV (judgment notwithstanding the verdict)
Same as JMOL
A party must have previously moved for a directed verdict @ some time during the trial
“Minimum Contacts”
Personal Jurisdiction; few contacts will suffice if those contacts are directly related to the cause of action
Venue
In a judicial district where any Defendant resides, if all the Defendants reside in the same state or where the event giving rise to the claim occurred or where there is personal jurisdiction on any Ds
Deposition of a witness may be used even if the witness is unavailable
Interrogatory
A party can send up to __ interrogatories
Is a list of questions that one party sends to another as part of the discovery process
50
Service of Process
Must be served with process within __ days
If a name/address is provided, must serve by ____, if not, then can serve by putting notice in the ______.
method by which the parties in a lawsuit formally deliver papers on the other parties and the court
90
mail; newspaper
Removal
Must be filed within __ days
Diversity Jurisdiction Exception: A defendant can remove from state to federal court no more than __ from the date of commencement of the action
A defendant may remove from state to federal court and notice must be signed by all the defendants and filed in federal court
30
One year
Compulsory Counterclaim
Any claim that arises from the same transaction or occurrence
A U.S. citizen domiciled abroad is NOT a citizen of any state and is NOT an alien
Class Action in Diversity Jurisdiction
Citizenship of named representatives is used to determine citizenship
What type of cases have are in the federal court’s exclusive jurisdiction?
Patent, Copyright, and Bankruptcy Cases
Cases within Federal Courts/State Courts Concurrent Jurisdiction
All other cases
Removal in federal question jurisdiction –> diversity does NOT matter
Class Action Requirements –> Complete diversity is not required:
1) Greater than 100 members in P’s case
2) $$$$ is greater than 5 million
3) Any single P is diverse from any single D
Removal –> Diversity jurisdiction is allowed when:
1) D is not a citizen of the state in which the action was filed
2) It is less than a year after filing
3) Diversity jurisdiction exists at the time of filing and when notice for removal was filed
Stream of Commerce
Not sufficient to establish minimum contacts; D must engage in other deliberate activities in the forum
Service of Process
Failure to file proof of service does NOT affect the validity of the service
If a Defendant waives service he has ___ days to respond to the complaint
60
Discovery: 30 days
1) Initial Disclosures
2) Interrogatories
3) Request for Admissions
4) Request for Production
5) Depositions
6) Expert Evidence to rebut other party’s expert
Compulsory Counterclaim
Brought by Defendant against Plaintiff and arises out of the same transaction or occurrence
A person served with a subpoena may object as outside scope of discovery or it requires person to travel
Jury: Challenge For Cause
Unlimited challenges
Jury: Preemptory Challenges
Only 3 challenges
Jury Verdict must be:
Unanimous
JMOL
Can be made during trial only and subsequent post-trial renewed JMOL (only if JMOL was made during trial)
Default Judgment is entered the defaulting party is entitled to how many days notice for a hearing on damages resulting from the default
7
If a preliminary motion was used then only ___ days to respond to the complaint
14
Temporary Restraining Order expires after __ days and can be extended for __ more days with showing of good cause
14; 14
Impleader: D has a right to implead within __ days of serving answer; otherwise need permission of court
14
Discovery: Initial Disclosures must be made within __ days after Rule 26 Conference
14
Demand for Trial By Jury can be made no later than __ days after the last pleading directed to jury-eligible issue; must file with court; serve other parties written demand
14
Appellate Procedure: Where class certification has been denied; must appeal within __ days
14
Complaint: Plaintiff can amend complaint within __ days of serving complaint
21
Complaint: If motion to dismiss/answer then it must be filed within __ days of that
21
Complaint: Defendant served with process and must respond to complaint within __ days
21
Renewed JMOL must be filed within __ days if judgment
28
Motion for a New Trial must be filed within __ days of entry judgment
28
Removal: Defendant must file for removal within __ days after served with the complaint; If Plaintiff amends, then within __ days of amendment (includes Remand)
30;30
Discovery: Initial Disclosures must be provided at least __ days before trial
30
Expert Evidence intended solely to rebut the other party’s expert must be within __ days
30
Interrogatories, Requests for Admission, Requests for Production must be within __ days
30
Motion for Summary Judgment must be made any time before __ days after close of discovery
30
Appellant must file notice within __ days of judgment
30
If a post trial motion has been filed and it is denied, a new __ day period begins to run from date of denial
30
Service of Process if waived then you have __ days to respond. Time to return request to waive service of process outside the U.S. is __ days as well.
60;60
Service of Process; Complaint and Summons must be served within __ days if filing complaint
90
Expert Disclosure: At least __ days before trial
90
If removal is based on diversity the Defendant must remove within __ year of filing unless Plaintiff attempted to thwart removal
1
Relief from Judgment; 3 grounds must not be made later than __ year from final judgment: Mistake, Inadvertence, or Excusable Neglect; Newly Discovered Evidence; Fraud, misrepresentation; or Misconduct by party
1
Domicile
1) physical presence in the new state and 2) intent to remain there indefinitely
Entry of Default Judgment
On the request of the P, supported by an affidavit as the amount due, the clerk may sign and enter judgment for that amount and costs against the D if: 1) the P’s claim against the D is for a sum certain, 2) default was entered b/c the D failed to appear, 3) D is not a minor or incompetent, and 4) the damages amount is not greater than the amount requested in the complaint
When a non-party wants to use a previous judgment offensively, the court must consider whether it would be fair and equitable to do so
non-parties can use issue preclusion offensively or defensively
