CivPro Flashcards
When may a party or court file/grant a motion to strike regarding a party’s complaint?
A motion to strike can remove a part of a party’s complaint if it contains:
1) An insufficient defense
2) Redundant info
3) Immaterial info
4) Scandalous info
5) Irrelevant
What happens when a defendant party “defaults” and what steps may the plaintiff take?
Default occurs when the defendant fails to timely file a motion, answer, or any responsive pleading to a complaint.
A plaintiff may:
1) Request that the court clerk enter a default, so long as plaintiff can prove defendant’s failure to plead or defend; THEN
2) Make seek a motion for default judgment before the court.
What is a Judgment as a Matter of Law (JMOV) and when can it be requested?
JMOV can be raised by a party when there is insufficient evidence for a jury to reasonably find for said party, even in the light most favorable to them.
The court may grant a JMOV once a party has been fully heard on an issue at a jury trial, and can be raised anytime before case is submitted to jury.
When may a court hold Supplemental JDX over a diversity claim that does not meet the AIC requirement?
No!
Does a party consent to Personal Jurisdiction by filing a lawsuit in a forum state?
Yes; the party has implicitly consented to PJDX on
1) The actual matter
2) Any counterclaims asserted against them
Under the FRCP, may a plaintiff’s attorney deliver service of process** upon a defendant?
Yes!
(Note that an **attorney may be disqualified **from representing the plaintiff if the attorney is required to testify as to the propriety of the service of process, though this does not affect the validity of the service.)
When does a defendant waive the defense of insufficient service of process?
Waived if it is not raised in a pre-answer motion or in the answer itself.
If a defendant files a responsive pleading beforehand, the objection is waived.
What must a court do when a party is indispensable, but the court lacks SMJ?
The court must:
1) Dismiss the client as a party
2) Dismiss the case/action
When may a TRO be appealed?
Generally, a TRO cannot be appealed because it is not an appealable interlocutory order.
EXCEPT: If the TRO is extended past 14 days, it will be treated as a preliminary injunction and therefore appealable.
How do choice of laws rules work in Diversity Jurisdiction?
The federal court with diversity JDX over an action must apply the conflict of law rules of the state in which it sits.
Are choice of laws substantive or procedural?
Substantive
What is abstention?
In general, a federal court with subject matter jurisdiction** is required to adjudicate the controversy** despite the pendency of a similar action in a state court
Under Pullman, when may a court abstain from hearing a case where there is an *unsettled issue of state law?**
When the plaintiff brings a federal constitutional question.
Not a federal statutory question!
Do court’s have the discretion to order a new trial?
If so, do they also have the discretion to limit the issues addressed?
Yes to both!
What are some factors that could have a court at it’s discretion order a new trial?
1) Unfair judgment
2) Newly discovered evidence that existed at time of trial was overlooked AND would have altered outcome
3) Prejudicial misconduct by party, judge, juror
4) Verdict against clear weight of evidence
5) Verdict based on false evidence
6) Verdict that is excessive or inadequate
In deciding venue for an entity, if none of the other traditional basis’ for venue work, how do you determine venue?
In any state where the court has personal jurisdiction.
Can venue be proper in multiple places at once?
Yes!
If venue is already proper, unlikely that you can switch to a different proper venue.
For the purposes of “on the merits”, is a ruling of summary judgment on the merits?
Yes!
What is attachment jurisdiction?
A type of quasi-in-rem jurisdiction, where a plaintiff could use the attachment of property in a forum state to claim personal jurisdiction.
However, there must still be *minimum contacts between the defendant and the forum state.
When venue is transferred under the basis of convenience of the parties and witnesses, which state’s conflict of law rules should apply?
The laws of the transferor court.
EX: I file a suit in State A. It is removed to State B under the convenience of parties and witnesses. State A’s laws will apply because it is the transferor court.
**This is not a discretionary choice, nor can parties consent. The court MUST follow the rule of transferer court.
When a party intends to have an expert testify on their behalf, how many days notice must they provide the expert’s report for discovery?
90 days before the date set for trial
What are exceptions for failing to disclose an expert’s report in 90 days?
1) Nondisclosure was *substantially justified**
OR
2) Nondisclosure was harmless
When may a plaintiff successfully voluntarily dismiss an action without court approval?
So long as it is prior to the service of:
1) An answer
2) Motion for summary judgment
After such service, cannot voluntarily dismiss without court approval!
When is compulsory joinder required?
When the party’s participate in the suit is necessary for a just adjudication. They would therefore be a necessary party.
1) Prevents complete relief
2) Prejudice the absent person’s interest, cannot protect interests in future action
3) Results in multiple or inconsistent obligations
Permitted, so long as they do not:
1) Deprive SMJ
2) Lack of PJDX
3) Destroy Venue
Are tortfeasors facing joint and several liability considered necessary parties under joinder rules?
No!
May party’s stipulate to a jury verdict to not be unanimous?
Yes!
What is the rule regarding jury instructions?
The court must inform parties of the jury instructions that it proposes, and provide parties the opportunity to object on the record, outside presence of jury.
The court must do so prior to parties’ closing arguments!
Does a court have to approve of a party’s proposed jury instructions?
No, but they have to inform them how the court will use (or refuse to use) such instructions.
Can a court provide the jury with jury instructions before closing argument?
Yes! Can do so before or after closing.
May a defendant raise both alternative AND inconsistent defenses in their answer?
Yes!
Under *class action suits** or suits under the Class Action Fairness Act, is complete diversity required?
No! Only minimal diversity.
When at least one plaintiff is from a state that is different From at least one defendant.
When may a TRO be issued without notice to the adverse party?
1) Moving party establishes that immediate and irreparable injury will result prior to hearing from adverse party
AND
2) Attorney certifies in writing any efforts made to give notice OR
**why notice should not be required. **
Under discovery, is a party required to disclose any insurance agreements?
Yes, must provide for the other party copies and for inspect such agreements, where a business may be liable to satisfy all or part of a possible judgment in the action, or indemnify or reimburse or payments made to satisfy judgment.
Part of initial disclosures!
What types of disclosures are mandatory for discovery purposes?
1) Initial disclosures
2) Disclosures of experts 90 days before trial
3) Pretrial disclosures 30 days before trial
Finish: Appealable Interlocutory orders are appealable immediately as ______
“As a matter of right”
Such appeals are not at the court’s discretion.
In suing an insurance company directly, where are they a citizen of for purposes of diversity?
1) State of incorporation
2) State where PPOB
3) State where insured is located
When will an appellate court refuse to set aside a jury verdict?
Depends on the court, as there are three different standards. Will refuse if:
1) Substantial evidence to support verdict
2) Sufficient Evidence to support verdict
3) Will always uphold unless there is no evidence to support verdict.
What is an intervention of right?
When a nonparty has the right to intervene when a federal statute grant’s that right.
What is an interpleader?*
Interpleader allows the possessor of property to force all potential claimants to the property into a single lawsuit to determine ownership.
What is summary judgment and when may it be granted?
If the pleadings, the discovery, and disclosure materials on file show that there is **no genuine dispute as to a material fact **and movement is entitled to judgment as a matter of law.
Genuine issue of material fact exists when a reasonable jury could return a verdict for the nonmoving party.
Court must construe all evidence in the light most favorable to nonmoving party.
Can a motion to summary judgment be a response to a party’s complaint?
No! It is only during the pleading stage.
May parties waive subject matter jurisdiction or personal jurisdiction?
No SMJ!
Yes to PJDX!
Are domestic relations matters generally heard by federal courts?
No!
May a federal district court transfer an action to a court in a foreign country?
No, even if the facts indicate that it would be appropriate/convenient.
When must a party serve a written demand for a **jury trial?
Within 14 days of service of last pleading.
When must a party file a motion for a new trial?
Within 28 days after the entry o judgment.
