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.
May an appellate court address a plain error by the court ,even if the party failed to object to the instructions?
Yes, if the error affects the defendant’s substantial rights.
EX: Improper jury instructions that affect an individual’s substantial rights are reviewable under the plain error doctrine.
When must a party file a motion for relief from a judgment?
Must be within one year from the entry of judgment. Includes:
1) Judgment based on parti’s or court’s mistake, inadvertance, surprise, or excusable neglect
2) Moving party discovered new evidence that existed at time of trial and would change course
3) Opposing party engaged in fraud, misrep, or misconduct.
What are situations where a party need not meet one year requirement for a motion for relief from judgment?
Such instances state that a party can make the motion made within a reasonable time under the circumstances.
1) Judgment has been satisfied, released, or discharged
2) Based on earlier judgment that has been reversed or vacated
3) Would violate equity i applied prospectively based on facts or law that have significantly changed since court issued judgment.
Is service of process proper if it is given to an unauthorized agent at the defendant’s place of business/employment?
No!
Authorized agent is allowed; does not mean employees of a defendant!
Dwelling with someone of suitable age and discretion is allowed, but not place of employment!
When will a subsidiary of a corporation be subject to personal jurisdiction?
1) Product is placed in the stream of commerce (even a little!)
2) Purposefully targets forum state
When can a subsidiary’s parent cooperation be a basis to hold PJDX over a subsidiary?
Only when the subsidiary was acting as the parent cooperation’s agent or alter ego.
What is the two-dismissal rule?
A voluntary dismissal will be with prejudice if:
1) Plaintiff voluntarily dismissed first action without court order in state or fed court
2) Voluntarily dismissed a second action based on same claim in federal court by filing a notice of dismissal.
- Will operate as an adjudication on the merits.
- AKA did so without a court order!
For diversity jurisdiction, when is an individual’s domicile determined?
Domicile is determined at the time the action was commenced.
May a federal statute allow for nationwide service of process, which would therefore allow for personal jurisdiction?
Yes!
Where is venue proper?
1) In judicial district where any defendant resides, if all defendants are from the same state
2) Where a substantial amount of events in the claim occurred
3) Where the property is located
4) Where the court has personal jurisdiction
Regarding conflicts of law, if there is no federal statutory rule on point, how does a court decide whether or not to use federal common law?
Court will ask whether failure to apply state will result in differing outcomes.
But even if the answer is yes, the court will apply federal common law if there are affirmative countervailing interests at stake.
Same when there is a uniquely federal interest at take when there is a significant conflict between interest and state law.
When is a third party complaint improper?
When a party is claiming that a nonparty is directly and soley liable to the plaintiffs harm.
In contrast, it is proper to bring such a complaint to argue that the nonparty owes the defendant contribution or indemnification. (AKA, the defending party is still partially liable!)
When must a party file a motion to remove to federal court?
Within 30 days
What must a court do if venue is improper?
1) Dismiss the Case
2) In interest of justice, transfer the case
Does a court have discretion to move venue if current venue is proper?
Yes; a court has the discretion to change from proper venue to another proper venue.
However, if venue is improper, then the court MUST either 1) dismiss the case; or 2) in interest of justice, transfer
What sort of subject matter jurisdiction does a court require for a cross-claim?
Supplemental Jurisdiction
A claim by a defendant against another defendant or plaintiff to another plaintiff is allowed without regard to AIC or citizenship, so long as the cross-claim arises out of the same transaction or occurrence as the initial claim.
When is a federal appellate court bound by the decision of the state’s highest court?
So long as the final appeal has not been disposed of in the matter, the court of appeals must follow the new ruling on state substantive law issue by the state’s highest court.
This is true even if the federal court has handed down a decision.
What happens when a court grants a motion to dismiss by cosnidering evidence outside the initial pleadings?
At that point, the pleadings stage begins. It should therefore be treated as summary judgement.
When may a motion to dismiss for failure to state a claim upon which relief can be granted be asserted?
1) In any pleading
2) At trial
What is required for diversity jurisdiction for a federal interpleader STATUE?
1) Complete diversity between the two adverse claimants
2) AIC is only $500 or more
When must a party file a motion for summary judgment?
Within 30 days after close of discovery
Are jury verdicts procedural or substantive law?
Procedural
So in a conflict of laws issue, apply federal law!
What are the three types of jury verdicts under the FRCP and how may a court choose which to use?
1) General
2) General with special interrogatories
3) Special
Court has discretion to ask jury which to return
Is a court required to allow attorneys to directly examine prospective jurors?
No!
However, if the court examines the jurors, it must provide the parties an opportunity to submit questions or allow them to make proper inquiries
What is the appellate standard for findings of fact?
Appeal can only be granted if court was clearly erroneous
District court and judge are given great discretion
What is the appellate standard for findings of law?
Appeal can only be granted under de novo.
How long does someone have to file an appeal?
Within 30 days of the last post-judgment motion.
When may a party amend their original pleading?
21 days after:
1) Service of original pleading (complaint)
2) Being served with a responsive pleading OR a motion
What are the requirements of a proper subpoena?
The subpoena will only have reach over a person to bring them for trial, hearing, or deposition if….
1) Hearing is within 100 miles of where subpoenaed person resides, is employed, or regularly does business
2) Hearing is within the state where subpoenaed person resides, is employed, and transacts business if he is a party or party’s officer.
What are three pre-answer motions that are waived if not initially brought?
1) Lack of PJDX
2) Improper venue
3) Insufficient service of process
When must a motion to remand be filed?
Within 30 days after notice of removal was filed.
When may supplemental jurisdiction be prohibited?
If the original claim is based on diversity jurisdiction, and:
1) Would contaminate diversity between opposing plaintiffs and defendants
2) Seeks 75k or les and is made by the plaintiff 1) against parties added through joinder, intervention, or impleader; or 2) seeking to join through compulsory joinder or intervention
May a party who has not submitted a prior motion for judgment as a matter of law submit one once a verdict has been rendered?
No! May only renew the motion if it was already made.
When may a plaintiff file a reply?
Only pursuant to a court ordered.
How long does party have to file a motion to strike?
21 days, and must be before responding to a pleading
Are issues revolving a jury procedural or substantive law?
Procedural!
What is the doctrine of forum non conveniens and what factors are used in it’s application?
Federal court may dismiss or stay a suit if a different state or foreign jurisdiction would be better suited to hear it.
Factors:
Private Interests:
- Accessibility of evidence
- Availability of witnesses
- Burden on defendant
- Enforceability of Judgment
Public Interest:
- Ability to comprehend substantive law
- Choice of law
- Interest in jury/community
- Functionality of foreign judicial system
When must a JMOL be made?
Before the case is submitted to the jury.
What happens when a deponent objects to a question?
1) Objection is noted
2) Examination proceeds
3) Deponent must answer, unless
- There is a court ordered limitation
- A motion to terminate or limit deposition is present
- Preservation of a Privilege
What is the difference in outcome when a non-answering deponent is a non-party vs. party?
Non-Party: Motion to compel can be filed where deposition occurred.
Party: Motion to compel can be filed **where lawsuit is pending.
When may a party submit jury instructions after the close of evidence?
1) Request relates to issue that party could not have reasonably anticipated by the deadline
OR
2) Court permits late submission
What are the applicabilities of appellate standards of review?
1) De Novo: Pure legal issues, such as conclusions of law or content of jury instructions
2) Clear Error: Factual issues in bench trials. Credibility of witnesses, factual determinations.
3) Substantial Evidence: Factual Issues in jury trials. Credibility of witnesses, and jury’s verdict.
4) Abuse of Discretion: Discretionary rulings by judge. Grant/denial of new trial, admissibility of evidence.
When may a deposition be conducted without the court’s leave or stipulation?
Notice is provided, UNLESS
1) Depositions exceeds 10 depo limit
2) Deposition is sought before party’s initial planning conference
3) Deponent was already deposed
How long does a defendant have to file their answer AFTER they had filed a pre-answer motion?
I.E. after a motion to dismiss for lack of PJDX or improper venue!
The defendant has 14 days following the court’s decision.
Is a party required to make a cross-claim against a co-party?
No!
This contrasts a counterclaim, where a party must raise a claim against an opposing party that arises out of same transaction in the same action.
Can you appeal a motion to dismiss?
No!
Even if it is a motion to dismiss for lack of SMJ!
What are the two types of quasi-in rem jurisdiction?
Type 1: Determines party’s interests in property
- Quiet title
Type 2: Uses person’s property to satisfy **unrelated claim
- Attachment
- Garnishment
What is necessary for a valid waiver of service of process?
Must be:
1) Written
2) Be sent to defendant via first-class mail
3) Name the court where the complaint was filed
4) Date of request
5) Contains:
- One copy of complaint
- Two copies of waiver form
- Prepaid means to return waiver
What happens when a defendant fail to waive service?
When the defendant lacks good cause, the defendant is required to pay the expenses of future service
May a party use allegations in the pleadings and an affidavit in arguing a lack of PJDX?
Yes!
When is ordinary work product (i.e. not opinion/legal theories) discoverable?
Only if:
1) Substantial Need
2) Cannot obtain the information contain without undue hardship
- In other words, can obtain the info by other means
What are affadavits?
1) Based on affiant’s or declarant’s personal knowledge
2) Contains admissible facts
3) Show that the affiant or declarant is competent to testify
Can be used to summary judgment!
Is a summary judgment a final judgment on the merits?
Yes!
So applies for the purpose of claim and issue preclusion.
When is venue proper for suing a federal officer or employee?
Official Capacity:
- Where any defendant applies
- Substantial portion
- Property resides if no real property
Individual Capacity
- General venue rules apply!
Is the relation back rule procedural or substantive?
Procedural!
Federal law applies!
When a case is removed from state to federal court, where is venue proper?
Venue is proper in the federal court in the district where the state action was pending.
Is awarding attorney fees substantive or procedural?
Procedural!
When may a crossclaim be permitted?
If they arise from the same transaction or occurrence.
Further, they are permissive!
For conflict of laws issues, is venue transfer procedural or substantive?
Procedural!
Federal law applies!
For conflict of laws issues, is remedies procedural or substantive?
Procedural!
Federal law applies!
How long does a plaintiff have to serve a complaint?
In the United States, 90 days!
However, plaintiff can extend the period if they can demonstrate good cause, such as when the delay occurred due to matters outside of plaintiffs control.
What are the steps for compulsory joinder?
1) Whether you are a required party
- Complete relief cannot be granted w/o party
- Would subject other parties to multiple or inconsistent obligations
OR
- Party’s absence will impar ability to protect an interest (like property!)
2) Whether joinder is feasible
- PJDX and SMJ
- Proper venue
3) Whether equity allows action to proceed without party, or must dismiss. Dismissal required if:
- Judgment would severely prejudice interest
- Court cannot reasonably lessen or avoid prejudice
- Judgment would be inadequate for plaintiff because they could be sued later
AND
- Buyer can pursue alternative remedy, such as refiling
When may a party grant a motion to modify or quash a subpoena?
At court’s discretion, if the subpoena requires disclosure of:
- Unretained expert testimony or info that 1) does not describe specific issues of dispute and 2) results from expert’s **independent study, not party’s request*
OR
- Trade secrets or other confidential information
Is determining the validity of a class procedural or substantive?
Procedural!
When is supplemental jurisdiction prohibited in diversity cases?
1) Would contaminate diversity
2) Seeks 75k or less, and is made by a plaintiff:
- Against parties added through joinder, intervention, or impleader (I.E. NOT AN ORIGINAL DEFENDANT)
OR
- Seeking to join through compulsory joinder or intervention (I.E. NOT PERMISSIVE JOINDER**
What is the standard a court must use in determining whether th grant a renewed motion for JMOL?
Whether there is substantial evidence in the record to support the verdict, resolving all disputed issues in widow’s favor.
When may a party obtain sanctions following a request for admission re: discovery?
If responding party fails to admit a matter that is later proven true, then the requesting party may require the party to pay reasonable expenses incurred.
Must be made after the matter is concluded.
Court must grant UNLESS
- Court sustained prior objection to request
- Admission not substantially relevant
- Responding party reasonably believed it would prevail
- Other reason to refuse to admit, such as when could not reasonably obtain information
Are privileges substantive or procedural?
Substantive!!
Apply state law!
When is a subpoena valid?
1) Contains:
- Court where subpoena issued, title of action, time and place, person’s rights and duties
- Signed by county clerk OR attorney authorized to practice law in court where action pending
- Properly served
2) Person being subpoenaed:
- Is within 100 miles of courthouse based on residency, employment, or regular business
