CivPro Intro Cards

Question 1

To hear a civil case, a court must have what two types of jurisdiction?

Answer 1

Subject-Matter Jurisdiction (SMJ) and Personal Jurisdiction

Question 2

Can a party waive federal subject matter jurisdiction?

Answer 2

No. A federal court can only hear a case if it has subject matter jurisdiction. State courts, in contrast, are courts of general jurisdiction

Question 3

What are the two types of Federal Subject Matter Jurisdiction?

Answer 3

Federal Question Jurisdiction and Diversity Jurisdiction

Question 4

What is Federal-Question Jurisdiction?

Answer 4

A federal court has SMJ over a well-pleaded complaint If the claim arises under the Constitution, laws, or treaties of the USA. This is § 1331 jurisdiction.

Question 5

What is Federal Diversity SMJ?

Answer 5

Federal Diversity SMJ occurs if (i) there is complete diversity of citizenship between the parties (no plaintiff is the citizen of the same state as any defendant) and (ii) if the claim satisfies the amount-in-controversy requirement (equal to or greater than $75k)

Question 6

Supplemental jurisdiction: §1331 of §1332 allows claims to be attached to a suit if the claim arises from the _____ _____ or _______ as the claims that have SMJ.

Answer 6

same transaction or occurrence

Question 7

What’s the process of moving a claim from state to federal court called?

Answer 7

Removal

Question 8

When can a defendant remove a claim from state to federal courts?

Answer 8

When the court has subject matter jurisdiction. Removal is made to the federal court in the district and division where the state court is located (where the claim originated).

Question 9

What are the three types of personal jurisdiction?

Answer 9

In Personam (in-person); in rem (over property) and quasi-in-rem (attachment of property as a basis for jurisdiction over the owner)

Question 10

When does a state have personal jurisdiction over a defendant? (three types)

Answer 10

When he is domiciled in the state; when he is physically present in the state when served with process; or when he gives express or implied consent to the state’s jurisdiction.

Question 11

When can a court have long-arm personal jurisdiction over a non-resident?

Answer 11

As allowed by the state statute so long as it satisfies the terms of federal due process.

Question 12

A state create specific personal jurisdiction through the long-arm statute by establishing that the defendant has ________ ties to the state

Answer 12

Voluntary

Question 13

A state create general personal jurisdiction through the long-arm statute by showing that the defendant’s (i) ______ with the (ii) _______ are so (iii) _____ and _______ that the defendant can be ruled to be (iv) __ -____ in the state.

Answer 13

(i) contacts (ii) state; (iii) continuous and systematic; (iv) at-home

Question 14

How does the long-arm personal jurisdiction satisfy due process concerns?

Answer 14

There must be sufficient minimum contacts such that asserting jurisdiction would not offend “traditional notions of fair play and substantial justice.*

Question 15

How can in rem and quasi-in-rem issues create personal jurisdiction?

Answer 15

The state can allow a plaintiff to adjudicate against a defendant’s property in the state, or to use the defendant’s property as a proxy (quasi-in-rem) for the issue under litigation.

Question 16

What are the due process requirements for service of process?

Answer 16

Due process requires that the defendant (i) receive notice and (ii) have he opportunity to be heard.

Question 17

How can a plaintiff serve process on a defendant? (three ways)

Answer 17

(i) Actual Services (personal delivery of the summons and complaint to the defendant); (ii) Substituted service (e.g., mail); (iii) Constructive service (e.g., by publishing notice in a newspaper)

Question 18

What is venue?

Answer 18

Venue is the geographic location of the court

Question 19

Where is venue proper? (three explanations)

Answer 19

(i) where any defendant resides, if all the defendants reside in one state); (ii) where a substantial part of the events or omissions basing the claim occurred, or where the property is located; (iii) or where any defendant is subject to personal jurisdiction, if no more appropriate venue is available.

Question 20

What remedy can a defendant seek where venue is improper? (two remedies)

Answer 20

A defendant can seek dismissal or transfer

Question 21

What is forum non conveniens

Answer 21

Forum non conveniens is the ability of a defendant to request dismissal even if venue is legally proper, because it would be better to hear the case in another jurisdiction

Question 22

A venue is available for a transfer of value in: (i) any venue in which the ___ _____ _____ _____ _____; (ii) a venue that is convenient for the ______ and _______; (ii) a venue that is in the interest of _______ ; (iv) any venue __ _____ ___ ______ _____.

Answer 22

(i) case could have been filed; (ii) parties and witnesses: (iii) justice; and (iv) to which the parties agree

Question 23

What substantive law applies in a federal diversity case?

Answer 23

State substantive law.

Question 24

What procedural law applies in a federal diversity case?

Answer 24

Federal procedural law.

Question 25

If federal law conflicts with state law, the federal rule applies if the rule is: (i) _______, (ii) the issue rule is ______ ________, and (iii) its use have no change to the ______ ______ __________.

Answer 25

(i) valid, (ii) arguably procedural; and (iii) defendant's substantive rights.

Question 26

If there is no federal rule addressing whether a law is substantive or procedural, the Court applies the (i) _____ standard: (ii) whether the choice of federal or state laws is ________; (iii) whether the _____ law expresses a _____ _____ _____; (iv) whether a _________ federal policy should overcome the state law; and (v) which choice would best serve the twin aims of Erie (_______ _______ ________ and ____ _____ )

Answer 26

(i) Erie; (ii) determinative; (iii) state, strong state interest; (iv) countervailing; (v) discouraging forum shopping and advancing equity

Question 27

In federal diversity cases, how does a court choose which state's substantive law to apply?

Answer 27

The federal court will use the state's conflict-of-law rules.

Question 28

To obtain a preliminary injunction the moving party must show: The moving part must show: (i) the injunction is _____ to ________ on the ______; (ii) without the injunction the moving party will experience _______ _____ ; (iii) the _______ ______ _____ the cause harmed by the injunction; (iv) the injunction is in the ____ _____.

Answer 28

(i) likely to succeed on the merits; (ii) irreparable harm; (iii) threatened injury outweighs; (iv) public interest

Question 29

What is a TRO?

Answer 29

A temporary restraining order. A short-term injunction that prohibits the counter-party from doing something until the injunction is adjudicated.

Question 30

The three categorical requirements of a federal Complaint are: (i) the grounds for ____ _____ and _____ _______: (ii) a _____, ______ _______ of the claim, including sufficient facts to make the claim plausible on its face; and (iii) a ________ _____ ______

Answer 30

(i) subject matter and persona jurisdiction; (ii) short, plain statement; (iii) demand for relief

Question 31

What is the object of the defendant's answer? (three responses)

Answer 31

(i) state any defenses; (ii) admit or deny the complaint's allegations; and (iii) plead any affirmative defenses

Question 32

What is Joinder?

Answer 32

The process of assembling parties and claims against a civil case, in initial pleadings, or thereafter.

Question 33

How is a party joined under FRCP 18 (Permissive Joinder)?

Answer 33

Any party can file all claims it has against another party in a single suit, assuming all claims meet *subject-matter jurisdiction* requirements, even if the claims are not related. The court allows the Joinder, it requires no consent from the defendant. This refers to joinder of *claims*.

Question 34

What are the requirements for adding parties by Joinder?

Answer 34

There must be personal and subject-matter jurisdiction over the party, venue must be proper. The court can join either through permissive joinder (FRCP 20) or compulsory Joinder (FRCP 19).

Question 35

What is the Real Party in Interest requirement of a Complaint?

Answer 35

A Complaint must be brought against the defendant who has the substantive rights on which the action is based.

Question 36

What is Impleader?

Answer 36

Impleader is the ability of the defendant to attach another claim to the case against a third-party. The original defendant becomes the third-party plaintiff and the new, third-party added is the third-party defendant. This is the process that is used for indemnity claims.

Question 37

What is Interpleader?

Answer 37

Under FRCP 22 or Title 28, if multiple claimant are asserting the right to the same property or money, the court may join all the claimants in one case.

Question 38

What is Intervention?

Answer 38

FRCP 24 -- a party who is neither the plaintiff for defendant may move to join the action.

Question 39

The requirements to bring a federal class action case (in a addition to all other suit requirements are: (i) the class must be so ________ that ________ of all of its members is ___________; (ii) the case presents _____ _______ of ____ or _____ ; (iii) the ______ _____ claims or defense are _____ of the class; and (iv) the representative party will fairly and adequately protect the class's interest

Answer 39

(i) numerous, joinder, impractical; (ii) common questions of law or fact; (iii) representative party's, typical

Question 40

Describe the Discovery phase

Answer 40

Discovery is the process by which parties to a lawsuit provide and obtain information about their claims and defenses. The parties *must* hold an initial discovery conference and create a discovery plan to submit to the court.

Question 41

What sort of items are in scope for Discovery?

Answer 41

Any (i) non-privileged information; (ii) relevant to and parties claims and (iii) proportional to the needs of the case. Information may be discoverable even if it is inadmissible

Question 42

Without waiting for a discovery request, parties must disclose (i) _____-______, (ii) ________, (iii) ________, and (iv) _________.

Answer 42

(i) expert-testimony; (ii) witnesses; (iii) evidence; and (iv) exhibits

Question 43

Discovery can be collected by: (i) _______ (FRCP 30 and 31); (ii) ____________ (FRCP 33); (iii) ________ to _______ documents and tangible things (FRCP 34); _______ and _______ examinations (FRCP 35); and requests for _______ (FRCP 36).

Answer 43

(i) Depositions; (ii) interrogatories; (iii) request to produce; (iv) physical and mental; (v) admission

Question 44

How can a plaintiff dismiss a case?

Answer 44

Via filing a motion for voluntary dismissal.

Question 45

How can a defendant seek to dismiss a case?

Answer 45

Moving for involuntary dismissal for failure to prosecute, comply with the FRCP, or comply with a court order.

Question 46

In general, is a voluntary dismissal prejudicial?

Answer 46

No, it is not.

Question 47

In general, is an involuntary dismissal (against the Plaintiff) prejudicial?

Answer 47

Yes, usually, because it is an adjudication on the merit.s

Question 48

Offer of Judgment (niche): A Defendant has a right, so long as it is greater than (i) _____ _____ _____ _____ (or a hearing on damages) to serve the Plaintiff with an offer to allow judgment on (ii) ______ ______. If the Plaintiff declines and later obtains a *less* favorable judgment, the Plaintiff must pay the Defendant's (iii) ____ _____ incurred (iv) ________ the offer was made.

Answer 48

(i) 14 days before trial; (ii) specified terms; (iii) legal costs; (iv) after

Question 49

What are two common types of alternative dispute resolution (ADR)?

Answer 49

Mediation and Arbitration.

Question 50

What is the role of the Jury in a trial?

Answer 50

To be the finder of fact.

Question 51

What is the rule of the Judge in a Jury trial?

Answer 51

To decide the law.

Question 52

When are civil cases grated the constitutional right to a jury trial?

Answer 52

In any federal case where the amount in controversy exceeds $20, or where the right to jury was established by statute.

Question 53

Is there a right to a jury trial for legal claims?

Answer 53

Yes -- these are normal trials.

Question 54

Is there a right to a jury for equitable claims?

Answer 54

No. Equitable claims must be heard by judges. If there is a controversy which involves both legal and equitable claims, the legal claims may be heard first by a jury, and then the equitable claims can be heard by the judge.

Question 55

How does a party secure a jury trial? (what process)

Answer 55

A party seeking a jury trial must (i) serve a written jury demanding on the other parties within 14 days after service of the last pleading related to the issue and (ii) file the demand with the court.

Question 56

How many people sit on a federal civil jury?

Answer 56

It ranges from six to twelve members. A verdict must be returned by a least six members. The verdict must be unanimous unless the partied stipulate otherwise.

Question 57

How many preemptory challenges is each party grants din the voice dire process?

Answer 57

Three.

Question 58

How many members of the jury pool can a party challenge for cause?

Answer 58

An unlimited number, the judge will decide.

Question 59

What are the no-nos (not allowed) for the use of preemptory challenges?

Answer 59

A party cannot base a preemptory challenge on race, ethnicity, or gender.

Question 60

What are Rule 12 Motions?

Answer 60

Rule 12 motions (defenses on jurisdiction, venue, and the pleadings contents) are filed *before* responsive pleadings. These are motions to dismiss, in various forms.

Question 61

What are examples of Rule 12 Motions that can be filed at any time?

Answer 61

Lack of Subject Matter Jurisdiction.

Question 62

Why would a party file a 12(e) motion?

Answer 62

This is the Motion for a More Definite Statement, if the pleading is so vague or ambiguous that the party cannot reasonably prepare a response.

Question 63

On what grounds can the court grant a motion to strike 12(f)?

Answer 63

Any material may be stricken

Question 64

What is a 12(b)(1) MTD?

Answer 64

Lack of SMJ

Question 65

What is a 12(b)(2) MTD?

Answer 65

Lack of PJ

Question 66

What is a 12(b)(3) MTD?

Answer 66

Improper venue

Question 67

What is a 12(b)(4) MTD?

Answer 67

Insuficient process

Question 68

What is a 12(b)(5) MTD?

Answer 68

Insufficient service

Question 69

Wat is a 12(b)(6) MTD?

Answer 69

Failure to state a claim upon which relief can be granted

Question 70

What is a 12(b)(7) MTD?

Answer 70

Failure to join a party under FRCP 19

Question 71

A (i) ______ on the _______ (12(e)) can be (ii) ______ into a (iii) ______ for ______ ______ if matters (iv) ______. the pleadings are presented

Answer 71

(i) motion on the pleadings; (ii) converted; (iii) motion for summary judgment; (iv) outside

Question 72

What is summary judgment?

Answer 72

A motion on the merits -- without trial. Can only be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

Question 73

A party may request a ______ __ _ _______ __ ____ (FRCP 50) before the case goes to jury if there is no sufficient evidentiary basis for a reasonable jury to find for a party on a claim or defense.

Answer 73

(i) judgment as a matter of law

Question 74

A party must renew a motion for a judgment as a matter of law within (i) __ _____- after the (ii) _______; but a party may only move if he also moved for a JMOL prior to the (iii) ____ ______ __ __ _____.

Answer 74

(i) 28 days; (ii) judgment; (iii) case going to the jury

Question 75

FRCP 59: when can a party request a new trial?

Answer 75

Within 28 days of the filing of the judgment.

Question 76

FRCP 59: A party can seek a new trial if: (i) if the verdict is against the ____ _____ __ ___ ______; (ii) if the damages are _________; (iii) if the trial was _______; (iv) or if a _______ _____ occurred

Answer 76

(i) clear weight of the evidence; (ii) excessive; (iii) unfair; (iv) prejudicial error

Question 77

FRCP 59: when can a party ask for a judgment to be amended?

Answer 77

Within 28 days after the fill-in go the judgment.

Question 78

FRCP 60: motion to correct mistake -- what is it?

Answer 78

A party may move to correct a clerical mistake or omission from the record.

Question 79

FRCP 60: Relief from Judgment. A party to seek relief from judgment because of: (i) _______ , (ii) new _______, (iii) _____, (iv) ______ by the opposing party, if the judgment is (v) ____ __ _______, or if the judgment has been (vi) _________ or is no longer (vii) _______.

Answer 79

(i) mistake; (ii) new evidence; (iii) fraud; (iv) misconduct; (v) void or discharged; (vi) reversed; (vii) equitable

Question 80

What's the difference between a verdict and a judgment?

Answer 80

A verdict is finding of fact by the jury. A judgment is the court's final order. A court may enter judgment with or without a jury verdict.

Question 81

FRCP 55 Default Judgment: when does it occur?

Answer 81

If a defendant fails to plead or defend, the court clerk *must* enter default. The court may set aside a default judgment for good cause.

Question 82

What are the three types of verdicts?

Answer 82

(i) General; (ii) Special; (iii) General with Answers

Question 83

A _________ verdict decides the case in favor of one party and states the amount of damages *without* stating the (ii) ___ ______ _______ __ ______.

Answer 83

(i) general; (ii) the jury's finding of fact

Question 84

A (i) ______ _______ requires the jury to decide (ii) ______ __ ______ without resolving the case in favor of one party. The (iii) _______ applies the law to the jury's findings of fact and issues the (iv) ________.

Answer 84

(i) special verdict; (ii) issues of fact; (iii) court; (iv) judgment

Question 85

In a (i) ________ with ________, the (ii) _____ may return a general verdict and provide written answers to (iii) _______ __ _______. If the verdict and the answers are (iv) _________, the court *must* enter judgment on the verdict. If there's an (v) _________ the court may enter judgment according to the answers, direct the jury to (vi) _________, or (vii) _______ _ ____ ______.

Answer 85

(i) verdict with answers, (ii) jury; (iii) questions of fact; (iv) consistent; (v) inconsistency; (vi) reconsider; (vii) order a new trial

Question 86

Who determines what sort of verdict form is used?

Answer 86

The court

Question 87

Claim Preclusion is also known by what latin 2-word term?

Answer 87

Res Judicata

Question 88

What is the purpose of claim preclusion / Res Judicata?

Answer 88

To prevent re-litigation of claims that were (or could have been) decided in a prior action.

Question 89

What is the 2-word latin phrase for issue preclusion?

Answer 89

Collateral Estoppel

Question 90

What is Issue Preclusion / Collateral Estoppel?

Answer 90

To stop the re-litigation of issues that have already been litigated and determined.

Question 91

What doctrine requires one state to honor the legislative acts, records, and judicial proceedings in another state?

Answer 91

The Full Faith and Credit Clause

Question 92

What sort of legal opinion is appealable to the appellate court?

Answer 92

Generally, only final judgment that ends the entire litigation on the merits.

Question 93

What sort of appeals are exceptions to the final judgment rule?

Answer 93

Interlocutory Appeals

Question 94

The four types of interlocutory appeals are: (i) ____ _____ _______ in a case with multiple parties/issues); (ii) certified _______ __ ______ (28 USC § 1291); (iii) ________ orders; and (iv) _____ of ________

Answer 94

(i) partial final judgments; (ii) questions of law; (ii) collateral; (iv) writs of mandamus

Question 95

What is an interlocutory appeal collateral order?

Answer 95

An order that conclusively determines a question that's separate from the merits of the action. It must be a question that is important and likely irreparably lost if review were delayed until final judgment. Said another way, it must be an issue which would be made moot and un-reviewable if the party was required to wait until final judgment.

Question 96

What sort of items can be certified for 28 USC § 1291 interlocutory appeal? (three responses)

Answer 96

(i) controlling questions of law; (ii) places where there is substantial ground for difference of opinion on the question of law; and (iii) immediate appeals from orders that may materially advance the ultimate termination of the litigation

Question 97

What is a writ of mandamus?

Answer 97

An order from a higher court requiring a lower court to do (or refrain) from an act. A party may seek a writ of mandamus before final judgment.

Question 98

On what material does the appellate court rely for review?

Answer 98

The trial court record.

Question 99

In order to appeal an error what must the appealing party do during the trial?

Answer 99

Appeal the error contemporaneously with the error and state the grounds.

Question 100

In order to appeal an error based on a mis-ruling on evidence, what must the appealing party show?

Answer 100

That the court excluded evidence at trial and what the evidence would have shown had it been admitted.

Question 101

What sort of error can the appellate court review even if the appealing party did not object in the trial?

Answer 101

A plain error. One that seriously affects the parties' substantial rights or causes unfair prejudice.

Question 102

What is a "Standard of Appellate Review"?

Answer 102

The sort of standard atet the court of appeals applies to review the question being appealed.

Question 103

What standard of review is applied to issues of law and mixed issues of law and fact?

Answer 103

De Novo review (for the first time); no deference to the trial court.

Question 104

What standard of review is applied to facts decided by a Judge?

Answer 104

Clearly erroneous review.

Question 105

What standard of review is applied to facts decided by a a Jury?

Answer 105

The Seventh Amendment largely prohibits review of a jury's finding of fact. It will only be overturned if there is a complete lack of proof such that no reasonable jury could decide the same way.

Question 106

What standard of review is applied to discretionary rulings by a judge?

Answer 106

An abuse of discretion standard. The appellate court will not reverse unless the judge's decision was clearly unreasonable.

Question 107

What standard of review is applied to harmless error?

Answer 107

Trick question. An appellate court will not reverse a lower court if the error probably did not make a difference in the case's outcome.