CivPro Intro Cards Flashcards

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1
Q

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

A

Subject-Matter Jurisdiction (SMJ) and Personal Jurisdiction

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2
Q

Can a party waive federal subject matter jurisdiction?

A

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

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3
Q

What are the two types of Federal Subject Matter Jurisdiction?

A

Federal Question Jurisdiction and Diversity Jurisdiction

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4
Q

What is Federal-Question Jurisdiction?

A

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.

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5
Q

What is Federal Diversity SMJ?

A

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)

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6
Q

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.

A

same transaction or occurrence

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7
Q

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

A

Removal

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8
Q

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

A

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).

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9
Q

What are the three types of personal jurisdiction?

A

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

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10
Q

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

A

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.

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11
Q

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

A

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

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12
Q

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

A

Voluntary

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13
Q

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.

A

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

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14
Q

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

A

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

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15
Q

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

A

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.

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16
Q

What are the due process requirements for service of process?

A

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

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17
Q

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

A

(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)

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18
Q

What is venue?

A

Venue is the geographic location of the court

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19
Q

Where is venue proper? (three explanations)

A

(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.

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20
Q

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

A

A defendant can seek dismissal or transfer

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21
Q

What is forum non conveniens

A

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

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22
Q

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 __ _____ ___ ______ _____.

A

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

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23
Q

What substantive law applies in a federal diversity case?

A

State substantive law.

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24
Q

What procedural law applies in a federal diversity case?

A

Federal procedural law.

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25
Q

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 ______ ______ __________.

A

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

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26
Q

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 ____ _____ )

A

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

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27
Q

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

A

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

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28
Q

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 ____ _____.

A

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

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29
Q

What is a TRO?

A

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

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30
Q

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 ________ _____ ______

A

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

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31
Q

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

A

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

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32
Q

What is Joinder?

A

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

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33
Q

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

A

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.

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34
Q

What are the requirements for adding parties by Joinder?

A

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).

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35
Q

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

A

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

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36
Q

What is Impleader?

A

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.

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37
Q

What is Interpleader?

A

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.

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38
Q

What is Intervention?

A

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

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39
Q

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

A

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

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40
Q

Describe the Discovery phase

A

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.

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41
Q

What sort of items are in scope for Discovery?

A

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

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42
Q

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

A

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

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43
Q

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).

A

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

44
Q

How can a plaintiff dismiss a case?

A

Via filing a motion for voluntary dismissal.

45
Q

How can a defendant seek to dismiss a case?

A

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

46
Q

In general, is a voluntary dismissal prejudicial?

A

No, it is not.

47
Q

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

A

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

48
Q

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.

A

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

49
Q

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

A

Mediation and Arbitration.

50
Q

What is the role of the Jury in a trial?

A

To be the finder of fact.

51
Q

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

A

To decide the law.

52
Q

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

A

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

53
Q

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

A

Yes – these are normal trials.

54
Q

Is there a right to a jury for equitable claims?

A

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.

55
Q

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

A

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.

56
Q

How many people sit on a federal civil jury?

A

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.

57
Q

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

A

Three.

58
Q

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

A

An unlimited number, the judge will decide.

59
Q

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

A

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

60
Q

What are Rule 12 Motions?

A

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

61
Q

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

A

Lack of Subject Matter Jurisdiction.

62
Q

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

A

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.

63
Q

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

A

Any material may be stricken

64
Q

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

A

Lack of SMJ

65
Q

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

A

Lack of PJ

66
Q

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

A

Improper venue

67
Q

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

A

Insuficient process

68
Q

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

A

Insufficient service

69
Q

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

A

Failure to state a claim upon which relief can be granted

70
Q

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

A

Failure to join a party under FRCP 19

71
Q

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

A

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

72
Q

What is summary judgment?

A

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.

73
Q

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.

A

(i) judgment as a matter of law

74
Q

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) ____ ______ __ __ _____.

A

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

75
Q

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

A

Within 28 days of the filing of the judgment.

76
Q

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

A

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

77
Q

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

A

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

78
Q

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

A

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

79
Q

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) _______.

A

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

80
Q

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

A

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.

81
Q

FRCP 55 Default Judgment: when does it occur?

A

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.

82
Q

What are the three types of verdicts?

A

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

83
Q

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

A

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

84
Q

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) ________.

A

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

85
Q

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) _______ _ ____ ______.

A

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

86
Q

Who determines what sort of verdict form is used?

A

The court

87
Q

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

A

Res Judicata

88
Q

What is the purpose of claim preclusion / Res Judicata?

A

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

89
Q

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

A

Collateral Estoppel

90
Q

What is Issue Preclusion / Collateral Estoppel?

A

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

91
Q

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

A

The Full Faith and Credit Clause

92
Q

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

A

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

93
Q

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

A

Interlocutory Appeals

94
Q

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 ________

A

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

95
Q

What is an interlocutory appeal collateral order?

A

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.

96
Q

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

A

(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

97
Q

What is a writ of mandamus?

A

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.

98
Q

On what material does the appellate court rely for review?

A

The trial court record.

99
Q

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

A

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

100
Q

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

A

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

101
Q

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

A

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

102
Q

What is a “Standard of Appellate Review”?

A

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

103
Q

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

A

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

104
Q

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

A

Clearly erroneous review.

105
Q

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

A

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.

106
Q

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

A

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

107
Q

What standard of review is applied to harmless error?

A

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.