Critical Pass - Civ Pro

Question 1

When must the parties present a written discovery plan to the court

Answer 1

within 14 days of the meet and confer

Question 2

objections that can be cured during a depo … (such as an objection to a leading Q)

Answer 2

must be raised or else the objection is waived (cannot be raised later)

Question 3

A reading of deposition testimony is generally admissible at trial if

Answer 3

deponent is unavailable at trial

Question 4

material is discoverable if (3)

Answer 4

non-privileged, relevant, and proportional to the needs of the case

Question 5

Initial disclosures—parties must disclose:

Answer 5

1. identities of persons with discoverable info
2. documents and tangible things that the party may use to support claims or defenses.
3. computation of relief and supporting docs/ESI—computation of damages claimed
4. Insurance coverage—any insurance agreement that may be used to satisfy all or part of a judgment

Question 6

Initial Disclosures Timing

Answer 6

within 14 days of parties mandatory 26(f) conference

Question 7

Expert Disclosures Timing

Answer 7

at least 90 days before trial, parties must identify experts who may be used at trial through expert report containing opinions, data, qualifications, how much they will be paid, etc.

Question 8

Pretrial Disclosures Timing - detailed info about trial evidence

Answer 8

parties must give detailed information about evidence to be used at trial at least 30 days before trial

Question 9

Pretrial Disclosures (4)

Answer 9

1. witnesses used at trial
2. witnesses that will be called if needed arises
3. witnesses whose testimony will be presented by depo + depo transcript
4. docs that may/may not be introduced at trial

Question 10

4 discovery tools

Answer 10

1) interrogatories
2) depositions
3) requests for admission
4) med exams if party’s medical condition is an issue in the case

Question 11

how to compel non parties vs. parties to attend deposition

Answer 11

nonparties: must be subpoenad
parties: notice of deposition will compel attendance

Question 12

subpoena duces tecum

Answer 12

used to compel a deponent to bring documents to deposition

Question 13

limitation on deposition timing

Answer 13

one day for seven hours max

Question 14

work product privilege rule

Answer 14

items prepared in anticipation of litigation or for trial are not discoverable unless the opposing party shows:
Substantial need for material; and
Inability, without undue hardship, to obtain the substantial equivalent of materials by other means

Question 16

work product can protect expert: (2)

Answer 16

1. reports and 2. conversations unless they relate to compensation or deal with facts and data

Question 17

3 requirements to invoke attorney client privilege

Answer 17

to invoke the attorney-client privilege, a party must demonstrate the communication was:
1. Made between client and counsel;
2. Intended to be and was, in fact, kept confidential; and
3. Was made for the purpose of obtaining or providing legal advice

Question 18

prevailing party on a discovery motion can recover costs, attorneys fees, and sanctions only if…

Answer 18

they certify in good faith to confer with the opponent to resolve the issue before trial (or that they tried)

Question 19

voluntary dismissal

Answer 19

when P voluntarily dismisses her case, with our without court approval

Question 20

Voluntary dismissal is without prejudice if

Answer 20

this is the first time that P has dismissed her case and before defendant answers

Question 21

for voluntary dismissal after the defendant’s answer or motion…

Answer 21

court order or stipulation is needed

Question 22

even with voluntary dismissal, what can remain pending

Answer 22

a counterclaim (may need D’s consent)

Question 23

default judgment may be entered against D when

Answer 23

D fails to plead or otherwise defend a properly served complaint

Question 24

a clerk enters default on the docket if P shows:

Answer 24

D failed to respond within 21 days of being served (60 days if service is waived)

Question 25

Default does not automatically entitle…

Answer 25

P to recover, clerk or judge must enter judgment of default

Question 26

If D already appeared in the action, what needs to happen for default judgment (2)

Answer 26

need judge to enter, not the clerk AND D needs additional notice of motion for default judgment (7 days)

Question 27

If D does not appear, default can be entered BY____ if:

Answer 27

By clerk of courts if:
1. D has not responded at all
2. Claim is for money damages;
3. P gives an affidavit of sum owed; and
4. D is not a minor or incompetent

Question 28

Appearance for purposes of default judgment can be

Answer 28

D filing a motion to dismiss

Question 29

What is a motion to dismiss if made after D’s answer

Answer 29

Rule 12(c) motion for judgment on the pleadings

Question 30

what does the judge consider in ruling on a 12(b)(6) motion

Answer 30

whether the party states a plausible claim on the face of the complaint ONLY

Question 31

standard for motion to dismiss

Answer 31

failure to state a claim on the face of the party’s complaint

Question 32

standard for MSJ

Answer 32

1) no genuine dispute on material fact; and
2) entitled to judgment as a matter of law

Question 33

timing of motion for summary judgment

Answer 33

must be filed no later than 30 days after close of discovery

Question 34

Burden-shifting—if party moves for summary judgment, burden shifts to…

Answer 34

nonmoving party to show that a triable issue exists

Question 35

for msj, evidence is viewed

Answer 35

in light most favorable to non moving party

Question 36

partial SMJ

Answer 36

courts can grant summary judgment on only certain claims or issues

Question 37

to rule on an MSJ, courts will look

Answer 37

to the whole record of admissible evidence

Question 38

7th amendment does not allow jury trials where

Answer 38

equitable relief is sought

Question 39

demand for jury trial timing

Answer 39

must be made within 14 days of service of the last pleading raising a triable issue, otherwise waived

Question 40

min and max number of jurors

Answer 40

6 and 12

Question 41

jury verdict req’s

Answer 41

unless the parties stipulate otherwise, the verdict must be returned by at least 6 members and be unanimous

Question 42

who decides what:
1) underlying facts on claim at law
2) equity claims

Answer 42

1) jury
2) judge

Question 43

when will the jury receive jury instructions?

Answer 43

before final arguments

Question 44

parties have final opportunity to object

Answer 44

on the record before final arguments and before instructions are given to the jury (failure to object waives the issue for appeal)

Question 45

forms of verdicts:

Answer 45

1. general, 2. special, 3. general with written questions

Question 46

general verdict

Answer 46

just says who wins and, if plaintiff wins, what the
relief is

Question 47

special verdict

Answer 47

the jury answers, in writing, specific written
questions about the facts in dispute, but it does not say who wins or
loses.

Question 48

general verdict with written questions

Answer 48

the jury not only gives a
general verdict, but it also answers specific questions submitted to it.
The questions ensure that the jury focused on the important issues.

Question 49

what cases does JMOL apply to

Answer 49

jury trials

Question 50

If judge grants JMOL, what happens

Answer 50

case will not go to the jury, the judge will enter judgment

Question 51

standard of review for JMOL

Answer 51

reasonable people could not disagree on the result

Question 52

Timing of JMOL

Answer 52

anytime before case is submitted to jury, but cant be granted until the opponent presents all evidence

Question 53

What is RJMOL

Answer 53

After court enters judgment based on jury verdict, losing party can file RJMOL for entry of judgment in his favor

Question 54

Timing of RJMOL

Answer 54

must be filed within 28 days after entry of judgment (after trial)

Question 55

RJMOL can only be filed if

Answer 55

JMOL was originally filed and it must be based on the same grounds as the JMOL

Question 56

What waives RJMOL?

Answer 56

failure to move for JMOL at trial

Question 57

what is the point of motion for new trial

Answer 57

process needs to restart, judgment was entered but serious error occurred at trial

Question 58

timing of motion for new trial

Answer 58

Must be filed within 28 days after entry of judgment

Question 59

which is more drastic: RJMOL or Motion for new trial

Answer 59

New trial because it’s just starting over. RJMOL is taking judgment away from one party and giving it to another

Question 60

for motion for new trial, its alot of work. the court might suggest: (2)

Answer 60

remititur and additur

Question 61

remittitur

Answer 61

The court offers the
plaintiff a choice: remit part of the damages award or go through a
new trial.

Question 62

addiditur

Answer 62

The court offers the
defendant a choice: add to the damage award or go through a new
trial.

Question 63

addititur may be allowed in… but not..

Answer 63

allowed in state court, but not federal court

Question 64

after judgment is entered, relief can be granted for: (5)

Answer 64

1. clerical error
2. mistake, excusable neglect
3. fraud, misrepresentation, or misconduct by opposing party
4. new evidence undiscoverable at time of trial
5. judgment is void

Question 65

what motion for relief from order or judgment can be brought at any reasonable time

Answer 65

1. clerical error and 5. judgment is void

Question 66

what motions for relief must be brought within a specified time? what is the time frame?

Answer 66

2. mistake, excusable neglect
3. fraud, misrepresentation, or misconduct by opposing party
4. new evidence that was undiscoverable at trial

any reasonable time within 1 year of entry of judgment

Question 67

typically what is needed for an appeal

Answer 67

final judgment

Question 68

what is not needed to appeal a preliminary injunction

Answer 68

final judgment - it is immediately appealable.

Question 69

appellate court standards of review: questions of law and questions of fact

Answer 69

questions of law - de novo
questions of fact - will not be disturbed unless:
Non-jury decisions (e.g., bench trial)—clearly erroneous

Jury trials—reasonable jury could not have reached the same conclusion

Question 70

appellate court standard of review: mixed questions of law and fact

Answer 70

de novo

Question 71

appellate review: evidentiary rulings

Answer 71

abuse of discretion

Question 72

notice of appeal must be filed in trial court

Answer 72

within 30 days of entry of final judgment

Question 73

orders that are appealable “as of right” - what does this mean

Answer 73

immediately appealable, even before final judgment

Question 74

orders reviewable as of “right” (4)

Answer 74

Injunctions—orders concerning an injunction
Receivers—orders concerning appointment of receivers
Patent—orders where only an accounting is left in the case
Property—orders affecting property (e.g., attachment)

Question 75

Interlocutory Appeals Act

Answer 75

appellate court may hear appeal of a non-final order if trial judge certifies that the order involves a controlling issue of law with substantial ground for difference of opinion

Question 76

claim preclusion is an

Answer 76

affirmative defense

Question 77

3 req’s for claim preclusion

Answer 77

1. earlier judgment is a final, valid, judgment on the merits
2. same claim
3. same P against same D

Question 78

The same claim for claim preclusion can include

Answer 78

claims arising out of the same transaction or occurrence

Question 79

The same party req for claim preclusion can include

Answer 79

an entity in privity with the party (employer and employee)

Question 80

issue preclusion is different from claim preclusion in the sense that

Answer 80

the issue for issue preclusion must have been ACTUALLY litigation. For claim preclusion, only requires opportunity to litigate

Question 81

4 req’s for issue preclusion

Answer 81

1) Final judgment on the merits—first case ended with a valid, final judgment on the merits
2) Same issue—same issue was actually litigated and determined in the first case
3) Issue was essential to the judgment—i.e., judgment would have been different in the first case absent litigation of this issue
Must be clear how the issue was decided by the original trier of fact
4) Used by party to case 1? this is ok. Used by nonparty to case 1 - more tests

Question 82

issue preclusion can be used in what two ways by a nonparty

Answer 82

1. offensively (nonparty to case 1 and is plaintiff in case 2)
2. defensively (nonparty to case 1 and is defendant in case 2)

Question 83

defensive use of issue preclusion by a nonparty is allowed if

Answer 83

the party against whom issue preclusion is asserted had a full chance to litigate the issue previously

Question 84

offensive use by a nonparty of issue preclusion requires (4)

Answer 84

FAIRNESS TEST

Factors:
1) partly to be bound had full and fair opportunity to litigate in case 1
2) party to be bound had a strong incentive to litigate in case 1
3) party asserting issue preclusion could have easily joined to case 1
4) no inconsistent judgments on the record

Question 85

5 req’s for certifying a class for a class action

Answer 85

1. numerosity (class size is huge)
2. commonality (common questions of law or fact)
3. typicality (typical claims and defenses)
4. adequacy (reps will fairly and adequately protect interests of entire class)
5. type - action fits in 1 of 3 class action types

Question 86

3 types of class actions

Answer 86

1. prejudice - class treatment is necessary to avoid prejudice to class members or non class party
2. injunctive or declaratory relief sought
3. damages sought for relief

Question 87

judgement in a class action will only bind

Answer 87

class members who do not opt out

Question 88

Notice req’s for class actions

Answer 88

all reasonably identifiable class members must be notified of pendency of the action and their rights (including opt out rights and right to appear via separate counsel)

Question 89

for SMJ for class actions, what will courts consider for diversity

Answer 89

the class reps citizenship

Question 90

Class Action Fairness Act (CAFA)

Answer 90

Separate means of obtaining SMJ in class action; jx exists

Question 91

CAFA will apply if: (4)

Answer 91

1) Any class member is diverse of any opposing party, and
2) Aggregated claims of the class exceed $5 million
3) Any D, even an in-state D, may remove
4) Generally, when most class members and primary D’s are citizens of the same state, the cases will get remanded or dismissed (that is, local actions stay local)

Question 92

CAFA does NOT apply to

Answer 92

1. class actions with less than 100 ppl
2. shareholder claims against corporate management

Question 93

If a class is certified, the court must:

Answer 93

1) Define the class (i.e., who can be a class member), the class claims, issues, and defenses
2) Appoint class counsel—class counsel must fairly and adequately represent interests of the class as a whole

Question 94

certification of a class is ____ via the ____ before final judgment on the merits

Answer 94

appealable via the Interlocutory appeal before final judgment on the merits

Question 95

In a Type 3 class action/damages relief sought, the court may refuse to approve settlement unless

Answer 95

members are given a second chance to opt out

Question 96

Permissive joinder is where

Answer 96

P seeks to join non parties as co-Ps or co-Ds (multiple plaintiffs or claim against multiple defendants)

Question 97

req’s for permissive joinder

Answer 97

1. same T/O
2. Common question of law or fact
3. court has SMJ over joined parties and claims

Question 98

Impleader is joinder of nonparties by…..
Permissive joinder is joinder of nonparties by….

Answer 98

Impleader = by D
Permissive Joinder = by P

Question 99

what is compulsory joinder

Answer 99

Absent parties may be forced to join a case if they are deemed required parties; named defendants threaten dismissal for failure to join

Question 100

3 questions to ask for compulsory joinder

Answer 100

1. Is the absentee necessary/required
2. if the absentee is necessary, can the absentee be joined feasibly; and
3. if the absentee cannot be joined, can the case proceed anyway?

Question 101

Who can never be considered “necessary” for joinder (TESTABLE POINT!)

Answer 101

joint tortfeasors

ex. husband and wife are both liable in a car accident. A joint tortfeasor (wife) subject to joint and several liability is not necessary/indispensible

Question 102

when is joinder “feasible” of the absentee(2)

Answer 102

There is PJ over the absentee; and
Joining the absentee will not destroy diversity

Question 103

Compulsory Counterclaim

Answer 103

counterclaim is one that arises from the same T/O as the plaintiff’s claim.

Question 104

unless the counterclaimant has already filed the claim in another case, the compulsory counterclaim

Answer 104

must be filed in the pending case or else waived. if you dont use it, you lose it

Question 105

permissive counterclaim

Answer 105

does not arise from the same
T/O as the plaintiff’s claim. Permissive means that a party is not
required to file it in this case and can sue on the claim in a separate
case.

Question 106

cross claims

Answer 106

claim against co-party that must arise from same T/O as the underlying action.

Question 107

impleader

Answer 107

Allows D to assert claims for indemnity, contribution, etc. against another party for the claim D is defending

Question 108

Process for Impleading TPB (2 steps)

Answer 108

To implead a third party, the defendant must (1) file a third-party complaint naming the TPD within 14 days after D serves answer, and (2) have that complaint formally served (that is, served like an original complaint) on the TPD.

Question 109

If third party complaint is filed more than 14 days after D answers, what is needed for impleader

Answer 109

Court permission needed

Question 110

impleader comes up in ONLY situations where

Answer 110

D is trying to shift their liability to the TPD. Situations where they are saying “I am liable, but third party is liable to me.”

NOT: “I am not at fault in any way, TPD is.”

Question 111

courts must have what 2 things in impleader situations

Answer 111

1. SMJ over the claim (supplemental)
2. PJ over TPD

Question 112

The complaint must contain:

Answer 112

1. statement of jdx (SMJ)
2. statement of claim (short and plain)
3. demand for judgment

Question 113

In stating the claim for a complaint, the P must plead

Answer 113

sufficient facts to support a plausible claim

Question 114

What claims require greater specificity in the complaint

Answer 114

fraud/mistake/special damages

Question 115

D must file an answer when

Answer 115

within 21 days of service of process, or 14 days after a Rule 12 motion is denied or postponed until trial

Question 116

req’s for defendants answer (2)

Answer 116

1) respond to allegations of complaint (admit/deny)
2) raise affirmative defenses

Question 117

if D waived service, what is the timing for their answer

Answer 117

the defendant has 60 days
from when the plaintiff mailed the waiver form to respond.

Question 118

defenses that are waived if not put in answer/D’s motion - whichever is first (IMPORTANT!!)

Answer 118

A lack of personal jurisdiction;
*
Improper venue;
*
Improper process (a problem with the papers); and
*
Improper service of process.

Question 119

lack of SMJ can be raised

Answer 119

at any time, even appeal

Question 120

D must ensure what type of counterclaim is filed in their answer or else waived

Answer 120

compulsory, permissive is not req’d in answer

Question 121

cross claims MUST have an independent basis for

Answer 121

SMJ (likely supplemental)

Question 122

Amendment for new or substituted D (WRONG PARTY NAMED) after Statute of Limitations has Run can relate back if: (3)

Answer 122

1. arise under same T/O under OG pleadings
2. New D did not receive timely notice of the action
3. New D knew or should have known that the new D was the named D all along

Question 123

P has the right to amend her complaint how many times? when?

Answer 123

once - no later than 21 days after the defendant serves her first Rule 12 response.

Question 124

D has the right to amend his answer how many times? when?

Answer 124

once as of course no later than 21 days of serving it.

Question 125

Relation back for a new claim if the: to circumvent the SOL req

Answer 125

if the new claim concerns the same conduct, transaction, or occurrence as the original pleading

Question 126

Rule 11 requires

Answer 126

the attorney or pro se party to sign all pleadings, written motions, and other papers

Question 127

when a lawyer or pro se party signs docs under rule 11, she certifies that:

Answer 127

she certifies that to the best of her knowledge and belief, after reasonable inquiry:
*
The paper is not for an improper purpose;
*
The legal contentions are warranted by law or a nonfrivolous
argument for a law change; and
*
The factual contentions and denials of factual contentions have
evidentiary support or are likely to after further investigation.

Question 128

for a rule 11 violation, what can be imposed

Answer 128

sanctions against the party/lawyer/firm

Question 129

For a rule 11 violation, the opposing party cannot immediately move for sanctions. Rather she must…

Answer 129

serve the motion and not file it. the party in violation has 21 days to fix the problem to avoid the sanctions.

Question 130

what must the court provide before imposing sanctions under rule 1

Answer 130

need a chance to be heard before imposing sanctions

Question 131

Two types of interlocutory injunctions (adjudication without trial)

Answer 131

1. TROs
2. Preliminary injunctions

Question 132

An order that maintains status quo until trial

Answer 132

preliminary injunction

Question 133

an order that maintains status quo until the hearing on the preliminary injunction

Answer 133

TRO

Question 134

TRO or preliminary injunction - can be issued ex parte?

Answer 134

TRO - no notice to other party

Question 135

TRO can be issued ex parte if:

Answer 135

Provides specific facts showing immediate and irreparable injury will result before adverse party can be heard; and
Certifies in writing all efforts to give adverse party notice

Question 136

Duration of TRO

Answer 136

no more than 14 days from issuance; court may extend for good cause or with adverse party consent; if extended beyond 28 days without adverse party’s consent, TRO is treated as preliminary injunction (and becomes appealable)

Question 137

for a preliminary injunction, the burden is on the applicant to show: (4)

Answer 137

Irreparable injury (a/k/a no adequate remedy at law)
Reasonable likelihood of success on the merits
Balance of hardships
Public interest

Question 138

an order granting or denying a preliminary injunction may be….

Answer 138

appealable as of right

Question 139

who may serve process

Answer 139

any non-party aged 18 or older

Question 140

Timing of service of process

Answer 140

service must be within 90 days of filing of the case
If not satisfied, case dismissed without prejudice, unless P shows good cause for delay

Question 141

common methods of service of process (4)

Answer 141

1) Personal service

2) Substituted service—left with third party at D’s “usual abode”

3) Service upon D’s authorized agent
Receipt of service must be within scope of agency

4) Any method permitted under state law—

Question 142

for substituted service of process, the person service is left with at D’s abode must be

Answer 142

must be “of suitable age and discretion,” and must reside at abode

Question 143

for methods of service of process under state law, what state law applies

Answer 143

state where fed court sits

Question 144

Waiver of service

Answer 144

P may request that D waives service by mailing D the complaint and a formal request to waive service

Question 145

If D agrees to waive service, her time is extended to answer the complaint to….

Answer 145

60 days from date of waiver request being sent (normal is 21 days)

Question 146

where is venue proper (3)

Answer 146

1. where any D resides (as long as all Ds reside in same state)
2. location of a substantial part of the events
3. if not 1 or 2, then wherever there is pj of defendant

Question 147

residency of ppl for venue

Answer 147

domicile

Question 148

residency of entity for venue

Answer 148

wherever subject to PJ

Question 149

3 questions to consider for venue transfer

Answer 149

1. was original venue district proper
2. was original venue district improper
3. did the parties consent? if so, ok

Question 150

If original venue is proper, a court can…

Answer 150

1. order transfer to another fed. district court based on interest of justice, convenience of parties and witnesses
2. may refuse transfer

Question 151

If original venue district is improper.. a court may

Answer 151

1. dismiss the case or
2. transfer to a proper venue in the interests of justice

Question 152

when will the transferee court apply its own rules for venue

Answer 152

when venue was improper; or if the transfer was to enforce a forum selection clause.. otherwise, they apply the original courts choice of law

Question 153

Erie only applies wehn

Answer 153

in fed court on diversity

Question 154

Erie says that…

Answer 154

when fed and state law conflict on the issue, federal law trumps state law

Question 155

Forum non conveniens only comes up

Answer 155

when the more appropriate forum is a foreign one

Question 156

A court will not grant forum non conveniens without a finding that

Answer 156

there is an adequate alternative forum

Question 157

3 types of SMJ

Answer 157

1. diversity
2. FQ
3. Supplemental

Question 158

2 req’s for diversity SMJ

Answer 158

1. no P from same state as D, OR alienage: 1 US state vs. 1 foreign
2. Amount in controversy EXCEEDS 75K

Question 159

fed. courts will not hear actions involving (WHAT 4 TYPES OF CASES) even if diversity requirements are otherwise satisfied

Answer 159

divorce, alimony, child custody, or probate,

Question 160

citizenship of ppl for diversity

Answer 160

1. physically present, with 2) intent to remain

Question 161

a person can only have ___ domicile

Answer 161

one, never more than oneB

Question 162

corporations are citizens for diversity where

Answer 162

1. incorporated
2. PPB

Always have 2 citizenship, or more

Question 163

Unincorporated businesses (LLC/LLP) are citizens for diversity

Answer 163

of all states where any member or partner is a citzen

Question 164

when can a party aggregate claims to meet 75K diversity req

Answer 164

One P can aggregate all claims against a single D (even if unrelated)

Question 165

The only time multiple Ps can aggregate together is when

Answer 165

they seek to enforce a single title or right in which they have a common, undivided interest (joint owners of land, they want to quiet title together)

Question 166

for equitable relief claims, what will courts consider for the 75K diversity req

Answer 166

value of harm caused from either P or D perspective (injunctive relief harm would be more than 75K?)

Question 167

Test for FQ jurisdiction

Answer 167

1. Ps claim arises under fed law
2. fed question appears on the face of complaint

Question 168

Exclusive federal jdx cases for FQ

Answer 168

Bankruptcy
Patent, copyright, trademark
Federal antitrust claims
Postal matters
Maritine/Admiralty

Question 169

test for supplemental jdx

Answer 169

common nucleus of operative fact (CNOF)
Each additional claim must share a CNOF with an existing claim that invoked FQJ or diversity jx
Same transaction or occurrence—supplemental claims share a CNOF if they arise from the same transaction or occurrence as the underlying claim

Question 170

Supplemental jurisdiction allows a fed. court to hear …

Answer 170

additional claims (e.g., counterclaims and cross-claims) that do not, on their own, meet diversity or FQJ requirements

Question 171

Limitation for supplemental jdx in diversity cases!!!!!! IMPORTANT

Answer 171

co-P’s presence in the suit cannot override the complete diversity requirement; diversity cannot be destroyed!

Question 172

court may refuse a supplemental claim if: (3)

Answer 172

Original SMJ claims are dismissed early in the proceeding,
Supplemental claim raises a novel or complex state law issue, or
Supplemental claim substantially predominates over original SMJ claims

Question 173

who only removes

Answer 173

defendant

Question 174

D can remove a case from ____ to ____

Answer 174

state to federal

Question 175

diversity jdx removal limitation

Answer 175

D cannot remove if P filed suit in any D’s home state

Question 176

Timing for removal

Answer 176

D must remove within 30 days of service of the first removable document (usually service of process)

Question 177

If multiple defendants, what needs to happen to remove

Answer 177

all D’s must agree

Question 178

D can only remove

Answer 178

if the case could have been filed in federal court

Question 179

D can only remove to

Answer 179

the federal district embracing the state court in which the case was originally filed

Question 180

If D files a permissive Counterclaim in state court, they automatically

Answer 180

waive the right to remove

Question 181

If P wants to remand after D removes, they must do so in (TIMING)

Answer 181

within 30 days of removal. But P can remand any time for lack of SMJ

Question 182

4 Types of law that will always be governed by state substantive law (4)

Answer 182

Elements of a claim or defense
Statute of limitations (“SOL”) and rules for tolling SOL
Conflict/choice of law rules
Standard for granting a new trial because the jury’s award was excessive or inadequate

Question 183

Test for Erie

Answer 183

1) Is there a valid f law (e.g., Const., statute, fed. rule) that is on point and directly conflicts with state law?
If yes, apply the fed. law

2) If no fed. law is on point, analyze under these tests:
a) Outcome determinative—would applying or ignoring the state rule affect the outcome of the case?
If yes, state law is substantive and should be applied

b) Balance of interests—does either fed. or state system have a strong interest in applying its rule?
If one has clearly stronger interest, apply that law

c) Forum shopping avoidance—if fed. court ignores state law, would it encourage litigants to flock to fed. court?
If yes, state law is substantive and should be applied

Question 184

In diversity cases, fed courts must ALWAYS apply ___ and ____ law

Answer 184

state = substantive
federal =procedural law

Question 185

look to physical cards for personal jdx

Question 186

what can establish personal jurisdiction for the defendant (not the test)

Answer 186

express or implied consent (typically forum selection clause that defendant is a party to)

Question 187

Defendant can also consent to personal jurisdiction by….

Answer 187

waiving the objection (objection must be raised with their first appearance and litigate it promptly)

Question 188

most of the time, personal jurisdiction is always satisfied if: (4)

Answer 188

1. D domiciled in forum - “at home”
2. Physically present and served with process in the forum
3. D consents

Question 189

Is a preliminary injunction immediately appealable?

Answer 189

Yes - a party may appeal as of right any order granting, continuing, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction