Critical Pass - Civ Pro Flashcards
1
Q
When must the parties present a written discovery plan to the court
A
within 14 days of the meet and confer
2
Q
objections that can be cured during a depo … (such as an objection to a leading Q)
A
must be raised or else the objection is waived (cannot be raised later)
3
Q
A reading of deposition testimony is generally admissible at trial if
A
deponent is unavailable at trial
4
Q
material is discoverable if (3)
A
non-privileged, relevant, and proportional to the needs of the case
5
Q
Initial disclosures—parties must disclose:
A
- identities of persons with discoverable info
- documents and tangible things that the party may use to support claims or defenses.
- computation of relief and supporting docs/ESI—computation of damages claimed
- Insurance coverage—any insurance agreement that may be used to satisfy all or part of a judgment
6
Q
Initial Disclosures Timing
A
within 14 days of parties mandatory 26(f) conference
7
Q
Expert Disclosures Timing
A
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.
8
Q
Pretrial Disclosures Timing - detailed info about trial evidence
A
parties must give detailed information about evidence to be used at trial at least 30 days before trial
9
Q
Pretrial Disclosures (4)
A
- witnesses used at trial
- witnesses that will be called if needed arises
- witnesses whose testimony will be presented by depo + depo transcript
- docs that may/may not be introduced at trial
10
Q
4 discovery tools
A
1) interrogatories
2) depositions
3) requests for admission
4) med exams if party’s medical condition is an issue in the case
11
Q
how to compel non parties vs. parties to attend deposition
A
nonparties: must be subpoenad
parties: notice of deposition will compel attendance
12
Q
subpoena duces tecum
A
used to compel a deponent to bring documents to deposition
13
Q
limitation on deposition timing
A
one day for seven hours max
14
Q
work product privilege rule
A
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
15
Q
A
16
Q
work product can protect expert: (2)
A
- reports and 2. conversations unless they relate to compensation or deal with facts and data
17
Q
3 requirements to invoke attorney client privilege
A
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
18
Q
prevailing party on a discovery motion can recover costs, attorneys fees, and sanctions only if…
A
they certify in good faith to confer with the opponent to resolve the issue before trial (or that they tried)
19
Q
voluntary dismissal
A
when P voluntarily dismisses her case, with our without court approval
20
Q
Voluntary dismissal is without prejudice if
A
this is the first time that P has dismissed her case and before defendant answers
21
Q
for voluntary dismissal after the defendant’s answer or motion…
A
court order or stipulation is needed
22
Q
even with voluntary dismissal, what can remain pending
A
a counterclaim (may need D’s consent)
23
Q
default judgment may be entered against D when
A
D fails to plead or otherwise defend a properly served complaint
24
Q
a clerk enters default on the docket if P shows:
A
D failed to respond within 21 days of being served (60 days if service is waived)
25
Default does not automatically entitle...
P to recover, clerk or judge must enter judgment of default
26
If D already appeared in the action, what needs to happen for default judgment (2)
need judge to enter, not the clerk AND D needs additional notice of motion for default judgment (7 days)
27
If D does not appear, default can be entered BY____ if:
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
28
Appearance for purposes of default judgment can be
D filing a motion to dismiss
29
What is a motion to dismiss if made after D's answer
Rule 12(c) motion for judgment on the pleadings
30
what does the judge consider in ruling on a 12(b)(6) motion
whether the party states a plausible claim on the face of the complaint ONLY
31
standard for motion to dismiss
failure to state a claim on the face of the party's complaint
32
standard for MSJ
1) no genuine dispute on material fact; and
2) entitled to judgment as a matter of law
33
timing of motion for summary judgment
must be filed no later than 30 days after close of discovery
34
Burden-shifting—if party moves for summary judgment, burden shifts to...
nonmoving party to show that a triable issue exists
35
for msj, evidence is viewed
in light most favorable to non moving party
36
partial SMJ
courts can grant summary judgment on only certain claims or issues
37
to rule on an MSJ, courts will look
to the whole record of admissible evidence
38
7th amendment does not allow jury trials where
equitable relief is sought
39
demand for jury trial timing
must be made within 14 days of service of the last pleading raising a triable issue, otherwise waived
40
min and max number of jurors
6 and 12
41
jury verdict req's
unless the parties stipulate otherwise, the verdict must be returned by at least 6 members and be unanimous
42
who decides what:
1) underlying facts on claim at law
2) equity claims
1) jury
2) judge
43
when will the jury receive jury instructions?
before final arguments
44
parties have final opportunity to object
on the record before final arguments and before instructions are given to the jury (failure to object waives the issue for appeal)
45
forms of verdicts:
1. general, 2. special, 3. general with written questions
46
general verdict
just says who wins and, if plaintiff wins, what the
relief is
47
special verdict
the jury answers, in writing, specific written
questions about the facts in dispute, but it does not say who wins or
loses.
48
general verdict with written questions
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.
49
what cases does JMOL apply to
jury trials
50
If judge grants JMOL, what happens
case will not go to the jury, the judge will enter judgment
51
standard of review for JMOL
reasonable people could not disagree on the result
52
Timing of JMOL
anytime before case is submitted to jury, but cant be granted until the opponent presents all evidence
53
What is RJMOL
After court enters judgment based on jury verdict, losing party can file RJMOL for entry of judgment in his favor
54
Timing of RJMOL
must be filed within 28 days after entry of judgment (after trial)
55
RJMOL can only be filed if
JMOL was originally filed and it must be based on the same grounds as the JMOL
56
What waives RJMOL?
failure to move for JMOL at trial
57
what is the point of motion for new trial
process needs to restart, judgment was entered but serious error occurred at trial
58
timing of motion for new trial
Must be filed within 28 days after entry of judgment
59
which is more drastic: RJMOL or Motion for new trial
New trial because it's just starting over. RJMOL is taking judgment away from one party and giving it to another
60
for motion for new trial, its alot of work. the court might suggest: (2)
remititur and additur
61
remittitur
The court offers the
plaintiff a choice: remit part of the damages award or go through a
new trial.
62
addiditur
The court offers the
defendant a choice: add to the damage award or go through a new
trial.
63
addititur may be allowed in... but not..
allowed in state court, but not federal court
64
after judgment is entered, relief can be granted for: (5)
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
65
what motion for relief from order or judgment can be brought at any reasonable time
1. clerical error and 5. judgment is void
66
what motions for relief must be brought within a specified time? what is the time frame?
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
67
typically what is needed for an appeal
final judgment
68
what is not needed to appeal a preliminary injunction
final judgment - it is immediately appealable.
69
appellate court standards of review: questions of law and questions of fact
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
70
appellate court standard of review: mixed questions of law and fact
de novo
71
appellate review: evidentiary rulings
abuse of discretion
72
notice of appeal must be filed in trial court
within 30 days of entry of final judgment
73
orders that are appealable "as of right" - what does this mean
immediately appealable, even before final judgment
74
orders reviewable as of "right" (4)
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)
75
Interlocutory Appeals Act
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
76
claim preclusion is an
affirmative defense
77
3 req's for claim preclusion
1. earlier judgment is a final, valid, judgment on the merits
2. same claim
3. same P against same D
78
The same claim for claim preclusion can include
claims arising out of the same transaction or occurrence
79
The same party req for claim preclusion can include
an entity in privity with the party (employer and employee)
80
issue preclusion is different from claim preclusion in the sense that
the issue for issue preclusion must have been ACTUALLY litigation. For claim preclusion, only requires opportunity to litigate
81
4 req's for issue preclusion
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
82
issue preclusion can be used in what two ways by a nonparty
1. offensively (nonparty to case 1 and is plaintiff in case 2)
2. defensively (nonparty to case 1 and is defendant in case 2)
83
defensive use of issue preclusion by a nonparty is allowed if
the party against whom issue preclusion is asserted had a full chance to litigate the issue previously
84
offensive use by a nonparty of issue preclusion requires (4)
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
85
5 req's for certifying a class for a class action
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
86
3 types of class actions
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
87
judgement in a class action will only bind
class members who do not opt out
88
Notice req's for class actions
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)
89
for SMJ for class actions, what will courts consider for diversity
the class reps citizenship
90
Class Action Fairness Act (CAFA)
Separate means of obtaining SMJ in class action; jx exists
91
CAFA will apply if: (4)
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)
92
CAFA does NOT apply to
1. class actions with less than 100 ppl
2. shareholder claims against corporate management
93
If a class is certified, the court must:
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
94
certification of a class is ____ via the ____ before final judgment on the merits
appealable via the Interlocutory appeal before final judgment on the merits
95
In a Type 3 class action/damages relief sought, the court may refuse to approve settlement unless
members are given a second chance to opt out
96
Permissive joinder is where
P seeks to join non parties as co-Ps or co-Ds (multiple plaintiffs or claim against multiple defendants)
97
req's for permissive joinder
1. same T/O
2. Common question of law or fact
3. court has SMJ over joined parties and claims
98
Impleader is joinder of nonparties by.....
Permissive joinder is joinder of nonparties by....
Impleader = by D
Permissive Joinder = by P
99
what is compulsory joinder
Absent parties may be forced to join a case if they are deemed required parties; named defendants threaten dismissal for failure to join
100
3 questions to ask for compulsory joinder
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?
101
Who can never be considered "necessary" for joinder (TESTABLE POINT!)
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
102
when is joinder "feasible" of the absentee(2)
There is PJ over the absentee; and
Joining the absentee will not destroy diversity
103
Compulsory Counterclaim
counterclaim is one that arises from the same T/O as the plaintiff’s claim.
104
unless the counterclaimant has already filed the claim in another case, the compulsory counterclaim
must be filed in the pending case or else waived. if you dont use it, you lose it
105
permissive counterclaim
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.
106
cross claims
claim against co-party that must arise from same T/O as the underlying action.
107
impleader
Allows D to assert claims for indemnity, contribution, etc. against another party for the claim D is defending
108
Process for Impleading TPB (2 steps)
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.
109
If third party complaint is filed more than 14 days after D answers, what is needed for impleader
Court permission needed
110
impleader comes up in ONLY situations where
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."
111
courts must have what 2 things in impleader situations
1. SMJ over the claim (supplemental)
2. PJ over TPD
112
The complaint must contain:
1. statement of jdx (SMJ)
2. statement of claim (short and plain)
3. demand for judgment
113
In stating the claim for a complaint, the P must plead
sufficient facts to support a plausible claim
114
What claims require greater specificity in the complaint
fraud/mistake/special damages
115
D must file an answer when
within 21 days of service of process, or 14 days after a Rule 12 motion is denied or postponed until trial
116
req's for defendants answer (2)
1) respond to allegations of complaint (admit/deny)
2) raise affirmative defenses
117
if D waived service, what is the timing for their answer
the defendant has 60 days
from when the plaintiff mailed the waiver form to respond.
118
defenses that are waived if not put in answer/D's motion - whichever is first (IMPORTANT!!)
A lack of personal jurisdiction;
*
Improper venue;
*
Improper process (a problem with the papers); and
*
Improper service of process.
119
lack of SMJ can be raised
at any time, even appeal
120
D must ensure what type of counterclaim is filed in their answer or else waived
compulsory, permissive is not req'd in answer
121
cross claims MUST have an independent basis for
SMJ (likely supplemental)
122
Amendment for new or substituted D (WRONG PARTY NAMED) after Statute of Limitations has Run can relate back if: (3)
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
123
P has the right to amend her complaint how many times? when?
once - no later than 21 days after the defendant serves her first Rule 12 response.
124
D has the right to amend his answer how many times? when?
once as of course no later than 21 days of serving it.
125
Relation back for a new claim if the: to circumvent the SOL req
if the new claim concerns the same conduct, transaction, or occurrence as the original pleading
126
Rule 11 requires
the attorney or pro se party to sign all pleadings, written motions, and other papers
127
when a lawyer or pro se party signs docs under rule 11, she certifies that:
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.
128
for a rule 11 violation, what can be imposed
sanctions against the party/lawyer/firm
129
For a rule 11 violation, the opposing party cannot immediately move for sanctions. Rather she must...
serve the motion and not file it. the party in violation has 21 days to fix the problem to avoid the sanctions.
130
what must the court provide before imposing sanctions under rule 1
need a chance to be heard before imposing sanctions
131
Two types of interlocutory injunctions (adjudication without trial)
1. TROs
2. Preliminary injunctions
132
An order that maintains status quo until trial
preliminary injunction
133
an order that maintains status quo until the hearing on the preliminary injunction
TRO
134
TRO or preliminary injunction - can be issued ex parte?
TRO - no notice to other party
135
TRO can be issued ex parte if:
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
136
Duration of TRO
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)
137
for a preliminary injunction, the burden is on the applicant to show: (4)
Irreparable injury (a/k/a no adequate remedy at law)
Reasonable likelihood of success on the merits
Balance of hardships
Public interest
138
an order granting or denying a preliminary injunction may be....
appealable as of right
139
who may serve process
any non-party aged 18 or older
140
Timing of service of process
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
141
common methods of service of process (4)
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—
142
for substituted service of process, the person service is left with at D's abode must be
must be "of suitable age and discretion," and must reside at abode
143
for methods of service of process under state law, what state law applies
state where fed court sits
144
Waiver of service
P may request that D waives service by mailing D the complaint and a formal request to waive service
145
If D agrees to waive service, her time is extended to answer the complaint to....
60 days from date of waiver request being sent (normal is 21 days)
146
where is venue proper (3)
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
147
residency of ppl for venue
domicile
148
residency of entity for venue
wherever subject to PJ
149
3 questions to consider for venue transfer
1. was original venue district proper
2. was original venue district improper
3. did the parties consent? if so, ok
150
If original venue is proper, a court can...
1. order transfer to another fed. district court based on interest of justice, convenience of parties and witnesses
2. may refuse transfer
151
If original venue district is improper.. a court may
1. dismiss the case or
2. transfer to a proper venue in the interests of justice
152
when will the transferee court apply its own rules for venue
when venue was improper; or if the transfer was to enforce a forum selection clause.. otherwise, they apply the original courts choice of law
153
Erie only applies wehn
in fed court on diversity
154
Erie says that...
when fed and state law conflict on the issue, federal law trumps state law
155
Forum non conveniens only comes up
when the more appropriate forum is a foreign one
156
A court will not grant forum non conveniens without a finding that
there is an adequate alternative forum
157
3 types of SMJ
1. diversity
2. FQ
3. Supplemental
158
2 req's for diversity SMJ
1. no P from same state as D, OR alienage: 1 US state vs. 1 foreign
2. Amount in controversy EXCEEDS 75K
159
fed. courts will not hear actions involving (WHAT 4 TYPES OF CASES) even if diversity requirements are otherwise satisfied
divorce, alimony, child custody, or probate,
160
citizenship of ppl for diversity
1. physically present, with 2) intent to remain
161
a person can only have ___ domicile
one, never more than oneB
162
corporations are citizens for diversity where
1. incorporated
2. PPB
Always have 2 citizenship, or more
163
Unincorporated businesses (LLC/LLP) are citizens for diversity
of all states where any member or partner is a citzen
164
when can a party aggregate claims to meet 75K diversity req
One P can aggregate all claims against a single D (even if unrelated)
165
The only time multiple Ps can aggregate together is when
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)
166
for equitable relief claims, what will courts consider for the 75K diversity req
value of harm caused from either P or D perspective (injunctive relief harm would be more than 75K?)
167
Test for FQ jurisdiction
1. Ps claim arises under fed law
2. fed question appears on the face of complaint
168
Exclusive federal jdx cases for FQ
Bankruptcy
Patent, copyright, trademark
Federal antitrust claims
Postal matters
Maritine/Admiralty
169
test for supplemental jdx
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
170
Supplemental jurisdiction allows a fed. court to hear ...
additional claims (e.g., counterclaims and cross-claims) that do not, on their own, meet diversity or FQJ requirements
171
Limitation for supplemental jdx in diversity cases!!!!!! IMPORTANT
co-P's presence in the suit cannot override the complete diversity requirement; diversity cannot be destroyed!
172
court may refuse a supplemental claim if: (3)
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
173
who only removes
defendant
174
D can remove a case from ____ to ____
state to federal
175
diversity jdx removal limitation
D cannot remove if P filed suit in any D’s home state
176
Timing for removal
D must remove within 30 days of service of the first removable document (usually service of process)
177
If multiple defendants, what needs to happen to remove
all D's must agree
178
D can only remove
if the case could have been filed in federal court
179
D can only remove to
the federal district embracing the state court in which the case was originally filed
180
If D files a permissive Counterclaim in state court, they automatically
waive the right to remove
181
If P wants to remand after D removes, they must do so in (TIMING)
within 30 days of removal. But P can remand any time for lack of SMJ
182
4 Types of law that will always be governed by state substantive law (4)
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
183
Test for Erie
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
184
In diversity cases, fed courts must ALWAYS apply ___ and ____ law
state = substantive
federal =procedural law
185
look to physical cards for personal jdx
186
what can establish personal jurisdiction for the defendant (not the test)
express or implied consent (typically forum selection clause that defendant is a party to)
187
Defendant can also consent to personal jurisdiction by....
waiving the objection (objection must be raised with their first appearance and litigate it promptly)
188
most of the time, personal jurisdiction is always satisfied if: (4)
1. D domiciled in forum - "at home"
2. Physically present and served with process in the forum
3. D consents
189
Is a preliminary injunction immediately appealable?
Yes - a party may appeal as of right any order granting, continuing, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction
