Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Prep > Essay 06. Civil Procedure > Flashcards

Essay 06. Civil Procedure Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Issue Overview

Civil Procedure

MEE

A
  1. Subject Matter Jurisdiction
  2. Personal Jurisdiction
  3. Venue
  4. Erie
  5. Pleadings
  6. Discovery
  7. Summary Judgement
  8. Trial Procedure
  9. Post-Trial Procedure
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Subject Matter Jurisdiction

Civil Procedure

MEE

A
  1. Federal Question Jurisdiction
  2. Diversity Jurisdiction
  3. Supplemental Jurisdiction
  4. Removal
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

SMJ

Federal Question

Civil Procedure

MEE

A
  • The federal issue must be presented in the plaintiff’s well-plead complaint
  • A federal defense is not sufficient
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

SMJ

Diversity Jurisdiction

Civil Procedure

MEE

A
  1. Diversity
  2. Amount in Controversy
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

SMJ > Diversity

Diversity

Civil Procedure

MEE

A
  • Must be compelte diversity between the parties
  • Individuals = domiciled where they are present with itnent to remain indefinitely (ONLY 1)
  • Corporations = domiciled where incorporations AND where the principal place of business is located (LIMIT 2)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

SMJ > Diversity

Amount in Controversey

Civil Procedure

MEE

A
  • Must exceed $75,000, plead of the complaint
  • Injunctive relief CAN have monetary value assigned
  • Multiple defendants = can aggregate dollar amounts if jointly liable
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

SMJ

Supplemental Jurisdiction

Civil Procedure

MEE

A

Court may exercise supplemental jurisdiction over additional claims so long as the claims arise out of a common nucleus of operative fact as the original claim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

SMJ > Supplemental Jurisdition

Federal Question Jurisdiction

Civil Procedure

MEE

A
  1. Plaintiff can bring state law claims that are related to the federal claim
  2. An additional plaintiff can bring a state law claim against the defendant if related to the original plaintiff’s federal claim
  3. A defendant can bring a cross-claim against another defendant so long as the claim is related to the original plaintiff’s federal claim
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

SMJ > Supplemental Jurisdiction

Diversity Jurisdiction

Civil Procedure

MEE

A
  1. Plaintiff can bring any state law claim related to the basis of the original claim
  2. An additional plaintiff can bring a related state law claim against the defendant so long as the plaintiff does not destroy diversity
  3. A defendant can bring a cross-claim against another defendant so long as it is related to the original claim
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

SMJ > Supplemental Jurisdiction

Rejection of Supplemental Jurisdition

Civil Procedure

MEE

A

Courts have discretion to reject supplemental jurisdiction IF:
1. The claims are complex or predominate the lawsuit;
2. The federal law claims are dismissed; OR
3. There are any other compelling reasons to decline jurisdiction

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

SMJ

Removal

Civil Procedure

MEE

A
  • Plaintiff files in state court and a defendant seeks to remove to federal court
  • Defendant may remove so long as the federal court can exercise SMJ over the case

Additional removal factors:
* Diversity Jurisdiction = no defendants can be citizens of the state in which the claims was originally filed
* Motion for removal must be filed within 30 days of receiving the complaint
* All defendants must join in or consent to removal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

PJ

Traditional Bases

Civil Procedure

MEE

A
  1. Service while voluntarily present
  2. Domicile
  3. Consent
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

PJ

Long-Arm Statute

Civil Procedure

MEE

A

Due process requires:
1. Minimum Contacts
2. Fair play and substantial justice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

PJ > Due Process

Minimum Contacts

Civil Procedure

MEE

A
  1. Purposeful availment = reaonably foreseeable to be sued in the state
  2. Relatedness = defendant’s conduct in relation to the action
  3. Specific jurisdition = action arises out of the defendant’s conduct
  4. General jurisdiction = defendant is essentially “at home” in jurisdiction (NOTE: Corporation is “at home” where incorporated AND where its principal place of business is located)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

PJ > Due Process

Fair Play & Substantial Justice

Civil Procedure

MEE

A
  • Interest of the forum state in adjudicating the matter;
  • Burden on the defendant of appearing in the case;
  • Interest of the judicial system in efficient resolution; AND
  • Shared interests of the states in promoting common social policies
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Appropriate Venue

Civil Procedure

MEE

A

Which federal district can the original action be filed in?
1. A district in which any defendant resides IF ALL defendants reside in the state where the district is located
2. Where a substantial part of the events or omissions occurred, or where the property is situated
3. If neither of the above apply, venue is proper in a judicial district where any defendant is subject to PJ

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Transfer of Venue Analysis

Civil Procedure

MEE

A
  1. Is there personal jurisdiction?
  2. Is there subject matter jurisdiction?
  3. Is venue appropriate in the new district?
  4. Is transfer to the new venue in the interest of justice?
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Erie

Federal Question

Civil Procedure

MEE

A

Federal substantive AND procedural law will control

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Erie

Diversity Jurisdiction

Civil Procedure

MEE

A

Court applies state substantive law and federal procedural law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Erie> Diversity

Substance v. Procedure

Civil Procedure

MEE

A
  • A state law that alters the calculation of damages in a substantive law under Erie
  • A state law regarding a statute of limitations is substantive under Erie
  • State law that create evidentiary previleges are substantive under Erie
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Pre-Trial Injunctions

Civil Procedure

MEE

A
  1. Temporary Restraining Order (TRO)
  2. Preliminary Injunction
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Pre-Trial Injunctions

Temporary Restraining Order

Civil Procedure

MEE

A

Party seeks to maintain the status quo prior to a hearing for a preliminary injunction, and must show:
1. Immediate and irreparable injury would occur absent the TRO; AND
2. An effort was made to give notice to the opposing side (or the reason notice should not be required)

NOTE: Court may grant TRO without the opposing party present

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Pre-Trial Injunctions

Preliminary Injunction

Civil Procedure

MEE

A

Requires notice to the opposing party and a hearing, and the Plaintiff must show:
1. Likely to succeed on the merits;
2. Likely to suffer irreparable harm in absence of injunction;
3. Balancing the equities favors granting; AND
4. Injunction is in the best interests of the public

24
Q

Pleadings

Civil Procedure

MEE

A
  1. Service of Process (Rule 4)
  2. Motions Against the Complaint (Rule 12)
  3. Amendments & Relation Back (Rule 15)
  4. Standards for Filing (Rule 11)
25
Q

Pleadings

Service of Process

Civil Procedure

MEE

A

RULE 4

Corporations = Service may be made on an officer, managing agent, general agent, or agent appointed or authorized

NOTE: Rules governing service of process are considered PROCEDURAL

26
Q

Pleadings

Motions Against the Complaint

Civil Procedure

MEE

A

RULE 12

Rule 12(b) Motion to Dismiss = lack of SMJ, lack of PJ, improper venue, etc.

Timing:
* Lack of SMJ = can be raised at any time, even on appeal
* Lack of PJ, improper venue, and insufficient process = MUST be raised at the first opportunity (first pre-answer motion OR answer) (failure to raise = waive)
* Failure to state a claim or failure to join a necessary partyunder Rule 19 = may be raised in any pleading, in a motionfor judgement on the pleadings, or at trial

27
Q

Pleadings

Amendments & Relation Back

Civil Procedure

MEE

A

RULE 15

  • Plaintiff may amend its pleading once as a matter of right within 21 days after service on the defendant
  • Otherwise, party may seek leave of court or written consent from opponent
28
Q

Pleadings > Amendments & Relation Back

Adding a New Claim

Civil Procedure

MEE

A

Permitted if:
* The original complaint was timely; AND
* The new claim arises out of the same transaction or occurrence as the original claims (i.e., relates back)

29
Q

Pleadings > Amendments & Relation Back

Adding a New Defendant

Civil Procedure

MEE

A

Permitted if:
* The claim arose out of the same conduct, transaction, or occurrence;
* The new defendant received notice of the action within 90 days of the original complaint; AND
* The new defendant knew or should have known that but-for a mistake, he would have been part of the original compalint

30
Q

Pleadings

Standards for Filing

Civil Procedure

MEE

A

RULE 11

  • When an attorney (or unrepresented party) submits a pleading, motion, or other signed document, he certifies that the documents are filed in good faith
  • If challenged, must withdraw or revise the document
  • May be subject to sanctions for violation of this Rule
31
Q

Multiple Parties and Claims

Civil Procedure

MEE

A
  1. Compulsory Joinder of Parties (Rule 19)
  2. Joinder of Claims
32
Q

Multiple Parties and Claims

Compulsory Joinder of Parties

Civil Procedure

MEE

A

RULE 19

Requirements:
1. The party must be necessary
2. There must be PJ over the new party
3. There must be SMJ (adding the party cannot destroy diversity)

NOTE: If adding the party would ruin diversity, the court must decide whether the party is indispensable (dismiss the case) or not (proceed without the party)

33
Q

Multiple Parties and Claims > Compulsory Joinder of Parties

Necessary Party

Civil Procedure

MEE

A
  • Court cannot afford complete relief without the party;
  • There is a danger that the party would be harmed wtihout joining; OR
  • There is a risk of an inconsistent judgment or double liability
34
Q

Multiple Parties and Claims > Compulsory Joinder of Parties

Indispensable Party

Civil Procedure

MEE

A
  1. Extent to which judgment would prejudice the partise in the person’s absence;
  2. Extent to which prejudice could be reduced or avoided by protective provisions;
  3. Whether a judgment rendered would be adequate; AND
  4. Whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder
35
Q

Multiple Parties and Claims

Joinder of Claims

Civil Procedure

MEE

A
  1. Cross-Claims (Rule 13)
  2. Impleader (Rule 14)
  3. Intervention (Rule 24)
36
Q

Multiple Parties and Claims > Joinder of Claims

Cross-Claims

Civil Procedure

MEE

A

RULE 13

  • Can bring a cross-claim so long as it arises out of the same transaction or occurrence as the plaintiff’s original claim
  • Must have SMJ over the cross-claim (FQ, D, or Sup)
37
Q

Multiple Parties and Claims > Joinder of Claims

Impleader

Civil Procedure

MEE

A

RULE 14

  • Impleaded claim must relate to the original claim between the plaintiff and the defendant
  • Must have sMJ over the impleaded claim (FQ, D, or Sup)
38
Q

Multiple Parties and Claims > Joinder of Claims

Intervention

Civil Procedure

MEE

A

RULE 24

Intervention as of right IF:
1. Nonparty has an interest in the subject matter of the action;
2. The action may affect their interest; AND
3. The nonparty’s interest is not adequately represented by the existing parties

Permissive intervention allowed IF:
1. Nonparty is granted a conditional right under federal statute; OR
2. Nonparty has a claim or defense related to the original cause of action

39
Q

Discovery

Civil Procedure

MEE

A

RULE 26

  1. Scope of Discovery
  2. Expert Reports
  3. Duty to Preserve Electronically Stored Information in Anticipation of Litigation
  4. Physical and Mental Exams
  5. Depositions
40
Q

Discovery

Scope of Discovery

Civil Procedure

MEE

A
  • Parties may discover any nonprivileged matter that is relevant to a claim or defense
  • Court may limit discovery if unfuly expensive or burdensome
  • Does not need to be admissible evidence in order to be subject to discovery
  • A party may not discover privileged information
41
Q

Discovery > Scope of Discovery

Work Product Privilege

Civil Procedure

MEE

A

Protects materials prepared by a party in anticipation of litigation

Exception:
1. Information is not reasonably available by other means; AND
2. The party would be substantially prejudiced if not allowed to access the materials

NOTE: A party can never discover the mental thoughts and opinions about the case

42
Q

Discovery

Expert Reports

Civil Procedure

MEE

A

Expert not called as a witness = reports only accessible in exceptional circumstances

43
Q

Discovery

Duty to Preserve Electronically Stored Information in Anticipation of Litigation

Civil Procedure

MEE

A
  • Must take reasonable steps to preserve or could be subject to sanctions
  • Court may presume that the lost information was unfavorable to the party that failed to preserve it
  • Court may also dismiss the case or enter default judgment
44
Q

Discovery

Physical & Mental Exams

Civil Procedure

MEE

A

Can compel a mental or physical exame of a party IF that party’s mental or physical condition is at issue

45
Q

Discovery

Depositions

Civil Procedure

MEE

A
  • A party can depose another party or nonparty
  • To depose a nonparty, must serve subpoena
  • Can also request that a nonparty produce documetns by serving a subpoena duces tecum (SDT)
46
Q

Summary Judgement Motion

Civil Procedure

MEE

A

RULE 56

Adjudication WITHOUT Trial

Asserts that there is no genuine disputeas to any material fact and the party is entitled to judgment as a matter of law. Court may only grant if there is no genuine dispute as to a material fact.

47
Q

Trial Procedure

Civil Procedure

MEE

A
  1. Jury Trial
  2. Judgement as a Matter of Law (Directed Verdict)
  3. Renewed Motion for Judgement as a Matter of Law (JNOV)
48
Q

Trial Procedure

Jury Trial

Civil Procedure

MEE

A
  • 7th Amendment = right to jury trial when damages exceed $20
  • Must demand jury trial within 14 days after service of last pleading
49
Q

Trial Procedure

Judgment as a Matter of Law

Civil Procedure

MEE

A
  • AKA: Directed verdict
  • Motion made by either party at the close of plaintiff’s evidence or the close of all evidence
  • Granted if no reasonable person could differ as to the outcome
50
Q

Trial Procedure

Renewed Motion for Judgment as a Matter of Law

Civil Procedure

MEE

A
  • Motion for judgement as a matter of law is DENIED and the issue goes to the jury
  • The jury deliberates and delivers a verdict
  • Renewed motion for judgment as a matter of law asks the court to override the jury’s verdict
  • Can only “renew” this motion if it was made earlier timely
51
Q

Post-Trial Procedure

Civil Procedure

MEE

A
  1. Appeals
  2. Claim Preclusion (Res Judicata)
  3. Issue Preclusion (Collateral Estoppel)
52
Q

Post-Trial Procedure

Appeals

Civil Procedure

MEE

A
  • Generally, there must be a final judgment
  • Interlocutory appeal allowed after the denial or grant of an injunction
53
Q

Post-Trial Procedure

Claim Preclusion (Res Judicata)

Civil Procedure

MEE

A
  1. The same plaintiff and the same defendant from lawsuit #1;
  2. Lawsuit #1 ended in a valid final judgment on the merits; AND
  3. Claimant is asserting the same claim as in Lawsuit #1
54
Q

Post-Trial Procedure

Issue Preclusion (Collateral Estoppel)

Civil Procedure

MEE

A
  1. Same issue was actually litigated;
  2. Final valid judgment on the merits;
  3. Issue was essential to the judgment; AND
  4. Mutuality: The party against whom issue preclusion is asserted must have been a party in the prior lawsuit or represented in that lawsuit (a successor-in-interest) = must be fair for new plaintiff to assert same issue (prior law required a mutuality of parties)
55
Q

Post-Trial Procedure

Issue Preclusion (Collateral Estoppel) Typical Scenario

Civil Procedure

MEE

A
  1. Plaintiff 1 sues Defendant
  2. Plaintiff 1 wins an issue of fact or law
  3. Plaintiff 2 brings a second lawsuit against the same Defendant
  4. Plaintiff 2 asks the court to preclude the Defendant from relitigating the issue of fact or law won by Plaintiff 1

Bar Prep (33 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions