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Lexbar Cards > Fed Civ Pro > Flashcards

Fed Civ Pro Flashcards

1
Q

Venue is proper where

A

1) any federal district where D resides

2) where substantial events giving rise to claim occurred

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2
Q

Diversity jurisdiction

A

where all plaintiffs are completely diverse in citizenship from all defendants and the amount in controversy exceeds $75k

An individual citizen is domiciled where they physically reside with the intent to remain indefinitely. A corporation is domiciled where they are incorporated and have their PPB. PPB is where the corp has their nerve center–where high ranking officers and directors conduct the business of the corporation

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3
Q

What jury instruction law should courts use for diversity jurisdiction where it concerns substantive law?

A

VA model jury instructions

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4
Q

What law does ct use for jury instructions when the instructions concern laws of procedure?

A

Fed Model jury instruction, so long as it doesnt address state substantive law

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5
Q

Federal Question Jurisdiction

A

the courts subject matter jurisidction to hear cases that arise under federal law, treaty, statute, or constitution

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6
Q

Supplemental jurisdiction

A

Fed courts ability to hear a case it would not ordinarily have jurisdiction over when the case arises out of a common nucleus of operative fact as the federal claim before the court

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7
Q

Personal jurisidction in federal ct is determined by

A

Virginia’s long arm statute + minimum contacts due process analysis

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8
Q

Minimum contacts due process analysis

A

D purposefully avails himself of VA’s laws thus putting him on reasonable notice of suit

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9
Q

Virginia long arm statute

A
  1. transacting any business in Virginia
  2. Contracting to supply services or things in VA
  3. Causing tortious injury by act or ommission in VA
  4. Causing tortious injury in VA by act or ommission outside of VA if he regularly does or solicits business or derives substantial revenue from goods used or consumed or services rendered in VA
  5. Causing injury in VA by BREACH OF WARRANTY made in sale of goods outside of VA when he might reasonably expect such person to use, consume, or be affected by the goods in VA, provided he regularly does or solicites business, derives substantial revenue from goods used or services rendered in VA
  6. Possessing real property in VA
  7. Contratcing to insure person or property located in VA
  8. Child support
  9. Operating a computer network located in VA
  10. Incurring liability for taxes, fines, penalties
  11. Maintaining a matrominial domicile at time of seperation of parties upon which grounds for divorce or seperate maintenance is based
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10
Q

When/how must D raise challenge of personal jurisidction

A

motion to dismiss for lack of PJ in first filed challenge to P’s complaint…answer pre answer motion

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11
Q

Submitting to a physical/mental exam

A

Ct may order a party to submit to a physical or mental exam by suitably licenses examiner when party’s physical/mental condition is in controversy

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12
Q

Motion for leave to ammend pleading should be freely granted when

A

justice so requires

-aka should not be granted if it would cause undue prejudice, delay or filed in bad faith

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13
Q

What action should be filed when one party holds property subject to competing claims

A

interpleader action joining all claimaints

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14
Q

Interpleader action asks ct to

A

determine who is entitled to the property

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15
Q

Interpleader brought in GDC is subject to

A

$25k cap

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16
Q

D can remove case from State to Fed Ct if

A
  1. D files notice of removal w district ct within 30 days of receiving service

2.Fed ct has smj jurisidction

  1. If diversity, D is not domiciled in jx where case is being removed
  2. Case is being removed to fed jx where state ct action is pending
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17
Q

Removal is determined based on the pleading at time

A

D files removal petition

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18
Q

Removal: Diversity must exist

A

at time of filing pleading and at time of removal

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19
Q

Diversity must exist at time of filing complaint and time of removal unless

A

P dismisses a party who would have destroyed diversity

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20
Q

Supplemental jx: ENtire case can be removed to fed ct if

A

state law claim arises out of common nucleus of operative fact as the fed q claim

Ct may determine all issues or in its discretion remand any claims where state law predominates

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21
Q

Can D remove a case from Fed ct to State ct

A

No, that is called remand and only occurs after removal if removal was defective

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22
Q

If, after removal, P seeks to join a D who would destroy fed court’s diversity, ct may

A

deny joinder and proceed w the action in federal court or permit the joinder and remand the action back to state ct

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23
Q

How can case be remanded back to state court

A

if there was a defect in removal

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24
Q

When diversity jx exists when complaint is filed, is jx lost when events after the action has been filed reduce the amount in controversy beflow the stat minim

A

no, so long as OG claim was made in good faith

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25
Q

Procedure for Removal

A

D must file notice of removal within 30 days of recipt of the complaint

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26
Q

Notice of removal requisites

A

removal must be
1) signed containing a short and plain statement abt grounds for removal
2. verified

3) filed in district ct where state action is pending

  1. accompanied by copies of all process, pleadings and orders served on Ds seeking removal
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27
Q

Must All D’s join in notice of removal?

A

Yes

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28
Q

Removal: notice to P

A

notice of removal must be sent to P in state ct where case was pending

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29
Q

Domicile for partnership in diversity

A

where all partners are domiciled, general and limited

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30
Q

Can you aggregate multiple claims against one D in diversity

A

yes, regardless of the subject of the aggregated claims

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31
Q

Value of P’s claims against multiple D’s generally cant be aggregated if

A

claims are separate and distinct

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32
Q

Demand for jury must be made within

A

14 days of filing complaint

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33
Q

If P has failed to sue a person who is subject to service of process and whose joinder will not deprive the ct of subject matter jx, person must be joined as a party if

A

1) w/o that person complete relief cannot be granted among existing parties or

2) Person claims an interest relating to subject of the action and is so situated that disposing of action in person’s absense may impair or impede person’s ability to protect that interest or leave an existing party subject to a substantial risk of incurring multiple or inconsistent obligations bc of the interest

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34
Q

what action is used by a D to assert claims against 3rd party for all or part of the liability on the original claim

A

impleader

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35
Q

Impleaded claim must relate to

A

the original claim against the defending party

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36
Q

impleaded claim must fall wthin ct’s

A

SMJ

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37
Q

Ct must also have ___jx over the 3rd party D for impleader to apply

A

personal jx

38
Q

sanctions should not be imposed based on a pleading if

A

1) it is not being presented for an improper purpose

2) claims, defenses and other legal contentions are warranted by existing law or by a nonfrivilos argument for extending, modifying or reversing existing law and

  1. Factual contentions have or reasonably will have evidentiary support
39
Q

Persons may be joined in one action as defendants if

A

1) any right to relief is asserted against them jointly, severally or in alternative w respect to or arising out of STO

2) a question of law or fact common to all D’s will arise in the action

40
Q

when may witness obtain prior trial depo?

A

1) dead,
2)beyond 100 mile radius from place of trial,

3) unable to attend bc of age, illness, prison

4) party offering the depo could not procure witness’ testimony by subpoena or other extraordinary reasons

41
Q

Are depos subject to the rules of evidence?

A

yes

42
Q

Plaintiff may amend their complaint once as of

A

right without ct intervention….

43
Q

What must P do to amend their complaint if they have already amended complaint as of right

A

ct may allow them to if justice so requires…not undue prejudice, delay, bad faith

44
Q

Forum Defendant rule regarding removal can be waived if

A

P doesnt raise this issue within 30 days of removal

45
Q

Court can remand on its own initiative even if party doesn’t remand within 30-day window if

A

requirements for diversity jurisdiction aren’t met bc SMJ can be waived at any time

46
Q

Minimum contacts due process analysis: D may have sufficient min contacts with forum state where

A

1) they have purposefully availed themselves of the laws of the state such that they could reasonably foresee being sued there; and

2) Suing them in forum state comports w fair play and substantial justice

47
Q

Fair play and substantial justice analysis

A

Ct determines facts would offend notions of fair play and substantial justice bc

1) interest of forum state in adjudicating matter

2) Burden on D in appearing

3) Interests of judicial efficiency

4) Interest of state in promoting common policies

48
Q

Minimum contacts are

A

continuous, systematic, purposeful contact; ie. something to target Virginia

49
Q

When is amount in controversy determined

A

on face of complaint

50
Q

Cannot aggregate D’s counterclaim with P’s claim unless

A

1) it is compulsory or inseparable claim and it

2) arises out of STO

51
Q

Remand: when can case be remanded for lack of smj?

A

any time before final judgment is rendered

52
Q

Specific Jx

A

Personal jx Arising out of D’s contacts with VA

53
Q

General JX

A

D is domiciled or has continuous systematic contacts with forum state

54
Q

Employees Mim Contacts with VA

A

imputed to employer if acting within scope of agency/employement

55
Q

Erie Doctrine: FQ jx

A

federal substantive and procedural law controls

56
Q

Erie Doctrine

A

State substantive, federal procedural law applies

57
Q

Erie Doctrine: Supplemental JX

A

state substantive law for state claim

58
Q

When must service be made on D

A

within 90 days of filing

59
Q

If a joined party objects to venue and joinder would make venue improper, ct must

A

dismiss that party

60
Q

Counterclaims must be filed within

A

21 days of service

61
Q

Cross claim must be filed within

A

21 days of service

62
Q

Time period for filing impleader

A

filed at any time

63
Q

How many oral depos may party have

A

10

64
Q

question in interrogatories

A

25 related to non privileged matters

65
Q

Time period for party who is served w request to produce documents to respond

A

30 days from service or 30 days from rule 26f conference

66
Q

Once answers to request for admisssion are admitted, such statement is considered

A

conclusively established

67
Q

A party who fails to appear or participate in pretrial or scheduling conference or fails to obey a resulting order, may be subject to

A

sanctions or ordered to pay reasonable expenses

68
Q

When must motion for SMJ be filed

A

anytime until 30 days after close of all discovery;

nonmovant generally must be given sufficient opportunity to discovery

69
Q

Can party withdraw jury trial demand without consent of other parties?

A

yes

70
Q

Jury size

A

no more than 12

verdict must be unanimous returned by at least 6 jurors

71
Q

Judgement as a matter of law

A

challenges the suffiiceny of the evidence in a civil jury trial

72
Q

When can party move for judgment as a matter of law

A

before submission to the jury or after veridct and entry of judgment, party may renew their motion for judgment as a matter of law as a (judgment notwithstanding the verdict)

73
Q

Ct’s view of evidence in judgment as a matter of law

A

light most favorable to nonmoving party and draw all reasonable inferences in their favor

74
Q

When must party file their renewed judgment as a matter of law/ judgment not withstanding the veridct

A

no later than 28 days after entry of judgment

ct may allow judgment on verdict, order a new trial or direct entry of judgment as a matter of law

75
Q

Court can relieve party from final judgment within reasonable time, not exceeding ___ from final judgment for ____

A

1) mistake

2) inadvertence, suprise, neglect

3) newly discovered evidence–not discovered through reasonable dilligence

4) fraud/misconduct

76
Q

Relief from judgment for newly discovered evidence comes by way of what kind of motion

A

motion to vacate

77
Q

When must a notice of appeal be filed

A

30 days from entry of order, judgment, proceeding w district ct clerk

78
Q

Choice of Law For Contracts: Parties can agree that law of particular state controls a K if

A

the transaction bears a reasonable relation to the state and also to another state or nation the parties may agree that the law either of this state or such other state or nation shall govern their rights and duties.

79
Q

What law will fed ct sitting in diversity apply the choice of law rules where

A

the state it is sitting.

VA’s choice of law states that parties may agree that the law of a particular state can govern the parties’ rights and duties if that state bears a reasonable relation to the parties

80
Q

An LLC’s domicile is determined by

A

every state its members are domiciled

81
Q

Erie doctrine–state law is applied where

A

case arises under supplemental or diversity jx and law is substantive

82
Q

When may court grant leave to amend a pleading

A

freely granted where justice so requires

83
Q

Justice so requires means leave should be granted unless

A

there is a special reason not to do so, such as undue prejudice, delay, futility, bad faith

84
Q

What is unfair prejudice

A

where amendment involves additional incidents or parties beyond those already at issue in P’s complaint…would require additional discovery

85
Q

What is undue delay

A

amendment not made as soon as grounds for defenses appeared

86
Q

Affirmative defenses are treated as

A

fact matters, which are questions for a jury

87
Q

Dollar amount for diversity is determined by the

A

legal certainity test.. whereby case will meet the requirement unless the ct can say to e legal certainty that P cant recover more than $75k

88
Q

Transacting business in VA: single act sufficient?

A

transacting business requirement requires soley a single business transaction… D does not need to come to vA

89
Q

WHen P files suit in the proper forum, presumption favor’s

A

P’s choice of venue.

90
Q

When can ct enter sanctions for electronically stored evidence

A

if info should have been preserved in anticipation of litigation is lost bc a party failed to take reasonable steps to preserve it and it cannot be restored or replaced through additional discovery

91
Q

Does a cross claim need to arise out of STO?

A

NO

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