Fed Civ Pro Essay Rules Flashcards
1
Q
FQ jurisdiction requirements
A
P’s claim must “arise under” federal law
2
Q
What is irrelevant in FQ jurisdiction?
A
Parties’ citizenship and AIC
3
Q
Pleader must follow the well-pleaded complaint rule meaning
A
It is not enough that some federal issue is raised by the complaint, but rather, the complaint itself must arise under federal law
4
Q
Diversity jurisdiction requirements
A
Complete diversity and AIC
5
Q
T/F A corporation is a citizen of the state where it has its headquarters (PPB)
A
True
6
Q
A court will accept the P’s allegation of damages unless it appears ________ that such allegations are incorrect
A
“To a legal certainty”
[Determination whether the requirement is met is the time of the filing of the complaint]
7
Q
T/F If a plaintiff does not amend the complaint after a settlement with 1 out of 2 D’s, the amount in the un-amended complaint still stands
A
True
8
Q
T/F A corporation has dual citizenship - the citizenship of the state of incorporation and the citizenship of its PPB
A
True
9
Q
A corporation has dual citizenship
A
1) The citizenship of the state of incorporation, and
2) The citizenship of its PPB
10
Q
Cases can be removed to federal court if there is ________ over the action
A
Federal SMJ over action
11
Q
T/F Removal statutes provide only for removing a case filed in state court
A
True
12
Q
The only way that a case could be sent to state court is
A
1) If the case originated in state court
2) had been removed to U.S. District Court, and
3) Was then remanded bc of some defect in the removal process
13
Q
A notice of removal must be filed within
A
30 days of service of complaint (or 30 days after a nonremovable case has become removable)
14
Q
For remand to be available, the case must have
A
Initially been filed in state court then removed to federal court
15
Q
Who must join in the removal?
A
All Ds
16
Q
Removal must be to the ________
A
Federal district court embracing the place where state court is located
17
Q
Removal must be to the ________ embracing the place where the ________ is located
A
Federal district court; state court
18
Q
Removal must be within
A
30 days of receipt of amended pleading, order, or other court paper showing that a non-removable case had become removable
19
Q
A case can be removed to federal court by a D if the case
A
Could have originally been filed in federal court
20
Q
When removal is based on diversity, the case may not be removed
A
1) More than one year after it was filed in state court (unless the P acted in bad faith to prevent removal); and
2) If any D is a citizen of the forum state
[Clearly one year has not yet passed. Finally the case was filed in VA, and Duke was a citizen of TN, so the in-state D restriction does not apply]
21
Q
T/F The court is likely to grant Penny’s motion to remand unless the court allowed the procedural defect to be corrected by transfer under the transfer of venue statute
A D’s failure to remove a case to the correct division is not a jurisdictional defect, but a procedural one, and therefore must be objected to or the defect is waived
Such a procedural defect could be cured simply by transferring the case
[Here, the motion to remand within 30 days of removal would satisfy the “objection” to the procedural defect]
A
True
22
Q
T/F A D’s failure to remove case to correct division is procedural, not jurisdictional, and therefore must be objected to or the defect is waived
A
True
23
Q
T/F Such a procedural defect could be cured simply by transferring the case to the correct division
A
True
24
Q
Removal improper (in-state D rule) - minority versus 4th circuit
A
Minority: Treats requirement as jurisdictional (cannot be waived)
4th Circuit: Waivable - like any other defect in removal - if non-removing party fails to move to remand within 30 days of filing of notice of removal
25
In-state D limitation for diversity of citizenship jurisdiction
Case cannot be removed if any D is a citizen of the state in which the case was pending/suit was brought
26
Limitations on removal in diversity of citizenship cases - one-year rule
When SMJ is based on diversity, **removal may not occur more than one year after the case was filed** unless bad faith can be shown on part of P
27
T/F In cases removed to Federal Court based on diversity, the case can be removed if a later change in the case, so long as the change and removal occur within one year from commencement of the action
[Moreover, Firebox had 30 days from receipt of the order showing the change in the status of the case to remove it by filing a notice of removal]
True
28
In cases removed to Federal Court based on diversity, the case can be removed if a later change in the case, so long as the change/removal occur within ________
One year of the commencement of the action
29
Limitations on removal in diversity of citizenship cases - D citizen of forum state
When SMJ is based on diversity, **no D may be a citizen of the state in which the case was pending** / suit was brought
30
Procedure for removal
1) D files a **notice of removal** stating grounds for removal (diversity or FQ)
2) D **attaches all docs** served on her in state action
3) D promptly serves **copy of notice of removal on adverse parties**
31
Citizenship is determined ________ not when ________
At the time the action is filed; the c/a accrues
32
Individual citizenship is determined by
**Where they are domiciled**, meaning the state in which they are present with the intent to remain permanently or for an indefinite period
[Present with intent to remain]
33
Domicile =
Physical presence + intent to remain
34
Individual citizenship is determined by where they are domiciled, meaning the state in which they are ________
Present with the intent to remain permanently or for an indefinite period
35
A person can only have ________ domicile, and that domicile is ________
1, **retained** until changed
36
Establishing a new domicile requires
1) The person's physical presence in the new domicile and
2) The **intent to make that place their home** permanently or for the indefinite future
37
Courts look to all factors for domicile, including
Where a person works, owns a house, is registered to vote, as well as other factors
38
A corporation is considered a citizen of
Any state in which it is incorporated or the one state in which it has its PPB
39
A partnership's domicile =
Citizenship of each partner
40
Complete diversity means that
No plaintiff may be a citizen of the same state as any defendant
41
Personal jurisdiction refers to
The ability of a court to exercise power over a particular defendant
42
T/F The VA long arm statute allows jurisdiction over an absent D who has acted through an agent in VA
True
43
Federal court is required to analyze whether it has PJ over D as if it were
A state court in the forum state
44
Whether a court has PJ over a defendant has two requirements
1) The **exercise of PJ** must fall within the **state long arm statute**, as a federal court is required to analyze whether it has personal jurisdiction over a D as if it were a state court in the forum state
2) The **exercise of PJ** must satisfy the **US Constitution**, meaning that the D must have such minimum contacts with the forum state that exercising jurisdiction does not offend traditional notions of fair play and substantial justice
45
An individual is a citizen of the state in which they are domiciled, meaning the state in which they are
Present with the intent to remain permanently or for an indefinite period
46
Personal jurisdiction refers to
The ability of a court to exercise power over a particular defendant
47
Whether a court has PJ over a defendant has two requirements. The **exercise of PJ must**
1) **Fall within the state long arm statute**, as a federal court is required to analyze whether it has personal jurisdiction over a D as if it were a state court in the forum state
2) **Satisfy the US Constitution,** meaning that the D must have such minimum contacts with the forum state that exercising jurisdiction does not offend traditional notions of fair play and substantial justice
48
VA long arm statute authorizes personal jurisdiction in these certain circumstances
1) Transacting any business in VA
2) Contracting to supply services or things in VA
3) Causing tortious injury by an act or omission in VA
4) Causing tortious injury in VA by an act or omission outside VA, if the person regularly does or solicits business or engages in any other persistent course of conduct from which she derives a substantial revenue from goods used or consumed in VA
5) Causing injury in VA to any person by breach of warranty
49
Venue relates to
The proper geographic district in which to bring a lawsuit
50
T/F Unlike SMJ, venue can be waived
True
51
Venue in civil actions is proper in
1) A judicial district in which any D resides, if all Ds are **residents of the state** in which the district is located (residential venue)
2) A judicial district in which a **substantial part of the events or omissions giving rise to the claim occurred**, or a substantial part of property that is the subject of the action is situated (transactional venue) ;or
3) If there is no district anywhere in the US which satisfies 1 or 2, a judicial district in which any D is subject to the court's personal jurisdiction with respect to the action
52
Even though venue is proper, venue may be transferred to another federal district where
The action "might have been brought" or to which all parties have consented **when the parties or witnesses might be greatly inconvenienced by trial in the current venue**
[in conformity with the rules governing 1) PJ over, 2) SMJ, and venue]
53
Even though venue is proper, venue may be transferred to
1) **Another federal district** where the action "might have been brought" or
2) To which all parties have consented when the parties or witnesses might be greatly inconvenienced by trial in the current venue
The P's choice of forum is taken into consideration
[Here the action may have been brought in NY as 1) Austin would be subject to PJ. SMJ would exist in federal court, and venue would be proper based on events or Austin's domicile in NY. However, the greatly inconvenienced factor would not be present. The P's choice of forum is taken into consideration, and here Long chose the VA forum. Although it might be inconvenient for Austin to litigate in VA, it is equally as inconvenient for Long to litigate in NY. Furthermore, it was Austin who reached out to Long in VA, making VA venue justifiable. As a result, a motion to transfer venue based on convenience should be denied]
54
SMJ refers to
The ability of a court to exercise power over the case
55
PJ refers to
The ability of a court to exercise power over a particular D
56
A 12(b)(1) MTD may be filed
At any time during the proceeding
57
Declarations are admissible in federal court and considered to have the same force and effect as an ________ or other sworn statement if the party, in writing, declares that ________
Affidavit; the information is true under penalty of perjury, dated, and signed by the declarator
58
A motion to strike may be filed
Before responding to a pleading or, if no responsive pleading is permitted, within 21 days after service of the pleading, a party may move to have stricken any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter
59
Venue will depend on
Where the c/a arose and on the nature of the parties (whether corporate or natural persons)
60
By balancing the relative convenience offered by the alternative forums, the original court (if original venue proper) has discretion to transfer the action to a court in which the action "might have been brought" in conformity with the rules governing
1) PJ
2) SMJ; and
3) Venue
61
In a **motion based on convenience**, the ________ choice of forum is taken into consideration
Plaintiff's
62
An independent physical or mental examination of a party may be had when
The party's physical or mental condition is in controversy; that is, the condition is **relevant to the case**
A court order on a showing of **good cause** is required
63
T/F FRCP allows court to order a party to submit to a physical or mental examination by a suitably license examiner when the party's mental or physical condition is in controversy
True
64
FRCP provides for a deposition of a witness who is
"Unavailable"
65
Unavailability of a witness under the Federal Rule includes a witness who at the time of trial is
1) Dead
2) Beyond 100 mile radius from the place of trial or outside the U.S.
3) Unable to attend due to age, illness, etc.
4) Party offering depo could not procure the witness' testimony by subpoena
66
Under the federal rules, a party may use for any purpose the deposition of a witness, whether or not a party,
1) To **impeach** the witness;
2) If the **witness is dead, more than 100 miles from the place of trial** (unless the absence was procured by the party offering the deposition), or unable to testify due to age, imprisonment, etc.; or
3) For any purpose if exceptional circumstances exist
67
T/F Under the federal rules, taking a deposition rather than live testimony merely to save money is not a ground for taking or using a deposition at trial
True
[There was no basis for a controversy over Sara's mental condition, the court erred in ordering a mental examination]
68
Under the federal discovery rules, a party may assert evidentiary objections when the opposing party offers
A deposition into evidence
69
Under the federal discovery rules, a party may assert ________ when the opposing party offers a ________ into evidence
Evidentiary objections; deposition
70
Under the federal rules, what may a party assert if the opposing party offers deposition into evidence?
Evidentiary objections
[Here, if the depo is from the 2012 case, there may be an objection based on relevancy, as there is no indication how Sarah's 2012 injuries relate to her current injuries. The taking of the deposition is objectionable]
[The relevancy objection may not apply if the depo is new, as the purpose of the depo would likely explain how her current physical state was the result of the 2012 accident]
However, it should be noted that, under the federal rules, a deposition from previous litigation may not be used in another proceeding unless it concerns the same subject and parties, and Luke was not a party to the first action
71
Evidentiary objections may be opposed by ________ and/or ________
Relevancy; timing
72
Under the federal rules, a deposition from previous litigation may not be used in another proceeding unless
It concerns the **same subject matter and parties**
73
Can a deposition from a previous litigation be used in another proceeding?
No, unless it concerns the same subject matter and parties
[And Luke was not a party to the first action]
74
T/F Furthermore, since Dr. Cure is available, there may be hearsay objections to a prior deposition being used at trial
True
75
The pre-trial scheduling order may be modified for
Good cause
76
With the consent of the judge, a pretrial scheduling order may be modified for
Good cause
77
When can a pre-trial scheduling order be modified?
For good cause
78
A notice of removal must be filed within
30 days of service of the complaint (or 30 days after a nonremovable case has become removable)
[The notice was issued a few days prior to the cutoff of discovery by the scheduling order, making it very unlikely that a new deposition would take place before the cutoff of discovery, and even if the deposition is from 2012, the late timing of the notice would prevent Sara from requesting additional discovery]
79
A P can ask the federal court to remand her case to state court using a
Motion to remand
80
Ordinarily, venue can depend on where the c/a arose, but for removed cases, the D removes a case to
The federal district court "embracing" the state court where the case was filed
It does not matter if that venue would have been proper under the venue statutes
81
T/F Only a D can exercise the right of removal
True
82
T/F Improper venue does not defeat SMJ
True
83
T/F As a matter of course, a pleading may be amended once within 21 days of serving it, or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or a pre-answer motion
Thereafter, a pleading may be amended only by the written consent of the adverse party or by leave of the court upon motion
Leave of court is "freely given when justice so requires"
True
84
After the deadline to amend a pleading, a pleading may be amended only by
The written consent of the adverse party or by leave of the court upon motion
Leave of court is "freely given when justice so requires"
[D: P will not suffer prejudice]
[D: Defenses do not involve additional incidents or parties beyond those already at issue in P's claim]
[P: Risk dispute is not resolved on its true merits]
[P: Proposed amendment comes near the end of discovery (no additional time for discovery is allowed]
85
T/F If after removal, the P seeks to join additional Ds whose joinder would destroy SMJ, the court may deny joinder, or permit joinder and remand the action to state court
[The argument against adding Buddy would be that the joinder was merely fraudulent joinder to seek to have a VA D in the case and thus, to frustrate removal bc a VA D would destroy complete diversity. If Duke could argue that adding Buddy was for that purpose, the court would have the discretion to deny joinder]
[By contrast, if Penny can argue that Buddy failed in a duty of care to warn Duke, then she would have an argument that the joinder was not fraudulent and that the district court should allow joinder and remand back to state court]
True
86
Rule 11
Under Rule 11, an attorney who presents a **written motion** must **certify** that he **conducted** an "inquiry reasonable under the circumstances":
1) The paper is not presented for any **improper purpose**
2) Legal contentions in the pleading are warranted by existing law or a nonfrivolous argument for the modification of existing law or the establishment of a new law;
3) The allegations and factual contentions either have, or upon further investigation or discovery are likely to have **evidentiary support**; and
4) Denials of factual contentions are warranted on the evidence or, where specified, are reasonably based on a lack of information and belief
A party who believed an opposing party presented a paper in violation of Rule 11 may **serve a motion for sanctions on the party**. If the party **does not withdraw or correct** the matter within 21 days, the moving party may **then file the motion for sanctions with the court** (safe harbor provision)
[Andrew can argue that Lester should know Buddy did not contribute to Penny's injuries. As such, Lester violated Rule 11. However, Lester will argue that Andrew should not have filed the motion without giving him an opportunity to withdraw the motion for an amended pleading before moving for sanctions]
87
Rule 11 - Under Rule 11, an attorney who presents ________ must **certify** that he has **conducted** an inquiry
A written motion; reasonable under the circumstances
88
Rule 11 - Under Rule 11, an attorney who presents ________ must ________ that he has ________
A written motion; certify; conducted an inquiry reasonable under the circumstances
89
Rule 11 - Sanctions (safe harbor provision of rule 11)
A party who believed an opposing party presented a paper in violation of Rule 11 may **serve a motion for sanctions on the party**. If the party **does not withdraw or correct** the matter within 21 days, the moving party may **then file the motion for sanctions with the court**
90
Rule 11 sanctions - A party who believed an opposing party presented a paper in violation of Rule 11 may
**Serve a motion for sanctions** on the party
[If the party does not withdraw or correct the matter within 21 days, the moving party may then file the motion for sanctions with the court]
91
A party who believed an opposing party presented a paper in violation of ________ may ________
Rule 11; serve a motion for sanctions on the party
92
A party who believed an opposing party ________ in violation of Rule 11 may **serve** ________
presented a paper; a motion for sanctions on the party
93
Rule 11 sanctions - A party who believed an opposing party **presented a paper** in violation of Rule 11 may **serve** a motion for sanctions on the party
If the party does not **withdraw or correct** the matter within ________ days, the moving party may then ________ with the court
21; **file** the motion for sanctions
94
Rule 11 sanctions - A party who believed an opposing party presented a paper in violation of Rule 11 may serve a motion for sanctions on the party
If the party does not ________ or ________ within ________ days, the moving party may then ________
Withdraw; correct; 10; file the motions for sanctions with the court
95
When injunctive relief is requested, the courts will look to
The **cost of complying** with the injunction or to the **value of the injunction** to the plaintiff; if either exceeds $75,000, the AIC is generally met
96
T/F A P may aggregate their claims against a single D
True
97
A plaintiff may aggregate claims against several Ds when the claim against the Ds is
Joint, such as when there are joint tortfeasors
**If the claims are based on separate liabilities, the claims may not be aggregated**
98
Supplemental jurisdiction
The claim invoking supplemental jurisdiction must arise from a common nucleus of operative fact as the claim with original federal SMJ, and the claim must not be withdrawn under section 1367(b) of the supplemental jurisdiction statute
99
Supplemental jurisdiction- diversity limitation (Ps)
In diversity cases, Ps generally cannot invoke supplemental jurisdiction
Exception to limitation: When there are multiple Ps and the claim by one of them does not meet the amount in controversy
100
T/F In diversity cases, Ps generally cannot invoke supplemental jurisdiction
Exception to limitation: When there are multiple Ps and the claim by one of them does not meet the amount in controversy
True
101
There is no supplemental jurisdiction in diversity cases if the claim is
1) Asserted by a P; and
2) Not like the fact pattern in Hypo 5D
Note: Ds and other non-Ps generally may use supplemental jurisdiction. The limitation does not apply to them
102
Limitation to supplemental jurisdiction in diversity cases
Cannot be asserted by P
Exception to limitation: When there are multiple Ps and the claim by one of them does not meet the amount in controversy
103
Exception to limitation on use of supplemental jurisdiction by Ps in diversity cases
When there are multiple Ps and the claim by one of them does not meet the amount in controversy
104
Supplemental jurisdiction - diversity limitation
Note: Ds and other non-Ps generally may use supplemental jurisdiction. The limitation does not apply to them
105
Supplemental jurisdiction based on diversity is withdrawn when the P is asserting a claim against a
Permissively joined D
106
Permissive joinder requirements
Parties may join as Ps or be joined as Ds whenever
1) Some claim is made by each P and against each D relating to or arising out of the same series of occurrences or transactions; and
2) There is a Q of fact or law common to all the parties
107
With certain exceptions, only ________ may be appealed
Final orders
108
A final order is one that
Disposes of all claims and parties
109
T/F With certain exceptions, only final orders may be appealed
A final order is one that disposes of all claims and parties
[Here, denial of a motion to transfer venue is not a final order bc the case against Jackie is still pending; that is, no claim was disposed of
True
110
Plaintiff's choice of venue is
Rarely disturbed
111
A defendant must serve an answer within
21 days after being served with the summons and complaint
112
T/F When counting the number of days to file an answer, one excludes the day of the event (date of service)
True
113
Indispensable parties
1) Complete relief cannot be accorded among the other parties to the lawsuit without absentee
2) Absentee has interest in subject matter of lawsuit that decision in absence will:
- Impair or impede that person's ability to protect interest, or
- Leave an existing party subject to substantial risk of incurring multiple or inconsistent obligations
114
A D has ________ days after being served with the complaint & summons, to serve a **third-party summons and complaint** on the non party
14
115
T/F A D can implead a third party D without leave of court within 14 days of serving an answer
After that, must obtain court's permission
True
116
T/F Rule 14 of the FRCP allows a D to **implead a third party D who is or may be liable** to the D for all or some of whatever D ends up owing to P
Rule 14 permits the joinder of Rapid Roofers in this case
In order for this claim and this D to be added to the case, **SMJ and PJ** over Rapid Roofers must be proper
True
117
When impleading a third party D, what must exist?
SMJ & PJ
118
The fact that a P and a TPD is citizens of the same state is irrelevant unless
One wishes to assert a claim against another
119
A third party claim is
The joinder by the D in the original action (who is usually called the third-party P) of another person not originally a party to the action (who is called the third-party D)
The impleader claim asserts that the third-party D is or may be liable to the D for all or part of the P's claim against the D
[Impleader claim is for indemnity or contribution]
120
An impleader claim is for
Indemnity or contribution
121
Nature of impleader claim
An implead claim is used to **shift to the TPD** the liability that the D will owe to P
122
T/F There is a right to implead within 14 days of serving the answer
True
123
T/F Once the TPD is joined, the P may assert claims against the TPD and the TPD may assert claims against P, that arise out of the same T/O as the underlying case
True
124
To determine PPB
Apply the "nerve center test" identifying the PPB of a corporation as the **one location where the corporation's high level officer's direct, control, and coordinate the corporation's activities.** While a company may be incorporated in many states, it can only have one PPB
125
T/F In VA, choice of law provisions in contracts for the sale of goods will be enforceable **so long as the transaction bears a reasonable relationship** to the state chosen
True
126
T/F A choice of law provision means that the substantive provisions of the contract will be construed under Maryland law
However, as to procedural matters, VA will apply VA law
However, VA court would apply the shorter of the SOL
True
127
T/F A SOL as to a claim for damages is procedural so a VA court will apply VA's SOL
True
128
In VA, choice of law provisions in contracts for the sale of goods will be enforceable so long as
The transaction bears a reasonable relationship to the state chosen
129
A federal court sitting in diversity will apply the choice of law rules of
The state in which it is sitting
130
T/F VA choice of law rules provide that if the parties choose a state's law to apply, then that will govern, so long as the state chosen bears some reasonable relationship to the transaction
True
131
T/F A sales contract to sell chemicals which can be used on existing structures is not a "construction contract" relating to the construction, alteration, repair or maintenance of a building [therefore, does not invalidate the indemnity clause]
True
132
Harm suffered part of construction =
Violation of indemnity
133
Contract one for the sale of goods rather than construction of a building =
Will not render the indemnity provision void
134
Inconsistent pleadings are allowed, so a D can
Deny any liability to the P in their answer and yet also claim that a third party is liable to them in the event that they are found liable to the P
135
T/F Importantly, every claim asserted in federal court also must have a basis of SMJ
True
136
To implead, a party must
1) File a third-party complaint naming them as a third-party D, and
2) Formally serve them with the third-party complaint
137
A party may implead without leave of court within
14 days of serving an answer
138
R12 requires the D to respond by motion or by answer
Within 21 days
139
In VA, it is unclear whether jurisdiction may be based on
Registering to do business in the forum, [but there are no facts indicating that it has registered in VA]
140
Challenging PJ
Under the federal rules, a D can challenge PJ by filing a motion to dismiss under rule 12(b) and asserting that the court lacks PJ. The D must file the motion before answering **(or as part of its answer)** or risk waiving PJ. No special appearance is required
141
Long arm statute
VA's long arm statute authorizes PJ under certain circumstances
142
To satisfy the U.S. Constitution, a D must have
Such minimum contacts with the forum state that exercising jurisdiction does not offend traditional notion of fair play and substantial justice
143
To have PJ over a nonresident corporate D, the D must have
Reached out to the forum state in some way
144
The court must find that through these contacts, the D
Purposefully availed itself "of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws."
145
In general, the courts consider three factors in determining whether the exercise of jurisdiction would offend traditional notions of fair play and substantial justice:
Contacts, relateness, and fairness
146
To have general jurisdiction, D would have to be
**"At home”** in jurisdiction, meaning that it is **incorporated in VA or has its PPB in VA**
147
Fairness
Where the nonresident D's contact relates to the P's claim, a court is more likely to find that exercising specific PJ is fair and reasonable
148
Motion for lack of SMJ may be raised
Any time, even on appeal
149
Motion for lack of PJ waived if not raised by
R12 motion or answer, whichever is first
150
Motion for improper venue waived if
Not raised by R12 motion or answer, whichever is first
151
Motion for insufficiency of process waived if
Not raised by R12 motion or answer, whichever is first
152
Motion for insufficiency of service of process
Waived if not raised by R12 motion or answer, whichever is first
153
Motion for **failure to state a claim upon which relief can be granted** may be raised
At any time before trial or at trial
154
Failure to join a party under R19 (indispensable party) may be raised
At any time before trial or at trial
155
Under R 12, a motion to dismiss for failure to raise an indispensable party is
1) Not waivable, and
2) Can be raised at any time up until and including the trial
156
General time limit for service of process
90 days
157
Outer time limit for removal based on diversity
1 year
158
Time to answer complaint or file a 12(b) motion if D waived service of process (add 30 days if outside of U.S.)
60 days
159
Time after judgment to file a renewed motion for judgment as a matter of law
28 days
160
Time after judgment to file a motion for a new trial
28 days
161
Expiration of TRO
14 days
162
Time to file jury demand after last pleading directed to the jury triable issue is served
14 days
163
Time to appeal class action certification or denial
30 days
164
A federal court determines jurisdiction at the time of
Removal
165
T/F Federal courts have long held that if diversity
jurisdiction exists when a case is removed, the plaintiff after removal, by stipulation, by affidavit, or by amendment of
the pleadings to reduce the claimed amount below the amount-in-controversy threshold does not deprive the federal
court of jurisdiction
True
166
T/F If diversity exists when case is removed, P after removal, amending the pleadings, cannot deprive federal court of jurisdiction
True
167
T/F A business owner with constructive notice breaches its duty to exercise ordinary care in maintaining its property
True
168
T/F Unlike general negligence claims which might involve direct actions, premises liability focuses on the property owner's failure to maintain a safe environment on their property
True
169
Pre-answer motions - lack of SMJ (timing)
May be raised any time, even on appeal
170
Pre-answer motions - Lack of PJ (timing)
Waived if not raised by Rule 12 motion or answer, whichever is first
171
Pre-answer motions - Improper venue
Waived if not raised by Rule 12 motion or answer, whichever is first
172
Pre-answer motions - Insufficiency of process
Waived if not raised by Rule 12 motion or answer, whichever is first
173
Pre-answer motions - Insufficiency of service of process
Waived if not raised by Rule 12 motion or answer, whichever is first
174
Pre-answer motions - Failure to state a claim upon which relief can be granted (timing)
May be raised any time before trial or at trial
175
Pre-answer motions - Failure to join a party under Rule 19 (indispensable party) (timing)
May be raised at any time before trial or at trial
176
Summary judgment should be granted if the record shows
No genuine issue of material fact such that the moving party is entitled to judgment as a matter of law
[Application of summary judgment standard to a particular case is often debatable]
177
T/F To exercise PJ over a D, a VA court needs to satisfy both the VA Long arm statute and show that the exercise of does not violate principles of due process
True
178
T/F The VA long arm statute provides that a court in VA can exercise PJ over a nonresident if the c/a arises from any of several enumerated activities or conduct
[The P can satisfy at least to of the categories of the VA Long Arm when only one is required]
[The Long Arm includes in these activities "transacting business in the Commonwealth; VA is a single transaction state, and one business transaction leading to the c/a will suffice]
True
179
T/F Transacting biz in the Commonwealth - VA is a single transaction state, and one biz transaction leading to the c/a will suffice
[Here, Cornhusker transacted business in VA by constructing the System of bourbon manufacturing at a warehouse in VA, sending Cornhusker employees to VA to supervise assembly and installation of the racks. The System, put into a warehouse in VA, led to $800,0000 for its work in putting in the System]
True
180
T/F Another category of the Long arm is "contracting to supply services or things in this Commonwealth
[Cornhusker contracted to supply the System in the warehouse in VA and services in installing and assembling the racks]
True
181
T/F It is unclear in VA whether jurisdiction may be based on registering to do business in the forum, but there are no facts indicating that it has registered in VA
True
182
T/F Under the federal rules, a D can challenge PJ by filing a motion to dismiss under Rule 12(b) and asserting that the court lacks PJ. No special appearance required
True
183
Is a special appearance required under the federal rules?
No
184
T/F Contracts for the sale of goods may include implied warranties
True
185
To prove implied warranties, the P bears the burden of
Proving breach and that the breach was the proximate cause of the loss; notify D of the breach; and prove damages (i.e. the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted)
186
Joint tortfeasors are
Never necessary
187
Even though venue is proper, venue may be transferred to another federal district where
The action "might have been brought" or to which all parties have consented **when the parties or witnesses might be greatly inconvenienced by trial in the current venue**
[in conformity with the rules governing 1) PJ over, 2) SMJ, and venue]
188
Specific PJ =
PJ over instant cause of action only
189
In absence of PJ, court would have to have
GJ
190
T/F Under the federal rules, a D can challenge PJ by filing a motion to dismiss under rule 12(b) and asserting that the court lacks PJ
The D must file the motion before answering (or as part of its answer) or risk waiving PJ
No special appearance is required
True
191
A D can challenge PJ by
Filing a motion to dismiss under rule 12(b) and asserting that the court lacks PJ
192
When must D file the motion to dismiss under rule 12(b) asserting that the court lacks PJ?
The D must file the motion before answering (or as part of its answer) or risk waiving PJ
No special appearance is required
193
T/F The denial of a motion to transfer venue is not a final order
True
194
Is a denial of a motion to transfer venue a final order?
No
195
T/F A third party claim, or impleader claim is one where a defending party like Davis brings in a new party
A D uses an impleader claim to shift liability to the third-party D
If the D is found liable to the P, the D will try to get the third-party D to pay all or part of the D's liability
True
196
