Brainscape's Knowledge GenomeTM

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


See full index

Bar Prep Course > Federal Civ Pro > Flashcards

Federal Civ Pro Flashcards

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

SMJ - Federal Question

A

Fed DCs have original jdx over all civil actions “arising under the Constitution, laws and treaties of the US” HOWEVER a violation of a federal statute does NOT provide for a fed COA UNLESS the statute also provides a remedy for the violation.

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

When does a case arise under FQJ?

A

When it appears on the face of the complaint that the P has pled a federal question.

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

Does a federal defense give you FQJ?

A

NOPE. IT DOES NOT.

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

For SMJ, need either:

A

Federal Question
OR
Diversity of Citizenship

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

Diversity - how to determine citizenship

A

Individual - citizen where domiciled, not necessarily where they live
-Domicile - presence AND intent to remain in that state

Corporation

  • place of incorporation
  • principal place of business (Hertz nerve center)

Amount in Controversy
-MORE than $75k

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

When to look at diversity of the parties:

A
  • At the time of FILING

- AND at the time of removal IF there’s been a voluntary change by the plaintiff. (Plaintiff can’t appeal)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Supplemental Jdx

A

A fed DC may hear claism that they would not ordinarily have jdx over (like state law claims that do NOT involve diversity jdx) if those claims arise out of the same transaction or occurrence as a claim over which the court would have jdx.

KEYS:

  1. same transaction or occurrence, or
  2. common nucleus of operative fact.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Can new parties be added to defeat diversity?

A

NOOOOOO. If they are added, case needs to be remanded/dismissed for lack of DJ.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Minimum Contacts - PJ

A

General jdx - systematic and continuous contact with the forum

Specific jdx - Isolated contacts purposefully directed at the forum

A single contact can suffice to establish PJ, but where jdx is based on a SINGLE contact, the nature and quality of the contact is determinative

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Can a D reasonably anticipate out-of-state litigation?

A

NOOOO UNLESS the D has purposefully availed themselves of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.

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

Factors for minimum contacts:

A
  1. the quantity of contacts with the state
  2. the nature and quality of those contacts
  3. the connection or relationship between the contacts and the COA
  4. the state’s interest in providing a forum
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Long Arm Statutes

A

States have enacted long arm statutes that allow courts to serve process and exercise jdx over a party located outside the state.

Allow for PJ over out-of-state Ds who have NOT consented to jdx nor purposefully availaled themselves of the state’s benefits.

An individual state may choose to not grant its courts the full power that the state is Constitutionally permitted to exercise.

A particular exercise of PJ must not only be permitted by Constitutional doctrine, but be statutorily authorized as well.
-NEED BOTH. STATE NEEDS BOTH. Would assume it does, unless they give some sort of statute limiting as such.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Timing of Service

A

A summons MUST be served with a copy of the complaint within 120 days of filing by ANY PERSON who is at least 18 years old and NOT A PARTY

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

Proper service

A
  1. Handing it to the person
  2. Leaving it:
    - at the person’s office with a clerk or other person in charge, or if no one is in charge, in a conspicuous place in the office;
    - at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there, or;
  3. Mailing it to the person’s last known address - in which even service is complete upon mailing.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Venue - where can you bring a civil action?

A

A civil action may be brought in:
1. a judicial district in which ANY D RESIDES, if all Ds are residents of the state in which the district is located;

  1. 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 th e action is situated, OR
  2. if there is no district in which an action may otherwise be brought, any judicial district in which ANY D IS SUBJECT TO THE COURT’S PJ with respect to such action.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Forum Non Conveniens

A

A court MAY refuse to take jdx over matters where there is a more appropriate forum available to the parties.

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

Can you waive SMJ?

A

NOPE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Can you waive PJ?

A

YEP. If a party appears in a court without objecting to the court’s lack of jdx over them, that objection is forfeited.

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

For PJ, what needs to happen?

A

Before a court can exercise power over a party, the Constitution requires that the party have a sufficient nexus with the forum in which the court sits either by:

  1. Consent
  2. Service on the D while in the jdx, OR
  3. Sufficient minimum contacts.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Can a plaintiff himself serve the summons on the defendant?

A

NOPE. Must be served by a person who is at least 18, and who is a NON PARTY.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

For diversity - venue proper where?

A
  1. the district where any D lives, provided that ALL Ds are located in the same state;
  2. the district where a substantial portion of the events occurred;
  3. the district where any D is subject to PJ.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Home Defendant Rule - in DIVERSITY only.

A

If a P files suit in state court in a D’s home state, that D CANNOT remove to federal court, even if the federal court would otherwise have SMJ over the action.

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

When can you remove? (type of action)

A

A case that was originally brought in state court may be removed to fed ct if the P could have brought the case in fed ct initially.
In such case, the D has the right to remove to fed ct

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Timeline for removal

A

D has 30 days to remove from service of the initial pleading.
EACH D HAS 30 DAYS (regardless of DJ 1 yr limitation)

If case is not removable as originally filed, and the complaint is amended to make the case removable (FQ), OR an “other paper” surfaces that makes the case removable (DJ - AIC over $75k) - get additional 30 days to remove.

IN DJ - ONLY GET 1 YR TO REMOVE UNLESS BAD FAITH. 1 yr trumps 30 days from second window.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Consent to removal?

A

All properly joined D’s must consent to the removal.

Don’t need consent:

  • Fraudulently joined
  • Claim that cannot be heard in federal court (FQ - Workman’s comp - can remove without their consent, will be severed and remanded in FC)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Who can remove?

A

ONLY a D.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q 
A party may assert which defenses by motion?
Rule 12(b)
A
  1. Lack of SMJ
  2. Lack of personal jdx
  3. Improper venue
  4. Insufficient process (papers are bad)
  5. Insufficient service of process (way papers were served was bad)
  6. Failure to state a claim upon which relief can be granted; AND
  7. Failure to join a party under Rule 19
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

How can you respond to a complaint?

A

By either an answer, OR a motion

Motion appropriate when we're asserting several defenses. 
Rule 12(b)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

A party waives most defenses listed in Rule 12 by omitting it from a motion or failing to include it in a responsive pleading or in an amendment, EXCEPT:

Three defenses that you DON’T waive by failing to include them in a responsive pleading

A

12(b)(1) - lack of SMJ - can be brought ANYTIME during litigation
12(b)(6) - failure to state a claim upon which relief can be granted - can be brought anytime BEFORE TRIAL ENDS
12(b)(7) - failure to join a party under Rule 19 - can be brought any time BEFORE TRIAL ENDS

30
Q

Amending a pleading as a Matter of Course

A

A party MAY amend its pleading ONCE as a matter of course:

  • within 21 days after serving it, OR
  • if the pleading is one to which a responsive pleading is required. 21 days after service of a responsive pleading or 21 days after service of a motion.
31
Q

Time to Respond to an Amended Pleading

A

Any required response to an amended pleading must be made within the time remaining to respond to the original pleading
OR
within 14 days after service of the amended pleading, whichever is later

32
Q

Required Disclosures - Witnesses

A

A party MUST, WITHOUT AWAITING A DISCOVERY REQUEST, provide to the other parties the name and known address and phone number of EACH individual LIKELY to have discoverable information - along with the subjects of that information - that the disclosing party may use to support its claims or defenses.

33
Q

Required Disclosures - Information

Discoverable

A

A copy of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses

34
Q

Required Disclosures - Informaiton

NON-Discoverable

A

Ordinarily, a party may NOT discover documents and tangible things that are prepared in ANTICIPATION OF LITIGATION or for trial UNLESS the party shows that it has SUBSTANTIAL need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means

35
Q

Joinder of claims

A

A claimant may consolidate all claims that they have against an individual who is already a party to the case

Claimants may bring NEW claims even if these new claims are NOT related to the claims already stated

Joinder of claims requires that the court have SMJ over each of the new claims.

36
Q

Compulsory Counterclaim

A

A pleading MUST state as a counterclaim ANY claim that the pleader has against an opposing party if the claim arises out of the TRANSACTION OR OCCURRENCE that is the subject matter of the opposing party’s claim, AND DOES NOT REQUIRE adding another party over whom the court whom the court cannot acquire jdx.

37
Q

Permissive Counterclaim

A

A pleading MAY state as a counterclaim against an opposing party any claim that is not compulsory

38
Q

When do you have a class action?

A 
CANT
One or more members of a class may sue or be sued as representative parties on behalf of all members ONLY if:
  1. There are questions of law or fact COMMON to the class;
  2. The representative parties will fairly and ADEQUATELY protect the interests of the class
  3. The class is so NUMEROUS that joinder of all members is impracticable
  4. The claims or defenses of the representative parties are TYPICAL of the claims or defenses of the class.
39
Q

Limitations on Monetary Sanctions - Rule 11

A

The court MUST not impose a monetary sanction unless it first issues a show-cause order before voluntary dismissal or settlement of the claims

Court can’t impose sanctions on their own without a show-cause order first. Once you have that, THEN you can sanction

40
Q

Must the court have PJ over each of the Ds named in a class action?

A

YES. MUST have PJ over all the Ds.

NOT ABOUT THE PLAINTIFFS. Just about the defendants.

41
Q

Before issuing an order to impose sanctions, must the court allow the sanctioning attorney an opportunity to be heard?

A

YEP.

42
Q

If an atty does NOT object to a leading question during a deposition, can they object to question coming in at trial?

A

NO.
Objections are necessary when a question is leading, vague or unintelligible FAILURE TO TIMELY OBJECT SERVES AS A WAIVER.

43
Q

Depositions

When can counsel instruct a witness to refuse to answer?

A

ONLY IF:
1. The answer would be privileged
OR
2. If there is an order limiting the scope of the deposition

44
Q

AIC requirement for class action?

A

$5 million

45
Q

Depositions

Are you required to object at a deposition?

A

YES, you’re REQUIRED to object to those defects that are immediately curable.
Such defects include procedural matters (like the manner of taking a deposition and the form of questions or answers).

46
Q

Pleadings - must contain

A

A claim for relief MUST contain:

  1. a short and plain statement of the grounds for the court’s jdx
  2. A short and plain statement of the claim showing that the pleader is entitled to relief, AND
  3. A demand for the relief sought, which may include relief in the alternative or different types of relief.
47
Q

Pleadings - fraud

A

When pleading fraud, MUST detail particularities in the complaint.

48
Q

Pleadings - factual allegations?

A

Wile legal conclusions can provide the framework of a complaint, they MUST be supported by factual allegations.

When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

49
Q

Pleadings - special damages

A

If an item of special damage is claimed, it MUST be specifically stated in the COMPLAINT as the P will not otherwise be permitted to go into evidence of it at the trial, bc the D cannot also be prepared to answer it.

Ex. the woman who was injured after accidentally eating glass, and she missed out on voice-over contracts - the contracts are special damages, and she would have had to put it in the complaint.

50
Q

12(b)(6) - Failure to state a claim upon which relief can be granted

A

How suits with insufficient legal theories are dismissed pre-trial. Usually - BEFORE DISCOVERY.

While a complaint attacked by Rule 12(b)(6) motion to dismiss does NOT need detailed factual allegations, a P’s objection to provide the grounds of his entitlement to relief requires more than labels and conclusions.

A formulaic recitation of the elements of a cause of action will NOT do.

51
Q

Summary Judgment

A

The court SHALL grant a motion for SJ IF the movant shows that there is NO GENUINE DISPUTE as to any material fact and the movant is entitled to judgment as a matter of law

52
Q

How does a P dismiss an action? (without court order)

A

May dismiss WITHOUT A COURT ORDER by filing a notice of dismissal before the opposing party services either an answer or a motion for SJ

53
Q

Is a P’s voluntary dismissal with prejudice?

A

NO. Unless the notice states otherwise, the dismissal is WITHOUT prejudice.

HOWEVER - if the P previously dismissed any federal or state court action based on or including the same claim, a notice of dismissal operates as an ADJUDICATION ON THE MERITS

54
Q

Preemptory challenge

A

The EP clause precludes jurors from being stricken SOLELY on account of their race of gender.

55
Q

Remittitur

A

Verdict is too high

A DEFENDANT may seek a new trial on damages; remittitur.

56
Q

When will a new trial be granted on a claim that damages are excessive?

A

ONLY WHERE the award is so great as to SHOCK THE CONSCIENCE of the court and to create the impression that the jury was motivated by passion, corruption or prejudice, or has misconceived or misconstrued the facts or the law.

57
Q

Who makes a motion for SJ?

A

Either party, both parties. Saying there’s not enough for us to move forward.

58
Q

Timing to file a motion for SJ?

A

Made at the end of discovery, no more than 30 days after the close of all discovery.

59
Q

Effect of a motion for SJ?

A

If successful, discharge of the case.

60
Q

What is the standard for motion for SJ?

A

The court SHALL grant SJ if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

61
Q

When is a motion for a new trial appropriate?

A

For several reasons, including:

  • jury misconduct
  • reversible error

Ex. When judge commits reversible error by allowing a potentially interested juror to remain empaneled and deliberate with the other jurors.

62
Q

Timing to file a motion for a new trial

A

Motion must be filed NO LATER than 28 days after the entry of judgment.

Rule 59(b)

63
Q

Motion for New Trial

A

Rule 59

The court may, on motion, grant a new trial after a jury trial, for ANY reason for which a new trial has heretofore been granted in an action at law in federal court.

64
Q

Additur

A

Verdict too low

65
Q

Additur - when can a court grant a motion for new trial on basis of additur?

A

A trial court MAY grant a new trial where the verdict is PLAINLY WRONG or without credible evidence to support it.
A judge is NOT permitted to substitute his judgment for that of the jury merely bc he would have reached a different result.

NOT PERMITTED IN FEDERAL COURTS - 7th Amendment violation.

66
Q

Additur - on what grounds?

A

A motion for a new trial on damages, or additur, if founded on a claim that the jury verdict is INADEQUATE as a matter of law.

Where the evidence overwhelmingly favored the P on the issue of liability (fault), the sole issue before the court is whether to grant P a new trial on the issue of damages.

67
Q

Rule 60 - Relief from Judgment

A

A court may relieve a party from a final judgment, order, or proceeding for the following reasons:

  • Mistake, inadvertence, surprise, or excusable neglect
  • Newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under fraud, misrepresentation, or misconduct by an opposing party.
68
Q

Timing for Rule 60 motion - relief from judgment

A

Must be made within a REASONABLE TIME - and reasons no more than a year after the entry of the judgment or order or the date of the proceeding.

69
Q

Progression of a Federal Civil Action

A
  • Service of Process -> Summons + Complaint [Rule 4,7,8,9,15]
  • Pre-Answer motions to dismiss [Rule 12(b)]
  • Answer [Rules 7,8]
  • Discovery [Rules 26, 30, 31, 33, 34, 36, 37, 45]
  • Summary Judgment [Rule 56]
  • Trial [7th A, Rules 38,48,49,51,52]
  • Motion for Judgment as a Matter of Law [Rule 50(a)]
  • Verdict + Renewed Motion for JML [Rule 50(b)]
  • Motion for a New Trial [Rule 59]
  • Judgment and Enforcement
  • Motion for Relief from a Final Judgment [Rule 60(b)]
  • Appeal [Federal Rules of Appellate Procedure]
70
Q

Motion for Judgment as a Matter of Law

A

Rule 50
If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(a) resolve the issue against the party, AND
(b) grant a motion for JML against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

MUST BE MADE BEFORE THE CASE IS SUBMITTED TO THE JURY, otherwise won’t be able to submit a “renewed motion for JML” after the verdict/judgment.

71
Q

Renewed Motion for Judgement as a Matter of Law

A

MUST HAVE MADE THE INITIAL MOTION FOR JML DURING TRIAL, BEFORE CASE WENT TO THE JURY.

If you did^ then you have 28 days after the entry of the judgment to file renewed motion for JML.

72
Q

In a statutory interpleader case, does service of the summons and complaint establish personal jurisdiction?

A

YES. FRCP 4(k)(1)(c) - service of the summons and complaint establishes PJ over a D when the service is authorized by such a federal statute.

So purposeful contacts with the US - you’re good.

Bar Prep Course (8 decks)

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