Federal Civil Procedure Flashcards

Question

Venue

Answer 1

Venue is dictated by the (1) _residency_ of the ∆s, the (2) _location of events_, or (3) where at least one ∆ is subject to _personal jurisdiction_. Where both ∆s are in the same states, then venue is proper **where any one ∆ resides**. If the ∆s reside in multiple states, then venue is proper at the **location of the harm**.

Answer 2

Venue can be transferred upon (1) agreement, (2) convenience, (3) in the interests of justice, or (4) under forum non conveniens. (1) When all parties **agree** to transfer (*even if they all agree to transfer somewhere it would be normally not allowed*). (2) If the case could have been filed in another court originally and transfer would be **necessary for the convenience of the parties and witnesses**. (3) If the case was filed in an **improper venue** the court can dismiss OR transfer. (4) If the most convenient forum is not in the U.S., the court will dismiss without prejudice so the ∆ can refile in the other country.

Answer 3

A corporation can be served by either (1) delivering to an **officer** of the corp., (2) delivering to a **manager or general agent**, or (3) delivering to **any other authorized agent.**

Answer 4

Unincorporated associations are citizens of *every state* in which a member is a citizen — even if that is all 50 states. Unincorporated associations include LLCs or unions.

Answer 5

When the π serves the ∆, but the ∆ does not respond. First, the clerk will file the default. Then, default may be entered by the court. A *clerk* may enter default judgment only when the amount sought is a **sum certain** and the defaulting party has **failed to appear**. _Sum Certain_: An amount of money that is certain by computation that it belongs to you, and the clerk does not have to weigh any evidence as to that fact.

Answer 6

Corporations are citizens of the state in which they were incorporated and their principal place of business ("nerve center" test).

Answer 7

Discovery can be enforced by either a motion to compel or sanctions. To file a motion to compel, the party must have made a **good faith effort** to confer or attempt to confer with the resistor.

Answer 8

The request to admit or deny a fact. A party has **30 days** to **respond**, but can object to questions outside of the scope of discovery. If a party doesn't know enough information to admit or deny, they must say that they have at least made a **reasonable attempt to ascertain the truth** but still they *lack the information to admit or deny.*

Answer 9

A **permissive** counterclaim does not arise out of the same transaction or occurrence, and is therefore not required to be brought. A **compulsory** counterclaim does arise out of the same transaction or occurrence, and therefore must be brought or the claim is forfeited.

Answer 10

Regarding questions of law. Zero deference given to the lower court; addresses the legal issue as if it has never been addressed.

Answer 11

OBJECTIVE: To preserve the **status quo**. Will be entered if: - There is a likelihood of success on the merits. - A threat of irreparable harm. - The balance of hardships is in favor of the π. - The injunction would not be injurious to the public interest. - The party seeking an injunction has paid security. HELP - **H**arm - **E**valuation of hardships - **L**ikelihood of success on the merits - **P**ublic policy/feasibility of court supervision If granted, the issue must be tried within 6 months unless agreed to otherwise.

Answer 12

To secure a TRO **without notice**, the π must show an _immediate_ risk of irreparable harm. Only last long enough for the court to consider and resolve a request, but no longer than **14 days**. Considered to be **stopgap measures until the court decides whether to grant a preliminary injunction.**

Answer 13

1. Interrogatories; 2. Requests for admission; 3. Requests for production; 4. Requests for mental or physical exam; 5. Depositions; 6. Subpoenas.

Answer 14

MTD must be filed either *before the answer*, within ***21** days of the answer*, or *within **60** days of the answer* if service was waived. Grounds for a MTD: 1. Lack of subject-matter jurisdiction. (Can never be waived) 2. Lack of personal jurisdiction. (Waived if not in first motion/answer) 3. Improper venue. (Waived if not in first motion/answer) 4. Insufficient process. (Waived if not in first motion/answer) 5. Insufficient service. (Waived if not in first motion/answer) 6. Failure to state a claim upon which relief can be granted. (Must be brought before trial ends, or waived) 7. Failure to join an indispensable party. (Must be brought before trial ends, or waived)

Answer 15

FRCP 56(a) allows a summary judgment motion to be granted only if there is no **genuine issue of material fact** and the movant is entitled to **judgment as a matter of law**. A motion for SJ may be supported by depositions, documents, ESI, affidavits or declarations, admissions, interrogatories (anything besides the pleadings). The **moving party** must prodice evidence to show that there is no genuine issue of material fact. **Burden then shifts to the nonmoving party**, who must produce evidence to show that there is a GIMF. Motion is viewed in the light most favorable to the nonmoving party. Summary judgment motions must be made any time *before* **30 days** after discovery closes. (So can be made during discovery)

Answer 16

Parties are permitted to discover any **non-privileged information** that is **relevant to the _claim or defense_**, regardless of if it will be relevant at trial. Discovery must be **proportional to the needs of the case**, considering the importance of issues, amount in controversy, parties' access to the information, resources, and whether the burden or expense of discovery would outweigh the benefit. Non-testifying expert reports are generally un-discoverable without extraordinary need. Only with a court order may a party discover unprivileged information that is relevant to the *subject matter of the case* but not to any existing *claim or defense.*

Answer 17

Up to **25** questions may be submitted to the other party, in writing, to seek facts or contentions. The other party then has **30 days** to respond.

Answer 18

Within **14 days** after the Rule26(f) scheduling conference, you must provide the name and contact information of: 1. All witnesses and/or parties who may have discoverable information, 2. Documents, 3. ESI, 4. Tangible documents, 5. A computation of damages, and 6. Any insurance agreements.

Answer 19

_If the expert is one who has been retained/paid to provide expert testimony, or whose employment regularly involves giving expert testimony_, they must be disclosed at least **90 days before trial** along with their **written expert report**, which must include: 1. All **opinions** they will testify to; 2. All **facts and data considered** in making their opinion; 3. Any **exhibits** to be used; 4. Expert's **qualifications**; 5. All cases in the last 4 years that they've testified in; 6. A statement of **compensation**. If the expert is _not specially hired to make an expert opinion_, and expert report is not required, and they must only disclose: 1. The **subject matter** on which they will testify to; and 2. A **summary of the facts and opinions** that they will testify to.

Answer 20

At least **30 days before trial**, you must provide a list of **witnesses**, witnesses that may be called **if need b**e, any **testimony** that will be given via deposition or transcript, and **all physical documents or other evidence** that plans to be admitted.

Answer 21

A court will have personal jurisdiction via minimum contacts if: 1. The ∆ has established **minimum contacts** (caused harm, does business, or has property in the state), AND 2. The claim against the ∆ **arises from those contacts**, AND 3. Personal jurisdiction will not **offend the notions of fair play and substantial justice** (burden is on the ∆ to prove that it would).

Answer 22

Personal jurisdiction arises from the Due Process Clause of the 14th Amendment, and must satisfy both the U.S. Constitution and the state's long-arm statute. Personal jurisdiction is the court's power over a party, including the power to render judgments affecting that party's rights. Can be established by: 1. Residency, (party is domiciled in the state) 2. Consent/waiver, (party consents to or waives personal jurisdiction) 3. Service, (party is served while in the state) 4. Minimum contacts, or 5. "At home" jurisdiction. (extremely high bar)

Answer 23

Must answer within **21 days** of service, or within **60 days** if service is waived. An answer must specifically admit or deny each allegation, or it is deemed admitted. Answers must also include ANY and ALL potential defenses — if a defense is not included, it is deemed forfeited.

Answer 24

Same concept as summary judgment, except it occurs during trial and not after discovery. Can also be brought post-trial (renewed) if raised in-trial first.

Answer 25

A jury may have 6-12 members, which are selected during *voir dire*. A party will have unlimited challenges *for cause*, but must be able to articulate the nature of the juror's unfitness. A party will have only **three** preemptory challenges in which the juror is *automatically dismisses*, and no justification is needed unless it gives rise to gender or race discrimination.

Answer 26

A case arises under federal law if the federal question appears **on a fair reading of the plaintiff's well-pleaded complaint.**

Answer 27

A human's domicile is the state in which they reside with the intent to remain indefinitely.

Answer 28

Diversity jurisdiction is measured from the **time the suit is filed**, however, amended complaints that add or dismiss parties may affect it.

Answer 29

A **impleaded** ∆ will be subject to the personal jurisdiction of a federal court if they are served **within 100 miles** of the courthouse.

Answer 30

Process must be served within **90 days of filing**.

Answer 31

An answer must be filed within **21 days of service**, or within **60 days** if service is waived.

Answer 32

An answer or complaint must be amended within **21 days** of service of the _initial pleading_.

Answer 33

When the ∆ brings a claim against a person who is not already a party to the action. The impleader action must allege that the third party is **responsible** for *some* or *all* of the liability. Must be filed within **14 days** of serving the answer. Two most important kinds of impleader claims are indemnity and contribution claims. | Usually contributory negligence or indemnity claims.

Answer 34

If a **single plaintiff** brings multiple claims against a **single defendant**, the court will aggregate the claims to reach the amount in controversy. Claims against multiple defendants or from multiple plaintiffs will not be aggregated.

Answer 35

When a court increases the amount awarded by a jury. Is not allowed in federal court, only state.

Answer 36

A court can assert jurisdiction over a state law claim that raises a federal issue if: - The federal question is **necessarily raised** (Well Pleaded Complaint Rule); - The federal question is **actually disputed**; - The federal question is **substantial**; and - **Capable of resolution** in federal court without disrupting the federal-state balance.

Answer 37

Bar re-litigation of an issue if: (1) The issue was **actually litigated and determined/decided** in the first suit; (2) The issue was on the merits and **essential to the judgment** (not a collateral issue); (3) There was a **valid final judgment on the merits**; (4) The party against whom preclusion is sought had a full and fair **opportunity and incentive to litigate** in the first suit. SAFE — (S)ame issue, (A)ctually litigated, (F)inal judgment on the merits, and (E)ssential to the judgment.

Answer 38

1. Grounds for subject-matter jurisdiction. 2. Statement of facts that are sufficient to establish a claim upon which relief can be granted. 3. A demand for judgment and relief. If alleging **fraud or mistake**, the complaint must be plead with **particularity**.

Answer 39

Supplemental jurisdiction allows a claim without federal question or diversity jurisdiction to "piggyback" onto a claim that does have federal question or diversity jurisdiction. Will be permitted if the claims **arise out of the same transaction or occurrence** — if they are unrelated, no supplemental jurisdiction. Additionally, if the anchor claim is based on diversity jurisdiction and the piggyback claim is joined under Rules 14, 19, 20, or 24, then supplement jurisdiction is not available.

Answer 40

A ∆ can move a case from state to federal court if it could have been originally filed in federal court. Can be removed only to the federal court in the state in which it was originally filed (Home State Defendant Rule). Must remove within **30 days** of service.

Answer 41

(Eerie) If there is a federal law that is **valid/directly on point**, then the federal law will apply (usually the FRCP). However, if there is no federal law on the matter, then the federal court will apply the law of the state in which it sets, in order to avoid unfairness and forum shopping.

Answer 42

1. _Numerosity_: Must have too many πs to join in a regular suit. 2. _Commonality_: All πs must have the same question or law and/or fact. 3. _Typicality_: The claim must be typical for a class action. 4. _Representativeness_: The representative must fairly protect the interests of the class.

Answer 43

Federal courts will have jurisdiction over actions between citizens of different states where the amount in controversy exceeds $75,000. Diversity must be complete, all plaintiffs and all defendants must be from separate states (unless it is a class action, where minimal diversity is req.). Shared citizenship between any plaintiff and any defendant destroys diversity jurisdiction.

Answer 44

Pertains to inherently discretionary questions, such as admitting evidence, ruling on motions, or instructing the jury.

Answer 45

Bars re-litigation of a case if it has the: (1) Same parties in the same situation (same π and same ∆); (2) Same transaction or occurrence; (3) A valid final judgment on the merits (VFJM). NOTE: If a case was dismissed for lack of proper PJ or SMJ, improper venue, failure to join a party, voluntary dismissals, or any other dismissal "without prejudice", it is NOT a final judgment on the merits and will not preclude a claim. Any other dismissal _with prejudice_ is a VFJM.

Answer 46

An exception to the final judgment rule. If an order pertains to a matter unrelated to the merits, conclusively decides an issue, and delaying appeal until final judgment would effectively deny appellate review, then the issue may be appealed prior to a final judgment on the merits.

Answer 47

A claim filed by a party against a co-party. Must arise from the same transaction or occurrence, but once filed, the co-party may bring a compulsory or permissive counterclaim.

Answer 48

Each party gets one amendment of their pleading as a matter of right. A complaint must be amended within **21 days** of serving, or within **21 days** of service of the answer or motion to dismiss. An answer can be amended within **21 days** of service. If longer than 21 days, a party may be able to amend with **permission by the opposing party or the court**. A party can make amendments before trial or *even during* and after trial.

Answer 49

1. The verdict was against the great weight of evidence. 2. The damages were "grossly excessive or shocks the conscience." 3. There was procedural error or misconduct that affected the outcome of the trial and was timely objected to in-trial. 4. There is newly discovered evidence.

Answer 50

A motion for summary judgment must be filed within **30 days** from the close of discovery.

Answer 51

A motion for removal must be filed within **30 days** of service.

Answer 52

Asking a court to set aside or "undo" a judgment. 6 grounds: 1. Mistake/inadvertence/excusable neglect; 2. Newly discovered evidence; 3. Fraud/misrepresentation/misconduct; 4. The judgment is void; 5. The judgment has been satisfied; 6. "Any other reason justifiable."

Answer 53

When a non-party is interested in the claim but has not been joined. A party may be permitted to intervene when they *claim an interest** relating to the subject matter, and they **wouldn't be able to protect that interest** without intervening.

Answer 54

Federal courts will generally not exercise jurisdiction over probate matters such as the validity of a will or administration of an estate to preserve state control over wills and estates.

Answer 55

The reduction of a jury award if the court thinks it is grossly excessive.

Answer 56

A party is necessary if the court _cannot grant complete relief without them_ and the party _claims an interest in the subject of the action_. - Absent party must be **necessary** (usually joint tortfeasors aren't necessary). - Necessary party **must be able to be joined** (court must have personal jurisdiction and diversity/subject matter jurisdiction can't be destroyed upon joining) If the party can't be joined because it would destroy subject matter jurisdiction, they may be joined if they are **indispensable**.

Answer 57

A state court may exercise personal jurisdiction over an out of state ∆ if authorized by the state's long-arm statute. Jurisdiction under a long-arm statute must satisfy constitutional requirements: - The ∆ must have such minimum contact with the state so as not to offense traditional notes of fair play and substantial justice. For jurisdiction to be constitutional under a "minimum contacts" analysis — 1. The ∆ must have established a minimum contact with the forum state; 2. The claim arose from that contact; and 3. The exercise of jurisdiction wouldn't offend FP&SJ.

Answer 58

1. Failure to state a claim upon which relief can be granted. (Can be raised at any time before trial ends) 2. Lack of subject-matter jurisdiction. (Can be raised at any time, even in appeal)

Answer 59

1. Lack of personal jurisdiction. 2. Improper venue. 3. Insufficient service. 4. Insufficient process.

Answer 60

A juror can be challenged for cause and automatically dismissed without using a preemptory challenge if — - They have a felony conviction or any other "inherent disqualification". - The judge believe that a bias may exist (ex: relationship with either party). - An actual bias does exist (the juror would actually use predetermined beliefs or principles to decide the case instead of the facts).

Answer 61

Rule 11 requires that every pleading, motion, or other paper filed with the court be signed. Upon signing, the party certifies that **to the best of the person's knowledge, information, and belief**, _formed after a reasonable inquiry_: - The document isn't presented for an **improper purpose**, such as to harass or delay. - The claims/defenses are **warranted by law**. - The **factual contentions or denials have evidentiary support** or reasonably believed based on lack of information.

Answer 62

In general, interlocutory orders are not final adjudication on the merits and cannot be appealed before a final judgment. However, under the Collateral Order Doctrine, interlocutory orders can be appealed when/if — - It conclusively determines the disputed question; - It resolves an important issue that is completely separate from the merits of the case; - It is effectively un-reviewable on appeal from the final judgment.

Answer 63

A party is entitled to demand the discover of any matter that is relevant to the claim or defense of any party, not unreasonably cumulative or burdensome, and not privileged. A party is entitled to discovery of both material that is relevant and will be admissible at trial, as well as any information “that appears reasonably calculated to lead to the discover of admissible evidence.”

Answer 64

Electronic discovery refers to discovery regarding the exchange of electronically stored information, or ESI. ESI that is potentially relevant should be **placed on a legal hold** to ensure that the data will not be destroyed. The court may impose sanctions were electronically stored information that *should have been preserved in the anticipation of litigation* is lost because a party **failed to make reasonable steps to preserve it** and cannot be restored or replaced. However, a court will NOT impose sanctions on a party for losing electronically stored information as the result of a **routine, good faith operation** of the electronic system.

Answer 65

The court may impose sanctions that are no greater than necessary to cure the prejudice to the other party. If a party acted with intent to destroy ESI, the following sanctions may be imposed: (1) presume that the lost information was unfavorable to the party; (2) instruct the jury that it may or must presume the information was unfavorable to the party; or (3) dismiss the action or enter a default judgment.

Answer 66

A plaintiff may dismiss a case voluntarily by notice _before_ the defendant serves an answer or a motion for summary judgment. The first voluntary dismissal is without prejudice, however, a second voluntary dismissal serves as an **adjudication on the merits**.

Answer 67

A ∆ who is served with process while in the forum state is likely to be subject to the court's personal jurisdiction even if his or her presence in the state is temporary or entirely unrelated to the lawsuit. However, if the ∆'s presence in the forum state is solely due to **force, fraud, or participation in another judicial proceeding**, service may NOT establish personal jurisdiction.

Answer 68

Judges may enter monetary sanctions on their own motion (sua sponte), however, they may do so only after entering a show-cause order (before the claim is dismissed or settled) and giving the lawyers a reasonable opportunity to respond.

Answer 69

A lawyer may do so only when necessary to (1) **preserve a privilege**, (2) to **enforce a limitation ordered by the court**, or (3) to **present a motion**. Otherwise, the witness must be allowed to answer the question, even if the answer ultimately will be deemed to be inadmissible. The answer is taken subject to the objection, which the court can rule upon later, if necessary.

Answer 70

A court can dismiss an action of its own accord when the chosen forum would be seriously inconvenient and there is an adequate other forum available. Dismissal on the basis of the forum non conveniens doctrine is appropriate when there is a much more convenient forum **outside the United States federal court system.**

Answer 71

Under the Class Action Fairness Act, in class actions where the class contains over 100 people and the amount in controversy exceeds $5,00,000, diversity only has to be “minimal.” At least one plaintiff has to be diverse from at least one defendant.

Answer 72

Under Rule 11, an attorney who presents a pleading to the court certifies that to the best of her knowledge, information, and belief: (1) the document is not being presented for any improper purpose; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are either warranted on the evidence or are reasonably based on belief or a lack of information.”

Answer 73

A judgment, decision, or ruling that a court will make based on the law, after hearing all of the relevant facts and evidence presented in court. Will prevent parties from re-litigating an issue under claim or issue preclusion if all other elements are met. *What is not a VFJM?*: Any dismissal without prejudice — for either lack of SMJ, PJ, improper venue, failure to join a party, or voluntary dismissal. *What is a VFJM?*: Any final judgment, order, or dismissal with prejudice.

Answer 74

Under the Second Restatement of Contracts, contract may expressly stipulate that the laws of a particular state shall govern all rights and obligations arising under the contract. Such a stipulation is deemed valid and enforceable _unless_ the chosen state has **NO substantial relationship to the parties/transaction** and there is no other reasonable basis for that choice of forum. Or, if it is **contrary to a fundamental policy** of the forum which has a **materially greater interest than the chosen state** and which would be the state of the applicable law in absence of an effective choice of law by the parties.

Answer 75

Where there are only a few contacts with the state, the contacts must directly relate to the cause of action asserted. A nonresident ∆ is subject to specific jurisdiction when the ∆ purposefully availed themselves to the privilege of conducting activities in the state, such that exercise of jurisdiction would be **foreseeable**. In determining fairness, the court will consider: - The burden on the ∆; - The interests of the forum state; - The π's interests in obtaining relief; - The interstate judicial system's interest in efficiency; and - The shared policy interests of the states.

Answer 76

Jurisdiction under a long-arm statute must satisfy constitutional requirements: the ∆ must have such minimum contacts with the forum state so as to not offend the traditional notions of fair play and substantial justice. **Merely placing a product in the stream of commerce with awareness that it may reach a particular state is not sufficient to exercise jurisdiction.**

Answer 77

A claim arises out of the same transaction or occurrence if they arise out of a **common nucleus of operative fact.**

Answer 78

Generally, federal courts do not hear domestic relations cases — State law and courts control matters of divorce, child custody, and support. However, federal courts may hear matters of state contract, tort, or other issues DERIVING FROM domestic relations issues.

Answer 79

Permissive joinder allows multiple plaintiffs to join together in a single action and allows multiple defendants to be sued in a single action. Multiple persons may be joined together in one action if the claims **arise out of the same T/O** and any **question of law or fact is common to all plaintiffs.**

Answer 80

If an objection will be raised by motion, rather than in a responsive pleading, the motion must be made before a responsive pleading is made. These are called pre-answer motions. Pre-answer motions include: - A motion to dismiss. - A motion for a more definite statement. - A motion to strike.

Answer 81

An impleader claim for **indemnity** shift's **ALL** of the defendant's liable onto a new party. An impleader claim for **contribution** against a joint tortfeasor shifts **SOME or PART** of the defendant's liability onto a new party.

Answer 82

Interpleader is used where a plaintiff has some holding that would expose the plaintiff to multiple liability from adverse claims. Only applicable where multiple parties are seeking the SAME THING; usually the same piece of property, or most commonly the proceeds of an insurance policy.

Answer 83

Class actions based on diversity are governed by CAFA. CAFA expands subject-matter jurisdiction to classes where there are **more than 100 people**, there is **minimal diversity**, meaning that only one member of the class is diverse from at least one defendant, and the amount in controversy **exceeds $5,000,000.**ƒ

Answer 84

Any documents prepared **in anticipation of litigation** by the attorney or its representative. Privileged; generally not discoverable. May be discoverable upon a showing that the opposing party has both a **substantial need** for the material to prepare its case and they **cannot, without undue hardship, obtain the equivalent elsewhere**.

Answer 85

A discovery tool that is only used when a **party's condition is in controversy**. The only discovery tool that requires an advance court approval. The court will approve a request for a physical or mental exam when the physical condition is at issue and there is a showing of **"good cause"**.

Answer 86

A license is generally revocable, while a profit is not. A license is the ability to use, while a profit is the ability to take.

Answer 87

Quasi in rem jurisdiction applies where a court cannot exercise in personam jurisdiction due to there not being a sufficient long-arm statute in place, but where there is property in the forum state that is attached as part of the relief requested. There must still be minimum contacts and a finding that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

Answer 88

Article III of the Constitution provides that the _U.S. Supreme Court_ has original jurisdiction over cases involving foreign ambassadors, cases involving other public ministers and consuls of foreign countries, and cases in which a state is a party. The Supreme Court has held that Congress cannot give the Court original jurisdiction over any other type of case.