Federal Civil Procedure Flashcards
1
Q
What are the three issues to address when determining whether the case is in the right court?
A
- Personal jurisdiction 2. Subject matter 3. Venue
2
Q
What is the issue in addressing whether there is personal jurisdiction?
A
Can plaintiff sue defendant in this state?
3
Q
What two steps must be met for PJ?
A
- Satisfy state’s long arm statute (usually stated as the limit of the U.S. constitution) 2. Satisfy Due Process
4
Q
What are the three traditional methods of meeting due process for PJ?
A
- D is domiciled in the forum 2. D consents to PJ 3. D is present in the forum when served with process.
5
Q
What are the three factors in the due process analysis when the three traditional methods for PJ can’t be met and there’s no general PJ?
A
Specific PJ requires: 1. Contact: purposeful availment and forseeability 2. Relatedness of claim to the contact: even if few contacts, satisfied where directly related to claim 3. Fairness: must not offend traditional notions of fair play and substantial justice
6
Q
What are the two factors to determine whether D’s contact with the forum is sufficient to meet the due process requirements for specific PJ?
A
- Purposeful availment (voluntary act, such as used roads, tried to make money there, caused some effect there) and; 2. Foreseeable that would get sued there.
7
Q
What question is asked to determine whether D’s contact with the forum is sufficiently related to P’s claim to meet the due process requirements for specific PJ?
A
P’s claim arises from D’s conduct in the forum.
8
Q
Where is a corporation domiciled for purpose of establishing general PJ?
A
- place where incorporate; or 2. principal place of business.
9
Q
What is the RI long arm statute?
A
the limit of the U.S. constitution and federal law
10
Q
What is general PJ and what are the two main consequences of having general PJ?
A
D is domiciled in the jurisdiction. If have general PJ 1) don’t need to go through contacts and fairness analysis required for specific PJ and 2) there’s PJ against D for claims arising anywhere in the world.
11
Q
What three questions are asked to determine whether jurisdiction over D would be sufficiently fair to meet the due process requirements for specific PJ?
A
- Burden on D and witnesses is so great as to place D at a severe disadvantage in the litigation (difficult burden to meet; due process doesn’t guarantee the most convenient forum for all) 2. State’s interest in providing a forum for its citizens. 3. Plaintiff’s interest (e.g., injured and wants to be at home).
12
Q
What is SMJ all about?
A
Court’s power over the case (not over the parties, that’s PJ)
13
Q
What’s the SMJ of a state court? federal court?
A
State court: General jurisdiction. Can hear any case under state or federal law, except for patent, bankruptcy, federal securities, and antitrust. Federal court: Limited jurisdiction: can hear only cases where there’s either 1) diversity of citizenship or alienage or 2) federal question.
14
Q
What are the two diversity of citizenship SMJ requirements?
A
- Case is either (a) between citizens of different states (diversity) or (b) between a citizen of a state and a citizen of a foreign country (alienage) and 2. Amount in controversy exceeds $75k.
15
Q
What is the complete diversity rule?
A
There’s no diversity of citizenship (and no SMJ) if ANY P is a citizen of the same state as ANY D.
16
Q
P from Spain sues D from Canada in federal court. Is there SMJ?
A
No. No alienage because not between alien and a citizen of U.S. No diversity because no litigant is a citizen of the U.S.
17
Q
How is a green card holder treated for purposes of being either an alien or citizen to meet the diversity or alienage requirements for SMJ?
A
Green card holders are considered aliens. However, if they are domiciled in the same state as a U.S. citizen who is an opposing party, there’s no alienage SMJ. (There’s also no diversity SMJ because controversy isn’t between two U.S. citizens. E.g., A, citizen of NY, sues B, a green card holder (permanent resident alien) domiciled in NY. No SMJ.
18
Q
What’s the status of a U.S. citizen domiciled abroad? P (a U.S. citizen domiciled in Japan) sues D (CA). Is there SMJ?
A
Not treated as a citizen of any state and also not treated as an alien. There’s no alienage because P is a U.S. national. There’s no diversity because P isn’t treated a citizen of the U.S. because of P’s domicile.
19
Q
How does an individual establish a new domicile?
A
- Physical presence in a state different than the current state of domicile (not sufficient to merely leave current domicile state); and 2. Intent to remain there permanently (don’t presume intent; look at factors like taking job, buying house, etc)
20
Q
At what stage of litigation is diversity or alienage determined for SMJ?
A
Filing of compliant. After-filing change to parties’ diversity or alienage is irrelevant.
21
Q
What is the citizenship of a corporation for purposes of SMJ?
A
Corporation is domiciled in all states in which: 1) incorporated; AND 2) has its principal place of business (PPB)
22
Q
Where is a corporation’s PPB for purposes of determining its alienage or citizenship?
A
Where its managers direct and control corporate activities (“nerve center” or headquarters).
23
Q
What’s the citizenship of a limited or general partnership or LLC?
A
It’s a citizen in the states of ALL of its members or partners.
24
Q
P (WI) sues LLC which is formed in WI and has its PPB in MI. LLC’s members are 1) an individual (NY) and 2) a corporation incorporated in TX with its PPB in CA? Is there SMJ?
A
Yes. LLC is citizen in NY, TX, and CA, but not WI or MI because it’s not a corporation.
25
What is the citizenship of decedents, minors, or incompetents?
While such persons must sue or be sued through a representative, the representative's citizenship is irrelevant. Only the citizenship of the person being being represented is relevant.
26
P sues for exactly $75k. Is there SMJ? What P if sues for $74k together with legal costs and interest running from date of judgment that will clearly exceed $1k?
No. No. Must be in pleading; costs and interest don't count towards \>$75k requirement.
27
P sues D for $50k and $60 of punitive damages. Relevant authority holds that punitive damages cannot be recovered. Is there SMJ?
No. P's good faith pleading is sufficient (even if in final judgement damages aren't \>$75), unless it's clear to a legal certainty that cannot recover \>$75k.
28
What are the aggregation rules for meeting the \>$75k requirement for SMJ?
Can add two or more claims to meet the \>$75k, even if factually unrelated, provided they are asserted by a single P against a single D (joint tortfeasors are considered a single D).
29
How is the \>$75k met for equitable claims?
Either: 1) Cost to P if relief isn't granted 2) Cost to D if relief is granted
30
Even if the \>$75k requirement is met and there's diversity or alienage, what cases will the federal courts not hear?
Child custody, divorce, alimony, and probate of an estate.
31
What's the main question to ask in determining whether there's federal question (FQ) SMJ?
Is the P enforcing a federal right? Ignore D's defenses, amount in controversy, diversity or alienage, or anything else.
32
Do additional claims by P, counterclaims, and crossclaims need to have diversity (or alienage) or FQ SMJ if the original claim has SMJ?
Yes, unless the federal court has supplemental jurisdiction (SJ) over the claim. P (NC) sues D (SC) for $100k damages from car crash. D files a state law counterclaim against P in the case for $125k. No SJ needed. If D's claim were a $50k federal claim, again no SJ needed. If the $50k claim were a state law claim, SJ would be needed.
33
What's the two step test for SJ?
There's SJ for supplemental claims if: 1) the claim arises from the same transaction or occurrence as the underlying claim (T/O); and 2) the claim is not (a) asserted by a P in (b) supplementing an original diversity case (c) to overcome a diversity of citizenship problem.
34
P1 (VA) and P2 (VA) sue D (PA) on state law claims. P1 sues for $100k and P2 sues for $50k. Does a federal court have SMJ to hear both claims?
P1 gets in on diversity. P2's claim isn't \>$75k so no diversity. But P2's claim gets in on SJ because same T/O and P2's claim isn't against a co-citizen.
35
Even if requirements for SJ met, when will a federal court decline to accept SJ?
1. Underlying claim dismissed early in case; or 2. State law claim is complex 3. State law issues would predominate
36
What's removal?
Transfers case from a state trial court to a federal trial court.
37
When must removal occur?
Within 30 days of service of the first paper showing that the case is removable (usually service of process).
38
Who must join in a removal motion?
All Ds that are served process.
39
P sues D1 and D2 on June 1. D1 served process on June 1 and doesn't remove within 30 days. D2 is then served with process on August 1. Can the case be removed?
Yes, because 30 days starts again with service on a new D.
40
P sues D in state court. D files counterclaim against P. Can P remove?
No. Ps can never remove.
41
What kinds of cases can be removed?
Any case where federal court has SMJ unless SMJ is based upon diversity AND 1) if any D is a citizen of the current forum; or 2) more than 1 year after case was filed in state court.
42
Where does a case get removed to?
Only to the federal district that embraces the state court where the case was filed.
43
What process must D do to get case removed and when?
1. File a "notice of removal" in federal court, stating that the court has diversity or FQ SMJ and attaching all documents that were served on her in state action 2. Serve copy of the notice of removal on adverse parties. 3. File a copy of the notice of removal in state court.
44
If P thinks removal was improper, what does P do and when?
Move to remand to state court: 1) if removal was procedurally improper, within 30 days 2) if improper because federal court lacks SMJ, anytime
45
In federal court what substantive law applies in a diversity case?
1. If there's a federal law on point that directly conflicts with state law (preemption), apply the federal law based upon the Supremacy Clause. 2. If no federal law on point, apply the following "substantive" state laws: (a) elements of claim or defense (b) SOL and tolling of SOL and (c) conflict or choice of law rules. 3. If no federal law on point and issue isn't one of three listed above, apply state law if either (a) choice of law would be outcome determinative or (b) applying state law would cause flock to federal court; if neither (a) or (b), then apply law of system with greater interest.
46
Is there any federal common law?
No. So, State common law of contracts, torts, and property governs in federal court on diversity SMJ.
47
What is the question that venue is trying to answer and what is the basic rule?
Is this particular federal court a proper court to hear the case? P may lay venue in any district where either: 1) a substantial part of the claim arose; or 2) all Ds reside (unless all Ds reside in the same state, in which case any of the districts in which Ds reside).
48
Is venue an issue if there's been removal?
No, because removal can only be made to the federal district court in which the state court lies.
49
Where does a D "reside" for purposes of venue?
For individual: domicile For corporation or non-corporate entity: where its subject to PJ (general or specific)
50
To where can venue be transferred?
At the request of any party, federal district court may transfer a case only to another federal district court 1) that would have been a proper venue and 2) that has PJ over D, independent of waiver.
51
When will a court exercise its discretionary right to transfer from a proper venue?
Weighing public and private interests, the convenience of parties and witnesses and interests of justice center the forum elsewhere.
52
What may a court do if venue is improper?
Transfer or dismiss
53
When does a court determine forum non conveniens?
If there's another court that is the center of gravity but it's another judicial system, the court may either dismiss or stay the case if the more convenient court is inadequate.
54
What is service of process and who can make it?
Summons and complaint (notice of suit) served by any nonparty who is at least 18 years old.
55
What are the four ways in which process can be served?
1) Personal service: papers given to D anywhere 2) Substituted service: papers left at D's usual abode with someone at least 18 who lives there. 3) Service on agent of D 4) Any other method permitted by state law of the state in which the federal court sits or where service is made (e.g., mail).
56
How can service be waived?
1) P mails D with complaint and 2 waiver forms with prepaid means of returning them. 2) D executes and returns within 30 days. Not a waiver of D's defenses (including lack of PJ).
57
What are the major pleadings?
1. Complaint 2. Response by motion or answer (including counterclaims) 3. Crossclaims 4. Additional claims 5. Amended pleadings 6. Supplemental pleadings
58
What is required in the complaint?
Unless claim of fraud, mistake, or special damages: 1. statement of grounds of subject matter jurisdiction 2. short and plain statement of claim showing entitled to relief that "pleads facts supporting a plausible claim" 3. demand for relief sought
59
What's required by Rule 12 in D's response and by when?
Respond within 21 days of SOP (or 60 days if waived) with either: 1. Motion (not a pleading unless part of answer) (i) for more definite statement or to strike; or (ii) to dismiss for: (a) lack of SMJ or PJ (b) improper venue or SoP (c) failure to state claim or join indispensable party 2. Answer (a pleading): (i) Admit, deny, or state lack sufficient info to admit or deny; or (ii) raise affirmative defenses (e.g., SoL, SoF, self-defense, res judicata).
60
What are the three waivable defenses and what does "waivable" mean?
1. lack of PJ 2. improper venue 3. improper service of process must all be put in first Rule 12 response (motion or answer) or else they're waived.
61
P sues D. D files a motion to dismiss for improper service of process, which the court denies. D then files D's answer where D asserts lack of PJ and improper venue. Presuming that, in fact, there's no PJ, will the court allow the defenses?
No. D waived both defenses because they weren't in the first Rule 12 response.
62
When can a motion to dismiss for lack of SMJ be made?
Anytime, even after conclusion of trial.
63
If a case was removed from state court and it later turns out that the federal court didn't have SMJ, what will the court do?
It won't dismiss. Rather, it will remand to state court.
64
What two things must a Rule 12 answer do?
1. Respond to allegations of the compliant by either a) admitting b) denying or c) stating lack of sufficient information to admit or deny; and 2. Raise affirmative defenses (SOL, statute of frauds, self defense, etc). These defenses don't go in Rule 12(b), as a motion to dismiss. Rather they go in the answer.
65
P sues D for breach of contract. D answers, only denying material allegations. At trial, D brings evidence that P procured contract by fraud. What should P do?
Object that D has waived the affirmative defense by not raising in under Rule 12 in the answer.
66
What is a counterclaim, when is it raised, and what are the two types of counterclaims?
A claim against an opposing party (even if became opposing only because of crossclaim) that's raised in D's answer. 1. Compulsory: arises from same T/O as P's claim and must be filed in the pending case or it's waived. 2. Permissive: doesn't arises from same T/O as P's claim and may be filed in the pending case or in a separate case.
67
Does a counterclaim or crossclaim need SMJ?
Yes, both need SMJ or SJ.
68
What's a crossclaim, when is it properly raised, and is it compulsory?
A claim against a co-party that must arise from the same T/O as the underlying action. It's not compulsory.
69
What are the three times that amended pleadings are allowed?
1. Right to amend of P and D P has a right to amend once within 21 days after D serves first Rule 12 response. D has right to amend once within 21 days of serving answer. 2. Discretion of court where "justice requires" (look at delay, prejudice, and need for amendment). 3. Variance: ensure pleadings match evidence at trial.
70
Can pleadings be amended after the statute of limitations has run to add an additional claim?
Yes, if the original claim and the new claim concern the same conduct, transaction, or occurrence, there is "relation back" to treat amended claim as if it were timely filed.
71
What's are the two differences between an amended pleading and a supplemental pleading?
A supplemental pleading sets forth things that happen after the pleading was filed. Amended pleadings set forth things that happened before the pleading was filed but weren't asserted until later. Leave to file supplemental pleadings are always within the court's discretion; amended pleadings must be allowed within the 21 days.
72
What's Rule 11?
Lawyer or party's certification that to the best of knowledge and belief, after reasonable inquiry, that everything presented to the court: 1) is not for an improper purpose; 2) legal contentions are warranted by law (or nonfrivolous argument for change to law); and 3) factual contentions and denials of factual contentions have evidentiary support.
73
What are the three mandatory disclosures in discovery?
1. Initial disclosures 2. Expert witnesses 3. Pretrial mandatory disclosure
74
What's included in the initial disclosure and when must it be made?
Within 14 days of 26(f) conference, each party must disclose: 1. Identities of persons with discoverable information that supports disclosing party's claims or defenses, along with the subject of that info (together with name and phone, if available). 2. Documents and copies or descriptions of both tangible and intangible things within custody or control of disclosing party that support disclosing party's claims or defenses 3. Calc of monetary relief and documents supporting it. 4. Insurance coverage that could cover all or part of judgement against D
75
What's the consequence of failure to make any initial or expert witness disclosures?
Witnesses can be brought and info can't be used in case.
76
What's included in the EW disclosure?
1. Written report of expert developing an opinion (a) for use in this case who (b) may be used at trial (but not a "consulting expert") that includes 2. EW's opinion, basis for opinion, qualifications, and payment EW earning, 3. EW's name and telephone number
77
When can a party first request discovery?
After Rule 26(f) conference (meet and confer to discuss arguments and settlement).
78
Which of the 5 discovery tools can be used to get information from nonparties?
With subpoena: 1. Depositions (travel limit 100 miles from home or work) 2. Requests to produce Nonparties cannot be served interrogatories, be subject to medical exams, or served with requests for admission.
79
is deponent required to review all relevant files and notes before being deposed?
No; testifies from present recollection.
80
Can the agent of a company that has been sued for negligence based on the actions of the agent be required to take a medical exam? what about a invalid who isn't a party but is in a party's control?
No, because the agent isn't a party. Yes.
81
If unsure about which employees of a company have information, how can the deposing party ensure that the correct employee comes to the deposition?
Serve Notice of Deposition to the opposing party and describe matters that wish to investigate. It's up to opposing party, the company, to send the correct person.
82
How many depositions can be taken?
no more than 10 and never the same person twice
83
How can depositions be used at trial?
Subject to rules of evidence: 1) impeach the deponent, 2) any purpose if deponent is an adverse party, 3) any purpose if deponent is unavailable for trial, unless absence procured by party seeking to introduce the evidence.
84
How long does party have to respond with answers or objections to interrogatories?
30 days from service
85
What are the maximum number of interrogatories?
25, including subparts
86
Can you use your own answers to interrogatories at trial?
No.
87
If answer to interrogatories can be found in biz records and it would be burdensome to find the answers, can the responding party say it doesn't know the answer?
No, if information needed to answer is in control of business, it must find out, unless doing so would be burdensome; if burdensome, responding party can allow requesting party to have access to records.
88
What is unique about medical exams over other discovery tools?
1. motion for good cause 2. health is in issue 3. court order needed
89
What certifications does every discovery request and response make?
1. It is made under oath 2. It is warranted 3. it is not interposed for improper purpose 4. it is not unduly burdensome
90
If a response to a discovery request later becomes incomplete or incorrect, must you do anything?
Yes, you must supplement.
91
What is the scope of discovery?
Anything relevant to a claim or defense, including anything reasonably calculated to lead to the discovery of admissible evidence (broader than admissibility).
92
In a suit for compensatory damages, is a discovery request for D's net worth within the scope of discovery? What about a suit for punitive damages?
No, because D's net worth isn't necessary to compensate P. Yes, to punish D, need to know how much damages would be considered a punishment, which in part depends on D's net worth.
93
Even if a discovery request is within the scope of discovery generally, what three limits are there upon a party's request for discovery?
1. Proportionality: burden of responding outweighs the importance of the issue or the request is cumulative. 2. Privilege: e.g., attorney-client privilege 3. Work Product: material prepared in anticipation of litigation.
94
What is the difference between absolute work product and qualified work product?
Absolute work product cannot be discovered because it consists of mental impressions, opinions, conclusions, or legal theories. Qualified work product can be discovered if there's (1) a substantial need and (2) the information isn't otherwise available.
95
D pays large sum to private investigator to locate eyewitnesses to accident. P serves interrogatory on D asking for the names of all persons with information relevant to the case. Can D respond that the information is subject to work product and not discoverable?
No. Identity of people with discoverable information is discoverable.
96
If a party prepares for another party statements in anticipation of litigation, does the party who prepares the statements have a right to request a copy of the statements?
Yes, a party has a right to request its own statements.
97
If a party receives privileged or protected material, is the privilege automatically waived?
No, the other party must return, sequester, or destroy the material.
98
What is a protective order?
A motion to deny, limit, or permit discovery on certain terms for discovery requests believed to be an annoyance, embarrassment, risky, or undue expense or burden. Moving party must certify that she tried in good faith resolve the dispute without court involvement ("meet and confer")
99
What is a motion for an order to compel?
Party responding to discovery answers some questions but objects to others and moving party requests court to compel answers. Court will decide whether objections were legitimate.
100
What should a party do if the opposing party partially answers a discovery request? Doesn't respond at all?
1. File motion to compel plus costs of bringing motion 2. If violates order, Rambo sanctions, plus costs and possibly contempt of court, other than for refusal to submit to medical exam. Rambo sanctions immediately, no need for order compelling response.
101
What are the Rambo sanctions?
Establish facts as true, strike pleadings of disobedient party on issues related to the discovery, disallow evidence from disobedient party on issues related to the discovery, dismiss plaintiff's case if bad faith shown, enter default judgment if bad faith shown.
102
If a party fails to produce electronically stored information because it was lost in the routine operation of an electronic information system, are there sanctions?
No, unless it's an exceptional case.
103
When can a case as initially filed (i.e., before impleader or joinder) include co-plaintiffs and co-defendants?
1. The claims arising from the same transaction or occurrence; and 2. Raise at least one common question.
104
What is joinder and when is joinder necessary?
Joinder, where the court forces a nonparty to join the case, occurs, is required where 1. court cannot accord complete relief amongst the parties (possible multiple suits) without the party; or 2. the party's interests may be harmed if not joined; or 3. D risks multiple obligations.
105
If joinder is necessary, what needs to be shown before the party may be joined to the case?
Joinder must be feasible: 1. There is PJ over the necessary party; and 2. Joining the necessary party will not prevent existing diversity jurisdiction.
106
If joinder is necessary but not feasible, what options does the court have and how does it make its decision?
Court must either: 1. Proceeding without the necessary party; or 2. Dismiss the entire case. Factors that court weighs: 1. Alternative forum available (state court) 2. Actual likelihood of harm to necessary party. 3. Ability to shape relief to avoid harm to necessary party.
107
What is impleader?
Impleader is where defendant brings someone new in to the case has a third party defendant in a claim for indemnity (the full claim) or contribution (pro rata portion of the claim) While counterclaim and cross claim (C...) involve existing parties, impleader, interpleader, and intervention (I...) involve non parties.
108
Must an impleader claim be asserted in the case in which the impleader is the defendant?
No. D can sue for indemnification in a separate action.
109
Plaintiff is badly hurt in a bar fight and sues patron. Patrons says he did not touch plaintiff; bouncer did. Can patron implead bouncer?
No because impleader is proper only if defendant has possible liability; here defendant denies liability.
110
How does a defendant implead a third party?
1. Defendant files a third party complaint naming the third party defendant; and 2. Serves process on the third party (must have personal jurisdiction).
111
How long does a defendant have to implead?
within 14 days of serving answer or court permission beyond that time
112
What is intervention? And what are the two types?
A nonparty with property SMJ brings itself into the case either as a plaintiff or a defendant. Intervention of right: party's interests may be harmed if not joined. Permissive intervention: party has claim or defense that shares with the main action a common question of law or fact.
113
What are the 4 initial class action requirements?
"numerous common types represented" 1. Numerosity: too many class numbers for practicable joinder 2. Commonality: issue in common to all class members 3. Typicality: the representatives' claims are typical of those of the class 4. Representative adequate: class representative will fairly and adequately represent class.
114
Following meeting the initial class action requirements, a class action lawsuit must fit into one of these three types of classes.
Type 1: Risk of inconsistent results Type 2: injunction or declaratory judgment appropriate (but never damages) because defendant treated class alike (e.g., Employment discrimination). Type 3: (1) common questions predominate over individual questions; and (2) class action is the superior method two handle the dispute (e.g., Mass tort)
115
What is the notice requirement in a class action and to which type(s) does it apply?
Following court certification of the class and appointment of class counsel, the court must mail notice to all reasonably identifiable members telling them 1) that they can opt out, 2) that they'll be bound if they don't (unless judge certified on basis of giving a second opt-out chance); 3) and they can enter a separate appearance through counsel. Applies only to Type 3.
116
Is there a right to opt out of a Type 1 or 2 class action?
No,
117
How is subject matter jurisdiction satisfied in a class action?
If class action raises Federal question or the class representative(s) (and only the class representative) are diverse with respect to the defendant and the representatives claim exceeds $75,000.
118
When can a TRO be granted ex parte?
1. Applicant files a paper under oath clearly showing that if the TRO is not issued he will suffer immediate and irreparable harm; and 2. Applicant's lawyer certifies in writing his efforts to give oral or written notice to defendant or defendant's lawyer or why such notice should not be required.
119
What must the court's preliminary injunction or TRO state?
1. Why it was issued; 2. Why the threatened injury to plaintiff was irreparable; and 3. Reasonable detail what D must do or refrain from doing;
120
What can defendant do if the court issues a TRO?
Move to dissolve or modify the TRO.
121
What does a preliminary injunction accomplish? And how is it different from TRO?
A preliminary injunction maintains the status quo until a trial while a TRO is sought before getting a preliminary injunction. A preliminary injunction can never be granted ex parte but a TRO may be granted ex parte.
122
What must an applicant for a preliminary injunction show?
1. Irreparable harm if not issued 2. Likely to win on merits 3. Threatened harm to applicant outweighs harm to other party 4. Injunction is in the public interest.
123
When does the plaintiff have a right to take a voluntary dismissal by filing a "notice of dismissal"?
Before defendant serves an answer or motion for summary judgment.
124
What can plaintiff do if the defendant does not respond to the complaint in time?
Following the 21 days after being served with process (60 days from mailing of waiver), plaintiff moves to default, demonstrating to the clerk that defendant failed to respond in time. If clerk enters a default, defendant can no longer respond to the complaint. However, plaintiff is not entitled to recover unless there's a default judgment.
125
When can a clerk enter default judgment?
1. Defendant made no response at all; 2. The claim is for a sum certain in money; 3. Claimant gives an affidavit of the sum owed; and 4. Defendant is not a minor or incompetent If any of these is not true, plaintiff goes to the court for a default judgment.
126
What may a defendant do to have the court set aside a default or default judgment?
Motion to set aside the default or default judgment by showing good cause: excusable neglect for failing to respond and a viable defense.
127
What is a 12(b)(6) motion? What standard does the court use in determining whether to grant the motion?
The motion to dismiss for plaintiffs failure to state a claim. Court considers only the face of the complaint (not evidence) and asks whether, if all of plaintiff's allegations of fact were plausibly true, would plaintiff win? If not, will dismiss
128
What is a motion for summary judgment?
No later than 30 days following the close of discovery, moving party asks court to find that: 1) there is no genuine dispute of a material fact; and 2) plaintiff is entitled to judgment as a matter of law; And therefore the court should exercise its discretion to enter summary judgment on one or all of the claims.
129
Does the court consider the evidence in evaluating whether to grant a motion for summary judgment?
Yes, the court views the evidence (which must be firsthand knowledge) in the light most favorable to the non moving party. Pleadings are not evidence.
130
What is the Rule 26(f) conference?
Parties meet and confer 21 days before the scheduling conference to discuss claims, defenses, and settlement, ultimately presenting to the court a detailed discovery plan.
131
What is included in the pretrial conference order?
The pretrial conference order supersedes the pleadings and provides the issues to be tried, evidence to be presented at trial, and witnesses. It can only be modified by the court to prevent manifest injustice.
132
What does the seventh amendment provide?
The right to jury trial in civil actions at law but not suits in equity. It does not apply in state court.
133
When is the demand for jury trial due and how is it presented?
Demand must be in writing no later than 14 days after service of the last pleading raising a triable jury issue. Otherwise, the right to a jury trial is waived.
134
How many for cause strikes of potential jury members are allowed? How many peremptory strikes?
No limit to strikes for cause. Three peremptory challenges per side.
135
What is the standard for appealing a judge's jury instructions?
Plain error that affected substantial rights.
136
What is judgment as a matter of law and when is a motion for it made?
motion for the judge in jury trial, following the other side's presentation of evidence, that based upon evidence, reasonable people could not disagree that evidence, when viewed in the light most favorable to the non moving party, requires judgment for moving party. (a/k/a "directed verdict")
137
What is a renewed motion for judgment as a matter of law?
Same as judgment as a matter of law but this motion is made following the presentation of evidence from both sides. Cannot be made unless a judgment as a matter of law motion was made that the proper time during the trial.
138
What are remittur and additur?
Judge finds that damage figure returned by jury shocks the conscience but does not want to order a new trial. Remittur: Judge may present plaintiff with the choice of either taking a lesser amount or ordering a new trial. Allowed in both state and Federal Court. Additur: judge gives defendant choice: pay a greater amount in damages or go through new trial. 7th amendment prevents judge from additur.
139
How does one determine whether a judgment of the trial court is the final judgment for purposes of determining whether the judgment is appealable?
Trial court has nothing left to do on the merits.
140
Does the court of appeals have discretion to review a trial judge's order granting or denying certification of a class action and if so how long?
Yes, 14 days of order
141
What is the standard of review by an Appellate Court for questions of law?
De novo: no deference to trial judge
142
What is the standard of review by an Appellate Court for questions of fact in a non jury trial?
Trial judge's factual determinations will be affirmed unless findings are clearly erroneous
143
What is the standard of review by an Appellate Court for questions of fact in a jury trial?
Jury's factual determinations will be affirmed unless reasonable people couldn't have made that finding.
144
On discretionary matters such as whether to grant a motion what is the standard of review by an Appellate Court?
Abuse of discretion
145
What is claim preclusion?
Also called res judicata, a claim will not be entertained by a court if a claim by the same claimant against the same defendant was already decided on the merits.
146
What is considered a "claim" for purposes of claim preclusion?
Majority view: a claim is any right to relief arising from a transaction or occurrence. Minority view: a claim for property damage is not precluded by a prior claim for personal injuries arising from the same transaction or occurrence and vice versa..
147
What is issue preclusion?
Assertion that prevents 1) someone who was a party 2) in a case decided finally on the merits from re-litigating that same issue if the issue 3) was essential to the judgment 4) and the issue was litigated and determined (a/k/a "collateral estoppel")
148
Who can assert issue preclusion under the traditional rule?
Traditional rule: only someone who was a party in the first case (mutual issue preclusion)
149
Who can assert issue preclusion under the modern rule?
Modern rule: 1) non mutual defensive issue preclusion: party asserting preclusion not a party in the first case and is defendant in second case. 2) non mutual offensive issue preclusion: party asserting preclusion not a party in the first case and is plaintiff in second case.
150
When will courts allow non mutual offensive issue preclusion?
All issue preclusion rules are met and allowing preclusion would not be unfair, judged by: 1) defendant (who was party in the previous suit) (a) had a full and fair opportunity to litigate the issue in the prior suit and (b) could foresee multiple suits; 2) plaintiff could not have joined easily in prior suit; and 3) there are no inconsistent in findings on the issue.
151
In a federal question case, when is the action deemed commenced for statute of limitations purposes? In diversity cases?
In a federal question case, the action is deemed commenced for statute of limitations purposes when the complaint is filed with the court. In diversity cases, the state rule for determining when the action is commenced applies. Depending on the state rule, an action may be commenced for statute of limitations purposes when process is served on the opposing party.
152
If a person travels to another jurisdiction solely to be a witness in a court action, can he be served with process?
If a witness travels to another jurisdiction solely to be a witness in a court action, the witness is immune from service of process. The immunity rule applies to witnesses, parties, and attorneys alike.
153
Does the Seventh Amendment guarantee a trial by jury in all cases?
No, only for all suits at common law (not in equity), whether by P or by D in counterclaim, where the amount in controversy exceeds $20.
154
What is a general verdict with special interrogatories?
A verdict in which the jury finds for the plaintiff or defendant, determines the damages or relief to be given, and answers specific questions of fact.
155
What is a special verdict?
Jury receives a series of questions regarding each ultimate fact, then the court makes legal conclusions based on those facts.
156
When may a new trial be granted?
1. when the verdict is excessive, inadequate, or against the weight of the evidence (distinguish JMOL); or 2. an error during the trial (usually going to the admissibility of evidence or the propriety of the instructions); or 3. because of jury misconduct
157
What is an interpleader suit?
To avoid double liability, a non-party stakeholder demands adverse claimants determine which has the valid claim to the stake.
158
How many domiciles can an individual have? A corporation?
One. Many (though usually two).
159
What are the doctrines of merger and bar?
A plaintiff's successful cause of action merges into the judgment precluding all related claims under res judicata. A defendant's successful defense bars the plaintiff from relitigating the cause of action under res judicata.
160
May improper venue be waived?
Yes, even if it's not a proper venue, a party can waive proper venue intentionally or unintentionally.
161
For which types of claims by plaintiffs is SJ not allowed?
1. impleaded parties 2. joined parties (compulsory or permissive) 3. intervening parties
162
What is a motion for judgment on the pleadings and how is it different than a motion for summary judgment?
On the face of the pleadings, the moving party is entitled to judgment. If accompanied by outside matters, it's treated as a motion for summary judgment.
163
Which orders are generally reviewable?
generally only final orders can be appealed
164
What is considered a final order? What's the opposite of a final order?
One that disposes of the whole case (all claims and parties) on the merits. An interlocutory order.
165
Is a court limited to the demand for relief in the pleadings?
No, except in default cases, the court may give any relief that is appropriate based on the evidence.
166
When multiple claims or parties are involved in an action, may a court enter a final order or judgment as to fewer than all of the claims or parties?
Only (i) on an express determination that there's no just reason for delay and (ii) on an express direction for the entry of judgment.
167
Which orders, even though not final, are appealable?
1. Interlocutory orders as of right: injunctions, receiver appointment
2. Interlocutory Appeals Act (orders as of discretion): if (i) judge ***certifies*** that order involves a ***controlling question of law***, subject to ***substantial difference of opinion***, and immediate appeal would ***materially advance the litigation*** and (ii) appellate court agrees.
3. Class action certification or denial in discretion of trial court within 14 days of order entry.
4. Collateral order: claim or issue is separable from main suit and too important to require deferring review, it can be classified as a final order in that separate claim or issue.
