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Bar Study-MBE > Federal Civil Procedure > Flashcards

Federal Civil Procedure Flashcards

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1
Q

Personal Jurisdiction (Jx):

Traditional

A

1) D domiciled in forum;
2) Personally served while present in forum;
3) Express or implied consent to jx.

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2
Q

Personal Jurisdiction (Jx):

Long Arm Statute

A

Assume statute reaches constitutional limit.

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3
Q

Personal Jurisdiction (Jx):

Constitutional Analysis

A

Does D have such minimum contacts with the forum so that exercise of jx doesn’t offend traditional notions of fair play and substantial justice?

My Parents Frequently Forgot to Read Children’s Stories:

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4
Q

Personal Jurisdiction (Jx):

Minimum Contacts

A

Purposeful availment + Foreseeability.

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5
Q

Personal Jurisdiction (Jx):

Fairness

A

Relatedness + Convenience + State’s Interest.

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6
Q

Personal Jurisdiction (Jx):

Relatedness (specific vs. general)

A

Specific = D’s specific contact with forum.

General = D had continuous and systematic ties with forum.

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7
Q

Subject Matter Jurisdiction (Jx):

Diversity

A

Complete Diversity + Amt in Controversy > $75K.

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8
Q

Subject Matter Jurisdiction (Jx):

Aggregation

A

OK to aggregate claims of one P against one D, but not two claims by two or more Ps against two or more Ds.

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9
Q

Subject Matter Jurisdiction (Jx):

Federal Question

A

“Arises under” Federal law.

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10
Q

Subject Matter Jurisdiction (Jx):

Supplemental Jx

A

“Common nucleus of operative fact”

BUT, P cannot use supp jx in diversity case to overcome lack of diversity.

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11
Q

Subject Matter Jurisdiction (Jx):

Refusal

A

Occurs when:

1) Federal question is dismissed early on;
2) State claim is complex; or
3) State law issue predominates.

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12
Q

Subject Matter Jurisdiction (Jx):

Removal

A

D can remove if case could be heard in Fed Ct under subject matter jx.

All Ds must agree.

No removal by P if more than a year passed since case was filed, or in a diversity case where any D is a citizen of the forum.

Once D files permissive counterclaim in state ct, he can’t remove.

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13
Q

Venue:

Local Actions

A

Anything re: land.

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14
Q

Venue:

Transitory

A

1) District in which all Ds reside;
2) If same state but diff districts then any district where one resides; OR
3) District where substantial part of claim arose.

Corporations reside anywhere it does business.

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15
Q

Venue:

Transfer of Venue

A

Courts consider convenience of parties and Ws and interest of justice (public factors re: applicable law, what community should bear burden of jury service).

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16
Q

Venue:

Forum Non Conveniens

A

Far more appropriate ct exists elsewhere (ct will dismiss without prejudice or stay case). Factors:

1) Location of Ws and evid;
2) Undue hardship for D;
3) Availability of adequate alternative forums;
4) Use of judicial resources;
5) Public policy.

Applicable when transfer is impossible because ct is in different judicial system, but never granted if P is resident of forum.

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17
Q

Service:

Proper Service for Summons and Complaint?

A

1) Personal Service;
2) Substituted Service;
3) Service on Agent; or
4) Waiver by Mail

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18
Q

Service:

What is Substituted Service?

A

Left with someone at D’s usual abode and to someone of suitable age and discretion who resides there.

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19
Q

Service:

What is Waiver by Mail?

A

Process mailed to D; formal service waived if returned in 30 days.

If no return, personal or substituted service required.

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20
Q

Service:

When can you be immune from service?

A

If in state as W or party.

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21
Q

Erie Doctrine

A

In diversity and supp jx cases, Fed Ct must apply state substantive law: (i) SoL; (ii) choice of law rules; (iii) elements of claim/defense; (iv) rules on tolling SoL.

But Ct uses Fed Procedural Law.

If substantive law, analyze (1) if outcome determinative (SL); (2) balance of interests; (3) avoid forum shopping (SL).

If Fed law conflicts, Fed law prevails.

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22
Q

Preliminary Injunction

A

Preserves status quo pending determination of merits of litigation.

Must provide notice to adverse party.

Must show: (1) imminent irreparable injury (non-monetary); (2) no adequate legal remedy; (3) substantial likelihood of success on the merits; (4) balance hardships; (5) not adverse to public interest.

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23
Q

Temporary Restraining Order

A

Preserves status quo of subj matter of litigation, and prevents irreparable harm until PI hearing.

Must provide notice unless (i) immediate and irreparable injury; (ii) effort to give notice; and (iii) provide security in case party wrongfully restrained/enjoined.

Must show same elements as PI.

Lasts 14 days unless extension granted.

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24
Q

Proper Pleadings:

What is Rule 11?

A

Attorney must sign all pleadings, etc. to certify that:

1) No improper purpose;
2) Legal contentions are warranted by law; and
3) Factual contentions and denials have evidentiary support.

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25
Q

Proper Pleadings:

Claim

A

Must plead FACTS supporting plausible claim enough to put D on notice and prep reasonable response (Iqbal/Twombly standard)

+ Basis of Subject Matter Jx

+ Demand for relief.

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26
Q

Proper Pleadings:

D’s Response

A

Within 21 after service.

Motion for more def statement/motion to strike. Motion or Answer - Waivable: lack of Pers Jx; improper venue; insufficient process or service. Non-waivable: failure to state claim, failure to join indispensable party; lack of SMJ.

Answer: must respond (admit, deny, lack info) + raise affirmative D (SoL, SoF, res judicata, self defense).

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27
Q

Proper Pleadings:

Right to Amend Pleadings

A

P once within 21 days after D serves first response. D once within 21 days after D serves answer.

If no right, seek leave of court. Court considers delay, prejudice, futility.

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28
Q

Proper Pleadings:

Supplemental Pleadings

A

Pertain to matters that occur after initial pleading.

Permission from court required.

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29
Q

Proper Pleadings:

D’s Counterclaim/Cross Claim against P

A

Compulsory if arises from same transaction or occurrence.

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30
Q

Proper Pleadings:

D’s Cross-Claim/Cross Complaint against Co-D

A

Permissive if arising from same transaction or occurrence or under supplemental jx.

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31
Q

Proper Pleadings:

Impleader by D/Cross Complainant Against 3rd Party

A

No diversity required between 3rd party D and 3rd party P.

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32
Q

Joinder of Parties:

Permissive

A

Must arise under same transaction or occurrence + raise 1 common question.

33
Q

Joinder of Parties:

Compulsory

A

1) Complete relief can’t be given to existing parties without them;
2) Disposition in party’s absence may impair their ability to protect their own interest; or
3) Their absence would expose existing parties to double or inconsistent obligations.

34
Q

Joinder of Parties:

How?

A

If feasible, PJ + SMJ (keep diversity).

Discretion of Court

If not feasible, Ct can proceed w/o, but considers:

(1) Alternative forum;
(2) Actual likelihood of prejudice;
(3) Can court shape relief to avoid prejudice;
(4) Whether P will be deprived of adequate remedy.

35
Q

Intervention:

Of Right

A

Applicant has an interest in the property or transaction and action without him may impair ability to protect his interest.

36
Q

Intervention:

Permissive

A

Applicant’s claim or defense and the main action have common question of fact; must have own jx.

37
Q

Joinder of Claims:

Impleader

A

Join 3rd party for indemnity/ contribution on underlying claim.

38
Q

Joinder of Claims:

Interpleader

A

Instituted by P to determine who has a valid claim to the stake.

Under Fed Rule, interpleader must follow regular Fed question or diversity rules.

Under statutory rules, interpleader has special, simpler standards – diversity between one claimant and $500 in issue, service nationwide and venue properly where any claimant resides.

39
Q

Federal Class Actions:

Requirements

A

Subject Matter Jurisdiction +

Nobody Can Touch Rocky’s Apple

1) Numerosity
2) Commonality
3) Typicality
4) Representative is Adequate

40
Q

Federal Class Actions:

Types of Class Actions

A

Prejudice – class treatment necessary to avoid harm to class member or party opposing class;

Injunction/Declaratory Judgment – class members treated alike by other party;

Damages (most likely mass tort) – (i) common questions predominate; (ii) class action is superior.

41
Q

Federal Class Actions:

Notification in Damages Class Action

A

Must notify all identifiable members that they can opt out, otherwise bound if they don’t.

Can enter separate appearance.

Class Rep pays.

42
Q

Federal Class Actions:

Subject Matter Jurisdiction

A

Fed Question or Diversity. If Div: only look to rep, no one else in class.

Traditionally → rep has complete diversity from Ds + Rep claim > 75K;

Class Action Fairness Act → SMJ if any class member diverse from any D, + more than 100 class mems, + aggregate claim > $5m

43
Q

Federal Class Actions:

Settlement

A

Requires ct appearance, notice to class, second chance to opt out for members of class.

44
Q

Discovery:

Required Disclosures

A

Duty to produce without request:

1) Initial Disclosures (i. ID people & docs likely to have discoverable info; ii. computation of damages; iii. insurance coverage.);
2) List of Experts;
3) Pretrial – detailed info about trial evidence at least 30 days before trial.

45
Q

Discovery:

Scope

A

Relevant – must be reasonably calculated to lead to admissible evidence.

Must be relevant to claim or defense.

Proportional – Must be proportional to needs of case Benefit must outweigh burden.

46
Q

Discovery:

Depositions

A

Non-parties subpoenaed.

Parties require notice.

47
Q

Discovery:

Interrogatories

A

Limited to 25 total

30 days to respond

48
Q

Discovery:

Request to Produce

A

30 days to respond

49
Q

Discovery:

Requests for Admission

A

30 days to respond

50
Q

Discovery:

Physical/Mental Exam

A

Court order required

51
Q

Discovery:

Duty to Supplement

A

If incomplete or incorrect, response must be supplemented.

52
Q

Discovery:

Sanctions

A

Partial or Total Violation.

Cost or Contempt + Extreme sanction for extreme violations: (i) monetary sanctions; (ii) strike pleadings; (iii) disallow evidence; (iv) dismiss; (v) default judgment.

53
Q

Discovery:

Privilege

A

Work Product/Attorney Work product = mental impression, conclusion, legal theories, opinions.

54
Q

Discovery:

E-Discovery

A

No need to produce electronically stored info (ESI) if party shows not reasonably accessible because undue burden, but court may order production + cost sharing/shifting.

Authentication: may use metadata to authenticate.

Safe harbor: no sanctions if ESI not preserved before knowing it would be discoverable in litigation.

55
Q

Discovery:

E-Discovery: Failure to Preserve ESI

A

Must take reasonable steps to preserve ESI if litigation anticipated.

If data lost + prejudice to other party + intent to deprive other party of data = Ct. may (i) presume or instruct jury it may/must presume lost data unfavorable to party; or (ii) dismiss action or enter default jgmt.

56
Q

Adjudication without Trial:

Voluntary Dismissal

A

P can voluntarily dismiss before D serves answer or motion without prejudice.

57
Q

Adjudication without Trial:

Involuntary Dismissal

A

Failure to prosecute, or abide court order.

58
Q

Adjudication without Trial:

Failure to State a Claim: Rule 12(b)6

A

Alleged facts must support legally recognized claim.

Assumes all allegations true, only looks at face of complaint.

59
Q

Adjudication without Trial:

Summary Judgment

A

Moving party: must show no genuine dispute of material fact.

Opposing party: show triable issue exists. Evidence looked at in light most favorable to non-moving party.

60
Q

Pretrial Conferences:

Purpose of Pretrial Conferences

A

Court may hold as many as needed to expedite case and facilitate settlement.

61
Q

Pretrial Conferences:

Final Pretrial Conference

A

Court may use to formulate trial plan. Held close to trial date, may be modified by court only to prevent manifest injustice.

62
Q

Pretrial Conferences:

Sanctions

A

May be sanctioned for:

1) Failure to attend conference or obey order;
2) Being substantially unprepared; or
3) Acting in bad faith.

63
Q

Verdicts & Judgments:

Recovery

A

If default, recovery limited to amount sought in complaint.

64
Q

Verdicts & Judgments:

Jury Trials

A

7th Am: Right to jury in civil cases as to legal relief. Court decides equitable relief.

65
Q

Verdicts & Judgments:

Voire Dire

A

Unlimited strikes for cause.

Each side gets 3 peremptory challenges.

6-12 jurors, no alternates.

66
Q

Verdicts & Judgments

Jury Verdicts

A

General - finds in favor of P or D completely, gives amount of damages.

Special – jury makes finding on all issues of material fact submitted to them, court applies law.

General w/ Special Interrogatories – jury answers factual questions to ensure general verdict valid.

67
Q

Verdicts & Judgments:

Motion for Judgment as Matter of Law (Directed Verdict)

A

D moves at close of P’s evidence and close of all evidence.

P only moves at close of all evidence.

Standard: Reasonable people couldn’t disagree.

68
Q

Verdicts & Judgments:

Renewed Motion for Judgment as Matter of Law

(Judgment Notwithstanding Verdict)

A

Must bring Motion for Judgment as Matter of Law FIRST.

Claim that jury verdict not reasonable.

Bring within 28 days of entry of judgment.

Same standard as Motion for Judgment as Matter of Law.

69
Q

Verdicts & Judgments:

Motion for New Trial

What are the grounds for new trial?

A

1) Prejudicial error making judgment unfair;
2) New evidence that couldn’t have been obtained with due diligence;
3) Prejudicial misconduct;
4) Judgment is against the weight of evidence;
5) Excessive/inadequate damages that shocks the conscience (remittitur: jury award too large, P chooses lesser figure or new trial.)

70
Q

Appealability & Review:

Where and when to file appeal?

A

File in the trial court within 30 days of entry of judgment.

71
Q

Appealability & Review:

Final Judgment Rule

A

Decision on final merits of claim. All Ds must agree.

NO Final Judgment: (i) Denial of motion for Summary Judgment; (ii) grant for new trial; (iii) grant to remand to state court; (iv) default judgment that does not dispose of all claims among all parties.

YES Final Judgment: (i) Denial of new trial; (ii) Grant or deny renewed motion for judgment as matter of law.

72
Q

Appealability & Review:

Interlocutory Review – As of Right

A

Orders re:

1) Injunctions;
2) Receivers;
3) Property possession;
4) Admiralty;
5) Patent infringement;
6) Grant/deny class cert.

73
Q

Appealability & Review:

Interlocutory Review – Discretionary

A

Court may review interlocutory orders only if:

1) Order involves controlling question of law;
2) Substantial ground for difference of opinion;
3) Immediate appeal may advance ultimate termination of case; and
4) Court of appeals allows appeal.

74
Q

Types of Extraordinary Writs

A

Writ of Mandate: compel lower court to do something law requires.

Writ of Prohibition: to stop a lower court from doing something the law doesn’t allow.

75
Q

Requirements for Extraordinary Writs

A

Party will suffer irreparable harm if writ is not issued (e.g. unusually harsh or unfair; normal appellate route is inadequate; party has beneficial interest in outcome).

76
Q

Res Judicata (Claim Preclusion)

A

Claimant won Case 1 – res judicata merges cases. Claimant lost Case 1 – res judicata bars the case. Requirements:

1) Same parties;
2) Ended in valid final judgment on the merits; and
3) Assert the same cause of action/claim.

77
Q

Collateral Estoppel (Issue Preclusion)

A

1) Against someone who was a party in Case 1;
2) Case 1 ended in valid, final judgment on the merits;
3) Issue actually litigated and determined; and
4) Issue essential to the judgment.

78
Q

Who asserts Collateral Estoppel (Issue Preclusion)?

A

Non-mutuality Defensive: D can assert if P was party to prior case, but only if P had full chance to litigate.

Non-mutuality Offensive: P can assert against D if not “unfair”:

1) D had full and fair opportunity to litigate;
2) Party could foresee multiple suits;
3) P couldn’t have been joined easily; and
4) No inconsistent judgments on record.

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