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Bar Exam > Federal Civil Procedure > Flashcards

Federal Civil Procedure Flashcards

1
Q

Well Pleaded Complaint Rule

A

A question of federal law must arise in P’s affirmative claim. Can have a state law question if the federal question is:

  1. actually in dispute
  2. demands federal judges expertise and ought to be resolved uniformly AND
  3. not so commonly present in state law actions to trample their jurisdiction
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2
Q

Diversity Jurisdiction

A
  1. Actions between citizens of different states AND
  2. Amount in controversy is greater than $75,000
    (measured at time suit is filed)
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3
Q

Diversity Jurisdiction in Class Actions

A
  1. More than 100 persons AND

2. $5 million in controversy

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4
Q

Aggregations of Claims

A

P can bring multiple claims against D which will be aggregated to reach $75,000

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5
Q

Supplemental Jurisdiction

A

Allows a claim falling outside federal question or diversity jurisdiction to piggyback onto a claim that does fall within federal question jurisdiction or diversity.

  1. Does claim arise from the same transaction/occurrence?
  2. Is the anchor claim federal question?
  3. Is there good reason for the court to decline anyway?
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6
Q

Removal

A

D can remove from state to federal court if the case could have originally been filed in federal court.

Exception: D cannot remove if:

  1. federal jurisdiction would be grounded only in diversity action AND
  2. D is a citizen of state where P filed suit

If there are multiple Ds all have to agree to remove and it must be done within 30 days of when grounds for removal became apparent.

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7
Q

Residency

A

If party is a resident of the state where suit is filed, personal jurisdiction is constitutional. Corporations is a resident of states where incorporated and where it has its principal place of business.

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8
Q

Consent

A

Party can consent to personal jurisdiction by:

  1. appearing in court without objecting to personal jurisdiction
  2. If signed contract with choice-of-forum clause
  3. business appoints agents located in the state to receive process
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9
Q

Service

A

D is serviced with process while in state where suit is filed. Not constitutional if D is enticed or forced into state or D was in state to participate in a different legal proceeding.

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10
Q

Minimum Contracts

A
  1. D has minimum contract with the forum state (established if D causes harm in the state, does business, or has real property in the state)
  2. Claims against D arises from that contact AND
  3. Personal jurisdiction won’t offend traditional notions of fair play and substantial justice
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11
Q

General Jurisdiction

A

Business contracts must be so significant that the company, though not incorporated or headquartered in the state, is essentially at home there that personal jurisdiction is appropriate

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12
Q

Venue: All Ds Reside in Same State

A

District where any single D resides

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13
Q

Venue: Ds Reside in Multiple States

A

Location of harm

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14
Q

Transferring Venue

A
  1. Convenience: Could have been filed there in the first place and transfer is necessary for convenience of parties and/or witnesses
  2. Agreement
  3. Interest of justice: Court can dismiss in the interest of justice and transfer it to where it could have been filed.
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15
Q

Forum Non Conveniens

A

If the most convenient forum is not in the US, court cannot transfer, but can dismiss without prejudice so that P can refile in the proper country.

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16
Q

Contents of the Complaint

A
  1. Grounds for subject matter jurisdiction
  2. Statement of facts sufficient to show that P is entitled to relief
  3. Demand for judgment and the relief sought
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17
Q

Amending the Complaint

A

Party can amend pleading once as a matter of right within 21 days of serving it or within 21 days of serving an answer to a motion to dismiss.

After that party can amend with permission of other party or court.

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18
Q

Service of Process

A

Must include both the complaint and the summons and must be served within 90 days of filing the complaint.

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19
Q

Place of Service of Process

A

D is natural person

  1. Deliver to D
  2. Leave at D’s residence with a person of suitable age and discretion residing there
  3. Serve D’s registered agent
  4. Mail with letter requesting D waive in-person service

D is corporation serve with

  1. an officer
  2. a managing agent or general agent OR
  3. any other agent authorized by appointment or by law to receive service
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20
Q

Answer

A

D admits or denies P’s allegations and lists defenses they might have. For each allegation, D should specifically admit or deny, if failure to deny it is deemed admitted

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21
Q

Waiver of Defenses

A

If defenses aren’t raised in answer it is generally waived.

Exceptions:

  1. Failure to state a claim
  2. Failure to join necessary party
  3. Lack of subject matter jurisdiction
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22
Q

When to File Answer

A

If D was served with process, 21 days to respond

If D waived service, 60 days to respond

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23
Q

Preliminary Injunction

A
  1. Likelihood of success on the merits
  2. Irreparable harm
  3. Balancing of hardships on P and D
  4. Public interest AND
  5. Payment of security
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24
Q

Temporary Restraining Order

A

Can only be issued without notice if
1. Specific facts clearly show that immediate and irreparable injury, loss, or damage will result before the adverse party can be heard in opposition AND
2. The movant’s attorney certifies in writing any efforts made to give notice and the reasons why it shouldn’t be required
(expires within 14 days)

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25
Q

Permissive Counterclaim

A

If claim doesn’t arise out of the same transaction or occurrence underlying P’s claims against D, then D may file a permissive counterclaim but not required to do so

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26
Q

Compulsory Counterclaim

A

If claim does arise out of the same transaction or occurrence underlying P’s claim against D, D must file or forfeit the claim.

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27
Q

Cross-Claims

A

A party my rise a claim against a co-party if it arises from the same transaction underlying P’s claim.Once a related cross claim is filed then unrelated ones can be filed.

28
Q

Impleader Claims

A

D brings suit against person not already a party and must allege that 3rd party is responsible for some or all of the liability. Must be done within 14 days of answering or with permission of the court.

29
Q

Permissive Joinder

A

Multiple Ps can join 1st suit or multiple Ds can be sued in 1st suit, as long as:

  1. joined parties claim relief or face liability that arises out of the same transaction OR
  2. there will arise questions of law/fact common to joined parties
30
Q

Mandatory Joinder

A
  1. Is absent party necessary? (Do they have an interest that might be impaired if left our or can complete relief not be issued in the party’s absence?)
  2. Can the party be joined? (look at personal jurisdiction and subject matter jurisdiction)
  3. If cannot be joined, are they indispensable? Yes, then dismiss suit. No, then adjudicate.
31
Q

Forming Class Action

A
  1. Numerosity: So many claimants that joinder is impractical
  2. Commonality: Same questions of law or fact
  3. Typicality: Claims are typical of class members ensuring the representative will have an incentive to litigate in ways to protect class
  4. Representativeness: Parties will fairly and adequately protect the interests of the class
32
Q

Class Action

A

Court must have personal jurisdiction over every D and only the named P. When alleging state law violation, class can appear in federal court only if Ds and representatives of Ps are completely diverse

33
Q

Interpleader Claims

A

Allows the two other parties to sue each other while the other party waits for an adjudication on liability

34
Q

Erie Doctrine

A

When there is a conflict between state and federal law apply:

  • state substantive law
  • federal procedural law
35
Q

Intervention

A

Non-party is interest and hasn’t be joined.

36
Q

Mandatory Disclosures

A
  1. Initial disclosures within 14 days after discovery conference
  2. Expert disclosure at least 90 days before trial
  3. Pretrial disclosures at least 30 days before trial
37
Q

Initial Disclosures

A

Includes:

  1. name/contact info of witnesses
  2. copies of docs
  3. computation of damages
  4. copies of insurance agreement
38
Q

Expert Disclosure

A

Must include:

  1. name of expert and contact info
  2. final report including qualifications, opinion, and info relied upon
39
Q

Pretrial Disclosures

A

Must include:

  1. List of witnesses
  2. witnesses they may call if the need arises
  3. list of witnesses whose testimony will be given through deposition or transcript
  4. docs or physical evidence that will be presented
40
Q

Scope of Discovery

A

Allowed to discovery any non-privileged matter that is relevant to any claim or defense and proportional to the needs of the case

41
Q

Work Product

A

Document created by a party or attorney in anticipation of litigation is undiscoverable

Exceptions:

  1. party can obtain statement it made
  2. Can get work product if party has substantial need and can’t get it without substantial hardship
42
Q

Privilege

A

Attorney/Client: Covers confidential communications between attorney and client for the purpose of obtaining or rendering legal advice is undiscoverable

43
Q

Undue Burden

A

Exists in the following circumstances:

  1. discovery is unreasonably cumulative or can be obtained from less burdensome source or in less burdensome way
  2. party has ample opportunity to obtain info themselves
  3. burden or expense of proposed discovery outweighs benefits
44
Q

Experts

A

Undiscoverable if non-testifying expert, unless party has extraordinary need/no other way to obtain such info.

If testifying, opposing party can discover:

  1. compensation for expert
  2. data provided by attorney to expert
  3. any assumption attorney asked expert to make in opinion
45
Q

Interrogatories

A

Ask up to 25 questions and party has 30 days to respond in writing with objections stated with specificity

46
Q

Depositions

A

May do up to 10 depositions, but can get more with a court order. May use a deposition at hearing or trial if other party had reasonable opportunity to be present.

47
Q

Subpoenas

A

duces tecum - demand for docs
testificatum- demand for testimony
Person served may object as outside scope of discovery or if it requires the person to travel 100+ miles from work or home

48
Q

Motion to Compel

A

If granted, then movant gets fees/expenses

if denied, non-movant may get fees but only if motion was not substantially justified

49
Q

Sanctions

A

Available after a motion to compel has been made and the party still doesn’t comply.

  1. court order declaring facts established for requesting party
  2. court order prohibiting disobedient party from presenting certain claims or defenses
  3. stay or dismissal of entire action
  4. order of contempt
50
Q

Voluntary Dismissal

A

Can be done by:
1. Unilateral dismissal by filing notice any time before D has filed an answer or motion for summary judgment
2. Settlement
3. Permission of the court
(1st dismissal is presumed without prejudice, 2nd is with prejudice)

51
Q

Involuntary Dismissal

A

If P fails to prosecute her case or refuses to comply with a court order, D can move to dismiss.

52
Q

Default Judgment

A

P properly serves D and D never responds

53
Q

Grounds for Motion to Dismiss

A

Must be filed before an answer is filed for

  1. lack of subject matter jurisdiction
  2. lack of personal jurisdiction
  3. improper venue
  4. insufficient process
  5. insufficient service of process
  6. failure to state claim upon which relief can be granted
  7. failure to join indispensable party
54
Q

Waiver

A

Must include in 1st response:

  1. lack of personal jurisdiction
  2. improper venue
  3. failure to constitutional process
  4. failure of statutory process

Must be raise before trial ends:

  1. failure to state a claim upon which relief can be granted
  2. failure to join a necessary party

Never waived: Lack of Subject Matter Jurisdiction

55
Q

Motion for Summary Judgment

A

Must be made 30 days after the close of discovery

  1. Assess only the arguments advanced by the movant
  2. Examine non-movant’s response which must bring evidence sufficient for a reasonable jury to find in her favor
56
Q

Right to Jury Trial

A

Right to jury when seeking monetary relief, not injunctive relief. Must be made 14 days after the last pleading directed to the jury-eligible issue is filed. File with court and serve on other parties a written jury demand.

57
Q

Motion for Judgment as a Matter of Law

A
  1. Party against whom judgment is enter has been fully heard on the issue AND
  2. Party lack sufficient evidence to prevail on issue necessary to claim or defense
58
Q

Jury Verdict

A

Must be unanimous unless otherwise stipulated and must be rendered by a jury of at least 6 and max 12.

59
Q

Renewed Motion for Judgment as a Matter of Law

A

Must be filed within 28 days of entry of judgment. In ruling on this motion the court may:

  1. allow verdict to stand
  2. enter opposite verdict
  3. order a new trial
60
Q

Motion for New Trial

A

Must file within 28 days of entry of judgment. Grounds:

  1. against the great weight of the evidence
  2. excessive damages
  3. procedural error or misconduct (error affected result of trial and party objected to error)
  4. newly discovered evidence
61
Q

Motion for Relief from Judgment

A

Asks the court to undo the judgment and set aside. Must be made within a reasonable time after learning of the grounds and cannot be made more than 1 year after judgment. Grounds:

  1. mistake, inadvertence, or excusable neglect
  2. newly discovered evidence
  3. fraud, misrepresentation or misconduct by party
  4. judgment is void, court lacked subject matter or personal jurisdiction
  5. judgment has been satisfied
  6. any other justifiable reason
62
Q

Appellate Jurisdiction

A

Federal circuit courts can only hear appeals of:

  1. final judgments
  2. order pertaining to preliminary injunctive relief
  3. order pertaining to certification of a class
  4. order that has been certified by the district court for appeal
  5. Collateral order (pertains to matter unrelated to merits, conclusively decides a particular issue, and delaying judgment would effectively deny appellate review of the issue)
63
Q

De Novo

A

No deference to lower court, addresses legal issue as if it has never been addressed. Applies to questions of law

64
Q

Clearly Erroneous

A

Is the judgment clearly wrong? Applies to question of fact.

65
Q

Appellate Procedure

A

Must file within 30 days of judgment

66
Q

Res Judicata

A

Bars claimants from relitigating a case they already lost
1. same parties
2. arising out of the same transaction
3. it was determined on the merits by a court with proper jurisdiction
(D cannot bring a waived compulsory counterclaim in second suit)

67
Q

Collateral Estoppel

A

Bars relitigation of issues even when parties are different

  1. was litigated and determined
  2. issue must have been essential to judgment
  3. prior suit must have ended in a judgment on the merits
  4. party against whom preclusion is asserted must have had full and fair opportunity, as well as incentive, to litigate the issue in the first suit

Bar Exam (21 decks)

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