Fill in the blank exam Flashcards
Personal jurisdiction requires defendant be ___ to forum state’s jurisdiction and that the defendant be ______.
amenable; served with proper notice
Amenability to personal jurisdiction is governed by the ____, subject to the limits of the ______ of the United States Constitution.
forum state’s law; due process clause
Pennoyer v. Neff described three bases for state jurisdiction over person and things. They are:
a. In personam: jurisdiction over the person
b. In rem: jurisdiction over interests in property
c. Quasi in rem: jurisdiction over seized property, where plaintiffs claim is unrelated to property.
Pennoyer based its jurisdictional formula on ___ over persons and property within its borders.
state power
Under pennoyer’s in personam jurisdiction, a judgment in plaintiffs favor:
a. would be ___ in all states
b. for the ___ of damages
c. may be ___ until fully collected
binding; full amount; enforced repeatedly
Under pennoyer’s in rem jurisdiction, a judgment in favor of plaintiff:
a. affects ___ in a res (both ___ and ___ to the suit)
b. does not result in a ___
c. Does not require ___ outside the forum
everyone’s interests; parties; nonparties; money judgment; enforcement
Under pennoyer’s quasi in rem jurisdiction, a judgment for plaintiff:
a. entitles plaintiff to _____
b. is not a ___
c. is not ___
d. may not be enforced ___
e. may not be enforced ___
property attached for jurisdiction; personal judgment; enforceable against any other party; more than once; outside the forum
Another type of jurisdiction discussed in Pennoyer is ___, which involves state’s authority to adjudicate matters such as divorce, adoption, citizenship and mental competence.
status
___ altered pennoyer’s rule for personal jurisdiciton, replacing the concept of ___ with new standards of ___ and ___ provided by the minimum contacts test.
International Shoe Co. v. Washington; state power; reasonableness; fairness
No need for minimum contacts if defendant satisfies any one of four “traditional bases:”
- residence in forum state
- consent to jurisdiction
- waiver of objection to jurisdiction
- physical presence in the forum when served
Consent to jurisdiction has two forms, ___ consent and ___ consent. _____ are an example of express consent, and _____ are an example of implied consent.
express; implied; forum selection clauses; non-resident motorists statutes
Two categories of minimum contacts are: ___ and ___
specific jurisdiction; general jurisdiction
___is where the lawsuit arises from nonresident defendant’s contacts with the forum state. ___ is where the lawsuit is unrelated to the nonresident defendant’s contacts with the forum state.
Specific jurisdiction; general jurisdiction
Specific jurisdiction has four contact tests, which are the defendant:
a. ____ itself of forum laws protections and benefits
b. should have ___ its activity would subject it to jurisdiction,
c. could ___ being haled into court, or
d. placed its product in the ___
purposefully availed; foreseen; reasonably anticipate; stream of commerce
General jurisdiction has one contact test: defendant’s contacts are so ___ as to render it ___ in the forum state.
continuous and systematic; essentially at home
If there are no traditional bases or contacts with the forum, then there is ___ over that defendant.
no personal jurisdiction
If there are specific or general contacts, then the court must consider the ___. This is a ___ test with 5 factors:
a. ___
b. ___ interest in convenient and effective relief
c.___
d. the ___ in furthering fundamental social policies
e. the ___ in effective resolution of controversies
fair play and substantial justice test; balancing; burden on the defendant; plaintiff’s; the forum state’s interest; shared interests of several states; judicial system’s interest
Notice is constitutionally sufficient if it is ___ under all circumstances, to apprise ___ parties of the pendency of the action, and afford them an ___ and ___.
reasonably calculated; interested; opportunity to appear; present objections
Abbreviated version of Mullane notice rule is that ___ requires ___ and an ___
due process; notice; opportunity to be heard
Which rule of the FRCP deals with intial notice?
Rule 4
Under FRCP 4e, in addition to service under state law, the means of service on a competent adult are:
a. ___ to defendant
b. leaving copies at ___ with a person of ___
c. serving defendant’s ___
personal delivery; defendant’s dwelling; suitable age and discretion; appointed agent
In most cases, the federal method of service on defendants outside the district is by the ___ statute of the state in which the federal court sits.
long arm
Purpose of venue rules are:
a. ___ to defendant
b. ___ of caseload within forum state
fairness; geographic allocation
Federal statute for general venue provisions is ___.
28 USC s1391
The purpose of forum non conveniens is to move ___ based on fairness and convenience.
cases from one forum to another
Subject matter jurisdiction refers to the court’s authority to adjudicate based on ___ and in some cases, ___.
type of case; the dollar amount in controversy
Under article III federal courts have subject matter jurisdiction over two types of cases:
federal question; diversity of citizenship
Statute dealing with general federal question is ___. It provides that federal courts have jurisdiction over any civil action ___ of the US.
28 USC s1331; arising under the Constitution, laws or treaties
There are also specific statutes on federal question jurisdiction, including actions against (name 3):
foreign states; admiralty; patents; civil rights; consuls; internal revenue; and the US as a plaintiff or defendant.
Diversity jurisdiction is covered by ___. It provides that fed courts have subject matter over claims between ___, or between ___ and ___, where amount in controversy ___.
28 USC s1332; citizens of different states; state citizens and foreign citizens; exceeds $75,000.
Constitution only requires __ diversity, 28 USC s1332 requires ___ diversity. This means all plaintiffs must have different citizenship than all defendants
partial; complete
For diversity purposes, a corporation has two citizenships, which are:
state of incorporation; principal place of business.
A corporation’s principal place of business is defined as its ___.
nerve center
For diversity purposes, partnerships have the citizenship of ___.
all the partners
Under the St. Paul mercury test, the amount in controversy is determined by plaintiff’s ___.
good faith pleading
In achieving amount in controversy, may plaintiff aggregate:
a. all of plaintiff’s pleadings against one defendant?
b. alternate theories of recovery for the same wrong?
c. claims of different plaintiffs?
d. claims against different defendants?
yes; no; no; no
In some cases, a related claim that lacks diversity or federal question may be included. This is called ___.
supplemental jurisdiction
Federal courts traditionally abstain from ___, ___, and ___.
family law; probate; state criminal proceedings
If plaintiff filed action in state court, and jurisdiction is proper in federal court, defendant may remove it to fed court. This is done by filing a ___ in federal court, attaching a copy of ___ and ___ to state court and all parties.
notice of removal; all state court pleadings; giving notice
If there is a ___ defect in the removal, the case must be remanded to state court no matter when the objection was made.
jurisdicitonal
If there is a ___ defect in the removal, the case must be remanded to state court if a ___.
procedural; proper and timely objection is filed
State court subject matter is governed by ___.
state law
In state courts, subject matter jurisdiction is designated by ___ and/or ___.
type of case; dollar amount
Federal courts have ___ jurisdiction over patent claims. Federal and state court share ___ jurisdiction over ___.
exclusive; concurrent; federal civil rights actions
A court has ___ jurisdiction if it is the required forum at the beginning of the case. A court has ___ jurisdiction if it may adjudicate a case only after it has been heard in a lower court.
original; appellate
A court has ___ jurisdiction over a dispute filed there and raising a federal question and ___ jurisdiction over appeals from Texas state agency decisions.
original; appellate
A federal district trial court has ___ jurisdiction over appeals from federal administrative agency decisions
appellate
SCOTUS has ___ jurisdiction over disputes between states.
original
The Rules of Decision Act provides that “the ___, except where US federal law applies, shall be ___ in civil actions in the courts of the US where they apply.”
laws of several states; rules of decision
___ interpreted the Rules of decision act to require federal courts to apply the ___ in cases where state law applied.
Swift v. Tyson; general American common law
Erie Railroad Co. v. Tompkins reversed Swift v. Tyson, holding when state law applies, federal court must apply ___.
the law of the state in which that federal court sits.
___ coined the “___,” which provides that the ___ doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.
Guaranty Trust v. York; outcome determinative test; Erie
___ modified the ___, holding that the court should ___ in the case. ___ further held that one factor is whether the state law is ___ outcome determinative. Byrd gives more importance to ___ that absolutely change the outcome of the case.
Byrd v. Blue Ridge; balance state and federal interests; absolutely or definitively; Byrd; state law
To determine the contect of state law, Erie doctrine gives binding authority to ___ and ___. Persuasive (not binding) authority includes ___ and ___. Erie allows courts to make an ___ as to state law.
state statutes; decisions from state’s highest court; lower state appellate courts; federal court opinions on state law; educated guess
Rules enabling act (28 USC s2072) allows SCOTUS to enact the ___, provided that no rule may ___ any substantive right.
Federal rules of civil procedure; abridge, modify, or enlarge
The most prominent rules enabling case is ___, which resolves conflict between REA and ___.
Hanna v. Plumer; Erie Doctrine
Hanna v. Plumer introduced the “twin aims of Erie” which are to (1) discourage ___ and (2) avoid the ___.
forum shopping; inequitable administration of the laws
Choice of law is the process by which courts determine which ___ law will be applied in a case.
state’s or nation’s
Choice of law rules may be ___ or ___.
statutory or common law.
One example of common law choice of law rule is Texas’s ___. This applies except where there is a ___ or where action is based on a contract that contains a ___.
most significant relationship test; statutory choice of law rule; valid choice of law clause
In federal courts, choice of law for non-federal question cases is controlled by choice of law rules of the ___.
state in which the federal court sits
In federal court, plaintiff’s initial pleading is called a ___. It must contain:
a. an allegation of ___
b. short and plain ___ showing that the pleader is ___
c. a demand for ___
complaint; subject matter jurisdiction; statement of the claim; entitled to relief; judgment
In Twombly & Iqbal, SCOTUS held that a properly-stated claim must “contain sufficient ___, accepted as true, to state a claim that is ___.”
factual matter; plausible on its face
In federal court, defendants answer must respond to each paragraph of plaintiff’s complaint with either:
a. ___
b. ___
c. statement that defendant ___
admission; denial; lacks sufficient knowledge to respond
Defendant may plead ___. If defendant fails to plead these, they are ___. Examples: (name three)
affirmative defenses; waived; contributory negligence; assumption of risk; fraud, statute of limitations, discharge in bankruptcy, estoppel, failure of consideration, payment, release, res judicata, statute of frauds
FRCP 11 requrires attorney or pro se party to sign pleadings which certifies that they made a ___, and that the pleading is (1) not being presented for any ___, (2) ___ or a ___ for extension, modification, reversal of existing law or establishment of new law, (3) supported by ___, or will likely be after reasonable opportunity for discovery. ___ must be warranted on the evidence or based on reasonable belief.
reasonable inquiry; improper purpose; warranted by existing law; nonfrivolous argument; evidence; fact denials
If plaintiff’s initial pleading is so vague/ambiguous defendant could not reasonably respond, defendant may file a ___ under FRCP 12e. This must be filed ___ the answer.
motion for a more definite statement; before
defendant may use a ___ under FRCP 12f to challenge any insufficient defense, or redundant, immaterial, impertinent, or scandalous material
motion to strike
defendant may challenge a complaint’s legal sufficiency by a ___ under FRCP 12b6
motion to dismiss for failure to state a claim
Defendant may challenge ___ at any time. Defendant must challenge ___ and ___ at the first opportunity or waive them.
subject matter jurisdiction; personal jurisdiction; venue
Two types of counterclaim: ___ and ___. A ___ counterclaim is one related to plaintiff’s claim. If it is not asserted, it is ___
compulsory; permissive; compulsory; waived
A third party claim is one brought by a defendant against a ___. It is based on ___ liability.
new party; derivative
Pleadings may be amended to add new ___ and new ___ or ___.
factual allegations; claims; causes of action
If a pleading adds new claim that is barred by statute of limitations, new claim will be allowed if it is related to the original claim and would have been timely if filed with the original claim. This is the ___ in FRCP 15c.
doctrine of relation back
Doctrine of relation back also allows plaintiff to add a new defendant after the statute of limitations if the ___ in Rule 15c is satisfied.
balancing test
If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that claim will be valid if the court grants plaintiff’s ___.
motion for trial amendment
One exception to Rule 8 notice pleading rule is that allegations of ___ must be plead with particularity.
fraud
FRCP 13a requires defendant to assert any opposing claim against plaintiff that ___ that is the subject matter of plaintiffs claim. This is known as ___. If defendant fails to assert such a claim, he is ___ from raising the same claim in a later suit.
arises out of the same occurrence or transaction; compulsory counterclaim; barred
Exceptions to compulsory counterclaims:
a. where defendant ___ of plaintiff’s claim before filing an answer.
b. where counter claim has not ___ or ___.
c. where counterclaim requires an additional party over whom court ___.
d. where counterclaim is subject of ___.
e. where plaintiff’s action is not based on ___ over defendant (ie an ___ action).
wins a dismissal; arisen; matured; lacks personal jurisdiction; another pending action; personal jurisdiction; in rem
Permissive claim joinder allows parties to join ___ against ___.
unrelated claims; existing parties
All cross claims and third party claims must be ___ the plaintiff’s claim. However, once a party has asserted a crossclaim or third party claim, that party may join an ___ claim. Cross claims are ___.
related to; unrelated; permissive
___ parties (fka compulsory parties) are governed by FRCP 19:
19(a): required parties must be joined if ___.
19(b): what must happen when joinder is not feasible, which is either ___ or ___.
Required; feasible; dismissal; litigation without the required party
FRCP 20 governs permissive party joinder. It permits ___ to join one lawsuit if:
a. each plaintiff asserts right to relief arising out of ___ or series of transaction so occurrences, ___
b. any question of ___ common to all persons.
Rule 20 also allows ___ to ___ if they meet this test.
multiple plaintiffs; the same transaction, occurrence; and; law or fact. one or more plaintiffs; join multiple defendants
Two general requirements for naming parties to a lawsuit are:
Real party in interest, and capacity.
Procedural devices for adding multiple parties include: (five)
Impleader or third party action;
Interpleader;
Intervention;
Class action;
Shareholders’ derivative suit
FRCP 26a requires parties to ___ basic info related to evidence they will use at trial, damages, and insurance.
disclose
The scope of discovery is any ___ matter that is ___ and ___.
nonprivileged; relevant to any party’s claim or defense; proportional to needs of the case
Forms of discovery: (seven)
interrogatories;
requests to produce or inspect;
subpoenas duces tecum;
oral depositions; written depositions;
physical and mental examiniations;
requests for admission
Privileges shield info from discovery such as: (three)
Discovery exemptions include: (two)
attorney-client privilege; spousal privilege; doctor-patient privilege.
attorney work product exemption; client investigatory exemption
Privileges and exemptions from discovery myst be raised before the deadline for responding to that discovery request or be ___.
waived
Devices for dismissal include:
a. ___ dismissal
b. ___ dismissal for failure to prosecute, failure to comply with court rules, or failure to prove claim in non-jury trial
c. Dismissal for ___
voluntary; involuntary; failure to state a claim
A motion for judgment on the pleadings may be filed by ____. In deciding the motion, the court looks to the ___ to determine if that pleading has stated a ___ or ___.
either plaintiff or defendant; nonmovant’s pleadings; claim; defense
FRCP 56: for summary judgment, the ___ is on the ___ to show:
a. there is no ___, and
b. movant is ___.
burden; movant; genuine issue of material fact; entitled to judgment as a matter of law
One difference between motion for summary judgment and motions under 12b6 (failure to state a claim) and 12c (judgment on pleadings) is that a summary judgment may include ___.
evidence
For summary judgment in favor of party w/o burden of proof, movant may meet first part of burden by:
a. ___
b. ___ portions of nonmovants essential fact allegations
c. pointing to record, after a ___, and alleging nonmovant lacks sufficient evidence to support an ___ of her case, upon which nonmovant ___.
assuming all nonmovant’s fact allegations to be true; negating; reasonable time for discovery; essential element; burden of proof at trial
For summary judgment in favor of party w/ burden of proof, movant must meet burden of proof by ___ of the claim or defense.
offering evidence to establish each element
Once movant meets initial burden under FRCP 56a and 56b, burden shifts to ___, who can defeat motion for summary judgment by:
a. ___, or
b. ___
nonmovant; creating a fact dispute; showing that the law does not entitle movant to judgment
in deciding motion for summary judgment, court must view evidence in the ___.
light most favorable to the nonmovant
To create a fact dispute that prevents summary judgment, nonmovant must offer opposing evidence on which ___.
reasonable minds could differ
Anderson v. Liberty lobby emphasizes that motion for summary judgment raises the same question as a motion for ___.
directed verdict
If party lacks evidence to respond to a motion for summary judgment, that party may seek ___ under rule 56f.
additional time
In fed court, trial issues of law and fact are governed by a ___. In state courts that don’t use pretrial order, the issues of law and fact are governed by the ___.
pretrial order; latest pleadings
The process of questioning prospective jurors is called ___.
voir dire
Two kinds of juror challenges:
a. ___ based on rulings that reasonable cause exists to excuse that person, based on possible bias or prejudice
b. ___ allow parties a limited number of strikes without cause
challenges for cause; peremptory challenges
Asking court to order all witnesses other than parties to leave the room is known as ___.
invoking the rule
A defendant may move for the ___ if he has the burden of proof on all remaining issues.
right to open and close
Under the 7th amendment, all parties in federal court have right to jury trial in ___ exceeding ___ in controversy
cases at common law; twenty dollars
The right to jury trial is presumed to exist under federal statutes unless that statute ___ the right.
expressly excludes
If a party fails to request a jury within time allowed by ___, the right to jury trial is ___.
forum law; waived
After all evidence and argument have been presented, judge describes applicable law to the jury in ___. If judge instructs jury incorrectly on an issue of law, this is ___.
jury instructions; appealable
In federal court, parties have no constitutional right to a jury trial in ___ cases.
equity
If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the ___.
trier of law and fact
FRCP were amended in 1991 so that “directed verdict” and “judgment notwithstanding the verdict” are both known as “___.”
judgment as a matter of law
In jury trial, at close of plaintiff’s evidence, defendant may move for a ___ (old directed verdict) under FRCP 50a. The judge may grant it if, viewing the evidence in the ___, a reasonable jury could only find for movant.
judgment as a matter of law; light most favorable to the plaintiff
If motion for judgment as a matter of law is denied, defendant presents its case. At close of defendant’s evidence, ___ may move for judgment as a matter of law.
plaintiff and defendant
After jury returns its verdict, losing party may move for ___ (old directed verdict) under FRCP 50b within __ days after entry of judgment. However, movant must have filed a motion for ___ during the trial as a prerequisite
judgment as a matter of law; 28; judgment as a matter of law
After trial, party may file motion for a new trial within __ days after entry of judgment. Trial judge may grant new trial on any of the grounds: (4)
trial error; newly discovered evidence; misconduct; result contrary to great weight of evidence
Court of appeals may reverse trial judge’s granting of motion for new trial only if there was ___ to support it.
no evidence
Courts may grant a new trial conditioned on remittitur or additur. ___ orders new trial unless plaintiff accepts less damages, and ___ orders new trial unless defendant agrees to pay more damages. Federal law prohibits ___ as violation of right to jury trial.
remittitur; additur; additur
A new trial may be granted for newly discovered evidence if:
-new evidence was discovered ___
-new evidence was not discoverable by ___ prior to first trial
-new evidence is not ___
-new evidence will___
after the first trial; reasonable diligence; merely cumulative; probably produce a new result
Under FRCP60a, party may correct ___ and other ___ in a judgment. Under FRCP60b, a party may ask for a new trial based on ___.
clerical mistakes; inadvertent errors; newly discovered evidence or fraud.
A party may also challenge a final judgment by ___ alleging ___ or ___.
filing a new action; newly discovered evidence; fraud
Three methods for challenging judgment based on newly discovered evidence or fraud: ____, ___, and ____. The principal difference between the three is the __ allowed for filing.
Motion for new trial (rule 59); motion for relief from judgment (rule 60); a new lawsuit. time
Appellate courts primarily review ___. In order to receive appellate review, there must be a trial error that was ___ by a ___.
questions of law; properly preserved; timely objection
Appellant may preserve error by:
a. ___ at the time of the error,
b. stating ___ for the objection,
c. making known to the court the ___, and
d. obtaining a ___ on the action
objecting; grounds; action desired; ruling
Appellate courts also review the jury’s decision, only as to the ___, which is a question of ___.
sufficiency of the evidence; law
Appellate courts may review trial judge’s findings of fact in a ___. The standard of review is ___.
nonjury trial; clearly erroneous
Preclusion doctrine limits relitigation of issues and claims. two kinds:
Claim preclusion; issue preclusion
Another name for preclusion is ___.
res judicata
Claim preclusion includes doctrines of ___ and ___.
merger; bar
Merger applies to judgments for ___. Provides that a ___ judgment for plaintiff (a) prevents plaintiff from suing again (except for collection), and (b) bars defendants defenses in action on the same judgment.
plaintiff; valid and final
Bar applies to judgments for ___. It provides that judgment for defendant ___ on the same claim.
defendant; bars another action by plaintiff
Elements of claim preclusion:
same claim; same parties; valid and final judgment
claim preclusion does not apply to:
a. dismissal on grounds of ___, ___, or ___,
b. ___,
c. where preclusion is ___
d. ___ courts (in some jurisdictions)
jurisdiction; venue; party joinder; nonsuit without prejudice; denied by statute; small claims
Issue preclusion is also known as ___.
collateral estoppel
Issue preclusion doesn’t apply to whole lawsuits, but to:
a. issues of ___
b. that were ___
c. that ended in a ___
d. where determination of that issue was ___ to the judgment, and
e. where the judgment is ___.
law or fact; actually litigated; valid and final judgment; essential; binding on the party being estopped
Issue preclusion no longer requires ___. This is also known as “offensive collateral estoppel,” meaning a person not a party to the first lawsuit can use results of the action against any person who
a. was a ___ and
b. had a ___.
mutuality of parties; party; full and fair opportunity to litigate
