Fill in the Blank Quiz Flashcards
Personal jurisdiction requires that the defendant be _______ to the forum state’s jurisdiction and that the defendant be ________
amenable
served with proper notice
Amenability to personal jurisdiction is governed by _________ subject to ___________ of the United States Constitution
forum state’s law
Due process clause
Pennoyer v. Neff described three bases for state jurisdiction over persons and
things. They are…
——- jurisdiction over the person
_____ jurisdiction over interests in property
____ jurisdiction over seized property, where plaintiff’s claim is
unrelated to the seized property
1) In personam
2) In rem
3) Quasi in rem
Pennoyer based its jurisdictional formula on __________ over persons and property
within its borders
State power
Under Pennoyer’s in personam jurisdiction, a judgment in plaintiff’s favor….three things
would be ____ in all states
for the ____ amount of damages
may be _____ until fully collected
binding
full
enforced repeatedly
Under Pennoyer’s in rem jurisdiction, a judgment in favor of plaintiff….three things
affects ______ in a res (both ____ and _____ to the lawsuit)
does not result in ______
does not require _____ outside the forum
everyone’s issue
parties and non parties
money damages
enforcement
Under Pennoyer’s quasi in rem jurisdiction, a judgment in plaintiff’s favor…five things
entitles plaintiff to ____
Is not ____
is not ____
may not be enforced ______
may not be enforced
the property attached for jurisdiction
a personal judgement
enforceable against any other property
more than once
outside the forum
Another type of jurisdiction discussed in Pennoyer is _______, which involves the
state’s authority to adjudicate such matters as divorce, adoption, citizenship and
mental competence
status
_________ altered Pennoyer’s rule for personal
jurisdiction, replacing the concept of ______ with the new standards of
_________ and ______ provided by the “minimum contacts test.
International shoe v. Washington
state power
reasonableness and fairness
The current test for amenability, following International Shoe and other cases,
does not require the minimum contacts test if the defendant satisfies any one of the
four “traditional” bases for in personam jurisdiction. Those bases are:
_____ in the forum state
______ to jurisidiction
_______ of objection to jurisdiction
________ in the forum when served
residence
waiver
physical presence
Consent
Consent to jurisdiction has two forms, ________ and ________. ____________ are an example of express consent, and __________are an example of implied consent
expressed
implied
forum selection clauses
non-resident motorists statutes
If none of the traditional bases are present, a state may only exercise in personam
jurisdiction over defendants who have minimum contacts with the state. The two
categories of minimum contacts are ______ and ______
specific jurisidiction
general jurisdiction
____________ is where the lawsuit arises from or relates to the 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 contacts tests, which are that the defendant….
________ itself of the benefits and protections of forum law;
should have _____ that its activity would subject it to jurisdiction in the
forum state;
could ________ being haled into court in the forum state
placed its product in the _______ and could foresee that it
would be used in the forum state
1) purposefully availed
foreseen
3) reasonably anticipate
4) stream of commerce
General jurisdiction has one contact test, which is that defendant’s contacts are so _______ as to render it ________ in the forum state
continuous and systematic
essentially at home
If the defendant has no contacts with the forum (and does not meet one of the four
traditional bases of jurisdiction), then there is ____ over that
defendant. If, on the other hand, defendant does have specific or general contacts,
then the court must consider the _______ This is a
______ test with five factors, which are:
________ interest in convenient and effective relief
__________
the _______ in furthering fundamental social policies
the ______ in effective resolution of controversies
no personal jurisdiction
fair play and substantial justice test
balancing
1) burden on the defendant
2) plaintiff’s
3) the forum state’s interest
4) shared interests of several states
5) judicial system’s interest
The due process requirement for notice to defendant is stated in Mullane v. Central
Hanover. 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
An abbreviated version of the Mullane notice rule is that _______ requires
______ and _______
due process
notice
an opportunity to be heard
Which rule of the Federal Rules of Civil Procedure deals with initially notifying
the defendant of the lawsuit?
Rule 4
Under Fed. R. Civ. P. 4(e), 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 ______
1) personal delivery
2) l 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
The purposes of venue rules are:
_______ to defendant
_______ of caseload within the forum state
fairness
geographic allocation
The federal statute for general venue provisions
28 U.S.C. 1391
The purpose of forum non conveniens is to ______
based on fairness and convenience
move cases from one forum to another
Subject matter jurisdiction refers to the court’s authority to adjudicate based on the
______ and in some cases, ________
type of case
the dollar amount in controversy
Under Article III, federal courts have subject matter jurisdiction over two primary
types of cases
Federal question and diversity of citizenship
The statute dealing with general federal question jurisdiction is ____
It provides that federal courts have jurisdiction over any civil action _______ of the United States
28 U.S.C. 1331
arising under the Constitution, laws, or treaties
In addition to the general federal question provisions in 28 U.S.C. § 1331, there are
specific statutes on federal question jurisdiction, including actions against (name
three):
foreign states, admiralty, patents, civil rights, consuls, internal revenue, and
United States as plaintiff or defendant
Diversity jurisdiction is covered by ________ That statute provides that
federal courts have subject matter jurisdiction over claims between _______ or between ______and ______ where the amount in
controversy ________
28 U.S.C. 1332
citizens of different states
state citizens
foreign citizens
exceeds $75,000
Although the Constitution requires only _______, 28 U.S.C. § 1332 requires________. This means that all plaintiffs must have different citizenship than all defendants.
partial diversity
complete diversity
For diversity purposes, a corporation has two citizenships, which are
state of incorporation and 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 the amount in controversy, may Plaintiff aggregate (answer “yes” or
“no”):
a. all of Plaintiff’s claims against one defendant?
b. alternate theories of recovery for the same wrong?
c. claims of different plaintiffs?
d. claims against different defendants?
a. Yes
b. No
c. No
d. No
In some cases, a related claim that lacks diversity or federal question jurisdiction may be included. This is called _____
Supplemental jurisdiction
Federal courts traditionally abstain from _______, _______, and ______
family law, probate, and state criminal proceedings
If plaintiff has filed his action in state court, and jurisdiction is proper in federal court, defendant may remove the case to federal court. This is done by filing a_______ in federal court, attaching a copy of _______
and _______to the state court and all parties
Notice of removal
all state pleadings
giving notice
If there is a ________ defect in the removal, the case must be remanded to state
court no matter when the objection is made
jurisdictional
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 jurisdiction 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 federal district 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
The United States Supreme Court has ______ jurisdiction over disputes between states.
original
The Rules of Decision Act provides that ________ except where the Constitution or treaties of the United States or Acts of Congress
otherwise require or provide, shall be regarded as ________ in civil actions in the courts of the United States, in cases where they apply.
the laws of the 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 that when state law applies in federal court, the 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 to determine which interests
were stronger. ______ further held that one factor of the balancing test is whether the
state law in question is _______ outcome determinative. Thus,
Byrd gives more importance to ________ that absolutely change the outcome of the
case.
Byrd v. Blue Ridge
outcome determinative test
balance state and federal interests
Byrd
absolutely or definitively
To determine the content of state law in federal court, the Erie Doctrine directs that
the court give binding authority to ________ and ____________. Persuasive (but not binding) authority is found in _________ and ______ Erie also allows courts to
make ______ as to state law
state statutes
decisions from the state’s highest court
Lower state appellate courts
federal court opinions on state law
an educated guess
The Rules Enabling Act (28 U.S.C. § 2072) provides the United States Supreme
Court may enact the __________ provided that no rule may
__________ any substantive right
Federal Rules of Civil Procedure
abridge, enlarge, or modify
The most prominent Rules Enabling case is ________, which resolves the conflict between the Rules Enabling Act and the ________
Hanna v. Plumer
Erie Doctrine
Hanna v. Plumer also introduced the concept of the “twin aims of Erie,” which are to (1) discourage _______, and (2) avoid the
forum shopping
inequitable administration of the law
Choice of law is the process by which courts deter mine which ___________ law will be applied in a case
state’s or nation’s
Choice of law rules may be ________ or _______
statutory
common law
One example of a common law choice of law rule is the Texas case of Duncan v. Cessna, which holds that Texas courts will use the ________ to choose the governing law. This rule applies except where there is a _________, or where the action is based on 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 the
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. a short and plain __________ showing that the pleader is
c. a demand for ______
complaint
subject matter jurisidiction
statement of the claim
entitled to relief
judgement
In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the United States Supreme Court held that a properly-stated claim must “contain sufficient ______ accepted as true, to state a claim for relief that is _________
factual matter
plausible on its face
n federal court, defendant’s answer must respond to each paragraph of plaintiff’s
complaint with one of the following:
a. ________
b. _________
c. statement that defendant ________
admission
denial
lacks sufficient information to respond
In addition to the foregoing, defendant may plead ___________. If
defendant fails to plead these, they are _____ Name three examples:
affirmative defenses
waived
— contributory negligence
— assumption of risk
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— fraud
— statute of limitations
— discharge in bankruptcy
— estoppel
— failure of consideration
— payment
— release
— res judicata
— statute of frauds
F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which
certifies that he or she has made a _______ and that the pleading is (1)
not being presented for any ________; (2) ________ or a
________ for the extension, modification, or reversal of existing law
or the establishment of new law; (3) supported by ______, or will likely be after a
reasonable opportunity for discovery. ______ must be warranted on the
evidence or based on a reasonable lack of information or belief
reasonable inquiry
improper purpose
warranted by existing law
non frivilous argument
evidence
Fact denials
If plaintiff’s initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a ____________ under F.R.C.P. 12(e). This must be filed ______ the Answer.
Motion for more definite statement
before
Defendant may use a ________ under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter
Motion to strike
Defendant may challenge the Complaint’s legal sufficiency by a ______, under F.R.C.P. 12(b)(6)
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 are ______ 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 a new claim that is barred by the statute of limitations, that new claim will be allowed if it is related to the original claim and if the new claim would have been timely if filed with the original claim. This is the _______ in Fed. R. Civ. P. 15(c)
doctrine of relation back
The doctrine of relation back also allows a plain tiff to add a new defendant after the statute of limitations has run if the ______ in Rule 15(c) is satisfied.
balancing test
If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff’s _________
Motion for trial amendment
One exception to Rule 8’s notice pleading rule (“short plain statement of the claim”) is that allegations of ______ must be plead with particularity
fraud
F.R.C.P. 13(a) requires defendant to assert any opposing claim against plaintiff that ___________ that is the subject matter of plaintiff’s claim. This is known as a _________ If defendant fails to assert such a claim, he is ______ from raising the same claim in a later lawsuit.
arises out of the transaction or occurrence
compulsory counterclaim
barred
Exceptions to the requirement of asserting the claims discussed in the preceding
question include:
a. where defendant __________ of plaintiff’s claims prior to filing an
Answer.
b. where the counterclaim has not —– or ——-
c. where the counterclaim requires an additional party over whom the court ________
d. where the counterclaim is the subject of ________
e. where plaintiff’s action is not based on ________ over defendant
(i.e. an in ____ action)
wins a dismissal
risen or matured
lacks personal jurisdiction
another pending action
personal jurisdiction
rem
Permissive claim joinder allows any party to join _______ against ______
unrelated claims
existing parties
In spite of the liberal rules for permissive joinder, all crossclaims and third party claims must be ______ to the plaintiff’s claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an _____ claim
related
unrelated
______ parties (f/k/a compulsory parties) are those who must be joined if
possible. F.R.C.P. 19 addresses this issue in two parts:
a. Rule 19(a) identifies required parties, who must be joined if ______;
b. Rule 19(b) addresses what must happen when joinder is not feasible, which is either _______ or ________
Required
feasible
dismissal
litigation without the required party
F.R.C.P. 20 governs permissive joinder of parties. It permits __________ to
join in one lawsuit if
a. each plaintiff asserts any right to relief arising out of the same ________, _________ or series of transactions or occurrences, ______
b. “any question of _____ common to all these persons will arise in the
same action.”
Rule 20 also permits ___________ to __________ if they meet this test.
multiple plaintiffs
transaction
occurrence
AND
law or fact
one or more plaintiffs
multiple defendants
Two other requirements for naming parties to a lawsuit are:
Real Party in interest
Capacity
Procedural devices for adding multiple parties include
impleader or third party action
interpleader
intervention
share holder’s derivative suit
class action
Federal Rule 26(a) requires parties to ______ basic information relating to evidence they will use at trial, damages, and insurance
disclose
The scope of discovery in federal courts is “. . . any ________ matter that is ________ and ________
non privileged
relevant to any party’s claim or defense
proportional to the needs of the case
The forms of discovery are: 7 of them
interrogatories
—requests to produce or inspect
—subpoenas duces tecum
—oral depositions
—written depositions
—physical and mental examinations
—requests for admission
Privileges shield information from discovery, such as:
_______, ________, _______
Discovery exemptions have a similar effect. These include
_________
__________
—attorney-client privilege
—spousal privilege
—doctor-patient privilege
—attorney work product exemption
—client investigatory exemption (in Texas state courts)
The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are _____
waived
Devices for dismissal include:
a. _______ Dismissal
b. ______ Dismissal for failure to prosecute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense.
c. Dismissal for ________
Voluntary dismissal
Involuntary
failure to state a claim
A Motion for Judgment on the Pleadings may be filed by ________ In deciding the motion, the court will look only to the _______ pleadings to determine if that pleading has stated a _____ or ________
either plaintiff or defendant
non movants
claim
defense
F.R.C.P. 56 provides that for summary judgment, the ______ is on the _______ to
show that:
a. there is ___________ and
b. movant is ____________
burden
movant
no genuine issue of material fact
entitled to judgement as a matter of law
One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleadings] is that a summary judgment motion may include _______
evidence
For summary judgment in favor of the party not having the burden of proof at trial (usually the defendant), the movant may meet the first part of the burden (no
dispute of material fact) by:
a.________
b. ________ portions of nonmovant’s essential fact allegations (Adickes)
c. pointing to the record, after a __________, and alleging that non movant lacks sufficient evidence to support an ________ of her case, upon which nonmovant has the _________(Celotex
assuming all of the non-movants facts allegations to be true
negating
reasonable time for discovery
essential element
burden of proof
For summary judgment in favor of the party bearing the burden of proof at trial, the movant must meet the burden of proof by _________ of the claim or defense.
offering evidence to establish each element
Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden
shifts to nonmovant, who may defeat the motion for summary judgment by:
________
_________
creating a fact dispute
showing that the law does not entitle movant to judgement
In deciding the motion for summary judgment, the court must
view the evidence in
the light most favorable to the nonmovant
To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which ________. If reasonable minds could not differ, then there is no fact dispute, and the judge may render
summary judgment
reasonable minds could differ
Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is the same as for a motion for _______
directed verdict
If a party lacks evidence to respond to a motion for summary judgment, that party may seek _________ under Rule 56(f)
additional time
In federal court, the trial issues of law and fact are governed by a ________ In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the__________
Pretrial order
latest pleadings
The process of questioning prospective jurors is called _______
voir dire
There are two kinds of challenges to prospective jurors:
_________ are based on the court’s ruling that reasonable cause exists to
excuse that person from jury service based on a possibility of prejudice against one
of the parties, or some other bias in the case.
_________ allow the parties a limited number of “strikes” to excuse
prospective jurors for no stated reason
Challenges for cause
peremptory challenges
Asking the court to order all witnesses other than parties to leave the room is known as ________
A defendant may move for the __________ if he has the burden of proof on all the remaining issues.
right to open and close
Under the Seventh Amendment to the United States Constitution, all parties in federal court have a right to trial by jury in ________ exceeding _______ in controversy
cases at common law
twenty dollars
In federal court, parties have no constitutional right to trial by jury in _______ cases. However, the states may grant the right to jury trial in equity cases.
equity
The right to jury trial is presumed to exist under a federal statute unless that statute _________ the right
expressly excludes
If a party fails to request a jury within the time allowed by _______ the right to jury trial is _______
forum law
waived
After all evidence and arguments have been presented, the judge describes the applicable law to the jury in _________. If the judge instructs the jury incorrectly on an issue of law, this is ________ even though it applies to the jury’s
function
jury instructions
appealable
If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the _________
trier of law and fact
As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that “directed verdict” and “judgment notwithstanding the verdict” are both known as _________
judgement as a matter of law
In a jury trial, at the close of plaintiff’s evidence, defendant may move for a ___________ (the old directed verdict) under Fed. R. Civ. P. 50(a). The judge may grant it if, viewing the evidence in the _______ a reasonable jury could not find for plaintiff
judgement as a matter of law
light most favorable
If the motion for judgment as a matter of law (or directed verdict) is denied, defendant presents his case. At the close of defendant’s evidence, __________ may move for judgment as a matter of law, which may be granted if a reasonable jury could only find for movant
plaintiff and defendant
After the jury has returned its verdict, the losing party may move for _________ (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within 28 days after entry of judgment. However, movant must have filed a motion for _________ during the trial as a prerequisite
judgement as a matter of law
judgement as a matter of law
After trial, the losing party may file a Motion for New Trial within ___________ days after entry of Judgment. The trial judge may grant a new trial on any of
the following grounds
_________
_________
__________
__________
twenty eight
trial error
newly discovered evidence
misconduct
result contrary to the great weight of the evidence
The Court of Appeals may reverse the trial judge’s granting of a Motion for New Trial only if there was _________ to support the granting of a new trial.
no evidence
Courts may grant a new trial, conditioned on remittitur or additur. ________ orders a new trial unless plaintiff accepts a lesser amount of damages. ________ orders a new trial unless defendant agrees to pay extra damages. Federal law prohibits ________ as a violation of the right to jury trial.
Remittitur
Additur
additur
A new trial may be granted for newly discovered evidence if the following
conditions are met:
— the new evidence was discovered ________
— the new evidence was not discoverable by ________ prior to the first trial
—the new evidence is not _________
—the new evidence will ________
after the first trial
reasonable diligence
merely cumulative
probably produce a new result
Under F.R.C.P. 60(a), a party may correct _______ and other ______ in a judgment. Under F.R.C.P. 60(b), 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 _______
filing a new action
newly discovered evidence or fraud
Thus there are three methods for challenging a judgment based on newly
discovered evidence or fraud:
a. _______(Rule 59)
b. ___________ (Rule 60)
c. ___________
One principle difference between these three is the ____ allowed for filing.
motion for a new trial
motion for relief from judgement
a new lawsuit
time
Appellate courts primarily review questions of law. In order to receive appellate review, there must be a trial error that was ________ by a _________
properly preserved
timely objection
Appellant may preserve error by:
a. ________ at the time of the error,
b. stating the _______ for the objection,
c. making known to the court the ______ and
d. obtaining a _______ on the objection.
Objecting
grounds
action desired
ruling
Appellate courts may also review the jury’s decision, but only as to the __________, which is also a question of ______
sufficiency of the evidence
law
________ courts may review the trial judge’s Findings of Fact in a ______. The standard of review is _______
Appellate
non jury trial
clearly erroneous
Preclusion is the doctrine that limits the relitigation of issues and claims. The two
kinds of preclusion are:
______
_______
claim preclusion
issue preclusion
Another name for preclusion is
res judicata
Claim preclusion includes the doctrines of _____ and ______
merger
bar
Merger applies to judgments for ______. It provides that a ________ for plaintiff (a) prevents plaintiff from suing again, except in a collection action on the judgment, and (b) bars defendant’s defenses in an action on the judgment.
Plaintiff
valid and final
Bar applies to judgments for _______. It provides that a judgment for defendant ________ on the same claim.
Defendant
bars another action by the plaintiff
The-elements of claim preclusion are:
same claim
same parties
valid and final judgement
Claim preclusion does not apply to certain actions, including:
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 the statute
Small claims
Issue preclusion is also known as ______
collateral estoppel
Issue preclusion does not 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 and fact
actually litigated
valid and final judgement
essential
binding on the party being estopped
Issue preclusion no longer requires ________. This is also known as “offensive collateral estoppel.” It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a ______ and (b) had a ________
mutuality of parties
party
full and fair opportunity to litigate
