FINAL Flashcards
1
Q
Civil Procedure
A
The process of enforcing civil rights.
2
Q
Substance
A
Defines legal rights and duties in an everyday context
3
Q
Procedure
A
Sets out the rules for enforcing substantive rights in the courts.
4
Q
Goals of Civil Procedure
A
truth, justice, fair process, efficiency
5
Q
Judge as umpire
A
Umpires don’t make the rules–they apply them. But even umpires have judgment and discretion.
6
Q
Disqualification statute
A
28 USC 455
7
Q
Recusal
A
Judges must recuse themselves in situations where their impartiality may be questioned. Includes:
- having a personal bias or prejudice against a party
- having been exposed or actively involved in the case while working as a lawyer
- having a financial interest, no matter how small
- family member involved/has a stake in the proceedings
8
Q
Personal Jurisdiction
A
Ensures D has sufficient minimum contacts with the forum of the trial. Considerations include:
- extent of activities
- whether you are enjoying benefits and protections of the forum
- whether the contacts are related to the claim in question
- convenience/inconvenience to D of litigating in a forum far from home.
9
Q
Venue
A
Which judicial district you sue in
10
Q
Subject Matter Jurisdiction (federal courts)
A
Three Methods:
- diversity
- federal question
- supplemental
11
Q
Diversity
A
- None of the plaintiffs share citizenship with any of the defendants
- amount in controversy exceeds $75,000
12
Q
Supplemental Jurisdiction
A
Two claims arising out of the same conduct can be tried together in federal court, as long as one of them has federal jurisdiction.
13
Q
Presence is certain
A
Contacts high, relationship of contacts to liability high
14
Q
No presence
A
Contacts low, relationship low
15
Q
On the margin
A
If either contacts or relationship is low
16
Q
Domicile test
A
Used for determining where a person is a citizen. You must be a resident + have the intention to remain there indefinitely.
17
Q
Corporate citizenship
A
- state of incorporation
- state of headquarters
18
Q
Determining amount in controversy
A
- Amount claimed in good faith by plaintiff
- can combine unrelated claims against D to reach threshold
- At least one co-plaintiff must have $75,000 in controversy; otherwise, claims can’t be combined to reach the threshold.
19
Q
Federal Question
A
Must be present when the complaint is filed. Can’t arise from anticipated defenses, etc.
20
Q
Can federal claims be litigated in state court?
A
Yes
21
Q
American Rule
A
Each party pays for its own lawyers except in cases covering civil rights, consumer fraud, etc.
22
Q
42 USC 1983
A
- D acts “under color of state law”
- D deprives P of right guaranteed under federal law
23
Q
Mediation
A
3rd party helps end a dispute but has no authority to decide who is right.
24
Q
Arbitration
A
3rd party helps end dispute and has authority to decide dispute. Can give you a preview of how a dispute would play out in trial. Not binding unless designated as such.
25
Rule 11 Issues
- filed for improper purpose
- not warranted by existing law or good faith argument for extension/modification/reversal
- factual contentions/denials do not have evidentiary support
26
Rule 11 Sanction
Court may impose sanctions
- on motion (with 21 day safe harbor)
- sua sponte by show cause order
- can be monetary or nonmonetary; main goal is deterrence.
- monetary sanctions not available against party after 11b2 violation or when court issues sua sponte order after voluntary dismissal/settlement
27
Chalk Test
Court considers:
1. Movant's probability of success on the merits
2. Irreparable injury to movant if preliminary injunction is denied
3. balance of hardships (can include social impact)
28
TRO
- short-term measure (lasts only 2 weeks and should be replaced with preliminary injunction).
- don't need to notify other party first
- threat of immediate and irreparable harm
- FRCP 65
29
Preliminary Injunction
FRCP 65 - Maintains the status quo while litigation is ongoing.
30
Start of a lawsuit
Filing of complaint with court (FRCP 3)
31
Contents of complaint
- short, plain statement for grounds of court's jurisdiction
- shows P is entitled to relief
- demand for relief sought
- FRCP 8
32
Rule 12e
Motion for a more definite statement when it is so vague or ambiguous that the party cannot reasonably prepare a response.
33
Rule 12f
Motion to strike - can get rid of redundant or immaterial matters.
34
Alternative pleading
Rule 8d -- appropriate where a party is unsure about the truth of some facts. However, 11b still obligates you to make reasonable inquiries into the facts.
35
Heightened pleading
Rule 9b - more detailed pleading required for allegations of fraud and mistake.
36
When is 12b6 available?
- Fail to state all essential elements of the claim (sloppy pleading)
- Underlying facts do not support a viable claim (unfavorable law)
- Twombly/Iqbal scenario where you don't have a plausible claim
37
Twombly
Court requires a plausible claim--enough factual matter (taken as true) for a reasonable expectation that discovery will reveal evidence of illegal agreement. Claims are not plausible if the behavior can be easily explained in more innocuous or reasonable terms.
38
Iqbal
A court must accept as true all of the facts, but not legal conclusions in a complaint. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.
39
Traditional view (Legal Model)
Judge as ermine - above any influences from the outside world
40
Attitudinal model
Judge as weasel, arises from political science. Judges are influenced by their attitude/ideological point of view.
41
Strategic choice model
judge as a fox. Judges recognize that their views will not be accepted if they are too controversial, so they moderate their views.
42
Social psychology
Judge as puppy - they want to be accepted/don't want to be hated
43
Economics
Judge as cat - judges are self-interested actors and profit maximizers.
44
When must defendant answer?
Within 21 days of being served (FRCP 12a1A).
45
When must defendant answer after serving a pre-answer motion?
- if the motion is denied, answer due 14 days thereafter
| - if court grants 12e, answer due 14 days after more definite statement served
46
Rule 12g
Aggregate all defenses and can't make another motion raising a defense that was available to the party but omitted from its earlier motion.
47
Least Favored Defenses
- Personal jurisdiction, venue, insufficient process, insufficient service of process.
- can be raised in pre-answer motion or answer if a pre-answer motion hadn't been filed.
- waived if not in the answer or pre-answer motion
48
Favored Defenses
- Failure to state a claim and failure to join a party
| - Raised in pre-answer motion, in the answer, at a 12c motion for judgment on the pleadings, at trial
49
Most Favored Defenses
- subject matter jurisdiction
| - Can be raised at any time
50
How can a judgment be set aside?
- If it is an entry of default, Rule 55c allows it to be set aside for good cause
- A final judgment can be set aside pursuant to Rule 60b
51
What factors help the court decide if there is "good cause" for a court's decision on a Rule 55c motion?
- whether the plaintiff will be prejudiced
- whether the defendant has a meritorious defense
- whether culpable conduct of the defendant led to the default
52
Answer components
- admissions/denials
- listing defenses
- counterclaims
- crossclaims
53
Affirmative Defense
Rule 8c - Must be pled by the defendant. Also known as "confession and avoidance." Even if claims are true, there is a legally sufficient defense to avoid liability.
54
How does a court determine whether a counterclaim is compulsory?
- Logical relationship
| - Same evidence standard
55
Counterclaim
Brought by D against P
56
Compulsory Counterclaim
Rule 13a - Claim that arises out of the same transaction or occurrence as the plaintiff's claim.
-use it or lose it --> can't be brought up in a separate claim later
57
Permissive Counterclaim
Rule 13b - Does not arise out of the same transaction or occurrence.
58
Crossclaim
13g - Claim against a co-party that must arise out of the same transaction or occurrence as the original claim. Can't be used to add a new party
59
Voluntary dismissal
- a "graceful way out" early in the litigation process
- plaintiff may dismiss their own action without prejudice to refile later
- Rule 41a
60
Amending the pleading
- Rule 15a allows amending once as a matter of course
- must happen within 21 days of receiving the response
- other amendments require the opposing party's consent or the court's leave
61
Relation Back
Allows an amended complaint to get around the expired statute of limitations. 3 requirements:
- must arise out of the same transaction/occurrence as the issue in the original pleading
- party must have received notice within the 4m service period
- party must have known or should have known that the action would have been brought against them if not for a mistake concerning the proper party's identity.
62
Real Party in Interest
Plaintiffs who have "legal title" to the right asserted. Can sue in their own name or assign rights to someone else. Rule 17
63
Joinder of Claims
A party can join related and unrelated claims under Rule 18
64
Permissive Joinder
Allows plaintiffs to join as parties persons who:
- assert joint, several, alternative right to relief
- out of the same transaction, occurrence, or series
- with "any" common question of law or fact
- Rule 20
65
Required Joinder
Used by defendants to join parties who are necessary where joinder is feasible.
66
When is a party "required"?
- complete relief cannot be accorded among those parties unless the absentee is made a party OR
- the absentee claims an interest relating to the subject of the action.
67
When is joinder feasible?
When there are no problems with:
- service of process
- subject matter jurisdiction
- venue
68
Considerations when dismissing an action where joinder is required but infeasible
- Will there be prejudice to existing parties or the absentee?
- extent to which court order can avoid prejudice
- will judgment without absentee be adequate?
- Will plaintiff have an adequate remedy if action is dismissed for nonjoinder?
69
Impleader
- available to people cast in role of a defendant
- built on derivative liability: if you're liable to plaintiff, then another party is liable to you
- includes indemnification, contribution, breach of warranty
70
Interpleader
Used by a stakeholder who is at risk of multiple, inconsistent claims against his defined stake.
- Offensive: person at risk initiates the action
- Defensive: stakeholder has already been sued and used counter/crossclaims to get a full set of claimants in the litigation
71
Rule v. Statutory interpleader
```
Rule 22:
-complete diversity between stakeholder and claimants
-over $75,000 in controversy
-venue and service restricted
Statutory (sec. 1335)
-minimal diversity between any two claimants
-$500 threshold
-venue and service expansive
-stake must be deposited in escrow
```
72
Intervention as of right
Rule 24a2
- motion is timely
- movant claims a direct interest relating to property or transaction subject to the action
- disposition may as a practical matter impair movant's ability to protect its interest
- UNLESS applicant's interest is adequately protected by existing parties
73
Permissive intervention
Rule 24b
- motion is timely
- applicant's claim/defense and main action have common question of law or fact
- consider whether intervention will unduly delay or prejudice adjudication of rights or original parties
74
Class action threshold requirements
Rule 23a
- numerosity
- commonality
- typicality
- adequacy of representation
75
Additional class action requirements
Rule 23b
- separate actions would establish incompatible standards of conduct or would impede other class members' ability to protect their interests
- party opposing the class has acted in ways that apply generally to the entire class, making injunctive relief appropriate for the class as a whole
- common questions of law or fact predominate and it's generally better to have everyone together
76
What has to be contained in initial disclosures?
Rule 26a1
- identity of individuals with discoverable information
- copy or description by category and location of documents
- computation of damages & related documents
- insurance agreements
77
When must initial disclosures be made?
Within 14 days of 26f meeting
78
What is in the pretrial disclosure?
- identify expected/possible witnesses
- designate witnesses whose testimony is expected by deposition
- identify expected or possible documents/exhibits
79
When must pretrial disclosures be made?
At least 30 days before trial
80
Depositions
- Rules 27, 30-32
- parties and nonparties
- written and oral
- benefit is spontaneous answers to questions
- limited to 10 without further court permission; 7 hours each
- after 26f conference unless you need to preserve testimony
81
Interrogatories
- Rule 33
- series of written questions that get written answers
- Limit of 25 without court permission
- done after 26f conference
82
What if you need to preserve testimony?
Use Rule 27 and take a deposition before the 26f conference
83
Document discovery
Rule 34
- includes physical and electronic information
- can only be solicited from parties except with a document subpoena at a deposition
- after 26f conference
- electronic documents have to be in the format agreed upon in the 26f conference
84
Physical and Mental Exam
- Rule 35
- only for parties
- need court approval before it happens
- mostly used to substantiate P's claims
85
Request for Admission
- Rule 36
- List of yes/no questions after the answer is filed
- only discovery device where you don't need a motion to compel if they fail to answer
- failing to comply is considered admission
86
Basic Standard of Discovery
May obtain discovery on nonprivileged matter that is relevant to party's claim or defense and proportional to the needs of the case
87
When can court limit extent of discovery?
- if it is cumulative or duplicative or can be determined from a source that is easier to access
- if opposing party has had ample opportunity to obtain the information by discovery
- if it is outside the scope of relevance
88
Protective Order
- Rule 26c
- used to stop discovery that is not permissible
- must include certification of efforts to resolve discovery dispute without court action
89
Work Product Protection
- Rule 26b3
- protects documents and tangible things prepared in anticipation of litigation
- especially protects mental impressions of the lawyer
- can be discovered if it is otherwise discoverable under Rule 26b1 and there is substantial need
90
Difference between Hickman and 26b3
- Hickman protects the substance of oral interviews, which 26b3 does not
- between both of them, work done by the party and the lawyer is protected
91
Are lawyers' thought processes discoverable?
No, because of 26b5. You can redact the parts of the documents that include the thought process if the rest of the document has to be discovered
92
Attorney Client privilege elements
- communication between attorney and client
- for the purpose of obtaining legal advice or services
- kept confidential
* does not need to be in anticipation of litigation*
93
Experts who are specially retained in anticipation of litigation and who will not testify
- Rule 26b4B
| - Exceptional circumstances under which it is impracticable to obtain information by other means
94
Experts who are specially retained in anticipation of litigation and who will testify
- Rule 26b4A
| - Deposable
95
Employee experts who are not specially retained but who nonetheless do work for the party in anticipation of litigation
- Rule 26b3
- Party work product discoverable upon a showing of substantial need and inability to obtain equivalent information without undue hardship
96
Experts whose work is relevant but is not prepared in anticipation of litigation
- Rule 26b1
| - Generally discoverable
97
Motion to Compel
- Rule 37
- must include a certification of efforts to obtain discovery/disclosure without court action
- applies to failures to make a disclosure or to answer a deposition question, an interrogatory, or permit a document inspection
- applies to evasive/incomplete responses
- loser pays attorneys' fees unless its position was substantially justified
98
Who can seek summary judgment?
The court, plaintiff, or defendant
99
What can the court do after notice and opportunity to respond to SJ?
- grant SJ for non-movant
- grant SJ on grounds not raised by a party
- consider SJ on its own after identifying non-disputed facts for parties
100
When is SJ motion timely?
Any time until 30 days after the close of all discovery
101
What must movant show to be entitled to SJ?
There is no genuine dispute as to any material fact and movant is entitled to judgment as a matter of law
102
How can a party show there is no genuine dispute of fact?
- cite materials in the record that establish absence of dispute
- show that materials cited do not establish presence of dispute
103
Fundamental difference between 12b6 and summary judgment
In 12b6, you assume all the alleged facts are true. In SJ, you do not.
104
Approaches to meeting defendant's burden under 56a (SJ)
- disprove an essential element of P's claim (Adickes)
- must show an absence of evidence in the record sufficient for P to establish an essential element of claim (Celotex)
- simply move for summary judgment
105
Phases of trial
jury selection, opening statements, presentation of evidence, closing argument, jury instructions, jury deliberation & verdict, post-trial motions, judgment
106
When can a party move for JMOL (pre-jury verdict)?
As soon as a party is fully heard on a matter
107
Standard for JMOL
A reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue
108
Why does JMOL not violate the 7th amendment?
It serves as a review of a prior motion instead of a reexamination of the jury's decision
109
When can a post-verdict JMOL be filed?
Up to 28 days after entry of judgment or after the jury was discharged
110
Lavender vs. Galloway standard
- If you're advocating for JMOL, use Galloway and say there is an absence of substantial evidence
- if you're opposing JMOL, use Lavender because there is some evidence in support of your client's case
111
What is the standard for a new trial?
When the verdict is against the clear weight of evidence
112
What standard does the court of appeals apply when reviewing a district court decision denying a new trial?
There must be a clear abuse of discretion
113
When can motion for new trial be filed?
Must be filed no later than 28 days after judgment
114
Can you move for a new trial and JMOL simultaneously?
Yes
115
Court denies JMOL; grants new trial
- no appeal because there is no final decision
| - new trial happens
116
Court grants JMOL; conditionally grants new trial
- if JMOL is reversed on appeal, then a new trial follows unless circuit court orders otherwise
- losing party may move for a new trial within 28 days of JMOL being entered
117
Court grants JMOL; conditionally denies new trial
- losing party can move for a new trial
| - if circuit court reverses the JMOL, the case proceeds as the circuit court orders
118
Court denies JMOL; denies new trial
- prevailing party can assert grounds for new trial
- if circuit court reverses judgment, it may order a new trial, direct entry of judgment, or direct trial court to determine if a new trial is warranted.
