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Civil Procedure > FINAL > Flashcards

FINAL Flashcards

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Civil Procedure 1L flashcards
1
Q

Civil Procedure

A

The process of enforcing civil rights.

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2
Q

Substance

A

Defines legal rights and duties in an everyday context

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3
Q

Procedure

A

Sets out the rules for enforcing substantive rights in the courts.

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4
Q

Goals of Civil Procedure

A

truth, justice, fair process, efficiency

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5
Q

Judge as umpire

A

Umpires don’t make the rules–they apply them. But even umpires have judgment and discretion.

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6
Q

Disqualification statute

A

28 USC 455

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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
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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.
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9
Q

Venue

A

Which judicial district you sue in

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10
Q

Subject Matter Jurisdiction (federal courts)

A

Three Methods:

  • diversity
  • federal question
  • supplemental
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11
Q

Diversity

A
  • None of the plaintiffs share citizenship with any of the defendants
  • amount in controversy exceeds $75,000
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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.

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13
Q

Presence is certain

A

Contacts high, relationship of contacts to liability high

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14
Q

No presence

A

Contacts low, relationship low

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15
Q

On the margin

A

If either contacts or relationship is low

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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.

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17
Q

Corporate citizenship

A
  • state of incorporation

- state of headquarters

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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.
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19
Q

Federal Question

A

Must be present when the complaint is filed. Can’t arise from anticipated defenses, etc.

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20
Q

Can federal claims be litigated in state court?

A

Yes

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21
Q

American Rule

A

Each party pays for its own lawyers except in cases covering civil rights, consumer fraud, etc.

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22
Q

42 USC 1983

A
  • D acts “under color of state law”

- D deprives P of right guaranteed under federal law

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23
Q

Mediation

A

3rd party helps end a dispute but has no authority to decide who is right.

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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.

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25
Q

Rule 11 Issues

A
  • 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
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26
Q

Rule 11 Sanction

A

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
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27
Q

Chalk Test

A

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)
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28
Q

TRO

A
  • 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
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29
Q

Preliminary Injunction

A

FRCP 65 - Maintains the status quo while litigation is ongoing.

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30
Q

Start of a lawsuit

A

Filing of complaint with court (FRCP 3)

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31
Q

Contents of complaint

A
  • short, plain statement for grounds of court’s jurisdiction
  • shows P is entitled to relief
  • demand for relief sought
  • FRCP 8
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32
Q

Rule 12e

A

Motion for a more definite statement when it is so vague or ambiguous that the party cannot reasonably prepare a response.

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33
Q

Rule 12f

A

Motion to strike - can get rid of redundant or immaterial matters.

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34
Q

Alternative pleading

A

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.

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35
Q

Heightened pleading

A

Rule 9b - more detailed pleading required for allegations of fraud and mistake.

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36
Q

When is 12b6 available?

A
  • 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
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37
Q

Twombly

A

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.

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38
Q

Iqbal

A

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.

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39
Q

Traditional view (Legal Model)

A

Judge as ermine - above any influences from the outside world

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40
Q

Attitudinal model

A

Judge as weasel, arises from political science. Judges are influenced by their attitude/ideological point of view.

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41
Q

Strategic choice model

A

judge as a fox. Judges recognize that their views will not be accepted if they are too controversial, so they moderate their views.

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42
Q

Social psychology

A

Judge as puppy - they want to be accepted/don’t want to be hated

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43
Q

Economics

A

Judge as cat - judges are self-interested actors and profit maximizers.

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44
Q

When must defendant answer?

A

Within 21 days of being served (FRCP 12a1A).

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45
Q

When must defendant answer after serving a pre-answer motion?

A
  • if the motion is denied, answer due 14 days thereafter

- if court grants 12e, answer due 14 days after more definite statement served

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46
Q

Rule 12g

A

Aggregate all defenses and can’t make another motion raising a defense that was available to the party but omitted from its earlier motion.

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47
Q

Least Favored Defenses

A
  • 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
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48
Q

Favored Defenses

A
  • 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
Q

Most Favored Defenses

A
  • subject matter jurisdiction

- Can be raised at any time

50
Q

How can a judgment be set aside?

A
  • 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
Q

What factors help the court decide if there is “good cause” for a court’s decision on a Rule 55c motion?

A
  • whether the plaintiff will be prejudiced
  • whether the defendant has a meritorious defense
  • whether culpable conduct of the defendant led to the default
52
Q

Answer components

A
  • admissions/denials
  • listing defenses
  • counterclaims
  • crossclaims
53
Q

Affirmative Defense

A

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
Q

How does a court determine whether a counterclaim is compulsory?

A
  • Logical relationship

- Same evidence standard

55
Q

Counterclaim

A

Brought by D against P

56
Q

Compulsory Counterclaim

A

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
Q

Permissive Counterclaim

A

Rule 13b - Does not arise out of the same transaction or occurrence.

58
Q

Crossclaim

A

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
Q

Voluntary dismissal

A
  • a “graceful way out” early in the litigation process
  • plaintiff may dismiss their own action without prejudice to refile later
  • Rule 41a
60
Q

Amending the pleading

A
  • 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
Q

Relation Back

A

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
Q

Real Party in Interest

A

Plaintiffs who have “legal title” to the right asserted. Can sue in their own name or assign rights to someone else. Rule 17

63
Q

Joinder of Claims

A

A party can join related and unrelated claims under Rule 18

64
Q

Permissive Joinder

A

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
Q

Required Joinder

A

Used by defendants to join parties who are necessary where joinder is feasible.

66
Q

When is a party “required”?

A
  • 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
Q

When is joinder feasible?

A

When there are no problems with:

  • service of process
  • subject matter jurisdiction
  • venue
68
Q

Considerations when dismissing an action where joinder is required but infeasible

A
  • 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
Q

Impleader

A
  • 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
Q

Interpleader

A

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
Q

Rule v. Statutory interpleader

A 
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
Q

Intervention as of right

A

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
Q

Permissive intervention

A

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
Q

Class action threshold requirements

A

Rule 23a

  • numerosity
  • commonality
  • typicality
  • adequacy of representation
75
Q

Additional class action requirements

A

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
Q

What has to be contained in initial disclosures?

A

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
Q

When must initial disclosures be made?

A

Within 14 days of 26f meeting

78
Q

What is in the pretrial disclosure?

A
  • identify expected/possible witnesses
  • designate witnesses whose testimony is expected by deposition
  • identify expected or possible documents/exhibits
79
Q

When must pretrial disclosures be made?

A

At least 30 days before trial

80
Q

Depositions

A
  • 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
Q

Interrogatories

A
  • Rule 33
  • series of written questions that get written answers
  • Limit of 25 without court permission
  • done after 26f conference
82
Q

What if you need to preserve testimony?

A

Use Rule 27 and take a deposition before the 26f conference

83
Q

Document discovery

A

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
Q

Physical and Mental Exam

A
  • Rule 35
  • only for parties
  • need court approval before it happens
  • mostly used to substantiate P’s claims
85
Q

Request for Admission

A
  • 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
Q

Basic Standard of Discovery

A

May obtain discovery on nonprivileged matter that is relevant to party’s claim or defense and proportional to the needs of the case

87
Q

When can court limit extent of discovery?

A
  • 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
Q

Protective Order

A
  • Rule 26c
  • used to stop discovery that is not permissible
  • must include certification of efforts to resolve discovery dispute without court action
89
Q

Work Product Protection

A
  • 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
Q

Difference between Hickman and 26b3

A
  • 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
Q

Are lawyers’ thought processes discoverable?

A

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
Q

Attorney Client privilege elements

A
  • 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
Q

Experts who are specially retained in anticipation of litigation and who will not testify

A
  • Rule 26b4B

- Exceptional circumstances under which it is impracticable to obtain information by other means

94
Q

Experts who are specially retained in anticipation of litigation and who will testify

A
  • Rule 26b4A

- Deposable

95
Q

Employee experts who are not specially retained but who nonetheless do work for the party in anticipation of litigation

A
  • Rule 26b3
  • Party work product discoverable upon a showing of substantial need and inability to obtain equivalent information without undue hardship
96
Q

Experts whose work is relevant but is not prepared in anticipation of litigation

A
  • Rule 26b1

- Generally discoverable

97
Q

Motion to Compel

A
  • 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
Q

Who can seek summary judgment?

A

The court, plaintiff, or defendant

99
Q

What can the court do after notice and opportunity to respond to SJ?

A
  • 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
Q

When is SJ motion timely?

A

Any time until 30 days after the close of all discovery

101
Q

What must movant show to be entitled to SJ?

A

There is no genuine dispute as to any material fact and movant is entitled to judgment as a matter of law

102
Q

How can a party show there is no genuine dispute of fact?

A
  • cite materials in the record that establish absence of dispute
  • show that materials cited do not establish presence of dispute
103
Q

Fundamental difference between 12b6 and summary judgment

A

In 12b6, you assume all the alleged facts are true. In SJ, you do not.

104
Q

Approaches to meeting defendant’s burden under 56a (SJ)

A
  • 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
Q

Phases of trial

A

jury selection, opening statements, presentation of evidence, closing argument, jury instructions, jury deliberation & verdict, post-trial motions, judgment

106
Q

When can a party move for JMOL (pre-jury verdict)?

A

As soon as a party is fully heard on a matter

107
Q

Standard for JMOL

A

A reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue

108
Q

Why does JMOL not violate the 7th amendment?

A

It serves as a review of a prior motion instead of a reexamination of the jury’s decision

109
Q

When can a post-verdict JMOL be filed?

A

Up to 28 days after entry of judgment or after the jury was discharged

110
Q

Lavender vs. Galloway standard

A
  • 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
Q

What is the standard for a new trial?

A

When the verdict is against the clear weight of evidence

112
Q

What standard does the court of appeals apply when reviewing a district court decision denying a new trial?

A

There must be a clear abuse of discretion

113
Q

When can motion for new trial be filed?

A

Must be filed no later than 28 days after judgment

114
Q

Can you move for a new trial and JMOL simultaneously?

A

Yes

115
Q

Court denies JMOL; grants new trial

A
  • no appeal because there is no final decision

- new trial happens

116
Q

Court grants JMOL; conditionally grants new trial

A
  • 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
Q

Court grants JMOL; conditionally denies new trial

A
  • losing party can move for a new trial

- if circuit court reverses the JMOL, the case proceeds as the circuit court orders

118
Q

Court denies JMOL; denies new trial

A
  • 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.

Civil Procedure (2 decks)

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