Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

MBE > FRCP + CA CP > Flashcards

FRCP + CA CP Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

PJ

A

Authority over parties

Statutory (applicable law) + Constitutional (MC)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Traditional Basis for PJ

A

Consents, Domiciled in FS, physically present when served in FS

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

In Personam

A

Over Persons

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

In Rem

A

Over property disputes of prop located in state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Quasi In rem

A

No PJ but prop within state so can decided

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Statutory Limitation on PJ

A

Most states grant where: SoP in state, Domiciled in state, Consent. + LAS

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

LAS

A

Gen– to the limits of the const (Ca)

Spec- specifies when ct can exercise

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Constitutional Basis for PJ

A

MC (PA + FS) + FP and Substantial Justice

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

MC

A

Purpose Availment – avail of FS laws

FS- could fs being haled into ct

Fairness Factors (if spec)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Fairness Factors

A

Burden on D’s/W

State interest

P interest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

General PJ

A

S&C - at home

can be sued in forum for any claim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Spec PJ

A

claim related to action on forum

can sue on that claim only in forum

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

SMJ

A

FQ OR CD

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

FQ

A

Arising under WPC

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

CD

A

CD rule + AIC

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

CD

A

Person– Phys present and intent to remain

Corp - PPB and ALL INC

Unincorp- all members

Minors/etc- domicile not rep

Alienage okay but no A v A

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

AIC

A

Whatever P claims in GF

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

AIC Aggregation

A

All Ps claims against one D

Joint t/f

Two ps/undiv int (if div- SJ)

(no agg of counterclaim)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

AIC Equitable relief

A

P VP– will this be worth more than 75K

D VP– will this cost me more than 75K

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

SMJ Exceptions

A

Divorce, alimony, CS, Probate of estate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

CA SMJ

A

Limited +$25

Unlimited = $25K

Small claims – less than 10K per person and less than 5K bus

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Supplemental JX

A

Same CNOF

ct still has discr if state laws predom/complex or fed claim dismissed early

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Removal

A

D ONLY + ALL Ds must agree

State → Fed

where could have been brought/ no later than 20 days after service of first removable doc

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Removal Exceptions

A

In state rule - D cannot remove if P filed in his home/domiciled state (any D citz of forum state)

no rem more than 1 year after filed

(do not apply if FQ)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Remand

A

ONLY P

Fed → state bc removal was improper

30 days of removal (no limit if no SMJ)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Erie

State substantive law

A

Use State substantive

Always sub = SOL, elem of c/d, CoL rules, SoL tolling rules

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Erie

A

Valid fed law? → apply

No → use tests

Outcome determinative

balance of interests

forum shopping avoidance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Venue

A

Proper where claim arose or property is located

Where any D resides

Fallback prov– no D resides = any district where D subject to PJ

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Venue

C - where claim arose

A

K - entered/perf

PI/WFD- injury

Local action - prop

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Venue

CA - where claim arose

A

K - entered/perf

PI/WFD- injury

Local action - prop

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Venue Transfer

A

Any party/ct has discretion

OG Proper = transf in int of justice (public vs private)

OG Improper = transfer to proper venue or dismiss

(parties can waive improper)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Venue

OG Proper

A

Fed– another ct where could have been filed OR all parties consent (+PJ/SMJ)

CA- any time at judges’s disc– to where int/conv would be served

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Venue

OG Not Proper

A

Fed– dismiss/transfer

CA– transfer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

FNC

A

Other court = gravity

Fed- MAY dismiss/stay (public vs private)

CA- MAY dismiss or stay (int of justice; alt forum suitable; P&P)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

FSC

A

Allowed both Fed/CA

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Notice

A

Reas calculated under all circ to notify all parties to the action

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

SoP

A

Summons + Complaint

Within 90 days (fed)

Anywhere in FS (OOS if okay by law)

Anyone not a party to the case and + 18

Dismiss with prejudice if not met

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Methods

A

Personal

Substituted (abode)

Agent

Mail

State law methods (where fed ct sits or service effectuated)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

CA

Sub Service

A

Only if personal service cannot be completed + household member +18 / inform of contents / mail copy to party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

Business Service

A

Officer manaager/GA

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Minor/Etc Service

A

State law method in state where service to be made

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Service by Mail

A

If Service waived– gets three extra days

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Waiver of Service

A

P req D waives

D denies/fails – P use other method

D agrees– gets 60 days from date waiver sent to answer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Foreign Country service

A

Method allowed by international agreement

no agreement– as directed by US ct; or reas calc to give notice

method by FC law

method by foreign official in response to letter rogatory

PS in the FC (unless prohib)

mail sent by clerk of US ct req signed receipt (unless prohib)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

Constructive Service

A

Serve D through reg mail– if D waives formal SoP

CA– allows publication if nothing else

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

Proving SoP

A

Unless waived, process serve files report with court detailing how service made + Service processer gives affidavit

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

Reach of Service

A

Within state where fed ct sits

o/s state if state allows

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

Interlocutory Injunction

A

PI – Moving party will suffer irreparable harm w/o + likely to succeed on merits

TRO- prevent immediate, irrep harm (expires in 14 days; show you tried to give notice; imm appealable)

49
Q

Rule 11

A

All attys must certify all docs– contentions are warranted by law + factual contentions have evidentiary support

50
Q

Rule 11 Sanctions

A

Ct can issue on its own, or motion (hearing req)

51
Q

Safe Harbor Rule

A

21 days to fix disc problems before violation imposed

52
Q

Complaint

A

Fed/Notice Pleading: S&P stmt of facts = enough info to put OP on notice + demand for relief + relief sought

CA/Fact Pleading: ultimate facts to each element + demand of relief for each claim + ID parties (PI/WFD/Punitive stated specifically)

53
Q

Fed Complaint

Exceptions

A

Plead with particularity:

Fraud/mistake/spec dmgs/judgments or official docs to be relied on

54
Q

Answer

A

Respond to each allegation – Admit/Deny allegations/lack suff info to admit/deny

Assert affirmative defenses

(Must also include counterclaim if compulsory)

21 days of service of process/14 after rule 12 ruling

55
Q

Affirmative defenses- answer

A

Contrib negligence

claim preclusion

SoF

Fraud

SoL

SD

56
Q

Rule 12

A

Lack of SMJ

Lack of PJ

Improper Venue

Insuff Process (CA to quash)

Insuff SoP

Failure to state a claim (CA GD/J on pldgs)

Failure to join necessary party (FRCP any time bf; CA SD pldg uncertain)

57
Q

Motion for More Definitive Stmt

A

Complaint too vague/ambiguous + P cannot reas respond

D MUST make bf answering

CA + SD - pleading is uncertain

58
Q

Motion to Strike

A

D can MTS from complaint any redundant, immaterial, impertinent, scandalous material

CA- AntiSlapp

59
Q

Motion for Judgment on the Pleadings

A
60
Q

Counterclaim

A

D vs P (table)

Must have jx (could be sjx)

Compulsory – same t/o + req in answer or waived

Permissive - diff t/o; not req in answer

61
Q

Cross Claim

A

P vs D1 + D2 → D1 cross claim on D2

Same T/O

Never compulsory

Sjx

62
Q

Amended Pleading

Right to Amend

A

Fed -

P = 1 w/in 21 days of serv/after resp or PA motion

(ow leave of ct)

D= once not later than 21 days - answer

CA

P = once bf answer/dem filed OR after dem filed but bf hearing (ow leave of ct)

63
Q

CA GD

A

Pleading failed to state sufficient date to constitute CoA

Lacks SMJ

64
Q

CA SD

A

Uncertain pleading

Complaint unclear

Lack of legal capacity to sue

Existence of another case between P + D with same CoA

Misjoinder

Failure to plead K oral or written

Failure to file req certifications

65
Q

CA Motion to Quash

A

Special Appearance + sep from answer

either bf or concurrently with motion to strike answer

Lack of PJ; Insuff Process; Insuff SoP

66
Q

Variance

A

Ev at trial does not match what was pleaded

67
Q

Relation back

Claim

A

Fed

RB and same T/O as og pleading

68
Q

Relation Back

party

A

Fed

Amend D– RB + same t/o+ new party knew of og claim and not prej in defending + bf mistake would have been included (90 days)

CA- Doe

Og complaint timely + included alleg against Doe + P gen ignorant as to id + facts giving rise to CoA → P can sub name within 3 years

69
Q

Joinder

A

P looks to join

Joining a P = if they are willing

Joining a D = if P moves for

70
Q

Amended Pleading as a matter of course

A

within 21 days

op has 14 days to respond

71
Q

Amendment w/o rt

A

only with written consent of op + eave of court (motion)

granted if justice requires

72
Q

Permissive Joinder

A

Same T/P + Common q of law or fact + ct has jc over parties and claim

73
Q

Compulsory Joinder

NP

A

Without ct cannot grant complete relief

NP has nec legal interest that creates risk of mult oblig

NP has interest that may be impaired

74
Q

Compulsory Joinder Reqs

A

Absentee joined as NP – if PJ over + will not destroy diversity

CJ FORCES party in

75
Q

Joinder

Indispensable Parties

A

NP cannot be joined– ct asks

alt forum?

likelihood of prej to partues?

shape relief w/o?

P adeq remedy if case dismissed?

76
Q

Impleader

A

D wants to join someone who may be liable to him for all/part

PLEASE PAY

D files TP complain within 14 days of answer → Permission from ct

D’s claim must be derivative of suit (no- if TPP only liable to P and not d1)

77
Q

Intervention

A

NonParty wants to join in

Intervention LETS party in

78
Q

Intervention as of right

A

Ab’s int will be harmed if not joined and no existing party will adeq rep him

+

Ab has unconst statutory right

79
Q

Permissive Intervention

A

Court has discr where:

Ab has c/d shares common Q

Ab has const stat rt

ab = gov officer/agency and existing claim relates to o/a

(Ct should consider whether delay)

80
Q

Interpleader

A

PROPERTY holder can compel mult claimants into one suit

Statutory: on cl div from at least one other cl and AIC +$500

Rule 22: CD and AIC +$75K

81
Q

Class Action

A

CANT

82
Q

Class Action Types

A

Anti Prjudice

Inj/decl judgment

Dmgs

83
Q

CAFA

A

Gets you SMJ

any cm div of any opp party + aggreg claims +1 mil

Never for – less than 1– cb, sh claim against corp mgmt; state sec claims

84
Q

Class Action Certification

A

Ct- early practicable time

define class + appt counsel

can appeal ILA bf FJ

judgment– binding to all cm unless opt out

Settlement - ct must approve

85
Q

Discovery

A

Broader than admissible

to start →

meet and confer (at least 21 days bf SC) +

initial discl +

scheduling conf

86
Q

Discovery Scope

A

Disc if

not priv

relevant to claim

proportional to needs of case

87
Q

Mandatory Disclosures

(FRE)

A

Sources of disc info

dmgs

insurance

within 14 days M&C (joined parties/30)

88
Q

Expert Discl (FRE)

A

90 days before trial

Expert + report

89
Q

Pretrial Discl (FRE)

A

30 days before trial

detailed info about ev to be used

90
Q

CA disclosures

A

not mandatory– done by agreement + relevant SM

91
Q

Interrogatories

A

Written Q

resp- 30 days

Fed - no more than 25 w/ sub UOA

CA- 35 max unless ct permits ow

92
Q

Depos

A

Q- written/oral

party- notice; non party -subpeona

Limits- fed 10 unl ct grants more (no more than 1 7 hr day) and CA no limits

distance- fed no more than 100 miles from empl

subject to rules of ev

93
Q

RFP

A

Written request- party make docs avali

30 days after service

non party compelled via subpeona

94
Q

RFA

A

Opp party shows jury

resp- 30 days

resp party - admit/deny/lack suff knowledge of

95
Q

Physical/mental exams

A

Ct request req + condition at issue

96
Q

A/C privilege

A

Made btwn A + C

Intended to be, and was, kept conf

To facilitate legal services

97
Q

WP

A

Prepared for or in anticipation of litigation

NOT disc unless OP shows:

subst need + undue hardship to obtain on their own

98
Q

Protective Orders

A

Limits disc material

sought by party seeking to limit

highly embarrassing, trade secrets, o/s scope

STD = GC

99
Q

Vol Dismissal

Without leave of court

(FRE)

A

P gets one

before D serves answer or MSJ

without prejudice

100
Q

Vol Dismissal

With Leave of Court

(FRE)

A

Required if answer/motion has happened already

Ct has discretion

W/o prej UO stated by ct

CANNOT assert if pending counterclaim

101
Q

Default Judgment

A

D fails to plead- 21 days being served (60/waiver)

Clerk: D not resp at all; claim for $ dmgs; affidavit of sum owed; d not minor/incompetent

Judge: ^ not met/ D did respond (d may be entitled to hearing)

Recovery = demand in complaint

Set aside- if GC for 1 yr

102
Q

Summary Judgment (MSJ)

A

Burden - moving party → no gen issue of mat fact + entitled to jdgt as MOL

Shift – Non party to show if triable issue exists

Evidence– in light most favorable to non moving party

Partial allowed

103
Q

Rt to Jury

A

7th Amendment

In any pleading - within 14 days service of last pleading of triable issue (or waived)

6 min/12 max (if 6-unan)

Law + equity – jury rt does not extend to equity

104
Q

Voir Dire

A

For cause:

Fed each side unlimited; CA each party unlimited

Peremptory

Fed: 3; CA :6

+ CA crim ¾ and Crim unan

105
Q

Jury instructions

A

Parties submit at close of ev

ct informs of chosen and rejected

Raise bf jury charged

objection- make on record/away from jury (w/o ct- plain error)

106
Q

Jury Verdicts

A

Gen - decides + amt

Special - decides + factual findings submitted by Q by ct

Gen with Interrogatories - gen + spec Qs

107
Q

JMOL

(DV/FRE)

A

Before case submitted to jury

Reas jury has no reason to disagree as to result

108
Q

JMOL– JNOV (CA)

A

Same as JMOL and RJMOL– can raise without preserving through JMOL

109
Q

RJMOL

A

Only if preserved with JMOL before end of trial

same standard

28 days after entry of judgment

110
Q

Motion for New Trial

A

28 days after judgment

prejudicial error

Prejudicial misconduct

J against weight of evidence

newly disc evidence

excessive/inadeq dmgs

111
Q

Motion to Set Aside

A

Mistake/exc neglect (one year of j)

new ev not disc at trial (one year of j)

Fraud/misrep/ OP misconduct (on year of j)

J void (reas time)

J satisfied or discharged (reas time)

Any other reason justifying relief (reas time)

112
Q

Appeals

A

30 days after j

Q of Law- De novo

Q of fact - not disturbed unless jury - reas jury would not reach or nonjury + clearly erroneous

Mixed - de novo

disc matters- abuse of distrction

113
Q

FJR

A

Appeal only from FJ

Exc: Inj; certif of class action; orders involving debatable q of law

114
Q

Interlocutory Appeals

A

reviewable as of right

Inj

receivers (appt of)

patents

property

where collateral order exception apples bc too distinct from merits of case + too imp to be denied imm review + unreviewable if waited

115
Q

CP/RJ

A

Same Claim and Same Parties

FJ on Merits on claim

116
Q

IP/CE

A

Same issue

issue essential to the J and Issue actually litigated

FJ on the Merits

asserted against party to previous case

117
Q

IP Mutuality

A

Mutuality = only parties to prior litigation can assert IP

Non = privies can assert

118
Q

IP Offensive vs Defensive

A

Offensive: P to prevent D from relitigating when D lost C1 against different P (Ct will balance)

Defensive: D seeks to prevent P from relitigating when P lost in C1 against diff D

MBE (4 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions