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2 - Federal Civil Procedure > Full Set > Flashcards

Full Set Flashcards

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Civil Procedure 1L flashcards
1
Q

subject matter jur basics

A

can’t be waived
objection at any time by anyone

federal question or diversity

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2
Q

personal jur

A

Has particular basis for exercising personal j over an out-of-state D been authorized by statute or by rule of court?
Is the particular basis for exercising personal j permitted by the Constitution (minimum contact - purposeful availment)

in personam
in rem
quasi in rem

can be waived

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3
Q

venue

A

district where any D resides if all in the same state;
where claim arose;
where property subject to action is located

if neither - then any Fed

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4
Q

federal question

A

obvi

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5
Q

diversity jur

A
  1. CITIZENSHIP (not availment) different states (complete, all Ps from all Ds)
  2. > 75,000 from 1 P (can be aggregated thru multiple claims, only needs to be one P for supplemental jur, andcounterclaims don’t need to be that much)
  3. at time filed
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6
Q

minimal diversity

A 
at least one P different than D
then, federal interpleader act or class actions >5,000,00 or interstate mass torts
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7
Q

corporation’s citizenship

A

HQ/principle place of business

place of incorporation

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8
Q

supplemental jur - fed q

A

same transactional occurrence
discretionary

same requirements for pendent JX over claims involving joinder or intervention of additional parties

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9
Q

supplemental jur - diversity

A

same transactional occurrence

  • compulsory counterclaims (one that arrises out of the same occurrence, does not need to meet >75k)
  • permissive counterclaim must independently reach >75,000
  • cross-claims (doesn’t need to reach min $)
  • multiple P/permissive joinder (doesn’t need to reach min $, can’t violate complete diversity)
  • cross claims if same trans
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10
Q

when NO supplemental jur - diversity

A
  • impleaded 3rd parties under R14
  • claims against additional Ds under R19 and 20
  • claims by P interveanors under R24
  • claims by Ps involuntarily joined under R19
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11
Q

removal

A

state –> fed

only if could have orig been brought in fed

removal based on diversity needs to meet complete at original filing and at time of notice of removal; 75k

filed in fed and copy to state court

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12
Q

transfer

A

fed –> fed

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13
Q

fed q requirements

A
  1. well-pleaded complaint

2. fed claim

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14
Q

improper removal

A

P can file petition for remand

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15
Q

in personam personal j

A

physical presence
domicile
consent
corporations (doing business, incorporated)

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16
Q

specific in personam j

A

long-arm long list of acts and omissions and claims

basically, almost everything is covered by a state’s long-arm statute, so long as the claim arises out of the transaction involving that state

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17
Q

Choice of Law: The Erie Doctrine

In general

A
  1. FQ—federal substantive and procedural law controls

2. DJ—state substantive law and applicable federal procedural law

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18
Q

special pleading required for

A

fraud and special damages

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19
Q

Twombly

A

complaint allegations must be sufficiently plausible

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20
Q

defense motions against the complaint

A

MTD
MJ on the pleadings
M for more definite statement
M to strike

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21
Q

answer

3 things to memorize

A

admission/denial
affirmative defenses
timing

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22
Q

reply

A

P’s answer to a counterclaim

must be made w/in 21 days of D’s answer or order to reply

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23
Q

amendments to pleadings

A

once at any time w/in 21 days of service or w/ 21 days of D’s response/12(b)

during/after trial okay if conforms to evidence and opposing party can prepare

leave of court (freely granted to amend the pleading if no undue justice to opposing party)

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24
Q

certifying pleadings

A

pleadings, docs, motions, discovery requests

appropriate legal and; factual basis
best of attorney’s knowledge after reasonable inquiry
no improper purpose
warranted by existing law or by non-frivolous argument for change in law
factual allegations have evidentiary support

R11 sanctions

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25
Q

permissive joinder of parties

A

joinder by Ps
any number of them if out of same trans (same with Ds)
still need complete diversity
and need independ 75k

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26
Q

compulsory joinder of parties

A 
joinder by Ds
necessary party - someone whose participation in lawsuit is necessary for just adj
must be joined if possible 
still need complete diversity
ct can assert personal j (bulge)

otherwise court may decide to dismiss

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27
Q

necessary party

A
  1. absent that party complete relief cannot be accorded to existing parties
  2. necessary party has an interest in the lit, which will be 3. impeded if the lit goes forward w/o that party
    there is a substantial risk of double or inconsistent liabiltiy
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28
Q

intervention as of right

A

may be had when outsider claims an interest in the subject matter of the lawsuit that as practical matter may be compromised by the disposition of the pending action

reasonable promptness
no supplemental and can’t destroy complete diversity

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29
Q

permissive intervention

A

may be allowed whenever there is a common question of law or fact between the intervenor’s claim and the main claim

reasonable promptness
no supplemental and can’t destroy complete diversity

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30
Q

general interpleader info

A

policy - resolve competing claims on same property and avoid inconsistent obligations or multiple claims

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31
Q

stake

A

property at issue

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32
Q

stakeholder

A

person holding property

stakeholder-plaintiff is possible

needs to be diverse from claimants

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33
Q

claimant

A

person claiming the property

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34
Q

rule interpleader

A

FRCP22 - remedy available in suit otherwise within the court’s jur

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35
Q

statutory interpleader

A

Federal Interpleader Act
special features:

  • more than $500
  • nation wide service of process
  • venue proper where any claimant resides
  • SMJ based on minimal diversity
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36
Q

compulsory counterclaim

A
  • lost if not pleaded
  • same transaction
  • no independent j required - if SMJ over main claim, then SMJ over this claim
  • filing tolls SOL for main claim and compulsory claims
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37
Q

permissive counterclaims

A
  • now or later
  • not same trans
  • requires its own SMJ
  • barred by SOL, you’re SOL
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38
Q

cross-claims

A

need to arise out of same trans

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39
Q

impleading party names

A

impleaded party = 3rd party D

original D = D and 3rd party P

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40
Q

impleading SMJ

A

by definition court will have SupJ so don’t need independent SMJ from original claim, but if original claim is based only on DJ, claims by P against 3rd party D must meet DJ or FQ JX requirements on its own

PJ - may be served w/in 100 mi of courthouse, needs PJ

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41
Q

Class action elements

A
  1. numerousness
  2. common question of law or fact
  3. typicality of claims by class reps
  4. adequacy by the rep’s lawyer
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42
Q

dismissing class action

A

requires judicial approval

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43
Q

diversity in class action

A

at least one named P must be diverse from D and has a claim of >75k

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44
Q

Class Action Fairness Act 2005

A

100+ members w/ >$5,000,000 (aggregate) at stake + minimal diversity

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45
Q 
mandatory disclosure (discovery)
types
A
  1. initial disclosures (names and addresses, docs, damages, insurance agreements)
  2. expert witnesses
  3. pretrial disclosures (30 days before trial - any objections w/in 14 days after disclosure or waived, unless good cause)
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46
Q

scope of discover

A

relevance as general rule, not limited to admissibility

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47
Q

exceptions to discovery

A

see evidence cards

48
Q

6 discovery devices

A
  1. oral deposition
  2. written documents
  3. interrogatories
  4. discovery and inspection of documents and land
  5. physical and mental examination
  6. request for admission
49
Q

oral deposition (discovery mechanism)

A

oral and under oath
10 depos, unless ct says more
1 day of 7 hours
any notice for a party, subpoena for others
anytime after party has made mandatory disclosures

50
Q

written docs (discovery mechanism)

A

delivered to officer who asks orally written down before RARE

51
Q

interrogatories (discovery mechanism)

A

questions in writing to be answered under oath
only against a party
limited to 25
respond w/in 30 days

52
Q

discovery and inspection of documents and land (discovery mechanism)

A

request to produce and permit inspection
applies only to parties
described with particularity
response due in 30 days

53
Q

physical and mental examination (discovery mechanism)

A

only against a party
permitted for condition in controversy
only for good cause

54
Q

request for admission (discovery mechanism)

A

used to streamline lawsuit
failure to respond within 30 days is admission
certification
no preclusive effect (only applies in THIS, not future, lawsuit)

55
Q

pretrial conference

A
  • trial attorneys
  • file pretrial statement: claims and defenses, itemized damages, requests for stipulations and admissions, witnesses, exhibits
  • failure means attorney pays fees of other attorneys
56
Q

termination w/o trial devices

A
  1. Judgment on the pleadings
  2. default judgment
  3. voluntary dismissal
  4. involuntary dismissal
  5. summary judgment
57
Q

trial by jury

A
  • 7th am
  • equity issues and specific performance do NOT require
  • damages triggers right
  • demand 14 days after service of answer
  • 3 premptory
  • bench trial – finds of fact and conclusions of law
58
Q

JMOL

A
  • moving for SJ after trial has begun (anytime before giving to jury)
  • standard: viewing ev in light most favorable to opposing party, cannot support contrary verdict
  • credibility of witness=question of fact, no JMOL
59
Q

renewed motion for judgment as a mater of law (JNOV)

A

if court doesn’t grant directed verdict, movant can file a JNOV no later than 28 days after entry of trial judgment

  • at close of all ev may be renewed after verdict
  • ev cannot support jury’s verdict and moving party is therefore entitled to JMOL
  • condition precedent to post-verdict motion that the JMOL had been made at close of all ev
  • usu made w/ motion for new trial
60
Q

voluntary dismissal w/o prej

A

termination w/o trial - P has right to one at any time prior to D serving answer for MSJ

61
Q

involuntary dismissal w/ prej

A

termination w/o trial - lack of Jur, improper venue, failure to join necessary party don’t get prej ALL others due

judgment on the merits
appellate review = abuse of discretion

62
Q

motion for new trial

A
  • often made w/ renewed motion for JMOL, but different
  • grounds for new trial:
    1. errors make judgment unfair
    2. newly discovered ev
    3. prejudicial misconduct by lawyer, party, or juror
    4. excessive verdict
  • court must specific REASON OF LAW for new trial, reviewable only on abuse of discretion
63
Q

appeals

A
  • only from final judgments

- file w/in 30 days of judgment

64
Q

interlocutory orders

A
  1. immediately appealable as a right - injunctions, or property right affected
  2. discretionary interlocutory appeal - both trial and appellate court must agree (controlling Q of law and immediate appeal may advance materially)
  3. collateral order doctrine (separable and collateral to main suit and too important to wait like motion to dismiss forum non conveins)
  4. mandamus - abuse of authority
  5. class actions - certification orders
65
Q

standards of review

A

matters of law - de novo

matters of fact -
jury - affirmed if supported by substantial ev

judge findings of fact - affirmed unless clearly erroneous
judge conclusions of law - de novo

66
Q

full faith and credit

A

judgments in courts of other states, assuming jurisdiction

67
Q

claim preclusion

A
  1. FJ on merits
  2. same parties or their successors in interest
  3. same claim or COA
68
Q

issue preclusions`

A
  1. issue of fact must arise in two suits
  2. must have been actually and necessarily decided in first suit
  3. party to be precluded must have been a party to the first suit
69
Q

when new suit w/ similar facts, at least one same party as yourself:

A

is the claim in the second suit precluded by the prior adjudication?
if not, is the issue in the second suit precluded by prior adjudication?

70
Q

Well-pleaded complaint Rule

A

FQ Subject Matter Jur - exists only when federal issue is presented on the face of the complaint (P’s c/a—not defenses, answers or counterclaims)

71
Q

partnership jur

A

citizenship of partners general and limited

72
Q

amount in controversy requirement for diversity jur

A

> $75k
good faith
Ps can aggregate claims w/ common/undivided interest (counterclaims generally not counted in determining whether P has met amount)

73
Q

counter claims and; diversity jur

A

permissive counterclaim must meet jurisdictional amt requirement and compulsory counterclaim need not

74
Q

supplemental jur diversity

permissive joinder

A

addition of the party asserting additional claim cannot violate complete diversity rule (and not required to satisfy jurisdictional amount)

75
Q

supplemental jur diversity

Counterclaims

A

must be answered within 21 days of service!

compulsory counterclaims need not satisfy jurisdictional amount, but permissive counterclaims must satisfy both DJ requirements

76
Q

supplemental jur diversity

Cross-claims

A

must be answered within 21 days of service!

okay if they arise out of same transaction/occurrence as long as court has SMJ (and do not need to satisfy either DJ requirement)

77
Q

Notice of Motional for Removal
timing
dealing w/ multiple Ds

A

D must file w.in 30 days after receipt of service of original pleading

only Ds against whom Fclaim is filed must consent/join in removal

cannot occur more than one year after action is commenced (unless P acted in bad faith)

78
Q

In rem jur and

process requirements

A

gives court authority to determine issues concerning rights to real/personal property

proceedings against property must still satisfy due-process requirements for PJ and property must generally be present w/in the forum state

79
Q

Quasi in rem and

process requirements

A

determines only the interests of the parties to the action regarding property located in forum state (e.g. lien foreclosure or quiet title action), and not personally binding against D

if disputes are unrelated to ownership of property and no close relationship is formed, in addition to having property located in forum state, MC must be shown between D and forum state

80
Q

Forum non conveniens

A

Federal—only used when forum that is deemed most appropriate for the action is state/foreign court

81
Q

Choice of Law: The Erie Doctrine
Substance or procedure—Determination Is Unclear

Valid federal statute on point when state and federal laws conflict

A

apply federal law

82
Q

Choice of Law: The Erie Doctrine
Substance or procedure—Determination Is Unclear

No federal rule on point

A

apply state law if failure to do so would lead to different outcomes in state and federal court

83
Q

Choice of Law: The Erie Doctrine
Substance or procedure—Determination Is Unclear

Substantive law

A

elements of claim or defense, statute of limitations (S/L) and tolling provisions and burden of proof

84
Q

Choice of Law: The Erie Doctrine
Substance or procedure—Determination Is Unclear

Procedural law

A

judge/jury allocation, assessment of attorney’s fees, equitable/legal determination

85
Q

Choice of Law: The Erie Doctrine
State conflict-of-law rules—Federal Court Must Apply State’s Conflict-Of-Law Rules

DJ

A

district court bound by conflict-of-laws rules of state in which the district court is located, but only to extent that state’s rules are valid under Full Faith and Credit and Due Process Clause

86
Q

Choice of Law: The Erie Doctrine
State conflict-of-law rules—Federal Court Must Apply State’s Conflict-Of-Law Rules

Procedural or substantive law

A

states apply their own procedural laws and sometimes apply the substantive law of a foreign JX

87
Q

timing of service of process

A

w/in 120 days after filing of complaint

88
Q

waiver of service of process

A

request in writing and addressed to individual D

must give at least 30 days

extends time to serve answer from 21 days to 60 days

89
Q

Motions against the complaint
timing
types

A

w/in 21 Days of Service
12(b)
12(b)(6)

90
Q

12(b) MTD

A

w/in 21 Days of Service
“failure to state a claim upon which relief can be granted”

(can be raised in any pleading, motion for judgment on pleadings, or at trial)

91
Q

12(b)(6) MTD

general standards

A

21 Days of Service

dismissed if it fails to assert legal theory of recovery cognizable at law or allege facts sufficient to support cognizable claim

court treats well-pleaded facts as true, resolves doubts/inferences in P’s favor, and views pleading in light most favorable to P

reasonable expectation that discovery will reveal evidence of necessary element

92
Q

12(b)(6)

what can the court consider?
2 step process?

A

only allegations and attached exhibits in the complaint

  1. Identify and reject legal conclusions unsupported by factual allegations
  2. Assume truth/veracity of well-pleaded facts and include context specific analysis that draws on court’s judicial experience and common sense to determine if allegations plausibly give rise to relief
93
Q

Motion for judgment on the pleadings 12(c)

A

just after answer filed (no #)

allows court to dispose of a case when material facts are not in dispute and judgment on merits can be achieved based on content of pleadings

94
Q

Motion for more definite statement

A

responding party may move for more definite statement if claim for relief is so vague or ambiguous that party cannot reasonably draft responsive pleading

95
Q

motion to strike

A

when pleading contains insufficient defense, or redundant, immaterial, impertinent or scandalous material – court may order such defense or material stricken

96
Q

answer to complaint must include

A

admission/denial of P’s allegations OR plead lack of sufficient knowledge

D must assert affirmative defenses or they’ll be waived

97
Q

answer timing is dependent on whether D files an MTD

A

No - 21 days after service (or 60 if waived service)

Yes - no filing while MTD is pending, and then if denied 14 days after court’s action denying to answer

98
Q 
relation back (an amendment)
new claim
A

back to date of orig. plea. if claim/defense arose out of same trans

99
Q 
relation back (an amendment)
new party
A

relates back

100
Q

time to respond to an amendment

A

14 days after service of amended pleading (or time left on original pleading, i.e.,waiver - if applicable)

101
Q

intervention requires
time?
DJ or SMJ?

A

timeliness (court will consider)

and SMJ

102
Q

fed rule P interpleader

A

persons with claims that may expose P to multiple liability may be joined as Ds and required to interplead claims though they lack common origin or are adverse and independent rather than identical or P denies liability

103
Q

fed rule D interpleader

A

exposed to similar liability may seek interpleader through a cross-claim or counterclaim

104
Q

impleader timing

A

can be asserted any time after complaint is filed, but 3rd party P must get court permission if filed more than 14 days after service of original answer

105
Q

Three situations when class can be certified:

A
  1. Risk of prejudice
  2. Final equitable relief
  3. Common legal/factual questions
106
Q

class action certified by Common legal/factual questions

A

must predominate over questions affecting individual members and class action is superior method for bringing about fair and efficient adjudication of controversy

107
Q

class action certified by Final equitable relief

A

equitable relief based upon a shared general claim must be the primary relief sought

108
Q

class action certified by Risk of prejudice

A

separate actions would create risk of class opponent subject to inconsistent adjudications or impaired interests of class members

109
Q

Mandatory Disclosure

1. Initial disclosures

A

subject to certain exceptions, must disclose information regarding individuals having discoverable information, documents supporting claims/defenses, computation and backup of damages, or relevant insurance agreement for satisfying judgment

Standard—information reasonably available, not excused for not fully investigating case, challenges to insufficiency of another party’s disclosures, or because another party failed to disclose

w/in 14 days of discovery conference

110
Q

Mandatory Disclosure

2. Expert testimony

A

ID and produce expert report subject to certain requirements (only those testifying)

at least 90 days before trial or 30 days after disclosure of opposing party’s expert evidence on same subject matter

111
Q

Mandatory Disclosure

3. Pretrial (other than for impeachment)

A

witness list by testimony or deposition, and documents and exhibits

at least 30 days before trial

within 14 days after disclosures are made or else waived unless excused by court for good cause or pursuant to relevance rules of the FRE

112
Q

responding to discovery requests

A

30 days!

113
Q

Enforcement

2 ways

A
  1. Motion to compel—party can move to compel disclosure or discovery against party failing to make automatic disclosures, or to respond to discovery requests (including evasive or incomplete disclosure)
  2. Sanctions—if party fails to obey a court order regarding discovery, court may impose sanctions subject to the abuse of discretion standard
114
Q

summary judgment filed

A

30 days after close of discovery

115
Q

default judgment

A

(when party fails to defend)

116
Q

voluntary dismissal

A

(can be filed w/out prejudice (unless same claim dismissed by P in prior action) any time before opposing party serves answer, motion for summary judgment or dismissal

117
Q

involuntary dismissal

A

(when P fails to prosecute or comply with the rules of civil procedure or court order, D can move to dismiss, which if granted is with prejudice and operates as an adjudication on the merits)

2 - Federal Civil Procedure (4 decks)

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