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mbe approach Flashcards

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Civil Procedure 1L flashcards
1
Q

what is PJ?

A

the ability of the court to exercise jursidiction over a particular defendant or item of property

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2
Q

what are the two componenents of PJ?

A
  1. constitututional
    - comports with DP
    - minimum contacts
  2. statute (long arm statute)
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3
Q

two types of PJ:

A
  1. specific
    - claim must be related to D’s contacts in forum state
  2. general
    - D is at home in the jursidiction
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4
Q

PJ constitutional component?

A

Modern DP standard:

  1. contact
    - D must have minimum contacts with the forum such that the exercise of jursidictioun would be fair and R. the D must have purposefully availed herself of the privilige of conducting activity in the forum state. the D also must know or R anticipate that her activities would make it foreseeable that she be “haled into court”
  2. relatedness
    - claim must be related ot the D’s contacts with the forum
    - OR, D is “at home” in the juris, i.e. general jursidiction
  3. fairness
    - exercise of jursidiction CN offend the “traditional notiions of fair play and substantial justice”
    - - D the claim arise from the D’s contacts with the forum?
    - – convenience to D?
    - - does state have a legitimate interest in providing redress for its resident
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5
Q

what does diversity jurisdiction require?

A
  1. complete diversity - ALL plaintiffs diverse from ALL Defendants … no match across the V!
  2. AIC = $75K, exclusive of interests and costs
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6
Q

When must diversity exist?

A

when the action commenced

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7
Q

citizenships of corporation:

A

every US state and foreign country in which it is incorporated and the one US state or foreign country in which it has its PPB, i.e. nerve center, i.e. where high level officers direct, control and coordinate activities

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8
Q

what is the test for a court to exercise supplemental jursidiction?

A

claim MN satisfy other tests, but the claim must arise from a common nucleus of operative facts as the claim that invoked original federal SMJ

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9
Q

does a joinder or subsequent addition of parties need to satisfy SMJ?

A

yes

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10
Q

does a compulsory counterclaim need to meet the jursidictional amount re: diversity?

A

no, as long as its a compulsory counterclaim – court may hear it under supplemental jursidiction. however, permissive counterclaim (one arising out of a COMPLETELY UNRELATED transaction) must have an independent jursidictional basis, and thus must meet the jursidictional amount req’d

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11
Q

what is the erie doctrine in simplest terms?

A

federal court IN A DIVERSITY CASE will apply its own procedural law, but must apply the substntive law of the state in which it is sitting

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12
Q

erie doctrine re: federal rules/Civ Pro?

A

if there is a federal rule on point, and it’s valid, it applies

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13
Q

if nothing on point, then is the issue….

A

substantive or procedural?

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14
Q

what issues are clearly substantive for erie purposes?

A
  1. SOL
  2. rules for tolling statutes of limitations
  3. choice of law ruels
  4. elements of a claim or defense
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15
Q

what does the court do if the issue is not clearly one or the other re: erie?

A

applies:

  1. outcome determinitive test (if issue substantively or substantially affects the outcome)
  2. balance of interest test (if state has greater interest, then substantive)
  3. forum shopping deterrence (if failing to apply state law would increase litigation in federal court, the issue is substantive)
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16
Q

re: FQJ, where must the FQ appear?

A

in the Plaintiff’s complaint

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17
Q

what are the exclusive federal jurisidctions re: proceedings?

A
  1. bankruptcy
  2. patent and copright
  3. US is a party
  4. foreign states
  5. postal matters
  6. IRS
  7. SEC
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18
Q

what is the difference b/t SMJ and venue?

A
  • SMJ is the power of the court to adjudicate the matter before it
    2. venue relates to the proper district in which to bring the action
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19
Q

where is venue proper?

A
  1. a judicial district where any defednatn resides, if all defendant reside in teh same state
  2. a judicial distrinct in which a substantial part of the events or omissions giving rise to the claim occurrred, or a substantial part of property that is the subject of the action is situated
  3. if there is no district anywhere in the US that satisfies 1 or 2, then any district in which a D is subject to PJ
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20
Q

residence re: venue for individuals and corps?

A
  1. district wehre domiciled

2. any judicial district where it would also be subject to PJ

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21
Q

can venue be waived?

A

yes

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22
Q

what are the 2 situations in which a state case may be removed to federal court?

A
  1. the case must have originally been filed in a federal court (FQJ or diversity); and
  2. for cases removed on the basis of diversity, no D is a citizen the state wehre the action is filed
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23
Q

who can remove?

A

only defendants

24
Q

where does venue lie, geographically?

A

in the federal district court “embracing the place where such state action is pending”

25
Q

does dismissal of a nondiverse party allow removal?

A

yes

26
Q

if there’s a bunch of state law claims, and one federal law claim, can that one federal law claim be removed to fed court?

A

yes

27
Q

what are the limitations on removal in diversity of citizenship cases?

A

defendant is a citizen of the forum state and one year rule (more than one year after action commenced)

28
Q

who may serve?

A

a person who is at least 18 y/o and is N a party to the action

29
Q

time limit for service?

A

within 90 days of filing the complaint, must be extended by court for good cause

30
Q

how service is made re: individual:

A

an individual may be served by personal service, service left at the person’s usual place of abode iwth one of suitable age and discretion, or service upon an authorized agent of the D

31
Q

how may corporations be served?

A

serving an officer, a managing or general agent, or an authorized agent of the corporation

32
Q

how else may service be made?

A

by following the state rules in which the federal court sits or in which service is to be made

33
Q

counting time, does the day the event occur count?

A

no, it is exclued

34
Q

what must a complaint state?

A
  1. grounds of federla jursidiction
  2. a short statement of the claim showing that the pleader is entitled ot relief
  3. demand for judgement of relief
35
Q

what defenses may be raised in the motion to dismiss?

A
  1. lck of SMJ
  2. lack of PJ
  3. improper venue
  4. insuff of process
  5. insuff of service of process
  6. failure to state a claim
  7. failure to join an indispensable party

(2-5) must be done the first time D files a motion or answer, whichever is first

36
Q

what must an answer contain?

A

a specifical denail or admission of each averment of the coplaint or a general denial

37
Q

time limit if no pre-answer motion?

A

21 days, unless service waived, then 60

38
Q

compulsory counterclaiM?

A

arising from same t/o, fed court has supplemental jursidiction if no FQJ or diversity

39
Q

permissive counterclaim?

A

any other claim if it meets the jursidictional requirements of federal court

40
Q

rule 11?

A

certifications by atty upon presenting paper to court.

  1. the paper is not presented for any improper purpose,
  2. the legal contentions are warranted by existing law or a nonfrivolous argument fo rmodification of existing law;
  3. the allegations and iether have or are likely to have evidentiary support; and
  4. denials of factual contentions are warranted on the evidence or, if specified, and are R baed ona lack of info and belief
41
Q

what are the types of joinders?

A

compulsory joinder of parties, permissive joinder of parties, joinder of claims,

42
Q

what are the 3 questions of compulsory joinder?

A
  1. shoudl the absentee be joined?
  2. can the absentee be joined?
    if the absentee CN be joined, should the action proceed?
43
Q

when should an absentee be joined?

A

if complete relief cannot be accorded among the other parties ot the lawsuit or the absentee has such an interest in the subject matter that decision in her absence will either impair or impede his ability to protect the interest/create a substatantial risk of incurring multiple or inconsistent obligations

44
Q

when can an absentee be joined?

A

if the court has PJ over the absentee and neither SMJ nor venue would be destroyed, the party MUST be joined. if the party CN be joined, the next step is to determine if the actions should proceed.

45
Q

should the action proceed w/o the absnetee?

A

if the absentee CN be joined, the court should look to (1) the extent of prejudice ot the absentee, 2. the extent to which such prejudice can be mitigated, 3. the adequacy of a judgemented rendered w/o the asentee, 4. whether the party will have an adequate remedy in another forum if the case is dismissed for nonjoinder

46
Q

when is permissive joinder applicable?

A

parties may join as palintiffs or defendants whenever (1) some claim is made by each P against each D relating to or arising out of same t/o; and (2) there is a question of fact or law common to all the parties

47
Q

joinder of claims?

A

a p can join any number and type of claims against a d

48
Q

what are the 2 grounds for interpleaders?

A
  1. rule 22: requ’s (1) complete diversity b/t stakeholder and all adverse claimants and in excess of $75K at issue, or (2) a federal question claim
  2. section 1335: req’s only diversity b’t any 2 contending claimants and $500 at issue. service may be nationwide and venue is proper where any claimant resides.
49
Q

cross claims?

A

must arise out of same t/o, automatically w/i supplemental jursidiction if comes out of same t/o

50
Q

what types of disclosures are req’d?

A
  1. initial disclosures
  2. expert testimony
  3. pretrial disclosures
51
Q

initial disclosures?

A

without waiting for a discovery request, the other party must provide:

  1. names, addresses, and telephone numbers of individuals likely to have discoverable information
  2. copies or descriptions of documents that the disclosing party is going to use to support their claims
  3. computation of damaged and materials on which computation is based
  4. copies of insurance agmts which an insurarer might be liable
    * **14 days after discovery conference
52
Q

pretrial disclosures?

A
  1. witnesses she expects to call at trial
  2. witnesses she will call if the need arises
  3. witnesses whose testimony will be presented by means of depo and a transcript
  4. list of dox or exhibits

***at least 30 days before trial needs to be disclosed

53
Q

scope of discovery?

A

discovery may be had of any nonpriviliged matter that is relevant to any party’s claim or defense and proprotional to the needs of the case, considering:

  • importance of issues
  • AIC
  • parties’ relative access to information
  • parties’ resources
54
Q

Summary judgment?

A
  • from the pleadings, affidavits, and discovery materials on file,
  • it appears no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law
  • may file at any time until 30 days after close of discovery
55
Q

judgment as a matter of law

A

a reaosnable jury would N have a legally sufficient basis to find for the nonmmoving party; prereq for renewed motion of JMOL

56
Q

renewed JMOL time line?

A

can be filed up to 28 days after entry of judgment

57
Q

motion for new trial?

A

no later than 28 dyas after judgment, may be granted due to error in a trial or b/c the verdict is against the weight of the evidence

civil procedure (2 decks)

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