MBE Civil Procedure Flashcards
1
Q
What is the amount-in controversy req for a case to have diversity jurisdiction?
A
The claim must exceed $75K
The value of a single plaintiff’s claims against each of multiple defendants can’t be aggregated if the claims are separate and distinct and the Ds aren’t jointly liable with respect to the claims.
Claims must be independently meet the req if unrelated
2
Q
Can you aggregate unrelated claims against the same defendant to meet the amount-in-controversy req?
A
Yes
3
Q
Can you aggregate unrelated claims against different defendants to meet the amount-in-controversy req?
A
No
4
Q
Summary Judgment
A
The movant must show:
> there is no genuine dispute of material facts
> the movant is entitled to judgment as a matter of law
5
Q
For subject matter jurisdiction, is diversity determined at the time of action or time of filing?
A
The parties need to live in different states at the time of filing
6
Q
how do you get subject matter jurisdiction?
A
(1) Federal question
> Ps claim based on fed law
(2) Diversity
> div of citizenship; aka completely diff sides of v.
> exceeds 75K
7
Q
At what time must diversity exist?
A
when the complaint is filed
8
Q
can you sue multiple Ds to reach the amount in controversy of 75K
A
No; you cant aggregate claims against diff defendants & cant join Ps either
but you CAN aggregate claims against 1 defendant
(each singular P against each singular D must meet the req) (unless Ds are jointly liable then ok)
9
Q
diversity
A
(1) case between a P and D that are from different states (or state and foreign country)
(2) AIC exceeds 75K
10
Q
minimal diversity
A
at least 1 P and 1 D are from diff states
11
Q
how is citizenship of an individual determined for diversity?
A
they are a citizen of the state/country they are domiciled in; meaning that is their permanent residence bc they reside there + intent to remain
*u can have only 1 legal domicile
12
Q
whose citizenship is looked at if someone has a representative?
A
the citizenship of the representative controls
(except for guardianship/estates bc decedent’s domicile controls)
13
Q
where are corporations domiciled?
A
> where they’re incorporated
AND
where they have their principal place of business (the exec offices)
*remember you need complete diversity so consider EVERY state where they have citizenship
14
Q
where are Partnerships and unincorporated associations domiciled?
A
> every state where its members are citizens
so its rare for them to be in fed court
15
Q
Can you move or assign a claim just to create/destroy diversity?
A
Yes, as long as it is not a sham
(partial assignment wont destroy)
16
Q
aggregation for AIC
A
> 1 P against 1 D must satiafy amount
- you can aggregate against the same D
- cant add multiple Ds/Ps to reach AIC
17
Q
True or False:
Claims brought under the Federal Interpleader Act only require minimal diversity.
A
true; any 2 adverse claimants from diff states
18
Q
What is removal and when it is allowed?
A
> removal is moving a case from state court to federal court
(you’re getting subject matter jurisdiction)
> only allowed when the case could’ve bene brought in federal court to begin w
19
Q
Who can remove?
A
ONLY defendants can remove
> all Ds must consent to removal within 30 days of service
20
Q
Can defendants remove a case if the state case is already in their home state?
A
No; they can’t remove bc they dont need to have a fear of disadvantage
21
Q
When is removal based on diversity jurisdiction proper?
A
> complete diversity
exceeds 75K
D isn’t removing in a state where they’re a citizen of
22
Q
Max time limit for removing a case to fed court
A
1 year from the commencement of the action unless P acted in bad faith
23
Q
removal procedure
A
> notice of removal is filed in the Fed court with a copy to the state
(the filing automatically ends state court’s jurisdiction)
if P thinks its improper they can file a petition for remand and fed court will decide whether to grant/deny
24
Q
general rule of Supplemental Jurisdiction
A
A federal court with SMJ over a case can hear additional claims that on their own don’t have SMJ if all the claims constitute the “same case or controversy”
SMJ = same case or controversy
25
Supplemental Jurisdiction:
federal question cases
If a P has a federal question claim + state law claim against the same D, the fed ques can act as an anchor and the fed court MAY exercise supplemental jurisdiction over the state law claim
*applies regardless of involving the joinder of an addt'l party
26
Supplemental Jurisdiction:
diversity jurisdiction cases
> state law claims must be part of the "same case or controversy"
> Supp. jurisdiction is barred in:
- Plaintiff claims against ppl joined
- Claims by parties trying to intervene/be joined as Plaintiffs
> Supplemental claims by Defendants are allowed if they satisfy the common nucleus of operative fact test bc they didnt choose to sue
> Supplemental claims by Plaintiff ok is brought against a single D and no joinder is involved
27
can plaintiffs usually get in under supplemental jurisdiction?
no
28
Supplemental Jurisdiction:
diversity jurisdiction cases
If there is multiple Ps and a single D can they have supplemental jurisdiction if not all the Ps meet the AIC?
Yes if there are Multiple plaintiffs + single defendant the claim of one diverse plaintiff against a single defendant satisfies the jurisdictional amount
29
Supplemental jurisdiction:
Federal question
vs.
Diversity
In federal questions cases
> claims have to be related to have Supp. Juris.
In diversity cases:
(First check for the diversity requirements)
> Available if the claims are brought by defendants
> Limited if claims brought by plaintiffs
- Always ok if the case has just 1 D (bc no joinder rules)
> Compulsory claims will generally get Supp. Juris.
> Cross-claims generally ok if
- same transaction or occurrence
- brought by D
30
compulsory counterclaim
vs.
Permissive counterclaim
Compulsory:
> one that arises out of the same transaction or occurrence
as the opposing party’s claim
Permissive:
> one that does NOT arise out of the same transaction or occurrence as the main claim
(must the 2 diversity reqs)
31
true or false:
Supplemental jurisdiction works for federal question cases if the additional claims are related
true
32
Does Supplemental jurisdiction in diversity cases ever allow you to join non-diverse parties?
no; must first meet the two diversity requirements
33
What are the 3 bases for general in personam jurisdiction
(1) domicile
(2) you were physically present in a state and got served
(3) consent to being sued in that state
34
How do corporations satisfy physical presence for personal jurisdiction?
the corporation has to be "at home" in the forum state
(1) the state where its incorporated
or
(2) the state where it has its principal place of business
35
can personal jurisdiction be waived?
yes
36
when should a defendant raise lack of personal jurisdiction?
Lack of personal jurisdiction must be raised at the first opportunity, or it's waived
> in pre-answer motion, if not the answer
37
what does Due Process require between the defendant and the forum state for in personam jurisdiction?
minimum contacts between the defendant and the forum state
> was there purposeful availment?
38
General vs. Specific personal jurisdiction
GENERAL:
allows suit on any claim
SPECIFIC:
allows claims that have a connection to the forum state.
39
What do long arm statutes allow?
Every state has a long-arm statute which allows specific in personam jurisdiction; over out-of-state defendants for particular transactions involving that state.
*A an B live in FL but were driving through Georgia when they hit C. Claim is connected to the state so long arm statute can cover it and give specific jurisdiction
40
When deciding a motion to dismiss for failure to state a claim, the court engages in a two-step inquiry: (1) identify allegations that are ____________________, and (2) ask whether remaining allegations make a ______________________ case for recovery.
When deciding a motion to dismiss for failure to state a claim, the court engages in a two-step inquiry:
(1) identify allegations that are *conclusory*, and
(2) ask whether remaining allegations make a *plausible* case for recovery.
41
Is a federal court subject to the same extent of the long arm statute as the state is?
Yes; if a long arm statute doesnt grant PJ to a state court, it wouldnt to a federal court either
42
2 questions for Personal Jurisdiction analysis
(1) whether the state's long arm statute grants jursidction AND
(2) whether the 14th amend DP clause allows the court to enforce a judgement against the D
43
How many days after a complaint is filed should service be made?
90 days
44
What is an interlocutory review and when is it available?
An appeal that's taken when no final judgment has been entered is called an "interlocutory review"
It's available when (1) the trial court certifies in writing that the interlocutory involves a controlling question of law that has substantial grounds for difference of opinion and immediate appeal may speed up finishing the litigation & (2) COA agrees to take it
45
In class action settlements, is a court required to approve the settlement agreement?
Yes, the court is required to approve the settlement agreement by holding a hearing to ensure it's fair
46
Remittitur vs. Additur
Remittitur
> way of decreasing damages
> allowed in Fed court, P offered choice btween ne trial or reduced damages
Additur
> increasing damages
> NOT allowed in Fed court
47
Erie:
what law do you apply if the court is exercising federal question jurisdiction?
only fed law; no need to examine state law
48
Motions for sanctions
> can be filed after violation of Rule 11
> Must be served on a separate motion
> Can't file if the challenged mistake is withdrawn/appropriately corrected within 21 days after the service
49
Is a potential D that may be jointly and severally liable a required party?
no
50
motion for judgment on the pleadings
appropriate when the parties are only in the pleading stage
51
True or false:
Affidavits must be based on personal knowledge
true
52
Can a workers' compensation action in state court arising under state law, be removed?
No; a claim arising under a state workers' compensation law where the action was filed cant be removed
53
is the right to a jury trial in civil cases only guaranteed in federal courts?
Yes; unless states say they also allow it
54
must permissive counterclaims be supported by an independent jurisdictional basis?
yes
55
For impleader does citizenship of the third-party defendant and the amount of the claim against them matter?
no bc for diversity cases, impleader already had SMJ to begin with
56
Are cross-claims compulsory?
never
57
Permissive joinder under supplemental jurisdiction
an additional claim doesn't need to meet the 75k req for supplemental jurisdiction but when the additional claim is asserted by a plaintiff seeking to join under Rule 20 (permissive joinder), they have to meet the complete diversity req
58
In trying to get supplemental jurisdiction can a defendant be added through joinder if they have SMJ through diversity and it'd be destroyed?
No; bc we cant create a loophole to bypass diveristy
59
When are two claims considered related for purposes of supplemental jurisdiction?
When the claims arise out of a common nucleus of operative fact
60
What are the four requirements for a class action? (CANT)
(i) The class must be so numerous that joinder of all members is impracticable (NUMEROSITY);
(ii) There must be questions of law or fact that are common to the class (COMMINALITY);
- common Qs predominate over individual Qs thats why class action
(iii) The claims or defenses of the representatives must be typical of the class (TYPICALITY); and
(iv) The representatives must fairly and adequately protect the interests of the class (ADEQUACY).
61
What is the due process requirement for in personam jurisdiction?
Due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.
62
Generally, where is venue proper?
(i) where defendant resides, if all defendants reside in the same state in which the district is located; or
(ii) where a "substantial part of the events or omissions" on which the claim is based occurred, or where a "substantial part of the property" that is the subject of the action is located.
63
Under the Erie Doctrine, what law governs in a diversity action?
the substantive law of the state there court is in if there is no federal law on point
but the court will apply federal procedural law, even if a state rule or statute is in conflict.
64
What are the required elements for a complaint?
(i) A short and plain statement of establishing grounds for subject matter jurisdiction;
(ii) A short and plain statement of the claim establishing entitlement to relief; and
(iii) A demand for relief
65
What are the requirements for a plaintiff seeking a preliminary injunction?
A plaintiff seeking a preliminary injunction must establish that:
(i) He is likely to succeed on the merits;
(ii) He is likely to suffer irreparable harm in the absence of relief;
(iii) The balance of equities is in his favor; and
(iv) The injunction is in the best interest of the public.
66
When can a party amend a pleading?
(1) Amendment as of Right:
If you file a pleading (like a complaint) and the other party hasn't responded yet, you can change it once within 21 days without needing permission from the court.
(2) Amendment after a Responsive Pleading:
Once the other party (defendant) responds with their own pleading (like an answer), or if they file a specific type of motion (like a motion to dismiss under Rule 12(b)), you have 21 days from that point to amend your pleading.
*Remember that the court should freely give leave to amend a pleading when justice so requires.
67
When may a plaintiff join as a permissive joinder?
a person may join in one action as plaintiff if:
(i) They assert any right to relief arising out of the same transaction, occurrence and
(ii) Any question of law or fact common to all plaintiffs will arise in the action.
68
Under Rule 20 permissive joinder, does the plaintiff to be joined have to meet the requirements of federal subject matter jurisdiction?
not for the 75K but for diversity yes
69
When must an objection to improper venue be raised?
An objection to improper venue must be raised in:
> a pre-answer motion to dismiss or
> in the first responsive pleading
70
What are the five bases for in personam jurisdiction?
(1) Voluntary Presence
(2) Domicile
(3) Consent
(4) Long-arm statutes
(5) Attachment
71
What is a compulsory counterclaim?
one that has to be brought or its waived. It must be brought if:
(i) The claim arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim; and
(ii) The claim does not require adding another party over whom the court cannot acquire jurisdiction.
72
What are the three types of personal jurisdiction?
(1) In personam jurisdiction
(2) In rem jurisdiction
(3) Quasi-in-rem jurisdiction
73
What are the three types of mandatory disclosures?
(i) Initial disclosures at or w/in 14 days;
(ii) Disclosures of expert testimony 90 days before trial; and
(iii) Pretrial disclosures 30 days before trial.
74
In assessing whether a case can be filed in federal court, when is diversity determined?
Diversity is determined at the time the case is filed.
75
How does a party make a demand for a trial by jury?
> Any party may make a written demand for a trial by jury
> The demand can be made separately or in a pleading
> must be served within 14 days after service of the last pleading, and filed with the court within a reasonable time after service.
76
How many interrogatories may a party serve on another party?
no more than 25 written interrogatories
77
How long may a temporary restraining order remain in effect?
for only a limited number of days, but no longer than 14 days unless good cause exists or the adversary consents.
78
How much time does a party have to respond to interrogatories?
The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.
79
What three factors will a court consider when deciding to set aside a default judgment?
(i) Whether the defendant's failure to act was willful;
(ii) Whether setting the default aside would prejudice the plaintiff; and
(iii) Whether the defendant has presented a meritorious claim.
80
How long does a defendant have to respond to a complaint?
within 21 days of service of process
81
Who is responsible for serving the summons and complaint, and when must it be served?
> The plaintiff is responsible for serving the summons and complaint on the D
> Must serve within 90 days after filing the complaint.
82
How many peremptory challenges and challenges for cause does a party have?
Each party in a civil case gets 3 peremptory challenges.
Each party is entitled to an unlimited number of challenges for cause.
83
What is the rule for removal when there are multiple defendants?
All Ds who have been properly joined and served are required to consent to the removal
84
What seven defenses may be raised in a motion filed under Rule 12(b)?
(i) Lack of subject matter jurisdiction
(ii) Lack of personal jurisdiction;
(iii) Improper venue;
(iv) Insufficient process;
(v) Insufficient service of process;
(vi) Failure to state a claim upon which relief can be granted; and
(vii) Failure to join a necessary or indispensable party under Rule 19.
85
Who has the burden of proof in a claim for summary judgment?
The movant has the burden on an MSJ
If movant makes prima facie showing then burden shifts to opposing party to show genuine issue of material fact
86
Which defenses are waived unless raised in the pre-answer motion or answer?
personal jurisdiction, improper venue, insufficient process, and insufficient service of process
87
What is the standard used in deciding a motion to dismiss for failure to state a claim upon which relief can be granted?
a claim for relief can be dismissed if it either
(i) fails to assert a legal theory of recovery that is cognizable at law, or
(ii) fails to allege facts sufficient to support a cognizable claim.
88
What is removal jurisdiction and who generally has the right to remove?
> Removal moves a case filed in state court to federal court
> Only the defendant may remove.
89
What is a judgment as a matter of law, and what is the standard used in deciding these motions?
> happens after a party fully heard and at any time before case goes to the jury
> court may grant if it finds that there's insufficient evidence for a jury to reasonably find for that party.
90
What are six grounds for a court to grant a motion for a new trial?
(i) Error at trial that renders the judgment unfair;
(ii) Newly discovered evidence that existed at the time of the trial was excusably overlooked and would likely have altered the outcome of the trial;
(iii) Prejudicial misconduct of counsel, a party, the judge, or a juror;
(iv) A verdict that is against the clear weight of the evidence;
(v) A verdict that is based on false evidence; or
(vi) A verdict that is excessive or inadequate.
91
What are the two ways in which a defendant can consent to in personam jurisdiction?
1. Express consent:
D agrees to submit to the court's jurisdiction or stipulates to personal jurisdiction once an action is brought
2. Implied consent:
through conduct, such as filing a counterclaim or driving a vehicle within a state
92
What are the requirements of claim preclusion?
Claim preclusion (res judicata) requires:
(i) A valid final judgment on the merits;
(ii) Sufficiently identical causes of action; and
(iii) Sufficiently identical parties.
93
Federal courts of appeals have jurisdiction over appeals of what types of judgments?
over appeals of the final judgments of the district courts
94
For the purposes of diversity jurisdiction, how is a corporation's citizenship determined?
state where they're incorporated (can be multiple) AND the state where it has its principal place of business
95
What is the "well-pleaded complaint rule?"
the determination of federal question jurisdiction made by considering only the necessary elements of the plaintiff's cause of action
(not anticipated defenses, answers, or counterclaims)
96
Where is an individual's domicile and how is the domicile changed?
the state where the individual is present and intends to reside for an indefinite period.
Can be changed if they:
1. Establish presence in a new place; and
2. Manifest intent to remain there for an indefinite period.
97
When and how is the amount in controversy determined for diversity jurisdiction purposes?
The amount in controversy must exceed $75K exclusive of interest, costs
> It's determined at the time the action is commenced in federal court, or at the time of the removal.
98
How is a corporation's "principal place of business" determined?
the nerve center, typically, the corporate headquarters.
99
What is the purpose of a long-arm statute?
A long-arm statute authorizes personal jurisdiction over nonresidents who engage in some activity in the state or cause some action to occur within the state
A long-arm statute authorizes jurisdiction to the extent permissible under the Due Process Clause.
100
May a single plaintiff aggregate claims against multiple defendants to satisfy the amount-in-controversy requirement?
No; the claims against each defendant must be separate and distinct
*unless Ds are jointly liable to P, then P can aggregate
101
When a case is removable from the outset, how does a defendant begin the process for removal?
D must file a notice of removal with the Fed court within 30 days after receipt or service of the initial pleading or summons.
102
Typically, if a defendant is voluntarily present in the forum state and served with process there, then the court has personal jurisdiction over the defendant.
What are two exceptions?
(1) If a plaintiff fraudulently brings a defendant into the state just to serve them
(2) If a defendant is merely passing through the state to attend other judiciary proceedings
103
Reqs for removing based on:
Federal Question
Removal is only proper if it could've been brought in Fed court in the first place (by D w/in 30 days of service)
For Federal Question removal:
> The federal question has to appear on the face of the well-pleaded complaint
104
Reqs for removing based on:
Diversity
Removal is only proper if it could've been brought in Fed court in the first place (by D w/in 30 days of service)
For Diversity removal:
> $75k+
> Compete diversity
> D is NOT from the state they're removing to
105
supplemental jursidction
a claim that normally wouldn't have subject matter jurisdiction can be brought if it stems from the same case or controversy aka it arise from the same common nucleus of operative fact as the claim that does have SMJ
106
Reqs for Supplemental jurisdiction based on OG claims of:
Federal Question
> the claim w federal question will be the "anchor" claim
> applies whether or not those claims involve the joinder of an additional party
107
Reqs for Supplemental jurisdiction based on OG claims of:
Diversity Jurisdiction
> State-law claims part of the “same case or controversy” (common nucleus of
operative fact)
CANT be brought by:
> Ps against ppl made parties by rules 14, 19, 20, or 24;
> ppl trying to intervene as Ps under rule 24
> parties trying to be joined as Ps under rule 19
CAN:
> By Ds
> Ps if its a single P and single D
108
Compulsory counterclaims
> must arise out of the same transaction or occurrence
> usually brought by defendants, so may come in w/out the AIC req
109
Permissive counterclaim
> does NOT arise out of the same
transaction or occurrence as the main claim
> can only be heard by a fed court if it independently satisfies the 2 diversity reqs
110
Supplemental jurisdiction: Crossclaim reqs
> Must be from same transaction or occurrence
> Can't be asserted by a P against someone made a party under 14, 19, 20, 24
> If the crossclaim brought by D then its fine
111
2 questions for Personal Jurisdiction
(1) Has the basis for exercising PJ over an out-of-state defendant been authorized by statute/rule of court?
(2) does the assertion of personal jurisdiction comport w due process by being fair play and substantial justice?
112
ways for a court to have personal jurisdiction over someone
(1) voluntary
(2) domicile
(3) consent
(4) long-arm statute
(5) attachment of property
113
due process reqs for personal jurisdiction
satisfied if
> personal jurisdiction exists
> or if non-resident D has minimum contacts w the forum state
- min contacts through purposeful availment
- those contacts can be general or specific
> fair play and substantial justice
114
the long arm statute gives in personam jurisdiction over out-of-state defendants but ONLY for the
particular transactions involving that state.
115
3 stages of mandatory disclosures in discovery
(1) initial disclosures
(2) disclosure of expert witnesses
(3) pretrial disclosures
116
when is there specific personal jurisdiction
Specific personal jurisdiction exists when
(1) the plaintiff's claim arises from the defendant's minimum contacts with the forum state and
(2) the exercise of jurisdiction would comply with notions of fair play and substantial justice.
117
Does failure to prove service of process affect the validity of the service?
No; the plaintiff must provide proof of service of process to the court when service was properly made in the U.S. and not waived by the defendant. But a failure to prove service of process does not affect the validity of the service.
118
where is venue proper?
(1) where the D resides
(2) where a substantial part of the events happened
(3) where D is reachable/have PJ
119
what items will be waived if they're not included in the answer?
(1) admissions and denials
(2) motions that have not been waived
(3) affirmative defenses, and
(4) compulsory counterclaims
must raise in answer or Otherwise, they'll be waived.
120
what does a court consider in a motion to dismiss?
the court must
(1) treat all well-pleaded facts in the complaint as true and
(2) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant.
121
When SMJ is through diversity,
when is supplemental jurisdiction NOT permitted?
if the supplemental claim:
(1) would destroy complete diversity of citizenship
or
(2) seeks $75k or less and made is by a plaintiff (1) against parties added through joinder, intervention, or impleader or (2) seeking to join through compulsory joinder or intervention
122
who can you serve interrogatories on?
only parties not non-parties
123
When can aparty may move for judgment as a matter of law (JMOL)?
at any time before the case is submitted to the jury
124
What does a court consider for a judgment as a matter of law?
> courts views the evidence and draws all reasonable inferences in the light most favorable to the nonmovant
> ignore any evidence that's favorable to the movant that the jury is not required to believe and
> not consider the credibility of witnesses or evaluate the weight of evidence.
125
how many ppl in a jury?
A jury verdict must be unanimous and returned by a jury of at least 6 (but no more than 12) members unless the parties stipulate otherwise.
126
3 standards of appellate review
> de novo (for Qs of law)
> substantial evidence (jury verdicts) & clearly erroneous (for judge findings of fact)
> abuse of discretion (issues decided by lower courts)
127
2 types of issue preclusion (collateral estoppel)
> Mutual – where parties from the first action assert collateral estoppel in a subsequent action against other parties from the first action
> Nonmutual – where nonparties from the first action assert collateral estoppel in a subsequent action against parties from the first action
128
Can a federal court in a diversity action have supplemental jurisdiction over a permissive counterclaim under 75k?
no
129
True or false:
In a diversity case, Plaintiff can aggregate all her claims against D to meet the $75K, regardless of whether the claims are related.
true; against the same D yes
> against diff Ds No
> Ps w diff claims also no
130
does a proposed settlement of class action have to be approved by the court?
yes; a proposed settlement may be approved only after the court holds a hearing and issues findings that the settlement is fair, reasonable, and adequate.
131
what types of cases does a federal court not have subject matte jurisdiction over?
probate matters or domestic relations like divorce/alimony
132
when can a federal court exercise PJ through nationwide service of process?
only when a federal statute authorizes nationwide service of process
133
when does the "100-mile bulge rule" establishes personal jurisdiction over a party
(1) added to the suit through impleader (third-party practice) or required joinder AND (2) served with process within 100 miles of the federal court where the suit is pending.
134
When a defendant is a nonresident of the U.S. where is venue proper?
When a defendant is a nonresident of the U.S., venue is proper in any federal judicial district.
135
If D requests it/or court orders it, a jury can be polled individually to see if the verdict is reached unanimously. if a juror gives a response that would ruin a unanimous verdict, what needs to happen?
if a poll reveals that verdict is not unanimous, the court can:
> order a new trial
> order further deliberation
136
within how many days does a movant have to file a renewed motion for JMOL?
28 days JMOL
137
what type of law should federal courts apply to federal questions?
Federal courts must apply FEDERAL procedural and FEDERAL substantive law to claims arising under federal-question jurisdiction.
a claim arises under diversity jurisdiction, the court must apply FEDERAL procedural law and STATE substantive law.
138
what location/what state is looked at to check for long-arm personal jurisdction?
the forum state
139
when is a preliminary injunction not necessary
When monetary damages can adequately compensate
A federal court may grant a preliminary injunction when
(1) the movant is likely to succeed on the merits
(2) the movant is likely to suffer irreparable harm in the absence of relief
(3) the balance of equities is in the movant's favor, and
(4) the injunction is in the best interests of the public.
140
how many days after the last filed pleading does a party have to request a jury trial?
14 days
141
Interrogatories
> written questions served on another PARTY (not witnesses, experts, etc)
> up to 25
> written responses due within 30 days of service
142
A party may conduct an oral deposition without the court's leave or the parties' stipulation unless:
(1) it's passing the 10 depo limit
(2) the deposition is sought before the initial planning conference, or
(3) the deponent was already deposed in the case.
143
a federal appellate court generally has no jurisdiction to hear an appeal until what?
Until the district court has issued a final judgment—i.e., a decision that fully resolves the dispute on the merits. However, the interlocutory appeals statute allows certain orders to be appealed before the entry of a final judgment.
144
Elements required by the Class Action Fairness Act which gives a federal court an alternative basis for subject-matter jurisdiction over a class action
(1) the class contains 100 members
(2) at least one class member is diverse from at least one defendant, and
(3) the amount in controversy of the aggregated claims exceeds $5 million
145
Unless the court orders otherwise, a responding party generally must respond to an amended pleading within what times?
Within
(1) the time that remains to respond to the original pleading or
(2) 14 days after service of the amended pleading—whichever occurs later.
146
When is a jury-instruction error preserved for appeal?
When a party timely objects to the instruction on the record and states the grounds for the objection.
An objection is timely if it is made promptly after learning that a jury instruction has been or will be given OR that a request has been refused.
147
Parties must generally make initial disclosures of all documents and items that the party possesses and may use to support a claim or defense. If documents or items are in the possession of a nonparty, what must the party do to produce those docs?
A party may issue a subpoena to compel the nonparty produce those documents or items.
148
When can a district court correct a mistake in a judgment, order, or other part of the record?
Before an appeal is docketed in the appellate court
> A district court can correct a mistake on its own initiative or pursuant to a party's motion
After an appeal has been docketed
> the district court can correct the mistake only with the appellate court's leave.
149
A party may obtain extraordinary relief within one year of the entry of a final judgment based on (1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence, or (3) an opposing party's fraud, misrepresentation, or misconduct.
150
allegations that are not denied will usually be treated as admissions.
What type of allegations wont be treated as admissions if they're not denied?
damages-related allegations cannot be admitted by the defendant's failure to deny them in an answer.
151
when will persona jurisdiction not be fully waived?
when there was no pre-answer motion > an answer that didnt assert lack of PJ > amendment before 21 days
then ok bc it was amended within the ok timeframe
152
when can a party move for JMOL and for what
> A party can move for JMOL whenever the other party has been fully heard on that matter
> can move for JMOL with respect to any claim or defense
153
If a P fails to prosecute the case or comply with a rule or court order and then court dismisses the case, what does that mean?
that P cant bring it again bc there was an involuntary dismissal aka with prejudice
154
How can process be served
(1) following the rules of the state where the court is or where service is made
(2) delivering the summons and complaint to D personally (or to his/her authorized agent)
(3) leaving the summons and complaint at D's dwelling with a resident of suitable age and discretion
155
true or false:
An appellate court has discretion to permit an appeal from an order granting or denying class action certification if filed within 14 days
true
>If the appellate court permits the appeal, the district court proceedings are stayed pending the appeal only when ordered by the district court or the appellate court.
156
are preliminary injunctions immediately appealable?
yes as a matter of right
157
issue not clearly substantial/procedural + no fed law applies.
What law do federal courts sitting in diversity claim, apply?
state law if
(1) it would be outcome determinative—i.e., failure to apply it would result in forum-shopping or inequitable administration—and (2) there is no contrary federal interest.
158
diversity case applies state law to substantive issues and fed law to procedural
if conflict bc unclear if issue is substantive/procedural >> fed law applies if what?
if the federal rule:
> is arguably procedural AND
> doesn't affect substantive rights
159
does issue preclusion apply if the party in T2 is diff than T1 party
no it will not apply
parties that can assert issue preclusion:
> party from T1 when there's a T2 against them for same issue
> non-parties after parties from T1 are trying to try same issue in T2
160
true or false:
once selected, a juror must participate in the verdict unless excused for good cause.
true; good cause exists when the juror has
> an illness
> family emergency or
> committed juror misconduct that might cause a mistrial.
161
2 ways sanctions can be initiated
(1) by a party's motion (serve it but then wait 21 days to file it so OC has a chance to correct their violation)
(2) court's own initiative as long as the judge issues an order to show cause.
162
if a district court makes a mistake in a judgment when can they fix it?
> BEFORE appeal is docketed:
- on its own initiative or pursuant to a party's motion
> AFTER appeal is docketed:
- only with the appellate court's leave.
163
When will an amended complaint "relate back" to the date of the original complaint
(1) the same occurrence is at issue, (2) the new party received notice of the suit within 90 days after the original complaint was filed, and
(3) the new party knew or should have known that it would have been sued but for a mistake about its identity.
164
when can a default judgement including money be entered?
when:
> Ps claim is for a specified amount
> Ps request for default judgement includes an affidavit that says the amount due
> D failed to appear by either not filing a motion or acting before the court
> D isn't a minor or legally incompetent
165
what does having a right to a jury trial depend on?
having a jury trial depends on the relief sought bc if:
Legal claim = right to jury
Equitable claim = no right to jury
166
General verdict with answers
In a general verdict with special interrogatories, the jury decides which party should prevail and provides answers to questions on each factual issue.
If the verdict and answers are inconsistent, the judge must
(1) order a new trial
(2) direct the jury to further consider its answers and verdict, or (3) enter a judgment consistent with the answers.
167
some judgments are immediately appealable and some are not bc they're considered final-judgements
what's the exception to the final-judgement rule?
A district court may certify an order for appeal by stating in writing that (1) there is a substantial difference of opinion on a controlling question of law and
(2) an immediate appeal may materially advance the ultimate termination of the litigation.
168
when can a party request jury instructions?
>before or at the close of evidence unless the court sets an earlier deadline.
> Even after the close of evidence, a party can request instructions:
(1) on issues that could not reasonably have been anticipated by the deadline
or
(2) with the court's permission.
169
The general venue statute applies when a federal officer or employee is sued in his/her individual capacity. But special venue rules apply when a federal officer or employee is sued for acting in an official capacity or under color of legal authority.
170
Standards of review for appeals
Questions of law:
> de novo
Findings of fact:
> clearly erroneous
Matters of discretion:
> abuse of discretion
171
Can a TRO be issued without a hearing or notice to the adverse party?
> A TRO is used to preserve the status quo until the court can
make a decision on the preliminary injunction
Yes, but ONLY IF:
(1) the movant establishes under written oath that he/she will suffer immediate and irreparable harm before the nonmovant can be heard
AND
(2) the movant's attorney certifies in writing any efforts made to give notice and why notice should not be required.
172
claim preclusion
(i.e., res judicata)
Claim preclusion (i.e., res judicata) bars identical parties from relitigating identical claims after the entry of a valid final judgment on the merits
173
issue preclusion
(i.e., collateral estoppel)
bars the re-litigation of issues of fact or law that were actually litigated, determined, and essential to a valid final judgment in a prior lawsuit.
An issue is essential if it provided a clear and necessary component of the ultimate decision
(essential issue = the final judgment depended on the determination of that issue)
174
Subject-matter jurisdiction for statutory interpleader requires the stakeholder to deposit the property at issue with the court or post a bond in an amount determined by the court.
175
Rule interpleader requires complete diversity between the stakeholder and the claimants and an amount in controversy that exceeds $75,000.
But statutory interpleader merely requires minimal diversity between the claimants and an amount in controversy of at least $500
176
Under the Erie Doctrine, what law governs in a federal question claim?
federal law
177
How can someone in the US get served?
(1) Personally serving the D
(2) Leaving the summons/complaint at the D's usual home w/ someone of suitable age and discretion who resides there
(3) delivering it to an authorized agent
178
Under Rule 20 permissive joinder, does the defendant to be joined have to meet the requirements of federal subject matter jurisdiction?
If the claims are made solely on the basis of diversity jurisdiction, there must be complete diversity between the plaintiffs and the defendants, and each claim must exceed the jurisdiction amount in controversy of $75,000.
179
How much time does a party have to respond to interrogatories?
30 days
180
3 types of mandatory disclosures?
(1) initial disclosures 14 days
(2) disclosures of expert testimony 90 days before trial
(3) pretrial disclosures 30 days before trial
181
When is a default and when default judgment entered against a party?
A default happens when hasn't plead or defended an action and then that failure to act is shown by affidavit so the court enters it
after its entered the party can seek a default judgment
182
to satisfy diversity a party has to be either:
> citizen of a state
> citizen of a foreign country
so US citizens residing in a foreign country that they don't have citizenship of cannot meet diversity
183
Appearance for the express purpose of making a jurisdictional objection is not consent to the court's jurisdiction over her. Instead, the objection is waived if the personal jurisdiction objection is not raised in the first of a pre-answer Rule 12 motion or the answer itself
they only went to that jurisdiction to argue that it doesn't have jurisdiction in the first place, not bc they're consenting to it
if they don't raise the objection in a ore-answer motion or answer itself then its waived
184
a case will have federal question jurisdiction even a cause of action is based on state law if the court determines that the interpretation or application of state law may affect the outcome and the federal issue or interest is important enough to justify the exercise of jurisdiction. I
185
In an in rem action, the forum court generally has personal jurisdiction over a defendant when the dispute centers on ownership of property located in the forum state
the property
186
getting a default judgment means the plaintiff wins because the defendant didn't respond to the lawsuit.
The process can be simple if it's about money and the defendant hasn't appeared in court bc they file an affidavit
If there are complications, like unclear amounts/D is minor or mentally unstable then Plaintiff has to ask judge directly for default judgement
If the defendant has appeared in court before, the plaintiff needs to give the defendant written notice
7 days before P goes to court for a decision
187
motion to compel comes before sanctions
188
a party cant be served by another party
189
Due process requires counsel at a probation-revocation proceeding if the person
(1) denies committing the alleged violation
or
(2) asserts that complex reasons justified or mitigated it.
The Sixth Amendment guarantees this right if a sentence for the underlying offense (1) has not been imposed and (2) will be imposed if the probation is revoked.
190
collateral order doctrine
allows an immediate appeal from an interlocutory order that:
> conclusively resolves an important issue that's separate from the merits of the claim
and
> cannot be effectively reviewed on appeal from a final judgment
ex: an order denying a claim of governmental immunity bc govt needs to appeal asap
191
Absent the parties' stipulation, a party may voluntarily dismiss a crossclaim, counterclaim, or third-party claim without a court order by unilaterally filing a notice of dismissal (1) before a responsive pleading is served or (2) if a responsive pleading is not served, before evidence is introduced at a hearing or trial.
192
Discovery requests generally cannot be served until the parties have held an initial planning conference to arrange for initial disclosures and prepare a discovery plan.
193
when does the bulge provision apply
allows fed court to have PJ over a D who isn't in the state where the court is located but within 100 miles
applies to:
> a third-party defendant who is joined under Rule 14 and
> a required party who is joined under Rule 19.
194
a defendant corporation can be subject to specific jurisdiction even when there is no general if
a cause of action arises out of or closely relates to a defendant’s contact with the forum state, even if that contact is the defendant’s only contact with the forum state
like if hey could've concluded their product would end up there
195
common nucleus of operative fact required for supp. jurisdiction
but if the original fed claim is dismissed does the court have to hear the state claim?
it MAY
196
what must a TRO include
(1) reasons why it was issued
(2) reasonable description of acts that are commanded/prohibited and
(3) its specific terms
197
for a judgement as a matter of law to be granted the court determines if theres if there is is LEGALLY sufficient evdidence for a JURY to decide otherwise
198
preliminary injunction:
> D needs to receive notice of the hearing and a chance to participate in it
Temp Restraining Order (TRO):
> can be granted WITHOUT notice of the hearing
199
motion for attachment
"attachment" will have someone's property seized in order to secure a judgement
if they're broke, then "attach" to their property
200
> if you have a fed claim and supp jursi. for a state claim.
> then fed claim is dismissed
can the other party immediately appeal this decision?
no bc there is no final judgement yet, the state claim hasn't been decided yet
