Mixed Review Flashcards
When a defendant is a nonresident of the US where is venue proper?
Venue is proper in any federal judicial district
What is the difference between ordinary and opinion work product for discovery?
Ordinary: contains factual info related to the case- (IE interviews at the scene of the crime by one attorney)
Ordinary WP is not discoverable unless req. party 1. has sub. need for materials AND 2. cannot obtain info without undue hardship.
Opinion: contains attorney’s mental impressions, conclusions, opinions, or legal theories. NOT discoverable unless: material concern’s attorney’s alleged fraud/illegal conduct (this is rare)
Who can sanction proceding be initated ?
- by an opposing party, who must give the violator 21 days to correct the violation,
OR - the court (sua sponte), which need not give the violator time to correct the violation.
Clear error review
High deference, where a judge’s finding of fact, for example on witness credibility, will be reversed by the appellate court only if they were clearly erroneous such that no reasonable judge would have made them.
Erie doctrine definition simplified
Under the Erie analysis, a federal court sitting in diversity must apply state law if:
1. it would be outcome determinative - ie failing to apply it would result in forum shopping or inequitable administration of the laws
AND
2. there is no countervailing federal policy interest.
any party may secure the right to a jury trial on any legal claim by: (2)
- serving the other parties with a written jury demand no later than 14 days after the last pleading is served
AND - filing the demand with the court within a reasonable time after serving it.
The following three defenses as waived if they are not asserted in a pre-answer motion or the answer, whichever occurs first:
- lack of PJ
- improper venue
- insufficient processor service or process
When can a valid crossclaim be asserted?
In the answer, a crossclaim is a permissive counter claim for relief against a co-party that can only be asserted if it arises from the same transaction or occurrence as another claim in the suit.
A party’s admission or failure to adequately respond to a RFA within 30 days after being served with the request results in what?
Results in the matter being conclusively established in the action
A party can move to alter or amend a final judgement within 28 days after judgement is entered when:
- the judgement is based on a manifest error of law or fact
- it is necessary to prevent manifest injustice,
- new evidence has been discovered,
OR - an intervening change in the controlling law has occurred.
A court should grant Sum Judgement if the movant shows :
That there is no genuine issue of material fact and they are entitled to judgement as a matter of law. (ie because the SOL has expired, etc.)
When may a party move for a more definite statement of a pleading?
If the pleading is so vague or ambiguous that the party cannot reasonably draft a responsive pleading
When must a motion for a more definitive statement be filed?
What must it contain?
must be made BEFORE filling a responsive pleading (eg. the answer).
The motion must specific the pleading’s defects and details sought that will cure these defects.
What are the three ways that at any time a final judgment can be challenged in federal court?
at any time a federal court may:
- entertain an indp. action to relive a party from a judgement, order or proceeding,
- grant relief pursuant to a fed. statute.
OR
- set aside a judgement for fraud on the court.
A party may demand a jury trial by:
- serving the other parties with a written jury trial demand no later than 14 days after the last pleading directed to that issue is served
AND - filing the jury trial demand with the court within a reasonable time after service of the demand.
