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Bar Exam Del Law > MY - Con Civ > Flashcards

MY - Con Civ Flashcards

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1
Q

3 Situations when it makes difference if a counterclaim is COMPULSORY or PERMISSIVE ?

A

1) The court has no independent subject matter jurisdiction over the counterclaim
(it’s DIVERSITY not a federal question and there is no diversity);

2) the statute of limitations on the counterclaim has run;
3) D in first case (action) didn’t file a counterclaim and has now filed a claim in a separate suit against initial P.

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2
Q

Needs to be stated particularly (HEIGHTENED PLEADING)

A

Fraud, Mistake (named claims)

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3
Q

Work Product Doctrine R.26(b)(3)

A

Work Product of Attorney in Prep for Litigation

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4
Q

Work Product Doctrine - It IS Protected if

A

1) Documents gathered in prep for litigation
2) Between Atty and other parties NOT the client

Have to overcome and show to get documents

  • BUT NOT mental impressions of Atty -
    1) Not privileged, proportional, and relevant
    2) SUBSTANTIAL NEED for the docs
    3) Undue Hardship to get a substantial equivalent (someone died, the changed the road)
  • Reasons for Allowing Party to have it *
    1) Where it is Hidden in Atty File But ESSENTIAL
    2) Difficulty in getting the info yourself
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5
Q

Discovery Scope RULE - Only Stuff that is:

A

a. Not Privileged
b. Only Relevant Info
c. Must be Proportional

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6
Q

Voluntary Dismissal by Plaintiff

A

ONE FREE - Without a Court Order R.41(a)(1)(A)
( b/c you messed up) if
BEFORE Answer or motion for summary judgement

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7
Q

Permissive Joinder of Parties (R20)

A

(A) they assert any right to relief jointly arising out of STOO

(B) any question of law or fact common to all will arise in the action

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8
Q

Cross - Claim - against a party who is …

A

…on same side as you (Co-Party)

if the claim arises out of STOO that is the subject matter of

1) the original action or
2) of a counterclaim

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9
Q

Permissive C/C R.13(b) - does not …

A

arise out of STOO

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10
Q

Permissive C/C R.13(b) - if not raised then …

A

not waived and the defendant is free to bring an independent action on the claim.

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11
Q

Compulsory C/C R.13(a) – DOES arise…

A

Out of the Same Transaction or Occurrence / STOO

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12
Q

Compulsory C/C R.13(a) – it ____ or else it is ____

A

it must be RAISED in the defendant’s answer, or it is WAIVED

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13
Q

Defaults: R.55 Motion for Default Judgement

A

A NO SHOW

a. . When someone has failed to “plead” or otherwise Defend
b. NO DEFENSE PRESENTED

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14
Q

A Complaint needs to be

A

a short plain statement showing that pleader is entitled to relief

  • Fair notice and grounds / basis of complaint is what is needed
    1. Jurisdiction
    2. Claim of facts for basis of relief
    3. Relief Sought
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15
Q

Summary Judgment (R56)

A

Judge will grant if shown that there is

  • > > No genuine dispute as to any material fact
  • all justifiable inferences in favor of the nonmovant.
  • latest is 30 days after all discovery is done
    • if we don’t need to resolve a fact dispute , no reason for trial - then summary judgement (no merits balance)
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16
Q

Judgement as a Matter of Law - JMOL

A

No legally sufficient evidence to find for other party —> Standard: A reasonable jury would not have a legally sufficient evidentiary basis to find for the
party on that issue therefore JMOL

  • done at trial before jury deliberates and after if preserved / is their a dispute of fact ?
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17
Q

Renewed JMOL

A

1) MOVING party MUST have made a 1st JMOL request during trial
2) if the party previously made a motion for JMOL at the close of all the evidence (Defense rests)
3) w/in 28 days after the jury verdict

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18
Q

Motion for a New Trial

A

So long as a reasonable basis existed for the
jury’s verdict, an appellate court will not disturb the district court’s ruling on appeal.

– standard = Clearly Erroneous –

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19
Q

Personal Jurisdiction

A

Def has such minimum contacts with the state that it

    • does not offend traditional notions of FAIR PLAY and SUBSTANTIAL JUSTICE
      a) Did they Intentionally establish contact w/ state
      b) Purposeful Availment of the state’s laws / Solicited in State / accident on roadway / business
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20
Q

Personal General Jurisdiction - Corp at home (2 places)

A
  1. PPB
  2. Where Incorp

** OR ~ The contacts are “so continuous and systematic” as to make the corporation basically “at home” thus allow any claim against a defendant provided the defendant has organized and continuous relationship **

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21
Q

Venue - 3 steps

A
  1. Is it the Δ’s residence?
    - If multiple Δs, if they all live in the same state
    ~or~
  2. Where a substantial number of events occurred
    ~or~
  3. Fail Safe: (only if cannot get 1 or 2): Where there is personal j/d over Δ
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22
Q

Objections to Venue or Pers Jurisdiction:
When must be made?
If Not then?

A

First Responsive pleading (answer or pre-answer motion)

If not, then waived !

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23
Q

Order of Evaluation for a problem:

A
  1. Subject matter - b/c if none then case dead
  2. Personal Jurisdiction - b/c can’t pull def in
  3. Venue - Need right one
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24
Q

Venue: when in incorrect forum, Ct can?

A

Dismiss (indispensable party) or transfer

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25
Q

Subject Matter Jurisdiction: Federal Question Doctrine

Does citizenship or amount matter?

A

No - Citizenship is irrelevant and the amount is irrelevant

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26
Q

Subj. Matter Jdx - Fed question means that …

A

Is it Arising under Federal Law (the Constitution, laws or treaties of the US)

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27
Q

Subj. Matter Jdx - Diversity

A 
>$75,000 
\+ 
Domicile = Residence + Intent to Remain 
a. If leave , then it's the last one until establish a new one 
b.  Determined When the claim is filed
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28
Q

Subj. Matter Jdx - Diversity - Aliens:

A

a. Alien w/ permanent residency = a citizen

b. A stateless alien (person stripped of citizenship) cannot be diverse

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29
Q

Diversity for Unions / Associations

A

Assoc, etc are citizens wherever they have members (can have ONE MEMBER IN EVERY STATE)

30
Q

Subj. Matter Jdx - Fed question on Complaint

A

The well-pleaded complaint rule:

- We look for a federal question on the face of the complaint

31
Q

Removal Jurisdiction: rules

A
  1. The fed ct must have original jurisdiction
  2. removed from state court to federal
  3. Only Δ gets to request removal
  4. Diversity Must be complete and where NO Def is Citizen
32
Q

Removal Jurisdiction: = Diversity Limit

A

Diversity Suit - if you’ve sued in any Defendant’s home state, the case is NOT removable

33
Q

Supplemental Jurisdiction:

A

Jurisdiction over all other claims that are so related to claims that they form part of the same case or controversy under article 3
- as long as fair and efficient

34
Q

Supplemental Jurisdiction: 2 part test

A
  1. Does it form part of the same case or controversy -defined as having a common nucleus of operative fact. STOO
  2. Is it fair and efficient (Fed Question + State law claims with STOO)
35
Q

Transfer Venue § 1404 to any other district or division where it might have been brought - Analysis means

A

Have to check SMJ , Pers Jdx, Venue – all 3

(Sneaky, Sneaky)

36
Q

Removal Jurisdiction: Venue is where ..?

A

Wherever the state ct is the district ct in that county

37
Q

Erie Doctrine

1) Procedural Laws = 
2) Substantive Laws =
A
  1. Fed Law

2. State Law

38
Q

Erie - Laws of Several States

A

The laws of the several states, except where the Constitution, treaties, laws control
- means State common law decisions too
— shall be rules of decision in CIVIL ACTIONS

39
Q

Dual Aims of outcome - Erie Doctrine

A
  1. Discouraging Forum Shopping

2. Promote Uniformity in Outcomes

40
Q

Erie when there is a conflict between State and Fed Law

- 2 part test-

A

You Apply State Laws except where you have a Federal Constitutional Rule that addresses the same issue -
Two-Part Test Simplified
(1) If there is a valid Federal Rule on the subject, then
Fed Rule is to be applied.

(2) In the absence of a federal rule on the point the court is to consider the problem in light of the twin aims of the Erie rule,
(a) discourage forum shopping and
(b) avoid inequitable administration of laws. (Different results between state and federal courts.)

41
Q

When is an absentee party a necessary party?

R.19

A

If one of the following is met:

  1. P can’t get complete relief without A,
  2. A’s own interests could be harmed if he’s not joined,
  3. without A, Def might be subject to multiple obligations
42
Q

If a necessary party cannot be joined bc lack of Pers JDX or Diversity , what are the court’s options?

A

A. Dismiss the case, or

B. Carry on without

43
Q

Writ of Mandamus

A

App Ct takes the case from the trial judge + they hear it themselves

44
Q

Interlocutory Appeal

A

1) During Trial - about a trial judge’s decision
2) Trial Judge certifies for the interlocutory appeal
3) Appellate Ct then has to decide to take it
(both must agree)

45
Q

2 ways to Appeal in the Middle of a Case

A
  1. Interlocutory

2. Writ of Mandamus

46
Q

Interlocutory Appeals of Right

A

Injunctions + Modifying Possession of Property

All others - w/ leave of the court

47
Q 
Claim Preclusion (Res Judicata) 
3 ELEMENTS:
A

1) Prior action concluded in a valid final judgement on the merits
2) Claim in the subsequent action must be the same as the claim that was raised, or should / could have been raised (STOO)
3) The parties in the subsequent action must be the identical to (or in privity to) the first action

48
Q 
Issue Preclusion (Collateral Estoppel) 
 4 Elements
A

i. The issue to be precluded subsequent litigation must be the same issue that was raised in prior litigation
ii. The issue must have been actually litigated and determined in the first case
iii. The resolution of the issue must have been necessary to the final judgement in the initial action
iv. Party against who its being asserted must have had full and fair opportunity to litigate previously

49
Q

14th Amendment addresses ?

A

Equal Protection
a. “No State” applies to restrictions on State Gov’t
b. “Liberty” incorporates bill of rights to states
C. the bill of rights thus now applies to states also b/c incorporation through due process clause

50
Q

Limits on Federal Judicial Power - can only hear ___ ?

A

CASES and CONTROVERSIES

51
Q

Congressional Limits on Federal Judicial Power - cannot expand the power of judiciary - t / f ?

A

True

52
Q

5 Justiciability Limits on Federal Judicial Power

A
  1. Advisory Opinions
  2. Standing
  3. Ripeness
  4. Mootness
  5. Political Question
53
Q

Prohibition on Advisory Opinions means -

A
  1. Can’t advise about the constitutionality of a proposed action or law. (No Pre-opinions about an issue)
  2. Have final decision on a matter - can’t be overruled by congress
54
Q

2 types of Standing

A

1 . Constitutional Standing

2. Prudential Standing

55
Q

3 Requirements for Constitutional Standing

A
  1. Injury - to the party bringing the suit
  2. Causation - cause of injury can be fairly traced to the other party
  3. Redressability - if the court’s decision is favorable to the plaintiff, will it actually resolve / bring relief from the injury
56
Q

2 Prudential Standing Restrictions

A
  1. No Third Party Standing - can’t bring a dispute for a violation of another’s rights
  2. No Generalized Grievances - Can’t bring a suit that shares a grievance common to all taxpayers
57
Q

Ripeness means the issue is____ ?

A

Ready to be resolved
~BUT~

~ the Court can grant “Pre-Enforcement” review or ruling b/c You don’t need to be arrested (and maybe loose in court) to challenge law [weight the hardship to parties if they violate the law]

~and~
if the law isn’t being enforced it isn’t ripe b/c no real threat of enforcement

58
Q

Mootness is when _____ ?

A

Further legal proceedings can have no effect

  1. the party is dead or
  2. the matter has already been settled

[Must present a Live Controversy at ALL stages]

59
Q

3 Mootness Exceptions

A
  1. Wrongs capable of being repeated
  2. Voluntary Cessation - stopped behavior but can start again
  3. A Class Action
60
Q

3 Main Political Question Areas

A
  1. Foreign Affairs
  2. Impeachment Process
  3. Challenges to Restrictions on Congressional Membership.

[Inappropriate for judicial review and best left to the political process]

61
Q

2 Questions to ask when a law Congress made is being challenged

A
  1. Where did they get the power? Must point to some place in Constitution most likely Commerce Clause
  2. Does it violate some other right?
62
Q

Commerce Clause 3 part Test for regulation

A
  1. The channels of interstate commerce
  2. The instrumentalities of interstate commerce, or persons or things in interstate commerce
  3. Activities that substantially affect or substantially relate to interstate commerce
    [can only aggregate economic activities]
63
Q

Federal Anti-Commandeering Principal

A

Feds cannot force State and Local Gov’ts to implement Fed Laws . Regulations (gun checks)

~BUT~

Can use Incentives and can regulate the states but cannot force the states to regulates their citizens (dmv personal info)

–10th Amendment restrictions on Fed –

64
Q

Where can a federal ct remand a case?

A

Can ONLY remand to a state ct where the case originated.

  • If originated in Fed Ct = NO Remand bc No state ct to remand to
65
Q

Standard of review for Evidentiary Rulings?

A

Abuse of Discretion

66
Q

Choice of Law Rules are - Substantive or Procedural ?

A

Substantive !

- state law substantive

67
Q

Lack of Venue - can be raised

A

either an

  • answer or
  • a motion to dismiss.
68
Q

Voluntary Dismissals - how many ?

A

2 - then it’s adjudication on the merits

69
Q

Right to trial by jury - a jury verdict must be

A

Unanimous

> unless stipulated otherwise

70
Q

Sup JDX - 3rd Party - Def Claim against 3rd Party Def

A

STOO as Orig P

- CT can SJDX without Diversity or AIC

71
Q

Motion Timing

A 
*  12 (b)(1) - SMJDX = Any Time *
> 12(b) 2-5 = Loose if Not Pre-Answer or Answer 
 (MUST BE IN RESPONSIVE PLEADING) 
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process

> > Latest is at Trial R12(b) 6-7

(6) failure to state a claim
(7) failure to join a party under Rule 19.

Bar Exam Del Law (21 decks)

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