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Civil Procedure > Overview > Flashcards

Overview Flashcards

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Civil Procedure 1L flashcards
1
Q

types of personal jurisdiction

A
  1. in personam
  2. in rem
  3. quasi in rem
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2
Q

in personam

A

forum has personal jurisdiction over defendant

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3
Q

in rem

A

forum has power to adjudicate rights of all persons to a particular item of property; defendant not personally bound

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4
Q

quasi in rem (two types)

A

quasi in rem type I - court ajudicates rights of parties in property based on property being in the forum; a close connection between the case and the property provides minimum contacts

quasi in rem type 2 - court attaches property to bring defendant into forum on unrelated claim; defendant must have minimum contacts with forum

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5
Q

statutory limitations on personal jurisdiction

A

federal court has to analyze PJ like it were a court in the state where it is located.

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6
Q

most, if not all, states authorize jurisdiction over defendant who:

A
  1. is present in forum state and personally served with process there
  2. is domiciled in forum state
  3. conducts systematic and continuous business in the state such that the defendant is essentially at home there
  4. consents to jurisdiction or
  5. commits an act covered by the long arm statute
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7
Q

constitutional limitations on personal jurisdiction

A

modern due process standard is about contact and fairness.

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8
Q

Minimum Contacts

A

Defendant has to have such minimum contacts with the forum state such that exercise of PJ over him is reasonable and fair.

Ask: Did the defendant purposefully avail himself of the benefits and protections of state law and whether he could have anticipated being brought into state court.

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9
Q

notice also required for PJ

A
  1. traditional personal service methods will satisfy notice requirements
  2. requirement that agent notify defendant
  3. requirement for cases involving multiple or unknown parties
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10
Q

Subject matter jurisdiction in federal courts

A
  • diversity of citizenship jurisdiction
  • federal question jurisdiction
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11
Q

diversity of citizenship jurisdiction

A
  1. complete diversity
  2. jurisdictional amount in excess of 75,000
  3. erie doctrine
  4. exceptions to diversity doctrine
  5. multiparty, multiforum trial jurisdiction act
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12
Q

federal question jurisdiction

A
  1. federal question must appear in complaint
  2. implied federal right of action possible
  3. supplemental jurisdiction
  4. specific statutory grants of exclusive federal jurisdiction
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13
Q

What is complete diversity?

A

every defendamt must be of diverse state citizenship from each plaintiff - this is “complete diversity”

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14
Q

When must you have complete diversity?

A

when action commenced

Exception: interpleader

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15
Q

what is alienage jurisdiction?

A

citizen of US state and foreign citizen

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16
Q

indiividual citizenship

A

domicile (physical presence and intent)

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17
Q

corporation citizenship

A

every state where incorporated and the one state with PPB

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18
Q

unincorporated associations and LLCS citizenship

A

citizenship of its members

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19
Q

legal representatives citizenship

A

domicile of the represented person

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20
Q

class action citizenship

A

domicile of the named members

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21
Q

nonresident US citizens

A

no citizen of any state and not an alien

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22
Q

aggregation

A
  1. one P may aggregate claims against single D
  2. one P may NOT aggregate SEPARATE claims against several Ds
  3. one P may sue several Ds on a joint liability claim if it exceeds 75,000
  4. several Ps may aggregate claims against one D if seeking to enforce single title or right
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23
Q

counterclaims

A
  1. compulsory counterclaim may invoke supplemental jurisdiction
  2. permissive counterclaim needs original jurisdiction
  3. citizenship generally not an issue
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24
Q

Supplemental jurisdiction under FQ

A

a. pendant claims - federal courts CAN hear a state law claim arising from a common nucleus of operative fact

b. pendant parties - MUST be common nucleus of operative fact

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25
Q

General Venue Rules

A

Venue is usually proper in federal district where any defendant resides (if all the defendant are in the same state). Also where a substantial part of the events happened, or where a substantial part of property situated

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26
Q

Fallback provision of the general venue rule

A

If no district satisfies above, venue proper where any defendant is subject to court’s PJ

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27
Q

can venue be waived?

A

Yes

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28
Q

Residence for Venue purposes

A

individuals - domicile
business entities - where subject to court’s PJ
nonresidents - any judicial district

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29
Q

transfer of venue original venue proper

A

transfer for convenience to venue where case might have been brought or to venue to which parties consent

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30
Q

original venue wrong transfer

A

transfer to venue where case could have been brought to correct error

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31
Q

applicable law original venue proper transfer

A

When a transfer is based on convenience grounds we carry the law of the transferor court to the transferee court unless the transfer was ordered to enforce a forum selection clause

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32
Q

applicable law original venue improper

A

law of transferee court applies

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33
Q

What is removal

A

D can remove an action that could have originally been brought to federal court.

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34
Q

requirements for removal

A
  1. original jurisdiction
  2. state court need not have had jurisdiction
  3. only Ds can remove
  4. venue - federal district where state action was filed
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35
Q

diversity jurisdiction removal

A
  1. dismissal of nondiverse party can allow removal
  2. case cannot be removed based only on diversity if a defendant is a forum state citizen
  3. case cannot be removed based solely on diversity more than one year after case was filed unless D can show P acted in bad faith and stopped removal
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36
Q

FQ jurisdiction removal

A
  1. having a federal defense is insufficient
  2. entire case is removed
  3. state law claims may be severed and remanded to state court.
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37
Q

removal procedure

A
  1. time - 30 days
  2. remand to state court if no federal subject matter jurisdiction
38
Q

injunctions against state court proceedings

A
  1. federal court generally may not enjoin pending state proceedings
  2. threatened state criminal proceedings - to prevent clear and imminent harm that cannot be remedied with a criminal appeal
39
Q

service of process

A

personal service, abode service, service on agent; also state rules and waiver of service by mail

40
Q

what do interlocutory injunctions do?

A

maintain status quo until trial.

41
Q

preliminary injunctions

A

require notice

42
Q

substantive requirements of interlocutory injunctions

A

irreparable harm, harm to party seeking injunction outweighs harm to party to be bound, likelihood of success on the merits, public interest factors

43
Q

temporary restraining orders

A

necessary to prevent irreparable injury

44
Q

pleadings

A
  1. complaint
  2. pre-answer motions
  3. answer
  4. special pleading
  5. reply by plaintiff generally not required
  6. amendment of pleading and supplemental pleadings
  7. rule 11
45
Q

What is an answer?

A

specific or general denials by defendant

46
Q

Rule 11

A

a. attorney certifies proper purpose upon presenting paper to court
b. sanctions - judge has discretion limited by deterrence factor

47
Q

joinder

A
  1. compulsory joinder
  2. permissive joinder
  3. joinder of claims
  4. intervention
  5. impleader
  6. cross-claims
48
Q

if ansentee can’t be joined, court must consider whether to proceed without absentee looking at:

A
  1. prejudice to absentee and parties
  2. whether judgment can be shaped to avoid prejudice
  3. adequacy of judgment without absentee
  4. whether another forum can hear entire case
49
Q

permissive joinder

A

arises out of same occurrence and transaction and common question of law or fact

50
Q

Class Action Fairness Act

A
  1. Federal jurisdiction if:
    - any member of the plaintiff class is of diverse state citizenship from any defendant
    - aggregated amount in controversy exceeds 5 million
    - 100 members to the class
  2. local considerations may defeat jurisdiction
51
Q

interpleader

A
  1. to avoid double liability
  2. mnemonic: Rule 22 interpleader must follow the regular rules; statutory interpleader has special, simple standards
52
Q

types of disclosure required without discovery request

A
  • initial disclosures
  • disclosure of expert testimony
  • pretrial disclosures
53
Q

scope of disclosure/discovery (in general any relevant nonprivileged matter that is proportional to the needs of the case

A

a. trial preparation materials
b. experts
c. protective orders may limit or end discovery if abused

54
Q

subject to the rules of evidence, depositions can be used:

A
  1. to impeach the witness
  2. for dead, unavailable or absent witness
  3. for any purpose if deponent is the adverse party
55
Q

pretrial conferences

A
  1. rule 27(f) conference of parties - planning for discovery
  2. Rule 16(b) scheduling conference
  3. sanctions for failure to attend, obey an order, etc.
56
Q

jury trial problems

A

a. right to jury trial (7th amend)
b. jury size at least 6 no more than 12
c. jury instructions - objections must be made before jury retires
d. jury verdicts - general (for plaintiff or defendant and amount of damages) or specific (jury makes findings on material issues of fact)

57
Q

summary judgment

A

if no genuine dispute of material fact, party entitled to judgment as a matter of law (no trial is necessary)

58
Q

judgment as a matter of law (JMOL - directed verdict)

A

a. evidence is looked at in the light best for the nonmoving person
b. don’t consider witness credibility
c. standard - the evidence shows a reasonable jury would not have a legally sufficient reason to find for the party on that particular issue

59
Q

renewed motion for judgment as a matter of law (aka JNOV)

A

same standards as JMOL

60
Q

motion for new trial - some error occurred

A

if made with renewed motion for judgment as a matter of law, and renewed motion is granted, judge must rule hypothetically on new trial motion

61
Q

party waives “sufficiency of the evidence” argument on appeal if:

A

… he fails to make a renewed motion for judgment as a matter of law or for a new trial

62
Q

time for appeals?

A

generally 30 days

63
Q

claim preclusion (res judicata)

A

a final judgment on the merits bars claimant from asserting same claim in later action

64
Q

issue preclusion (collateral estoppel)

A

a judgment binds parties (or their privies) in subsequent actions between them as to issues actually litigated and essential to judgment in first action

65
Q

who is bound by judgment?

A
  1. parties and their privies are bound
  2. mutuality rules
66
Q

If the moving party for summary judgment submits an affidavit or other evidence in support…

A

…the responding party also must submit an affidavit or report to counter with their own evidence.

67
Q
A
68
Q

For claim preclusion to apply there must have been:

A
  1. valid, final judgment
  2. BOTH parties must be the same
  3. new action must involve the same cause of action
69
Q

For issue preclusion to apply:

A
  • issues in both actions the same
  • there has been a final judgment to that issue
  • party against whom estoppel is made had a fair opportunity to be heard
  • it would not be unfair to apply collateral estoppel
70
Q

Do settlements have an issue preclusive effect?

A

No.

71
Q

If the moving party for summary judgment submits an affidavit or other evidence in support…

A

…the responding party also must submit an affidavit or report to counter with their own evidence.

71
Q

For issue preclusion to apply:

A
  • issues in both actions the same
  • there has been a final judgment to that issue
  • party against whom estoppel is made had a fair opportunity to be heard
  • it would not be unfair to apply collateral estoppel
71
Q

Do settlements have an issue preclusive effect?

A

No.

71
Q

For claim preclusion to apply there must have been:

A
  1. valid, final judgment
  2. BOTH parties must be the same
  3. new action must involve the same cause of action
72
Q

If the moving party for summary judgment submits an affidavit or other evidence in support…

A

…the responding party also must submit an affidavit or report to counter with their own evidence.

72
Q

For claim preclusion to apply there must have been:

A
  1. valid, final judgment
  2. BOTH parties must be the same
  3. new action must involve the same cause of action
73
Q

Do settlements have an issue preclusive effect?

A

No.

73
Q

For issue preclusion to apply:

A
  • issues in both actions the same
  • there has been a final judgment to that issue
  • party against whom estoppel is made had a fair opportunity to be heard
  • it would not be unfair to apply collateral estoppel
74
Q

As a general rule, a judgment from a federal district court can be enforced:

A

30 days after it is entered.

75
Q

Generally, the right to a jury trial is deemed waived if a party fails to demand a jury trial within 14 days after the service of the last pleading in which the jury-triable issue is addressed.

The Supreme Court has held that, in the absence of compelling reasons to the contrary, a court should _______ if the issue is _______.

A

grant relief from the waiver; normally tried by a jury

76
Q

If a case filed in state court contains a claim that would arise under federal law, and it is joined with state law claims that do not invoke diversity or supplemental jurisdiction, what portion of the case (if any) can be removed to federal court?

A

the entire case

77
Q

Intervention is __________ when the intervenor’s action and the main action have a claim or defense involving a common question of law or fact.

A

permitted in the court’s discretion

78
Q

If a case involving multiple defendants is removed to federal court on the basis of a federal question being presented, and some of the defendants have only state law claims that cannot invoke diversity or supplemental jurisdiction, who must join in the removal?

A

only those defendants against whom a federal claim is asserted

79
Q

Generally, discovery can be had of any matter not privileged that is:

A

relevant to the claim or defense of any party, including the identity of persons having knowledge of relevant facts.

The costs of discovery and the needs of the case also will be considered.

80
Q

Work produce of lawyers and other made in anticipation of litigation is discoverable only on

A

a showing of substantial need and to avoid undue hardship in obtaining the material from other sources.

81
Q

on a showing of good cause, the court could order disclosure of any information that is:

A

relevant to the subject matter of the current litigation.

82
Q

What is a compulsory counterclaim?

A

If a counterclaim arises out of the same transaction or occurrence as one of the plaintiff’s claims, it is a compulsory counterclaim and must be pleaded or the party will be barred from bringing it in a later action.

Any other counterclaim is permissive and may be asserted even though there is no connection between it and the plaintiff’s claim.

83
Q

How long is a TRO valid?

A

14 days.

84
Q

What is the burden on the claimant for proving an ineffective assistance of counsel claim?

A

Reasonable probability.

85
Q

What is the time limit to file a motion for relief from judgment to correct clerical mistakes?

A

There is no time limit, and the court order correcting the error dates back tot he time judgment was entered.

Civil Procedure (12 decks)

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