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Federal Civil Procedure > Rules on Past Exams > Flashcards

Rules on Past Exams Flashcards

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Civil Procedure 1L flashcards
1
Q

To exercise personal jurisdiction over a nonresident defendant, a Virginia court needs to satisfy…

A

both the Virginia Long Arm statute and show that the exercise of does not violate principles of Due process.

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2
Q

The Virginia long-arm statute includes someone who:

A
  1. Causes tortious injury instate by act or omission instate
  2. Causes tortious injury instate by act or omission out of state
  3. Contracts to supply services or things in Virginia
  4. Has an interest in, uses or possesses realty in Virginia
  5. Transacts any business in Virginia
  6. Causing injury in Virginia by breach of warranty where sale was out of state.
  7. Domestic relations
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3
Q

Virginia is a single transaction state, meaning…

A

one business transaction leading to the cause of action will suffice.

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4
Q

After the long arm statute is satisfied…

A

you must evaluate whether the minimum contacts of a nonresident that lead to the claim in the case are sufficient in quality and nature to make it reasonable to exercise personal jurisdiction.

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5
Q

The minimum contacts test is satisfied if…

A

the defendant had contacts with Virginia displaying purposeful availment of Virginia’s laws and, thus, putting the defendant on reasonable notice of suit in VA.

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6
Q

So long as the contact has a substantial connection to the forum, even a ______ ___ cansatisfy due process.

A
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7
Q

Under Federal Rule of Civil Procedure 12, a defendant is not required to either make a _______ __________ before or simultaneously with a motion to dismiss for lack of personal jurisdiction.

A

special appearance

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8
Q

So long as the defendant _________________________ for lack of personal jurisdiction in the first-filed challenge to the plaintiff’s Complaint, such as in the first motion filed, then the personal jurisdiction defense is preserved.

A

files a timely motion to dismiss

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9
Q

To satisfy diversity jurisdiction, two requirements must be met:

A
  1. There must be complete diversity of citizenship, meaning that every plaintiff is a citizen of a State different from every defendant.
  2. The amount in controversy must exceed $75,000 exclusive of interests and costs.
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10
Q

The test for citizenship of individuals is…

A

the person’s domicile.

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11
Q

What is a person’s domicile?

A

(a) where the individual has a physical residence, and (b) the intent to make the residence his or her permanent physical residence.

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12
Q

Where does a corporation hold its citizenship?

A

in its State of incorporation and in the state where the corporation has its principal place of business.

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13
Q

The general rule precludes a plaintiff from aggregation the amount of damages when she…

A

joins more than one defendant so as to exceed $75,000 exclusive of interests and costs.

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14
Q

What is the exception to the rule against aggregating claim amounts?

A

Aggrefation of damages of claims is allowed against two or more defendants whose negligence jointly contributed to a single injury, such that they are jointly liable.

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15
Q

The amount required to comply with an injunction is…

A

deemed to be the amount in controversy.

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16
Q

Under the Supplemental Jurisdiction statute, claims without SMJ are allowed in federal court when they…

A

arise from the same common nucleus of operative facts.

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17
Q

Venue is proper where:

A
  1. All of the defendants reside, or
  2. where a a substantial part of the events or omissions giving rise to the claim occurred.
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18
Q

What is the exception to the venue rule?

A

If the defendants are all from one state, venue is proper in any district in that one state.

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19
Q

Transfer is only available if the transferee district…

A

is one where the original case might have been brought.

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20
Q

You can only appeal when…

A

there is a final order in the case. There are narrow exceptions for an appealable interlocutory order.

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21
Q

In cases removed to Federal Court based on diversity, the case can be removed after a later change in the case creates diversity, so long as…

A

the change and removal occur within one year from commencement of the action.

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22
Q

What is the deadline to file a notice of removal in a case after a change in its status creating diversity?

A

30 days from receipt of the order showing the change in the status of the case.

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23
Q

The amount in controvery is still satisfied even if…

A

the plaintiff settles with one party for an amount that, if deducted from the total amount, would be less than $75,000. The plaintiff is entitled to seek from a single tortfeasor the entire amount of injury from an incident.

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24
Q

Under Federal Rule of Civil Procedure 12, a defendant can preserve any of the highly waivable Rule 12 defenses by…

A

raising any such defenses in its first defensive filing within 21 days of service on the defendant.

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25
Q

What are the highly waivable defenses?

A

12(b)(2)-(5).

  1. PJ
  2. Venue
  3. Process
  4. Service of Process
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26
Q

The defendant can choose to file a motion as his first defensive filing, or he can choose instead to file an answer. The key is that…

A

whichever of the two is the first defensive filing, he includes the highly waivable defense in that filing.

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27
Q

As long as a waivable defense is reserved, a later-filed motion can proceed to…

A

bring on for resolution the question of personal jurisdiction.

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28
Q

Federal Rule of Civil Procedure 12, therefore, rejects the classic general appearance doctrine. Under that doctrine…

A

personal jurisdiction had to be raised by the defendant’s appearing by special appearance solely to challenge jurisdiction and by filing a motion to dismiss based on personal jurisdiction, not an answer.

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29
Q

General jurisdiction has been reserved to instances in which a company is…

A

“at home” in a state.

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30
Q

The Supreme Court has indicated that the primary ways that a company would be at home in a state is by…

A

incorporating there or having its principal place of business in the State.

Lacking incorporation or having one’s principal place of business in a state, even substantial conduct and sales in a state—unrelated to the claim in question—have been insufficient to establish general jurisdiction.

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31
Q

A court will have specific personal jurisdiction if, under the International Shoe minimum contacts analysis…

A

the defendant has sufficient minimum contacts with the forum state and the claim in question arises from those minimum contacts.

32
Q

To satisfy specific jurisdiction, the defendant would have to be able to…

A

reasonably anticipate, based on its conduct prior to suit, being sued in the forum.

33
Q

In stream-of-commerce cases the Supreme Court has refused to find specific jurisdiction from a manufacturer’s…

A

simply placing a product in commerce.

34
Q

To be subject to PJ, a corporate defendant must have…

A

other purposeful conduct directed at the forum that would make it reasonable for the defendant to have anticipated being sued there on a claim related to products.

35
Q

Federal Rule of Civil Procedure 35 allows the court to order a party to submit to a physical or mental examination by a suitably licensed examiner when…

A

the party’s “mental or physical condition . . . is in controversy.”

36
Q

If the plaintiff puts her physical condition in controversy, she must submit to a physical examination, but not…

A

a mental one, and vice versa.

37
Q

A deposition of a witness to be used at trial is permissible when the witness is..

A

unavailable.

38
Q

For the purpose of using a deposition in place of trial testimony, unavailability under the Federal Rule includes…

A

a witness who at the time of the trial is:

  • dead,
  • beyond a 100 mile radius from the place of trial or outside the U.S.,
  • unable to attend trial because of “age, illness, infirmity or imprisonment,”
  • and/or the party offering the deposition could not procure the witness’ testimony by subpoena, or other extraordinary reasons.
39
Q

The cost of a witness to testify at trial and/or to give a deposition is…

A

not a grounds for unavailability.

40
Q

When a witness is available, but a party calls for using his deposition at trial, the other party may…

A

object to using the deposition in place of trial testimony.

41
Q

If a notice of a deposition is served before it can be scheduled in time for the discovery cut off, the opposing party may…

A

object to the deposition for untimeliness.

42
Q

In the event a party notices a witness for a deposition to be used at trial, the opposing party may also argue that any depositon testimony would be…

A

hearsay, as she would not get a chance to cross-examine.

43
Q

To remove a case, the defendant must show that the case is one…

A

within the subject matter jurisdiction of federal courts.

44
Q

For diversity purposes, the plaintiff who pleads more than $75,000 in controversy will have satisfied the amount in controversy requirement, unless…

A

to a legal certainty on reviewing the complaint the district court can say that there is no way the plaintiff can recover more than $75,000 exclusive of interests and costs.

45
Q

A defendant’s failure to remove a case to the correct ‘division’ as dictated by is not a jurisdictional defect, but a procedural one, and therefore must be….

A

objected to or the defect is waived. Such a procedural defect could be cured simply by transferring the case to the correct division.

46
Q

If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may…

A

deny joinder, or permit joinder and remand the action to state court.

47
Q

If a party joins a party that defeats SMJ, each side will argue whether…

A

the joinder was fraudulent.

48
Q

A valid pleading not subject to Rule 11 sanctions involves:

A

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims … and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; [and]
(3) the factual contentions are warranted on the evidence or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

49
Q

Before filing a motion for sanctions, the party must…

A

serve the motion on opposing counsel prior to filing it and give the party who counsel maintains to have violated any certifications 21 days to withdraw the pleadings.

50
Q

An insured whose clam has been paid in full (would/would not) be an indispensable party.

A

would not

51
Q

To be an indispensible party, the court must not be able to…

A

give complete relief in the party’s absence.

52
Q

The test for principal place of business of a corporation is…

A

where its “nerve center” is located, i.e. where the chief officers of the company make the central decisions that radiate out to the company.

53
Q

A federal court sitting in diversity will apply the choice of law rules of…

A

the state in which it is sitting.

54
Q

A defendant must serve an answer within…

A

21 days after being served with the summons and complaint.

55
Q

For counting purposes, day one excludes…

A

the day of the event, e.g. date of service.

56
Q

A party who is sued on a claim may serve a third-party summons and complaint on a new party who is…

A

is or may be liable to the defendant for all or part of the amount plaintiff sued defendant/third-party plaintiff for.

57
Q

The defendant has __ days after being served with the complaint & summons, to serve a third-party summons and complaint on the non party.

A
  1. After the 14 days, third-party plaintiff would need leave of court.
58
Q

In a contract action, the supreme court listed four factors to consider in evaluating whether a defendant could reasonably anticipate being sued in another state for purposes of minimum contacts for PJ:

A
  1. prior negotiations
  2. contemplated future consequences
  3. the terms of the contract
  4. the parties’ actual course of dealing
59
Q

What is the proper declaration before sworn testimony?

A

“I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).

(Signature)”.

60
Q

Federal courts have subject matter jurisdiction based on federal question where…

A

the plaintiff’s claim raises an issue of federal law.

61
Q

Although a plaintiff does not need to cite the specific statutory basis for federal question jurisdiction, she must plead…

A

sufficient facts to establish jurisdiction.

62
Q

Virginia choice-of-law principles require application of the law of the place of ___________ on questions of what the contract requires. Questions of contract _________, by contrast, are governed by the law of the place of contracting.

A

performance; formation

63
Q

The removal statute forbids removal in diversity cases if any defendant is…

A

a citizen of the forum state.

64
Q

Rule 60 permits relief from judgment and permits the court to reopen and correct the court’s error in allowing the case to proceed in the absence of…

A

subject matter jurisdiction.

65
Q

Although subject matter jurisdiction may not be collaterally challenged, it may be challenged at any time up until…

A

conclusion of the last available appeal in the case.

66
Q

The procedural steps to accomplish removal are…

A
  1. File a notice of removal
  2. that contains a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served” to date in the case.
  3. give notice promptly to all adverse parties and file a copy of the notice with the clerk of the state court, “which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.”
67
Q

If intenting to remove, a Virginia defendant should..

A

(1) file a pleading that qualifies as a responsive pleading in Virginia state court, and
(2) simultaneously or later within 30 days remove.
1. a defendant who has responded in state court will be treated as having responded in federal court.

68
Q

a claim for indemnity can be asserter using….

A

impleader.

69
Q

Impleader is often used for…

A

derivative claims arising from the same transaction.

70
Q

.Even though the federal joinder rules permit this impleader, it is also necessary to assure that the federal court would…

A

have subject matter jurisdiction over the claim that would be added through the impleader, or exercise supplemental jurisdiction. (note impleader plaintiff is a plaintiff for the purposes of the supplemental jurisdiction limitation)

71
Q

a counterclaim is compulsory when it…

A

arises out of the transaction or occurrence that is the subject matter of the original claim. Otherwise, a counterclaim is permissive.

72
Q

Supplemental jurisdiction cannot be exercised over….

A

a permissive counterclaim. This is because supplemental jurisdiction depends on the “same case or controversy”, whereas permissive counterclaims do not arise out of the same transaction or occurrence by definition.

73
Q

All claims, including counter, cross, and impleading claims, must have…

A

subject matter jurisdiction or supplemental jurisdiction.

74
Q

a party asserting a crossclaim may join, as independent or alternative, as many…

A

claims as it has against an opposing party.

75
Q

In order to file a crossclaim, the cross-claimant’s claims must…

A

Arise from the same transaction or occurrence as the original claim or of a counterclaim.

Federal Civil Procedure (19 decks)

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