Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

Civ Pro > 1-35 Questions > Flashcards

1-35 Questions Flashcards

(123 cards)

Start Studying
1
Q

What is the amount in controversy req. for diversity jurisdiction?

A

MUST EXCEED 75,000
ex: $75,000.01

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Who can remove a case?

A

ONLY defendants.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

If a plaintiff seeks to remove a case to federal court, what are their options?

A

they have none – they cannot remove a case to fed court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

If a plaintiff removes a case to fed court, and a defendant seeks to remand it, what should the court do?

A

Remand the case. Plaintiffs cannot remove cases to fed court from state.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q
A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

In civil procedure, what is contributory negligence considered?

A

An affirmative defense.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What must a defendant do to use the affirmative defense of contributory negligence?

A

Plead it.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

If a defendant is thinking about a potential counter claim that arises out of the same transaction/occurrence against a plaintiff, what is true about it and what is it called?

A

The driver MUST assert the claim as a compulsory counter claim.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

If a defendant fails to put forward a counter claim that Aries out of the same transaction or occurrences of a pedestrians claim, when can they bring it back up?

A

Never – the defendant forfeits it.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Who has the burden of proof for a contributory negligence claim?

A

The defendant.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What must be true about a defendant’s acts in a state for there to be minimum contacts?

A

1) The defendant must reach out to the state
2) and the action must arise out of or relate to those contacts.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What has SCOTUS determined to be a company’s PPOB?

A

Wherever its head quarters are. (Hertz)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What are the two requirements for supplemental jurisdiction?

A

1) FC must have original jurisdiction over one or more of the claims
2) the claim seeking supplemental jurisdiction must form part of the same case or controversy under Art 3

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

what has the supreme court interpreted “must form part of the same case or controversy under Art 3” to mean?

A

It must arise out of the common nucleus of operative facts.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

How does a lack of diversity affect a counter claim between defendants that a federal court considering using supplemental jurisdiction to hear the counter claim via the common nucleus of facts will consider??

A

Diversity is irrelevant in this context.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

If a plaintiff seeks to use supplemental jurisdiction over state law claims that derive from the same case or controversy (Common nucleus of facts) as an appropriate federal claim, what must be true about the underlying claim?

A

It must present a colorable claim under federal law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

If a federal claim is dismissed in fed court, and the court had previously used the fed claim to exercised supplemental jurisdiction over a CNF state law claims, what happens to the state law claims?

A

The court
2) in its discretion
3) can rely on FQ dismissal
4)as a reason to discontinue the state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

If a federal claim is dismissed in fed court, and the court had previously used the fed claim to exercise supplemental jurisdiction over a CNF state law claim, what must happens to the state law claim?

A

Nothing, the court still has supplemental jurisdiction over the claim even without the underlying Fed claim. But they may dismiss it in their discretion.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What type of doctrine is supplemental jurisdiction?

A

A discretionary one.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What does a A discretionary one mean in the context of supplemental jurisdiction?

A

Court is never obligated to excercise it.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

If a state law claim adequately forms part of the same case or controversy as a federal claim, does a federal court have to hear it in relation to supplemental jurisdiction?

A

No, Supp juris is up to their discretion.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

When is an action removable?

A

If it could have been originally filed in fed court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

If an action is commenced in state court, and thercomplaint is later timely amended to include a federal question, is it removable?

A

Yes.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

When does the forum defendant rule bar removal?

A

1) When a DEFENDANT seeks to remove a case to fed court from state court in the state which they reside,
2) diversity is the only basis for federal jurisdiction.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
If the forum defendant rule bars removal, what is the reason?
1) The defendant is domiciled in the state they seek to remove the case, and 2) diversity is the only basis for jurisdiction.
26
If defendants are served at different times, how much time do defendants get to remove and when does the clock run?
The defendants get 30 days to remove, and the clock runs from their individual time of service.
27
If removal statutes allow different acceptable removal periods based on when defendants are served, what happens to an earlier defendant's case when their removal time has lasped and a later defendant wants to remove the case to fed court?
Earlier defendant can consent to removal even when they failed to remove timely.
28
When can SCOTUS review a state court judgement?
When the decision rested on federal grounds.
29
If a state court issues a ruling based on both state and federal law, what is true?
SCOTUS can't review Fed claim because: 1) issue was decided 2) on adequate and independent state grounds
30
What must be true for complete diversity to be implicated?
The parties must be opposed in interest.
31
What do courts look to minimum contacts to satisfy?
The requirements of fair play and substantial justice.
32
What must be true to support general jurisdiction against a company?
A company would have to have continuous, systematic, and substantial contact with the state so as to call it home. Place of incorporation/place of headquarters will meet this.
33
If a suit seeks specific jurisfiction over a company based on its sales into a state, what must be true about the suit?
The suit must relate to the sales within the state.
34
Absent additional facts, what does the mere fact that you have gen. pers. juris. over a parent company in a state mean in regards to its subsidiary?
Nothing.
35
If an accident happens out of the country, and a US plaintiff seeks to use a company in a state's federal court, can they?
Yes, even if the accident happened out of the states, so long as there is sufficient purposeful contacts with the state.
36
If a defendant fails to raise personal jurisdiction in there first answer, is it waived?
No, if the defendant amends their answer and asserts personal jurisdiction within one week of the original answer.
37
How long does a defendant have to amend their complaint and include a lack of personal jurisdiction argument if their original complaint did not include it?
One week.
38
If a defendant did not include a lack of personal jurisdiction argument if their original complaint, and seek to amend it within one week, must they seek permission of the court?
No, it can be amended as a matter of course.
39
When is service within 100 miles of a courthouse where an action is pending sufficient to establish personal jurisdiction over a defendant?
When the defendant is joined under Rule 14/19, and was not the original defendant.
40
What must be true about service of an individual defendant through an employee?
The employee must be: 1) authorized by appointment to accept service OR 2) Authorized by law to accept service on behalf of D
41
What is true about rules around service of third parties at Defendant's place of employment?
There is no general authority to serve these people on behalf of D.
42
When can service on someone of suitable age and discretion on behalf of a defendant occur?
At Defendant's usual dwelling or abode.
43
If a third party is served at defendant's dwelling or place of abode, what must be true of them for it to be valid service?
They must be of: 1)suitable age 2) and discretion
44
When can a defendant raise a defense of insufficient service of process?
ASK SOMEONE/FIND OUT IF THERE IS A TIME LIMIT VIA THE MOTION ROUTE In their: 1) answer (responsive pleading) 2) by motion (even at trial) Under Rule 12, a defendant must object to insufficient service of process in their first response to the complaint, which is due within 21 days of service.
45
What is true about service of process in federal courts in relation to the service laws in the state they sit in?
It can exceed state bounds.
46
IF a service of process was not timely, how can a plaintiff survive a defendant's motion to dismiss?
By demonstraying 2) good cause 3) for their failure to serve timely.
47
What generally must be true for good cause to be found in failure to effect timely service?
Service must have been affected by something out of defendant's control.
48
What law governs statute of limitations?
State law.
49
How long is timely service of process allowed by FRCP?
90 days from filing the complaint.
50
If an attorney agrees to accept untimely service, is it valid?
Yes.
51
Is informal notice about a possible complaint sufficient to stop a statute of limitations issue?
No.
52
If a complaint is filed before a statute of limitations, and timely service is made after the SOL, what happens?
Nothing -- everything is timely.
53
If a defendant is serverd outside of the state where the district court is located, what law controls service?
The law of the state pursuant to where D was served.
54
Without a defendant's formal waiver of service, when does the defendant have an obligation to respond?
After formal service is made.
55
If a plaintiff fails to file proof of service, what is the service considered?
Valid -- filing proof of service does not affect validity.
56
Under federal Rules, is mailing an effective service of process to meet formal service requirements?
No.
57
Where is venue proper?
A judicial district where a substantial part of the events giving rise to the claim occurred
58
When is a forum non convenient dismissal appropriate?
Where there is a superior venue for an action outside of the federal system.
59
What law governs transfer of venue?
Federal law.
60
If a dispute has a valid forum selection clause, where must an action be transferred?
To the indicated federal district
61
If a dispute has a valid forum selection clause, can transfer to the indicated federal district ever be thwarted?
Only if there are compelling reasons not to transfer it there.
62
When are transfers to a different federal court house granted?
When it's: 1) in the interest of justice AND 2) for the convenience of the parties and witnesses
63
What is not a driving component of change of venue transfer analyisis?
Whether an action shares common questions of facts with similar actions pending in another state
64
If a defendant in a case with multiple defendant seeks removal, but another defendant refuses to join in on the petition, what result?
The removal will fail -- all defendants must join in.
65
In deciding whether to dismiss an action for forum non conveniens, what must a court consider?
1) The private and public interests 2) in keeping the action or dismissing it 3) so it can be brought in a foreign country.
66
What does forum non conveniens argue in plain English?
Not that a venue is improper, but there is a much more convenient forum forum where the action should be tried.
67
If forum non conveniens is not made in a pretrial motion, is it waived?
No.
68
Is a motion to dismiss for improper venue waived if not made in a pretrial motion?
Yes.
69
Can a court consider whether an alternative forum in a foreign country's law is less favorable to the plaintiff then where the action was filed?
Yes, but it is not dispositive.
70
How do courts treat plaintiff forum selection?
Deferentially.
71
If a foreign citizen plaintiff files an action, what is true about their forum choice?
It is not given the deference a domestic plaintiff gets.
72
In cases governed by erie, what is true?
Federal courts are to apply whatever law would be applied by the courts of the state in which a district court is sitting.
73
In a federal diversity action, how should a federal court determine which competing states laws should be applied in a case before it?
1) It must look to the choice of law rules 2) of the state in which it sits and 3) determine which of the competing state laws 4) would be applied in the state court action.
74
When does a Federal Rule of Civ Pro govern over a conflicting state rule of procedure?
Always, UNLESS it violates the Rules Enabling Act.
75
What does the Rules Enabling Act authorize?
The supreme court 2) to prescribe Fed Civ Pro rules 3) so long as 4) they don't abridge enlarge or modidy any substantive right
76
What can't a FRCP do if it is to be valid?
Abridge, enlarge, or modify any substantive right.
77
What governs over relation back rules if FRCP conflicts with state rules?
the law that provides the applicable statute of limitations allows relation back
78
If a federal rule and a state rule of civ pro conflict, what result?
Federal basically always controls.
79
What governs claim preclusion if a federal court has dismissed a similar actions pending in state court?
Federal common law.
80
What law governs the preclusive effect of a dismissal by a fed court sitting in diversity?
Federal common law.
81
If a federal court judgement is being asserted in state court for claim preclusion purposes, how is the prevlisve effect of the judgement determined?
By the law of the rendering jurisdiction, the federal court, not the receiving one (state court).
82
Is there general federal common law?
No
83
When does federal common law exist and in what context?
In the context of preclusive effect of FC judgements if the rendering court was Federal and sitting in diversity.
84
For claim preclusion, what must by true for a federal decision to be applicable on a state court?
The Fed court must be sitting in diversity.
85
When does a federal rule control over a conflicting state court rule?
When it is valid and on point.
86
What governs whether an action can proceed as a class action?
FRCP.
87
When will a federal court do an outcome determanitive test?
When a state law 2) conflicts with a judge made 3) federal practice
88
What is the general premise of Erie/Hanna?
FRCP will apply in diversity cases and displace state procedural rules while state substantive law is applied
89
When does a TRO expire?
After 14 days
90
When will a TRO be extended before a hearing?
On showing of good cause
91
When can a TRO be extended?
1) For good cause 2) if adverse party consents
92
When will a TRO be automatically extended?
It will not be -- there is no right/presumption of an automatic extension.
93
How will the posting of a bond effect a TRO extension?
It will not -- it is required to provide security for losses/costs a defendant may sustained if it later turns out defendant was wrongfully constrained.
94
For what purpose is a bond offered in a TRO?
It is required to provide security to Defs for losts incurred if it turns out D was wrongfully constrained.
95
If a TRO is extended, how long can it extended for?
A like period of time.
96
Is a TRO immediately appealable?
No, but once it goes on past 14 days (it gets extended) it is treated as a preliminary injunction by operation of law and becomes immediately appealable.
97
What must every order granting a TRO contain?
It must say: 1) why it was issued 2) what acts are restrained
98
Are preliminary injunctions immediately appeal able?
Yes
99
Can a TRO be issued without notifying the other party?
Yes, if the moving party submits an affidavit certifying it made reasonable efforts to give notice
100
What is a reason to grant a TRO?
DAmages would be inadequate to address the harm
101
What is the burden of pleading (in contrast to the burden of proof) in federal actions?
Procedural.
102
What type of law controls the burden of pleading?
FRCP
103
When may courts deny leave to amend?
When the claim to be added is futile.
104
When is a claim futile?
If it is barred by statute of limitations
105
What is relation back doctrine?
106
When does relation back doctrine apply?
When the failure to name someone in an original complaint was due to mistaken identity.
107
Does the closing of discovery foreclose amending a complaint to add a new party?
No.
108
If a party seeks to amend a complaint after discovery how is the fact that a new party to be added may be prejudiced get consideration?
It's a consideration, but not dispositive.
109
IF allegations against a competitor arise out of the same factual cirumstances outlined in the original complaint, how is it treated for relation back purposes?
As a neccessary but not sufficient on its own aspect to allow amendment via relating back doctrine.
110
When may a jury trial demand be included?
In a pleading.
111
When MUST a jury trial demand be satisfied by?
No later than 14 days after service of the last pleading directed to the issue on which a jury is sought
112
What is the current pleading standard?
Complaints must containt sufficient facts to state a claim that is plausible on its face.
113
For a pleading to be sufficent, what must it do more than?
It must do more than allow a court to infer the possibility of recovery.
114
What is the sufficent standard for preliminary injunctions?
Probable entitlement to relief?
115
What standard is probable entitlement to relief used for?
Preliminary injunctions.
116
What does the inclusion of legal conclusion in a complaint do?
Nothing -- it is not prohibited.
117
If a pleading contains a legal conclusion, is it automatically defective?
No.
118
What must a pleading contain?
sufficent facts in a short and plain statement of the claim showing that pleader is entitled to relief
119
What must factual contentions provided by an attorney have?
Evidentiary support.
120
If a factual contentions must have evidentiary support when presented by an attorney to the court, what can attorneys use?
Affidavits and documents provided by their clients.
121
When can an attorney not use Affidavits and documents provided by their clients as evidentiary support for factual contentions
1) WHen circumstances suggest 2) it would be unreasonable to do so 3) or that further inquiry is needed
122
What do attorneys certify to the court about factual assertions?
That they have evidentiary support, not that they are true.
123
In determining whether factual assertions have proper evidentiary support, what must attorneys do?
THey must act to the best of their knowledge,information and belief, formed after a reasonable inqury under the circumstances.

Civ Pro (3 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions