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Civil Procedure > Comprehensive > Flashcards

Comprehensive Flashcards

1
Q

Domicile means ( __+__)

A

current dwelling + intent to remain indefinitely

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2
Q

what is the requirement to have “diversity jurisdiction?”

A

Either:
- citizens of different states; OR
- citizens of a state and a foreign country;

AND

  • amount of controversy exceeds $75,000
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3
Q

what are the two actions that cannot be brought in federal court under diversity jurisdiction?

A

probate, domestic relatioms

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4
Q

Generally, what type of diversity is required?

A

complete diversity

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5
Q

what must be satisfied for complete diversity between parties of different states?

A

none of the Ps are in same state as the Ds

all plaintiffs are different state from all defendants

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6
Q

to satisfy diversity, can the plaintiff’s state overlap w/ each other?

A

yes.

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7
Q

3 circumstances where “minimal” diversity is allwoed

A

federal interpleader act
class action w/ 100+ members & $5M
interstate mass tort w/ 75+ natural persons have died in one accident

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8
Q

for individuals, which state do they have citizenship in?

A

where they are domiciled

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9
Q

In diversity jurisdiction, if there is a “representative”, which state controls? Exceptions?

A

citizenship of the representative will control

exception:
- if decedent is involved, decedent’s state controls
- if minor/incompetent, they’re citizenship controls

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10
Q

Citizenship regarding “Class action”

A

citizenship of the representative or named party in the class action controls

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11
Q

citizenship of “corporation” is:

A
  • where the corporation is incorporated; AND
  • where it has its *PPOB (aka nerve center) - where CEO’s office is located
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12
Q

citizenship of “partnerships/unincorported associations”

A

every state where members are citizens

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13
Q

What type of action is permitted to create or Destroy diversity? exception?

A

moving or assignment of claim

as long as it’s not a SHAM, not PARTIAL assignment

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14
Q

under what circumstance can there be an aggregate of claims to meet the AIC?

A

only if : “one P v. one D”-> plaintiff can aggregate all her claims to exceed $75K

multiple Ps or multiple Ds NOT allowed

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15
Q

what are the 2 ways to get into federal court?

A
  • plaintiff directly files
  • removal by defendant
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16
Q

2 main types of federal SMJ

A
  • federal question
  • diversity
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17
Q

Who can remove (bring to fed court?)

A

defendant only

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18
Q

if there are multiple defendants, what must be done for a proper removal?

A

*all defendants must consent

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19
Q

what are two additional requirements for proper removal, compared to requirement for being in federal court in the first place?

A

1) must be removed within 1 year from when the state court action commenced (unless BF by P)

2) D(s) is not a citizen of the state where claim is brought

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20
Q

“same case or controversy means:

A

all claims arise out of the same transaction or occurence

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21
Q

What does “supplemental jurisdiction” allow?
what’s basic requirement?

A

a claim is allowed in federal court that normally not allowed in.
- “same transaction and occurence”

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22
Q

Define “compulsory counterclaim”
- effect if brought by D? by P?

A

a claim that arises out of the same transaction or occurrence as the opposing party’s claim.

If brought by D, most likely able to come in (regardless of whether it meats the condition individually)
If brought my P, most likely NOT able to come in, since it will be subject to all the exception for when plaintiff brings claims for supplimental jurisdiction

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23
Q

Define “permissive counterclaim”
- what needs to be done to be heard by fed court?

A

a claim by an opposing party that does NOT arise out of the same transaction or occurrence

must satisfy diversity jurisdiction independently (i.e. complete diversity + $75k)

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24
Q

a “cross claim” can satisfy supplemental jurisdiction if: (2)

A

it arises out of the same transaction or occurrence as the anchor claim; AND

asserted by D (not P)

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25
Q

what type of jurisdiction should I watch out for claim being brought my a plaintiff?

A

Under supplemental jurisdiction

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26
Q

how to bring a federal question case under supplemental jurisdiction

A

if it arises under the same transaction or occurrence -> can come in

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27
Q

how will a compulsory claim be admitted in as supplemental jurisdiction

A

as long as it arises out of same transaction of occurrence as anchor claim

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28
Q

In what situation can a plaintiff bring a claim under supplemental jurisdiction?

A

against a *single defendant

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29
Q

what are the ways to satisfy “general” In Personam jurisdiction?

A
  1. Through personal service
    - while D is physically present in the state
    - if D voluntarily and knowingly in the state
    Exception: if there through fraud, force, or only there bc of summons
  2. If D is domiciled in that state
  3. if D consents (express/implied/through agent)
  4. For corporation: where it’s “at home”
    - PPOB or state of incorporation
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30
Q

What are 2 important questions to ask in all “personal jurisdiction” cases?

A
  1. has the basis for exercising PJ over an out-of-D been “authorized by statute” or “by rule of court”?;
    AND
  2. is the particular basis for exercising PJ permitted by the due-process clause of the US constitution?
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31
Q

Can PJ be waived?

A

yes

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32
Q

How can a D waive PJ?

A

voluntarily litigating in the state

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33
Q

when must the lack of PJ be raised?
when must issue of improper venue be raised?

A

first opportunity

(pre-answer motion or answer, whichever gets filed first)

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34
Q

3 types of PJ

A

In Personam
In rem
Quasi In Rem

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35
Q

To satisfy PJ through “In Personam Jurisdiction” must asks:

A

whether there is “minimum contact” between D and the state. meaning, are there sufficient contact bt D and forum so that it would be consistent with the “traditional notions of fair play and substantial justice” to sue the D there?
courts look to see whether the D purposefully associated himself w/the forum in some way

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36
Q

Difference bt General PJ and Specific PJ?

A

general: allows P to assert any claim against D
specific: P claim must “arise out of/directly relate to” the D’s contact w/ the forum.

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37
Q

Federal Rules for service include:

A
  • in-hand personal delivery
  • leaving summons @ D’s dwelling w/ a person of suitable age & discretion;
  • delivery of summons to an authorized agent;
  • for persons in foreign countries, through registered mail with return receipt requested
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38
Q

When, if any, is service made by publication

A

in in rem actions, and when this is the best they can do to serve

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39
Q

when can a pleading be amended “as of right”?

A

within 21 of the service of the pleading; or w/I 21 days of the D’s response (if there is one)

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40
Q

Other then by “as of right” what other way can an amendment be allowed?

A

by leave of court
- must be freely given, but judge can deny for a good reason

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41
Q

For there to be a “federal question jurisdiction”, where should the federal question exist?

A

in the face of the plaintiff’s well-pleaded complaint

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42
Q

Define: Doctrine of Relation Back

A

An amendment of a pleading that usually would be barred due to SOL would be allowed under Relation Back, if timing of the original pleading was timely. (within the SOL)

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43
Q

2 requirements for Relation Back to be proper:

A

Amendment concerns the same conduct, transaction, or occurrence as the original pleading

  • the amendment cannot “surprise” a party. must have NOTICE
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44
Q

What consequences might an attorney be ordered to bear if filing was improper?

A

cost of baseless or improper filings

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45
Q

What’s a “necessary party”?

A

someone’s present is necessary for a just adjudication

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46
Q

Under Permissive Joinder, what 2 things must be satisfied to add additional plaintiffs?

A

1) the P’s claim must arise out of the “same transaction or occurrence; AND

2) there’s a common question of law or fact

(must have SMJ though!)

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47
Q

Under Permissive Joinder, what 2 things must be satisfied to add additional defendants?

A

1) the claim against them must arise out of the “same transaction or occurrence; AND

2) there’s a common question of law or fact

(must have SMJ)

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48
Q

what’s a pre-requisite that MUST be satisfied prior to joining parties?

A

SMJ

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49
Q

What is “compulsory” joinder?

A

must join in oder for claim to proceed

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50
Q

In order for a necessary party to join under compulsory jurisdiction, what must be true?

A

joinder is feasible

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51
Q

Under compulsory jurisdiction, “feasible” means

A

1) it will not deprive the court of SMJ; and
2) the court can assert PJ over the necessary party

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52
Q

Define: “Interpleader”

A

a way to bring everyone in so resolve competing claims to the same property

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53
Q

In order to meet the requirement for “Interpleader”
- jurisdictional $
- venue
- diversity

A

jurisdictional amount: $500 or more
Diversity: minimal diversity
venue: anywhere where any claimant resides

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54
Q

when must diversity have existed to bring diversity jurisdiction?

A

at time of filing*

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55
Q

bases for amount in controversy of $75K is based on :

A

good faith allegation

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56
Q

Diversity Jurisdiction

A
  • must be complete diversity
  • all plaintiffs are diff from all defendants
  • AIC is based on good faith allegation
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57
Q

removal based on diversity jurisdiction requires:

A

D does not reside in the state where action is brought

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58
Q

“general” In Personnel jurisdiction can be achieved by:

A
  • service while D is physically in the state knowingly, and voluntarily
  • if D is domiciled in state
  • if D consents (implied if not raising the issue)

For corporation:
- if “at home” meaning PPoB or state if incorporation.

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59
Q

specific in personam jurisdiction can arise by: (2)

A

D must have minimum contact w/ forum such that the exercise of jurisdiction is fair

Long-arm statute

60
Q

what does the “federal interpleader act” do?

A

Extends PJ beyond the state’s long arm statute
PJ over the entire US due to authorizing nationwide service of process

61
Q

What does the Bulge provision do?

A

Extends PJ beyond state’s long-arm statute.
allows service within100 miles of the federal courthouse for:
1) impleading third-party D under R14; and
2) joining necessary parties under R19

62
Q

What does “unusual provision” do?

A

Extends PJ beyond state’s long-arm statute.

arises when no state court has jurisdiction over D. fed court can exercise jurisdiction as long as D has sufficient contact w/ the US as a whole.
(most used with foreign D’s with no particular contact w/ a specific state)

63
Q

In rem jurisdiction

A

PJ against a piece of property if:
1. property is located in the state where you are suing
2. suit will settle everyone’s claim to the property

Can be any type of property

64
Q

Quasi-in rem

A

achieve personal jurisdiction through same “minimum contact”

65
Q

Long Arm statute allows:

A

PJ over defendant who engaged in some activity or caused some actin to occur within the state, that would allow PJ to extend

66
Q

4 requirements for class action

A
  1. numerosity: impractical to join all of them
  2. commonality: common q of law or fact to the class
  3. typicality: claim of the presentative is typical of the class
  4. adequacy: the representative must adequately protect the interest of the class
67
Q

vanue is proper where:

A
  • if all D are from the same state, any of the district where any of the D resides
  • where substantial part of the even or omission occured
  • substantial part of the property is located
68
Q

what substantive law will apply for DJ?

A

state substantive law, federal procedural law

69
Q

what substantive law apply for FQ?

A

federal substantive & procedural law

70
Q

What are the requirements for a plaintiff seeking a preliminary injunction?

A

ALL must be met for court to grant injunction:

  • likely to succeed on the merits
  • not granting will cause irreparable harm
  • balance of equities in her favor
  • injunction is in best interest of the pubic
71
Q

What are the required elements for a complaint?

A

short and simple
- establishing SMJ
- statement showing claimant is entitled to relief
- demand for judgment

72
Q

When can a party amend a pleading?

A

once within 21 days
after that, with leave of court

73
Q

When may a plaintiff join as a permissive joinder?

A
  • same T or O
  • same question of law or fact
74
Q

When must an objection to improper venue be raised?

A

pre-answer motion or answer, whichever is first

75
Q

What are the five bases for in personam jurisdiction?

A
  • voluntary presence
  • domicile
  • consent
  • long-arm statute
  • attachment
76
Q

What is a compulsory counterclaim?

A

claim made by the opposing party, arising out of the Same T or O.

77
Q

What are the three types of personal jurisdiction?

A

in personam
in rem
quasi in rem

78
Q

What are the three types of mandatory disclosures?

A

initial disclosures
expert testimony 90 days before trial
pretrial disclosures 30 days before trial`

79
Q

Who can make a demand for a trial by jury?

A

any party may make a written demand for trial by jury

80
Q

How many interrogatories may a party serve on another party?

A

25

81
Q

How long may a temporary restraining order remain in effect?

A

14 days

82
Q

How much time does a party have to respond to interrogatories?

A

30 days

83
Q

What three factors will a court consider when deciding to set aside a default judgment?

A

(i) Whether the defendant’s failure to act was willful;

(ii) Whether setting the default aside would prejudice the plaintiff; and

(iii) Whether the defendant has presented a meritorious claim

84
Q

How long does a defendant have to respond to a complaint?

A

21 days

85
Q

Who is responsible for serving the summons and complaint and when must it be served?

A

plaintiff, within 90 days of filing the complaint

86
Q

How many peremptory challenges and challenges for cause does a party have?

A

preemptory challenges: 3
challenges for cause: unlimited

87
Q

Which defenses are waived unless raised in the pre-answer motion or answer?

A

lack of PJ, improper venue, insufficient service, insufficient process

88
Q

What is a judgment as a matter of law?

A

claiming that the opposing party has insufficient evidence to reasonably support its claim

89
Q

When may a party bring a motion for judgment as a matter of law?

A

anytime before submitted to a jury

90
Q

What are six grounds for a court to grant a motion for a new trial?

A
  • evidence was overlooked that existed at the time of trial that would likely bring about a different outcome
  • prejudicial misconduct by counsel, judge, juror, or party
  • error at trial making judgment unfair
  • verdict that’s: based on false evidence, against clear weight of evidence, excessive or inadequate
91
Q

What are the two ways in which a defendant can consent to in personam jurisdiction?

A

implied (filing counter claim, driving vehicle in the state)
express (consent)

92
Q

What are the requirements of claim preclusion (aka res judicator)? Definition?

A

allowing the P to say “your honor we dont need to relitigate this since a jdugment was already made on it before. I should be able to use the same judgment for this 2nd law suit.”

same parties, same cause of action, final judgment rendered

93
Q

For the purposes of diversity jurisdiction, how is a corporation’s citizenship determined?

A

PPOB
state where its incorporated

94
Q

What is the “well-pleaded complaint rule?”

A

federal question is on the face of the plaintiff’s claim

95
Q

Discuss aggregation of claims for amount-in-controversy purposes for single plaintiff against single defendant

A

single plaintiff can aggregate all her claims to meet the AIC

96
Q

How is a corporation’s “principal place of business” determined?

A

nerve center, location of executive office

97
Q

Service in federal court is okay if its follow’s the law of the state

A
98
Q

service will always be okay under the following federal rules

A
  • personal service in hand
  • leaving the service at the D’s dwelling or usual place of abode, with a person suitable age & discretion
  • to an authorize agent
  • (for persons in foreign countries), by registered mail with a return receipt requested.
99
Q

service for “in rem” and “quasi in rem” are done by:

A

personal service
- must diligently locate all claimants to the property

if claimants cannot be located, then service by publication is allowed

100
Q

How long does D have to respond to a waiver of service?

A

30 days, or 60 if out of country

101
Q

what incentive does the defendant have for saying yes to a waiver of service?

A

deadline to submit answer extends from 21 days to 60 days. 90 days if out of country

102
Q

preliminary injunction requires:

A
  • notice to D
  • hearing
103
Q

federan venue is proper where?

A

if all Ds live in the same state, any district where a D resides

where substantial part of the events or omissions occurred

(where P lives is irrelevant)

104
Q

If transferred from one district w/ property venue to another, which law controls?

A

first venue

105
Q

If transferred from one district w/o property venue to another, which law controls?

A

second venue

106
Q

if the choice of the procedure would be “outcome” determinative (change the result) what law should apply?

A

state law

107
Q

when is the federal common law applied

A

when federal courts encounter important federal interests that are no covered by statutes

108
Q

when using state law in federal court, in what order and manner do federal courts used them?

A

follow precedent from highest state court, if no present, predict how the highest court will rule, and give respectful attention to the decisions of the lower court

109
Q

what kind of pleading does the federal rules require?

A

notice pleading
- short and plain statement showing that the claimant is entitled to relief

110
Q

What are situations that must be “specially” pleaded, instead of a simply notice pleading (I,e. short and simply)

A

claims of fraud or mistake
special damages

111
Q

motion of judgment on the pleadings

A

when both parties agree to the facts of the pleadings, just a matter of law

112
Q

Doctrine of relations back
- definition
- when it applies
- key concept

A

if the original pleading was filed when the SOL did not run out, the amendment can be made, even if its passed the SOL

applies when amendment relates to the same T or O as the original pleading
Notice - would the amendment surprise a party? if so, not allowed

113
Q

Whose a necessary party under compulsory joinder?

A

someone whose participation in the law suit is necessary for a just adjudication

114
Q

once a party is deemed necessary under compulsory joinder, what must then be considered?

A

whether joining that party is feasible

feasible if:
1) doesn’t destroy SMJ (complete diversity) and 2) has PJ over the neccessary party

115
Q

Define “intervention”

A

when an outsider volunteers to enter a lawsuit

116
Q

Two types of intervention

A

intervention as of right
permissive intervention (must get permission from court)

117
Q

Intervention must be “timely” means:

A

reasonable promptness

118
Q

Define: Interpleader

A

when multiple claimants claim the same property

119
Q

statutory interpleader requirments

A

AIC: $500
minimal diversity jurisdiction
service available through nationwide service of process
venue is proper in any district where any claimant resides

120
Q

under discovery, what are the three stages under mandatory discovery?

A

initial stage: names and addresses of ppl with potentially discoverable information, docs, insurance

expert witness
- names of ant expert witness that will be called in trial
- qualifications, publications, etc.

pretrial disclosures
- 30 days before trial
list of witnesses and exhibits
- if there an objection must be made within 14 days of disclosures

121
Q

what is the general rule for Scope of Discovery?

A

anything that might be admissible at trial or might lead to something that might be admissible at trial

122
Q

is the scope of discovery limited to admissible evidence?

A

no

123
Q

in terms of proportionality, what do courts consider when deciding discovery?

A

whether the burden or expense of discovery outweighs relevance

124
Q

What are 3 exceptions to discovery?

A

evidentiary privilege
work product
mental impressions of the lawyer

125
Q

what’s considered a work product under discovery?

A

a document or thing that was prepared in anticipation of a trial or litigation

documents prepared before a cause of action occurred is not considered work product

126
Q

what situation might overcome work-product being barred for discovery?

A

if there is a real need, which cannot be obtained elsewhere

127
Q

how many oral depositions allowed?

A

7 hrs a day/10 total

128
Q

interrogatories
- definitions
- how many allowed?
- how long do they have to respond?
- is there an alternative way to produce them?

A

questioned asked in writing, must be responded in writing
- 25 total, must respond in 30 days
- maybe produced by producing business records where the answer is contained in them

129
Q

summary judgment is granted when

A

“there is no genuine dispute” as matter of facts
AND
the movement is entitled to judgment was of law

130
Q

request for trial by jury can be made by who?
by what?
timing?

A

any party
pleading or separate motion
within 14 days after service of the last pleading

131
Q

define: motion for judgment as a matter of law (JMOL)

A

request for summary judgment after the trial begun

viewing the evidence in light most favorable to the non moving party, the evidence cannot support a verdict for that party

132
Q

Renewed motion for judgment asa matter of law

A

a motion for JMOL made at the closing
same standard. must have already filed a JMOL

133
Q

Define the doctrine of issue preclusion aka “collateral estoppel

A

precludes the relitigation of issues of fact or law that have already been necessarily determined in an earlier adjudication.

  1. same issue. 2. final judgment rendered already. 3. issue was the center of the judgment

Plaintiff can be diff in the 2nd claim as long as D is the same in both, as long as its fair

134
Q

appropriate time for removal

A

30 days

135
Q

If traditional methods are not met for PJ (i.e. consent, being present in the forum state, domiciled there), what must we then ask ourselves to determine whether there’s PJ?

A

long arm statute

136
Q

Due process clause for long arm & PJ?

A

if there’s minimum contact & its fair

“minimum contact”: is there purposeful availment
Arew the D’s contact w/ the forum state purposeful and substantial, such that the defendant should foresee being pulled into court in that forum -> purposeful availament is met

137
Q

specific jurisdiction is met through long arm statute if:

A

there is connection bt the D’s contact with the forums and the law suit itself

138
Q

Erie doctrine is triggered when

A

questions asks whether state law should be applied to federal court?

139
Q

how does Erie doctrine applies to:
- federal Q
- diversity

A

Feder Q - apply federal substantive & procedural law
diversity - apply state substantive & federal procedural law

140
Q

for purposes of Erie, a law is “substantive if”

A
  • a law that alters how damages are calculated in law suit
  • For SOL, use state SOL if diff from fed SOL and we’re sitting in discovery JX
  • laws that create evidentiary privilges (use state over fed)
141
Q

In order to get a TRO, party must

A
  • file an action for a TRO
  • must show that immediate and irreparable injury occur if court doesn’t halt
  • must show effort was made to give notice to opposing side, or reason why they coudlnt
    BUT court can grant w/o other side being present
142
Q

what must be met in order to bring a new party into the law suit after the SOL have passed?

A
  • new D knew that but-for a mistake, they would’ve been a party initially
  • same T or O
  • within 90 days
143
Q

steps for compulsory joinder

A
  1. determine whether the outside party the D is trying to bring in, is a necessary party
144
Q

a party is “necessary” for matters of compulsory joinder if

A

Either:
- the court cannot give complete leave absent the other party; or
- there is a danger that the absent party will be harmed legally; or
- risk of inconsistent judgment or possibility of double liability.

145
Q

when should a motion for a jury trial be filed?

A

within 14 days of the defendant answering the plaintiff’s complaint

Civil Procedure (3 decks)

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