Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

BARRRR > Civ Pro > Flashcards

Civ Pro Flashcards

1
Q

What is subject matter Jan

A

Is the courts ability to hear and determine cases

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

What are the four types of SMJ

A
  1. Federal Question
  2. Diversity
  3. Supplemental Jxn
  4. Removal jxn

**SMJ cannot be waived!!

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

What is the well pleased complaint rule for federal question jxn?

A

Federal questions exists only when the federal law is presented on the face of the plaintiffs well pleaded complaint

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

When is diversity jxn met?

A

When the parties have complete diversity of citizenship between opposing parties and the amount in controversy exceeds $75,000.

**citizenship determined at the time filed

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

Where is a corporation a citizen?

A

A corporation is a citizen of every state which is had been incorporated and where it’s principal place of business is. (Nerve center - usually headquarters where high level official direct, control, and coordinate the activities of the corporation)

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

How is citizenship for diversity determined for class actions?

A

Determined by the citizenship of the named members of the class.

If more than 5mill diversity is met is any D is diverse with any P

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

Where are insurance companies domiciled?

A

Each start where members are domiciled.

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

What is supplemental jxn?

A

A DC with jurisdiction over a claim may exercise ‘supplemental jxn’ over additional claims over which the court would not independently have SMJ but are so related to the original claim that the additional claim forms part of the same case or controversy

Related Claim: if it arises out of the same common nucleus of operative fact such that all should be tried together in the same proceeding.

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

What can you NOT use supplemental JXN for?

A

Cannot use SMJ to add a claim against a non diverse party if the sole basis for SMJ is diversity.

Duhhh it would destroy diversity

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

What is removal jxn?

A

A (D) can move any action which could have been originally been brought in federal court, to federal court from state court.

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

How long does a D in a diversity case have to remove to fed court?

A

1 year after the action is filed

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

Where should the removed case be sent?

A

Should be removed to the DC for the district and division in which the state action was pending.

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

When can a D NOT remove a case?

A

A D can not remove a case if he is sued in his home state and the only basis for removal is diversity:

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

What are the three types of PJ?

A
  1. In personam jurisdiction
  2. In rem jurisdiction
  3. Quasi in rem jurisdiction
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

How may Fed Courts exercise PJ?

A

Fed courts may exercise PJ to the same extent as the courts of general jxn of the state in which the DC sits.

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

A court can only exercise PJ over a D if the D has minimum contacts with the state in which the court sits and the exercise of PJ would be fair and reasonable.

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

What is the bulge provision?

A

A fed court has PJ over a party who is served within a US district and not more than 100 miles from where the summons is issued, EVEN IF state law would not permit it.

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

What is in personal jxn?

A

The power of a court over and individual.

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

What is the diff in General and Specific jxn???

A

General: P can sue a D for anything generally

Specific: lawsuit that arises out of specific contacts with the state (tort in state, contacted or business in the state)

** the jxn must be both constitutional under the states long arm statues and constitutional under the due process clause (min contacts)

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

What are the bases for PJ?

A
  1. Voluntary presence
  2. Domicile
  3. Consent
  4. Long-arm Statutes
  5. Attachment (claim related to some property the (D) owns in another state
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

When determining fair ply and substantial justice, what does the court consider?

A
  1. The interest in the forum state in adjudication the matter
  2. The burden on the D appearing in the case
  3. The interest of the judicial system in the efficient resolution of controversies
  4. The shared interest of the states in promoting social policies
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is in rem jurisdiction?

A

The authority for courts to determine issues concerning the interests of all persons in a particular property (real and personal) (property must be present in the state)

** due process met if notice is reasonably calculated under the circumstances to appraise all interested parties of the pendant of the action and afford them an opportunity to present their objections.

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

What is quasi in rem jurisdiction?

A

The authority of a court to determine the interests of the parties regarding property located in the forum.

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

When is venue proper?

A
  1. Judicial district which all the D’s reside, if all the D’s reside in the same state. OR
  2. A judicial district in which “substantial part of the events or omissions” on which the claim is based OR where a substantial part of the property that is subject to the action is located.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Choice of law under federal question claim?

A

Both federal substantive and procedural law will control.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Choice of law federal diversity claim?

A

Substantive state law in which the DC is located

Procedural = federal law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

If venue is transferred what law should be applied?

A

The law of the transferor court

…..including states conflict of law.

28
Q

Who can serve process??

A

Must be 18 years old and a nonparty to the case.

29
Q

How is service of process made?

A

By personally serving the D. Can leave at the D’s usual place of abode with a person of suitable age and discretion who resides there or delivering to an agent appointed by the D or otherwise authorized by law to receive service.

30
Q

What should a complaint include?

A

A short and plain statement of the grounds to establish SMJ and of the claim establishing entitlement to relief and a demand for judgment for the relief sought.

31
Q

What are things that must be raised in pre-answer motion or they are waived?

A
  1. Lack of SMJ
  2. Lack of PJ
  3. Improper venue
  4. Insufficient process
  5. Insufficient service of process
  6. Failure to state a claim upon which relief can be granted
  7. Failure to join a necessary party
32
Q

When can you amend a pleading?

A

A party may amend a pleading one as a right within 21 days if not responsive pleading is required.

If a responsive pleading is required then within 21 days of being served a motion to dismiss or whichever is earlier.

***a court can freely give leave to amend when justice so requires

33
Q

What is a permissive joinder? (Rule 20)

A

P’s can be joined if they assert a right to relief jointly, severally or in the alternative with respect to or arising out of the same transactions or occurs me and any question of law or fact common to all P’s will arise in the action.

D’s can be joined same as above but a right of relief asserted against them.

34
Q

What is compulsory Joinder?

A

Party MUST be joined

Necessary party if complete relief cannot be provided to the existing parties without the other party or disposition without the person may impair the persons ability to protect his interest or without the person the parties might risk multiple or inconsistent obligations.

35
Q

What are the two types of intervention?

A

Intervention as a right and permissive intervention.

36
Q

What is intervention as a right?

A

A non party can intervene if federal statuses gives the right and they have an interest in the property or transactions being disputed, disposition might impair their interest, and their interest is not adequately represented by the current parties.

Can’t destroy diversity jxn

37
Q

What is permissive intervention?

A

A court may allow a party to intervene when they have a right under federal statute or their claim or defense shares a common question of fact or law.

Can’t destroy diversity jxn

38
Q

What is interpleader?

A

Allows a person to force all potential claimants to property into a single suit to determine who has a right to the property.

Fed statutory interpleader requires diversity and $500 or more on controversy.

39
Q

Big picture Joinder of claims

A

Permissive Joinder you can bring as many claims as you want

Counterclaims should be asserted in answer to the complaint or reply to a counterclaim.

Cross claims is suing a co-party

Impleader is a D against a nonparty for part or all of the D’a Lia Ulithi on an original claim

40
Q

What are the requirements for a class action?

A

CANT

Commonality: common question of law or fact
Adequacy: representatives must fairly and adequately protect the interests of the class
Numerosity: so numerous jointer is impracticable
Typicality: claims and defenses are typical of the class

AND Must be one of these three
1. Risk of prejudice would result without class
2. Share a general claim against opposing party
3. Have common legal or factual questions

41
Q

What are the three sets of disclosures?

A

Initial
Expert testimony (90 days before trial)
Pretrial disclosures (30 days before trial)

42
Q

A motion for JMOL made at the close of evidence and denied by the court may be renewed how many days within the jury returning a verdict?

A

28 days

43
Q

What is the due process requirement for PJ?

A

Satisfied if the nonresident D has sufficient minimum contacts with the forum state such that the action does not offend traditional notions of fair play and substantial justice.

44
Q

What does a P seeking a preliminary injunction need to show?

A

1- he is likely to succeed on the merits
2-he is likely to suffer irreparable harm in the absence of relief
3-the balance of equities is in his favor and
4- the injunction is in the best interests of the public

45
Q

How many interrogatories can be served on a party?

A

Not more than 25

46
Q

How long does a TRO stay in effect?

A

Limited time, no longer than 14 days unless good cause exists or adversary consents

47
Q

How long do you have to respond to a claim?

A

Within 21 days of service or process either by answer or pre-answer motion

48
Q

When can a claim for relief be dismissed?

A

If it fails to asset a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim

49
Q

When can JMOL be brought?

A

At any time before the case I submitted to the jury.

50
Q

What is required for claim preclusion?

A

1- a valid final judgment on the merits
2- sufficiently identical causes of action and
3- Sufficiently identical parties

51
Q

When do you file a notice of removal?

A

Within 30 days after receipt of service of the initial pleading or summons.

52
Q

When are initial disclosures due?

A

At or within 14 days after the parties Rule 36(f) conference (discovery conference) unless a different time is set by stipulation or court order.

53
Q

What is disclosed in expert testimony? (Due 90 days before trial)

A
  1. Statement of basis of opinions
  2. Facts and data considered in forming opinion
  3. Exhibits used to support summary
  4. Their qualifications
  5. Listing of all publications in the last 19 years
  6. Their compensation and
  7. All other cases they have testified at trial or deposition in the last four years
54
Q

What’s included in pretrial disclosures?
(At least 30 days before trial)

A

Witnesses and evidence they plan to present at trial other than for impeachment purposes.

55
Q

When is a request for admission deemed admitted?

A

If not answered within 30 days of being served

56
Q

When should summary judgement be granted?

A

If all pleadings, discovery, and disclosure show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.

***Can be made at any time until 30 days after the close of all discovery

57
Q

Jury verdicts must be unanimous unless stipulated otherwise and must be at least 6 jurors BUT can stipulate to less than 5

A
58
Q

What are the two types of JMOL?

A

BEFORE case goes to jury it’s a “motion for a directed verdict”

AFTER verdict and entry of judgment a party can renew the motion called “motion for judgement notwithstanding the verdict” (file no later that 28 days after entry of judgement)

59
Q

Claim preclusion definition

A

A valid final judgment on the merits of an action precludes a party from successive litigation of an identical claim in a subsequent action

Must be SAME parties

60
Q

Issue preclusion definition

A

Precludes the re-litigation of issues of fact or law that have already been necessarily determined in an earlier adjudication.

Doesn’t have to be same parties.

61
Q

What are possible sanctions when a party destroyed evidence depriving the other part of the evidences use in litigation?

A
  1. A presumption that the destroyed or lost evidence was unfavorable to the sanctioned party
  2. A jury instruction that it may or must presume the information was unfavorable to the party or an entry of a default judgment against the party
62
Q

What law must a federal court sitting in diversity jxn apply?

A

State substantive law and federal procedural law

63
Q

Standard for excluding a confession under due process clause?

A

1) whether the police subjected the suspect to coercive conduct and
2) whether the conduct was sufficient to overcome the will of the suspect

64
Q

What is a the bill of attainder (article 1)?

A

Prohibits the federal government and state legislative acts that inflict civil or criminal punishment on name persons or groups of persons without a judicial trial.

65
Q

Claim preclusion “they claimed a cop punched a foreign officer:

A

Claims
Parties
Final judgment
On the merits

66
Q

Issue preclusion is a SAFE bet:

A

Same issues
Actually litigated
Final judgment
Essential to the judgment

BARRRR (14 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions