Civ Pro Flashcards

Question

Necessary and indispensable parties

Answer 1

Requirements Is absentee (nonparty) necessary and required? Can absentee be joined? Can case proceed without absentee? Is absentee (nonparty) necessary and required? Three tests Can complete relief be accorded among existing parties Will absentee’s interest be harmed (most likely) Will D be subject to multiple or inconsistent liability Joint tortfeasors are never necessary Can absentee be joined? Feasible if Personal jurisdiction over absentee and Federal subject matter jurisdiction over claim by or against absentee If cant be joined Ct decide whether to proceed or dismiss case If dismiss rather than to proceed without person is idensivke Indispensable = party needed for action to proceed rather than be dismissed Can case proceed without absentee? Ct considers whether Alternative forum available Actual likelihood of harm yo absentee and Can county shape relieved to avoid harm to absentee

Answer 2

any claim back against complaining party= usually by D gainst P Response required w/i 21 days of service Types Compulsory Arises from same transaction or occurrence Use it or lose Permissive Doe not arise from same transaction or occurrence Not lost - can sue in separate case SMJ is often the issue

Answer 3

claim against co-party Arise from same transaction or occurrence as the underlying action Not compulsory can be asserted in another case

Answer 4

Brings in new party Look For indemnity (full) or contribution (pro-rata) cases 3rd party shares part or whole liability Is permissive How brought in D must file a 3rd party complaint naming TPD and Have complaint formally served on the TPD Right oo implead w/i 14 days of serving the answer After 14 days ct permission is needed After TPD brought in May assert claims against P and P can assert claims against them that arise out of same T/O SMJ os required

Answer 5

stranger/ nonparty who wants to intervene Requirements First requirement: timely filed motion: do not want to slow it down Second requirement: nonparty has an interest relating to the prop or transaction that is subject of action Third requirement: interest disposing of the action may as a practicle matter impair or impede the unknown parties interest Fourth requirement: no one already representing nonparty’s interest Types Permissive : 1 common question of law or fact Usually allowed unless it would cause delay or prejudice to someone Need SMJ Would be considered a P for diversity case so limitation applies for supplemental jurisdiction

Answer 6

as a device designed to enable a party who might be exposed to multiple claims to money or property under the party’s control to settle the controversy in a single proceeding. ( multiple claims leading to inconsistent obligation) each claimant is a required party When there is not enough $ to cover the amount claimed by the number of clamants Interpleader can be brought by P or D Plaintiff- person holding it invoke actions to bring all claimants Defendant- law suit b/c want money or property A party can have an interest in the prop in dispute and still seek an interpleader Claimant’s interest do not have to be identical Claims do not have to be liquidated b4 interpleader action

Answer 7

Case in which reps sue on behalf of groups Initial requirements Numerosity Too many class members fo rpracticable joinder Commonality Must be some issue in common to all class members Typicality Reps claims are typical of claims of the class Representative adequate Class rep will fairly and adequately rep class Types Prejudice Class treatment necessary to prevent harm or prejudice Very rare Injunctive or declaratory relief D treated class members alike Cannot seek damages More likely on exam Common questions or damages Watch for this one on exam Show Common questions predominate over individual ones Class action is superior method for handling dispute 4 Ct must certify class Define class, claims, issues, and defenses Court appoints counsel Must fairly and adequately rep the interests of the class Certification is immediately appealable Notice to class Ct must notify class members that they are in class Individual notice to all reasonably identifiable members Notice paid for by rep ( tell them) Opt ot Will be bound by the judgment if dont opt out and Can enter a separate appearance through counsel only required in type 3 class actions No right to opt out in TYpe 1 or type 2 class actions Settlement of class action Parties can settle or dismiss a certified class action only by ct approval If type 3 ct also might refuse to approve the settlement unless members are given a second chance to opt out SMJ in class actions Assert right under fed law =FQ jurisdiction Diversity Only citizenship of class rep considered and her claim must exceed 75k Class action Fairness ACt (CAFA) Special grant of SMJ class=at least 100 members Any class member diverse from any D Aggregated claims exceed $5mill Any D may remove Local actions stay local

Answer 8

Names numbers and addresses of ppl with discoverable info if might be used to support claims or defense Documents (ESI, tangible things) if might be used to support claims or defenses Those that are nit in party’s control need not be disclosed Computation of damages Anyone claiming monetary relief Insurance coverage Parties must disclose any insurance that might cover all or part of judgment STILL DOESN’T MAKE ADMISSIBLE Penalty for failure to disclose Party can’t use undisclosed material unless harmless

Answer 9

Disclose at time directed by ct Identify EW who may provide testimony at trial Consulting experts need not be disclosed absent exceptional circumstances Contents of disclosures Testifying experts must be disclosed Written report by expert must be disclosed Draft reports and communication are protected work product After above, party may take the deposition of the EW Failure to disclose= can’t use EW in the case unless the failure was justified or harmless Pretrial disclosures No later than 30 days before trial, parties must give detailed info about their trial evidence ID of witness who will testify Esi Other things intend to introduce

Answer 10

Limit on deposition of nonprty - farthest required to travel is 100 mi from were reside/ employed Deposition of orgganization Notice a deposition of an organization describing the facts that she want to discover in deposition Organization must designate a person to testify on that matter Limits on depositions Unless ct orders otherwise: No more than 10 depositions Cannt depose same person No more than 7 hours Use of depositions To impeach For any purpose if deponent is an adverse party or For any purpose if deponent unavailable for trial unless abscence procures by party seeking to introduce evidence

Answer 11

Written questions to be answered in writing under oath Only to parties Limited to 25 ( unless ct order or stipulation) Must answer in 30 days Must answer interrogatories based upon information reasonably available If answers to interrogatories burden of finding the answer would be about the same for either party, responding party can allow requesting party to have access to records Contention interrogatories Interrogatories that inquire about legal contentions are permitted

Answer 12

Ct order required Parties only Or in parties custody or control Show Health must be in controversy Good cause Requesting a copy of report Person being examined can get copy Waive any doctor patient privilege with own doctir Produce allmedical reports by own doctor about same medical condition on request

Answer 13

Party can discover anything relevant to claim or defense and proportional to needs of the case Protective orders (ESI) D can more for protective order or object to discovery of ESI Undue costs are considerationf for ESI COurt my allocate costs if P show good cause to obtain despite costs Privilege Work product protection Material prepared in anticipation of litigation is protected Can ve prepared by the party herself or by any rep of a party Qualified vs absolute work product Discovery of work product Must show substantial need and undue hardship = qualified work product Opinion work product cannt be discovered Mental impressions, conclusions, opinions, or legal theories of the disclosing party and cannot be discovered Withholding discovery Must claim protection expressly Must prepare privilege log List material claim protected by date author recipient and privilege or protection claim

Answer 14

Ct order that D either Do something or Refrain from doing something Preserves status quo until trial Can not be issued ex parte Burden on applicant to show Irreparable harm Likely to win on the merits Balance of hardships Public interest Additional requirements Applicant must post a bond Must state its terms in specificity and describe in detail what D must do or refrain from doing and why it was issued In granting or denying , ct must make specific findings of fact and separate conclusions of law May be appealed as of right

Answer 15

preserving status quo until have hearing on the preliminary injunction TRO ex parte (without notice to other side) only if Applicant files paper under oath clearly showing that if TRO is not issued she will suffer immediate and irreparable harm is she has to wait Applicants lawyer certifies efforts to give oral or written notice to D or D’s lawyer If TRO issued applicant must post bond to cover other side’s costs and damages in case TRO was wrongful Contents State terms specifically Describe detail what D must do State why it was issued and state why the threatened injury to the P was irreparable Can not exceed 28 days ( 14 days + 14 day extension) Treated like a preliminary injunction after 28 days

Answer 16

Without ct permission P may withdraw case if D has not filed answers or motion for summary judgment With ct permission P makes motion for voluntary dismissal Ct’s discretion to grant or deny 1st voluntary is w/o prejudice 2nd voluntary dismissal extinguishes claim

Answer 17

P may seek D’s default if D doesn;t respond to complaint within: 21 days after service of process 60 days if process waived Not automatic P must move for entry of default D can respond late until default on record Default judgment Clerk cn enter default judgment if D made no response (has not appear) Claim for sum certain P gives affidavit of amount owed D is not a minor or incompetent Hearing and judge’s discretion if clerk can’t enter Recovery limited by amount in complaint Relief from default Set aside Good cause Viable defense

Answer 18

Rule 12(b)(6) Ct looks only to alegation of facts in complaint Do these facts (if true) state a plausible claim What judge considers Look only at fact on face of the complaint If these facts are true do they state a plausible claim Non = P hasnt stated a claim Judge might allow P to amend complaint to try to state claim

Answer 19

Must show No genuine dispute on a material fact and Is entitled to judgment as a matter of law Discretion to deny motion Measured by an abuse of discretion standard on appeal Any party can move for SJ no later than 30 days after close of discovery Motion can be for partial judgment Matters considered Can look at evidence Parties proffer evidence Affiavits Declarations Deposition testimony Interrogatory Views evidence in light most favorable to nonmoving party ‘Ruling on SJ can ve delayed if party needs moe time to respond May file a affidavit or declaration w/ ct stating what the evidence fould be Pleadings to support SJ Not considered evidence unless verified Admissions

Answer 20

21 days before the ct scheduling order, parties meet and confer to discuss production of required initial disclosures claims defenses settlement and preservation of discoverable if Present to ct detailed discovery plan no later than 14 days after conference Contents Views and proposals on timing issues about discovery of ESI including how will be produced and any probs retrieving

Answer 21

Mixed suits Actions at law = jury Actions in equity= judge Mixed suits Facts underlying damages tried first before jury Facts relating only to equity claim are tried to judge Jury must be demanded w/i 14 days of last pleading showing jury triable issue Last pleading addressing a jury issue is usually the answer Size jury should consist of 12 A state constitutionally might use a jury w/ 6 members in a criminal case No view as to whether any # less than 6 would suffice, we conclude that a jury of 6 satisfies the 7th amendment’s guarantee of trial by jury in civil cases At least 6 no more than 12 Verdict must be unanimous Challenging individual jurors Two kinds For cause and Permit a prospect juror to be rejected when partiality can be shown Peremptory Permit rejection of jjurors w/o any statement of reason and usually are based on an assumed partiality that may not be susceptible of proof Usually limited for 3 Must be used in race and general neutral manner Objection to jury instructions Judge must tell parties what instruction it will give and what instructions were refused Party must object on the record Objection must be before jury charged If raised on appela looking at clear error

Answer 22

General = who wins and what relief Clerk enters it Special verdict= jury answers questions, no bottom line (judge will give bottom line) The answers are consiste with each other and with the verdict judge approves judgment and clerk enters it Combo general and special = general with written questions If the answers are consistent with each other but inconsistent with the verdict ct may enter an appropriate jdgment consistent with answers If answers are inconsistent with each other and one or mor inconsistent with the general verdict no judgment may be entered Could order to reconsider or order new trial

Answer 23

Motion for judgment as a matter of law ( like summary judgment but once trial already started) Directed verdicts Judge grants the motion and enters judment Standard Reasonable ppl could not disagree on result Ct views evidence in light most favorable to non-moving party Motion can be made after the opposing party has been heard on the issue Renewed motion for JMOL Comes up after trial after jury returns verdict Same standards as JMOL Timing 28 days after entry of judgment Requirement for motion: a motion JMOL at trial must have been made New trial motion Timing same as RJMOL w/i 28 day Its a do over bc something at trial requires it Some reasons Judge gave erroeous jury instruction New evidence was discovred that could not have been discovered before with due diligence misconduct was committed by a juror, party or lawyer Judgment is against weight of evidence Damages are inadequate or excessive

Answer 24

Remittur or new trial Damage figure shocks the conscience P remits a portion of damges or undergoes new trial Both state and fed ct Aditur or new trial Damage figure must schock conscience Add to damages or D undergoes a new trial Not in fed ct

Answer 25

Final judgment is one that determines the merits oof the entire case Ask After making the ruling: does the trial ct have nything left to do on the merits of the case If yes = interlocutory order If no = judgment is final Remand orders with some minor nontestable exceptions are not reviewable on appeal Granting of a new trial is not a final judgent and thus not appealable

Answer 26

30 days after entry of final judgment Filed in district ct

Answer 27

Appeal of injunctions and TROs Orders related to injunctions may be appealed TRO is not injunction TRO extended beyond 28 days becomes preliminary injunction Interlocutory appeals act Allows for appeal of nonfinaal order if trial judge certifies controlling issue of law with substantial ground for differing opinons

Answer 28

Review of question of law Review de novo no deference given to trial ljudge on questions of law Questions of fact in a bench trial District judge determines questions of fact, appeals will affirm unless the findings are clearly erroneous Review of question of fact in JUry trial Jury finding of fact will e affirmed unless reasonable ppl could not have made that finding fact Review of discretionary matters Ct of appeals will affirm unless the district ct judge abused her discretion No reversal is required if the error is harmless , did not affect th eoutcome of the case

Answer 29

Whether a judgment already entered precludes litigation of any matters in another case If case 1 and case 2 are in diff judicial system the ct in case 2 applies the preclusion law of the judicial system that decided case 1

Answer 30

Claimant may sue only once to vidicate a claim Requirements Same claimant suing the same D Case 1 must have ended in a valid final judgment on the merits On merits unles Based on lack of jurisdiction Improper venue Failure to join an indispensable party Same claim Majority view : same transaction or occurrence Minority: primary rights view, separate claims for personal injury and property damage

Answer 31

Case 1 ended in valid final judgment on the merits Same issue actually litigated and determined in case 1 Issue was essential to judgment in case 1 Finding on the issue is basis for judgment Issue preclusion can be used only against previous party (or in privity with party) By whom is preclusion used Can it be used by someone who was not party to case 1 Nonmutual defensive issue preclusion Person asserting preclusion to avoid liability was not party to first case Person to who preclusion to be used against had full chance to ligate issue in case 1 Nonmutual offensive issue preclusion Person asserting preclusion to support claim was not party to first case Cant do this unless it would be fair Fairnes factors Party to be bound had a full and fair opportunity to litigate in case 1 Party to be bound had a strong incentive to litigate case 1 Party asserting issue precluion could have easily joined to case 1 There have been no inconsistent findings on the issue

Civ Pro Flashcards

(55 cards)