Civ Pro Flashcards

Question

How is the citizenship of a human determined?

Answer 1

Citizenship of a person who is a US citizen is the one state in which she is domiciled Domicile is determined by: (1) physical presence in the new domicile; and (2) the intent to make that place your home for the indefinite future

Answer 2

Domicile is determined by: (1) physical presence in the new domicile; and (2) the intent to make that place your home for the indefinite future

Answer 3

Corporation is a citizen of any state or country in which it is incorporated AND of the one state or country in which it has its principal place of business Where is the PPB? It's the state from which the corporation's managers direct, coordinate, and control business activities - nerve center - headquarters

Answer 4

An unincorporated association takes on the citizenships of all of its members If it's a limited partnership, you include the citizenships of general and limited partners

Answer 5

You must sue them through a representative Representative's citizenship is irrelevant Use the citizenship of the dec'd, minor, or incompetent

Answer 6

The citizenship of the named representative(s) of the class is used

Answer 7

Only the claim itself is considered Litigation costs or interest are not included Whatever the P claims in good faith is ok unless it is clear to a legal certainty that she cannot recover more than $75K Any single P may aggregate all of her claims against a single defendant - and claims don't need to be related to each other Exception: joint claims - you use the total value of the claim - number of parties is irrelevant

Answer 8

No, can't aggregate these claims because there are multiple plaintiffs Can only aggregate claims of one P against one D

Answer 9

Yes, w joint claims, we look at total value of the claim; any one of these tortfeasors can be liable for the money

Answer 10

Equitable relief includes issuance of an injunction, specific performance, rescission of a contract, etc. Two tests - if either is met, most courts find that amount in controversy is satisfied One test looks at plaintiff's viewpoint = if granted, does the relief have a value of more than $75K to the P? Other test looks at D's viewpoint = if granted, will the relief requested by the P cost the D more than $75K? *Include both on exam*

Answer 11

Divorce, alimony, child custody, and actions to probate an estate

Answer 12

Yes, if the P changes domicile after the COA occurred but before suit is actually commenced/filed, that's fine That's a genuine change of citizenship, and diversity is ok

Answer 13

For there to be FQ jurisdiction, the P's claim must "arise under" federal law - in a well pleaded complaint Citizenship of parties is irrelevant Amount of controversy isn't relevant Well pleaded complaint rule = not enough that some fed issue is raised by the complaint; P's claim itself must arise under federal law Ask if P is enforcing a federal right = if yes, they get FQ

Answer 14

P sues D in state court - but D would prefer to litigate in fed court D might be able to remove the case to fed court If removal was improper, the fed court can remand the case to state court

Answer 15

You can remove a case when the case filed in state court could have originally been brought in fed court via diversity or FQ

Answer 16

D files notice of removal in fed court, stating grounds of removal, which means fed SMJ (diversity or FQ) Permission of the state or federal court is not required D attaches all documents that were served on her in the state action D then promptly serves a copy of the notice of removal on adverse parties and files a copy of the notice of removal in state court

Answer 17

D must remove no later than 30 days after service (not filing) of the first paper that shows the case is removable Usually, means no later than 30 days of service of process

Answer 18

All Ds who have been served w process must join in removal Need not join in the same document - they can file separate notices of removal If Ds are served at different times, and a later served D initiates timely removal, the earlier served D may join in the removal even though her 30-day period for initiating removal may have expired

Answer 19

Yes but not alone; if D1 and D2 remove now, they can do that; new 30 day window w service on D2

Answer 20

NO - never This is true even if the D files a counterclaim against the P that, by itself, could be heard in federal court

Answer 21

The case should not be removed if any D is a citizen of the forum state (in-state D rule); AND The case should not be removed more than one year after the case was filed in state court

Answer 22

In-state defendant limitation applies bc D2 is citizen of AL and we’re in AL state court, so case should not be removed; if it is removed, it should be remanded and kicked back

Answer 23

30 days to remove from the time it becomes removable And then no removal more than 1 year after case is filed (in diversity cases) But exception: 1-year restriction doesn't apply if D originally joined to prevent removal

Answer 24

To the federal district court "embracing' the state court where the case was filed Doesn't matter if this venue would have been proper under the venue statutes

Answer 25

She must move to remand no later than 30 days after the filing of the notice of removal If P fails to do so, she waives the right to have the case remanded to state court and the case will stay in federal court This would be for things like the citizens have diversity and $ so there's no problem with SMJ, but one of the D's was an in-state D so you never should have removed in the first place (this and the one year time limit)

Answer 26

There is no time limit on ordering remand An objection to SMJ is never waived, and a court without SMJ is powerless to act on the case

Answer 27

A form of federal SMJ Diversity and FQ SMJ get cases into federal court Supplemental jurisdiction gets CLAIMS into a federal case, even though the claims can't use diversity of citizenship or FQ SMJ So you start with a claim that's already in fed court based on diversity or FQ, and you want to add in another claim Federal court must have SMJ over every single claim in a case *And remember, if there is just one P and one D, then you don't need supp J because you can aggregate those claims in amount and type, even if they're completely different things*

Answer 28

Assess whether the claim to be joined satisfies the common nucleus test If so, ask whether the case got into fed court under diversity or FQ - If FQ, the limitation does not apply, so supplemental jurisdiction is ok - If it was diversity, then apply the limitation. The limitation is as follows. There is no supplement jurisdiction if the claim: -- Is asserted by a plaintiff; UNLESS -- There are multiple plaintiffs, and the claim by one of them doesn't meet the amount in controversy requirement

Answer 29

Test used to determine if a claim can be added as supplemental jurisdiction Assess whether the claim shares a common nucleus of operative fact with the claim that satisfied federal SMJ When a claim arises from the same transaction or occurrence as the underlying case - but can be broader than that If claim meets this test, then you ask whether original claim got in under FQ or diversity - if FQ, you're good to go with this claim - if diversity, then if P is bringing new claim, it doesn't get Supp J, unless it falls into the exception where multiple Ps are in a diversity claim and one of their cases doesn't meet amount in controversy, then it could get Supp J

Answer 30

Generally, in diversity cases, claims by Ps can't invoke supplemental jurisdiction But exception: applies when there are multiple Ps, and the claim by one of them doesn't meet the amount in controversy requirement Any other time a P has an additional claim in a diversity case, it can't invoke Supp J, so the claim must satisfy diversity or FQ SMJ

Answer 31

Yes, meets test; limitation doesn’t apply bc there are multiple Ps and one of their claims doesn’t meet the amount in controversy requirement

Answer 32

Yes, this is not a supp juris hypo; it’s a diversity hypo; we simply aggregate the claims; one P, one D, we simply add the claims even though the amounts are diff and they could be totally unrelated

Answer 33

Step 1: Is there a fed law (Const, fed statute, FRCP, FRE) on point that directly conflicts with state law? If so, you apply that federal law so long as it's valid If it's a FRCP, it's presumptively valid if it's arguably procedural, and FRCPs always are - so always apply the FRCP - Step 2: If there is no fed law on point, fed judge must apply state law if issue is substantive The 5 clearly substantive issues (so court must apply state law): conflict or choice of law rules; elements of a claim or defense; SOLs; tolling of SOLs; standard for granting a new trial because the jury's award was excessive or inadequate Fed court must follow state law in the above cases if there's no federal law on point (For SOL, remember that then there is a determination of WHICH state's SOL applies in a conflict of choice analysis) - Step 3: If there's no fed law on point and the issue isn't one of the above five, fed judge must determine whether issue is substantive Some factors: (1) outcome determinative = would applying or ignoring the state rule affect the outcome of the case? If so, probably substantive and should use state law (2) balance interest factors = does either system have a strong interest in having its rule applied? One with greater interest should have its rule applied (3) avoid forum shopping = If fed court ignores state law, will it cause parties to flock to fed court? If so, should probably apply state law

Answer 34

Exactly where to bring it In which federal court to bring it

Answer 35

Can lay venue in any district where: All D's reside (residential venue); venue proper in any district where a D resides as long as all Ds reside within that state or A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue)

Answer 36

No, doesn't matter - only Ds and COA matter

Answer 37

A human "resides" in the federal district where she is domiciled (like in PJ, state where she is domiciled) A corporation resides in all districts where it is subject to PJ for the case (so place of incorporation and PPB; or locations of all its members for unincorporated business)

Answer 38

Unlike removal and remand, which is going from state to federal, transfer is going between federal courts Transferee must be a proper venue and have PJ over the D - and generally those must be true without waiver by the D But exception: under a transfer statute, court can transfer to any district, even an improper venue, if all parties consent and the court finds cause for the transferor - unlikely though that a P would consent to transfer because they picked the venue in the first place

Answer 39

No, venue and PJ generally must be proper in the transferee court without waiver by the D - but exception where transfer from a proper venue

Answer 40

If original district is a proper venue, court can order transfer based on convenience of parties, witnesses, and in interests of justice Because transfer overrides P's choice of forum and P chose a proper venue, the burden is on the person seeking transfer (usually D) Court will consider both public and private factors showing that another court is the center of gravity for the case Public: court will consider things like what law applies, what community should be burdened w jury service, desire to keep a local controversy in local court Private: convenience for parties, evidence Choice of law: when a diversity case is filed in a proper venue but the court orders transfer, the transferee court must apply the choice of law rules of the transferor court (but check for forum selection clauses) Forum selection clause: provision in which the parties agree that a dispute bt them will be litigated in a partiucular place; if one party sues another in violation of the FSC, D may seek to enforce the FSC through a motion to transfer Court will usually uphold unless unrsble; federal law governs transfer so a fed court may enforce an FSC clause even though a state court in that forum wouldn't When there's a valid FSC, only public interest factors are considered for transfer; and When transfer is to enforce an FSC, the transferee court will apply its own choice of law rules (and remember that under Erie, the fed court is required to apply the choice of law rules of the state in which it is located)

Answer 41

When a diversity case is filed in a proper venue but the court orders transfer, the transferee court must apply the choice of law rules of the transferor court (but check for forum selection clauses)

Answer 42

Forum selection clause: provision in which the parties agree that a dispute bt them will be litigated in a partiucular place; if one party sues another in violation of the FSC, D may seek to enforce the FSC through a motion to transfer Court will usually uphold unless unrsble; federal law governs transfer so a fed court may enforce an FSC clause even though a state court in that forum wouldn't When there's a valid FSC, only public interest factors are considered for transfer; and When transfer is to enforce an FSC, the transferee court will apply its own choice of law rules (and remember that under Erie, the fed court is required to apply the choice of law rules of the state in which it is located)

Answer 43

If original district is an improper venue, the court may transfer in the interest of justice or dismiss When the federal court transfers a diversity case because the original venue was improper, the transferee applies its own choice of law rules - not the choice of law rules of the transferor court (where it's coming from)

Answer 44

FNC applies when there is another court that is the center of gravity for the case But here, the court can't transfer the case tot hat court because it is in a different judicial system Court invoking FNC will stay (hold it in abeyance) or dismiss the case Whether court dismisses or stays, idea is that the P will then sue in the other court, and the court may impose conditions on the party requesting transfer such as requiring her to waive service of process FNC decision is based on the same public and private factors as transfer above Other court must be available and "adequate" Usually the forum will be adequate unless the P can get no remedy there

Answer 45

The filing of the complaint

Answer 46

(1) statement of grounds of SMJ (doesn't need to allege grounds for PJ or venue) (2) a short and plain statement of the claim showing the P is entitled to relief (3) demand for relief sought P must plead sufficient facts to support a plausible claim Fraud, mistake, and special damages must be pleaded with particularity or specificity

Answer 47

Fraud, mistake, and special damages must be pleaded with particularity or specificity

Answer 48

by motion or by answer to avoid default, must do one of these two things no later than 21 days after being served w process If D waived service, D has 60 days from when P mailed the waiver form to respond

Answer 49

Must either make a motion or answer within 21 days after being served w process If D waived service, the D has 60 days from when the P mailed the waiver form to respond

Answer 50

Used when the complaint is so vague or ambiguious the D simply cannot respond Must make this motion before answering

Answer 51

Asks the court to remove redundant or immaterial things from a pleading (a complaint, an answer, etc.) Any party can move to strike Ex: a D moves to strike allegations of fraud; or a P moves to strike an affirmative defense

Answer 52

Lack of PJ Improper venue Improper process; and Improper service of process (3 Ps and a V)

Answer 53

Failure to state a claim Failure to join an indispensable party ^ Can be made as late as at trial Lack of SMJ may be raised at ANY time - never waived And if a court determines there is no SMJ, it must dismiss or remand if the case had been removed from state court

Answer 54

Serve her answer no later than 14 days after notice of the denial

Answer 55

No, they are requests for a court order

Answer 56

(1) Respond to allegations in the complaint - Admit/deny some or all of the allegations, or state that she has insufficient knowledge to admit or deny - Failure to deny an allegation is an admission except regarding the amount of damages (2) Raise affirmative defenses - Inject a new fact into the case that would allow the D to win - SOL; SOF; res judicata; self-defense, etc. - all Rule 12(b) defenses can be pleaded as affirmative defenses - If a D fails to assert an affirmative defense in the answer, the court may treat it as waived subject to the timing rules in Rule 12

Answer 57

By Plaintiff: P has right to amend her complaint once no later than 21 days after the D serves her first Rule 12 response By Defendant: D has a right to amend his answer once no later than 21 days of serving it And note: if D's first response was an answer in which he forgot to raise waivable defenses and forgot to raise an affirmative defense, he has a right to amend his answer to include the waivable defenses and affirmative defense

Answer 58

After the period to amend as of right, the amending party must seek leave of court (or get the written consent of the opposing party) Court will grant leave to amend if "justice so requires" Factors courts look to: length of delay, prejudice to other party, futility of amendment

Answer 59

Variance comes up when the evidence at trial doesn't match what was pleaded If other party fails to object at trial, party introducing the evidence may move to amend the complaint to conform to the evidence

Answer 60

bc D didn’t object, that evidence is allowed in and then the P may move to amend the complaint to include the assault

Answer 61

An amended pleading relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleading Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a SOL problem

Answer 62

(1) the amendment concerns the same conduct, transaction, or occurrence as the original; (2) the D had such knowledge of the case such that she will be able to avoid prejudice; and (3) the D knew or should have known that, but for a mistake, she would have been named originally The knowledge in the last two points must have come within the period for service of process (90 days after the filing of the complaint) Applies when the P sued the wrong D first, but the right D knew about it

Answer 63

Supp pleadings set forth things that happened after the pleadings were filed There is no right to file a supp pleading You must make a motion - in discretion of court whether it's granted or not

Answer 64

no, it must be a motion for leave to file a supp pleading; not an amendment; about an event that occurred after the complaint had already been filed

Answer 65

Applies to all papers except discovery

Answer 66

When a lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after rsble inquiry: (1) the paper is not for an improper purpose (2) the legal contentions are warranted by law or a nonfrivolous argument for a law change; and (3) the factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation

Answer 67

Before imposing a sanction regardless of who filed the motion, the court must give the sanctioned party an opportunity to be heard

Answer 68

The money is often paid to the court, not to the other party

Answer 69

The opposing party can't immediately file a motion for sanctions Rather, she serves the motion on the other parties but does not file with the court yet Party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions If she doesn't fix it, then the motion can be filed with the court

Answer 70

he answered within 14 days after notice of the denial so he’s timely; but he waived PJ bc it wasn’t in his first Rule 12 response

Answer 71

(1) joinder must be allowed by the FRCP; and (2) there must be SMJ over the case

Answer 72

Yes, under the FRCP, a P may join any additional claim she against that adverse party - even if the additional claim is unrelated to the original claim BUT there MUST be SMJ over the claim

Answer 73

Yes, a P can have as many claims as she wants against a D, even if they aren't connected per the FRCP For SMJ, a single P can aggregate as many claims as she wants against a single D, and those amounts can meet the amount in controversy requirement - and then there is diversity here too, so we have SMJ

Answer 74

Rule is that the claims by multiple Ps or against multiple Ds must: (1) arise from the same transaction or occurrence; and (2) raise at least one common question of law or fact

Answer 75

joinder is procedurally fine bc the three claims arise from the same transaction or occurrence and raise one question of who was neg; but then we need to figure out SMJ and here we don’t know citizenships or amount in controversy so unsure

Answer 76

unsure about SMJ; but joinder would procedurally be ok; for same reasons as above; arise from same transaction or occurrence and raise at least one common question of who is neg

Answer 77

Is the absentee necessary (required)? If the absentee is necessary, can the absentee be joined? If the absentee can't be joined, can the case proceed anyway? In short: necessary? feasible? what if not feasible?

Answer 78

Without the absentee, the court can't accord complete relief among the existing parties (worried about multiple suits); or The absentee's interest may be harmed if she is not joined (most common on exam); or The absentee claims an interest that subjects a party (usually the D) to a risk of multiple obligations *Remember that joint tortfeasors are never necessary*

Answer 79

Yes - we’re worried about harm to the absentee; if Rich wins this case, your stock gets cancelled, you can get hurt; so to avoid that hurt, we’re going to call you necessary and bring you into the case

Answer 80

There is PJ over the absentee, and There will be federal SMJ over the claim by or against the absentee - in determining whether the claim invokes diversity, the court aligns the absentee as a P or D based on the absentee's interest --> If joinder of the absentee if feasible, the absentee is simply joined to the case

Answer 81

See if they are necessary (most likely, if their interests will be hurt; or, if no complete relief otherwise, or risk of multiple obligations) Then if necessary, see if joinder is feasible (PJ and SMJ) If yes, add them in If no, examine factors (alternative forum, likelihood of harm, relief to avoid harm) and either proceed without them or dismiss case

Answer 82

Court must then determine whether to proceed without the absentee or dismiss the entire case Factors: is there an alternative forum available? (like state court) what is the actual likelihood of harm to absentee? can court shape relief to avoid that harm to the absentee If party isn't necessary, they're called "indispensible"

Answer 83

A counterclaim is a claim against an opposing party Once one party asserts a claim against another party, they are opposing parties Any claim back against that party is a counterclaim Usually, it's a claim by a D against a P Counterclaim is part of D's answer After D serves a counterclaim against P, P must respond under Rule 12 within 21 days of service of the counterclaim

Answer 84

A compulsory counterclaim is one that arises from the same T/O as the P's claim Unless counterclaimant has already filed the claim in another case, she must file the compulsory counterclaim in the pending case or the claim is waived If you don't use it, you lose it

Answer 85

Because this was a compulsory counterclaim and B failed to assert it

Answer 86

No - here, B was never required to answer because she got the case dismissed. So she never had to assert the counterclaim. A counterclaim goes in your answer.

Answer 87

One that does not arise from the same T/O as the P's claim Party is not required to file it in this case and can sue on the claim in a separate case

Answer 88

ALWAYS check for SMJ so see if claim can invoke diversity or FQ If neither works, check to see if there is supp jurisdiction

Answer 89

A crossclaim is a claim against a coparty Must arise from the same T/O as the underlying action Not compulsory - can be asserted in another case

Answer 90

yes, SMJ over that compulsory counterclaim bc it invokes diversity; NY against CA and amount in controversy

Answer 91

doesn’t invoke a FQ, and doesn’t invoke diversity, bc it’s by NY against NY; so no SMJ and can’t come in on those grounds

Answer 92

yes, supp juris; meets common nucleus test bc arises from same TO as underlying case; and bc this case got into fed ct on diversity, limitation applies, but this is a claim by a D and the limitation only applies to claims by P, so supp juris is fine

Answer 93

counterclaim bc it’s against an opposing party; once one asserts a cross claim against the other they are now opposing parties so the claim back has to be a counterclaim

Answer 94

An impleader claim (also called third-party claim) is one where a defending party is bringing in a new party As to the impleader claim, the party bringing the claim is called a third-party P and the new party is called a third-party D Impleader claim is used to shift to the TPD the liability that the D will owe to the P so if the D is found to be liable to the P, he will try to get the TPD to pay all or part of his own liability (look for indemnity or contribution)

Answer 95

Indemnity shifts liability completely (so the TPD must cover the full claim)

Answer 96

Contribution shifts it pro-rata (so the TPD must cover a pro-rata portion of the claim)

Answer 97

To implead a third party, the D must: (1) file a third-party complaint naming the TPD and (2) have that complaint formally served (that is, served like an original complaint) on the TPD There is a right to implead within 14 days of serving the answer After that, court permission is needed

Answer 98

Yes, after the TPD is joined, the P may assert claims against the TPD, and the TPD may assert claims against the P, that arise out of the T/O of the underlying case

Answer 99

YES ALWAYS Assess each claim separately for SMJ Try diversity or FQ first Then try supp juris Remember limitation for diversity cases: limitation applies only to claims by the P, if at all, and a TPD is not a P

Answer 100

yes, SMJ over impleader, bc it’s a claim by a KS against MO; exceeds 75K

Answer 101

doesn’t matter that the P and the TPD are citizens of same state; P isn’t a party to this claim so her citizenship is irrelevant; look at each claim individually; diversity and amount are fine

Answer 102

common nucleus: meets this test bc the claim can only be asserted if it arises out of TO, by definition; limitation: no, bc this is a claim by TPD and the limitation only takes away supp juris by claims by Ps; so gets supp juris

Answer 103

meets common nucleus test, but this is limitation in action; got into fed court under diversity and this is a claim by a P; so no supp juris; only time they get it is hypo 5D (multiple Ps and one doesn't meet amount in controversy) and this isn’t that

Answer 104

A nonparty absentee uses intervention to bring herself into the claim She chooses to come in either as a P to assert a claim or as a D to defend a claim Court may realign party if it thinks it came in on wrong side Application to intervene must be "timely" Intervention can be "of right" or "permissive"

Answer 105

If absentee's interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties, intervention is "of right" but make sure to have SMJ!

Answer 106

If absentee's claim or defense and the pending case have at least one common question of law or fact, intervention would be permissive and discretionary w court Usually allowed unless it would cause delay or prejudice to someone But make sure to have SMJ!

Answer 107

Interpleader applies if separate actions might result in double liability against a stakeholder Interpleader suit permits a person/stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which, if any, has the valid claim to it Rule 22 interpleader: requires (1) compelte diversity bt the stakeholder and all adverse claimants, and in excess of $75K in issue, or (2) a federal question claim Statutory interpleader: requires only diversity bt any two contending claimants and $500 to be in issue

Answer 108

Class action is a case in which representatives sue on behalf of a group Requirements (all four must be demonstrated): Numerosity = there are too many class members for practicable joinder Commonality = some issue in common to all class members Typicality = class rep's claims are typical of the claims of the class Representative Adequate = class rep will fairly and adequately represent the class

Answer 109

Type 1: Prejudice = class treatment is necessary to avoid harm (prejudice) either to class members or to the non-class party = rare Type 2: injunctive or declaratory relief = seeks n injunction or declaratory judgment bc the D treated the class members alike = generally cannot seek damages Ex: group claims employer is wrongfully refusing to provide them w vacation time as required by law; seeks injunction requiring employer to provider vacation time Type 3: common question or damages = (1) common questions must predominate over individual questions; and (2) the class action is a superior method to handle dispute = mass torts Ex: bus crash; individual questions about damages but common question about if bus driver was negligent may predominate; superior to 80 different suits for each passenger

Answer 110

Court must grant motion to certify it as a class action And must define the class and the class claims, issues, and defenses; and Appoint class counsel, who must fairly and adequately represent the interests of the class

Answer 111

Notice not required in Type 1 or Type 2 In Type 3, court must notify class members that they are in a class Means individual notice to all rsbly identifiable members Notice, paid for by rep, tells class members things like: - they can opt out - they will be bound by the judgment if they don't opt out; and - can enter a separate appearance through counsel

Answer 112

no - all class members are bound by the judgment But in type 3 they can opt out and then they are not bound

Answer 113

Parties can settle or dismiss a certified class action only with court approval In all three types, court must give notice to the class members to get their feedback on whether the case should be settled or dismissed If it's a type 3 class, the court also might refuse to approve the settlement unless members are given a second chance to opt out

Answer 114

if class action asserts right under federal law, FQ juris may be used For diversity cases, only the citizenship of the class rep is considered, and her claim must exceed $75K - if she's good, then everyone else is good and ignored

Answer 115

(1) there are at least 100 members; (2) any class member, not just the rep, is of diverse citizenship from any defendant; and (3) the aggregated claims of the class exceed $5 million Also, any one defendant, even an in-state defendant, may remove the case from state to federal court

Answer 116

Information that each party must give to other parties - even though the other parties haven't asked for it Within 14 days of the Rule 26(f) conference, each party must disclose certain information (1) Names, numbers, and address of people w discoverable information if info might be used to support claim or defense (2) Documents (ESI, tangible things) if might be used to support claims or defenses (3) computation of damages (4) insurance coverage - that might cover all or part of the judgment

Answer 117

Unless there's a court order to the contrary, within 14 days of the Rule 26(f) conference, each party must disclose certain information

Answer 118

no, bc this will not be used to support the company’s case

Answer 119

If party fails to disclose material that was required to be disclosed, that party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless

Answer 120

Each party must identify expert witnesses who may provide testimony at trial Consulting experts and their opinions are generally not discoverable absent exceptional circumstances As to an EW who may be used at trial, each party must generally disclose to the other parties the identity of and written report prepared by the EW

Answer 121

Written report must include: Opinions that the EW will express The bases for the opinions The facts used to form the opinions The EW's qualifications How much the EW is being paid *Earlier drafts of the EW report and communications bt the lawyer and the EW are work product

Answer 122

The party cannot use the EW in the case unless the failure was justified or harmless

Answer 123

No later than 30 days before trial, the parties must give detailed information about their trial evidence, including identity of witnesses who will testify, documents, ESI, other things they intend to introduce at trial No surprises

Answer 124

Absent a court order to the contrary, a party can't send discovery requests to another party until after the Rule 26(f) conference Minor exception: requests to produce can be served earlier (once 21 days has passed since service of process) - such a request is treated as though it was served at the Rule 26(f) conference

Answer 125

Live testimony of parties or nonparties, under oath, given in response to questions by counsel

Answer 126

No, a notice of deposition is sufficient to compel a party's appearance

Answer 127

Yes, a nonparty must be served with a subpoena or else they aren't required to attend If party noticing the deposition fails to send a subpoena and the deponent fails to show up, the noticing party may be liable for costs to the other parties

Answer 128

Requires the deponent to bring requested materials with her to the deposition?

Answer 129

All absent a court order to the contrary: Party cannot take more than 10 depositions or depose same person twice Depositions can't exceed one day of 7 hours

Answer 130

(1) to impeach the deponent; (2) for any purpose if the deponent is an adverse party; or (3) for any purpose if the deponent (regardless of whether a party) is unavailable for trial unless that absence was procured by the party seeking to introduce the evidence

Answer 131

Written questions to be answered in writing under oath Only sent to parties Maximum number is 25 (absent court order) Answered within 30 days from their service Answer based on information rsbly available If answers can be found in business records and the burden of finding the answer would be about the same for either party, the responding party can allow the requesting party to have access to the records

Answer 132

Asks a party to make available for review and copying documents or things, including ESI, or to permit entry on designated property to inspect, measure, etc. Must respond in writing within 30 days of service Only to parties, but nonparties can be served w subpoenas to require her to disclose the same types of information

Answer 133

A court order is required to compel a party to submit to a med exam Requesting party must show: (1) that the person's health is in actual controversy and (2) good cause Requesting party chooses the licensed med professional to perform the exam If the perosn who submit to the med exam requests a copy of the report given to the requester, she must (on request) produce all med reports by her own doctors about that same med condition

Answer 134

Written request that someone admit certain matters Must respond within 30 days Rsble inquiry must be made before answering Must respond, deny, or state she doesn't know If party fails to deny a proper request, the matter is deemed admitted

Answer 135

parties sign substantive answers to discovery under oath Rule 11 doesn't apply but by another rule, every discovery request and response is signed by counsel certifiying it is: Warranted; Not interposed for an improper purpose; and Not unduly burdensome

Answer 136

Party can discovery anything relevant to a claim or defense and proportional to the needs of the case Discoverable is broader than admissible Even harmful information is discoverable, unlike in initial disclosures where you didn't have to provide that yet

Answer 137

If Plaintiff does show good cause for discovery, the court can order production and allocate expenses between the parties.

Answer 138

A D can move for a protective order or object to discovery of ESI Undue costs are considerations for ESI Court may allocate costs if P shows good cause to obtain despite costs

Answer 139

Work product is material prepared in anticipation of litigation and is protected Work product sometimes may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way = qualified work product Absolute work product = opinion work product = mental impressions, conclusions, opinions, or legal theories of the disclosing party - can't be discovered

Answer 140

Work product sometimes may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way

Answer 141

opinion work product = mental impressions, conclusions, opinions, or legal theories of the disclosing party - can't be discovered

Answer 142

No, by a special rule, the identity of people w discoverable info is discoverable

Answer 143

If a party withholds discovery or seeks a protective order based on privilege or work product, she must claim the protection expressly and describe the materials in detail Privilege log = lists the materials protected by date, author, recipient, and privilege or protection claimed - must be in enough detail to allow judge to determine whether the material is protected

Answer 144

Party seeks protective order = if responding party thinks discovery request subjects her to annoyance, embarrassment, undue burden or expense, she can move for protective order - must certify that she tried in good faith to resolve the issue without court involvement - met and conferred --> Court can deny discovery, limit discovery, or permit discovery on specified terms Party responds, but not fully = if party responds but fails to answer some questions because she objects to them --> she may be compelled to comply by court order No response to discovery request = fails completely to attend dep, respond to rogs or RFP --> will be subject to various sanctions plus costs

Answer 145

Must certify that she tried in good faith to get the information without court involvement Tried to meet and confer

Answer 146

Two step process: (1) requesting party moves for an order compelling the producing party to answer the unanswered questions, etc., plus costs of bringing the motion (2) if producing party violates the order compelling her to answer, court can enter "merits" sanctions, along w costs and atty's fees for bringing the motion; producing party could be held in contempt for violating court order (except for med exams, no contempt there)

Answer 147

If producing party fails to respond at all, court can enter merits sanctions plus costs No need to get an order compelling answers; you go directly to merits sanctions

Answer 148

Judge can choose from the below: (1) establishment order (establishes facts as true) (2) strike pleadings of the disobedient party (3) disallow evidence from disobedient party (4) dismiss P's case (if bad faith shown) (5) enter default judgment against D (if bad faith shown)

Answer 149

when litigation is rsbly anticipated, parties must preserve discoverable information ESI has special rules Suppose ESI is truly lost and is lost bc the party in control of it failed to take rsble steps to preserve it Court may order measures to cure the harm caused to the other party

Answer 150

Preliminary injunction preserves status quo until trial A court order that the D either do something or refrain from doing something Before getting a preliminary injunction, to maintain status quo until hearing on the preliminary injunction, you may seek a TRO

Answer 151

A TRO is issued to preserve the status quo until a hearing for a preliminary injunction can be held Can be issued ex parte, which means a court has done something without giving notice to the other party Court will issue a TRO ex parte only if: (1) the applicant files a paper under oath clearly showing that if the TRO is not issued, she will suffer immediate and irreparable harm if she must wait until the other side is heard (2) the applicant's lawyer certifies in writing her efforts to give oral or written notice to the D or the D's lawyer (or why notice should not be given in this case) If court issues TRO, order must be served on D as soon as possible A ruling granting or denying a TRO ordinarily may not immediately be appealed

Answer 152

Only if: (1) the applicant files a paper under oath clearly showing that if the TRO is not issued, she will suffer immediate and irreparable harm if she must wait until the other side is heard (2) the applicant's lawyer certifies in writing her efforts to give oral or written notice to the D or the D's lawyer (or why notice should not be given in this case)

Answer 153

A TRO must state its terms specifically, describe in detail what the D must do (or refrain from doing), state why it was issued, and state why the threatened injury to the P was irreparable

Answer 154

TRO is effective for no more than 14 days, but the restrained party may move to dissolve or modify it earlier If applicant shows good cause before expiration, it can be extended for up to another 14 days So a TRO cannot extend beyond 28 days If extended beyond 28 days, may be treated as a preliminary injunction

Answer 155

No, notice has to be given

Answer 156

(1) likely to suffer irreparable harm if injunction is not issued; (2) likely to win on the merits of the underlying case; (3) balance of hardship favors her; and (4) injunction is in public interest

Answer 157

Must state its terms in specificity, describe in detail what the D must do or refrain from doing, and state why it was issued And in granting/denying prelim injunction, court must make specific findings of fact and separate conclusions of law

Answer 158

Yes, can be appealed as of right

Answer 159

A ruling granting or denying a TRO ordinarily may not immediately be appealed

Answer 160

Yes, if the P wants to withdraw her case, she can do so without a court order before the D serves an answer or motion for summary judgment Parties can also stipulate to a voluntary dismissal without court order

Answer 161

Once D has answered or moved for SJ and P wants to withdraw her case, she can make a motion for voluntary dismissal, which court has discretion to grant First voluntary dismissal is without prejudice Means that P can refile the case - but you can only get this once Second voluntary dismissal is with prejudice, which operates as an adjudication on the merits and takes away the P's ability to refile the case

Answer 162

First voluntary dismissal is without prejudice Means that P can refile the case - but you can only get this once Second voluntary dismissal is with prejudice, which operates as an adjudication on the merits and takes away the P's ability to refile the case

Answer 163

If D doesn't respond in time (21 days after bein gserved w process), a default and a default judgment might occur

Answer 164

A default is a notation by the court clerk on the docket sheet in the case Doesn't happen automatically P must move for entry of default P must demonstrate that D failed to respond in time (21 days for normal service, 60 days if waived) Until a default is actually entered, the D can respond by motion or answer even beyond 21 days

Answer 165

Cuts off D's right to respond Entry of default doesn't automatically entitle P to relief though Must seek default judgment

Answer 166

Clerk can enter default judgment if: (1) the D has made no response at all; (2) the claim itself is for a sum certain in money; (3) P gives an affidavit of the sum owed; and (4) the D is not a minor or incompetent D doesn't get a hearing if the above are met - clerk just grants DJ If any of these is NOT true, P must apply to court for DJ

Answer 167

judge will hold a hearing and has discretion whether to enter the judgment D is entitled to notice of the hearing if she has appeared in some fashion in the case P's recovery in a hearing for a DJ is limited to what is pleaded in the complaint

Answer 168

D may move to have the court set aside a default or DJ by showing: (1) good cause and (2) a viable defense

Answer 169

It can be dismissed

Answer 170

It's called a motion for judgment on the pleadings

Answer 171

Court ignores the P's legal conclusions Looks only at P's allegations of fact on the face of the complaint and asks "if these are true, do they state a plausible claim"? If no, judge may allow P to amend her complaint to try to state a claim, but may be dismissed

Answer 172

Used after the case has been filed and P has survived any Rule 12 motions Weeds out cases in which no trial is needed Only reason to have a trial is to resolve a dispute of material fact

Answer 173

(1) there is no genuine dispute on a material fact; and (2) she is entitled to judgment as a matter of law

Answer 174

Any party can move for SJ no later than 30 days after close of discovery Can be for partial judgment and, for ex, the case can go to trial just for damages

Answer 175

Yes, unless a 12b6 motion where you just look at the facts court views evidence in light most favorable to the nonmoving party Evidence is anything taken under oath and normal evidence court may allow nonmoving part some time to gather additional evidence and ruling can be delayed

Answer 176

At least 21 days before the court's scheduling order, parties meet and confer to discuss roadmap of case Must present to the court a detailed discovery plan no later than 14 days after the rule 26f conference

Answer 177

For civil actions at law, but not in suits at equity What if a case includes both law and equity (like a claim for damages and equitable relief)? Facts underlying a damages claim will be tried to the jury; facts relating wholy to an equity claim are tried to the judge; if a fact goes to both, the jury decides it

Answer 178

A Party must demand the jury in writing no later than 14 days after service of the last pleading addressing a jury triable issue If a party fails to do so, she waives the right to a jury Last pleading addressing a jury issue is usually the answer

Answer 179

Parties have unlimited number of challenges for cause Ex: because the potential juror will not be impartial

Answer 180

challenges for which the party states no reason Generally, each side is limited to three peremptory challenges may be used only in a race and gender neutral matter

Answer 181

Before final argument and instruction, and on the record, the court informs the parties of (1) what instructions it will give and (2) what proposed jury instructions it rejected

Answer 182

Yes, if objections are not made before the jury is charged, the objection is waived A court can revisit that jury instruction only for clear error that affected a party's rights Even if the party made an objection off the record first, they need to do it on the record

Answer 183

General verdict = just says who wins and what relief is Special verdict = jury answers, in writing, specific written questions about the facts in dispute, but it does not say who wins or loses General verdict with written questions = jury not only gives a general verdict, but also answers specific questions submitted to it

Answer 184

Directed verdict If judge grants JMOL, case will not go to jury - judge grants the motion and enters judgment Based on evidence presented at trial Standard for granting motion is that rsble people could not disagree on the result Party can move for JMOL after the other side has been heard at trial on the issue

Answer 185

Standard for granting motion is that rsble people could not disagree on the result

Answer 186

Party can move for JMOL after the other side has been heard at trial on the issue

Answer 187

same as JMOL but comes up after trial If RJMOL is granted, court enters judgment for the party that lost the jury verdict When jury gets it wrong, RJMOL and then judge grants it and corrects it because jury was unrsble in verdict and it should have come out other way as with JMOL, views evidence in light most favorable to nonmoving party Must be made within 28 days after entry of judgment Prerequisite: must have moved for FJMOL at the proper time at trial Failure to do so waives RJMOL And RJMOL must be based on same grounds as JMOL motion

Answer 188

Must be made within 28 days after entry of judgment

Answer 189

NO Prerequisite: must have moved for FJMOL at the proper time at trial Failure to do so waives RJMOL And RJMOL must be based on same grounds as JMOL motion

Answer 190

Judgment is entered, but some error at trial requires that we should start over and have a new trial New trial can be granted on any nonharmless error that makes the judge think there should be a do-over Must move for a new trial within 28 days of the judgment (same as RJMOL) Some reason are: (1) Judge gave erroneous jury instruction; (2) New evidence was discovered that could not have been discovered before w due diligence (3) misconduct was committed by juror, party, lawyer, etc. (4) judgment is against weight of evidence; and (5) damages are inadequate or excessive

Answer 191

Must move for a new trial within 28 days of the judgment (same as RJMOL)

Answer 192

Yes on the grounds that the verdict is against the weight of the evidence

Answer 193

Used to avoid a new trial Ground for new trial on this basis is that the jury's damages figure "shocks the conscience" - either too high or too low

Answer 194

Playing hardball w P Court offers P a choice: remit part of the damages award or go through a new trial but note: court can't simply lower the figure that was set by the trial So court must give P that choice Allowed in both state and fed court

Answer 195

Additur is playing hardball w D Court offers D a choice: add to the damage award or go thorugh a new trial Only allowed in state court - not fed court

Answer 196

After a judgment is entered, it's possible to obtain relief from it under certain circumstances Grounds = Timing (1) clerical error = any time (2) mistake, excusable neglect (including viable defense) = rsble time (never more than one year) (3) fraud, misrepresentation, or misconduct by opposing party = rsble time (never more than one year) (4) newly discovered evidence that could not have been discovered w due diligence for a new trial motion. Newly discovered facts must have existed at time of trial = rsble time (never more than one year) (5) judgment is void (for ex, court had no SMJ) = rsble time (but no maximum)

Answer 197

this evidence existed but could not have been discovered w due diligence in time to move for a new trial; you move for a new trial no later than 28 days after verdict; so here we’re good to go

Answer 198

A final judgment

Answer 199

One that determines the merits of the entire case to determine if an order is a final judgment, ask "after making the ruling:" does the trial court have anything left to do on the merits of the case? If yes, it's not a final judgment but rather an interlocutory order - which can be appealed under certain circumstances If answer is no, judgment is final and appealable

Answer 200

Generally no

Answer 201

appeal dismissed; denial of motion for SJ is not a final judgment and thus not appealable; does the tct have anything left to do on the merits of the case, yes we have to go to trial

Answer 202

no; the granting of a new trial is not a final judgment and thus not appealable; no appeal, you have to hold the new trial

Answer 203

yes, this is a final judgment; nothing left to do on the merits of the case; right to appeal; D must file notice of appeal in the district court no later than 30 days after that judgment

Answer 204

Notice of appeal must be filed with the district court within 30 days after entry of the judgment that is being appealed Extended to 60 days if US is a party to the action

Answer 205

(1) an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction) (2) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships (3) decrees in admiralty cases that find liability but leave damages to be assessed later (4) a patent infringement order where only an accounting is wanting, and (5) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.

Answer 206

No, not a normal TRO (14 day and then renewed for another 14 days) But, if a TRO is renewed beyond 28 days, it becomes a preliminary injunction that may be appealed

Answer 207

(1) the district judge certifies that it involves a controlling issue of law; (2) as to which there is substantial ground for difference of opinion (and an appeal would materially advance the conclusion of the case); and (3) the court of appeals agrees to hear it (at least two appellate judges) discretionary

Answer 208

(1) is distinct from the merits of the case; (2) involves an important legal question; and (3) is essentially unreviewable if parties await a final judgment

Answer 209

yes, meets doctrine (1) is distinct from the merits of the case; (2) involves an important legal question; and (3) is essentially unreviewable if parties await a final judgment

Answer 210

So it wouldn't be a final order (and thus not appealable) if there were other outstanding claims or parties So a court may direct entry of a final judgment if it expressly finds no just reason for delay

Answer 211

yes, if it also makes an express finding that there is no just reason for delay

Answer 212

Yes, court of appeals has dicretion to review an order granting or denying certification of a class action Party seeking review must do so at the court of appeals within 14 days of order

Answer 213

Uses de novo standard - meaning no deference is given to the district judge Included is when a judge gives a jury instruction that summarizes a question of law

Answer 214

In non jury trial, when district judge determines questions of fact, court of appeals will affirm unless the findings are clearly erroneous

Answer 215

Findings of fact by a jury are given great deference Court of appeals will affirm ulnless rsble people could not have made that finding

Answer 216

Court of appeals will affirm unless the district court judge abused her discretion Deferential standard

Answer 217

Judicial system that decided case 1

Answer 218

Start your analyss with claim preclusion If it applies, case 2 is dismissed If it does not apply, then try issue preclusion If issue preclusion applies, it streamlines the litigation in Case 2 by deeming an issue established in the case, and thus that issue will not be relitigated

Answer 219

(1) same claimant suing same defendant (2) valid, final judgment on the merits - unless court said judgment was "without prejudice" when entered, any judgment is "on the merits" unless it was based on a lack of jurisdiction, improper venue, or failure to join an indispensable party (3) case 1 and case 2 must be the "same claim" Majority view is that a claim is any right to relief arising from a T/O Minority view is primary rights doctrine - there are separate claims for property damage and for personal injuries that arise in a single event

Answer 220

No. Case 1 and Case 2 were not brought by the same claimant against the same defen- dant, so claim preclusion cannot apply, but remember that Case 2 will be dismissed under the compulsory counterclaim rule.

Answer 221

Under the majority view, yes. It’s the same claimant against the same defendant, and it’s part of the same T/O. But under the primary rights doctrine, the answer would be no. This is the same as the second requirement for claim preclusion.

Answer 222

(1) case 1 ended in valid, final judgment on the merits = same as claim preclusion (2) same issue actually litigated and determined in case 1 (3) issue was essential to judgment in case 1 = essential to the judgment means that the finding on the issue is the basis for the judgment (4) issue preclusion can be used only AGAINST previous party or someone who was in privity w a party = privity means that a party to case 1 represented someone who was not a party to case 1 (like a class action) (5) need to evaluate whether it can be used by someone who was not a party to case 1 or in privity w a party Nonmutual defensive issue preclusion: person asserting preclusion to avoid liability was not party to first case and is the D in case 2 Nonmutual offensive issue preclusion: person asserting preclusion to support claim was not party to first case and is the P in case 2 = = not accepted in most states but some accept if it is "fair" Fairness factors: whether the 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 IP could have easily joined to case 1; and there have been no inconsistent findings on the issue

Answer 223

(1) yes (2) yes, determining Joey's negligence (3) yes, it is why Roommate won; because Joey was negligent (4) yes, it's being asserted against Joey and Joey was a party to claim 1 (5) as long as Joey had a full chance to litigate in case 1, it's fine

Civ Pro Flashcards

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