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Bar Exam > Civ Pro > Flashcards

Civ Pro Flashcards

1
Q

The 7th Amendment preserves the right to a jury trial in “civil actions at law,” but not in suits at: _____.

A

Equity.

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2
Q

What are the 5 requirements for issue preclusion?

A
  1. Case 1 ended in valid, final judgment on the merits;
  2. Same issue was litigated and determined in case 1;
  3. Issue litigated was essential to the judgment in case 1;
  4. Used against someone who was a party to case 1 or in privity with a party;
  5. Used by someone who was a party in case 1 OR:

5a. If by someone who was NOT a party to case 1:
- D using issue preclusion: ok!
- P using issue preclusion: fairness factors!:
– full opp to litigate;
– strong incentive to litigate
– whether party asserting preclusion could have easily joined in case 1;
– no inconsistent findings on the issue

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3
Q

3 requirements for claim preclusion?

A
  1. Same P against same D (same configuration!)
  2. Valid, final judgment on the merits
  3. “same claim”
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4
Q

Personal Jurisdiction analysis steps?

A
  1. Statutory (long-arm):
    - D present is forum state at time of service; or
    - D domiciled in the forum state; or
    - D given express or implied consent to jdxn;
    - meets requirements of long-arm statute.
  2. Constitutional (SUFFICIENT MINIMUM CONTACTS):
  3. Contacts
    - D purposefully availed herself of forum state’s laws;
    - D knew or reasonably should have anticipated that her acts in forum state subject her to state’s jdxn;
  4. Relatedness
    - If claim related to D’s contact, specific jdxn;
    - If claim unrelated to D’s contact, need general jdxn (must be “at home” in the state)
  5. Fairness
    - whether forum is “so gravely difficult and inconvenient” that D is at severe disadvantage
    - forum state’s legit interests in providing redress to its residents
    - P’s interests
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5
Q

A party may use supplemental jdxn to have his claim heard in federal court if the claim meets the _____________ test UNLESS the claim:

A

“same nucleus of operative fact”;

UNLESS claim is:
1. asserted by P
2. in a diversity case
3. AND is asserted against a citizen of the same state as plaintiff

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6
Q

Plaintiff may lay venue in any district where:

A
  1. All Ds reside; OR
  2. a substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (can be more than one place)
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7
Q

For removed cased, venue is proper:

A

in the federal district embracing the state court where the action was filed

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8
Q
  1. If transfer is based on convenience, the law of the (TRANSFEROR/TRANSFEREE) court applies;
  2. If transfer is based on improper venue, the law of the (TRANSFEROR/TRANSFEREE) court applies.
A
  1. Transferor
  2. Transferee
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9
Q

Process consists of what 2 docs?

A
  1. Summons
  2. Complaint
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10
Q

When must process be served?

A

Within 90 days of filing the action

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11
Q

How can process be served?

A
  1. Personal service
    - Anywhere
  2. Substituted service
    - at D’s usual abode on someone of suitable age and discretion who resides there
  3. Service on agent
    - must be within scope of agency
    - can be used even if personal service is possible
  4. State law methods
    - state where fed ct sits
    - state where service is to be made
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12
Q

When is waiver of service of process effective?

A

When P files D’s returned waiver with the court.

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13
Q

What is the penalty for failing to waive service?

A

D must pay cost of service if D had no good cause for failing to return waiver form

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14
Q

What is alienage jurisdiction?

A

Case between citizen of U.S. state and a citizen of a foreign country

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15
Q

When is diversity of citizenship determined?

A

At time of filing of the case.

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16
Q

What is the citizenship of an unincorporated association (partnership, LLC, etc.)?

A

All states where any member or partner is a citizen.

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17
Q

Where is the citizenship of decedents, minors, and incompetents?

A

The citizenship of the decedent, minor, or incompetent, NOT any representative.

18
Q

How does claim aggregation work for the amount in controversy requirement of diversity cases?

A

Any single P may aggregate all claims against any single D.

Multiple Ps CANNOT do this.

The claims do NOT have to be related in any way.

19
Q

How is amount in controversy handled for joint claims?

A

Look to total value of claim for joint claims.

This is not aggregation - we aren’t adding anything!

20
Q

How to determine amount in controversy for equitable relief claims?

A

Two tests, can satisfy either:

  1. P’s viewpoint. Value >$75K?
  2. D’s viewpoint. Cost >$75K?
21
Q

Even if diversity jdxn exists, federal courts decline these “excluded” cases:

A
  • divorce
  • alimony
  • child custody
  • actions to probate estate
22
Q

Can P create diversity by changing state citizenship after COA accrued but before suit is filed?

A

Yes.

23
Q

Standard for removal from state to federal court?

A

The case filed in state court could have been brought in federal court originally.

24
Q

Time for removal?

A

No later than 30 days after service.

25
Q

How to remove case?

A

File “Notice of Removal”:
- grounds for removal stated
- court permission not required
- served on adverse parties
- file in federal court, copy in state court

26
Q

Who must join in a removal?

A

All Ds served with process. They need not join in the same paper.

Note: earlier-served D may join later-served D’s removal even if the 30-day period has expired for the earlier-served D.

27
Q

2 limits on removal in diversity cases?

A
  1. D can’t remove when D citizen of the forum state.
  2. When it has been > 1 year since the suit was filed in state court. (like when claim against in-state D is voluntarily dismissed from the case)
28
Q

Erie steps?

A
  1. Is there a fed law on point that directly conflicts with state law? If so, apply that federal law so long as it’s valid (FRCPs always are).
  2. If there is no fed law on point, fed judge must apply state law if the issue is substantive.
  3. Determine whether the issue is substantive:
    - Outcome determinative?
    - Balance of interest factors
    - Avoid forum shopping
29
Q

What are the 5 “clearly substantive” issues for Erie analysis?

A
  1. Conflict or choice of law rules;
  2. Elements of claim or defense;
  3. Statutes of limitation (only for confl of law purps)
  4. Tolling of statutes of limitations
  5. Standard of granting a new trial bc the jury’s award was excessive or inadequate
30
Q

What matters require more specificity in a pleading?

A
  • Fraud
  • Mistake
  • Special damages
31
Q

Time to respond to complaint?

A

21 days

60 days if waived service

32
Q

What are the waivable defenses?

A

3 Ps and a V:

  • PJ
  • Process (problem with papers)
  • Process (service)
  • Venue
33
Q

Can D include waivable defense in an amended answer if they forgot to raise them originally?

A

Yes.

34
Q

Time for amended pleading once “as of right” and standard for additional or later pleadings?

A

21 days; “as justice so requires”

35
Q

When can an amended pleading relate back when it:

  1. Joins claim not originally asserted;
  2. Changes D?
A
  1. Same T/O;
  2. Same T/O, D had knowledge of case, D knew or should have known that P made mistake.
36
Q

Is there a right to file a supplemental pleading?

A

No. Must make a motion.

37
Q

When lawyer or pro se signs court docs, they are certifying that after reasonable inquiryL

A
  1. Paper not for improper purpose;
  2. Legal arguments warranted by law or nonfrivolous arg for law change;
  3. Factual contentions and denials have evidentiary support or are likely to after further investigation.
38
Q

When is an absentee a necessary party?

A
  1. Can complete relief be accorded among existing parties?
  2. Will absentee’s interest be harmed?
  3. Will D be subject to multiple inconsistent liability?
39
Q

What are the 4 initial requirements for a class action?

A

NCTA:

  1. Numerosity (too many for joinder)
  2. Communality (some issue in common)
  3. Typicality (reps claims typical of claims of the class)
  4. Adequate representative
40
Q
A

Bar Exam (9 decks)

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