Civ Pro Flashcards

Question

# SMJ / Diversity Jurisdiction / amount in controversy can you aggregate claims if there are multiple P and one D?

Answer 1

P may not aggregate claims **each P** must seek $75k+ from D

Answer 2

moves case from state court to federal court

Answer 3

moves case from one federal court to another federal court

Answer 4

not a thing fed ct can abstain from hearing it

Answer 5

removal is proper **ONLY** if the case originally could have been brought in federal court if the P chose to sue in federal court in the first place, would the fed ct had SMJ?

Answer 6

only the defendant ALL D must consent w/in 30 days of service

Answer 7

SMJ + removal v sneaky

Answer 8

depends on whether the federal question appears on the face of the well-pleaded complaint if P's claim is based on federal law, D MAY remove if P's claim is based on state law, D may NOT remove to federal court even if D raised a federal defense

Answer 9

only if 1. complete diversity 2. amount in controversy AND **3.** action is brought in a state of which no defendant is a citizen must remove within **one year** of the commencement of action in state court UNLESS P acted in bad faith if in D's home state court, D can't remove

Answer 10

automatically and immediately

Answer 11

P can file petition for remand in federal court **federal court** holds a hearing if removal is proper --> remand denied, stays in fed ct if removal is improper --> remand granted, goes back to state court

Answer 12

allows a federal court with SMJ over a case to hear additional claims over which the ct would not independently have jurisdiction if ALL the claims constitute the **same case or controversy** same case or controversy if arise out of same common nucleus of operative fact, same transaction or occurrence not required to expand its jurisdiction

Answer 13

additional claims

Answer 14

focus on the anchor claim (the federal question claim not the state law claim) if both claims are out of the same common nucleus of operative fact, fed ct may exercise supp jurisdiction over state law claim doesn't matter whether those claims involve joinder

Answer 15

state law claims must still be part of the **same case or controversy / common nucleus of operative fact** CAN'T exercise supp juris over * claims by P against persons made a party under Rules 14, 19, 20, 24 (if only one D, then it's okay) * claims by parties seeking to intervene as P under Rule 24 * claims by parties proposed to be joined a P under Rule 19 | these claims need to independently satisfy the div juris requirements

Answer 16

* compulsory - same transaction or occurrence as the opposing party's claim * permissive - does NOT arise out of same transaction or occurrence

Answer 17

if counterclaim is compulsory + brought by D, doesn't have to meet $75k

Answer 18

can only be heard by federal div court IF **it independently satisfies diversity jurisdiction**

Answer 19

claim by a co-party same side of the v.

Answer 20

1. Relatedness Requirement - arise out of the transaction or occurrence that is subject matter of action or counterclaim 2. must be related to a claim over which the court has SMJ (anchor claim) 3. must NOT be asserted by P against a person made a party under Rules 14, 19, 20, 24 | 1. does counterclaim arise out of the same t/o as anchor claim? 2. is cross claim brought by P against person who is trying to join?

Answer 21

nope, never

Answer 22

yes even if their claims don't satisfy the diversity jurisdiction $75k (assumes one diverse P satisfies jurisdictional amount) single D wasn't made a party though Rules 14, 19, 20, 24

Answer 23

federal and state court rules are generally the same

Answer 24

use the long arm statue of the state in which the federal court sits

Answer 25

1. has the basis for exercising PJ over an out of state D been authorized by statute OR by rule of court? 2. is the particular basis for exercising PJ permitted by the Due Process Clause?

Answer 26

* General Appearance - D voluntarily litigating on the merits * D waives by substantial participation on the merits * Federal Rule: have to raise lack of PJ at first opportunity or it's waived --> pre-answer MTD or answer (whichever is first)

Answer 27

1. in personam - against the person (further divided into general or specific) 2. in rem - against the thing 3. quais in rem - kinda against the thing

Answer 28

are there **sufficient contacts** b/t the D and forum state so that it would be consistent with traditional notions of **fair play** and **substantial justice** to sue the D here? Due Process minimum contacts --> whether there is Purposeful Availement by D

Answer 29

1. general 2. specific

Answer 30

P can assert any claims against D, **even if unrelated** to D's contacts with the forum state whether a corporation’s affiliations with the forum state are so “continuous and systematic” as to render the corporation essentially “at home” in the forum state | additional from Essay 4983

Answer 31

general allows any claim specific requires a connection to forum state

Answer 32

1. physical presence within the state 2. domicile 3. consent 4. corporations

Answer 33

service of process on D while they are physically present in the state --> knowingly and voluntarily in the state EXCEPTIONS only in the state because of summons force fraud

Answer 34

1. expressly 2. implicitly (by not raising the issue) 3. appointment of an agent for receiving process 4. contract

Answer 35

* merely doing business in a state is insufficient * only applies to corporations that are "at home" in the forum state (where it's incorporated + principal place of business)

Answer 36

P's claim must **arise out of D's forum contacts** OR be directly related to those contacts D must have **sufficient minimum contacts** with forum such that exercise of juris is fair state long arm statutes authorize specific jurisdiction based on some minor contacts

Answer 37

state long arm statutes give courts in personam juris over out of state D ONLY for **particular transactions involving that state** can be super broad - as far as Due Process Clause permits

Answer 38

long arm statute of the states in which the federal court sits EXCEPTION: federal rules that extend in personam juris of fed cts beyond state boundaries

Answer 39

1. **Federal Interpleader Act** - nationwide service of process 2. **Bulge Provision of Federal Rules** - allows service anywhere within 100 miles of federal court for (1) impleading 3p D under Rule 14 + (2) joining necessary parties under Rule 19 3. **Unusual Provision Rule 4k2** - if D is not subj to PJ in any state + suing under federal law --> federal ct can exercise jurisdiction as long as D has minimum contacts with US as a whole

Answer 40

suit can be brought against a **piece of property** if (1) property is in the state where you are suing and (2) suit will settle all rights and everyone's claims to the property any property - real or personal form of specific jurisdiction

Answer 41

suit to adjudicate the claim to property of a particular D(s) subject matter may/may not be related to the property **as long as minimum contacts exist**

Answer 42

could use quasi in rem to get D's assets even if completely unrelated

Answer 43

same minimum contacts test applies as with in personam jurisdiction if property is subject of the suit, probs enough to have min contacts b/t D and forum, so juris is likely permitted if property is NOT subject of the suit, ownership of property in the state isn't enough to establish general juris over D

Answer 44

1. service of a summons 2. service of copy of compliant gives ct jurisdiction gives D notice served to someone 18+ AND not a party (MBE Primer #2)

Answer 45

okay as long as it follows the law of the state in which the federal court is based

Answer 46

* in hand personal delivery * leaving summons at D's house with person of suitable age and discretion * delivery of summons to authorized agent * by mail requiring a signed receipt (for ppl in foreign countries)

Answer 47

must make a diligent effort to locate all claimants and serve them personally

Answer 48

only if claimants can't be located after diligent effort can't do this if you're being lazy and you can easily find the names and addresses of the claimants

Answer 49

they get longer to answer (60 days to respond vs. 21 days)

Answer 50

30 days or 60 if D is outside U.S. P can notify D that an action has been commenced only by first class mail

Answer 51

form of relief that requires a D to do something (mandatory injunction) OR prohibits a D from doing something (prohibitory injunction)

Answer 52

after it has fully heard a case

Answer 53

prior to a full hearing on the merits 1. notice to D AND 2. hearing on whether the injunction should be granted

Answer 54

preserves status quo until court can make a decision on the preliminary injunction can't last more than 14 days unless (1) other party agrees or (2) ct finds good cause for extension moving party has to establish under oath 1. immediate and irreparable injury if there is a delay 2. moving party's atty has to certify any efforts that have been made to give notice and why notice is not required

Answer 55

make a motion to dissolve the TRO

Answer 56

not appealable generally UNLESS they have the effect of a preliminary injunction | preliminary injuction can be appealed immediately

Answer 57

among the courts in this judicial system, which one is most appropriate to hear a case? federal system: whether this district is a proper court to hear this action

Answer 58

defendant failure to make a timely objection results in waiver

Answer 59

must be raised at first opportunity or it's waived first oppy = pre-answer MTD or D's answer (if no pre-answer MTD)

Answer 60

1. where any D resides (as long as ALL D reside in the same state) OR 2. where the claim arose (substantial part) 3. if neither 1 or 2, any district where D is subject to PJ has venue

Answer 61

* individuals: domicile * business entities: every district in which PJ exists

Answer 62

venue is automatically proper in federal district where state court sits even if it would not have been proper originally

Answer 63

transfer is only allowed to a district with proper venue UNLESS all parties agree to transfer to a district w/o proper venue

Answer 64

may be transferred with convenience to another district with proper venue

Answer 65

1. dismissed OR 2. transferred to district with proper venue

Answer 66

law of the transferor forum controls (the original court) take your law with you

Answer 67

law of the transferee court controls (the second court) trying to prevent an advantage to filing in the wrong court

Answer 68

state substantive law BUT if it is unclear whether an issue is substantive or procedural, then must determine if federal law addresses the issue | additional info from PQs Set 3

Answer 69

* substantive rules that govern conduct - what must be proved to win a case and what defenses may be asserted * state states of limitations on state causes of action * burdens of proof on state claims or defenses

Answer 70

anything covered by FRCP is procedural federal law applies even if substance of claim is governed by state law *Hanna v. Plumer*

Answer 71

whether to follow state law (matter is substantive) OR follow federal law (procedural)

Answer 72

1. avoid forum shopping 2. avoid inequitable administration of justice

Answer 73

federal law

Answer 74

state law to prevent forum shopping

Answer 75

* judge-made federal law that overrides any inconsistent state or local law or rule * federal courts federal common law only when they encounter important federal interests that are not covered by statute

Answer 76

* follow precedent from highest state court * if no precedent, predict how the highest state court would rule * give respectful attention (not binding) to decisions of lower state courts

Answer 77

1. complaint 2. answer 3. reply

Answer 78

state a claim for relief

Answer 79

P to answer a counterclaim

Answer 80

1. short and plain statement of court's SMJ 2. short and plain statement showing claimant is entitled to relief 3. claim for relief sought by pleader (relief isn't limited to what is listed)

Answer 81

needs to give fair notice of the pleader's claim

Answer 82

must be alleged particularity, specificity, detail * fraud or mistake * claims for special damages

Answer 83

1. identify allegations that are "conclusory" or "mere legal conclusions" 2. look at remaining factual allegations and ask whether they add up to a "plausible" case for recovery probable > "plausible" > possible | *Twombly* and *Iqbal*

Answer 84

think of *Twiqbal* if complaints are obvi unfounded, **dismiss** it

Answer 85

* lack of SMJ (can raise at any time) * lack of PJ (waived) * improper venue (waived) * insufficient process (waived) * insufficient service of process (waived) * failure to state a claim upon which relief can be granted * failure to join a necessary party * [forum non conveniens] | FRCP 12b6

Answer 86

at the earliest oppy (pre-answer MTD or the answer)

Answer 87

SMJ can be raised by any party at any time

Answer 88

applies when teh pleadings agree on teh facts and only the law is in dispute

Answer 89

* Motion to Dimiss * Motion for Judgment on the Pleadings * Motion for a More Definite Statement * Motion to Strike (delete prejudicial or scandalous matters that aren't relevant)

Answer 90

responses defenses counterclaims

Answer 91

failure to respond is an admission that admission is binding | pro tip: include boilerplate denial of everything

Answer 92

* assumption of risk * contributory negligence * fraud * duress * release * SOF * statutes of limitations

Answer 93

generally 21 days but nuances

Answer 94

1. as of right 2. by leave of court

Answer 95

may be amendment at any time w/in 21 days of service

Answer 96

after party has amended once, must ask court to amend again should be freely granted

Answer 97

* amendment is deemed to relate back to the date of the OG pleading (rather than the date of the amendment) * applies when statue of limitations has run out * an amendment relates back to the date of the OG filing IF it concerns **the same transaction, occurence, or conduct** as OG pleading

Answer 98

Doctrine of Relation Back

Answer 99

1. must concern same conduct, transaction, or occurrence as OG pleading AND 2. new party must have known or had reason to know that the action should have been brought against it but for a mistake

Answer 100

signed by attorney of record + provide attorney's contact info attorney certifies it is a reasonable inquiry appropriate factual and legal basis for filing

Answer 101

* verification not required * must be certified

Answer 102

attorney can be ordered to bear the costs of improper filings

Answer 103

P or D can join IF 1. claims are out of the same t/o (or series) AND 2. common question of law or fact | FRCP 20

Answer 104

* all joinder rules assume there is SMJ * diversity jurisdiction: **no party** can join whose presence would destroy complete diversity

Answer 105

focus is on what D can compel P to do 1. Is bringing in this party necessary for **a just adjudication**? if yes, they're necessary risk of inconsistent liability, prejudice to existing parties, complete relief can't be granted without them 2. Is it feasible to add the new party? feasible if (a) won't deprive the court of SMJ and (b) court can exercise PJ over necessary party 3. If not, court decides to proceed without the necessary party OR dismiss the whole suit b/c they're indispensable a person is a required party to a federal action and must be joined (if joinder is feasible) IF any of the following is true: (A) in that person’s absence, the court cannot accord complete relief among existing parties; OR (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. | FRCP 19

Answer 106

* party volunteers to enter a lawsuit (generally P) * (1) intervention as of right * (2) permissive intervention * must be **reasonable promptness** | FRCP 24

Answer 107

used to resolve the problem of competing claims to same property (real, personal, tangible, intangible)

Answer 108

available remedy if lawsuit is otherwise within court's jurisdiction | FRCP 22

Answer 109

* only applies in federal court * amount >= $500 * SMJ based on minimal diversity * nationwide service of proper * venue is proper in any district where any claimant resides | Federal Interpleader Act

Answer 110

stakeholder

Answer 111

stakeholder claimant

Answer 112

all claims even if unrelated

Answer 113

P can aggregate all claims against same D to exceed jurisdictional amount

Answer 114

additional state-law claims ONLY IF they are covered by supplemental jurisdiction (so same t/o as original claim)

Answer 115

compulsory counterclaim if lost if not pleaded now permissible counterclaims can be raised now or later

Answer 116

arises out of the same t/o as claim to which it responds Note: statute of limitations tolls for original claim and compulsory counterclaims

Answer 117

supplemental jurisdiction is generally available if SMJ over main claim, there's SMJ over compulsory counterclaim diversity case: if counterclaim is raised by D, okay amount of the claim usually doesn't matter

Answer 118

does NOT arise out of same t/o may be pleaded now or later has to be timely (statute of limitations) requires an **independent jurisdictional basis** --> federal question or diversity juris requirements

Answer 119

must arise out of the same t/o as original claim or counterclaim

Answer 120

D brings someone into the suit who may/may not be liable to D for all or part of P's claim against the D impleaded party = D original defendant = 3p P as against 3p D

Answer 121

impleaders

Answer 122

diversity cases: this is w/in court's SMJ citizenship of 3p D + amount of claim against 3p D don't matter supplemental jurisdiction doesn't extend to claims by OG P against impleaded 3p D

Answer 123

normal methods of PJ available bulge provision

Answer 124

**CANT** believe we have a class action 1. numerioristy 2. commonality among questions of law or fact 3. typicality 4. adequacy of representation

Answer 125

allows large class actions * at least 100 members * over $5mm at stake * only minimal diversity required

Answer 126

1. names and addresses of anyone with potentially discoverable info 2. copies or descriptions of relevant documents or things 3. computation of damages claimed 4. applicable insurance agreements

Answer 127

1. initial disclosures 2. disclosure of expert witnesses 3. pretrail disclosures

Answer 128

* names of experts to be called at trial * qualifications, publications, opinions, info on which they'll base their opinions, and compensation

Answer 129

* 30 days before trail * list of witnesses and exhibits * any objections within 14 days of disclosure or waived (unless excused by ct for good cause)

Answer 130

* must be relevant * you can discover anything that might be admissible at trial OR might lead to something admissible at trial * not limited to admissible evidence * limited to matters that are **proportional** to the needs of the case

Answer 131

1. evidentiary privilege (e.g., attorney-client privilege) 2. work-product rule

Answer 132

(1) documents and things (NOT the underlying info) (2) prepared in anticipation of litigation or trial (3) by or for another party (or their representative) creates a qualified immunity from discovery

Answer 133

need to show 1. a real need for the document or thing AND 2. info can't be obtained elsewhere

Answer 134

your own statement (if you're a party or witness)

Answer 135

mental impressions of the lawyer

Answer 136

experts who will testify vs. those who won't * other side can always discover report of testifying expert (compensation, facts, data, assumptions, etc. provided to expert by lawyer) * if not going to testify, no discovery absent exceptional circumstances

Answer 137

1. oral deposition 2. written deposition 3. interrogatories 4. discovery and inspection of docs and land 5. physical and mental examination 6. request for admission

Answer 138

deposition of a nonparty witness requires a subpoena (form of notice)

Answer 139

requires deponent to bring specific docs or things

Answer 140

* questions asked and answered orally * under oath * any kind of notice is okay for party, subpoena required for nonparty witness * taken any time after party has made mandatory disclosures * notary public required

Answer 141

questions asked in writing and witness answers orally under oath

Answer 142

questions asked in writing and answered under oath in writing can only be used against a party may produce business records in response if burden of deriving the answers is substantially the same for both parties

Answer 143

request to produce and permit inspection only applies to docs, things, and land under control of a party must be described with particularity

Answer 144

1. only available against a party 2. only permitted when a party's mental or physical condition is in controversy AND 3. good cause shown

Answer 145

only to another party failure to respond w/in 30 days is treated as admitted binding in litigation but no preclusive effect | remember this needs to be signed by attorney on record, etc.

Answer 146

these are separate issues

Answer 147

1. failure to attend one's own deposition 2. failure to respond to interrogatories AND 3. failure to respond to a request for docs or things no way you can forget to do these things in good faith | otherwise, request an order to compel discovery

Answer 148

* must be attended by attorneys who will conduct the trial * must file a pretrial statement detailing claims and defenses, itemization of damages, requests for stipulations and admissions, list of all witnesses and exhibits, etc. * failure to comply usually means that they pay other side's fees

Answer 149

* judgment on the pleadings * default judgment (D has not shown up) * voluntary dismissal (w/o prejudice) * involuntary dismissal (w/ prejudice) * summary judgment

Answer 150

party whose claim is dismissed can bring that claim again in a new lawsuit

Answer 151

lack of jurisdiction improper venue failure to join an indispensable party

Answer 152

abuse of discretion

Answer 153

failure to state a claim tests only the legal sufficiency of the P's claim summary judgment is about the law AND facts

Answer 154

no genuine dispute as to any material fact and moving party is entitled to judgment as a matter of law no genuine dispute --> no reasonable juror could find for the moving party materials in the record must generally be sworn look at facts in light most favorable to nonmoving party

Answer 155

federal right to trial by jury (7th Amendment) no right to jury trial for equity issues (injunctions, specific performance, admiralty issues)

Answer 156

try the legal issues first

Answer 157

either party in a pleading or separate motion must be made no later than 14 days after service of last pleading directed at the issue

Answer 158

make findings of facts on the record and state conclusions of law

Answer 159

* either party may request specific instructions * court must provide an oppy to object to proposed instructions

Answer 160

must be unanimous unless parties have stipulated otherwise at least 6 jurors (no more than 12)

Answer 161

viewing the evidence in the light most favorable to the opposing party, evidence can't support a verdict for that party, and moving party is entitled to judgment as a matter of law **ct must find that there is legally insufficient evidence for a jury to reasonably find for nonmoving party** kinda like motion for summary judgment after trial started | FRCP 50

Answer 162

If case turns on issue of witness credibility, JMOL is denied (b/c there's an issue of material fact)

Answer 163

evidence can't support the jury's verdict and moving party is therefore entitled to judgment as a matter of law prior motion is required

Answer 164

discretion of court some reasons * legal errors * newly discovered evidence * prejudicial misconduct by a lawyer, party, or juror * judge concludes verdict is against great weight of the evidence w

Answer 165

reduction to reduce the verdict and grant. new trial on the condition that the remittitur is not accepted Defendant's request to reduce jury award of excessive damages

Answer 166

Plaintiff's request to increase jury award of inadequate damages NOT allowed in federal court

Answer 167

if reason for new trial is question of law --> de novo otherwise, abuse of discretion

Answer 168

only after final judgment --> resolves ALL claims of ALL parties

Answer 169

yes, immediately appealable court enters a final judgment on some claims by expressly designating the order as final

Answer 170

entered by the clerk on court's docket NOT when it's announced

Answer 171

any order granting or modifying an injunction any order that changes or affects possession of property | remember TROs ordinarily aren't appealable

Answer 172

any interlocutory order is appeal with leave of courts BOTH trial and appellate courts must agree to allow the appeal TC issues certificate for interlocutory appeal stating 1. issue involves a controlling question of law with substantial ground for difference of opinion AND 2. immediate appeal may materially advance termination of the litigation

Answer 173

de novo did trial court make an error? was that error prejudicial?

Answer 174

jury verdicts must be affirmed if supported by substantial evidence unless clearly erroneous

Answer 175

abuse of discretion

Answer 176

1. claim preclusion (res judicata) 2. issue preclusion (collateral estoppel)

Answer 177

1. Is the claim in the second suit precluded by prior adjudication (claim preclusion)? if Y, stop. 2. if not, are there any issues in the second suit precluded by prior adjudication (issue preclusion)? | make sure to ask these questions in order

Answer 178

final judgment on the merits of a claim bars re-litigation of that claim by the same parties or their successors in interest precludes re-litigation of every claim that was raised or should have been raised in the first suit

Answer 179

1. final judgment on the merits in the first suit (includes default judgment, summary judgment, dismissal w/ prejudice) 2. second suit must be b/t same parties or their successors in interest (both parties) AND 3. second suit must involve the same claim or cause of action

Answer 180

stands in the shoes of the original party * assignor and assignee of a claim * decedent and executor of the estate * executor of an estate and people who claim under the will

Answer 181

each member is bound to the judgment

Answer 182

* all legal theories to recover harm arising out of a single t/o count * if both contract and tort claims seek redress for same harm, they are the same claim * claims that should have been bought in first case

Answer 183

creditor must sue for all that is "due and owing" at the time of the suit future debts or obligations are another claim | look out for acceleration clauses

Answer 184

1. same issue of fact in both suits (even if different claims) 2. issue must have been actually and necessarily decided in first suit by a valid and binding judgment (only actually litigated claims) AND 3. party to be precluded must have been a party in the first suit (party invoking preclusion doesn't need to be involved in first suit)

Answer 185

any federal judicial district court

Answer 186

if poll reveals verdict is not unanimous --> ct can direct jury to deliberate more or issue a new trial if unanimous --> enter judgment consistent with verdict party has to request the poll or court can order it

Answer 187

motion can be renewed w/in 28 days after entry of judgment

Answer 188

federal procedural law + state substantive law

Answer 189

federal substantive + federal procedural law

Answer 190

**MIBB** 1. the movant is likely to succeed on the **merits** 2. the movant is likely to suffer **irreparable harm** in the absence of relief 3. the **balance of equities** is in the movant's favor AND 4. the injunction is in the **best interests of the public**

Answer 191

may be subject to sanctions for failing to take reasonable steps to preserve evidence that should have been preserved in the anticipation or conduct of litigation Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery **court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence**

Answer 192

no, have to wait for the conference

Answer 193

party needs to (1) timely object to the instructions (2) on the record and (3) state the grounds for the objection

Answer 194

district court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record on its own initiative (i.e., sua sponte) or pursuant to a party's motion **before** an appeal from the judgment or order is docketed after an appeal is docketed, the district court can correct the mistake only with the appellate court's leave (i.e., permission).

Answer 195

w/in one year of the entry of final judgment 1. mistake, inadvertence, surprise, or excusable neglect 2. newly discovered evidence 3. opposing party's fraud, misrepresentation, or misconduct

Answer 196

* filing deadlines * court rules and procedures * discovery practices * rules of evidence

Answer 197

* elements of claim or defense * burdens of proof * statutes of limitations

Answer 198

* dismiss action in whole or part * strike pleadings in whole or part * hold in contempt of court * issue default judgment * prohibit use of evidence * stay further proceedings (delay)

Answer 199

case is dismissed with prejudice unless otherwise stated

Answer 200

* when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect * If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. * SCOTUS held that a forum selection clause should be given “controlling weight in all but the most exceptional cases."

Answer 201

each party gets (1) 3 peremptory challenges to strike jurors for any reason (except race, ethnicity, gender) w/o explanation and (2) unlimited number of challenges for cause to strike potential jurors for bias or lack of impartiality

Answer 202

only after the nonmovant has the oppy to present their case to the jury can be filed before case is submitted to the jury

Answer 203

* follow rules of state where court sits OR where service is made * personal service * deliver to dwelling (or usual place of abode) and left with resident of suitable age and discretion | FRCP 4

Answer 204

they have discretion to decide whether to hear it needs to be filed with clerk of appellate court within 14 days after order is entered

Answer 205

final judgment = decision that fully resolves the merits of a dispute, leaving nothing but enforcement exceptions - In Certain Circumstances, An Appeal Can Be Made Prematurely * injunction (grant or denial) * certification by district court * class action certification * appointment of receiver * admiralty cases * collateral order doctrine * bankruptcy cases * mandamus * patent infringement order | if exception applies, appeal is allowed

Answer 206

generally 30 days after entry of a judgment file the notice of appeal with district court clerk

Answer 207

valid federal rule applies IF the rule (1) is arguably procedural AND (2) does not abridge, modify, or enlarge a substantive right

Answer 208

govt is sued under the Federal Tort Claims Act for the tortious conduct of a federal employee venue is proper where the plaintiff resides OR where the act or omission complained of occurred

Answer 209

findings of fact --> clear error conclusions of law --> de novo

Answer 210

special venue rules allow any district where * any D resides * substantial portion of events occurred or property is located * P resides if no real property involved

Answer 211

general venue rules allow any district where * any D resides if all D reside in same state * substantial portion of events occurred or property is located * any D subject to PJ if neither of the above applies

Answer 212

de novo A trial judge’s decision to grant a summary judgment motion is a legal ruling. As a legal ruling, the appropriate standard of review by the appellate court is de novo.

Answer 213

may grant motion if court finds that there is **insufficient evidence for a jury reasonably to find for that party** verdict was clearly erroneous If the court finds that there is sufficient evidence for the jury to have reasonably found for a party, the court should not grant the motion

Answer 214

federal common law requires that you follow the law of the state in which the federal court rendered its judgment, unless state law is incompatible with federal interest so follow laws of the original federal court that decided the claim

Answer 215

at the time that the court first informs the party that it will not give the instruction in this question, they needed to object after the judge told the parties that it wouldn't use their submitted instructions NOT after the judge gave the instructions to the jury

Answer 216

they have to wait until after the discovery planning conference

Answer 217

Rule 60(b) allows a ct to relieve a party from a final judgment or order for a motion needs to be filed w/in reasonable time (no later than 1 year following entry of judgment by opposing party) if judgment was based on fraud or newly discovered evidence

Answer 218

* reasons why it was granted * reasonable description of prohibited/commanded acts **without reference** to complaint or another doc AND * specific terms (e.g., persons bound, penalties for noncompliance)

Answer 219

generally party has to object to that error at trial BUT IF they didn't do that, can still be reviewed for **plain error** - obvious error that affected a substantial right and the fairness of judicial proceedings

Answer 220

nonparty has the right to intervene in an action when 1. upon timely motion 2. the nonparty has an interest in the subject matter of the action 3. the disposition of the action may impair the nonparty’s interests AND 4. the nonparty’s interest is not adequately represented by existing parties burden is on the party seeking to intervene | this may apply to permissive + as of right interventions, but not sure

Answer 221

discuss both specific and general jurisdiction for in personam **long arm statutes:** * DP of 14th permits a court to exercise personal jurisdiction over a defendant if the defendant has “minimum contacts” with the forum state **such that** the maintenance of the action does not offend traditional notions of fair play and substantial justice * contacts with the forum state must be purposeful and substantial, such that the defendant should reasonably foresee being taken to court there * foreseeability depends on whether a defendant recognizes or anticipates that by running his business, he risks being party to a suit in a particular state

Answer 222

* D's answer must state any avoidance or affirmative defense or deemed waived (in general) * pleadings (incl. answers) are allowed to be amended by leave of ct when justice so requires

Answer 223

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

Answer 224

move for renewed judgment as a matter of law

Answer 225

procedural governed by federal law

Answer 226

* must be signed by at least one attorney of record (or party if pro se) * certifies that to the best of their knowledge, info, and belief formed after a reasonable inquiry THAT * (1) paper is not presented for any improper purpose * (2) factual contentions have evidentiary support (or will likely have it after reasonably oppy for discovery) * (3) claims, defenses, etc. are warranted by existing law or non frivolous * (4) denials of factual contentions are warranted or specifically identified as reasonably based on belief or lack of info

Answer 227

* motion must be made separately * must describe the specific conduct * first served to opposing party * opposing party has 21 days to withdraw or correct the challenged pleading * may file motion with court if 21 days passes without action

Answer 228

attorneys law firms (generally held jointly responsible for violation by partner, associate, or employee) parties for Rule 11 violations

Answer 229

no, they're not necessary parties you can collect everything from one party

Answer 230

* state of its incorporation * state of its principal place of business * **AND insured’s state when the insurer is sued in a direct action**

Answer 231

1. federal question OR 2. amount in controversy exceeds $75k + complete diversity b/t stakeholder and claimants

Answer 232

1. amount in controversy of $500 AND 2. minimal diversity between claimants

Answer 233

ONLY DEFENDANT

Answer 234

untimely disclosure of evidence favorable to the defense violates Cons IF THE evidence would have created a reasonable probability of a different outcome if disclosed earlier

Answer 235

claim for relief against a coparty can't just assert a defense without a claim for relief

Answer 236

* renewed judgment as matter of law (JMOL) * amended or additional findings * new trial * alter or amend judgment * relief from judgment

Answer 237

only to prevent manifest injustice

Answer 238

yes. judge has to permit the parties to submit questions, but judge isn't required to ask questions they consider to be improper

Answer 239

no. if the court does consider additional info, treat as motion for summary judgment instead

Answer 240

* general * general with special interrogations * special * FRCP gives discretion to court to decide * unless it's an abuse of discretion, unlikely that party can challenge it

Answer 241

ONLY IF party acts promptly and before the court rules on the original motion FRCP has liberal policy with amendments if no undue prejudice to opposing party | like not filing MTD for insufficient service of process then amending the motion to include it

Answer 242

When filing an answer to a complaint in federal district court, a defendant must affirmatively state any avoidance or affirmative defense, including the statute of limitations. Federal courts find that a failure to plead an affirmative defense as required results in the waiver of that defense and its exclusion from the case.

Answer 243

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The moving party bears the initial responsibility of informing the district court of the basis for its motion and must identify the portions of the record which it believes demonstrate the absence of a genuine issue of material fact. The nonmoving party can then avoid summary judgment only if it responds with admissible evidence of specific facts showing that there is a genuine issue for trial. Facts must be viewed in the light most favorable to the nonmoving party if there is a genuine dispute as to those facts. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.

Answer 244

asking about SMJ! Federal courts are courts of limited jurisdiction and no action of the parties can confer subject-matter jurisdiction upon a federal court. The consent of the parties is irrelevant. Federal courts are expected to determine SMJ on their own initiative, even when neither party raises the issue. A district court must dismiss an action if the court determines at any time that it lacks subject-matter jurisdiction.

Answer 245

Federal district courts have subject-matter jurisdiction in diversity cases when the matter in controversy exceeds the sum or value of $75,000 and is between citizens of different States. A corporation’s citizenship to be of the state of its incorporation as well as of the state where it has its principal place of business. Principal place of business refers to the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities. [there was lack of SMJ] The court must dismiss the case without ruling on the motions for summary judgment. Because it lacks jurisdiction, it has no authority to proceed with the case.

Answer 246

Federal question jurisdiction grants the district courts original subject-matter jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. In general, if the cause of action in question is expressly created by federal law, and federal law provides the underlying right, then federal question jurisdiction will exist. In addition, Congress gave the U.S. district courts diversity jurisdiction over civil actions when the parties to an action are citizens of different states and the amount in controversy exceeds $75,000. Diversity jurisdiction requires complete diversity between opposing parties in a case. There is no diversity of citizenship if any plaintiff is a citizen of the same state as any defendant.

Answer 247

A district court with original subject-matter jurisdiction over a claim may exercise supplemental jurisdiction over additional claims over which the court would not independently have subject-matter jurisdiction (usually state law claims against a nondiverse defendant). These additional claims must be so related to the original claim that the additional claims form part of the same case or controversy under Article III of the U.S. Constitution. In judging whether the claims are related, the test is whether they arise out of a “common nucleus of operative fact” such that all claims should be tried together in a single judicial proceeding.

Answer 248

A district court has discretion to decline to exercise supplemental jurisdiction over a claim that would otherwise qualify for supplemental jurisdiction in each of the following circumstances: (i) the supplemental claim raises a novel or complex issue of state law; (ii) the supplemental claim substantially predominates over the claims within original federal jurisdiction; (iii) all of the claims within the court’s original jurisdiction have been dismissed; or (iv) in exceptional circumstances, if there are other compelling reasons for declining jurisdiction.

Answer 249

If there is a valid federal rule of procedure on point, then the court must determine whether the rule is valid under the Rules Enabling Act. Specifically, the court must ask whether the federal rule abridges, enlarges, or modifies any substantive right. Pursuant to this Act, the Federal Rules of Civil Procedure have been created, and apply to all civil actions and proceedings in federal court, including actions that raise state law claims. A complaint (or any pleading in which a claim is made) must include a short and plain statement of the claim establishing entitlement to relief. This rule generally applies to any claim brought in federal court and will prevail over any state-law pleading rules.

Answer 250

Under the Federal Rules, a nonparty has the right to intervene in an action when, upon timely motion, (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.

Answer 251

A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction. A TRO has immediate effect and lasts no longer than 14 days unless good cause exists. A TRO can be issued without notice to the adverse party if the moving party can show (1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and (2) the efforts made at giving notice and the reason why notice should not be required. Additionally, the party seeking a TRO usually must give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully restrained.

Answer 252

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to suffer irreparable harm in the absence of relief; (3) the balance of equities is in the party's favor; and (4) the injunction is in the public's best interest. Additionally, the party seeking the preliminary injunction usually must provide security like it would for a TRO.

Answer 253

only when the amount sought is a sum certain + defaulting party has failed to appear

Answer 254

Under the “compulsory counterclaim” rule applicable in federal courts, a defendant must include in her answer to a complaint “any claim” that the defendant has against the plaintiff that arises out of the transaction or occurrence that is the subject matter of the [plaintiff’s] claim. It is well established that a failure to plead a compulsory counterclaim bars a party from bringing a later independent action on that claim.

Answer 255

* extent of prejudice to the absent party or existing parties if the litigation proceeds * extent to which the court could mitigate that prejudice by shaping relief * adequacy of a judgment rendered in the absence of the missing party * whether the plaintiff would have an adequate remedy if the action were dismissed

Civ Pro Flashcards

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