CIV PRO Flashcards

Question

Enumerated Long Arm Statute

Answer 1

Authorizes PJ in specified situations (typically uses the language “arising out of _____”), such as business, contracts, torts, warranty, etc. The action and circumstances must fall within / not be excluded from personal jurisdiction in order to be subjected to PJ in the state

Answer 2

Allow PJ to the extent of the Constitutional authority

Answer 3

A type of Long Arm Statute that requires certain individuals to consent to personal jurisdiction in certain circumstances, such as those seeking a business license or those driving in the state (such as in the Hess case)

Answer 4

Asserts the court’s authority over the Defendant Informs the Defendant of the case so Defendant can prepare to defend it

Answer 5

UCA Unknown, Conjectural, Ascertained Unknown beneficiaries Beneficiaries whose interests are conjectural OR whose whereabouts cannot be ascertained in natural course of business

Answer 6

Summons Complaint

Answer 7

Fed. Rule 4(c)(1) provides that the plaintiff bears the responsibility of serving process, but cannot serve it herself Fed. Rule 4(c)(2) provides that any person who is at least 18 years olf and not a party may serve a summons and complaint Could be a private process server, a qualified sheriff or deputy sheriff, or it could be mailed by plaintiff’s counsel if service by mail is permitted

Answer 8

After complaint is filed Within 90 days of filing (or court will dismiss unless good cause for extension) Plaintiff can file again if case dismissed for failure to timely serve

Answer 9

Deliver the papers to the defendant personally (“in-hand service”) wherever she can find the defendant Leave the summons and complaint at the defendant’s “dwelling or usual place of abode with someone of suitable age and discretion who resides there.” Deliver the summons and complaint to an agent of the defendant authorized by appointment or by law to receive service of process Follow the rules for service of process of the state where the federal court sits or of the state in which service of process is made

Answer 10

Delivering a copy of the summons and complaint to an officer, a managing agent, or a general agent of the entity Delivering the papers to an agent (an official agent, not an agent of the corporation) authorized by law or by appointment to receive service of process, such as the state’s Secretary of State in most states Serving process under state rules for serving corporations, in either the state where the federal court sits or in the state where service is made

Answer 11

WEC Waiver, Envelope, Complaint Plaintiff can request defendant to waive service by sending a notice of the action with: Two copies of the waiver form The complaint And a prepaid envelope for returning the waiver

Answer 12

Belief… that the lawsuit is groundless that it has been brought in an improper venue that the court has no jurisdiction over this matter that the court has no jurisdiction over the defendant or the defendant’s property

Answer 13

If defendant agrees to waive service, they have sixty days to answer the complaint rather than the usual 21 If defendant refuses, they bear the costs of formal service and associated attorney’s fees

Answer 14

Venue is not a required consideration under the Constitution SMJ is concerned with court’s power PJ is concerned with Defendant’s connection to the state Venue is concerned with the plaintiff’s, witness’s, and court’s connection to the case Venue focuses on the court within the state, not the whole state

Answer 15

(b) (1) - where defendant resides (not necessarily domiciled … see (c) (2) ) if all defendants from the same state, and the district is in that state (b) (2) - where substantial events of claim occurred (b) (3) - if (1) and (2) fail, any district where defendant is subject to PJ (c) (1) - natural person resides where domiciled (c) (2) - entities (like corp.) reside where they are subject to PJ (c) (3) - foreign defendants (d) - multiple districts in the state, venue for corporations, districts analyzed for PJ as if districts were separate states

Answer 16

PC MIC Proper, Convenience, May, Interest, Consent Convenience of witness / parties Interest of justice Court may transfer Transfer to another proper district Or to which all parties consent

Answer 17

In federal court, state law will be applied in civil action diversity jurisdiction cases () “The laws of the several states, except where the Constitution or treaties of the US or Acts of Congress otherwise require or provide, shall be regarded as the rules of decision in civil actions in the courts of the US, in cases where they apply.”

Answer 18

Supreme Court shall have power to prescribe general rules of practice and procedure and rules of evidence for cases in the US … If there’s a controlling federal rule, it applies as long as the rule is valid, which means: It rationally can be classified as either substantive or procedural, which is often restated as “arguably procedural” AND It does not abridge, enlarge, or modify substantive rights

Answer 19

state law must be applied (unless there is a federal question), regardless of if it is statutory or common law, when a federal court is sitting in diversity

Answer 20

how the state supreme court would (probably) handle the case if it came before them today; intermediate appellate court rulings will be considered

Answer 21

a court ordinarily must apply the choice-of-law rules of the State in which it sits. However, where a case is transferred pursuant to 28 USC § 1404(a), it must apply the choice-of-law rules of the State from which the case was transferred

Answer 22

main holding/aim was that there should not be a substantially different result between filing a suit in state court and filing an identical suit in a federal court that sits in that state Rather than adhere to a strict distinction between substantive and procedural, the Guaranty Trust holding suggests that a better measurement that still stays mostly true to the substantive/procedural approach is whether the application of a federal law/rule/practice would result in a different outcome if the case had been tried in state vs. federal court

Answer 23

if there is a difference in practice that could affect the result of the case, the federal court should adopt the state’s approach

Answer 24

If a law difference between state and federal law/rule is outcome determinative, check for affirmative countervailing considerations (ACC) that might push the balance in favor of applying federal law anyway In Byrd, federal emphasis on the right to a jury trial is so strong that where there was conflict of law on this matter, federal approach should win out. Byrd pointed out that deferring to state substantive law was a constitutional requirement, while applying procedural rules, it is a choice

Answer 25

a potentially overriding federal interest that requires following federal law). If there is an ACC, apply the federal provision. For example, in Byrd, which applied the federal practice (letting a jury decide if plaintiff was a “covered” employee, because 1) federal gov’t had a stronger interest and 2) although it might be outcome determinative, that was far from clear)

Answer 26

Does the Rule control, aka is it “on point?” [Yes? On to question two. No? Do Erie analysis] Does it regulate procedure? [Yes? On to question three. No? Do Erie analysis] Does it abridge, enlarge, or modify substantive rights? [No? Apply Federal Rule. Yes? Do Erie analysis]

Answer 27

Federal Rule = FRCP, not statutes because not enacted by Congress Federal Practice = applying laches instead of SOL, or what is a matter of law vs. fact, for instance Federal Statute = law passed by Congress

Answer 28

Is the state law/provision in conflict clearly substantive? If yes,apply the state law. If it’s not clearly substantive, is it likely to affect the outcome of the case if applied/not applied? If no, apply federal provision. If it is likely to affect the outcome of the case, look to see if there is an affirmative countervailing consideration (some federal interest that is so important that it overrides the outcome determinative test). If there is one, apply the federal provision. If there is not, apply the state provision

Answer 29

Does the LAS authorize personal jurisdiction in cases like this? Is it Constitutional?

Answer 30

to prevent Forum Shopping AND Inequitable Application of Law

Answer 31

“Certain minimum contacts [exist in forum state] that maintenance of the lawsuit in the forum state does not offend traditional notions of fair play and substantial justice.”

Answer 32

Under FRCP Rule 12, a defendant normally has 20 days after being served with the summons and complaint to file an answer or to object to jurisdiction

Answer 33

In order to assert in Rem or Quasi in Rem Jurisdiction, a contacts based inquiry must be applied; in other words, in Rem Jurisdiction now requires a minimum contacts analysis

Answer 34

Less favorable law to Plaintiff in alternative forum cannot be the basis for denying FNC There must be a real alternative forum

Answer 35

When federal statute authorizes nationwide service of process, such as with statutory interpleader

Answer 36

When a party is added to suit through impleader or required joinder AND Party served with process within 100 miles of federal court where suit is pending

Answer 37

1. When the Plaintiff's claim arises from federal law, 2. Defendant is not subject to personal jurisdiction in any state, AND 3. Exercise of jurisdiction complies with US Constitution & federal laws (i.e. defendant has minimum contacts with USA as a whole)

Answer 38

EITHER 1. Amount in Controversy for ANY named plaintiff exceeds $75,000 AND 2. Named opposing parties are citizens of different states OR, under the Class Action Fairness Act 1. Class contains at least 100 members; 2. At least one class member & one defendant are diverse, AND 3. Amount in controversy for aggregated claims exceeds $5 million

Answer 39

NO. Because in-state defendants do not face a risk of bias, the forum-dependent rule prohibits removal when a defendant is a citizen of the state in which the case was filed.

Answer 40

NOT REQUIRED FOR Prejudicial Risk actions: separate actions create risk of inconsistent decisions OR impairing absent members' interests. Class members cannot opt out, so notice is only optional. NOT REQUIRED FOR Final Equitable Relief actions: opposing party's actions generally apply to whole class so injunctive or declaratory relief is appropriate. Class members cannot opt out, so notice is only optional. NOTICE IS REQUIRED FOR Common Question actions: common questions predominate over individual questions AND class action is best method to resolve dispute. Class members CAN opt out, so Notice is Required.

Answer 41

NO (generally). Two exceptions exist (court-ordered examination & exceptional circumstances - see below) Facts known and opinions held by an expert NOT expected to testify, INCLUDING THE EXPERT'S IDENTITY, are privileged and not discoverable unless: 1. That information relates to a court-ordered physical or mental examination, OR 2. Exceptional circumstances make it impracticable to obtain the information by other means.

Answer 42

ICCAACBMP Injunction Certification by District Court Class Action Certification Appointment of Receiver Admiralty Case Collateral Order Doctrine Bankruptcy Cases Mandamus (petition for writ) Patent Infringment Order (only accounting left)

Answer 43

Federal appellate courts cannot hear an appeal UNTIL the district court has entered a final judgment. Even if summary judgment is granted on parts of a claim, if there are still unresolved portions of the claim, there has not been a final judgment and therefore the appellate court does not have jurisdiction yet.

Answer 44

NO. Forum selection clause laws are procedural laws and therefore a state law pertaining to forum selection is not applied in that state's, or any state's, federal court.

Answer 45

Within 90 Days after complaint's filing with the court

Answer 46

Witihn a reasonable time after complaint's service.

Answer 47

Within 90 days after complaint's filing

Answer 48

Within 21 days after complaint's service OR, if service was waived Within 60 days of plaintiff sending the waiver of service request (90 days if outside the US)

Answer 49

Within 21 days after serving of the pleading that states the claim

Answer 50

A reply to an answer does not need to be served UNLESS the court orders it. If the court orders it, it must be served within 21 days after service of the court order, unless the court orders a different deadline.

Answer 51

Within 14 days after the 3d party plaintiff served original answer OR If more than 14 days have passed, by motion for leave to serve a 3d party summons and complaint

Answer 52

As a matter of right, within 21 days after serving the original pleading OR If the pleading requires a responsive pleading, then within 21 days of 1) Responsive pleading OR 2) Motion under Rule 12(b) (whichever is earlier)

Answer 53

Within the later of: a) the time remaining to respond to the original pleading OR b) 14 days after service of the amended pleading

Answer 54

Within 14 days after notice of the court's order

Answer 55

1. Within 14 days after notice of court's order, unless court orders otherwise 2. Within 14 days after notice of court's order, unless the court orders otherwise 3. Before responding to the pleading OR if a response is not allowed, within 21 days after service of the pleading 4. Within 14 days after notice of court's order 5. With the filing party's first appearance, petition, motion response, or other court request

Answer 56

After the pleadings are closed, but early enough not to delay trial

Answer 57

Within 14 days after the discovery conference OR For parties served or joined after discovery conference, within 30 days of being served or joined

Answer 58

Absent a stipulation or court order setting a time and sequence for expert disclosures: 1. At least 90 days before the trial date OR 2. If the witness will be used for rebuttal, within 30 days after the other party's expert witness disclosure

Answer 59

At least 21 days before the court holds a scheduling conference or a schedule order is due

Answer 60

Within 14 days after the discovery planning conference

Answer 61

1. Within 14 days after service of the notice and written questions 2. Within 7 days after service of the written cross-questions 3. Within 7 days after service of the written redirect questions 4. Within 30 days after service of the document request 5. Within 30 days after service of the interrogatories 6. WIthin 30 days after service of the requests, otherwise the matter is deemed admitted

Answer 62

Before the issuing party serves the subpoena on the person to whom the person to whom it is directed

Answer 63

Before the earlier of: 1. The time specified for compliance OR 2. 14 days after service of the subpoena

Answer 64

At least 14 days before the specified hearing date, except when: 1. The court hears the motion ex parte 2. The rules set a different time OR 3. A court order sets a different time

Answer 65

At least 14 days before the specified hearing date

Answer 66

Any time up until 30 days after the close of all discovery

Answer 67

Within 21 days after service of the motion on the opposing party provided the opposing party did not withdraw or correct the challenged paper, claim, defense, contention, allegation, or denial

Answer 68

At least 14 days before the trial date

Answer 69

Within 14 days after service of the offer of judgment

Answer 70

Within 30 days after entry of the judgment or order appealed from OR Within 60 days after entry of the judgment or order appealed from if one of the parties is: 1. The USA 2. A US agency 3. A US officer or employer sued in an official capacity 4. A current or former US officer or employee sued in their official capacity

Answer 71

Within 30 days after 1. The defendant receives the initial pleading through service or otherwise OR 2. Service of the summons on the defendant, if service of the initial pleading is not required

Answer 72

The executor is a citizen of the state of which the decedent was a citizen.

Answer 73

A court may relieve a party from a final judgment or order for a motion filed, within a reasonable time, and no later than one year following the entry of the judgment or order for mistake, inadvertence, surprise, excusable neglect, newly discovered evidence that could have been discovered with reasonable diligence, fraud, misrepresentation, or misconduct. Both extrinsic and intrinsic fraud can provide grounds for relief from final judgment under these circumstances.

Answer 74

Intrinsic Fraud: fraud relating to a matter tried by the trier of fact Extrinsic Fraud: fraud that prevents a person from discovering or enforcing legal rights

Answer 75

If a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in his own pleading. If a party has presented only conclusory allegations and denials, the court should grant the opposing party's motion for summary judgment.

Answer 76

The defendant must, within 14 days after receiving notice of the court's decision on the motion, file its answer.

Answer 77

YES. A counterclaim must either satisfy SMJ on its own or arise from the same case or controversy as the anchor claim for supplemental jurisdiction.

Answer 78

YES. This is within the constitutional limits of personal jurisdiction, particularly because the defendant could say it availed itself of resources there or possibly that the cause of action arose there.

Answer 79

In the pre-answer motion or answer, whichever is first.

Answer 80

1. De Novo 2. Abuse of Discretion 3. Clearly Erroneous 4. Plain error

Answer 81

YES. If a pleading contains an insufficient defense, a party must move to strike the defense from the pleading either before responding to the pleading or, if a responsive pleading is not permitted, within 21 days after being served with the pleading.

Answer 82

Generally, a remand order is not reviewable on appeal or otherwise. Exception: A class action remand order is reviewable only if the appeal is made not more than 10 days after the entry of the order.

Answer 83

At least one plaintiff must be diverse from one defendant, and the defendant resides in a state different from the state where a substantial part of the accident took place.

Answer 84

NISE Not Inexecusable Serious Extreme Even though a judge can impose some sanctions for missing a hearing (or other impermissible action), dismissing an action is a severe sanction and is therefore not an appropriate one when the party's conduct is not serious, extreme, or otherwise inexcusable.

Answer 85

After the jury returns a verdict but before the jury is dismissed, the court must poll the jurors individually if a party requests.

Answer 86

The plaintiff can request that the court clerk enter a default, which the clerk must do if the plaintiff can establish the defendant's failure, usually by an affidavit. A default judgment against the defendant must be preceded by the entry of a default by the court clerk.

Answer 87

NO. Although federal courts could technically have diversity jurisdiction over a domestic-relations proceeding, federal courts have traditionally declined to exercise jurisdiction over domestic-relations matters.

Answer 88

When the United States is a defendant. The U.S. attorney for the district in which action has been filed also must be served. The U.S. Attorney General must be sent a copy of the summons and complaint by registered or certified mail.

Answer 89

NO. A person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction or destroy venue must be joined as a party if the party's participation in the lawsuit is necessary for a just adjudication. HOWEVER, tortfeasors facing joint and several liability are not considered necessary parties.

Answer 90

Under the FRCP, a jury verdict MUST be unanimous, UNLESS the parties stipulate otherwise.

Answer 91

When ANY member of the class is diverse from the defendant.

Answer 92

CANT Commonality Adequacy Numerosity Typicality 1. Numerosity - The class must be so numerous that joinder of all members is impractical 2. Commonality - There must be questions of law or fact that are commont to the class 3. Typicality - The claims or defenses of the representatives must be typical of the class 4. Adequacy - The representatives must fairly and adequately protect the interests of the class

Answer 93

RIT Relief Injury Traceable The plaintiff must have: 1. Injury in fact 2. An injury that was fairly traceable to the challenged action AND 3. A request for relief that prevents or redresses the injury Standing requires a concrete and particularized injury, even in the context of a statutory violation

Answer 94

The US citizen is a citizen of the other country, and is domiciled there. The US citizen has no domicile in the US and is therefore diverse from all parties domiciled in the US when a diversity jurisdiction lawsuit is filed in the US.

Answer 95

-Cases involving foreign ambassadors, public ministers, or consuls -Cases between the US and a state -Cases between a state and citizens of another state or noncitizens

Answer 96

CSBRE Court Stipulation Before Response Evidence 1. With permission from the court 2. When all parties who have appeared sign stipulation of dismissal OR 3. When the claimant files a notice of dismissal before a) responsive pleading (answer) served OR b) evidence introduced at hearing or trial, if no responsive pleading was served

Answer 97

A party may not seek discovery until the parties have held an initial planning conference. If a discovery request is served before this conference is held, the court would likely grant a protective order to shield the served party from the undue burden of responding to that request.

Answer 98

Purposeful Availment: The defendant's contacts with the forum state must be purposeful and substantial, such that the defendant should reasonably anticipate (foresee) being taken to court there. Purposeful Availment: 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 99

MAYBE. To determine whether the corporation is subject to a state's general jurisdiction, the proper inquiry is 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. For example, despite building 2,000 miles of railroad track and employing 2,000 people in a forum state, the court decided that because the 94% of defendant business's total track and 95% of its workforce were outside the state. For another example, when operating a website with the purpose to assist in conducting direct business transactions in a particular state, PJ is likely; while merely operating a website where information can be retrieved from a computer in a particular state, PJ is unlikely.

Answer 100

Intentional Relevant Diligence The non-spoliating party is entitled to a REBUTTABLE presumption that the destroyed evidence would have been unfavorable to the party that destroyed it. The non-spoliating party must prove that: a) The destruction was intentional b) The destroyed evidence was relevant to an issue about which the party seeks the inference AND c) The injured party acted with due diligence in seeking the evidence

Answer 101

YES, if the party against whom they are assessed acted in bad faith. In a diversity case on a state law claim, the federal court may properly use its inherent power to assess attorney's fees as a sanction for a defendant's bad-faith conduct during the litigation, even if the law of the forum state provides that attorney's fees may not be awarded to a successful party.

Answer 102

NO. If the federal law claim has been dismissed and leaves only a state law claim, the federal court MAY decline to exercise supplemental jurisdiction over the supplemental claim, but it does not have to.

Answer 103

A district court with proper venue can transfer venue for 1. the convenience of parties 2. and witnesses, 3. and in the interest of justice, to any judicial district where EITHER 4. the suit could have been originally brought, such as where ---a) any defendant resides, if all defendants reside in the same state; ---b) a substantial part of the events/property gave rise to the suit occurred, or ---c) any defendant is subject to the court's personal jurisdiction (if neither a or b applies) OR 5. to which all the parties have consented

Answer 104

NRDS Notice Reasons Describe Specify 1. Notice of hearing, THEN, in court order: 2. State reasons issued 3. Reasonably describe acts restrained or required 4. Specify terms

Answer 105

E RDS DIWF Ex Reasons Describe Specify Date Irreparable Without Filed 1. Ex parte (no notice required) THEN, in court order: 2. State reasons issued 3. Reasonably describe acts restrained or required 4. Specify terms 5. Date & hour issued 6. Why injury is irreparable 7. Why issued without notice 8. Promptly filed with clerk & entered into record

Answer 106

Same Notice Knew Mistake Identity When the statute of limitations has expired and a party wants to add a party to a suit that was filed before the statute of limitations expired, it is permitted only when: 1. The amendment concerns the same transaction or occurrence as the original complaint 2. The new party received notice of the suit within 90 days after the original complaint was filed AND 3. The party knew or should have known that the suit would have been brought against it BUT FOR A MISTAKE concerning the party's IDENTITY

Answer 107

To challenge an error in jury instructions on appeal without having objected, the challenged error can only be reviewed for plain error

Answer 108

When it: 1. Arises from the same transaction or occurrence as the opposing party's claim AND 2. Does not require adding a party over whom the court cannot acquire jurisdiction, which MUST be asserted in the pending lawsuit or it is waived

Answer 109

When an action involves multiple claims or parties, a district court MAY enter final judgment as to fewer than all claims or parties and certify the judgment for immediate appeal if it expressly determines that there is NO JUST REASON FOR DELAY. For no just reason to delay to exist, courts generally require that the adjudicated and unadjudicated claims be separate and distinct.

Answer 110

Only to prevent manifest injustice.

Answer 111

A JMOL requires that the evidence to support the claim is legally insufficient for a reasonable jury to find in nonmovant's favor.

Answer 112

FEDERAL LAW. Discovery rules are procedural.

Answer 113

Venue is proper in: 1. EITHER ....a) the district in which any defendant is domiciled, if all the defendants are domiciled in the same state ....OR ....b) the district where a substantial part of the events or omissions occurred, or where the property at issue is located; OR, if 1a and 1b fail, 2. In any district where any defendant is subject to PJ

Answer 114

NO. Because compulsory counterclaims fall under supplemental jurisdiction, a compulsory counterclaim against a third-party defendant does not require diversity with the defendant launching the counterclaim.

Answer 115

The appellate court will generally accept the trial judge's findings of fact and set them aside only if they are CLEARLY ERRONEOUS.

Answer 116

YES. FRCP allows a party to move for extraordinary relief from a court's final judgment on limited grounds. While the motion must typically be made within one year from the court's judgment, this requirement is waived when the judgment is based on an earlier judgment that has since been vacated or reversed, provided the appeal to the more recent case is prompt.

Answer 117

Additur is a request that a court increase an allegedly inadequate jury award of damages. Though allowed in many state courts, additur is NOT allowed in federal court because it violates the Seventh Amendment right to a jury trial. Remittitur is a request that the court reduce an allegedly excessive jury award of damages. If the request is granted, the opposing party must choose between 1) a reduction in damages and 2) a new trial on damages. Remittitur does NOT violate the 7th Amendment because the jury has already determined the damages and the court is simply trimming the excess.

Answer 118

Without leave of court, each group of parties are limited to 10 depositions by oral or written examination. "Groups of parties" are 1) plaintiffs, 2) defendants, and 3) third-party defendants. To exceed 10 depositions, the other parties must agree to permit the excess, or the group must gain leave of court.

Answer 119

In order for a federal trial to have jurisdiction based on diversity of citizenship, the complaint must contain a statement of the grounds for the court's jurisdiction, and must state the reason for diversity based on CITIZENSHIP, NOT RESIDENCY.