CIV PRO Flashcards
(140 cards)
1
Q
If an action involves legal and equitable claims that raise issues of fact common to both. Can Jury and the court decide the claims in what order
A
Jury decides legal claim first and court decides equitable claim later
2
Q
Does default judgment constitute issue preclusion
A
No, the issues must have been actually litigated
3
Q
SJM based on diversity requirements
A
AIC more than 75k
Opposing parties are diverse
4
Q
Can a Fed court hear state law claim when the federal law claim is dismissed
A
Yes the court may hear the state-law claim if it is so related to the federal claim that they form part of the same case or controversy but not required to hear it
5
Q
What is the forum defendant rule
A
prohibits removal when 1) solely diversity jdx and 2) defendant is a citizen of the state in which the case was filed.
6
Q
How many days a defendant have to file removal
A
30 days from service of the summons or the receipt of a complaint that sets forth a removable case
7
Q
When will challenge to PJ be waived
A
If not made in 1) original answer or 2) an answer amended without the court’s permission within 21 days after the original answer was served
8
Q
How many days before a defendant needs to respond to waiver of service
A
at least 30 days after the request was sent if in the U.S. No deadline if no requirement to return a waiver request
9
Q
When can a venue be transferred
A
1) where the suit could have been originally brought
2) or consent of all parties
Proper if any D resides, a substantial part of the events happened there, or any D is subject to the court’s PJ
10
Q
TRO requirement
A
1) Reason why it was granted
2) reasonable depiction of the prohibited or commanded acts, made without reference to the complaint or another document
3) specific terms
11
Q
Relation back doctrine if adding a new party
A
1) same transaction or occurrence
2) new party received notice of the suit within 90 days after the original complaint was filed
3) the new party knew or should have known that the suit would have been brought against it but for a mistake concerning the proper party’s identity
12
Q
How to challenge an error in jury instructions on appeal
A
Generally must object at trial, if not, can only be reviewed for plain error.
An appeal will be heard if the appellant shows that an obvious error affected a substantial right and the fairness of judicial proceedings.
13
Q
When will a voluntary dismissal be permitted
A
Without prejudice unless previously dismissed federal or state action based on the same claim
1) all the parties sign a stipulation of dismissal
or 2) P can file a notice of dismissal before D serves answer or a motion for summary judgment
If not then need court order
14
Q
Jury size
A
At least 6 and no more than 12
15
Q
Jury verdict
A
Must be unanimous and returned by at least 6 jurors unless the parties stipulate otherwise
16
Q
when does Choice of law apply
A
Choice of law decides which state’s substantive law to apply in a diversity action
17
Q
What if it is unclear whether an issue is substantive or procedural
A
If a valid federal law directly addresses the issue and it is procedural and does not modify a substantive right because it regulates the process of raising an affirmative defense- not a a defendant’s right to raise the defense, then federal law governs.
18
Q
What is Compulsory counterclaim
A
Same transaction and occurrence
Does not require adding a party over whom the court cannot acquire jurisdiction
Must be asserted in the pending lawsuit or it is waived.
19
Q
Sanctions for failure to preserve ESI
A
20
Q
Motion for Judgment as a matter of law
A
21
Q
How to alter jury award
A
22
Q
Specific vs General Jdx
A
23
Q
What is the proper service of process
A
24
Q
What is the two - dismissal rule on voluntary dismissals
A
25
When can a federal court hear a probate matter
While federal courts generally do not exercise diversity jurisdiction over probate matters, this restriction is narrowly construed and primarily applies to the probate of a will or the administration of a decedent’s estate.
26
When can fed court exercise supplemental jurisdiction over state law claim
The court can exercise supplemental jurisdiction over the state contract claim because it arises out of “a common nucleus of operative fact” as the federal claim
Federal court constitutionally can exercise supplemental jurisdiction over a state-law claim if, as is likely in this case, the state-law claim is so related to the federal law claim that the two claims form part of the same case or controversy under Article III of the U.S. Constitution.
26
What is the requirement for a statutory interpleader action
$500 or more, rather than exceeding $75,000 as otherwise required for a diversity action.
diversity jurisdiction is met if any two adverse claimants are citizens of different states.
27
What is required for initial disclosures
Among the initial disclosures that a party must make is a computation of each category of damages claimed by the disclosing party, who must also make available for inspection and copying the documents or other evidentiary material on which each computation is based. Generally, a party must make these initial disclosures at or within 14 days after the parties’ Rule 26(f) discovery conference. However, as with many discovery rules, the parties may agree to modify the time in which initial disclosures must be made.
28
Issue Preclusion vs Claim preclusion
The doctrine of issue preclusion, often called “collateral estoppel,” precludes the re-litigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties. Issue preclusion requires that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action.
29
Can attorney's fees be awarded as sanctions?
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.
30
Is a claim frivolous if based on future possibly discoveries?
By presenting to the court a pleading, written motion, or other paper, an attorney or unrepresented party certifies that, among other things, to the best of her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
31
When is venue proper Federal civil action
In general, venue in a federal civil action is proper in only one of the following judicial districts: (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located, or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located.
32
Do defendants need to agree to improper venue objection?
any defendant may raise the issue of improper venue. All defendants need not join in contesting the plaintiff’s choice of where to bring an action.
33
Is class member bound by class action judgment
In a class action certified under Rule 23(b)(3), a class member who does not opt out is bound by the judgment. Here, the class action was brought under Rule 23(b)(3) because the court certified the action on the basis that questions of law common to the class members predominated over any questions affecting only individual members. Consequently, the class member was bound by the judgment in the class action lawsuit.
(b) 1 2 has different rules
34
Will a matter be deemed admitted if no answer
A matter is deemed to be admitted unless the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney. A matter admitted is conclusively established, but only in the pending action; it cannot be used against the party in any other proceeding.
35
When can a party be relieved from judgement under rule 60(b)
Under Rule 60(b), 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 not have been earlier discovered with reasonable diligence, fraud, misrepresentation, or misconduct by an opposing party. Under this rule, both intrinsic fraud, which is fraud relates to a matter tried by the trier of fact, and extrinsic fraud, which is fraud that prevents a person from discovering or enforcing legal rights, can serve as grounds for relief.
36
Timeline for motion for the court to alter or amend a judgment under Rule 59e
this motion must be made within 28 days of the entry of the judgment.
37
Rule 60(a)
allows a party to move a court to correct a clerical or other mistake resulting from an oversight or omission whenever one is found in a judgment, order, or other part of the record.
38
60(d)
a motion to set aside a judgment for fraud on the court is available only for fraud that seriously affects the integrity of the normal process of adjudication, such as bribery of a judge or a juror or the fabrication of evidence by a party in which an attorney is implicated. Mere perjury by a witness does not itself constitute a fraud on the court.
39
Can a plaintiff initial removal?
No
40
What parts of the pleading can be stricken and how
If a pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material, then the court, upon motion or upon its own initiative, may order that such defense or material be stricken.
41
Does motion to strike need to be made before answer
yes
42
Special damages need to be pled speficically?
Yes, if not motion for more definite statement
43
Sanctions for noncompliance with pretrial conference or order
44
District court's factual findings in a bench trial are reviewed under which standard of error
45
Sanctions for violating FRCP 11(b)
46
Claim preclusion v. Issue preclusion
Actually litigated - submitted to the trier of fact, not merely stipulated, conceded, or admitted
47
Class action certification requirements
47
Burden of proof for summary judgment
48
Subject Matter Jurisdiction
49
Initial Conference timing
50
Proper venue for suit against federal officer or employee
51
Appellate standards of review
52
Motion for summary judgment
53
Diversity of citizenship involving non citizens
54
Implied causes of actions for damages
54
Can fed court fill a gap in a federal statutory scheme
55
Sovereign immunity
55
When can the defense of failure to state a claim upon which relief can be granted be raised
Any time before the end of the trial. Not waived
56
Substantive due process
56
Dormant commerce clause analysis
57
Enforcement clause
58
Which clause governs denying out-of-state citizens a right of state citizenship
Article IV privileges and immunities clause
59
When can Congress abrogate state immunity.
Bankruptcy exceptions
60
Right to travel
Entitle to necessities benefits
61
Child with disabilities a suspect class
No. Only race, religion, national origin, alienage
Gender quasi suspect class
62
Can President be delegated discretional matter
Yes through Article II power
63
Elections clause
The Elections Clause of Art. I explicitly empowers Congress to override state laws concerning federal elections. This express provision makes irrelevant general principles of federalism embodied in the “commandeering” cases.
64
Can 13th amendment against slavery be used broadly
the Thirteenth Amendment does not require state action. Rather, it abolishes slavery and its “badges and incidents,” including racial discrimination in private transactions like contracts.
65
Legislative veto
Congress cannot authorize a legislative committee to “veto” agency regulations. The Constitution requires that legislative power be exercised in accord with the bicameralism (i.e., passed by both Houses of Congress) and Presentment Clauses of Article I (i.e., the requirement that, in order for a bill to become law it must be presented to the president for approval or return).
66
The Article IV Privileges and Immunities Clause prohibits a state from discriminating against nonresidents with respect to
the exercise of a fundamental right or engagement in an essential activity, such as earning a living, unless there is substantial justification for the discrimination.
67
Attachment jurisdiction
Under “attachment jurisdiction,” which was historically a type of quasi-in-rem jurisdiction, a plaintiff could use attachment of property in the forum state to obtain jurisdiction. Under current precedent, however, there must be minimum contacts between the defendant and forum state to establish jurisdiction.
68
In rem jurisdiction
in rem jurisdiction, which is the authority of a court to determine issues concerning rights in property, is applicable only when the suit concerns the property,
69
Timely expert witness disclosure
Expert witness disclosures must occur at least 90 days before the date set for trial
70
Claim preclusions different claims
The federal court’s final judgment in the first case precludes the plaintiff from litigating the identical claim in the second action against the same defendant.
the inquiry focuses on whether the two actions arose out of the same transaction, not on whether different federal statutes may have been violated.
71
Diversity of citizenship involving an insurer
an insurer is also deemed to be a citizen of the insured’s state when the insurer is sued in a direct action
72
alternative and inconsistent allegations
Both alternative and inconsistent defenses may be alleged in an answer.
73
the Class Action Fairness Act of 2005
the total amount in controversy must exceed $5 million
only minimal diversity between the parties is required.
74
Judgment as a matter of law timing
A court may not grant a motion for a judgment as a matter of law when the motion is made for the first time after the jury has rendered its verdict
while the court may grant a motion for a judgment as a matter of law that is initially made before the case is submitted to the jury and renewed after the jury renders its verdict,
74
the disclosure of liability insurance?
Unless otherwise agreed by stipulation or ordered by the court, each party must provide to the other parties for inspection and copying, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
75
Appeal as a matter of right
Although most non-final (interlocutory) orders cannot be appealed, orders concerning injunctions are appealable immediately as of right.
Within 30 days
76
Can court alter the 10 deposition limit?
Yes with requesting leave
77
Remedies for failure to attend oral deposition
78
Procedural due process burden of persuasion
79
State-election restrictions
79
Conditions on government funding
80
Removal of federal judges
81
Congress's taxing power
82
Procedural for filing an anser
A defendant has 21 days after being served with the complaint and summons to serve an answer unless the defendant responds by filing a pre-answer motion under Rule 12. An answer generally must be served on plaintiff’s attorney if the plaintiff has an attorney. Service of an answer may be made by leaving it with a person in charge at the attorney’s office. The answer must also be filed with the court clerk within a reasonable time after service.
83
How to join defendants in a single action
the plaintiff’s right to relief must be asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence.
While the right to relief must be attributable to the defendants jointly, severally, or in the alternative, the plaintiff need not establish that the defendants acted in concert in order to join them in this action.
84
Supplemental jdx with permissive joinder of plaintiff
Although supplemental jurisdiction can exist when a plaintiff seeks to join a diversity action pursuant to the permissive joinder rule, the plaintiff must satisfy the diversity-of-citizenship requirement.
does not need to meet the amount-in-controversy requirement
85
Serving interrogatories
Interrogatories may only be served on a party to a lawsuit; they may not be used on nonparty witnesses.
86
Can fed court transfer case to state court
No
87
When can a case be remanded
originally brought in a state court in State A or removed to the federal court in State B from a state court,
88
Deadline to file a notice of appeal
89
Post trial relief
90
Class action substantive or procedural?
91
Motion for more definite statement
92
Can a verdict be returned with less than 6 jurors?
Yes if stipulated
93
cross claim
A cross-claim may be asserted by a defendant against another defendant or by a plaintiff against another plaintiff if the cross-claim arises out of the same transaction or occurrence as the initial claim, without regard to the amount in controversy or the citizenship of the parties to the cross-claim as long as the court has subject-matter jurisdiction.
94
A federal appellate court is bound by the decision of a state’s highest court ?
A federal appellate court is bound by the decision of a state’s highest court on an issue even if it is handed down after a federal district court action on that issue was completed. The federal appeals court is bound by that ruling, so long as the final appeal has not been disposed of in the matter.
95
failed to state a claim upon which relief could be granted. Can court consider matters outside the pleading
The court can grant a motion to dismiss if the claim fails to assert a valid legal theory of recovery or fails to allege facts sufficient to support a cognizable claim. However, if the court considers new evidence in its review of a motion to dismiss, as it did with the affidavit here, it should treat the motion as a motion for summary judgment rather than a motion to dismiss.
96
Findings of fact cannot be set aside unless
learly erroneous, and due regard must be given to the trial court's opportunity to judge the credibility of the witnesses.
96
How should people response to a motion to summary judgment
If a motion for summary judgment is properly made and supported, an opposing party may not rely merely on the allegations or denials in her own pleading. The opposing party must either set out specific facts showing a genuine dispute for trial or show by affidavit or declaration that, for specified reasons, she cannot present facts essential to oppose the motion. If the opposing party does not so respond, then summary judgment, if appropriate, will be entered against that party.
A party may submit documents or other materials, even if they are in a form that is inadmissible at trial, so long as the facts contained in the materials are admissible at trial.
97
forms of a jury verdict
The Federal Rules of Civil Procedure permit the use of three forms of a jury verdict—general, general with special interrogatories, and special. The choice of which form of verdict the jury must return is left to the discretion of the court. Unless the chosen form of verdict constitutes an abuse of discretion, a party’s challenge to the form selected by the court is unlikely to be successful.
a federal court is not bound by a state law that requires the use of a special verdict, even in an action based on diversity jurisdiction, because jury verdicts concern procedural rather than substantive law.
98
A scheduling order can be modified if
The moving party shows good cause?
The judge consents to the modification
99
Judgment on the pleadings when the pleadings close
100
Permitted extensions
100
extraordinary relief from a final judgment
101
can fed court has jdx over state law class if fed law claim is dismissed?
Yes through supplemental jdx
102
Whether a class action is permitted is procedural?
Yes
103
standard whether to amend the court's final pretrial order
Only to prevent manifest injustice
104
JMOL legal standard
whether there is sufficient evidence to find for the nonmovant's favor
105
Federal law determines the effects under the rules of res judicata of a judgment of a federal court?
However, federal common law requires that the claim-preclusive effect of a judgment by a federal court sitting in diversity must be governed by the law of claim preclusion of the federal court’s forum state, unless the state law is incompatible with federal interests.
106
Required joinder of parties
107
Subsidiary PJ established by Parent PJ?
108
Special Venue rules
109
Grounds for new trial
110
Grounds for relief from a final judgment
111
Stay of enforcement/execution
112
Retroactive damages vs. Prospective damages and injunction
113
Parental right procedural due process
Clear and convincing evidence is better and preponderance of evidence
114
Assessing the validity of presidential actions
115
Possession of drug crime
116
Methods of serving process in foreign country
117
Article I powers to raise and regulate the US armed forces
118
Provisional remedies
119
tTransient or tag jurisdiction
120
Presidential election process
121
Effect of judge's inability to proceed
122
Rule interpleader vs Statutory interpleader
123
Voting protections amendments
124
Appointment clause (timeline)
125
Entering default judgment
126
Notice and binding effect of class action suits
127
Discovery of privileged information
128
In Rem Jurisdiction
129
Minor's service of process
130
Special service of p
131
