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MBE ISA > CIV PRO MBE > Flashcards

CIV PRO MBE Flashcards

1
Q

Subject Matter Jurisdiction

A

Court is trying to get jrds over case

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2
Q

What are the two types of SMJ Cases?

A

Diversity & Federal Question

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3
Q

SMJ - Diversity (2) Requirements

A

(1) Case must be over 75k

(2) Complete diversity of citizenship

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4
Q

SMJ Diversity 75k Rules

A

Can add in other claims against single defendant to get to 75k

Can add additional claims that aren’t up to 75k if first claim is 75k

Multiple P’s
- If one p has a claim over 75k the other p’s can get in too even if claims are lower

  • If none of you have claims up to 75k cannot combine to get in

Class actions
- As long as one member of the class has a clim over 75k then all other members can get in

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5
Q

Complete Diversity of Citizenship

A

NO P AND D CAN RESIDE IN THE SAME STATE

Domiciled:
- where you are present + have an intent to stay

Foreign Country:
- Citizen state A vs foreign country - COUNTS AS DIVERSITY
- Two foreign citizens = NOT DIVERSITY

Corporation:
- Citizen of any state they are incorporated and/or PPB

Intentional joining:
- cannot join a party just to get diversity

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6
Q

Federal Question

A

P’s claim must be about a federal law/federal issue

Well-pleaded complaint Rule:
- Must be obvious that the issue is federal!!

If federal issue is a defense = no federal issue!!!!!

Federal question cases:
- IP, marintine, and admiralty

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7
Q

Supplemental Jrds

A

Court adds case or parties to a current case that already has SMJ

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8
Q

Where is Supplemental Jrds allowed?

A

New case or party

Federal Question:
- Derives from common nucleus affect
- Same t/o
-Came car accident, same thing

Diversity:
- Derives from common nucleus affect
- New case or party cannot destroy diversity of citizenship

TYPICALLY ONLY D IS THE ONE ADDING IN NOT THE P - COURT HAS DISCRETION

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9
Q

Cases Allowed/ Not Allowed Supplemental Jrds

A

Allowed:
- Compulsory counterclaim
- Joinder in compulsory counterclaim
- Cross claim
- Impleader of 3rd party defendants

Not allowed:
- Original plaintiff v 3 party D
- Compulsory joinder
- Joinder of defendants
- Intervention

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10
Q

Personal Jrds (PJ)

A

getting an individual in court

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11
Q

How can you get PJ?

A

(1) Served with complaint while present in state
- if forced there -> doesn’t
count (fraud or diff lawsuit)
(2) Domiciled in State

(3) Consented to be sued there (long arm)

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12
Q

PJ - Out of State Defendant (long arm statue)

A
  • Are there minimum contacts with the forum?
    - You visit multiple times a year,
    have family there, business
    relationships there
    - Does the person reasonably
    anticipate that they may litigate
    there?
  • Cannot violate DP

Corps: Minimum contacts
- Did the business purposely avail itself to the state?
- Are there activities systematic and continuous
- Reps, offices, sales people in
that state

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13
Q

In Rem Jrds

A

Trying to get jrds over property or object

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14
Q

Quasi In Rem Jrds

A

Going after property of someone to satisfy a judgment

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15
Q

Service of Process (where location)

A
  • Only in limits of state where district courts sit OR
  • Anywhere else that state law (long arm statue) allows

Exception:
- 100 mile bulge rule
- Out of state service is allowed
against out-of-staters anywhere
within 100 miles of courthouse
where suit is pending but ONLY
APPLIES TO 3P DEFENDANTS
OR INDISPENSABLE

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16
Q

Service of Process (how)

A

Personal Service
- handed directly to you
- someone over 18 who is a NON PARTY!!

At Home:
- Can leave complaint at house as long as it is left with someone of suitable age (someone likely to give it to you)

First Class Mail:
- Returns an acknowledgment or waiver form

Authorized Agent:

Whatever State law allows:

Out of Staters:
- Registered mail
- Newspaper if no other
reasonable way

Public Official:

Corporation:
- Officer or designated agent of company
- Anyone of high placement

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17
Q

Removal - DEFENDANT

A

ONLY D CAN REMOVE!!!!!

A case is in state court -> but wants to be removed to fed court
Exception:
-If it says its in a state agency or
other state entity -> can’t be
removed

Removal is ok if the case could have gone to federal court in the first place

All d’s have to be on notice of removal and agree

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18
Q

Remand - PLAINTIFF

A

P tried to get the case back to state court b/c removal was improper

Must file to remand within 30 days of the removal notice

D has the burden to show that removal was proper

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19
Q

Removal - Notice Of Removal

A

Must file notice w/the court within 30 days of getting served with original complaint

Diversity:
One year rule: cannot be removed if one year has passed since start of the lawsuit

D cannot remove to a state where he/she is a citizen

Multiple claims
If one claim is removable -> the entire case can be removed

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20
Q

Venue

A

(1) district where any D resides
(2) any district where substantial
parts of the event took place
IF THERE IS NO OTHER DISTRICT THAT IS PROPER:
(3) wherever one person is reachable (where you have PJ over DEFENDANT)

Corporation:
- Where the PPB is OR
- Any district in state they are incorporated

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21
Q

Forum Non-Conveniens: Transferring Venue

A

If venue was proper in first place -> but someone wants case to be transferred to another district -> judge decides if it is convenient for the parties and in interest of justice

Law of original state will apply

If venue was not proper -> judge must dismiss case or if in the interest of justice -> may be transferred to any district where the case might have been originally brought

Not totally convenient -> both parties consent

Dismissal
If it is more convenient in another country -> case is dismissed

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22
Q

Complaint

A
  • Filed with court with a summons
  • Served to the other party
  • when SOL begins

Elements:
- Short and plain statement for jrd
- Summary of facts (not legal theory)
- Demand for relief (damages)
- The complaint needs more specifics if
- Fraud
- Special damages

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23
Q

Answer

A
  • Signed by lawyer
  • Served within 21 days
  • Can deny or admit anything in the complaint
  • Whatever is not denied is admitted
  • Any affirmative defenses must be pleaded in the answer
    • Contributory neg
    • SOF
    • SOL
    • Illegality
    • Duress
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24
Q

Amending Pleading

A
  • Can amend once as long as within 21 days of the original pleading
  • Need permission of court if not within 21 days
    Court allows if “justice so requires”
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25
Q

Relate Back

A

Want the amended pleading to revert back to OG date

  • Changing a party
    Allowed if:
    - same conduct or t/o
    - Notice within 90 days to new
    party
    - The new party knew or should’ve known that they would be sued but for a mistake in party ID
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26
Q

Rule 11

A

Lawyer is signing, submitting or filing a doc to the court

Promising that what they are submitting is true to best of their knowledge

Basically making sure lawyers aren’t submitting random shit
- Allegations warranted by existing law
- Evidentiary support
- No improper purpose

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27
Q

Counter Claim

A

A sues B & B sues A back

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28
Q

Compulsory counter claim

A

Same t/o
Court already has supplemental jrd

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29
Q

Permissive Counter Claim

A

Not same t/o
Needs it’s own jrd

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30
Q

Permissive Joinder

A

Multiple p’s can join together to sue someone
Come from same t/o
Question of law or fact is common

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31
Q

Compulsory Joinder

A

Party must join b/c would be unfair to litigate without them

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32
Q

Necessary Parties

A

Need to be joined b/c complete relief cannot occur
Leaving them out would impair their interest
If joining them destroys jrd = case may still PROCEED

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33
Q

Indispensable Parties

A

If you don’t join them would prejudice them
If joined them and destroys jrd = case is DISMISSED

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34
Q

Class Action Requirements

A

(1) size
- Must be so large that little claims would be impractical

(2) common question
- The issue must all of same law or fact

(3) typicality
- Claims have to be typical of the
other hundred thousands

(4) fair representation
- The reps have to be fair to all members

if request for a CA is denied -> can be appealed & others can move fwrd w/o you

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35
Q

3 Types of Class Actions

A

(1) B1
- If it is not a class action it would impair interest of members

(2) B2
- Injunctive relief

(3) Common Question (most popular)
- tort/injury

B1 & B2
MAY NOT OPT OUT
NO NOTICE REQUIRED (court discretion)

B3
MAY OPT OUT
NOTICE REQUIRED TO ALL MEMBERS
Mail is ok to reach out

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36
Q

Diversity Class Action

A

Citizenship of representative that counts!!!!

Only one member has to have a claim over 75k -> everyone else can join in under the 75k

Exception: if cumulative claims is over 5 mill -> don’t need to meet the 75k

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37
Q

Intervension

A

Someone who is not part of the original suit -> wants to come in on their own

As of right:
- Do not need court permission if
have an interest in prop or.
transaction
- impair them if not included

Permissive:
- Common question of law or fact
- Court permission is required

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38
Q

Impleader

A

D believes a 3P owes part or all of the claim
Ex: John sues Isa - Isa thinks someone owes money too
- Contribution
- Indemnification

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39
Q

Two types of Interpleader

A

Statutory Interpleader
- Nationwide service of process is allowed (doesn’t matter where they live)
- Any two claimants can be diverse
- 500 or more
- Deposit money/prop with court

Rule Interpleader
- Complete diversity is required between all
- No nationwide service
- 75k requirement
- No need to deposit money in court

40
Q

Interpleader

A

1 party owes something to 2 or more ppl -> doesn’t know how much or who so can force the person to fight it out amongst themselves

41
Q

What can be discovered?

A

anything:
- Relevant
- Not privileged
- Proportional to the needs of the case

42
Q

Cross-Claim

A

Sue a co-party
ex: A sues B & C
Cross claim: B sues C

Cross-claims must arise from the same transaction or occurrence as the underlying action

43
Q

Work Product

A

generally not available to discover/immune

Unless:
- substantial need for
material and you can’t get
without undue hardship by
any other means

Absolute immunity
- Legal opinions
- Conclusions
- Mental impressions

44
Q

Discovery: Witnesses

A
  • Names and locations of all possible witnesses is all discoverable

Expert Witnesses
- The party must give other side the list of each expert who will testify
will prepare a report with:
- Compensation
- Name
- Info
- All information they will
testify over

Experts who will not be a witness:
- Only discoverable if there are exceptional circumstances

Any info that is wrong or incomplete - must supplement or fix it within a reasonable time

Methods
Don’t need court intervention -> done b/w the parties

45
Q

Deposition

A
  • Between party or non-party
  • Oral or written

Non-Party:
- Can force them to take depo via subpoena

Party:
- Make them take depo or can get them for sanctions

Limit on Depos:
- 10 depos per side - one per person
- Can’t depose someone twice w/o court permission

46
Q

Interrogatories

A
  • Written questions/statements
  • only to a PARTY!!
  • 25 per party
47
Q

Request to Produce Docs

A

Party can request production of documents in other sides possession control or custody
- Papers
- photographs

48
Q

Physical or Mental Exam

A

Want other party to submit to a physical or mental exam
- Must be an issue in case
- Court order
- Good cause

49
Q

Sanctions for Failure to Comply with Discovery

A

Sanctions (least to greatest)
- fees/costs for time from
other side
- Facts to be established
- Dismiss an action
- Hold you in contempt

All discovery is admissible at trial!!!!!

50
Q

Pre-Trial Conference/Orders (3)

A

(1) Conference of the parties (MUST)
- Parties must meet to talk about the case, settlement, and talk about discovery plan (submit to court)

(2) Scheduling Conference (MUST)
- Must have conference to limit time
- Must issue scheduling
order within 90 days of
filing complaint

(3) Final Pre-Trial Conference (MAY)
- Judge may have one
If they have one -> must
- issue pre-trial order
- Only modified to
prevent manifest
injustice

51
Q

Temporary Restraining Order

A
  • Can be granted without notice to the other party
  • Trying to prevent immediate irreparable harm
  • Expires at time stated in order but cannot be longer than 14 days
  • If you wan’t them to be longer -> need to show GOOD CAUSE or get a preliminary injunction
  • MUST INCLUDE IN DETAIL THE ACTS RESTRAINED
52
Q

Preliminary Injunction

A
  • Need to give notice + hearing to restraining party
  • Irreparable injury will occur
    Likely to succeed on merits of case
  • Harm to moving party outweighs the other party
  • is longer than 14 days
53
Q

Jury Trials

A
  • Needs to be at least 6 but no more than 12
  • Parties can agree to less people
  • Verdict must be unanimous -> Unless parties agree otherwise
  • Demand must be made within 14 days of the last pleading
  • If there is a case with legal and equitable remedies
    - You try to legal issues
    first with the jury
    - Then the equitable
    claims with the
    court/judge
54
Q

Withdraw of Jury Trial

A

If all parties consent -> can withdraw

If there is no right to a JT or the parties waive -> the judge can decide the case:
- Will act as fact finder
- States findings and
conclusions
- Mini trial to dispose of
case

55
Q

Jury Selection - Dismiss Juror (2)

A

2 ways to dismiss a juror
(1) For Cause:
- There is a reason
- Any bias or connection
to the case -> must be
dismissed
NO LIMITS TO HOW MANY PPL CAN GET DISMISSED

(2) Preemptory Challenge (without cause)
- Can excuse for ANY reason
ex: “I don’t like the guy i
don’t want him on the
case”
- Each party has THREE challenges
- Cannot be excluded based on race and/or gender

Balanced Pool:
- Jury has to represent the overall community

56
Q

Jury Instructions

A
  • Judge will give instructions
    If party wants to object to instructions -> must do it before jury goes into deliberate or retirees -> if not they loose it on appeal
57
Q

Jury Deliberations

A

Allowed: papers, exhibits and notes
Not allowed: anything that was not in evidence

58
Q

Juror Rules

A
  • Not allowed to make experiments or private study of docs outside the jury room
  • Cannot talk to non-juror about the trial
    - If they do -> could
    cause for misconduct
    and possibly a new trial
  • Outside information coming into the jury could
    call for a new trial
    Prejudicial information
  • It doesn’t matter if an own juror had misconduct it only matters if its from an outside 3P
59
Q

Post Trial Bias

A

If a juror during jury selection failed to disclose a bias or a material question and the correct answer would have led to a challenge -> new trial could be ordered

60
Q

Motion: 12B

A

can be raised ANYTIME
- Lack of SMJ

Must be raised in answer or other 12b motion or it is waived!
- Lack of PJ
- Improper Venue
- Insufficient service of
process

61
Q

Failure to Join a party

A

May be raised before or at trial - doesn’t have to be raised in the 12b answer

62
Q

Motion to Dismiss for failure to state a claim

A

Even if every fact is true -> nothing happened/ no real recovery

  • Insufficient facts
  • May be raised before or at
    trial

Dismissal: with prejudice unless court says otherwise

63
Q

Motion to Strike

A
  • Before responding to a pleading
  • Within 21 days of service
  • For redundant, immaterial or scandalous material (don’t need it)
64
Q

Motion for More definitive statement

A
  • Vague or ambiguous
  • Clean up some of the ambiguity + be more specific in your pleading
65
Q

Summary Judgement

A
  • No general dispute of material fact and
    Moving party is entitled to judgment as a matter of law
    I.e., no reasonable person could find for non-moving party
  • Can make it until 30 days after discovery
  • If denied -> cannot be appealed
  • Moving party can use discovery, affidavit, depos and holds the burden to show
  • There can be a partial summary jdm
66
Q

Directed Verdict (JMOL)

A
  • D can make a motion after p’s case or either party after both sides rest
  • there is no legal significant basis for a jury to reach a diff conclusion
  • A reasonable jury would not have enough evidence to find for a party
67
Q

Renewed JMOL (RJMOL)

A
  • Have to have made a JMOL to have a RJMOL
  • Make a JMOL before the case goes to jury -> then case goes to jury
  • After case goes to jury and within 28 days of verdict -> make a RJMOL
  • If judge thinks a reasonable jury would not choose this -> can overturn the verdict
68
Q

Motion For Relief From Judgment

A

Error clerical, fraud, oversight, misconduct - can be relieved from it

1 year deadline

69
Q

What are potential errors upon which a party may base a motion for a new trial?

A

(1) Prejudicial error — serious error that makes judgment unfair
E.g., judge misstates law, gives wrong jury instructions

(2) Prejudicial misconduct — of a party, attorney, juror, etc.
E.g., jury considers evidence excluded at trial

(3) Judgment against weight of evidence — jury erred in reaching verdict given the evidence before it

(4) Newly discovered evidence

(5) Excessive or inadequate damages — court cannot increase jury award (violates 7th Amend.); judge can order a new trial or offer remittitur if convinced the award is too high

70
Q

Remittitur

A
  • New trial for excessive damages
  • Unless party agrees to reduction of award
  • If don’t agree to it -> order new trial
71
Q

Additur

A
  • Adding more money
    Not in federal court
72
Q

New Evidence is Discovered

A
  • Evidence was discovered after the end of the trial
  • Party was diligent when searching and could not find it
  • Evidence was material
73
Q

Default judgement:

A

Entered when one party fails to plead or defend
- Don’t show up or don’t
reply “give up”

74
Q

Voluntary Dismissal

A

P voluntarily dismisses the case if:
- Before D serves answer
or moves for summary
judgment
WITHOUT PREJUDICE
Ones after that -> need court approval

75
Q

Involuntary Dismissal

A

Dismissed by court order if:
- Failure to state a claim
- Failure to follow a court
order
- Failure to prosecute Usually with prejudice*

Except:
- Lack of PJ
- Venue
- Failure to join indispensable party

76
Q

Judicial Bias

A

Judgement for Cause:
- If you think the judge
may be committing bias or an “appearance of bias” even if the judge thinks they can be fair -> parties can make motion to get him out
- can also be waived by both parties

Specific Grounds:
Must be removed if:
- Judge has personal knowledge of facts
- Judge acted as a lawyer with a lawyer who is on the case (conflict of interest)
- Judge gave his opinion ab merits of case while acting as a judge
- judge or immediate family has a financial interest in the outcome of case
- Violation of due process of one of the parties

77
Q

Res Judicata = Claim Preclusion

A

(1) Same two parties litigating again
Or anyone in privity
(Employer v employee
Buyer v seller)

(2) same t/o

(3) There was a judgment on the merits
Does not apply to if case is dismissed for:
- Lack of jrd
- Improper venue
- Settlement

Even if law changes and now a loss means you can win -> still cannot bring the suit again

78
Q

Collateral Estoppel = Issue Preclusion

A

(1) Issue must be actually litigated & decided
does not apply if:
- settlement
- default judgment

(2) Issue must be necessary to the judgment

(3) typically three ppl involved (new P or new D)

79
Q

Collateral Estoppel = Issue Preclusion 3 EXAMPLES

A

(1) Isa sues robby - isa loses now nat wants to sue robby -> ok
NEW PERSON IS ALLOWED TO SUE B/C OF DUE PROCESS
Same D’s - Diff P’s

(2) Defensive use
(1) Isa V robby - isa loses
(2) Isa v Mik
Not allowed!! Mik can stop isa from suing
Same P -> Diff D

(3) Offensive use
Isa v Robby (ISA WINS)
Nat v Robby
Not allowed! Nat cannot use isa winning to her benefit

80
Q

Full Faith and Credit

A

One state must respect the other states judgments

81
Q

Notice of Appeal

A

Filed within 30 days of judgment

82
Q

Objections at Trial

A

Must make objections at trial b/c if you don’t they are waived
Putting court on notice to set up appeal later

83
Q

Appellate Court

A

Appellate Court: Reviews issues of laws

Trial court: reviews facts

84
Q

When can you appeal an error?

A

When the outcome would have been different
No appeal if was harmless error

85
Q

When can you appeal a case?

A

when there is a final judgment

Not considered a FJ:
- Interlocutory order
- Order given before trial judmt

86
Q

FJ v Not FJ

A

Not a FJ:
- Lack of JRD
- Improper Venue
- Failure to Join an
indispensable party
- Suit with multiple claims (one is decided) - unless “no reason for delay”
- Denial of summary
judgment
- New trial
- Partial final judgment

Considered a FJ:
- Injunctions
- Certification of class action

87
Q

Collateral Order

A

can be appealed
(1) order determined the disputed question
(2) resolves an issue that
is totally separate from
main issue
(3) delay would cause
irreparable damage

88
Q

Standards of Review

A

DeNovo
- Issues of law

Abuse of Discretion
- Court mistake,
relevance, admitting
something wrong

Clearly Erroneous
- Issue of facts

89
Q

Erie Doctrine

A
  • Choice of law
  • ONLY IN DIVERSITY CASES!!!!

Examples:

(1) Federal law v state law:
Apply substantive state
law; unless the issue is
procedural then you
apply federal law (FRCP
or other fed rules) for ex:
VENUE
- SOL IS STATE LAW

(2) State A v State B:
Apply the law of the state
where the court is sitting or
being heard

90
Q

14 Days (3)

A
  • TRO
  • Demand for Jury Trial
  • Impleader
91
Q

21 Days (5)

A
  • time to answer the complaint or 12b response
  • amend or supplementing a pleading
  • responding to a counterclaim
  • Rule 11 Safe Harbor
  • motion to strike
92
Q

28 Days (2)

A
  • file RJMOL
  • new trial
93
Q

30 Days (5)

A
  • notice of removal and remand
  • return request for waiver of SOP
  • appeals
  • request for admission
  • summary judgment motion
94
Q

60 Days (1)

A
  • answer complaint or 12b motion if D waived SOP
95
Q

90 Days (3)

A
  • serve process after filing complaint
  • relate back
  • scheduling conference
96
Q

1 Year (2)

A
  • remove in a diversity case
  • motion for relief from jdmt

MBE ISA (3 decks)

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