Civil Procedure Flashcards Preview

MEE Practice Exam Rules > Civil Procedure > Flashcards

Flashcards in Civil Procedure Deck (42)
Loading flashcards...
1
Q

Under Rule 11(a):

A

every pleading, written motion, and other paper filed with the court must be SIGNED by at least one attorney of record, or by a party personally if unrepresented

2
Q

Under Rule 11(b):

A

By presenting to the court a pleading, written motion, or other paper, the signing attorney or unrepresented party CERTIFIES that to the best of her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances (i) the paper is NOT being presented for any IMPROPRER purpose, (ii) the claims, defenses, and other legal contentions are warranted by existing law or by NONFRIVOLOUS argument for extending, modifying, or reversing existing law or for establishing new law, (iii) 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, and (iv) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief of a lack of information

3
Q

A motion for sanctions must be made:

A

(i) separately from any other motion,
(ii) must describe the specific conduct alleged to violate Rule 11, and
(iii) must be served on the opposing party

The opposing party must then be given 21 days to withdraw or or correct the challenged pleading

4
Q

Sanctions for Rule 11 violations are limited to:

A

What will deter the misconduct in the future

5
Q

Sanctions may include:

A

nonmonetary directives or an order to pay a penalty into court

6
Q

If sanctions are imposed:

A

An order directing payment to the movant for reasonable attorney’s fees and other expenses directly resulting from the violation may be appropriate

7
Q

A law firm must be held jointly responsible for a violation committed by:

A

its partner, associate, or employee

8
Q

The court is not permitted to impose a monetary sanction against a represented party for:

A

violating the requirement that the legal contentions of the paper be warranted by existing law or by nonfrivolous argument

9
Q

Discovery is generally permitted with regard to:

A

any non-privileged matter relevant to any party’s claim or defense; information within the scope of discovery need not be admissible

*the test is whether the information sought is relevant to any party’s claim or defense

10
Q

A party may not discover documents or tangible things prepared in anticipation of litigation unless:

A

the requesting party shows that it has SUBSTANTIAL NEED for the materials to prepare its case and cannot, without UNDUE HARDSHIP, obtain their substantial equivalent by other means

11
Q

A party may be subject to sanctions for failing to take reasonable steps to preserve ESI:

A

that should have been preserved in the anticipation of litigation

12
Q

Sanctions for failure to preserve ESI that should have been preserved:

A

The court may (1) upon finding prejudice to another party, order measures no greater than necessary to cure the prejudice, or (2) upon a finding that the party acted with the intent to deprive, may presume the lost information was unfavorable to the party, instruct the jury that it may or must presume the evidence was unfavorable, or dismiss the action and enter default judgment

13
Q

Generally, defendant in any civil action filed in state court has the right to remove it to district court for the district in which the state court action was filed:

A

as long as the civil action is within the original jurisdiction of a U.S. district court (diversity or federal question)

14
Q

Venue is proper where:

A

In any district in which any defendant resides OR in a district in which a substantial part of the events or omissions took place

15
Q

Transfer sought on the basis of a forum selection clause in a K:

A

is accorded respect

16
Q

Contract clause specifying a federal forum is:

A

prima facie valid, only to be set aside upon a strong showing that the:

(1) transfer would be unreasonable and unjust, or
(2) clause was invalid for reasons such as fraud or overreaching

17
Q

If the venue is transferred when original venue is proper:

A

the court in which the action is transferred must apply the law of the state of the transferor court, including the state’s conflict of laws rules

18
Q

When venue is transferred based on a valid forum selection clause:

A

the transferee court must apply law of the forum state, including its choice of law rules

19
Q

Doctrine of claim preclusion (res judicata) provides that:

A

a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action

(1) same parties or their privies

20
Q

Doctrine of issue preclusion (collateral estoppel) precludes:

A

the re-litigation of issues of fact or law that have already been necessarily determined by a judge or jury as a part of an earlier claim

*Applies when the party against whom the issue is to be precluded was a party to the OG action

21
Q

A U.S. District Court has diversity jurisdiction over a matter if:

A

no plaintiff shares the state of citizenship of any defendant and the amount in controversy exceeds 75K

22
Q

The defense of subject matter jurisdiction:

A

Is not waivable

23
Q

Pursuant to CAFA, when a class action claims AIC in excess of $5 million,

A

only MINIMAL DIVERSITY is required (diversity will be met if any member of the plaintiff class is diverse with any defendant)

24
Q

In general, what satisfies the amount in controversy requirement?

A

Plaintiff’s good faith assertion in the complaint that the action satisfies the amount in controversy requirement

25
Q

Class actions can be maintained in federal court despite:

A

a state law barring class actions to enforce statutory damage claims, IF the action meets the four rule 23 requirements (numerosity, commonality, typicality, and adequacy)

26
Q

Standing requirements:

A

(i) injury in fact (concrete and actual or imminent;
(ii) the injury was fairly traceable to the challenged action (causation); and
(iii) the relief request must prevent or redress the injury

27
Q

Under the Erie Doctrine, a federal court sitting in diversity will:

A

Apply state substantive law and federal procedural law

Choice of law rules are substantive, thus the choice of law rules of the forum apply

28
Q

Failure to raise certain Rule 12 motions:

A

whether in an answer, or pre answer motion, constitutes waiver of those defenses

  • Included among waivable defenses are improper venue, insufficient process, insuficient service of process, and lack of PJ
29
Q

Defendants have a right to amend their pleadings:

A

Within 21 days of their answer, and in doing so, they may include a waivable defense

*Cannot do so, however, if D’s first response is a Rule 12 motion that fails to include the defense

30
Q

Service of Process when jurisdiction has identical procedural rules to the FRCP

A

(1) D may be served personally,
(2) by rules permitted by the state in which the court sits or where process is served,
(3) by serving the defendant’s agent, or
(4) by leaving service at D’s abode with a person of suitable age and discretion who lives there

31
Q

Intervention as a Right

A

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

32
Q

A TRO does what?

A

Preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction.

Immediately effective and lasts no longer than 14 days, unless good cause exists

33
Q

A TRO can be issued without notice to an adverse party if:

A

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

34
Q

A party seeking a preliminary injunction must establish that:

A

(i) the party is likely to succeed on the merits;
(2) the party is likely to suffer irreparable harm in absence of relief;
(3) the balance of equities is in his favor; and
(4) the injunction is in the best interest of the public

35
Q

Subject matter is a court’s competence:

A

to hear and determine cases of the general class and subject to which the proceedings in question belong

36
Q

Diversity jurisdiction

A

The amount in controversy must exceed $75,000 and each plaintiff must be a citizen of a different state than each defendant

37
Q

Citizenship of a state

A

Must be a citizen of the United States and a domiciliary of the state

38
Q

Domicile

A

State in which one is present and intends to reside for an indefinite period.

Corporation: state of incorporation and principal place of business (HQ)

39
Q

Personal Jurisdiction

A

A court’s ability to exercise judicial power over the persons and property involved in the cases or controversies before it.

A federal court will generally look to the forum state jurisdictional statutes

40
Q

The Due Process Clause permits a court to exercise PJ over a D if:

A

The defendant has minimum contacts with the forum state such that the maintenance of the action does not offend traditional notices of fair play and substantial justice

Contacts must be purposeful and substantial, such that D should reasonably foresee being taken to court there.

41
Q

Specific Personal Jurisdiction

A

For specific personal jurisdiction to exist, there must be an affiliation between the forum and the underlying controversy, activity or an occurrence that takes place in the forum state and is therefore subject to the state’s regulation

42
Q

General Personal Jurisdiction

A

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