Civil Procedure Flashcards
Can a cross claim be compulsory?
Never, meaning that a party can bring claim in another another action.
Who should a party file a default judgment with if the other party has responded to a pleading earlier?
The party must file the default judgment with the judge and the judge may enter the judgment after the other party has received additional notice.
Default Judgment - Defendant has made an appearance.
A defendant against who a default is entered, loses the right to contest liability unless the entry of default is set aside.
The amount of damages must still be determined before the judgment may be entered.
The defaulting party can be heard at the hearing for damages.
Defendant is entitled to notice seven days before hearing.
As long as the defendant has appeared in the case in some fashion, they are entitled to a default judgment hearing.
If no appearance, no notice needed.
When should Summary Judgment be granted?
Should be granted when there is no genuine dispute of material fact.
Appropriate at any time until after 30 days after the close of discovery.
When can you bring a third-party claim?
When a party is seeking to obtain recovery for the defendant’s own liability for the claim.
If a person denies liability altogether, he can assert a third-party claim.
With supplemental jurisdiction, must there by complete diversity?
Yes, SJ can not be used to override diversity jurisdiction.
Can punitive damages be considered in the amount in controversy?
Yes, even if plaintiff doesn’t get awarded punitive damages.
?
Claims may only be aggregated if allowed by applicable law.
Can the Plaintiff’s home state be a proper basis for venue?
A plaintiff’s home state can never be a proper basis for venue. Venue is only proper where the defendant’s reside IF all the defendants reside in the same state or where the a substantial part of the claim arose.
Is a third-party defendant’s claim against the plaintiff a compulsory claim or a permissive claim?
A third-party defendant’s claim against the plaintiff is not compulsory, it’s permissive.
They can bring their own independent answer.
When are preemptory challenges are allowed?
When they aren’t based on:
- race
- national origin
- religion
- gender.
If you don’t make a timely jury instruction, _____________.
You waive your right to appeal.
When can a Motion for New Trial be granted?
When there is an error in the trial, such as:
- jury misconduct
- excessive or inadequate verdict.
- verdict goes against the evidence presented.
Remittitur, explain.
When a jury gives an excessive damages that shocks the conscience.
The judge can order a new trial or offer remittitur, which is giving the choice between a lesser award or a new trial.
Remittitur is in fact allowed in federal courts.
