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Bar Exam > Civil Procedure > Flashcards

Civil Procedure Flashcards

1
Q

For federal question jurisdiction, the federal issue must be presented in…

A

the plaintiff’s well-pleaded complaint

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2
Q

For diversity jurisdiction, there must be ______ diversity between the parties

A

complete

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3
Q

For diversity jurisdiction, domicile or the corporation is…

A

place where incorporated and where the principal place of business is located

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4
Q

Individuals are domiciled where

A

they are present with intent to remain indefinitely

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5
Q

To establish diversity jurisdiction

A

Must be complete diversity between the parties and the amount in controversy must exceed $75,000

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6
Q

When can you aggregate dollar amounts?

A

If multiple defendants are jointly liable

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7
Q

Courts may exercise supplemental jurisdiction over additional claims so long as the claims….

A

arise out of a common nucleus of operative fact as the original claim

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8
Q

Under federal question jurisdiction, what are three ways the court can assert supplemental jurisdiction over additional claims

A
  1. P can bring state law claims that are related to the federal claim
  2. An additional P can bring a state law claim against D if related to the original P’s federal claim
  3. A D can bring a cross-claim against another D so long as the claim is related to the original P’s federal claim
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9
Q

Under federal diversity jurisdiction, what are three ways the court can assert supplemental jurisdiction over additional claims

A
  1. P can bring any state law claim related to the basis of the original claim
  2. An additional P can bring a related state law claim against the D so long as P does not destroy diversity
  3. D can bring a cross-claim against another D so long as it is related to the original claim
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10
Q

Courts have discretion to reject supplemental jurisdiction if: (3)

A
  1. The claims are complex or predominate the lawsuit
  2. The federal law claims are dismisses
  3. There are any other compelling reasons to decline jurisdiction
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11
Q

D may remove a case from state court to federal court if (4)

A
  1. Federal court has SMJ over the case
  2. For diversity jurisdiction, no Ds can be citizens of the state in which the claim was originally filed
  3. Motion for removal must be filed within 30 days of receiving the complaint
  4. All Ds must join in or consent to removal
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12
Q

Due Process requires

A

Minimum contacts and fairness (fair play and substantial justice)

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13
Q

Minimum Contacts requires (2)

A

Purposeful availment (reasonably foreseeable to be sued in the state) and relatedness (D’s conduct in relation to the action)

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14
Q

Specific jurisdiction

A

Action arises out of D’s conduct

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15
Q

General jurisdiction

A

D is essentially at home in jurisdiction

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16
Q

Considerations of fair play and substantial justice

A
  1. Interest of the forum state in adjudicating the matter
  2. Burden on the defendant of appearing in the case
  3. Interest of the judicial system in efficient resolution
  4. Shared interests of the states in promoting common social policies
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17
Q

Appropriate venue: Which federal district can the original action be filed in? (3)

A
  1. A district in which any defendant resides if all defendants reside in the state where the district is located
  2. Where a substantial part of the events or omissions occurred, or where the property is situated; or
  3. If neither of the above apply, venue is proper in judicial district where any D is subject to PJ
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18
Q

4 questions for transfer of venue analysis

A
  1. Is there PJ?
  2. Is there SMJ?
  3. Is venue appropriate in the new district?
  4. Is transfer to the new venue in the interest of justice?
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19
Q

Under federal question jurisdiction, _____ substantive law and _______ procedural law will control

A

federal

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20
Q

Under diversity jurisdiction, _______ substantive law and ________ procedural law will control

A

state; federal

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21
Q

3 types of state laws that are substantive under Erie

A
  1. Law that alters the calculation of damages
  2. Law regarding statute of limitations
  3. Laws that create evidentiary privileges
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22
Q

To obtain a temporary restringing order, a party must show (2)

A
  1. Immediate and irreparable injury would occur absent the TRO
  2. An effort was made to give notice to the opposing side (or the reason notice should not be required)
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23
Q

Court may grant TRO with/without opposing party present

A

without

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24
Q

Preliminary injunction requires notice…

A

to the opposing party and a hearing

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25
Q

To obtain a preliminary injunction, P must show (4)

A
  1. Likely to succeed on the merits
  2. Likely to suffer irreparable harm in absence of injunction
  3. Balancing the equities favors granting; and
  4. Injunction is in the best interests of the public
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26
Q

For corporations, service of process may be made on (4)

A

officer, managing agent, general agent, or agent appointed or authorized by law

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27
Q

Rule 12b motion to dismiss

A

Lack of SMJ, lack of PJ, improper venue

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28
Q

Lack of PJ, improper venue, and insufficient process must be raised….

A

at the first opportunity (the pre-answer motion or, if none, the answer

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29
Q

When may failure to state a claim or failure to join a necessary party under Rule 19 be raised (3)?

A

In any pleading, in a motion for judgment on the pleadings, or at trial

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30
Q

P may amend its pleading once as a matter of right within ____ days after service on D

A

21

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31
Q

If it has already been 21 days after service and P wants to amend pleading, they may do so if…

A

Seek leave of court of written consent from opponent

32
Q

Adding a new claim is permitted if (2)

A
  1. Original complaint was timely
  2. New claim arises out of the same transaction or occurrence as the original claims
33
Q

Adding a new D is permitted if (3):

A
  1. The claim arose out of the same conduct, transaction, or occurrence
  2. The new D received notice of the action within 90 days of the original complaint; and
  3. The new D knew or should have known that but-for a mistake, he would have been part of the original complaint
34
Q

Attorney may be subject to sanctions for violation of this rule

A

When an attorney submits a signed document, he certifies that the documents are filed in good faith

35
Q

Requirements for compulsory joinder of parties (3)

A
  1. Party must be necessary
  2. Must be PJ over the new party
  3. Must be SMJ (adding the new party cannot destroy diversity) (If adding the new party would destroy diversity, the court must decide whether the party is indispensable (dismiss the case) or not (proceed without party))
36
Q

Necessary party if (3)

A
  1. court cannot affair complete relief without the party
  2. there is a danger that the party would be harmed without joining, or
  3. there is a risk of an inconsistent judgment or double liability
37
Q

Factors to determine whether the new party is indispensable (4)

A
  1. Extent to which the judgment would prejudice the parties in the person’s absence
  2. Extent to which prejudice could be reduced or avoided by protective provisions
  3. Whether a judgment rendered would be adequate
  4. Whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder
38
Q

Can bring a cross-claim so long as it… (2)

A
  1. arises out of the same transaction or occurrence as P’s original claim
  2. SMJ over cross claim (FQ, DJ, Supp)
39
Q

Example of impleader

A

D tries to pull in 3rd party into lawsuit

40
Q

Requirements for impleader (2)

A
  1. Impleaded claims must relate to the original claim between P and D
  2. Must have SMJ over the impleaded claim
41
Q

Example of intervention

A

Nonparty is seeking to join a lawsuit

42
Q

Intervention as of right if (3)

A
  1. Nonparty has an interest in the subject matter of the action;
  2. Action may affect their interest; and
  3. Nonparty’s interest is not adequately represented by the existing parties
43
Q

Permissive intervention allowed if (2)

A
  1. Nonparty is granted a conditional right under federal statute; or
  2. Nonparty has a claim or defense related to the original cause of action
44
Q

Does evidence need to be admissible in order to be subject to discovery?

A

No

45
Q

A party may not discover _____ info

A

privileged

46
Q

Parties may discover any…

A

non privileged matter that is relevant to a claim or defense

47
Q

Work Product Privilege

A

Protects materials prepared by a party in anticipation of litigation

48
Q

2 exceptions to work product privilege

A
  1. Info not reasonably available by other means
  2. The party would be substantially prejudiced if not allowed to access the materials
49
Q

For experts not called as witnesses, reports are only available in…

A

exceptional circumstances

50
Q

Can compel a physical or mental exam of a party if…

A

that party’s mental or physical condition is at issue

51
Q

A party can depose..

A

another party or nonparty

52
Q

Under the duty to preserve electronically stored information in anticipation of litigation, the court may presume that lost information was

A

unfavorable to the party that failed to preserve it

53
Q

Summary judgment motion

A

Asserts that there is no genuine dispute as to any material fact and the party is entitled to judgment as a matter of law

54
Q

7th Amendment

A

Right to jury trial when damages exceed $20

55
Q

Must demand jury trial within ____ days of last pleading

A

14

56
Q

Judgment as a matter of law granted if…

A

no reasonable person could differ as to outcome

57
Q

Renewed motion for judgment as a matter of law asks the court to

A

override the jury’s verdict

58
Q

Interlocutory appeal allowed after the denial or grant of

A

An injunction

59
Q

3 requirements for claim preclusion (res judicator)

A
  1. Same P and same D from lawsuit #1
  2. Lawsuit #1 ended in a valid final judgment on the merits
  3. Claimant is asserting the same claim as lawsuit #1
60
Q

4 requirements for Issue preclusion (collateral estoppel)

A
  1. Same issue was actually litigated
  2. Final judgment on the merits
  3. Issue was essential to the judgment
  4. The party against whom issue preclusion is asserted must have been a party in the prior lawsuit or represented in that lawsuit (as a successor-in-interest)–must be fair for new plaintiff to assert same issue (prior law required mutuality of parties)
61
Q

For diversity jurisdiction, how is citizenship determined for an unincorporated association

A

deemed to be a domiciliary of the state of every partner/member/owner

62
Q

For diversity jurisdiction, how is citizenship determined for an executor/personal representative

A

citizenship is that of the decedent or person being represented

63
Q

For diversity jurisdiction, how may the amount in controversy requirement be met when seeking injunctive relief

A

the amount of the benefit to P or the cost of compliance to D

64
Q

The amount in controversy for diversity purposes is based on the damages alleged in good faith in the complaint UNLESS

A

it’s legally certain that the P cannot recover the specified amount

65
Q

Diversity Jurisdiction of a large class action exists when (3)

A
  1. amount in controversy exceeds 5 million $
  2. at least 100 class members
  3. minimal diversity is present-if any member of the plaintiff class is a citizen of a state different from any defendant
66
Q

Court MAY decline to exercise jurisdiction when non-diverse members of a class action are greater than _____ AND less than ____ of the total class

A

1/3; 2/3

67
Q

Court MUST decline to exercise jurisdiction when non-diverse class members are greater than _____ of the class

A

2/3

68
Q

Class action jurisdiction does not apply (3)

A
  1. if the primary D’s are states, state officials, or other government entities that the court is foreclosed from ordering relief;
  2. if less than 100 class members OR
  3. in class actions involving securities or corporate fiduciary claims
69
Q

A court MAY decline to exercise supplemental jurisdiction when:

A
  1. a claim raises a novel or complex issue of state law
  2. a claim substantially predominates over the other claims which the court has SMJ
  3. the court dismissed all claims that had federal SMJ OR
  4. in exceptional circumstances
70
Q

Domestic relations exception

A

federal courts MUST decline jurisdiction if a case primarily involves domestic relations matters (divorce, alimony, child custody/support issues)

71
Q

But a court should not decline jurisdiction when a domestic relations matter is ______ to the case

A

ancillary

72
Q

D MAY remove a case to federal court (in the district where the state court case was originally filed) if: (4)

A
  1. the federal court has SMJ
  2. all Ds agree
  3. no D is a resident of the forum state (if removal is based o n diversity jurisdiction) AND
  4. removal is sought within 30 days of service of summons or receiving the initial pleading (whichever is shorter)
73
Q

Pleading requirements for a complaint alleging mistake or fraud or mental conditions

A
  1. may allege generally the D’s malice, intent, knowledge but must state with particularity the circumstances giving rise to the claim, eg specifying the time, place and nature of the alleged fraud
74
Q

A ruling on a motion for remittitur is typically discretionary and reviewed by an appellate court for abuse of discretion. But when that ruling is challenged on constitutional ground–eg due process–it presents an issue for law that is reviewed de novo. A review of the constitutionality of punitive damages award requires an examination of 3 factors

A
  1. degree of reprehensibility of D’s misconduct
  2. size of the award in comparison to the statutory penalties fro comparable misconduct
  3. ratio of punitive damages to compensatory damages (cannot exceed 9 to 1)`
75
Q

A losing party has _____ days within entry of final judgment to file a motion for remittitur

A

28

Bar Exam (10 decks)

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