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MEE Rule > Civil Procedure > Flashcards

Civil Procedure Flashcards

1
Q

Diversity jurisdiction

A

No Plaintiff shares the state of citizenship of any defendant and the amount in controversy in the case exceeds $75,000

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2
Q

Can subject matter jurisdiction be waived

A

NO!!! SMJ is not waivable and may properly be raised at any time.

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3
Q

Discovery

A

Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action

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4
Q

Test for discovery

A

Whether the information sought is relevant to any party’s claim or defense.

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5
Q

Work Product

A

In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.

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6
Q

Exception to work product

A

Work product will be subject to discovery if the party shows that it has a substantial need for the materials to prepare its case and cannot, with undue hardship obtain their substantial equivalent by other means

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7
Q

Electronically stored information (ESI)

A

Emails are discoverable if they relate to the foundation and may be relevant to the litigation. failure to preserve ESI that should have been preserved and cannot be restored or replaced the court may sanction the wrongful party

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8
Q

The court may order sanctions when

A

1) upon finding prejudice to another party, order measures no greater than necessary to cure prejudice; or
2) upon finding that the party acted with the intent to deprive another party of the information, may presume the information was unfavorable, or dismiss the action or enter a default judgment

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9
Q

Mental Impressions of an attorney

A

can never be discovered; except when one party seeking discovery shows a need for the document or things; and that the information cannot be obtained otherwise

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10
Q

Oral Depositions

A

Questions are asked and answered orally and under oath. Limited to 10 depositions, unless the court allows more. Each is limited to one day of seven hours unless the court allows more.

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11
Q

Written Depositions

A

Questions asked in writing are delivered to an officer who asks the questions orally and the witness answers orally under oath. Rarely used because they are so inflexible

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12
Q

Interrogatories

A

Questions asked in writing to be answered under oath in writing that may only be used against a party. Presumptively limited to 25 interrogatories, unless the court allows more. Responses are required within 30 days.

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13
Q

Discovery & Inspection of Documents & Land

A

Called a request to produce and permit inspection. Applies only to documents, things, and land under the control of the party. The thing to be produced and inspected must be described with particularity. Response is due within 30 days

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14
Q

Physical & Mental Examinations

A

Available only against a party and are only permitted when the party’s physical or mental condition is in controversy. Only for good cause shown

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15
Q

Request for Admission

A

Used to streamline litigation, but a failure to respond within 30 days is an admission

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16
Q

Removal

A

Moves case from state court to federal court. Only proper if the case should have been brought originally in federal court and only be Defendant can remove.
If multiple Defednats all must consent

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17
Q

Transfer

A

Moves case from one Federal court to another federal court

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18
Q

Federal question

A

look to the well pleaded complaint rule federal question jurisdiction based on whether the federal question appears on the face of the well-pleaded complaint without making conclusory statements

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19
Q

DIversity Removal

A

is proper only if the AIC & complete diversity requirements are met and the action is brought is a state in which no defendant is a citizen

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20
Q

Supplemental Jurisdiction

A

Allows a federal court with subject matter jurisdiction over a case to hear additional claims over which the court would not independently have jurisdiction if all of the claims constitute the same case or controversy

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21
Q

A counterclaim under supplemental jurisdiction

A

does not have to meet the $75,000 requirement if the counterclaim is compulsory (i.e. arises out of the same transaction or occurrence

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22
Q

Cross claim

A

need an independent basis and must be related to a claim over which the court has subject matter jurisdiction (i.e., “anchoring” claim)

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23
Q

Pretrial Conference

A

Must be attended by attorneys who will conduct the trial. Each side must file a pretrial statement detailing claims and defenses, itemization of damages, requests for stipulations and admissions, and list of all witnesses and exhibits

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24
Q

Two question you need to ask for Personal Jurisdiction

A

Is the court authorized to exercise PJ over out-of-state defendants?; and
Is the exercising of PJ permitted by the due process clause of the US constitution.

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25
Q

Can Personal Jurisdiction be waived

A

Can be waived but only if raised at the first opportunity or it’s waived.

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26
Q

General Personal Jurisdiction

A

Plaintiff can assert any claim whatsoever, even if unrelated to the defendant’s contacts with the forum state.

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27
Q

Specific Personal Juridiciton

A

Plaintiff’s claims against the defendant must arise out of—or directly relate to—the defendant’s contacts with the forum

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28
Q

In Rem Jurisdiction

A

suit against any kind of property, real or personal (the res) so long as the property is located in the state where you are suing, and it can settle everyone in the world’s claim against that property

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29
Q

Quasi In Rem

A

suit to adjudicate the claim to the property of a particular defendant or defendant; the subject matter of the suit may or may not be related to the property. Subject to the same minimum contacts as in personal jurisdiction.

30
Q

Claim preclusion

A

The doctrine of claim preclusion provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in subsequent action

31
Q

How claim preclusion applies

A

The claimant and the defendant must be the same in both the original action and the subsequently filed action;
Claim preclusion is limited to the parties (or successor in interest) similar action by a different party would not be precluded

32
Q

Issue preclusion (collateral estoppel)

A

precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded must have been a party to the original action

33
Q

Elements of issue preclusion

A

1) the issue sought to be precluded must be the same as that involved in the prior action.
2) the issue must have been actually litigated in the prior action
3) the issue must have been determined by a valid and binding final judgment; and
4) the determination of the issue must have been essential to the prior judgment

34
Q

Venue & Forum Selection

A

For the convenience of the parties and in the interests of justice a district court may transfer any civil action to any other district or division where it might have been brought

35
Q

Venue

A

Venue is proper in a judicial district in which any defendant resides;
Where 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 loacted

36
Q

Valid forum selection clause

A

The transferee court must apply the law including the choice of law rules of the state in which it is located

37
Q

Transfer of venue

A

If a case is transferred when the original venue is proper the court where the case was transferred must apply the law of the state of the transferor court

38
Q

Choice of law & Erie

A

If there is no federal statute or law on point the court must determine whether to follow state law or federal law;
General rule state law for substantive issues (burden of proof statutes of limitations) and federal law for procedural issues

39
Q

Intervention

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 interest; and
3) the nonparty’s interest is not adequately represented by existing parties.
burden is on the party seeking intervention

40
Q

Temporary Restraining Order (TRO)

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. last no longer than 14 days.

41
Q

TRO can be issued without notice to adverse party if the moving party can show

A

1) that immediate and irreparable injury will result prior to hearing the adverse party’s argument; and
the efforts made at giving notice and the reason why notice should not be required.

42
Q

preliminary injunction

A

can be issued if the opponent is given notice and the court holds a hearing on the issue

43
Q

Party seeking preliminary injunction must establish that

A

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

44
Q

Answer

A

Generally, the Defendant’s answer must state any avoidance or affirmative defense that the defendant has, or that is deemed waived

45
Q

Amending an Answer

A

pleadings can and should be amended by leave of the court when justice requires it. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party.

46
Q

Pre-Answer motion

A

the motion must raise the defense of insufficient service of process in the pre-answer motion, or the defense is waived.

47
Q

Motion for a judgemnt

A

is applied when the pleadings agree entirely on facts and only the law is in dispute

48
Q

The complaint must include

A

short and plain statement of the courts subject matter jurisdiction; a short and plain statement showing the claimant is entitled to relief; and a claim for the remedy sought by the pleader

49
Q

Amending a pleading

A

A pleading may be amended once as of right within 21 days of service of the pleading or within 21 days of the defendant’s response, if there is one. After that, leave to amend must be sought from the ct.

50
Q

Summary Judgment

A

there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. court must construe all evidecen in the light most favorable to the non-moving party.

51
Q

Service of Process

A

FRCP allow service by delivering summons and complaints to the individual personally or by “leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there,” delivery to an authorized agent is also acceptable

52
Q

Permissive Joinder

A

Any number of plaintiffs and defendants may join if they assert claims arising out of the same transaction or occurrences or series of transactions or occurrence and there was a common question if law and facts

53
Q

Compulsory Joinder

A

applies to necessary and indispensable parties. A necessary party is a person whose participation in the lawsuit is necessary for adjust adjudication because absent that party, complete relief cannot be accorded to the existing parties; and the necessary party has an interest in the litigation which will be impeded if the litigation goes forward without that party (risk of prejudice to the absentee); or there is a substantial risk of double or inconsistent liability.

54
Q

Necessary Joinder must be joined if feasible

A

Feasible if it will not deprive the court of SMJ (e.g. will not destroy complete diversity) and The court can assert personal jurisdiction over the necessary party.

55
Q

Intervention as a right

A

may be had when the outsider claims an interest in the subject matter of the lawsuit that, as a practical matter, may be compromised by the disposition of the pending action.

56
Q

Permissive intervention

A

may be allowed whenever there is a common question of law or fact between the intervenors claim and the main claim (very relaxed standard). Must ask the courts permission—matter of the courts sound discretion

57
Q

interpleader

A

is generally used to resolve the problem of competing claims to the same property. It is designed to avoid inconsistent obligations are multiple claims.

58
Q

Rule interpleader

A

there must be an independent basis of federal jurisdiction such as diversity or a federal question jurisdiction. If the action is based upon diversity jurisdiction, the amount or the value of the assets in question must exceed $75,000

59
Q

Statutory Interpleader

A

The statute allows federal courts to hear cases with (i) minimal diversity among the competing claimants; (ii) where the property in dispute is worth at least $500 (there are other provisions which we won’t discuss in this post). Minimal diversity means that at least two competing claimants are citizens of different states. The stakeholder’s citizenship does not matter.

60
Q

Impleader

A

is a device by which the defendant brings into the suit someone who is or may be liable to the defendant for all or part of the plaintiff’s claims against him. It comes with the court’s supplemental jurisdiction, but plaintiff cannot make a claim against the 3rd party unless diversity is met

61
Q

Class action

A

The class actions are numerous;
Named representative must be diverse from at least one defendant and one plaintiff needs a claim of more than $75,000

62
Q

Class Action Fairness Act

A

Allows very large class actions, involving at least 100 members with more than 5 million at stake. Only minimal diversity required (i.e. any plaintiff diverse from any defendant)

63
Q

Voluntary Dismissal

A

Plaintiff a right to voluntary dismissal once at any time prior to the defendant serving an answer or motion for summary judgment. Is ordinarily without prejudice

64
Q

Involuntary dismissal

A

is typically with prejudice. Involuntary dismissal for lack of jurisdiction, improper venue, or failure to join an indispensable party is without prejudice. In all other cases, involuntary dismissal is with prejudice.

65
Q

Dismissal with Prejudice

A

is an adjudication on the merits, which means that, under federal law, given full res judicata (preclusive) effect, which bars any attempt at re-litigation of same claims. May be imposed for plaintiff’s failure to prosecute or for failure to comply with FRCP or any court order.

66
Q

Judgment as a matter of law

A

Standard: viewing the evidence in the light most favorable to the other party, the evidence cannot support a verdict for that party, and the moving party is therefore entitled to judgment as a matter of law.

67
Q

Renewed motion for judgment as a matter of law

A

is made at the close of all of the evidence and denied by the court may be renewed after the jury returns a verdict.

68
Q

motion for a new trial

A

A new trial can be granted for legal errors, newly discovered evidence, prejudicial misconduct by a lawyer, party, or a juror, or the judge concludes that the verdict is against the great weight of the evidence, either in substance of the verdict or amount of damages awarded.

69
Q

Final Judgment Rule

A

states that Ordinarily, appeals are available only from a final judgment and Judgment becomes final when entered by clerk on the court docket

70
Q

Interlocutory Orders

A

are immediately appealable as of right, including any order granting or modifying an injunction and any order that changes or affects possession of property

71
Q

Collateral orders

A

are also immediately appealable. The collateral order doctrine allows immediate appeal if the order conclusively determines the disputed question; resolves an important issue completely separate from the merits of the action; and is effectively unreviewable upon appeal

MEE Rule (16 decks)

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