Civil Procedure Flashcards
(118 cards)
1
Q
What 2 types of jurisdictions do federal courts need to hear a case?
A
subject matter jurisdiction and personal jurisdiction
2
Q
What are the two required sub-categories of subject matter jurisdiction?
A
Diversity jurisdiction and federal question jurisdiction
3
Q
What are the two requirements of diversity jurisdiction
A
1) complete diversity between parties AT THE TIME THE SUIT IS FILED (plaintiff doesn’t share state with defendant)
2) Amount in controversy must be over $75k
4
Q
What is the requirement for federal question jurisdiction?
A
A well-pleaded complaint (complaint must assert a federal question at the beginning of the case)
5
Q
What are the 4 requirements for a class action lawsuit?
A
1) The class must be so numerous that joinder of all members is impracticable (numerosity)
2) There must be questions of law or fact that are common to the class (commonality)
3) The claims or defenses of the representatives must be typical of the class (typicality)
4) The representatives must fairly and adequately protect the interests of the class (adequacy)
6
Q
What are the elements of claim preclusion (res judicata)?
A
1) parties are the same as the parties in the past action
2) the court had jurisdiciton to render its verdict
3) the past verdict was final and binding
4) the past claim and current claim arise out of the same transaction or occurrence
7
Q
What are the elements of issue preclusion (collateral estoppel)?
A
1) Past court issued a valid and final judgment
2) the past and current issue are the same
3) the issue was necessary to the prior case and the court entered a verdict on it
4) the party had ample opportunity to raise the issue in the past case
8
Q
When is complete diversity not required?
A
In certain class action suits where there’s more than 100 plaintiffs and the amount in controversy is over $5 million
9
Q
What is removal?
A
When a case is moved from state court into federal court (moving from federal court to another federal court is called transfer)
10
Q
When is removal proper?
A
When the case could’ve been brought in federal court in the first place, i.e., there’s diversity or federal question jurisdiction for the federal court.
11
Q
What is aggregation?
A
When a plaintiff combines multiple cases they have into one case
12
Q
When is aggregation appropriate for diversity jurisdiction?
A
A plaintiff can aggregate claims to meet the $75k threshold if they’re all against the same defendant, even if the claims are unrelated.
Multiple plaintiffs cannot aggregate their claims against a single defendant unless it’s a class action.
13
Q
Who can remove a case to federal court?
A
Only defendants
14
Q
What can a plaintiff do if they don’t like the case being removed to federal court?
A
They can file for a remand, in which case, the federal court would then decide if they have personal and subject matter jurisdiction to hear the case.
Removal is automatic upon the defendant’s filing for it. It’s up to the plaintiff to argue a remand if they want the case back in state court.
15
Q
What is supplemental jurisdiction?
A
When a federal court agrees to hear state law cases relate to some federal law cases, so long as those state law cases arise from the nucleus of operative facts as the federal cases.
The state cases are basically tethered onto the federal law cases, and all are raised up to the federal court.
16
Q
What are the types of personal jurisdiction?
A
in personam (over a person), in rem (over a property), quasi in rem (over a property but used to have jurisdiction over a person)
17
Q
When is in personam jurisdiction met?
A
When there are sufficient minimum contacts between the non-resident defendant and the forum state
18
Q
Normally, when is venue proper?
A
1) When the judicial district is where one or all of the defendant(s) reside, so long as the defendants all reside in the same state; or
2) when the judicial district is where a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” is located
19
Q
What is the Erie Doctrine?
A
In a diversity case, if there’s no federal law on the issue, the federal court should use substantive state law
20
Q
How does supplemental jurisdiction relate to diversity jurisdiction?
A
Diversity jurisdiction cannot be violated by supplemental jurisdiction. There still must be complete diversity between the parties.
21
Q
What’s the difference between a compulsory and a permissive counterclaim?
A
A compulsory counterclaim is one that arises out of the same transaction or occurrence as the opposing party’s claim.
A permissive counterclaim doesn’t arise out of the same transaction or occurrence
22
Q
What is a counterclaim?
A
When a defendant sues the plaintiff in retaliation for the plaintiff’s complaint
23
Q
What’s a cross-claim?
A
When parties on the same side of a case sue one another (defendant sues co-defendant, plaintiff sues co-plaintiff)
24
Q
What’s the difference between a compulsory counterclaim by a defendant and one by a plaintiff?
A
A defendant’s compulsory counterclaim doesn’t need to meet the amount in controversy requirement of diversity, and can therefore be tacked onto the original complaint via supplemental jurisdiction.
A plaintiff’s compulsory counterclaim must still meet the diversity requirements
25
Can a cross claim qualify for supplemental jurisdiction?
Yes, if it arose out of the same transaction of occurrence as the original complaint.
26
How does supplemental jurisdiction relate to federal question jurisdiction?
Cases can be supplemented across the board, so long as the additional claims are related to the original federal question case
27
What are the two central questions when considering whether a court has personal jurisdiction over someone?
1) Has the basis for exercising PJ over an out-of-state defendant been authorized by statute or rule? (is there a long-arm statute giving the court a basis for PJ)
2) Is the particular basis for exercising PJ here permitted by the Constitution's Due Process Clause?
28
Can jurisdiction be waived by a party?
Subject matter jurisdiction cannot be waived. Personal jurisdiction can.
29
If a defendant doesn't believe the court has personal jurisdiction over them, how should they respond?
Lack of personal jurisdiction must be raised at the first opportunity, otherwise it's implicitly waived.
30
What is the difference between general and specific in personam jurisdiction?
general in personam jurisdiction is when the defendant has continuous and systematic contacts with the forum state that are so substantial that the defendant is essentially "at home" (i.e., where a defendant is domiciled)
Specific in personam is when the plaintiff's claim arises from the defendant's minimum contacts with the forum state and the exercise of jurisdiction would comply with notions of fair play and substantial justice.
31
What are the bases for a court to have general in personam jurisdiction over a defendant?
1) Consent: defendant consents to case being heard in that state
2) Physical Presence: defendant was served while physically present in forum state (can't be gotten with fraud/force)
3) Domicile: defendant is domiciled in forum state
4) Corporations: for corporations, if the corporation does their principal business in the state and is headquartered there
32
What is a long arm statute?
A statute that gives a state court in personam jurisdiction over out-of-state defendants but ONLY for the
particular transactions involving that state.
33
Do federal courts typically use state or federal long arm statutes?
State. They use the long arm statute of the state in which they sit, unless one of the exceptions applies.
34
What are the exceptions to the use of state long arm statutes practice?
1) Federal Interpleader Act
2) Unusual Provision
3) Bulge Provision
35
What is the Federal Interpleader Act?
Federal law that authorized nationwide service of process to establish PJ
36
What is the bulge provision?
provision in the federal rules that allows for service of process within 100 miles of the courthouse, even if it's out of state, to establish PJ.
Only happens in two situations: for impleading third party defendants under Rule 14 and for joining necessary third parties under Rule 19
37
What is the unusual provision in relation to specific in personam personal jurisdiction?
Rule 4(k)(2). If the plaintiff is suing under federal law, and no state has PJ over the defendant, then the federal courts will have PJ so long as the defendant has sufficient connections to the US as a whole.
38
What is quasi in rem jurisdiction?
A hybrid where the court, lacking in personam over a defendant, instead goes after the defendant's assets that they do have PJ to.
Must follow the same minimum contacts Due Process rule as in personam jurisdiction.
39
What are the ways you can validly do service of process on someone?
Physical delivery: serving the defendant in person
Dwelling: Leaving the service at the defendant's dwelling, with a person of suitable age
State Rules: following the rules of the state where the court sits (i.e., the forum state) or where service is made
Agent: Delivering the summons to an authorized agent of the defendant
Foreign Countries: For foreigner defendants, serve by 1) using mail with a signed receipt or 2) serving in-line with the foreign country's own service of process rules
40
How do you service of process on a corporation?
By serving an officer, executive, or some other agent of the corporation that's authorized to be served on the behalf of the corporation
41
Is notice by publication ever allowed for service of process?
Yes, if you've already made diligent efforts to locate the defendant but cannot. Then you can serve them via publishing.
42
Can a defendant waive the service requirement owed to them?
Yes. Doing so extends the deadline for filing an answer from 21 days to 60 days
43
What is the timeline for a defendant answering the initial complaint?
The defendant must answer the complaint within 21 days, 60 if they're outside US. Failure to answer will result in default judgment in plaintiff's favor.
44
What is an injunction?
A form of relief in a court case that either requires the defendant to do something (mandatory injunction) or prohibits them from doing something (permissive injunction)
45
What is a TRO?
a temporary restraining order that cannot last longer than 14 days, unless good cause is shown to extend it.
Can only be granted after a notice and hearing is had.
46
What must be included in an answer?
Admissions or denials for each allegation, motions that haven't been waived yet, affirmative defenses, and compulsory counterclaims
47
What is a deposition?
A discovery method where a party conducts a written or oral examination of a party or nonparty under oath and outside of court.
48
What is an interrogatory?
A discovery method where a party submits up to 25 written questions to another party, and that other party has 30 days to give written responses
49
What is a motion for judgment as a matter of law?
a request that the court enter a judgment in favor of the movant because the evidence is legally insufficient for a reasonable jury to find in the nonmovant's favor.
50
What should a court consider when deciding whether to grant a judgment as a matter of law?
the court must (1) view the evidence and draw all reasonable inferences in favor of the nonmovant, (2) disregard any evidence favorable to the movant that the jury need not believe, and (3) not consider the credibility of witnesses or the weight of evidence.
51
What standard must an appellate court use when evaluating a lower court's discretionary ruling (ex. whether to admit evidence)?
Abuse of discretion standard, which will reverse the lower court's ruling if it's clearly arbitrary and unreasonable.
52
What is the standard used when an appellate court is evaluating a lower court's final verdict?
Clearly erroneous standard. A judge or jury's final verdict won't be overturned unless it was clearly erroneous
53
Who can use collateral estoppel (issue preclusion)?
Both defendants and plaintiffs. Plaintiffs in later suits can use it offensively to establish an issue against parties from the first action.
Defendants in later suits can use it defensively to stop future plaintiffs from bringing up that same issue over and over again.
54
What must the complaint contain?
1) a short, plain statement establishing the court's subject matter jurisdiction
2) A short and plain statement of the claim establishing entitlement to relief; and
3) A demand for judgment for the relief sought by the pleader.
55
What is permissive joinder under Rule 20?
A joining of multiple plaintiffs together. Plaintiffs can join together if 1) they assert claims arising out of the same transaction or occurrence and 2) there is a common question of fact or law
56
When can permissive and compulsory counterclaims be made?
Permissive counterclaims can be raised any time.
Compulsory counterclaims must be raised pre-answer
56
What are the grounds for granting a motion for new trial?
1) legal errors
2) newly discovered evidence that existed at the time of trial
3) Prejudicial misconduct of judge, party, lawyer, or juror
4) verdict is against the great weight of the evidence
5) verdict is based on false evidence
6) verdict is excessive or inadequate
56
How long does a defendant have to respond to the initial complaint?
They have 21 days to file either an answer or a pre-answer motion
56
What defenses are waived unless they're brought up in the answer or pre-answer motion?
Improper venue, lack of PJ, insufficient process, and insufficient service of process.
These defenses must all be raised in the answer, pre-answer motion, or amended answer if it's amended within 21 days of the original answer
57
What is the forum-defendant rule?
A rule that prohibits removal of a case when:
(1) the federal court's subject-matter jurisdiction arises solely from diversity jurisdiction and
(2) a defendant is a citizen of the state where the case was filed.
This does not apply when removal is based on federal question jurisdiction.
58
Can a pleading be amended?
Yes, a party has a right to amend within 21 days of the serving the original complaint or 21 days of the defendant's response.
After that first one, amending the complaint can be done via court order or consent from the other side.
59
When can a party make an appeal after the final judgment is rendered?
They must file their appeal within 30 days of the final judgment
60
When can a court issue a summary judgment?
1) when there's no dispute as to any material facts; and
2) the movant is entitled to judgment as a matter of law
61
When must a motion to remove a case be filed?
within 30 days of receiving the complaint.
If there's multiple defendants, they must all consent to the removal
62
What kind of law is considered substantive in regard to Erie Doctrine?
1) law addressing statute of limitations
2) law that creates evidentiary privileges
3) law that alters how damages are calculated
63
What is a preliminary injunction?
a temporary court order that commands or prohibits certain actions while the case is pending before the court
64
When will a preliminary injunction be granted?
If the seeking party can show:
1) they're likely to succeed on the merits of the lawsuit
2) irreparable harm will occur if the injunction isn't granted
3) balancing the equities is in the seeking party's favor
4) the injunction is in the public's best interest
65
Can new claims be added into a lawsuit even though the statute of limitations has already run?
Yes. A new claim can be added if the original complaint was timely filed, and the new claim is from the same transaction or occurrence as the claims in the original complaint.
66
Can new parties be added into a lawsuit even though the complaint is already filed, and the statute of limitations has run?
Yes in limited circumstances. A new defendant can be added if:
1) the claim against the new defendant arises from the same transaction or occurrence as the preexisting claims
2) the new defendant must've known about the original complaint within 90 days of when it was filed
3) the new defendant must've known, but for a mistake, he would've been part of the original complaint
67
What is a Rule 19 compulsory joinder?
When a third party must be joined because they are necessary
68
When is impleader appropriate?
Defendant can bring in 3rd party as long as they can show that the reason for bringing them in is related to the original claim
69
What is intervention?
When a nonparty butts into the lawsuit as a party
69
When is intervention appropriate?
As a right, a nonparty can intervene into the lawsuit if:
1) nonparty has interest in property or transaction that is subject matter or action
2) Disposition of action may impair nonparty’s interest
3) Nonparty’s interest not adequately represented by existing parties
Permissive intervention also exists if federal statute allows nonparty to intervene into the suit
69
What counts as sufficient minimum contacts to establish personal jurisdiction?
If there is purposeful availment, meaning that the defendant's contacts with forum state must be purposeful and
substantial, such that D should reasonably anticipate (foresee) being taken to court
there
70
When determining whether to impose sanctions, what factors should a court consider?
In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.
71
What is the special venue rule regarding foreign citizens?
When someone isn't a US citizen, venue is proper in any federal district.
72
When a claim arises under federal question jurisdiction, which substantive and procedural law does the court apply?
Federal procedural and federal substantive law
73
When a claim arises under diversity jurisdiction, which substantive and procedural law does the court apply?
federal procedural law and state substantive law
74
What is the timeline on making a demand for a jury trial?
Any party can make the demand if they:
1) serve the demand on the opposing party within 14 days after the last pleading directed to that issue is served; and
2) the demand is filed with the court within a reasonable amount of time after service on the opposing party
75
How can a party challenge jury instructions?
The party must preserve the issue for appeal by timely objecting to the instructions on the record.
An objection is timely if it's made promptly after learning about the instructions and it's done before the instructions are given to the jury.
76
When can a party move for relief from a final judgment?
The motion must be made within 1 year of the judgment if the basis for the motion is either:
1) newly discovered evidence that couldn't be discovered even with due diligence,
2) the nonmovant engaged in fraud, misconduct, or misrepresentation; or
3) The judgment was due to mistake, inadvertence, surprise, or excusable neglect by the nonmovant or the court
Otherwise, for all other reasons, the motion must be made within a reasonable amount of time from the judgment
76
When can a court order a party undergo a mental or physical examination?
1) mental and/or physical condition is in controversy; and
2) the motion for the order was made in good cause; and
3) the order provides notice by specifying the time, place, manner, conditions, and scope of the exam, as well as the person who will perform it.
77
When can a party make a motion for summary judgment?
30 days after the close of all discovery
78
When does a party need to disclose the expert witnesses they're calling?
90 days before trial
79
When must a plaintiff serve process on a defendant?
Within 90 days after the complaint is filed
80
What are the two kinds of case dismissal?
Involuntary dismissal (defendant moves to dismiss the suit) or voluntary dismissal (plaintiff moves to dismiss the suit)
81
What's the difference between how a voluntary and involuntary dismissal affect the case?
If an involuntary dismissal is granted, it's considered an adjudication on the merits, and thereby dismisses the case with prejudice (plaintiff can't re-sue)
In a voluntary dismissal, the case isn't presumed to be dismissed with prejudice.
82
When does a plaintiff need to file a reply to a defendant's answer?
Only when the court expressly orders them to. A plaintiff doesn't inherently need to make a reply.
83
What are the exceptions to the final judgment rule, allowing immediate appeal as a right?
Certain equitable orders:
1) Injunction (grant or denial)
2) Certification by district court
3) Class action certification
4) admiralty cases
5) appointment of receiver
6) collateral-order doctrine
7) bankruptcy cases
8) petition for writ of mandamus
9) patent-infringement order
84
What's the timeline for when a party can make a motion for a new trial?
Must be made within 28 days of the judgment being entered
85
When can someone make a renewed motion for judgment as a matter of law?
within 28 days of the judgment being entered
86
What can a court do if it grants a new trial because the previous trial's verdict was seriously excessive?
It can offer a remittitur, which is when the court offers the moving party the option to either get a new trial, or take a reduced damages award
87
If a court grants a motion for new trial because the original damages award was too inadequate, what can't the court do?
The court may not give the opposing party (non-moving party) the option to avoid a new trial by agreeing to an increase in the damages amount. This is called additur
88
Who can enter a default judgment?
A judge or a clerk.
A clerk must enter a default judgment if the plaintiff's claim is a sum certain (specified amount) laid out in an affidavit, and the defendant never showed up
89
When does someone have a right to a jury trial in a civil case?
1) If the amount is controversy is at least $20
2) the claim central to the case is a legal claim, i.e., a claim seeking monetary remedy to compensate for loss (eg, tort/contract damages)
90
What is the two-dismissal rule for voluntary dismissals?
If a plaintiff files a complaint in state court then voluntarily dismisses it (withdraws it on their own), that typically doesn't dismiss the case with prejudice.
But if they then go to federal court and file the same claim, and also voluntarily dismiss that claim, now the case is barred.
Filing and withdrawing the same claim in both state and federal court prejudices the claim.
91
what's the timeline on filing a motion for sanctions?
Any party can file a motion for sanctions, or the court can initiate them on their own (sua sponte)
When sanction proceedings are initiated by a party's motion, the safe-harbor rule requires the party serving the motion to refrain from filing it for 21 days after serving it to allow any violation to be corrected
92
when an officer/employee is sued in their official capacity or under color of their legal authority, how do you determine which venue is proper?
1) where any defendant resides
2) where a substantial portion of the events giving rise to the suit occurred or a substantial part of the property at issue is located (property-based venue); or
3) where the plaintiff resides, if no real property is involved.
93
If a party requests that the jury be polled, and the jury's polled answers don't match with the verdict, what must the judge do?
the judge must:
1) order a new trial
2) direct the jury to further consider its answers and verdict or
3) disregard the jury's verdict and enter a judgment consistent with the answers provided
94
If a jury is polled and their polled answers and their verdict match, what must the court do?
If the jury's answers and verdict are consistent, then the judge must enter a judgment consistent with those determinations.
95
What is an interpleader?
When multiple claimants assert claims in a property, the possessor of the property can force the claimants into a single lawsuit to determine who has a right to the property.
96
As part of discovery, what information must a party disclose to the other party, regardless of whether there's a discovery request?
Certain pre-trial disclosures, including:
1) The name, address, and phone number of each witness, identifying witnesses expected to testify at trial and those who may be called if need be
2) The designation of witnesses whose testimony will be presented by deposition, including a transcript of the pertinent parts of any deposition
3) All documents and exhibits, separately identifying items expected to be offered as evidence and those that may be offered if the need arises
97
Timewise, when must a party make mandatory pretrial disclosures as part of discovery?
within 30 days of trial
98
If a plaintiff properly amends their complaint, how long does the defendant have to answer the amended pleading?
Either within (1) the time that remains to respond to the original pleading or (2) 14 days after service of the amended pleading, whichever is later.
99
If you're civilly suing the US government, to whom can you validly serve process?
The US Attorney General and the US attorney for the district in which the action is being filed
100
if a party wants to file a motion to compel the other party to disclosure info as part of discovery, what must they do?
The motion must be filed in the jurisdiction where the case is pending, and the motion must be accompanied by a certification of good-faith conferral, meaning that the moving party tried to confer with the other party, but the other party was being difficult
101
What are the 3 kinds of disclosures that are mandatory?
1) initial disclosures
2) Disclosure of expert testimony 90 days before trial
3) pretrial disclosures 30 days before trial
102
For claim preclusion purposes, does a dismissal of a case with prejudice constitute a final judgment on the merits?
Yes, and claim preclusion would therefore apply
103
what information must a party disclose during the initial disclosure?
1) relevant insurance policies
2) computation of damages and supporting materials
3) items in party's possession that support their claim/defense
4) names and addresses of persons with relevant information
104
What is a petition for a writ of mandamus?
a request that an appellate court direct the district court to do something or refrain from doing something.
These are only justified when extraordinary circumstances exist and no other adequate remedy is available
105
What is a third-party complaint?
When a defendant sues a third party on the basis that the third party is partially or totally responsible for the injuries the plaintiff is currently suing them for
106
when can a third party complaint be made?
A defendant may make a third-party claim against a nonparty for all or part of the defending party’s liability for the original claim made by the plaintiff against the defendant
107
If a suit is dismissed due to the failure to timely serve process, is that dismissal with prejudice or without?
Without prejudice
108
what is the plain error rule, and how does it affect jury instructions?
Normally, if a party wants to challenge an error in the jury instructions for appeal, they need to object at trial.
This doesn't apply if the instructions were plain error. A plain error is an error that's obvious and affects a party's substantive right.
If a jury instruction is a plain error, the party need not object at trial to preserve the issue for appeal. They can just argue it on appeal.
109
Can a defendant amend their answer, and if so, how does that affect their available defenses/arguments?
Yes, they can amend the answer. If they amend the answer within 21 of the original answer's filing, they're still allowed to make the three arguments that're only available in the answer or pre-answer motion:
Improper venue, lack of PJ, insufficient process, and insufficient service of process.
110
What is the relation back doctrine?
Generally, a complaint that's been amended after the statute of limitations has passed won't be admissible. This is an exception to that rule.
An amendment that changes or adds a party "relates back" and is treated like the first complaint if:
1) the new party received notice of the suit within 90 days of the original complaint's filing date; and
2) the amendment relates to the same transaction/occurrence as the original complaint; and
3) the new party knew or should've known that he should've been in the original complaint but for a mistake
111
If a court does sanction someone (either the lawyer or the client), what should the sanctions entail as a punishment?
sanctions are limited to what will deter the misconduct in the future. Sanctions may include nonmonetary directives or an order to pay a penalty.
112
can an answer contain alternative and/or inconsistent defenses?
Yes, as to both. Both can be included in an answer
