Civil Procedure Flashcards
(20 cards)
What must be included in a parties initial discovery disclosures?
Without waiting for a discovery request, a party must disclose the names of all individuals:
(1) Likely to have discoverable information
(2) That the disclosing party may use to support its claim/defense
- EXC: if used solely for impeachment purposes
Who is responsible for the payment of expenses associated with a Motion to Compel?
The party that is subjected to it.
When will a party subjected to a Motion to Compel not be liable for the associated expenses?
- No prior attempt at production was made
- Failure to produce was substantially justified
- Would be unfair to impose expenses on that party
When is venue proper in the district of a defendant’s residence?
If all defendants reside in the same state/district.
When is a cross claim permitted?
If they arise out of the same transaction/occurrence
Is a cross claim ever compulsory?
No
What is the essence/nature of claim preclusion (res judicata)?
Works to preclude cases where the same P subsequently seeks to bring another action against the same D.
Focus is on the parties rather than the claim.
What are the elements of claim preclusion (res judicata)?
- Identical parties (or privity)
Privity exists if:
- Legally recognized relationship, AND
- Would be bound by judgment against prior party. - Court of competent jurisdiction
- Final judgment on the merits
- Arises out of same transaction/occurrence (same claim)
What are the elements of issue preclusion (collateral estoppel)?
- Valid and final judgment
- Identical issue
- Issue was actually litigated/determined/essential
- Subjected party had full and fair opportunity to litigate issue
What is the essence/nature of issue preclusion (collateal estoppel)?
Prevents any party from retrying an issue that has already been judicially determined.
- Judicial efficacy
When can a new trial be granted on the basis of a judgment being against the weight of the evidence?
If a fundamental element required to support the verdict was not presented/litigated at trial.
E.g. if evidence of causation was not established at trial.
What is the Relation Back Doctrine?
Applies to prevent a new claim/defendant from being excluded by the SoL in the context of a pre-existing case that was initially filed within the SoL.
When does a new CLAIM Relate Back?
- If it arises out of the same transaction/occurrence, and
- Is of the same nature that the defendant was essentially on notice of the new claim.
When can the addition of a new DEFENDANT Relate Back?
- Same transaction/occurrence
- New party received noticee of the original action within 90 days of it being filed
- New party knew/should have known that the action would have been brought against it but for a mistake in their identity.
When will a Motion for Summary Judgment be granted?
When there is no genuine dispute of an issue of material fact.
What constitutes a genuine dispute of material fact?
The opposing party must dispute the fact raised by the other party.
Mere logical dispute is insufficient.
When can an affidavit be presented to support a Motion for Summary Judgment?
- Where it is made based on personal knowledge
- By someone competent to testify
- Using facts that would be admissible in evidence
What is a peremptory challenge?
A challenge to the inclusion of a potential juror that relates to their attitude/characteristics that would be unfavorable but not necessarily rise to the level of bias required for a “for cause” challenge.
What limitations exist on the use of peremptory challenges?
What is the effect of a violation?
Cannot be based on race/gender/religion/national origin.
If there is a pattern of challenges for these reasons, then:
1. The opposing party may object, and
2. The court may force counsel to justify the challenges on non-objectionable grounds.
What is a “for cause” challenge?
A challenge based on a potential juror’s bias.
