Civil Procedure Flashcards
(299 cards)
1
Q
For diversity jurisdiction, a corporation is considered a citizen of:
A
1) every state in which it is incorporated; and 2) the one place where its principal place of business is.
2
Q
How many principal places of business can a corporation have?
A
Only one.
3
Q
May a single plaintiff aggregate unrelated claims against a single defendant to reach the $75,000 < requirement for diversity jurisdiction?
A
Yes.
4
Q
Under the Erie Doctrine, federal courts apply state ____________ law and federal _____________ law.
A
Substantive; procedural.
5
Q
If one plaintiff invokes diversity jurisdiction in federal court, another plaintiff may invoke supplemental jurisdiction to have their claim heard in federal court, too if:
A
1) the claim arises from the same nucleus of operative fact; and 2) there is complete diversity between the plaintiffs and the defendant(s).
6
Q
28 U.S.C. 1331 does what for federal courts?
A
Grants federal district courts original jurisdiction to hear all civil causes of action arising under the Constitution, laws or treaties of the United States.
7
Q
28 U.S.C. 1332 does what?
A
Establishes diversity of citizenship jurisdiction and the amount in controversy requirement.
8
Q
Under Title 28, can a citizen of a state sue a citizen of a foreign country?
A
Yes. Diversity jurisdiction allows a United States citizen to sue a citizen of a foreign country in federal court so long as there is complete diversity between the parties and the amount in controversy requirement is met.
9
Q
What are two areas of cases over which the federal courts will refuse to exercise jurisdiction?
A
Domestic relations and probate.
10
Q
Will the federal courts exercise jurisdiction over criminal proceedings?
A
Yes, where appropriate.
11
Q
Are attorneys fees and interest included in the amount in controversy requirement for diversity of jurisdiction?
A
Yes, if the attorneys fees are recoverable by contract and interest is part of the claim.
12
Q
When can a plaintiff or defendant intervene in a case?
A
When the plaintiff/defendant has a claim/defense involving a common question of law or fact. This is within the judge’s discretion.
13
Q
When are the parties’ citizenship settled for purposes of the diversity requirement?
A
At the time the lawsuit is filed with the court.
14
Q
Can the federal courts exercise *diversity jurisdiction over criminal proceedings?
A
No. Federal courts cannot exercise jurisdiction over criminal proceedings simply because there are diverse parties.
15
Q
In order to bring a claim to federal court under supplemental jurisdiction, the original claim must . . .
A
be based on federal subject matter jurisdiction.
16
Q
A brings a federal subject matter jurisdiction claim to federal court. B, another plaintiff, brings a state claim which shares common issues of law or fact as A’s claim to federal court under supplemental jurisdiction. A’s claim is later dismissed by the court. Must B’s claim also be dismissed?
A
No. Claims brought to federal court under supplemental jurisdiction can remain in the federal court despite the federal subject matter claim which the supplemental jurisdiction claim piggy-backed off of was dismissed.
17
Q
Under what circumstances will a state claim that is in federal court via supplemental jurisdiction be dismissed to state court?
A
If the state claim is 1) complex or novel; 2) predominate over the federal claims; or 3) in exceptional circumstances there are compelling reasons why the court must decline jurisdiction.
18
Q
Is there an amount in controversy requirement for federal subject matter jurisdiction?
A
No. The amount in controversy requirement only applies to diversity of citizenship jurisdiction.
19
Q
Is using a federal defense against a state claim enough to get federal subject matter jurisdiction?
A
No. A complaint will not create federal question jurisdiction if it alleges federal issues only in anticipation of some defense.
20
Q
What content is taken into consideration in determining whether there is federal subject matter jurisdiction over a claim?
A
None. The content of the claim or counterclaim is irrelevant, so long as the requirements for establishing federal subject matter jurisdiction are met.
21
Q
Federal question jurisdiction will arise by virtue of a plaintiff suing a corporation which was incorporated by Congress and . . .
A
the United States owns more than 50 percent of the corporation’s capital stock.
22
Q
Violation of a federal statute is sufficient to establish federal question jurisdiction regardless of whether it . . .
A
expressly provides for a civil cause of action in the case of its violation.
23
Q
When the United States owns more than 50 percent of the capital stock in a corporation incorporated by Congress, the corporation is treated as a ___________________.
A
federal agency and can sue or be sued on that basis alone.
24
Q
A and B are both citizens of Kansas. A wants to sue B in federal court, but there is no issue of federal law and there is no diversity between the parties. How can A establish diversity jurisdiction?
A
A can dismiss his suit, move to Missouri, then refile the case in a Kansas or Missouri Federal District Court, assuming his amount in controversy meets the $75,000+ threshold.
25
Rob files a state law action in the Jackson County, Missouri District Court. Alex, the defendant, wants to remove the case to federal court. Assuming it is capable of being removed to federal court, Alex removes it to the U.S. District Court for the Eastern District of Missouri. Is his removal proper?
Yes. In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if the venue would have been improper had the plaintiff originally filed the action in the federal district court of that state.
26
How long does a defendant have to remove a case from state court to federal court based on diversity of citizenship?
One year. A case may not be removed to federal court based on diversity of citizenship more than one year after it was filed in state court. 28 U.S.C. 1441.
27
Rob files a lawsuit in Jackson County District Court which contains both state and federal claims. Alex, a co-plaintiff, wishes to join an action with Rob's actions which arises only under state law. The defendant wishes to remove the case to federal court. Which claims can be removed to federal court?
All of them. If a case filed in state court contains a claim that would arise under federal law, and it is joined with a state law claim that does not invoke diversity or supplemental jurisdiction, the entire case may nonetheless be removed to federal court. 28 U.S.C. 1441.
28
A sues B in state court. Before trial, B demands a trial by jury as required for jury trials under that state's law. B later decides to remove the case to federal court. Must B demand a jury trial again when he gets to federal court?
No. If a party has demanded a jury trial in accordance with state law, and the case is later removed to federal court, the party need not reassert their demand for a jury trial in order to get one in federal court.
29
What must a complaint include?
1) a short statement of the grounds for the court's jurisdiction; 2) a short statement of the claim showing the plaintiff is entitled to relief; and 3) a demand for judgment for relief (which may be in the alternative).
30
If a defendant waives service of process, what else does she waive?
Nothing. A defendant waiving service of process does not automatically waive the right to object to venue or personal jurisdiction.
31
How consistent must the pleadings of a party be?
Not at all consistent. A party may set forth as many claims and defenses as they may have in their pleadings regardless of their consistency.
32
What must be present in order for named representatives to sue on behalf of a class in a class action lawsuit?
Questions of law or fact that are common to the entire class.
33
What types of sanctions can be levied on parties under Rule 11 of the Federal Rules of Civil Procedure?
Monetary penalties and nonmonetary penalties.
34
To whom can Rule 11 sanctions be extended?
Parties, lawyers and law firms.
35
When must the representatives of a class notify the class of a dismissal or settlement of the class action lawsuit?
When the judgment binds the class. If the judgment does not bind the class, the representatives need not inform the class of the settlement.
36
In a federal question case, when is the action considered as being commenced for Statute of Limitations purposes?
When the action is filed with the federal court.
37
What rule governs interpleader?
Rule 22 of the Federal Rules of Civil Procedure
38
What is the source of statutory interpleader?
28 U.S.C. 1335
39
What does it mean to implead someone?
To bring another party into the lawsuit which is on the same side as you. A defendant may implead a third party defendant.
40
What does it mean to interplead someone?
To bring another party into a lawsuit who opposes you. A plaintiff may interplead a third party defendant.
41
A class action lawsuit founded on diversity jurisdiction may go forward as long as . . .
any named class representative's claim exceeds $75,000.
42
Supplemental Pleading —
a pleading relating to matters accruing after the date of the original pleading.
43
Intervention of Right —
where an applicant for intervention has an interest in the property or transaction which is the subject of the suit and whose ability to protect such interest might be impaired by the disposition of the action; i.e. the suit involves her property or something she has an interest in and she is a stakeholder in the outcome of the case.
44
Who issues a default judgment?
The Clerk of the Court
45
What is required for the Clerk of the Court to issue a default judgment?
The defendant cannot be an infant or incompetent; the plaintiff's claim must be for a sum certain; and the default must have been entered because the defendant failed to appear in court.
46
A, a resident of Kansas, sues B, a resident of Missouri. The suit is filed in federal court and is therefore subject to federal civil procedure. Which state's law governs the service of process on B?
Missouri law. Federal Rule of Civil Procedure 4 permits the service of process in accordance with the law of the state where the defendant is domiciled.
47
What must a 3rd party defendant do after having been impleaded by the defendant? What may he do?
After being impleaded by a defendant, a third party defendant *must* assert any compulsory counterclaims which arise out of the same common nucleus of operative fact and *may* assert any permissive counterclaims. The permissive counterclaims must meet the jurisdictional requirements, but need not arise out of the same common nucleus of operative fact as the original claim.
48
What is the overall test for determining whether there is personal jurisdiction?
1) is there a state statute granting personal jurisdiction; and 2) does personal jurisdiction satisfy the Constitution?
49
The constitutional analysis for determining whether there is personal jurisdiction requires that the defendant have minimum contacts with the forum state such that "jurisdiction does not offend traditional notions of fair play and substantial justice." What does that require the court to assess?
The court must assess the following factors: 1) contacts; 2) relatedness; and 3) fairness.
50
In determining whether the defendant has sufficient contacts with the forum state, what two things must be proven?
1) the contact must result from a purposeful availment by the defendant; and 2) it must be foreseeable that the defendant could get sued in that forum.
51
What are some examples of a purposeful availment by the defendant?
Marketing a product in the forum; using the roads in the forum; establishing a domicile in the forum; traveling in the the forum; sending an email into the forum state.
52
What must be found in order to meet the relatedness prong of the constitutional test for personal jurisdiction?
The plaintiff's claim must arise from the defendant's contact with the forum state.
53
If a plaintiff's claim arises from a defendant's contact with a state, what kind of personal jurisdiction does the court have over the defendant?
Specific personal jurisdiction.
54
If the plaintiff's claim does not arise from the defendant's contact with the forum state, can the court still exercise personal jurisdiction over the defendant?
Yes, if the court has general jurisdiction. In that case, the court will have personal jurisdiction over the defendant for claims that arose anywhere in the world.
55
For a court to have general jurisdiction, what must be true?
The defendant is at home in the forum state.
56
Where are corporations domiciled; i.e. subject to general personal jurisdiction?
1) wherever it is incorporated; and 2) where it's principle place of business is located.
57
To meet the fairness prong of the constitutional test for personal jurisdiction, what must be considered?
The following must be considered: 1) the burden on the defendant and witnesses; 2) the state's interest; and 3) the plaintiff's interest.
58
The fairness prong of the constitutional test for personal jurisdiction applies only to . . .
specific jurisdiction
59
General Jurisdiction —
a state has jurisdiction over those who are at home in that state, despite their actions taking place elsewhere.
60
Specific Jurisdiction —
a state has jurisdiction over those who are in the state and whose actions take place in that state.
61
What does notice consist of?
A summons and a copy of the complaint.
62
If the D is to be served in the USA, service is to take place within how long?
Within 90 days of the complaint being filed with the court.
63
If the D executes and mails a waiver form to the P within ________ days, the D waives formal service of process.
30
64
If the D waives formal service of process, does D waive any defense like lack of PJ?
No
65
When D signs and mails the waiver form back to P, what does P do?
Files it with the court.
66
If D fails to return the waiver form, and there is no good cause for having not returned the waiver form, what is the D liable for?
The cost of service of process.
67
What happens if a process server fails to file an affidavit regarding his serving process on someone, what happens?
Nothing. It is still valid service.
68
When might someone be immune from service of process?
When that person is in a jurisdiction because they are a party, witness or attorney in a case in that jurisdiction. That is the only reason they are present in the jurisdiction.
69
How are other documents, like discovery, motions, etc. delivered to the other side?
Delivery or mail. You can also do it by email if you agree to do that.
70
Most claims under __________ law can be heard by state courts.
federal
71
What are the two main types of cases that can be heard in federal court?
Diversity of jurisdiction and federal question.
72
Diversity of jurisdiction includes what kind of jurisdiction?
alienage
73
What are the requirements for establishing diversity of citizenship jurisdiction?
1) complete diversity; and 2) amount in controversy is over $75,000.
74
Alienage Jurisdiction —
Citizen of the USA v. Citizen of another country
75
Diversity of Jurisdiction —
Kansas v. Missouri
76
A foreign citizen has a green card and is legally admitted for permanent residence in the United States. If she is sued, is the case under diversity of citizenship jurisdiction or alienage jurisdiction?
Alienage jurisdiction. A citizen of a foreign country, regardless of their being legally present in the United States, cannot be considered a citizen for purposes of the diversity of citizenship rule.
77
How is one's citizenship determined?
Wherever the person is domiciled.
78
The plaintiff, a U.S. citizen who is domiciled in Japan, sues the defendant, a resident of California in federal court. Is there alienage jurisdiction?
No, because the plaintiff is not an alien; he is a U.S. citizen.
79
The plaintiff, a U.S. citizen who is domiciled in Japan, sues the defendant, a resident of California in federal court. Is there diversity of citizenship jurisdiction?
No, because the plaintiff is not a citizen of a U.S. state, because he is domiciled out of the country.
80
Can a person have more than one domicile at once?
No. You can only have one domicile.
81
How do you establish a new domicile?
1) presence in the new place; and 2) intent to make it your home for the foreseeable future.
82
When is citizenship in a case established?
When the suit is filed.
83
Is the District of Columbia a state for purposes of diversity of citizenship?
Yes.
84
What is the citizenship of a corporation?
1) every state where it is incorporated; and 2) the one state where it has its principal place of business.
85
What is the citizenship of an unincorporated association?
Wherever its members are citizens.
86
What are some examples of an unincorporated association?
Partnerships, LLCs, etc.
87
In the case of a limited partnership, do you include the citizenships of the limited partners for purposes of establishing citizenship?
Yes.
88
Aggregation —
adding two or more claims to meet the amount in controversy requirement.
89
Can we aggregate factually unrelated claims?
Yes.
90
Is there a limit to the number of claims that can be aggregated?
No
91
Plaintiff #1 sues D for $50,000. In the same case, Plaintiff #2 sues D for $40,000. Can we aggregate these claims?
No, because the claims are not brought by the same plaintiff. To aggregate, the claims must be by the same plaintiff against the same defendant.
92
Where a plaintiff is suing a defendant in equity rather than for damages, how is the amount in controversy requirement met?
There are two tests in this kind of case: 1) does the defendant's activity decrease the plaintiff's position by more than $75,000? 2) would it cost the defendant more than $75,000 to comply with the equitable solution? If yes to either, than the requirement is met.
93
What kind of cases will federal courts never hear?
Divorce, alimony, child custody, and probate/estate.
94
When must the defendant remove the case?
The defendant must remove the case to federal court within 30 days of service of the first paper which shows the case is removable.
95
Who must join in the removal?
All defendants who have been served with process.
96
Must all defendants remove the case by using the same removal notice document?
No, they may all remove the case to federal court using separate documents, so long as they all do so in a timely fashion.
97
Can plaintiffs ever remove a case to federal court?
No
98
What kind of cases can be removed to federal court?
Any case which could have been filed in federal court originally; i.e. any case which meets the diversity of citizenship or federal question requirements.
99
A plaintiff from Georgia sues a defendant from Minnesota and a defendant from Alabama on state law claims for $500,000 in an Alabama state court. Can the defendants remove?
No, because one of the defendants is a citizen of the state where the case is filed. Removal is prohibited where one of the defendants is a citizen of the place where the case is filed.
100
In-State Defendant Rule —
a case which is based on diversity of citizenship cannot be removed to federal court when the defendant is a citizen of the state where the suit is filed.
101
Is there a temporal limit on when a case can be removed to federal court?
Yes. A case cannot be removed more than one year after it was first filed in state court.
102
To what federal court does a defendant's removed case go to?
The federal court "embracing" the state court where the case was originally filed.
103
Does removal require permission from the state or federal court?
No
104
Supplemental Jurisdiction —
in a case where a claim is properly in federal court, the parties can make additional claims which do not meet complete diversity or federal question requirements.
105
In order for a federal court to exercise supplemental jurisdiction over a claim, what must the claim do?
The claim must arise out of the same common nucleus of operative fact as the claim which invoked subject matter jurisdiction; i.e. it must arise out of the same transaction or occurrence as the claim that invoked SMJ.
106
There is a limitation to supplemental jurisdiction being exercised over certain kinds of cases. To what kind of cases does the limitation apply to?
Diversity of citizenship cases.
107
When can a federal court decline supplemental jurisdiction?
If the federal claim is dismissed early in the case.
108
Generally, describe the Erie Doctrine
The federal court in a diversity case must apply the substantive law of the state and the procedural law of the federal government.
109
In a diversity case where federal law directly conflicts with state law, which law must be applied by the judge?
Federal law due to the supremacy clause of the Constitution.
110
In a diversity case where federal law does not directly conflict with state law, what law must the judge apply?
State law if the issue to be determined is "substantive."
111
What kinds of law are patently substantive for purposes of the Erie Doctrine?
Elements of a claim or defense; statutes of limitations; rules for tolling statutes of limitations; and conflict of law rules.
112
In a diversity case where federal law does not directly conflict with state law, and the issue to be determined is not obviously substantive, what must the federal judge do?
Determine whether the issue is substantive or not. In making this determination, the court must consider the following: 1) is applying the particular law outcome determinative? 2) does either federal or state system have strong interest in having its rule applied? 3) if the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, the court should probably apply state law.
113
There is no ______________ federal common law.
general
114
The plaintiff may file suit in any federal district court where:
1) all defendants reside; or 2) a substantial part of the claim arose.
115
What district court is proper venue for a case which was originally filed in state court but which has been removed by the defendant?
The federal court embracing the state court in which the action was originally filed.
116
Can a substantial part of a claim arise in more than one district?
Yes
117
If the defendant lives outside the United States, which federal court is proper venue?
Any U.S. District Court
118
What district court is proper for a case where the plaintiff is suing two defendants, each of whom live in a different district?
Either district where one of the defendants lives.
119
For venue purposes, where does a business reside?
Anywhere it is subject to personal jurisdiction.
120
Transfer —
the transferring of a case from one trial court in a judicial system to another trial court in the same judicial system.
121
In order to transfer a case to another court in the same judicial system as the court from which it is being transferred, the court to which the case is being transferred must . . .
1) be a proper venue; and 2) have personal jurisdiction over the defendant.
122
There is an exception to the transfer requirement that the venue be proper. What is it?
Under transfer statute #1, the court can transfer to any district if all parties consent and the court finds cause for the transfer.
123
If the venue is improper, what may that court do?
If can either dismiss the case or transfer in the interest of justice.
124
What does forum non conveniens do for a case?
Under FNC, the court either dismisses the case or stays it due to inconvenience of bringing the suit in that court. The court will stay the case if it belongs in another judicial system. It will dismiss the case without prejudice if it belongs in another court within the same judicial system.
125
What must a complaint contain?
1) a statement of grounds of the court's subject matter jurisdiction; 2) a short and plain statement of the claim showing entitlement to relief; and 3) a demand for relief sought.
126
There are three matters which, when a plaintiff writes a complaint, must be described in more detail than other causes of action. What are these causes of action?
Fraud; mistake; special damages.
127
What are the methods by which a defendant can respond to a plaintiff's complaint?
1) by motion; or 2) by answer.
128
A defendant has how long to respond to a plaintiff's complaint?
21 days if service of process was not waived; 60 days if waived.
129
Motions are not ______________.
pleadings
130
Answers are ______________.
pleadings
131
What must a defendant do in their answer?
1) respond to allegations of the complaint; and 2) raise affirmative defenses to the allegations.
132
The plaintiff and defendant both have right to amend their pleadings (complaint and answer, respectively) how often and within what time period?
Once; within 21 days of serving their complaint/response.
133
What happens if either party does not have a right to amend their pleading?
They must seek leave of court.
134
Where the evidence at trial does not match with the allegations made in the pleadings?
The court will grant that party leave to amend their pleading.
135
Under what circumstances can a plaintiff add a claim to their complaint after the statute of limitations has run on that claim?
The court will allow adding the claim to the complaint if it "relates back;" i.e. if the added claim concerns the same conduct, transaction or occurrence as the original pleading.
136
When can a plaintiff or defendant add a defendant after the statute of limitations has run on the cause of action?
If the addition of the defendant 1) concerns the same conduct, transaction or occurrence as the original; 2) the new party knew of this case within 90 days of filing; and 3) she also knew or should have known that, but for a mistake, she would have been named originally.
137
What are supplemental pleadings?
Pleadings which set forth things that happened *after* the pleading was filed with the court.
138
What are amended pleadings?
An amended pleading which sets forth things that happened *before the pleading was filed but which were not asserted until after.*
139
Is there a right to make an amended pleading?
No. The party seeking the amended pleading must make a motion.
140
Broadly, what does Rule 11 require?
That you are honest with the court and with the other parties.
141
May a party who is making a claim join additional claims to the case, even if they are wholly unrelated to the other claims?
Yes, assuming that the new claim has SMJ.
142
Describe Joinder of Claims —
A party making a claim may join additional claims in the same case even if the new claim is wholly unrelated to the original claim so long as the new claim meets the requirements for SMJ.
143
What are the requirements for joining parties?
A party may properly join additional parties on their side if: 1) the claims of the new parties arise from the same transaction or occurrence; and 2) the parties all raise at least one common question of fact or law.
144
Can a court force a defendant or plaintiff to be joined?
Yes
145
An absent party is necessary, and therefore capable of being joined by the court, if:
1) without them, the court cannot accord complete relief among existing parties; 2) the absentee's interest may be harmed if they are not joined; or 3) the absentee claims an interest that subjects a party to a risk of multiple obligations.
146
Must all potentially responsible defendants be joined in an action?
Never.
147
A necessary party can only be joined in a case if their joinder is ______________.
feasible; i.e. 1) there is PJ over you; and 2) joining you will not goof up diversity jurisdiction.
148
If a joinder is found to be feasible, what will the court do?
It will join you!
149
What happens if an absentee party is found that it cannot be joined due to lack of personal jurisdiction or another reason?
The court can 1) proceed without the absent party; or 2) dismiss the whole case.
150
Counterclaim —
a claim against an opposing party who has already made a claim against you. Ex: P sues D. D sues P back. D suing P back is a counterclaim.
151
What types of counterclaims are there?
Compulsory counterclaims and permissive counterclaims.
152
Compulsory Counterclaim —
A counterclaim which arises out of the same transaction or occurrence as the plaintiff's original claim. These *must* br brought against the plaintiff or the defendant loses their right to assert it.
153
Permissive Counterclaim —
A counterclaim which does not have to be asserted in that particular case because it does not arise out of the same transaction or occurrence as the plaintiff's original claim.
154
Must a counterclaim meet the requirements for subject matter jurisdiction?
Yes. All counterclaims must be assessed as to whether they meet the requirements for subject matter jurisdiction.
155
Crossclaim —
a suit against a co-party which arises from the same transaction or occurrence as the plaintiff's original claim. These are not compulsive. You can bring these separately.
156
Must a crossclaim meet the requirements for subject matter jurisdiction?
Yes. Literally every claim must meet the requirements for subject matter jurisdiction. If it does not, try supplemental jurisdiction.
157
Impleader —
a defendant's bringing in a third party into the suit by suing that third party. These are not compulsory. These are usually done for indemnity or contribution purposes.
158
How long does a defendant have to implead a third party defendant?
14 days before it must ask the court for permission.
159
After a third party defendant has been joined via impleader, can the plaintiff bring an action against that third party defendant?
Yes, so long as the claim arises from the same transaction or occurrence as the original claim.
160
After a third party defendant has been joined via impleader, can the third party defendant bring an action against the plaintiff?
Yes, so long as the claim arises out of the same transaction or occurrence as the original claim.
161
Intervention —
a non-party brings herself into the case either as a plaintiff or defendant.
162
What types of intervention are there?
Intervention of right and permissive intervention.
163
Intervention of Right —
an intervenor's interest may be harmed if she is joined and is not adequately represented.
164
Permissive Intervention —
an intervenor's claim or defense and the pending case have at least one common question.
165
Must an intervention action by a non-party meet the requirements for subject matter jurisdiction?
Yes.
166
Class Action —
a representative sues on behalf of a group.
167
For a class action to be filed, it must meet all four of the following requirements:
1) numerosity; 2) commonality; 3) typicality; and 4) representative is adequate.
168
What types of class actions are there?
There are three types of class actions, depending on the kind of relief sought: 1) prejudice; 2) injunction or declaratory judgment; or 3) damages.
169
In order to file a damages class action, the plaintiff/representative must prove:
1) common questions predominate over individual questions; and 2) class action is the superior method to handle the dispute.
170
When is a case officially a class action?
When the court grants the motion to certify the class.
171
Damages class actions require the court to do what to class members?
Give notice of their being in a class. This notice can be sent by mail.
172
Who pays to have members of a class notified of their being in a class action lawsuit?
The representative of the class
173
Class members have a right to opt out of _________________ class actions.
damages
174
Class members do not have a right to opt out of what kind of class actions?
Injunctive/declaratory relief or prejudice class actions.
175
When can parties settle or dismiss a certified class action?
When the court approves.
176
Must class action cases meet the requirements for subject matter jurisdiction?
Yes.
177
Under the Class Action Fairness Act, when can a class action get subject matter jurisdiction?
When 1) any class member is diverse from any defendant; and 2) if the aggregated claims of the class exceed $5 million.
178
In regards to discovery, what must each party disclose to the other side?
Identities of persons who have discoverable information that you can use to support your position; documents or objects you may use to support your claims or defenses; a computation of relief and documents support it; and insurance coverage.
179
What happens if a party fails to disclose something she was required to disclose as an initial disclosure?
That party cannot use that material in their case.
180
Must you disclose an expert who helps you put the case together, but who you do not intend on having testify?
No. They are merely a consulting expert.
181
What must you disclose in regards to an expert witness?
1) the identity of the witness; and 2) a written report by the expert witness describing their findings, opinions, bases for the opinions, facts used to form opinions, their qualifications and how much they are being paid.
182
When may a person take a deposition of an expert witness?
After the written report by the expert has been submitted to the opposing side.
183
Must a side disclose earlier drafts of an expert witness's written report?
No; those are work product.
184
What happens if a side fails to disclose an expert witness?
They cannot use the EW unless their failure was justified or harmless.
185
How long before trial must each side disclose their evidence and witnesses to the other side?
No later than 30 days before trial.
186
How do you get a non-party to submit to a deposition?
A subpoena from the court.
187
What does a subpoena duces tecum do?
Requires a witness to bring documents or objects to a deposition.
188
Unless the other party agrees, what is the farthest you can make a nonparty travel for a deposition?
100 miles from their residence or their employer.
189
What is the maximum number of depositions you can take?
You cannot depose an individual more than twice and you are given ten depositions overall before you start requesting court approval.
190
To whom are interrogatories sent?
Parties, never nonparties.
191
How long do you have to respond to an interrogatory?
30 days from the service of the interrogatory.
192
Are interrogatories asking about the points or contentions being made by the other party in the case OK?
Yes.
193
What is the maximum number of interrogatories you can send to another party?
25 questions.
194
Can you use your own answers to interrogatories at trial?
No
195
Where a request to produce has been received by a party, what must that party do?
They must respond in writing within 30 days of service, stating either that the material will be produced or asserting objections.
196
In order to perform a medical exam on someone, what must you first attain?
A court order
197
What must you show in order to get a court order to have medical exam performed on someone?
You must show 1) the person's health is in actual controversy; and 2) good cause.
198
Who can be ordered to undergo a medical exam?
A party or someone in the party's custody or legal control.
199
Who chooses the doctor to perform a medical exam?
The party requesting the medical exam
200
Can a party who was subject to medical exam receive a copy of the medical exam?
Yes, by requesting it.
201
What must a party do after they request to see the medical exams they were subject to?
They must disclose the medical reports of their own physicians about the relevant medical condition. Additionally, the party waives all doctor-patient privilege on that particular medical issue.
202
What does a request for admission do?
Requests the other party to admit or deny something.
203
If you do not expressly deny something, you are deemed as having . . .
admitted it.
204
Can the responding party say she does not know the answer to a request for admission?
Yes, but only if she states she made a reasonable inquiry and cannot find enough information from which to deny or admit.
205
All discovery requests and responses must be ______________.
signed
206
When circumstances change after you have responded to a request to admit, you must send the requesting party a . ..
supplemental admission.
207
Generally, what is discoverable?
Anything that is 1) relevant and 2) proportional to the needs of the case.
208
Things can be discovered that are not _______________.
admissible at trial.
209
Is privileged information capable of being discovered?
No, unless the other party waives the privilege.
210
Work Product —
something prepared by a party to a case which is *made in anticipation of litigation.*
211
Must work product be made by a lawyer?
No, a party or representative can make work product.
212
When can work product become discoverable?
Work product is discoverable when 1) there is substantial need; and 2) the information contained therein cannot be gained by any other method.
213
Despite the exception to work product not being discoverable, there are certain things which can never, ever be discoverable. These include:
mental impressions, opinions, conclusions, and legal theories.
214
To assert privilege or work product, and therefore render something undiscoverable, you must do what?
You must expressly claim the privilege or work product and describe it in a document for the judge.
215
What can a side do if they believe a discovery request subjects them to annoyance, embarrassment, undue burden, or expense?
The party being requested can ask for a protective order.
216
To receive a protective order from the court, the party requesting the order must make what?
A good faith showing that they have tried to work it out with the other party.
217
What may a party do if the opposing party responds to a request for discovery, but does not fully comply with the request?
Move for a motion to compel discovery.
218
What may a party do if there is no response to a request for discovery?
Seek sanctions.
219
When litigation is reasonably anticipated, both parties have a duty to ______________ discovery.
preserve
220
Preliminary Injunction —
a court order that the defendant do or not do something in order to prevent the defendant from prejudicing the plaintiff's case.
221
What might a party seek in order to preserve the status quo before a hearing has been held regarding whether a preliminary injunction will be granted?
The party wishing to preserve the status quo can move for a temporary restraining order.
222
Can a court order a temporary restraining order without first notifying the defendant?
Yes, but only if 1) the applicant files a paper under oath clearly showing that if the TRO is not issued, he will suffer immediate and irreparable harm; and 2) the applicant's lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant's lawyer.
223
How long is a TRO effective?
14 days. It can be renewed for another 14 days.
224
Can you appeal a decision to grant a TRO?
No
225
What must be shown by the applicant for a preliminary injunction in order to get the order to be issued by a court?
1) he is likely to suffer irreparable harm if the injunction is not issued; 2) he is likely to win on the merits; 3) the balance of hardship favors him; and 4) the injunction is in the public interest.
226
If the court issues a preliminary injunction, the applicant must post a ___________.
bond.
227
Is an order granting or denying a preliminary injunction immediately appealable?
Yes
228
When can a plaintiff make a motion for voluntary dismissal?
Anytime
229
When does a plaintiff have a right* to take a voluntary dismissal by filing a notice of dismissal?
Before the defendant has served an answer or has moved for summary judgment.
230
A plaintiff files a case, and then files a notice of dismissal. The plaintiff later refiles the case and then files a notice of dismissal. What is the result of the second notice?
It is dismissed with prejudice, whereas the first time is was dismissed, it was dismissed without prejudice.
231
When is a default judgment issued? By whom is it issued?
When the defendant does not respond to the complaint within 21 days of being served with process; the clerk of court.
232
What must the plaintiff do when the defendant fails to respond to a complaint?
The plaintiff must make a motion for a default judgment. Otherwise, the plaintiff is assumed to be waiting around for the defendant to finally respond.
233
What must the plaintiff show in order to get a default judgment?
1) show the defendant has made no response; 2) the claim itself must be for a sum certain in money; 3) the claimant must give a sworn statement of the sum owed; and 4) the defendant is not a minor or incompetent.
234
Can the plaintiff ask the court for a default judgment?
Yes
235
A defendant may make a motion to set aside a default judgment, but only if:
1) she shows good cause; and 2) shows a viable defense.
236
What does a Rule 12(b)(6) motion do?
It argues that the plaintiff has failed to state a claim; i.e. that the facts do not align with a cause of action on which the plaintiff can get relief.
237
What does the judge consider in determining whether to grant a 12(b)(6) motion?
Just the facts. No evidence, no conclusions, no law.
238
After the defendant has answered the plaintiff's complaint, the defendant may make a motion which is exactly the same as a 12(b)(6) motion. What is this motion called?
A motion for judgment on the pleadings, because both sides have plead their case.
239
What must a party show in order to be granted a motion for summary judgment?
The moving party must show: 1) there is no genuine dispute on a material fact; and 2) that she is entitled to judgment as a matter of law.
240
How long do you have to make a motion for summary judgment?
No later than 30 days after close of discovery.
241
The court has ______________ in deciding whether to grant a motion for summary judgment.
discretion
242
Can a motion for summary judgment be for partial judgment, such as to liability but allow the case to go to trial on damages?
Yes
243
Can the court look at evidence in deciding to grant a motion for summary judgment?
Yes; it looks at the evidence in the light most favorable to the non-moving party.
244
Motion in Limine —
a pretrial motion to decide whether the jury should hear certain evidence.
245
Does the Seventh Amendment right to a jury trial apply to cases at equity?
No. Therefore, in a case involving both a legal damages claim and equitable relief, the jury will determine the facts as to the damages and not to the equitable relief.
246
What happens when a fact underlies both a claim for damages and a claim for injuntive relief?
The jury will determine the fact.
247
In a trial involving both claims for damages and injunctive relief, which issues will be heard first?
The damages
248
Does the Seventh Amendment apply to state courts?
No
249
What types of challenges are there to jurors?
For cause; peremptory. You get unlimited for-cause challenges, and a limit of 3 for peremptory challenges.
250
What is the minimum and maximum number of jurors allowed in federal court?
Minimum of 6; maximum of 12.
251
Must a jury verdict be unanimous?
Yes, unless otherwise agreed by the parties.
252
Must the parties be allowed to make specific objections to the instructions and to the rejection of proposed instructions?
Yes, on the record and outside the jury's hearing
253
Motion for Judgment as a Matter of Law —
also referred to as a directed verdict, this motion is like a summary judgment motion except that it comes up at trial. It can only be entertained after the non-moving party has been heard.
254
Renewed Motion for Judgment as a Matter of Law —
the same thing as a JMOL except made after the trial.
255
When will a JMOL be issued?
If reasonable people could not disagree about a party winning.
256
When will a RJMOL be issued?
If a reasonable person could not reach the conclusion the jury made.
257
Motion for a New Trial —
judgment is entered, but some error at trial requires that we start over and have a new trial.
258
Remittitur —
a finding that the damages owed to the plaintiff are excessive. In this case, a judge will give the plaintiff a choice: a new trial or reducing the damages to be paid by the defendant.
259
Additur —
a finding that the damages to the plaintiff are insufficient. In this case, a judge will give the defendant a choice: new trial or a larger payment to the plaintiff.
260
Where a plaintiff is offered a settlement, but rejects it, and later receives damages which are not as large as the settlement, the plaintiff is . . .
liable for the cost incurred by the defendant after the offer was made.
261
The loser in a case has a right to appeal from a ________________.
Final judgment
262
Final Judgment —
a judgment that determines the merits of the entire case. To determine whether an order is a final judgment, we must ask: after making the ruling, does the trial court have anything left to do on the merits of the case.
263
Where and when do you file a notice of appeal?
With the district court no more than 30 days after the final judgment.
264
When the district court decides questions of law, what standard does the Court of Appeals use?
De novo
265
The content of a jury instruction is a question of __________.
law
266
In a non-jury trial, when the district judge makes findings o fact, the court of appeals will affirm unless . . .
the findings are clearly erroneous
267
In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless . . .
reasonable people could not have made that finding.
268
On discretionary matters, the court of appeals will affirm unless . . .
the district court abused its discretion
269
An error of law will not be overturned on appeal if . . .
it is harmless.
270
When can a 12(b)(6) motion be made?
Any time before or during trial.
271
Generally, amendments to pleadings relate back to the date the original pleading was filed if:
The amendment concerns the same conduct, transaction, or occurrence that was set forth in the original pleading
272
If it is determined that an absentee’s interest in the subject matter of the litigation would be affected by a judicial determination of a case, the court has personal jurisdiction over the absentee, and joining him would not destroy jurisdiction or venue, he:
Must be joined as a party to the case
273
Under certain circumstances, a _______ may be issued without notice to the other party.
Temporary restraining order
274
The Seventh Amendment guarantees a trial by jury in all cases where:
The claim is “at law,” and the amount in controversy exceeds $20
275
A _______ is a verdict in which the jury finds for the plaintiff or defendant, determines the damages or relief to be given, and answers specific questions of fact.
General verdict with special interrogatories
276
A court cannot grant a motion for judgment as a matter of law ("JMOL") until _______ and the court has found that _______.
The nonmoving party has been fully heard; a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue
277
A new trial may be granted when the verdict is:
Excessive, inadequate, or against the weight of the evidence
278
Under Federal Rule 41(b), _______ are grounds for a court to order an involuntary dismissal against a plaintiff.
The failure to prosecute the case, to comply with the Federal Rules, or to comply with a court order
279
Under the doctrine of issue preclusion (collateral estoppel), a judgment in a prior case will be sufficient to bind the plaintiff or defendant in subsequent actions on different causes of action as to issues that were:
Actually litigated and essential to the judgment
280
In an action where a claimant wants to use issue preclusion based on the judgment from a previous action to which claimant was not a party, a court must first find that:
1) the party against whom the judgment will be used had a fair opportunity to be heard on the critical issues; 2) the posture of the case is such that it would not be unfair or inequitable to apply issue preclusion; 3) the issue in the first case is identical to the issue in the second case; and 4) there was a final judgment.
281
May the Supreme Court hear a direct appeal from a federal district court (i.e. not a three-judge panel)?
Yes, in certain cases.
282
A state court generally must recognize the judgments of ________________ courts and federal courts generally must recognize judgments of __________ courts.
sister state; state
283
For a defendant to have such minimum contacts with the forum that the exercise of personal jurisdiction over him would be fair and reasonable, the court must find:
That he purposefully availed himself of that forum and it was foreseeable that his activities would make him amenable to suit in the forum
284
Venue is _______ in a civil action in a _______.
Proper; judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located
285
If venue is proper in the district where a suit is originally brought, is transfer to another district permitted, and if so where?
Transfer is permitted to another district where the action might have been brought, or to which all parties have consented
286
Before making initial disclosures, a party must do what?
make a reasonable inquiry into the facts of the case
287
During discovery, electronically stored information need not be produced if the responding party identifies it as:
Not reasonably accessible because of undue burden or cost
288
A partnership has franchises in states A, B, C, D and E. The partners of the firm are citizens of states A, B and C. A citizen of state D files suit against the partnership in state D federal court. Does the court have subject matter jurisdiction?
No. The citizenship of partnerships and other non-incorporated entities is determined by the citizenship of the *partners,* not the locations of its franchises.
289
A resident of state A sues resident of state B arguing breach of contract. The suit is filed in federal court, and is based on diversity of citizenship. The complaint alleges breach of contract for a contract entered into in state C and to be performed in state D. What state's law will the court apply?
State B's law. A federal court sitting in a particular jurisdiction will apply *that jurisdiction's choice of law rules* in circumstances such as these.
290
In a diversity case, when will a court not exercise supplemental jurisdiction over an additional claim brought by the plaintiff?
When the additional claim is made against an impleaded party which, if impleaded, would destroy complete diversity.
291
Parties may obtain discovery of any _______ matter that is relevant to any party’s claim or defense and proportional to the needs of the case.
non-privileged
292
During discovery, electronically stored information need not be produced if the responding party identifies it as:
Not reasonably accessible because of undue burden or cost
293
For venue purposes, a business entity defendant is deemed to reside in:
Any judicial district in which the defendant is subject to the court’s personal jurisdiction with respect to the action in question
294
When a transfer is based on the ground that venue was improper, which law applies in the transferee court?
The law of the transferee court
295
What is the alternative name for res judicata?
Claim preclusion
296
What is the alternative name for collateral estoppel?
Issue preclusion
297
Claim Preclusion —
you can only sue on a claim once. For claim preclusion to apply, cases 1 and 2 must have: 1) been brought by the same parties; 2) ended in a valid final judgment on the merits; and 3) have asserted the same claim; i.e. any right to relief from the same transaction or occurrence.
298
Issue Preclusion —
you can only litigate an issue once. For an issue to be precluded from a subsequent case, case 1 must have: 1) ended in a valid, final judgment on the merits; 2) the same issue must have been actually litigated and determined; and 3) the issue was essential to the judgment in case 1.
299
Are orders modifying, granting, or refusing preliminary or permanent injunctions final orders?
No. They may be appealed.
