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NY/ MBE Bar Study > Civil Procedure > Flashcards

Flashcards in Civil Procedure Deck (35):
0

In federal court, what are the main distinctions b/w "rule" and "statutory" interpleader?

Rule:
-stakeholder diverse fr every claimant
-more than $75,000
-venue & service of process regular

Statutory:
-1 claimant must be diverse fr other claimants
-more than $500
-venue proper where any claimant resides
-nationwide service so no p.j. issues

2

What are the 4 rules that help establish proper venue?

1. all D's reside (residence= domicile)

or

2. A substantial part of the claim arose
3. federal question case: any district where D is found
4. diversity case: any district where D is subject to p.j.

2

Who can remove a state court case to federal court? Which federal court?

-only D can remove case
-only to federal district court embracing state court where action was filed

3

What 4 conditions must be met for a state court case to be removed to federal court?

1. all D's must agree to move
2. case can only be removed if it could've been heard in federal court originally
3. must remove w/in 30 days of service of 1st removable doc
4. NO REMOVAL if any D is citizen of original forum (where action brought)

4

What are the 2 main types of supplemental jurisdiction in federal court?

1. pendent
2. ancillary

5

What is supplemental jurisdiction in federal court?

Allows court to hear claims arising out of same transaction or occurrence in a diversity suit

6

What is ancillary jurisdiction?

other than P, any other party to suit can join claims (state law) that are sufficiently related to original claim

*court will still have jurisdiction over such claims even if federal claim is later dismissed

7

What 5 types of cases will a federal court NOT hear?

1. divorce
2. alimony
3. child custody
4. probate (wills)
5. estate

8

What are the 2 types of cases federal courts have original jurisdiction over?

1. federal question
2. diversity of citizenship

9

When do federal courts have original jurisdiction over federal question cases? (2)

1. right/ interest founded substantially on federal law OR
2. P suing to vindicate a federal right

10

When do federal courts have original jurisdiction over diversity of citizenship cases? (2)

1. b/w citizens of different states OR citizen & foreign country citizen (citizenship determined by domicile)
2. amount in controversy must exceed $75k where 1 P vs 1 D

11

What is pendant jurisdiction?

court can hear P's other claims that arise fr common nucleus of operative fact or same transactional occurrence (in its discretion)

12

What is res judicata (Claim Preclusion) ?

When a claim against particular D is brought to final judgement on the merits , all other claims against that D are BARRED if they arise out of the same transaction

*even if other claim based on different theories/ seeking different remedies

13

What is collateral estoppel?

Issue preclusion avoids need to re-litigate specific fact issues that were decided in prior proceedings

14

What is the 3-part showing that must be made for collateral estoppel to apply?

1. identity of issues: issue in former proceeding & current identical
2. issues litigated& decided in former proceeding
3. party against whom issue preclusion asserted had full & far chance to litigate issue in former proceeding

15

How many people are on a civil jury?

6-12 jurors

17

What are the 2 main post-trial motions?

1. Motion for a New Trial
2. Motion to Vacate Judgment

18

When can motion for judgment as a matter of law (JMOL) be filled?

1. after P rests their case
2. after D rests their case
3. after case has been submitted to jury

19

What 4 types of information can earn a qualified privilege?

1. litigative material by non-attorneys (insurance adjuster statement)
2. witness statements
3. insurance coverage
4. accident reports

19

What are the 8 grounds for a Rule 12 pre-trial motion to dismiss?

1. documentary evidence for defense
2. other action pending b/w same parties on same c/a
3. want of capacity (infant suing w/o rep)
4. non-joiner of necessary party
5. failure to state a claim upon which relief can be granted (addresses face of pleadings)
6. affirmative defenses
7. lack of P.J. (improper commencement)
8. lack of SMJ

20

When are accident reports NOT subject to disclosure under qualified privilege?

When disclosure will interfere with criminal investigation/ prosecution

21

What are qualified privileges/ disclosures?

information generally privileged but may be required to be disclosed by court

23

What 3 conditions would cause court to require qualified privileges/ disclosures to be disclosed?

IF court...
1. finds information material
2. information can no longer be reproduced
3. information not being disclosed will result in injustice

24

What 3 types of information/ statements are given absolute privileges in terms of disclosure/ discovery?

1. self-incrimination
2. attorney work product (prepared in conn. w/ pending litigation/ product of lawyer learning)
3. attorney-client privilege

25

What is the standard of review for a summary judgment motion?

if there is no genuine issue of material fact requiring a trial, claimant is entitled to final judgment as a matter of law w/o trial

26

What is a summary judgment?

Case decision based on facts, not pleadings
*need factual affidavits from both sides

27

What are the 9 affirmative defenses that can be raised in a motion to dismiss?

1. SOL
2. payment
3. arbitration award
4. release
5. estoppel
6. res judicata (claim preclusion)
7. infancy of D
8. bankruptcy discharge
9. statue of frauds

28

What is the standard of review for a motion to dismiss for failure to state a c/a?

P entitled to every favorable inference that can be drawn from allegations in complaint (motion denied if ANY basis for relief under sub law)

29

What are the 4 grounds for a motion for a new trial?

1. irregularity in proceedings
2. misconduct by persons involved in trial (attorneys, witnesses, jurors)
3. excessive or inadequate damages
4. newly discovered evidence that could not be discovered earlier with reas. diligence

30

What are the 5 grounds for a motion to vacate judgment?

1. clerical errors
2. excusable neglect or irregularity in obtaining judgment
3. fraud
4. lack of jurisdiction
5. newly discovered evidence that could not be discovered earlier with reas. diligence

31

What must a party do during trial in order to preserve their right to move for a new trial?

Party must make an objection during trial as soon as practicable after the event serving as the basis for a new trial motion (error) has occurred.

32

What are the 2 main distinctions between a JMOL and a motion for summary judgment?

1. JMOL is made during the trial instead of before like a summary judgment motion
2. JMOL is based on the failure of one party to produce enough evidence to create reasonable issues of substance to submit to the jury

33

What is a party moving for summary judgment arguing?

That there are no genuine issues of material fact to be submitted to the trier of fact

34

When is evidence sufficient for a JMOL to be granted?

When, as a matter of law, their is no evidence or reasonable inference therefrom to sustain a verdict against the non-moving party

35

For purposes of deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim...what truth inference must the court make?

All factual allegations in the complaint are accepted as true. The motion will be granted only if P can prove no set of facts that would entitle her to the relief requested.