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Civil Procedure > CivPro > Flashcards

CivPro Flashcards

(56 cards)

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1
Q

Venue

A

Federal venue in civil actions is proper in (1) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (2) the district in which a substantial part of the events or omissions giving rise to the claim occurred.

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2
Q

Judgement as Matter of Law standard

A

reasonable people couldn’t disagree on the results (same as summary judgement)

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3
Q

Renewed Judgement as Matter of Law standard

A

after losing the trial/jury verdict; raise same claim that reasonable people could not disagree on the results

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4
Q

New Trial Standard

A

(1) judgement is against the weight of the evidence
(2) new evidence not previously discoverable
(3) improper damages
(4) misconduct

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5
Q

Review Questions of Law

A

De Novo Standard of Review; includes jury instructions

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6
Q

Personal Jurisdiction Question

A

Does the defendant have such minimum contacts with the forum state so jurisdiction does not offend traditional notions of fair play and substantive justice

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7
Q

List main factors for personal jurisdiction

A

(1) Minimum Contact (purposeful availment and foreseeability)
(2) Relatedness
(3) Fairness

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8
Q

Minimum Contacts:

A

(1) Purposeful availment (voluntary act) of the forum state
(2) Foreseeable that D would be haled into court here

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9
Q

Relatedness

A

Plaintiff’s claim relates to D’s contact with the forum state. If yes: specific JDX; if no, then general JDX

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10
Q

general jurisdiction

A

D at home in the forum
if human, then where domiciled (tag jurisdiction means personal jurisdiction over where served)
if corporation, then PPB and incorporated; need to be registered to do business there and have appointed agent

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11
Q

If specific JDX, then

A

consider “fairness”

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12
Q

Specific Jurisdiction

A

D contact caused harm to P
if D substantial contact with forum, then relatedness is satisfied if claim merely relates to D forum contact

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13
Q

Personal Jurisdiction Fairness Factors

A

(1) Defendant - would be severely prejudiced and rendered disadvantaged
(2) State’s interests (forum state, protecting its citizens etc)
(3) Plaintiff interests (i.e. was injured and can’t travel)

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14
Q

Serve Individual Process

A

Individual in the US: personal service means give to D personally anywhere

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15
Q

Substituted Service of Process

A

(1) D’s usual place of abode
(2) to someone of suitable age and discretion
(3) who resides there

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16
Q

Intervention Definition

A

bringing yourself in as a third party plaintiff or defendant

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17
Q

Intervention Types

A

“Of Right”
Permissive

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18
Q

Intervention as of Right

A

(1) absentee harmed
AND
(2) interest not adequately represented by existing necessary party

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19
Q

Permissive Intervention

A

at least one common question of law, unless including it would lead to undue delay or confusion of the issues/unnecessary complications

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20
Q

Class Actions Requirements (General Overview)

A

(1) Certify it (“And” Test”)
(a) Commonality
(b) Numerosity
(c) Typicality
(d) Adequacy of Representation

(2) Type (“OR” Test)
(a) Prejudice (avoid harm to class/non-class parties bound by judgement)
(b) Injunctive/Declaratory (not seeking Damages
(c) Common Question Predominates

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21
Q

Class Action Certification Requirements

A

(a) Commonality
(b) Numerosity
(c) Typicality
(d) Adequacy of Representation

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22
Q

CAFA Requirements

A

over 100 members, diversity between any one P and any one D, any D may remove, amount in controversy aggregate 5 mil minimum

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23
Q

Settling a Class Action

Study These Flashcards
A

certified class only settled with notice

Type 3 gets a second chance to opt out

24
Q

Class Action Types - Rights of Each

Study These Flashcards
A

no right to opt out of judgement in type 1 or 2. must notify type 3 in class to reasonably ID all class members - can opt out but will be bound by the judgement and can enter a separate appearance through the court

25
Class Certification is...
immediately appealable as a final judgement
26
What Needs to Be Included in A Complaint
(1) SMJ (2) plausible claim (heightened specificity requirement for fraud or mistake) (3) demand relief
27
D Response to Complaint
within 21 days if no waiver, or 60 days if yes waiver, D must serve either a 12 motion or an answer
28
Types of D Motions in Response to Complaint
12e - definite statement 12f - strike 12b - failure to state a claim
29
If Motion to Complaint Denied, then
D has 14 days to file their answer
30
what does D have to put in their answer
admit/deny allegations in complaint present any affirmative defenses (P doesn't need to respond to that)
31
Right to Amend (P and D)
P has a right to amend within 21 days of serving its complaint D right to amend within 21 days of serving its motion/answer
32
Right to Amend Expired
if the right has expired, then the court can grant upon motion if justice requires and no unduly delay
33
Relations Back - changing D
can change C named if (1) same T/O (2) D knowledge of the case such that able to avoid prejudice AND (3) D should've known that but for the mistake they would've been named
34
Forum Non Conveniens
when another court is the center of gravity but we cannot transfer bc it's a different judicial system (1) Factors: Public - what law applies, community burdened w jury duty, local controversy in local courts; Private - convenience, where D is and where evidence is AND (2) Adequacy - other court must be adequate - unless NO remedy, the other court is adequate
35
Forum Selection Clauses
are enforced if they're not unreasonable UNLESS public factors
36
Joinder - Generally
(1) proper SMJ (2) proper Ps and Ds - can join if same T/O AND it raises a common question (3) Necessary and Indispensable Parties
37
Joinder - Necessary and Indispensable Parties
Is absentee necessary? will force absentee in it: (1) no complete relief (2) absentee interest will be harmed (3) worried about D being bound by multiple obligations if party not joined can the absentee join? * yes if PJ over the absentee and still have SMJ * if no, then ask whether we can proceed without them - if we cannot proceed without them, then we dismiss claim and they're indispensable - if we proceed without them they're necessary consider alternative forum, likelihood of harm, and whether court can shape relief
38
Counter Claims
should be part of D's answer (response within 21 days of SOP unless waived, then 60) Compulsory: if same T/O then use it or lose it Permissive: all others are permissive (but check for SMJ)
39
Cross Claims
claim vs. co-party claims ARISING FROM SAME T/O
40
Impleader
always permissive Requirements: (1) file within 14 days of serving answer (2) file a third party complaint naming TPD (3) have that complaint formally served on TPD
41
Discovery: Medical Exam
(1) court order (2) parties only (3) health is actually in controversy (4) good cause ote: can get the doctor report but that means waiving your own dr/pt confidentiality and providing your own docs about the same affliction
42
Discovery: Request for Admission
(1) 30 days (2) deny object admit or say you don't know (3) default is admitted used to authenticate documents
43
Discovery: Request to Produce
make this document available or lemme enter this property
44
Preliminary Injunctive Relief
burden on app to show: (1) irreparable harm if not issued (2) likely to win on merits of the case (3) balance of hardship factors (4) injunction is in the public interest CAN be immediately appealed
45
Temporary Restraining Order
will issue ex parte if: (1) applicant files under oath showing if no TRO will suffer immediate and irreparable harm AND (2) certifies efforts to give oral or written notice to D AND (3) specifies details
46
Summary Judgement Rule
a party must show (1) no genuine dispute of material fact AND (2) entitled to judgement as a matter of law (viewing all evidence in favor of nonmoving party)
47
Summary Judgement Timing
within 30 days after close of discovery
48
Interlocutory Appeals
allow appeal of nonfinal order if: (1) trial judge certifies it involves a controlling issue (2) with substantial ground for difference of opinion (3) AND the court of appeals agrees to hear it
49
Collateral Order Doctrine
appellate court discretion to hear an appeal if: (1) issue is distinct from the merits (2) issue involves important legal question (3) AND the issue is essentially un-reviewable if parties await final judgement (i.e. amendment 11 immunity)
50
Standard of Review: Law
review de novo w no deference - includes jury instructions
51
Standard of Review: Fact
bench trial, then "clearly erroneous" jury trial then "reasonable people couldn't have found this"
52
Standard of Review: Discretionary
abuse of discretion (i.e. whether to give a certain jury instruction)
53
Standard of Review: Harmless error
if didn't impact outcome of the case, then no reversal
54
Claim Preclusion
VSS (1) Valid final judgement on the merits (not on the merits if it's JDX, venue, or indispensable parties) (2) Same P same D (same configuration) (3) Same Claim (majority = same T/O; minority = different for personal/property)
55
Issue Preclusion
SAFE (1) Same Issue litigated/determined in case 1 (2) Issue essential in case 1 (3) Actually litigated (4) Final Judgement on the merits (5) Asserted Against someone who was a party in case 1 (6) Defensive: not a party in case 1, but is a D in case 2; Offensive: not anything in case 1, but is a plaintiff in case 2 -- then consider fairness factors:
56
Issue Preclusion Fairness Factors
(a) party bound had full and fair opportunity to litigate in case 1 (b) party to be bound has strong incentive to litigate in case 1 (c) party could've easily joined case 1 (d) no inconsistent findings on this issue

Civil Procedure (1 decks)

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