Cram.com Flashcards
(142 cards)
1
Q
What is Subject Matter Jurisdiction?
A
Court’s power to hear a specific case.
2
Q
What is personal jurisdiction?
A
Court’s power over a party to the action or a party’s property.
3
Q
What does venue concern?
A
Proper placement of case within judicial system
4
Q
What are the two basic questions to determine if a court has subject matter jurisdiction?
A
- Whether type of case or relief sought requires case to be filed in a particular court or courts.
- If no, what is the amount in controversy.
5
Q
What is the amount in controversy?
A
Amount prayed for by plaintiff.
6
Q
What are the limits for justice courts?
A
$10K
7
Q
What are the limits for Constitutional County courts?
A
$200.01 to $10K
8
Q
What are the limits for County Courts at Law?
A
$200.01 to $100K
9
Q
What are the limits for District Courts?
A
Greater than $500, no upper limit.
10
Q
What are the formal requirements for a petition?
A
- The names of the parties and their residences.
- Cause of action
- If unliquidated damages, statement that damages w/in limits of court.
- Demand for judgment for all other relief deemed entitled.
- Signed by party or atty
11
Q
What is the effect of a pretrial amended pleading?
A
Supersedes the prior pleading and must be complete in and of itself.
12
Q
At what point before trial must a party obtain leave to amend a pleading?
A
Seven days.
13
Q
When should leave be granted to file a trial amendment (pleading)?
A
Should be granted unless defendent can prove surprise or prejudice.
14
Q
What is a purpose of a supplemental pleading?
A
To reply to a defendant’s defense. It adds but does not supersede the last pleading.
15
Q
What is required for a verified pleading on a sworn account
A
- An itemized statement of the goods or services sold.
- Reveal offsets to the account.
- Be supported by an affidavit stating that the claim is just and true and within the affiant’s knowledge.
16
Q
What does a defendent file to defend against a verified pleading on a sworn account?
A
A written denial under oath.
(This applies when: an action is founded on an open account on which a systematic record has been kept and is supported by an affidavit;
account taken as prima facie evidence of the claim).
17
Q
How do you establish your right to an injunction?
A
Plead and prove:
- Probable right to relief
- Probable injury
- Harm is immiment
- Without injunction, harm will be irreparable.
- No adequate remedy at law.
18
Q
What is required for a temporary restraining order?
A
- Application must be verified.
2. Party obtaining a TRO must post bond in favor of the adverse party.
19
Q
What are the two issues to be considered for personal jurisdiction?
A
- Whether there is a sufficient basis for the exercise of jurisdiction;
- Whether the defendant has received notice.
20
Q
What are four adequate grounds for personal jurisdiction?
A
- Phyiscal presence
- Domiciliary of state
- Consent
- Minimum contacts.
21
Q
What are the three elements of the minimum contacts test?
A
- Must PURPOSEFULLY do some act or txn in Texas.
- Cause of action must arise from or be connected with this act.
- Must not offend traditional notions of fair play and substantial justice.
22
Q
How is personal service accomplished?
A
Personal delivery
Registered/certified return receipt mail
23
Q
What other means of service are there?
A
- Substitute service
- Citation by publication
- Service on corporation
24
Q
What are the elements of the long-arm statute? (Note - can just use mail. TRCP R. 108)
A
- D must be nonresident
- Have no regular place of business in TX
- Have no registered agent in TX
- Have been doing business in TX.
25
How does the Statute of Limitations work with service of process?
P must exercise actual diligence for SOL to be tolled.
26
How many days does D have to respond to service? Federal?
1. 10:00 a.m. on the first Monday after the expiration of 20 days.
2. 20 days.
27
When must a special appearance be filed?
| What happens if done otherwise?
1. Before any other plea, pleading, or motion by the defendant.
2. Consents to jurisdiction. Exception - discovery does not waive it.
28
What must a special appearance assert?
1. Should assert that D is not amenable to service of process and deny allegations.
2. Be verified.
29
Where may lawsuits be brought? (Venue)
1. In the county in which all or a substantial part of the events or omissions giving rise to the claim occurred.
2. County of D's residence
3. D's principal office.
4. If none of the above, in the county where P permanantly resides.
30
Where there are multiple defendants, where is venue proper?
Wherever it is proper for any one defendant.
31
What are the two permissive venue exceptions to know?
1. Consumer good warranty breach - action may be brought in county of P's residence at time cause accrued.
2. Suit on written K can be brought in county where D is to perform.
32
When must a motion to TRANSFER venue be filed?
Before any other plea or pleading other than a special exception.
33
If there are multiple defendants, and one files a pleading other than an Motion to Transfer Venue, may the others still file a MTV?
Yes.
34
What must a Motion to Transfer Venue assert?
1. That the action should be transfered to another specified county of proper venue.
2. That the current county is not proper or that venue is more convenient in another county.
3. Legal and factual basis for the transfer.
4. Request a transfer to a specific county.
35
Who has the burden of proof on a Motion to Transfer Venue?
Defendant.
36
What must accompany a Motion to Transfer Venue?
Supporting affidavits.
37
Does a Motion to Transfer Venue need to be verified?
No.
38
How much notice is required for a Motion to Transfer Venue?
45 days, except on leave of court.
39
When must a plaintiff file a response to a Motion to TRANSFER Venue?
At least 30 days prior to the hearing on the motion to transfer venue.
40
What is required for a Motion to CHANGE venue?
1. D's affidavit and affidavits of three credible persons who are residents of the county of suit.
2. Affidavits must assert that there is such a prejudice against the D such that he cannot obtain a fair and impartial trial.
41
When may a Motion to Change Venue be filed?
At any time.
42
What is the purpose of a Motion to Quash?
To challenge defective jurisdictional allegations or defects in service of process.
43
If the Motion to Quash is granted, does the Defendent need to be re-served?
No.
44
What is the purpose of a Plea in Abatement?
To challenge P's pleadings by alleging facts arising outside the petition that justify the suspension or dismissal of the case.
45
What is a Plea in Abatement based upon?
1. A defect in the parties (such as capacity, non-joinder, improper party)
2. A defect in the petition's allegation (such as another action pending)
46
How does one object to a plaintiff's or defendant's pleading?
Special Exceptions
47
What are special exceptions based upon?
Defects of Substance or Form.
48
What must a defendent state in a general denial?
Defendant denies each and every allegation in plaintiff's original petition.
49
What does a defendant file to challege a plaintiff's assertion that a condition precedent has been performed or has occurred?
Special Denial.
50
What are the four affirmative defenses that must be verified?
1. Denial of plaintiff's properly filed sworn account action.
2. Denial that D is a partnership or corporation.
3. That there is another suit pending in TX with same parties and cliam.
4. That there is a defect of the parties.
51
What is an affirmative defense?
Any matter that provides an independent reason that will totally or partially bar the plaintiff from recovering, even if the allegations are true.
52
When can a case be removed to Federal court?
Only if the case could have been filed in federal court originally.
53
To whom is removal to federal court available?
Only the defendant. If multiple defendants, all must join in the removal.
54
What are the requirements of diversity of citizenship?
1. Parties must be diverse.
| 2. Must be sufficient amount in contoversy ($75K).
55
What diversity of citizenship is required for removal?
Complete diversity. Each plaintiff must be diverse from each Defendant.
56
How is citizenship determined for individuals?
Domicile.
57
How is citizenship determined for Corporations?
State of incorporation AND state of principle office (nerve center or primary place of activity.
58
If there is complete diversity of citizenship, and at least one Defendant is a citizen of the forum state, may they be removed.
No.
59
What is the time limit for removal under diversity of citizenship?
One year from commencement of action.
60
What are the steps for removal?
1. D must file verified notice of removal in Federal Court
2. Notice must contain short statement of why case can be removed.
3. Must be filed within 30 days after state service.
4. Give written notice to all adverse parties and file with state court.
61
If the Dedendant di not file an answer in state court before filing notice of removal, when must D file answer in Federal Court?
1. Within 20 days after receipt of initial state court pleading, or
2. Within 5 days after filing the notice of removal, whichever pleading period is longer.
62
How does a Plaintiff challenge a defendant's removal?
By filing a motion to remand to state court.
63
What must a Plaintiff allege in a motion to remand?
That the case could not have been originally brrought in Federal Court, or
There is a defect in removal procedure.
64
When must a motion to remand be filed?
Within 30 days if based upon defect in procedure, at any time before final judgment otherwise.
65
When may the PLAINTIFF use permissive joinder of claims?
Against a single Defendant, even if causes of action are unrelated.
66
When may the DEFENDANT use permissive joinder of claims?
When setting forth counterclaims.
67
What is necessary for a counterclaim to be compulsory?
1. Be within the jurisdiction of the court;
2. Not be the subject of a pending action'
3. Arise out of the same transaction or occurence;
4. Be a claim that the pleader has at time of filing;
5. Not require the presence of third parties over whom the court has jurisdiction.
68
What happens if a compulsory counterclain is not asserted?
Its subject matter will be barred.
69
When may a permissive counterclaim be filed?
In the same suit or in a second suit against the plaintiff.
70
What is a crossclaim?
A claim by one party against a co-party.
71
What must a crossclaim arise out ot?
The same transaction or occurence that is the subject of the original action.
72
Are crossclaims permissive or compulsory?
Gernerally, permissive.
73
When is a severance proper?
When the controversy involves multiple claims, one of which could be asserted in a separate suit and does not involve the same facts and issues in the other claims.
74
When is a bifurcated trial ordered?
When ther are distinct and complex issues that, if tried together, might create confusion of the jury.
i.e. claims for both actual and punitive damages.
75
What are the requirements for permissive joinder of parties?
1. Claim for or against the party is asserted jointly, severally, or in the alternative;
2. Claims asserted arise out of the same transaction or occurrence;
3. There are common questions of fact and law.
76
What may the defendant do when he believes a third party is at fault?
File a Third Party Claim alleging that the third party is liable for all or part of the original claim.
77
What is the procedure for a third party claim?
File within 30 days after serving orignial answer; or
Obtain leave on motion stating the claim,
the basis,
the relationship to the primary claim.
2. Give notice to all the parties.
78
What is a common example of compulsory joinder of parties?
When there are persons who have a joint interest in the subject matter of the lawsuit, but are not parties.
79
What is the purpose of the Motion to Intervene?
Allows a party to voluntarily seek to become a party in the suit to protect his own rights.
80
What are the first class of requirements to certify a class action?
1. The class is so numerous that joinder of all parties is impractical
2. Questions of law or fact common to the class
3. Claims or defenses of the representative parties are typical
4. Representative parties will fairly and adequately represent the interests of the class.
81
What are the second class of requirements to certify a class action?
One of the following three:
1. Prosecution of separate actions would create risk of inconsistent adjudication.
2. Party opposing the class has acted or refused to act on grounds generally applicable to the class.
3. Court finds that common questions of predominant and class action is superior to other methods.
82
What is discoverable?
Any matter that is not privileged and is relevant.
83
Is it a ground for objection that the evidence will be inadmissible at trial?
No, if the information appears reasonably calculated to lead to the discovery of admissible evidence.
84
Must trial witnesses be disclosed?
Yes.
85
Must impeacment or rebuttal trial witnesses be disclosed?
No, must show good cause for non-disclosure or that the opposing party will suffer no prejudice or surprise.
86
What documents or tangible things must be produced upon request?
Anything that is within person's possession, custody or control.
87
What are the three classifications of experts?
1. Testifying;
2. Consulting (Reviewed consulting);
3. Purely Consulting (Non-Reviewed Consulting)
88
What is not discoverable; regarding a purely consulting expert?
NON-DISCOVERABLE
89
What information is discoverable for a testifying expert?
Name, address, telephone number,
Subject matter of the testimony,
Facts which relate to or form the basis of mental impressions and opinions
Mental impressions and opinions made in connection w/case
Evidence of bias
Current resume/bibliography
Work product (reports, models, Documents)
90
What discovery form is available for a testifying expert?
Request for Disclosure
Oral Depositions
Court-ordered reports
91
What information is discoverable for a reviewed consulting expert?
Discoverable ONLY if testifying expert reviewed his work.
Name, address, telephone number,
Subject matter of the testimony,
Facts which relate to or form the basis of mental impressions and opinions
Mental impressions and opinions made in connection w/case
Evidence of bias
Current resume/bibliography
Work product (reports, models, Documents)
92
What discovery form is available for a reviewed consulting expert?
Discovery Forms:
All except:
Request for Disclosures
Court-ordered reports
93
What are the time limits to respond to requests for disclosure regarding experts?
Parties seeking affirmative relief 90 days before end of discovery period.
Other parties 60 days.
94
When must a party seeking affirmative relief make their experts available for deposition?
Reasonably promptly after designation UNLESS a report concerning expert opinions and observations is provided.
95
What is work product?
Any material prepared, mental impressions developed or communications made in anticipation of litigation or trial by a party or its representatives.
Privilege is perpetual.
96
Who are the party's representatives?
```
Lawyers
Consultants
Sureties
Indemnitors
Insurers
Employees
Agents
```
97
Core Work Product
```
Attorney or attorney's representatives
Mental impressions
Opinions
Conclusions
Legal theories & not discoverable
It is Absolutely privileged
```
98
All Other Work Product
Discoverable only upon showing a substantial need of materials and requesting partry is unable w/o due hardship to obtain a substantial equivalent by other means.
Conditionally privileged
99
What is Attorney Client privilege?
Covers confidential communications (oral and written) between an attorney or attorney's representative and client for the purpose of providing legal services.
100
What is the first step to claim privilege as a basis for refusing to respond to interrogatories?
Withholding Statement
1. States that information withheld
2. For which request withheld
3. Privilege asserted.
101
What is a withholding statement?
1. States that information withheld
2. For which request withheld
3. Privilege asserted.
102
What is the second step to claim privilege as a basis for refusing to respond to interrogatories?
Response
| The party seeking discovery may request that the withholding party identify the information withheld.
103
What is the third step to claim privilege as a basis for refusing to respond to interrogatories?
Privilege Log -
within 15 days withholding party must
1. Describe information or materials withheld;
2. Assert a specific privilege
3. Establish a prima facia case for privilege by testimony or affidavit.
104
Who has the burden to prove the validity of objections to interrogatories based upon privilege?
The objecting party.
105
If a court orders answers that a party believes privilege, what should the party do?
Seek a Writ of Mandamus.
106
If a Defendant inadvertently discloses privileged information, is the privilege waived?
No, as long as within 10 days of discovering that the production was made, the amend the response and state the privilege.
SNAP BACK
107
How does one object to discovery?
1. Make objection in writing within time for response (otherwise objection waived).
2. State legal or factual basis for objection
(Must be good faith.
108
Why would a party seek a protective order in discovery?
To ask that the tdiscovery be limited in the interest of justice to protect from undue burden unnecessary expense, harassment or annoyance.
109
What are the time limits for supplementing discovery?
1. Must do so reasonably promptly, not less than 30 days before trial. Otherwise presumed not reasonably prompt.
110
What is a level 1 discovery plan?
Duration begins when suit filed, ends 30 days before trial.
No more than 6 hours deposition time, can agree to expand up to 10 hours
No more than 25 interrogatories.
111
What is the ceiling for relief for a Level 1 plan?
$50K
112
What is the duration of a Level 2 plan?
Starts when suit filed.
Continues until the earlier of 30 days before trial or 9 months after the earlier of the date of first depo or due date of first response to discovery.
113
What are the depo limits of a Level 2 plan?
No more than 50 hours for opposing parties, their experts and people under their control
Plus 6 hours for every expert beyond 2
No limit for parties not under control.
114
Whar are the interrogatory limits under Level 2 plan?
25,
including all discrete subparts
excluding roggs asking a party to identify or authenticate specific docs.
115
If time limit for depo has expired what may a party or witness do?
Suspend the depo.
116
When does a Level 3 plan apply?
When a court orders it (on motion or sus sponte)
117
What are 4 types of information that may be obtained using a Request for Disclosure?
1. Correct names of parties
2. Names, addresses and telephone numbers of potential witnesses.
3. Legal theories and general factual basis of responding party's claims or defenses.
4. Amount and method of calculating damages
5. Witness statements
6. Settlement agreements.
118
What are the means by which a party must respond to a Request for Disclosure?
Plaintiff
Within 30 days after service of the request.
Defendant:
30 days,
50 days - if Defendant was served with requests before answers was due.
119
What is the purpose of a Request for Production?
30 days, except 50 days for Defendant if served before answer due.
120
Production of a document authenticates a document for use against a producing party except.
When the producing party objects within 10 days after receiving knowledge the document will be used.
121
What limits exist on testing items produced?
Item may be obtained but may not be destroyed or materially altered unless authorized by the Court.
122
What should be filed to gain entry onto property?
A Request for Production or a Motion for Entry. Standard response times (30 days/50 for Def. before answer due).
123
What are interrogatories?
Written questions to a party in the suit
| Answers must be used only against that party Must be signed under oath.
124
What are Requests for Admission?
Requests that other party admit the truth of any matter within the scope of discovery.
125
How must a responding party answer admissions?
Specifically admit or deny or explain in detail reason why request cannot be admitted or denied.
126
What are the limits for responses to admisisons?
The 30/50 rule.
| Untimely responses are deemed admitted.
127
What are the effects of admissions?
A matter admitted is conclusively established as to the party making the admission.
128
May a party withdraw admissions?
By leave of court, if the party shows good cause and the court finds parties relying on the admission will not be unduly prejudiced.
(Applies to both actual and deemed admissions).
129
When must notice of intent to take an oral deposition be served?
Within a reasonable time before it is to be taken.
130
What must a notice of intent to take a deposition contain?
1. The county of the deponent's residence.
2. The county where the deponent is employed.
3. The county where the deponent was served with the subpoena.
4. If a party, where suit is filed.
131
When is appearance required for a deposition?
When the county of appearance is not more than 150 miles from where the person resides or is served.
132
When is a subpoena required for a deposition?
Person is a non-party witness.
| Otherwise the notice has the effect of a subpoena.
133
May a subpoena for deposition also compel production of documents or things at the deposition?
Yes
| Same rules as Request for Production.
134
What must a deponent do if they object to the Request to Produce Tangible things?
File a Motion to Quash or a Motion for Protective Order.
135
May a deposition be taken by alternative means?
Yes, if party gives reasonable notice.
136
What other ways may a deposition be taken?
By electronic or telephonic
137
What are the only three objectionsn proper at a deposition?
Objection Form;
Objection Leading;
Objection, Non-Responsive.
138
When may an attorney confer with a witness during a deposition?
Only to identify a privilege to be protected.
139
When may an attorney instruct a witness not to answer during a deposition?
Only if necessary to preserve privilege
Comply with Court Order; or
to protect witness from abusive question or
question that requires a misleading answer.
No other grounds.
140
May a deposition be taken before suit is filed?
Yes by Filing a Petition for Deposition Before Suit.
141
What must a Petition for Deposition Before Suit allege?
1. Anticipation of a suit
2. Subject matter of suit and petitioner's interests
3. Names and contact information of persons expected to be adverse.
142
Who pays the fee of an opposing party's expert witness at a deposition?
That party that hired the expert.
