Fill in the Blank Exam Flashcards
(136 cards)
1
Q
Personal jurisdiction requires that the defendant be _____ to the forum state’s jurisdiction, and that the defendant be ______.
A
Personal jurisdiction requires that the defendant be amenable to the forum state’s jurisdiction, and that the defendant be served with proper notice.
2
Q
Amenability to personal jurisdiction is governed by ______, subject
to the limits of the ______ of the United States Constitution.
A
Amenability to personal jurisdiction is governed by the forum state’s law, subject
to the limits of the due process clause of the United States Constitution.
3
Q
Pennoyer v. Neff described three bases for state jurisdiction over persons and things. What are they?
A
In personam: jurisdiction over the person
In rem: jurisdiction over interests in property
Quasi in rem: jurisdiction over seized property, where plaintiff’s claim is unrelated to the seized property.
4
Q
Is quasi in rem jurisdiction constitutional?
A
Quasi in remi jurisdiction is arguable unconstitutional after Shaffer v. Heitner
5
Q
Pennoyer based its jurisdictional formula on ______ over persons and property within its borders
A
Pennoyer based its jurisdictional formula on state power over persons and property within its borders
6
Q
Under Pennoyer’s in personam jurisdiction, a judgment in plaintiff’s favor…?
–would be _____ in all states
–for the ______ of damages
–may be _____ until fully collected
A
–would be binding in all states
–for the full amount of damages
–may be enforced repeated until fully collected
7
Q
Under Pennoyrer’s quasi in rem jurisdiction, a judgment in plaintiff’s favor
- entitles plaintiff to the _______
- is not a ______
- is not ______
- may not be enforced _______
- may not be enforced ________
A
- entitles plaintiff to the property attached for jurisdiction
- is not a personal judgment
- is not enforceable against any other property
- may not be enforced more than once
- may not be enforced outside the forum
8
Q
Another type of jurisdiction discussed in Pennoyer is ____, which involves the state’s authority to adjudicate such matters as divorce, adoption, citizenship and mental competence
A
Another type of jurisdiction discussed in Pennoyer is status, which involves the
state’s authority to adjudicate such matters as divorce, adoption, citizenship and
mental competence.
9
Q
_________ altered Pennoyers rule for personal jurisdiction, replacing the concept of _____ with the new standards of ______ and ______ provided by the “minimum contacts test”
A
International Shoe Co. v. Washington altered Pennoyer’s rule for personal
jurisdiction, replacing the concept of state power with the new standards of
reasonableness and fairness provided by the “minimum contacts test.”
10
Q
The current test for amenability, following International Shoes and other cases, does not require the minimum contacts test if the defendant satisfies any one of the four “traditional” bases for in personam jurisdiction. Those bases are
A
Residence in the forum state
Consent to jurisdiction
Waiver of objection to jurisdiction
Physical presence in the forum when served
11
Q
Consent to jurisdiction has two forms, ____ consent and ____ consent. ____ are an example of express consent, and _____ are an example of implied consent
A
Consent to jurisdiction has two forms, express consent and implied consent. Forum
selection clauses are an example of express consent, and non-resident motorists
statutes are an example of implied consent.
12
Q
If none of the traditional bases are present, a state may only exercise in personam jurisdiction over defendants who have minimum contacts with the state. The two categories of minimum contacts are _____ and _____
A
If none of the traditional bases are present, a state may only exercise in personam
jurisdiction over defendants who have minimum contacts with the state. The two
categories of minimum contacts are specific jurisdiction and general jurisdiction.
13
Q
______ is where the lawsuit arises from or relates to the nonresident defendant’s contacts with the forum state. ____ is where the lawsuit is unrelated to the nonresident defendant’s contacts with the forum state
A
Specific jurisdiction is where the lawsuit arises from or relates to the nonresident
defendant’s contacts with the forum state. General jurisdiction is where the lawsuit
is unrelated to the nonresident defendant’s contacts with the forum state.
14
Q
Specific jurisdiction has four contacts tests, which are that the defendant
A
a. purposefully availed itself of the benefits and protections of forum law;
b. should have foreseen that its activity would subject it to jurisdiction in the
forum state;
c. could reasonably anticipate being haled into court in the forum state;
d. placed its product in the stream of commerce and could foresee that it
would be used in the forum state.
15
Q
General jurisdiction has one contact test, which is that defendant’s contacts are so
________ as to render it ________ in the forum state.
A
General jurisdiction has one contact test, which is that defendant’s contacts are so
continuous and systematic as to render it essentially at home in the forum state.
16
Q
If the defendant has no contacts with the forum (and does not meet one of the four
traditional bases of jurisdiction), then there is ___________ over that
defendant. If, on the other hand, defendant does have specific or general contacts,
then the court must consider the ____________ test. This is a
_______ test with five factors, which are:
—______
—_____ interest in convenient and effective relief
—____________
—the _________ in furthering fundamental social policies
—the ________ in effective resolution of controversies
A
If the defendant has no contacts with the forum (and does not meet one of the four
traditional bases of jurisdiction), then there is no personal jurisdiction over that
defendant. If, on the other hand, defendant does have specific or general contacts,
then the court must consider the fair play and substantial justice test. This is a
balancing test with five factors, which are:
—burden on the defendant
—plaintiff’s interest in convenient and effective relief
—the forum state’s interest
—the shared interests of several states in furthering fundamental social policies
—the judicial system’s interest in effective resolution of controversies
17
Q
the due process requirement for notice to defendant is stated in Mullane v. Central Hanover. Notice is constitutionally sufficient if it is “__________, under all circumstances, to apprise _____ parties of the pendency of the action, and afford them an __________ and __________.”
A
The due process requirement for notice to defendant is stated in Mullane v. Central
Hanover. Notice is constitutionally sufficient if it is “reasonably calculated, under
all circumstances, to apprise interested parties of the pendency of the action, and
afford them an opportunity to appear and present objections.”
18
Q
An abbreviated version of the Mullane notice rule is that ______ requires _____ and an _______
A
An abbreviated version of the Mullane notice rule is that due process requires
notice and an opportunity to be heard.
19
Q
Which rule of the Federal Rules of Civil Procedure deals with initially notifying the defendant of the lawsuit?
A
Rule 4
20
Q
Under Fed. R. Civ. P. 4(e), in addition to service under state law, the means of
service on a competent adult are:
a. _______ to defendant;
b. leaving copies at ________ with a person of ____________;
c. serving defendant’s ________.
A
Under Fed. R. Civ. P. 4(e), in addition to service under state law, the means of
service on a competent adult are:
a. personal delivery to defendant;
b. leaving copies at defendant’s dwelling with a person of suitable age and
discretion;
c. serving defendant’s appointed agent.
21
Q
In most cases, the federal method of service on defendants outside the district is by the _______ statute of the state in which the federal court sits.
A
In most cases, the federal method of service on defendants outside the district is by
the long arm statute of the state in which the federal court sits.
22
Q
The purposes of venue rules are:
(a) _______ to defendant
(b) ________ of caseload within the forum state
A
The purposes of venue rules are:
(a) fairness to defendant
(b) geographic allocation of caseload within the forum state
23
Q
The federal statute for general venue provisions is __________.
A
The federal statute for general venue provisions is 28 U.S.C. § 1391.
24
Q
The purpose of forum non conveniens is to move_______
based on fairness and convenience.
A
The purpose of forum non conveniens is to move cases from one forum to another
based on fairness and convenience.
25
Subject matter jurisdiction refers to the court's authority to adjudicate based on the
_______ and in some cases, _________.
Subject matter jurisdiction refers to the court's authority to adjudicate based on the
type of case and in some cases, the dollar amount in controversy.
26
Under Article III, federal courts have subject matter jurisdiction over two primary
types of cases:
—_________
—_________
Under Article III, federal courts have subject matter jurisdiction over two primary
types of cases:
—federal question
—diversity of citizenship
27
The statute dealing with general federal question jurisdiction is _________.
It provides that federal courts have jurisdiction over any civil action _________ of the United States.
The statute dealing with general federal question jurisdiction is 28 U.S.C. § 1331.
It provides that federal courts have jurisdiction over any civil action arising under
the Constitution, laws, or treaties of the United States.
28
In addition to the general federal question provisions in 28 U.S.C. § 1331, there are
specific statutes on federal question jurisdiction, including actions against (name
three): ____, ____, ____, ____, ____, _____, and
________.
In addition to the general federal question provisions in 28 U.S.C. § 1331, there are
specific statutes on federal question jurisdiction, including actions against (name
three): foreign states, admiralty, patents, civil rights, consuls, internal revenue, and
United States as plaintiff or defendant.
29
Diversity jurisdiction is covered by ______. That statute provides that federal courts have subject matter jurisdiction over claims between _______, or between ____ and _____, where the amount in controversy ______.
Diversity jurisdiction is covered by 28 U.S.C. § 1332. That statute provides that federal courts have subject matter jurisdiction over claims between citizens of different states, or between state citizens and foreign citizens, where the amount in controversy exceeds $75,000.
30
Although the Constitution requires ____ diversity, 28 § U.S.C. 1332 requires ______. That means that all plaintiffs must have different citizenship than all defendants.
Although the Constitution requires only partial diversity, 28 U.S.C. § 1332 requires
complete diversity. This means that all plaintiffs must have different citizenship
than all defendants.
31
For diversity purposes, a corporation has two citizenships, which are:
a. _______
b. _______
For diversity purposes, a corporation has two citizenships, which are:
a. state of incorporation
b. principal place of business
32
A corporation's principal place of business is defined as its _____
A corporation's principal place of business is defined as its nerve center
33
For diversity purposes, partnerships have the citizenship of _____.
For diversity purposes, partnership shave the citizenship of all the partners
34
Under the St. Paul Mercury test, the amount in controversy is determined by plaintiff's _____.
Under the St. Paul Mercury test, the amount in controversy is determined by plaintiff's good faith pleading
35
In achieving the amount in controversy, may Plaintiff aggregate (answer "yes" or "no"):
A. all of plaintiffs claims against one defendant?
B. alternate theories of recovery for the same wromg?
C. claims of different plaintiffs?
D. claims against different defendants?
A. yes
B. No
C. No
D. No
36
In some cases, a related claim that lacks diversity or federal question jurisdiction may be includes. This is called ________.
supplemental jurisdiction
37
Federal courts traditionally abstain from ____, ___, and _______.
Federal courts traditionally abstain from family law, probate, and state criminal proceeding
38
If plaintiff has filed his action in state court, and jurisdiction is proper in federal court, defendant may remove the case to federal court. This is done by filing a ________ in federal court, attaching a copy of ______ and _____ to the state court and all parties.
If plaintiff has filed his action in state court, and jurisdiction is proper in federal court, defendant may remove the case to federal court. This done by filing a notice of removal in federal court, attaching a copy of all state court pleadings and giving notice to the state court and all parties
39
If there is a _________ defect in the removal, the case must be remanded to state court no matter when the objection is made
If there is a jurisdiction defect in the removal, the case must be remanded to state court no matter when the objection is made
40
If there is a _____ defect in the removal, the case must be remanded to state court if a ________.
If there is a procedural defect in the removal, the case must be remanded to state court if a proper and timely objection is filed
41
State court subject matter jurisdiction is governed by ______.
state law
42
In state courts, subject matter jurisdiction is designated by ____ and/or _____.
In state courts, subject matter jurisdiction is designated by type of case and/or dollar amount.
43
Federal courts have _____ jurisdiction over patent claims. Federal and state court share _______ jurisdiction over ________.
Federal courts have exclusive jurisdiction over patent claims, Federal and state court share concurrent jurisdiction over federal civil rights actions.
44
A court has ___ jurisdiction if it is the required forum at the beginning of the case, A court has ______ jurisdiction if it may adjudicate a case only after it has been heard in a lower court
A court has original jurisdiction if it is required forum at the beginning of the case. A court has appellate jurisdiction over appeals from Texas state agency decisions.
45
A federal district (trial) court has _____ jurisdiction over appeals from federal administrative agency decisions.
A federal district (trial) court has appellate jurisdiction over appeals from federal administrative agency decisions
46
Under Pennoyers in rem jurisdiction, a judgment in favor of plaintiff
- affects ______ in res (both parties and nonparties to the lawsuit)
- does not result in a ______
- does not require ________ outside the forum
Under Pennoyers in rem jurisdiction, a judgment in favor of plaintiff
- affects everyone's interests in a res
- does not result in a money judgment
- does not require enforcement outside the forum
47
In most cases, the federal method of service on defendants outside the district is by the ____ statute of the state in which the federal court sits
In most cases, the federal method of service on defendants outside the district is by the long arm statute of the state in which the federal court sits.
48
The Rules of Decision Act provides that "the _____, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as ______ in civl actions in the courts of the United States, in cases where they apply."
The Rules of Decision Act provides that "the laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply."
49
____ interpreted the Rules of Decision Act to require federal courts to apply the ______ in cases where state law applied
Swift v. Tyson interpreted the Rules of Decision Act to require federal courts to apply the general American common law in cases where state law applied.
50
Erie Railroad Co. v. Tompkins reversed Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply _________________.
Erie Railroad Co. v. Tompkins reversed Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply the law of the state in which that federal court sits.
51
__________ coined the "______________," which provides that the _____ Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.
Guaranty Trust v. York coined the “outcome determinative test,” which provides that the Erie Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.
52
_________ modified the _________, holding that the court should __________ in the case to determine which interests were stronger. _____ further held that one factor of the balancing test is whether the state law in question is ___________ outcome determinative. Thus, Byrd gives more importance to ______ that absolutely change the outcome of the case.
Byrd v. Blue Ridge modified the outcome determinative test, holding that the court should balance state and federal interests in the case to determine which interests were stronger. Byrd further held that one factor of the balancing test is whether the state law in question is absolutely or definitively outcome determinative. Thus, Byrd gives more importance to state laws that absolutely change the outcome of the case.
53
To determine the content of state law in federal court, the Erie Doctrine directs that the court give binding authority to state statutes and decisions from the state's_______. Persuasive (but not binding) authority is found in lower state _______ and ________. Erie also allows courts to make an ______ as to state law.
To determine the content of state law in federal court, the Erie Doctrine directs that the court give binding authority to state statutes and decisions from the state's highest court. Persuasive (but not binding) authority is found in lower state appellate courts and federal court opinions on state law. Erie also allows courts to make an educated guess as to state law.
54
The Rules Enabling Act (28 U.S.C. § 2072) provides the United States Supreme Court may enact the __________, provided that no rule may _________ any substantive right.
The Rules Enabling Act (28 U.S.C. § 2072) provides the United States Supreme Court may enact the Federal Rules of Civil Procedure, provided that no rule may abridge, enlarge or modify any substantive right.
55
The most prominent Rules Enabling case is _________, which resolves the conflict between the Rules Enabling Act and the ________.
The most prominent Rules Enabling case is Hanna v. Plumer, which resolves the conflict between the Rules Enabling Act and the Erie Doctrine
56
Hanna v. Plumer also introduced the concept of the “twin aims of Erie,” which are to (1) discourage ________, and (2) avoid the _______.
Hanna v. Plumer also introduced the concept of the “twin aims of Erie,” which are to (1) discourage forum shopping, and (2) avoid the inequitable administration of the laws.
57
Choice of law is the process by which courts deter mine which ________ law will be applied in a case.
Choice of law is the process by which courts deter mine which state’s or nation’s law will be applied in a case.
58
Choice of law rules may be _____ or ________.
Choice of law rules may be statutory or common law.
59
One example of a common law choice of law rule is the Texas case of Duncan v. Cessna, which holds that Texas courts will use the “___________” to choose the governing law. This rule applies except where there is a _________, or where the action is based on contract that contains a __________.
One example of a common law choice of law rule is the Texas case of Duncan v. Cessna, which holds that Texas courts will use the “most significant relationship test” to choose the governing law. This rule applies except where there is a statutory choice of law rule, or where the action is based on contract that contains a valid choice of law clause.
60
In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules of _________.
In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules of the state in which the federal court sits.
61
In federal court, Plaintiff's initial pleading is called a _____ It must contain:
a. an allegation of _______
b. a short and plain _______ showing that the pleader is ______
c. a demand for the _______
In federal court, Plaintiff's initial pleading is called a complaint. It must contain:
a. an allegation of subject matter jurisdiction
b. a short and plain statement of the claim showing that the pleader is entitled to relief
c. a demand for the relief sought
62
In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the United States Supreme Court held that a properly-stated claim must “contain sufficient ________, accepted as true, to state a claim for relief that is _______."
In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the United States Supreme Court held that a properly-stated claim must “contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.”
63
In federal court, defendant's answer must respond to each paragraph of plaintiff's complaint with one of the following:
a. _____
b. _____
c. statement that defendant ______
In federal court, defendant's answer must respond to each paragraph of plaintiff's complaint with one of the following:
a. admission
b. denial
c. statement that defendant lacks sufficient knowledge to respond
64
In addition to the foregoing, defendant may plead ______. If defendant fails to plead these, they are _____. Name three examples:
— contributory negligence
— assumption of risk
— fraud
— statute of limitations
— discharge in bankruptcy
— estoppel
— failure of consideration
— payment
— release
— res judicata
— statute of frauds
65
F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a _______, and that the pleading is (1) not being presented for any ______; (2) ______ or a ______ for the extension, modification, or reversal of existing law or the establishment of new law; (3) supported by evidence, or will likely be after a reasonable opportunity for discovery. _____ must be warranted on the evidence or based on a reasonable lack of information or belief.
F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a reasonable inquiry, and that the pleading is (1) not being presented for any improper purpose; (2) warranted by existing law or a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) supported by evidence, or will likely be after a reasonable opportunity for discovery. Fact denials must be warranted on the evidence or based on a reasonable lack of information or belief.
66
If plaintiff's initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a _______ under F.R.C.P. 12(e). This must be filed ____ the Answer.
If plaintiff's initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a Motion for More Definite Statement under F.R.C.P. 12(e). This must be filed before the Answer.
67
Defendant may use a _______ under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.
Defendant may use a Motion to Strike under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.
68
Defendant may challenge the Complaint’s legal sufficiency by a ________, under F.R.C.P. 12(b)(6).
Defendant may challenge the Complaint’s legal sufficiency by a Motion to Dismiss for Failure to State a Claim, under F.R.C.P. 12(b)(6).
69
Defendant may challenge ________ at any time. Defendant must challenge _____ and ____ at the first opportunity or waive them.
Defendant may challenge subject matter jurisdiction at any time. Defendant must challenge personal jurisdiction and venue at the first opportunity or waive them.
70
Two types of counterclaim are _____ and _____. A _____ counterclaim is one related to plaintiff's claim. If it is not asserted, it is _____.
Two types of counterclaim are compulsory and permissive. A compulsory counterclaim is one related to plaintiff's claim. If it is not asserted, it is waived.
71
A third party claim is one brought by a defendant against a ______. It is based on ______ liability.
A third party claim is one brought by a defendant against a new party. It is based on derivative liability.
72
Pleadings may be amended to add new _______, and new _____ or ________.
Pleadings may be amended to add new factual allegations, and new claims or causes of action.
73
If a pleading adds a new claim that is barred by the statute of limitations, that new claim will be allowed if it is related to the original claim and if the new claim would have been timely if filed with the original claim. This is the “doctrine of ________” in Fed. R. Civ. P. 15(c).
If a pleading adds a new claim that is barred by the statute of limitations, that new claim will be allowed if it is related to the original claim and if the new claim would have been timely if filed with the original claim. This is the “doctrine of relation back” in Fed. R. Civ. P. 15(c).
74
The doctrine of relation back also allows a plain tiff to add a new defendant after the statute of limitations has run if the _______ in Rule 15(c) is satisfied.
The doctrine of relation back also allows a plain tiff to add a new defendant after the statute of limitations has run if the balancing test in Rule 15(c) is satisfied.
75
If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff's __________.
If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff's Motion for Trial Amendment.
76
One exception to Rule 8's notice pleading rule (“short plain statement of the claim”) is that allegations of ______ must be plead with particularity.
One exception to Rule 8's notice pleading rule (“short plain statement of the claim”) is that allegations of fraud must be plead with particularity.
77
F.R.C.P. 13(a) requires defendant to assert any opposing claim against plaintiff that ______________ that is the subject matter of plaintiff's claim. This is known as a ________. If defendant fails to assert such a claim, he is barred from raising the same claim in a later lawsuit.
F.R.C.P. 13(a) requires defendant to assert any opposing claim against plaintiff that arises out of the transaction or occurrence that is the subject matter of plaintiff's claim. This is known as a compulsory counterclaim. If defendant fails to assert such a claim, he is barred from raising the same claim in a later lawsuit.
78
Exceptions to the requirement of asserting the claims discussed in the preceding question include:
a. where defendant ________ of plaintiff's claims prior to filing an Answer.
b. where the counterclaim has not ____ or _____.
c. where the counterclaim requires an additional party over whom the court _______.
d. where the counterclaim is the subject of _______.
e. where plaintiff's action is not based on ________ over defendant (i.e. an in rem action).
Exceptions to the requirement of asserting the claims discussed in the preceding question include:
a. where defendant wins a dismissal of plaintiff's claims prior to filing an Answer.
b. where the counterclaim has not arisen or matured.
c. where the counterclaim requires an additional party over whom the court lacks personal jurisdiction.
d. where the counterclaim is the subject of another pending action.
e. where plaintiff's action is not based on personal jurisdiction over defendant (i.e. an in rem action).
79
Permissive claim joinder allows any party to join ______ against ______.
Permissive claim joinder allows any party to join unrelated claims against existing parties.
80
In spite of the liberal rules for permissive joinder, all crossclaims and third party claims must be _______ the plaintiff's claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an _____ claim .
In spite of the liberal rules for permissive joinder, all crossclaims and third party claims must be related to the plaintiff's claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an unrelated claim .
81
______ parties (f/k/a compulsory parties) are those who must be joined if possible. F.R.C.P. 19 addresses this issue in two parts:
a. Rule 19(a) identifies required parties, who must be joined if feasible;
b. Rule 19(b) addresses what must happen when joinder is not feasible, which is either _______ or _______.
Required parties (f/k/a compulsory parties) are those who must be joined if possible. F.R.C.P. 19 addresses this issue in two parts:
a. Rule 19(a) identifies required parties, who must be joined if feasible;
b. Rule 19(b) addresses what must happen when joinder is not feasible, which is either dismissal or litigation without the required party.
82
F.R.C.P. 20 governs permissive joinder of parties. It permits _____ to join in one lawsuit if
a. each plaintiff asserts any right to relief arising out of the ______, or series of transactions or occurrences, AND
b. "any question of _______ common to all these persons will arise in the same action."
Rule 20 also permits _______ plaintiffs to_______ if they meet this test.
F.R.C.P. 20 governs permissive joinder of parties. It permits multiple plaintiffs to join in one lawsuit if
a. each plaintiff asserts any right to relief arising out of the same transaction, occurrence, or series of transactions or occurrences, AND
b. "any question of law or fact common to all these persons will arise in the same action."
Rule 20 also permits one or more plaintiffs to join multiple defendants if they meet this test.
83
Two other requirements for naming parties to a lawsuit are:
a.
b.
Two other requirements for naming parties to a lawsuit are:
a. Real Party in Interest
b. Capacity
84
Procedural devices for adding multiple parties include:
A. Impleader, or Third Party Action
b. Interpleader
c. Intervention
d. Class Action
e. Shareholders' Derivative Suit
85
Federal Rule 26(a) requires parties to _____ basic information relating to evidence they will use at trial, damages, and insurance.
Federal Rule 26(a) requires parties to disclose basic information relating to evidence they will use at trial, damages, and insurance.
86
The scope of discovery in federal courts is “. . . any ______ matter that is
_______ and ______. . .”
The scope of discovery in federal courts is “. . . any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case . . .”
87
The forms of discovery are:
—interrogatories
—requests to produce or inspect
—subpoenas duces tecum
—oral depositions
—written depositions
—physical and mental examinations
—requests for admission
88
Privileges shield information from discovery, such as:
-
-
-
Discovery exemptions have a similar effect. These include
-
-
—attorney-client privilege
—spousal privilege
—doctor-patient privilege
—attorney work product exemption
—client investigatory exemption (in Texas state courts)
89
The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are _____.
The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are waived.
90
Devices for dismissal include:
a. ______ Dismissal
b. ____ Dismissal for failure to prose cute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense.
c. Dismissal for ________
Devices for dismissal include:
a. Voluntary Dismissal
b. Involuntary Dismissal for failure to prose cute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense.
c. Dismissal for Failure to State a Claim
91
A Motion for Judgment on the Pleadings may be filed by _________. In deciding the motion, the court will look only to the _______ to determine if that pleading has stated a ____ or ______.
A Motion for Judgment on the Pleadings may be filed by either plaintiff or defendant. In deciding the motion, the court will look only to the nonmovant's pleadings to determine if that pleading has stated a claim or defense.
92
F.R.C.P. 56 provides that for summary judgment, the burden is on the movant to show that:
a. there is no ______, and
b. movant is ______.
F.R.C.P. 56 provides that for summary judgment, the burden is on the movant to show that:
a. there is no genuine issue of material fact, and
b. movant is entitled to judgment as a matter of law.
93
One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleadings] is that a summary judgment motion may include _____.
One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleadings] is that a summary judgment motion may include evidence.
94
For summary judgment in favor of the party not having the burden of proof at trial (usually the defendant), the movant may meet the first part of the burden (no dispute of material fact) by:
a. _________
b. ______ portions of nonmovant's essential fact allegations (Adickes)
c. pointing to the record, after a _______, and alleging that non movant lacks sufficient evidence to support an ________ of her case, upon which nonmovant has the_______. (Celotex)
For summary judgment in favor of the party not having the burden of proof at trial (usually the defendant), the movant may meet the first part of the burden (no dispute of material fact) by:
a. assuming all of nonmovant's fact allegations to be true
b. negating portions of nonmovant's essential fact allegations (Adickes)
c. pointing to the record, after a reasonable time for discovery, and alleging that non movant lacks sufficient evidence to support an essential element of her case, upon which nonmovant has the burden of proof at trial. (Celotex)
95
For summary judgment in favor of the party bearing the burden of proof at trial, the movant must meet the burden of proof by _______________ of the claim or defense.
For summary judgment in favor of the party bearing the burden of proof at trial, the movant must meet the burden of proof by offering evidence to establish each element of the claim or defense.
96
Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden shifts to nonmovant, who may defeat the motion for summary judgment by:
a.
or
b.
Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden shifts to nonmovant, who may defeat the motion for summary judgment by:
a. creating a fact dispute, or
b. showing that the law does not entitle movant to judgment.
97
In deciding the motion for summary judgment, the court must view the evidence in the _________________________.
In deciding the motion for summary judgment, the court must view the evidence in the light most favorable to the nonmovant.
98
To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which _________. If reasonable minds could not differ, then there is no fact dispute, and the judge may render summary judgment.
To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which reasonable minds could differ. If reasonable minds could not differ, then there is no fact dispute, and the judge may render summary judgment.
99
Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is the same as for a motion for _____________.
Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is the same as for a motion for directed verdict.
100
If a party lacks evidence to respond to a motion for summary judgment, that party may seek ____________ under Rule 56(f).
If a party lacks evidence to respond to a motion for summary judgment, that party may seek additional time under Rule 56(f).
101
In federal court, the trial issues of law and fact are governed by a Pretrial Order. In state courts that do not use a ______, the issues of fact and law are governed by the ___________.
In federal court, the trial issues of law and fact are governed by a Pretrial Order. In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the latest pleadings.
102
The process of questioning prospective jurors is called _______.
The process of questioning prospective jurors is called voir dire
103
There are two kinds of challenges to prospective jurors:
____________ are based on the court's ruling that reasonable cause exists to excuse that person from jury service based on a possibility of prejudice against one of the parties, or some other bias in the case.
______________ allow the parties a limited number of "strikes" to excuse prospective jurors for no stated reason.
There are two kinds of challenges to prospective jurors:
Challenges for cause are based on the court's ruling that reasonable cause exists to excuse that person from jury service based on a possibility of prejudice against one of the parties, or some other bias in the case.
Peremptory challenges allow the parties a limited number of "strikes" to excuse prospective jurors for no stated reason.
104
Asking the court to order all witnesses other than parties to leave the room is known as _________.
Asking the court to order all witnesses other than parties to leave the room is known as invoking The Rule.
105
A defendant may move for the _______ if he has the burden of proof on all the remaining issues.
A defendant may move for the right to open and close if he has the burden of proof on all the remaining issues.
106
Under the Seventh Amendment to the United States Constitution, all parties in federal court have a right to trial by jury in _________ exceeding _________ in controversy.
Under the Seventh Amendment to the United States Constitution, all parties in federal court have a right to trial by jury in cases at common law exceeding twenty dollars in controversy.
107
In federal court, parties have no constitutional right to trial by jury in _____ cases. However, the states may grant the right to jury trial in equity cases.
In federal court, parties have no constitutional right to trial by jury in equity cases. However, the states may grant the right to jury trial in equity cases.
108
The right to jury trial is presumed to exist under a federal statute unless that statute _______ the right.
The right to jury trial is presumed to exist under a federal statute unless that statute expressly excludes the right.
109
If a party fails to request a jury within the time allowed by forum law, the right to jury trial is ______.
If a party fails to request a jury within the time allowed by forum law, the right to jury trial is waived.
110
After all evidence and arguments have been presented, the judge describes the applicable law to the jury in ________. If the judge instructs the jury incorrectly on an issue of law, this is _______ even though it applies to the jury's function.
After all evidence and arguments have been presented, the judge describes the applicable law to the jury in jury instructions. If the judge instructs the jury incorrectly on an issue of law, this is appealable even though it applies to the jury's function.
111
If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the__________.
If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the trier of law and fact.
112
As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that “directed verdict” and “judgment notwithstanding the verdict” are both known as “_________________."
As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that “directed verdict” and “judgment notwithstanding the verdict” are both known as “judgment as a matter of law.”
113
In a jury trial, at the close of plaintiff's evidence, defendant may move for a __________ (the old directed verdict) under Fed. R. Civ. P. 50(a). The judge may grant it if, viewing the evidence in the __________ , a reasonable jury could not find for plaintiff.
In a jury trial, at the close of plaintiff's evidence, defendant may move for a judgment as a matter of law (the old directed verdict) under Fed. R. Civ. P. 50(a). The judge may grant it if, viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could not find for plaintiff.
114
If the motion for judgment as a matter of law (or directed verdict) is denied, defendant presents his case. At the close of defendant's evidence, ________ may move for judgment as a matter of law, which may be granted if a reasonable jury could only find for movant.
If the motion for judgment as a matter of law (or directed verdict) is denied, defendant presents his case. At the close of defendant's evidence, plaintiff and defendant may move for judgment as a matter of law, which may be granted if a reasonable jury could only find for movant.
115
After the jury has returned its verdict, the losing party may move for _________ (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within ____ days after entry of judgment. However, movant must have filed a motion for _______ during the trial as a prerequisite.
After the jury has returned its verdict, the losing party may move for judgment as a matter of law (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within 28 days after entry of judgment. However, movant must have filed a motion for judgment as a matter of law during the trial as a prerequisite.
116
After trial, the losing party may file a Motion for New Trial within twenty-eight (28) days after entry of Judgment. The trial judge may grant a new trial on any of the following grounds:
—
—
—
—result contrary to the __________
After trial, the losing party may file a Motion for New Trial within twenty-eight (28) days after entry of Judgment. The trial judge may grant a new trial on any of the following grounds:
—trial error
—newly discovered evidence
—misconduct
—result contrary to the great weight of the evidence
117
The Court of Appeals may reverse the trial judge's granting of a Motion for New Trial only if there was ______to support the granting of a new trial.
The Court of Appeals may reverse the trial judge's granting of a Motion for New Trial only if there was no evidence to support the granting of a new trial.
118
Courts may grant a new trial, conditioned on remittitur or additur. _______ orders a new trial unless plaintiff accepts a lesser amount of damages. ______ orders a new trial unless defendant agrees to pay extra damages. Federal law prohibits _____ as a violation of the right to jury trial.
Courts may grant a new trial, conditioned on remittitur or additur. Remittitur orders a new trial unless plaintiff accepts a lesser amount of damages. Additur orders a new trial unless defendant agrees to pay extra damages. Federal law prohibits additur as a violation of the right to jury trial.
119
A new trial may be granted for newly discovered evidence if the following conditions are met:
— the new evidence was discovered _____
— the new evidence was not discoverable by ________ prior to the first trial
—the new evidence is ___________
—the new evidence will _____________
A new trial may be granted for newly discovered evidence if the following conditions are met:
— the new evidence was discovered after the first trial
— the new evidence was not discoverable by reasonable diligence prior to the first trial
—the new evidence is not merely cumulative
—the new evidence will probably produce a new result
120
Under F.R.C.P. 60(a), a party may correct ______ and other ________ in a judgment. Under F.R.C.P. 60(b), a party may ask for a new trial based on________________.
Under F.R.C.P. 60(a), a party may correct clerical mistakes and other inadvertent errors in a judgment. Under F.R.C.P. 60(b), a party may ask for a new trial based on newly discovered evidence or fraud.
121
A party may also challenge a final judgment by ___________ alleging ___________________.
A party may also challenge a final judgment by filing a new action alleging newly discovered evidence or fraud.
122
Thus there are three methods for challenging a judgment based on newly discovered evidence or fraud:
a.
b.
c.
One principle difference between these three is the___allowed for filing.
Thus there are three methods for challenging a judgment based on newly discovered evidence or fraud:
a. Motion for New Trial (Rule 59)
b. Motion for Relief from Judgment (Rule 60)
c. A New Lawsuit
One principle difference between these three is the time allowed for filing.
123
Appellate courts primarily review ________. In order to receive appellate review, there must be a trial error that was ________ by a ________.
Appellate courts primarily review questions of law. In order to receive appellate review, there must be a trial error that was properly preserved by a timely objection.
124
Appellant may preserve error by:
a. ______ at the time of the error,
b. stating the _____ for the objection,
c. making known to the court the ______ , and
d. obtaining a ____ on the objection.
Appellant may preserve error by:
a. objecting at the time of the error,
b. stating the grounds for the objection,
c. making known to the court the action desired, and
d. obtaining a ruling on the objection.
125
Appellate courts may also review the jury's decision, but only as to the _______, which is also a question of ______.
Appellate courts may also review the jury's decision, but only as to the sufficiency of the evidence, which is also a question of law.
126
Preclusion is the doctrine that limits the relitigation of issues and claims. The two kinds of preclusion are:
—
—
Preclusion is the doctrine that limits the relitigation of issues and claims. The two kinds of preclusion are:
—Claim preclusion
—Issue preclusion
127
Another name for preclusion is
Another name for preclusion is "res judicata."
128
Claim preclusion includes the doctrines of _____ and _____.
Claim preclusion includes the doctrines of merger and bar.
129
Merger applies to judgments for ______. It provides that a _________ judgment for plaintiff (a) prevents plaintiff from suing again, except in a collection action on the judgment, and (b) bars defendant's defenses in an action on the judgment.’
Merger applies to judgments for Plaintiff. It provides that a valid and final judgment for plaintiff (a) prevents plaintiff from suing again, except in a collection action on the judgment, and (b) bars defendant's defenses in an action on the judgment.’
130
Bar applies to judgments for _______. It provides that a judgment for defendant ____________ on the same claim.
Bar applies to judgments for Defendant. It provides that a judgment for defendant bars another action by plaintiff on the same claim.
131
The-elements of claim preclusion are:
a.
b.
c.
same claim
b. same parties
c. valid and final judgment
132
In federal court, the trial issues of law and fact are governed by a ______. In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the ______.
In federal court, the trial issues of law and fact are governed by a Pretrial Order. In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the latest pleadings.
133
Claim preclusion does not apply to certain actions, including:
a. Dismissal on grounds of _________
b. ________
c. Where preclusion is _______
d. ______ courts (in some jurisdictions)
Claim preclusion does not apply to certain actions, including:
a. Dismissal on grounds of jurisdiction, venue, or party joinder
b. Nonsuit without prejudice
c. Where preclusion is denied by statute
d. Small Claims courts (in some jurisdictions)
134
Issue preclusion is also known as_______.
Issue preclusion is also known as collateral estoppel.
135
Issue preclusion does not apply to whole lawsuits, but to:
a. issues of _____
b. that were _____
c. that ended in a______
d. where determination of that issue was _____ to the judgment, and
e. where the judgment is _____
Issue preclusion does not apply to whole lawsuits, but to:
a. issues of law or fact
b. that were actually litigated
c. that ended in a valid and final judgment,
d. where determination of that issue was essential to the judgment, and
e. where the judgment is binding on the party being estopped
136
Issue preclusion no longer requires mutuality of parties. This is also known as "offensive collateral estoppel." It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a _____ and (b) had a _______.
Issue preclusion no longer requires mutuality of parties. This is also known as "offensive collateral estoppel." It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a party and (b) had a full and fair opportunity to litigate.
