FRCP Flashcards
(307 cards)
1
Q
Can a state claim be joined with a federal claim even without diversity?
A
Yes supplemental jurisdiction exists even if diversity does not so long as the federal claim has the same root transaction or occurrence.
2
Q
What are the big topics in Civ. Pro?
A
(1) Forum Selection (2) Procedural Law
3
Q
What are the parts of forum selection?
A
(1) Jurisdiction, (2) Venue, (3) Law
4
Q
Civ Pro Phone Number
A
4047276838
5
Q
What are the types of Jurisdiction?
A
(1) Personal and (2) Subject Matter
6
Q
What is Personal Jurisdiction (PJ) ?
A
The court’s power over the parties.
7
Q
What is Subject Matter Jurisdiction?
A
The court’s power over the law.
8
Q
What are the steps to determining PJ?
A
(1) Must fall within a statute and (2) must satisfy the constitution.
9
Q
What is a long-arm statute?
A
A state statute that specifies when and how the state court may have jurisdiction over non-resident defendants.
10
Q
What is the consitutional requirement for PJ?
A
Minimum contacts with the forum state.
11
Q
What are the factors of constitutional PJ?
A
(1) Contact, (2) Relatedness, and (3) Fairness
12
Q
What is contact for PJ?
A
(1) Purposful availalment and(2) foreseeability.
13
Q
What is purposful availment?
A
A voluntary act targeting the forum.
14
Q
How may a person exercise purposful availment?
A
Does not have to be physical, online may suffice if persons in the forum are targetted.
15
Q
What is foreseeability?
A
It is foreseeable a lawsuit could arise in the forum.
16
Q
What is relatedness?
A
If the plaintiff’s claim arises out of or relate to the defendants contact with the forum.
17
Q
What is the scope of relatedness?
A
Relatedness is not confined to a direct causal injury but extends to any conduct related to substantial contact with the forum state. It is either (1) specific or (2) general.
18
Q
What are the types of personal jurisdiction?
A
(1) Specific, (2) General
19
Q
What is general PJ?
A
(1) The defendant is at home in the forum. (2) A person is at home when domiciled.
20
Q
What are the two ways to get general PJ?
A
(1) Domiciled in Forum or (2) Served in the Forum
21
Q
When is a corporation at home?
A
(1) State of incorporation and (2) Principal place of business
22
Q
What is fairness?
A
Whether it would be fair or reasonable in the circumstances in a question of specific personal jurisdiction.
23
Q
When does fairness apply?
A
Only in specific personal jurisdiction
24
Q
What are the factors of fairness?
A
(1) Burden on the defendant and witnesses, (2) State’s interest, (3) Plaintiff’s interest
25
What is Process?
(1) Summons and (2) Copy of the complaint.
26
What is necessary notice for a suit?
Service of Process
27
Who can serve process?
(1) Non-party (2) at least 18, (3) or specified by court
28
When must process be served?
(1) In the United States, (2) within 90 days of the filing of the complaint.
29
How is processed served?
(1) Personal service, (2) substitute service, (3) service on an agent, (4) state law methods.
30
What is personal service?
Physically approaching the defendant, giving them the summons and complaint, and informing them of the service.
31
What is substitute personal service?
(1) To a resident (2) in the plaintiffs personal abode (3) of suitable age and discretion.
32
What is usual abode?
A common-sense determination for where they are living. May include summer homes if in the season.
33
Must the person accepting process for substitution be related?
No, they must simply live there and have suitable age and discretion.
34
What is service on an agent?
The personal delivery of the process to an identifiable agent of the defendant for this purpose. E.g. an attorney or personal assistant.
35
What states are determinative for state law methods?
(1) State of the forum and (2) service is made.
36
How is process served on a business or organization?
(1) Delivery to an officer or agent, or (2) State law service
37
Who is service done on a minor or incompetent person?
It must be (1) state law of (2) the state where it is served.
38
How is service of process done for a foreign defendant?
(1) As directed by American Courts, (2) method allowed by the foreign countries law, (3) a letter rogatory from an official of the country, or (4) mail sent by the America clerk so long as signed upon receipt and not prohibited by the foreign government.
39
How is service waived?
Plaintiff sends (1) a copy of the complaint & summons, and (2) two waiver forms and (3) the defendant signs and returns waivers to the plaintiff, (4) the plaintiff files it with the court.
40
Does waiving service waive personal jurisdiction?
No
41
What happens if the defendant failed to return waiver?
The defendant may be liable for the cost of service of process.
42
How can process of service be recovered?
The person serving the service files an affidavit with the cout.
43
How is a defendant immune?
If already appearing in another case in the same jurisdiction
44
What is required for motions, responses, etc. served?
(1) Delivery of relevant documents either (2) by mail or other media agreed to. No need for summons.
45
When is service performed if mailed?
As soon as it is sent.
46
What is the scope of subject matter jurisdiction (SMJ)?
(1) Federal has limited subject matter jurisdiction, (2) states have general subject matter jurisdiction
47
Can a state court generally hear federal claims?
Yes, with a few exceptions.
48
What are the SMJ for Federal?
(1) Federal Questions, (2) Diversity
49
Can SMJ be waived?
No, it is not waivable.
50
What is diversity?
(1) Right kind of litigants AND (2) Amount in controversy over $75,000
51
What are the right types of litigants for diversity?
(1) Alienage [US Citizen v. Non-US Citizen], (2) Plaintiffs and defendants are not in the same state
52
When is diversity void for US citizens?
No SMJ exists if ANY plaintiffs are domiciled in the same state as ANY defendant.
53
When is domicile for diversity established?
At the time of the filing.
54
What is the status of a Green Card holder?
They are not a US citizen for the purpose of diversity, however if they are domiciled in the same state as an opposing party there is no diversity.
55
What are the necessary elements of changing domicile?
(1) Establishing physical presence AND (2) intent to make it home for indefinite future.
56
How is intent to change domicile determined?
Actions such as registering to vote, purchasing a home, joining local organizations etc.
57
What is the effect of changing domicile after filing on diversity?
No effect. Only domicile at the time of filing.
58
How is citizenship of a corporation determined?
(1) Any state or country it is incorporated and (2) a state or country where there is a principal place of business
59
What is Principal Place of Business (PPB)?
Where the "nerve center" of the business occurs. Determined by where the officers make the decisions.
60
How is an unincorporated citizenship determined?
Partnership: Citizenship of all of its members. Limited partnership: principal partners.
61
What is the citizenship of minors, incompetents, or decedants?
The citizenship of the minors, incompetents, or descendants, not their agents.
62
What citizenship is used for class action?
Named representative, not all of the class constituents.
63
When is the amount satisfied?
(1) Claim itself not prejudgment interest, (2) clear to a legal certainty exceeds $75,000.00.
64
May punitive damages included in the calculation for the amount in controversy?
It may, but only in an appropriate case. Thus Contracts are usually excluded.
65
What is the effect of the effect of the actual recovery amount on diversity?
Irrelevant even if less than $75,000
66
What is the effect of aggregate claims?
Claims may be aggregated but must exceed $75,000 for a single party against another single party.
67
What is the effect of joint claims?
The number of parties is irrelevant, it is only the value of the aggregated claim from one plaintiff against one defendant. If one plaintiff DOES meet it, then supplemental may apply to include the one that does not.
68
What is the effect of equitable relief on the amount in controversy?
(1) If the relief is granted will provide over $75,000 in benefits to the plaintiff or (2) will the compliance by the defendant exceed $75,000.
69
When are federal courts going to refuse diversity?
(1) Divorce, (2) alimony, (3) child custody, or (4) probate.
70
When can a court refuse diversity?
If a change in citizenship or transaction is merely tactical and shallow to get diversity.
71
When is there a federal question?
(1) Claim arises under federal law, (2) determined by a well-pleaded complaint.
72
What is a "well-pleaded complaint"?
(1) The plaintiff's claim itself must arise under federal law and (2) the plaintiff is seeking to enforce a federal right.
73
What are the necessary elements of federal questions?
(1) federal right given by (2) federal law.
74
What is removal?
A procedure allowing the defendant to move a case from state court to federal court. State -> Federal
75
What is remand?
Sending a claim back to a state court or a lower court. Federal -> State
76
What is transfer?
A change of venue or actual court within the same judicial system and jurisdiction. State court A -> State court B; Fed Court A -> Fed Court B.
77
What is the standard for Removal?
The case could have been filed in federal court regardless of whether the state court had jurisdiction.
78
What is required for Notice of Removal?
(1) Grounds of removal, (2) Court permission NOT required, (3) Served on adverse parties, (4) File in federal court and copy in state court.
79
What is the timing of removal?
Within 30 days after service of process when it became removable. Unless multiple defendants are served at a later time, then it is 30 days from the latest defendant being served.
80
Who is joined in Removal?
All defendants. Not all need to be in the same papers.
81
Who has the right to remove?
Only the original defendants, even counter-claims are not sufficient.
82
What can be removed?
(1) SMJ, (2) Limits on removal based on diversity:
| (a) Any defendant is a citizen of the forum state, (b) after one year of filing.
83
When does the one year time limit tend to apply?
When a defendant destroying diversity is dismissed or a federal claim is added.
84
What may overcome the one year removal?
If it is proven one of the defendants was added solely to prevent removal.
85
Can a case be removed from a state court to a federal district outside the state court?
No, the removal must be in the district.
86
When may a plaintiff move to remand?
Within 30 days if the defect is other than lack of SMJ, but limit does not apply if there is a defect in SMJ
87
What is supplemental jurisdiction?
A sub-species of federal subject matter jurisdiction.
88
How is supplemental jurisdiction found?
(1) invalid as an independent claim in federal court under diversity, (2) common nucleus.
89
When is an additional claim independently invalid?
In a federal court, look for SMJ in an additional claim. If the additional claim is already independently within federal SMJ, then supplemental does not apply.
90
What is the common nucleus?
The facts must be substantively related to the additional claim. It must arise from the same transaction or occurrence.
91
What claims are excluded to supplemental jurisdiction?
Any cases that got into court through federal questions.
92
What is the limit on supplemental jurisdictions?
Plaintiffs may not invoke through new claims, except if there are multiple plaintiffs and one of the claims by one of them does not meet the amount in controversy fails.
93
What is the first step of the Erie Doctrine?
Is there a federal law on point that directly conflicts with state law? Then fed wins if valid.
94
How does Erie affect FRCP?
FRCP are presumptively valid, federal rules usually apply
95
What is the second step of the Erie?
Is there no federal law on point? Then federal court must apply the state law if it is substantive.
96
What are the substantive issues in which state law always applies?
(1) Conflict or choice of law (2) elements of claim, (3) statute of limitations, (4) rules for tolling, (5) standard for granting a new trial in excess or insufficient awards.
97
What is the relationship of SOL to Erie?
SOLs are ALWAYS substantive under Erie.
98
Who prevails with multiple states involving SOL?
Forum state prevails for SOL
99
When is an issue substantive?
(1) outcome-determinative, (2) balance interest factors, and (3) avoid forum shopping.
100
When is an issue outcome-determinative?
If when the state law is applied one party will clearly win.
101
How are interest factors balanced?
The stronger interest of the state tends to win.
102
How is forum shopping determined?
If the decision will lead to a flood of cases in federal court.
103
Where does Federal Common Law exist?
International relations, inter-state disputes, and admiralty.
104
What are the possibilities for venue?
(1) Any district where ALL defendants reside OR (2) Where a substantial part of the claim arose or a substantial part of the property is located.
105
When does the rule for venue apply?
For claims initially filed in Federal Court, not removed from state court.
106
When is it appropriate to have a different venue?
If the defendants reside in the same STATE, but not DISTRICT.
107
Who has the burden for transfer?
The person seeking the transfer.
108
How is it determined if transfer is eligible?
(1) law, (2) community for jury, (3) local controversies local, (4) convenience for the parties, (5) availability of evidence.
109
What is the effect of transfer in diversity for choice of law?
The transferee must apply the laws of the transferor.
110
When are forum selection clauses held?
Ordinarily enforced, unless public interest say otherwise or transferee court applies own choice of law rules.
111
What is forum non conveniens?
The Center of gravity is elsewhere in a different judicial system, but cannot be transferred and is thus dismissed.
112
What are the pleading contents?
(1) Grounds of SMJ, PJ not required (2) short and plain statement showing plaintiff is plausibly entitled to relief, (3) sufficient facts.
113
How is "plausibility" determined?
It is up to the discretion of the judge.
114
What must a defendant do to respond?
Defendant must respond by motion or answer within 21 days of proper service of process.
115
What is the effect of waiver of process on response?
Waiver of service increases time to 60 days.
116
How are motions different from pleadings?
They are seeking a court order for the other party to do or not do something.
117
Who may move to strike?
Any party can move to stike.
118
What are the 12(b) defenses?
(1) lack of PJ, any improper (2) venue, (3) process, (4) service of process; any failure: (5) state a claim, (6) join a party, (7) lack of SMJ [can be raised at ANY time].
119
What 12(b) motions are waivable?
(1) lack of PJ, improper (2) venue, (3) process, (4) service of process.
120
What must a defendant do after a failed motion to dismiss?
Must supply an answer within 14 days of the denial.
121
What is an answer?
A pleading that responds to the allegations in the complaint may be either: (1) admit, (2) deny, or (3) lack of knowledge for some or all allegations. The defendant must then raise affirmative defenses.
122
What is the effect of stating "lack of knowledge"?
It is seen as denial and may not be raised if it is not true.
123
What is the effect of failing to deny?
An admission, unless it involves damages.
124
What must the plaintiff do in response to an answer?
Nothing.
125
When is there a right to amend?
The plaintiff has a right to amend their complaint once no later than 21 days after the defendant serves their rule 12 response. A defendant may amend 21 days after serving an answer.
126
What must a party do to get amendment when there is not a right?
(1) Leave to amend by the court or (2) by consent of the party.
127
When is an amendment going to be denied?
(1) Prejudices a party, (2) delay, (3) pointless.
128
When is a claim pleading related back?
When an amended pleading is treated as if filed on the date of the original complaint and is substantially related to the original complaint despite the amended claim otherwise beyond the SOL.
129
What are Rule 11 conditions?
Must file proper purpose, proper arguments, factual evidence, and factual denial.
130
Where are monetary sanctions paid?
To the court.
131
What are the safe harbor provisions for sanctions?
Party seeing sanctions must serve motions on the opponent and then the served party has 21 days to remedy.
132
How do you determine absentee requirement joinder?
(1) Are they necessary or required? (2) can the absentee be joined? (3) Can the case proceed without the absentee?
133
What are the tests for "necessary" absentee?
(1) Can complete relief be accorded among existing parties? (2) Will absentee's interests be harmed? (3) Will the defendant be subject to multiple or inconsistent liability?
134
When can an absentee be joined?
(1) PJ over absentee and (2) SMJ over the claim or by absentee.
135
Can a case proceed without absentee?
(1) Alternative forum, (2) actual harm, (3) court can shape relief.
136
What is a counterclaim?
A claim back against the complaining party. Usually by the defendant against the plaintiff. Response required within 21 days of service.
137
What is a permissive counterclaim?
(1) Does not arise from the same transaction or event. (2) Not lost if not brought. (3) SMJ is often the issue.
138
What is a crossclaim?
A claim arising from the same original complaint against a co-defendant.
139
What is the justicability of counter and cross claims?
(1) Cross-claims are not waived if not brought. (2) Counter-claims are waived if based in the same action or occurence. (3) Counter-claims are not waived if not based in the same underlying facts.
140
What is a compulsery counterclaim?
Any counterclaim related to the same transaction or occurrence of the original claim.
141
What is an impleader (third-party claim)?
When a defendant bring in a new party for indeminity or contribution.
142
What is a TPD?
Third-Party Defendant
143
What is the purpose of an impleader?
To shift liability owed from defendant.
144
When are impleader claims permissible?
Always. Not waived if not brought in the original claim.
145
What is necessary to have an impleader?
(1) PJ & SMJ or supplemental jurisdiction, (2) service of process, (3) within 21 days.
146
What is an intervention?
The addition of a third-party by their own action.
147
What are the types of intervention?
(1) By right, (2) By permission.
148
When does an intervention by right occur?
If their interests would be harmed by an outcome of the case. [Same test as necessary absentee].
149
When is permissible intervention allowed?
Almost always unless (1) no SMJ, (2) creates delay, (3) may harm a party.
150
What is a class action?
An action when (1) representative(s) (2) sues on behalf of a group.
151
When may a person bring an action?
(1) Numerosity (2) Commonality, (3) Typicality, (4) Adequacy of the representative.
152
What is numerosity?
The number of potential or actual plaintiffs represented in a class is not too large or too small.
153
What are the types of class action?
(1) Type I - Prejudice Action [exceedingly rare]. (2) Type II - Equitable (3) Type III - Damages
154
What is a Type I Class Action?
An action that is necessary to avoid harming the interest of several parties. E.g. A limited sum of money to which many are entitled but which would be depleted if each brought an action.
155
When does a Type II Class Action apply?
A class has been treated alike by a defendant.
156
What is Type III Class Action?
(1) Common questions must predominate over individual ones, (2) superior method for handling a dispute.
157
How must a certification occur?
(1) Court defines the class, claims, issues, and defenses. (2) Court appoints the counsel.
158
What is the appealability of class certification?
Appealable, but with discretion of the appellate court.
159
What is the notice required for a Type III class action?
(1) The representative pays to (2) send by mail or similar to all potential members, (3) informing them of the case, and (4) provide a right to opt-out or pursue on their own.
160
Which class action may someone opt-out?
Only Type III
161
When may a class action be settled?
(1) After certification, (2) with approval by the court, (3) with consent by the plaintiffs.
162
How does diversity apply to class actions?
Only the citizenship and the claims of the class representative is relevant.
163
What is CAFA?
Class Action Fairness Act
164
What does CAFA cover?
Special SMJ if (1) Class >= 100 members, (2) any class member diverse from any defendant, (3) aggregated claims exceed $5 Million, (4) any defendant may remove, (5) local actions stay local.
165
What are indisclosures disclosures?
Disclosures required by the court at the beginning of discovery.
166
What makes a disclosure mandatory?
(1) If it may be used to support a parties claim/defense and (2) within 14 days of filing.
167
What is included in mandatory disclosures?
(1) Names, numbers, and addresses of people with discoverable info if might be used and (2) Documents if might be used to support.
168
What is included in initial disclosures?
(1) Computation of damages (2) Insurance coverage.
169
What are the penalties for defects in initial disclosures?
Fining and sanctions.
170
When are expert witnesses required for disclosure?
(1) Identity of testifying experts, (2) written reports by expert, (3) drafts of reports, and communication and protected work product.
171
What are needed in reports?
(1) Basis, (2) facts, (3) qualifications, (4) compensation.
172
When does an expert witness NOT have to be disclosed?
If the expert witness is not going to testify, nor will any of their reports be used.
173
What are the parameters of depositions by opposing parties?
(1) Opposing party must have opportunity to depose expert witness, (2) Opposing party pays the cost of expert for deposition limited by court.
174
What are Pretrial Disclosures?
(1) Identities of witnesses, (2) Documents going to be used, (3) Demonstrative evidence.
175
At what time are Pretrial Disclosures required?
30 days prior to trial.
176
When can a party send discovery requests?
(1) After the discovery conference or (2) requests to produce within 21 days of service.
177
Who bears the costs of discovery?
The responding party.
178
What are the discovery tools?
(1) Deposition, (2) Interrogatories, (3) Request to Produce, (4) Medical Exams, (5) Requests for Admission
179
What is a deposition?
A recorded live testimony of parties or non-parties, under oath, given in response to questions by counsel.
180
What are subpoenas or notice of deposition?
(1) Non-parties, subpoena is necessary and sufficient (2) For parties, notice is sufficient
181
What is Duces Tecum?
A subpoena to deponent to bring material deposition.
182
What are the geographic limits on depositions for the deposed to travel?
Within 100 miles.
183
How is an organization deposed?
(1) Describe the facts desired to the business, (2) business designates someone to testify on that matter in a deposition.
184
What are the limits?
(1) No more than 10, (2) may not depose same person twice. (3) Courts may grant leave to exceptions.
185
What are the uses of deposition allowed at trial
(1) impeachment, (2) unavailable defendant for truth of matter.
186
What are interrogatories?
(1) Written questions, (2) to be responded in writing by other party, (3) under oath.
187
What is the maximum number of interrogatories?
Twenty-Five
188
What time limit is there for interrogatories?
Thirty days from their service.
189
When is a response required?
Any information reasonably available to the party.
190
When may a party defer in an interrogatory?
Where access to business records are equally accessible to both parties.
191
What are permitted in interrogatories?
(1) Facts AND (2) legal contentions
192
What is ESI?
Electronically Stored Information
193
What form may ESI be delivered?
In the form requested by the requesting party.
194
What falls under request for production?
(1) Documents, (2) ESI, (3) schematics, (4) things or objects.
195
What are required for Medical Exams?
(1) Court order, (2) of a party only, (3) where the health is in controversy, and (4) for good cause.
196
How may a party fulfill request for production?
(1) copies, (2) deliveries, (3) permission to enter a premise at a certain time under certain conditions.
197
What are the effects of requesting a copy of the medical report?
Waives the rights to medical records of their own relating to the same condition.
198
What are request for admission?
Written requests, asking opponent to admit facts.
199
What is required to respond to RFAs?
(1) Deny, deny knowledge, object, or admit (2) after reasonable inquiry, and (3) within 30 days.
200
What are the parameters on supplemental discovery?
A party MUST supplement a discovery response with new information when it is relevant.
201
What is the scope of discovery?
Party can discover anything relevant to claim or defense and proportional to the needs of case.
202
What is the relationship between discoverability and admissibility?
Discovery is broader than admissibility and includes information that may be inadmissible.
203
What can a party do to prevent discovery?
A protective order.
204
If a party objects to ESI discovery, what may the court do?
The court may apportion and shift costs if the requesting party has shown good cause.
205
What is "work product"?
Any material prepared "in anticipation of litigation."
206
Who may create "work product?"
Any person, not just the attorney, who created the materials in anticipation of the litigation.
207
When may work product be discovered?
(1)A substantial need, and (2) undue hardship in obtaining the information in any other way.
208
How are qualified and absolute work product distinguished?
Qualified work product relates to facts or information whereas absolute work product relates to opinions, conclusions, and legal theories.
209
How are identities of persons related to discoverability?
The identities of individuals with relevant information is not protected by privilege or work product.
210
When may a party object based on AWP or Priviliege?
(1) Express Request for Protection and (2) Create a privilege log containing (a) date, (b) author, and (c) information.
211
What happens when information is inadvertantly disclosed?
If a party finds they sent it they must promptly send notice and request sequester. The court may then rule on whether the priviliege is waived.
212
When may a protective order be gratned?
If there is (1) annoyance, embarrassment, undue burden or expense (2) an attempt to work out without court involvement.
213
What may a court do with a request for protective orders in discovery?
(1) Grant in full, (2) grant in part, (3) sequestered use, and (4) deny.
214
How are sanctions determined?
Degree of failure to comply.
215
How may sanctions be saught for partial failure?
(1) Party seeking must certify they attempted out-of-court resolution, (2) requesting party seeks order to compel, (3) the party refuses fails to respond to court order.
216
What are merit sanctions?
(1) Establishment order, (2) strike claims or pleadings, (3) dis-allowance of evidence, (4) dismissal or default.
217
What exception are there to refusals to comply?
Refusal to undergo a medical exam.
218
How can sanctions be saught for total failure?
(1) show an attempt to resolve out of court, (2) seek merit sanctions immediately.
219
What is an establishment order?
An order by the court establishing a fact that a party refuses to answer in discovery.
220
What is a special hold?
Usually with ESI, a party must take reasonable steps to preserve information.
221
What is the effect of failing to fulfill a special hold?
If a party failed to do so intentionally or in bad faith, they may be subject to sanctions or even default.
222
What is preliminary injunctive relief?
An equitable order, by the court, for a party to do or not do something prior to trial. It maintains the status quo.
223
What is a temporary restraining order or TRO?
An order that can be issued ex parte before any hearing on a preliminary injunction.
224
When may an ex parte TRO be issued?
A party must show (1) immediate and (2) irreparable harm, that is (3) attorney certified of attempted notice or why it would be dangerous, and (4) post bond in case of incorrect issue.
225
What is the limit on the TRO?
No more than 14 days, cannot exceed 28 days after one extension.
226
What must be shown for a preliminary injuction by the seeking party?
Stated with specificity: (1) High probability of irreparable harm (2) likely to win on the merits, (3) balance of hardship leans to the one seeking the injunction, and (4) is in the public interest.
227
What are non-trial conclusions?
(1) Voluntary dismissal without court, (2) voluntary dismissal with court, (3) involuntary dismissal, (4) summary judgment, (5) court-ordered arbitration, (6) contractual arbitration, (7) Default
228
How may a voluntary dismissal occur without court permission?
A plaintiff may withdraw a case without court order if the defendant has not filed answers or motion for summary judgment.
229
What is a voluntary dimissial with court permission?
(1) Plaintiff motions for voluntary dismissal, (2) Court has discretion, (3) first voluntary dismissal is without prejudice, but second is WITH prejudice.
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What is a default?
(1) Non-response, (2) Not automatic and moved by plaintiff, (3) entered before D responds.
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What is a default judgment?
A clerk can enter default judgment if (1) no response, (2) claim for a certain sum, (3) plaintiff gives affidavit amount owed, (4) defendant is not a minor or incompetent.
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Who may grant a default judgment?
A court clerk.
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What can someone do who is in default?
A party may with (1) good cause and (2) a viable defense.
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What is acceptable for "good cause"?
Excusable neglect or extenuating circumstances.
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What is FRCP 12(b)(6)?
A motion to dismiss for failure to state a claim or motion for judgment on the pleadings.
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What does a court look at 12(b)(6)?
Court examines allegation of facts ignoring legal conclusions & evidentiary value. Then assuming the facts are true and the plaintiff does not have a plausible claim then the case is dismissed.
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What is FRCP 56?
The motion for summary judgment.
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When is FRCP 56 applied?
After survival of any 12(b)(6) and there is no dispute of material facts.
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What must a party show for summary judgment?
(1) No genuine dispute of material fact, (2) entitled to judgment as a matter of law.
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When may a party move for summary judgment?
No later than 30 days from the close of discovery.
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How does the court view evidence in a motion for summary judgment?
The court looks at the evidence in a manner most favorable to the party which did not make the motion.
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How can a summary judgment be delayed?
If a party moves to show they need more time to gather evidence for a specific set of material facts.
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Can a pleading be used as evidence for summary judgment?
Yes, but only if it is made under oath as a verified pleading.
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May the judge consider credibility in examining the evidence?
No, unless there is recorded video evidence that completely refutes the testimony.
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What is a "scheduling order?"
An order given by the court sets deadlines for certain motions and discovery.
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What must the parties do for a scheduling order?
The parties must provide (1) views and proposals, (2) issues on ESI, (3) how ESI may be difficult, (4) timings.
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What is the final pre-trial conference?
A determination of (1) issues to be tried and (2) evidence to be admitted that (3) supersedes the pleadings, (4) to avoid surprises at trial.
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What is the end of a trial?
If with a jury, a verdict.
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What is a "motion in limine"?
An adjudication of whether certain evidence should be admitted outside the hearing of a jury.
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When does the 7th amendment apply?
In (1) civil cases of law (2) in federal court (3) there is a right to a jury.
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When does is the effect of a mixed legal & equitable claim?
All facts related to law are tried before a jury and the equitable claims, usually tried after, are brought before the judge.
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How must a party gain a jury trial?
(1) A demand in writing (2) no later than 14 days from the last pleading (3) showing a triable issue for a jury.
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What are the challenges to jurors?
(1) Unlimited for cause and (2) three preemptory challenges for no reason.
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How are jury instructions objected?
Judge must tell parties what instruction it will give and what instructions were refused, party must object on the record, and objection must be before jury is charged.
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What are the types of verdict?
(1) General verdict of the winner, (2) a special verdict is a written answer to facts in the case without saying who wins, (3) combo general and special with written questions.
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What is the effect of inconsistent jury verdicts?
No judgment can be entered.
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When may a jury be impeached?
(1) Only by external influence such as bribes or outside investigations and (2) causes harm to a party.
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What is required for a bench trial verdict?
(1) facts, (2) law, (3) winner, (4) relief.
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What is JMOL?
Judgment as a Matter of Law or "directed verdict."
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What is required for JMOL?
At trial, before jury deliberation, the evidence shows no reasonable people could disagree viewing it most favorably to the non-moving trial.
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When can a party motion for JMOL?
After the other party has been heard.
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What is the soonest a defendant can motion for JMOL?
Defendants can move for JMOL as soon as plaintiffs finish presenting evidence without needing to respond.
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What is a Renewed JMOL?
The same as a standard JMOL, but done after a jury verdict.
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What is required for RJMOL?
(1) Within 28 days after entry of judgment, (2) after an JMOL, (3) on the same grounds.
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When does a motion for new trial apply?
Non-harmless error that makes the judge believe a new trial should be granted
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When can remmmittur or new trial occur?
Damage figure shocks the conscience. The court must give the plaintiff the choice of accepting the lower amount or going through a new trial.
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What is the effect of the 7th amendment on damages?
(1) Federal court may not unilaterally remit damages without the consent of the plaintiff. (2) Additur is never allowed in federal court.
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What are the reasons a judgment may be set aside?
(1) Harmful error (2) fraud (3) newly discovered evidence undiscovered with due diligence that existed at the time of trial made (4) void judgment.
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When may the movement to set aside be made?
Within one year unless it is void for lack of PJ or SMJ.
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What cases may be appealed?
Any order that is a final judgment.
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When is there a final judgment?
If the court does not have anything else to determine on the merits.
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What is the nature of a denial?
Denials are not considered final judgments.
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How should a notice of appeal be filed?
(1) Within 30 days (2) in the district court.
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What is the interlocutory appeal conditions?
(1) Allows a non-final order may be appealed if a district judge certifies it involves a controlling issue of law (2) as to which there is a substantial ground for difference, (3) and the court of appeals agrees to hear it.
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When may an appellate court hear a collateral?
(1) If it is a question of law, (2) unrelated to the material issues, (3) that could not be reviewed if there was a judgment.
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What is the effect of multiple parties?
Unless the district court expressly enters final judgment of a summary judgment where there is no reason for delay then an appeal may be allowed despite pending issues.
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What is the appealability of class actions?
The court of appeals has the discretion to review the certification or denial of a representative.
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What is the extraordinary writ?
An order filed with the court of appeals to vacate a judgment by the district court when the district court is violating a clear legal duty.
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What are the standards of Review?
(1) De Novo, (2) Clearly Erroneous, (3) Abuse of Discretion
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What is the standard for questions of law?
De Novo
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What is De Novo?
No deference is given to the judge or judgment of the district and reviews as if a new.
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What is the standard for questions of fact at bench?
Clearly Erroneous
283
What is clearly erroneous?
The court of appeals looks at the evidence giving deference to the judge and only overturns if there is no way to reasonably conclude the issue.
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What is the standard for discretionary matters?
Abuse of Discretion
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What is Abuse of Discretion Standard?
Generally going to affirm unless the judge abused their discretion.
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When is no reversal required despite error?
If the error is harmless.
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What is claim or issue preclusion?
When a judgment on the merits already entered precludes an issue or claim on a later case.
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How is issue preclusion decided by different judicial system?
The second case will apply the law of preclusion from the judicial system of the claim in the first case.
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What is the first phase of preclusion?
Claim preclusion -> Issue Preclusion
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What is re judicata?
Claim preclusion
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What are the requirements for claim preclusion?
(1) Same Plaintiff v. Same Defendant, [same parties, same configuration], (2) Valid final judgment on the merits. (3) Must be the same claim. Federal & Majority: Same transaction or occurrence. Minority: Primary rights as separate claims for personal injury & property damage.
292
When is a judgment not on the merits?
(1) lack of jurisdiction, (2) improper venue, or (3) indispensable party.
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Is a default judgment on the merits?
Yes.
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What is another name for issue preclusion?
Collateral estoppel
295
What is issue preclusion?
(1) Valid, final judgement, on the merits, (2) the same issue was actually litigated, (3) essential to the judgment of the prior issue, (4) in privity to the party, (5) non-mutual issue preclusion.
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What is nonmutual issue preclusion?
A person asserting preclusion to avoid liability when they were not a party to the first case.
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When is non-mutual issue preclusion considered fair and thus allowed?
(1) party to be bound had a full opportunity to litigate in first case, (2) party to be bound had an incentive to litigate in the first case, (3) easily could have intervened, (4) no inconsistent findings on this issue.
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What are the types of PJ?
(1) In personam, (2) in rem, (3) quasi in rem
299
What is in personam PJ?
Court may render judgment against an individual based on contacts with forum state.
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What is in rem PJ?
Jurisdiction over property or status located in the forum state including ownership.
301
What is quasi-in rem?
Property is located in forum state and is attached for some reason not necessarily involving the property in an action against the defendant and his assets due to fears the defendant will flee the jurisdiction. A court may render judgment as to persons with respect to the property within that state.
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What are the statutory allowances of PJ?
(1) service of process, (2) domicile, (3) consent, and (4) long arm.
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Is diversity PJ or SJ?
It is SJ and thus can be dismissed at any time.
304
What jury rules apply in federal court?
Federal Procedural Law so long as it is consistent with Rules Enabling Act.
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If a judge orders a pre-trial settlement conference and one party does not appear, what may the judge do?
The judge can order the non-appearing party to bear the appearing costs of the appearing party.
306
May a defendant sue on an unrelated issue as part of a counterclaim?
Yes, it is a permissive counter claim.
307
When may a court grant the opportunity to opt-out of a class action settlement?
If it is a "common question" the judge may refuse to approve a settlement unless the class members assent or are given a second chance.
