FRCP + CA CP Flashcards

Question

Remand

Answer 1

ONLY P Fed → state bc removal was improper 30 days of removal (no limit if no SMJ)

Answer 2

Use State substantive Always sub = SOL, elem of c/d, CoL rules, SoL tolling rules

Answer 3

Valid fed law? → apply No → use tests Outcome determinative balance of interests forum shopping avoidance

Answer 4

Proper where claim arose or property is located Where any D resides Fallback prov-- no D resides = any district where D subject to PJ

Answer 5

K - entered/perf PI/WFD- injury Local action - prop

Answer 6

K - entered/perf PI/WFD- injury Local action - prop

Answer 7

Any party/ct has discretion OG Proper = transf in int of justice (public vs private) OG Improper = transfer to proper venue or dismiss (parties can waive improper)

Answer 8

Fed-- another ct where could have been filed OR all parties consent (+PJ/SMJ) CA- any time at judges's disc-- to where int/conv would be served

Answer 9

Fed-- dismiss/transfer CA-- transfer

Answer 10

Other court = gravity Fed- MAY dismiss/stay (public vs private) CA- MAY dismiss or stay (int of justice; alt forum suitable; P&P)

Answer 11

Allowed both Fed/CA

Answer 12

Reas calculated under all circ to notify all parties to the action

Answer 13

Summons + Complaint Within 90 days (fed) Anywhere in FS (OOS if okay by law) Anyone not a party to the case and + 18 Dismiss with prejudice if not met

Answer 14

Personal Substituted (abode) Agent Mail State law methods (where fed ct sits or service effectuated)

Answer 15

Only if personal service cannot be completed + household member +18 / inform of contents / mail copy to party

Answer 16

Officer manaager/GA

Answer 17

State law method in state where service to be made

Answer 18

If Service waived-- gets three extra days

Answer 19

P req D waives D denies/fails – P use other method D agrees-- gets 60 days from date waiver sent to answer

Answer 20

Method allowed by international agreement no agreement-- as directed by US ct; or reas calc to give notice method by FC law method by foreign official in response to letter rogatory PS in the FC (unless prohib) mail sent by clerk of US ct req signed receipt (unless prohib)

Answer 21

Serve D through reg mail-- if D waives formal SoP CA-- allows publication if nothing else

Answer 22

Unless waived, process serve files report with court detailing how service made + Service processer gives affidavit

Answer 23

Within state where fed ct sits o/s state if state allows

Answer 24

PI – Moving party will suffer irreparable harm w/o + likely to succeed on merits TRO- prevent immediate, irrep harm (expires in 14 days; show you tried to give notice; imm appealable)

Answer 25

All attys must certify all docs-- contentions are warranted by law + factual contentions have evidentiary support

Answer 26

Ct can issue on its own, or motion (hearing req)

Answer 27

21 days to fix disc problems before violation imposed

Answer 28

Fed/Notice Pleading: S&P stmt of facts = enough info to put OP on notice + demand for relief + relief sought CA/Fact Pleading: ultimate facts to each element + demand of relief for each claim + ID parties (PI/WFD/Punitive stated specifically)

Answer 29

Plead with particularity: Fraud/mistake/spec dmgs/judgments or official docs to be relied on

Answer 30

Respond to each allegation – Admit/Deny allegations/lack suff info to admit/deny Assert affirmative defenses (Must also include counterclaim if compulsory) 21 days of service of process/14 after rule 12 ruling

Answer 31

Contrib negligence claim preclusion SoF Fraud SoL SD

Answer 32

Lack of SMJ **Lack of PJ** **Improper Venue** **Insuff Process** (CA to quash) **Insuff SoP** Failure to state a claim (CA GD/J on pldgs) Failure to join necessary party (FRCP any time bf; CA SD pldg uncertain)

Answer 33

Complaint too vague/ambiguous + P cannot reas respond D MUST make bf answering CA + SD - pleading is uncertain

Answer 34

D can MTS from complaint any redundant, immaterial, impertinent, scandalous material CA- AntiSlapp

Answer 35

D vs P (table) Must have jx (could be sjx) Compulsory – same t/o + req in answer or waived Permissive - diff t/o; not req in answer

Answer 36

P vs D1 + D2 → D1 cross claim on D2 Same T/O Never compulsory Sjx

Answer 37

Fed - P = 1 w/in 21 days of serv/after resp or PA motion (ow leave of ct) D= once not later than 21 days - answer CA P = once bf answer/dem filed OR after dem filed but bf hearing (ow leave of ct)

Answer 38

Pleading failed to state sufficient date to constitute CoA Lacks SMJ

Answer 39

Uncertain pleading Complaint unclear Lack of legal capacity to sue Existence of another case between P + D with same CoA Misjoinder Failure to plead K oral or written Failure to file req certifications

Answer 40

Special Appearance + sep from answer either bf or concurrently with motion to strike answer Lack of PJ; Insuff Process; Insuff SoP

Answer 41

Ev at trial does not match what was pleaded

Answer 42

Fed RB and same T/O as og pleading

Answer 43

Fed Amend D-- RB + same t/o+ new party knew of og claim and not prej in defending + bf mistake would have been included (90 days) CA- Doe Og complaint timely + included alleg against Doe + P gen ignorant as to id + facts giving rise to CoA → P can sub name within 3 years

Answer 44

P looks to join Joining a P = if they are willing Joining a D = if P moves for

Answer 45

within 21 days op has 14 days to respond

Answer 46

only with written consent of op + eave of court (motion) granted if justice requires

Answer 47

Same T/P + Common q of law or fact + ct has jc over parties and claim

Answer 48

Without ct cannot grant complete relief NP has nec legal interest that creates risk of mult oblig NP has interest that may be impaired

Answer 49

Absentee joined as NP – if PJ over + will not destroy diversity CJ FORCES party in

Answer 50

NP cannot be joined-- ct asks alt forum? likelihood of prej to partues? shape relief w/o? P adeq remedy if case dismissed?

Answer 51

D wants to join someone who may be liable to him for all/part PLEASE PAY D files TP complain within 14 days of answer → Permission from ct D's claim must be derivative of suit (no- if TPP only liable to P and not d1)

Answer 52

NonParty wants to join in Intervention LETS party in

Answer 53

Ab's int will be harmed if not joined and no existing party will adeq rep him + Ab has unconst statutory right

Answer 54

Court has discr where: Ab has c/d shares common Q Ab has const stat rt ab = gov officer/agency and existing claim relates to o/a (Ct should consider whether delay)

Answer 55

PROPERTY holder can compel mult claimants into one suit Statutory: on cl div from at least one other cl and AIC +$500 Rule 22: CD and AIC +$75K

Answer 56

Anti Prjudice Inj/decl judgment Dmgs

Answer 57

Gets you SMJ any cm div of any opp party + aggreg claims +1 mil Never for – less than 1-- cb, sh claim against corp mgmt; state sec claims

Answer 58

Ct- early practicable time define class + appt counsel can appeal ILA bf FJ judgment-- binding to all cm unless opt out Settlement - ct must approve

Answer 59

Broader than admissible to start → meet and confer (at least 21 days bf SC) + initial discl + scheduling conf

Answer 60

Disc if not priv relevant to claim proportional to needs of case

Answer 61

Sources of disc info dmgs insurance within 14 days M&C (joined parties/30)

Answer 62

90 days before trial Expert + report

Answer 63

30 days before trial detailed info about ev to be used

Answer 64

not mandatory-- done by agreement + relevant SM

Answer 65

Written Q resp- 30 days Fed - no more than 25 w/ sub UOA CA- 35 max unless ct permits ow

Answer 66

Q- written/oral party- notice; non party -subpeona Limits- fed 10 unl ct grants more (no more than 1 7 hr day) and CA no limits distance- fed no more than 100 miles from empl subject to rules of ev

Answer 67

Written request- party make docs avali 30 days after service non party compelled via subpeona

Answer 68

Opp party shows jury resp- 30 days resp party - admit/deny/lack suff knowledge of

Answer 69

Ct request req + condition at issue

Answer 70

Made btwn A + C Intended to be, and was, kept conf To facilitate legal services

Answer 71

Prepared for or in anticipation of litigation NOT disc unless OP shows: subst need + undue hardship to obtain on their own

Answer 72

Limits disc material sought by party seeking to limit highly embarrassing, trade secrets, o/s scope STD = GC

Answer 73

P gets one before D serves answer or MSJ without prejudice

Answer 74

Required if answer/motion has happened already Ct has discretion W/o prej UO stated by ct CANNOT assert if pending counterclaim

Answer 75

D fails to plead- 21 days being served (60/waiver) Clerk: D not resp at all; claim for $ dmgs; affidavit of sum owed; d not minor/incompetent Judge: ^ not met/ D did respond (d may be entitled to hearing) Recovery = demand in complaint Set aside- if GC for 1 yr

Answer 76

Burden - moving party → no gen issue of mat fact + entitled to jdgt as MOL Shift – Non party to show if triable issue exists Evidence-- in light most favorable to non moving party Partial allowed

Answer 77

7th Amendment In any pleading - within 14 days service of last pleading of triable issue (or waived) 6 min/12 max (if 6-unan) Law + equity – jury rt does not extend to equity

Answer 78

For cause: Fed each side unlimited; CA each party unlimited Peremptory Fed: 3; CA :6 + CA crim ¾ and Crim unan

Answer 79

Parties submit at close of ev ct informs of chosen and rejected Raise bf jury charged objection- make on record/away from jury (w/o ct- plain error)

Answer 80

Gen - decides + amt Special - decides + factual findings submitted by Q by ct Gen with Interrogatories - gen + spec Qs

Answer 81

Before case submitted to jury Reas jury has no reason to disagree as to result

Answer 82

Same as JMOL and RJMOL-- can raise without preserving through JMOL

Answer 83

Only if preserved with JMOL before end of trial same standard 28 days after entry of judgment

Answer 84

28 days after judgment prejudicial error Prejudicial misconduct J against weight of evidence newly disc evidence excessive/inadeq dmgs

Answer 85

Mistake/exc neglect (one year of j) new ev not disc at trial (one year of j) Fraud/misrep/ OP misconduct (on year of j) J void (reas time) J satisfied or discharged (reas time) Any other reason justifying relief (reas time)

Answer 86

30 days after j Q of Law- De novo Q of fact - not disturbed unless jury - reas jury would not reach or nonjury + clearly erroneous Mixed - de novo disc matters- abuse of distrction

Answer 87

Appeal only from FJ Exc: Inj; certif of class action; orders involving debatable q of law

Answer 88

reviewable as of right Inj receivers (appt of) patents property where collateral order exception apples bc too distinct from merits of case + too imp to be denied imm review + unreviewable if waited

Answer 89

Same Claim and Same Parties FJ on Merits on claim

Answer 90

Same issue issue essential to the J and Issue actually litigated FJ on the Merits asserted against party to previous case

Answer 91

Mutuality = only parties to prior litigation can assert IP Non = privies can assert

Answer 92

Offensive: P to prevent D from relitigating when D lost C1 against different P (Ct will balance) Defensive: D seeks to prevent P from relitigating when P lost in C1 against diff D

FRCP + CA CP Flashcards

(118 cards)