Litigation Process/FRCP Flashcards
(147 cards)
1
Q
What must a complaint include?
A
1) a short statement of the grounds for the court’s jurisdiction; 2) a short statement of the claim showing the plaintiff is entitled to relief; and 3) a demand for judgment for relief (which may be in the alternative).
2
Q
If a defendant waives service of process, what else does she waive?
A
Nothing. A defendant waiving service of process does not automatically waive the right to object to venue or personal jurisdiction.
3
Q
How consistent must the pleadings of a party be?
A
Not at all consistent. A party may set forth as many claims and defenses as they may have in their pleadings regardless of their consistency.
4
Q
What must be present in order for named representatives to sue on behalf of a class in a class action lawsuit?
A
Questions of law or fact that are common to the entire class.
5
Q
What types of sanctions can be levied on parties under Rule 11 of the Federal Rules of Civil Procedure?
A
Monetary penalties and nonmonetary penalties.
6
Q
To whom can Rule 11 sanctions be extended?
A
Parties, lawyers and law firms.
7
Q
When must the representatives of a class notify the class of a dismissal or settlement of the class action lawsuit?
A
When the judgment binds the class. If the judgment does not bind the class, the representatives need not inform the class of the settlement.
8
Q
In a federal question case, when is the action considered as being commenced for Statute of Limitations purposes?
A
When the action is filed with the federal court.
9
Q
What rule governs interpleader?
A
Rule 22 of the Federal Rules of Civil Procedure
10
Q
What is the source of statutory interpleader?
A
28 U.S.C. 1335
11
Q
What does it mean to implead someone?
A
To bring another party into the lawsuit which is on the same side as you. A defendant may implead a third party defendant.
12
Q
What does it mean to interplead someone?
A
To bring another party into a lawsuit who opposes you. A plaintiff may interplead a third party defendant.
13
Q
A class action lawsuit founded on diversity jurisdiction may go forward as long as . . .
A
any named class representative’s claim exceeds $75,000.
14
Q
Supplemental Pleading —
A
a pleading relating to matters accruing after the date of the original pleading.
15
Q
Intervention of Right —
A
where an applicant for intervention has an interest in the property or transaction which is the subject of the suit and whose ability to protect such interest might be impaired by the disposition of the action; i.e. the suit involves her property or something she has an interest in and she is a stakeholder in the outcome of the case.
16
Q
Who issues a default judgment?
A
The Clerk of the Court
17
Q
What is required for the Clerk of the Court to issue a default judgment?
A
The defendant cannot be an infant or incompetent; the plaintiff’s claim must be for a sum certain; and the default must have been entered because the defendant failed to appear in court.
18
Q
A, a resident of Kansas, sues B, a resident of Missouri. The suit is filed in federal court and is therefore subject to federal civil procedure. Which state’s law governs the service of process on B?
A
Missouri law. Federal Rule of Civil Procedure 4 permits the service of process in accordance with the law of the state where the defendant is domiciled.
19
Q
What must a 3rd party defendant do after having been impleaded by the defendant? What may he do?
A
After being impleaded by a defendant, a third party defendant must assert any compulsory counterclaims which arise out of the same common nucleus of operative fact and may assert any permissive counterclaims. The permissive counterclaims must meet the jurisdictional requirements, but need not arise out of the same common nucleus of operative fact as the original claim.
20
Q
What is the overall test for determining whether there is personal jurisdiction?
A
1) is there a state statute granting personal jurisdiction; and 2) does personal jurisdiction satisfy the Constitution?
21
Q
What does notice consist of?
A
A summons and a copy of the complaint.
22
Q
If the D is to be served in the USA, service is to take place within how long?
A
Within 90 days of the complaint being filed with the court.
23
Q
If the D executes and mails a waiver form to the P within ________ days, the D waives formal service of process.
A
30
24
Q
If the D waives formal service of process, does D waive any defense like lack of PJ?
A
No
25
When D signs and mails the waiver form back to P, what does P do?
Files it with the court.
26
If D fails to return the waiver form, and there is no good cause for having not returned the waiver form, what is the D liable for?
The cost of service of process.
27
What happens if a process server fails to file an affidavit regarding his serving process on someone, what happens?
Nothing. It is still valid service.
28
When might someone be immune from service of process?
When that person is in a jurisdiction because they are a party, witness or attorney in a case in that jurisdiction. That is the only reason they are present in the jurisdiction.
29
How are other documents, like discovery, motions, etc. delivered to the other side?
Delivery or mail. You can also do it by email if you agree to do that.
30
Most claims under __________ law can be heard by state courts.
federal
31
There are three matters which, when a plaintiff writes a complaint, must be described in more detail than other causes of action. What are these causes of action?
Fraud; mistake; special damages.
32
What are the methods by which a defendant can respond to a plaintiff's complaint?
1) by motion; or 2) by answer.
33
A defendant has how long to respond to a plaintiff's complaint?
21 days if service of process was not waived; 60 days if waived.
34
Motions are not ______________.
pleadings
35
Answers are ______________.
pleadings
36
What must a defendant do in their answer?
1) respond to allegations of the complaint; and 2) raise affirmative defenses to the allegations.
37
The plaintiff and defendant both have right to amend their pleadings (complaint and answer, respectively) how often and within what time period?
Once; within 21 days of serving their complaint/response.
38
What happens if either party does not have a right to amend their pleading?
They must seek leave of court.
39
Where the evidence at trial does not match with the allegations made in the pleadings?
The court will grant that party leave to amend their pleading.
40
Under what circumstances can a plaintiff add a claim to their complaint after the statute of limitations has run on that claim?
The court will allow adding the claim to the complaint if it "relates back;" i.e. if the added claim concerns the same conduct, transaction or occurrence as the original pleading.
41
When can a plaintiff or defendant add a defendant after the statute of limitations has run on the cause of action?
If the addition of the defendant 1) concerns the same conduct, transaction or occurrence as the original; 2) the new party knew of this case within 90 days of filing; and 3) she also knew or should have known that, but for a mistake, she would have been named originally.
42
Must all potentially responsible defendants be joined in an action?
Never.
43
A necessary party can only be joined in a case if their joinder is ______________.
feasible; i.e. 1) there is PJ over you; and 2) joining you will not goof up diversity jurisdiction.
44
If a joinder is found to be feasible, what will the court do?
It will join you!
45
What happens if an absentee party is found that it cannot be joined due to lack of personal jurisdiction or another reason?
The court can 1) proceed without the absent party; or 2) dismiss the whole case.
46
Counterclaim —
a claim against an opposing party who has already made a claim against you. Ex: P sues D. D sues P back. D suing P back is a counterclaim.
47
What types of counterclaims are there?
Compulsory counterclaims and permissive counterclaims.
48
Compulsory Counterclaim —
A counterclaim which arises out of the same transaction or occurrence as the plaintiff's original claim. These *must* br brought against the plaintiff or the defendant loses their right to assert it.
49
Permissive Counterclaim —
A counterclaim which does not have to be asserted in that particular case because it does not arise out of the same transaction or occurrence as the plaintiff's original claim.
50
Must a counterclaim meet the requirements for subject matter jurisdiction?
Yes. All counterclaims must be assessed as to whether they meet the requirements for subject matter jurisdiction.
51
Crossclaim —
a suit against a co-party which arises from the same transaction or occurrence as the plaintiff's original claim. These are not compulsive. You can bring these separately.
52
Must a crossclaim meet the requirements for subject matter jurisdiction?
Yes. Literally every claim must meet the requirements for subject matter jurisdiction. If it does not, try supplemental jurisdiction.
53
In regards to discovery, what must each party disclose to the other side?
Identities of persons who have discoverable information that you can use to support your position; documents or objects you may use to support your claims or defenses; a computation of relief and documents support it; and insurance coverage.
54
What happens if a party fails to disclose something she was required to disclose as an initial disclosure?
That party cannot use that material in their case.
55
Must you disclose an expert who helps you put the case together, but who you do not intend on having testify?
No. They are merely a consulting expert.
56
What must you disclose in regards to an expert witness?
1) the identity of the witness; and 2) a written report by the expert witness describing their findings, opinions, bases for the opinions, facts used to form opinions, their qualifications and how much they are being paid.
57
When may a person take a deposition of an expert witness?
After the written report by the expert has been submitted to the opposing side.
58
Must a side disclose earlier drafts of an expert witness's written report?
No; those are work product.
59
What happens if a side fails to disclose an expert witness?
They cannot use the EW unless their failure was justified or harmless.
60
How long before trial must each side disclose their evidence and witnesses to the other side?
No later than 30 days before trial.
61
How do you get a non-party to submit to a deposition?
A subpoena from the court.
62
What does a subpoena duces tecum do?
Requires a witness to bring documents or objects to a deposition.
63
Unless the other party agrees, what is the farthest you can make a nonparty travel for a deposition?
100 miles from their residence or their employer.
64
What is the maximum number of depositions you can take?
You cannot depose an individual more than twice and you are given ten depositions overall before you start requesting court approval.
65
To whom are interrogatories sent?
Parties, never nonparties.
66
How long do you have to respond to an interrogatory?
30 days from the service of the interrogatory.
67
Are interrogatories asking about the points or contentions being made by the other party in the case OK?
Yes.
68
What is the maximum number of interrogatories you can send to another party?
25 questions.
69
Can you use your own answers to interrogatories at trial?
No
70
Where a request to produce has been received by a party, what must that party do?
They must respond in writing within 30 days of service, stating either that the material will be produced or asserting objections.
71
In order to perform a medical exam on someone, what must you first attain?
A court order
72
What must you show in order to get a court order to have medical exam performed on someone?
You must show 1) the person's health is in actual controversy; and 2) good cause.
73
Who can be ordered to undergo a medical exam?
A party or someone in the party's custody or legal control.
74
Who chooses the doctor to perform a medical exam?
The party requesting the medical exam
75
Can a party who was subject to medical exam receive a copy of the medical exam?
Yes, by requesting it.
76
What must a party do after they request to see the medical exams they were subject to?
They must disclose the medical reports of their own physicians about the relevant medical condition. Additionally, the party waives all doctor-patient privilege on that particular medical issue.
77
What does a request for admission do?
Requests the other party to admit or deny something.
78
If you do not expressly deny something, you are deemed as having . . .
admitted it.
79
Can the responding party say she does not know the answer to a request for admission?
Yes, but only if she states she made a reasonable inquiry and cannot find enough information from which to deny or admit.
80
All discovery requests and responses must be ______________.
signed
81
When circumstances change after you have responded to a request to admit, you must send the requesting party a . ..
supplemental admission.
82
Generally, what is discoverable?
Anything that is 1) relevant and 2) proportional to the needs of the case.
83
Things can be discovered that are not _______________.
admissible at trial.
84
Is privileged information capable of being discovered?
No, unless the other party waives the privilege.
85
Work Product —
something prepared by a party to a case which is *made in anticipation of litigation.*
86
Must work product be made by a lawyer?
No, a party or representative can make work product.
87
When can work product become discoverable?
Work product is discoverable when 1) there is substantial need; and 2) the information contained therein cannot be gained by any other method.
88
Despite the exception to work product not being discoverable, there are certain things which can never, ever be discoverable. These include:
mental impressions, opinions, conclusions, and legal theories.
89
To assert privilege or work product, and therefore render something undiscoverable, you must do what?
You must expressly claim the privilege or work product and describe it in a document for the judge.
90
What can a side do if they believe a discovery request subjects them to annoyance, embarrassment, undue burden, or expense?
The party being requested can ask for a protective order.
91
To receive a protective order from the court, the party requesting the order must make what?
A good faith showing that they have tried to work it out with the other party.
92
What may a party do if the opposing party responds to a request for discovery, but does not fully comply with the request?
Move for a motion to compel discovery.
93
What may a party do if there is no response to a request for discovery?
Seek sanctions.
94
When litigation is reasonably anticipated, both parties have a duty to ______________ discovery.
preserve
95
Preliminary Injunction —
a court order that the defendant do or not do something in order to prevent the defendant from prejudicing the plaintiff's case.
96
What might a party seek in order to preserve the status quo before a hearing has been held regarding whether a preliminary injunction will be granted?
The party wishing to preserve the status quo can move for a temporary restraining order.
97
Can a court order a temporary restraining order without first notifying the defendant?
Yes, but only if 1) the applicant files a paper under oath clearly showing that if the TRO is not issued, he will suffer immediate and irreparable harm; and 2) the applicant's lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant's lawyer.
98
How long is a TRO effective?
14 days. It can be renewed for another 14 days.
99
Can you appeal a decision to grant a TRO?
No
100
What must be shown by the applicant for a preliminary injunction in order to get the order to be issued by a court?
1) he is likely to suffer irreparable harm if the injunction is not issued; 2) he is likely to win on the merits; 3) the balance of hardship favors him; and 4) the injunction is in the public interest.
101
If the court issues a preliminary injunction, the applicant must post a ___________.
bond.
102
Is an order granting or denying a preliminary injunction immediately appealable?
Yes
103
When can a plaintiff make a motion for voluntary dismissal?
Anytime
104
When does a plaintiff have a right* to take a voluntary dismissal by filing a notice of dismissal?
Before the defendant has served an answer or has moved for summary judgment.
105
A plaintiff files a case, and then files a notice of dismissal. The plaintiff later refiles the case and then files a notice of dismissal. What is the result of the second notice?
It is dismissed with prejudice, whereas the first time is was dismissed, it was dismissed without prejudice.
106
When is a default judgment issued? By whom is it issued?
When the defendant does not respond to the complaint within 21 days of being served with process; the clerk of court.
107
What must the plaintiff do when the defendant fails to respond to a complaint?
The plaintiff must make a motion for a default judgment. Otherwise, the plaintiff is assumed to be waiting around for the defendant to finally respond.
108
What must the plaintiff show in order to get a default judgment?
1) show the defendant has made no response; 2) the claim itself must be for a sum certain in money; 3) the claimant must give a sworn statement of the sum owed; and 4) the defendant is not a minor or incompetent.
109
Can the plaintiff ask the court for a default judgment?
Yes
110
A defendant may make a motion to set aside a default judgment, but only if:
1) she shows good cause; and 2) shows a viable defense.
111
What does a Rule 12(b)(6) motion do?
It argues that the plaintiff has failed to state a claim; i.e. that the facts do not align with a cause of action on which the plaintiff can get relief.
112
What does the judge consider in determining whether to grant a 12(b)(6) motion?
Just the facts. No evidence, no conclusions, no law.
113
After the defendant has answered the plaintiff's complaint, the defendant may make a motion which is exactly the same as a 12(b)(6) motion. What is this motion called?
A motion for judgment on the pleadings, because both sides have plead their case.
114
What must a party show in order to be granted a motion for summary judgment?
The moving party must show: 1) there is no genuine dispute on a material fact; and 2) that she is entitled to judgment as a matter of law.
115
How long do you have to make a motion for summary judgment?
No later than 30 days after close of discovery.
116
The court has ______________ in deciding whether to grant a motion for summary judgment.
discretion
117
Can a motion for summary judgment be for partial judgment, such as to liability but allow the case to go to trial on damages?
Yes
118
Can the court look at evidence in deciding to grant a motion for summary judgment?
Yes; it looks at the evidence in the light most favorable to the non-moving party.
119
Motion in Limine —
a pretrial motion to decide whether the jury should hear certain evidence.
120
Does the Seventh Amendment right to a jury trial apply to cases at equity?
No. Therefore, in a case involving both a legal damages claim and equitable relief, the jury will determine the facts as to the damages and not to the equitable relief.
121
What happens when a fact underlies both a claim for damages and a claim for injuntive relief?
The jury will determine the fact.
122
In a trial involving both claims for damages and injunctive relief, which issues will be heard first?
The damages
123
Does the Seventh Amendment apply to state courts?
No
124
What types of challenges are there to jurors?
For cause; peremptory. You get unlimited for-cause challenges, and a limit of 3 for peremptory challenges.
125
What is the minimum and maximum number of jurors allowed in federal court?
Minimum of 6; maximum of 12.
126
Must a jury verdict be unanimous?
Yes, unless otherwise agreed by the parties.
127
Must the parties be allowed to make specific objections to the instructions and to the rejection of proposed instructions?
Yes, on the record and outside the jury's hearing
128
Motion for Judgment as a Matter of Law —
also referred to as a directed verdict, this motion is like a summary judgment motion except that it comes up at trial. It can only be entertained after the non-moving party has been heard.
129
Renewed Motion for Judgment as a Matter of Law —
the same thing as a JMOL except made after the trial.
130
When will a JMOL be issued?
If a reasonable jury could not disagree about a party winning.
131
When will a RJMOL be issued?
If a reasonable jury could not reach the conclusion the jury made.
132
Motion for a New Trial —
judgment is entered, but some error at trial requires that we start over and have a new trial.
133
Remittitur —
a finding that the damages owed to the plaintiff are excessive. In this case, a judge will give the plaintiff a choice: a new trial or reducing the damages to be paid by the defendant.
134
Additur —
a finding that the damages to the plaintiff are insufficient. In this case, a judge will give the defendant a choice: new trial or a larger payment to the plaintiff.
135
Where a plaintiff is offered a settlement, but rejects it, and later receives damages which are not as large as the settlement, the plaintiff is . . .
liable for the cost incurred by the defendant after the offer was made.
136
The loser in a case has a right to appeal from a ________________.
Final judgment
137
A new trial can be granted if the jury's verdict is . . .
a clear miscarriage of justice.
138
Can a judge replace a jury verdict with the verdict he would have reached?
no
139
In determining whether the grant a motion for judgement as a matter of law, a court should weigh the evidence how?
in the light most favorable to the non-moving party.
140
A motion for judgment as a matter of law and a renewed motion for judgment as a matter of law must have what in common?
they must both regard the same grounds. They cannot be made for different reasons.
141
Is the two-dismissal rule affected by a defendant's answering or not answering the plaintiff's complaint?
no. Dismissing a case, refiling it and then dismissing it again triggers the rule, regardless of actions taken by the defendant.
142
Can a person transfer their interest in a case to someone else in order to create valid subject matter jurisdiction, such as diversity jurisdiction?
no. The federal district courts do not have jurisdiction over a civil case where a party has transferred their interest to another in order to establish subject matter jurisdiction.
143
Rule 11 sanctions are paid to whom?
the court, in most circumstances. However, there are situations where expenses will be paid for the other side.
144
Where a person pays Rule 11 sanctions to the other party rather than the court, what will the party pay for?
reasonable attorneys fees and other expenses directing resulting from the violation of Rule 11.
145
Is the credibility of a party an issue on which a motion for summary judgment must be denied?
yes, because the credibility of a party is a material issue of fact, and the motion for summary judgment will be denied where there is a material issue of fact in the case that is unresolved.
146
After a verdict is handed down and the judge enters a judgment, when does the judgment become enforceable?
judgments are enforceable immediately.
147
Are judgments enforceable during a pending post-trial motion?
yes, unless the court otherwise orders.
