Purple Flashcards
(112 cards)
1
Q
What is a rule 26(f) conference?
A
At least 21 days before the courts scheduling order, the parties meet and confer to discuss the production of:
Disclosures Claims Defenses Settlement Discoverable information
2
Q
What is the scope of discovery?
A
Any non privileged material relevant to the claim or defense and proportional to the needs of the case.
3
Q
When are amendments allowed after time expires?
A
With court permission if justice so required and the additional claim relates to the initial one.
4
Q
What is the function of an impleader (third party claim)?
A
Brings in a new party for indemnity or contribution. TPD has 14 days to respond.
5
Q
What are work products?
A
Material prepared in anticipation of litigation.
Note: may only be discovered by opposing counsel if there is a substantial need for the evidence and undue hardship.
6
Q
Five places where PJ applies:
A
- The person is present in the state.
- Person is served with a complaint when physically in the state.
- They are domiciled in the state.
- They consent to be sued there.
- Long arm statute grants jurisdiction and there are minimum contacts.
7
Q
What is the justification for minimum contacts?
A
The maintenance of the suit does not offend the traditional notions of fair play and justice so that D could reasonably anticipate being required to litigate in the state.
8
Q
What is in rem jurisdiction?
A
Jurisdiction over an object/property.
9
Q
What is quasi in rem jurisdiction?
A
Going after property to satisfy a judgment against the individual.
10
Q
Four types of service on an individual:
A
- Personal service on anyone at least 18 and by a non-party to the suit.
- Substituted service at D’s abode on someone of suitable age who resides there.
- Service on an agent.
- State law methods (mail) as long as D returns acknowledgement.
11
Q
Two types of service on a business:
A
- On an officer or agent.
2. State law methods
12
Q
What is the geographic reach of service?
A
In the limits of the state where the district court is located or anywhere allowed by long arm statute.
13
Q
Two requirements for federal questions cases:
A
- The claims rises from federal law.
2. Determined by a well pleaded complaint in which the FQ appears.
14
Q
Two requirements of diversity cases:
A
- The litigants are diverse.
- The amount in controversy exceeds $75,000
Note: tested at filing
15
Q
Where is the citizenship of a corporation?
A
Any state they are incorporated or where their principal place of business is.
16
Q
What is removal?
A
Procedure allowing D to move the case from state to federal court within 30 days.
Note: P can never remove and the case must removed to the federal court in the same state as the original case.
17
Q
When will the 1 year time limit for removal be allowed?
A
Will be permitted in a diversity case if non diverse parties are dismissed and the requirements of diversity are met.
18
Q
When must P remand?
A
Within 30 days of removal notice.
19
Q
When can the court use supplemental jurisdiction?
A
If the case arises from the common nucleus of operative fact as the claim that exists in federal court.
20
Q
What is the Erie doctrine?
A
Federal judges must apply the state law in a diversity action of the law it sits if the issue is substantive and it is not a federal procedure rule.
Note: Venue is procedural Pre-trial motion is procedural Statutes of limitation is substantive Granting of a new trial is substantive if the award was excessive or inadequate.
21
Q
What are the three possible venues:
A
- Any district where all the D’s reside, 2. Where a substantial part of the claim arose
- A substantial part of the property is located.
22
Q
When will the court transfer from a proper venue?
A
If all the parties consent and the court finds cause for the transfer.
23
Q
Two things the court may do if there is transfer from an improper venue:
A
- Transfer in the interests of justice.
- Dismiss
Note: venue is considered waived unless a timely objection is made to the improper venue in the pre-answer motion.
24
Q
What is forum non conveniens?
A
The court has discretion to hear the case in another country if the other country proxies a more efficient and fair forum.
25
Complaint in FQ cases commences:
The action and the SOL. Service must be within 90 days.
Note: failing the 90 SOL can be overcome with good cause.
26
Complaint in diversity cases begins when:
Either the complaint is filed or process is served.
27
Three things a complaint must contain:
1. Ground for SMJ
2. Short and plain statement showing P is entitled to relief
3. Demand for relief
28
When must D respond to the complaint?
Within 21 days by motion or answer. 60 days if D has waived service.
29
Five times a pleading may be amended:
1. P may amend once no later than 21 days after D serves response.
2. D may amend once no later than 21 days after serving it.
3. Amendments after time expires is allowed with court permission.
4. Evidence at trial doesn’t match what was pleaded.
5. Amendment after the SOL have run within 90 days.
30
What is the rule 11 signature requirement?
Signed papers that certify to the best of your knowledge:
1. The paper is present for proper purpose
2. Legal contentions are warranted by law
3. The contentions have evidentiary support
31
What is joinder?
P may join as many claims as P has against D.
Note: must be SMJ
32
Three questions for compulsory joinder:
1. Is the absentee required?
2. Can they be joined?
3. Can trial proceeds without them?
33
What is a counterclaim and when must it be filed?
Any claim against the complaining party. Must be within 21 days of service.
34
What is a cross claim?
Claim against a co-party arising from the same transaction or occurrence.
35
What is an impleader?
Brings in a new party for indemnity or contribution. May be implead if the non party is liable for any part of the judgment.
Note: the third party has 14 days to respond.
36
What is interpleader?
One party owes something to two or more people and the party can force the others to fight out how much is owed amongst themselves.
37
Three requirements for class actions:
1. Numerosity
2. Commonality
3. Typicality
38
What must be disclosed before the rule 26(f) conference?
Within 14 days:
1. Names of people with discoverable information
2. Documents to be used
3. Computation of damages
4. Insurance coverage
39
What is a deposition?
Live testimony of parties or non-parties under oath given in response to questions by counsel.
Note: no more than 10, cannot depose the same person twice.
40
What are interrogatories?
Written questions to be answered in writing under oath
Note: limit to 25 and must answer within 30 days.
41
What is a request to produce?
Asks a party to make available documents or to permit entry on property.
Note: disclosing party must respond in writing within 30 days
42
What is a request for admission?
Written request asking the opponent to admit facts. Must respond within 30 days.
43
Three things an applicant for preliminary injunction must show:
1. Irreparable harm
2. Likely to win on the merits
3. Balance of hardship favors them.
44
A TRO may be issued ex parte if:
1. Irreparable harm will be suffered
2. Lawyer certified in writing efforts to give notice to D.
Note: must be within 14 days.
45
Two types of dismissal:
1. Voluntary: first is without prejudice, second needs court approval.
2. Involuntary: court dismisses for failure to state a claim, obey a court order, or prosecute.
46
After how many days may P seek a default judgment?
If D does not respond within:
1. 21 days after service
2. 60 days if process is waived
47
4 requirements for a clerk to enter default judgment:
1. D made no response
2. Claim for the sum is certain
3. P gives an affidavit for the amount owed.
4. D is not a minor or in competent.
48
When must a jury be demanded?
Within 14 days after the last pleading related to the issue is served or else the demand is waived.
49
What is a JMOL?
Judge grants and the case will not be submitted to the jury. The motion can be made after the opposing party has been heard.
50
What is an RJMOL?
Comes up after trial and the jury returns the verdict.
Note: JMOL must have been raised at some point
51
What will allow a new trial motion to succeed?
Newly discovered evidence that could not have been discovered provided the motion is made within a reasonable time not to exceed one year.
52
What is remittitur?
P can either remit part of the damages or face a new trial.
53
When must a notice of appeal be filed?
Within 30 days to the district court and must object to issues at law.
Note: only a final judgment may be appealed.
54
6 judgments that are not final and cannot be appealed:
1. Decision on lack of jurisdiction
2. Improper venue
3. Failure to join a party
4. One judgment of many is closed
5. Denial of a motion for summary judgment Is not appealable until after trial.
6. Granting of a new trial
55
3 things that may be appealed:
1. Orders related to injunctions
2. Certification/denial of a class action
3. Collateral order if the issue is distinct from the merits, involves an important legal question, and is unreviewable if the parties wait to final judgment.
56
How are questions of law reviewed?
De novo
57
What standard is used for determinations of fact?
Clearly erroneous standard
58
What standard is used for rulings on discretionary matters?
Abuse of discretion
59
3 requirements for a claim to be precluded (res judicata):
1. Same P and same D or anyone in privity
2. Final judgment on the merits
3. Same claim arose from the same occurrence
60
In claim preclusion where P won the earlier suit, the claim is ____ and P cannot sue.
Merged
61
In claim preclusion where D won the earlier suit, the claim is ____
Barred
62
4 requirements of issue preclusion (collateral estoppel)
1. Valid final judgment on the merits.
2. Same issue was actually litigated and determined.
3. Issue was necessary to judgment.
4. Can be used only against the previous party.
63
What is defensive issue preclusion?
A person asserting preclusion to avoid liability was not a party in the first case.
64
What is offensive issue preclusion?
The person asserting to support the claim was not a party to the first case. New P, same D
65
In what type of claim can a trial by jury not be used?
Equity claims
66
When must a PJ defense be raised?
In the pre-answer motion
67
What is required for a party seeking sanctions?
A separate motion, which cannot be filed if the claim or defense is corrected within 21 days of service
68
Two requirements for PJ:
It must fall within the statute and satisfy the constitution.
69
What is specific jurisdiction?
PJ over D in the instant case only.
70
Two things required for interlocutory review:
1. Trial court certifies in writing that there is a question of law to which there is substantial ground for difference of opinion
2. The COA agrees to allow the appeal
71
What is the standard for JMOL?
Reasonable people could not disagree with the result.
72
When will an amendment be allowed to add a party after the SOL have run?
If the failure to add a party is the result of mistaken identity.
73
Are cross claims ever compulsory?
No
74
When will a motion for summary judgment be granted?
There is no dispute as to a material fact.
75
When may a TPD assert a claim against the original P?
If the claims arises from the same transaction or occurrence, they may assert a claim in an independent action.
76
When must you raise a motion to dismiss for lack of personal jurisdiction?
In the first response or pre-trial answer
77
3 requirements for an amendment to relate back:
1. Amendment concerns the same conduct, transaction, or occurrence
2. D has knowledge within 90 days
3. D knew or should have known that P made the mistake.
78
Is an order granting certification of a class action immediately repealable?
Yes
79
4 requirements for a Supreme Court to review a decision from a state court:
1. Final judgment
2. Highest state court
3. Substantial federal question
4. Decision must not rest on adequate and independent state grounds
80
For which peremptory challenges are not allowed?
Any based on race
81
What will a party who prevails on a discovery motion recover?
The costs and fees in asserting that motion
82
Which state is followed regarding rules for service?
Either the state in which the federal court sits or the state in which D will be served
83
When may interrogatories be requested?
After the parties arrange initial disclosures and prepare a discovery plan.
84
To whom are leading questions generally not permitted?
On direct examination of a disinterested witness.
85
Yes under the prevailing view as long as they were foreseeable.
86
How is citizenship determined in class action suits?
Diversity of citizenship is based on the named parties only.
87
When must a motion be made to relieve a party from a final judgment based on fraud/misrepresentation?
Within one year
88
What does FRCP 11(c) say?
The court has discretion to impose sanctions limited to what is sufficient to deter repitition of such conduct
89
May a court impose a monetary sanction on a represented party on grounds of an attorney violation?
No; it is only applicable to the attorney
90
Must the representative of a class have a claim typical of the rest?
Yes because P is supposed to represent the common interest of the class.
91
When must a party not file a motion for sanctions?
If the challenged claim is withdrawn within 21 days of service.
92
Is a non-unanimous or less than 6-person jury verdict permitted?
Yes if stipulated by the parties
93
2 things that create a presumption of bias that merits striking a potential juror for cause:
1. Stock ownership
| 2. Having worked for or having a spouse work for either litigant
94
What types of cases does the Erie doctrine apply to?
Federal question cases; NOT diversity cases
95
What is the standard of review for an RJMOL?
Whether there is substantial evidence in the record to support the verdict
96
5 things a rule 11 motion for sanctions does not apply to:
1. Disclosures
2. Discovery
3. Reponses
4. Objections
5. Motions
97
What is the standard for a grant of a motion to a new trial?
The jury verdict was against the weight of the evidence.
98
What is required in a final judgment in a non-jury trial?
A specific finding and must state conclusions in support of the judgment.
99
When may a claim under the 7th amendment be raised?
In FEDERAL court in suits at common law
100
2 things that must be in the service of process:
1. The complaint
| 2. A summons
101
When may a federal common law defense preempt state law?
If a unique federal interest is at stake
102
What is a forum-selection clause?
It represents a clear parties' agreement as to the most proper forum and it will be enforced by means of a motion to transfer in the interest of justice.
103
What governs privilege regarding a claim or defense?
The state law
104
What is a title insurance policy and its purpose?
It is a contract of indemnity and it insures the individual named in the policy and his heirs and devisees so long as the named insured or his heirs or devisees own the insured property.
105
Will state or federal law apply when preclusion choice of law applies in the second case?
Federal law by a federal court sitting in diversity.
106
When ruling on JMOL, what must a court review?
The evidence in favor of the non-moving party
107
May a judge on their own order a new trial?
Yes for any reason
108
When may you make a motion to dismiss for lack of SMJ?
Anytime no matter what stage the action is at.
109
What is required to have a scheduling order modified?
A moving party must show good cause
110
What is permissive joinder?
Allows D's to be joined together in the same suit if the cliams come from the same transaction or occurrence and there is a question of law or fact common to all parties.
111
If D chooses not to waive service and does not show good cause, what is the result?
He will incur costs imposed by the court based on making service and any motion associated with collecting costs.
112
When may a final pre trial order be amended?
Only to prevent manifest injustice
