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Fall 2022 > Rules > Flashcards

Rules Flashcards

(72 cards)

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1
Q

Title III - Pleadings and Motions

A

Rule 7 - Pleadings
Rule 8 - Rules of Pleading
Rule 9 - Pleading Special Matters
Rule 10 - Form of Pleadings
Rule 11 - Sanctions
Rule 12 - Motion Practice
12(b) - Motion to dismiss

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2
Q

Title II - Commencing an Action, Service

A

Rule 3 - Commencing and Action
Rule 4 - Summons
Rule 5 - Service and Filing
Rule 6 - Computing and Extending Time

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3
Q

Rules 7-16

A

TITLE III. PLEADINGS AND MOTIONS

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4
Q

Rules 17-25

A

TITLE IV. PARTIES

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5
Q

Claim Preclusion Test

A
  1. Same Parties Same Position (Note: compulsory counter-claims)
  2. Previously Litigated, Full and Fair
  3. Valid, Final Judgement on Merits (not procedure, e.g. statute of limitations)
  4. Same Claim (Transaction Test)
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6
Q

Venue Generally Statute

A

28 USC § 1391

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7
Q

Federal Question Statute

A

28 USC § 1331

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8
Q

Diversity Jurisdiction Statute

A

28 USC § 1332

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9
Q

Supplemental Jurisdiction Statute

A

28 USC § 1367

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10
Q

Removal Statute

A

28 USC § 1441

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11
Q

Cure or Waiver of Defects (Venue) Statute

A

28 USC § 1406

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12
Q

Change of Venue Statute

A

28 USC § 1404

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13
Q

Compulsory Counter Claim Rule

A

Rule 13(a)

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14
Q

Issue Preclusion AKA

A

Collateral Estoppel

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15
Q

Claim Preclusions AKA

A

Res Judicata

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16
Q

Issue Preclusion Test

A
  1. Same issue
  2. Actually Litigated (not stipulated, etc.)
  3. Final Judgement
  4. Determination essential to the judgement
  5. Party against whom preclusion is asserted was a party in prior case
  6. Full and fair opportunity to litigate
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17
Q

Issue Preclusion Case

A

Felger v. Nichols: Case 1 - payment, Case 2 malpractice

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18
Q

non-mutual defensive issue preclusion

A

A non-party to a prior case can use facts from that prior case in it’s defense. Once a patent is invalid, that issue is settled. Using facts to defeat a claim.

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19
Q

non-mutual defensive issue preclusion case

A

Blonder-Tongue v. U. Ill. (1971)

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20
Q

non-mutual offensive issue preclusion

A

Using prior findings to establish claims

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21
Q

non-mutual offensive issue preclusion case

A

Parklane Hosiery v. Shore (1979)

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22
Q

Declaratory Judgement

A

Rule 57; 28 USC § 2201

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23
Q

Proper Venue

A

28 USC § 1391
1. Judicial District in which any D resides, if all D in state.
2. substantial part of the events or omissions giving rise to the claim
3. Lacking other, any District where D is subject to PJ

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24
Q

Proper Venue for US as defendant

A
  1. District where natural Plaintiff resides
  2. Principal place of business; filed taxes; DC District
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24
Proper Venue for US as defendant
1. District where natural Plaintiff resides 2. Principal place of business; filed taxes; DC District
25
Title IV - parties
Rule 18 - Joinder of Claims Rule 20 - Permissive Joinder of Parties (Transaction/Occurrence) Rule 21 - Misjoinder and Non-Joinder
26
St Paul Mercury Rule
A claim must appear to a legal certainty to be far less than the jurisdictional amount to justify dismissal.
27
Removal Statutes
28 USC § 1441 - Removal 28 USC § 1442 - Procedure for Removal 28 USC § 1446 - Procedure after Removal
28
Mullane v. Cent Hannover
Service of Process - reasonably calculated under all the circumstances, to apprise interested parties of dependency of the action, and afford them an opportunity to present their objections
29
McGee v. Intl Life
CA Insurance Case establishing sufficient contacts
30
Intl Shoe
minimum contacts with the forum state, and such lawsuit does not offend traditional notions of fair play and substantial justice
31
World Wide Volkswagen
It is not enough that it is foreseeable that the defendant’s product would enter the forum state for that forum to obtain personal jurisdiction over the defendant, instead the defendant must **purposely avail** itself of the forum state.
32
Uffner v La Reunion
Sail boat sank off Puerto Rico, events make forum proper
33
Hertz v. Friend
Nerve Center Test for Corporate Domicile: direction, control, and coordination
34
Rule 4(k)(1)(A)
In General. Serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant: who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located
35
Summons must contain
1. Name of court and parties 2. be directed to defendant 3. Name and Address of Plaintiff (Attorney) 4. Time within which defendant must appear and defend 5. Notify defendant that failure to appear is default 6. Signed by Clerk 7. Bear the Court's Seal
36
Mottley - Well pleaded complaint rule
Federal question must "Arise from" the face of the complaint. (not defenses)
37
Hess v. Pawloski (1927)
PA Driver in MA, implied consent to PJ A statute appointing an agent for service of process for non-resident motorists involved in accidents while in the Commonwealth of Massachusetts complies with the Fourteenth Amendment.
38
Specific Jurisdiction Reasonableness Factors
1. Burden on D 1. Forum State's interest 1. Plaintiff's interest 1. Interstate interest in efficiency 1. Existence of an alternate forum
39
Calder v. Jones
Effects Test
40
Forum non Conveniens
"an inconvenient forum" - Doctrine to dismiss a case better heard elsewhere. Inherent, not in FCRP
41
Notice Pleading
Theoretically our model, actually more like element pleading
42
Element Pleading
Pleading based on elements of an action
43
Twombly
1. Identify the element 1. Accept as true only well-pleaded, non-conclusory allegations
44
Iqbal
Does the allegation state a plausible claim
45
Time to answer a complaint
21 days from service, 60 if waiver of service
46
Matter by Answer
1. Admit/Deny 2. Affirmative Defenses. 3. Counter-claims
47
Amended Pleadings
1. Once as a matter of course 2. Within 21 days
48
Supplemental Jurisdiction Tests
1. Common nucleus of operative fact 2. Discretion: A. Fed/State primary issue B. State claim complexity C. Likely to confuse jury D. Federal basis claim dismissed early
49
Certified Question
Federal courts can ask state Supreme Courts to answer questions of state law
50
Pretrial Conference Scheduling
Earlier of - 90 days after defendant is served, - 60 days after defendant has appeared
51
Discovery Rule Numbers
Rule 26 Duty to Disclose Rule 30 Depositions Rule 33 Depositions Rule 34 Production Rule 35 Physical/Mental Exams Rule 36 Admissions (30 Days, Respond or Admit)
52
Electronic Stored Info
ESI
53
ESI Case
Zubulake V. UBS Warburg (2003)
54
Is choice of Law binding over change of venue
Yes
55
Summary Judgement
No genuine dispute of material fact
56
Motion for Summary Judgement Rule
Rule 56
57
Affidavit is ___ , Declatation is____
Sworn, Not sworn
58
Judgement as a matter of law
Rule 50 (a) - Judgement (b) - renewal of motion/motion for new trial (on same basis as (a) motion)
59
Federal 11th Circuit
FL, GA, AL
60
Federal 5th Circuit Split
11th Circuit, October 1, 1980
61
Jury Trial
Must Demand
62
Natural Person Domicile
Presence + Intent to remain
63
Subject Matter Jurisdiction can not be ____
Waived
64
Rule 12(b) waivable issues
(2) Personal Jurisdiction (3) Improper Venue (4) Insufficient process (5) Insufficient Service of Process
65
Amount in Controversy Aggregation
1. Single Plaintiff/Single Defendant - Sum all Claims 2. Co-Plaintiffs cannot aggregate 3. Co-defendants cannot aggregate
66
Ford
"Relates to"
67
Asahi
Stream of Commerce + More Stream of Commerce
68
Tag Jurisdiction Exceptions
1. Fraud 2. Legally Required Presence 3. Special Appearance 4. e.g. not voluntary
69
Choice of Law/Personal Jurisdiction
Choice of Law clauses select state law that governs, but that is not the same as Personal Jurisdiction
70
Forum Selection Clause
Contractual agreement to consent to Personal Jurisdiction in a specific forum
71
Marks Rule
When the Supreme Court is split in concurrence, the law is the narrowest portion of agreement between concurrences

Fall 2022 (3 decks)

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