Civil Procedure

Flashcards on Civil Procedure to help review for the exam.

What are the three different types of subject matter jurisdiction?

Federal Question, Diversity of Citizenship, Supplemental Jurisdiction

What are the three different types of laws that would allow a court to have Federal Question Jurisdiction?

Federal Law, U.S. Constitution, U.S. Treaty

Does raising a defense under federal law give the court Federal Question Jurisdiction?

No

What are the two main requirements for Diversity of Citizenship Jurisdiction?

Complete Diversity of Citizenship and Amount exceeds $75,000

How is the citizenship of a party determined?

It is determined by their domicile

What are the two factors used to determine the citizenship of a natural person?

Residence, Intent to stay

What are the two factors used to determine the citizenship of a corporation?

Principal place of business, All states of incorporation

How do you determine the citizenship of an unincorporated association?

Domiciliary of the state of every member

Is citizenship of an executor relationship determined by the one being represented, or the one representing?

The one being represented

Can you aggregate claims against a defendant? What about multiple defendants?

Yes for the single defendant. Yes for multiple defendants if they are jointly and severally liable

What are the three requirements for diversity jurisdiction of a large class action?

$5M, At least 100 people, Minimum Diversity (Any member of P class is diverse from any member of D)

What is the 1/3-2/3 rule for limits on class action diversity jurisdiction?

Court MAY decline jurisdiction when non-diverse members are between 1/3 and 2/3 of members. Court MUST decline jurisdiction when non-diverse members are greater than 2/3 of class

What is supplemental jurisdiction?

Allows a party to bring a state claim in Federal Court that does not have SMJ

When may a federal court exercise supplemental jurisdiction?

When they arise from a common nucleus of operative fact as the other claims the court has SMJ over (same transaction + occurrence)

Can supplemental jurisdiction be used to overcome a lack of diversity?

No, it cannot

Can supplemental jurisdiction be asserted if it would violate complete diversity?

No, it cannot

Can supplemental jurisdiction be used by the original plaintiff against a third-party defendant?

No, it cannot

What is the domestic relations exception to federal court jurisdiction?

Federal courts MUST decline jurisdiction if a case involves divorce, alimony, child custody, etc.

What are the three requirements for removing a case to federal court

Federal Court has SMJ, No defendant is a resident of the forum state, Sought within 30-days of pleading

Can a plaintiff remove a case to federal court?

No, they should have filed it in the first place

What is the abstention doctrine?

Federal courts MAY abstain from hearing a case when it would intrude upon the powers of another court

What are the two main categories of personal jurisdiction?

Traditional Basis of Jurisdiction & Long-arm jurisdiction

What are the four main types of traditional bases of personal jurisdiction?

Domicile, Presence, Consent, Waiver

What are the two requirements for long-arm personal jurisdiction

Long Arm Statute, Due Process Requirements

What are the two main elements of the due process requirements under long arm personal jurisdiction?

Minimum contacts Test & Fair Play & Substantial Justice

What is the minimum contacts test?

Contacts so substantial that D is essentially at home

Does regular product sales meet the minimum contacts test for a corporation?

Generally not, you need more than that.

How long must summons and a complaint be served after filing with the court?

90 Days

If summons and a complaint aren’t filed in 90 days, what options does the court have?

The court must either Dismiss without prejudice, or Order P to serve the D

What are the two main requirements for a process server?

They must be 18 years old and not be a party to the action

What are the three ways to serve an individual?

Personally, Someone of suitable age at individuals dwelling or “usual place of abode”, Via agent

Who is able to accept service from a corporation?

Any officer, A company agent, Someone designated

What are the three main situations where venue is proper?

Any defendant resides there, Substantial part of claim or property is in forum state, If 1/2 don’t exist, where any defendant is subject to personal jurisdiction (Only if there isn’t another proper district)

When is venue determined?

At the time of filing

What are the two reasons a court MAY transfer venue?

Convenience of witnesses, Interest of justice

What two options does a court have when the venue is improper?

Dismiss the case, Transfer the case to a proper court

When may a court NOT enforce a forum-selection clause?

When there is significant hardship

What is the Erie Doctrine?

The federal court is brought under diversity of citizenship jurisdiction, Courts will apply federal procedural law and state substantive law

Are the elements of a claim procedural or substantive law?

Substantive

Is the statute of frauds procedural or substantive law?

Substantive

Is the burden of proof procedural or substantive law?

Procedural

What are the two requirements for when a preliminary injunction may be issued?

Notice to the adverse party, Moving party gives financial security if the injunction is not successful

What is the 4 element test of a preliminary injunction?

Likelihood of success on the merits, Threat of irreparable harm, Harm by movant outweighs harm to non-moving party, Public interest

What must a movant allege for a court to issue a temporary restraining order?

Immediate and irreparable harm

When will a TRO expire?

In 14 days, unless extended

What is a permanent injunction?

A party MUST show Irreparable injury and Legal remedies are inadequate

What are the three requirements that a claim must contain?

Grounds for the court’s jurisdiction, Claim showing pleader is entitled to relief, Demand for relief sought

What are the two main requirements for a responsive pleading?

Defenses to Claims asserted, Demand for relief sought

What is the time requirement for when a pleading can be amended?

21 days after service

Can you amend a pleading with permission from the other party after 21 days?

Generally, yes, with court approval too

What three defenses are deemed waived if not included in the pleading response?

Lack of personal jurisdiction, Improper Venue, Improper service of process

Does an amended pleading relate to the original date of filing? Any issues?

Yes, as long as it arises out of the same transaction or occurrence

What are the three requirements for when a new defendant added to a claim would relate back to the original date of filing?

The same transaction or occurrence, New party received notice within 90 days of filing, The new party knew or should have known the claim based on a mistake of identity

What is the difference between a permissive and compulsory counterclaim?

A compulsory counterclaim MUST be stated in pleading or it is barred from future litigation

When may a co-defendant issue a cross-claim?

ONLY IF it arises out of the same transaction or occurrence as the original claim

What is a party certifying when presenting papers to the court (2 things)?

It is not presented for an improper purpose or frivolously, The factual contentions have support

What are three examples of different types of sanctions?

Money fine, Non-monetary directive, Paying attorney’s fees or expenses

Can monetary sanctions be issued against a client for an issue their attorney made?

No, it cannot

What two steps must a party do before asking the court to issue sanctions on the opposing party?

Serve the offending party, AND, Give the other party 21 days to respond

What are the three requirements for permissive joinder of a party?

Claim arises out of same transaction or occurence, Common question of law or fact exists, SMJ is present for each claim.

What are the two requirements for when a party MUST be joined?

Party is necessary, and Joinder is feasible

When is a party deemed necessary?

Court cannot grant relief without the party, Absent parties interest would be impaired, Party absence creates risk of additional liability

If joinder is NOT feasible, may a court allow the action to take place?

Yes, if there is a risk of prejudice or an inadequate remedy

When MUST a court permit a non-party to intervene in an action?

The application is timely, They have a valid interest in the subject matter, Protection of the interest would be impaired, Interest is not adequately represented by existing parties in action

What are the two requirements for an impleader?

The defendant may bring a third party into an action if: Third party is or may be liable to Defendant For all or part of the claim against Defendant

What are the four requirements for a class action suit?

Numerosity, Commonality, Typicality, Adequacy of Representation

What are the two requirements to determine if information is discoverable?

It must be relevant and proportional

How many depositions is a party limited to?

10

What are the two limitations on depositions?

Proper notice, Time may not exceed 7 hours

Is a subpoena required to depose a party to an action?

No, this is not required

What MUST a party do with electronically stored information if there is an anticipation of litigation?

Take reasonable steps to preserve ESI. If not or if they intentionally delete it, the court MAY enter a default judgment

What are the three elements an attorney is signing off on when they sign a document?

It is not frivolous, It is not being presented for an improper purpose, It is not unreasonable

May or must a court issue sanctions if an attorney signs off on a document that is frivolous, improper, or unreasonable?

If an attorney violates a rule WITHOUT substantial justification, they MUST impose an appropriate sanction.

What MUST a party provide within 14 days after the “meet and confer conference” related to evidence?

Witness information, Copy of documents, Computation of damages

What are the two exceptions to when attorney work product may be discoverable?

Substantial need for the materials exists, AND Information cannot be obtained without undue hardship

What is a pretrial conference, and is attendance mandatory?

Meant to determine the control/scheduling of the case, and YES, it is mandatory

What are the two reasons a scheduling order can be modified?

Good Cause, Judge’s Consent (Pretrial Order)
Manifest Injustice - Final Pretrial Order

Can a court issue sanctions on a party for failing to appear, being unprepared, not participating in good faith to a pretrial conference?

Yes, they can dismiss the claim, enter a default judgment, etc.

What are the two elements a court will consider for a motion to dismiss?

Facts most favorable to the non-moving party, If there is any basis upon which relief can be granted

Does the court evaluate the merits of the case when considering a motion to dismiss?

NO

What are the two elements required for a court to grant a summary judgment motion?

There is no genuine issue of material fact, AND Movant is entitled to judgment as a matter of law

What party does the court view the evidence in light of related to a movement for a summary judgment or JMOL?

The non-moving party

Can a JMOL be brought at any time?

Any time before the case has been submitted to the jury

What are the two main elements for when a JMOL will be granted?

Non-moving party has been fully heard on the issue, A reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party

How long does a party have to move for an RJMOL?

Within 28 days of the entry of judgment

Can a party move for an RJMOL if they did not move for a JMOL during trial?

No

How long does a party have to move for a motion for a new trial?

28 days

Give a few examples of grounds for a new trial

Error at trial that makes judgment unfair; New evidence surfaced that could not be obtained with due diligence for the original trial; Prejudicial misconduct of a party, attorney, third-party, or juror; Judgment was against the weight of evidence; OR Verdict was excessive or inadequate.

Will a default judgment have a preclusion effect?

Yes, if the court had valid jurisdiction (SMJ and PJ)

What are the four elements of claim preclusion (Res Judicata)?

Parties are identical, Past court was competent, Final Judgment in past action, The claim arises out of the same transaction

What are the four elements of issue preclusion (Collateral Estoppel)?

Final judgment in past action, The issue is identical to the first action, The issue was determined and essential in the first action, Party whom it is enforced had a full and fair opportunity to litigate the issue

What is the final judgment rule?

An appellate court can only hear an appeal from a final judgment on the merits

How long does a party have to file an appeal?

30 days after the entry of the judgment

When is an immediate appeal allowed?

Multiple parties, final judgment for some of the claims, AND the court determines there is no just reason for delay

What is the collateral order doctrine?

A federal appellate court may review a district court order immediately—even if it is not a final judgment—if the order:

1. Conclusively determines the disputed question;

2. Resolves an important issue completely separate from the merits of the action; and

3. Would be effectively unreviewable on appeal from a final judgment.

Are cross-claims ever compulsory?

Never!!

When should summary judgment be granted?

When there is no genuine dispute of material fact

What is the limitation on asserting third-party claims?

They may only be asserted to obtain recovery, not to shift blame

Is a third-party required to assert a claim that arises from the same transaction as the plaintiff’s claim?

No, they are not required to assert it

When must witnesses be disclosed in federal litigation?

They must be disclosed early, not just in the pretrial disclosures 30 days before trial