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96 Cards in this Set
- Front
- Back
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Time limit for filing notice of removal: |
30 days |
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IfD inherits property in a particular state, but has no other contacts with thatstate, is there PJ? |
No. Canown property in a state without having minimum contacts. |
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In rem |
Onlyapplicable when the PROPERTY isat issue in the case. Dispute about who owns the property = in rem. |
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Bulge provision |
Bulgeprovision only applies to impleader or required party joined under Rule 19. |
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Can one be served at a vacation home only used a month out of the year? |
Yes. |
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Can multiple Ps add up their damages to get 75k for diversity? |
No. Even if same T/O, still NO. |
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When are injunctions appealable? |
Immediately, even if case not over. |
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Federalcts, in diversity, have to generally apply which law (state or federal)? |
Federal cts, in diversity, have to generally apply the state substantive law in which they sit (erie). Choice of law rule - If choice of law is specified in K, then follow that. |
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Where is insurer a citizen of? |
As a corporation, the insurer is a citizen of the state of its incorporation and also a citizen of the state of its principal place of business. However, an insurer is also deemed to be a citizen of the insured’s state when the insurer is sued in a direct action. |
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Federallaw cases |
Copyright infringement Patent law Cases that arise under treaties of the U.S. |
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Serviceof process (what law do federal courts follow)? |
In diversity jurisdiction, federal courtsfollow federal procedural rules. However, servicemay also be effected by following state law in an action brought in courts in astate where the federal district court is located. |
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What law governs SOL? |
SOL = State substantive law |
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Conflictbetween state and federal law |
If there is a conflict and outcome will be different depending on which law to apply, apply state law unless affirmative countervailing federal interests are at stake that warrant application of federal law. If no conflict or if there is a conflict, but result won't change, apply federal law. |
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Lack of PJ must be raised in: |
Pre-answer motion or answer. Otherwise, waived. |
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What areas of law do federal courts not have jx over? |
Domestic family matters or probate. |
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Ifct lacks SMJ over an indispensible party, |
ctmust dismiss that party and therefore dismiss the suit. |
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Removal based on diversity jx |
Whenremoval is based solely on diversity jurisdiction, the action may not beremoved if D is a citizen of the state in which the action isfiled. |
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Impleaded party and counterclaims |
Aparty that is impleaded must bring any compulsory counterclaims (arise out ofsame T/O) the party has against the impleader. If theparty does not bring up the compulsory counterclaim against the impleader, theparty cannot bring up the claim after the suit is finished. |
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When can D implead a third party? |
D may implead a third party at any time after the complaint has beenfiled by serving a summons and third-party complaint on the third party. D (i.e., the third-party plaintiff) may do so w/o court’spermission if he files third-party complaint within 14 days after servinghis answer to P’s complaint. |
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Can P sue an impleaded third party via diversity? |
Yes, but P cannot sue an impleaded party via diversity if P and third party are of the same state. |
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statutoryinterpleader |
Diversity is met if any two claimants are citizens of different states. Withregard to the amount in controversy, in a statutory interpleader action, theproperty at issue must merely be $500 or more in value, not meet the $75,000threshold required for regular diversity matters. |
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Rule22 Interpleader (different than federal statute interpleader) |
General rules of diversity. No requirement that two claimants are of diff. states. |
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Cross claim |
A cross-claim that arises out of the same T/O may be asserted by one D against another D w/o regard to amount in controversy or citizenship of parties to the cross-claim as long as the court has subject-matter jurisdiction over the original claim. A cross-claim falls under the supplemental jurisdiction of the court. Not required to make a cross claim (no such thing as compulsory cross claim). |
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Can party voluntarily dismiss a cross claim? |
Aparty may voluntarily dismiss a cross-claim (or a counterclaim or third-partyclaim) without the approval of the court or the consent of the parties before aresponsive pleading is served (Answer), or if there is no responsive pleading,before evidence is introduced at a hearing or trial. |
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Amendment relation back |
Anamendment to a pleading will relate back to date of original pleadingwhen amendment asserts a claim or defense that arose out of same T/O set out in originalpleading. |
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Amendment as of right |
Pcan amend once as of right within 21 days after being served with the answer. |
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Class action Notice |
23(b) (1) or (2), notice to class members other than named class members is at discretion of the court. 23(b)(3) - The best notice that is practicable under the circumstances. Notice is not typically provided by means of personal delivery or registered mail. |
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Class action (non CAFA) |
Ifat least one P in a putative class action has a claim that meets thestatutory jurisdictional amount (75k), other Ps can be made part of class under doctrine of supplemental jurisdiction. |
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When can claims of a certified class be settled or dismissed? |
Theclaims, issues, or defenses of a certified class may be voluntarily settled ordismissed only with the approval of thecourt. A class action may be settled even if some of the class members do not accept the proposed settlement. Those class members must be given the opportunity to opt out of the settlement and proceed on their own. |
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ClassAction Fairness Act (CAFA) |
(1) The class must have at least 100 members. (2) Amount in controversy must exceed $5,000,000. (3) Minimum diversity is required (at least one P lives in a different state than D). |
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Interrogatories |
Interrogatories may only be served on a party to a lawsuit; they may not be used on nonparty witnesses. Can serve 25 interrogatories on same party, but can serve more if court allows. |
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Dismissal of a complaint |
A complaint should not be dismissed for a mere imperfect statement of the legal theory. However, under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim. |
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What happens when you fail to deny allegations regarding damages? |
Nothing. Failure to deny allegations of damages does not result in admission regarding damages. |
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When D files an answer with a counterclaim, does P have to respond to it? |
Ifa counterclaim is made in the answer, unlike a complaint, P is not required torespond to the counterclaim. If P does not respond to it, then it is taken as adenial by P. However, the court may require P to respond to the counterclaim inthe answer. |
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When must you answer a pleading when it is amended? |
Youhave 21 days from the original filing of a pleading to answer, even if it wasamended a day after filing (it won't be 14 days even though it was amended. Itwould be 21 days, which is what's normally required). |
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Motionfor a judgment on the pleadings |
May not be pursued until D files answer. |
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When can you file a motion for SJ? |
After discovery is complete (before answer is too early). |
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What does court consider when motionto dismiss for failure to state a claim upon which relief can be granted filed? |
Courtmay consider only the allegations in the complaint, any exhibits attached tothe complaint, and any matters subject to judicial notice. If stuff from outside the above, then it is a SJ motion. |
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Motionfor a judgment as a matter of law |
Courtmust view the evidence in the light most favorable to the opposing party anddraw all reasonable inferences from the evidence in favor of the opposingparty. It may not consider the credibility of witnesses or evaluate the weightof the evidence. A determination of the credibility of witnesses and the weightgiven to evidence must be made by the jury. |
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When can you file motion to strike? |
Ifa pleading contains an insufficient defense, a party must move to strike thedefense from the pleading either before responding to the pleading or, if aresponsive pleading is not permitted, within 21 days after being served withthe pleading. |
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Motion for relief from a judgment |
Amotion for relief from a judgment under Rule 60(b) that is based on newlydiscovered evidence must be filed within a reasonable time and no later thanone year from the entry of the judgment. |
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When can default judgment be entered? |
If D does not answer complaint within 90 days after service. |
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Demand for jury trial |
Mustbe asked for within 14 days of serving the answer. |
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Preliminary injunction |
Must be given at least notice and a hearing before a preliminary injunction can be issued. P seeking a preliminary injunction must establish that: (i) she is likely to succeed on the merits; (ii) she is likely to suffer irreparable harm in the absence of relief; (iii) the balance of equities is in her favor; and (iv) the injunction is in the best interest of the public. All four of these factors must be satisfied. |
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Temporaryrestraining order |
Can be given w/o notice. Effective at most for 14 days. |
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Renewedmotion for judgment as a matter of law |
Themovant may file a renewed motion for judgment as a matter of law no later than28 days after the entry of judgment. |
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Time to file for new trial |
28 days from entry of judgment. |
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Courtstandards |
De novo - When appellate court review trial court's rulings on matters of law. Abuse of discretion - applies to discretionary decisions made by court. Typically applied to decisions made that relate to conduct of trial E.g. The admissibility of evidence or appropriate sanction to be imposed for failure to comply with a discovery order. Clearly erroneous - applies to a trial court’s findings of fact. The amount of damages to be awarded is a factual finding. As such, the award must not be set aside unless clearly erroneous. The plain error rule - permits an appellate court to take notice of a plain error that affects a substantial right, even though a party failed to object or make an offer of proof at trial. |
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How district courts determine state's substantive law: |
TheU.S. district court will be bound by the rulings of the state’s highest court.If the state’s highest court has not spoken on an issue, however, the federalcourt must try to determine how the state’s highest court would rule on theissue, if it did consider it. To make this determination, the federal courtwill generally look to any lower state-court decisions that have considered theissue and will follow a lower court’s view, unless it believes that the higheststate court would not follow it. |
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Fraud and mistake in a complaint |
Ina complaint, for it to be valid, a party alleging fraud must state withparticularity the circumstances constituting fraud. Allegations of fraud mustbe pled with particularity. |
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Can you appeal an order for a new trial? |
No, because it is not a final judgment. A partywho wants to raise on appeal the grant of a new trial must wait until the newtrial has occurred and resulted in a final judgment. |
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Ifa procedural issue is addressed by a valid federal law, what law applies? State or federal? |
Federal, even if astate rule or statute is in conflict. |
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Is service of process a procedural issue or substantive? |
Procedural. |
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When D files a pre-answer motion (e.g. motion to dismiss), how long after that does D have to file the answer? |
D must file answer 14 days after receiving court's decision on the motion (not 21). |
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Time to amend complaint as of right |
If no responsive pleading is required, a party may amend a pleading once as of right within 21 days. If a responsive pleading is required, the party may amend within 21 days of service of the responsive pleading or within 21 days of being served with a motion to dismiss under Rule 12(b), whichever is earlier. |
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When does a motion for a new trial have to be made? |
No later than 28 days after final judgment. Same time frame as a renewed motion for a judgment as a matter of law. Also same time frame to motion to alter or amend final judgment. |
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If 2 Ps, but only one meets amount in controversy, and they are both from diff states than D, can they join together against D? |
Only if their suit arises out of same T/O. |
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When must a court grant SJ? |
Amotion for summary judgment must be granted if the pleadings, the discovery anddisclosure materials on file, and any affidavits show that there is no genuinedispute as to any material fact and that the movant is entitled to judgment asa matter of law. A genuine dispute of material fact exists when a reasonablejury could return a verdict in favor of the nonmoving party. |
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When does a compulsory counterclaim exist? |
Ifa party files a claim, a counterclaim, or a cross-claim against another party,the second party must file any claim that that party has against the firstparty that arises out of the same transaction or occurrence as the firstparty’s claim. The first defendant is an opposing party with respect to thismandatory claim; accordingly, the second defendant’s claim is a compulsorycounterclaim. |
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When can a party file a motion for SJ? |
A party may file a motion for summary judgment at any time until 30 days after the close of all discovery. |
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How does other party combat motion for SJ? |
If a motion for summary judgment is properly made and supported, an opposing party may not rely merely on the allegations or denials in her own pleading. The opposing party must set out specific facts showing a genuine dispute for trial (show new evidence or attach affidavits). If the opposing party does not so respond, then summary judgment, if appropriate, will be entered against that party. |
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In voir dire, can judge refuse to permit attorneys to question jurors? |
Yes, but must allow attorneys to submit questions to judge and then judge can ask jurors. Judge can choose not to ask certain questions. |
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Is the court required to specifically state conclusions/findings when denying or granting motions? |
No. |
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If an appeal is permitted, does that stay proceedings in the district court? |
No, unless the district court or the court of appeals so orders. |
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Is an order denying summary judgment subject to immediate appeal? |
No, b/c not final order. |
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Peremptory challenges cannot be based on: |
Race or gender. |
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Does a SH who brings a derivative action have to own stock at the time of the wrong to bring the action? |
Yes. |
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Can a court direct parties to appear at a pre-trial conference even if they do not want to? |
Yes. |
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Can D amend his answer to assert lack of PJ or is it lost immediately upon filing an answer? |
D can amend his answer to assert lack of PJ. Must amend within 21 days of serving answer. |
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Can a party, when responding to a complaint, just state I deny all allegations? |
Yes, if in good faith, party intends to deny all allegations. |
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Can court award rule 11 sanctions even if party does not ask for them? |
No, party must ask for them. (Rule 11 violation is failing to reasonably investigate factual contentions) |
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Is jury trial considered state substantive or procedural law? |
Procedural. |
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Demand for a jury trial time frame |
Demand for a jury trial can be made at any time, no later than 14 days after last pleading. |
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Can a juror be dismissed for good cause when jury deliberations have begun? |
Yes. |
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Can P file a third party claim against a third party D? |
Yes, butthe claim must relate to the same transaction or occurrence as the originalcomplaint. |
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Does an appellate court have to hear an immediate appeal of a certification of a class action? |
No, appellate court has discretion to hear it. Petition for appeal must be filed 14 days after order. |
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What law should be used in a diversity dispute when there is choice of law rules in the state? |
Under Erie, a U.S. district court with diversity jurisdiction must apply the substantive law of the state in which it is located, including that state’s conflict-of-law rules. |
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When must expert witness disclosures occur? |
At least 90 days before trial. If failure to disclose is harmless, then you can still use expert at trial. |
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Can a federal court transfer a case to a foreign country? |
No, even if the facts indicate that such a forum would be the most appropriate for the action. |
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Where can federal courts remand cases? |
Only to the court where the suit originated. |
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If polling reveals the verdict is not unanimous, must there be a new trial? |
No. Court can order jurors to go back to deliberating. |
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Can JMOL be asserted for the first time after jury renders its verdict? |
No. Must assert JMOL earlier to later assert RJMOL. |
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Service on attorney |
An answer must generally be served on an attorney if P has one. Service of an answer may be made by leaving it with a person in charge at the attorney’s office. The answer must also be filed with the court clerk within a reasonable time after service. |
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Amendment to bring in a new D (had wrong D) |
Under Rule 15, an amendment to a pleading that changes the named defendant relates back to the date of the original pleading if it asserts essentially the same claim or defense, and the new party knew or should have known of the potential action and received notice within 120 days after the filing of the original complaint. |
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How many depositions can a party make? |
10depositions by oral or written examination. |
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When must leave of court occur to make a deposition? |
Unlessthe parties agree to the deposition, leave of the court must be obtained to (i)exceed the 10-deposition limitation, (ii) depose a witness a second time, or(iii) depose a person before the deposing party has complied with its initialdisclosure requirements under Rule 26(a). |
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When can a deposition be taken? |
Anytime after the party has made its mandatory initial disclosures pursuant toRule 26(a) |
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If D has no minimum contacts with forum, but is in the forum state b/c D is changing flights, can D be served? |
Yes. If D is voluntarily present in the forum state and is served with process while there, then court has PJ over D, even though D otherwise has no contacts with the forum state. |
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Does intervenor require amount in controversy and diverse citizenship to be met in a diversity dispute? |
Yes. Even when a person seeks to intervene as of right in an action for which SMJ is based on diversity jurisdiction, court must have SMJ over intervenor’s claim. When court does not have SMJ over a claim, court should not permit person to intervene. Intervenor must satisfy diversity in a diversity case - amount in controversy and be from a different state from D. |
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Does interpleader under rule 22 require diversity requirements? |
Yes. A federal action based on interpleader pursuant to Rule 22 requires that the general rules for SMJ be satisfied. For diversity jurisdiction, citizenship of party bringing action must be completely diverse from that of the claimants and the statutory amount in controversy must be met. The claimants need not be diverse among themselves. |
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When the United States is a defendant in a civil action who do you serve? |
servicemust be made on the U.S. Attorney General as well as the U.S. attorney for thedistrict in which the action has been filed. |
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When must pre-trial disclosures be made? |
at least 30 days before trial |
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What must be disclosed in pre-trial disclosure? |
The name and, if not previously provided, theaddress and telephone number of each witness, separately identifying those aparty expects to present and those it may call if the need arises. |
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What must initial disclosure contain? |
Disclosecomputation and stuff it is based on; name/address/phone of each person likelyto have discoverable information; copy of all documents and all tangible thingsparty will use in its case (except for stuff solely for impeachment). |
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What is required to make a motionto compel party to physical examination? |
Good cause. Exception when party make his physical condition at issue (e.g. asking for personal injury damages) |
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When other party fails to defend an action, who do you ask for a default? |
Court clerk |
