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113 Cards in this Set

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  • Back
Replies to an answer or third party answers are always allowed as pleadings
False
Allowed only upon court orders
An application for an order must be made by a motion in writing, must state the grounds for the motion with particularity, but does not have to state relief sought
False
Shall state relief sought as well
A complaint must contain grounds for the court’s jurisdiction, a statement of claim showing the party is entitled to relief, and a demand for judgment
True
Alternative relief may not be asked for in the complaint
False
Alternative relief may be demanded
If you do not answer an assertion in a claim, then it will be taken as admitted
True
Failure to deny deemed to have been admitted UNLESS responsive pleading was not required
the admission involved a disputed of the amount of damages claimed
If the pleader makes a mistake and puts counter-claims as affirmative defenses, the court may not treat it as if it were not made without mistakes.
False
If the pleader makes a mistake and puts counter-claims as affirmative defenses the court may treat it as if it were without mistakes
When pleading special matters, everything can be averred generally
False
acusations of fraud, mistake, must be stated with particularity
malice, intent, knowledge, conditions of mind may be alleged GENERALLY
Every complaint must have a caption, which includes the name of the court, titles of the action, file number, and a designation of the pleading
True
All pleadings can be signed by a lawyer, or other party
False
A lawyer MUST make signature if there is no lawyer the pleader must sign
The only way to impose sanctions is to file a motion for sanction
False
can be initiated by motion or by courts initiative
If a counterclaim arises out of the same transaction or occurrence, it can be asserted at anytime
False
(do not assert your counterclaim – res judicata then gone forever)
A cross claim can be brought at any time as long as it arises out of the same transaction or occurrence as the original claim
True
A defendant has 20 days after filing the original answer to bring in a 3rd party who is liable to them if they are liable to the plaintiff
False
A defendant has 10 days after filing the original answer to bring in a 3rd party who is liable to them if they are liable to the plaintiff
A plaintiff can bring a 3rd party claim
True
A pleading can be amended at any time before it is answered, or within 20 days after it was served if no answer is required
True
If a party fails to meet the time requirements in the above question, he can never amend his pleadings
False
CAN if he requests leave of court
After a pleading has been amended, the party only has 10 days to answer it
False
must be done in the longer of 10 days after service of the amendment or the time remaining within the original 20 day response period
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated as if they had been raised in the pleadings
True
An amended pleading will never relate back to the date of the original pleading
False
If it arises out of the same conduct or occurence it would relate back
An action must be brought in the name of the real party in interest
True
Whether a person has the capacity to sue or be sued will be determined by the laws of the state where the action is brought
False
shall be determined by the law of the parties STATE oF DOMICILE
corporation - law of state in which it was organized
all other cases - law of the cases of the district court
A party can only join multiple claims against an opposing party if they all arise out of the same transaction or occurrence
False
RULE 18a - a MAY join any independent or alternative claims
When a person is needed in an action in order for just adjudication, he will always be allowed to join the action
False
Can only if they meet subject and personal jurisdiction
A party will be permitted to join an action if they have a related claim and will not break SMJ
True
Any party can motion the court to sever a claim so that it could be proceeded with separately
True
When a party might be exposed to multiple liability, the opposing parties may be joined to fight over who gets what portion of the money. However, all the opposing parties’ claims must arise out of the same transaction or occurrence
False
The claims dont need to rise out of the same transaction or occurence
In order to bring a class action, 4 things must occur: 1) joinder must be impracticable because of the size of the class; 2) there are common questions of law/fact; 3) the claims or defenses of the representative is typical of the rest of the class; 4) and the representative party will fairly and adequately protect the interests of the class
True
If class action certification is granted or denied, an application for appeal must be made within 20 days
False
An intervention of right will be permitted when a statute gives such a right, or when the applicant claims an interest in the property/transaction and will be affected by the outcome of the case
True
A permissive intervention will be permitted whenever someone affirmatively seeks to intervene in the action
False
Permitted if law and fact relation but...
Court has discretion to allow
When a party to an action dies, he can substituted with another party if the motion for substitution is filed within 120 days of the persons death
False
When a party to an action dies, he can substituted with another party if the motion for substitution is filed within 90 days of the persons death same applies for incompetency
Public officer is an automatic substitution
If a party becomes incompetent subsequent to the commencement of an action, the action by/against such a party will be automatically dismissed
False
May allow the suit to continue in the name of a representative of the incompetent person
A petition for habeus corpus of other proceeding to challenge a criminal conviction or sentence is exempt from the initial disclosure under Rule 26(a)(1). Therefore, these disclosures must be made within 60 days after the Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in the circumstances of the action and state the objection in the Rule 26(f) discovery plan.
False
– 14 days
Disclosures can be made within 30 days after the meeting of the party
False
SHALL and 14 days after the meeting of the party
A party may disclose the identity of all expert witnesses who may be used at trial
False
A party MUST disclose the identity of all expert witnesses who may be used at trial 26(a)(2) – must
Pretrial disclosures must be submitted at least 30 days before trial
True
A party may obtain discovery regarding any matter that is not privileged and relevant to the claim or defense of any party
True
The following may be examined in the determination of a protective order:
a. Motion for protection must be made
b. Showing of good cause
c. Certification of good-faith effort or attempt to settle the mater without the court
False
MUST be examined in the determination of a protective order
Parties shall confer at least 45 days before scheduling a Rule 16(b) conference of order
False
Parties shall confer at least 21 days before scheduling a Rule 16(b) conference of order
A motion for leave to take deposition must be filed, including:
a. The names and addresses of people to be examined and the substance of testimony to be elicited. AND
b. The reasons for requesting advance testimony
True
Depositions must be taken before
a. An officer authorized to administer oaths by US law and
b. A person appointed by the court
False
. An officer authorized to administer oaths by US law OR
b. A person appointed by the court
A deposition may be taken by a fiduciary, attorney, employee, or relative of a party or the attorney
False
by either an officer authorized by US law or a person appointed by the court
If a subpoena duces tecum is not to be served, notice must include the materials sought to be produced
True - 30b(1)
if it is served notice must include materials to be produce
Unless the court otherwise mandates, parties may agree in writing or orally to:
a. Provide for depositions, which may be taken before any person, at any time, or any place, AND
b. Modify procedures and limitations dictated by the Federal Rules
False
CANT be oral MUST BE in writing
A deposition is limited to 1 day of 7 hours.
True
At no time during the deposition may a party or deponent move to terminate the examination or change its scope
False
At ANY time if depo is in bad faith, unreasonably embarrasing, anoyoning, or oppressive (depo wil be suspended)
If a serving party does not attend a deposition, he is responsible for fees and expenses of the other party and the deponent, if the court so orders
True
Failure to attend - responsible for reasonable fees or expensives
If a witness does not attend because the serving party fails to serve a subpoena, the serving party must pay reasonable expenses/ fees for the other party’s attorney showing up, if the court so orders
True
Within 30 days of service of questions, a party may serve cross-questions to all other parties
False
Within 14 days of service of questions, a party may serve cross-questions to all other parties
re-cross = 7 days
re-direct = 7 days
Within 14 days of being served cross-questions, a party may serve redirect questions to all other parties
False
Within 7 days of being served cross-questions, a party may serve redirect questions to all other parties
When the deposition is filed the party taking it must promptly give notice to all other parties
True
NOTICE of filing - must promptly give notice to all other parties
Objections to the admissibility of a deposition may be made at any time during the trial or hearing
True
All errors can be deemed waived unless written objection is served promptly after the party gave notice
False
All errors in depositions SHALL be deemed waived unless written objection is served promptly after the party gave notice 32(d) - shall
A party may not serve more than 40 interrogatories
False
A party may not serve more than 25 interroagories
Interrogatories must be returned within 15 days after they were served
False
Interrogatories must be returned within 30 days after they were served
Grounds for objections can be stated with specificity
False
Grounds for objections must be stated with specificity
Non-parties may not be compelled to produce documents under Rule 45
False
An adverse party may request a report of the examination
True
If no answer or objection is received within 20 days of the request for admission, a party is considered to admit the allegation
False
(30 days) of the request for admission, a party is considered to admit the allegation
Any admissions are conclusively established, unless the court grants a motion to withdraw or amend the admission
True
Sanctions may be imposed if a party does not disclose information
True
An appropriate court for an order to a party shall be made to the court in which the action is pending. An application for an order to a person who is not a party shall be made to the court in the district where the discovery is being or is to be taken
True
party = where action is pending
non-party = where deposition is pending
A ∆ may move for dismissal of an action or of any claim against the ∆ if the ∏ fails to comply with the FRCP or an order of the court
True
Under Rule 41, a ∏ may dismiss an action without order of court. This dismissal will be considered with prejudice
False
Voluntary dismissal - action may be dismissed without a court order - without prejudice
unless - plaintiff has already voluntarily dismissed once
The court may not join hearings or trials of an matters involving a common question of law or fact unless a party moves for joinder
False
the court MAY - if cases involve common cases of law and fact, may order a joint hearing or trial of any issue or a COMPLETE consolidation of the action and may make orders to avoid cost/delay
Failure to obey a served subpoena will result in contempt of the court in which the subpoena is issued, unless an adequate excuse is made. An exampled being that a non-party is required to travel more than 50 miles
False
An exampled being that a non-party is required to travel more than 100 miles
Within 30 days of service of the subpoena, the party subject to the production or inspection may serve a written objection upon the other party or his attorney
False
within 14 of service
once an objection is made the party may not insepct without a court order
A motion may be renewed after the verdict by filing and serving it within 10 days after entry of judgment
True
If a party against whom judgment by default is sought has appeared in the action, the party shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application
True
The court must set aside an entry for default judgment if:
a. Good cause is shown OR
b. Cause under Rule 60(b) is shown
False
MAY set aside an entry for defualt judgment
A motion for summary judgment must be served to the adverse party at least 15 days before the scheduled hearings
False
10 days before the hearing (rule 56c)
Clerical mistakes in judgments, orders, or other parties of the record may not be corrected before an appeal is docketed
False
Under the interpleader statute, you only need to have a minimum of 2 diverse parties (minimum diversity) and the amount in controversy only has to be $500
True
Federal courts with original jurisdiction will have supplemental jurisdiction over all other claims that are so related to claims in the original action that they form part of the same case or controversy
True
When a Federal Court has diversity jurisdiction over an action, any claims brought under Rules 14, 19, 20, or 24 of FRCP must have an independent basis for SMJ
False
any claims brought by PLAINTIFFS
The District Court must dismiss any supplemental claim when all the claims over which it had original jurisdiction have been dismissed
False
MAY dismiss any supllemental claim when all the claims over which it had original jurisdiction have been dismissed
Venue will be proper in the following situations: 1) if everyone is from the same state, then any district where any of the defendants actually reside; 2) if they are not from the same state, then wherever the majority of the events giving rise to the claim occurred; OR 3) if the 2 above don’t work, then any district where any of the ∆’s are subject to PJ
True
When a civil action involved property located in different districts in the same state, the action must be brought in the district in which the majority of the property is located
False
can be brought in any district
When bringing a statutory interpleader action, it can be brought in the judicial district in which one or more of the claimants reside
True
May be brought in the judicial district in which one or more of the claimants reside
In the interest of justice a district court may transfer any civil action to any other district it wants
False
may transfer the case to any other district that the case may have been brought, or both parties may consent to changed venue
When venue is improper, the case will automatically be dismissed
False
May dismissed or transfered
When a case is transferred under a 1404 change of venue, the law of the jurisdiction where the case was originally brought is used in the new jurisdiction
True
When a case is transferred under a 1406, the law of the new jurisdiction is used
True
For the convenience of the parties, whenever there are civil cases with common questions of fact pending in different districts, a panel or judges in one of the proper districts will be set up to handle all of the pre-trial proceedings
True
multi-district litigation
with common questions of fact may be transfered to any district for coordinate or consolidated pretrial precedings
Federal claims can be removed to State courts under §1441
False
Can only go from state to federal
When many claims are joined together in one action, as long as one of the claims is removable then all of the claims can be removed together
True
If any of the defendants are citizens of the state where the claim was brought, then no removal will be allowed
True
for diversity cases only
A notice of removal must be filed within 20 days after the defendant received the initial pleading
False
A notice of removal must be filed within 30 days after the defendant received the initial pleading
When a case is brought in a district that did not have jurisdiction over it, the court must dismiss the case and let the plaintiff bring it again in the proper jurisdiction
False
Transfer to cure want of jurisdiction - if a court finds there is a want for jurisdiction the COURT SHALL, in the interest of justice, transfer such action as to any other court in which the action or appeal could have been brought at the time it was filed or noticed
P, a citizen of Indiana, sues D, a citizen of Nevada, and X , a citizen of California, in a federal court. The amount of the claims exceeds $75,000. Either X or D could successfully move to dismiss for lack of jurisdiction
False
diversity here is ok
P brings a suit in federal court for breach of K. P alleges as the basis for jurisdiction that D will claim that a federal statute bars enforcement of the K. D’s motion to dismiss for lack of jurisdiction will be granted
True
P, a resident of Northern District of California, sues D, a resident of the Southern District of New York, for injuries suffered in Utah, which has but one federal district court. Federal venue would be proper in any one of the three mentioned districts
False
NO to california
P, a citizen of California, sues D, a citizen of Nevada, in a Nevada state court on an $80,000 claim. D can remove the claim to federal court
False
Cant remove when you have home field advantage (D is already from Nevada)
A challenge based on lack of SMJ is waived if not made prior to trial
False
SMJ is NEVER WAIVED
P sues D for breach of K. D has a claim against P for injuries occurring in a fight. D may assert his claim as a counterclaim against P’s action
True
P sues D to enjoin D from constructing a building, alleging that D’s methods of construction violate air pollution laws. D is under contract to T to erect the building on T’s land. The court may not proceed with the case unless T is joined as a party.
True
P has a claim of breach of a written K against D. Prior to filing suit, P purchases from X and Y their claims that each of them has against D. These latter claims are for the reasonable value of gardening and janitorial services. P may not join all 3 claims against D in a single lawsuit in federal court.
False
Under the FRCP, you cannot bring a bankruptcy or criminal case.
True
A civil action commences when a complaint and summons is filed with the court.
False
Only the complaint
The only thing required on a summons is that it be directed at the defendant and bear the seal of the court
False
Also must have the court clerk signature
+ a lot of other things
To properly execute service of process, the plaintiff must serve the defendant with the complaint and summons.
True
When a defendant waives service of process, he is responsible for all costs of service.
False
Waiving service of process = not responsible
If defendant refuses waiver of service, he is responsible for all costs of service.
True
Defendant has 60 days to answer a waiver of service.
False
Reasonable time bDefendant has but has a minimum 30 days to answer a waiver of service.
An affidavit of service is always required for proper service of process.
False
A US marshall does not require an affidavit
After filing the complaint you have 120 days for service.
True
A challenge based on lack of subject matter jurisdiction is waived if not made prior to trial.
False
SMJ is never waived
Plaintiff alleged in a complaint that he defendant gave him a vicious dirty look, causing him to suffer severe physical and mental injury. Defendant answered, denying that the look was vicious. Just prior to trial, the defendant moved to dismiss the complaint for failure to state a claim. The motion should be denied as untimely.
False
Defendant has 20 days to answer the complaint.
True
When service is waived, the defendant has 60 days from the day the request for waiver is sent to answer the complaint.
True
Defendant has 10 days to answer a cross-claim after the cross-claim was served.
False
Defendant has 20 days to answer a cross-claim after the cross-claim was served
When a court grants a motion for a more definite statement, the party must re-plead within 10 days of notice of the motion.
True
A motion to dismiss is used to attack the insufficiency of the pleading. The motion to strike is used to reach technical defects and to eliminate irrelevant allegations.
True