• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/111

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

111 Cards in this Set

  • Front
  • Back
Do federal courts need personal jurisdiction over the parties?
Yes.
What are the requirements for federal diversity of citizenship jurisdiction?
(1) action must be between citizens of different states (all plaintiffs must be residents of states different than every defendant - complete diversity).

(2) The amount in controversy must EXCEED $75,000.
How is a natural person's citizenship determined?
natural persons - deemed to resident in the state of her domicile.

domicile - established by (1) presence instate (physical requirement) and (2) subjective intent to make it her permanent home (mental requirement).
How is a corporation's citizenship determined?
(1) state where incorporated AND

(2) the one state where the corporation has its principal place of business.
What are the tests used to determine a corporation's principal place of business determined?
91) where the headquarters is located (nerve center - where decisions are made)
- This is usually the test used.

(2) where the corporation does more production or service activity than anywhere else (muscle center)
How is the citizenship for an unincorporated associated (partnership, LLC, etc.) determined?
For unincorporated association, use the citizenship of all members (that includes general and limited partners).
How is citizenship for decedents, minors and incompetents determined?
Look to the person's actual citizenship, not the citizenship of their representative.
How is the amount in controversy determined?
What the plaintiff claims in good faith exclusive of interest and costs, unless it is clear to a legal certainty that she cannot recover what she claims.
What may be assessed against a P who recovers less than $75,000?
P may have to pay defendant's litigation costs (not attorneys' fees).
Can a P aggregate separate and unrelated claims against a D to reach the amount in controversy requirement?
Yes, as long as it is one plaintiff v one defendant. To or more plaintiffs cannot aggregate separate and unrelated claims against one defendant in order to exceed the amount in controversy requirement.
Can plaintiff sue joint tortfeasors together for an amount exceeding $75,000?
Yes. For joint claims, use the total value of the claim. The number of parties is irrelevant for joint claims.
Can a plaintiff sue for an injunction in federal court?
Yes. Two tests used by the courts:

Plaintiff's viewpoint: Does the defendant's act harm plaintiff in a way that exceeds $75,000?

Defendant's viewpoint: Would it cost defendant more than $75,000 to comply with the injunction?
What types of actions will federal courts refuse to hear, even if diversity of citizenship requirements are met?
(1) divorce
(2) alimony
(3) child custody decree
(4) estate probate
What must a complaint show in order to meet federal question jurisdiction?
Complaint must show a right or interest founded substantially on federal law. The claim must "arise" under federal law.

What is not relevant for question jurisdiction:
(1) citizenship of the parties
(2) amount in controversy
What is the well pleaded complaint rule, and how is it related to federal question jurisdiction?
Plaintiff's claim, properly pleaded, must be based on federal law.

Properly pleaded means that th ecomplaint sets forth only a claim, so the court ignores any extraneous stuff that has nothing to do with the claim itself.
What is supplemental jurisdiction?
Allows a federal court to hear a claim over which there is no diversity of citizenship or federal question jurisdiction.
What is THE TEST that must be met in order for federal supplemental jurisdiction to be exercised over a claim?
The claim that you want to get into federal court must share a "common nucleus of operative fact" with the claim that invoked federal subject mater jurisdiction.

How is the test met: claim arises from the same transaction or occurrence (T/O) as the underlying claim (where federal jurisdiction is OK).
What is the limitation for exercising federal supplemental jurisdiction?
IN a DIVERSITY case, a PLAINTIFF cannot use supplemental jurisdiction to overcome a LACK OF DIVERSITY.

However, a P can use supplemental jurisdiction to overcome lack of diversity for a claim by a P in a federal question case (limitation never applies in federal question cases).

P can also use supplemental jurisdiction to overcome a lack of amount in controversy for claims by Ps in diversity cases.
Can supplemental jurisdiction be used by any party other than the P to overcome either a lack of complete diversity or amount in controversy in and federal case?
Yes.
What are the reasons federal courts can decide not to exercise supplemental jurisdiction?
(1) when the federal question is dismissed early in the proceedings

(2) state law claim is complex

(3) state law issues would predominate
What party has the power to remove a case to federal court from state court?
Defendant.
What is the test for determining whether removing a case to federal court is proper?
D can remove the case if the case could be heard in federal court (federal subject matter jurisdiction is present) - the claim invokes diversity or federal question jurisdiction.
Where can a case be removed to?
The federal district embracing the sate court in which the case was originally filed.

Ex: case filed in state court in Macon, GA -> Middle District of GA
When must removal take place?
D must make request for removal no later than 30 days AFTER SERVICE of the first removable document. Usually, this means 30 days after initial service of process.
If a case has multiple defendants and one or more objects to removal, can removal be compelled?
No. All Ds must agree to removal.
What is the special removal rule for diversity cases?
Case cannot be removed if any defendant is a citizen of the forum state.

If the instate defendant is dismissed, then the case becomes removable because there is no defendant who is a citizen of the forum.
What is the Erie Doctrine basic rule?
IN DIVERSITY CASES, a federal court must apply state SUBSTANTIVE law.
What are the clear issues that are considered substantive law for Erie Doctrine purposes?
State law governs in a diversity case on these issues:

(1) elements of a claim or defense
(2) statute of limitations
(3) rules for tolling statute of limitations, and
(4) choice of law
For Erie doctrine purposes, what does a federal court do when there is a federal law on point that directly conflicts with state law?
Apple the federal law as long as it is valid.
What are the tests that a federal court should use if these is no clear federal law on point to determine whether an issue is substantive?
(1) outcome determinative: would applying or ignoring the state rule affect the outcome of the case? If so, it's probably a substantive rule, so should use state law.

(2) balance of interests: does either federal or state system have strong interest in having its rule applied?

(3) avoid forum shopping: in the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, should probably apply state law.
What is the proper venue for local actions?
Actions regarding ownership, possession or injury (including trespass) to land must be filed in the district where the land resides.
What is a transitory action?

Where does venue lie in a transitory action?
Any action that is not considered a local action.

IN any transitory case (diversity or FQ), plaintiff my lay venue in "any district where . . ." all Ds reside or where a substantial part of the claim arose.
What is the special venue rule for defendants who all reside in the same state?
P can sue all Ds in any district where any of the Ds reside.
Where to Ds (natural persons and corporations) reside for venue purposes?
Natural persons: residence = domicile.

Corporations: reside in all districts where it is subject to personal jurisdiction when the case is filed.
Where can a case filed in federal court be transferred to?
Case can only be transferred to a district where case could have been filed.

This means to (1) proper venue which (2) has personal jurisdiction over D.
What constitutes service of process?
Delivery of:

(1) a summons, and

(2) a copy of the complaint.
Who is eligible to serve process?
Any non-party who is at least 18 years old.

It is not required that the process server be appointed by the court.
What are the ways process can be served?
(1) personal service - anywhere in the forum state

(2) substituted service - service with someone a D's abode who is of suitable age & discretion who resides there.

(3) service on D's agent

(4) state law

(5) waiver by mail
What is the limitation on service to the D?
D cannot be served if they are in the state merely as a party or to serve as a witness in another civil case.
What are the requirements for notice pleading?
Pleadings must contain enough detail to allow the other side to be on notice and make a meaningful response.
What does Rule 11 require attorneys to do regarding pleadings and other litigation documents?
Requires attorney (or party representing himself) to sign all pleadings, written motions and papers (except discovery documents, which are treated by another rule).

Signing party certifies:
(1) paper is not for an improper purpose

(2) the legal contentions are non frivolous

(3) the factual contentions and denials of factual contentions have evidentiary support (or are likely to after further investigation)
What is the Rule 11 safe harbor rule?
Motion for Rule 11 violation is served on other parties but no immediately filed with the court. Party accused of violating Rule 11 has 21 days to withdraw the document or fix the problem. if they fail to do this, motion for sanctions can be filed.
Can the court raise Rule 11 problems on its own ("sua sponte")
Yes.
What is the new apparent requirement for pleading?
Federal courts have traditionally required "notice pleading." In 2007, however, the US S. Ct. stated that parties must plead facts supporting a plausible claim.
What type of special matters require pleading with specificity?
(1) Fraud

(2) Mistake and

(3) Special damages
How can D respond to P's complaint according to rule 12?
(1) by motion

(2) by answer

Either must be within 20 days after service of process
What are the Rule 12(b) defenses?
12(b)(1) - lack of subject matter jurisdiction

12(b)(2) - lack of personal jurisdiction

12(b)(3) - improper venue

12(b)(4) - insufficiency of process (problems with the papers)

12(b)(5) - insufficient service of process

12(b)(6) - failure to state a claim

12(b)(7) - failure to join indispensable party
What 12(b) defenses are waivable?
12(b)(2) - lack of personal jurisdiction

12(b)(3) - improper venue

12(b)(4) - insufficiency of process (problems with the papers)

12(b)(5) - insufficient service of process
How are 12(b) defenses waived?
Waiveable affirmative defenses must be put in the first Rule 12 response (motion or answer) or else they are waived.
What 12(b) defenses can be raised at any time during the trial?
12(b)(6) - failure to state a claim

12(b)(7) - failure to join indispensable party
What 12(b) defense can never be waived?
12(b)(1) - lack of subject matter jurisdiction
What are the timing requirements for filing an answer:
Serve within 20 days after service of process if D makes no motions; if D does make a Rule 12 motion, and it is denied, she must serve her answer within 10 days after court rules on the motion.

If D waives service, D has 60 days from P's mailing of waiver form in which to answer.
What types of counter claims are there?
Compulsory - arises from the same T/O as P's claim. Must be filed in the pending case, or it is waived.

Permissive - does not arise from the same T/O as P's claim. May be filed in the answer in the current case or can be asserted in a separate case.
What is a cross-claim?

Must a cross-claim be filed in the pending case?
An offensive claim against a co-party. It must arise from the same T/O as the underlying action.

Cross-claims are never compulsory.
What are the rights regarding amendments of pleadings?
P has a right to amend ONCE before D servers her answer. I P amends, D must respond within 10 days or the amount of time remaining on his 20 days, whichever is longer.

D has a right to amend once within 20 days of serving his answer.
When do amended pleadings after the statute of limitations has tolled relate back to the initial filing of the pleadings?
Amended pleadings "relate back" if they concern the same conduct, transaction or occurrence as the original pleadings.

Relation back means that you treat the amended pleadings as though they were filed when the original was filed.
When multiple Ps join their separate claims against one or several common Ds?
(1) the claims arise from the same T/O, and

(2) their claims raise at least one common question
When must a non-party (absentee) be forced to join litigation?
(1) without the absentee, the court cannot accord complete relief (worried about multiple suits)

(2) Absentee's interest may be harmed if he isn't joined (practical harm); or

(3) absentee claims an interest which subjects a party (usually D) to a risk of multiple obligations
Are joint tortfeasors considered necessary parties.
Never.
What will a court do if a necessary absentee cannot be joined?
(1) proceed without him, or

(2) dismiss the case entirely.
What is impleader?
A defending party wants to bring in someone new (third party defendant) for one reason: the TPD may owe indemnity or contribution to the defending party of the underlying claim.

Right to implead within 10 days after serving answer; after that, need court permission.
What is intervention?

Types of intervention?
Absentee wants to join a pending suit, eaither as a P or defendant.

intervention of right - absentee's interest may be harmed if she is not joined and her interest is not adequately represented now.

permissive intervention - absentee's claim or defense and the pending case have at least one common question. Discretionary with the court; OK unless delay or prejudice.
What is interpleader?
One holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency.

Twp types:

FRCP 22

Statutory interpleader
What are the requirements for a class action lawsuit in federal court?
(1) numerosity - Too many class members for practicable joinder

(2) commonality - there are some questions of law or fact in common to class

(3) typicality - representative's claims/defenses typical of those of the class; and

(4) representative adequate - The class representative will fairly and adequately represent the class.
What are the three types of class action suits?
(1) prejudice - class treatment necessary to avoid harm either to class members or to party opposing class. (Rare)

(2) Injunction or declaratory judgment (not damages) sought because class was treated alike by other party.

(3) Damages: (a) common questions predominate over individual questions; AND (b) class action is the superior method to handle the dispute.
When must the court notify the class of pendency of the class action?
IN a "Damages" type of case, the cour tmust notify class members, including individual notice (usually by mail) to all reasonably identifiable members. Class representative gives this notice.
Who si bound by the judgment in a class action case?
All members, except those who opt out of a damages class (Type 3). There is no right to opt out of a Type 1 or Type 2 class action.
What are you required to disclose to opposing counsel, no matter if they ask for it?
Rule 26(f) requires parties to, within 14 days of the Rule 26(f) conference, to identify persons adn documents "likely to ahve discoverable information that the disclosing party may use to support its claims or defenses," computation of damages and insurance for any judgment.

Parties must also disclose experts who may be used at trial.

No later than 30 days before trial, parties must give detailed info about trial evidence, including documents and identity of witnesses to testify live or by deposition.
What are the discovery tools available to parties?

What tools can be used to obtain information from non-parties?
(1) depositions (OK for non-party, but they must be subpoenaed).

(2) Interrogatories (mo more than 25 at one time, must be answered within 30 days).

(3) Requests to produce (propounded to another party, must be answered within 30 days).

(4) Physical or mental examination (only available through court order - party only).

(5) Request for admission (sent to another party, have 30 days to answer).
Under GA law, is there a duty to supplement an answer to a required or requested discovery if it is later discovered that the answer is incomplete or incorrect?
Yes.
What is the standard for the scope of discovery?
A party can discover anything "relevant to a claim or defense" (raised in the pleadings).

Relevant means "reasonably calculated to lead to the discovery of admissible evidence."
What type of information is not discoverable?
(1) Work product or "trial preparation materials" (unless opposing party can show that there is a substantial need and it is not otherwise available).

Absolutely protected information: (1) mental impressions, (2) opinions, (3) conclusions, and (4) legal theories.
Does work product have to be generated by a lawyer?
No. It can be prepared by a party or any representative of a party.
What must a party certify before obtaining an award of sanctions against an opposing party?
The party seeking sanctions must certify to the court that she tried in good faith to get the info without court involvement.
What are the serious violations sanctions available to the judge?
(1) establishment order (establishes facts as true)

(2) strike pleadings of the disobedient party (as to issue re the discovery)

(3) Disallow evidence form the disobedient party (as to issue re discovery)

(4) Dismiss P's case (if bad faith shown)

(5) enter default judgment against D (if bad faith shown).
What are the sanctions available against a non party?

Against an attorney?
Non party can be cited for contempt (for violating subpoena or court oder)

Attorney can be held liable for all expenses (including attorneys' fees) incurred by the other side if she counseled on of these bad acts.
Once a P voluntarily dismisses an action before D answers, can the P refile their claim?

What if the first action was filed in state court and then dismissed, and then the action was refiled in federal court?
Yes. P may voluntarily dismiss without prejudice ONCE before D serves her answer or a motion for summary judgment.

If a P dismisses a second time, it is dismissed with prejudice, even if the first action was filed and dismissed form state court.
What conditions must be met in order for the court to enter a default judgment against a party?
(1) D has made no response at all

(2) P's claim is for a sum certain (or calculable) (plus costs of litigation)

(3) P gives an affidavit that the sum is owed AND

(4) D is not a minor or incompetent.
What must a D show in order to set aside the default or a default judgment?
D must show good cause for the default and a viable defense.
Can a court review evidence when making a ruling on a FRCP 12(b)(6) motion?
No, Court looks only at the face of the complaint.
What is a motion for judgment on the pleadings?
Same type motion as a 12(b)(6), but this is the name when the motion is filed AFTER the D has answered.
Can affidavits be used as evidence for purposes of deciding summary judgment?
Yes. Affidavits are sworn statements - the are made under the penalty of perjury - so they can be evidence.
What are verified pleadings?
Verified pleadings are pleadings made under oath. These can be used as evidence, unlike traditional pleadings.
Can an affidavit by a party who says that he heard about some fact(s) related to the case form another person be admitted as evidence?
No. The evidence must be first hand knowledge. No hearsay can be used for summary judgment purposes.
Can you judge credibility of evidence when deciding summary judgment?
No, you do not judgment credibility of evidence on summary judgment (this is the job of the jury).
What is a Rule 21(f) conference?

When must this conference be held?
Unless the court order says otherwise, at least 21 days before the scheduling conference (or scheduling order is due), parties discuss claims, defenses and settlement. Parties must form a discovery plan and present it to the court in writing within 14 days.
What is the purpose of the final pretrial conference?
Final pretrial conference determines issues to be tried and evidence to be proffered. Recorded in pretrial conference order that basically supersedes the pleadings; may be amended "to prevent manifest injustice" (a tough standard).
Is there a right to a jury trial in federal court?

If so, in what types of cases?
Seventh Amendment (which applies ONLY in federal court (not in state court)) preserves the right to jury in 'civil actions at law," but not in suits at equity.

When a case involves issues of law and equity, a jury decides facts underlying the law claim, but not the equity claim. Jury issues are usually tried first, then equitable issues are tried to the court.
Must a party make a demand for a jury trial in federal court?

If so, when must this demand be made?
A party must demand IN WRITING no later than 10 days after service of the last pleading raising a jury triable issue.
How many "for cause" strikes does a party have during voir dire?

How many "peremptory strikes" (for any reason) does a party have during voir dire?
Strikes for cause: unlimited

Peremptory strikes: three

Note: Peremptory strikes must be used in a race and gender neutral way.
How many jurors serve on a federal jury?
No fewer than 6 jurors and no more than 12.
Does federal court allow for alternate jurors?

what happens if a juror is excused for cause, and the resulting number is less than the minimum required number of jurors?
There are no alternate jurors in federal court - all participate unless excused for good cause.

You cannot take a verdict from fewer than 6 jurors in federal court.
What is a judgment as a matter of law?

When is this motion brought?
Old name: directed verdict. This is an exceptional order, the effect of which is to take the case away from the jury.

This motion is brought after the other side has been heard. So usually D can move twice: at the close of P's evidence and at the close of all evidence. P - only at the close of all evidence.
What is the standard for granting a judgment as a matter of law?
Reasonable people could NOT DISAGREE on the result.

The court generally views evidence in the light most favorable to the nonmoving party.
What is a renewed motion for judgment as a matter of law?
Old name: judgment notwithstanding the verdict (JNOV).

Here, the judge lets the case go to the jury, which returns a verdict for one party, and the court enters judgment on the basis of the verdict. Now, the losing party files a renewed motion for judgment as a matter of law which, if granted, would result in a entry of a judgment for him.
When must a motion for a renewed motion for judgment as a matter of law be made?
Within 10 days after the entry of judgment.
Wat is the standard for granting a renewed motion for judgment as a matter of law.
Reasonable people could NOT DISAGREE on the result.

Court is saying that the jury reached a conclusion reasonable people could not have reached.
What is needed before one can move for a renewed motion for judgment as a matter of law?
The party MUST have already made a motion for judgment as a matter of law.
What is a motion for a new trial?
There is a judgment entered, but there are errors at trial that require a new trial. Something happened that makes the judge think the parties should start over and re-try the case.
When must a motion for a new trial be made?
Within 10 days after judgment.
What are the grounds upon which a motion for a new trial can be granted?
(1) prejudice (not harmless) error at trial makes the judgment unfair (e.g., wrong jury instruction; evidentiary ruling);

(2) new evidence that could not have been obtained with due diligence for the original trial;

(3) prejudicial misconduct of party or attorney or third party of juror (e.g., juror conducted independent investigation of accident);

(4) judgment is against the weight against the weight of the evidence (serious error of judgment by jury).
What are the grounds to set aside the judgment, and the corresponding time periods for filing a motion in such grounds?
(1) clerical error (anytime)

(2) mistake, excusable neglect or surprise (reasonable time - not more than 1 year)

(3) new evidence that could not have been found with due diligence for a new trial motion (reasonable time - not more than 1 year)

(4) judgment is void (reasonable time - no maximum)
What is the final judgment rule?
As a general rule, a party can appeal only from final judgments, which means an ultimate decision by the trial court on the merits of the entire case.
When must a notice of appeal be filed?

What court is this notice filed with?
Notice of appeal must be filed in the TRIAL COURT within 30 days after entry of the final judgment.
What is an interlocutory appeal?
A decision that can be appealed BEFORE a final judgment has been issued in the case.
What interlocutory orders are reviewable as of right?
(1) orders granting, modify, refusing, etc. injunctions;

(2) appointing, refusing to appoint receivers;

(3) findings of patent infringement where only an accounting is left to be accomplished by trial court;

(4) orders affecting possession of property (e.g., attachments)
What does the Interlocutory Appeals Act requires for interlocutory appeals?
Allows appeal of nonfinal order if the trial judge certifies that it involves a controlling issue of law as to which there is substantial ground for difference of opinion AND the court of appeals agrees to hear it.
What is the "collateral order" exception for interlocutory appeals?
Appellate court has discretion to hear ruling on an issue if it:

(a) is distinct from the merits of the case;

(b) involves an important legal question, and


(c) is essentially unreviewable if the parties must await a final judgment (e.g., claim of immunity from suit, such as a state's claim of Eleventh Amendment immunity from suit for damages).
If there are multiple claims presented in a case (e.g. claim and counterclaim), or there are multiple parties, can a court makes a final judgment as to one or more of these issues without making a final judgment on the case?
Yes.
What is an extraordinary writ?
Not technically an appeal, but an original proceeding in appellate court to compel the trial judge to make or vacate a particular order. Not a substitute for appeal; available only to enforce a clear legal duty.
Can a court of appeals review an order granting or denying certification of class action?

If so, when must a party seek such a review?
Yes.

Review of this decision must be sought within 10 days of an order.

Appeal does not stay proceedings at the trial court level unless trial judge or court of appeals so orders.