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144 Cards in this Set
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Personal Jurisdiction requires that the defendant be _______________ to the forum state's jurisdiction and that the defendant be ______________________ _________. |
Personal Jurisdiction requires that the defendant be __amenable__ to the forum state's jurisdiction and that the defendant be __served with proper notice__. |
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Amenability to personal jurisdiction is governed by the ________________________, subject to the limits of the _________________________ of the United States Constitution. |
Amenability to personal jurisdiction is governed by the __Forum State's law__, subject to the limits of the __Due Process clause__ of the United States Constitution. |
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Pennoyer v. Neff described three bases for state jurisdiction over persons and things. They Are: - __________________: Jurisdiction over the person. - ___________: Jurisdiction over interests in property. - __________________: Jurisdiction over seized property, where Plaintiff's claim is unrelated to the seized property. |
Pennoyer v. Neff described three bases for state jurisdiction over persons and things. They Are: - __In personam__: Jurisdiction over the person. - __In rem__: Jurisdiction over interests in property. - __Quasi in rem__: Jurisdiction over seized property, where Plaintiff's claim is unrelated to the seized property. |
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Pennoyer based its jurisdictional formula on _______ _________ over persons and property within its borders. |
Pennoyer based its jurisdictional formula on __state power__ over persons and property within its borders. |
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Under Pennoyer's in personam jurisdiction, a judgment in plaintiff's favor: - would be _____________ in all states - for the __________________ of damages - may be ___________________________ until fully collected |
Under Pennoyer's in personam jurisdiction, a judgment in plaintiff's favor: - would be __binding__ in all states - for the __full amount__ of damages - may be __enforced repeatedly__ until fully collected |
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Under Pennoyer's in rem jurisdiction, a judgment in favor of plaintiff: - affects __________________________ in a res (both ____________ and ________________ to the lawsuit) - does not result in a _______________________ - does not require ___________________ outside the forum |
Under Pennoyer's in rem jurisdiction, a judgment in favor of plaintiff: - affects __everyone's interests__ in a res (both __parties__ and __nonparties__ to the lawsuit) - does not result in a __money judgment__ - does not require __enforcement__ outside the forum |
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Under Pennoyer's quasi in rem jurisdiction, a judgment in plaintiff's favor: - entitles plaintiff to the _______________________ __________________ - is not a _________________________ - is not ____________________________________ ___________ - may not be enforced ______________________ - may not be enforced ________________________ |
Under Pennoyer's quasi in rem jurisdiction, a judgment in plaintiff's favor: - entitles plaintiff to the __property attached for jurisdiction__ - is not a __personal judgment__ - is not __enforceable against any other property__ - may not be enforced __more than once__ - may not be enforced __outside the forum__ |
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Another type of jurisdiction not discussed in Pennoyer is ___________, which involves the state's authority to adjudicate on such matters as divorce, adoption, citizenship and mental competence. |
Another type of jurisdiction not discussed in Pennoyer is __status__, which involves the state's authority to adjudicate on such matters as divorce, adoption, citizenship and mental competence. |
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_____________________________________________ altered Pennoyer's rule for personal jurisdiction, replacing the concept of _________________ with the new standards of _____________________ and _____________ provided by the "minimum contacts test." |
__International Shoe Co v. Washington__ altered Pennoyer's rule for personal jurisdiction, replacing the concept of __state power__ with the new standards of __reasonableness__ and __fairness__ provided by the "minimum contacts test." |
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The current test for amenability, following International Shoe and other cases, does not require the minimum contacts test if the defendant satisfies any one of the four "traditional" bases for in personam jurisdiction. Those bases are: _______________ in the forum state _____________ to jurisdiction ___________ of objection to jurisdiction _______________________ in the forum when served |
The current test for amenability, following International Shoe and other cases, does not require the minimum contacts test if the defendant satisfies any one of the four "traditional" bases for in personam jurisdiction. Those bases are: __Residence__ in the forum state __Consent__ to jurisdiction __Waiver__ of objection to jurisdiction __Physical presence__ in the forum when served |
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Consent to jurisdiction has two forms, _____________ consent and ____________ consent. __________ ____________________ are an example of express consent, and ____________________________________ are an example of implied consent. |
Consent to jurisdiction has two forms, __express__ consent and __implied__ consent. __Forum selection clauses__ are an example of express consent, and __non-resident motorists statutes__ are an example of implied consent. |
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If none of the traditional bases are present, a state may only exercise in personam jurisdiction over defendants who have minimum contacts with the state. The two categories of minimum contacts are _________________________ and ___________ _______________. |
If none of the traditional bases are present, a state may only exercise in personam jurisdiction over defendants who have minimum contacts with the state. The two categories of minimum contacts are __specific jurisdiction__ and __general jurisdiction__. |
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__________________________ is where the lawsuit arises from or relates to the nonresident defendant's contacts with the forum state. __________________________ is where the lawsuit is unrelated to the nonresident defendant's contacts with the forum state. |
__Specific jurisdiction__ is where the lawsuit arises from or relates to the nonresident defendant's contacts with the forum state. __General jurisdiction__ is where the lawsuit is unrelated to the nonresident defendant's contacts with the forum state. |
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Specific jurisdiction has four contact tests, which are that the defendant: - ___________________________ itself of the benefits and protections of forum law - should have ______________ that its activity would subject it to jurisdiction in the forum state - could ____________________________ being haled into court in the forum state - placed its product in the _________________________ and could foresee that it would be used in the forum state |
Specific jurisdiction has four contact tests, which are that the defendant: - __purposefully availed__ itself of the benefits and protections of forum law - should have __foreseen__ that its activity would subject it to jurisdiction in the forum state - could __reasonably anticipate__ being haled into court in the forum state - placed its product in the __stream of commerce__ and could foresee that it would be used in the forum state |
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General jurisdiction has one contact test, which is that it has ________________________________ _______________ with the forum state. |
General jurisdiction has one contact test, which is that it has __continuous and systematic contacts__ with the forum state. |
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If the defendant has no contacts with the forum (and does not meet one of the four traditional bases of jurisdiction), then there is _____________ _________________ over that defendant. If, on the other hand, defendant does have specific or general contacts, then the court must consider the ______ _________________________________ test. This is a _______________ test with five factors, which are: - _________________________________ - _______________ interest in convenient and effective relief - _________________________________ - the ________________________________________ in furthering fundamental social policies - the ________________________________ in effective resolution of controversies |
If the defendant has no contacts with the forum (and does not meet one of the four traditional bases of jurisdiction), then there is __no personal jurisdiction__ over that defendant. If, on the other hand, defendant does have specific or general contacts, then the court must consider the __fair play and substantial justice__ test. This is a __balancing__ test with five factors, which are: - __burden on the defendant__ - __plaintiff's__ interest in convenient and effective relief - __the forum state's interest__ - the __shared interests of several states__ in furthering fundamental social policies - the __judicial system's interest__ in effective resolution of controversies |
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The due process requirement for notice to defendant is stated in Mullane v. Central Hanover. Notice is constitutionally sufficient if it is "_____________________________, under all circumstances, to apprise ________________ parties of the pendency of the action, and afford them an _____________________________ and __________ _____________." |
The due process requirement for notice to defendant is stated in Mullane v. Central Hanover. Notice is constitutionally sufficient if it is "__reasonably calculated__, under all circumstances, to apprise __interested__ parties of the pendency of the action, and afford them an __opportunity to appear__ and __present objections__." |
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An abbreviated version of the Mullane notice rule is that _________________ requires ____________ and an _______________________________. |
An abbreviated version of the Mullane notice rule is that __due process__ requires __notice__ and an __opportunity to be heard__. |
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Which rule of the Federal Rules of Civil Procedure deals with initially notifying the defendant of the lawsuit? ___________ |
Which rule of the Federal Rules of Civil Procedure deals with initially notifying the defendant of the lawsuit? __Rule 4__ |
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Under Fed. R. Civ. P. 4, the two primary methods for service of process on a competent adult are: - _______________________ to defendant - Leaving copies at _____________________________ with a person of __________________________________. |
Under Fed. R. Civ. P. 4, the two primary methods for service of process on a competent adult are: - __Personal delivery__ to defendant - Leaving copies at __defendant's residence__ with a person of __suitable age and discretion__. |
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In most cases, the federal method of service on defendants outside the district is by the _______ _______ statute of the state in which the federal court sits. |
In most cases, the federal method of service on defendants outside the district is by the __long arm__ statute of the state in which the federal court sits. |
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The purpose of the venue rules are: - _____________ to defendant - ____________________________ of caseload within the forum state |
The purpose of the venue rules are: - __Fairness__ to defendant - __Geographic allocation__ of caseload within the forum state |
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The federal statute for general venue provisions is __________________. |
The federal statute for general venue provisions is __28 U.S.C. 1391__. |
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The purpose of forum non conveniens is to move ________________________________________ based on fairness and convenience. |
The purpose of forum non conveniens is to move __cases from one forum to another__ based on fairness and convenience. |
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Subject matter jurisdiction refers to the court's authority to adjudicate based on the __________ _______ and in some cases, _______________________ ________________. |
Subject matter jurisdiction refers to the court's authority to adjudicate based on the __type of case__ and in some cases, __the dollar amount in controversy__. |
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Federal courts have subject matter jurisdiction over two types of cases: - _______________________ - _____________________________ |
Federal courts have subject matter jurisdiction over two types of cases: - __Federal question__ - __Diversity of citizenship__ |
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The statute dealing with general federal question jurisdiction is _____________________. It provides that federal courts have jurisdiction over any __________ ______________________________________________ ____________________ of the United States. |
The statute dealing with general federal question jurisdiction is __28 U.S.C. § 1331__. It provides that federal courts have jurisdiction over any __case or controversy arising under the Constitution, Laws, or treaties__ of the United States. |
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In addition to the general federal question provisions in 28 U.S.C. 1331, there are specific statutes on federal question jurisdiction, including actions against (name three): ___________________, ______________, _______________, ______________, ____________, _______________________, and __________ _____________________________________. |
In addition to the general federal question provisions in 28 U.S.C. 1331, there are specific statutes on federal question jurisdiction, including actions against (name three): __foreign states__, __admiralty__, __patents__, __civil rights__, __consuls__, __internal revenue__, and __United States as plaintiff or defendant__. |
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Diversity jurisdiction is covered by _____________ _______. That statute provides that federal courts have subject matter jurisdiction over claims between _________________________________, or between _______ ___________ and ____________________, where the amount in controversy _____________________. |
Diversity jurisdiction is covered by __28 U.S.C. § 1332__. That statute provides that federal courts have subject matter jurisdiction over claims between __citizens of different states__, or between __state citizens__ and __foreign citizens__, where the amount in controversy __exceeds $75,000__. |
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Although the constitution requires only ___________ diversity, 28 U.S.C. §1332 requires ______________ diversity. This means that all plaintiffs must have different citizenship than all defendants. |
Although the constitution requires only __partial__ diversity, 28 U.S.C. §1332 requires __complete__ diversity. This means that all plaintiffs must have different citizenship than all defendants. |
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For diversity purposes, a corporation has two citizenships, which are: - ____________________________ - _________________________________ |
For diversity purposes, a corporation has two citizenships, which are: - __State of incorporation__ - __Principle place of business__ |
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For diversity purposes, partnerships have the citizenship of _____________________. |
For diversity purposes, partnerships have the citizenship of __all the partners__. |
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The amount in controversy is determined by plaintiff's __________________________. |
The amount in controversy is determined by plaintiff's __good faith pleading__. |
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In achieving the amount in controversy, may plaintiff aggregate (answer yes or no): - All of Plaintiff's claim against one defendant? _______ - Alternate theories of recovery for the same wrong? ______ - Claims of different plaintiffs? ______ - Claims against different defendants? ______ |
In achieving the amount in controversy, may plaintiff aggregate (answer yes or no): - All of Plaintiff's claim against one defendant? __Yes__ - Alternate theories of recovery for the same wrong? __No__ - Claims of different plaintiffs? __No__ - Claims against different defendants? __No__ |
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In some cases, a related claim that lacks diversity or federal jurisdiction may be included. This is called _________________________________. |
In some cases, a related claim that lacks diversity or federal jurisdiction may be included. This is called __supplemental jurisdiction__. |
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Federal courts traditionally abstain from _________ ______, ____________ and __________________ ________________. |
Federal courts traditionally abstain from __family law__, __probate__ and __state criminal proceedings__. |
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If plaintiff has filed his action in state court, and jurisdiction is proper in federal court, defendant may remove the case to federal court. This is done by filing a ________________________ in federal court, attaching a copy of _______________________________ and __________________ to the state court and all parties. |
If plaintiff has filed his action in state court, and jurisdiction is proper in federal court, defendant may remove the case to federal court. This is done by filing a __Notice of Removal__ in federal court, attaching a copy of __all state court pleadings__ and __giving notice__ to the state court and all parties. |
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If there is a ___________________ defect in the removal, the case must be remanded to state court no matter when the objection is made. |
If there is a __jurisdictional__ defect in the removal, the case must be remanded to state court no matter when the objection is made. |
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If there is a ________________ defect in the removal, the case must be remanded to state court if a __________________________________________. |
If there is a __procedural__ defect in the removal, the case must be remanded to state court if a __proper and timely objection is filed__. |
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State court subject matter jurisdiction is governed by ______________. |
State court subject matter jurisdiction is governed by __state law__. |
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In state courts, subject matter jurisdiction is designated by _________________ and/or ________ ___________. |
In state courts, subject matter jurisdiction is designated by __type of case__ and/or __dollar amount__. |
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In Texas, state district courts have _________ ______________ over all claims of _________ or more in controversy. |
In Texas, state district courts have __general jurisdiction__ over all claims of __$500__ or more in controversy. |
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Federal courts have ______________ jurisdiction over patent claims. Federal and state court share ________________ jurisdiction over _______________ ________________. |
Federal courts have __exclusive__ jurisdiction over patent claims. Federal and state court share __concurrent__ jurisdiction over __federal civil rights actions__. |
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A court has _____________ jurisdiction if it is the required forum at the beginning of the case. A court has ______________ jurisdiction if it may adjudicate a case only after it has been heard in a lower court. |
A court has __original__ jurisdiction if it is the required forum at the beginning of the case. A court has __appellate__ jurisdiction if it may adjudicate a case only after it has been heard in a lower court. |
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A Texas state district court has _____________ jurisdiction over any dispute involving $500 or more, and _______________ jurisdiction over appeals from Texas state agency decisions. |
A Texas state district court has __original__ jurisdiction over any dispute involving $500 or more, and __appellate__ jurisdiction over appeals from Texas state agency decisions. |
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A federal district (trial) court has ______________ jurisdiction over appeals from federal administrative agency decisions. |
A federal district (trial) court has __appellate__ jurisdiction over appeals from federal administrative agency decisions. |
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The United States Supreme Court has _____________ jurisdiction over disputes between states. |
The United States Supreme Court has __original__ jurisdiction over disputes between states. |
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The Rules of Decision Act provides that "the _______ _________________________, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as ______________________ in civil actions in the courts of the United States, in cases where they apply." |
The Rules of Decision Act provides that "the __laws of the several states__, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as __rules of decision__ in civil actions in the courts of the United States, in cases where they apply." |
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____________________ interpreted the Rules of Decision Act to require federal courts to apply the __________ ____________________________ in cases where state law applied. |
__Swift v. Tyson__ interpreted the Rules of Decision Act to require federal courts to apply the __general American common law__ in cases where state law applied. |
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Erie Railroad Co. v. Tompkins reversed Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply ________________ _________________________________________. |
Erie Railroad Co. v. Tompkins reversed Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply __the law of the state in which that federal court sits__. |
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_____________________________ coined the "____________ ______________________," which provides that the ________ Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative. |
__Guaranty Trust v. York__ coined the "__outcome determinative test__," which provides that the __Erie__ Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative. |
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________________________ modified the ____________ ______________________, holding that the court should __________________________________________ in the case to determine which interests were stronger. __________ further held that one factor of the balancing test is whether the state law in question is ________________________________ outcome determinative. Thus, _________ gives more importance to state laws that absolutely change the outcome of the case. |
__Byrd v. Blue Ridge__ modified the __outcome determinative test__, holding that the court should __balance state and federal interests__ in the case to determine which interests were stronger. __Byrd__ further held that one factor of the balancing test is whether the state law in question is __absolutely or definitively__ outcome determinative. Thus, __Byrd__ gives more importance to state laws that absolutely change the outcome of the case. |
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To determine the content of state law in federal court, the Erie Doctrine directs that the court look to ____________________ and ____________________ __________________________. Persuasive (but not binding) authority is found in _____________ ___________________ and ________________________ ________________. Erie also allows courts to make an _____________________ as to state law. |
To determine the content of state law in federal court, the Erie Doctrine directs that the court look to __state statutes__ and __decisions from the state's highest court__. Persuasive (but not binding) authority is found in __lower state appellate courts__ and __federal court opinions on state law__. Erie also allows courts to make an __educated guess__ as to state law. |
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The Rules Enabling Act (28 U.S.C. § 2072) provides the United States Supreme Court may enact the _______________________________________, provided that no rule may _________________________________ any substantive right. |
The Rules Enabling Act (28 U.S.C. § 2072) provides the United States Supreme Court may enact the __Federal Rules of Civil Procedure__, provided that no rule may __abridge, enlarge, or modify__ any substantive right. |
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The most prominent Rules Enabling case is _________ ____________, which resolves the conflict between the Rules Enabling Act and the __________________. |
The most prominent Rules Enabling case is __Hanna v. Plumer__, which resolves the conflict between the Rules Enabling Act and the __Erie Doctrine__. |
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___________ v. Plumer also provides the current version of the ________ Doctrine, holding that if there is no ______________________________________ on point, then apply the Byrd test subject to the _____________ __________. |
__Hanna__ v. Plumer also provides the current version of the __Erie__ Doctrine, holding that if there is no __Federal Rule of Civil Procedure__ on point, then apply the Byrd test subject to the __twin aims of Erie__. |
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Choice of law is the process by which courts determine which ________________________ law will be applied in a case. |
Choice of law is the process by which courts determine which __state's or nation's__ law will be applied in a case. |
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Choice of law rules may be _______________ or __________________. |
Choice of law rules may be __statutory__ or __common law__. |
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One example of a choice of law statute is Texas Civil Practice and Remedies Code § 71.031, which provides that in wrongful death actions the law of the state _________________________________ will govern. |
One example of a choice of law statute is Texas Civil Practice and Remedies Code § 71.031, which provides that in wrongful death actions the law of the state __where the death occurred__ will govern. |
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One example of a common law choice of law rule is the Texas case of Duncan v. Cesna, which holds that Texas courts will use the "___________________ ______________________" to choose the governing law. This rule applies except where there is a ____________ ______________________, or where the action is based on contract that contains a ______________________ __________. |
One example of a common law choice of law rule is the Texas case of Duncan v. Cesna, which holds that Texas courts will use the "__most significant relationship test__" to choose the governing law. This rule applies except where there is a __statutory choice of law rule__, or where the action is based on contract that contains a __valid choice of law clause__. |
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In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules in _________________________________________ ______. |
In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules in __the state of which the federal court sits__. |
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In federal court, Plaintiff's initial pleading is called a _______________. It must contain: a. An allegation of ________________________________ b. A short and plain _____________________________ showing that the pleader is ______________________ c. A demand for _______________. |
In federal court, Plaintiff's initial pleading is called a __complaint__. It must contain: a. An allegation of __subject matter jurisdiction__ b. A short and plain __statement of the claim__ showing that the pleader is __entitled to relief__ c. A demand for __judgment__. |
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In federal court, defendant's answer must respond to each paragraph of plaintiff's complaint with one of the following: a. _______________ b. ___________ c. statement that defendant __________________ __________________________ |
In federal court, defendant's answer must respond to each paragraph of plaintiff's complaint with one of the following: a. __admission__ b. __denial__ c. statement that defendant __lacks sufficient knowledge to respond__ |
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In addition to the foregoing, defendant may plead ___________________________. If defendant fails to plead these, they are ____________. Name three examples: _______________________________; _________________ _______; ___________; ___________________________; _______________________________; ______________; ______________________________; ______________; ____________; _________________; ______________________ |
In addition to the foregoing, defendant may plead __affirmative defenses__. If defendant fails to plead these, they are __waived__. Name three examples: __contributory negligence__; __assumption of risk__; __fraud__; __statute of limitations__; __discharge in bankruptcy__; __estoppel__; __failure of consideration__; __payment__; __release__; __res judicata__; __statute of frauds__ |
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F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a _________________________, and that the pleading is (1) not being presented for any ________________________; (2) _________________ _______________ or a _____________________________ for the extension, modification, or reversal of existing law or the establishment of new law; (3) supported by the ______________, or will likely be after a reasonable opportunity for discovery. _______ __________ must be warranted on the evidence or based on a reasonable lack of information or belief. |
F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a __reasonable inquiry__, and that the pleading is (1) not being presented for any __improper purpose__; (2) __warranted by existing law__ or a __nonfrivolous argument__ for the extension, modification, or reversal of existing law or the establishment of new law; (3) supported by the __evidence__, or will likely be after a reasonable opportunity for discovery. __Fact denials__ must be warranted on the evidence or based on a reasonable lack of information or belief. |
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If plaintiff's initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a __________ __________________________________ under F.R.C.P. 12(e). This must be filed ____________ the Answer. |
If plaintiff's initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a __Motion for More Definite Statement__ under F.R.C.P. 12(e). This must be filed __before__ the Answer. |
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Defendant may use a ______________________ under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter. |
Defendant may use a __Motion to strike__ under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter. |
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Defendant should always challenge plaintiff's Complaint by a _____________________________________ _________________, under F.R.C.P. 12(b)(6). This allows the court to test the ______________________ of plaintiff's claim. |
Defendant should always challenge plaintiff's Complaint by a __Motion to Dismiss for Failure to State a Claim__, under F.R.C.P. 12(b)(6). This allows the court to test the __legal sufficiency__ of plaintiff's claim. |
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Defendant may challenge ___________________ _______________ at any time. Defendant must challenge ___________________________ and ___________ at the first opportunity or waive them. |
Defendant may challenge __subject matter jurisdiction__ at any time. Defendant must challenge __personal jurisdiction__ and __venue__ at the first opportunity or waive them. |
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Two types of counterclaims are _________________ and ________________. A _________________ counterclaim is one related to plaintiff's claim. If it is not asserted, it is ____________. |
Two types of counterclaims are __compulsory__ and __permissive__. A __compulsory__ counterclaim is one related to plaintiff's claim. If it is not asserted, it is __waived__. |
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A third party claim is one brought by a defendant against a _______________. It is based on ________________ liability. _____________ may also bring a third party claim in defense of a counterclaim. |
A third party claim is one brought by a defendant against a __new party__. It is based on __derivative__ liability. __Plaintiff__ may also bring a third party claim in defense of a counterclaim. |
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Pleadings may be amended to add new _________ ______________, and new ___________ or _____________ _________. |
Pleadings may be amended to add new __factual allegations__, and new __claims__ or __causes of action__. |
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If a pleading adds a new claim that is barred by the statute of limitations, that new claim is allowed if it is related to the original claim and if the new claim would have been timely if filed with the original claim. This is the "_______________________________" in Fed. R. Civ. P. 15(c). |
If a pleading adds a new claim that is barred by the statute of limitations, that new claim is allowed if it is related to the original claim and if the new claim would have been timely if filed with the original claim. This is the "__doctrine of relation back__" in Fed. R. Civ. P. 15(c). |
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The doctrine of relation back also allows a plaintiff to add a new defendant after the statute of limitations has run if the ____________________ in Rule 15(c) is satisfied. |
The doctrine of relation back also allows a plaintiff to add a new defendant after the statute of limitations has run if the __balancing test__ in Rule 15(c) is satisfied. |
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If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff's ___________________________________. |
If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff's __Motion for Trial Amendment__. |
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One exception to the liberal federal pleading rule ("short plain statement of the claim") is that allegations of __________ must be plead with particularity. |
One exception to the liberal federal pleading rule ("short plain statement of the claim") is that allegations of __fraud__ must be plead with particularity. |
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Until recently, most state courts used code pleading, which required plaintiff to plead ____________________ relating to every element of his claim. |
Until recently, most state courts used code pleading, which required plaintiff to plead __ultimate facts__ relating to every element of his claim. |
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Many states have abandoned code pleading, replacing it with ___________ pleading requirements based on the _______________________________________. |
Many states have abandoned code pleading, replacing it with __notice__ pleading requirements based on the __Federal Rules of Civil Procedure__. |
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Texas still requires plaintiff to plead _____________ _________. However, it may not be necessary in each case to plead every _____________. |
Texas still requires plaintiff to plead __causes of action__. However, it may not be necessary in each case to plead every __element__. |
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Many state courts still permit a _______________, with which defendant challenges the ________ ______________ of plaintiff's claim. This is similar to F.R.C.P. 12(b)(6) Motion to Dismiss for Failure to State a Claim. Texas does not permit a demurrer. |
Many state courts still permit a __demurrer__, with which defendant challenges the __legal sufficiency__ of plaintiff's claim. This is similar to F.R.C.P. 12(b)(6) Motion to Dismiss for Failure to State a Claim. Texas does not permit a demurrer. |
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F.R.C.P. 13(a) requires defendant to assert any opposing claim against plaintiff that _______________ ___________________________________ that is the subject matter of plaintiff's claim. This is known as a ________________________________. If defendant fails to assert such a claim, he is __________ from raising the same claim in a later lawsuit. |
F.R.C.P. 13(a) requires defendant to assert any opposing claim against plaintiff that __arises out of the transaction or occurrence__ that is the subject matter of plaintiff's claim. This is known as a __compulsory counterclaim__. If defendant fails to assert such a claim, he is __barred__ from raising the same claim in a later lawsuit. |
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Exceptions to the requirement of asserting the claims discussed in the preceding question include: a. where defendant ______________________ of plaintiff's claim prior to filing an Answer. b. where the counterclaim has not ___________ or ______________. c. where the counterclaim requires an additional party over whom the court __________________ _______________. d. where the counterclaim is the subject of ______________________________. e. where plaintiff's action is not based on ___________________________ over defendant (i.e. an ___________ action). |
Exceptions to the requirement of asserting the claims discussed in the preceding question include: a. where defendant __wins a dismissal__ of plaintiff's claim prior to filing an Answer. b. where the counterclaim has not __arisen__ or __matured__. c. where the counterclaim requires an additional party over whom the court __lacks personal jurisdiction__. d. where the counterclaim is the subject of __another pending action__. e. where plaintiff's action is not based on __personal jurisdiction__ over defendant (i.e. an __in rem__ action). |
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Permissive joinder allows any party to join _______________________ against _____________________. |
Permissive joinder allows any party to join __unrelated claims__ against __existing parties__. |
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In spite of the liberal rules for permissive joinder, all crossclaims and third party claims must be _______________ the plaintiff's claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an _______________ claim. |
In spite of the liberal rules for permissive joinder, all crossclaims and third party claims must be __related to__ the plaintiff's claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an __unrelated__ claim. |
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Compulsory parties are those who must be joined if possible. F.R.C.P. 19 addresses this issue in two parts: a. Rule 19(a) identifies ______________________, who must be joined if feasible. b. Rule 19(b) addresses what must happen when ___________________________. |
Compulsory parties are those who must be joined if possible. F.R.C.P. 19 addresses this issue in two parts: a. Rule 19(a) identifies __required parties__, who must be joined if feasible. b. Rule 19(b) addresses what must happen when __joiner is not feasible__. |
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F.R.C.P. 20 governs permissive joinder of parties. It permits _______________________ to join in one lawsuit if a. each plaintiff asserts any right to relief arising out of the _____________________________________, or series of transactions and occurrences, _________ b. "any question of ________________ common to all these persons will arise in the same action."
Rule 20 also permits ____________________________ to ________________________________ if they meet this test. |
F.R.C.P. 20 governs permissive joinder of parties. It permits __multiple plaintiffs__ to join in one lawsuit if a. each plaintiff asserts any right to relief arising out of the __same transaction, occurrence__, or series of transactions and occurrences, __AND__ b. "any question of __law or fact__ common to all these persons will arise in the same action."
Rule 20 also permits __one or more plaintiffs__ to __join multiple defendants__ if they meet this test. |
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Two other requirements for naming parties to a lawsuit are: a. ___________________________ b. _____________ |
Two other requirements for naming parties to a lawsuit are: a. __Real party in interest__ b. __Capacity__ |
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Procedural devices for adding multiple parties include: a. ________________________________________ b. __________________ c. __________________ d. _________________ e. ____________________________________ |
Procedural devices for adding multiple parties include: a. __Impleader, or Third Party Action__ b. __Interpleader__ c. __Intervention__ d. __Class Action__ e. __Shareholders' Derivative Suit__ |
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The scope of discovery, both in Texas and federal courts, is all matters "___________________" that are "_____________________________________________________ ___________________________." |
The scope of discovery, both in Texas and federal courts, is all matters "__not privileged__" that are "__reasonably calculated to lead to the discovery of admissible evidence__." |
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The forms of discovery are: - _____________________ - ______________________________________ - _______________________________ - ______________________ - __________________________ - __________________________________________ - ______________________________ |
The forms of discovery are: - __interrogatories__ - __requests to produce or inspect__ - __subpoenas duces tecum__ - __oral depositions__ - __written depositions__ - __physical and mental examinations__ - __requests for admission__ |
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Privileges shield information from discovery, such as: -_______________________________ -______________________ -______________________________
Discovery exemptions have a similar effect. These include -__________________________________________ -______________________________________ (in Texas state courts) |
Privileges shield information from discovery, such as: -__attorney-client privilege__ -__spousal privilege__ -__doctor-patient privilege__
Discovery exemptions have a similar effect. These include -__attorney work product exemption__ -__client investigatory exemption__ (in Texas state courts) |
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The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are ____________. |
The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are __waived__. |
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In addition to waiver,the privileges and exemptions may have exceptions that _____________________ ______________. |
In addition to waiver,the privileges and exemptions may have exceptions that __permit or require disclosure__. |
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Devices for dismissal include: a. _______________ dismissal b. _________________ dismissal for failure to prosecute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense. c. Dismissal for _____________________________. |
Devices for dismissal include: a. __Voluntary__ dismissal b. __Involuntary__ dismissal for failure to prosecute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense. c. Dismissal for __failure to state a claim__. |
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A Motion for Judgment on the Pleadings may be filed by ____________________________________. In deciding the motion, the court will look only to the ______________________________ to determine if that pleading has stated a __________ or _____________. |
A Motion for Judgment on the Pleadings may be filed by __either plaintiff or defendant__. In deciding the motion, the court will look only to the __nonmovant's pleadings__ to determine if that pleading has stated a __claim__ or __defense__. |
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F.R.C.P. 56 provides that for summary judgment, the ____________ is on the _____________ to show that: a. There is no _____________________________________, and b. Movant is _________________________________________ ______. |
F.R.C.P. 56 provides that for summary judgment, the __burden__ is on the __movant__ to show that: a. There is no __genuine issue of material fact__, and b. Movant is __entitled to judgment as a matter of law__. |
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One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleading] is that a summary judgment motion may include ______________. In addition, the court is entitled to examine other evidence in the __________________, such as discovery on file with the court. |
One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleading] is that a summary judgment motion may include __evidence__. In addition, the court is entitled to examine other evidence in the __court record__, such as discovery on file with the court. |
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For summary judgment under Rule 56(b) (in favor of the party not having the burden of proof at trial), the movant may meet the first part of the burden (no dispute of material fact) by: a. ___________________________________________________ _____________ b. ______________ portions of nonmovants essential fact allegations (Adickes) c. Pointing to the record, after a ____________________ ________________, and alleging that nonmovant lacks sufficient evidence to support an ____________ ___________ of her case, upon which nonmovant has the ______________________________. (Celotex) |
For summary judgment under Rule 56(b) (in favor of the party not having the burden of proof at trial), the movant may meet the first part of the burden (no dispute of material fact) by: a. __Assuming all of nonmovant's fact allegations to be true__ b. __Negating__ portions of nonmovants essential fact allegations (Adickes) c. Pointing to the record, after a __reasonable time for discovery__, and alleging that nonmovant lacks sufficient evidence to support an __essential element__ of her case, upon which nonmovant has the __burden of proof at trial__. (Celotex) |
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For summary judgment under Rule 56(a) (in favor of the party bearing the burden of proof at trial), the movant must meet the burden of proof by _____________________________________________________ of the claim or defense. |
For summary judgment under Rule 56(a) (in favor of the party bearing the burden of proof at trial), the movant must meet the burden of proof by __offering evidence to establish each element__ of the claim or defense. |
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Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden shifts to _________________, who may defeat the motion for summary judgment by: a. _____________________________, or b. ____________________________________________ ________________________. |
Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden shifts to __nonmovant__, who may defeat the motion for summary judgment by: a. __Creating a fact dispute__, or b. __Showing that the law does not entitle movant to judgment__. |
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In deciding the motion for summary judgment, the court must view the evidence in the _____________ __________________________________. |
In deciding the motion for summary judgment, the court must view the evidence in the __light most favorable to the nonmovant__. |
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To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which _____________________________________. If reasonable minds could not differ, then there is no fact dispute, and the judge may render summary judgment. |
To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which __reasonable minds could differ__. If reasonable minds could not differ, then there is no fact dispute, and the judge may render summary judgment. |
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Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is whether there is _____________ ____________ to withstand a motion for ___________ ___________, that is, sufficient evidence to send the case to a jury. |
Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is whether there is __sufficient evidence__ to withstand a motion for __directed verdict__, that is, sufficient evidence to send the case to a jury. |
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If a party lacks evidence to respond to a motion for summary judgment, that party may seek _____________________ under Rule 56(f). |
If a party lacks evidence to respond to a motion for summary judgment, that party may seek __additional time__ under Rule 56(f). |
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In federal court, the trial issues of law and fact are governed by a ____________________. In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the ______________________. |
In federal court, the trial issues of law and fact are governed by a __Pretrial Order__. In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the __latest pleadings__. |
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The process of questioning prospective jurors is called ______________. |
The process of questioning prospective jurors is called __voir dire__. |
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There are two kinds of challenges to prospective jurors:
___________________________ are based on the court's ruling that reasonable cause exists to excuse that person from jury service based on a possibility of prejudice against one of the parties, or some other bias in the case.
______________________________ allow the parties a limited number of "strikes" to excuse prospective jurors for no stated reason |
There are two kinds of challenges to prospective jurors:
__Challenges for cause__ are based on the court's ruling that reasonable cause exists to excuse that person from jury service based on a possibility of prejudice against one of the parties, or some other bias in the case.
__Peremptory challenges__ allow the parties a limited number of "strikes" to excuse prospective jurors for no stated reason |
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Asking the court to order all witnesses other than parties to leave the room is known as ___________ ____________. |
Asking the court to order all witnesses other than parties to leave the room is known as __invoking the rule__. |
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A defendant may move for the ________________ ____________ if he has the burden of proof on all the remaining issues. |
A defendant may move for the __right to open and close__ if he has the burden of proof on all the remaining issues. |
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Under the Seventh Amendment to the United States Constitution, all parties have a right to trial by jury in ____________________________ exceeding __________ __________ in controversy. |
Under the Seventh Amendment to the United States Constitution, all parties have a right to trial by jury in __cases at common law__ exceeding __twenty dollars__ in controversy. |
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Parties have no constitutional right to trial by jury in ___________ cases. However, the states may grant the right to jury trial in equity cases. |
Parties have no constitutional right to trial by jury in __equity__ cases. However, the states may grant the right to jury trial in equity cases. |
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The right to jury trial is presumed to exist under a federal statute unless that statute ____________ ___________ the right. |
The right to jury trial is presumed to exist under a federal statute unless that statute __expressly excludes__ the right. |
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If a party fails to request a jury within the time allowed by ________________, the right to jury trial is ____________. |
If a party fails to request a jury within the time allowed by __forum law__, the right to jury trial is __waived__. |
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After all evidence and arguments have been presented, the judge describes the applicable law to the jury in _______________________. If the judge instructs the jury incorrectly on an issue of law, this is _________________ even though it applies to the jury's function. |
After all evidence and arguments have been presented, the judge describes the applicable law to the jury in __jury instructions__. If the judge instructs the jury incorrectly on an issue of law, this is __appealable__ even though it applies to the jury's function. |
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If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the _______ ___________________. |
If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the __trier of law and fact__. |
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As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that "directed verdict" and "judgment notwithstanding the verdict" are both known as "___________________________________." |
As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that "directed verdict" and "judgment notwithstanding the verdict" are both known as "__judgment as a matter of law__." |
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In a jury trial, at the close of plaintiff's evidence, defendant may move for a __________________________ _________ (the old directed verdict) under Fed. R. Civ. P. 50(a). The judge may grant it if, viewing the evidence in the ________________________________ ___________, a reasonable jury could not find for plaintiff. |
In a jury trial, at the close of plaintiff's evidence, defendant may move for a __judgment as a matter of law__ (the old directed verdict) under Fed. R. Civ. P. 50(a). The judge may grant it if, viewing the evidence in the __light most favorable to the plaintiff__, a reasonable jury could not find for plaintiff. |
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The judge should __________ the motion for directed verdict if: a. A _____________________could find in plaintiff's favor, or b. The judge wishes to let the case proceed and consider the question later. |
The judge should __deny__ the motion for directed verdict if: a. A __reasonable jury__could find in plaintiff's favor, or b. The judge wishes to let the case proceed and consider the question later. |
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If the motion for judgment as a matter of law (or directed verdict) is denied, defendant presents his case. At the close of defendant's evidence, ______________________________ may move for judgment as a matter of law, which may be granted if, looking at all the evidence favorable to the _________________, and only the unquestionable evidence in ______________ favor, a reasonable jury could only find for movant. |
If the motion for judgment as a matter of law (or directed verdict) is denied, defendant presents his case. At the close of defendant's evidence, __plaintiff and defendant__ may move for judgment as a matter of law, which may be granted if, looking at all the evidence favorable to the __nonmovant__, and only the unquestionable evidence in __movant's__ favor, a reasonable jury could only find for movant. |
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After the jury has returned its verdict, the losing party may move for _____________________________ _____ (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within _______ days after entry of judgment. However, movant must have filed a motion for ________________ ___________________ during the trial as a prerequisite. |
After the jury has returned its verdict, the losing party may move for __judgment as a matter of law__ (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within __28__ days after entry of judgment. However, movant must have filed a motion for __judgment as a matter of law__ during the trial as a prerequisite. |
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After trial, the losing party may file a Motion for New Trial within _______________________ days after entry of Judgment. The trial judge may grant a new trial on any of the following grounds: - _______________ - __________________________________ - _________________ - result contrary to the _______________________ ____________ |
After trial, the losing party may file a Motion for New Trial within __twenty-eight (28)__ days after entry of Judgment. The trial judge may grant a new trial on any of the following grounds: - __trial error__ - __newly discovered evidence__ - __misconduct__ - result contrary to the __great weight of the evidence__ |
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The Court of Appeals may reverse the trial judge's grant of a Motion for New Trial only if there was _________________ to support the granting of a new trial. |
The Court of Appeals may reverse the trial judge's grant of a Motion for New Trial only if there was __no evidence__ to support the granting of a new trial. |
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Courts may grant a new trial, conditioned on remittitur or additur. _______________ orders a new trial unless plaintiff accepts a lesser amount of damages. _____________ orders a new trial unless defendant agrees to pay extra damages. Federal law prohibits ____________ as a violation of the right to jury trial. |
Courts may grant a new trial, conditioned on remittitur or additur. __Remittitur__ orders a new trial unless plaintiff accepts a lesser amount of damages. __Additur__ orders a new trial unless defendant agrees to pay extra damages. Federal law prohibits __additur__ as a violation of the right to jury trial. |
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A new trial may be granted for newly discovered evidence if the following conditions are met: - the new evidence was discovered _________________ _______ - the new evidence was not discoverable by ___________________________ prior to the first trial - the new evidence is not _________________________ - the new evidence will ____________________________ _________ |
A new trial may be granted for newly discovered evidence if the following conditions are met: - the new evidence was discovered __after the first trial__ - the new evidence was not discoverable by __reasonable diligence__ prior to the first trial - the new evidence is not __merely cumulative__ - the new evidence will __probably produce a new result__ |
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An exception to the "reasonable diligence" requirement in the prior question is that even if the new evidence was discoverable by reasonable diligence, a new trial will be granted if to do otherwise would be a _________________________ __________. |
An exception to the "reasonable diligence" requirement in the prior question is that even if the new evidence was discoverable by reasonable diligence, a new trial will be granted if to do otherwise would be a __grave miscarriage of justice__. |
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Under F.R.C.P. 60(a), a party may correct __________ _____________ and other ________________________ in a judgment. Under F.R.C.P. 60(b), a party may ask for a new trial based on __________________________________ ________. |
Under F.R.C.P. 60(a), a party may correct __clerical mistakes__ and other __inadvertent errors__ in a judgment. Under F.R.C.P. 60(b), a party may ask for a new trial based on __newly discovered evidence or fraud__. |
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A party may also challenge a final judgment by ________________________ alleging ________ ________________________ or __________. |
A party may also challenge a final judgment by __filing a new action__ alleging __newly discovered evidence__ or __fraud__. |
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Thus there are three methods for a judgment based on newly discovered evidence or fraud: a. ___________________________ (Rule 59) b. ________________________________________ (Rule 60) c. _____________________
One principle difference between these three is the _________ allowed for filing. |
Thus there are three methods for a judgment based on newly discovered evidence or fraud: a. __Motion for New Trial__ (Rule 59) b. __Motion for Relief from Judgment__ (Rule 60) c. __A New Lawsuit__
One principle difference between these three is the __time__ allowed for filing. |
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Appellate courts primarily review ________________ ______. In order to receive appellate review, there must be plain error that was ____________ _____________ by a ______________________. |
Appellate courts primarily review __questions of law__. In order to receive appellate review, there must be plain error that was __properly preserved__ by a __timely objection__. |
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Appellant may preserve error by objecting at the time of the error and making known to the court: a. the ____________________, or _______________________ _________, and b. the _____________ therefor. |
Appellant may preserve error by objecting at the time of the error and making known to the court: a. the __action desired__, or __the objection to the action__, and b. the __grounds__ therefor. |
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Appellate courts may also review the jury's decision, but only as to the _________________________________, which is also a question of ________. |
Appellate courts may also review the jury's decision, but only as to the __sufficiency of the evidence__, which is also a question of __law__. |
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_______________ courts may review the trial judge's Findings of Fact in a __________________. The standard of review is _______________________. |
__Appellate__ courts may review the trial judge's Findings of Fact in a __nonjury trial__. The standard of review is __clearly erroneous__. |
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The four procedures for appearing before the Supreme Court are: a. _______________________ 28 U.S.C. §§ 1254(1), 1257 b. __________________ 28 U.S.C. § 1254(2) c. __________________________________________________ _________ 28 U.S.C. § 1253 d. __________________________ U.S. Const., Art. III 28 U.S.C. § 1251 |
The four procedures for appearing before the Supreme Court are: a. __Writ of Certiorari__ 28 U.S.C. §§ 1254(1), 1257 b. __Certification__ 28 U.S.C. § 1254(2) c. __Direct Appeal from decisions of three judge courts__ 28 U.S.C. § 1253 d. __Original Jurisdiction__ U.S. Const., Art. III 28 U.S.C. § 1251 |
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Preclusion is the doctrine that limits relitigation of issues and claims. The two kinds of preclusion are: - _______________________ - ______________________ |
Preclusion is the doctrine that limits relitigation of issues and claims. The two kinds of preclusion are: - __Claim preclusion__ - __Issue preclusion__ |
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Another name for preclusion is "_________________." |
Another name for preclusion is "__res judicata__." |
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Claim preclusion includes the doctrines of ____________ and ________. |
Claim preclusion includes the doctrines of __merger__ and __bar__. |
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Merger applies to judgments for _____________. It provides that a ____________________ judgment for plaintiff (a) prevents plaintiff from suing again, except in a collection action on the judgment, and (b) bars defendant's defenses in an action on the judgment. |
Merger applies to judgments for __Plaintiff__. It provides that a __valid and final__ judgment for plaintiff (a) prevents plaintiff from suing again, except in a collection action on the judgment, and (b) bars defendant's defenses in an action on the judgment. |
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Bar applies to judgments for ________________. It provides that a judgment for defendant _______ ________________________________ on the same claim. |
Bar applies to judgments for __Defendant__. It provides that a judgment for defendant __bars another action by plaintiff__ on the same claim. |
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The elements of claim preclusion are: a. _________________ b. __________________ c. _______________________________ |
The elements of claim preclusion are: a. __same claim__ b. __same parties__ c. __valid and final judgment__ |
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Claim preclusion does not apply to certain actions, including: a. Dismissal on grounds of _________________, ___________, or ___________________ b. __________________________________ c. Where preclusion is ________________________ d. __________________courts (in some jurisdictions) |
Claim preclusion does not apply to certain actions, including: a. Dismissal on grounds of __jurisdiction__, __venue__, or __party joinder__ b. __Nonsuit without prejudice__ c. Where preclusion is __denied by statute__ d. __Small claims__courts (in some jurisdictions) |
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Issue preclusion is also known as ____________ ____________. |
Issue preclusion is also known as __collateral estoppel__. |
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Issue preclusion does not apply to whole lawsuits, but to: a. issues of ________________ b. that were _______________________ c. that ended in a _______________________________ d. where determination of that issue was ______________ to the judgment, and e. where the judgment is ________________________ ____________________ |
Issue preclusion does not apply to whole lawsuits, but to: a. issues of __law or fact__ b. that were __actually litigated__ c. that ended in a __valid and final judgment__ d. where determination of that issue was __essential__ to the judgment, and e. where the judgment is __binding on the party being estopped__ |
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Issue preclusion no longer requires ________________ __________. This is also known as "offensive collateral estoppel." It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a __________ and (b) had a ________________________________ ___________. |
Issue preclusion no longer requires __mutuality of parties__. This is also known as "offensive collateral estoppel." It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a __party__ and (b) had a __full and fair opportunity to litigate__. |
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The Law of the Case Doctrine is another preclusion device that prevents relitigation of the same issues within _______________________ prior to final judgment. |
The Law of the Case Doctrine is another preclusion device that prevents relitigation of the same issues within __the same lawsuit__ prior to final judgment. |
