Civ Pro

Card Set Information

Civ Pro
2013-02-17 17:22:55
Civil Procedure

Bar Review
Show Answers:

  1. Personal Jurisdiction - Requirements (constitutional analysis MC=PJ)
    • 1. Long arm statute - state may limit what it wants to hear
    • 2. Constitutional analysis: Does D have - "such minimal contacts with the forum that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice"
  2. Subject Matter Jurisdiction - Federal Court (2 ways in)
    • Only Two ways into Fed Court:
    • 1. Diversity of citizenship: Claim must be over $75k and COMPLETE diversity, no P can be in any state with any D.

    2. Federal Question: Diversity and amount do not matter.  Only show that P is enforceing a Federal Right
  3. Subject Matter Jurisdiction - Federal Court - Supplimental Jurisdiction - When can you get Pedant or Ancillary SMJ
    • Generally you must find SMJ for all claims and parties, but if unable, try supplimental:
    • 1. Pendant Jurisdiction (Plaintiff): Fed question case, and their is a supplimental claim that was same transaction or occurance as Fed Claim. Court Discretion.
    • 2. Ancillary Jurisd (anybody but P): Anyone but P can sue any other party if same T&O. Court discretion
  4. Subject Matter Jurisdiction - Federal Court - When/who can get Removal
    Only applies to D.  If P filed in state but could have filed in Fed, then D can remove to Fed in the state of the suit
  5. Subject Matter Jurisdiction - Federal Court - Erie Doctrine (substitive and procedural apply state or fed law)
    • 1. In Diversity Cases, court must apply State Substantive law and Fed proceedure law.
    • 2. Determine if its substantive or procedure. If FRCP, use it.  If Not 3 Part Test:
    • a. Outcome Determanitive: Would applying state or fed affect the outcome of case, if yes then its substantive.
    • b. Balance of Interest: Does S or Fed have stronger interest
    • c. Avoid Forum Shopping: If Fed law applied would litigants flock to Fed Ct
  6. Jurisdiction - Venue - what jurisdiction to file in (3 considerations)
    • Once you decide to sue in Fed or Civ you need to decide what court house:
    • 1. Any District where all D's reside ( domicile or a district corp does biz in); or
    • 2. Substantial part of claim arose
    • 3. Can transfer venue if it could have originally been filed there
  7. Pleadings - Federal Court - What kind of pleading
    • 1. Federal Courts only require notice pleadings, not specific.
    • 2. Signed - Rule 11 attorney must sign and attest to its accuracy
  8. Pleadings - Federal Court - What do you need on your Complaint (4) extra element for fraud/special damages
    • 1. Statement of SMJ
    • 2. Short Statement of Claim
    • 3. Demand for Judgment
    • 4. Must plead with particularity: For a) Fraud; b) Mistake; c) Special Damages
  9. Pleadings - Federal Court - Defendants response - motions on the pleadings, 3 types of rule 12 motions
    • Rule 12 Motions:
    • 1. Issues to Form: Too vague
    • 2. Matters of Abatement: Must be raised in 1st response: a) lack of PJ; b) Improper venue; c) ineffective service
    • 3. Matters on Merrit 12(b)(6) Failure to state a claim; b) Judgment on Pleadings; c) Summary Judgment
  10. Pleadings - Federal Court - Defendants response - Answer when/what
    • 1. Must be filed in 20-days after service or 10 days after motion denied; Waives service then 60-days to respond
    • 2. Respond to each allegation: a) admint; b) Deny; 3) Lack of knowledge to admit or deny
    • 3. Must raise affirmative defenses
  11. Pleadings - Federal Court - Defendants response - What do you need for a Counter Claim - compulsiary/ permissive and SMJ
    • 1. Compulsiary: Arises from same T&O, Must be filed
    • 2. Permissive: Does not arise from the same T/O, does not need to be filed
    • 3. Find SMJ, if not, find Supplimental SMJ
  12. Pleadings - Federal Court - Defendants response - What do you need for a Cross Claim (2)
    • 1. Must arise same T/O
    • 2. Find SMJ, if not supplimental SMJ
  13. Pleadings - Federal Court - When can you Amend Complaint (2) and relation back theory
    • 1. Once b4 D answers
    • 2. Once for free w/i 20 days of answer
    • 3. Relation back.  If SOL, time will relate back to when original complaint filed.  If a new D, it will not relate back unless new D knew of the suit
  14. Joinder of Parties - MAY be Joined (5 requirements) when can you use supplimental jur
    • Court is liberal in allowing Joinder, its more efficient.  The following is permissive joinder:
    • 1. Claim arises T/O
    • 2. At least 1 common issue
    • 3. Personal Jurisdiction
    • 4. SMJ if not then
    • 5. Supplimental Jurisdiction (only Federal Question)
  15. Joinder of Parties - What parties MUST be Joined (3)
    • Party is necessary if:
    • 1. Without party, court cannot accord complete satisfaction
    • 2. Party's rights will be harmed
    • 3. Absentees claims subjects D to multiple suits
    • 4. If joinder is necessary but will destroy Diversity - Court will dismiss case
  16. Joinder of Parties - What is an Impleader and when must it be filed
    If D says that someone is vicariously liable. Must implead within 10-days of filing answer
  17. Joinder of Parties - Class Actions - What are the 5 Requirements
    • 1. Preliminary Questions
    • 2. Fit case within a category
    • 3. Notify Class
    • 4. Who is bound by judgment
    • 5. SMJ
    • 6. Court must approve settlement
  18. Joinder of Parties - Class Actions - 1 0f 5 Steps - What are the Preliminary Questions (6)
    • Preliminary Questions:
    • 1. Demonstrate too numorous for a joinder action
    • 2. Some question of law or fact common to all P's
    • 3. Representatives claims/defenses typical of class
    • 4. All members of class are bound except those that opt out
    • 5. SMJ - Amount in controversy, only representatives claim is $75k +, some jurisdictions require all P $75k
    • 6. Court must approve settlement
  19. Joinder of Parties - Class Actions - 2 0f 5 Steps - Fit Case in 1 of 3 categories 
    • 1. Prejudice: Non- class treatment would leave some P's w/o money
    • 2. Injunction: Class wants an injunction
    • 3. General Class: Predominant common issue or CA is the superior method
  20. Joinder of Parties - Class Actions - 5 0f 5 Steps - What do you need to get Subject Matter Jurisdiction of class (2)
    • 1. Domicile: only look at class rep
    • 2. Only $75k for class rep, some jurisdictions require $75k for all reps
  21. Discovery - What are the Required Disclosures (3)
    • 1. Initial Disclosures within 10 days of 26(f) Meeting: Identify names, documents w/ info relevant to disputed facts
    • 2. Identify Experts
    • 3. Pre-trial: 30 days b4 trial, detailed info about evidence at trial
  22. Discovery - Tools you can use
    • 1. Depo
    • 2. Interrogatories: only to parties - answer w/i thirty days (only 25)
    • 3. Physical/mental exams: (court order)
    • 4. Request for admissions: answer in 30-days (only 25)
    • 5. Request to produce: Non-party does not need to produce w/o subpeona. 30-days to produce
  23. Discovery - What is the Scope of discovery
    • 1. Standard: Anything reasonable to lead to admisssable evidence
    • 2. Privledged: Not discoverable
    • 3. Work Product: Anything made in anticipation of trial, not discoverable, except substantial need and otherwise admissable.
  24. Discovery - Enforcement discovery rights
    • 1. Protective order
    • 2. Motion to compel
    • 3. Sanctions
  25. What are the 5 ways to Terminate a Case w/o trial
    • 1. Voluntary Dismissal: 1 time for free, 2nd is dismissed w/ prejudice
    • 2. Default: entered by clerk
    • 3. Dismissal for failure to state claim: 12(b)(6) tests pleadings, not evidence
    • 4. Judgment on Pleadings: If did not bring a 12(b) before answering, then bring this motion
    • 5. Summary Judgment
  26. Termination of Case w/o trial - Summary Judgment (2 requirements)
    • Moving Party must prove:
    • 1. No Dispute to material issue or fact
    • 2. Entitled to a judgment as a matter of law
    • Purpose: Judge can apply the law and give a judgment based on non-disputed facts
  27. 3 types of Conferences and Meetings
    • 1. Rule 26(f): 14-days before scheduling hearing, Parties need to meet, discuss settlement and discovery plan
    • 2. Scheduling Order: 120 days after filing, court cuts off joinder, amendments. Sets out blue print for litigation
    • 3. Pretrial Conference: Court can hold as many as needed, foster settlement. Final pre-trial superceeds all pleadings
  28. When can you demand a jury trial, what jury strikes do you get
    • a. Demand: must demand jury no later than 10-days of service of last triable issue
    • b. Right: Right for legal, but not equitable cases
    • c. Jury selection: Unlimited strikes for cause, 3 for premptory
  29. What/when/standard is a Motion for Judgment as a matter of law
    • a. Effect: takes away from jury
    • b. When: D can request at end of P's case
    • c. Standard: Reasonable people could not disagree on result
  30. What/when/how request a Re-newed Motion for Judgment as a matter of law
    • Judgment not withstanding verdict:
    • 1. Prerequisit: Must have made original request
    • 2. Standard: reasonable people could not disagree
    • 3. Time: W/i 10-days after verdict
  31. Motion for Retrial - What Grounds (3) /when must you file
    • 1. Error at trial makes judgment unfair (wrong jury instructions)
    • 2. New Evidence
    • 3. Prejudicial misconduct by party or juror

    Must be filed in 10 days of verdict
  32. Appeal - When can you (2 instances)
    • 1. Final Judgment Rule
    • 2. Collateral Order Rule: Court has discretion to hear a ruling if it is distinct from the merits of the case, important legal question, not reviewable if wait til judgment
  33. Res Judicata & Collatteral Estoppel - Res Judicate ( claim preclusion) (3)
    • Only get one chance to sue for same COA:
    • 1. Both cases brought by P against D
    • 2. First case ended on merits (even default)
    • 3. Both cases involve same claim same T/O
    • 4. Some courts allow diff trial for property damages and PI
  34. Res Judicata & Collatteral Estoppel - Res Judicata, case preclusion (3 requirements), who can assert the right
    • A party or non-party can try to stop the other party from litigating an issue that was already determined in a prior suit:
    • 1. Essential element ended on valid judgment (not default)
    • 2. Same issue actually litigated in 1st case
    • 3. Issue was an essential element
    • 4.  Can only assert against one who WAS a PRIOR PARTY
  35. Res Judicata & Collatteral Estoppel - Collateral Estoppel (issue proclusion) - Who can assert it offensively & defensively and what are the requirements
    • Can be asserted by against a party from another case.  
    • 1. Defensively. A defendant can generally assert it against a P.
    • 2. Offensively: a P can assert against a D if fair:
    • a. Full opportunity to litigate
    • b. Could foresee multiple suits
    • c. P could not have been joined earlier
    • d. No inconsistant judgments
  36. Exam Rule Statement: For Federal Court to gain Personal Jurisdiction over a Defendant- 2 Part Test
    To determine if a federal court has PJ over a D, it must meet a two prong test: 1) Does the state statute allow it (Fed stands in the shoes of the state to determine PJ); and 2) Does D have sufficient minimal contacts with the forum such that PJ would be fair and reasonable.
  37. Exam Rule Statement: When there is a motion for Judment as A Matter of Law (JMOL)
    When viewing the evidence most favorable to a party, a reasonable jury would not have a legal basis to find for the party
  38. Exam Rule Statement: When determing is you must or can join a party (like when D is sued and he tries to force another D into the suit). Four-part test:
    A party should be joined if: 1) Complete relief cannot be given without joinder; 2) the absent party might be injured; 3) wothout joinder the paerties might be subject to future double obligations; 4) feasable to join them
  39. Exam Rule Statement: When court cannot invoke diversity SMJ how do you join a P (doesnt have a $75k claim), or cross-claim, or counter claim, how can the court apply Supplimental SMJ
    If court does not have original SMJ it can gain SMJ through Supplimental Jurisdiction. SJ requires the claims to arise from the same nucleous of fact ($75k hurdle can be waived)