Civil Procedure and Fed. Jurisdiction MA

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Civil Procedure and Fed. Jurisdiction MA
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2013-07-25 17:47:18
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Civil Procedure Fed Jurisdiction MA
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Civil Procedure and Fed. Jurisdiction MA
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  1. Federal courts need both ________ jurisdiction and ________ jurisdiction over the parties.
    1. personal jurisdiction

    2. Subject matter jurisdiction.
  2. The two types of cases Federal courts may hear are:
    Diversity of citizenship and Federal question cases
  3. The two requirements for a diversity of Citizenship cases are:
    1. Case is between citizens of different states or between a citizen of a state and a citizen of a foreign country

    2. The amount in controversy exceeds 75K.
  4. The complete diversity rule holds that there is no diversity if:
    Any P is a citizen of the same state as any D.
  5. A natural person is a citizen in the state of her:
    domicile.
  6. Domicile is established by two factors:
    1. Presence in the state AND

    2. Intent to make it her permanent home
  7. Can a person have more than one domicile at a time?
    No.
  8. The test for diversity is applied when the case is:
    filed.
  9. A corporation is a citizen in:
    1. the state where incorporated and

    2. state where the corporation has its (one and only) principal place of business.
  10. A corporation's principal place of business is located where:
    its manager direct, coordinate and control corporate activities.
  11. For unincorporated business entities such as partnerships and LLCs, use the citizenship of
    members for diversity purposes.
  12. In a diversity case the amount in controversy must ________ 75K.
    Exceed.
  13. Aggregation may be used to increase the total claim amount for:
    1 P v. 1 D
  14. When suing for injunctive relief the amount in controversy may be satisfied by:
    1. The D's actions have done more than 75K in damage to the P.

    2. If it would cost the D more than 75K to comply with the injunction.
  15. A federal court will not hear any of the following actions:
    1. divorce

    2. alimony

    3. child custody

    4. Probate of an estate
  16. In Federal Question cases the complaint must show a right or interest founded:
    substantially on a federal law.
  17. According to the well pleaded complaint rule, it is not enough that some federal issue is raised by the complaint, the P's claim itself:
    must arise under federal law. The P must be enforcing a federal right.
  18. For every single claim, test whether it meets:
    1. Diversity or

    2. Federal Question
  19. Supplemental jurisdiction is used to:
    get an additional claim that does not meet diversity or FQ requirements.
  20. The test for supplemental jurisdiction is whether the new claim shares:
    a common nucleus of operative fact with the claim that invoked federal subject matter jurisdiction.
  21. Supplemental jurisdiction is always found for claims that:
    arise from the same transaction or occurrence.
  22. In a diversity case the plaintiff cannot use supplemental jurisdiction to overcome:
    a lack of diversity.
  23. In a FQ case the plaintiff can use supplemental jurisdiction to overcome:
    Lack of diversity on a claim.
  24. A non-federal, non-diversity claim can be heard in federal court if it meets the supplemental jurisdiction claim unless it is:
    1. Asserted by a Plaintiff

    2. In a diversity of citizenship case and

    3. Is against a citizen of the same state as the P
  25. Removal transfers a case from:
    a state trial court to a federal trial court.
  26. Removal may be completed:
    within 30 days of service of the first paper that shows the case is removable.
  27. A court has discretion to not hear the supplemental claim if:
    1. the federal question is dismissed early in the proceedings; or

    2. the state law claim is complex or

    3. state law issues would predominate
  28. A case can be removed if it meets:
    the requirements for diversity of citizenship or federal question.
  29. A case cannot be removed if:
    1. Any D is a citizen of the forum

    2. No removal more than one year after the case was filed in state court.
  30. A case can only be removed to:
    the federal district embracing the state court where the case was filed.
  31. The Erie Doctrine holds that, in diversity cases, Federal Courts must apply:
    state substantive law if there is no Federal law on point.
  32. A state law is substantive where:
    1. It is outcome determinative.

    2. Balance of interests

    3. Avoid forum shopping
  33. A venue determination tells us which:
    federal court should hear the case.
  34. A plaintiff may lay venue in any district where:
    1. all defendants reside or

    2. A substantial part of the claim arose.
  35. If all defendants reside in different districts of the same state:
    the P can lay venue in the district in which any D resides.
  36. A district court may only transfer a case to:
    a venue where the case could have been filed.
  37. A court may transfer a case to any district if:
    all parties consent and the court finds cause for the transfer.
  38. If venue is proper a court will transfer a case based on the interests of justice, the factors of which include:
    Public factors: what law applies, what community should be burdened with jury service, keeping local controversy in the local court

    Private factors: where are the witnesses and the evidence

    Transfer court must be the center of gravity for the case.
  39. The service of process includes:
    A summons and a copy of the complaint.
  40. Process must be served within:
    120 days of filing a case or it will be dismissed unless the P shows good cause for delay in serving.
  41. Personal service:
    Papers given to the D personally.
  42. Substituted service is ok if:
    It's the D's usual abode and it's left with someone of suitable age and discretion who resides there.
  43. Process may be served on the defendant's agent if:
    receiving service is in the scope of the agency.
  44. State law regarding service:
    You can use methods of service permitted by state law of the state where the federal court sits or where service is made.
  45. In order to use a waiver of service by mail:
    P must mail D a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form.
  46. If a D fails to return a waiver of service of form, the D must pay for the expenses of personal service:
    if the D did not have good cause for failing to return the waiver form.
  47. A defendant is immune from service while instate to be:
    a witness or party in another civil case.
  48. Rule 11, which applies to all documents except discovery, holds that the certifier has after reasonable inquiry determined that:
    1. The paper is not for an improper purpose

    2. The legal contentions are warranted by law and

    3. The factual contentions and denials of factual contentions have evidentiary support.
  49. A party who moves for Rule 11 sanctions cannot file it:
    until the party in violation is given a safe harbor of 21 days to fix the problem and avoid sanctions.
  50. A complaint must state:
    1. the grounds for subject matter jurisdiction

    2. A short and plain statement of the claim, showing that he is entitled to relief.

    3. Demand for relief sought
  51. Rule 12 requires a D to respond to a complaint by either:
    1. motion or

    2. answer
  52. A response to a complaint must be completed within:
    21 days after service of process. If the D waived service, they have 60 days to respond.
  53. In stating a claim in a complaint the plaintiff must plead facts that:
    would support a plausible claim.
  54. The three matters that must be supported with particularity and specificity are:
    Fraud, mistake, and special damages.
  55. A motion for a more definite statement is:
    in response to a pleading that is so vague the D cannot frame a response.
  56. A motion to strike is aimed at:
    immaterial things in a complaint.
  57. Rule 12(b) defenses are:
    1. lack of subject matter jurisdiction

    2. lack of personal jurisdiction

    3. improper venue

    4. insufficiency of process

    5. insufficient service of process

    6. failure to state a claim

    7 failure to join indispensable party
  58. The following Rule 12 defenses are waivable:
    • 2. lack of personal jurisdiction
    • 3. improper venue
    • 4. insufficiency of process
    • 5. insufficient service of process
  59. Waivable Rule 12 defenses must be:
    put in the first Rule 12 response or else they are waived.
  60. The answer is a ________ and it must be served within ______ days after served with process.
    pleading

    21
  61. An answer may respond to allegation by:
    1. admiting

    2. Denying

    3. Stating that he lacks sufficient information to admit or deny.
  62. A failure to deny will be treated as:
    an admission on any matter except damages.
  63. An answer may also raise _______ defenses if they are applicable to the case
    affirmative
  64. A counterclaim is a claim against an:
    opposing party
  65. A compulsory counterclaim arises from the same:
    transaction/occurrence as the plaintiff's claim and must be filed in the pending case or the claim is waived.
  66. A permissive counter claim does:
    not arise from the same T/O as P's claim. It may be filed in with an answer or asserted in a separate case.
  67. All counter claims may be brought in under :
    1. Diversity

    2. FQ jurisdiction

    3. Supplemental jurisdiction

    So long as they meet the necessary requirements.
  68. A crossclaim is a claim against a:
    co-party and it must arise from the same T/O as the underlying action.
  69. Cross-claims are never:
    compulsory.
  70. A plaintiff has the right to amend pleadings once:
    within 21 days after D serves her first Rule 12 response.
  71. A defendant has a right to amend once within:
    21 days of serving his answer.
  72. If there is no right to amend, the court will grant it if:
    justice so requires. The court will consider: delay, prejudice, and futility of the amendment when considering the request.
  73. Amended pleadings will relate:
    back if they concern the same conduct transaction or occurrence as the original pleading in order to avoid a statute of limitations problem.
  74. The discovery required disclosures are:
    1. Initial disclosures

    2. Experts and

    3. Pretrial
  75. Initial disclosures will require:
    a party within 12 days of a RUle 26(f) conference to identify documents or electronically stored information likely to have discoverable information that the disclosing party may use to support its claims or defenses
  76. Expert required disclosure entails:
    Identity of experts who may be used at tril and produce a written report containing the opinions, data used, qualifications, compensation for study, etc.
  77. Pretrial required disclosures include:
    detailed information about trial evidence, including documents and identity of witnesses to testify live or by deposition.
  78. Depositions are sworn oral:
    questions by counsel.
  79. A party may depose:
    non parties or parties of the litigation.
  80. Non parties who are to be deposed must be:
    subpoenaed, however, or she is not compelled to attend.
  81. Interrogotories are questions in writing to another party that are answered:
    under oath and must answer or object within 30 days.
  82. Only ______ interrogatories may be served without court order or stipulation
    25
  83. Requests to reproduce must be responded to within
    30 days of service either stating that the material will be produced or an objection.
  84. A request for an admission is a request by one party:
    to another party to admit the truth of any discoverable matters. Must respond within 30 days.
  85. Work product is presumptively:
    no discoverable.
  86. A party that seeks to withhold work product must claim the protection that:
    expressly and particularly describe the materials.
  87. Partial violation of discovery rules occurs when:
    the receiving party answers some and objects to others. If the objections are not upheld, this is a partial violation.
  88. A total violation of discovery rules occurs when:
    the receiving party fails to completely attend deposition, respond to interrogatories, or to respond to requests for production.
  89. Sanctions can be found against a party in partial violations of discovery rules when:
    1. You move for an order compelling the party to answer the unanswered questions, plus costs of bringing the motion.

    2. If the party violates the order compelling him to answer, RAMBO sanctions plus costs and could be held in contempt.
  90. For total violations of discovery rules go straight to:
    RAMBO sanctions.
  91. RAMBO sanctions include:
    costs and attorneys fees for bringing the motion and the judge may:

    1. Establish unaswered facts as true

    2. Strike pleadings of the disobedient party

    3. Disallow evidence from the disobedient party

    4. Dismiss the plaintiff's case (if bad faith is shown)

    5. Enter default judgment against the defendant (if bad faith is found)
  92. Joinder becomes an issue when the plaintiff is:
    structuring the case and may want multiple parties on one side or the other.
  93. Plaintiffs may be joined as co-parties when:
    1. the case arises from the same T/O

    2. Raise at least one common question
  94. Necessary parties are joined to case because they are:
    required, or necessary to the case.
  95. An absentee party is necessary when:
    1. Without A the court cannot accord complete relief among existing parties

    2. A's interest may be harmed if he is not joined; or

    3. A claims an interest which subjects a party to multiple obligations
  96. Joint tort-feasors are:
    not necessary parties.
  97. Impleader occurs when a defending party:
    wants to bring in someone new (a third party).
  98. There is a right to implead within 14 days of:
    serving an answer, after that, the defendant needs court approval.
  99. In order to implead a party the defendant must:
    file a third-party complaint naming the TPD and serve process on the TPD.
  100. All impleader actions must have:
    subject matter jurisdiction or supplemental jurisdiction over the claims
  101. In order to receive a class action certification a P must prove:
    Numerosity

    Commonality

    Typicality

    Representative adequacy
  102. Numerosity means:
    There are too many class members for practicable joinder.
  103. Commonality means:
    there is some issue in common to all class members, so resolution of that issue will generate answers for everybody.
  104. Typicality means:
    the Representative's claims are typical of those of the class
  105. Representative is adequate means:
    the Representative will fairly and adequately represent the class
  106. A class action must fit into the following three categories of lawsuits:
    1. Prejudice

    2. Injuction or declaratory judgment

    3. Damages
  107. A damages class action entails:
    1. common questions predominate over individual questions and

    2. class action is the superior method to handle the dispute.
  108. In a type 3 class action the court must notify class member that they are in a class by:
    individual notice to all reasonably identifiable members. The notice must tell them they can: opt out, they'll be bound if they don't, and they can enter a separate appearance through counsel.
  109. All class members are bound by a class action except:
    those who opt out of a Type 3 class action.
  110. In order for diversity in a class action to meet the amount in controversy:
    the representative's claim must exceed $75K and meet citizenship requirements.
  111. The Class Action Fairness Act allows a federal court to hear a class action (of at least 100 members) if any class member is of:
    diverse citizenship from any defendant and if the aggregated claims of the class exceed $5 Million.
  112. Voluntary dismissal is a right by:
    the plaintiff and it may be dismissed simply by filing a written notice of dismissal although the P may have to paty the D's costs.
  113. The first voluntary dismissal is dismissed:
    without prejudice but the second voluntary dismissal is with prejudice.
  114. A default is a notation by:
    the court clerk after the D has failed to respond within 21 days after being served with process.
  115. A claimant needs a default ______ to enforce and recover money or other remedies.
    judgment.
  116. The clerk of court can enter a default judgment if:
    1. D made no response at all

    2. The claim itself is for a sum certain in money

    3. Claimant gives an affidavit of the sume owed; AND

    4. D is not a minor or incompetent.

    If any of the above requriements are not met the claimant must go to the court itself for the judgment.
  117. Failure to state a claim 12 (b)(6) allows a defendant to:
    dismiss for fialure to state a claim. It tests only the sufficiency of the P's allegations.
  118. The FRCP 12(b)(6) motion test is:
    If the facts alleged were true, would the P win a judgment?
  119. In order to move for summary judgment there must be:
    1. no genuine dispute on a material fact and

    2. the P must be entitled to judgment as a matter of law
  120. If a D failed to deny an ellegation by the P it can be treated as a fact for purposes of:
    summary judgment.
  121. The 7th Amendment, which applies only to the federal courts, not state courts, preserves the right to jury in:
    civil actions at law, but not in suits at equity.
  122. A demand for a jury must be in writing no later than:
    14 days after service of the last pleading raising triable issues.
  123. A motion for judgment as a matter of law is brought after:
    the other side has been heard at trial.
  124. A renewed JMOL comes up after:
    the trial is complete. It must be filed 28 days after entry of the original judgment.
  125. Generally there is a right to appeal only from:
    final judgments.
  126. A final judgment is one where the:
    ultimate decision by the trial court is on the merits of the entire case.
  127. Interlocutory appeal may be filed:
    before a final judgment is entered.
  128. An interlocutory appeal may be filed for:
    orders granting, modifying or refusing injunctions, appointing, refusing to appoint receivers, findings of patent infringement where only an accounting is left to be accomplished by the trial court; orders affecting possession of property. Orders granting or denying certification of a class action within 14 days of order.

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