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Flashcards

Civil Procedure

Abbi Van Hook Civ Pro Final English 105 cards

Cards in this deck (105)

  1. 1Every state has what three statutes allowing PJ?1. A statute that allows PJ based on traditional basis
    2. A non-resident motorist act (like Hess)
    3. Long Arm statutes: A list of things a ∆ can do to subject themselves to PJ
  2. 2What are the three types of PJ?In personam
    In rem
    Quasi in rem
  3. 3What is the traditional analysis for PJ?Derived from Pennoyer:
    1. ∆ is served with process in the forum
    2. ∆'s agent is served in the forum
    3. ∆ consents
  4. 4What is the Burnam split and to what does it apply?The split between Scalia and Brennan in the Burnam decision regarding whether the traditional analysis for PJ is enough. Scalia says yes b/c historical pedigree. Brennan says no, you must apply Shoe too.
  5. 5What is the modern test for PJ?Derived from Shoe, "Jurisdiction is okay if ∆ has such minimum contacts with the forum that jurisdiction does not offend traditional notions of fair play and substantial justice."
  6. 6What are the three components of relevant contact?1. Purposeful availment
    2. Foreseeability
    3. Stream of Commerce
  7. 7Describe purposeful availment.This is the standard found in Denckla. It cannot be a random contact, the ∆ must avail themselves to the benefits and protection of the forum. A ∆ can also avail themselves without physically going to the forum based on The Effects Theory. (Calder)
  8. 8Describe foreseeability.The contact must be rendered foreseeable, not simply possible. This is found in WWV.
  9. 9What are the two Stream of Commerce Theories?Found in Asahi (and then in McIntyre), Brennan and O'Connor have a split. Brennan says reasonability satisfies stream of commerce. O'Connor says reasonability plus intent to serve specific forums.
  10. 10For PJ, where does relatedness come in?This is the first question. It asks whether the claim arises from the ∆'s contact with the forum. Yes: then we can use specific jurisdiction. No: then we can use general jurisdiction.
  11. 11What is the historic view of general jurisdiction?The forum would have general jurisdiction over the ∆ is they had continuous and systematic ties with the forum.
  12. 12What is the new view of general jurisdiction?Derived from Goodyear and Diemler, general jurisdiction over a ∆ is where they are at home.
  13. 13What is the difference between general jurisdiction for a human and for a corporation?A human is at home where domicile. A corporation is at home in two places: place of incorporation and any principle place of business. These are places where there is pervasive contact.
  14. 14When does the question of Fairness arise?This comes up in a specific jurisdiction analysis under the modern rule set out in Shoe, "traditional notions of fairness"...
  15. 15What are the five fairness factors?1. Burden on ∆. Burger King: would have to show it is such a grave inconvenience that there is a lack in fairness in litigation.
    2. Forum states interest
    3. π interest
    4. Efficiency
    5. Shared substantive policies
  16. 16What are the four clauses of consent that can be found and will be enforced between two parties?1. Forum Selection Clause
    2. Permissive Forum Selection Clause
    3. Choice of Law Provision
    4. Cognitive Clause
  17. 17Define In ream and Quasi in rem power over the ∆'s property.In Rem: When the lawsuit is about the ownership of the property being used for jurisdiction. Quasi in rem: When the dispute has nothing to do with the ownership of the property.
  18. 18What are the old and new rule for using in rem/quasi in rem as a basis for jurisdiction?Old Rule: The court must attach the property because of the outset of the case (think Pennoyer). New Rule: Quasi/in ream jurisdiction is dead. Old rule not enough, must meet international shoe standard. Harris v. Balk.
  19. 19What Rule governs notice?Rule 4.
  20. 20What Rule governs service to an individual?Rule 4(e)
  21. 21According to Rule 4(e) what are the four ways to serve notice?1. Personal Service
    2. Substitutive: must be 1) done at the defendants dwelling or usual abode and 2) someone of suitable age and discretion who resides there.
    3. Serve an agent
    4. Using state law where federal court sits for service of process.
  22. 22Name and describe the two rules that govern service of process for a business.1. Rule 4(h)(1): serve an officer or general agent.
    2. Rule 4(e)(1): Using state law where federal court sits for service of process.
  23. 23What is Rule 4(d)?This is waiver of service by mail. This is a formal waiver, but not a defense. This gives the party 60 days to respond to the claim.
  24. 24What is the Constitution Test for notice?According to Mullane, notice must be reasonably calculated under the circumstances to apprise the party of the proceeding. All Rule 4 methods are considered constitutional.
  25. 25How is SMJ different from Venue?SMJ asks what court (state or federal) has power over the case. Venue asks exactly what Federal court you can go to.
  26. 26What claims can state courts hear?State courts can basically hear everything except some specific federal only cases like bankruptcy. State courts are the only one that can hear divorce and probate cases.
  27. 27What three types of claims can federal courts hear?According to Article 3, federal courts can hear:
    1. Diversity claims
    2. Federal question claims
    3. Claims over which it has supplemental jurisdiction
  28. 28State the complete diversity rule.There is no diversity if any π is a citizen of the same state of the ∆.
  29. 29What is a citizen for US citizens?You are a citizen of the state where you are domicile. This requires 1) physical presence and 2) mental presence.
  30. 30What is the citizenship of a corporation?According to §1332(c)(1):
    1. State where incorporated
    2. State where they have the principle place of business
  31. 31What is a corporations principle place of business?According to the Hertz case, "the PPB is where the managers direct, control, the corporate activities. It is the corporations NERVE CENTER, usually where the headquarters are.
  32. 32What is the citizenship of an unincorporated business?The citizenship can be found by looking at the citizenship of all members of the business.
  33. 33What are the two requirements for diversity citizenship?1. Case between citizens of different states
    2. Amount in controversy EXCEEDS 75K
  34. 34Does the amount in controversy matter for a Federal Question claim?No.
  35. 35Define a federal question.According to §1331, it is any case that arises under federal law.
  36. 36What is the Motley Rule?For a case to arise under federal law, it must be the well pleaded complaint. It must be the claim itself, not some affirmative defense. (π needs to be enforcing a federal right.)
  37. 37Describe supplemental jurisdiction.Supplemental jurisdiction gets a non-federal, non-diverse claim into federal court. The case must already be in federal court, however. It is the added claim that is getting supplemental jurisdiction because every claim brought must meet SMJ. This is at the courts discretion.
  38. 38What are the two questions you ask regarding supplemental jurisdiction?Does §1367(a) grant jurisdiction?
    Does §1367(b) take it away?
  39. 39Describe §1367(a).Supplemental jurisdiction is granted if the claims have a common nucleus of operative facts--if they are from the same transaction or occurrence.
  40. 40What are the three main points of §1367(b).1. Applies only to diversity cases.
    2. It takes away jurisdiction over claims by the π, not the ∆.
    3. Only bars claims in four instances.
  41. 41What is removal?This is a vertical (not horizontal) move. A case is removed from state trail court to federal trial court. Removal only goes from state to federal.
  42. 42What are the three general rules for removal?1. ∆ can remove if the case could have been filed in federal court. However, in diversity cases, you can't remove to a forum where the ∆ is citizen.
    2. Must be removed within 30 days of service. This refreshes for each newly served ∆.
    3. All ∆ must join. Must be unanimous.
  43. 43True of False: Claims involving federal questions where the π and the ∆ are diverse are always removable, regardless of the citizenship of the parties.True.
  44. 44What does §1447(e) address?This addresses a ∆ adding a party to bar removal. The court will determine whether there is a good reason for the new party to be in the case.
  45. 45Under §1391(b), what are the π's choices for venue?1. Any district where all the ∆s reside. If all ∆ reside in the forum, venue can be anywhere any of them reside.
    2. Where a substantial part of the event arose.
  46. 46How do you determine where one "resides"?Humans reside in the district where they are domicile (physically and mentally present). Businesses reside in all districts where they are subject to PJ for the present case (incorporation and PPB).
  47. 47What is a transfer of venue?This is moving from one court to another in the same judicial system. (Atlantic Marine: a forum selection clause will be enforced through this.)
  48. 48What is the difference between §1404(a) and §1406(a)?1404 is when the transferor is a proper venue, but because of public and private factors, convenience allows for the transfer to another proper venue. 1406 is when the transferor is improper. The claim must be transferred in the interest of justice or dismissed.
  49. 49What is forum non-convenience?This is when a court dismisses because there is another court, in a different judicial system, that is far more convenient. Looking at public and private factors, the other court must be an adequate forum. (Helicopter case)
  50. 50What is the Earie Doctrine?A federal judge must apply state substantive law in a federal case. (10th Amend.)
  51. 51What is the Hanna Prong of the Earie Doctrine?If there is a federal directive on point or a federal law addressing the issue, then you must apply federal law, as long as its valid.
  52. 52What are the two theories for analysis for the Earie Doctrine?The Outcome Determination Theory: matters are substantive if they determine the outcome. Apply state law if federal would result in a different outcome.
    Balance of Interests Theory: Don't have to apply the state law if there is a federal systemic interest. (weighed against the states interests)
  53. 53What are the twin aims of Earie?1. Avoidance of forum shopping.
    2. Avoidance of unfair administration of the law.
  54. 54What does Pleadings involve?The complaint and the ∆'s response.
  55. 55What are the three things every complaint must have?1. Statement of SMJ
    2. Short plain statement of the claim
    Demand for relief
  56. 56Explain the historic and modern approach to the statement of the claim.Historically: this was a notice pleading and did not go into great detail.
    Modern (Twambli and Iqbal): Courts will ignore conclusions of law but focus on allegations of face; π's facts must state plausible claim (not possible); and judge subjectively decides plausibility.
  57. 57A ∆ must respond within 21 days (unless waived notice, than 60). In what three ways can a ∆ respond?1. Default
    2. Pre-trail motion
    3. Answer
  58. 58What is Rule 55?This is the Rule governing defaulting. A default judgment occurs when the result is inevitable (people obviously haven't paid or someone can't hire a lawyer).
  59. 59What is the difference between a motion and a pleading?Motion: it is a request for a court order/action and can come at anytime in litigation. Pleading: initiate suit and establish parties initial factual contentions.
  60. 60What are the two pre-trail motions?1. Rule 12(e): Motion to strike
    2. Rule 12(b): Move to dismiss on...
  61. 61List Rule 12(b)(1-7)1. SMJ
    2. PJ
    3. Venue
    4. Improper process (summons and copy of complaint)
    5. Improper service of process
    6. Failure to state a claim
    7. Failure to join an indispensable party
  62. 62What are the restraints on Rule 12(b) motions?Rule 12(b):
    (1): is never waived
    (2-5): Must be in the first Rule 12 response (motion or answer). Can be waived.
    (6-7): can be raised for the first time anytime through trial
  63. 63What must the answer address?substantive and procedural matters.
  64. 64Where are denials and affirmative defenses raised?In the answer.
  65. 65True or False: Failure to deny is not an admission.False. Except regarding damages, it is always an admission.
  66. 66List and describe the two types of denials.General denial: The ∆ denies each and every allegation of the complaint. Specific denial: The ∆ denies each and every allegation in a specific paragraph of the complaint.
  67. 67When Rule 12(b)(1-7) is raised in the answer, it is called...An affirmative defense. This injects new facts. If the ∆ is right, they will win on it.
  68. 68What are the joinder rules for a π?Rule 18(a), a π can join any claim they have.
  69. 69What are the two types of claim joinder by a ∆?Counter claim (Rule 13(a-b)) and cross claim.
  70. 70What are the two types of counter claims?Compulsory and permissive.
  71. 71Define a compulsory counter claim.this arises from the same transaction or occurrence. You must assert it in the case, unless already sued on it.
  72. 72Define a permissive counter claim.Rule 13(b): It does not arise from the same transaction or occurrence. You do not have to assert it.
  73. 73An affirmative answer to any of the Four Plant Test means a claim is compulsory. What is the Four Plant Test?1. Are the issues of fact and law raised by the claim and CC largely the same?
    2. Would res judicata bar a subsequent suit on the ∆'s claim absent the CC rule?
    3. Will substantially the same evidence support or refute π's claim as well as ∆'s CC?
    4. Is there any logical relation between the claim and the CC?
  74. 74What is a cross claim?A claim against a co-party, not opposing, but must arise from the same transaction and occurrence. (Always meets 1367(b)).
  75. 75What is the test for proper parties under Rule 20(a)?1. Arise from the same action or occurrence
    2. Raise at lease 1 common question
  76. 76What are the three types of third-party joinders?Indispensable parties, impleader, and intervention.
  77. 77What is the standard for bringing in indispensable parties?Rule 19(a)(1):
    1. Without the absentee the court can't accord complete relief.
    2. The absentee's interest may be harmed if they are not joined.
    3. The absentee's interest subjects the ∆ to multiple or inconsistent obligations.
  78. 78What three questions must be answered for the joinder of an absentee to be feasible?1. PJ
    2. SMJ
    3. Won't ruin diversity
  79. 79What are the two actions you can take if the absentee is not feasible?Proceed without absentee or dismiss case
  80. 80Describe an Impleader.This is when the ∆ is bringing in someone new. Can be done only if the new party is liable to the ∆ for the π's claim against ∆. (Usually for indemnity or conformation.)
  81. 81Describe Intervention.Rule 24: The absentee is bringing themselves into the case. Can be on either side.
  82. 82List and define the types of intervention?Rule 24(a)(2): Intervention of right. You have a right to intervene if your interests may be harmed if you are not joined.
    Rule 24(b)(2): Permissive Intervention. Absentee must show that their claim or defense has at least one common question with the pending case.
  83. 83True or False: The rules surrounding discovery are very broad.True. Discovery has very loose standards. This is so that there are no surprises at trial.
  84. 84What are the three stages of Discovery?1. Rule 26(f) Conference
    2. Initial Disclosure under Rule 26(a)
    3. Requests for further information under Rule 26(a)(3)
  85. 85What happens during Initial Disclosure under Rule 26(a)?The parties provide information without request from the other party. You must identify people and describe things with discoverable information that you may use to support your case at trial. Also, the insurance that is covering the claim. This is within the 14 days after the conference.
  86. 86What can happen if a party can show "good cause" during the stages of discovery?If the party can show "good cause" the court may grant an even broader discover "of any matter relevant to the subject matter involved in the action".
  87. 87What are the two requirements for discoverable information?1. Relevant to a claim or defense (anything reasonably calculated to lead to admissible evidence)
    2. not privileged
  88. 88What are the 5 main tools of discovery?1. Depositions: Rule 30
    2. Interrogatories
    3. Request to Produce: Rule 34
    4. Medical Exam: Rule 35
    5. Request to Admit: Rule 38
  89. 89What is the work product rule?Rule 26(b)(3): Work product is not discoverable. It is any material prepared in anticipation of litigation. However, it can be overcome.
  90. 90What is an adverse inference sanction?This is a sanction that the court uses when there has been spoliation of evidence. The jury is told that they must assume the thing spoiled contained something against the person who was mean to provide it.
  91. 91What are the 3 requirements for an adverse inference sanction?1. Duty to preserve
    2. Culpable state of mind (ordinary neglect)
    3. Relevance
  92. 92What are the four ways that a claim can be adjudicated before it gets to trial?1. Abandonment by π
    2. contractual resolution
    3. Dismissal
    4. Summary Judgment
  93. 93What is an expert according to Federal Rule of Evidence 702?An expert is someone who through their knowledge, skill, experience, training or eduction, has a specialized knowledge that will assist the trier of fact. They must be established in their field.
  94. 94What are the three types of experts?1. Consulting experts
    2. Non-testifying experts
    3. Testifying experts
  95. 95How does prejudice work for dismissal?A dismissal is usually without prejudice. The suit can be brought again as long as it meets the statute of limitations.
  96. 96What are the two types of Dismissal?Voluntary and Involuntary.
  97. 97What are the for types of involuntary dismissal?1. Default Judgment
    2. Motion to Dismiss
    3. Motion for Judgment on the Pleadings
  98. 98What is summary judgment?Rule 56: The moving party must show that
    1. no genuine dispute of material fact
    2. Entitled to judgment as a matter of law
    (this is different than a 12b motion to dismiss because it looks at the facts.)
  99. 99What is the Opportunity Principle in preclusion?You cannot bar one who has not had the opportunity to litigate a claim.
  100. 100What is Res Judicata?Res judicata is claim preclusion.
  101. 101What are the for requirements for Res Judicata?1. There must be a final judgment
    2. The judgment must be on the merits
    3. The claims must be the same in the first and second suits
    4. The parties in the second action must be the same as those in the first or representatives of
  102. 102What are the three different tests for determining "same claim" in res judicata?1. Transaction or Occurrence Test (majority)
    2. Same Evidence Test
    3. Primary Right
  103. 103Is there an exception for non-parties in preclusion claims?Yes. There are six.
  104. 104What is another name for issue preclusion?Collateral estoppel.
  105. 105What are the three requirements for issue preclusion (disregarding the party requirements)?1. Case 1 ended in a valid final judgment on the merit.
    2. The same issue was actually litigated and decided in case 1.
    3. That issue must be essential to the judgment in case 1.

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Civ Pro overview. Flashcards and such.
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Abbi Van Hook
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