Civil Procedure Flashcards

MULTISTATE FLASH CARDS
CIVIL PROCEDURE
Reed Law Group, Ltd/aka Reed Bar Review
360 W. Illinois Street, Suite 509
Chicago, Illinois 60654
1.800.852.3926
www.ReedBarReview.com
Reed Law Group, Ltd
Copyright by Reed Law Group, Ltd/a.k.a.
Reed Bar Review. All rights reserved. No part of this
publication may be reproduced or transmitted in any
form or by any means, electronic or mechanical,
including photocopy, recording, or any information
storage and retrieval system, without permission in
writing from the publisher.
Printed in the United States of America.
Reed Law Group, Ltd
CIVIL PROCEDURE 1
Basis for personal jurisdiction
Reed Law Group, Ltd
CIVIL PROCEDURE 1
1. Statutory basis: 1) General Personal Jurisdictions: 1) Present when

served, 2) Consent, or 3) Domiciled. Specific personal jurisdiction is long-
arm statute. Most states have a long-arm statute authorizing jurisdiction
for anyone who committed a COA in state. Example - jurisdiction over one
who commits a tort in State X. If out-of-state mfg, argue tort out of state
but injury in state or transaction of business - one isolated act may be
enough.
2. Constitutional basis (due process): Minimum contacts: Purposeful
availment, reasonable anticipation, continuous activity. Fairness; notice.
Reed Law Group, Ltd
CIVIL PROCEDURE 2
Factors in determining minimum

contacts
Reed Law Group, Ltd
CIVIL PROCEDURE 2
Contact: *Purposeful availment* (debatable if TP sent product into forum;

but yes if D makes $ in forum or put in stream of commerce);
*foreseeability* of suit in forum (satisfied if product foreseeably ends up in
forum).
Fairness: Fair play and substantial justice. Analyze *relatedness* between
contact and claim. Claim needs to arise from D’s contact with forum. Not
needed if D has substantial ties (domiciled, present when served, substantial
business) - satisfies general jurisdiction. Burden, interest of state, location
of evidence and witnesses.
Convenience: Doesn’t put D at severe disadvantage in litigation (tough).
State’s interest: Provide forum for its citizens.
Reed Law Group, Ltd
CIVIL PROCEDURE 3
In rem / Quasi in rem jurisdiction
Reed Law Group, Ltd
CIVIL PROCEDURE 3
In rem: Basis for jurisdiction is property (COA relates to property). Court

has power to adjudicate rights of all persons in the world.
Quasi in rem: Something incidental to property (rights of people with
respect to property). Must satisfy minimum contacts test. Doesn’t bind D
personally.
Reed Law Group, Ltd
CIVIL PROCEDURE 4
Forum non conveniens
Reed Law Group, Ltd
CIVIL PROCEDURE 4
Court may dismiss case if other forum, with personal jurisdiction, is far
more convenient and appropriate. Transfer not possible b/c it’s in a
different judicial system. Decision based on public factors and private
factors (location of witness, evidence). Not granted if P is resident of present
forum.
Reed Law Group, Ltd
CIVIL PROCEDURE 5
Subject matter jurisdiction
Reed Law Group, Ltd
CIVIL PROCEDURE 5
Determines state vs. federal court. Must be met for every single claim.
Check for any and all available bases:
* Diversity of citizenship: Amount in controversy >$75k exclusive of
interest and costs, between citizens of different states or countries at time of
filing. Excludes family law cases and probate cases.
* Federal questions: Claim based on federal law - “arising under”.
* Supplemental jurisdiction: Allows federal court to hear related claims w/o
diversity or FQ.
Reed Law Group, Ltd
CIVIL PROCEDURE 6
Diversity of citizenship
Reed Law Group, Ltd
CIVIL PROCEDURE 6
Complete diversity required when suit commenced. No P can be same

citizen as any D.
Citizenship=domicile+intent to make fixed home.
For decedents, minors and incompetents represented by fiduciary, use
citizenship of the plaintiff, not the fiduciary. For class action, use citizenship of
representative, not class.
All states where incorporated, and location of PPB (HQ or muscle center).
For partnership/unincorporated associations, citizenship in states of all
members.
Reed Law Group, Ltd
CIVIL PROCEDURE 7
Amount in controversy
Reed Law Group, Ltd
CIVIL PROCEDURE 7
Only applies for diversity of citizenship.

* Amount can be aggregated if one P vs one D. Use total value for joint
tortfeasors, or P vs. jointly liable D’s.
* Not costs and interest
* Must be more than - not exactly 75k
* Amount in good faith at start of trial. If final judgment <75k, P may have to
pay costs.
* Injunction: Value of harm must be >75k from P’s view. Minority uses D’s
view - cost D >75k to comply with injunction.
Reed Law Group, Ltd
CIVIL PROCEDURE 8
Federal question
Reed Law Group, Ltd
CIVIL PROCEDURE 8
P must be suing to vindicate federal right.

Well-pleaded complaint rule: The federal statute asserted must give the
rights being complained of, and must be plead in complaint.
Reed Law Group, Ltd
CIVIL PROCEDURE 9
Supplemental jurisdiction
Reed Law Group, Ltd
CIVIL PROCEDURE 9
* Allows fed court to hear claims w/o subject matter jurisdiction

* Pendent: Claims joined by Plaintiff against same or different D; common
nucleus of operative fact (same transaction or occurrence); court has
discretion not to hear claim.
* Ancillary: Claims joined by Anyone other than the plaintiff; arises from
same transaction or occurrence as underlying case; court has discretion.
Reed Law Group, Ltd
CIVIL PROCEDURE 10
Removal
Reed Law Group, Ltd
CIVIL PROCEDURE 10
* Allows D (not P) to have state court case removed to federal court in that jurisdiction, if the case
could have originally been filed in that federal court. If improperly removed, fed court remands to
state.
* Removal must occur w/in 30 days after service of process.
* Case must meet SMJ.
* All D’s must agree.
* P’s cannot remove, even if they are a D by virtue of counterclaim.
* For diversity cases, can’t remove if any D is a citizen of the forum. Can drop a D to evade this
rule.
* Filing permissive counterclaim waives right to remove; compulsive counterclaim doesn’t.
* Notice to remove must be filed w/in 30 days after initial pleading; if case later becomes
removable, w/in 30 days after it becomes so, but no more than 1 yr after initially filed.
Reed Law Group, Ltd
CIVIL PROCEDURE 11
What law applies in diversity

cases.
Reed Law Group, Ltd
CIVIL PROCEDURE 11
Erie doctrine: In diversity cases, fed court applies state substantive law and
federal procedural law.
* Substantive: Elements of COA, choice of law rules, statute of limitations,
tolling of SOL. If state law would substantively determine the outcome of
the litigation, but not encourage forum shopping, interests of justice, etc.
* Procedural: FRCP or federal common law on point.
Reed Law Group, Ltd
CIVIL PROCEDURE 12
Venue
Reed Law Group, Ltd
CIVIL PROCEDURE 12
Determines which location within the judicial system is proper. Improper venue may be
waived.
* Case removed from state to fed: Fed district embracing state court.
* In any case, P can lay venue in any district where:
- ALL D’s reside, or any district if all D’s in same state but different districts; or
- Where substantial part of claim arose
If no district meets that rule, then:
- FQ: Any district where any D is found
- Diversity: Any district where any D is subject to PJ
* Residence: Where any individual resides; where corporation is subject to PJ.
* Land cases must be filed where land is located.
Reed Law Group, Ltd
CIVIL PROCEDURE 13
Transfer of venue
Reed Law Group, Ltd
CIVIL PROCEDURE 13
Only transfer to court where case could have been filed:

- If venue in original forum is proper, transfer allowed based on
convenience of parties, convenience of witnesses, interests of justice. New
court applies choice of law rules of original court.
- If venue in original forum is improper, transfer in interests of justice or
dismiss. New court applies law of new court’s state
Reed Law Group, Ltd
CIVIL PROCEDURE 14
Service of process
Reed Law Group, Ltd
CIVIL PROCEDURE 14
Process: Summons + copy of complaint, served by a nonparty.
Methods: Fed ct can use its own methods or state methods:
* Personal: Papers given to D personally, while D in forum state, but not if presence solely as
party or witness in another civil case. Also applies if D has a registered agent.
* Substituted: Process can be left at D’s usual abode, left with someone of suitable age and
discretion who resides there.
* Waiver by mail: Process mailed to D, and D returns waiver form in 30 days. If no waiver, D
liable for personal/substituted service costs.
Must file before SOL runs; and service process w/in 120 days of filing complaint unless good
cause for delay.
Process can be served to D in another state only if state statute allows (long-arm statute), or if it
meets the bulge rule or statutory Interpleader.
Reed Law Group, Ltd
CIVIL PROCEDURE 15
Pleadings
Reed Law Group, Ltd
CIVIL PROCEDURE 15
Federal rules uses "notice" pleading - no great detail needed, just enough to
allow meaningful response.
Two recent Supreme Court cases have heightened the pleading requirement of federal cases,
requiring that the allegations in the complaint state a "plausible"—not simply possible—case for recovery.
a. Bell Atlantic Corp. v. Twombly
In an antitrust case, the plaintiff alleged that the defendants had made an agreement
in restraint of trade. The Supreme Court said that the complaint should be dismissed
because it did not provide facts sufficient to prove that the allegations were plausible,
basically stating that the trial court should inquire into whether a complaint was sufficiently
convincing to allow the suit to continue. Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007).
b. Ashcroft v. Iqbal
In a constitutional tort action, the Supreme Court again ruled that the complaint should be
dismissed because the plaintiff did not state a claim for relief that was plausible on its face.
The Supreme Court further held that the decision in Bell Atlantic Corp. was not to be
limited to antitrust cases. The case expanded the authority of district judges to dismiss
cases that they believe are without merit.
Reed Law Group, Ltd
CIVIL PROCEDURE 16
Rule 11
Reed Law Group, Ltd
CIVIL PROCEDURE 16
Attorney or pro se litigant to sign all pleadings, written motions and papers,
certifying that to the best of his knowledge and belief, after reasonable
inquiry:
1. Paper is not for an improper purpose;
2. Legal contentions are warranted by law, or a nonfrivolous argument for
change of the law;
3. Factual contentions have evidentiary support, or likely to after further
investigation; and
4. Denials of factual contentions have evidentiary support, or likely to after
further investigation.
Motion for violation served but not filed; violator has 21 days to withdraw
offending document or else motion will be filed. Court can OSC why
sanctions should not be levied (discretionary).
Reed Law Group, Ltd
CIVIL PROCEDURE 17
Complaint
Reed Law Group, Ltd
CIVIL PROCEDURE 17
Principal pleading by P, commences suit. Must include:

1. Statement of SMJ
2. Short and plain statement of the claim showing entitled to relief; but
fraud, mistake and special damages require particular and specific
pleadings (notice not enough).
3. Demand for judgment
Reed Law Group, Ltd
CIVIL PROCEDURE 18
Response
Reed Law Group, Ltd
CIVIL PROCEDURE 18
D must respond with motion or answer within 21 days after service of

process.
* Request for more specific statement
* Motion to strike immaterial allegations
* Motion to dismiss for lack of SMJ, failure to join indispensable party. PJ,
venue, insufficient process are waivable defenses, and must be put in first
response.
* Failure to state a claim on which relief can be granted; summary
judgment.
Reed Law Group, Ltd
CIVIL PROCEDURE 19
Answer
Reed Law Group, Ltd
CIVIL PROCEDURE 19
If motion is denied, answer required 10 days after denial. If D waives

service, answer within 60 days after waiver. Otherwise, w/in 21 days after
service of process.
* Admission
* Denial: Failure to deny is admission
* State lack sufficient information to admit/deny: Effect of denial, but not if
matter is known by D or public knowledge
* Raise affirmative defenses: If not pleaded in answer, waived at trial.
Reed Law Group, Ltd
CIVIL PROCEDURE 20
Counterclaim
Reed Law Group, Ltd
CIVIL PROCEDURE 20
Filed with D’s responsive pleading (answer).

* Compulsory: Arises from same transaction or occurrence as P’s claim.
Must be filed in pending case, else D waives right to sue on claim.
* Permissive: Doesn’t arise from same transaction or occurrence. Not
waived by failing to raise.
Counterclaim must have SMJ: Diversity, FQ, or supplemental (ancillary
available for compulsory counterclaims).
Reed Law Group, Ltd
CIVIL PROCEDURE 21
Cross-claim
Reed Law Group, Ltd
CIVIL PROCEDURE 21
Claim against a co-party. Must arise from same transaction or occurrence as

underlying action, but it’s not compulsory.
Ancillary supplemental jurisdiction is available.
Reed Law Group, Ltd
CIVIL PROCEDURE 22
Amending pleadings
Reed Law Group, Ltd
CIVIL PROCEDURE 22
* P has a right to amend once before D serves answer, or if no answer served, w/in 21 days after
serving pleading.
* D has right to amend once within 21 days after serving answer.
If no right to amend (above), seek leave of court to amend, and it will be granted, unless causes
delay or prejudice.
If at trial, other party fails to object to evidence (waiver), party can move to amend pleading to
conform to evidence.
Amended pleadings relate back to date of original pleading (SOL purposes) if concern same
conduct, transaction or occurrence as original pleading. Treated as if filed when original was
filed. If amendment changes D, relates back if concerns same conduct, transaction or
occurrence as original; new party knew of action within 120 days after filing; and new party
knew that but for a mistake, it would have been originally named. (P sued wrong D but right D
knew about it when filed).
Reed Law Group, Ltd
CIVIL PROCEDURE 23
Joinder of claims
Reed Law Group, Ltd
CIVIL PROCEDURE 23
Once a party asserts a claim by complaint, cross-claim, counterclaim or

impleader, the party may then join any claims, even transactionally
unrelated, that he has against an opposing party, subject to SMJ
requirements.
Note that D must counterclaim on events arising out of same transaction or
occurrence.
Reed Law Group, Ltd
CIVIL PROCEDURE 24
Joinder of parties: Permissive
Reed Law Group, Ltd
CIVIL PROCEDURE 24
Who may be joined:

* P’s with claims arising from same transaction or occurrence can sue, and
raise at least one common question, may sue as co-P’s.
* D’s may be named as co-D’s if the claims arise from same transaction or
occurrence and raise at least one common question.
If joinder isn’t feasible (no PJ or joinder would destroy diversity), court
must proceed without him, or dismiss the whole case (TP is indispensable).
Factors: Alternative forum available; likelihood of actual prejudice; court’s
ability to shape relief to avoid prejudice.
All parties must have SMJ.
Reed Law Group, Ltd
CIVIL PROCEDURE 25
Joinder of parties: Mandatory
Reed Law Group, Ltd
CIVIL PROCEDURE 25
Who must be joined: Necessary and indispensable parties. Court may order. Joint
tortfeasors are not necessary parties.
* Without absentee, court cannot accord complete relief among parties (worried
about multiple suits);
* Absentee’s interest may be harmed if no joinder; or
* Absentee claims an interest which subjects D to multiple judgments
If joinder isn’t feasible (no PJ or joinder would destroy diversity), court must
proceed without him, or dismiss the whole case (TP is indispensable). Factors:
Alternative forum available; likelihood of actual prejudice; court’s ability to shape
relief to avoid prejudice. All parties must have SMJ.
Reed Law Group, Ltd
CIVIL PROCEDURE 26
Impleader
Reed Law Group, Ltd
CIVIL PROCEDURE 26
Joinder of a new third party, usually by D, in vicarious liability case for

indemnity or contribution. D has right to implead w/in 10 days of serving
answer, otherwise court permission needed.
Steps: File TP complaint naming TP, and serve on TP.
Once joined, P and TPD can assert claims between themselves arising from
same transaction or occurrence as original claim.
All parties and claims (i.e. TPD v. P) must have SMJ. D and TPD can have
same state in diversity cases.
Reed Law Group, Ltd
CIVIL PROCEDURE 27
Bulge rule
Reed Law Group, Ltd
CIVIL PROCEDURE 27
Absentees joined as necessary party or impleaded may be served out of

state, within 100 miles of courthouse.
Reed Law Group, Ltd
CIVIL PROCEDURE 28
Intervention
Reed Law Group, Ltd
CIVIL PROCEDURE 28
Absentee wants to join pending suit, either as P or D. Must be made in a

timely manner.
* Intervention of right: TP’s interest may be harmed if not joined, and not
adequately represented now.
* Permissive: At least one common question exists; at court’s discretion.
If diversity case, and TP would mess up diversity, no supplemental
jurisdiction for permissive, and not for P by right, but maybe for D by
right.
Reed Law Group, Ltd
CIVIL PROCEDURE 29
Interpleader
Reed Law Group, Ltd
CIVIL PROCEDURE 29
Stakeholder holding the property or money in dispute forces all potential

claimants into single lawsuit to avoid multiple litigation and inconsistency.
Rule interpleader: Diversity case. Stakeholder must be diverse from all
claimants.
Statutory interpleader: Only one claimant must be diverse from other
claimant (minimal diversity). Only $500 required for amount in
controversy. Venue is in any district where any claimant resides.
Nationwide service of process is available (no PJ problem).
Reed Law Group, Ltd
CIVIL PROCEDURE 30
Requirements for Class action

(CAN’T)
Reed Law Group, Ltd
CIVIL PROCEDURE 30
* Common questions of law or fact

* Adequateness (Representatives and lawyer will fairly and adequately represent
class)
* Numerosity (number of parties are too numerous for practicable joinder)
* Typicality
* SMJ: For diversity, only citizenship of class representative matters. Amount in
controversy is traditionally each member must claim >75k; trend is if
representative’s claim >75k.
* Settlement or dismissal must be approved by court.
2005 - Class Action Fairness Act. 1) Only one plaintiff must be diverse; 2) over 100
members; 3) Amount in aggregate must be over $5M
Reed Law Group, Ltd
CIVIL PROCEDURE 31
Types of class action
Reed Law Group, Ltd
CIVIL PROCEDURE 31
Damages: Common questions predominate, and class action superior

method to handle dispute (efficiency). Examples: Mass tort. Class rep pays to
give individual notice to all reasonably identifiable members telling
them: (1) they can opt out; (2) they will be bound if they do not opt out; (3)
they can enter separate appearance through counsel.
Prejudice: Class treatment necessary to avoid harm to class members or
party opposing class. No right to opt out.
Injunction or declaratory judgment sought b/c class treated alike by other
party (i.e. employment discrimination case). No right to opt out.
Reed Law Group, Ltd
CIVIL PROCEDURE 32
Discovery: Required disclosures
Reed Law Group, Ltd
CIVIL PROCEDURE 32
Must be produced even though no one asked for it, within 14 days after
discovery meeting.
1. Initial: Identifies persons and documents with info relevant to disputed
facts alleged w/particularity in the pleadings, computation of damages, and
insurance.
2. Experts: Names and reports.
3. Pretrial: At least 30 days before trial, produce detailed info about trial
evidence, including names of witnesses and documents.
Reed Law Group, Ltd
CIVIL PROCEDURE 33
Depositions
Reed Law Group, Ltd
CIVIL PROCEDURE 33
Oral/written.
Can be used against party or nonparty. Nonparty must be subpoenaed;
nonparty doesn’t have to be subpoenaed - notice enough to compel.
Subpoena duces tecum requires deponent to bring papers or materials.
Limit of 10 depos total, only depose a person once, unless court otherwise
authorizes.
Reed Law Group, Ltd
CIVIL PROCEDURE 34
Interrogatories
Reed Law Group, Ltd
CIVIL PROCEDURE 34
Questions in writing by party to another party. Must be answered w/in 30

days. No more than 25 interrogs.
Reed Law Group, Ltd
CIVIL PROCEDURE 35
Request to produce
Reed Law Group, Ltd
CIVIL PROCEDURE 35
Requests party (or non party with subpoena) to make documents available for
review of documents or things.
Reed Law Group, Ltd
CIVIL PROCEDURE 36
Physical or mental examination
Reed Law Group, Ltd
CIVIL PROCEDURE 36
Only available with court order upon showing that party’s health is in
actual controversy and good cause exists.
Reed Law Group, Ltd
CIVIL PROCEDURE 37
Request for admission
Reed Law Group, Ltd
CIVIL PROCEDURE 37
Must respond w/in 30 days. Used to authenticate documents.
Reed Law Group, Ltd
CIVIL PROCEDURE 38
Discovery tools
Reed Law Group, Ltd
CIVIL PROCEDURE 38
Deposition
Interrogatory
Request to produce
Physical or mental exam
Request for admission
Reed Law Group, Ltd
CIVIL PROCEDURE 39
Duty to supplement
Reed Law Group, Ltd
CIVIL PROCEDURE 39
If party learns that its response to required disclosure is incomplete or

incorrect, it must supplement.
Reed Law Group, Ltd
CIVIL PROCEDURE 40
Substantive scope of discovery
Reed Law Group, Ltd
CIVIL PROCEDURE 40
Can discover anything relevant: Reasonably calculated to lead to

admissible evidence.
Privileged matter not discoverable.
Work product: Assumption of non-discoverability. Evidence admissible
upon showing of substantial need and not otherwise available; but mental
impressions, theories, opinions and conclusions are absolutely protected.
Work product can be generated by lawyer or employee of lawyer.
Reed Law Group, Ltd
CIVIL PROCEDURE 41
Expert witness
Reed Law Group, Ltd
CIVIL PROCEDURE 41
Required disclosures of name, report.

Other party can take depo if expert is to testify at trial. If not going to
testify, no depo unless exceptional need.
Reed Law Group, Ltd
CIVIL PROCEDURE 42
Enforcement of discovery rules
Reed Law Group, Ltd
CIVIL PROCEDURE 42
Motion to compel discovery. If party doesn’t comply with order, court may:
Award costs/fees; order matters treated as admitted; prohibit party from sing
claims/defenses; strike pleadings; dismiss action; render default
judgment; contempt.
Deposed party can request protective order against overburdensome
requests or for trade secrets.
Reed Law Group, Ltd
CIVIL PROCEDURE 43
Voluntary dismissal
Reed Law Group, Ltd
CIVIL PROCEDURE 43
P can dismiss before D serves answer or moves for summary judgment.

Dismissal without prejudice. If D already served answer, D has to agree to
dismissal or court must order
Second dismissal is with prejudice, even if first case was in state court.
Reed Law Group, Ltd
CIVIL PROCEDURE 44
Default judgment
Reed Law Group, Ltd
CIVIL PROCEDURE 44
A default results from the defendant's failure to respond within the
timeframe set out under Rule 12. A defendant has 21 days from
service of process to respond to a complaint either by an answer or by
a pre-answer motion, or to seek additional time to answer.
Entry of default first by court clerk, then entry of default judgment by
clerk.
If default has been entered, D can move to set aside default by showing
good cause and viable defense.
Reed Law Group, Ltd
CIVIL PROCEDURE 45
Dismissal for failure to state a

claim (demurrer)
Reed Law Group, Ltd
CIVIL PROCEDURE 45
12(b)(6) motion. Tests the sufficiency of P’s allegations in complaint, without

looking at evidence. Assumes P’s complaint is true, and asks "if P proves
everything in complaint, is P entitled to judgment." Granted if no COA
exists.
"Motion for judgment on the pleadings" is the same thing, but occurs after
pleadings are closed.
Reed Law Group, Ltd
CIVIL PROCEDURE 46
Summary judgment
Reed Law Group, Ltd
CIVIL PROCEDURE 46
Moving party must show (1) no dispute as to material issue of fact, and (2)
moving party is entitled to judgment as a matter of law. Court examines (but
doesn’t weigh) evidence proffered by parties (affidavits, but not
pleadings). Motion denied if dispute of fact.
Evidence viewed in light most favorable to non-moving party.
Reed Law Group, Ltd
CIVIL PROCEDURE 47
Pretrial conferences
Reed Law Group, Ltd
CIVIL PROCEDURE 47
Court may hold as needed to expedite case and encourage settlement.

The final pretrial order (final blueprint for trial) supercedes the pleadings,
but may be amended to prevent manifest evidence, or evidence admitted that
wasn’t objected to.
Reed Law Group, Ltd
CIVIL PROCEDURE 48
Jury trial
Reed Law Group, Ltd
CIVIL PROCEDURE 48
Must demand in writing no later than 14 days after service of last pleading.
Right to jury trial at law for COA’s that existed back in the 1790’s, but not
for equity. If case involves both, jury for law issues but not equity; jury trial
goes first.
Selection: Unlimited strikes for cause; 3 peremptory strikes per side, but
must be race and gender neutral.
Reed Law Group, Ltd
CIVIL PROCEDURE 49
Judgment as a matter of law

(directed verdict)
Reed Law Group, Ltd
CIVIL PROCEDURE 49
Takes case away for jury. Standard is if reasonable people could not
disagree on the results. Evidence viewed in light most favorable to
nonmoving party.
Brought after other side has been heard. D can move twice: at close of P’s
evidence and close of all evidence. P can move only at end of all evidence.
Reed Law Group, Ltd
CIVIL PROCEDURE 50
Judgment Notwithstanding the

Verdict
Reed Law Group, Ltd
CIVIL PROCEDURE 50
Jury returns verdict, and court enters judgment. Losing party files renewed
motion for judgment as a matter of law, within 28 days after entry of
judgment.
Standard: Reasonable people could not disagree on the results. Evidence
viewed in light most favorable to nonmoving party.
Prerequisite: Motion for judgment as a matter of law at close of all evidence
(end of the trial) is a prerequisite.
Reed Law Group, Ltd
CIVIL PROCEDURE 51
Motion for new trial
Reed Law Group, Ltd
CIVIL PROCEDURE 51
Judgment entered, but errors at trial require new trial. Move 28 days after
entry of judgment.
Grounds: Error at trial makes judgment unfair; new evidence that could
not have been obtained with due diligence at original trial; prejudicial
misconduct of party, atty, TP or juror; judgment against weight of
evidence; inadequate or excessive verdict.
Reed Law Group, Ltd
CIVIL PROCEDURE 52
Summary judgment
Reed Law Group, Ltd
CIVIL PROCEDURE 52
No genuine issue of material fact moving party entitled to judgment as a

matter of law. May be supported by pleadings, affidavits, discovery
materials.
TIME TO FILE A MOTION. Unless a different time is set by local rule or the
court orders otherwise, a party may file a motion for summary judgment at
any time until 30 days after the close of all discovery.
Reed Law Group, Ltd
CIVIL PROCEDURE 53
Final judgment rule
Reed Law Group, Ltd
CIVIL PROCEDURE 53
Generally, party can appeal only from final judgment. If the trial court has
anything left to do on the merits, no appeal available.
Not final: Denial of motion for summary judgment, grant for motion of new
trial. But granting or denying a renewed motion for judgment as a matter of
law (JNOV) is a final judgment.
Reed Law Group, Ltd
CIVIL PROCEDURE 54
Interlocutory review
Reed Law Group, Ltd
CIVIL PROCEDURE 54
Allows court of appeals to review matter before final judgment.

Allowed for: Injunctions, receivers, attachments to property, review of order
granting/denying class action, and any nonfinal order of trial judge if he certifies
that it involves a controlling issue of law as to which there is substantial grounds for
difference of opinion and court of appeals agrees to hear it.
Court of appeals may hear a collateral order rule (distinct from merits of case) if
important legal question which would be unreviewable at end of case.
Extraordinary writ: Asking appeals court to order trial judge to do make or vacate a
certain order. Available only to enforce clear legal duty.
Reed Law Group, Ltd
CIVIL PROCEDURE 55
Res Judicata
Reed Law Group, Ltd
CIVIL PROCEDURE 55
Affirmative defense: You can only sue on a cause of action once.

Requirements:
1. Both cases by same P against same D.
2. Case 1 ended in valid final judgment on the merits (includes default
judgments).
3. Both cases involve the same claim (transaction or occurrence; but
minority has separate claims for property damage and personal injury
from same transaction).
Merger: Claimant won prior case. Bar: Claimant lost prior case.
Reed Law Group, Ltd
CIVIL PROCEDURE 56
Collateral estoppel
Reed Law Group, Ltd
CIVIL PROCEDURE 56
Precludes relitigation of particular issue previously litigated and determined. Narrower than res judicata.
Requirements:
1. Case 1 ended in valid final judgment on the merits.
2. Same issue was actually litigated and determined in first case.
3. Issue was essential to the judgment in case 1.
4. Can only be asserted against a party to prior suit, or a representative.
5. Can only be asserted by a party to prior suit, or a representative (mutual). Minority allows any person to
assert (nonmutual).
Nonmutual defensive CE: Person using it is the D, and wasn’t a party to prior case. Allowed if P had full
oppt’y to litigate issue in first case.
Nonmutual offensive CE: Person using it is the P, and wasn’t a party to prior case, to show that an element of
the claim has already been proven. Factors: D had full oppt’y to litigate first case, could foresee multiple
litigation, P could not have easily joined first case, and no inconsistent judgments on record..
Reed Law Group, Ltd
CIVIL PROCEDURE 57
Timing of Rule 12 defenses
Reed Law Group, Ltd
CIVIL PROCEDURE 57
Raised anytime:
Lack of SMJ
Failure to state a claim
Failure to join a party
Raised by first motion or answer, else waived:
Lack of PJ
Improper venue
Insufficient process/service
Reed Law Group, Ltd
CIVIL PROCEDURE 58
Remittitur and Additur

CIVIL PROCEDURE 58
If the court determines that a verdict was excessive, the court may offer a
reduction of the verdict, known as a remittitur, and grant a new trial on
the condition that the remittitur is not accepted. See Hetzel v. Prince
William Cnty., 523 U.S. 208 (1998). If the court determines that the
verdict was inadequate, the court only has the option of ordering a new
trial. An additur (enhanced judgment) is not permitted in federal court.
Timing: Pursuant to Rule 59 (b) a motion for a new trial must be filed no
later than 28 days after the entry of judgment. When the motion is based
on affidavits, those affidavits must be filed with the motion. The
opposing party then has 14 days after being served to file opposing
affidavits. The court may permit reply affidavits. Rule 59(c).
Order by the Court on Its Own Initiative: Pursuant to Rule 59(d), no

later than 28 days after the entry of judgment, the court, on its own, may
order a new trial for any reason that would justify granting one on the
motion of a party. The court must specify the reasons in its order.
Reed Law Group, Ltd

Civil Procedure Flashcards

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Civil Procedure Flashcards

Uploaded by

Copyright:

Available Formats

MULTISTATE FLASH CARDS

Printed in the United States of America.

Basis for personal jurisdiction

1. Statutory basis: 1) General Personal Jurisdictions: 1) Present when

Factors in determining minimum

Contact: *Purposeful availment* (debatable if TP sent product into forum;

In rem / Quasi in rem jurisdiction

In rem: Basis for jurisdiction is property (COA relates to property). Court

Forum non conveniens

Subject matter jurisdiction

Complete diversity required when suit commenced. No P can be same

Only applies for diversity of citizenship.

P must be suing to vindicate federal right.

* Allows fed court to hear claims w/o subject matter jurisdiction

* Removal must occur w/in 30 days after service of process.

* Case must meet SMJ.

* All D’s must agree.

* P’s cannot remove, even if they are a D by virtue of counterclaim.

* Filing permissive counterclaim waives right to remove; compulsive counterclaim doesn’t.

What law applies in diversity

* In any case, P can lay venue in any district where:

- Where substantial part of claim arose

If no district meets that rule, then:

- FQ: Any district where any D is found

- Diversity: Any district where any D is subject to PJ

* Residence: Where any individual resides; where corporation is subject to PJ.

* Land cases must be filed where land is located.

Only transfer to court where case could have been filed:

Process: Summons + copy of complaint, served by a nonparty.

Methods: Fed ct can use its own methods or state methods:

Principal pleading by P, commences suit. Must include:

D must respond with motion or answer within 21 days after service of

If motion is denied, answer required 10 days after denial. If D waives

Filed with D’s responsive pleading (answer).

Claim against a co-party. Must arise from same transaction or occurrence as

* D has right to amend once within 21 days after serving answer.

Once a party asserts a claim by complaint, cross-claim, counterclaim or

Joinder of parties: Permissive

Who may be joined:

Joinder of parties: Mandatory

Joinder of a new third party, usually by D, in vicarious liability case for

Absentees joined as necessary party or impleaded may be served out of

Absentee wants to join pending suit, either as P or D. Must be made in a

Stakeholder holding the property or money in dispute forces all potential

Requirements for Class action

* Common questions of law or fact

Types of class action

Damages: Common questions predominate, and class action superior

Discovery: Required disclosures

Questions in writing by party to another party. Must be answered w/in 30

Physical or mental examination

Request for admission

Must respond w/in 30 days. Used to authenticate documents.

If party learns that its response to required disclosure is incomplete or

Substantive scope of discovery

Can discover anything relevant: Reasonably calculated to lead to

Required disclosures of name, report.

Enforcement of discovery rules

P can dismiss before D serves answer or moves for summary judgment.

Dismissal for failure to state a

12(b)(6) motion. Tests the sufficiency of P’s allegations in complaint, without

Court may hold as needed to expedite case and encourage settlement.

Judgment as a matter of law

Judgment Notwithstanding the

Contact: Purposeful availment (debatable if TP sent product into forum;