Civil Procedure fill in the blank


Flashcards on Civil Procedure fill in the blank, created by Roxie McCormick on 03/12/2014.
Roxie McCormick
Flashcards by Roxie McCormick, updated more than 1 year ago
Roxie McCormick
Created by Roxie McCormick over 9 years ago

Resource summary

Question Answer
Personal jurisdiction requires that D be _______ to the forum state's jurisdiction, and that D be ________________. amenable, served with proper notice
Amenability to personal jurisdiction is governed by the __________, subject to the limits of the _____________ of the United States Constitution. forum state's law, due process clause
Pennoyer v. Neff described three bases for state jurisdiction over persons and things. They are: 1. In personam: jurisdiction over the person 2. In rem: jurisdiction over interests in property 3. Quasi in rem: jurisdiction over seized property, where P's claim is unrelated to the seized property
Pennoyer based its jurisdictional formula on __________ over persons and property within its borders. state power
Under Pennoyer's in personam jurisdiction, a judgment in P's favor: - would be binding in all states -for the full amount of damages -may be enforced repeatedly until fully collected
Under Pennoyer's in rem jurisdiction, a judgment in favor of P -affects everyone's interests in a res (both parties and nonparties to the lawsuit) -does not result in money judgment -does not require enforcement outside the forum
Under Pennoyer's quasi in rem jurisdiction, a judgment in P's favor: -entitles P to the property attached for jurisdiction -is not a personal judgment -in not enforceable against any other property -may not be enforced more than once -may not be enforced outside the forum
Another type of jurisdiction not discussed in Pennoyer is ________, which involves the state's authority to adjudicate such matters as divorce, adoption, citizenship and mental competence. status
Internation Shoe Co. v. Washington altered Pennoyer's rule for personal jurisdiction, replacing the concept of __________ with the new standards of _______ and _________ provided by the "minimum contacts test." state power, reasonableness, fairness
The current test for amenability, following International Shoe and other cases, does not require the minimum contacts test if D satisfies one of the 4 traditional bases for in personam jurisdiction. Those are: 1. Residence in the forum state 2. Consent to jurisdiction 3. Waiver of objection to jurisdiction 4. Physical presence in the forum when served
Consent to jurisdiction has two form, _______ consent and ________ consent. ___________ are an example of express consent, and __________ are an example of implied consent. express, implied, Forum selection clauses, non-resident motorists statutes
If none of the traditional bases are present, a state may only exercise in personam jurisdiction over D's who have minimum contacts with the state. The 2 categories of minimum contacts are _______ and ________. specific jurisdiction and general jurisdiction
__________ has four contacts test, which are that the D Specific jurisdiction: 1. purposefully availed itself of the benefits and protections of forum law; 2. should have foreseen that its activity would subject it to jurisdiction in the forum state; 3. could reasonably anticipate being haled into court in the forum state; 4. placed its product in the stream of commerce and could foresee that it would be used in the forum state.
General jurisdiction has one contact test, which is that it has _____________ with the forum state. continuous and systematic contacts
If D has no contacts with the forum, and doesn't meet one of the 4 traditional bases of jurisdiction, then there is ___________ over that D. If, on the other hand, D does not have specific or general contacts, then the court must consider the ____________. This is a ________ with five factors, which are: no personal jurisdiction, fair play and substantial justice test, balancing 1. burden on D 2. P's interest in convenient and effective relief 3. the forum state's interest 4. the shared interests of several states in furthering fundamental social policies 5. the judicial system's interest in effective resolution of controversies
The due process requirement for notice to D 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 ________. reasonably calculated, interested, opportunity to appear, present objections
An abbreviated version of the Mullane notice rule is that _______ requires ______ and an ___________. due process, notice, opportunity to be heard
Which rule of the Federal Rules of Civil Procedure deals with initially notifying the D of the lawsuit? Rule 4
Under Fed. R. Civ. P. 4, the two primary methods for service of process on a competent adult are: 1. personal delivery to D 2. leaving copies at D's residence with a person of suitable age and discretion.
In most cases, the federal method of service on D's outside the district is by the _________ statute of the state in which the federal court sits. long arm
The purposes of venue rules are: 1. fairness to D 2. Geographic allocation of caseload within the forum state
The federal statute for general venue provisions is: 28 U.S.C. 1391
The purpose of forum non conveniens is to move ________ based on fairness and convenience. cases from one forum to another
Subject matter jurisdiction refers to the court's authority to adjudicate based on the _________ and in some cases, __________. type of case, the dollar amount in controversy
Federal courts have subject matter jurisdiction over two types of cases: 1. federal question 2. diversity of citizenship
The statute dealing with general federal question jurisdiction is _______. It provides that federal courts have jurisdiction over any ____________ of the United States. 28 U.S.C. 1331, case or controversy arising under the Constitution, laws, or treaties
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: 1. foreign states 2. admiralty 3. patents 4. civil rights 5. consuls 6. internal revenue 7. United States as P or D
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 _______. 28 U.S.C. 1332, citizens of different states, state citizens, foreign citizens, exceeds $75,000
Although the Constitution requires only _____ diversity, 28 U.S.C. 1332 requires ______ diversity. This means that all P's must have different citizenship than all the D's. partial, complete
For diversity purposes, a corporation has 2 citizenships, which are: 1. state of incorporation 2. principal place of business
For diversity purposes, partnerships have the citizenship of ________. all the partners
The amount in controversy is determined by P's __________. good faith pleading
In achieving the amount in controversy, may P aggregate: 1. all of P's claims against one D? 2. alternate theories of recovery for the same wrong? 3. claims of different P's? 4. claims against different D's? 1. Yes 2. No 3. No 4. No
In some cases, a related claim that lacks diversity or federal question jurisdiction may be included. This is called ________. supplemental jurisdiction
Federal courts traditionally abstain from _______, ________, and ___________. family law, probate, state criminal proceedings
If P has filed his action in state court, and jurisdiction is proper in federal court, D may remove the case to federal court. This is done by file a ________ in federal court, attaching a copy of _______ and __________ to the state court and all parties. Notice of Removal, all state court pleadings, giving notice
If there is a _______ defect in the removal, the case must be remanded to state court no matter when the objection is made. jurisdictional
If there is a _______ defect in the removal, the case must be remanded to state court if a ____________. procedural, proper and timely objection is filed.
State court subject matter jurisdiction is governed by _______. state law
In state courts, subject matter jurisdiction is designated by _______ and/or _______. type of case, dollar amount
In Texas, state district courts have _________ over all claims of ____ or more in controversy. general jurisdiction, $500
Federal courts have ______ jurisdiction over patent claims. Federal and state court share ________ jurisdiction over ________. exclusive, concurrent, federal civil rights actions
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 lower court. original, appellate
A Texas state district court has ______ jurisdiction over any dispute involving $500 or more, and ______ jurisdiction over appeals from Texas state agency decisions. original, appellate
A federal district (trial) court has _____ jurisdiction over appeals from federal administrative agency decisions. appellate
The United States Supreme Court has ______ jurisdiction over disputes between states. original
The Rules of Decision Act provides that ______, 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. laws of several states, rules of decision
__________ interpreted the Rules of Decision Act to require federal courts to apply the __________ in cases where state law applied. Swift v. Tyson, general American common law
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.
___________ 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, outcome determinative test
__________ modified the ________, holding that the court should _________ in the cases to determine which interests were stronger. ______ further held that one factor of the balancing test is whether 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, outcome determinative test, balance state and federal interests, Byrd, absolutely or definitively
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. state statutes, decisions from the state's highest court, lower state appellate courts, federal court opinions on state law, educated guess
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. Federal Rules of Civil Procedure, abridge, enlarge, or modify
The most prominent Rules Enabling case is _________, which resolves the conflict between Rules Enabling Act and the _________. Hanna v. Plumer, Erie Doctrine
__________ 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, Federal Rules of Civil Procedure, twin aims of Erie
Choice of law is the process by which courts determine which _________ law will be applied in a case. state's or nation's
Choice of law rules may be _______ or ________. statutory, common law
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. where the death occurred
One example of a common law choice of law rule is the Texas case of Duncan v. Cessna, 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 __________. most significant relationship test, statutory choice of law rule, valid choice of law clause.
In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules of _______________. the state in which the federal court sits
In federal court, P's initial pleading is called a __________. It must contain: complaint, 1. an allegation of subject matter jurisdiction 2. a short and plain statement of the claim showing that the pleader is entitled to relief 3. a demand for judgment
In federal court, D's answer must respond to each paragraph of P's complaint with one of the following: 1. admission 2. denial 3. statement that D lacks sufficient knowledge to respond
In addition to the foregoing, D may plead __________. If D fails to plead these, they are ________. They are: affirmative defenses, waived -contributory negligence -assumption of risk -fraud -statute of limitations -discharge in bankruptcy -estoppel -failure of consideration -payment -release -res judicata -statute of frauds
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 improper purpose 2. warranted by existing law or a nonfrivolous argument for extension, modification, or reversal of existing law or the establishment of a new law 3. supported by evidence, or will likely be after a reasonable opportunity for discovery. 4. Fact denials must be warranted on the evidence or based on a reasonable lack of information or belief.
If P's initial pleading is so vague or ambiguous that D cannot be reasonably be expected to respond, D may file a _______ under F.R.C.P. 12(e). This must be filed ______ the Answer. Motion for More Definite Statement, before
D may use a _______ under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter. Motion to Strike
D should always challenge P's Complaint by a __________ under F.R.C.P. 12(b)(6). This allows the court to test the ______ of P's claim. Motion to Dismiss for Failure to State a Claim, legal sufficiency
D may challenge ________ at any time. D must challenge ________ and ______ at the first opportunity or waive them. subject matter jurisdiction, personal jurisdiction, venue
Two types of counterclaim are ______ and _______. A ______ counterclaim is one related to P's claim. If it is not asserted, it is ________. compulsory, permissive, compulsory, waived
A third party claim is one brought by a D against a _______. It is based on ________ liability. _______ may also bring a third party claim in defense of a counterclaim. new party, derivative, plaintiff
Pleadings may be amended to add new ___________, and new _______ or ___________. factual allegations, claims, causes of action
If a pleading adds a new claim that is barred by the statute of limitations, that new claim will be 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)
The doctrine of relation back also allows a P to add a new D after the statute of limitations has run if the ______ in Rule 15(c) is satisfied. balancing test
If P presents evidence on an unpleaded claim during trial and D fails to object, that unpleaded claim will valid if the court grants P's ___________. Motion for Trial Amendment
One exception to the liberal federal pleading rule (short plain statement of the claim) is that allegations of ______ must plead with particularity. fraud
Until recently, most state courts used code pleading, which required P to plead _________ relating to every element of his claim. ultimate facts
Many states have abandoned code pleading, replacing it with ______ pleading requirements based on the _________. notice, Federal Rules of Civil Procedure
Texas still requires P to plead _________. However, it may not be necessary in each case to plead every ________. causes of action, element
Many state courts still permit a ______, with which D challenges the ____________ of P'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, legal sufficiency
F.R.C.P. 13(a) requires D to assert any opposing claim against P that ____________ that is the subject matter of P's claim. This is known as a __________. If D fails to assert such a claim, he is ______ from raising the same claim in later lawsuit. arises out of the transaction or occurrence, compulsory counterclaim, barred
Exceptions to requirement of asserting claims according to F.R.C.P. 13(a) are: 1. where D wins dismissal of P's claims prior to filing an answer 2. where the counterclaim has not arisen or matured where the counterclaim requires an additional party over whom the court lacks personal jurisdiction 4. where the counterclaim is the subject of another pending action 5. where P's action is not based on personal jurisdiction over D (i.e. an in rem action)
Permissive joinder allows any party to join ____________ against _________. unrelated claims, existing parties
In spite of liberal rules for permissive joinder, all crossclaims and third party claims must be _______ to P's claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an ________ claim. related, unrelated
Compulsory parties are those who must be joined if possible. FRCP 19 addresses this issue in two parts: 1. Rule 19(a) identifies required parties, who must be joined if feasible 2. Rule 19(b) addresses what must happen if when joiner is not feasible
FRCP 20 governs permissive joinder of parties. It permits ___________ to join in one lawsuit if: multiple parties, 1. each P asserts any right to relief arising out of the same transaction, occurrence, or series of transactions or occurrences, AND 2. any question of law or fact common to all these persons will arise in the same action Rule 20 also permits one or more P's to join multiple D's if they meet this test
Two other requirements for naming parties to a lawsuit are: 1. Real Party in Interest 2. Capacity
Procedural devices for adding multiple parties include: 1. Impleader, or Third Party Action 2. Interpleader 3. Intervention 4. Class Action 5. Shareholders' Derivative Suit
The scope of discovery, both in Texas and federal courts, is all matters _________ that are ______________. not privileged, reasonably calculated to lead to the discovery of admissible evidence
The forms of discover are: -interrogatories -requests to produce or inspect -subpoenas duces tecum -oral depositions -written depositions -physical and mental examinations -requests for admission
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)
The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are __________. waived
In addition to waiver, the privileges and exemptions may have exceptions that _________________. permit or require disclosure
Devices for dismissal include: 1. Voluntary Dismissal 2. 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 3. Dismissal for Failure to State a Claim
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 ______. either P or D, nonmovant's pleadings, claim, defense
FRCP 56 provides that for summary judgment, the _______ is on the ________ to show that: burden, movant 1. there is no genuine issue of material fact, and 2. movant is entitled to judgment as a matter of law
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 pleadings) 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. evidence, court record
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: 1. assuming all of nonmovant's fact allegations to be true 2. negating portions of nonmovant's essential fact allegations (Adickes) 3. pointing to the record, after a reasonable time for discovery, and alleging that nonmovant lack sufficient evidence to support an essential element of her case, upon which nonmovant has the burden of proof at trial (Celotex)
For summary judgement 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. offering evidence to establish each element
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: nonmovant, 1. creating a fact dispute 2. showing that the law does not entitle movant to judgment
In deciding the motion for summary judgment, the court must view the evidence in the __________________. light most favorable to the nonmovant
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. reasonable minds could differ
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. sufficient evidence, directed verdict
If a party lacks evidence to respond to a motion for summary judgment, that party may seek ________ under Rule 56(f). additional time
In federal court, the trial issues of law and fact are governed by a _________. In state courts that do not use a _________, the issues of fact and law are governed by the ____________. Pretrial Order, Pretrial Order, latest pleadings
The process of questioning prospective jurors is called _______. voir dire
There are two kinds of challenges to prospective jurors: 1. 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. 2. Peremptory challenges allow the parties a limited number of strikes to excuse the prospective jurors for no stated reason.
Asking the court to order all witnesses other than parties to leave the room is known as _____________. invoking the rule
A D may move for the ___________ if he has the burden of proof on all the remaining issues. right to open and close
Under the Seventh Amendment to the United States Constitution, all parties have a right to trial by jury in __________ exceeding _______ in controversy. cases at common law, twenty dollars
Parties have no constitutional right to trial by jury in ____ cases. However, the states may grant the right to trial by jury in _____ cases. equity, equity
The right to jury trial is presumed to exist under a federal statute unless that statute __________ the right. expressly excludes
If a party fails to request a jury within the time allowed by ________, the right to a jury trial is ________. forum law, waived
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. jury instructions, appealable
If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the _____________. trier of law and fact
As of Dec. 1, 1991, the FRCP were amended so that "directed verdict" and "judgment notwithstanding the verdict" are both known as ____________________. judgment as a matter of law
In a jury trial, at the close of P's evidence, D may move for a ___________ (the old directed verdict) under FRCP 50(a). The judge may grant it if, viewing the evidence in the _________________, a reasonable jury could not find for P. judgment as a matter of law, light most favorable to the plaintiff
The judge should _____ the motion for directed verdict if: deny, 1. a reasonably jury could find in P's favor, or 2. the judge wishes to let the case proceed and consider the question later
If the motion for judgment as a matter of law (or directed verdict) is denied, D presents his case. At the close of D'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. P and D, nonmovant, movant's
After the jury has returned its verdict, the losing party may move for ____________ (old JNOV) under FRCP 50(b) anytime within ____ days after entry of judgment. However, movant must have filed a motion for ________ during trial as a prerequisite. judgment as a matter of law, 28, judgment as a matter of law
After trial, the losing party may file a Motion for a New Trial within ____ days after entry of judgment. The trial judge may grant a new trial on any of the following grounds: 28, 1. trial error 2. newly discovered evidence 3. misconduct 4. result contrary to the great weight of the evidence
The Court of Appeals may reverse the trial judge's granting of a Motion for a New Trial only if there was ______ to support the granting of a new trial. no evidence
Courts may grant a new trial, conditioned on remittitur or additur. _______ orders a new trial unless P accepts alesser amount of damages. ______ orders a new trial unless D agrees to pay extra damages. Federal law prohibits ______ as a violation of the right to jury trial. Remittitur, additur, additur
A new trial may be granted for newly discover evidence if the following conditions are met: 1. the new evidence was discovered after the first trial 2. the new evidence was not discoverable by reasonable diligence prior to the first trial 3. the new evidence is not merely cumulative 4. the new evidence will probably produce a new result
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.
Under FRCP 60(a), a party may correct ______ and other _______ in a judgment. Under FRCP 60(b), a party may ask for a new trial based on ___________. clerical mistakes, inadvertent errors, newly discovered evidence or fraud.
A party may also challenge a final judgment by ________ alleging ________ or _______. filing a new action, newly discovered evidence, fraud
There are 3 methods for challenging a judgment based on newly discovered evidence or fraud: 1. Motion for New Trial- Rule 59 2. Motion for Relief from Judgment- Rule 60 3. A New Lawsuit One principle difference between these three is the time allowed for filing.
Appellate courts primarily review _______. In order to receive appellate review, there must be plain error that was ______ by a ________. questions of law, properly preserved, timely objection
Appellant may preserve error by objecting at the time of the error and making it known to the court: 1. the action desired, or the objection to the action, and 2. the grounds therefor
Appellate courts may also review the jury's decision, but only as to the _________, which is also a question of ____. sufficiency of the evidence, law
_________ courts may review the trial judge's Findings of Fact in a _______. The standard of review is ___________. Appellate, nonjury trial, clearly erroneous
The 4 procedures for appearing before the Supreme Court are: 1. Writ of Certiorari 28 USC 1254(1), 1257 2. Certification 28 USC 1254(2) 3. Direct Appeal from decisions of three judge courts 28 USC 1253 4. Original Jurisdiction U.S. Const., Art. III 28 USC 1251
Preclusion is the doctrine that limits the relitigation of issues and claims. The two kinds of preclusion are: 1. Claim preclusion 2. Issue preclusion
Another name for preclusion is ___________. res judicata
Claim preclusion includes the doctrines of ______ and ______. merger, bar
Merger applies to judgments for _____. It provides that a ________ judgment for P : P, valid and final, 1. prevents P from suing again, except in a collection action on a judgment, and 2. bars D defenses in an action on the judgment
Bar applies to judgments for ______. It provides that a judgment for D _____________ on the same claim. D, bars another action by P
The elements of claim preclusion are: 1. same claim 2. same parties 3. valid and final judgment
Claim preclusion does not apply to certain actions, including: 1. dismissal on grounds of jurisdiction, venue, or party joinder 2. nonsuit without prejudice 3. where preclusion is denied by statute 4. small claims courts (in some jurisdictions
Issue preclusion is also known as ________. collateral estoppel
Issue preclusion does not apply to whole lawsuits, but to: 1. issues of law or fact 2.that were actually litigated 3. that ended in valid and final judgment 4. where termination of that issue was essential to the judgment, and 5. where the judgment is binding on the party being estopped.
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 1. was a _____ and 2. had a ________. mutuality of parties, party, full and fair opportunity to litigate
The Law of the Case Doctrine is another preclusion device that prevents relitigation of the same issues within _________ prior to the final judgment. the same lawsuit
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