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Civ Pro Final
Terms in this set (31)
1367 (codified Gibbs)
Choice of law REA
Transfer- proper court to proper court, D wants to change court
Venue is improper and court unable to hear case
Procedure for Removal-Notice of removal shall be filed within 30 days after the receipt by the Defendant
Lack of SMJ- non-waiveable
lack of PJ-waiveable
improper venue- waiveable
Failure to state a claim upon which relief can be granted- non waiveable
Must have copy of summons and complaint , must be issued service, service can be made by any non party over 18
may request D waive right to service (cheaper)(more time- 60 days instead of 21)
Individuals dwelling place, someone of suitable age, who resides there
serving a corporation
by hand delivering (NOT mailing) to officer/ agent of co. AND mailing copy to each D
D response options;
1. Answer (admit, deny, insuff. info) 2. Motion (direct attack), 3. Do nothing (collateral attack on PJ after default judgement entered)
Twombly two principles
1. courts ignore conclusions of law and focus on allegations of facts 2. determining whether a complaint states a plausible claim is context specific requiring the court to draw on its experience and common sense (subjective approach of the courts)
Tombly gave rise to tension because:
left tension between plausibility standard (not required to plead facts?) How high is the standard for pleading a complaint?
Motion for judgement on the pleadings-Occurs after pleadings are closed, after the answer is filed- courts consider all pleadings including answers which lists affirmative defenses and documents- 12 c best for affirmative defenses in the answer
Amending the complaint
allows discovery of 1. non privileged matter 2. relevant to any party's claim or defense 3. proportional to needs of the case
protects communication between attorney and client, broken if third party there
Trial prep material definition
document or tangible thing prepared in anticipation of litigation or trial by or for another party or its rep
opinion of work product
mental impressions, conclusions, opinions, or legal theories- sometimes privileged sometimes not
Can you discover if expert will testify at trial?
Can you discover if expert will NOT testify at trial and is NOT employed by party?
Can you discover if expert will testify at trial and is employed by party in anticipation of litigation?
only underextraordinary circumstances
Can you discover if expert will not testify at trial, but is employed by party but not in anticipation of litigation?
yes, treated as ordinary fact witness, normal discovery rules apply
explain how courts feel regarding name of expert retained for trial
courts are split some apply normal discovery others say no
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