Civil Procedure - Federal

Question 1

What is Personal JDX?

Answer 1

Court’s power over the parties.

Question 2

What is Subject Matter JDX?

Answer 2

Court’s power over the case.

Question 3

What is the PJ two-step analysis?

Answer 3

1) The exercise of PJ must first fall within a long-arm state statute; and

2) The exercise of PJ must satisfy the Due Process analysis.

Question 4

For the constitutional analysis, we ask: Does the D have such minimum contacts with the forum so JDX does not offend traditional notions of fair play and substantial justice?

To answer this question, what set of factors do we assess?

Answer 4

1) Contact

2) Relatedness

3) Fairness

Question 5

Under the “minimum contacts” element in the PJ analysis, what are two factors that must be addressed?

Answer 5

1) Purposeful availment - the contact must result from D’s purposeful availment (voluntary act); and

2) Foreseeability - is it foreseeable that D could be sued in the forum?

Question 6

Under the “Relatedness” element in the PJ analysis, what do we ask?

Answer 6

Does Plaintiff’s claim arise from or relate to D’s contact with the forum?

If yes - Specific JDX

If no - investigate if General JDX is possible

Question 7

For specific PJ JDX, the court must look at the fairness factors to asses whether PJ would be fair or reasonable under the circumstances. What are the three fairness factors?

Answer 7

1) Burden on the D and witnesses (relative wealth of the parties is not determinative)

2) State’s Interest

3) Plaintiff’s Interest

Question 8

What is General PJ?

Answer 8

Court may have power over a Defendant on a claim that arose anywhere in the world. However, to have general PJ, the D must be at home in the forum.

Question 9

For General PJ purposes, where is a human “at home”?

Answer 9

Where they are domiciled - Where they reside with the intent to remain indefinitely.

Question 10

For General PJ purposes, where is a corporation subject to general PJ?

Answer 10

The company must be “at home” in the forum.

1) The State in which it is incorporated; and

2) the State in which it has its principal place of business.

Question 11

In addition to PJ, the D is entitled to notice that she has been sued. Notice must be “reasonably circulated, under all the circumstances, to apprise interested parties of the action. In a regular lawsuit, notice consists of two documents that create “Process.” What are they?

Answer 11

1) Summons - A formal court notice of suit and the timing for response;

2) A copy of the complaint.

Question 12

Who can serve process?

Answer 12

Any person who is at least 18 years old and NOT a party to the action.

Question 13

When must service process be served?

Answer 13

Service must take place within 90 days of the filing of the complaint.

Question 14

If a D waives service of process, does he waive any defenses like lack of PJ?

Answer 14

NO

Waiving service of process does NOT waive any defenses like lack of PJ.

Question 15

Under Subject Matter JDX, there are two main avenues for a federal court to hear a case:

Answer 15

1) Federal Question JDX;

2) Diversity of Citizenship.

Question 16

What are the two requirements for the diversity of citizenship SMJ?

Answer 16

1) The case is between citizens of different U.S. States (diversity) (any plaintiffs cannot be a citizen of the same State as any defendants; the diversity is determined when the case is filed); AND

2) The amount in controversy exceeds $75,000.

Question 17

For there to be federal question JDX, the plaintiff’s claim must “arise under” federal law. For FQ JDX, the pleader must follow:

Answer 17

The “Well Pleaded Complaint” rule. The plaintiff’s claim itself MUST “arise under” federal law.

Ask if the plaintiff is enforcing a federal right.

If yes - the case can go to federal court under FQ JDX

If no - the case cannot go to federal court under FQ JDX

Question 18

What is Removal?

Answer 18

The Defendant might be able to “remove” the case from State court to Federal court.

This is only available to defendants.

Question 19

What is Remand?

Answer 19

The federal court may “remand” the case down to State court.

Question 20

When must the defendant remove the case to federal court?

Answer 20

No later than 30 days after service (not filing) of the first paper that SHOWS the case is now removable.

Question 21

What cases may be removed?

Answer 21

The Defendant may remove a case that meets the requirements for:

1) Diversity of citizenship; OR

2) FQ JDX

Question 22

There are two limitations to removing a case based solely on diversity of citizenship. What are they?

Answer 22

1) The case should not be removed if any defendant is a citizen of the forum state (the “in-State defendant rule”); AND

2) The case should not be removed more than 1 year after the case was filed in State court.

Question 23

When a defendant removes to the federal district court “embracing” the State court where the case was filed, does it matter if the venue is proper or not?

Answer 23

NO! IT does not matter if this venue would have been proper under the venue statutes.

Question 24

Supplemental JDX is not similar to FQ or Diversity of citizenship. What is the main difference?

Answer 24

FQ or Diversity of citizenship get CASES into federal court

Supplemental JDX gets CLAIMS into a federal case, even though the claims cannot use diversity of citizenship or FQ SMJ.

Question 25

Assuming we want to get a claim into the case through supplemental JDX. To do this, there are two steps:

Answer 25

1) The additional claim must share a “common nucleus of operative fact” (CNOF) with the claim that satisfied federal SMJ. This test is broader than Transaction/occurrence test.

2) If the main claim is valid under diversity of citizenship, then the additional claim may NOT be brought in under Supp JDX if the PLAINTIFF is seeking to bring this claim in. . . this limitation does not apply to defendants.

Question 26

Even if the requirements for supplemental JDX are met, the court has discretion to decline it. It can do so if the State law claim is complex or State law issues would predominate the case. But the more likely one is this:

Answer 26

It can decline supplemental JDX if the claim on which federal SMJ is based is dismissed early in the case

Question 27

The Erie doctrine is used in a diversity of citizenship case in federal court where the federal judge must decide a particular issue. She must use the Erie doctrine to determine whether to follow State law or ignore it.

There is a three step approach for Erie questions. What are they?

Answer 27

Step 1: Ask: Is there some federal law on point that directly conflicts with State law? If so, apply the federal law so long as its valid. FRCP are presumptively valid and are ok if they are arguably procedural.

Step 2: If there is no federal law on point, the federal judge must apply State law if the issue to be decided is “substantive.” There are 5 issues that are clearly “substantive” and the federal court must apply State law on these issues:

1) Conflict (or choice) of law rules;
2) Elements of a claim or defense;
3) Statutes of Limitations;
4) Rules for tolling statutes of limitations; AN
5) The standard for granting a new trial because the jury’s damages award was excessive or inadequate.

Step 3: If there is no federal law on point and the issue is not one of the 5 listed above, the federal judge must determine whether the issue is “substantive.” There are three factors to determine this:

1) Outcome determinative: would applying or ignoring the state rule affect the outcome of the case? If so, it’s probably a substantive rule, so the court should use the State law.

2) Balance of Interests: Does either the federal or State system have strong interest in having its rule applied? The one with the greater interest should have its law applied.

3) Avoid forum shopping: If the federal court ignores State law on this issue, will it cause parties to flock to federal courts? If so, then use State law.

Question 28

What is Venue?

Answer 28

It tells us exactly where to bring the case. In which federal court to bring it in.

Question 29

The plaintiff may lay venue in any district where:

Answer 29

1) All defendants reside if in the same State (residential venue); OR

2) A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue).

These rules only apply for cases initially filed in federal court. They do NOT apply if the case was removed from State to federal court. For removed cases, venue is in the federal district embracing the State court where the action was filed.

Question 30

For venue purposes, where do humans and businesses reside?

Answer 30

1) Humans “resides” in the federal district where she is domiciled (physical presence with intent to remain indefinitely);

2) Businesses resides in all districts where it is subject to PJ for the case.

Question 31

What is transfer of Venue and what are the requirements?

Answer 31

Transfer goes from one trial court in a judicial system to another trial court in the SAME judicial system.

Original court - “Transferor”
Receiving court - “Transferee”

The Transferee must be a proper venue AND have PJ over the defendant. Must be true without any waiver by the Defendant.

Question 32

What is Forum Non Conveniens?

Answer 32

Like transfer, Forum Non applies when there is another court that is the center of gravity for the case.

But here, the court cannot transfer the case to that court because the intended transferee is in a different judicial system.

The court invoking Forum Non will stay or dismiss the case.

Question 33

The filing of the complaint commences an action. The complaint must contain:

Answer 33

1) A statement of grounds of subject matter JDX;

2) A short and plain statement of the claim (must plead sufficient facts to support a PLAUSIBLE claim) showing that the plaintiff is entitled to relief; AND

3) A demand for relief sought.

The plaintiff need NOT allege grounds for PJ or venue.

Question 34

Rule 12 requires the defendant to respond from a complaint filed and served in one of two ways:

Answer 34

1) By motion; OR

2) By answer.

Question 35

To avoid default, the defendant must respond no later than 21 days after being served with process. If the D waived service, the defendant has how long from when the plaintiff mailed the waiver form to respond?

Answer 35

60 Days

Question 36

Some Rule12(b) defenses are WAIVED if not put in the first Rule 12 RESPONSE (motion or answer). They are:

Answer 36

1) Lack of PJ;

2) Improper Venue;

3) Improper Process (a problem with the papers); AND

4) Improper service of process

Question 37

Some Rule12(b) defenses are NOT waived even if they are not included in the first response. They are:

Answer 37

1) A failure to state a claim and a failure to join an indispensable party. (These motions can be made as late as at trial)

2) A lack of SMJ may be raised at ANY TIME.

Question 38

An answer is a pleading. The defendant does two things in the answer:

Answer 38

1) Respond to the allegations in the complaint (Admit or deny); and

2) Raise affirmative defenses.

Question 39

The rule is that the claims by multiple plaintiffs or against multiple defendants must:

Answer 39

1) arise from the same transaction or occurrence (“T/O”); and

2) Raise at least 1 common question of law or fact.

Question 40

Two things must be true regarding joinder:

Answer 40

1) The joinder must be allowed by the Federal Rules; AND

** 2) There must be SMJ over the case. **

Every single claim in federal court must have SMJ

Question 41

Under compulsory joinder, the court might force some non-party (“absentee”) to join the case, usually on motion by the defendant. There are three questions to ask:

Answer 41

1) Is the absentee necessary?

2) If the absentee is necessary, can the absentee be joined?; AND

3) If the absentee can’t be joined, can the case proceed anyway?

Question 42

Why would a court force a nonparty into the case? Because the absentee is necessary. What does necessary mean? It means that:

Answer 42

1) Without the absentee, the court cannot accord complete relief among the existing parties; or

2) The absentee’s interest may be harmed if she is not joined; OR

3) The absentee claims an interest that subjects a party (usually the defendant) to a risk of multiple obligations.

Remember that joint tortfeasors are NEVER necessary

Question 43

If an absentee is labeled as necessary, a court will see if joinder of the absentee is “feasible.” Joinder is feasible if:

Answer 43

1) There is PJ over the absentee; AND

2) There will be federal SMJ over the claim by or against the absentee.

If joinder of the absentee is feasible, the absentee is simply joined to the case.

Question 44

If the absentee cannot be joined, the court then must determine whether to proceed without the absentee or dismiss the entire case. The court looks at three factors:

Answer 44

1) Is there an alternative forum available? (Maybe some State court);

2) What is the actual likelihood of harm to the absentee?; AND

3) Can the court shape relief to avoid that harm to the absentee?

Question 45

If the court decides to dismiss rather than proceed without the necessary absentee, the absentee is called:

Answer 45

Indispensable

Question 46

What are counterclaims in general?

Answer 46

A claim against an opposing party.

There are two types of counterclaims: compulsory and permissive

Question 47

What are compulsory counterclaims?

Answer 47

A compulsory counterclaim is one that arises from the same T/O as the plaintiff’s claim.

Question 48

What are permissive counterclaims?

Answer 48

A permissive counterclaim is one that does NOT arise from the same T/O as the plaintiff’s claim.

Permissive means that a party is not required to file it in this case and can use on the claim in a separate case.

Question 49

What is a cross claim?

Answer 49

A crossclaim is a claim against a coparty.

It must arise from the same T/O as the underlying action.

But it is not compulsory; it can be asserted in another case.

Question 50

What is an Impleader?

Answer 50

An impleader claim (also called a third-party claim) is one where a defending party is bringing in a new party.

As to the impleader claim, the party bringing the claim is called a third-party plaintiff and the new party is called a third-party defendant (“TPD”)

Question 51

Impleader is often used for indemnity and contribution. What are the liability and damages changes in these cases?

Answer 51

Indemnity shifts liability completely so the TPD must cover the full claim

Contribution shifts it pro-rata so that TPD must cover a pro-rata portion of the claim

Question 52

To implead a third party, the defendant must:

Answer 52

1) File a third-party complaint naming the TPD; AND

2) Have that complaint formally served on the TPD.

Question 53

What is a valid third-party claim?

Answer 53

A defendant may assert a third-party claim against a nonparty who is or may be liable to it (the defendant) for all or part of the claim against it.

The third-party claim must be a derivative claim; the third-party plaintiff must be seeking indemnification or contribution from the third-party defendant.

Question 54

What is an Intervention?

Answer 54

A non-party absentee uses intervention to bring herself into the case.

Question 55

What is an Intervention of Right?

Answer 55

The intervention is “of right” if the absentee’s interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties.

Question 56

What is a class action?

Answer 56

A class action is a case in which representative (reps) sue on behalf of a group.

Question 57

To qualify for a class action, all four of the following must be demonstrated:

Answer 57

1) Numerosity - there are too many class members for practicable joinder. There is no magic number

2) Commonality - there must be some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke

3) Typicality - the class rep’s claims are typical of the claims of the class

4) Representative adequate - the class rep will fairly and adequately represent the class

Question 58

After satisfying the four class action requirements, the class action must fall into one of three types of class actions:

Answer 58

1) Type 1 “Prejudice” - class treatment is necessary to avoid harm (prejudice) either to class members or to the non-class party. [Very rare]

2) Type 2 “Injunctive or Declaratory Relief” - class action seeks an injunction or a declaratory judgment because the D treated the class members alike. Plaintiffs here cannot seek damages.

3) Type 3 “Common Question” or “Damages” - Common questions must predominate over individual questions AND the class action is a superior method to handle the dispute. [Common for mass torts]

3)

Question 59

What must the parties do at a Rule 26(f) conference?

Answer 59

1) Consider their claims and defenses;

2) The possibility of settlement,

3) Initial Disclosures; and a

4) Discovery Plan

Question 60

Initial required disclosures are information that each party MUST give to other parties - even though the parties have not asked for it.

Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference, EACH party must disclose certain information, such as:

Answer 60

1) Identities of persons with discoverable information that the party may use to support her claims or defenses;

2) Documents and things that the party may use to support her claims or defenses;

3) Computation of relief and along with supporting documents;

4) Insurance Coverage

Question 61

After a Rule 26(f) conference, a party may send discovery requests to another party. What are the 5 discovery tools?

Answer 61

1) Depositions - person gives live testimony in response to questions by counsel. The deponent testifies under oath.

2) Interrogatories - written questions to be answered in writing under oath

3) Request to Produce - asks a party to make available for review and copying documents or things, or to permit entry on designated property to inspect, measure, etc.

4) Medical Exam (physical or mental) - court order is required to compel a party to submit a medical exam so long as the person’s health is in actual controversy and for good cause.

5) Request for Admission - written request that someone admit certain matters. If the party fails to deny a proper request, the matter is deemed ADMITTED.

Question 62

What is the scope of discovery?

Answer 62

A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case.

Information need not be admissible to be discoverable

Question 63

A party can object to discovery on the basis of evidentiary privilege.

What is the work product protection?

Answer 63

Work product is material prepared in anticipation of litigation. This material becomes qualified immunity to the discovery.

Question 64

What is qualified work product?

Answer 64

Work product that may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way.

Question 65

What is absolute work product?

Answer 65

Work product that is absolutely protected and cannot be discovered. Opinion work product consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party.

Question 66

There are three ways courts get involved in discovery disputes. What are they?

Answer 66

1) Party may seek protective order from an undue discovery request. Court may deny, limit, or permit discovery on specified terms;

2) Compel the party to answer any unanswered questions; or

3) Impose various “merits” sanctions on the producing party.

Question 67

What are examples of “merits” sanctions that a judge may impose on an uncooperating party during discovery?

Answer 67

1) Establishment order (establishes facts as truth);

2) Strike pleadings of the disobedient party (as to issues re the discovery);

3) Disallow evidence from the disobedient party (as to issues re the discovery);

4) Dismiss plaintiff’s case (if bad faith shown);

5) Enter default judgment against defendant (if bad faith shown).

Question 68

What is an Injunctive Relief?

Answer 68

A court order that the defendant either:

1) Do something; or

2) Refrain from doing something.

Question 69

What is a Temporary Restraining Order?

Answer 69

A court order to preserve the status quo until a hearing for a preliminary injunction can be held.

A TRO may be issued “ex parte,” which means that a court has done something without giving notice to the other party.

Question 70

The court will issue a TRO ex parte only if:

Answer 70

1) The applicant files a paper under oath clearly showing that if the TRO is not issued, she will “suffer immediate and irreparable harm” if she must wait until the other side is heard

2) The applicant’s lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant’s lawyer.

Question 71

What is a preliminary injunction?

Answer 71

A preliminary injunction maintains the status quo until the court can adjudicate the underlying claim on the merits. A preliminary injunction CANNOT be issued ex parte.

Question 72

During the preliminary injunction proposal phase, the burden is on the applicant to show:

Answer 72

1) She is likely to suffer irreparable harm if the injunction is not issued;

2) She is likely to win on the merits of the underlying case;

3) The balance of hardship favors her (threatened harm to applicant outweighs harm to other party if the injunction is issued); AND

4) The injunction is in the public interest.

There is no right to an injunction. The matter is in the court’s discretion.

Question 73

May an order granting or denying a preliminary injunction be appealed as a right?

Answer 73

YES

Question 74

If the plaintiff wants to withdraw the case (voluntary dismissal), she may do so without a court order:

Answer 74

before the defendant serves an answer or motion for summary judgment.

After that point, court permission is required absent a stipulation by the parties.

Question 75

What is Entry of Default?

Answer 75

A default is a notation by the court CLERK on the docket sheet in the case.

Question 76

What is the effect of the entry of default?

Answer 76

The entry of default cuts off the defendant’s right to respond. Entry of default, however, does NOT automatically entitle the plaintiff to relief.

The plaintiff must seek a default judgment.

Question 77

The clerk of the court may enter a default judgment if:

Answer 77

1) The defendant has made no response (did not appear);

2) The claim itself is for a sum certain in money;

3) The plaintiff gives an affidavit of the sum owed; AND

4) The defendant is not a minor or incompetent.

if any of these is not true, the plaintiff must apply to the court for the default judgment.

Question 78

The defendant may move to have the court set aside a default or default judgment by showin:

Answer 78

1) Good cause (like excusable neglect); AND

2) A viable defense.

Question 79

The party moving for summary judgment must show that:

Answer 79

1) There is no genuine dispute on a material fact; AND

2) She is entitled to judgment as a matter of law.

Question 80

When must a party demand for a jury trial?

Answer 80

A party must demand the jury in writing no later than 14 days after service of the last pleading addressing a jury triable issue.

If a party fails to do so, she waives the right to a jury. The last pleading addressing a jury issue is usually the answer.

Question 81

What is a Judgment as a Matter of Law (“JMOL”)?

Answer 81

Similar to the summary judgment (except this applies during trial), reasonable people could not disagree on the result therefore the judge views the evidence in the light most favorable to the non-moving party and makes a decision instead of the jury.

MUST BE MADE BEFORE SUBMITTED TO JURY.

Question 82

What is a Renewed Motion for Judgment as a Matter of Law (“RJMOL”)?

Answer 82

After the trial, the court may enter judgment for the party that lost the jury verdict.

Importantly, the party must have moved for JMOL at the proper time at trial. Failure to do so waives RJMOL.

Question 83

When must the RJMOL be filed after the judgment is entered?

Answer 83

28 Days.

Question 84

A new trial can be granted on any error that makes the judge think there should be a do-over. A party must move for a new trial within 28 days of the judgment. Some reasons a new trial may be granted are:

Answer 84

1) The judge gave an erroneous jury instruction;

2) New evidence was discovered that could not have been discovered before with due diligence;

3) Misconduct was committed by a juror, party, or lawyer, etc;

4) The judgment is against weight of the evidence (serious error of judgment); AND

5) Damages are inadequate or excessive.

Question 85

What is a Remittitur?

Answer 85

Remittitur is playing hardball with the plaintiff.

The court offers the plaintiff a choice: remit part of the damages award or go through a new trial.

Question 86

What is an Additur?

Answer 86

Additur is playing hardball with the defendant.

The court offers the defendant a choice: Add to the damage award or go through a new trial.

Additur may be allowed in State court but not federal court.

Question 87

The losing party has a right to appeal if the court’s order is a final judgment. What is the final judgement rule?

Answer 87

A final judgment is one that determines the merits of the entire case.

Question 88

If the district court’s order is NOT a final judgment, it might be appealed using one of these doctrines:

Answer 88

1) Interlocutory Appeals of Injunctions as of Right (orders granting, modifying, or refusing preliminary or permanent injunctions; NOT TROs);

2) Interlocutory Appeals Act;

3) Collateral Order Doctrine

Question 89

The Interlocutory Appeals Act allows appeal of a nonfinal order if:

Answer 89

1) The district judge certifies that it involves a controlling issue of law;

2) As to which there is substantial ground for difference of opinion; AND

3) The court of appeals agrees to hear it.

Question 90

Under the Collateral Order doctrine, the appellate court has discretion to hear an appeal on an issue if that issue:

Answer 90

1) Is distinct from the merits of the case;

2) Involves an important legal question; AND

3) Is essentially unreviewable if parties await a final judgment.

Question 91

What standard of review is used for reviewing question of law?

Answer 91

De Novo standard; no deference is given to the district judge when reviewing that decision.

Question 92

What standard of review is used for reviewing question of fact in a bench trial?

Answer 92

The court of appeals will affirm unless the findings are clearly erroneous.

Question 93

What standard of review is used for reviewing question of fact in a jury trial?

Answer 93

The court of appeals will affirm unless reasonable people could not have made that finding.

Question 94

What standard of review is used for reviewing discretionary matters?

Answer 94

The court of appeals will affirm unless the district court judge abused her discretion.

Question 95

For a claim to be precluded (or barred), three things must be true:

Answer 95

1) Same claimant suing the same defendant;

2) Valid, Final judgment on the merits;

3) Case 1 and Case 2 must be the “Same Claim.”

Question 96

What are the 5 requirements for issue preclusion?

Answer 96

1) Case 1 ended in valid, final judgment on the merits;

2) Same issue actually litigated and determined in Case 1;

3) Issue was Essential to Judgment in Case 1;

4) Against Whom is preclusion Used? (Due Process Factor; did this person have their day in court already);

5) By Whom is Preclusion Used? (Mutuality Rules).

Question 97

In determining whether nonmutual offensive issue preclusion (as a sword) is fair, the court will consider whether

Answer 97

1) The party to be bound had a full and fair opportunity to litigate in Case 1;

2) The party to be bound had a strong incentive to litigate Case 1;

3) The party asserting issue preclusion could have easily joined to Case 1;

4) There have been no inconsistent findings on the issue.

Question 98

Is an order granting certification of a class action immediately appealable?

Answer 98

YES

Question 99

Amendments substituting a new defendant for one originally named are allowed and the amendment will relate back to the time the original complaint was filed if:

Answer 99

1) The claims in the amendment arise from the same transaction or occurrence as the claims set out in the original pleading;

2) Within the time allotted for serving the original complaint (90 days); AND

3) The new defendant received such notice of the action that it will not be prejudiced in defending on the merits and knew or should have known that the action would have been against it (new defendant)

Question 100

Is there a due date for a motion to amend the complaint?

Answer 100

NO.

Judge has discretion to grant complaint amendments so long as it is fair.

There is no absolute deadline for amending the complaints.

Question 101

Amendments to the claims in the complaint may relate back to the time of the original complaint was filed if:

Answer 101

The additional claim substantially relates to the same facts in the original complaint.

Question 102

True or False: Regardless of the basis of subject matter JDX, service may be made by the rules of the State in which the federal court sits or the State in which the service is to be effected.

Answer 102

TRUE

Question 103

What is Merger?

Answer 103

Merger occurs when the plantiff wins; her cause of action is said to “merger” into the judgment such that she cannot relitigate the cause of action later.