Civ Pro

Question 1

Personal Jurisdiction Analysis

Answer 1

Does D have sufficient contacts with the forum so that exercise of PJ is fair and reasonable?

2 Step-Process
1. PJ must fall within a statute
- Long arm statutes!
2. PJ must satisfy the Constitution
- Contact
- Relatedness
- Fairness

Question 2

Contact

Answer 2

Purposeful Availment + Foreseeability

Purposeful Availment
o Voluntary act targeting forum
o D need NOT be physically present in the state – can just be “reaching
out” to the state such as marketing products or sending tortious
emails!

Foreseeability
o Foreseeable that D could get sued in forum

Question 3

Relatedness

Answer 3

Does cause of action arise from or relate to D’s contacts with forum?

If Contacts Related to Case?
o PJ is “specific PJ” and skip to “reasonableness” step

If Contacts UNRELATED to Case?
o Need “general” jurisdiction (PJ over any cause of action, related or
unrelated)

General PJ
o If general PJ exists, D can be sued in the forum on a claim that arose
anywhere in the world!
o Requires D to be “at home” in the forum!
 Human is “at home” in state of domicile
o General PJ if D served with process in forum
o Where is a corporation at home?
 State of incorporation AND
 State of principal place of business (PPB)

Question 4

Fairness

Answer 4

Must be assessed when PJ is “specific” - ***IS NOT ASSESSED WHEN PJ IS GENERAL!!!

Fairness Factors
1. Burden on D and Witnesses to litigate in the forum
2. State’s Interests
3. Plaintiff’s Interests

Question 5

Process and Notice

Answer 5

2 documents - summons and copy of the complaint

Question 6

Who can serve process?

Answer 6

• Any person who is at least 18 AND not a party to the action
• No court appointment necessary

Question 7

When must process be served?

Answer 7

90 days of the filing of a complaint

Question 8

How is process served?

Answer 8

Options for Service on Individual
- Personal service (in-hand delivery)
o CAN BE ANYWHERE!
- Substituted service at (1) D’s usual abode on someone of (2) suitable age and discretion who (3) resides there
o Person does not have to be related – BUT MUST RESIDE THERE!
- Service on agent
o Receiving service must be in scope of agency
- State law methods
o Ex -> Some states allow service by mail

Service on Business Organization
- On officer or agent a copy of summons and complaint
o (President or treasurer)
- State law methods

Service on Minor Incompetent
- Use state law method where service is made

Question 9

Subject Matter Jurisdiction

Answer 9

Courts power over the case!

Federal Question and Diversity of Citizenship

***Federal courts are courts of limited jurisdiction; in order for a federal court to have SMJ over a claim, it must have been granted SMJ by statute -> by statute, federal courts have been granted SMJ in 2 areas… fed question and Diversity

Question 10

Federal Question - SMJ

Answer 10

• Claim arises from federal law
• Determined by well-pleaded complaint

Determining well-pleaded complaint
- Ask -> Is the plaintiff enforcing a federal right?

Question 11

Diversity of Citizenship - SMJ

Answer 11

1. Complete diversity of citizenship AND
   - Citizens of different US States OR
   - Between a citizen of US state and citizen of foreign country! (Alienage Jurisdiction)
2. Amount in controversy exceeding $75,000

**Complete diversity requires that each plaintiff must be of diverse state citizenship of every defendant - when suit is filed

Question 12

How to change domicile?

Answer 12

1. Physical presence in new place AND
2. Subjective intent to make new place domicile for foreseeable future

Question 13

Corporations Domicile

Answer 13

o Any state or country where incorporated AND
o One state or country where PPB is
 PPB = where the corporation’s managers direct, coordinate and
control the business (Nerve Center)

Question 14

Citizenship of Unincorporated Association (Partnership, LLC)

Answer 14

o Takes citizenships of all members!
o LLC = citizenships of general and limited partners

Question 15

Amount in Controversy Rules

Answer 15

Amount in Controversy Rule 1 (Single P vs. Single D)
- A single P may aggregate (add together) all claims against a single D
- Multiple plaintiffs can NOT do this!

Amount in Controversy Rule 2 (Joint Claims)
- Look to total value of claim for joint claim
o The number of parties is irrelevant!
- Not aggregation; not adding anything

Amount in Controversy Rule 3 (Equitable Relief)
- Amount in controversy is determined by looking at value of relief to
plaintiff or defendant

Question 16

Federal courts decline to hear these cases…

Answer 16

Generally, courts will not take jurisdiction over actions involving Divorce, alimony, child custody, and probate… The exception is very narrow and the cat must relate to the issuance of such DECREE!

Question 17

Removal

Answer 17

• Procedure allowing defendant to move case from STATE to FEDERAL
• Court will remand back to state court if removal is improper

**PLAINTIFFS CAN NEVER EVER EVER REMOVE!!

Question 18

Standard for Removal

Answer 18

Case filed in state court could have been brought in federal court – diversity or federal question requirements met!

Question 19

Limitations on Removal of Diversity of Citizenship cases

Answer 19

ONLY APPLIES TO DIVERSITY OF CITIZENSHIP REMOVAL CASES

1. In-state defendant rule -> case should not be removed if any D is a citizen of the forum state
2. Case should not be removed more than 1 year after the case was filed in state court

Question 20

Remand back to State Court time limit?

Answer 20

• P must move to remand within 30 days if defect other than lack of SMJ
• 30-day limit does not apply if federal court has SMJ
• Lack of SMJ is never waived

Question 21

Supplemental Jurisdiction Analysis

Answer 21

**Must have a case already in federal court

Step 1: Look for Diversity or FQ SMJ in additional claim
o No need for supplemental jurisdiction if claim SMJ over additional claim
 Federal court can still hear the claim if it can invoke supplemental jurisdiction
 Supplement jurisdiction is our friend and helps claims get into federal court even
those the claims do not meet diversity or FQ SMJ

Step 2: CNOF
o Must arise from common nucleus of operative fact as claim in existing federal court
case – use CNOF language on exam!
 Same transaction or occurrence always satisfied common nucleus test
* However, for cases based solely on diversity, supplemental jurisdiction is not
available for claims by the plaintiff against persons made parties under the
impleader rules when use of supplemental jurisdiction would be contrary to
the requirements of diversity jurisdiction
o Ps cannot invoke supplemental jurisdiction in diversity case
 One Exception
* Only when there are multiple plaintiffs and the claim by one does not meet
the AIC
o See Hypo 5D

Question 22

Erie Doctrine

Answer 22

**Diversity of Citizenship cases only!
Federal Courts exercising diversity jurisdiction apply federal procedural law of the FRCP, but must also apply state substantive law

Step 1 of an Erie question:
Is there a federal law on point that directly conflicts with state law?
- If so, you apply that federal law so long as it is valid – Supremacy Clause baby
- If it’s a FRCP, it is presumptively valid if it’s arguably procedural
- If no -> move to step 2!

Step 2 of an Erie question:
Federal judge must apply state law if issue is substantive and no applicable federal law
- The 5 “Clearly Substantive” Issue
o Conflict or choice of law rules
o Elements of a claim of defense
o Statutes of limitation
o Tolling of statutes of limitations
o Standard of granting a new trial because the jury’s award was excessive or
inadequate

Step 3a: Determining Whether Issue is Substantive if it is not one of the above 5^
- Outcome determinative
- Balance interest facts
- Avoid forum shopping

Question 23

Venue Analysis

Answer 23

Two Possible Venues

1. Any district where all Ds reside OR
   o Residential Nuance
   - Human -> resides in the federal district where she is domiciled
   - Business -> resides in all districts where it is subject to PJ for the case
2. Where substantial part of claim arose or substantial part of property is located
   o Transactional Venue
   - More than 1 district can satisfy requirement

Question 24

Transfer from a Proper Venue

Answer 24

• Convenience of the parties and witnesses in the interests of justice
  o Burden is on person seeking transfer (usually defendant)
• Public Factors -> what law applies, what community should be burdened with jury
  service, the desire to keep a local controversy in a local court
• Private Factors -> the court considers convenience – for example, it will look to where
  the defendants and evidence are found

Effect on Choice of Law
- Transferee court usually must apply choice of law rules of transferor court

Forum Selection Clause
- Ordinarily enforced if not unreasonable
- Unless public interest factors say otherwise (unlikely)
- Transferee court applies own choice of law rules

Question 25

Transfer From Improper Venue

Answer 25

• If venue improper, court will:
  o Transfer if in interest of justice or
  o Dismiss
• Transferee applies its own choice of law rules, that is, the choice of law rules of the
  state in which it sits, and not the choice of law rules of the transferor court

Question 26

Forum Non Conveniens

Answer 26

Applies when there is another court that is the center of gravity for the case
- cannot transfer to this court because it is outside of the judicial system
- So the court will invoke FNC and either stay or dismiss with the idea that the plaintiff
will then sue in the other court
- The forum (other court) must be available and “adequate”

Question 27

Content of Complaints

Answer 27

1. Grounds of SMJ
2. Short and plain statement of the claim
3. A demand for relief

Question 28

Details in the complaint?

Answer 28

Plaintiff must plead sufficient facts to support plausible claim (Twiqball Case)

Matters Requiring More Detail or Specificity
- Fraud
- Mistake
- Special Damages

Question 29

When must a D respond?

Answer 29

D must respond by motion or answer within 21 days (or 60 days if defendant waived service)

Denial of motion to dismiss? -> 14 days after notice of denial

Question 30

Waivable 12(b) Defenses if not put in the motion or answer

Answer 30

3 P’s and V
o Lack of Personal jurisdiction
o Improper Process
o Improper Service of Process
o Improper Venue

Question 31

12(b) Defenses that can be raised later and are not waived if not put in the motion or answer

Answer 31

Failure to state a claim and failure to join an indispensable party – these motions can be made at trial

A lack of SMJ may be raised AT ANY TIME

Question 32

Right to Amend the complaint?

Answer 32

P has right to amend her complaint once no later than 21 days after the D serves her first Rule 12 response

D has right to amend his answer once no later than 21 days of serving it

Question 33

Joinder by Plaintiff

Answer 33

• P may join as many claims as P has against D
• even if the additional claim is unrelated to the OG claim!
• Must be SMJ over the claim too!

Question 34

Joinder with multiple P’s or D’s (memorize this)

Answer 34

Can join multiple Ps or Ds if the claims:
o Arise from same transaction or occurrence and
o Raise a common question of law or fact

Question 35

Is the absentee (nonparty) necessary to join the case?

Answer 35

Three tests
o Can complete relief be accorded among existing parties?
o Will absentee’s interest be harmed?****
o Will D be subject to multiple or inconsistent liability

***Joint tortfeasors are NEVER necessary!

Question 36

Can absentee to be joined?

Answer 36

Feasible if:
o PJ over absentee AND
o Federal SMJ over claim by or against absentee

If absentee CANNOT be joined, court must proceed without absentee or dismiss the entire case!

Question 37

Compulsory Counterclaim

Answer 37

• Arises from same transaction or occurrence at P’s claim
• Use it or lose it! -> if you do not file it, you waive it
• MUST HAVE SMJ!

Question 38

Permissive Counterclaim

Answer 38

• Does not arise from same transaction or occurrence
• Not lost – can sue in separate case
• SMJ is often the issue -> if no SMJ - look to supplemental jurisdiction!

Question 39

Crossclaim

Answer 39

• Claim against co-party arising from same transaction or occurrence
• NO SUCH THING AS COMPULSORY CROSS CLAIM – MAY OR MAY NOT CLAIM IT!

Question 40

Impleader

Answer 40

• Defendant brings in a new party
• For indemnity or contribution
• Party bringing 3rd party claim is now 3rd party plaintiff and the party being
  impleaded is 3rd party defendant
• Impleader is almost always permissive!! – MAY OR MAY NOT BRING IT

3rd-party D (TPD) may assert claims against the plaintiff and plaintiff may assert claims against the newly added TPD – have to arise out of the same T/O as underlying case
- SMJ is required too – do not forgot!
- If no SMJ, try Supplemental jurisdiction but do not forget about the limitation of SJ
within diversity cases! – only applies to plaintiff! Not to TPD

Question 41

Intervention

Answer 41

• A nonparty absentee uses intervention to bring herself into the case!
• Choose to come in either as P or D
• Application to intervene must be timely
• Intervention can be “of right” or “permissive”

Question 42

Class Action Requirements - 4 elements

Answer 42

CANT
Commonality
o Must be some issue in common to all class members so resolution will generate
answers for everybody in one stroke
Adequate representative
o Class rep will fairly and adequately represent the class
Numerosity
o Too many class members for practicable joined
Typicality
o Rep’s claims are typical of the claims of the class

Question 43

Class Action Types - 3 types - after satisfying the 4 elements of class action, the action must fall into one of the 3 types of actions

Answer 43

Type 1 – Prejudice
o Class treatment necessary to prevent harm or prejudice
 Very rare

Type 2 – Injunctive or Declaratory Relief
o Because Defendant treated class members alike
 Cannot seek damages
 MORE LIKELY ON EXAM

Type 3 – Common Question or Damages
 1. Common questions predominate over individual ones
 2. Class action is superior method for handling dispute
o WATCH FOR THIS ONE ON EXAM
o Often used in Mass Torts!
o The court must give notice to class members!

Question 44

CAFA

Answer 44

Special grant of SMJ
- Class = at least 100 members
- Any class member diverse from any D = diversity
- Aggregated claims exceed $5 million

Question 45

Initial Disclosures

Answer 45

• Names, numbers, and addresses of people with discoverable information if might
  be used to support claims or defenses
• Documents (ESI, tangible things) if might be used to support claims or defenses
• Within 14 days of the Rule 26(f) conference. Each party must disclose certain info
• Computation of damages
• Insurance coverage

Question 46

Expert Witnesses

Answer 46

• Consulting experts need not be disclosed absent exceptional circumstances (ones
  that do not testify!!)
• Testifying experts must be disclosed!
• Written report by expert must be disclosed
  o Includes
   Opinions that EW will express
   Bases for the opinions
   Facts used to form opinions
   EW’s qualifications
   How much the EW is being paid
• Draft reports and communication are protected work product

Question 47

Deposition

Answer 47

• Live testimony of parties or non-parties, under oath, given in response to questions
  by counsel!

Subpoenas or Notice of Deposition
- Non-parties must be served with subpoena
- Notice of deposition sufficient for parties

Subpoena Duces Tecum
- Subpoena requiring deponent to bring material to depo

Limits on Depos
- Unless court orders otherwise:
o No more than 10 depos
o Cannot depose same person or twice
o Cannot exceed one 7-hour day

Question 48

Interrogatories

Answer 48

Written questions to be answered in writing under oath
- Only to parties, not nonparties!
- Limited to 25 (unless court order or stipulation)
- Must answer in 30 days

Question 49

RFP’s

Answer 49

• A request to produce asks a party to make available for review and copying documents
  or things, including electronically stored information, or to permit entry on designed
  property to inspect, measures, etc.
• Disclosing party must respond to the request in writing within 30 days of service
• Only parties can be sent RFP – but a nonparty can be served with a subpoena to
  require her to disclose the same types of information

Question 50

Medical Exam

Answer 50

• Court order required to compel
• Parties
  Elements
• 1. Health must be in controversy AND
• 2. Good cause

Question 51

Request for Admission

Answer 51

Written request asking opponent to admit facts
o Must respond within 30 days
o Response -> deny, deny knowledge, object, or admit
 If party fails to deny a proper request, the matter is deemed admitted
o Reasonable inquiry must be made before answering

Question 52

Discovery

Answer 52

Generally, discover may be had of any matter not privileged that is relevant to the claim or defense of any party, including the identity of persons having knowledge of relevant facts

The costs of discovery and the needs of the case also will be considered

ON a showing of good cause, the court could order disclosure of any information that is relevant to the subject matter of the current litigation

**In camera inspection -> court inspects files and redacts information that is irrelevant to the current information

Question 53

Work Product

Answer 53

Material prepared in “in anticipation of litigation”

Discovery of Work Product
- Must show (1) substantial need and (2) undue hardship
- Opinion work product cannot be discovered

Generally court will look at if reports/work product indicating any impressions or trial strategy from the attorney when making the report

Question 54

TRO

Answer 54

Preserves status quo until preliminary injunction
- Cannot exceed 28 days (14 days plus 14-day extension)
- Treated like a preliminary injunction after 28 days
- A court may grant, in its discretion, an ex parte (without notice to other party) TRO if
the moving party gives specific facts in an affidavit or in the verified complaint to
establish that immediate and irreparable injury will result to the moving party
before the adverse party can be heard in opposition

Question 55

Preliminary Injunction

Answer 55

Preserves status quo until trial
- Irreparable harm
- Likely to win on the merits
- Balance of hardships
- Public interest

Question 56

Voluntary Dismissal and Voluntary Dismissal with Court Permission

Answer 56

P may withdraw case without court order if D has not filed answers or motion for summary judgment

Voluntary Dismissal with Court Permission
- P makes motion for voluntary dismissal
- Court’s discretion to grant or deny
- First voluntary dismissal is without prejudice
- Second voluntary dismissal extinguishes claim

Question 57

Entry of Default

Answer 57

• P may seek D’s default if D does not respond to complaint within
  o 21 days after service of process
  o 60 days if process waived
• Not automatic
• P must move for entry of default
• D can respond late until default on record

Question 58

Default Judgment

Answer 58

Clerk can enter default judgment if:
o D made no response (has not appeared)
o Claim for sum certain
o P gives affidavit of amount owed
o D is not a minor or incompetent
o **NO NOTICE IS REQUIRED TO BE GIVEN TO D

Hearing and judge’s discretion if clerk cannot enter

Recovery limited by amount in complaint!! - cannot get more money than what is in complaint!

Question 59

Summary of Judgment

Answer 59

Summary Judgment weeds out cases where trial is not needed because there is no dispute of material fact!

Standard
- No genuine dispute on a material fact; AND
- She is entitled to judgment as matter of law

Question 60

Rule 26(f) conference

Answer 60

At least 21 days before court’s scheduling order, the parties “meet and confer” to discuss production of required initial disclosures, claims, defenses, settlements, and preservation of discoverable information

Question 61

Judge or Jury?

Answer 61

• Actions at law -> Jury
• Actions in equity -> Judge
• Mixed Suits ->
  o Facts underlying damages tried first before jury
  o Then facts relating only to equity claim are tried to judge
  o If legal and equitable claims are joined in one action involving common fact
  issues, the legal claim is tried first before the jury, and then the equitable
  claim is tried to the court
   The jury’s finding on fact issues will bind the court in the
  equitable claim.
• Jury must be demanded within 14 days after the service of the last pleading
  showing jury triable issue

Question 62

Judgment as a Matter of Law (JMOL)

Answer 62

• Reasonable people could not disagree on result
  o Court views evidence in light most favorable to non-moving party
• Motion can be made after the opposing party has been heard on the issue

Question 63

Renewed Motion for JMOL

Answer 63

RJMOL comes up after trial, after jury returns verdict
- Same standard as JMOL - within 28 days of verdict
- A party is limited to the grounds raised in the initial JMOL, OR a party is unable to “renew” an objection that was not raised in the initial motion, as there would be no objection to renew
- … so if the RJMOL raises a different ground, its not proper

*** A MOTION JMOL AT TRIAL MUST HAVE BEEN MADE TO PROPERLY MAKE RJMOL
- Timing for RJMOL -> 28 days after entry of judgment
- Requirement for motion -> a motion JMOL at trial must have been made!

Question 64

New Trial Motion

Answer 64

• A new trial may be granted because of some serious error that occurred during the trial (example - an error in the admission of evidence , error in instructing the jury, verdict is excessive)
• in theory, a new trial could be granted if the jury’s verdict is against the weight of evidence, but the judge ma not replace the jury verdict with the verdict he would have reached, so it must be a serious error in the judgment
• Within 28 days of verdict
• It’s a “do over” because something at trial requires it

**RJMOL is more drastic (take W from one and give it too other…)
- A new trial is just do an over and either can party win!
- In a diversity case, federal trial courts are required to apply a state law standard when considering a motion for a new trial based on the excessiveness of the verdict

Question 65

Remittitur

Answer 65

Playing hardball with plaintiff (P received too much $$)
- Damages figure shocks the conscience
- P remits a portion of damages or undergoes new trial
- Both state and federal court

P can not give back some money and accept a little less… HAS TO BE ALL OR NOTHING!

Question 66

Additur

Answer 66

Playing hardball with Defendant
- Remember, damage figure must shock the conscience
- Add to damages or D undergoes a new trial
- NOT IN FEDERAL COURT!

Question 67

Final Judgment Rule

Answer 67

• The losing party has a right to appeal if the court’s order is a final judgment
• A final judgment is one that determines the merits of the entire case

Denial of a motion for summary judgment is not a final judgment and thus not applicable

When a court grants summary judgment on some but not all of the claims in an action, the court’s order is not final and thus not appealable unless the court expressly determines that there is no just reason to delay entry of judgment

The granting of a new trial is not a final judgment and thus not appealable

Question 68

Interlocutory Appeals

Answer 68

Orders that may be immediately appealed include:
o (i) an order granting an injunction (or continuing, modifying, dissolving, or refusing to
dissolve an injunction)
o (ii) an order appointing a receiver, or refusing to wind up or take steps to accomplish
purposes of receiverships
o (iii) decrees in admiralty cases that find liability but leave damages to be assessed later
o (iv) a patent infringement order where only an accounting is wanting, and
o (v) an order whereby possession of property is changed or affected, such as orders
dissolving writs of attachment and the like

Question 69

Review of Questions of Law - Standard?

Answer 69

De Novo - no deference is given to the district judge

Included is when a judge gives jury instruction that summarizes a question of law

When an appellate court reviews a trial court’s ruling on a post-trial motion for judgment as a matter of law (including a renewed one), it employs a de novo standard

Question 70

Questions of Fact in Bench Trial - Standard?

Answer 70

Clearly Erroneous

Occurs when the district judge determines questions of fact

Question 71

Questions of Fact in Jury Trial - Standard?

Answer 71

“Reasonable people could not have made that finding”

Jury decisions are given great deference

Question 72

Review of Discretionary Matters - Standard?

Answer 72

Abuse of Discretion

Ex. Whether to grant a motion or allow permissive intervention

In order to reserve its right to appeal an error in an instruction given or, as is the case here, a failure to give an instruction, a party must object on the record before the instructions are given
- If adequately preserved, the instructions are reviewed using an abuse of discretion
standard
- However, if the objection is not made (and therefore not preserved for full appellate
review), then the court’s review is limited to considering whether there was a plain
error in the instruction that affected substantial rights
When an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a clear showing of an abuse of discretion

Question 73

Claim Preclusion (Res Judicata)

Answer 73

For a claim to be precluded (or barred), three things must be true!
o 1. Same plaintiff vs. Same defendant
o 2. Final judgment on merits
o 3. Same Claim
 Majority view -> same transaction or occurrence (T/0)
 Minority primary rights view -> Separate claims for personal injury and property
damage
- Where the claimant won the earlier lawsuit, the claim is said to be merged into the
prior judgment
- Where the defendant won the earlier lawsuit, the claim is said to be barred by the prior
judgment

Question 74

Issue Preclusion (Collateral Estoppel)

Answer 74

• 1) Issue in both actions must be the same
• 2) Case 1 ended in valid, final judgment on the merits
• 3) Same issue actually litigated and determined in case 1
• 4) Issue was essential to judgment in case 1, in essence, it would not be fair and unequitable to apply issue preclusion

Against whom is preclusion used
o Issue preclusion can be used only against previous party!
By whom is preclusion being used
o When someone who was not a party to Case 1 tries to use issue preclusion in
Case 2, it is called “nonmutual” issue preclusion!

Question 75

Defensive Nonmutual Issue Preclusion

Answer 75

Person asserting preclusion to avoid liability was not party to first case

Question 76

Offensive Nonmutual Issue Preclusion

Answer 76

Person asserting preclusion to support claim was not party to first case

Must be fair and equitable to do so

Question 77

Service on Foreign Corporation

Answer 77

Service on a foreign corporation may be made in accordance with international treaty

If no treaty, service on a corporation can be made:
o In accordance with the foreign country’s law
o As the foreign authority directs in response to a letter requires for guidance
o By having the clerk mail process to the defendant with a signed receipt requested OR
o By any other means not prohibited by international agreement as the court may order it