Civ Pro Flashcards

Question

Rule for fed court PJ over a nonresident D:

Answer 1

Minimum contacts test: Nonresident D must have certain minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice. Minimum contacts = D’s contacts with forum state must be purposeful and substantial, such that D should reasonably foresee being taken to court there. Fair play and substantial justice factors: 1. Interest of forum state in adjudicating matter 2. Burden on D of appearing in case 3. Interest of judicial system in efficient resolution of controversies, and 4. Shared interests of the states in promoting common social policies

Answer 2

Yes--expressly, impliedly, or voluntarily.

Answer 3

Lack of jx, insufficiency of service of process Must be asserted in responsive pleading (or motion before it is submitted). Failure to object waives the objection.

Answer 4

1. Voluntary: As in appearing in court. But appearance alone does not waive right to object to PJ (if there to object to jx). 2. Consent: D can expressly consent to jx by K, or once an action is brought, impliedly through conduct. 3. Domicile: If authorized by statute, a state has jx over persons domiciled in state. 4. Long-arm statute: Authorizes PJ over nonresidents who engage in some activity in state or cause some action to occur within state to extent permissible under DPC. 5. Attachment of property: Under “attachment jurisdiction,” which was historically a type of quasi-in-rem jurisdiction, a plaintiff could use attachment of property in the forum state to obtain jurisdiction. Under current precedent, however, there must be minimum contacts between the defendant and forum state to establish jurisdiction.

Answer 5

When CoA arises out of or closely relates to a D’s contact with forum state.

Answer 6

Requires that D be domiciled in or have continuous and systematic contacts with the forum state. Confers PJ even when CoA has no relationship with D’s contacts with the state.

Answer 7

Partnerships: Each partner is generally an agent of partnership. Corporations: Out-of-state corporation’s contacts with forum state doesn’t automatically establish jx over wholly-owned subsidiary unless it is parent’s alter ego or acting as agent. Employees/agents: Contacts by nonresident employer’s agents/employees imputed to employer if acting within the scope of agency/employment. Not usually applicable to independent contractors.

Answer 8

Any action

Answer 9

1. If incorporated there (resident corporation) 2. If principle place of business there 3. If contacts with forum states so continuous and systematic as to basically render them at home there (exceptional cases)

Answer 10

Incorporated in the forum state

Answer 11

It is generally accepted that merely having a website does not subject a defendant to process everywhere that the site can be viewed. Most jx base jx over a nonresident’s website on the degree of interactivity between the website and the forum. When a website’s purpose is to assist in conducting direct business transactions, courts are more likely to find minimum contacts with a state and assert personal jurisdiction.

Answer 12

Must still satisfy DP requirements for PJ because they affect the rights of individuals in the property. In general, for in rem jx to exist, the property at issue must be present within the forum state. In rem jx can be challenged if property is fraudulently brought into state. DP is met if the notice is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” It is not sufficient to simply post the notice on the property or publish the notice in a newspaper as to persons who are known to have an interest in the property and whose whereabouts are reasonably ascertainable. In addition, any absent D who does not personally receive notice may set aside the judgment at any time within one year of the final judgment.

Answer 13

D whose property is subject to the judgment generally must have sufficient minimum contacts with the forum state to justify the exercise of PJ over the matter. So must satisfy minimum contacts test. When the action directly relates to property rights, such as the foreclosure of a mortgage or other lien, the minimum contacts requirement is satisfied because of the relationship between the claim and the property. Provided the owner of the property is given proper notice and an opportunity to be heard, the judgment is personally binding on D. If D chooses not to appear, the judgment of a federal district court is confined to the property that is the subject of the action. When the underlying action does not relate to property rights, but the property instead serves only as the relief sought, such as in a breach of contract action in which the contract does not involve the in-state property, the minimum contacts requirement likely is not satisfied, and the court lacks PJ to adjudicate the matter.

Answer 14

Reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Answer 15

If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through in-person delivery, registered mail, return receipt requested, or some other means likely to notify the particular individual is required. If the plaintiff knows that the defendant did not receive notice, then the plaintiff cannot proceed unless there are no other reasonable methods to notify the defendant. If the identity or address of an interested party is not obtainable through reasonable efforts, then other means, such as publication of notice in newspapers, may be satisfactory. The constitutional test is, generally, what is reasonable under the circumstances. Summons must be served with a copy of the complaint. Rule 4(m) gives the plaintiff 90 days after the filing of the complaint to serve the summons, with extensions for good cause shown. Rule 4(m) does not apply to service in a foreign country. The person actually serving the summons must meet 2 requirements: (1) . They must be at least 18 years old. (2) . They must not be a party to the lawsuit. (A party’s attorney is not considered a “party.”) FRCP allow P to serve the summons by following state law (even though the complaint was filed in federal court): (1) . The state within which the complaint is filed. (2) . The state within which service is actually made. FRCP provides three more options: (A) delivering a copy of the summons and complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. For corporations: Plaintiff can have the complaint served “by delivering a copy of the summons and of the complaint to an officer (management), a managing or general agent (invested with substantial authority), or any other agent authorized by appointment or by law to receive service of process.” In certain cases, the summons and complaint may also have to be mailed to the defendant as an additional measure.

Answer 16

1. Special appearance: Procedure by which D appears before a court for the specific purpose of challenging personal jurisdiction. D is generally not considered to have consented to jurisdiction by making the special appearance, as long as personal jurisdiction is contested in the defendant’s initial pleading. If anything going to the merits of the case is raised in the pleadings, then D will likely be found to have made a general appearance in the case and waived any objection with regard to PJ. FRCP abolished, but a party may make a motion to dismiss the claim for lack of PJ under Rule 12(b)(2) without becoming subject to jurisdiction on that basis. 2. Collateral attack: Full Faith and Credit Clause decisions recognized only to the extent that a valid judgment was rendered by a court that had jurisdiction over the parties, and the parties received proper notice of the action and a reasonable opportunity to be heard. So D may collaterally attack the judgment on the basis of lack of PJ. If, however, the D had both notice and an opportunity to be heard, then a collateral attack on the judgment is not permitted under the doctrine of res judicata. 4. Immunity: Most states provide immunity from service of process to nonresidents who enter the state for the purposes of attending a trial or deposition as a witness, party, or attorney. The theory behind such immunity is that it promotes full and active participation in the judicial system. The federal courts also generally provide immunity from federal suit under the same circumstances.

Answer 17

In general, venue in a federal civil action is proper in (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located. Otherwise, where any D is subject to PJ. A defendant that is an entity with the capacity to sue and be sued, regardless of whether incorporated, is deemed to reside in any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question.

Answer 18

Individuals: Judicial district where D is domiciled. D entities: In any judicial district in which the entity is subject to PJ with respect to the civil action in question. In a state that contains multiple judicial districts and in which a X corporation is subject to PJ at the time the action is commenced, the corporation “shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to PJ if that district were a separate State.” If there is no such district, then the corporation is deemed to reside in the district with which it has the most significant contacts. P entities: Judicial district where principal place of business is located.

Answer 19

Transfer permitted to any district where case could have been brought or to which all parties consent. DJ: New district court must apply law from previous court. FQ: New district court in another appellate circuit will apply fed law as interpreted by its court of appeals (not the appellate circuit of the transferring district court).

Answer 20

Dismiss case or transfer case to proper district if it's in the interest of justice. DJ: District court to which the case is transferred applies the choice-of-law rules of the state in which it is located (not the state law of the court transferring the case). FQ: New court will apply its own court of appeals’ interpretation of law (not the appellate circuit of the transferring district court).

Answer 21

CL doctrine that allows a court to dismiss an action—even if PJ and venue proper—if the court finds that the forum would be too inconvenient for parties and witnesses, and that another, more convenient, venue is available. We now allow the remedy of transfer as opposed to outright dismissal. So doctrine now used by a federal district court primarily when the forum that is deemed most appropriate for the action is a state or foreign court. Factors generally considered include: (i) the availability of an alternative forum; (ii) the law that will apply; and (iii) the location of the parties, witnesses, and evidence. D ordinarily bears a heavy burden to displace the P's chosen forum. However, a forum-selection clause shifts the burden to the P to show why the court should disregard the forum-selection clause. The Supreme Court has held that although a forum selection clause does not render venue improper in other districts, a motion to transfer to the forum state agreed to by the parties should be granted in “all but the most unusual cases.”

Answer 22

1. FQ: Federal substantive and procedural law controls, as well as federal common law (for enumerated list, since no general fed CL) 2. DJ: State substantive law (of state where fed court sits; look to their choice of law rules); but federal procedural rules. a) If some state rule vs. FRCP: Apply Fed Rules as long as constitutional and REA met: Ask if rule abridges, enlarges or modifies a substantive right. If yes, apply state rule. If no, apply fed rule if it only incidentally affects litigant's substantive rights. Very rare that REA not satisfied. Almost always apply FRCP. b) If some state rule vs. un-codified fed judicial practice: Ask if meaningful incentive to sue in fed court. If yes, then use state practice. If no, then use fed practice. Even if yes, if it's an important fed interest, then still use fed practice.

Answer 23

1. procedural (so fed law) 2. procedural (so fed law) 3. substantive (so state law) 4. substantive (so state law) 5. procedural (so fed law) 6. substantive (so state law)

Answer 24

1. Admiralty cases 2. When the U.S. is a party to the case 3. Interstate disputes 4. Cases implicating relations with foreign countries 5. Cases in which the government acts in a proprietary role (e.g. enters into contracts, issues commercial paper, and oversees regulatory programs), and 6. When Congress has left a gap in a statutory scheme

Answer 25

A “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law.

Answer 26

Apply law of jx in which it is sitting and its conflict of law rules.

Answer 27

Within 90 days of filing a complaint

Answer 28

Request for waiver (with complaint) must be in writing, addressed to individual D or officer/agent of corporation, and give D reasonable time of at least 30 days after request sent to return waiver. Effect: Extends time to serve answer from 21 (after service of process) to 60 days after waiver request sent (90, if foreign). If P and D both in US and D fails to waive for good cause, then D may have to reimburse P for formal service.

Answer 29

A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction. This interlocutory injunction may remain in effect only a limited number of days, to be set by the court, and no longer than 14 days unless good cause exists or the adversary consents. Rule 65(b)(2). TROs are not generally immediately appealable, unless they have the effect of an injunction, as when the court extends the length of the TRO beyond the time limit specified in the rules.

Answer 30

Under Rule 65(b)(1), a TRO may issue without notice to the adverse party if: i) The moving party can establish, under written oath, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition; and ii) The movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required. Motion to dissolve: If the TRO is issued without notice, the adverse party may appear and move to dissolve or modify the TRO, but must give the party who obtained the TRO two days’ notice unless a shorter time is set by the court. Rule 65(b)(4).

Answer 31

A preliminary injunction is a form of relief issued prior to a full hearing on the merits, but only upon notice to the defendant and a hearing on whether the injunction should issue. Should an expedited decision on the merits be appropriate, a court may order a trial on the merits to be consolidated with the preliminary injunction hearing. Rule 65(a). A plaintiff seeking a preliminary injunction must establish that: i) He is likely to succeed on the merits; ii) He is likely to suffer irreparable harm in the absence of relief; iii) The balance of equities is in his favor; and iv) The injunction is in the best interests of the public.

Answer 32

A permanent injunction is a determination on the merits. Once issued, it continues until dissolved by the court, but any affected person may move for modification or dissolution. The standard for a permanent injunction is essentially the same as for a preliminary injunction except that the plaintiff must show actual success on the merits.

Answer 33

The complaint is the initial pleading in an action filed by the plaintiff and serves as notice to the opposing party. Under Rule 8(a), a complaint (or any pleading in which a claim is made) must include: i) A short and plain statement of the grounds that establish the court’s SMJ; ii) A short and plain statement of the claim establishing entitlement to relief; and iii) A demand for judgment for the relief sought by the pleader. A complaint will generally be filed before service on the defendant(s), which must then generally occur within 90 days of filing. Rule 4(m).

Answer 34

Under Rule 12, within 21 days of service of process, a defendant must respond to a complaint either by an answer or by a pre-answer motion, or she must seek additional time to answer. If a defendant does not take one of these steps, then she risks a default.

Answer 35

Prior to filing an answer, D may file a motion raising any or all of the following defenses: i) Lack of SMJ (may be raised at any time, even on appeal); ii) Lack of PJ (must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer or within the time for amending the answer as of right, or the defenses will be waived); iii) Improper venue (must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer or within the time for amending the answer as of right, or the defenses will be waived); iv) Insufficient process (must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer or within the time for amending the answer as of right, or the defenses will be waived); v) Insufficient service of process (must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer or within the time for amending the answer as of right, or the defenses will be waived); vi) Failure to state a claim upon which relief can be granted (may be raised in any pleading, in a motion for judgment on the pleadings, or at trial); vii) Failure to join a necessary or indispensable party under Rule 19 (may be raised in any pleading, in a motion for judgment on the pleadings, or at trial). Such motions generally seek dismissal of the claim. For the defenses of insufficient process and service of process, though, it is common to make a motion to quash the service of process or the process itself.

Answer 36

Under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim. In deciding a motion under Rule12(b)(6), courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff’s favor, and view the pleading in the light most favorable to the plaintiff.

Answer 37

The facts alleged in the complaint must “raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” The complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.

Answer 38

In ruling on a motion to dismiss under Rule 12(b)(6), the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice. If a matter outside the pleadings, such as an affidavit, is presented to the court and is not excluded by the court in its review, then the motion must be treated as a motion for summary judgment under Rule 56, and all parties must be given an opportunity to present all material information for the court’s consideration. Rule 12(d). Note that a court also can consider other matters with regard to a motion to dismiss under other Rule 12(b) defenses.

Answer 39

1. The court must identify and reject legal conclusions unsupported by factual allegations. This includes mere conclusory statements and assertions devoid of facts. 2. The court should assume the truth or veracity of well-pleaded factual allegations and should include a “context specific” analysis that “draw[s] on [the Court’s] judicial experience and common sense” to determine whether the allegations “plausibly give rise to an entitlement of relief."

Answer 40

After answer filed, allows court to dispose of a case when material facts are not in dispute and judgment on merits can be achieved based on content of pleadings. The standard for a motion under Rule 12(c) is generally the same as that for a motion under Rule 12(b)(6). Likewise, if matters outside the pleadings are presented to the court and the court does not exclude them, then the motion is to be treated as a motion for summary judgment under Rule 56.

Answer 41

Responding party may move for more definite statement if claim for relief is so vague or ambiguous that party cannot reasonably draft responsive pleading. The party must make a motion for a more definite statement before filing a responsive pleading. The court may strike a party’s pleading if the party fails to respond to a court order granting this motion within 14 days of the notice of the order. Rule 12(e).

Answer 42

When pleading contains insufficient defense, or redundant, immaterial, impertinent, or scandalous material, court may order such defense or material stricken. Can be used to avoid unnecessary time and money in litigating invalid issues. When a responsive pleading is permitted, the responding party must move to strike prior to responding to such a pleading. When no responsive pleading is permitted, the party must make a motion to strike within 21 days after service of the pleading.

Answer 43

Not specifically provided for in the Rules, but generally allowed by courts if the party acts promptly.

Answer 44

1. Admission/denial—answer must admit/deny P’s allegations, or plead lack of sufficient knowledge (with reasonable investigation) 2. Affirmative defenses—D must state them or they are deemed waived

Answer 45

* Service under Rule 5—service to party w/ attorney must be made to attorney in accordance w/ Rule 5 * No motion to dismiss—21 days after being served with summons and complaint (or 60 days if D timely waived service) * Motion to dismiss—no filing while motion is pending, and within 14 days after notice of court’s action

Answer 46

1. Response—by P to D’s answer within 21 days after being served with order to reply

Answer 47

* Party may amend a pleading once as of right within 21 days if no responsive pleading is required, or after being served with an answer or 12(b) motion; otherwise during/after trial if it conforms to evidence and opposing party has opportunity to prepare * Court should freely give leave to amend a pleading when justice so requires and will not result in undue prejudice to opposing party

Answer 48

New claim—relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction, or occurrence as original pleading New party: o Relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction or occurrence as original pleading o New party receives notice of action within 90 days after original complaint filed o D knew or should have known about action but for mistake concerning proper party’s identity

Answer 49

Under Rule 15(a)(3), D must respond to the amended complaint within 14 days after its service (or within time left on original pleading, whichever is later).

Answer 50

to describe events occurring after filing of earlier pleading

Answer 51

Court may impose sanctions limited to what suffices to deter repetition of conduct by others similarly situated; does not apply to mandatory disclosures and discovery requests, responses, and objections. Types—(i) nonmonetary directives; (ii) penalties to court; or (iii) if imposed on motion, payments to movant for attorney’s fees and other expenses directly resulting from violation

Answer 52

Ps and Ds may join/be joined in one action if any right to relief is asserted jointly, severally, or with respect to or arising out of same transaction, occurrence or series of them and question of law or fact common to all Ps or Ds will arise. Joinder subject to applicable venue requirements.

Answer 53

Both SMJ and in personam PJ. Wrt SMJ: o Ds—SJ doesn’t apply so there must be complete diversity between Ps and Ds and each claim must exceed $75,000 o Ps—SJ is permitted for JX amount less than or equal to $75,000 but there must still be complete diversity

Answer 54

One necessary for just adjudication bc: o Complete relief cannot be provided to existing parties in absence of that person, or o Disposition in absence of that person may impair person’s ability to protect his interest, or o Absence of that person would leave existing parties subject to substantial risk of multiple or inconsistent obligations

Answer 55

SMJ (so if exclusive basis for jx is DJ, then party cannot be added if it would destroy diversity) and in personam PJ. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction or destroy venue must be joined as a party if the party’s participation in the lawsuit is necessary for a just adjudication.

Answer 56

if a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction or destroy venue must be joined as a party if the party’s participation in the lawsuit is necessary for a just adjudication.

Answer 57

if parties cannot be joined because of JX or venue, court may dismiss case and will consider following factors: o Extent to which judgment without party would prejudice them or existing parties o Extent to which protective measures could prevent prejudice o Whether judgment rendered in necessary party’s absence would be adequate, and o Whether P would have adequate remedy if action were dismissed

Answer 58

* Nonparty has interest in property or transaction that is subject matter or action * Disposition of action may impair nonparty’s interest * Nonparty’s interest not adequately represented by existing parties

Answer 59

- Movant has conditional right to intervene under federal statute, or - Movant’s claim/defense and original action share common question of law or fact court must consider undue delay/prejudice to rights of original parties

Answer 60

* Length of time movant knew or reasonably should have known that its interest was threatened before moving to intervene * Prejudice to existing parties if intervention is permitted, and * Prejudice to movant if intervention is denied

Answer 61

allows person holding property (stakeholder) to force all potential claimants into single lawsuit

Answer 62

o Ps—persons with claims that may expose P to multiple liability may be joined as Ds and required to interplead claims though they lack common origin or are adverse and independent rather than identical or P denies liability o Ds—exposed to similar liability may seek interpleader through a cross-claim or counterclaim * SMJ—court must already have JX over all parties, and for DJ, only stakeholder needs to be diverse from claimants (claimants need not be diverse among themselves) * In personam JX—court needs in personam PJ over claimants in order to join them * Venue—interpleader subject to venue requirements

Answer 63

* SMJ—DJ met if any two adverse claimants are citizens of different states, and property at issue must be $500 or more * In personam JX—nationwide PJ and service of process permitted * Venue—proper in any district where a claimant resides

Answer 64

A party may join independent or alternative claims of whatever nature against opposing party SMJ: o DJ—P may aggregate all claims to satisfy amount-in-controversy requirement o FQ—nonfederal claims can be joined only if DJ exists or if claims are part of same case/controversy as federal claim so SJ applies Venue—joinder subject to venue requirements

Answer 65

Within 21 days of service

Answer 66

SMJ—by definition court will have SJ so don’t need independent SMJ from original claim

Answer 67

o Party has discretion if counterclaim isn’t compulsory | o SMJ—need DJ or FQ

Answer 68

can assert counterclaims against original P or D, and governed by requirements for counterclaims and joinder

Answer 69

Within 21 days of service

Answer 70

- A claim against coparty may be asserted if they arise out of same transaction or occurrence that is subject matter of original action or counterclaim and new parties subject to joinder rules - SMJ—by definition court will have SJ so don’t need independent SMJ from original claim - In personam JX and venue—PJ satisfied because parties are already before the court; proper venue over original claim, party cannot object to venue over cross-claim

Answer 71

Definition/possibilities: D (third-party P) can implead nonparty (third-party D) for liability on original claim. Third-party D not liable directly to original P, just third-party P (original D). Third-party D can sue original P if about same transaction/occurrence. Then original P can sue third-party D about same transaction/occurrence. Original P can also implead other parties if original D counterclaims them. Third-party D can even implead others (becoming a fourth-party P vs. a fourth-party D). Timing/process: Can be asserted any time after complaint is filed, but third-party P must get court permission if filed more than 14 days after service of original answer. D would serve a summons and third-party complaint on the third-party D. In deciding whether to grant or deny impleader, court balances efficiency against prejudice. Any party can move to strike a third-party claim, sever it, or try it separately. SMJ: By definition court will have SJ so don’t need independent SMJ from original claim, but if original claim is based only on DJ, claims by P against third-party D must meet DJ or FQ jx requirements on their own. PJ: Court still needs in personam jx over third-party D.

Answer 72

1. Numerosity: Class is so numerous that joinder of all members is impracticable; 2. Commonality: Must be questions of law or fact common to class; 3. Typicality: Claims/defenses of representatives must by typical of class; and 4. Adequacy (of rep): Representatives must fairly and adequately protect the interests of class.

Answer 73

1. Risk of prejudice: Separate actions would create risk that the class opponent would be subject to inconsistent adjudications or if separate actions would impair the interests of class members. 2. Final equitable relief: The class shares a general claim and injunctive or declaratory relief is sought. A single, indivisible remedy would provide relief to each class member (therefore monetary damages not available). ``` 3. Common legal/factual questions: Must predominate over questions affecting individual members and class action is superior method for bringing about fair and efficient adjudication of controversy. Class representatives need not establish likelihood of success on common question of law. ```

Answer 74

1. FQ 2. DJ: a) Need complete diversity but just with class reps (not all class members), and at least one P must meet $75,000 jurisdictional amount (the rest must meet req for SJ, i.e. be part of same case/controversy); or b) Class Action Fairness Act of 2005: Subject matter jurisdiction will be met if: i) The class action involves at least 100 members; ii) Primary Ds are not states, state officials, or other gov entities against whom the district court may be foreclosed from ordering relief; iii) The action does not involve certain securities-related cases, or litigation concerning the internal affairs or governance of a corporation; if the class action claim is based only on federal securities law or corporate governance, then there is no federal jurisdiction under CAFA; iv) The amount in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs; and v) Minimum diversity exists: Satisfied when any member of a class of Ps is a citizen of a state different from any D. Under CAFA, the court is required to repudiate jurisdiction when the primary injuries were incurred in the state in which the action was filed, when more than 2/3rds of the proposed Ps are citizens of the state in which the case was filed, and when significant relief is sought from a D who is a citizen of the state in which the case was filed. If 1/3rd-2/3rds of the proposed Ps and the primary Ds are citizens of the state in which the case was filed, then the court is given discretion to decline jurisdiction.

Answer 75

when there is a defendant class, venue requirements must be met and residence of class representatives (not class members) is what matters

Answer 76

* Generally—subject to certain exceptions, must disclose information regarding individuals having discoverable information, documents supporting claims/defenses, computation and backup of damages, or relevant insurance agreement for satisfying judgment * Standard—information reasonably available to it, and party not excused for not fully investigating case, challenges to insufficiency of another party’s disclosures, or because another party failed to disclose * Timing—within 14 days after the parties’ discovery conference

Answer 77

* Generally—identify expert witnesses and produce expert report subject to certain requirements * Timing—at least 90 days before trial or 30 days after disclosure of opposing party’s expert evidence on same subject matter While experts who may testify at trial must be disclosed as part of the mandatory expert disclosure, experts employed in anticipation of litigation who are not expected to be called as a witness at trial need not be identified, absent exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. Experts who are not expected to be called as a witness at trial generally need not be identified in discovery, regardless of whether the manufacturer specifically requested the identity of all experts consulted through an interrogatory.

Answer 78

Evidence to be presented at trial other than for impeachment. Generally: Witness list by testimony or deposition. Includes the name and, if not previously provided, the address and telephone number of each witness, separately identifying those a party expects to present and those it may call if the need arises. Also documents and exhibits. Timing: At least 30 days before trial. Objections: Within 14 days after disclosures are made or else waived unless excused by court for good cause or pursuant to relevance rules of the FRE.

Answer 79

* Generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in action, proportional to the needs of the case * Relevance—information need not be admissible in evidence to be discoverable * Privileged information (not discoverable)—determined under federal common law for FQ cases, and state law for DJ or SJ

Answer 80

Balance discovery interests and privacy interests. * Generally cannot seek discovery until after discovery conference * Discovery sought is unreasonably cumulative or can be obtained from a more convenient or less expensive source * The party seeking discovery had ample opportunity to obtain information by discovery * The proposed discovery is not relevant and proportional

Answer 81

* Party may not discover documents and tangible things prepared in anticipation of litigation or for trial, unless other party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means * Mental impressions, conclusions, opinions, or legal theories of party’s attorney or other representative are protected

Answer 82

• Expert witnesses may be deposed, but expert report drafts and disclosure are protected, as well as any communications between the party’s attorney and expert witness unless they relate to compensation, facts/data used or assumptions relied upon by expert in forming his opinion

Answer 83

Parties must confer at least 21 days before scheduling conference to consider nature and basis of their claims/defenses and possibility of settlement, automatic disclosures, preserving discoverable information, and developing discovery plan; sets the scope and schedule for discovery

Answer 84

can take place any time after discovery conference and limited to 10 per party (unless showing of good cause to court)

Answer 85

* 25 written interrogatories per party relating to non-privileged matters relevant to any party’s claim/defense and proportional to the needs of the case * Must be fully and separately answered under oath unless timely objected to with specificity

Answer 86

a party has 30 days from being served with request or | 30 days from the parties’ first rule 26(f) conference, if the request was served prior to that conference to respond

Answer 87

the court may order person to submit to physical/mental exam if physical/mental condition is in controversy

Answer 88

a party can serve written request for admission of any relevant, non-privileged matters relating to statements or opinions of fact or to application of law to fact, which once admitted is conclusively established

Answer 89

party can move to compel disclosure or discovery against a party failing to make automatic disclosures, or to respond to discovery requests (including evasive or incomplete disclosure)

Answer 90

if a party fails to obey a court order regarding discovery, the court may impose sanctions subject to the abuse of discretion standard

Answer 91

the court may order measures to cure the prejudice or, if the party acted with the intent to deprive the another party of the information, instruct the jury that it may or must presume that the information was unfavorable to the party or dismiss the action or enter a default judgment

Answer 92

the court may direct counsel and unrepresented parties to appear for pretrial conferences for purposes such as expediting disposition of the action, effective case management, and facilitating settlement

Answer 93

o By filing notice or by stipulation—P can dismiss action without leave of court any time before opposing party serves answer or motion for summary judgment, or by stipulation of all parties who have appeared; dismissal will usually be without prejudice, but the “two-dismissal” rule applies o By court order—decision to dismiss with or without prejudice is left to court’s discretion (usually without prejudice but not a matter of right); court considers whether dismissal without prejudice unfairly affects D; “two-dismissal” rule generally not implicated

Answer 94

when P fails to prosecute or comply with the Rules or court order, D can move to dismiss, which if granted is with prejudice and operates as an adjudication on the merits

Answer 95

when P fails to prosecute or comply with the Rules or court order, D can move to dismiss, which if granted is with prejudice and operates as an adjudication on the merits

Answer 96

when a party fails to defend an action, P may seek default judgment (after at least seven days’ notice to D, if D has appeared), which can be set aside for good cause by the court, depending upon whether D’s failure to act was willful, setting aside default would prejudice P, and D presented a meritorious claim

Answer 97

• Standard—no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law; court will construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of nonmoving party • Burden of proof—the movant has burden of persuasion to show prima facie case before the burden shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of fact • Timing—may be filed anytime until 30 days after close of all discovery; nonmovant generally must be given sufficient opportunity to obtain discovery

Answer 98

the court tells the parties their rights and responsibilities without awarding damages or ordering parties to do (or refrain from doing) anything

Answer 99

Action at law tried on demand to a jury. For state-law claims in diversity actions, federal law will determine whether there is a right to a jury trial.

Answer 100

- must be served within 14 days after service of the last pleading directed to the issue that is to be tried by jury - A party may specify the issues for which a jury trial is demanded (otherwise, the demand is treated as requesting a jury trial for all issues triable by a jury) - Court has discretion to authorize an advisory jury to issue non-binding findings on any issues of fact, and may either adopt or disregard the advisory jury’s findings - A party may withdraw a jury trial demand with the consent of the other parties - Case removed from state court—a party who has made a jury trial demand in accord with state law need not renew the demand; if state law does not require a party to make a jury trial demand, a party need not make one after removal (unless the court orders the parties to do so)

Answer 101

Under the federal rules, a jury verdict must be returned by a jury of at least six members. * At least six and no more than 12 * Once selected, a juror must participate in the verdict unless dismissed for good cause * No provisions for alternate jurors State rules?

Answer 102

peremptory challenges may not be made for racial or gender-based reasons; court will allow three for each party in civil cases but an unlimited number of challenges are permitted for cause (e.g., bias or personal relationship to a litigant)

Answer 103

* A party may request the court to give specific instructions at the close of evidence (or earlier if ordered by the court) * Prior to final arguments, the court must inform the parties of any instructions it proposes to give to the jury; the parties may object to the court’s proposed instructions on the record and out of the jury’s hearing. When a party has submitted proposed jury instructions, the court must also inform the party of the court’s actions with regard to such instructions. * Unless a party objects on the record to an erroneous instruction given or proposed to be given by the court or to the court’s failure to give an instruction requested by a party, the party generally cannot raise the matter on appeal

Answer 104

Under the Federal Rules of Civil Procedure, a jury verdict must be unanimous, unless the parties stipulate otherwise. • Unless the parties stipulate otherwise: o The verdict must be unanimous o The verdict must be returned by a jury of at least six jurors • Form of verdict: o Special—written finding made by the jury on each issue of ultimate fact; judge determines the legal consequences of those findings o General—typically a decision by the jury as to the prevailing party and, if the plaintiff is the prevailing party, the amount of damages o General with special interrogatories—couples a general verdict with a special verdict; used to ensure that the jury independently considered the material facts of the case in arriving at its verdict State rules?

Answer 105

• Concealing facts relating to his qualifications or giving false testimony during voir dire o Party must show that the juror failed to answer honestly a material question and that a proper response would have provided a valid basis for a challenge for cause • Other forms of juror misconduct—violating the confidentiality of deliberations, being improperly influenced by non-jurors, or investigating facts outside of those presented at trial o Court may dismiss juror or order a new trial o A juror may testify about whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear on a juror

Answer 106

1. The court must make findings of fact and conclusions of law on the record at the close of evidence or in an opinion or memorandum of decision filed by the court 2. On appeal, a court’s findings of fact can be set aside only if clearly erroneous

Answer 107

1. Common question of fact or law—the court may join any or all matters at issue, consolidate the actions, or issue any other orders to avoid unnecessary cost or delay 2. Separate trials—a court may order a separate trial of one or more issues or claims for convenience, to avoid prejudice, or to expedite and economize; any federal right to a jury trial must be preserved

Answer 108

Challenges the sufficiency of the evidence in a civil jury trial

Answer 109

* Prior to submission to jury—party may file a motion for judgment as a matter of law (“directed verdict”) * After verdict and entry of judgment—party may renew their motion for judgment as a matter of law (motion for “judgment notwithstanding the verdict” or “JNOV”)

Answer 110

* The court must view evidence in light most favorable to the opposing party and draw all reasonable inferences from evidence in favor of opposing party * Timing—any time before the case is submitted to the jury

Answer 111

* If the court does not grant a directed verdict, movant can file a JNOV no later than 28 days after entry of judgment (jury discharge, if the issue was not decided by verdict) * Can be granted only on grounds raised in the pre-verdict motion * Court may: (i) allow judgment on the verdict; (ii) order a new trial; or (iii) direct the entry of judgment as a matter of law

Answer 112

a decree or order by a court that resolves the parties’ rights and demands for relief in a manner that permits it to be appealed

Answer 113

* Generally—judgment should grant a party the relief to which it is entitled, even if not requested in its pleading * Default judgment—must not differ in kind or exceed amount demanded in pleadings

Answer 114

Costs—unless a federal statute, rule, or court order provides otherwise, the prevailing party is allowed court costs, other than attorney’s fees, without needing to file a motion Attorney’s fees—unless a statute or court order provides otherwise, a claim for attorney’s fees that is not required by law to be proved at trial as an element of damages must be made by a motion filed within 14 days after entry of judgment

Answer 115

(nonjury trial)—must be made within 28 days of entry of judgment; may be combined with a new trial motion

Answer 116

must be made within 28 days of the entry of judgment

Answer 117

the court may grant a new trial, with respect to some or all issues, to prevent a miscarriage of justice A trial court has discretion to grant a motion for a new trial on all or some issues for a variety of reasons, including an excessive verdict.

Answer 118

court can relieve party of final judgment within a reasonable time, and no later than one year following judgment entry for (i) mistake, inadvertence, surprise, or excusable neglect, (ii) newly discovered evidence (not previously discovered through reasonable diligence), or (iii) fraud, misrepresentation, or misconduct by opposing party Other remedies—a court may also: • Entertain an independent action to relieve a party from an order, judgment, or proceeding; • Grant relief to D who was not personally notified of the action; or • Set aside a judgment for fraud on the court.

Answer 119

if more than one claim is presented in case, or there are multiple parties, a district court may direct entry of a final judgment as to one or more issues/parties, but only if the court expressly determines that there is no just reason for delay

Answer 120

If valid judgment is rendered by a court that has jx over the parties, and parties receive proper notice of the action and a reasonable opportunity to be heard, judgment will receive the same effect in other states as state where it was rendered. Satisfaction of the minimum contacts test is generally required for a court to have PJ over D. However, once a court with PJ over a D renders a judgment, that judgment is enforceable by a court in another state by seizure of D's property located in that state, even if D does not have minimum contacts with the state.

Answer 121

1. Valid final judgment on the merits—court must have PJ and SMJ, D must have had proper notice and opportunity to be heard, court must have nothing further to do but order entry of judgment, and decision must be made on merits of claim/defense (rather than technical grounds) 2. Sufficiently identical claims—original and later-filed claim must be sufficiently identical to be barred under claim preclusion (federal “transactional” approach); ex: two actions identical if they arose out of the same transaction? 3. Sufficiently identical parties—P and D must be the same, and in the same roles, in both the original action and subsequently filed action

Answer 122

“offensive” use may be permitted 1. Requirements: • Same issue—facts relevant to particular issue and applicable law must be identical • Actually litigated—the issue must have been actually litigated in the prior action • Final, valid judgment—first determination of issue was within authority of court that decided it and the determination was made in final decision on the merits • Essential to judgment—issue that constitutes a necessary component of the decision reached will be considered essential

Answer 123

* In favor of prosecution (preclusion)—issues determined in a criminal prosecution in favor of the prosecution are generally preclusive in a civil action against D based on the same conduct * In favor of D (no preclusion)—issues determined in a criminal prosecution in favor of D are not preclusive in a civil action against D based on the same conduct because P in the civil action was not a party to the criminal prosecution

Answer 124

Provides that federal courts have original jurisdiction over civil actions arising under the Constitution, laws, or treaties of the United States. Well-pleaded complaint rule.

Answer 125

Compulsory (one that arises out of same transaction or occurrence as P's claim): Need not meet statutory jx amount requirement. Court has SJ. Permissive (claim arising out of unrelated transaction): Must meet statutory jx amount requirement.

Answer 126

At time of service, counterclaim is compulsory if it arises out of same transaction/occurrence that is subject matter of opposing party’s claim and doesn’t require adding another party over whom court has no JX. Must bring it up. Now or never. To determine whether counterclaims or cross-claims arise out of the same “transaction or occurrence,” courts consider whether: (i) the issues of fact and law in the claims are essentially the same; (ii) the same evidence would support or refute the claims; (iii) there is a logical relationship between the claims; and (iv) res judicata would bar a subsequent suit on either claim. The most frequently considered factor is whether there is a logical relationship between the claims, but any one of them can support a conclusion that the claims arise from the same “transaction or occurrence.”

Answer 127

A claim arising out of a transaction that is unrelated to the plaintiff’s claim.

Answer 128

District court may have SJ over claims that involve the joinder or intervention of additional parties over which the court would not otherwise have jurisdiction if the claims involving the additional parties satisfy the common-nucleus-of-operative-fact test.

Answer 129

A party asserting a claim (or counter claim, cross claim or third party claim) against any other party may join all its claims against that party as long as there is subject-matter jurisdiction; the claims need not be related.

Answer 130

Only if arise from same transaction or occurrence as original action or counterclaim, or relate to the same property that is subject of original action.

Answer 131

It's treated as a counterclaim (treated as a new "v."). Always a counterclaim when there is an existing "v." and someone reaches back across it. Can sue about anything, even if unrelated.

Answer 132

Where claims of multiple parties are combined because their rights to relief arise out of the same transaction or occurrence and issues of law or fact that will arise at trial are the same for each of those parties.

Answer 133

A rule of the Federal Rules of Civil Procedure obligating a party, with limited exceptions, to plead a counterclaim against an adverse party where the counterclaim arises from the same transaction or occurrence as the adverse party’s claim and where it does not require joinder of another party over whom the court lacks jurisdiction. Cross claims?

Answer 134

Mandates that those parties who are necessary and indispensable to the litigation be joined. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction or destroy venue must be joined as a party if the party’s participation in the lawsuit is necessary for a just adjudication. Required/necessary persons must be joined. If can't be joined, court can dismiss the case (required party indispensable) or proceed without them if doing so would be fair (based on equity and good conscience). Required = must be joined if possible; court cannot provide complete relief without that person in the case; person has interest in case and proceeding without her would impair her ability to protect her interest or leave an existing party subject to multiple or inconsistent liabilities. Tortfeasors facing joint and several liability are not considered necessary parties. Factors for court to consider in dismissing or proceeding without required party: 1. Would a judgment without required person prejudice that person or existing parties? 2. Could a judgment without them be crafted to avoid prejudice? 3. Would a judgment without the required person be adequate to resolve the dispute? 4. Would P have adequate remedy if case dismissed?

Answer 135

1. Define the class 2. ID the class claims or issues 3. Appoint class counsel

Answer 136

Must provide notice of certification to class members. Class reps generally responsible for this. For risk of prejudice or final equitable relief cases, each member who receives notice must be included in the class. [One practice Q said notice for these types of class actions is not required.] For common legal/factual questions, members can opt out and won't be bound by the judgment, but could still be subject to claim or issue preclusion. Notice in this latter type must explain option to opt-out and the binding effect of the class-action judgment on those who remain in class. When notice is required for a class action, it must be the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.

Answer 137

Possible but need court approval, and class members must get notice and the chance to be heard before approval.

Answer 138

Rule 4(k)(2): Federal court may exercise PJ over a foreign D, even though the court would not otherwise have PJ over the D due to the application of the “minimum contacts” test to the D's contacts with the forum state. Requirements: 1) P's claims must be based on federal law. 2) The exercise of PJ over D must be consistent with the US Constitution and laws. I.e., D must have sufficient contacts with the US as a whole to justify the exercise of PJ over D.

Answer 139

Under the final judgment rule, a federal appellate court has jurisdiction over an appeal of a final judgment of the trial court. A final judgment is a decision on the merits that leaves nothing for the court to do but execute the judgment. Rule 54(b), which permits a trial court to direct entry of an appealable final judgment, only applies to cases in which there are multiple claims or parties.

Answer 140

i) The date and time issued; ii) The irreparable harm suffered by the plaintiff; and iii) The reasoning behind the ex parte issuance.

Answer 141

Under the “omnibus motion” rule, when a party makes a pre-answer motion raising an 12(b) MTD defense but omitting the others, the party may not make another pre-answer motion raising one of the omitted defenses that was available to the party when the earlier motion was filed. The party is deemed to have waived the excluded defenses.

Answer 142

Procedural, so governed by fed law.

Answer 143

The court can offer the plaintiff a remittitur (a reduction of the verdict amount) and grant a new trial on the condition that the remittitur was not accepted, but is not required to give the plaintiff that option.

Answer 144

The party will not be permitted to use the documents or witnesses that were not disclosed unless the nondisclosure was substantially justified or was harmless.

Answer 145

A plaintiff may dismiss an action without court approval or the agreement of the other parties prior to the service of an answer or summary judgment motion.