Civ Pro

Question 1

Discovery

Answer 1

1. Discovery may be had of any nonprivileged matter that is relevant to any party’s claim or defense.
2. It is not necessary that the information be admissible itself.
3. The discovery must be proportional to the needs of the case.

Question 2

Relating Back

Answer 2

When the SoL has run, a Defendant may be added, and the filing of the amended claim will “relate back” to the date of the original complaint when:

1. The amendment adding the new D arises out of the same conduct, transaction, or occurrence as the original complaint; and
2. Within 90 days after the filing of the complaint. and any additional time as the court may order, the newly added D received notice of the action such that it will not be prejudiced in maintaining its defense on the merits; AND
3. Knew or should have known that, but for a mistake concerning the proper party identity, the action would have been brought against it.

Question 3

Claim Preclusion

Answer 3

To apply, moving party must show:

1. Earlier judgment is a valid, final judgment on the merits;
2. The cases are brought by the same claimant against the same D (and in the same position);
3. The same cause of action is involved in the later (instant) lawsuit; and
4. The cause of action was actually litigated or could have been litigated in the prior action.

Question 4

Issue Preclusion (Collateral Estoppel)

Answer 4

For issue preclusion to apply it must be shown that:

1. The first case ended in a valid final judgment on the merits;
2. The issue on which collateral estoppel applies must actually have been litigated and determined in the previous case; and
3. The issue must have been essential to the judgment.

Issues must be identical in the instant case.

Question 5

Issue Preclusion (Collateral Estoppel): Mutuality

Answer 5

1. Some jurisdictions require mutuality.
2. Traditionally, given that a judgment could not be used against a non-party it was held that a non-party could not take advantage of the judgment either, by precluding a prior party from relitigating an issue determined against that party.
3. Most courts now allow a nonparty who is a D in a later case to use IP against a P who was a party to a prior action.
4. Although courts have been reluctant to allow a nonparty P to use IP against a D in a later case, a number of courts now permit it.
5. Regardless, the Court will consider the fairness in allowing the nonparty to assert the IP against a party to the prior litigation.

Question 6

Subject Matter Jurisdiction

Answer 6

1. SMJ refers to the courts ability to hear a type of case.
2. Lack of SMJ is not waived by failing to raise it at trial.
3. Lack of SMJ may be raised for the first time even on appeal.
4. There are two main basis for SMJ: diversity and FQJ.
5. Each claim asserted must have an independent SMJ,.
6. If claim does not satisfy SMJ, it may still be possible for it to be heard under supplemental jurisdiction.

Question 7

Diversity Jurisdiction

Answer 7

1. DJ requires complete diversity when suit is FILED and an amount in controversy (“AIC”) exceeding $75,000, excluding interest and costs.
2. Applies to alienage cases.
3. Complete diversity requires that every P be of diverse state citizenship from each D.

Question 8

Citizenship

Answer 8

1. Individuals is determined by domicile, where he intends to permanently return.
2. Corporation is citizen of every US state or foreign country in which it was incorporated, and the ONE US state or foreign country in which it has its principal place of business.
3. A corporation’s principal place of business is where the corps high level officers direct the corps activities.

Question 9

Amount in Controversy

Answer 9

1. The AIC is determined by P’s good faith claim stated in the complaint;
2. Multiple P’s MAY aggregate their claims against a SINGLE D ONLY when they are seeking to enforce a common or undivided interest.

Question 10

Supplemental Jurisdiction

Answer 10

1. Must be one claim in court that properly invokes diversity or federal question jurisdiction.
2. In a diversity case, claims that do not meet the AIC may invoke SJ if they arise from a common nucleus of operative fact as a claim that invoked DJ.
3. The use of SJ CANNOT be used to override the complete diversity requirement.
4. If it is a permissive counterclaim than it must meet the AIC requirement!

Question 11

Personal Jurisdiction

Answer 11

1. PJ refers to the ability of the court to exercise power over a particular D.
2. Traditionally, PJ is based on where an individual party is domiciled, presence in the state when served, or consent.

Question 12

Long Arm Statute

Answer 12

1. A long arm statute gives the court PJ over a D.
2. Look to see if the state has a LAS.
3. LAS must meet constitutional criteria.
4. Fed court will analyze PJ as if it were a state court in the forum.

Question 13

Long Arm Statute: Constitutional

Answer 13

1. Even if LAS applies, the exercise of PJ must still be constitutional.
2. To be constitutional there must be sufficient contacts with the forum state so as to not offend TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE.
3. The Court must assess: contact, relatedness, and fairness.

Question 14

Long Arm Statute: Contacts

Answer 14

1. Defendant must have purposely availed herself of the privilege of conducting activities in the forum state, thus invoking the benefits and protections of its laws.
2. The D must have foreseen that she would be haled into court in the forum state.
3. For specific jurisdiction the cause of action must arise from the D’s contacts with the forum.

Question 15

General Jurisdiction

Answer 15

1. Exists when D is at home in the jurisdiction.
2. Under general jurisdiction the action need not relate to the D’s contacts with the forum.
3. To be “at home” the corporation must have its principal place of business or be incorporated in the state.

Question 16

Fairness

Answer 16

1. Court will look to convenience to defendant
2. State’s interest
3. P’s interest in its own forum.

NOT A FACTOR IN GENERAL JURISDICTION

Question 17

Compulsory Joinder: Court Procedure

Answer 17

1. Compulsory joinder looks to see if the absentee should be and can be joined;
2. If the absentee cannot be joined, the next step is to determine whether the action should proceed without the absentee.

Question 18

Compulsory Joinder

Answer 18

An absentee should be joined where:

1. Complete relief cannot be accorded without absentees presence;
2. Absentee has an interest in the subject matter of the lawsuit and their absence will impair or impede ability to protect that interest OR would leave other parties at substantial risk of incurring multiple or inconsistent obligations.

Question 19

Compulsory Counterclaim

Answer 19

1. Is a counterclaim that arose from same T&C as one of P’s claims; and
2. If not pleaded in the litigation right to raise it in subsequent litigation is lost.

CC: Does not need to meet AIC.

PC: MUST MEET the AIC.

Question 20

Where is Venue Proper?

Answer 20

1. Any D resides, if all D resides in the same state;
2. A substantial part of the events or omissions giving rise to the claim occurred, or where a substantial part of the property that is in dispute is located; and
3. Where any D is subject to PJ, but only if there is no judicial district that satisfies 1 and 2.

Question 21

Transfer of Venue

Answer 21

A.

1. To have venue transferred the D must show that venue is improper; or
2. That venue should be transferred in the interests of justice, for the convenience of the parties and witnesses.

B.

1. When Venue is proper, transfer may be made to another district in which the action might have been brought; or
2. To which all parties have consented.

When venue is improper, transfer is to a proper venue that has SMJ and PJ over the parties.

Question 22

Change of Venue: When Venue is Proper

Answer 22

1. Even through venue is proper in a particular district, an action may be transferred to another district where the action might have been brought OR to which all parties have consented;
2. So long as there is PJ and SMJ.

Question 23

Venue: Inconvenience of Parties or Witnesses

Answer 23

Even where venue is proper, transfer is permitted when the parties or witnesses would be greatly inconvenience by the trial in the original forum.

Same SMJ and PJ rules.

Question 24

Discovery

Answer 24

1. A party may seek to obtain any non-privileged matter that is relevant to any claim or defense including any documentary evidence;
2. It is not required that the information itself be admissible at trial;
3. Proposed discovery must be proportional to the needs of the case.

Question 25

Physical and Mental Exam

Answer 25

1. May order an independent examination when the party's mental or physical conditions is in controversy. 2. In federal court the examination is only available on a showing of good cause.

Question 26

Judgment as a Matter of Law

Answer 26

1. Evidence viewed in the light most favorable to the party against whom the verdict would be directed; 2. Including all legitimate inferences in their favor and without considering the credibility of the witnesses; and 3. Is such that a reasonable juror could come to only one conclusion. If a party moves for a JMOL she may renew the motion 28 days after judgment rendered. Generally must have filed the motion first.

Question 27

Remand/Removal

Answer 27

1. If removal was not proper, the federal court must remand. 2. Defects in the removal process must generally be raised within 30 days of removal, but the lack of SMJ may be raised at any time EVEN ON APPEAL. 3. Removal not possible where there is no diversity. 4. Generally must file for removal within 30 days you know it is removable, and no more than 1 year after initiation of proceedings. All D's must joint in removal unless the claim is a federal claim that is separate and independent of the state law claim. Mechanics: 1. May be removed from state court to the federal court where it would have originally filed in fed court.

Question 28

Final Order Rule

Answer 28

A final order is one that disposes of all claims and parties and may be appealed.

Question 29

Appeal by Writ

Answer 29

A party may seek extraordinary writ of mandamus or prohibition as a means of showing of irreparable harm if the normal appeals route would be followed; (ii) movant must have a beneficial interest in the outcome. Use if normal route would be very cost prohibitive.

Question 30

Interlocutory Appeals Act

Answer 30

1. Review could be sought under IAA, which allows appeals when: 2. Trial judge CERTIFIES an interlocutory order involving a controlling question of law of which there is major disagreement of opinion and immediate appeal from the order may materially advance the ultimate termination of the litigation; and 3. Court of appeals chooses to hear it.