Civ Pro

Question 1

Subject Matter Jurisdiction

Answer 1

Two ways to obtain this;
Diversity
Federal Question

Question 2

SMJ - Diversity

Answer 2

Case has to be GREATER THAN $75,000; AND
There has to be complete diversity of citizenship i.e. All P’s must be from a different state as all D’s

Question 3

Greater than 75,000 key points

Answer 3

As long as some possibility it is worth that much
If court finds legal certainty not greater than $75,000; can dismiss
P can add other claims against a single D
If one P has a claim over $75,000, the other P’s can join against single D

Question 4

How to determine citizenship

Answer 4

For a person:
Where they intend to stay or currently live
For a corporation:
Any state where they are incorporate or they have their PPB

Question 5

Citizen of a state vs citizen of a foreign nation

Answer 5

Valid diversity

Question 6

Citizen of two or more foreign countries

Answer 6

No citizenship

Question 7

SMJ - Federal Question

Answer 7

P’s claim must be based on federal law or federal issue; AND
P’s claim must be plead in the complaint (Well-Pleaded Complaint)
Federal question cannot be a defense

Question 8

Supplemental Jurisdiction

Answer 8

Federal court is going to add a case or party who originally wouldn’t have had subject matter

Question 9

When will court allow supplemental jurisdiction?

Answer 9

If under Federal Question - If the new case or party derives from the common nucleus of facts
If under diversity - Has to be from same common nucleus of facts AND new party cannot destroy diversity

Question 10

If D is the one trying to add the claim or party

Answer 10

Generally allowed
REMEMBER - IN COURTS DISCRETION TO ADD

Question 11

If P is the one trying to add the claim or party

Answer 11

Generally not allowed
REMEMBER - IN COURTS DISCRETION TO ADD

Question 12

Personal Jurisdiction - Person is in state

Answer 12

Person is physically present in the state and is served there
If person is domiciled in the state
If person consents to be sued there

Question 13

Personal Jurisdiction - Person is out of state

Answer 13

First see if there is a long arm statute
Then look to see if minimum contacts
Minimum contacts re: Corporations
Does not offend traditional notions of fair play and justice
Did business purposefully avail itself of the state OR are their activities continuous and systematic with that state

Question 14

In Rem Jurisdiction

Answer 14

Trying to get jurisdiction over property

Question 15

Quasi in Rem

Answer 15

Tried to get jurisdiction over a person but couldn’t so going after property in order to satisfy a judgement against a person

Question 16

Where is Service of Process allowed (90 DAYS)

Answer 16

Only in the limits of that state where the district court sits; or
Anywhere else allowed by state law (long arm)

Question 17

Personal Service

Answer 17

Done by a non-party over the age of 18

Question 18

Substitute service of process

Answer 18

Can leave at house as long as left with someone of suitable age
First class mail is okay if D returns an acknowledgment form or waiver form
Can serve to an authorized agent
Any service of process that state law will allow

Question 19

Service of out of staters

Answer 19

Registered or certified mail
Newspaper is okay if no other reasonable way

Question 20

Service of a corporation

Answer 20

Can serve any officer or designated agent of the corporation or anyone of officially high status in the company

Question 21

Removal

Answer 21

Case is in state court but D wants to remove to federal
Removal will be okay when the case could have been in federal court in the first place
ONLY D MAY REMOVE CASE
if multiple D’s, all must consent to removal

Question 22

Removal Timing

Answer 22

D must file notice of removal within 30 DAYS of getting served with original complaint
If diversity case - Removal cannot happen more than one year after the start of lawsuit; D cannot remove to a state he is a citizen of

Question 23

Remand

Answer 23

P is trying to remand case back to where they filed if they believe improperly removed
BRING MOTION WITHIN 30 DAYS OF REMOVAL FILING
D has burden to show removal was okay in first place

Question 24

Venue

Answer 24

What is the proper forum for the case

Question 25

Three basic places where venue is generally allowed

Answer 25

District where any D resides and or if there are multiple D's, where all the D's reside as long as they all reside in that state; Any district where substantial parts of the event took place; If 1 or 2 dont apply, any district where D is reachable

Question 26

Civil Federal Jury Trial

Answer 26

Right to jury trial Needs to be at least 6 jurors, no requirement of 12 unless parties stipulate to a number Verdict must be unanimous unless stipulated Demand for jury trial must be made within 14 days of last pleading

Question 27

Jury Selection

Answer 27

Two ways to dismiss jurors For cause: Any bias or connection to the case or potential bias, juror must dismissed No limit Preemptory challenge: Each party has 3 of these No real cause CANNOT BE EXCLUDED BASED ON RACE OR GENDER

Question 28

Jury Instructions

Answer 28

Judge instructs jury about the law Party must object to jury instructions before jury retires

Question 29

Lack of SMJ

Answer 29

Motion can be raised ANYTIME

Question 30

Lack of PJ

Answer 30

Waived if D did not include in their answer or another 12b motion

Question 31

Improper Venue

Answer 31

Waived if D did not include in their answer or another 12b motion

Question 32

Insufficient Service of Process

Answer 32

Waived if D did not include in their answer or another 12b motion

Question 33

Failure to join a party

Answer 33

Can be raised before or at trial

Question 34

Failure to state a claim

Answer 34

Even if every fact is true, no recovery is plausible, insufficient facts Dismissal is WITH PREJUDICE unless court says otherwise CAN BE RAISE ANYTIME BEFORE OR AT TRIAL

Question 35

Motion to strike

Answer 35

Before responding to a pleading, WITHIN 21 DAYS OF SERVICE, can make a motion to strike for redundant, immaterial, or scandalous info

Question 36

Motion for a more definitive statement

Answer 36

Before responding to a pleading, make a motion if its vague or ambiguous

Question 37

Motion for Summary Judgement

Answer 37

No genuine dispute of a material fact Can make a motion until 30 days after discovery If denied, not appealable Moving party can use discovery and affidavits, and moving party bears the burden to show

Question 38

Motion for JMOL

Answer 38

D can make a motion after P’s case, or either party after both sides rest A reasonable jury would not have a legally sufficient evidentiary basis to find for the non moving party Evidence viewed in light most favorable to nonmoving party

Question 39

Renewed JMOL

Answer 39

Make a motion for jmol before case goes to jury, then case goes to jury. After case goes to jury and WITHIN 28 DAYS AFTER THE VERDICT, if judge agrees no reasonable jury could have found that way, judge may overturn the verdict

Question 40

Remittitur

Answer 40

A new trial could be ordered unless party agrees to a reduction of the award

Question 41

Complaint

Answer 41

Filing commences the statutory time SERVICE MUST BE WITHIN 90 DAYS Must include: 1. Basis for jurisdiction 2. Summary of the facts 3. Demand for relief

Question 42

Answer

Answer 42

MUST BE SERVED WITHIN 21 DAYS AFTER SERVICE OF COMPLAINT

Question 43

Compulsory Counterclaim

Answer 43

Arises out of the same transaction or occurrence as original claim Court already has supplemental jurisdiction

Question 44

Permissive counterclaim

Answer 44

Needs independent jurisdiction

Question 45

Permissive joinder

Answer 45

Multiple P's can join together to sue someone Must arise from same transaction or occurrence

Question 46

Compulsory Joinder - Necessary Party

Answer 46

Complete relief could not be afforded without having them joined in the party because it would impair their interest If joining them would ruin jurisdiction, case will still go forward

Question 47

Compulsory Joinder - Indispensable Party

Answer 47

If you don't join them, it would prejudice them If you join them and it would ruin jurisdiction, case would be dismissed

Question 48

Elements to a Class Action

Answer 48

Size - Case must be so large that individual claims would be impractical Common Question - Common among everyone Typicality - Claims of representatives have to be typical of all members Fair Representation - Reps fairly represent the class

Question 49

Intervention as of Right

Answer 49

Dont need court permission if you have an interest in the property or the transaction that is the subject of the suit, and it would impair or impede their ability to protect the interest

Question 50

Permissive Intervention

Answer 50

Claim or defense that is a common question of law or fact

Question 51

Statutory Interpleader

Answer 51

Nationwide service of process is allowed As long as any two claimaints are diverse, okay jurisdiction and only $500 at stake

Question 52

Rule Interpleader

Answer 52

Complete diversity is required No nationwide service and $75,000 amount required

Question 53

Third Party Interpleader

Answer 53

D believes someone else owes them money for all or part of the claim Look for contribution or indemnification

Question 54

Crossclaims

Answer 54

One party suing another Needs: 1. Same transaction or occurrence 2. One party must be asking for actual relief from the other party

Question 55

Work Product

Answer 55

Immune from discovery Any material prepared by counsel or someone working with counsel in anticipation of trial Will be privileged unless substantial need for the material and cannot without undue hardship obtain it with other substantial means

Question 56

Deposition

Answer 56

Written or Oral PArty or non party 10 IS THE LIMIT

Question 57

Interrogatory

Answer 57

Only to a party Written questions, answered in writing 25 IS THE LIMIT

Question 58

Default Judgment - Entry by Clerk

Answer 58

If P’s claim is “for a sum certain or a sum that can be made certain by computation,” the clerk may enter default judgment based on an affidavit by P showing the amount due.

Question 59

Default Judgment - Entry by Judge

Answer 59

If P’s claim is not for, “a sum certain or a sum that can be made certain by computation,” then only the judge may enter a default judgment on the claim. If the judge feels that an evidentiary hearing is needed to compute the amount, the judge is authorized to hold such a hearing. If the party against whom the default judgment is sought appeared in the action either personally or by a representative, then D is entitled to 7 days advance written notice

Question 60

2 Dismissal Rule

Answer 60

First voluntary dismissal is without prejudice. A second voluntary dismissal is with prejudice.

Question 61

Claim Preclusion and Issue Preclusion

Answer 61

Follow rule of court that issued the first judgment or fact-finding: The second court must always follow the claim or issue preclusion rules of the first court that issued the prior judgment or finding-of-fact whose effect is in question.