Civ Pro

Question 1

What is the proper procedure for removal?

Answer 1

A case is properly removed from state to federal court when (1) all defendants
agree to the removal, (2) within 30 days of the initial service or summons, the
removing party files a notice of removal with the federal court along with a copy
of all materials from the state court proceedings, and (3) the removing party
serves a copy of the notice of removal on all parties and files it with the state
court.

Question 2

Who can remove?

Answer 2

Defendants may remove claims that could have been filed in fed court (whether via FQ or diversity SMJ) to the fed court embracing the state court where claim was originally filed (regardless if venue proper)

Question 3

What is removal?

Answer 3

Removal transfers a case from state trial court to federal court; if done improperly, fed court will remand back to state court

Question 4

When may parties be joined?

Question 5

When must parties be joined?

Question 6

What is joinder?

Question 7

Methods to establish personal jurisdiction

Answer 7

In personam
In rem
Quasi in rem

Question 8

What is personal jurisdiction?

Answer 8

Court’s power over the defendant(s), based on law of state in which fed court located

Personal jdx via state statute + minimum contacts + notice

Question 9

How can a federal court establish subject matter jurisdiction?

Answer 9

Federal question
Diversity
Supplemental

Question 10

What is federal question jurisdiction?

Answer 10

Federal courts may hear cases arising under federal law (Constitution, federal legislation, etc.); the defendant must have already violated a federal question (not anticipatory) on the fact of the complaint

Question 11

What is diversity jurisdiction?

Answer 11

Under 28 USC 1332, federal courts have diversity jurisdiction over state law claims when (1) complete diversity of citizenship across the v, and (2) amount in controversy exceeds $75K (MUST be state law claim!!!)

Question 12

What is supplemental jurisdiction?

Answer 12

Used to get claims (not cases) into a federal case when those claims can’t use FQ or diversity SMJ on their own, and they arise from “common nucleus of operative fact” (*same transaction or occurrence) as an original jdx claim (whether diversity or FQ) such that the claims should be tried together

Question 13

Supplemental diversity jurisdiction

Answer 13

In diversity cases, claims by plaintiffs generally cannot invoke supplemental jdx, except when there are multiple plaintiffs and the claim by one of them doesn’t meet the amount in controversy requirement; for defendants and other non-plaintiffs, the limit(ation) does not exist!!!!!!

Question 14

Analysis for supplemental jurisdiction

Answer 14

1. Does the claim to be joined satisfy the common nucleus of operative facts test?
2. If yes, did the underlying case get into federal court under FQ or diversity jdx?
   3a. If FQ, supplemental is ok.
   3b. If diversity, apply limitation and its exception for supplemental diversity jdx

Question 15

Court discretion over supplemental jurisdiction claims

Answer 15

Court may decline claim even if it meets supplemental jdx requirements if state law claim complex/state law issues would predominate case, or if the claim on which federal SMJ is based on is dismissed early on

Question 16

When may claims be joined?

Answer 16

Multiple plaintiffs may join their claims in a single action against the same defendant or defendants when (1) those claims arise out of the same transaction or occurrence, and (2) any question of law or fact common to all plaintiffs will arise in the action

Question 17

When must claims be joined?

Question 18

Mandatory counterclaims

Answer 18

All counterclaims a defendant has against a plaintiff arising out of the same transaction or occurrence must be brought in the original action, or the defendant waives their right to pursue these counterclaims in future action.

Question 19

When can a plaintiff combine their claims to meet amount in controversy requirement?

Answer 19

-A single plaintiff may aggregate all her claims against a single defendant, whether claims related or not, to exceed $75K
-Several plaintiffs may aggregate their claims against a single defendant if seeking to enforce a single title/right
- if two plaintiffs’ claims arise out of the same transaction/occurrence against a single diverse defendant and one exceeds $75K, the other may get in under supplemental jdx if it’s less than $75K

Question 20

What constitutes proper notice/service of process?

Answer 20

Notice is reasonably calculated to apprise interested parties of action; within 90 days of filing; by personal or substituted service, service on agent, or by methods permitted by law of state where fed court sits or where service is made, or by waiver of service

Question 21

What is subject matter jurisdiction?

Answer 21

Court’s power over plaintiff claim(s)

Question 22

What law applies in federal court?

Answer 22

In diversity cases (state law claims) do the Erie Doctrine analysis to determine whether state or fed law applies.

Procedural federal law (FRCP, FRE, etc.) applies in federal court.

State law on substantive issues applies in federal court.

Question 23

What are considered substantive issues to which state law will apply in federal court?

Answer 23

• Conflict/choice of law rules
• Elements of claim/defense
• Statutes of limitation (but which state’s SoL depends on forum state’s conflict of law rules)
• Rules for tolling SoL
• Standard for granting new trial bc jury’s damages award was excessive/inadequate
• Factors to consider if issue other than above 5: Whether state law would be outcome determinative, who has the greater interest in having their rule applied, and avoiding forum shopping

Question 24

What constitutes proper venue?

Answer 24

In (1) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (2) the district in which a substantial part of the events or omissions giving rise to the claim occurred. If no district satisfies (1) or (2), then a district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

For removed cases - the district embracing the state court where action was filed.

Question 25

When is transfer permitted?

Answer 25

One fed court can transfer a case to another fed court, so long as the transferee is a proper venue and has personal jdx over defendant (without defendant’s waiver).

Improper venue is waived if not in first responsive pleading, however a court may transfer anytime (so long as no prejudice to one party) if justice so requires.

Question 26

Transfer from proper venue

Answer 26

If original district is proper venue, court can order transfer based on convenience of parties/witnesses and in the interests of justice.
- Burden is on person seeking transfer
- Transferee must apply choice of law rules of transferor

Question 27

Effect of forum selection clause

Answer 27

If provision exists where parties agree to litigate in particular court, defendant may seek to enforce clause through motion to transfer so long as clause is reasonable.
- Only public factors considered for transfer
- Transferee will apply its own choice of law rules

Question 28

Transfer from improper venue

Answer 28

If original district is improper venue, court may order transfer in the interest of justice* or dismiss.
- In diversity cases, transferee will apply its own choice of law rules

Question 29

What is in personam jurisdiction?

Answer 29

forum has personal jdx over defendant

Question 30

What is in rem jurisdiction?

Answer 30

forum has power to adjudicate parties’ rights to item of property (defendant not personally bound)

Question 31

What is quasi in rem jurisdiction?

Answer 31

If property related to claim, forum can adjudicate parties’ rights to property bc property is in forum and there is a close connection b/n case and property provides minimum contacts; If property unrelated to claim, court can attach property to bring defendant into forum on unrelated claim

Question 32

Types of personal jurisdiction

Answer 32

General and specific personal jurisdiction

Question 33

How can a court establish personal jurisdiction over a defendant?

Answer 33

D present in forum state and personally served with process therein
D domiciled in forum state
D conducts systematic and continuous business in forum state
D consents to jurisdiction
D commits an act covered by state’s long arm statute

Question 34

What makes personal jurisdiction constitutional?

Answer 34

D has minimum contacts with forum state –> jdx is fair and reasonable, plus notice

Question 35

What are sufficient minimum contacts to establish personal jurisdiction?

Answer 35

Did defendant purposefully avail himself (voluntary act) of state’s benefits and protections? And, was it foreseeable that defendant could be sued in state?

Question 36

What is general personal jurisdiction?

Answer 36

If plaintiff’s claim is unrelated to defendant’s contacts in the state (no specific PJ), defendant must be “at home” in the forum state in order for court to exercise personal jurisdiction

Question 37

What is specific personal jurisdiction?

Answer 37

If plaintiff’s claim arises from or is related to defendant’s contacts with the forum state, court has specific personal jdx over defendant as to that claim

Question 38

What makes personal jurisdiction constitutional?

Answer 38

Minimum contacts + relatedness + fairness

Question 39

When and how is fairness considered re personal jurisdiction?

Answer 39

In specific personal jurisdiction cases, court considers:
- whether forum is so gravely difficult and inconvenient so as to put defendant/witnesses at severe disadvantage
- forum state’s legitimate interest in providing redress for its resident
- plaintiff’s interest in obtaining convenient/effective relief at home/where injured
-

Question 40

How is citizenship determined over unincorporated businesses/LLCs?

Answer 40

Citizenships of its members

Question 41

Forum non conveniens

Answer 41

Applies when there is another court (in a different judicial system, so court can’t transfer) that is the center of gravity for the case; court will stay or dismiss so plaintiff can sue in the other court

Question 42

How is citizenship determined over individuals?

Answer 42

Domicile (must intend to remain; can only have one domicile)

Question 43

How is citizenship determined over corporations?

Answer 43

Principle place of business (one state) or where incorporated (every state/country)

Question 44

Relatedness requirement for personal jurisdiction

Answer 44

Establishes whether court has specific or general personal jurisdiction over defendant

Question 45

Which cases cannot be removed?

Answer 45

If fed SMJ based on diversity - where any defendant is a citizen of the forum state, or if case was filed in state court over a year prior

Question 46

What if a case was improperly removed to federal court?

Answer 46

The plaintiff may file a motion for remand, or the court may order remand, back to state court; if remand based on fed court’s lack of SMJ, no time limit to remand, but if based on something else, must be within 30 days

Question 47

What must a complaint include?

Answer 47

• Grounds for SMJ
• Short and plain statement of claim showing plaintiff entitled to relief
• Demand for relief sought

Question 48

Which defenses are waived if not included in an initial responsive pleading?

Answer 48

Lack of personal jurisdiction
Improper venue
Improper process
Improper service of process

Question 49

Which defenses can be raised after an initial responsive pleading?

Answer 49

Failure to state a claim on which relief can be granted
Failure to join an indispensable party
Lack of SMJ

Question 50

What if a defendant’s motion to dismiss under Rule 12 is denied?

Answer 50

Defendant must file her answer no later than 14 days after notice of denial

Question 51

Affirmative defenses

Answer 51

Statute of limitations
Statute of Frauds
res judicata
self-defense
All rule 12(b) defenses

Waived if not asserted in defendant’s answer

Question 52

Factors considered as to “whether justice so requires” an amendment out of time

Answer 52

Length of delay
Prejudice to other party
Futility of amendment

Question 53

What is “relation back?”

Answer 53

It means you treat an amended pleading as though it was filed when the original pleading was filed, so as to avoid a SoL problem

Question 54

How may a party join a claim not originally asserted after SoL has run?

Answer 54

An amended pleading relates back if the pleading concerns the same conduct/transaction/occurrence as original pleading

Question 55

How may a party change a defendant after SoL has run?

Answer 55

The amendment relates back if it (1) concerns the same conduct/transaction/occurrence as the original, (2) defendant had such knowledge of the case such that she will avoid prejudice, and (3) defendant knew/should have known that but for a mistake she would have been named originally

Question 56

Supplemental pleadings

Answer 56

set forth things that happened after initial pleadings were filed; require a motion (no right)

Question 57

When must a complaint be served to the other party?

Answer 57

Within 90 days of filing

Question 58

What begins the statute of limitations in a case?

Answer 58

When the complaint is filed

Question 59

When is the opinion of an expert sought in anticipation of litigation discoverable?

Answer 59

Only when the expert is expected to testify as a witness at trial. The opinion of a non-testifying expert is nondiscoverable regardless if retained formally or not, absent a showing of exceptional circumstances –> impracticable to obtain opinions/facts by other means

Question 60

Where is a business deemed to reside for venue purposes?

Answer 60

In any judicial district in which the defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.

Question 61

When may a clerk enter a default judgment?

Answer 61

Following a default by a defendant, the clerk may sign and enter a judgment for the amount set forth in the plaintiff’s affidavit if the defaulted defendant is not an infant or an incompetent and plaintiff’s claim is for a sum certain and the default was entered because the defendant failed to appear.

Question 62

When may an ex parte temporary restraining order be entered?

Answer 62

If the moving party gives specific facts in an affidavit/verified complaint to establish that immediate and irreparable injury will result before adverse party can be heard in opposition. Moving party must (i) certify in writing all efforts she made to give notice of the hearing to the adverse party and the reasons why notice should not be required; and (ii) provide some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrongfully enjoined or restrained.

Question 63

Impleader

Answer 63

A defendant/third party defendant may implead/bring in a nonparty if the nonparty is/may be liable to the impleading party for any part of a judgment that plaintiff may recover against it.

Question 64

Are interlocutory orders appealable?

Answer 64

Generally no, because they are not final.
However, Interlocutory orders denying an injunction are appealable.

Question 65

Judgment as matter of law

Answer 65

May be filed at any time before submission to the jury; moving party must specify in its motion the judgment sought and the law and facts on which the party is entitled to judgment, and the nonmoving party must have been heard on the issue.

Question 66

When is review under the Interlocutory Appeals Act available?

Answer 66

When (i) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an appeal would materially advance the conclusion of the case, and (ii) at least two appellate court judges agree to hear the appeal.

Question 67

Appeal an error in jury instructions

Answer 67

To reserve right to appeal an error in instruction given/not given, a party must object on record before instructions are given. If adequately preserved, instructions are reviewed using abuse of discretion standard. If objection is not made (and therefore not preserved for full appellate review), court’s review is limited to considering whether there was a plain error in the instruction that affected substantial rights (plain error standard)

Question 68

Standards of review

Answer 68

De novo
Abuse of discretion

Question 69

When is removal permitted despite lack of subject matter jurisdiction?

Answer 69

Only in a diversity action where the amount in controversy is satisfied but diversity doesn’t exist at commencement of case, if nondiverse parties are thereafter dismissed, requirements for diversity jurisdiction are then present, and not more than one year has passed since the case was commenced in state court.