Civ Pro

Question 1

Forum-Defendant Rule

Answer 1

Removal is improper if:
1. SMJ solely arises from diversity jdx; and
2. any D is from the state which the claim is filed in

*this does not apply if the claim is a fed Q issue

Question 2

Does Supplement Jdx only apply if there is diversity?

Answer 2

NO – applies to both Fed Q and Diversity

1. claims share
2. common nucleus of operative fact
3. as claim w/in court’s original jdx

Question 3

When does the “100-mi Bulge Rule” Apply?

Answer 3

1. D added to suit via impleader or required joinder
2. Served w/ process w/in 100 miles of court

**Rule does not apply to D’s in the OG complaint!

Question 4

When will a court agree to transfer venue?

Answer 4

OG suit could have been filed in that district

1. Convenience of parties
2. Witnesses & E in other state
3. Interest of justice to any judicial district that
   -A. where suit could have been originally brought; or
   -B. to which all parties have consented

Question 5

Venue

Answer 5

Case may be brought in any fed district where:

1. any district where a D resides, if all Ds reside in same state
2. substantial party of events giving rise to claim occurred in the district, or if property is located there
3. any D is subject to court’s PJ (if 1+2 do not work)

Question 6

What must a court do when venue is improper?

Answer 6

District court must either:

1. Dismiss case
2. Transfer case to proper venue (if interest of justice requires)

Question 7

Relation Back

FRCP 15

Answer 7

GR: amended complaint filed after SOL expires is prohibited, unless it relates back

Applies to (1) new claim or (2) changes in party due to mistake

Must arise out of STO

Question 8

Relation Back: New Claims

Answer 8

Amended complaint post SOL relates back to OG complaint if:

1. SOL allows it; or
2. new claims arises from STO as OG pleading

Question 9

Relation Back: Changing Ds

Answer 9

Amended complaint post SOL relates back to OG complaint if:

1. SOL allows it; or
2. STO as OG pleading and
   - new party has notice of suit w/in 90 days of OG filing
   - new party knew (should have known) they would be sued but for mistake concerning party’s ID

***IF changing D is not due to mistake, FRCP 15 does not apply

Question 10

What happens when a party does not object to the jury instructions, but then post-verdict argue that the instructions were plain error

Challenge error in jury instruction

Answer 10

Depends on if the party’s substantial right was affected by error –> if so, then COA can hear the appeal, which is reviewed only for plain error

If no sub right affected –> COA will not hear appeal

Question 11

Jury Instruction Objections

FRCP 51

Answer 11

1. must distinctly state objection & grounds on record
2. must object at court-appointed time or promptly after learning of proposed instruction

NOTE: failure to objection won’t 100% bar appeal. If there was a substantial error, COA will review the plain error

Question 12

Voluntary Dismissal

Answer 12

When P dismisses a suit

Dismisses w/o leave when:
1. notice of dismissal filed before D serves answer or 12motion
2. all parties sign stipulation of dismissal

Usually w/o prejudice, unless:
1. P previously dismissed fed/state claim based on the same claim; or
2. notice or stipulation states otherwise

Question 13

Involuntary Dismissal

Answer 13

When D moves to dismiss (usually w/ prejudice) suit when P fails to:

1. prosecute own action; or
2. comply w/ court rules/order

Can move to dismiss via:
1. pre answer motion
2. judgment on pleadings
3. SJ

Question 14

When is an involuntary dismissal w/o prejudice

Answer 14

1. court order says so
2. dismissal based on lack of jdx, improper venue, failure to join required party

Question 15

Compuslory Counterclaim

Answer 15

claim that:

1. arises from STO as OP’s claim; and
2. do not have to add another party that will destroy jdx
3. must be asserted in pending suit
4. otherwise it is waived

So even if the parties are not diverse, but OG party has jdx, the court will extend supplemental jdx over the other new party

Question 16

Permissive Counterclaim

Answer 16

Claim that:

1. may be asserted
2. in pending suit

failure to assert does not waive the claim

Question 17

Judgment on the Pleadings + when can you file?

Answer 17

Pre trial motion to get rid of case!

pleadings, attached exhibits + matters of public record show (1) no genuine despite of material fact and (2) movant entitled to JMOL

Timing: once all pleadings have been filed. Usually after complaint and answer is filed, but if there are other claims, then after those are done!

Question 18

6 Types of Pre-Trial Motions

Answer 18

pre-trial motions to get rid of case

1. SJ
2. Default Judgment
3. Judgment on the Pleadings
4. Voluntary Dismissal
5. Involuntary Dismissal
6. Pre-Answer Motion

Question 19

To which motions must a court DENY deadline extensions?

Answer 19

RJMOL
Amended or additional findings
New trial
Alter or amend judgment
Relief from judgment

Question 20

Final Judgment on the Merits

Answer 20

judgment that is based on the substantive elements of a claim or defense––rather than on technical or procedural grounds

Dispute is fully resolved, all court needs to do is enforce

Question 21

Standard to amend a final pretrial order

Answer 21

court may amend/modify the order only to prevent manifest injustice

Question 22

Temporary Restraining Order

Answer 22

preserves the status quo of the parties until opp to hold a full hearing on whether to grant a preliminary injunction. TRO has immediate e ffect + lasts max 14

TRO can be issued w/o notice if movant provides:

1. affidavit/certified complaint of immediate + irreparable harm; AND
2. Atty certifies any effort made to give notice + why notice should not be required.

Movant needs to give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully restrained.

Question 23

Preliminary Injunction

Answer 23

form of relief issued prior to a full hearing on the merits, but only upon notice to the ∆ and a hearing on whether the injunction should issue

P must show:
1. He is likely to succeed on the merits;

2. He is likely to suffer irreparable harm in the absence of relief;
3. The balance of equities is in his favor; and
4. The injunction is in the best interests of the public.

Question 24

What is an atty certifying when signing the discovery requests

Answer 24

the atty certified to the best of their knowledge that:

1. Disclosure is complete and correct
2. Request, response or objection is:

2.(a) Consistent with existing law or supported by non frivolous argument to reverse existing law

2(b) Not made for any improper use (harras, undue delay)

2(c) Reasonable & not unduly burdensome or expensive

Question 25

Violations of discovery rules –sanctions

Answer 25

violation, w/o substantial justificaton, requires the court to impose appropriate sanctions on the signer, party, or both

Sanctions may include:
1. reasoanable expenses
2. atty fees

Question 26

What must be included in an aswer

Answer 26

1. admissions/ denial
2. motions that have not already been waived
3. affiramtiev defenses
4. compulsory counterclaims

Question 27

Compulsory Counterclaims

Answer 27

Must be asserted in answer or else waived

1. arise from STO as earlier claim; and
2. do not require adding another party who the court does not have jdx over

Question 28

When is standard review of De Novo used?

Answer 28

pure legal issues

ex: conclusions of law; content of jury instructions

Question 29

When is standard review of Clear Error used?

Answer 29

Factual issues in bench trials

• credibility of W
• factual determination s

Question 30

When is standard review of Substantial E used?

Answer 30

factual issues in jury trials