Civ Pro

Question 1

When is action deemed commenced for SOL purposes?

Answer 1

In a federal question case, the action is deemed commenced for statute of limitations purposes when the complaint is filed with the court. In diversity cases (not federal quest ion cases), the Supreme Court has held that the state rule for determining when the action is commenced applies

Question 2

Review under the Interlocutory Appeals Act is discretionary with the court and may be available when:

Answer 2

-(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 3

As a general rule, a notice of appeal must be filed with the district court within ____ days from the entry of judgment.

Answer 3

30 days

Question 4

When a court grants summary judgment on some but not all of the claims in an action, the court’s order is not final and thus not appealable unless…

Answer 4

The court expressly determines that there is no just reason to delay entry of judgment and thus provides that the SJ is a final judgment.

Question 5

Claim Preclusion (res judicata) requirements

Answer 5

TO DETERMINE WHICH PRECLUSION RULES APPLY, THE SECOND COURT WILL LOOK TO THE LAW OF THE FORUM THAT ENTERED THE FIRST JUDGMENT.

(1) Same claimant against the same defendant
(2) Case 1 must have ended on valid, final judgment on the merits (“on the merits” if with prejudice AND not based on lack of jurisdiction, improper venue, or failure to join an indispensable party).
(3) Case 1 and Case 2 must be the “same claim”: under majority view, claim = any right to relief arising from a transaction or occurrence; under minority, property rights versus personal safety rights treated as separate claims.

Question 6

Issue Preclusion (collateral estoppel) requirements

Answer 6

(1) Case 1 ended in valid, final judgment on the merits
(2) Same issue was actually litigated and determined in Case 1
(3) Issue was essential to judgment in Case 1, i.e. the finding on the issue is the basis for the judgment
(4) Due process factor - issue preclusion can only be used against somebody who was a party to Case 1 or in privity with a party.
(5) Mutuality rules - by whom is preclusion used? Nonmutual defensive issue preclusion (preclusion used by someone who wasn’t a party in Case 1 and is now defendant in Case 2). Nonmutual offensive issue preclusion (preclusion used by someone who wasn’t a party in Case 1 and is now plaintiff in Case 2). For offensive, apply fairness factors.

Question 7

Requirements for removal to federal court

Answer 7

Federal court must have original jurisdiction (FQ or diversity) over P’s claim. If diversity, the D cannot be a citizen of the state where case was originally filed! If multiple Ds, all must consent to removal. Notice filed in fed court within 30 days of initial complaint or summons.

NOTE: Only a D has the power to remove a case from state to federal court. A D’s counterclaim does not transform a P into a D for removal purposes.

Question 8

Constitutional test for personal jurisdiction

Answer 8

(1) Contact = “minimum contacts” between the D and the forum state. Two factors: 1) purposeful availment, i.e. voluntary act to reach into state; 2) foreseeability - is it foreseeable that D could be sued in the forum?

(2) Relatedness - does P’s claim arise from or relate to D’s contact with the forum?
-If yes, specific PJ and we move on step 3.
-If no, must test for general PJ: D either must be at home (domicile) in the forum or must have registered to do business in the state and have appointed an agent for service of process there. If you’re not at home in State X but get properly served while being there voluntarily, PJ applies.

(3) Fairness (Specific PJ only): burden on the D and witnesses; state’s interest; P’s interest.

Question 9

Supplemental Jurisdiction requirements

Answer 9

New claim must share a “common nucleus of operative fact” with the claim that already satisfied federal SMJ

Limitation: in diversity cases, claims by Ps generally cannot invoke SJ. But does not apply when there are multiple Ps and the claim by one of them does not meet the AIC requirement. So SJ applies there as long as test above satisfied.

Question 10

Erie Doctrine

Answer 10

(1) If there is a federal law (e.g. statute, FRCP, Const.) on point that directly conflicts with state law, apply the federal law as long as it’s valid.

(2) If no federal law on point, state law applies if the issue to be decided is substantive. Five issues are clearly substantive: conflict (or choice) of law rules; elements of a claim or defense; SOL; rules for tolling SOLs; the standard for granting new trial b/c jury’s damages award was excessive or inadequate. If not one of these 5, balancing test: outcome determinative (if applying/ignoring state law would change outcome, should probably use state law); balance of interests; avoid forum shopping.

Question 11

The P may lay venue in any district where…

Answer 11

-All Ds reside or
-A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (can be multiple)

But if D removes case to federal court, venue is placed in the federal court where the action is pending (so doesn’t matter if it’s proper under general statute).

D may waive proper venue, i.e. agree to improper venue.

Question 12

Joinder w/ multiple Ps or Ds

Answer 12

Claims by multiple Ps or against multiple Ds must: (1) arise from the same transaction or occurrence; and (2) raise at least one common question of law or fact.

Question 13

An absentee is a “necessary” party if…

Answer 13

Complete relief cannot be accorded among those already parties and/or

Absentee claims an interest in the subject matter and disposition of the action may, as a practical matter, impair or impede his ability to protect that interest or leave the present parties at substantial risk for double or inconsistent liability

Question 14

Initial required disclosures

Answer 14

The following must be disclosed to other parties within 14 days of the Rule 26(f) conference:

(1) Identities of persons w/ discoverable info that the party may use to support her claims or defenses

(2) Documents and things that the party may use to support he claims or defenses (if in party’s control)

(3) Computation of relief, supported by docs or ESI

(4) Insurance coverage

Basically we don’t want surprises at trial re: substantive evidence. But these disclosure reqs don’t apply to something like impeachment evidence.

Court has wide discretion to impose various sanctions on a party who fails to make required disclosures.

Question 15

Expert disclosures

Answer 15

Required only if witness may provide testimony at trial.

Question 16

Scope of discovery standard

Answer 16

A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case. Information need not be admissible to be discoverable.

Question 17

An applicant for a preliminary injunction must show…

Answer 17

-She is likely to suffer irreparable harm if the injunction is not issued.
-She is likely to win on the merits of the underlying case.
-The balance of hardship favors her (i.e. threatened harm to applicant outweighs harm to other party if the injunction is issued).
-The injunction is in the public interest.

Question 18

The clerk of the court can enter a default judgment if…

Answer 18

-The D has made no response at all.
-The claim itself is for a sum certain in money.
-The P gives an affidavit of the sum owed.
-The D is not a minor or incompetent.

If any of these is not true, P must apply to the court for the default judgment.

Question 19

A party may use supplemental jurisdiction to have her claim heard in federal court if the claim meets the “nucleus of operative fact” test unless the claim:

Answer 19

(1) is asserted by a P
(2) in a diversity case
(3) and is asserted against a citizen of the same state as P

Question 20

FRCP Rule 11

Answer 20

When the lawyer or pro se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry:
-The paper is not for an improper purpose
-The legal contents are warranted by law or a nonfrivolous argument for a law change; and
-The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation.

Question 21

These Rule 12(b) defenses are waived if not put in the first Rule 12 response (motion or answer):

Answer 21

-A lack of PJ
-Improper venue
-Improper process
-Improper service of process

Question 22

We determine the residence for proper venue purposes at the time…

Answer 22

…the action is filed. So if a defendant properly moves after an accident that gave rise to a suit but before the suit is filed, the new home state is counted for venue purposes.

Question 23

Timing deadlines for answers to service of process

Answer 23

Although a defendant typically must serve an answer or other appropriate response within 21 days after being formally served with process, a defendant who waives service of process is allowed 60 days from the date on which the plaintiff mailed the summons and complaint in which to serve a response.

Question 24

TRO rules (+ notice requirements)

Answer 24

A temporary restraining order may be granted by a court when it is necessary to prevent irreparable injury to a party, and the injury will result before a preliminary injunction hearing can be held.

As a general rule, notice of the hearing for the issuance of the order must be given before it is issued.

Exception: a court may grant an ex parte temporary restraining order without notice of the hearing to the adverse party if the moving party does the following: (i) gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition; (ii) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and (iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained.

Question 25

Two Ps can join their two claims in the same action if...

Answer 25

(1) the two claims arise from the same transaction or occurrence (2) share at least one common question of law or fact

Question 26

Compelling discovery (Rule 37)

Answer 26

If a party fails to provide discovery or provides incomplete discovery, including disclosures and answers to interrogatories and deposition questions, the other party may move to compel discovery. However, a motion to compel must certify that the moving party has made a good faith attempt to confer with the opponent to obtain the discovery without court intervention. The certification (and an actual attempt at resolving the discovery dispute without court intervention) is a prerequisite to an award of reasonable expenses (which includes attorneys' fees).

Question 27

Waiving of errors during depositions

Answer 27

Errors of any kind which could have been obviated if promptly presented are waived unless seasonable objection is made at the time of taking the deposition (this applies to form of questions, oath, conduct of parties, etc.).

Question 28

Depositions may be used as evidence in trial if...

Answer 28

...when the deponent is unavailable for trial.

Question 29

Pretrial conference (judge’s discretion)

Answer 29

During pretrial conferences, the judge has wide discretion over several issues, including: -establish a time limit for each party’s presentation of evidence -limit each party’s use of expert testimony -rule on the admissibility of evidence However, the judge may not decide which party has the burden of proof.

Question 30

Special verdict

Answer 30

In a jury trial, the judge has complete discretion to decide which verdict to use- general verdict, general verdict with answers, or special verdict. A special verdict requires that (1) the jury answer questions in writing on specified factual issues and (2) the judge apply the law and enter a judgment consistent with those answers.

Question 31

Transfer

Answer 31

Goes from one court to another in the same system (e.g. from one federal district to another). Original court = transferor; one in which case is sent = transferee. The transferee must be a proper venue and must have PJ over the D (must be true even if D waives PJ). Statute 1 (original court is a proper venue): -Transfer from a proper venue: Convenience of the parties and witnesses in the interests of justice, i.e. where is the evidence? Where are the witnesses located? -Effect on choice of law → transferee court usually must apply choice of law rules of transferor court. -No strict time limit on motions to transfer from one proper venue to another. -Forum selection clauses enforced in federal court as long as they’re reasonable. Unless public interest factors say otherwise (unlikely). -When the transfer happens to enforce FSC, the transferee court applies own choice of law rules. Statute 2 (original court is an improper venue): -Court may transfer if in interest of justice or dismiss. -COL rules of original improper venue won’t attach because we don’t want P to benefit from decision to lay improper venue. -Must be raised in a D’s first response (either in its timely motion to dismiss before the answer or in the answer).

Question 32

Cross claim

Answer 32

As a general rule, a party may assert a crossclaim against a co-party only if the crossclaim arises from the same transaction or occurrence as the original action or a counterclaim. -Such claims are permissive, in that the crossclaim will not be barred at the conclusion of the pending litigation.

Question 33

Service of process proper methods

Answer 33

-Personal service (in-hand delivery) and can be anywhere. -Substituted service (serving a substitute for the D) → can only be at D’s usual abode on someone of suitable age and discretion who resides there. -Service on agent. -State law methods (where court sits and where service is to be made) as long as they're reasonably calculated to give the defendant notice of the action.

Question 34

Stay of enforcement/execution

Answer 34

Most final judgments are automatically stayed for 30 days, i.e. judgment cannot enforced or executed during the time in which post-trials motions or a notice of appeal can be filed. Exception: an automatic stay does NOT apply to orders (1) granting an injunction or receivership or (2) directing an accounting in a patent-infringement action.

Question 35

Right to a jury trial

Answer 35

When D removes case to fed court, a party preserves the right to a jury trial by (1) demanding a jury in state court before the removal or (2) serving a jury trial demand within 14 days after filing or being served with the notice of removal, so long as all necessary pleadings had been served before removal.

Question 36

Final-judgment rule

Answer 36

Appeal is only allowed after final judgment (a decision that fully resolves a dispute on the merits and leaves nothing for the court to do but enforce the judgment). If multiple claims/parties, final judgment as to fewer than all claims/parties appropriate if court expressly determines there is no justifiable reason for delay. Exceptions include interlocutory appeals concerning: -Injunctions -Certification by district court -Class action certification -Bankruptcy -Mandamus For exception to apply, trial court must certify an interlocutory appeal by stating in a written order that: -There is a substantial difference of opinion on the controlling question of law AND -An appeal may materially advance the ultimate termination of the litigation. If the district court enters the order, the party seeking an appeal must then apply to the appellate court within 10 days after issuance. Appellate court will then decide whether to hear the appeal. Collateral order doctrine (also an exception): an interlocutory order will be characterized as final and appealable if: -(i) The order conclusively resolves an important issue -(ii) That issue is separate from the merits of the underlying claim -(iii) The order cannot be effectively reviewed on appeal from a final judgment (basically it'd be too late) -E.g. denying a gov't official immunity

Question 37

Implied causes of action

Answer 37

Permit the recovery of damages against a fed official: -4A claim for unlawful search and seizure -5A claim for sex-based employment discrim -8A claim for failure to provide medical treatment

Question 38

Interrogatories

Answer 38

Written questions served by one party on another party that may inquire about any facts, opinions, and contentions within the scope of discovery. One of the primary purposes is to ascertain facts and info that may lead to other evidence + simple and inexpensive.

Question 39

Venue when suing federal employee or officer

Answer 39

If sued in individual capacity --> normal venue rules. If sued in official capacity --> normal venue rules + where P resides.

Question 40

Interpleader

Answer 40

Available in federal court when multiple persons claim an interest in the same property. Allows the possessor of the stake to avoid multiple liability by joining the claimants to litigate the stake's ownership among themselves. Two types of interpleader with different SMJ requirements: -(1) Rule interpleader - either FQ or normal diversity (complete diversity + >75k) -(2) Statutory interpleader - requires AIC of at least $500 and minimal diversity b/w the claimants, i.e. at least two claimants must be citizens of different states.

Question 41

Relief from final judgment

Answer 41

A party can seek extraordinary relief from a final judgment within ONE YEAR from the entry of final judgment if: -Judgment was due to mistake, inadvertence, surprise, or excusable neglect by the parties or the court (NOT THE JURY) -Party discovered new evidence that existed at the time of trial and could not have reasonably been discovered in time to move for a new trial -The opposing party engaged in misrepresentation, misconduct, or fraud.

Question 42

Altering jury's award of damages

Answer 42

Remittitur: D's request to reduce jury award of excessive damages. -P must be offered choice b/w reduced damages or a new trial on damages. Additur: P's request to increase jury award of inadequate damages. -NEVER ALLOWED IN FEDERAL COURT.

Question 43

Post-trial correction of mistakes

Answer 43

District court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record. The court may do so on its own initiative or pursuant to a party's motion BEFORE an appeal from the judgment or order is docketed (i.e. added to appellate court's schedule). The appellate court's leave/permission is only required after the appeal has been docketed.

Question 44

Jury instructions

Answer 44

In a jury trial, a court (1) must inform the parties of its proposed instructions before instructing the jury and closing arguments, (2) must allow the parties to object on the record and outside the jury's presence before the instructions and closing arguments are delivered, and (3) may instruct the jury at any time before it is discharged.