Civ Pro

Question 1

When is there never Subject Matter Jurisdiction?

Answer 1

1. For Probate cases and

2. For Divorce/Custody cases

Question 2

SMJ: Federal Question Jx must appear on the face of the complaint

Answer 2

It can’t rise out of a defense or if the federal issue is just a hypothetical (e.g., is there a federal patent infringement that led to this MedMal case? not central enough)

Question 3

Supplemental Jx, or adding-on a claim arising from the same transaction or occurrence (same event)

Answer 3

A form of SMJ that can be used to aggregate claims and beat the Amount in Controversy requirement (Diversity + $75,000.01). But it cannot be used to overcome a lack of Diversity.

Question 4

When can a federal court deny Supplemental Jx?

Answer 4

If:

(1) Underlying claim is dismissed early
(2) Claim is too complicated to add this on or
(3) This claim predominates the underlying claim

Question 5

Removal Basics for a Defendant to remove this bullshit to federal court

Answer 5

1. Is there SMJ? (FQ or Diversity) Is the federal court in the same area?
2. Are you a D?
3. Were you served less than 30 days ago?
4. Did you file a Notice of Removal?

Question 6

Transferring Venue: Anyone Jackass can do it!

Answer 6

1. New Venue just has to have Personal Jurisdiction + Subject Matter Jurisdiction + Proper Venue
2. Can transfer venue in the interest of justice or the convenience of the parties and witnesses (even if the original venue was correct)
3. Original court’s choice-of-law rules will apply (unless it was an improper venue)
4. Even if the original venue was proper, you can still transfer to a new one. You just need (A) all parties to consent to it OR (B) it has to be brought to a venue where it originally could have been heard

Question 7

Always apply State Court rules concerning these issues, rather than Federal Court rules:

Answer 7

1. Conflict of Laws
2. Statute of Limitations
3. Elements of a claim or a defense

Question 8

Always apply Federal Court rules to these issues, rather than State Court rules:

Answer 8

1. If there’s Federal Question jurisdiction
2. There’s an on-point and valid Federal Law on the subject
3. Federal system has the strongest interest in its application and the state law isn’t substantive anyway

Question 9

Motion to Dismiss based on Insufficient Process

Answer 9

File this if:

1. Summons & Complaint hasn’t been served within 90 days of its filing;
2. Summons served without Complaint, or vice versa;
3. Served by a party, or served by someone under 18;
4. Served with someone who is not legally competent and does not reside at the abode, or not authorized as an agent

Question 10

If Waiver of Service is requested by P, and correct protocol was followed, D is required to waive service

Answer 10

Unless there’s a showing of “good cause.” Once he agrees to waive service, he’ll get 50 days to Answer the Complaint now, as opposed to 21 days.

Question 11

What do we waive if we don’t file it in the Very First Filing? (First Motion, First Answer, etc.)

Answer 11

1. Lack of PJ
2. Improper Venue
3. Insufficient Service
4. Insufficient Process

NOTE: SMJ can NEVER be waived.

Question 12

How to amend a pleading?

Answer 12

You have 21 days to amend it for any reason, and the other party will have 14 days to respond after you file the amended version. If it’s been more than 21 days, you need the court’s permission.

Question 13

Permissive Joinder v. Compulsory Joinder v. Impleader v. Intervention

Answer 13

PERMISSIVE JOINDER - P invites a co-P or forces a new co-D in from the same transaction or occurrence (will usually have Supplemental Jx over this)

COMPULSORY JOINDER - Court forcing an absent party to join because they are necessary; but doesn’t have to dismiss the case if they can’t join them in (will usually have Supplemental Jx over this)

IMPLEADER - D joints in a co-D (but can’t substitute their liability)(will typically have Supplemental Jx) – has 14 days to join co-D after serving Answer

INTERVENTION - Non-party just joins on their own (NEEDS AN INDEPENDENT BASIS FOR SUBJECT MATTER JURISDICTION, EITHER FQ OR DIVERSITY)

Question 14

What the fuck is an Interpleader?

Answer 14

Property holder adding in claims from other parties claiming to have a right to the property (“Knives out”)

Question 15

How to Depose a Company

Answer 15

Either name a specific employee in the Dep Notice (and they can file a Protective Order to stop it) or just name the company generally and they will decide who is fit to sit for a deposition on its behalf

Question 16

Judgments that are not Final, so you CANNOT appeal them:

Answer 16

1. Mtn for a New Trial
2. Motion for Summary Judgment
3. Voluntary Dismissal
4. Injunction that is not on the merits

Question 17

PJ BY SERVICE: Personal Jurisdiction can be exercised over a person who voluntarily enters the state and is served with process there

Answer 17

Service in a forum state gives the forum state PJ over that Defendant, even if that Defendant is in the state for a different reason

Question 18

PJ THROUGH GENERAL JURISDICTION

Answer 18

PJ over a Defendant when they have General Jurisdiction. Are D’s contacts with the forum state so continuous and systematic as to render them at home there? Is there Principal Place of Business there? Are they incorporated there? General Jx –> PJ.

Question 19

No Removal to Federal Court for these time limitations:

Answer 19

1. No removal if it’s been ONE YEAR after the case commenced in state court (applies to Diversity cases only, you can still remove FQs).
2. Also, no removal if it’s been more than 30 DAYS since the Defendant discovered, through service of an amended pleading, etc., that the case has become removable.

Question 20

Can you appeal a Denial or Grant of a Class Action Certification?

Answer 20

Yes, even though a court’s order granting or denying the certification of a class is not a final judgment in the case, a party may seek review of the decision in the court of appeals if they file it within 14 days.

Question 21

Do you need SMJ in a Class Action Suit?

Answer 21

You need SMJ over the Class Representative either through Diversity or Federal Question. But there is NO Amount in Controversy requirement.

Question 22

Reasons to certify a Class Action:

Answer 22

1. Class has to be NUMEROUS enough where separate actions would be impracticable and it would be highly inconvenient to individually hear them all;
2. There are COMMON QUESTIONS OF LAW OR FACT pertaining to the class;
3. The named parties’ INTERESTS ARE TYPICAL of the one class, not varied;
4. The CLASS’ COMMON ISSUES DO NOT PREDOMINATE OVER THEIR INDIVIDUAL ISSUES (e.g., if the separate intent of each hiring manager has to be addressed first for each employment discrimination case, there are still individual issues predominating and there should not be a certification)
5. If not heard for the class as a whole, there is A RISK OF INCONSISTENT RESULTS and FOR THE CLASS AS A WHOLE, INJUNCTION OR DECLARATORY RELIEF IS APPROPRIATE

Question 23

Insurance Policy and Multiple Accidents attributed to one Driver. Is there SMJ? Yes, under Statutory Interpleader (Minimal Diversity + $500).

Answer 23

Interpleader allows a person facing multiple and possibly conflicting claims to property to resolve all claims in one proceeding. SMJ applies as long as there are at least 2 diverse claimants and the amount in controversy is $500 or more. Just having 2 diverse claimants, one from State B and one from State C, is enough to satisfy minimal diversity here, and the value of the fund at issue here is $1 million.

Question 24

If the other party files a Motion to Compel a discovery response that is overly broad and burdensome, what can the court do in response?

Answer 24

The court can deny it, and then it MAY issue a Protective Order. But it MUST, after giving an opportunity to be heard, require the moving party (or his attorney) to pay the other party its reasonable expenses incurred in opposing the motion, INCLUDING ATTORNEY’S FEES. Almost seems kind of counter-intuitive because from what you learned about Contracts damages, you can’t recover Attorney’s Fees. It’s also not necessary that the other party file a Protective Order before they are given the benefit of being awarded Attorney’s Fees.

Question 25

Can a clerk enter in a Default Judgment or does it have to be the Judge? I thought just a clerk was fine?

Answer 25

So, if the claim is for a CERTAIN SUM, it can be entered in by the Clerk and no involvement by the Judge is necessary. But if the sum is uncertain and intangible, the judgment amount has to be handled by the Judge, who can choose to conduct an evidentiary hearing. Damages for an "Intangible Harm" is NOT a Certain Sum, so the Judge has to handle it.

Question 26

When does Personal Jurisdiction violate 5th Amendment Due Process?

Answer 26

When the Defendants' sum of contacts with the whole NATION are not sufficient to satisfy the 5th Amendment standard of Due Process. When Congress enacts a statute creating a federal cause of action and includes nationwide service-of-process, the question implicates the Fifth Amendment.

Question 27

MSJ requirements.

Answer 27

Must be filed within 30 days after discovery ends and there has to be no genuine dispute as to a material fact. Can you appeal an order granting/denying a MSJ? No, because it's not a final judgment on the merits and it's not an Interlocutory Appeal.

Question 28

A dismissal for SOL running out in State A will have preclusive effect in State B's court. Why?

Answer 28

The preclusive effect of a federal court's judgment in diversity is determined by federal common law. State B will apply federal common law to determine how and whether it is bound by State A's judgment. Dismissal with prejudice for SOL running out will have preclusive effect. Also, because of claim preclusion, you can't bring a state case dismissed with prejudice to a federal court in that district. It'll be precluded. Fed court still has to abide by original court's Claim Preclusion laws.

Question 29

What do you file to argue insufficiency of evidence?

Answer 29

File JMOL before the case is submitted to the jury, and then RJMOL after the jury verdict, if "verdict goes against the great weight of evidence" or there's a procedural issue. This will preserve an issue for appeal. Can then file Mtn for New Trial within 28 days after judgment.

Question 30

Interlocutory Appeal

Answer 30

An appeal you can file on an injunction, even if it does not have a final judgment. BUT despite there being no final judgment, it still has to have been ruled on the merits. Unless there's a complicated question of law the courts are divided on (among other exceptions).

Question 31

What can be done when a jury verdict is so high it "shocks the conscience?"

Answer 31

The Judge can order a "conditional new trial," meaning he can order a new trial at his discretion, but can choose not to if the Plaintiff agrees to a smaller jury award the Judge believes is justified by the evidence.

Question 32

Deposing Non-Parties

Answer 32

First, you have to issue a subpoena. Secondly, they must be within 100 miles of the deposition location (either they live within that distance, work there, or transact business there in person). If they are a party or an officer of a party, they may be deposed if they live or work or transact within that state.

Question 33

Claim Preclusion -- What Law does the 2nd Court Apply?

Answer 33

If a claim was brought both in state and federal court and already decided in federal court, the state court must look to federal common law to determine the preclusive effect because it was already decided by the first court.

Question 34

MSJ Standard, Opposition, and Deadline

Answer 34

May be filed by a Defendant to point out that the Plaintiff does not meet an essential element of its case (and burden of proof at trial is on Plaintiff, with the standard of not producing evidence of genuine dispute of material fact). Can file anytime from the start of the matter through 30 days of discovery's end. In response to the MSJ, Plaintiff should provide affidavits and other materials seeking further discovery because the facts are still unavailable.

Question 35

Standard for JMOL and RJMOL

Answer 35

Whether there is "substantial evidence in the record to support the verdict, resolving all disputed issues in the moving party's favor."

Question 36

Issue Preclusion (1st is state court, then federal court)

Answer 36

The second court, even though it is a federal court, has to apply the preclusion rules of the first court. Rules of state court sitting in diversity.

Question 37

Supplemental Jurisdiction doesn't let you add a party if it defeats Diversity, EXCEPT WHEN:

Answer 37

Defendant adds a Co-Defendant via Impleader. Usually, Supplemental Jurisdiction lets you add-on claims and parties without independently satisfying SMJ if those claims are so related in the action that they are from the "same case or controversy."

Question 38

Six Juror Minimum or you can file for Mistrial (but Exception exists)

Answer 38

Mistrial may be declared if the jury dwindles to less than 6 jurors, UNLESS the parties stipulate to it.