Civ pro rule statements

Question 1

Scope of discovery

Answer 1

Discovery is generally permitted with regard to any non privileged material relevant to any party’s claim or defense in the action

Question 2

Discovery and admissibility

Answer 2

Information within the scope of discovery need not be admissible in evidence to be discoverable

Question 3

Test for whether information is discoverable

Answer 3

The test is whether the information sought is relevant to any party’s claim or defense

Question 4

Limits on discovering work product in general

Answer 4

In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative

Question 5

When can work product be discovered

Answer 5

Work product may be subject to discovery, however, if the party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means

Question 6

Discovery of experts not testifying at trial

Answer 6

If an expert is retained by another party in anticipation of litigation or to prepare for trial but is not expected to be called as a witness, then discovery is permitted only on a showing of exceptional circumstances

Question 7

Discovering ESI

Answer 7

A party may request the other party to produce and permit the inspection of any discoverable documents or electronically stored information

Question 8

Spoliation of evidence

Answer 8

Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence required for discovery

Question 9

Duty to preserve evidence

Answer 9

When litigation is reasonably anticipated, even if it has not yet been commenced, potential litigants in possession of potentially relevant evidence have a duty to preserve such evidence

Question 10

What happens once the duty to preserve is triggered

Answer 10

Once a duty to preserve evidence is triggered, the party in possession of the evidence must take reasonable measures to preserve it

Question 11

Routine operations that may destroy evidence

Answer 11

If a party has a policy in place that results in routine operations that may destroy evidence, that party must affirmatively act to prevent the destruction or alteration of such evidence, even if the destruction would typically occur in the regular course of business

Question 12

Sanctions for failing to preserve ESI

Answer 12

A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation

Question 13

Sanctions for spoliation

Answer 13

Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery

Question 14

Determining sanctions for spoliation

Answer 14

In determining sanctions for spoliation, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence

Question 15

Costly retrieval of information

Answer 15

When retrieval of information is possible, even if typically considered inaccessible because of cost, a court may order it and assign the costs to the party who destroyed the evidence. In those situations, no further sanctions may be imposed

Question 16

What if a party failed to preserve ESI and they can’t restore or replace it?

Answer 16

If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order alternate sanctions against the wrongful party, limited to the court’s discretion of those necessary to cure any prejudice to the other party

Question 17

Available sanctions for failing to preserve information

Answer 17

If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s usage in litigation, the available sanctions include a presumption that the destroyed information was unfavorable to the sanctioned party, a jury instruction hat it may or must presume the information was unfavorable, or entry of a default judgment against the party

Question 18

Removal in general

Answer 18

Generally, the defendant in any civil action filed in state court has the right to remove it to the district court for the district in which the state court action was filed, as long as the civil action is within the subject matter JDX of a district court

Question 19

When can fed courts exercise DJ

Answer 19

Federal courts may exercise diversity JDX over actions when 1. the opposing parties to an action are citizens of different states and 2. the amount in controversy exceeds $75,000

Question 20

Proving the amount in controversy for diversity JDX cases

Answer 20

Generally, a plaintiff’s good faith assertion in the complaint that the action satisfies the amount in controversy requirement is sufficient, unless it appears to a legal certainty that the plaintiff cannot recover the amount alleged

Question 21

Removal and diversity JDX

Answer 21

If removal is sought solely based on diversity jurisdiction, the claim may be removed only if no defendant is a citizen of the state in which the action is field

Question 22

Transfering a case to a different venue

Answer 22

For the convenience of the parties and in the interests of justice, a district court in which venue is proper may transfer any civil action to any other district or division where it might have been brought

Question 23

Proper venue

Answer 23

Venue is proper in a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; a substantial part of the events or omissions the claim is based on occurred; or a substantial part of the property that is subject of the action is located

Question 24

Transfer based on forum selection clauses

Answer 24

When transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect.

Question 25

Forum selection clauses that specify a federal forum

Answer 25

If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching.

Question 26

SCOTUS on forum selection clauses

Answer 26

The supreme court has held that a forum selection clause should be given controlling weight in all but the most exceptional cases

Question 27

Choice of law if original venue was proper

Answer 27

Generally, if the venue of an action is transferred when the original venue is proper, then the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law

Question 28

Choice of law when venue transferred because of forum selection clause

Answer 28

When venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including choice of law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue

Question 29

Claim preclusion

Answer 29

The doctrine of claim preclusion provides that a final judgment on the merits of an action precludes the parties from relitigating an identical claim in a subsequent action

Question 30

Issue preclusion rule statement

Answer 30

Issue preclusion precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim

Question 31

Issue preclusion and parties

Answer 31

Issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded was a party to the original action

Question 32

Elements for issue preclusion to apply

Answer 32

Elements necessary for issue preclusion to apply are 1. that the issue sought to be precluded is the same as that involved in the prior action; 2. the issue must have been actually litigated in the prior action; 3. the issue must have been determined by a valid and binding judgment; and 4. the determination of the issue must have been essential to the prior judgment

Question 33

12b motions

Answer 33

A defendant may file a motion under the FRCP 12(b) to raise several different defenses, including failure to state a claim on which relief can be granted and insufficient service of process

Question 34

When must 12b defenses be raised

Answer 34

These defenses must be raised in the first pre-answer motion (or if none, in the answer), or else they are generally waived

Question 35

Omnibus motion rule

Answer 35

Under the omnibus motion rule, when a party makes a pre-answer motion raising one of these defenses but omitting the other, the party may not make another pre-answer motion raising one of the omitted defenses that was available to the party when the earlier motion was filed. The party is deemed to have waived the excluded defenses

Question 36

Amending a motion to dismiss to raise an omitted ground

Answer 36

Although not specifically provided for in the FRCP, courts have generally allowed a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion

Question 37

Cross claims against defendants

Answer 37

The rules provide that an answer may state as a cross claim any claim against a co-defendant, so long as the cross claim arises out of the same event that is the subject of the original claim

Question 38

Federal question JDX

Answer 38

Federal district courts have original jurisdiction over all civil actions arising under the constitution, laws, or treaties of the United States

Question 39

Diversity jurisdiction

Answer 39

Federal district courts have jurisdiction over actions when opposing parties are citizens of different states and the amount in controversy exceeds $75,000.

Question 40

Complete diversity

Answer 40

For a court to have diversity jurisdiction, there must be complete diversity, meaning that no plaintiff can be a citizen of the same state as any defendant.

Question 41

Diversity for cross claims

Answer 41

For purposes of a cross claim between defendants, the defendants are treated as opposing parties and must therefore be diverse.

When a court is sitting in diversity JDX

Question 42

Supplemental JDX

Answer 42

A court may exercise supplemental jurisdiction over additional claims which the court would not independently have federal question or diversity jurisdiction if they arise out of a common nucleus of operative fact.

Question 43

Cross claims and supplemental JDX

Answer 43

A cross claim may be asserted by a defendant against another defendant if the cross claim arises out of the same transaction or occurrence as the initial claim, without regard to the amount in controversy or the citizenship of the parties to the cross claim as long as the court has subject matter jurisdiction over another claim in the action

Same goes with plaintiff vs. plaintiff actions

Question 44

Diversity in a class action

Answer 44

Diversity in a class action brought pursuant to Rule 23 will generally be determined by the citizenship of the named members of the class bringing the lawsuit

Question 45

Diversity in class actions with 5 million at issue

Answer 45

For certain class actions in which the amount at issue totals more than 5 million, diversity will be met if any member of the plaintiff class is diverse with any defendant.

Question 46

Citizenship of a corporation

Answer 46

A corporation is deemed to be a citizen of every state in which it has been incorporated and of the state where it has its PPOB

Question 47

Principal place of business

Answer 47

A corporation’s principal place of business is generally its corporate headquarters

Question 48

Citizenship of an individual

Answer 48

An individual is a domicilary of the state in which he is present an dintends to reside for an indefinite period

Question 49

Assertion of amount in controversy

Answer 49

A plaintiff’s good faith assertion in the complaint that the action satisfies the amount in controversy requirement is sufficient, unless it appears to be a legal certainty that the plaintiff cannot recover the amount

Question 50

Determining applicable law in district court

Answer 50

When an action is commenced in a US district court, the court must determine the substantive law and rules of procedure that will govern the action

Question 51

What law to apply in diversity action

Answer 51

In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located, if there is no federal law on point. With regard to procedure in a diversity action, if a procedural issue is addressed by a valid federal law, then the federal law will be applied, even if a state rule or statute conflicts with that.

Question 52

Class actions when state law bars it

Answer 52

Class actions can be maintained in federal court, despite a state law barring class actions to enforce statutory damages claims, if the action is authorized by rule 23

Question 53

Rule 23 requirements for class actions

Answer 53

1. the class must be so numerous that joinder of all the members is impracticable (numerousity)
2. there must be questions of law or fact that are common to the class (commonality)
3. the claims or defenses of the representattives must be typical of the class (typicality)
4. the representatives must fairly and adequately protect the interests of the class (adequacy)

Question 54

Domicile of decedent’s estate

Answer 54

A legal representative of a decedent’s estate will be deemed a citizen of the same state as the decedent – not the state where the legal representative is domiciled.

Question 55

Raising the defense of lack of SMJ

Answer 55

The defense of lack of subject matter jurisdiction may be raised at any time throughout litigation and even on appeal, as it is not waivable

Question 56

What does rule 11 provide

Answer 56

Rule 11 establishes the standards that attorneys and individual parties must meet when filing pleadings, motions, or other papers, and provides sanctions for violations of the rule

Question 57

Rule 11(a)

Answer 57

Under rule 11(a), every pleading, written motion, and other paper filed with the court must be signed by at least one attorney of record, or by the party personally if unrepresented.

Question 58

Rule 11(b)

Answer 58

Under rule 11(b), by presenting to the court a pleading, written motoin, or other paper, the signing attorney or unrepresented party certifies that to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances (i) the paper is not being presented for an improper purpose; (ii) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying or reversing exsting law or establishing new law; (iii) the factual contentions have evidentiary support or likely will have evidentiary support; and (iv) the denials of factual contentions are warranted on the evidence

woof

Question 59

rule 11(b) broken down into buzzwords

Answer 59

The party presenting the document to the court certifies that
1. no improper purpose
2. Claims defenses, contentions warranted by existing law or nonfrivolous argument to extend/change law
3. factual contentions have evidentiary support, or, if so identified will likely have support after discovery
4. Denials of contentions warranted on the evidence or if so sspecified, reasonably based on belief or lack of information

Question 60

Rule 5 on serving motion for sanctions

Answer 60

The motion for sanctions must first be served on the opposing party under Rule 5

Question 61

Motion for sanctions (what to file it with and what it must contain)

Answer 61

A motion for sanctions must be made separately from any other motion and must describe the specific conduct alleged to violate Rule 11

Question 62

21 day safe harbor period

Answer 62

Once the motion for sanctions is served on the opposing party, they have 21 days to withdraw or correct the challenged pleading

Question 63

What happens once the 21 day safe harbor period passes and no correction is made

Answer 63

If the 21 day safe harbor period passes, and the opposing party fails to correct the pleading, the party seeking sanctions may file the motion with the court

Question 64

imposing sanctions for violations of rule 11

Answer 64

Under certain circumstances, after notice and a reasonable opportunity to respond, the court may, in its discretion, impose sanctions on attorneys, law firms, and parties for violations of Rule 11

Question 65

What are sanctions for rule 11 limited by

Answer 65

These sanctions are limited to what will deter the misconduct in the future

Question 66

What can sanctions for rule 11 include

Answer 66

Sanctions may include nonmonetary directives or an order to pay a penalty into court.

Question 67

Can rule 11 sanctions pay for attorneys fees?

Answer 67

If sanctions are imposed on motion and warranted for effective deterrence, an order directing payment to the movant, for reasonable attorney’s fees and other expenses directly resulting from the violation may be appropriate

Question 68

Holding a law firm jointly liable for violation committed by partner, associate, or employee

Answer 68

Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

Question 69

Can a court impose a monetary sanction against party for violating rule 11 requirements

Answer 69

Generally, the court is not permitted to impose a monetary sanction against a represented party for violating the requirement that legal contentions be warranted by existing law or a nonfrivolous argument, although there is some authority for imposing such sanctions on a represneted party who knew, or should have known, the claim they asked their lawyer to pursue was legally and factually baseless

Question 70

Intervention as of right

Answer 70

Under the federal rules, a nonparty has the right to intervene in an action when, upon timely motion (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties.

Question 71

burden of proving intervention as of right is warranted

Answer 71

The burden of proving an intervention as of right is warranted is on the party seeking to intervene

Question 72

TRO

Answer 72

A TRO preserves the status quo of the parties until there has been an opportunity to hold a full hearing on whether to grant a preliminary injunction

Question 73

duration of TRO

Answer 73

A TRO has immediate effect and lasts no longer than 14 days unless good cause exists

Question 74

When may a TRO be issued iwthout notice to the adverse party

Answer 74

A TRO can be issued without notice to the adverse party if the moving party can show
1. that immediate and irreparable injury iwll result prior to a hearing on the adverse party’s arguments
2. the efforts made at giving notice and why it should not be required

Question 75

Bond requirement for TRO

Answer 75

A party seeking a TRO usually must 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 76

preliminary injunction

Answer 76

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue

Question 77

what a party seeking a PI must establish

Answer 77

A party seeking a PI must establish
1. the party is likely to succeed on the merits
2. the party is likely to suffer irreparable harm in the absence of relief
3. the balance of equities is in the party’s favor
4. the injunction is in the public’s best interests

Question 78

Security requirement for a PI

Answer 78

Typically, a party seeking a PI must provide security like it would for a TRO

Question 79

General requirement that affirmative defense be in answer

Answer 79

Generally, a defendant’s answer must state any avoidance or affirmative defense the defendant has, or that defense is deemed waived

Question 80

Pleadings amended by leave of court

Answer 80

The federal rules provide that pleadings can and should be amended by leave of court when justice so requires. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party

Question 81

When should a MSJ be granted

Answer 81

A motion for summary judgment should be granted if the pleadings, discovery, and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law

Question 82

How should court rule on MSJ

Answer 82

In ruling on a motion for summary judgment, the court must construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of the nonmoving party

Question 83

When a cause of action is created by fed law

Answer 83

Generally, if a cause of action is expressly created by federal law, and federal law provides the underlying right, then federal Q jurisdiction will exist

Question 84

How to tell if a claim is part of the same case or controversy

for supplemental JDX

Answer 84

In judging whether claims are related, the test is whether they arise out of a common nucleus of operative fact, such that all claims should be tried together in a single judicial proceeding

Question 85

discretion to decline supplemental JDX

Answer 85

A district court has discretion to decline to exercise supplemental JDX over a claim that would otherwise qualify for supplemental JDX in the following circumstances
1. the supplemental claim raises a novel or complex issue of state law
2. the supplemental claim substantially predominates over the claims within original federal JDX
3. all of the claims within the court’s original JDX have been dismissed; or
4. exceptional circumstances

Question 86

Determining whether a rule is valid under the rules enabling act

Answer 86

If there is a valid federal rule of procedure on point, then the court must determine whether the rule is valid under the rules enabling act. Specifically, the court must ask whether the rule abridges, enlarges, or modifies any substantive right.

Question 87

Complaint requirements under FRCP

Answer 87

Under the FRCP, a complaint (or any pleading in which a claim is made) must include a short and plain statement of the claim establishing entitlement to relief.

Question 88

Failure to include defense of insufficient service of process in pre answer motion

Answer 88

Under Rule 12(h), if a party makes a pre answer motion, the motion must raise the defense of insufficient service of process in the pre answer motion, or the defense is waived.

Question 89

Allowing parties to amend MTDs

Answer 89

Generally, courst allow a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion. This is in line with the FRCP’s policy with regard to amendments, and there would be no undue prejudice to the opposing party

Question 90

Service under FRCP

personal service/leaving it with someone

Answer 90

FRCP 4 allows service by delivering a summons and complaint to an individual personally, or by leaving a copy at the individual’s dwelling with someone of suitable age or discretion

Question 91

Joinder rule

Answer 91

Under FRCP 20, persons may join in one action as plaintiffs if (i) they assert any right to relief jointly, severally, or in the alternative arising out of the same transaction or occurrence, and (ii) there will be any question of law or fact common to the plaintiffs

Question 92

Counterclaim

Answer 92

A counterclaim is a claim for relief made against an opposing party after an original claim has been made.

Question 93

What must the defendant include in her answer

re counterclaims

Answer 93

A defendant must incude in her answer to a complaint any claim that the defendant has against the plaintiff that arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim.

Question 94

Failing to assert a compulsory counterclaim

Answer 94

A party who fails to assert a compulsory counterclaim wavies the right to sue on the claim and is generally precluded from ever suing on the claim in federal court

Question 95

issue preclusion , generally

Answer 95

the doctrine of issue preclusion (aka collateral esoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined in an earlier adjudication.

Question 96

Requirements for issue preclusion

Answer 96

A party asserting issue preclusion must establish (i) the issue is identical to the same issue in a prior action, and relevant facts and law are identical; (ii) the issue was actually litigated in the prior action; (iii) the issue was determined by a valid and binding final judgment; and (iv) the determination of the issue must have been essential to the prior judgment. Also, the party to be precluded must have been a party to the original action

Question 97

mutuality of parties for claim preclusion

Answer 97

unlike claim preclusion, issue preclusion does not require strict mutuality of parties; it requires only that the party against whom the issue is to be precluded was a party to the original action.

Question 98

When will a court not allow a party to use offensive issue preclusion

Answer 98

Trial courts have broad discretion to determine whether offensive collateral estoppel should be allowed. If a plaintiff could have easily joined in an earlier action, or if offensive estoppel is unfair to a defendant, the judge should not allow it.

Question 99

Preclusion and choice of law

Answer 99

The preclusive effect of federal judgments is typically determined by federal law. However, federal common law requires that the preclusive effect of a judgment by a federal court sitting in diversity must be govered by the law of the state where the federal court is located.

SEMTEK

Question 100

General rule on service for corps outside of US

Answer 100

FRCP allows service of process to be made on a corporation outside the US using any methods available for service of an individual outside the US, except personal delivery.

Question 101

Methods of service for people/corps outside foreign country

Answer 101

These methods include service in any manner, internationally agreed on, which is reasonably calculated to give notice. If no agreement exists, service may be effected by any method ordered by the court that is not prohibited by law of the foreign country

Question 102

DPC requirements for service

Answer 102

To meet the constitution’s due process requirements, a litigant must be given reasonable notice of the action, under all circumstances, so as to apprise him of the pendency of the action and allow an opportunity to object