Civil Procedure

Question 1

jurisdiction

Answer 1

the power of the court

a court must have proper jurisdiction over the subject matter and jurisdiction over the person in order for any judgment it issues to be binding upon the parties

Question 2

subject matter jurisdiction

Answer 2

state courts have general jurisdiction

federal courts have limited jurisdiction
- each claim brought to federal court must have an independent basis for jurisdiction

Question 3

when does a federal court have jurisdiction?

Answer 3

if the claim rises under federal law

is created by state law but depends on a substantial federal question
- this includes: constitution and treaties

Question 4

diversity jurisdiction

Answer 4

complete diversity of citizenship
AND
over 75K in controversy

Question 5

what does complete diversity mean??

Answer 5

no single plaintiff may be a citizen of the same state as any single defendant

Question 6

how is citizenship determined?

Answer 6

by domicile

Question 7

how is a corporations citizenship determined?

Answer 7

it is a citizen of its state of incorporation and a citizen of a state where its principal place of business is located.

Question 8

how is a partnership citizenship determined?

Answer 8

a citizen of every state where its members are a citizen.

Question 9

aggregation of claims in federal court to meet diversity

Answer 9

a claimant may aggregate claims against a SINGLE defendant but not against MULTIPLE defendants.

multiple claimants cannot aggregate claims to meet the 75K min.

Question 10

supplemental jurisdiction

Answer 10

fed court has discretion to consider a pure state law if there is a common nucleus of operative facts between the state law claim and the federal claim.

if fed claim is based on diversity– ONLY claims involving diverse parties may be added provided they arise from a common nucleus of operative facts
- do not have to = $75K in controversy

if one claim is based on a federal question then the state law claim with non-diverse parties may be brought under supplemental jurisdiction

Question 11

who can remove a case to federal court and how?

Answer 11

Defendants in state court can remove an action to the federal court that geographically embraces the state court if:

• the federal court would have jurisdiction
• all defendants consent
• notice of removal is filed within 30 days of the service of the complaint

Question 12

when can a defendant remove the case to federal court?

Answer 12

basis is diversity of citizenship:
- no removal is allowed if any defendant is a citizen of the state where the action is pending

basis is federal question:
- this rule does not apply

basis is defendant’s defense is federal-law based defense:
- this rule does not apply

Question 13

remand

Answer 13

when federal jurisdiction does not exist and the Plaintiff wants the claim back to state court

must be done within 30 days from the filing of the notice of removal

Question 14

personal jurisdiction

Answer 14

exists if the court has:

in personam jurisdiction over the parties

in rem jurisdiction over property that is subject to the claim

quasi in rem jurisdiction over property that is attached to satisfy judgment

Question 15

when must objections to personal jurisdiction be brought?

Answer 15

in the first responsive pleading or they will be waived

Question 16

what is in personam jurisdiction?

Answer 16

exists when a person is located within the state by either domicile or service

if D is served while in the forum state, jurisdiction exists even if his present is temporary and even if his presence is unrelated to the claim

if presence is due to FRAUD, FORCE or PARTICIPATION IN ANOHER JUDICIAL PROCEEDING, service is not valid

if the D consents to jurisdiction

Question 17

consent for service can be done by:

Answer 17

implied
- state has a substantial interest in regulating nonresidents in a particular in-state activity

express

waived

• if D fails to raise the defense of lack of opersonal jurisidction in an answer or first responsive pleading
• not waived if D appears in court to contest jurdicstion

Question 18

Long-arm jurisdiction

Answer 18

specific jurisdiction over the defendant who does specific activities enumerated in the statute

applies when:

• D transacts business within the state
• D enters contracts within the state
• D committed the act in the state

Question 19

in rem jurisdiction

Answer 19

based on the parties interest in a particular piece of property located within the state

Question 20

quasi in rem jurisdiction

Answer 20

actions involving attachment of real or personal property as a part of the relief

Question 21

service of process

Answer 21

when the D is served with a summons and a copy of the complaint

not required for an action to start

must occur within 120 days of the filing of the complaint

Question 22

what are the proper methods of service?

Answer 22

abode service 
waiver
agent service
state methods 
personal service

Question 23

if D argues that service of process was insufficient, they must….

Answer 23

raise the defense in its first responsive pleading or those defenses will be waived

Question 24

venue

Answer 24

limit on a plaintiff’s choice of where to file

Question 25

venue is proper where...

Answer 25

any defendant resides, if all D reside in that state federal district: -a substantial part of the claim arose OR -where the property is located where the defendant can be found if there is no other district in which the action may otherwise be brought

Question 26

if the venue is improper what can D do?

Answer 26

file a motion to dismiss based on improper venue in the first responsive pleading

Question 27

motion for transfer

Answer 27

if D prefers a different venue then the remedy is to file a motion to transfer BASED ON FORUM NON CONVENIENS

Question 28

FORUM NON CONVENIENS

Answer 28

for the convenience of the parties and witnesses and in the interest of justice

Question 29

complaint requirements

Answer 29

must contain sufficient facts to place the adversary on notice of plausible claims

Question 30

complaint claim for relief must include....

Answer 30

short and plain statement of the jurisdiction statement of ca claim that would entitle the claimant to relief demand for relief

Question 31

after the complaint has been filed and served what must the D do?

Answer 31

file a responsive motion or answer has 21 days from the date of service of the complaint to file

Question 32

what are the Rule 12(b) defenses?

Answer 32

lack of personal jurisdiction insufficient service of process or insufficient process improper venue failure to state a claim failure to join an indispensable party lack of subject matter jurisdiction - can be raised at any time and can be raised by the court

Question 33

When are Rule 12 | (b) defenses to be used?

Answer 33

must be filed within the first responsive pleading

Question 34

Answer

Answer 34

must deny or admit to every allegation in the complaint must include any previously asserted 12(b) defenses and all affirmative defenses

Question 35

Rule 8(c)(1) affirmative defenses

Answer 35

accord and satisfaction arbitration and award assumption of risk contributory negligence discharge in bankruptcy duress estoppel failure of consideration fraud illegality injury by fellow servant laches licenses payment release res judiciata SOF statute of limitations waiver

Question 36

when can a plaintiff amend their complaint?

Answer 36

within 21 days of service upon the D after 21 days: must file a leave to amend

Question 37

if P wishes to add a new claim to the complaint when amending their complaint then....

Answer 37

it relates back to the date of a timely-filed complaint if the new claim derives from the same transaction or occurrence

Question 38

if P wishes to add a new party to the complaint when amending their complaint then....

Answer 38

relation back applies only if the amendment derives from the same transaction and the new party acquired knowledge within 120 days of the earlier filed complaint.

Question 39

joinder of parties

Answer 39

P may join parties to the same lawsuit if the claims involving those parties derive from the same transaction. P must join indispensable parties if it would be prejudiced to any parties right to a fair trial

Question 40

joinder of claims

Answer 40

P may join as many claims as they have against the D do not have to have any connection

Question 41

what are the 3 different ways a 3rd party can join a lawsuit and bring claims?

Answer 41

Impleader interpleader intervention

Question 42

impleader

Answer 42

defendant may bring a 3rd party if that party may be liable to defendant for all or part of Defendants liability to P

Question 43

interpleader

Answer 43

a suit pleaded between two parties to determine a matter of claim or right to property held by a third party.

Question 44

intervention

Answer 44

a non-party moves to enter into a lawsuit

Question 45

counterclaim

Answer 45

D can file against P if it arises from the same occurrence then it must be brought in the same claim either: manadatory OR compulsory

Question 46

mandatory counterclaim

Answer 46

failure to bring results in a waiver

Question 47

permissive counterclaim

Answer 47

when it seeks to join claims that do not arise from the same occurrence failure to bring does not result in a waiver

Question 48

cross-claims

Answer 48

may be brought by any party against any co-party when the claim arises out of the same transaction as the original claim or counterclaim.

Question 49

class actions

Answer 49

actions where the names plaintiff represents a class of commonly-situated absent plaintiffs.

Question 50

class-actions C A N T

Answer 50

commonality - common issues of fact or law adequacy - plaintiff must fairly represent the class numbers -at least 40 typicality -the claims of the plaintiff are typical of the class

Question 51

when is a court less likely to gran class certification?

Answer 51

if multiple state laws are involved and individual claims require separate investigation

Question 52

discovery

Answer 52

includes: | mandatory & traditional

Question 53

mandatory forms of discovery

Answer 53

required within 2 weeks of the initially discovery conference duty to supplement mandatory disclosures or be subject to exclusion of that evidence at trial mandatory disclosures are: - supporting witnesses - supporting documents - damages computation - relevant insurance coverage

Question 54

what are the traditional mens of discovery...

Answer 54

depositions interrogatories request for admissions production of documents request for physical or mental examination

Question 55

depositions

Answer 55

direct questioning of a party or witness under oath

Question 56

interrogatories

Answer 56

written questions that must be answered by another party in writing under oath within 30 days only served on parties and not witnesses

Question 57

request for admission

Answer 57

any request that is admitted is deemed established for all purposes in the litigation

Question 58

production of documents

Answer 58

request to a party to produce document or property for inspection and copying

Question 59

request for physical or mental examination

Answer 59

only when a person's condition is in controversy. good cause is required

Question 60

work product doctrine

Answer 60

any material that an attorney or someone at their discretion prepared for litigation and was not in the ordinary course of business all other forms of work product are discoverable only with a showing of substantial need and undue hardship

Question 61

jury trial

Answer 61

party has a constitutional right to a jury trial if its claim primarily seeks monetary damages must file written demand within 14 days of service

Question 62

jury selection

Answer 62

each party receives 3 peremptory challenges used to strike jurors

Question 63

motion for summary judgment

Answer 63

filed within 30 days after the close of discovery may be granted if there are no genuine issues of material fact and the movant is entitled tot judgment as a matter of law movant must produce evidence to support each element of the cause of action all inferences are drawn in favor of the non-movant

Question 64

judgment as a matter of law

Answer 64

AKA directed verdict made at the lose of the opponent's case made when there is insufficient evidentiary basis that a reasonable jury could find for the non-moving party

Question 65

default judgment

Answer 65

entered against D when he failed to respond to the complaint in a timely manner

Question 66

renewed motion for judgment as a matter of law

Answer 66

formerly called a judgment notwithstanding the verdict, the motion is made within 28 days of judgment

Question 67

motion for a new trial

Answer 67

made within 28 days granted in the court's discretion if either: -the errors at trial affected the parties' trial rights OR -against the weight of the evidence

Question 68

claim preclusion

Answer 68

claim can not be relitigated if the claim arises between the same parties or those in privity with them it arises out of the same transaction the court determined the claim on the merits AND had proper subject matter jurisdiction

Question 69

collateral estoppel AKA Issue preclusion

Answer 69

an issue that cannot be relitigated may only be used against someone who was not a party to the first action against one who was a party in the earlier suit

Question 70

when is a judgment eligible for appeal?

Answer 70

when a final order entered by a lower court

Question 71

when a party wanting to file an appeal they must...

Answer 71

file it notice of appeal within 30 days from the entry of the judgment

Question 72

final judgment

Answer 72

one that disposes of all issues as to all parties if a judgment only resolves some of the claims then an interlocutory appeal can be requested

Question 73

motion for relief from a judgment

Answer 73

within 1 year of a judgment a party can file ``` requires: MEND Merit Equity New facts Due diligence ```