Civil Procedure

Question 1

preliminary injunction

Answer 1

(i) Notice: P gave notice / D has opp’y to attend hearing
(ii) likelihood of success on merits
(iii) irreparable harm will occur if prelim injunction is not given
(iv) ‘balancing the equities’ comes out in favor of granting (benefit to P vs. harm to D)
(v) granting is in the best interest of the public

Question 2

temporary restraining order

Answer 2

(i) immediate & irreparable harm would occur if court doesn’t issue
(ii) why they couldn’t give notice

NOTE: 14 days max

Question 3

timing to file an appeal

Answer 3

30 days

Question 4

CAFA requirements

Answer 4

(i) at least 100 members
(ii) damages that exceed $5 million
(iii) minimal diversity (at least one P diverse from one D)

Question 5

statutory interpleader

Answer 5

Under Federal Interpleader Act:

(i) Nationwide PJ
(ii) The “Bulge Provision” allows the area for service of process to “bulge” to within 100 miles of federal courthouse, even if it crosses state lines
(iii) the AIC $500+
(iv) diversity btw any adverse claimants

Question 6

claim preclusion

Answer 6

(i) same parties
(ii) same claims
(iii) final judgment on the merits

NOTE: law of the forum determines preclusive effect of judgment

Question 7

issue preclusion

Answer 7

(i) same issue;
(ii) actually litigated;
(iii) final judgment on the merits;
(iv) issue essential to prior action
(v) party against whom issue preclusion is asserted was a party to prior action

Question 8

pre-trial disclosures

Answer 8

— witnesses (name, address, phone # of those testifying and those that will testify if need arises)

— depositions to be presented

— exhibits (those will offer and those that will be offered if need arises

Question 9

standards of appellate review

Question 10

personal jurisdiction for out-of-state defendant

Answer 10

(i) did D purposefully avail themselves of the benefit of the forum state and/or was it reasonably foreseeable that they would be called into State B’s courts?
(ii) is exercising PJ over D consistent with traditional notions of fair play and substantial justice?
——(consider resources of D; ease of transportation and communication”)

Question 11

modes of properly serving process

Answer 11

(a) personal
(b) D’s place of abode w/ person of suitable age & discretion who lives there
(c) on D’s agent
(d) another method under state law

Question 12

requirements for a rule 23 class action

Answer 12

(i) the class must be so numerous that joinder of all members is impracticable (numerosity);
(ii) there must be questions of law or fact that are common to the class (commonality);
(iii) the claims or defenses of the representatives must be typical of the class (typicality);
(iv) the representatives must fairly and adequately protect the interests of the class (adequacy).

Question 13

Erie analysis

Answer 13

[See flowchart on p. 25 of “outlines by subject” document]

Question 14

14-day deadlines

Answer 14

1. File answer after pre-answer motion denied
2. File third-party complaint without leave after original answer served
3. Respond to amended pleading
4. Submit proposed discovery plan & initial disclosures after initial conference
5. Demand jury trial after last pleading served

Question 15

21-day deadlines

Answer 15

1. Serve answer or pre-answer motion after service of complaint, counterclaim, or crossclaim
2. Amend pleading as matter of course after pleading was served
3. Serve reply to answer
4. Hold initial conference before scheduling order is due

Question 16

28-day deadlines

Answer 16

(most post-trial filings)

1. Renew JMOL
2. Move for new trial
3. Move to alter or amend judgment
4. Move to amended findings after final judgment

Question 17

30-day deadlines

Answer 17

(most discovery deadlines)

1. File notice of removal after receipt of initial pleading
2. Move to remand after notice of removal filed
3. Submit pretrial disclosures before trial (e.g., which experts are testifying, etc)
4. Respond to interrogatories, requests for production & requests for admission
5. Move for summary judgment after close of discovery
6. File notice of appeal

Question 18

60-day deadlines

Answer 18

1. answer or pre-answer motion after service waived (domestic)
2. answer after service of process on U.S. agency or employee

Question 19

90-day deadlines

Answer 19

1. Serve process after complaint is filed
2. File answer or pre-answer motion after foreign service waived
3. Disclose expert witness materials before trial

Question 20

Rule 11 sanctions

Answer 20

— document is presented for proper purpose—not to harass, cause unnecessary delay, or needlessly increase cost of litigation

— claims, defenses & legal contentions are warranted by existing law or by non-frivolous argument for revising or establishing law

— factual assertions have or will have evidentiary support and

— factual denials are warranted by evidence or reasonably based on belief/lack of information

Question 21

who can you serve interrogatories on?

Answer 21

Only a party to the litigation

Question 22

what makes something discoverable

Answer 22

(i) relevant to any claim or defense
(ii) proportional to needs of the case

Question 23

discoverability of expert witnesses

Answer 23

information held by an expert witness expected to testify at trial is generally non-privileged and discoverable

facts known and opinions held by an expert notexpected to testify are privileged and not discoverable unless:
— that information relates to a court-ordered physical or mental examinationor
— exceptional circumstances make it impracticable to obtain that information by other means—eg, a party dies and cannot be evaluated.

Question 24

Types of required disclosures and timing

Answer 24

Initial disclosures (14 days after pretrial conference)

Expert testimony (90 days before trial)

Pretrial disclosures (30 days before trial)

Question 25

Required initial disclosures

Answer 25

Initial disclosures
— Persons with relevant information
— Items in party’s possession that support claim/defense
— Computation of damages & supporting material
— Relevant insurance policies

Question 26

Required expert testimony disclosures

Answer 26

Expert testimony
— Identity of expert witnesses
— Expert’s written report
— If no report, subject matter & summary of testimony

Question 27

Required pretrial disclosures

Answer 27

Pretrial disclosures
— Testifying witnesses
— Deposition testimony to be used at trial
— Documents/exhibits to be used at trial

Question 28

intervention

Answer 28

Rule 24

Nonparty can intervene as a matter of right 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 29

types of class actions (& notice required for each)

Answer 29

prejudicial risk –> notice optional

final equitable relief –> notice optional

common question –> notice required

Question 30

if supplemental jx exists, why might a federal court nevertheless decline to exercise it?

Answer 30

— the supplemental claim raises a novel/complex state law issue

— the supplemental claim predominates over the original claims

— the original claims have been dismissed

— another compelling reason

Question 31

general personal jurisdiction for a corporation

Answer 31

Ask whether the corporation’s affiliations with the forum state are so “continuous and systematic” as to render the corporation essentially “at home” in the forum state. In all but the most exceptional cases, this is only where the corporation is incorporated and their principal place of business

Question 32

required joinder

Answer 32

Rule 19

(Unless the party would destroy diversity,) A party whose joinder is necessary for a just adjudication will be joined if feasible; Bulge Provision applies for service of process

A party is necessary if court cannot accord complete relief w/o them; their interest is so situated in the action that they would be impaired in protecting interest or create risk of inconsistent or double judgments w/o them.

If the necessary party cannot be joined, the court must evaluate whether the action can proceed without them or whether they are actually an indispensable party. Factors include: extent of prejudice to them; extent of prejudice to existing parties; extent that court can reduce prejudice by certain measures; extent to which judgment would be adequate; extent to which they’d have an adequate remedy, etc.

Question 33

permissive joinder

Answer 33

Rule 20

(Unless a party would destroy diversity,) A party may join if her claim arises out of the same trxn or occurrence and has a common question of law or fact

Question 34

counterclaims

Answer 34

Rule 13

compulsive counterclaim = D must state any claim relating to the same trxn or occurrence as P’s claim. Lost if not asserted.

permissive counterclaim = D may state any other claim she has against P

Question 35

impleader

Answer 35

Rule 14

D may implead a 3P for liability of all or part of P’s claim against D.

Impleader can be done as of right w/in 14 days of serving answer; after that, must get leave of court.