Civil Procedure

Question 1

When does the Home Court Advantage Rule prohibit removal from state to federal court?

Answer 1

When 1) Federal court’s subject matter jurisdiction arises from diversity of jurisdiction and 2) The defendant is a citizen of the state where the case was filed

Question 2

True or False: Personal Jurisdiction can be waived

Answer 2

True

Question 3

True of False: Subject Matter Jurisdiction can be waived

Answer 3

False

Question 4

When is a motion to dismiss for lack of subject matter jurisdiction waived?

Answer 4

If it is not asserted in a pre-answer motion or in the answer itself

Question 5

What is personal jurisdiction?

Answer 5

Jurisdiction over the person. It can be general or specific. General PJ requires continuous and regular contacts with the forum state (counter-intuitive). Specific PJ is satisfied with a single contact with the forum state

Question 6

True or false: Failure to submit proof of service ruins the validity of service

Answer 6

False

Question 7

When do you have to raise affirmative defenses?

Answer 7

In your answer

Question 8

What does a Motion to Dismiss require?

Answer 8

1) That a court take any well pleaded facts as true and 2) That a court resolve any doubts or inferences in the complainant’s favor

Question 9

True or False: A federal court will exercise supplemental jurisdiction over claims outside subject matter jurisdiction if the claims share a common nucleus of operative facts.

Answer 9

True

Question 10

What is the Summary Judgment standard?

Answer 10

1) No genuine dispute as to any material fact and 2) Movant is entitled to judgment as a matter of law

Question 11

When is diversity of citizenship determined?

Answer 11

At the time the complaint is filed

Question 12

When may a federal court grant a preliminary injunction?

Answer 12

When 1) the movant is likely to succeed on the merits, 2) the movant is likely to suffer irreparable harm in the absence of relief, 3) the balance of equities is in the movant’s favor, and 4) the injunction is in the best interests of the public

Question 13

Under Erie when does state law apply?

Answer 13

If 1) it is outcome determinative - i.e., forum-shopping or inequitable administration of the laws would result if it is not applied - and 2) there is no countervailing federal policy interest

Question 14

How must someone object to an interrogatory?

Answer 14

With specificity. Any ground not stated in a timely objection is deemed waived unless the court, for good cause, excuses the failure.

Question 15

What are the requirements for ordering a physical or mental exam?

Answer 15

The order may only be made upon motion, for good cause shown, and the person to be examined and all parties must be given prior notice specifying the time, place, conditions, and scope of the examination and the identity of the examiner.

Question 16

What is the proper way to withhold information on the basis of a privilege?

Answer 16

The party must expressly state the claim of privilege and describe the materials or communications not produced in a manner that will enable other parties to assess the applicability of the privilege or protection

Question 17

True or False: Specific Performance will not be granted when relief would be unfair.

Answer 17

True

Question 18

Define Unclean hands

Answer 18

Unclean hands is a defense to an equitable remedy when the party who seeks equitable relief himself engages in serious misconduct in close relation to the claim.

Question 19

Define Laches

Answer 19

Laches is the unreasonable delay in pursuing an equitable remedy in which the party was aware or should have been aware, that caused prejudice to the other party

Question 20

True or False: Venue is never based off the plaintiff’s residence

Answer 20

True

Question 21

True or False: A clerk can enter a default judgment

Answer 21

True. A clerk or the court can enter a default judgment

Question 22

When must a clerk enter a default judgment?

Answer 22

• When the plaintiff’s claim is for a sum certain OR a sum that can be made certain by calculation
• The plaintiff’s request for default judgment includes an affidavit establishing the amount due
• The defendant failed to appear, and
• The defendant is not legally incompetent or a minor

Question 23

Under federal law when is service by publication permissible?

Answer 23

Only when the defendant’s identity or address is unknown and unobtainable

Question 24

Define venue

Answer 24

Venue refers to the federal judicial district where a case may be heard

Question 25

How many preemptory challenges is each party entitled to in a civil action jury selection?

Answer 25

Three

Question 26

Timing of Discovery

Answer 26

In general, a party may not seek discovery until after a Rule 26(f) discovery conference, unless ordered by the court, stipulated by the parties, or authorized by a specific rule

Question 27

When is a judgment considered final?

Answer 27

When there is nothing further for the court to do but enforce the judgment. In CA, judgment is not final until the conclusion of the appeal or, if no appeal is taken, when the time for filing a notice of appeal expires

Question 28

What factors are considered in determining what constitutes a transaction or series of transactions?

Answer 28

1) whether the facts are related in time, space, origin, or motivation
2) whether the facts form a convenient trial unit, and
3) whether treating the facts as a unit conforms to the parties’ expectations

Question 29

True or False: The threat of future injury can give a plaintiff standing to seek damages.

Answer 29

False

Question 30

For which of the following is the government required to provide a pre-deprivation hearing?

1) Termination of disability benefits
2) Termination of welfare benefits
3) Terminating a government employee who is employed “at will”
4) Dismissing students for academic reasons

Answer 30

Termination of welfare benefits

Question 31

True or False: Drawing districts to scatter minorities and thus dilute their vote, even if done with a discriminatory purpose, is considered a political question and non-justiciable.

Answer 31

False

Question 32

True or False: In applying the “adequate and independent state grounds” limitation on the US SC’s review of a state court decision - the US Supreme Court will not review a state court decision when the party claiming a federal right is successful under state law

Answer 32

True

Question 33

Under the Takings Clause, when does a taking occur?

Answer 33

A taking occurs when a regulation amounts to a permanent, total loss of economic value in the land

Question 34

The Fifteenth Amendment specifically gives Congress the power to eliminate racial discrimination in ______.

Answer 34

Voting

Question 35

Under the Fourteenth Amendment, Congress _______ redefine or create new individual rights. This amendment ________ Congress the power to remedy violations of individual rights.

Answer 35

cannot; gives

Question 36

The ______ test requires that a law be substantially related to an important government interest.

Answer 36

intermediate scrutiny

Question 37

A _____ classification based on citizenship status is upheld unless the classification is _____.

Answer 37

federal, arbitrary and unreasonable

Question 38

What is true regarding regulation of speech in a nonpublic forum?

Answer 38

The regulation must be neutral as to viewpoint

Question 39

Campaign _______ a candidate may be limited in order to _____.

Answer 39

contributions to, prevent corruption

Question 40

Relating to the regulation of commercial speech, the regulation must directly advance the governmental interest. True or False?

Answer 40

True

Question 41

True or False: A taxpayer may challenge any federal action on the basis of a violation of the Establishment of Religion Clause

Answer 41

False