Civil Procedure

Question 1

Factors for constitutionality of specific PJ

Answer 1

Contacts
Relatedness
Fairness

Question 2

Contact as a factor of PJ includes:

Answer 2

purposeful availment and foreseeability

Question 3

2 ways to acquire general PJ over person

Answer 3

Def is at home
Def is served with process in forum state

Question 4

2 ways to acquire general PJ over Corporation

Answer 4

State of incorporation
State of principal place of business (HQ)

Question 5

Proper Notice consists of:

Answer 5

Proper Service of Summons and a Copy of the Complaint

Question 6

Can plaintiff serve notice?

Answer 6

No. Service must be sent by 18+ non-party

Question 7

Within how many days of filing must the notice be served

Answer 7

90 days

Question 8

If def cannot be served, what is a substitute service option

Answer 8

1. at def’s usual place of adobe
2. with smn of suitable age and discretion
3. Who resides there

Question 9

Can the service be by mail?

Answer 9

Only if state statute authorizes it (no federal statute)

Question 10

Court clerk mailed a letter to an Italian in Italy. Is it proper service?

Answer 10

Only if the clerk gets a signed receipt

Question 11

Plaintiff mailed a letter to an Italian in Italy. Is it proper service?

Answer 11

No, must be by clerk

Question 12

If defendant waives service, it also waives the following defenses:

Answer 12

None

Question 13

Waiver of services precludes defense of lack of PJ. True or False?

Answer 13

False

Question 14

When is a waiver of service effective?

Answer 14

When a plaintiff files a waiver with the court. Important - this is when time starts to run

Question 15

Alex, a resident of New Jersey, was subpoenaed to testify against a criminal defendant in New York. Rachel personally served him with process of MVA case in which she was injured while Alex was in New York. Is the service proper?

Answer 15

No. 1) Defendant is immune from the process while appearing in another case
2) Rachel cannot personally serve process as she is a party to the case

Question 16

Alex won a green card and moved to New York. He was involved in MVA in New Jersey. New Jersey citizen sues Alex in federal court. Is complete diversity satisfied?

Answer 16

Yes. Although a green card holder is not a resident of any state, alienage jurisdiction (citizen v. alien) applies as long as they don’t live in the same state

Question 17

Plaintiff is a U.S. citizen domiciled in Italy. Plaintiff sues Defendant, a citizen of California, in federal court. Is complete diversity satisfied? Is alienage jurisdiction satisfied?

Answer 17

1) No, the plaintiff is not a citizen of any state. 2) No, the plaintiff is a citizen of the U.S.

Question 18

Can an unincorporated association be a citizen of all 50 U.S. states?

Answer 18

Yes, because it takes on citizenships of all members

Question 19

What is the citizenship of corporations and incorporated associations

Answer 19

Corporations - a place of incorporation and HQ. Incorporated Asscns - citizenship of its members

Question 20

When a minor, decedent, or incompetent is represented by a person, what is the citizenship?

Answer 20

A representative’s citizenship is irrelevant

Question 21

When a class action is represented by a person, what is the citizenship?

Answer 21

A representative’s citizenship is used

Question 22

What is a minimum amount in controversy required for diversity citizenship SJM?”

Answer 22

$75,000.01 (unlike in contracts, SoF is $500 or more)

Question 23

For a plaintiff to aggregate its claims against a defendant, must they arise from the common nucleus of operative facts?

Answer 23

No. claims may be unrelated

Question 24

Amount in controversy aggregation rule

Answer 24

A single plaintiff can aggregate any claims against single defendant

Question 25

Rule to calculate amount in controversy when equitable relief is demanded

Answer 25

Satisfied if 1) the plaintiff will gain more than $75k; or 2) the defendant will lose $75k

Question 26

Alex (NY) sues Jake (NJ) and Susan (NY) in NY court, 11 months and 2 weeks later, Susan wins motion to dismiss. Jake removes the case to Federal Court. Should the case be remanded? (Timing?)

Answer 26

Removal must be made within 30 days. If diversity jurisdiction - cannot remove if 1 year has passed since filing. Thus, Jake has 2 weeks to remove the case. 2 Exceptions: 1) if Jake can show that Susan was added only to break diversity - he will have 30 days to remove (no 1y limit) 2) If a federal question is present, Jake has 30 days to remove (no 1y limit).

Question 27

For a plaintiff to bring different claims against a defendant, must they arise from the common nucleus of operative facts?

Answer 27

No, a common nucleus of operative facts is only required for supplemental jurisdiction. i.e. when the claim does not independently satisfy SMJ.

Question 28

When is supplemental jurisdiction available?

Answer 28

Always available for defendants' counterclaims, but only available for plaintiff in Federal Question SMJs. There's one exception for plaintiff's to use supp SMJ in diversity cases - co-plaintiff may invoke supplemental jurisdiction (based on a claim of the first plaintiff) to meet the amount in controversy

Question 29

P1 (CA) and P2 (CA) v. D1 (FL) on state law claim. P1's claim is for $100k. of P2's claim is for 10k, can he use supplemental Jurisdiction?

Answer 29

Yes, despite not having amount or diversity, he can supplement his claim to the plaintiff's claim (who satisfied diversity and amount requirements) if joinder is proper = 1) claim arises from same transaction or occurrence, and 2) raise at least one common question of law or fact.

Question 30

Plt (NY) was driving in NJ when his ex-wife (NJ) rear-ended him while working for D2(NY). Plt sued Ex-wife for MVA for 50k and for an unpaid debt of 50k. Plt also sued D2 for a single claim in the amount of 100k. Is SMJ satisfied over D1 and/or D2.

Answer 30

v. D1 -- Yes, the plaintiff may aggregate unrelated claims to meet amount in controversy v. D2 -- No, no diversity jurisdiction & no supplemental jurisdiction allowed for the plaintiff

Question 31

For purposes of Erie doctrine, what 5 issues are clearly substantive

Answer 31

1. conflict or choice of law rules 2. elements of a claim or defense 3. statutes of limitation 4. tolling of statute of limitations 5. standard of granting a new trial because the jury's award was excessive or inadequate

Question 32

The venue is proper where:

Answer 32

1. all Ds reside within the same state (can be different districts) 2. substantial part of events arose (can be more than one district) If none applies, where one of the defendant's reside. For corporations - where it is subject to PJ

Question 33

Can the plaintiff and defendant consent to a transfer to a different court that has SMJ?

Answer 33

If all parties consent and the court finds cause for the transfer - YES. Def cannot unilaterally consent

Question 34

What choice of law applies when the case is transferred?

Answer 34

The law of the transferor court (where the case came from), unless the transferor court was an improper court (lack PJ, Venue, or pursuant to a forum selection clause)

Question 35

When the action is commenced

Answer 35

filling of complaint

Question 36

What are the waivable Rule 12b defenses?

Answer 36

PJ Venue Process Service of Process

Question 37

What are the unwaivable Rule 12b defenses?

Answer 37

Failure to join indispensable party Failure to state a claim Lack of SMJ

Question 38

How much time do parties have to amend summons complaint or reply

Answer 38

21 days after the service of the motion or response

Question 39

How much time does a defendant have to Reply

Answer 39

21 days, but 14 days if motion was denied

Question 40

3 factors for amending complaint to add a defendant:

Answer 40

1. Amendment concerns 2. Def had knowledge of the case so won't be prejudiced 3. Def should have known that but for a mistake he would have been named

Question 41

What is a Safe Harbor Provision for sanctions for violating a Rule 11 certification?

Answer 41

Party seeking sanctions must serve motion on opponent and wait 21 days before filing it with the court to allow the other party to fix the violation

Question 42

The indispensable party is --

Answer 42

A necessary non-party to the case that cannot be joined and the case cannot proceed without them

Question 43

What is required for multiple plts or defs to be joined?

Answer 43

1. claims must arise from the same transaction or occurrence and raise at least one common question of law or fact

Question 44

Compulsory counterclaims are

Answer 44

Claims that arise from the same T/O and must be asserted in the pending case or are waived

Question 45

Permissive counterclaims are

Answer 45

Claims that do not arise from the same T/O and are not lost if not asserted in the pending case

Question 46

what claims/counterclaims/impleader claims/crossclaims can be asserted with lack of SMJ

Answer 46

None. all claims must have either F.Q., Diversity+Amount, or Supp J.

Question 47

Are there compulsory crossclaims?

Answer 47

No. any crossclaim (against co-party) can be asserted in a separate action. NOTE: if a cross-claim is filed against co-party, co-parties claims become counter-claims, and may even be compulsory.

Question 48

Impleader claims are asking for indemnity or contribution from a third party that must be impleaded or will be waived. T or F?

Answer 48

False. Impleader claims are always permissive.

Question 49

What is the timing for the impleader claim?

Answer 49

14 days from serving your answer or permission by the court

Question 50

Intervention vs. Impleader vs. Joinder claims

Answer 50

Intervention - 3rd party comes in as plt or def. Impleader - defendant impleads a 3rd party for contribution or indemnification (must formally serve 3rd party within 14days of answer) Joinder - multiple plts or defs at the outset (must be from same T/O and one common Q. of law of fact)

Question 51

Intervention as of right is --

Answer 51

when the absentee's interest will be harmed unless it is joined

Question 52

Permissive intervention is --

Answer 52

when the absentee's claim or defense has at least one common question of law or fact.

Question 53

If intervener decides to join as a plaintiff in an action, but lacks the necessary amount, does the limitation that prohibits supplemental J. apply?

Answer 53

No. One exception is when multiple plaintiffs supplement their claims together

Question 54

4 requirements for class actions

Answer 54

Numerosity Commonality Typicality Adequate representative

Question 55

What is unique about SMJ determination in class actions

Answer 55

Federal question is the same, but diversity and amount is judged by class action rep. only. other members are ignored.

Question 56

Required Initial Disclosures are

Answer 56

Info about witnesses and docs used to support (not harm) your case Insurance coverage Computation of monetary relief and supporting docs

Question 57

A court can hold in contempt a party that refused to submit to a medical examination. T or F?

Answer 57

False. This is the only exception where the court cannot hold a party in contempt for failure to comply with discovery. But, it may still impose merit sanctions and/or attorneys fees

Question 58

The defendant sent 30 interrogatories asking for the legal basis of claims. What is the plaintiff's best objection?

Answer 58

A party only has 25 questions. NOTE: legal basis can be asked, but not work product opinions

Question 59

How long is TRO effective for

Answer 59

up to 14 days. But, can be extended upon showing of good cause for another 14 days.

Question 60

What is a required showing to get a preliminary injunction?

Answer 60

Irreparable harm Likely to win on the merits Balance of hardships Public interest

Question 61

When can a clerk enter a default judgment

Answer 61

If: D hasn't appeared claim for a sum certain Plt gives an affidavit of the amount owed Def is not minor or incompetent

Question 62

If a plaintiff is seeking a declaratory judgment, how can it enter a default judgment?

Answer 62

Ask the court for a default. Then ask a judge to enter a default judgment. The judge will hold a hearing and has the discretion to grant or deny. Defendant is entitled to a notice if he appeared in the case in some way.

Question 63

Is a showing of an excuse and good cause enough to set aside default judgment?

Answer 63

NO. need a showing of a viable defense

Question 64

What opposing party must show to ask for extension of time to respond to SJ motion?

Answer 64

The party must file an affidavit stating that it needs more time to find evidence and specify what those evidence would be

Question 65

If plaintiff failed to demand a jury trial in its complaint, can he amend it?

Answer 65

Yes, he has 14 days since the last pleading that addressed a jury triable issue (typically the answer)

Question 66

what is an offer of judgment?

Answer 66

offer to settle up to 14 days before trial. If plaintiff rejects, it will be on the hook for costs of trial if it does not win a more favorable verdict

Question 67

JMOL and RJMOL requirement

Answer 67

JMOL must be filed after a party presented its evidence. RJMOL can be filed only after the verdict; only if JMOL was filed; and only on the same issue.

Question 68

what is the timing of a motion for new trial or RJMOL

Answer 68

28 days after the verdict

Question 69

What can be appealed if it is not a final judgment?

Answer 69

1. preliminary injunctions 2. an order where a district judge certifies a controlling issue of law; and substantial grounds exist for difference of opinion; and court of appeals agrees to hear it. 3. collateral order that involves an important question of law, and is unreviewable (immunity from being sued)

Question 70

What issue preclusion law governs in Case 2?

Answer 70

Case 1 (federal v. state)

Question 71

When does Res Judicata apply? (claim preclusion)

Answer 71

Same parties is same configuration Final judgment on merits (default counts) Asserting the same claim (event)

Question 72

When does Collateral Estoppel apply? (issue preclusion)

Answer 72

Final judgment on merits (default counts) Same issue actually litigated and determined Issue is essential to judgment Def must have been a party (or in a privity to a party) to the first case Also, if plt was not a party to the first case, he can use C.E. defensively; or it is fair to use it offensively

Question 73

Plt (NY) sued its employer (NJ) for unpaid wages in NJ state court. The employer wants to remove the case. Is the removal proper?

Answer 73

Yes. The limitation on removal by defendants who are citizens of the state in whose court the action was brought applies only to diversity actions.

Question 74

When an action involves multiple claims or parties, and a summary judgment is entered that disposes of one of the claims, can the judgment be immediately appealed?

Answer 74

For immediate appeal, the court must provide that it is a final judgment and expressly determines that there is no just reason for delay.

Question 75

At the conclusion of the trial, the Company submitted proposed jury instructions. The court refused to give these instructions. The Company did not object to the instructions given by the court. Can the Company appeal and what will be the standard?

Answer 75

Yes. The appeals court may review the court's refusal to include the instructions, applying a plain error standard of review. Had the Company objected, the court would apply under abuse of discretion standard

Question 76

In a negligence case against auto manufacturer, can plaintiff amend complaint to add strict liability claim after SOL has ran.

Answer 76

Yes, doctrine of "relates back" would allow to amend complaint to amend a claim that relates back

Question 77

When can a party intervene in litigation as of right?

Answer 77

if (i) it has an interest in the property or transaction; (ii) the resolution may impair the nonparty's ability to protect its interest; and (iii) the nonparty's interest is not adequately protected by an existing party in the action.

Question 78

Due to error, the applicable statute of limitations period passed without the filing of any action on the owner's behalf. The owner retained another lawyer and sued the large law firm for malpractice. What must the plaintiff be able to show

Answer 78

He would have recovered if an action had been timely filed