Civil Procedure

Question 1

When and on what grounds may a party file a motion to alter or amend a final judgment?

Answer 1

Motion must be made within 28 days after entry of the judgment. It may be based on any of the following grounds:

(1) judgment based on manifest error of law or fact
(2) necessary to prevent manifest injustice
(3) discovery of new evidence unavailable at trial
(4) intervening change in controlling law

Question 2

How can a party file a demand for jury trial?

Answer 2

(1) serve the parties with a written jury trial demand no later than 14 days after the last pleading directed to the triable issue is served
AND
(2) file the jury trial demand w/ the court within a reasonable time after service of demand

Question 3

What 3 defenses are waived if they are not raise in a pre-answer motion or answer (whichever occurs first)?

Answer 3

(1) lack of personal jurisdiction

(2) improper venue

(3) insufficient process or service of process

Question 4

What 3 elements must be met to apply the collateral order doctrine?

Answer 4

Interlocutory order will be considered immediately appealable if:

(1) order conclusively resolves important issue
(2) issue is separate from the merits of the underlying claim
(3) order cannot be effectively reviewed on appeal from final judgment

Question 5

When can a court exercise supplemental jurisdiction over an additional claim?

Answer 5

Permitted when the supplemental claim and original claim are so related their form part of the same case or controversy, ie share a common nucleus of operative facts

Question 6

When will the relation back doctrine apply to an amended complaint with changes or additional parties?

Answer 6

(1) concerns same transaction or occurrence as original

(2) new party receives notice of suit within 90 days after original complaint filed

(3) new party knew, or should have known, suit would have been brought but for mistaken identity

Question 7

For diversity jurisdiction purposes, what are the 2 citizenships of a corporation?

Answer 7

(1) state or country of incorporation

(2) principal place of business; usually the location of the headquarters

Question 8

What are the 4 requirements for a preliminary injunction?

Answer 8

(1) likely to suffer irreparable harm if preliminary injunction not issued

(2) likely to suffer greater harm than D will if preliminary injunction not issued

(3) likely to succeed on merits

(4) injunction in best interest of public

Question 9

Under issue preclusion, what 4 requirements must be met to preclude the relitigation of an issue?

Answer 9

(1) same issue involved in the prior action

(2) issue was actually litigated

(3) issue determined by valid and binding final judgment

(4) determination of the issue was essential to the prior judgment

Question 10

Under issue preclusion, what is mutual vs. non-mutual?

Answer 10

Mutual = parties from the first action assert issue preclusion is subsequent action against other parties from the first action

Non-mutual = non-parties from the first action assert issue preclusion in subsequent action against parties from the first action

Question 11

For purposes of personal jurisdiction, what are the 4 “traditional bases” for obtaining PJ?

Answer 11

(1) domicile

(2) presence

(3) consent

(4) lack of PJ waived by Defendant

Question 12

What are the steps to analyzing personal jurisdiction when none of the 4 traditional bases are present?

Answer 12

(1) note whether there is a long-arm statute in the forum state

(2) must determine whether exercising PJ comports with the Due Process Clause

(3) analyze whether Defendant has sufficient minimum contacts by determining whether general or specific jurisdiction is present

(3)(A) is Defendant’s contact with the forum state so systematic and continuous that they are essentially at home in the forum state? If so = general jurisdiction

(3)(B) does the claim arise out of Defendant’s specific contact with the forum state?
(3)(B)(a) Defendant purposefully availed himself of the benefits of the benefits of the forum state
(3)(B)(b) Defendant knew or should have anticipated that activities would mean being sued there is foreseeable
If so = specific jurisdiction

(4) last question is to determine whether the exercise of PJ would offend traditional notions of fair play and substantial justice

Question 13

In a complaint, how must compensatory damages be plead?

Answer 13

General damages = natural and necessary results of wrongful act that do not have a fixed value may be alleged generally

Special damages = natural, but not necessary, results of a wrongful act that have a fixed value must be specifically stated