Civil Procedure

Question 1

What are the requirements for a plaintiff seeking a preliminary injunction?

Answer 1

(1) He is likely to succeed on te merits;

(2) He is likely to suffer irreparable harm in the absence of relief;

(3) The balance of equities is in his favor;

AND

(4) The injunction is in the best interest of the public.

Question 2

How is a corporation’s “principal place of business” determined?

Answer 2

• “Principal place of business” refers to:
  
  • the “nerve center” of the corporation.
• The nerve center is generally:
  
  • the location from which the high-level officers direct, control, and coordinate the activities of the corporation.
    
    • Typically, the nerve center is the corporate headquarters.

Question 3

In assessing whether a case can be filed in federal court, when is diversity determined?

Answer 3

At the time the case is filed

Question 4

What are the requirements of claim preclusion?

Answer 4

(1) A valid final judgment on the merits;

(2) Sufficiently identical causes of action;

AND

(3) Sufficiently identical parties.

Question 5

How does remand differ from removal?

Answer 5

Removal:
* Is from state to federal court;
* By a defendant;
* Usually within a specified time frame; AND
* With the agreement of all defendants.

Remand:
* Happens from federal to state court;
* Does not require consent or timeliness.

Question 6

What are the three types of personal jurisdiction?

Answer 6

(1) In personam jurisdiction

(2) In rem jurisdiction

(3) Quasi-in-rem jurisdiction

Question 7

What are six grounds for a court to grant a motion for a new trial?

Answer 7

(1) Error at trial that renders the judgment unfair;

(2) Newly discovered evidence that existed at the time of the trial was excusably overlooked and would likely have altered the outcome of the trial;

(3) Prejudicial misconduct of counsel, a party, the judge, or a juror;

(4) A verdict that is against the clear weight of the evidence;

(5) A verdict that is based on false evidence;

OR

(6) A verdict that is excessive or inadequate.

[Note: Rule 59 does not specifically list the grounds that will justify a new trial, but in practice, the overarching theme is that the court may grant a new trial to prevent a miscarriage of justice.]

Question 8

What seven defenses may be raised in a motion filed under Rule 12(b)?

Answer 8

(1) Lack of subject matter jurisdiction;

(2) Lack of personal jurisdiction;

(3) Improper Venue;

(4) Insufficient Process;

(5) Insufficient service of process;

(6) Failure to state a claim upon which relief can be granted;

AND

(7) Failure to join a necessary or indispensable party under Rule 19.

Question 9

What is the standard used in deciding a motion to dismiss for failure to state a claim upon which relief can be granted?

Answer 9

Under Rule 12(b)(6), a claim for relief can be dismissed if it either:

A. Fails to assert a legal theory of recovery that is cognizable at law;

OR

B. Fails to allege facts sufficient to support a cognizable claim.

• In deciding a motion under Rule 12(b)(6), courts:
  
  • treat all well-pleaded facts of the complaint as true;
  • resolve all doubts and inferences in the plaintiff’s favor; AND
  • view the pleading in the light most favorable to the plaintiff.

Question 10

For purposes of venue, where does a defendant business entity reside?

Answer 10

In any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question

[Note: If the entity is a plaintiff, then it is deemed to reside only in the judicial district in which it maintains its principal place of business.]

Question 11

What are the five bases for in personam jurisdiction?

Answer 11

(1) Voluntary Presence

(2) Domicile

(3) Consent

(4) Long-arm statutes

(5) Attachment

Question 12

How long does a defendant have to respond to a complaint?

Answer 12

21 days (under Rule 12 of the FRCP)

Question 13

Which defenses are waived unless raised in the pre-answer motion or answer?

Answer 13

Under Rule 12(h)(1), the defenses of:

• Lack of Personal Jurisdiction;
• Improper Venue; AND
• Insufficient Service of Process

Question 14

Where is an individual’s domicile and how is the domicile changed?

Answer 14

An individual’s domicile is:

• The state where the individual is present; and
• Intends to reside for an indefinite period.

This state remaiins the domicile until the individual:

1. Establishes presence in a new place; AND
2. Manifests intent to remain there for an indefinite period.

Question 15

What is a compulsory counterclaim?

Answer 15

A pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if:

(i) The claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim;

AND

(ii) The claim does not require adding another party over whom the court cannot acquire jurisdiction.

[Note: A party who fails to assert a compulsory counterclaim waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court.]

Question 16

When can a defense of lack of subject matter jurisdiction be raised?

Answer 16

The defense of lack of subject matter jurisdiction may be raised at any time, even on appeal. Rule 12(h)(3).

Question 17

Who is responsible for serving the summons and complaint and when must it be served?

Answer 17

The plaintiff is responsible for serving the summons and complaint upon the defendant within 90 days after filing the complaint.

Question 18

Federal courts of appeals have jurisdiction over appeals of what types of judgments?

Answer 18

Under 28 USC §1291, the federal courts of appeals have jurisdiction over:
* Appeals of the final judgments of the district courts.

A final judgment is:
* A decision by the court on the merits that leaves nothing for the court to do but execute the judgment.

Question 19

What is federal question jurisdiction?

Answer 19

Under 28 U.S.C. §1331, the district courts have original jurisdiction over all actions arising under the Constitution, laws, or treaties of the United States.

Question 20

What are the two ways in which a defendant can consent to in personam jurisdiction?

Answer 20

1. Express consent: defendant agrees in advance to submit to the jurisdiction of the court if a lawsuit is brought by the plaintiff, or stipulates to personal jurisdiction once an action is brought

2. Implied consent: through conduct, such as filing a counterclaim or driving a vehicle within a state

Question 21

When the relief sought is an injunction, how is the amount in controversy determined for jurisdiction purposes?

Answer 21

In the case of injunctive relief, when it is difficult to assess a dollar amount:
* Some courts consider:
* Only the value of the injunction to the plaintiff in determining the amount in controversy

• Other courts consider:
  
  • The greater of the value to the plaintiff of the removal of the harm or the cost to the defendant of complying with the injunction in determining the amount in controversy.

Question 22

When is notice not required for a temporary restraining order?

Answer 22

A temporary restraining order may issue without notice to the adverse party if:

(i) The moving party can establish, in an affidavit or a verified complaint, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition; and

(ii) The movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.

Question 23

What is an injunction?

Answer 23

A form of equitable relief mandating that a defendant perform a specified act or prohibiting a defendant from performing a specified act

Question 24

What interlocutory orders are immediately appealable?

Answer 24

28 USC §1292(a) makes certain equitable orders reviewable immediately as a matter of right, including:

(i) An order granting, modifying, refusing, or dissolving an injunction;

(ii) An order appointing or refusing to appoint a receiver; and

(iii) A decree determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed

Question 25

Typically, if a defendant is voluntarily present in the forum state and served with process there, then the court has personal jurisdiction over the defendant.

What are two exceptions?

Answer 25

(1) If a plaintiff fraudulently brings a defendant into the state for the purpose of serving process on the defendant

(2) If a defendant is merely passing through the state to attend other judiciary proceedings

Question 26

How long may a temporary restraining order remain in effect?

Answer 26

A temporary restraining order may remain in effect for only a limited number of days, but no longer than 14 days unless:

• good cause exists or the adversary consents.

Question 27

How much time does a party have to respond to interrogatories?

Answer 27

The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.

Note: The court may order or the parties may stipulate to a shorter or longer time.

Question 28

When establishing whether a federal question exists, how are answers and counterclaims assessed?

Answer 28

Answers and counterclaims are not considered in determining the existence of federal question jurisdiction.

Question 29

If a case starts out as not removable, but later becomes removable, what is the timeframe for removing?

Answer 29

The defendant has 30 days to file a notice of removal once:

• The defendant receives a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is now removable.

Question 30

What is the due process requirement for in personam jurisdiction?

Answer 30

Due process requirements are satisfied if:
* The nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

Question 31

What is the standard of review used by appellate courts for legal rulings?

Answer 31

In general, appellate review of legal rulings is de novo (i.e., without deference to the trial court’s legal rulings).

Question 32

When may a party bring a motion for judgment as a matter of law?

Answer 32

A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury.

[Note: If a party moves for a judgment as a matter of law after the close of the plaintiff’s case and the motion is denied, then the party may be unable to pursue a renewed motion for judgment as a matter of law after entry of judgment unless the party also moves for judgment as a matter of law after the presentation of all evidence.]

Question 33

Under the Erie Doctrine, what law governs in a federal question claim?

Answer 33

If the action is a federal question claim, then federal substantive and procedural law will control, as well as federal common law.

Question 34

When are two claims considered related for purposes of supplemental jurisdiction?

Answer 34

When the claims arise out of a common nucleus of operative fact

Question 35

When a class action is brought under a common legal or factual question, what seven pieces of information must be stated in the notice provided to the members?

Answer 35

(i) The nature of the action;

(ii) The definition of the class;

(iii) The class claims, issues, or defenses;

(iv) That a class member may enter an appearance through an attorney if the member so desires;

**(v) **That the court will exclude from the class any member who requests exclusion;

(vi) The time and manner for requesting exclusion; and

(vii) The binding effect of a class judgment on members.

Question 36

How may an individual within the U.S. be served?

Answer 36

Service may be made within the state in which the federal district court sits by:

(i) Personally serving the summons and complaint on the defendant;

(ii) Leaving the summons and complaint at the defendant’s usual place of abode with a person of suitable age and discretion who resides there; OR

(iii) Delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.

Question 37

Under Rule 20 permissive joinder, does the defendant to be joined have to meet the requirements of federal subject matter jurisdiction?

Answer 37

If the claims are made solely on the basis of diversity jurisdiction, there must be complete diversity between the plaintiffs and the defendants, and each claim must exceed the jurisdiction amount in controversy of $75,000.

Question 38

What three factors will a court consider when deciding to set aside a default judgment?

Answer 38

Three factors the courts generally consider are:

(i) Whether the defendant’s failure to act was willful;

(ii) Whether setting the default aside would prejudice the plaintiff;

AND

(iii) Whether the defendant has presented a meritorious claim.

Question 39

Under Rule 20 permissive joinder, does the plaintiff to be joined have to meet the requirements of federal subject matter jurisdiction?

Answer 39

If multiple plaintiffs join together under Rule 20, then supplemental jurisdiction can exist for a claim that does not meet the statutory jurisdictional amount, provided:
* The parties still meet the requirements of complete diversity.

Question 40

What is a judgment as a matter of law, and what is the standard used in deciding these motions?

Answer 40

Under Rule 50(a), once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if:
* The court finds that there is insufficient evidence for a jury reasonably to find for that party.

The court must view the evidence:
* In the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party.

Question 41

When does a court have diversity jurisdiction (two requirements)?

Answer 41

When:

(1) The parties to the action are:
* (a) citizens of different states;
* (b) citizens of a state and citizens or subjects of a foreign state;
* (c) citizens of different states and citizens or subjects of a foreign state are additional parties;

OR

• (d) a foreign state as plaintiff and citizens of a state or different states; and

(2) The amount in controversy in the action exceeds $75,000

Question 42

How many peremptory challenges and challenges for cause does a party have?

Answer 42

• Each party in a civil case gets three peremptory challenges.
• Each party is entitled to an unlimited number of challenges for cause.

Question 43

Generally, where is venue proper?

Answer 43

(i) A judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located;

OR

(ii) A judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located.

Question 44

For the purposes of diversity jurisdiction, how is a corporation’s citizenship determined?

Answer 44

A corporation is considered a citizen of:
* the state(s) and/or foreign country of incorporation; AND
* the state or foreign country where it has its principal place of business.

Note: There can be more than one state or foreign country of incorporation, but only one state or foreign country will qualify as the principal place of business.

Question 45

What are the three types of mandatory disclosures?

Answer 45

Rule 26(a) requires the parties to make:

(i) Initial disclosures;

(ii) Disclosures of expert testimony 90 days before trial;

AND

(iii) Pretrial disclosures 30 days before trial.

Question 46

May a single plaintiff aggregate claims against multiple defendants to satisfy the amount-in-controversy requirement?

Answer 46

• When a single plaintiff sues multiple defendants, the value of the plaintiff’s claims against each defendant:
  
  • May not be aggregated if the claims are separate and distinct.
• If the defendants are jointly liable to the plaintiff, then:
  
  • Aggregation to meet the amount-in-controversy requirement is permissible.

Question 47

What is an impleader?

Answer 47

An impleader (third-party claim) are claims that are made by a defending party against a nonparty for:
* All or part of the defending party’s liability on an original claim.

Question 48

When must an objection to improper venue be raised?

Answer 48

An objection to improper venue must be raised:

• in a pre-answer motion to dismiss under Rule 12(b)(3);

OR

• in the first responsive pleading, if a motion under Rule 12(b)(3) is not filed.

Question 49

When may a party file a renewed motion for judgment as a matter of law?

Answer 49

The movant may file a renewed motion for judgment as a matter of law no later than:
* 28 days after the entry of judgment.

If the motion addresses a jury issue not decided by a verdict, then the renewed motion must be filed no later than:
* 28 days after the jury was discharged.

Question 50

What is the rule for removal when there are multiple defendants?

Answer 50

In general, all defendants who have been properly joined and served are required to:
* Join in or consent to the removal.

If the defendants are served at different times and a later-served defendant files a notice of removal, then:
* Any earlier-served defendant may join in the removal even though that defendant did not previously initiate or consent to removal.

[Note: In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal.]

Question 51

When and how is the amount in controversy determined for diversity jurisdiction purposes?

Answer 51

The amount in controversy must:
* Exceed $75,000, exclusive of interest, costs, and collateral effects of a judgment.

The amount in controversy is determined:
* At the time the action is commenced in federal court, or, if the action has been removed to federal court, at the time of the removal.

[Note: Attorney’s fees may be included in the calculation if recoverable by contract or statute, and punitive damages may possibly be included as well.]

Question 52

Under the Erie Doctrine, what law governs in a diversity action?

Answer 52

In a diversity action, the district court is required to apply:
* the substantive law of the state in which the district court is located, if:
* There is no federal law on point.

• The district court will apply federal procedural law, even if:
  
  • A state rule or statute is in conflict.

Question 53

Who has the burden of proof in a claim for summary judgment?

Answer 53

The movant

Once the movant make a prima facie showing that summary judgment is appropriate:
* The burden shifts to the opposing party to set forth:
* Specific evidence showing the existence of a genuine issue of fact for trial.

Question 54

When is a default and default judgment entered against a party?

Answer 54

A default occurs when a party has:
* Failed to plead or otherwise defend an action, and that failure is shown by affidavit;
* The court clerk must then enter the party’s default.

Once a default is entered against a party, the plaintiff may:
* Seek a default judgment from the court clerk (if relief sought is a sum certain or an amount that can be made certain by computation and the defaulting party is not a minor or incompetent); OR
* Otherwise apply to the court itself.

Question 55

How many interrogatories may a party serve on another party?

Answer 55

Pursuant to Rule 33(a), any party may serve no more than:
* 25 written interrogatories on any other party.

Question 56

When a case is removable from the outset, how does a defendant begin the process for removal?

Answer 56

A defendant who wants to remove a state court action to federal district court generally must:
* File a notice of removal with the district court within 30 days after receipt or service of the initial pleading or summons.

Question 57

What are the three types of jury verdicts?

Answer 57

(1) Special Verdict:
* A written finding made by the jury on each issue of ultimate fact.
* The court submits written questions to the jury correlating to each ultimate fact of the case and asks the jury to make a finding on each fact.

(2) General Verdict:
* A decision by the jury as to the prevailing party; AND
* If the plaintiff is the prevailing party:
* The amount of damages.

(3) General with Special Interrogatories:
* This couples a general verdict with a special verdict.
* It is used to ensure that:
* The jury independently considered the material facts of the case in arriving at its verdict.

Question 58

What is the “well-pleaded complaint rule?”

Answer 58

This rule refers to the determination of federal question jurisdiction made by considering only:
* The necessary elements of the plaintiff’s cause of action, not anticipated defenses, answers, or counterclaims.

This rule applies both to:
* Original jurisdiction of the federal court; AND
* To removal jurisdiction.

Question 59

When can a party amend a pleading?

Answer 59

Under Rule 15(a), a party may amend a pleading:

(i) Once as of right within 21 days if no responsive pleading is required;

OR

(ii) If a responsive pleading is required, within 21 days of service of the responsive pleading or within 21 days of being served with a motion under Rule 12(b), whichever is earlier.

Additionally, the court should:
* Freely give leave to amend a pleading when justice so requires.

Question 60

What are the four requirements for a class action?

Answer 60

(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);

AND

(iv) The representatives must fairly and adequately protect the interests of the class (adequacy)

Question 61

What are the required elements for a complaint

Answer 61

Under Rule 8(a), a complaint must include:

(i) A short and plain statement of the grounds that establish the court’s subject matter jurisdiction;

(ii) A short and plain statement of the claim establishing entitlement to relief;

AND

(iii) A demand for judgment for the relief sought by the pleader.

Question 62

How does a party make a demand for a trial by jury?

Answer 62

Any party may make a written demand for a trial by jury.

The demand, which:

• May be made separately or in a pleading;
• Must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury;

AND

• Filed with the court within a reasonable time after service.

Question 63

What is removal jurisdiction and who generally has the right to remove?

Answer 63

Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed to:
* The district court for the district and division in which the state court action is pending.

Generally, the right of removal is a right of the defendant.

Question 64

What is the purpose of a long-arm statute?

Answer 64

A long-arm statute authorizes personal jurisdiction over:

• Nonresidents who engage in some activity in the state or cause some action to occur within the state.

A long-arm statute either:

• Directly authorizes;

OR

• Has been interpreted as authorizing jurisdiction to the extent permissible under the Due Process Clause.

Question 65

When may a plaintiff join as a permissive joinder?

Answer 65

Pursuant to Rule 20(a)(1), a person may join in one action as plaintiff if:

**(i) **They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences;

AND

(ii) Any question of law or fact common to all plaintiffs will arise in the action.

[Note: The same circumstances apply to permissive joinder of defendants under Rule 20.]

Question 66

When must a party be joined as a compulsory joinder under Rule 19?

Answer 66

Under Rule 19(a), a person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction or destroy venue must be joined as a party if:

(i) Complete relief cannot be provided to existing parties in the absence of that person;

(ii) Disposition in the absence of that person may impair the person’s ability to protect his interest;

OR

(iii) The absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations.

Question 67

What are the three types of class actions?

Answer 67

(1) Risk of Prejudice:
* The class is maintainable if:
* The prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from:
* Inconsistent adjudications;
OR
* Prosecution of the claims through separate actions would impair the interests of the class members.

(2) Final Equitable Relief:
* A class seeking final injunctive or declaratory relief may be certified if:
* The class shares a general claim against the opposing party.

(3) Common Legal or Factual Questions:
* A class can be certified if:
* Questions of law or fact that are common to the class members predominate over any questions affecting only individual members; AND
* A class action is the superior method for bringing about a fair and efficient adjudication of the controversy.