Civil procedure

Question 1

What is a compulsory counterclaim?

Answer 1

a claim which must be asserted in the pending action or is lost. (Cannot be brought in a separate action later)

Question 2

What is a Permissive counterclaim?

Answer 2

a claim which can but doesn’t have to be asserted in the pending action, because it is not related to the same transaction or occurrence as the current claim

Question 3

In federal civil procedure, how many claims can a single plaintiff bring against a single defendant?

Answer 3

A plaintiff may join any number and type of claims against a single defendant.

Question 4

What is the requirement for joining multiple claims against a single defendant?

Answer 4

The court must have subject matter jurisdiction over each claim (e.g., federal question, diversity, or supplemental jurisdiction).

Question 5

When multiple plaintiffs or multiple defendants are involved, what is required for joinder of claims?

Answer 5

At least one of the claims must arise out of a transaction or occurrence involving all parties joined.

Question 6

When is federal venue proper based on the defendants’ residence?

Answer 6

Venue is proper in the district where any defendant resides if all defendants reside in the same state.

Question 7

When is federal venue proper based on the location of events?

Answer 7

Venue is proper in the district where a substantial part of the events or omissions giving rise to the claim occurred.

Question 8

What is the fallback rule for federal venue if no district meets the main venue rules?

Answer 8

If no district qualifies under the main rules, venue is proper in any district where any defendant is subject to the court’s personal jurisdiction for that action.

Question 9

Who can serve process?

Answer 9

Any person who is not a party to the suit that is 18 years old or more

Question 10

When must process be served?

Answer 10

Within 90 days after filing the complaint

Question 11

what constitutes “notice” for the purposes of a civil action?

Answer 11

(1) A summons, and (2) A copy of the complaint

Question 12

How does a person establish domicile in a state for the purposes of state citizenship?

Answer 12

(1) Physical presence in the state, and (2) intent to remain there indefinitely

Question 13

Where is a corporation a citizen of for the purposes of diversity jurisdiction?

Answer 13

(1) any state or country where they are incorporated, and (2) The one state or country where their Principal Place of Business is: Where the corporation’s managers direct, coordinate, and control the business.

Question 14

Even if the requirements for diversity or alienage are met, which types of cases will federal courts decline to hear?

Answer 14

Actions for divorce, alimony, child custody, or to probate an estate

Question 15

What types of cases can state courts NOT hear?

Answer 15

Bankruptcy, Patent infringement, and some federal securities and antitrust claims

Question 16

What does “removal” mean?

Answer 16

transfering or “Removing” a case from state court to federal court

Question 17

What is the required timing for filing removal?

Answer 17

the defendant must file to remove no later than 30 days after service

Question 18

Can plaintiffs remove?

Answer 18

No

Question 19

What cases can be removed?

Answer 19

Defendants can remove a case that meets the requirements for diversity of citizenship or Federal question jurisdiction (i.e.: there is SMJ)

Question 20

What are the limitations of removal in a diversity of citizenship case?

Answer 20

The case should not be removed if: (1) any defendant is a citizen of the forum state, (2) removal is being done one year after the case was filed in state court

Question 21

In a diversity jurisdiction case, what law does a federal court apply?

Answer 21

The federal court applies the law that would be applied by the courts of the state in which the federal court is located, including that state’s choice-of-law rules.

Question 22

If a the defendant resides outside the US, where is venue proper?

Answer 22

in any federal district court, but if another defendant resides in the US, then venue must be proper as to them

Question 23

For venue purposes, where does a human reside?

Answer 23

in the federal district where they are domiciled

Question 24

For venue purposes, where does a business reside?

Answer 24

in all districts where it is subject to Personal Jurisdiction for the case. Note no difference between corporations or partnerships, etc

Question 25

When is a judicial district a proper venue under federal venue rules?

Answer 25

A judicial district is a proper venue if any defendant is subject to the court’s personal jurisdiction with respect to the action, or if a substantial part of the events giving rise to the claim occurred there.

Question 26

When does a person’s domicile change for legal purposes?

Answer 26

A person’s domicile remains unchanged until they are: (1) Physically present in a new place, and (2) have the intent to remain there indefinitely

Question 27

Where is venue proper under federal law?

Answer 27

Venue is proper in (1) A district where any defendant resides, if all defendants reside in the same state; or (2) A district where a substantial part of the events or omissions giving rise to the claim occurred.

Question 28

If no district meets the usual venue rules, where is venue proper?

Answer 28

In a district where any defendant is subject to the court’s personal jurisdiction with respect to the action.

Question 29

What types of cases can be removed to federal court?

Answer 29

Cases that could have been filed in federal court originally—i.e., involving Federal question jurisdiction, or Diversity jurisdiction

Question 30

When is removal based on diversity NOT allowed?

Answer 30

If any defendant is a citizen of the state where the case is filed, the case cannot be removed based on diversity.

Question 31

What happens if a case is improperly removed?

Answer 31

The federal court will remand the case back to state court.

Question 32

What is the time limit for removing a diversity case that becomes removable later (e.g., after a nondiverse defendant is dismissed)?

Answer 32

If a diversity case was not initially removable but later becomes removable, it cannot be removed more than one year after the case was commenced in state court—unless the plaintiff acted in bad faith to prevent removal.

Question 33

When can a defendant remove a case from state court to federal court under 28 U.S.C. § 1441?

Answer 33

A defendant may remove a case if it could have originally been filed in federal court—either because it involves a federal question, or Diversity of citizenship jurisdiction.

Question 34

Can a case that is initially filed in federal court be removed to state court?

Answer 34

No. There is no legal mechanism for removing a case from federal court to state court.

Question 35

What is a preliminary injunction?

Answer 35

an order that maintains the status quo until trial

Question 36

What is a temporary restraining order (TRO)?

Answer 36

a TRO is issued to preserve the status quo until a hearing for a preliminary injunction can be held

Question 37

What is a FRCP 12(b)(6) motion?

Answer 37

A motion to dismiss for failure to state a claim

Question 38

What is a rule 56 motion?

Answer 38

A motion for summary judgment

Question 39

When can a pleading be treated as evidence?

Answer 39

only when it is made under oath

Question 40

A party may use supplemental jurisdiction to have their claim heard in federal court if the claim meets the "nucleus of operative fact" test UNLESS:

Answer 40

The claim (1) is asserted by a plaintiff (2) in a diversity case, and (3) is asserted against a citizen of the same state as the plaintiff