Civil Procedure

Question 1

What is federal subject matter jurisdiction?

Answer 1

The power of the court over the subject matter, kind, or nature of the lawsuit.

Question 2

What are the rules around objections and waivers for SMJ?

Answer 2

• objections to SMJ can never be waived
• the parties can never consent to a court’s lack of SMJ
• the court on its own must dismiss an actoin for lack of SMJ even if no party raises the objection

Question 3

What are the types of SMJ of federal courts?

Answer 3

Federal courts are courts of limited jurisdiction, while states are courts of general juridsiction. There are two primary bases for federal SMJ
1. arising under federal law or
2. diversity jurisdiction

Question 4

What does “arising under federal law” mean?

Answer 4

A claim that arises under federal law is a claim created by federal law or created by state law but depends on a substantial federal question. Substantial federal questions are issues that involve the U.S. constitution or federal tax law.

Question 5

What is the well-plead compaint rule for federal question jurisdiction?

Answer 5

The federal issue must appear on thef ace of the plaintiff’s wel pled complaint as part of the plaintiff’s own claim, and not merely by way of a defense.

Question 6

What is diversity jurisdiction?

Answer 6

Federal courts have jurisdiction over claims in which there is complete diversity and the amount in controversy exceeds $75,000.

Question 7

What is complete diversity?

Answer 7

No single plaintiff may be a citizen of the same state as any single defendant.

Question 8

How is citizenship determined for individuals?

Answer 8

A person is a citizen of theirstate of domiciles. An individual’s domicile is the state where the individual resides and intends to remain or return to if not currently present. Domilice is fixed when the lawsuit is filed.

Question 9

How is citizenship of corporations determined.

Answer 9

Corporations can be citiznes of two states: (1) the state of incoporation and (2) the state where the principal place of business is located (i.e. headquartered). Each one counts to determine diversity jurisdiction.

Question 10

How is citizenship determined for unincorporated associations?

Answer 10

Every single owner counts as a separate domiciled party for diversity. Location of operations or headquarters is irrelevant for diversity purposes.

Question 11

How is citizenship determined for foreign citizens not admitted as a permanent resident.

Answer 11

They may sue a U.S. citizen based on diversity and may be sued by a U.S. citizen based on diversity.

Question 12

How is citizenship determined for a foreign citizen admitted as a permanent resident of a state.

Answer 12

They are treated as a U.S. citizen for diversity perposes. They are deemed to be domiciled in their state of residence.

Question 13

How is citizenship determined for U.S. citizens domiciled in a foreign country? (i.e. stateless person)

Answer 13

They may never sue or be sued based on diversity jurisdiction. They are not a citizen of any state in the U.S., so there will never be complete diversity.

Question 14

How is citizenship decided for decedents, minors, and incompetents?

Answer 14

The real party in interest counts for determining citizenship, not the executor or guardian.

Question 15

What is the amount in controversy requirement for diversity jurisdiction?

Answer 15

The amount in controversy must exceed $75,000. The plaintiff’s view point governs the amount. The value of the relief sought by the plaintiff must exceed $75,000. The value can include nonmonetary relief such as an injunction.

The ammount alleged governs, not the amount ultimately govered. The exception is if it appears to a legal certainty that hte plaintiff cannot recover an amount exceeding $75,000.

The court has discretion to award costs against the plaintiff if the amount recovered does not exceed $75,000, but this discretion is rarely exercised.

Question 16

What are the rules of aggregation for a single plaintiff?

Answer 16

A single plaintiff may aggregate all its claims against a single defendant, even if the claims are not related.

A single plaintiff may not aggregate its claims against multiple defendants unless those claims allege a joint liability.

Question 17

What is the aggregation rule for multiple plaintiffs?

Answer 17

Multiple plaintiffs generally may not aggregate their claims against a defendant. An exception allows multiple plaintiffs to aggregate their claims when they are enfocing a single title or right in which they have a common or undivided interest (e.g. real property interest)

Question 18

When will the federal courts decline diversity jurisdiction even when it is met?

Answer 18

Over cases that involve a core domestic relations matter or probate matter.

Question 19

What is supplemental jurisdiction?

Answer 19

A federal court with subject matter jurisdiction over a claim has discretion to hear anther claim over which the court would not independently have jurisdiction if both claims arise from a common nucleus of operative fact.

Question 20

When is supplemental jurisdiction precluded in diversity cases?

Answer 20

If the only primary jurisdictional basis is diversity, plaintiffs cannot use supplemental jurisdiction to bring additional claims against nondiverse parties

Question 21

What is removal?

Answer 21

The act a defendant takes to move an action from state court to federal court.

Question 22

What is remand?

Answer 22

The process of moving the case from federal court back to state court.

Question 23

What are the general rules for removal?

Answer 23

Defendants may remove an action from state court to the federal court that geographically embraces the state court by:
(1) all defendants consenting to removal and
(2) filing a notice of removal in federal court within 30 days of the service of a state court complaint from which the possibility of removal could be ascertained.

Question 24

What are the general rules for remand?

Answer 24

Plaintiffs may file a motion to remand the action back to state court within 30 days of the filing of the notice of removal.

Even if no motion of remand has been filed, a federal court must remand claims on its own initiative if there is no subject matter jurisdiction over those removed claims.

Question 25

What are the removal exceptions?

Answer 25

If the only primary jurisdictoinal basis is diversity, there can be no removal if: (1) any single defendant is a citizen of the state where the action was filed or (2) the notice of removal is filed more than 1 year after the original state court action was filed.

Question 26

What is needed before the erie doctrin is implicated?

Answer 26

(1) a case arises in federal district court (2) the federal court has to resolve a nonfederal state claim and (3) a conflict exists between an applicable federal law and a contrary state law provision.

Question 27

What is the erie analysis?

Answer 27

If the conflict between federal and state law involves a federal statute, a Federal Rule of Ciivl Procedure, a FRE, or the issue of trial by jury, then federal law governs. If the conflict does not invovle any of the above, the state law governs where the difference between federal and state law would alter the outcome of the case.

Question 28

What is the full faith and credit clause for a valid judmgnet?

Answer 28

A valid judgment entered in state court must be recognized and enforced in every other federal or state court.

Question 29

When are federal courts prohibited from enjoining state court actions?

Answer 29

(1) pending state court actions (2) state tax proceedings and (3) state criminal prosecutions

Question 30

What are the rules around abstention?

Answer 30

Federal courts may abstain from adjudication any state court issues that involve the interpretation of state law or of the constitutionality of a state statute. A federal court may stay its own action in federal court pending the outcome of a state court's action or interpretation of tis own laws.

Question 31

What are the rules around temporary restrainging orders?

Answer 31

A TRO is an emergency order entered by the court for up to 14 days (unless good cause exists or the adversary consents) to prevent irreparable harm and to preserve hte status quo before a hearing can be held on a preliminary injunction. Notice of a TRO can be excused if movant shows specific facts resulting in irreperable harm such that notice would not be possible despite diligence before hte harm occurs.

Question 32

What is a preliminary injuction?

Answer 32

It may be granted only upon notice to the adverse party. Entered into to maintain the status quo and to prevent irreparable harm before a trial on the merits can take place.

Question 33

What is personal jurisdiction?

Answer 33

The power of a federal court over the defendant's person or property. A federal court has personal jurisdiction if the law of the forum grants personal jurisdiction and the forum's law is constitutional.

Question 34

Forum's laws basis for peronal jurisdiction?

Answer 34

Absent a federal statute that expressly grants personal jurisdiction, a federal court borrows the same personal jurisdiction law of the state where it sits. There are likely three alternative bases for personal jurisdiction: (1) consent (2) Presence (3) long arm statute

Question 35

When is implied consent for personal jurisdiction obtained?

Answer 35

(1) the failure of the defendant to object to personal jurisdiction in a proper and timely manner operates as a waiver to challenge personal jurisdiction. The defendant must object within 21 days of being served with process in the defendant's first response. If the defendant agrees to waive formal process, the time to respond is extended to: - 60 days from the date that the request for waiver was sent if the defendant is located in the U.S. or 90 days if located in a foreign country

Question 36

Presence as a basis for personal jurisdiction

Answer 36

1. service of process - Defendant must be actually and voluntarily physicallyb present in the state while served with process. 2. domicile - defendant's domicile is the same for purposes of SM and PJ, true home plus intent to remain or return to that state 3. eessentially at home - the equivalent of being domiciled in that state

Question 37

What is a long arm statute?

Answer 37

It allows a federal court to pull in out-of-state defendants who are not present and who do not consent. It generally provides for specific PJ over defendants who perform a specific act identified in the statute in the state from which the lawsuit derives.

Question 38

Who can serve process?

Answer 38

Anyone who is 18 years of age or older and a non-party is authorized to serve process (copy of the summons and the complaint) in federal court.

Question 39

How long do you have to serve?

Answer 39

An authorized process server has 90 days to serve process from the date that the lawsuit was filed.

Question 40

When is service of proper?

Answer 40

(1) The method of service was proper under the federal rules; and (2) The method is constitutional under the due process clause. A service of process is constitutional if it is reasonably calculated to apprise interested parties of the litigation. NOTE: all methods of service of process authorized by the FRCP are constitutional (A WASP).

Question 41

What are the five proper methods of service under the FRCP?

Answer 41

A WASP Abode service Waiver Agent Service State Methods Personal Service

Question 42

What is requried for abode service to be proper?

Answer 42

Autohrized process server must leave the process at the defendant's last and usual abode with a person who resides there of subitable age and discretion.

Question 43

What is required for waiver to be proper?

Answer 43

Plaintiff mails the complaint to the defendant with a request that the defendant waive formal methods of process. Defendants have a duty to avoid the cost of formal service. If a defendant waives service they are rewarded with more time to respond to the complaint --- 21 days is extended to 60 in US or 90 in foreign country.

Question 44

What is Agent Service?

Answer 44

Personal service on an agent who is authorized to accept it or who is a managing agent of the defendnt. Or request the agent to waive formal process.

Question 45

What are state methods of service?

Answer 45

FEderal courts may adopt any available method of process (e.g. publication) allowed in a state where (1) the federal court is located OR (2) process is to be made

Question 46

What is personal service?

Answer 46

In-hand, direct delivery by authorized process server to the defendant.

Question 47

What is the definition of proper venue?

Answer 47

The federal district that is the most convenient and appropriate location for the lawsuit.

Question 48

Where is venue proper?

Answer 48

Venue is proper in a district where either: (1) Any defendant resides if all defendants reside in the same state or (2) any substantial part of the claim arose or the property at issue might be located.

Question 49

For purposes of venue, where does an individual reside?

Answer 49

Where they are domiciled

Question 50

Where does an organization reside for purposes of venue?

Answer 50

In any district that would have personal jurisdiction over them if that district were a state.W

Question 51

Where does a foreign citizenr eside for purposes of venue?

Answer 51

Foreign citizens who do not reside in the U.S. can be sued in any federal distircit.

Question 52

What can the defendant do if there is impropre venue?

Answer 52

The defendant can object to improper venue by filing a motion to dismiss or to transfer the action to a proper venue. A challenge to improper venue must be filed by the defendant in its first response to the complaint, which will be granted: (1) in the court's discretion (2) for hte convenience of parties and witness; and (3) in the interests of justice. Failure to file in first response constitutes a waiver.Wha

Question 53

What happens if there is a forum-selection clause?

Answer 53

There is a strong presumption that hte choice of venue will be honored.

Question 54

What are the general requirements of pleadings?

Answer 54

Coplaints must contain sufficient information to place the adversary on notice of claims that are plausible. But claims invovling fraud must be pled with particularity.

Question 55

What does Rule 11 say?

Answer 55

When any lawyer or pro se party presents any paper to a federal court, they certify that to the best of their knowledge and belief, and after reasonable inquiry: (1) the paper is not being brought for improper purpose (2) the contentions of law are warranted by existing law or a non-frivolous argument to modify, extend, or reverse existing law and (3) the factual contentions have supporting evidence or will garner supporting evidence upon further discovery

Question 56

Which defenses are waived if they are not included in the defendant's first response?

Answer 56

1. personal jurisdictoin 2. challenging service of process and 3. challenging venue

Question 57

What are the rules rearding answers?

Answer 57

They must fairly and precisely meet every allegation in the complaint by: (1) admitting those that are true; (2) denying those that are not true; or (3) stating that there is insufficient information from which to admit or deny.

Question 58

What are the rules around affirmative defenses.

Answer 58

They must be pled in the answer or they will be waivied. Assume that everything alleged in the complaint is true but still win because there is an affirmative matter that defeats the claim.

Question 59

What is the general policy to amendments in federal court?

Answer 59

Federal courts have a liberal amendment policy in federal courts to ensure that pleadings conform to the evidence at trial.

Question 60

What is the right to amend?

Answer 60

The pleader has absolute right to amend pleading once as a right of up to 21 days after the service of the response to its pleading. If no responsibe pleading is required, then a party may amend its pleading once as of right no later than 21 days after serving that pleading.

Question 61

What is the leave of court rule for amendments?

Answer 61

After the time to amend as of a right has expired, a party must seek the court's leave to amend. Amendment will be granted by the court freely when justice so requires and to serve the merits. The only reason to deny an amendment is to avoid undue prejudice to the party opposing the amendment. (Note: unde prejudice is a hard standard to meet)

Question 62

What is the relation back doctrine for a new claim?

Answer 62

Amendment adding new claim relates back to the date of a timely filed complaint if the new claim dervies from the same transaction or occurrence as the earlier, timely filed claims.

Question 63

What is the relation back doctrine for a new party?

Answer 63

Amendment adding new parties relates back to the date of a timely filed complaint if: (1) Claim against the new party derives from the same transaction or occurrence as the earlier, timely filed claims; and (2) New party acquired knowledge that but for a mistake in name the new party would have been sued within 90 days of the filing of the timely complaint.

Question 64

What is joinder?

Answer 64

A way to add claims and/or parties to a single lawsuit in federal court. There is a liberal policy of joinder in federal court?

Question 65

What are ther ules around claim joinder in federal court?

Answer 65

A party may join as many claims as it has against an adversary regardless of wheteher there is any connection between those joined claims (assuming there is jurisdiction).

Question 66

What are hte rules around party joinder in federal court?

Answer 66

Party may join parties ot a lawsuit if hte claims involving those parties derive from the same transaction or occurrence or hte same series of transactions or occurrences. The other requirement, which is often satified or assumed to be satisfied, is that any question of law or fact common to all joined parties will arise in the action.

Question 67

What is a counterclaim?

Answer 67

A counterclaim si any claim for relief made against an opposing party after an original claim has been made. For example, a counterclaim may be asserted in tehd fendant's answer ot the complaint and a plaintiff's reply to a counterclaim.

Question 68

What is a permissive counterclaim?

Answer 68

A counterclaim that does not derive from the same transaction or occurrence as the plaintiff's claim. The defendant may file the claim as a counterclaim.

Question 69

What is a compulsory counterclaim?

Answer 69

A counterclaim that does derive from the same transaction or occurrence as the plaintiff's claim. The defendant must file the counterclaim int he action filed against it and may not file the claim in a later, separate independent action.

Question 70

What is a crossclaim?

Answer 70

A party may file a crossclaim against an existing co-party if that crossclaim derives from the same transaction or occurence that ist he subject of the action.

Question 71

What is an impleader (third party claim)?

Answer 71

Defendant may bring a new claim against a new third party if that new third party may be liable to the defendant for all (indemnity) or part (contribution) of hte defendant's same liability to the plaintiff.

Question 72

What is interpleader?

Answer 72

The holder of a common fund may file a lawsuit against all of the rival claimants to its common fund. Under traditional interpleader diversity, there must be complete diversity and the amount must exceed $75,000. Under statutory itnerpleader diversity, ther must be (any two rival claimants are from different states) and $500 is sufficient.

Question 73

What is an intervention?

Answer 73

The act of a nonparty seeking to become a party in an ongoing lawsuit by following a motion to intervene.

Question 74

When does an individual have a right to intervene?

Answer 74

Intervenor nonparty has the right to intervene if it has an interest in the lawsuit which would be adversely affected and not protected by the parties.

Question 75

When will it be permissive for an individual to intervene?

Answer 75

A federal judge has discretion to permit intervention if the intervenor nonparty can show a commonality of issues between those in the ongoing lawsuit and those affecting the intervenor.

Question 76

Who is an indispensable party?

Answer 76

A nonparty who must be joined to a lawsuit if its absence would be unduly prejudicial to any party's right to a full and fair adjudication.

Question 77

What happens if an indispensable party cannot be joined due to lack of SMJ over the nonparty's claims?

Answer 77

The court msut decide in equity and good conscience whether to: (1) continue without the nonparty and risk prejudice or (2) dismiss the entire lawsuit for failure to join an indespensable party

Question 78

What is a class action?

Answer 78

An action in which a named party represents a class of commonly situated, absent parties.

Question 79

What are the jurisdictional basis over class actions?

Answer 79

Class Action Fairness Act (CAFA) establisheds alternative jurisdictional basis over class actions if: (1) there are 100 or more plaintiffs; (2) seeking an amount in excess of $5 million; and (3) any single plaintiff is from a different state than any single plaintiff (minimum diversity)

Question 80

What cases does CAFA generally exclude?

Answer 80

1. cases against government 2. securities-related cases 3. cases concerning the internal aff

Question 81

What is required for a federal judge to certify a class action?

Answer 81

Mnemonic: CANT 1. Commonality: there must be common issues of fact or law that pertain to the class 2. Adequacy: Named party and class counsel must fairly and adequately represent the class 3. Numerosity: class must be so numerous that joinder would be impracticable 4. Typicality: the claims of the named party must be typical of the class

Question 82

What are teh additional requirements to certify a class seeking monetary damags?

Answer 82

1. Predominance: common issues must predominate over hte individual issues pertaining to class members 2. Superiority: the class action method must be the superior way of resolving the many claims

Question 83

What are the constitutional requirements to certiffy a class action seekking money?

Answer 83

The judge must 1. order notice that is reasonably calculated to apprise class members of the litigation and 2. afford class members the right to opt out from the class action