CIVIL PROCEDURE

Question 1

Personal Jurisdiction

Answer 1

Personal jurisdiction describes a federal court’s ability to adjudicate over the rights of a particular party.

Question 2

General Personal Jurisdiction

Answer 2

Generally, a plaintiff can sue a defendant that is “at home” in the forum state. Factors to consider include: 1) the defendant being physically present in the jurisdiction; 2) the defendant consenting to PJ by appearing in court or filing suit; or 3) domicile.

Domicile:
Person - residence (physically present and intend to remain indefinitely

Corporation - any state where it is incorporated and one state where its principal place of business is located (the nerve center of the business)

Partnership or LLC - domiciled where any partner or member is located.

Question 3

Specific Personal Jurisdiction

Answer 3

A court may exercise specific personal jurisdiction if the claim arises out of the contacts with the forum state.

Two-prong test:
1) Is there a state long-arm statute (statutory); AND

2) Are there minimum contacts with the forum state as not to offend traditional notions of fair play and substantial justice under the Due Process Clause.

Factors: purposefully availing one to the laws of the forum state (entering into a contract);

Question 4

Subject-Matter Jurisdiction

Answer 4

Under Article III, federal courts are limited to hearing cases that 1) involve a federal question, 2) are between citizens of different states, or 3) state claims that arise out of the same common nucleus of operative fact.

Question 5

Federal Question Jurisdiction

Answer 5

A court may exercise federal question jurisdiction if the claim arises under federal law, the US Constitution or its treatises.

• The federal question must be on the face of the plaintiff’s “well-pleaded” complaint and the federal law CANNOT be an anticipated defense.

Question 6

Diversity Jurisdiction

Answer 6

A court may exercise diversity jurisdiction if:

1) there is complete diversity among the parties; AND

2) the amount-in-controversy exceeds $75,000.

Question 7

Supplemental Jurisdiction

Answer 7

A court may exercise supplemental jurisdiction over a claim that would not otherwise satisfy the requirements of SMJ if that claim arises out of the same common nucleus of operative fact.

• In a diversity case, a defendant may implead a non-diverse party, but a plaintiff may not.

Question 8

Removal Jurisdiction

Answer 8

A defendant may remove a case from state court to federal court within 30 days if it could have originally been brought in federal court.

• CANNOT EXCEED A YEAR IF A DIVERSITY CASE UNLESS THE PLAINTIFF ACTED IN BAD FAITH.
• Defendants may not remove on diversity grounds if any defendant is a citizen of the forum state.
• A plaintiff may not remove a case.

Question 9

Remand

Answer 9

A plaintiff may seek to have a case that was originally brought in federal court, remanded to state court if done so within 30 days after removal.

Question 10

Venue

Answer 10

Generally, venue is proper where: 1) the defendant is domiciled, if ALL defendants are domiciled there; or 2) where a substantial part of the events took place.

Question 11

Law applied when transferring to a proper venue

Answer 11

Law of the transferee court.

Question 12

Law applied when the case is transferred to a more appropriate forum

Answer 12

Law of the transferor court.

Question 13

Forum Non-Conveniens

Answer 13

If a foreign jurisdiction is more appropriate due to the location of witnesses and where most of the events took place, a party may move to have the case heard in a alternative forum, and the federal court may dismiss the case.

Question 14

What must be served on the defendant?

Answer 14

A copy of the complaint and a summons.

Question 15

Requirements for a process server

Answer 15

1) must be at least 18; AND
2) NOT a party to the case.

Question 16

Waiver

Answer 16

A plaintiff may ask the defendant to waive service of process by sending the complaint, two copies of a waiver form, and a prepaid means of returning the form via first-class mail.

Question 16

Methods of Service

Answer 16

A plaintiff may serve a defendant using one of the following methods:

S: State law methods;

A: Agent, or someone designated to receive process for party;

I: Individually; OR

D: Dwelling, leaving a copy at the defendant’s usual place of abode with someone of suitable age and discretion.

*Serving a corporation: a plaintiff may serve a corporation by using state law methods, or serving an officer, managing agent, or any other agent appointed to receive service.

Question 17

Complaint

Contents?

Timing?

Answer 17

Contents:
1) short and plain statement of the facts that would entitle the plaintiff to plausible relief;

2) a statement describing how the court has jurisdiction; AND

3) a request for relief.

Timing: A complaint must be served on a defendant within 90 days after filing.

Question 17

Amending a Pleading

Answer 17

A pleading may be amended as of right within 21 days after service. After 21 days, the party must have consent of the other party and the court.

The court will freely give leave to amend if justice so requires.

Question 18

Answer

Timing?

Answer 18

The defendant’s reponse to the plaintiff’s complaint.

Must be served within 21 days unless service has been waived; in that instance, the defendant has 60 days.

Question 19

Compulsory Counterclaims

Answer 19

An opposing party may bring suit if the claim arise out of the same transaction or occurrence.

• If not brought in the original suit, the defendant waives the ability to bring this claim later.

Question 20

Permissive Counterclaims

Answer 20

An opposing party may bring suit if it does not arise out of the same transaction or occurrence.

• The defendant may bring these claims in the current suit or wait to bring them later.

Question 21

Crossclaims

Answer 21

A party may bring a claim against another co-party it must arise out of the same transaction or occurrence.

• CROSS CLAIMS ARE NEVER COMPULSORY.

Question 22

Joinder of Plaintiffs Adding Plaintiffs

Answer 22

Plaintiffs may add other plaintiffs if:

1) their claims arise out of the same transaction or occurrence; AND

2) there is a common question of law or fact.

Question 23

Joinder of Defendants Adding Defendants Timing?

Answer 23

A defendant may implead another defendant if that party may be liable to the defendant for part or all of the recovery. * Must be filed within 14 days of serving the answer.

Question 24

Intervention

Answer 24

A movant may intervene as a matter of right if: 1) it has an interest related to the property or transaction that is subject of the action; 2) disposition without the moving party may impair or impede the movant's ability to protect its interests; AND 3) its interest is not adequately represented by the current parties. * Must be timely filed. Permissive intervention may be granted if the party has a common question of law or fact with the main case.

Question 25

Interpleader

Answer 25

A holder of property subject to conflicting claims may file a lawsuit as a plaintiff and join all claimants to avoid the possibility of double liability. * $500 and minimal diversity is all that is required to get into federal court.

Question 26

Requirements to Certify a Class

Answer 26

C: Commonality, there must be a common injury between members; A: Adequacy, the class's interests are adequately represented; N: Numerosity, there are sufficient members (CAFA allows jurisdiction over a class if there are at least 100 members); T: Typicality, the representative member has an injury typical of the class members. Amount-in-controversy: Must exceed $5million Minimal Diversity

Question 27

Temporary Restraining Order Requirements? Duration?

Answer 27

Notice to the respondent is NOT required, but the plaintiff must show a risk of immediate and irreparable harm. A TRO may NOT last longer than 14 days unless the court finds good cause to extend. TROs are considered a stopgap measure while the court decides to issue a preliminary injunction.

Question 28

Preliminary Injunction Requirements?

Answer 28

For a court to issue a preliminary injunction, the plaintiff must: 1) provide notice to the adverse party; AND 2) Factors the court considers (HELP): H: the significance of the threat of irreparable harm; E: evaluation of the injuries, the balance between the plaintiff's harm and the injury the granting would inflict on the defendant; L: likelihood of the plaintiff prevailing on the merits; P: public interest.

Question 29

Scope of Discovery

Answer 29

Anything that is relevant and proportional to the claims or defenses.

Question 30

Work Product Doctrine

Answer 30

Work product prepared in anticipation of litigation is not discoverable unless there is a substantial need and undue hardship. * Attorneys' mental impressions are NEVER discoverable.

Question 31

Mandatory Disclosures

Answer 31

Prior to trial, parties must exchange: a) ID and Reports of Experts (90 days before trial; 30 days if only intended to rebut evidence); b) names of witnesses to be called at trial (30 days); c) documents and depositions to be offered at trial.

Question 32

Rule 11 and Sanctions

Answer 32

When an attorney signs a document, they certify that: a) the document is not made for an improper purpose; b) the arguments are supported by existing, valid law; c) the factual contentions have evidentiary support. Sanctions: A party may move for Rule 11 sanctions after they have given the other party 21 days to withdraw the offending paper.

Question 33

Erie Doctrine

Answer 33

When a federal court is sitting in diversity, it must apply federal procedural law (FRCP) and state substantive law (burdens of proof, statutes of limitations, caps on damages, elements of claims, and choice of law rules.

Question 34

The Klaxon Doctrine

Answer 34

The federal court sitting in diversity must apply the choice of law rules in which it sits.

Question 35

Federal Common Law

Answer 35

is applied where Congress has given a federal court the ability to develop law (bankruptcy, etc.) or where a federal rule is necessary and a state law would frustrate federal objectives.

Question 36

Judgment as a Matter of Law (JMOL) Standard? Timing?

Answer 36

A party may move for a judgment as a matter of law if no reasonable jury could have found in favor of the non-moving party, and 2) they are entitled to a judgment as a matter of law. Timing? Must be made at the close of the non-moving party's case.

Question 37

Renewed JMOL Timing?

Answer 37

A party may renew their motion for a judgment as a matter of law, as long as they moved during trial. This must be done within 28 days of the jury's verdict.

Question 38

Motion for a New Trial Standard? Timing?

Answer 38

A party may move for a new trial where there were errors in the jury's decision-making process or the verdict is against the great weight of the evidence, or if the verdict was excessive or inadequate. This must be filed within 28 days following entry of the jury's verdict, or the court may grant a new trial sua sponte.

Question 39

Relief from Judgment Standard? Timing?

Answer 39

If there are issues of mistake, fraud, or new evidence, that were not discoverable at trial, a party may request. Must be filed within one year of the judgment.

Question 40

Notice of Appeal Timing?

Answer 40

Must be filed within 30 days after entry of the judgment.

Question 41

12(b) Defenses Timing?

Answer 41

Lack of Subject-Matter Jurisdiction (may be raised at any time, even after trial); Lack of Personal Jurisdiction (must be brought in first answer or motion or it will be waived); Improper Venue (must be brought in first answer or motion or it will be waived); Insufficient Process / Improper Service of Process (must be brought in first answer or motion or it will be waived); Failure to state a claim for which relief could be granted (any time through trial); Failure to Join a Necessary Party (any time through trial).

Question 42

Motion for Summary Judgment

Answer 42

Standard: 1) there is no genuine dispute of material fact; AND 2) the moving party is entitled to judgment as a matter of law. * Looked at in the light most favorable to the non-moving party who has the burden of showing there is an issue of material fact.

Question 43

12(b)(6) Motion (Failure to State a Claim)

Answer 43

If everything on the face of the complaint is taken as true, the plaintiff is not entitled to judgment under any legal theory.

Question 44

When is a Party Entitled to a Jury Trial

Answer 44

Under the 7th Amendment, a party is entitled to a jury ONLY for cases at law, and NOT in equity.

Question 45

When may a default be entered?

Answer 45

By the clerk: no timely response, and the sum is certain. No notice requirement. Otherwise, it will be entered by the judge, which requires 7-days notice if the defendant has appeared.

Question 46

Issue Preclusion (Collateral Estoppel)

Answer 46

Requirements: 1) Same Issue; 2) Actually and fully litigated; 3) Essential to the judgment.

Question 47

Claim Preclusion (Res Judicata)

Answer 47

Requirements: 1) same plaintiff, same defendant (privity suffices); 2) same claim arising out of the same transaction or occurrence; 3) final judgment (not modifiable); 4) on the merits.

Question 48

Involuntary Dismissal

Answer 48

Will be dismissed with prejudice.

Question 49

Voluntary Dismissal

Answer 49

A plaintiff may voluntarily dismiss a claim once without prejudice, after that, the second dismissal will be with prejudice.

Question 50

Non-mutual collateral estoppel

Answer 50

Gets rid of the common law requirement of mutuality for a party to use collateral estoppel. In some states, the party may not use it as both a sword and a shield.

Question 51

12(c) Motion for Judgment on the Pleadings

Answer 51

The plaintiff may file a motion for judgment on the pleadings after the defendant has filed their answer. The standard is similar to a 12(b)(6) motion where if everything in the pleadings is taken as true, there is no legal theory that would support relief.

Question 52

Consistent and Inconsistent Verdict Scenarios

Answer 52

If the facts are consistent with the verdict, the judge may enter it; If the findings of fact are inconsistent, the judge may enter the judgment consistent with the interrogatory answers, direct the jury to deliberate further, or order a new trial; If the interrogatory answers are inconsistent with the verdict, the judge may order the jury to deliberate further or order a new trial.