Civil Procedure 2

Question 1

What are the three main types of personal jurisdiction? (P1)

Answer 1

1) In rem jurisdiction - applies to actions brought directly against property (e.g., condemnation)

2) quasi in rem jurisdiction - applies to actions brought against a person in reference to property (e.g., quiet title)

3) in personam - applies to actions brought directly against a person

Question 2

What are the rules regarding proof of service of process? (P1)

Answer 2

The plaintiff must provide proof of service of process to the court when service was properly made in the U.S. and not waived by the defendant. But a failure to prove service of process does not affect the validity of the service.

Question 3

What must an answer to a complaint include? (P1)

Answer 3

An answer must include (1) admissions and denials, (2) motions that have not been waived, (3) affirmative defenses, and (4) compulsory counterclaims. Otherwise, these items will be waived.

Question 4

What is the standard on a motion to dismiss? (P1)

Answer 4

When considering a motion to dismiss for failure to state a claim, the court must (1) treat all well-pleaded facts in the complaint as true and (2) view the evidence and draw all reasonable inferences in the light most favorable to the nonmovant.

Question 5

When does a federal court have subject-matter jurisdiction over a class action? (P1)

Answer 5

A federal court has subject-matter jurisdiction over a class action when the action arises under the U.S. Constitution, a treaty, or federal law (i.e., federal-question jurisdiction) OR when the named opposing parties are diverse and the amount in controversy for any named plaintiff’s claim exceeds $75,000 (i.e., diversity jurisdiction).

Question 6

What MUST a court consider when evaluating a judgment as a matter of law?

Answer 6

When considering a motion for JMOL, the court must (1) view the evidence and draw all reasonable inferences in favor of the nonmovant, (2) disregard any evidence favorable to the movant that the jury need not believe, and (3) not consider the credibility of witnesses or the weight of evidence.

Question 7

What are the rules for proper jury verdicts under FRCP 48? (P1)

Answer 7

Under Federal Rule of Civil Procedure 48, a jury must begin with at least 6 and no more than 12 members. Each juror must participate in the verdict unless excused by the court for good cause (e.g., illness, family emergency), which can occur during trial or after jury deliberations have begun (Choice D). And UNLESS the parties stipulate otherwise, the verdict must be unanimous and returned by at least 6 jurors.

Question 8

What standard of appellate review applies to a trial court’s discretionary rulings (e.g., whether to admit evidence)?

Answer 8

The abuse-of-discretion standard of review. (most deferential)

Under this highly deferential standard, the appellate court will only reverse a clearly arbitrary or unreasonable ruling.

Question 9

What standard of appellate review applies to a trial court’s factual findings?

Answer 9

The clearly-erroneous standard of review.

This standard gives great deference to the trial court, so a factual finding will only be reversed if no reasonable judge would have made such a finding.

Question 10

What standard of appellate review applies to a trial court’s legal rulings?

Answer 10

De novo review. (least deferential)

This provides no deference to the trial court and reverse if there is a reasonable belief that the judge misinterpreted law

Question 11

What is collateral estoppel/issue preclusion and what are the two types?

What types of parties can issue preclusion be asserted against?

Answer 11

Collateral estoppel (i.e., issue preclusion) precludes the relitigation of an issue that was actually litigated, determined, and essential to a valid final judgment on the merits.

There are two types of collateral estoppel:

Mutual – where parties from the first action assert collateral estoppel in a subsequent action against other parties from the first action

Nonmutual – where nonparties from the first action assert collateral estoppel in a subsequent action against parties from the first action

Note:
Both types of issue preclusion can be asserted against parties to the first action because they have had an opportunity to fully and fairly litigate their claims/defenses. However, they cannot be asserted against a nonparty to the first action because it would deprive that party of the opportunity to fully and fairly litigate his/her claims and defenses.

Ex: Party A sues Party B in first action and is successful, but B is insolvent and A cannot recover. Party A then sues party C (B’s employer) seeking to recover for the same claim against party B. Party A cannot now assert nonmutual issue preclusion against party C because it did not have an opp to defend itself in the first actio.

Question 12

What manner can mutual and nonmutual collateral estoppel be used?

Answer 12

Defensive estoppel is used by a defendant in the second action to avoid relitigating an issue from the first action.

Offensive estoppel is used by a plaintiff in the second action to establish an issue from the first action—with limited exceptions

Question 13

What are the limited exceptions to offensive estoppel?

Answer 13

Trial courts have broad discretion to determine when issue preclusion should apply. If the following factors are present, issue preclusion may not apply:

• Plaintiff could have easily joined first action
• Defendant had little incentive to vigorously defend in first action
• Second action affords procedural opportunities unavailable in first action or
  -Inconsistent findings on issue exist

Question 14

What does the due process minimum contacts test require?

Answer 14

a) Purposeful availment - (reasonably foreseeable to be sued in the state)

b) Relatedness -defendant’s conduct in relation to the actio (specific jurisdiction, general jurisdiction)

Question 15

What does due process test consider for fair play and substantial justice? (Essay Prep)

Answer 15

• Interest of the forum state in adjudicating the matter;
• Burden on the defendant of appearing in the case (corporate defendants are viewed as being able to bear the cost of travel better than individual defendants);
• Interest of the judicial system in efficient resolution; and
• Shared interests of the states in promoting common social policies

Question 16

What are the four steps of the transfer of venue analysis? (EP)

Answer 16

1) Is there personal jurisdiction?

2) Is there subject matter jurisdiction?

3) Is venue appropriate in the new district?

4) Is transfer to the new venue in the interest of justice?

Question 17

What are examples of laws that are substantive in nature for purposes of Erie? (EP)

Answer 17

1) A state law that alters the calculation of damages

2) A state law regarding a statute of limitations

3) State laws that create evidentiary privileges

Question 18

When is adding a new defendant permitted under relation back (Rule 15)

Answer 18

1) The claim arose out of the same conduct, transaction, or occurrence

2) The new defendant received notice of the action within 90 days of the original complaint

3) The new defendant knew or should have known that but-for a mistake, he would have been part of the original complaint

Question 19

What are the three requirements for compulsory joinder (Rule 19)?

Answer 19

1) The party must be necessary
2) There must be PJ over the new party
3) There must be SMJ (adding the party cannot destroy diversity)

Note: If adding the party would ruin diversity, the court must decide whether the party is indispensable (dismiss the case) or not (proceed without the party)

Question 20

What are the factors to determine whether a part is indispensable (Rule 19)?

Answer 20

1) Extent to which judgment would prejudice the parties in the person’s absence;

2) Extent to which prejudice could be reduced or avoided by protective provisions;

3) Whether a judgment rendered would be adequate; and

4) Whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder

Question 21

What is required for a defendant to bring a cross-claim (Rule 13)?

Answer 21

Court must have SMJ over the cross-claim (federal question, diversity, supplemental)

Question 22

What are the requirements for impleader (Rule 14)?

Answer 22

1) Claim must relate back to the original claim between the p and d

2) Must have subject matter jurisdiction over the impleaded claim (federal question, diversity, or supplemental)

Question 23

What is the scope of discovery? What information may a party not discover? When can a court limit discovery?

Answer 23

• Parties may discover any nonprivileged matter that is relevant to a claim or defense.
• Does not need to be admissible evidence in order to be subject to discovery
• A party may not discover privileged information.
• Court may limit discovery if unduly expensive or burdensome

Question 24

What duy does a party have to to preserve electronically stored information?

Answer 24

• Must take reasonable steps to preserve or could be subject to sanctions
• Court may presume that the lost information was unfavorable to the party that failed to
  preserve it
• Court may also dismiss the case or enter default judgment

Question 25

What is a renewed* judgement as a matter of law and what is required for it to be granted?

Answer 25

It is a motion for judgment as a matter of law notwithstanding the verdict - Motion for judgment as a matter of law is denied and the issue goes to the jury - The jury deliberates and delivers a verdict - Renewed motion for judgment as a matter of law asks the court to override the jury’s verdict - Can only “renew” this motion if it was made earlier

Question 26

Does issue preclusion require strict mutuality of parties? (E1)

Answer 26

Unlike claim preclusion, issue preclusion does not require strict mutuality of parties; it requires only that the party against whom the issue is to be precluded was a party to the original action. Thus, “offensive” use of collateral estoppel by a nonparty to the original action is permitted. Trial courts have broad discretion to determine whether offensive collateral estoppel should be applied. If a plaintiff could easily have joined in the earlier action or if offensive estoppel is found to be unfair to a defendant, then a trial judge should not allow it

Question 27

How does issue preclusion apply in a diversity case?

Answer 27

The preclusive effect of federal judgments is typically determined under federal law. However, federal common law requires that the preclusive effect of a judgment by a federal court sitting in diversity must be governed by the law of the state where the federal court is located. Ex: In this case, the first judgment is from a federal court sitting in diversity in State A. This requires application of State A’s issue preclusion rules which may or may not allow offensive issue preclusion when the party seeking to assert preclusion was not a party to the original suit

Question 28

What are the requirements for a proposed settlement of a federal class action? (P2)

Answer 28

A proposed settlement of a federal class action must be approved by the court to be valid. Note: The proposed settlement may be approved only after the court holds a hearing and issues findings that the settlement is fair, reasonable, and adequate.

Question 29

What types of cases can federal courts not exercise diversity jurisdiction over? (P2)

Answer 29

Federal courts cannot exercise diversity jurisdiction over cases that primarily involve probate matters or domestic relations. Instead, state courts have exclusive jurisdiction over these types of cases.

Question 30

What is the "100-mile bulge rule"? (P2)

Answer 30

The "100-mile bulge rule" establishes personal jurisdiction over a party (1) added to the suit through impleader or required joinder and (2) served with process within 100 miles of the federal court where the suit is pending.

Question 31

What are the rules regarding when a party may poll a jury? (P2)

Answer 31

A court must on a party's request, or may on its own initiative, poll the jurors individually after a verdict is returned but before the jury is discharged. If the poll reveals that the verdict is not unanimous, the court can direct the jury to deliberate further or order a new trial.

Question 32

When can a party renew its motion for judgement as a matter of law? (P2)

Answer 32

If a motion for JMOL is denied during trial, the movant can file a renewed motion for JMOL no later than 28 days after the entry of judgment to seek to overturn an adverse verdict

Question 33

What are the rules regarding when a party can secure a jury trial? (P2)

Answer 33

A party may secure a jury trial on any triable issue by (1) serving the other parties with a written jury trial demand no later than 14 days after the last pleading directed to that issue is served and (2) filing the jury trial demand with the court within a reasonable time after service of the demand.

Question 34

When is the court's leave or parties' stipulation required to conduct a deposition? (P2)

Answer 34

(1) the deposition exceeds the 10-deposition limit, (2) the deposition is sought before the initial planning conference, or (3) the deponent was already deposed in the case.

Question 35

What number satisfies numerosity for a class action? (P2)

Answer 35

Numerosity is usually met when there are over 40 members

Question 36

When is a compulsory counterclaim waived and what is the exception? (P2)

Answer 36

A compulsory counterclaim must be asserted in the defendant's answer or the counterclaim is waived. This is true unless the action is dismissed before the defendant files an answer (i.e., dismissed for lack of PJ), in which case the compulsory counterclaim is not waived and can be raised in a future lawsuit.

Question 37

What is a permissive counterclaim and what are its rules for waiver? (P2)

Answer 37

A permissive counterclaim is a claim arising out of a transaction that is unrelated to the plaintiff’s claim. Permissive counterclaims are never waived and can be raised in a subsequent lawsuit

Question 38

How much time does a party have to respond to an amended pleading? (P2)

Answer 38

Under Federal Rule of Civil Procedure 15: Unless the court orders otherwise, a responding party generally must respond to an amended pleading within (1) the time that remains to respond to the original pleading (e.g., an answer is generally due within 21 days after service of process) or (2) 14 days after service of the amended pleading—whichever occurs later. Note: Look out for questions where the court does order otherwise

Question 39

When is a jury instruction error preserved for appeal? (P2)

Answer 39

A jury-instruction error is preserved for appeal when a party timely objects to the instruction on the record and states the grounds for the objection. An objection is timely if it is made promptly after learning that a jury instruction has been or will be given OR that a request has been refused.

Question 40

Can a district court correct a clerical mistake/mistake arising from oversight when an appeal has already been initiated?

Answer 40

A district court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record. The court may do so on its own initiative (i.e., sua sponte) or pursuant to a party's motion BEFORE an appeal from the judgment or order is docketed. However, AFTER an appeal is docketed, the district court can correct the mistake only with the appellate court's leave (i.e., permission).

Question 41

One what basis can a party can seek extraordinary relief from a district court's final judgment? And what is the time limit?

Answer 41

A party may obtain extraordinary relief based on (1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence, or (3) an opposing party's fraud, misrepresentation, or misconduct. But the relief must be obtained within ONE YEAR of the entry of a final judgment

Question 42

What are substantive issues for the purposes of diversity jurisdiction?

Answer 42

Substantive issues include 1) the elements of a claim or defense, 2) the applicable burden of proof, and 3) the statute of limitations

Question 43

What must a defendant's answer include to avoid admission?

Answer 43

A defendant's answer must include admissions or denials of each allegation in the plaintiff's complaint. A failure to deny these allegations generally results in them being admitted and conclusively established. However, damages-related allegations cannot be admitted by the defendant's failure to deny them in an answer.

Question 44

When may a court order a physical or mental examination?

Answer 44

The court where a lawsuit is pending may order a physical or mental examination of a party when (1) that party's condition is in controversy, (2) the motion is based on good cause, and (3) the order provides notice specifying the time, place, manner, conditions, and scope of the exam, as well as the person who will perform it.

Question 45

Are the following defenses (Lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process) waived if not raised in the initial answer or pre-answer motion? (P3)

Answer 45

Not necessarily. These defenses are waived if it is not asserted (1) in a pre-answer motion or (2) in the original answer OR an answer amended as a matter of course. An answer can be amended once as a matter of course within 21 days of serving the answer or being served with a responsive pleading or Rule 12(b) motion.

Question 46

What are the two ways a suit can be dismissed (FRCP 41)? How does prejudice apply? (P3)

Answer 46

Under FRCP 41, a suit can be dismissed in two ways: - Voluntary dismissal – when the plaintiff moves to dismiss the suit - Involuntary dismissal – when the defendant moves to dismiss the suit The first voluntary dismissal of an action in federal court is generally without prejudice, thereby allowing the plaintiff to sue the defendant on the same claim in the future. But an involuntary dismissal is with prejudice (unless the court orders otherwise) and precludes the plaintiff from suing on the same claim in the future

Question 47

What rules govern a party's ability to strike a juror during voir dire (jury selection) (P3)

Answer 47

During jury selection, each party is entitled to (1) three peremptory challenges to strike potential jurors for any reason (other than race, ethnicity, gender) without an explanation and (2) an unlimited number of challenges for cause to strike potential jurors for bias or lack of impartiality.

Question 48

Which allegations must parties respond to? (P3)

Answer 48

A defendant is required to respond to allegations in the plaintiff's complaint If the court orders a reply, then the plaintiff must respond to allegations in the defendant's answer as directed. Any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff. If no reply is ordered, then allegations in the answer are deemed denied by the plaintiff.

Question 49

What is the "no just reason for delay" rule regarding a final judgement? What is the rule regarding timing of appeal? (P3)

Answer 49

When an action involves multiple claims or parties, a district court may enter final judgment as to fewer than all claims or parties if it EXPRESSLY determines (i.e states) that there is no just reason for delay. However, if this express determination is not made, any court order that disposes of those claims or parties is not immediately appealable. Ex: A court issues an order that grants a third-party defendant's motion to dismiss a plaintiff's complaint for contribution for failure to state a claim upon which relief could be granted, but DOES NOT expressly determine that there is no just reason for delay In addition, even if the court expressly determines that there is no just reason for delay, a party may only appeal that judgment if the notice of appeal is filed with the district court clerk within 30 days after entry of that judgment. (confusing concept)

Question 50

What are the requirements for a plaintiff to assert a claim against a third-party defendant? (P3)

Answer 50

A plaintiff may assert a third-party claim against a third-party defendant if: (1) that claim arises out of the same transaction or occurrence as the plaintiff's claim against the defendant in the original complaint and; (2) the third-party claim satisfies original subject-matter jurisdiction.

Question 51

How is service of process properly made? (P3)

Answer 51

Process can be served by (1) following the rules of the state where the court is located or where service is made, (2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or (3) leaving the summons and complaint at the defendant's dwelling with a resident of suitable age and discretion.

Question 52

The final-judgment rule generally precludes federal appellate courts from hearing an appeal until the federal district court has entered a final judgment. But what is an interlocutory appeal and what are examples?

Answer 52

The interlocutory appeals statute allows certain equitable orders to be immediately appealed as a matter of right—e.g., when a district court grants, modifies, refuses, or dissolves a preliminary injunction. Examples include: I: Injunction (grant/denial) C: Certification by district court C: Class Action Certification A: Appointment of receiver A: Admiralty cases C: Collateral-order doctrine B: Bankruptcy cases M: Mandamus (petition for writ) P: Patent-infringement order In Certain Circumstances, An Appeal Can Be Made Prematurely

Question 53

How does a federal court sitting in diversity know whether to apply state or federal law if it is unclear whether an issue is substantive or procedural?

Answer 53

Federal courts sitting in diversity must apply state law to substantive issues and federal law to procedural issues However, there are instances when it is unclear whether an issue is substantive or procedural. In these cases, a court must then determine if a federal law directly addresses the issue. Examples of federal law that can directly address an issue include federal constitutional provisions, statutes, and rules (but not federal common law)

Question 54

What does a does a federal court sitting in diversity do when it is unclear whether an issue is substantive or procedural and state and federal law and a conflict exists? What about when no federal law applies? Aside: When is an issue considered substantive under state law?

Answer 54

If a conflict exists, and there is valid federal statute or rule of procedure on point, then the district court must apply federal law rather than state law so long as the rule: 1) is arguably procedural, and 2) does not abridge, modify, or enlarge a substantive right. If no federal law applies, the Erie analysis must be used to decide if a federal court should supplant state law with federal common law. In making this determination regarding federal common law, the district court will ask whether 1) forum-shopping or inequitable administration of the laws would result if state law is not applied and 2) whether there is a countervailing federal policy interest. If the answer to #1 is no, then the district court will generally apply federal common law, rather than state law. If yes, then the court will apply state law, UNLESS 2) applies and affirmative countervailing federal interests are at stake that warrant application of federal law. Come back to add in when a state law is considered substantive, from a previous question (tricky concept, make sure I understand)

Question 55

When can a court impose monetary sanctions for violations of FRCP Rule 11?

Answer 55

A court can impose monetary sanctions for violations of Federal Rule of Civil Procedure 11(b). Sanction proceedings can be initiated (1) by a party's motion or (2) on the court's own initiative—so long as the judge issues an order to show cause.

Question 56

What is the timing for when a district court can correct an error it its judgement?

Answer 56

Before an appeal is docketed in the appellate court, a district court can correct a mistake in a judgment, order, or other part of the record on its own initiative or pursuant to a party's motion. But after an appeal has been docketed, the district court can correct the mistake only with the appellate court's leave.

Question 57

When is permissive joinder allowed vs not allowed?

Answer 57

Permissive joinder is allowed when 1) Joint and several relief is asserted by them OR the claim arises out of the same transaction or occurrence; 2) A common question of law or fact to all plaintiffs exist; AND 3) Subject matter jurisdiction exists for each claim (including supplemental jurisdiction) Note: But when the original claim is based solely on diversity jurisdiction, supplemental jurisdiction is not permitted if adding the supplemental claim would destroy complete diversity of citizenship.

Question 58

How is a forum-selection clause treated regarding transfer of venue?

Answer 58

Moreover, when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon 1) a strong showing that transfer would be unreasonable and unjust or; 2) that the clause was invalid for reasons such as fraud or overreaching. Furthermore, the Supreme Court has held that a forum selection clause should be given “controlling weight in all but the most exceptional cases."

Question 59

How does a forum-selection clause impact choice of law? How does this differ from when the original venue was proper?

Answer 59

Generally, if the venue of an action is transferred when the original venue is proper, then the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law. However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the conflict-of-law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.

Question 60

What are the definitions of claim preclusion and issue preclusion? What is the main difference?

Answer 60

The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits of an action precludes the parties from relitigating an identical claim in a subsequent action. The doctrine of issue preclusion (i.e., collateral estoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) was a party to the original action (i.e., offensive collateral estoppel).