Civil Procedure

Question 1

Section 547 not applicable when…

Answer 1

Small claims division of superior count diversity jursdiction in federal court

Question 2

collateral estoppel

Answer 2

1) previous determination was necessary to the decision
2) Identical issue was previously litigated
3) Issue was decided in a decision was final and on the merits
4) precluded party was adequately represented

Question 3

12b motions must be accompanied by …

Answer 3

LRCi 12.1 requires that all dispositive motion filed under FRCP 12 be accompanied by a brief (20 pages max)

• opposing party has 20 days to file response brief
• movant then has 14 days to reply to opponent’s reply

Question 4

Rule 12(b) motion to dismiss

Answer 4

Before filing an answer, a defendant may move to dismiss an action for

1) 12b1 - lack of SMJ
2) 12b2 - lack of PJ
3) 12b3 - Improper venue
4) 12b4 - Insufficient process
5) 12b5 - Insufficient service of process
6) 12b6 - failure to state a claim upon which relief can be granted
7) 12b7 - failure to join a party under rule 19

Question 5

Motion to reconsider LRCi 7.3

Answer 5

14 days to file motion to reconsider a court’s order

1) Change in law
2) New evidence
3) Clear error or manifest injustice

Filed more than 14 ays after order must be treated as 60b new evidence motion

Question 6

Time limit to file answer

Answer 6

20 days or face default judgment

• served by publication = 30 days
• served via LAS = 30 days
• US or VI Govt = 60 days
• Service was waived = US 60 after waiver, Foreign = 90 days

Question 7

Appearance by defendant

Answer 7

A defendant appears by filing an answer to the complaint

Question 8

Good cause factors for failure to effect service

Answer 8

1) Reasonableness of plaintiff’s efforts
2) prejudice to defendant by lack of timely service
3) Whether plaintiff moved for extension of time to serve

Question 9

Failure to Serve

Answer 9

Court must either dismiss action
Or
Order that service be made within specified time

If good cause shown for failure, court must extend. If no cause, court has no discretion to extend.

Question 10

Proof of service

Answer 10

If service was not waived, the person effecting service must return proof of service to the court.

Does not affect validity of service.

Question 11

Constructive service/publication

Answer 11

must appear

1) in a newspaper of general circulation
2) In a jurisdiction designated by count to give greatest chance of notice
3) For a reasonable time - 1 per week for 4 weeks

Question 12

Service by publication

Answer 12

Where plaintiff cannot locate the defendant, he may have to resort to service by publication - only by court order.

Court can order constructive service if plaintiff shows:

1) Service cannot be made via FRCP4
2) Defendant cannot be found in the territory
3) A valid COA exists
4) The defendant is a proper party

Question 13

State or local govt

Answer 13

Delivering summons and complaint to its chief executive officer
Or
As proscribed by local laws

Question 14

Foreign Gov

Answer 14

Serve foreign gov in accordance with 28 USC 1608 via any special arrangement or international convention; if not through diplomatic channels

Question 15

US lt agencies Corporations, Officer, or Employees

Answer 15

Serve local US attorneys office w/ a copy by registered or certified mail to the attorney general in washington, DC and any non-party agency or officer whose order is challenged.

Question 16

Minor or incompetent outside US

Answer 16

Serve them in the manner prescribed by the foreign co law or as directed pursuant to a letter rogatery or other permissible means

Question 17

Incompetents

Answer 17

Serve both incompetent and his guardian

• one who has been judicially declared of unsound mind or incapable of conducting his own affairs for whom a guardian has been appointed

Question 18

Service upon minors and incompentents

Answer 18

Minors
Serve the minor personally and his father, mother, or guardian. If neither father, mother, or guardian are in VI
1) Person caring for minor
2) Person with whom the child resides
3) Child's employer

If minor in US, follow local law.

Question 19

Managing general agent

Answer 19

A person in such a position that there is a high likelihood that the papers will reach those persons in the organization responsible for protecting the firms interest in litigation.

Recipient understands the importance of the summons and complaint and will feel duty bound to make sure the employer gets them.

Question 20

Corps and assoc.

Answer 20

Serve domestic and foreign corporations, partnerships, or other unincorporated associations.

1) For defendant in US deliver a copy of summons and complaint to defendant
2) foreign corporation, serve as provided by international agreement or as directed by the court

Question 21

Method of service

Answer 21

1) Personal delivery
2) Mail
3) Publication (by leave of the court)

Question 22

Service of process -> how

Answer 22

Service shall be made by:

a) An adult - over 18
b) non-party
c) marshall
d) court appointed process server

Question 23

waiver of service

Answer 23

Individual, corporation, or association may waive service.

Minors and incompetents may not waive service.

Question 24

Service of process

Answer 24

FRCP 4

Plaintiff has 120 days to serve the defendant w/ the complaint and summons

• Summons is to be issued and signed by clerk

1) Must have been properly served OR
2) Appeared voluntarily (must still serve him)

Question 25

Plain Error Standard

Answer 25

1) There was an error 2) It is clear and obvious 3) it affects the appellants material rights 4) it substantial affects the notions of judicial fairness, integrity, and the reputation of the justice system

Question 26

Appealable as a right

Answer 26

to be appealable as a right the superior court order must be: 1) final or 2) must be classified w/in the categories of interlocutory orders

Question 27

Final Judgment Rule

Answer 27

Final judgment resolves all the claims between the parties and ends the litigation on the merits leaving nothing more to do but execute the judgment Magistrates order final only after it has been appealed and ruled on by superior court

Question 28

Section 33b appealable interlocutory orders

Answer 28

1) Supreme court has jurisdiction to review interlocutory orders of the VI superior court "granting, continuing, refusing or dissolving injunctions" 2) mandating the immediate reinstatement of a terminated employee 3) TRO continued w/o consent of parties beyond period permitted by statute

Question 29

Section 33(c) appealable interlocutory order: certification

Answer 29

VI Supreme Court has jurisdiction to hear interlocutory orders certified by superior court judge 1) Controlling question of law 2) substantial ground for difference of opinion 3) immediate appeal may materially advance 4) ultimate termination of litigation

Question 30

Declaratory judgment

Answer 30

is a judgment which determines the rights of parties w/o ordering anything be done or awarding any damages * force and effect of final decree * denial of interlocutory order denying declaratory judgment generally not appealable

Question 31

Case transfer to supreme court

Answer 31

1) Purely legal question 2) Issues of public importance 3) Issue of such urgency that the normal appellate process would be inadequate 4) explain why transfer would promote administration of justice

Question 32

Supreme court regulates the practice of law

Answer 32

* E-filing registration for bar admission applicants - pro hac - special admissions - regular admissions

Question 33

Pro hac 3 admission rule

Answer 33

No attorney or law firm may appear pro hac vice in more than a total of 3 causes - extended practice on a pro hac vice basis is expressly prohibited * local courts and dt courts * appearances from law firm are imputed to all attorneys w/in that firm

Question 34

Personal jurisdiction

Answer 34

1) In personam - where court has power to compel a party to act or refrain from acting 2) Avasi in rem (?) - court has power to determine particular person's rights w/ respect to a specific property 3) In rem court has power to determine the rights of anyone w/ respect to particular property w/in its borders

Question 35

Specific jurisdiction

Answer 35

Claim by claim basis 1) defendant purposefully directed activities toward the forum 2) litigation must arise out of those activities 3) court must then consider if exercise of jurisdiction comports w/ fair play and substantial justice

Question 36

general jurisdiction

Answer 36

contacts must be continuous and substantial count can hear all cases against the defendant regardless of how they arise

Question 37

long arm constitutional requirements

Answer 37

1) The defendant has purposefully availed himself of the benefits and protects of the forum state such that 2) hailing the defendant into court there does not offend traditional notions of fair play and substantial justice plaintiff must show min contacts

Question 38

VI Long arm statute (2 part showing)

Answer 38

1) Prima facie case for PJ over defendant | 2) prima facie showing that defendant's due process rights would not be violated by being hailed into court there

Question 39

Long arm statute - 8 ways to get jurisdiction BIPA BISI

Answer 39

1) Transacts any business in the VI 2) Contracts to supply services or things in the VI 3) Commits a tortious act or omission in the VI causing injury in the VI 4) Commits a tortious act outside VI causing injury in the VI * derive substantial revenues * engage in persistent course of conduct or * regularly solicit business in the VI 5) Has an interest in real property 6) Insures person or property in VI 7) Causes a woman to conceive or gives birth to a child 8) abandons a minor child

Question 40

Long ARM Statute

Answer 40

Long arm statute is concerned with whether it is appropriate for a court to exercise jurisdiction over an out of state defendant Must comport w/ LAS of forum and constitutional requirements

Question 41

Establishing personal jurisdiction

Answer 41

1) Presence in the VI 2) Long arm statute 3) Consent a) appointment of an agent for service of process b) general appearance c) forum selection clause in K

Question 42

Presence in the VI

Answer 42

Regardless of where the COA arose, a VI court may establish PJ over a person if such person is present in the VI 1) Domiciled in the VI 2) A corporation organized or maintains their principal place of business in VI 3) foreign corp authorized to do business 4) foreign corp with local subsidiary

Question 43

Long arm service of process

Answer 43

1) Personal delivery in manner proscribed for service w/in VI 2) in manner proscribed for service where service is to be made 3) by mail requiring a receipt 4) in manner required by foreign authority in response to letter rogatery 5) as directed by the court

Question 44

Inconvenient forum ("Forum non conveniens")

Answer 44

Even where it has jurisdiction, a court may dismiss or stay an action in whole or in part if it finds "that in the substantial interest of justice the action should be heard in another forum"

Question 45

FNC Private interests

Answer 45

The private interests: 1) interests of the litigant 2) ease of access to sources of proof 3) availability of compulsory process of attendance of witness 4) viewing the scene 5) cost of obtaining willing witnesses 6) Practical problem of making trial of a case easy, expeditious, and inexpensive

Question 46

FNC Public Factors

Answer 46

1) Administrative difficulties from congested courts 2) The burden of jury duty upon a people in a community w/ no connection to the COA 3) the local interest of having controversies decided at home 4) avoiding unnecessary problems of applying foreign law

Question 47

Venue

Answer 47

Civil actions must be brought in the judicial division 1) Where the defendant resides 2) where COA arose 3) where defendant may be served w/ process

Question 48

Corporation and venue

Answer 48

A corporation deemed to reside in any judicial district in which it is subject to PJ at the time the action is commenced

Question 49

Complaint

Answer 49

All civil actions are commenced by filing a complaint w/ the court FRCP 8a 1) grounds for the court jurisdiction 2) Short and plain statement of the claim 3) demand for relief

Question 50

Case initiation. New Cases must include:

Answer 50

1) Complaint/petition 2) Supporting documents 3) Civil litigant data form 4) filing fee 5) certificate of service

Question 51

Ad Damnum Clause

Answer 51

VI code bars a claimant from requesting a specific dollar sum of damages in a complaint or cross complaint in tort or contract actions or where claimant is otherwise seeking to recover damages for injury or death

Question 52

General relief

Answer 52

While claimant cannot specify amount of damages, he may instead state a claim for general relief and must state that damages are w/in the jurisdictional limits of the count Party can ask for specific amount of damages at trial

Question 53

Fictious name of defendant

Answer 53

If plaintiff does not know defendant's true name, he may use a fictious name - process may be issued against defendant using such fictious name and providing a description of defendant sufficient to identify him Plaintiff bears burden of moving diligently to identify the defendant prior to entry of judgement pleadings must be amended to use defendants true name

Question 54

Security for costs

Answer 54

Section 547 provides that a defendant may require a non-resident plaintiff to post a bond up to $1000 for costs which may be awarded against such plaintiff or foreign corporation Multiple defendants increase bond by $500 up to $3000 Action is stayed until security posted. Court may dismiss if not posted w/in 30 days.