Civil Procedure

Question 1

What is an injunction?

Answer 1

An order prior to trial to preserve the status quo

The adverse party must be given notice and an opportunity to be heard

Question 2

What must the plaintiff show for a court to grant an injunction?

Answer 2

(1) The plaintiff will suffer irreparable harm if the injunction is not granted
* Most important factor. If the plaintiff has an adequate remedy at law (e.g. money damages will adequately compensate) then the injunction will be denied
(2) Harm to the plaintiff outweighs the harm to the defendant
(3) The plaintiff shows that he is likely to be successful on the merits; and
(4) the favpublic interestors granting the injunction if the injunction is not granted

Question 3

What is a temporary restraining order?

Answer 3

If irreparable injury will occur before the hearing on the preliminary injunction, a party may seek a temporary restraining order to preserve the status quo until the hearing.

Generally, the adverse party must be given notice, but a TRO may be imposed without notice of a hearing for a maximum of 14 days by meeting three conditions:

• (1) The moving party states specific facts in an affidavit or verified complaint of the irreparable injury she will suffer if the TRO is not granted
• (2) The moving party certifies in writing the efforts she made to notify the adverse party and the reasons why notice not be required
• (3) The moving party provides security to pay for any damages incurred by the adverse party if the court later finds he was wrongfully restrained

A person must have actual notice of a TRO before he can be held in contempt for violating it

Question 4

What must be included in a complaint?

Answer 4

(1) Grounds for federal jurisdiction
(2) A short statement of the claim showing the pleader is entitled to relief, and
* Recently the court has required statement of a plausible, not just possible, claim
(3) A demand for judgment for relief, which may be in the alternative

Question 5

What are the defenses one can raise in a motion to dismiss?

Answer 5

Lack of subject matter jurisdiction

Lack of personal jurisdiction

Improper venue

Insufficiency of process

Insufficiency of service of process

Failure to state a claim upon which relief can be granted

Failure to join indispensable parties

Question 6

What must the defendant put in his answer?

Answer 6

A specific denial or admission for each averment in the complaint, or a general denial with specific admissions of the averments

A statement that the defendant doesn’t have knowledge or sufficient information to constitute a belief constitutes as a denial

Failure to deny constitutes an admission

Must also state any affirmative defenses

A reply is filed by the plaintiff in response to the answer (generally by court order)

A party may set out as many alternative claims or defenses, regardless of consistency

Question 7

What is default and a default judgment?

Answer 7

A default is a notation in the case file by the court clerk that there has been no answer filed within the time limit

• A default can be set aside if good cause is shown
• The court clerk will send all parties a notice that default has been entered

A default judgmen is a judgment that is entered against the defendant because he did not oppose the case

• If the defaulting defendant has appeared, he is entitled to notice at least seven days prior
• Once a default judgment has been entered, the defendant loses the ability to contest liability, but can still appear at a hearing to contest damages

Question 8

What is a compulsory counterclaim?

Answer 8

If the claim arises from the same transaction or occurrence as the plaintiff’s claim, it must be pleaded as a counterclaim or it will be barred

• Federal courts have supplemental jurisdiction over a compulsory counterclaim that otherwise does not meet the requirements for diversity of citizenship or federal question jurisdiction

Question 9

What is a permissive counterclaim?

Answer 9

Any other claim the defendant has against the plaintiff

Must meet jurisdictional requirements

Question 10

What are the rules for amending pleadings?

Answer 10

A pleading may be amended once within 21 days of its service, or, if the pleading is one in which a responsive pleading is required, 21 days after service of a responsive pleading or pre-answer motion

After, leave to amend is by consent of the court

An amendment to a pleading that arises from the same conduct, transaction, or occurrence set forth in the original pleading generally is deemed filed on the date that the original pleading was filed (relates back)

Question 11

What are the rules for relation back when an amendment names a new party?

Answer 11

It will relate back if, within the time for service of process, the new party had sufficient notice of the action to avoid prejudice and knew or should have known that, but for the mistake concerning identity, she would have been named originally

Question 12

What is compulsory joinder?

Answer 12

A plaintiff must join all interested parties or face dismissal if the following standards are met:

(1) Should the absentee be joined
(2) Can the absentee be joined, and
(3) If the absentee cannot be joined, should the action proceed?

Question 13

When should the absentee be joined?

Answer 13

Complete relief cannot be accorded among the other parties to the lawsuit in the party’s absence, or

The absentee has such an interest in the subject matter that a decision in his absence will either impair or impede his ability to protect the interest or leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations

Question 14

Can the absentee be joined?

Answer 14

Ask If the absentee is subject to service of process

If the court has personal jurisdiction over the absentee, and the absentee’s presence would not destroy diversity jurisdiction or venue, the absentee must be joined

Question 15

Should the action proceed without the absentee?

Answer 15

Consider the prejudice to the absentee and parties, adequacy of judgment, ability to shape relief to avoid prejudice, availability of alternatives

If the court finds prejudice, the action will be dismissed

Question 16

What are the requirements for class action?

Answer 16

(1) The class is so numerous that joinder of all members is impracticable
(2) There are questions of law or fact common to the class
(3) Named parties’ interests are typical of the class
(4) Named parties will adequately represent the interests of the absent members of the class, and
(5) One of the following is present:

• (a) Separate actions would create a risk of inconsistent results or impair the interests of unnamed parties
• (b) The defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole, or
• (c) Common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication

Question 17

When is subject matter jurisdiction established under the Class Action Fairness Act?

Answer 17

(1) Any class member is of diverse citizenship from any defendant
(2) The amount in controversy in the aggregate exceeds $5 million (adding all class claims together), and
(3) There are at least 100 members in the proposed class

Any defendant may remove the case to federal court, even if a defendant is a citizen of the forum

Question 18

When must a court decline jurisdiction under the Class Action Fairness Act?

Answer 18

(1) More than two-thirds of the proposed plaintiffs are citizens of the state where the action was filed
(2) A defendant from whom “significant relief” is sought is a citizen of that state
(3) The “principal injuries” were incurred in the state in which the action was filed , and
(4) No similar class action has been filed within the prior three years

Question 19

What is interpleader?

Answer 19

A suit instituted by a person in the position of a stakeholder to require the adverse claimants to determine which has the valid claim to the stake

It applies if separate actions might result in double liability against the stakeholder

Question 20

What are the differences between Rule 22 interpleader and Section 1335 interpleader?

Answer 20

Rule 22 requires (1) complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue, or (2) a federal question

Section 1335 requires only that one claimant must be diverse from one other and $500 be in issue

Question 21

What are the standards for cross-claims?

Answer 21

Co-parties may assert claims against each other that arise out of the same transaction or occurrence

• Since related to the original claim, it generally falls within the court’s supplemental jurisdiction

Question 22

What are the three types of disclosures required?

Answer 22

Names, addresses, phone numbers of people likely to have discoverable information

• Do not have to disclose if the use is solely for impeachment

Copies or descriptions of documents, electronically stored information, and tangible things in the disclosing party’s possession or control that disclosing party may use to support claims or defenses (i.e. plaintiff supplies supporting documents to support his claim; defendant supplies supporting documents to support his defense)

• Do not have to disclose if the use is solely for impeachment

Computation of damages and materials from which the computation is based

Copies of insurance agreements under which an insurer might be liable

Must be made within 14 days after conference of parties under Rule 26(f)

Question 23

What are included in disclosures of expert testimony?

Answer 23

The identities of expert witnesses expected to be used at trial

If the expert is specially retained to provide expert testimony, or his duties as an employee of the party is to regularly give expert testimony, then he must have a signed report stating qualifications, opinions expressed, basis for opinions, and cases from the last four years in which he has testified

Otherwise, the following disclosures are required: identity of the expert, the subject matter on which he will testify, and a summary of his facts and opinions

In the absence of a court order for when the disclosure is to be made, it must be made at least 90 days before trial

Question 24

What are included in pretrial disclosures?

Answer 24

Witnesses expected to call

Witnesses she will call if need arises

Witnesses whose testimony will be presented by means of a deposition

A list of documents or exhibits expected to offer

Evidence or witnesses used solely for impeachment need not be disclosed

A party must serve these disclosures at least 30 days before trial

Within 14 days after the disclosure the opposing party may serve objections to use of a deposition or to admissibility of disclosed documents and exhibits

Question 25

What type of information is generally discoverable?

Answer 25

Any **nonprivileged matter that is relevant** to any party's claim or defense and is proportional to the needs of the case, taking into consideration the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to information, the parties resources, the importance of discovery in resolving the issues, and **whether the burden and expenses of discovery outweigh the likely benefits** It is **not required the information itself be admissible at trial**; the standard is the information sought is **reasonably calculated to led to the discovery of admissible evidence**

Question 26

How does a party compel discovery?

Answer 26

An order from the court compelling discovery The movant must certify he has, in **good faith, conferred or attempted to confer with the party** to avoid court intervention The court **will not compel if nondisclosure was substantially justified** The compelling party generally must pay costs, including attorney's fees, for the motion

Question 27

When can a party use a deposition at trial?

Answer 27

**To impeach** the testimony of the deponent as a witness If the deponent is **dead or greater than 100 miles** from the place of trial **or is otherwise unavailable** (usually because of age, sickness, or imprisonment), or for any other person due to exceptional circumnutates Or for **any purpose** if the deponent is a **adverse party**

Question 28

What are pretrial conferences?

Answer 28

Used to expedite trial, foster settlement, and a final pretrial conference to formulate a plan for trial

Question 29

Can the judge dictate the order of evidence at trial?

Answer 29

Yes. The final pretrial conference will formulate a plan for the trial, including a program for admission of evidence After the pretrial conference, the court issues an **order that controls the course of events at trial**, including issues needing resolution and the order in which they are presented to the jury The order supersedes pleadings by the parties

Question 30

What is voluntary dismissal by a plaintiff?

Answer 30

Without prejudice, once as a matter of right; also possible by stipulation or by court order If dismissed as a matter of right without prejudice, must be **done before defendant files answer or motion for summary judgment**

Question 31

What is involuntary dismissal?

Answer 31

Plaintiff fails to prosecute the case or to comply with the Rules or a court order May occur any time

Question 32

What is a motion for judgment on the pleadings?

Answer 32

On the face of the pleadings (without considering matters outside the pleadings), the moving party is entitled to judgment. Treated as a motion for summary judgment if accompanied by outside matters Must be filed after pleadings are closed but not so late as to delay trial

Question 33

What is summary judgment?

Answer 33

**No genuine dispute of material fact** and moving party is **entitled to judgment as a matter of law** May be supported by pleadings, affidavits, and discovery materials Unless local rule or court order provides otherwise, a party may file a motion for summary judgment **at any time until 30 days after close of discovery** If a motion is premature, a judge may defer ruling on it

Question 34

What is a judgment on partial findings?

Answer 34

In a nonjury trial, the judge may enter a judgment as a matter of law if she makes dispositive partial findings on a claim During trial, once the judge has heard **sufficient evidence to make dispositive findings and all parties have been fully heard on the issues**

Question 35

What is a judgment as a matter of law (directed verdict)?

Answer 35

Evidence viewed in light most favorable to motion's opponent leads **a reasonable person to conclude in favor of the moving party** Must be **made after the opponent has presented case but before submission to the jury**

Question 36

What is a renewed motion for judgment as a matter of law (JNOV)?

Answer 36

The **verdict returned** could **not have been reached by reasonable persons** The moving party must have previously sought judgment as a matter of law sometime during trial Must be made **within 28 days after the entry of a judgment**

Question 37

What is a motion for a new trial?

Answer 37

The court may grant a new trial because of an **error during the trial, or** because the **verdict is against the weight of the evidence** If the verdict is excessive, the court may order a new trial or offer the plaintiff **remittitur,** which **allows the plaintiff to choose between a lesser award or a new trial**

Question 38

When can a party appeal an order?

Answer 38

A **final order** that **disposes of the whole case** * The final order must **dispose of all claims by all parties on the merits** to dispose of the whole case * Judgment is then considered final **Exception** - the c**ourt may enter a final judgment as to fewer** than all of the claims when: * (1) an **express determination** that there is **no just reason for delay**, and (2) a **direction for the entry of judgment** * This type of final judgment **is appealable** without disposing of other claims * The judgment **severs the claims** adjudicated from the other claims in the case

Question 39

What is an interlocutory appeal?

Answer 39

A **discretionary appeal** available when (1) the **trial judge certifies** that the interlocutory order involves a **controlling question of law**, and immediate appeal from the order **may materially advance the ultimate termination** of litigation, and (2) the **court of appeals agrees** to allow the appeal

Question 40

What is mandamus?

Answer 40

An **order commanding a trial judge to act, or a prohibition** on the judge to refrain from acting Writs of mandamus are only available **if an appeal be will insufficient** to **correct a problem** and the trial court's actions constitute **a serious abuse of power** that must be **immediately corrected** Only available in **exceptional circumstances**

Question 41

What are the applicable time periods for filing?

Answer 41

**14 days** * Expiration of TRO * Time to file jury demand after last pleading directed to the jury-triable issue is served * Time to appeal class action certification or denial * Time to file initial disclosures after first conference **21 days** * Time after service of complaint to **answer or file a Rule 12 pre-answer motion** * Time to **amend pleading once**, as a matter of right, after its service or after responsive pleading or motion is served * Time to withdraw pleading after a Rule 11 motion is served **28 days** * Time after judgment to file a r**enewed motion for judgment as a matter of law** * Time after judgment to f**ile a motion for a new trial** **30 days** * Time for **initial removal** * Time for **remand** * Time to return request to **waive service of process** * Time for **appeals** * Must file **pretrial disclosures** at least 30 days before trial **60 days** * Time to **answer** the complaint or file a pre-answer motion **if D waives services of process** (add 30 days if outside of the US) **90 days** * General time limit for **service of process** * Must file **expert testimony disclosures** at least 90 days before trial **1 year** * Outer time limit for **removal based on diversity** * Outer time limit for **new trial based on newly discovered evidence**

Question 42

What is claim preclusion?

Answer 42

Also known as res judicata Once a final judgment on the merits has been rendered on a particular cause of action, the plaintiff is barred from trying the same cause of action in a later lawsuit

Question 43

What is issue preclusion?

Answer 43

Also known as collateral estoppel (1) A **final judgment** for the plaintiff or defendant (2) As to issues **actually litigated** and **essential to the judgment** (3) Between the **same plaintiff and same defendant** (4) **precludes** litigating **the issues i**n a **subsequent case** on a **different cause of action**

Question 44

What is personal jurisdiction?

Answer 44

It concerns the court's power over the parties * Not the court's power over the case; that is subject matter jurisdiction The primary issue to resolve is can plaintiff sue defendant in the state?

Question 45

What is the two-step analysis for personal jurisdiction?

Answer 45

To satisfy a **statute**, and To satisfy the **Constitution (due process)** Generally the same both in federal and state court

Question 46

What is the statutory step?

Answer 46

Each state is free to have its own statutes (**long-arm statute**) for in personam jurisdiction. In most states, the statute reaches the full extent of the Constitution For MEE, make sure to **mention that one needs a state statute and then move to the constitutional analysis**

Question 47

What is the Constitutional analysis?

Answer 47

Does the defendant have **such** **minimum contacts** with the forum so that jurisdiction d**oes not offend traditional notions of fair play and substantial justice**? The three factor analyzed to determine whether the test is met are: * **Contact** * **Relatedness** * **Fairness** For an essay, engage all relevant factors and come to a reasonable conclusion

Question 48

What is the contact factor?

Answer 48

There must be a **relevant contact** between defendant and the forum state. Two additional factors must be addressed: * (1) The contact must result from **purposeful availment** from defendant's **voluntary act** * Defendant must **reach out** to the forum and the **contact must come from reaching out** to the forum * Ex.: Marketing a product in the forum, Using the roads of the forum, Establishing domicile in the forum, Traveling in the forum, Sending a tortious e-mail to the forum * Defendant can **purposefully avail** himself **without stepping into the forum** by causing an effect on the forum * (2) It must be **foreseeable** that defendant could be sued in the forum

Question 49

What is the relatedness factor?

Answer 49

Plaintiff's **claim** must **arise from contact** with the forum Determines whether the court has **general or specific** personal jurisdiction

Question 50

What is the fairness factor?

Answer 50

Only addressed in **specific personal jurisdiction** cases Three additional factors: * (1) **Burden on defendant and witnesses** * Does due process guarantee that the suit will be in the most convenient forum for defendant? * The forum is constitutionally permissible **unless defendant** can show that it puts her at a **severe disadvantage.** * Difficult burden to meet because the relative wealth of the parties is not determinative * (2) **The state's interest** * The forum state may want to provide a courtroom for its citizens, who are allegedly being harmed by out-of-state citizens * **Always true** if **plaintiff is a citizen** * (3) **Plaintiff's interest** * Plaintiff prefers to sue in her home sate

Question 51

What is the difference between specific personal jurisdiction and general personal jurisdiction?

Answer 51

If the claim arises from **defendant's contact** with the forum, then **specific** For **general**, defendant must be "**at home**" in the forum * A person is at home w**here domiciled** * A **corporation** is at home where (1) **incorporated**, and (2) where it has its **principal place of business** * A person or corporation can be sued in the state where general jurisdiction is present for any claim (i.e. if defendant is domiciled in TX but claim arose in NM, the plaintiff can sue defendant in TX court for the claim arising out of NM). Suppose D is domiciled in State A but is voluntarily present in State B when served with process for a suit in State in B. Does this "tag" jurisdiction make D subject to general personal jurisdiction in State B (even though not "at home" in State B)? Yes, the Supreme Court has never rejected it

Question 52

What types of suits can state courts hear?

Answer 52

Generally, any type of case as long as personal jurisdiction is satisfied * Most cases arising under federal law can be heard in state court * There are a few limited exceptions in which a federal court has exclusive jurisdiction (e.g. patent infringement, bankruptcy, some federal securities and antitrust claims)

Question 53

When does a federal court have subject matter jurisdiction?

Answer 53

(1) **Diversity of citizenship** (2) **Federal question** Parties **cannot consent to subject matter jurisdiction**

Question 54

What are the requirements to meet diversity of citizenship?

Answer 54

(1) The case is either (a) between **citizens of different U.S. states**, or (b) between a citizen of a US state and a citizen of a foreign country, and * If the citizens are two foreign citizens with no US citizen, cannot sue under diversity (2) the amount in controversy **exceeds $75,000**

Question 55

What is the complete diversity rule?

Answer 55

Diversity does not exist if **any plaintiff** is a **citizen** of the same state as **any defendant**

Question 56

What is the state of a US citizen?

Answer 56

The state where she is **domiciled**

Question 57

How does one establish a new domicile? (commonly tested)

Answer 57

(1) **presence** in the new place, and (2) the **intent** to make the place one's **home for the foreseeable future** * Factors to establish intent include taking a job, buying a house, joining civic organizations, registering to vote, qualifying for in-state tuition Presence with no intent is not enough; similarly, intent with no presence is not enough

Question 58

At what point in time do you test for diversity?

Answer 58

The date the complaint is filed

Question 59

What is the citizenship of a corporation? (commonly tested)

Answer 59

(1) **Every state** and country **where incorporated** and (2) The one state or country of its **principal place of business**

Question 60

How do you determine the principal place of business?

Answer 60

The "**nerve cente**r" * Where managers **direct, coordinate, and control** business activities Can only have one principal place of business

Question 61

What is the citizenship of unincorporated associations?

Answer 61

The citizenship of **all partners or members** * Includes both **general and limited partners**

Question 62

What is the citizenship of a decedent, minor, or incompetent?

Answer 62

The place of domicile Not the citizenship of their representative

Question 63

What is aggregation?

Answer 63

Adding two or more claims to meet the amount in controversy requirement (exceed $75,000) A **plaintiff can aggregate** factually **unrelated claims against the same defendant** **Two or more plaintiffs cannot aggregate** their claims (i.e. P1 sues for $40,000 and P2 sues for $40,000 against same D; aggregation not permitted)

Question 64

What is the rule of aggregation for joint tortfeasors?

Answer 64

Use the total value of the claim against joint tortfeasors

Question 65

How do you establish the amount in controversy for equitable claims?

Answer 65

Apply **either** one of two tests: * From the **plaintiff's viewpoint**, the value of relief is worth more than **$75,000**, or * From the **defendant's viewpoint**, the cost to comply with the injunction would be more than **$75,000** Still, federal courts have the discretion to decline to hear cases based on equitable relief

Question 66

What are the requirements to satisfy a federal question?

Answer 66

Plaintiff's claim must arise under **federal law** * It is not enough that some federal issue is raised by the complaint * Look at the claim itself and ignore other material plaintiff alleged * Plaintiff must be enforcing a federal right A **defense alleged by defendant is irrelevant**

Question 67

What is removal jurisdiction?

Answer 67

Transferring a case **from state court to federal court** If removal was **improper,** then the federal court can **remand back** to state court * Plaintiff **moves to remand** back to state court **no later than 30 days after notice of removal** was filed in federal court (for any reason other than lack of subject matter jurisdiction, which includes both federal question and diversity jurisdiction) F**or lack of subject matter jurisdiction,** plaintiff can **move to remand at any time**; lack of subject matter jurisdiction is never waived

Question 68

Who is entitled to assert removal?

Answer 68

**Defendant**, by **filing a "notice of removal"** in **federal cour**t and stating the grounds for removal, and then **serving a copy** of the notice **on all plaintiffs.** Defendant then must **file a copy of the notice in state court** * **All defendants must join in the removal** (need not join same document as long as all file separate notices of removal)

Question 69

When must defendant assert removal?

Answer 69

**Within 30 days of service (not filing) of the first paper** that shows the case is removable * Usually within 30 days of service of process The 30 day rule **starts anew with service on an additional defendant**

Question 70

What cases can be removed?

Answer 70

Any case that meets the requirements for diversity of citizenship or federal question Two exceptions that apply for diversity of citizenship only: * **No removal if any defendant is a citizen of the forum** * E.g. P(GA) sues D1(MN) and D2(AL) on state law claims for $500,000 in an AL state court. Removal is improper because D2 is a citizen of AL * **Citizenship** would be **irrelevant** if the case invoked a **federal question** * If P voluntarily dismisses D2, then the case becomes removable within 30 days after dismissal (but no longer than one year after case was filed, unless D1 can show P acted in bad faith by adding D2 only to prevent removal) * No removal **more than one year** after the case was filed in state court

Question 71

What is supplemental jurisdiction?

Answer 71

It gets claims into a federal case even though the claims do not invoke diversity of citizenship or a federal question You **must have a claim that is already in federal court** based on diversity or federal question It is a form of subject matter jurisdiction

Question 72

What is the test to invoke supplemental jurisdiction?

Answer 72

The claim **must arise from the same transaction or occurrence** (the claim must share a **common nucleus of operative fact**)

Question 73

What is the limitation in which claims cannot invoke supplemental jurisdiction?

Answer 73

In a diversity case, **claims by plaintiff cannot invoke supplemental jurisdiction** ## Footnote **Diversity cases only**

Question 74

What are the discretionary factors for supplemental jurisdiction?

Answer 74

The **court has discretion to decline** claims that invoke supplemental jurisdiction * Generally if the state law claim is so complex or the state law issue would predominate the case

Question 75

What is the Erie doctrine?

Answer 75

A doctrine applied in federal court for **diversity of citizenship** questions to determine **whether the judge must follow state law**

Question 76

What are the steps of the Erie doctrine?

Answer 76

(1) Is there **a federal law** (federal constitution, statute, or rules of procedure) on point **that directly conflicts with state law**? * If so, **apply federal law** (based on the supremacy clause) (2) If there is **no federal law on point,** the federal judge **must apply state law** if the issue to be determined is **substantive** * The issue is substantive if it is (a) an element of a claim or defense, (b) statute of limitations, (c) rules for tolling statute of limitations, or (d) conflict of law rules (3) If there is no federal law on point and the issue is not one of the four above, the federal judge must determine whether the issue is substantive (the law is unclear on this point) * Factors to apply include: * (i) Outcome determinative - would applying or ignoring the state law affect some outcome of the case? If so, it is probably substantive, so apply state law * (ii) Balance of interests - does either federal or state system have a strong interest in having its rule applied? * (iii) Avoid forum shopping - if the federal court ignores state law on the issue, will it cause parties to flock to federal court? If so, it should probably apply state law

Question 77

What is the standard for venue?

Answer 77

Plaintiff may lay venue in any district where * **All defendants reside, or** * A **substantive part of the claim arose** Venue provisions **do not apply** if the **case was removed**. * In removal, venue is i**n the federal district embracing the state court where the action was filed** If the defendant does not reside in the United States, then venue is proper in any district

Question 78

What is the standard for transfer of venue?

Answer 78

The **transferee court must be a proper venue and have personal jurisdiction over the defendant** * An **exception** is that the court can transfer to any district (even an improper one) if **all parties consent and the court finds cause for the transfer**

Question 79

What are the choice of law rules as applied to venue?

Answer 79

The **law of the transferor court** applies [there is an exception, look it up]

Question 80

What factors does the court consider for venue transfer?

Answer 80

**Public factors** - what **law applies**, what **community should be burdened** with jury service, the desire to **keep a local controversy in a local court** **Private factors** - **convenience** of where the witnesses and evidence are The **burden** to argue convenience is **on the party seeking transfer** (usually the defendant)

Question 81

What is a forum selection clause?

Answer 81

A provision in which the parties agree that a dispute between them will be litigated in a particular place **Federal law enforces** forum selection clauses **if they are not unreasonable** Some states do not enforce forum selection clauses, but in federal court, federal law governs transfer

Question 82

If the original court is an improper venue, what may the court do?

Answer 82

It may either **transfer** in the interest of justice **or dismiss** the case

Question 83

What is forum non conveniens?

Answer 83

When a court dismisses or stays a case because the more convenient court is in a foreign country (making transfer impossible) Stay means to hold in abeyance (nothing happens, idea is P will likely

Question 84

What is the purpose of notice/service of process?

Answer 84

Defendant is entitled to notice that he has been sued Notice must be reasonably calculated, under all circumstances, to apprise interested parties of the action

Question 85

Who can serve process?

Answer 85

Any **nonparty** who is **at least 18** years old The process server does not need to be appointed by the court Process must be served **no longer than 90 days after the complaint is filed**

Question 86

How is process served?

Answer 86

**Personal service** - papers are **personally given** to defendant, can be anywhere **Substitute service** * Can be served at defendant's **usual abode** and served with **someone who resides** there who has **suitable age and discretion** * Does not need to be related to defendant or be 18 Service on **defendant's agent** - served to a **designated agent, or anyone who is an officer, manager, or general agent** **State law method** - any service that is permitted by state law of the state (a) where the federal court sits or (b) where service is made (e.g. service by mail) For businesses or organizations, must be either served on an agent or by a state law method If the person is a minor or incompetent, then must use the state law method of the state where service is to be made

Question 87

What time periods cannot be extended?

Answer 87

The district **court has discretion** to extend time periods Time periods that **can never be extended** are **renewed motions for judgment as a matter of law, motions to amend a judgment, and motions for new trial** (all must be **filed within 28 days of entering a judgment**), and **motions for relief from a judgment**