Civil Procedure

Question 1

Complete diversity - Parties

Answer 1

For purposes of diversity of citizenship jurisdiction, complete diversity means that no plaintiff may be a citizen of the same state as any defendant.

Ex: If a plaintiff corporation is a citizen of multiple states and a defendant corporation is a citizen of one of these states, there is NO COMPLETE DIVERSITY.

Question 2

Witness’ Immunity from Service of Process

Answer 2

If a witness travels to another jurisdiction solely to be a witness in a court action, the witness is immune from service of process. Therefore, the witness may not be served with process in person while in the other jurisdiction for court purposes. The immunity rule applies to witnesses, parties, and attorneys alike.

Question 3

Amendments to pleadings - “Relates back”

Answer 3

Generally, amendments to pleadings relate back to the date the original pleading was filed if the law that provides the statute of limitations applicable to the action permits relation back or the amendment concerns the same conduct, transaction, or occurrence that was set forth in the original pleading.

Question 4

Absentee - Court Personal Jurisdiction

Answer 4

An absentee MUST be joined if it is determined that an absentee’s interest in the subject matter of the litigation would be affected by a judicial determination of a case, the court has personal jurisdiction over the absentee, and joining him would not destroy jurisdiction or venue.

Question 5

Representative ability to sue

Answer 5

Named representatives will be permitted to sue on behalf of a class if:

(i) The class is so numerous that joinder of all members is impracticable;
(ii) There are questions of law or fact common to the class;
(iii) The named parties’ interests are typical of the class;
(iv) The named representatives will ensure the fair and adequate representation of the interests of absent members of the class; and
(v) The action meets the definition of any of the following three types of class actions found in Rule 23(b): i. Separate actions by class members would create a risk of inconsistent results or, as a practical matter, would impair the interests of other absent members of the class; or ii. A 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 iii. There are questions of fact or law common to members of the class that predominate over individual issues and a class action is superior to the alternative methods of adjudication.

Question 6

TRO - Temporary Restraining Orders

Answer 6

TROs may be issued without notice to the other party.

Question 7

Right to Jury Trial - Seventh Amendment

Answer 7

The Seventh Amendment provides the right to a jury trial in federal courts for the determination of facts in all suits at common law where the amount in controversy exceeds $20.

Question 8

General verdict with special interrogatories

Answer 8

A general verdict with special interrogatories is a verdict in which the jury finds for the plaintiff or defendant, determines the damages or relief to be given, and answers specific questions of fact.

Question 9

Summary judgment - requirements

Answer 9

The standard for summary judgment is that:

• there is no genuine dispute of material fact; and
• the moving party is entitled to judgment as a matter of law.

Question 10

Directed Verdict (or judgment as a matter of law)

Answer 10

A court cannot grant a motion for judgment as a matter of law (“JMOL”) until the nonmoving party has been fully heard and the court has found that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue.

Question 11

New trial - requirements

Answer 11

A new trial may be granted when:

• the verdict is excessive, inadequate, or against the weight of the evidence.

Note that a new trial also may be granted because of an error during the trial (usually going to the admissibility of evidence or the propriety of the instructions) or because of jury misconduct.

Question 12

Involuntary dismissal - Federal Rule 41(b)

Answer 12

A court may, under Federal Rule 41(b), order an involuntary dismissal against a plaintiff on the defendant’s motion or on its own motion for the failure to prosecute the case, to comply with the Federal Rules, or to comply with a court order.

Question 13

Claim preclusion (Res judicata) - Criteria

Answer 13

For claim preclusion (res judicata) to apply, all of the following criteria must be met:

(i) the earlier judgment is a valid, final judgment on the merits;
(ii) the cases are brought by the same claimant against the same defendant; and
(iii) the same cause of action is involved in the later lawsuit.

Question 14

Issue Preclusion (Collateral Estoppel) - What requirements to a party to be bound by issue preclusion?

Answer 14

For a party to be bound by issue preclusion:
(i) there must have been a final judgment;

(ii) the issue must have been actually litigated and determined;
(iii) the issue must have been essential to the judgment; and
(iv) the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action.

Question 15

Motion for relief - timing

Answer 15

A motion for relief from judgment because the judgment is void must be brought within a reasonable time, but there is no outermost deadline.

When relief is based on (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that, by due diligence, could not have been discovered in time to move for a new trial; or (iii) fraud, misrepresentation, or other misconduct of an adverse party, the motion must be brought within a reasonable time not to exceed one year.

Question 16

US Supreme Court - Appelate jurisdiction

Answer 16

The Supreme Court may hear some appeals from state courts and some appeals directly from federal district courts.

The Supreme Court hears, on direct appeal, any order granting or denying an injunction in any proceeding required to be heard by a three-judge district panel.

It also may hear by discretionary writ of certiorari final judgments of the highest court of a state if: (i) the validity of a treaty or federal statute is drawn into question; (ii) the validity of a state statute is drawn into question on the ground that it is repugnant to the federal Constitution or to a treaty or federal statute; or (iii) any title, right, privilege, or immunity is claimed under the federal Constitution or treaty or federal statute.

Question 17

Recognition of Judgments

Answer 17

Under the Full Faith and Credit Clause of the Constitution and federal statutes, a state court generally must recognize the judgments of a sister state and federal courts generally must recognize judgments of state courts.

Recognition of judgments is required between state courts, between state and federal courts, and between federal courts.

Question 18

State’s long arm statute

Answer 18

Looking at state statutes (particularly the state’s long arm statutes, which authorize jurisdiction over nonresidents of the state in certain circumstances) is the first step to determine if personal jurisdiction is authorized.

States have the power to decide over whom their courts may exercise personal jurisdiction. Additionally, even if the state statute authorizes personal jurisdiction over a particular defendant, the exercise of personal jurisdiction also must not offend the Due Process Clause of the U.S. Constitution.

Question 19

Proper venue

Answer 19

Venue in civil actions is proper in a judicial district in which:

• any defendant resides, if all defendants are residents of the state in which the district is located.
• a substantial part of the events or omissions giving rise to the claim occurred; or
• a substantial part of property that is the subject of the action is situated.

Question 20

Venue Transfer

Answer 20

Even where the original venue is proper, transfer is permitted to either:

(i) another district where the action might have been brought or (ii) a district to which all parties have consented (i.e. forum selection clause).

The policy behind this rule is that while venue may be correct, the parties or the witnesses might be greatly inconvenienced by the trial in the original forum.

Question 21

Discovery rules - Disclosure

Answer 21

Under Federal Rule 26, before making the required initial disclosures, a party must make a reasonable inquiry into the facts of the case.

Federal Rule 26 requires parties to disclose certain information to other parties without waiting for a discovery request.

Rule 26 requires a party to disclose all information then reasonably available that is not privileged or protected as work product regardless of whether the party’s initial investigation is complete or whether the other party refuses (or otherwise fails) to make the disclosures.

Question 22

Discovery - Work Product

Answer 22

Generally, the work product—a document or tangible thing—made by a party or representative of a party (such as the party’s attorney) is not discoverable if made in anticipation of litigation, unless the party requesting discovery can show substantial need and undue hardship if disclosure is not ordered.

Question 23

Federal court - Supplemental jurisdiction

Answer 23

Once one claim satisfies the requirements for original federal subject matter jurisdiction, the court has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding.

A defendant may remove an action that could have originally been brought in the federal courts.

Question 24

Erie Doctrine

Answer 24

Under the Erie doctrine, when a state law-based claim is brought in federal court based on diversity of citizenship, the federal court generally applies the substantive law of the state in which it is sitting. However, where a specific federal statute or the Federal Rules of Civil Procedure are on point, the federal court must apply federal procedural law as long as the federal rule is valid.

Question 25

Pretrial conference

Answer 25

The Federal Rules give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement.

Additionally, the court must require the disobedient party or counsel to pay expenses incurred (including attorneys’ fees) by other parties unless the court finds that circumstances make such an award unjust. Here, the judge does have the power to not only order a pretrial conference to expedite the trial and encourage settlement, but also to sanction the restaurant franchise to pay the restaurant owner’s travel expenses and attorneys’ fees for failing to appear.

Question 26

Indispensable party

Answer 26

To determine if the party is truly indispensable, the first step is to determine whether the absentee should be joined.

One reason why an absent party should be joined is when complete relief cannot otherwise be accorded among parties. However, under the tort law in a number of states, any single joint tortfeasor may be liable for the entire wrong, making complete relief for the plaintiff possible.

Another reason to join an absent party is if he has an interest in the subject matter of the suit such that, without his presence, his ability to protect his interest will be impaired or the existing parties will be subject to a substantial risk of incurring multiple or inconsistent obligations.

Question 27

Aggregation

Answer 27

For the purposes of determining the jurisdictional amount, plaintiff may aggregate all his claims that he has against a single defendant. THE CLAIMS NEED NOT BE RELATED.

Question 28

Third-party claim

Answer 28

Third-party claims may be maintained only if the defendant/third-party plaintiff alleges that the third-party defendant is liable to the defendant/third-party plaintiff for all or part of the defendant/third-party plaintiff’s liability to the plaintiff

Question 29

Voluntary Dismissal

Answer 29

If the defendant has not answered or filed a motion for summary judgment, the plaintiff may dismiss her case by filing a notice of dismissal.

When a voluntary dismissal without leave of court is not available (i.e., there has been an answer, motion, or previous dismissal), the court has discretion to grant dismissal on such terms and conditions as the court deems proper.

A plaintiff may of right dismiss an action one time without prejudice before the defendant serves its answer.

Question 30

Removal jurisdiction

Answer 30

A defendant in a state court may remove that case to federal court if it could have been filed originally in federal court (i.e. federal court would have had SMJ over the case)

When a case is removed from state to federal court, venue is set in the federal district court that embraces the state court.

Removal petition should be filed within 30 days of formal receipt of complaint.

A case is NOT REMOVABLE on the basis of diversity if any defendant is a citizen of the forum state.

Question 31

Forum Selection

Answer 31

When the parties have agreed to a valid forum selection clause, a district court should ordinarily transfer the case to the forum specified in that clause.

Incovenience and private interest factors do not play a role in transfers based in forum selection.

Public interest factors (rarely) may affect the parties’ forum selection clause.

Question 32

Business Entity Defendant - Which Venue?

Answer 32

A business entity defendant is deemed to reside in any judicial district in which the defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.

Question 33

Transfer based on improper venue

Answer 33

When a transfer is based on the ground that venue was improper, the law of transferee court applies.

Question 34

Proper Venue - Corporation - Business in all states

Answer 34

The US Supreme Court has determined the defendant corproation to be “at home” in the state. To be “at home” in a state, a defendant corporation must be incorporated in the state or have its principal place of business in the state.

Question 35

Proper venue - transfer from one proper venue to another

Answer 35

A trial court may transfer a case to another proper venue “in the interests of justice” (for ex: all witnesses and evidence are in another state).

Such a transfer has no strict time limit. Rather, transfer is left to the discretion of the trial judge, and the judge may refuse transfer where the case has been pending for some time and would work a prejudice to one of the parties.

Question 36

Service of process

Answer 36

Process may be served by any person who is at least 18 years of age and not a party.

Under Rule 4, an individual defendant may be served by leaving a copy of the papers at the individual’s dwelling or place of abode with someone of suitable age and discretion who resides there.

Question 37

Proper venue - New domicile

Answer 37

Federal venue in civil actions is proper in:

(i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and
(ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred.

Additionally, if at the time of the accident, the man’s domicile was in State A. It remains his domicile until he acquires a new one by being physically present in a new place while intending to make that new place his permanent home. The man did not acquire a new domicile in State B because he has yet to be physically present there (although he does intend to make it his permanent home)

Question 38

Forum non conveniens

Answer 38

Even if the court has personal jurisdiction over the defendants, subject matter over the action, and venue is proper, the court has discretion to decline to hear the case in deference to a court in another country if it determines that the other country provides a substantially more efficient, convenient, and fair forum.

Question 39

Federal Court - Service of Process - State rules

Answer 39

A federal court may follow the state rules for service of process. In federal court, service by posting the summons and complaint on the defendant’s property and e-mailing a copy of the summons and complaint to the defendant are not authorized methods of service. However, note that such methods would be permissible if allowed by state law.

Question 40

Statute of limitations - Federal question cases

Answer 40

In a federal question case, the action is deemed commenced for statute of limitations purposes when the complaint is filed with the court.

Question 41

Appeals - Immediate appeal requirements

Answer 41

Review under the Interlocutory Appeals Act is discretionary with the court and may be available when:

(i) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an appeal would materially advance the conclusion of the case, and
(ii) at least two appellate court judges agree to hear the appeal.

Question 42

What interlocutory orders are subject to immediate appeal?

Answer 42

Interlocutory (i.e., nonfinal) orders that may be immediately appealed include:

(i) an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction),
(ii) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships,
(iii) decrees in admiralty cases that find liability but leave damages to be assessed later,
(iv) a patent infringement order where only an accounting is wanting, and
v) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.

Question 43

Appeal - deadline for filing

Answer 43

Under Rules 3 and 4 of the Federal Rules of Appellate Procedure, a party has 30 days from the entry of judgment to file a notice of appeal with the district court. The filing period is extended to 60 days when the United States is a party to the action.

Question 44

Appeal - Multiple parties or claims

Answer 44

When an action involves multiple claims or parties, and the court enters a judgment as to fewer than all the claims or all the parties, it is deemed a final, appealable judgment only to the extent the court makes an express determination that there is no just reason for delay.

Question 45

Appeal - Summary judgment

Answer 45

When a court grants summary judgment on some but not all of the claims in an action, the court’s order is not final and thus not appealable unless the court expressly determines that there is no just reason to delay entry of judgment.

Unless the trial judge makes that express determination, its order determining the merits of fewer than all of the claims is not a final judgment and is not appealable.

Question 46

Appeals - Court’s Standard of review

Answer 46

In order to reserve its right to appeal an error in an instruction given or, as is the case here, a failure to give an instruction, a party must object on the record before the instructions are given. If adequately preserved, the instructions are reviewed using an abuse of discretion standard. However, if the objection is not made (and therefore not preserved for full appellate review), then the court’s review is limited to considering whether there was a plain error in the instruction that affected substantial rights.

Question 47

Appeal - Standard of review - De novo / Abuse of Discretion

Answer 47

(i) Issues of law: When an appellate court reviews a trial court’s ruling on a post-trial motion for judgment as a matter of law (including a renewed one), it employs a de novo standard. It does so because the issue is one of law.

(ii) Procedural issues (i.e. new trial): In contrast, when an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard (i.e. abuse of discretion), reversing the trial court’s denial only when there is a clear showing of an abuse of discretion.

Question 48

Motion to relief - requirements

Answer 48

On motion and just terms, the court may relieve a party from a final judgment or order on the following grounds:

(i) mistake, inadvertence, surprise, or excusable neglect;
* *(ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial;**
(iii) fraud, misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void;
(v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or
(vi) any other reason justifying relief from the operation of the judgment.

For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year from the judgment; for the other grounds, the motion must be made within a reasonable time.

Question 49

Removal - requirements/timing

Answer 49

If no federal question is involved and diversity does not exist, removal will be permitted if:

(i) the nondiverse parties are thereafter dismissed from the action,
(ii) the requirements for diversity jurisdiction are then present, and
(iii) not more than one year has passed since the case was commenced in state court.
* This rule is subject to certain limitations. Removal will not be permitted in all cases; i.e., subject matter jurisdiction is required for removal.*

Question 50

Removal and Venue

Answer 50

In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state.

This is because venue for an action removed under section 1441(a) lies in the federal district court “embracing the place where such [state] action is pending.” Hence, it is not correct to state that venue and removal have no correlation.

Question 51

Who can remove a case?

Answer 51

Only the defendant can exercise the right of removal.

Question 52

Removal - State Court / SMJ

Answer 52

By statute, the state court need not have had subject matter jurisdiction over the case. A federal court may decide a claim in a removed civil action even if the state court had no subject matter jurisdiction.

Question 53

Removal - Time restrictions on a diversity case

Answer 53

There are essentially two time restrictions on removal of a diversity case to federal court:

(1) a case based on diversity must be removed within 30 days of the defendant’s receipt of a copy of the paper (order, motion, etc.) that makes the case removable; but
(2) in no event may the case be removed more than one year after it was commenced in state court.

Question 54

May the PLAINTIFF remove a case?

Answer 54

A plaintiff may not remove on the basis of a counterclaim against him that could have been brought in federal court. Additionally, only defendants may remove a case to federal court.

Removal by a plaintiff is improper even if the defendant joins in removal.

Question 55

Removal - From Federal to State Court, is it possible?

Answer 55

Removal to state court is not available for cases that are properly filed in federal court and that are within the federal court’s subject matter jurisdiction.

CASES PROPERLY FILED IN FEDERAL COURTS CANNOT BE REMOVED TO STATE COURTS.

Question 56

Claim Preclusion - What is the effect of Claim Preclusion when the Claimant wins the case?

Answer 56

Although both merger and bar are used to indicate that claim preclusion (res judicata) is in effect, where the claimant won the earlier lawsuit, the claim is said to be merged into the prior judgment.

Where the defendant won the earlier lawsuit, the claim is said to be barred by the prior judgment.

Question 59

Issue preclusion - Nonparty

When a nonparty may use issue preclusion?

Answer 59

Under the traditional mutuality rule, only someone who was a party in the previous case can use issue preclusion. However, this rule has been modified to allow nonparties to use issue preclusion in certain circumstances. When a nonparty wants to use a previous judgment offensively, the court must consider whether it would be fair and equitable to allow the nonparty to do so.