Civil Procedure

Question 1

Rule 24 Intervention as of right

Answer 1

A person must be permitted to intervene if three conditions are met:

1. The movant claims an interest relating to the property or transaction that is the subject of the action,
2. The movant is so situated that disposition of the action may as a practical matter impar or impeded the movants ability to protect its interest, and
3. Existing parties do not adequately represent the movants interest.

Question 2

Temporary Restraining Order (TRO)

Answer 2

A TRO can be issued without notice to the adverse party, but only in limited circumstances and only for a limited time. To secure a TRO without notice, the P would need to submit an affidavit containing specific facts that demonstrate a risk of “immediate and irreparable injury”.

In deciding whether to grant a TRO the courts will also consider the moving party likelihood of success on the merits, the balance of hardships, and the public interest. 14 days, bond is required.

Question 3

Preliminary injections

Answer 3

are injuctions that seek to protect the plaintiff from irreparable injury and to preserve the court’s power to render a meaningful decision after a trial on the merits.

Granted only upon notice to the adverse party, and only if the movant gives security in an amount the the court considered proper to pay costs and damages sustained by any party found to have been wrongfully enjoined or restrained.

The court typically considers four factors:

1. the significance of the threat of irreparable harm to the P if the injuction is not granted,
2. the balance between this harm and the injury that granting the injunction would inflict on the defendant,
3. the probability that the plaintiff will succeed on the merits, and
4. the public interest

Question 4

Should the Federal court give preclusive effect to a State court judgment?

Answer 4

Yes. Federal Staute 28 USC S 1738, Reffes to the effect records and judicial proceedings of any court of any State of the United States. The statute says that:
such records and judicial proceedings shall have the same full faith and credit in every court within the United States as they have by law or usage in the courts of such state from which they are taken.

Section 1738 is to require that once a state court issues a judgment, any federal district court is required to give that judgement the same effect-including the same preclusive effect as the judgment would have in the state courts of the rendering state.

Question 5

Rule 60(b)(3) authorizes the court to relieve a party from a final judgement for the following reasons:

Answer 5

(3) fraud, misrepresentation, or misconduct by an opposing party

Question 6

As applied to allegations of fraud, the movant must show:

Answer 6

“by clear and convincing evidence,” that the opposing party engaged in a fraud that prevented the movant from fully and fairly presenting its case.

Question 7

Permissive intervention

Answer 7

(1) on a timely motion, the court may permit anyone to invervene who: . . . (B) has a claim or defense that shares with the main action a common question of law or fact

Question 8

Can a forum state constitutionally exercise personal jurisdiction of an out of sate corporation?

Answer 8

First, yo have to decide whether (1) specific jurisdiction will suffice for the suit in question; or (2) instead, “general” jurisdiction will be needed.
See next card

Question 9

Specific Jx

Answer 9

refers to the jurisdiction needed to hear a suit that arises out of the defendant corporations activities in the forum state.

Question 10

General jx

Answer 10

referes to the jurisdiction needed to hear a suit that does not arise out of the defendant corporations in forum state activities; the ties btwn the out of state corporation and the forum sate must be much greater for general jx than for specific jx.

The out of state corporation must have continuous and systematic general business contacts with the forum state. (when the corp is either incorporated in the forum sate or has its principal place of business int he forum state.

Question 11

Motion to strike

Answer 11

the court may strike from a pleading an insuffiecnt defense or any redundant, immaterial, impertinent, or scandalous matter.

Question 12

excpetions to the final judgment rule

Answer 12

1. appeals for injunctions
2. A collateral Order: can be immediately appealed if: (1) the matter is separate from (“collateral to”) the merits of the claim being pursued; (2) the matter is too important to be denied appellate review entirely; and (3) deferring appeal until entry of a final judgement in the whole case would prevent the eventual review from being “effective” in the circumstances.

Question 13

Rule 11 sanctions

Answer 13

11(a) requires the lawyer of record to sign the pleading
11(b) specifies that when a lawyer signs or files the pleading, that lawyers “certifies that to the best of the lawyers knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,” certain things are true.

One of the portions that the lawyer is deemed to certify is that the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for future investigation or discovery.

11b further says that the claims, defenses, and other legal contentions are warranted by existing law or by. a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law.

Question 14

Relation Back

Answer 14

an amendment to a pleading relates back to the date of the original pleading when:

A) the law that provides the applicable state of limitations allows relation back, or
B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out–or attempted to be se out–in the original pleading.

Question 15

Can multiple plaintiffs aggregate their claims to meet the jurisdictional amout?

Answer 15

No. Aggregation is permitted only:

(1) in cases in which a single p seeks to aggregate two or more of his own claims against a singe D and
(2) in cases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest.

Question 16

Third party defendants

Answer 16

a TP defendant may assert against the plaintiff any defenses that the third-party plaintiff has to the plaintiffs claim

Question 17

Third party plaintiff

Answer 17

a defending party may, as third party plaintiff, serve a summons and complaint on a non party who is or may be liable to it for all or part of the claim against the trhid party plaintiff. It applies where and only where the trhid party plaintiff is alleging that the third party defendant is or may be liable to the trhid party plaintiff for all or part of the claim against that third party plaintiff.

Question 18

Service on a Corporation

Answer 18

FRCP 4(h), service upon a corporation may be effected within a United States judicial district by “following state law for serving a summons in an action brought in courts of general jurisdiction in the sate where the district court is located of where service is made, or by delivering a copy of the summons and of the complaint to an officer, managing or general agent.

Rule 4 of FRPC which governs service of process, regulates procedural matters and thus is controlling law in federal diversity suits, notwithstanding any conflict with state service law.

Question 19

Defendant bringing a nonparty into an action FRCP 14(a)

Third-Party Complaint

Answer 19

FRCP authorizes a defendant to bring a nonparty into an action only in very limited circumstances. If the defendant claims that the nonparty “is or may be liable to the defendant for all or part of the claim against it,” then the D may bring a third party complaint against the nonparty and the nonparty may be joined as a third-party defendant.

Question 20

Request for waiver of service

Answer 20

a P can send by first class mail or other reliable means notice to a corporate (or for that matter an individual) defendant of the commencement of the suit and request that the defendant “waiver service of a summons.”Then, if the defendant complies with the request by signing and returning the waiver form to the P, the P can file the waive w the court and avid having to make service.

When the P files a waiver,, a proof of service is not required and there rules apply as if a summons and complaint had been served at the time of filing the waiver.

But the request for waiver process does not obviate the need for actual service unless and until the plaintiff received the signed waiver and files it with the court.

Question 21

FRCP 15 a party may amend his pleading once as a matter of right in either of these two situations:

Answer 21

1. within 21 days of when A served his original pleading, or
2. if A’s pealing was one that required a responsive pleading by B, within 21 days of when B either (i) served that responsive pleading or (ii) made a motion under Rule 12(b), (e), or (f) (with the 21 days starting on whoever of two events mentioned in (i) and (ii) happened earlier)

Question 22

Partial summary judgments are normally:

Answer 22

not final unless the judgment falls within an exception that would make the judgment final.

Federal courts of appeal have jurisdiction of appeal from all “final decisions” of the district courts of the Unites States.

Question 23

Full faith and credit principles do not require the court to

Answer 23

apply “procedural” rules of another court that has rendered a judgment.

Question 24

Even if materials are prepared in anticipation of litigation (work product immunity)may be discovered if :

Answer 24

(i) the materials otherwise meet the requirements for discoverability set out in Rule 26 (ie., they are “nonprovileged matter that is relevant to any party claim or defense and proportional to the needs of the case”) and
(ii) the party seeking discovery “shows that It has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalence by other means.”

Question 25

Out-of-state individual or business appoints an in-state official as agent for service of process meets due process requirements provided that

Answer 25

the state official is required to notify the defendant that the action has commenced. Furthermore, service on an instate agent followed by mail notice meets due process requirements.

Question 26

Supplemental jx

Answer 26

when a federal court has original jurisdiction over a claim, the ocourt has supplemental jx over "all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III. Shall include claims that involve the joinder or intervention of additional parties. Claims form part of the same case or controversy under Article III if they "derive from a common nucleus of operative fact." 1. the district court has power to exercise supplemental jx and 2. there is no reason for the court to use its discretion to decline to exercise that power. However, the court may decline to exercise that supplemental jx if any of the special factors listed in section 1367 is present: if it involves a novel or complex state law issue; the state law claim "substantially predominates" over the federal claim; the federal claim has been dismissed; or there are some "exceptional circumstances" that present a compelling reason for dealing jx.

Question 27

Claim preclusion evolves two doctrines: merger and bar

Answer 27

Merger- if the p wins the firs suit "merger" prevents the p from bringing a second suit on the claim against the same defendant Bar- if the p loses the first Sui "bar" prevents her from bringing a second suit on the claim against the same defendant.

Question 28

Claim preclusion. If two persons have a relationship such that one of them is vicariously responsible for the conduct of another, and an action is brought by the injured person against one of them the judgment in the action has the following preclusive effects against the injured person in a subsequent action against the other:

Answer 28

1. A judgment against the injured person that bars him from reasserting his claim against the defendant in the first action extinguishes any claim he has against the other person responsible for the conduct unless: a. the claim asserted in the second action is based upon grounds that could not have been asserted agsintn the d in the first action; or b. the judgment in the first action was based on a defense that was personal to the defendant in the first action.

Question 29

Issue preclusion (aka collateral estoppel)

Answer 29

applies to prevent relitigation of an issue only when the issue whether of fact or law is actually litigated and determined and the determination is essential to the judgement.

Question 30

When a federal court hears a claim based solely on sate law (diversity) the doctrine of Erie Railroad applies

Answer 30

it requires the federal court to apply any state statutes, rules, or judicial decisions that are mostly substantive, but not state-law principles that are essentially procedural. However, bf you can even know whether Erie doctrine applies to a particular set of facts, you have to first determine whether there is a valid federal rule or state governing the matter in question, which if applied would be inconsistent with the state principle; if there is, the federal rule or statute must be applied, and Erie never even gets triggered. You must first have to know that there doesn't exist any federal rule or statute conflicts with the state rule in question, and to do that you turn theoretically have to know "everything" about which federal rules and statutes exist.

Question 31

If there is no federal statue or rule that conflicts with state law in a diversity case that would be inconsistent with having the federal court honor the state notice of claim requirement. Therefore, this is indeed a situation in which classic Erie analysis is required.

Answer 31

The question then becomes, does the state-law requirement of notice-of-claim embody a sufficiently strong state substantive interest that Erie principles require the federal court to defer to state law by applying that requirement? The extent to which the state rule is outcome-determinative is an important part of the analysis. Thats bc where a federal court is exercising jurisdiction solely on diversity, the outcome of the litigation in the federal court should e substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State Court. Otherwise the federal courts will be encouraging "forum shopping." in which one party gets the change to choose between have the case heard in a state court or federal court located in that same state, based on which one will give them better odds or winning.

Question 32

For the forum state to have PJ over the D for purposes of a suit relating to activities occurring in the forum state, I trust as a general rule be the case that

Answer 32

a. the D had minimum contacts with the forum state, and | b. it would not be fundamentally unfair to require the defendant to defend suit in the forum state.

Question 33

Federal discovery rules recognize only one situation in which. apaerosn may be permitted to conduct discovery bf any suit involving that person has been filed:

Answer 33

A court order to "perpetuate testimony" the person must file a "verified petition" showing among other things: A. that the P expects to be a party to a federal court action but cannot presently bring it or cause it be brought; B. the subject matter of the expected action and the petitions's interest; C. the facts that the petition wants to establish by the proposed testimony and the reasons to perpetuate it.=, E. the name, address, and expected substance of the testimony of each deponent. when a delay in discover is likely to result in a loss of evidence. `

Question 34

Interpleader 1. Rule 22 Interpleader and 2. Statutory interpleader

Answer 34

is a procedure that allows a party-called the stakeholder-to join in one lawsuit all claimants to whom he is or might be liable. although the porcudres serve the same purpose-to enable a party to avoid the risk of multiple and conflicting liability-statutory and rule interpleader differ in their procedural requirements. Rule 22 interpleader, by way of rule, does not have an explicit deposit or bond requirement. Statutory interpleader, requires that the P deposit the stake into the registry of the court or furnish a bond payable to the clerk of the court in such amount and with surety as the court or judge may deem property.

Question 35

Judgment as a matter of law (JML) in a jury trial

Answer 35

if a party has been fully head on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: B. grant a motion for judgement as a matter of law against the party on a claim..., that, under the controlling law, can be maintained... only without favorable finding on that issue.

Question 36

Final judgment Rule exceptions

Answer 36

interlocutory appeasements - principally in cases involving injunctions

Question 37

Summary Judgment response

Answer 37

when facts are unavailable to the nonmoving: if a nonmoving shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may (2) allow time to obtain affidavits of declarations or to take discovery.

Question 38

Venue transfer

Answer 38

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or diviosn where it might have been brought or to any district or division to which all parties have consented

Question 39

The 7th Amendment provides that

Answer 39

in suits at common law the right by trial by jury shall be preserved. The court must hold a jury trial on legal claims before holding a nonjury trial on equitable claims

Question 40

Supplemental jx

Answer 40

applies to claims by third party defendants, since they are not plaintiffs. "in any civil action of which the district courts have original jurisdiction, the district court shall have supplemental jx over all other claims that are so related to claims in the action within such original jx that they form part of the same case or controversy under Article III. Such supplemental jx shall include claims that involve the joinder or intervention of additional parties. Claims by plaintiffs need to meet subject matter jx. It is generally understood that claims that are part of the same case or controversy if they arise from a common nucleus of operative facts.

Question 41

Default judgement for a sum not certain

Answer 41

or can't by computation be made, its up to the court (not the clerk) to enter judgement, which may be done only by following a hearing that in some scenarios requires advance written notice to defendant at least 7 days before the hearing. D party must have appeared initially, personally or by representative.

Question 42

What is the standard for defeating a motion for summary judgment?

Answer 42

whether the evidence revealed a genuine dispute of material fact supporting the claim

Question 43

What standard can support granting a new trial?

Answer 43

the court's belief of whether the verdict is against the weight of the evidence. Under Rule 50, the court must let the jury's verdict stand if there is substantial evidence-more than a scintilla- supporting the verdict, assuming that the jury resolved all disputed issues in the widow's favor.

Question 44

A second voluntary dismissal is:

Answer 44

an adjudication on the merits. Therefore, the P cannot refile the same claim(s). This is called the "two dismissal rule" and it allows for the first voluntary dismissal to be made without prejudice if the defendant doesn't assert an answer or a motion for summary judgment. However, a second voluntary dismissal is done with prejudice and the plaintiff will not be permitted to refile.

Question 45

A jury demand is timely if it is made within:

Answer 45

14 days after the last pleading directed to the issue for which a jury is sought. Ordinarily, the last pleading directed to a plaintiff's claim is the answer; therefore, the deadline for a plaintiff to make a jury demand is usually 14 days after the defendant serves the answer.

Question 46

A party may amend its pleadings as a matter of course within:

Answer 46

21 days after serving it.

Question 47

Process of removing a case from state to Federal court

Answer 47

Procedurally, the first step for removing an action from state to federal court is for the defendant to file a notice of removal in the federal district court for the district and division within which the state action is pending. The notice must be filed within 30 days of the defendant’s “receipt . . . , through service or otherwise, of a copy of the initial pleading . . . , or within 30 days after the service of summons . . . if such initial pleading has then been filed and is not required to be served . . . , whichever period is shorter.” The notice of removal must be signed and must include a statement of the basis for federal jurisdiction. A copy of the materials from the state court proceeding must also be filed. After filing the notice of removal, the defendant must serve notice of the filing on all adverse parties and file a copy of the notice of removal with the state court. Removal is “automatic.” Once the state court has a copy of the notice of removal, the case is removed and the state court can take no further action in the case.

Question 48

(Joinder of parties) Joinder of two or more plaintiffs

Answer 48

provides that two or more plaintiffs may join their claims in a single lawsuit if the plaintiffs “assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence or series of transactions or occurrences; and . . . any question of law or fact common to all plaintiffs [being joined] will arise in the action.”

Question 49

Supplemental jurisdiction

Answer 49

When a federal court has original jurisdiction over a claim in an action, § 1367(a) provides that the court “shall have supplemental jurisdiction over all other claims that are so related [to the main claim] that they form part of the same case or controversy under Article III of the United States Constitution.”

Question 50

best way to raise the argument that the court lack personal jurisdiction over the defendant

Answer 50

Rule 12(b)(2) specifically authorizes the defendant to raise the lack of personal jurisdiction by pretrial motion, which would be the quickest and least expensive means to obtain a ruling on the issue.

Question 51

Rule 12 (f) MTN to strike

Answer 51

The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

Question 52

Final judgement rule

Answer 52

Appellate courts have jurisdiction only over the final decisions of the district courts. See 28 U.S.C. § 1291. A denial of summary judgment is not a final decision, because the action will proceed in the district court. Unless denial is also an appealable interlocutory decision under 28 U.S.C. § 1292(a), or the district court certified that the matter warrants immediate appeal under 28 U.S.C. § 1292(b).

Question 53

When will a court releive a party from a final judgment?

Answer 53

a court may relieve a party from a final judgment on the grounds of fraud, misrepresentation, or misconduct by an opposing party.

Question 54

Rule 26(d) provides that parties may not discovery until

Answer 54

as a general rule, the parties may not serve discovery until after a Rule 26(f) discovery planning conference

Question 55

Rule 33 permits a party to serve how many interrogatories?

Answer 55

up to 25 interrogatories without leave of court | or the consent or stipulation of the adverse party.

Question 56

What would be a nonmovants best response to a motion for summary judgment?

Answer 56

``` Rule 56(d) allows the nonmovant on a motion for summary judgment to submit an affidavit or declaration stating that more time is needed to take discovery before responding. The affidavit or declaration must specify what that discovery will be and how it will help in resisting the motion. If the court agrees, it can deny the motion without prejudice or defer ruling on the motion until the nonmovant has had a fair chance to take the discovery specified. ```

Question 57

How do defeat a summary judgment motion?

Answer 57

the nonmovant shows by affidavit or declaration that he cannot present facts essential to justify his opposition to the summary judgment motion, Rule 56(d) authorizes him to ask the court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery

Question 58

To support general jurisdiction in the forum state

Answer 58

the party must have continuous, systematic, and substantial contacts with the forum state sufficient to consider the forum state its “home.”

Question 59

An appellate court cannot set aside a trial judge's findings of fact unless:

Answer 59

Under Rule 52(a)(6), an appellate court cannot set aside a trial judge’s findings of fact unless the findings are clearly erroneous, giving due regard to the trial judge’s opportunity to determine witness credibility.

Question 60

Domicile (for diversity purposes)

Answer 60

The citizenship of individuals is determined by domicile at the time of the lawsuit. Domicile continues until changed. A person can change her domicile by (1) taking up residence in a new jurisdiction with (2) the intent to remain there indefinitely.

Question 61

Principal place of business

Answer 61

the place where the corporation's high-level officers, direct, control, and coordinate the corporations activities.

Question 62

A federal court can exercise personal jurisdiction over a defendant if the defendant: (Specific jurisdiction)

Answer 62

has sufficient "minimum contacts" with the forum state "such that the maintenance of the suit in the forum state does not offend traditional notions of fair play and substantial justice." Two critical questions are: whether the quality and nature of the defendant's contracts with the jurisdiction are such that it can reasonably anticipate being haled into court there and whether those contacts are such that it is reasonable to expect the defendant to defend the action in the forum state.

Question 63

The Supreme Court recognized a distinction between "general jurisdiction" and "specific jurisdiction"

Answer 63

general jx, permits a court to exercise jx over any claim against a defendant if the defendant has extensive connections with the forum. Specific jx, which permits a forum to hear a case only if the suit arises out of or relates to the defendant's forum contacts.

Question 64

For specific jx to be proper

Answer 64

there must be "an affiliation between the forum and the underlying controversy" "principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation."

Question 65

General jurisdiction

Answer 65

The proper test is whether the business's "affiliations with the State are so 'continuous and systematic' as to render it essentially at home in the forum state." The paradigmatic affiliations are place of incorporation and principal place of business, each of which has "the virtue of being unique . . . as well as easily ascertainable."

Question 66

A general denial

Answer 66

is technically allowed under the Federal Rules of Civil Procedure, but only if the party "intends in good faith to deny all the allegations of a [complaint] including the jurisdictional grounds . . . "

Question 67

A defendant's answer must

Answer 67

respond to legal conclusions stated in the complaint (e.g., an assertion that venue is proper) as well as to factual allegations. Because "there is almost always something in the complaint that, in good faith, should be admitted." a general denial is likely to be improper in most cases.

Question 68

When is a lawyer not subject to sanctions

Answer 68

a lawyer who files an inaccurate pleading is not subject to sanctions if the lawyer acted in good faith after making a pre-filing "inquiry" that was" reasonable in the circumstances." Reasonableness is judged as of the time the pleading was submitted, and depends on "such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information, or other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar."

Question 69

Before a party may seek sanctions under Rule 11

Answer 69

the party must serve on the opposing party a motion that describes the specific conduct that allegedly violated the rule. The opposing party must be given 21 days to withdraw or correct the challenged pleading. If the 21 day period passes, and the pleading is not corrected, the motion for sanctions may be filed with the court.

Question 70

The court has discretion western to impose any sanctions under Rule 11

Answer 70

"whether a violation has occurred and what sanctions, if any, to impose for a violation are matters committed to the discretion of the trial court. . . " Sanctions should be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. Sanctions ca be monetary or non monetary.

Question 71

If sanctions are monetary

Answer 71

they can include "an order to pay penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.;

Question 72

Examples of non monetary sanctions

Answer 72

would be striking the offending paper; issuing an admonition, reprimand, or censure; requiring participation in seminars or other educational programs,. . . or referring the matter to disciplinary authorities.

Question 73

A non-exhaustive list of factors the court may consider in deciding what sanctions, if any, should be imposed for a violation includes

Answer 73

[w]hether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended to injure; what effect it had on the litigation process in time or expense; whether the responsible person is trained in the law; what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; what amount is needed to deter similar activity by other litigants.

Question 74

Federal Rules of Civil Procedure 4(k)(1)(A) provides that a federal court can take personal jurisdiction over a defendant who

Answer 74

is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.

Question 75

Transient jurisdictoin

Answer 75

In Burnham v. Superior Court of California, a unanimous Supreme Court held that a court's exercise of such "transient jurisdiction," i.e., jurisdiction based on physical presence alone, is generally consistent with due process. A plurality concluded that transient jurisdiction is constitutional simply :because it is one of the continuing traditions of our legal system that define the due process standard.

Question 76

Moreover by voluntarily traveling and voluntary presence in the forum state

Answer 76

the defendant avails himself of various benefits provided by State C, such as the benefits of "police, fire, and emergency medical" protections; access to the state's transportation system; and, "fruits of the State's economy."

Question 77

Under 28 USC s 1331 district courts may exercise subject-matter jx over:

Answer 77

all civil actions arising under the Constitution, laws, or treaties of the United States" As a general rule, causes of action that are created by federal law qualify for federal-question jx while those created by state law do not.

Question 78

Venue

Answer 78

28 U.S.C. § 1391(b) governs venue in this action. Under § 1391(b), venue is appropriate “in (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, . . . or (3) if there is no district in which an action may otherwise be brought . . . , any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.”

Question 79

Class actions

Answer 79

In 2005, Congress amended the federal diversity-jurisdiction statute, to allow large class actions to be Brough in federal court, even if there is not complete diversity between the defendants and the plaintiffs. A federal district court can exercise diversity jurisdiction over a class action if (i) the matter in controversy exceed the sum or value of $5,000,000 and (ii) any member of a class of plaintiffs is a citizen of a State different from any defendant (i.e., minimal diversity)

Question 80

In Erie Railroad Co. v. Tompkins, the Supreme Court held that

Answer 80

federal courts sitting in diversity must look to state law for the substantive rules of decision governing such cases. However, in a series of subsequent cases, the court made clear that federal law would continue to govern procedural matters in federal court, even if the federal procedure affected the outcome of the litigation. If there is a federal procedural rule that governs an issue, it applies "unless it exceeds statutory authorization or congress's rule making power.

Question 81

To establish standing

Answer 81

a plaintiff must show (1) an injury in fact, (2) fairy traceable to the challenged conduct of the defendant, and (3) likely to be redressed by a favorable judicial decision.

Question 82

The Court emphasized that the "injure in fact" element of the Court's standing test required a showing that the plaintiff suffered

Answer 82

"an invasion of a legally protected interest" that is "concrete" as well as "particularized."

Question 83

The court is Spokeo also said that the actual monetary harm to a plaintiff

Answer 83

isn't required for standing: an "intangible" injury can nonetheless be a "concrete injury." In cases decided since Spokeo, several federal courts have held that an invasion of privacy is, in and of itself, a concrete injury, even when extensive damages cannot be proved.

Question 84

Specific jurisdiction

Answer 84

The due process clause of the Fourteenth Amendment permits states to assert personal jurisdiction over nonresident defendants who have established minimum contacts with the state such that the exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice. So long as the contacts directly related to the causes of action asserted. Under the test for specific jurisdiction, a nonresident defendant is subject to specific jurisdiction when its contacts with the forum state demonstrate purposeful availment of the benefits of the forum state, and the cause of action is related to those contracts. The burden is on the defendant to make a compelling case that the fairness considerations outweigh the existence of minimum contacts.

Question 85

Can a court have specific jurisdiction over a defendant that has only placed a product in the stream of commerce?

Answer 85

In J. McIntryre Machinery, Ltd. v. Nicastro, the Supreme Court rejected the so-called "stream of commerce" theory of personal jurisdiction and held that merely placing a product in the stream of commerce with awareness that it might reach a particular state was not a sufficient basis to exercise jurisdiction over the manufacturer of the product. Unless the defendant 'purposefully avails itself of the privilege of conducting activities within the forum State.

Question 86

"arising under" federal standard, with respect to state law claims, the federal issue is:

Answer 86

(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. the Supreme Court ruled that when a complaint consists solely of state law-created claims, it is not sufficient for federal jurisdiction purposes for the complaint, expressly or implicitly, to assert that the defendant breached a duty.

Question 87

"Center of gravity test"

Answer 87

the courts looks to where the person works, where his family is, that type of thing--and determine the "center of gravity," which will be the persons domicile.

Question 88

Domestic relations cases, the Supreme Court circumscribed this exception by limiting its application to suits involving the issuance of divorce, alimony, or child custody decrees and declaring that the exception does not extend to:

Answer 88

sexual abuse cases consisting only of a tort claim for damages unaccompanied by a request for a decree of divorce, alimony, or child custody.

Question 89

Joinder of parties Rule 20(a) governs permissive joinder of parties, permits

Answer 89

the plaintiff to join multiple defendants whenever two conditions are met: (1) any right to relief is asserted against [the defendants] jointly, severally, or in the alternative, with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences" and (2) any question of law or fact are common to all defendants will arise in the action. Rule 20 is designed to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits. ln determining whether claims against the three defendants arise out of the same transaction or occurrence, courts often employ the logical-relationship test, under which "all logically related events entitling a person to institute a legal action against another generally are regarded as comprising a transaction or occurrence. "in the alternative" language was specifically intended to permit a plaintiff to join multiple defendants when she or he "is entitled to relief from someone, but the plaintiff does not know which of the two or more defendants is liabel under the circumstances set forth in the complaint.

Question 90

Specific jurisdiction

Answer 90

the due process clause of the 14th amendment permits states to assert personal over nonresident defendants who have established minimum contacts with the state such that exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice. When its contacts demonstrate purposeful availment of the benefits of the forum state and/or render it foreseeable that the defendant may be haled into the forum state's courts.

Question 91

Domicile is defined as

Answer 91

the individual's "true, fixed, and permanent home . . . to which he has the intention of returning whenever he is absent therefrom."

Question 92

A final judgement is one that

Answer 92

ends the litigation on the merits and leaves nothing for the court to do but execute the judgement. A decision that adjudicates fewer than all the claims in the action does not end the action as to any of the claims or parties.

Question 93

Under the collateral-order doctrine

Answer 93

an immediate appeal may be taken from an interlocutory order that conclusively determines an important issue in a case if that issue is independent of (collateral to) the merits of the action and if delay in appellate review would effectively preclude the losing party from an opportunity to vindicate its rights on appeal.

Question 94

Mandamus or prohonition

Answer 94

another means of obtaining immediate review of interlocutory orders is to seek an extraordinary writ (mandamus or prohibition) from the appellate court reversing the trial court's ruling. However, an appellate court is highly unlikely to grant an extraordinary writ in most cases. Mandamus and prohibition are available to allow appellate courts "to confine trial judges to the lawful exercise of their jurisdiction or to compel them to act if they have abdicated their jurisdictional obligations.

Question 95

Pendent appellate jurisdiction

Answer 95

the argument is that the final-judgement rule "is designed to prevent parties from interrupting litigation by pursing piecemeal appeals. Once litigation has already been interrupted by an authorized pretrial appeal, . . . there is no cause to resist the economy that pendent appellate jurisdiction promotes," and a party should be able immediately to appeal any decisions int he case that can conveniently be reviewed along with the appellate order.

Question 96

Cross claims

Answer 96

Rule 13(g) provides that a defendant's answer may state as a cross-claim against a co-defendant any claim that "arises out of the transaction or occurrence that is the subject matter of the original action" between the plaintiff and the defendants. The policy underlying 13(g) is efficiency; multiple lawsuits are avoided if defendants bring related cross-claims in the context of the plaintiff's suit.

Question 97

For purposes of Rule 13 federal courts look at a number of factors. (whether two different claims arise out of the same "transaction or occurrence")

Answer 97

(1) whether the issues of fact and law in the plaintiff's claim and the defendant's cross-claim are essentially the same, (2) whether the same evidence would support or refute the plaintiff's claim and the defendnt's cross claim, (3) whether there is a logical relationship between the plaintiff's claim and the defendant's cross claim, and (4) whether res judicata would bar a subsequent suit on the cross-claim.

Question 98

A defendant may remove a civil action from state to federal court

Answer 98

if the action is a type over "which the district courts of the United States have original jurisdiction.