CivPro

Question 1

Specific jxn fairness factors

Answer 1

For specific only: fairness factors: 1) Consider interests of P in getting relief; 2) forum state in providing redress; and 3) D in not being gravely inconvenienced

Question 2

When Fed Ct may not exercise supp jxn

Answer 2

1) if fed claim dismissed before trial (not on merits)
2) raise novel state issue
3) or state law issues predominate

Question 3

When does Erie apply

Answer 3

When court had diversity jxn or claims attached under supp jxn

Question 4

What is substantive law under Erie

Answer 4

Law that determines outcomes:
SOL, choice of law, elements of claim or defense, remittitur, additur, notice of claim, issue preclusion

Question 5

For case based solely on diversity, when is removal allowed?

Answer 5

Allowed only if no D is a citizen of forum state where suit filed

Question 6

P’s choice of forum (venue) is proper in any federal district where…

Answer 6

Any D resides provided that all Ds are located in the same state OR where substantial part of claim arose OR substantial part of property that is the subject of the action is.
If above unavailable, any district where any D is subject to PJ

Consent or waiver by failing to object also creates proper venue

Question 7

Can only transfer to another district…

Answer 7

(1) Where case could have been brought in the first place (SMJ exists, PJ exists over Ds, venue is proper)
(2) or if all parties agree

Question 8

What is forum non conveniens?

Answer 8

D may move to dismiss or stay under FNC (rather than transfer venue) if original venue is inconvenient + adequate alternative forum with proper jxn exists

Inconvenience Factors: Moving party shows 1) convenience of parties and witnesses; 2) ease and access to evidence; 3) calendar congestion etc.

Question 9

Venue: transfer according to Forum selection clause unless

Answer 9

Extraordinary circumstances re: 1) what law applies; 2) what community should be burdened in jury desire; 3) keep in local court

Question 10

What must be in complaint?

Answer 10

Basis of SMJ, claims, relief

Question 11

What requires heightened pleading

Answer 11

Fraud, mistake, special damages, or conditions precedent not being satisfied

Question 12

Compulsory counterclaim

Answer 12

If D’s claim arise from STO as P, it must be pleaded or barred

Question 13

Permissive counterclaim

Answer 13

Any other claim D has may be asserted as long as it has federal jxn

Question 14

Crossclaim

Answer 14

D’s answer may include a crossclaim against a coparty if claim arises out of STO as II’s claim

Question 15

Relation back

Answer 15

Amended pleading with new claims or defenses relates back to original pleading date, only if new claim/defense arose from STO as original

Question 16

New party can be added to complaint even though SOL has run to him only if…

Answer 16

1) The claim arose from same STO alleged in original claim
2) New pt had notice of the claim w/in time limit for service (90 days from filing);
3) New pt knew or should have known w/in 90 of filing that, but for a mistake concerning the identity of the proper party, he would have been included in the original action

Question 17

Waivable affirmative defenses

Answer 17

Contributory negligence, claim preclusion, SOF, fraud, SOL, self-defense

Question 18

Waivable defenses

Answer 18

3 Ps and V
Lack of PJ
Insufficient Process
Insufficient Service of Process
Improper Venue

Question 19

If evidentiary material presented in 12b6 failure to state a claim MTD

Answer 19

Treat as motion for summary judgment

Question 20

Compulsory joinder

Answer 20

An indispensable party who is subject to service of process and whose joinder will not deprive the court of SMJ must be joined as a party if 1) court cannot grant complete relief to existing parties without that party; 2) or his interests may be impaired if the case proceeds w/o joining him

Question 21

Compulsory joinder for not subject to service of process or will deprive SMJ

Answer 21

Court will consider whether to proceed in equity
1) Is there an alternative forum available
2) Likelihood of harm to absentee
3) Can court shape relief to avoid harm to absentee

Question 22

Intervention as a right

Answer 22

Indispensable party must be joined if either:
a) absentee’s interest will be harmed if not joined and no existing party will adequately represent that interest, or
b) Absentee has an unconditional statutory right

Question 23

Permissive intervention

Answer 23

Allowed in court’s discretion if either:
a) absentee has a claim or defense that shares a common question of law with the underlying action, or
b) absentee has a conditional statutory right, or
c) absentee is a officer or agency and an existing claim or defense relates to the officer/agency or a statute, regulations, etc.

Question 24

Jurisdiction for intervention

Answer 24

In diversity cases, intervener must establish independent SMJ
Supplemental jxn will not cover diversity intervention

Question 25

Permissive joinder

Answer 25

Parties may join plaintiffs or defendants only if 1) a claim is made by each P and against each D arising out out of STO; and 2) there is a question of fact or law common to all parties

Question 26

Class actions are proper if CANT P/ER/CQ

Answer 26

Commonality: Q of law or fact in common to class Adequacy of representation: Class rep will fairly and adequately represent class (interests align) Numerosity: too many class members for practicable joinder Typicality: Representative's claims/defenses typical of those of the class PLUS ONE i. Prejudice: Separate actions would create a risk of inconsistent results or impair interests of unnamed parties ii. Equitable relief: Injunctive or declaratory relief is appropriate for the class as a whole iii. Common q predominates: Common Q of law or fact predominate over individual issues, and a class action is superior to alternative methods of adjudication. This requires notice to all members and option to opt out. iv. Class actions require PJ over each of the D names in the action. No requirement for Ps

Question 27

Class Actions Fair Act: SMJ is established

Answer 27

i. if minimum diversity (any named class member diverse from any D) ii. +aggregate AIC > $5M+ iii. 100+members in proposed class EXCEPTIONS: No federal court jxn under CAFA if primary Ds are states, state officials, govt' entities OR action relates to affairs of a corporation and is based on laws of state of incorporation OR action solely relates to federal securities laws.

Question 28

Claim preclusion/res judicata

Answer 28

prevents re-litigation of any part of a cause of action: 1. between same parties and privies 2. same claim (STO) 3. FJ on merits 4. Has been litigated or could have been raised

Question 29

Issue preclusion/CE

Answer 29

prevents re-litigation of and asserts the effect of a particular issue: 1. asserted against same party or in privity 2. Same issue 3. Issue essential to J 4. FJ on merits 5. Actually litigated

Question 30

Offensive IP

Answer 30

New P not party to first suit can use IP based on fairness factors. Fair to allow if: 1. P had no opportunity to join first suit 2. D had strong incentive to litigate first suit 3. No inconsistent findings 4. Procedural opportunities not available to P in first suit

Question 31

Final judgment adjudicated on merits unless based on

Answer 31

1) lack of jxn 2) improper venue 3) failure to join with prejudice

Question 32

Dismissal w prejudice unless

Answer 32

1) lack of jxn 2) improper venue 3) failure to join

Question 33

When is summary judgment granted?

Answer 33

If from pleadings, affidavits, and discovery materials on file viewed in light most favorable to NMP, the moving party shows that there is no genuine dispute of material fact

Question 34

Basis for motion for relief from judgment

Answer 34

Mistake, fraud, misconduct, newly discovered evidence

Question 35

Basis for motion to reconsider

Answer 35

New evidence, change in law, clear error of law or fact, or to prevent injustice

Question 36

Basis for motion for new trial

Answer 36

Most of other things except mistake, fraud, misconduct

Question 37

Factors for preliminary injunction

Answer 37

Irreparable injury, likelihood to win, balance of hardships, public interest