CivPro Fa24 Final

Question 1

What is venue?

Answer 1

Proper court within a court system. The purpose is ensure the court is conveniently located and has a connection to the lawsuit or parties.

Question 2

28 USC 1391

Answer 2

Applies only to cases filed in federal court (if removed from state ct, removed to fed ct embracing state ct).
(b) A civil action may be brought:
(1) in a judicial district in which any D resides, if all Ds residents of the state in which district is located
(2) a judicial district in which a substantial part of events or omissions giving rise to claim occurred, or where substantial part of property that is subject of action is
(3) if no district under 1 and 2, any district where D is subject to cts personal jx
(c) residency for venue
(1) individuals (natural citizens and lawful perm. residents) reside in districts where they are domiciled
(2) an entity resides if D–> in any judicial district in which D is subject to cts pjx; if P–> only in district it has PPB
(d) residency of corps in states with multiple districts–> residents of any district in which its contacts would be sufficient to subject it to pjx if district was separate state; or district where most significant contacts

Question 3

Consent/waiver

Answer 3

parties may consent to venue (and pjx) pre-litigation or during litigation, usually by FSC

Question 4

Specialized venue statutes

Answer 4

details venue in certain types of cases (copyright and patent, against fed gov’t, employment discrimination)

Question 5

28 USC 1406

Answer 5

Case filed in a district court that is an improper venue shall be dismissed, or in the interest of justice, transferred to any proper district in which it could have been brought

if improper venue, cts usually transfer if they can

Question 6

28 USC 1404

Answer 6

If a case is filed in an otherwise proper venue, for the convenience of parties and witness, and in the interest of justice, ct may transfer a case to any other district where it might have been brought or where all parties have consented

Question 7

Does other place just make more sense? Moving party–> transfer proper

Private factors

Answer 7

1. Ps choice of forum (unless balance of convenience is strongly in favor of D
2. greater deference if P at home (not foreign–Piper)
3. Ds choice of forum
4. whether claim arose elsewhere
5. convenience of parties
6. convenience of witnesses
7. ease of access to sources of proof

Question 8

Public factors

Answer 8

1. transferee’s familiarity with governing laws
2. relative congestion of calendars of cts
3. local interests in deciding controversies at home

Question 9

Piper & Gilbert–> Forum non conveniens dismissal [CL]

Answer 9

authorizes fed and state cts to dismiss based on inconvenient forum when cannot transfer under 1404 to convenient and proper forum

Question 10

For transferring

Answer 10

can only transfer cases within same ct system

Question 11

Atl Marine

Answer 11

FSC. Ct said FSC is a very important factor in ruling on 1404(a) transfer. So when FSC and P filed in an otherwise proper venue, not a 1406 mtn, but 1404 where forum selection is taken seriously

Question 12

Pleadings

Answer 12

Functions of pleadings (1) gives notice of nature of claum, (2) states facts, (3) narrows issues for litigation, (4) gatekeeper of unmeritorious claims

Question 13

Complaints

FRCP 8

Answer 13

(a) A pleading that states a claim for relief must contain:
(1) short and plain statement of grounds for ct’s sm jx, unless ct already has jx
(2) short and plain statement of claim showing pleader is entitled to relief
(3) prayer for relief sought
(d) (1) in general, each allegation must be simple, concise, and direct. No technical form needed
(2) Party may set out 2 or more statements of a claim or defense alternatively. Claim is sufficient if any one of the alternatives is sufficient.
(3) a party may state as many separate claims or defenses as it has, regardless of consistency
(e) pleadings must be construed so as to do justice–> defect in form generally not fatal

inconsistent pleadings allowed up until trial

Question 14

FRCP 9 heigtened pleading standards

Answer 14

(b) in alleging fraud or mistake, party must state with particularity circumstances constituting fraud or mistake. [concerned with reputation harms]
(g) special damages must be specifically stated
–> special damages are those not normally anticipated [eg damages for later miscarriage after car accident.

Question 15

FRCP 10 Form

Answer 15

(a) pleading must have caption including cts name, file no. and rule 7a designation. Title must name all parties.
(b) party must state its claims in numbered paragraphs, each limited to single set of circumstances. Defenses must be stated in separate numbered para.
(c) exhibits are part of pleading

Question 16

alleging facts

Answer 16

P should describe what, when, where, relationships and describe circumstances

Question 17

truth of allegations

Answer 17

allegations may not be true (rule 11)

Question 18

Conley notice pleading standard

Answer 18

complaint merely had to put D on notice of litigation against him

Question 19

Twombly-iqbal plausible pleading standard

Answer 19

1. are allegations well-pleaded? (more than conclusory)
2. assuming truth, do well-pleaded allegations** plausibly state a claim for relief** [relying on judicial experience and common sense]

Question 20

Default

Answer 20

failing to appear or defend

Question 21

FRCP 55 defaults

Answer 21

(a) entering a default–> when a party against whom judgment is sought has failed to plead or defend, and failure is shown by affidavit or otherwise, clerk must enter the party’s default
(b) entering a default judgment
(1) by clerk–> if Ps claim is for a sum certain, and on Ps request with affidavit showing amt due, clerk enters default judgment against D
(2) by court–> in all other cases, P must apply (make case) to ct for DJ. if party against whom DJ has appeared, that party must be served written notice of application at least 7 days before hearing. Ct may conduct hearings
(c) Ct may set aside entry of default for good cause; and entry of DJ under R60(b)

cts prefer judgments on merits, leeway for Ds who FTA

Question 22

FRCP 60

Answer 22

(b) ct may relieve a party from final judgment for following reasons:
(1) mistake, inadvertance, surprise, or excusable neglect
(4) judgment is void
(c) timing and effect of motion
(1) motion under 60(b) must be made within reasonable time and for reason (1), no more than a yr after judgment
(2) motion does not affect judgment’s finality or suspend its operation

Question 23

FRCP 12(a) Time to serve a responsive pleading

Answer 23

(a) time to serve a responsive pleading
(1) in general, unless other time specified:
(A) D must serve an responsive pleading [or motion]
i) within 21 days after being served summons and cmplt; or
ii) if formal service waived, within 60 days of being served

motion not responsive pleading

Question 24

FRCP 12 (b) defenses

Answer 24

(b) every defense to a claim must be asserted in responsive pleading, but party may assert following defenses by motion:
(1) lack of sm jx
(2) lack of pjx
(3) improper venue
(4) insufficient process
(5) insufficient service of process
(6) failure to state a claim upon which relief can be granted
(7) failure to join a party
Motion asserting any of these defenses must be made before pleading. No defense or objection is waived by joining it with other defenses.

Question 25

12(e) motion for more definite statement

Answer 25

(e) party may make motion for more definite statement of pleading to which responsive pleading is allowed when pleading is **so vague or ambiguous** , party cannot prepare a response. Motion must be made **before filing response** (with other 12b defenses), must point out **defects coimplained of and details desired**. if ct orders more definite statement and party doesn't obey w/in 14 days, ct may strike or issue another order

Question 26

12(f) motion to strike

Answer 26

(f) ct may **strike** from pleading **insufficient defense or redundant, immaterial, impertinent, or scandalous** matter. Ct may act: (1) on its own or (2) on mtn made by other party before responding to pleading, or, if response not allowed, within 21 days after being served with pleading

Question 27

12 (g) (h)

Answer 27

(g) omnibus motion rule--> (1) any motions under this rule may be joined (2) if you do not make 12 motion that was available, cannot raise it against once first motion is made in following mtn or answer (h) waiving and preserving defenses (1) party waives defense under rule 12(b)(2)-(5) by (A) omitting it (B) failing to state it in first R12 response (mtn or ans) (2) failure to state a claim, joining person, or to state a legal defense may be raised throughout trial. (3) if ct lacks sm jx at any time--> must dismiss

Question 28

# Answers FRCP 8 (b)(c)

Answer 28

(b)(1)(A) response must **state** in **short plain terms its defenses** to each claim asserted, AND (B) **admit or deny** the allegations asserted against it (2) denials--> denial must fairly respond to substance of allegation (3) **general and specific** denials--> in good faith can generally deny all allegations; or specifically deny certain allegations or generally deny all except those specifically admitted (4) if **deny in part**, must admit the part that is true and deny the rest (5) if party **lacks knowledge** or info to form belief abt truth of allegation--> must so state (6) **failure to deny = admission** [if responsive pleading not allowed--> silence = denied or avoided] (c) affirmative defenses--> must plead or they are waived TLDR: must include **admissions, denials, rule 12(b) defenses, and affirmative defenses** | saying P cannot prove = admission; not applicable for damages

Question 29

# Amendments FRCP 15 (a) amendments before trial

Answer 29

(a)(1) a party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) 21 days after service of responsive pleading or 12 motion, **whichever is earler** (2) in all other cases, party may amend pleading only with written consent of opposing counsel of leave of ct; ct should freely give leave when justice requires (3) Any required reponse to amended pleading must be made within** time remaining** to respond to og pleading, **or within 14 days after service**; whichever is later

Question 30

Foman Factors [to consider when granting leave to amend]

Answer 30

1. **Reasons** for amendment (new facts/evidence vs new theory) 2. Amending party's **diligence** 3. **undue prejudice** on opposing party 4.**futility of amendment** (motion to dismiss standard)

Question 31

FRCP 15 (b) amendments during and after trial [variance] evidence put on that goes beyond what was plead

Answer 31

(1) based on **objection** at trial--> of party objects to variance, ct may permit the pleading to be amended. CT should freely permit amendment when doing so will aid in presenting the merits and objecting party fails to establish that evidence would prejudice party's action or defense (2) issues tried by **consent**--> when an issue not raised by pleadings is tried by parties' express or implied consent (failing to object), must be treated as if raised in the pleadings. Party may move to amend pleadings to conform them to evidence. Failure to amend does not affect result of trial of that issue

Question 32

FRCP 15(c) relation back [relevant if SOL bars amendment]

Answer 32

(1) and amendment relates back to date of og pleading when (A) applicable **SOL allows** (B) Amendment asserts a claim or defense that **arose out of conduct/transaction/occurrence** set out in og pleading; or (C) amendment changes party or naming of party if (B) is satsfied, and if within 90 days, party to be brought it (i) received **notice** of action so it will not be prejudiced (ii) knew or should have known action would be brought against it but for **mistake** of identity [sued wrong D, but right D knew] (Krupski v. Cociere)

Question 33

Rule 11 (a)(b)

Answer 33

(a) **signature**. Every pleading, written motion, or other paper must be signed. Paper must state signer's address, email, and telephone number (b) by **presenting** [signing, filing, submitting, or advocating] pleading, motion, or other to ct--attorney certifies that to **best of their knowledge** formed after **reasonable inquiry under circumstances:** (1) it has a **proper purpose** (2) claims/defenses have **legal basis** warranted by existing law; or by nonfrivolous argument to extend or modify law (3) factual contentions have **evidentiary support** (4) **denials** of factual contentions are **warranted on evidence**, or reasonably based on belief or lack of info | if violation, must consider whether violation infected entire pleading o

Question 34

11(c) sanctions

Answer 34

Deter not punish. (1) if after notice and reasonable op to respond, ct determines 11(b) violated, **ct may impose santions**. Law firm must be held jointly responsible for violation by partner/associate (2) Motion for sanctions. Separate motion that describes specific conduct that violates rule 11. Must be **served but not filed for 21 days**, giving served party chance to correct defect (3) on ct's initiative--> ct may order party to show cause why specific conduct has not violated rule 11 (Hunter v. Earthgrains) (4) must be limited to what suffices to deter repetition, can include monetary penalties, or non-monetary directives.

Question 35

28 USC §1927

Answer 35

ct has authority to punish unreasonably and vexatiously "multiplied" litigation