Civ Pro

Question 1

In Personam Jurisdiction (PJ)

Answer 1

Forum must have PJ over defendant. Parties can consent to PJ.

Analysis includes: (1) contact (purposeful availment and foreseeability), (2) relatedness (does P’s claim arise from D’s contact with the forum?), and (3) fairness (consider state’s interest, P’s interest, and burden on D and witnesses).

Question 2

In Rem

Answer 2

Type of personal jurisdiction where forum has power to adjudicate rights of all persons to a particular item of property; defendant not personally bound

Question 3

Quasi In Rem

Answer 3

Type of personal jurisdiction.

Type I - court adjudicates rights of parties in property based on property being in forum; close connection between case and property provides minimum contacts.

Type II - court attaches property to bring defendant into forum on unrelated claim; defendant must have minimum contacts with forum.

Question 4

Diversity of Citizenship Requirements

Answer 4

Every defendant must be of diverse citizenship from each plaintiff (complete diversity) or between a US citizen and foreign citizen (alienage); and jurisdictional amount in controversy must exceed $75,000.

Determined at time lawsuit is filed. Amount in controversy is determined from plaintiff’s good faith allegation.

Case cannot be removed based on diversity more than 1 year after it was commenced in state court, unless district court finds plaintiff acted in bad faith (like failing to disclose true amount in controversy).

Question 5

Diversity Jurisdiction of Corporations

Answer 5

A corporation is a citizen of: (1) every state in which incorporated, and (2) the one state of its principle place of business. A corporation can be a citizen of multiple states for diversity purposes.

Question 6

Diversity of Citizenship for Individuals

Answer 6

For diversity, citizenship of an individual is the state in which he has his permanent home (domicile) and to which he intends to return. An individual can only have one citizenship. A party’s domicile may be changed by (1) being physically present in the state, and (2) intent to remain there permanently.

Question 7

Supplemental Jurisdiction

Answer 7

Once one claim satisfies requirements for original SMJ, the court has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of facts (“the test”) and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding.

A party may use SJ if the claim meets “the test” (common nucleus of operative facts) UNLESS the claim (1) is asserted by a plaintiff, (2) in a diversity of citizenship (not FQ) case, and (3) is asserted against a citizen of the same state as plaintiff.

Make sure one claim has diversity or FQ (SMJ) before using supplemental.

Question 8

Federal Question Jurisdiction

Answer 8

To satisfy FQ jurisdiction, FQ must appear as part of plaintiff’s cause of action set out in well-pleaded complaint. FQ jurisdiction is not satisfied if FQ appears in defendant’s answer, counterclaim, or cross-claim. Complaint will not create FQ jurisdiction if it alleges federal issues only in anticipation of some defense. No amount in controversy requirement.

Question 9

When plaintiff has both federal & state-based claims against defendant & diversity jurisdiction does not exist, the federal court has . . .

Answer 9

Discretion to exercise supplemental (pendent) jurisdiction over the claim based on state law if the 2 claims are so related that they’re part of the same case or controversy (common nucleus of operative facts) and are such that a plaintiff would ordinarily be expected to try them all in one proceeding.

Court may continue to exercise supplemental jurisdiction over the state claim even if the federal claim is dismissed on the merits.

Question 10

Service of Process

Answer 10

Includes a summons and complaint. Must be served by a non-party 18+ within 90 days after filing complaint.

Question 11

Subject Matter Jurisdiction (SMJ)

Answer 11

Regards court’s power over the case, not the parties. Parties cannot consent to SMJ.

Diversity of citizenship: between citizens of different states or between citizen of a state and foreign citizen. Amount in controversy must exceed $75,000.

Federal question:

If you can’t get diversity or FQ, try supplemental.

Question 12

Citizenship of Unincorporated Associations (LLCs)

Answer 12

The citizenship of all of its members. Can have citizenship in multiple states.

Question 13

Erie Doctrine

Answer 13

First, ask if there’s federal law on point that directly conflicts with state law. If so, apply federal law so long as it’s procedural, not substantive.

Second, if there’s no federal law, federal judge must apply state law if issue is substantive.

Third, if no federal law and issue is not one of 5 substantive issues, judge must determine whether issue is substantive based on if it’s outcome determinative, balancing federal/state interest, and avoiding forum shopping.

5 clearly substantive issues: (1) elements of a crime/defense, (2) statute of limitations, (3) rules for tolling statutes of limitations, (4) conflict (or choice) of law rules, and (5) standard for whether to grant new trial because a jury’s damages determination is excessive or inadequate.

Question 14

Proper Venue

Answer 14

Venue is proper in any district where all defendants reside or a substantial part of the claim arose.

If defendants reside in different districts of forum state, P can lay venue in district where any D resides.

Venue is considered waived unless a timely objection is made in the first response or answer.

Question 15

Complaint Requirements

Answer 15

(1) a statement of grounds of SMJ, (2) a short statement of the claim, showing entitled to relief, and (3) a demand for relief sought (damages, injunction, declaratory judgement).
Remember: SMJ, entitlement, & relief sought

Fraud, mistake, and special damages claims must be plead with more particularity and specificity!

Question 16

Rule 12(b) Defenses

Answer 16

(1) lack of SMJ (can be raised for first time on appeal!)
(2) lack of PJ (waivable)
(3) improper venue (waivable)
(4) improper process (problem with papers) (waivable)
(5) improper service of process (waivable)
(6) failure to state a claim
(7) failure to join indispensable party

Waivable defenses (2-5) must be put in the first Rule 12 response or else they’re waived!

Question 17

Cross Claim

Answer 17

Never compulsory! A claim against a co-party. It must arise under the same transaction or occurrence as the underlying action. You can assert it here or sue separately.

Crossclaims always meet “the test” for supplemental jurisdiction because they always arise under the same transaction or occurrence as the underlying action.

Question 18

Counter Claim

Answer 18

A claim against an opposing party. Still requires SMJ.

Permissive: does not arise from same transaction or occurrence as plaintiff’s claim. You aren’t required to file it in this case. You can sue on it in a separate case.

Compulsory: arises from same transaction or occurrence as plaintiff’s claim. Unless you’ve already filed the claim in another case, you MUST assert it in this case. Use it or lose it. This is the ONLY compulsory claim in the world!

Question 19

Class Action

Answer 19

Four initial requirements:

(1) Numerosity - too many class members for practicable joinder.
(2) Commonality - there’s some issue in common to all members, so resolution of that issue will generate answers for everyone.
(3) Typicality - rep’s claims are typical of those of the class
(4) Representative adequate: the class Rep will fairly and adequately represent the class

Question 20

Preliminary Injunction

Answer 20

Order to maintain status quo until trial. Can’t be issued ex parte. Applicant must post bond (like TRO). Court must make specific findings of fact and separate conclusions of law (not required for TRO).

Burden is on applicant to show:

(1) he’s likely to suffer irreparable harm if the injunction isn’t issued,
(2) he’s likely to win on the merits of underlying case,
(3) balance of hardships favors him (threatened harm to applicant outweighs harm to other party if the injunction is issued); and
(4) injunction is in the public interest.

A ruling granting or denying a preliminary injunction is appealable as a right.

Question 21

Temporary Restraining Order (TRO)

Answer 21

Before getting a preliminary injunction, you may seek a TRO. If TRO is issued, applicant must post bond to cover other side’s cost if it turns out the restraint is wrongful. Effective no more than 14 days. Can be extended to 28, but after that it becomes preliminary injunction. Not appealable as a right.

A TRO must (1) state its terms specifically, (2) describe in detail what D must do or refrain from doing, (3) state why it was issued, and (4) why the threatened injury to P was irreparable.

Question 22

TRO Ex Parte

Answer 22

Court can issue TRO ex party only if: (1) applicant files paper under oath clearly showing he’ll suffer immediate and irreparable harm if he must wait until other side is heard, and (2) applicant’s lawyer certifies in writing her efforts to give oral or written notice to D or D’s lawyer.

Question 23

Forum Non Conveniens

Answer 23

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

Question 24

Motion for New Trial

Answer 24

Must be made within 28 days after judgment is entered. May be granted when there was an error during trial, like jury misconduct or verdict goes against evidence.

When appellate court reviews a trial court’s denial of motion for new trial, it employs more deferential standard, reversing trial court’s denial only when there’s a clear abuse of discretion.

Question 25

Motion for Relief from Judgment

Answer 25

The time period for bringing a motion for relief from judgment based on fraud, misrepresentation, misconduct of adverse party, or newly discovered evidence is within a reasonable time, not to exceed one year from the judgment.

Question 26

Amount in Controversy

Answer 26

Must exceed $75,000 as determined by plaintiff’s good faith allegation in the complaint.

Question 27

Specific Jurisdiction

Answer 27

When defendant’s contacts are related to the cause of action, it results in jurisdiction over defendant for the instant case only.

Question 28

General Jurisdiction

Answer 28

If defendant’s contacts with forum state are unrelated to the cause of action, there must be general jurisdiction (that is, PJ over defendant for all causes of action) in order to assert PJ.

To be subject to general jurisdiction in a forum state, defendant must be “at home” in the forum. To be “at home”, an individual must be domiciled in the state, or a corporation must be incorporated or have its PPB there.

Question 29

Removal

Answer 29

Only defendants may remove. If there are multiple defendants, they must agree. Plaintiff may not remove on the basis of a counterclaim against him that could have been brought in federal court.

Notice of removal must be filed within 30 days after defendant receives notice that the case has become removable. If a diversity action is not initially removable but later becomes removable (as by dismissal of a nondiverse defendant), it may not be removed more than one year after it was commenced in state court.

A case may not be removed on the basis of diversity jurisdiction if a defendant is a citizen of the state in which the action was filed.

Question 30

Issue Preclusion (collateral estoppel)

Answer 30

For a party to be bound by issue preclusion, (1) there must have been a final judgment; (2) the issue must’ve been actually litigated and determined; (3) the issue must’ve been essential to the judgment; and (4) party to be bound by prior judgment must’ve been a party to the prior action or in privity with a party to the prior action.

A judgment binds the plaintiff or defendant in subsequent actions on different causes of action as to issues that were actually litigated and essential to the judgment.

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.

Question 31

Claim Preclusion (res judicata)

Answer 31

It must be shown that (1) the earlier judgment is a valid, final judgment on the merits (it’s not necessary that the judgment be satisfied); (2) the cases are brought by the same claimant against the same defendant; and (3) the same “cause of action” (or claim) is involved in the later lawsuit.

Where claimant (plaintiff) won the earlier lawsuit, the claim “merged” into the prior judgment. Where defendant won (plaintiff lost) the earlier lawsuit, the claim is “barred” by the prior judgment.

Question 32

Motion for Judgement as a Matter of Law (JMOL or Directed Verdict)

Answer 32

Allows judgment for a party if court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party. Evidence is viewed in light most favorable to nonmoving party.

May be made by a party at any time after the party has been fully heard on the issues. Must be made before it is submitted to the jury. This is a pre-requisite for making a JNOV.

Question 33

Remittititur

Answer 33

Arises when a judge believes a jury’s award of compensation damages is so excessive it shocks the conscious. Judge may offer the plaintiff remittitur or make a motion for a new trial. Plaintiff can accept a lesser award, or can submit to a new trial. Court can’t simply lower the award.

Question 34

Impleader

Answer 34

Used when there’s an allegation that a third party will owe the defendant if the plaintiff wins. (Remember indemnity)

Question 35

Motion for Summary Judgment

Answer 35

Made during discovery or within 30 days after close of discovery. Must be genuine issue of material fact, and entitled as a matter of law.

Question 36

Renewed Motion for Judgment as a Matter of Law (JNOV)

Answer 36

Can be made up to 28 days after entry of judgment. To make motion for JNOV, you must also make a motion for JMOL at some point during trial.

Question 37

Default Judgment

Answer 37

If defendant doesn’t respond or hasn’t appeared, plaintiff can move to have default judgment entered without notice given to defendant. But if defendant has responded or appeared, they get 7 days notice.

If the claim is for an uncertain amount, the judge must do it, but if claim is for sum certain, clerk can do it.

Question 38

Additur

Answer 38

Defendant is allowed the choice between a higher award or a new trial. This is not allowed in federal court. Rather, in federal court, the only option is a new trial.

Question 39

Standards of Review

Answer 39

Matters of law: de novo (remember: latin = law)

Questions of fact: only disturbed on appeal if clearly erroneous.

Question 40

Remand

Answer 40

Plaintiff can file motion to remand to state court. If plaintiff basis this motion on a defect other than SMJ (like a defect in removal procedure), the motion must be brought within 30 days of removal.

Question 41

Discovery

Answer 41

Discovery may be had of any (1) non privileged matter, (2) that’s relevant to any party’s claim or defense, and (3) is proportional to the needs of the case. Discoverable info does not have to be admissible at trial to be discoverable.

Question 42

Non-party Intervention (Rule 24)

Answer 42

A nonparty may intervene in an action as a matter of right when it has an unconditional right to do so by a federal statute, or (i) it has an interest in the property or transaction that is the subject matter of the action; (ii) the disposition or resolution of the action may as a practical matter impair the nonparty’s ability to protect its interest; and (iii) the nonparty’s interest is not adequately protected by an existing party in the action.

Question 43

Relate Back

Answer 43

An amendment “relates back” to the date of original pleading when the claim or defenses asserted in the amended pleading arose out of the same conduct, transaction, or occurrence set out in the original pleading.

Question 44

7th Amendment

Answer 44

Both plaintiff and defendant have right to a jury trial for civil actions in federal court of facts in all “suits of common law” (legal claims, not equitable claims) where the amount in controversy exceeds $20.

Question 45

Dismissal for Lack of Prosecution

Answer 45

Considered “with prejudice”. Operates as an adjudication on the merits unless court designates otherwise.

Question 46

Common Question Class Action

Answer 46

Judge may refuse to approve a class action settlement unless class members are given a second opportunity to opt out.

Question 47

Burden of Going Forward with the Evidence

Answer 47

Burden of producing sufficient evidence to create a fact question of issue involved. If plaintiff makes out prima facie case, he met his burden of going forward with the evidence and burden shifts to defendant.

Question 48

Federal Interpleader Act

Answer 48

Interpleader can be brought if any two claimants are citizens of different states and the amount in controversy is $500 or more. Complete diversity is not required.

Question 49

Interpleader

Answer 49

Allows a party to initiate a lawsuit to compel two or more other parties to litigate a dispute.

Question 50

Interlocutory Orders

Answer 50

Non-final rulings trial judges make during pretrial proceedings and trials that don’t completely resolve the case. Typically not immediately reviewable on appeal until a final order is made, unless an exception applies.

Question 51

Appealable as a Right

Answer 51

Injunctions, orders appointing a receiver, orders in admiralty cases finding liability but leaving damages to be assessed later, patent infringement orders where only accounting is ordered, and orders affecting/changing possession of property.

Question 52

Interlocutory Appeals Act

Answer 52

May permit review of an interlocutory order, but it’s discretionary, and may be available only when: (1) trial judge certifies that the interlocutory order involves a controlling question of law, as to which there’s substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of litigation; and (2) court of appeals then agrees to allow the appeal.

A party obtaining such a certificate from the judge must, within 10 days, apply to the court of appeals, where 2/3 judges must agree to hear the appeal.

Question 53

Dead Man’s Act

Answer 53

In a civil action, a party with an interest in the litigation may not testify against a dead party about communications with the dead party.