civ pro

Question 1

federal question jxn

Answer 1

exists when the claim arises under federal law, us constitution, or us treaty

P must be enforcing a federal right and must be present on the face of a well plead complaint

raising defense under fed law is not enough

Question 2

diversity jxn

Answer 2

requires complete diversity at time action is commenced and controversy exceeding $75k

Question 3

complete diversity citizenship requires

Answer 3

no p can be from same state as any D

citizenship is determined by domicile when action is commenced

• natural person: residence and subj intent to make the state their permanent home
• corp: dual citizenship at principal place of business and any state of incorporation
• unincorp association: domiciled in state of every partner/member/owner
• execut/personal rep: citizenship is that of decedent or person being represented

Question 4

> $75k controversy diversity jxn

Answer 4

based on damages alleged in good faith in complaint unless it is legally certain that P cannot recover amount

injunctive relief = the amount of the benefit to P or cost of compliance for D

may aggregate claims against one D or against multiple D if jointly and severally liable

Question 5

supplemental jxn

Answer 5

allows party to bring state claim in federal court that does not meet requirements of SMJ where such additional claim arises from a common nucleus of operative fact (same t/o) as the other claim the court has SMJ over

limitations:

• cannot be used to overcome lack of diversity
• cannot be asserted if would violate complete diversity
• does not apply to claims by OG P against third party D

court may decline supp jxn when

• claim raises novel or complex issue of state law
• claim sub predominates over other claims the court has SMJ over
• court dismissed all claims that had federal SMJ or
• exceptional circumstances

Question 6

removal

Answer 6

D may remove case to fed court in the district court where the state court case was filed if

1. fed court has SMJ
2. all D agree
3. No D is resident of forum state (if based on diversity jxn) AND
4. removal is sought within 30 days of service of summons or receiving initial pleading justifying removal

P cannot remove to fed court

Question 7

personal jurisdiction requires

Answer 7

must have PJ over party based on traditional bases and long-arm jxn

Question 8

traditional basis of PJ

Answer 8

domicile, presence in state when served, consent or waiver (appearing without objection)

all comport with DP requirements

Question 9

long arm jxn non-resident

Answer 9

state must have long-arm statute and comply with constitutional DP requirements

D must have sufficient minimum contacts with the forum state so as to not offend traditional notions of fair play and sub justice

Question 10

minimum contacts PJ

Answer 10

contacts + relatedness
either:
1. gen jxn: contacts substantial and of such nature D is essentially at home (individuals = domicile or corp = where incorporated or PPB) or
2. specific: connection b/t forum state and underlying controversy and lawsuit arises from contact w/ forum state

Question 11

service of process timing

Answer 11

summons and complaint must be served on D within 90 days after filed with court

remedy for improper service: dismiss action without prejudice or order that service be made within specific time period

Question 12

service of process - method of service and who can receive

Answer 12

Process server - must be 18+ AND not a party to action

method: consistent with DP - reasonably calculated to make parties aware of action and give them opportunity to object.

individual - may be served personally, via someone of suitable age and discretion at individual current dwelling, via an agent, or in accordance with state law of forum state or where service is made

corporation - may be served in accordance with state law of forum state or where service is made or to an officer or managing/general/authorized agent

foreign corp: in accordance w/ foreign country law, as directed by foreign country after inquiry, by mail w/ signed receipt if address is known, or any means authorized by federal court

Question 13

proper venue

Answer 13

any district where

1. any D resides (if all D reside in forum state)
2. substantial portion of claim occurred
3. substantial portion of property is located or
4. if none of above, then where any D is subject to court PJ

*determined at the time action is filed

Question 14

transfer of venue

Answer 14

if venue was proper:
may transfer if needed for convenience of witness or interest or justice and the case could have been initially brought in the receiving court

if venue was improper:
the court must either dismiss the case or transfer to a proper court if interest of justice require

*forum selection clause are generally enforceable

Question 15

erie doctrine

Answer 15

applies when fed case is brought under diversity jxn
federal courts apply substantive law of forum state but federal procedure law

procedure = civil procedure, statute of limitations, burden of proof, rebuttable presumptions

substantive = choice of law, SOF, irrebuttable presumptions, SOL that condition a substantive right or have a borrowing statute

Question 16

preliminary injunction

Answer 16

maintains status quo until action is heard

may be issued only

1. upon notice to adverse party and
2. moving party gives security

4-prong test for issuance:

1. success on merits
2. threat of irreparable harm
3. potential harm outweighs any harm to non-moving party and
4. is in public interest

Question 17

temporary restraining order

Answer 17

an emergency remedy used to maintain status quo pending outcome of preliminary injunction application. to be issued, movant must allege immediate and irreparable harm, and court will analyze the same factors as prelim injunction

ex parte TRO - moving party must

1. provide specific facts in sworn affidavit showing immediate and irreparable injury, loss, or that damage will result before an adverse party can be heard
2. certify in writing any efforts made to give notice to adverse party and why notice should not be required and
3. give security in amount court deems proper (unless US, its officers, or agent)

automatically expires after 14 days unless the court sets shorter time frame, the court extends for good cause, or parties consent
**cannot be issued more than 28 days without becoming prelim injunction

Question 18

amendment of pleading as matter of right

Answer 18

allowed to amend once as matter of course
• Within 21 days after service or
• within 21 days of service of responsive pleadings or pre-answer motion (rule 12)
• Opposition party has 14 days, or time remaining on 21-day deadline (whichever is longer) to respond to amended pleadings

Question 19

amendment of pleading without right

Answer 19

allowed with opposing party written consent or with leave of court upon motion (freely granted when justice requires)

Question 20

waived defenses

Answer 20

if not included in first response, these defenses are waived
lack of PJ, improper venue, insufficient process, insufficient service of process

Question 21

relation back doctrine

Answer 21

when complaint is amended to add
new claim –> related back to date of OG filing if arises out of same t/o as OG pleading allegations

new D –> relates back if

1. same t/o
2. new party received notice of OG action within 90 days of filing and
3. new party knew or should have known that action would have been brought against them but for a mistake in party identity

Question 22

counterclaims

Answer 22

permissive - counterclaims against opposing party that are not compulsory

compulsory - claim that arises out of same t/o and does not require adding another party out of court’s jxn (must be stated in party’s pleading or its barred in future litigation)

Question 23

rule 11 - representations to the court

Answer 23

all papers served in litigation must be signed by an atty of record or by the party if unrepresented. when presenting the papers to court, the party certifies

1. it is not being presented for any improper purpose
2. the legal contentions are warranted and non-firvolous
3. the factual contentions have evidentiary support or likely will after discover and
4. denials of factual contentions are warranted or reasonably based on lack of information

rule 11 does not apply to discovery or discovery motions

Question 24

rule 11 sanctions imposed

Answer 24

the court may issue sanctions by motion or on its own for failure to comply with rule 11. nature of sanctions are within court discretion and includes non-monetary directives, pay penalty, or pay reasonably atty fee or expenses resulting from violation

liability: generally, law firm is jointly responsible for a violation by partner, associate, or employee
monetary sanctions cannot be issued against client for an unwarranted claim, defense, legal contention made by atty

Question 25

procedure for filing rule 11 sanction

Answer 25

a party cannot file rule 11 sanction motion without first

1. serving the motion on the offending party and
2. giving opponent 21 days to withdraw or correct the paper/pleading

Question 26

permissive joinder of parties

Answer 26

multiple plaintiffs or defendants may be joined in one action if

1. joint and several relief is asserted by them or the claim arises out of same t/o
2. common question of law or fact and
3. SMJ is present for each claim

logical relationship test: all logically related events for legal action are within the meaning of same t/o

Question 27

mandatory joinder

Answer 27

party must be joined if

1. the party is necessary to the action and
2. joinder is feasible

a party is necessary if

1. court cannot grant complete relief without the party
2. the absent party claims an interest in the action that would be impaired or impeded or
3. the party’s absence creates a substantial risk of multiple liability or inconsistent obligations

joinder is feasible if

1. joinder will not remove SMJ and
2. court has PJ over party

if joinder is not feasible, the court will consider factors to decide whether or not to dismiss the action: prejudice, ability to lessen prejudice, ability to issue adequate judgment, and if plaintiff would have remedy if the case is dismissed

Question 28

intervention as of right

Answer 28

a court must permit non-party to intervene in action if it demonstrates that:

interest in subject matter of the action and protection of this interest is not adequately represented by existing parties in the action or
statutory right of intervention

**joinder in diversity requires independent SMJ

Question 29

permissive intervention

Answer 29

court may allow non-party to intervene when the non-party

either (a) has a claim or defense that shares common question of law or fact with the main action or (b) is given conditional right to intervene by fed statute

**court must consider whether intervention will unduly delay or prejudice adjudication of the OG parties rights

Question 30

impleader

Answer 30

D may bring a third-party into action only if
third-party is or may be liable to D for all or part of the claim against D

**claims merely arising out of the same t/o are insufficient unless derivative liability exists - i.e., indemnity or contribution

court must have PJ over party and SMJ (gen will have supp jxn)

Question 31

class action requirements

Answer 31

a person is allowed to sue on behalf of a class when there is

1. numerosity - class is so numerous that joinder is impractical
2. commonality - questions of law or fact are common to the class
3. typicality - the claims/defenses of representative parties are typical of the class AND
4. adequacy of representation - the representative parties, incl. clounsel, will fairly and adequately protect interests of the class

Question 32

class action certification

Answer 32

if the requirements are met, the class will be certified if

1. inconsistent/dispositive adjudications - separate actions would create risk of inconsistent adjudications or harm the interest of absent class members
2. declaratory injunctive relief - the party opposing the class has acted/refused to act on grounds that apply generally to the class so that the grounds for declaratory/injunctive relief are appropriate to the whole class or
3. predominance and superiority - common questions of law or fact are predominant and a class action is superior to other methods

Question 33

discoverable information

Answer 33

a party may obtain all non-privilege information that is relevant to any party’s claim or defense AND proportional to the needs of the case

the info does not have to be admissible into evidence to be discoverable

once a person reasonably anticipates litigation, that person has duty to preserve all relevant evidence

Question 34

deposition rules

Answer 34

a party is permitted up to 10 depositions of any person/party, so long as deposition is

1. limited to 1 day of no more than 7 hours AND
2. proper notice is given (reasonable written notice)

subpoena is not required to depose any party in action

until stipulated otherwise, a party must obtain leave of court to

1. take more than 10 depositions
2. depose a party again, if already deposed in action or
3. seeking deposition prior to the rule 26(f) meet and confer conference

Question 35

sanctions for failure to preserve ESI (electronically stored info)

Answer 35

the court may sanction party for failure to preserve ESI if

1. ESI should have been preserved (reasonably anticipate litigation)
2. the party failed to take reasonable steps to preserve and
3. ESI cannot be replaced/restored through additional discovery

if satisfied, the court may

1. order measures no greater than necessary to cure any prejudice or
2. if failure to preserve was intentional: presume lost information was unfavorable, instruct jury that is may presume lost info was unfavorable, dismiss action, or enter default

Question 36

signing discovery document certifies that it is…

Answer 36

1. consistent with FRCP and is not frivolous
2. not being presented for improper purpose and
3. not unreasonable, unduly burdensome, or unduly expensive

signing disclosure certifies that it is complete and correct at time it is made

Question 37

sanctions for improperly certifying discovery document

Answer 37

if a person violates the rule without substantial justification, the court must impose an appropriate sanction

Question 38

rule 26(a) initial disclosures

Answer 38

without request, each party must provide these initial disclosures to opposing parties within 14-days after 26(f) meet and confer conference:

1. contact info of people likely to have discoverable information, plus the info they likely possess
2. copy or description of all docs, ESI, and tangible items the party may use to support its claims/defenses unless it will be used solely for impeachment
3. computation of each category of damages and
4. any insurance agreement that may be liable to satisfy judgment in action

if the party fails to provide the info, that party is not allowed to use the info or witness not provided on motion, hearing, or trial unless the failure was substantially justified or harmless

Question 39

attorney work product doctrine

Answer 39

protects from disclosure all materials prepared by an attorney or his agents in anticipation of or during litigation unless

1. substantial need for materials exists and
2. substantial equivalent cannot be obtained without undue hardship

Question 40

privilege log

Answer 40

when a party claims work product protection, it must disclose the existence of the material in sufficient detail to enable other parties to asses the claim of privilege

Question 41

pretrail conference

Answer 41

the court may order attorneys and pro se parties to appear for pretrial conference to control management and scheduling of case

Question 42

scheduling order modification

Answer 42

can be modified only for good cause and with judge consent

Question 43

modification of pretrial conference order

Answer 43

can only be modified to prevent manifest injustice

Question 44

motion to dismiss standard

Answer 44

requires the court to consider facts in light most favorable to the non-moving party and determine if there is any basis upon which relief can be granted

can be based on SMJ, PJ, venue, process, service of process, failure to state a claim, failure to join necessary party

Question 45

motion for judgment on pleadings

Answer 45

after defendant answers, either party may move for motion for judgment on pleadings where complaint and answer show one party must win

Question 46

motion for summary judgment

Answer 46

a court will grant SJ when there is no genuine issue of material fact and movant is entitled to judgment as matter of law

the court views evidence most favorable to non-moving party
can be sought on the entire case or for certain issues (partial SJ)
if MTD presents matters outside of pleadings, the court may treat it as SJ motion

timing: before trial, no later than 30 days after close of discovery

Question 47

Motion for judgment as matter of law

Answer 47

timing: brought any time before the case is submitted to jury
standard: will be granted if non-moving party has been fully heard on the issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on the issue

the court must draw all reasonable inference in favor of non-moving party

Question 48

renewal JMOL motion

Answer 48

timing: within 28 days of entry of judgment
standard: can only be renewed if it moved for JMOL before case was submitted for jury and can only be made on the same ground the original JMOL was made on

same standard as JMOL applies

Question 49

motion for new trial

Answer 49

timing: no later than 28 days after entry of judgment

court may grant new trial for any reason which new trial has been granted previously in fed court. court considers how much weight to give jury verdict and must find some serious error that occurred during trial

grounds for new trial:
error at trial that makes judgment unfair
new evidence surfaced that could not be obtained with due diligence for the OG trial
prejudicial misconduct of a party, attorney, third-party, or juror
verdict was excessive or inadequate

Question 50

motion for more definite statement

Answer 50

complaint so vague D cannot reasonably prepare response

Question 51

interrogatories

Answer 51

question to be answered in writing, under oath, limited to 25 questions including subparts (unless court order or stipulation) and must be answered within 30 days

only allowed to parties of the case

answer must be based on records reasonably available

Question 52

default judgment

Answer 52

a default judgment will have preclusive effect if court had jxn. states vary on preclusive effect, but state court must give JT in fed diversity same effect it would give state court. default JT bars party from asserting compulsory counterclaims that could have been raised in OG action

if D failed to appear –> the clerk may enter default for amount set in affidavit if claim is for certain sum

if D appeared but defaulted –> judge may enter default and additional notice is required

D can set aside DJT if there is good cause and viable defense

Question 53

claim preclusion (res judicata)

Answer 53

precludes a party from subsequently re-litigating any claim that was or could have been raised
elements:
1. parties are identical or in privity
2. prior judgment was rendered by court of competent jxn
3. final judgment on merits in prior action and
4. same claim was involved in both actions - claim arises out of same t/o

privity = exists when non-party has a legally recognized relationship w/ the OG party and would be bound by judgment against OG party

Question 54

issue preclusion - collateral estoppel

Answer 54

precludes party from attempting to retry an issue if there has been final judgment on merits by court of competent jxn

elements

1. valid and final judgment on merits
2. issue is identical to issue decided in prior action
3. issue was actually litigated, determined, and essential to prior action and
4. party against whom enforcement is sought had full and fair opportunity to litigate the issue in prior action

generally, a non-party to prior action may assert issue preclusion

Question 55

final judgment rule appeals

Answer 55

a fed appeals court can only hear an appeal from final judgment on the merits unless an exception applies. final judgment is one which ends litigation on the merits (all claims are resolved) and leaves nothing for the court to do but execute judgment

appeal must be filed within 30 days after entry of judgment

exceptions to rule:

1. 54(b): immediate appeal is allowed when action has multiple parties or claims, court directs final judgment for some of claims or parties, AND court expressly determines that there is no just reason for delay of appeal
2. statutory exception: can immediately appeal orders for injunctions, receiverships, possession of property, liability in admiralty action, and patent infringement orders
3. certified appeal: immediate appeal when fed district court judge certifies certain grounds for immediate appeal and the court of appeals agrees to permit the appeal (application must be made within 10 days of order)
4. collateral order doctrine: allows immediate appeal if the interlocutory order conclusively determines disputed question, resolves an important issue that is separate from merits of action, and is effectively unreviewable on appeal from final judgment
5. writ of mandamus & prohibition: immediate appeal if abuse of authority by trial court - cannot be used to correct ordinary error
6. pendent appellate jxn: non-final order reviewable along with another appealable order currently pending before appellate court when a non-appealable decision is inextricably intertwined with an appealable decision or review of non-appealable order is necessary to ensure meaningful review of appealable order
7. cert class action: order granting/denying class-action cert may be appealed when petition for permission to appeal is filed within 14 days after entry of order and court of appeals agrees to hear appeal

Question 56

expert witness disclosure

Answer 56

if intended to call the expert at trial, the opinion of the witness consulted is discoverable

if a witness is consulted in anticipation of litigation, but there is no intention to call them at trial, then the opinion is not discoverable unless there is a showing of exceptional needs

Question 57

voluntary dismissal

Answer 57

without leave of court:
Allowed before D serves a MSJ or answer
Dismissal is without prejudice provided this is the first time that P has dismissed her case; otherwise, it is dismissed w/ prejudice

with leave of court
Court has discretion to grant on terms and conditions deemed proper; Dismissal is without prejudice unless court states otherwise

Pending counterclaim – if D has filed counterclaim, P cannot voluntarily dismiss without D consent