Civ Pro

Question 1

FRCP 4(a)

Answer 1

provides that a summons shall be signed by a clerk of the court. It also describes the technical requirements of form for a summons and the information that it must contain — the names of the court and the parties, the name and address of plaintiff’s attorney, the time within which the defendant must respond, and a statement that failure to respond will result in default.

Question 2

FRCP 4(b)

Answer 2

deals with the issuance of the summons and indicates that the complaint must first be filed with the court (filing “commences” the action 
he plaintiff or her attorney bears the responsibility of effecting service, which must include the summons and a copy of the complaint.

Question 3

FRCP 4(c)

Answer 3

allows the summons and complaint to be served by anyone at least 18 years old, as long as he is not a party to the suit.

Question 4

FRCP 4(d)

Answer 4

Waiving of Service
No effect on Ds right to object to improper jurisdiction or venue
waivers sufficiency of form and method of service
not available for serving the United States
P must give D reasonable time, at least 30 days from sent (60 for outside any judicial court of us)
o If D makes timely return of waiver signed,
 Can have 60 days from date request mailed to D by P, to send an answer in the action (90 days if outside judicial court of us)
o If D refused waiver, D bears cost of subsequent service from P unless good case is shown, cost shifting only if D and P are in US

Question 5

FRCP 4(e)

Answer 5

4(e)(1) broadens the methods for effecting service by allowing service methods permitted under state law from where the federal district court sits where service was initiated (filed) or the state law where the service is made
4(e)(2) sets forth the federal manner for service upon individuals:

Question 6

FRCP 4(e)(2)

Answer 6

sets forth the federal manner for service upon individuals: 3 Options
o 1. Personal service, directly to the individual (hand document to person) anywhere
o 2. Substituted Service: personally or by leaving copies w/ a person “of suitable age and discretion” at the “individuals dwelling or usual place of abode” who must reside there
o 3. Serve agent; ex. agent appointed by contract or by operation of law (i.e nonresident motorist act)

Question 7

FRCP 4(g)

Answer 7

deals with service upon minors and incompetents, such service must be made according to state law

Question 8

FRCP 4(h)

Answer 8

Service upon corporations
o Made by serving an “officer”, a “managing or general agent” or an agent designated to receive service
 I.e for officer; corporate president or secretary
 Managing or general agent: title doesn’t matter, job responsibilities does
 4 (e) (1) also allowed
(1) the degree of control and discretion exercised by the putative agent in the association or, more practically, (2) whether the agent’s position in the association is such that the service is likely to come to the attention of those responsible for protecting the association’s interests in litigation.

Question 9

FRCP 4(i)

Answer 9

addresses service upon the United States as a defendant. Service may be made personally upon the U.S. Attorney (or his designee) for the district in which the action is brought or by registered or certified mail, addressed to the civil process clerk at the office of the U.S. Attorney. In addition, a copy of the summons and complaint must be sent by regular or certified mail to the Attorney General of the United States.

Question 10

FRCP 4(j)(2)

Answer 10

provides the manner of service upon state or local governments. Such service may be made by serving the chief executive officer (e.g., the state governor) or in whatever manner is prescribed by state law.

Question 11

FCRP 4(l)

Answer 11

establishes a system for return of service, intended to facilitate proving that service was actually effected. Note that failure to execute a return of service does not, in and of itself, invalidate the service.

Question 12

FCRP 4 (m)

Answer 12

Time limits on Service
contains information related to time limits on service. It also requires that service be made within 90 days after the complaint is filed but it explicitly allows the court to extend the time for service beyond that 90 days, upon a showing of good cause for the delay, and to direct that it be effected within a specified period.

Question 13

Service in a Foreign Country

Answer 13

The Hague Service Convention is the exclusive method for serving process when “there is occasion to transmit a judicial or extrajudicial document for service abroad”
to receive requests for service coming from other contracting States” (Art. 2) and to arrange p. 245for service to be made in a manner compatible with the law of that State (Art. 5). Alternative methods of service through diplomatic or consular agents (Art. 8) or via mail (Art. 10) may also be used, unless the state of destination objects.

Question 14

Federal Rule 4(f)(2)

Answer 14

Foreign service of process
authorizes various other methods of service, which include (A) service prescribed by the foreign law, (B) service directed by the foreign authority in response to a letter rogatory or letter of request, or (C) personal service or mail with a signed receipt dispatched by the clerk of the court, if these methods are not prohibited by the law of the foreign country.

Question 15

FCRP 4(k)

Answer 15

Territorial Limits of Effective Service:
Gains PJ for federal court
through service of summons or waiver

Question 16

FCRP 4(k)(1)(a)

Answer 16

Territorial Limits of Effective Service:
allows federal courts to “borrow” state long-arm statutes and thereby extend their jurisdiction to a degree exactly co-extensive with the courts of state in which they sit. (A)”subject to the jurisdiction of a court of general jurisdiction in the state where the district court in located.”
* “general jurisdiction”=subject matter, authorized to hear any type of case
* requires that service of the defendant is authorized by the state long-arm statute, and that it would be constitutional for the state court to assert jurisdiction over the defendant.

Question 17

FRCP 4(k)(1)(b)

Answer 17

Territorial Limits of Effective Service:
who is a party joined under Rule 14 or 19 and is served within a judicial district of the United States and not more than 100 miles from where the summons was issued; or
* “bulge provision”

Question 18

Rule 4(k)(1)(C)

Answer 18

Territorial Limits of Effective Service authorizes service outside of the state pursuant to certain federal statutes
Most of these statutes provide for special venue where the D does have some contacts

Question 19

Rule 4(k)(2)

Answer 19

establishes a federal provision for extraterritorial reach in limited circumstances. It provides that for claims arising under federal law, service is effective to establish jurisdiction if the exercise of jurisdiction is consistent with the Constitution and the defendant is not subject to jurisdiction in any one state of the United States.

Question 20

1391

Answer 20

28 U.S.C 1391= Venue

Question 21

28 U.S.C. §1391(b)(1)

Answer 21

Proper venue in a case against a single defendant is in the judicial district where the defendant resides
Multiple Ds, If all defendants reside in the forum state, then venue (district) where any one of them resides

Question 22

28 U.S.C. §1391(b)(2)

Answer 22

Proper venue is where a “substantial part of the events or omissions giving rise to the claim occurred

Question 23

28 U.S.C. §1391(c)(2).

D

Answer 23

Venue: With respect to a defendant corporation or other artificial entity with the capacity to sue or be sued, 28 U.S.C. §1391(c)(2) deems its “residence” to be “in any judicial district in which such defendant is subject to personal jurisdiction with respect to the civil action in question.” Thus, proper venue for a corporation or other entity, including an unincorporated association — when it is sued as a defendant — is anywhere it is subject to personal jurisdiction.

Question 24

28 U.S.C. §1391(c)(1).

Answer 24

Venue: a natural person is “deemed to reside” in the judicial district in which that person is domiciled.

Question 25

28 U.S.C. §1391(d).

Answer 25

Venue: In multidistrict states, a defendant corporation is deemed subject to personal jurisdiction in a district if its contacts with the district would be sufficient to subject it to jurisdiction if the district were a separate state.

Question 26

28 U.S.C. §1391(c)(2)
P

Answer 26

Venue: When a corporation or artificial entity (with the capacity to sue or be sued) is a plaintiff, 28 U.S.C. §1391(c)(2) limits its “residence” to “the judicial district in which it maintains its principal place of business.”

Question 27

28 U.S.C. §1391(a).

Answer 27

Venue An alien lawfully admitted for permanent residence in the United States is “deemed to reside” in the judicial district in which that person is domiciled, and thus is treated the same as a U.S. citizen.

Question 28

28 U.S.C. §1391(c)(3)

Answer 28

Venue Defendants (whether citizens or aliens) not resident in the United States may be sued in any district, and their joinder in the lawsuit is disregarded for purposes of determining venue as to other defendants.

Question 29

28 U.S.C. 1391(b)(3)

Answer 29

if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

Question 30

28 U.S.C 1335

Answer 30

Interpleader Actions
* interplead actions are when 2+ ppl are fighting over the rights to the same object. The object will be held by a stakeholder who usually does not have a claim to the object but does not want to give it to the wrong person or pay twice
* allows stakeholder to bring all claimants into action, by “interpleading” (plead against eachother) to sort out rights of property

Question 31

28 * U.S.C 1397

Answer 31

Interpleader Venue
Any civil action of interpleader or in the nature of interpleader under section 1335 of this title may be brought in the judicial district in which one or more of the claimants reside.
Basically, this statute ignores the residence of the stakeholder and focuses only on the claimants

Question 32

FCRP 14

Answer 32

Rule 14:Third Party Practice or Impleader
* Impleader is a procedure whereby a defendant may bring into an action a third party who is or may be liable to defendant for all or part of a claim asserted by plaintiff against the defendant.
* there must be both personal and subject matter jurisdiction over the third-party defendant
* used largely in situations of indemnification and contribution when the applicable substantive law confers such a right on a defendant party.
* It allows the original plaintiff to assert any transactionally p. 941related claim against the third-party defendant and permits a third-party defendant to assert any claim against plaintiff that arises out of the transaction or occurrence that is the subject matter of plaintiff’s claims against the third-party plaintiff
Rule 24 Intervention

Question 33

FCRP 24

Answer 33

Intervention

Question 34

Rule 24(a)(1)

Answer 34

Intervention as of Right

(1) when a federal statute confers a right to intervene

Question 35

Rule 24(a)(2)

Answer 35

Intervention as of Right

when any person “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protects its interest, unless existing parties adequately represent that interest.”
(i) Rule 24(a)(2) does require that the intervenor have a legally protected interest; the intervenor must assert its own rights and will not be permitted to join the litigation simply because its economic interests might be affected by the outcome.
(ii) the intervenor must also demonstrate that its interests are not adequately represented by the existing parties.

Question 36

Rule 24(b)

Answer 36

intervention as of permissive intervention

Question 37

Rule 24(b)(1)

Answer 37

intervention as of permissive intervention
* (A) “is given a conditional right to intervene by a federal statute”; or (again, more commonly)
* (B) “has a claim or defense that shares with the main action a common question of law or fact.”

Question 38

1404(a)

Answer 38

Transfer
which provides for transfer from one federal district court to another as an alternative to outright dismissal

(a) 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 division where it might have been brought or to any district or division to which all parties have consented.
(a) Public and private factors to consider
(b) No change of law brings law with it to transferee court
(c) Motion made by defendant
(d) Courts not obligated to transfer to the forum chosen in a forum selection clause
(i) Although the forum selection clause can be significant, the other factors–particularly convenience of witnesses and evidence–may, in a proper case, override

Question 39

1406(a)

Answer 39

transfer
(a) The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.
(1) Applies when the transferor is an improper venue, gives court a choice to transfer in an interest of justice or may dismiss
(a) May result in change of law
(b) Motion comes from either party
(c) factors like convenience of witnesses and the location of evidence, choice of law, where all defendants would be subject to personal jurisdiction would be the most useful factors

Question 40

Van Dusen rule

Answer 40

1404 transfer rule provides that the choice of law rules of the transferor forum apply ( the choice of law go to the transferee court)

Question 41

28 U.S.C. §1407

Answer 41

Transfer whereby actions pending in different districts can be transferred to a single district for “coordinated or consolidated pretrial purposes
(2) Creates the Judicial Panel on Multidistrict Litigation, makes determination as to when multidistrict is appropriate
(3) The transferee forum deals with pretrial issues only, no requirement for transferee court to be where the suit might have been brought (no requirement to be proper PJ or venue)
(4) If the action is to be tried, it gets sent back to the transferor court

Question 42

Forum Non Conveniens

Answer 42

Dismisses case!!
Federal: Only for cases in which the better place for the lawsuit to be is out of the country
State the better alternative is out of the state borders
Dismisses case b/c there is another court that makes more sense/better alternative (center of gravity).

Question 43

Complete Diversity Rule

Answer 43

For Subject Matter jurisdiction under statute 1332 Diversity, all Ps must be diverse from all Ds to be in federal court under diversity citizenship jurisdiction , this comes from the case Strawbridge v. Curtiss

Question 44

28 U.S.C Sec 1332

Answer 44

Diversity of Citizenship jurisdiction for federal court
1. diversity of citizenship
2. amount in controversy over 75,000

Question 45

Affirmative change of Natural Person Domicile for Diversity purposes

Answer 45

1. physical presence in new state and 2. form intent to make permenant home

Question 46

Natural Person citizenship for Diversity purposes

Answer 46

Domicile :where they intend to be for the indefinite future

Question 47

Students, military, prisoners for domicile for diversity of citizenship purposes

Answer 47

may reside for extended periods of time in place other than their domicile, still domiciled in original place

Question 48

Corporate citizenship for diversity purposes
28 U.S.C S1332 (c)

Answer 48

all states of incorporation and 1 state PPB

Question 49

Rule 20

Answer 49

Permissive Joinder
* a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons (and any vessel, cargo or other property subject to admiralty process in rem) may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiff’s according to their respective rights to relief, and against one or more defendants according to their respective liabilities.
* (b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.
*
*

Question 50

PPB for Corporation for Diversity Citizenship

Answer 50

(1) Principal Place of Business
(a) Hertz Corp. v. Friend, 559 U.S. 77 (2010), and interpreted the phrase “principal place of business” in 28 U.S.C. §1332(c)(1) to mean the “nerve center” of the corporation. Managers direct control and coordinate corporate activities

Question 51

Unincorporated Associations citizenship for diversity

Answer 51

use citizenship of all of its members

Question 52

28 U.S.C 1331

Answer 52

Subject Matter Jurisdiction in Federal court
1) Arising under Federal law (constitution)
a) “arising under this Constitution, the laws of these United States, and Treaties made, or which shall be made, under their Authority.”

Question 53

Gibbs Supplmental jurisdiction

Answer 53

have a smj anchor claim, additional claims with no SMJ can use supplmental juridiction 1367 all claims arising out of common nucleus of operative facts” (CNOF)

Question 54

1367

Answer 54

Supplmental Jurisdiction

Question 55

1367(b)

Answer 55

1367(b) Supplemental Jurisdiction for anchors that are soley diversity of citizenship
* In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332.

Question 56

1367(a)

Answer 56

Supplmental Jursidiction for Federal ? or Diversity Anchors to gain SMJ over additional claims
Gibbs Rule of CNOF

1367(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction 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 of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

Question 57

Glitch of 1367(b)?

Answer 57

Does limit federal diversity anchor with additional claims made by Plaintiffs that were joined under rule 20 (permissive joinder) or rule 23

Question 58

1367(c)

Answer 58

Supplmental Jursidicition Exceptions
The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—
o (1) the claim raises a novel or complex issue of State law,
o (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
o (3) the district court has dismissed all claims over which it has original jurisdiction, or
o (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
o (d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.
o (e) As used in this section, the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

Question 59

1332

Answer 59

1)citizens of different States;
P NY v. D NJ

(2)citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;

(3)citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

(4)a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

Canadian Gov P v. D NY

Question 60

Corporations:
Citizenship for Diversity purposes
Citizenship for Venue purposes

Answer 60

1. Diversity = every state incorp and 1 state ppb
2. wherever PJ over it and if mult district state each district int he state is treated like a separate state for contacts purposes

Question 61

FRCP 18

Answer 61

Permissive Claim Joinder

Joinder of Claims

(a) In General.

A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.

Question 62

Rule 42

Answer 62

Consolidation; Separate Trials

(b) Separate Trials.

For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.

Question 63

RULE 13(h)

Answer 63

RULE 13(h) Joining additional parties.

Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.

Question 64

Rule 20

Answer 64

Permissive Joinder of Parties

Question 65

Rule 20(a)

Answer 65

Permissive Joinder of Parties

a) Persons Who May Join or Be Joined.

(1) Plaintiffs.

Persons may join in one action as plaintiffs if:

(A) they 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

(B) any question of law or fact common to all plaintiffs will arise in the action.

Question 66

Rule 20(a)(2)

Answer 66

Permissive Joinder of Parties
2) Defendants.

Persons – as well as a vessel, cargo, or other property subject to admiralty process in rem – may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

Question 67

Rule 20(b)

Answer 67

Permissive Joinder
(b) Protective Measures.

The court may issue orders –including an order for separate trials – to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party.

Question 68

Rule 20(a)(3)

Answer 68

Permissive Joinder
(3) Extent of Relief.

Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities.

Question 69

RULE 13(b) .

Answer 69

Permissive Counterclaims.

A pleading may state as a counterclaim against an opposing party any claim that is not compulsory

Question 70

Rule 13(g)

Answer 70

Cross Claims
RULE 13(g) Crossclaim against co-party.

A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant.

Question 71

Rule 14

Answer 71

Rule 14. Third-Party Practice/Impleader (indemnity)
(a) When a Defending Party May Bring in a Third Party.
* (1) Timing of the Summons and Complaint.
* A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court’s leave if it files the third-party complaint more than 14 days after serving its original answer.
* (2) Third-Party Defendant’s Claims and Defenses.
* The person served with the summons and third-party complaint ” the third-party defendant”:
* (A) must assert any defense against the thirdparty plaintiff’s claim under Rule 12;
* (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g);
* (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff’s claim; and
* (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. (This is owens)
* (3) Plaintiff’s Claims Against a Third-Party Defendant.
* The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g).
* (4) Motion to Strike, Sever, or Try Separately.
* Any party may move to strike the third-party claim, to sever it, or to try it separately.
* (5) Third-Party Defendant’s Claim Against a Nonparty.
* A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it.
* (6) Third-Party Complaint In Rem.
* If it is within the admiralty or maritime jurisdiction, a thirdparty complaint may be in rem. In that event, a reference in this rule to the “summons” includes the warrant of arrest, and a reference to the defendant or third-party plaintiff includes, when appropriate, a person who asserts a right under Supplemental Rule C(6)(a)(i) in the property arrested.
* (b) When a Plaintiff May Bring in a Third Party.
* When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so

Question 72

Rule 19

Answer 72

Rule 19. Required Joinder of Parties

(a) Persons Required to Be Joined if Feasible.

(1) Required Party.

A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:

(A) in that person’s absence, the court cannot accord complete relief among existing parties; or

(B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:

(i) as a practical matter impair or impede the person’s ability to protect the interest; or

(ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

(2) Joinder by Court Order.

If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff.

(3) Venue.

If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party.

(b) When Joinder Is Not Feasible.

If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include:

(1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;

(2) the extent to which any prejudice could be lessened or avoided by:

(A) protective provisions in the judgment;

(B) shaping the relief; or

(C) other measures;

(3) whether a judgment rendered in the person’s absence would be adequate; and

(4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

(c) Pleading the Reasons for Nonjoinder.

When asserting a claim for relief, a party must state:

(1) the name, if known, of any person who is required to be joined if feasible but is not joined; and

(2) the reasons for not joining that person.

(d) Exception for Class Actions.

This rule is subject to Rule 23.

Question 73

1441

Answer 73

Federal Removal

Question 74

1441(b)

Answer 74

Removal exception , D that is a citizen of the forum cannot remove to federal court

Question 75

What is Snap Removal?

Answer 75

under 1441, Snap Removal: If a notice of removal based on diversity is filed prior to a forum defendant being properly joined and served, then the plaintiff will not be able to remand the case
o i.e P Nj v. D1 NY, D2 NJ
 D1 NY removes to fed court after they are served notice, but D2 hasn’t been served yet>goes to fed court, P cant remand

Question 76

1446

Answer 76

Procedure of removal
28 U.S.C. § 1446(a) states that a defendant who wants to remove a civil action must file a notice of removal in the proper federal district court. The notice must be signed pursuant to Rule 11 of the Federal Rules of Civil Procedure (FRCP) and include “a short and plain statement of the grounds for removal.” Additionally, copies of “all process, pleadings, and orders” served upon the defendant or defendants in the state court action must be attached to the notice.

Question 77

28 U.S.C. § 1446(d)

Answer 77

Removal: after filing a notice of removal the defendant must promptly give written notice of the removal “to all adverse parties.” The defendant must also promptly file a copy of the removal notice with the clerk of the state court from which the action was removed.

Question 78

When is a case removeable to fed court under 1446?

Answer 78

In general, if a case is removable as filed, a defendant has 30 days after service of process to file a notice of removal in federal court. 28 U.S.C. § 1446(b)(1). If the case is removable as filed and the defendant does not remove within 30 days, the defendant waives his right to remove

Voluntary v Involuntary rule
1. If diversity case> 30 days from when becomes removal to remove, except in diversity in no event can your remove after 1 yr after filed in state court (not removable)
a. So even if it becomes removable a year and 1 day after filing in state court cannot remove because 1yr window
Exception of bad faith
* Ex. Say on day 366 P dismisses claim against nondiverse party, if court thinks that is strategic to wait out the 1yr window the court can extend the window
* If the case becomes removable by anything other than the Ps choice, say D moves to dismiss the case against the nondiverse party, the case isn’t removable because P did not choose

Question 79

1447(c)

Answer 79

Motion to Remand

Question 80

FRCP 12(h)(3)

Answer 80

3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

o court has a responsibility on its own to ensure that it has jurisdiction over the subject matter of the action. (SUA Sponte)

Question 81

Collateral SMJ attack

Answer 81

o The Restatement (Second) of Judgments §12 (1982)
 When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court’s subject matter jurisdiction in subsequent litigation except if:
 (1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or
 (2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or
 (3)The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.

Question 82

Rule 11(a)-(b)

Answer 82

Signing of Pleadings, Motions, and Other Papers; Representations to Court; Sanctions

(a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, —

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Question 83

Rule 11(c)

Answer 83

Sanctions
(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court’s Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to show cause why it has not violated subdivision (b) with respect thereto.

(2) Nature of Sanction; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation.

(A) Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2).

(B) Monetary sanctions may not be awarded on the court’s initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

(d) Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37

Question 84

Rule 8(a)

Answer 84

The Complaint
Rule 8(a), which sets forth the required elements of a complaint.
3 Requirements:
* A statement of subject matter jurisdiction
* A “short and plain statement: of the claim
* A demand for relief

Question 85

Twiqbal

Answer 85

To survive a Defenses 12(b)(6) motion for failure to state a claim the P must state facts supporting a plausible claim, under rule 8(a)(2)
 Defense can make a 12(b)(6) motion for failure to state a claim if the pleading does not satisfy with enough factual detail to show that the pleader is entitled to relief
 3 rules:
 1. Court ignores conclusions of law and focus only on allegations of fact
 2. Facts must support a plausible claim not just possible (reasonable)
 3. To determine plausibility judge using own experience and common sense

Question 86

Rule 8

Answer 86

CLAIM FOR RELIEF. A pleading that states a claim for relief must contain:
* (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
* (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
* (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
* What is a plain statement of the claim to ensure the P is entitled of relief ?

Question 87

Rule 12 (e)

Answer 87

Rule 12 (e) Motion for a More definite Statement
* A party responding to a pleading has the option of requesting a “more definite statement” in lieu of responding to the pleading
o Only applies to a pleading in which a responsive pleading is allowed, normally only a complaint, counterclaim, crossclaim
* Is appropriate only where the pleading to which the moving party is responding “is so vague or ambiguous” that the party cannot reasonably prepare a response
* Since Rule 8(b)(5) allows a responding party to plead that it “lacks knowledge or information sufficient to form a belief about the truth of an allegation,” the Rule 12(e) standard of being unable to prepare a response is very difficult to satisfy.
* The court has total discretion on whether to grant a Rule 12(e) motion, and such motions have been historically disfavored because they delay the litigation.

Question 88

12(f)

Answer 88

Rule 12(f): The Motion to Strike
* Primary vehicle for a P or other claimant to an inadequate defense
* Of course, if the elimination of that defense from the litigation would result in a judgment for plaintiff, the plaintiff can also move for a judgment on the pleadings under Rule 12(c).
* In theory, Rule 12(f) is also available to either party to “strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.”
* However, courts are reluctant to strike on this basis, particularly because the pleadings are not typically shown to the jury, and thus the inclusion of objectionable material does not typically prejudice the objecting party.
* The motion to strike is not available to defendants who simply want to challenge the sufficiency of a claim against them; a motion to dismiss under 12(b)(6) or 12(c) would be the appropriate remedy.
* A motion to strike must be made within 21 days of when the moving party has been served with the offending pleading.
* However, the court has the authority under Rule 12(f)(1) to strike on its own initiative at any time.

Question 89

Rule 8(b)

Answer 89

Rule 8(b) Defendant must respond to complaint: admit, deny, or do not know/lack sufficient evidence to admit or deny (8(b)(5))
Failure to deny constitutes an admission

Question 90

Rule 26

Answer 90

Discovery

Question 91

• 26(g)

Answer 91

Discovery certification of documents rule, like rule 11 certification requirement (not for improper purpose etc(

Question 92

• 26(a)

Answer 92

Required Disclosure
o Duty to give information without being asked
o 26(a)(1) required initial disclosures, early in case, turn over 14 days before 26(f) conference
 Must identify ppl w/ discoverable info that you may use to support your case
 Must give copies or descriptions of things you may use to support your case
 Don’t have to turn over something that will hurt your case, you don’t have to give it in intial required disclosures
 P must give Calculations of damages
 D must disclose insurance

Question 93

Rule Rule 30

Answer 93

Deposition
Deponent ( person testifying) testifies orally under oath, typically recorded and transcribed, not in a court room usually in lawyers office , answering questions from the lawyers
o Pay take a deposition of a party or non-party
 Rule 45 Subpoena (court order requiring they show up) the non-party or they do not have to show up

Question 94

Rule 45

Answer 94

Subpeona, subpeona of non-parties to required to take depositions

Question 95

Rule 33

Answer 95

interrogatories Rule 33
o Written questions, answered in writing under oath
o 30 days to answer them
o Can be sent only to parties, not non-parties

Question 96

Rule 34

Answer 96

Request to Produce Rule 34
o Written request for access to documents, or electronic documents or tangible things
o 34(c) may use this rule to get info from non-parties but need to subpeona

Question 97

Rule 26(c)

Answer 97

Person can go under rule 26(c) to get a protective order and under another rule to quash, only way to head off being depoed

Question 98

Rule 35

Answer 98

Mental and Physical Exams Rule 35
o Must get a court order, can only for one of the parties, or someone in the parties custody or legal control (a child)
o Must show that the medical condition is in controversy (i.e a personal injury case) and that the request is in good cause
o If P has alleged any physical or mental damage, usually enough to put that condition in controversy and submit to an exam
o The medical expert is picked by the person requesting the exam, most courts don’t allow the parties counsel to be there, and are not able to get a video or audio tape of the exam

Question 99

Rule 36

Answer 99

Request for Admissions Rule 36
o Admit or deny any discoverable matter
o Only for parties
o Yes or no questions to any aspect of the case, including legal questions
o Hard to say I don’t know to them since typically at the end of discovery
o If you admit it you can no longer contest it, denying makes the other side prove or disprove
o If you don’t respond considered admitted

Question 100

• Work Product Priveledge

Answer 100

• Work Product (26(b)(3))
  o Work product if it is prepared in anticipation of litigation
  o Must object to it
  o If resonably anticipate you will be sued or there will be investigation and take steps to prepare for that, protected
   i.e hiring an investigator to investigate case for litigation and they write a memo with findings, memo is protected
   can override if show
• 1. substantial need, and
• 2. that the information is not otherwise easily available
     o I.e witness testimony where witness moves out of country or dies
• Mental impressions, conclusions, opinions and legal theories always protected cannot get them either way
   Can be generated by the party herself or any rep of the party

Question 101

Rule 37

Answer 101

• Rule 37 Motion to compel: court order to compel a party to answer or provide information* Rule 37 Motion to compel: court order to compel a party to answer or provide information
  o If the party does not honor a motion to compel, court can direct that the matters under the order can be taken as established (Rule 37 (b)(2)), dismiss the action, treating as contempt
   i.e personal jurisdiction

Sanctions for partially or completing not providing information

Question 102

Rule 26(d)

Answer 102

Discovery Sanctions:

Question 103

Name all the functions of FRCP 4(a)-(K)

Answer 103

2. FRCP 4(c) Who may Serve
3. FRCP 4(m) Timing of Service
4. FRCP 4(l) Proof of Service
5. FRCP 4(a)(1) Contents of Service
6. FRCP 4(e) Method of Service on Individuals
7. FRCP 4(h) Method of Service on Business Entities
8. FRCP 4(f), (h)(2) Foreign Service
9. FRCP 4(d) Waiver of Service
   a. FRCP 4(d)(1) Procedure of Waiver
   b. FRCP 4(d)(3)-(5) Consequences of Waiving Service
10. FRCP 4(d)(2) Consequences of failure to waive service
11. FRCP 4(K)(1)(A) Geographic limitation

Question 104

Jones v. Flowers

Answer 104

meaning that you are promptly made aware that the primary method of notice is failing under the circumstances, must use an alternative method of service

Question 105

Mullane

Answer 105

a. Mullane: Notice must be reasonably calculated under the circumstances
Publication is the absolute last resort if nothing is known

Question 106

 What does the complaint contain?

Answer 106

o FRCP 8(a): General Rules of Pleading:
o (1) A short and plain statement of the grounds for the court’s jurisdiction
- Helps assure the court that it has SMJ over the case.
- This is required. Often done in 1 or 2 sentences.
o (2) A short and plain statement of the claim showing that the pleader is entitled to relief; and
- Statement must be sufficient to give D notice of claim and its basis
- Must be clear enough to enable a response from D
o (3) A demand for the relief sought, which may include relief in the alternative or different types of relief
- Requires P to state what it is asking the court to do for him or what it wants it to do to D.

Question 107

 Insufficiently plead complaint may be struck under

Answer 107

FRCP 12(b)(6) motion to dismiss

Question 108

 Heightened Pleading Requirements
o FRCP 9(b) and FRCP 9(g):

Answer 108

 Heightened Pleading Requirements
o FRCP 9(b) and FRCP 9(g):
- both so-called heightened pleading requirements where you have to go beyond the detail required in Iqbal. Must give the particulars if you are trying to allege fraud, mistake, or special damages. And the most obvious one or tested one is fraud. Those allegations of fraud must be stated with particularity, with detail.
- Example would be the Citibank case

Question 109

 How can the D respond to a complaint?

Answer 109

o There are 2 main ways to respond

• (1): Pre-Answer Motion (Rule 12 motions)
  -(2) Answer

Question 110

Parties may obtain discovery regarding any nonprivileged matter that is ____ and ____

Answer 110

relevant to any party’s claim or defense and proportional to the needs of the case

Question 111

For discovery to be proportional to the needs of the case, what are the factors considered

Answer 111

considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Question 112

Hickman v. Taylor

Answer 112

immunity from discovery for attorney work product prepared in anticipation of litigation in the case of Hickman v. Taylor, 329 U.S. 495 (1947) for intangible materials

Question 113

Work Product Privledge the rule and its 2 requirements

Answer 113

Rule 26(b)(3)
o Work product if it is prepared in anticipation of litigation
o Prepared by an agent or representative of one of the parties

Question 114

1447(c)

Answer 114

Motion to remand

Question 115

. Fed R. Civ. P. 50(a).

Answer 115

Judgment as a matter of law
We may grant a JMOL only where upon reviewing the entire record, we find that there is no legally sufficient evidentiary basis for a reasonable jury to find for the nonmoving party on an issue. Fed R. Civ. P. 50(a).

Question 116

Rule 59

Answer 116

Motion for a new trial not withstanding the jury verdict

Question 117

Rule 60

Answer 117

Relief from Judgment or Order , gives opportunity to go back to the issue and ask to undue judgment it is not a collateral attack
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

Question 118

Rule 49

Answer 118

• Form of Verdict Rule 49
  o General: most common, jury decides who wins and who loses and how much is owed
  o Special: Interrogatories used for jury to answer, then judge applies law to those answers,
  o General Verdict with written Qs Jury uses questions and then gives verdict. if the jury’s answer /verdict to liability does not match with the other questions the court will ask them to reconsider

Question 119

Differences b/w issue preclusion and claim preclusion

Answer 119

Claim preclusion bars an entire claim; issue preclusion establishes a discrete finding.
Claim preclusion bars relitigation of claims that should have been litigated as well as claims that were actually litigated; issue preclusion only precludes relitigation of issues that were actually contested and necessarily decided.
Claim preclusion bars only the assertion of claims in the second proceeding; issue preclusion may prevent relitigation of issues germane to both claims and defenses.
Claim preclusion applies to both the winning and losing party in the prior proceeding; issue preclusion may only be asserted against the losing party, and only on an issue determined adversely to that party’s position.
Claim preclusion is set up only by a judgment on the merits; issue preclusion is set up by any valid judgment.
Claim preclusion can only be asserted by a party to the earlier proceeding, or someone in privity with that party; issue preclusion, in most jurisdictions may often be asserted by someone who was not a party, or in privity with a party, to the earlier proceeding.