Civ Pro

Question 1

For purposes of diversity jurisdiction, the state citizenship of an individual is determined by:

Answer 1

The state in which the person has his permanent home and to which he intends to return (Domicile) - a person can only have 1 domicile

Question 2

For purposes of diversity jurisdiction, the state citizenship of a corporation is determined by:

Answer 2

Every state in which it is incorporated and the one state in which it has its PPB

Question 3

Choice of Law - Diversity

Answer 3

In a diversity case, the federal court applies the law that would be applied by the courts of the state in which the federal court is located. This includes the state’s choice of law rules

Question 4

In order to satisfy federal question jurisdiction, Plaintiff must:

Answer 4

In order to satisfy federal question jurisdiction, the federal question must appear as part of the plaintiff’s cause of action as set out in a well-pleaded complaint

FQJ is available when a plaintiff alleges a claim arising under federal law

Question 5

Supplemental Jurisdiction - FQ Case Dismissed

Answer 5

When a claim is in federal court under FQ jurisdiction, and the plaintiff has a state law claim against the defendant that cannot invoke diversity jurisdiction, the federal court has discretion to exercise supplemental jurisdiction over the state law claim if the federal and state claims derive from a common nucleus of operative fact and are such that plaintiff would ordinarily be expected to try them all in one judicial proceeding. The court may continue to exercise supplemental jurisdiction over the state claim even though the federal claim is dismissed on the merits. However, the state claim should probably also be dismissed (without prejudice) if the federal claim is dismissed before trial.

Question 6

What Cases may be Removed?

Answer 6

The defendant can remove a case that meets the requirements for diversity of citizenship or FQ

2 limitations on removing a case based solely on DIVERSITY:
(1) the case should not be removed if any defendant is a citizen of the forum state, and
(2) the case should not be removed more than 1 year after the case was filed in state court

Question 7

Cases in which federal courts have exclusive jurisdiction

Answer 7

(1) bankruptcy cases
(2) patent and copyright cases
(3) antitrust cases
(4) some federal securities and antitrust claims

Question 8

Initial Required Disclosures

Answer 8

Unless a different time is set by court order or stipulation, within 14 days of the 26(f) conference each party must provide the names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to SUPPORT its claims or defenses (unless needed solely for impeachment)

Other disclosures that must be made at this time include:
(1) copies or descriptions of documents, ESI, and tangible things that are in the disclosing party’s possession or control and that the disclosing party may use to SUPPORT its claims or defenses, unless solely used for impeachment;
(2) computation of damages claimed by the disclosing party and copies of materials upon which the computation is based; and
(3) copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered

Question 9

During discovery, electronically stored information (ESI) need not be produced if the responding party identifies it as:

(Request to Produce)

Answer 9

Not reasonably accessible because of undue burden or cost

Question 10

Discoverability of Work Product

Answer 10

Generally, the work product (document or tangible thing) made by a party or representative of a party is not discoverable if made in anticipation of litigation, unless the party requesting discovery can show substantial need and undue hardship if disclosure is not ordered

Question 11

Scope of Discovery

Answer 11

Parties may obtain discovery of any NONPRIVILEGED matter that is RELEVANT to any party’s claim or defense and PROPORTIONAL to the needs of the case (and was not prepared in anticipation of litigation - consulting experts /WP)

Question 12

Discovery - NonTestifying Experts v. Testifying Experts

Answer 12

The opinion of an expert consulted in anticipation of litigation is discoverable if a party intends to call the expert as a trial witness

Conversely, the opinion of an expert who is retained in anticipation of litigation but who is not expected to testify at trial (i.e., consulting expert) is discoverable only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means

*An expert is a person with knowledge, skill, experience, training, or education in a particular field

Question 13

Interrogatories - Business Records

Answer 13

In a situation where desired information may be ascertained from the business records of the party on whom the interrogatory was served, and where the burden of finding the information is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to provide the serving party reasonable opportunity to examine the records.

Question 14

For venue purposes, a business entity defendant is deemed to reside in:

Answer 14

Any judicial district in which the defendant is subject to the court’s personal jurisdiction with respect to the action in question

Question 15

When a transfer is based on the ground that venue was improper, which law applies in the transferee court?

Answer 15

A transfer on the ground that the original choice of venue was improper generally results in a change of the law applicable under the Erie doctrine; i.e., the law of the state in which the transferee court sits not applies

*This is in contrast to a transfer on convenience grounds, in which case the law of the transferor court continues to apply

Question 16

Forum Non Conveniens

Answer 16

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

Question 17

How to Get a Default Judgment

Answer 17

The CLERK of the court can enter a default judgment if:
(1) the defendant has made no response at all (that is, she has not appeared);
(2) the claim itself is for a sum certain in money;
(3) the plaintiff gives an affidavit of the sum owed; and
(4) the defendant is not a minor or incompetent

*If any of these is not true, the plaintiff must apply to the COURT for the default judgment

Question 18

Temporary Restraining Order

Answer 18

A TRO is issued to preserve the status quo until a hearing on a preliminary injunction can be held. A TRO may be issued “ex parte” which means that a court has done something without giving notice to the other party. The court will issue a TRO ex parte only if:
(1) the applicant files a paper oath clearly showing that if the TRO is not issued, she will suffer immediate and irreparable harm if she must wait until the other side is heard; and
(2) the applicant’s lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant’s lawyer (or why such notice should not be required in this case)

If the court issues the TRO, the applicant must post a bond to cover the other side’s costs and damages caused if it turns out the restraint is wrongful. If the court issues the TRO, the order must be served on the defendant as soon as possible. A ruling granting or denying a TRO ordinarily may not immediately be appealed

Question 19

When is an action deemed commenced for statute of limitations purposes?

Answer 19

Federal Question Cases
- when the complaint is filed with the court

Diversity Cases
- the state rule for determining when the action is commenced applies. (Thus, depending on the state rule, an action may be commenced when process is served on the opposing party)

Question 20

When can a party file a motion for a new trial?

Answer 20

No later than 28 days after judgment was entered

Question 21

When can a party file a motion for JMOL?

Answer 21

A party can move for JMOL after the other side has been heard at trial on the issue - BUT must move before submission of the case to the jury

For example, say the P presents her evidence at trial and rests. At that point, the D may move for JMOL, as the P has been heard at trial. The P may not move until after the D presents his evidence

Question 22

What can a party file a motion for RJMOL?

Answer 22

Must be filed no later than 28 days after entry of judgment, and the parking making the motion must have moved for JMOL at some time during the trial.

Question 23

How is Process Served?

Answer 23

Personal Service
- process is given to the D personally anywhere

Substituted Service - can be done only:
(1) at the D’s usual place of abode;
(2) with someone of suitable age and discretion;
(3) who resides there

Service on Agent
- process can be delivered to the D’s agent - this is ok if receiving service is in scope of agency

In addition, methods for serving process that are permitted by the law of the state (1) where the federal court sits or (2) where service is made are permitted

Question 24

When may a defending party implead a non party?

Answer 24

A defending party can implead a nonparty if the nonparty is or may be liable to the party for any part of a judgment that the plaintiff may recover against it.

Question 25

May a party immediately appeal a denial or granting of a preliminary injunction?

Answer 25

Yes, an order granting or denying a preliminary injunction may be appealed as of right

*Different for TRO - ordinarily may not be immediately appealed

Question 26

In a diversity case, federal trial courts are required to apply a ____ when considering a motion for a new trial based on the excessiveness of the verdict

Answer 26

State law standard

Question 27

To receive a jury trial, a party generally must:

Answer 27

File a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue. Otherwise, the right to a jury trial generally is deemed waived

*Note, however, that the Supreme Court has held that, in the absence of compelling reasons to the contrary, a court should grant relief from the waiver if the issue is normally tried by a jury

Question 28

Variance

Answer 28

Variance comes up when the evidence at trial does not match what was pleaded. If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence.

*An issue not raised by the pleadings is treated as if raised in the pleadings if it is tried by the parties’ express or implied consent. In such a case, a party may move AT ANY TIME, even after judgment, to amend the pleadings to conform them to the evidence and to raise the unpleaded issue.

Question 29

Mixed Suits of Law and Equity

Answer 29

If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury’s finding on fact issues will bind the court in the equitable claim

*BUT, if a fact (for example, whether the D trespassed on the P’s property) underlies both a claim for damages and a claim for an injunction, the JURY will decide that fact

Question 30

Review under Interlocutory Appeals Act

Answer 30

The interlocutory Appeals Act allows appeal of a nonfinal order if:
(1) the district judge certifies that it involves a controlling issue of law;
(2) as to which there is substantial ground for difference of opinion; and
(3) the court of appeals agrees to hear it (at least 2 appellate court judges agree)

Question 31

Interlocutory Appeals of Injunctions as of Right

Answer 31

Orders granting, modifying, or refusing preliminary or permanent injunctions are reviewable as of right despite the fact that the order may not be final

*This type of review does NOT include TROs - BUT:
- if the TRO is renewed beyond 28 days, it becomes a preliminary injunctions that may be appealed (a court cannot avoid review and the procedural requirements of a preliminary injunction by extending a TRO)

Question 32

As a general rule, a notice of appeal must be filed with the district court within ____ days from the entry of judgment

Answer 32

30 days

• a party has 30 days from the entry of judgment to file a notice of appeal with the district court
  *the filing period is extended to 60 days when the US is a party to the action

Question 33

When an action involves multiple claims or parties, and a judgment is entered that disposes of only some of the parties or claims, the judgment:

Answer 33

Is deemed a final, immediately appealable judgment only to the extent that the court makes an express determination that there is no just reason for delay

Unless the trial judge makes that express determination, its order determining the merits of determining the merits of fewer than all of the claims is not a final judgment and its not appealable

Question 34

standards of review - fill in

Question 35

Relationship between removal and venue

Answer 35

In a properly removed case, venue is proper in the federal district court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state.

Question 36

Claim Preclusion (merger vs. bar)

Answer 36

Although both merger and and bar are used to indicate that claim preclusion (res judicata) is in effect, where the claimant won the earlier lawsuit, the claim is said to be MERGED into the prior judgment.

Where the defendant won the earlier lawsuit, the claim is said to be BARRED by the prior judgment

Question 37

Request to Produce

Answer 37

A request to produce asks a party to make available for review and copying documents or things, including ESI, or to permit entry on designated property to inspect, measure, etc.
-**ESI MUST be produced in the FORM that the requesting party specifies, but the responding party may object
- The disclosing party must respond to the request in writing within 30 days of service, stating that the material will be produced or asserting objections

***The party from whom documents are requested may not place the burden of identifying those documents on the party that has requested the documents

*Only parties can be sent a request to produce, but a nonparty can be served with a subpoena to require her to disclose the same types of info

Question 38

Protective Order (ESI) - FRCP 26(b)(2)(B)

Answer 38

A party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of UNDUE BURDEN or COST
- the court will then decide if the information sought should be produced anyway by evaluating if the disclosure is PROPORTIONAL to the needs of the case

Question 39

Voluntary Dismissal - Dismissal without court permission

Answer 39

A plaintiff may of right (without court order) dismiss an action one time without prejudice before the defendant serves an answer or motion for summary judgment. The parties may also stipulate to a voluntary dismissal without court order (for example, if the case is settled, a stipulated dismissal will be filed)

*If the defendant has answered or filed a motion for summary judgment or there was a previous dismissal, the plaintiff must filed a motion for voluntary dismissal by leave of court, and the court has the discretion to grant dismissal on such terms and conditions as the court deems proper

Question 40

26(f) Conference - Detailed Discovery Plan

Answer 40

Unless the court order says otherwise, at least 21 days before the court’s scheduling order, the parties “meet and confer” to discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information. They must present to the court a DETAILED DISCOVERY PLAN no later than 14 days after the Rule 26(f) conference

Contents of Discovery Plan
- the plan must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (for example, deleted files), etc.

Question 41

Pretrial Conference Order (roadmap of what happens at trial)

Answer 41

After a pretrial conference, the judge must enter a pretrial corder reciting the action taken in the conference. This pretrial order is binding during the rest of the litigation unless the court modifies it. A court will modify a pretrial order only to “prevent manifest injustice”

Question 42

Erie

Answer 42

When determining whether to do an Erie analysis, the threshold question is whether there is a controlling FRCP or federal statute. If any federal law controls (is “on point”), there is no Erie problem. However, in the absence of a controlling federal statute or Rule, the question becomes whether the issue at hand is substantive or procedural.

In Erie, the US Supreme Court held that a federal court sitting in diversity must apply state SUBSTANTIVE law of the state in which the federal court sits on all SUBSTANTIVE issues in a case. This includes the state’s conflict of law rules. For all PROCEDURAL issues, a federal court sitting in diversity must apply federal PROCEDURAL rules (FRCP)

In some instances, whether an issue is substantive or procedural is considered well-established. For example, the US Supreme Court has established that the following issues are clearly substantive: (1) elements of a claim or defense; (2) choice of law rules; (3) statutes of limitations; (4) rules for tolling statutes of limitations; and (5) the standard to grant a new trial because the jury’s award was excessive or inadequate

Question 43

New Issues on Appeal

Answer 43

The general rule is that new issues may not be raised for the first time on appeal

Exception: (might be others)
- pure matters of law may be considered on appeal, even if not properly presented in the trial court when all the necessary facts are complete in the record. The appellate court may substitute its judgment in a pure interpretation of the law for the judgment of the trial court. This includes the applicability of a particular statute in a given case
(appellate court may exercise discretion and make exceptions, including with pure questions of law)

Question 44

Amendment after Statute of Limitations has run (Relation Back)

Answer 44

To Join a Claim Not Originally Asserted
- an amended pleading relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleading

To Substitute a New Defendant
- an amended pleading will relate back if:
(1) the amendment concerns the same conduct, transaction, or occurrence as the original pleading;
(2) the defendant had such knowledge of the case such that she will be able to avoid prejudice; and
(3) the defendant knew or should have known that, but for a mistake, she would have been named originally

*The knowledge referenced in the last 2 points must have come within the period for service of process (90 days after the filing of the complaint)

*Applies when the plaintiff sued the wrong defendant first, but the right defendant knew about it

Question 45

Aggregation of Claims

Answer 45

Only works when plaintiffs are trying to enforce a single right in which they have a common undivided interest

Question 46

Supplemental Jurisdiction Shorthand

Answer 46

A party may use supplemental jurisdiction to have his claim heard in federal court if the claim meets the “common nucleus of operative fact test” UNLESS the claim:
(1) is asserted by a plaintiff,
(2) in a diversity case,
(3) and is asserted against a citizen of the same state as the plaintiff

Question 47

TPD and Plaintiff asserting claims (after Impleader)

Answer 47

After the TPD is joined, the plaintiff MAY assert claim(s) against the TPD, and the TPD MAY assert claim(s) against the plaintiff, that arise out of the same T/O as the underlying case (SMJ is required)

These are NEVER compulsory - the ONLY compulsory claim is the compulsory counterclaim

Question 48

When impleader is unavailable

Answer 48

A defendant cannot assert a third-party claim against another party, unless they are seeking to obtain recovery, and that recovery must be for the defendant’s OWN liability to the original plaintiff

*If the defendant is denying liability altogether and is NOT trying to recover from the TPD any portion of the defendant’s own liability to the plaintiff, defendant CANNOT assert a third-party claim

Question 49

Peremptory Challengs

Answer 49

Allowed as long as they are not based on race, national origin, religion, or gender (these would be equal protection violations)

Question 50

Issue Preclusion

Answer 50

In a previous suit between a plaintiff and defendant (or their proxies), any judgments that occurred binds them in subsequent actions on different causes of action with respect to issues ACTUALLY LITIGATED and ESSENTIAL to the judgment of the first action
- thus, if a default or consent judgment is entered in the first action, generally that will not have preclusive effect (issue preclusion will not apply)

Question 51

Necessary Parties

Answer 51

After the case is filed, the court might force a non-party (absentee) to join case, usually on motion by defendant.

Necessary:
(1) Without the absentee, the court cannot accord complete relief among the existing parties; OR
(2) absentee’s interest may be harmed if not joined; OR
(3) absentee claims an interest that subjects a party to risk of multiple litigations

If absentee is necessary, can absentee be joined? - Joinder is “feasible” if:
(1) PJ over absentee; and
(2) SMJ over claim by or against the absentee

Question 52

Intervention (as a matter of right v. permissive)- Rule 24

Answer 52

A nonparty may intervene in an action as a matter of right in two situations - first a nonparty may intervene when it has an unconditional right to do so by a federal statute. Second, a nonparty may intervene if:
(1) it has an interest in the property or transaction that is the subject matter of the action;
(2) the disposition or resolution of the action may as a practical matter impair the nonparty’s ability to protect its interest; and
(3) the nonparty’s interest is not adequately protected by an existing party in the action

Permissive Intervention
- If the absentee’s claim or defense and the pending case have at least one common question of law or fact, intervention would be permissive and discretionary with the court
- Permissive intervention is usually allowed unless it would cause delay or prejudice to someone

Question 53

Transfer of Venue - Transfer from a Proper Venue

Answer 53

If the original district is a proper venue, that court can order transfer based on CONVENIENCE of parties and witnesses and in the INTERESTS of JUSTICE
- Burden is on person seeking transfer (usually defendant) - court will consider both public and private factors showing that another court is the center of gravity for the case:
(1) Public: what law applies, what community should be burdened with jury service, the desire to keep a local controversy in a local court, etc.
(2) Private: court considers convenience (for example, it will look to where defendants and evidence are found)

Effect of Choice of Law (only matters for DIVERSITY cases)
- transferee court must apply the law of the transferor court (unless transfer is to give effect to a valid forum selection clause)

Question 54

Transfer of Venue - Transfer from an Improper Venue

Answer 54

If the original district is an improper venue, the court may transfer in the INTERESTS of JUSTICE, or DISMISS
- usually the court will transfer if possible (for example, a federal district court can easily transfer the case to another federal district court)

Effect of Choice of Law (only matters for DIVERSITY cases)
- transferee court must apply its own choice of law rules
- P does not benefit by filing in an improper forum

Question 55

Deposition of an Organization

Answer 55

When giving notice of a deposition to an organization, a party may name the organization and state with reasonable particularity the matters to be covered. The organization and the requesting party must then confer about the topics to be covered in the deposition, and the organization will designate individuals to testify about those topics on its behalf

Question 56

RJMOL and Motion for New Trial at same time

Answer 56

In federal practice, a motion for judgement as a matter of law may be combined with one for a new trial under FRCP 50(b). If the judge grants the motion for judgment as a matter of law, the judge MUST also rule CONDITIONALLY on the new trial trial motion. Later, if the judgment as a matter of law is reversed on appeal, the new trial will then occur automatically unless the appeals court specifies otherwise

Question 57

Summary Judgment Rule Statement

Answer 57

In general, summary judgment must be granted if it appears from the pleadings, affidavits, and discovery materials that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. If the moving party submits an affidavit or other evidence in support of the motion for summary judgment, the nonmoving party must counter that affidavit with his own evidence from affidavits, discovery, etc., on the matter

Question 58

Claim Preclusion Rule Statement

Answer 58

For claim preclusion to apply, there must have been a valid, final judgment on the merits, both parties must be the same, and the new action must involve the same cause of action, meaning that all claims must arise out of the same conduct, transaction or occurrence

Question 59

Issue Preclusion Rule Statement

Answer 59

For issue preclusion to apply, (1) the issues in both actions must be the same; (2) there must have been a valid, final judgment on the merits as to that issue, (3) the party against whom preclusion is asserted must have had a fair opportunity to be heard on the matter, and (4) the posture of the case must be such that it would not be unfair or inequitable to apply issue preclusion.

For issue preclusion to apply, (1) the issues in both cases must be the same; (2) there must have been a valid final judgment on the merits, (3) the party against whom preclusion is asserted must have had a fair opportunity to be heard on the matter, and (4) the posture of the case must be such that it would not be unfair or inequitable to apply issue preclusion.

Question 60

Personal Jurisdiction Rule Statement

Answer 60

In order to exercise personal jurisdiction over a defendant, the exercise must first be authorized by state statute, and second, the exercise of personal jurisdiction must be constitutional (minimum contacts).

As to the first point, a federal court must analyze any personal jurisdiction issue as if it were a state court in the jurisdiction. If the statute authorizes personal jurisdiction to the maximum extent permitted by the Constitution, the two prongs merge together, and the only issue is whether the defendant had sufficient minimum contacts with the forum such that the exercise of personal jurisdiction over the defendant would be fair and reasonable.

If the cause of action arises from or relates to the defendant’s contact with the forum, specific jurisdiction - that is, jurisdiction over the defendant for the instant cause of action only - is possible. If the cause of action does not arise from or relate to the defendant’s contacts with the forum, there must be general jurisdiction - that is, jurisdiction over the defendant for all causes of action.

In order to be subject to general jurisdiction in a forum state, the defendant must be “at home” in the forum state. To be “at home” in a state, an individual defendant must be domiciled in the state. For a corporation, the US Supreme Court has stated that a corporation is “at home” in any state in which it is incorporated, and the one state where it has it’s PPB.

Question 61

SMJ Rule Statement

Answer 61

There are two main types of federal subject matter jurisdiction: (1) federal question jurisdiction, and (2) diversity of citizenship jurisdiction.

In order to satisfy federal question jurisdiction, the federal question must appear as part of the plaintiff’s cause of action as set out in a well-pleaded complaint (the plaintiff’s claim must arise under federal law).

Diversity of citizenship jurisdiction requires an amount in controversy of more than $75,000, as determined by the plaintiff’s good faith allegation in the complaint, and complete diversity of citizenship, meaning that no plaintiff is a citizen of the same state as any defendant. An individual is a citizen of the one state in which they are domiciled, and the party’s domicile may be changed be being physically present in the state coupled with the intent to remain there permanently for an indefinite period. A corporation is a citizen of every state in which it is incorporated, and the one state in which it has its PPB, which is the place from which the corporation’s high level officers direct and control the corporation’s activities.

Question 62

Service of Process on a Foreign Corporation

Answer 62

Under Rule 4, service on a foreign corporation may be made:
(1) in accordance with international treaty; - if there is none, then:
(2) in accordance with the foreign country’s laws
(3) as the foreign authority directs in response to a letter request for guidance
(4) by having the clerk mail process to the defendant, with a signed receipt requested; or
(5) most importantly, by other means not prohibited by international agreement as the court may order