Civ Pro Flashcards
If P properly brings suit in a state and a D moves to remove to fed court, andthe fed district has subject matter jurisdiction through diversity + >$75K, how can the P get a remand?
If one of the Ds is a resident of the original state. (Reasoning is the state will be more favorable to the D anyway.). Home court advantage rule.
Can the P’s spouse properly serve the D?
Sure, as long as over 18 and not a party to the case.
Can D file motion to dissmiss for improper service if D has been served but the proof of service was never recorded?
No. The plaintiff must provide proof of service of process to the court when service was properly made in the U.S. and not waived by the defendant. But a failure to prove service of process does not affect the validity of the service.
What must a D include in it’s answer to P’s claim?
An answer must include (1) admissions and denials, (2) motions that have not been waived, (3) affirmative defenses, and (4) compulsory counterclaims. Otherwise, these items will be waived.
What is collateral estoppel?
Collateral estoppel can be used offensively by the plaintiff in a second action to establish an issue against parties from the first action—with limited exceptions.
Collateral estoppel, also known as issue preclusion, is a legal doctrine in civil law that prevents (or “estops”) a person from relitigating an issue that has already been decided in a previous case. This doctrine is used to promote efficiency in the legal system and prevent the possibility of inconsistent verdicts by different juries or judges.
At what point in a claim is diversity determined?
At the time of filing. A move after the time of filing will not affect diversity jurisdiction.
In federal court, what governs personal jurisdiction?
Two things:
1) Constitutional due process requirements, and
2) state statutes regarding jurisdiction.
The bases for in personam jurisdiction are: (i) voluntary presence, (ii) domicile, (iii) consent, and (iv) the “long-arm” statute of the state where the federal district court sits.
How does a class action in fed court get settled?
Any certified class action can be settled, compromised, or voluntarily dismissed. When a settlement is proposed to the court, notice of the proposal must be provided to all class members who would be bound by it. This allows members to object to and opt out of the settlement before the court approves it. In addition, any proposed settlement must be approved by the court to be valid. The court may approve such a proposal only after it holds a hearing and issues findings that the settlement is fair, reasonable, and adequate.
What two areas of law do state courts have exclusive control over? (i.e. fed courts can’t hear these kinds of cases)
Federal courts cannot exercise diversity jurisdiction over cases that primarily involve probate matters or domestic relations. Instead, state courts have exclusive jurisdiction over these types of cases.
Where is venue proper when the D is a nonresident of the US?
When a defendant is a nonresident of the U.S., venue is proper in any federal judicial district.
After judgment is entered, how long does a party to have to make a motion for judgment as a matter of law?
28 days.
A motion for judgment as a matter of law is used to remove a case from the jury’s consideration when there is legally insufficient evidence for a reasonable jury to find in the nonmovant’s favor. The motion can be renewed within 28 days after the entry of judgment to seek to overturn an adverse verdict.
When can a federal court grant a preliminary injunction?
A federal court may grant a preliminary injunction when (1) the movant is likely to succeed on the merits, (2) the movant is likely to suffer irreparable harm in the absence of relief, (3) the balance of equities is in the movant’s favor, and (4) the injunction is in the best interests of the public.
This means no injunction if monetary damages are available.
When will a federal court exercise supplemental jurisdiction over a claim?
A federal court will generally exercise supplemental jurisdiction over a claim that falls outside of its original subject-matter jurisdiction if it shares a common nucleus of operative facts with a claim that arises within the court’s original subject-matter jurisdiction.
How many days does a party have to request a jury trial after the last pleading?
14 days
A party may secure a jury trial on any triable issue by (1) serving the other parties with a written jury trial demand no later than 14 days after the last pleading directed to that issue is served and (2) filing the jury trial demand with the court within a reasonable time after service of the demand.
When may a party NOT conduct an oral deposition without the court’s leave or the parties’ stipulation?
A party may conduct an oral deposition without the court’s leave or the parties’ stipulation unless (1) the deposition exceeds the 10-deposition limit, (2) the deposition is sought before the initial planning conference, or (3) the deponent was already deposed in the case.
What are the requirements for the Class Action Fairness Act?
The Class Action Fairness Act gives a federal court an alternative basis for subject-matter jurisdiction over a class action when (1) the class contains 100 members, (2) at least one class member is diverse from at least one defendant, and (3) the amount in controversy of the aggregated claims exceeds $5 million.
What’s the procedure for moving a court case from state to federal court?
It’s called REMOVAL. Generally Ds can get it with SMJ.
Procedurally: 30 days after service file signed notice of removal with a short and plain statement of reasons, including copies of complaint and summons served on party, with fed court. Promptly following, provide copy to adverse parties and state court. 30 days=if the last day is a weekend or holiday, then the next business day.
What is impleader?
The procedure in federal court for a defending party to make a claim against a non-party for all or part of the defending party’s liability on an original claim is “impleader.”
What factors does a court consider in a temporary injunction?
1: adequate remedy at law?
2: likely to succeed on the merits?
3: likely to suffer irreparable harm?
4: balance of equities tips in P’s favor?
5: relief is in public interest?
When can a D raise lack of personal jurisdiction as a defense?
Lack of personal jurisdiction is a defense that must be raised (1) in a pre-answer motion or (2) if no pre-answer motion is made, in the original answer or an answer amended as a matter of course (i.e., without the court’s permission). Otherwise, this defense is waived. Under FRCP 15, an answer can be amended once as a matter of course within 21 days:
In fed court, how can process be served?
Process can be served by (1) following the rules of the state where the court is located or where service is made, (2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or (3) leaving the summons and complaint at the defendant’s dwelling with a resident of suitable age and discretion.
May an appellate court hear an appeal from an order granting or denying class action certification?
Yes, if filed with the clerk of the appellate court within 14 days after the order is entered. But it’s discretionary.
How does a D establish personal jurisdiction?
Personal jurisdiction can be established through the defendant’s express consent, implied consent, waiver, or appearance—i.e., by voluntarily appearing in court to litigate the merits of the case. (note: they can do it accidentally, like by appearing in court.)
When an issue is not clearly substantive or procedural and no federal law directly applies, when does Erie require that federal courts sitting in diversity apply state law?
(1) it would be outcome determinative—i.e., failure to apply it would result in forum-shopping or inequitable administration—and
(2) there is no contrary federal interest.
May a federal court impose additur?
NOPE.
What’s the deadline for filing an appeal in fed cout?
28 days.
When must a court clerk enter a default JUDGEMENT?
A court clerk must enter a default judgment when (1) the plaintiff’s claim is for a sum certain or a sum that can be made certain by calculation, (2) the plaintiff’s request for default judgment includes an affidavit establishing the amount due, (3) the defendant failed to appear, and (4) the defendant is not legally incompetent or a minor.
When does the Seventh Amendment guarantee a right to a jury trial?
The Seventh Amendment right to a jury trial applies to federal civil cases when the amount in controversy exceeds 20 dollars and a party asserts a legal claim (i.e., a claim seeking a monetary remedy). However, this right does not apply when a party asserts an equitable claim (i.e., a claim seeking a nonmonetary remedy).
When can you file for FRCP 11 sanctions against a party’s attorney?
A party cannot file a motion for sanctions until 21 days after serving that motion on the alleged violator. This safe-harbor rule gives a violator time to correct the violation (including withdrawing the offending motion).
What does the judge do in when a general verdict with special interrogatories has an inconsistent verdict and answers?
In a general verdict with special interrogatories, the jury decides which party should prevail and provides answers to questions on each factual issue. If the verdict and answers are inconsistent, the judge must (1) order a new trial, (2) direct the jury to further consider its answers and verdict, or (3) enter a judgment consistent with the answers.
What three kinds of verdicts are there in a jury trial?
A verdict is the jury’s determination of factual issues in a case. There are three types of verdicts—general verdicts, special verdicts, and general verdicts with special interrogatories—and the judge has the discretion to choose which verdict to use
When is a denied motion for summary judgement immediately appealable?
(Normally not appealable because not a final judgement).
A district court may certify an order for appeal by stating in writing that (1) there is a substantial difference of opinion on a controlling question of law and (2) an immediate appeal may materially advance the ultimate termination of the litigation.
When can a party request jury instructions?
A party may request jury instructions before or at the close of evidence unless the court sets an earlier, reasonable deadline (including pre-trial). Even after the close of evidence, a party can request instructions (1) on issues that could not reasonably have been anticipated by the deadline or (2) with the court’s permission.
What’s the difference between general venue and special venue?
When a plaintiff sues a federal officer or employee, proper venue depends on whether the defendant is sued for acting in (1) his/her individual capacity or (2) an official capacity or under color of legal authority.
When an officer or employee is sued in an individual capacity, the general venue statute applies. But when an officer or employee is sued in an official capacity or under color of legal authority, the special venue rules apply and venue is proper only where:
any defendant resides (residency-based venue) a substantial portion of the events giving rise to the suit occurred (events-based venue) or a substantial part of the property at issue is located (property-based venue) or the plaintiff resides, if no real property is involved.
Two requirements for a person to be a citizen of a state:
To be a citizen of a state, a person must be
(1) a citizen of the United States and
(2) a domiciliary of the state.
VA civ pro: What three things does a party’s signature certify when filing a pleading or a motion?
Every party filing a pleading or making a motion certifies that:
(i) He has read the pleading, motion, or other paper;
(ii) To the best of his knowledge, information, and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and
(iii) It is not interposed for any improper purpose.
What is a demurrer?
Basically a state “motion to dismiss.”
In circuit court, when is a D in default?
A defendant in default in circuit court when the defendant fails to timely file a responsive pleading.
VA: How does a party make notice that an action has been filed that may affect a piece of real property?
The party may file a lis pendens with the real property records office where the real property is located.
When can a D plead laches as a defense?
Laches may be pled when the plaintiff delays in bringing an equitable claims to which no statute of limitations applies, and the delay (i) has worked to the disadvantage of the defendant or (ii) warrants the presumption that the plaintiff has waived his right to bring the claim.
Laches = implicit Statute of Limitations kinda
VA: Statute of limitations for personal injury?
Two years, regardless of type of damages
VA: Statute of limitations for adverse possession?
15 years
VA: statute of limitations for easement by prescription?
20 years
In VA, what should a lawyer do when she’s in a depo and her client is lying to the other side under oath?
when a lawyer knows that a client has committed perjury by lying under oath, the lawyer has a duty to take remedial measures. First, the lawyer should attempt to persuade the client to rectify the matter by revealing the fraud and testifying truthfully. If that fails, and the proceedings have not yet concluded, the lawyer must reveal the perjury.
VA: when may a D challenge the court’s personal jurisdiction?
While Virginia generally requires a defendant who wishes to challenge the court’s personal jurisdiction over him to file a special appearance, under Federal Rule of Civil Procedure (FRCP) 12(b), the lack of personal jurisdiction is among the defenses that are subject to a special rule. This defense must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer or within the time for amending the answer as of right, or the defense will be waived. A defendant must respond to a complaint either by an answer or by a pre-answer motion within 21 days of service of the complaint, unless the defendant seeks and is granted additional time in which to respond.
Although FRCP 12(b) states that a motion asserting the defense of lack of personal jurisdiction must be made before pleading if a responsive pleading is allowed, FRCP 12(h) provides that this defense is waived if a party fails to make it by a motion under this rule or include it in a responsive pleading (i.e., answer). Consequently, courts have concluded that, despite the language of FRCP 12(b), a motion to dismiss based on the lack of personal jurisdiction may be filed after an answer is filed when the answer pleads this defense.
What is VA’s long-arm statute?
Virginia’s long-arm statute—Among a defendant’s conduct that permits a Virginia court to acquire long-arm jurisdiction over that defendant, the following three situations are applicable under these facts—(i) causing tortious injury in Virginia by an act or omission outside Virginia, if the defendant regularly does business or derives substantial revenue from goods used or consumed or services rendered in Virginia; (ii) causing injury in Virginia to any person by breach of warranty expressly or impliedly made in the sale of goods outside Virginia when the defendant might reasonably have expected such person to use, consume, or be affected by the goods in Virginia (provided that he also regularly does business or derives substantial revenue from goods used or consumed or services rendered in Virginia); and (iii) using a computer or computer network located in Virginia.
What is the exclusionary rule?
Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment may not be introduced at trial to prove guilt.
VA: what evidence may the Commonwealth produce in sentencing?
The Commonwealth may present victim impact testimony and the defendant’s prior criminal history (adult or juvenile). The Commonwealth must provide the defendant 14-days notice prior to trial of its intention to introduce copies of final orders evidencing the defendant’s prior criminal history, and must provide copies of any such final order evidence it intends to introduce at sentencing. The defendant may then introduce any relevant, admissible evidence related to punishment. The Commonwealth may then rebut with similar evidence.
VA: What if process is improper?
Never fear, VA has a curative statute. Basically the process just needs to reach the party, through any means, as long as it’s timely. Not true in divorce, or annulment.
VA: is there preferred venue for personal injury?
a personal injury lawsuit does not have preferred venue or mandatory venue, so any location in category B is good (where injury occurred, D lives, D’s agent lives etc)
How can a fed court establish personal jurisdiction over a foreign corporation that lacks minimum contacts with the forum state?
IF
1) P asserts federal-law claim
2) defendant is not subject to personal jurisdiction in any state court and
3) the exercise of jurisdiction would be consistent with the U.S. Constitution and federal laws—i.e., the defendant has minimum contacts with the United States as a whole.
[Note: state long arm statute only applies if D has minimum contacts with the state]
Name the 3 alternate ways a fed court can establish personal jurisdiction (besides long-arm statute):
(1) nationwide personal jurisdiction (federal statute authorizes nationwide service of process)
(2) bulge rule: party added to suit via impleader or required joinder; and served within 100 miles of fed court
(3) federal claim, no state-court jurisdiction (D not subject to any state court, i.e. foreign)
How does a fed court establish diversity jurisdiction in a class action case?
(1) NAMED opposing parties are citizens of different states; and
(2) any NAMED P’s good-faith claim exceeds $75K
(court can then exercise supplemental jurisdiction over other class members)
When can a fed court exercise supplemental jurisdiction?
A federal court may exercise supplemental jurisdiction over a claim that falls outside its original subject-matter jurisdiction if the claim shares a common nucleus of operative facts with a claim that arises under the court’s original jurisdiction.
This includes if there’s a federal question and then a state claim but no party diversity–if state claim from common nucleus, can be brought in under supplemental
If a fed court enters a judgment against a D, is that judgement enforceable by a fed court in another state even if D has no minimum contacts in the second state?
YES.
(Note: the Full Faith and Credit clause applies to state courts, not fed, so it’s not relevant here.)
What three ways in fed court is process served?
Process can be served by (1) following the rules of the STATE where the court is located or where service is made, (2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or (3) leaving the summons and complaint at the defendant’s dwelling with a resident of suitable age and discretion.
According to the FRE, how many days for service of process after P files complaint?
90 days.
*The 90-day deadline for service of process applies to defendants in the U.S. For defendants in a foreign country, most federal courts require that process be served with due diligence.
Under FRE, how long does a party have for a RESPONSE to an amended pleading?
Under Federal Rule of Civil Procedure 15, a party may amend its original pleading (e.g., complaint) once as a matter of course (i.e., without the court’s permission). When this occurs, a response to the amended pleading (e.g., answer) generally must be made by the later of the following deadlines:
The time remaining to respond to the original pleading—e.g., an answer is generally due within 21 days after service of process 14 days after the service of the amended pleading*
Under the FRE, how long does a party have to respond to a pleading?
21 days after SERVICE of process
In FRE, when fed court certifies a class action of prejudicial risk (i.e. separate actions by individual class members would create a risk of inconsistent decisions), is the court required to notify all class members?
No.
In “prejudicial risk” and “final equitable relief” class actions, a court may—but is not required to—provide notice to class members, who do not have a right to opt out and file separate suits.
What three kinds of class actions can a fed court certify>?
A federal court has the power to certify (i.e., authorize) the following types of class actions:
(1) Prejudicial risk – when separate actions would create a risk of inconsistent decisions regarding the parties or impairing absent class members’ interests (notice to all class members not required)
(2) Common question – when common questions of law or fact predominate over individual questions and a class action is the best method to fairly and efficiently adjudicate the dispute (notice to all class members not required)
(3) Final equitable relief – when injunctive or declaratory relief is appropriate because the opposing party's actions generally apply to the whole class (notice to all class members IS required)
What are the mandatory pretrial disclosures, and when are they due?
(1) The name, address, and phone number of each witness, separately identifying witnesses expected to testify at trial and those who may be called if the need arises
(2) The designation of witnesses whose testimony will be presented by deposition, including a transcript of the pertinent parts of any deposition that was not taken stenographically (i.e., by shorthand)
(3) All documents and exhibits, separately identifying items expected to be offered as evidence and those that may be offered if the need arises
These pretrial disclosures must be made at least 30 days before trial.
What are the expert testimony disclosures, and when are they due>?
*Identity of expert witnesses, due ≥ 90 days before trial
- Expert’s written report, due ≥ 90 days before trial
- If no report, subject matter & summary of testimony, due as court orders or parties stipulate
What are the 4 initial mandatory disclosures, and when are they due?
(1) Persons with relevant information [14 days after initial planning conference]
(2) Items in party’s possession that support claim/defense [14 days after initial planning conference]
(3) Computation of damages & supporting material [30 days after post-conference service or joinder]
(4) Relevant insurance policies [as court orders or parties stipulate]
Under the FRCP, is a report created by an expert witness who is NOT going to testify discoverable?
No.
Facts known and opinions held by an expert not expected to testify, including the expert’s identity, are privileged and not discoverable unless:
--that information relates to a court-ordered physical or mental examination or --exceptional circumstances make it impracticable to obtain the information by other means—e.g., a party dies and cannot be evaluated.
In the FRCP, What’s the dead line for requesting a jury trial?
Any party may secure the right to a jury trial in a civil action on any legal claim where the amount in controversy exceeds $20 by (1) serving the other parties with a written jury demand no later than 14 days after the last pleading is served and (2) filing the demand with the court within a reasonable time after serving it.
What are the exceptions under FRCP when an appeal can be made BEFORE a final judgment?
Injunction (grant/denial)
Certification by district court
Class action certification
Appointment of receiver
Admiralty case
Collateral-order doctrine
Bankruptcy cases (certain orders)
Mandamus (petition for writ)
Patent infringement order (only accounting left)
Mnemonic: In Certain Circumstances, An Appeal Can Be Made Prematurely
Under the FRCP, when is an appeal timely?
A notice of appeal must generally be filed with the district court clerk within 30 days after the entry of final judgment or an immediately appealable order.
Which Amendment would authorize Congress to pass an anti-human trafficking law?
Section 1 of the Thirteenth Amendment prohibits all government and private entities from engaging in slavery or involuntary servitude—e.g., forcing someone into involuntary employment based on physical or legal threats. And the Section 2 enforcement clause gives Congress the power to enact legislation to eliminate slavery and involuntary servitude. Therefore, the Thirteenth Amendment alone would be sufficient to support a Supreme Court ruling upholding the constitutionality of a federal statute that criminalizes involuntary employment.
When does a federal court have federal question jurisdiction over a cause of action arising under state law?
A federal district court does not have federal question jurisdiction over a cause of action arising under state law unless the court determines that the interpretation or application of state law may affect the outcome and the federal issue or interest is important enough to justify the exercise of jurisdiction. In order for federal question jurisdiction to exist when the cause of action is based in state law, the court must determine whether the state-law claim necessarily stated a substantial and disputed federal issue that a federal court could adjudicate without disturbing the balance of federal and state judicial responsibilities.
For establishing jurisdiction and venue, does a corporation have contacts with a state through the actions of an independant contractor it’s hired?
NOOOOO. it has to be through their employee. Independent contractors do not tie down the corporation.
What’s the exception for when there’s federal jurisdiction in a case involving state law (not diversity?)
The Supreme Court has also recognized the application of federal common law when a “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law.
Under the UCC, is new consideration required to amend a contract?
NO.
The UCC, rejecting the preexisting duty rule, does not require consideration in order for the good-faith modification of a contract to be valid.
What are the diversity and amount in controversy requirements to establish jurisdiction in a federal statutory interpleader action?
For diversity jurisdiction in a federal statutory interpleader action, the value of the property at issue must only be $500 or more, and any two adverse claimants must be citizens of different states.
What evidence is needed to rebut a movant’s prima facie showing that summary judgment is appropriate?
Once the movant makes a prima facie showing that summary judgment is appropriate, the burden of proof shifts to the opposing party to set forth SPECIFIC EVIDENCE showing the existence of a genuine issue of fact for trial. (Note: opposing party can’t just use an affidavit saying they intend to call an eyewitness at trial. need the specific evidence, i.e. the statement from the eyewitness herself.)
If there’s a problem with a juror’s answer on voir dire, what must a party show to get a new trial?
To obtain a new trial, a party must demonstrate that a juror failed to answer honestly a material question on voir dire, and show that a proper response would have provided a valid basis for a challenge for cause.
What can Circuit Courts do that general district can’t? (VA)
– only circuit courts have jury trials
– amounts sued for in excess of $25,000 for actions to recover specific personal property
–circuit courts do generally have exclusive jurisdiction over amounts sued for in excess of $50,000.
In VA: P files breach of contract but doesn’t attach the contract to the plea. What motion should D make?
A motion “craving oyer” in Virginia seeks a court order compelling the plaintiff to produce a document mentioned in, but not attached to the complaint that is essential to the complaint. If the motion is sustained, the document becomes part of the plaintiff’s complaint and the defendant can rely on the document in a demurrer.
How can a fed court get jurisdiction over a foreign defendant who has no minimum contacts?
1- must be federal question
2- minimum contacts with the entire United States, so the exercise of personal jurisdiction would be consistent with the U.S. Constitution and federal laws.
3- no state court could exercise jurisdiction over the defendant.
In a class action case with diversity jurisdiction, how can the court exercise jurisdiction over claims that do not exceed 75L
When diversity jurisdiction exists over at least one named plaintiff’s claim in a class action, a court may exercise supplemental jurisdiction over claims that do not satisfy the amount-in-controversy requirement.
Is there a Full Faith and Credit type action available when a judgement is entered in federal court?
Yes. A judgment entered by a federal court with personal jurisdiction over the defendant can be enforced by a federal court in another state—even if the defendant does not have minimum contacts with that state.
How can process be served in fed court?
Process can be served by (1) following the rules of the state where the court is located or where service is made, (2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or (3) leaving the summons and complaint at the defendant’s dwelling with a resident of suitable age and discretion.
How long do you have to respond to an amended pleading? (fed court)
Unless the court orders otherwise, a responding party generally must respond to an amended pleading within (1) the time that remains to respond to the original pleading or (2) 14 days after service of the amended pleading, whichever is later.
P’s burden of persuasion in a conversion case? (in VA)
preponderance of the evidence
P’s burden of persuasion in a fraud action? (in VA)
Clear and convincing evidence
P’s burden of persuasion in IIED? (in VA)
Clear and convincing evidence
P’s burden of persuasion to establish punitive damages? (in VA)
Clear and convincing evidence
In VA, does a lawyer have to turn over all work product to a client who fires her even if the client hasn’t paid?
YES. Under the Virginia rules, papers produced as work product must be turned over to the client when the representation is terminated. This duty to return papers to the client exists even when the client has not paid the lawyer’s fee.
In VA, is opinion testimony admissible for character evidence?
NO.
Virginia does permit the introduction of character evidence in the form of reputation testimony for both substantive and impeachment purposes, Virginia does not permit the introduction of character evidence in the form of opinion testimony for either substantive or impeachment purposes.
In VA, what’s the SOL for breach?
For an action based on an oral contract, the statute of limitation is three years. The statute of limitations begins to run upon the breach of the contract.
How long does a party taking a nonsuit have to refile (assuming SOL has expired?
A party taking a nonsuit may refile within the later of six months from the date of entry of the order granting the nonsuit or within the original period of limitations, which ignores the filing of the action that was nonsuited.
In VA, how long does a circuit court judgment last? How long does a district court judgment last?
A circuit court judgment dated on or after July 1, 2021, is enforceable for 10 years from the date of the judgment, but a circuit court judgment dated before July 1, 2021, is enforceable for 20 years from the date of the judgment. The time limit for enforcement of a general district court judgment is 10 years from the date of the judgment,
Where is venue proper in a federal civil action?
In general, venue in a federal civil action is proper in only one of the following judicial districts: (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located, or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located. (Note: only one D need object to venue)
In fed court, does proper service of an answer follow the rules of the forum state?
No. unlike service of process, the federal rules do not provide for service of an answer in accord with the law of the state in which the federal court sits.
Let’s say D doesn’t respond to an allegation, so the court takes the issue as admitted, and then in a second case the same issue is in play again. Does D get a chance to litigate it, or does res judicata apply?
D gets to litigate. In order for issue preclusion to apply, one of the requirements is that the issue must have been actually litigated in the prior action.
