Civ Pro

Question 1

PJ Steps

Answer 1

PJ is courts power to hear a case regarding a **party. **

Federal court must have PJ over the D, unless D waives PJ.

There must be minimum contacts between D and forum state, shown through

1. Purposeful availment
(D reached out to the forum voluntarily)

AND

**2. Foreseeability **
(It is foreseeable that D could be sued in the forum)

If the cause of action arises from or relate to D’s contacts in the forum, court may have SPECIFIC JURISDICTION.
* Specific jurisdiction requires fairness. To determine fairness, the following is considered: *

**1. Burden on D and witnesses
2. State’s interest
3. Plaintiff’s interest **

**If the cause of action DOES NOT arise from or relate to D’s contacts in the forum, the court NEEDS GENERAL JURISDICTION. **

General J. requires that D is “at home” in the forum state.

**Human: **
* state of domicile -OR-
* served with process in forum state

**Corporation: **
* where incorporated -OR-
* principal place of business.

Question 2

Notice + Service of Process

Answer 2

D is entitled to notice that she has been sued.

Process consists of 2 Documents:
**1. Summons (formal court notice of suit)
2. Copy of complaint **

Must be served by non-party who is at least 18

If in U.S., must be **within 90 days of filing the complaint in court. **Can be extended for good cause.

Question 3

Options to Serve a Person

Answer 3

**1. Personal service **
In hand delivery that can be anywhere.

D is immune from service of process while appearing in another case in state X.

2. Substituted service
* At D’s usual abode
* on someone of suitable age and discretion
* who **resides **there

3. Service on Agent
* Receiving service must be within scope of agency.

4. State Law Methods
* Law of the state where federal court sits **-OR- **
* Law of state where service is to be made

Question 4

Options to serve a business:

Answer 4

• On officer or agent
• State law methods
• Law of the state where federal court sits -or- law of state where service is to be made

Question 5

Option to serve a Minor or Incompetent Person:

Answer 5

Use state law where service is MADE.

Question 6

Option to serve in a foreign country:

Answer 6

• Method allowed by international agreement
• If no agreement on point, either:
  1. As directed by American court
  2. Method allowed by foreign country’s law
  3. Method directed by foreign official in response to letter of request from an American Court
  4. Personal service (if allowed by foreign country’s law)
  5. Mail sent by clerk of the American court, requiring signed receipt (if allowed by foreign country’s law)

Question 7

How D can waive service of process

Answer 7

P mails to D:
1. copy or complaint
2. TWO copies of waiver form
3. prepaid means of returning form

D must mail back signed waiver within:
* 30 days in U.S.
* 60 days if out of country.

D DOES NOT WAIVE ANY DEFENSES (like lack of PJ) BY WAIVING SERVICE

Waiver is effective the day the P files D signed waiver in court.

D pays for service as penalty for not waiving (unless good cause).

Question 8

How long does party get to respond to discovery requests?

Answer 8

30 days to respond to discovery requests, but extra 3 days if sent to you via snail mail.

Question 9

Diversity

Answer 9

• 2 Requirements: (1) Right Kind of Litigants -AND- (2) Amount in Controversy OVER $75K

Question 10

Diveristy - right kind of litigants

Answer 10

• Citizens of different U.S. states on opposite sides of litigation
• NO SMJ if ANY P is of same state as any D – (same state can’t be on both sides of the v.)

Alienage: Citizen of U.S. state on opposite side of citizen of foreign country

• A greencard holder and permanent resident in a U.S. state is NOT a U.S. citizen
• But no alienage, if greencard holder/ permanent resident is domiciled in the same state as U.S. citizen

Timing: whether there is diversity if determined at time case is filed

Question 11

Citizen of Human
(for diversity)

Answer 11

• Where legally a citizen -OR- where domiciled (person only has ONE domicile)

* How to Change Domicile:
1. Physical presence in new place -AND-
2. Subjective intent to make new place domicile for foreseeable future *

Question 12

Citizenship of Corporation (for diversity)

Answer 12

• ANY state or country where incorporated

-AND-

• ONE state or country where principal place of business (where corp’s managers direct, coordinate, and control the business)

Question 13

Citizen of UNincorporated Business
(for diveristy)

Answer 13

• Takes on the citizenship of members
• BUT in PARTNERSHIP - takes the citizenship of partners themselves are citizens

Question 14

Citizenship of decedent, minors, and incompetent
(for diversity)

Answer 14

Use the citizenship of citizenship of decedent, minors, and incompetent – NOT their representative

Question 15

Citizenship of Class Action
(for diversity)

Answer 15

Citizenship of the named representative

Question 16

Amount in controversy OVER $75K

Answer 16

claim itself must exceed $75K–> No PRE-judgment interest

** Aggregation of Claims**
* A SINGLE P may aggregate all claims against a single D to meet amount in controversy – claims do NOT need to be related
* Multiple Ps CANNOT do this

Joint Claims
EX: P is suing joint tortfeasors
* Look to total value of claim for joint claim
* Not aggregation; not adding anything

**Equitable Relief **
Look at whether
* Value of injunction to plaintiff would be over $75K

-OR-

• Cost to defendant to comply with injunction would be over $75K

Question 17

Fed. court will never hear what categories of cases

Answer 17

divorce, alimony, child custody, and probate cases

Question 18

federal question

Answer 18

1. P’s claim must arise under federal law

-AND-

2. determined by a well pleaded complaint –meaning P is enforcing a right under federal law

Question 19

Removal

Answer 19

Removal allows DEFENDANT to move a case origianlly filed in state court to federal court bc diversity or federal Q requirements met

Question 20

Removal Procedure

Answer 20

1. D filed notice of removal in federal court, copy in state court
2. Grounds of removal stated (diversity -or- federal q)
3. Served on adverse parties

Timing:

1. D must remove 30 days after SERVICE of first paper that shows case is removable
2. All Ds served with process must join in filing a notice of removal but need not be in same doc
3. Earlier-served D may join later-served D’s removal even if 30 day period expired

Question 21

Limitations on Removal of DIVERSITY cases

Answer 21

BUT 2 limitations on removal based on DIVERSITY

1. D citizen of forum state
* D cannot remove a case to federal court if D is citizen of the forum state

2. One-year limit since case was filed in state court
* D must remove 30 days after SERVICE of first paper that shows case is removable BUT cannot be removed if its been over one-year since case was filed in state court

Exception: One year restriction does NOT apply if D originally joined to prevent removal

Question 22

Removal Venue

Answer 22

Case must be removed to federal court geographically embracing the state court where the case was originally file – this means the same state AND same district

Question 23

Remanding a case back to state court that was IMproperly removed to Fed. court

Answer 23

P can remand back to state court is it was IMproperly removed to Fed. court.

If defect was lack of SMJ, P has no time limit to move to remand.

If defect is something else, P must move to remand within 30 days of the notice of removal filing.

Question 24

Supplmental J.

Answer 24

Must have a case that is ALREADY in federal court based on diversity or federal q

**STEP 1: **
Look for SMJ in additional claim (diversity or federal q). If there is SMJ already, then no need for supplemental if SMJ over additional claim.

**STEP 2: **
Additional claim does not have SMJ (diversity or federal q)

**Must arise from common nucleus of operative fact **with the claim that got the case into federal court– this includes same transaction or occurrence

**LIMITATION ONLY APPLYING TO CASES THAT GOT INTO FED COURT BASED ON DIVERSITY: **

• PLAINTIFFS cannot invoke Supp. J. in diversity cases

Exception: If there are multiple Ps, and the claim by one of them doesn’t meet the amount in controversy requirement, then supp. J can be used to bring it in.

NOTE:
Fed. Court can decline Supp. J **even if requirments are met if the claim on which federal SMJ is met is dismissed early in the case.

Question 25

In a Diversity case, the claim is based on state law. Must judge apply state law?

Answer 25

Erie Doctrine

STEP 1: **
Is there a valid **federal law on point that directly conflicts with state law?

• If yes, apply federal law

STEP 2:

If there is no federal law on point, a federal judge **must apply state law if substantive issue.

**5 Clearly Substantive Issues: **
1. Conflict or choice of law rules
2. Elements of a claim or defense
3. Statute of limitations
4. Tolling of statutes of limitations
5. Standard of granting a new trial because the jury’s award was excessive or inadequate

**STEP 3: **
NO federal law on point + issue is NOT CLEARLY substantive,

then judge must determine whether issue is substantive by considering ALL of the following:

1. Outcome determinative
Would applying the state law affect the outcome of the case?

If so, issue is substantive, and apply state law.

2. Balance interest factors
Does either the state or federal system have a strong interest in whether its rule should apply?

If so, apply the one with the greater interest.

**3. Avoid forum shopping **
If the fed. Court ignores state law on this issue, will this cause litigants to flock to federal court?

If so, apply state law.

Federal Common Law
Certain areas where federal judges can make judge-made law:

International relations
Admirality
Disputes between states
Right to sue federal officer
Federal common law will govern the preclusion of a judgement.

Question 26

Venue

Answer 26

SMJ tells us we can bring a case to federal court, but the **venue tells us which federal district. **

Below applies only to case initially filed in federal court –> NOT removal:

**1. Any district where all DEFENDANTs reside
However, the venue is proper in any district where D resides if all Ds reside within the state.
* Humans reside in any district where they are domiciled.
* Businesses reside in all districts where they are subject to PJ for the case in question (specific or general).

**2. -or- Where substantial part of claim arose or substantial part of property is located **

• More than 1 district can satisfy this requirement
• Substantial does not mean all

NOTE: IF NO D RESIDES IN USA, then venue can be in ANY district

Question 27

Transferring Venue

Answer 27

• Transfer occurs when court sends a case to another court within the same judicial system
• Transferee must be a proper venue + have PJ over D.
• ^Exception: if all Ps and Ds consent, and court finds cause for transfer.

Question 28

Transfer from PROPER venue

Answer 28

• Court can order transfer based on convenience of the parties and witnesses in the interest of justice

Court will consider public and private factors showing that the other court is the center of gravity for the case:

* Public:
What law applies, what community should be burdened with jury service, desire to keep local controversy in local court

**Private: **
*Convenience. For ex- where the witness for the case lives and where the evidence is. *

Effect on Choice of Law
Transferees usually must apply the choice of law rules of the OG transfeROR court.

Effect of Forum Selection Clause
* Federal courts will apply the forum selection clause, **unless **public interest factors weigh against it.
* When a case is transferred based on forum selection clause, the TRANSFEREE court will apply its OWN choice of law rules. Under Erie, required to apply choice of law rules of state in which the court sits.

Question 29

Transfer From an IMproper Venue

Answer 29

If venue improper, court will:

• Transfer if in interest of justice -or-
• dismiss.

Effect of Choice of Law
Transferee will apply its OWN choice of law rules. Under Erie, federal court required to apply choice of law rule of the state in which its located.

Question 30

Forum Non Conveniens

Answer 30

Forum Non Conviens applies when venue transfer is NOT possible bc you cannot transfer to a different judicial system.

Center of gravity is elsewhere in another judicial system.

Court will consider public and private factors showing that the other court is the center of gravity for the case:

* Public:
What law applies, what community should be burdened with jury service, desire to keep local controversy in local court

**Private: **
*Convenience. For ex- where the witness for the case lives and where the evidence is. *

Court will stay or dismiss the case, with expectation that P will then sue in the other court

**The other court must be adequate.
Will be adequate unless the P can get NO remedy there at all. **

Question 31

Complaint must include

Answer 31

1. Grounds for SMJ (not PJ or venue)
2. short + plain statement show P is entitled to relief
3. demand for relief (damages, injunction, etc.)

P must plead sufficient facts to support a **plausible **claim.

Exception: Matters Requiring More Detail or *Specificity *
**Fraud **
Mistake
Special damages

Question 32

Time Period for D’s response to complaint

Answer 32

D must respond by motion or answer within:

21 days of service of process

60 days if D waived service

Question 33

What defense are WAIVED if they are NOT brought in 12(b)(6) Motion to Dismiss? What time period does D have to raise these?

Answer 33

The following defenses need to raised in a 12(b)(6) motions to dismiss within 21 days of service of process -or- 60 days if D waived service:

• Lack of PJ
• Improper venue
• Improper process (documents - summons and complaint)
• Improper service of process

Question 34

What 12(b)(6) motions can can raised until the start of trial?

Answer 34

• Failure to state a claim
• Failure to join an indispensable party

Question 35

Time period for raising lack of Motion to Dismiss for lack of SMJ

Answer 35

lack of SMJ can be raised anytime- even after trial on appeal

Question 36

How many days does D have to Answer after a MTD is denied.?

Answer 36

If MTD is denied, then D must serve an Answer within 14 days after denial.

Question 37

What 2 things are done in the Answer?

Answer 37

1. Respond to the allegations in complaint:
   * Admit
   * Deny
   * Lack of sufficient information (has effect of denial)
2. Raise affirmative defenses

NOTE:
* Failure to deny an allegation, is admittance.
* Affirmative Defense are waived if not asserted in Answer

Question 38

How long does P get to ammend her complaint? D get to amend answer?

Answer 38

P has the right to amend her complaint once before D responds via motion or answer. D has right to amend once no later than 21 days after D serves her first Response (motion or answer).

Amendments After Time to Amend Expires
With court permission if justice so requires
Allowed unless delayed too long, will prejudice other party, or amendment would be futile

Question 39

How long does D have to Amend Answer?

Answer 39

D had right to amend her answer no later than 21 days after being serving it

Amendments After Time to Amend Expires
With court permission if justice so requires
Allowed unless delayed too long, will prejudice other party, or amendment would be futile

Question 40

What is a Variance?

Answer 40

• Variance occurs when evidence at trial does NOT match what was pleaded.
  **If another party fails to object, the party introducing the evidence can move to **amend the complaint to conform to the evidence. **

Question 41

Amendment AFTER Statute of Limitations Has Run (Relation Back)

Answer 41

To Join a Claim Not Originally Asserted:

• An amended pleading “relates back” if it **concerns the same conduct, transaction, or occurrence **as the original pleading.
• The related amended pleading is treated as though it was filed on date that original pleading was filed so you avoid statute of limitations issue

Question 42

To Change a Defendant

Answer 42

D knew or should have known within the service or process period (90 days) that P made a mistake by not naming him in original pleading
**
The amendment “relates back” and is within the propert process period, if it concerns the same conduct, transaction, or occurrence as the original pleading.**

Question 43

Supplemental Pleadings

Answer 43

• Supplemental pleading set forth things that happened AFTER pleadings were filed - NOT an amendment.
• Party must make a motion for a supplemental pleading – which may be granted or denied.

Question 44

Sanctions

Answer 44

**Rule 11: **

When a lawyer or pro se party signs documents, they are certifying to the best of their knowledge and belief, after reasonable inquiry, **these things are true: **

• Paper NOT for improper purpose
• Legal contentions warranted by law or good argument law should be changed
• Factual contentions and denials have **evidentiary support **

Sanctions

When Rule 11 certification is violated, sanctions may be imposed against the lawyer, firm, and/or party.

Purpose: To deter a repeat of conduct – not to punish.

Before imposing sanctions, the court must give the sanctioned party an opportunity to be heard.

Type of Sanctions

Non-monetary
Monetary – paid only to the court- not opposing party

Safe Harbor Provision

Party seeking sanctions must serve a motion on the opponent, before filing the motion for sanctions.

Party in violation has 21 days to fix before motion for sanction can be filed with the court.

Question 45

Joinder of Claims

Answer 45

P may join as many claims as P has against D even if unrelated

BUT there MUST BE SMJ OVER EVERY CLAIM

Question 46

What is joinder?

Answer 46

Joinder defines the scope of the case–how many parties and claims can be joined.

Question 47

Joinder of parties

Answer 47

Can join multiple Ps or Ds if:

1. Arise from same transaction or occurrence

-AND-

2.Raise at least one common question of law or fact

BUT still need to go through PJ and SMJ

Question 48

Necessary and Indispensable Party

Answer 48

• Court can force nonparties into the case if they are necessary and indispensable.

*Necessary parties should be joined if feasible–meaning there is PJ over the party and SMJ over the claim.

A party is necessary if:

(1) the court cannot accord complete relief w/o them

(2) their interest will be harmed if they are not joined

(3) or they claim an interest which subjects a party to multiple obligations.

Question 49

What is a counterclaim and how long do you get to respond?

Answer 49

Counterclaim: claim against an opposing party

When D asserts counterclaim against P, P has 21 days to respond

Question 50

Compulsory Counterclaim v. Permissive Counterclaim

Answer 50

A compulsory counterclaim arises from the same transaction or occurrence– if you don’t use it then you lose it!

Need SMJ too!

Permissive Counterclaim does **NOT **arise from same transaction or occurrence
Not lost–can sue in separate case

Need SMJ too!

Question 51

Crossclaim

Answer 51

Crossclaim is a claim against a co-party
Must arise from the same transaction or occurrence
**Never compulsory **
Need SMJ too!
NOTE: If a co-party sues back, then it’s a counterclaim.

Question 52

IMpleader

Answer 52

D Brings in a new party (called the third party Defendant “TPD”)

**For indemnity or contribution **
Indemnity: TPD pays all damages to P
Contribution: TPD pay damages to P pro rate

**Never compulsory **

How to Implead
D must file a 3rd party complaint and have it formally served on TPD

D has right to implead until 14 days after Answer, and after that must ask court permission

After TPD Joined
P can assert claims against TPD, and TPD can assert claims against P

They must be of same transaction or occurrence as the underlying case -AND- NEED SMJ for each claim

Question 53

Intervention

Answer 53

A non-party uses intervention to bring herself in the case as a P or D.

Must be “timely”

Intervention of right -or- permissive

If an intervening party would be harmed if not joined, and interest not adequately represented by the parties, that results in intervention of right.

If at least one common q of law or fact, intervention is permissive. Court has discretion whether to allow.

**
Need SMJ for intervention! **

Question 54

Class Action

Answer 54

Class Action is a case in which a representative(s) sues on behalf of group

Need CANT

1. Commonality
Resolution of an issue will decide something for everyone at once

**2. Adequate representative **

3. Numerosity
Is it too many to join as regular co-Ps

**4. Typically **
Class rep’s claim must be typical of the class members– action based on same injury or same conduct of the D

Question 55

Types of Class Actions (only need 1)

Answer 55

1. Common Questions or Damages
* Common questions predominate over individual ones
* Class action is superior method for handling dispute
* Court MUST notify members that they are in a class, paid for by the rep, says they will be bound if they assert their right to opt out

**2. Injunctive or Declaratory Judgment **
D treated class members alike
Cannot seek damages

3. Prejudice
Class treatment necessary to prevent harm or prejudice – very rare