civ pro

Question 1

aggregation multiple plaintiffs

Answer 1

no unless joint interest in relief

no if recovering separately

Question 2

aggregation multiple d’s

Answer 2

no unless jointly liable

Question 3

supplemental jurisdiction

Answer 3

A court may exercise supplemental jd over claims that form the same case or controversy as a claim over which it has original jd. Cases are so closely related if they arise from the same transaction or occurence and share common questions of law or fact.

Question 4

When may smj be declined

Answer 4

when the state law claims predominate over the federal claims

when no claims over which it has original smj are left

when it involves a novel or complex issue of state law

Question 5

removal jd

Answer 5

1. find the appropriate federal district court based on the location of the state court
2. file notice of removal within 30 days
3. provide fed. court w all papers filed
4. serve copies on all parties of notice of removal
5. serve copy on state court

At that point removal is automatic

Question 6

pj

Answer 6

deliberate minimum contacts; such that

exercise of jd over defendant comports with traditional notions of fair play and substantial justice

Question 7

minimum contacts

Answer 7

can be satisfied by either general jurisdiction; or specific jd

Question 8

general jd

Answer 8

contacts are systematic and continuous that litigant is essentially at home in the forum state

corp. place of incorporation; corporate headquarters

A defendant is subject to any and all claims raised against it in such a state.

Question 9

specific jd

Answer 9

claims must arise out of or relate to defendant’s deliberate contacts with the state.

Question 10

transient jd

Answer 10

defendant is served while physically present in forum state

Question 11

traditional notions of fair play and substantial justice

Answer 11

forum state’s interest in regulating the kind of activity involved

forum state’s interest in providing a forum for its residents

whether another forum is even available

location of witnesses and evidence

resolve disputes efficiently in the interstate judicial system

Question 12

time to serve s&c

Answer 12

90 days of filing complaint

Question 13

effect of failure to serve within 90 days

Answer 13

dismissal without prejudice; or
directive to serve within specified time

Question 14

Personal service on an individual

Answer 14

service may be made by delivering the summons and complaint

1. to the person himself
2. to someone of suitable age and discretion who resides in the individual’s current dwelling or usual place of abode;
3. according to methods prescribed by state law;
4. to an agent authorized to receive service

Question 15

service upon a corporation

Answer 15

in accordance with state law or

delivering the s&c to an officer or agent of the corporation

Question 16

service on foreign defendant

Answer 16

any manner not prohibited by int’l agreement

cannot be served by personal service

email if it (1): is reasonably calculated to provide notice of the action such that it satisfies due process; and (2): it does not violate an int’l agreement

Question 17

venue

Answer 17

venue is proper in

a judicial district in which one defendant resides if all defendants reside in the same state

any judicial district in which a substantial amount of events giving rise to the cause of action occurred; or

if venue can’t be found by any of the first two methods, any district IN which any of the defendants could be subject to pj

Question 18

transfer of venue

Answer 18

transfer of venue is proper if:

needed in for the convenience of the parties and witness or in the interests of justice; and

if the receiving court is one that could have entertained the suit in the first place

Question 19

transfer of venue law applied

Answer 19

the receiving court applies the substantive law of the transferor court if venue was proper there

if venue was improper in the transferor court, or if it would have been proper but for failure to apply a forum selection clause, the law applied is that of the transferee court

Question 20

forum selection clauses venue transfer

Answer 20

Courts will enforce a forum selection clause unless special factors such as unusual hardship or unequal bargaining power are shown.

Question 21

Preliminary injunction

Answer 21

Notice to the adverse party

security bond in an amount the court deems proper

Likelihood of success in the merits

Likelihood of irreparable harm in the absence of an injunction

the harm resulting from denying the injunction outweighs the harm that would result if the injunction were granted

Granting the injunction is in the public interest

Question 22

temporary restraining order

Answer 22

Same elements as preliminary injunction

May be granted pursuant to an ex parte hearing if the moving party shows

the likelihood of immediate and irreparable harm

certifies in writing any efforts made to provide notice to the opposing party and documents why notice should not be required;

and gives security in an amount reasonably calculated to compensate the adversarial party for their losses should the court determine Stace on the merits against the moving party

Expires after 14 days unless the court sets a shorter expiration.

Court and renew the temporary restraining order on a showing of good cause or if the party’s consent

Question 23

pleadings

Answer 23

short plain statement of the claim showing that pleader is entitled to relief

short plain statement of the grounds for the court’s jd

demand for the type of relief sought

Question 24

amendments to pleading and relation back

Answer 24

a party may amend its pleading once as a matter of right within 21 days after service of (a): the original pleading; or, if a responsive pleading is required, within 21 days of the responsive pleading or preanswer motion

Question 25

When does an amendment to a pleading relate back to the original date of filing?

Answer 25

1. when so provided by the applicable statute of limitations
2. when the amendment asserts a claim arising from the same series of transactions or occurrences
3. when the amendment seeks to change a party or party name and

the amendment concerns the same conduct, transaction or occurence

the new party received notice of the original action within 90 days such that it will not be prejudiced;

the new party should have known that the action would have been brought against it but for a mistake concerning the party’s id.

Question 26

compulsory cc

Answer 26

A counterclaim is compulsory if (1): it arises out of the same transaction or occurence as the opposing party’s claim and (2): it would not require joining another party over whom the court cannot acquire jurisdiction

Question 27

cross-claim

Answer 27

a pleading may state a claim against a co-party if the claim arises out of the same transaction or occurrence as the original action or counterclaim.

Question 28

Rule 11 Sanctions

Answer 28

striking paper/pleading, reprimand, censure, referring matter to disciplinary authority

order to pay a penalty

attorney’s fees and other expenses resulting from violation

Question 29

Rule 11

Answer 29

any paper submitted to the court must be signed by a party or the party’s attorney certifying that

(1) it is not being presented for an improper purpose

(2) the claims, defenses and other legal contentions are warranted and nonfrivolous;

(3): the factual contentions contain evidentiary support or will likely have such support after discovery; and

(4): the denials of factual contentions are warranted or reasonably based on lack of information

to the best of the person’s knowledge, info and belief formed after reasonable inquiry

Question 30

Sanctions determination

Answer 30

limited to what will deter repetition of similar conduct

whether the conduct was willful

whether part of pattern

effect on litigation

Question 31

Permissive joinder plaintiffs

Answer 31

under the FRCP, multiple plaintiffs may join in one action if: (1): joint and several relief is asserted by them or the claim arises out of the same transaction or occurence; (2): a common question of law or fact to all plaintiffs exists; and (3): subject matter jd exists for each claim.

Question 32

permissive joinder defendants

Answer 32

Under the frcp, multiple defendants may be joined in one action if a claim for joint and several relief is asserted against them or the claim against each arises out of the same transaction or occurence; a common question of fact or law to all defendants exists and subject matter jurisdiction exists for each claim.

Question 33

Required Joinder

Answer 33

A party must be joined in an action if the party is (1): a necessary party; and (2): joinder is feasible.

Question 34

necessary party

Answer 34

For purposes of required joinder, a party is a necessary party if

(a): the court cant grant complete relief among existing parties without the absent party;

(b): the absent party claims an interest in the action that would be impaired or impeded if that person wasn’t joined; or

(c): the party’s absence would leave an existing party subject to a substantial risk of multiple liability or inconsistent obligations.

Question 35

Intervention as of right

Answer 35

A party has a right to intervene in an action if

they have an interest in the subject matter of the litigation

that the protection of this interest would be impaired by its non-participation; and

their interests are not adequately protected by another party involved in the litigation

Question 36

permissive intervention

Answer 36

a court has discretion to allow a party to intervene if they have a claim or defense that shares a common question of law or fact with the main action.

The court must consider whether intervention would cause undue delay or prejudice the adjudication of the original parties’ rights.

Question 37

class action

Answer 37

one or more rep members of a class may sue on behalf of the entire class if

numerosity
commonality
typicality and
adequacy of representation

Question 38

class certification

Answer 38

class will be certified if

risk of inconsistent or dispositive adjudications

declaratory/injunctive relief is appropriate to the whole class bc the opposing party has acted or refused to act on grounds that apply generally to the class; or

predominance and superiority

Question 39

ESI sanctions

Answer 39

A party may be sanctioned for failing to preserve ESI only if:

the esi should have been preserved in anticipation of litigation; the party failed to take reasonable steps to preserve it; and the information cannot be restored or replaced.