Civ Pro

Question 1

Federal Question

Answer 1

All cases and controversies arises under the US Constitution

Question 2

Well-pleaded Complaint

Answer 2

A rule in civil procedure stating that, in order for federal question jurisdiction to be granted, a plaintiff’s “well-pleaded complaint” must state that the defendant directly violated some provision of the Constitution or federal law.

Question 3

Diversity Jurisdiction

Answer 3

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between;
1) citizens of different States
2) citizens of a State and citizens or subjects of a foreign state
3) citizens of different States and in which citizens or subjects of a foreign state are additional parties
4) a foreign state

Question 4

Where are corporations domiciled?

Answer 4

Corporations are domiciled where they are incorporated and principle place of business.

Question 5

Supplemental Jurisdiction

Answer 5

A claim that arises from the same case or controversy as an anchor case with federal jurisdiction, may be filed in federal courts. However, Federal courts may decline supplemental jurisdiction if supplemental claims are dominant or involve novel state claims.

Question 6

Removal

Answer 6

A defendant can remove a case from state court to federal court if:
1) That federal court would have otherwise had jurisdiction
2) Its the correct federal jurisdiction
3) Defendant provides notice to the court along with all documents
4) Defendant provides notice to all parties
5) Defendant is not in its home state

Question 7

Personal Jurisdiction

Answer 7

State has jurisdiction over its own citizens, defendants who consent, defendants who are physically served inside the state’s borders.

Question 8

Long Arm Statue

Answer 8

A party may fall under a state’s long arm statutes if:
1) Does case involve an activity covered by the statute
2) Are there minimum contacts
3) Does jurisdiction fall within traditional notions of fair play and justice

Question 9

Specific Jurisdiction

Answer 9

Defendant’s activities have actual contacts with the forum state.

Question 10

General Jurisdiction

Answer 10

The defendant holds itself out as at home in the forum state. ie. they have systematic and continuous contact

Question 11

How may you serve process?

Answer 11

1) In person
2) by any rule of the forums state
3) by any rule of the state the party is a resident of
4) by mail to the parties home address
5) to an authorized party

Question 12

What is an appropriate venue?

Answer 12

The appropriate venue is the correct geographic location for the case. It can be any place if every defendant resides in the same place. Any place that a defendant corporation would be subject to personal jurisdiction, any venue where significant events involved in the controversy took place, or any venue where the defendant is subject to personal jurisdiction.

Question 13

When can a case be transfered to a Federal Court?

Answer 13

You may transfer to another federal court if that venue is:
1) convenient to the defendant
2) just and fair
3) would have had jurisdiction if the case had been originally brought there or

Question 14

Complaint

Answer 14

identifies the specific issue and makes a plausible case for relief

Question 15

Answer

Answer 15

Defendant must confirm or deny each allegation and raise any affirmative defenses.

Question 16

Amendment

Answer 16

A plaintiff may amend their complaint within 21 days of filing it. You get 1 free amendment after which you may only amend with permission from the courts. It should be granted if justice demands.

Question 17

When does an amendment ‘relate back’?

Answer 17

Amendments relate back if:
1) statute permits
2) adds a claim or defense that stems from the original pleading
3) the amendment only changes names

Question 18

Joinder

Answer 18

Rule 20(a)(1): parties may join as a plaintiff if they assert any right jointly, severally, or relating to the same occurance or common question of law. May join as defendant if any claims are asserted against them.

Question 19

Counterclaim

Answer 19

Rule 13: defendants may assert a claim against a plaintiff. If it is arises from the same case or controversy it must be asserted or the claim is lost.

Question 20

Intervention

Answer 20

When a party claims an interest in an underlying property and resolution could effect their interest. A permissive intervention occurs if the intervention stems from the same occurance

Question 21

Joinder

Answer 21

Rule 19: If a court cannot provide full relief without the addition of absent parties.

Question 22

What are the requirements to form a Class Action?

Answer 22

Court will certify a class action under Rule 23(a) if:
1) the class is so numerous that joinder of all members is impracticable;
2) there are questions of law or fact common to the class;
3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
4) the representative parties will fairly and adequately protect the interests of the class.

Question 23

What are the types of Class Actions?

Answer 23

1) prosecuting separate actions by or against individual class members would create a risk of:
A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

Question 24

Scheduling Order

Answer 24

Scheduling orders are issued as soon as practicable after a scheduling conference with the parties lawyers or after receiving discovery. Can be no later than 60 days after first appearance or 90 days after service of process. Once a scheduling order is issued, parties may no longer move for joinder, amendments, discovery, filing motions

Question 25

Modification

Answer 25

Rule 16: a complaint may be modified for good cause.

Question 26

What is Rule 11?

Answer 26

Lawyer must sign all documents certifying that they are produced in good faith. A lawyer in violation of rule 11 has 21 days to correct before the court may issue sanctions.

Question 27

Discovery Procedures

Answer 27

Rule 26(f): initial planning, may not request discovery until after this phase, however, 21 days after service you may request documents
26(a): discovery plan
After the initial planning, parties may request discover, send subpoenas, take interrogatories, and disclose experts
26(c): provides protections against burden, cost, embarrassment, exceeding the scope, harassment, or unreasonably cumulative discovery

Question 28

Work Product Doctrine

Answer 28

Any work generated by attorneys or clients as trial prep or in anticipation of trial is not discoverable.

Question 29

Discovery enforcement and protection

Answer 29

Compelled Discovery: a party who is not receiving discovery must first meeting with the other party to remedy the situation. If that fails then they may file a motion to compel, after which the court will issue an order compelling discovery or levying sanctions.

Preservation of evidence: A party has a duty to preserve any relevant information as soon as they are aware that there may be litigation.

Question 30

Erie Doctrine

Answer 30

Applies to cases under federal law with diversity jurisdiction. If State law is dispositive use state law, if federal law is dispositive then federal law is dispositive, if the law is silent or there is a conflict use the Erie doctrine.
1) Substantive vs procedural
2) Outcome determinative test
3) prevailing interest

Question 31

Motions on Pleadings other than Dismissal

Answer 31

Rule 12: Motion for more definite statement, must be requested prior to submitting an answer.
Motion to Strike: may be used to remove portions of the complaint that are immaterial, impertinent, or scandalous.
Motion for Judgment on the Pleadings: is a motion to dismiss the case based on failing to provide a proper pleadings

Question 32

Rule 12(b) Motion to Dismiss

Answer 32

Defendant may move to dismiss a case for any of the following reasons: subject matter jurisdiction, personal jurisdiction, improper venue, insufficient service of process, insufficient process, failure to state a claim, failure to join a required party.

Question 33

Temporary Restraining Order

Answer 33

A temporary restraining order may be granted if there is an immediate risk of irreparable harm occurring. Courts will balance this situation against the damage that the TRO could do, the likelihood the plaintiff’s case will succeed, and the type of harm likely to be suffered. A TRO can last for up to 14 days and can be extended for cause by the judge.

Question 34

Preliminary Injunction

Answer 34

To get a preliminary injunction, a party must show that they will suffer irreparable harm unless the injunction is issued. Preliminary injunctions may only be issued after a hearing. When determining whether to grant preliminary injunctions, judges consider the extent of the irreparable harm, each party’s likelihood of prevailing at trial, and any other public or private interests implicated by the injunction. Parties may appeal the judge’s decisions on whether to award a preliminary injunction.

Question 35

Summary Judgment

Answer 35

Rule 56: when facts, taken in favor of the non-moving party, have no genuine disputed issues and demonstrate that as a matter of law the case will be resolved in the moving party’s favor, the court may rule in that party’s favor. This can be done by affirmatively proving the matter at issue or by demonstrating the non-moving party has failed to carry their burden.

Question 36

Default Judgment

Answer 36

Rule 55(a): upon a showing to the clerk of a failure to plead or otherwise defend, the clerk must issue an order of default. If the amount or subject of the controversy is not in question that shall be awarded to the moving party. If the award is in dispute then the judge will hear the motion and award up to the demanded award. If the non-moving party has previously made an appearance, the court shall give 7 days notice before the order is issued. Default can also be used as sanctions.

Question 37

Dismissal

Answer 37

The plaintiff may dismiss their claim prior to the defendant’s answer at any time, or may do it by court order after. The dismissal may occur without prejudice or with prejudice. Dismissals with prejudice are considered final decisions and prevent the case being brought again. If the plaintiff voluntarily dismisses a case a second time, it will be dismissed with prejudice.

Question 38

What are the requirements for a Jury?

Answer 38

A person is entitled to a jury trial for federal claims is a legal, not an equitable, claim and the punishment is greater than $20. A party may demand a jury trial up to 14 days after the last allowable pleading. The court may order it for any trial that would otherwise be eligible for a jury trial. The jury was be between 6-12 people and they must return a verdict unanimously.

Question 39

Judgment as a Matter of Law and New Trial

Answer 39

Before the trial goes to the jury a party may move for a judgment in their favor because all the evidence, when taken in a light that most favors the non-moving party, can only reasonably return a verdict in the moving party’s favor. This may be renewed up to 2 days after a jury verdict but there must be substantial evidence in favor of setting aside a jury verdict. This is usually submitted with a motion for a new trial.

Question 40

Relief from judgment

Answer 40

If new evidence is found, or fraud is discovered, or in a case that justice demands, a party may request they be relieved of the burden’s of a previous judgment. The judge is granted large amounts of discretion when resolving this claim.

Question 41

Res Judicata

Answer 41

Preclusion. If a prior case ended in a valid judgment, the parties are identical or in privily, and the case involves the same course of action, it is barred from being brought again.

Question 42

Collateral Estoppel

Answer 42

The case being brought shall be barred it if the case being brought is:
1) An identical to issue to a prior case
2) that case ended in a valid judgment
3) the case was litigated and necessarily decided
4) the current party had full and fair opportunity to litigate the prior case

Question 43

Final Judgment Rule

Answer 43

Appeals cannot be done until after the final judgment of the case has been submitted. The only exception are for interlocutory appeals such as injunctions and certifying questions. The certifying question must be a controlling question, there exists substantial grounds for the appeal, and the outcome must materially alter the outcome of the trial.

Question 44

Collateral Orders

Answer 44

Sometimes there exist collateral issues such that without their resolving satisfaction cannot be granted. When justice warrants to prevent irreparable harm the court may resolve these issue with collateral orders. Appeals must find these orders clearly erroneous.