civ pro

Question 1

Subject matter JDX

generally

Answer 1

A federal court must have subject matter JDX in order to decide cases before it.

Question 2

Federal question JDX

Answer 2

A federal court has SMJ under federal question JDX if the complaint alleges a claim that arises under federal law

Question 3

well pleaded complaint rule

Answer 3

The federal question must be presented on the face of the plaintiff’s complaint. Raising a defense or filing a counterclaim under federal law does not trigger federal question JDX

Question 4

Diversity JDX

Answer 4

A federal court has SMJ under diversity JDX if there is complete diversity and the amount in controversy exceeds $75,000

Question 5

Complete diversity

Answer 5

Complete diversity is present if every plaintiff is a citizen of a different state than every defendant

Question 6

AIC and injunctive relief

Answer 6

A claim for injunctive relief may be valued by the benefit to the plaintiff or the cost of compliance to the defendant

Question 7

One P aggregating claims to meet AIC

Answer 7

• One plaintiff can aggregate all of her claims against one defendant to meet the amount in controversy requirement.
• One plaintiff can also aggregate all of her claims against multiple defendants if they are jointly liable

Question 8

Multiple Ps aggregating claims to meet AIC

Answer 8

If there are multiple plaintiffs, generally, each plaintiff’s claim must meet the amount in controversy requirement separately, unless supplemental JDX applies

Question 9

Things a federal court never has JDX over

Answer 9

A federal court does NOT have diversity jurisdiction for probate actions and domestic relation matters (e.g., divorce, child support/custody, etc.)

Question 10

Citizenship

general rule

Answer 10

The citizenship of each party to the action must be considered in order to decide whether complete diversity is present

Question 11

citizenship of individuals

Answer 11

• For individuals, citizenship is determined by the state or country of domicile (i.e., the place of residence where they intend to remain indefinitely)
• an individual can only have one domicile at a time

Question 12

citizenship of corporations

Answer 12

Corporations hold dual citizenship for diversity purposes
- the state or country of incorporation; and
- the state or country of its principal place of business (i.e., the nerve center, usually where the corporate headquarters are located)

Question 13

citizenship of unincorporated associations

Answer 13

unincorporated associations and partnerships are considered a citizen of every state in which its members are citizens

Question 14

Diversity for class actions

generally

Answer 14

• For class actions, the citizenship of each named party in the class who are suing count for diversity purposes
• Class members who are not named may join without regard to citizenship

Question 15

Supplemental JDX

generally

Answer 15

Supplemental JDX allows a federal court with valid SMJ over a case to hear additional claims which the court would not otherwise have JDX over if ALL the claims constitute the same case or controversy

Question 16

same case or controversy

for supplemental JDX

Answer 16

Claims constitute the same case or controversy if they arise out of a common nucleus of operative fact (meaning they arise out of the same transaction or occurrence)

Question 17

supplemental JDX in federal question cases

Answer 17

A federal court sitting in federal question JDX may hear a pendent state law claim under supplemental JDX if the state law claim arises out of the same transaction or occurrence as the federal law claim

Question 18

Compulsory counterclaims, diversity, and supplemental JDX

Answer 18

• A compulsory counterclaim is a counterclaim that arises out of the same transaction or occurrence as the original claim that was filed
• a federal court sitting in diversity JDX has supplemental JDX over a compulsory counterclaim

Question 19

Permissive counterclaims, diversity, and supplemental JDX

Answer 19

• a persmissive counterclaim is a counterclaim that does NOT arise out of the same transaction or occurrence as the original claim filed
• a permissive counterclaim can only be heard if it independently satisfies diversity JDX (complete diversity + AIC is met)

Question 20

Crossclaims, diversity, and supplemental JDX

Answer 20

• a cross claim is a claim filed by a P against another P, or a D against another D.
• A federal court in diversity JDX has supplemental JDX over a cross-claim if the cross-claim arises out of the same transaction or occurrence as the original claim

Question 21

Collateral order doctrine

Answer 21

The doctrine of collateral order allows a party to appeal interlocutory rulings if the ruling decides a claim or issue
- that is separable from and collateral to the merits of the case
- involves a serious and unsettled legal question AND
- would be effectively unreviewable if the court waited until final judgment to hear the claim or issue

Question 22

mandamus review

Answer 22

• under mandamus review, a court of appeals can immediately review an order that is an abuse of judicial authority (e.g., orders beyond TC discretion, orers that violate a mandatory duty of TC)
• such review does not extend to all orders that constitute an error of law

Question 23

Interlocutory order

definition

Answer 23

An interlocutory order is an order that is provisional, interim, temporary, or non final

Question 24

Appealability of interlocutory orders

Answer 24

• although most interlocutory orders are not immediately appealable, certain orders are reviewable as a matter of right, including
• an order granting, modifying, refusing, or dissolving an injunction
• an order appointing or refusing to appoint a receiver and
• a decree determining the rights and liabilities for parties in admiralty cases

Question 25

Effect of a default judgment

Answer 25

• a default judgment has a preclusive effect if the court had valid personal and subject matter JDX
• Generally, a party is barred from asserting defenses or compulsory counterclaims that could have been raised in the original action

Question 26

Collateral estoppel (issue preclusion)

Answer 26

Collateral estoppel precludes the re-litigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim

Question 27

Barring an issue under collateral estoppel

Answer 27

To bar an issue under collateral estoppel,
- the issue sought to be precluded must be the same as that involved in the prior action (facts and law identical)
- the issue must have been actually litigated in the prior action
- the issue must have been determined by a valid final judgment on the merits
- the determination of the issue must have been essential to the prior judgment

Question 28

Res judicata

Answer 28

Res judicata provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action

Question 29

Barring a claim under res judicata

Answer 29

To bar a claim under res judicata,
- the original claim must have resulted in a final judgment on the merits
- the original and later filed causes of action must be sufficiently identical (i.e., related to the same transaction or occurrence); and
- the claimant and defendant must be the same (and in the same roles) in both the original and later filed action, or privity exists between them

Question 30

Final judgment rule

Answer 30

The federal courts of appeals have JDX over appeals from final judgments of the district courts

Question 31

what is a final judgment

Answer 31

A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment

Question 32

Motion for a new trial

Answer 32

The court may, on motion, grant a new trial for any of the reasons for which new trials have traditionally been granted

Question 33

Reasons new trials are generally granted

Answer 33

Reasons courts have traditionally granted new trials include
- an error made at trial that renders the judgment unfair
- newly discovered evidence that existed at the time of the trial was excusably overlooked and likely would have altered the outcome of the trial
- prejudicial misconduct of counsel, a party, the judge, or juror
- a verdict that is against the clear weight of the evidence
- a verdict based on false evidence such that a new trial is necessary to prevent injustice or
- a verdict that is excessive or inadequate

Question 34

Excessive verdict – options the court has

Answer 34

If a verdict is excessive, the court may order a new trial OR offer the plaintiff remittur, which allows the plaintiff to choose beteween a lesser award or a new trial

Question 35

JMOL

Answer 35

A judgment as a matter of law (JMOL) may be filed by either party after the close of the nonmoving party’s evidence OR the close of all evidence

Question 36

standard for granting a JMOL

Answer 36

• the motion will be granted when, viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party

Question 37

Renewed JMOL

Answer 37

• A renewed JMOL may be filed no later than 28 days after the entry of judgment
• it may only be raised if a JMOL was previously filed

Question 38

Granting a RJMOL

Answer 38

• a RJMOL will be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party
• a party is generally limited to those issues raised in the earlier JMOL

Question 39

When may a MSJ be filed

Answer 39

A motion for summary judgment may be filed **at any time until 30 days **after the close of discovery

Question 40

When may an MSJ be granted

Answer 40

A MSJ must be granted, if, from the pleadings, affidavits, and discovery materials on file, when viewing the evidence in the light most favorable to the nonmoving party, it appears that
- no genuine dispute of material fact exists; AND
- the moving party is entitled to a judgment as a matter of law

Question 41

12(b)(6) motions

Answer 41

A 12(b)(6) motion asserts that the plaintiff failed to state a claim upon which relief can be granted

Question 42

When can 12(b)(6) be raised

Answer 42

The defense of failure to state a claim may be raised in a pleading, a motion for judgment on the pleadings, or at trial

Question 43

How 12(b)(6) is analyzed generally

Answer 43

Under rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable or fails to allege facts sufficient to support a cognizable claim.

Question 44

2-step analysis for 12(b)(6) claims

Answer 44

Courts apply a 2-step determination in making this determination
- First, the court must identify and reject legal conclusions unsupported by factual allegations; then
- Second, the court should assume that the well-pleaded factual allegations are true, and, drawing on the court’s experience and common sense, determine whether the allegations plausibly give rise to an entitlement of relief

Question 45

When can a motion for failure to join an indespensible party by raised

Answer 45

The defense of failure to join an indespensible party may be raised in a pleading, motion for judgment on the pleadings, or at trial

Question 46

Failure to preserve ESI

Answer 46

If ESI that should have been preserved in anticipation of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be replaced through additional discovery, the court
- upon finding of prejudice may order measures no greater than necessary to cure prejudice; OR
- Upon finding the party acted with intent to deprive another party of information, the court may presume it was unfavorable, instruct the jury that they may presume that, dismiss the action. OR enter a default judgment

Question 47

Rule 11b signature

Answer 47

• Every pleading, written motion, or other paper served must be signed by at least one attorney of record in their name or by a party if they are unrepresented
• The paper must state the signer’s address, email, and telephone
• The court MUST strike an unsinged paper unless the omission is promptly correct after being called to their attention

Question 48

11b representations to the court

Answer 48

By presenting a paper to the court, an attorney/unrepresented party certifies that to the best of their knowledge, information, and belief formed after a reasonable inquiry, that
- it is not presented for any improper purpose
- the claims, defenses, and legal contentions are warranted by existing law or by nonfrivolous argument for changing/extending the law
- the factual contentions have evidentiary support or, if so identified, will likely have support after reasonable opportunity for furhter investigation or discovery; AND
- the denials of factual contentions are warranted on the evidence, or if identified, are reasonably based on belief or lack of information

Question 49

Opportunity to correct under rule 11

Answer 49

• Before a party may seek sanctions under rule 11, the party must serve on the opposing party a motion that describes the specific conduct that violated the rule
• The opposing party must be given 21 days to withdraw or correct their pleading
• If the 21 day period passes, and pleading is not corrected, motion for sanctions may be filed with the court

Question 50

Rule 11 sanctions

Answer 50

• the court (on motion or on its own) may issue sanctions for failing to comply with Rule 11
• Sanctions may include nonmonetary directives, an order to pay penalty into court, or if imposed on motion, an order directing payment to the movant for part or all of reasonable attorney’s fees and other expenses

Question 51

Imposing sanctions under R11

Answer 51

• sanctions may be imposed on the defendant’s attorney, the law firm, and defendants
• monetary sanctions for asserting an unwarranted legal contention may NOT be imposed on defendants – only the attorney or lawfirm

Question 52

purpose and discretion in awarding sanctions

Answer 52

• The court has considerable discretion in imposing sanctions
• purpose of sanctions should be to deter future conduct by this lawyer or others

Question 53

Failure to participate in discovery plan

Answer 53

If an attorney fails to participate in good faith in the development and submission of a proposed discovery plan, the court may, after providing an opportunity for a hearing, order the party or attorney to pay reasonable expenses, including attorney’s fees

Question 54

pretrial conference sanctions

Answer 54

The court may direct counsel and unrepresented parties to appear for pretrial conferences. The court may issue sanctions if counsel or a party
- fails to appear
- fails to participate in good faith; or
- fails to obey a pretrial conference order

Question 55

Severest sanction for pretrial conference violations

Answer 55

Dismissal of an action is a severe sanction, and generally is only appropriate when a party’s conduct is serious, repeated, extreme, or otherwise inexcusable

Question 56

Attorney work product doctrine

generally

Answer 56

The work-product doctrine protects materials prepared by an attorney or client in anticipation of litigation from discovery by opposing counsel

Question 57

When is work product not protected

Answer 57

Materials prepared in anticipation of litigation are not protected from disclosure to opposing counsel IF
- the materials are otherwise unavailable
- there is a substantial need for the materials; AND
- the materials cannot be obtained without substantial hardship

Question 58

what work product is never ever ever discoverable

Answer 58

A writing that reflects an attorney’s impressions, conclusions, opinions, legal research, or theories is NEVER discoverable

Question 59

What does a party who withholds info they believe is privileged have to do

Answer 59

When a party withholds information because they believe it is privileged or covered by the work-product doctrine, the party MUST make the claim expressly and describe the nature of the documents in a manner that will enable other parties to asses the applicability of the privilege or work-product doctrine

Question 60

Duty to preserve evidence

Answer 60

• When it can be reasonably anticipated that an action will be filed, all parties have a duty to preserve potentially relevant evidence
• evidence includes all information, not just hard copy documents, but also ESI on any medium and any electronic format

Question 61

How can interrogatories be served

number and to whom

Answer 61

• Any party may serve no more than 25 written interrogatories on any other party
• Interrogatories may NOT be used on nonparties

Question 62

Scope of interrogatories

Answer 62

Interrogatories may relate to any non privileged matter that is
- relevant to any party’s claim or defense; AND
- proportional to the needs of the case

Question 63

Answers and objections

Answer 63

• interrogatories must be answered fully and separately under oath by the party to whom they are directed, unless the responding party objects by stating specific grounds
• responding party must serve answers and any objections within 30 days after being served with the interrogatories

Question 64

Depositions

Answer 64

• A party may take the deposition of **any party **or nonparty witness (with a subpoena) at any time after the party has made its initial disclosures
• without leave of court, Ps and Ds, each as a group, are limited to 10 depositions by oral or written examination
• An oral deposition is limited to 1 day of 7 hours, unless the parties agree otherwise or court orders otherwise

Question 65

notice for depositions

Answer 65

A party who seeks an oral deposition of a person must give reasonable written notice to every other party, stating the time and place of deposition and, if known, the deponent’s name and address

Question 66

Scope of discoverable information

Answer 66

Generally, discovery is permitted to any nonprivileged matter that is
- relevant to the party’s claim or defense; AND
- proportional to the needs of the case

Question 67

Limits on discovery

Answer 67

On motion or on its own, the court is required to limit the frequency or extent of discovery if the court determines that
- discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient or less expensive or
- the party seeking discovery had ample opportunity to obtain the information by discovery in the action

Question 68

Timing of initial disclosures

Answer 68

Each party MUST make certain initial disclosures, even if an opposing party does not ask for such information, within 14 days after the parties’ rule 26(f) conference

Question 69

What is included in initial disclosures

Answer 69

Initial disclosures include
- names, addresses, and phone numbers of individuals likely to have discoverable information tha the disclosing party may use to support its claims, unless the use would be solely for impeachment
- copies or descriptions of documents, ESI, and tangible things that the disclosing party may use to support its claims or defenses, unless solely for impeachment;
- computation of damages and copies of materials that’s based on; AND
- copies of insurance agreements under which an insurer MIGHT be liable for all or part of a judgment

Question 70

26(f) conference

Answer 70

The parties must confer as soon as is practicable to
- consider claims and defenses, possibility of settlement, initial disclosures, and a settlement plan; AND
- submit to the court a proposed discovery plan addressing the timing and form of required disclosures

Question 71

Class action

Answer 71

A class action is a type of suit where one of the parties is a group of people who are represented collectively by a member or members of that group

Question 72

When is a class action proper?

Answer 72

• the class is so numerous that joinder of all members is impracticable
• There are questions of **law or fact common ** to the class
• the named parties’ interests are typical of the class; AND
• the named parties will adequately represent the interests of the absent members of the class

Question 73

When will a class be certified

Answer 73

Once the four requirements (numerousity, commonality, typicality, and adequacy) are met, a class will be certified if
- separate actions would create a risk of inconsistent results or impair the interests of unnamed parties
- injunctive or declaratory relief is appropriate for the class as a whole; OR
- common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication

Question 74

Intervention

Answer 74

Intervention permits a nonparty to intervene in an action

Question 75

Intervention as of right

Answer 75

Intervention is available as of right when the applicant claims an interest in the property or transaction that is the subject matter of the action, AND the disposition of the action without him would impair his ability to protect the interest

Question 76

Permissive intervention

Answer 76

• Intervention is permissive when the applicant’s claim or defense and the main action have a question of law or fact in common.
• Permissive intervention must be supported by its own jurisdictional grounds and is discretionary with the court

Question 77

Interpleader

Answer 77

Interpleader allows a P or D to initiate a lawsuit in order to compel to or more other parties to litigate a dispute

Question 78

interpleader by P

Answer 78

Persons with a claim that might expose a P to double or multiple liability may be joined as Ds and required to interplead.

Question 79

wheni s joinder for interpleader by P proper

Answer 79

Joinder for interpleader is proper even though
- the claims of the several claimants, or titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; OR
- the plaintiff denies liability in whole or in part to any of the claimants

Question 80

interpleader by a D

Answer 80

A D exposed to similar liability may seek interpleader through a crossclaim or counterclaim

Question 81

permissive joinder of parties

Answer 81

Parties may join as plaintiffs or Ds when
- some claim is made by each P and against each D that arises out of the same transaction or occurrences; AND
- there is a question of law or fact common to the parties

Question 82

Compulsory joinder

Answer 82

A P must join an absent party or face dismissal of lawsuit if
- court has personal JDX over absentee
- absentee’s presence would not destroy SMJ; AND
- either (i) complete relief cannot be accorded in their absence, OR (ii) the absentee has such an interest that a decision in his absence will impede his ability to protect the interest or leave any of the other parties subject to a risk of multiple/inconsistent obligations

Question 83

Relation back doctrine

Answer 83

The relation back doctrine determines whether an amendment to a pleading will relate back to the date of the original pleading.

Question 84

relation back for new claim

Answer 84

if the pleading is amended to include a new claim or defense, the amendment will relate back to the date of the original pleading if the new claim or defense arose out of the same transaction or occurrence set out in the original pleading

Question 85

relation back with new parites

Answer 85

If the pleading is amended to include a new party or change their name, the amendment will relate back if
- it asserts a claim that arose out of the same transaction or occurrence set out in the original pleading
- the party receives notice within 90 days after filing the original complaint such that they will not be prejudiced; AND
- the party to be brought in by amendment knew or should have knwon that the action would have been brought against him, but for a mistake concerning their identity

Question 86

Removal

Answer 86

Removal allows the D to move a case from state court to federal court if the case could have been brought originally in federal court

Question 87

requirements for removal

generally

Answer 87

Removal must be sought
- by the D ONLY
- within 30 days of learning the grounds for removal

Question 88

time limits on removal

Answer 88

A D cannot remove his case after one year from the commencement of the action, unless the P acted in bad faith to make it nonremovable

Question 89

removal for federal Q cases

Answer 89

the D may remove the case to federal court if the well pleaded complaint discloses that the claim is based on federal law

Question 90

diversity and removal

Answer 90

The D may remove the case to federal court if
- complete diversity is present
- the AIC exceeds 75k; AND
- the action is brought in a state where NO defendant is a citizen

Question 91

Personal JDX requirement

Answer 91

A court MUST have personal JDX in order to adjudicate the rights and liabilities of a defendant

Question 92

traditional bases for personal JDX

Answer 92

• domicile
• physical presence
• consent
• waiver

Question 93

PJ based on domicile

Answer 93

Domicile will be satisfied if the D is domiciled in the forum state. If the D is a corporation, it must be at home in the forum state (e.g., state of incorporation + PPOB)

Question 94

PJ based on physical presence

Answer 94

Service of process on a D while he is physically present in the forum state will satisfy this UNLESS he is there only to answer summons or was brought there by force or fraud

Question 95

PJ based on consent

Answer 95

out of state defendants may consent to personal JDX

Question 96

personal JDX by waiver

Answer 96

• Unlike SMJ, lack of personal JDX can be waived by the D
• A D waives PJDX by substantial participation in the merits before raising the objection (e.g., making a general appearance)

Question 97

Long arm statutes

Answer 97

If none of the traditional bases for PJDX are satsfied, PJ may still be obtained by using a state long arm statute

Question 98

requirements for long arm statutes

Answer 98

These statutes require that minimum contacts exist between the D and the forum state

Question 99

When do minimum contacts exist

Answer 99

Sufficient minimum contacts exist when
- general or specific JDX is present; and
- the exercise of PJ does NOT offend traditional notions of fair play and substantial justice

Question 100

things courts will consider to see if traditional notions of fair play and substantial justice are satisfied

Answer 100

• convenience for D
• whether forum state has legitimate interest in providing redress
• whether P’s interest in obtaining relief is proper
• the interstate judicial system’s interest in efficiency; AND
• shared interest of the several states in furthering social policies

Question 101

General JDX

Answer 101

• general JDX is present when the D is essentially “at home” in the forum state.
• when general JDX is present, the D can be sued on ANY claim

Question 102

specific JDX

Answer 102

specific JDX gives courts JDX over out of state defendants for their specific contacts with the forum state. the claim MUST arise out of the D’s specific contact with the forum state

Question 103

When is specific JDX present

Answer 103

specific JDX is present if
- the D purposefully availed himself of the benefits of the forum state
- the D knew or reasonably should have anticipated that his activities in the forum state made it foreseeable that he may be hailed into court there

Question 104

specific JDX for stream of commerce cases

Answer 104

generally, there will be specific JDX over a D if the D
- places a product in the stream of commerce for the forum state; AND
- commits some other act to show intent to serve the forum state

Question 105

passive website

Answer 105

• A passive website is one that is used for information purposes rather than online sales or commerce
• a passive website is generally not enough to establish general JDX. it may be sufficient for specific JDX if the D is targeting readers in the forum