Civ Pro

Question 1

Prelim Injunction

Answer 1

1 - likelihood of success on merits

2 - irreperable harm if not injunction

3 - balance of hardships

4 - public policy considerations

Question 2

Elements of complaint

Answer 2

1 - short and plain statement of grounds for court’s SMJ

2 - short and plain statement of claim establishing entitlement to relief

3 - demand for relief

Question 3

When can party amend pleading?

Answer 3

As a matter of right:

1 - within 21 days if no responsive pleading is required; OR

2 - if responsive pleading is required, within 21 days of receiving responsive pleading or 12(b) motion, whichever earlier.

A court should freely give leave to amend when justice so requires

Question 4

Plaintiff can permissive joinder (as a plaintiff or defendants)

Answer 4

1 - same transaction or occurrence; and

2 - common question of law or fact

Question 5

Permissive Joinder and Diversity Jurisdiction

Answer 5

NO party can be joined when it destroys diversity.

However, AIC can be less than 75K when multiple plaintiff’s against single defendant (yes supp juris). This is because P can join only if it is from the same transaction or occurrence, and therefore supp jurisdiction is appropriate

AIC under 75K NOT satisfied when one plaintiff against multiple defendants (no supp jurisdictions). This is because it is the plaintiff seeking to join the defendants. If a P is seeking supp jurisdiction by adding parties, it must separately meet SMJ requirements.

Question 6

When must an objection to PJ, Venue, insufficient process or service of process occur?

Answer 6

1 - pre-answer motion, or if no pre-answer motion,

2 - the answer (or an answer amended as a matter of right)

Question 7

5 bases for in personam jurisdiction, first three general, fourth one specific, not sure about attachment

Answer 7

1 - physical voluntary presence in state (served while in state)

2 - Domicile

3 - Consent (can be via K)

4 - Long-arm statute (specific)

5 - attachment

Question 8

Compulsory counterclaim

Answer 8

Must be plead if:

1 - arises out of same T/O as plaintiff’s claim

2 - it does not require adding another party over whom the court does not have SMJ

Failure to bring? Claim preclusion

Question 9

Three types of mandatory disclosures

Answer 9

1 - initial disclosures

2 - expert witness disclosures (90 days before trial)

3 - pre-trial disclosure (30 days before trial) - includes witnesses to testify. depositions and documents to be used.

Question 10

When must demand for jury trial be made?

Answer 10

Serving the OTHER PARTY Within 14 days of last pleading to which the issue to be tried by the jury (legal issue) was served. Written.

Must also file with court within a reasonable amount of time after service.

Disputes over $20

Question 11

Default judgement - preclusive effect

Answer 11

Has claim preclusion

No issue preclusion (was not litigated)

Question 12

When must summons and complaint be served?

Answer 12

Plaintiff must serve defendant within 90 days of complaint being filed

Question 13

Removal when multiple defendants

Answer 13

All defendants must consent to removal

EXCEPTION: federal question claims, only those defendants against whom the federal question is brought must consent.

have 30 days from receipt of initial pleading

Question 14

Standard for motion for summary judgment

Answer 14

no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.

In other words, no reasonable jury could find for the non-moving party.

Burden of proof on the moving party. Once prima facie, burden to to show existence of genuine issue of fact shifts to nonmoving party.

Must be made within 30 days after the close of discovery (nonmovant given sufficient time to obtain discovery)

Question 15

12(b)(6) Motion to Dismiss

Answer 15

Should be dismissed if it (1) fails to state a cognizable legal theory that entitles them to relief or (2) fails to allege facts for cognizable claim.

1 - well pleaded facts true (plausible case?)

2 - disregard legal conclusions

3 - resolve all doubts in favor of plaintiff

Question 16

When can a motion for judgment as a matter of law be made?

Answer 16

Before it is submitted to jury (but after nonmovant has presented its case), but after the trial has begun.

If you want to file a renewed motion for judgment as a matter of law, you must file a motion for judgment as a matter of law.

Question 17

Claim preclusion (res judicata) elements

Answer 17

1 - valid and final judgment on the merits

2 - sufficiently identical causes of action (if they arise out of same transaction or occurrence); and

3 - sufficiently identical parties

Question 18

Corporation domicile

Answer 18

1 - ALL states in which it is incorporated

2 - THE state in which it has its principal place of business (only one)

Question 19

Well-pleaded complaint and federal question jurisdiction

Answer 19

Only will consider the claims made in plaintiff’s complaint, not anticipated defenses, answers, or counter-claims

Question 20

Aggregation of Claims

Answer 20

One plaintiff, one defendant - aggregate them all

One plaintiff, multiple defendants - NO aggregation (unless jointly liable)

Multiple plaintiffs, one defendant - NO aggregation, unless the plaintiff’s are asserting an undivided interest. but supplemental jurisdiction over plaintiff’s claims probably.

Question 21

federal question scope

Answer 21

Express or implied under statute; OR

Federal issue (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress

Question 22

Counterclaims and AIC requirements

Answer 22

Permissive Counterclaims - must separately meet the AIC

Compulsory Counterclaims - need not meet the AIC

Question 23

Supplemental Jurisdiction and Diversity

Answer 23

Counterclaims - cannot bring in party that destroys diversity. However, compulsory need not meet AIC, but permissive must meet AIC

Joinder - addition of plaintiff cannot violate diversity (but not required to satisfy AIC)

Cross-claims - if arises out of same T/O, then no need to meet AIC or diversity

Question 24

Removal based on Diversity jurisdiction

Answer 24

D cannot remove if any of the Ds is a resident of the state in which the action was filed.

Cannot be removed more than 1 year after action commenced

Question 25

Documents a court can consider for - Motion to Dismiss for failure to state a claim vs. Motion for summary judgment

Answer 25

MTD - limited to content of pleadings (complaint and attachments to complaint) and matters of public record

MSJ - sworn materials in the record - depositions, affidavits, etc.

Question 26

When is supplemental jurisdiction based on diversity NOT allowed

Answer 26

If supplemental claim:
1 - destroys diversity

2 - is not over 75K and made (1) by plaintiff, (2) against parties added through joinder, interpleader, intervention, or compulsory joinder

Question 27

Class action based on diversity jurisdiction

Answer 27

Only the named representatives need to be diverse.

At least one P must be over 75K AIC

Question 28

What can a judge NOT do in granting a judgment as a matter of law (or MSJ)

Answer 28

Not evaluate the weight of the evidence

Standard is whether there is legally sufficient evidence to support the verdict.

Question 29

Appellate Standards of Review

Answer 29

• Review of a trial court’s factual findings—clearly erroneous
• Review of legal rulings—de novo
• Review of discretionary rulings (evidentiary, injunctions)—abuse of discretion
• Review of a jury verdict—varies among jurisdictions, most strict is if there is no evidence to support jury verdict

Question 30

When is removal by defendant prohibited?

Answer 30

In (1) an action based on diversity and (2) the defendant is a resident of the state in which the case was filed.

Question 31

For collateral estoppel to apply, who needs to be a party to the first action?

Answer 31

It is the party against whom the preclusion is being sought (usually the defendant).

The defendant.

The plaintiff can use offensive collateral estoppel even if not a party to a prior action.

Question 32

domicile for individuals

Answer 32

where they reside and intend to remain indefinitely

Question 33

Due Process Requirements for Personal Jurisdiction

Answer 33

MINIMUM CONTACTS:
Purposeful Availment - reasonably foreseeable?

Relatedness - relation with contacts and suit (specific vs. general jurisdiction)

FAIRNESS: does not offend traditional notions of fair play and substantial justice.
-interest of forum state in deciding matter
-burden on defendant
-efficiency
-shared interests of the state

Question 34

When is venue appropriate

Answer 34

1 - A district in which any defendant resides, if every defendant lives in that state

2 - where a substantial part of the events giving rise to the claim

3 - if neither of the above, any district where defendant is subject to PJ

Question 35

Relation back (new claim and new parties)

Answer 35

New Claim
If original claim was timely filed AND the facts giving rise to the new claim were of the same transaction or occurrence, then relate back

New parties
same transaction or occurrence AND defendant received notice of the claim within 90 days of the original complaint being filed AND defendant knew or should have known that it could be brought against them but for a mistake

Question 36

When is a party necessary?

Answer 36

1 - Court cannot afford complete relief without party

2- Danger that party would be harmed if not joined

3 - risk of inconsistent judgment

Indispensable is kind of same factors, but focus is on extent and whether P can be given complete relief.

A joint tortfeasor is NOT a necessary party

Question 37

When is a party indispensable?

Answer 37

1) Extent to which judgment would prejudice the parties in the person’s absence;
2) Extent to which prejudice could be reduced or avoided by protective provisions;
3) Whether a judgment rendered would be adequate; and
4) Whether the plaintiff would have an adequate remedy if action were dismissed for
nonjoinder

Question 38

Work-Product Privilege

Answer 38

protects material prepared in anticipation of litigation

NOT discoverable UNLESS
1- information is not reasonably available by other means; AND
2- the other party would be substantially prejudiced if not able to get.

A party can NEVER discover the mental thoughts and opinions about the case

Question 39

Duty to preserve electronic information

Answer 39

Once there is anticipation of litigation, must make reasonable efforts to preserve. If violated:

• instruct jury that they can presume that info is unfavorable
  -they can even dismiss the case

Question 40

Elements for Collateral Estoppel

Answer 40

1) Same issue was actually litigated;
2) Final valid judgment on the merits;
3) Issue was essential to the judgment; and
4) The party against whom issue preclusion is asserted must have been a party in the prior
lawsuit or represented in that lawsuit (a successor-in-interest)—must be fair for new
plaintiff to assert same issue (prior law required a mutuality of parties)

In determining claim preclusive effect, use law of state in which original suit was decided.

Question 41

Bulge Rule

Answer 41

PJ, IF:

1 - added through impleader (third party practice) or required joinder

2 - served within 100 miles of court

Question 42

Special venue rule for nonresident of the US

Answer 42

ANY judicial district

Question 43

When does a losing party need to file a renewed motion for JMOL?

Answer 43

Within 28 days of entry of judgment

Question 44

Common issues that are procedural and substantive (Erie)

Answer 44

Procedural - jury size (anything in FRCP)

Substantive - Statute of limitations, burden of proof, conflict of law, affirmative defenses

Question 45

Class Action Requirements

Answer 45

Numerosity – the class is so numerous that joining all the members as named plaintiffs is impracticable (usually met when there are over 40 members)

Commonality – the class shares common questions of law or fact

Typicality – the named plaintiffs’ claims are typical of the claims of the class

Adequacy – the named plaintiffs will fairly and adequately protect the interests of the class

Question 46

Class Action Fairness Act (CAFA)

Answer 46

1 - 100+ plaintiffs
2 - minimal diversity
3 - over $5 million when the claims are aggregated

Question 47

Is the failure to deny allegations as to amount of damages deemed an admission?

Answer 47

NO

Question 48

Involuntary vs. voluntary dismissal

Answer 48

Involuntary dismissal is an adjudication on the merits, meaning it is dismissal with prejudice.

voluntary dismissal - the first one is usually without prejudice (unless otherwise stated). The second one, however, will be with prejudice (“two-dismissal” rule), even if first is in state court.

Question 49

How many preemptory challenges?

Answer 49

Three

unlimited opportunities to strike with cause

Question 50

When is plaintiff required to reply to defendant’s answer?

Answer 50

Only in the rare circumstances that a court orders it to do so.

If it does not, then any answer to plaintiff’s complaint will be deemed denied.

If court does order, then a plaintiff’s failure to reply constitutes admission.

Question 51

When is a judgment appealable?

Answer 51

If it is a final judgment.

With multiple parties, if judgment is entered against one party, it will only be immediately appealable if the court determines that there is no just reason for delay.

Generally, must be filed within 30 days of entry of judgment.

Question 52

Impleader

Answer 52

Defendant is allowed to implead a third party if it might be liable to all or part of the claim by plaintiff against it,

The plaintiff can then assert a third-party claim against the third-party defendant if (1) it rises out of the same transaction or occurrence, and (2) it independently satisfies SMJ.

Must be made within 14 days of original answer OR after this deadline if it obtains leave of court to do so.

Question 53

How to satisfy service of process requirements?

Answer 53

Individual -
- deliver personally
- deliver to defendant’s dwelling and leave with a person of suitable age and discretion.

Corporation -
-agent or officer

OR, by following service of process rules in state in which court sits, or state where served (regardless of type of SMJ)

Foreign Country? any manner reasonably calculated to give notice, but not personally if corporation.

CONSTITUTIONAL REQUIREMENT - reasonably calculate to give notice and allow opportunity to reject.

Question 54

Appealability of orders denying class certification

Answer 54

Petition to appeal must be filed within 14 days and the appellate court then has discretion whether to permit the appeal.

The district court’s proceedings are stayed pending appeal ONLY IF ordered by the district court or appellate court.

Question 55

Eerie - if it is unclear whether law is procedural or substantive, what is the analysis?

Answer 55

Ask if federal law directly addresses the issue? (is there a conflict? If so, then we proceed, if not, then we apply both federal and state law)

If yes, apply federal law if it is arguably procedural and does not affect substantive right.

If no, apply state law if state law is outcome determinative (failure to apply would result in forum shopping or inequitable administration of laws) and there is no countervailing federal policy. If not, apply federal common law.

Question 56

When can clerical mistakes be corrected?

Answer 56

A clerical mistake can be corrected on the court’s own initiative or by party’s motion only BEFORE appeal is docketed.

Once appeal is docketed, district court must obtain leave of appellate court before correcting.

Question 57

Change of Venue Rule

Answer 57

(1) if original venue is proper
- transfer to another court is proper if venue is allowed in another court originally or other parties consent
-DJ: apply law of transferor state (unless valid forum selection clause)
-FQ: do not apply transferor law

(2) if original venue is improper
-either dismiss case or transfer case to court where venue is proper
-DJ: apply law of transferee state
-FQ: do not apply transferor law

Question 58

Effect of Forum-Selection Clause

Answer 58

Forum selection clauses should be upheld in all but the most exceptional circumstances.

Meaning: transferor seeking change in venue to forum selection clause should probably win.

Meaning: if transfer of venue based on forum selection clause, then transferee court law should apply (exception to general rule)

Question 59

Service on corporations

Answer 59

must be made to officer, managing officer, or agent authorized by law to receive service

Question 60

Intervention

Answer 60

As of right:

-have an interest
-action may affect their interest
-interest not adequately represented

Permissive:
-conditional right under statute; OR
-claim or defense related to original action

Question 61

Remittur and Additur

Answer 61

Additur is not premitted in federal court, only remittur

Question 62

General jury verdict with answers

Answer 62

If verdict is inconsistent with answers, judge can order new trial, re-instruct jury, or enter judgment in accordance with answers

If verdict and answers are inconsistent with each other, judge can order new trial or re-instruct jury.

Question 63

Federal Torts Claim Act (venue)

Answer 63

Venue is proper (1) where the plaintiff resides or (2) where act or omission complained of occurred

Question 64

Waiver of service modified timelines

Answer 64

Give D 30 days to respond to waiver request

If so, D need not file answer until 60 days after request was sent

Question 65

Domicile of Legal Representative

Answer 65

Same state as the one being represented - testator, minor, incompetent

Question 66

When should a motion for new trial be granted?

Answer 66

to prevent miscarriage of justice - if new evidence is discovered that existed at time of trial but was excusably overlooked.

Question 67

Types of Class Action

Answer 67

Risk of Prejudice - separate actions create risk (notice optional)

Final Equitable Relief - seeking injunctive relief (notice optional)

Common legal/factual question - common question predominates individual questions (notice required)

Question 68

When must a party respond to an amended pleading?

Answer 68

The later of the following:

-14 days form service of amended pleading; OR

-21 days after service of original pleading

Question 69

11(b) Certification

Answer 69

Pleading, motion, or other document signed by attorney certifying that, based on knowledge, information, or belief, after reasonable inquiry into facts:

-doc presented with proper purpose
-claims, defenses, and legal contentions are supported by law or nonfrivolous argument for changing the law
-facts have or will have evidentiary support AND
-fact denials are warranted by evidence or lack of knowledge/information

Safe harbor of 21 days if other party moves for these sanctions

Plaintiffs Can’t File Frivolously (PCFF)

Question 70

What is the court’s role concerning jury instructions?

Answer 70

Prior to closing argument, the court must inform parties of instructions it intends to give

Parties may object on record and outside of jury’s hearing

Question 71

Is an insurance agreement discoverable?

Answer 71

Yes, in fact it is subject to mandatory disclosure.

This is different than the collateral source rule, because that is an evidentiary rule during trial, not for discovery.

Question 72

Standard for obtaining relief from judgment

Answer 72

within 1 year: mistake, surprise, neglect,
newly discovered evidence that existed at time of trial
fraud

Within reasonable time: No jurisdiction, judgment satisfied or discharged

Question 73

11(b) Sanctions

Answer 73

Limited to what will deter the repetition of the misconduct

Generally, will be against ATTORNEY, if it is violation of legal contentions not warranted by law, not against PARTY

Question 74

Stateless person

Answer 74

If a person is a non-citizen present in the US, or a US citizen domiciled in a foreign country, these are stateless persons and diversity jurisdiction is NOT allowed.

Question 75

For the purposes of venue, where does a defendant “reside”?

Answer 75

Individual - same as domicile for PJ

Entity - any judicial district in which the D is subject to the court’s PJ

Question 75

When can a party request for polling of the jurors?

Answer 75

After the jury returns a verdict but before the jury is dismissed,

a court MUST poll the jurors individually if a party requests.

Question 76

What happens to the supplemental claims when the original anchoring claim is dismissed?

Answer 76

The court has discretion (may) to decline to hear the supplemental claim. meaning they can still hear the supplemental claim.

Question 77

FRCP jury requirements

Answer 77

Must begin with at least 6 and no more than 12 jurors.

Verdict must be unanimous and rendered by at least 6 jurors UNLESS parties consent otherwise.

Question 78

Interrogatories

Answer 78

Up to 25 - only on a party

respond within 30 days of being served (or 30 days after initial planning conference)

Can either answer, or specify business records from which the answer can be derived IF:
1- burden is substantially the same for requesting party
2 - responding party provides opportunity to examine and copy records.

Question 79

Venue and Removal

Answer 79

When removal is exercised, it is to the district court of the district where the state action is pending. Venue is proper, even if it would not be proper originally. Removal overrides venue.

Question 80

When are expert reports from expert not testifying at trial discoverable?

Answer 80

Upon a showing of exceptional circumstances that party cannot obtain that information elsewhere.

Question 81

Temporary Restraining Order

Answer 81

Must show:
(1) immediate and irreparable injury without TRO
(2) attorney certified efforts to give notice to the other side (or why notice should not be required)

Question 82

Supplemental Jurisdiction discretionary factors

Answer 82

(i) raises a novel or complex issue of state law;

(ii) the supplemental claim substantially predominates over the claims within original federal jurisdiction;

(iii) all of the claims within the court’s original jurisdiction have been dismissed; or

(iv) in exceptional circumstances