CIV PRO

Question 1

PROCEDURE (TO REMAND) AFTER REMOVAL

Answer 1

Procedure AFTER removal

Of note:
A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446 (a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.

Question 2

CIV PRO VOCAB 1

Subject Matter Jurisdiction
Personal Jurisdiction
Venue
Joinder
Claim Preclusion / Issue Preclusion
Article III
Courts of Original Jurisdiction
Pleading
Answer
Trial Courts

Answer 2

Subject Matter Jurisdiction: authority to hear the type of dispute
Personal Jurisdiction: power to force defendant to appear in court
Venue: which court within a court system can hear a case
Joinder: who can be made parties to a single case and the scope of claims that can be made
Claim Preclusion / Issue Preclusion: limits relitigation of claims that were previously resolved
Article III: grants Congress power to establish Federal Courts
Courts of Original Jurisdiction: trial courts
Pleading: filed to commence litigation
Answer: defendant’s response to pleading
Trial Courts are where cases are filed, litigated, tried

Question 3

CIV PRO VOCAB 2

Appeal by Permission / Discretionary Appeal
Certiorari
Article III, § 2, par. 1
Concurrent Jurisdiction
Forum shopping
Substantive Law
Procedural Law
Procedural Posture
Notice v. Motion
Demurrer

Answer 3

Appeal by Permission / Discretionary Appeal: a state’s highest court decides whether to hear an appeal or not
Certiorari: agreement to hear an appeal from a lower court
Article III, § 2, par. 1: which types of cases can be heard by a Federal Court. Most common: federal question and diversity jurisdiction
Concurrent Jurisdiction: when state and federal courts could both hear a case, Congress can make it exclusive to federal courts
Forum shopping: choosing the most ideal court to hear a case with concurrent jurisdiction
Substantive Law: laws that govern society (criminal, property, torts…)
Procedural Law: the laws that govern how the courts work; affects society significantly by guiding the access to justice/courts
Procedural Post.: summary of how a case arrived in a particular court
Notice v. Motion: a notice is a party exercising their right; a motion is a party asking permission to do something
Demurrer: a motion to dismiss based on an alleged lack of legal adequacy, as if defendant saying, “so what?” to the allegations

Question 4

DIVERSITY JURISDICTION REQUIREMENTS

Answer 4

Diversity or Citizenship; Amount in Controversy; Costs
(Federal) District courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds $75,000, exclusive of interest and costs, and is between
Citizens of different states
Citizens of a state and citizens or subjects of a foreign state (does not count permanent residents as foreign citizens)
Citizens of different states and in which citizens or subjects of a foreign state are additional parties
A foreign state as plaintiff and citizens of a state or of different states

Question 5

Federal Question

Answer 5

The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States

Question 6

CORPORATION STATE CITIZENSHIP

Answer 6

a corporation shall be deemed a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business
Therefore, corporations are citizens of up to two states: a state where the corporation is incorporated, and a state where it has its principal place of business (where the High Level Officers direct, control, and coordinate the corporation’s business; the “nerve center”)

Question 7

AGGREGATING AMOUNT IN CONTROVERSY IN DIVERSITY JURISDICTION CLAIMS

Answer 7

requires a minimum amount of more than $75,000 in controversy for diversity cases

A single plaintiff may aggregate her separate, unrelated claims against a single defendant to satisfy AiC
Co-plaintiffs cannot add their claims together to satisfy AiC
A single plaintiff cannot aggregate her claims against multiple defendants to satisfy AiC
Where there are two co-defendants that cannot both be liable for AiC minimum but one could be liable for AiC minimum, this satisfies AiC (this requires that both defendants COULD be liable for AiC minimum, but ultimately one will not)
Where there are two co-defendants sued for different amounts and one is less than min AiC, they must be dropped to satisfy AiC
If a defendant is sued for two mutually exclusive claims that together exceed AiC but are each below min AiC, this does not satisfy AiC

Question 8

WELL-PLEADED COMPLAINT

Answer 8

federal question jurisdiction is allowed when the federal issue appears on the face of the well-pleaded complaint, that is, if a proper complaint, limited to the allegations necessary to state a proper claim for relief, relies on federal law

Question 9

REMOVAL OF CIVIL ACTIONS

Answer 9

Generally. Except as otherwise provided by act of congress, any civil action brought in a state court of which the district courts of the united states have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the united states for the district and division embracing the place where such action is pending
Removal based on diversity of citizenship
In determining whether a civil action is removable on the basis of the jurisdiction under section 1332 (a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded
A civil action otherwise removable solely on the basis of the jurisdiction under section 1332 (a) (diversity) of this title may not be removed if any … defendant is a citizen of the state in which such action is brought

Question 10

DOMICILE

Answer 10

state in which an individual resides and has an intent to remain indefinitely

Question 11

Attach
Sequester
Original Jurisdiction
Writ of Prohibition
Forum State
Per Se
Crossclaim
Plurality
Interlocutory Appeal
Marks Rule (binding part of a plurality opinion)

Answer 11

Attach: to assert control over
Sequester: to attach
Original Jurisdiction: the trial court that can hear the case
Writ of Prohibition: challenging a judge’s action by “telling on him” to his “boss” (higher court)
Forum State: where the lawsuit is filed
Per Se: on its face / on its own
Crossclaim: suing a party on the same side of the “v” such as a co-plaintiff suing a co-plaintiff or a co-defendant suing a co-defendant
Plurality: more than one justice concurs with part of the opinion, but not a majority
Interlocutory Appeal: an immediate appeal even though the case is still pending in the trial court. 28 U.S.C. § 1292 (a) (1) grants and governs this process.
Marks Rule: when a fragmented (Supreme) Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgement on the narrowest grounds

Question 12

HOW PLAINTIFFS CAN AVOID REMOVAL TO FEDERAL COURT

CRIN

Answer 12

CRIN
Careful Recovery In-state Non-diverse

Careful Pleading: Pleading to avoid any making any federal matters central to the complaint, or dropping any federal elements of the complaint altogether
Joining an In-State Defendant: Plaintiff can add a co-defendant from the forum state. Only prevents removal based on diversity, not on other SMJ issues.
Joining a Non-Diverse Defendant: Plaintiff can add a co-defendant with the same domicile as the plaintiff. Only prevents removal based on diversity.
Limited Recovery Amount Requested: Claiming damages below the minimum amount in controversy. Only prevents removal based on diversity.
Fraudulent Joinder: A frivolous/fraudulent co-defendant will be dropped and the removal successful

Question 13

ROUTES TO PERSONAL JURISDICTION

CRAPP

Answer 13

CRAPP

Consent
Resident / Domicile (General PJ)
Agent in the state
Property (in Rem)
Present (served while present in state) aka Transient Presence / Tag

When a party waives any objection to personal jurisdiction, this preempts any other possible route to proving or disproving personal jurisdiction. Failure to object is essentially consent and thus other possible routes are irrelevant. Technically, consent is also irrelevant after failing to object to PJ, but in essense the failure to object is, itself, conset.

Question 14

SPECIFIC IN PERSONAM JURISDICTION ANALYSIS

AFA

Answer 14

AFA

Availment, Fairness, Arises

Purposeful Availment (of minimum contacts)
Fairness Factors
Arises out of or sufficiently relates to (minimum contacts)

Question 15

CERTAIN MINIMUM CONTACTS RULE FACTORS

C NIC SLOB

Answer 15

C NIC SLOB

Continuous, Not Irregular [or] Casual, Systematic, Legal, Obligation, Benefits

Not irregular or casual
Continuous
Systematic
Benefits defendant
Draws legal protection
Gives rise to obligation to be subjected to PJ

Question 16

CIV PRO: CALDER EFFECTS TEST

Answer 16

if something is written outside the forum state but is intended to have a particular impact or effect in the forum state is sufficient to establish specific personal jurisdiction

Question 17

VENUE: FAIRNESS DOCTRINE FACTORS

BFPJS

Answer 17

BFPJS

Big Fucking Pot of Jambalaya Stew

Burden, Forum, Plaintiff, Judicial, Shared

burden of traveling to forum state is on the defendant and this weighed against other factors including
Forum State’s Interest in adjudicating the dispute
Plaintiff’s Interest in the convenient and effective relief
Interstate Judicial System’s Interest in the most efficient resolution of controversies
Several States’ Shared Interest of the several States in furthering fundamental substantive social policies

Question 18

ROUTES TO GENERAL JURISDICTION

Answer 18

Corporations: the contacts must be sufficiently extensive that the defendant is “essentially at home in the forum state.” (incorporation state or PPB, usally) Goodyear v. Brown (2011)
Perkins (1953): this is the textbook example of an exceptional set of circumstances establish an additional general personal jurisdiction
Individuals: must be domiciled there

Question 19

VERSIONS OF in Rem JURISDICTION

Answer 19

True in Rem / Just in Rem: a suit to determine who owns the res (the property) as against the whole world
Quasi in Rem Type I: who owns the res as against the litigants in that lawsuit; a dispute over certain res between specific parties
Quasi in Rem Type II: the res is used to get limited jurisdiction over the defendant. This grants the court the power to hear a case against the defendant; without this jurisdiction or personal jurisdiction over the defendant, the judgment would be void. Recovery limited to the value/worth of the res that was attached for jurisdictional purposes.

Question 20

RES ATTACHMENT TYPES

Answer 20

Post-Judgment Attachment / Garnishment (when for wages): way to collect a judgment that plaintiff has won and defendant is not paying; this cannot be used to confer jurisdiction, because it is done after the judgment, which requires jurisdiction to be valid
Pre-Judgment Attachment
For QiR Type I: the res is attached to be used as security so that the defendant does not dispose of the property that will likely be part of the judgment
For QiR Type II: used to get jurisdiction over defendant

Question 21

MERE AWARENESS PLUS

ADAM

Answer 21

ADAM
Advice, Design, Advertising, Marketing

something more needed than mere awareness of its product’s entry into the forum State through the stream of commerce in order for the State to exert jurisdiction over the defendant.
Such as…
designing the product for the market in the forum State
advertising in the forum State
establishing channels for providing regular advice to customers in the forum State, OR
marketing the product through a distributor who has agreed to serve as the sales agent in the forum State

Question 22

MERE AWARENESS

Answer 22

mere foreseeability or awareness that the defendant’s product made its way into the forum State while still in the stream of commerce is a constitutionally sufficient basis for personal jurisdiction.

Question 23

General Personal Jurisdiction

Answer 23

Individuals = domiciled
Corporations = essentially at home
Principal place of business or
Incorporated
Exceptional circumstances may add a third scenario that would put a defendant at home in the forum state, such as in Perkins

Question 24

Attachments

Answer 24

Post-Judgment Attachment (aka a garnishment) - used to collect on a judgment that the defendant refuses to pay

Pre-Judgment Attachment for Security - court can attach a defendant’s assets when there is a concern that the defendant might dissipate those assets to prevent the satisfaction of a future judgment

Question 25

Enumerated Long Arm Statute

Answer 25

Authorizes PJ in specified situations (typically uses the language “arising out of _____”), such as business, contracts, torts, warranty, etc.

The action and circumstances must fall within / not be excluded from personal jurisdiction in order to be subjected to PJ in the state

Question 26

Coextensive Long Arm Statute

Answer 26

Allow PJ to the extent of the Constitutional authority

Question 27

Specialized Long Arm Statute

Answer 27

A type of Long Arm Statute that requires certain individuals to consent to personal jurisdiction in certain circumstances, such as those seeking a business license or those driving in the state (such as in the Hess case)

Question 28

Civ Pro: TWO FUNCTIONS OF NOTICE

Answer 28

Asserts the court’s authority over the Defendant

Informs the Defendant of the case so Defendant can prepare to defend it

Question 29

WHEN IS PUBLICATION NOTICE OKAY (after Mullane)

UCA

Answer 29

UCA

Unknown, Conjectural, Ascertained

Unknown beneficiaries
Beneficiaries whose interests are conjectural OR
whose whereabouts cannot be ascertained in natural course of business

Question 30

Adequate service requires

Answer 30

Summons
Complaint

Question 31

Who serves process?

Answer 31

Fed. Rule 4(c)(1) provides that the plaintiff bears the responsibility of serving process, but cannot serve it herself
Fed. Rule 4(c)(2) provides that any person who is at least 18 years olf and not a party may serve a summons and complaint
Could be a private process server, a qualified sheriff or deputy sheriff, or it could be mailed by plaintiff’s counsel if service by mail is permitted

Question 32

When must process be served?

Answer 32

After complaint is filed
Within 90 days of filing (or court will dismiss unless good cause for extension)
Plaintiff can file again if case dismissed for failure to timely serve

Question 33

HOW TO SERVE PROCESS TO AN INDIVIDUAL?

Answer 33

Deliver the papers to the defendant personally (“in-hand service”) wherever she can find the defendant
Leave the summons and complaint at the defendant’s “dwelling or usual place of abode with someone of suitable age and discretion who resides there.”
Deliver the summons and complaint to an agent of the defendant authorized by appointment or by law to receive service of process
Follow the rules for service of process of the state where the federal court sits or of the state in which service of process is made

Question 34

HOW TO SERVE PROCESS TO A CORPORATION?

Answer 34

Delivering a copy of the summons and complaint to an officer, a managing agent, or a general agent of the entity
Delivering the papers to an agent (an official agent, not an agent of the corporation) authorized by law or by appointment to receive service of process, such as the state’s Secretary of State in most states
Serving process under state rules for serving corporations, in either the state where the federal court sits or in the state where service is made

Question 35

REQUIREMENTS FOR REQUESTING WAIVER OF SERVICE OF PROCESS

WEC

Answer 35

WEC

Waiver, Envelope, Complaint

Plaintiff can request defendant to waive service by sending a notice of the action with:

Two copies of the waiver form
The complaint
And a prepaid envelope for returning the waiver

Question 36

EXAMPLES:
NOT GOOD CAUSE TO REFUSE TO WAIVE SERVICE

Answer 36

Belief…
that the lawsuit is groundless
that it has been brought in an improper venue
that the court has no jurisdiction over this matter
that the court has no jurisdiction over the defendant or the defendant’s property

Question 37

PRO’S TO WAIVING SERVICE FOR DEFENDANT

Answer 37

If defendant agrees to waive service, they have sixty days to answer the complaint rather than the usual 21
If defendant refuses, they bear the costs of formal service and associated attorney’s fees

Question 38

Differences between PJ, SMJ, and Venue

Answer 38

Venue is not a required consideration under the Constitution
SMJ is concerned with court’s power
PJ is concerned with Defendant’s connection to the state
Venue is concerned with the plaintiff’s, witness’s, and court’s connection to the case
Venue focuses on the court within the state, not the whole state

Question 39

Determining Venue

Answer 39

(b) (1) - where defendant resides (not necessarily domiciled … see (c) (2) ) if all defendants from the same state, and the district is in that state
(b) (2) - where substantial events of claim occurred
(b) (3) - if (1) and (2) fail, any district where defendant is subject to PJ
(c) (1) - natural person resides where domiciled
(c) (2) - entities (like corp.) reside where they are subject to PJ
(c) (3) - foreign defendants
(d) - multiple districts in the state, venue for corporations, districts analyzed for PJ as if districts were separate states

Question 40

Key factors of change of venue

PC MIC

Answer 40

PC MIC

Proper, Convenience, May, Interest, Consent

Convenience of witness / parties
Interest of justice
Court may transfer
Transfer to another proper district
Or to which all parties consent

Question 41

Rules Decision

Answer 41

In federal court, state law will be applied in civil action diversity jurisdiction cases ()
“The laws of the several states, except where the Constitution or treaties of the US or Acts of Congress otherwise require or provide, shall be regarded as the rules of decision in civil actions in the courts of the US, in cases where they apply.”

Question 42

Rules Enabling

Answer 42

Supreme Court shall have power to prescribe general rules of practice and procedure and rules of evidence for cases in the US …
If there’s a controlling federal rule, it applies as long as the rule is valid, which means:
It rationally can be classified as either substantive or procedural, which is often restated as “arguably procedural” AND
It does not abridge, enlarge, or modify substantive rights

Question 43

Erie Holding re: Appropriate Law

Answer 43

state law must be applied (unless there is a federal question), regardless of if it is statutory or common law, when a federal court is sitting in diversity

Question 44

State Supreme Court Predictive Approach

Answer 44

how the state supreme court would (probably) handle the case if it came before them today; intermediate appellate court rulings will be considered

Question 45

Proper Law Applied Re: Venue Change

Answer 45

a court ordinarily must apply the choice-of-law rules of the State in which it sits. However, where a case is transferred pursuant to 28 USC § 1404(a), it must apply the choice-of-law rules of the State from which the case was transferred

Question 46

Outcome Determinative Test (Guaranty Trust)

Answer 46

main holding/aim was that there should not be a substantially different result between filing a suit in state court and filing an identical suit in a federal court that sits in that state

Rather than adhere to a strict distinction between substantive and procedural, the Guaranty Trust holding suggests that a better measurement that still stays mostly true to the substantive/procedural approach is whether the application of a federal law/rule/practice would result in a different outcome if the case had been tried in state vs. federal court

Question 47

OUTCOME DETERMINATIVE TEST

Answer 47

if there is a difference in practice that could affect the result of the case, the federal court should adopt the state’s approach

Question 48

OUTCOME DETERMINATIVE TEST (Byrd v. Blue Ridge)

Answer 48

If a law difference between state and federal law/rule is outcome determinative, check for affirmative countervailing considerations (ACC) that might push the balance in favor of applying federal law anyway

In Byrd, federal emphasis on the right to a jury trial is so strong that where there was conflict of law on this matter, federal approach should win out.

Byrd pointed out that deferring to state substantive law was a constitutional requirement, while applying procedural rules, it is a choice

Question 49

affirmative countervailing considerations (ACC)

Answer 49

a potentially overriding federal interest that requires following federal law). If there is an ACC, apply the federal provision.

For example, in Byrd, which applied the federal practice (letting a jury decide if plaintiff was a “covered” employee, because 1) federal gov’t had a stronger interest and 2) although it might be outcome determinative, that was far from clear)

Question 50

Rules Enabling Act Analysis, after Hanna

Answer 50

Does the Rule control, aka is it “on point?” [Yes? On to question two. No? Do Erie analysis]
Does it regulate procedure? [Yes? On to question three. No? Do Erie analysis]
Does it abridge, enlarge, or modify substantive rights? [No? Apply Federal Rule. Yes? Do Erie analysis]

Question 51

Breakdown of Federal Judicial Law

Answer 51

Federal Rule = FRCP, not statutes because not enacted by Congress
Federal Practice = applying laches instead of SOL, or what is a matter of law vs. fact, for instance
Federal Statute = law passed by Congress

Question 52

Erie Analysis
(The test under Erie and its progeny)

Answer 52

Is the state law/provision in conflict clearly substantive? If yes,apply the state law.
If it’s not clearly substantive, is it likely to affect the outcome of the case if applied/not applied? If no, apply federal provision.
If it is likely to affect the outcome of the case, look to see if there is an affirmative countervailing consideration (some federal interest that is so important that it overrides the outcome determinative test).
If there is one, apply the federal provision.
If there is not, apply the state provision

Question 53

The two questions you must ask re: Long Arm Statutes

Answer 53

Does the LAS authorize personal jurisdiction in cases like this?
Is it Constitutional?

Question 54

The Twin Aims of Erie

Answer 54

to prevent

Forum Shopping AND
Inequitable Application of Law

Question 55

INTERNATIONAL SHOE QUOTE

Answer 55

“Certain minimum contacts [exist in forum state] that maintenance of the lawsuit in the forum state does not offend traditional notions of fair play and substantial justice.”

Question 56

TIMELINESS OF PJ OBJECTION

Answer 56

Under FRCP Rule 12, a defendant normally has 20 days after being served with the summons and complaint to file an answer or to object to jurisdiction

Question 57

In Rem Jurisdiction Contacts Requirement

Answer 57

In order to assert in Rem or Quasi in Rem Jurisdiction, a contacts based inquiry must be applied; in other words, in Rem Jurisdiction now requires a minimum contacts analysis

Question 58

Rules for Forum Non Conveniens

Answer 58

Less favorable law to Plaintiff in alternative forum cannot be the basis for denying FNC
There must be a real alternative forum

Question 59

Alternative Sources of Personal Jurisdiction:

When does Nationwide Personal Jurisdiction apply?

Answer 59

When federal statute authorizes nationwide service of process, such as with statutory interpleader

Question 60

Alternative Sources of Personal Jurisdiction:

When does th 100 Mile Bulge Rule apply?

Answer 60

When a party is added to suit through impleader or required joinder AND
Party served with process within 100 miles of federal court where suit is pending

Question 61

Alternative Sources of Personal Jurisdiction:

When can a federal court without personal jurisdiction acquire personal jurisdiction over a defendant anyway?

Answer 61

1. When the Plaintiff’s claim arises from federal law,
2. Defendant is not subject to personal jurisdiction in any state, AND
3. Exercise of jurisdiction complies with US Constitution & federal laws (i.e. defendant has minimum contacts with USA as a whole)

Question 62

What are the requirements for Diversity Jurisdiction SMJ in class action lawsuits? (Two routes)

Answer 62

EITHER
1. Amount in Controversy for ANY named plaintiff exceeds $75,000
AND
2. Named opposing parties are citizens of different states

OR, under the Class Action Fairness Act

1. Class contains at least 100 members;
2. At least one class member & one defendant are diverse, AND
3. Amount in controversy for aggregated claims exceeds $5 million

Question 63

In a state court lawsuit, can the defendant remove the case to federal court if the defendant is a citizen of the forum state, assuming the case satisfies diversity requirements?

Answer 63

NO.

Because in-state defendants do not face a risk of bias, the forum-dependent rule prohibits removal when a defendant is a citizen of the state in which the case was filed.

Question 64

For which types of Class Action lawsuits is notice required, and for which is it not?

Answer 64

NOT REQUIRED FOR Prejudicial Risk actions: separate actions create risk of inconsistent decisions OR impairing absent members’ interests. Class members cannot opt out, so notice is only optional.

NOT REQUIRED FOR Final Equitable Relief actions: opposing party’s actions generally apply to whole class so injunctive or declaratory relief is appropriate. Class members cannot opt out, so notice is only optional.

NOTICE IS REQUIRED FOR Common Question actions: common questions predominate over individual questions AND class action is best method to resolve dispute. Class members CAN opt out, so Notice is Required.

Question 65

Is a party required to identify an expert who is NOT expected to testify at trial?

Answer 65

NO (generally).

Two exceptions exist (court-ordered examination & exceptional circumstances - see below)

Facts known and opinions held by an expert NOT expected to testify, INCLUDING THE EXPERT’S IDENTITY, are privileged and not discoverable unless:
1. That information relates to a court-ordered physical or mental examination, OR
2. Exceptional circumstances make it impracticable to obtain the information by other means.

Question 66

Exceptions to the Final Judgment Rule of Appeals

ICCAACBMP
“In Certain Cases An Appeal Can Be Made Prematurely”

Answer 66

ICCAACBMP
Injunction
Certification by District Court
Class Action Certification
Appointment of Receiver
Admiralty Case
Collateral Order Doctrine
Bankruptcy Cases
Mandamus (petition for writ)
Patent Infringment Order (only accounting left)

Question 67

Final Judgment Rule of Appeals

Answer 67

Federal appellate courts cannot hear an appeal UNTIL the district court has entered a final judgment.

Even if summary judgment is granted on parts of a claim, if there are still unresolved portions of the claim, there has not been a final judgment and therefore the appellate court does not have jurisdiction yet.

Question 68

Does a state law the validity of forum selection clauses apply to cases filed in that state’s federal court sitting in diversity jurisdiction?

Answer 68

NO.

Forum selection clause laws are procedural laws and therefore a state law pertaining to forum selection is not applied in that state’s, or any state’s, federal court.

Question 69

CIV PRO: When must a summons and complaint be served?

Answer 69

Within 90 Days after complaint’s filing with the court

Question 70

When must a plaintiff file a proof of service?

Answer 70

Witihn a reasonable time after complaint’s service.

Question 71

When must a waiver of service be filed?

Answer 71

Within 90 days after complaint’s filing

Question 72

When must an answer to a complaint be served?

Answer 72

Within 21 days after complaint’s service

OR, if service was waived

Within 60 days of plaintiff sending the waiver of service request (90 days if outside the US)

Question 73

When must an answer to a counter- or cross-claim be served?

Answer 73

Within 21 days after serving of the pleading that states the claim

Question 74

When must a reply to an answer be served?

Answer 74

A reply to an answer does not need to be served UNLESS the court orders it. If the court orders it, it must be served within 21 days after service of the court order, unless the court orders a different deadline.

Question 75

When must a 3d party summons and complaint be served?

Answer 75

Within 14 days after the 3d party plaintiff served original answer

OR

If more than 14 days have passed, by motion for leave to serve a 3d party summons and complaint

Question 76

When must an amended pleading be served?

Answer 76

As a matter of right, within 21 days after serving the original pleading

OR

If the pleading requires a responsive pleading, then within 21 days of
1) Responsive pleading OR
2) Motion under Rule 12(b)
(whichever is earlier)

Question 77

When must a response to an amened pleading be served?

Answer 77

Within the later of:
a) the time remaining to respond to the original pleading
OR
b) 14 days after service of the amended pleading

Question 78

When must a responsive pleading be served after the court denies or postpoins its decision on a motion to dismiss under Rule 12(b)?

Answer 78

Within 14 days after notice of the court’s order

Question 79

Miscellaneous Nuanced Deadlines

1. Serving a more definite statement after the court grants a motion for a more definite statement
2. Serving a responsive pleading after the court denies or postpones its decision on a motion for a more definite statement?
3. Serving a motion to strike a defense or other matter in a pleading
4. Serving a more responsive pleading after the court denies or postpones its decision on a motion to strike
5. Serving a corporate disclosure statement

Answer 79

1. Within 14 days after notice of court’s order, unless court orders otherwise
2. Within 14 days after notice of court’s order, unless the court orders otherwise
3. Before responding to the pleading OR if a response is not allowed, within 21 days after service of the pleading
4. Within 14 days after notice of court’s order
5. With the filing party’s first appearance, petition, motion response, or other court request

Question 80

When must a motion for judgment on the pleadings be served?

Answer 80

After the pleadings are closed, but early enough not to delay trial

Question 81

When must initial disclosures be served?

Answer 81

Within 14 days after the discovery conference

OR

For parties served or joined after discovery conference, within 30 days of being served or joined

Question 82

When must expert witness disclosures be served?

Answer 82

Absent a stipulation or court order setting a time and sequence for expert disclosures:

1. At least 90 days before the trial date

OR

2. If the witness will be used for rebuttal, within 30 days after the other party’s expert witness disclosure

Question 83

When must a discovery planning conference be scheduled?

Answer 83

At least 21 days before the court holds a scheduling conference or a schedule order is due

Question 84

When must a discovery plan be submitted to the court?

Answer 84

Within 14 days after the discovery planning conference

Question 85

Miscellaneous Nuanced Deadlines 2

1. When must cross-questions in connection with a deposition by written answers be served?
2. When must redirect questions in connection with a deposition by written questions be served?
3. When must recross-questions in connection with a deposition by written questions be served?
4. When must responses to a document request be served?
5. When must responses to interrogatories be served?
6. When must responses to requests for admission be served?

Answer 85

1. Within 14 days after service of the notice and written questions
2. Within 7 days after service of the written cross-questions
3. Within 7 days after service of the written redirect questions
4. Within 30 days after service of the document request
5. Within 30 days after service of the interrogatories
6. WIthin 30 days after service of the requests, otherwise the matter is deemed admitted

Question 86

When must notice on all parties of a subpoena commanding the production of documents or the inspection of premises be served?

Answer 86

Before the issuing party serves the subpoena on the person to whom the person to whom it is directed

Question 87

When must written objections to a subpoena commanding the inspection or copying of materials or the inspection of premises be served?

Answer 87

Before the earlier of:
1. The time specified for compliance

OR

2. 14 days after service of the subpoena

Question 88

When must a written motion and notice of hearing be served?

Answer 88

At least 14 days before the specified hearing date, except when:
1. The court hears the motion ex parte
2. The rules set a different time
OR
3. A court order sets a different time

Question 89

When must an affidavit or other papers opposing a written motion be served?

Answer 89

At least 14 days before the specified hearing date

Question 90

When must a motion for summary judgment be filed?

Answer 90

Any time up until 30 days after the close of all discovery

Question 91

When must a motion for sanctions be filed?

Answer 91

Within 21 days after service of the motion on the opposing party provided the opposing party did not withdraw or correct the challenged paper, claim, defense, contention, allegation, or denial

Question 92

When must an offer of judgment on an opposing party be served?

Answer 92

At least 14 days before the trial date

Question 93

When must a written notice of accepting an offer of judgment be served?

Answer 93

Within 14 days after service of the offer of judgment

Question 94

When must a notice of appeal be filed?

Answer 94

Within 30 days after entry of the judgment or order appealed from

OR

Within 60 days after entry of the judgment or order appealed from if one of the parties is:
1. The USA
2. A US agency
3. A US officer or employer sued in an official capacity
4. A current or former US officer or employee sued in their official capacity

Question 95

When must a notice of removal to federal court be filed?

Answer 95

Within 30 days after
1. The defendant receives the initial pleading through service or otherwise

OR

2. Service of the summons on the defendant, if service of the initial pleading is not required

Question 96

Of which state is the executor of a decedent’s estate a citizen for cases involving the decedent’s estate?

Answer 96

The executor is a citizen of the state of which the decedent was a citizen.

Question 97

Under what conditions may a court relieve a party from final judgment?

Answer 97

A court may relieve a party from a final judgment or order for a motion filed, within a reasonable time, and no later than one year following the entry of the judgment or order for mistake, inadvertence, surprise, excusable neglect, newly discovered evidence that could have been discovered with reasonable diligence, fraud, misrepresentation, or misconduct.

Both extrinsic and intrinsic fraud can provide grounds for relief from final judgment under these circumstances.

Question 98

What is intrinsic and extrinsic fraud, as the terms relate to grounds for relief of judgment?

Answer 98

Intrinsic Fraud: fraud relating to a matter tried by the trier of fact
Extrinsic Fraud: fraud that prevents a person from discovering or enforcing legal rights

Question 99

If a party presents only conclusory allegations and denials and the other party has moved for summary judgment, when is summary judgment for the opposing party proper?

Answer 99

If a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in his own pleading. If a party has presented only conclusory allegations and denials, the court should grant the opposing party’s motion for summary judgment.

Question 100

How long after receiving a court’s response to the defendant’s own motion for dismissal must the defendant’s answer be filed?

Answer 100

The defendant must, within 14 days after receiving notice of the court’s decision on the motion, file its answer.

Question 101

If a defendant files a counterclaim against a plaintiff in a diversity case for an amount less than $75,001 that does not arise from the same case or controversy as the plaintiff’s claim, should the counterclaim be dismissed?

Answer 101

YES.

A counterclaim must either satisfy SMJ on its own or arise from the same case or controversy as the anchor claim for supplemental jurisdiction.

Question 102

If a state’s long arm statute conferred PJ to the extent permissible under the Due Process Clause, would that state have PJ over a defendant who is incorporated and headquartered in a different state, but that had a retail store that sold a defective item in the state?

Answer 102

YES.

This is within the constitutional limits of personal jurisdiction, particularly because the defendant could say it availed itself of resources there or possibly that the cause of action arose there.

Question 103

When must a motion to dismiss for insufficient waiver of process be raised?

Answer 103

In the pre-answer motion or answer, whichever is first.

Question 104

What are the standards of review of a trial court’s decisions in the following instances:

1. Legal Rulings
2. Discretionary Decisions
3. Findings of Fact
4. Errors affecting substantial right but not objected to

Answer 104

1. De Novo
2. Abuse of Discretion
3. Clearly Erroneous
4. Plain error

Question 105

Does a defense, unsupported by applicable law, contained in a pleading warrant the filing of a motion to strike to remove the insufficient defense from the pleading?

Answer 105

YES.

If a pleading contains an insufficient defense, a party must move to strike the defense from the pleading either before responding to the pleading or, if a responsive pleading is not permitted, within 21 days after being served with the pleading.

Question 106

Is an order to remand a case to state court reviewable?

Answer 106

Generally, a remand order is not reviewable on appeal or otherwise.

Exception: A class action remand order is reviewable only if the appeal is made not more than 10 days after the entry of the order.

Question 107

Under the Multiparty, Multiform Trial Jurisdiction Act of 2002, a class action involving 75 natural persons who have died in a single accident at a discrete location, what is required for a federal court to have diversity jurisdiction over the case?

Answer 107

At least one plaintiff must be diverse from one defendant, and the defendant resides in a state different from the state where a substantial part of the accident took place.

Question 108

If a party has already been warned about not missing court hearings but misses another one, under what circumstances would the judge be in error if he dismissed the case as punishment?

NISE

Answer 108

NISE
Not Inexecusable Serious Extreme

Even though a judge can impose some sanctions for missing a hearing (or other impermissible action), dismissing an action is a severe sanction and is therefore not an appropriate one when the party’s conduct is not serious, extreme, or otherwise inexcusable.

Question 109

When can a party to a case poll the jury?

Answer 109

After the jury returns a verdict but before the jury is dismissed, the court must poll the jurors individually if a party requests.

Question 110

When a defendant has failed to plead or otherwise defend an action, what action can the plaintiff take?

Answer 110

The plaintiff can request that the court clerk enter a default, which the clerk must do if the plaintiff can establish the defendant’s failure, usually by an affidavit.

A default judgment against the defendant must be preceded by the entry of a default by the court clerk.

Question 111

Do federal courts have to exercise jurisdiction over domestic-relations matters such as spousal support?

Answer 111

NO.

Although federal courts could technically have diversity jurisdiction over a domestic-relations proceeding, federal courts have traditionally declined to exercise jurisdiction over domestic-relations matters.

Question 112

When is the U.S. Attorney General required to be served process in a civil suit?

Answer 112

When the United States is a defendant. The U.S. attorney for the district in which action has been filed also must be served. The U.S. Attorney General must be sent a copy of the summons and complaint by registered or certified mail.

Question 113

Are tortfeasors facing joint and several liability considered necessary parties to be joined?

Answer 113

NO.

A person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction or destroy venue must be joined as a party if the party’s participation in the lawsuit is necessary for a just adjudication. HOWEVER, tortfeasors facing joint and several liability are not considered necessary parties.

Question 114

When can a jury in a civil suit render a valid non-unanimous verdit?

Answer 114

Under the FRCP, a jury verdict MUST be unanimous, UNLESS the parties stipulate otherwise.

Question 115

When is there diversity in a class action lawsuit where the amount in controversy exceeds $5 million?

Answer 115

When ANY member of the class is diverse from the defendant.

Question 116

According to FRCP Rule 23(a), when is a class action permitted, in lieu of individual claims?

CANT

Answer 116

CANT
Commonality Adequacy Numerosity Typicality

1. Numerosity - The class must be so numerous that joinder of all members is impractical
2. Commonality - There must be questions of law or fact that are commont to the class
3. Typicality - The claims or defenses of the representatives must be typical of the class
4. Adequacy - The representatives must fairly and adequately protect the interests of the class

Question 117

What are the requirements for a plaintiff to have standing?

RIT

Answer 117

RIT
Relief Injury Traceable

The plaintiff must have:

1. Injury in fact
2. An injury that was fairly traceable to the challenged action
   AND
3. A request for relief that prevents or redresses the injury

Standing requires a concrete and particularized injury, even in the context of a statutory violation

Question 118

For matters of diversity, where is a US citizen domiciled if the US citizen has moved permanently to another coutnry?

Answer 118

The US citizen is a citizen of the other country, and is domiciled there. The US citizen has no domicile in the US and is therefore diverse from all parties domiciled in the US when a diversity jurisdiction lawsuit is filed in the US.

Question 119

Over which types of cases does SCOTUS have concurrent jurisdiction with lower federal courts?

Answer 119

-Cases involving foreign ambassadors, public ministers, or consuls
-Cases between the US and a state
-Cases between a state and citizens of another state or noncitizens

Question 120

When may a party dismiss their crossclaim, counterclaim, or third party claim?

CSBRE

Answer 120

CSBRE
Court Stipulation Before Response Evidence

1. With permission from the court
2. When all parties who have appeared sign stipulation of dismissal
   OR
3. When the claimant files a notice of dismissal before
   a) responsive pleading (answer) served
   OR
   b) evidence introduced at hearing or trial, if no responsive pleading was served

Question 121

Absent a court order, when can parties begin to seek discovery?

Answer 121

A party may not seek discovery until the parties have held an initial planning conference.

If a discovery request is served before this conference is held, the court would likely grant a protective order to shield the served party from the undue burden of responding to that request.

Question 122

Purposeful Availment: What must a defendant’s contacts be within a state in order for that state to have personal jurisdiction over them?

Answer 122

Purposeful Availment: The defendant’s contacts with the forum state must be purposeful and substantial, such that the defendant should reasonably anticipate (foresee) being taken to court there.

Purposeful Availment: Foreseeability depends on whether a defendant recognizes or anticipates that by running his business, he risks being party to a suit in a particular state.

Question 123

Is an out-of-state business advertising and having its products sold in the forum state subject to personal jurisdiction in the forum state?

Answer 123

MAYBE.

To determine whether the corporation is subject to a state’s general jurisdiction, the proper inquiry is whether a corporation’s affiliations with the forum state are so “continuous and systematic” as to render the corporation essentially “at home” in the forum state.

For example, despite building 2,000 miles of railroad track and employing 2,000 people in a forum state, the court decided that because the 94% of defendant business’s total track and 95% of its workforce were outside the state.

For another example, when operating a website with the purpose to assist in conducting direct business transactions in a particular state, PJ is likely; while merely operating a website where information can be retrieved from a computer in a particular state, PJ is unlikely.

Question 124

What is the consequence of a party intentionally destroying evidence?

IRD

Answer 124

Intentional Relevant Diligence

The non-spoliating party is entitled to a REBUTTABLE presumption that the destroyed evidence would have been unfavorable to the party that destroyed it.

The non-spoliating party must prove that:
a) The destruction was intentional
b) The destroyed evidence was relevant to an issue about which the party seeks the inference
AND
c) The injured party acted with due diligence in seeking the evidence

Question 125

Can a federal court assess attorney’s fees as a sanction in a diversity case where the state law being applied prohibits the awarding of attorney’s fees?

Answer 125

YES, if the party against whom they are assessed acted in bad faith.

In a diversity case on a state law claim, the federal court may properly use its inherent power to assess attorney’s fees as a sanction for a defendant’s bad-faith conduct during the litigation, even if the law of the forum state provides that attorney’s fees may not be awarded to a successful party.

Question 126

If a federal court hearing a federal question jurisdiction case dismisses the federal claim but a related state law claim survives, does the federal court lose its SMJ?

Answer 126

NO.

If the federal law claim has been dismissed and leaves only a state law claim, the federal court MAY decline to exercise supplemental jurisdiction over the supplemental claim, but it does not have to.

Question 127

What are the requirements for transferring venue?

Answer 127

A district court with proper venue can transfer venue for
1. the convenience of parties
2. and witnesses,
3. and in the interest of justice, to any judicial district where
EITHER
4. the suit could have been originally brought, such as where
—a) any defendant resides, if all defendants reside in the same state;
—b) a substantial part of the events/property gave rise to the suit occurred, or
—c) any defendant is subject to the court’s personal jurisdiction (if neither a or b applies)
OR
5. to which all the parties have consented

Question 128

What are the requirements of issuing a Preliminary Injunction?

NRDS

Answer 128

NRDS
Notice Reasons Describe Specify

1. Notice of hearing,
   THEN, in court order:
2. State reasons issued
3. Reasonably describe acts restrained or required
4. Specify terms

Question 129

What are the requirements of issuing a Temporary Restraining Order?

E RDS DIWF

Answer 129

E RDS DIWF
Ex Reasons Describe Specify Date Irreparable Without Filed

1. Ex parte (no notice required)
   THEN, in court order:
2. State reasons issued
3. Reasonably describe acts restrained or required
4. Specify terms
5. Date & hour issued
6. Why injury is irreparable
7. Why issued without notice
8. Promptly filed with clerk & entered into record

Question 130

What is the relation-back doctrine?

SNK MI

Answer 130

Same Notice Knew Mistake Identity

When the statute of limitations has expired and a party wants to add a party to a suit that was filed before the statute of limitations expired, it is permitted only when:
1. The amendment concerns the same transaction or occurrence as the original complaint
2. The new party received notice of the suit within 90 days after the original complaint was filed
AND
3. The party knew or should have known that the suit would have been brought against it BUT FOR A MISTAKE concerning the party’s IDENTITY

Question 131

If no objection is timely made to jury instructions, under what circumstances can a post-verdict challenge be considered?

Answer 131

To challenge an error in jury instructions on appeal without having objected, the challenged error can only be reviewed for plain error

Question 132

When is a state claim a compulsory counterclaim to a claim (even when the anchor claim is a federal question claim and not a diversity claim)?

Answer 132

When it:
1. Arises from the same transaction or occurrence as the opposing party’s claim
AND
2. Does not require adding a party over whom the court cannot acquire jurisdiction, which MUST be asserted in the pending lawsuit or it is waived

Question 133

Under the “certification by district court” exception to the rule that only final judgments may be appealed, what standard does the court generally apply when it has granted summary judgment for some but not all the claims and a party wishes to immediately appeal the summary judgment?

Answer 133

When an action involves multiple claims or parties, a district court MAY enter final judgment as to fewer than all claims or parties and certify the judgment for immediate appeal if it expressly determines that there is NO JUST REASON FOR DELAY.

For no just reason to delay to exist, courts generally require that the adjudicated and unadjudicated claims be separate and distinct.

Question 134

After a final pretrial order has been entered that sets forth a plan for trial, under what condition may the court amend and modify this order?

Answer 134

Only to prevent manifest injustice.

Question 135

What is the required standard for a Judgment as a Matter of Law?

Answer 135

A JMOL requires that the evidence to support the claim is legally insufficient for a reasonable jury to find in nonmovant’s favor.

Question 136

Are the discovery rules applied in a federal court hearing a diversity case based on state law or federal law?

Answer 136

FEDERAL LAW. Discovery rules are procedural.

Question 137

Where is venue proper?

Answer 137

Venue is proper in:
1. EITHER
….a) the district in which any defendant is domiciled, if all the defendants are domiciled in the same state
….OR
….b) the district where a substantial part of the events or omissions occurred, or where the property at issue is located;
OR, if 1a and 1b fail,
2. In any district where any defendant is subject to PJ

Question 138

Does a defendant need to be diverse from a third-party defendant joined by the defendant under a compulsory counterclaim?

Answer 138

NO.

Because compulsory counterclaims fall under supplemental jurisdiction, a compulsory counterclaim against a third-party defendant does not require diversity with the defendant launching the counterclaim.

Question 139

When a losing party appeals a non-jury trial, what is the standard of review that the appellate court will apply in its review?

Answer 139

The appellate court will generally accept the trial judge’s findings of fact and set them aside only if they are CLEARLY ERRONEOUS.

Question 140

Can the doctrine of forum non conveniens be applied to transfer a case to a court in a foreign country?

Answer 140

YES.

Question 141

When issue preclusion (collateral estoppel) is applied in a case and the party enforcing issue preclusion succeeds, but then the case containing the previously litigated issue is reversed, can the losing party appeal to have the more recent case vacated, even if it has been more than a year since final judgment?

Answer 141

YES.

FRCP allows a party to move for extraordinary relief from a court’s final judgment on limited grounds. While the motion must typically be made within one year from the court’s judgment, this requirement is waived when the judgment is based on an earlier judgment that has since been vacated or reversed, provided the appeal to the more recent case is prompt.

Question 142

What are additur and remittur and what are their functions in federal court?

Answer 142

Additur is a request that a court increase an allegedly inadequate jury award of damages. Though allowed in many state courts, additur is NOT allowed in federal court because it violates the Seventh Amendment right to a jury trial.

Remittitur is a request that the court reduce an allegedly excessive jury award of damages. If the request is granted, the opposing party must choose between 1) a reduction in damages and 2) a new trial on damages. Remittitur does NOT violate the 7th Amendment because the jury has already determined the damages and the court is simply trimming the excess.

Question 143

What is the limit of how many depositions a party may execute?

Answer 143

Without leave of court, each group of parties are limited to 10 depositions by oral or written examination. “Groups of parties” are 1) plaintiffs, 2) defendants, and 3) third-party defendants.
To exceed 10 depositions, the other parties must agree to permit the excess, or the group must gain leave of court.

Question 144

What is required in the complaint for a federal court to have jurisdiction based on diversity?

Answer 144

In order for a federal trial to have jurisdiction based on diversity of citizenship, the complaint must contain a statement of the grounds for the court’s jurisdiction, and must state the reason for diversity based on CITIZENSHIP, NOT RESIDENCY.