Civ Pro 2 - Sheet1

Question 1

Where is Venue Proper?

Answer 1

In Diversity Cases:

1. where all D’s reside OR where a substantial part of the claim arose
2. If there is no such district from 1, then where all D’s are subject to PJ.

In Federal Question cases:

1. Where all D’s reside OR where a substantial part of the claim arose
2. If there is no such district from 1, thnen where any D can be found.

Question 2

Civil Procedure

When may you transfer venue?

Answer 2

Original Venue Proper: Court has discretion, generally skeptical of transfer b/c overrides P’s choice of forum; consider:

(1) For convenience for the parties and witnesses
AND
(2) Transfer is in the interest of justice
AND
(3) Court’ agrees (discretion) after considering:
-Public interest (what law applies, what community should be burdened w/jury service, keeping local controversies in local court
-Private interests: location of witnesses and evidence

Original Venue Improper: court can transfer in the interests of justice, or dismiss.

Transferee court applies the choice of law rule of the original court.

Question 3

Civil Procedure

What is ‘forum non conveniens?’

Answer 3

If there is a FAR more appropriate venue, a court may dismiss (usually without prejudice) (or stay) to allow P to file in that court.

This occurs if transfer is impossible because the proper venue is in a different judicial system (foreign).

Question 4

Civil Procedure

What is required for ‘Service of Process?’

Answer 4

(1) A summons
- Where and when to defend

(2) A complaint
- What to defend

(3) Timing
- Within 120 days of filing the action

Question 5

Civil Procedure

Upon whom must processed be served?

Answer 5

Either: (1) The D; or to someone of suitable age discretion who RESIDES at the D’s usual ABODE.

NOTE:
Suitable age does not mean over 18.

Question 6

Civil Procedure

May state law govern service of process in federal court?

Answer 6

YES.

In an action in federal court we can use methods of service permitted by state law of the state where the federal court sits OR where service is effective.

Question 7

Civil Procedure

How can service of process be waived?

Answer 7

Process is mailed to D by first class mail, postage prepaid.

IF D returns waiver within 30 days, he will have waived formal service ONLY (e.g., not pjdx)

IF D does NOT return waiver, D MUST be personally served BUT will have to pay the cost of service.

Question 8

Civil Procedure

May service of process be given in another state?

Answer 8

YES

IF the state law allows (e.g., long-arm statute).

Question 9

Civil Procedure

What must a federal complaint contain?

Answer 9

Must allege facts asserting a plausible claim.

COMPLAINT

(1) Establish SMJDX
(2) Statement of claim showing entitlement to relief
(3) Demand for judgment

Question 10

Civil Procedure

What are ‘special matters’ and how do they affect the complexity of the pleadings?

Answer 10

Special matters must be pleaded with particularity or specificity

Examples: Fraud, mistake, and special damages.

Question 11

Civil Procedure

How may a D responds to a complaint?

Answer 11

(1) Motions (Rule 12)

AND/OR

(2) Answer

Question 12

Civil Procedure

What are the Rule 12 Motions?

Answer 12

Issues of Form:

• 12(e) Motion for more definite statement
• 12(f) Motion to strike

Defenses 12(b):

• (1) Lack of SMJDX
• (2) Lack of PJDX
• (3) Improper venue
• (4) Insufficiency of process
• (5) Insufficiency of service of process
• (6) Failure to state a claim
• (7) Failure to join an indispensable party

Question 13

Civil Procedure

What 12(b) motions are subject to being waived and when?

Answer 13

Waived if not pled in the FIRST response (either motion or answer):

• (2) Lack of PJDX
• (3) Improper venue
• (4) Insufficiency of process
• (5) Insufficiency of service of process

May be raised at anytime THROUGH TRIAL:

• (6) Failure to state a claim
• (7) Failure to join an indispensable party

NEVER waived, may be raised AFTER TRIAL:
-(1) Lack of SMJDX

Question 14

Civil Procedure

What are the 3 ways to respond in a complaint and what are the effects?

Answer 14

(1) Admit
(2) Deny

(3) Don’t know (neither)
- Not allowed for public knowledge
- Not allowed if in D’s control

NOTE:
Anything not specifically denied is admitted.

Question 15

Civil Procedure

When must the answer be filed?

Answer 15

20 days after service of process

OR

10 days after court has ruled on D’s motions

OR

60 days from P’s mailing of request for waiver of services of process

Question 16

Civil Procedure

What must be raised in the answer besides responses to allegations?

Answer 16

(1) Affirmative Defenses
- if not pled, waived

(2) Compulsory Counterclaims
- if not pled, waived

(3) Permissive Counterclaims
- Not waived if not pled

(4) Crossclaims
- Not waived if not pled