Civ Pro

Question 1

What are the two basic requirements to have personal jurisdiction in a federal court?

Answer 1

(1) service of process reasonably calculated under the circumstances (provides notice + opp to be heard) and (2) minimum contacts in the state

Question 2

How may general personal jurisdiction be conferred onto a defendant?

Answer 2

State of domicile, “tag” jurisdiction while you are in the state, consent, or waiver

Question 3

What do long-arm statutes accomplish regarding jurisdiction?

Answer 3

They provide specific jurisdiction under certain circumstances tightly related to your presence in that state (E.g. you own a vacation home in the state… you can be sued related to the home but not for other things e.g. employment discrimination)

Question 4

How can you establish that specific jurisdiction will apply to a business conducting business in State A? What factors could you consider?

Answer 4

The business must have “purposefully availed itself” of the laws/protections of State A (has to be ACTIVE, not PASSIVE). Consider how much activity has been in the state e.g. a website that conducts actual business v. advertising; extensive telephone contact; an office branch in the state.

Question 5

What’s the key question when asking whether you can hail a defendant into your state’s court?

Answer 5

Is it fair, under the circumstances? Does it comport with “traditional notions of fair play and substantial justice?”

Question 6

How do you establish if an out-of-state or out-of-country manufacturer D can be brought under your state’s jurisdiction?

Answer 6

P must show that D placed the product in the general “stream of commerce” making it “reasonably foreseeable” that the product would end up in the forum state.

Question 7

What’s the key question when asking whether you can hail a defendant into your state’s court?

Answer 7

Is it fair, under the circumstances? Does it comport with “traditional notions of fair play and substantial justice?”

Question 8

How do you establish if an out-of-state or out-of-country manufacturer D can be brought under your state’s jurisdiction?

Answer 8

P must show that D placed the product in the general “stream of commerce” making it “reasonably foreseeable” that the product would end up in the forum state.

Question 9

How can a D object to personal jurisdiction?

Answer 9

Appear and raise a timely objection, or wait for a default judgment and make a collateral attack (risky).

Question 10

What’s the key question when asking whether you can hail a defendant into your state’s court?

Answer 10

Is it fair, under the circumstances? Does it comport with “traditional notions of fair play and substantial justice?”

Question 11

How do you establish if an out-of-state or out-of-country manufacturer D can be brought under your state’s jurisdiction?

Answer 11

P must show that D placed the product in the general “stream of commerce” making it “reasonably foreseeable” that the product would end up in the forum state.

Question 12

How can a D object to personal jurisdiction?

Answer 12

Appear and raise a timely objection, or wait for a default judgment and make a collateral attack (risky).

Question 13

What section of the US Code establishes federal question jurisdiction?

Answer 13

28 USC 1331

Question 14

What section of the US Code establishes diversity jurisdiction?

Answer 14

28 USC 1332

Question 15

At what point in time is state citizenship determined for purposes of diversity jurisdiction?

Answer 15

The parties’ citizenship at the time the suit is filed.

Question 16

What is the key question in establishing whether or not an additional claim can fall under supplemental jurisdiction?

Answer 16

If a case is already properly in federal court, a state law claim that is “part of the same case/controversy” (often called “common nucleus of operative fact”) may be given supplemental jurisdiction by the federal court.

Question 17

What are the four key things necessary to get federal jurisdiction over a case?

Answer 17

(1) service of process, (2) personal jurisdiction, (3) subject matter jurisdiction, and (4) venue must be proper

Question 18

How would forum non conveniens be established?

Answer 18

The D has a high burden in arguing for forum on conveniens, a tenuous tie to this place, the evidence/witnesses are far away, is there a compelling reason to hear it elsewhere? Courts can consider busy calendars (not the dominant factor)

Question 19

What are the basic requirements for a complaint to satisfy ?

Answer 19

(JARR) Jurisdiction, Allegation of plausible facts, Right to Relief, Relief Requested

Question 20

Why would a party need to be added through compulsory joinder?

Answer 20

If, without that person, complete relief cannot be afforded AND they can bring them in (jurisdiction is proper)… often they are an indispensable party (e.g. all parties to a contract, NOT joint tortfeasors).

Question 21

How can you amend your pleadings as of right?

Answer 21

You get one freebie as a matter of right without leave of court, before a responsive pleading has been served. Also if no responsive pleading is permitted, within 21 days of service.

Question 22

Why would a court deny your request for leave to amend your pleadings?

Answer 22

BUUF: bad faith, undue delay, unfair prejudice, futility

Question 23

When does an amendment adding a new party “relate back” under FRCP 15?

Answer 23

(1) It arises out of same transaction/occurrence, (2) the added party receives due notice, and (3) the party knew/should have known because it was only for mistaken identity that you missed them (so it’s not unfair). Unlikely to win.

Question 24

What is the difference between a cross claim and a counterclaim?

Answer 24

Counterclaims are across the lawsuit (across P and D), and cross-claims are amongst defendants

Question 25

Why would a party need to be added through compulsory joinder?

Answer 25

If, without that person, complete relief cannot be afforded and they are an indispensable party (e.g. all parties to a contract, NOT joint tortfeasors).

Question 26

What is the difference between joinder and impleader?

Answer 26

Joinder (permissive or compulsory) means that parties are joined as plaintiffs or defendants - impleader (rule 14) is a defendant’s creation of a 3rd party defendant (essentially becomes a plaintiff as to somebody else!)

Question 27

What has to be satisfied for creation of a 3rd party defendant (impleader)?

Answer 27

All the same as for a plaintiff (defendant #1 bringing defendant #2 in) including service of process, etc.

Question 28

How is CAFA different from classic SMJ for class actions?

Answer 28

CAFA requires only minimal diversity (one class member, named or not) and aggregate >$5 million in controversy - otherwise, without CAFA would require complete diversity of named plaintiffs and one named plaintiff with >$75K involved [but CAFA WILL LIKELY GOVERN]

Question 29

What is protected by the attorney work product doctrine?

Answer 29

Attorney notes, reports, research, and opinions produced “in anticipation of litigation” (ANY prospect of litigation is sufficient).

Question 30

Beyond CULP, what else will a court consider in deciding whether to certify a class?

Answer 30

(1) Risks of Separate Actions: is this a superior device for resolving the case? Are there already ongoing individual actions? (2) Conduct of Opposing Party: final injunctive/declaratory relief is appropriate (3) Common Questions: the common questions trump individual questions (is a class action the best way?) (“commonality +”) — note, tough to meet!

Question 31

What must a party show in order to intervene under FRCP 24?

Answer 31

Must show that you will be practically and importantly affected by the outcome of the litigation – will be denied if you would delay/prejudice the original proceeding.

Question 32

What must be shown in order to grant a preliminary injunction (extraordinary remedy)?

Answer 32

(RAMP): Risk of Irreparable Harm (more than “I’ll be a little disgruntled” more like “the wolves will all be dead”), Appropriate Weight of Harm Distribution (potential harm to P > burden on D), Merits Success Likelihood (P is likely to win), Public Interest

Question 33

How can a party refrain from turning over materials requested in discovery?

Answer 33

File for a protective order using DUOP: duplicative, unduly burdensome, oppressive, or to protect secret processes, etc. (or it’s privileged).

Question 34

On what basis can a party move to strike a juror for cause?

Answer 34

(LIB): Lack of Qualifications (e.g. not 18 or a U.S. citizen, inability to communicate in English), Incapacity, Bias: Actual or Implied

Question 35

What can be done in the event of abuse of the discovery process?

Answer 35

POSE: Protective Order sought (opposing party seeks me to release trade secrets, this request is duplicative, privileged, etc.), Orders Compelling Discovery sought (other side hasn’t answered), Sanctions for Violation of Order, Exclusion of Witness (haven’t identified this witness). **tough to get interference, must try to resolve the disco dispute on your own first!

Question 36

What is spoliation?

Answer 36

The intentional destruction of relevant evidence - allows the jury to draw a negative inference regarding your actions.

Question 37

On what grounds could a party seek a motion to vacate judgment?

Answer 37

Newly-discovered evidence that couldn’t have been found with reasonable diligent, lack of jurisdiction, fraud, or excusable neglect/irregularity in obtaining the judgment. (remember harmless errors are not enough)

Question 38

How can a moving party win a motion for summary judgment?

Answer 38

The case presents (1) no genuine issue of material fact… essentially, based on these facts could a reasonable juror go either way? (considering only admissible evidence) and (2) the moving party is entitled to judgment as a matter of law.

Question 39

On what basis can a party move to strike a juror for cause?

Answer 39

(LIB): Lack of Qualifications, Incapacity, Bias: Actual or Implied

Question 40

What is the test for granting a motion for Judgment as a Matter of Law (JMOL)?

Answer 40

Could a reasonable juror find, evidence to sustain a verdict for the non-moving party? All evidence is viewed in the light most favorable to the non-moving party.

Question 41

Under what circumstances would a motion for a new trial be granted?

Answer 41

JET: Juror Misconduct, Errors of Law - same sort of errors you could use as a basis for appeal, Timeliness of objection

Question 42

On what grounds could a party seek a motion to vacate judgment?

Answer 42

Newly-discovered evidence that couldn’t have been found with reasonable diligent, lack of jurisdiction, fraud, or excusable neglect/irregularity in obtaining the judgment.

Question 43

How does issue preclusion attach?

Answer 43

The issue has to have been fully litigated (not settled or stipulated to) that was necessary to the judgment. E.g. D unsuccessfully claims immunity in a suit by P - can’t raise it again in a second, unrelated suit: the issue was already litigated. Even another person can prevent D from raising immunity!

Question 44

How are pure questions of law reviewed on appeal?

Answer 44

De novo - no discretion to trial court’s judgments

Question 45

How are questions of fact reviewed on appeal?

Answer 45

Generally only overturned if there is “clear error” (trier of fact in better position than appellate court to resolve issues of fact).

Question 46

How are discretionary questions reviewed on appeal?

Answer 46

For abuse of discretion.

Question 47

Who is bound by claim preclusion?

Answer 47

The same parties (or those in privity with them) for subsequent claims stemming from the same injury.

Question 48

How does issue preclusion attach?

Answer 48

The issue has to have been fully litigated (not settled or stipulated to) that was necessary to the judgment. E.g. D unsuccessfully claims immunity in a suit by P - can’t raise it again in a second, unrelated suit (the issue was already litigated).

Question 49

In a diversity case, how is venue proper?

Answer 49

In a judicial district:

(a) where any defendant resides, if all defendants reside in the same state,
(b) where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property at issue is situated,
(c) where any defendant is subject to personal jurisdictional the time the action is filed (fallback)

Question 50

In non-diversity cases, how is venue proper?

Answer 50

Judicial district…

(a) where any defendant resides, if all reside in the same state
(b) substantial part of the events giving rise to the claim occurred/property is situated,
(c) where any defendant may be found (fallback)

Question 51

If forum non conveniens is granted, what happens?

Answer 51

The case is dismissed! That’s part of why it is such a high bar

Question 52

How does transfer differ from forum non conveniens?

Answer 52

Transfer can cure a defect in jurisdiction (mandator) and optional for convenience. Forum non conveniens results in dismissal of the case

Question 53

What is the timeline/deadline for removal of a case?

Answer 53

If “arising under” - 30 days from the time the case became removable. If “Diversity” - no removal for home-state defendants! If diversity and not a home-state D, they have 1 year from commencement of the action.

Question 54

What needs to be raised in the complaint for it to meet the pleading requirements of Twombly/Iqbal?

Answer 54

You must set forth plausible facts sufficient to establish a case in fact or law - must demonstrate that your claim is “plausible” and not merely “possible.” Legally conclusory statements are not allowed without a factual basis.

Question 55

Who can serve a complaint & summons on the defendant?

Answer 55

Someone over 18 who is not a party to the proceeding may serve the complaint.

Question 56

How may service of the complaint & summons be effectively done?

Answer 56

“Reasonable calculated… under the circumstances… to get to the person.” Includes leaving it in person with the defendant, with someone of “suitable age & discretion” who resides with them, an authorized/registered agent.

Question 57

When is the answer to a complaint due?

Answer 57

The answer is due within 21 days. If service is waived, the defendant gets 60 days to answer.

Question 58

How much time should a party be given to waive service of process?

Answer 58

“Reasonable time” - at least 30 days domestic, 60 days international - to return the waiver.

Question 59

What are the grounds for a 12(b) motion? When do 12(b) motions need to be raised?

Answer 59

12(b) motions are “use it or lose it.” If you don’t raise them in your first response, they are waived. These include:

• lack of subject matter jurisdiction
• lack of personal jurisdiction
• improper venue
• insufficient process/service
• failure to state a claim upon which relief can be granted
• failure to join a necessary party

Question 60

How does compulsory joinder look?

Answer 60

Are they a “party to be joined if feasible?”

1. In that person’s absence the court cannot accord complete relief among existing parties. Rule 19(a)(1)(A).
2. That person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may):
   a. (i) impair or impede the person’s ability to protect the interest; 19(a)(1)(B)(i) or
   b. (ii) leave an existing party subject to substantial risk of incurring multiple, or otherwise inconsistent obligations. 19(a)(1)(B)(ii)

And - CAN they be joined? Would there by personal jurisdiction and proper venue?

If they cannot be, does the case need to be dismissed for failure to join a necessary party?

Question 61

What would make a party necessary in such a way that failure to join them could result in a dismissal of a case?

Answer 61

a. Prejudice: extent which absence prejudices him or existing parties
b. Lessen/Avoid Prejudice: extent to which prejudice could be avoided
c. Adequate Judgment: judgment rendered in persons absence be adequate
d. Adequate Remedy if Dismissed: would Π have adequate remedy if action dismissed for nonjoinder
e. NOT appropriate for joint tortfeasors (Temple) or parties outside of a contract (Helzberg)

Question 62

What is the test for permissive joinder of plaintiffs?

Answer 62

a. The claim for relief arises from a single “transaction, occurrence, or series of transactions and occurrences;”
i. T/O is narrower than Gibbs CNOOF and Jones “loose factual connection” – but in Rule 20 maybe interpreted more generously then in 13(a) contexts

AND

b. There is a question of law or fact common to all plaintiffs which will arise in the action

Question 63

How does intervention (compulsory & permissive) work?

Answer 63

i. Compulsory. Rule 24(a).
1. Is there a right to intervention under a federal statute? Rule 24(a)(1).
2. Does the party have an interest (broader than a “right”) relating to the property or transaction that is subject of the action? Rule 24(a)(2).
a. Would the disposition of the action as a practical matter impair or impede ability to protect interest (similar to 19(a))? See Atlantis.
3. Are interests adequately represented? See Atlantis (772) (“Atlantis is without a friend in this litigation”)

ii. Permissive. Rule 24(b).
1. Was motion timely? Rule 24(b)(1).
a. Cite to Rule 5.
2. Does party have conditional right to intervene under federal statute? Rule 24(b)(1)(A).
3. Does party have claim or defense shared with the main action or a common question of law or fact? Rule 24(b)(1)(B).
a. A gov’t agency does not necessarily represent the interest of would be intervener. See Bustop (779)(there is a rebuttable presumption that gov’t agencies represent would-be intervenors)
4. Would the intervention delay or prejudice the adjudication of the original parties’ rights? Rule 24(b)(3).
5. Might the party permit intervention in a limited capacity, or is appearance as an amicus a better choice? (note: for res judicata amicus may be better)

Question 64

How do you examine whether or not a class can be certified for a class action?

Answer 64

(1) is there jurisdiction?
(2) Are the requirements of FRCP 23(a) met (four subcategories)?
(3) Does the class fall into one of the 23(b) categories (four options)?
(4) does the suit otherwise comply with procedural requirements?

Question 65

What are the 23(a) requirements to certify a class?

Answer 65

(1) Numerosity - impractical to join all defendants (as few as 16 but usually 40+ satisfies);
(2) Commonality - are there issues of law or fact common to all? (requires some glue… the capacity of a class-wide proceeding to generate a common resolution. Wal-Mart)
(3) Typicality - do the named plaintiffs have claims sufficiently similar to the class as a whole?
(4) adequacy of representation (counsel & named plaintiffs)

Question 66

What are the 23(b) categories to certify a class action suit?

Answer 66

(1) risk of individual suits could result in inconsistent relief (common for prisoners seeking injunctive relief)? (Then notice is optional + no opt out)
(2) is it a limited fund available? (then notice is optional + no opt out)
(3) Is it a civil rights action? (notice optional + no opt out)
(4) is it seeking money damages? Then ask about (1) predominance of common questions and (2) superiority of a class action to other methods of litigation… notice required + may opt out

Question 67

What is the deadline for service of process after filing a complaint?

Answer 67

Have to serve a copy of complaint/summons upon the D w/in 120 days of filing the complaint

Question 68

What is the deadline to answer a complaint?

Answer 68

21 days of the complaint + summons being served on you OR 60 days if service is waived

Question 69

What is the deadline for the U.S. government to answer a complaint?

Answer 69

60 days

Question 70

What is the deadline for amending a pleading as a matter of right?

Answer 70

W/in 21 days of receiving the pleading that requires a response or 21 days of service (whichever is earlier). You can also try to amend with the court’s leave - will be denied if BUUF or different party to be named.