Civ Pro

Question 1

What are the pre- and post-filing requirements?

Answer 1

Pre-filing notice is only necessary for a tort case against the federal gov’t. Post filing, serve a copy of the summons and complaint to the D w/in 120 days.

Question 2

What are the service requirements?

Answer 2

Due process demands reasonably calculated notice, satisfied by D’s waiver, personal delivery (registered agent for a corporation), or a method allowed by state law.

• May be by publication if the D fled/concealed himself.
• Serve the fed gov’t by personal/certified mail to US Atty’s Office in the district or registered/certified mail to US Atty General.

Question 3

How do you personally serve someone?

Answer 3

In the state where the court sits (or w/in 100 miles), anyone over 18 who is not a party may personally deliver the summons and complaint to the D or leave them with a resident of the D’s abode of suitable age and discretion.

Question 4

What does a court need to properly hear a case?

Answer 4

Personal jxn (may be waived, must challenge before/in answer), subject matter jxn (not waivable, challenge at any time), and proper venue (could be forum non conveniens?).

Question 5

When does a court have personal jxn?

Answer 5

A court has personal jxn if the D was properly served has minimum contacts with the forum state (domicile, or tag jxn or consent by K) such that jxn does not offend traditional notions of fair play and substantial justice, or under a long-arm statute if the D engages in conduct related to the state (if just transacting business, even if no physical presence, is there purposeful availment?).

Question 6

When does a court have subject matter jxn?

Answer 6

A federal court has subject matter jxn if there is a federal question (“arising under…”), diversity jxn (no P same state as any D, > $75,000 AIC), supplemental jxn (same case or controversy, common nucleus), removal jxn (if other SMJ, no D is citizen of that state).

Question 7

Where is the proper venue?

Answer 7

Venue if proper in the district where any D is a resident (so long as all Ds are in that state), or where a substantial part of the events or property are located, or if no proper venue otherwise, where there is personal jxn. (D may move for forum non conveniens but has a heavy burden.)

Question 8

What must be in the complaint?

Answer 8

The complaint must contain fair notice of grounds for jurisdiction, allegation of the facts, the right to relief, and the relief requested for each claim. It must survive a 12(b)(6) motion for failure to state a claim.
*Notice pleading requires only generally plausible allegations that are well-grounded in fact and law (Rule 11 sanctions if frivolous).

Question 9

What must be in the answer?

Answer 9

The answer must plead affirmative defenses and contain challenges to personal jxn, venue, and necessary parties, if any. It must be served w/in 21 days (60 if D waived service). It must contain counterclaims if compulsory (same t/o). Failure to answer will lead to a default (notice only necessary if D “appeared,” D may move to vacate for lack of personal jxn, otherwise ct will examine diligence/effect on P/merits).
*It may contain cross-claims (same t/o) or permissive counterclaims.

Question 10

How/when can you amend a pleading?

Answer 10

Parties get one amendment as a matter of right before response (21 days if no response due), only denied for bad faith/unfair prejudice/undue delay/futility. Claims always relate back to the date of the original pleading if same t/o. New parties only relate back if same t/o, notice, and should have known action would be brought (unless neglect/strategy or SOL passed).

Question 11

What parties are indispensable?

Answer 11

Persons needed for just adjudication must be joined if feasible to accord complete relief (except not all tortfeasors); case may be dismissed otherwise.

Question 12

What parties are permissive?

Answer 12

From same t/o and would not cause prejudice: impleader (D becomes third-party P against D2 who will be liable to D1 if P succeeds) or intervenor (third party practically and importantly impacted by litigation files own motion).

Question 13

When can a class action be brought?

Answer 13

CAFA jxn (optional) by minimal diversity and aggregate AIC of $5 million.
CULP+ certification of named P reqs: common questions, usual claim, large membership (joinder impractical), and protection of class interests, PLUS one add'l factor: risks of separate actions, conduct of OP (makes final relief appropriate), or common Qs trump individual Qs (difficulty in class management?).
*If by common Qs, give best notice practicable, members may opt out.  If not, no right to opt out.

Question 14

What are the methods of discovery, and what is discoverable?

Answer 14

PRIDE: production of documents, requests for admission, interrogatories, depositions, and physical/mental examinations.
The scope of discovery is broader than what would likely be admissible; it must only be relevant or likely to lead to admissible evidence.
*Initial disclosures (relevant docs, tangible items) must be automatically made w/in 14 days of the conference.
*No spoliation! Retain relevant evidence with a clear potential use.

Question 15

What discovery does a court limit by protective orders?

Answer 15

Discovery that is DUOP: duplicative, unduly burdensome, oppressive, or protects secret processes/customer lists/etc.
Also, attorney work-product (just documents and tangible items) is protected if prepared in anticipation for litigation (unless court-ordered due to substantial need and being the only source of the info).

Question 16

What remedies are there for discovery abuse?

Answer 16

POSE: protective orders, orders compelling discovery, sanctions for violation of an order (including dismissal w/ prejudice or default judgment if egregious), and exclusion of a witness.

Question 17

What are the requirements for preliminary equitable relief to restrain a party?

Answer 17

RAMP: risk of irreparable harm, appropriate weight of harm distribution, merits likely successful, and public interest not harmed
*Can get a TRO for 10 days if not even time for notice/opp to be heard.

Question 18

When is summary judgment appropriate?

Answer 18

Before trial, the P or D may argue the case has no genuine issues of fact (or will certainly prevail despite an issue of fact) and she is entitled to a judgment as a matter of law. The OP must then make an affirmative showing of a material issue of fact.

Question 19

How can you challenge the selection of a jury member?

Answer 19

3 peremptory challenges w/o any reason stated (not solely race/gender though!), unlimited challenges for cause (lack of qualifications, incapacity, or bias)

Question 20

When will jury misconduct allow for setting aside the verdict?

Answer 20

A verdict will be set aside for: improper actions (not improper reasoning), examining the severity of misconduct and degree of prejudice; bias or prejudice concealed during voir dire; a recording/reporting error.

Question 21

When is a judgment as a matter of law appropriate?

Answer 21

During trial, when the moving party shows that there is no evidence or reasonable inference therefrom by which a jury could find for the OP.
*A court can find this sua sponte!

Question 22

What are the grounds for a post-trial motion for a new trial?

Answer 22

Irregularity in proceedings, misconduct (by any person involved), significantly wrong damages, newly discoverable evidence, errors of law.
*Must have raised issue during trial, must file no later than 28 days after entry of judgment.

Question 23

What are the grounds for a post-trial motion to vacate the judgment?

Answer 23

Clerical errors, lack of jxn, fraud, newly discoverable evidence, NOT errors of law.
*Bring w/in a reasonable time, generally one year.

Question 24

When can you appeal?

Answer 24

An appeal is allowed as a matter of right from a final judgment or termination of the action. Interlocutory appeals are only allowed to prevent irreparable harm or make decisions of substantial importance to the outcome (or a matter totally collateral), or consider writs of mandamus/prohibition in extraordinary circumstances.

Question 25

How do you make a proper and timely appeal?

Answer 25

File at the trial court w/in 30 days of the entry of judgment (60 if the gov’t was a party).

Question 26

What is the standard of review on appeal?

Answer 26

Questions of law are reviewed de novo, factual determinations are affirmed if supported by substantial evidence (most deference), discretionary rulings are reviewed for abuse of discretion. The error must have been raised below (unless con’l issue or jxn), and the appellate court may sustain the verdict on any theory.

Question 27

When does res judicata/claim preclusion apply?

Answer 27

A final judgment is binding between the parties and any persons in privity. The same t/o may not serve as the basis for another lawsuit.

Question 28

When does collateral estoppel/issue preclusion apply?

Answer 28

An issue that was actually decided in reaching a final litigated judgment is not subject to relitigation between the same parties, or by non-parties if there is a substantial legal relationship or the non-party had control over the first litigation (more likely used to protect a D previously exculpated than to hold a D automatically liable again).