Civ Pro

Question 1

Subject Matter Jurisdiction

Answer 1

• concerns the power of the court to decide the case
• federal courts have limited SMJ
• must be pleaded in every case, and if challenged must be proved
• cannot be waived
• can be challenged by any party at any time
• If federal and state claims arise out of same operative facts the federal court may hear both claims.
  *

Question 2

Federal Question

Answer 2

• Federal q jurisdiction exists if the Ps claim is based on federal law
• a federal defense does not create federal q jurisdiction

Question 3

Diversity Jurisdiction

Answer 3

• Reaches disputes between citizens of different state or a state and a foreign country, and amount in controversy over $75 k.
• Requires complete diversity - every citizenship on P side is different from every citizenship on D side
  
  • exceptions for special interpleader and large class action with more than $5m or mass torts
• Must exist at time of filing

Question 4

Supplemental jurisdiction

Answer 4

A question of power, whether to exercise that power lies within the sound discrretion of the DC.

Question 5

Counterclaims

Answer 5

A fed court sitting in diversity has supplemental jurisdiction over a compulsory counterclaim - a claim that arises out of the same transaction or occurrence. This claim can be heard regardless of the jurisdictional amount. A claim that does not arise out of the same transaction can only be heard if it meets the requirements of diversity.

Question 6

Cross-claims

Answer 6

A federal court may hear these - which must arise out of the common nuclus of operative facts as the main claim - without regard to the amount in controvery or the citizenship.

Question 7

Permissive Joinder

Answer 7

If the claim of one diverse plaintiff satisfies the jurisdictional amount, a fed court may hear the claims of other diverse plaintiffs, regardless of amount, so long as they share a common nucleus of operative facts.

Question 8

Removal v Transfer

Answer 8

• Removal moves case from state to fed court.
• Transfer moves case from one fed jurisdiction to another fed court.

Question 9

Removal

Answer 9

• Removal is proper only if the case could have originally been brougt in fed court
• Only the D may remove
• removal based on fed q is proper only if fed q appears on face of well-pleaded complaint
• removal based on diversity jurisdiction is proper only if
  
  • There is complete diversity;
  • The amount in controversy exceeds $75k; and
  • The case is brought in a state of which no D is a citizen.

Question 10

Personal Jurisdiction

Answer 10

• Personal jurisdiction concerns the power of the court to adjudicate the rights and liabilities of this defendant. Because the plaintiff has volunteered to come to this court, personal jurisdiction always concerns the D
• Personal jurisdiction is generally the same in federal and state court. That is because federal courts almost always use the long-arm statutes of the states in which they sit
• Types
  
  • In personam (99%) - action against the person
  • in rem - action against a thing
  • Quasi in rem - sort of against a thing
• Can be waived, and a defect in PJ must be raised at first opportunity.
• Fed Courts can assert broader PJ than states when:
  
  • When a federal statute, such as the Federal Interpleader Act, authorizes nationwide service of process; or
  • Under the Bulge Provision of the Federal Rules, which allows service on an impleaded third-party defendant under Rule 14 or a joinder of necessary party under Rule 19 anywhere within 100 miles of the federal courthouse, even if the bulge extends into another state.

Question 11

Personal Jurisdiction Questions

Answer 11

• Is this assertion of personal jurisdiction authorized by statute or rule of court
• Is this assertion of personal jurisdiction permitted by the U.S. Constitution

Question 12

Personal Jurisdiction - Constitutional Aspect

Answer 12

• o Due process requires that there be sufficient contact between the defendant and the forum state, such that it is consistent with traditional notions of fair play and substantial justice to sue the defendant here. Basically, is it fair?
• In assessing minimum contacts, look for purposeful availmentof the protection of the forum’s laws by the D. Contacts between
  the forum and the P do not suffice.

Question 13

General In Personam Jurisdiction

Generally, federal courts follow the personal jurisdiction law of the states in which they sit. There is some variation state to state, but not much. The following typically support general in personam jurisdiction, which means that the defendant can be sued on any claim whatsoever, even if it is unrelated to the defendant’s contacts with the forum state.

Answer 13

• physical presence, unless the defendant was in the state only to answer a summons or was brought there by force or fraud.
• domicile
• consent, which can be given by contract or by appointing an in-state agent for receiving service of process.
• For a corporation, the state of incorporation
  o For any kind of business (including sole proprietorship), the principle place of business
  o For foreign corporations, doing business in the state. This requires more than a single transaction. It requires substantial activity in the state. Maintaining an informational website is not sufficient; maintaining a website to conduct business transactions is.

Question 14

Specific In Personam Jurisdiction, In Rem, Quasi in Rem

Answer 14

• Specific in personam jurisdiction is based on state long-arm statutes. Typically, those statutes reach very far indeed, but only for claims arising out of the defendant’s contacts with the forum. Almost everything comes within the typical state long-arm statute, so long as the claim arises
• Applies against any kind of property (real or intangible) as long as the prop is in state
• Quasi In Rem Jurisdiction: Tries to use in-state property as a basis for forcing an out-of-state defendant to litigate an unrelated claim. Today, quasi in rem is subject to the same min contacts test as in personam jurisdiction. Therefore, it is much less important.

Question 15

Notice and Service of Process

Answer 15

• Personal service is preferred. It consists of personal delivery, leaving the summons at the defendant’s home, delivery to anauthorized agent, or delivery by registered mail, return receipt requested. All work. There is no required preference among them.
• For an infant, serve the infant and a parent or guardian.
• For an incompetent, serve the incompetent and her guardian.
• For a partnership, serve a general partner, an attorney in fact, or an authorized agent for receiving service of process.
• For a corporation, serve an officer, director, or managing agent, or leave at his office.
• For non-resident motorists, states generally allow service on some state official, such as the Commissioner of Motor Vehicles, who is required to forward a copy to the out-of-state driver.
• For in rem and quasi in rem actions, diligent effort to make personal service is required. Notice by publication is not sufficient if the names and addresses of claimants can be discovered with reasonable effort.

Question 16

Venue

Answer 16

• Improper venue can be waived
• Must be raised at first oppertunity
• Federal venue is proper
  
  • where any D resides, if all reside in the same state
  • where the claim arose (substantial part of the events or omissions occured
  • If neither of the above - any district where a D can be served
  • Ps residence does not count
• D resides
  
  • individuals - domicile
  • businesses - every district where PJ can be asserted
• Removal to fed court - venue is automatically proper in district where the state court sits.
  *

Question 17

Venue - Transfer

Answer 17

• may be transfered for convenience to a district with proper venue, without proper venue if all parites consent.
• A suit brought in district without proper venue may be transferred to a district with proper venue or dismissed.
• If the original court had proper venue, the law of the transferor controls.
• If the original court lacked proper venue, the law of the transferee controls.

Question 18

Erie Doctrine

Answer 18

• Erie means simply that in diversity cases, federal courts apply state substantive law.
• State Substantive Law: For purposes of Erie includes:
  
  • The substantive rules that determine who wins and who loses;
  • state laws that set time limits on state causes of action;
  • Rules allocating the burdens of proof on state claims; and
  • State rules on choice of law.
• Federal procedures apply in federal court for adjudication of state-law claims. Federal procedures include anything covered by the Federal Rules of Civil Procedure.

Question 19

Types of pleadings

Answer 19

• Complaint - which is used to state a claim for relief. Either the plaintiff or the defendant may file a cross-claim against a co-party. If the defendant impleads a third-party defendant, that’s called a 3rd party complaint
• The opposing party filed an answer, which is used to respond to a complaint. It may contain affirmative defenses, counterclaims and in some cases, a BLANK.
• Reply, which is used to answer a counterclaim (the plaintiff’s answer).

Question 20

Evidence in pleading

Answer 20

• In federal practice, pleadings need not spell out the evidence; they need only give notice of the pleader’s contention. All that is required is a short and plain statement of the claim. Most things can be alleged generally.
• Except for special damages - damages that do not flow logically from the alleged wrong
  
  • You are hit by an automobile and you claim medical expenses, personal injury, pain and suffering, and lost wages—all those things may be alleged generally. But let’s say you allege in your complaint that you missed your closing session, you couldn’t sign your closing documents, and you have enormous economic damages. That is not the type to ordinarily flow from the accident, so those damages must be specially pleaded.

Question 21

Defense Motions Against the Complaint

Answer 21

• Motion to dismiss
  
  • lack of SMJ
  • lack of PJ
  • Improper venue
  • failure to state a claim upon which relief can be granted
  • failure to join a necessary party
  • forum non conveniens
• Motion for judgment on the pleadings
  
  • rare
  • If there is any factual dispute, summary judgment will resolve the dispute. Judgment on the pleadings only works when the complaint and the answer agree about all the relevant facts.
• Motion for a more definite statement
  
  • asks for pleading to be more specific - judges disfavor
• Motion to strike
  
  • Can be used to delete from pleadings matters that are scandelous or prejudicial and not relevant to the case at hand.

Question 22

Answer

Answer 22

• Used to respond to any form of complaint
• Contains responses, may also include affirmative defenses and in some cases a counterclaim.
  
  • affirmative defenses - duress, contrib neg, assump of risk, fraud, statute of limitations…
• Failure to respond is admission

Question 23

Amendments to pleadings

Answer 23

• As of right - may be amended once within 21 days
• by leave of court - should be freely granted
• Statute of limitations and relation back
  
  • In some circumstances, an amendment is deemed to relate back to the date of the original pleading.
  • If the statute of limitations has not yet run, it does not matter. But, if the statute of limitations has run, then relation back determines whether the amended pleading is timely.
  • An amendment relates back to the date of the original if it concerns the same conduct, terms, or occurrence as the original pleading. The key is notice at original pleading.
• Amendment to add a party
  
  • An amendment to change or add a defendant must concern the same conduct, transaction, or occurrence as the original pleading, and the party to be added must have known or had reason to know that the action should have been brought against the new party

Question 24

Pleading Certifaction

Answer 24

• Pleadings and all other docs must be certified by attorney of record certifiying
  
  • good faith a list of other stuff, but basically good faith and that the attorney can be made to bear the cost of baseless filing.

Question 25

Permissive Joinder of Parties

Answer 25

• any # of Ps may join if they assert claims arrising out of same occurance and there is common Q of law or fact
• can’t join if presence would destroy complete diversity
• if over $75k, smaller claims can come in through sup jurisdiction.

Question 26

Compulsory Joinder of Parties (Ds)

Answer 26

• A party whose presence is necessary must be joined if feasible.
• No party can be joined whose presence would destroy complete diversity
• No party can be joined without personal jurisdiction, but in addition to all other grounds of personal jurisdiction, a necessary party may be served within 100 miles of the courthouse.
• If a necessary party cannot be joined, the court decides whether to continue or dismiss the suit

Question 27

Intervention (primarily by Ps)

Answer 27

• Intervention as of right may be had when the outsider claims an interest in the lawsuit that, as a practical matter, will be compromised by the disposition of the pending action.
• Permissive intervention may be allowed whenever there is a commonw q of law or fact between the main claim and the intervenor’s claim.
• No supplemental jurisdiction for either kind of intervention. No one can intervene whose presence would destroy complete diversity or who does not claim $75,000

Question 28

Interpleader

Answer 28

• A device to avoid multiple liability on competing claims to the same property. The party possessing such property is the stake holder, who can interplead the claimants and resolve all claims in a single action. Interpleader can be used either offensively by a stakeholder-plaintiff or defensively by a stakeholder-defendant who has been sued by a claimant.

Question 29

Joinder of Claims

Answer 29

• As between the same plaintiff and the same defendant, there is no limitation on joinder of claims.
• All claims between the same parties may be added to exceed $75,000.

Question 30

Counterclaims

Answer 30

• Compulsory counterclaims
  
  • must be pleaded now or will be lost forever
  • compulsory if it arises out of the same trans or occurance as the main claim
• permissive counterclaims
  
  • does not arise out of same trans or occurance
  • independent jurisdiction is required
  • must be based on fed Q or there must be diversity with $75k in issue
  • barred if not within statute of limitations

Question 31

cross-claims

Answer 31

• a claim against a co-party
• must arise out of same trans or occurance as the main claim but are never compulsory - could be brought another day.

Question 32

Impleader (3rd party practice)

Answer 32

• allows a D to implead someone who is or may be liable to the D for all or part of the Ps claim against them.
• The impleaded party is called the 3rd party D and the original D is the 3rd party P.
• Supp J covers the Ds claim against the impleaded 3rd party but not any claim by the P against the 3rd party D. A claim by the P against the 3rd party D must be based on fed law or must maintain diversity and be worth $75k
• no party can be impleaded without PJ but in addition to all other grounds of PJ a 3rd party D may be served within 100 miles of courthouse.

Question 33

Class Actions

Answer 33

• Prereqs
  
  • numerousness of parties
  • common Qs of law or fact
  • SOMETHING of claims by the class reprenstative
  • Adequate represntation by the representatives lawyer
  • Diversity J exists if the named Ps are completely diverse from opposing parites and if at least one P has a $75k claim.

Question 34

Mandatory Disclosures

Answer 34

• Initial disclosure of contact info
• expert witnesses to be used with qualifiactions
• list of all witnesses and exhibits

Question 35

Scope of Discovery

Answer 35

• not limited to admissible evidence
• an discover anything that migh be admissable or might lead to something admissable - relevance is key.
• Exceptions
  
  • evidentiary privilege (attorney-client privilege)
  • work produce rule
• Experts - final reports and other info
• Protective orders - court can do what is necessary to prevent discovery from being excessively burdensome

Question 36

Discovery Devices

Answer 36

• Oral deposition - asked and answered orally under oath
  
  • limit to 10 depos of 1 day unless court allows more
• Written deposition - rare
• interrogatories - questions and answers in writing, limited to 25 and only against a party
• Discovery and Inspection of Documents and Land (only to docs and land under control of party)
  
  • “request to proeuce and permit inspection”
• Physical and mental exam - hard to get
  
  • only of a party
  • only when condition has been put at controversy and only for good cause
• Request for admission
  
  • failure to respond

Question 37

Discovery Sanctions

Answer 37

• Court can impose sanctions in three instances of complete default
  
  • failure to attend one’s own deposition
  • failure to respond to interrogatories
  • failure to respond to a request for documents/things

Question 38

Pre-Trail Procedure

Answer 38

• Pret-trail conference - attended by attorneys who will conduct trail
• Termination without trail
  
  • Judgment on the pleadings - no factual dispute is raised
  • default judgment - no need for trail
  • voluntary dismissal - without prejudice
  • involuntary dismissal - with prejudice (adjudication on merits and has full res judicata effect)
  • SJ

Question 39

Jury Trail

Answer 39

• 7th amdt guarantees trail by jury in civil cases
• Admiralty and equity do not require a jury trial. Equity includes injunctions and requests for specific performance of a contract.
• When legal issues and equity issues overlap in the same case, try the legal issues first. Otherwise, the right to jury trial on the legal issue (e.g., claim for damages) would effectively be
  foreclosed by the prior resolution of the equity issue (e.g., specific performance)
• A demand for trial by jury must be made not later than 14 days after service of the answer or other pleading directed to the issue on which jury trial is sought.
• Selection of the jury allows 3 peremptory challenges by each side, but they cannot be exercised to purge prospective jurors on the basis of race or gender.
• In a bench trial the judge is required both to make findings of fact and to state conclusions of law.
• Instructions: Any objection to the instructions given by the trial judge must be made before the jury retires. Only timely objection preserves the point for appeal.

Question 40

Motion for Judgment as a Matter of Law and Renewed Mtion for Judement as a Matter of Law (formerly Directed verdict and JNOV)

Answer 40

• Judgment as a matter of law
  
  • Essentially the same as a motion for summary judgment but made at the close of the
    plaintiff’s case and again at the close of all the evidence.
  • The motion is granted if the evidence, viewed in the light most favorable to the opposing
    party and under the burden of proof imposed by the substantive law, could not support a
    contrary verdict and the moving party is therefore entitled to judgment as a matter of law
• Renewed Motion for Jugment as a matter of law
  
  • A motion for judgment as a matter of law made at the close of all the evidence may be made if the jury reaches a contrary verdict.
  • The standard is the same—that the evidence cannot support a verdict and the moving party is therefore entitled to judgment as a matter of law.
  • A motion at the close of all the evidence is a prerequisite for renewing the motion post-verdict. If you fail to ask originally, you cannot renew.

Question 41

Interlocutory Orders

Answer 41

• Some interlocutory (non-final) judgments are immediately appealable.
• Interlocutory appeal as of right may be had for injunctions and for orders changing
  or affecting property possession.
• Interlocutory appeal may be had on leave of court if both trial and appellate courts agree. The trial court must issue a certificate for interlocutory appeal stating that the order involves a congrolling Q of law and that immediate appeal may
  materially advance termination of the litigation.
  
  • The appellate court must agree.
• Collateral order doctrine authorizes immediate appeal of orders separable from and collateral to the merits and too important to deny immediate review. Common examples are orders denying qualified immunity in constitutional tort cases and orders denying dismissal for forum non conveniens.
• Mandamus provides for immediately appellate correction of an abuse of authority.
• Class actions: Appellate courts have discretion to hear interlocutory appeals from orders certifying or refusing to certify a class action.

Question 42

Standards of Review for Civ Pro

Answer 42

• For matters of law, appellate review is de novo.
• For findings of fact, appellate review is more limited. Jury verdicts must be affirmed if supported by substantial evidence. Judge findings must be affirmed unless clearly erroneous.
• For matters of discretion, the standard of appellate review is abuse of discretion.

Question 43

Full Faith and Credit

Answer 43

Courts in the United States, whether state or federal, must give full faith and credit to judgments rendered by other courts, provided that the rendering court had jurisdiction.

Question 44

Former Adjudication Doctrines

Answer 44

• Res judiciata - subsequent litigation suit barred by claim preclusion
• collateral estoppel - subsequent litigation barred by issue preclusion
• Ask first whether claim preclusion bars the second suit. If so, the question is at an end.
• If not, ask whether issue preclusion bars the second suit.
• Always ask these questions separately and in order.

Question 45

claim preclusion

Answer 45

• Claim preclusion has three requirements:
  1) There must have been a final judgment on the merits in
  the first suit
  2) The second suit must be between the same parties or their
  successors in interest
  3) The second suit must involve the same claim
• Final judgment on the merits does not necessarily require trial. It includes a default judgment, summary judgment, and dismissal with prejudice.
• Re-litigation between the same parties or their successors in interest.
  
  • Both parties must have been parties to the prior lawsuit.
• The only exception is when re-litigation occurs between those in privity with the original parties, in other words, their successors in interest.
• Examples of successors in interest include:
  
  • The assignor and assignee of a claim;
  • A decedent and the executor of the estate; and
  • The executor of an estate and persons who claim under the will.
• Re-litigation must involve the same claim. All legal theories to recover from one defendant for harm arising out of a single transaction or occurrence are one claim. There is a separate claim against each defendant, but there is not a separate claim for each theory.

Question 46

Issue Preclusion

Answer 46

• Issue preclusion also has three requirements.
  1) The same issue of fact must arise in two suits
  2) That issue must have been actually and necesserilly decided in the first suit
  3) The party to be precluded must have been a party to the first suit.
• Same issue of fact must arise in two suits. It doesn’t matter if the two suits involve entirely different claims, so long as they have a factual issue in common.
• The issue must have been actually and necessarily decided in the first suit. A default judgment
  has full claim preclusive effect as a final adjudication on the merits, but has no issue preclusive effect, given that no factual questions were actually litigated and decided.
• The party to be precluded must have been a party to the first suit. That is not necessary for the party invoking preclusion, as there is no longer a requirement of mutuality of estoppel. At least
  that’s true for the defensive use of issue preclusion. Whether a succession of plaintiffs could invoke issue preclusion offensively is not entirely clear.