Civ Pro

Question 1

Personal jurisdiction definition

Answer 1

Ability of court to exercise SMJ over a particular person or property

Question 2

Personal jurisdiction requirements

Answer 2

Must be

1) Authorized by statute (long arm
(2) Constitutional
- Minimum contacts
- Notice

Question 3

Three types of personal jurisdiction

Answer 3

(1) In personam - power over particular person
(2) Quasi in rem - determine rights of particular persons over a specific property
(3) In Rem - Adjudicate all rights against a person no matter where they are in the world over a piece of property

Question 4

In Personam jurisdiction granted how

Answer 4

(1) In the state and served notice
(2) Domiciled in forum state
(3) D is a citizen
(4) Consents to jurisdiction
(5) D’s acts bring him within long arm statute

Question 5

In Personam constitutional limits

Answer 5

Must have

(1) Minimum contact
(2) relatedness (specific or general jurisdiction)
(3) fairness - “does not offend traditional notions of fair play and substantial justice”
(4) notice

Question 6

In Personam - Minimum contact test

Answer 6

“Purposefully availabled herself”

If stream of commerce or internet issue - personal jurisdiction over D if there is some intent to serve/target a particular state with his product or internet service

Question 7

In Personam - Specific vs. general jurisdiction

Answer 7

General jurisdiction - court has jurisdiction over D irrespective of the claim.

Specific jurisdiction - court has jurisdiction over D due to the claim.

Question 8

In Personam - How is notice satisified

Answer 8

(1) serve on D or D’s agent
(2) If multiple D’s - the best available method. But if mail returned unclaimed, cannot rely on service if other practical means available

Question 9

How is in rem jurisdiction satisfied?

Answer 9

property being in the state is enough - serve notice to the property owner

Question 10

How is quasi in rem jursidiction satisified?

Answer 10

Minimum contacts required whether dispute is between the parties over property or dispute is between parties regardless of property

Question 11

Diversity Jurisdiction requirements

Answer 11

(1) Must be complete diversity
(2) No P can be citizen of same state as any D
(3) Amount in controversy must exceed $75,000

Question 12

Alienage Jurisdiction requirements

Answer 12

US Citizen vs. Alien - OK
US Citizen vs. Permanent resident of same state as P - NOT OK
Alien vs. Alien - NOT OK

Alien co. (PPB) + also citizen of US state (Inc.) vs. Alien - NOT OK

Question 13

Citizenship of Individual

Answer 13

Permanent home TO WHICH he intends to return

Question 14

Citizenship of corporation

Answer 14

Citizen of

(1) every state in which incorporated and
(2) one PPB

Question 15

Citizenship of unincorporated association (Partnership)

Answer 15

Citizen of

each state which any member is a citizen (limited and general)

Question 16

Citizenship of Class Actions

Answer 16

Citizen of all named members who are suing

Question 17

Supplemental Jurisdiction

Answer 17

Other claims in a diversity action that would not otherwise have diversity AND be based on a fed question can still be heard by the court if the claims arise from a “common nucleus of operative fact”

Question 18

Joinder or additional parties

Answer 18

Parties relationship or claim MUST invoke diversity or fed jurisdiction to be added.

IF it doesn’t, court MAY invoke supplemental jurisdiction if common nucleus test satisfied.

However, if original claim is based on diversity, then supplemental jurisdiction cannot be used for joinder of additional parties when
(1) P vs. impleaded/intervening parties - must be independent basis

Question 19

Cross claims allowed and do they affect jurisdiction?

Answer 19

Cross claims allowed

If no diversity or fed question - must satisfy supplemental jurisdiction test

Question 20

What can be added to make the $75,000

Answer 20

(1) Aggregation of separate claims against a single D
(2) Aggregation of separate claims against multiple D’s if D’s are jointly liable to P
(3) Punitive damages
(4) Attorney’s fees

Question 21

What can’t be added to make the $75,000

Answer 21

(1) Interest and costs
(2) Separate claims against one D
(3) Collateral consequences of the judgment (right to future installments on disability policy)
(4) Counterclaims

Question 22

Do counterclaims need their own jurisdictional basis?

Answer 22

NO, UNLESS they are completely independent from the claim, then must have their own fed question or diversity. Growing case law that supplemental jurisdiction can apply if related to the same facts at least.

Question 23

Who can remove to fed court?

Answer 23

ONLY THE DEFENDANT - watch for tricks where P wants to remove

Question 24

If Diversity is applied, what procedural and substantive law does the fed court apply?

Answer 24

Procedural - fed court

Substantive - state court

Question 25

What is considered substantive?

Answer 25

``` Statute of limitations Rules for tolling Choice of law rules Elements of a claim or defense Anything satisifying one of the three tests ```

Question 26

What is considered procedural?

Answer 26

Everything that is not the four considered procedural - court will use three tests to determine if substantive or procedural

Question 27

What are the three tests court uses to determine if an action is substantive or procedural?

Answer 27

(1) Outcome determination test (2) Balance of interest test (3) Forum shopping deterrence

Question 28

Outcome determinitve test

Answer 28

issue is substantive if it clearly affects the outcome

Question 29

Balance of interest test

Answer 29

if state has greater interest, it's substantive

Question 30

Forum shopping deterrence

Answer 30

if failing to apply state law would increase litigation in fed court, it's substantive

Question 31

What if a state statute combines procedure and substance

Answer 31

Split it up

Question 32

Conflicts in timing between hearing a case in fed court and state law modifying the law

Answer 32

Appeals review de novo. Therefore, if high state court renders a decision that is contrary now to the trial court outcome, decision of the trial court may be changed to conform to new decision up until final disposition of the final appeal.

Question 33

Does fed common law exist?

Answer 33

Yes - fed courts can fill in the gaps of fed law when interpreting - look at what the state does or what a majority of the states do

Question 34

Multi party Uniform Act

Answer 34

At least 75 people died, allowed to have minimal diversity (one P different than one D), and (1) One D must reside in different state from where accident took place (2) any two D's must reside in different states (3) substantial part of accident took place in different states

Question 35

Federal question jurisdiction arises when...

Answer 35

Civil action arising under constitution, laws, or US treaties AND pleaded in compliant. D's defenses based on fed law DO NOT give rise to fed jurisdiction

Question 36

Supplemental Jurisdiction restriction

Answer 36

P has both fed and state claims - fed court has discretion to exercise supplemental jurisdiction If it exercises to hear both claims, and fed claim dismissed, fed court can still hear the state law claim on its own

Question 37

What is venue

Answer 37

Relates to proper district in which to bring an action

Question 38

When is venue proper

Answer 38

(1) Judicial district where any D resides, if all D's in same state. IF NOT in same state, then cannot be where any D resides - must be where the claim occurred. (2) Substantial parts of events or omissions occurred (3) Substantial part of property (4) If 1-3 not satisified - any jurisdiciton that has personal jurisdiction over D

Question 39

Venue for individuals and permanent residence

Answer 39

Where he is domiciled

Question 40

Venue for corporations

Answer 40

Resides in district where it has the most significant contacts

Question 41

Venue for Nonresident

Answer 41

Any venue

Question 42

Can you waive venue or SMJ?

Answer 42

Venue, yes. SMJ, NO.

Question 43

Can you transfer venue?

Answer 43

Yes - if venue proper court direction if for the convenience of the parties (same law of original court still applies though!!!!!). Yes - if venue improper court must transfer to proper venue but case is not dismissed (new law of new venue now applies!!!!!)

Question 44

Elements required for removal

Answer 44

(1) Case could originally have been brought in fed court (2) If diveristy applies, No D is a citizen of the state where the action is filed. If multiple D's, all must agree to remove Can remove only the fed claim and keep state issue in state court Time limit in diversity action: 30 days once D receives the order, and not more than one year after commencement of action in state court

Question 45

What is a remand

Answer 45

P can file motion to remand to state court after removal granted. Can remand if (1) no fed matter anymore or (2) all fed questions resolved and only state law claims remain. Discretion is left to fed court.

Question 46

How to make service

Answer 46

(1) 18 years old (2) not a party to the action may service

Question 47

Personal Service

Answer 47

(1) Left at D's usual place of abode (2) with one of suitable age, OR (1) Serivce on D's agent, OR (2) Mail request to waive service

Question 48

Immuninty of service

Answer 48

(1) parties, attorney, witness enters state for another action (2) induced by P's fraud or deceit to enter state

Question 49

Preliminary Injunction requirements

Answer 49

Injunction prior to trial to preserve status quo Give adverse party (1) notice (2) opportunity to be heard

Question 50

Temporary Restraining Order requirements

Answer 50

If irrepreable injury will occur before hearing on preliminary injunction, get TRO to preserve status quo before hearing. Give adverse party (1) notice NO NOTICE required if (1) moving party states facts of irreparable injury she will suffer if TRO not granted (2) provide reasons why notice should not be required (3) moving party provides security to pay for any damages incurred if wrongfully restrained

Question 51

Complaint must state

Answer 51

(1) grounds for fed jurisdiction (2) short statement of claim - only needs to be plausible (3) demand for relief IF fraud/mistake in complaint - then show particularity IF special damages - then show specificity

Question 52

What Defenses MUST be raised on D's first motion or first answer or they are waived?

Answer 52

(1) lack of personal jurisdiction (2) improper venue (3) insufficient process (4) insufficient service

Question 53

What defenses can be raised anytime before start of trial?

Answer 53

(1) failure to state a claim on which relief can be granted | (2) failure to join an indispensable party

Question 54

What defense can be raised at any time until all appeals have been exhausted?

Answer 54

(1) lack of subject matter jurisdiction

Question 55

What must an answer to a complaint contain?

Answer 55

(1) Specific denial or admission of each averment in compliant, OR (2) general denial with specific admission, OR (3) Lack of knowledge, which counts as a denial FAILURE TO DENY CONSTITUTES AN ADMISSION

Question 56

Order of pleadings

Answer 56

(1) Complaint (2) D's pre-answer motions (if filed) (3) Answer (4) Reply

Question 57

How many days to answer a complaint?

Answer 57

21 days if formal service 60 days if formal service waived 14 days if pre-answer motion denied/ruled on

Question 58

Default judgment

Answer 58

Entered into against D because they didn't oppose the case

Question 59

Compulsory Counterclaim

Answer 59

Claim by D from the same transaction that MUST be raised or else it is barred. Court has supplemental jurisdiction over it

Question 60

Permissive Counterclaim

Answer 60

Any other claim that is not related to same transaction - must have it's own separate jurisdictional basis and no bar if not raised here

Question 61

Reply

Answer 61

Optional by P (unless ordered by court to file one) and no presumptions against him if he doesn't file one to D's allegations in their answer.

Question 62

Amendments to pleadings

Answer 62

Can do it - once within 21 days of service. Thereafter, need permission from court

Question 63

Relation Back doctrine

Answer 63

For statute of limitations purposes, amended pleading relates baqck to the original filing date if its from the same conduct, transaction, or occurrence

Question 64

Changing Party doctrine

Answer 64

For statute of limitations purposes, amended pleading relates back to the original filing date if (1) new party had sufficient notice of the action, (2) party knew that but for a mistake concerning her identity, would have been named originally

Question 65

Rule 11 - Certification of presenting any paper to court

Answer 65

certify that (1) paper is not presented for improper purpose (2) legal contentions warranted (3) have or will have after discovery evidentiary support (4) denials are based on lack of information and belief

Question 66

Compulsory joinder

Answer 66

Ask (1) Should the be joined? (2) Can they be joined? (3) Should the action proceed without absentee? If #3 is no then must be dismissed

Question 67

Permissive joinder

Answer 67

Parties may be joined if (1) Claim against each D out of same series of occurrences (2) question of fact or law common to all parties

Question 68

when is class action OK

Answer 68

(1) Class is so numerous that joinder is impractiable (2) Questions of law or fact common to class (3) Named parties interests are typical of class (4) Named parties will adequately represent class (5) One of these situations present (a) separate actions would create risk of inconsistent results (b) declaratory relief is appropriate for the class (c) common questions of law/fact predominate

Question 69

Class action diversity jurisdiction requirement

Answer 69

ONLY named parties must satisfy diversity

Question 70

Class Action Fairness Act Requirements

Answer 70

SMJ established if (1) any one class member is diverse from any D (2) amount in controversy is $5m in aggregate (3) at least 100 members Doesn't apply if state actors primary D's, fed security law involved, internal affairs of corp involved

Question 71

Shareholder derivitate suit

Answer 71

Shareholder sues to enforce right of the corp that those in charge refuse to assert, if (1) Was a shareholder at time of complained transaction (2) No collusion (3) Made a demand on directors first If based on diversity jurisdiction, then: Corp treated as P to determine amount in controversy Corp treated as D to determine diveristy among parties

Question 72

Whats a cross-claim

Answer 72

Co parties assert claim against each other arising out of same transaction - comes within court's supplemental jurisdiction

Question 73

Rule 26 discovery

Answer 73

Must disclose, WITHOUT BEING ASKED, information to other party info that is "reasonably available and not privileged or atty work product"

Question 74

What are the three types of Rule 26 discovery disclosures that must be made to other party without them asking?

Answer 74

(1) Initial disclosures (2) Expert testimony (3) Pretrial disclosures

Question 75

Pretrial disclousres

Answer 75

(1) witness list (2) list of documents and exhibits (3) impeachment witnesses never need to be disclosed at any time before trial

Question 76

Trial Prep Materials (those made in anticipation of litigation) discoverable?

Answer 76

NO - unless other party shows (1) substantial need (2) avoid undue hardship

Question 77

Pretrial discovery - Rule 26(f)

Answer 77

Parties required to sit down and try to settle, consider claims/defenses, make initial disclosures, and make discovery schedule

Question 78

Scheduling conference - Rule 16(b)

Answer 78

Court must hold a scheduling conference among the parties - can be held by any means. Sets key dates. Can only be changed by party by showing good cause

Question 79

Right to jury trial

Answer 79

MUST demand within 14 days after last pleading on jury-triable issue or else waived However, in a diversity case, court MUST permit jury case.

Question 80

What claims get tried first with jury?

Answer 80

(1) Legal claim tried first by jury then equitable claim to court (2) jury tries the facts, court tries the equity claim (3) damages by jury first then equitable claim

Question 81

Jury objections must given

Answer 81

before jury retires

Question 82

Jury deliberations

Answer 82

Can only use (1) papers or exhibits in evidence and own notes (2) no experimenting (3) cannot view propertywithout court order (4) communicatino with non-jury member prohibited

Question 83

Jury verdicts

Answer 83

(1) judge can order redeliberation or new trial if verdict erroneous (2) can completely change verdict if redeliberation ordered (3) New trial if juror gave false testimony during voir dire or concealed any material fact relating to qualification to serve as juror (4) juror may not testify except to outside influences.

Question 84

P's voluntary dismissal allowed when.

Answer 84

(1) any time before d's files an answer or motion (2) stipulation by all parties (3) If D filed answer or motion, then need leave of court (4) If counterclaim pending- no dismissal over D's objection unless counterclaim remains pending

Question 85

Summary judgment MUST be granted when?

Answer 85

from pleadings, affidavits, discovery there is no genuine dispute of material fact and moving party entitled to judgment as matter of law. Look for moving party submitting affidavit in support and other party not countering - they must counter or if they don't then rule for moving party. Can file at any time up to 30 days after close of discovery

Question 86

Directed Verdict

Answer 86

Grant for any party if reasonable jury would not have a legally sufficient basis to find for nonmoving party

Question 87

Judgment Notwithstanding the Verdict (JNOV)

Answer 87

Verdict could not be reached by reasonable persons. Must have moved for directed verdit at some time during trial. Within 28 days of verdict, file

Question 88

Motion for new trial

Answer 88

Within 28 days of verdit, file. Granted if error shown at trial

Question 89

Court can reliev party from final judgment if

Answer 89

(1) mistake, surprise or excusable neglect (2) Newly discovered evidence (3) Fraud, misrepresentation (4) judgment was void, (5) ANY REASON JUSTIFYING RELIEF

Question 90

How long till you can appeal

Answer 90

Must appeal within 30 days of entry of judgment

Question 91

What matters are reviewable by appeals court?

Answer 91

ONLY FINAL ORDERS: (1) Interlocutory orders - injunctions, appointments of receivers, patent infringement and property possession (2) Collateral to the main suit - and too important to avoid deferring

Question 92

Standards of review on appeal

Answer 92

On matter of law - de novo On questions of fact - not disturbed unless clearly erroneous On mixed questions - de novo Discretionary matters - discretion

Question 93

Res Judicata

Answer 93

Once judgment final, P barred from trying case again. Look at whether claim arises out of the same transaction or occurrence

Question 94

collateral estoppel

Answer 94

Goes to issue preclusion - once a court has decided an issue of fact or law necessary to its judgment, that decision ... preclude[s] relitigation of the issue in a suit on a different cause of action involving a party to the first case"

Question 95

Inpleader

Answer 95

D brings a third party into an action who may be liable to D for all or part of the judgment

Question 96

Interpleader

Answer 96

P possess property claimed by two or more people - let them hash it out

Question 97

SMJ of corporation

Answer 97

(1) Principal place of business (one location) | (2) Incorporation

Question 98

Interrogatories

Answer 98

(1) Only served on parties, not nonparties