Civ Pro

Question 1

If the plaintiff has both federal and state-based claims against a D, and diversity jurisdiction does not exist, does the federal court have jurisdiction?

Answer 1

Federal court has discretion to exercise supplemental jurisdiction over the state law claim if the two claims derive from a common nucleus of operative fact

Question 2

In a federal case based on diversity, when is the action deemed commenced for statute of limitations purposes?

Answer 2

Apply the state rule in which the federal court sits - when either the complaint is filed or process is served on the opposition party

Question 3

Immunity from service of process

Answer 3

If a person travels to another jurisdiction for court purposes, he may not be served with process while in the other jurisdiction (applies to witnesses, parties, and attorneys)

Question 4

When can the D raise failure to state a claim upon which relief can be granted?

Answer 4

At any time

Question 5

Which defenses MUST be raised in D’s FIRST response (whether pre-answer motion or answer) or else is waived?

Answer 5

• Lack of personal jurisdiction
• Improper venue
• Insufficient service of process

Question 6

Which defenses can be raised at any time through trial?

Answer 6

• Lack of subject matter jurisdiction
• 12(b)(6): Failure to state a claim
• Failure to join indispensable party

Question 7

Generally, amendments to pleadings relate back to the date that the original pleading was filed if:

Answer 7

The amendment concerns the same conduct, transaction or occurrence that was set forth in the original pleading
– can also add a new cause of action if it derives from the same facts

Question 8

When is the court REQUIRED to join an absentee as a party to the case?

Answer 8

If the court determines that:
i) the absentee has an interest in the subject matter of the litigation
ii) the court has PJ over him
iii) joining him would not destroy jurisdiction or venue
I.e., the party has an interest in the litigation and the court COULD join him - then the court MUST do so - no discretion.

Question 9

Factors for allowing a class action lawsuit:

Answer 9

Rule 23

(i) The class is so numerous that joinder of all members is impracticable;
(ii) There are questions of law or fact common to the class;
(iii) The named parties’ interests are typical of the class;
(iv) The named representatives will ensure the fair and adequate representation of the interests of absent members of the class; and
(v) The action meets the definition of any of the three types of class actions

Question 10

Special verdict vs. General verdict with special interrogatories

Answer 10

General verdict with special interrogatories - a verdict in which the jury finds for the plaintiff or defendant, determines the damages or relief to be given, and answers specific questions of fact.

Special verdict - the jury receives a series of questions regarding each ultimate fact, then the court makes legal conclusions based on those facts

Question 11

What is the standard for summary judgment?

Answer 11

There is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law

• • Moving party bears the burden of putting forth evidence that there is no material fact in dispute
• • Based on the pleadings, affidavits, and discovery materials

If a party fails to support an assertion of fact or fails to address the other party’s assertion of fact, the court may consider the fact undisputed for purposes of the motion

Question 12

What is the standard for judgment as a matter of law (JMOL)?

Answer 12

Granted only after the nonmoving party has been fully heard, and a reasonable jury could not have a legally sufficient basis to find for the nonmoving party on that issue

Question 13

When can a new trial be granted?

Answer 13

1) excessive verdict
2) inadequate verdict
3) verdict is against the weight of the evidence
4) an error at trial
5) jury misconduct

Question 14

For claim preclusion to apply, it must be shown that:

Answer 14

(i) the earlier judgment is a valid, final judgment on the merits;
(ii) the cases are brought by the same claimant against the same defendant; and
(iii) the same cause of action is involved in the later lawsuit

Question 15

When can the Supreme Court hear appeals directly from federal district courts?

Answer 15

Can hear on direct appeal any order granting or denying an injunction in any proceeding required to be heard by a three-judge district court panels

Question 16

Where is venue proper?

Answer 16

i. Where all ∆s reside; or
ii. If all ∆s reside in the SAME state, then venue would be proper in a district where any ∆ resides
iii. Where a substantial part of the claim arose

*For a nonresident of the U.S. (alien), may be sued in ANY district (as long as state has PJ over this ∆) - doesn’t have to be district where claim arose

Question 17

Requirements for a party to move for judgment notwithstanding the verdict (JNOV)?

Answer 17

JNOV = renewed judgment as a matter of law

• • moving party moves to set aside the verdict after jury comes back with decision, claiming that verdict is one that reasonable ppl could not have reached
• • should only be granted if a reasonable jury would not have a sufficient basis for its findings
• • Party must have moved for a directed verdict at some time during the trial (moved for judgment as a matter of law)

Question 18

What is merger?

Answer 18

Merger occurs if the plaintiff WINS
– all her related claims “merged” with the final decision in the first case such that she cannot relitigate the cause of action later
(claim preclusion)

Question 19

When is notice to absent class members required in a class action lawsuit?

Answer 19

Only for “common question” class actions

• • common questions of fact or law (class members all faced harm in the same manner and during same period of time); and
• • class action is superior to other methods of adjudication

**Notice is NOT required for all other types of class actions!

Question 20

If a party decides to call an additional witness after the final pretrial conference, can he do so?

Answer 20

Only if the court modifies the pretrial order

• • the pretrial order controls the subsequent course of the trial
• • will be modified only to prevent manifest injustice
• • court may also modify the order after trial has begun

Question 21

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

Answer 21

Counterclaim - the D asserts a claim against the P
Cross-claim - D1 asserts a claim against another D2

*P v. D1 and D2 – If D1 then asserts a cross-claim against D2, and then D2 asserts a claim against D1, D2’s claim is a counterclaim b/c it is against the D’s claim, who is the “P” btwn the two of them

Question 22

In an action to recover personal injuries resulting from a car accident, must the D disclose existence of insurance policy?

Answer 22

Yes - part of initial disclosures - D must disclose any insurance that might cover the judgment

Question 23

What is the time limit for D to remove case to federal court?

Answer 23

Within 1 year after action is commenced in state court

– applies even if the case becomes removable after this time limit is up (ex. if non diverse D is dismissed)

Question 24

How is the citizenship of a limited partnership determined?

Answer 24

Citizenship of ALL its partners - general + limited partners

Question 25

A fed court in State B, for a breach of K action entered into State C, will apply what substantive law?

Answer 25

Apply State B’s substantive law! This includes applying State B’s choice of law rules, which might end up applying a diff state’s laws to the issues

Question 26

In an in rem action, how should interested persons be notified?

Answer 26

At least by ordinary mail

Question 27

When may an attorney be sanctioned under Rule 11?

Answer 27

In signing any pleadings, attorney represents that he has made a reasonable inquiry into the factual and legal grounds for the pleadings - attorney can be sanctioned if he violates Rule 11

Question 28

What are the time restrictions for D to remove the case to federal court?

Answer 28

1) if case is based on diversity, must be removed within 30 days after D LEARNS that case has become removable (i.e., D receives order/motion)
2) BUT case may NOT be removed more than 1 year after it was commenced in state court

Question 29

When can plaintiff remove case from state court to federal court?

Answer 29

NEVER - only defendants may remove.

[D cannot “join” in her removal if D has no independent right of removal - i.e., b/c she’s an instate D]

Question 30

What will the court do if venue is improper?

Answer 30

Transfer the case to a place of proper venue instead of dismissing case, unless transfer would lead to injustice

Question 31

When is removal allowed?

Answer 31

D (not P) can remove case from state court to be heard in federal court if -

1) case could have originally been filed in federal court; and
2) for diversity cases, no D is a citizen of the forum state (doesn’t matter for FQ cases)

*Initial state court does not have to have jurisdiction to allow federal court to hear case

Question 32

Even if diversity jurisdiction is met, can a federal court hear proceedings on domestic relations or probate?

Answer 32

NO - no subject matter jurisdiction

Question 33

Can a plaintiff aggregate claims against a D to meet amount in controversy for diversity jurisdiction in federal court?

Answer 33

Yes - can aggregate all claims (even unrelated claims) against a single D,
- Cannot aggregate claims against different Ds

Question 34

If a case in state court raises both a federal question and would satisfy diversity, on what grounds is case removed?

Answer 34

On federal question grounds - FQ jurisdiction trumps diversity (we don’t look at diversity unless there is no FQ jurisdiction)

Question 35

Can an action raising federal law be brought in state court?

Where do Fed Cts have exclusive jurisdiction?

Answer 35

Yes - state and federal courts have concurrent jurisdiction over most types of actions

Fed court has exclusive jurisdiction over: bankruptcy, copyright and patent, antitrust

Question 36

How is diversity determined for a fed court to have SMJ over a class action?

Answer 36

Only look at citizenships of the named representatives against citizenship of the D

Question 37

A US citizen who lived in State A for awhile, but now lives in foreign country - can he be sued in federal court on the basis of diversity jurisdiction?

Answer 37

No - not a citizen of any state, and not an alien

Question 38

When can a default judgment be entered into by a clerk?

Answer 38

If all 4 requirements are met:
i) claim is for a sum certain
ii) D failed to appear
iii) D is not an infant or incompetent person
iv) damages amount requested is not greater than amt requested in the complaint
=> no additional notice to D is required

If any of the 4 are not met, then need to get a judge

Question 39

Requirements for issue preclusion

Answer 39

i. Case 1 ended in valid, final judgment on the merits
ii. Same issue was actually litigated and determined
iii. This issue was essential to the judgment
iv. Issue preclusion can only be asserted against somebody who was a party to Case 1 or in privity with a party

Question 40

Who is allowed to assert issue preclusion?

Answer 40

1. Someone who WAS a party to case 1
2. A nonparty if -
   - used defensively (against ∏ who was party in earlier case)
   - used offensively if it would be fair to allow nonparty to do so - Factors:
   a. ∆ had a full and fair opportunity to litigate case 1
   b. ∆ had an incentive to litigate strongly in case 1
   c. Nonparty ∏ could not have joined easily in case 1
   d. There are no inconsistent findings on this issue

Question 41

If attorney spends a ton of time and money creating a list of people who witnessed or had relevant information to the case, can opposing party request it?

Answer 41

Yes - identities of people with knowledge of any discoverable matters are discoverable - NOT considered work product

Question 42

When may a defendant implead a nonparty?

Answer 42

D may implead a nonparty if the nonparty is or may be liable to the D for any part of the judgment recovered by ∏

Question 43

Analysis for Erie doctrine -

Answer 43

Procedural issues = fed law
Substantive issues = state law

Analysis:
1) Whether there is a federal law on point - if so, this is “arguably procedural” and fed law applies
2) If not, courts determine whether issue is procedural or substantive based on: – outcome determinative, forum shopping, balance of interests
[unless it is one of the 4 issues that are “clearly substantive” - then state law applies]

Question 44

4 areas that are “clearly substantive” and state law should apply

Answer 44

• elements of a claim/defense
• statute of limitations
• Rules for tolling SoL
• Choice of law rules

Question 45

What is the time limit to make a motion for a new trial?

Answer 45

Within 28 days after judgment is entered

Question 46

When is a motion for summary judgment made?

Answer 46

Before trial begins

Question 47

When is a motion for judgment as a matter of law made?

Answer 47

Before submission of the case to the jury

Question 48

What is the time limit to move for a renewed motion for judgment as a matter of law?

Answer 48

Within 28 days after entry of judgment

Question 49

When are claims compulsory?

Answer 49

• counterclaim - asserted against opposing party AND

- arises from the same transaction or occurrence

Question 50

Does a cross-claim against a co-party have to be related or can it be unrelated?
If a party files a cross-claim against a party, can that party join any other claim with it?

Answer 50

Party may assert a cross-claim against a co-party ONLY IF the cross-claim arises from the same T/O as that of original action.

But once a cross-claim is properly asserted, then that party can join any other claim he has against the same party, doesn’t have to be related.
– Only the cross-claim must be related to the underlying claim.

Question 51

When can an amended claim relate back to the date the original complaint was filed?

Answer 51

Only if it arises from the same transaction or occurrence as the original claim

Question 52

In diversity action, can punitive damages be included to meet amt in controversy?

Answer 52

Yes!

Question 53

If a widget was purchased in State B, and the widget exploded and injured P while he was using it in State C, where is venue proper?

Answer 53

District of State B, and District of State C

– venue is proper where CoA occurred or where events leading to CoA occurred

Question 54

Doctrine of forum non conveniens

Answer 54

Court can decide to dismiss the action if a different forum would be more convenient for the case

Question 55

When is service of process at an individual’s home proper?

Answer 55

Service may be made on an individual by leaving a copy of the summons & complaint at individual’s dwelling or usual abode with someone of suitable age & discretion who resides there

• • does not have to be year-round permanent home - just a usual abode
• • can be left with a caretaker who resides there most of the year

*Does not apply to place of D’s employment

Question 56

Can a third party defendant assert a claim against the plaintiff?

Answer 56

A third party defendant may assert a claim against the ∏ IF the claim arises out of the same T/O as ∏’s original claim (can also be asserted as a claim in a separate action)

Question 57

When can D assert a claim against a third party?

Answer 57

D cannot assert a third party claim against another party unless they are seeking to obtain recovery for his own liability to the original ∏

• *Must be seeking indemnity or some kind of contribution
• • not if D is just denying liability and saying this third party did it

Question 58

In addition to the service of process methods in FRCP, how else can service of process be effected?

Answer 58

Service of process can be performed as provided by:
1) the rules of the state in which the federal court sits
OR
2) the rules of the state in which service was effected

Question 59

Do evidence rules (admissibility) apply to discovery?

Answer 59

Discovery may be had of any non-privileged matter that is relevant to any party’s claim or defense - as long as information can reasonably lead to admissible evidence, it is not required that info be admissible at trial

Question 60

Are the identities of witnesses subject to discovery?

Answer 60

Yes - Party must provide the names of individuals likely to have discoverable information that the disclosing party MAY use to support its claims or defenses
– but don’t need to provide summary of expected testimony

Question 61

When does work-product doctrine apply?

Answer 61

• • Work created in anticipation of litigation by attorney or someone working on behalf of attorney
• • Qualified immunity from discovery - not absolute - if requesting party can show a substantial need or undue hardship of getting info in another way, then attorney has to produce it in discovery, but otherwise he doesn’t have to produce it

If you could acquire the knowledge yourself, then the attorney can assert the work-product doctrine

Question 62

P served D a request for discovery of docs, D objected. P and D conferred but did not resolve, and then P filed motion to compel the D to produce the documents. What consequences for D?

Answer 62

Court must require D to pay reasonable expenses incurred by the P in making motion to compel
*no sanctions yet - unless D disregards motion to compel

Question 63

If P has already properly filed a written demand for jury trial with the court and served it on D, can P withdraw jury demand?

Answer 63

No - jury demand can only with withdrawn if ALL parties consent

Question 64

When must party object to the form of questions given to the jury?

Answer 64

Must object when they are first given to the jury - otherwise party waives this objection

Question 65

When is a D entitled to notice before a default judgment?

Answer 65

• If default is entered against a D, he loses the right to contest liability. However, amt of damages must still be determined
• If D has appeared in this case, D must get notice (at least 7 days) of the default judgment hearing for damages and is entitled to appear

*Clerk is only allowed to enter a default judgment if the amt of damages is specific & certain, and D has NOT appeared

Question 66

Can a party appeal a district court order granting or denying certification of a class action?

Answer 66

Yes - order granting/denying class certification is immediately appealable -- within 14 days of entry of the order
-- Cf. this is an exception to general rule that only final orders are appealable  judgment!)
Court of appeals has complete discretion whether or not to hear appeal

Question 67

Remittitur

Answer 67

When trial judge believes that jury damages award is so excessive that it shocks the conscience
– trial judge offers plaintiff a new trial or accepting a lower amount

Question 68

For venue purposes, where does a corporate “reside”?

Answer 68

A corporation is deemed to reside in each district of a state with which it has sufficient contacts to justify personal jurisdiction with respect to the action
– state of incorporation, PPB, & sufficient contacts

Question 69

For forum purposes, where does an individual “reside”?

Answer 69

Residency determined by domicile

Question 70

For forum purposes, where does an unincorporated association reside?

Answer 70

Ex. partnerships, LLPs
Residency is determined by the location of the association itself, NOT individual partners

Cf. citizenship (for diversity purposes) - partnership’s citizenship is the citizenship of all the individual partners

Question 71

When is an opposing party allowed to depose a party’s expert witness?

Answer 71

If the party expects to call the expert as an expert witness at trial, the opposing party may depose the expert if they properly notice a deposition and have a subpoena served on the exert.

If the party does NOT expect to call the expert at trial, then the opposing party may STILL depose the expert but ONLY IF they show exceptional circumstances under which it is impracticable to obtain facts or opinions by other means

Question 72

Permissive joinder

Answer 72

Permits joinder of additional co-plaintiffs or co-defendants if:

1) claim relates to the same T/O and
2) there is a question of fact or law in common
3) only plaintiff can make this choice

Question 73

When can default judgment be set aside?

Answer 73

Grounds for setting aside a default judgment:

1) evidence of mistake, surprise, or excusable neglect
2) if there’s newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial
3) Fraud, or misrepresentation committed by an adverse party
4) If judgment is void (not voidable)
5) if judgment has been released, satisfied, or discharged
6) for any other reason justifying relief from the operation of the judgment

Question 74

Can a plaintiff voluntarily dismiss a case?

Answer 74

Yes, if the D has not answered or filed a motion for summary judgment - ∏ may dismiss her case by filing a notice of dismissal, without prejudice
**∏ can only do this once - the second dismissal will operate as an adjudication on the merits –> so ∏ cannot file the claim a third time

Question 75

Case goes to trial, and jury found in favor of ∏ and awarded her $. Judgment entered. D files motion for new trial. Court hasn’t issued any new orders. Can ∏ file to enforce the judgment?

Answer 75

Yes - Judgments are enforceable during pendency of post-trial motions
Unless: court orders a stay of enforcement, for the sake of adverse party’s financial security