Civ Pro

Question 1

Erie

Answer 1

1. Determine the source of the federal law that conflicts with state law
2. If federal law from a fed statute or FRCP, apply fed law
3. Fed ct will have to apply substantive state law if the case was removed to fed ct from state ct

Question 2

Federal Question Jurisdiction

Answer 2

Available when A alleges a claim arising under fed law

Question 3

Supplemental Jurisdiction

Answer 3

Fed court has discretion to hear related claim that arises from common nucleus of operative facts

Question 4

Diversity of Citizenship

Answer 4

(1) Complete diversity btwn all Ps and all Ds and

2) Amnt in controversy must exceed $75k (cannot be $75k, must exceed

Question 5

Personal Jurisdiction

Answer 5

• Federal ct can exercise PJ over D who is domiciled there

- PJ only applies to Defendants! Don’t need to show PJ over P

Question 6

Objections to PJ

Answer 6

May be asserted by pre-answer mtn or answer, provided objection asserted in first response. Otherwise, objection waived.

Question 7

Venue

Answer 7

Permitted

(1) in any district where a D resides if all Ds reside in same state or
(2) in state where cause of action occurred (contacts do not matter for venue)

Question 8

Forum non Conviens

Answer 8

Court has discretionary power to dismiss case where another court is much better suited to hear the case.

Question 9

Service of Process

Answer 9

• May be made on an individual by leaving copy of the summons and complaint at the individual’s dwelling or usual abode w/ someone of suitable age and discretion who abides there.
• Process may be made as provided by rules of state in which fed court sits or state where service effected

Question 10

Third Party Counter-Claim

Answer 10

Third Party Defendant MAY assert a claim against P if the claim arises out of the same T/O as the P’s original claim

Question 11

Third Party Claim/Impleader

Answer 11

A D cannot assert a third party claim against another party unless they are seeking to obtain recovery for the TPD’s labiality to P (indemnity or contribution):

• Only allowed when D is asserting third party liability (wanting reimbursement)
• Not allowed when D is saying he isn’t negligent at all and that it’s third party who’s liable

Question 12

12(b) Motions

Answer 12

Must be made in first response or answer or the objection waived:

• Lack of PJ
• Insufficient Process
• Insufficient Services of Process
• Improper Venue

Question 13

Scope of Discovery

Answer 13

May be had of any non-privileged matter relevant to any party’s claim or defense. Does not have to be admissible at trial if it is relevant.

Question 14

Required Disclosures

Answer 14

Party must provide names of individuals likely to have discoverable information that disclosing party may use to support its claims or defenses.

Question 15

Motion to Compel Discovery

Answer 15

If a party ignores or disregards mtn to compel, may be sanctions. If party complies, only have to pay the reasonable expenses of other party in making the mtn to compel.

Question 16

Work Product

Answer 16

QUALIFIED immunity from Discovery unless opposing party can show substantial need or undue hardship.

Any time a party retains an expert witness, conversations btwn retaining atty and retained expert are confidential and protected by work product - they aren’t privileged, though

Question 17

Jury Trial Demand

Answer 17

• Once you make demand for jury trial, both parties must consent to withdrawal.
• Either party can make demand for jury trial

Question 18

Special Verdict

Answer 18

• Jury asked to make a finding on all material conclusions of fact - get series of questions regarding each ultimate fact. Judge applies the law to those facts to make legal conclusion.
• A party waives objections to form of the questions if they don’t object when they are first given to the jury.

Question 19

Motion for Summary Judgment

Answer 19

• Granted when no genuine dispute of material fact.
• Appropriate at any time until 30 days after close of discovery.
• Judge may not weigh credibility of witnesses.

Question 20

Class Certification

Answer 20

When dist court issues order granting or denying class certification, can be appealed w/in 14 days (so it’s immediately appealable)

Question 21

Renewed Judgment as a Matter of Law

Answer 21

(1) Arises when party against whom judgment entered claims that judgment based on verdict that reasonable people could not have reached and
(2) Moving party made a motion for judgment as a matter of law at close of all the evidence

Question 22

Remittur

Answer 22

If judge believes jury award was too high, judge can order new trial or may offer P remittitur (offer to accept less. P gets to choose to accept the lower amnt or get a new trial)

Question 23

Claim Preclusion

Answer 23

Once a final judgment on the merits has been rendered, P is barred by claim preclusion from asserting the same claim in a later suit:

(1) Final judgment on merits
(2) Same P against same D
(3) Same cause of action

Question 24

Issue Preclusion

Answer 24

In a previous lawsuit btwn a P and D, any judgments that occur bind them in subsequent actions on different causes of action on issues that were actually litigated and essential to judgment at hand (generally not available if there’s a default judgment, need to litigate the issue)

Question 25

Voluntary Dismissal

Answer 25

A P may dismiss voluntarily w/o court order only if:

• Dismissal is before opposing party has filed an answer or mtn for summary judgment or
• All parties have filed and signed a stipulation of dismissal

Question 26

Joining as Co-Plaintiffs

Answer 26

Two plaintiffs MAY join claims if:

• Same T/O and
• Some common question of law or fact

Question 27

Ex Parte TRO

Answer 27

You have to give D notice of hearing seeking TRO or show why D should not get notice (why it shouldn’t be required in this situation)

Question 28

Relation Back

Answer 28

In order for an amended complaint to relate back to the original, the filing of the action must be before the statute of limitations has ended. Service of process can come after this, even if it is after the statute of limitations has ended.