Civ Pro

Question 1

Personal Jurisdiction

Answer 1

Can this person be sued in this jurisdiction? Power of the Parties (and in particular, the Defendant)

Analysis:

1. Satisfy a state statute (e.g., state long-arm statute-most state statutes apply constitutional test) AND
2. Satisfy the Constitution (DPC)
   
   • Does defendant have such minimum contacts with the forum so that jurisdiction does not offend traditional notions of fair play and substantial justice: analyze (1) contact, (2) relatedness, (3) fairness.
   1. Contact: must result from purposeful availment and be foreseeable
   2. Relatedness:
      
      • ​​Specific - arises out of D’s contact with the forum state
      • General - where a plaintiff is “at home”
        
        • domicile (for corporations: where incorporated or principal place of business)
   3. Fairness: consider in specific personal jurisdiction cases (1) convenience; (2) state’s interest; and (3) plaintiff’s interest

Question 2

Subject Matter Jurisdiction (Federal Courts)

Answer 2

Court’s power over the case.

1. Diversity:
   
   • Between citizens of different states (or citizen of state and foreign country (alienage))
   • Amount in controversy exceeds $75,000
2. Federal Question:
   
   • Complaint must show a right or interest that “arises under” federal law.

Once a case is in federal court, also consider Supplemental Jurisdiction (used to get additional, non-federal claims in).

Question 3

Citizenship for Diversity Rules

Answer 3

• Complete Diversity Rule: No diversity jurisdiction if any P is from the same state as any D.
• Natural Persons are citizens where domiciled (1) presence in state and (2) intent to make a permanent home.
• Corporation: citizenship where (1) state where incorporated and (2) principal place of business (where managers control and direct corporate activities).
• Unincorporated Association: Citizen where any member (partner) is a citizen

Question 4

Amount in Controversy Rules

Answer 4

• Must exceed $75k (do not consider cost or interest on claim)
• Aggregation:
  
  • To meet the amount in controversy requirement for federal diversity jurisidiction you may aggregate the claims of one P vs. one D.
  • For joint tortfeasor situations use the total value of the claim.
• Equitable Relief Claims (Injunctions):
  
  • Plaintiff’s viewpoint: is P’s value decreased by more than $75,000 without injunction?
  • Defendant’s viewpoint: would it cost D more than $75,000 to comply with injunction?
  • If either test is met, amount in controversy is sufficient.

Question 5

Supplemental Jurisdiction

Answer 5

Used to get additional, non-federal claims into federal court along with the federal claims.

1. The Test:
   
   • ​​Common nucleus of operative fact; same T/O will meet this test.
2. The Limitation:
   
   • ​​But in a diversity case, the plaintiff cannot use supplemental jurisdiction to overcome a lack of diversity.
3. Discretionary Factors:
   
   • Court has discretion to here supplemental claim if: (1) federal claim dismissed early; or (2) the state law claim is complex; or (3) state law issues would predominate.

Question 6

Removal and Remand

Answer 6

Removal: A right of a Defendant sued in State Court to remove to the Federal Court that embraces the State Court.

Rules:

1. Must remove within 30 days of service of first doc that makes case removable.
2. All defendants must join in removal; it must be unanimous.
3. Case must meet Federal SMJ requirements.
   
   • Exceptions in Diversity Cases:
     
     1. No removal if any D is a citizen of the forum state.
     2. No removal more than one year after case was filed in state court.

How to remove: D files Notice of Removal in Federal Court, serves notice on parties, then files a copy of the Notice in State Court

Remand: Plaintiff can move to remand back to State Court if removal improper

• for technical matters (i.e., non-SMJ matters), must file within 30 days of Notice of Removal
  
  • Lack of Diversity counts as technical matter
• For lack of SMJ, can file for remand at any time

Question 7

The Erie Doctrine

Answer 7

Whether a federal court will apply federal or state substantive law.

Process:

1. Is there a federal law that directly conflicts with the state law? (Supremacy Clause)
   
   • If yes, apply federal law because of preemption.
2. Is the issue “substantive,” if so, apply state law
   
   • Easy cases that have been held to be substantive
     
     • Elements of a Claim or Defense,
     • Statute of Limitations,
     • Rules for Tolling Statutes of Limitations,
     • Conflict of Law Rules.
3. Otherwise, perform a balancing:
   
   • Is the state law outcome determanitive?
   • Balance the State v. Federal Interests
   • Avoid Forum Shopping.

Question 8

Venue

Answer 8

Which federal court?

Venue is proper where:

1. All defendants reside
   
   • Or, if all Ds are from same state, any district in the state where a D resides; OR
2. A substantial part of the claim arose

*Residence is domicile for a natural person and, for a business, any place where they are subject to personal jurisdiction.

Question 9

Transfer of Venue

AND

Forum Non Conveniens

Answer 9

A federal court may transfer venue to any district where the case could have been filed (i.e., to a proper venue that has personal jurisdiction over the defendant).

• If original venue was also proper the court has discretion to transfer based on convenience to the parties and witnesses and “in the interest of justice”
  
  • Consider public and private factors showing which court is the “center of gravity” of the action
    
    • Public: which law applies, what community should be burdened with jury service, local controversy should be kept in local court
    • Private: convenience, where are the witnesses?
• If original venue was improper, court may transfer in the interests of justice or dismiss

Forum Non Conveniens is like transfer except where transfer is not possible because, for example, the other court is in another judicial system, then the court will either dismiss or stay the case.

• Decision based on public and private factors above

Question 10

Service of Process

Answer 10

Must provide notice to D by delivering (1) a summons and (2) a copy of the complaint.

Time: w/in 90 days of filing complaint

Mechanics:

• Anyone older than 18 can serve process
• Personal Service: papers given directly to D anywhere
• Substituted Service: process left at D’s usual abode AND with someone of suitable age and discretion that resides there
• Service on D’s Agent if within the scope of agency
• State law: service by any method permitted by state law of state where federal court sits or where service is effected is valid (e.g., service by mail)
• Waiver by Mail: mail process and two copies of waiver form; if D mails back within 30 days, service waived, if not D must pay the costs of service.

Question 11

Complaint (Federal Courts)

Answer 11

Filing a complaint commences an action.

Requirements:

1. Statement of grounds for SMJ
2. Short and plain statement of the Claim
   
   • Notice pleading: must plead facts supporting a plausible claim; fraud, mistake, and special damages must be plead with more particularity
3. Demand for Relief

Question 12

Defendant’s Response to Complaint (Federal Courts)

Answer 12

Defendant can respond in 2 ways (withing 21 days of service of process; if you waived service you get 60 days):

1. by motion (rule 12) (not a pleading)
   
   • ​​Issues of Form: (1) motion for more definite statemet; (2) motion to strike
   • 12(b) Defenses: (1) lack of SMJ; (2) lack of PJ; (3) improper venue; (4) insufficient process; (5) insufficient service; (6) failure to state a claim; (7) failure to join an indespensible party
     
     • 2-5 are waivable, meaning that if they are not put in the first response, they are waived
     • 12(b) defenses could also be asserted in answer
2. by answer (a pleading)
   
   • w/in 21 days of service of process (or 14 days after a failed responsive motion)
   • Must respond to allegations: admit, deny, state lack of sufficient information
   • Must raise affirmative defenses.

Question 13

Counterclaim

Answer 13

A claim against an opposing party, it is part of D’s answer.

1. Compulsory: arises from same T/O.
2. Permissive: does not arise from same T/O.

*P must respond to D’s counterclaim w/in 21 days

* Assess counterclaim’s SMJ, if no SMJ check for Supplemental Jurisdiction.

Question 14

Crossclaim

Answer 14

This is a claim against a co-party, it must arise from the same T/O as the underlying action.

• Never compulsory.

*Test counterclaims for SMJ, and if not, then Supplemental Jurisdiction.

Question 15

Amending Pleadings and Relating Back

Answer 15

Right to Amend:

1. As a matter of course.
   
   • Plaintiff: once w/in 21 days of defendants response (answer or motion)
   • Defendant: once w/in 21 days of serving his answer
2. With permission from court“if justice requires”
   
   • Conisder delay, prejudice, and futility of amendment

Relation back of Amendments (consider for tolling statute of limitations):

• Amended pleadings relate back if they concern the same T/O as the original pleading.
• But, to add a new D, amendment relates back only if:
  
  • Same T/O; new party knew about the case w/in 90 days of its filing; and new party knew that it should have been originally named.

Question 16

Rule 11

Answer 16

Lawyer must sign all pleadings, certifying:

• paper is not for an improper purpose
• legal contentions are supported by law
• factual contentions are supported by evidence

Rule 11 allows for sanctions for violations to deter improper conduct.

Safe Harbor: other party can serve you with a motion, and then you have 21 days to remedy. If you don’t, the motion can be filed with the court. But, court can sanction sua sponte, without he safe harbor.

Question 17

Initial Disclosures

Answer 17

Within 14 days of Rule 26(f) conference, parties must submit:

1. Identities of persons with discoverable info that supports your case
2. Documents and things that support your case
3. Computation of monetary relief
4. Insurance Coverage

Question 18

Disclosure of Expert Witnessses

Answer 18

Required Disclosure

1. Must disclose Identity and
2. Written Report
   
   1. Opinion of EW,
   2. Bases for Opinion,
   3. Facts relied on,
   4. EW qualifications, and
   5. Payment to EW.

Question 19

Discovery Tools

Answer 19

Used after 26(f) conference

• Depositions: questions and sworn answers; can depose non-party w/ subpoeana; limit 10; limit 1 day of 7 hours
• Interrogatories: written questions and answers underoath; only to a party; limit 25
• Requests to Produce: can go to non-party if accompanied by subpoena
• Physical/Mental Exam: Only available through court order; must show person’s health is in actual controversy and good cause; only to party or somone in party’s custody or legal control
• Request for Admission: only to another party

*There is a duty to supplement

Question 20

Scope of Discovery

Answer 20

Anything relevant to a claim or defense, including material that is reasonably calculabe to lead to discovery of admissible evidence.

• Privileged material is not discoverable (must make a privilege log)
• Work Product (material prepared in anticipation of litigation) is generally not discoverable, unless (1) substantial need, and (2) otherwise unavailable

Question 21

Necessary and Indispensable Parties

Answer 21

Who is necessary? Anyone who:

• without them, complete relief could not be afforded
• whose interest would be harmed if not joined

But CAN THEY be joined?

• If the court has PJ and they would not destroy diversity jurisdiction
• If they can’t be joined either proceed without them or dismiss

Question 22

Impleader

Answer 22

Defendant wants to bring in someone new (a third-party defendant), probably for indemnity or contribution.

• Right to implead within 14 days of serving answers; if not, you need court’s permission
• Then, implead party and plaintiff can file counter-claims against each other; and the implead party can cross-claim against D

*Must address SMJ of their claims, if not consider supplemental jurisdiction

Question 23

Intervention

Answer 23

An absentee wanting to join the suit.

• By right: if their interest would be harmed if not joined.
• Permissive: if the absentee’s claim or defense involves at least one common question

*Must address SMJ of their claims, if not consider supplemental jurisdiction

Question 24

Interpleader (Federal Courts)

Answer 24

One holding property (the “stakeholder”) forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency

• Rule 22 Interpleader: complete diversity between stakeholder and all claimants and over $75,000 in issue OR a federal question
• Statutory: Only one claimant must be diverse from one other and $500 in issue

Question 25

Class Action

Answer 25

Representative sues on behalf of class members

Requirements:

1. Numerosity - too many for practicable joinder
2. Commonality - common issue to all
3. Typicality - rep’s claim is typical of class
4. Representative is Adequate - rep will fairly rep the class

Then, must fit the case into one of three types:

1. Prejudice: necessary to avoid harm (RARE)
2. Injunction/Declaratory Judgment
3. Damages: (1) common questions predominate and (2) class action is best method to handle
   
   • Here, the class must be notified

Court must decide early to “certify” the class and appoint class counsel

SMJ - for diversity, consider citizenship of rep and rep’s claim for damages

Class Action Fairness Act - Grants SMJ if any member diverse and aggregated claims exceed $5M

Question 26

Preliminary Injuctive Relief

Answer 26

1. Temporary Restraining Order (TRO) - ex parte
   
   • File paper under oath showing he will suffer immediate irreparable harm if must wait for other side to be heard
   • Post a bond
   • Other side can move to dissolve or modify w/in 2 days of notice of TRO
2. Preliminary Injuction
   
   1. Irreparable Harm
   2. Likely to win on the merits
   3. Balance of hardships
   4. Injunction in Public Interest
   • Must post a bond

Question 27

Motion to Dismiss for Failure to State a Claim: 12(b)(6)

Answer 27

The court looks at the facts alleged in the complaint and asks, “if these are true, do they state a plausible claim”

If yes, motion fails

If no, motion succeeds

Question 28

Summary Judgment

Answer 28

Moving party must show (1) that there is no genuine dispute of material fact and (2) that she is entitled to judgment as a matter of law.

• Court will look at the evidence, in the light most favorable to the non-moving party
• Pleadings are not evidence, unless verified; affidavits and depositions are, because they are under oath
• Hearsay evidence will be excluded; court can only rely on first hand knowledge

Question 29

Jury Trial

Answer 29

FED: 7th Amendment provides right to jury trial in “civil actions at law,” but not suits at equity.

If a case involves both, a jury will decide the legal issues, but not the equitable issues. (legal issues first)

Jury trial must be demanded within 14 days after service of last pleading raising a jury triable issue.

Min jurors 6.

Question 30

JMOL and RJMOL

Answer 30

• JMOL - motion can be brought after other side has been heard at trial (so defendant can usually bring it twice); standard: reasonable people could not disagree about the result
• RJMOL - brought within 28 days of entry of judgment, but only if you already brought a JMOL motion

Question 31

Remittitur and Additur

Answer 31

To avoid a new trial, the court might suggest remittitur or additur

Remittitur:

• court finds that damages award shocks the conscience (to high) and give P a choice: take a lessor amount or go through new trial (OK in state and FED court)

Additur:

• court finds that damages award shocks the conscience (to low) and give D a choice: pay a greater amount or go through new trial (OK in state, unconstitutional in Fed Ct.)

Question 32

Final Judgment Rule

Answer 32

Generally there is a right to appeal only from final judgments (ultimate decision by trial court on the merits of the cases; nothing left to do).

• FED: Notice of appeal must be filed within 30 days of final judgment in the trial court.

Question 33

Claim Preclusion

Answer 33

Does a judgment already entered in Case 1 preclude litigation of any matters in another case (Case 2)?

Claim Preclusion (Res Judicata):

1. Valid, Final Judgment on the Merits
   
   • All decisions are on the merits except those dismissed for lack of jurisdiction, venue, indispensible parties, or maybe SoL
2. ​Same Plaintiff and Defendant
3. Same Cause of Action/Claim
   
   • Cause of Action = arising out of same T/O
4. Cause of Action/Claim was already litigated or could have been litigated in the prior action

Question 34

Issue Preclusion (Collateral Estoppel)

Answer 34

Prevents a party from relitigating an issue that was deciding in a prior preceding, if:

1. A final judgment;
2. Issue litigated and actually determined in earlier action;
3. Issue was essential to the judgment in the earlier action;
4. Issue is identical in this case;
5. The party against whom collateral estoppel is being asserted must have been a party in the prior preceding
6. Non-mutuality (being used by a party that was not a party in the earlier case): the court must consider the fairness to the party it is being used against.
   
   1. Traditional Issue Preclusion required mutuality: the same parties