Civ Pro

Question 1

“Arising under” jurisdiction, a.k.a. “Federal Question” jurisdiction is found in a ____

Answer 1

CAT:
C – The U.S. CONSTITUTION
A – ACTS of Congress, or
T – TREATIES

Question 2

SCRAM if you don’t have a justiciable claim:

Answer 2

SCRAM
S – STANDING
C – CASE or controversy
R – RIPENESS
A – ABSTENTION 
M – MOOTNESS

Question 3

In diversity jurisdiction or supplemental jurisdiction cases, federal courts adopt state procedural law and not Fed R. Civ Pro or Fed R. Evid except state law is applied by federal courts to _____

Answer 3

SIP3:
S – STATUTE of limitations
I – INCOMPETENCY of witnesses
P – PRIVILEGES
P – PRESUMPTIONS and inferences
P – PROCEDURAL jurisdiction over a defendant

Question 4

Look at ____ to see the exceptions for the mootness doctrine:

Answer 4

VCR
V – A VOLUNTARY change in position, but not permanently
C – CLASS action
R – Capable of REPETITION doctrine

Question 5

____ has the key to the door of the Federal Court house:

Answer 5

SAD-J 
S – SUPPLEMENTAL jurisdiction
A – ARISING under jurisdiction, a/k/a a federal question (CAT) 
D – DIVIERSITY jurisdiction
J – JUSTICIABILE claims

Question 6

The discretionary reasons a federal court would decline supplemental jurisdiction to hear a state claim related to the pending federal claim are _____

Answer 6

COP:
C – The state claim presents COMPLEX or novel issues;
O – The court dismissed the claim on which it had subject matter jurisdiction ON THE merits; or
P – Where state claims PREDOMINATE over the federal claim

Question 7

To remove a nonfederal claim from state to federal court based on diversity jurisdiction, defendant must be shown to be a _____

Answer 7

STUD2:
S – The claim exceeds SEVENTY-FIVE THOUSAND DOLLARS
T – The petition attachments are filed with the federal court within THIRTY DAYS
of receiving a document indicating the claim is removable,
U – Under the rule of UNANIMITY, all defendants must sign the removal petition,
D – No defendant can be DOMICILED in the removal state, and
D – There is complete DIVERSITY of citizen between plaintiffs and defendants

Question 8

To obtain valid procedural jurisdiction, the 14th Amendment Due Process Clause requires that the defendant must have ____

Answer 8

MOP:
M – Some MINIMUM contact with the forum state
O – An OPPORTUNITY to be heard in the suit
P – Been PROPERLY served with process

Question 9

For the court to find sufficient minimum contacts over a defendant, the defendant must _____

Answer 9

CHILI:
C – D CONSENTS to jurisdiction in the forum state;
H – The state where a corporation or individual is at HOME, e.g. its corporate
headquarters is in that state or where an individual is domiciled;
I – The state where a corporate defendant was INCORPORATED;
L – D is a non-domiciliary but the court has LONG-ARM jurisdiction; or
I – D is a non-domiciliary served IN-STATE

Question 10

A corporation is subject to general jurisdiction in a state that can say ____ to that corporation:

Answer 10

HI
H – The state where its corporate HEADQUARTERS (its “nerve center) is located; or
I – In its state of INCORPORATION

Question 11

Longarm jurisdiction, a/k/a “specific jurisdiction,” arises from a _____ in that state:

Answer 11

RIOT
R – The defendant owns, uses, or possesses REALTY in the state
I – The defendant’s tortious conduct occurred IN THAT STATE causing the plaintiff’s
personal injury, property damage, or economic injury
O – The defendant’s tortious conduct occurred OUTSIDE the state, causing injury in the
state where the plaintiff’s claim was commenced, but the defendant must have
“targeted” that state
T – The defendant TRANSACTED BUSINESS in that state

Question 12

There must also exist some other ____ conduct involving an interstate or international defective product causing injury within a state:

Answer 12

3-S
S – SOLICIATION of business in the state
S – SERVICES performed in the state
S – SALES consummated in the state, i.e., did the defendant “target” the state

Question 13

In a federal forum non conveniens motion, the issue is whether the case should be tried ____ or in another forum:

Answer 13

HERE
H – HARDSHIP on D and the courts
E – Location of EVIDENCE
R – RESIDENCE of parties 
E – Location of EVENT

Question 14

In a federal court, even if a defendant has no minimum contacts with the state a defendant may nevertheless consent to jurisdiction by _____

Answer 14

SAM:
S – STIPULATING to jurisdiction in open court, or in an earlier signed writing,
pleading, contract, or letter
A – Serving an ANSWER, but failing to include a MOP objection as an affirmative
defense, unless the defendant corrects the omission and amends the answer within 21
days “as of course”. Rule 12(h)(1)(B)(ii).
M – Making any MOTION TO DISMISS prior to service of the D’s answer and failing
to include the MOP jurisdictional objection and in that motion, otherwise that objection is waived

Question 15

Under the federal rules, a defendant must timely raise ___ in a motion to dismiss, if such a motion is made. If not, raise it in the answer, or ____ is waived:

Answer 15

VIP
V – Improper VENUE
I – INSUFFICIENT service or process
P – Lack of PERSONAL jurisdiction. Rule 12(h)(1)

Question 16

____ can serve a subpoena or a summons process: An _____ Rule
4(c)(2).

Answer 16

AN

Adult Nonparty

Question 17

_____ is proper service in federal courts under Fed Rule 4

Answer 17

SWAPS
S – Leaving process at the defendant’s dwelling place or usual place of abode with a
SAD person of “suitable” age and discretion who resides there,
W – Where a defendant agrees in writing to WAIVE formal service of process,
A – Delivering process to an AGENT authorized by law or by appointment to receive it,
or
P – Delivering it PERSONALLY to the defendant
S – Service according to the STATE LAW where the federal court sits or the state where
the service was made

Question 18

Service on a corporation must be made on a ____ person:

Answer 18

GO A.M.
G – GENERAL AGENT. Rule 4(h);
O – OFFICER (President, VP, etc.);
A. – AUTHORIZED AGENT TO RECEIVE PROCESS, (expressly, impliedly or by estoppel);
M. – MANAGING AGENT

Question 19

There are just three ways for a defendant to formally “appear” in a federal court an action ___:

Answer 19

MAN
M – By making any pre-answer MOTION, which extends the D’s time to answer
A – By serving an ANSWER to P’s complaint
N – By serving a NOTICE of appearance (“entry of appearance”)

Question 20

A federal court default judgment may be vacated under Rule 60(b) based on ____

Answer 20

AMEN:
AM – AFFIDAVIT OF MERIT of the D’s viable defense
EN – EXCUSABLE NEGLECT

Question 21

To get personal jurisdiction over a nondomicile dad for child support and alimony under the Uniform Interstate Support Act, call _____

Answer 21

DADA:
D – The forum state was the parties recent DOMICILE
A – The defendant ABANDONDED the plaintiff in the forum state
D – The claim for support arose from that forum’s prior support DECREE or it arose under the forum state’s law
A – The parties executed a Separation AGREEMENT in the forum state

Question 22

If the applicable SOL has expired, then the P should consider tolling and extending provisions – ____

Answer 22

CAD’S LEAP:
C – Time-barred, related COUNTER-CLAIM (Federal Rules also)
A – AMENDING a pleading to add a time-barred claim
D – DISABILITY of the P
S – SOLDIERS and Sailors Civil Relief Act
L – The parties LENGTHENED the SOL
E – EQUITABLE estoppel
A – Written ACKNOWLEDGEMENT of an old debt (Federal Rules also)
P – PART-PAYMENT of an old debt

Question 23

Parties united in interest frequently involve the vicarious liability of ____ parties:

Answer 23

POPE
P – PARTNERS who are jointly and severally liable for each other’s torts committed
in the scope of the partnership
O – OWNER and driver of a motor vehicle used with the owner’s permission, except
when the owner leases the motor vehicle to the driver, in which case vicarious liability is not imputed to the lessor. Vicarious liability is also imputed onto the joint owners of realty (TICs, JTs, and TEs).
P – PRINCIPAL and agent
E – EMPLOYER and employee, under the doctrine of respondeat superio

Question 24

Amending a federal pleading to add a time-barred related claim can be done with an ___

Answer 24

ANT:
A – It AROSE out of the same facts pleaded in the original complaint
N – The original pleading gave NOTICE of the new claim
T – The new claim was TIMELY when the original pleading was filed with the clerk of the federal court.

Question 25

There are 2 types of corrective motions – ____

Answer 25

2-S:
S – A motion for a more definite STATEMENT in the pleading
S – A motion to STRIKE irrelevant, prejudicial, or scandalous matter from a pleading
Rule 12(f) and (e)

Question 26

When thinking of summary judgment in a federal court, think of ____

Answer 26

LIPS:
L – The motion can be decided as a matter of LAW
I – There are no material ISSUES of fact to be litigated
P – The court can grant PARTIAL summary judgment
S – The court can SEARCH the record

Question 27

In a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, courts always cite _____

Answer 27

FAT DRIP:

The complaint’s FACTUAL ALLEGATIONS are accepted as TRUE, and the court will DRAW all REASONABLE INFERENCES in the PLAINTIFF’S favor

Question 28

_____ is based on 9 grounds, which usually can be asserted in a motion Rule 12(c) on the pleadings and/or in the D’s answer as Rule 8(c) affirmative defenses.

Answer 28

SPARE RIBS
S – STATUTE of limitations
P – PAYMENT
A – ARBITRATION and award 
R – RELEASE
E – Collateral ESTOPPEL
R – RES JUDICATA
I – INFANCY or incompetency of the D
B – P’s claim against D was discharged in BANKRUPTCY 
S – STATUTE of Frauds

Question 29

Most states have several types of provisional remedies – _____:

Answer 29

LIAR2S
L – LIS PENDENS (warns others of the plaintiff’s claim to the realty)
I – Preliminary INJUNCTION restrains the defendant prior to final judgement
A – ATTACHMENT (as security for payment of the money judgement)
R – RECEIVER (who protects the property involved in the lawsuit)
R – REPLEVIN (court order to seize the chattel involved in determining title or
possession of chattel)
S – SEQUESTRATION

Question 30

The notice of pendency is not a _____

Answer 30

SLOB
S – SHERIFF is not involved
L – No court review of the P’s LIKELIHOOD of success on the merits 
O – No court ORDER is required
B – No BOND has to be posted by the P

Question 31

A Rule 65 federal preliminary injunction or T.R.O. will not be granted unless the P demonstrates by clear and convincing evidence _____

Answer 31

PILE:
P – Would the injunction serve the PUBLIC’S INTEREST
L – LIKELIHOOD (a probability not certainty) of the P’s success
I – IRREPARABLE injury is occurring or will occur to the P unless the preliminary injunction is granted
E – EQUITIES, when balanced by the court, clearly tip in the P’s favor

Federal Rule 65(b) limits a T.R.O. not to exceed 14 days but for good cause it can be
extended another 14 days. To get it ex parte, show “immediate and irreparable injury”

Question 32

Before a federal court permits the use of any provisional remedy, it must ensure that due process is satisfied by a _____

Answer 32

COP:
C – Showing by CLEAR AND CONVINCING evidence that P is likely to succeed and
is entitled to the provisional remedy requested because of extraordinary
circumstances
O – OPPORTUNITY to be heard
P – An immediate POST-SEIZURE hearing must be held if LIAR was obtained ex parte
(and 5 or 10 days is considered “immediate”)

Question 33

An innocent ____ vicariously liable party can look for total indemnification from the tortious ____ party:

Answer 33

POPE
P – A PRINCIPAL against a tortious agent
O – An innocent concurrent OWNER out-of-possession against the other co-owner in
possession.
P – An innocent PARTNER against a partner committing a tort in furtherance of
partnership business
E – An innocent owner against a tortious EMPLOYEE

Question 34

In Federal Practice, use ____ devices for pre-trial discovery:

Answer 34

MR AID
M – MENTAL and Physical Exam
R – REQUESTS for Production
A – ADMISSIONS demand
I – Written INTERROGATORIES
D – DEPOSITIONS (a.k.a. EBTs – “examinations before trial”)

Question 35

An expert’s report must contain an _____

Answer 35

O2FFER.
O – Expert’s OPINION
O – OTHER cases in the last four years in which the expert has testified
F – FACTS or data used to form the expert’s opinion
F – The FEE paid to the expert
E – Any EXHIBITS to be used to support the expert’s opinion
R – Expert’s RESUME including any publications authored by the expert in the last 10
years

Question 36

Protective orders seek to prevent unreasonable ____ abuses of discovery procedures:

Answer 36

DEEP
D – DISADVANTAGE
E – EMBARASSMENT
E – EXPENSE outweighs its benefits (especially where there is economic disparity
between the parties)
P – PREJUDICE. Rule 26(c)

Question 37

A court order is required to ____ at a DEPOSITION

Answer 37

RAP3
R – REFUSAL to comply w/ EBT Demand
A – AFTER the court’s “bar date” closing pretrial further discovery in its “scheduling
order”. Rule 16(b)(3)(A). A party must show the court “good course,” i.e., that unusual or unanticipated circumstances occurred subsequent to the bar date and that prejudice would result if further discovery is not permitted
P – PRISONERS
P – A PREVISOUSLY deposed witness
P – PRIOR to commencing an action in order to preserve evidence or to assist in
bringing the action. Rule 30(a)(2)(A)(iii) & 26(d)

Question 38

To determine if the requested discovery is PROPORTIONAL to the needs of the case under Rule 26 (b)(1) (12/1/15), check with a _____

Answer 38

RA2BBI
R – The parties’ RESOURCES
A – A parties’ relative ACCESS to the relevant information
A – The AMOUNT in controversy
B – The BURDEN (expense) on a party
B – The BENEFIT to be derived from the requested discovery
I – Its IMPORTANCE in resolving the ISSUES of the claim.

Question 39

____ are discovery sanctions: (Rule 26(g))

Answer 39

A DRIPS
A –ATTORNEY’S FEES & punitive sanctions against non-disclosing party
D – DISMISSING the action or ordering a DEFAULT judgment
R – RESOLVING issues against party
I – An adverse INFERENCE jury charge
P – PRECLUDING that party from offering evidence on certain issues
S – STRIKING that party’s pleading or any part thereof

Question 40

Interlocutory collateral orders can be immediately appealed if they have earned a ____ degree

Answer 40

LL.M.
L – The court’s order is the LAST word on that issue
L – Appellate review after final judgment will be too LATE
M – The issue involved does not involve the MERITS of the case

Question 41

___– collateral estoppel is available in a federal court if issues are identical and the party against whom collateral estoppel is being asserted previously had a full and fair opportunity to litigate that issue:

Answer 41

“IF”
I – IDENTICAL ISSUES
F – FULL AND FAIR OPPORTUNITY TO LITIGATE ISSUE

Question 42

To certify a class action in federal court (Rule 23(a)) think _____ 9 U.S.S. §§ 1 to16

Answer 42

CAN’T
C – COMMON QUESTIONS of law or fact
A – ADEQUATE representation by the class rep.
N – Class size so NUMEROUS ordinary joinder is impracticable
T – Class rep’s claim is TYPICAL of all other claims