Civ Pro Essay

Question 1

23(a) Class Action Prerequisites

Answer 1

CANT

Commonality, Adequacy, Numerosity, Typicality

Question 2

What are the constitutional limitations on PJ?

Answer 2

DPC requires minimum contacts between the defendant and the forum state such that it is consistent with traditional notions of fair play and substantial justice to sue the defendant here (relatedness, convenience, state’s interest)

Question 3

What does a court look to for PJ minimum contacts?

Answer 3

purposeful availment of the the D to the protection of the forum state’s law and foreseeability

Question 4

Ways to have general in personam PJ

Answer 4

1. Physical presence
2. Domicile
3. Consent

Question 5

General in personam PJ and corporations

Answer 5

Must have systematic and continuous contacts that it is essentially be “at home” in the state (so domicile)

Question 6

Specific in personam PJ

Answer 6

Show minimum contacts, action arising from in-state contacts, and look to long-arm statute

Question 7

What needs to be present for a preliminary injunction?

Answer 7

BLIP

1) Balancing of harm b/w parties;
2) Likelihood of success on the merits;
3) Irreparable Harm;
4) best interest of the Public

Need hearing and opportunity to be heard

Question 8

What are the elements of issue preclusion?

Answer 8

SAFE
Same issue, 
Actually litigated, 
Final Judgment, 
Essential to prior judgment

Question 9

What are the elements of claim preclusion?

Answer 9

PAM
sufficiently identical Parties (same P same D);
sufficiently identical causes of Action;
valid, final judgment on the Merits

Question 10

What are the requirements for a TRO?

Answer 10

A TRO can be issued without notice to the adverse party if the moving party can show

(1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and
(2) the efforts made at giving notice and the reason why notice should not be required.

party seeking TRO must post a bond to cover the costs in the event the TRO is issued wrongfully

Question 11

Intervention as a matter of right

Answer 11

SAD

(1) the nonparty has an interest in the Subject matter of the action;
(2) the nonparty’s interest is not Adequately represented by existing parties; and
(3) the Disposition of the action may impair the nonparty’s interests

Question 12

Why have a TRO?

Answer 12

Keeps status quo until hearing on the merits - cannot last more than 14 days w/o good cause

Question 13

What is the omnibus motion rule?

Answer 13

Under the “omnibus motion” rule, when a party makes a pre-answer motion raising one of defense but omitting others, the party may not make another pre-answer motion raising one of the omitted defenses that was available to the party when the earlier motion was filed

Question 14

When is process adequately served against a corporation?

Answer 14

service on a U.S. corporation may be effected either by delivering the summons and complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process, or by following state law in the state where the district court is located or where service is made.

O(officer) M(managing agent) A(appointed agent) G(general agent) A(agent authorized by law) S (state law where process is served or court is located)

Question 15

Proper venue:

Answer 15

1. judicial district in which any defendant resides (if al live in same state), or
2. a judicial district in which a substantial part of the events or omissions on which the claim is based occurred.

If those two are not present, then venue is proper where any defendant has personal jurisdiction.

Question 16

What are the court ordered remedies for when a party intentionally destroys information?

Answer 16

DUI

(1) may presume the lost information was unfavorable to the party,
(2) instruct the jury that it may or must presume the information was unfavorable, or
(3) dismiss the action or enter a default judgment.

Question 17

What are court remedies for curing prejudice by lost information?

Answer 17

upon finding prejudice to another party, order measures no greater than necessary to cure the prejudice

Question 18

When is permissive joinder of parties/claims allowed?

Answer 18

Two plaintiffs may join their claims against one defendant as long as the claims stem from the same transaction or occurrence and share a common question of law and fact.

Question 19

When is joinder required?

Answer 19

Absent parties may be forced to join a case if they are deemed necessary parties

Question 20

When is a party necessary?

Answer 20

1. Without absentee, court cannot grant complete relief,
   —- Consider whether multiple suits might follow if
   absentee is not made a party
2. Absentee has a legal interest that may be impaired or impeded, or
3. Absentee has an interest that creates a risk of multiple or inconsistent rulings and obligations

Question 21

When is a party indispensable?

Answer 21

if a necessary party cannot be joined, ask whether the party is so indispensable that the case should be dismissed; court looks at these factors:

1. Is an alternative forum available?
2. What is the likelihood of prejudice to the parties or others if the case goes forward?
3. Can the court shape potential relief to avoid prejudice?
4. Would P have an adequate remedy if the case is dismissed?

Question 22

offensive collateral estoppal

Answer 22

in limited instances, a party may use issue preclusion offensively to estopp a party from denying an issue that it had a full and fair opportunity to litigate in the prior proceeding

Question 23

nonmutual collateral estoppal

Answer 23

Nonmutual collateral estoppel applies to the use of offensive collateral estoppel by a party who was not part of the initial litigation. In determining whether nonmutual collateral estoppel is available, the federal court will look to the law of the court in which the original proceeding was litigated.

Question 24

Requirements for summary judgments

Answer 24

Burden for moving party — must show:
1. There is no genuine dispute of material fact; and
2. Moving party is entitled to judgment as a matter of law
(Motion is based on pleadings and evidence submitted)

Must look at all evidence and resolve all doubts in light most favorable to non-moving party

Question 25

Amendment of pleadings

Answer 25

Once as of course (w/in 21 days of service).

Without right, need:

1. Written consent of the adverse party, or
2. Leave of court (i.e., court’s permission) — sought by motion
   - Leave will be granted freely when justice requires (lenient standard); court looks to:
   a. Delay that will be caused;
   b. Potential prejudice to parties; and
   c. Futility of amendment

Question 26

Amending a motion to dismiss

Answer 26

courts have generally allowed a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion

Question 27

Service of process

Answer 27

State rules in which the court sits or by delivering a summons and complaint to an individual personally or by “leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.”

Question 28

What standard does an appeals court give to challenged jury instructions?

Answer 28

• No objection: Must be plain error that effects substantial rights
• Objection: de novo review for an error of law