civ pro essay rules

Question 1

Personal Jurisdiction

Answer 1

The court must have proper jurisdiction over the parties to an action and it is proper where there is a sufficiently close relationship between the defendant and the forum state.

Question 2

Traditional Basis

Answer 2

A traditional basis for personal jurisdiction exists where a defendant consents, is domiciled in the forum state or is present when served with process in the forum state.

Question 3

Long arm statute

Answer 3

A long arm statute is a mechanism that gives a state power to reach beyond its borders and assert jurisdiction over a non-resident.

Question 4

Constitutional Limitations

Answer 4

Minimum Contacts
Relatedness of the claim to the contract
Fairness Factors

Question 5

Minimum Contacts

Answer 5

The exercise of personal jurisdiction must be constitutional. To be constitutional, the non-resident defendant must have sufficient contacts with the forum state such that maintenance of the action does not offend traditional notions of fair play and substantial justice.

Question 6

Purposeful availment / foreseeability

Answer 6

The defendant’s contacts with the forum state must be assessed to determine if the defendant purposefully availed himself of the benefits and protections of the forum state, such that it is reasonably foreseeable that his activities in the forum subject him to be haled in court there.

Question 7

Relatedness of the claim to the contact (Specific and General Jurisdiction)

Answer 7

Specific jurisdiction may be found when a cause of action arises out of, or closely relates to a defendant’s contact with the forum state.

General jurisdiction exists if the D has systematic and continuous activity in the forum state such that the D is “essentially” at home.

Question 8

Fairness Factors

Answer 8

In determining whether exercising PJ is fair, the court will look at the burden on the defendant of appearing, the forum state’s interest in adjudicating the matter and other factors.

Question 9

SMJ

Answer 9

Federal SMJ means the court has proper jurisdiction over the subject matter of an action. Federal courts have limited SMJ and may only hear cases involving federal questions or diversity of citizenship which requires complete diversity and where the claim exceeds 75k.

Question 10

Removal

Answer 10

A D may remove to federal court if a case is brought in state court, but could have properly been brought in federal court.

However, when the basis for SMJ is diversity and one of the Ds is a citizen of the forum state, the action is not
removable.

Moreover, all Ds must agree to removal and must remove no later than 30 days after service.

Question 11

Motion to remand

Answer 11

If at any time before final judgment it appears that the district court lacks SMJ, then the court may remand the case. However, if a party seeks to remand the case on any other basis, the party must make the motion within 30 days of filing.

Question 12

Venue

Answer 12

In federal court, venue relates to the proper geographic district in which a trial should occur. Venue is proper in the following judicial districts

• A judicial district in which any D resides if all Ds are residents of the same state in which the district is located
• A judicial district where a substantial part of the events giving rise to the claim occurred or a substantial part of the property that is the subject of the action is situated.
• If there is otherwise no district in which an action may otherwise be brought: then the “fall back” alternative is that venue is proper in any judicial district in which any defendant is subject to the courts personal jurisdiction with respect to such action.

Question 13

Discovery

Answer 13

Is generally permitted w/ regard to any non-privileged matter relevant to any party’s claim or defense in the action and proportional to the needs of the case.

Information within the scope of discovery need not be admissible to be discoverable. The test is whether the information sought is relevant to any party’s claim or defense.

Question 14

Timing of discovery

Answer 14

A party may not seek discovery until after a discovery conference, unless ordered by the court, stipulated by the parties or authorized by a specific rule.

Question 15

Interrogatory Limits

Answer 15

Any party may serve no more than 25 written interrogatories on any other party. The court however has the power to increase that limit.

Question 16

Request for Production of documents

Answer 16

A request to produce documents is a discovery tool that allows a party to request and inspect designated documents in another party’s possession, custody or control.

The party to whom the request is directed must respond in writing, within 30 days after being served or if the request was served prior to that conference, within 30 days after the parties first discovery conference.

Question 17

Motion to compel

Answer 17

If a party fails to respond to discovery that has been properly served, then the party seeking the information may move to compel such discovery.

A motion to compel must be served on all parties and accompanied by a certificate that the movant has in good faith conferred or attempted to confer with the opposing party in an effort to obtain the disclosure or secure the information or material without a court action.

Question 18

Mental and physical exam

Answer 18

A party may seek to have the other party submit to a physical or mental examination by a suitably licensed or certified examiner when the other party’s physical or mental condition is in controversy.

An order for a physical or mental exam may be made only upon motion, for good cause and the person to be examined must be given notice specifying the time, place, conditions and scope of the examination and the identity of the examiner.

Question 19

Expert Witnesses

Answer 19

Parties are required to disclose the identities of persons who may testify as expert witnesses and to produce an expert report for each such witness.

If the expert was retained or specifically employed by another party in anticipation of litigation or to prepare for trial, but is not expected to be called as a witness, then discovery is permitted only on a showing of exceptional circumstances which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

Question 20

Basis for objection

Answer 20

Whenever a party withholds information on the basis of privilege, the party must expressly state the claim of privilege and describe the materials or communications not produced in a manner that will enable other parties to assess the applicability of the privilege or protection.

Question 21

Work Product Privilege

Answer 21

A party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.

Disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation are absolutely protected.

For all other trial preparation materials, a court may order discovery if the party shows that it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain a substantial equivalent by other means.

Question 22

Res Judicata

Answer 22

prevents the re-assertion of the claimant’s cause of action if there was a valid final judgment on the merits that involved the same parties and same claims.

Res Judicata requires proof of the following elements

(1) There was a valid judgment on the merits of the came

The Court must have had both personal and SMJ and the defendant had property notice and an opportunity to be heard.

(2) The original and subsequent claims are identical
The claims must arise out of the same series of transactions or occurrences.

(3) The claimant and defendant must be the same in both the original and subsequent action

Question 23

Collateral Estoppel (Issue Preclusion)

Answer 23

he doctrine of collateral estoppel precludes the relitigation of a particular issue of fact or law that has already been necessarily determined in an earlier adjudication. Unlike res judicata, collateral estoppel does not require strict mutuality of the parties, it requires only that the party against whom the issue is to be precluded was a party to the original action.

To offensively use collateral estoppel, the following requirements must be met:
(i) the issue sought to be precluded must be the same as that involved in the prior action,
(ii) the issue must have been actually litigated in the prior action,
(iii) the issue must have been determined by a valid and binding final judgment, and
(iv) the determination of the issue must have been essential to the prior judgment.

Question 24

Joinder of claims

Answer 24

Allows a single plaintiff to join all claims against a single defendant so long as the court has SMJ over each claim.

Question 25

Well pleaded complaint

Answer 25

A claim for relief can be dismissed if it fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim.
(1) the court must identify and reject legal conclusions unsupported by factual allegations
(2) the court should assume the truth or veracity of well-pleaded factual allegations

(notice) The complain must contain a statement of the subject matter jurisdiction, a statement of the claim and a demand for relief.

Question 26

Erie Doctrine

Answer 26

Under the Erie doctrine, in a diversity case, federal courts generally must apply the law of the state in which the district is located to substantive issues and federal procedural law to procedural issues. If it is difficult to determine if an issue is substantive or procedural, then the court will first determine if there is a conflict between state law and federal law.

If a conflict exists, then the court will look to see if there is a federal statute or rule covering the issue. If there is a valid federal statute or rule on point, then the district court must apply federal law rather than state law so long as the federal law does no more than incidentally abridge, enlarge, or modify a substantive right.

If no federal statute or rule is on point, then the court will determine whether federal common law, rather than state law, should apply by looking at whether failure to apply state law will lead to different outcomes in state and federal court.

Question 27

Right to a Jury Trial

Answer 27

In federal court, the right to jury trial is governed by the Seventh Amendment. The Seventh Amendment preserves the right to a jury trial in federal court in all “suits of common law” where the amount in controversy exceeds $20.

The right to a jury trial generally extends to legal, but not equitable, issues. If the same case involves both legal and equitable issues, then the jury normally determines the legal claims first, and the court determines the equitable claims second.

Further, the demand for a jury trial must be in writing and it must be filed with the court within 14 days after service of the last pleading directed to the issue that is sought to be tried by jury.