Civ Pro Final

Question 1

Concurrent Jurisdiction:

Answer 1

Concurrent Jurisdiction: The case can be filed in both state or federal court –> If a federal court has subject matter jurisdiction, then the state does too. But not vice versa.

Question 2

Subject Matter Jurisdiction:

Answer 2

Subject Matter Jurisdiction:
The power that the court has over a type of case. This can be though…
(1) Federal Question
(2) Diversity

Question 3

SMJ (1) Federal Question

Answer 3

General federal question grants federal district courts original jurisdiction over cases “arising under federal law.
*Must be the plaintiffs cause of action, and cannot be the defendants argument / claim

Question 4

SMJ (2) Diversity

Answer 4

Diversity is when District Courts shall have original jurisdiction of all civil actions where matter in controversy exceeds sum or value of $75,000 and is between
a) citizens from different states;
b) citizen of a state and foreigner;
c) citizens of a different states and foreigners are additional parties; OR
d) a foreign state as plaintiff and citizen of a state.

• Corporations citizenship for SMJ = Inc. or Nerve Center Test (cxo’s)

in SMJ. A person is a “citizen” of the state in which he or she is domiciled. Domicile is established by (1) physical presence; (2) with intent to remain there.”

Complete Diversity Requirement: No plaintiff can be citizen of the same state as any defendant. *NONE of the defendants can be from the same state as the P

Question 5

Supplemental Jurisdiction + when it can be declined

Answer 5

Supplemental Jurisdiction:
When federal court has SMJ over a claim, supplemental jurisdiction allows the court to hear additional claims that are sufficiently related to the original claim, even if the original claim does not independently satisfy for federal jurisdiction.

Courts can decline jurisdcition when…
1. There is novel or complex state law
2. State claims dominate the case
3. (no SMJ)
5. Other compelling reasons

Question 6

Pleadings Order

Answer 6

In a nutshell:
Plaintiff files complaint [Rule 8]
Defendant files
o Answer [Rule 8]
o Motion to dismiss [Rule 12]
o Motion for sanctions [Rule 11]
Plaintiff may
o Respond to motion
o Amend complaint [Rule 15]

Question 7

General Rules of Pleadings

Answer 7

Rule 8(a) General Rules of Pleadings
(1) a short and plain statement of the grounds for the court’s jurisdiction,
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought

*NO LEGAL ARGUMENTS

*Iqbal: Labels and conclusions/ formulaic reiterations of elements are not enough

Question 8

Answer

Answer 8

Rule 8(b) Answer
(b) Admissions And Denials.
-> state in short and plain terms, admit or deny or lack of kowledge, for all claims brought by opposign party

Question 9

Defences

Answer 9

Rule 8(c): Affirmative Defenses
Certain defenses must be “affirmatively” stated, including:

• assumption of risk;
• contributory negligence;
• duress;
• fraud;
• illegality;
• statute of frauds;
• statute of limitations; and
• waiver.
• Exhaustion* (administrative)

If not brought then waived

Question 10

Defenses and Objections (Motions)

Answer 10

Rule 12b Defenses and Objections
A party may assert the following defenses by motion…
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(6) failure to state a claim upon which relief can be granted; and
o No evidence needed (attack legal claim
o Assume all of the factual allegations of the complaint are true
o Dismissal is granted if the complaint is not plausible on face value
* Plausibility –> pleads factual content that allows court to draw reasonable inference that defendant is liable. (include facts)

Question 11

Amendment

Answer 11

Rule 15(a) Amendment
(1) Amend ONCE 21 days after the complaint is filed OR 21 days after getting answer
(2) Amending more then once or after the 21 days is permitted with either consent by adversary or by courts leave (courts will grant if justice permits)

Question 12

Relation back Doctrine

Answer 12

Rule 15(c)(1) Relation back Doctrine
Statue of limitations bars no claims to be brought in amendments unless it relates back to the OG claim

Relates back –> asserts a claim or defense that rose out of the conduct, transaction and occurrence from the original claim

*Look at facts not law (neg and K can both be brought)

Question 13

Pleading Sanction

Answer 13

Rule (11) Sanctions
(a) Every pleading/written motion must be signed
(b) This certifies that (1) nothing is done for a improper purpose. (2) the argument is not frivolous and (3) You think you will be able to get evidentiary support in discovery.
(c) If you do anything above then you can get sanctioned
**Sanction must be brought as a motion alone
**Give pty 21 days to fix before bringing to court

+Courts can bring sanction on their own initiative if they see fit

Question 14

Motion to Strike

Answer 14

Rule 12(f)- Motion to Strike
removes “redundant, immaterial, impertinent, or scandalous matter”

*This can be done after complaint and must be before answer

Question 15

Process of Discovery

Answer 15

Process of Discovery…
I. Conference of the Parties – Rule 26(f)
o meet, make plan, and submit

II. Initial Disclosures – Rule 26(a)
o disclose relevant ppl & things

III. Scheduling – Rule 16(b)
o judge will set

IV. Discovery Tools – Rules 26 -35

V. Pre-trial Disclosures – Rule 26(a)(3)(A)

VI. Final Pretrial Conference & Order – Rule 16(e)

Question 16

Discovery Tools

Answer 16

Rule 34 Production
o Tangible stuff
o Non Parties subpoena R.45

Rule 33 Interrogatories
o 25 written questions
o RELEVANT ONLY
o Parties ONLY

Rule 36 Requests for Admission
o unlim questions - admit/deny
o No Revenecy issue
o Parties ONLY

Rule 30 Depositions
o 10, 1 day/7 hours
o Non Parties subpoena R.45

Rule 35 Physical/Mental Examinations:
o when it is in controversy
o Parties ONLY

Question 17

Scope of Discovery

Answer 17

Rule 26(b)(1)
Issue with discovery comes up when something is not (1) Relevant or (2) Proportional

Relevant–> Must prove or disprove something that matters- reading the law in question
Proportional–> What factors aer used…. I.A.P.P.I.B
1. Importance of the issue at stake
2. Amount in controversy
3. Parties access to relevant information
4. Parties resources
5. Importance of discovery in resolving the issue
6. Burden/expense outweigh discovery benefit?

Rule 26(b)(2)(C)
limit frequency or extent of discovery if it is
(i) unreasonably cumulative or duplicative, or can be obtained in less expensive/burdensome way
(ii) they had ample opportunity to obtain themselves
(iii) outside of scope permitted by Rule 26(b)(1).

Rule 26(c)- Protective Order
an order to protect party or person from annoyance, embarrassment, oppression, or undue burden or expense.

Question 18

Witnesses (types)

Answer 18

Experts
(1) Fact Witness –> testifies about their relationship to an incident
(2) Expert Witness–> testifies about their professional knowledge and opinions
* Need court ruling that this person is an expert

Question 19

About Expert Witnesses

Answer 19

Rule 26(a)(2) Disclosure of Expert Testimony
In general, a party must disclose to the other party the identities of any witness it may use at trial
Step 1: Expert produces a Rule: 26(a)(2)(B) written report
Step 2: Opposing counsel may depose the expert –> Rule 26(b)(4)(A)

Rule 26(b)(D)(4)- Party cannot usually seek information from adversary’s expert unless under exceptions circumstances (think banana boat)

Question 20

Discovery Sanctions

Answer 20

Rule 26(g)(1)
Every discovery request, response, or objection must be signed by attorney- certifying that it is: complete and correct, no frivolous argument, not interposed for any improper purpose, neither unreasonable nor unduly burdensome –> If violated sanctions can be imposed

**Do not use Rule 11 for discovery sanctions (only for pleadings)

Question 21

Types of Discovery Sanctions

Answer 21

Rule 37(a)(1) an order to compel production

Rule 37 (a)(3) Fail to do something in 26(a) then they can move to compel

Rule 37 (b)(2) Possible other Sanctions;
o Striking pleadings
o Dismiss the action or proceeding in whole
o Rendering default judgment
o Treating as contempt of court the failure to obey any order except order to submit physical/mental examination. (jail)

Question 22

When is Default Judgment OK under Rule 37?

Answer 22

Courts review/weigh the following factors:
(1) Willfulness or bad faith
o Shown by repeated defiance of court orders

(2) History of noncompliance
o Shown by deficient responses, lack of diligence, pending action and failure to respond to court orders

(3) Effectiveness of lesser sanctions
o can include: “order compelling discovery, holding a party in contempt, and imposing a fine.” partial compliance is not
sufficient

(4) Prior warnings of sanctions to noncompliant party
o Written warnings

(5) Client’s complicity
o Did the client responded in interrogatories, did they sign them, did they provide all documents and record *not always in consideration.

(6) Prejudice to moving party
o Delay, Duration of efforts, hindering ability to litigation.

Question 23

For Failure to persevere Electronically stored information….

Answer 23

Rule 37 (e) Failure to persevere Electronically stored information
Parties are obligated to preserve evidence relevant to pending or reasonably foreseeable.

Spoliation: destruction or significant alteration of evidence, or failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. Judge has discretion in sanctioning for spoliation. Elements to establish….
1. duty to preserve;
2. culpable state of mind; and
3. was relevant to party’s claim or defense.

Litigation hold:
1. Identify all potentially relevant info and place it on hold
2. Identify client’s documentation retention policy
3. Speak with client’s IT personally about backup policy
4. Speak with key players in litigation
5. remind client periodically to preserve

Question 24

Default

Answer 24

Rule 55- Default Judgment
(b)(1) when it is a straight forward $$ amount
(b)(2) if not obvious the court decides
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
(c) setting aside a default got good cause (or under Rule 60(b))

Rule 41(a)(1)(A) Allows plaintiff to voluntary dismiss case at any time before defendant answers or move for summary judgment.

Rule 41(b) Case may be involuntarily dismissed (defendant can move) if the plaintiff fails to prosecute (e.g. ignoring court scheduling orders,…etc).

Question 25

Relief from a Judgment or Orde

Answer 25

Rule 60. Relief from a Judgment or Order
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);
(3) fraud, . .. misrepresentation, or misconduct by an opposing party;….Or
(6) any other reason that justifies relief.

*Often post judgment motion but can also be an attack an order

Question 26

Summary Judgement and burdens.

Answer 26

Rule 56(a) Summary Judgement
A party may move for summary judgment, identifying each claim or defense – or the part of each claim or defense – on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
* If you move for all, the judge can still grant SJ in part.
*Moving in partmeans to get some claims dismissed but not all claims.

Burdens:
Movant  no genuine dispute as to any material fact
Nonmovant there is a genuine dispute as to any material fact
Material fact  a fact is material if it might affect the outcome of the lawsuit under the governing rule.