Civ Pro outline

Question 1

Federal Question Jurisdiction

Answer 1

District courts have original JX of all civil actions arising under the constitution, laws, or treaties of the U.S.

Fed and State courts have concurrent JX of FQ claims, except when congress provides exclusive JX.

A state law claim can contain a federal question if it is (1) necesarily raised, (2) actually disputed, (3) substantial, (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress

The federal issue must be presented in plaintiff’s well pleaded complaint and not in a federal defense or counter claim.

Question 2

Diversity JX

Answer 2

Controversy must exceed $75K in plead of the complaint. No diversity if any P is from the same state as any D.

Citizenship of a person is their domicile
Citizenship of a corporation is all states where incorporated and principal place of business (nerve center)

Single P against single D can aggregate claims. Multiple P’s can aggregate if they have an undivided interested. Can aggregate claims against multiple D’s when they are jointly liable.

Permissive counterclaims must meet AOC but compulsory do not.

Question 3

Supplemental JX

Answer 3

A court may exercise supplemental jurisdiction over additional claims so long as the claims arise out of a common nucleus of operative fact as the original claim.

Cross-Claims in diversity cases: allowed by defendants and each defendant doesn’t have to be diverse from each other.

Under diversity cases SJX is barred for P’s claims against parties joined by 14, 19, 20 and 24; claims by parties seeking to intervene under 24; and claims by parties proposed to be joined by 19. If these claims are to be included the must meet diversity and AIC.

Question 4

Removal

Answer 4

Defendant may remove so long as federal court can exercise SMJ over the case.

No defendant can remove if he is a citizen of the state where the claim was originally filed in a DJX case.

Motion for removal must be filed within 30 days of receiving the complaint and all defendants must join or consent.

Must be made to the district court for the district and division in which the state court action is pending.

In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal. § 1441(c)(2). In addition, a class action based on the Class Action Fairness Act of 2005 (CAFA) may be removed by any defendant without the consent of all defendants. § 1453(b).

Remand must be within 30 days after filing of notice of removal.

One year max after action is commenced for removing case based on diversity

Question 5

Traditional bases of PJ

Answer 5

Service while voluntarily present (appearance alone doesn’t waive right to object to PJ)

Domicile

Consent

Question 6

PJ Long-arm statute

Answer 6

D must have minimum contacts by purposeful availment (reasonably foreseeable to be sued in the state)

Relatedness of D’s conduct to action
Specific JX: action arises out of D’s conduct
General JX: D is essentially at home in JX. Domicile or corporation’s state of incorporation and principal place of business (continuous and systematic contact).

Fairness: Fair play and substantial justice
Interest of the forum state in adjudicating the matter; burden on defendant; interest in judicial system in efficient resolution; and shared interest of states in promoting common social policies.

Question 7

Waiver of PJ

Answer 7

Under Rule 12(b), the defenses of lack of personal jurisdiction over the person, insufficiency of process, and insufficiency of service of process must be asserted in a responsive pleading or by motion before a responsive pleading is submitted. A failure to object in accordance with Rule 12 waives the objection. Rule 12(h).

Question 8

Venue

Answer 8

Venue is proper in any federal district where (1) any defendant resides so long as all defendants reside in the same state, (2) a substantial portion of the events occurred, (3) a substantial part of the property at issue is located, or (4) any defendant is subject to personal jurisdiction—but only if the first three provisions do not exist.

Question 9

Change of venue

Answer 9

General rule: Transfer permitted to any district where case might have been brought or to which all parties consent. Check for SMJ, PJ, appropriate in new district, and is transfer in the interest of justice.

DJ – New district must apply law from previous court

unless there is a forum selection clause or the original venue was improper

FQ – New district court will use the federal law as interpreted by its court of appeals

Question 10

Forum selection clause and change of venue

Answer 10

if the venue of an action is transferred when the original venue is proper (as discussed above), then the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law. However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the conflict-of-law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.

Question 11

Erie Doctrine

Answer 11

For FQ federal substantive and procedural law applies

Substantive laws govern the rights and obligations of the parites. Procedural law establishes the legal rules by which substantive law is created, applied and enforced, particularly in a court of law.

For DJ state substantive law and federal procedural law applies

A state law that alters the calculation of damages, SOL, and evidentiary privileges are substantive.

When deciding if substantive a court must first

See if there is a federal law or rule on point. Federal law will apply and Federal rules apply when they don’t abridges, enlarges, or modifies the substantive rights of the parties.

Question 12

Temporary Restraining Order

Answer 12

Preserves the status quo until an opportunity for a full hearing. Effective for no longer than 14 days unless good cause exists or adversary consents. May be issued without notice if there is an effort to first give notice and reasons provided for why notice should onto be required

Must show immediate and irreparable injury will occur absent the TRO.

Question 13

Preliminary Injunction

Answer 13

Requires notice to the other party and P must show

*They are likely to succeed on the merits
*Likely to suffer irreparable harm in absence of injunction
*Balancing of the equities favors granting; and
*Injunction is in the best interest of the public

Question 14

Service of process to corporations and to individauls

Answer 14

Corporations – service may be made by serving an officer, managing agent, general agent, or agent authorized by law.

Individuals: can serve personally, to their agent, or can serve at their place of abode with a person of suitable age or discretion who resides there

Must be done with 90 days of filing the complaint

Question 15

Permanent injunction

Answer 15

Continues until dissolved by the court but any affected person may move for modification or dissolution.

Question 16

Waiver of service of processs

Answer 16

Request for waiver must be in writing and addressed to D, must give at least 30 days after request to return waiver

Effect: extends time to serve answer from 21 days after service of process to 60 days after waiver request sent, 90 days if foreign.

Question 17

Complaint requirements

Answer 17

A short/plain statement of court’s SMJ and P’s claim establishing entitlement to relief, and demand for judgment for relief sought

Question 18

Rule 12(b)

Answer 18

Motion to dismiss for lack for SMJ (can be raised anytime), lack of PJ, improper venue, insufficient process of service (these must be raised at the first opportunity, either the answer or first pre-answer motion)

Question 19

12b(6)

Answer 19

Motion to dismiss if the claim fails to assert legal theory of recovery cognizable at law or allege facts sufficient to support a cognizable claim; and court treats well-pleaded facts as true, resolves doubts/inferences in P’s favor, and views pleading in light most favorable to P.

Court’s two step analysis
1) identify and reject legal conclusions unsupported by factual allegations
2) Assume truth/veracity of well-pleaded facts and include context specific analysis that draws on court’s judicial experience and common sense to determine if allegations plausibly give rise to relief

Question 20

Motion for judgment on the pleadings 12(c)

Answer 20

after answer filed, allows court to dispose of a case when material facts are not in dispute and judgment on merits can be achieved based on contents of pleadings.

12c looks at only the complaint and answer.

MSJ will look at the rest of the evidentary record established.

Question 21

Answer and Reply

Answer 21

Must deny or admit P’s allegations or plead lack of sufficient knowledge and must assert affirmative defenses or they are waived

If there is no motion to dismiss must be done within 21 days after being served with summons and complaint (or 60 days if service is waived)

If there is a motion to dismiss, there is no filing while motion is pending, and then due within 14 days after notice of court’s action

Reply due within 21 days after being served with order to reply

Question 22

Amendments and Rule 15 relation back

Answer 22

P can amend once as a matter of right within 21 days after service on the defendant. Otherwise, must seek leave of court or consent from opponent.

Relation Back:
A new claim relates back to date of original pleading if amendment asserts claim/defense arose out of the same conduct, transaction, or occurrence as original claims.

Adding a new party: The claim must arise out of same conduct, transaction, or occurrence; new D must receive notice within 90 days of the original complaint; and new D must know or should have known that but-for a mistake, he would have been a part of the original complaint

Question 23

Rule 11 sanctions

Answer 23

When submitting a pleading, motion, or other signed document the attorney certifies it is filed in good faith

If challenged must be withdrawn or revised

A court can impose sanctions, including an order to pay the opposing party’s attorney’s fees, on a law firm (default), attorney, or party for violating one of the provisions of FRCP 11(b). Sanction proceedings can be initiated in two ways:

by a party’s motion – which requires the party to serve the motion on the alleged violator but refrain from filing it for 21 days after serving it to allow any violation to be corrected (i.e., safe-harbor rule) or

on the court’s own initiative (i.e., sua sponte) – which requires the judge to issue an order to show cause to the alleged violator.

Question 24

Permissive Joinder

Answer 24

Rule 20
Plaintiffs can join other P’s when:
i) They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

ii) Any question of law or fact common to all plaintiffs will arise in the action.

D:
i) Any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

ii) A question of law or fact common to all defendants will arise in the action.

SuppMJ won’t apply to D’s (because they are joined by 20) so a P’s claim against them must meet AIC and they must be diverse

If a P joins under rule 20 against one defendant SuppMJ exists and their only needs to be complete diversity but they don’t have to meet the AIC if other P’s claim does.

Question 25

Compulsory Joinder

Answer 25

The party must be necessary; There must be PJ and SMJ (can’t destroy diversity)

Necessary if the court cannot afford complete relief without the party; There is a danger that the party would be harmed without joining; or There is a risk of an inconsistent judgement or double liability

If parties cannot be joined b/c of venue or jx the court may consider them indispensable and dismiss the case

Question 26

Factors for indispensable parties

Answer 26

o Extent to which judgment without party would prejudice them or existing parties
o Extent to which protective measures could prevent prejudice
o Whether judgment rendered in necessary party’s absence would be adequate, and
o Whether P would have adequate remedy if action were dismissed

Question 27

Intervention

Answer 27

Intervention as a right if:
a) Nonparty has an interest in the subject matter of the action;
b) the action may affect their interest; and
c) the nonparty’s interest is not adequately represented by the existing party’s

Permissive intervention:
a) nonparty is granted conditional right under federal statute; or
b) nonparty has a claim or defense related to the original cause of action

Question 28

interpleader

Answer 28

Allows a person holding property (stakeholder) to force all potential claimants into single lawsuit

Rule 22
SMJ: Claimants don’t have to be diverse from each, only from stake holder.

Federal statutory interpleader
SMJ: Requires at least 2 claimaints to be diverse form each other. AIC must be $500. Nationwide service of process permitted and venue is proper in any district where claimaint lives

Question 29

Impleader

Answer 29

Third-party practice (i.e., impleader) allows a defendant to add a nonparty who may be liable to the defendant for all or part of the plaintiff’s claim. However, the court must have original subject-matter jurisdiction or supplemental jurisdiction over the third-party claim.

To initiate impleader, the defendant must file a third-party complaint (1) within 14 days of serving his/her original answer or (2) after this deadline with the court’s leave (i.e., permission).

Question 30

Class actions

Answer 30

Basic Requirements
* Numerosity—class is so numerous that joinder of all members is impracticable
* Commonality—must be questions of law or fact common to class
* Typicality—claims/defenses of representatives must by typical of class, and
* Adequacy—representatives must fairly and adequately protect the interests of class

Question 31

Scope of discovery

Answer 31

A party may discover any nonprivileged matter that is relevant to a claim or defense

Court may limit discovery if unduly expensive or burdensome

Does not need to be admissible evidence in order to be discovered

A party may not discover privileged information

Mandatory initial disclosures are generally within 14 days after the parties’ discovery conference

Question 32

Claim Preclusion

Answer 32

There must be a final judgement on the merits in the first suit

The second suit must be between the same parties or their successors in interest

The second suit must involve the same claim or cause of action (ALL legal theories to recover for harm arising out of a single transaction or occurrence count as the claim)

Includes default judgments

Question 33

Failure to prosecute case

Answer 33

A defendant can move for an involuntary dismissal if the plaintiff failed to prosecute the case or comply with a rule or court order. If the motion is granted, the case will be dismissed with prejudice (unless the court states otherwise) to prevent the plaintiff from suing the defendant on the same claim in the future.

Question 34

How many peremptory strikes does each side get

Answer 34

During jury selection, each party is entitled to (1) three peremptory challenges to strike potential jurors for any reason (other than race, ethnicity, gender) without an explanation and (2) an unlimited number of challenges for cause to strike potential jurors for bias or lack of impartiality.

Question 35

When is reply required

Answer 35

Only if the court orders it

Any allegation in the answer that requires a response and is not denied in the reply, other than one relating to the amount of damages, is deemed admitted by the plaintiff. If no reply is ordered, then allegations in the answer are deemed denied by the plaintiff.

Question 36

What states’ rules govern service of process

Answer 36

following the rules of the state where the court sits or where service is made

having process delivered to the defendant personally (or to an agent authorized to receive process) or

having process delivered to the defendant’s dwelling and left with a resident of suitable age and discretion—i.e., old enough to possess the limited capacity necessary to comprehend the situation.

Question 37

Can denial of class certification be immediately appealed?

Answer 37

Yes, an appellate court has discretion to permit an appeal from an order granting or denying class action certification if the petition for such an appeal is filed with the clerk of the appellate court within 14 days after the order is entered.

Question 38

When can appeal be made before final judgment

Answer 38

In certain circumstances an appeal can be made prematurely

Injunction
Court certification*
Class certification
Appointment of receiver
Admiralty
Collateral order doctrine
Bankruptcy (certain order)
Mandamus
Patent infringement (accounting left)

Question 39

When a motion to dismiss is granted against 1 of multiple defendants can it be appealed immediately?

Answer 39

When an action involves multiple claims or parties, a district court may enter final judgment as to fewer than all claims or parties if it expressly determines that there is no just reason for delay. A party may then appeal that judgment if the notice of appeal is filed with the district court clerk within 30 days after the entry of final judgment.

expressly determines that there is no just reason for delay. Must say this or it isn’t immediately appealable.

Question 40

Can district court correct a clerical mistake after the case is on the appellate docket?

Answer 40

Before an appeal is docketed in the appellate court, a district court can correct a mistake in a judgment, order, or other part of the record on its own initiative or pursuant to a party’s motion. But after an appeal has been docketed, the district court can correct the mistake only with the appellate court’s leave.

Question 41

Do courts honor forum selection clauses

Answer 41

Essay:

When transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. Furthermore, the Supreme Court has held that a forum selection clause should be given “controlling weight in all but the most exceptional cases.”