Civ Pro - Topics with Elements

Question 1

Pjx Has Two Tests, what are they?

Answer 1

Statute (Long Arm) and Constitutional

Question 2

What do you have to show to meet the Constitutional Test for Pjx

Answer 2

 (A) Contact: Purposeful availment and foreseeability;
 (B) Relatedness: “Arise out of and relate to”. determines whether jurisdiction will be based on general PJ or specific general PJ; and
 (C)Fairness (specific PJ only): Burden/convenience, state’s interest, and plaintiff’s interest.

Question 3

What are the Fairness Factors for PJx

Answer 3

o Burden on the defendant and witnesses. Due process does not guarantee that suit will be in the most convenient forum for the defendant. So even if it’s hard for the defendant to travel to the forum and to get her witnesses to the forum, the forum is constitutionally OK unless the defendant can show that it puts her at a severe disadvantage in the litigation. This is a very difficult burden to meet because the relative wealth of the parties is not determinative.
o State’s interest. The forum state may want to provide a courtroom for its citizens who are allegedly being harmed by out-of-state defendants. You should mention the state’s interest in an answer to an essay question.
o Plaintiff’s interest. The plaintiff is maybe injured in the forum state and/or wants to sue at home.

Question 4

What two documents comprise notice?

Answer 4

Summons and copy of the complaint

Question 5

Who can serve process?

Answer 5

o Any person who is at least 18 years old and not a party to the action may serve process.

Question 6

How long do you have to serve someone?

Answer 6

o If the defendant is to be served within the United States, service must take place within 90 days of the filing of the complaint.
o This period may be extended for good cause.

Question 7

How is service served on an individual?

Answer 7

Personal service, leaving at the Ds usual abode with someone of sutiable age who resides there, service on a registered agent, or any state law method where the court sits or service is made

Question 8

How is service served on a business or org?

Answer 8

• Delivering to an officer (for example, president, treasurer) or a managing or general agent a copy of the summons and of the complaint, or
• Using a method permitted by the state: (1) where the federal court sits or (2) where service is to be made.

Question 9

How is service served on a minor or incomp?

Answer 9

Methods allowed by state law of the state in which service is to be made.

Question 10

How is service made on someone in a foreign country

Answer 10

 A method allowed by international agreement (for example, the Hague Convention) may be used.
 Or, if there’s no such agreement on point, the options (subject to the constitutional requirement that the method must be reasonably calculated to give notice) are:
* As directed by the American court; or
* Method allowed by the foreign country’s law; or
* Method directed by foreign official in response to a letter of request (letter rogatory) from the American court; or
* Personal service in the foreign country (unless prohibited by its law); or
* Mail sent by the clerk of the American court, requiring signed receipt (unless prohibited by the foreign country’s law).

Question 11

How long does a D have to waive service of process?

Answer 11

3o days, 60 if out of US

Question 12

Cases that state courts cannot hear?

Answer 12

patent infringement, bankruptcy, some federal securities, and antitrust claims.

Question 13

Cases that fed courts refuse to hear?

Answer 13

Even if the requirements for diversity or alienage jurisdiction are met, federal courts decline to hear actions for divorce, alimony, child custody, and actions to probate an estate. These can be called “excluded” cases.

Question 14

How does a D remove the case?

Answer 14

o The defendant files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (diversity or FQ).

o The defendant attaches all documents that were served on her in the state action.

o The defendant then “promptly” serves a copy of the “notice of removal” on adverse parties and files a copy of the “notice of removal” in state court.

Question 15

How lond does a D have to remove a case?

Answer 15

o The defendant must remove no later than 30 days after service (not filing) of the first paper that shows the case is removable.

Question 16

What is removal venue?

Answer 16

o The defendant removes to the federal district court “embracing” the state court where the case was filed and that court is now a proper Venue.
o It does not matter if this venue would have been proper under the venue statutes.

Question 17

How long does P have to file a motion for remand?

Answer 17

No later than 30 days after filing of notice of removal

Question 18

Test for Supp Jx?

Answer 18

• Common Nucleus: The claim that we want to get into federal court must share a “common nucleus of operative fact” with the claim that satisfied federal SMJ (the claim that got the case into federal court).
  o When is this test always met? When a claim arises from the same transaction or occurrence (“T/O”) as the underlying case.
  o However, the test is broader than T/O.

Question 19

Limitation on Supp Jx in diversity cases

Answer 19

o In diversity cases, claims by plaintiffs generally cannot invoke supplemental jurisdiction.

o The exception to the limitation applies when there are multiple plaintiffs, and the claim by one of them does not meet the amount in controversy requirement.

Question 20

Is supp jx discretionary?

Answer 20

o Even if we meet the requirements for supplemental jurisdiction, the court has discretion to decline it. It can do so if the state law claim is complex or state law issues would predominate in the case. But the more likely one is this: It can decline supplemental jurisdiction if the claim on which federal SMJ is based is dismissed early in the case.

Question 21

Steps for an Erie Question?

Answer 21

o (1) Ask: Is there some federal law (like the Constitution, federal statute, Federal Rule of Civil Procedure, or Federal Rule of Evidence) on point that directly conflicts with state law? If so, apply the federal law, as long as it is valid.

o (2) If there is no federal law on point, the federal judge must apply state law if the issue to be decided is “substantive.”

o (3) If there is no federal law on point and the issue is not one of the five just listed above, the federal judge must determine whether the issue is “substantive.”

Question 22

What five issues are always substantive for Erie?

Answer 22

• Conflict (or choice) of law rules;
• Elements of a claim or defense;
• Statutes of limitation;
• Rules for tolling statutes of limitations; and
• The standard for granting a new trial because the jury’s damages award was excessive or inadequate

Question 23

What factors will the courts consider in determining if an issue is substantive for purposes of Erie if it is not one of the 5 special ones?

Answer 23

• Outcome determinative: Would applying or ignoring the state rule affect the outcome of the case? If so, it’s probably a substantive rule, so the court should use state law.
• Balance of interests: Does either the federal or state system have strong interest in having its rule applied? The one with the greater interest should have its law applied.
• Avoid forum shopping: If the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, the court should probably apply state law.

Question 24

Where can venue be laid?

Answer 24

 All defendants reside (residential venue);
* Venue is proper in any district where a D resides if all Ds reside in the same state.
 A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue).

Note also the removal venue rule

Question 25

Where do buisnesses/orgs reside for venue purposes?

Answer 25

in all districts where it is subject to PJ for the case.

Question 26

What factors are considered for a trasnfer of venue?

Answer 26

o Public: The court will consider things like what law applies, what community should be burdened with jury service, the desire to keep a local controversy in a local court.
o Private: The court considers convenience. For example, it will look to where the defendants and evidence are found.

Question 27

What must be included in a complaint?

Answer 27

o A statement of grounds of subject matter jurisdiction;
o A short and plain statement of the claim showing that the plaintiff is entitled to relief; and
o A demand for relief sought (for example, damages, injunction, declaratory judgment).

Question 27

Rule 12 defenses that can be waived first time?

Answer 27

PJx, Venue, Improper Process, Improper SOP

Question 28

How late can failure to state a claim and failure to join an indespensible party claims under Rule 12 be brought?

Answer 28

made as late as at trial.

Question 29

Ammended pleading as of right?

Answer 29

One freebie within 21 days

Question 30

What must you show for an ammended pleading to relate back if it is trying to change the D?

Answer 30

• The amendment concerns the same conduct, transaction, or occurrence as the original;
• The defendant had such knowledge of the case such that she will be able to avoid prejudice; and
• The defendant knew or should have known that, but for a mistake, she would have been named originally.

o The knowledge referenced in the last two points must have come within the period for service of process (90 days after the filing of the complaint). And, this provision applies when the plaintiff sued the wrong defendant first, but the right defendant knew about it.

Question 31

What does a rule 11 sig certify?

Answer 31

 The paper is not for an improper purpose;
 The legal contentions are warranted by law or a nonfrivolous argument for a law change; and
 The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation.
 In addition, a party makes this certification every time she “presents” a position to the court (for example, when she later advocates a position taken in the document). It is a “continuing certification.”

Question 32

What is the Rule 11 safe Harbour?

Answer 32

If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions. Rather, she serves the motion on other parties but does not file it with the court yet. The party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed with the court.

Question 33

What must be shown to join serveal parties?

Answer 33

various claims must (1) arise from the same transaction or occurrence (“T/O”); and (2) raise at least one common question of law or fact.

Question 34

What does the court look at to determine if an absentee party is necessary?

Answer 34

• Without the absentee, the court cannot accord complete relief among the existing parties (worried about multiple suits); or
• The absentee’s interest may be harmed if she is not joined; or
• The absentee claims an interest that subjects a party (usually the defendant) to a risk of multiple obligations.
• Note: joint tortfeasors are never necessary.

Question 35

What factors does the court consider when deciding whether a claim can proceed when an indespensible party cannot be joined?

Answer 35

o Is there an alternative forum available? (maybe some state court);
o What is the actual likelihood of harm to the absentee?; and
o Can the court shape relief to avoid that harm to the absentee?

Question 36

How long does P have to respond to a counterclaim

Answer 36

o After the defendant serves a counterclaim against the plaintiff, the plaintiff must respond under Rule 12 within 21 days of service of the counterclaim.

Question 37

PJx loophole for an absent or impleaded party?

Answer 37

served in a district in the United States and not more than 100 miles from the federal court that issued the summons regardless of his contacts with the forum. If more than 100 miles, there must be traditional contacts-based PJ.

Question 38

Certification Requirements for a class

Answer 38

 Numerosity - Numerosity means that there are too many class members for practicable joinder. There is no magic number.
 Commonality - There must be some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.
 Typicality - The class rep’s claims are typical of the claims of the class
 Adequate Representation - The class rep will fairly and adequately represent the class

Question 39

What are the mandatory required Disclosures?

Answer 39

Infor on parties with discoverable info you may use to help case;
ESI you may use to help case;
Computation of damages;
Infor on insurance that may cover damages

Question 40

What are required pretrial disclosures?

Answer 40

o No later than 30 days before trial, the parties must give detailed information about their trial evidence, including identity of witnesses who will testify live or by deposition and documents, ESI, and other things that they intend to introduce at trial.

Question 41

List of Merits Sanctions

Answer 41

• Establishment order (establishes facts as true);
• Strike pleadings of the disobedient party (as to issues re the discovery);
• Disallow evidence from the disobedient party (as to issues re the discovery);
• Dismiss plaintiff’s case (if bad faith shown);
• Enter default judgment against defendant (if bad faith shown)

Question 42

What must be shown for a TRO to be issues ex parte

Answer 42

• The applicant files a paper under oath clearly showing that if the TRO is not issued, she will “suffer immediate and irreparable harm” if she must wait until the other side is heard.
• The applicant’s lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant’s lawyer (or why such notice should not be required in this case).
   Bond - If the court issues the TRO, the applicant must post a bond to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

Question 43

Elements for a preliminary injunction

Answer 43

• She is likely to suffer irreparable harm if the injunction is not issued;
• She is likely to win on the merits of the underlying case;
• The balance of hardship favors her (threatened harm to applicant outweighs harm to other party if the injunction is issued); and
• The injunction is in the public interest.

Question 44

When can default judgment be entered by a clerk?

Answer 44

• The defendant has made no response at all (that is, she has not “appeared”);
• The claim itself is for a sum certain in money;
• The plaintiff gives an affidavit (sworn statement) of the sum owed; and
• The defendant is not a minor or incompetent.

Question 45

Timing for moving for summary judgment

Answer 45

Any party can move for summary judgment no later than 30 days after close of discovery.

Question 46

What is a Rule 26(f) conference?

Answer 46

o Unless the court order says otherwise, at least 21 days before the court’s scheduling order, the parties “meet and confer” to discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information. They must present to the court a detailed discovery plan no later than 14 days after the Rule 26(f) conference.
o Contents - The plan must include views and proposals on timing, issues about discovery of ESI, including how it will be produced and any problems retrieving it (for example, deleted files), etc.

Question 47

Timing for jury demand

Answer 47

A party must demand the jury in writing no later than 14 days after service of the last pleading addressing a jury triable issue.

Question 48

Timing/Prequisites for a RJMOL?

Answer 48

o Timing - The RJMOL must be made within 28 days after entry of judgment.
o Prerequisite - The party must have moved for JMOL at the proper time at trial. Failure to do so waives RJMOL. Not only that, the RJMOL motion must be based upon the same grounds as the JMOL motion.

Question 49

Reasons a motion for new trial may be issued?

Answer 49

 The judge gave an erroneous jury instruction;
 New evidence was discovered that could not have been discovered before with due diligence;
 Misconduct was committed by a juror, party, or lawyer, etc.;
 The judgment is against weight of the evidence (serious error of judgment); and
 Damages are inadequate or excessive.

Question 50

Timing for filing a notice of appeal?

Answer 50

The notice of appeal must be filed with the district court within 30 days after entry of the judgment that is being appealed.

Question 51

Elements of claim preclusion

Answer 51

Same claimant against same defendant;
Final, valid judgment on the merits;
Case 1 and Case 2 are same

Same claim usually means just that it arose from the same transaction or occurence; a minority of states do not follow this rule.

Question 52

When is a judgment on the merits?

Answer 52

 Unless the court said the judgment was “without prejudice” when entered, any judgment is “on the merits” unless it was based on a lack of jurisdiction (both personal and subject matter), improper venue, or a failure to join an indispensable party.

Question 53

• In determining whether nonmutual offensive issue preclusion is fair, the court will consider whether:

Answer 53

o The party to be bound had a full and fair opportunity to litigate in Case 1;
o The party to be bound had a strong incentive to litigate Case 1.
o The party asserting issue preclusion could have easily joined to Case 1.
o There have been no inconsistent findings on the issue.

Question 54

Elements of Issue Preclusion

Answer 54

Final judgment on merits;
Issue was actually litigated;
Issue was necessary to the judgment;
Used against someone that was a party or in privity from case 1
Weird one