Civil Procedure

Question 1

Federal Question Jurisdiction

Answer 1

Requires that the plaintiff’s claim arise under the U.S. Constitution, or under the laws, treaties, etc., of the United States.

Question 2

Diversity Jurisdiction

Answer 2

Present where (1) a defendant does not reside in the same state as the plaintiff, and (2) the amount in controversy exceeds $75,000.

Question 3

Personal Jurisdiction

Answer 3

For a state court to exercise personal jurisdiction over a D, there must be (1) a state statute granting the court jurisdiction; and (2) the grant must be constitutional.

PJ is constitutional if D has engaged in such minimum contacts with the state that it would not offend traditional notions of fair play and substantial justice. Considers whether D has purposefully availed himself of that state’s jurisdiction and whether D could reasonably anticipate being hailed into the state’s courts.

Question 4

Proper Venue

Answer 4

In a judicial district in which: (1) any D resides, if all Ds are residents of the state in which the district is located; (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is subject of the action is situated; or (3) any D is subject to the court’s personal jurisdiction with respect to such action, if no other district in the US satisfies (1) or (2).

Question 5

Ex Parte TRO

Answer 5

Court may grant, in its discretion, an ex parte temporary restraining order if the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition.

Moving party must also: (1) certify in writing all efforts she made to give notice of the hearing to the adverse party and reasons why notice should not be required; and (2) provide some security, the amount of which is determined by the court, to pay for any costs/damages incurred by adverse party if he was wrongfully enjoined or restrained.

Question 6

When may the clerk sign and enter judgment for the amount and costs against defendant?

Answer 6

If: (1) P’s claim against the defaulted D is for a sum certain; (2) the default was entered because the D failed to appear; (3) the defaulted D is not an infant or incompetent person; and (4) the damages amount requested is not greater than the amount requested in the complaint.

Question 7

Final Pretrial Conference

Answer 7

Held for the purpose of formulating a plan for the trial, including the program for admission of evidence. After the pretrial conference, the court issues an order that controls the subsequent course of events in the case, including issues needing resolution and the order in which they are presented to the jury.

Question 8

When may a party move for JMOL?

When may a motion for JMOL be granted?

Answer 8

A party may MOVE for JMOL at any time before submission of the case to jury.

The motion may be GRANTED only after the nonmoving party has been fully heard regarding issues and claims, and the court concludes that there is no legally sufficient evidentiary basis for a reasonable jury to conclude in favor of the nonmoving party.

Question 9

Non-Mutual Collateral Estoppel

Answer 9

The exercise of collateral estoppel by a person who was not a party to the prior litigation. However, non-mutual collateral estoppel cannot be used against a party unless that party had their day in court on that issue in the prior litigation.

Question 10

Complete Diversity

Answer 10

No plaintiff may share state citizenship with any defendant

Question 11

Citizenship of Corp (Diversity)

Answer 11

A corporation is a citizen of (1) every state in which it is incorporated and (2) the one state in which it has its principal place of business

Question 12

Corporation’s Principal Place of Business

Answer 12

The place from which the corporation’s high-level officers direct and control the corporation’s activities

Question 13

Citizenship of Individual (Diversity)

Answer 13

A individual is a citizen of the state in which she is domiciled

Question 14

Changing Domicile

Answer 14

A party’s domicile may be changed by being physically present in the state coupled with the intent to remain there permanently or for an indefinite period.

Question 15

Specific Jurisdiction (Personal Jurisdiction)

Answer 15

Means personal jurisdiction over the defendant for the instant cause of action only. Available if the defendant’s contacts are related to the course of action.

Question 16

General Jurisdiction (Personal Jurisdiction)

Answer 16

Means personal jurisdiction over the defendant for all causes of action. Available when the defendant’s contacts are unrelated to the cause of action. To subject a defendant to general jurisdiction in a forum state, the defendant must be “at home” there.

Question 17

When is review under the Interlocutory Appeals Act available?

Answer 17

When: (1) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an appeal would materially advance the conclusion of the case; and (2) at least two appellate court judges agree to hear the appeal.

Question 18

Which interlocutory orders may be immediately appealed?

Answer 18

(1) an order granting/continuing/modifying/dissolving/or refusing to dissolve an injunction; (2) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships; (3) decrees in admiralty cases that find liability but leave damages to be assessed later; (4) a patent infringement order where only an accounting is wanting; and (5) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.

Question 19

How many days from entry of judgment does a party have to file a notice of appeal?

Answer 19

30 days

Will be extended to 60 days when the US is a party to the action.

Question 20

Is summary judgment a final judgment?

Answer 20

Only if it disposes of all the parties’ claims or the court expressly determines that there is no just reason for delay.

Question 21

When DISTRICT JUDGE decides QUESTIONS OF LAW, what standard of review does the court of appeals review?

Answer 21

De Novo

Question 22

In a non-jury trial, when the DISTRICT JUDGE determines QUESTIONS OF FACT, the court of appeals will affirm, unless…

Answer 22

findings are clearly erroneous

Question 23

In a jury trial, when the JURY decides QUESTIONS OF FACT, the court of appeals will affirm, unless…

Answer 23

Reasonable people could not have made that finding

Question 24

On discretionary matters, the court of appeals will affirm, unless…

Answer 24

The district judge abused her discretion

Question 25

What must a party do in order to reserve its right to appeal an error in an instruction?

Answer 25

A party must object on the record before the instructions are given. If adequately preserved, instructions are reviewed using an abuse of discretion standard.

Question 26

On what grounds may the court relieve a party from a final judgment or order?

Answer 26

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial;
(3) fraud, misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of judgment

Question 27

When may a case be removed to federal court?

Answer 27

If (1) diversity, UNLESS: (a) Any defendant is a citizen of the forum; and (b) it’s been more than 1 year since the case was filed in state court.

or (2) federal question.

PLAINTIFF MAY NEVER NEVER NEVER REMOVE

Question 28

To what court does a D remove?

Answer 28

D removes to the federal district “embracing” the state court where the case was filed.

Question 29

Doctrine of Issue Preclusion

Answer 29

A judgement binds the plaintiff or defendant in subsequent actions on different causes of action as to issues that were actually litigated and essential to the judgment.

Question 30

What are the requirements for a party to be bound by issue preclusion?

Answer 30

(1) There must have been a final judgment;
(2) The issue must have been actually litigated and determined;
(3) The issue must have been essential to the judgment; and
(4) The party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action.

Question 31

When should a party be joined?

Answer 31

If:

(1) complete relief cannot be given to the existing parties in his absence;
(2) the disposition in the party’s absence may impair the absent party’s ability to protect her interest in the controversy; or
(3) the party’s absence would expose existing parties to a substantial risk of double or inconsistent obligations.

Question 32

Three Step Joinder Process

Answer 32

(1) Whether the party SHOULD be joined;
(2) If the party should be joined, whether it is FEASIBLE to join the party; and
(3) If the party should be joined and the joinder is feasible, whether the party MUST be joined.

Question 33

Permissive Counterclaim

Answer 33

A defendant may assert any counterclaim he may have even if there is no relationship between it and the plaintiff’s claim.

Question 34

Compulsory Counterclaim

Answer 34

If the counterclaim arises out of the same transaction or occurence as the plaintiff’s claim, it is a compulsory counterclaim and must be pleaded or it is barred.

Question 35

How may service be made?

Answer 35

(1) Personally;
(2) By leaving the process at the D’s usual place of abode with one of suitable age and discretion residing therein;
(3) By serving the D’s authorized agent; or
(4) As permitted under state law.

Question 36

When must a motion for insufficient service of process be made?

Answer 36

At the first opportunity, i.e. when, in response to P’s complaint, the D first files a motion to dismiss or an answer, or else the defense is waived.

Question 37

Cross Claim

Answer 37

Co-parties may assert cross-claims against each other that arise out of the same transaction or occurrence as the main action.

Additionally, once a party has filed such a cross-claim, he may also join with it any other claim that he has against the same party.

Question 38

Merger

Answer 38

Occurs when the P wins; her cause of action is said to “merge” into the judgment such that she cannot relitigate the cause of action later.

Question 39

When may a pleading be amended?

Answer 39

A pleading, including an answer, may be amended once within 21 days of serving it. Thereafter, a pleading may be amended only by the written consent of the adverse party, or leave of court on motion.

Question 40

When should summary judgment be granted?

Answer 40

A motion for summary judgment must be granted if, from the pleadings, affidavits, and discovery materials, it appears that the there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

Question 41

Initial Disclosures (FRCP 26(a)(1))

Answer 41

Parties have a duty to disclose documentary evidence in their possession that they mat use to support their claims or defenses. The disclosures must be made at or within 14 days of the Rule 26(f) conference.

Question 42

By when must removal be sought?

Answer 42

Removal must be sought within 30 days after receipt by or service on that D of the initial pleading or summons, or, if the case is not initially removable, within 30 days of the case becoming removable.

Question 43

Traditional Mutuality Rule

Answer 43

Because an earlier judgment cannot be used AGAINST a person who was not a party, that person is similarly barred from TAKING ADVANTAGE of the judgment.

Question 44

Exception to the Traditional Mutuality Rule

Answer 44

A nonparty may rely on a prior judgment if:

(1) the issue decided in the first case was identical to that in the second;
(2) there was a final judgment on the merits;
(3) the party against whom the judgment is to be used had a fair opportunity to be heard on the critical issue; and
(4) the posture of the case is such that it would not be unfair or inequitable to a party to apply collateral estoppel.

Question 45

“Collateral Order” Exception to rule that only final orders may be appealed

Answer 45

If a claim or issue is separable from and collateral to the main suit, and it is a claim that is too important to require deferring appellate review, it may be classified as a judgment in a separate (“collateral”) proceeding and thus be appealable.

Question 46

What must a plaintiff show to have a writ of mandamus issued?

Answer 46

(1) That he has no other adequate means, such as direct appeal, to obtain the relief desired; and
(2) The trial court’s action constitutes a serious abused of power that must be immediately corrected.

Question 47

How may service of process on a foreign corporation be made? (FRCP)

Answer 47

1) in accordance with international treaty. If there is not treaty, then service the corporation may be made: i) in accordance with the foreign country’s laws, ii) as the foreign authority directs in response to a letter request for guidance, iii) by having the clerk mail process to the defendant, with a signed receipt requested, or iv) by any other means not prohibited by international agreement as the court may order

Question 48

How may service of process on a foreign corporation be made? (US Constitution)

Answer 48

The method of service ordered by the court must be reasonably calculated to provide the defendant with notice of the action.