Civil Procedure

Question 1

Attachment

Answer 1

Process by which another’s property is seized in accordance with a writ or judicial order for the purpose of securing a judgment to be entered.

May be used by federal court at any time following commencement of the action for the purpose of securing satisfaction of a potential judgment.

Question 2

TRO

Answer 2

Granted by a court when it is necessary to prevent irreparable injury to a party, and the injury will result before a preliminary injunction hearing can be held.

Expires after 14 days. An extension of the TRO before the hearing is dependent on a showing of good cause.

Question 3

CAFA (Class Action Fairness Act of 2005)

Answer 3

Permits federal courts to preside over certain class actions in diversity jurisdictions where the aggregate amount in controversy exceeds $5 million; where the class comprises of at least 100 plaintiffs; and where there is at least “minimal diversity” between the parties.

A court may only approve coupon settlement after the court holds a settlement hearing to ensure that the settlement is fair.

Question 4

Permissive Joinder (FRCP 20)

Answer 4

Plaintiffs may join together in an action if: (1) their claims must arise from a single transaction, occurrence, or series of transactions or occurrences; and (2) there is a question of law or fact common to all plaintiffs which will arise in the action.

Question 5

Impleader (FRCP 14(a))

Answer 5

A defendant alleging that a third person is liable to him for all or part of the plaintiff’s claim against him may implead such a person as a third-party defendant.

For a third-party claim to be valid, the claim must be “derivative,” meaning the third-party defendant’s own liability is a prerequisite for holding the third-party defendant liable.

Usually used for indemnity, subrogation, contribution, and breach of warranty.

Question 6

Notice Pleading

Answer 6

System that requires pleadings to notify parties of general issues in the case. This allows parties drafting pleadings to state their claims in general terms without alleging detailed facts to support each claim.

Under the FRCP, the complaint must include a short and plain statement that includes factual allegations to allow the court to find the claim plausible, not merely possible.

Question 7

Motion for Summary Judgment (FRCP 56)

Answer 7

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

May move for at any time until 30 days after the close of discovery.

Question 8

Service of Individuals

Answer 8

(1) Personal service;
(2) Service left at the person’s usual place of abode with one of suitable age and discretion residing therein; or
(3) Service upon an authorized agent of the defendant.

Question 9

Service of Corporations/Partnerships/Etc.

Answer 9

Serving an (1) Officer; (2) Managing or general agent; or (3) An authorized agent of the corporation.

Question 10

Service of Party in Foreign Country

Answer 10

May be served: (1) As provided in an international agreement; (2) In absence of an agreement, as provided by the foreign country’s law or as directed by a foreign official; (3) By personal service or mail, unless prohibited by the foreign country’s laws; or (4) By any method the court orders that is not prohibited by international agreement.

Question 11

Preliminary Injunction

Answer 11

Ordinarily will be granted when:

(1) The plaintiff will suffer irreparable harm if the injunction is not granted;
(2) The harm to the plaintiff outweighs the harm to the defendant;
(3) The plaintiff shows that he is likely to be successful on the merits; and
(4) The public interest favors granting the injunction.

Question 12

When will a TRO be granted without notice to the adverse party?

Answer 12

If the moving party: (1) states specific facts in an affidavit or verified complaint of the irreparable injury she will suffer if the TRO is not granted; (2) certifies in writing the efforts she made to notify the adverse party and/or the reasons why notice should not be required; and (3) provides security to pay for any damages incurred by the adverse party if the court later finds he was wrongfully restrained.

Question 13

Garnishment

Answer 13

Court order directing that money or property in the hands of a third party be seized.

Question 14

Replevin

Answer 14

Plaintiff takes possession of and holds disputed property during the lawsuit.

Question 15

Which Motion to Dismiss Defenses must the defendant raise the first time he files a motion or answer?

Answer 15

• Lack of personal jurisdiction
• Improper venue
• Insufficiency of process
• Insufficiency of service of process

If defendant does not, he waives these defenses

Question 16

Which Motion to Dismiss Defenses may be raised at any time prior to trial or at trial?

Answer 16

• Failure to state a claim upon which relief can be granted

- Failure to join an indispensable party

Question 17

Which Motion to Dismiss Defenses may be raised at any time, even on appeal?

Answer 17

• Lack of subject matter jurisdiction

Question 18

By when must a defendant present an answer?

Answer 18

If formally served + no pre-answer motion = within 21 days after service

If waived service = within 60 days after request for waiver was mailed to her

If pre-answer motion = within 14 days after court’s denial or postponement of the motion

If granted motion for more definite statement = within 14 days after service of more definite statement

Question 19

Amending Pleadings

Answer 19

Pleading may be amended once within 21 days of its service, or if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or pre-answer motion. Thereafter, leave to amend is by consent or by leave of court, which must be freely given.

For SOL purposes, an amendment to a pleading that arises from the same conduct, transaction, or occurrence that was set forth in the original pleading generally is deemed filed on the date that the original pleading was filed.

Question 20

Changing Party

Answer 20

An amendment naming a new adverse party relates back if, within the time for service of process, the new party had sufficient notice of the action to avoid prejudice and knew or should have known that, but for a mistake concerning her identity, she would have been named originally.

Question 21

How may the matter of sanctions be raised?

Answer 21

(1) The court, on its own initiative, may enter an order describing the matter that appears to violate Rule 11 and direct the proponent to show cause why sanctions should not be imposed; or (2) the opposing party may serve a motion for sanctions on the proponent, and if the proponent does not withdraw or correct the matter within 21 days, the opposing party may then file the motion for sanctions with the court.

Question 22

When should the absentee be joined?

Answer 22

Absentee should be joined when:

(1) Complete relief cannot be accorded among the other parties to the lawsuit in the party’s absence; or
(2) The absentee has such an interest in the subject matter that a decision in his absence will either impair or impede his ability to protect the interest or leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Question 23

When can the absentee be joined? (If determined that the absentee should be joined)

Answer 23

If the court has PJ over the absentee, and the absentee’s presence would not destroy SMJ or venue, the absentee can and MUST be joined.

Question 24

When should the action proceed without the absentee? (If determined that the absentee should be joined, but cannot be joined)

Answer 24

If the absentee cannot be joined, the court should look to: (1) the extent of prejudice to the absentee or available parties; (2) the extent to which such prejudice can be reduced or avoided; (3) the adequacy of a judgment rendered without the absentee; and (4) whether the party will have an adequate remedy in another forum if the case is dismissed for non-joinder.

Question 25

When is class action proper?

Answer 25

A class action is proper if:

(1) The class is so numerous that joinder of all members is impracticable;
(2) There are questions of law or fact common to the class;
(3) Named parties’ interests are typical of the class;
(4) Named parties will adequately represent the interests of the absent members of the class; and
(5) One of the following three situations is present: (a) separate actions would create a risk of inconsistent results or impair the interests of unnamed parties; (b) the defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; or (c) common questions of law or fact predominate over individual issues and a class actions is superior to alternate methods of adjudication.

Question 26

Specific Personal Jurisidiction

Answer 26

Jurisdiction over the defendant for a particular case only.

Exists when the defendant commits an act within the jurisdiction and that act is what gives rise to the cause of action.

Question 27

General Personal Jurisdiction

Answer 27

Jurisdiction over the defendant for all causes of action.

Exists when the defendant is “at home” in the jurisdiction.

Question 28

Intervener

Answer 28

When a potential party (1) claims an interest relating to the property or transaction that is the subject of the action, (2) the disposition of the action may adversely affect that interest, and (3) that interest is not adequately represented by the existing parties, the intervenor must be allowed to intervene.

Question 29

Will a forum selection clause in a contract be enforceable?

Answer 29

Yes, unless some exceptional public interest factor dictates otherwise, such as the law of the chosen state would be contrary to a fundamental public policy of a state that has a materially greater interest than the chosen state in determining the particular issue.

Question 30

May a deposition be taken by telephone or other remote means?

Answer 30

Yes. A court may grant a protective order limiting depositions to telephonic or another remote means if a party has a far distance to travel (like foreign country).

Question 31

Collateral Order Doctrine

Answer 31

(1) The lower court must have conclusively determined the disputed question;
(2) The issue must be separate from and collateral to the merits of the main issue of the case; and
(3) The issue must be effectively un-reviewable on an appeal from final judgment.