Civil Procedure

Question 1

Forum non conveniens

Answer 1

Allows federal courts to dismiss or stay a lawsuit if a state or foreign judicial system is better suited to hear the case

This is permitted even when subject matter jurisdiction, personal jurisdiction, and venue are proper

Court must consider private and public interest factors, including the accessibility of evidence and witnesses

This should rarely be applied

Question 2

A party may demand a jury trial on any triable issue by:

Answer 2

(1) serving the other parties with written jury trial demand no later than 14 days after the last pleading directed to that issue is served, and
(2) filing the jury trial demand with the court within a reasonable time after service of the demand

Question 3

A preliminary injunction can only be granted after what?

What must a preliminary injunction contain?

Answer 3

• Notice of the hearing to the adverse party and a hearing on whether the injunction should issue

(1) The reasons why it was granted,
(2) a reasonable description of the prohibited or commanded acts, and
(3) the specific terms

Question 4

Under the Erie analysis, when it is unclear whether an issue is substantive or procedural, a federal court sitting in diversity must apply state law if:

Answer 4

(1) it would be outcome determinative, and

(2) there is no countervailing federal policy interest

Question 5

When must the initial conference to plan for discovery be held?

Answer 5

As soon as practicable, but at least 21 days before a scheduling conference is held or the judge’s scheduling order is due

Question 6

The domicile/citizenship for purposes of diversity of an unincorporated association (partnership, LLC) is:

Answer 6

Every state where its members or partners are domiciled

Question 7

The collateral order doctrine allows for an interlocutory appeal when:

Answer 7

(1) a district court order conclusively resolves an important issue,
(2) that issue is separate from the merits of the underlying claim, AND
(3) that order is effectively not reviewable on appeal from a final judgment

*Order rejecting attorney-client privilege claim is NOT a collateral order

Question 8

Valid subpoenas issued by federal courts to U.S. citizens in foreign countries are validly served when the serving party:

Answer 8

(1) uses a method of service allowed by the federal rules, and
(2) pays the citizen’s attendance and travel expenses

Question 9

A party can move for extraordinary relief within ONE year from the entry of a final judgment or court order that is based on:

Answer 9

(1) mistake, inadvertence, surprise, or excusable neglect,
(2) newly discovered evidence, or
(3) the opposing party’s fraud, misrepresentation, or misconduct

Question 10

When removal is based solely on diversity jurisdiction, the action may not be removed if:

Answer 10

the defendant is a citizen of the state in which the action is filed

Question 11

A court can exercise supplemental jurisdiction in a federal question case when:

Answer 11

Addition claims against the same party arise out of the common nucleus of operative fact

Question 12

Permissive Joinder

Answer 12

(i) Joining party asserts 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

Question 13

Counterclaim jurisdiction

Answer 13

Compulsory: D against P so long as it arises out of same transaction or occurrence and court has SMJ over original claim

Question 14

Cross-Claim

Answer 14

May be asserted by:
- D against another D, or
- P against another P IF
the cross-claim arises out of the same transaction or occurrence as the initial claim, WITHOUT REGARD to the amount in controversy or the citizenship of the parties to the cross-claim, as long as the court has subject matter jurisdiction over the original claim

Question 15

Service of Process - Federal Court sitting in diversity jurisdiction and federal question

Answer 15

Service may be effectuated through methods provided in federal rules AND may be effectuated by following the forum state’s law regarding methods of service

Question 16

D must respond to an amended complaint within how many days after its service?

Answer 16

14

Question 17

Can a class, pursuant to diversity jurisdiction only, be certified if no members of the putative class have a claim that meets the jurisdictional amount?

Answer 17

No, at least one member must meet the statutory jurisdictional amount for the court to exercise diversity jurisdiction.

Question 18

A party can file a motion to alter or amend a final judgment within 28 days after entry of the judgment on any of the following grounds:

Answer 18

1) Judgment is based on a manifest error of law or fact,
(2) Alteration or amendment is necessary to prevent manifest injustice,
(3) New evidence that was unavailable during trial has been discovered, or
(4) Intervening change in the controlling law

Question 19

In a jury trial, regarding jury instructions, a court:

Answer 19

(1) may instruct the jury at any time before the jury is discharged,
(2) MUST inform the parties of its proposed instructions before it instructs the jury and BEFORE the parties give their closing arguments, AND
(3) MUST give the parties an opportunity to object on the record and outside the presence of the jury before the instructions and closing arguments are delivered to the jury

Question 20

Plaintiff is required to plead special damages with:

Answer 20

Specificity

Question 21

Interpleader

Answer 21

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

Question 22

Intervention as of Right

Answer 22

(i) non party has an interest
(ii) disposition would impair that interest, and
(iii) non party’s interest is not adequately represented by existing parties

Question 23

Expert reports must be produced if:

Answer 23

Expert will testify at trial (must disclose 90 days before)

*If expert will not testify at trial, do not have to produce unless opposing party shows substantial need

Question 24

Judgment based on jury verdict must be upheld if:

Answer 24

there was substantial evidence to support the verdict

Question 25

Claim Preclusion (Res Judicata)

Answer 25

A final judgment on the merits of an action precludes a party from successive litigation of an identical claim in a subsequent action

Elements:

(1) Valid final judgment,
(2) Sufficiently identical claims, and
(3) Sufficiently identical parties (or their privies)

*IF P sues on less than all claims arising from a transaction, those claims merge if P wins or they are barred if P loses

Question 26

Issue Preclusion (Collateral Estoppel)

Answer 26

Precludes re-litigation of issues of fact or law that have already been necessarily determined in an earlier adjudication

Requires only that the party against whom the issue is to be precluded was a party to the original action

Elements:

(1) Same issue,
(2) Actually litigated,
(3) Final, valid judgment, and
(4) the determination of the issue must have been essential to the prior judgment

*May be used OFFENSIVELY

Question 27

In a civil action in federal court sitting under diversity jurisdiction, when an insurer is sued directly:

Answer 27

The insurer is domiciled in its state of incorporation, its HQ state, and the state in which the INSURED is domiciled

Question 28

A party must first file a JMOL when?

Answer 28

Prior to the case being submitted the jury. If they do so, then they can filed renewed JMOL after verdict and entry of judgment

Question 29

What interlocutory orders are reviewable immediately, as of right?

Answer 29

(1) An order granting, modifying, refusing, or dissolving and INJUNCTION;
(2) An order appointing or refusing to appoint a RECEIVER; and
(3) A decree determining the rights and liabilities of the parties to ADMIRALTY cases in which appeals from final decrees are allowed

Question 30

Initial disclosures

Answer 30

Information about each individual who could have discoverable information, documents used to support claims/defenses, computation of damages, insurance agreements if it could cover the judgment

Must be made within 14 days after discovery conference

Question 31

Temporary Restraining Order (TRO)

Answer 31

May be issued without notice to adverse party IF:

(1) immediate and irreparable injury will result, and
(2) movant’s attorney certifies efforts made to give notice or the reason why notice should not be given

Question 32

Class is appropriate under CAFA when:

Answer 32

(1) class involves at least 100 members,
(2) primary Ds are not states, state officials, or other government entities,
(3) not securities related or litigation concerning the internal affairs or governance of a corporation,
(4) AIC exceeds $5 million, and
(5) minimum diversity exists (any member of class is diverse from any defendant)

If seeking injunctive/declaratory relief, additional claim for INDIVIDUALIZED monetary damages may not be sought

Question 33

Alternative and inconsistent theories within a pleading are:

Answer 33

Permitted

Question 34

Unless the parties stipulate otherwise, jury verdicts:

Answer 34

must be unanimous and must be returned by a jury of at least six members

Question 35

If joint and several liability applies and not all potentially liable parties have been joined, are those other parties necessary parties?

Answer 35

No. Because joint and several liability applies, those parties are not subject to compulsory joinder since the plaintiff can recover all damages from the named party

Question 36

Voluntary dismissal (by plaintiff) is appropriate without consent if dismissal is timely. When is the dismissal timely?

Answer 36

If it is made before an answer to the complaint is filed or before a MSJ is filed

Question 37

Expert Disclosure

Answer 37

Parties are required to identify expert witnesses that will testify at trial and produce their expert reports at least 90 days before trial or 30 days after disclosure of opposing party’s expert on the same subject matter

Question 38

When transfer is made from federal court that was a proper venue, to a federal court in another state, federal court must:

Answer 38

Apply the conflict of laws rules of the transferor court

Question 39

In rem jurisdiction

Answer 39

Forum court generally has personal jurisdiction over a D when the dispute centers on ownership of property (personal or real) in the forum state

Question 40

Venue is proper in judicial district where:

Answer 40

(i) Any D resides in a state where all D reside,
(ii) where substantial part of the events/omissions occurred, or
(iii) where property that is subject of the action is located
* **otherwise, where any D is subject to PJ

Question 41

Motions against the complaint must be made:

Answer 41

within 21 days of service

Question 42

Lack of PJ, insufficient process or service, improper venue can be raised:

Answer 42

In pre-answer motion or answer, or within time to amend answer as of right - otherwise it is waived

Question 43

Generally, federal court applies the choice of law rules from what state?

Answer 43

The forum state

Question 44

May a party voluntarily change state citizenship after the accrual of a cause of action but prior to the commencement of a lawsuit for diversity purposes?

Answer 44

YES

Question 45

Courts should freely give leave to amend when justice so requires, and amendments are:

Answer 45

generally allowed unless the amendment would be futile because it would immediately subject the claim to dismissal or would result in undue prejudice to the opposing party

Question 46

An amendment to the pleading relates back to the date of the original pleading when:

Answer 46

The amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading

Question 47

In a case that is removed from state court, venue its proper:

Answer 47

In the federal district court in the district where the state action was pending

Question 48

A temporary injunction remains in effect:

Answer 48

for the amount of days to be set by the court, but NO LONGER THAN 14 days unless good cause exists or by CONSENT of the adversary

Question 49

An appellate court may address a plain error in jury instructions given by the trial court:

Answer 49

Even if the party has failed to object to the instructions, WHEN the error affects substantial rights

Question 50

If a MSJ is properly made and supported then an opposing party:

Answer 50

May not rely merely on allegations or denials in her own pleading, but she must either set out specific facts showing a genuine dispute for trial or show by affidavit or declaration that, for specified reasons, she cannot present facts essential to oppose the motion

*Cannot repeat general denial!

Question 51

Choice of Law Considerations

Answer 51

In determining whether to apply state or federal law, the district court will start by determining whether there is a conflict.
If the applicable state and federal laws do conflict, then is there a federal statute or rule on point?
If there is NO federal statute or rule on point, consider federal common law (ask whether failure to apply state law will lead to different outcomes in state and federal court)
If YES, then apply state law, unless affirmative countervailing fed interests are at stake that warrant application of federal law

*Federal common law is also to be applied when a “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law

Question 52

Once a party has been fully heard on an issue at trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if:

Answer 52

The court finds that there is insufficient evidence to a jury reasonably to find for that party

• must view in light most favorable to opposing party
• if reasonable persons can draw different inferences, issue is for the jury to decide

Question 53

The Bulge Provision

Answer 53

A federal court has PJ over a third party defendant, joined under Rule 14, who is served within a U.S. judicial district and not more than 100 miles from the court from where the summons is issued, even if state law would otherwise not permit such service

Question 54

When a member of a class who has the option of oping out of the settlement fails to do so:

Answer 54

that member is bound by a settlement agreement approved by the court

Question 55

Under the 7th amendment, if an action involves legal and equitable claims that raise issues of fact common to both:

Answer 55

The jury must be permitted to determine these issues by trying the legal claim first

Question 56

12(b)(6) motion to dismiss can be granted:

Answer 56

if the claim fails to assert a valid legal theory of recovery or fails to allege facts sufficient to support a cognizable claim

• can only consider allegations/attached exhibits in the complaint
• If the court considers other evidence, it should be treated as a MSJ

Question 57

Federal Statutory Interpleader

Answer 57

Diversity is met if any two adverse claimants are citizens of different states and property at issue is $500 or more

Question 58

A shareholder who brings a derivative action on behalf of a corporation must:

Answer 58

have owned stock in the corporation at the time of the wrong

Question 59

MSJ timing

Answer 59

A party may file a MSJ at any time until 30 days after the

Question 60

Voire Dire by Judge

Answer 60

If the court examines the prospective jurors, then it must permit the parties or their attorneys to make any further inquiry it considers proper

Question 61

Who determines the form of verdict the jury returns?

Answer 61

Judge

Question 62

When a motion for new trial is filed, the time for given notice of appeal will run:

Answer 62

From the entry of the order denying the new trial (30 days)

Question 63

Findings of Fact

Answer 63

Cannot be set aside unless clearly erroneous, and due regard must be given to the trial court’s opportunity to judge the cred of the witnesses

Question 64

Diversity for Rule 22 Interpleader

Answer 64

Citizenship of the party bringing the action must be completely diverse from that of the claimants and statutory AIC must be met

Question 65

Joinder of Claims

Answer 65

A party asserting a claim may join even unrelated claims against the opposing party IF the court has subject matter jurisdiction over the new claims

*If OG is federal question, then a non federal claim may be joined only if diversity exists

Question 66

Younger Doctrine (Abstention)

Answer 66

A court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute

Question 67

Pullman Doctrine (Abstention)

Answer 67

Federal court may refrain from ruling on a federal constitutional claim that depends on an unsettled issue of state law best left to the state courts

Question 68

In a diversity case on a state law claim, the federal court may properly use its inherent power to assess attorney’s fees as:

Answer 68

A sanction for D’s bad faith conduct during the litigation, even if the law of the forum state provides that attorney’s fees may not be awarded to the successful party

Question 69

What is considered “substantive”?

Answer 69

Elements of a claim, statutes of limitation, burdens of proof

Question 70

When a proposed class action would bind class members:

Answer 70

The court must approve the proposed settlement after a hearing and on a finding that it is fair, reasonable, and adequate

*A class member who objects to the proposed settlement has the right to appeal the court’s approval of it