Civil Procedure

Question 1

Under Rule 11(a):

Answer 1

every pleading, written motion, and other paper filed with the court must be SIGNED by at least one attorney of record, or by a party personally if unrepresented

Question 2

Under Rule 11(b):

Answer 2

By presenting to the court a pleading, written motion, or other paper, the signing attorney or unrepresented party CERTIFIES that to the best of her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances (i) the paper is NOT being presented for any IMPROPRER purpose, (ii) the claims, defenses, and other legal contentions are warranted by existing law or by NONFRIVOLOUS argument for extending, modifying, or reversing existing law or for establishing new law, (iii) the factual contentions have EVIDENTIARY SUPPORT or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery, and (iv) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief of a lack of information

Question 3

A motion for sanctions must be made:

Answer 3

(i) separately from any other motion,
(ii) must describe the specific conduct alleged to violate Rule 11, and
(iii) must be served on the opposing party

The opposing party must then be given 21 days to withdraw or or correct the challenged pleading

Question 4

Sanctions for Rule 11 violations are limited to:

Answer 4

What will deter the misconduct in the future

Question 5

Sanctions may include:

Answer 5

nonmonetary directives or an order to pay a penalty into court

Question 6

If sanctions are imposed:

Answer 6

An order directing payment to the movant for reasonable attorney’s fees and other expenses directly resulting from the violation may be appropriate

Question 7

A law firm must be held jointly responsible for a violation committed by:

Answer 7

its partner, associate, or employee

Question 8

The court is not permitted to impose a monetary sanction against a represented party for:

Answer 8

violating the requirement that the legal contentions of the paper be warranted by existing law or by nonfrivolous argument

Question 9

Discovery is generally permitted with regard to:

Answer 9

any non-privileged matter relevant to any party’s claim or defense; information within the scope of discovery need not be admissible

*the test is whether the information sought is relevant to any party’s claim or defense

Question 10

A party may not discover documents or tangible things prepared in anticipation of litigation unless:

Answer 10

the requesting party shows that it has SUBSTANTIAL NEED for the materials to prepare its case and cannot, without UNDUE HARDSHIP, obtain their substantial equivalent by other means

Question 11

A party may be subject to sanctions for failing to take reasonable steps to preserve ESI:

Answer 11

that should have been preserved in the anticipation of litigation

Question 12

Sanctions for failure to preserve ESI that should have been preserved:

Answer 12

The court may (1) upon finding prejudice to another party, order measures no greater than necessary to cure the prejudice, or (2) upon a finding that the party acted with the intent to deprive, may presume the lost information was unfavorable to the party, instruct the jury that it may or must presume the evidence was unfavorable, or dismiss the action and enter default judgment

Question 13

Generally, defendant in any civil action filed in state court has the right to remove it to district court for the district in which the state court action was filed:

Answer 13

as long as the civil action is within the original jurisdiction of a U.S. district court (diversity or federal question)

Question 14

Venue is proper where:

Answer 14

In any district in which any defendant resides OR in a district in which a substantial part of the events or omissions took place

Question 15

Transfer sought on the basis of a forum selection clause in a K:

Answer 15

is accorded respect

Question 16

Contract clause specifying a federal forum is:

Answer 16

prima facie valid, only to be set aside upon a strong showing that the:

(1) transfer would be unreasonable and unjust, or
(2) clause was invalid for reasons such as fraud or overreaching

Question 17

If the venue is transferred when original venue is proper:

Answer 17

the court in which the action is transferred must apply the law of the state of the transferor court, including the state’s conflict of laws rules

Question 18

When venue is transferred based on a valid forum selection clause:

Answer 18

the transferee court must apply law of the forum state, including its choice of law rules

Question 19

Doctrine of claim preclusion (res judicata) provides that:

Answer 19

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

(1) same parties or their privies

Question 20

Doctrine of issue preclusion (collateral estoppel) precludes:

Answer 20

the re-litigation of issues of fact or law that have already been necessarily determined by a judge or jury as a part of an earlier claim

*Applies when the party against whom the issue is to be precluded was a party to the OG action

Question 21

A U.S. District Court has diversity jurisdiction over a matter if:

Answer 21

no plaintiff shares the state of citizenship of any defendant and the amount in controversy exceeds 75K

Question 22

The defense of subject matter jurisdiction:

Answer 22

Is not waivable

Question 23

Pursuant to CAFA, when a class action claims AIC in excess of $5 million,

Answer 23

only MINIMAL DIVERSITY is required (diversity will be met if any member of the plaintiff class is diverse with any defendant)

Question 24

In general, what satisfies the amount in controversy requirement?

Answer 24

Plaintiff’s good faith assertion in the complaint that the action satisfies the amount in controversy requirement

Question 25

Class actions can be maintained in federal court despite:

Answer 25

a state law barring class actions to enforce statutory damage claims, IF the action meets the four rule 23 requirements (numerosity, commonality, typicality, and adequacy)

Question 26

Standing requirements:

Answer 26

(i) injury in fact (concrete and actual or imminent;
(ii) the injury was fairly traceable to the challenged action (causation); and
(iii) the relief request must prevent or redress the injury

Question 27

Under the Erie Doctrine, a federal court sitting in diversity will:

Answer 27

Apply state substantive law and federal procedural law

Choice of law rules are substantive, thus the choice of law rules of the forum apply

Question 28

Failure to raise certain Rule 12 motions:

Answer 28

whether in an answer, or pre answer motion, constitutes waiver of those defenses

• Included among waivable defenses are improper venue, insufficient process, insuficient service of process, and lack of PJ

Question 29

Defendants have a right to amend their pleadings:

Answer 29

Within 21 days of their answer, and in doing so, they may include a waivable defense

*Cannot do so, however, if D’s first response is a Rule 12 motion that fails to include the defense

Question 30

Service of Process when jurisdiction has identical procedural rules to the FRCP

Answer 30

(1) D may be served personally,
(2) by rules permitted by the state in which the court sits or where process is served,
(3) by serving the defendant’s agent, or
(4) by leaving service at D’s abode with a person of suitable age and discretion who lives there

Question 31

Intervention as a Right

Answer 31

A nonparty has the right to intervene in an action when, upon timely motion:

(1) the nonparty has an interest in the subject matter of the action,
(2) the disposition of the action may impair the nonparty’s interests, and
(3) the nonparty’s interest is not adequately represented by existing parties

Question 32

A TRO does what?

Answer 32

Preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction.

Immediately effective and lasts no longer than 14 days, unless good cause exists

Question 33

A TRO can be issued without notice to an adverse party if:

Answer 33

The moving party can show:

(1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and
(2) the efforts made at giving notice and the reason why notice should not be required

Question 34

A party seeking a preliminary injunction must establish that:

Answer 34

(i) the party is likely to succeed on the merits;
(2) the party is likely to suffer irreparable harm in absence of relief;
(3) the balance of equities is in his favor; and
(4) the injunction is in the best interest of the public

Question 35

Subject matter is a court’s competence:

Answer 35

to hear and determine cases of the general class and subject to which the proceedings in question belong

Question 36

Diversity jurisdiction

Answer 36

The amount in controversy must exceed $75,000 and each plaintiff must be a citizen of a different state than each defendant

Question 37

Citizenship of a state

Answer 37

Must be a citizen of the United States and a domiciliary of the state

Question 38

Domicile

Answer 38

State in which one is present and intends to reside for an indefinite period.

Corporation: state of incorporation and principal place of business (HQ)

Question 39

Personal Jurisdiction

Answer 39

A court’s ability to exercise judicial power over the persons and property involved in the cases or controversies before it.

A federal court will generally look to the forum state jurisdictional statutes

Question 40

The Due Process Clause permits a court to exercise PJ over a D if:

Answer 40

The defendant has minimum contacts with the forum state such that the maintenance of the action does not offend traditional notices of fair play and substantial justice

Contacts must be purposeful and substantial, such that D should reasonably foresee being taken to court there.

Question 41

Specific Personal Jurisdiction

Answer 41

For specific personal jurisdiction to exist, there must be an affiliation between the forum and the underlying controversy, activity or an occurrence that takes place in the forum state and is therefore subject to the state’s regulation

Question 42

General Personal Jurisdiction

Answer 42

Whether a corporation’s affiliations with the forum state are so continuous and systematic as to render the corporation essentially at home in the forum state