Civil Procedure

Question 1

Primary categories of federal subject matter jurisdiction

Answer 1

• (1) Diversity Jurisdiction: Diverse parties involving more than $75,000
• (2) Federal Question Jurisdiction: Involve a claim under federal law
• (3) Supplemental Jurisdiction: No diversity or federal question, but relate to such claims
  
  • Supplemental is discretionary; just because the court has it, doesn’t mean it has to hear the claim.
  • Note: Courts may exercise supplemental jurisdiction for a defendant’s third party claims regardless of citizenship and amount-in-controversy requirements, but if a plaintiff amends their complaint to include a claim against a properly impleaded third party, diversity is destroyed.
• (4) Removal Jurisdiction: Claims originally filed in state court but could have been filed in federal court, D wishes to remove

Question 2

Determining citizenship for individuals, corporations, and partnerships

Answer 2

• Individuals = domicile (physical presence plus intent to remain indefinitely)
• Corporations = state of incorporation and state of principal place of business (corporations can have multiple citizenships)
• Partnerships = citizens of every state and country of which the partners are citizens

Citizenship is determined at the time the complaint is made, it does not change if a defendant subsequently moves.

Question 3

How to determine the amount in controversy

Answer 3

Compensatory and punitive damages may be counted, but pre-judgment costs and interest may not.

A single plaintiff may aggregate all claims against a single defendant or jointly liable defendants. (May not aggregate against multiple defendants when joint liability not alleged).

If an injunction is sought, the amount in controversy is the larger of defendant’s cost of compliance or value to plaintiff.

We accept the plaintiff’s claim unless it is true to a legal certainty that the plaintiff cannot recover the amount claimed (for example, state law places a cap on damages for the type of claim being brought).

The majority approach that federal courts take in determining the amount in controversy is to look at what damages are sought by the plaintiff, as opposed to the value of the consequences that might result from the litigation.

Question 4

When may a defendant remove a case to federal court?

Answer 4

Where case is filed in state court, defendant may remove:

• If federal court has jurisdiction over plaintiff’s claims if filed in federal court. (Federal Question, Diversity, Supplemental)
  
  • Removal is not only dependent upon the amount of the original claim. If claims are added to reach the $75,000, jurisdiction may be granted.
  • A case removable on the basis of diversity jurisdiction may not be removed more than one year after the action was commenced.
    However, if the claim could have been brought in federal court only on diversity, and defendant who seeks removal is a resident of the state where case is being brought, removal is improper. “Home-State Defendant”
  • This rule applies even with multiple defendants where only one defendant is a resident of the state.
• Timing: the defendant must seek removal within 30 days of service of pleading containing removable claim; and all defendants must agree to removal.

Question 5

Federal question jurisdiction

Answer 5

Federal courts have subject matter jurisdiction over all matters arising under federal law.

A claim must contain an essential federal element that appears on the face of the complaint. Federal defenses or claims raised by a defendant cannot be the basis for federal question jurisdiction.

Question 6

Venue requirements

Answer 6

• (1) A judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
• (2) A judicial district in which a substantial part of the events or omissions giving rise to the claim occurred; or
• (3) If neither (1) or (2) applies, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

Question 7

Venue for corporations

Answer 7

• (1) Place of incorporation;
• (2) Principal place of business;
• (3) Place where events occurred;
• (4) Any district where corporation is subject to personal jurisdiction (minimum contacts).

Question 8

Process for determining personal jurisdiction

Answer 8

• (1) We must determine if there is statutory basis for the exercise of jurisdiction over the defendant (state long-arm statute). Then,
• (2) We must determine if the exercise of P/J would comport with the requirements of the due process clause of the 14th Amendment. Our determination as to whether the due process clause is violated is guided by the the minimum contacts test.
  
  • (a) No contacts = no jurisdiction
  • (b) Isolated and sporadic contacts = jurisdiction if claim is related to the contacts, and there is purposeful availment (defendant purposely availed itself of the privilege of acting within the state)
  • (c) Continuous and systematic contacts = general jurisdiction

Question 9

Typical statutory bases for personal jurisdiction

Answer 9

• Voluntary presence of defendant in forum state when served with process (Individuals, not corporations)[Constitutional]
  
  • If in the state for court appearance, not there voluntarily. This does not change if the defendant visited family while there, for example.
• Defendant domiciled in forum state (if corporation, state of incorporation and state that is principal place of business.)[Constitutional]
• Consent/Waiver (forum selection clause/appointment of agent in forum/appear for litigation, drive a car)[Constitutional]
• Long-Arm Statute – Does the statute authorize personal jurisdiction over an out-of-state defendant under the facts of the case?

Question 10

Compulsory counterclaims

Answer 10

If a claim arises from the same transaction or occurrence, it must be joined. If left out, it cannot be the subject of another suit. Compulsory counterclaims do not need independent subject matter jurisdiction.

Question 11

Permissive counterclaims

Answer 11

Claims not arising from the same transaction or occurrence may be joined but do not have to be. However, if the claim does not have subject matter jurisdiction, it cannot be joined.

Question 12

Crossclaim against coparty

Answer 12

A party may only sue another coparty (crossclaim) if the claim arises out of the same transaction or occurrence. If a party has a crossclaim against another party, they may add other unrelated claims they have against that party under Rule 18 (allows a party to join as many claims as he has against an opposing party).

Crossclaims are always permissive.

Question 13

What is impleader and who may may implead? What is the timing for filing the complaint?

Answer 13

A defendant may make a claim against a third party defendant if he feels that the third party is liable to him for some or all of the damages (derivative liability). It must be done by a defending party, and the claim must be against a nonparty. Once the third party is brought in, the party who brought them in can make other, even unrelated, claims against that party under Rule 18 (allows a party to join as many claims as he has against an opposing party).

A defendant has 14 days (absent leave of the court) after it files its answer to file the third-party complaint.

Question 14

Is misjoinder grounds for dismissal?

Answer 14

Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may add or drop a party, and may also sever out any claim against a party.

Question 15

To what matters is a party entitled to discovery of?

Answer 15

A party is entitled to discovery of any matter that is:

• (1) relevant to the claim or a defense of any party;
• (2) not unreasonably cumulative or burdensome; and
• (3) not privileged.

Question 16

What defenses or objections may be made in a pre-answer motion?

Answer 16

Fed. R. Civ. P. 12(b) provides several defenses and objections a party can raise:

• (a) lack of subject-matter jurisdiction,
• (b) lack of personal jurisdiction,
• (c) improper venue,
• (d) insufficiency of process/of service of process,
• (e) failure to join a party, or
• (f) failure to state a claim upon which relief may be granted.

These may also be asserted in a Motion to Dismiss.

Question 17

What must be raised in a responsive pleading?

Answer 17

All affirmative defenses must be asserted in a responsive pleading if one is required, or else the defense will be waived.

Affirmative defenses include: (a) accord and satisfaction; (b) arbitration and award; (c) assumption of risk; (d) contributory negligence; (e) discharge in bankruptcy; (f) duress; (g) estoppel; (h) failure of consideration; (i) fraud; (j) illegality; (k) injury by fellow servant; (l) latches; (m) licenses; (n) payment; (o) release; (p) res judicata; (q) Statute of Frauds; (r) statute of limitations; and (s) waiver.

Question 18

Erie doctrine and change of venue

Answer 18

Federal courts, in diversity actions, must apply substantive state law to the case. However, the federal courts may apply federal procedural law in diversity cases, including rules created by the federal courts in interpreting federal statutes. So, when federal procedural rule conflicts with state law, the federal law will be applied in diversity cases. The following issues are always substantive for Erie purposes:

• (1) statutes of limitations,
• (2) rules for tolling statutes of limitations,
• (3) choice of law rules, and
• (4) elements of a claim or defense.

When a case is transferred solely for convenience (as opposed to being transferred because the original venue is improper), the applicable law “follows” the case to the new venue. The plaintiff is entitled to retain any substantive advantage it gained by bringing the case originally in the correct venue.

Question 19

When may summary judgment be granted? What is the proper timing for a motion?

Answer 19

Summary judgment may be granted 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. The court may not decide disputed fact issues on a motion for summary judgment; if there is a genuinely disputed material fact (meaning a dispute backed by evidence on both sides of the issue), the case must go to trial.

A judge may grant summary judgment even where no party has requested it, so long as there is notice and a reasonable time to respond.

A party may move for summary judgment at any time until 30 days after the close of all discovery.

Question 20

When may a party motion for judgment as a matter of law? What about a renewed motion?

Answer 20

When the evidence presented by a party on an issue is legally insufficient to support a reasonable jury’s finding in favor of that party on the issue.

A party may make a renewed motion for judgment as a matter of law after the jury has rendered a verdict, but only where that party had previously made a motion for judgment as a matter of law at the close of the opponent’s case.

Question 21

Forum non conveniens

Answer 21

When analyzing whether a case should be dismissed under the doctrine of forum non conveniens, a court will balance a number of private and public interests, which generally go to the inconvenience and expense that would be incurred by the parties, the court, and the community in conducting a trial in the forum.

Whether a jury might be biased is not one of the factors generally considered in a forum non conveniens analysis.

Question 22

Claim preclusion (res judicata)

Answer 22

Claim preclusion applies where:

• (1) the second action involves the same parties as the first, or parties that are in privity;
• (2) a court of competent jurisdiction rendered a final judgment on the merits in the first action;
• (3) the same claim or cause of action was involved in both lawsuits; and
• (4) the cause of action in the second suit was or could have been litigated in the first suit.

Note that when the plaintiff loses the earlier case, claim preclusion “bars” further litigation. When the plaintiff wins the earlier case, the different theories “merge” to prevent further litigation. Generally, a claimant is required to assert all causes of action arising out of the same transaction or occurrence that is the subject matter of the claim.

Question 23

Issue preclusion

Answer 23

Issue preclusion applies when:

• (1) the issue that is the subject of the second action is identical to the issue in the first action;
• (2) the issue was actually litigated in the first action and was necessary to the judgment in the first action;
• (3) the previous proceeding resulted in a final determination on the merits; and
• (4) the party against whom preclusion is sought was a party, or was in privity with a party, in the first suit.

Question 24

Who may make service of process?

Answer 24

Service may be properly made by any person who is:

• (1) not a party to the suit and
• (2) over the age of 18 years old.

Question 25

What is the purpose of a Rule 26(f) conference?

Answer 25

At a Rule 26(f) conference, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan.

The parties then must submit a proposed discovery plan to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court.

Question 26

When must a defendant file an answer? What about when service has been waived?

Answer 26

A defendant typically must serve an answer or other appropriate response within 21 days after being formally served with process.

A defendant who waives service of process is allowed 60 days from the date on which the plaintiff mailed the summons and complaint in which to serve a response.

Question 27

When does an amended complaint substituting a new defendant relate back to the original complaint?

Answer 27

An amended complaint relates back to the time of the original complaint if it asserts a claim that arises from the same transaction set forth in the original complaint and, within the time prescribed for service of process, the new defendant received such notice of the action that it will not be prejudiced in defending the merits and either knew or should have known that the action would have been brought against it but for a mistake concerning the proper party’s identity.

Question 28

When may a temporary restraining order be granted? Is notice to the adverse party required?

Answer 28

A temporary restraining order (TRO) may be 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. As a general rule, notice of the hearing for the issuance of the order must be given before it is issued. However, a court may grant an ex parte TRO without notice to the adverse party if the moving party does the following:

• (1) gives specific facts to establish that immediate and irreparable injury will result before the adverse party can be heard;
• (2) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and
• (3) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained.

Question 29

When may two plaintiffs assert a single cause of action?

Answer 29

Parties may permissively join as plaintiffs (or be joined as defendants) whenever:

• (1) some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and
• (2) there is a question of fact or law common to all the parties.

A second plaintiff may also use supplemental jurisdiction to join their claim against a defendant if it does not meet the amount in controversy required for diversity jurisdiction.

Question 30

Work product doctrine & qualified v. absolute work product

Answer 30

Work product or “trial preparation material” is prepared in anticipation of litigation and is protected. In federal court, work product need not be generated by a lawyer. It can be prepared by the party herself or by any representative of a party (for example, a private investigator).

Confidential communications between experts and counsel are also generally protected under the work product doctrine, except for communications relating to the expert’s compensation or to facts or data the attorney provided to the expert.

Work product may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternate way. This is called “qualified” work product. Absolute work product, such as mental impressions, conclusions, opinions, or legal theories cannot be discovered.

Question 31

When happens if a party fails to comply with a discovery request? What are the requirements for a motion to compel discovery? Can sanctions be imposed?

Answer 31

If a party fails to provide discovery or provides incomplete discovery, including disclosures and answers to interrogatories and deposition questions, the other party may move to compel discovery. However, a motion to compel must certify that the moving party has made a good faith attempt to confer with the opponent to obtain the discovery without court intervention. The certification (and an actual attempt at resolving the discovery dispute without court intervention) is a prerequisite to an award of reasonable expenses, which includes attorneys’ fees.

Sanctions generally may be imposed only for violating a court order on discovery.

Question 32

When may deposition testimony be used at trial? Can errors contained in a deposition be admitted?

Answer 32

A deposition may be used against any party who was present at the deposition or had notice of it:

• (a) to impeach the testimony of the deponent as a witness;
• (b) for any purpose if the court finds that the deponent (including a party-deponent) is dead, at a distance greater than 100 miles from the place of trial (unless the absence was procured by the party offering the deposition), or unable to testify because of age, sickness, etc.; or
• (c) for any purpose if the deponent is an adverse party.

Errors of any kind which could have been obviated if promptly presented are waived unless seasonable objection is made at the time of taking the deposition (this applies to form of questions, oath, conduct of parties, etc.).

Question 33

When may a plaintiff voluntarily dismiss an action? Is it with prejudice?

Answer 33

If the defendant has not answered or filed a motion for summary judgment, the plaintiff may dismiss her case by filing a notice of dismissal. When a voluntary dismissal without leave of court is not available (i.e., there has been an answer, motion, or previous dismissal), the court has discretion to grant dismissal on such terms and conditions as the court deems proper.

The dismissal is without prejudice unless the court specifies otherwise.

If there is a counterclaim pending in the action, there can be no dismissal over the defendant’s objection unless the counterclaim remains pending.

Question 34

Rules for entry of default & default judgment

Answer 34

A default and default judgment might occur when the defendant does not respond to the complaint in time (21 days after being served with process). The plaintiff must move for entry of default, and must demonstrate that the defendant failed to respond in time. Until a default is actually entered, the defendant can respond by motion or answer even beyond 21 days. The entry of default cuts off the defendant’s right to contest liability. Entry of default, however, does not automatically entitle the plaintiff to relief. The plaintiff must seek a default judgment. The clerk may enter a default judgment if:

• (1) the defendant has made no response (has not appeared);
• (2) the claim is for a sum certain in money;
• (3) the plaintiff gives an affidavit for the sum owed; and
• (4) the defendant is not a minor or incompetent.

Otherwise, the plaintiff must apply for the judge to enter a default judgment.

Question 35

May a third party defendant bring claims against the original plaintiff?

Answer 35

Yes, a third party defendant may assert a claim against the plaintiff if the claim arises out of the same transaction or occurrence as the plaintiff’s original claim. This claim is permissive and can be brought in a separate action.

Question 36

Are the names of individuals who may have relevant information to the case discoverable? Is a request required?

Answer 36

Without waiting for a discovery request, as an initial disclosure, a party must provide the names of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses (unless solely for impeachment).

Question 37

When may a third party intervene as a matter of right?

Answer 37

A nonparty may intervene in an action as a matter of right in two situations.

First, a nonparty may intervene when it has an unconditional right to do so by a federal statute.

Second, a nonparty may intervene if:

• (i) it has an interest in the property or transaction that is the subject matter of the action;
• (ii) the disposition or resolution of the action may as a practical matter impair the nonparty’s ability to protect its interest; and
• (iii) the nonparty’s interest is not adequately protected by an existing party in the action.

Question 38

What is the procedure for removing a case to federal court? What steps does the defendant need to take?

Answer 38

The removal statute provides that the notice of removal should be filed in the federal district court that geographically encompasses the state court where the action was filed.

A copy must be served on the plaintiff, and another copy should be filed in the state court from which the action is being removed.

Question 39

When should a court grant a motion to dismiss for failure to state a claim? How much detail is required in a complaint?

Answer 39

The federal pleading rules generally require the pleader to assert short and plain statements in the complaint to put the other side on notice of the claim being asserted; detailed assertions of facts underlying the claim are generally not required.

However, there are certain special pleading rules that require a party to state more detail under special circumstances, including claims that assert fraud or mistake. Under such special circumstances the federal rules specifically require that a plaintiff assert the claim for relief with particularity.

Question 40

When may a court grant a relief from judgment? What are the time restrictions for filing the motion?

Answer 40

A court may relieve a party from a final judgment or order based on fraud, misrepresentation, or other misconduct of an adverse party, and such a motion must be made within a reasonable time not to exceed one year.

There is no time limit if the motion is based on a clerical mistake; it does not even need to be made within a reasonable time, it may be at any time.

Question 41

When is there subject matter jurisdiction for an interpleader claim?

Answer 41

Under the Federal Interpleader Act, interpleader can be brought if any two claimants are citizens of different states and the amount in controversy is $500 or more. Complete diversity is not required.

Question 42

Where is venue proper in cases that have been removed to federal court?

Answer 42

When a case has been removed from state to federal court, venue is set in the federal district court that embraces the state court in which the action was pending. The court will not consider the normal venue rules, such as the residence of the defendant and where the acts or omissions giving rise to the action took place.