Civil Procedure

Question 1

When are two claims considered related for purposes of supplemental jurisdiction?

Answer 1

They arise out of a common nucleus of operative fact

Question 2

What are the 4 requirements for a class action?

Answer 2

(1) Numerosty: joinder of all members is impracticable
(2) Commonality: common question(s) of law or fact
(3) Claims/defenses of representative(s) must be typical of the class
(4) Representatives must fairly and adequately protect the interests of the class

Question 3

What’s the due process requirement for in personam jurisdiction?

Answer 3

Sufficient minimum contacts w/forum state such that maintenance of the action doesn’t offend traditional notions of fair play and substantial justice

Question 4

Generally, where is proper venue?

Answer 4

(1) If all [Ds] reside in same state: judicial district in which any [D] resides
(2) Judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred; where a “substantial part of the property” that is the subject of the actions is located

Question 5

Under the Erie Doctrine, what law governs in a diversity action?

Answer 5

Substantive law of the state in which the district court is located, if there’s no federal law on point. District court will apply federal procedural law, even if a state rule or statute is in conflict.

Question 6

What are the requirements for a [P] seeking a preliminary injunction?

Answer 6

(1) They’re likely to succeed on the merits
(2) They’re likely to suffer irreparable harm in the absence of relief
(3) The balance of equities is in their favor
(4) The injunction is in the best interests of the public

Question 7

What’re the required elements for a complaint under Rule 8(a)?

Answer 7

(1) Short and plain statement of the grounds that establish the court’s SMJ
(2) Short and plain statement of the claim establishing entitlement to relief
(3) Demand for judgment for the relief sought by the pleader

Question 8

What’s federal question jurisdiction under 28 U.S.C. 1331?

Answer 8

District courts have original jurisdiction over all actions arising under the Constitution, laws, or treaties of the USA.

Question 9

Per Rule 15(a), when can a party amend a pleading?

Answer 9

(1) Once as of right w/in 21 days if no responsive pleading is required
(2) If responsive pleading is required: w/in 21 days of service of the responsive pleading or of being served w/a Rule 12(b) motion, whichever is earlier

Courts should freely give leave to amend a pleading when justice requires.

Question 10

Under Rule 20(a)(1), when may a [P] join as a permissive joinder?

Answer 10

(1) They assert any right to relief jointly, severally, or in the alternative w/respect to or arising out of the same T/O
(2) Any question of law or fact common to all [Ps] will arise in the action

Note: same circumstances apply to permissive joinder of [Ds] under Rule 20

Question 11

Under Rule 20 permissive joinder, does the [P] to be joined have to meet the requirements of federal SMJ?

Answer 11

No, so long as the parties still meet the requirements of complete diversity

Question 12

When must an objection to improper venue be raised?

Answer 12

Pre-answer MTD under Rule 12(b)(3) or in first responsive pleading, if a Rule 12(b)(3) motion is not filed

Question 13

What’re the 5 bases for in personam jurisdiction?

Answer 13

(1) Voluntary presence
(2) Domicile
(3) Consent
(4) Long-arm statute
(5) Attachment

Question 14

What’s a compulsory counterclaim?

Answer 14

Pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if:

(1) Claim arises out of same T/O that’s the subject matter of the opposing party’s claims
(2) Claim does not require adding another party over whom the court cannot acquire jurisdiction

Note: failure to assert the counterclaim waives the right to sue on it

Question 15

What’re the 3 types of personal jurisdiction?

Answer 15

In personam
In rem
Quasi-in-rem

Question 16

What’re the 3 types of class actions?

Answer 16

(1) Risk of prejudice: prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or if prosecution of the claims through separate actions would impair the interests of the class members.
(2) Final equitable relief: class seeks final injunctive or declarative relief + shares general claim against opposing party
(3) Common legal or factual questions: common questions of law or fact predominate over any questions affecting individual members + class action is superior method for bringing about fair and efficient adjudication of the controversy

Question 17

When a class action is brought under a common legal or factual question, what 7 pieces of information must be stated in the notice provided to the members?

Answer 17

(1) Nature of the action
(2) Definition of the class
(3) Class claims, issues, or defenses
(4) That a class member may enter an appearance via an attorney if the member so desires
(5) That the court will exclude from the class any member who requests exclusion
(6) Time and manner for requesting exclusion
(7) Binding effect of class judgment on members

Question 18

What’re the 3 types of mandatory disclosures?

Answer 18

Rule 26(a) requires the parties to make:

(1) initial disclosures
(2) disclosures of expert testimony 90 days before trial
(3) pretrial disclosures 30 days before trial

Question 19

In assessing whether a case can be filed in federal court, when is diversity determined?

Answer 19

At the time the case is filed

Question 20

How does a party make a demand for a trial by jury?

Answer 20

Written demand served w/in 14 days after service of the last pleading directed to the issue that’s sought to be trued by a jury, and filed w/in a reasonable time after service.

Question 21

Per Rule 33(a), how many interrogatories may a party serve on another party?

Answer 21

25

Question 22

How long may a temporary restraining order remain in effect?

Answer 22

No longer than 14 days, unless good cause exists or the adversary consents

Question 23

How much time does a party have to respond to interrogatories?

Answer 23

30 days after being served

Question 24

What 3 factors will a court consider when deciding to set aside a default judgment?

Answer 24

(1) Whether the [D]’s failure to act was willful
(2) Whether setting the default aside would prejudice the [P]
(3) Whether the [D] has presented a meritorious claim

Question 25

Under Rule 12, how long does a [D] have to respond to a complaint?

Answer 25

W/in 21 days of service of process

Question 26

Who’s responsible for serving the summons and complaint and when must it be served?

Answer 26

[P] must serve w/in 90 days after filing the complaint

Question 27

How many peremptory challenges and challenges for caused does a party have?

Answer 27

3 peremptory challenges; unlimited for cause challenges

Question 28

What’s the rule for removal when there’re multiple [Ds]?

Answer 28

All properly joined/served [Ds] must consent to removal. If served at different times, a later-[D] can file for removal w/option for earlier [Ds] to join in w/o prior consent.

Note: for federal question jurisdiction, only [Ds] against whom the federal claim is asserted must join in or consent to removal.

Question 29

What 7 defenses may be raised in a motion filed under Rule 12(b)?

Answer 29

(1) Lack of SMJ
(2) Lack of PJ
(3) Improper venue
(4) Insufficient process
(5) Insufficient service of process
(6) Failure to state a claim upon which relief can be granted
(7) Failure to join a necessary or indispensable party under Rule 19

Question 30

Who has the burden of proof in a claim for summary judgment?

Answer 30

Movant must make prima facie showing that summary judgment is appropriate. The opposing party must then set forth specific evidence showing the existence of a genuine issue of fact for trial.

Question 31

Under Rule 12(h)(1), which defenses are waived unless raised in the pre-answer motion or answer?

Answer 31

Lack of PJ, improper venue, insufficient process, insufficient service of process

Question 32

Under 12(b)(6), what’s the standard used in deciding a MTD for failure to state a claim upon which relief can be granted?

Answer 32

(1) MTD must assert legal theory of recovery that’s cognizable at law
(2) MTD must allege facts sufficient to support a cognizable claim

Well-pleaded facts are treated as true and all doubts/inferences are resolved in [P]’s favor. The pleading is viewed in the light most favorable to [P].

Question 33

What’s removal jurisdiction and who generally has the right to remove?

Answer 33

Any civil action commenced in a state court that’s w/in original jurisdiction of a district court may generally be removed to the district court for the district and division in which the state court action is pending.

Generally, the right of removal is a right of the [D].

Question 34

Under Rule 50(a), what’s a judgment as a matter of law, and what’s the standard used in deciding these motions?

Answer 34

Once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if the court finds that there’s insufficient evidence for a jury reasonably to find for that party.

The court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party.

Question 35

When may a party bring a motion for judgment as a matter of law?

Answer 35

Any time before the case is submitted to the jury.

If a party moves for a judgment as a matter of law after the close of the plaintiff’s case and the motion is denied, then the party may be unable to pursue a renewed motion for judgment as a matter of law after entry of judgment unless the party also moves for judgment as a matter of law after the presentation of all evidence.

Question 36

What are six grounds for a court to grant a motion for a new trial?

Answer 36

(1) Error at trial that renders the judgment unfair
(2) Newly discovered evidence that existed at the time of the trial was excusably overlooked and would likely have altered the outcome of the trial
(3) Prejudicial misconduct of counsel, a party, the judge, or a juror
(4) Verdict that’s against the clear weight of the evidence
(5) Verdict that’s based on false evidence
(6) Verdict that’s excessive or inadequate

Note: Rule 59 doesn’t specifically list the grounds that will justify a new trial, but in practice, the overarching theme is that the court may grant a new trial to prevent a miscarriage of justice.

Question 37

What’re the 2 ways in which a [D] can consent to in personam jurisdiction?

Answer 37

(1) Express consent

(2) Implied consent

Question 38

What’re the requirements of claim preclusion?

Answer 38

(1) Valid final judgment on the merits
(2) Sufficiently identical causes of action
(3) Sufficiently identical parties

Question 39

Federal courts of appeals have jurisdiction over appeals of what types of judgments?

Answer 39

District courts

Question 40

For the purposes of diversity jurisdiction, how is a corporation’s citizenship determined?

Answer 40

(1) State and/or foreign country of incorporation

(2) State and/or foreign country where it has its principal place of business

Question 41

What is the “well-pleaded complaint rule?”

Answer 41

Determination of federal question jurisdiction is made by considering only the necessary elements of the plaintiff’s cause of action, not anticipated defenses, answers, or counterclaims.

This rule applies both to original jurisdiction of the federal court and to removal jurisdiction.

Question 42

Where is an individual’s domicile and how is the domicile changed?

Answer 42

Physical presence + intent to remain permanently

Question 43

Discuss aggregation of claims for amount-in-controversy purposes.

Answer 43

When aggregating claims by a single plaintiff against a single defendant, if the action involves only one plaintiff and one defendant, then the total value of the plaintiff’s diversity claims is calculated to determine the amount in controversy

Question 44

When and how is the amount in controversy determined for diversity jurisdiction purposes?

Answer 44

The amount in controversy must exceed $75,000, exclusive of interest, costs, and collateral effects of a judgment. The amount in controversy is determined at the time the action is commenced in federal court, or, if the action has been removed to federal court, at the time of the removal.

Note: Attorney’s fees may be included in the calculation if recoverable by contract or statute, and punitive damages may possibly be included as well.

Question 45

How is a corporation’s “principal place of business” determined?

Answer 45

“Principal place of business” refers to the “nerve center” of the corporation. The nerve center is generally the location from which the high-level officers direct, control, and coordinate the activities of the corporation. Typically, the nerve center is the corporate headquarters.

Question 46

What is the purpose of a long-arm statute?

Answer 46

A long-arm statute authorizes personal jurisdiction over nonresidents who engage in some activity in the state or cause some action to occur within the state. A long-arm statute either directly authorizes or has been interpreted as authorizing jurisdiction to the extent permissible under the Due Process Clause.

Question 47

When the relief sought is an injunction, how is the amount in controversy determined for jurisdiction purposes?

Answer 47

In the case of injunctive relief, when it is difficult to assess a dollar amount, the court determines both the value of the plaintiff’s harm if an injunction is not imposed and the defendant’s cost of complying with an injunction. If the amount of either exceeds $75,000, then the amount-in-controversy requirement is satisfied.

Question 48

May a single plaintiff aggregate claims against multiple defendants to satisfy the amount-in-controversy requirement?

Answer 48

When a single plaintiff sues multiple defendants, the value of the plaintiff’s claims against each defendant may not be aggregated if the claims are separate and distinct.

If the defendants are jointly liable to the plaintiff, then aggregation to meet the amount-in-controversy requirement is permissible.

Question 49

When a case is removable from the outset, how does a defendant begin the process for removal?

Answer 49

A defendant who wants to remove a state court action to federal district court generally must file a notice of removal with the district court within 30 days after receipt or service of the initial pleading or summons.

Question 50

Typically, if a defendant is voluntarily present in the forum state and served with process there, then the court has personal jurisdiction over the defendant.

What are two exceptions?

Answer 50

(1) If a plaintiff fraudulently brings a defendant into the state for the purpose of serving process on the defendant
(2) If a defendant is merely passing through the state to attend other judiciary proceedings

Question 51

When must a party be joined as a compulsory joinder under Rule 19?

Answer 51

Under Rule 19(a), a person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction or destroy venue must be joined as a party if:

(i) Complete relief cannot be provided to existing parties in the absence of that person;
(ii) Disposition in the absence of that person may impair the person’s ability to protect his interest; or
(iii) The absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations.

Question 52

When is notice not required for a temporary restraining order?

Answer 52

A temporary restraining order may issue without notice to the adverse party if:

(i) The moving party can establish, under written oath, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition; and
(ii) The movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.

Question 53

How does remand differ from removal?

Answer 53

Removal is from state to federal court, and by a defendant, usually within a specified time frame, and with the agreement of all defendants.

Remand happens from federal to state court. It does not require consent or timeliness.

Question 54

Diverse citizenship does not exist when a suit involves _____

Answer 54

Stateless persons:

(1) Noncitizens present in the US but not citizens of a foreign country
(2) US citizens domiciled in a foreign country