Civil Procedure

Question 1

Federal Question Jurisdiction

Answer 1

• Federal-question jurisdiction: It must arise out of federal law. The federal issue must be on the face of the well-plead complaint.
A federal defense is not sufficient

Question 2

Diversity Jurisdiction

Answer 2

• Diversity jurisdiction: there must be complete diversity at the time the case is filed and the amount in controversy must exceed $75,000.
For Diversity of Citizenship:
• Individuals—domiciled where they are present with intent to remain indefinitely
• Corporations—domiciled where incorporated AND where the principal place of
business is located
For Amount In controversy
 Must exceed $75,000, plead of the complaint
 Injunctive relief—can have monetary value assigned
 Multiple Defendants—can aggregate dollar amounts if jointly liable

Question 3

Supplemental Jurisdiction General

Answer 3

• Supplemental jurisdiction: State claims may be brought in a federal case if they arise out of a common nucleus of operative fact. Further, nondiverse parties may be sued in a diversity case.

Tip: in a diversity case, a defendant may implead a nondiverse party, but a plaintiff may not sue a nondiverse party directly if the only basis for the lawsuit is diversity

Question 4

Supplemental Jurisdiction for Federal Question Jurisdiction, who and what claims can be brought under it

Answer 4

1) Plaintiff can bring state law claims that are related to the federal claim
2) An additional plaintiff can bring a state law claim against the defendant if related to the original plaintiff’s federal claim
3) A defendant can bring a cross-claim against another defendant so long as the claim is
related to the original plaintiff’s federal claim

Question 5

Supplemental Jurisdiction for Diversity Jurisdiction, what claims can be brought and by who

Answer 5

1) Plaintiff can bring any state law claim related to the basis of the original claim
2) An additional plaintiff can bring a related state law claim against the defendant so long
as the plaintiff does not destroy diversity
3) A defendant can bring a cross-claim against another defendant so long as it is related to
the original claim

Tip: in a diversity case, a defendant may implead a nondiverse party, but a plaintiff may not sue a nondiverse party directly if the only basis for the lawsuit is diversity

Question 6

What is General Jurisdiction?

Answer 6

• General jurisdiction: Plaintiff can sue defendant for anything generally. Look for consent (express or implied due to failure to properly object), presence (continuous and systematic contacts with the state or present in state when served), or domicile.

Question 7

Domicile determination For natural person’s, corporations, and LLC’s

Answer 7

> > A person is domiciled in the state that is her permanent home where she intends to stay indefinitely.
A corporation is domiciled in the state where it is incorporated and where its principal place of business is located.
A partnership or LLC is domiciled where its partners or members are citizens.

Question 8

When can a court reject Supplemental Jurisdiction?

Answer 8

Courts have discretion to reject supplemental jurisdiction if:

a) The claims are complex or predominate the lawsuit;
b) The federal law claims are dismissed; or
c) There are any other compelling reasons to decline jurisdiction

Question 9

Removal, and the additional factors the courts consider when applying removal

Answer 9

When the Plaintiff files in state court and a defendant seeks to remove to federal court.

Defendant may remove so long as the federal court can exercise SMJ over the case

Additional removal factors:
 Diversity Jurisdiction—no defendants can be citizens of the state in which the claim was originally filed;
 Motion for removal must be filed within 30 days of receiving the complaint(or bv;
 All defendants must join in or consent to removal

A defendant may remove a case within 30 days of being on notice that the case is removable (but not over a year in diversity cases unless plaintiff acted in bad faith

Defendants cannot remove on diversity grounds if any defendant is domiciled in the state in which they are sued

Tip: When a defendant removes a case, do not look to traditional venue rules to determine venue. A defendant has only one venue option—it may remove the action to the federal court that geographically embraces the state court where the suit was filed

Question 10

Remand

Answer 10

Remand: if a plaintiff wishes to file a motion to remand to state court due to failure to comply with procedure requirements of the rule, it must do so within 30 days after remova

Question 11

Long Arm statues that exercise Personal Jurisdiction to the extent allowed by the Constitution (Rule Statement General)

Answer 11

Due process requirements satisfied if:

1) the nonresident defendant has sufficient minimum contacts with the forum state
2) such that assertion of jurisdiction would comport with notion of fair play and substantial justice.

Question 12

Minimum Contacts Test for Long-Arm Statute

Answer 12

a) Purposeful availment (reasonably foreseeable to be sued in the state)
b) Relatedness (defendant’s conduct in relation to the action)
i) Specific Jurisdiction (action arises out of the defendant’s conduct)
ii) General Jurisdiction (defendant is essentially “at home” in jurisdiction)
(a) Corporation is “at home” where incorporated and where its principal place of business is located

Question 13

Fairness analysis for Long-Arm Minimum Contracts Due Process Test

Answer 13

Fairness (Fair play and substantial justice)

• Interest of the forum state in adjudicating the matter;
• Burden on the defendant of appearing in the case;
• Interest of the judicial system in efficient resolution; and
• Shared interests of the states in promoting common social policies

Question 14

Proper Venue

Answer 14

Venue is proper where:
* any defendant resides if all defendants reside in the same state
OR
* where a substantial part of the events or omissions giving rise to the claim occurred
OR
* If neither of the above apply, venue is proper in a judicial district where any defendant is
subject to PJ (Rarely used/done)

Question 15

Transfer Venue when proper?

Answer 15

A court may transfer a case to a different venue in certain circumstances:

> > Transfer to proper venue: Occurs if the case is filed in the wrong venue. The law of the transferee court applies. (So the new court)

> > Transfer to more appropriate forum: Occurs when there is a more convenient forum for the case. The federal court may transfer it in the interests of justice. The law of the transferor court applies. (Old Court)

> > Forum non conveniens: if a case should be litigated in a different forum (e.g., a different country) a court may dismiss the case.

Question 16

Erie Doctrine, what laws apply for federal question and diversity cases?

Answer 16

Federal Question Jurisdiction:
*Federal substantive and procedural law will control.

Diversity Jurisdiction:
*Court applies state substantive law and federal procedural law

Question 17

Erie Doctrine the test for substantive state vs procedural law

Answer 17

 A state law that alters the calculation of damages is a substantive law under Erie
 A state law regarding a statute of limitations is substantive under Erie
 State laws that create evidentiary privileges are substantive under Erie

Tip: this includes which party has the burden
of proof, which statute of limitations applies, caps on damages, elements of claims, and
choice of law rules.

Question 18

Temporary Restraining Order (TRO) Elements , and timing

Answer 18

o Party seeks to maintain the status quo prior to a hearing for a preliminary injunction

This is a stopgap measure that should not last longer than 14 days unless good cause is shown.

o Must show:
1) Immediate and irreparable injury would occur absent the TRO; and

2) An effort was made to give notice to the opposing side (or the reason notice should not be required)
(For a temporary restraining order, notice to the other party is not needed.)
o Court may grant TRO without the opposing party present

Question 19

Preliminary injunction, elements

Answer 19

For a preliminary injunction, notice must be given to the adverse party.

A preliminary injunction is equitable relief with the object of preserving the status quo.

o Requires notice to the opposing party and a hearing

o Plaintiff must show:

1) Likely to succeed on the merits;
2) Likely to suffer irreparable harm in absence of injunction;
3) Balancing the equities favors granting; and
4) Injunction is in the best interests of the publi

Question 20

Service of Process, how to do it? (4)

Answer 20

Rule 4 (Rules governing this are procedural, not substantive)

Plaintiff must serve defendant with a summons and copy of the complaint. The process server must be at least 18 years old and not a party to the case. A plaintiff can use the following (SAID) methods to serve an individual:

> > state law: follow the state law methods where the federal court is located or where service is made,
agent: deliver a copy of the summons and complaint to an agent appointed by defendant or law,
individual: deliver a copy of the summons and complaint to the individual personally, or
dwelling: leave a copy of the summons and complaint at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.

Question 21

Serving a corporation

Answer 21

*to serve a corporation, a plaintiff may use the state law methods where the district court is located or where service is made,
or
*it may serve an officer, a managing or general
agent authorized, or any other agent appointed to receive service.

Question 22

How to Waive Service of process

Answer 22

A plaintiff may ask a defendant to waive formal service of process by:

• sending the complaint,
• two copies of a waiver form,
• and a prepaid means for returning the form via first-class mail or other reliable means.

If defendant waives formal service, it has 60 days to answer the complaint (rather than 21).

If defendant does not, it must pay for formal service of process.

Question 23

Rule 12 motions list (just list no elements etc)

Answer 23

i) Lack of subject matter jurisdiction;
ii) Lack of personal jurisdiction;
iii) Improper venue;
iv) Insufficient process;
v) Insufficient service of process;
vi) Failure to state a claim upon which relief can be granted; and
vii) Failure to join a necessary or indispensable party under Rule 19. (Compulsory Joinder)

Question 24

Timing of (some) 12(b) motions

Answer 24

 Lack of SMJ—can be raised at any time, even on appeal
 Lack of PJ, improper venue, and insufficient process—must be raised at the first
opportunity (the first pre-answer motion or, if none, the answer)
• Failure to raise these defenses in a timely manner will waive the defense
 Failure to state a claim or failure to join a necessary party under Rule 19—may be raised
in any pleading, in a motion for judgment on the pleadings, or at trial.

Question 25

Amending Pleading and adding new claim/defendant elements

Answer 25

o Plaintiff may amend its pleading once as a matter of right within 21 days after service on the
defendant

o Otherwise, party may seek leave of court or written consent from opponent

Adding a new claim—permitted if:
 The original complaint was timely; and
 The new claim arises out of the same transaction or occurrence as the original claims

Adding a new defendant—permitted if:
 The claim arose out of the same conduct, transaction or occurrence;
 The new defendant received notice of the action within 90 days of the original complaint; and
 The new defendant knew or should have known that but-for a mistake, he would have been part of the original complaint

Question 26

Standards for filing pleading (Rule11)

Answer 26

o When an attorney (or unrepresented party) submits a pleading, motion or other signed document, he certifies that the documents are filed in good faith.
o If challenged, must withdraw or revise the document
o May be subject to sanctions for violation of this Rule

Question 27

Rule 11 Sanctions (Standards for Filing)

Answer 27

• Rule 11 sanctions are made if an improper paper is presented to the court.

However, if a motion is made by a party to impose Rule 11 sanctions, that party must give the other party 21 days to withdraw the offending paper prior to filing the motion with the court

Question 28

Compulsory Joinder (Just Elements)

Answer 28

Requirements:
1) The party must be necessary
2) There must be PJ over the new party
3) There must be SMJ (adding the party cannot destroy diversity)
• If adding the party would ruin diversity, the court must decide whether the party is
indispensable (dismiss the case) or not (proceed without the party)

Question 29

Compulsory Joinder Necessary party 3 Element Factors

Answer 29

 Court cannot afford complete relief without the party;
 There is a danger that the party would be harmed without joining; or
 There is a risk of an inconsistent judgment or double liability

Question 30

Factors to determine whether the new party is indispensable for compulsory joinder for determining to dismiss the case if joinder would destroy diversity

Answer 30

1) Extent to which judgment would prejudice the parties in the person’s absence;
2) Extent to which prejudice could be reduced or avoided by protective provisions;
3) Whether a judgment rendered would be adequate; and
4) Whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder

Question 31

Joinder: Cross-Claims

Answer 31

• Cross-claims: A cross-claim is a claim asserted by one party against a co-party (i.e., D v. D or P v. P).

• It must arise out of the same transaction or occurrence as the initial claim.
• A cross-claim is not compulsory.
• Must have SMJ over the cross-claim (federal question, diversity, or supplemental)

Question 32

Joinder: impleader

Answer 32

These are claims that are made by a defending party against a nonparty for all or part of the defending party’s liability on an original claim.

• Impleaded claim must relate to the original claim between the plaintiff and the defendant
• Must have SMJ over the impleaded claim (federal question, diversity, or supplemental)

Question 33

Joinder: Intervention, as matter or right vs permissive

Answer 33

A movant may intervene as a matter of right if:

(1) it has an interest related to the property or transaction that is the subject of the action,
(2) disposition without the movant may impair or impede the movant’s ability to protect its interest, and
(3) its interest is not adequately represented by the existing parties.

The motion must be timely made.

A court may grant permissive intervention if:

1) the party has a claim or defense that shares a common question of law or fact with the main action OR
2) The party is granted a conditional right under federal statute; or

Question 34

Joinder: Interpleader

Answer 34

> Interpleader: This occurs when the holder of a property subject to conflicting claims (usually an insurance company that holds a common fund) may file a lawsuit as a plaintiff and join all claimants to avoid the possibility of double liability.

Under statutory interpleader, $500 is enough and minimal diversity is enough (i.e., if there is diversity between any two of the claimants) to get into federal court.

Question 35

Joinder of Parties: Plaintiffs

Answer 35

Plaintiffs joining plaintiffs: plaintiffs may sue together if they assert a right to relief jointly, severally, or in the alternative with respect to claims arising out of the same transaction or occurrence and involving a common question of law or fact.

Question 36

Joinder of Parties: Defendants adds defendants

Answer 36

Defendant adds defendant: A defendant may implead a new claim against a new party if that party may be liable to defendant for part or all of the recovery.

This must be filed within 14 days of serving the answer, otherwise leave of court is required.

Question 37

Class actions Requirements, and then Class Action Fairness Requirements

Answer 37

Requirements include:

1) commonality,
2) adequacy,
3) numerosity, typicality, and (with common question suits) plaintiffs need to show superiority and that common questions predominate.

The Class Action Fairness Act (CAFA) allows a federal court to have jurisdiction over a class action if there are 100 or more plaintiffs seeking over $5 million and they have minimal diversity.

Question 38

Scope of Discovery (basic)

Answer 38

o Parties may discover any nonprivileged matter that is relevant to a claim or defense.
o Court may limit discovery if unduly expensive or burdensome
o Does not need to be admissible evidence in order to be subject to discovery
o A party may not discover privileged information.

Parties may discover anything that is relevant and not privileged. Parties can use interrogatories (25 per side), depositions, and requests to admit.
Tip: depositions and subpoenas are the only methods that may be used on a nonparty

Question 39

Work Product Privledge

Answer 39

(prepared in anticipation of litigation) is not discoverable unless there is a substantial need and undue hardship. This can be shown with:

a) Information is not reasonably available by other means; and
b) The party would be substantially prejudiced if not allowed to access the materials

However, an attorney’s mental impressions are never discoverable

Question 40

SAID for Serving

Answer 40

> > state law: follow the state law methods where the federal court is located or where service is made,
agent: deliver a copy of the summons and complaint to an agent appointed by defendant or law,
individual: deliver a copy of the summons and complaint to the individual personally, or
dwelling: leave a copy of the summons and complaint at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there.

Question 41

Expert Reports for discovery ( not elements of what they have, but accessibility for discovery)

Answer 41

Expert Reports

o Expert not called as a witness—reports only accessible in exceptional circumstances

Question 42

Duty to Preserve Electronically Stored Information in Anticipation of Litigation

Answer 42

o Must take reasonable steps to preserve or could be subject to sanctions
o Court may presume that the lost information was unfavorable to the party that failed to
preserve it
o Court may also dismiss the case or enter default judgment

Question 43

Discovery Physical and Mental Exams

Answer 43

Can compel a mental or physical exam of a party if that party’s mental or physical condition
is at issue

Question 44

Discovery: Depositions and limitations

Answer 44

A deposition is a witness’s sworn out-of-court testimony

o A party can depose another party or a nonparty
o To depose a nonparty, must serve a subpoena
o Can also request that a nonparty produce documents by serving a subpoena duces tecum

Limitations, must get leave of court to do this:

i) Exceed the 10-deposition limitation;
ii) Depose a witness a second time; or
iii) Depose a person before the discovery conference under Rule 26(f).

Question 45

26(f) Conference (DISS)

Answer 45

> In federal court, the 26(f) conference is where initial disclosures of (DISS):

• damages calculation,
• insurance agreements, the
• identity of supporting witnesses, and
• supporting documents are made and a discovery plan is outlined.

Tip: unfavorable witnesses or documents do not need to be disclosed.

Question 46

16(b) conference

Answer 46

Held after 26(f) Conference of initial disclosures of DISS.

16(b) is a scheduling conference. The court enters a scheduling order and deadlines for motions.

Question 47

Pre-trial disclosure, timing and what must be disclosed.

Answer 47

30 days before trial, parties must disclose:

• the identity and reports of experts,
• the names of witnesses to be called at trial, and
• documents and depositions the parties plan to offer at trial.

Question 48

The Klaxon doctrine

Answer 48

•The Klaxon doctrine: A federal court sitting in diversity must apply the choice of law approach
prevailing in the state where it sits

Question 49

When is federal Common law applied?

Answer 49

• Federal common law is applied where Congress has given the courts the power to develop law
(e.g., bankruptcy law, admiralty, and civil rights) or where a federal rule is necessary and state law
would frustrate federal objectives. (This latter category is very narrow and usually comes up when a
case would directly affect the U.S. government.)

Question 50

When do you get a jury trial for civil matters?

Answer 50

o Seventh Amendment—right to jury trial when damages exceed $20
o Must demand jury trial within 14 days after service of last pleading
* and by federal statute where applicable.

Question 51

How to demand for a jury Trial and how to withdraw

Answer 51

For an issue triable by jury, a party can demand a jury trial by serving the other parties a written demand (which can be in a pleading) “no later than 14 days after the last pleading
directed to the issue is served.” A proper demand may be withdrawn with all parties’ consent.

Question 52

Number of Jury members required, and minimum unanimous verdict

Answer 52

Number: A jury must begin with at least six and no more than 12 members. Unless the parties
agree otherwise, the verdict must be unanimous and returned by a jury of at least six.

Question 53

How to object to a jury instruction

Answer 53

a party who objects to the instructions must do so in a *timely manner,

• on the record,
• stating the matter objected to and the grounds,

This preserves this issue for appeal.

Question 54

Can a Appellate court hear a jury instruction that was in error if it wasn’t objected to properly?

Answer 54

• Plain error: an appellate court may consider a plain error in the instructions, even if it has not been properly preserved or objected to, if the error affects substantial rights

Question 55

Judgment as a Matter of Law (Directed Verdict), what’s needed and timing

Answer 55

If there is no substantial evidence to support a
verdict for the nonmoving party, a directed
verdict will be given. The court looks at whether
plaintiff has met its burden of production.

Timing:
Defendant may file this motion after plaintiff
rests its case.
Either party may file it after defendant rests its case.

Question 56

RENEWED JMOL, what’s needed and timing

Answer 56

Can only “renew” this motion if JMOL was made earlier

o Renewed motion for judgment as a matter of law asks the court to override the jury’s verdict

Here, the party is renewing it and must show the evidence is insufficient as a matter of law to support the jury’s verdict.

Within 28 days of entry of the jury’s verdict

Question 57

Asking for New trial what’s needed and timing

Answer 57

A new trial is granted if

• there were errors in the trial that tainted the jury’s decision-making OR
• if the jury’s decision was against the great weight of evidence.

*It also may be granted if the verdict is excessive (i.e., remittitur) or inadequate (i.e., additur, which is not
recognized by federal courts).

Timing: Within 28 days of the entry of the jury’s verdict.
The court may even order a new trial on its own.

Question 58

RELIEF FROM JUDGMENT, how to get it and timing

Answer 58

If there are circumstances like mistake, fraud, or new evidence that could not have been discovered within 28? days, the court may grant relief from judgment.

timing: Generally, within one year of the judgment
(but there are exceptions, e.g., fraud).

Question 59

Appeals, timing and what it entails

Answer 59

o Generally, there must be a final judgment
o Interlocutory appeal allowed after the denial or grant of an injunction

Final judgments generally are
appealable (exceptions: preliminary
injunctions, interlocutory orders, and
collateral matters). Orders granting a
directed verdict or denying a new
trial are appealable.

TIMING
Generally, within 30 days
after entry of judgment.

Question 60

What motions/defenses can you bring in: Pre-answer, 1st answer or motion, anytime during trial, and anything, even on appeal ( NOT EXHAUSTIVE)

Answer 60

Bring in pre-answer motions:

• More definite statement
• Motion to strike

Bring in first answer or motion:

• Lack of personal jurisdiction
• Insufficient process/service
• Venue
• Affirmative defenses

Anytime through trial, the following motions may be brought:

• Failure to join a necessary party
• Judgment on the pleadings
• Failure to state a valid claim or defense

Bring any time at all, even on appeal:
Lack of subject-matter jurisdiction

Question 61

Claim Preclusion ( Res Judicata) elements and effect

Answer 61

Effect of preclusion: The Full Faith and Credit Clause requires that judgments from state courts be given the same effect in any other court that they would be given in the state in which they were handed down. When determining the preclusive effect of a prior judgment, look to the law of the court that decided it. So, if a judgment would be held to have a nonpreclusive effect in the state it was handed down in, then it cannot have a preclusive effect in any other court.

Three requirements:
1) The same plaintiff and the same defendant from lawsuit #1; ( Use the transaction or occurrence test: If it was or could have been asserted because it was part of the same transaction or occurrence, it is the same claim)

The parties must be the same or in privity.

2) Lawsuit #1 ended in a valid final judgment on the merits; and (This includes a full trial, a dismissal with prejudice, claims decided on summary judgment or JMOL, or default or consent judgments. Tip: a judgment may not look like it is “on the merits,” but it still may be considered to be for these purposes (e.g., a
dismissal with prejudice for failing to comply with a discovery order is “on the merits”)

3) Claimant is asserting the same claim as in Lawsuit #1

Question 62

Issue Preclusion, elements and effect

Answer 62

Issue preclusion has four requirements:
1) Same issue was actually litigated; (The issues must be exactly the same.) (The issues need to be actually raised and litigated.)

2) Final valid judgment on the merits; (The issues need to be actually decided in trial)
3) Issue was essential to the judgment; and (The decision must be “necessary” to the court’s judgment.)

4) The party against whom issue preclusion is asserted must have been a party in the prior lawsuit or represented in that lawsuit (a successor-in-interest)—must be fair for new
plaintiff to assert same issue (prior law required a mutuality of parties)

Nonmutual collateral estoppel allows a party to invoke collateral estoppel against a party who litigated and lost on an issue in a prior action. Defensive nonmutual estoppel means issue preclusion may be raised as a shield by a new
defendant. Some states do not allow offensive nonmutual collateral estoppel where it can be used as a sword by a new plaintiff (but federal law allows this).

Question 63

How can venue generally be held?

Answer 63

Generally, venue can be established in the following ways:

residency-based venue – a district where any defendant resides, if all of the defendants reside in the same state

events-based venue – a district where a substantial part of the events that gave rise to the suit occurred

property-based venue – a district where a substantial part of the property at issue is located (not seen here)

fallback provision – a district where any defendant is subject to the court’s personal jurisdiction (only applies if none of the above provisions can be established)

Question 64

default, who can enter default judgement, and when must one of those parties do so

Answer 64

A default refers to a defendant’s failure to timely serve an answer to a lawsuit, which is generally due within 21 days after the defendant is served with process. When the plaintiff shows this failure to the court clerk, the clerk must enter the defendant’s default into the record of the case (as seen here). A default judgment can then be entered by the clerk or the court (Choice A). The clerk must enter a default judgment when:

the plaintiff’s claim is for a sum certain (i.e., a specified or set amount) OR a sum that can be made certain by calculation

the plaintiff’s request for default judgment includes an affidavit establishing the amount due

the defendant failed to appear—i.e., did not file a motion or otherwise act before the court—and

the defendant is not legally incompetent or a minor.

Question 65

Right to jury trial in civil case

Answer 65

Right

Legal claim – seeks monetary remedy to compensate for loss (eg, tort/contract damages)
AND

> $20 in controversy

No right

Equitable claim – seeks nonmonetary remedy (eg, injunction, specific performance) since legal remedy is inadequate
OR

≤ $20 in controversy

Question 66

When is service by publication OK

Answer 66

Service by publication is the most reasonable means in the rare instance when the defendant’s identity or address is unknown and unobtainable. But if the plaintiff knows or can reasonably obtain this information, a more reasonable means of service (e.g., service by mail) must be used.

Question 67

How does Due Process get satisfied for service of Process

Answer 67

Under this constitutional requirement, service must be reasonably calculated to apprise interested parties of the pending suit so that they may appear and present objections. This is typically the most reasonable means under the circumstances.

Question 68

How can a plaintiff voluntarily dismiss a claim?

Answer 68

A plaintiff may voluntarily dismiss a suit without a court order. This can be done by filing (1) a notice of dismissal before the opposing party serves an answer or a summary-judgment motion or (2) a stipulation of dismissal signed by all parties

Question 69

When is a voluntary dismissal with prejudice

Answer 69

A voluntary dismissal is generally without prejudice, which allows the plaintiff to sue the defendant again on the same claim. But a voluntary dismissal is with prejudice when specified in a court order, notice, or stipulation OR the two-dismissal rule applies. This rule applies when:

the plaintiff’s first action was voluntarily dismissed without a court order in state or federal court and
the plaintiff brought a second action on the same claim in federal court and filed a notice of voluntary dismissal.*

Question 70

Class action certification requirements:

Answer 70

Numerosity : Joiner of all members is impractible

Commonality: Class shares common question of law or fact

TYpicality: named parties claims or defenses are typical of class AND

Adequacy: Named parties will protect class’s interest

Question 71

Cases suitable for class action (need this with pre-reqs)

Answer 71

Prejudical risk to parties or absent class members if seperate actions

Final equitble relief is appropriate because opposing parties actions apply to whole class OR

Common question of law/fact predominate and class action is best method to solve dispute

Question 72

timing of filing sanctions for 11(B)

Answer 72

A violation of one of the provisions of Federal Rule of Civil Procedure (FRCP) 11(b) (shown above) can subject a law firm, attorney, or party to sanctions. Sanction proceedings can be initiated by the court sua sponte or by a party’s motion. When sanction proceedings are initiated by a party’s motion, the safe-harbor rule requires the party serving the motion to refrain from filing it for 21 days after serving it to allow any violation to be corrected (e.g., by dismissing a claim).

Question 73

What every pleading, document, motion signed by attorney must certifcy

Answer 73

Every pleading, motion, or other document filed must be signed by attorney (or unrepresented party), thereby certifying that:

document is presented for proper purpose—not to harass, cause unnecessary delay, or needlessly increase cost of litigation

claims, defenses & legal contentions are warranted by existing law or by nonfrivolous argument for revising or establishing law

factual assertions have or will have evidentiary support and

factual denials are warranted by evidence or reasonably based on belief/lack of information

Question 74

General verdict with answers

Answer 74

Answers consistent with verdict

Judge must enter judgment consistent with verdict & answers

Answers inconsistent with verdict

Judge must:

order new trial
direct jury to further consider its answers & verdict or
disregard verdict & enter judgment consistent with answers

Answers inconsistent with each other & verdict

Judge must:

order new trial or
direct jury to further consider its answers & verdict

Question 75

judgments not on the merits, ie not for res judicata and stuff

Answer 75

Therefore, judgments not on the merits include dismissals based on:

lack of subject-matter jurisdiction—i.e., a court’s authority to hear a particular type of case
lack of personal jurisdiction—i.e., a court’s authority over the parties before it
invalid party joinder—i.e., adding parties to a suit
improper venue—i.e., the geographical location of the court that will hear a suit

Question 76

Special rules for where venue is proper

Answer 76

Removal

Federal district where state action was pending

Foreign resident
Any judicial district

Federal official sued in official capacity

Where defendant resides
Where substantial events occurred or property is located
Where plaintiff resides if no real property is involved in suit

Foreign government

Where substantial events occurred or property is located
In federal district court of Washington, D.C.
Multiparty, multiforum litigation

Where defendant resides
Where substantial part of accident occurred
Federal Tort Claims Act

Where plaintiff resides
Where act/omission occurred

Question 77

General verdict with answers

Answer 77

Answers consistent with verdict

Judge must enter judgment consistent with verdict & answers

Answers inconsistent with verdict

Judge must:

order new trial
direct jury to further consider its answers & verdict or
disregard verdict & enter judgment consistent with answers
Answers inconsistent with each other & verdict

Judge must:

order new trial or
direct jury to further consider its answers & verdict

Question 78

APPELLATE standards of review, Legal, fact and discretionary

Answer 78

Lega: Do novo
Fact: Bench Trial: Clear Error
Fact: Jury rial: Substantial Evidence
Discretionary: Abuse of discretion

Question 79

statutory interpleader

Answer 79

The insurer would like to file a statutory interpleader action, which must satisfy special requirements for:

subject-matter jurisdiction – requires an amount in controversy of at least $500 and minimal diversity of citizenship between at least two claimants

personal jurisdiction – exists over any claimant who is served with process anywhere within the U.S.

venue – proper in any judicial district where any claimant resides and

deposit – requires the stakeholder to deposit the property at issue with the court or post a bond in an amount determined by the court

Question 80

Permissive JoinderOne method of authenticating documentary evidence is to establish that the document qualifies as a reply letter. This is accomplished by showing that:

the document was written in response to an earlier communication and

the contents make it unlikely that the response was written by someone other than the recipient of the earlier communication.

Answer 80

Permissive joinder of parties is appropriate when (1) the claims asserted by or against the joined parties arise from the same transaction, occurrence, or series thereof and (2) a common question of law or fact will arise among th

Question 81

When defendant lacks minimum contacts, how can a court still get PJ

Answer 81

• the plaintiff asserts a federal-law claim
• the defendant is not subject to personal jurisdiction in any state court and
• the exercise of jurisdiction would be consistent with the U.S. Constitution and federal laws—i.e., the defendant has minimum contacts with the United States as a whole.*

Question 82

When does the forum defendant rule prohibit removal?

Answer 82

Since in-state defendants do not face the same risk of bias, the forum-defendant rule (i.e., home-court advantage rule) prohibits removal when:
• subject-matter jurisdiction arises solely from diversity jurisdiction and
• a defendant is a citizen of the state in which the case was filed (i.e., the forum state).

Question 83

How can a plaintiff properly serve a defendant located in the US?

Answer 83

• following the rules of the state where the court sits (i.e., the forum state) or where service is made
• having process delivered to the defendant personally (or to an agent authorized to receive process) or
• having process delivered to the defendant’s dwelling and left with a resident of suitable age and discretion (Choice A).

Question 84

Timing for responding to an amending pleading

Answer 84

When this occurs, a response to the amended pleading (e.g., answer) generally must be made by the later of the following deadlines:
• The time remaining to respond to the original pleading—e.g., an answer is generally due within 21 days after service of process
• 14 days after the service of the amended pleading*

Question 85

What does the signature of an attorney/unrepresentated party mean for eveyr motion, pleading, and other documents?

Answer 85

This signature certifies the following to the court:
• The document is presented for a proper purpose—not to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
• All claims, defenses, and legal contentions are warranted by existing law or by a nonfrivolous argument for revising or establishing law.
• All factual assertions have or will have evidentiary support after a reasonable opportunity for further investigation or discovery.
• All factual denials are warranted by evidence or are reasonably based on a belief or a lack of information.
A court can impose sanctions on a law firm (default), attorney, or party if the court finds that they violated one of the provisions of FRCP 11(b).

Question 86

When are the facts known and opinions held by experts not expected to testify discoverable?

Answer 86

. Information held by an expert witness expected to testify at trial is generally nonprivileged and discoverable. But facts known and opinions held by an expert not expected to testify, including the expert’s identity, are privileged and not discoverable unless:

• that information relates to a court-ordered physical or mental examination or
• exceptional circumstances make it impracticable to obtain the information by other means—e.g., a party dies and cannot be evaluated.

Question 87

What is the 3rd party standing doctrin