Civil Procedure

Question 1

Venue

Answer 1

1. any district where any defendants reside (*all defendants must reside in the same state)
2. any district where a substantial part of a claim arose

Humans: reside in the district where they are domiciled
Businesses: reside in all districts where they are subject to PJ

Question 2

Removal (deadline, process, limits)

Answer 2

timing: within 30 days of service of the first paper showing a case is removable:
Process: File notice in federal court, Serve on parties, file a copy in state court

Limits:
If based on diversity – can’t have an in-state defendant; can’t do over 1 year after filed
*Plaintiff’s can’t remove!

Question 3

Methods for SoP for an individual

Answer 3

personal
substantial (abode, suitable age, resides there)
agent
state law method (of court + SoP)

Question 4

methods for SoP on a business

Answer 4

delivery to an officer/agent

state law method (fed ct. or SoP)

Question 5

methods for SoP on a foreign party

Answer 5

by int'l agreement
as directed by US court
as allowed under that country's law 
as directed in a letter request
personal 
mail by clerk of court
--> by any other means not prohibited by international agreement as the court may order, which is reasonably calculated to provide the defendant with notice

Question 6

requirements for a class action

Answer 6

numerosity
commonality
typicality
representative adequate

Question 7

types of class actions

Answer 7

Type 1: necessary to avoid prejudice to class members
Type 2: seeks injunction/declaratory relief because defendant treated alike
Type 3: 1. common Qs predominate over individual + 2. class method is superior to handle the dispute (**class members must be able to opt out)

Question 8

CAFA SMJ requirements

Answer 8

1. at least 100 members
2. any class member diverse from any defendant
3. aggregated claim exceeds $5M

Question 9

Requirements for claim preclusion

Answer 9

1. Same P vs. same D (or in privity)
2. final judgment on the merits
3. same claim (majority view = same T/O; minority view = property damage would be separate from personal damage)

Question 10

Requirements for issue preclusion

Answer 10

1. valid, final judgment on the merits
2. same issue litigated and determined
3. issue essential to the judgment
4. against a party or someone in privity with the party
5. used by a party or in privity; or if a nonparty if fair/equitable (likely to find if nonparty is defendant)

Question 11

Type III class actions

Answer 11

• court gives individual notice and members can opt out

- may consult members of settle/dismissal and give a second chance to opt out

Question 12

when is a party necessary to an action?

Answer 12

• court can’t accord complete relief among existing parties
• absentee’s interests could be harmed
• could subject party to a risk of multiple obligations
• Joint tortfeasors are never necessary

Question 13

initial disclosures

Answer 13

1) identities of persons with discoverable information may use to support claims/defenses
2) docs/tangible things
3) computation of ESI
4) disclosure of insurance coverage

Question 14

work product doctrine

Answer 14

anything prepared in anticipation of litigation is protected from discovery

qualified work product can be discovered if party shows substantial need and undue hardship in obtaining the materials in another way

opinion work product cannot be discovered: mental impressions, conclusions, opinions, legal theories of disclosing party

Question 15

discovery sanctions on partial and complete failure to respond

Answer 15

partial failure: party enters order compelling, if violate can sanction
total failure: can move straight to merits sanctions

Question 16

temporary restraining order (purpose, duration)

Answer 16

• purpose = to preserve the status quo until a hearing for preliminary injunction can be held
• can be ex parte if applicant files a paper under oath showing they will suffer immediate + irreparable harm; lawyer certifies efforts to give notice
• duration: 14 days, can be renewed. if beyond 14 days it’s a preliminary injunction.

Question 17

preliminary injunction

Answer 17

purpose = preserve status quo until trial
requirements: party shows likely to suffer irreparable harm, win on the merits, balance of hardships favors, in the public interest

Question 18

voluntary dismissal

Answer 18

• without court permission, before defendant serves answer/MSJ
• with court permission
• first voluntary dismissal is without prejudice; after is with prejudice

Question 19

default judgment

Answer 19

• clerk can enter DJ if defendant has made no response, claim is for a sum certain of money, plaintiff gives affidavit of sum owed, defendant isn’t a minor/incompetent
• if above requirements don’t hold, judge has discretion whether to enter DJ; defendant is entitled to notice if appeared in the case

Question 20

MSJ standard

Answer 20

1) no genuine dispute on a material fact

2) movant entitled to J as a matter of law

Question 21

JMOL

Answer 21

standard = reasonable people could not disagree on the result; considered in the light most favorable to the nonmoving party 
timing = after other side has been heard on the issue, before issue has gone to the jury

Question 22

RJMOL

Answer 22

same standard as JMOL
timing = 28D after entry of judgment; but party must have moved for JMOL at trial
Must be made on the same grounds as at trial

Question 23

motion for a new trial

Answer 23

an error at trial requires a new trial; can be granted on any non-harmless error

deadline: 28 days of judgment
reasons: erroneous jury instruction, newly discovered evidence, misconduct, judgment against weight of evidence, excessive damages

Question 24

remittitur

Answer 24

if damages shock the conscience; court offers plaintiff the choice between remitting part of the damages award or going through with a new trial

Question 25

additur

Answer 25

if damages shock the conscience, court allows defendant to add to the damages award or go through with a new trial
**not allowed in federal court

Question 26

interlocutory appeals act

Answer 26

can appeal a nonfinal order if:

• judge certifies it involves a controlling issue of law
• there is substantial ground for difference of opinion
• court of appeals agrees to hear it

Question 27

collateral order doctrine

Answer 27

court of appeals has discretion to hear an appeal on an issue if it is

• distinct from the merits of the case
• involves an important legal question
• is unreviewable if parties await a final judgment

Question 28

standard of review for questions of law on appeal

Answer 28

de novo: no deference to the district judge

Question 29

standard of review for questions of fact (bench trial vs. jury trial)

Answer 29

bench trial: affirm unless clearly erroneous

jury trial: affirm unless reasonable people couldn’t make finding

Question 30

standard of review of discretionary matters

Answer 30

affirm unless trial judge abused their discretion

Question 31

discovery requests to produce – considerations for court

Answer 31

• party moves/objects to discovery; may move for a protective order
• other party can move to compel discovery
• court considers undue cost/burden
• even if undue cost, other party can show good cause and court can order production and allocate expenses between the parties

Question 32

motions to set aside - grounds and time limits

Answer 32

Within max 1 year

• mistake, excusable neglect
• fraud, misrepresentation, misconduct of opposing party
• newly discovered evidence that couldn’t have been discovered with DD + facts existed at trial

Any time
-clerical error

Reasonable time (no maximum)
-Judgment is void (lack of SMJ)

Question 33

standard for transfer of venue

Answer 33

1. if transfer is from a proper venue –> based on convenience and justice, public + private factors
2. if from an improper venue –> court can transfer or dismiss

Question 34

motion for insufficient process vs. insufficient service of process

Answer 34

insufficient process = defects in the documents and their content
SoP = defect in service of process

Question 35

exclusions from federal courts’ jurisdictions

Answer 35

-divorce, alimony, child custody, probate

Question 36

general rule for joinder of multiple Ps/Ds

Answer 36

1) common transaction/occurrence

2) common Q of law/fact

Question 37

overview of joinder rules

Answer 37

• P can add any claims against adverse party
• can join other parties with same T/O and common Q of law/fact
• necessary parties (can’t give complete relief, interests harmed, subject to multiple suits) can be added on motion
• Ds can add counterclaims (compulsory, from same T/O; permissive, if SMJ) + cross claims (same T/O)
• TPPs can implead TPDs
• nonparties can intervene on motion if they are necessary parties, or permissive
• stakeholder can interplead ~ compels two parties to litigate a dispute