Civil Procedure

Question 1

Personal jursidiction

Answer 1

(1) need state statute

(2) must be constitutional
- does defendant have minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?

Question 2

specific personal jurisdiction- minimum contacts

Answer 2

Contact must result from defendant’s purposeful availment-voluntary act. Must be foreseeable that defendant could be sued in the forum. Plaintiff’s claim must arise from or relate to defendant’s contact with the forum.

Will arise if defendant’s contacts with the forum caused the harm to plaintiff.

Question 3

general personal jurisdiction

Answer 3

Defendant must be at home in the forum. Or defendant served with process in the state.

People are at home where they are domiciled. Companies are at home in the state where they are incorporated and where they have their principal place of business.

Question 4

Fairness factors

Answer 4

• burden on defendant and witnesses
• state’s interest in providing a forum
• plaintiff’s interest

Question 5

Who can serve process?

Answer 5

Anyone who is at least 18 years old and not a party to the action

Question 6

When must process be served?

Answer 6

Within 90 days of the filing of the complaint

Question 7

Personal service

Answer 7

Process given to defendant personally anywhere

Question 8

Substitute service

Answer 8

• at defendant’s usual place of abode
• with someone of suitable age and discretion
• who resides there

Question 9

Service on agent

Answer 9

Process can be delivered to defendant’s agent but it must be within scope of the agency to receive process

Question 10

Process by state law methods

Answer 10

Can serve process by means permitted by the law of the state where the federal court sits or where service is made.

Question 11

Service on business organizations

Answer 11

Can be served by delivering to an officer or managing or general agent a copy of summons and complaint or by using a method permitted by the state where the federal court sits or where service is to be made.

Question 12

Service on a minor

Answer 12

Can be made only by the law of the state where service is to be made.

Question 13

Waiver of service of process

Answer 13

Plaintiff mails defendant a notice and request to waive service including copy of complaint, two copies of waiver form, prepaid means of returning the form. If defendant executes and mails the waiver form to plaintiff within 30 days, she waives service.

Effective when plaintiff files waiver with court. We act as though defendant was served with process on the day of filing.

Defendant must pay costs of service if they fail to return the form and have no good cause for failing to do so.

Question 14

Diversity jurisdiction

Answer 14

case between citizens of different U.S. states or citizens of a foreign country and the amount in controversy exceeds $75,000.

Diversity doesn’t exist if any plaintiff is a citizen of the same state as any defendant. Determined when case is filed. Citzienship of a person who is a U.S. citizen is the one state U.S. state where they are domiciled. Citizenship of a corporation is any state where it is incorporated and the one state or country in which it has its principal place of business. Unincorporated association or partnership takes on the citizenship of all of its partners or members. For class actions, citizenship of named class rep is used.

For amount in controversy, any single plaintiff may aggregate all of her claims against a single defendant. Claims don’t have to be related.

Exclusions- divorce, alimony, child custody, probate

Question 15

Establishing a new domicile

Answer 15

• need physical presence in new domicile AND

- intent to make that place home for the indefinite future

Question 16

Federal question jurisdiction

Answer 16

Plaintiff’s claim arises under federal law, constitution, or treaty.

Question 17

Removal

Answer 17

Defendant can remove cases to federal court based on diversity or federal question SMJ.

Must remove no later than 30 days after service of the first paper that shows the case is removable. All defendants served with process must join in removal. if a later served defendant initiates timely removal, the earlier served defendant may join in the removal even though the 30 day period expired for them.

Plaintiffs can never remove.

Limitation- cases cannot be removed based on diversity if any defendant is a citizen of the forum state. cases cannot be removed more than one year after filed in state court.

Question 18

Removal venue

Answer 18

Defendant removes to federal district court embracing the state court where the case was filed. doesn’t matter if this venue wouldn’t have been proper under venue statutes.

Question 19

remand

Answer 19

must move to remand no later than 30 days after filing of notice of removal (unless asserting lack of SMJ).

Question 20

Supplemental jurisdiction

Answer 20

Must have a case already in federal court based on diversity or federal question. Check whether additional claims have independent bases for subject matter jurisdiction. If not, then they may be able to come in through supplemental jurisdiction.

Claim we’re trying to get into federal court must share a common nucleus of operative fact with the claim that satisfied federal SMJ. Test is always met if the claim comes from the same transaction or occurrence but the test is broader than this.

Limitations in diversity cases. Claims by plaintiffs in diversity cases generally cannot invoke supplemental jurisdiction. Only applies when there are multiple plaintiffs.

Court has discretion to decline even if requirements are met. Does so if state law claim is complex, will predominate in the case, or the claim that had independent SMJ is dismissed early in the case.

Question 21

Erie doctrine

Answer 21

Is there some federal law on point that directly conflicts with state law? Is it arguably procedural? If yes apply federal law as long as its valid. Supremacy clause.

If no federal law on point, federal judge must apply state law if the issue decided is substantive.

• conflicts choice of law rules
• elements of a claim or defense
• statutes of limitations
• tolling
• new trial standards

If no federal law on point and issue isn’t one of the five above, federal judge has to determine whether the issue is substantive.

• Is it outcome determinative?
• Balance of interest
• avoiding forum shopping

Question 22

Venue

Answer 22

Plaintiff may lay venue in any district where

• all defendants reside or (note that when defendants reside in different districts of the same state you can lay venue in any district where one defendant resides)
• a substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located

does not apply for removed cases. venue for removed cases is the federal district embracing the state court where the action was filed.

people reside where they are domiciled. A business resides in all districts where they are subject to personal jurisdiction for the case.

Question 23

Transfer of venue

Answer 23

Federal district court can transfer to another federal district court. Transferee court must be a proper venue and have personal jurisdiction over the defendant. These things must be present without waiver.

Court can transfer to any district even improper venue if all parties consent.

If transfer is from a proper venue, the burden is on the party seeking transfer. Transferee court must apply the choice of law rules of the transferor court.

If the original venue is improper court can transfer in the interests of justice or dismiss. Transferee court apply its own choice of law rules.

Question 24

Forum selection clauses

Answer 24

Federal law will enforce them. Transferee court will apply its own choice of law rules.

Question 25

forum non conveniens

Answer 25

Applies when there is another court that is the center of gravity for the case but the court cannot transfer the case to that court because it is in a different judicial system. The other court must be available and adequate. Usually the forum will be adequate unless plaintiff can get no remedy there.

Question 26

complaint

Answer 26

must contain grounds of subject matter jurisdiction, short and plain statement of the claim, demand for relief sought. Plaintiff must plead sufficient facts to support a plausible claim. Judge uses own experience and common sense to determine plausibility.

Fraud, mistake, and special damages must be pled in greater detail- particularity or specificity

Question 27

Defendant’s response to complaint

Answer 27

Must make a motion or answer no later than 21 days after service of process. If waived service, 60 days from when plaintiff mailed the waiver form to respond.

Question 28

Rule 12(e) MTD

Answer 28

motion for more definite statement- complaint is so vague or ambiguous that defendant cannot respond. must move before answering.

Question 29

rule 12(f) MTD

Answer 29

motion to strike asks court to remove redundant or immaterial things from a pleading

Question 30

Defenses that are waived if they are not put in the first response

Answer 30

Lack of PJ
Improper venue
Improper process
Improper service of process

Question 31

Motions for failure to state a claim or join indispensable party

Answer 31

Can be made as late as at trial

Question 32

Denial of Rule 12 motion

Answer 32

defendant must serve answer no later than 14 days after notice of the denial

Question 33

Right of plaintiff to amend complaint

Answer 33

Can amend once no later than 21 days after defendant serves first rule 12 response

Question 34

Right of defendant to amend answer

Answer 34

Defendant has a right to amend answer once no later than 21 days after serving it.

If defendant’s first response was an answer in which he forgot to raise an affirmative defense, he has a right to amend his answer to include the waivable defenses and the affirmative defense.

Question 35

Relation back

Answer 35

Amended pleading relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleading. Relation back allows you to treat the amended pleading as though it was filed when the original was filed to avoid statute of limitations problems.

Amending to change defendant relates back if

• amendment concerns the same conduct, transaction, or occurrence as the original
• defendant had such knowledge of the case to avoid prejudice and
• defendant knew or should have known that but for the mistake, they would have been named

Knowlege must happen within 90 days of filing the complaint.

Question 36

Supplemental pleadings

Answer 36

Set forth things that happened after pleadings were filed. No right to file, must make a motion and it is granted within discretion of the trial court.

Question 37

Rule 11

Answer 37

Lawyer signing certifies that to the best of knowledge and belief after reasonable inquiry:

• paper not for improper purpose
• legal contentions are warranted by law or a nonfrivolous argument for a law change and
• factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation.

safe harbor provision- if you’re filing for sanctions you have to serve on the other party and not file. Other party has 21 days to fix the problem and avoid sanctions.

Question 38

Claim joinder by a single plaintiff

Answer 38

Plaintiff can join any additional claim against an adverse party but there must be subject matter jurisdiction over the additional claim.

Question 39

Claims by multiple plaintiffs or against multiple defendants

Answer 39

Must arise from same transaction or occurrence and raise at least one common question of law or fact

Question 40

Necessary and indispensable parties

Answer 40

Is the absentee necessary? If they are necessary can they be joined? If they can’t be joined can the case proceed anyway?

Necessary- without absentee court cannot complete relief among the existing parties or absentee’s interest may be harmed if she is not joined or absentee claims an interest that subjects a party to a risk of multiple obligations. Joint tortfeasors are never necessary.

Can they be joined? Must have PJ over absentee and SMJ over the claim by or against them

What if they cannot be joined? Is there an alternative forum available? What is the actual likelihood of harm to the absentee? Can the court shape relief to avoid that harm?

Question 41

Compulsory counterclaims

Answer 41

One that arises from the same transaction or occurrence as plaintiff’s claim. Unless the counterclaimant has already filed in another case, they must file the compulsory counterclaim in the pending case or its waived. This is the only compulsory claim in federal court.

Question 42

Permissive counterclaims

Answer 42

Claims against the plaintiff that do no arise from the same transaction or occurrence.

remember there must be subject matter jurisdiction over counterlcaims.

Question 43

Crossclaims

Answer 43

Claim against a coparty. Must arise from the same transaction or occurrence but it is not compulsory.

Question 44

Impleader

Answer 44

Defending party brings in a new party. Must be a claim for indemnity or contribution. Defendant looking to shift their liability to the third party defendant. These claims are permissive.

Can implead within 14 days of serving the answer. After that you need court permission.

Question 45

Intervention

Answer 45

Nonparty absentee uses intervention to bring themself into a case.

If absentee’s interest may be harmed if she is not joined and that interest is not adequately represented by the current parties, intervention is as of right.

If the absentee’s claim or defense and the pending case have at least one common question of law or fact, intervention is permissive and within court’s discretion.

Intervenor’s claims must have SMJ. A claim by an intervenor plaintiff in a diversity case is a claim by a plaintiff so SMJ may be limited.

Question 46

Class action

Answer 46

Numerosity, commonality, typicality, adequacy of representation.

Numerosity- too many class members for joinder to be practicable.
Commonality- some issue in common to all class members.  Resolution of the issue will generate answers for everyone in one stroke.  
Typical- class reps claims are typical
Adequacy- class rep will fairly and adequately represent the class 

Must be one of the three types

• limited fund
• injunctive or declaratory relief
• common question/ damages (common questions must predominate over individual questions and the class action must be superior method of handling the dispute. court must notify class members and allow them to opt out

Only citizenship of class rep is considered for diversity cases

Question 47

CAFA

Answer 47

Federal court can hear class action if

• at least 100 members
• any class member, not just rep is diverse from any defendant and
• aggregated claims exceed $5M

Any defendant even an in-state defendant can remove

Question 48

26(f) required disclosures

Answer 48

Must disclose within 14 days of 26(f) conference:

• identities of persons with discoverable information the party may use to support claims or defenses and topics on which they have info
• documents and things party may use to support claims or defenses
• computation of damages
• insurance coverage that could cover all or part of the judgment

Dont have to disclose things not in your control

If you don’t disclose you cannot use the undisclosed material in the case unless failure to disclose was substantially justified.

Question 49

Expert disclosures

Answer 49

Must disclose experts who will provide evidence at trial.

• expert’s written report which includes:
• opinions they will express
• bases for the opinions
• facts used to form the opinions
• expert’s qualifications
• how much they are being paid

If you fail to disclose you cannot use the expert in the case unless the failure was justified or harmless.

Question 50

Pretrial disclosures

Answer 50

No later than 30 days before trial parties must give detailed information about their trial evidence, identity of witnesses, documents, ESI, and other things they intend to introduce at trial

Question 51

Depositions

Answer 51

No more thana 10 and cannot depose the same person twice without leave of court.

Question 52

Medical exams

Answer 52

Court order required to compel a party to submit to a medical exam. Requesting party must show (1) person’s health is in actual controversy and (2) good cause. requesting party chooses the medical professional to perform the exam.

Doctor makes a report and provides to the requesting party. If plaintiff wants a copy that means she consents to produce all medical reports by own doctors about the same condition. She also waives any doctor-patient privilege with her own doctor about the condition.

Question 53

Scope of discovery

Answer 53

Anything relevant to a claim or defense and proportional to the needs of the case.

Question 54

Work product

Answer 54

Material prepared in anticipation of litigation. Doesn’t have to be generated by a lawyer. Can be prepared by the party herself or by any representative of a party.

Work product can sometimes be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way.

Opinion work product that consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party cannot be discovered.

Question 55

Discovery sanctions

Answer 55

Party seeking sanctions generally must certify that she tried in good faith to get the information without court involvement.

They then file a motion to compel and could receive merits sanctions depending on the other party’s response to the court’s order on the MTC.

If the responding party fails to respond at all you can go straight to merits sanctions.

Question 56

Discovery merits sanctions

Answer 56

Establishment order
Strike pleadings of disobedient party as to the issues in the discovery
Disallow evidence of disobedient party on the discovery issues
Dismiss plaintiff’s case if bad faith shown
Enter default judgment against defendant if bad faith shown

Question 57

Preliminary injunction

Answer 57

Order that maintains the status quo until trial. cannot be issued ex parte. Must show:

• likely to suffer irreparable harm if the injunction isn’t issued
• likely to win on the merits of the underlying case
• balance of hardships favors her and
• injunction is in the public interest

Applicant must post bond.

Question 58

Temporary restraining order

Answer 58

Issued to preserve the status quo until a hearing for preliminary injunction can be held.

Can be issued ex parte without notice to the other party only if

• applicant files paper under oath showing if TRO isn’t issued she will suffer immediate and irreparable harm if she has to wait for the other side to be heard
• applicant’s lawyer certifies oral or written notice attempted to give to defendant or why such notice should not be required.

Applicant must post bond to cover the other side’s costs and damages caused if it turns out the restraint is wrongful. If court orders, order must be served on defendant ASAP.

Effective for no more than 14 days. Can be extended for another 14 days if good cause shown. If court extends beyond 28 days it will be treated as a preliminary injunction.

Question 59

Voluntary dismissal

Answer 59

if plaintiff wants to withdraw the case can do so without court order before defendant serves an answer or MSJ. This one dismissal will be without prejudice. Parties can also stipulate to voluntary dismissal without court order.

Second voluntary dismissal will be with prejudice.

Question 60

Default

Answer 60

Notation by the court clerk on the docket sheet. Plaintiff must move for entry of default. Until default is actually entered, defendant can respond by motion or answer even beyond 21 days. Entry of default cuts off defendant’s right to respond but must seek default judgment to get relief.

Clerk can enter default judgment if:

• defendant has not appeared
• claim for sum certain
• plaintiff provides affidavit of the sum owed
• defendant not a minor or incompetent

If these things are not true, the judge must enter the default. Defendant entitled to notice of the hearing if they have appeared. Hearing limited to what is contained in the complaint.

Question 61

Rule 12(b)(6) MTD

Answer 61

Motion to dismiss for failure to state a claim. Tests whether the case belongs in the litigation stream at all. If plaintiff’s complaint fails to state a claim, the case can be dismissed.

Judge looks at the plaintiff’s factual allegations and says if these facts are true, do they state a plausible claim? Judge uses her experience and common sense.

Court might allow plaintiff to amend the complaint.

Question 62

MSJ

Answer 62

after the case is filed and plaintiff has survived rule 12 motions. Any party can move just cannot be later than 30 days after the close fo discovery. Moving party must show:

• no genuine dispute on a material fact and
• entitled to judgment as a matter of law

Court looks at evidence in the light most favorable to the nonmoving party.

Question 63

For cause challenges to jurors

Answer 63

Parties have an unlimited amount.

Question 64

Peremptory challenges

Answer 64

Party states no reason for the challenge. Each side limited to three. Can only be used in a race and gender neutral manner.

Question 65

Motion for judgment as a matter of law

Answer 65

Reasonable people could not disagree on the result. Can move after the other side has been heard at trial on the issue.

Question 66

Renewed motion for judgment as a matte rof law

Answer 66

After trial and jury verdict. Court views evidence in light most favorable to non-moving party. Must be made within 28 days of entry of judgment. Must have moved for JMOL at the proper time at trial. Must be based on the same grounds as the original JMOL.

Question 67

Motion for a new trial

Answer 67

Some error at trial requires that we start over and have a new trial. Must move within 28 days of the judgment.

• judge gave erroneous jury instruction
• new evidence that could not have been discovered before with due diligence
• misconduct committed by juror, party, or lawyer
• judgement is against weight of the evidence (serious error)
• damages inadequate or excessive

Question 68

Remitittur

Answer 68

Jury’s damages figure excessive. Court offers plaintiff a choice to remit part of the damages award or go through a new trial.

Question 69

Additur

Answer 69

jury’s damages are inadequate. Court offers defendant a choice, add to the damage award or go through a new trial.

Not allowed in federal court.

Question 70

Settlement offers

Answer 70

Can submit formal offers to settle the case up to 14 days before trial

Question 71

Motion for relief from order of judgment

Answer 71

• clerical error (any time)
• mistake, excusable neglect (reasonable time not more than 1 year)
• fraud, misrepresentation misconduct by opposing party (reasonable time less than 1 year)
• newly discovered evidence could not have been discovered with due diligence for motion for new trial. evidence must have existed at time fo trial (reasonable time less than 1 year)
• judgment is void, court had no SMJ (reasonable time)

Question 72

Appeals

Answer 72

Only of final judgments. Notice of appeal must be filed with the district court within 30 days after entry of the judgment is being appealed.

Question 73

Interlocutory appeals

Answer 73

Preliminary injunctions appealable as of right.

Nonfinal order can be appealed if:

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

Question 74

Collateral order doctrine

Answer 74

Appellate court has discretion to hear an appeal if that issue is

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

Question 75

Appellate review of class cert

Answer 75

Court of appeals has discretion to review. Party seeking reviewing must do so at the court of appeals within 14 days of the order. Does not stay proceedings in district court unless either court says so.

Question 76

Claim preclusion

Answer 76

A claimant may sue only once to vindicate a claim. Requirements:

• claimant suing same defendant
• valid final judgment on the merits
• both cases must assert the same claim

Question 77

Issue preclusion

Answer 77

• case ended in valid final judgment on the merits
• same issue actually litigated and determined in case 1
• issue essential to the judgment in case 1
• can only be used against someone who was a party to case 1 or in privity with a party
• all courts agree that issue preclusion can be used by someone who was a party to case 1. issue is whether it can be used by someone who was not a party to case 1.

If being used by a defendant in case 2- its ok as long as the plaintiff had full chance to litigate the issue in case 1. There is a clear trend in federal law to allow use by the plaintiff in case 2 if it would be fair.

Fairness factors

• full and fair opportunity to litigate in case 1
• strong incentive to litigate case 1
• easily could have joined case 1
• no inconsistent findings on the issue

Question 78

Service on foreign corporation

Answer 78

(1) international treaty
(2) in accordance with foreign country’s laws
(3) as foreign authority directs in response to a letter request for guidance
(4) having clerk mail process to defendant requesting signed receipt
(5) any other means not prohibited by international agreement that the court orders