Civil Procedure

Question 1

SMJ

Answer 1

• Federal Question Jx
  
  • Claim must arise under a federal law, Constitution, or U.S. treaty.
• Diversity Jx
  
  • Complete diversity of citizenship between all Ps and Ds (no P can be from the same state as any D)
    
    1. Natural persons (residence + intent)
    2. Corporations (incorp + PPB)
    3. Unincorporated Associations (All members)
    4. Executors/Personal Representatives (Decedent/Representee)
  • Amount in controversy must exceed 75k
    
    • Good faith unless legally certain no to go over 75k
• Supplemental Jx
  
  • Court can exercise jx over a claim that does not meet the requirements of SMJ if the claim arises from the same nucleus of operative facts (same transaction/occurence) as the other claims the court has SMJ over.
  • Cannot be used by P against a new third-party D
  • Cannot destroy diversity between parties

Question 2

Removal to Federal Court

Answer 2

• Generally, a D in a state court action may remove an action that originally could have been brought by the P in fed court.
• All Ds agree and no D is a resident of the forum
• Must be filed in 30 days of service or initial pleading

Question 3

Personal Jx

Answer 3

• Personal Jurisdiction falls into 2 categories:
  
  1. Traditional bases of jurisdiction; and
  2. Long-arm Jurisdiction.
• Traditional Bases of Jurisdiction:
  
  1. Domicile;
  2. Presence in state when served;
  3. Consent; OR
  4. Waiver (appearing in the action without objecting).
• Long Arm Jurisdiction – To assert PJ over a non- resident:
  
  1. The State must have a Long-Arm Statute; AND
  2. Must be Constitutional – D has sufficient minimum contacts with the forum state so as not to offend traditional notions of fair play and substantial justice.
     
     1. Prong 1 - Minimum Contacts (contacts + relatedness) – Either:
        
        1. General Jurisdiction – contacts so substantial and of such nature that D is essentially at home; OR
        2. Specific Jurisdiction – lawsuit must relate/arise from D’s contact with the state.
     2. Prong 2 - Fair Play & Substantial Justice (fairness) – Must be fair and reasonable for D to be sued in the forum state.

Question 4

Venue

Answer 4

• Proper Venue – Venue is Proper in any district where:
  
  1. any defendant resides (if all defendants are residents of the forum state);
  2. a substantial portion of the claim occurred;
  3. a substantial portion of the property is located; OR
  4. if none of the above, then where any defendant is subject to the court’s PJ.
• Transfer of Venue:
  
  • If venue was proper when the case was filed, the court MAY transfer it if:
    
    1. Needed for the convenience of the witnesses or in the interests of justice; AND
    2. The case could have initially been brought in the receiving court (court has PJ and SMJ).
  • If venue was improper when the case was filed, the court MUST either:
    
    1. Dismiss the case; OR
    2. Transfer the case to a proper court if the interests of justice require it.
• Forum Selection Clause – Courts will enforce a forum- selection clause UNLESS special factors are present (i.e. significant/unusual hardship, inequality of bargaining power).
• Transferee court applies the law of the transferor court, including choice of law rules, when the transfer was based solely on convenience. However, if transfer was based on forum slection clause, then the law of the state in forum selection clause is applied.

Question 5

Service of Process

Answer 5

Service of a copy of the summons and complaint must be made by a nonparty who is at least 18 years old. Generally, service must be made i) personally; ii) by leaving the process at the D’s usual place of abode with one of suitable age and discretion residing therein; iii) by serving the D’s authorized agent; or iv) as permitted under state law.

For an entity (corp., assoc., partnership), may be served according to state law or to an officer or managing/general/authorized agent.

Motion to dismiss for lack of service of process or improper service must be raised in the first motion or pleading made otherwise it is conisdered waived.

Must be served within 90 days of filing of complaint.

Question 6

TRO/Preliminary Injunction (July 05)

Answer 6

The requesting party must show that if TRO is not granted now, it will suffer immediate and irreparable injury before a trial on the merits can be held and that this injury greatly outweighs any harm that will be caused to the restrained party or the public if it turns out TRO was improvidently granted. Must also show party will likely succeed on the merits of its underlying case and must post bond to protect restrained party just in case improvidently granted. Notice to adverse party is required unless shown reasonable attempts to give notice or strong reasons as to why notice is not required.

Premliminary injunctions require proof of same elements except cannot be issued ex parte (full hearing on notice must be held) and injunction remains in effect throughout the litigation until dissolved by court.

Question 7

Compulsory/Permissive Counterclaim

Answer 7

• Compulsory: If a potential claim that: (1) arises out of the same transaction or occurrence as the P’s claim; AND (2) does not require adding another party out of the court’s jurisdiction.
  
  • must be pleaded or it will be barred.
• Permissive: counterclaims that are not compulsory

Question 8

Amending Pleadings

Answer 8

• Generally, a pleading (e.g. answer) may be amended:
  
  1. once before a responsive pleading is served;
  2. if no responsive pleading is required, within 21 days after service of the pleading;
  3. Thereafter, a pleading may be amended only by the written consent of the adverse party; or
  4. by leave of court upon motion. Leave of court is freely given when justice so requires (question of fact).
• Relation Back Doctrine – When a Complaint is amended to add a:
  
  • New Claim→relates back to the date of the original filing so long as it arises out of the same transaction or occurrence as the original pleading allegations.
  • New Defendant→relates back so long as:
    
    1. same transaction and occurrence;
    2. new party received notice of the original action within 90 days of filing; AND
    3. new party knew (or should have known) that the action would have been brought against it but for a mistake in the party’s identity.

Question 9

Permissive Joinder

Answer 9

• Multiple plaintiffs or defendants MAY be joined in one action if:
  
  1. joint and several relief is asserted by them or the claim arises out of same transaction or occurrence;
  2. a common question of law or fact exists; AND
  3. SMJ is present for each claim.

Question 10

Required Joinder of Parties

Answer 10

• A party MUST be joined if:
  
  1. The party is necessary; AND
  2. Joinder is feasible.
• Necessary Party – a party is necessary if:
  
  1. The court cannot grant complete relief without the party;
  2. The absent party claims an interest in the action that would be impaired or impeded; OR
  3. The party’s absence creates a substantial risk of multiple liability or inconsistent obligations.
• Feasibility – joinder is feasible if:
  
  1. Joinder will not remove SMJ; AND
  2. Court has PJ over the party.
• If joinder is not feasible then court must decide whether party is indispensable which would lead to a dismissmal. If court can work around it without joinder then case can continue.

Question 11

Electronically Stored Info (ESI)

Answer 11

• Includes emails, text messages, digital files, and meta-data. When a party reasonably anticipates litigation, it must take reasonable steps to preserve ESI (e.g. suspend routine document retention/destruction policy, litigation hold).
• Sanctions for Failure to Preserve ESI – The court may sanction a party for failure to preserve ESI only if:
  
  1. The ESI should have been preserved;
  2. The party failed to take reasonable steps to preserve it; AND
  3. The ESI cannot be replaced/restored through additional discovery.
• If the above test is satisfied, the court may:
  
  • Order measures no greater than necessary to cure any prejudice; OR
  • If failure to preserve was intentional:
    
    1. presume lost info was unfavorable;
    2. instruct jury it may or must presume lost info was unfavorable;
    3. dismiss the action; or
    4. enter a default judgment.

Question 12

Attorney Work Product Doctrine

Answer 12

• Protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation UNLESS:
  
  • A substantial need for the materials exists; AND
  • A substantial equivalent cannot be obtained without undue hardship.

Question 13

Pretrial Conference/ Pretial Order

Answer 13

A final pretrial conference is held for the purpose of formulating a plan for the trial, including a program for admission of evidence. After the pretrial conference, the court issues an order that controls the subsequent course of events in the case, including issues needing resolution and the order in which they are presented to the jury. This order supersedes the pleadings. and may be modified only to prevent manifest injustice (question of fact) (usually would defeat purpose of pretrial disclosure).

Question 14

Summary Judgment (Pretrial Motion)

Answer 14

• A court will grant an SJ motion when:
  
  1. There is no genuine issue of material fact; AND
  2. Movant is entitled to JMOL.

*The court MUST view the evidence in the light most favorable to the non-moving party.

− A SJ motion may be sought on the entire case or for certain issues (partial summary judgment).

− If a Motion to Dismiss (or Motion for Judgment on the Pleadings) presents matters outside the pleadings, the court may treat the motion as a SJ Motion.

Question 15

JMOL

Answer 15

A party may move for JMOL at any time before submission of the case of the jury. The motion may be granted only after the nonmoving party has been fully heard regarding issues and claims, and the court concludes that there is no legally sufficient evidentiary basis for a reasonable jury to conclude in favor of the nonmoving party.

Question 16

Claim Preclusion (Res Judicata)

Answer 16

• Precludes a party from subsequently re-litigating any claim that was or could have been raised.
• Elements – Claim Preclusion may be invoked when:
  
  1. Parties are identical or in privity;
  2. Prior judgment was rendered by a court of competent jurisdiction;
  3. Final Judgment on the merits in the prior action; AND
  4. Same claim was involved in both actions (claim arises out of the same transaction or occurrence).

Question 17

Collateral Estoppel (Issue Preclusion)

Answer 17

• In fed courts, a nonparty may rely on a prior judgement if:
  
  1. the issue decided in the first case was identical to that in the second;
  2. there was a final judgment on the merits;
  3. issue was actually litigated, determined, and essential;
  4. the party against whom the judgment is to be used had full & fair opportunity to be heard on the issue.

Question 18

Appeal of Final Judgment

Answer 18

• Only final orders are appealable; interlocutory orders are not.
• Final order is one that disposes of an entire case by rendering final judgment as to all parties and all causes of action.
• Appeal must be filed within 30 days after entry of judgment.
• Collateral Order Exception - Applies when the interlocutory order:
  
  1. conclusively determines the disputed question;
  2. resolves an important issue that is separate from the merits of the action; AND
  3. is effectively unreviewable on appeal from a final judgment.
• Writ of mandamus - (allows immediate appeal) P must show that:
  
  1. he has no other adequate means, such as direct appeal, to obtain relief desired; and
  2. the trial court’s actions constitutes a serious abuse of power that must be immediately corrected.