Civil Procedure

Question 1

When must a Defendant object to personal jurisdiction?

Answer 1

In pre-answer motion, or in the answer as long as it is included in Defendant’s first response. If D does not object in first response, PJ claim is waived. (FRCP 12)

Question 2

Where is venue proper?

Answer 2

First ask: are all D’s from the same state?

If D’s from different states: venue only proper where cause of action arose

If D’s from same state (or just one D): In district where D resides, or where cause of action arose

Question 3

When (for what purpose) can D assert third party claim?

Answer 3

Only to obtain RECOVERY.

And that recovery must be for D’s own liability to P.

E.g. D is admitting some degree of liability to P, but says if I am liable to P, this third party is liable to me.

If D is denying liability altogether (e.g. saying it wasn’t me it was this other person) they can’t bring in that third-party D

Question 4

What are the requirements for “relating back” in substituting a new Defendant?

Answer 4

1. Claims in amendment must arise from same transaction or occurrence as the original filing
2. New D must have been made aware/received notice of the case within the time allotted for serving original complaint (90 days from filing) + new D knew or should have known that but for a mistake, they would have been named originally. If not made aware until after the time allotted for serving original complaint, then cannot relate back

Question 5

When can you make a 12(b)(1) motion to dismiss for lack of SMJ?

Answer 5

At any time. Right to dismiss for SMJ is NEVER waived.

Question 6

When can a Defendant move to dismiss for improper venue (via FRCP 12(b)(3))?

Answer 6

Must be in your first response (in pre-answer motion or answer).

Question 7

What state’s rules determine how service of process can be made?

Answer 7

As permitted under rules of the state in which the federal court sits ORRRRRR rules of the state in which service is affected.

(FRCP 4)

Question 8

What is included in the scope of discovery?

Answer 8

Any non-privileged matter that is relevant to any party’s claim or defense, as long as info being sought can reasonably lead to admissible evidence (information directly sought does not need to be admissible)

Question 9

What names MUST a party provide during discovery?

Answer 9

The names of any individuals likely to have discoverable information that the disclosing party MAY use to support their claims or defenses

Question 10

What kind of immunity does work product doctrine provide?

Answer 10

Qualified immunity from discovery - immune from discovery unless opposing party can show substantial need and that they can’t obtain the materials another way without undue hardship

BUT “opinion work product” - mental impressions, conclusions, opinions, or legal theories of the disclosing party, has absolute immunity, and cannot be discovered.

Question 11

If a district court grants or denies class certification, is this appealable?

Answer 11

Yes, within 14 days of entry of the order

FRCP 23(f)

Question 12

When must motion for judgment as a matter of law (JMOL) be made?

Answer 12

At any time before case is submitted to jury.

Question 13

Are cross claims ever compulsory?

Answer 13

No, cross claims are permitted by never compulsory.

Question 14

What are the prongs for constitutional analysis of PJ?

Answer 14

Rule statement: Does the D have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice

1. D’s contact with the forum (purposeful availment and foreseeability)
2. Relatedness (does P’s claim arise from or relate to D’s contact with the forum? If yes, then specific PJ, if no, can only proceed if general PJ exists)
3. Fairness (ONLY look at this for specific PJ cases; never for general PJ)
   a. Burden on D and witnesses (very difficult burden; D has to show SEVERE disadvantage in litigating there)
   b. State’s interest (e.g. state may want to retain the matter if its own citizens are allegedly being harmed by out of state Ds)
   c. Plaintiff’s interest (e.g. injured in forum state and/or wants to sue at home, would be tough to litigate in D’s home state)

Question 15

What does notice to D consist of?

Answer 15

1. Summons (formal court notice of suit and timing for response)
2. Copy of the Complaint

(these two docs together = “process”)

Question 16

Who can serve process?

Answer 16

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

process server need not be appointed by the court

Question 17

When must process be served?

Answer 17

Within 90 days of filing the complaint

Question 18

Where/how can substituted service be done?

Answer 18

At the D’s usual place of abode, with someone of suitable age and discretion, who resides there

Question 19

What state law methods of service of process are permissible?

Answer 19

The methods permitted by the state law of the state (1) where the federal court sits or (2) where service is made

Question 20

When is D immune from service of process in a state?

Answer 20

D is immune from service of process in a state if they are in that state to appear as a party, witness, or attorney in a different civil case in the same state.

Question 21

What is the citizenship of a corporation for diversity of citizenship/SMJ purposes?

Answer 21

A corporation is a citizen of ANY state or country in which it is incorporated and the ONE state or country in which it has its principal place of business (PPB).

PPB = “nerve center”; usually corporate headquarters

Question 22

What is the key question for Federal Question (FQ) jx?

Answer 22

Is the plaintiff enforcing a federal right?

Question 23

How long does a D have to remove a case to federal court?

Answer 23

30 days from service of process

Question 24

What cases may be removed to federal court?

Answer 24

D can remove any case that meets requirements for diversity of citizenship OR FQ jx

BUT, if removal is based on diversity case should not be removed if:

1. Any D is a citizen of the forum state
2. More than one year has passed after the case was filed in state court

Question 25

What is the proper venue for a case that is removed from state to federal court?

Answer 25

The federal district court “embracing” the state court where the case was filed

Question 26

How long does P have to move to remand to state court (when a case has been removed to federal court), for reasons other than SMJ?

Answer 26

P must move to remand no later than 30 days after the filing of notice of removal

If fails to do so within that timeframe, waives right to have case remanded (but note, no time limit for claiming removal was improper based on SMJ)

Question 27

When can a claim get in under supplemental jx?

Answer 27

If it arises from the same nucleus of operative fact as a claim that got in under diversity or FQ

(However, if case got in through diversity and additional claim is being asserted by P, general rule is no supplemental jx; but exception to that if multiple Ps and claim by one of them does not meet amount in controversy)

NOTE: court has discretion to decline supplemental jx, even if requirements are met

Question 28

What are the five issues that are clearly “substantive” and for which the federal court must therefore apply state law?

Answer 28

1. Conflict (or choice) of law rules
2. Elements of a claim or defense
3. Statutes of limitations
4. Rules for tolling statutes of limitations
5. Standard for granting a new trial bc jury’s award was excessive or inadequate

Question 29

What must be included in a complaint?

Answer 29

1. Statement of SMJ grounds
2. Short and plain statement of the claim showing that P is entitled to relief (must include sufficient facts to support a plausible claim)
3. Demand for relief sought (e.g. damages, injunction, declaratory judgment)

***P need not allege grounds for PJ or venue

Question 30

How long does D have to respond after being served with process?

Answer 30

D has 21 days after being served with process to respond by motion or by answer

(But note that if D waived service, D gets an extension - has 60 days from when P mailed waiver form)

Question 31

By when must you raise failure to state a claim and failure to join an indispensable party?

Answer 31

Can bring motion for failure to state a claim, or failure to join an indispensable party as late as at trial.

These are NOT waived just because you don’t include in first response.

Question 32

What must a defendant do if motion to dismiss is denied?

Answer 32

Must serve answer no later than 14 days after notice of denial.

Question 33

When can P amend complaint? When can D amend answer?

Answer 33

P has the right to amend complaint ONCE no later than 21 days after D serves first Rule 12 response

D has the right to amend answer ONCE no later than 21 days of serving it.

***After the “right to amend” period ends, amending party must seek leave of court or get written consent of opposing party to amend. Court will grant leave to amend if “justice so requires”

Question 34

How do you make a supplemental pleading (setting forth things that happened AFTER the pleadings were filed)?

Answer 34

Must make a motion (there is no right to file). Whether motion is granted is in discretion of the court.

Question 35

What must be true for claims to be brought by multiple Ps or for claims to be brought against multiple Ds?

Answer 35

1. The claims must arise from the same transaction or occurrence
2. The claims must raise at least one common question of law or fact

Question 36

How do you determine if a party is “necessary” (or “required”)?

Answer 36

One of the following is true:

• Without absentee party, court cannot accord complete relief among existing parties
• Absentee’s interest may be harmed if not joined**** <—Most likely on exam
• Absentee claims an interest that subjects a party (usually D) to risk of multiple obligations

Question 37

Can a necessary absentee be joined?

Answer 37

If it is feasible. It is feasible to join them if (1) there is PJ over the absentee and (2) there is SMJ over the claim by or against the absentee.

If joinder is feasible, necessary absentee is joined to the case.

If not feasible, court decides whether to proceed without absentee or dismiss the entire case.

Question 38

When is intervention (absentee choosing to come into the case) “of right”?

When is intervention “permissive”?

Answer 38

Intervention is of right of the absentee party’s rights may be harmed if they are not joined

Intervention is permissive if there is at least one common question of law or fact between the absentee’s claim or defense, and the pending case

Question 39

What are the initial requirements to qualify for a class action?

Answer 39

1. Numerosity (too many class members for joinder to be practicable)
2. Commonality (an issue in common to all class members so resolution of that issue will generate answers for everybody in one stroke)
3. Typicality (class rep’s claims are typical of the claims of the class)
4. Representative adequate (class rep will fairly and adequately represent the class)

(Need all four)

Question 40

What are the three types of class actions?

Answer 40

Type 1 - Prejudice:
Class treatment is necessary to avoid harm either to class members or to the non class party (these are rare)

Type 2 - Injunctive or Declaratory Relief:
Ps in type 2 class action generally cannot seek damages

Type 3 - Common Question or Damages:
For a type 3 class action, (i) common questions must predominate over individual questions and (ii) the class action is a superior method to handle the dispute. This is the type of class action must frequently used in torts. In this type only, the court must notify class members that they are in a class -- notice must be provided to all reasonably identifiable members.

Question 41

Can a party have a medical exam of the opposing party done as part of discovery?

Answer 41

They must get a court order to compel the other party (or person in pary’s custody and control) to submit to a medical exam. The requesting party must show:

1. Person’s health is in actual controversy AND
2. Good cause

The requesting party chooses the medical professional to perform the exam.

Question 42

Must work product be generated by a lawyer for discovery purposes?

Answer 42

No, work product need not be generated by lawyer herself; can be prepared by party herself, or by any representative of the party (e.g. a private investigator)

Question 43

What is the proper order for hearing legal and equitable claims if both are involved in a case?

Answer 43

Jury should hear legal claims first, then judge will decide equitable claims.

Question 44

When can motions for relief from judgment to correct clerical mistakes be made?

Answer 44

At any time.

Question 45

May a trial judge call a witness and question them?

Answer 45

Yes, but the parties are entitled to cross examine the witness

Question 46

What is the four part test for Preliminary Injunctions?

Answer 46

1. Irreparable injury
2. Reasonable likelihood of success on the merits
3. Balance of hardships
4. Public interest

Question 47

When will court grant a TRO?

Answer 47

When necessary to prevent immediate, irreparable injury to a party