Civil Procedure

Question 1

HIGH

**FEDERAL QUESTION JURISDICTION

Answer 1

A federal court MUST have SMJ in order to decide cases before it.

A federal court has SMJ under federal question jurisdiction if the complaint alleges a claim that arises under federal law.

Question 2

HIGH

**WELL-PLEADED COMPLAINT RULE

Answer 2

For federal question jurisdiction to apply, the federal question MUST be presented on the face of the plaintiff’s complaint.

Raising a defense** or filing a **counterclaim under federal law does NOT trigger federal question jurisdiction.

Question 3

HIGH

**DIVERSITY JURISDICTION

Answer 3

A federal court has SMJ under diversity jurisdiction if:

1. Complete Diversity is present - every citizenship represented on the plaintiff’s side of the case must be different than EVERY citizenship represented on the defendant’s side of the case; AND
2. The amount in controversy exceeds $75,000.

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AIC Side Note:

(a) A claim for injunctive relief may be valued by the benefit to the plaintiff or the cost of compliance for the defendant.
(b) One plaintiff can aggregate all of her claims against one defendant to meet the AIC requirement. One plaintiff can also aggregate all of her claims against multiple defendants if the defendants are jointly liable.
(c) If there are multiple plaintiffs; generally, each plaintiff’s claim must meet the AIC requirement separately (unless supplemental jurisdiction applies).

Question 4

HIGH

**INDIVIDUALS’ CITIZENSHIP
FOR DIVERSITY PURPOSES

Answer 4

For individuals, citizenship is determined by the individual’s state or country of domicile (i.e., the place of residence where the individual intends to remain indefinitely).

An individual can only have one domicile at a time.

Question 5

HIGH

**CORPORATIONS’ CITIZENSHIP

FOR DIVERSITY PURPOSES

Answer 5

Corporations hold dual citizenship:

1. The state or country of incorporation; AND
2. The state or country of its principal place of business (i.e., the “nerve center” - usually where corporate headquarters are located).

Question 6

HIGH

**UNINCORPORATED ASSOCIATIONS’ CITIZENSHIP FOR DIVERSITY PURPOSES

Answer 6

Unincorporated associations and partnerships (e.g., unions, trade associations, partnerships, and limited partnerships) are considered a citizen of every state of which its members are citizens.

Question 7

HIGH

**CLASS ACTIONS CITIZENSHIP
FOR DIVERSITY PURPOSES

Answer 7

For class actions, the citizenship of each named party in the class who are suing count for diversity purposes.

Class members that are not named may join without regard to citizenship.

Question 8

HIGH

**SUPPLEMENTAL JURISDICTION

Answer 8

Supplemental jurisdiction allows a federal court with valid SMJ over a case to hear additional claims over which the court would NOT independently have jurisdiction if ALL the claims constitute the same case or controversy.

Claims constitute the “same case or controversy” if they arise out of a common nucleus of operative fact (meaning all the claims arise out of the same transaction or occurrence).

Question 9

HIGH

**SUPPLEMENT JURISDICTION
FEDERAL QUESTION CASES

Answer 9

A federal court sitting in federal question jurisdiction may hear a pendent state law claim under supplemental jurisdiction if the state law claim arises out the same transaction or occurrence as the federal law claim.

Example: P sues D for copyright infringement (federal law) and breach of contract (state law). A federal court may hear the breach of contract claim IF the breach arose out of the same transaction or occurrence as the copyright infringement claim. This holds true if the state and federal claims are spread out against multiple defendants (called “pendent party” jurisdiction – P v. D Copyright Infringement, D Breack of K).

Question 10

HIGH

**SUPPLEMENTAL JURISDICTION
DIVERISTY CASES
COMPULSORY COUNTERCLAIMS

Answer 10

A compulsory counterclaim is a counterclaim that arises out of the same transaction or occurrence as the original claim filed.

A federal court sitting in diversity jurisdiction has supplemental jurisdiction over a compulsory counterclaim.

Question 11

HIGH

**SUPPLEMENTAL JURISDICTION
DIVERISTY CASES
PERMISSIVE COUNTERCLAIMS

Answer 11

A permissive counterclaim is a counterclaim that does NOT arise out of the same transaction or occurrence as the original claim filed.

A permissive counterclaim can only be heard if it independently satisfies diversity jurisdiction (e.g., complete diversity is present + amount in controversy exceeds $75,000).

Question 12

MED-LOW

REMOVAL

Answer 12

Removal allows the defendant (and only the defendant) to move a case from state court to federal court if the case could have been brought originally in federal court.

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Federal Question Cases. The defendant may remove the case to federal court if the well-pleaded complaint discloses that the claim is based on federal law.

In diversity actions, there is an additional requirement - the defendant may remove if:

1. Complete diversity is present;
2. The amount in controversy exceeds $75,000; AND
3. The action is brought in a state of which no defendant is a citizen.

Question 13

HIGH

**PERSONAL JURISDICTION
TRADITIONAL BASES

Answer 13

If any of the following 4 traditional bases are satisfied, the court will have personal jurisdiction over the defendant:

1. Domicile (D is domiciled in the forum state)
2. Physical Presence (D is served in the forum state)
3. Consent (D consents to PJ)
4. Waiver (D waives his objections to PJ)

Question 14

HIGH

**PERSONAL JURISDICTION
STATE LONG-ARM STATUTES
(5 additional factors)

Answer 14

If none of the traditional bases are satisfied, a court may still obtain personal jurisdiction over the defendant by using a state long-arm statute.

This requires (via Constitutional Due Process) that minimum contacts exist between the defendant and the forum state.

Sufficient minimum contacts exist when:

1. General or specific jurisdiction is present; AND
2. The exercise of such jurisdiction does NOT offend traditional notions of fair play and substantial justice.

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FACTORS:

(a) Convenience for the defendant;
(b) Whether the forum state has a legitimate interest in providing redress;
(c) Whether the plaintiff’s interest in obtaining relief is proper;
(d) The interstate judicial system’s interest in efficiency; AND
(e) The shared interest of the several states in furthering social policies.

Question 15

MED-LOW

GENERAL JURISDICTION

Answer 15

General Jurisdiction is present when the defendant is“essentially at home” in the forum state (usually limited to the locations where the defendant is a citizen).

When general jurisdiction is present, the defendant can be sued on ANY claim (even if the claim is unrelated to the defendant’s contact with the forum state).

Question 16

HIGH

**SPECIFIC JURISDICTION

Answer 16

Specific Jurisdiction gives courts jurisdiction over out-of-state defendants for the defendant’s specific contact with the forum state.

The claim MUST arise out of the defendant’s specific contact with the forum state. Specific jurisdiction is present if:

1. The defendant purposefully availed himself of the benefits of the forum state; AND
2. The defendant knew or reasonably should have anticipated that his activities in the forum state made it foreseeable that he may be “haled into court” there.

Question 17

HIGH

**SPECIFIC JURISDICTION
STREAM OF COMMERCE CASES

Answer 17

Stream of Commerce Cases. Generally, there will be specific jurisdiction over a defendant if the defendant:

1. Places a product in the stream of commerce in the forum state; AND
2. Commits some other act to show intent to serve the forum state.

Question 18

HIGH

**SPECIFIC JURISDICTION
INTERNET CASES

Answer 18

Internet Cases. Generally, internet cases involve either passive or active websites.

1. Passive Websites. A passive website is a website that is used for information purposes rather than online sales and commerce. Generally, the maintenance of a passive website, without more activity in the forum, is insufficient for general jurisdiction. However, it may be sufficient for specific jurisdiction if the defendant is targeting readers in the forum.
2. Active Websites. An active website is a website that is used for online commerce to make sales. The maintenance of an active website may be sufficient for general jurisdiction if the defendant is conducting significant business in the forum state such that the defendant is at home in the forum.

Question 19

LOW

SERVICE OF PROCESS

Answer 19

A civil action is commenced by filing a complaint with the court.

After the plaintiff files a complaint, a summons MUST be served on the defendant with a copy of the complaint.

The plaintiff is responsible for having the summons and complaint served within 90 days after the complaint is filed with the court.

Question 20

LOW

SERVING AN INDIVIDUAL
WITHIN THE UNITED STATES

Answer 20

An individual within a judicial district of the United States may be served by:

1. Delivering a copy of the summons and complaint to the individual personally;
2. Leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; OR
3. Delivering a copy of each to an agent authorized by appointment or by law to receive a service of process.

Question 21

LOW

SERVING AN INDIVIDUAL
IN A FOREIGN COUNTRY

Answer 21

Unless prohibited by the foreign country’s law, an individual in a foreign country may be served by:

1. Delivering a copy of the summons and complaint to the individual personally;
2. Using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; OR
3. Other means not prohibited by international agreement, as the court orders.

Question 22

LOW

SERVING A CORPORATION, PARTNERSHIP, OR ASSOCIATION

Answer 22

A corporation, partnership, or association may be served by delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.

Question 23

HIGH

**VENUE

Answer 23

Venue determines the judicial district in which a lawsuit may be filed or commenced. Venue is proper in a judicial district where:

1. ANY defendant resides, IF all the defendants reside in the same state;
2. A substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is located; OR
3. If there is NO district anywhere in the United States that satisfies (1) or (2), a judicial district in which ANY defendant is subject to personal jurisdiction.

Question 24

HIGH

**INDIVIDUALS’ RESIDENCE
FOR VENUE PURPOSES

Answer 24

An individual is deemed to reside in the judicial district where he is domiciled.

Question 25

HIGH

**BUSINESS ENTITIES’ RESIDENCE
FOR VENUE PURPOSES

Answer 25

A business entity is deemed to reside in any judicial district where the entity is subject to personal jurisdiction with respect to the action in question.

Question 26

HIGH

**FOREIGN DEFENDANTS’ RESIDENCE
FOR VENUE PURPOSES

Answer 26

A defendant who is NOT a resident of the United States, whether a U.S. citizen or an alien, may be sued in ANY judicial district.

Question 27

MED

*CHANGE OF PROPER VENUE

Answer 27

If venue is proper, the court may nonetheless transfer the case for the convenience of the parties or witnesses to any court where the case could have been originally filed (i.e., the transferee court must have valid SMJ + personal jurisdiction over the defendant + proper venue).

Question 28

MED

*CHANGE OF IMPROPER VENUE

Answer 28

If venue is improper, the court MUST:

1. Dismiss the case; OR
2. Transfer the case to a venue in which the case could have been originally filed (i.e., the transferee court must have valid SMJ + personal jurisdiction over the defendant + proper venue).

Question 29

MED

*CHOICE OF LAW
IN A CHANGE OF PROPER VENUE

Answer 29

If a court transfers a case to another venue, the law that the transferee court must apply depends on whether the original venue was proper and the type of case involved.

If the transferor court had proper venue:

1. In a diversity case, the transferee court must apply the law that would have been applied in the district court that transferred the case.
2. In a federal question case, the transferee court must apply the federal law as interpreted by its own federal court of appeals.

Question 30

MED

*CHOICE OF LAW
IN A CHANGE OF IMPROPER VENUE

Answer 30

If a court transfers a case to another venue, the law that the transferee court must apply depends on whether the original venue was proper and the type of case involved.

If the transferor court had improper venue:

1. In a diversity case, the transferee court must apply the choice-of- law rules of the state in which it is located, as opposed to the state law of the district court that transferred the case.
2. In a federal question case, the transferee court must apply the federal law as interpreted by its own federal court of appeals.

Question 31

LOW

PRELIMINARY INJUNCTIONS

Answer 31

A preliminary injunction preserves the status quo of the parties until a final judgment on the merits can be reached.

A plaintiff seeking a preliminary injunction must establish that:

1. She is likely to suffer irreparable harm if the preliminary injunction is not issued;
2. She is likely to suffer greater harm than the defendant will if the preliminary injunction is not issued;
3. She is likely to succeed on the merits; AND
4. The injunction is in the best interest of the public.

Question 32

LOW

NOTICE REQUIREMENT
FOR PRELIMINARY INJUNCTIONS

Answer 32

The non-moving party MUST be given notice and an opportunity to oppose the preliminary injunction at a hearing before the court.

Question 33

LOW

TEMPORARY RESTRAINING ORDERS (TROs)

Answer 33

A TRO preserves the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction. A TRO may NOT last longer than 14 days unless good cause exists or the non-moving party consents. A plaintiff seeking a TRO must establish that:

1. She is likely to suffer irreparable harm if the TRO is not issued;
2. She is likely to suffer greater harm than the defendant will if the TRO is not issued;
3. She is likely to succeed on the merits; AND
4. The TRO is in the best interest of the public.

Question 34

LOW

EX PARTE NOTICE
FOR TEMPORARY RESTRAINING ORDERS (TROs)

Answer 34

The court may issue a TRO without written or oral notice to the non-moving party ONLY IF:

1. Specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable harm will result to the movant before the non-moving party can be heard in opposition; AND
2. The movant’s attorney certifies in writing any efforts made to give notice to the non-moving party and the reasons why it should not be required.

Question 35

LOW

THE COMPLAINT

Answer 35

The complaint is the first pleading filed by the plaintiff - it commences the lawsuit.

A complaint MUST state:

1. Grounds for subject matter jurisdiction;
2. A short statement of the claim that shows the pleader is entitled to relief; AND
3. A demand for judgment for relief.

Question 36

LOW

THE PRE-ANSWER MOTION
(7 Ds)

Answer 36

After the complaint is filed, the defendant may file a pre-answer motion or respond with the answer.

The pre-answer motion may raise any or all of the following defenses:

1. Lack of subject matter jurisdiction;
2. Lack of personal jurisdiction;
3. Improper venue;
4. Insufficiency of process;
5. Insufficiency of service of process;
6. Failure to state a claim upon which relief can be granted; AND/OR
7. Failure to join an indispensable party under compulsory joinder.

Question 37

LOW

THE ANSWER

Answer 37

After the complaint is filed, the defendant may file a pre-answer motion or respond with the answer.

The answer MUST state:

1. A specific denial or admission of each allegation in the complaint OR a general denial of all allegations with specific admissions if necessary (a failure to deny an allegation constitutes an admission); AND
2. Any affirmative defenses that the respondent has (or that defense is deemed waived).

Question 38

LOW

AMENDMENTS TO PLEADINGS
BY RIGHT

Answer 38

A party may amend a pleading once as of right within 21 days if no responsive pleading is required.

If a responsive pleading is required, the party may amend within 21 days of whichever event is earlier:

1. The service of the responsive pleading; OR
2. Being served with a Rule 12(b) motion.

Question 39

AMENDMENTS TO PLEADINGS
BY LEAVE OF THE COURT

Answer 39

The court can permit an amendment to a pleading when justice so requires.

Generally, a court will permit a proposed amendment if the proposed amendment:

1. Is not subject to dismissal under Rule 12(b); AND
2. Would NOT result in undue prejudice to the opposing party.

Question 40

LOW

RELATION BACK DOCTRINE

FOR NEW CLAIMS

Answer 40

The relation back doctrine determines whether an amendment to a pleading will relate back to the date of the original pleading. This can be important for statute of limitation purposes.

If the pleading is amended to include a new claim or defense, the amendment will relate back to the date of the original pleading if the new claim or defense arose out of the same transaction or occurrence set out in the original pleading.

Question 41

LOW

RELATION BACK DOCTRINE
FOR NEW PARTIES

Answer 41

The relation back doctrine determines whether an amendment to a pleading will relate back to the date of the original pleading. This can be important for statute of limitation purposes.

If the pleading is amended to include a new party or changes the name of a party, the amendment will relate back to the date of the original pleading if:

1. It asserts a claim that arose out of the same transaction or occurrence set out in the original pleading;
2. The party to be brought in by amendment receives notice of the action within 90 days after the filing of the original complaint such that he will not be prejudiced in defending his case on the merits; AND
3. The party to be brought in by amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity.

Question 42

MED-LOW

COMPULSORY JOINDER
(INDISPENSABLE PARTIES)

Answer 42

A plaintiff MUST join an absent party or face dismissal of his lawsuit if:

1. The court has personal jurisdiction over the absentee;
2. The absentee’s presence would not destroy subject matter jurisdiction or venue; AND
3. Either:
   
   1. complete relief cannot be accorded among the other parties to the action without the absentee party; OR
   2. the absentee has such an interest in the action that a decision in his absence will impede his ability to protect the interest or leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Question 43

MED-LOW

PERMISSIVE JOINDER

Answer 43

Parties MAY join as plaintiffs or be joined as defendants when:

1. Some claim is made by each plaintiff and against each defendant that arises out of the same transactions or occurrences; AND
2. There is a question of fact or law common to all parties.

Question 44

LOW

INTERPLEADER BY A PLAINTIFF

Answer 44

Interpleader allows a plaintiff or defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead.

Joinder for interpleader is proper even though:

1. The claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; OR
2. The plaintiff denies liability in whole or in part to any or all of the claimants.

Question 45

LOW

INTERPLEADER BY A DEFENDANT

Answer 45

Interpleader allows a plaintiff or defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. A defendant exposed to similar liability may seek interpleader through a cross-claim or counterclaim.

Question 46

LOW

PRETRIAL CONFERENCES

Answer 46

Under Rule 26(f), the parties must confer as soon as it is practicable to:

1. Consider their claims and defenses, the possibility of settlement, initial disclosures, and a settlement plan; AND
2. Submit to the court a proposed discovery plan addressing the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required by the court.

Additional pretrial conferences may be held to expedite the trial and foster settlement.

Question 47

LOW

ATTORNEY WORK-PRODUCT DOCTRINE

Answer 47

The work-product doctrine protects materials prepared by an attorney or a client (or their agent) in anticipation of or during litigation from discovery by opposing counsel.

Such materials will NOT be protected from disclosure to opposing counsel IF:

1. The materials are otherwise unavailable;
2. There is a substantial need for the materials; AND
3. The materials cannot be obtained without undue hardship.

NOTE: When a party withholds information she believes is privileged or protected by work- product, the party MUST make the claim expressly and describe the nature of the documents in a manner that will enable other parties to assess the applicability of the privilege or work-product doctrine

Question 48

LOW

RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

Answer 48

Under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable or fails to allege facts sufficient to support a cognizable claim.

In making this determination courts apply a 2-step analysis:

1. First, the court must identify and reject legal conclusions unsupported by factual allegations; THEN
2. Second, the court should assume that the well-pleaded factual allegations are true and, drawing on the court’s judicial experience and common sense, determine whether the allegations plausibly give rise to the entitlement of relief.

Question 49

MED

*MOTION FOR SUMMARY JUDGMENT (MSJ)

Answer 49

A MSJ may be filed at any time until 30 days after the close of discovery. A MSJ must be granted if, from the pleadings, affidavits, and discovery materials on file, when viewing the evidence in the light most favorable to the nonmoving party, it appears that:

1. No genuine dispute of material fact exists; AND
2. The moving party is entitled to judgment as a matter of law.

Question 50

LOW

MOTION FOR JUDGMENT
AS A MATTER OF LAW (JMOL)

Answer 50

A JMOL (formerly known as a “directed verdict”) may be filed by either party after the close of the nonmoving party’s evidence or at the close of all evidence. The motion will be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party.

Question 51

LOW

FINAL JUDGMENT RULE

Answer 51

The federal courts of appeals have jurisdiction over appeals from final judgments of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.

Question 52

LOW

RES JUDICATA (CLAIM PRECLUSION)

Answer 52

Res judicata provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action. To bar a claim under res judicata:

1. The original claim must have resulted in a valid final judgment on the merits;
2. The original and later-filed causes of action must be sufficiently identical (i.e., related to the same transaction or occurrence); AND
3. The claimant and the defendant must be the same (and in the same roles) in both the original and later-filed action, or privity exists between the parties in the original and later-filed action.
   (NOTE. Res Judicata is limited to the parties and their privies; thus, a similar action by a different party would NOT be barred under res judicata.)

Question 53

MED

*COLLATERAL ESTOPPEL (ISSUE PRECLUSION)

Answer 53

Collateral estoppel precludes the re-litigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. To bar an issue under collateral estoppel:

1. The issue sought to be precluded must be the same as that involved in the prior action [i.e., the facts relevant to the particular issue and the applicable law must be identical];
2. The issue must have been actually litigated in the prior action;
3. The issue must have been determined by a valid final judgment on the merits; AND
4. The determination of the issue must have been essential to the prior judgment.

Question 54

MED-LOW

COLLATERAL ORDER DOCTRINE

Answer 54

The doctrine of collateral order allows a party to appeal interlocutory rulings if the ruling decides a claim or issue:

1. That is separable from and collateral to the merits of the case;
2. Involves a serious and unsettled legal question; AND
3. Would be effectively unreviewable if the court waited until final judgment to hear the claim or issue.