Civil Procedure

Question 1

Three Types of Subject Matter Jurisdiction:

Answer 1

1) Federal Question
2) Diversity of Citizenship
3) Supplemental Jurisdiction

Question 2

Federal Question Jurisdiction –

Answer 2

Exists when the claim
arises under (a) federal law, (b) the U.S. Constitution,
OR (c) U.S. treaty.
− P must be enforcing a federal right.
− Federal question MUST be present on the face of a well pled complaint.
− Raising a defense under federal law is NOT
sufficient.

Question 3

Diversity of Citizenship Jurisdiction

Requires BOTH:

Answer 3

1) Complete diversity of citizenship at the time the action is commenced (No P can be from the same state as any D)
2) Amount in controversy exceeds $75,000.

Based on damages alleged in good faith in the Complaint, UNLESS it’s legally certain that the P cannot recover the specified amount.

Question 4

Supplemental Jurisdiction Requirements

Answer 4

Requirements—common nucleus of operative fact (CNOF)

-Each additional claim must share a CNOF with an existing claim that invoked FQJ or diversity jx

-Same transaction or occurrence
—supplemental claims share a CNOF if they arise from the same transaction or occurrence as the underlying claim

Question 5

Removal – Defendant MAY remove a case to Fed. Court (in the district where the state court case was originally filed) if:

Answer 5

1) The federal court has SMJ;
2) All defendants agree;
3) No defendant is a resident of the forum state;
AND
4) Removal is sought within 30-days of service of the Summons or receiving the initial pleading
(whichever is shorter).

Question 6

Complete diversity of citizenship - Citizenship is determined by domicile:

Answer 6

− Natural Person: (1) residence, and (2)
subjective intent to make the state their
permanent home.
− Corporation: Has dual citizenship →
the principal place of business + any
state where it is incorporated.
− Unincorporated Association: Deemed
to be a domiciliary of the state of every
partner/member/owner.
− Executor/Personal Representative:
Citizenship is that of the decedent or
person being represented.

Question 7

Abstention Doctrines –

Answer 7

Federal courts MAY abstain
from hearing a case when it would intrude upon the
powers of another court. Additionally, a court may stay a case arising from ambiguous state law to await the
outcome of a pending state court case.

Question 8

Abstention Doctrines: Pullman Doctrine –

Answer 8

discretion to abstain when a case arises from unsettled areas of state law, and a state court interpretation may remove the need to decide the case on federal grounds.

Question 9

Abstention Doctrines: − Younger Doctrine –

Answer 9

court may abstain from hearing constitutional challenges to a state action when it would interfere with a state judicial proceeding.

Question 10

Personal Jurisdiction falls into 2 categories:

Answer 10

1) Traditional bases of jurisdiction; and

2) Long-arm Jurisdiction.

Question 11

Traditional Bases of Jurisdiction:

Answer 11

a) Domicile;
b) Presence in the state when served;
c) Consent; OR
d) Waiver (appearing in the action without
objecting) .

Question 12

Long Arm Jurisdiction

Answer 12

1) The State must have a Long-Arm Statute; AND
2) Comply with Constitutional Due Process:

Requirements – D has sufficient minimum
contacts with the forum state so as not to offend
traditional notions of fair play and substantial
justice.

Question 13

Constitutional Due Process: i) Prong 1 -

Minimum Contacts (contacts + relatedness) – Either:

Answer 13

a) General Jurisdiction

b) Specific Jurisdiction

Question 14

Minimum Contacts - General Jurisdiction

Answer 14

– contacts so substantial and of such nature that D is essentially at home; OR
i. Individuals = domicile in state
ii. Corporations = where Corp. is “at home” (usually where
incorporated or headquartered).

Question 15

Minimum Contacts - Specific Jurisdiction

Answer 15

– connection between forum state and underlying
controversy AND lawsuit must relate/arise from D’s contact with the state.
i. Regularly occurring product sales in a state DOES NOT
justify jurisdiction of a claim unrelated to those sales.

Question 16

Constitutional Due Process: Prong 2 -
Fair Play & Substantial Justice
(fairness) –

Answer 16

Must be fair and reasonable for D to be sued in the forum state.

Question 17

Method of Service

Answer 17

The method of service must be consistent with Due Process → reasonably calculated, to make the parties aware of the action, and give them an opportunity to object.

Question 18

Service

Individual → may be served:

Answer 18

(a) personally;
(b) via someone of suitable age and discretion at the individual’s current dwelling or usual place of abode;
(c) via an agent (by appointment or by law);
___OR
(d) in accordance with state law of the forum state or where service is made.

Question 19

Service

Corporation, Partnership, or Association → may be served:

Answer 19

(a) in accordance with state law of the forum state or where service is made; OR
(b) to an officer or managing/general/authorized agent.

Question 20

Service

Foreign Defendant → may be served

Answer 20

via any manner NOT prohibited by international agreement.

Question 21

Proper Venue – Venue is Proper in any district where:

Answer 21

a) any defendant resides (if all defendants are residents of the forum state);
b) a substantial portion of the claim occurred;
c) a substantial portion of the property is located;
OR
d) if none of the above, then where any defendant is subject to the court’s PJ.
*Proper venue is determined at the time the action was
filed.

Question 22

Erie Doctrine

Answer 22

– Applies when a federal case is brought under diversity of citizenship jurisdiction.

− Federal courts will apply federal procedural
law, BUT must apply the substantive law of
the forum state in which it sits.

Question 23

Erie Doctrine Procedure Law

Answer 23

Procedural Law = civil procedure rules, statute of limitations (except in limited circumstances), burden of proof, and rebuttable presumptions.

Question 24

Erie Doctrine Substance Law

Answer 24

Substantive Law = choice of law rules, statute of frauds, irrebuttable presumptions, statute of limitations that condition a substantive right or have a borrowing statute.

Question 25

Erie Doctrine:

When Substantive Federal Law Applies –

Answer 25

Federal law will apply for matters governed by the U.S. Constitution, laws passed by Congress, and valid federal law that preempts state law under the Supremacy Clause

Question 26

Preliminary Injunction

May be issued only:

Answer 26

1) upon notice to the adverse party; AND
2) if the moving party gives security/bond (used
to reimburse non-movant for injury caused by
the injunction if the moving party is not
successful on the merits).

Question 27

Preliminary Injunction

Traditional 4 -Prong Test requires:

Answer 27

1) Likelihood of P’s success on the merits;
2) Likely threat of irreparable harm to the movant;
3) The harm alleged by movant outweighs any
harm to the non-moving party (balancing the
harm); AND
4) An injunction is in the public interest.

Question 28

Amendments to Pleadings - As of Right

Answer 28

– allowed to amend once as a right within 21-days after service of:

a) the original pleading; OR
b) a responsive pleading or pre-answer motion to the original pleading.

Question 29

Amendments to Pleadings - By Permission

Answer 29

– in all other cases, an amendment is allowed:
a) with the opposing party’s written consent; OR
b) with leave of the court upon motion (should be
freely granted when justice so requires).

Question 30

Waived Defenses – If the following defenses are NOT included in the D’s first response (answer/ pre-answer motion), they are deemed waived:

Answer 30

(1) lack of PJ;
(2) improper venue;
(3) insufficient process; and
(4) insufficient service of process.

− BUT, courts have allowed adding waivable
defenses to a MTD when: (1) promptly made;
AND (2) it’s prior to a hearing on the original
motion.

Question 31

Relation Back Doctrine – When a Complaint is
amended to add a:
New Claim →

Answer 31

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.

Question 32

Relation Back Doctrine – When a Complaint is
amended to add a:
New Defendant → relates back so long as:

Answer 32

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 33

Permissive Counterclaim

Answer 33

= counterclaims that are not compulsory.

Question 34

Compulsory Counterclaim

Answer 34

= a claim that: (1) arises out of the same transaction or occurrence; AND (2) does not require adding another party out of the court’s jurisdiction.

− MUST be stated in party’s pleading or it’s
deemed waived.

Question 35

Same Transaction or Occurrence Factors – Courts

analyze whether:

Answer 35

1) Issues of fact and law are largely the same;
2) Res judicata would bar a subsequent suit;
3) Substantially the same evidence supports or
refutes the claims; and
4) If there is any logical relation between the claim
and counterclaim

Question 36

Cross-Claims – A pleading may state a claim against co-party (co-defendant) as a cross-claim, BUT only if

Answer 36

it arises out of the same transaction or occurrence as the original action or counterclaim.

Question 37

Permissive Joinder of Parties – Multiple plaintiffs or defendants MAY be joined in one action if:

Answer 37

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 38

Required Joinder of Parties – A party MUST be joined if:

Answer 38

1) The party is necessary; AND

2) Joinder is feasible.

Question 39

Required Joinder of Parties –Necessary Party – a party is necessary if:

Answer 39

a) The court cannot grant complete relief without
the party;
b) The absent party claims an interest in the action
that would be impaired or impeded; OR
c) The party’s absence creates a substantial risk of
multiple liability or inconsistent obligations.

Question 40

Required Joinder of Parties – Feasibility – joinder is feasible if:

Answer 40

1) Joinder will not remove SMJ; AND

2) Court has PJ over the party.

Question 41

Intervention as of Right – A court MUST permit a nonparty to intervene in an action if it demonstrates:

Answer 41

1) That the application to intervene is timely;
2) An interest in the subject matter of the action;
3) That protection of this interest would be
impaired; AND
4) Such interest is not adequately represented by existing parties in the action.

Question 42

Permissive Intervention – A court MAY allow a nonparty to intervene when the non-party:

Answer 42

1) Files a timely motion; AND
2) Either:
a) Has a claim/defense that shares a common question of law or fact with the main action;
OR
b) Is given a conditional right to intervene by federal statute.

Question 43

Motion to Dismiss Standard – Requires the court to:

Answer 43

1) consider the facts in the light most favorable to the non-moving party;
and
(2) determine if there is any basis upon which relief can be granted.
− The court DOES NOT evaluate the merits of the
case

Question 44

Motion to Dismiss Grounds:

Answer 44

1) Lack of SMJ;
2) Lack of PJ;
3) Improper venue;
4) Insufficient process;
5) Insufficient service of process;
6) Failure to state a claim upon which relief can be
granted;
7) Failure to join a necessary party.

*Grounds (2) through (5) are deemed waived if not
raised in the first responsive pleading or pre-answer
motion to dismiss.
*Ground (1) may be made at any time.

Question 45

Motion for Judgment on the Pleadings

Answer 45

– After Defendant answers, a motion on the above grounds is

called a “Motion for Judgment on the Pleadings”.

Question 46

Summary Judgment (SJ) Motion – A court will grant an SJ motion when:

Answer 46

1) There is no genuine issue of material fact;
AND
2) Movant is entitled to judgment as a matter of
law.

Question 47

Motion for Judgment as a Matter of Law (JMOL) –

JMOL will be granted if:

Answer 47

1) The non-moving party has been fully heard on
the issue during a jury trial; AND
2) The court finds that a reasonable jury would not
have a legally sufficient basis to rule in favor of
the non-moving party on that issue.

*The court MUST draw all reasonable inferences in the
light most favorable to the opposing party

Question 48

Claim Preclusion (Res Judicata) 
Elements – Claim Preclusion may be invoked when:

Answer 48

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 49

Issue Preclusion (Collateral Estoppel) – 
Elements – Issue Preclusion may be invoked when:

Answer 49

1) Valid and final judgment was rendered in the first action;
2) Issue is identical to the issue decided in the prior action;
3) Issue was actually litigated, determined, and essential in the prior action; AND
4) Party against whom enforcement is sought had a full and fair opportunity to litigate the issue in the prior action.

Question 50

The defense of lack of personal jurisdiction is waived if it is not asserted

Answer 50

(1) in a pre-answer motion or (2) if no pre-answer motion is made, in the original answer or an answer amended as a matter of course.

An answer can be amended once as a matter of course within 21 days of serving the answer or being served with a responsive pleading or Rule 12(b) motion.

Question 51

A federal court may impose reasonable sanctions on any attorney or party who

Answer 51

(1) failed to attend a pretrial conference,
(2) did not participate in good faith, or was substantially unprepared to participate, in the conference, or
(3) failed to obey a pretrial order.

Question 52

involuntary dismissal if the

Answer 52

plaintiff failed to prosecute the case or comply with a rule or court order.
-If the motion is granted, the case will be dismissed with prejudice (unless the court states otherwise) to prevent the plaintiff from suing the defendant on the same claim in the future.

Question 53

Final Judgement Rule:
Appeal only allowed after final judgment

If multiple claims/parties, final judgment as to fewer than all claims/parties appropriate if court expressly determines no justifiable reason for delay

Exceptions:

Answer 53

Interlocutory appeals* concerning:

Injunction (grant/denial)
Certification by district court
Class action certification
Appointment of receiver
Admiralty case
Collateral-order doctrine
Bankruptcy cases (certain orders)
Mandamus (petition for writ)
Patent infringement order (only accounting left)

Mnemonic:
In Certain Circumstances, An Appeal Can Be Made Prematurely

Question 54

An appellate court has discretion to permit an appeal from an order granting or denying class action certification if

Answer 54

the petition for such an appeal is filed with the clerk of the appellate court within 14 days after the order is entered.

Question 55

Statutory Exceptions to Final Judgement Rule – can immediately appeal orders for:

Answer 55

(i) injunctions,
(ii) receiverships,
(iii) possession of property,
(iv) liability in an admiralty action, and
(v) patent infringement orders that are final except for an accounting.

Question 56

A federal court sitting in diversity must apply state law to substantive issues and federal law to procedural issues. When it is unclear whether an issue before the court is substantive or procedural, the court must

Answer 56

determine if there is a conflict between state and federal law with respect to the issue. (i.e. examining the facts)

Question 57

Under federal-rule analysis, a federal court sitting in diversity must apply a valid federal law (e.g., federal rule) that directly addresses an issue so long as the law is

Answer 57

arguably procedural and does not abridge, modify, or enlarge a substantive right.

Question 58

A court can impose monetary sanctions for violations of Federal Rule of Civil Procedure 11(b).
The two ways Sanction proceedings can be initiated :

Answer 58

(1) by a party’s motion
or
(2) on the court’s own initiative—so long as the judge issues an order to show cause.

Question 59

Third-party practice (i.e., impleader) allows a defendant to add a nonparty who may be liable to the defendant for all or part of the plaintiff’s claim. However, the court must have one of these two types of jurisdiction:

Answer 59

original subject-matter jurisdiction or supplemental jurisdiction over the third-party claim.

Question 60

If the appellate court permits a class action certification appeal, the district court proceedings are stayed pending the appeal only when:

Answer 60

ordered by the district court or the appellate court.