Civil Procedure

Question 1

Regarding subject matter jurisdiction (diversity) for Limited Partnerships (LPs), how is diversity determined?

Answer 1

The citizenship of EACH member of the partnership, both limited partners and general partners, must be taken into account.

Question 2

When a defendant agrees to waive service of process, what date is considered the date of service of process?

Answer 2

The date the plaintiff files the waiver.

Question 3

What is the general presumption of a federal court with regards to SMJ? Who bears the burden of proof?

Answer 3

A federal court must presume an absence of jurisdiction until it determines that the matter falls within its rightful jurisdiction. The burden is on the party seeking to invoke the court’s jurisdiction.

Question 4

SMJ may not be waived and may be raised by any party, at any time, including appeal. If, however, a final judgment has been entered, may it be contested?

Answer 4

A judgment ordinarily may not be challenged collaterally on the basis of improper SMJ.

Question 5

A federal court with SMJ is required to adjudicate the dispute despite the pendency of a similar action in state court. What are the limited circumstances where a FC may absatin from hearing a case or stay the matter pending the outcome of the state court action?

Answer 5

1. Resolution of state law by the state court would eliminate the need for the federal court to decide a fed constitutional issue
2. Avoidance of federal involvement with a complex state reg scheme
3. State action involves punishment of an individual for criminal sactivity or contempt of court, or imposition of a civil fine and the fed court is asked to enjoin it
4. parallel proceedings that go beyond mere waste of judicial resources

Question 6

Under the foreign sovereign immunities act, a suit may not be brought in federal or state court against a foreign state, including an angency or instrumentality of a foreign state. What are the exceptions?

Answer 6

Engaging in commercial activity
Committing a tort in the US
Seizing property in violation of international law

Question 7

What is the federal interpleader act and how does it apply to diversity jurisdiction?

Answer 7

Under the FIA, the holder of property that is claimed by two or more persons may deposit it with a court to determine ownership. There need be only two adverse claimants of diverse citizenship to establish federal jurisdiction.

Question 8

What is a stateless person for diversity jurisdiction?

Answer 8

DJ does not exist if a party is an alien who is present in the US and is not a citizen or subject of a foreign country. Or if a party is a US citizen whose domicile is a foreign country.

Question 9

Where is a corporation “incorporated” for the purposes of diversity jurisdiction?

Answer 9

Every corp has at least one state of incorp and some have multiple. If a corporation is incorporated in more than one state or foreign coutnry, then it is considered a citizen of each state and foreign country in which it is incorporated.

Question 10

What is the special rule of citizenship for liability insurers who are sued directly on behalf of the insured?

Answer 10

Section 1332 makes the insurer a citizen of the state or foreign country in which its insured is a citizen, in addition to the other states for countries where it has citizenship.

Question 11

What is the citizenship rule for unincorporated associations (partnerships?)

Answer 11

A partnership is considered a citizen of each state in which each of its members is domiciled. It’s possible that a partnership could be a citizen of all 50 states. No distinguishing between general and limited partners.

Question 12

What happens if a claim’s damages are reduced below $75,000 after filing?

Answer 12

If events after the action has been filed reduce the amount in controversy below the mnimum then jsdx will not be lost as long as the original claim was in good faith.

Question 13

When a plaintiff sues multiple defendants, may they aggregate their claims to satisfy AIC?

Answer 13

No, unless they’re jointly and severally liable in a torts claim.

Claims against EACH defendant must be more than $75,000

Question 14

If two or more plaintiffs sue one defendant, may they aggregate their claims to meet AIC?

Answer 14

No, plaintiffs may not aggregate their claims against the defendants.

If Ann and Damon decide to sue Ben together for $50,000 each. Is the AIC requirement satisfied? No, each must have a +$75K claim.

Question 15

In a class action not subject to CAFA, may plaintiffs aggregate their claims?

Answer 15

In general, if any member of the putative class does not have a claim that meets the AIC requirement, then it’s not met. The CAFA permits aggregation of claims in CERTAIN class actions.

When at least one plaintiff in a class action that is +$75K, other persons with claims under that can be made a part of the class under supplemental jurisdiction.

Question 16

What is permissive joinder?

Answer 16

A party who can assert a claim, crossclaim, counterclaim, or third party claim may join with it as many independent or alternative claims of whatever nature as the party may have against an opposing party.

Question 17

What is a counterclaim? How many it be asserted?

Answer 17

A counterclaim is a claim for relief made against an opposing party after an original claim has been made. It may be asserted in the answer to the complaint and the reply to a counterclaim.

Question 18

When must a party serve an answer to a counterclaim or crossclaim?

Answer 18

WIthin 21 days of service of process.

Question 19

What is a compulsory counterclaim?

Answer 19

Any claim that, at the time of service, the pleader has against an opposing party if the claim arises out of the same transaction or occurence that is the subject matter of the opposing party’s claim and DOES NOT require adding another party over whom the court cannot acquire jurisdiction.

Question 20

What happens when a party fails to state a compulsory counterclaim?

Answer 20

Waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court.

Question 21

What is a permissive counterclaim?

Answer 21

A pleading may state as a counterclaim against an opposing party any claim that’s not compulsory. Discretion as to whether to raise the counterclaim in the current action or in a separate matter.

Question 22

What is a crossclaim? What does it contain?

Answer 22

A claim made against a coparty. A pleading may state as a crossclaim any claim by one party against a coparty that arises out of the same transaction that is the subject matter of the original action or of the counterclaim, or if the lcaim relates to any property that is the subject matter of the original action.

It may include a claim that the coparty is liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

Question 23

What is a third party claim (impleader)?

Answer 23

Claims made by a defendant against a nonparty for all or part of their liability on an original claim. The plaintiff may also assert related claims against the impleaded party. In either case, the impleaded claim must relate to the original claim against the defending party. The court may sever any third party claim if justice demands it.

Question 24

When may a third party claim be asserted?

Answer 24

A defendant or plaintiff against whom a counterclaim has been asserted, may assert a 3rd party claim at any time after the complaint is filed.

Question 25

When must a 3rd party plaintiff serve summons on a party they are attempting to implead?

Answer 25

The third party plaintiff must serve a summons and third party complaint on the nonparty (impleaded party). They must file within 14 days of their original answer, but can get court’s permission for longer.

Question 26

Does a compulsory counterclaim need to meet the jurisdictional AIC for federal court?

Answer 26

No, so long as its a defendant against a plaintiff.

Question 27

Does a permissive counterclaim need to meet the AIC requirement?

Answer 27

Yes.

Question 28

If a case is brought in federal court on a federal question, and the court chooses to exercise supplemental jurisdiction over an additional state law claim, and the federal question is dismissed on the merits, must the federal court transfer the remaining question to state court?

Answer 28

No. Dismissal of a federal claim on the merits does not preclude a federal court from exercising pendent-party jurisdiction over the state claim.

Question 29

When a plaintiff is brought in through permissive joinder, may it do so even the AIC isn’t met? What about complete diversity?

Answer 29

Yes, the AIC of plaintiff 2 against defendant does not have to be +75, but it cannot destroy complete diversity.

Question 30

Does a compulsive counterclaim have to satisfy the AIC?

Answer 30

No, a counterclaim may be asserted by a defendant against a plaintiff without satisfying the jurisdictional amount so long as it’s compulsory.

Question 31

Does a permissive counterclaim have to satisfy the jursidictional requirements for diversity?

Answer 31

Yes. It’s not the common nucleus, so a permissive cc does not qualify for supplemental jurisdiction unless it’s over 75K.

Question 32

May a court exercise SJ over a crossclaim?

Answer 32

Since a crossclaim must arise out of the same transaction or occurrence and will qualify for SJ as long as court has SMJ over the original complain.

Question 33

When does a district court have discretion to decline supplemental jurisdiction?

Answer 33

1. the supplemental claim raises a novel or complex issue of state law.
2. The supplemental claim substantially predominates over the the claims withn the original federal jurisdiction
3. All of the claims within the court’s original jurisdiction have been dismissed
4. In exceptional circumstances, where there are other compelling reasons for declining jurisdiction

Question 34

What is removal? Where does the case go?

Answer 34

It allows a defendant to remove a case from state to federal court, so long as the federal court would have had SMJ over the original claim. It removes it to the disctric court for the district and division in which the state court action is pending.

Question 35

If diversity is preventing removal because a party is not diverse and then that party drops, can the defendant remove?

Answer 35

Yes, removal is permitted when a party who prevents diversity is dismissed from the action; however, joinder of a non diverse party will prevent removal even if the part was joined for the purpose of preventing removal so long as the plaintiff has a reasonable basis for recovering from the joined defendant.

Question 36

What are specific statutes that allow automatic removal to federal court?

Answer 36

1. Suits against the US, any federal agency or federal officers for acts under color of office
2. Suits against federal employees for injuries caused from their operation of a car within the scope of their emplyment
3. Actions where any party asserts a claim for relief based on a federal statute related to patents, copyrights, or plant variety protection
4. Actions involving federal banking

Question 37

Where is federal removal not allowed? What kinds of actions?

Answer 37

1. Actions under the FELA or Jones Act against a railroad
2. Actions against carriers for delay, loss or damage where the AIC is less than $10,000
3. Actions for workers’ comp in the state where the action is brought
4. Actions arising under the violence against women act of 1994

Question 38

When must a defendant provide notice of removal? What must the notice contain?

Answer 38

Defendant must file a notice of removal within 30 days of receipt of service. The notice must be:

1. Signed and contain a short and plain statement of removal grounds
2. filed in the DC for the district and division in which the state court is pending and
3. Be accompanied by copies of all process, pleadings and orders served on defendants seeking removal

Question 39

If there are multiple defendants and one wants to remove, what must happen?

Answer 39

all defendants must consent to removal; if the ds are served at different times and a later-served defendant files a notice, then any earlier served d may join in the removal even though they did not previously initiate or consent to removal

Question 40

When removal is based on diversity, what’s the time limit for removal?

Answer 40

1 yera after the action is commenced unless the plaintiff acted in bad faith to hit the 1 year mark

Question 41

What is the procedure for demanding a jury trial once it’s been transferred to federal court?

Answer 41

The removing party must file the demand within 14 days of filing for removal; the non moving party also has 14 days to file, but their countdown begins after the service of notice of removal; if the demand is not timely it is waived UNLESS they made the demand before the removal.

Question 42

What federal courts were created by Congress to jurisdictions over specific cases?

Answer 42

1. The US Claims Court; OJ over actions brought against the US or its officers for federal property
2. The US Court of Appeals for the federal circuit: appellate jurisdiction over claims against the federal government or its officers
3. US Court of international trade: nationwide jsdx over civil actions arising out of US customs and international trade laws
4. US Tax Court; all taxpayer challenges to IRS deficiency judgments
5. The US Bankruptcy court

Question 43

What are 3 alternative bases of personal jurisdiction? To what circumstances do they apply?

Answer 43

1. Nationwide PJ: A federal court has national PJ when authorized by satute, such as for statutory interpleader actions
2. Bulge provision: a fed court has PJ over a party who is served within 100 miles from a US judicial district regardless of the state. Applies to 3rd party defendants and required joinders
3. Rule 4(k)(2): a fed court has PJ over a D if: (i) P’s claims are federal, (ii) no state court can exercise PJ over the D, and (iii) D must have “minimum contacts with the United States” This provision is generally used for foreign defendants who have contacts with the US but not with any state in particular

Question 44

A party must object to a lack of PJ at the first opportunity, if this is denied by the court what happens?

Answer 44

Most states permit the defendant to defend the case on the merits and preserve the objection to PJ as an issue for appeal.

Question 45

When must a defendant assert improper venue and what happens if they don’t?

Answer 45

If they don’t, it’s waived. They must bring it up at the earliest opportunity either in a pre-answer motion or in the answer.

Question 46

Where is federal venue proper?

Answer 46

In a district where:

• any defendant resides, so long as all defendants are citizens of the same state OR
• Where the claim arose

If neither of the above are true (rare) any venue that would have PJ over one of the defendants.

Question 47

When may a case be transferred?

Answer 47

A case brought in a district with proper venue may be transferred for convenience to another district with proper venue.
A case brought in a district without proper venue may be transferred to a district with venue or dismissed.

Question 48

What law applies when venue is transferred?

Answer 48

1. if it was WITh proper venue, the law of the first venue applies
2. if it was WITHOUT proper venue, the law of the new venue applies

Question 49

What is considered “substantive law” for the purposes of DJ?

Answer 49

1. State SoLs
2. burdens of proof on state law claims and defenses; and
3. state rules on choice of law

In general, anything that governs conduct.

Question 50

Generally, federal courts sitting in diversity must apply federal procedural law and state substantive law. When might a federal court apply state procedural law?

Answer 50

If the choice of the procedure will be outcome determinative, the fed court should generally apply state law.

Question 51

How is time computed for the purpose of pleadings, filings, motions, etc.?

Answer 51

Whenever a time period is stated in days, the period excludes the day of the event that triggers it but it includes every day following, including weekends and legal holidays. However, if the time runs out on a weekend or holiday, it’s extended to the following Monday (or non legal holiday for holidays that aren’t always on the weekend).

Question 52

What types of claims require special pleading?

Answer 52

Fraud, misrepresentation or special damages (i.e. those that don’t naturally occur from the injury).

Question 53

What is the standard of notice pleading under Iqbal and twombly?

Answer 53

You will be expected to recognize that, even under notice pleading, unconvincing and implausible allegations with no factual support should be dismissed.

Question 54

What may a motion to dismiss be used to claim?

Answer 54

Lack of SMJ or PJ
Improper Service
Improper venue
Failure to state a claim
Failure to join a necessary party
Forum non conveniens 

Other than SMJ, most claims are waived if not brought up at the earliest opportunity.
Ex: If the defendant thinks the plaintiff’s claim is inadequate and files a motion to dismiss for failure to state a claim on which relief can be granted, but she also thinks the court lacks personal jurisdiction over her or is an improver venue, then the defendant must include BOTH those objections in the motion.

Question 55

What is a motion for judgment on the pleadings?

Answer 55

applies when the facts in the pleadings are not in dispute and the only question is of law.
If facts in affidavits or discovery documents must be considered, must file for summary judgment instead of judgment on the pleadings

Question 56

What is a motion to strike?

Answer 56

Can be used to delete from a pleading scandalous or prejudicial matters that are NOT relevant to the case at hand
Also used by the plaintiff to strike a legally invalid defense

Question 57

What is the effect of not responding to a complaint, what must the answer in general contain?

Answer 57

The failure to respond constitutes an admission
o Unless cured by amendment, the admission is binding in the action.
o Usual practice: a “boilerplate” denial of everything not specifically admitted

Question 58

What are the timing requirements for responding to a complaint? Including if the d files a MTD that’s denied instead of an answer.

Answer 58

Must ordinarily be served within 20 days of service of the pleading to which it responds
o If defendant agrees to waive service of process, the answer is due within 60 days of when the request for waiver was sent out (90 days if the request for waiver was sent to the defendant outside of the U.S.).
o If defendant files a motion to dismiss and the court denies it, the answer is due 14 days after notice of the court’s action.

Question 59

What is a Reply and what are its timing requirements?

Answer 59

It’s a plaintiff’s answer to a counterclaim and follows the same rules as answers.

Question 60

When and how many times may an amendment to a pleading be made?

Answer 60

May be amended once as of right at any time within 21 days of service of the pleading or within 21 days of the defendant’s response, if there is one

Question 61

After an amendment has been made once, how may a party request an additional amendment?

Answer 61

Needs to be made as of leave of court, but courts should freely allow.

Judge must have a reason for denying leave to amend.
 Example: Amendment is too late and would be prejudicial to the other side, or the pleader has had a prior opportunity to amend but has not corrected the problem.

Question 62

What is the doctrine of relation back?

Answer 62

In some circumstances, an amendment is deemed to relate back to the date the original pleading was filed. Usually for a question about sttute of limitations tolling.

If the statute of limitations has run out, then relation back determines whether the amended pleading is allowed (relates back) or time-barred (does not relate back).

Question 63

When does the relate back doctine toll the sol?

Answer 63

An amendment relates back to the date of the original filing IF it concerns the same conduct, transaction, or occurrence as the original pleading.
 The key concept here is Notice; it cannot have the effect of surprising the other party.

Question 64

Most pleadings are not sworn to, nor do they have to be. When do they?

Answer 64

Certification: Pleadings and other documents—including motions and discovery requests—must be signed by attorney of record and provide the attorney’s contact information.

The signature certifies that there is an appropriate factual and legal basis for filing.
o Attorney certifies that to the best of her knowledge after reasonable inquiry:
 There is NO improper purpose (e.g., harass or needlessly increase costs);
 The legal contentions are warranted by existing law or by a non-frivolous argument for a change in the law; and
 The factual allegations have evidentiary support or are LIKELY to have such support after an opportunity for discovery.

Question 65

What is intervention as of right?

Answer 65

Is available when the outsider claims an interest in the subject matter of the lawsuit that, as a practical matter, may be comprised by the disposition of the pending action. And the current parties to the litigation are not adequately representing their rights

Question 66

What is permissive intervention?

Answer 66

May be allowed whenever there is a common question of fact OR law between the intervenor’s claim and the main claim (very relaxed standard).
 Must ask the court’s permission—matter of court’s sound discretion

Question 67

Is there SJ for parties joined through permissive intervention or intervention as of right in a diversity case?

Answer 67

NO. Diversity intervenors must be completely diverse and satisfy the AIC requirement.

Question 68

What are the relaxed standards for a federal statutory interpleader act?

Answer 68

amount need only be $500
SMJ based on minimal diversity
authorizes nationwide SOP
Venue is proper where any claimant resides

Question 69

What are the pre-reqs for a class action?

Answer 69

1. Numerosity
2. Common questions of law or fact
3. Typicality of claims
4. adequacy of representation

Burden is on the proponent of class cert to establish these

Question 70

once a class action has been certified, what does settlement or dismissal require?

Answer 70

Judicial approval.

Question 71

How will a class action satisfy DJ?

Answer 71

At least one named member has a claim over $75K

All named reps must be completely diverse from defendants

Question 72

What are the special SMJ rules under the CAFA?

Answer 72

1. At least 100 members
2. Defendants are not states, state officials or other government entities
3. Action does not involve certain securities related cases or the internl affairs or governance of a corporation
4. Aggregate exceeds $5M
5. Minimum diversity exists

Question 73

What is additur? Is it allowed in federal court?

Answer 73

Additur, which is an increase by the court in the amount of damages awarded by a jury, is not permitted in a federal court action. Such an enhanced verdict violates the Seventh Amendment right to a jury trial.