Civil Procedure

Question 1

Citizenship of Corporations

Answer 1

A Corporation is a citizen of every state in which its incorporated and the one state in which it has its principal place of business.

Corporations may have multiple citizenships, each of which is considered in determining whether complete diversity exists

Question 2

Aggregation of Claims

Answer 2

A single plaintiff may aggregate all of their claims against a single defendant

Question 3

Diversity Jurisdiction Where a Party is Deceased

Answer 3

For diversity purposes, a legal representative of a decedent assumes the state citizenship of the decedent.

The Executor’s citizenship is disregarded.

Question 4

Federal Question Jurisdiction

Answer 4

Federal question jurisdiction is available when the plaintiff, in his well-pleaded complaint, alleges a claim that arises under federal law. Anticipation of a federal defense or the fact that federal law is implicated by the plaintiff’s claim do not give rise to federal question jurisdiction; the plaintiff’s claim must arise under federal law.

federal question jurisdiction over the case because it “arises under” a treaty of the United States, as provided for by Article III of the Constitution.

Question 5

Removal Permissible When…

Answer 5

A defendant may remove an action that could have originally been brought in the federal courts, either on the basis of a federal question being presented or on the basis of diversity of citizenship.

When jurisdiction of the federal court is based solely on diversity, and one of the defendants is a citizen of the state in which the action was brought, the action is not removable. There is no similar restriction on removal when removal is based on federal question jurisdiction.

Question 6

Venue

Answer 6

Federal venue in civil actions is proper in

(i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and
(ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred.

If there is no district anywhere in the United States that satisfies (i) or (ii), the action may be brought in any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

INTERPLEADER RULES: When an action is filed under the Federal Interpleader Statute, venue is proper where any claimant resides.

Question 7

PJ Rule Statement

Answer 7

Personal Jurisdiction is about the court’s power over the parties and whether the court can hear a case against a particular defendant

Two-step analysis, where PJ must first fall within state statute and must satisfy the Constitution (due process)

1. State Statute - PJ exists where: 1) D is present in the state and served with process there, 2) D is “at home” or domiciled in that state, 3) D consents to PJ in that state or waives PJ by not raising it as an affirmative defense, or 4) meets requirements of long arm statute (note: CA long arm statute allows courts to exercise PJ to the full extent of the Constitution)
2. Constitution - minimum contacts with forum so jdx does not offend traditional notions of fair play and substantial justice. Look at 1) contact - purposeful availment and foreseeability 2) relatedness - claim arises from or relates to D’s contact with forum (yes - specific PJ, no - general PJ), and 3) fairness (specific PJ only) - burden on D and witnesses, state’s interest, P’s interest

Question 8

Notice/ Service of Process

Answer 8

Notice consists of:

1. summons, which is a formal court notice of suit and timing for response, and
2. copy of complaint

Can serve if at least 18 y.o and not party to action

Service must occur within 90 days of filing the complaint, unless good cause.

Question 9

Four ways to Serve Process

Answer 9

1. Personal service
2. Substituted service (at Ds usual place of abode with someone of suitable age and discretion who resides there)
3. Service on agent
4. State law methods

Question 10

Waiver of Service of Process

Answer 10

D can waive service of process. If D executes and mails waiver form to P within 30 days, they waive service of process. Waiver effective once P files it in court

Question 11

Immunity of Service of Process

Answer 11

If D goes to state X to appear as a party, witness, or attorney in a different civil case in State X, D cannot be served with process for a civil case in federal court in State X. D is immune from service.

Note: CA does not recognize this

Question 12

Subject Matter Jdx

Answer 12

In general, see Civ Pro Rule Statements Flashcards

• Note A lack of SMJ cannot be waived. If a case does not invoke Federal SMJ and a court hears a case, the judgement is void.

Question 13

SMJ Diversity Jdx Citizenship specifics

Answer 13

• unincorporated association takes on citizenships of all its members
• limited partnership includes citizenships of general and limited partners
• decedents, minors, and incompetent persons must sue via representative. Representative’s citizenship is irrelevant
• Class action: look at citizenship of named representative

Question 14

How a Case is Removed and Timing

Answer 14

D files “notice of removal” in federal court, stating grounds for removal (federal smj - diversity of fed q). Permission of state or federal court is not required.

D attaches documents that were served on her in state action. D then promptly serves copy of notice of removal on adverse parties and files a copy of notice of removal in state court.

D must remove no later than 30 days after service of the first paper that shows the case is removable. Usually no later than 30 days after service of process. In civil case in diversity jdx, cannot remove if 1) any D is a citizen of forum state, and 2) more than one year after case was filed in state court

All Ds who have been served with process must join in removal

Question 15

Supplemental Jurisdiction

Answer 15

• must have a claim that is in federal court already based on diversity or Federal Q jurisdiction
• Must share a common nucleus of operative fact with claim that satisfies federal SMJ (T/O)

Limitation for diversity cases:
- Generally, Ps cannot invoke supp jurisdiction. Except where there are multiple Ps and the claim by one does not meet AIC (cannot break diversity jdx)

Question 16

Erie

Answer 16

1. Is a federal law on point that conflicts with state law? If so apply federal law so long as its valid. (Note: FRCP is presumptively valid). Under the Rules Enabling Act, a Federal Rule is valid if it deals with “practice or procedure” and does not “abridge, enlarge, or modify” a substantive right.
2. If no federal law on point, federal judge applies state law to substantive issues and federal law to procedural issues

Must apply state law on these issues:

• conflict or choice of law rules
• elements of claim or defense
• statute of limitations
• tolling of statute of limitations
• standard for granting a new trial bc jury’s damage awards are excessive or inadequate

3. If no federal law on point and issue is not one of the five above, fed judge must determine whether issue is “substantive”
   - outcome determinative?
   - balance of interests?
   - avoid forum shopping?

Question 17

Complaint

Answer 17

Must contain:

• statement of grounds of SMJ
• short and plain statement of the claim showing that P is entitled to relief
• demand for relight sought

P need not allege grounds for PJ or venue

Fraud, mistake, and special damages must be pleaded with particularity and specificity

Question 18

D’s Response to P’s Complaint

Answer 18

1. By motion, or
2. By answer

No later than 21 days after service of process. If D waived services, than D has 60 days from when P mailed waiver form

If Rule 12 motion denied, D must serve answer no later than 14 days after notice of denial

Question 19

Waivable Defenses under Rule 12b

Answer 19

Some 12b defenses are waived if not put in the first Rule 12 response (motion or answer) :

• lack of PJ
• improper venue
• improper process
• improper service of process

12b defenses that are NOT waived even if not in first response:

• failure to state a claim and failure to join an indispensable party
• lack of SMJ

Question 20

Answer

Answer 20

A pleading. Must:

• admit some or all allegations,
• deny some or all allegations,
• state that there is insufficient knowledge

Must also raise affirmative defenses

Question 21

Right to Amend Pleadings

Answer 21

By P:

• Right to amend once no later than 21 days after D serves her first Rule 12 response
• After that, must seek leave of court who will grant leave if “justice so requires”

By D:

• Right to amend answer once no later than 21 days of serving it
• Right to amend to include waivable defenses and affirmative defenses
• After that, must seek leave of court

Question 22

Amendment after SOL has run:

Answer 22

1. To join a claim not originally asserted - concerns same conduct, T/O as original pleading. Treat amended pleading as though it was filed when original was filed
2. To change a D - amendment will relate back if:
   I. Amendment concerns the same conduct, T/O as original
   ii. D had such knowledge of the case that she will be able to avoid prejudice, and
   iii. D knew or should have known that but for a mistake she would have been named originally

Knowledge within service of process period

Federal Rule of Civil Procedure 15 states that leave of court (to grant motions to amend) is to be “freely given when justice so requires.” The rule does not provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice. Additionally, for statute of limitations purposes, proposed claims may be considered to “relate back” to the date of the original pleading in which the claim was made under Rule 15(c).

Question 23

Rule 11 Safe Harbor Provision

Answer 23

If a party violates Rule 11, opposing party cannot immediately motion for sanctions. Serves motion on parties but does not file in court, giving party in violation a safe harbor of 21 days to fix the problem and avoid sanctions

Question 24

Joinder

Answer 24

By P:
- may join any claim she has against adverse party, even if unrelated, so long as there is SMJ over that claim

Claims by multiple Ps or against multiple Ds must:

1. Arise from same T/O
2. Raises at least one common Q of law or fact

Question 25

Necessary and Indispensable Parties

Answer 25

1. Is absentee necessary? Court cannot accord complete relief among existing parties, or absentee’s interest may be harmed if not joined, or absentee claims an interest that subjects a party to multiple obligations
2. If necessary, can absentee be joined? PJ, federal SMJ
3. If cannot be joined, can case proceed? Is there an alternative forum available, whats the likelihood of harm to absentee, can court shape relief to avoid harm

Question 26

Claim Joinder by D

Answer 26

D includes counterclaim in answer and P must respond under Rule 12 within 21 days of service of counterclaim

Compulsory - Same T/O. MUST FILE

Permissive - Does not arise from same T/O. Must have SMJ or Supp jdx

Crossclaim - against a co-party, must be same T/O, permissive.

Question 27

Class Action Requirements

Answer 27

1. Numerosity
2. Commonality
3. Typicality
4. Representative adequate

Question 28

Class Action types

Answer 28

1. Necessary to avoid harm/prejudice to either class members or non-class party. RARE (many claims to limited fund of money)
2. Injunctive/Declaratory Relief - generally cannot seek damages
3. Damages - requires that I) common Q predominate over individual questions, and ii) class action is superior method to handle dispute

Question 29

Class Action Type 3 - Damages

Answer 29

Class members must receive notice informing them that they:

1. can opt out
2. will be bound by judgement if they dont opt out
3. can enter a separate appearance through counsel

no right to opt out of type 1 or 2

Question 30

Class Action Fairness Act

Answer 30

CAFA grants SMJ if:

1. at least 100 members
2. any class member is diverse of citizenship from any D
3. aggregated claims exceed $5 million

Question 31

Discovery

Answer 31

1. Initial Required Disclosures - within 14 days of Rule 26f conference, must disclose: identities of persons with discoverable info that the party may use to support her claims or defenses, documents and things in party’s control that party may use to support her claims and defenses, computation of relief for monetary relief, disclose insurance that may cover all or part of judgement
2. Expert witnesses - each party must identify EW who may provide testimony at trial and provide identity of and written report prepared by EW. Consulting experts opinions/facts are not discoverable absent exceptional circumstances
3. Required pretrial disclosures - no later than 30 days before trial, parties must give detailed information about trial evidence

Question 32

Depositions

Answer 32

Depositions may be used at trial (subject to rules of evidence) to:

1. impeach deponent
2. any purpose if deponent is adverse party
3. any purpose if deponent is unavailable for trial unless absence procured by party seeking to introduce evidence

Question 33

Scope of Discovery

Answer 33

A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case.

“Discoverable” is broader than “admissible”

A party may serve on a nonparty a subpoena that compels the nonparty to produce physical material, including documents and electronically stored information, relevant to the pending action.

Question 34

Voluntary Dismissal

Answer 34

1. W/O court permission - P may withdraw case w/o court order before D serves an answer of MSJ. Or parties can stipulate
2. W/ court permission - after D serves answer or MSJ, court permission is required absent a stipulation
3. One voluntary dismissal w/o prejudice - first voluntary dismissal is w/o prejudice and P can refile. Second is with prejudice

Question 35

Default Judgement

Answer 35

Clerk of court can enter default judgement if:

1. D has made no response at all (has not appeared)
2. Claim is for a sum certain in money
3. P gives affidavit of sum owed
4. D is not a minor or incompetent

If any is not true, P must apply to court for judge to hold hearing for default judgement

Question 36

12b6 MTD for failure to state a claim

Answer 36

Looks at P’s allegations of fact and asks “if these facts are true, do they state a plausible claim?”

Question 37

MSJ (FRCP 56)

Answer 37

Must show that:

1. No genuine dispute on material fact, and
2. Entitled to JMOL

Any party can move for MSJ no later than 30 days after close of discovery

Court views evidence in light most favorable to non-moving party

Affidavits used to support motions for summary judgment must (i) be made on personal knowledge; (ii) set forth such facts that would be admissible in evidence; and (iii) show the affiant is competent to testify.

Question 38

JMOL

Answer 38

• motion based upon evidence presented at trial.
• Standard: reasonable people could not disagree on the result, viewing evidence in light most favorable to non-moving party
• any party can move after other side has been heard at trial on the issue

RJMOL - after trial within 28 days of entry of judgement, requires party to have first moved for JMOL

Question 39

Motion for a New Trial

Answer 39

New-trial can be granted on any non-harmless error that judge thinks permits a do-over. May move for new trial within 28 days of judgement

Reasons for new trial include:

• erroneous jury instruction
• new evidence was discovered that could not have been discovered before
• misconduct by juror, party, lawyer, etc.
• serious error of judgement
• excessive or inadequate damages

Less drastic than RJMOL. RJMOL takes judgement away from one party to another, New trial is a do-over

Question 40

Motion for Relief from Order or Judgement

Answer 40

Possible to obtain relief under certain circumstances:

1. Clerical error - any time
2. Mistake, excusable neglect - reasonable time, never more than 1 year
3. Fraud, misrepresentation or misconduct by opposing party - reasonable time, never more than 1 year
4. newly discovered evidence that could not have been discovered for a new trial motion - reasonable time, never more than 1 year
5. judgement is void - reasonable time, no max

Question 41

Appellate Review

Answer 41

Notice of appeal within 30 days after entry of judgement

Question 42

Interlocutory Appeals

Answer 42

Orders granting, modifying, or refusing preliminary or permanent injunctions are reviewable as of right

Discretion to review order granting or denying class cert

Discretion if issue 1) is distinct from merits of case, 2) involves important legal Q, and 3) is essentially unreviewable if parties await a final judgement

Question 43

Standards of Review on Appeal

Answer 43

Q of law - de novo
Q of fact in bench trial - affirm unless findings are clearly erroneous
Q of fact in jury trial - affirm unless reasonable people could not have made that finding
Discretionary matters - abuse of discretion

No reversal required where error is harmless, that is, did not affect outcome of the case

Question 44

Judgement on the Pleadings with Affidavits

Answer 44

Under Rule 12(d), if matters outside the pleadings are presented to the court, and the court does not exclude them, the court must convert the motion to a motion for summary judgment, and must give the parties a reasonable opportunity to present all material pertinent to the motion.

Question 45

Admissions

Answer 45

Under Rule 36 of the Federal Rules of Civil Procedure, an admission may not be used against the admitting party in any other proceeding.

Question 46

Pretrial Conferences

Answer 46

The Federal Rules give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement. Moreover, this conference is to be attended by at least one of the lawyers for each side who will actually be conducting the trial, and by any unrepresented parties. A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference. Additionally, the court must require the disobedient party or counsel to pay expenses incurred (including attorneys’ fees) by other parties unless the court finds that circumstances make such an award unjust.

Question 47

Where Legal and Equitable Claims Exist

Answer 47

If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury’s finding on fact issues will bind the court in the equitable claim.

Question 48

Burden of Persuasion vs. Burden of Going Forward with Evidence

Answer 48

The burden of persuasion does not shift from party to party and is only a crucial factor when all the evidence is in. This burden is satisfied when the jury finds a party has been more persuasive in arguing his side of the issue than the other party.

The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved. If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant. Federal Rule 301 provides that a presumption imposes on the party against whom it was directed the burden of going forward with the evidence to rebut the presumption

Question 49

Jury Instructions Objections

Answer 49

In order to reserve its right to appeal an error in an instruction given or, as is the case here, a failure to give an instruction, a party must object on the record before the instructions are given. If adequately preserved, the instructions are reviewed using an abuse of discretion standard. However, if the objection is not made (and therefore not preserved for full appellate review), then the court’s review is limited to considering whether there was a plain error in the instruction that affected substantial rights.