Civil Procedure

Question 1

2 prong PJ Q

Answer 1

(1) statute (long-arm) or rule of court? (2) DPC? – “Due process requires minimum contacts between D and the forum such that it is consistent with traditional notions of fair play and substantial justice to sue D there.”

Question 2

General and specific jx

Answer 2

General (tag, consent, etc. - any claim, even if unrelated to D contacts) and specific (min contacts)

Question 3

Bulge provision

Answer 3

Allows service anywhere within 100 mi of federal courthouse in two situations: (1) impleading third parties and (2) joining necessary parties

Question 4

Supplemental jurisdiction

Answer 4

Allows a federal court with SMJ over a case to hear additional claims over which it would not have independently had SMJ if all of the claims constitute the same case or controversy (COMMON NUCLEUS OF OPERATIVE FACT)

Question 5

A counterclaim does not have to meet the $75k requirement if the counterclaim is…?

Answer 5

Compulsory - arises out of the same transaction or occurrence. Remember that if you don’t make compulsory counterclaims in the suit, you waive them (i.e., can’t bring a new suit for them against P later)

Question 6

Venue is proper in…

Answer 6

a judicial district where any D resides (if all D in same state), where stuff happened, or where the property is.

Question 7

Forum selection clause enforceability

Answer 7

Generally enforceable. SCOTUS: forum selection clauses should be given “controlling weight in all but the most exceptional cases,” even if the clause is UNENFORCEABLE under state law

Question 8

Service of process (general rule)

Answer 8

(1) to D personally, (2) leave at house with someone of suitable age who lives there, (3) agent.

Question 9

Service of process (foreign D)

Answer 9

Registered mail, return receipt requested. Also fine to serve under that country’s laws

Question 10

Service of process (corporations)

Answer 10

Pursuant to the Federal Rules of Civil Procedure (FRCP), service on a U.S. corporation may be effected either by delivering the summons and complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process, or by following state law in the state where the district court is located or where service is made. If a procedural issue in a diversity action is addressed by a valid federal law, then the federal law will be applied, even if a state rule or statute is in conflict.

Question 11

TRO

Answer 11

Preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a PI.

Lasts no longer than 14 days unless good cause exists. Moving party needs to show (1) immediate and irreparable injury and (2) why notice should not be required. Moving party must post bond to cover the costs of the TRO if it is issued in error.

Question 12

Preliminary injunction

Answer 12

(1) likely to succeed on the merits, (2) irreparable harm, (3) balance of equities favors movant, (4) best interest of the public. Movant has to provide bond to cover costs in case of wrongful grant.

Question 13

Well-pleaded complaint rule

Answer 13

Short + plain statement of SMJ, facts/claims, remedy requested

Question 14

Amendment of pleadings

Answer 14

(1) as of right, within 21d of service or (2) within 21d of D reply. After that, have to ask.

Question 15

Judgment on the pleadings

Answer 15

Parties agree entirely on facts and there are only questions of law in dispute. If ANY factual dispute –> SJ

Question 16

Answer must be served within ____ days of the service of the pleading to which it responds.

Answer 16

21

Question 17

Intervention as of right

Answer 17

Nonparty can intervene on timely motion if (1) interest in subject matter, (2) the disposition of the action would impair their interests, (3) the nonparty is not adequately represented by the existing parties.

Question 18

Cross-claim (test for allowing)

Answer 18

(1) same transaction or occurrence, (2) same factual or legal issues, (3) relevant.

Question 19

Permissive joinder

Answer 19

Same transaction/occurrence, common Q of law/fact, as long as joined party does not destroy diversity (if no fed Q)

Question 20

Compulsory joinder

Answer 20

Applies to necessary and indispensable parties.

A necessary party is a person whose participation in the lawsuit is necessary for adjust adjudication because absent that party, complete relief cannot be accorded to the existing parties; and the necessary party has an interest in the litigation which will be impeded if the litigation goes forward without that party (risk of prejudice to the absentee); or there is a substantial risk of double or inconsistent liability.

REMEMBER TRICK: J+S = NOT NECESSARY PARTY

Question 21

Rule and statutory interpleader

Answer 21

Interpleader is used to resolve competing claims to the same property. Rule: diversity + 75k. Statutory: min diversity + 500

Question 22

Impleader

Answer 22

D brings someone who is or may be liable to D for all or part of P’s claims against them. Within supplemental jx (use common nucleus), but P cannot make a claim against the impleaded party unless diversity is met.

Question 23

Class action requirements

Answer 23

Numerosity, commonality, typicality, adequacy

Question 24

Class actions: diversity v. CAFA

Answer 24

Diversity - named parties must be diverse from D, one P has >$75k

CAFA - >100 members, >$5m aggregate. Min. diversity

Question 25

Scope of discovery

Answer 25

Any non-privileged matter relevant to any party’s claim or defense in the action. Need not be admissible to be discoverable.

Excluded: documents + tangible things prepared in anticipation of litigation, unless substantial need + can’t get another way

Question 26

Failure to preserve electronically preserved information

Answer 26

A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation. If party intentionally made the information unavailable, court can presume that the information was damaging to the party.

Question 27

Summary judgment

Answer 27

A motion for summary judgment should be granted if the pleadings, discovery, and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the non-moving party. In ruling on a motion for summary judgment, the court is to construe all evidence in the light most favorable to non-moving party & resolve all doubts in favor of the non-moving party.

Question 28

JMOL

Answer 28

SJ after trial has started. Standard: viewing the evidence in the light most favorable to the other party, the evidence cannot support a verdict for that party, and the moving party is therefore entitled to judgment as a matter of law.

Question 29

Renewed JMOL

Answer 29

If make JMOL at end of evidence and court denies –> file for renewed JMOL. Standard is same as regular JMOL

Question 30

Motion for new trial

Answer 30

Legal errors, new evidence, misconduct by a lawyer/party/juror, judge concludes that verdict is against clear weight of evidence

Question 31

Interlocutory orders: appeals

Answer 31

Immediately as a matter of right, incl. orders granting or modifying injunctions and orders that modify property

Question 32

Collateral orders: appeals

Answer 32

The collateral order doctrine allows immediate appeal if the order conclusively determines the disputed question; resolves an important issue completely separate from the merits of the action; and is effectively unreviewable upon appeal

Question 33

Standards of review

Answer 33

De Novo - questions of law
Substantial evidence - facts (jury)
Clearly erroneous - facts (bench)
Abuse of discretion - judicial discretion

Question 34

Claim Preclusion

Answer 34

The doctrine of claim preclusion (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. For claim preclusion to apply, the claimant and the defendant must be the same (in the same roles) in both the original action and the subsequently filed action. Claim preclusion is limited to the parties (or successors in interest), similar action by a different party would not be precluded.

Question 35

Issue preclusion

Answer 35

The doctrine of issue preclusion (collateral estoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action. Other elements necessary for issue preclusion to apply are that (i) the issue sought to be precluded must be the same as that involved in the prior action; (ii) the issue must have been actually litigated in the prior action; (iii) the issue must have been determined by a valid and binding final judgment; and (iv) the determination of the issue must have been essential to the prior judgment.

Question 36

Replevin

Answer 36

Seizure of personal property in D possession that is transferred to P possession pending the outcome of the lawsuit

Question 37

Garnishment

Answer 37

Indebted assets are held by a third party until further judicial notice (usually wages)

Question 38

When does the judge HAVE to give proposed jury instructions?

Answer 38

Before closing arguments

Question 39

Discovery rule statement

Answer 39

1. Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action.
2. Information within the scope of discovery need not be admissible in evidence to be discoverable.
3. The test is whether the information sought is relevant to any party’s claim or defense.
4. In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.
5. Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

Question 40

Spoilation of evidence

Answer 40

Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence required for discovery.

If anticipate litigation –> duty to save stuff

Sanctions: Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery. In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.

Question 41

What can the court do if it finds that you spoiled evidence on purpose?

Answer 41

If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s use in litigation, then the available sanctions include (i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party; (ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or (iii) an entry of a default judgment against the party.

Question 42

When is offensive collateral estoppel allowed?

Answer 42

When the trial court says so - broad discretion for issue preclusion in general

Question 43

Raising insufficient service

Answer 43

if a party makes a pre-answer motion, the motion must raise the defense of insufficient service of process in the pre-answer motion, or the defense is waived. However, courts have generally allowed a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion. This is in line with the Federal Rules’ liberal policy with regard to amendments, and there would be no undue prejudice to the opposing party.

Question 44

Waiver of R12 defenses: effect if omitted from pre-answer motion

Answer 44

PJ, venue, service –> WAIVED if not in VERY FIRST MOTION

failure to state a claim, failure to state a legal defense, failure to join required party –> WAIVED if not in PRE-ANSWER, ANSWER, OR POST-ANSWER

SMJ –> NEVER waived