Civil Procedure

Question 1

Diversity of citizenship and counterclaims

Answer 1

A compulsory counterclaim (a claim that arises out of the same transaction or occurrence as the plaintiff’s claim) does not need to meet the jurisdictional amount requirement for diversity jurisdiction.

A permissive counterclaim (a claim that arises out of an unrelated transaction) must meet the jurisdictional amount requirement.

Question 2

Joint tortfeasors subject to joint and several liability are not “indispensable parties”

Answer 2

Remember husband wife hypo

Question 3

Service on foreign parties

Answer 3

1. Under Rule 4, service on a foreign corporation may be made in accordance with international treaty.
2. If there is no treaty, service on a corporation may be made
   
   1. in accordance with the foreign country’s laws
   2. as the foreign authority directs in response to a letter request for guidance
   3. by having the clerk mail process to the defendant, with a signed receipt requested, or
   4. by any other means not prohibited by international agreement as the court may order.

Question 4

Constitutional requirement of service of process

Answer 4

Service of process must be reasonably calculated, under all circumstances, to apprise interested parties of the action.

Question 5

Work Product Doctrine + Discovery

Answer 5

Definition: Trial preparation material which is prepared in anticipation of litigation. It need not be generated by a lawyer. It can be produced my a party themselves

Absolute: opinion work product is absolute, and it consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party and cannot be discovered.

Qualified: work product may be discovered if the requesting party can show (1) substantial need and (2) undue hardship in obtaining the materials in an alternative way.

Question 6

Scope of discovery in general

Answer 6

A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case. It need not be admissible to be discoverable. THE COSTS of discovery and the needs of the case will be considered as well.

• “discovery may be had of any matter not privileged that is relevant to the claim or defense of any party, including the identity of persons having knowledge of relevant facts.”
• If the information is irrelevant to the current case, the court will make an in camera inspection of the file and redact out any information that tis irrelevant.

Question 7

Discovery of opinions of non-testifying experts (consulting experts)

Answer 7

The opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested

Question 8

Motion for judgment on the pleadings

Answer 8

**A party making a motion for judgment on the pleadings and accompanying it with an affidavit or other matters outside the pleadings may in reality be making a motion for summary judgment, putting the wrong label on the motion.

Question 9

Common question class action

Answer 9

In a “common question” class action, a judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt out.

Question 10

Pre-trial conferences

Answer 10

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 11

Rule 11 Sanctions

Answer 11

In signing a pleading, the attorney represents, among other things, that he has made a reasonable inquiry into the factual and legal grounds for the pleadings. Here, had the attorney performed any sort of research into the matter, he would have discovered the unusually short statute of limitations period and that, as a result, the plaintiff did not have a valid cause of action. Thus, the attorney violated Federal Rule 11, and he may be sanctioned.

Question 12

Interlocutory Orders

Answer 12

interlocutory orders are typically not immediately reviewable on appeal until a final order is made, unless they meet one of the exceptions permitting an appeal as of right (i.e., orders granting injunctions; orders appointing a receiver; orders in admiralty cases finding liability but leaving damages to be assessed later; patent infringement orders where only an accounting is ordered; and orders affecting or changing possession of property)

Question 13

Interlocutory Appeals Act

Answer 13

The Interlocutory Appeals Act allows appeal of a non-final order if:

1. The district judge certifies that it involves a controlling issue of law;
2. As to which there is substantial ground for difference of opinion; and
3. The court of appeals agrees to hear it.

Question 14

Collateral Order Doctrine

Answer 14

The appellate court has discretion to hear an appeal on an issue if that issue:

Is distinct from the merits of the case;

Involves an important legal question; and

Is essentially unreviewable if parties await a final judgment.

Ex: default judgments that are procedurally or constitutionally defective are subject to collateral attack

Question 15

Mixed equitable legal suit w/ common questions of law and fact

Answer 15

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.

Question 16

Dismissals for want of prosecution

Answer 16

On the merits IF says with prejudice. Otherwise, court has discretion to designate otherwise, meaning that it doesn’t have to ban another claim.

Question 17

On the merits

Answer 17

Unless the court said the judgment was “without prejudice” when entered, any judgment is “on the merits” unless it was based on a lack of jurisdiction (both personal and subject matter), improper venue, or a failure to join an indispensable party.

Question 18

Issue preclusion and due process

Answer 18

Due process requires that issue preclusion may be asserted only against someone who was a party (or in privity with a party) to the previous case (the case in which the issue was actually litigated and determined)

Who issue preclusion is being used by is a different issue. (NMOCE, NMDCE).

Question 19

NOMCE

Answer 19

Person USING preclusion was not party to case 1 and is PLAINTIFF in case 2.

courts have been very reluctant to permit a nonparty to use issue preclusion to aid him offensively (as a plaintiff) to obtain relief, the Supreme Court has upheld its use offensively by a nonparty where it was fair and equitable to do so.

Question 20

Service of Process (SAID)

Answer 20

Federal Rules of Civil Procedure [Rule 4], service of process can be made by:

(i) personal service,
(ii) service left at the defendant’s usual place of abode with one of suitable age and discretion residing therein, or
(iii) service upon an authorized agent of the defendant. Alternatively, service may be made under

state rules or

by mail under the waiver of service provision of Rule 4(d).

if no acknowledgment is made to a summons and complaint that was improperly served via first class mail, a defendant must be served according to the Federal Rules of Civil Procedure. If not, it is considered “procedurally defective” and is therefore subject to a collateral attack. Here, because service by first class mail is insufficient under the Federal Rules, the truck driver may collaterally attack the default judgment arguing insufficient service of process.

Question 21

Motion to compel

Answer 21

If requesting attorney has attempted in good faith to resolve the dispute, the court must order the bus company to produce the report and pay the passenger’s reasonably costs in making the motion.

Question 22

FEDERAL INTERPLEADER ACT

Answer 22

The Federal Interpleader Act provides special rules for dealing with subject matter jurisdiction, personal jurisdiction, and venue.

Under the act, interpleader can be brought if any two claimants are citizens of different states and the amount in controversy is $500 or more. Complete diversity is not required. Here, the mother is a State B resident, and the former girlfriend is a State A resident. Thus, both claimants are diverse from one another, and the $70,000 amount in controversy exceeds the $500 minimum.

Question 23

Rule 56(d)–summary judgment–discovery required

Answer 23

If non-moving party shows by affidavit or declaration that he cannot present facts essential to justify his opposition to the SJ motion, Rule 56(d) authorizes him to ask for a court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery

Question 24

What must a judge do with findings of fact and conclusions of law?

Answer 24

Under Federal Rule of Civil Procedure 52, the judge’s findings of fact (and conclusions of law) may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.

Question 25

Motion to strike a defense

Answer 25

Before responding to a pleading or, if no responsive pleading is permitted, within 21 days after service of the pleading, a party may move to have stricken any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter. Since the prior lawsuit is irrelevant to the current lawsuit, the purchaser should move to strike the defense.

*if asked what the P’s best move is, choose strike rather than reply to deny the allegations.

Question 26

Discovery of Expert Witnesses who “may” testify

Answer 26

Must include:

1. identity
2. written report that includes
   
   1. opinions that the EW will express
   2. bases for the opinions
   3. the facts used to form the opinions
   4. the EW’s qualifications; and
   5. how much the EW is being paid.

May depose-best practice is to subpoena

Failure to disclose: if party fails to disclose above material, cannot use EW in the case unless the failure was justified or harmless.

Question 27

Required Initial Disclosures

Answer 27

Parties must disclose these without the other party even asking.

1. identities of persons with discoverable information that hte party may use to support her claims or defenses
2. Documents and things that the party may use to support her claims and defenses
3. computation of relief + supporting docs/ESI
4. Insurance coverage

If fails to disclose these, can’t use unless justified or harmless.

Question 28

Use of depositions

Answer 28

• Impeach defendant
• for any purpose if deponent is an adverse party
• for any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence.

Question 29

Discovery Sanctions

Answer 29

Partial response to discovery:

1. good faith attempt to resolve issue (meet and confer)
2. requesting party moves for an order compelling producing party to answer
3. if party violates order, court enters merits sanctions.

No response at all to discovery requests:

1. Good faith attempt
2. immediate merits sanctions

If bad faith, may dismiss P’s case or enter default j against defendant.

Question 30

Motion to set aside default or default judgment

Answer 30

must show (1) good cause, or (2) viable defense.

Question 31

Issue Preclusion

Answer 31

1. Same issue
2. Actually litigated
3. Essential to judgment
4. Due process: can only be used against party who was in first case.

Non-mutuality asks who is USING it

• plaintiff is using it and wasn’t a party in prior case: NMOCE
  
  • Parkland Hoisery fairness factors:
    
    • did defendant have full and fair opportunity to litigate, strong incentive to litigate?
    • did party asserting issue preclusion have an easy opportunity to join case 1?
    • there have been no inconsistent findings on the issue? (if inconsistent, no fair to use prior judgment coming out one way to preclude).

Question 32

JNOV

Answer 32

Standard: no reasonable jury could find for the opposing party.

Can be renewed after judgment BUT MUST BE ON SAME GROUNDS.

Question 33

New trial

Answer 33

A new trial may be granted if based on serious error.

• The judge gave an erroneous jury instruction;
• error in admission of evidence;
• New evidence was discovered that could not have been discovered before with due diligence;
• Misconduct was committed by a juror, party, or lawyer, etc.;
  
  • Ex: jurors were bribed, or based the verdict on their investigation of matters outside of court instead of the evidence at trial
• The judgment is against weight of the evidence (serious error of judgment); and
  
  • judge may not replace their judgment with that of the jury.
• Damages are inadequate or excessive.

Note: this is a less drastic standard than JNOV because the same party might still win on retrial.

Question 34

Transfers from happy court

Answer 34

1. To transfer venue, the court must determine whether venue has been properly laid, and, if so, whether any basis for transfer exists
2. Under Erie doctrine, a federal court sitting in diversity must apply substantive state law, but it will apply federal procedural law.
3. Venue (typically) is a purely procedural matter that is exclusively determined by federal laws.
4. Under the venue statutes, when venue in the original action is proper, the federal court, in the interests of justice, may transfer the case for the convenience of the parties and witnesses to another venue in which the action might have been brought (go through venue, personal jurisdiction, SMJ analysis), OR to which the parties have consented
   
   1. if FSC, should usually transfer
   2. will weigh public and private factors
      
      1. Public: what law applies, what community should be burdened by jury service, desire to keep a local controversy local
      2. Private: personal convenience, where evidence and defendants are found.

Question 35

Forum Selection Clauses

Answer 35

1. The presence of an FSC does not make venue in another state “improper”
2. Normally, federal courts should ordinarily transfer the case to the forum specified in that clause.
3. Only under extraordinary circumstances unrelated to the convenience of the parties should a section 1404(a) motion be denied when there is a valid forum selection clause. ONLY PUBLIC INTEREST FACTORS CONSIDERED
   
   1. what law applies
   2. what community should be burdened with jury service
   3. desire to keep local action local
4. Public interest factors will rarely oust parties’ choice of forum in a forum selection clause.
5. If court does transfer in compliance with a FSC, the law of the forum re the FSC applies–even if the original forum was acceptable.

Question 36

TEST: Should a court transfer venue to venue agreed upon in FSC?

Answer 36

Step 1: discuss whether venue was proper in the state can was brought in

Step 2: discuss standards regarding venue transfers GENERALLY

1. Under the venue statutes, when venue in the original action is proper, the federal court, in the interests of justice, may transfer the case for the convenience of the parties and witnesses to another venue (1) in which the action might have been brought (go through venue, personal jurisdiction, SMJ analysis), OR (2) to which the parties have consented

Step 3: Discuss how courts will address venue when there was a FSC

1. Presence of FSC doesn’t make venue improper, per se
2. However, ordinarily courts will transfer to forum which parties agreed to, unless, and REGARDLESS OF CONVENIENCE TO PARTIES, public interest factors apply:
   
   1. what law applies
   2. what community should be burdened with jury service
   3. desire to keep local action local
3. Usually public interest factors will not prevent transfer to forum agreed upon.

Step 4: Discuss if it meets prong 1 of venue transfer (might have been brought)

1. SMJ
2. personal j
3. venue

Step 5: Discuss FSC

1. Public factors analysis-do they apply?

Step 6: Conclude

Question 37

Permissive Joinder

Answer 37

Parties may be joined as plaintiffs and defendants whenever:

1. some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrence; AND
2. there is a question of law or fact in common to all the parties.

Question 38

Transfers from Sad Court

Answer 38

If the original district is an improper venue, the court may (1) transfer in the interest of justice or

(2) dismiss.

Usually, the court will transfer if possible. (For example, a federal district court can easily transfer the case to another federal district court.) When the federal court transfers a diversity case because the original venue is improper, the transferee applies its own choice of law rules, that is, the choice of law rules of the state in which it sits, and not the choice of law rules of the transferor court. The plaintiff doesn’t benefit by filing in an improper forum.

Question 39

Forum Non Conveniens

Answer 39

1. FNC applies when there is another court that is the center of gravity of the case
2. However, court may not transfer to a different judicial system–it must either (1) hold the case in abeyance, or (2) dismiss
3. When considered whether to dismiss or stay, it will consider public factors and private factors like in venue cases
4. It will also consider if the other court is ADEQUATE
   
   1. usually it will be adequate unless plaintiff cannot get recovery there

Question 40

Compulsory Joinder

Answer 40

Step 1: Court will ask:

(1) without this party, can we award complete relief among the existing parties; or
(2) will the nonparty’s interests in the litigation be harmed if not joined; or
(3) subject to risk of multiple obligations?

If yes, Step 2:

Can the absentee be joined? (check for personal jurisdiction, service of process)

If no, Step 3:

Can the action proceed in good conscience without the absentee?