Civil Procedure

Question 1

Citizenship

Answer 1

Determines diversity for purposes of SMJ

• Individuals: state of domicile (residency with intent to remain)
• Corporations: both state of incorporation + principal place of business
• Partnerships and LLCs: domicile of each partner

Question 2

Amount in controversy

Answer 2

For diversity actions only: Must exceed $75,000

• Determined at the time action is commenced or moved to federal court
• Measured by a good faith estimate of damages, but excluding interests and costs
• May include punitive damages and attorneys fees if recoverable by contract/statute
• Aggregation:
  
  • By single P: multiple claims against 1 D or damages against joint tortfeasors
  • By multiple Ps: can aggregate only if enforcing a single right of common interest (i.e., a class)

Question 3

Removal

Answer 3

Defendant moves an action from state to federal court

• Generally allowed where it would have been proper for P to have brought in federal court (i.e., SMJ is satisfied).
• Exception: Any D is a citizen of the state in which the claim is filed

Question 4

Bases for in personam jurisdiction

Answer 4

• Presence: physically present and served with process
• Domicile: resides in the state with intent to remain (even if temporarily out-of-state)
• Consent: by an authorized agent to accept service of process, failure to timely challenge by motion to dismiss, voluntary appearance, or implied consent (e.g., filing a counterclaim)
• Long-arm statute: many states will have a statute authorizing PJ over non-residents who engage in activity or cause action to occur within the state. Permitted to the extent allowed by DPC.

Question 5

Personal Jursidiction Due Process Requirements

Answer 5

Rule: DPC requires sufficient minimum contacts between a party and the forum state so as not to offend traditional notions of fair play and substantial justice.

• Minimum contacts
  
  • Purposeful availment—purposeful and substantial contacts with the forum state
  • Foreseeability—D should reasonably anticipate being taken to court there
  • Relatedness—between cause of action and forum state (general or specific PJ)
• Fair play and substantial justice (fairness)
  
  • Interest of forum state
  • Burden on D to appear (convenience)
  • Interest in judicial efficiency
  • Shared interest of the states in promoting common social policies

Question 6

General vs. specific jurisdiction

Answer 6

General personal jurisdiction requires D to be

• Be domiciled in the state or
• Have continuous and systematic contacts with the forum state.

Specific personal jurisdiction is when the claim arises out of, or is closely related to, D’s limited contact with the forum state.

Question 7

Other types of personal jurisdiction

Answer 7

• In rem: action against real or personal property to settle property rights of all persons (property against the world)
• Quasi-in rem: May occur where a state lacks PJ over a defendant himself, but can exercise jx over his property, which can be seized to obtain a claim over D.

Question 8

Methods of service on individuals

Answer 8

• Personal “in hand” service
• Leaving at D’s usual place of abode with a person of suitable age and discretion who resides therein
• Delivering to D’s agent
• Other method authorized by state law
• Note: service by mail is limited to US government or persons outside of the US

Question 9

Methods of service on corporations and associations

Answer 9

• Delivering to an officer or agent of the corporation or association
• Delivering to an agent appointed or authorized by law to receive service
• Following state law in the state where the district court is located or where service is made
• Note: service by mail is limited to US government or persons outside of the US

Question 10

Service procedure

Answer 10

• Must comprise a summons and a copy of the complaint, and procedure must meet court rules.
• May be made by any nonparty who is at least 18 years old.
• Must occur within 90 days after P files the complaint.

Question 11

Waiver of service

Answer 11

• Method: P may send a form via first class mail or other reliable means, requesting D waive service by returning the form within a reasonable time limit (usually 30 days unless a foreign D)
• Effect of D’s waiver: extends the period to serve an answer to 60 days after the request was sent (normally 21 days)
• Note: OK to send or request waiver by mail, but service itself cannot be made by mail (absent state law permitting)

Question 12

12(b) Motions to Dismiss

Answer 12

Actions are waived if not raised in first responsive pleading, unless otherwise stated):

1. Lack of SMJ—can be raised at any time, even on appeal
2. Lack of PJ
3. Improper venue
4. Insufficient process
5. Insufficient service of process
6. Failure to state a claim—can be raised at any time through trial
7. Failure to join a necessary party—can be raised at any time through trial

Question 13

Proper venue

Answer 13

1. If all Ds reside in the same state: any district in which any D resides
2. Where a substantial part of the claims arose
3. If no other option: where the D is subject to PJ
4. D consents or waives by failing to object

• Note: Courts will generally follow forum selection clauses unless unreasonable/unjust or a result of fraud

Question 14

Transfer of venue

Answer 14

If original venue is proper, but inconvenient:

• D may move for transfer to another district where venue is also proper, and court may transfer based on:
  
  • Convenience to the parties and witnesses
  • Interest of justice
• D may move to dismiss or stay under forum non conveniens (FNC). Court may grant FNC based on:
  
  • Original venue is inconvenient AND
  • Convenience to parties, access to evidence, delay as a result of court congestion
  • Adequate alternative forum exists

If original venue is improper:

• D may move for transfer to another district where venue is also proper, and court must grant transfer.
• D may file a motion to dismiss for improper venue (12(b)(3))

Question 15

Choice of law (federal vs. state)

Answer 15

Rule: a federal court sitting in diversity will apply its own procedural rules but will apply the substantive law of the state in which it sits, unless a federal procedural rule is on point.

Test:

1. Is there an “arguably procedural” federal rule on point? If so, federal procedure law applies.
2. If not, is the issue integral to substantive rights/obligations?
   
   • Yes: apply state law
   • No: balance state and federal interests + consider likelihood of different outcome under federal law. If different outcomes are likely, apply state law (deters forum shopping)

Question 16

Substantive vs. procedural law (Erie)

Answer 16

• Substantive laws include (SERB)
  
  • Statutes of limitation (under Erie)
  • Elements of a claim or defense
  • Rules regarding choice-of-law
  • Burdens of proof
• Procedural laws include
  
  • FRE, FRCP
  • Whether attorney’s fees are assessed
  • Whether an issue is equitable or legal

Question 17

Complaint

Answer 17

The filing required to commence an action

• Notice pleading (normal): short and plain statement adequate to provide notice to the opposing party of enough facts to raise a plausible claim
• Heightened pleading (for fraud, mistake, special damages not reasonably anticipated): must plead with particularity

Note: P may join as many claims of whatever nature that P has against D (FRCP 18)

Question 18

Contents of a complaint

Answer 18

A short and plain statement, including:

1. Grounds for SMJ
2. Claim
3. Relief sought

Question 19

Response to a complaint

Answer 19

• Timing: D must answer or motion within 21 days of service (unless D waived service, in which case D has 60 days)
• Available responses:
  
  • Answer
  • MTD (12(b))
  • Motion for a judgment on the pleadings
  • Motion for a more definite statement
  • Motion to strike

Question 20

Components of an answer

Answer 20

• Admit or deny each assertion (or deny generally)
• Raise any affirmative defenses
• Compulsory counterclaims (arise from same transaction or occurence must be raised or else waived
• Permissive counterclaims (unrelated claims against same P but within court’s jx) may, but need not, be raised

Question 21

When are amendments to a pleading permitted?

Answer 21

• As of right:
  
  • When no response is required (e.g., answers): within 21 days of service
  • When a responsive pleading is required (e.g., motions): within 21 days of service of first of responsive pleading and 12(b) motion
• By leave of court when justice requires and no undue prejudice to opposing party

Question 22

Timing to respond to an amended pleading

Answer 22

14 days from date of amendment OR if time is left on original pleading

Question 23

When does relation back doctrine apply?

Answer 23

If SOL has run, the amended pleading will relate back to the date of the original pleading if it involves the same transaction or occurrence and provides notice to the opposing party.

• Adding a claim: will relate back if the claim arose from the same transaction or occurrence (notice already satisfied)
• Changing a party:
  
  • Must involve the same transaction or occurrence and
  • The party must know or have reason to know the action should have been brought against him but for mistake of identity and
  • Party must be notified within 90 days of filing original complaint such that he will not be prejudiced in defending on the merits

Question 24

Certification by attorney of record (FRCP 11)

Answer 24

• Signature: every pleading, written motion, or paper filed must be signed by attorney of record (or pro se party)
• Certification: signer certifies
  
  • Filing was made after reasonable inquiry
  • Filing was made for proper purpose (i.e., not to harass D)
  • Legal basis and evidentiary support of the claim (can be on information and belief)

Question 25

Initiating Sanctions (FRCP 11)

Answer 25

• By opposing party’s motion
  
  • Motion for sanctions must be separate from other motions
  • Service in conformity with FRCP 5 (ok to mail to party’s address, leave with court clerk)
  • Opposing party has 21 days to withdraw or correct challenged pleading before motion is filed with the court
• By the court on its own initiative (sua sponte)
  
  • Party being sanctioned must show why conduct has not violated FRCP 11.

Question 26

Liability for sanctions under FRCP 11?

Answer 26

• Court may, at its discretion, impose sanctions on attorneys, law firms, and parties for violations of FRCP 11
• Law firms are generally jointly responsible for violations committed by its partners, associates, or employees

Question 27

Types of sanctions (FRCP 11)

Answer 27

• Nonmonetary directives
• An order to pay a penalty into court
• If imposed on motion and warranted for effective deterrence, an order directing payment to the movant for part or the entirety of reasonable attorney’s fees and other expenses directly resulting from the violation

Note: Sanctions are limited to those that will suffice to deter similar conduct in the future

Question 28

Joinder of parties

Answer 28

Generally—the requirements of SMJ, PJ, and venue must be met to join a party

• Permissive joinder (FRCP 20): a party may join if her claim arises from the same transaction and occurrence and raises a common question of law or fact unless joining the party would destroy diversity
• Compulsory joinder (FRCP 19):
  
  • Necessary party (19(a)): a party whose joinder is necessary for a just adjudication will be joined if feasible, unless the party would destroy diversity
  • Indispensable party (19(b)): if a necessary party cannot be joined because of jurisdictional or venue concerns, then the court may decide to dismiss the action.

Question 29

Intervention (FRCP 24)

Answer 29

• Occurs when a nonparty files a motion to join the lawsuit:
  
  • As of right: nonparty has an interest in the subject matter that is not adequately represented and it will be impaired unless the nonparty is allowed to intervene
  • Permissive: nonparty’s claim or defense has a common question of law or fact with the pending claim; allowed within the discretion of the court considering prejudice to the parties
• Intervenor must have independent basis for SMJ; supplemental jurisdiction does not apply if the case is based on diversity jurisdiction.

Question 30

Impleader

Answer 30

• Occurs when D joins a nonparty based on a claim of indemnity or contribution:
  
  • Personal and subject matter jurisdiction must be satisfied;
  • Supplemental jurisdiction is available if the claim arises from the same transaction and occurrence
  • Nonparty may also join related claims and defenses against P and D

Question 31

Interpleader

Answer 31

• Occurs when a person holding a property (“stakeholder”) joins all potential claimants in one suit
  
  • Under FRCP 22: court must have SMJ, PJ, and proper venue over all parties
  • Under Federal Interpleader Act (§ 1335): Jx requirements lowered, need only 2 diverse parties and $500 in controversy

Question 32

Class Action Requirements

Answer 32

• Requirements (CANT):
  
  • Commonality: Question is common to class members
  • Adequacy: Class representative will adequately represent class (interests align)
  • Numerosity: Too many classmembers for practicable joinder (presumed if >40 members)
  • Typicality: Rep’s claims/defenses are typical of those in the class
• Justifications (PErCq—need one):
  
  • Prejudice: separate actions would create a risk of inconsistent results of impair unnamed parties
  • Equitable Relief: injunctive or declaratory relief is appropriate for the class as a whole
  • Common Q dominates: Common Q of law or fact predominates over individual issues, making class action superior to other methods of adjudication
  • Note: All members must have notice and opportunity to opt out

Question 33

Class Action Diversity

Answer 33

• Under FRCP 23: complete diversity of citizenship of named class members
• Under CAFA: minimum diversity is sufficient (any plaintiff is diverse with any defendant)

Question 34

Mandatory disclosures

Answer 34

Must be produced without request

• Initial disclosures:
  
  • Names and addresses of persons with discoverable information
  • Copies or descriptions of documents and items
  • Computation of damages and insurance agreement(s)
• Expert disclosures: qualifications, publications, compensation, and basis for opinion
• Pretrial disclosures: list of all witnesses and exhibits to be used at trial

Question 35

Scope of discovery

Answer 35

Generally, any non-privileged matter relevant to a claim or defense is discoverable, proportional to the needs of the case. Party generally may not seek discovery until after the discovery conference (FRCP 26(f)).

• Exceptions
  
  • Privileged information
  • Work product
  • Experts retained in anticipation of trial but not expected to testify
  • Protective order—may be granted for good cause to protect against embarrassment or undue burden

Question 36

Discovery devices

Answer 36

• Depositions:
  
  • Allowed any time after initial disclosures
  • Each side is limited to 10 depositions of 1 day in duration (cannot depose same person twice) unless otherwise ordered by the court
  • Parties must be given notice; witnesses must be subpoenaed to appear
  • Written depos exist, but oral is much more common
• Interrogatories
  
  • Up to 25 questions
  • Can only be sent to a party
• Requests for admission
• Requests for production
  
  • Must be described with particularity
  • Applies to documents and land under the control of a party
  • Can be sent to a non party only with subpoena
• Physical and mental examinations
  
  • Allowed if physical or mental condition of a party (not witness) is at issue
  • Court order is required, granted only after showing of good cause

Question 37

Methods of discovery enforcement

Answer 37

• Motion to compel (prerequisite to seeking sanctions unless complete failure to cooperate)
  
  • Grounds include evasive, incomplete, or nonexistent disclosure
  • Must certify an attempt in good faith to obtain the discovery
  • Fees and expenses are recoverable if the motion is granted
• Sanctions
  
  • Immediate sanctions available upon complete default of a party to attend her deposition, respond to a request for interrogatories, or to produce and permit inspection
  • After a motion to compel, the court may award sanctions including:
    
    • Disallowing the evidence
    • Directing the matter as established
    • Striking the pleadings
    • Dismissing the action in whole or part
    • Staying the proceedings until the order is obeyed

Question 38

Temporary Restraining order

Answer 38

An urgent order to stop conduct for a short time in order to preserve the status quo pending a preliminary injunction hearing

• Can be issued ex parte
• No longer than 14 days
• Payment of a security bond is required
• Elements:
  
  • Immediate irreparable harm will result prior to hearing the adverse party’s opposition
  • Certification of any efforts made to give notice and the reason why notice should not be required

Question 39

Preliminary Injunction

Answer 39

To preserve the status quo pending trial

• Payment of a security bond is required
• D is entitled to notice and an opportunity to be heard prior to issuance
• Elements:
  
  • A likelihood P will succeed on the merits
  • Immediate irreparable harm for which there is no adequate remedy at law
  • Balance of the hardships on both sides and considering the public interest favors P
  • Feasibility of enforcement vs. difficulty of supervision
    
    • A negative injunction (an order to refrain from conduct) is easier to enforce

Question 40

Permanent Injunction

Answer 40

Granted after P has achieved success on the merits

• No security bond required
• Elements are the same as for a Preliminary Injunction:
• Immediate irreparable harm for which there is no adequate remedy at law
• Balance of the hardships on both sides and considering the public interest favors P
• Feasibility of enforcement vs. difficulty of supervision
  
  • A negative injunction (an order to refrain from conduct) is easier to enforce

Question 41

Types of adjudication without trial

Answer 41

• Judgment on the pleadings
• Default judgment
• Dismissal
• Summary judgment

Question 42

Judgment on the pleadings

Answer 42

Occurs when the pleadings fail to show a dispute. Rare.

Question 43

Default judgment

Answer 43

Occurs when a party has failed to plead or defend an action (i.e., D fails to respond to P’s complaint)

• P shows by affidavit that D failed to respond/plead
• Clerk enters default against the party
• Plaintiff may then seek a default judgment
• An entry of default may be set aside for good cause

Question 44

Dismissal

Answer 44

• Voluntary dismissal: P may dismiss once before a responsive pleading or motion by D; P can also request dismissal by motion asking for a court order
  
  • Usually without prejudice
• Involuntary: dismissal by the court if P fails to comply
  
  • With prejudice

Question 45

Summary judgment

Answer 45

Standard: There is no genuine issue of material fact thereby entitling the moving party to judgment as a matter of law.

• Motion may be filed up until 30 days after the close of discovery
• Court will construe all evidence in the light most favorable to the nonmoving party
• Evidence considered includes discovery (e.g., depositions and interrogatories) and affidavits, so long as the facts are admissible at trial

Question 46

Determinations by jury

Answer 46

• Guaranteed under the 7A for a civil action at law (e.g., money damages) but not for an action in equity (e.g., specific performance).
• If legal and equitable claims present, legal claims should be tried to jury first, and then court will hear equitable claims.

Question 47

Judgment as a matter of law (JMOL)

Answer 47

• Motion for JMOL (“Directed Verdict”)
  
  • Standard: The evidence could not support a contrary verdict thereby entitling the moving party to judgment as a matter of law.
  • Akin to motion for summary judgment but made after P’s case and again at close of evidence
  • Court will construe all evidence in the light most favorable to the nonmoving party
• Renewed motion for JMOL (formerly JNOV)
  
  • If a motion for Judgment as a Matter of Law (JML) was filed and the jury returned a contrary verdict, the party may file a renewed motion—filing a motion for JML is a prerequisite
  • The renewed motion must be filed within 28 days after the entry of judgment.

Question 48

Motion for a new trial

Answer 48

• Motion for new trial must be made within 28 days after the entry of judgment
• Whether a new trial is granted is within the discretion of the court. Grounds for a new trial include:
  
  • Trial error resulting in an unfair judgment
  • Newly discovered evidence (could not have been discovered earlier despite reasonable diligence)
  • Prejudicial misconduct by counsel, parties, judge, or jury
  • Verdict is excessive or inadequate
    
    • Remittur: Judge offers choice of new trial or lower award if he believes jury’s compensatory damages are so excessive as to “shock the conscience” (or in diversity case, meets state standard for excessiveness)
    • Additur: not allowed in federal court, so only option is for judge to order a new trial
  • Harmless error rule: the court will disregard errors that do not affect the party’s rights
  • Grant of a new trial must include reasons for the order.

Question 49

Appellate standards of review

Answer 49

• Matters of law: de novo
• Findings of a jury: supported by substantial evidence
• Factual findings by a judge: clearly erroneous
• Mixed questions of law and fact: de novo review / clearly erroneous review if factual issues predominate
• Discretionary matters: abuse of discretion

Question 50

Relief from judgment

Answer 50

Awarded when enforcement of a judgment would cause injustice

• Filed within a reasonable amount of time (up to one year following entry of judgment).
• Grounds:
  
  • Mistake, inadvertence, surprise, excusable neglect
  • Newly discovered evidence that could not have been discovered earlier with reasonable diligence
  • Fraud (intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party
• Exception: no definite time limit for special grounds (e.g., judgment is void or based on a vacated judgment)

Question 51

Full Faith and Credit Clause

Answer 51

• State courts must give full faith and credit to valid final judgments of other state courts and federal courts
• Federal courts must give full faith and credit to valid final judgments of state courts

Question 52

Interlocutory orders reviewable as of right

Answer 52

• Injunctions
• Appointments of receivers
• Orders affecting possession of property
• Certain claims arising under federal law(admiralty, patent infringement)

Question 53

Collateral order rule

Answer 53

• A court of appeals may hear and rule on an interlocutory district court order if it:
  
  • Conclusively determines the disputed issue,
  • Resolves an important issue that is completely separate from the merits of the case, and
  • Is effectively unreviewable on appeal from final judgment (i.e., the disposition of that order affects the remaining cause of action)
• Example: an order that imposes on the defendant 90% of the cost of notifying members of a class

Question 54

Appeal requirements

Answer 54

• Notice must be filed within 30 days after the judgment or order is entered
• Only a final judgment on the merits can be appealed. Exceptions:
  
  • Collateral order rule
  • Interlocutory orders appealable as a matter of right
  • Discretionary interlocutory reviews if both district court and appellate court approve

Question 55

Res judicata

Answer 55

AKA claim preclusion. Applies when a final judgment on the merits precludes the parties from litigating the same claims again.

• Elements:
  
  • Valid: court had PJ and SMJ and afforded due process to the defendant
  • Final judgment: there is nothing further to do but enter the judgment
  • On the merits: not on technical grounds (e.g., not procedural)
  • Same cause of action: new cause of action must be sufficiently identical to the original cause of action (arising from the same transaction or series of transactions)
  • Same parties (or privies): parties are the same as before (or successors)

Question 56

Collateral estoppel

Answer 56

AKA issue preclusion: applies when a final judgment on the merits precludes relitigation of issues that were necessarily determined in an earlier claim

• Elements:
  
  • Valid final judgment on the merits
  • Same issue: the relevant facts and applicable law (but not parties) must be identical
  • Actually litigated: actually and necessarily decided, e.g., not from a default judgment
  • Essential to the judgment: necessary to the decision
• Due Process limitations
  
  • Mutuality: can only be used against or by one who was a party (or in privity with a party) to the earlier claim
  • Nonmutual use: when issue preclusion is used by a party in the later claim who was not a party in the earlier claim:
    
    • Defensive use: new D asserting P’s loss to earlier D
      
      • Allowed whenever used against a P who had a full opportunity to litigate in the earlier case
    • Offensive use: new P asserting D’s loss to earlier P
      
      • Permitted at the court’s discretion
      • Consider fairness factors: if P could have joined in the earlier action, D had incentive to litigate, prior judgments were inconsistent, new procedural opportunities not available to D in first suit

Question 57

Factors for finding that a party is indispensible

Answer 57

• The extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties;
• The extent to which any prejudice could be reduced or avoided by protective provisions in the judgment, shaping the relief, or other measures;
• Whether a judgment rendered in the person’s absence would be adequate; and
• Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder

Question 58

Requirements under CAFA (Class Action Fairness Act)

Answer 58

• Requirements:
  
  • 100+ members
  • >$5M in controversy
• Exceptions: No federal court jurisdiction under CAFA if
  
  • Primary Ds are states, state officials, gov’t entities;
  • Action relates to affairs of a corporation and is based on laws of state of incorporation; or
  • Action solely relates to federal securities laws

Question 59

Jury selection

Answer 59

• Each side has three peremptory challenges (but no elimination based on race or gender is allowed)
• Unlimited challenges for cause

Question 60

Demand for jury trial

Answer 60

• Demand:
  
  • Must be in writing and served within 14 days after service of the answer or other pleading directed at the issue;
  • Must specify the issues for which a jury is demanded;
  • May be withdrawn with the consent of the other parties

Question 61

Jury size

Answer 61

• Must consist of at least six and no more than 12 members;
• Juror may be dismissed for good cause (e.g. illness) without mistrial, so long as 6+ participate in verdict
• No federal provision for alternate jurors

Question 62

Jury instructions

Answer 62

• Parties file proposed instructions at the close of evidence;
• Objections must be raised before delivery

Question 63

Uninamity of jury

Answer 63

Verdict must be unanimous, unless parties agree otherwise.