Civil Procedure

Question 1

Subject Matter Jurisdiction

Answer 1

— subject matter jurisdiction is the court’s power over the subject matter of the lawsuit.
In federal court, subject matter jurisdiction can be based on:
(1) a federal question properly pleaded in the complaint; or
(2) diversity of citizenship.

Question 2

Federal Question Jurisdiction

Answer 2

Exists when the claim arises under
(a) federal law,
(b) the U.S. Constitution, OR
(c) U.S. treaty.

Question 3

Well-Pleaded Complaint Rule

Answer 3

— the federal question must be integral (i.e., part and parcel) to plaintiff’s cause of action, as revealed by plaintiff’s properly pleaded complaint (i.e., what one would naturally and appropriately plead in a complaint).
◦ Not Sufficient
▪ Anticipatory Defense — it does not suffice for federal question jurisdiction if the plaintiff anticipates a defense based on a federal statute.
▪ Artful Pleadings — federal questions not integral to the claim will not suffice.
▪ State Laws Incorporating Federal Standards — a state statute that has incorporated a federal standard (e.g., state tort laws) arises under state law, not federal law.

Question 4

Diversity of Citizenship Jurisdiction

Answer 4

— for diversity of citizenship jurisdiction, plaintiff must (1) show complete diversity and (2) satisfy the amount in controversy (AIC) requirement.

Diversity Determined at Commencement of the Action

Question 5

Domicile of Individuals

Answer 5

— citizenship of natural persons is based on domicile, not residence. A person’s domicile is where she has her true, fixed, and permanent home. You must have:
(1) presence; and
(2) intent to remain for the indefinite future.

Question 6

Domicile of Corporations

Answer 6

— a corporation is a citizen of the state where it is (1) incorporated and of the state where it has its (2) principal place of business . Corporations may have more than one citizenship.
• Principal Place of Business = Nerve Center — a corporation’s principal place of business is presumed to be the place of the corporation’s “nerve center” from where its officers conduct the corporation’s important business.

Question 7

Domicile of Unincorporated Associations

Answer 7

— you must consider the citizenship (i.e., domicile) of all individual members. Obviously, this means it is more difficult for unincorporated associations (e.g., partnerships or LLCs) to sue or be sued in federal court under diversity jurisdiction.

Question 8

Diversity Jurisdiction of a Large Class Action

Answer 8

– exists when:
1) Amount in controversy exceeds $5 million;
2) At least 100 class members; AND
3) Minimal diversity is present – if any member of the plaintiff class is a citizen of a State different from any defendant.

Question 9

Limits on Class Action Diversity Jurisdiction

Answer 9

− Court MAY decline to exercise jurisdiction when non-diverse members are greater than 1/3 and less than 2/3 of the total class.

− Court MUST decline to exercise jurisdiction when non-diverse members are greater than 2/3 of the total class.

Question 10

Class Action Jurisdiction DOES NOT apply

Answer 10

a) If the primary D’s are States, State officials, or other govt. entities that the court is foreclosed from ordering relief;
b) If less than 100 class members; OR
c) In class actions involving securities or corporate fiduciary claims.

Question 11

Amount in Controversy (AIC)

Answer 11

> $75,000 — to meet the AIC requirement, plaintiff must have a good faith claim exceeding $75K exclusive of interests and costs.
◦ Good Faith Requirement — the party seeking to invoke federal diversity jurisdiction does not have to prove that the amount exceeds $75,000, but must only show that there is some possibility of recovering this amount.

Question 12

AIC Aggregation

Answer 12

— in certain situations, a plaintiff may add claims together to satisfy the amount in controversy requirement.

▪ Multiple Plaintiffs = No — each plaintiff must have claims totalling more than $75K.
• Exception = Joint Interest — e.g., A and B jointly own Blackacre and the defendant trespasses. A and B each claim $40K in damages.

▪ Single Defendant = Yes — a plaintiff who has multiple claims against one defendant may aggregate the claims to meet the amount in controversy requirement.

▪ Multiple Defendants = No — a plaintiff may not aggregate claims against multiple defendants. The amount in controversy requirement must be met against each defendant individually.

Question 13

Domestic Relations Exception

Answer 13

even if there is diversity jurisdiction, a federal court will not hear cases involving divorce, alimony, child custody, or probate of estate.
◦ Divorce
◦ Alimony
◦ Child Custody; OR
◦ Probate of Estate

Question 14

Equitable Relief

Answer 14

— equitable relief, such as an injunction, may be valued by either the
(1) value of the harm to plaintiff; or
(2) cost of compliance for defendant.

Question 15

Supplemental Jurisdiction

Answer 15

1. Effect — supplemental jurisdiction allows a federal court to hear claims (not cases) over which it does not have an independent basis for subject matter jurisdiction (e.g., state law claims). Supplemental jurisdiction gets non-federal and non-diversity claims into federal court.

   
   2. Test = “Common Nucleus of Operative Fact” — the claim must share a “common nucleus of operative fact” with the claim that initially satisfied federal subject matter jurisdiction and got the case into federal court.

      ▪ Same Transaction or Occurrence = YES — the test is always satisfied if the additional claims arise out of the same transaction or occurrence.

Question 16

When may a federal court decline to exercise supplemental jurisdiction?

Answer 16

a) State Law Claim Predominates;
b) Complex Claim of State Law;
c) Original Claim Dismissed; OR
d) Other Compelling Reasons or Exceptional Circumstances.

Question 17

Abstention Doctrine

Answer 17

Federal courts MAY abstain from hearing a case when it would intrude upon the powers of another court. Additionally, a court may stay a case arising from ambiguous state law to await the outcome of a pending state court case.

Question 18

4 Abstention Doctrines

Answer 18

Pullman Doctrine- cases that arise from unsettled areas of state law.

Younger Doctrine- cases that would interfere with state judicial proceedings.

Colorado River Doctrine- when there are parallel state and federal litigations pending.

Burford Doctrine- only appropriate if federal adjudication would interfere with a state’s administration of a complex regulatory scheme.

Question 19

In Personam

Answer 19

— jurisdiction based on power over the particular defendant (e.g., person or entity). More specifically, a court’s power to bring a person or entity into its adjudicative process.

Question 20

In Rem

Answer 20

— jurisdiction based on power over a piece of property within the forum state, i.e., a court’s power to adjudicate the rights to a given piece of property. The presence of property in the forum state is constitutionally sufficient for the exercise of jurisdiction over that property.

Question 21

Quasi-In-Rem

Answer 21

— jurisdiction not based on power over a person but based on that person’s interest in property (e.g., land, securities, bank account, automobile, etc.) located within the court’s jurisdiction. Note that this type of jurisdiction has nothing to do with the property. When it is not possible to obtain in personam jurisdiction, seek quasi-in-rem jurisdiction—often referred to as “second best” because recovery by the plaintiff is limited to the value of the property (i.e., any judgment cannot be enforced against any other property belonging to defendant).

Question 22

Three questions for personal jurisdiction:

Answer 22

1. Is there a traditional basis of jurisdiction? (If so, then the court HAS personal jurisdiction.)

2. Is jurisdiction based on some long-arm statute?

3. If the answer to (2) is yes, is the application of the long-arm statute constitutional?

Question 23

What are the traditional basis of personal jurisdiction?

Answer 23

(1) Physical Presence at Time of Personal Service;
(2) Domicile; and
(3) Consent.

Question 24

Long Arm Jurisdiction

Answer 24

To assert PJ over a non- resident:
1) The State must have a Long-Arm Statute; AND
2) Comply with Constitutional Due Process Requirements – D has sufficient minimum contacts with the forum state so as not to offend traditional notions of fair play and substantial justice.

Question 25

Minimum Contacts Test

Answer 25

“Defendant must have certain minimum contacts with the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice.”

(1) Minimum Contacts – there must be a relevant connection between the defendant and the forum state; AND

(2) Foreseeability – it must have been foreseeable that the defendant would be sued in the forum state.

Question 26

Purposeful Availment

Answer 26

The defendant must have voluntarily reached out to the state (i.e. “It is essential that in each case there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum State, thus involving the benefit and protections of its laws.”).

Accidental contacts are not sufficient for purposeful availment.

Question 27

Fair Play & Substantial Justice

Answer 27

• Historically = Systematic & Continuous Contacts — the standard for general personal jurisdiction used to be systematic and continuous contacts in the forum.

•	Modernly = Defendant Feels at Home — more recently, SCOTUS has tightened this standard, holding that general personal jurisdiction can only exist if the defendant feels at home in the forum state.

Question 28

Reasonableness of Jurisdiction

Answer 28

— consider the following three issues when considering whether a defendant is “at home” in the forum state:
▪ Burden on Defendant — can defendant show that the forum is “so gravely inconvenient” that she will be at a severe disadvantage in litigation?
▪ Plaintiff’s Interest in Obtaining Relief — will the plaintiff be able to obtain relief in another forum?
▪ Interest of the Forum State — does the forum state have an interest in providing a forum for its residents and protecting their health and safety?

Question 29

Service of Process & Notice Timing

Answer 29

Summons & Complaint MUST be served on D within 90-days after filed with the court.

− Otherwise, the court must→
(a) dismiss the action without prejudice against that D; OR
(b) order that service be made within a specified period of time.

Question 30

Service may be made by any person who is:

Answer 30

(1) at least 18 years old, AND
(2) not a party to the action.

Question 31

Method of Service

Answer 31

The method of service must be consistent with Due Process→
1) reasonably calculated,
2) to make the parties aware of the action,
3) and give them an opportunity to object.

Question 32

Individual→may be served:

Answer 32

(a) personally;
(b) via someone of suitable age and discretion at the individual’s current dwelling or usual place of abode;
(c) via an agent (by appointment or by law); OR
(d) in accordance with state law of the forum state or where service is made.

Question 33

Corporation, Partnership, or Association → may be served:

Answer 33

(a) in accordance with state law of the forum state or where service is made; OR
(b) to an officer or managing/general/authorized agent.

Question 34

Foreign Defendant→may be served

Answer 34

via any manner NOT prohibited by international agreement.

Question 35

Waiver By Mail

Answer 35

— the defendant waives her right to formal service of process if notice is mailed first class with prepaid postage to the defendant and the defendant returns waiver within 30 days.

▪	More Time to Answer — the defendant is given more time to answer the complaint (i.e., 60 days instead of 21 days).

Question 36

Proper Venue

Answer 36

Venue is Proper in any district where:
a) any defendant resides (if all defendants are residents of the forum state);
b) a substantial portion of the claim occurred;
c) a substantial portion of the property is located; OR
d) if none of the above, then where any defendant is subject to the court’s PJ.

*Proper venue is determined at the time the action was filed.

Question 37

Transfer of Venue

Answer 37

If venue was proper when the case was filed, the court MAY transfer it if:
1) Needed for the convenience of the witnesses or in the interests of justice; AND
2) The case could have initially been brought in the receiving court (court has PJ and SMJ).

Question 38

If venue was improper when the case was filed, the court MUST either:

Answer 38

a) Dismiss the case; OR
b) Transfer the case to a proper court if the interests of justice require it.

Question 39

When venue is transferred, what choice of law provisions will apply?

Answer 39

the choice of law provisions of the transferor court will apply. Change of court, not a change of law.

Question 40

Forum Selection Clause

Answer 40

Courts will enforce a forum- selection clause UNLESS special factors are present (i.e. significant/unusual hardship, inequality of bargaining power).

Question 41

State Law in Federal Court

Answer 41

Erie Doctrine – Applies when a federal case is brought under diversity of citizenship jurisdiction.

− Federal courts will apply federal procedural law, BUT must apply the substantive law of the forum state in which it sits.

Question 42

Procedural Law

Answer 42

= civil procedure rules, statute of limitations (except in limited circumstances), burden of proof, and rebuttable presumptions.

Question 43

Substantive Law

Answer 43

= choice of law rules, statute of frauds, irrebuttable presumptions, statute of limitations that condition a substantive right or have a borrowing statute, preclusion law.

Question 44

When Substantive Federal Law Applies

Answer 44

Federal law will apply for matters governed by the U.S. Constitution, laws passed by Congress, and valid federal law that preempts state law under the Supremacy Clause.

Question 45

What is the three-part balancing test a court will use if it is unclear whether the state law is substantive or procedural?

Answer 45

State Law Outcome Determinative? – if the state law substantially determines the outcome of the litigation, it is substantive law and must be applied by a federal court sitting in diversity jurisdiction.

Balance State Interest v. Federal Interest in Application of Particular Rule – does either court system (i.e. federal or state) have a strong interest that its rule be applied?

Avoid Forum Shopping – courts seek to avoid forum shopping, so a judge will consider whether application of a particular rule will promote forum shopping (i.e. influence primary conduct of plaintiffs).

Question 46

Removal

Answer 46

Defendant MAY remove a case to Fed. Court (in the district where the state court case was originally filed) if:
1) The federal court has SMJ;
2) All defendants agree;
3) No defendant is a resident of the forum state (if removal is based on diversity jurisdiction); AND
4) Removal is sought within 30-days of service of the Summons or receiving the initial pleading (whichever is shorter).

A plaintiff CANNOT remove a case to Fed. Court.

Question 47

When is the right to remove waived by the defendant?

Answer 47

Permissive Counterclaims = Yes – a defendant who files a permissive counterclaim in state court most likely will be deemed to have waived her right to remove the case to federal court.

Compulsory Counterclaims = No – a defendant who files a compulsory counterclaim in state court will generally not be deemed to have waived her right to remove the case to federal court.

Question 48

The Complaint

Answer 48

the initial pleading by the plaintiff that starts a civil action and states the basis for the court’s jurisdiction. (i.e., the basis for the plaintiff’s claim and the demand for relief).


Question 49

Complaint Requirements

Answer 49

▪ Statement of Subject Matter Jurisdiction

▪ Short & Plain Statement of Claim Showing Entitlement to Relief
◦ Historical = Notice Pleadings;
◦ Modern = Plausibility (Fact-Based) Pleadings; AND

▪ Demand for Relief Sought

Must Be Served Within 90 Days — the plaintiff must serve the summons and complaint within 90 days of filing the cause of action.

Question 50

Complaint Special Matters

Answer 50

— certain “special matters” must be plead with particularity if they are to be raised at trial.

▪ Fraud = Yes — the circumstances constituting fraud shall be stated with particularity.

▪ Mistake = Yes — the circumstances constituting mistake shall be stated with particularity.

▪ Special Damages = Yes — special damages are damages that do not normally flow from an event and special damages must be specifically claimed.


Question 51

The Answer

Answer 51

— the defendant’s response to the plaintiff’s complaint is a pleading and is called the “answer.” In the answer, defendant states in short and plain terms her defenses to each claim asserted and admits, denies, or states that she lacks sufficient information to admit or deny each count of plaintiff’s complaint.

Question 52

Answer Requirements

Answer 52

▪ Respond to Allegations of Complaint
◦ Admit
◦ Deny — failure to expressly deny constitutes an admission on any matter except damages. Arguing is not denial.
◦ State Lack of Sufficient Information to Admit or Deny — this option is not available if the information lacking is in the defendant’s control or is public knowledge.

▪ Raise Affirmative Defenses — the defendant must plead affirmative defenses (e.g., statute of limitations, statute of frauds, res judicata, assumption of risk, fraud, self-defense, etc.) in the answer or the defense will be waived.

Question 53

Answer Timing

Answer 53

Within 21 Days of Service of Process
◦ Exception: Waiver of Formal Service of Process = 60 Days; OR

▪ Within 14 Days of Denial of Rule 12 Motion

Question 54

Amendments to Pleadings As of Right

Answer 54

– allowed to amend once as a right within 21-days after service of:
a) the original pleading; OR
b) a responsive pleading or pre-answer motion to the original pleading.

Question 55

Amendments to Pleadings By Permission

Answer 55

– in all other cases, an amendment is allowed:
a) with the opposing party’s written consent; OR
b) with leave of the court upon motion (should be freely granted when justice so requires).

Question 56

Waived Defenses

Answer 56

If the following defenses are NOT included in the D’s first response (answer/ pre-answer motion), they are deemed waived: (1) lack of PJ; (2) improper venue; (3) insufficient process; and (4) insufficient service of process.

− BUT, courts have allowed adding waivable defenses to a MTD when: (1) promptly made; AND (2) it’s prior to a hearing on the original motion.

Question 57

Relation Back Doctrine

Answer 57

When a Complaint is amended to add a:
New Claim → relates back to the date of the original filing so long as it arises out of the same transaction or occurrence as the original pleading allegations.
New Defendant→relates back so long as:
1) same transaction and occurrence;
2) new party received notice of the original action
within 90 days of filing; AND
3) new party knew (or should have known) that the
action would have been brought against it but for a mistake in the party’s identity.

Question 58

12(e) Motion for More Definite Statement

Answer 58

— if the complaint is ambiguous, the defendant may move for a more definite statement. A motion for more definite statement can only be made pre-answer.


Question 59

12(f) Motion to Strike

Answer 59

— if a party has included “redundant, immaterial, impertinent or scandalous” material in the complaint, the opposing party may move to have this material stricken from the pleading.

Question 60

12(b) Motions to Dismiss

Answer 60

— can be raised either by motion or in the answer.

▪ (1) Lack of Subject Matter Jurisdiction = Anytime — this defense is never waived and, as such, can even be raised for the first time on appeal.

▪ (2) Lack of Personal Jurisdiction = Waivable — must be included in the first response (motion or answer) or else waived by the defendant.

▪ (3) Improper Venue = Waivable — must be included in the first response (motion or answer) or else waived by the defendant.

▪ (4) Insufficiency of Process = Waivable — a problem with the summons (documents) itself. This Rule 12(b) defense must be included in the first response (motion or answer) or else waived by the defendant.

▪ (5) Insufficiency of Service of Process = Waivable — a problem with the manner of process. This Rule 12(b) defense must be included in the first response (motion or answer) or else waived by the defendant.

▪ (6) Failure to State a Claim = Anytime During Trial — the failure to state a claim upon which relief may be granted. May be raised at any time during trial.

▪ (7) Failure to Join Indispensable Party = Anytime During Trial — failure to join a necessary party. May be raised at any time during trial.


Question 61

Rule 11 – Representations to the Court

Answer 61

All papers served in a litigation MUST be signed by an attorney of record (or by the party if unrepresented).
When presenting the papers to the court, the party certifies the following:
1) It is not being presented for any improper purpose;
2) The legal contentions are warranted and non- frivolous;
3) The factual contentions have evidentiary support or likely will after discovery; AND
4) denials of factual contentions are warranted or reasonably based on lack of information.

Question 62

Rule 11 – Sanctions Imposed

Answer 62

The court may issue sanctions (by motion or on its own) for failure to comply with Rule 11.

Question 63

Nature of Sanctions Imposed

Answer 63

– are within the discretion of the court, and can be:
a) non-monetary directives;
b) pay a penalty; or
c) pay reasonable attorney’s fees/expenses resulting from the violation.

Question 64

Liability for Sanctions

Answer 64

− Generally, a law firm is jointly responsible for a violation by its partner, associate, or employee.

− Monetary sanctions CANNOT be issued against a client for an unwarranted claim/defense/legal contention made by their attorney.

Question 65

Procedure for Filing a Rule 11 Sanctions Motion

Answer 65

A party CANNOT file a Rule 11 motion with the court without first:
1) serving the motion on the offending party; AND
2) giving the opponent 21 days to withdraw or correct the paper/pleading.

Question 66

Preliminary Injunction

Answer 66

Maintains the status quo pending the outcome of an action.
May be issued only:
1) upon notice to the adverse party; AND
2) if the moving party gives security/bond (used to reimburse non-movant for injury caused by the injunction if the moving party is not successful on the merits).

Question 67

Preliminary Injunction Traditional 4 -Prong Test requires:

Answer 67

1) Likelihood of P’s success on the merits;
2) Likely threat of irreparable harm to the movant;
3) The harm alleged by movant outweighs any harm to the non-moving party (balancing the harm); AND
4) An injunction is in the public interest.

Question 68

Temporary Restraining Order (TRO)

Answer 68

Is an emergency remedy used to maintain the status quo pending the outcome of a preliminary injunction application.

− To be issued, a movant must allege immediate and irreparable harm, and a court will analyze the same factors as a preliminary injunction.

Question 69

Ex Parte TRO – Moving party MUST:

Answer 69

1) provide specific facts in a sworn statement showing immediate and irreparable injury, injury, loss, or that damage will result before an adverse party can be heard;
2) certify in writing any efforts made to give notice to the adverse party and why notice should not be required; AND
3) give security in an amount that the court deems proper.

Question 70

If granted, an ex parte TRO automatically expires after 14 days, UNLESS:

Answer 70

(a) the court sets a shorter time- frame for automatic expiration;
(b) the court extends it for good cause; or
(c) the parties consent.

− The adverse party may move to dissolve or modify the TRO on 2-days’ notice.

Question 71

Counterclaims

Answer 71

A claim against an opposing party.

Permissive Counterclaim = counterclaims that are not compulsory.

Question 72

Compulsory Counterclaim

Answer 72

a claim that: (1) arises out of the same transaction or occurrence; AND (2) does not require adding another party out of the court’s jurisdiction.

− MUST be stated in party’s pleading or it’s barred in future litigation.

Question 73

Same Transaction or Occurrence Factors

Answer 73

Courts analyze whether:
1) Issues of fact and law are largely the same;
2) Res judicata would bar a subsequent suit;
3) Substantially the same evidence supports or refutes the claims; and
4) If there is any logical relation between the claim and counterclaim.

*The presence of any factor above supports that the claim arises out of the same transaction or occurrence.

Question 74

Cross-Claims

Answer 74

A pleading may state a claim against co-party (co-defendant) as a cross-claim, BUT only if it arises out of the same transaction or occurrence as the original action or counterclaim.

Question 75

Permissive Joiner of Parties

Answer 75

Multiple plaintiffs or defendants MAY be joined in one action if:
1) joint and several relief is asserted by them or the claim arises out of same transaction or occurrence;
2) a common question of law or fact exists; AND
3) SMJ is present for each claim.

Logical Relationship Test
→all logically related events for a legal action are within the meaning of same transaction or occurrence.

Question 76

Required Joinder of Parties

Answer 76

A party MUST be joined if:
1) The party is necessary; AND
2) Joinder is feasible.

*The court must order that such a party be joined in the action.

Question 77

Necessary Party

Answer 77

– a party is necessary if:
a) The court cannot grant complete relief without the party;
b) The absent party claims an interest in the action that would be impaired or impeded; OR
c) The party’s absence creates a substantial risk of multiple liability or inconsistent obligations.

Question 78

Feasibility – joinder is feasible if:

Answer 78

1) Joinder will not remove SMJ; AND
2) Court has PJ over the party.

Question 79

If joinder is NOT feasible, the court will consider factors to decide whether to continue or dismiss the action:

Answer 79

▪ whether the party’s absence might prejudice any other party;
▪ whether prejudice can be lessened or avoided;
▪ whether an adequate judgment can be rendered; and
▪ if plaintiff would have an adequate remedy if the case is dismissed.

Question 80

Intervention as of Right

Answer 80

A court MUST permit a non-party intervene in an action if it demonstrates:
1) That the application to intervene is timely;
2) An interest in the subject matter of the action;
3) That protection of this interest would be impaired; AND
4) Such interest is not adequately represented by existing parties in the action.

If Intervention as of Right is NOT present, the court may still allow Permissive Intervention upon a timely motion.

Question 81

Permissive Intervention

Answer 81

A court MAY allow a non- party to intervene when the non-party:
1) Files a timely motion; AND
2) Either:
a) Has a claim/defense that shares a common question of law or fact with the main action; OR
b) Is given a conditional right to intervene by federal statute.

*The court must consider whether intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

Question 82

Impleader (Third-Party Actions)

Answer 82

D may bring a third- party into an action only if:
1) The third-party is or may be liable to D,
2) for all/part of the claim against D in the action.

*Claims merely arising out of the same transaction or occurrence are insufficient unless derivative liability exists (i.e. indemnification, contribution).

Question 83

Commencement of a Third-Party Action

Answer 83

Defendant (as a third-party plaintiff) must serve a Summons & Third-Party Complaint upon the third-party.
− Leave of the court is required if more than 14- days have passed since serving its Answer.

Question 84

Class Actions

Answer 84

Requirements: A person is allowed to sue on behalf of a class when there is:
1) Numerosity – class is so numerus that joinder is impracticable;
2) Commonality – questions of law or fact are common to the class;
3) Typicality – the claims/defenses of representative parties are typical of the class; AND
4) Adequacy of Representation – the representative parties (incl. counsel) will fairly and adequately protect the interests of the class.

Question 85

Class Certification

Answer 85

If the above are met, the class will be certified if:
a) Inconsistent/Dispositive Adjudications – separate actions would create a risk of (i) inconsistent adjudications or (ii) harm the interests of absent class members;

b) Declaratory/Injunctive Relief – the party opposing the class has acted/refused to act on grounds that apply generally to the class so that the grounds for declaratory/injunctive relief are appropriate to the whole class; OR

c) Predominance & Superiority – common questions of law or fact are predominant, and a class action is superior to other methods.

Question 86

Discoverable Information

Answer 86

A party may obtain all non- privileged info that is:
1) Relevant to any party’s claim or defense; AND
2) Proportional to the needs of the case.

*The info need not be admissible into evidence to be discoverable.

*Once a person reasonably anticipates litigation, that person has a duty to preserve
ALL relevant evidence.

Question 87

Depositions

Answer 87

A party is permitted up to 10 depositions of any person/party, so long as the deposition is:
1) Is limited to 1 day of no more than 7 hours; AND
2) Proper notice is given (reasonable written notice).

*A subpoena is NOT required to depose a party to the action.

Question 88

Unless stipulated otherwise, a party MUST obtain leave of the court:

Answer 88

a) To take more than 10 depositions;
b) To depose a party again – if they had already been deposed in the action; OR
c) If it’s seeking a deposition prior to the Rule 26(f) meet and confer conference.

Question 89

Electronically Stored Info (ESI)

Answer 89

Includes emails, text messages, digital files, and meta-data.

When a party reasonably anticipates litigation, it must take reasonable steps to preserve ESI (e.g. suspend routine document retention/destruction policy, litigation hold).

Question 90

Sanctions for Failure to Preserve ESI

Answer 90

The court may sanction a party for failure to preserve ESI only if:
1) The ESI should have been preserved;
2) The party failed to take reasonable steps to preserve it; AND
3) The ESI cannot be replaced/restored through additional discovery.

Question 91

If court determines sanctions for ESI failure:

Answer 91

A) Order measures no greater than necessary to cure any prejudice; OR

B)If failure to preserve was intentional:
i. presume that the lost info was unfavorable;
ii. instruct the jury that it may or must
presume that the lost info was unfavorable;
iii. dismiss the action; or
iv. enter a default judgment.

Question 92

Rule 26(g) – Discovery Disclosures & Sanctions

Answer 92

All discovery papers served in a litigation MUST be signed by an attorney of record (or a party personally if unrepresented).

Certifications When Signing:
− Signing any disclosure→certifies that it’s complete and correct at the time made.
− Signing any other discovery document→ certifies that it’s:
(1) consistent with the FRCP and is not frivolous;
(2) not being presented for an improper purpose; AND
(3) not unreasonable, unduly burdensome, or unduly expensive.

Sanctions – The court may issue sanctions for failure to comply with Rule 26(g). If a person violates the rule without substantial justification, the court MUST impose an appropriate sanction (i.e. pay reasonable expenses, incl. attorney’s fees, caused by the violation).

Question 93

Rule 26(a) – Initial Disclosures

Answer 93

Without request, each party MUST provide these initial disclosures to opposing parties within 14-days after the Rule 26(f) “meet and confer” conference:
1) Contact info of individuals likely to have discoverable info, plus the info they likely possess;
2) Copy or description of all documents, ESI, & tangible things the party may use to support its claims/defenses (unless it will be used solely for impeachment);
3) Computation of each category of damages; AND
4) Any insurance agreement that may be liable to satisfy a judgment in the action.

*If a party fails to provide the above, that party is NOT allowed to use that witness/info on a motion, hearing, or trial UNLESS the failure was substantially justified or harmless.

Question 94

Attorney Work Product Doctrine

Answer 94

Protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation UNLESS:
1) A substantial need for the materials exists; AND
2) A substantial equivalent cannot be obtained without undue hardship.

Question 95

Privilege Log

Answer 95

When a party claims protection, it must disclose the existence of the material in sufficient detail to enable other parties to asses the claim of privilege.

Question 96

Pretrial Conference

Answer 96

The court may order the attorneys (and pro-se parties) to appear for a Pre-trial Conference to control the management/scheduling of the case.
− Attendance is MANDATORY.

Question 97

Scheduling Order

Answer 97

The court will issue a Scheduling Order in most types of actions.
− The Scheduling Order may be modified only:
(1) for good cause; AND
(2) with the judge’s consent.

Question 98

Pretrial Conference Sanctions

Answer 98

May be issued if a party:
(a) fails to appear;
(b) is substantially unprepared;
(c) does not participate in good faith; OR
(d) fails to obey a scheduling/pretrial order.

− Sanctions include→
(a) prohibiting a party from supporting/opposing certain claims or defenses;
(b) striking all/part of the pleading;
(c) dismissing all/part of the action; OR
(d) a default judgment.

Question 99

Modification of Pretrial Conference Order

Answer 99

Can only be modified by the court to prevent manifest injustice.

Question 100

Motion to Dismiss / Judgment on the Pleadings

Answer 100

Motion to Dismiss Standard – Requires the court to:
(1) consider the facts in the light most favorable to the non-moving party; and
(2) determine if there is any basis upon which relief can be granted.

− The court DOES NOT evaluate the merits of the case.

Question 101

Motion to Dismiss Grounds:

Answer 101

1) Lack of SMJ;
2) Lack of PJ;
3) Improper venue;
4) Insufficient process;
5) Insufficient service of process;
6) Failure to state a claim upon which relief can be granted;
7) Failure to join a necessary party.

*Grounds (2) through (5) are deemed waived if not raised in the first responsive pleading or pre-answer motion to dismiss.
*Ground (1) may be made at any time.

After Defendant answers, a motion on the above grounds is called a “Motion for Judgment on the Pleadings”.

Question 102

Summary Judgment (SJ) Motion

Answer 102

A court will grant an SJ motion when:
1) There is no genuine issue of material fact; AND
2) Movant is entitled to judgment as a matter of law.

*The court MUST view the evidence in the light most favorable to the non-moving party.

Question 103

Motion for Judgment as a Matter of Law (JMOL)

Answer 103

May be brought at any time before the case is submitted to the jury.

JMOL will be granted if:
1) The non-moving party has been fully heard on the issue during a jury trial; AND
2) The court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on that issue.

*The court MUST draw all reasonable inferences in the light most favorable to the opposing party.

Question 104

Renewal of JMOL Motion

Answer 104

A party may renew its JMOL motion only if it moved before the case was submitted to the jury.
− A renewed JMOL motion must be filed within 28 days of the entry of judgment.

Question 105

Motion for a New Trial

Answer 105

Court may grant a new trial for any reason for which a new trial has been granted in federal court.
− Must be filed no later than 28 days after the entry of judgment.

Question 106

Grounds for a New Trial:

Answer 106

a) Error at trial that makes judgement unfair;
b) New evidence surfaced that could not be obtained with due diligence for the original trial;
c) Prejudicial misconduct of a party, attorney, third- party, or juror;
d) Judgment was against the weight of evidence; OR
e) Verdict was excessive or inadequate.

Question 107

Default Judgment

Answer 107

A default judgment will have a preclusive effect if the court had jurisdiction (SMJ + PJ).

− States vary as to effect of preclusion a default judgment is given, BUT:
▪ A state court MUST give a judgment in a federal diversity action the same effect it would give a state court judgment.
▪ A default judgment bars a party from asserting compulsory counterclaims that could have been raised in the original action.

Question 108

Claim Preclusion (Res Judicata)

Answer 108

Precludes a party from subsequently re-litigating any claim that was or could have been raised.

Question 109

Elements – Claim Preclusion may be invoked when:

Answer 109

1) Parties are identical or in privity;
2) Prior judgment was rendered by a court of competent jurisdiction;
3) Final Judgment on the merits in the prior action; AND
4) Same claim was involved in both actions (claim arises out of the same transaction or occurrence).

Privity – exists when the non-party has a legally recognized relationship with the original party and would be bound by a judgment against the original party.

Question 110

Issue Preclusion (Collateral Estoppel)

Answer 110

Precludes a party from attempting to retry an issue if there has been a final judgment on the merits by a court of competent jurisdiction.

Question 111

Elements – Issue Preclusion may be invoked when:

Answer 111

1) Valid and final judgment was rendered in the first action;
2) Issue is identical to the issue decided in the prior action;
3) Issue was actually litigated, determined, and essential in the prior action; AND
4) Party against whom enforcement is sought had a full and fair opportunity to litigate the issue in the prior action.

*Generally, a non-party to a prior action MAY assert issue preclusion.

Question 112

Final Judgment Rule

Answer 112

A federal appellate court can only hear an appeal from a final judgment on the merits (unless an exception applies).

Final Judgment / Decision is one which:
1) Ends the litigation on the merits (ALL claims are resolved); AND
2) Leaves nothing for the court to do but execute the judgment.

Filing – an appeal MUST be filed within 30 days after entry of the judgment.

Question 113

Rule 54(b) Exception to FJR

Answer 113

an immediate appeal is allowed when:
1) Action has multiple parties or multiple claims;
2) Court directs final judgment for some of the claims or parties; AND
3) Court expressly determines that there is no just reason for delay of an appeal.

Question 114

Statutory Exceptions FJR

Answer 114

Can immediately appeal orders for:
(i) injunctions,
(ii) receiverships,
(iii) possession of property,
(iv) liability in an admiralty action, and
(v) patent infringement orders that are final except for an accounting.

Question 115

Certified Appeal Exception to FJR

Answer 115

an immediate appeal is allowed when:
1) A federal district court judge certifies certain grounds for immediate appeal; AND
2) The Court of Appeals agrees to permit the appeal.

*Application for the appeal must be made within 10 days after entry of the order.

Question 116

Collateral Order Doctrine

Answer 116

allows an immediate appeal if the interlocutory order:
1) Conclusively determines the disputed question;
2) Resolves an important issue that is separate from the merits of the action; AND
3) Is effectively unreviewable on appeal from a final judgment.

Question 117

Writs of Mandamus & Prohibition

Answer 117

allows an immediate appeal if there is an abuse of authority by a trial court.
− Issued only in exception circumstances.
− Cannot be used to correct an ordinary error.

Question 118

Pendant Appellate Jurisdiction

Answer 118

A party may seek to have a non-final order reviewed along with another appealable order currently pending before the appellate court when:
a) A non-appealable decision is inextricably intertwined with an appealable decision; OR
b) Review of the non-appealable order is necessary to ensure a meaningful review of the appealable order.

Question 119

Certification of Class Action

Answer 119

an order granting/denying class-action certification may be appealed when:
1) A petition for permission to appeal is filed within 14 days after entry of the order; AND
2) The Court of Appeals agrees to hear the appeal.