Civil Procedure

Question 1

Jurisdiction

Answer 1

Courts must have personal, subject matter jurisdiction, and venue must be proper.

Question 2

Personal jx

Answer 2

PJX gives power to issue judgment against D. (1)Statute must authorize personal jx and (2) its excercise must be constitutional.

Question 3

Long Arm STatute

Answer 3

State court long arm statute specifies when a state can exercise pjx over a D from another state. Fed courts use the state long arm.

Question 4

Limited long arm statute

Answer 4

Specify an exact act that gives pjx.

Question 5

Hybrid long arm statute

Answer 5

Specific acts give pjx, but also goes to the constituional limit. Almost every state subjects people to pjx if they commit a tort in the state. (If a lot of states use it, it is likely constitutional).

Question 6

Constitutional pjx

Answer 6

Does D have such minimum contacts with the forum so that the exercise of PJX over them does not offend the traditional notions of fair play and substantial justice?

Question 7

Minimum contacts

Answer 7

Contact must be purposeful, and forseeable that D can be sued in the forum state. (not purposeful is selling a car and it being driven to another state.

Question 8

PJX Relatedness

Answer 8

cause of action must be sufficiently related to D’s contact with the forum.

Question 9

General personal JX

Answer 9

Court has pjx over D for all causes of action. E.g. where they are domiciled for an individual (at home). A corporation is at home where they are incorporated and in the principal place of business.

Question 10

Specific PJX

Answer 10

The court has pjx over the current case only. If contact isn’t related to D’s relation with the forum state, then there is no specific PJX.

Fairness: only required for specific PJX. Consider (1) burden on D - is it a severe disadvantage? (2) burden on wtinesses; (3) state’s interests; (4) P’s interest.

Question 11

Subject matter jx: federal question

Answer 11

Whether case arises under the US constitution, federal laws, or treaties. Based only on the P’s claim, not D’s defenses.

Question 12

Subject matter diversity jx

Answer 12

Complete diversity of citizenship is required. P and D must be from different states. Plus, the amount of controversy must be over 75,000. Diversity must exist at moment case is filed.

Question 13

Citizenship Individual

Answer 13

A person is the citizen of a state where they are domiciled (the permanent home). Changes in physical presence to a new state change citizenship only if done with concurrent intent to remain there permanently or for an indefinite period.

Question 14

Citizenship coporation

Answer 14

A corporation is a citizen of every state in which it is incorporated and the one state in which it has its principal place of business. The principal place of business is where high level officers control and direct business actiivites. It is almost always headquarters.

Question 15

Citizenship in a class action

Answer 15

Class action citizenship is based on the state citizenship of the named representative of the class.

Question 16

Citizenship partnership

Answer 16

The partnership takes on the citizenship of each partner.

Question 17

Amount in controversy over 75k

Answer 17

The P’s good faith allegation as to amount in controversy controls. Unless there is a legal certainty it is impossible for P to recover more than 75k. Litigation interests and costs are excluded from AIC.

A single P may aggregate all claims against a single D to meet AIC.

A single P against multiple Ds can add claims against multiple Ds only when it is a joint claim e.g. against joint tortfeasors.

Multiple Ps against a single D may aggregate amount if enforcing a single right. They may not aggregate amounts for general personal injury to multiple Ps.

For equitable relief, some jx look at Ps perspective, others look at D. Others (and MBE) say either.

Question 18

Supplemental Jx

Answer 18

Way for the court to hear a claim it otherwise wouldn’t have jx for. E.g. counterclaim doesn’t meet AIC but may be added in.
(1) only available where there is a proper foundational claim; (2) must share common nucleus of operative facts with first claim (same important facts of first claim); (3) In diversity cases, the supplemental jx is avialable to parties other than P. (4) court has discretion to declien supplmental jx e.g. if it is a novel issue of state law, the supplemental claim predominates the foundational claim, or the original claim is dismissed.

Question 19

Joinder of parties Compulsory joinder

Answer 19

Two or more parties in one action. A party must be joined if (1) the missing person is a required party to the case such that existing parties can’t get complete relief without their presence (rare); the person claims interest in subject of action; existing party may be subject to multiple or inconsistent liablity if someone isn’t joined (more likely). (joint tortfeasors are not required parties. (2) The party can be joined because they are subject to PJX in the state and they don’t destroy diversity or make venue improper. (3) If the party can’t be joined, the court must assess whether the action should proceed anyways if it does not affect the rights of current parties or absentee parties.

Question 20

Permissive joinder

Answer 20

When parties chose to join together in an action (1) when claims arise from the same transaction or occurrence and claims share any common question of law or fact. Plaintiff has to be the one to initiate joinder. D can’t force P to sue somoene unless compulsory joinder applies. One exception to the rule that P can’t use supplemental jx is when 2 Ps join together and second p’s claim fails the AIC in diversity claim, then the P can use supplemental jx to join them AS LONG as second P is not from the same state as D. But D can use supplemental jx to join a party even if they are from the same state as D.

Question 21

Impleader

Answer 21

When D brings an action against a third party the D believes may be liable to them. (indemnity, contribution). D makes a claim directly against the third party so the D becomes a third party plaintiff. Can still have supplemental jx even without diversity between third party P and third party D.

Question 22

Counterclaim: compulsory and permissive

Answer 22

Claim for relief against an opposing party. Compulsory counterclimes are ones that arise out of the same transaction or occurrence as the oppsoing party claim and does not require joinder of additional parties. A compulsory counter claim will always have supplemental smj (common nucleus of operative fact). Must be asserted in pending aciton or it is lost forever.

Permissive: anything else.

Question 23

Venue

Answer 23

Where a court proceeding should take place.

Question 24

Propper venue: Ds from same and different states

Answer 24

When suing people from the same state: where any D resides if all Ds are residents of the same state.

Residency for venue is the district where a natural person is domiciled. A business entity resides in any district where they are subject to personal jx.

When suing people from different states: venue is propper in judicial district where a substantial part of the events or omissions giving rise to the claim occurred or where a substantial part of the property the action is based on is located.

Fallback venue - any judicial district in which any D is subject to court’s personal jx with respect to the action (rare) mostly used with multiple Ds and act occurred outside USA.

Question 25

Complaint

Answer 25

Requires a short statement on grounds of court’s jx, short statement of claims showing P is entitled to relief on, and demand for judgment of relief. (smj, state claim, and relief asked for). The complaint must state facts supporting a plausible claim. They cannot be lables and conclusions or recistation of elements of the cause of action. It must actually put D on notice.

Question 26

Complaint requirement when alleging fraud, mistake, or special damages

Answer 26

P must state circumstances that establish fraud or mistake with particularity. Special damages must be specifically stated.

Question 27

Service of process

Answer 27

Complaint and summons formally giving D notice of suit in time to give response. Within th eUS, it must be ordinarly made within 90 days of complaint being filed. The court must extend period if good cause is shown.

Any person who is 18 or older and not a party to the action may serve process. A party may request service by US marshall.

Question 28

Service of process within USA

Answer 28

(1) personal service; (2) service left at D’s usual place of abode with someone of suitable age and discretion who lives there; (3) service on D’s authorized agent.

Must follow service of process under state rules where the federal court sits OR in state where service is to be made. But if the D is a minor or incompetent, service must be under rules where service is made.

Question 29

Service of process on a corp, partnership, associ

Answer 29

May serve any agent or officer, anyone with enough responsibility they can be trusted to inform their superior. Could be a manager or higher-ups or the designated registered third party. Can use state rules where court sits or where service is made.

Question 30

Service of process for D outside of US

Answer 30

Must use (1) method provided in international agreement; (2) method provided by foreign country’s law; (3) or directed by foreign official’s response to a letter so long as it is reasonably calculated to achieve service. Service can be (1) personal service; (2) mail unless the country prohibits it; (3) any court ordered method as long as it isn’t prohibited by the foreign country’s law.

Question 31

Waiver of service of process

Answer 31

P can request D waive service by mailing D a formal request to waive service, two copies of waiver form and a copy of the complaint. D has 30 days from date request sent to return it, or 60 days if outside the US.

Waiving extends answer period from 21 days to 60 days from the date the request was sent. If outside the USA, extends it to 90 days.

If D doesn’t waive service when requested, they have to pay the cost of service unless they have a good cause.

Question 32

Immunity to service of process

Answer 32

Party, witness, or attorney who enters a state to appear in another action is immune from personal service of process while there. If a party was induced to enter the state to be served, service is invalid.

Question 33

12(b) motions.

Answer 33

(1) lack of PJx; (2) lack of SMJ; (3) improper venue; (4) failure to join a required party; (5) insufficient process; (6) failure to state a claim; (7) insufficient service of process.

Question 34

Waiver of claims

Answer 34

IF fail to raise a compulsory counter claim, it is waived. If a party fails to file a 12b mx to dismiss for lack of pjx, improper venue, insufficient process, or insufficient service of process, they have to do it in the first response or can never be brought. (except for through amended answer within21 days.)

Question 35

Answer

Answer 35

D’s response to allegations in complaint. If served with process and not filing a rule 12 motion, must answer within 21 days after service. (2) if D wiaved service, answer within 60 days; (3) If made rule 12 motion, answer 14 days from court’s denial or postponment of motion. Can mail it to P’s attorney or e-file. (use normal mode of delivery).

An answer includes responses to all allegations in the complaint with a specific denial or admission of each allegation or a general denial with specific admissions to certain allegations. Fialure to deny is an admission. But, can say they don’t have specific knowledge or information to form a belief which is treated like a denial. An answer may include counter claims, but must include compulsory counterclaims.

Question 36

Default

Answer 36

If D failed to plead or otherwise defend case, P can move for default. Clerk enters default saying there has been no timely answer. D cannot proceed until default is et aside. If P fails to move for entry of default, D can file a response even if it is late.

Question 37

Set aside default

Answer 37

D can set aside a default for good cause shown. E.g. exclusable neglect (sickness, emergency). Requires dilligence and that D prove meritorious defense.

Question 38

Default judgment

Answer 38

When a default is not set aside, the P can ask for a default jugment. Clerk can it if (1) claim is for sum certain; (2) default due to Ds fta; (3) D is not a minor or incompetent; (4) damage amount requested is not greater than amount requested in complaint.

Otherwise, P asks court for hearing on damages. D can still be heard on damages if they have appeared.

D must be notified of request for default jugment by first class mail at least 7 days before hearing. IF D has failed to do anything, they can still make a rule 60 motion for relief from judgment for mistake, inadvertence, surprise, and excusable neglect.

Question 39

MX for summary jugment

Answer 39

Made after discovery ends but before trial. Must be filed within 30 days of close of discovery. Granted if movant shows there is no genuine dispute of material fact AND, movant is entitled to jugment as a matter of law. Court looks beyond the allegations. Court considers evidince in light most favorable to the nonmoving party.

If resolving issue would give movant win in the case, can ask judge to issue a verdict.

Question 40

JMOL Judgment as a matter of law

Answer 40

At conclusion of opposing party’s case or any time after until submitted to a jury. Make it when no reasonable basis for jury to find in favor of opponent. The court asks whether a reasonable jury can find in favor of the opposing party looking at facts in light most favorable to the nonmoving party.

Question 41

Renewed JMOL

Answer 41

At conclusion of evidence from both parties and after jury returns a verdict the motion aks the judge to reconsider original JMOL and states the jury unreasonably returned verdict for other party. Test is that No reasonable jury can find in favor of the opposing party. (Must have first filed a JMOL). Judge can’t consider credibility of witnesses and weight of evidence.

Question 42

Motion for a new trial

Answer 42

May be filed with a renewed JMOL. Asks judge to rule conditionally on the motion for new trial. Used when there is a grave error committed during tiral e.g. admission of inadmissible evidence. The verdict must be against the weight of the evidence. The judge may look at credibility and weight of evidence.

The standard is LOWER than JMOL because it is not a verdict change.

Question 43

Discovery rule 26

Answer 43

PArties must engage in discovery. Rule 26 requires parties meet and confer within a month or two of service or process. Parties must report how, when, where, what, form of discovery to the court that arises from the meet and confer. Discovery is only available after meet and confer. (Before that can produce documents or submit requests to other side)

Question 44

Initial disclosures

Answer 44

Mandatory disclosures for each side even without discovery request. Required at or within 2 weeks of meet and confer. FAilure to disclose prevents use of evidence in case unless good reason for not using it or nondisclosure was harmless.

Required: (1) names and contact info of all people likely to have discovery information and type of information of people supporting claim or defenses. (that supprot, not those that are detrimental to party); (2) documents that support your claim or defense; (3) computation of damages and supporting docs unless privilged; (4) relevant insurance info; (5) must provide a copy of emails as part of its initial disclosures. Without waiting for a discovery request, a party MUST provide copies or descriptions of electronically stored information that is in the diclosing party’s posession or control and that the disclosing party may use to support its claims or defenses.

Question 45

Regular discover (must ask for it)

Answer 45

May ask for any information relevant to parties claim or defense and must be disclosed upon request. Evidence does not need to be admissible in court. The request must be proportional so that the burden of disovery can’t outweigh the benefit of defending the case.

Question 46

Priviledged information

Answer 46

Do not have to disclose privileged information, but do have to disclose neough information so a court can determine if claim of privilege is valid.

Privileged work product is any material created in anticipation of litigation and is protected as trial preparation material. E.g. work product from non-attorney such as medical exam or investigator memo are included. But, if company had practice to create the document then it is not in anticipation of trial even if it occurred after the incident. E.g. accident report must be disclosed.

Material may have to be dislosed if there is a substantial need for it or it can’t be obtained without substantial hardship. The court could require disclosure of work product as long as it is not “absolute work product” such as trial strategies which are aboslutely protected.

Identities are never work product. Workproduct does not cover underlying facts.

Question 47

Priviledged information

Answer 47

Do not have to disclose privileged information, but do have to disclose neough information so a court can determine if claim of privilege is valid.

Privileged work product is any material created in anticipation of litigation and is protected as trial preparation material. E.g. work product from non-attorney such as medical exam or investigator memo are included. But, if company had practice to create the document then it is not in anticipation of trial even if it occurred after the incident. E.g. accident report must be disclosed.

Material may have to be dislosed if there is a substantial need for it or it can’t be obtained without substantial hardship. The court could require disclosure of work product as long as it is not “absolute work product” such as trial strategies which are aboslutely protected.

Identities are never work product. Workproduct does not cover underlying facts.O

Question 48

Interrogatories

Answer 48

Questions for the oppsoing to party to answer in writing under oath. E.g. names of all witnesses and addresses. Parties have 30 days to respond. The ROG may not include more than 25 written questions including subparts unless court order or stipulation. May inquire into legal contentions.

Question 49

Deposition

Answer 49

Testimony under oath of witnesses and parties. Serve notice of deposition on all parties which requires time, place, manner of deposition. The notice is sufficient to compel a party attendance, but must subpoena a nonparty and actually have to serve them. The deposition may not exceed 7 hours and may only do one per person unless by court order or stipulation

Objections to a depostion must be made and a court will decide later. If needed information is objected to, file mx to compel.

If opposing party is a corporation or non-person, they have to designate someone who knows about the subject of the deposition. Notice must give neough information about the topics so they can designate someone.

Question 50

Subpoena duces tecum

Answer 50

A party can’t require a nonparty to give evidence without a subpoena and notice of deposition that requires them to bring the documents to the deposition.

Question 51

Request for production

Answer 51

Written request that the documents be made available for reviewing and copying, or inspect, measure, review information. Service request on party is sufficient to require production. Need subpoena for non-party.

Question 52

Request for admission

Answer 52

Written request that party admit, deny, or object. Helps narrow down the issues. If a party fails to admit without good cause and the matter is proved at trial, they may be liable for costs. Failure to deny is deemed admission. May only be sent to partys and must be responded to within 30 days of service. Admission may be withdrawn if just to do so and admissions are only good for current proceedings.

Question 53

Medical exam

Answer 53

Party may make opposing party complete medical exam for issue connected to the case. Requires court order and only for parties to the case. Only non-parties subject to medical exam are people under their custody and control e.g. child.

Question 54

Expert witness diclosures

Answer 54

Must disclose names of expert witneses who may be used at rial. Identity and written report prepared by expert that includes opinions to be expressed in testimony, basis for opinions including facts, qualifications, and how much expert is paid. Failure to disclose, unless justified or harmless, results in not being able to use expert at trial.

Communications between expert and party attorney is work product and not disclosed. Can depose expert with subpoena and pay them a reasonable fee.

If the expert is not inteded to be used at trial, they are not subject to disclosure. Probably not disoverable at all because they were hired to help with litigation so it is trial prep.

Question 55

Pre-trial disclosure

Answer 55

Identity of any witness testifying live or by deposition, anyything to be introdued at trial. Party doesn’t have to disclose evidence used solely for impeachment. Have to make pre-trial discloures no later than 30 days before trial.

Question 56

Certification and duty to ammend

Answer 56

Party attorney is required to sign discovery request or response and certifies that it is warranted, not for impropery purposes such as harassment or delay, and is not unduly burdensome. Response certification shows information si accurate at time of disclosure. Violation of certification req leads to sanctions (expenses and attorney fees). Certification must be in good faith.

If a previous response is now incomplete or incorrect, file an amendment. Must provide new information or correct inaccurate responses.

Question 57

E-discovery

Answer 57

ESI requsted through req for production. Must specify the form e.g. computer program compatibility. If not specified, it is produced as is ordinarly maintained. CAn withhold ESI only if not reasonably accesible because of undue burden or cost.

Question 58

Witholding ESI

Answer 58

The requesting party will file mx to compel production (order of protection) and has to show assertion is justified and court may still require production but cover the costs.

ESI holder must take reasonable steps to preserve ESI even if litigation is anticipated; if ESI is lost despite reaosnable steps to presearve, and if requesting party is prejudiced, the court can order measures to extent necsessary to cure prejudice. E.g. order deposition. If ESI was destroyed with intent to avoid disclosure, court may order sanctions and presume ESI was unfavorable to disclosing party and instruct jury of presumption, or dismiss action or enter default judgment.

Question 59

Sanctions for delays or refusals

Answer 59

Severity depends on level of noncompliance.

Question 60

Sanction for partial failure to respond

Answer 60

Moving party must file mx to compel and certify they tried in good faith to resolve dispute with opponent. If court orders compel or discovery provided after the motion, the moving party receives expenses including attorneys ffees. If mx to compel is denied, court can issue protective order and award expenses and fees to nonmoving party. If partially granted, the court can apportion expenses including fees as it sees fair.

Question 61

Sanctions for bad faith failure

Answer 61

After a court grants a mx to compel but the opponent still fails to comply: The court may (1)issue an establishment order stating the facts asked for in discovery are taken as true (2) prohibit nondisclosing party from supporting certain claims or defenses or introducing certain evidence in trial; (3) strike pleadings; (4) stay proceedings; (5) dismiss action or enter default judgment.

Court may also order party in contempt for disobeying order. (won’t apply for refusing to do medical exam).

Question 62

Sanctions for complete failure to respond to discovery

Answer 62

E.g. don’t respond to interrogatories at all. The moving party moves for sanctions directly ( no mx to compel) and ceritifes they tried to resolve dispute. Can’t get contempt citation because there was no court order disobeyed here.