Civil Procedure

Question 1

When are two claims considered related for the purposes of supplemental jurisdiction?

Answer 1

When the claims arise out of a common nucleus of operative fact

Question 2

What are the four requirements for a class action?

Answer 2

(1) Numerosity
- the class must be so numerous that joinder of all members is impracticable
(2) Commonality
- there must be questions of law or fact that are common to the class
(3) Typicality
- the claims or defenses of the representatives must be typical of the class
(4) Adequacy
- the representatives must fairly and adequately protect the interests of the class

Question 3

Due process requirement for in personam jurisdiction

Answer 3

Satisfied if the D has sufficient minimum contacts with the forum state such that the maintenance of the action doesn’t offend fair play and substantial justice

Question 4

Where is venue proper?

Answer 4

generally, (1) district where any defendant resides (if they reside in the same state as the district), or (2) judicial district where a “substantial part of the events or omissions” on which the claim is based occurred, or if property, a “substantial part of the property” is located there

Question 5

Under Erie Doctrine, what law governs in a diversity action

Answer 5

in a diversity action, the court is to apply the substantive law of the state where it is located as long as there is no federal law on the point

For procedural law, federal law is applied even if it conflicts with a state rule or statute

Question 6

Requirements for plaintiff seeking a preliminary injunction

Answer 6

Must establish that:
(1) likely to succeed on the merits
(2) likely to suffer irreparable harm in the absence of relief
(3) the balance of equities is in his favor; and
(4) the injunction is in the best interest of the public

Question 7

What are the required elements for a complaint?

Answer 7

Under Rule 8(a), a complaint must include:
(1) a short and plain statement of the grounds that establish the court’s subject matter jurisdiction
(2) a short and plain statement of the claim establishing entitlement to relief; and
(3) a demand for judgement for the relief sought by the pleader

Question 8

Federal question jurisdiction

Answer 8

District courts have original jurisdiction over all actions arising under the Constitution, laws, or treaties of the US

Question 9

When can a party amend a pleading?

Answer 9

(1) Once as of right within 21 days if no responsive pleading is required; or
(2) if a responsive pleading is required,
- within 21 days of service of the responsive pleading or - within 21 days of being served with a motion under Rule 12(b), whichever is earlier

Court should freely give leave to amend a pleading when justice so requires

Question 10

When may a plaintiff join as a permissive joinder?

Answer 10

Under Rule 20(a)(1), a person may join in one action as plaintiff if:
(1) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(2) any question of law or fact common to all plaintiffs will arise in the action

same circumstances apply to permissive joinder of defendants under Rule 20

Question 11

Under Rule 20 permissive joinder, does the plaintiff to be joined have to meet the requirements of federal subject matter jurisdiction?

Answer 11

If multiple plaintiffs join together, then supplemental jurisdiction can exist for a claim that does not meet the statutory jurisdictional amount, provided the parties still meet the requirements of complete diversity

Question 12

When must an objection to improper venue be raised?

Answer 12

in a pre-answer motion to dismiss under Rule 12(b)(3) or in the first responsive pleading, if a motion under Rule 12(b)(3) is not filed

Question 13

5 bases for in personam jurisdiction

Answer 13

(1) voluntary presence
(2) domicile
(3) consent
(4) long-arm statutes
(5) attachment

Question 14

What is a compulsory counterclaim?

Answer 14

a pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if:
(1) the claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim; and
(2) the claim does not require adding another party over whom the court cannot acquire jurisdiction

note: a party who fails to assert a compulsory counterclaim waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court

Question 15

What are the three types of personal jurisdiction?

Answer 15

(1) in personam jurisdiction
(2) in rem jurisdiction
(3) quasi-in-rem jurisdiction

Question 16

What are the three types of class actions

Answer 16

(1) Risk of Prejudice
- class is maintainable if the prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or if prosecution of the claims through separate actions would impair the interests of the class members
(2) Final Equitable Relief
- a class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party
(3) Common Legal or Factual Questions
- a class can be certified if questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method of bringing about a fair and efficient adjudication of the controversy

Question 17

Replevin

Answer 17

Seizure of personal property in defendant’s possession that is transferred to plaintiff’s possession pending the outcome of suit

Question 18

Preliminary Injunction

Answer 18

Court order commanding or prohibiting specifies action while the case is pending

Question 19

Temporary restraining order

Answer 19

court order commanding or prohibiting specified action for 14 days or until preliminary-injunction hearing can take place (whichever occurs first)

Question 20

Attachment

Answer 20

seizure of person’s property to secure or satisfy future judgment

Question 21

Garnishment

Answer 21

court order directing third party to hold indebted party’s assets (eg wages) until further judicial notice

Question 22

Receivership

Answer 22

appointment of neutral third party to manage and administer disputed assets/property

Question 23

When bringing a class action under common legal or factual questions, what 7 pieces of of information must be stated in the notice provided to the members?

Answer 23

(1) the nature of the action
(2) the definition of the class
(3) the class claims, issues, or defenses
(4) that a class member may enter an appearance through an attorney if the member so desired
(5) that the court will exclude from the class any member who requests exclusion
(6) the time and manner for requesting exclusion; and
(7) the binding effect of a class judgement on members

Question 24

3 types of mandatory disclosures?

Answer 24

(1) initial disclosures
(2) disclosures of expert testimony 90 days before trial
(3) pretrial disclosures 30 days before trial

Question 25

When assessing if a case can be filed in federal court, when is diversity determined?

Answer 25

diversity is determined at the time the case is filed

note: no requirement that diversity exist at the time the cause of action arose

note: a change in citizenship or amount in controversy after the filing of the case will not affect diversity jurisdiction that that existed at the time of filing

note: change of parties as a result of substitution or intervention will not affect diversity jurisdiction

Question 26

How does a party make a demand for a trial by jury?

Answer 26

any party may make a written demand for a trial by jury

demand may be made separately or in a pleading- must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury, and filed with the court within a reasonable time after service

Question 27

How many interrogatories may a party serve on another party?

Answer 27

Any party may serve no more than 25 written interrogatories on any other party

Question 28

How long may a temporary restraining order remain in effect?

Answer 28

no longer than 14 days unless good cause exists or the adversary consents

Question 29

How much time does a party have to respond to interrogatories?

Answer 29

responding party must serve its answer and any objections within 30 days after being served

note: court may order, or the parties may stipulate, to a shorter or longer time

Question 30

What 3 factors will a court consider when deciding to set aside a default judgement?

Answer 30

(1) whether the defendant’s failure to act was willful
(2) whether setting the default aside would prejudice the plaintiff; and
(3) whether the defendant has presented a meritorious claim

Question 31

How long does a defendant have to respond to a complaint?

Answer 31

within 21 days of service of process

must respond either by answer or by a pre-answer motion

Question 32

Who is responsible for serving the summons and complaint and when must it be served?

Answer 32

Plaintiff must serve it within 90 days of filing the complaint

Question 33

How many peremptory challenges and challenges for cause does a party have?

Answer 33

Preemptory:
3
For cause:
unlimited

Question 34

What is the rule for removal when there are multiple defendants?

Answer 34

generally, all defendants who have been properly joined and served are required to join in or consent to the removal

if severed at different times and the later-severed defendant files a notice of removal, earlier severed defendants may join in on the removal

Question 35

What 7 defenses may be raised for a motion filed under Rule 12(b)?

Answer 35

(1) lack of subject matter jurisdiction
(2) lack of personal jurisdiction
(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 or indispensable party under Rule 19

Question 36

What defenses must be raised in a pre-answer motion or waived?

Answer 36

lack of personal jurisdiction
improper venue
insufficient process
insufficient service of process

Question 37

What is removal jurisdiction

Answer 37

any civil action commenced in a state court that is within the original jurisdiction of a US district court may generally be removed to the district court for the district and division in which the state court action is pending

generally, right of removal is a right of a defendant

Question 38

6 grounds for a court to grant a motion for a new trial

Answer 38

(1) error at trial that renders the judgement unfair
(2) newly discovered evidence that existed at the time of the trial, was excusably overlooked, and would likely have altered the outcome of the trial
(3) prejudicial misconduct of counsel, a party, the judge, or a juror
(4) verdict that is against the clear weight of the evidence
(5) verdict that is based on false evidence
(6) verdict is excessive or inadequate

Question 39

2 ways a defendant may consent to personal jurisdiction

Answer 39

Express: defendant agrees in advance to submit to jurisdiction of the court if a lawsuit is brought by the plaintiff, or stipulates to personal jurisdiction once an action is brought

implied: through conduct like filing a counterclaim or driving a vehicle in the state

Question 40

Requirements of claim preclusion

Answer 40

(1) valid final judgment on the merits
(2) sufficiently identical causes of action
(3) sufficiently identical parties

Question 41

“Well-pleaded complaint rule”

Answer 41

determination of federal question jurisdiction made by considering only the necessary elements of the plaintiff’s cause of action, not anticipated defenses, answers, or counterclaims

Question 42

Domicile and when it changes

Answer 42

state where the individual is present and intends to reside for an indefinite period

domicile changes when individual:
- established presence in a new place
- manifests intent to remain there for an indefinite period

Question 43

“principal place of buisness”

Answer 43

“nerve center” of the corporation

generally the location high-level officers direct, control, and coordinate the activities of the corporation

typically the nerve center is the corporate headquarters

Question 44

Home Court Advantage Rule

Answer 44

Prohibits the removal from a state to a federal court when:
1. SMJ arises under diversity
2. D is a state resident

Question 45

Personal jurisdiction can be waived when

Answer 45

it is not raised in a pre-answer motion or in the answer, whichever comes first

Question 46

Summary judgement standard

Answer 46

(1) no genuine dispute as to any material fact
(2) movant is entitled to judgement as a matter of law

Question 47

Standard of review for evidentiary rulings

Answer 47

abuse of discretion

Question 48

Collateral estoppel

Answer 48

can be used offensively in a second action to show a fact

a plaintiff does not need to have been a party in the first action

Question 49

What is the test for when information is discoverable?

Answer 49

Information need not be admissible to be discoverable. The test is whether the information sought is relevant to any party’s claim or defenses.

Party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative ( unless the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means)

Question 50

Spoilation of evidence

Answer 50

negligent or intentional destruction or significant alteration of evidence required for discovery