Civil Procedure

Question 1

How may a corporation be served?

Priority: High

Answer 1

A corporation may be served by either: delivering the summons and complaint to an officer, managing agent, general agent, or agent authorized by law to receive process; or by following state law in the state where the district court is located or where service is made.

Question 2

What law governs procedural issues in a diversity action?

Priority: High

Answer 2

If a procedural issue in a diversity action is addressed by a valid federal law, then the federal law will be applied, even if a state rule or statute is in conflict.

Question 3

When do federal courts have diversity jurisdiction?

Priority: High

Answer 3

U.S. district courts have diversity jurisdiction over civil actions when the parties are citizens of different states and the amount in controversy exceeds $75,000.

Under federal law, a U.S. district court has diversity jurisdiction over a matter if no plaintiff shares the state of citizenship of any defendant and the amount in controversy in the case exceeds $75,000.

Question 4

When is diversity jurisdiction determined?

Priority: High

Answer 4

Diversity jurisdiction is determined at the time the action is commenced; a post-filing change of citizenship is irrelevant absent bad faith.

Question 5

Where is a corporation considered to be a citizen for a diversity action?

Priority: High

Answer 5

A corporation is a citizen of every state where it has been incorporated and of the state where it has its principal place of business.

A corporation’s principal place of business is its “nerve center” where the officers manage the activities. Typically this is the corporate headquarters.

Question 6

What is necessary to satisfy the amount in controversy requirement in a diversity action?

Priority: High

Answer 6

In general, a plaintiff’s good-faith assertion in the complaint that the action satisfies the amount-in-controversy requirement is sufficient, unless it is legally certain that the plaintiff cannot recover the specified amount.

A claim for injunctive relief is valued by either the benefit to the plaintiff or the cost of compliance for the defendant.

Question 7

When may a plaintiff aggregate their claims to meet the amount in controversy requirement?

Priority: High

Answer 7

A plaintiff may aggregate their claims against one defendant, or against multiple defendants if all are jointly and severally liable.

Question 8

What is a third-party claim (impleader) and when are they available?

Priority: Low

Answer 8

Third-party claims (impleader) are claims made by a defending party against a nonparty for all or part of the defending party’s liability of an original claim.

The impleaded claim must relate to the original claim against the defending party.

Question 9

How does the court judge whether a claim is related to join an impleaded defendant?

Priority: Medium

Answer 9

In judging whether the claims are related, the test is whether they arise out of a “common nucleus of operative fact” such that all claims should be tried together in a single proceeding.

Question 10

How does a federal court determine whether it can exercise personal jurisdiction?

Priority: High

Answer 10

A federal district court will look to the jurisdictional statutes of the state where it is located to determine whether it can exercise personal jurisdiction over the parties.

Question 11

How do long-arm statutes provide a means of jurisdiction?

Priority: High

Answer 11

State long-arm statutes provide a means of exercising jurisdiction over nonresident defendants, provided it complies with due process.

Question 12

What is necessary to satisfy the due process requirement for personal jurisdiction for nonresidents?

Priority: High

Answer 12

In general, due process requirements are satisfied if the nonresident defendant has SUFFICIENT MINIMUM CONTACTS with the forum state such that the maintenance of the action does not offend TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE

Question 13

When does a defendants contacts meet traditional notions of fair play and substantial justice?

Priority: High

Answer 13

A defendant’s contacts with a forum state must be purposeful and substantial, such that the defendant should reasonably anticipate being taken to court there.

Foreseeability depends on whether a defendant recognizes or anticipates that by running his business, he risks being party to a suit in a particular state.

Question 14

What determines the scope of contacts necessary for personal jurisdiction?

Priority: High

Answer 14

The scope of contacts necessary depends on the relationship that the cause of action has with the forum state.

Question 15

When is specific personal jurisdiction exist?

Priority: High

Answer 15

For specific personal jurisdiction to exist, there must be an affiliation between the forum and the underlying controversy, activity or an occurence that takes place in the forum state and is therefore subject to the state’s regulation.

Specific personal jurisdiction may be warranted when a cause of action ARISES OUT OF OR RELATES TO THE DEFENDANT’S CONTACTS WITH THE FORUM STATE.

Question 16

When does general personal jurisdiction exist?

Priority: High

Answer 16

When a cause of action does not arise out of or relate to the defendant’s contacts with the forum, general personal jurisdiction is warranted only when the defendant is ESSENTIALLY AT HOME in the forum state.

Question 17

What is federal question jurisdiction?

Priority: High

Answer 17

Federal courts have original jurisdiction of all civil actions arising under the laws of the United States.

Question 18

When does federal question jurisdiction exist?

Priority: High

Answer 18

Federal question jurisdiction exists if a well-pleaded complaint alleges a claim that arises under federal law, the U.S. Constitution, or United States treaties.

(In general, if the cause of action is expressly created by federal law, and federal law provides the underlying right, then federal question jurisdiction will exist)

Question 19

What is the well pleaded complaint requirement?

Priority: High

Answer 19

Under the well-pleaded complaint rule, the federal issue must be presented in the plaintiff’s complaint.

The determination of jurisdiction must be made by considering only the necessary elements of the plaintiff’s cause of action, and not potential defenses.

Question 20

When can supplemental jurisdiction be asserted in a federal question claim?

Priority: High

Answer 20

When the district court’s subject matter jurisdiction for a claim is based on the existence of a federal question, additional claims against the same party can be heard by the court through the exercise of supplemental jurisdiction if THE COMMON NUCLEUS OF OPERATIVE FACT test is met.

Question 21

When do claims arise out of the common nucleus of operative fact?

Priority: High

Answer 21

Claims arise out of a common nucleus of operative fact if they are part of the SAME CASE OR CONTROVERSY and should be tried together.

Question 22

When may a district court decline to exercise supplemental jurisdiction?

Priority: High

Answer 22

A district court has discretion to decline to exercise supplemental jurisdiction (1) over claims that raise new or complex state law issues or that substantially predominate over claims within original federal jurisdiction; (2) when the claims within the court’s original jurisdiction are dismissed; or (3) if there are other compelling reasons for declining jurisdiction in exceptional circumstances.

Question 23

Where is an individual considered to be a citizen for diversity jurisdiction?

Priority: High

Answer 23

For an individual, citizenship is determined by domicile. In general, a person is a domiciliary of the state in which they are present and intends to reside for an indefinite period.

Question 24

How can a foreign defendant be served?

Priority: High

Answer 24

Generally, a foreign defendant may be served by any matter not prohibited by international agreement so long as it is reasonably calculated to give notice.

A foreign corporation cannot be served by personal service.

Question 25

When is service of process consistent with the Due Process Clause?

Priority: High

Answer 25

To meet the Constitution’s due process requirements, service must be reasonably calculated to make a litigant aware of the action and allow an opportuinity to object.

Question 26

What choice of law rules does a federal court apply in diversity cases?

Priority: High

Answer 26

The Supreme Court has held that a federal court exercising diversity jurisdiction over non-federal claims must apply the choice -of-law rule of the state in which it sits.

Question 27

How is diversity determined in a class action?

Priority: Low

Answer 27

Diversity in a class action brought pursuant to Rule 23 will generally be determined by the citizenship of the named members of the class bringing the lawsuit.

Question 28

When is minimal diversity sufficient in a class action?

Priority: Low

Answer 28

For certain class actions with at least 100 class members, and the amount at issue totals more than $5,000,000, diversity will be met if any member of the plaintiff class is diverse with any defendant.

Question 29

What substantive law does the court apply in a diversity action?

Priority: High

Answer 29

When an action is commenced in U.S. district court, the court must determine the substantive law and rules of procedure that will govern the action.

In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located, if there is no federal law on point.

Question 30

What procedural law is applied in a diversity action?

Priority: Medium

Answer 30

With regard to procedure in a diversity action, if a procedural issue is addressed by a valid federal law, such as a statute, then the federal law will be applied, even if a state rule or statute is in conflict.

Question 31

What are the requirements for a class action to be authorized?

Priority: Medium

Answer 31

Rule 23(a) establishes four requirements for representative members of a class to sue or be sued on behalf of all members of the class:

(1) the class must be so numerous that joinder of all members is impracticable (numerosity);

(2) there must be questions of law or fact that are common to the class (commonality);

(3) the claims or defenses of the representatives must be typical of the class (typicality); and

(4) the representatives must fairly and adequately protect the interests of the class (adequacy).

Question 32

When can lack of subject matter jurisdiction be raised as a defense?

Priority: High

Answer 32

A defense of lack of subject matter jurisdiciton may be raised at any time throughout litigation, even on appeal.

Question 33

What is claim preclusion?

Priority: High

Answer 33

The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits of an action precludes the parties form successive litigation of an identical claim in a subsequent aciton.

Question 34

When can claim preclusion apply?

Priority: High

Answer 34

For claim preclusion to apply, the claimant and the defendant must be the same, and in the same roles, in both the original action and the subsequently filed action.

Because application of claim preclusion is limited to the parties, or their privies, a similar action by a different party would not be precluded.

Question 35

What is issue preclusion?

Priority: High

Answer 35

The doctrine of issue preclusion (collateral estoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim.

Question 36

Does issue preclusion require mutuality of parties?

Priority: High

Answer 36

Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded, or one in privity with that party, must have been a party to the original action.

Question 37

What is necessary for issue preclusion to apply?

Priority: High

Answer 37

For issue proclusion to apply (1) the issue sought to be precluded must be the same as the one involved in the prior action; (2) the issue must have been determined by a valid and binding final judgment; and (4) the determination of the issue must have been essential to the prior judgment.

Question 38

What is necessary for issue preclusion to apply?

Priority: High

Answer 38

For issue proclusion to apply (1) the issue sought to be precluded must be the same as the one involved in the prior action; (2) the issue must have been determined by a valid and binding final judgment; and (4) the determination of the issue must have been essential to the prior judgment.

Question 39

Can issue preclusion be used offensively?

Priority: High

Answer 39

Because issue preclusion does not require strict mutuality of parties, it can be used offensively to prevent a party from relitigating an issue in a previous action. Even if the preclusion is sought by someone who was not a party originally.

Question 40

When is offensive issue preclusion inappropriate?

Priority: High

Answer 40

A court has broad discretion to determine when issue preclusion should apply. If a plaintiff could have easily joined the earlier action the use of issue preclusion offensively would be unfair, and the court should prevent it.

Question 41

When can a defendant remove a case to the federal court?

Priority: High

Answer 41

Generally, the defendant in any civil action filed in state court has the right to remove it to the federal district in which the state court action was filed as long as the civil action is within the original jurisdiction of the court.

Removal is not proper if any defendant is a resident of the forum state, or if removal is sought more than 30 days of either service of the summons or receiving the initial pleading.

Question 42

When may venue be trasferred?

Priority: High

Answer 42

For the convenience of the parties and in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

Question 43

Where is venue proper?

Priority: High

Answer 43

Venue is proper in a judicial district where any defendant resides or in a judicial district where a substantial part of the events or omissions on which the claim is based occurred.

Question 44

How will a court consider transfer based on a contractual forum selection clause?

Priority: High

Answer 44

When transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect.

If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching.

Question 45

Is a forum selection clause proper if it is unenforceable under applicable state law?

Priority: High

Answer 45

The Supreme Court has held that a forum selection clause should be given “controlling weight in all but the most exceptional cases,” even if the clause is unenforceable under applicable state law.

Question 46

What law is applied when venue is transferred?

Priority: High

Answer 46

Generally, if the venue of an action is transferred when the original venue is proper, the transferee court must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law.

Question 47

What law is applied when venue is transferred based on a forum selection clause?

Priority: High

Answer 47

When venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the chohice-of-law rules, of the state where it is located.

The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.

Question 48

When is discovery permitted?

Priority: Medium

Answer 48

Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action. Information within the scope of discovery need not be admissible in evidence to be discoverable.

The test is whether the information sought is relevant to any party’s claim or defense.

Question 49

What is the work product doctrine?

Priority: Medium

Answer 49

In general, a 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.

Question 50

When may a party obtain work product?

Priority: Medium

Answer 50

Work product will be subject to discovery if 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 51

What is spoliation?

Priority: Medium

Answer 51

Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence required for discovery.

Question 52

When do litigants have a duty to preserve evidence?

Priority: Medium

Answer 52

When litigation is reasonably anticipated, even if it has not yet been commenced, potential litigants in possession of potentially relevant evidence have a duty to preserve that evidence.

Question 53

Once the duty to preserve is triggered, what must a party do?

Priority: Medium

Answer 53

Once a duty to preserve evidence is triggered, the party in possession of the evidence must take reasonable measures to preserve it.

If a party has a policy in place that results in routine operations that may destroy evidence, such as electronically stored information, that party must affirmatively act to prevent the destruction or alteration of such evidence, even if the destruction would typically occur in the regular course of business.

Question 54

What happens if a party fails to preserve electronically stored information?

Priority: Medium

Answer 54

A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation.

Question 55

When can a party be sanctioned for spoliation?

Priority: Medium

Answer 55

Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery.

Question 56

What should the court consider when determining sanctions for spoliation?

Priority: Medium

Answer 56

In determining sanctions, the court should consider the prejudice to the other party and the intent of the party that failed to preserve the evidence.

Question 57

What sanction is appropriate when retrieval of the spoiled information is possible?

Priority: Medium

Answer 57

When retrieval of the information is possible, even if typically considered inaccessible due to cost of retrieval, a court may order it and assign the costs to the party who destroyed the evidence. No further sanctions may be imposed.

Question 58

When can a party be sanctioned for failure to preserve electronic information?

Priority: Medium

Answer 58

If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order alternate sanctions against the wrongful party, limited to the court’s discretion of those necessary to cure any prejudice to the other party.

Question 59

What sanctions are available for intentional spoliation of electronic information?

Priority: Medium

Answer 59

If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s use in litigation, then the court may:

(1) presume that the destroyed or lost information was unfavorable to the sanctioned party;

(2) Instruct the jury that it may or must presume the information was unfavorable to the party;

(3) dismiss the action; or

(4) enter a default judgment against the party.

A default judgment is an extreme remedy and is rarely used by the courts, especially when the prejudice may be cured by an adverse jury instruction or some other sanction.

Question 60

What is Rule 11?

Priority: Medium

Answer 60

Rule 11 establishes the standards that attorneys and individual parties must meet when filing pleadings, mostions, or other papers, and provides sanctions for violations of the rule.

Question 61

What are the requirements for pleadings under rule 11?

Priority: Medium

Answer 61

Under Rule 11(a), every pleading, written motion, and other paper filed with the court must be signed by at least one attorney of record, or by a party personally if unrepresented.

Question 62

What does a party certify when signing a pleading under rule 11?

Priority: Medium

Answer 62

Under Rule 11(b), by presenting to the court a pleading, written motion, or other paper, the signing attorney or unrepresented party certifies that to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances

(1) the paper is not being presented for any improper purpose;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Question 63

How may a party seek sanctions for violations of rule 11?

Priority: Low

Answer 63

A motion for sanctions must be made separately from any other motion and must describe the specific conduct alleged to violate Rule 11.

The motion must first be served on the opposing party under Rule 5. The opposing party must then be given 21 days to withdraw or correct the challenged pleading. If this 21-day “safe harbor” period passes, and the opposing party fails to correct the pleading, the party seeking sanctions may file the morion with the court.

Question 64

Who may the court impose sanctions on for violations of rule 11?

Priority: Medium

Answer 64

Under certain circumstances, after notice and a reasonable opportuntiy to respond, the court may, in its discretion impose sanctions on attorneys, law firms, and parties for violations of Rule 11.

Question 65

What sanctions may the court impose for rule 11 violations?

Priority: Medium

Answer 65

Sanctions are limited to what will deter misconduct in the future.

Sanctions may include nonmonetary directives or an order to pay a penalty into court.

If sanctions are imposed on motion and warranted for effective deterrence, an order directing payment to the movant for reasonable attorney’s fees and other expenses directly resulting from the violation may be appropriate.

Question 66

Is a law firm liable for its partners for rule 11 violations?

Priority: Medium

Answer 66

Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

Question 67

When can a court not issue monetary sanctions?

Priority: Medium

Answer 67

The court is not permitted to impose a monetary sanction against a represented party for violating the requirement that the legal contentions of the paper be warranted by existing law or by a nonfrivolous argument.

Question 68

When does a nonparty have the right to intervene in a case?

Priority: Medium

Answer 68

Under Rule 24, a nonparty has the right to intervene in an action when, upon timely motion, (1) the nonparty has an interest in the subject matter of the action, (2) the disposition of the action may impair the nonparty’s interests, and (3) the nonparty’s interest is not adequately represented by existing parties.

The burden is on the party seeking to intervene.

Question 69

What is a temporary restraining order and how long does it last?

Priority: High

Answer 69

A TRO preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction.

A TRO has immediate effect and lasts no longer than 14 days unless good cause exists.

Question 70

When can a TRO be issued?

Priority: High

Answer 70

A TRO can be issued without notice of the adverse party if the moving party can show (1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and (2) the efforts made at giving notice and the reasong why notice should not be required.

Additionally, the party seeking a TRO must give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully restrained.

Question 71

What is a preliminary injunction and how long does it last?

Priority: High

Answer 71

A preliminary injunction preserves the status quo of the parties until the end of the case.

Question 72

When can a preliminary injunction be issued?

Priority: High

Answer 72

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue.

Question 73

What must be proven to obtain a preliminary injunction?

Priority: High

Answer 73

A party seeking a preliminary injunction must establish that (1) the party is likely to succeed on the merits; (2) the party is 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.

Additionally, the party seeking the preliminary injunction must provide security to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully enjoined.

Question 74

What is required for subject matter jurisdiction?

Priority: High

Answer 74

For a federal district court to have subject matter jurisdiction over a complaint, it must have either federal question jurisdiction or diversity jurisdiction.

Question 75

What is required for diversity jurisdiction?

Priority: High

Answer 75

For diversity jurisdiction to exist, both the amount in controversy and diversity of citizenship requirements must be met.

Question 76

What is the amount in controversy requirement?

Priority: High

Answer 76

The amount in controversy requirement mandates that the amount in controversy must exceed $75,000.

In general, a plaintiff’s good-faith assertion in the complaint that the action satisfies the amount in controversy requirement is sufficient, unless it appears to be a legal certainty that the plaintiff cannot recover the amount alleged.

Question 77

What is the diversity of citizenship requirement?

Priority: High

Answer 77

For the diversity of citizenship requirement to be met, there must be complete diversity between opposing parties when the action is filed.

There is no diversity of citizenship if any plaintiff is a citizen of the same state as any defendant.

Question 78

Where is an individual a citizen for diversity purposes?

Priority: High

Answer 78

For an individual to be a citizen of a state, the individual must be a citizen of the United States and a domiciliary of the state.

Question 79

Where is an individual domiciled?

Priority: High

Answer 79

In general, an individual is a domiciliary of the state in which she is present and intends to reside for an indefinite period. An individual can have only one domicile at a time.

Question 80

When does an individual’s domicile change?

Priority: High

Answer 80

The presumption is that a place of domicile continues until it is definitively changed (present with intent to reside indefinitely). An intent to move without relocating to another state will not result in a change in domicile.

Question 81

What is specific personal jurisdiction?

Priority: High

Answer 81

When a cause of action arises out of or closely relates to a defendant’s contact with the forum state, jurisdiction may be warranted over that action even if that contact is the defendant’s only contact with the forum state.

Question 82

When is a corporation at home in a state for general personal jurisdiction?

Priority: Medium

Answer 82

A corporate defendant is always at home in the state of incoropration and the state of its principal place of business.

In exceptional cases, a corporate defendant’s operations in another forum may be so substantial and of such a nature as to render the corporation also at home in that state.