Civil Procedure

Question 1

Rule 4 Service of Process Contains?

Answer 1

Process consist of 2 docs: 1) Summons (formal court notice of suit) & 2) Copy of Complaint

Question 2

Rule 4 Service on Foreign Corp

Answer 2

Service on a foreign corp may be made:
1) in accordance with international treaty; if there is no treaty, service on a foreign corp may be made:
2) in accordance with the foreign country’s laws
3) as the foreign country directs in response to a letter request for guidance
4) by having the clerk mail process to the def, with a signed receipt requested or
5) by any other means not prohibited by international agreement as the court may order.

-Federal Rule 4 permits the court to authorize alternative methods of service in appropriate cases

-Fed. Rule 4 also specifically requires that the method of service ordered by the court be reasonably calculated to provide the defendant with notice of the action (this is a Constitutional requirement)

Question 3

Who Can Serve Process?

Answer 3

fed court → any person who is a nonparty AND at least 18, no court appt necessary

Question 4

When Must Process be Served?

Answer 4

If def is to be served w/in US, service must take place within 90 days of filing of complaint

Only way to survive a motion to dismiss for failure to effect timely service is to demonstrate good cause for failing to do so. “Good cause” is typically something beyond the party’s control.

Question 5

When Must Process be Served?

Answer 5

If def is to be served w/in US, service must take place within 90 days of filing of complaint

Question 6

Service of Process on Individual?

Answer 6

4 options:
1) Personal Service (in-hand delivery)
2) Substituted Service at A) D’s usual abode on B) someone of suitable age & discretion C) who resides there
*usual abode doesn’t have to live there everyday
3) Service on Agent → as long as receiving service is within scope of that agency
4) State law methods → methods for serving process that are permitted by the law of the state 1) where the fed court sits OR 2) where service is made (Generally, service of process by mail is allowed. BUT, state provision MUST be constitutional, meaning it must be reasonably calculated to give def notice of the action.)

Question 7

Service of Process on Business Org?

Answer 7

Deliver to an Officer (president, treasurer, secretary of corp) OR Managing/General agent

Question 8

Appeals

Answer 8

Only final orders are reviewable on appeal. An order for a new trial is not considered a final judgment in the federal system.

An appeal may be taken by filing a notice of appeal w/ the district court within 30 days from the entry of judgment

Question 9

Claim Preclusion
(Res Judicata)

Answer 9

-Bars a claimant from asserting the same cause of action in a later lawsuit.

-Requires:
1) Valid, Final judgment “on the merits”
2) Cases are brought by same claimant against same Def (same configurations of parties) and
3) Same cause of action or claim involved in the later lawsuit.

When claimant wins the 1st lawsuit, the cause of action is “merged” into the judgment

When the defendant wins 1st lawsuit, the claimant is “barred” by the earlier adverse judgment

Claim for legal and equitable relief is considered the same claim, so if 2nd suit seeks injunctive relief, claim preclusion can prevent.

-Dismissal of a case because the court does not have subject matter jurisdiction, because the service of process was improper, because the venue was improper or because a necessary party has not been joined, are not judgments on the merits.

Generally bind only persons who were parties to the original action, not strangers to the og action. But, there are exceptions to this general rule: if someone is closely linked enough to a party in the og action that there is a substantive legal relationship b/w them, that person may be bound by the 1st result for preclusive purposes, just as if that person had been a party in the og action. The substantive legal relationship puts them in privity w/ each other, which allows the non-party to be bound by the og action.

Question 10

Issue Preclusion (Collateral estoppel)

Answer 10

A judgment binds a P/D (or their privies) in subsequent actions on different causes of action b/w them (or their privies) as to issues actually litigated and essential to the judgment in the first action.

For issue preclusion to apply:
1) Judgment must have been final
2) The Issue actually litigated in the 1st case and
3) Issue must have been essential to the judgment

Issue preclusion is only asserted AGAINST someone who was a party (or in privity with a party) to the previous case.

Issue preclusion is only asserted BY someone who was a party (or in privity with a party) in the previous case.

Question 11

Erie Doctrine

Answer 11

Erie Doctrine mandates that when there is DIVERSITY jurisdiction, federal courts must apply state substantive law & federal procedural law

**Erie analysis on MBE → pay close attention to the facts. If the court is not sitting in diversity and is exercising federal q jrdx, then federal law will apply & no need to examine applicable state law.

Question 12

What law applies in federal jurisdiction cases?

Answer 12

Federal law

Question 13

Erie Analysis

Answer 13

1) Is issue substantive or procedural? If substantive → apply state law. If procedural → apply federal law. If something in the middle (neither substantive or procedural) → go to step 2.

2) Use one of 3 tests below

-Outcome Determinative test: Does the choice of law impact the outcome of the case? If so, apply state law.

-Forum Shopping test: Would failing to apply state law lead more people to want to litigate in federal court (aka encourage forum shopping?) If yes, then apply state law

-Balance of Interest Tests: Does the state have a greater interest in having its own law applied than the federal law? If so, apply state law.

Question 14

Erie: Generally, for what types of rules will the balance of interests fall in favor of the state?

Answer 14

-Remittitur
-Additur
-Notice of Claim Requirements
-Issue Preclusion Rules

Question 15

Erie: Substantive Issues

Answer 15

Generally these are substantive:
-choice of law rules
-statutes of limitations
-elements of a crime or case
-burdens of proof

Question 16

Subject Matter Jurisdiction

Answer 16

Federal courts are courts of limited jurisdiction. In other words, in order for a federal court to have subject matter jurisdiction over a claim, it must have been granted subject matter jurisdiction by statute.

By statute, federal courts have been granted subject matter jurisdiction primarily in two areas - federal question jurisdiction and diversity of citizenship jurisdiction.

Question 17

Federal Question Jurisdiction

Answer 17

For federal question jurisdiction to be proper, the case must arise under the Constitution, laws, or treaties of the United States.

Question 18

Diversity of Citizenship Jurisdiction

Answer 18

For diversity of citizenship jurisdiction to be proper, there must be complete diversity of citizenship, meaning each plaintiff must be of diverse state citizenship from every defendant when the suit is filed, and the amount in controversy must exceed $75,000 based on the plaintiff’s good faith claim.

A person’s state citizenship is determined by his domicile ( the state in which he is physically present and in which he intends to remain permanently or for an indefinite period). A corporation is a citizen of every U.S. state and foreign country in which it is incorporated and the one U.S. state or foreign country in which it has its principal place of business.

An unincorporated association (Partnership, LLC) takes on citizenships of all of its members. [If it’s a Limited Partnership, only include citizenship of General & Limited Partners]

A representative of a decedent, minor or incompetent takes on citizenship of person represented.

Class action citizenship is that of the named representative.

Jurisdiction is denied, however if an alien who has been admitted to permanent residence in the U.S. is domiciled in the same state as an adverse party.

Question 19

Federal Courts & Domestic Relations Decrees

Answer 19

Generally, federal courts will not take jurisdiction over actions involving the issuance of a divorce decree, alimony, or a child custody decree. This exception is very narrow, as the case must relate to the issuance of such a decree.

Question 20

Permissive Joinder

Answer 20

Under the Federal Rules, Permissive Joinder allows a plaintiff to join multiple defendants if:
1) some claim against each defendant relates to or arises out of the same series of occurrences or transactions, AND
2) there is a question of fact or law common to all the parties.

The policy is to permit the adjudication of all claims arising out of a single transaction.

Remember, joinder here is permissive, not mandatory

Question 21

Questions of Fact on Appeal

Answer 21

JURY TRIAL: findings of fact by a jury are given great deference

When jury decides questions of fact, Court of Appeals will affirm unless reasonable people could not have made that finding.

BENCH TRIAL: Court of Appeals will affirm unless the findings are clearly erroneous

An appellate court will conclude that a finding was “clearly erroneous” if it has a definite and firm conviction that a mistake has been committed.

Question 22

Questions of Law on Appeal

Answer 22

No deference given to trial judge on questions of law. (This includes when a judge gives a jury instruction that summarizes a question of law)

On appeal, when it is alleged that trial judge erred on a pure matter of law, the appellate court will conduct a de novo review & may substitute its judgment for that of the trial judgment.

Question 23

Discretionary Issues on Appeal

Answer 23

Many decisions by trial court judges are discretionary. On appeal, the standard of review is whether the judge “abused her discretion” in making her decision.

This means that the judge’s ruling will not be overturned on appeal unless it is Plainly Wrong OR Without an Appropriate Basis.

-deferential standard

Question 24

Mixed Questions of Law & Fact

Answer 24

Reviewed de novo.

(bc involves law so reviewed de novo. No deference is given when it pertains to matters of law)

Question 25

Nonmutual Defensive Issue Preclusion

Answer 25

Person asserting preclusion to avoid liability was not party to 1st case and is the Defendant in Case 2.

Federal law & most states say this is fine, as long as person against whom you are using, had a full chance to litigate in Case 1.

Question 26

Nonmutual Offensive Issue Preclusion

Answer 26

Person using preclusion was not a party to Case 1 and is the Plaintiff in Case 2.

Most states say No. BUT, federal common law and some states will allow non-mutual offensive issue preclusion if it would be fair.

Fairness Factors - in determining whether nonmutual issue preclusion is fair, court will consider whether:
1) Party to be bound had a full & fair opportunity to litigate in Case 1
2) Incentive to Litigate: The party to be bound had a strong incentive to litigate Case 1
3) Discouraging Breakaway Suits: The party asserting issue preclusion could have easily joined Case 1
4) Multiple Plaintiff Anomaly: If there are numerous potential plaintiffs waiting in the wings, a court would be less likely to permit offensive estoppel
5) Whether there are procedural opportunities available to a party in the 2nd action that were not present in the 1st, which might make a difference in the outcome
6) Whether the issue is one of law or fact
7) Whether the def in the 2nd action is the govt (in which case offensive non-mutual use of collateral estoppel will hardly ever be allowed)
4) There have been no inconsistent findings on the issue

Question 27

Renewed Motion for Judgment as a Matter of Law - Procedurally Proper?

Answer 27

In determining whether to grant a renewed judgment as a matter of law, the court must determine 1) whether the party previously moved for a JMOL, and 2) what the grounds for the previous motion were.

Under the Federal Rules of Civil Procedure, a judgment as a matter of law must be made at some point during the trial. A party also is limited to the grounds raised in the initial JMOL. (In other words, a party is unable to “renew” an objection that was not raised in the initial motion, as there would be no objection to renew).

The party also must make the renewed motion for JMOL within 28 days of the judgment.

Question 28

Motion for New Trial

Answer 28

Generally, a motion for new trial may be granted because of some serious error that occurred during the trial.

Instances of serious errors include:
-an error in admission of evidence
-error in instructing the jury
-verdict is against the great weight of the evidence
-juror misconduct
-verdict is excessive or inadequate.

In theory, a new trial could be granted if the jury’s verdict represents a serious error of judgment, but the judge may not replace the jury verdict with the verdict he would have reached.

Have 28 days after entry of judgment to make.

Question 29

Can you bring a RJMOL & a Motion for New Trial together?

Answer 29

Yes. Because each motion has a different basis, they may be brought together.

Question 30

Venue

Answer 30

Venue refers to the court where a cause of action is adjudicated.

Venue is proper in any federal district court where:
1) Any defendant resides, as long as all defendants reside in the same state OR
2) Where a substantial portion of the events giving rise to the claim occurred
OR
3) If there is no district in which an action may otherwise be brought (doesn’t fall into residential venue or transactional venue), then any judicial district in which any defendant is subject to the court’s personal jurisdiction. PJ exists over a def who is present within the forum state when he is served with process.

Question 31

Transfer of Venue

Answer 31

Transfer of venue allows for a transfer of a case from one trial court to another trial court in the same judicial system. So a federal district court may transfer the case to another federal district court, but it cannot transfer a case to a state court.

Transferor → original court
Transferee → court to which case is sent
Transferee must be a proper venue & have PJ over the D.

Question 32

Transfer from Proper Venue

Answer 32

If the original district is a proper venue, that court can order transfer based on convenience of the parties and witnesses and in the interests of justice. Burden is on person seeking transfer (usually the D). Court will consider both public & private factors showing that another court is the center for gravity for the case. No time limit.

-Public → court will consider what law applies, what community should be burdened with jury service, the desire to keep a local controversy in a local court
-Private → court considers convenience. It will look to where witnesses are, where def’s and evidence are found.

-Effect on Choice of Law → transferee court usually must apply choice of law rules of transferor court

-Effect of Forum Selection Clause→ federal law enforces these clauses as long as not unreasonable. Only public interest factors are considered & will enforce unless public interest factors say otherwise

Question 33

Transfer (or Dismissal) for Improper Venue

Answer 33

If venue improper, court will 1) Transfer if in interest of justice OR 2) Dismiss.

-Effect on choice of law → when the fed court transfers a diversity case bc the original venue is improper, the transferee applies its own choice of law rules (bc makes sense here this is the correct venue)

Question 34

Sanctions on a Party for Making a Claim Not warranted by existing law or frivolous argument?

Answer 34

No. The court must not impose a monetary sanction on a represented party on the ground that the party’s atty violated Rule 11(b)(2).

While the monetary penalty might be appropriate for the attorney, it cannot be imposed on the man.

Question 35

Remittitur

Answer 35

Court offers P a choice, P can either remit part of damages award OR go through a whole new trial (and might not win anything)

Allowed in BOTH state and federal court
(Remember: Remittitur “resides” in BOTH state and federal court. Whereas, additur only in state court)

Court cannot simply lower the figure that was set by the jury bc that would violate 7A.

Question 36

Additur

Answer 36

Court offers D a choice, add to the damages award OR go through new trial (and might lose more money)

Allowed in state court, but NOT federal court bc additur violates 7A and 7A applies only in federal court. [additur absolutely not allowed in federal court]

Question 37

Interlocutory Appeal

Answer 37

If the District Court’s order is not a final judgment, you might still get to appeal under one of the below doctrines:

1) Interlocutory Appeals of Injunctions as of Right → by statute, orders granting, modifying, or refusing Preliminary or Permanent Injunctions are reviewable as of right despite the fact that the order may not be final (excludes TRO’s unless extend beyond 28 days bc then becomes prelim injunction)

2) Interlocutory Appeals Act → allows a nonfinal order to be appealed if: 1) District judge certified that involves a controlling issue of law w/ substantial ground for differing opinion AND 2) Court of Appeals agrees to hear it (at least 2 appellate court judges agree to hear the appeal)

3) Collateral Order Doctrine → Appellate court has discretion to hear an appeal on an issue if that issue: 1) Is distinct from the merits of the case, 2) Involves an important legal question, and 3) Is essentially unreviewable if parties await a final judgment

4) Multiple Claims or Parties → when more than one claim is presented in a case, or when there are multiple parties, the District Court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is no just reason to delay appeal

5) Class Action → Court of Appeals has discretion to review an order granting or denying certification of a class action. The party seeking review must do so at the Court of Appeals within 14 days of the order.

6) Extraordinary Writ (Mandamus or Prohibition) → an extraordinary writ of mandamus or prohibition is an original proceeding in the Court of Appeals to compel the District judge to make or vacate a particular order. The writ is not a substitute for appeal. It is available only if the District Court is violating a clear legal duty.

Question 38

Waivable 12(b) Defenses

Answer 38

These defenses are waived if not put in the first Rule 12 response (motion or answer)

Remember: 3 P’s & a V
-Lack of PJ
-Improper Process (problem w/ the papers)
-Improper Service of Process
-Improper Venue

Question 39

“Final Judgment” for Bench Trial

Answer 39

At a bench trial, the judge serves as both the finder of fact and the decider of law.

A final judgment in a bench trial requires the trial judge to set forth the factual findings AND legal basis for the judgment.

Question 40

Collateral Order Doctrine

Answer 40

The collateral order doctrine is a narrow exception to the finality requirement for appeals. Under the collateral order doctrine, a claim or issue may be immediately appealable if it is too important to wait until the final judgment. 3 requirements must be met:
1) The lower court must have conclusively determined the disputed question
2) The issue must be separate from and collateral to the merits of the main issue of the case, AND
3) The issue must be effectively unreviewable on an appeal from the final judgment.

Collateral order doctrine is meant to be used only for extreme cases and so far has only been applied to cases involving matters of immunity and double jeopardy.

Question 41

Discovery

Answer 41

Generally, discovery may be had of any nonprivileged matter that is relevant to the claim or defense of any party, including the identity of persons having knowledge of relevant facts.

The cost of discovery and the needs of the case will also be considered.

However, work product of lawyers and others prepared in anticipation of litigation is discoverable ONLY on a showing of substantial need and to avoid undue hardship in obtaining the material from other sources.

Question 42

Prepared in Anticipation of Litigation?

Answer 42

A document is NOT prepared in “anticipation of litigation” if no case had been filed at the item, or any indication that litigation was threatened or that any impressions or trial strategy of the party’s atty was involved in making the reports.

Question 43

If Requesting Info that Includes Both Relevant info & Info that may be outside scope

Answer 43

On a showing of good cause, the court could order disclosure of any information that is relevant to the subject matter of the current litigation.

If the file/or whatever contains info that is irrelevant → The court probably will have to make an in camera inspection of the file and redact out any information that is irrelevant to the current litigation.

Question 44

JMOL or Renewed Motion for JMOL - Substantively Proper?

Answer 44

At issue is when the court may overturn the jury’s verdict when ruling on a motion for renewed JMOL.

To grant a motion for JMOL or a renewed motion for JMOL, the court must find that a reasonable jury would not have a legally sufficient basis to find for the party on the issue. The court must view the evidence in the light most favorable to the nonmoving party and without considering the credibility of witnesses.

Remember: high hurdle to take a case from the jury.

Question 45

Motion for New Trial Based on Juror Misconduct

Answer 45

At issue is whether alleged juror bias and nondisclosure of information are grounds for a new trial. Generally, granting a new trial based on juror bias or misconduct is only available when some serious error occurs during the trial.

Then just apply & discuss facts.

Question 46

Is the granting or denying of a TRO immediately appealable?

Answer 46

Ordinarily, the granting or denying of a temporary restraining order is not immediately appealable bc it is an order not an injunction. (Only injunctions are immediately appealable)

A TRO is valid for 14 days, unless the TRO is extended for good cause for a like period (14 more days). If an extension goes beyond 28 days, courts have held that the TRO is effectively converted into a Preliminary Injunction & thus becomes immediately appealable.

Question 47

Affirmative Defenses

Answer 47

Affirmative Defenses inject a new fact into the case that would allow the def to win. Affirmative defenses are WAIVED if not asserted in the answer.

Classic Affirmative Defense:
-Contributory negligence
-Statute of Limitations
-Statute of Frauds
-Res Judicata
-Self-Defense

Question 48

Expert Testimony

Answer 48

Expert Testimony is admissible if:
1) The subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue
2) The opinion is based on sufficient facts or data,
3) The opinion is the product of reliable principles and methods, and
4) The expert has reliably applied the principles and methods to the facts of the case

-An expert is generally not prohibited from giving an opinion as to the ultimate issue in the case (although there is a limited exception for testimony as to a criminal defendant’s mental state)

-There is no requirement that an adverse party have notice or an opportunity to participate in an expert’s testing process.

Question 49

Supplemental Jurisdiction

Answer 49

Once a court has original jurisdiction over some claim in the action, it may also exercise supplemental jurisdiction over additional claims that are part of the same case of controversy.
[Must have diversity or federal q jrdx before supplemental jrdx applies.]

A party may use supplemental jurisdiction to have their claim heard in federal court if the claim meets the “nucleus of operative facts” test.

Assuming the court finds that the standard of “nucleus of operative facts” is met, then the court must consider whether there are any discretionary reasons to decline to exercise jurisdiction. Discretionary grounds for declining jurisdiction include the presence of novel or complex issues of state law in the case, state law claims that predominate over the federal claim, in the case, or the district court’s dismissal of all the claims over which it has original jurisdiction.

RESTRICTION: Cannot use supplemental jurisdiction if 1) asserted by a plaintiff, 2) in a diversity case, and 3) is asserted against a citizen of the same state as the plaintiff

Question 50

Recognition of Preclusive Effect of Judgments

Answer 50

When dealing with the preclusive effect of a judgment, the recognizing court should not give a judgment any greater effect than the rendering state would.

When Case 1 has been decided in state court, the court in Case 2 generally will apply the claim or issue preclusion of the jurisdictions hat decided Case 1. Look to what rendering jurisdiction would do.

Question 51

Jury in Civil Trials

Answer 51

A jury must be composed of at least 6 jurors at the beginning of the trial.

If the number drops below 6 (if jurors become ill for ex), a mistrial results, unless the parties agree to a lesser number of jurors.

Question 52

Removal

Answer 52

Procedure allowing defendant to move a case from state court to federal court.

Standard for Removal: Case filed in state court could have been brought in federal court (so diversity or federal q requirements need to have been met for D to remove)

D files a notice of removal in federal court. (Federal court will remand if removal improper).

D must remove no later than 30 days after service of process.

Plaintiff CANNOT remove.

Limits on Removal:
1) Forum-defendant rule provides that a suit that is removable solely on the basis of diversity cannot be removed if any of the parties in interest is a citizen of the state in which the action is brought.
2) 1 yr time limit → Case should not be removed if it has been more than 1 yr after the case was filed in state court.

Question 53

Dismissal Based on Forum Non Conveniens

Answer 53

Applies when there is another court that is the center of gravity for the case BUT the court cannot transfer the case to that court because it is in a different judicial system (ex: foreign country).

Court must weigh the private & public interests in keeping the action or dismissing it. Where would be the most convenient place to try the action?

Question 54

2 Dismissal Rule

Answer 54

A dismissal by notice is without prejudice unless the plaintiff has previously dismissed any federal or state court action on the same claim, in which case the dismissal by notice is with prejudice. Second dismissal will operate as an adjudication on the merits.

Question 55

Error Re Jury Instructions

Answer 55

In order to reserve its right to appeal an error in a jury instruction given or, a failure to give an instruction, a party must object on the record before instructions are given. If adequately preserved, the instructions are reviewed using an abuse of discretion standard.

But if objection was not made, then court’s review is limited to considering whether there was a
plain error in the jury instructions that affected a substantial right.

Question 56

Harmless Error

Answer 56

Not every error requires reversal on appeal. No reversal is required if the error is harmless, meaning it did not affect the outcome of the case

Remember: you are not entitled to perfection

Question 57

Def’s Response

Answer 57

D must respond by 1) Motion or 2) Answer within 21 days (or 60 days if def waived service)

Question 58

Motion to Strike (in Response to Pleading)

Answer 58

Before responding to a pleading or, if no responsive pleading is permitted, within 21 days after service of the pleading, a party may move to have stricken any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.

Question 59

Legal & Equitable Claims Joined in One Action Involving Common Fact Issues

Answer 59

If legal & equitable claims are joined in one action involving common fact issues, the legal claim should be tried first to the jury and then the equitable claim to the court, but the jury’s finding on fact issues will bind the court in the equitable claim.

Question 60

Personal Jurisdiction

Answer 60

Personal jurisdiction refers to the court’s ability to exercise power over a defendant. In order to exercise personal jurisdiction over a defendant, the exercise must first be authorized by state statute, and second, the exercise of personal jurisdiction must be constitutional (minimum contacts test).

STATE STATUTE:
[If long arm statute is provided, just use that. If statute is not provided, just note that you need a state statute. Assume that the state statute has been met & move on to constitutional analysis.]

Federal district courts may exercise personal jurisdiction to the same extent as the courts of general jurisdiction of the state in which the district court sits. Here, State A’s long-arm statute authorizes its courts to exercise jurisdiction as far as the U.S. Constitution allows. So the question is whether the defendant has sufficient contacts with State A such that State A could constitutionally exercise jurisdiction over him.

CONSTITUTIONAL:
SPECIFIC JRDX: The due process clause of the Fourteenth Amendment permits states to assert personal jurisdiction over nonresident defendants who have established minimum contacts with the state such that the exercise of personal jurisdiction would not offend traditional notions of fair play and substantial justice. This test may be met even if a nonresident has only a few contacts with the state, so long as the contacts relate directly to the causes of actions asserted. This is referred to as specific jurisdiction. Under the test for specific jurisdiction, a nonresident defendant is subject to specific jurisdiction when its contacts with the forum state demonstrate purposeful availment of the benefits of the forum state, and the cause of action is related to those contacts.

(If specific jrdx → go to Fairness factors. If no specific jrdx → analyze general jrdx. If no general jrdx, then no PJ)

GENERAL JRDX: Personal jurisdiction may also be general, meaning that the court has personal jurisdiction over the defendant for all causes of action. The Supreme Court has held that general jurisdiction requires the defendant to be “at home” in the jurisdiction, which requires the defendant to be domiciled in the state. General PJ → 2 ways to get general PJ over human: 1) D to be “at home” in forum, at home=state of domicile. 2) General PJ if D served with process in forum. For corp, at home is 1) every state in which it is incorporated and 2) the one state it has its PPB

FAIRNESS: Even when a nonresident defendant has the necessary minimum contacts with the state, the exercise of personal jurisdiction over the defendant may offend due process if it is inconsistent with traditional notions of fair play and substantial justice. The burden is on the defendant to make a compelling case that the fairness considerations outweigh the existence of minimum contacts.
Fairness Factors: Convenience, State’s interest, Plaintiff’s interest.

-Stream of Commerce? The Supreme Court has rejected the “stream of commerce” theory of personal jurisdiction and held that merely placing a product in the stream of commerce with awareness it might reach a particular state was not sufficient to exercise jurisdiction over the manufacturer of the product.

Question 61

Summary Judgment

Answer 61

Made during disco or within 30 days after close of disco.

Standard for SJ: Party moving for SJ must show that there is no genuine dispute of a material fact AND the party is entitled to judgment as a matter of law.

In an SJ motion, the court can look at evidence. Parties proffer the evidence, usually 1) affidavits, 2) declarations, 3) deposition testimony, or 4) interrogatory answers. These are considered evidence because they are all under oath.

Judge does not assess credibility on a SJ motion (bc credibility is a fact question for the jury).

To defeat the motion, the non-movant must submit evidence to rebut the movant’s evidence. Non-movant can defeat summary judgment by showing there are genuine issues of material fact that must be decided at trial.

To determine whether to grant a motion for summary judgment, the court views all evidence submitted by the parties in a light most favorable to the nonmoving party. (Accept nonmovant’s evidence if true if conflicts with moving parties’ evidence)

If party opposing SJ needs more time to find evidence to oppose the motion, they may file an affidavit or declaration with the court stating what that evidence would be. Court may allow more time for the party to obtain evidence.

-“insufficient to establish def’s version of the facts”
-“insufficient to create a genuine issue of material fact because x’s statement is not a statement of fact, but an opinion as to how the issues should be resolved at trial.”
-“a jury could conclude”
-“if the evidence could give rise to two reasonable inferences. One that would support the nonmoving party, the court must assume the jury would draw that inference & deny the motion for summary judgment”
-“x’s affidavit regarding this immaterial fact is insufficient to defeat summary judgment”

Question 62

Motion to Dismiss for Failure to State a Claim

Answer 62

If P’s complaint fails to state a claim, the case may be dismissed.
[exact same motion, but made after the def has answered is a Motion for Judgment on the Pleadings]

Court looks only to allegations of facts in complaint. Court ignores legal conclusions, ignores evidence. Court then asks, do these facts (if true) state a plausible claim? Judge uses her experience and common sense to see if the facts state a plausible claim.

Judge may allow amendment. Court may allow P to amend the complaint to try to state a claim.

Question 63

FRCP Notice Pleading Requirement

Answer 63

A complaint must contain sufficient factual allegations to allow a district court to find that the claim is plausible, not merely possible.
Iqbal & Twombly

Question 64

Erie: Procedural Issues

Answer 64

-Notice pleading requirements
-pleading requirements

Question 65

JMOL: Timing & Court Consideration

Answer 65

Party can move for JMOL after the other side (non-moving party) has been heard at trial on that issue.

Court must determine, after it considers all evidence by both parties, whether there is legally sufficient evidence to support a judgment for the nonmoving party.

Question 66

Claim Joinder by Plaintiff

Answer 66

Plaintiff may join as many claims as P has against D, but must have SMJ over the claims

Question 67

Joinder: Necessary & Indispensable Parties

Answer 67

1) Is absentee (Nonparty) necessary/required?
-ASK:
A) Can complete relief be accorded
among existing parties?
B) Will absentee’s interest be
harmed?
C) Will defendant be subject to
multiple or inconsistent liability?
-Joint tortfeasors are never necessary

2) Can absentee be joined?
-Feasible if: 1) PJ over absentee AND 2) SMJ over claim by or against absentee. If feasible, bring them in. If not feasible, go to step 3.

3) Can case proceed without absentee?
-If necessary absentee cannot be joined, court must proceed or dismiss entire case.
-Court considers whether:
→ alternative forum available
→ actual harm to absentee is likely
→ court can shape relief to avoid
any harm

Indispensable Party: Party needed for action to proceed rather than be dismissed

Question 68

Claim Joinder by Defendant

Answer 68

these all start with C so they are by someone already in the case

1) Counterclaim → any claim back against complaining party, usually by def against P

2) Compulsory Counterclaim → arises from same transaction or occurrence. Use it or lose it!!

3) Permissive Counterclaim → does not arise from same transaction or occurrence. Can use it now or save it. But, must have SMJ over counterclaim. (federal, diversity or supplemental)

4) Crossclaim → claim against co-party arising from same transaction or occurrence. never compulsory, may sue now or separately. Must have SMJ over crossclaim.

Question 69

Impleader

Answer 69

if it starts with letter I, we are joining someone new

A defending party may implead a nonparty, but only if the nonparty is or may be liable to her for any part of a judgment that the plaintiff may recover against her.

Impleader claims are always permissive

Process to Bring in TPD:
1) D will file third party complaint naming TPD and
2) Have that formal complaint served on TPD (have to have PJ to serve this process)
-Right to implead within 14 days of serving the answer. After that, need court permission to implead.

After TPD joined, P may assert claims against TPD & TPD may assert claims against the P. Claims must arise from same trx or occurrence as underlying case. Each case need SMJ.

Question 70

Intervention

Answer 70

A non-party absentee uses intervention to bring herself into the case, choose to come in either as a P or D.

Application to intervene must be timely.

Claim of intervener MUST have SMJ.

Intervention of Right: If absentee’s interest may be harmed if she is not joined and if that interest is not adequately represented by the current parties

Permissive Intervention: if the absentee’s claim or defense and the pending case have at least one common question of law or fact, intervention would be permissive. Permissive intervention is usually allowed unless it’s going to complicate things, delay things, or prejudice somebody.

Question 71

Motion to Compel

Answer 71

If a party fails to provide discovery or provides incomplete discovery, the other party may move to compel discovery.

However, a motion to compel MUST certify that the moving party has made a good faith attempt to confer with the opponent to obtain the discovery without court intervention.

The certification (and an actual attempt at resolving the discovery dispute without court intervention) is a prerequisite to an award of reasonable expenses (which includes attorneys’ fees).

Question 72

Work Product

Answer 72

Absolute Immunity: documents containing subjective thoughts, such as legal theories, conclusions, opinions, and mental impressions, of a party’s lawyer or other representatives are given absolute immunity from disco which is nearly impossible to overcome

Qualified Immunity: all other documents prepared for litigation by either party are given qualified immunity. Qualified immunity can be overcome by the discovering party showing a substantial need for the materials and that an equivalent is not available through other means.

To determine whether a party seeking discovery of qualified privileged material; cannot, without undue hardship, obtain the equivalent info through other means, the court will consider the following factors:
-cost of obtaining the desired info through means other than the disco of the privileged material
-the finances of the party seeking disco, and
-if what is sought is a transcript of a witness’s statement, the hostility of the witness to the discovering party

Question 73

Amended Pleadings

Answer 73

Plaintiff: has a right to amend her complaint once no later than 21 days after the defendant serves his first Rule 12 response (answer or motion)

Defendant: has right to amend his answer once no later than 21 days after serving it.

Question 74

Amended Pleadings after time to amend expires: If no right to amend

Answer 74

After the period as of right is over, the amending party must:
1) Seek leave of court OR
2) Get the written consent of the opposing party

Leave to Amend: Court will usually grant leave to amend if justice so requires. Generally, in federal court they will let you amend unless you’ve delayed too long OR it’s going to prejudice the party OR the amendment would be futile

Question 75

Variance

Answer 75

*Can ONLY come up at trial

Variance comes up when the evidence at trial does not match what was pleaded. If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence. If other party does object, that evidence would not be admissible bc its at variance with the pleadings.

Question 76

Relation Back: Amendment After SOL has Run

Answer 76

1) To Join a Claim Not Originally Asserted: Amended pleadings relate back if it concerns the same conduct, transaction, or occurrence as the original pleading. If unrelated, it will not relate back. Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid an SOL problem.

2) To Change a Defendant: This kind will relate back if you can show 3 things:
1) Amendment concerns same conduct, trx, or occurrence
2) D has knowledge of case so won’t be prejudiced by amendment (knowledge must have come w/in period for service of process aka 90 days after filing of complaint)
3) D knew or should have known that, but for a mistake, she would have been named originally
**only when P sues wrong def first, but right defendant knew about it. Has to be mistake of identity not a strategic choice decision

Question 77

Notice of Dismissal v. Voluntary Dismissal by Filing Motion with Court

Answer 77

Notice of Dismissal: (w/o permission from court) available only until def answers or moves for SJ. If def answers or moves for SJ then need to file motion w/ court

Voluntary Dismissal by filing Motion: filing motion w/ court, dismissal order is w/o prejudice

Question 78

Judgment on the Pleadings

Answer 78

A judgment on the pleadings may be made after the pleadings are closed.
(if def asserted a counterclaim, P must file an answer to counterclaim before moving for judgment on the pleadings)

Question 79

Class Action

Answer 79

A class action involves a single plaintiff or small group of plaintiffs who represent a larger group or “class” of people who share a common interest. A class action may be useful when the number of plaintiffs is too large

In a class action, only the named class representative must satisfy the requirements of PJ, SMJ, and venue.

FRCP 23 lays out 5 requirements of a class action, including that the case must:
1) be so large that joinder of all members is impracticable
2) contain common questions of law or fact shared by the class
3) Typicality requirement: have claims or defenses from the named representatives that are typical of those in the class
4) have representatives that fairly and adequately protect the interests of the class, and
5) meet the definition of one of 3 types of classes enumerated, including classes where:
-a single action is necessary to avoid inconsistent outcomes or impairment of absent members’ interests,
-injunctive or declaratory relief is necessary in response to a defendant’s actions or inactions, or
-common questions of fact or law among the members prevail over individual members’ issues

Certification: at some point before trial, a federal court must certify the action, meaning the court must affirmatively determine that the lawsuit meets the requirements of FRCP 23. Until certification has occurred, the action is called a putative class action.

Question 80

Class Action Fairness Act (CAFA)

Answer 80

CAFA adds protections to class action suits in federal court, including the expansion of subject matter jurisdiction over many large class action lawsuits

CAFA permits federal courts to preside over certain class actions in diversity jurisdiction where:
1) the aggregate amount in controversy exceeds $5 million
2) the class comprises at least 100 plaintiffs, and
3) there is at least “minimal diversity” between the parties (at least one plaintiff class member is diverse from at least one defendant)

Question 81

Class Action Seeking Injunctive Relief

Answer 81

Members of a class seeking injunctive or declaratory relief are not entitled to notice of the claim. So for class actions that do not concern a common question of fact or law, all class members will be bound by the judgment rendered in class action lawsuits, even when a class member did not receive notice of the suit.