Civil Procedure

Question 1

Personal jurisdiction can be

Answer 1

Personal jurisdiction can be general (obtained by consent, presence, or domicile) or specific.

Question 2

If the MEE fact pattern discusses a case that takes place in a federal court, start your essay as follows:

Answer 2

“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.”

Question 3

If the issue is specific personal jurisdiction, state:

Answer 3

“State courts of general jurisdiction may exercise personal jurisdiction over nonresident defendants to the extent authorized by both the state’s long-arm statute and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.”

Then state: “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.”

Look for “purposeful availment” of the benefits and protections of the state. Then, examine the quality of the contacts with the state. (F2023, F2019, J2016, J2015, J2010, F2006, F2000, F1999)

Question 4

What is subject matter jurisdiction?

Answer 4

Subject-matter jurisdiction (SMJ) is the power of a court to hear a certain type of case. Federal courts are courts of limited jurisdiction—that is, they can only hear certain types of cases. There are three types of SMJ:

• Federal question jurisdiction
• Diversity of citizenship jurisdiction
• Supplemental jurisdiction

Question 5

First category of federal jurisdiction—federal-question jurisdiction:

Answer 5

The federal question must appear on the face of the plaintiff’s well-pleaded complaint. It cannot appear in the answer. Further, the plaintiff cannot merely anticipate a federal defense in its complaint. (On the MEE, this has virtually always been tested with personal jurisdiction. And, the issue has always been the well-pleaded complaint rule!) (J2016, J2015, J2010, F2006)

Question 6

Second category of federal jurisdiction—diversity jurisdiction:

Answer 6

Cases may be brought under diversity jurisdiction only if two requirements are met:

(1) there must be complete diversity of citizenship between the plaintiffs and defendants, and

(2) the amount in controversy must be over $75,000.00. Note that “complete diversity” is not required for class actions; rather, minimal diversity suffices. (J2022, J2019, F2019, F2015, J2013, F2012, J2010, F2010, J2009, J2007, F2006, F2005, J2004, F2004, F2002, F2000, J1997)

Question 7

Define domiciled

Answer 7

A person is domiciled “where it is her permanent home, a place where the person intends to remain indefinitely, and the place to which the person intends to return when temporarily absent.” A corporation is domiciled both where it is incorporated and where its principal place of business is located.

Question 8

What should you look for at the time the lawsuit is filed?

Answer 8

Where the party is domiciled.

Question 9

Third category of federal jurisdiction—supplemental jurisdiction:

Answer 9

This is an issue when there is a jurisdictional basis for one claim but not the other (e.g., a plaintiff brings a federal question claim and tacks on a related state claim). Remember that a plaintiff cannot use supplemental jurisdiction to add a claim against a nondiverse party if the sole basis for SMJ is diversity. (J2022, J2021, J2016, J2015, F2011, J2009, J2008, F2004, F2002)

Question 10

A note on removal under 28 U.S. Code § 1441:

Answer 10

Defendants (but not plaintiffs) may remove an action from state court to the federal court that geographically embraces it if the plaintiff could have initially brought the case in federal court. Generally, if the plaintiff could not have brought the case in federal court, then the defendant cannot remove it either. (F2012, J2009, J2007, F1996) Note: A defendant may not remove a case if he is sued in his home state and the only basis for removal is diversity. (This exception is not generally tested on the MEE.)

Question 11

Venue is proper in a district where

Answer 11

(1) any defendant resides if all defendants reside in the same state,
(2) in a district where a substantial part of the events or omissions giving rise to the claim occurred, or
(3) a substantial part of property that is subject to the action is situated. (There are also narrow fallback rules which, so far, have not been emphasized on the MEE.) (J2016, J2013, F2002, F1996)

Question 12

Where is a corporate defendant deemed to reside?

Answer 12

In any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. To figure out where a corporate defendant resides, divide the state into districts (if it has more than one district) and see if the defendant would be subject to personal jurisdiction in any of those districts. (J2013)

Question 13

Transfer to a more appropriate forum:

Answer 13

Under Title 28, U.S.C. §1404 (2011), the federal court has authority to transfer a case to another federal district for the convenience of the parties and witnesses and in the interest of justice. The new forum must have subject-matter jurisdiction and personal jurisdiction. The court will apply the law of the transferor forum. A motion to transfer to a more appropriate forum should be denied if the case could not have been filed there to begin with. (Note: This is different than “transfer to a proper venue” where a case is filed in the wrong venue, and, if transferred, the law of the transferee court would apply. Transfer to a proper venue has not been tested on the MEE.) (F2012, J2005, J2002, F2000, F1999, F1996)

Question 14

Summary judgment—Start your essay as follows:

Answer 14

“Federal Rule of Civil Procedure 56(a) allows a summary judgment motion to be granted only if there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Note that “a motion for summary judgment may be supported by depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.”

Question 15

In a motion for summary judgment, the moving party must

Answer 15

The moving party must produce evidence to show there is no genuine issue of material fact. The burden then shifts to the nonmoving party, which must then produce evidence to show that there is a genuine issue of material fact for trial. The motion is looked at in the light most favorable to the nonmoving party. (J2012, F2003, F1998, J1996, J1995)

Question 16

Key principle #4:

Answer 16

Be aware of summary judgment under Rule 56, where a case (or part of a case) is decided in favor of the plaintiff or the defendant without a trial.

Question 17

Key principle #5:

Answer 17

Temporary remedies, like preliminary injunctions and temporary restraining orders (TROs), are occasionally tested on the MEE. On the MEE, the party in the fact pattern generally seeks a TRO until the court decides whether to grant a preliminary injunction. So, generally, you should discuss both TROs and preliminary injunctions in your MEE answer.

Question 18

TROs:

Answer 18

A TRO can be issued without notice to the adverse party (but only in limited circumstances and for a limited time). To secure a TRO without notice, the plaintiff needs to show a risk of “immediate and irreparable injury.” The TRO lasts only long enough for the court to consider and resolve a request, but not longer than 14 days (unless the court extends it for good cause or the adverse party consents to an extension). TROs are considered to be stopgap measures and last until the court decides whether to grant a preliminary injunction. (J2014, J2005, F1997)

Question 19

Preliminary injunctions:

Answer 19

A preliminary injunction is equitable relief with the objective of preserving the status quo. If it is granted, the matter must be tried within six months unless the parties stipulate or good cause is shown. The court must give notice to the adverse party. There are four factors to consider (mnemonic=HELP):
(1) harm: the significance of the threat of irreparable harm to the plaintiff if the injunction is not granted,
(2) evaluation of injuries: the balance between this harm and the injury that granting the injunction would inflict on the defendant,
(3) likelihood of prevailing: the probability that the plaintiff will succeed on the merits, and
(4) the public interest. (J2014, J2005, F1997)

Question 20

Key principle #6:

Answer 20

Work product has been tested a few times on the MEE. Know its definition and why it matters if statements constitute work product.

Question 21

Define work product

Answer 21

Work product is any material prepared in anticipation of litigation. (If it is not prepared in anticipation of litigation, it is not work product!) Written statements given by witnesses might be discoverable even if they are considered work product if the other party can show substantial need and undue hardship. However, an attorney’s mental impressions are never discoverable. (F2014, F2007, F1995)

Question 22

Key principle #7

Answer 22

Note that final judgments are generally appealable and nonfinal judgments are generally not appealable. However, the MEE tends to test the exceptions!

Question 23

Final judgments Exceptions include

Answer 23

Exceptions include when there are final orders in cases involving multiple claims and multiple parties and some are still pending—the other parties may be able to appeal their orders; orders involving injunctions, garnishments, and other temporary remedies; interlocutory orders by leave; and orders constituting a final judgment on collateral matters. (F2023, J2011, J2006, J2001, F1996)

Question 24

Key principle #8

Answer 24

be aware of issue and claim preclusion.

Question 25

Issue preclusion:

Answer 25

Issues that were actually litigated and decided and essential to the judgment in a previous case cannot be litigated again. (F2021, F2013, J2001)

Question 26

Claim preclusion:

Answer 26

A claim that has been litigated to a final judgment on the merits cannot be relitigated by the parties (or their privies). (F2021, F2013, J2007, F2003)