Civil Procedure

Question 1

Is the granting or denying of a TRO ordinarily immediately appealable?

Answer 1

Generally no, as it is not an injunction. But if it is extended for good cause for a longer period and thus is like an injunction, it is converted and therefore appealable.

Question 2

When does traditional basis for personal jurisdiction exist?

Answer 2

Where D:
1. Consents to jurisdiction in the forum state
2. Is domiciled in the forum state (physical presence + subjective intent to remain)
3. present in the forum state when served with process

Question 3

What is a phrasing of the minimum contacts standard?

Answer 3

D must have sufficient minimum contacts such that asserting jurisdiction does not offend traditional notions of fair play and substantial justice.

Question 4

When can a Federal Court exercise supplemental jurisdiction over a claim?

Answer 4

When the claim arises from a common nucleus of operative fact as the other claims the court has SMJ over (roughly same T&O)

Question 5

What are the limitations of supplemental diversity?

Answer 5

• Can’t be used to overcome lack of diversity
• cannot be asserted if it would violate complete diversity
• does not apply to claims by original P against third party D

Question 6

When can a D remove a case to federal court?

Answer 6

If:
1) federal court has SMJ;
2) all defendants agree;
3) no defendant is a resident of the forum state (for diversity); and
4) removal sought within 30 days of the Summons or receiving initial pleading

Question 7

Who cannot ever remove to Fed. Court?

Answer 7

Plaintiff! Only defendant can

Question 8

What are two main categories of personal jurisdiction?

Answer 8

1) Traditional bases of jurisdiction and
2) long-arm jurisdiction

Question 9

What are the traditional bases of jurisdiction?

Answer 9

a) domicile
b) presence in state when served
c) consent; OR
d) Waiver (appearing in action without objecting)

Question 10

How can a federal court assert PJ over a non-resident under long arm jurisdiction?

Answer 10

1) State must have long-arm statute; and
2) comply with constitutional due process requirements

Question 11

What are the two prongs of constitutional PJ?

Answer 11

Prong 1: Minimum Contacts
Prong 2: Fair Play & Substantial Justice

Question 12

What is required to meet Prong 1 of constitutional PJ?

Answer 12

Minimum Contacts
a) General Jurisdiction
Contacts so substantial that D is essentially at home in the state, or individual/corporation is at home in the state (domicile)
b) Specific Jurisdiction
Connection between forum state and underlying controversy, and lawsuit arises from D’s contact with the state

Question 13

What is the deadline for service of the summons and complaint?

Answer 13

Within 90 days of filing with the court

Question 14

If service is not timely made, what must the court do?

Answer 14

Either
a) dismiss the action without prejudice against that D or
b) order service be made again within specified period of time

Question 15

When is Venue proper in a district?

Answer 15

Any district where:
1) any defendant resides, if all defendants are residents of forum state;
2) a substantial portion of claim occurred;
3) a substantial portion of property is located, or

IF NONE OF THE ABOVE:
where the D is subject to court’s PJ

Question 16

If original venue was proper, when can the court transfer venue?

Answer 16

May transfer venue if:
1) needed for the convenience of the witnesses or in the interest of justice; AND
2) new court has PJ and SMJ

Question 17

Will courts enforce forum selection clauses?

Answer 17

Generally yes, unless special factors are present

Question 18

When can a preliminary injunction properly be issued?

Answer 18

Only
1) upon notice to the adverse party; AND
2) if the moving party gives bond/security (to reimburse if the moving party loses the case)

Question 19

What is the traditional test for a preliminary injunction?

Answer 19

1) Likelihood of P’s success on the merits
2) likely threat of irreparable harm to the movant
3) Harm alleged by movant outweighs any harm to non-moving party AND
4) injunction is in public interest

Question 20

What is required for a TRO to be issued?

Answer 20

Same test as preliminary injunction, and movant must allege immediate and irreparable harm

Question 21

When can a party get an ex Parte TRO? What other requirements must be met?

Answer 21

1) provide specific facts showing immediate and irreparable injury, loss, or damage will result before adverse party can be heard;
2) certify in writing efforts made to give notice and why notice should not be required; AND
3) provide security in amount court deems proper

Question 22

How long does a TRO last?

Answer 22

14 days, unless Court sets a shorter time frame or extends (or parties consent)

Question 23

When can a party amend as of right?

Answer 23

Can amend once as a right within 21 days of service of:
a) the original pleading OR
b) a responsive pleading or pre-answer motion

Question 24

When can a party amend not as of right?

Answer 24

If they have the opposing party’s written consent OR with leave of the court upon motion (if justice so requires)

Question 25

What is relation back doctrine for a new claim?

Answer 25

Amendment relates back so long as it arises out of same transaction or occurrence as original allegations

Question 26

What is relation back doctrine for a new defendant?

Answer 26

Relates back so long as:
1) same transaction and occurrence
2) new party received notice of the original action within 90 days of filing; AND
3) new party knew or should have known that action would have been brought but for mistake of their identity

Question 27

What are the requirements for a valid crossclaim?

Answer 27

must arise out of same T&O as original action or counterclaim

Question 28

When does Rule 11 NOT apply?

Answer 28

Discovery or discovery motions

Question 29

When can multiple P’s or D’s be joined in one civil action?

Answer 29

If:
1) Joint and several relief asserted OR claim arises out of same transaction or occurrence;
2) common question of law or fact exists; AND
3) SMJ is present for each claim

Question 30

When is a party required to be joined?

Answer 30

If
1) the party is necessary; AND
2) joinder is feasible

Question 31

What are the four main requirements for a class action suit?

Answer 31

1) Numerosity
2) Commonality
3) Typicality; AND
4) Adequacy of Representation

Question 32

What information is discoverable, generally?

Answer 32

Any non-privileged info that is:
1) Relevant to any party’s claim or defense; AND
2) proportional to the needs of the case

Question 33

What initial disclosures must be provided in discovery?

Answer 33

Under Rule 26(a), parties MUST provide the following to opposing parties within 14 days of the Rule 26(f) conference:
1) Contact info of individuals likely to have discoverable info, and info they likely possess;
2) Copy or description of all documents, ESI, and tangible things the party may use to support its claims/defenses;
3) computation of each category of damages; AND
4) Any insurance agreement that may be liable to satisfy a judgment in the action

Question 34

What is the motion to dismiss standard?

Answer 34

Requires the court to
1) consider the facts in the light most favorable to the non-moving party; and
2) determine if there is any any basis upon which relief can be granted

Question 35

When will a court grant a motion for summary judgment?

Answer 35

When:
1) There is no genuine issue of material fact AND:
2) Movant is entitled to judgment as a matter of law

Question 36

What is the standard for motion for judgment as a matter of law?

Answer 36

JMOL granted if:
1) the non-moving party has been fully heard on the issue during a jury trial; AND
2) The court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on that issue

Question 37

What are the elements of issue preclusion?

Answer 37

1) Valid and final judgment was rendered in first action;
2) Issue is identical to issue decided in prior action;
3) Issue was actually litigated, determined, and essential in prior action; AND
4) Party against whom enforcement is sought had a full and fair opportunity to litigate the issue in a prior action

Question 38

What constitutes a final judgment/decision?

Answer 38

One which:
1) ends litigation on the merits (ALL claims are resolved); and
2) leaves nothing for the court to do but execute the judgment

Question 39

What are exceptions to the final judgment rule?

Answer 39

1) Rule 54(b) exception
2) statutory exceptions
3) certified appeal exception
4) collateral order doctrine
5) writs of mandamus and prohibition
6) Pendent Appellate jurisdiction
7) Certification of class action

Question 40

When is organizational standing allowed?

Answer 40

Allowed to sue on behalf of members if:
1) suit is related to an issue germane to organization’s purpose;
2) members would have standing to sue; AND
3) members’ participation not necessary

Question 41

What is required for federal duties, imposts, and excises to be constitutionally valid?

Answer 41

Must be geographically uniform throughout US

Question 42

Can Congress compel a State to implement legislation?

Answer 42

No! But, can induce state government to do it by attaching conditions and restrictions under the spending power.

Question 43

Aside from preemption rules, what sorts of laws can states NOT pass under the dormant commerce clause?

Answer 43

Any laws that:
a) discriminate against out-of-state commerce; OR
b) place an undue burden on interstate commerce

Question 44

What are two key exceptions to the governmental / state action requirement?

Answer 44

Courts will find a private actor’s action to be a government action when:
1) it is a traditional public function OR
b) significant government involvement exists

Question 45

What does procedural due process normally require?

Answer 45

Notice and an unbiased hearing

Question 46

When may a government take private property for public use?

Answer 46

If it provides just compensation

Question 47

What counts as public use under takings doctrine?

Answer 47

Rational relation to a conceivable public purpose

Question 48

What counts as just compensation under the takings clause?

Answer 48

Fair market value at the time of the taking

Question 49

What can states not do under the Privileges & Immunities Clause of Article IV?

Answer 49

Cannot intentionally discriminate against non-residents concerning:
a) civil liberties (right to vote, travel interstate, etc.) OR
b) important economic activities (earning a livelihood)

Question 50

When are facially neutral laws prohibited under the Establishment Clause?

Answer 50

If they violate historical practices & understandings of the Establishment Clause

Question 51

What is the standard for government regulations regarding the content of speech?

Answer 51

Strict Scrutiny: Govt. must show:
1) regulation is narrowly tailored
2) to achieve a compelling governmental interest, and
3) the least restrictive means was used