CIVIL PROCEDURE

Question 1

PERSONAL JURISDICTION OVERVIEW

Answer 1

Personal jurisdiction (“PJ”) involves the court’s ability to exercise authority over parties of their property
> Core concept is fairness - i.e., is it fair for this court to exercise jurisdiction over this defendant>
—> Must balance states’ interest in protecting their citizens with individual due process rights
> Statutory and constitutional constraints can limit the court’s jurisdiction

Analysis - jurisdiction must be statutorily authorized and constitutional
> Statutory - an applicable state law must authorize jurisdiction
—>Usually a long-arm statute will apply
> Constitutional - jurisdiction must satisfy due process
—> Minimum contacts - parties must have minimum contact with the forum state
—> Adequate notice - Parties must receive adequate notice of the action

Question 2

STATUTORY LIMITATIONS ON PERSONAL JURISDICTION

Answer 2

State laws often determine when courts may exercise jurisdiction
> A federal court must analyze jurisdiction as would oa state court in which it sits and must follow applicable state statutes
> * Note - court’s exercise of jurisdiction must also satisfy constitutional requirements

Most state statutes grant courts in personam jurisdiction if either:
(a) Service of process - Defendant is personally served in the forum state
—> Duration of D’s presence is irrelevant
(b) Domicile - D is domiciled in the forum state
—> Domicile = Defendant maintains a permanent home in the forum state
—> Court can exercise jurisdiction over domiciled persons even if they are not physically present when served
(c) Consent - Defendant consents to jurisdiction (can be express or implied)
(d) States Long Arm Statute - Defendant acts fall within the state long-arm statute
—> Most common
—> General/Unlimited long-arm statute - confers state courts with jurisdiction to the extent allowed by the constitution
—> Limited/enumerated long-arm statute - specifies when state courts can exercise jurisdiction

Question 3

TYPES OF PERSONAL JURISDICTION (IN REM, QUASI IN REM, IN PERSONAM)

Answer 3

In rem - jurisdiction over property or status, including ownership disputes
> Courts adjudicate the rights of parties with respect to property
—> Judgment is binding as to the disposition of property rights or status, not as to parties personally
> Property must be physically located in the forum state
> Often involves estate issues, business proceedings, property disputes (e.g., action to quiet title, dissolve marriage, etc.)

Quasi in rem - jurisdiction over persons where property attached
> Property is attached for some reason not necessarily involving property itself - e.g., action against defendant and his assets due to fears defendant will flee the state
> Court may render judgment as to persons with respect to property (rather than judgment over person or property itself)

In personam - jurisdiction over persons
> Court may render judgment (money or injunction) against an individual personally
> Based on the person’s contact with the forum state
> *Note - type of jurisdiction most likely to be tested on the MBE.

Question 4

CONSTITUTIONAL LIMITATIONS ON PERSONAL JURISDICTION

Answer 4

To be subject to PJ, the defendant must have such minimum contact with the forum state that exercising jurisdiction does to offend the traditional notions of fair play and substantial justice.

Analysis - minimum contacts, foreseeability, fairness:
> Minimum contacts - Defendant must have sufficient minimum contacts with the forum state; inquiry focuses on:
—> Purposeful availment - the defendant must purposefully avail herself of the jurisdiction in the forum state (i.e., the defendant must take actions purposefully directed towards the forum state)
—> Forseeabiity - must be foreseeable that the defendant could be held accountable for her in-forum contacts
> Fairplay and Substantial Justice - given the defendant’s contacts, the exercise of jurisdiction must not offend these notions; look at:
—> Relatednes - are defendant contacts related to the claim in the present action?
> Note - this factor also determines whether jurisdiction is general or specific
—> Convenience - would litigating in the forum severely disadvantage the defendant?
—> State’s interest - does the forum state have an interest in providing redress for its residents or an interest in the outcome of the case?
> *Notice - separate constitutional requirements

Question 5

MINIMUM CONTACTS

Answer 5

What constitutes minimum contacts?
(1) Purposeful availment - Defendant must purposefully avail herself of the forum state’s laws, i.e., reach out in a non-accidental manner
—> E.g., using roads, doing business in the state, etc.
(2) Foreseeability - D must know or reasonably anticipate she could be held accountable for her activities in the forum state

Circumstances that give rise to sufficient contacts:
> Domiciled - Defendant is domiciled in the forum state
> Presence - Defendant is present in the forum state when served with process (but not tricked into coming to the forum state)
> Consent - Defendant consents to jurisdiction in the forum state

Circustances that may give rise to sufficient contacts:
> Website - interactive site will be more likely to give rise to minimum contacts; passive sites are less likely
—> Interactive - two way communication between user and operator (e.g., information exchanged for the purpose of solicitating business; purchases are allowed)
—> Passive - sites make information available to interested viewers, but no business is transacted
> Putting goods into the stream of commerce - manufacturers may be held liable if they could reasonably expect consumers to purchase their products in the forum state
—> But mere awareness that component parts may reach forum as part of another product may be insufficient.

Question 6

FAIRNESS FACTORS FOR MINIMUM CONTACTS & GENERAL VS. SPECIFIC JURISDICTION

Answer 6

Due process requires that assuming D has minimum contacts with the forum state, the exercise of jurisdiction must be fair (i.e., it must not offend traditional notions of fair play and substantial justice).

Factors - look at three factors determining if jurisdiction is fair:
(1) Relatedness of contacts & claim - does P’s claim arise from defendant’s contact with the forum state?
> Specific jurisdiction - claims rise from defendant’s in-state contacts
—> Only minimum contacts must be established
—> D can only be sued for claim arising from in-state contacts
> General jurisdiction - claims do not arise from D’s in-state contacts
—> D must have systematic, continuous contacts with forum state (e.g., doing business, domiciled)
—> If found, D can be sued in forum for any claim arising in or outside of forum

(2) Convinience - would jurisdiction in forum severely disadvantage ?
> Must be so inconvinient and difficult that D is inherently put as severe disadvantage compared to P

(3) States interest - does forum state have an interest in providing redress for its residents, or an interest in the outcome of the case?

Question 7

NOTICE REQUIREMENTS

Answer 7

Due process requires that D must be sufficiently notified of a pending lawsuit

Requirement - notice must be reasonably calculated under the circumstances to appraise interested parties of the pendency of the action and afford an opportunity to be heard

Methods of notice
> Traditional methods of notice satisfy due process
—> E.g., personal delivery, registered mail, delivery to an appointed agent
—> P need not deliver notice personally; can be given by court-appointed agent or agent hired y P
> If P knows notice was not received by D (e.g., by mail), P cannot proceed if a practical alternative to giving notice exists.

Question 8

IN REM & QUASI IN REM JURISDICTION

Answer 8

In rem - court adjudicates rights of all persons concerning property located in the forum state (does not bind parties personally)
> Statutory limit - Most States statutes provide for in rem jurisdiction in enumerated circumstances
> Constitutional limitations - jurisdiction based on the property being in the forum state
—> No jurisdiction will arise if the property is outside of the state or brought in through force or fraud.
—> *Notice - must at least be given by mail to persons with known addresses whose interests are affected

Quasi in rem - courts adjudicate rights between P and D with respect to property located in the forum state; two types:
(1) Type 1 - dispute between parties over rights to property within forum state (e.g., action to quiet title)
—> Jurisdiction based on the presence of property in the state is proper (the connection between claim and property provides minimum contacts)
(2) Type 2 - D’s property located in forum is seized or attached to obtain jurisdiction in dispute unrelated to property ownership
—> D must have minimum contacts
—> Courts adjudicate disputes based on their power over property; any judgments against D can be satisfied only out of that property
—> (less likely to be tested)

Question 9

SUBJECT MATTER JURISDICTION OVERVIEW

Answer 9

Federal courts must have authority over the claim in question (as opposed to the parties or property, which is the concern of PJ); SMJ refers to courts’ ability to exercise that authority
> The Constitution provides limits on the types of cases that federal courts can hear
> SMj cannot be waived

Question 10

DIVERSITY JURISDICTION

Answer 10

Federal courts have SMJ over controversies between citizens of different states, even where claims do not involve federal law
> Diversity jurisdiction conferred by constitution and by statute

Requirements:
(1) Complete diversity - Every P must be of diverse citizenship from every D (i.e., no diversity if any P is a citizen of the same state as any D)
—> Does not require that all parties be citizens of different states; just no P and no D can be from the same state (e.g., two P’s can be from Utah, as long as no D is from Utah)
—> Examined at time of filing - diversity need not exist when the claim arose
—> Diversity can exist between citizens of a U.S. state and a foreign country ( sometimes called “alienage jurisdiction)
(2) Amount in controversy must exceed $75,000
—> P must make good faith allegation that her claim exceeds $75,000

Exclusions to diversity jurisdiction - federal courts will not hear actions involving divorce, alimony, child custody, or probate, even if diversity requirements are otherwise satisfied

Question 11

DIVERSITY JURISDICTION: COMPLETE DIVERSITY

Answer 11

Every P must be of diverse citizenship from every D

Determining citizenship
> Natural persons - citizens of the state where they are domiciled at the time the suite is filed
—> Domicile - where a person maintains a permanent home
> A person cannot have more than one domicile
—> Factors - for determining peron’s domicile, look at:
> Physical - actual presence in the state
> Mental - intent to make state permanent home (e.g., where person votes, works, is licensed, etc.)
—> Decedants, minors, etc. - look to citizenship of decedant, minor etc., not citizenship of their legal representative ( e.g., look at minor, not legal guardian)

> Corporations - citizens of every state where incorporated and where corporation maintains its principal place of business (“PBB”)
—> Corporation can have multiple states of citizenship
—> Determining PBB; look to where corporate decisions are made, i.e., “nerve center” (usually corporate headquarters)

> Uniincorporated businesses (LLCs LLPs, etc.) - citizens of all states in which any of its partners or members are a citizen

Question 12

DIVERSITY JURISDICTION: AMOUNT IN CONTROVERSY

Answer 12

P’S COMPLAINT MUST MAKE A GOOD FAITH ALLEGATION THAT THE AMOUNT OF DAMAGES OR INJURY IN CONTROVERSY EXCEEDS $75,000, EXCLUDING INTERESTS AND COSTS
> To dismiss for insufficient amount, there must be no legal possibility that recovery will exceed $75,000
> Amount actually awarded is irrelevant

Equitable relief claims - court looks at the value of harm caused
> Can look from either P or D perspective - i.e., does the act requiring injunctive relief harm P by more than $75,000; or would it cost D more than $75,000 to comply with the injunction sought?

Aggregating Claims
> One P can aggrage all claims against a single D (e.g., must be one P vs one D)
> if not one P vs one D, can only aggregate if either:
(a) One P has joint liability claims against multiple Ds
—> Use total value of the claim
(b) Multiple Ps seek to enforce a single title or rightin which they have a common, undivided interest (rare)
—> E.g., several Ps jointly own real estate and sue D to quiet title - undivided interest, so aggreagtoin is ok

Question 13

FEDERAL QUESTION JURISDICTION

Answer 13

FEDERAL COURTS HAVE JURISDICTION OVER PROPERLY PLEADED CLAIMS THAT ARISE UNDER FEDERAL LAW
> No diversity or amount in controversy requirements

REQUIREMENTS - the claim must show a right or interest founded substantially on federal law
> Federal question must appear on the face of the complaint
—> FQJ cannot arise based on extraneous allegations or potential defenses
> Analysis - ask if p is enforcing a federal right (e.g., one that arises under federal statute, regulation, Constitution, etc.)
> *Note - beware of fact patterns in which a complaint raises a federal law or issue, but P is not enforcing a federal right

EXCLUSIVE FEDERAL JURISDICTION - federal courts have exclusive jurisdiction over certain types of claims, which must be heard in federal court
> Most common areas of exclusive federal jurisdiction:
(1) Bankruptcy
(2) Patent and copy right
(3) Federal antitrust claims
(4) Postal matters

Question 14

SUPPLEMENTAL JURISDICTION

Answer 14

SUPPLEMENTAL JURISDICTION ALLOWS A FEDERAL COURT TO HEAR ADDITIONAL CLAIMS (E.G., COUNTERCLAIMS AND CROSS-CLAIMS) THAT DO NOT, ON THEIR OWN, MEET DIVERSITY OR FEDERAL QUESTION JURISDICTION REQUIREMENTS.
> Cannot use supplemental jurisdiction to get a case into federal court

REQUIREMENTS - common nucleus of operative fact (CNOF)
> Each additional claim must share a common nucleus of operative fact with an existing claim that invoked FQJ or diversity jurisdiction
—> Satisfied if supplemental claims arise from the same transaction or occurrence as the underlying claim

DISCRETIONARY FACTORS - the court may refuse a supplemental claim if:
(a) Original jurisdiction claims are dismissed early in the proceeding
(b) Supplemental claim raises a novel or complex state law issue, or
(c) Supplemental claim substantially predominated over original jurisdiction claims

LIMITATION - in diversity cases, P cannot use supplemental jurisdiction to overcome lack of diversity (does not apply to D)
> However, P can use supplemental jurisdiction to overcome the lack of diversity for a claim in a federal question case
> P can also use supplemental jurisdiction to overcome an insufficient amount in controversy

Question 15

REMOVAL JURISDICTION

Answer 15

D CAN REMOVE A CASE ORIGINALLY FILED IN STATE COURTS TO FEDERAL COURT IF THE FEDERAL COURT WOULD HAVE HAD SMJ (I.E., DIVERSITY OR FQJ)

REMOVAL RULES:
(1) Can only be removed if the case could have originally been filed in federal court
(2) Only D can remove and all D must agree to the removal
(3) Can only remove to federal district embracing state court in which case was originally filed
(4) D who filed a permissive counterclaim in state court waives the right to remove
> Timing - D must remove within 30 days of service of the first removable document (usually service of process)
> Procedure - D must file a notice in state and federal courts
—> Notice must be signed, contain grounds for removal, and copies of all documents served on D in state court
—> Must be provided to all adverse parties

DIVERSITY JURISDICTION LIMITATIONS:
> D cannot remove if P filed suit in any D’s home state (i.e., no removal if any D is a citizen of the forum state)
> No removal more than one year after the case is filed in state court

REMAND - if removal is improper, the court can remand to the state court
> Improper procedure - P can move to remand within 30 days
> Lack of SMJ - P can remove at any time

Question 16

ERIE DOCTRINE

Answer 16

IN FEDERAL DIVERSITY CASES, FEDERAL COURTS MAY APPLY STATE SUBSTANTIVE LAW, BUT FEDERAL PROCEDURAL LAW
> If it is unclear whether the law is substantive or procedural, use the below analysis to determine if state or federal law applies

ANALYSIS:

(1) Is there a valid federal law (e.g., constitution, statute, federal rule) that is on point and directly conflict with state law?
> If yes, apply the federal law as long as it is valid

(2) If no federal law is on point, analyze under these tests:
(a) Outcome determinative - would applying or ignoring the state rule affect the outcome of the case?
—> if yes, the state law is substantive and should be applied
(b) Balance of interest - does either federal or state system have a strong interest in applying its rule?
—> if one has clearly stronger interest, apply that law
(c) Forum shopping avoidance - if federal court ignores state law, would it encourage littigants to flock to federal court?
—> if yes, state law is substantive and should be applied

COURTS HAVE DETERMINED THESE ISSUES ARE SUBSTANTIVE (I.E., STATE LAW WILL ALWAYS GOVERN):
(1) Elements of a claim or defense
(2) Statute of limitations (“SOL”)
(3) Conflicts/choice of law rules
(4) Rules for tolling the SOL

Question 17

VENUE

Answer 17

VENUE INVOLVES THE DETERMINATION OF THE JUDICIAL DISTRICT(S) IN WHICH P MAY BRING SUIT
> Distinguish from SMJ, which involves whether the case can get to federal court, venue concerns which federal court is proper

GENERAL RULES FOR BENUE IN CIVIL ACTIONS - for most civil actions in federal court, venue is proper:
(a) In any district where any D resides (if all Ds reside in the same state in which the district is located);
(b) In any district in which a substantial part of the claim arose or in which a substantial part of property that is subject to the action is situated; or
(c) if no district in the U.S. can satisfy (a) or 9b) above, the venue is proper in any district in which and D is subject to PJ

RESIDENCY FOR VENUE PURPOSES
> People - residency determined by domicile
> Busines - resident of all districts in which it was subject to PJ when the action commenced ( much broader standard than PPB)
> Unincorporated associations - residency is determined by the location of the association itself, not individual members.

Question 18

VENUE TRANSFER

Answer 18

A CASE MAY BE TRANSFERRED FROM ONE FEDERAL DISTRICT TO ANOTHER IN THE INTEREST OF JUSTICE IF THE TRANSFEREE DISTRICT IS ONE IN WHICH THE CASE COULD HAVE ORIGINALLY BEEN FILED
> i.e., can transfer to any distinct with the proper venue, PJ, and SMJ
> Any party may move to transfer venue

IF VENUE IN ORIGINAL DISTRICT IS PROPER - transfer is discretionary
> Court may order transfer based on convenience of parties and witnesses, and/or in the interest of justice
> Court discretion is based on:
—> Public factors - what law applies, which community should be burdened with jury service, etc.
—> Private factors - convenience (e.g., location of evidence, witnesses)

IF THE VENUE IN THE ORIGINAL DISTRICT IS IMPROPER - the court may transfer in the interest of justice or dismiss the case

CHOICE OF LAW - The transferee court applies the choice of law rules of the original court, regardless of which party sought transfer
> Exception - transferee court will apply its own laws if the original venue was improper

Question 20

FORUM NON CONVENIENS

Answer 20

IF THERE IS A FAR MORE APPROPRIATE COURT IN WHICH A CASE SHOULD BE HARD (E.G., SEPARATE JUDICIAL SYSTEM, FOREIGN COUNTRY, ETC.), THE COURT IN WHICH THE CASE WAS FILED MAY DECLINE TO EXERCISE ITS JURISDICTION

FACTORS:
> The Court evaluates based on the same public and private factors as for venue transfer, i.e., convenience, applicable law, etc.
—> Requires strong showing of public and private interests to dismiss or stay

OPTIONS FOR COURT GRANTING FORUM NON CONVENIENs:
(1) STAY THE PROCEEDING
(2) DISMISS THE CASE
—> Usually dismissed without prejudice, which allows P to sue in the more appropriate forum
—> Dismissal often occurs because the transfer to the more appropriate court is impossible (e.g., because it is in a different judicial system or country)
—> Dismissal based on forum non conveniens almost never granted if P is a resident in the present forum

Question 21

C

Question 22

COMPLAINT

Answer 22

THE INITIAL PLEADING IN ALAW SUIT, FILED BY P, WHICH BEGINS AN ACTION

REQUIREMENTS - The complaint must contain:
(1) STATEMENT OF JURISDICTION - short and plain statement of grounds upon which the court’s jurisdiction depends (i.e., why the court has jurisdiction)
(2) STATEMENT OF CLAIM - short and plain statement of P’s claim, showing entitlement to relief
—> Notice pleading standard - complaint must give enough information to allow the adverse party to be on notice and make a reasonable response
> Detailed facts are not required; allegations must only be sufficient for the court to plausibly infer that D could be liable if allegations are true
—> Exceptions - certain claims/issues must be pleaded with particularity, including:
(a) Fraud or mistake
(b) Special damages
(c) Judgments or official documents upon which the pleading party will rely
(3) DEMAND FOR JUDGMENT FOR RELIEF SOUGHT -description of relief sought (e.g., money damages, injunction, etc.)

Question 23

ANSWER

Answer 23

RESPONSE TO THE COMPLAINT, IN WHICH D STATES DEFENSE TO EACH CLAIM ASSERTED AND ADMITS OR DENIES EACH COUNT OF P’s COMPLAINT
> Governed by rule 8
> Defenses can be pleaded in the alternative
—> E.g., in breach of contract claim, D can deny a contract existed but also answer that if a contract did exist, D performed under the contract
> Timing - must be filed within 21 days of service of process, or 14 days after a ruling on a Rule 12 motion

REQUIREMENTS - The answer must:

(1) RESPOND TO ALLEGATIONS OF COMPLAINT - available responses:
(a) Admit allegations
(b) Deny allegations
—> Failure to deny can constitute an admission on any issue except damages
(c) Lack of sufficient information to admit or deny allegations

(2) RAISE AFFIRMATIVE DEFENSES - certain defenses are waived if not explicitly pleaded in answer; these include:
i. Contributory negligence
ii. Claim preclusion
iii. Statute of frauds
iv. Fraud
v. Statute of limitations
vi. self-defense

COUNTERCLAIMS - D’s claims against P may be required in D’s answer (compulsory) or may be brought separately (permissive)

Question 24

RULE 12 MOTIONS

Answer 24

D MAY ATTACK THE VALIDITY OF P’s COMPLAINT THROUGH A RULE 12 MOTION

RULE 12(b) DEFENSES:
(1) Lack of SMJ
(2) Lack of PJ*
(3) Improper venue *
(4) Insufficiency of process*
(5) Insufficiency of service of process*
(6) Failure to state a claim
(7) Failure to join in a necessary party
> *Waiver - these are waived if not included in D’s rule 12 notion, provided they were available
> Rule 12(b) defenses may be raised by motion or in answer
> Must be filed before an answer if responsive pleading allowed

MOTION FOR A MORE DEFINITIVE STATEMENT (Rule 12(e)) - if complaint is so vague or ambiguous that D cannot reasonably prepare a response, D may move for a more definitive statement from P

MOTION TO STRIKE (RULE 12(f)) - D may move to strike from the complaint (or the court may strike on its own) any redundant, immaterial, impertinent, or scandalous material

MOTION FOR JUDGMENT ON THE PLEADINGS (RULE 12(c)) - similar to Rule 12(b) (6) motion for failure to state a claim; difference depends on timing

Question 25

COUNTERCLAIM

Answer 25

AN OFFENSIVE CLAIM RAISED BY D AGAINST P, WHICH MAY BE PLEADED IN D’s ANWER TO THE COMPLAINT; GOVERNED BY RULE 13
> TWO TYPES:
(1) Compulsory - must be asserted in pending case; will be waived otherwise
(2) Permissive - not waived if D fails to assert it
>JURISDICTIONAL REQUIREMENT - D must ensure court has jurisdiction to hear any counterclaim
—> *Note - compulsory counterclaims will almost always have supplemental jurisdiction

COMPULSORY COUNTERCLAIM (RULE 13(a))
> Claim by D against P that arises from the same transaction or occurrence as of of P’s claims
> Must be filed in d’s answer or it will be waived (i.e., D cannot assert it in a separate action at a later time)

PERMISSIVE COUNTERCLAIM (RULE13(b))
> Claim by d against P that does not arise from the same transaction or occurrence as any of P’s claims
> May be filed with D’s answer to P’s complaint, or can be asserted in a separate action filed by D

Question 26

CROSS-CLAIMS

Answer 26

OFFENSIVE CLAIMS ASSERTED BY A CO-PARTY; GOVERNED BY RULE 13
>E.g., P sues D! and D@; D1 assets a cross-claim against d2

REQUIREMENTS -same transaction or occurrence
> Cross-claims must arise from the same transaction or occurrence as the underlying action
—> Never compulsory, unlike counterclaims stemming from the same transaction or occurrence

JURISDICTION- must have an independent basis for SMJ
> Cross-claims will almost always satisfy supplemental jurisdiction requirements because they must arise from the same transaction or occurrence

Question 27

AMENDING PLEADINGS

Answer 27

UNDER RULE 15, PARTIES MAY AMEND THEIR PLEADINGS ONCE AS A MATTER OF COURSE
> Additional amendments may be granted with the consent of other parties or court permission (amendment without right)

AMENDMENT AS A MATTER OF COURSE -may occur either:
(a) Withing 21 days after service, or
(b) If the pleading is one in which requires a response, within 21 days of service of the responsive pleadings or pre-answer motion (e.g., a Rule 12 motion)
—> E.g., if D answer’s P’s complaint, P has 21 days from service of the answer to amend complaint
> Party has 14 days or time remaining on initial 21-day deadline (whichever is longer) to respond to an amended pleading

AMENDMENT WITHOUT RIGHT - party may only amend with either:
(a) Written consent of the adverse party, or
(b) Leave of court (i.e., permission of court)
—> Leave of courts must be sought through a motion
—> Leave will be granted freely when jsutie requires (lenient standard); court look to:
i. Delay that will be caused
ii. Potential prejudice
iii. Futility of amendment

Question 28

AMENDING PLEADINGS: RELATION BACK

Answer 28

THE RELATION BACK DOCTRINE APPLE WHEN A PARTY AMENDS A PLEADING TO A ADD A NEW CLAIM OR D AFTER THAE STATUTE OF LIMITATIONS HAS RUN; GOVERNED BY RULE 15(c)
> If allowed to relate back, amended pleading will be treated as if it was filed when the original pleading was filed

REQUIREMENTS:
> NEW CLAIM -amendment will relate back if the new claim concerns the same conduct, transaction, or occurrence as the original pleading
NEW OR SUBSTITUTED D - amendment will relate back if:
(1) Amendment concerns the same conduct, transaction, or occurrence as original pleading, and
(2) Within 120 days of the filing of the amendment:
i. New D knew of or received notice of an action, and
ii. New d knew of or should have known that, but for a mistake, she would have been named originally
—> Applies when P sued the wrong D first, but the right D was aware of the mistake

Question 29

RULE 11 CERTIFICATION & SANCTIONS

Answer 29

RULE 11 REQUIRES THE ATTORNEY OR PRO SE PARTY TO SIGN ALL PLEADINGS, WRITTEN MOTIONS, AND OTHER PAPERS

CERTIFICATION -signature acts as a certification that, to the best of the signor’s knowledge, after all reasonable inquiries taken:
(1) Filing is not for an improper purpose (e.g., harassment, delay)
(2) Legal contentions are warranted by law
—> Arguments made for modification of an existing law or establishment of a new law must be non-frivolous
(3) Factual contentions and denials have or are likely to have evidentiary support

SANCTIONS - The court may issue sanctions for violations, either on the court’s own initiative or an opponent party’s motion
> Safe harbor - Rule 11 motion for sanctions may not be filed until 21 days following service of the offending document
—> Party may withdraw the offending document or remedy the problem
—> If not remedied or withdrawn, a motion can be filed
> Hearing required - court must give the attorney or party a chance to be heard before imposing sanctions

Question 30

VOLUNTARY DISMISSAL

Answer 30

UNDER RULE 41, P MAY VOLUNTARILY DISMISS HER CASE, EITHER WITH OR WITHOUT COURT APPROVAL (I.E., LEAVE OF COURT)

DISMISSAL WITHOUT LEAVE OF COURT - allowed before D serves an answer or motion for summary judgment (“MSJ”)
> P voluntarily dismisses by filing a written notice of dismissal or stipulation signed by all parties who have appeared
> Dismissal is without prejudice, i.e., P can bring claims again
—> Exception - dismissal is with prejudice if p previously filed and dismissed the same claims
—> Dismissal can also be without prejudice if it is a condition of the parties’ settlement agreement

DISMISSAL WITH LEAVE OF COURT - required if there has been an answer, motion, or prior dismissal
> The court has the discretion to grant dismissal on terms and conditions it deems proper
> Dismissal is without prejudice unless the court states otherwise
> Pending counterclaim - If D filed a counterclaim, P cannot voluntarily dismiss without D’s consent

Question 31

DEFAULT & DEFAULT JUDGMENT

Answer 31

UNDER RULE 55, DEFAULT JUDGMENT AGAINST D MAY BE ENTERED WHEN D FAILS TO PLEAD OR OTHERWISE DEFEND A PROPERLY SERVED COMPLAINT

PROCEDURE - If P files a motion for default judgment against D
> Clerk enters default on docket if P shows D failed to respond within 21 days of being served (60 days if service is waived)
—> Default does not automatically entitle P to recovery; clerk or judge must enter a judgment of default
>Default judgment by court clerk - may be entered if:
(1) D has not responded at all
(2) Claim is for money damages
(3) P gives an affidavit of the sum owed, and
( 4) D is not a minor or incompetent

RECOVERY - limited to the amount demanded in the complaint

SETTING ASIDE DEFAULT JUDGMENT - Court may set aside default judgment for good cause shown within one year
> Usually satisfied if D can show some excusable neglect, mistake, or fraud

Question 32

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM & MOTION FOR JUDGMENT ON THE PLEADINGS

Answer 32

UNDER RULE 12, D MAY MOVE TO DISMISS OR MOVE FOR JUDGMENT ON THE PLEADINGS DUE TO P’s FAILURE TO BRING A PLAUSIBLE CLAIM
> I.e., D arguing that even assuming all allegations in complaint or pleadings are true, P cannot win
> If granted, P will usually be given leave to amend the complaint

FAILURE TO STATE A CLAIM VS. MOTION FOR JUDGMENT ON THE PLEADINGS
> Timing Of Filing:
—> Before D files answer = Rule 12(b)(6) motion to dismiss
—> After D files answer = Rule 12(c) motion for judgment on the pleadings
> Material reviewed by court:
—> Rule 12(b)(6) motion - court reviews sufficiency of P’s complaint alone
—> Rule 12(c) motion - court review all pleadings

Question 33

SUMMARY JUDGMENT

Answer 33

UNDER RULE 56, EITHER PARTY MAY FILE A MOTION FOR SUMMARY JUDGMENT (“MSJ”) ASKING COURT TO ENTER JUDGMENT
> Must be filed no later than 30 days after the close of discovery

BURDEN FOR MOVING PARTY - Must show:
(1) There is **no genuine issue of material fact **
(2) Moving party is entitled to judgment as a matter of law
> i.e., no reasonable person could find for the nonmoving party
> Motion is based on pleadings and evidence submitted

BURDEN-SHIFTING - If the party moves for summary judgment, the burden shifts to the nonmoving party to show that a triable issue exists

EVIDENCE - examined in the light most favorable to the nonmoving party
> Court can look at the whole record of admissible evidence (e.g., affidavits, verified pleadings, discovery materials, etc)
—> Evidence must be admissible to be considered
—> * Note this distinguishes MSJ Rule 12(b) or 12(c) motions, in which the court may only look at complaints or all pleadings

PARTIAL SUMMARY JUDGMENT - The court can grant summary judgment on only certain claims

Question 34

ALTERNATIVE DISPUTES RESOLUTION & SETTLEMENTS

Answer 34

FEDERAL COURTS MUST HAVE AN ADR PROGRAM AND THE FRCP ACTIVELY ENCOURAGES SETTLEMENT THROUGH VARIOUS MEANS, INCLUDING MANDATORY SETTLEMENT CONFERENCES

ADR - Generally refers to any means of settling disputes outside the courtroom, including arbitration and mediation

MANDATORY SETTLEMENT CONFERENCE - A court-appointed advisor meets with parties privately and offers an evaluation of the weaknesses of their respective cases

SETTLEMENTS OFFERS - Under Rule 68, parties may make formal settlement offers at least 14 days before the start of the trial
> Settlement for less than offer - if the offeree obtains judgment less favorably than the unaccepted offer, the offeree must pay costs incurred by the offering party after the offer was made.