Civil Procedure

Question 1

Venue: Transfer to More Appropriate Forum

Answer 1

The general federal change of venue statute permits a district court to transfer any civil action to any other district or division where the case may have been brought. Federal statute governs venue transfer and the court can transfer venue to another district even if venue was improper in the original (transferor) court.

Question 2

Rule 9 Pleading Fraud

Answer 2

In alleging fraud, a party must state with particularity the circumstances constituting fraud. (The Conley standard of “no set of facts” or “failure to plead special matters” has been abandoned and is no longer the standard)

Question 3

Scope of discovery

Answer 3

Parties may obtain discovery regarding any non privileged matter that is RELEVANT to any party’s claim or defense, and proportional to the needs of the case.

Question 4

Granting a new trial based on excessive damages award

Answer 4

The trial judge can order a new trial, or issue a conditional new trial order (I.ei. “remittitur” to avoid waisting judicial resources) if she believes that the jury’s compensatory damages award is so excessive as to shock the conscience.

Question 5

What is the place of compliance for a subpoena?

Answer 5

If a person to be deposed is not a party or a party’s officer, that person can only be required to attend a deposition that is within 100 miles of where the person resides, is employed, or regularly transacts business in person.

Question 6

Aggregation of claims

Answer 6

A plaintiff can aggregate all their claims against a single defendant, however, a plaintiff may NOT aggregate all her claims against MULTIPLE defendants.

Question 7

Final orders reviewable on appeal

Answer 7

Only final orders are reviewable on appeal.

A final order on the merits disposes of the whole case by rendering judgment as to ALL the PARTIES and ALL CAUSES of ACTION.

If multiple claims or parties are involved in the action, the court can enter a “final judgment” as to fewer than all of the claims or parties ONLY on an express determination that there is NO JUST REASON FOR DELAY.

If the court makes no express determination, a judgment as to fewer than all claims or parties is NOT FINAL and appealable.

Question 8

Issues not raised at trial

Answer 8

issues not raised at trial are generally not reviewable on appeal.

Question 9

Amount in controversy

Answer 9

The amount in controversy is determined not by the amount the plaintiff could recover but rather by the damages specifically sought in the complaint, and a claim for attorney fees is included in this amount.

(remember, the amount in controversy must be GREATER THAN $75k, not just $75k)

Question 10

General PJ

Answer 10

General PJ over a defendant can be established when it is based on:

1. Residency of defendant
2. Consent (express or implied due to failure to properly object
3. Presence (continuous and systematic contacts/substantial business contacts with the state, present in state when served)

Question 11

Venue: Corporations

Answer 11

For corporations in a state with multiple federal judicial district, residence in any district in which their contacts would be sufficient to subject it to personal jurisdiction if that district were a separate state.

(hypo: lawsuit brought against two California corporations in federal district in Northern District of Cali. One corporation was based in Eastern District of Cali, the other was based in Central district of cali. Neither corp had contacts with Northern District o Cali)

Question 12

Time required for serving an answer to a pleading

Answer 12

Any answer to a pleading that asserts a claim for relief must be served within 21 days of being served with that pleading. However, if a party moves to dismiss a claim against it before serving its responsive pleading and the motion is denied, the party will then have 14 days from receipt of notice of the court’s action to serve its responsive pleading.

Question 13

Administration of jury instructions: Right to object

Answer 13

The court must inform the parties of its proposed jury instructions BEFORE giving such instructions to the jury to give parties an opportunity to object.

If not, this error can be raised on appeal and reviewed in plain error b/c it affects a parties substantial rights

Question 14

Voluntary dismissal

Answer 14

a voluntary dismissal is without prejudice unless its notice or stipulation provides otherwise.

Question 15

Rule 12b6 failure to state a claim dismissal with prejudice

Answer 15

A dismissal based on failure to state a claim is dismissed with prejudice and operates as an adjudication on the merits.

Question 16

When may a party move for summary judgment?

Answer 16

A party may move for summary judgment at any time until 30 days after the close of all discovery.

Question 17

Appellate court standard of review

Answer 17

While a federal appellate court will review a federal district court’s findings of LAW DE NOVO, it will disturb the lower court’s findings of FACT only if they are CLEARLY ERRONEOUS.

Question 18

Removal

Answer 18

Only a defendant may remove a case to federal court, and must do so within 30 days. A defendant in a diversity case has one year after the action’s commencement to remove to federal court.

Removal applies to moving a lawsuit from STATE court to FEDERAL court not the other way around.

A defendant may NOT remove a case if he is sued in his home state and the only basis for removal is diversity.

Question 19

Consenting to venue

Answer 19

A party can consent to venue in a contract and the court will honor the party’s consent to venue.

Question 20

Peremptory Challenges (3 peremptory strikes)

Answer 20

A peremptory challenge results in the exclusion of a potential juror without the need for any reason or explanation - UNLESS the opposing party presents a prima facie argument that this challenge was used to discriminate on the basis of race, ethnicity, or sex.

Question 21

Impleader (Def joining Def): Supplemental JDX

Answer 21

Supplemental jdx can be used for third party impleader claims if the claims arise out of a common nucleus of operative fact since the third party defendant is not seen as a plaintiff for the purposes of diversity jdx.

Question 22

100 Mile Bulge

Answer 22

Service within 100 miles of the court house where an action is pending is effective to establish PJ ONLY over defendants joined under Rule 14 or 19, NOT for service on original defendants.