Civil Procedure

Question 1

Personal jurisdiction can be ___ or ___.

Answer 1

General (obtained by consent, presence, or domicile); specific.

Question 2

If the MEE fact pattern discusses a case that takes place in 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 MEE issue is specific 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.

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 jurisdictions would not offend traditional notions of fair play and substantial justice.

Minimum contacts are established by personal availment such that being hailed into the state’s court is foreseeable.

Question 4

Subject matter jurisdiction is

Answer 4

The power of a court to hear a certain type of case

Question 5

Federal courts are courts of ___ jurisdiction.

Answer 5

Limited—that is, they can only hear certain types of cases.

Question 6

Three categories of federal subject-matter jurisdiction:

Answer 6

Federal question
Diversity
Supplemental

Question 7

Federal question jurisdiction

Answer 7

A federal question must appear on the face of plaintiff’s well-pleaded complaint.

It cannot appear in the answer, nor can plaintiff merely anticipate a federal defense in its complaint.

Question 8

Diversity jurisdiction

Answer 8

Requires (1) complete diversity of citizenship between the plaintiffs and defendants and (2) the amount in controversy must be over $75,000.

Note: complete diversity is not required for class actions under CAFA—minimal diversity suffices.

Question 9

A person is domiciled:

Answer 9

Where it is her permanent home and where she intends to remain indefinitely.

Question 10

A corporation is domiciled:

Answer 10

Where it is incorporated (may be more than one state) and the one state in which it has its principal place of business—nerve center.

Question 11

Supplemental jurisdiction

Answer 11

Same nucleus of operative facts. There must first be one claim with SMJ.

A plaintiff cannot use supplemental jurisdiction to add a claim against a non diverse party if the sole basis for SMJ is diversity.

Question 12

Removal

Answer 12

Defendants (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.

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

Question 13

Venue is proper in a district where

Answer 13

(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.

A corporate defendant resides in any judicial district in which it is subject to PJ at the time the action is commenced.

Question 14

Venue transfer

Answer 14

The federal court has authority to transfer a case to another federal district for the convenience of the parties and in the interest of justice. The new forum must have SMJ and PJ. 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.

Question 15

Motion for summary judgment—rule 56

Answer 15

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 moving is entitled to judgment as a matter of law.

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 16

Burdens of proof for motion for summary judgment

Answer 16

The moving party must produce evidence to show there is no genuine issue of material fact.

The burden then shifts to the non-moving party, which must then produce evidence to show that there is a genuine dispute of material fact.

The evidence is considered in the light most favorable to the non moving party.

Question 17

TRO

Answer 17

A TRO can be issued without notice to the adverse party.

To secure a TRO without notice, the plaintiff needs to show a risk of immediate and irreparable injury.

The TRO only lasts 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 last until the court decides whether to grant a preliminary injunction.

Question 18

Preliminary injunctions

Answer 18

Equitable relief with the objective of preserving the status quo. If 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.

Four factors to consider (HELP): (1) Harm—significance of the threat of irreparable harm to the plaintiff if the judgment is not granted; (2) Evaluation of injuries—balance between this harm and the injury that granting the injunction would inflict on the defendant; (3) Likelihood of prevailing on the merits for plaintiff; and (4) Public interest.

Question 19

Work product

Answer 19

Any material prepared in anticipation of litigation.

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.

Question 20

___ are generally appealable and ___ are generally not appealable.

Answer 20

Final judgments; non-final judgments

Exceptions: 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; interlocutors orders by leave; orders constituting a final judgment on collateral matters.

Question 21

Issue preclusion

Answer 21

Issues that were actually litigated and decided and essential to the judgment in a previous case cannot be litigated again.

Question 22

Claim preclusion

Answer 22

A claim that has been litigated to a final judgment on the merits cannot be re litigated by the parties (or their privies).

Question 23

An action filed in state court may be removed to:

Answer 23

The federal court embracing the state court

Question 24

To remove a case from state to federal court,

Answer 24

The defendant must file a notice of removal with the federal district court, give written notice of that filing to all adverse parties, and file a copy of the notice of removal with the state court.

Question 25

Minimum contacts analysis for PJ:

Answer 25

1. Did defendant purposefully avail himself of the forum such that he could reasonably foresee being hailed into court there?
2. Would exercise of PJ offend traditional notions of fair play and substantial justice?

Question 26

Challenges to personal jurisdiction:

Answer 26

Must be done by motion or by answer to the complaint—it must be the first pleading and be asserted in a timely manner.

Question 27

Is an appearance in the action a waiver of the right to object to personal jurisdiction?

Answer 27

No

Question 28

The plaintiff has ___ days after ____ to effect service of process to the defendant.

Answer 28

90; filing his complaint

Question 29

Methods of service of process on an individual

Answer 29

1. Personal service
2. At the person’s usual abode with competent who lives there
3. Service on an authorized agent
4. Other appropriate state methods of service

Question 30

Service of process on a corporation

Answer 30

May be served by serving an officer, a managing or general agent, or an authorized agent of the corporation

Also other appropriate state methods of service

Question 31

Waiver of service of process

Answer 31

Plaintiff may request defendant to waive service by mailing him a request to do so.

If defendant does not waive service, he will become liable for costs of service unless he has good cause.

Question 32

When does a motion for lack of SMJ need to be raised?

Answer 32

It can be raised at any time, even on appeal.

Question 33

When does a motion for lack of PJ need to be raised?

Answer 33

It is waived if not raised by motion or answer, whichever is first.

Question 34

When does a motion for improper venue need to be raised?

Answer 34

It is waived if not raised by motion or answer, whichever is first.

Question 35

When does motion for insufficient process or insufficient service of process need to be waived?

Answer 35

It is waived if not raised by motion or answer, whichever is first.

Question 36

When does a motion for failure to state a claim upon which relief can be granted need to be raised?

Answer 36

It may be raised at any time before trial or at trial.

Question 37

When does a motion for failure to join an indispensable party need to be raised?

Answer 37

It may be raised at any time before trial or at trial.

Question 38

Three general grounds for establishing proper venue

Answer 38

1. Defendant’s residence;
2. Location of the events or the property;
3. Anywhere any defendant is subject to personal jurisdiction, if there is no other district where venue is proper.

Question 39

Transfer venue when venue was proper

Answer 39

Court may decide to do this for the convenience of the parties or in the interest of justice.

Can transfer to any venue where it could have originally been filed.

Question 40

If original venue was improper,

Answer 40

A court may dismiss or, in the interest of justice, transfer to a proper venue.

Question 41

Erie Doctrine

Answer 41

When it is sitting in diversity, the federal court should apply the substantive law of the state in which it sits and federal procedural laws.

Question 42

TRO requirements

Answer 42

1. Risk of irreparable harm;
2. Harm outweighs harm to defendant;
3. Likelihood of success on the merits; and
4. Public interest.

If ex parte: show that they tried to notify defendant.

Question 43

An appeal may be taken by filing a notice of appeal with the ___ within ___ days from the entry of the judgment.

Answer 43

District court; 30

Question 44

Is an order for a new trial considered a final judgment?

Answer 44

No

Question 45

Motion for a judgment as a matter of law

Answer 45

(Aka directed verdict)

A judge may enter a judgment as a matter of law against a party on any issue whenever there are sufficient facts to resolve the issue and the party has been fully heard on the issue. The judge may enter judgment as a matter of law against a party on that claim or defense if the issue is dispositive. The judgment must be supported by findings of fact and conclusions of law.

Question 46

An entry of default may be set aside for:

Answer 46

Good cause shown.

Question 47

If a party against whom relief is sought has failed to plead or defend…

Answer 47

The clerk of the court must enter a default of that party.

A default means that there has been no answer within the required time period.

Question 48

Even after a default has been entered, the damages may still be determined by…

Answer 48

A default judgment after a hearing on damages.

Question 49

If the defendant has appeared buys not answered, he must be notified at least ___ days before the hearing for default judgment.

Answer 49

7

Question 50

To have personal jurisdiction over parties in a federal lawsuit, two distinct requirements must be met:

Answer 50

(1) the court must have the power to act on a given person so as to subject him to personal liability (substantive due process); and
(2) the court must have given the defendant adequate notice of the action against him and an opportunity to be heard (procedural due process).

Question 51

When may parties submit proposed jury instructions?

Answer 51

At the close of evidence or sooner if allowed by the court.

Question 52

What must the court do regarding jury instructions?

Answer 52

Inform the parties of its proposed instructions and give the parties a chance to object before instructing the jury.

NOTE: A party must object to an instruction at this time to preserve it for appeal.

Question 53

Does a dismissal with prejudice operate as a judgment on the merits?

Answer 53

Yes

Question 54

The second court should apply the claim preclusion rules of ____.

Answer 54

The original jurisdiction.

Question 55

What may a court strike from a pleading?

Answer 55

An insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

Question 56

How can a court strike something from a pleading?

Answer 56

On its own or via motion made by a party.

Question 57

When does a party’s motion to strike need to be made?

Answer 57

Either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

Question 58

When may a court grant an appeal when there is a final judgment on one claim but other claims in the same suit remain?

Answer 58

(Partial judgment rule).

Only if the court determines that there is no just reason for delay.

Question 59

Only ___ may be appealed to the appellate courts.

Answer 59

Final orders.

Certain involuntary dismissals, such as those based on lack of jurisdiction, improper venue, or failure to join an indispensable party do NOT operate as an adjudication on the merits—not immediately appealable.

Question 60

When does a party need to file a demand for a jury trial?

Answer 60

Within 14 days after the service of the last pleading directed to that issue.

In that demand, the party may specify which issues it wants a jury for—if they don’t, it is considered to have demanded a jury trial on all the issues so triable.

Question 61

Two ways a third party may be granted intervention into a case:

Answer 61

By way of right or permissively

Question 62

When may intervention by a third party be granted permissively?

Answer 62

When the applicant’s claim has a common question of law or fact as the main action, and the claim does not destroy complete diversity.

Question 63

When may a third party be allowed to intervene as a right?

Answer 63

If the applicant has an interest in the subject matter of the action and the interest would be impaired in the applicant’s absence.

Question 64

What is an indispensable party

Answer 64

A party whom, if absent,t he court cannot grant complete relief to the other parties, or one who has such an interest in the subject matter of the suit that his absence will impair his ability to o protect that interest.

If the absentee can be properly joined, he must be.

Question 65

To preserve an error for appellate review, a challenge to the sufficiency of the evidence should be made as a ___ before ___. Then…

Answer 65

Motion for judgment as a matter of law; before the case is submitted to the jury.

The motion must then be made again, as a renewed motion for judgment as a matter of law, after the verdict.

Question 66

A notice of dismissal operates as an adjudication on the merits when:

Answer 66

Filed by a plaintiff who was once dismissed in any federal court in an action based on or including the same claim.

Once the case has been voluntarily dismissed, if it is brought to court again, a dismissal in the second case will mean the case can never again be brought back to court.

Question 67

What standards do appellate courts apply when reviewing the fact-finding of a judge in a bench trial?

Answer 67

A “clearly erroneous” standard. Federal courts must not set aside findings of fact made from the bench unless those findings were clearly erroneous.

Question 68

If the issue is a pure question of law, the appeals court typically applies the ___ standard of review.

Answer 68

De novo—no deference will be given to the trial court’s ruling, and the appellate court will decide the issue from scratch.

Question 69

A federal appeals court will generally overturn a jury verdict because of what it perceives as a fact-finding error if

Answer 69

Only if there is a complete absence of proof on some material issue—very reluctant to reverse a jury’s findings.

Question 70

A renewed JMOL is limited to:

Answer 70

The grounds raised in the initial JMOL.

Question 71

A party must make a renewed JMOL within ____ of ___.

Answer 71

28 days of the judgment.

Question 72

To grant a motion for JMOL or a renewed motion for JMOL, the court must find that

Answer 72

A reasonable jury would not have a legally sufficient basis to find for the party on the issue.

Court must view the evidence in a light most favorable to the non moving party and without considering the credibility of the witnesses.

Question 73

Generally, a court may grant a motion for a new trial because of…

Answer 73

Some serious error that occurred during the trial (error in admission of evidence/instructing the jury).

Also can grant for juror bias and non-disclosure of information.