Civil Procedure

Question 1

T/F: Choice of law rules are considered substantive for Erie purposes

Answer 1

True

Question 2

PJ Constitutional Analysis

Answer 2

Does the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice?

Question 3

General PJ

Answer 3

Defendant must be at home in the forum or must have registered to do business in the state and have appointed an agent for service of process there

Question 4

Tag jurisidction

Answer 4

Where forum has general PJ over a Defendant who was voluntarily present + served with process in the forum

Question 5

Corporation is “at home”

Answer 5

(1) in the state in which it is incorporated; (2) in the state in which it has its PPB

Question 6

Specific PJ

Answer 6

When Plaintiff’s claim arises from or relates to Defendant’s contact with the forum

Question 7

Fairness factors

Answer 7

(for specific PJ only) (1) burden on the defendant and witnesses; (2) forum’s interest in providing courtroom for its citizens who are allegedly being harmed by out-of-state defendants; (3) plaintiff’s interest in suing in forum where she was injured/at home

Question 8

Contacts (PJ)

Answer 8

Defendant must have: (1) purposefully availed itself of forum state’s laws; and (2) knew or reasonably should have anticipated that its activities in the forum made it foreseeable that it may be “haled into court” there

Question 9

Who can serve process?

Answer 9

Any person who is at least 18 years old and not a party to the action

Question 10

When must process be served?

Answer 10

if serving D within U.S., service must take place within 90 days of the filing of the complaint

Question 11

Substituted service

Answer 11

can be done only (1) at defendant’s usual place of abode; (2) with someone of suitable age and discretion; (3) who resides there

Question 12

Diversity requirements

Answer 12

Case is between (a) citizens of different U.S. states (diversity) or (b) a citizen of a U.S. state and citizen of a foreign country (alienage) + amount in controversy exceed $75K

Question 13

Complete Diversity Rule

Answer 13

diversity doesn’t exist if any plaintiff is a citizen of the same state as any defendant; diversity determined when the case is filed

Question 14

Requirements to establish a new domicile

Answer 14

(1) physical presence in the new domicile + (2) intent to make that place your home for the indefinite future

Question 15

FQ Requirements

Answer 15

citizenship of parties isn’t relevant; amount in controversy isn’t relevant; plaintiff’s claim itself must “arise under” federal law (i.e., is plaintiff enforcing a federal right?)

Question 16

Timing of Removal

Answer 16

Defendant must remove no later than 30 days after service of the first paper that shows the case is removable

Question 17

Limitations on Removal

Answer 17

Plaintiff can never ever remove; If removing based on diversity: shouldn’t be removed if any defendant is a citizen of the forum state and case should not be removed more than one year after the case was filed in state court

Question 18

Timing of Remand

Answer 18

Plaintiff must move to remand no later than 30 days after the filing of the notice of removal (if remanding for a reason other than lack of SMJ - no time limit on that)

Question 19

Issues that are clearly substantive for Erie purposes

Answer 19

Conflict (or choice) of law rules; elements of a claim or defense; statutes of limitation; rules for tolling statutes of limitations; and standard for granting a new trial because the jury’s damages award was excessive/inadequate

Question 20

Waivable 12(b) defenses

Answer 20

Lack of PJ; improper venue; improper process; and improper service of process

Question 21

Joinder: claims by multiple plaintiffs or against multiple defendants must

Answer 21

(1) arise from the same T/O and (2) raise at least one common question of law or fact

Question 22

Tests for if a nonparty is “necessary”/”required”

Answer 22

without the absentee, the court cannot accord complete relief among the existing parties; or the absentee’s interest may be harmed if she is not joined; or the absentee claims an interest that subject a party (usually D) to a risk of multiple obligations

Question 23

Compulsory Counterclaim

Answer 23

one that arises from the same T/O as the plaintiff’s claim

Question 24

Crossclaim

Answer 24

one asserted against a coparty; must arise from the same T/O as underlying action but is not compulsory

Question 25

Class Action Requirements

Answer 25

Numerosity; Commonality; Typicality; Representative Adequate

Question 26

Type 1 Class Action

Answer 26

class treatment is necessary to avoid harm (prejudice) either to class members or to the nonclass party [rare]

Question 27

Type 2 Class Action

Answer 27

seeks an injunction or a declaratory judgment because the defendant treated the class members alike

Question 28

Type 3 Class Action

Answer 28

(1) common questions must predominate over individual questions; and (2) the class action is a superior method to handle the dispute

Question 29

CAFA grants SMJ if:

Answer 29

there are at least 100 class members; any class member (not just the representative) is of diverse citizenship from any defendant; and the aggregated claims of the class exceed $5 million

Question 30

Expert witness who may be used at trial

Answer 30

party must disclose via written report prepared by EW: opinions the EW will express, bases for the opinions, facts used to form the opinions, EW’s qualifications, and how much the EW is being paid

Question 31

MSJ Standard

Answer 31

no genuine dispute on a material fact + entitled to judgment as a matter of law

Question 32

Jury Demand must be made

Answer 32

no later than 14 days after service of the last pleading addressing a jury triable issue [usually the answer]

Question 33

Claim Preclusion (Res Judicate)

Answer 33

(1) Case 1 and Case 2 brought by the same claimant against the same defendant; (2) Case ended in a valid, final judgment on the merits; and (3) Case 1 and Case 2 assert the same [i.e., any right to relief arising from a transaction or occurrence]

Question 34

Collateral Order Doctrine

Answer 34

a claim or issue may be immediately appealable if it is too important to wait until the final judgment; 3 requirements: (i) the lower court must have conclusively determined the disputed question, (ii) the issue must be separate from and collateral to the merits of the main issue of the case; and (iii) the issue must be effectively unreviewable on an appeal from the final judgment

Question 35

T/F: Generally speaking, when dealing with the preclusive effect of a judgment, the recognizing court should not give a judgment any greater effect than the rendering state would

Answer 35

True

Question 36

Two Dismissal Rule

Answer 36

A dismissal by notice is without prejudice unless the plaintiff has previously dismissed any federal or state court action on the same claim, in which case the dismissal by notice is with prejudice

Question 37

Preliminary injunction may be issued if applicant shows:

Answer 37

(i) she is likely to suffer irreparable harm if the injunction is not issued; (ii) she is likely to win on the merits of the underlying case; (iii) the balance of hardship favors her; and (iv) the injunction is in the public interest

Question 38

In a case involving general verdict with written questions, if the answers are consistent with each other but inconsistent with the verdict:

Answer 38

the court may enter an appropriate judgment consistent with the answers (or tell the jury to reconsider/order a new trial)

Question 39

In a case involving general verdict with written questions, if the answers are inconsistent with each other and one or more is inconsistent with the general verdict:

Answer 39

no judgment may be entered

Question 40

RJMOL must be made within

Answer 40

28 days after entry of judgment and based upon the same grounds as the JMOL motion

Question 41

When the district judge decides questions of law, the court of appeals reviews those decisions

Answer 41

de novo, giving no deference to the district judge

Question 42

When the district judge district judge determines questions of fact in a non-jury trial, the court of appeals will affirm unless the findings are

Answer 42

clearly erroneous

Question 43

In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless

Answer 43

reasonable people could not have made that finding

Question 44

On discretionary matters that the judge decides, the court of appeals will affirm unless the district judge

Answer 44

abuser her discretion [deferential standard]