Civil Procedure

Question 1

Civil Procedure 2 main topics

Answer 1

(1) Jurisdiction, and (2) venue

Jurisdiction: court’s power over case and parties

Venue: appropriate geographic location for suit

Question 2

2 main types of jurisdiction

Answer 2

(1) subject matter jurisdiction, (2) personal jurisdiction

Question 3

subject matter jurisdiction definition

Answer 3

power to hear type of case

Question 4

3 types of subject matter jurisdiction (SMJ)

Answer 4

(a) federal question, (b) diversity, or (c) supplemental

Question 5

SMJ: federal question jurisdiction

Answer 5

claim arises under federal law

(ancillary: “well-pleaded complaint” rule”: federal question must arise on face of complaint)

Question 6

SMJ: Diversity jurisdiction

Answer 6

(1) no plaintiff citizen of same state as any defendant, and (2) amount in controversy greater than 75,000

Person’s Citizenship = (1) principle home, (2) intent to remain

Company’s Citizenship = any state where (1) incorporated, or (2) principal place of business (where activities controlled)

Amount:
- amount asserted is assumed correct unless (a) bad faith amount asserted, or (b) legal certainty P cannot recover asserted amount
- can aggregate amount against single D, but not multiple D’s, unless multiple D’S same controversy

Foreign citizen: Yes diversity if 1 foreign citizen v us citizen, BUT NOT foreign citizen v foreign citizen

Question 7

SMJ: Supplemental jurisdiction

Answer 7

Court can hear supplemental claims attached to claims court has (1) Federal Question or Diversity jurisdiction over, and (2) same case/controversy (meaning SAME OPERATIVE FACTS) (MY NOTE: very specific, not broad)

Notes:
- If D impleads a non-diverse defendant, court can exercise supplemental over that claim
- court may decline if (a) supplemental state-law issue is novel, (b) supplemental claims “substantially predominate” over non-supplemental claims

Question 8

personal jurisdiction (PJ) definition

Answer 8

power of the parties

(1) state law allows it, (2) doesn’t violate due process

• PJ over (a) state citizens, (b) consent, (c) physically served in the state, (d) long-arm statute for out of state people

Question 9

personal jurisdiction (PJ) types

Answer 9

(a) traditional (lives in state, served while in state, waives jurisdiction, consents), OR (b) state long-arm statute applies

Question 10

long-arm statutes constitutionality

Answer 10

D must have (1) “minimum contacts” with state such that PJ under long-arm statute (2) doesn’t “offend traditional notions of fair play and substantial justice”

“minimum contacts” means: D intentional interaction with state (a) within state, (b) directed at state, or (c) connections that make D effectively at home in state

“MINIMUM CONTACTS” SUB-DIVIDED INTO 2 TYPES:

(a) specific jurisdiction: case arises from or relates to defendant’s voluntary contact with state, OR

(b) general jurisdiction: defendant’s contact with state so “systematic and continuous” that D is effectively “at home” there

Question 11

long-arm statute analysis tree

Answer 11

Analysis tree:

(1) long-arm statute applies to facts of the case

(2) constitutional analysis (a) deliberate “minimum contacts” with state, (2) doesn’t offend traditional notions of fair play and substantial justice

Question 12

removal

Answer 12

DEFENDANT can remove state case to federal court if (1) fed court has (a) federal question, or (b) diversity jurisdiction,

(2) signed notice of removal in fed court,

(3) written notice to adverse parties and state court

(4) within 30 days of receiving complaint, or 30 days after receipt of summons if complaint already filed

• • EXCEPTIONS:
• D sued in home state cannot remove based on diversity jurisdiction, BUT can if based on federal question jurisdiction
• if removed improperly, P can ask fed court to remand to state court
• In cases with multiple D, removal requires consent of other D’s, even if 30 days has passed since first D was served they can still consent to removal at the request of another D

Question 13

Venue requirements

Answer 13

(a) (i) district where D resides if (ii) all D’s reside in same state,
(b) district where substantial part of events occurred, or
(c) if no other venue appropriate where D is subject to personal jurisdiction

Question 14

Change of venue: Transfer

Answer 14

Called a “Transfer”

Court may transfer if:
(a) (i) convenience of parties/witnesses, and (ii) interests of justice,
(b) enforce valid forum-selection clause

• only to another federal court, not state court
• new court must apply same law as original court

Question 15

Choice of federal/state law in federal courts

Answer 15

Federal-question jurisdiction: court just applies the federal law

But Diversity jurisdiction cases don’t arise under federal law, so apply “Erie Doctrine”: Courts must apply (1) state substantive law, and (2) federal procedural law
- Substantive = defines parties rights and obligations (ie the black letter law itself)

If no federal law or unclear if law is “substantive” or “procedural”, whatever rules serves goal of “Erie Doctrine”: (1) discourage forum shopping, and (2) avoid unfairness, (3) whether state law determines outcome of case, (4) whether state law expresses strong state interest, (5) whether federal policy expresses strong federal policy that should overcome state policy

Question 16

Joinder

Answer 16

The combination of parties or claims in a case

• can join all claims against same D, even if claims are not related
• plaintiff’s/defendant’s can be joined if (a) same underlying events, or (b) same question of law/fact

Required joinder: (1) joinder won’t defeat jurisdiction, (2) court can’t provide complete relief without them, (3) their interest might be compromised without their participation
- if can’t be joined, court can dismiss, or allow to proceed with protections for absent parties

Question 17

Counterclaim

Answer 17

Claim from defendant against plaintiff

• DOESN’T need to arise from same underlying events as Plaintiff’s claim
• BUT if it does arise from same events, its MANDATORY COUNTERCLAIM, or cause of action is waived

Question 18

Crossclaim

Answer 18

Claim from plaintiff against another plaintiff

or defendant against another defendant

Question 19

Third-party claim

Answer 19

Defendant joins third party, alleging third party is actually liable for ALL or PART-OF plaintiff’s original claim (also called impleader)

Question 20

Rule 11: Signature and sanctions

Answer 20

A party or its lawyer must sign every court filing, and signature certifies that contents of filing have a reasonable good-faith basis

Sanctions only after (1) serving motion for sanctions on D, and (2) allowing 21 days to cure

Question 21

Preliminary injunction

Answer 21

Requires: P to show (1) likely to succeed on merits, (2) plaintiff will suffer irreparable harm, (3) potential harm outweighs any harm injunction causes, (4) injunction is in public interest, (5) notice to opposing party

NOTE: Immediately appealable

Question 22

Temporary Restraining Order

Answer 22

Requires: (1) likely to succeed on merits, (2) plaintiff will suffer irreparable harm, (3) potential harm outweighs any harm injunction causes, (4) injunction is in public interest,

NOTE:
- notice requirement not required, BUT: moving party’s lawyer must certify in writing the efforts they made to provide notice
- limited to 14 or 28 days if extended, not immediately appealable

Question 23

Discovery

Answer 23

Party may discover any (1) nonprivileged information, (2) relevant to any claim/defense, (3) proportional to needs of case

NOTE:
- discovery protection order: protect party from discovery that is (a) unduly burdensome, (b) unreasonably cumulative, (c) excessively expensive, (d) harassing, or (e) embarrassing
- work-product: (1) created in anticipation of litigation, (2) NOT ordinary course of business
- BUT: can discover work product if (1) substantial need, (2) can’t obtain equivalent information without undue hardship
- Duty to preserve: party must take (1) reasonable measures to (2) preserve evidence (3) it knows or should know might be relevant to case, (4) as soon as it learns of potential lawsuit
- if expert witness testifying: (1) disclose identity, and (2) expert’s background and opinions
- if expert not-testifying: no report required, no discovery of expert allowed
- motion to compel: (1) after attempt to confer between parties, (2) if still refuse: court compel legitimate discovery requests

Question 24

Rule 12 pretrial motions

Answer 24

Motions only on pleadings

Examples:
- Motion for more definite statement (pleadings to vague)

• Motion to strike (remove things from pleadings) if (a) attacks party’s character, (b) lessens dignity of court, (c) immaterial or irrelevent
• Motion for judgement on pleadings (note: can only occur after (1) all pleadings are closed (aka submitted), and (2) early enough not to delay trial)

Question 25

Rule 12(b) motions to dismiss

Answer 25

Defensive motions to dismiss on 7 grounds:
- SMJ
- PJ
- Venue
- Process
- Service of process
- Failure to state claim on which relief can be granted
- failure to join required party

• Notes:
• brought before D answers complaint
• Can be raised as defenses in the answer
• single-motion rule: D should raise all Rule 12 dismissal motions in one motion BUT: (a) SMJ may be challenged at any time, (b) failure to state claim upon which relief can be granted AND failure to join party can be raised as late as trial

Question 26

Rule 56 Motion for Summary Judgment

Answer 26

Judgement without trial based on evidence gathered in discovery if: (1) no genuine issue of material fact, (2) moving party entitled to judgement as matter of law

Question 27

Judgement as matter of law (JMOL)

Answer 27

1: halftime JMOL motion if (1) no reasonable jury could find for plaintiff

2: JMOL after jury judgment if (1) party made the halftime JMOL motion, (2) no later than 28 days after final judgment, and (3) no reasonable jury could find for plaintiff
- can only grant on grounds raised in original JMOL

NOTE:
- court must construe in favor of non-moving party,
- court must NOT rely on its own views or witness credibility

Question 28

Motion for new trial

Answer 28

(a) prejudicial error during trial, (b) trial was unfair, or (c) jury’s verdict against “manifest weight” of the evidence

NOTE:
- court free to rely on its own view of evidence and witness credibility
- must be filed within 28 days of final judgment

Question 29

Motion for relief from judgement

Answer 29

(a) fraud, (b) opponent’s misconduct, or (c) newly discovered evidence that couldn’t have been discovered sooner

NOTE:
- must be brought within 1 year

Question 30

Default

Answer 30

If D fails to plead or defend, CLERK must enter a default, which likely leads to default judgement, but court can set aside default for “good cause”

CLERK can enter the judgment if (a) P’s claim for definite sum of money, or (b) sum can be precisely calculated

If CLERK can’t enter judgment, then COURT can enter judgment only if (1) 7 days notice to defaulting party (only if D appeared during case at some point, otherwise no notice necessary), and (2) hearing

Question 31

Dismissals

Answer 31

Voluntary: (a) unilateral: only if D hasn’t answered complaint yet, (b) agreed stipulation between P and D, or (c) motion to dismiss to the court

Involuntary: (a) P doesn’t prosecute case, (b) P doesn’t comply with civil rules, (c) P doesn’t obey court order

NOTE:
- voluntary dismissals without prejudice, but second voluntary dismissal can bar refiling
- involuntary dismissals do not allow refiling

Question 32

7th amendment

Answer 32

Right to CIVIL jury trial for LEGAL claims (money damages) if controversy exceeds $20, but NOT equitable claims (injunctions, etc.)

Note:
- statute may also confer right to jury trial
- Party seeking jury trial must still demand jury trial right within 14 days of last pleading to the issue, it isn’t automatic

Question 33

Jury composition

Answer 33

Federal jury must be at least 6, but not more than 12

Court can excuse jurors for “good cause”

Verdict must be unanimous

Question 34

Jury instructions

Answer 34

Jury instructions must be submitted in writing

Court must say what jury instructions it plans to give

If party objects, must object (1) on the record, (2) at the first opportunity, to preserve appeal rights,

BUT: no objection necessary if (a) court has clearly denied a requested instruction on the record, or (b) court’s handling of instruction constitutes (i) plain error that affects a (ii) parties substantial rights

Question 35

Appeals

Answer 35

Only “final judgments” are appealable, “Final judgments” are those that end the case
- BUT: if court enters (1) final judgment on one D’s case when there are several D’s but leaves other cases open, (2) and states no just reason for delay, then party can appeal that final judgment for that D alone immediately while rest of case proceeds

• NOTE EXCEPTIONS:
  (i) orders granting/denying injunctions,

(ii) court certifies action for interlocutory appeal if: (1) controlling question of law, (2) substantial ground for difference of opinion, (3) immediate appeal may end litigation,

(iii) collateral order ((1) important rights too important to delay until final judgement, and (2) separate from merits

Questions of law: Reviewed de novo

JURY finding of fact: Only overturned if no reasonable jury could decide as jury did

JUDGE finding of fact: Clearly erroneous (definite and firm conviction trial court made mistake)

JUDGE discretionary ruling: abuse of discretion (manifestly wrong or unreasonable)

BUT: no reversal if “harmless error”

Question 36

Preserving right to appeal

Answer 36

Generally party must make timely objection to preserve issue for appeal

BUT: party may appeal sufficiency of evidence to support a court’s finding of fact even if party did not object to them during trial

Question 37

Claim preclusion

Answer 37

Can’t relitigate CLAIM (cause of action) if (1) same cause of action, (2) prior case ended in final judgment decided on merits, (3) prior parties identical or in privity to current parties

• if previous state judgment, fed courts must give “full faith and credit” to state judgment
• BUT: if federal court dismissal, court must apply federal law (ie fed court dismisses with prejudice, state court bound by that)

Question 38

Issue preclusion

Answer 38

Can’t relitigate ISSUE (individual issue) that was decided in previous case if (1) issue identical to prior case, (2) prior case ended in final judgment, (3) issue was litigated and decided in prior case, (4) current opposing party had full and fair opportunity to litigate the issue in prior case

CHOICE OF LAW: (1) determine choice of preclusion law (apply law of court that ISSUED the original judgement, UNLESS diversity, then state in which fed court sits), (2) does that court’s jurisdiction allow mutual/non-mutual issue preclusion, (3) then is the elements of issue preclusion itself met?
- Mutual issue preclusion = party DIRECTLY FROM case 1 asserts issue preclusion against party from case 1
- Non-mutual issue preclusion = party NOT DIRECTLY from case 1 asserts issue preclusion against party from case 1
– (note: call of question will say whether the jurisdiction allows mutual or nonmutual preclusion)
- FULL FAITH AND CREDIT = courts give full faith and credit to determinations of other courts (state or fed)
– APPLY the preclusion rule of the COURT THAT ISSUED THE JUDGMENT, UNLESS diversity federal case, then apply preclusion law of state in which court sits

Question 39

Rule 4: Service of process

Answer 39

D must be served with summons and complaint

(a) methods permitted by forum state, (b) rules in state where service is actually made, (c) other provisions

• corporations: can serve officer/agent of manufacturer

Question 40

Rule 8

Answer 40

Complaint state enough facts to show plausible entitled to relief

Question 41

Answer

Answer 41

must (1) admit/deny, (2) raise any affirmative defenses

Question 42

Rule 15

Answer 42

Allowed to amend a pleading once without permission within 21 days of service
- after one amendment need (a) court’s consent, (b) other party’s consent

“relating back” so you can amend after SOL ran:
(a) SOL allows relating back,
(b) adds claim/defense that arose from conduct underlying original pleading,
(c) (1) changes defendant, (2) same underlying conduct, (3) within time allowed for original complaint new party had received notice such that no prejudice, (4) party knew or should’ve known it would’ve been named but-for identity mistake

Question 43

Intervention

Answer 43

Matter of right or permissive

Right to intervene: (1) interest in underlying transaction, and (2) resolving case without intervenor impairs ability to protect interests, and (3) current D does not adequately represent intervenor’s interests

Permissive: intervenor’s claim shares common question of law/fact

Question 44

Class action

Answer 44

case where one or more representatives litigate on behalf of group

Court must approve the class action: (1) sufficiently numerous P’s, (2) common question of law/fact, (3) representative typical of class’s claims, (4) representative capable of fairly/adequately representing class (5) common issues to entire class predominate individual issues, (6) class resolution is superior to individual case resolution
- SMJ if (1) atleast 100 class members (2) claim over 5 million, (3) any class member diverse from any D, but not if 2/3 of class lives in one state and at least 1 D