Civil Procedure

Question 1

When are two claims considered related for purposes of supplemental jurisdiction?

Answer 1

When the claims arise out of a common nucleus of operative fact

Question 2

What are the four requirements for a class action?

Answer 2

(i) The class must be so numerous that joinder of all members is impracticable (numerosity);

(ii) There must be questions of law or fact that are common to the class (commonality);

(iii) The claims or defenses of the representatives must be typical of the class (typicality); and

(iv) The representatives must fairly and adequately protect the interests of the class (adequacy).

Question 3

What is the due process requirement for in personam jurisdiction?

Answer 3

Due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

Question 4

Generally, where is venue proper?

Answer 4

(i) A judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or

(ii) A judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located.

Question 5

Under the Erie Doctrine, what law governs in a diversity action?

Answer 5

In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located, if there is no federal law on point. The district court will apply federal procedural law, even if a state rule or statute is in conflict.

Question 6

What are the requirements for a plaintiff seeking a preliminary injunction?

Answer 6

A plaintiff seeking a preliminary injunction must establish that:

(i) He is likely to succeed on the merits;

(ii) He is likely to suffer irreparable harm in the absence of relief;

(iii) The balance of equities is in his favor; and

(iv) The injunction is in the best interest of the public.

Question 7

What are the required elements for a complaint?

Answer 7

Under Rule 8(a), a complaint must include:

(i) A short and plain statement of the grounds that establish the court’s subject matter jurisdiction;

(ii) A short and plain statement of the claim establishing entitlement to relief; and

(iii) A demand for judgment for the relief sought by the pleader.

Question 8

What is federal question jurisdiction?

Answer 8

Under 28 U.S.C. 1331, the district courts have original jurisdiction over all actions arising under the Constitution, laws, or treaties of the United States.

Question 9

When can a party amend a pleading?

Answer 9

Under Rule 15(a), a party may amend a pleading:

(i) Once as of right within 21 days if no responsive pleading is required; or

(ii) If a responsive pleading is required, within 21 days of service of the responsive pleading or within 21 days of being served with a motion under Rule 12(b), whichever is earlier.

Additionally, the court should freely give leave to amend a pleading when justice so requires.

Question 10

When may a plaintiff join as a permissive joinder?

Answer 10

Pursuant to Rule 20(a)(1), a person may join in one action as plaintiff if:

(i) They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(ii) Any question of law or fact common to all plaintiffs will arise in the action.

Note: The same circumstances apply to permissive joinder of defendants under Rule 20.

Question 11

Under Rule 20 permissive joinder, does the plaintiff to be joined have to meet the requirements of federal subject matter jurisdiction?

Answer 11

If multiple plaintiffs join together under Rule 20, then supplemental jurisdiction can exist for a claim that does not meet the statutory jurisdictional amount, provided the parties still meet the requirements of complete diversity.

Question 12

When must an objection to improper venue be raised?

Answer 12

An objection to improper venue must be raised in a pre-answer motion to dismiss under Rule 12(b)(3) or in the first responsive pleading, if a motion under Rule 12(b)(3) is not filed.

Question 13

What are the five bases for in personam jurisdiction?

Answer 13

(1) Voluntary Presence
(2) Domicile
(3) Consent
(4) Long-arm statutes
(5) Attachment

Question 14

What is a compulsory counterclaim?

Answer 14

A pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if:

(i) The claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim; and

(ii) The claim does not require adding another party over whom the court cannot acquire jurisdiction.

Note: A party who fails to assert a compulsory counterclaim waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court.

Question 15

What are the three types of personal jurisdiction?

Answer 15

(1) In personam jurisdiction
(2) In rem jurisdiction
(3) Quasi-in-rem jurisdiction

Question 16

What are the three types of class actions?

Answer 16

(1) Risk of Prejudice: The class is maintainable if the prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or if prosecution of the claims through separate actions would impair the interests of the class members.

(2) Final Equitable Relief: A class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party.

(3) Common Legal or Factual Questions: A class can be certified if questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method for bringing about a fair and efficient adjudication of the controversy.

Question 17

When a class action is brought under a common legal or factual question, what seven pieces of information must be stated in the notice provided to the members?

Answer 17

(i) The nature of the action;

(ii) The definition of the class;

(iii) The class claims, issues, or defenses;

(iv) That a class member may enter an appearance through an attorney if the member so desires;

(v) That the court will exclude from the class any member who requests exclusion;

(vi) The time and manner for requesting exclusion; and

(vii) The binding effect of a class judgment on members.

Question 18

What are the three types of mandatory disclosures?

Answer 18

Rule 26(a) requires the parties to make:

(i) Initial disclosures;

(ii) Disclosures of expert testimony 90 days before trial; and

(iii) Pretrial disclosures 30 days before trial.

Question 19

In assessing whether a case can be filed in federal court, when is diversity determined?

Answer 19

Diversity is determined at the time the case is filed. There is no requirement that diversity exist at the time the cause of action arose. A change in citizenship or amount in controversy after the filing of the case will not affect diversity jurisdiction that was in existence at the time of the filing. In addition, a change in the parties as a result of substitution or intervention will not affect diversity jurisdiction.

Question 20

How does a party make a demand for a trial by jury?

Answer 20

Any party may make a written demand for a trial by jury. The demand, which may be made separately or in a pleading, must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury, and filed with the court within a reasonable time after service.

Question 21

How many interrogatories may a party serve on another party?

Answer 21

Pursuant to Rule 33(a), any party may serve no more than 25 written interrogatories on any other party.

Question 22

How long may a temporary restraining order remain in effect?

Answer 22

A temporary restraining order may remain in effect for only a limited number of days, but no longer than 14 days unless good cause exists or the adversary consents.

Question 23

How much time does a party have to respond to interrogatories?

Answer 23

The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.

Note: The court may order or the parties may stipulate to a shorter or longer time.

Question 24

What three factors will a court consider when deciding to set aside a default judgment?

Answer 24

Three factors the courts generally consider are:

(i) Whether the defendant’s failure to act was willful;

(ii) Whether setting the default aside would prejudice the plaintiff; and

(iii) Whether the defendant has presented a meritorious claim.

Question 25

How long does a defendant have to respond to a complaint?

Answer 25

Under Rule 12, within 21 days of service of process, a defendant must respond to a complaint either by an answer or by a pre-answer motion.

Question 26

Who is responsible for serving the summons and complaint, and when must it be served?

Answer 26

The plaintiff is responsible for serving the summons and complaint upon the defendant within 90 days after filing the complaint.

Question 27

How many peremptory challenges and challenges for cause does a party have?

Answer 27

Each party in a civil case gets three peremptory challenges.
Each party is entitled to an unlimited number of challenges for cause.

Question 28

What is the rule for removal when there are multiple defendants?

Answer 28

In general, all defendants who have been properly joined and served are required to join in or consent to the removal. If the defendants are served at different times and a later-served defendant files a notice of removal, then any earlier-served defendant may join in the removal even though that defendant did not previously initiate or consent to removal.

Note: In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal.

Question 29

What seven defenses may be raised in a motion filed under Rule 12(b)?

Answer 29

(i) Lack of subject matter jurisdiction
(ii) Lack of personal jurisdiction;
(iii) Improper venue;
(iv) Insufficient process;
(v) Insufficient service of process;
(vi) Failure to state a claim upon which relief can be granted; and
(vii) Failure to join a necessary or indispensable party under Rule 19.

Question 30

Who has the burden of proof in a claim for summary judgment?

Answer 30

The movant has the burden of persuasion on a motion for summary judgment. Once the movant makes a prima facie showing that summary judgment is appropriate, the burden shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of fact for trial.

Question 31

Which defenses are waived unless raised in the pre-answer motion or answer?

Answer 31

Under Rule 12(h)(1), the defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defenses will be waived.

Question 32

What is the standard used in deciding a motion to dismiss for failure to state a claim upon which relief can be granted?

Answer 32

Under Rule 12(b)(6), a claim for relief can be dismissed if it either (i) fails to assert a legal theory of recovery that is cognizable at law, or (ii) fails to allege facts sufficient to support a cognizable claim.

In deciding a motion under Rule 12(b)(6), courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff’s favor, and view the pleading in the light most favorable to the plaintiff.

Question 33

What is removal jurisdiction and who generally has the right to remove?

Answer 33

Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed to the district court for the district and division in which the state court action is pending.

Generally, the right of removal is a right of the defendant.

Question 34

What is a judgment as a matter of law, and what is the standard used in deciding these motions?

Answer 34

Under Rule 50(a), once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if the court finds that there is insufficient evidence for a jury reasonably to find for that party.

The court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party.

Question 35

When may a party bring a motion for judgment as a matter of law?

Answer 35

A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury.

Note: If a party moves for a judgment as a matter of law after the close of the plaintiff’s case and the motion is denied, then the party may be unable to pursue a renewed motion for judgment as a matter of law after entry of judgment unless the party also moves for judgment as a matter of law after the presentation of all evidence.

Question 36

What are six grounds for a court to grant a motion for a new trial?

Answer 36

(i) Error at trial that renders the judgment unfair;
(ii) Newly discovered evidence that existed at the time of the trial was excusably overlooked and would likely have altered the outcome of the trial;
(iii) Prejudicial misconduct of counsel, a party, the judge, or a juror;
(iv) A verdict that is against the clear weight of the evidence;
(v) A verdict that is based on false evidence; or
(vi) A verdict that is excessive or inadequate.

Note: Rule 59 does not specifically list the grounds that will justify a new trial, but in practice, the overarching theme is that the court may grant a new trial to prevent a miscarriage of justice.

Question 37

What are the two ways in which a defendant can consent to in personam jurisdiction?

Answer 37

1. Express consent: defendant agrees in advance to submit to the jurisdiction of the court if a lawsuit is brought by the plaintiff, or stipulates to personal jurisdiction once an action is brought
2. Implied consent: through conduct, such as filing a counterclaim or driving a vehicle within a state

Question 38

What are the requirements of claim preclusion?

Answer 38

Claim preclusion (res judicata) requires:

(i) A valid final judgment on the merits;

(ii) Sufficiently identical causes of action; and

(iii) Sufficiently identical parties.

Question 39

Federal courts of appeals have jurisdiction over appeals of what types of judgments?

Answer 39

Under 28 USC 1291, the federal courts of appeals have jurisdiction over appeals of the final judgments of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.

Question 40

For the purposes of diversity jurisdiction, how is a corporation’s citizenship determined?

Answer 40

A corporation is considered a citizen of the state(s) and/or foreign country of incorporation and also the state or foreign country where it has its principal place of business.

Note: There can be more than one state or foreign country of incorporation, but only one state or foreign country will qualify as the principal place of business.

Question 41

What is the “well-pleaded complaint rule?”

Answer 41

This rule refers to the determination of federal question jurisdiction made by considering only the necessary elements of the plaintiff’s cause of action, not anticipated defenses, answers, or counterclaims.

This rule applies both to original jurisdiction of the federal court and to removal jurisdiction.

Question 42

Where is an individual’s domicile and how is the domicile changed?

Answer 42

An individual’s domicile is the state where the individual is present and intends to reside for an indefinite period. This state remains the domicile until the individual:
1. Establishes presence in a new place; and
2. Manifests intent to remain there for an indefinite period.

Question 43

Discuss aggregation of claims for amount-in-controversy purposes.

Answer 43

When aggregating claims by a single plaintiff against a single defendant, if the action involves only one plaintiff and one defendant, then the total value of the plaintiff’s diversity claims is calculated to determine the amount in controversy.

Question 44

When and how is the amount in controversy determined for diversity jurisdiction purposes?

Answer 44

The amount in controversy must exceed $75,000, exclusive of interest, costs, and collateral effects of a judgment. The amount in controversy is determined at the time the action is commenced in federal court, or, if the action has been removed to federal court, at the time of the removal.

Note: Attorney’s fees may be included in the calculation if recoverable by contract or statute, and punitive damages may possibly be included as well.

Question 45

How is a corporation’s “principal place of business” determined?

Answer 45

“Principal place of business” refers to the “nerve center” of the corporation. The nerve center is generally the location from which the high-level officers direct, control, and coordinate the activities of the corporation. Typically, the nerve center is the corporate headquarters.

Question 46

What is the purpose of a long-arm statute?

Answer 46

A long-arm statute authorizes personal jurisdiction over nonresidents who engage in some activity in the state or cause some action to occur within the state. A long-arm statute either directly authorizes or has been interpreted as authorizing jurisdiction to the extent permissible under the Due Process Clause.

Question 47

When the relief sought is an injunction, how is the amount in controversy determined for jurisdiction purposes?

Answer 47

In the case of injunctive relief, when it is difficult to assess a dollar amount, some courts consider only the value of the injunction to the plaintiff in determining the amount in controversy and other courts consider the greater of the value to the plaintiff of the removal of the harm or the cost to the defendant of complying with the injunction in determining the amount in controversy.

Question 48

May a single plaintiff aggregate claims against multiple defendants to satisfy the amount-in-controversy requirement?

Answer 48

When a single plaintiff sues multiple defendants, the value of the plaintiff’s claims against each defendant may not be aggregated if the claims are separate and distinct.

If the defendants are jointly liable to the plaintiff, then aggregation to meet the amount-in-controversy requirement is permissible.

Question 49

When a case is removable from the outset, how does a defendant begin the process for removal?

Answer 49

A defendant who wants to remove a state court action to federal district court generally must file a notice of removal with the district court within 30 days after receipt or service of the initial pleading or summons.

Question 50

Typically, if a defendant is voluntarily present in the forum state and served with process there, then the court has personal jurisdiction over the defendant.

What are two exceptions?

Answer 50

(1) If a plaintiff fraudulently brings a defendant into the state for the purpose of serving process on the defendant

(2) If a defendant is merely passing through the state to attend other judiciary proceedings