Civil Procedure

Question 1

How is citizenship determined for the three main types of parties?

Answer 1

• Individuals—the (one) state where a party is domiciled (resides with intent to remain)
• Corporations—state(s) where incorporated and the state where principal place of business located
• Partnerships/LLCs—based on domicile of each individual partner/member

Question 2

When is supplemental jx available (not including exceptions)?

Answer 2

A court with SMJ over a claim may hear other claims if they share a common nucleus of operative fact (CNOF).

Question 3

When is sup jx avaialble under diversity jurisdiction?

Answer 3

• Counterclaims—compulsory yes; permissive no, unless they meet diversity requirements
• Cross claims—yes, if they arise out of the same transaction or occurrence
• Joinder of parties—claims from permissive joinder cannot destroy complete diversity

Question 4

When is sup jx unavailable under the FRCP (for Ps)?

Answer 4

Supplemental jurisdiction does not extend to claims by (i) existing plaintiffs against defendants joined as necessary or permissive parties or as a result of impleader or intervention or (ii) plaintiffs joined as necessary parties or as a result of intervention

Question 5

What are the limitations on removal jx beyond needing federal SMJ?

Answer 5

• Cannot remove if any defendant is a citizen of the state where the claim is filed
• Notice to remove must be filed within one year after action is commenced unless P acted in bad faith
• Notice to remove need include only a plausible allegation that the amount in controversy exceeds $75,000

Question 6

What are the four bases for PJ?

Answer 6

1. Presence—physically present and served with process; cannot be a result of fraud
2. Domicile—resides in the state with intent to remain indefinitely, even if temporarily away
3. Consent—by authorized agent to accept service of process, failure to timely challenge by motion to dismiss, registering to do business (if required by the state), voluntary appearance, or implied consent (e.g., driving a vehicle in the state, filing a counterclaim)
4. Long-arm statute—most states have a statute authorizing PJ over non-residents who engage in activity or cause action to occur within the state; exercise of a long-arm statute is authorized to the extent permitted by the Due Process Clause

Question 7

What does the Due Process Clause require in order to get PJ over a defendant?

Answer 7

Due process requires sufficient minimum contacts between a party and the forum state so as not to offend traditional notions of fair play and substantial justice.
1. Minimum contacts
* Purposeful availment—purposeful and substantial contacts with the forum state
* Foreseeability—D should reasonably anticipate being taken to court there
* Relatedness—between cause of action and forum state (general or specific PJ)
2. Fair play and substantial justice (fairness)
* Interest of forum state
* Burden on D to appear (convenience)
* Interest in judicial efficiency
* Shared interest of the states in promoting common social policies

Question 8

What are the methods of service on an individual?

Answer 8

• Personal “in hand” service;
• Leaving it at D’s usual place of abode with a person of suitable age and discretion residing therein;
• Delivering it to a D’s agent; or
• Other method allowed by state law.

Question 9

How does waiver of service operate?

Answer 9

P may send a form via first class mail or other reliable means, requesting D waive service by returning the form within a reasonable time limit (usually 30 days unless a foreign D); D’s waiver extends the period to serve an answer to 60 days after the request was sent.

Question 10

Where is venue proper in federal court?

Answer 10

Venue in a federal action is proper in a district in which any D resides (if all Ds reside in the same state) or where a substantial part of the claim arose or property is located. If there is no other option, venue is proper where the D is subject to personal jurisdiction.

Question 11

How does a court evaluate a motion to transfer?

Answer 11

1. If venue is proper, the court can transfer to another district with proper venue based on convenience of the parties and witnesses and in the interest of justice (transferror law applies)
   * Forum non conveniens—the court will dismiss an action when the forum would be too inconvenient for the parties and a foreign (not a federal) court is more appropriate
2. If venue is improper, the court must dismiss or transfer to a district where venue is proper (transferee law applies)
3. Forum Selection Clause—followed unless unreasonable and unjust or a result of fraud

Question 12

What is the Erie doctrine?

Answer 12

A federal court sitting in diversity will apply its own procedural rules but will apply the substantive law of the state in which it sits (if no federal law is on point).

Question 13

When does federal common law apply in a diversity case?

Answer 13

“Uniquely federal interest” is at stake and a significant conflict exists between that and interest and operation of state law.

When there is a conflict between federal and state law and no federal statute or rule is on point, the court will apply state law if it is outcome determinative, if the state’s interest outweighs the federal interest, or if it would prevent forum shopping

Question 14

What must a complaint include?

Answer 14

The complaint must include a short and plain statement with the following:
* Grounds for subject matter jurisdiction;
* Statement of the claim and entitlement to relief; and
* Demand for judgment for the relief sought.

Question 15

When must an answer be filed and what must it include?

Answer 15

Timing—D must respond by answer or motion within 21 days of service of process
Answer—D’s response must admit or deny and raise affirmative defenses or counterclaims

Question 16

What are the grounds for a motion to dismiss and when can it be filed?

Answer 16

◦ Lack of subject matter jurisdiction (may raise at any time, even on appeal);
◦ Lack of personal jurisdiction (waived if not included in first response);
◦ Improper venue (waived if not included in first response);
◦ Insufficient process or service of process (waived if not included in first response);
◦ Failure to state a claim (may raise at any time through trial); and
◦ Failure to join a necessary party (may raise at any time through trial).

Question 17

When can a pleading be amended?

Answer 17

As of right
* Allowed once no later than 21 days after serving it if no responsive pleading is required
* If a responsive pleading is required, within 21 days of service of whichever is received first (i.e., the responsive pleading or 12(b) motion)
2. By leave of court when justice requires and if no undue prejudice to the opposing party

Question 18

What is the relation back doctrine?

Answer 18

An amended pleading will relate back to the date of the original pleading if it involves the same transaction or occurrence and provides notice to the opposing party.
◦ Adding a claim will relate back if it arose out of the same transaction or occurrence
◦ Changing a party must involve the same transaction or occurrence and the party must receive notice within 90 days of filing of complaint and know or have reason to know the action should have been brought against him.

Question 19

What does signing/certifying a pleading or motion mean?

Answer 19

By signing, the signer certifies the filing was made after reasonable inquiry and for a proper purpose, and certifies the legal basis and evidentiary support of the claim.

Question 20

When can a party generally be joined?

Answer 20

Unless the party would destroy diversity, a party may join if her claim arises from the same transaction and occurrence and raises a common question of law or fact.

Question 21

When is a party necessary?

Answer 21

Court cannot afford complete relief without the party;
 There is a danger that the party would be harmed without joining; or
 There is a risk of an inconsistent judgment or double liability

Question 22

When is a party indispensable?

Answer 22

1) Extent to which judgment would prejudice the parties in the person’s absence;
2) Extent to which prejudice could be reduced or avoided by protective provisions;
3) Whether a judgment rendered would be adequate; and
4) Whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder

Question 23

When is intervention allowed?

Answer 23

1. As of right—nonparty has an interest in the subject matter that is not adequately represented and it will be impaired unless the nonparty is allowed to intervene
2. Permissive—nonparty’s claim or defense has a common question of law or fact with the pending claim or the nonparty has a conditional right to intervene under federal statute; allowed within the discretion of the court considering prejudice to the parties
3. Subject matter jurisdiction must exist for the intervenor’s claim; supplemental jurisdiction does not apply if the case is based on diversity jurisdiction

Question 24

What are the requirements for a class action?

Answer 24

Commonality—common questions of law or fact support the claim;
Adequacy—the representatives must adequately and fairly protect the class;
Numerosity—the class size is so large that joinder is impracticable; and
Typicality—the claims or defenses of the representative are typical of the class.

Question 25

What does the Class Action Fairness Act (CAFA) allow?

Answer 25

CAFA allows very large actions involving 100+ members with $5 million+ at stake to proceed with minimal diversity (i.e., any member of a class of Ps is a citizen of a state different from any D).

Question 26

What is the doctrine around work product?

Answer 26

• documents and things prepared in anticipation of litigation
  ◦ Need not be created by an attorney; can be by the party or its representative
  ◦ An exception is made upon showing of substantial need and no other resource
  ◦ No exception for attorney’s mental impressions, legal theories, and opinions

Question 27

What are the five discovery devices?

Answer 27

• Depositions (10 deps of one day)
• Interrogatories (25)
• Requests to produce (including 3P subpoena)
• Physical/mental examination
• Requests for admission

Question 28

When are immediate sanctions available?

Answer 28

Upon failure of a party to attend her deposition, respond to a request for interrogatories, or to produce and permit inspection.

Question 29

What are the four factors in seeking a preliminary injunction?

Answer 29

Likelihood P will succeed on the merits
* Irreparable harm for which there is no remedy at law (inadequate remedy at law)
* Balance of the hardships on both sides and considering the public interest favors P
◦ Consider the feasibility of enforcement and the difficulty of supervision
◦ A negative injunction (an order to refrain from conduct) is easier to enforce
* Best interests of the public

Question 30

What is the standard for a MSJ and when can it be filed?

Answer 30

Standard: There is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

A motion for summary judgment may be filed up until 30 days after the close of discovery

Question 31

When and how is a jury demand made?

Answer 31

Must be in writing and served within 14 days after service of the answer or other pleading directed at the issue; must specify the issues for which a jury is demanded; may be withdrawn with the consent of the other parties.

Question 32

What is the standard process for (renewed) motion for JAML?

Answer 32

MOTION FOR JUDGMENT AS A MATTER OF LAW (“Directed Verdict”)
1. Standard: The evidence could not support a contrary verdict thereby entitling the moving party to judgment as a matter of law.
2. Akin to motion for summary judgment but made after P’s case and again at close of evidence
3. Court will construe all evidence in the light most favorable to the nonmoving party
RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW (formerly JNOV)
1. If a motion for Judgment as a Matter of Law (JML) was filed and the jury returned a contrary verdict, the party may file a renewed motion; filing a motion for JML is a prerequisite
2. The renewed motion must be filed within 28 days after the entry of judgment.

Question 33

What are the grounds for a new trial?

Answer 33

• Trial error resulting in an unfair judgment
• Newly discovered evidence
• Prejudicial misconduct by counsel, parties, judge, or jury
• Verdict is excessive or inadequate
  ◦ Court can reduce an excessive verdict (remittitur), and grant a new trial if the lowered award is not accepted
  ◦ Court cannot increase an award but can grant a new trial

Question 34

What are the grounds for relief from judgment and on what timeline?

Answer 34

Mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation, or misconduct by an opposing party

Within reasonable time (up to one year following entry of judgment)

Question 35

What are exceptions to the final judgment rule?

Answer 35

• Collateral Order Rule: allows a court of appeals to hear and rule on a district court order if it: (i) conclusively determines the disputed issue, (ii) resolves an important issue that is completely separate from the merits of the case, and (iii) is effectively unreviewable on appeal from final judgment
• Interlocutory orders (e.g., injunctions, class certifications)

Question 36

What are the requirements for claim preclusion?

Answer 36

Valid—the court had both PJ and SMJ and afforded due process to the defendant
* Final judgment—there is nothing further to do but enter judgment
* On the merits—not if made on technical grounds (e.g., procedural error)
* Same cause of action—the new cause of action must be sufficiently identical to the original cause of action (arising from the same transaction or series of transactions)
* Same parties or privies—the parties must be the same as before or successors in interest

Question 37

What are the elements of issue preclusion?

Answer 37

• Valid final judgment on the merits
• Same issue—the relevant facts and applicable law (but not parties) must be identical
• Actually litigated—actually and necessarily decided, e.g., not from a default judgment
• Essential to the judgment—necessary to the decision

Question 38

How does mutuality impact collateral estoppel and defensive/offensive uses?

Answer 38

• Mutuality—can only be used against or by one who was a party (or in privity with a party) to the earlier claim
• Nonmutual use—when issue preclusion is used by a party in the later claim who was not a party in the earlier claim:
  (i) Defensive use is allowed when asserted by a defendant against a party who had a full opportunity to litigate in the earlier case
  (ii) Offensive use is permitted at the court’s discretion; if P could have joined in the earlier action, the court should not allow offensive collateral estoppel