Civil Procedure

Question 1

Where is venue proper?

Answer 1

A suit must be brought in a proper venue. There may be multiple federal districts within a state, and venue may be proper in more than one district. Venue is proper is any district where:
(1) any defendant resides, as long as all defendants reside in the same state;
(2) a substantial part of the events that gave rise to the suit occurred or a substantial part of the property at issue is located; or
(3) any defendant is subject to the court’s personal jurisdiction only if neither of the above apply

Question 2

What are the 12(b) motions that must be raised first?

Answer 2

(1) lack of SMJ or PJ
(2) improper venue
(3) insufficient process or service of process
(4) failure to state a claim upon which relief can be granted
(5) failure to join required party

Question 3

What are the contents of an answer?

Answer 3

Required
(1) admission & denials
(2) motions not waived
(3) affirmative defenses
(4) compulsory counterclaims

Permitted
(1) permissive counterclaims
(2) crossclaims

Question 4

When is supplemental jurisdiction permitted?

Answer 4

Supplemental jurisdiction is generally permitted when these supplemental claims share a common nucleus of operative facts with a claim within the court’s original subject-matter jurisdiction.

However, when the claim is based solely on diversity jurisdiction, supplemental jurisdiction is not permitted if a supplemental claim:
(1) would contaminate diversity of citizenship
(2) seeks $75,000 or less and is made by a plaintiff (a) against parties added through joinder, intervention, or impleader; or (b) seeking to join through compulsory joinder or intervention

Question 5

How can subject-matter jurisdiction be achieved in class actions?

Answer 5

(1) Federal question - arises under U.S. Constitution, treaty, or federal law

(2) Diversity - amount-in-controversy for any named plaintiff’s claim exceeds $75,000 AND named opposing parties are citizens of different states

(3) Class Action Fairness Act - (a) 100 or more members; (b) at lease one class member and one defendant are diverse; and (c) AIC for aggregated claims exceeds $5 million.

Question 6

When can a party move for judgment as a matter of law (JMOL)?

Answer 6

This motion may be filed before the case is submitted to the jury but only after the nonmovant has had the opportunity to present evidence to establish that claim or defense. That means that a plaintiff may move for JMOL after the defendant presents its case.

A motion for JMOL is a request that the court enter a judgment in favor of the movant bc the evidence is legally insufficient for a reasonable jury to find in the nonmovant’s favor. The district court must:
(1) view the evidence and draw all reasonable inferences in the light most favorable to the nonmoving;
(2) disregard any evidence favorable to the movant that the jury is not required to believe; and
(3) not consider the credibility of witnesses or evaluate the weight of evidence.

If a motion for JMOL is denied during trial, the movant can file a renewed motion for JMOL no later than 28 days after the entry of judgment to seek to overturn an adverse verdict

Question 7

When can a party file a motion for summary judgment?

Answer 7

A party can file a motion for summary judgment up to 30 days after close of discovery.

The movant must show:
(1) there is no genuine dispute of material fact; and
(2) the evidence is legally insufficient for a reasonable jury to find in the nonmovant’s favor, so the movant is entitled to judgment as a matter of law

Question 8

What standard of review should the appellate court apply?

Answer 8

The standard of review depends on the error alleged:

(1) Legal issue - such as conclusions of law and jury instructions … De novo standard where there’s no deference and reverse if reasonable belief judge misinterpreted law

(2) Fact issue - such as credibility of witnesses and factual determinations/verdict … Clear error (bench trial) standard where there’s high deference and reverse if no reasonable judge would have made finding … Substantial evidence (jury trial) standard where there’s high deference and reverse if no reasonable jury would have made finding

(3) Discretionary ruling - such as injunctions and admissibility of evidence … Abuse of discretion standard where there’s high deference and reverse if decision was unreasonable/arbitrary

Question 9

What are the two types of collateral estoppel?

Answer 9

(1) Mutual - where parties from the first action assert collateral estoppel in a subsequent action against other parties from the first action

(2) Nonmutual - where nonparties from the first action assert collateral estoppel in a subsequent action against parties from the first action.

Defensive estoppel is used by a defendant in the second action to avoid relitigating an issue in the first action OR plaintiff in second action asserts to establish issue from first action.

Offensive estoppel is used by a plaintiff in the second action to establish an issue from the first action:
(1) plaintiff could have easily joined first action;
(2) defendant had little incentive to vigorously defend in first action;
(3) second action affords procedural opportunities available in first action; or
(4) inconsistent findings on issue exist.

Question 10

Choice of law in diversity cases:

Answer 10

(1) Substantive issue - legal rights & duties = State

(2) Procedural issue - processes & procedures = Federal

(3) Unclear Issue -
Does federal law directly addresses issue?
(a) Federal-rule analysis - valid federal law (i) is arguably procedural and (ii) does not modify substantive right … No = State … Yes = Federal
(b) Erie analysis - (i) state law is outcome-determinative and (ii) no countervailing federal policy interest … No = Federal … Yes = State

Question 11

What are the federal diversity jurisdiction exceptions?

Answer 11

Federal courts cannot exercise diversity jurisdiction over cases involving:
(1) probate matters; or
(2) domestic relations

Question 12

What are the four ways to invoke in personam jurisdiction?

Answer 12

(1) Service of process - serving process on defendant voluntarily in state where court is located

(2) Consent - (a) Express = contractual agreement; (b) Implied = engaging in specific activity that state has substantial interest in regulating; (c) Waiver = untimely objection to personal jurisdiction; (d) Appearance = voluntarily appearing in court to litigate merits of case

(3) Specific - plaintiff’s claim arises from or is closely related to defendant’s minimum contacts with forum state AND exercise of jurisdiction complies with notion of fair play & substantial justice. A forum state’s long-arm statute specifies when a court within the state can exercise specific personal jurisdiction over a nonresident.

(4) General - defendant has continuous & systematic contacts with forum state so substantial that defendant is essentially “at home”

Question 13

What is a preliminary injunction?

Answer 13

Is a temporary court order that commands or prohibits certain actions while the case is pending before the court. Issued prior to a full hearing on the merits. Must establish:
(1) the movant is likely to succeed on the merits;
(2) the movant is likely to suffer irreparable harm in the absence of relief;
(3) the balance of equities is in the movant’s favor; and
(4) the injunction is in the best interest of the public

Question 13

When must a party file a counterclaim?

Answer 13

If a defendant has a claim against the plaintiff, then the defendant may state it as a counterclaim in the answer to the complaint.

However, a counterclaim is compulsory and must be asserted in the defendant’s answer if it:
(1) arises from the same transaction or occurrence as the plaintiff’s claims; and
(2) does not require adding parties over whom the court cannot acquire jurisdiction.

Failure to do so generally results in the counterclaim being waived and barred from being raised in subsequent lawsuits. But when an action is dismissed before a defendant’s answer is filed, any counterclaims that would have been compulsory in an answer are not waived bc the defendant never had the opportunity to raise.

Question 14

What are class action certification requirements?

Answer 14

Prerequisites:
(1) Numerosity - joinder of all members is impracticable;
(2) Commonality - class shares common question of law or fact;
(3) Typicality - named parties’ claims or defenses are typical of class; and
(4) Adequacy - named parties will protect class’ interests

Types:
(1) Prejudicial risk to parties or absent class members if separate action;
(2) Final equitable relief is appropriate bc the opposing party’s actions apply to whole class; or
(3) Common questions of law or fact predominate & class action is best method to resolve dispute.

Question 15

What are the requirements for class action settlement, compromise, or voluntary dismissal?

Answer 15

Any certified class action can be settled, compromised, or voluntarily dismissed.

(1) court provides reasonable notice of proposal to all class members

(2) parties file statement identifying agreements made in connection with proposal

(3) hearing & opportunity for members to object

(4) court finding that proposal is fait, reasonable & adequate

Question 16

What are initial disclosures?

Answer 16

To facilitate discovery, parties are generally required to make initial disclosures of basic information about the case without a discovery request. This includes, among other things, all documents and items that the disclosing party possesses and may use to support a claim or defense.

Question 17

When can a court order a mental or physical examination?

Answer 17

The court where the lawsuit is pending may order a party to undergo a mental or physical examination by a suitable licensed or certified examiner. This court order is valid when:
(1) mental or physical condition is in controversy;
(2) the motion for the order is based on good cause; and
(3) the order provides notice by specifying the time, place, manner, conditions, and scope of the exam, as well as who will perform it.

Question 18

When is a leave of court required for a deposition?

Answer 18

Court leaves or parties’ stipulation required to conduct deposition when:
(1) the deposition exceeds 10-deposition limit
(2) deposition sought before parties’ initial planning conference; or
(3) deponent already deposed in action

Question 19

How to preserve an error in jury instructions?

Answer 19

To challenge a jury instruction on appeal, a party must preserve the issue at trial by timely objecting to the instruction on the record and stating the grounds for the objection. An objection is timely if it is made promptly after learning that a jury instruction has been or will be given OR that a request for a jury instruction has been refused

Question 20

How can a party demand a jury trial and what are a jury’s effects?

Answer 20

A party may demand a jury trial on any triable issue by:
(1) serving the other parties with a written jury trial demand no later than 14 calendar days after the last pleading directed to that issue is served; and
(2) filing the jury trial demand with the court within a reasonable time after service of the demand.

Unless the parties stipulate otherwise, a verdict must be unanimous and returned by at least six jurors. To determine whether a verdict is unanimous, the court may poll the jurors individually after a verdict is returned but before the jury is discharged. This must be done upon a party’s request, or the court may do so on its own initiative (i.e., sua sponte). If the poll reveals that the verdict is not unanimous, the court can either order a new trial OR direct the jury to deliberate further

Question 21

How can a court correct a post trial mistake?

Answer 21

A district court may correct a clerical mistake or a mistake arising from an oversight or omission in a judgment, order, or other part of the record.

The court may do so on its own initiative (i.e., sua sponte) or pursuant to a party’s motion before an appeal from the judgment or order is docketed. However, after an appeal is docketed, the district court can correct the mistake only with the appellate court’s leave (i.e., permission).

Question 22

When can a party seek extraordinary relief?

Answer 22

A party can seek extraordinary relief from a district court’s final judgment in limited circumstances.

This motion for relief may generally be made within a reasonable time, but it must be made within one year from the entry of the final judgment when the motion asserts any of the following grounds for relief:
(1) The judgment was due to mistake, inadvertence, surprise, or excusable neglect by the nonmovant or the court.
(2) The movant has discovered new evidence that could not have been discovered with reasonable diligence in time to move for a new trial—i.e., within 28 days of the final judgment.
(3) The nonmovant engaged in misrepresentation, misconduct, or fraud.

Question 23

What is the final judgment rule?

Answer 23

The final-judgment rule bars federal appellate courts from hearing an appeal until the federal district court has entered a final judgment. A final judgment is a judicial decision that fully resolves the dispute on the merits and leaves nothing for the court to do but enforce the judgment.

However, the following exceptions allow appeals:
(1) Injunction
(2) Certification
(3) Class action certification - 14 days after order entered
(4) Appointment of receiver
(5) Admiralty cases
(6) Collateral-order doctrine
(7) Bankruptcy
(8) Mandamus
(9) Patent-infringement order

Mnemonic: In Certain Circumstances, An Appeal Can Be Made Prematurely

Question 24

When can an answer be amended?

Answer 24

Under FRCP 15, an answer can be amended once as a matter of course within 21 days:
(1) after serving the answer, if no responsive pleading (ex. reply) is required or
(2) if a responsive pleading is required, after being served with a responsive pleading or motion under FRCP 12(b), (e), or (f)—whichever occurs first.

Question 25

What is impleader?

Answer 25

Impleader (ie. third-party practice) allows a defendant to add a nonparty (ie. third-party defendant) to a suit who may be liable to the defendant for all (ie. indemnity) or part (ie. contribution) of the plaintiff’s claim. When this occurs, the plaintiff may assert his/her own third-party claim against the third-party defendant if that claim:
(1) arises out of the same transaction or occurrence that is the subject matter of the plaintiff’s claim against the defendant in the original complaint and
(2) satisfies original subject-matter jurisdiction on its own.

Question 26

What are the two types of dismissal?

Answer 26

A suit can be dismissed in two ways:
(1) Voluntary dismissal – when the plaintiff moves to dismiss the suit

(2) Involuntary dismissal – when the defendant moves to dismiss the suit. Operates as an adjudication on the merits unless the court orders otherwise. This means that the plaintiff’s action is dismissed with prejudice, which precludes the plaintiff from suing the defendant on the same claim in the future. A defendant can move for an involuntary dismissal under FRCP 41 if the plaintiff failed to comply with a rule or court order or failed to prosecute the action—just as the defendant did here.

Question 27

How can a party strike potential jurors from serving on the jury?

Answer 27

During this process, each party may strike potential jurors from serving on the jury through:

(1) Three peremptory challenges – to strike a potential juror for any reason other than race, ethnicity, or gender without explanation; and

(2) Unlimited challenges for cause – to strike a potential juror based on his/her inability to serve as a fair and impartial finder of fact (ex. financial stake in a party, bias, relation to party or party’s counsel)