Civil Procedure

Question 1

When foreign, non-US citizens are involved, is subject matter jurisdiction satisfied?

Answer 1

1. Federal question
2. Diversity jurisdiction is met:
   — between one US citizens domiciled in the United States and foreign citizens
   — US citizens and permanent residence domiciled in different states or
   — US citizens domiciled in different states with foreign citizens as additional parties.

Question 2

What motions are waived if you don’t assert them in a pre-answer motion or answer, whichever comes earlier?

Answer 2

— PJ
— Venue
— Insufficient service of process

SMJ is never waived, can be asserted anytime

Question 3

What are rules around depositions?

Answer 3

— plaintiff only gets 10 depositions
— cannot repeatedly depose after defendant has already been deposed in action
— must serve party deponent with written notice

If party to be deposed is an organization, notice must describe the matters for examination with reasonable particularity and satisfy all other notice requirements 

Question 4

What are rules around depositions?

Answer 4

— plaintiff only gets 10 depositions
— cannot repeatedly depose after defendant has already been deposed in action
— must serve party deponent with written notice

If party to be deposed is an organization, notice must describe the matters for examination with reasonable particularity and satisfy all other notice requirements 

Question 5

When can federal district courts exercise supplemental jurisdiction?

Answer 5

If subject matter jurisdiction is based on federal question—
As long as the claims share a common nucleus of operative fact

If subject matter jurisdiction is based on diversity —
Usually if it’s D bringing a counterclaim or cross claim, supplemental jurisdiction applies

But if it’s another P trying to join another claim, permissive joinder of another P can join action even if their AIC is less than 85k so long as diversity is not ruined

Question 6

When can plaintiffs join in the same suit?

(in other words permissive joinder)

Answer 6

(1) their claims arise out of the same occurrence

(2) AND the action involves a common question of law or fact

Question 7

When can a defendant remove a suit from state court to federal court?

Answer 7

If the case falls within the federal courts original subject matter jurisdiction

Question 8

When can a party seek to return the case to state court by filing a motion to remand?

Answer 8

(1) when subject matter jurisdiction arises from diversity jurisdiction

(2) AND a defendant is a citizen of the state where the case was filed

Question 9

How much time does a defendant have to respond to a complaint?

Answer 9

A defendant generally has 21 days after processes serve to file a pre-answer motion or answer

Question 10

What’s the quartz consideration on a motion to dismiss for failure to state a claim?

Answer 10

A motion to dismiss for failure to state a claim is a request that the cord dismissed the suit because the non-movements complaint fails to assert a legally cognizable claim

The court must
—Must only look at the contents of the pleadings,
— treat all well-pleaded facts in the complaint as true
—and view the evidence and draw all reasonable inferences in light most favorable to the nonmovant

Question 11

What must an answer include otherwise will be waived and unable to be used as grounds for any motion to dismiss?

Answer 11

— admissions or denials for each allegation
— motions that have not already been waived
— affirmative defenses (e.g statute of frauds)
— compulsory counterclaims

Question 12

What must an answer include otherwise will be waived and unable to be used as grounds for any motion to dismiss?

Answer 12

— admissions or denials for each allegation
— motions that have not already been waived
— affirmative defenses (e.g statute of frauds)
— compulsory counterclaims

Question 13

When is supplemental jurisdiction NOT permitted (solely diversity jurisdiction)?

Answer 13

If the supplemental claim would contaminate diversity of citizenship

Or

The supplemental claim seeks 75k or LESS and is made by a plaintiff against added party

Question 14

What’s the reviewing standard for when a court is considering a motion for JMOL?

(3 components)

Answer 14

(1) view the evidence and draw reasonable inferences in the non-movant’s favor
(2) disregard any evidence favorable to the moving that the jury need not believe
(3) must not weigh the credibility of evidence

Question 15

What’s the appellate standard of review for conclusions of law?

Answer 15

De novo
= no deference
= reverse if reasonable belief that judge misinterpreted law

Question 16

What’s the appellate standard of review for jury instructions?

Answer 16

De novo
= no deference
= reverse if reasonable belief that judge misinterpreted law

Question 17

What’s the appellate standard of review for injunctions?

Answer 17

Injunction is a discretionary ruling (as opposed to a legal issue or fact issue)

Abuse of discretion
= high deference
Reverse if decision was unreasonable/arbitary

Question 18

What’s the appellate standard of review for admissibility of evidence?

Answer 18

Abuse of discretion
= high deference
Reverse if decision was unreasonable/arbitrary

Question 19

What are the four traditional bases of personal jurisdiction?

Answer 19

(1) Domicile

(2) Physical Presence — service of process on the defendant while he is physically present in the form state will satisfy this base unless the defendant was in the state only to answer a summons, or was brought there by force or fraud

(3) Consent

(4) Waiver — unlike subject fiction lack of personal jurisdiction can be waived. For example, by substantial participation on the merits before raising the objection.

Question 20

What happens if none of the traditional bases of personal jurisdiction are satisfied?

Answer 20

Personal jurisdiction may still be obtained by using a state, long arm statute: sufficient minimum contacts

This means that personal jurisdiction is allowed when it does not offend, traditional notions of fair play and substantial justice. The courts will weigh:
— convenience for defendant
— efficiency
— shared interest of the states in furthering social policies

Question 21

How does specific jurisdiction arise?

Answer 21

(1) the defendant purposely availed himself
ex: using state highways

(2) defendant, new, or reasonably should have anticipated that his activities in the forum state made it foreseeable that he may be “haled” to court there

Question 22

In what time period must the summons and complaint be served on the defendant?

Answer 22

Within 90 days after the complaint is filed with the court

Question 23

In what time period must the summons and complaint be served on the defendant?

Answer 23

Within 90 days after the complaint is filed with the court

Question 24

Who can be a process server?

Answer 24

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

(doesn’t matter if the process server is somehow related to or has bad blood with the defendant)

Question 25

Where is venue proper?

Answer 25

(1) in a judicial district where any defendant resides, if all of the defendants reside in the same state

(2) where a substantial part of the events giving rise to the claim occurred

(3) where a substantial part of the property that is the subject of the action is

(4) as a fallback provision, if the above three don’t work, then any judicial district in which any defendant is subject to personal jurisdiction

Question 26

If a court transfers a case to a different venue and the original venue was proper— what happens with choice of law for federal question cases versus diversity cases?

Answer 26

Federal question:
Transferee court must apply federal law as interpreted by its own federal court of appeals

Diversity case:
Transferee court must apply law that would have been applied in district court that transferred the case

Question 27

If a court, transfers, a case to another venue and the original venue was improper— what happens with choice of law for diversity cases vs. federal question?

Answer 27

Federal question:
(Same as before) the transferee must apply the federal law as interpreted by its own federal court of appeals

Diversity case:
Transferees court must apply choice of law rules of state in which it is located

Question 28

What must a plaintiff seeking a temporary restraining order or a preliminary injunction establish?

Answer 28

(1) that she is likely to suffer a reparable harm if the injunction is not issued

(2) that she is likely to suffer greater harm than the defendant

(3) that she is likely to succeed on the merits

(4) and that the injunction is in the best interest of the public

Question 29

How is a temporary restraining order different from preliminary injunction?

Answer 29

Temporary restraining orders may not last longer than 14 days unless good cause exists or the non-moving party consents

Question 30

What notice is required for a temporary restraining order or preliminary injunction?

Answer 30

TRO also can be issued without written or oral notice to the non-moving party ONLY IF:
(1) Movant’s Attorney certifies in writing any efforts made to give notice to the non-moving party and
(2) reasons why it should not be required

For Preliminary Injunction,
Non-moving party MUST be given notice and opportunity to oppose preliminary injunction at a hearing

Question 31

When can a party amend their pleading?

Answer 31

By Right
— a party may amend pleading once as of right within 21 days if no responsive pleading is required
— if responsive pleading is required, party may amend within 21 days of being served with motion to dismiss or service of the responsible pleading (whichever comes first)

By Leave of Court
— court can permit an amendment to a pleading when justice so requires (and when it would not result in undue prejudice to the opposing party)

Question 32

How does the relation back doctrine apply to new claims or defenses?

Answer 32

If the new claim or defense arose out of the same transaction or occurrence in the original, pleading, then the amendment will relate back to the date of the original pleading

Question 33

How does relation back apply to new parties?

Answer 33

Amendment will relate back to the date of the original pleading if:

(1) a new party assert to claim that arose out of the same transaction or occurrence as the original pleading

(2) party to be brought in receives notice of action within 90 days

(3) party to be brought in knew or should have known that action would have been brought against him

Question 34

What’s a compulsory joinder where P must join an absent party or face dismissal?

Answer 34

(1) if the court has personal jurisdiction over the absent party

(2) absent party’s presence would not destroy SMJ or venue

(3) either complete relief cannot be accorded among the other parties without the absent party or the absent party has such an interest in the action that leaving them out would be a substantial risk of multiple or inconsistent obligations

Question 35

When can a party join as plaintiffs or defendants in permissive joinder?

Answer 35

(1) when the claim arises out of the same transaction or occurrence

(2) AND there is a common question of fact or law

Question 36

What are the four requirements for when a class action is proper?

Answer 36

(1) The class is so numerous that joinder of all members is impractical

(2) There are common questions of law or fact to the class

(3) the named parties interests are typical of the class, and

(4) the named parties will adequately represent the interest of the absent members of the class.

Question 37

What are the mandatory initial disclosures that each party must make within 14 days after the parties pre-trial conference?

Answer 37

(1) the names and contact information of individuals likely to have discoverable information
— unless they’ll be using it for impeachment

(2) copies of documents in the disclosing parties, possession or control that may be used to support its claims or defenses

(3) computation of damages claimed by the disclosing party

(4) copies of insurance agreements under which insurer might be liable for all or part of judgment to be entered

Question 38

When will Attorney work product not be protected from disclosure to the opposing counsel?

Answer 38

(1) if the materials are otherwise unavailable

(2) there is a substantial need for the materials

(3) and the materials cannot be obtained without undue hardship

(most often used when a witness has passed away for example)

Question 39

What are the requirements to borrow a claim under res judicata or claim preclusion?

Answer 39

(1) the original original claim must have resulted in a final valid final judgment on the merits

(2) the original, and later filed causes of action must be sufficiently identical, related to the transaction or occurrence

(3) AND the claimant and defendant of the original and subsequent action must be the same

Question 40

What are the requirements to bar an issue under collateral estoppel?

Answer 40

(1) the issue to be precluded must have fact relevant to the particular issue and the applicable law must be identical

(2) the issue must’ve actually been litigated in the prior action

(3) the issue must’ve been determined by a valid final judgment on the merits

(4) the determination must have been essential to the prior judgment

Question 41

Can a minor or legally defendant be served and if so, what governs the service process?

Answer 41

Yes

Must be served in accordance with the service of process rules of the state to where service is made, NOT where case was filed

Question 42

What happens when plaintiff request to increase jury award because damages were inadequate?

Answer 42

Court could even agree with the parties contention but increasing jury awards is never allowed

Because it violates the seventh amendment because the jury has already determined the damages

Question 43

What happens with Remittitur?
Defendant requests to reduce jury award of excessive damages?

Answer 43

This is allowed, and then plaintiff must be offered the choice between
(1) reduced damages or
(2) new trial

Question 44

Motions for summary judgment and their appeal ability

Answer 44

Denial of motion for summary judgment:
NOT appealable

Grant of motion for summary judgment
YES appealable bc SJ means final judgment on meets

Partial summary judgment
NOT immediately appealable

Question 45

Mandamus Review

Answer 45

A judicial order from a higher court, directing a lower court to do something.

Used only in extraordinary cases

Question 46

Where is venue proper after a case has been removed from state court?

Answer 46

Venue would be proper in the federal court in the district where the state action was pending

Question 47

What kinds of things will ALWAYS be governed by state substantive law?

Answer 47

— choice of law: determining which state’s substantive law applies to the chase

— statute of limitations: rules for tolling

— damages: the types and limits

— privileges

— elements of a claim/defense