Civil Procedure

Question 1

Appeals

Answer 1

Generally, only final orders that dispose of an entire case are appealable.

However, the Federal Rules of Civil Procedure provide that the federal court may enter a judgment for fewer than all the claims or parties when the court expressly determines that there is no just reason for delay and directs then entry of a final judgment. This permits an appeal to be taken without waiting for final decisions to be rendered on all the claims in a case.

Question 2

Exceptions to Non - Appealable Ruling

Answer 2

There are a few exceptions where an otherwise non-appealable ruling may be reviewed by the appellate court. These include the collateral-order doctrine, writ of mandamus or pendent appellate jurisdiction.

Question 3

Collateral-Order Doctrine

Answer 3

The collateral order doctrine holds that an immediate appeal may be taken if the claim is separate from the main suit and is too important to require deferring appellate review

Question 4

Writ of Mandamus or Prohibition

Answer 4

A writ of mandamus (commanding a trial judge to act) or prohibition (commanding a trial judge to refrain from acting) are only sought in extraordinary circumstances where an appeal would be insufficient to correct a problem that constitutes a serious abuse of power and immediate action is required.

Question 5

Pendent Appellate Jurisdiction

Answer 5

Pendent appellate jurisdiction holds that once a litigation has been interrupted by a pretrial appeal, judicial efficiency promotes reviewing all appealable decision that can be conveniently reviewed.

The court has held that this must be narrowly defined and that the appealable and non-appealable rulings must be inextricably intertwined.

Question 6

Applicable Law - FRCP

Answer 6

The Federal Rules of Civil Procedure (FRCP) govern.

Question 7

Judgment as a Matter of Law

Answer 7

A motion for judgement as a matter of law (JMOL) may be raised by either party during the trial proceedings claiming that the opposing party has insufficient evidence to reasonable support its case.

Timing is very important in making a motion for JMOL.

The motion for JMOL can be made only after the opposing party has presented its case.

Question 8

Post Judgement JMOL

Answer 8

A party that raised a JMOL may then make a post-judgement JMOL (or renewed JMOL) within 28 days of the entry of a judgement.

The post judgment JMOL is limited to the grounds that were raised by the JMOL

Question 9

Standard for Evaluating Post-Judgement JMOL:

Answer 9

A post-judgment JMOL will be granted only if the court finds that a reasonable jury would not have a legally sufficient basis to find for that party.

When deciding on a post-judgment JMOL, the court must view the evidence in the light most favorable to the nonmoving party

In ruling on this motion, the judge is not authorized to weigh the evidence or judge the credibility of the witness.

Question 10

Grounds for a New Trial

Answer 10

A court may grant a new trial based on a serious error during the trial

This includes a verdict that goes against the weight of the evidence, an excessive verdict, a legal error in an instruction to the jury, misconduct by the jury, etc.

The court may not grant a new trial on the ground that the verdict is against the weight of the evidence unless there is a serious miscarriage of justice.

Question 11

Pre-Answer Motion

Answer 11

Under Rule 12(b), a defense of insufficiency of process (i.e. that the complaint and summons were not properly served upon the opposing party) must be raised in a pre-answer motion or an answer, whichever is filed first.

If the defendant fails to raise the claim in the initial motion, it is deemed to be waived.

Question 12

Cross-Claims

Answer 12

A defendant’s answer may state a cross-claim against a co-defendant for any claim that arises out of the same transaction or occurrence of the original claim.

In determining whether the claim meets this standards, courts look at several factors including whether the claims share common issues of law and fact, common evidence. and whether there is a logical relationship between the defendant’s cross-claim and the plaintiff’s original claim.

Question 13

Subject Matter Jurisdiction

Answer 13

Unlike the state court with unlimited jurisdiction, a federal court has limited jurisdiction to hear cases.

A federal court is required to have subject matter jurisdiction over a claim through either federal question, diversity of citizenship or supplemental jurisdiction.

Question 14

Federal Question Jurisdiction

Answer 14

Federal Question jurisdiction can be found when a case arises under the laws, treaties or constitution of the United States. The plaintiff’s well pleaded complaint is used to determine whether a federal question has been raised.

Question 15

Supplemental Jurisdiction

Answer 15

Supplemental Jurisdiction allows the federal court to hear a claim that would fall outside of its original jurisdiction (diversity jurisdiction or federal question), if the supplemental claim arises out of the same common nucleus of operative fact as the claim with original jurisdiction.

Question 16

Summary Judgment

Answer 16

A motion for summary judgement will be granted by the court if based on the pleadings, affidavits, and discovery there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

In determining whether there are any genuine issues of material fact, the court should construe all factual matters in the light most favorable to the non-moving party.

where the moving party presents evidence of facts that would defeat the non-moving party’s claim, the non-moving party has a responsibility to offer evidence of specific facts showing that there is a genuine issue for trial.

Question 17

Preclusive Effect of Judgment

Answer 17

Certain claims or issues can be precluded from being re-litigated in the interest of fairness and judicial efficiency.

A state court is required to give to a federal judgment the same preclusive effect that the judgment would have in federal court.

Question 18

Claim Preclusion

Answer 18

Claim preclusion (res judicata) applies where there was 1) a valid final judgment on the merits; 2) both parties are the same or are in privity with a party in the prior suit; and 3) the claims arise out of the same transaction or occurrence

parties are in privity with each other where one party’s interest is identical to the other party’s interest, such that a judgment against one party is essentially a judgment against the second party.

A familial relationship alone does not support a finding of privity between the parties.

Question 19

Issue Preclusion

Answer 19

Under issue preclusion (collateral estoppel), issues that were fully and fairly litigated in a previous case can be barred from being relitigated.

For issue preclusion to apply:

1) the issues must be the same; 2) there must have been a valid final judgment on the merits where the issue was essential to the judgment; and 3) the party against who preclusion is asserted must have had a full and fair opportunity to litigate the issue in the first suit.

A judgment entered pursuant to a settlement cannot serve as the basis for issue preclusion in a later case.

Question 20

Discovery

Answer 20

The parties to a lawsuit in federal court may obtain discovery of any non-privileged evidence that is relevant to any party’s claim or defense.

Discovery includes the right to inspect an copy documents that are in the other party’s possession and relevant to the litigation.

Question 20

Work Product Privilege

Answer 20

Under the work product privilege, a party may refuse to turn over documents prepared in the anticipation of litigation.

Question 21

Electronic Discovery

Answer 21

Parties must take reasonable steps to preserve electronically stored information when litigation is reasonably foreseeable.

There are remedies for discovering parties and sanctions against parties who fail to take such steps.

Question 22

Sanctions

Answer 22

In imposing sanctions, courts consider the degree of prejudice the loss of evidence has caused the other party as well as whether there is any evidence of bad faith by intentionally hiding information.

Based on the discretion of the court, the scope of sanctions imposed is broad and may include 1) payment of expenses incurred by the other party as a result of the destruction of evidence, 2) an instruction to the jury authorizing the imposition of an adverse inference from the destruction of evidence, 3) shifting the burden of proof on a relevant issue, or 4) even a judgment against the responsible party.

Question 23

Rule 11 - signature

Answer 23

Rule 11 provides that all papers served in the litigation (i.e. pleadings, motions) must be signed by an attorney or record (or by a party personally, if the party is unrepresented).

When presenting the papers to the court, that party certifies that 1) it is not being presented for any improper purposes, 2) the claims, defenses and other legal contentions are warranted and non-frivilous; 3) the factual contentions have evidentiary support or will likely have evidentiary support after further discovery; and 4) the denials of factual contentions are warranted or reasonably based on lack of information.

The certification must be to the best of the person’s knowledge, information and belief after reasonable inquiry under the circumstances.

Question 24

Rule 11 - Continuing Duty

Answer 24

Rule 11 imposes a continuing duty on parties or attorneys, in that each time a pleading or filing is referred to, the attorney verifies that the contents of that pleading or filing are still supported.

If it should come to light that an assertion in a filing is inaccurate, an attorney has a duty to amend the filing to reflect the truth.

If a party believes the otherside has violated Rule 11, it must serve a motion for sanctions on opposing counsel asking it to withdraw or amend the filing to comply with Rule 11.

If the party fails to do so within 21 days, then the complaining party may file a motion for sanctions with the court.

Question 25

Rule 11 Sanctions

Answer 25

A court has considerable discretion in determining whether to impose sanctions for a Rule 11 violation.

Sanctions under this rule must be limited to what will deter repetition of similar conduct.

Sanctions may include directing payment to the movant of all or part of the reasonable attorney’s fees and other expenses directly resulting from the violation.

In determining what sanction to impose, the court may consider any relevant factors, including whether the conduct was willfull, negligent, or a pattern of activity; what effect it had on the litigation and the pleading; and whether the person was an attorney.

Question 26

Who can get Rule 11 sanctions

Answer 26

The court may issue sanctions against an attorney, law firm or party for failing to comply with Rule 11.

Absent exceptional circumstances a law firm is jointly responsible for a violation committed by its partner, associate, or employee.

A court cannot issue monetary sanctions against a client for an unwarranted claim, defense, or legal contention made by their attorney.

Question 27

Intervention as a Matter of Right

Answer 27

The FRCP require federal courts to allow a non-party to join an action in order to intervene as a matter of right if 1) that party has an interest in the property or transaction that is a subject of the action and 2) the disposition of the action without the party may impair the party’s ability to protect that interest, unless the party is already adequately represented by the existing parties to the litigation.

When the non-party has a protectable interest or would be disadvantaged by the judgment, intervention as a matter of right will likely be granted

Question 28

Interlocutory Injuctions

Answer 28

Interlocutory injunctions such as temporary restraining orders (TRO) and preliminary injunctions are forms of equitable relief granted to maintain the status quo until a trial on the merits may be held.

Question 29

Temporary Restraining Order

Answer 29

A TRO may be granted by the court without notice to the adverse party when it is necessary to prevent immediate and irreparable injury

A TRO only lasts long enough for a court to consider a preliminary injunction which would be no longer than 14 days, absent a showing of good cause or consent by the adverse party

Question 30

Preliminary Injunction

Answer 30

A preliminary injunction is sought prior to the trial on the merits of the case, and is awarded when 1) the plaintiff will suffer irreparable harm if the injunction is not granted; and 2) the harm to the plaintiff if the injunction is not granted outweighs any harm to the defendant, and 3) the plaintiff is likely to be successful on the merits, and 4) public interest favors granting the injunction.

A preliminary injunction may not be issued without providing notice to the adverse party

Question 31

Service of Process - Corporation

Answer 31

the FRCP permits service of process upon a corporation by delivering a copy of the summons and complaint to an officer, managing or general agent of the corporation, or by following a state law for serving a summons in the state where the district court is located or where service is made.

A corporate officer would include the chief executive officer, or anyone so integrated with the corporation that they would realize the responsibility and know what to do with the legal summons and complaint.

Question 32

Principle place of business

Answer 32

The principle place of business is the corporate headquarters or never center where directors and officers are found.

Question 33

Motion to Dismiss - lack of SMJ

Answer 33

A motion to dismiss for lack of subject matter jurisdiction may be raised at any time.

Question 34

Third Party Practice, Interpleader

Answer 34

A defending party may, as a third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.

Usually an impleader claim will be for indemnification or contribution.

While third party complaints are causally referred to as joinder, it is important to distinguish that this third-party practice is technically called impleader

Any party may move to trike the third-party claim, to sever it, or to try it separately rather than seek dismissal for improper joinder.

Question 35

Plaintiff-master of complaint

Answer 35

A plaintiff is generally the master of the suit and controls who to sue, where to sue, and what claims to bring

Question 36

Joinder

Answer 36

Rule 19 gives federal courts the power to compel the joinder of any parties that are necessary to secure a fair consideration and judgment of the issues that the case presents.

A party is necessary if 1) the court cannot provide complete relief between the existing parties if the absent person is not joined or 2) if the absent person is not joined, the absent person’s interests would be impaired or impeded; or 3) the person’s absence may leave any of the parties subject to a risk of multiple liability or contradictory obligations.

Question 37

Counterclaim

Answer 37

A claim for relief brought by a defendant against a plaintiff is a counterclaim. These may be compulsory or permissive

Question 38

Compulsory counterclaim

Answer 38

if a counterclaim arises out of the same transaction or occurrence as one of the plaintiff’s claims it is a compulsory counterclaim and must be raised or it will be barred.

Question 39

Permissive Counterclaim

Answer 39

A permissive counterclaim arises from an event unrelated to the transaction or occurrence giving rise to the suit but may be raised by the defendant against the plaintiff.

Question 40

Amending a Pleading

Answer 40

A party may amend its pleading before trial once as a matter of course within 21 days after serving it.

In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave.

The court freely grants leave to amend, unless doing so would result in injustice such as undue prejudice

This policy encourages that cases are decided on their merits.

Question 41

Non-Mutual Issue preclusion

Answer 41

non mutual issue preclusion is the exercise of issue preclusion by a person who was not a party to the prior litigation.

where a plaintiff asserts it offensively to prevent the defendant who was a party to the prior litigation from relitigating an issue, it is called “offensive” non-mutual issue preclusion.

A plaintiff will be prohibited from invoking non-mutual issue preclusion if the plaintiff in the second action could have easily joined the initial action. This promotes judicial efficiency.

Question 42

Service of Process

Answer 42

Service of process gives the parties to a lawsuit appropriate notice of the initiation of a legal action

Rule 4 of the FRCP permits service of process on a foreign corporation outside of the united states by any means directed by the court so long as it is not prohibited by international agreement.

While email is not an authorized manner of service under RFCP, as long as service by email is reasonably calculated to inform and provide adequate notice of the pendency of a lawsuit, such notice does not violate due process and is consistent with the United States Constitution.

Question 43

substance versus procedure

Answer 43

a federal district court exercising diversity jurisdiction must apply the substantive law of the state in which it sits, including choice of law rules.

Generally, following a transfer based on convenience, the transferee court must apply the same law to the case as would have been applied by the transferor court.

However the court has held that when the parties have contracted in advance to litigate disputes in a particular forum, courts should not unnecessarily disrupt the parties’ settled expectations and will apply the law of the transferee court.

Question 44

Unfair Competition

Answer 44

Unfair competition is a tort claim

Question 45

Most significant relationship, torts application

Answer 45

Under the 2nd restatement, which is followed by state A, the court will apply the law of the jurisdiction that has the most significant relationship to the torts occurrence and the parties.

Courts Consider: the place of inquiry, the place where the conduct causing the injury occurred, the domicile, residence, nationality, place of incorporation, and place of business of the parties; and the place where the relationship, if any, between the parties is centered.

Courts will also consider policy oriented principles.

Where there is a conflict between local and foreign jurisdictions, most courts will apply the local policies unless there is a strong reason not to do so.

Question 46

Removal

Answer 46

A defendant may remove a case from state to federal court, if the case would have fallen into the original jurisdiction of the federal court (federal question jurisdiction or diversity jurisdiction).

When removal is based on diversity, a defendant cannot remove to federal court if the claim was filed int he state court of the defendant’s home state.

Question 47

Venue Transfer

Answer 47

the federal court may transfer a case to another venue, where the case may have been brought, when doing so is reasonably convenient for the parties and witnesses and is in the interest of justice.

Question 48

Venue

Answer 48

Venue is proper in a district where any defendant resides, if 1) all defendants reside in the same state or 2) in any district in which a substantial part of the events or omissions giving rise to the claim occured.

Question 49

Forum Selection Clauses

Answer 49

The language “in the interest of justice,” provides a basis to uphold forum selection clauses through venue transfers unless there is a clear and compelling reason otherwise.

Question 50

Pre-Answer Motion

Answer 50

A party that makes a pre-answer motion must raise all affirmative defenses including failure to state a claim and insufficiency of service of process in the answer or they are deemed to be waived (FRCP 12b)

Question 51

Motion to Dismiss

Answer 51

A motion to dismiss is a formal request for the court to dismiss the case.

Question 52

Amending a Motion to Dismiss

Answer 52

Court have allowed the amendment of a motion to dismiss before the motion is heard so long as the adverse party is not prejudiced by the amendment and there is no delay in the determination of the case.

Amendment includes a defense or objection inadvertently omitted by the moving party.

Question 53

Service of Process

Answer 53

Service of process gives the parties to a lawsuit appropriate notice of the initiation of a legal action.

The FRCP dictates that service of process may be accomplished by delivering a summons and complaint to an individual defendant personally or by leaving at the individual’s dwelling with a resident of suitable age.

Where a defendant no longer resides at the address where the complaint was served, then the service of process is insufficent.

Question 54

Choice of law - contracts

Answer 54

Contracting parties generally have the freedom to contract which means that where there was an express choice of governing law, it will be followed by the court.

This is the case unless there is no reasonable basis for the parties choice or the outcome is contrary to a fundamental public policy.

Question 55

Domestic Relations Exception - Jurisdiction

Answer 55

Under the domestic relations exception, federal courts will decline to exercise jurisdiction over domestic relations issues that involve issuance of a divorce, alimony or child custody decree.

Domestic issues are reserved for the state

Question 56

Removal procedures

Answer 56

In order to remove a case from state to federal court, the defendant must file a notice of removal in the federal court for the district in which the state action is pending.

The notice must be filed within 30 days of the defendant’s receipt of the complaint.

It must be signed and include a statement for the basis of federal jurisdiction.

The defendant must then serve the notice on all adverse parties and file a notice of removal with the state court.

Question 57

removal - decedent

Answer 57

Where an executor or administrator of an estate is removing the case, that representative is deemed to be a citizen only of the state in which the decedent was a citizen.

removal to federal court is not proper if the defendant is a citizen of the forum state.

Question 58

Default Judgement

Answer 58

A default judgement entered by the court is entitled to preclusive effect so long as the court had subject matter and personal jurisdiction over the original action and the parties

Question 59

General Personal Jurisdiction - Corporations

Answer 59

General personal jurisdiction arises where a defendant corporation is doing business so that they are essentially “at home” in the forum state.

Question 60

Corporate Defendants - Residence

Answer 60

Corporate defendants are deemed to reside in any state where they are subject to Personal Jurisdiction.

Question 61

Service of Complaint - Personal Jurisdiction

Answer 61

Personal service of a complaint and summons while an individual is voluntarily (not present due to court order, duress, or fraud) physically present in a state is sufficient to give the courts personal jurisdiction over the individual.

The exercise of such “transient jurisdiction” based on physical presence alone, is consistent with due process.

Question 62

MTD - personal jurisdiction

Answer 62

A motion to dismiss for lack of personal jurisdiction may be raised in a pre-answer motion or the answer, which ever is first.

Question 63

General Personal Jurisdiction

Answer 63

general personal jurisdiction arises where a defendant corporation is “at home” in the state

Question 64

Stream of Commerce - minimum contacts

Answer 64

Placing an item into the stream of commerce does not create minimum contracts unless the defendant purposelly avails itself or targets the forum state.

Question 66

Attorney duty to answer honestly.

Answer 66

Every pleading, written motion, or other paper (except for discovery requests and responses) must be signed by an attorney, or by a party if the party is unrepresented. Fed. R. Civ. P. 11(a). An attorney’s signature on a pleading “certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances[,]”

(1) [the pleading] is not being presented for an improper purpose . . .;

(2) the . . . legal contentions are warranted by existing law or by a nonfrivolous argument for [changing existing law];

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Question 67

Answer to a complaint must be made in good faith.

Answer 67

The defendants’ answer was a general denial, which is technically allowed under the Federal Rules of Civil Procedure, but only if the party “intends in good faith to deny all the allegations of a [complaint]

Because “there is almost always something in the complaint that, in good faith, should be admitted,” a general denial is likely to be improper in most cases

Question 68

Sanctions for filing improperly

Answer 68

A lawyer who files an inaccurate pleading is not subject to sanctions if the lawyer acted in good faith after making a pre-filing “inquiry” that was “reasonable under the circumstances.” Reasonableness is judged as of the time the pleading was submitted, and depends on “such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar.