Civil Procedure

Question 1

When does a federal court have Subject Matter Jurisdiction?

Answer 1

If:
a) Federal Question jurisdiction exists;
b) Diversity of Citizenship among the parties; OR
c) Supplemental jurisdiction is present.

*Subject matter jurisdiction is NOT waived if a party fails to raise it at trial.

Priority: HIGH

Question 2

When does Federal Question Jurisdiction exist?

Answer 2

When a Complaint alleges a claim that arises under:
a) Federal law;
b) The U.S. Constitution; OR
c) United States treaties.

*The plaintiff MUST be enforcing a federal right and the federal
question of law must be present on the face of the Complaint.

Priority: HIGH

Question 3

When does Diversity of Citizenship Jurisdiction exist?

Answer 3

When:
1) There is complete diversity of citizenship between all
plaintiffs and defendants; AND
2) The amount in controversy exceeds $75,000.
*Jurisdiction DOES NOT exist for cases among aliens, unless U.S. citizens are present on both sides of the action.

Priority: HIGH

Question 4

What is the amount in controversy based on?

Answer 4

It is based on the damages alleged in good faith in the Complaint, unless it is legally certain that the plaintiff cannot recover the specified amount.

*A claim for injunctive relief is valued by either the benefit to the plaintiff OR the cost of compliance for the defendant.

Priority: HIGH

Question 5

When does Large Class Action Diversity Jurisdiction exist?

Answer 5

When:
1) The amount in controversy exceeds $5 million;
2) There are at least 100 class members; AND
3) Minimal diversity is present – if any member of the plaintiff class is a citizen of a State different from any defendant.

Priority: Low

Question 6

What are the limits on Large Class Action Diversity Jurisdiction?

Answer 6

Limitations:
The court MAY decline to exercise jurisdiction when non-diverse members are greater than 1/3 and less than 2/3 of the total class.

The court MUST decline to exercise jurisdiction when non-diverse members are greater than 2/3 of the total class.

Priority: Low

Question 7

When may a federal court exercise Supplemental Jurisdiction over additional state court claims?

Answer 7

When they arise from the same “case or controversy.”

Generally, such claims must arise from a common nucleus of operative fact.

Priority: HIGH

Question 8

How is Supplemental Jurisdiction limited?

Answer 8

1) It CANNOT be used to overcome a lack of diversity.
2) it CANNOT be asserted if it would violate complete diversity
3) it DOES NOT apply to claims by the original plaintiff against a third party defendant

4) The court may decline to exercise it when:
a. The claim raises a novel/complex issue of law;
b. The claim substantially predominates over the claim(s) which the court has SMJ;
c. The federal District Court has dismissed all claims that had SMJ; OR
d. In exceptional circumstances.

Priority: HIGH

Question 9

Under the Domestic Relations Exception, when MUST federal courts decline jurisdiction?

Answer 9

When the case primarily involves domestic relations.

A court should NOT decline jurisdiction when domestic relations issues are ancillary to the case.

Priority: Low

Question 10

When may a defendant remove a case to federal court?

Answer 10

When:
1) The federal court has subject matter jurisdiction;
2) All defendants agree;
3) No defendant is a resident of the forum state; AND
4) Removal is sought within 30 days (of either service of summons or receiving the initial pleading).

*A plaintiff CANNOT remove a case to federal court.

Priority: HIGH

Question 11

What are the traditional bases of Personal Jurisdiction?

Answer 11

a) Domicile;
b) Transient jurisdiction (presence in the state when served);
c) Consent;
d) Waiver.
*The above grounds comport with the Constitutional requirements of due process.

Priority: HIGH

Question 12

How is Personal Jurisdiction exerted over a non- resident defendant of the forum state?

Answer 12

1) The forum state must have a long arm statute; AND
2) The Constitutional requirements of due process must be
met.

*Long-arm analysis requires: (1) the defendant have sufficient minimum contacts with the forum state; (2) so as not to offend traditional notions of fair play and substantial justice. BOTH prongs must be satisfied.

Priority: HIGH

Question 13

What is the Constitutional Long-Arm Analysis?

Answer 13

Long-arm analysis requires:
1) D has sufficient Minimum Contacts with the forum state – either:
a. General Jurisdiction – contacts so substantial that D is essentially at home in the state; OR
b. Specific Jurisdiction – a connection between the forum state and underlying controversy.

2) Not offend traditional notions of Fair Play and Substantial Justice – it must be fair and reasonable for D to be sued in the forum state.

BOTH prongs must be satisfied

Priority: HIGH

Question 14

If the Summons and Complaint is NOT served upon the defendant within 90 days of filing, what must a court do?

Answer 14

Either:
a) Dismiss the action without prejudice against the defendant; OR
b) Order that service be made within a specified time.

*Service may be made by any person who is at least 18 years old and not a party to the action.

Priority: HIGH

Question 15

What are the Due Process Clause requirements for service of process?

Answer 15

It requires that notice:
1) Be reasonably calculated to make the parties aware of the action; AND
2) Give them an opportunity to object.

Priority: HIGH

Question 16

Where is venue proper?

Answer 16

In any district where:
a) Any defendant resides;
b) Where a substantial portion of the claim occurred;
c) Where a substantial part of property is located (if property is the subject of the action); OR
d) If none of the above apply, then venue is proper in any district in which any defendant is subject to the court’s personal jurisdiction.

*Proper venue is determined at the time the suit is filed.

Priority: HIGH

Question 17

If venue was proper when the case was filed, then when MAY the court transfer the case?

Answer 17

If:
1) Needed for the convenience of the parties and witnesses or interests of justice; AND
2) The action could have initially been brought in the receiving court.

*Following a transfer, the new court MUST apply the same substantive law as the original transferor court.

Priority: HIGH

Question 18

What MUST the court do if venue was improper when the case was filed?

Answer 18

The court MUST either:
a) Dismiss the case; OR
b) Transfer the case to a proper court if the interests of justice requires it.

*Following a transfer, the law applied is that of the new transferee court.

Priority: HIGH

Question 19

What law is applied under the Erie Doctrine in federal court?

Answer 19

The court will apply its own federal procedural laws, but MUST apply state substantive law.

(A federal court sitting in diversity MUST apply the forum state’s choice of law rules to determine the applicable state substantive law in the action)

Priority: HIGH

Question 20

When may a Preliminary Injunction be issued?

Answer 20

1) Upon notice to the adverse party; AND
2) If the moving party gives security in an amount the court deems proper.

*The Federal Rules of Civil Procedure allow the court to issue both a restraining injunction or a mandatory injunction.

Priority: Medium

Question 21

What must the moving party show for a Preliminary Injunction to be issued?

Answer 21

1) Likelihood of success on the merits;
2) Likely threat of irreparable harm to the movant;
3) That the harm alleged by the movant outweighs any harm to the non-moving party; AND
4) The injunction is in the public interest.

Priority: Medium

Question 22

What is a Temporary Restraining Order (TRO), and when is it available?

Answer 22

An emergency remedy used to maintain the status quo pending the outcome of a hearing or application.

It is ONLY available when the moving party will suffer immediate and irreparable harm.

Priority: Medium

Question 23

For an ex parte TRO, what must the moving party do?

Answer 23

1) Provide specific facts in a sworn statement showing immediate and irreparable injury, injury, loss, or that damage will result before an adverse party can be heard;
2) Certify in writing any efforts made to give notice to the adverse party and why notice should not be required;
AND
3) Give security in an amount that the court deems proper.

*The United States, its officers, and its agencies are not required to give
security.

Priority: Medium

Question 24

When may a party amend a pleading as of right?
In all other cases?

Answer 24

As of right: Within 21 days after service either of the original pleading OR a responsive pleading/pre-answer motion to the original pleading.

In all other cases: With the opposing party’s written consent OR with leave of the court upon motion.

Priority: Medium

Question 25

When does an amendment to a pleading relate back to the original pleading?

Answer 25

When:
a) The amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence as the original pleading allegations; OR
b) The law that provides the applicable statute of limitations allows the relation back.

Priority: Medium

Question 26

What is a Compulsory Counterclaim?

Answer 26

A claim that:
1) Arises out of the same transaction or occurrence as the opposing party’s claim; AND
2) Doesn’t require adding another party whom the court cannot acquire jurisdiction.

Priority: Medium

Question 27

Under the Same Transaction Occurrence test, what 4 factors do federal courts look at?

Answer 27

1) Whether the issues of fact and law raised by the claims
are largely the same;
2) Whether res judicata would bar a subsequent suit on the counterclaim/cross-claim;
3) Whether substantially the same evidence supports or refutes plaintiff’s claim and defendant’s counterclaim/cross-claim; AND
4) Whether there is any logical relation between the claims.

*These factors apply to both counterclaims AND cross-claims.

Priority: Low

Question 28

When presenting papers to the court, what must a party certify under Rule 11?

Answer 28

That:
1) It is not being presented for any improper purpose;
2) The claims, defenses, and other legal contentions were warranted and non-frivolous;
3) The factual contentions have evidentiary support or will likely have it after further discovery; AND
4) The denials of factual contentions are warranted.

*Sanctions may be issued for failure to comply.

Priority: Medium

Question 29

Under the Federal Rules of Civil Procedure, when may multiple plaintiffs join in one action (Permissive Joinder)?

Answer 29

If:
1) Joint and several relief is asserted by them OR the claim arises out of the same transaction or occurrence;
2) A common question of law or fact to all plaintiffs exist;
AND
3) Subject matter jurisdiction exists for each claim.

*The process is similar for multiple defendants.

Priority: HIGH

Question 30

A party MUST be joined in an action if that party is necessary AND joinder is feasible.
When is a party necessary?

Answer 30

A party is necessary if:
a) The court cannot grant complete relief without the absent party;
b) The absent party has an interest in the action that would be impaired or impeded if that person is not joined; OR
c) The party’s absence would leave an existing party subject to a substantial risk of multiple liability or inconsistent obligations.

Priority: Medium

Question 31

A party MUST be joined in an action if that party is necessary AND joinder is feasible.
When is joinder feasible?

Answer 31

When:
1) Joinder will not remove subject matter jurisdiction; AND
2) The court has personal jurisdiction over the necessary party.

Priority: Medium

Question 32

A court MUST permit Intervention as of Right if the non-party can demonstrate what?

Answer 32

That:
1) The application to intervene is timely;
2) It has an interest in the subject matter of the action;
3) The protection of this interest would be impaired because of the action; AND
4) The non-party’s interest is not adequately represented by existing parties to the litigation.

Priority: Low

Question 33

If intervention as of right is NOT warranted, a court MAY still allow Permissive Intervention when?

Answer 33

If the non-party:
1) Files a timely motion; AND
2) Either:
a. Has a claim or defense that shares a common question of law or fact with the main action; OR
b. Is given a conditional right to intervene by a federal statute.

*Courts will consider if the intervention will unduly delay or prejudice the adjudication of the original party’s rights.

Priority: Low

Question 34

Class Actions

When can one or more members sue on behalf of an entire class?

Answer 34

1) The class is so numerous that joinder of all members is impracticable (numerosity);
2) There are questions of law or fact in common to the class (commonality);
3) The claims or defenses of the representative parties are typical of the claims/defenses of the class (typicality);
AND
4) The representative parties will fairly and adequately protect the interests of the class (adequacy of representation).

Priority: Medium

Question 35

Class Actions

Once the class action requirements are met, the class will be certified when?

Answer 35

If:
a) Separate actions would create a risk of inconsistent adjudications or harm the interest of other members;
b) The party opposing the class has acted/refused to act on grounds that apply to the class and the grounds of relief would be appropriate to the class as a whole; OR
c) Common questions of law/fact to the class predominate over questions affecting individual members and a class action is superior to other methods of adjudication.

Priority: Medium

Question 36

A party is permitted to conduct a deposition of any person/party so long as it’s what?

Answer 36

1) Limited to one day of no more than 7 hours; AND
2) Proper notice is given.

*No subpoena is required to depose an opposing party.

Priority: Low

Question 37

During discovery, what type of non-privileged information may a party obtain?

Answer 37

Information that is:
1) Relevant to any party’s claim or defense; AND
2) Proportional to the needs of the case.

Priority: Low

Question 38

Under Rule 37(e), when may a party be sanctioned for failing to preserve ESI?

Answer 38

When:
1) The ESI should have been preserved in anticipation of litigation;
2) The party failed to take reasonable steps to preserve it;
AND
3) It cannot be restored or replaced through additional discovery.

Priority: Low

Question 39

Under Rule 26(g), when signing any discovery document (besides disclosure) what must a party certify?

Answer 39

That it is:
1) Consistent with the Federal Rules of Civil Procedure and is non-frivolous;
2) Not being presented for any improper purpose; AND
3) Not unreasonable, unduly burdensome, or expensive considering the case, issues at stake, and prior discovery.

Priority: Low

Question 40

What must be disclosed in the Rule 26(a) Initial Disclosure?

Answer 40

1) Contact information of individuals likely to have discoverable information and what the info may be;
2) A copy or description of all documents, ESI, and items a party may use to support its claims or defenses;
3) Computation of each category of damages claimed by the disclosing party; AND
4) Any insurance agreements that may be liable to satisfy a possible judgment in the action.

*The disclosures MUST be made within 14 days of the rule 26(f) conference.

Priority: Low

Question 41

What does the Attorney Work Product doctrine protect?

Answer 41

All materials prepared by an attorney or his agents in anticipation of or during a litigation. They are protected from disclosure unless:

1) A substantial need for the materials exist; AND
2) A substantial equivalent cannot be obtained without undue hardship.

Priority: Medium

Question 42

When may a court issue sanctions with respect to Pretrial Conferences?

Answer 42

If a party or attorney:
a) Fails to appear;
b) Is substantially unprepared to participate;
c) Does not participate in good faith; OR
d) Fails to obey a scheduling or other pretrial order.

Priority: Medium

Question 43

What is the standard on a Motion to Dismiss?

Answer 43

The court must:

1) Consider the facts in the light most favorable to the non- moving party; AND

2) Determine whether there is any basis upon which relief can be granted for the non-moving party.

*The court DOES NOT evaluate the merits of the case.

Priority: HIGH

Question 44

What are the Motion to Dismiss grounds?

Answer 44

1) Lack of subject matter jurisdiction;
2) Lack of personal jurisdiction;
3) Improper venue;
4) Insufficient process;
5) Insufficient service of process;
6) Failure to state a claim upon which relief can be granted;
7) Failure to join a necessary party.

*Grounds 2-5 are deemed waived if not raised in the first responsive pleading or Motion to Dismiss.

Priority: HIGH

Question 45

When will a court grant a Motion for Summary Judgment?

Answer 45

When:
1) There is no genuine issue of material fact; AND
2) The movant is entitled to judgment as a matter of law.

*When reviewing the motion, the court MUST view the evidence in the light most favorable to the non-moving party.

Priority: HIGH

Question 46

When will a motion for Judgment as a Matter of Law (JMOL) be granted?

Answer 46

It will be granted if:
1) The non-moving party has been fully heard on an issue during a jury trial; AND
2) The court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on the issue.

Priority: Medium

Question 47

What are the reasons a court may grant a Motion for a New Trial?

Answer 47

a) An error at trial makes the judgment unfair;
b) New evidence surfaced that could not have been obtained (with due diligence) at the original trial;
c) Prejudicial misconduct of a party/attorney/juror/third- party;
d) The judgment was against the weight of evidence; OR
e) The verdict was excessive or inadequate.

Priority: Low

Question 48

When will a Default Judgment have a preclusive effect?

Answer 48

When the rendering court has jurisdiction over:
1) the claims; AND
2) the parties to the action.

*Court needs both subject matter and personal jurisdiction.

Priority: Low

Question 49

What are the elements of Claim Preclusion (a.k.a. res judicata)?

Answer 49

1) The parties are identical or in privity;
2) The judgment in the prior action was rendered by a court of competent jurisdiction;
3) The prior action was concluded by a final judgment on the merits; AND
4) The same claim was involved in both actions.

Priority: Medium

Question 50

In which situations has the Supreme Court found sufficient privity?

Answer 50

When:
1) A party who agrees to be bound by the action.
2) A substantive legal relationship between two parties.
3) A party that was adequately represented in a class action or by trustee, guardian, or fiduciary.
4) The party assumed control over the first action.
5) A party seeking to re-litigate through a proxy.
6) When a special statutory scheme expressly forecloses successive litigation by non-parties.

Priority: Medium

Question 51

When may Issue Preclusion (collateral estoppel) be invoked?

Answer 51

When:
1) A valid and final judgment was rendered in the first action;
2) The issue is identical to the issue decided in the prior action;
3) The issue was actually litigated, determined, and essential in the prior action; AND
4) The party against whom enforcement is sought had a full and fair opportunity to litigate the issue in the first action.

Priority: Medium

Question 52

What is a Final Judgment?

Answer 52

One which ends litigation on the merits (all claims are resolved) and leaves nothing for the rendering court to do but execute the judgment.

(Appeal is thereby precluded from any decision that adjudicates some but not all claims in the action.)

Priority: HIGH

Question 53

What are the exceptions to the Final Judgment Rule?

Answer 53

1) Rule 54(b) Exception.
2) Statutory Exceptions.
3) Certified Appeal Exception.
4) Collateral Order Doctrine.
5) Writs of Mandamus and Prohibition.
6) Pendent Appellate jurisdiction.
7) Certification of Class Action.

Priority: HIGH

Question 54

What are the exceptions to the Final Judgment Rule?

Answer 54

1) Rule 54(b) Exception.
2) Statutory Exceptions.
3) Certified Appeal Exception.
4) Collateral Order Doctrine.
5) Writs of Mandamus and Prohibition.
6) Pendent Appellate jurisdiction.
7) Certification of Class Action.

Priority: HIGH

Question 55

Under the Rule 54(b) exception, when is an appeal allowed?

Answer 55

When:
1) The action has multiple parties or multiple claims;
2) The court directs entry of a final judgment for some of the claims or parties; AND
3) The court expressly determines that there is no just reason for delay.

*If the above elements are NOT met, then the appeal must wait until after a final judgment for the entire case.

Priority: HIGH