Civil Procedure

Question 1

Interlocutory Appeals

Answer 1

Most interlocutory orders, such as the denial of a summary judgment motion, a motion to dismiss, or the granting of a new trial motion, are not immediately appealable, 28 U.S.C. § 1292(a) makes certain equitable orders reviewable immediately as a matter of right, including:

i) An order granting, modifying, refusing, or dissolving an injunction;

ii) An order appointing or refusing to appoint a receiver; and

iii) A decree determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

must be made within 30 days after the entry of the order

interlocutory = made during the progress of a legal action and not final or definitive

Question 2

Standards of Review on Appeal

Answer 2

Question 3

Other way to appeal interlocutory issue

Answer 3

District Court can ask for one.

8 U.S.C. § 1292(b), if a district court certifies in writing
(i) that an order involves a controlling question of law as to which there is substantial ground for difference of opinion, and
(ii) that an immediate appeal from the order may materially advance the ultimate termination of the litigation, then a court of appeals has discretion to permit an appeal to be taken from such order

must be made within 10 days after the entry of the order

Question 4

Collateral Order Doctrine

Answer 4

Court of appeals has discretion to hear and rule on a district court order if it:
“1) conclusively determines the disputed question,
2) resolves an important issue that is completely separate from the merits of the action, and 3) is effectively unreviewable on appeal from a final judgment.”

Question 5

Appeals - General Deadlines

Answer 5

Notice of Appeal Must generally be filed with the district clerk within 30 days after the judgment or order being appealed is entered.

60 days if its U.S., fed agency, fed EE
in an official capacity or sued in an individual capacity for conduct occurring in connection with the duties performed on behalf of US

Question 6

Final Judgment Rule

Answer 6

Federal courts of appeals have jurisdiction over appeals of the
final judgments of the district courts

Final judgment = final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.

Generally, any order or decision that adjudicates less than all claims is revisable before entry of judgment.

HOWEVER, If more than one claim is presented in case, or there are multiple parties, a district court may direct entry of a final judgment as to one or more issues/parties, but only if the court expressly determines that there is no just reason for delay

Question 7

Mandamus Review

Answer 7

Under a writ of mandamus, an appellate court can immediately review an order of a lower court that is an abuse of judicial authority.

Must establish existence of an error of law, that there is no other adequate means of obtaining the desired relief, and right to such relief is clear and indisputable.

Question 8

Appeal of Class Action Certification

Answer 8

A court of appeals has the discretion to permit an appeal from a district court order granting or denying class action certification.

The petition for permission to appeal must be filed with the circuit clerk within 14 days after the order is entered.

appeal does not stay proceedings

Question 9

Abstention

Answer 9

In general, a federal court with SMJ is required to adjudicate the controversy despite the pendency of a similar action in a state court.

A federal court may abstain from hearing a case or stay the matter pending the outcome of the state court action under some circumstances

Question 10

Abstention Doctrines

Answer 10

Pullman - Resolution of a state law issue by the state court would eliminate the need for the federal court to decide a federal constitutional issue,

Burford - avoidance of federal involvement with a complex state regulatory scheme or matter of great importance to the state,

Younger - The state action involves punishment of an individual for criminal activity or for contempt of court, or the imposition of a civil fine, and the federal court is asked to enjoin such activity

Colorado River - Parallel proceedings that go beyond mere waste of judicial resources, such as when there is a federal policy of unitary adjudication of the issue

Question 11

SMJ

Answer 11

Refers to a court’s competence to hear and determine cases of the general class and subject to which the proceedings in question belong

Types (most common):
Federal Question
Diversity
Supplemental

Question 12

Diversity JDX

Answer 12

Requires
Diversity of citizenship and
amount in controversy that exceeds 75k

Diversity is determined at the time the case is filed.

Article III, sec 2

Question 13

Removal jdx

Answer 13

Removal allows the defendant to move a case from state court to federal court if the case could have been brought originally in federal court.

Removal allowed if:
1) The federal court has SMJ;
2) All defendants agree;
3) No defendant is a resident of the forum state (if
removal is based on diversity jurisdiction); AND
4) Removal is sought within 30-days of service of the Summons or receiving the initial pleading (whichever is shorter).

Question 14

More Removal RUles

Answer 14

Removal must be to the district court for the district and division in which the state court action is pending. not just any district in the state

• Removal to the wrong district court is subject to a motion to remand (or transfer to the proper federal court)

If action based solely on Djdx - claim may be removed only if no D is a citizen of the
state in which the action was filed

Question 15

Supplemental Jdx

Answer 15

A district court with jurisdiction over a claim may exercise “supplemental jurisdiction” over additional claims over which the court would not independently have subject matter jurisdiction (usually state law claims against a nondiverse defendant) but that are so related to the original claim that the additional claims form part of the same case or controversy under Article III of the U.S. Constitution.

Test = whether arise from “common nucleus of operative fact” such that all claims should be tried together

Question 16

Supplemental Jdx in Diversity Cases

Answer 16

A compulsory counterclaim may be asserted by a defendant against a plaintiff without satisfying the jurisdictional amount

A compulsory counterclaim is a counterclaim (usually the defendant countersuing the plaintiff) that arises out of the same transaction or occurrence as the original claim filed.

BUT, A permissive counterclaim does not qualify for supplementary jurisdiction and therefore must satisfy the jurisdictional amount and the rule of complete diversity.

Question 17

Judgment as A Matter of Law JMOL

Answer 17

A JMOL (formerly known as a “directed verdict”) may be filed by either party after the
close of the nonmoving party’s evidence OR at the close of all evidence.

Standard court applies:

The motion will be granted if, when viewing the evidence in the light most favorable to
the nonmoving party, the court finds that a reasonable jury would not have a legally
sufficient basis to find for the nonmoving party.

***A JMOL is a prerequisite for the
making of a renewed motion for judgment as a matter of law after the trial.

Question 18

Personal Jdx

Answer 18

In addition to having SMJ , a court must be able to exercise judicial power over the persons or property involved in the cases or controversies before it. This authority is broadly referred to as “personal jurisdiction” and is governed by state statutes regarding jurisdiction and the due process requirements of the U.S. Constitution.

3 types:
(i) in personam jurisdiction, (ii) in rem jurisdiction, and (iii) quasi-in-rem jurisdiction.

. A federal court will analyze PJ as if it were a state ct in the jurisdiction.

Question 19

PJ - in persona,

Answer 19

Power over individual party

Bases for in personam:
1. Voluntary presence and served in state
2. Domiciled
3. Consent - express or implied
-implied might involve voluntarily appearing in the action - filing a c ounterclaim for example (but not just objecting to PJ).

4. Long-arm statute

Question 20

A PJ RULE

Answer 20

In order to exercise pJ over D, the exercise must be authorized by statute and second, the exercise of PJ must be constitutional.

If a State’s long-arm statute authorizes PJ to the extent permitted by the Constitution, the first and second prong merge.

Then, the question is whether the D has sufficient minimum contacts with State B and the exercise of PJ would compl with traditional notions of fair play and substantial justice.

Question 21

Minimum Contacts Test

Answer 21

1. Purposeful availment - —D’s contacts with forum str purposeful and substantial, such that D should reasonably anticipate (foresee) being taken to court there
2. Specific v. General jdx
   -Specific: if COA arises from or relates to D’s contact with the forum, then court has jdx for
   defendant’s specific contact with the forum state

-General: requires that D be domiciled in or have continuous and systematic contacts with the forum state - essentially at home; confers personal JX even when c/a has no
relationship with D’s contacts with the stat

3. Any imputed contacts
   -partnerships, corps, employers
   -agent’s actions may be sufficient

Question 22

Discovery General rule

Answer 22

Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action. Information within the scope of discovery need not be admissible evidence at trial to be discoverable. Instead, the test is whether the information sought is relevant to any party’s claim or defense.

Question 23

What is not discoverable?

Answer 23

In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.

Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

Question 24

Preliminary Injunction

Answer 24

A preliminary injunction preserves the status quo of the parties until a final judgment on the merits can be reached.

By either prohibiting certain behavior or mandating an affirmative act (heavier burden)

Plf Seeking PI must establish:
1. She is likely to suffer irreparable harm if PI not issued

2. she Will suffer greater harm than D if not issued - balancing
3. She is likely to succeed on the merits
4. Injunction in best interest of public/public policy

non-moving party must be given notice and opportunity to oppose at hearing

Additionally, the party seeking the preliminary injunction usually must provide security like it would for a TRO.

Question 25

Permanent Injunction

Answer 25

A permanent injunction is a determination on the merits.

Once issued, it continues until dissolved by the court, but any affected person may move for modification or dissolution. The standard for a permanent injunction is essentially the same as for a preliminary injunction except that the plaintiff must show actual success on the merits.

Question 26

Intervention as of Right

Answer 26

A nonparty has the right to intervene in an action when, upon timely motion,
(1) the nonparty has an interest in the subject matter of the action;

(2) the disposition/outcome of the action may impair the nonparty’s interests; and

(3) the nonparty’s interest is not adequately represented by existing parties. (think divergence of interest)

The burden is on the party seeking to intervene.

Question 27

Temporary Restraining Order Generally

Answer 27

Emergency remedy. A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction.

A TRO has immediate effect and lasts no longer than 14 days unless good cause exists.

Question 28

TRO Requirements

Answer 28

A TRO can be issued without notice to the adverse party if the moving party can show

(1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments AND

(2) the moving party certifies in writing any efforts made to give notice to the non-moving party and the reasons why it should not be required.

Additionally, the party seeking a TRO usually must give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully restrained.

Question 29

When are expert reports not discoverable?

Answer 29

If expert is retained in anticipation of litigation and is NOT expected to testify. Then discovery is permitted only on a showing of exceptional circumstances.

*if expert is NOT retained in anticipation, it is discoverable.

Question 30

Duty to Preserve potentially relevant info

Answer 30

When litigation is reasonably anticipated, even if it has not yet commenced, potential litigants in possession of potentially relevant evidence have a duty to preserve such evidence. Once a duty to preserve evidence is triggered, the party in possession of the evidence must take reasonable measures to preserve it

Party must take affirmative acts to prevent its destruction espeically with ESI

Question 31

Sanctions for spoliation

Answer 31

A party may be subject to sanctions for failing to take reasonable steps to preserve evidence that should have been preserved in the anticipation or conduct of litigation.

Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery. In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.

When retrieval of info is possible - court may order it and assign the costs to the party who destroyed the evidence; no further sanctions may be imposed.

If party acted w/purpose of depriving the other side of of the evidence in litigation, then available sanctions include (i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party; (ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or (iii) an entry of a default judgment against the party.

NOTE: If the info destroyed would npt prejudice the other party/not that important, may not get sanctions

Question 32

Two-Dismissal Rule

Answer 32

Most voluntarily dismissals are without prejudice, thereby allowing the plaintiff to sue the defendant on the same claim in the future. However, a voluntary dismissal is with prejudice and operates as an adjudication on the merits when specified in a court order, notice, or stipulation of dismissal OR

the two-dismissal rule applies. This rule applies when the plaintiff:

1. voluntarily dismissed the first action in federal or state court without a court order

and

2. voluntarily dismissed the second action based on the same claim in federal court by filing a notice of dismissal.

Question 33

Voluntary Dismissal w/o court order

Answer 33

Federal Rule of Civil Procedure 41 allows a plaintiff to voluntarily dismiss a suit for any reason. A voluntary dismissal without a court order is permitted when

(1) the parties signed a stipulation of dismissal or

(2) the plaintiff unilaterally filed a notice of dismissal before the defendant served an answer or a summary judgment motion. Therefore, the consumer did not need a court order to dismiss the first or second action since he filed a notice of dismissal before the bank filed an answer or moved for summary judgment

Question 34

Bulge Provision for PJ

Answer 34

​​​​​​​Due process requires that a court have personal jurisdiction over all the parties in a dispute. Federal courts have the same jurisdictional reach as the courts of the state in which they sit.

Additionally, (FRCP) 4(k) provides a special rule—the “100-mile bulge rule”—for federal courts to acquire personal jurisdiction over a party:

1. added to the suit through impleader (ie, third-party practice) or required joinder AND
2. served with processwithin 100 miles of the federal court where the suit is pending—even if the party is served in another state.*

Question 35

Can SMJ be waived??

Answer 35

NO! Can be asserted by party or court at any time during proceedings.

Question 36

Waiver of various defense

Answer 36

Question 37

Legal v. Equitable claims and right to jury trial

Answer 37

The Seventh Amendment guarantees the right to a jury trial in civil cases where the amount in controversy exceeds 20 dollars. But this right only applies to legal claims (eg, the team’s $10 million counterclaim)—not equitable claims (eg, the city’s permanent injunction claim).

And when, as here, a case involves both legal and equitable claims that share common issues of fact (eg, obligations under the stadium lease), the court must first hold a jury trial on the legal claim The judge must then hold a nonjury trial on the equitable claim, relying on the jury’s findings of fact on the legal claim to do so

Question 38

Motion to strike for insufficient defense

Answer 38

If a pleading contains an insufficient defense, a party must move to strike the defense from the pleading either before responding to the pleading or, if a responsive pleading is not permitted, within 21 days after being served with the pleading.

Question 39

TRO

Answer 39

A temporary restraining order (TRO) may issue without notice to the adverse party if

(i) the moving party can establish, in an affidavit or a verified complaint, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition; and

(ii) the movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.

Question 40

Supplemental Jdx & permissive joinder in diversity case

Answer 40

Although supplemental jurisdiction can exist when a plaintiff seeks to join a diversity action pursuant to the permissive joinder rule, the plaintiff must satisfy the diversity-of-citizenship requirement.

AiC does not need to be met

supplemental = same case or controversy = common nucleus of operative fact

Question 41

Pretrial Disclosures

Answer 41

These must be disclosed at least 30 days before trial**

1. The name, address, and phone number of each witness, separately identifying witnesses expected to testify at trial and those who may be called if the need arises
2. The designation of witnesses whose testimony will be presented by deposition, including a transcript of the pertinent parts of a deposition that was not taken stenographically (ie, by shorthand)
3. All documents and exhibits, separately identifying items expected to be offered as evidence and those that may be offered if the need arises

Question 42

Time to object to pretrial disclosures

Answer 42

Any objections to the use at trial of deposition testimony, documents, or exhibits must be made within 14 days after the disclosures.* An objection not made within this time is waived unless (1) excused by the court for good cause or (2) the objection is based on relevance.

Question 43

After receiving court’s decision on Motion to Dismiss, how long does D have to file answer?`

Answer 43

When a defendant files a pre-answer motion under Rule 12, such as a motion to dismiss for lack of personal jurisdiction, the defendant has 14 days after receiving notice of the court’s decision on this motion to file its answer

Question 44

Deadlines for Answer

Answer 44

A defendant has 21 days after being served with the complaint and summons to serve an answer unless the defendant responds by filing a pre-answer motion under Rule 12.

The answer must also be filed with the court clerk within a reasonable time after service.

Question 45

Impleader

Answer 45

Under Rule 14(a)(1), a defendant alleging that a third person is liable to him for all or part of the plaintiff’s claim against him may implead such a person as a third-party defendant. Such joinder is permissive, not required.

Question 46

Zoning - existing non-conforming use

Answer 46

Generally, a zoning ordinance must make provisions for property with an existing nonconforming use. The right of the person currently entitled to possess the property (in this case, a lessee) can be lost in various ways, including enlargement of the nonconforming use. However, conduct by a business owner that leads to more consumers typically does not constitute an enlargement when the conduct does not involve a physical expansion of the property or the buildings on the property. Acts such as increasing the number of days that the business is open, or modernizing equipment involved in the nonconforming use, usually is not sufficient to constitute an enlargement of the nonconforming use.

Question 47

Motion for Summary Judgment

Answer 47

A motion for summary judgment should be granted if the pleadings, discovery, and disclosure materials on file, and any affidavits show that

1. there is no genuine issue as to any material fact and
2. no reasonable jury could find for the nonmovant —> that the movant is entitled to judgment as a matter of law.

A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party. In ruling on a motion for summary judgment, the court must construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of the nonmoving party.

Question 48

Amending Answer

Answer 48

Generally, the defendant’s answer must state any avoidance or affirmative defense that the defendant has, or that defense is deemed waived. However, the Rules also provide that pleadings can and should be amended by leave of the court when justice so requires. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party.

Question 49

14-Day Deadlines

Answer 49

1. File Answer After Pre-Answer Motion Denied
2. Filed 3rd party complaint w/o leave after original answer served
3. Respond to amended pleading
4. Submit Proposed Discovery plan & initial disclosures after initial conference
5. Demand jury trial after las pleading served

Question 50

21 Day Deadlines

Answer 50

1. Serve pre-answer motion OR answer after service of complant, counterclaim, or cross-claim
2. Amend pleading as a matter of course after pleading was served
3. Hold initial conference before scheduling order is due
4. Serve Reply to Answer

Question 51

28 Day Deadline

Answer 51

1. Renew Motion for Judgment as a Matter of Law
2. Move for a new trial
3. move to alter or amend judgment
4. Move for amended findings after final judgment

Question 52

30 Day Deadline

Answer 52

1. File notice of removal after receipt of initial pleading
2. Move to remand after notice of removal filed
3. Submit Pretrial disclosures before trial
4. Respond to interrogatories, requests for production, and requests for admission
5. Move for Summary Judgment after close of discovery
6. File notice of appeal

Question 54

60 Day Deadlines

Answer 54

1. File Answer or Pre-Answer motion after domestic service waived
2. Serve answer after service of process on U.S. agency or employee

Question 55

90-Day Deadline

Answer 55

1. Serve process after complaint is filed
2. File Answer or pre-answer motion after foreign service is waived
3. Disclose Expert Witness materials before trial

Question 56

Additur

Answer 56

No! Additur, which is an increase by the court in the amount of damages awarded by a jury, is not permitted in a federal court action. Such an enhanced verdict violates the Seventh Amendment right to a jury trial.

Question 57

PJ in a Forfeiture action

Answer 57

​​​​​​​Civil forfeiture is an in rem action initiated by the government to seize property used in illegal activity. For in rem actions, minimum contacts almost always exist since these actions relate to property located in the forum state (Choice D). Therefore, the federal court has personal jurisdiction over the individuals’ properties in State B and should deny their motion to dismiss.

Question 58

can P immediately appeal district courts refusal to appoint a receiver?

Answer 58

Although generally a district court order that does not constitute a final order is not immediately appealable, there is a special statutory exception for an order that appoints or refuses to appoint a receiver.

Question 59

Citizenship of unincorporated association - like a union

Answer 59

When an unincorporated association is a party, that party’s citizenship is tested by the citizenship of each of its members.

Question 60

Bulge provision for impleader/3rd party defendant

Answer 60

Under Rule 4(k)(1)(B), a federal court has personal jurisdiction over a third-party defendant, joined under Rule 14, who is served within a U.S. judicial district and not more than 100 miles from the court from where the summons is issued (the federal district court), even if state law would otherwise not permit such service.