Civil Procedure

Question 1

What is required for Supplemental Jurisdiction to apply (allowing for the joinder of a non-federal claim with a federal one)?

Answer 1

Both claims must share a, “Common Nucleus of Operative Fact,” such that a plaintiff would ordinarily be expected to try them in one judicial proceeding.

Question 2

In which order should legal and equitable claims be heard (if joined in one action involving common fact issues)?

Answer 2

Legal claims shall be first heard by the jury, and then the Court will hear equitable claims based on the Jury’s prior findings of fact.

Question 3

How far from the chosen venue must a witness reside before their deposition is allowed to be used in lieu of live testimony?

Answer 3

100 miles

Question 4

State the rule created by the Class Action Fairness Act (CAFA).

Answer 4

(1) If any plaintiff in the class has diverse citizenship with any defendant, (2) if the amount in controversy exceeds $5 mn, and (3) there are at least 100 members in the class, then the case may be removed from state to Federal court by any plaintiff or defendant.

Question 5

What are the valid grounds for relief from a final judgment or order, and what is the statute of limitations on a motion for relief?

Answer 5

Fraud, Misrepresentation, and other misconduct by an adverse party are the grounds, and the motion for relief must be made within 1 year.

Question 6

What must a minority shareholder assert in order to sue a company for enforcement of a right?

Answer 6

(1) They held their shares at the time of the nonenforcement (or received them soon thereafter by operation of law); that (2) the action is not a collusive effort to transfer authority on the court that it otherwise lacked; and (3) that they have already made a demand on the board of directors (and, if required, the shareholders), or can provide a valid reason as to why they have not.

Question 7

Under what conditions may an adverse party compel the disclosure of expert testimony that will not be presented at trial?

Answer 7

Exceptional circumstances under which it is impracticable to obtain facts or opinions by other means, or when a medical report for an exam conducted under FRCP 35 is requested.

Question 8

What is required for a party to be bound by issue preclusion?

Answer 8

(1) a final judgment; (ii) the issue must have been actually litigated and determined; (iii) the issue must have been essential to the judgment; and (iv) the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action.

Question 9

What types of cases are “Excluded” from Federal Diversity Jurisdiction?

Answer 9

1. Divorce
2. Alimony
3. Child Custody
4. Actions to Probate an Estate

Question 10

In a Diversity SMJ case, what are the 5 ‘clearly substantive’ issues that compel a Federal Court to apply State law under the Erie Doctrine

Answer 10

1. Conflict (or choice) of law rules;
2. Elements of a Claim or Defense;
3. Statutes of limitation;
4. Rules for tolling statutes of limitations; and
5. The standard for granting a new trial because the jury’s damages award was excessive or inadequate

Question 11

What is the Erie Doctrine Balancing test for determining ‘substantive’ issues in diversity cases, that are not the 5 ‘clearly substantive’ issues?

Answer 11

1. Outcome Determinative
2. Balance of Interests (between Federal and State)
3. Avoid Forum Shopping

Question 12

What are the four requirements required for a Class Action Lawsuit to commence in Federal Court?

Answer 12

• Numerosity
  -Commonality
  -Typicality
  -Adequate Representative

Question 13

What is the limitation on Supplemental Jurisdiction? What is the exception?

Answer 13

• In a case based on Diversity Jurisdiction, a Plaintiff generally cannot invoke Supplemental jurisdiction.
• Supplemental Jurisdiction may be invoked by a Plaintiff where (1) there are multiple Plaintiffs, and (2) one Plaintiff does not meet the ‘amount in controversy’ requirement.

Question 14

What is required to invoke Supplemental Jurisdiction so a claim that otherwise lacks Subject Matter Jurisdiction may be heard?

Answer 14

• It must have a Common Nucleus of Operative Fact with the claim that successfully got into Federal Court
  (guaranteed if it resulted from the same Transaction or Occurrence).
  -Apply the Limitation on Supplemental Jurisdiction for Diversity Cases

Question 15

List the Waivable Defenses under Rule 12(b)

Answer 15

• Lack of Personal Jurisdiction
• Improper venue
• Improper Process
• Improper Service of Process

Question 16

How long does a Defendant have to file a Rule 12 Answer if the Court denies their initial motion(s) to dismiss?

Answer 16

14 days after notice of denial

Question 17

What are the terms of the Safe Harbor provision to FRCP Rule 11?

Answer 17

• The party requesting sanctions must serve the motion to the violating party without filing it with the Court
• If 21 days pass after giving notice and the served party does not correct the issue, then the motion may be filed with the Court

Question 18

List the 3 varieties of Class Action Lawsuit

Answer 18

1. Prejudice (necessary to avoid harm, no way all plaintiffs can recover otherwise)
2. Injunctive or Declaratory Relief (all members of the class treated alike, seeking equitable relief)
3. Common Question, or Damages ((1) Common questions predominate, (2) Class action is the best solution)).

Question 19

What must a party disclose in Discovery regarding any Expert Witnesses who will be testifying?

Answer 19

• Opinions to be expressed’
• Bases for the opinions
• Facts used to form the opinions
• The Expert Witness’s Qualifications
• How much the Expert Witness is being paid

Question 20

What must one show in order for a court to grant a Preliminary Injunction?

Answer 20

• Irreparable harm if the injunction is not issued
• Movant is likely to win on the merits of the underlying case
• Balance of hardship favors movant
• Injunction is in the Public Interest

Question 21

What must be established for a Federal Clerk to enter a Default Judgment once a Default has been successfully entered?

Answer 21

• The defendant has not ‘appeared’ (makes no response at all)
• The claim itself is for a sum certain in money (liquidated)
• Plaintiff gives an affidavit of the sum owed
• Defendant is neither a minor nor an incompetent

Question 22

How long does the initial Plaintiff have to respond to a Defendant’s Rule 12 Counterclaim?

Answer 22

21 Days, starting at service

Question 23

What is the “Bulge Rule” (lol)?

Answer 23

A non-party to an action being joined is deemed to be under a Federal Court’s Personal Jurisdiction if served within 100 miles of the location the summons was issued

Question 24

What are the 5 “merits” sanctions that a Court may impose on a party sanctioned for failure to comply with valid Discovery orders?

Answer 24

1. Establishment order (establishes a fact as true)
2. Strike pleadings of the disobedient party (as to the claims at issue).
3. Disallow evidence from the disobedient party (as to the claims at issue).
4. Dismiss the Plaintiff’s entire case (if bad faith is shown).
5. Enter a default judgment against the Defendant (if bad faith is shown).

Question 25

What must be established in order for the Court to grant a Motion for Summary Judgment?

Answer 25

• No genuine dispute on a material fact
• Entitled to Judgment as a matter of law

Question 26

Within how many days of a judgment being entered must a party file a notice of appeal with the Federal District Court

Answer 26

30 Days

Question 27

Within how many days must a plaintiff serve a defendant with process once the complaint has been filed?

Answer 27

• 90 Days
• BONUS: May be extended with ‘good cause’

Question 28

How much time does a defendant who wants to remove the case to Federal Court have to make the filing?

Answer 28

Defendant must remove the case within 30 days of being served with process.