Civil Procedure

Question 1

Three types of jurisdiction

Answer 1

1. Subject matter jurisdiction: Whether the court has jurisdiction to hear this kind of case?
2. Personal jurisdiction: Whether the court has power over this particular defendant?
3. Venue: Which district/s have proper venue?

Question 2

Subject Matter Jurisdiction

Answer 2

Refers to court’s competence to hear and determine cases of the general class and subject to which proceedings in question belong. 5 most common congressional grants of SMJ are:
1. Federal question jurisdiction
2. Diversity Jurisdiction
3. Supplemental jurisdiction
4. Removal jurisdiction
5. Legislative jurisdiction

Question 3

Federal Question Jurisdiction: Basic Rule

Answer 3

Per Article III, Section 2 of U.S. Constitution: Federal judicial power shall extend to all cases “arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority” (civil actions arising under constitution, laws or treaties of the US)

Question 4

Federal question jurisdiction: Concurrent/exclusive jurisdiction

Answer 4

State and federal courts have concurrent jurisdiction of FQ claims, except when congress expressly provides that the jurisdiction of the federal courts is exclusive.

Question 5

Scope of FQ jurisdiction - when will it apply?

Answer 5

Express: FQ exists if the cause of action is expressly created by federal law and federal law provides the underlying right.

Implied: FQ likely to be found if the right is created by federal law, and the cause of action can be fairly implied and was intended by congress.

Not express/implied: A state-law claim with a federal issue that is (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting federal/state balance intended by congress.

Question 6

FQ jurisdiction: Well-pleaded complaint

Answer 6

FQ jurisdiction only exists where the federal issue is presented on the face of the complaint (i.e. not raised in defenses, answers or counterclaims for the first time)

Question 7

Diversity Jurisdiction

Answer 7

Federal courts have jurisdiction when parties are citizens of different states or citizens of a state and foreign state, and the amount in controversy exceeds $75,000.

Question 8

Federal J for probate and domestic relations (divorce etc)

Answer 8

No federal jurisdiction - cannot be brought in federal court

Question 9

Requirements for diversity jurisdiction

Answer 9

Requirements need to exist at time complaint is filed, not at time COA arose.

1. Complete diversity: Every citizenship represented on P’s side of case must be different from every citizenship on D’s side of case. This is state of domicile.
2. Amount in controversy must exceed $75k exclusive of interest and costs. Does not have to be actual amount awarded, but any good faith allegation that the amount in controversy will exceed this amount will be sufficient.

Question 10

Diversity jurisdiction - when will minimal diversity be sufficient? (Where any P is different in citizenship from any D)

Answer 10

Allowed in:
- Federal interpleader act.
- Class Action fairness act - class action which involves more than 100 members where more than $5 m is at stake.
- Interstate mass torts: Where more than 75 persons have died in a single accident.

Question 11

Diversity - Citizenship of representative parties

Answer 11

Generally what counts is citizenship of representative (also for trustee suing on behalf of the trust). Unless it is representative of a minor, where the domicile of the minor is still what controls

Question 12

Domicile of corporations

Answer 12

Corp is citizen of state(s) or country in which it is incorporated and the state which it has its PPB. Have to count every state where the corp may be a citizen.

Partnership is domiciled in every state in which its members are citizens. Need complete diversity between every one of the partners.

Question 13

Devices which create or defect diversity

Answer 13

• Moving: Person may create or defeat diversity by moving, even if the move is done with the goal of defeating diversity, as long as it is a legitimate move.
• Assignment of the claim to someone out of state: valid as long as assignment is real.

Question 14

Diversity jurisdiction: Aggregating claims to meet $75k requirement

Answer 14

If lots of small claims against the same person, these can be aggregated. A P cannot aggregate claims against different parties or multiple Ds. Look at statute.

Question 15

Removal Jurisdiction

Answer 15

Where a case qualifies for federal court jurisdiction and the P opts to run the case in state court, D can elect to remove the case to federal court. Where there are multiple Ds, all must consent to removal.

Only have 30 days to file notice of removal.

Question 16

Removal jurisdiction and diversity

Answer 16

Removal is only valid where the claim was initially raised in a state where no D is domiciled.

Question 17

Supplemental Jurisdiction

Answer 17

Federal court with SMJ over a matter may hear claims about that case for which the court would not ordinarily have jurisdiction, as long it has jurisdiction over at least one other claim and all claims concern the same basic controversy (arise from same transaction or occurrence)

Question 18

Supplemental jurisdiction over federal questions

Answer 18

Additional claims against the same party can be heard through SJ if common nucleus of operative fact test is met

Question 19

Supplemental jurisdiction and diversity jurisdiction

Answer 19

Lots of carve outs in statute - will be hard to P to take advantage of supplemental jurisdiction if the anchor claim is a diversity J claim. One of only ways is where there is a single D.

Question 20

Does a counterclaim in diversity J have to satisfy the 75k requirement?

Answer 20

Generally no, if the counterclaim is compulsory (it has to be raised in the context of the original claim)

Question 21

3 types of personal jurisdiction

Answer 21

1. In personam
2. In rem
3. Quasi-in-rem

Federal court will adopt the long-arm statute of the state in which it sits.

Question 22

Structure for answering a personal jurisdiction question?

Answer 22

1. Ask whether particular basis for exercising jurisdiction over the D has been exercised by a statute or a rule of court? Every case of PJ has to be one of these.
2. Once you have found statute or rule authorizing jurisdiction, ask if jurisdiction is permitted by due process clause of US constitution?

Question 23

Waiving lack of personal jurisdiction

Answer 23

Objection to lack of PJ can be waived. Has to be raised at first opportunity or will be considered waived - will either be via pre-answer motion to dismiss or the answer, whichever is filed first.

Question 24

In personam

Answer 24

Due process requires minimum contacts between D and forum state, such that it is fair to make D to come to state to adjudicate the claim. Whether D has purposefully concerned themselves with the forum in some way.

Question 25

General vs specific in personam J

Answer 25

General in personam: Means you can assert any claim whatsoever, even if the claim is irrelevant to D’s contact with forum. Requires much more contact with forum. Specific J is where the claim is related to or arises out of D’s contact with forum. Can be valid over pretty minor contact

Question 26

Bases for finding general in personam jurisdiction

Answer 26

1. Physical presence in the state/ service while D is present in the state, unless they are only present because they have been legally summoned, or the presence is procured by force or fraud. 2. Domicile in the state. 3. D can consent to jurisdiction, either expressly or impliedly. 4. Corporations can consent to J, but doing business in the state is insufficient. For corps, will only be sufficient if state of incorporation or PPB

Question 27

Bases for finding specific in personam jurisdiction

Answer 27

P’s claim must arise from or be directly related to D’s contact with forum. Any act or omission in the state that causes injury to people or property in the state, act or omission out of the state causing injury to person or property in the state if person is doing business in teh state, contract to perform services in the state, shipping goods in and out of the state.

Question 28

In rem jurisdiction

Answer 28

Jurisdiction over property or thing. Usually called In res [xx]. Property must be located in the state.

Question 29

Quasi in rem jurisdiction

Answer 29

Determines only the interests of the parties to the action regarding property located in forum state (eg lien foreclosure), and not personally binding against D. If disputes are unrelated to ownership of property and no close relationship is formed, in addition to property being located in forum state, minimum contact must be shown between D and forum state.

Question 30

Requirements and Form of Notice of a Claim

Answer 30

Rule: notice must be reasonably calculated, in all the circumstances, to apprise interested parties of pending action and afford them the opportunity to object. Form: Via in-person delivery, registered main etc, if identity or address known or obtainable through reasonable efforts.

Question 31

Is mail to attorney of record proper service?

Answer 31

Generally no, unless state law specifically permits it.

Question 32

Service to a minor

Answer 32

If you are serving a minor/someone who has been adjudicated incompetent, must serve the minor and the guardian.

Question 33

Service of claims against property

Answer 33

Must make diligent effort to locate all claimants to that property, if they cannot be located with reasonable efforts, then notice by publication is sufficient.

Question 34

Waiver of service

Answer 34

P can notify D that an action has been commenced and ask D to waive formal service of summons. D has 30 days to respond or 60 days if D is outside US. If yes, there is an EOT to file an answer to a complaint.

Question 35

Waiver of objections to venue

Answer 35

Can be waived. Considering P has chosen the court, it is D’s role to object. If it does not object within certain period of time, right is considered to be waived.

Question 36

Establishing proper venue (federal)

Answer 36

1. District in which any D resides, only if all the Ds arise in the same state. 2. Where the claim arose, where “a substantial part of the event or omission to which the claim relates occurs”, or where the property the subject of the claim is located. 3. If these aren’t available, fallback rule is the district where D is subject to personal J.

Question 37

Federal venue vs state venue

Answer 37

Generally, federal venue does not turn on where P lives. State venue (for most states) is county where P lives

Question 38

Proper venue for removal

Answer 38

In case of removal, venue is automatically proper in the district in which state court sits, even if that district would not have otherwise been a proper venue in federal court.

Question 39

Changing Venue

Answer 39

Transfer - shifting the case from one federal district to another. Narrow allowance for case brought in a district with proper venue if all parties consent to it being heard somewhere else, where either: 1. It is more convenient to have trial somewhere else; or 2. For cases brought in wrong district.

Question 40

Choice of law - Erie Doctrine

Answer 40

F

Question 41

Choice of Law - Erie Doctrine

Answer 41

FQ: federal substantive and procedural law controls, as well as federal common law DJ: state substantive law and applicable federal procedural law SJ: state substantive law for state-law claim

Question 42

Choice of law: Where there is a valid federal statute on point when state and federal laws conflict

Answer 42

Apply federal law. But need to decide, does federal rule abridge, enlarge or modify any substantive right? If no, apply federal rule. If yes, apply federal rule if it only incidentally affects a litigant’s substantive rights.

Question 43

Aims of Erie

Answer 43

To avoid forum shopping, and to avoid inequitable distribution of justice

Question 44

What is substantive vs procedural

Answer 44

Substantive = Elements of claim or defense, statute of limitations and burden of proof Procedural = judge/jury allocation, assessment of attorney’s fees, equitable/legal determination

Question 45

Federal Diversity Claim - Erie Doctrine

Answer 45

Substantive law: Court must apply state substantive law. To determine which state’s laws applies, district court must apply conflict of law rules in the state it is located in. Procedure: Applicable federal law, if it is addressed by a valid federal law (statute or Federal rule of Evidence), even if state law is in conflict. If no federal law applies, then court can choose to ignore state court re procedure.

Question 46

Supplemental Jurisdiction - Erie Doctrine

Answer 46

Court must apply substantive law of the state in which the district court is located (same as with diversity actions)

Question 47

Determining applicable state law

Answer 47

First go to law of the highest state court. If there is no precedent on point, try to predict how the highest state court would rule.

Question 48

Three types of pleadings

Answer 48

- Complaint - Answer - Reply

Question 49

What must be contained in complaint?

Answer 49

Needs to include short statement proving SMJ, statement of P’s requested relief and establishing entitlement to relief (notice pleading) Filing generally occurs before service, service generally within 90 days of filing

Question 50

Temporary Restraining Order

Answer 50

Preserves status quo until opportunity for full hearing. Effective only for a limited time (no more than 14 days unless good cause exists or adversary consents) Can be issued without notice to adverse party if immediate and irreparable injury will result in

Question 51

Preliminary Injunction

Answer 51

Issued prior to full hearing on merits, with notice to D. Issued if: - P likely to succeed on merits; - P likely to suffer irreparable harm in absence of relief; - Balance of equities in P’s favor; and - Injunction is in public interest

Question 52

Permanent Injunction

Answer 52

Once issued, continues until dissolved by court, but any impacted person can move for modification or dissolution. Same standard for P as preliminary injunction but must show actual success on merits

Question 53

Things that need to be specifically pleaded in a complaint

Answer 53

1. Fraud or mistake needs to be pleaded with detail. 2. Special damages: Damages that do not ordinarily flow from that kind of wrong need to be pleaded in detail.

Question 54

Conclusory statements in pleadings

Answer 54

Not allowed

Question 55

Motion to dismiss

Answer 55

Can be file in response to complaint and used to raise various claims e.g. lack of SMJ or PJ, lack of venue, or failure to state a claim for which relief can be granted, and failure to join necessary party

Question 56

Motion for Judgment on Pleadings

Answer 56

Filed in response to Complaint where the parties agree on facts and the only issue is an issue of law.

Question 57

Motion for more Definite Statement

Answer 57

Motion to ask that pleadings be made more specific

Question 58

Motion to Strike

Answer 58

Used to ask that scandalous or prejudicial matters not relevant to the case at hand are deleted from pleading, OR by P to strike a legally invalid defense

Question 59

Answer

Answer 59

Response to Complaint. Should respond to allegations, raise affirmative defenses and any counterclaims. Ordinarily has to be served within 21 days of service of the pleading it responds to. IF service of process is waived, answer is due 60 days after service waived. If pretrial motion to dismiss is denied, answer is due 14 days after denial.

Question 60

Federal Common Law: Definition

Answer 60

Created when there is no applicable federal statute or constitutional provision. There is no general federal common law

Question 61

FQ Jurisdiction: When to apply federal common law

Answer 61

- Admirality cases - When U.S. is party to a case - Interstate disputes - cases implicating relations with foreign countries - Cases where goverment acts in proprietary role (enters into contracts, issues commercial paper etc); and - When congress has left a gap in statutory scheme

Question 62

DJ - When to apply federal common law

Answer 62

When "uniquely federal interest" is at stake and a significant conflict exists between that interest and the operation of state law

Question 63

Can you amend a motion?

Answer 63

Not specifically provided for in the Rules, but generally allowed by courts if party acts promptly.

Question 64

Reply

Answer 64

Response by P to D's answer within 21 days after being served with order to repl

Question 65

Amending pleading - General Rule

Answer 65

Party may amend pleading once as a right no later than 21 days after serving if no responsive pleading is reqired, or after being served with an answer or motion to dismiss. Amendments can also be made during or after trial if it conforms to evidnece and opposing party has opportunity to prepare

Question 66

Relating back to previous claim

Answer 66

If new claim: Can relate back to date of original pleading if amendment asserts a claim or defencse arising out of the same conduct/transaction If new party: Relates back to date of original proceeding if amendment asserts claim/defense that arose out of same conduct, transaction etc. New party receives notice of action within 90 days after original complaint filed.

Question 67

Time to respond to amendments

Answer 67

Within 14 days after service of amended pleading or time left on original pleading, whichever is later

Question 68

Rule 11 Sanctions

Answer 68

Courts may impose sanctions limited to what suffices to deter repetition of conduct by others similarly situation (does not apply to mandatory disclosures and discovery requests, responses and objections)

Question 69

Permissive Joinder - Definition

Answer 69

Ps and Ds may join or be joined in one action if any right to relief is asserted jointly, severally or with respect to or arising out of the same transaction, occurrence and question of law or fact common to all Ps or Ds will arise.

Question 70

Requirements for Permissive Joinder

Answer 70

- SMJ: For joinder of Ds, there must be complete diversity between Ps and Ds and each claim must exceed $75k. For joinder of Ps, SJ is permitted for amount less than or equal to 75k but there must still be complete diversity. - Need in personam J over D - Venue: subject to applicable venue requirements

Question 71

Compulsary Joinder

Answer 71

Where joinder is necessary for just adjudication.

Question 72

Requirements for necessary joinder

Answer 72

- SMJ: Need SMJ. Therefore, if only basis for J is diversity jurisdiction, a party cannot be added if it would destroy diversity. - In personam JX - court needs in personam J over D - - Venue: If joined party objects to veue and joinder would make venue improper, court must dismiss that party.

Question 73

What happens when a necessary party cannot be joined via compulsary joinder?

Answer 73

If parties cannot be joined, the court may dismiss the case and will consider the following factors: - Extent to which the judgment without the party would prejudice them or existing parties; - Extent to which protective measures could prevent prejudice; - Whether judgment rendered in necessary party's absence would be adequate; and - Whether P would have adequate remedy if action were dismissed.

Question 74

Intervention as of right

Answer 74

Where a nonparty has an interest in property or in the transaction that is the subject matter of the action, and the disposition of the action could impair the non-party's interest OR the non-party's interest is not adequately represented by existing parties. | (Intervention where it is not through statute)

Question 75

Permissive Intervention

Answer 75

Where the movant has a conditional right to intervene under federal statute; or the movant's claim/defense and original action share a common question of fact. The court has to consider undue delay/prejudice to the rights of the original parties.

Question 76

Timeliness of intervention

Answer 76

In determining whether intervention is timely, the court will consider the following factors: - Length of time movant knew or reasonably should have known that its interest was threatened before moving to intervene. - Prejudice to existing parties if intervention permitted; and - prejudice to movant if intervention is denied.

Question 77

Interpleader - Federal Rule

Answer 77

Allows person holding property to force all potential claimants into a single lawsuit. Court must already have jurisdiction over all parties. For diversity J, stakeholder (person holding property) needs to be diverse from claimants, but claimants do not need to be diverse from themselves. Court needs in personam J over claimants to join them.

Question 78

Federal statutory interpleader - jurisdiction

Answer 78

Diversity J met if any two adverse claimants are citizens of different states, and property at issue must be $500 or more

Question 79

Does failure to file proof of service invalidate service?

Answer 79

No

Question 80

Settlement - Class Actions

Answer 80

A proposed settlement of a federal class action must be approved by the court to be valid. The proposed settlement may be approved only after the court holds a hearing and issues findings that the settlement is fair, reasonable, and adequate.

Question 81

Jury Polling

Answer 81

A court must on a party's request, or may on its own initiative, poll the jurors individually after a verdict is returned but before the jury is discharged. If the poll reveals that the verdict is not unanimous, the court can direct the jury to deliberate further or order a new trial.

Question 82

Preliminary injunction - Granting in federal court

Answer 82

A federal court may grant a preliminary injunction when (1) the movant is likely to succeed on the merits, (2) the movant is likely to suffer irreparable harm in the absence of relief, (3) the balance of equities is in the movant's favor, and (4) the injunction is in the best interests of the public.

Question 83

Demanding a jury trial - Timeline

Answer 83

A party may secure a jury trial on any triable issue by (1) serving the other parties with a written jury trial demand no later than 14 days after the last pleading directed to that issue is served and (2) filing the jury trial demand with the court within a reasonable time after service of the demand.

Question 84

Relation-back doctrine

Answer 84

An amended complaint will "relate back" to the date of the original complaint if (1) the same occurrence is at issue, (2) the new party received notice of the suit within 90 days after the original complaint was filed, and (3) the new party knew or should have known that it would have been sued but for a mistake about its identity.

Question 85

Court clerk - Entering default judgment

Answer 85

A court clerk must enter a default judgment when (1) the plaintiff's claim is for a sum certain or a sum that can be made certain by calculation, (2) the plaintiff's request for default judgment includes an affidavit establishing the amount due, (3) the defendant failed to appear, and (4) the defendant is not legally incompetent or a minor.

Question 86

7th Amendment - Legal vs Equitable

Answer 86

The Seventh Amendment right to a jury trial applies to federal civil cases when the amount in controversy exceeds 20 dollars and a party asserts a legal claim (i.e., a claim seeking a monetary remedy). However, this right does not apply when a party asserts an equitable claim (i.e., a claim seeking a nonmonetary remedy).