Civil Procedure

Question 1

Personal jurisdiction

Answer 1

pertains to the state’s jurisdiction over the parties - specifically the defendant ; requires a statutory & constitutional analysis

Question 2

Statutory analysis of PJ

Answer 2

state must have a statute (long arm statute) that allows it to exercise jurisdiction over the defendant

Question 3

constitutional analysis of PJ

Answer 3

(1) contact (2) relatedness (3) fairness

Question 4

contact

Answer 4

minimum contact (voluntary contact) and foreseeability

Question 5

relatedness

Answer 5

defendant’s contact w/ state is related to injury/harm caused to plaintiff

Question 6

fairness

Answer 6

only pertains to specific jurisdiction

Question 7

general PJ

Answer 7

individual: place of domicile
corporation: incorporation substantial place of business

Question 8

Diversity requirement

Answer 8

(1) place of domicile not shared by any plaintiff and defendant (2) amount in controversy exceeds $75,000, based on good faith

Question 9

aggregation rules

Answer 9

single plaintiff can aggregate all claims against single defendant, or multiple defendants if are join-tortfeasors, to meet AIC ; 2 plaintiffs cannot aggregate their separate claims to meet AIC against a defendant

Question 10

Counterclaims and diversity-AIC requirement

Answer 10

compulsory counterclaims are not required to meet AIC (supplemental jurisdiction); permissive counterclaims required to meet AIC

Question 11

subject matter jurisdiction

Answer 11

federal court has limited jurisdiction: diversity, federal question, supplemental, or removal

Question 12

Compulsory counterclaim

Answer 12

a counterclaim that must be brought by the defendant in a case because it arises out of the STO as plaintiff’s claim; does not need to meet diversity-AIC

Question 13

permissive counterclaim

Answer 13

a counterclaim that may be brought by defendant that doesnt pertain to plaintiff’s claim; must meet its own SMJ requirements

Question 14

federal question jurisdiction

Answer 14

plaintiff’s complaint must assert an injury due to violation of federal law

Question 15

removal

Answer 15

defendant may remove case from state court to federal court if (1) fed court has SMJ (2) all def. agree. (3) no def. live in forum state (if case is diversity only) (4) sought within 30 days of receiving summons or initial pleadings

Question 16

Removal procedure

Answer 16

(1) file motion to remove in federal court (2) within 30 days from service of summons or receiving initial pleadings (3) provide notice of removal to all parties and state court

Question 17

Removal venue

Answer 17

defendant must remove to federal court that sits in state where the case is currently pending, even if venue would have been improper

Question 18

supplemental jurisdiction

Answer 18

court may assert supplemental jurisdiction over claim that does not meet SMJ if it arises out of the common nucleus of operative facts as the claim that got case into federal court ; plaintiff in a sole diversity case (does not apply to federal question claim) cannot assert supplemental jurisdiction to get additional claims

Question 19

erie doctrine

Answer 19

considers whether federal court should apply state law or federal law in diversity cases

Question 20

erie doctrine analysis

Answer 20

(1) is there federal law on point (2) is issue substantive or procedural (3) apply various tests to determine

Question 21

Definite substantive issues

Answer 21

(1) choice of law (2) elements of claim/defense (3) statutes of limitations/tolling of SOL (4) statute of frauds (5) irrebuttable presumptions (6) preclusion law

Question 22

definite procedural issues

Answer 22

(1) civil procedure rules (2) burden of proof (3) rebuttable presumptions

Question 23

Tests to apply when substantive/procedural issue is not clear in Erie

Answer 23

Outcome determinative: issue is substantive if it affects outcome of the case
Balance of Interest: court weighs whether state or fed. system has greater interest in having rule applied
avoid forum shopping: follow state law if failing to do so would cause subsequent litigants to flock to federal courts

Question 24

Venue

Answer 24

Residential venue: where all defendants reside
transactional venue: where substantial part of claim arose

Question 25

forum non conveniens

Answer 25

proper court will dismiss a case because another court outside of its judicial system is more appropriate

Question 26

transfer of venue from a proper transferor

Answer 26

in a diversity case, the law applied would be law of transferor state; considers (1) public factors such as what community should be burdened with jury service, desire to keep a local controversy local AND (2) private factors such as convenience, where are defendants and evidence located

Question 27

transfer of venue from a proper transferor with forum selection clause

Answer 27

will enforce forum selection clause; only public interest is considered

Question 28

transfer of venue from an improper transferor

Answer 28

Transferee's state law applies

Question 29

klaxon doctrine

Answer 29

When federal court sits in diversity, the law of the state in which it sits is applied

Question 30

component of complaint

Answer 30

(1) SMJ statement (2) short and plain statement of the claim showing plaintiff is entitled to relief (3) demand for relief sought

Question 31

Defendant's response to complaint

Answer 31

respond by motion or answer within 21 days of service of process or 60 days if waived service

Question 32

Waivable defenses if not plead in first response

Answer 32

3 P's and 1 V: lack of PJ, improper process, improper service of process, and improper venue

Question 33

defendant's act after denial of rule 12 motion to dismiss

Answer 33

serve answer withint 14 days of notice of denial

Question 34

Amend pleadings - plaintiff

Answer 34

plaintiff has a right to amend complaint ONCE no later than 21 days after serves Rule 12 response; after right to amend expires = must seek leave of court or get written consent from defendant

Question 35

amend pleadings - defendant

Answer 35

defendant has a right to amend answer no later than 21 days of serving it; can include waivable defenses in amendment; after right to amend expires, must get plaintiff consent

Question 36

Amending to join a claim after statute of limitations has run

Answer 36

amendment will RELATE BACK if it concern conduct, transaction, or occurrence as original pleading

Question 37

amending to change defendant after statute of limitations has run

Answer 37

amendment concerns STO as original; def. had knowledge of case; AND def. knew or should have known but for a mistake they should have been named

Question 38

Rule 11 Signature Requirements

Answer 38

attorney certifies after reasonable inquiry (1) paper is not for an improper purpose (2) contentions are warranted and nonfrivolous (3) have evidentiary support or will after discovery