Civil Procedure

Question 0

How May a Party Establish Contact With a Jurisdiction?

Answer 0

Parties will be deemed to have contacts with a forum or jurisdiction through either:

Purposeful Availment: party must affirmatively reach out to forum through some conduct. An interactive website may qualify, while passive websites do not.

OR

Foreseeability: suit or damages arising from conduct must be foreseeable.

Question 1

What Are the Two Types of Federal Subject Matter Jurisdiction?

Answer 1

Federal Question (claims require a resolution of federal law)

Diversity (must be citizenship AND amount)

For diversity jurisdiction, courts will usually permit the amount to be satisfied by the plaintiff’s claims, unless there is a legal certainty that the plaintiff cannot recover that amount.

Question 2

What Are the Bases for Personal Jurisdiction?

Answer 2

Jurisdiction must be based on

1) minimum contacts established with the forum;
2) so that exercise of jurisdiction comports with traditional notions of fair play and substantial justice.

If the individual is present in the jurisdiction, exercise if almost always ok.

Question 3

What is Issue Preclusion?

Answer 3

First case must have ended with:

1) a Final judgment on the merits;
2) litigation and determination of the Same issue;
3) the issue was Essential to the judgment; and
4) preclusion is sought against a Party to the first case.

Preclusion may be asserted by a defendant who was not a party to the first case where:

1) the plaintiff had a full and fair opportunity to litigate (defensive issue preclusion), or

By a plaintiff

1) who was Not a Party to the first case where the defendant had a full and fair opportunity to litigate;
2) Multiple suits were foreseeable;
3) the plaintiff could Not have easily Joined the original suit; and
4) there have been No Inconsistent judgments entered on the issue.

Question 4

What is Claim Preclusion (Res Judicata)?

Answer 4

A theory used to dispose of claims that were actually litigated or could have been actually litigated.

A claim cannot be brought if both cases were brought by the same claimant against the same party, the first case ended with a final judgment on the merits, or both asserted the same cause of action or claim.

A Default judgment on the merits or judgment for abuse of discovery qualifies.

CA: lawsuits are considered the same action if the same property right is invaded. (E.g. A car accident creates both a personal injury and a property injury, therefore there are two separate rights that were invaded).

Question 5

What Is Required for Interlocutory Review?

Answer 5

Court of Appeals has discretion to grant review of orders not affecting the ultimate merits of the case. Must be filed within 14 days of the order.

Question 6

What is The Final Judgment Rule?

Answer 6

Parties have the right to appeal only from final decisions of the court on the merits of higher case. Must file within 30 days.

E.g., Denial of motion for remand is not a final order.

CA: A judgment may be final as to one of several parties even though it is not final to other parties, which is not the case in federal court.

Question 7

What Are the Bases for a Motion for a New Trial?

Answer 7

Judgment is entered but circumstances require a new trial. Must be filed within 28 days of judgment.

Most common ground is for a prejudicial order at trial, also for excessive damages or inadequate damages where the figure shocks the conscience.

Remittur: Federal and CA, plaintiff may take lower amount or a new trial;

Additur: CA only (unconstitutional in federal court) defendant may pay more or take a new trial.

Question 8

Motion for Judgment as a Matter of Law

Answer 8

Can be brought after the conclusion of opposing party’s case. Granted if reasonable jurors could not disagree on the result. Viewed in light most favorable to non-moving party. Can also move within 28 days of the verdict.

Question 9

What Are a Plaintiff’s Rights to a Jury Trial?

Answer 9

Plaintiff has a right to a jury trial for issues at law in federal court. Must be demanded no later than 14 days after service of last pleading raising issues triable by jury. Parties receive unlimited strikes for cause and 3 peremptory challenges issued without discriminatory animus.

Question 10

What is the Pre-Trial Conference Order?

Answer 10

A filing stating how the trial will proceed.

This document supersedes the pleadings.

Determines all issues to be tried and evidence to be presented.

Question 11

When May a Plaintiff Voluntary Dismiss Its Own Complaint?

Answer 11

Plaintiff may voluntarily dismiss its claim without prejudice by filing notice of voluntary dismissal before defendant answers. Upon second voluntary dismissal by plaintiff, dismissal is with prejudice, even if first case was filed in state court.

Question 12

What Are the Requirement to Certify A Class Actions?

Answer 12

Numerosity (too many parties for joinder),

Commonality (questions of law and fact must be common to the class),

Typicality (representative plaintiff must have claims and defenses typical to the class),

Adequacy of Representation (representative plaintiff will fairly and adequately represent the interests of the class).

Common questions on damages must predominate over individual questions, and class action must be the superior method for handling the issue.

Question 13

What Is Required For a Party to Exercise Their Right of Intervention?

Answer 13

Absentee may intervene by right if

1) it was not joined;
2) its interest may be harmed; and
3) its interest is not adequately represented.

Question 14

What Is Required for A Party to Exercise its Right to Impleader?

Answer 14

Defendant has a right to implead or include third party defendants for indemnity or contribution within 14 days of serving an answer, otherwise leave is required.

There is no need for diversity among plaintiffs and a third party defendant unless plaintiff has claims against 3rd party defendant. BUT these claims may defeat complete diversity.

Question 15

When is Joinder Feasible?

Answer 15

Joinder is feasible if there is personal jurisdiction over the party and joinder will not defeat diversity. If absentee cannot be joined, the court must proceed or dismiss the case.

In determining whether to dismiss the case or proceed, courts will consider:

1) the availability of alternative forums;
2) the likelihood of harm to the absent party; and
3) whether the court can shape relief to avoid the harm.

Question 16

Who or What is a Necessary Party?

Answer 16

A party is necessary if:

1) the court cannot complete relief among existing parties;
2) absent party’s interest may be harmed if not joined; and
3) the absentee claims an interest that subjects a party to multiple obligations.

A joint tort feasor is not a necessary party.

Question 17

Who or What is a Proper Party?

Answer 17

Parties that

1) may be joined;
2) arise from the same operative facts; and
3) raise at least one common question among the parties.

Question 18

How May A Claim be “Related Back” to a Prior Date?

Answer 18

“Relating back” is the ability to amend a complaint after passing of the Statute of Limitations.

A party may join a new claim to an existing one if it relates to the same operative facts contained in the original complaint.

A party may join a new defendant if:

1) the claim against the new defendant is based on the same operative facts;
2) the defendant knew of the case within 120 days of filing; and
3) the defendant knew that they would have been named but for mistake in the complaint.

Question 19

How May a Plaintiff Amend Its Pleadings?

Answer 19

Plaintiff may amend by right once within 21 days after defendant serves its first rule 12 motion.

Defendant may amend by right once within 21 days of serving answer.

If either party seeks to amend their filings after these dates, courts will look to

1) reason for the delay;
2) prejudice to opposing party; and
3) futility of the amendment.

Plaintiff may move to amend the complaint at trial based on evidence presented at trial about which it could not have reasonably known.

Question 20

What Are the Three Types of Counterclaims?

Answer 20

Compulsory: arise from the same operative facts (transaction or occurrence) and must be filed or are waived.

Permissive: does not arise from same operative facts and may be filed with answer or asserted in separate case.

Cross-claim: claim against a co-party, always permissive.

Question 21

When Must A Defendant File Its Answer?

Answer 21

Within 21 days of service of process.

If Defendant’s Rule 12 motion is denied, it must serve an answer to the complaint within 14 days of ruling on the motion. The Defendant must admit, deny or waive each asserted fact.

Failure to deny an asserted fact constitutes an admission except on issues of damages.

Rule 12 Defenses are lack of Subject Matter Jurisdiction; Personal Jurisdiction; Insufficient Service of Process; Failure to Join an Indispensable Party; Failure to State a Claim; Improper Venue.

Question 22

When Must A Defendant File Its Defenses Under Fed R. Civ. Proc. 12?

Answer 22

Defenses based on lack of personal jurisdiction, as well as improper venue and insufficient service of process must be filed with defendant’s first filing or are waived.

Defenses based on the plaintiff’s pleadings, such as failure to state a claim or failure to join an indispensable party may be asserted any time until the end of trial.

Defenses based on lack of subject matter jurisdiction may be asserted any time, even on appeal.

Question 23

What Are the Requirements of Notice Pleading for a Complaint?

Answer 23

Must contain

1) a statement of grounds for subject matter jurisdiction;
2) a short and plain statement of the claim; and
3) a demand for relief.

The Complainant must allege facts supporting a plausible claim.

Fraud, mistake of fact, and special damages require a heightened standard of pleading whereby the complainant must point to specific facts alleging what the defendant knew and the steps it took to conceal or misrepresent this knowledge.

Question 24

What Are the Requirements of Rule 11?

Answer 24

The filing of a document by an attorney constitutes a certification that to the best of their knowledge and belief after a reasonable inquiry,

1) the filing is not for an improper purpose;
2) the legal contentions are warranted and supportable; and
3) the factual contentions have evidentiary support.

Sanctions are available for deterrence, the party must be given an opportunity to be heard. There is a twenty-one (21) day grace period to fix any problems.

Question 25

Geographic Limitation on Service of Process

Answer 25

Plaintiff may serve process on an individual outside of state only if state law allows it.

CA: Plaintiffs may serve parties to be sued in California out of state.

Question 26

When is a Party Immune from Service?

Answer 26

Service of process is not effective while in a state for the sole purpose of serving as a witness or as a party in another case.

States may enact legislation that provides this sort of immunity.

Question 27

What Are the a California Provisions on Waiver of Service?

Answer 27

Plaintiff may mail a complaint and two copies of a waiver form with stamped, prepaid addressed envelope for return by defendant.

If defendant executes within 30 days, defendant waives the service requirements and may file answer within 60 days.

If the defendant doesn’t waive, the plaintiff is entitled to reimbursement of the cost of service and Defendant must answer within 21 days.

Question 28

How Is Service of Process Acheived?

Answer 28

Delivery to defendant of summons and a complaint within 120 days of filing. Failure results in dismissal without prejudice.

Service ok if:

1) Given to defendant personally;
2) Left at defendant’s usual abode or residence or with an individual of suitable age and discretion;
3) Agent if receiving service is within the scope of her employment; or
4) Any other method permitted by the state.

Question 29

What is the Doctrine of Forum Non Conveniens?

Answer 29

Permits the dismissal or stay of a case where venue transfer is impossible because there is a more convenient court is in a different judicial system.

In determining whether to grant the motion, courts will balance:

1) the applicable law in both forums;
2) the interest of the local community in resolving the controversy;
3) the burden of jury service;
4) the location of witnesses and evidence;
5) and the adequacy of the the remedy in the alternative forum.

Requires very strong showing.

Question 30

Where is Venue Proper?

Answer 30

Venue is proper where all defendants reside or where a substantial part of the claim arose.

Venue is also proper in any district of a defendant’s domicile if all defendants reside in the same state.

A court may transfer to a case to another district where it could have been brought if such transfer is in the interests of justice.

Courts will balance:
1) applicable law in each venue;

2) interest of local community in the controversy;
3) the burden of jury service; and
4) the location of witnesses and evidence.

Question 31

What is the “Erie” Doctrine?

Answer 31

In a diversity case, a federal court will apply state substantive law and federal procedural law.

If federal procedural law is on point and in conflict with state procedural law, the federal rules will be applied.

If no federal procedural law is directly on point, state procedural law will apply to the statute of limitations, tolling, and conflict of laws.

If no federal procedural law is on point and it is unclear whether the rule in question is substantive or procedural, courts will balance

1) federal and state interest in application of the law;
2) whether application of the state law would determine the outcome of the case (if state law is outcome determinative, courts apply state law); and
3) the interest in preventing forum shopping (if ignoring the state law will result in forum shopping in favor of federal court, courts apply state law).

Question 32

When May a Defendant Remove a Case Against It?

Answer 32

Defendant sued in state court can remove to federal court within 30 days after service if the claim could have originally been filed in federal court.

A Defendant cannot remove based on diversity after one year, or if any defendant is a citizen of the forum state.

(Only non-resident defendants may remove based on diversity jurisdiction).

Question 33

When May Courts Exercise Supplemental Jurisdiction?

Answer 33

Supplemental jurisdiction is permitted if

1) the supplemental claim shares a “common nucleus of operative fact;” and
2) arises from the “same transaction or occurrence” with the claim that triggered subject matter jurisdiction.

Supplemental jurisdiction may be used to meet diversity jurisdiction’s amount in controversy requirement, but a plaintiff may not use supplemental jurisdiction to overcome a lack of party diversity.

Defendants, however, may use supplemental jurisdiction to add parties to create diversity for a motion to remove.

A federal court has discretion not to hear the supplemental claim if the federal question is dismissed early in the proceedings, or if the state law claim is complex or state issues of law would predominate.

Question 34

What Are the Requirements to Allege Federal Subject Matter Jurisdiction Through a Well-Pleaded Complaint?

Answer 34

Plaintiff’s claim must arise under federal law on the basis of a well-pleaded complaint.

The complaint must be susceptible of a reading which makes it clear that the plaintiff is enforcing a federally created right.

The possibility of a defendant raising a federal defense is not enough.

Question 35

What Are the Two Types of Minimum Contacts?

Answer 35

A party’s continuous and systematic contact with the forum will supply the basis for general personal jurisdiction.

A party’s contact with a forum that gives rise to a claim against it will supply the basis for specific personal jurisdiction.

Question 36

When Will a Court a Find that Jurisdiction Comports with “Traditional Notions of Fairness and Substantial Justice?”

Answer 36

Courts will balance:

1) convenience to defendant;
2) the state’s interest in providing a forum for its citizens; and
3) the plaintiff’s interest in litigating its claim.

Jurisdiction is generally acceptable unless the defendant is at a severe disadvantage, although the relative wealth of the parties is not determinative.

Question 37

Name the Eight Specifics of Diversity Jurisdiction

Answer 37

1) Case must be between citizens of different states or of a foreign country, and is determined on the basis of a party’s domicile.
2) Corporations are citizens of the forum of their principal place of business and their place of incorporation.
3) Unincorporated associations are citizens of anywhere their members are located.
4) Decedents, minors and incompetents are citizens of their own domicile, not their representatives.
5) Complete diversity means that no plaintiff can be a citizen of the same state as any defendant.
6) Amount in controversy must exceed $75,000 measured at the time the case is filed based on a good faith basis for the claim.
7) Aggregation allows unrelated claims against the defendant to be counted towards the amount in controversy requirement. If Defendants are jointly liable, any number of them may be aggregated.
8) Equitable relief will satisfy the amount in controversy requirement if the plaintiff suffered more than $75,000 in damages or if the defendant would be forced to spend more than $75,000 to comply with a court’s order.

Question 38

Where is a Corporation Domiciled?

Answer 38

At both its place of incorporation and its “nerve center” or principal place of business.

Question 39

What is the Collateral Order Doctrine?

Answer 39

An Exception to Final Judgment Rule.

Where a decision of district court is:

1) collateral to the merits;
2) involves an important issue of law that has been finally and fully decided; and
3) the party appealing would be effectively precluded from achieving review of the decision absent an immediate appeal,

That party may appeal a non-final order.

Question 40

What is a Cross Claim?

Answer 40

An offensive claim against a co-party. The claim must arise from the same transaction or occurrence as the underlying action.

Cross claims are not compulsory.