Civil Procedure

Question 1

Personal jurisdiction considerations (3)

Answer 1

(1) contacts; (2) relatedness; (3) fairness

Question 2

Limitations on supp jx in joinder (4)

Answer 2

(1) no defeat of complete div; (2) not by Ps against impleaded parties, compulsorily or permissively joined parties, or intervening parties; (3) by persons who are to be compulsorily joined as Ps; (4) by persons seeking to intervene as Ps.

Question 3

Supplemental Jurisdiction

Answer 3

Must arise from a common nucleus of operative fact as the claim that invoked original federal SMJ.

Question 4

Crossclaim

Answer 4

May be asserted if it arises from the same transaction or occurrence as the underlying dispute.

Question 5

Transfer of venue

Answer 5

If venue is proper, court may transfer for the convenience of the parties or witnesses to any court where it could have originally been filed. Also, all parties may consent to transfer. If original venue is improper, a court may dismiss or, in the interests of justice, transfer the case to a venue in which it could have been brought.

Question 6

Procedure of removal

Answer 6

D seeking removal must file notice of removal in the federal district court in the district and division within which the state action is pending. The notice must include the grounds for removal and be filed within 30 days after receipt of notice of case or an event making the case removable (but not more than one year after filing for diversity cases). A copy of the notice should be sent to the other parties and to the state court.

Question 7

Proper service (4)

Answer 7

(1) personal service
(2) service left at D’s usual place of abode with one of suitable age and discretion residing therein
(3) service upon an authorized agent of the defendant.
(4) as provided by state rules

Question 8

Temporary Restraining Order

Answer 8

If irreparable injury will occur before the hearing on the preliminary injunction can be held, a party may seek a TRO.

Can be imposed without notice (for max of 14 days) if (1) moving party states specific facts in an affidavit or verified complaint of the irreprable injury she will suffer if TRO is not granted (2) moving party certifies in writing the efforts she made to notify adverse party and why notice should not be required; (3) moving party provides security to pay for any damages incurred by adverse party if court later finds she was wrongfully restrained.

Question 9

Changing a party

Answer 9

Amendment naming new adverse party relates back if, within the time for service of process (usually 90 days), new party had sufficient notice of the action to avoid prejudice and knew (or should have known) that, but for a mistake concerning her identity, she would have been named originally.

Question 10

Rule 11 Certification (4)

Answer 10

(1) paper is not presented for improper purpose; (2) legal contentions are warranted by existing law or a nonfrivolous argument for the modification of existing law; (3) allegations and factual contentions have or are likely to have evidentiary support; (4) denials of factual contentions are warranted on evidence or reasonably based on lack of information and belief.

Question 11

Compulsory joinde

Answer 11

Absentee should be joined when (1) complete relief cannot be accorded among the parties otherwise; (2) the absentee has such an interest in the subject matter that a decision in his absence will either impair or impede his ability to protect the interest or leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.

If court has PJ and absentee’s presence would not destroy SMJ, absentee must be joined. If absentee cannot be joined then court must determine if action should proceed, considering (1) extent of prejudice; (2) extent to which such prejudice can be reduced or avoided; (3) adequacy of judgment without absentee; (4) whether party will have adequate remedy if case dismissed for nonjoinder.

Question 12

Permissive joinder

Answer 12

(1) some claim is made by each P and against each D relating to or arising out of the same series of occurrences or transactions; and
(2) there is a question of fact or law common to all the parties.

Question 13

Class action requirements (5)

Answer 13

(1) Numerosity
(2) Questions of law or fact common to class
(3) Typicality
(4) Adequacy
(5) one of: (a) separate actions would create risk of inconsistent results or impair risks of unnamed parties; (b) injunctive or declaratory relief is appropriate; (c) common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication.

Question 14

Interpleader

Answer 14

Suit instituted by stakeholder to require adverse claimants to determine who has valid claim to the stake. Rule 22 follows general SMJ rules. Section 1335 allows for only one claimant to be diverse from one other and $500 to be in issue.

Question 15

Initial disclosures (4)

Answer 15

(1) names, addresses, and telephone numbers of individuals likely to have discoverable information disclosing party may use to support its case
(2) copies or descriptions of docs, ESI, and tangible things in disclosing party’s possession or control that may be used to support its case
(3) computation of damages claimed by disclosing party and copies of materials used for computation
(4) Copies of insurance agreements under which an insurer might be liable for all or part of judgment

Question 16

Disclosure of expert testimony

Answer 16

Parties must generally disclose, at least 90 days before trial, the identities of expert witnesses expected to be used at trial. Generally must include a report prepared and signed by each expert witness stating her qualifications, the opinions to be expressed, and the basis for those opinions.

Question 17

Pretrial disclosures

Answer 17

At least 30 days before trial, party must disclose (1) witnesses expected to be called; (2) witnesses she will call if the need arises; (3) witnesses whose testimony will be presented by depo + transcript; (4) list of documents or exhibits she expects to offer or might offer.

Question 18

Scope of discovery

Answer 18

In general, discovery may be had of any nonprivileged matter that is relevant to any party’s claim or defense and is proportional to the needs of the case.

Question 19

Right to trial by jury

Answer 19

Requires a written demand with the court served on parties. Can be withdrawn only with consent of all parties. Failure to make demand within 14 days after filin gof last pleading directed to jury-triable issues constitutes a waiver.

Question 20

Summary judgment standard

Answer 20

SJ must be granted if, from the pleadings, affidavits, and discovery materials on file, it appears that no genuine dispute of material fact exists and that the moving party is entitled to judgment as a matter of law.

Question 21

Judgment as a matter of law standard

Answer 21

A reasonable jury would not have a legally sufficient basis to find for the nonmoving party. (After verdict: verdict returned could not have been reached by reasonable persons.)

Question 22

Motion to amend prior orders (59e)

Answer 22

Must be filed 28 days after order

(1) new evidence has been discovered that was not previously available
(2) intervening change in controlling law
(3) there is a need to correct a clear error of law or fact
(4) needed to prevent manifest judgment

Question 23

Motion for relief from judgment

Answer 23

(1) mistake, inadvertence, surprise, or excusable neglect
(2) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial
(3) fraud, misrepresentation, or other misconduct of adverse party
(4) judgment is void
(5) any other reason justifying relief

Question 24

Reviewable orders

Answer 24

Generally only final orders are reviewable (determining merits of all claims or dismissing all parties). Final judgment may be entered as to fewer than all of the claims or parties only on express determination that there is no just reason for delay and an entry of judgment.

Question 25

Interlocutory appeals allowed

Answer 25

(1) interlocutory orders as of right (injunctions, receivers, etc.)
(2) Under interlocutory appeals act (trial judge certifies issue is a controlling question of law, substantial ground for difference of opinion, immediate appeal may materially advance ultimate termination of litigaiton + court of appeals agrees to allow)
(3) collateral order rule (claim or issue separable to collateral from main suit and too important to require deferring appellate review)
(4) Certification of class actions

Question 26

Matters of law SoR

Answer 26

de novo

Question 27

Matters of fact Sor

Answer 27

clearly erroneous

Question 28

Mixed questions SoR

Answer 28

de novo

Question 29

Discretionary matters SoR

Answer 29

abuse of discretion

Question 30

Clerk may enter default judgment if (4)

Answer 30

(1) D made no response at all
(2) claim itself is for sum certain
(3) claimant gives affidavit of sum owed AND
(4) D is not a minor or incompetent

Question 31

Claim preclusion (res judicata) (3)

Answer 31

(1) same claimant against same D
(2) Case 1 ended in valid final judgment on merits
(3) Case 1 and case 2 asserted same claim (maj rule: same T/O)

Question 32

Issue preclusion (collateral estoppel)

Answer 32

(1) valid, final judgment on merits
(2) same issue was actually litigated and determined in case 1
(3) issue was essential to judgment
(4) asserted against party in case 1 or party in privity
(5) WHO: same parties –> ok; different D asserting against same P –> OK as long as P had full chance to litigate in case 1; different P asserting against same D –> federal law will allow as long as not unfair.