Civil Procedure

Question 1

SMJ between alien and US citizen?

Answer 1

yes

Question 2

P sues for exactly $75,000. OK?

Answer 2

NO - must exceed $75,000

Question 3

P sues for $74,000 for breach of contract and, if she wins, also wants to recover her legal “costs” and interest from the date of judgment to the date on which D pays the judgment. These costs and interest will clearly exceed $1,000. Is this OK?

Answer 3

NO

You cannot count interest on the claim. But sometimes you might be suing to recover interest as the claim. P lends D money. D is supposed to pay $80,000 in interest on April 1. D fails to pay. P’s claim is $80,000.

Question 4

Rule for recovering interest

Answer 4

Cannot recover interest on the claim, but can claim interest as the claim

Question 5

Legal Certainty Rule for Amount in Controversy

Answer 5

Whatever the plaintiff claims in good faith is OK unless it is clear to a legal certainty that she cannot recover more than $75,000.

Question 6

Aggregation

Answer 6

Aggregation means adding two or more claims to meet the amount requirement.

We aggregate claims of 1P v 1D

With joint claims, the number of parties is irrelevant.

Question 7

Can we aggregate factually unrelated claims?

Answer 7

Yes

Question 8

Supplemental Jurisdiction

Answer 8

gets non-federal, non-diversity claims into federal
court. But the case itself must already be in federal court (because it invoked diversity of citizenship or FQ).

Question 9

Test for Supplemental Jurisdiction

Answer 9

The claim we want to get into federal court must share a “common nucleus of operative fact” with the claim that invoked federal subject matter jurisdiction.

This is met when the claim arises from the same transaction or occurrence as the underlying case

Question 10

Limitation to Supplemental Jurisdiction

Answer 10

in a diversity case, plaintiff cannot use supplemental jurisdiction to overcome a lack of diversity.

Question 11

Removal

Answer 11

D sued in state court might be able to “remove” the case to federal court.

If removal was improper, the federal court can “remand” the case back to state court.

Question 12

P sues D in state court. D files a counterclaim against P in that case. Can P remove?

Answer 12

No, P can never remove

Question 13

What cases can be removed?

Answer 13

General rule: any case that meets the requirements for diversity or FQ.

Question 14

Exceptions for when a case cannot be removed and what types of cases are these?

Answer 14

These exceptions apply only if we are removing on the basis of diversity of citizenship jurisdiction.

1. No removal if any D is a citizen of the forum (instate D rule) AND
2. No removal more than one year after the case was filed in state court.

Question 15

P sues D in state court. D wants to remove to federal court. Must she get permission from the federal or state courts?

Answer 15

No

Question 16

How do you remove?

Answer 16

• D files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (FQ or diversity).
• In all cases, D attaches all documents that were served on her in state action. She serves a copy of the “notice of removal” on adverse parties. Then she files a copy of the “notice of removal” in state court.
• The federal court will hold a hearing and the burden is on D to show by preponderance of the evidence that the amount does exceed $75,000.

Question 17

If P thinks the case should not have been removed, she can…

Answer 17

Move to remand to State Court

Question 18

If P thinks removal was improper for some reason other than lack of SMJ (e.g., D did not attach relevant papers to her notice of removal), she must move to remand no later than:

Answer 18

30 days after notice of removal was filed

Question 19

If P thinks removal was improper because the federal court lacks SMJ, when can she move to remand to state court?

Answer 19

Anytime

Question 20

Step 1 of Erie Doctrine

Answer 20

STEP 1. Ask: is there some federal law (like federal constitution or statute or FRCP or Federal Rule of Evidence) on point that directly conflicts with state law? If so, apply the federal law, as long as it is valid.

This is based on the Supremacy Clause

Question 21

Step 2 of the Erie Doctrine

Answer 21

STEP 2. If there is no federal law on point, the federal judge must apply state law if the issue to be determined is “substantive.” Four issues are clearly “substantive”:

1. elements of a claim or defense,
2. statute of limitations,
3. rules for tolling statutes of limitations, and
4. conflict (or choice) of law rules.

Question 22

Step 3 of the Erie Doctrine

Answer 22

STEP 3. It there is no federal law on point and the issue is not one of the four just listed, the federal judge must determine whether the issue “substantive.” The law here is very unclear, consisting of some factors that no one knows how to weigh:

1. Outcome determinative:
   
   • would applying or ignoring the state rule affect outcome of case? If so, it’s probably a substantive rule, so should use state law.
2. Balance of interests:
   
   • does either federal or state system have strong interest in having its rule applied?
3. Avoid forum shopping:
   
   • if the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, should probably apply state law.

Question 23

If the original district is a proper venue, that court can order transfer based on…

Answer 23

convenience of parties and witnesses and on the interest of justice.

Question 24

Is there ever a right to transfer?

Answer 24

No, always discretionary

Question 25

What factors does the court look to in deciding whether to transfer the case? and who bears the burden?

Answer 25

Because transfer overrides P’s choice of forum (and because P chose a proper venue), the burden is on the person seeking transfer.

Public and Private factors showing that the transferee is the center of gravity

Question 26

For venue, an alien may be sued in which district?

Answer 26

any

Question 27

Is the deponent required to review all her relevant files and notes before being deposed?

Answer 27

No - you testify from present recollection

Question 28

Can you take the deposition of a party or of a nonparty?

Answer 28

Yes, but you should subpoena to compel attendance

Question 29

Rule to get a party to a deposition?

Answer 29

You don’t need to subpoena a party; just serve notice of deposition.

Question 30

A subpoena “duces tecum”

Answer 30

Requires the deponent to bring requested materials with her

Question 31

Unless a nonparty agrees, what is the farthest she can be required to travel to have her deposition taken?

Answer 31

100 miles from where she resides or is employed

Question 32

Limits on Depositions

Answer 32

• you cannot take more than 10 depositions
• you cannot depose the same person twice without court approval or stipulation.
• Deposition cannot exceed one day of seven hours unless court orders or parties stipulate.

Question 33

Use of depositions at trial (all subject to rules of evidence):

Answer 33

1. Impeach the deponent;
2. any purpose if the deponent is an adverse party;
3. any purpose if the deponent (regardless of whether a party) is unavailable for trial, unless that absence was procured by the party seeking to introduce the evidence.

Question 34

Interrogetories

Answer 34

These are written questions, to be answered in writing under oath.

Question 35

To whom can you send interrogatories?

Answer 35

The parties only

Question 36

How long does the party have in which to respond with her answers or objections of an interrogetory?

Answer 36

30 days from service

Question 37

Can you respond by saying you don’t know the answer to an interrogetory?

Answer 37

You must answer from information reasonably available to you - so you must do some HW here

Question 38

What is the maximum number of interrogatories you can send to a party (unless there is a court order or stipulation for more)?

Answer 38

25

And that includes subparts, so no more than 25 actual questions.

Question 39

Rule for if answers to interrogatories can be found in business records and it would be burdensome to find the answers

Answer 39

If the answers to interrogatories can be found in business records and it would be burdensome to find the answers, the responding party can allow the requesting party to
have access to the records.

Question 40

Use of your own answers to interrogetories at trial

Answer 40

At trial, you cannot use your own answers to interrogatories. Others are OK per rules of evidence.