Civil Procedure

Question 1

Traditional Bases of Personal Jurisdiction

Answer 1

1) Domicile in forum
2) Presence in forum when served
3) Consent
4) In rem

Question 2

Long-arm Statutes

Answer 2

Used to acquire jurisdiction over non-resident D in the absence of traditional bases

If not mentioned, assume it exists and permits exercise of PJ over non-resident D to the furthest extent permitted under the U.S. Constitution

Question 3

Due Process

Answer 3

Any exercise of jurisdiction should be consistent with due process, which requires 1) minimum contacts and 2) compliance with the traditional notions of fair play and substantial justice

Question 4

Minimum Contacts - General Jurisdiction

Answer 4

D’s contacts are systematic and continuous or constant and pervasive as to render D essentially at home in the forum

Cause of action need not be related to the contacts

Question 5

Minimum Contacts - Specific Jurisdiction

Answer 5

1) Purposeful availment of the privileges and benefits of the forum; 2) It was foreseeable to D that he would be haled into the forum court; and 3) The claim or cause of action arose out of D’s contacts with the forum

Question 6

Traditional Notions of Fair Play and Substantial Justice

Answer 6

Trial in the forum isn’t gravely difficult and inconvenient to D; the forum state has an interest in providing redress; and P’s interest in convenient relief

Question 7

Notice & Service of Process - Federal

Answer 7

Any person over 18 not a party to the action may serve

Adequate services is by personal service, service left at D’s usual abode with someone of suitable age and discretion, or per forum state’s rules

Question 8

Subject Matter Jurisdiction - General

Answer 8

Subject matter jurisdiction includes both federal question jurisdiction and diversity jurisdiction

Question 9

Subject Matter Jurisdiction - Raising Lack of SMJ

Answer 9

Can be raised at any time until the case is over (when all appeals are done)

Can be raised after case is over, but if lack of SMJ is due to lack of diversity, likely out of luck

Question 10

Subject Matter Jurisdiction - Federal Question Jurisdiction

Answer 10

The claim or cause of action (but not an anticipated defense) arises under the U.S. Constitution, a federal law, or a treaty as posed by a well-pled complaint

Question 11

Subject Matter Jurisdiction - Diversity Jurisdiction

Answer 11

Requires 1) complete diversity; and 2) an amount in controversy more than $75,000 as set out in a good faith pleading

Question 12

Diversity Jurisdiction - Diversity

Answer 12

Person - residence

Corporation - state of incorporation and PPOB

Question 13

Diversity Jurisdiction - Amount in Controversy

Answer 13

P can aggregate all claims against one D and all claims against jointly and severally liable Ds BUT NOT separate claims against multiple Ds

Multiple Ps can’t aggregate against a single D unless they’re enforcing a single title or right in a common and undivided interest

Complaint and counter-claim amounts cant be aggregated

Question 14

Supplemental Jurisdiction

Answer 14

A federal court has supplemental jurisdiction to hear a state claim if 1) the two claims derive from a common nucleus of operative fact, and 2) P would ordinarily be expected to try them all in one proceeding

Compulsory counterclaims always have supplemental jurisdiction

Question 15

Supplemental Jurisdiction - Ancillary Jurisdiction

Answer 15

Allowed in diversity case if D becomes a 3rd-party P and sues a 3rd-party D, so long as the original P doesn’t become a party to the 3rd-party claim

Question 16

Venue - Federal - Step 1

Answer 16

Venue is proper in the judicial district 1) where any D resides, if all Ds reside in the same state, or 2) where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property involved is situated. If neither apply, then, 3) for diversity actions, venue is proper in any district where any D is subject to PJ at the time the action is commenced, and for non-diversity actions, any district where any D may be found

Question 17

Venue - Federal - Residence

Answer 17

Individual - where domiciled

Corporation - where subject to PJ

Unincorporated association - where it does business

Question 18

Venue - Federal - Step 2

Answer 18

Venue may be transferred to another district where the action might have been brought if appropriate upon balancing the relative conveniences of the parties, witnesses, and evidence

Question 19

Forum non Conveniens

Answer 19

1) Discuss if current and proposed venues are proper
2) Balance the public factors (availability of alternative forum, P’s choice of forum, forum state’s interest) and private factors (convenience to parties and witnesses, location of evidence, where cause of action arose)

Question 20

Erie Doctrine

Answer 20

Only applies in diversity cases

Apply state substantive law and federal procedural law

Elements of a claim or defense, SoL, and choice of law rules are substantive

Question 21

Removal

Answer 21

Requires federal SMJ

Only D can remove (within 30 days of service of the complaint) and all Ds must join in the removal

Can’t remove if any D is a citizen of the forum state

Question 22

Remand

Answer 22

Court must grant the motion if the federal court lacked SMJ in the first place

If the defect isn’t cured before trial, the judgment is vacated

Question 23

Abstention

Answer 23

Federal court will retain jurisdiction over a constitutional challenge to a state law but refrain from deciding the question until the state courts have interpreted the state law

Question 24

Pleading - Federal

Answer 24

A pleading which sets forth a claim for relief shall contain 1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction, 2) a short and plain statement of the claim showing that the pleader is entitled to relief, and 3) a demand for judgment for the relief sought

A complaint must contain facts that, taken as a whole, render P’s entitlement to relief plausible

Question 25

Federal Amendments Relating Back

Answer 25

D may be added and the filing of the amended claim will relate back if 1) the amendment adding the new D arises out of the same conduct, transaction, or occurrences as in the original complaint, and 2) within 120 days after filing the original complaint, the new D received such notice of the action that it wouldn’t have been prejudiced in maintaining a defense and knew or should’ve known that, but for a mistake concerning identity of the party, the action would’ve been brought against it

Question 26

Motion to Strike

Answer 26

Can strike irrelevant, false, or improper matters

Question 27

Compulsory Joinder

Answer 27

I) Joinder is proper if 1) in the person’s absence complete relief can’t be accorded; or 2) the person claims an interest relating to the subject matter that without the person may i) impair or impede the person’s ability to protect the interest or ii) leave any remaining party subject to a substantial risk of incurring multiple or inconsistent obligations

II) Is joinder possible without destroying complete diversity?

III) When a party can’t be joined, the court must determine whether in equity and good conscience the action should be dismissed because the person is indispensable

Question 28

Permissive Joinder

Answer 28

1) The claims arise out of the same transaction or occurrence, and 2) involve common questions of law or fact

Question 29

Impleader

Answer 29

If the impleaded action arises from the same common nucleus of facts as the original claim, a 3rd-party D can be brought in even if P & 3rd-party D aren’t diverse

Diversity required if original P brings a claim against the 3rd-party D

Question 30

Discovery - Federal

Answer 30

Discovery is limited to any non-privileged matter relevant to a claim or defense

Work product is discoverable upon a showing of substantial need and to avoid undue hardship

Question 31

Summary Judgment - Federal

Answer 31

Movant must show 1) there’s no genuine issue of material fact; and 2) movant prevails as a matter of law

Burden is on non-movant to prove that there’s a triable issue of fact

Allowed after 20 days from commencement of action

Question 32

Default Judgment

Answer 32

May be entered by the clerk if the claim is for 1) a sum certain, 2) D failed to appear, and 3) D isn’t an infant or incompetent person

Question 33

Motion for Judgment as a Matter of Law/ Directed Verdict (JMOL)

Answer 33

Motion granted if no reasonable jury could differ as to the outcome

May be made after the close of P’s evidence (if by D) or at the close of all evidence (by P or D)

Question 34

Renewed Motion for Judgment as a Matter of Law/Judgment Notwithstanding the Verdict (JNOV)

Answer 34

Motion granted if no reasonable person could differ as to the outcome

Only permitted if movant properly and timely moved for JMOL in the first place

Question 35

Motion for New Trial

Answer 35

Motion granted if the verdict is against the weight of the evidence

Question 36

Appeals

Answer 36

May be taken by filing notice of appeal with the district court within 30 days from the entry of judgment (if JMOL or JNOV filed, clock runs when those decided)

Sanctions can’t be appealed until the end of trial

Question 37

Jury Trials - Federal

Answer 37

Demand must be served within 14 days of the last pleading that gave a right to a jury

Question 38

Jury Trials - Federal - Additur

Answer 38

If judge believes that amount by jury is unconscionably low, the only option is to order the issue of damages retried

Question 39

Jury Trials - Federal - Remittitur

Answer 39

If the damages amount is too high so as to shock the conscience, the trial judge must present the options of remittitur and submitting for new trial

Question 40

Jury Trials - Cross-Section Requirement

Answer 40

Must have a jury pool that is representative of the community, otherwise a motion for a new trial may be granted

If challenging adherence to the requirement, must show that all pools in the area have issues

Question 41

Class Actions

Answer 41

1) Numerosity
2) Commonality
3) Typicality
4) Adequacy of representation
5) Plus on of the following: a) risk of inconsistent results, b) injunctive or declarative relief are appropriate, or c) common questions among the class predominate

Question 42

Res Judicata (Claim Preclusion)

Answer 42

1) The earlier judgment is a valid, final judgment on the merits;
2) The cases are brought by the same claimant against the same D;
3) The same cause of action is involved in the later lawsuit; and
4) The cause of action was or could have been litigated in the prior action

Question 43

Collateral Estoppel (Issue Preclusion)

Answer 43

1) The first case ended in a valid, final judgment on the merits;
2) The issue was actually litigated and determined in the first case; and
3) The issue was essential to the judgment

Question 44

Offensive Collateral Estoppel

Answer 44

1) The first case ended in a valid, final judgment on the merits;
2) The issue was actually litigated and determined in the first case;
3) The issue was essential to the judgment;
4) The party against whom the judgment is to be used had a fair opportunity to be heard; and
5) It wouldn’t be unfair to apply collateral estoppel offensively