Civil Procedure

Question 1

For diversity jurisdiction, a corporation is considered a citizen of:

Answer 1

1) every state in which it is incorporated; and 2) the one place where its principal place of business is.

Question 2

How many principal places of business can a corporation have?

Answer 2

Only one.

Question 3

May a single plaintiff aggregate unrelated claims against a single defendant to reach the $75,000 < requirement for diversity jurisdiction?

Answer 3

Yes.

Question 4

Under the Erie Doctrine, federal courts apply state ____________ law and federal _____________ law.

Answer 4

Substantive; procedural.

Question 5

If one plaintiff invokes diversity jurisdiction in federal court, another plaintiff may invoke supplemental jurisdiction to have their claim heard in federal court, too if:

Answer 5

1) the claim arises from the same nucleus of operative fact; and 2) there is complete diversity between the plaintiffs and the defendant(s).

Question 6

28 U.S.C. 1331 does what for federal courts?

Answer 6

Grants federal district courts original jurisdiction to hear all civil causes of action arising under the Constitution, laws or treaties of the United States.

Question 7

28 U.S.C. 1332 does what?

Answer 7

Establishes diversity of citizenship jurisdiction and the amount in controversy requirement.

Question 8

Under Title 28, can a citizen of a state sue a citizen of a foreign country?

Answer 8

Yes. Diversity jurisdiction allows a United States citizen to sue a citizen of a foreign country in federal court so long as there is complete diversity between the parties and the amount in controversy requirement is met.

Question 9

What are two areas of cases over which the federal courts will refuse to exercise jurisdiction?

Answer 9

Domestic relations and probate.

Question 10

Will the federal courts exercise jurisdiction over criminal proceedings?

Answer 10

Yes, where appropriate.

Question 11

Are attorneys fees and interest included in the amount in controversy requirement for diversity of jurisdiction?

Answer 11

Yes, if the attorneys fees are recoverable by contract and interest is part of the claim.

Question 12

When can a plaintiff or defendant intervene in a case?

Answer 12

When the plaintiff/defendant has a claim/defense involving a common question of law or fact. This is within the judge’s discretion.

Question 13

When are the parties’ citizenship settled for purposes of the diversity requirement?

Answer 13

At the time the lawsuit is filed with the court.

Question 14

Can the federal courts exercise *diversity jurisdiction over criminal proceedings?

Answer 14

No. Federal courts cannot exercise jurisdiction over criminal proceedings simply because there are diverse parties.

Question 15

In order to bring a claim to federal court under supplemental jurisdiction, the original claim must . . .

Answer 15

be based on federal subject matter jurisdiction.

Question 16

A brings a federal subject matter jurisdiction claim to federal court. B, another plaintiff, brings a state claim which shares common issues of law or fact as A’s claim to federal court under supplemental jurisdiction. A’s claim is later dismissed by the court. Must B’s claim also be dismissed?

Answer 16

No. Claims brought to federal court under supplemental jurisdiction can remain in the federal court despite the federal subject matter claim which the supplemental jurisdiction claim piggy-backed off of was dismissed.

Question 17

Under what circumstances will a state claim that is in federal court via supplemental jurisdiction be dismissed to state court?

Answer 17

If the state claim is 1) complex or novel; 2) predominate over the federal claims; or 3) in exceptional circumstances there are compelling reasons why the court must decline jurisdiction.

Question 18

Is there an amount in controversy requirement for federal subject matter jurisdiction?

Answer 18

No. The amount in controversy requirement only applies to diversity of citizenship jurisdiction.

Question 19

Is using a federal defense against a state claim enough to get federal subject matter jurisdiction?

Answer 19

No. A complaint will not create federal question jurisdiction if it alleges federal issues only in anticipation of some defense.

Question 20

What content is taken into consideration in determining whether there is federal subject matter jurisdiction over a claim?

Answer 20

None. The content of the claim or counterclaim is irrelevant, so long as the requirements for establishing federal subject matter jurisdiction are met.

Question 21

Federal question jurisdiction will arise by virtue of a plaintiff suing a corporation which was incorporated by Congress and . . .

Answer 21

the United States owns more than 50 percent of the corporation’s capital stock.

Question 22

Violation of a federal statute is sufficient to establish federal question jurisdiction regardless of whether it . . .

Answer 22

expressly provides for a civil cause of action in the case of its violation.

Question 23

When the United States owns more than 50 percent of the capital stock in a corporation incorporated by Congress, the corporation is treated as a ___________________.

Answer 23

federal agency and can sue or be sued on that basis alone.

Question 24

A and B are both citizens of Kansas. A wants to sue B in federal court, but there is no issue of federal law and there is no diversity between the parties. How can A establish diversity jurisdiction?

Answer 24

A can dismiss his suit, move to Missouri, then refile the case in a Kansas or Missouri Federal District Court, assuming his amount in controversy meets the $75,000+ threshold.

Question 25

Rob files a state law action in the Jackson County, Missouri District Court. Alex, the defendant, wants to remove the case to federal court. Assuming it is capable of being removed to federal court, Alex removes it to the U.S. District Court for the Eastern District of Missouri. Is his removal proper?

Answer 25

Yes. In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if the venue would have been improper had the plaintiff originally filed the action in the federal district court of that state.

Question 26

How long does a defendant have to remove a case from state court to federal court based on diversity of citizenship?

Answer 26

One year. A case may not be removed to federal court based on diversity of citizenship more than one year after it was filed in state court. 28 U.S.C. 1441.

Question 27

Rob files a lawsuit in Jackson County District Court which contains both state and federal claims. Alex, a co-plaintiff, wishes to join an action with Rob’s actions which arises only under state law. The defendant wishes to remove the case to federal court. Which claims can be removed to federal court?

Answer 27

All of them. If a case filed in state court contains a claim that would arise under federal law, and it is joined with a state law claim that does not invoke diversity or supplemental jurisdiction, the entire case may nonetheless be removed to federal court. 28 U.S.C. 1441.

Question 28

A sues B in state court. Before trial, B demands a trial by jury as required for jury trials under that state’s law. B later decides to remove the case to federal court. Must B demand a jury trial again when he gets to federal court?

Answer 28

No. If a party has demanded a jury trial in accordance with state law, and the case is later removed to federal court, the party need not reassert their demand for a jury trial in order to get one in federal court.

Question 29

What must a complaint include?

Answer 29

1) a short statement of the grounds for the court’s jurisdiction; 2) a short statement of the claim showing the plaintiff is entitled to relief; and 3) a demand for judgment for relief (which may be in the alternative).

Question 30

If a defendant waives service of process, what else does she waive?

Answer 30

Nothing. A defendant waiving service of process does not automatically waive the right to object to venue or personal jurisdiction.

Question 31

How consistent must the pleadings of a party be?

Answer 31

Not at all consistent. A party may set forth as many claims and defenses as they may have in their pleadings regardless of their consistency.

Question 32

What must be present in order for named representatives to sue on behalf of a class in a class action lawsuit?

Answer 32

Questions of law or fact that are common to the entire class.

Question 33

What types of sanctions can be levied on parties under Rule 11 of the Federal Rules of Civil Procedure?

Answer 33

Monetary penalties and nonmonetary penalties.

Question 34

To whom can Rule 11 sanctions be extended?

Answer 34

Parties, lawyers and law firms.

Question 35

When must the representatives of a class notify the class of a dismissal or settlement of the class action lawsuit?

Answer 35

When the judgment binds the class. If the judgment does not bind the class, the representatives need not inform the class of the settlement.

Question 36

In a federal question case, when is the action considered as being commenced for Statute of Limitations purposes?

Answer 36

When the action is filed with the federal court.

Question 37

What rule governs interpleader?

Answer 37

Rule 22 of the Federal Rules of Civil Procedure

Question 38

What is the source of statutory interpleader?

Answer 38

28 U.S.C. 1335

Question 39

What does it mean to implead someone?

Answer 39

To bring another party into the lawsuit which is on the same side as you. A defendant may implead a third party defendant.

Question 40

What does it mean to interplead someone?

Answer 40

To bring another party into a lawsuit who opposes you. A plaintiff may interplead a third party defendant.

Question 41

A class action lawsuit founded on diversity jurisdiction may go forward as long as . . .

Answer 41

any named class representative’s claim exceeds $75,000.

Question 42

Supplemental Pleading —

Answer 42

a pleading relating to matters accruing after the date of the original pleading.

Question 43

Intervention of Right —

Answer 43

where an applicant for intervention has an interest in the property or transaction which is the subject of the suit and whose ability to protect such interest might be impaired by the disposition of the action; i.e. the suit involves her property or something she has an interest in and she is a stakeholder in the outcome of the case.

Question 44

Who issues a default judgment?

Answer 44

The Clerk of the Court

Question 45

What is required for the Clerk of the Court to issue a default judgment?

Answer 45

The defendant cannot be an infant or incompetent; the plaintiff’s claim must be for a sum certain; and the default must have been entered because the defendant failed to appear in court.

Question 46

A, a resident of Kansas, sues B, a resident of Missouri. The suit is filed in federal court and is therefore subject to federal civil procedure. Which state’s law governs the service of process on B?

Answer 46

Missouri law. Federal Rule of Civil Procedure 4 permits the service of process in accordance with the law of the state where the defendant is domiciled.

Question 47

What must a 3rd party defendant do after having been impleaded by the defendant? What may he do?

Answer 47

After being impleaded by a defendant, a third party defendant must assert any compulsory counterclaims which arise out of the same common nucleus of operative fact and may assert any permissive counterclaims. The permissive counterclaims must meet the jurisdictional requirements, but need not arise out of the same common nucleus of operative fact as the original claim.

Question 48

What is the overall test for determining whether there is personal jurisdiction?

Answer 48

1) is there a state statute granting personal jurisdiction; and 2) does personal jurisdiction satisfy the Constitution?

Question 49

The constitutional analysis for determining whether there is personal jurisdiction requires that the defendant have minimum contacts with the forum state such that “jurisdiction does not offend traditional notions of fair play and substantial justice.” What does that require the court to assess?

Answer 49

The court must assess the following factors: 1) contacts; 2) relatedness; and 3) fairness.

Question 50

In determining whether the defendant has sufficient contacts with the forum state, what two things must be proven?

Answer 50

1) the contact must result from a purposeful availment by the defendant; and 2) it must be foreseeable that the defendant could get sued in that forum.

Question 51

What are some examples of a purposeful availment by the defendant?

Answer 51

Marketing a product in the forum; using the roads in the forum; establishing a domicile in the forum; traveling in the the forum; sending an email into the forum state.

Question 52

What must be found in order to meet the relatedness prong of the constitutional test for personal jurisdiction?

Answer 52

The plaintiff’s claim must arise from the defendant’s contact with the forum state.

Question 53

If a plaintiff’s claim arises from a defendant’s contact with a state, what kind of personal jurisdiction does the court have over the defendant?

Answer 53

Specific personal jurisdiction.

Question 54

If the plaintiff’s claim does not arise from the defendant’s contact with the forum state, can the court still exercise personal jurisdiction over the defendant?

Answer 54

Yes, if the court has general jurisdiction. In that case, the court will have personal jurisdiction over the defendant for claims that arose anywhere in the world.

Question 55

For a court to have general jurisdiction, what must be true?

Answer 55

The defendant is at home in the forum state.

Question 56

Where are corporations domiciled; i.e. subject to general personal jurisdiction?

Answer 56

1) wherever it is incorporated; and 2) where it’s principle place of business is located.

Question 57

To meet the fairness prong of the constitutional test for personal jurisdiction, what must be considered?

Answer 57

The following must be considered: 1) the burden on the defendant and witnesses; 2) the state’s interest; and 3) the plaintiff’s interest.

Question 58

The fairness prong of the constitutional test for personal jurisdiction applies only to . . .

Answer 58

specific jurisdiction

Question 59

General Jurisdiction —

Answer 59

a state has jurisdiction over those who are at home in that state, despite their actions taking place elsewhere.

Question 60

Specific Jurisdiction —

Answer 60

a state has jurisdiction over those who are in the state and whose actions take place in that state.

Question 61

What does notice consist of?

Answer 61

A summons and a copy of the complaint.

Question 62

If the D is to be served in the USA, service is to take place within how long?

Answer 62

Within 90 days of the complaint being filed with the court.

Question 63

If the D executes and mails a waiver form to the P within ________ days, the D waives formal service of process.

Answer 63

30

Question 64

If the D waives formal service of process, does D waive any defense like lack of PJ?

Answer 64

No

Question 65

When D signs and mails the waiver form back to P, what does P do?

Answer 65

Files it with the court.

Question 66

If D fails to return the waiver form, and there is no good cause for having not returned the waiver form, what is the D liable for?

Answer 66

The cost of service of process.

Question 67

What happens if a process server fails to file an affidavit regarding his serving process on someone, what happens?

Answer 67

Nothing. It is still valid service.

Question 68

When might someone be immune from service of process?

Answer 68

When that person is in a jurisdiction because they are a party, witness or attorney in a case in that jurisdiction. That is the only reason they are present in the jurisdiction.

Question 69

How are other documents, like discovery, motions, etc. delivered to the other side?

Answer 69

Delivery or mail. You can also do it by email if you agree to do that.

Question 70

Most claims under __________ law can be heard by state courts.

Answer 70

federal

Question 71

What are the two main types of cases that can be heard in federal court?

Answer 71

Diversity of jurisdiction and federal question.

Question 72

Diversity of jurisdiction includes what kind of jurisdiction?

Answer 72

alienage

Question 73

What are the requirements for establishing diversity of citizenship jurisdiction?

Answer 73

1) complete diversity; and 2) amount in controversy is over $75,000.

Question 74

Alienage Jurisdiction —

Answer 74

Citizen of the USA v. Citizen of another country

Question 75

Diversity of Jurisdiction —

Answer 75

Kansas v. Missouri

Question 76

A foreign citizen has a green card and is legally admitted for permanent residence in the United States. If she is sued, is the case under diversity of citizenship jurisdiction or alienage jurisdiction?

Answer 76

Alienage jurisdiction. A citizen of a foreign country, regardless of their being legally present in the United States, cannot be considered a citizen for purposes of the diversity of citizenship rule.

Question 77

How is one’s citizenship determined?

Answer 77

Wherever the person is domiciled.

Question 78

The plaintiff, a U.S. citizen who is domiciled in Japan, sues the defendant, a resident of California in federal court. Is there alienage jurisdiction?

Answer 78

No, because the plaintiff is not an alien; he is a U.S. citizen.

Question 79

The plaintiff, a U.S. citizen who is domiciled in Japan, sues the defendant, a resident of California in federal court. Is there diversity of citizenship jurisdiction?

Answer 79

No, because the plaintiff is not a citizen of a U.S. state, because he is domiciled out of the country.

Question 80

Can a person have more than one domicile at once?

Answer 80

No. You can only have one domicile.

Question 81

How do you establish a new domicile?

Answer 81

1) presence in the new place; and 2) intent to make it your home for the foreseeable future.

Question 82

When is citizenship in a case established?

Answer 82

When the suit is filed.

Question 83

Is the District of Columbia a state for purposes of diversity of citizenship?

Answer 83

Yes.

Question 84

What is the citizenship of a corporation?

Answer 84

1) every state where it is incorporated; and 2) the one state where it has its principal place of business.

Question 85

What is the citizenship of an unincorporated association?

Answer 85

Wherever its members are citizens.

Question 86

What are some examples of an unincorporated association?

Answer 86

Partnerships, LLCs, etc.

Question 87

In the case of a limited partnership, do you include the citizenships of the limited partners for purposes of establishing citizenship?

Answer 87

Yes.

Question 88

Aggregation —

Answer 88

adding two or more claims to meet the amount in controversy requirement.

Question 89

Can we aggregate factually unrelated claims?

Answer 89

Yes.

Question 90

Is there a limit to the number of claims that can be aggregated?

Answer 90

No

Question 91

Plaintiff #1 sues D for $50,000. In the same case, Plaintiff #2 sues D for $40,000. Can we aggregate these claims?

Answer 91

No, because the claims are not brought by the same plaintiff. To aggregate, the claims must be by the same plaintiff against the same defendant.

Question 92

Where a plaintiff is suing a defendant in equity rather than for damages, how is the amount in controversy requirement met?

Answer 92

There are two tests in this kind of case: 1) does the defendant’s activity decrease the plaintiff’s position by more than $75,000? 2) would it cost the defendant more than $75,000 to comply with the equitable solution? If yes to either, than the requirement is met.

Question 93

What kind of cases will federal courts never hear?

Answer 93

Divorce, alimony, child custody, and probate/estate.

Question 94

When must the defendant remove the case?

Answer 94

The defendant must remove the case to federal court within 30 days of service of the first paper which shows the case is removable.

Question 95

Who must join in the removal?

Answer 95

All defendants who have been served with process.

Question 96

Must all defendants remove the case by using the same removal notice document?

Answer 96

No, they may all remove the case to federal court using separate documents, so long as they all do so in a timely fashion.

Question 97

Can plaintiffs ever remove a case to federal court?

Answer 97

No

Question 98

What kind of cases can be removed to federal court?

Answer 98

Any case which could have been filed in federal court originally; i.e. any case which meets the diversity of citizenship or federal question requirements.

Question 99

A plaintiff from Georgia sues a defendant from Minnesota and a defendant from Alabama on state law claims for $500,000 in an Alabama state court. Can the defendants remove?

Answer 99

No, because one of the defendants is a citizen of the state where the case is filed. Removal is prohibited where one of the defendants is a citizen of the place where the case is filed.

Question 100

In-State Defendant Rule —

Answer 100

a case which is based on diversity of citizenship cannot be removed to federal court when the defendant is a citizen of the state where the suit is filed.

Question 101

Is there a temporal limit on when a case can be removed to federal court?

Answer 101

Yes. A case cannot be removed more than one year after it was first filed in state court.

Question 102

To what federal court does a defendant’s removed case go to?

Answer 102

The federal court “embracing” the state court where the case was originally filed.

Question 103

Does removal require permission from the state or federal court?

Answer 103

No

Question 104

Supplemental Jurisdiction —

Answer 104

in a case where a claim is properly in federal court, the parties can make additional claims which do not meet complete diversity or federal question requirements.

Question 105

In order for a federal court to exercise supplemental jurisdiction over a claim, what must the claim do?

Answer 105

The claim must arise out of the same common nucleus of operative fact as the claim which invoked subject matter jurisdiction; i.e. it must arise out of the same transaction or occurrence as the claim that invoked SMJ.

Question 106

There is a limitation to supplemental jurisdiction being exercised over certain kinds of cases. To what kind of cases does the limitation apply to?

Answer 106

Diversity of citizenship cases.

Question 107

When can a federal court decline supplemental jurisdiction?

Answer 107

If the federal claim is dismissed early in the case.

Question 108

Generally, describe the Erie Doctrine

Answer 108

The federal court in a diversity case must apply the substantive law of the state and the procedural law of the federal government.

Question 109

In a diversity case where federal law directly conflicts with state law, which law must be applied by the judge?

Answer 109

Federal law due to the supremacy clause of the Constitution.

Question 110

In a diversity case where federal law does not directly conflict with state law, what law must the judge apply?

Answer 110

State law if the issue to be determined is “substantive.”

Question 111

What kinds of law are patently substantive for purposes of the Erie Doctrine?

Answer 111

Elements of a claim or defense; statutes of limitations; rules for tolling statutes of limitations; and conflict of law rules.

Question 112

In a diversity case where federal law does not directly conflict with state law, and the issue to be determined is not obviously substantive, what must the federal judge do?

Answer 112

Determine whether the issue is substantive or not. In making this determination, the court must consider the following: 1) is applying the particular law outcome determinative? 2) does either federal or state system have strong interest in having its rule applied? 3) if the federal court ignores state law on this issue, will it cause parties to flock to federal court? If so, the court should probably apply state law.

Question 113

There is no ______________ federal common law.

Answer 113

general

Question 114

The plaintiff may file suit in any federal district court where:

Answer 114

1) all defendants reside; or 2) a substantial part of the claim arose.

Question 115

What district court is proper venue for a case which was originally filed in state court but which has been removed by the defendant?

Answer 115

The federal court embracing the state court in which the action was originally filed.

Question 116

Can a substantial part of a claim arise in more than one district?

Answer 116

Yes

Question 117

If the defendant lives outside the United States, which federal court is proper venue?

Answer 117

Any U.S. District Court

Question 118

What district court is proper for a case where the plaintiff is suing two defendants, each of whom live in a different district?

Answer 118

Either district where one of the defendants lives.

Question 119

For venue purposes, where does a business reside?

Answer 119

Anywhere it is subject to personal jurisdiction.

Question 120

Transfer —

Answer 120

the transferring of a case from one trial court in a judicial system to another trial court in the same judicial system.

Question 121

In order to transfer a case to another court in the same judicial system as the court from which it is being transferred, the court to which the case is being transferred must . . .

Answer 121

1) be a proper venue; and 2) have personal jurisdiction over the defendant.

Question 122

There is an exception to the transfer requirement that the venue be proper. What is it?

Answer 122

Under transfer statute #1, the court can transfer to any district if all parties consent and the court finds cause for the transfer.

Question 123

If the venue is improper, what may that court do?

Answer 123

If can either dismiss the case or transfer in the interest of justice.

Question 124

What does forum non conveniens do for a case?

Answer 124

Under FNC, the court either dismisses the case or stays it due to inconvenience of bringing the suit in that court. The court will stay the case if it belongs in another judicial system. It will dismiss the case without prejudice if it belongs in another court within the same judicial system.

Question 125

What must a complaint contain?

Answer 125

1) a statement of grounds of the court’s subject matter jurisdiction; 2) a short and plain statement of the claim showing entitlement to relief; and 3) a demand for relief sought.

Question 126

There are three matters which, when a plaintiff writes a complaint, must be described in more detail than other causes of action. What are these causes of action?

Answer 126

Fraud; mistake; special damages.

Question 127

What are the methods by which a defendant can respond to a plaintiff’s complaint?

Answer 127

1) by motion; or 2) by answer.

Question 128

A defendant has how long to respond to a plaintiff’s complaint?

Answer 128

21 days if service of process was not waived; 60 days if waived.

Question 129

Motions are not ______________.

Answer 129

pleadings

Question 130

Answers are ______________.

Answer 130

pleadings

Question 131

What must a defendant do in their answer?

Answer 131

1) respond to allegations of the complaint; and 2) raise affirmative defenses to the allegations.

Question 132

The plaintiff and defendant both have right to amend their pleadings (complaint and answer, respectively) how often and within what time period?

Answer 132

Once; within 21 days of serving their complaint/response.

Question 133

What happens if either party does not have a right to amend their pleading?

Answer 133

They must seek leave of court.

Question 134

Where the evidence at trial does not match with the allegations made in the pleadings?

Answer 134

The court will grant that party leave to amend their pleading.

Question 135

Under what circumstances can a plaintiff add a claim to their complaint after the statute of limitations has run on that claim?

Answer 135

The court will allow adding the claim to the complaint if it “relates back;” i.e. if the added claim concerns the same conduct, transaction or occurrence as the original pleading.

Question 136

When can a plaintiff or defendant add a defendant after the statute of limitations has run on the cause of action?

Answer 136

If the addition of the defendant 1) concerns the same conduct, transaction or occurrence as the original; 2) the new party knew of this case within 90 days of filing; and 3) she also knew or should have known that, but for a mistake, she would have been named originally.

Question 137

What are supplemental pleadings?

Answer 137

Pleadings which set forth things that happened after the pleading was filed with the court.

Question 138

What are amended pleadings?

Answer 138

An amended pleading which sets forth things that happened before the pleading was filed but which were not asserted until after.

Question 139

Is there a right to make an amended pleading?

Answer 139

No. The party seeking the amended pleading must make a motion.

Question 140

Broadly, what does Rule 11 require?

Answer 140

That you are honest with the court and with the other parties.

Question 141

May a party who is making a claim join additional claims to the case, even if they are wholly unrelated to the other claims?

Answer 141

Yes, assuming that the new claim has SMJ.

Question 142

Describe Joinder of Claims —

Answer 142

A party making a claim may join additional claims in the same case even if the new claim is wholly unrelated to the original claim so long as the new claim meets the requirements for SMJ.

Question 143

What are the requirements for joining parties?

Answer 143

A party may properly join additional parties on their side if: 1) the claims of the new parties arise from the same transaction or occurrence; and 2) the parties all raise at least one common question of fact or law.

Question 144

Can a court force a defendant or plaintiff to be joined?

Answer 144

Yes

Question 145

An absent party is necessary, and therefore capable of being joined by the court, if:

Answer 145

1) without them, the court cannot accord complete relief among existing parties; 2) the absentee’s interest may be harmed if they are not joined; or 3) the absentee claims an interest that subjects a party to a risk of multiple obligations.

Question 146

Must all potentially responsible defendants be joined in an action?

Answer 146

Never.

Question 147

A necessary party can only be joined in a case if their joinder is ______________.

Answer 147

feasible; i.e. 1) there is PJ over you; and 2) joining you will not goof up diversity jurisdiction.

Question 148

If a joinder is found to be feasible, what will the court do?

Answer 148

It will join you!

Question 149

What happens if an absentee party is found that it cannot be joined due to lack of personal jurisdiction or another reason?

Answer 149

The court can 1) proceed without the absent party; or 2) dismiss the whole case.

Question 150

Counterclaim —

Answer 150

a claim against an opposing party who has already made a claim against you. Ex: P sues D. D sues P back. D suing P back is a counterclaim.

Question 151

What types of counterclaims are there?

Answer 151

Compulsory counterclaims and permissive counterclaims.

Question 152

Compulsory Counterclaim —

Answer 152

A counterclaim which arises out of the same transaction or occurrence as the plaintiff’s original claim. These must br brought against the plaintiff or the defendant loses their right to assert it.

Question 153

Permissive Counterclaim —

Answer 153

A counterclaim which does not have to be asserted in that particular case because it does not arise out of the same transaction or occurrence as the plaintiff’s original claim.

Question 154

Must a counterclaim meet the requirements for subject matter jurisdiction?

Answer 154

Yes. All counterclaims must be assessed as to whether they meet the requirements for subject matter jurisdiction.

Question 155

Crossclaim —

Answer 155

a suit against a co-party which arises from the same transaction or occurrence as the plaintiff’s original claim. These are not compulsive. You can bring these separately.

Question 156

Must a crossclaim meet the requirements for subject matter jurisdiction?

Answer 156

Yes. Literally every claim must meet the requirements for subject matter jurisdiction. If it does not, try supplemental jurisdiction.

Question 157

Impleader —

Answer 157

a defendant’s bringing in a third party into the suit by suing that third party. These are not compulsory. These are usually done for indemnity or contribution purposes.

Question 158

How long does a defendant have to implead a third party defendant?

Answer 158

14 days before it must ask the court for permission.

Question 159

After a third party defendant has been joined via impleader, can the plaintiff bring an action against that third party defendant?

Answer 159

Yes, so long as the claim arises from the same transaction or occurrence as the original claim.

Question 160

After a third party defendant has been joined via impleader, can the third party defendant bring an action against the plaintiff?

Answer 160

Yes, so long as the claim arises out of the same transaction or occurrence as the original claim.

Question 161

Intervention —

Answer 161

a non-party brings herself into the case either as a plaintiff or defendant.

Question 162

What types of intervention are there?

Answer 162

Intervention of right and permissive intervention.

Question 163

Intervention of Right —

Answer 163

an intervenor’s interest may be harmed if she is joined and is not adequately represented.

Question 164

Permissive Intervention —

Answer 164

an intervenor’s claim or defense and the pending case have at least one common question.

Question 165

Must an intervention action by a non-party meet the requirements for subject matter jurisdiction?

Answer 165

Yes.

Question 166

Class Action —

Answer 166

a representative sues on behalf of a group.

Question 167

For a class action to be filed, it must meet all four of the following requirements:

Answer 167

1) numerosity; 2) commonality; 3) typicality; and 4) representative is adequate.

Question 168

What types of class actions are there?

Answer 168

There are three types of class actions, depending on the kind of relief sought: 1) prejudice; 2) injunction or declaratory judgment; or 3) damages.

Question 169

In order to file a damages class action, the plaintiff/representative must prove:

Answer 169

1) common questions predominate over individual questions; and 2) class action is the superior method to handle the dispute.

Question 170

When is a case officially a class action?

Answer 170

When the court grants the motion to certify the class.

Question 171

Damages class actions require the court to do what to class members?

Answer 171

Give notice of their being in a class. This notice can be sent by mail.

Question 172

Who pays to have members of a class notified of their being in a class action lawsuit?

Answer 172

The representative of the class

Question 173

Class members have a right to opt out of _________________ class actions.

Answer 173

damages

Question 174

Class members do not have a right to opt out of what kind of class actions?

Answer 174

Injunctive/declaratory relief or prejudice class actions.

Question 175

When can parties settle or dismiss a certified class action?

Answer 175

When the court approves.

Question 176

Must class action cases meet the requirements for subject matter jurisdiction?

Answer 176

Yes.

Question 177

Under the Class Action Fairness Act, when can a class action get subject matter jurisdiction?

Answer 177

When 1) any class member is diverse from any defendant; and 2) if the aggregated claims of the class exceed $5 million.

Question 178

In regards to discovery, what must each party disclose to the other side?

Answer 178

Identities of persons who have discoverable information that you can use to support your position; documents or objects you may use to support your claims or defenses; a computation of relief and documents support it; and insurance coverage.

Question 179

What happens if a party fails to disclose something she was required to disclose as an initial disclosure?

Answer 179

That party cannot use that material in their case.

Question 180

Must you disclose an expert who helps you put the case together, but who you do not intend on having testify?

Answer 180

No. They are merely a consulting expert.

Question 181

What must you disclose in regards to an expert witness?

Answer 181

1) the identity of the witness; and 2) a written report by the expert witness describing their findings, opinions, bases for the opinions, facts used to form opinions, their qualifications and how much they are being paid.

Question 182

When may a person take a deposition of an expert witness?

Answer 182

After the written report by the expert has been submitted to the opposing side.

Question 183

Must a side disclose earlier drafts of an expert witness’s written report?

Answer 183

No; those are work product.

Question 184

What happens if a side fails to disclose an expert witness?

Answer 184

They cannot use the EW unless their failure was justified or harmless.

Question 185

How long before trial must each side disclose their evidence and witnesses to the other side?

Answer 185

No later than 30 days before trial.

Question 186

How do you get a non-party to submit to a deposition?

Answer 186

A subpoena from the court.

Question 187

What does a subpoena duces tecum do?

Answer 187

Requires a witness to bring documents or objects to a deposition.

Question 188

Unless the other party agrees, what is the farthest you can make a nonparty travel for a deposition?

Answer 188

100 miles from their residence or their employer.

Question 189

What is the maximum number of depositions you can take?

Answer 189

You cannot depose an individual more than twice and you are given ten depositions overall before you start requesting court approval.

Question 190

To whom are interrogatories sent?

Answer 190

Parties, never nonparties.

Question 191

How long do you have to respond to an interrogatory?

Answer 191

30 days from the service of the interrogatory.

Question 192

Are interrogatories asking about the points or contentions being made by the other party in the case OK?

Answer 192

Yes.

Question 193

What is the maximum number of interrogatories you can send to another party?

Answer 193

25 questions.

Question 194

Can you use your own answers to interrogatories at trial?

Answer 194

No

Question 195

Where a request to produce has been received by a party, what must that party do?

Answer 195

They must respond in writing within 30 days of service, stating either that the material will be produced or asserting objections.

Question 196

In order to perform a medical exam on someone, what must you first attain?

Answer 196

A court order

Question 197

What must you show in order to get a court order to have medical exam performed on someone?

Answer 197

You must show 1) the person’s health is in actual controversy; and 2) good cause.

Question 198

Who can be ordered to undergo a medical exam?

Answer 198

A party or someone in the party’s custody or legal control.

Question 199

Who chooses the doctor to perform a medical exam?

Answer 199

The party requesting the medical exam

Question 200

Can a party who was subject to medical exam receive a copy of the medical exam?

Answer 200

Yes, by requesting it.

Question 201

What must a party do after they request to see the medical exams they were subject to?

Answer 201

They must disclose the medical reports of their own physicians about the relevant medical condition. Additionally, the party waives all doctor-patient privilege on that particular medical issue.

Question 202

What does a request for admission do?

Answer 202

Requests the other party to admit or deny something.

Question 203

If you do not expressly deny something, you are deemed as having . . .

Answer 203

admitted it.

Question 204

Can the responding party say she does not know the answer to a request for admission?

Answer 204

Yes, but only if she states she made a reasonable inquiry and cannot find enough information from which to deny or admit.

Question 205

All discovery requests and responses must be ______________.

Answer 205

signed

Question 206

When circumstances change after you have responded to a request to admit, you must send the requesting party a . ..

Answer 206

supplemental admission.

Question 207

Generally, what is discoverable?

Answer 207

Anything that is 1) relevant and 2) proportional to the needs of the case.

Question 208

Things can be discovered that are not _______________.

Answer 208

admissible at trial.

Question 209

Is privileged information capable of being discovered?

Answer 209

No, unless the other party waives the privilege.

Question 210

Work Product —

Answer 210

something prepared by a party to a case which is made in anticipation of litigation.

Question 211

Must work product be made by a lawyer?

Answer 211

No, a party or representative can make work product.

Question 212

When can work product become discoverable?

Answer 212

Work product is discoverable when 1) there is substantial need; and 2) the information contained therein cannot be gained by any other method.

Question 213

Despite the exception to work product not being discoverable, there are certain things which can never, ever be discoverable. These include:

Answer 213

mental impressions, opinions, conclusions, and legal theories.

Question 214

To assert privilege or work product, and therefore render something undiscoverable, you must do what?

Answer 214

You must expressly claim the privilege or work product and describe it in a document for the judge.

Question 215

What can a side do if they believe a discovery request subjects them to annoyance, embarrassment, undue burden, or expense?

Answer 215

The party being requested can ask for a protective order.

Question 216

To receive a protective order from the court, the party requesting the order must make what?

Answer 216

A good faith showing that they have tried to work it out with the other party.

Question 217

What may a party do if the opposing party responds to a request for discovery, but does not fully comply with the request?

Answer 217

Move for a motion to compel discovery.

Question 218

What may a party do if there is no response to a request for discovery?

Answer 218

Seek sanctions.

Question 219

When litigation is reasonably anticipated, both parties have a duty to ______________ discovery.

Answer 219

preserve

Question 220

Preliminary Injunction —

Answer 220

a court order that the defendant do or not do something in order to prevent the defendant from prejudicing the plaintiff’s case.

Question 221

What might a party seek in order to preserve the status quo before a hearing has been held regarding whether a preliminary injunction will be granted?

Answer 221

The party wishing to preserve the status quo can move for a temporary restraining order.

Question 222

Can a court order a temporary restraining order without first notifying the defendant?

Answer 222

Yes, but only if 1) the applicant files a paper under oath clearly showing that if the TRO is not issued, he will suffer immediate and irreparable harm; and 2) the applicant’s lawyer certifies in writing her efforts to give oral or written notice to the defendant or the defendant’s lawyer.

Question 223

How long is a TRO effective?

Answer 223

14 days. It can be renewed for another 14 days.

Question 224

Can you appeal a decision to grant a TRO?

Answer 224

No

Question 225

What must be shown by the applicant for a preliminary injunction in order to get the order to be issued by a court?

Answer 225

1) he is likely to suffer irreparable harm if the injunction is not issued; 2) he is likely to win on the merits; 3) the balance of hardship favors him; and 4) the injunction is in the public interest.

Question 226

If the court issues a preliminary injunction, the applicant must post a ___________.

Answer 226

bond.

Question 227

Is an order granting or denying a preliminary injunction immediately appealable?

Answer 227

Yes

Question 228

When can a plaintiff make a motion for voluntary dismissal?

Answer 228

Anytime

Question 229

When does a plaintiff have a right* to take a voluntary dismissal by filing a notice of dismissal?

Answer 229

Before the defendant has served an answer or has moved for summary judgment.

Question 230

A plaintiff files a case, and then files a notice of dismissal. The plaintiff later refiles the case and then files a notice of dismissal. What is the result of the second notice?

Answer 230

It is dismissed with prejudice, whereas the first time is was dismissed, it was dismissed without prejudice.

Question 231

When is a default judgment issued? By whom is it issued?

Answer 231

When the defendant does not respond to the complaint within 21 days of being served with process; the clerk of court.

Question 232

What must the plaintiff do when the defendant fails to respond to a complaint?

Answer 232

The plaintiff must make a motion for a default judgment. Otherwise, the plaintiff is assumed to be waiting around for the defendant to finally respond.

Question 233

What must the plaintiff show in order to get a default judgment?

Answer 233

1) show the defendant has made no response; 2) the claim itself must be for a sum certain in money; 3) the claimant must give a sworn statement of the sum owed; and 4) the defendant is not a minor or incompetent.

Question 234

Can the plaintiff ask the court for a default judgment?

Answer 234

Yes

Question 235

A defendant may make a motion to set aside a default judgment, but only if:

Answer 235

1) she shows good cause; and 2) shows a viable defense.

Question 236

What does a Rule 12(b)(6) motion do?

Answer 236

It argues that the plaintiff has failed to state a claim; i.e. that the facts do not align with a cause of action on which the plaintiff can get relief.

Question 237

What does the judge consider in determining whether to grant a 12(b)(6) motion?

Answer 237

Just the facts. No evidence, no conclusions, no law.

Question 238

After the defendant has answered the plaintiff’s complaint, the defendant may make a motion which is exactly the same as a 12(b)(6) motion. What is this motion called?

Answer 238

A motion for judgment on the pleadings, because both sides have plead their case.

Question 239

What must a party show in order to be granted a motion for summary judgment?

Answer 239

The moving party must show: 1) there is no genuine dispute on a material fact; and 2) that she is entitled to judgment as a matter of law.

Question 240

How long do you have to make a motion for summary judgment?

Answer 240

No later than 30 days after close of discovery.

Question 241

The court has ______________ in deciding whether to grant a motion for summary judgment.

Answer 241

discretion

Question 242

Can a motion for summary judgment be for partial judgment, such as to liability but allow the case to go to trial on damages?

Answer 242

Yes

Question 243

Can the court look at evidence in deciding to grant a motion for summary judgment?

Answer 243

Yes; it looks at the evidence in the light most favorable to the non-moving party.

Question 244

Motion in Limine —

Answer 244

a pretrial motion to decide whether the jury should hear certain evidence.

Question 245

Does the Seventh Amendment right to a jury trial apply to cases at equity?

Answer 245

No. Therefore, in a case involving both a legal damages claim and equitable relief, the jury will determine the facts as to the damages and not to the equitable relief.

Question 246

What happens when a fact underlies both a claim for damages and a claim for injuntive relief?

Answer 246

The jury will determine the fact.

Question 247

In a trial involving both claims for damages and injunctive relief, which issues will be heard first?

Answer 247

The damages

Question 248

Does the Seventh Amendment apply to state courts?

Answer 248

No

Question 249

What types of challenges are there to jurors?

Answer 249

For cause; peremptory. You get unlimited for-cause challenges, and a limit of 3 for peremptory challenges.

Question 250

What is the minimum and maximum number of jurors allowed in federal court?

Answer 250

Minimum of 6; maximum of 12.

Question 251

Must a jury verdict be unanimous?

Answer 251

Yes, unless otherwise agreed by the parties.

Question 252

Must the parties be allowed to make specific objections to the instructions and to the rejection of proposed instructions?

Answer 252

Yes, on the record and outside the jury’s hearing

Question 253

Motion for Judgment as a Matter of Law —

Answer 253

also referred to as a directed verdict, this motion is like a summary judgment motion except that it comes up at trial. It can only be entertained after the non-moving party has been heard.

Question 254

Renewed Motion for Judgment as a Matter of Law —

Answer 254

the same thing as a JMOL except made after the trial.

Question 255

When will a JMOL be issued?

Answer 255

If reasonable people could not disagree about a party winning.

Question 256

When will a RJMOL be issued?

Answer 256

If a reasonable person could not reach the conclusion the jury made.

Question 257

Motion for a New Trial —

Answer 257

judgment is entered, but some error at trial requires that we start over and have a new trial.

Question 258

Remittitur —

Answer 258

a finding that the damages owed to the plaintiff are excessive. In this case, a judge will give the plaintiff a choice: a new trial or reducing the damages to be paid by the defendant.

Question 259

Additur —

Answer 259

a finding that the damages to the plaintiff are insufficient. In this case, a judge will give the defendant a choice: new trial or a larger payment to the plaintiff.

Question 260

Where a plaintiff is offered a settlement, but rejects it, and later receives damages which are not as large as the settlement, the plaintiff is . . .

Answer 260

liable for the cost incurred by the defendant after the offer was made.

Question 261

The loser in a case has a right to appeal from a ________________.

Answer 261

Final judgment

Question 262

Final Judgment —

Answer 262

a judgment that determines the merits of the entire case. To determine whether an order is a final judgment, we must ask: after making the ruling, does the trial court have anything left to do on the merits of the case.

Question 263

Where and when do you file a notice of appeal?

Answer 263

With the district court no more than 30 days after the final judgment.

Question 264

When the district court decides questions of law, what standard does the Court of Appeals use?

Answer 264

De novo

Question 265

The content of a jury instruction is a question of __________.

Answer 265

law

Question 266

In a non-jury trial, when the district judge makes findings o fact, the court of appeals will affirm unless . . .

Answer 266

the findings are clearly erroneous

Question 267

In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless . . .

Answer 267

reasonable people could not have made that finding.

Question 268

On discretionary matters, the court of appeals will affirm unless . . .

Answer 268

the district court abused its discretion

Question 269

An error of law will not be overturned on appeal if . . .

Answer 269

it is harmless.

Question 270

When can a 12(b)(6) motion be made?

Answer 270

Any time before or during trial.

Question 271

Generally, amendments to pleadings relate back to the date the original pleading was filed if:

Answer 271

The amendment concerns the same conduct, transaction, or occurrence that was set forth in the original pleading

Question 272

If it is determined that an absentee’s interest in the subject matter of the litigation would be affected by a judicial determination of a case, the court has personal jurisdiction over the absentee, and joining him would not destroy jurisdiction or venue, he:

Answer 272

Must be joined as a party to the case

Question 273

Under certain circumstances, a _______ may be issued without notice to the other party.

Answer 273

Temporary restraining order

Question 274

The Seventh Amendment guarantees a trial by jury in all cases where:

Answer 274

The claim is “at law,” and the amount in controversy exceeds $20

Question 275

A _______ is a verdict in which the jury finds for the plaintiff or defendant, determines the damages or relief to be given, and answers specific questions of fact.

Answer 275

General verdict with special interrogatories

Question 276

A court cannot grant a motion for judgment as a matter of law (“JMOL”) until _______ and the court has found that _______.

Answer 276

The nonmoving party has been fully heard; a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue

Question 277

A new trial may be granted when the verdict is:

Answer 277

Excessive, inadequate, or against the weight of the evidence

Question 278

Under Federal Rule 41(b), _______ are grounds for a court to order an involuntary dismissal against a plaintiff.

Answer 278

The failure to prosecute the case, to comply with the Federal Rules, or to comply with a court order

Question 279

Under the doctrine of issue preclusion (collateral estoppel), a judgment in a prior case will be sufficient to bind the plaintiff or defendant in subsequent actions on different causes of action as to issues that were:

Answer 279

Actually litigated and essential to the judgment

Question 280

In an action where a claimant wants to use issue preclusion based on the judgment from a previous action to which claimant was not a party, a court must first find that:

Answer 280

1) the party against whom the judgment will be used had a fair opportunity to be heard on the critical issues; 2) the posture of the case is such that it would not be unfair or inequitable to apply issue preclusion; 3) the issue in the first case is identical to the issue in the second case; and 4) there was a final judgment.

Question 281

May the Supreme Court hear a direct appeal from a federal district court (i.e. not a three-judge panel)?

Answer 281

Yes, in certain cases.

Question 282

A state court generally must recognize the judgments of ________________ courts and federal courts generally must recognize judgments of __________ courts.

Answer 282

sister state; state

Question 283

For a defendant to have such minimum contacts with the forum that the exercise of personal jurisdiction over him would be fair and reasonable, the court must find:

Answer 283

That he purposefully availed himself of that forum and it was foreseeable that his activities would make him amenable to suit in the forum

Question 284

Venue is _______ in a civil action in a _______.

Answer 284

Proper; judicial district in which any defendant resides, if all defendants are residents of the state in which the district is located

Question 285

If venue is proper in the district where a suit is originally brought, is transfer to another district permitted, and if so where?

Answer 285

Transfer is permitted to another district where the action might have been brought, or to which all parties have consented

Question 286

Before making initial disclosures, a party must do what?

Answer 286

make a reasonable inquiry into the facts of the case

Question 287

During discovery, electronically stored information need not be produced if the responding party identifies it as:

Answer 287

Not reasonably accessible because of undue burden or cost

Question 288

A partnership has franchises in states A, B, C, D and E. The partners of the firm are citizens of states A, B and C. A citizen of state D files suit against the partnership in state D federal court. Does the court have subject matter jurisdiction?

Answer 288

No. The citizenship of partnerships and other non-incorporated entities is determined by the citizenship of the partners, not the locations of its franchises.

Question 289

A resident of state A sues resident of state B arguing breach of contract. The suit is filed in federal court, and is based on diversity of citizenship. The complaint alleges breach of contract for a contract entered into in state C and to be performed in state D. What state’s law will the court apply?

Answer 289

State B’s law. A federal court sitting in a particular jurisdiction will apply that jurisdiction’s choice of law rules in circumstances such as these.

Question 290

In a diversity case, when will a court not exercise supplemental jurisdiction over an additional claim brought by the plaintiff?

Answer 290

When the additional claim is made against an impleaded party which, if impleaded, would destroy complete diversity.

Question 291

Parties may obtain discovery of any _______ matter that is relevant to any party’s claim or defense and proportional to the needs of the case.

Answer 291

non-privileged

Question 292

During discovery, electronically stored information need not be produced if the responding party identifies it as:

Answer 292

Not reasonably accessible because of undue burden or cost

Question 293

For venue purposes, a business entity defendant is deemed to reside in:

Answer 293

Any judicial district in which the defendant is subject to the court’s personal jurisdiction with respect to the action in question

Question 294

When a transfer is based on the ground that venue was improper, which law applies in the transferee court?

Answer 294

The law of the transferee court

Question 295

What is the alternative name for res judicata?

Answer 295

Claim preclusion

Question 296

What is the alternative name for collateral estoppel?

Answer 296

Issue preclusion

Question 297

Claim Preclusion —

Answer 297

you can only sue on a claim once. For claim preclusion to apply, cases 1 and 2 must have: 1) been brought by the same parties; 2) ended in a valid final judgment on the merits; and 3) have asserted the same claim; i.e. any right to relief from the same transaction or occurrence.

Question 298

Issue Preclusion —

Answer 298

you can only litigate an issue once. For an issue to be precluded from a subsequent case, case 1 must have: 1) ended in a valid, final judgment on the merits; 2) the same issue must have been actually litigated and determined; and 3) the issue was essential to the judgment in case 1.

Question 299

Are orders modifying, granting, or refusing preliminary or permanent injunctions final orders?

Answer 299

No. They may be appealed.