Civil Procedure

Question 1

Personal Jurisdiction

Answer 1

The exercise of jurisdiction must be authorized by a state statute and constitutional (i.e., the defendant must have purposeful minimum contracts with the forum such that the exercise of jurisdiction over the defendant in the forum state is fair and reasonable).

Question 2

Diversity Jurisdiction

Answer 2

For there to be jurisdiction each plaintiff must be a citizen of a different state from every defendant, and the amount in controversy must exceed $75,000.

Question 3

Federal Question Jurisdiction

Answer 3

For there to be jurisdiction, the plaintiff’s claim must arise out of the laws, treaties, or Constitution of the United States.

Question 4

Supplemental Jurisdiction

Answer 4

(1) Must arise out of a common nucleus of operative fact as the claim asserting original federal subject matter jurisdiction.
(2) There are various restrictions when jurisdiction is based on diversity.
(3) Plaintiffs may not use except when joining permissively with another plaintiff; even then, complete diversity of citizenship may not be destroyed.
(4) Defendants may use.

Question 5

Removal Jurisdiction

Answer 5

(1) A defendant may have a case transferred to federal court when the plaintiff could have filed in federal court originally.
(2) All defendants are properly jointed and served must join.
(3) The defendant must file a notice in the federal for the state in which the action is pending within 30 days of service.
(4) For diversity cases, a case cannot be transferred more than one year after filing unless bad faith by plaintiff can be shown, and a defendant being a citizen of the forum state is a bar to removal.

Question 6

General Venue Rule

Answer 6

A civil action in the federal court must be filed in:
(A) A district where any defendant resides, if all residents are from the same state.
(B) A district where a substantial part of the case occurred, or property is situated.
(C) There is no district that satisfies the above, a district in which the defendant is subject to personal jurisdiction regarding the action.

Question 7

Transfer of Venue

Answer 7

(1) If improper, the court may dismiss the case or transfer the case to another federal district where the case could have been brought. The transferee court will apply its own law.
(2) If proper, for the convenience of the parties, the court may transfer the case to another proper federal district where the action might have been brought or to which all the parties have consented. The transferee court will apply the law of the transferor court unless transfer is to enforce a forum selection clause.

Question 8

Impleader

Answer 8

(1) A defendant may bring a claim against a third-party who was not sued by the plaintiff. An impleader claim is for indemnity or contribution.
(2) Such a claim will satisfy the “common nucleus” for supplemental jurisdiction, and none of the restrictions in the supplemental jurisdiction statute apply to such a claim.

Question 9

Counterclaims

Answer 9

(1) A compulsory counterclaim is a claim by a defending party that arises out of the same transaction or occurrence as the claiming party’s claim, it must be brought in the current action or it is lost.
(2) A permissive counterclaim is unrelated to the pending litigation. It may be brought in the current action or separately.

Question 10

Prerequisites for Class Actions

Answer 10

Named parties will be permitted to sue on behalf of other unnamed parties when:

(1) there are common questions of law or fact
(2) the named party’s claims are typical of all
(3) there will be fair and adequate representation of all
(4) the action falls into one of three types:
a) Prejudice cases
b) Injunctive or declaratory relief on grounds applicable to all
c) Common questions predominate and combining is best method

Question 11

Service of Process

Answer 11

(1) A person may be given notice by:
a) By being personally handed the summons and complaint
b) By having the summons and complaint left at his usual place of abode with someone suitable age and discretion living there, or
c) By giving the summons and complaint to an authorized agent

(2) A corporation, partnership, etc., may be given notice by giving the summons and complaint to an officer or agent
(3) A request for waiver may be mailed to the defendant
(4) State rules apply – check them

Question 12

Rule 12 Motions to Dismiss

Answer 12

By motion, a defendant may raise:
a) Lack of subject matter jurisdiction
b) Lack of personal jurisdiction
c) Improper venue
d) Insufficient process or service of process
e) Failure to state a claim upon which relief can be granted
f) Failure to join a needed party
Personal jurisdiction, venue, and process defenses must be raised in the first answer or motion or they are waived. Subject matter jurisdiction is never waived. The others may be raised at any time prior to trial or at trial.

Question 13

Timing of Answer

Answer 13

(1) Must be presented within 21 days of service if no waiver.
(2) Must be presented within 60 days after the mailing of waiver of process.
(3) If a Rule 12 Motion is made and the court does not fix another time, the responsive pleading must be served within 14 days of the court’s denial or postponement of the motion.
(4) Unless an entry of default is made, the defendant may file it late.

Question 14

Scope of Discovery

Answer 14

May be had of any nonprivileged matter that is relevant to any party’s claim or defendant and proportional to the needs of the case, unless limited by the court.

Question 15

Initial Disclosure

Answer 15

Initially, a party must provide:

a) Contact details about persons likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment
b) Copies or descriptions of documents, ESI, and tangible things that are in the party’s control that the disclosing party may use to support his claims or defenses, unless solely for impeachment
c) Computation of damages with supporting documents
d) Copies of relevant insurance agreements.

Question 16

Supplementation of Discovery Disclosures

Answer 16

A party must timely supplement required disclosures and prior responses to interrogatories, requests for production, or requests for admissions if she learns that the information disclosed was materially incomplete or incorrect and the new information has not been made known to the other party in discovery or in writing. The duty to supplement also applies to an expert’s reports and information from any deposition of an expert.

Question 17

Expert Witness Discovery

Answer 17

(1) A party must disclose the identities of expert witnesses for trial
(2) If the expert witness has been specially retained or her duties as the party’s employee regularly involve giving expert testimony, a report by the expert witness stating (e.g., her qualifications, her opinions, and the basis for those opinions must be provided)
(3) Otherwise, no report is required and instead, the identity of the expert and a summary of the facts and opinions of the expert must be disclosed.

Question 18

Physical Exams

Answer 18

(1) May be required when a party’s physical or mental condition is in controversy.
(2) A court order is required on showing of good cause
(3) A suitably licensed or certified examiner are included
(4) The examinee does so, she must produce, on demand, copies of any other examinations of the same condition.

Question 19

Temporary Restraining Orders

Answer 19

(1) May be granted when necessary to prevent irreparable injury that will result before a hearing can be held.
(2) If possible, notice of the hearing for its issuance must be given, but a court may grant it without notice of the hearing if immediate and irreparable injury will result to the moving party, the moving party can show why notice was not given and should not be required, and a bond is provided.
(3) Effective for 14 days.

Question 20

Rules for Jury Trials

Answer 20

(1) Arises in any diversity “suit at common law” even though the state court would deny it.
(2) There must be at least six but no more than 12
(3) The “venier” must be a reasonable cross-section of the community
(4) Individual question will be asked in “voir dire”
(5) If a basis is revealed, a “challenge for cause” may be made
(6) At the close of the evidence, or sooner at the court’s direction, a party may file proposed instructions. Failing to object results in waiver.

Question 21

Summary Judgment

Answer 21

(1) May be granted in whole or in part if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.
(2) May be made any time until 30 days after close of all discovery unless a local rule or court order states otherwise.
(3) If premature, the court may defer ruling on the motion.
(4) The motion may be support or opposed with affidavits and discovery material.

Question 22

Judgment as a Matter of Law

Answer 22

(1) Is made when the evidence, viewed in the light most favorable to the nonmoving party and without considering the credibility of witnesses, is such that reasonable persons could come to only one conclusion.
(2) May be made by any party any time before submission of the case to the jury.
(3) The moving party must specify the judgment sought and the law and facts on which the party is entitled to judgment.
(4) May be granted only after the nonmoving party “has been fully heard” on the issue.

Question 23

Renewed Judgment as a Matter of Law

Answer 23

(1) Based upon a contention that reasonable jury could not have reached the verdict.
(2) Must be filed no later than 28 days after entry of judgment.
(3) The party making the motion must have made a prior motion during trial.
(4) May in theory raise only those issues raised in the prior motion.

Question 24

Motion for a New Trial

Answer 24

(1) Must be filed no later than 28 days after judgment is entered.
(2) Within that period, the court may order one on its own motion.
(3) May grant due to an error during the trial because the verdict is against the weight of the evidence, because of juror misconduct, or because the verdict is excessive or inadequate.

Question 25

Appeals of Judgment in Cases Involving Multiple Claims or Parties

Answer 25

(1) The court may enter a final judgment as to fewer than all of the claims or parties only on an express determination that there is no just reason for delay and an entry of judgment.
(2) Otherwise, an order determining the merits of fewer than all of the claims or dismissing fewer than all of the parties is not a final judgment and may not be appealed.

Question 26

Final Order Rule

Answer 26

(1) Order that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties but as to all causes of action involved.
(2) Only appealable order (subject to some exceptions).

Question 27

Interlocutory Appeals Act

Answer 27

(1) Review is discretionary and may be available.
(2) Trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation.
(3) A party may obtaining such a certificate from the trial judge must within 10 days, apply to the court of appeals where two out of three judges must agree to hear the appeal.

Question 28

Standards of Review of Appeal

Answer 28

(1) The appellate court may substitute its judgment for the trial judge’s on a matter of law.
(2) The trial judge’s finding of fact in a bench trial are reviewed on a “clearly erroneous” standard.
(3) A fact determination by the jury will be reviewed on a reasonable jury standard.
(4) A discretionary decision by the trial judge is reviewed on “abuse of discretion” standard.

Question 29

Claim Preclusion

Answer 29

Must be shown that:

a) The earlier judgment is a valid, final judgment “on the merits”
b) The cases are brought by the same claimant against the same defendant
c) The same “cause of action” is involved in the later lawsuit

Question 30

Issue Preclusion

Answer 30

(1) May be asserted only against someone who was a party to the previous case.
(2) Under the traditional “mutuality” rule, only someone who was a party (or in privity with a party) in the previous case use issue preclusion.
(3) Mutuality has been relaxed; nonparties may use (more frequently defensively rather than offensively).
(4) Fairness to party being bound will be considered.