Civil Procedure

Question 1

Whether P’s wife, who is not a party to action may serve D?

Answer 1

Yes, service of process may be made by any nonparty who is at least 18 y.o.

Question 2

Whether failure to submit proof of service will affect the validity of service?

Answer 2

Unless formal service is waived, a process server must submit proof of service to the court. The failure to make proof of service does not affect the validity of service.

Question 3

What is the standard for ruling on a motion to dismiss for failure to state a claim upon which relief can be granted?

Answer 3

The court must take all well-pleaded facts in the complaint as true and resolve all doubts and inferences in the complainant’s favor.

Question 4

When two Ps have claims against same D, and one P has claim of $5,000, can P with lesser claim come in?

Answer 4

Yes, supplemental jurisdiction as the claim arises out of the same T/O and common nucleus of operative facts, even though does not meet AIC requirement.

Question 5

What’s the standard for a motion for summary judgement?

Answer 5

A motion for summary judgment must be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

A genuine dispute of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party.

Must be made up to 30 days after close of discovery.

Question 6

When judge has 7 jurors and excuses two in civil context leaving 5 jurors?

Answer 6

A verdict must be unanimous and must be returned by a jury of at least six (6) members, unless parties stipulate otherwise. Challenger may move the court and win as less than six remain.

Question 7

What is collateral estoppel?

Answer 7

Also known as issue preclusion, precludes the real-litigation if issues of fact or law that have been determined as part of an earlier claim.

For example when court found toxin in bag from previous case, may use collateral estoppel (issue preclusion) to prevent Ds denial.

Question 8

When does the bulge provision apply?

Answer 8

Bulge provision applies when federal court has PJ over a party served in US. Applies to third-party defendants joined by impleader even when state law does not allow service.

Question 9

What’s the rule on filing suit against foreign persons?

Answer 9

A D who is not a resident of the US may be sued in any judicial district, even the judicial district of P. This is for venue purposes.

Question 10

What’s the standard for preliminary injunction? Whether preliminary injunction can be established when monetary relief available?

Answer 10

No. Preliminary injunction must establish:

(1) likelihood of success on merits
(2) likelihood to suffer irreparable harm in absence of relief
(3) equities in movants favor
(4) injunction invest interest of public.

Further whether monetary damages are available, if yes, no preliminary injunction.

Question 11

When P brings federal question lawsuit for discrimination, and seeks to bring in non related claim?

Answer 11

Non related claim may be joined only if (1) diversity jurisdiction exists OR (2) if two claims are part of the same C/C as federal claim

Question 12

What is a subpoena duces tecum?

Answer 12

A writ ordering a person to attend a court and bring relevant documents.

Question 13

Whether not denying damages is deemed admitted?

Answer 13

No, plaintiff’s complaint is generally deemed admitted if allegations is not denied, the same is not true for damages. No need to deny damages.

Question 14

What motion should be filed when new evidence surfaces 60 days after judgment?

Answer 14

Motion for relief must be filed within a reasonable time and no later than one year.

Motion for new trial must be filed no later than 28 days after the entry of judgment.

Question 15

When P sues D1 and P sues D2 on two separate claims?

Answer 15

The P may sue a third party but must fall under a court’s jurisdiction and relate to the same transaction or occurrence as original complaint. Claims by P can not be distinct; they must relate.

Question 16

When D fails to include lack of PJ in answer or 12(b) motion, may D amend?

Answer 16

A party may amend its pleading once as a matter of course within 21 days after serving it.

Question 17

What happens when P fails to appear?

Answer 17

If a plaintiff fails to prosecute his case and, in response to a defendant’s motion, the court dismisses the action, the dismissal is with prejudice and operates as an adjudication on the merits.

Question 18

What’s the rule on service of process?

Answer 18

Service of process may be made by any nonparty who is at least 18 y.o. even Ds family.

Federal rules permit service of process in accord with forum state AND where service made.

Question 19

What’s the rule on whether circuit appeals court may hear denial of class certification?

Answer 19

An appellate court may, but is not required to hear an immediate appeal of certification decision rendered by the district court. Must be heard in 14 days of entry of order.

Question 20

Whether order granting an injunction is appealable?

Answer 20

Yes as a matter of right, not precluded by final judgment rule.

Question 21

Where is venue proper?

Answer 21

Venue is proper where “substantial part of the events or omissions” occurred are located OR where all Ds RESIDE. Fallback is where PJ of any D.

Question 22

Amendment as of Right

Answer 22

Pleading may be amended as of right once within 21 days of serving OR if pleading requires responsive pleading within 21 days AFTER responsive pleading OR within 21 days after Rule 12 motion.

Question 23

Amendment Prior to Trial

Answer 23

After amendment as of right period expired, motion to amend must be made for court approval

Question 24

Relation Back of Amendments

Answer 24

Treat amendment as though dated on the date of the original filing if claims arise from the S T/O.

Question 25

Joinder of Claims of Parties

Answer 25

P may join any claims he has against the D in one suit EVEN IF unrelated to original suit. When action becomes complicated, may sever claims into separate suits.

Question 26

Permissive Joinder of Parties

Answer 26

A P may join P or D as long as same T/O AND common Q of law or fact

Question 27

Compulsory Joinder of Parties

Answer 27

Necessary parties must be in the interest of justice be joined to an action so long as the court has SMJ and PJ

Question 28

Federal Interpleader

Answer 28

Must be a FQ or Diversity b/w stakeholder and claimants. AIC must exceed $75K.

Question 29

What’s the jurisdiction requirement for Statutory Interpleader?

Answer 29

Under statute, there is J for Interpleader if: (1) diversity between claimants; AND (2) AIC is $500 or more. Service anywhere in U.S.

Question 30

Intervention as of right

Answer 30

1) right pursuant to federal statute OR
2) Claims interest relating to pending property at issue or transaction that is subject to litigation and disposing of action may IMPAIR or IMPEDE ability to protect interest

Question 31

Permissive Intervention

Answer 31

Upon timely motion may permit intervention for anyone who:

(1) conditional right to intervene by federal statute
(2) has claim or defense that shares w/ main action a common Q of law or fact

NEW PARTY MAY NOT DESTROY DIVERSITY

Question 32

When is discovery not permitted?

Answer 32

When doing so would be UNREASONABLY BURDENSOME.

Question 33

What discovery info must be initially disclosed to adverse party?

Answer 33

(1) contact info for persons with discovery info
(2) insurance information
(3) damage calculation

C I D

Question 34

Temporary Restraining Order

Answer 34

Party submit affidavit or complaint stating IMMEDIATE AND IRREPARABLE harm and attorney gave details of notice and why not required.

Question 35

What are the Rule 12(b) motions to dismiss?

Answer 35

SP/V/PPCJ

(1) lack of SMJ
(2) lack of PJ
(3) lack of venue
(4) lack of process
(5) lack of service of process
(6) failure to state claim upon relief can be granted
(7) failure to join party

Question 36

What is a pretrial conference?

Answer 36

Conference held w/in 120 days or serving the D OR w/in 90 days when D first appeared.

The function is to set schedules of discovery and other steps in litigation.

Question 37

What’s significant in ADR?

Answer 37

Can’t be used in civil rights claims.

Question 38

Claim preclusion

Answer 38

(1) Same parties
(2) Same claim: same T/O or substantially related
(3) Final judgment on merits, even if being appealed

Question 39

Issue Preclusion

Answer 39

Once issue actually and necessarily litigated in previous action, it is barred from re-litigation.

(1) Party precluded in case #2 was party in case #1;
(2) the issue was actually decided and “essential to the judgment” in case #1; and
(3) case #1 resulted in a valid final judgment on merits.

Question 40

JMOL and RJMOL

Answer 40

At D make at close of P case.

Court views evidence in light most favorable to nonmoving party finds reasonable jury could not find for nonmoving party

Question 41

Interlocutors Appeal

Answer 41

(1) partial final judgment
(2) writ of mandamus: party may ask appeals court to prohibit judge from taking action
(3) collateral order doctrine: procedural or technical matter unrelated to merits
(4) granting/refusal to grant injunctions
(5) critical questions of constitution or jurisdiction questions

Question 42

What are some affirmative defenses?

Answer 42

Fraud
Claim preclusion
Contributory negligence
SOF / SOL / SD

Question 43

Removal citizenship

Answer 43

When diversity action, and D seeks to remove and D is citizen of forum, may not remove.

When FQ action, D may remove without regard to citizenship when D is citizen of state.

Question 44

When have multiple Ps and one D, when one P does not meet the AIC, how can both come in?

Answer 44

Second P can use supplemental jurisdiction.

Question 45

Whether federal court able to hear additur claim?

Answer 45

A federal court is permitted to offer remittitur (a reduction in the damages), a federal court is not permitted to offer additur (an increase in the amount of damages) as the means by which the defendant can avoid a new trial.

Question 46

Traditional notions of fair play and justice?

Answer 46

(1) convenience of forum state by D
(2) whether forum state has legitimate interest in providing redress
(3) whether P’s interest in obtaining relief is proper
(4) interstate judicial system interest in efficiency
(5) shares interest in several states in furthering social policy

Question 47

When can federal court decline supplemental jurisdiction?

Answer 47

1) claim raises novel or complex issue of state law
2) claim predominates over claim or claims over which district has original jurisdiction
3) District court has dismissed all claims over which it has original jurisdiction
4) exceptional circumstances

Question 48

Limit of supplemental jurisdiction in diversity cases?

Answer 48

May bring claim that does not meet AIC as long as claim arises from common nucleus with original claim

However if added claims/parties would destroy complete diversity, court does not have supplemental jurisdiction over claims by plaintiff against 3rd parties

Question 49

When is default judgment appropriate?

Answer 49

When a party has failed to plead or otherwise defend an action, and that failure is shown by affidavit or otherwise, the court clerk must enter the party’s default.

Once a default is entered against a party, P may seek a default judgment. If the relief sought is a sum certain or an amount that can be made certain by computation, the default judgment can generally be entered by the court clerk on the plaintiff’s request, accompanied by an affidavit showing the amount due.

Question 50

When you withdraw twice, once in state court and then in federal court, can you file again?

Answer 50

If a plaintiff has voluntarily dismissed an action based on a claim without court approval, a subsequent voluntary dismissal of an action based on the same claim is a dismissal with prejudice and thus has preclusive effect. Double withdrawal bars plaintiff’s ability to file again. Applies in state or federal.

Question 51

When are additional jury instructions allowed?

Answer 51

A party can file a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court for such request

Question 52

Whether action may be brought in state where P resides in federal action?

Answer 52

An action against a federal officer or employee acting in an official capacity or under color of legal authority may be brought in the judicial district in which the plaintiff resides.

Question 53

When have two defendants, how many peremptory challenges do you have?

Answer 53

Court may allow six (6), three for each D.

Question 54

What’s a requirement for a federal statutory interpleader action?

Answer 54

In order to file a federal statutory interpleader action, the stakeholder must be willing to either deposit the property at issue with the court or to post a bond in an appropriate amount

Question 55

Whether a TRO or PI is immediately appealable?

Answer 55

Yes, TRO is immediately appealable. Preliminary injunction is appealable.

Question 56

A plaintiff filed an action against a defendant in federal district court. The complaint alleged that the defendant had infringed upon a trademark held by the plaintiff under federal law and sought $55,000 in damages. In addition, the plaintiff claimed damages of $30,000 allegedly attributable to the defendant’s negligence in causing an auto accident involving the two parties. The plaintiff and the defendant are citizens of different states. The defendant moved to dismiss the negligence claim for lack of subject matter jurisdiction. The court denied the motion.

Is the court’s ruling correct?

Answer 56

No, because neither diversity nor supplemental jurisdiction exists with respect to the negligence claim.

The negligence claim does not arise out of the same “common nucleus of operative fact” as the trademark infringement claim, so supplemental jurisdiction over the negligence claim would also not be appropriate.

Question 57

When you want to get former employee in?

Answer 57

A plaintiff may take an oral deposition of a nonparty witness, such as the former employee, as long as the nonparty is properly subpoenaed. By contrast, all of the other devices listed (interrogatories, physical exams, and requests for admission) can be used only against a party.

Question 58

What jurisdiction may a foreigner be sued in for venue?

Answer 58

A defendant who is not a resident of the United States may be sued in any judicial district. Because the jeweler is a resident of a foreign country, the jeweler may be sued in the federal district court for the district in which the buyer resides.