Civil Procedure

Question 1

SMJ

Answer 1

SMJ is the courts power to hear a case. In federal court, SMJ is based on either (1) federal question or (2) diversity of citizenship

Federal question = federal law

Diversity = citizens of different states and amount in controversy over $75,000

CA=
Unlimited = over $25k
Limited = over $7500
Small Claims = under $7500

Question 2

Personal Jurisdiction

Answer 2

Personal jurisdiction is a court’s power to have jurisdiction over the defendant.

The Traditional Basis of PJ

a. consent
b. domicile
c. presence
d. waiver

Question 3

Long arm statute

Answer 3

In order for a court to have PJ over a defendant who is not a resident of the state, the defendant must have minimum contacts with the forum.

1. systematic and continuous presence in the forum state
2. purposeful availment
3. foreseeable to be hauled into court
4. Relatedness

Question 4

Venue

Answer 4

Venue is proper in any district where

i. claim arose
ii. all defendants reside if all the defendants reside in the same state.

CA = where any defendant resides

Question 5

Supplemental Jurisdiction

Answer 5

Supplemental jurisdiction brings additional claims into a case that arise out of the same transaction or occurrence as the original claim. The supplemental claim could not stand in federal court alone.

• common nucleus of operative fact
• same transaction or occurrence

For cases based solely on diversity, plaintiff cannot use supplemental jurisdiction to overcome the diversity requirement but the defendant can through impleader.

Question 6

Removal/Remand

Answer 6

Removal = A defendant is allowed to remove a case to federal court if case could have been brought in either state or federal court. In diversity cases, the defendant may not remove to federal court if he is a citizen of the forum state The defendant must remove no later than 30 days after the 1st document is served. but never later than one year.

Remand = when removal of a case to federal court is improper, the plaintiff can request the case be remanded back to state court. must remand within 30 days or removal. No time limit if federal court doesn’t have SMJ.

Certain actions are not removable. A workers comp case cannot be removed to federal court, or VAWA, and railroad cases. ‘

Notice of removal must be filed in the federal district of the district state court where the action is pending. Ex: if State B has northern and southern district or state B, and the case was brought in northern district of state b, removal must be in the northern district of state B as well..

Question 7

Erie Doctrine

Answer 7

Federal court hearing a diversity claim must apply state substantive law to state law claims because the federal court has no authority to create law for the states. For procedural matters, federal court must use federal procedural law and they take precedence over contrary state law.

federal law alone governs and no erie problem if they are in court over a federal problem. If the court is not sitting in diversity and is exercising federal question jurisdiction, federal law will apply and there is no need to examine applicable state law.

Question 8

Response - Rule 12 and 12b defenses

Answer 8

A defendant must respond by motion or an answer within 21 days after service of process

Lack of PJ = 1st time or waived
Improper Venue = 1st time or waived
Insufficient Service of Process = 1st time or waived
Failure to State a claim = any time until trial is over
Lack of SMJ = never waived

Question 9

Amended Pleadings

Answer 9

A plaintiff has the right to amend once before the defendant responds. More than once needs consent from other party or leave of the court. Regardless if the other party has responded to a pleading a party can only amend once.

A defendnat has the right to amend once within 21 days of serving his answer

Question 10

Impleader

Answer 10

A defendant can add a 3rd party defendant in order to seek indemnity or contribution. Supplemental jurisdiction will apply

Question 11

Interpleader

Answer 11

A property holder forces all people who claim the property into a single lawsuit to avoid multiple suits. There are two types of interpleader, (1)statutory and (2) rule 22 interpleader. Interpleader allows for nationwide service of process.

Statutory Interpleader = requires only one claimant be diverse from one other claimant and the amount in controversy be over $500.

Rule 22 Interpleader =Property holder be diverse from every claimant and the amount in controversy be over $75,000

Question 12

Statutory Interpleader

Answer 12

requires that one of the claimant be diverse from one other claimant and the amount in controversy be over $500. Nationwide personal jurisdiction and venue is proper where any claimant resides.

Question 13

Rule 22 Interpleader

Answer 13

Property holder be diverse from every claimant and the amount in controversy be over $75,000

Question 14

Compulsory Counterclaim

Answer 14

Compulsory counterclaims arise from the same transaction or occurrence as the plaintiff’s claim and must be raised in the current case or waived. Cross claims are not compulsory.

Question 15

Permissive counterclaim

Answer 15

permissive counterclaims do not arise from the same transaction or occurrence and may be raised in the pending case or in a separate case
-no supplemental jurisdiction. This claim must have SMJ on its own

Question 16

Cross Claim

Answer 16

Cross claims against another defendant must arise from the same transaction or occurrence. Cross claims are never compulsory.

However, once a party has filed a cross claim, he may join with it ANY other claim that he has against the same party

EX: Defendant contract claim is unrelated to plaintiff’s negligence claim, however, defendants negligence cross claim is related to the plaintiffs cross claim therefore the contract claim can be asserted as well.

Question 17

Mandatory Disclosures

Answer 17

1. Initial Disclosures
   identify people with discoverable information about the claim or defense.
2. Expert Information if they are using the expert at trial
3. Pretrial Disclosures (a list of witnesses, documents and exhibits

Question 18

Physical or mental examination of a party

Answer 18

A court will order a physical or mental exam of a party’s physical or mental condition if at issue when there is a showing of GOOD CAUSE

Question 19

Summary Judgement

Answer 19

No genuine issue of material fact and entitled to judgement as a matter of law. A motion for summary judgement is only available within 30 days after the close of all discovery. An affidavit based on personal knowledge can be used to support or oppose a motion for summary judgment

Question 20

Judgment as a matter of law

Answer 20

If the court finds that no reasonable jury would have sufficient bases to find for the nonmoving party.

Question 21

Jury Demand

Answer 21

Plaintiff must demand in writing no later than 14 days after service of the last pleading

Question 22

Renewed JMOL

Answer 22

After a jury has reached a verdict, the moving party argues again that no reasonable jury would have enough evidence to find for the non-moving party. Must be filed within 28 days after judgement. Party is limited to those issues raised when they first tried to get it. A court that grants a RJMOL must also rule on any motion for a new trial. 2 steps in a JMOL. and a court must deny a motion for a new trial if the error was harmless and did not affect the parties substantial rights. just because there was an error doesn’t mean it will result in a new trial. New trials would be the rule rather than the exception if every time there was an error the person got a new trial. A new trial can be granted for giving unclear jury instructions.

Question 23

Motion for new trial

Answer 23

Must be filed within 28 days and there must be errors made. A motion for a new trial is granted because of an error during trial, because the verdict is aganist the weight of the evidence, because of juror misconduct or because the verict is inadequate.

Question 24

Motion to set aside judgment

Answer 24

Clerical errors or newly discovered evidence that could not have been discovered

Question 25

Remitter

Answer 25

Damages too high. Defendant will get a a new trial unless plaintiff agrees to reduce the award

Question 26

Additur

Answer 26

Damages too low. Plaintiff will get a new trial unless the defendant agrees to an increased award, Additur is unconstitutional in federal courts as a violation of the plantiff’s 7th amendment right to a trial by jury.

Question 27

Appeal

Answer 27

Appeals must be filed within 30 days of the final judgment. A TRO, is not immediately appealable because its so short, only 14 days. But a preliminary injunction is immediately appealable. Remand is considered a final order because it puts a litigant out of a particular court. Appellate review of remand is generally barred from appeal court except discretionary remands may be reviewed on appeal for abuse of discretion.

Question 28

Res Judicata (Claim preclusion)

Answer 28

Stops a claim that has already been litigated. Cant be used by someone not a party in the 1st action. Cant bind someone who hasn’t had their day in court yet.-

• final and valid judgment on the merits
• actually litigated
• same plaintiff and defendant
• same claim

Question 29

Collateral Estoppel (Issue Preclusion)

Answer 29

A judgment binds the plaintiff and or defendant in a subsequent action on issues actually litigated and essential to the judgment in the 1st action. With issue preclusion, the issue is deemed established in the second case without need to proffer evidence on it. When an issue or a claim was litigated in one action, and then reappears in a subsequent action, as a general rule, only parties and their privities present in the first action will be precluded from relithating the issue or claim. Thus a person who was not a party or in privity with a party in the first action will not be bound by preclusion and can re-litigate any issue or claim.

Issue that has already been decided in prior case

• valid and final judgment on the merits
• actually litigated
• issue essential to judgment
• previous party to case or has privity.

Question 30

Interlocatory Appeal

Answer 30

Interlocutory = “interrupt”. A party has the right to go to the appeals court before a final judgment/while the case is still being litigated for injunctions. The standard is very high. The order must be so wrong that irreparable harm will result. The trial courts decision would destroy a parties right and the issue will be unreviewable on appeal as the court will not be able to make a irreversible decision

Question 31

Dismissal for failure to join a party

Answer 31

Dismissal for failure to join a party does not operate as a adjudication upon the merits unless the court specifies that it does. Dismissal is not automatic when a party who should be joined cant be joined.

Question 32

Rule 11

Answer 32

Requires an lawyer who files a pleading or written motion to certify that they have evidentiary support or will likely get support after a reasonable opportunity for further investigation. Doesn’t apply to discovery requests.

A person cannot deny a allegation simply to avoid liability. Rule 11 requires that any denials be made in good faith based on the facts and the defendant must admit to any allegations that are true.

Question 33

Involuntary Dismissals (Adjudication upon the merits)

Answer 33

All involuntary dismissals except

1. lack of jurisdiction
2. improper venue
3. failure to join a party

operate as adjudication upon the merits unless the order says otherwise. Adjudication upon the merits stops a second action on the same claim

Question 34

Federal Law Question Defense

Answer 34

If a complaint is not based on federal law, but the defendant wants to use federal law as a defense, that defense alone will not create federal question jurisdiction. The federal question must appear in the well pleaded complaint.

Question 35

Final Judgments Against Several Parties

Answer 35

Until all claims against all parties are disposed of, there is no final judgment to appeal.

Question 36

Judgment Void

Answer 36

No matter how much time has passed since a judgment, a judgment can be marked as void. A clear lack of SMJ is a reason to void a judgment. There is no time limit

Question 37

Quasi in Rem

Answer 37

Attaching an item for judgment,the state attaching the item must have personal jurisdiction over the defendant.

Question 38

Jury Instructions

Answer 38

Generally a request for jury instructions must be made before or at the close of evidence. Parties may do so after the close of evidence if the court grants permission to do so which is untimely request.

Question 39

Domicile

Answer 39

Domicile requires the person to be

1. physically present in the state
2. intent to remain in the state

Question 40

Joinder of Parties = Compulsory Joinder

Answer 40

in certain situations a plaintiff must join all interested parties or face dismissal of the claim. The person is necessary

(1) wont be complete relief without the necessary party
(2) the absent party will be harmed if not joined

Joining the compulsory party CANNOT DESTROY DIVERSITY.

When joinder of parties or claims is an issue, look at PJ, SMJ and or Supplemental.

If the necessary party cant be joined the court can either (1) dismiss the case or (2) proceed without the necessary party. HOWEVER, IF COMPLETE RELIEF CANNOT BE PROVIDED IN THE NECESSARY PARTIES ABSENCE, THE CASE MUST BE DISMISSED.

Question 41

Judgment on Multiple Claims

Answer 41

A court can enter final judgment on fewer than all of the claims when a court expressly determines that there is no justifiable reason to delay entering the judgment. A person can appeal when there is a final judgment on one claim but other claims in the same suit remain if the court expressly determines that there is no just reason for delay.

Question 42

Producing Documents

Answer 42

The responding party bears the cost of producing producing documents of electronically stored information. A party who is required to produce documents can’t place a burden of identifying those documents on the party who requested them.

Question 43

Default Judgment

Answer 43

A default judgment is entered because the defendant did not oppose the case. If a party fails to plead or otherwise defend, the clerk must enter default judgment. If a person files a motion and then disappears, he is entitled to notice 7 days before a hearing.

Question 44

Which Jurisdiction Issue Preclusion Law Applies

Answer 44

Courts will apply the issue preclusion law of the forum whose court rendered the earlier judgment. If the earlier judgment came from a state court, the state issue preclusion law applies, under the faith and credit clause. If federal court, apply the preclusion law of the the state the federal court sits.

Question 45

Legal and Equitable Claims

Answer 45

Legal claims should be tried 1st by the jury and then equitable claims to the court. The jury’s findings on factual issues will bind the court in the equitable claim

Question 46

Work Product

Answer 46

A party can only get work product through a court order.

Question 47

Relation Back

Answer 47

In federal court an amendment to a complaint “relates back’” to the date the complaint was filed when the new action arises from the same transaction or occurrence as the original claim.

Question 48

7th Amendment

Answer 48

7th amendment provides the right to a jury trial but only in federal courts. The 7th amendment only applies to federal court and not state court. State law determines if a party has a right to a jury trial in state court.

Question 49

Appeals Court `

Answer 49

De novo = issue is a pure question of law. The appellate court will decide the issue from scratch.

Findings of fact= when the issue involves soley findings of fact and those facts were found by a jury, appeallate courts are very reluctant to reverse. A very high standard for reversing a jury’s findings.

Clearly erroneous = standard when reviewing the fact finding of a judge in a bench trial. appeals court must not set aside findings of fact made from the bench unless those findings were clearly erroneous.

Discretionary Rulings = evidentiary or discovery rules, appeallate courts will use the abuse of discretion standard of review.

Question 50

Joinder of Parties = Permissive Joinder

Answer 50

Plaintiffs and or defendants may be joined to an existing case if the claims arise

1. same transaction or occurrence
2. at least one common question between everyone.

Question 51

Service of Process

Answer 51

1. Personal Service - person other than the party to the case can personally serve the defendant or leave it at his house if someone over 18 and looks like they live there. If a corporation, can be left with an officer or agent at the business
2. Service by mail - A person can be served through certified mail with a copy of the complaint and a waiver

CA = if the summons isnt personally served to the defendant with reasonable diligence, can mail it certified mail to the defendant.

Service of Process rules on an international company

(1) based on governing international treaties OR
(2) via certified mail with a return receipt