Civil Procedure

Question 1

Federal Question

Answer 1

well-pleaded complaint alleges a claim that arises under (1) federal law; (2) the US constitution; or (3) US treaties. ***Plaintiff must be enforcing a right, and raising a defense under federal law does NOT trigger jurisdiction

Question 2

Diversity of Citizenship

Answer 2

(1) complete diversity between plaintiffs and defendants and (2) amount in controversy over $75,000

Question 3

Citizenship

Answer 3

determined by domicile - for individuals, it is their residence and where they have an intent to remain; for corporations, it can be both the (1) principal place of business, and (2) state of incorporation

Question 4

Amount in Controversy

Answer 4

based on amount alleged in good faith complaint (not actual award); plaintiff can aggregate claims against ONE defendant or multiple if joint tortfeasors; for an injunction, the value is either the benefit ti plaintiff or cost of compliance for defendant

Question 5

Supplemental Jurisdiction

Answer 5

if court has original jurisdiction over some claims in action, it may exercise supplemental jurisdiction over additional state court claims when they arise out of same transaction or occurrence (claims arise from common nucleus of operative fact); court may DECLINE to exercise supplemental jurisdiction - it is discretionary

Question 6

Removal

Answer 6

defendant may remove case to federal court sitting in state where claim is filed if (1) federal court has subject matter jurisdiction; (2) all defendants agree; (3) no defendant is a resident of forum state if based on diversity jurisdiction; and (4) removal is sought within 30 days of either service of summons or receiving initial pleading

***EXCEPTION: domestic relations - federal courts must decline jurisdiction when case primarily involves domestic relations issues )divorce, alimony, child support, child custody)

Question 7

Abstention

Answer 7

Federal court may abstain from hearing a case when doing so would intrude upon powers of another court; may also stay a case arising from ambiguous state law

Question 8

Pullman Doctrine

Answer 8

federal courts have discretion to abstain from hearing cases that arise from unsettled areas of state law (highest state court should decide matter first - apply when federal court is presented with ambiguous state law and state court interpretation could eliminate need to interpret in federal court)

Question 9

Younger Doctrine

Answer 9

federal courts may abstain from hearing constitutional challenges to state action when doing so would interfere with state judicial proceedings

Question 10

Personal Jurisdiction

Answer 10

jurisdiction over the person (defendant)

Question 11

Long-Arm Statute

Answer 11

to exert PJ over defendant who is not a resident of forum state (1) forum state must have a long arm statute and (2) must meet requirements of due process

Question 12

Traditional Bases (Personal Jurisdiction)

Answer 12

(1) domicile; (2) presence in state when served; (3) consent; (4) waiver (appearing in court without objecting

Question 13

General Jurisdiction

Answer 13

defendant’s contacts with forum state are so substantial and of such nature that defendant is essentially at home in forum state (for an individual, it’s their domicile; for a corporation, it’s where they are incorporated or headquartered)

Question 14

Specific Jurisdiction

Answer 14

lawsuit arises out of or relates to defendant’s contacts with forum state; must be a connection between forum state and underlying controversy - defendant must have purposefully availed itself of benefits and protections of the forum state

Question 15

Fairness (Personal Jurisdiction)

Answer 15

must be fair and reasonable for defendant to be sued in forum state; burden is on defendant to show that it would be unreasonable (court considers (1) burden on defendant; (2) state’s interest in being forum state; (3) plaintiff’s interest in convenient forum; (4) interests of judicial system)

Question 16

Service of Process

Answer 16

summons and complaint must be served on defendant within 90 days of filing complaint; if NOT, court must either (1) dismiss action without prejudice against defendant OR (2) order that service be made within specified time (if plaintiff shows good cause for failure to serve within 90 days, court must extend time for service)

Question 17

Who Can Serve?

Answer 17

Any person who (1) is at least 18 years old AND (2) not a party to action

Question 18

Serving Individuals

Answer 18

delivering summons and complaint (1) to individual personally; (2) to someone of suitable age and discretion at individual’s current dwelling or usual place of abode; (3) to an agent authorized by appointment or by law to receive service; OR (4) in accordance with the state law of the forum state where service is made

Question 19

Serving Corporations

Answer 19

may be served (1) in accordance with state law of forum state; OR (2) by delivering summons and complaint to an officer, managing agent, or authorized agent of corporation

Question 20

Serving Foreign Defendant

Answer 20

any manner NOT prohibited by international agreement

Question 21

Proper Venue

Answer 21

venue is proper in any district where (1) any defendant resides, if all defendants reside the same state; (2) where a substantial portion of the claim occurred; or where a substantial part of the property is located; OR (3) if NONE of the first two ways are applicable, then venue is proper in any judicial district in which any defendant is subject to the court’s personal jurisdiction

Question 22

Transfer of Venue

Answer 22

you must first determine whether venue was proper or improper

Proper Venue - Transfer: court may transfer venue if (1) needed for convenience of parties and witnesses or interests of justice; AND (2) action could have initially been brought in the receiving court ***new court must apply same substantive law as original transferor court.

Improper Venue - Transfer: court must either (1) dismiss the case; OR (2) transfer the case to a proper court if the interest of justice require it ***law of the new transferee court applies

Question 23

Erie Doctrine

Answer 23

Applicability: federal case is brought under diversity of citizenship jurisdiction - a federal court will apply its own federal procedural laws, but must apply state substantive law

Procedural: civil procedure rules, statutes of limitations, burden of proof, and rebuttable presumptions

Substantive: choice of law rules, statute of frauds, irrefutable presumptions, damages, statute of limitations that condition a substantive right

***A federal court sitting in diversity MUST apply the forum state’s choice of law rules to determine the applicable state substantive law in the action, but federal law will apply for matters governed by the US constitution, laws passed by Congress, or valid federal law that preempts state law under the Supremacy Clause

Question 24

Injunctions

Answer 24

Preliminary Injunction: maintains status quo pending outcome of an action to protect irreparable harm to a party - court may issue preliminary injunction if (1) notice to adverse party AND (2) moving party gives security in an an amount the court deems proper

Test for Preliminary Injunction: (1) likelihood of success on the merits, (2) likely threat of irreparable harm to the movant, (3) harm alleged by the movant outweighs any harm to non-moving party, and (4) an injunction is in the public interest

Temporary Restraining Order (TRO): emergency remedy to maintain status quo (analyze the same factors as a preliminary injunction); a TRO can be issued ex party (without notice to opposing party) if can show (1) specific facts in sworn statement that show an immediate and irreparable injury, loss, or damage will result to movant before adverse party can be heard AND (2) certify in writing any efforts made to give notice to adverse party or why notice shouldn’t be required (expires after 14 days unless court holds otherwise)

Question 25

Amendment of Right

Answer 25

Every party may amend pleading once as of right within 21 days after service of the original pleading OR a responsive pleading/pre- answer motion

Question 26

Relation Back

Answer 26

Amendment to pleading relates back to date of original pleading when (1) amendment asserts a claim or defense that arises out of same conduct, transaction or occurrence as original pleading, OR (2) law provides the applicable statute of limitations allows for relation back

Question 27

Amendment to Change Party or Party Name

Answer 27

Only relates back IF (1) amendment concerns same conduct, transaction, or occurrence as the original pleading; (2) new party received notice of the original action within 90 days of filing; AND (3) new party knew or should have known that action could have been brought against it

Question 28

Counterclaims

Answer 28

Claim by defendant against plaintiff;

a COMPULSORY counterclaim must be stated in the pleading because it arises out of the same transaction or occurrence as opposing party’s claim AND the claim does not require adding another party whom the court cannot acquire jurisdiction over;

a PERMISSIVE counterclaim is any that is NOT compulsory

Question 29

Cross-Claims

Answer 29

claim against a co-party that arises out of the same transaction or occurrence

Question 30

Rule 11

Answer 30

all pleadings and papers served in litigation must be signed by an attorney of record or by party (if unrepresented); a signature implied that (1) it is not being presented for any improper purpose; (2) the claims, defenses, and other legal contentions are warranted and non-frivolous; (3) the factual contentions have evidentiary support to will have evidentiary support after discovery; AND (4) denials of factual contentions are warranted

***Sanction under Rule 11 may include paying a penalty to the court or paying reasonable costs and attorney’s fees

Question 31

Compulsory Joinder

Answer 31

party MUST Be joined to an action if (1) party is a necessary party AND (2) joinder is feasible

Question 32

Necessary Party

Answer 32

A party is NECESSARY if (a) the court cannot grant complete relief among existing parties without the absent party; (b) the absent party claims an interest in the action that would be impaired or impeded if person is not joined; OR (c) party’s absence would leave an existing party subject to a substantial risk of multiple liability or inconsistent obligations

Question 33

Feasible Joinder

Answer 33

Joinder is feasible IF (1) it will not remove subject matter jurisdiction AND (2) court has personal jurisdiction over necessary party ***If NOT feasible court will consider the following facts to either continue or dismiss the action - (a) prejudice of existing parties; (b) extent to which prejudice can be lessened or avoided; (c) whether adequate judgment in party’s presence is possible; and (d) whether plaintiff would have adequate remedy if action is dismissed

Question 34

Permissive Joinder of Plaintiffs

Answer 34

multiple plaintiffs may join in action IF (1) joint and several relief is asserted by them or claim arises out of same transaction or occurrence; (2) common question of law or fact similar to all plaintiffs exists; AND (3) subject matter jurisdiction is present for each claim

Question 35

Permissive Joinder of Defendants

Answer 35

multiple defendant MAY be joined in one action IF (1) joint and several relief is asserted against them or the claims arise out of the same transaction or occurrence (2) a common question or law or fact is present; and (3) subject matter jurisdiction exists for each claim

Question 36

Intervention as of Right

Answer 36

court MUST permit intervention as a matter of right if non-party demonstrates (1) application to intervene is timely; (2) interest in subject matter of action; (3) protection of interest would be impaired; and (4) non-party’s interest is non adequately represented by existing parties

Question 37

Permissive Intervention

Answer 37

Court may allow non-party to intervene when non-party (1) files timely motion AND (2) has either a claim or defense that shares a common question of fact OR is given conditional right to intervene by federal statute

Question 38

Impleader

Answer 38

defendant may bring third party action IF (1) third-party is or may be liable to defendant, (2) for all or party of a judgment against the defendant in the action

Question 39

Class Action Requirements

Answer 39

one or more representative members of a class may sue or be sued on behalf of entire class IF (1) class is so NUMEROUS that joinder of all members is impracticable; (2) there are questions of law and fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) representative parties will fairly and adequately protect interests of the class

Question 40

Class Action Certification

Answer 40

class will be certified IF (1) separate actions would create risk of inconsistent judgments or harm interests of other class members; (2) party opposing the class has acted or refused to act on grounds that apply generally to the class and relief would be appropriate to the class as a whole OR (3) common questions of law or fact to class exist and class action is superior to other available methods

Question 41

Scope of Discovery

Answer 41

any non-privileged information that is RELEVANT to party’s claim or defense and PROPORTIONAL to needs of the case

Question 42

Duty to Preserve Evidence

Answer 42

once person reasonably anticipates litigation, person has duty to preserve all relevant legal evidence and cannot destroy any evidence

Question 43

Depositions

Answer 43

can conduct up to 10 depositions | Can conduct deposition of any person or party so long as deposition is (1) limited to one day of no more than 7 hours AND (2) proper notice is given (must obtain leave of court to deviate)

Question 44

Electronically Stored Information (ESI)

Answer 44

party may be sanctioned for failing to preserve ESI if (1) ESI should have been preserved in anticipation of litigation; (2) party failed to take reasonable steps to preserve it; and (3) it cannot be restored or replaced through additional discovery - if party anticipates litigation, it must suspend routine document destruction policy

Question 45

Initial Disclosures

Answer 45

party must provide (1) individuals likely to have discoverable information; (2) copy or description of all documents or any information party will use to support its claims; (3) computation of each category of damages; and (4) insurance agreement that may be liable to satisfy claim

***Must be made within 14 days after Rule 26(f) conference; if failure to disclosure, party NOT allowed to use witness or information unless failure substantially justified or harmless

Question 46

Attorney Work Product

Answer 46

Protects all materials prepared by an attorney or his agents in anticipation of or during litigation; materials are protected UNLESS party can show that (1) a substantial need for material exists; AND (2) substantial equivalent of materials cannot be obtained without undue hardship

Question 47

Pre-Trial Conference

Answer 47

court may order attorneys and parties to appear for one or more pre-trial conference to control management of case - court will issue scheduling order and scheduling order can only be modified (1) for good cause AND (2) with judge’s consent

Question 48

Sanctions

Answer 48

Court may issue sanctions if attorney or party (1) fails to appear, (2) is substantially unprepared, (3) does not participate in good faith, or (4) fails to obey a scheduling order or other pretrial order ***A court may modify the Final Pretrial Conference Order only to prevent manifest injustice

Question 49

Motion to Dismiss

Answer 49

Requires court to (1) consider facts in light most favorable to non-moving party AND (2) determine whether there is any basis upon which relief can be granted for non-moving party

(grounds: lack of SMJ, lack of PJ, improper venue, insufficient process, insufficient service of process, failure to state a claim upon which relief can be granted, and failure to join necessary party)

***grounds 2-5 are waived if not in first responsive pleading or motion; motion for lack of SMJ can be made at any time

Question 50

Motion for Judgment on Pleadings

Answer 50

Motion for any non-waivable defense may be made at any time or early enough NOT to delay trial

Question 51

Motion for Summary Judgment

Answer 51

(1) no genuine issue of material fact AND (2) movant is entitled to judgment as a matter of law - court must view evidence in light most favorable to non-moving party (issue of material fact is genuine if reasonable jury could return a verdict for non-moving party; issue is material if disputes of fact might affect outcome of the suit)

***Party may move for summary judgment any time until 30 days after the close of all discovery

Question 52

Motion for Judgment as a Matter of Law (JMOL)

Answer 52

May be made at any time before the case is submitted to the Jury - will be granted if (1) non-moving party has been fully heard on an issue during trial AND (2) court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on that issue

***Court must draw all reasonable inferences in light most favorable to non-moving party

Question 53

Renewed Motion for JMOL

Answer 53

May renew motion only if that party moved for JMOL before case was submitted to jury and MUST be filed within 28 days of entry of judgment

Question 54

Motion for New Trial

Answer 54

Must be filed no later than 28 days after entry of judgment and may be granted if (1) there was an error at trial that makes judgment unfair; (2) new evidence; (3) prejudicial misconduct; (4) judgment was against weight of evidence; or (5) verdict was excessive/inadequate

Question 55

Default Judgment

Answer 55

Has preclusive effect if rendering court had jurisdiction over claims AND parties to action; state court MUST give a judgment rendered in a federal diversity action the same effect it would have in a state court under state law

Question 56

Claim Preclusion (Res Judicata)

Answer 56

(1) parties or identical or in privity; (2) judgment in the prior action was rendered by court of competent jurisdiction; (3) prior action was concluded by a final judgment on the merits; and (4) the same claim was involved in both actions (same transaction or occurrence)

Question 57

Privity (Claim Preclusion)

Answer 57

(1) party who agrees to be bound; (2) substantive legal relationship; (3) adequately represented in class action or by trustee, guardian, or other fiduciary; (4) assumed control; (5) proxy; (6) special statutory scheme (NOT CLOSE FAMILY RELATIONSHIPS)

Question 58

Issue Preclusion (Collateral Estoppel)

Answer 58

(1) valid final judgment was rendered in first action; (2) the issue is identical to issue decided in prior action; (3) issue was actually litigated, determined and essential in prior action and (4) a party against whom enforcement is sought against had a full and fair opportunity to litigate issue in first action

Question 59

Final Judgment Rule

Answer 59

Party may only appeal from a final judgment or decision - final judgment is one which ends the litigation on the merits; an appeal is precluded from any decision that adjudicates some but not all claims in the action

***Appeals must be filed within 30 days after entry of the judgement

Question 60

Exception - Rule 54(b)

Answer 60

appeal is allowed when (1) action has multiple parties or multiple claims; (2) court directs entry of a final judgment for some claims or parties; and (3) court expressly determines that there is no just reason for delay

Question 61

Statutory Exceptions

Answer 61

party may appeal immediately as of right relating to (1) injunctions, (2) receiverships, (3) orders impacting possession of property, (4) liability in admiralty action, and (5) patent infringement

Question 62

Certified Appeal Exception

Answer 62

immediate appeal is allowed when (1) federal court judge certifies certain grounds for immediate appeal AND (2) Court of Appeals agrees to permit appeal

***Must be made within 10 days after entry of order

Question 63

Collateral Order Doctrine

Answer 63

Allows immediate appeal when interlocutory order (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from merits of actions and (2) is effectively unreviewable on appeal from final judgment

Question 64

Writs of Mandamus

Answer 64

Where there is an abuse of judicial authority by trial court, party may seek a writ of mandamus to have federal appellate court review trial court’s ruling (cannot use for an ordinary error)