Civil Procedure

Question 1

What are the two steps that must be satisfied in order to have personal jurisdiction?

Answer 1

1) Satisfy a statute (e.g. a long-arm statute), AND
2) Satisfy the Constitution (Due Process)

Same analysis for both state and federal court

Question 2

What is in personam jurisdiction?

Answer 2

Plaintiff wants to impose a personal obligation on defendant. Jurisdiction is over the person, not property, because of some contact between defendant and the forum state.

Question 3

Statutory analysis for personal jurisdiction:

Answer 3

State statutes allow PJ over ∆s who (1) are served with process in the state, or (2) are domiciled in the state, or (3) do certain things (e.g. commit a tortious act, conduct business) in the state. Simply mention that you need a statute.

Question 4

Constitutional analysis for personal jurisdiction:

Answer 4

Does defendant have such minimum contacts with the form so that jurisdiction does not offend traditional notions of fair play and substantial justice? Domicile, consent, or service of process in forum is a traditional base.

Question 5

Factors for determining minimum contacts

Answer 5

Contact: Must be relevant contact b/w defendant and forum state – (1) purposeful availment (∆’s voluntary act of reaching out to the forum) and (2) foreseeability (must be foreseeable that ∆ could be sued in the forum.

Relatedness: Plaintiff’s claim must be related to the contact (Q: Does π’s claim arise from ∆’s contact with the forum?)

Fairness: Jurisdiction must be fair and reasonable under the circumstances. Factors: convenience (witnesses, evidence – okay unless puts ∆ at severe disadvantage in the litigation), state’s interest (always relevant), π’s interest.

Question 6

What is the difference between specific and general jurisdiction?

Answer 6

If claim arose from ∆’s contact with the forum, court might uphold jurisdiction even if the ∆ does not have a great deal of contact with the forum. Where the claim is related to ∆’s contact with the forum, it is called specific personal jurisdiction. BUT if claim does not arise from ∆’s contact with the forum, then jurisdiction only okay if the court has general personal jurisdiction. If so, ∆ can be sued there for a claim that arose anywhere in the world. This requires continuous and systematic ties with the forum so that ∆ is essentially at home in the forum.

Question 7

Where is a human always essentially at home?

Answer 7

Where they are domiciled!

Question 8

Where is a business always essentially at home?

Answer 8

(1) Where formed and (2) Where it has its principal place of business. Can’t be based on sales or purchases; must have physical presence.

Question 9

What is subject matter jurisdiction?

Answer 9

The court’s power over the case. I.e. now we know that π will sue ∆ in a particular state. But in what court in that state – state or federal.

Question 10

What are the two requirements for diversity of citizenship cases?

Answer 10

1) The case is either (a) between citizens of different states, or (b) between a citizen of a state and a citizen of foreign country, and
2) The amount in controversy EXCEEDS $75,000.

Question 11

Who are citizens of different states (i.e. the complete diversity rule)?

Answer 11

No diversity if ANY plaintiff is a citizen of the same state as ANY defendant.

Question 12

How id citizenship determined for a natural person?

Answer 12

It is by their domicile – presence AND intent to make it their permanent home

Person can only have one. We test for diversity when the case is filed.

Question 13

How is citizenship determined for a corporation?

Answer 13

Corporate citizenship equals (1) State where incorporated AND (2) the one state where the corporation has its principal place of business (where its managers direct corporate activities – it’s “nerve center”).

Question 14

How is citizenship determined for an unincorporated association?

Answer 14

Use the citizenship of all members.

Question 15

How is citizenship determined for decedents, minors, or incompetents?

Answer 15

Use THEIR citizenship, not the citizenship of their representative.

Question 16

Amount in controversy requirement

Answer 16

Plaintiff’s good faith claim must exceed $75,000 (not counting interest on the claim or costs of litigation). Whatever plaintiff claims in good faith is okay unless it is clear to a legal certainty that she cannot recover more than $75,000 (rare). What plaintiff ultimately ends up with is irrelevant. Plaintiff may aggregate claims.

Question 17

When is aggregation not allowed?

Answer 17

When it is not a single plaintiff against a single defendant. But, a plaintiff may sue joint tortfeasors, and in such joint claims, we use the total value of the claims.

Question 18

What is the test for determining whether equitable relief meets the amount in controversy requirement?

Answer 18

If either of the following is met, court says it’s ok:

(1) Plaintiff’s viewpoint: does the blocked view decrease the value of plaintiff’s property by more than $75,000?
(2) Defendant’s viewpoint: would it cost defendant more than $75,000 to comply with the injunction?

Question 19

What cases are excluded from federal jurisdiction under diversity of citizenship?

Answer 19

Federal courts will not hear actions involving issuance of divorce, alimony or child custody decree or to probate an estate.

Question 20

Removal jurisdiction

Answer 20

A ∆ sued in state court might be able to remove the case to federal court. Removal can only be done from a state trial court to a federal trial court. If removal was improper, federal court can remand to state court.

Question 21

When may a case be removed?

Answer 21

Within 30 days after service of the first paper that makes the case removable. ONLY DEFENDANTS CAN REMOVE. ALL defendants served with process must join.

Question 22

What kind of cases can be removed?

Answer 22

General rule: one that would the requirements for diversity of citizenship or federal question.

Question 23

What are the exceptions to removal in diversity of citizenship cases?

Answer 23

1) No removal if any defendant is a citizen of the forum state (in-state defendant rule) and
2) No removal more than one year after case was filed in state court (unless federal judge finds that plaintiff acted in bad faith to prevent removal).

Question 24

What is the Erie Doctrine?

Answer 24

A federal court in a diversity case must apply state substantive law.

Question 25

The three steps for the Erie Doctrine:

Answer 25

1) Ask: is there a federal law on point that directly conflicts with state law? If so, apply the federal law as long as it is valid (Supremacy Clause)
2) If there is NO federal law on point, ask is the issue (a) elements of a claim or defense, (b) statute of limitations, (c) rules for tolling SOL, and (d) conflict of law rules. These are substantive – must follow state law.
3) If there is no federal law, and the issue is not an easy one, but federal judge wants to ignore state law – if issue is substantive, must follow state law. Three tests to come to a reasonable conclusion.

Question 26

The three tests to determine whether, under the third prong, state substantive law will apply?

Answer 26

(1) Outcome determinative? Would applying or ignoring the state rule affect outcome of case? If so, probably substantive, so use state law.
(2) Balance of interests: does either federal or state system have strong interest in having its rule applied?
(3) Avoid forum shopping: if federal court ignores state law on issue, will it cause parties to flock to federal court? If yes, probably apply state law.

Question 27

Venue – what is the basic idea?

Answer 27

Venue tells us exactly which federal court.

Question 28

Where may a plaintiff lay venue?

Answer 28

In a district where:

All defendants reside (if ∆s reisde in different districts of same state, π can lay venue in district in which one of them resides) or
A substantial part of the claim arose

Question 29

Where do defendants reside for venue purposes?

Answer 29

Humans – in districts where domiciled.

Corporations – in all districts where subject to personal jurisdiction for this case.

Question 30

When may a federal district court transfer venue?

Answer 30

A federal district court may transfer venue. It can only transfer to a district where case could have been filed – i.e. to a proper venue that has personal jurisdiction over defendant.

Exception: Court can transfer to any district at all if the parties consent and it finds cause for the transfer.

Question 31

What does the court consider in transferring a case?

Answer 31

If original district is proper, that court has DISCRETION to transfer to another district, based on convenience for the parties and witnesses and the interests of justice.

Factors: public and private factors showing that the other court is center of gravity – public: what law applies, jury service burden on community, keep local controversy in local court; private: convenience (location of parties/witnesses).

Question 32

Forum non conveniens

Answer 32

Another court far more sensible than the present one but instead of transferring, the court dismisses or stays the case because transfer is impossible. Based on public and private factors.

FNC is almost never granted if plaintiff is resident of the present forum. The other court must be adequate.

Question 33

What is service of process?

Answer 33

Plaintiff must deliver to defendant: (1) a summons (formal court notice of suit and time for response) and (2) a copy of the complaint.

Question 34

Who can serve process?

Answer 34

A non party who is at least 18 years old.

Question 35

How is process served?

Answer 35

1)Personal service (give to ∆ personally anywhere), or 2) substituted service (give to butler at ∆’s home - okay if ∆’s usual abode and served on someone of suitable age and discretion who resides there) or 3) service on ∆’s agent (w/in scope of agency) or 4) methods approved by state law of state where federal court sits or where service effected.

Question 36

What is Rule 11?

Answer 36

Requires attorney or pro se party to sign all pleadings, written motions and papers. When signed, certify that to beest of knowledge and belief, after reasonable inquiry: (1) Paper is not for an improper purpose, (2) Legal contentions are warranted by law (or nonfrivolous argument for law change, and (3) That factual contentions and denials of factual contentions have evidentiary support (or are likely after further investigation).

Question 37

What happens if the opposing party violates Rule 11?

Answer 37

You can serve the Rule 11 motion on them, but you can’t file it. Party in violation has a safe harbor of 21 days in which to fix the problem and avoid sanctions. If not, then motion can be filed. Court can raise it sua sponte, but must give chance to be heard.

Question 38

What does a complaint require?

Answer 38

1) Statement of grounds of subject matter jurisdiction,
2) Short and plain statement of the claim, showing entitled to relief (plead facts supporting a plausible claim);
3) Demand for relief sought

Question 39

What three matters must be plead with particularity and specificity?

Answer 39

Fraud, mistake, and special damages.

Question 40

When must ∆ answer a complaint?

Answer 40

Within 21 days of service of process, with either a motion or by answer.

Question 41

What are the Rule 12(b) defenses?

Answer 41

(1) Lack of subject matter jurisdiction
(2) Lack of personal jurisdiction
(3) Improper venue
(4) Insufficiency of process (problem w/ papers)
(5) Insufficient service of process
(6) Failure to state a claim
(7) Failure to join a dispensable party

Can be either in motion or in answer. # 2, 3, 4, and 5 are waivable (must be put in the FIRST Rule 12 response [answer or motion] or else waived.

Question 42

What do you do in your answer?

Answer 42

Respond to allegations of complaint (admit, deny, state you lack sufficient info to admit or deny).

Raise affirmative defenses (e.g. SOL, Statute of Frauds, res judicata, self-defense). ∆ must plead affirmative defenses or risk waiver.

Question 43

What are the two types of counterclaims?

Answer 43

Compulsory – arises from same T/O as plaintiff’s claim. MUST be filed in the pending case, or waived. The claim cannot be asserted in another action.

Permissive – does not arise from same T/O as plaintiff’s claim. You may file it with your answer in this case or can assert it in a separate case.

Question 44

What is a crossclaim?

Answer 44

This is a claim against a co-party. It must arise from same T/O as the underlying action. The crossclaim is permissive; you don’t have to file it in the case.

Question 45

What about amending pleadings?

Answer 45

Plaintiff has a right to amend once within 21 days after defendant serves her first Rule 12 response. Defendant has a right to amend once within 21 days of serving his answer. If there is not right amend, seek leave of court; it will be granted if justice so requires. Courts look at delay, prejudice, and futility of amendment.

Question 46

What is a variance in the civil procedure context?

Answer 46

It is where the evidence at trial does not match what was pleaded. Defendant must object.

Question 47

What about an amendment of the pleading after the statute of limitations has run?

Answer 47

Amended pleadings relate back if they concern the same conduct, transaction or occurrence as the original pleading. So it can avoid a statute of limitations problem.

Question 48

Discovery – what are required disclosures?

Answer 48

Disclosures of materials that must be produced even though no one asks for it (e.g. initial disclosures, experts who may be used at trial, pretrial disclosures).

Question 49

Discovery tools

Answer 49

May not be used until after Rule 26(f) conference unless court order or stipulation allows.

Depositions – can depose party or nonparty (if nonparty not subpoenaed then not compelled to attend) – limited to 10 and one per person unless court order

Interrogatories – written questions to another party

Requests to produce – to another party (or nonparty if accompanied by subpoena)

Request for admission – ask a party to admit the truth of any discoverable matters.

Question 50

What information can be obtained through discovery?

Answer 50

Anything relevant to a claim or defense. Relevant in this context is broader than in evidence. It includes things that are reasonably calculated to lead to discovery of admissible evidence.

Cannot discover communications protected by privilege.

Question 51

What is a “work product?”

Answer 51

These are materials prepared in anticipation of litigation, and are generally protected from discovery.

Can be discoverable if substantial need and it is not otherwise available. BUT it is absolutely protected if they are mental impressions, opinions, conclusions, and legal theories.

Doesn’t have to be generated by a lawyer. It can be a party or any representative of a party.

Question 52

How does a party claim privilege or work product?

Answer 52

Must do so expressly and particularly describe the materials. Can do this in a document that lists the document by date, author, recipient, privilege, etc. called a privilege log.

If you inadvertently produced protected material, notify other party ASAP. They other party then has to return, sequester, or destroy it pending decision by court about whether there has been a waiver.

Question 53

Three main ways discovery orders are presented to court

Answer 53

1) Protective Order (e.g. request is overburdensome, requires disclosure of trade secrets, etc.)
2) Partial violation – receiving party answers some and objects to others (if objections not upheld, then partial violation, light sanction)
3) Total violation – receiving party fails to attend deposition, etc., then total violation, and heavy sanction.

Question 54

When may two parties sue together (joinder)?

Answer 54

When their claims arise from same T/O AND they raise at least one common question. They may sue common defendants for the same reasons.

Question 55

Who is a necessary and indispensable party to the litigation?

Answer 55

An absentee who meets any of these tests:

a) Without them, a court cannot accord complete relief among existing parties (w/o multiple suits)
b) Absentee’s interest may be harmed if he isn’t joined (practical harm); or
c) Absentee claims an interest which subjects a party (usually defendant) to a risk of multiple obligations.

Question 56

How do you know if a party CAN be joined, once you’ve determined that they are necessary?

Answer 56

Ask: is the joinder feasible? Court decides whether party is a plaintiff or a defendant and asks if (1) there is personal jurisdiction over him and (2) if joining him will not make it impossible to maintain diversity. If feasible, brought in.

If can’t be brought in, court either proceeds w/o party or dismisses case (alternative forum? Actual likelihood of prejudice? Can court shape relief to avoid that prejudice?)

Question 57

What is impleader?

Answer 57

A defending party wants to bring in someone new (a third-party defendant) because TPD may owe indemnity or contribution to the defending party on the underlying claim.

There is a right to implead w/in 14 days of serving answer; after that, need court approval.

Question 58

What are the steps for impleading in a pending case?

Answer 58

1) File third-party complaint naming third party as a third party defendant; and
2) Serve process on TPD (ergo must have PJ over TPD)

After TPD is joined, π may assert claim against TPD if it arises from same T/O as underlying case, and vice versa.

Question 59

What is intervention?

Answer 59

Absentee wants to join a pending suit. She chooses to come in either as π or ∆. The court may realign her if it thinks she came in on the “wrong” side. Application to intervene must be timely.

Question 60

What are the four initial requirements for a class action?

Answer 60

Must demonstrate:

(1) Numerosity – too many class members for practicable joinder;
(2) Commonality – There are some questions of law or fact in common to the class;
(3) Typicality – Representative’s claims/defenses typical of those of the class; and
(4) Representative adequate – The class representative will fairly and adequately represent the class

Question 61

After initial four requirements for class action have been met, what is the next step?

Answer 61

Must fit the can w/in one of three types:

(1) Prejudice: class treatment necessary to avoid harm either to class members or to non-class party
(2) Injunction or declaratory judgment (not damages) sought because class was treated alike by other party (e.g. employment discrimination)
(3) “Damages” (a) Common questions PREDOMINATE over individual questions, and (b) class action is the superior method to handle the dispute (e.g mass tort)

Court must decide at an early practicable time whether to certify case to proceed as C/A – also appoints class counsel

Question 62

Who is bound by a judgment in a class action?

Answer 62

All members except those who opt out of a Type 3 (mass tort)

Question 63

When can parties settle or dismiss a certified class action?

Answer 63

Only with court approval. Court gives notice to class members to get their feedback on whether case should be settled or dismissed. If Type 3, court might give extra chance to opt out.

Question 64

Whose citizenship is important for determining diversity of citizenship in a class action case?

Answer 64

Only the class rep – rep’s claim must exceed $75,000.

Question 65

What must be shown to win a summary judgment motion?

Answer 65

Movant must show (1) no genuine issue of material fact, and (2) that movant is entitled to judgment as a matter of law. Must move w/in 30 days of close of discovery. Can be partial. Court looks at evidence. Court views evidence in light most favorable to nonmoving party.

Question 66

What gives the right to a jury trial in federal court?

Answer 66

The Seventh Amendment preserves the right to jury “in civil actions at law” not suits at equity. If case involves both, jury decides the facts underlying the damages claim, but not the equity claim.

Must demand the jury in writing no later than 14 days after service of last pleading raising triable issue.

Question 67

What is a motion for JMOL?

Answer 67

A motion requesting that the moving party is entitled to judgment as a matter of law – the standard for granting is that reasonable people could not disagree on the result. It takes the case away from the jury. Can only be brought after other side has been heard at trial. Evidence is viewed in light most favorable to nonmoving party.

Question 68

What is a RJMOL?

Answer 68

A renewed motion for judgment as a matter of law – comes up after trial. If granted, court enters judgment for the party that lost the jury verdict. Must move within 28 days after entry of judgment. Same standard as JMOL. Party bringing RJMOL must have moved for JMOL at trial.

Question 69

What is the “Final Judgment Rule”

Answer 69

It states that as a general rule, a party can appeal only from final judgments, which means an ultimate decision by the trial court on the merits of the entire case. File notice of appeal in trial court within 30 days after entry of final judgment.

Question 70

What is the basic idea of preclusion?

Answer 70

Whenever there has been an earlier case, watch for issues which concern the preclusive effect of a prior judgment on the merits. The question is whether a judgment already entered precludes litigation of any matters in another case.

Question 71

What is res judicata (claim preclusion)?

Answer 71

Requirements: Case 1 and Case 2 were brought by same claimant against same defendant. Case 1 ended in valid, final judgment on the merits. Case 1 and Case 2 asserted the same claim (Maj. view: claim is any right to relief arising from a T/O. Min. view: there are separate claims for property damage and for personal injuries because those are different primary rights).

Question 72

What is collateral estoppel (issue preclusion)?

Answer 72

Narrower than res judicata, it precludes relitigation of a particular issue litigated and determined before. That issue is deemed established in second action, so it cannot be relitigated.
Requires: Case 1 ended in valid, final judgment on merits. The same issue was ACTUALLY litigated and determined in Case 1. Issue was essential to judgment in Case 1. W/o this issue, the judgment in Case 1 would have been different. Can only be asserted against somebody who was party to Case 1 OR represented by a party to Case 1.