Civil Procedure

Question 1

If you are filing for removal, what is the time frame you have to file notice?

Answer 1

Notice must be filed within 30 days of the initial pleading.

Question 2

If the case was not removable at the start but amended that makes it removable, what is the time frame you have to file notice?

Answer 2

Notice must be filed within 30 days of service of the amended pleading.

Question 3

If you are filing for removal based on diversity jurisdiction, what is the time frame you have to remove the case?

Answer 3

It may not be removed more than one year after the commencement of the action.

Question 4

If a case has multiple defendants, when is the latest the defendants may file for removal?

Answer 4

Within 30 days of the last defendant who was served. All defendants must join in the removal.

Question 5

If the Plaintiff believes the case was improperly removed, when must the motion for remand be made?

Answer 5

It must be made within 30 days of filing the removal notice.

Question 6

If a motion to remand is based on the lack of subject-matter jurisdiction, when must the plaintiff move?

Answer 6

Subject matter jurisdiction issues are not subject to any time limit since such an objection can never be waived.

Question 7

What are the five ways a court may exercise in personam jurisdiction?

Answer 7

-Residency
-Consent
-Service
-Minimum contacts
-Substantial business

Question 8

What is needed to establish minimum contacts?

Answer 8

-Defendant mut have establish a minimum contact with the forum state,
-The claim against the defendant must be related to that contact, and
-The exercise of jurisdiction must not offend traditional notions of fair play and substantial justice.

Question 9

What will a court look at to determine minimum contacts?

Answer 9

Looks at the nature of the defendant’s relationship with the forum state and whether the defendant would have reasonably expected to be haled into the forum state court.

-D must “purposefully avail” itself to the privilege of conducting activities within the forum state. Receives the benefits and privileges of that state’s laws.

Question 10

Substantial Business

Answer 10

Very high bar to clear
The business must be so significant that the company, though not incorporated or headquartered in the state, is “essentially at home” there.
-there must be a connection between the forum and the underlying controversy
-even regularly occurring sales of a product in a state do not justify the exercise of jurisdiction over a claim unrelated to those sales.

Question 11

What are the requirements of In Rem Jurisdiction?

Answer 11

(1) There must be real or personal property of value;
(2) The property must be located within the state where the federal district is located;
(3) The court must seize the item (the court’s jurisdiction over the real or personal property cannot begin until the court has effective control over the asset); and
(4) The owner of the property must have received proper notice.

Question 12

What are the requirements for Quasi In Rem Jurisdiction?

Answer 12

(1) There is real or personal property of value located within the state or territorial limits of the federal court;
(2) The defendant owns the property;
(3) The property is being attached or seized; and
(4) The defendant has been provided proper notice of the proceedings.

Question 13

What must a Plaintiff do to commence an action?

Answer 13

(1) File the complaint with the court
(2) After the complaint is filed, the plaintiff presents a summons to the clerk for signature and seal.
(3) Service must occur within 90 days of the filing of the complaint

Question 14

What must a summons include? (6 elements)

Answer 14

(1) Be signed by the clerk
(2) Identify the court and the parties
(3) Be directed to the defendant
(4) State the name and address of either the plaintiff’s attorney or the plaintiff themselves (if unrepresented)
(5) Notify the defendant of the time period within which it must appear or file an answer and the potential for default judgment if the defendant fails to appear within the time specified
(6) Contain the seal of the court

Question 15

Service of Process-Natural Person

Answer 15

(1) Personally delivering the process to the defendant himself, wherever he may be;
(2) leaving process at the defendant’s usual place of abode with a person of suitable age and discretion who resides there; or
(3) serving the defendant’s registered agent.

Question 16

Service of Process-Corporation, Partnership, or Association

Answer 16

Process can be served by delivering a copy of the summons and the complaint to:
(1) an officer;
(2) a managing agent or general agent; or
(3) any other agent authorized by appointment or by law to receive service of process.

Question 17

Where is venue proper?

Answer 17

(1) The district in which any defendant resides, if all of the defendants reside in the same state;
(2) The district where a substantial portion of events occurred; or
(3) The district in which any defendant would be subject to personal jurisdiction, if there is no other district in which the action could be brought.

Question 18

When may a transfer of venue occur?

Answer 18

If an action was brought in a proper venue, a federal court still may transfer the action to any other district in which it might have been brought, “for the convenience of parties and witnesses, in the interest of justice.”

Question 19

Forum non Conveniens

Answer 19

The doctrine allows a court to decline to exercise its jurisdiction and dismiss an action if the court where the action was brought would be a seriously inconvenient forum and an adequate alternative forum exists.

Question 20

When does the Erie doctrine apply?

Answer 20

The Erie doctrine applies only where the following are both present:
(1) the court has diversity or supplemental jurisdiction over a case; and
(2) the state law that would apply conflicts with the federal rule, statute, doctrine, or procedure at issue.

Question 21

A pleading that state a claim for relief must contain what?

Answer 21

(1) A short and plain statement on the grounds upon which the court’s jurisdiction rests and a statement of a claim, which, if true, would entitle the claimant to relief; and
(2) a demand of relief.

Question 22

What must a defendant do in a responsive pleading?

Answer 22

A responding party must admit or deny the allegations made against it by an opposing party. A party must plead certain affirmative defenses in its answer or reply to a counterclaim.

Question 23

What affirmative defenses must be plead in a responsive pleading?

Answer 23

-Accord and satisfaction
-Arbitration and award
-Assumption of risk
-Contributory negligence
-Duress
-Estoppel
-Failure of consideration
-Fraud
-Illegality
-Injury by fellow servant
-Laches
-Licenses
-Payment
-Release
-Res judicata
-Statute of Frauds
-Statute of limitations
-Waiver

Question 24

Objections that may be raised either by motion or responsive pleading

Answer 24

-Lack of subject matter jurisdiction
-Lack of personal jurisdiction
-Improper venue
-Insufficient process
-Insufficient service of process
-Failure to state a claim upon which relief can be granted
-Failure to join a party under FRCP 19

Question 25

When may a party amend a pleading as a matter of course?

Answer 25

(1) If it is within 21 days of service of the original pleading; or
(2) If the pleading requires a response, within 21 days after service of a responsive pleading or 21 days after services of a motion to dismiss, a motion for a more definite statement, or a motion to strike, whichever is earlier.

Question 26

Doctrine of Relation Back

Answer 26

The court will treat an amendment to a pleading as though it had been filed with the original pleading.

Question 27

What are the two types of provisional relief?

Answer 27

(1) Temporary restraining orders (TROs)-emergency situation
(2) Preliminary injunctions

Question 28

What must a party establish to obtain a TRO or a preliminary injunction?

Answer 28

(1) a substantial likelihood of success on the merits;
(2) Irreparable harm will be suffered unless the remedy sought is issued;
(3) The harm to the plaintiff if the TRO or preliminary injunction is denied is greater than the harm to the defendant if the remedy is granted; and
(4) the provisional remedy, if granted, will not be adverse to the public interest.

Question 29

Compulsory Counterclaim

Answer 29

A compulsory counterclaim is one that arises out of the same transaction or occurrence as the original claim in the lawsuit.
-A failure to raise a compulsory counterclaim waives the right to assert the claim in the original action or in any other action.

Question 30

Permissive Counterclaim

Answer 30

A permissive counterclaim is any claim that a party has against an opposing party that does not arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim.
-a party is not required to assert a permissive counterclaim.

Question 31

Cross-claim

Answer 31

A claim against a party who is not an opposing party.

A cross claim must either have an independent basis for jurisdiction or arise out of the same transaction or occurrence as the original claim or counterclaim.

Question 32

When must a party be joined?

Answer 32

A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if:
(1) in that party’s absence, the court cannot grant complete relief among existing parties; or
(2) the party claims an interest relating to the subject of the action, and an adjudication without the party may, as a practical matter, impair or impede that party’s ability to protect his interest, or leave an existing party subject to substantial risk of incurring double, multiple, or otherwise inconsistent obligations.

Question 33

Interpleader

Answer 33

Used where a plaintiff has some holding that would expose the plaintiff to multiple liability from adverse claims. Can commence an action for interpleader to resolve liability where there are two or more adverse claimants.
-Interpleader is only applicable where multiple claims demand the same thing or obligation-usually, a piece of property, prize or most commonly the proceeds of an insurance policy.

Question 34

What are the requirements of a class action?

Answer 34

-Numerosity: The number of members of the class is so numerous that separate joinder of each member is impracticable.
-Commonality: The legal and factual issues are common to those raised by each member of the class.
-Typicality: The claims or defenses of the representative party are typical of those raised by each member of the class.
-Adequacy of Representation: The representative party can fairly and adequately protect and represent the interest of each member of the class.

Question 35

When must a discovery planning conference take place?

Answer 35

As soon as practicable but at least 21 days before a scheduling order is issued.

Question 36

What must the parties do during the discovery conference?

Answer 36

(1) Discuss the nature and basis of their claims and defenses and the possibilities of timely settling or resolving the case;
(2) Make or arrange for the mandatory disclosures required by Rule 26(a)(1);
(3) Discuss any issues about preserving discoverable information; and
(4) Develop a proposed discovery plan.

Question 37

When must a written report of the proposed discovery plan be submitted to the court?

Answer 37

Within 14 days of the discovery conference.

Question 38

A party is entitled to demand the discovery of any matter that is:

Answer 38

(1) Relevant to the claim or defense of any party;
(2) Not unreasonably cumulative or burdensome; and
(3) Not privileged

Question 39

What do mandatory disclosures include?

Answer 39

(1) Information about individuals likely to have discoverable information and a copy or description of all documents that the disclosing party may use to support its claims or defenses;
(2) The total damages claimed by the disclosing party with supporting materials;
(3) Insurance agreements; and
(4) The identity of any witness that may testify at trial.

Question 40

How many depositions may a party take as a matter of right?

Answer 40

10

Question 41

What is the limit on the number of interrogatories per party?

Answer 41

25 interrogatories.

Remember interrogatories may only be served on parties to an action.

Question 42

When may a physical or mental examination be performed?

Answer 42

-When a party’s condition is in controversy, a physical or mental examination may be requested.
-The court requires a showing of “good cause” for the examination.

Question 43

When does a default judgment occur?

Answer 43

An entry of default must be entered on behalf of a party against whom a judgment for affirmative relief is sought when the party has failed to plead or otherwise defend the claim and that failure is shown by affidavit or otherwise.

Question 44

When may a default judgment be entered by the clerk?

Answer 44

If the plaintiff’s claim is for a sum certain, upon the plaintiff’s request and with an affidavit showing the amount due, the clerk must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing.

Question 45

When must a jury trial be demanded?

Answer 45

The demand for a jury trial must be made within 14 days after the service of the last pleading directed to the triable issue.

Question 46

How many peremptory challenges are given to each party?

Answer 46

In federal court, each party may exercise three peremptory challenges to excuse jurors without having to state the reason before the court.
-peremptory challenges may not be used to exclude jurors on the basis of race or gender.

Question 47

12(b)(6) Dismissal

Answer 47

A court will dismiss a complaint under 12(b)(6) if the complaint:
-fails to state a cognizable claim;
-provides insufficient facts; or
-contains an allegation that negates one or more elements of the cause of action.

These dismissals are with prejudice unless stated otherwise.

Question 48

Dismissal for Failure to Prosecute

Answer 48

If a plaintiff fails to prosecute her action or to comply with the Federal Rules or a court order, a defendant may move to dismiss.

A dismissal for failure to prosecute is a dismissal with prejudice, unless stated otherwise.

Question 49

Summary Judgment Motions

Answer 49

Summary judgment will be granted if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Question 50

Motion for Judgment on the Pleadings

Answer 50

After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings under Rule 12(c).

Question 51

Motion for a more definite statement

Answer 51

A responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.
The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired.
-If the order for a more definite statement is not met within 14 days, the court may strike the pleading or issue any other appropriate order.

Question 52

Judgment as a Matter of Law (JMOL)

Answer 52

The evidence will be viewed in the light most favorable to the non-moving party to determine whether the movant is entitled to prevail as a matter of law.
-Must be made during the trial

Question 53

Renewed Motion for Judgment as a Matter of Law

Answer 53

Within 28 days after the return of the verdict, a party who has timely moved for JMOL may serve a motion to set aside the verdict.
-If a judge finds that no reasonable jury could interpret the evidence presented as supporting the verdict, a judge may grant the party against whom the judgment was rendered JMOL.

Question 54

Motion for a New Trial

Answer 54

Motions for a new trial are generally appropriate in the following instances:
-in order to avoid an inevitable appeal and reversal if the trial judge has committed reversible error;
-when a jury verdict is so excessive as to demonstrate that the jury has misunderstood its duty or has acted with extreme prejudice;
-if evidence of jury misconduct exists, and FRE limits judicial inquiry to external influences on the deliberation process; or
-when the verdict is against the clear weight of the evidence

Question 55

Remittitur

Answer 55

A motion for remittitur asks the judge to reduce the award of damages that are excessive. Federal courts will routinely grant motions for remittitur.

Question 56

Additur

Answer 56

A request for an increase in the award of damages.
Additur is unconstitutional in federal court.

Question 57

Relief from a Judgment or Order

Answer 57

The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.

Question 58

Claim Preclusion (res judiciata)

Answer 58

Prevents relitigation of a claim or all claims:
(1) between the same parties and those who are in privity with them;
(2) arising out of the same transaction or occurrence; and
(3) that were determined on the merits by a court with proper subject matter and personal jurisdiction.

Question 59

Issue Preclusion (collateral estoppel)

Answer 59

Prevents relitigation of issues that were fully and fairly litigated, and were necessarily decided in a proceeding that reached a final judgment on the merits.
-issue preclusion may NOT be used against someone who was not a party to the previous action
-may be used offensively by one who was not a party to the first action against one who was a party in the earlier suit.

Question 60

When may an interlocutory order be appealed?

Answer 60

Appellate review is authorized for an interlocutory order rendered by a trial judge that:
(1) conclusively determine the disputed question;
(2) resolves an important issue completely separate from the merits of the action; and
(3) Is effectively unreviewable on appeal from a final judgment