Civil Procedure- General

Question 1

Subject Matter Jurisdiction-

Subject Matter Jurisdiction CAN/CANNOT be WAIVED.

Answer 1

CANNOT

Question 2

Subject Matter Jurisdiction- An objection to SMJ can be presented by ______ Party at ______ Stage of the proceeding.

Answer 2

ANY

ANY

Question 3

Subject Matter Jurisdiction- Can be raised on ________ and may be raised by the ________ .

Answer 3

APPEAL

COURT

Question 4

Define: Personal Jurisdiction.

Answer 4

The power of the court to decide the rights and liabilities of THIS DEFENDANT.

Question 5

Define: Subject Matter Jurisdiction.

Answer 5

The power of the court to decide THIS KIND OF CASE.

Question 6

Subject Matter Jurisdiction:

A lack of SMJ can be raised by _______ Party at ________Time, including by the PLAINTIFF.

Answer 6

ANY

ANY

Question 7

Subject Matter Jurisdiction can be brought for the _________ time on ________ .

Answer 7

FIRST

APPEAL

Question 8

Federal Question Jurisdiction- exists for a claim that arises under _________ law.

Answer 8

FEDERAL

Question 9

Federal Question Jurisdiction- Well-Pleaded Complaint.

The PLAINTIFFS claim MUST be based on a FEDERAL law. Presence of a federal defense does not matter. If the claim arises under _______ law there can be no federal jurisdiction. This was a situation which occurred in the ________ case.

Answer 9

STATE

MOTTLEY

Question 10

Diversity Jurisdiction:

1. Cases between citizens of a ________ or citizens of a state and foreign ________, if the amount in controversy EXCEEDS
2. $ __________ exclusive of interests and costs.

Answer 10

STATE

COUNTRY

$75,000 (needs to be MORE than this- claims at $75,000 exactly or less do not count.

Exceptions: Probate and Domestic Relations cannot be brought in federal court under diversity jurisdiction.

Question 11

Diversity Jurisdiction: The diversity statute requires _________ Diversity. This means: Every _________ on the PLAINTIFFS side of the case MUST be different than every __________ on the DEFENDANTS side of the case.

Answer 11

COMPLETE

CITIZENSHIP

CITIZENSHIP

Question 12

Diversity Jurisdiction: COMPLETE diversity does NOT mean:

EVERY _________ must be diverse from every other PLAINTIFF or that the _________ must be diverse from every other DEFENDANT.

Answer 12

PLAINTIFF

DEFENDANT

Question 13

Diversity Jurisdiction: Diversity must only be complete as between _________ and __________ .

Answer 13

PLAINTIFFS

DEFENDANTS

Question 14

Diversity Jurisdiction: Define: “Minimal Diversity” (the only exception to the complete diversity requirement).

1. Exists when any ________ is diverse from any ________ .
2. Permitted in the following circumstances: Federal ___________ Act, Class Action Claims more than $ ___________, and Interstate Mass _______ .

Answer 14

PLAINTIFF DEFENDANT (this is important to note- occurs when ANY TWO adverse claimants are diverse from eachother)

INTERPLEADER

$5 Million 5,000,000

TORTS

Question 15

Diversity Jurisdiction: When does the court determine diversity?

Answer 15

When the complaint is FILED.

• Diversity does NOT need to exist when the cause of action arose (at the time of the accident)
• Diversity does NOT matter if diversity NO LONGER EXISTS at the time of trial. As long as the parties were diverse when the claim was FILED it will be valid.

Question 16

Diversity Jurisdiction: T/F-Diversity will be determined at the time the cause of action arose (the time of the accident/event giving rise to the injury).

Answer 16

FALSE!

DETERMINED WHEN COMPLAINT FILED!

Question 17

Diversity Jurisdiction: T/F-Diversity will be determined at the time of trial.

Answer 17

FALSE!

DETERMINED WHEN COMPLAINT FILED!

Question 18

Diversity Jurisdiction: How is citizenship established?

Individuals
Aliens
Representative Parties

Answer 18

Individuals- Citizen of the state or county where DOMICILED. Domicile is PERMANENT RESIDENCE + INTENT TO REMAIN INDEFINITELY.

Aliens-Diversity EXISTS for disputes between a citizen of a state and a citizen of a foreign country.

Representative Parties- Citizenship of the REPRESENTATIVE PARTY controls (trustees citizenship in a trust situation).
Exception: Decedents domicile in a WIll/Executor
Exception: Incompetents domicile in a DPOA situation.

Question 19

Diversity Jurisdiction: How is citizenship established?

Class Actions
Corporations
Partnerships

Answer 19

Class Actions- Citizenship of the NAMED PARTIES counts.

Corporations-

1. The STATE, STATES, or COUNTRIES in which it is INCORPORATED.
2. the STATE or COUNTRY of its PRINCIPLE PLACE OF BUSINESS (PPB).

Partnerships- Citizen of EVERY STATE where its members are citizens.
-this applies to all partnerships to include unions, trade associations, partnerships, and limited partnerships.

Question 20

Diversity Jurisdiction: T/F: Actions that CREATE or DESTROY Diversity are permitted.

Answer 20

TRUE- as long as they’re not “shams” or fraudulent.

Question 21

Diversity Jurisdiction: Name some Actions that permissibly CREATE Diversity.

Answer 21

1. MOVING- this will be permitted even if it was DONE WITH THE PURPOSE OF AFFECTING DIVERSITY, so long as the change in domicile is genuine and NOT a sham.
2. ASSIGNMENT of a claim- permitted so long as the assignment is COMPLETE and REAL not collusive.
   note: partial assignment of a claim for debt collection- does NOT affect citizenship if the assignor retains an interest in the claim.
   
   • Assignors citizenship will count for purposes of diversity.

Question 22

Diversity Jurisdiction: T/F: the $75,000 requirement will still be a jurisdictional basis in claims which do not concern diversity.

Answer 22

FALSE.

Question 23

Diversity Jurisdiction: The amount in controversy must EXCEED $________ ; and _____ ______ allegation will suffice regarding how the party got to the amount.

Answer 23

$75,000

GOOD FAITH

Question 24

Diversity Jurisdiction: Aggregation (adding up smaller claims to meet the Amount in Controversy [AIC])

One Plaintiff vs. One Defendant- Plaintiff can ________ all his _______ to meet the AIC requirement.

One Plaintiff vs. Multiple Defendants- if the defendants are _________ liable, plaintiff can ________ all his claims (defendants are treated as one).

Otherwise, Plaintiff CANNOT ________ his claims against multiple defendants;

claim against EACH defendant must _________ AIC requirement.

Answer 24

AGGREGATE CLAIMS

JOINTLY AGGREGATE

AGGREGATE

MEET

Question 25

Diversity Jurisdiction: Multiple Plaintiffs- General Rule– Each plaintiffs claims must meet the _______ requirement.

Exception- See: Supplemental Jurisdiction

Answer 25

AIC

Exception- See: Supplemental Jurisdiction

Question 26

Diversity Jurisdiction-Aggregation:

Supplemental Jurisdiction: If one Plaintiff has a claim exceeding $75,000, the claims of additional plaintiffs CAN be heard if ALL of the claims:

1. Arise out of the same ____________ OR ___________ ;

and

2. ___________ __________ is maintained.

Answer 26

TRANSACTION OR OCCURENCE;

COMPLETE DIVERSITY

Question 27

Diversity Jurisdiction-Aggregation:

Supplemental Jurisdiction: If a plaintiff has a claim based SOLELY on diversity jurisdiction against ONE defendant exceeding $75,000, the plaintiff can _______ Claims against other defendants ONLY IF:

1. __________ _________ is maintained, AND;
2. the claims against EACH DEFENDANT Exceed $___________ .

Answer 27

JOIN

COMPLETE DIVERSITY

$75,000

Question 28

MOST TESTED QUESTION OF CIVPRO ON BAR EXAM-

Does a Counterclaim in a diversity action have to meet the jurisdictional minimum of $75,000+ ?

_______ if the counterclaim is COMPULSORY

_______ if the counterclaim is PERMISSIVE

Answer 28

NO

YES

Question 29

Supplemental Jurisdiction: Allows a federal court with subject matter jurisdiction (SMJ) over a case to hear ________ claims over which the court would not INDEPENDENTLY have jurisdiction if:

ALL the claims constitute the SAME _________ ___ __________ .

Answer 29

ADDITIONAL

CASE OR CONTROVERSY

Question 30

Supplemental Jurisdiction: Claims Constitute the same “Case or Controversy” if they ARISE OUT OF A __________ ___________ OF ____________ FACT.

Answer 30

COMMON NUCLEUS OF OPERATIVE FACT

This means the same transaction or occurrence.

Question 31

Supplemental Jurisdiction-Federal Question: Can a FEDERAL court hear related STATE law claims?

Answer 31

The SAME TRANSACTION OR OCCURRENCE NUCLEUS OF COMMON FACT

1. Federal and State law claims against one Defendant
   
   • If the two claims share a common nucleus of operative fact the federal court MAY hear the state law claim under supplemental jurisdiction.
2. Federal claim against defendant A and a related state law claim (arising out of the same transaction or occurence) against defendant B.
   - The federal court MAY hear BOTH the federal claim against A and the state law clam against B. This is called “pendant party” jurisdiction.

Question 32

Diversity Jurisdiction: Counterclaim (Heavily Tested)

What is a counterclaim and will a federal court in diversity be able to hear a counterclaim through its supplemental jurisdiction?

Answer 32

Definition: A counterclaim is a claim for relief made against an opposing party AFTER an original claim has been made.

Compulsory Counterclaim- a federal court in diversity HAS JURISDICTION over a compulsory counterclaim.

• Compulsory Counterclaim- one arising out of the SAME TRANSACTION OR OCCURRENCE as the main claim.
• Can be heard in a diversity action REGARDLESS OF THE AMOUNT.

Question 33

Diversity Jurisdiction: Counterclaim (Heavily Tested)

Will a federal court in diversity be able to hear a Permissive counterclaim through its supplemental jurisdiction?

Answer 33

Permissive Counterclaim: A counterclaim that DOES NOT arise out of the same transaction or occurrence as the main claim.

-Can only be hear if it INDEPENDENTLY satisfies diversity jurisdiction (complete diversity+ $75,000+)

Question 34

Diversity Jurisdiction: Cross-claims

Whats a cross-claim? Can a federal court sitting in diversity hear a cross-claim?

Answer 34

Cross-Claim: A clam made against a CO-PARTY.

1. Supplemental Jurisdiction applies to cross-claims
2. Cross-CLaim and main claim must share a COMMON NUCLEUS OF OPERATIVE FACT.
3. co-plaintiffs and co-defendants are NOT REQUIRED to be diverse from eachother.
4. The cross-claim itself DOES NOT need to meet the AIC of $75,000+

Question 35

Multiple Plaintiffs/Permissive Joinder/Class Action:

If the claim of one diverse plaintiff against Defendant A satisfies the jurisdictional amount, other diverse plaintiffs who have related claims against Defendant A sharing a ________ _______ of _________ FACT (Same transaction or occurrence) can also be heard even if their claims ___ ________ satisfy the jurisdictional amount.

Answer 35

COMMON NUCLEUS OF OPERATIVE

DO NOT

Question 36

Supplemental Jurisdiction will NOT be permitted:

What does “Supplemental Jurisdiction will NOT be permitted” mean?

Answer 36

Means these additional claims/parties can be brought into a diversity action only if the additional claims MAINTAIN COMPLETE DIVERSITY and EXCEED $75,000.

Question 37

Supplemental Jurisdiction will NOT be permitted for the following claims unless they maintain COMPLETE DIVERSITY and exceed $75,000+

• Claims by Plaintiff’s against _________ Third Party Defendants.
• Claims by plaintiffs against _________ ________ joined as necessary parties.
• Claims by Plaintiff __________ .
• Claims by Plaintiff’s joined ___________ .

Answer 37

IMPLEADED

ADDITIONAL DEFENDANTS

INTERVENORS

INVOLUNTARILY

Question 38

Summary

1. Supplemental Jurisdiction works for ______ FEDERAL QUESTION cases.
2. Works in DIVERSITY cases for: (i) _________ counter-claims, (ii) ___________ , (iii) Voluntary ________ of Plaintiffs (whether in or out of a class action) when there is _________ Diversity with all named plaintiffs, when _____ of them has a claim exceeding $75,000, and ALL claims arise out of the SAME TRANSACTION OR OCCURRENCE.
3. _________ Jurisdiction establishes the courts power to hear additional claims; whether the court exercises that power is up to its _______ __________ based on the practicalities of the case.

Answer 38

1. ALL
2. COMPULSORY CROSS-CLAIMS JOINDER

COMPLETE

ONE

3. SUPPLEMENTAL SOLE DISCRETION

Question 39

Removal Jurisdiction: What is it?

Answer 39

“Removal moves a case from STATE COURT to FEDERAL COURT.”

Question 40

Removal Jurisdiction: What is Transfer?

Answer 40

Transfer moves a case from FEDERAL COURT to another FEDERAL COURT.

Question 41

Removal Jurisdiction: Removal is proper only if the case COULD HAVE ________ BEEN BROUGHT IN FEDERAL COURT.

Answer 41

ORIGINALLY

Question 42

Removal Jurisdiction: T/F- only PLAINTIFFS can remove.

Answer 42

FALSE- only DEFENDANTS can remove a case from Federal Court.

All Defendants MUST CONSENT to removal.

Question 43

Removal Jurisdiction: Case had to come within the ___________ jurisdiction of the ________ court.

Answer 43

ORIGINAL

FEDERAL

Question 44

Federal Question jurisdiction exists ONLY WHEN the federal question appear on the _________ of the WELL-PLEADED COMPLAINT.

Answer 44

FACE

Question 45

If the PLAINTIFFS claim is based on STATE law, the DEFENDANT __________ remove even though the defendant has a federal _________ .

Answer 45

CANNOT

DEFENSE

Question 46

Removal jurisdiction based on DIVERSITY is proper ONLY IF:

1. there is ________ diversity
2. The amount in controversy EXCEEDS _________ .
3. The action is brought in a state of which no __________ is a citizen.

***NOTE- must remove within _____ YEAR of the commencement of the action in STATE court.

Answer 46

COMPLETE

$75,000

DEFENDANT

** ONE

Question 47

What can the PLAINTIFF do if the DEFENDANT improperly removes the case to federal court?

Answer 47

File for REMAND

Question 48

Personal Jurisdiction: As between the parties, questions of PJ always concern the __________ .

Answer 48

DEFENDANT

Question 49

Personal Jurisdiction: Federal Courts generally rely on the ______ - ____ _________ of the states in which they sit.

Answer 49

Long-Arm Statutes

Long-Arm Statutes: This is the chief means of asserting PJ over out-of-state DEFENDANTS.

Question 50

Personal Jurisdiction: What are the TWO QUESTIONS which MUST be answered in every PJ issue?

1. Has the basis for exercising PJ over a out-of-state DEFENDANT been ________ by STATUTE OR RULE OF COURT?
2. Is the PARTICULAR BASIS for exercising PJ permitted by the _ _ _____________?

Answer 50

AUTHORIZED

U.S. CONSTITUTION

Question 51

Personal Jurisdiction: Constitutional Considerations:

1. Due Process requires-

Minimum _______ (is it fair)

__________ Availment

Answer 51

Contacts

-Consistent with notions of “fair play and substantial justice”

Purposeful

-Courts look for the defendants use of the protections of the state law.

Question 52

Personal Jurisdiction CAN/CANNOT be WAIVED.

Answer 52

CAN

Question 53

Personal Jurisdiction: A DEFENDANT _______ PJ BY VOLUNTARILY LITIGATING ON THE MERITS _______ raising that objection.

Answer 53

WAIVES

BEFORE

Question 54

Personal Jurisdiction: A DEFECT in PJ MUST be raised at the FIRST OPPORTUNITY or it is ________ .

The FIRST OPPORTUNITY is: a pre-answer ______ __ ______ OR must be raised in the _________ .

Answer 54

WAIVED

MOTION-TO-DISMISS

ANSWER

Question 55

Personal Jurisdiction: When can FEDERAL courts assert BROADER PJ than the limits of the Long-Arm Statutes of the states in which they sit?

1. Federal Interpleader Act- Authorizes ________ Service of Process.
2. The BULGE Provision of the Federal Rules- Allows service aanywhere within _______ Miles of the federal courthouse, even if in another state, in TWO situations:

a. for IMPLEADING Third-______ ________
b. for joining __________ Parties

Answer 55

NATIONWIDE

100

a. Third-Party-Defendants
b. Necessary Parties

Question 56

Personal Jurisdiction: Name the Types (3)

Answer 56

1. In-Personam
2. In-Rem
3. Quasi In-Rem

Question 57

Personal Jurisdiction: In-Personam (define types)

General In-Personam

Specific In-Personam

Answer 57

General In-Personam- Defendant can be sued on ANY CLAIM WHATSOEVER, even if it is UNRELATED to the DEFENDANTS contacts with the forum state.

Specific In-Personam- the LONG-ARM STATUTE; only applies when the dispute ARISES OUT OF THAT CONTACT WITH THE FORUM.

Question 58

Personal Jurisdiction: General In-Personam (Basis)

1. _________ Presence
2. ________ __ ________ While defendant physically present in the state. (see: Exceptions here)
3. _________ (independent of physical presence)
4. _________- express or implied/in-state agent/contract
5. Corporation
   a. The state of _________ .
   b. The ________ Place _____ __________ .

Answer 58

1. PHYSICAL
2. SERVICE OF PROCESS
3. DOMICILE
4. CONSENT
5. a. INCORPORATION
   b. PRINCIPLE PLACE OF BUSINESS
   “Simply ‘doing business’ (ie: a branch office/interactive website) in the state is NOT ENOUGH when the claim is WHOLLY UNRELATED to that in-state activity”

Question 59

Personal Jurisdiction: Specific In-Personam (Basis)

1. EVERY state has a ______-__ Statute
2. Jurisdiction is specific to the IN-_______ Activity

Answer 59

LONG-ARM

STATE

Question 60

Personal Jurisdiction: State Long-Arm Statutes

ALMOST EVERYTHING is covered by a states long-arm statute, so long as the claim ________ out of the __________ involving that state.

Answer 60

ARISES

TRANSACTION

Question 61

Service of Process: In General

This is the service of a ________ on a DEFENDANT while he/she is PRESENT in the Jurisdiction.

Service of Process establishes Defendants PHYSICAL __________ in the jurisdiction and provides _________ of the action.

Answer 61

SUMMONS

PRESENCE

NOTICE

Question 62

Service of Process: The type of service used to ASSERT IN-PERSONAM jurisdiction over a Defendant is called __________ _________.

Answer 62

PERSONAL SERVICE

Question 63

Service of Process: Service on a Corporation-

Can be made to:

1. Officer
2. Director
3. _________ agent
4. Agent ________ for receiving Service of Process.

Answer 63

3. MANAGING

4. APPOINTED

Question 64

Service of Process: Service can be had on a Non-Resident Motorist for Claims arising out of IN-STATE ACCIDENTS by-

Service on a ______ _________ who __________ a copy to the out-of-state DEFENDANT.

Answer 64

STATE OFFICIAL

FORWARDS

Question 65

Venue:

If Venue is improper, a DEFENDANT must make a timely objection at the ______ _________ or it is _________ .

Answer 65

FIRST OPPORTUNITY

**A pre-answer MTD or the ANSWER if no MTD is made

WAIVED

Question 66

Venue:

1. Proper where ANY Defendant resides, if ______ Defendants reside in the ________ State.
2. Proper where the ________ _______ i.e., where a __________ ______ of the events or omissions” on which the claim is based occured OR Where a “SUBSTANTIAL PART of the ________” that is the subject of the action is located.

Answer 66

1. ALL SAME
2. CLAIM AROSE

“SUBSTANTIAL PART

PROPERTY

Question 67

Venue:

T/F: For FEDERAL venue the PLAINTIFFS residence does NOT count.

Answer 67

TRUE

Question 68

Venue: Where does the DEFENDANT reside?

For INDIVIDUALS- Residence means _________ .

For Business Entities- Residence means EVERY DISTRICT in which ________ _________ exists.

Answer 68

DOMICILE

PERSONAL JURISDICITON

Question 69

Venue: for a case begun in state court and REMOVED to federal court, venue is _______________ proper in the federal district where the state court sits, even if that district would not have been proper originally.

Answer 69

AUTOMATICALLY

Question 70

Venue

General rule: transfer is only to a district with ___________ venue.

exception: transfer to a district without proper venue may occur when __________ parties agree.

Answer 70

PROPER

ALL

Question 71

Venue

Choice of Law: Erie Doctrine

In a diversity case, a federal court applies state ________________ law.

Federal Procedure will apply.

What are the two common applications of Erie?

Answer 71

Substantive
* usually follow precedent from highest state court.

1. If the choice of the procedure would be outcome determinative (change the result), the federal court should usually apply state law to prevent FORUM SHOPPING.
2. The rule of the JURY in FEDERAL court is entirely controlled by federal law.

Question 72

Pleadings

What are the types of pleadings?

1. ____________
   a. Claims against co-party __________.
   b. defendant can file a ______ ________ complaint to implead a third-party defendant
2. ___________
   a. Filed by opposing ___________
   b. May contain….
3. ___________

Answer 72

Pleadings

What are the types of pleadings?

1. Complaint
   a. Claims against co-party, called a cross-claim.
   b. defendant can file a third-party complaint to implead a third-party defendant.
2. Answer
   a. Filed by opposing party
   b. May contain responses to the allegations of the complaint, affirmative defenses, counterclaims.
3. Reply
   a. Used by the plaintiff to answer a counterclaim.

Question 73

Pleadings

Notice requirements?

-all that is required is a short and _________ statement of the claim.

Answer 73

PLAIN

Question 74

Pleadings

Which claims require a special pleading?

1.

2.

Answer 74

1. Fraud or mistake

2. Special damages

Question 75

Motions

Defense motions against the complaint:

1. Motion to __________
2. Motion for judgment on the ____________
3. Motion for more definite _____________
4. Motion to ________

Answer 75

1. Dismiss
2. Pleadings
3. Statement
4. Strike

Question 76

Motions

Motion to Dismiss- may be used to raise:

1. Lack of __ __ ___
2. Lack of __________ ____________
3. Improper _________
4. Failure to state a _________
5. Failure to join a necessary _________
6. Forum non-____________

Answer 76

1. Lack of SMJ
2. Lack of Personal Jurisdiction
3. Improper Venue
4. Failure to state a claim
5. Failure to join a necessary party
6. Forum non-conveniens

Question 77

Motions

T/F: lack of subject matter jurisdiction cannot be waived.

Answer 77

TRUE

Question 78

Motions

Answer

May contain:

1. Responses- failure to respond:________
2. Affirmative ____________

-must be served within _______ days of service of the pleadings to which it responds.

Answer 78

1. Is an ADMISSION- which will be binding in the action.
2. DEFENSES
   - defenses which require NOTICE
   * * basically, any defense that has a NAME is an affirmative defense and MUST be raised in the answer.

-must be served within 21 DAYS of service of the pleadings to which it responds.

Question 79

Amendment to Pleadings

As of Right:

• May be amended once at any time within _____ _________ of service of the pleading OR
• within ____ _________ of the defendants response, if there is one.

By leave of court:

• after the party has amended ________, leave to amend must be sought from the court.
• amendment by leave of court should be ___________ ___________.

Answer 79

21 Days

21 Days

ONCE

FREELY GRANTED

Question 80

Amendment to Pleadings

An amendment RELATES BACK to the date of the original IF it concerns the same transaction, occurrence, or conduct as the original pleading.

If the _________ __ ___________ has RUN then relation back determines whether the amendment is allowed (relates back) or time barred (does not relate back).

Answer 80

Statute of Limitations

Question 81

Amendment to Pleadings

Amendment to Add or Change a Party against whom a claim is asserted must:

1. Concerning the same ___________, ___________ , ___________ as the original pleading; and the party to be added must have KNOWN or had a reason to know that the actions should have been brought against that party BUT-FOR the mistake.

Answer 81

Conduct, transaction, occurrence

Question 82

Motions, Pleadings, all Discovery requests MUST be ____________ by the attorney of record.

Attorney is certifying there is no improper purpose and that the factual allegations have evidentiary support.

Answer 82

SIGNED

Question 83

Multi-Party Litigation

Minors and Incompetents can sue or be sued ONLY through a __________.

Partnerships can sue or be sued as an entity if federal jurisdiction is based on federal question.
a. If jurisdiction is based on ____________, then each and every partners citizenship counts; every partner must be listed as a party to the litigation (complete diversity applies).

Answer 83

GUARDIAN

DIVERSITY

Question 84

Multi-Party Litigation

PERMISSIVE Joinder of Parties

1. Joinder by ____________’s
2. Any number of ___________ may JOIN if

they assert claims arising out of the same _______________ or occurrence.

AND

there is a ___________ question of law or fact.

Answer 84

PLAINTIFF

PLAINTIFFS

TRANSACTION

COMMON

Question 85

Multi-Party Litigation

Compulsory Joinder of Parties

• Joinder by ______________
• Necessary Party-A person who’s participation in the lawsuit is necessary for a ________ _______________.

MUST be joined if feasible, feasible if:

1. It will not _________ the court of SMJ
2. The court can assert __________ jurisdiction over the necessary party.

Note: “Bulge” provision (100 miles of fed ct.)

Answer 85

DEFENDANTS

JUST ADJUDICATION

DEPRIVE

PERSONAL

Question 86

Multi-Party Litigation

Intervention

Outsider who VOLUNTEERS to enter lawsuit.

1. Intervention as of RIGHT
   - outsider claims an interest in the subject matter of the lawsuit that, as a practical matter, may be _____________ by the disposition of the pending action.
2. PERMISSIVE Intervention
   - May be allowed whenever there is a common question of ______ or _______ between the intervenors claim and the main claim.

Complete Diversity applies to both
BOTH subject to the AIC over $75K

Answer 86

1. Compromised
2. Law Fact
   - NO supplemental jurisdiction applies for either kind of intervention.

Question 87

Multi-Party Litigation

Interpleader
-used to resolve the problem of competing claims to the same property (stake).

Statutory Interpleader

1. Special Jurisdictional amount:________.
2. Nationwide __________ of Process
3. __________ is proper in ANY District where any claimant resides.
4. SMJ based on ___________ Diversity.

Answer 87

1. EXCEED $500
2. SERVICE
3. VENUE
4. MINIMAL

Question 88

Multi-Claim Litigation

Joinder of Claims

• as between the same plaintiff and the same defendant, ______ claims may be joined.
• *Need not be related**

1. DIVERSITY case- plaintiff can add up (____________) all claims against the same defendant to exceed the jurisdictional minimum ($75,000+).
2. FEDERAL question case- if ___________ is lacking for additional state-law claims, additional state-law claims can be joined only if they are covered by supplemental jurisdiction (arise from same T/O as original claim).

Answer 88

ALL

1. AGGREGATE
2. DIVERSITY

Question 89

Multi-Claim Litigation

Counterclaims

• Defendant vs. Plaintiff
• pleaded in Defendants Answer

Compulsory

1. Lost if not pleaded
2. Compulsory if it arises out of the same _____________ or ___________ as the claim to which it responds.
3. _____________ jurisdiction covers compulsory counterclaims.

Answer 89

2. Transaction or Occurrence
3. Supplemental

Note: filing of the original complaint TOLLS The SOL for the original claim and ANY compulsory counterclaim.

Question 90

T/F: A party asserting a claim may join with it as many independent or alternative claims of whatever nature as the party may have against the opposing party. This is true regardless of whether each claim is related to the others.

Answer 90

TRUE

Question 91

A plaintiff filed a complaint in federal district court against a defendant, a natural person, based on diversity jurisdiction. Two days later, the plaintiff sent a notification of the action and a proper request for waiver of service of process to the defendant, who was domiciled in another state. Upon receiving the request, the defendant signed and returned the waiver. Thirty days after the plaintiff sent the request for waiver of service and 20 days after the defendant returned the signed waiver, the defendant served his answer on the plaintiff.

Was the defendant’s answer timely?

Yes, because the answer was served within 21 days after the defendant returned the waiver of service.

Yes, because the answer was served within 60 days after the plaintiff sent the request for waiver of service

No, because the answer was not served within 14 days after the defendant received the request for waiver of service.

No, because the answer was not served within 30 days after the complaint was filed.

Answer 91

Yes, because the answer was served within 60 days after the plaintiff sent the request for waiver of service.

If a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside a judicial district of the United States.

Question 92

T/F: Unless the parties stipulate otherwise, the Federal Rules of Civil Procedure require that a jury verdict be unanimous

Answer 92

TRUE

Question 93

REMOVAL JURISDICTION

Limitation on Removal in Diversity Cases

“If removal is sought ________ based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed. There is no similar requirement for removal based on federal question jurisdiction.”

Answer 93

SOLELY