Civil Procedure - High Priority Topics

Question 1

Removal

Answer 1

A defendant may remove a case to a federal court sitting in the State where the claim was filed if:

the federal court has SMJ;
all defendants agree;
no defendant is a resident of the forum state; and
removal is sought within 30 days.

Plaintiffs may never remove a case to federal court.
A case cannot be removed more than one years after commencement in a diversity action.

Question 2

Types of PJ

Answer 2

Personal jurisdiction falls into two categories:

1) traditional bases:
- Domibile
- presence in the State where the party is served
- Consent
- Waiver

2) Long Arm Jurisdiction:
- Long Arm Statute that meets Due Process requirements

Due Process exists when a defendant has minimum contacts with the state AND it is fair and reasonable for the defendant to be sued in the forum state.

Question 3

Service of Process and Notice

Answer 3

The summons and complaint must be served on a defendant within 90 days of filing the complaint. If the plaintiff fails to comply with this timeline the court must either dismiss the action without prejudice or order that service be made within a specified time.

Service may be made by any person over 18 years old who is not a party to the case.

Question 4

Venue

Answer 4

Venue is proper in any district where:
any defendant resides;
where a substantial portion of the claim occurred;
where a substantial part of the property is located; or
where any defendant is subject to the court’s personal JDX [if prior don’t apply]

Question 5

Transfer of Venue

Answer 5

Transfer of venue is proper and applicable law in a suit depends on whether venue was proper when the suit was first filed.

If venue was proper when filed, a court may transfer venue if its more convenient for the parties, and the action could have initially been brought in the receiving court.

If venue was improper when filed, a court MUST dismiss the case or transfer the case if the interest of justice require it.

Question 6

Erie Doctrine

Answer 6

The Erie Doctrine applies when a federal case is brought under diversity of citizenship jurisdiction. Under the Erie Doctrine, a federal court will apply its own federal procedural laws but must apply state substantive law.

Procedural Laws: civ pro rules, SOLs, burden of proof, rebuttable presumptions

Substantive Laws: choice of law rules, statute of frauds, irrebuttable presumptions, damages, SOLs that condition a substantive right, and SOLs where a borrowing statute was enacted

Question 7

Motion to Dismiss

Answer 7

Under Rule 12(b). MTD may be made prior to filing an answer.

A MTD requires a court to consider the facts in the light most favorable to the non-moving party, and determine whether there is any basis upon which relief can be granted.

An MTD made after the defendant has answered is called a Motion for Judgment on the Pleadings.

Question 8

Motion for Summary Judgment

Answer 8

A court will grant a motion for summary judgment when there is not question of material fact and the moving party is entitled to judgment as a matter of law.

When reviewing the motion, the court MUST view evidence in the light most favorable to the non-moving party.

Question 9

Appeals - Final Judgment Rule

Answer 9

In federal court a party may only appeal from a final judgment or decision. A final judgment is one which ends the litigation on the merits.

Appeal is thereby precluded from any decision that adjudicates some but not all claims in the action.

Must be filed within 30 days after entry of the judgment being appealed from.