Civil Procedure II

Question 1

What are the elements to a joinder inquiry?

Answer 1

Do the relevant Federal Rules permit joinder.

If joinder were to occur, would the court have subject matter jurisdiction - 1331, 1332, or 1367

Question 2

What statute permits supplemental jurisdiction?

Answer 2

1367a - grant - authorizes supplemental jurisdiction
1367b - takeaway - only applies if original jurisdiction is founded soley on diversity
1367c - Discretion - a court may decline supplemental jurisdiction
Note: Can assume court will always exercise sup jur.

Question 3

What was the result of the case with following issue and what was the case?:
The issue of whether a federal court in a diversity action may exercise supplemental jurisdiction over additional plaintiffs whose claims do not satisfy the minimum amount-in-controversy requirement provided the claims are part of the same case or controversy as the claims of the plaintiffs who do allege a sufficient amount in controversy.

Answer 3

Allapath
It was held that for supplemental jurisdiction, all claims must be diverse, but only need one amount in controversy
Look at each claim and do 1367a and 1367b analysis.

Question 4

How does joinder of claims work?

Answer 4

Rule 18: A party asserting a claim, counterclaim, crossclaim, or third party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.
In other words, Open season - you can submit any claim against your opposing party, do not need to be related

Question 5

When does one have to bring a counterclaim?

Answer 5

A pleading must state as a counterclaim any claim that - at the time of its service - the pleader has against an opposing party if it is a compulsory counter claim.

Question 6

What is a compulsory counterclaim?

Answer 6

A claim that arises out of the same transaction or occurrence that is the subject matter of the opposing party.

Question 7

How do you determine if a claim is a compulsory counter claim?

Answer 7

If it arises out of the same T/O, it is a compulsory counterclaim:
Logical Relationship Test - Ask whether the claims are logically related.
If the evidence/facts overlaps, It doesn’t matter that they didn’t appear to litigate the previous claim. If you don’t plead it first time around it’s barred.

Question 8

What happens if a claim is not a compulsory counterclaim?

Answer 8

Then it is a permissive counterclaim, and it is not barred to litigate at a later date if it isn’t brought as a counterclaim.

Question 9

When can a party file a cross claim?

Answer 9

When the claim arises out of the same transaction or occurrence:
Logical Relationship Test - Ask whether claims are logical related.

Question 10

What is a cross claim, and how does it effect joinder of claims?

Answer 10

Cross claim - when a co-party brings a claim against you

They are now an opposing party and compulsory counterclaim kicks in.

Question 11

When and how is a third-party defendant brought into a lawsuit?

Answer 11

Rule 14: Impleader is one way a defendant can add other parties to the case.
Generally third party defendants are brought in the following instances:
1) Indemnity claim - insurance
2) Contribution - someone else shares the blame.

Question 12

What are the elements in deterring if a third party defendant can be brought into a lawsuit?

Answer 12

When the claim arises out of the same transaction or occurrence:
Logical Relationship Test - Ask whether claims are logical related.

Question 13

How do you know if a party is required to be joined?

Answer 13

Rule 19: Compulsory Joinder
Is the missing party necessary
19a1B, part 1 absent person claims interest in subject matter of the action and either persons absent will leave an existing party prejudice or they will be prejudice - always analyze this prong

Question 14

How do you determine if it is feasible to join a required party?

Answer 14

If there is personal and subject matter jurisdiction then it is feasible - will be told if there is personal jurisdiction

Question 15

What is the analysis when you have a required party that it is not feasible to join?

Answer 15

19B must the show go on?
Ask an inquiry based on the factors listed in the rule
B1 how much will the absent or existing party suffer
B2 Is there a way to limit the prejudice to modify the relief
B3 Is the judgment adequate without the individual
B4 Does the plaintiff have an adequate remedy if the case is dismissed

Question 16

What are the elements of a compulsory joinder issue?

Answer 16

1. Is the person a required party?
2. Is it feasible to join him/her - Need SMJ and PJ?
   2a. If yes, he/she is joined.
   2b. If no, 19B must the show go on without him/her?

Question 17

What types of preclusion are there?

Answer 17

1. Claim Preclusion: treats a judgment once rendered as the full measure of relief
2. Issue Preclusion: Issue preclusion bars the same issues from being relitigated

Question 18

What are the elements to claim preclusion?

Answer 18

1. The claim in case 2 has to be the same as case 1 [Transactional Test (Majority) or Primary Rights Test (Minority)]
2. The first and second proceedings must involve the same parties or those in privet with them. (can assume no privety)
3. early judgment - must be final, valid, and on the merits - can be assumed unless told otherwise. (can be assumed unless told otherwise)

Question 19

What is the transactional test and when does it apply?

Answer 19

A claim can be defined as “a group of operative facts giving rise to one or more rights of actions.” It is used to define a claim when there is an issue of claim preclusion.

Question 20

How do you determine when two claims are the same for purposes of claim preclusion?

Answer 20

1. a)Transactional Test: A claim encompasses all rights to relief out of which the action arose (majority)
2. b) Primary Rights Test (Minority): A claim or cause of action is defined by reference to the primary right at the heart of the controversy.

Question 21

P and D are involved in an automobile accident where P breaks his arm and his leg. After a trial, judgment is entered for P and damages are awarded. In a subsequent lawsuit based on the same accident, P again sues D. This time, P sues regarding damages to his car. How would this be analyzed by the two different methods for determining whether a claim is the same?

Answer 21

Transactional Test - The claims are the same because they arise out of the same T/O.
Primary Rights Test: Both cases involve a different Primary Right: one to be free from bodily harm, and one to be free from injury to one’s property. Thus, the two claims would be different.

Question 22

What are the elements of issue preclusion?

Answer 22

1. Is the same issue involved in both actions?
2. Was the issue actually litigated in the first action?
3. Was the issue decided and necessary to a valid judgment in that action?
4. Do both actions involve the same parties or those in privity with them?
5. Did the party against whom issue preclusion is being asserted have a full and fair opportunity to litigate that issue in the initial preceding?

Question 23

What is “offensive preclusion” and how must it be analyzed?

Answer 23

Offensive preclusion - seeks to to prevent P1 v. D; P2 v. D
Elements to consider
1. could plaintiff have joined in prior suit
2. did defendant have an incentive to litigate prior suit fully and vigorously
3. is the judgment inconsistent with prior judgments?
4. Whether in the first case procedural opportunities were limited (particularly ability to discover)

Question 24

What is determined by the Erie Test

Answer 24

Federal vs. State Law; which one do we apply?

Question 25

What is the first question that you ask once you know there is an Erie issue?

Answer 25

What is the source of the federal law? - Dictates the winner and guidelines applied. Four source of federal law:

1) Constitution
2) Statute
3) Federal Rules of Civil Procedure
4) Federal Judge made Law

Question 26

What are the guidelines used when the source of the Federal Law is the constitution in an Erie Inquiry?

Answer 26

Federal Law wins the inquiry

Question 27

What are the guidelines used when the source of the Federal Law is a Statute in an Erie Inquiry?

Answer 27

1. Look whether it controls the issue at hand, and conflicts with state law. If it doesn’t, then you apply both.
2. If it does, you ask yourself if the federal law is constitutionally valid (rationally classifiable as procedural)

Question 28

What are the guidelines used when the source of the Federal Law is the Federal Rules of Civil Procedure in an Erie Inquiry?

Answer 28

1. Look whether it controls the issue at hand, and conflicts with state law. If it doesn’t, then you apply both.
2. If it does, REA Compliance test:
   (a) Must really regulate procedure: is the federal rule rationally classifiable as procedural
   (b) Does it abridge, enlarge, or modify a substantive right?

Question 29

What are the guidelines used when the source of the Federal Law is Federal Judge Made in an Erie Inquiry?

Answer 29

1. Look whether it controls the issue at hand, and conflicts with state law. If it doesn’t, then you apply both.
2. If it does, apply Hanna-Byrd Combo

Question 30

What is the Hanna-Byrd Combo and when/how is it applied?

Answer 30

1) If applying the federal law will not lead to forum shopping or inequitable administration of the law (Hanna part II), then you apply federal law.
2) If applying federal law will lead to forum shopping or inequitable administration of the law, then it will be outcome determinative (Hanna part II), and you apply state law, unless, the countervailing federal interests outweighs both the state interest and the likelihood of forum shopping and inequitable administration.

Question 31

How does a plaintiff win a move for summary judgment when he/she is the movant?

Answer 31

He/She need to prove that there is no genuine issue of material fact with every element of his/her claim

Question 32

How does a defendant defeat a plaintiff’s movement for Summary Judgment?

Answer 32

He/She needs to prove that there is a genuine issue of material fact with at least one element of his/her claim

Question 33

If the moving party is arguing no genuine issue of material fact, in a Summary Judgment case, as to an issue on which the nonmoving party has the burden at trial how can the movant prove no GIMF?

Answer 33

The movant can either

a) provide affirmative evidence that the nonmoving party won’t be able to prove an element of his claim at trial , or
b) the movant can point to a specific point in the record that shows a hole

Question 34

If the moving party is seeking Summary Judgment on an issue that he has to prove at trial, how can the moving party prove no genuine issue of material fact?

Answer 34

Only by providing affirmative evidence, can the moving party warrant summary judgment

Question 35

Who bears the initial burden in when a case is moved for Summary Judgment? What happens if the initial burden is or isn’t satisfied?

Answer 35

Moving party always bears the initial burden
If they do not satisfy that initial obligation then dismissed
Once MP satisfies initial showing, NMP must respond and show affidavit, or evidence in his/her favor, or ask for more time.

Question 36

When is there a genuine issue of material fact?

Answer 36

If a reasonable juror could reach different conclusions about that fact, material fact.
All reasonable inferences are drawn in favor of the nonmovant.

Question 37

Whom can issue preclusion be asserted against?

Answer 37

Cannot assert issue preclusion unless the target was a party in case 1

Question 38

Whom can assert issue preclusion?

Answer 38

Non mutual defensive issue preclusion - when D2 seeks to prevent a P from asserting an issue that P had previously litigated and lost to D1

Question 39

Define Legal sufficiency and legal insufficiency and its effect on pleading.

Answer 39

Legal Sufficiency is the idea that if a plaintiff gives us a complaint and we assume everything in it is true, the plaintiff would get relief
Legal insufficiency is when the claim leaves something out that even if everything is true, the plaintiff can’t win.

Question 40

What was held in Twombly and how does it effect pleading?

Answer 40

To satisfy the pleading requirements, you must plead enough facts to make your claim plausible. possible - plausible - probable
lowest - middle - highest

Question 41

What was the result of the following fact pattern and the name of the case:
A rule 12b(6) motion was filed. A pakistani muslim was detained after the 9/11 attacks and claimed that “they adopted an unconstitutional policy that subjected respondent to harsh conditions of confinement on account of his race, religion, or national origin.

Answer 41

Iqball
It was held that the it was not more likely that the U.S. government acted not because of a neutral investigative purpose, but a purposeful discrimination motivation.
Thus, it was not plausible that they acted with a purposeful discrimination motivation, and the 12b(6) motion was granted for failure to state a claim.

Question 42

What are the options in an answer to a complaint?

Answer 42

Deny, affirm, or don’t have enough information (which serves as a denial)
Note: if you don’t deny or lack information, allegations are deemed admitted.

Question 43

What types of denial are there in an answer to a complaint?

Answer 43

General Denial: Federal rules - only if you can dispute every claim
Specific Denial: Go through each claim and deny or agree

Question 44

What are the two items that one must have in an answer to a complaint?

Answer 44

1. Respond to allegations in complaint (e.g. deny, affirm, or don’t have enough information.
2. Raise affirmative defenses
   Note: if you don’t raise some affirmative defenses, you may waive the right to assert them at a later point

Question 45

What are you trying to demonstrate when raising an affirmative defense?

Answer 45

If everything the other party says is true, you have some facts that are true and mean you have no liability or reduced liability

Question 46

What types of experts are there, and how what is discoverable about them?

Answer 46

Consulting expert: Discovery is extremely limited, cannot discover facts known unless under exceptional circumstances
Testifying expert: Expensive, write report, full disclosure, etc

Question 47

What privileges are available, and what is discoverable related to those privileges?

Answer 47

1. Attorney Client: confidential communication between attorney’s and clients. Absolute - no discovery
2. Work Product
   a) Opinion Work Product: attorney’s mental impressions - absolute protection
   b) Fact Work Product: substantial need and inability to obtain the equivalent without undue hardship
   Note: Underlying facts are discoverable

Question 48

What are we concerned with for a Federal Question issue under a Subject Matter Jurisdiction Inquiry?

Answer 48

Federal Question
For purposes of §1331 a case arises under federal law only if:
1. The cause of action under which the plaintiff sues is created by federal law (Creation Test), or
2. The cause of action under which the plaintiff sues, although not created by federal law, includes an essential Federal Ingredient (Pat Benetar Test, We Belong)

Question 49

What are we concerned with for a Diversity of State Citizenship issue under a Subject Matter Jurisdiction Inquiry?

Answer 49

Diversity
1) §1332A(1) Requires disputes between citizens of different states.
To be a citizen of a state, you must be:
a) Citizen of the U.S.
b) Domiciliary of a state.
2) Amount in controversy - must pay a cover >$75,000

Question 50

What is required for Alienage to get into federal court under SMJ?

Answer 50

1) §1332A(2) requires all U.S. citizens on one side and all Aliens on the other side.
2) Amount in controversy - must pay a cover >$75,000

Question 51

What are the elements of the Essential Federal Ingredient Test?

Answer 51

1. Is there an essential federal ingredient embedded in an otherwise nonfederal claim?
2. The federal ingredient must be actually disputed within the context of the case.
3. The Federal Ingredient must be substantial in the sense that it is particularly appropriate for resolution by a federal court.
4. Must not upset the balance between state and federal court claims.

Question 52

Under a Federal Question Inquiry, Can the court consider anticipated defenses that defendant may raise?

Answer 52

No. Well Pleaded Complaint Rule: Cannot consider anticipated defenses that defendant may raise. Only consider essential elements of plaintiff’s case (e.g. Mottley case)

Question 53

Name the case and outcome with the following fact Pattern: Original claim was a quiet title action that depended on the interpretation of the notice statute in the federal tax law.

Answer 53

Grable Case
Held: There was subject matter jurisdiction under the essential federal ingredient test of Federal Question.
1. Whether Grable was given notice within the meaning of the federal statutes was an essential element of its quiet title claim.
2. The meaning of the federal statute is in dispute and the only legal or factual issue contested.
3. The government has a strong interest in the “prom and certain collection of delinquent taxes.
4. It would be the rare state title case that raises a contested matter of federal law. Thus, balance will remain between state and federal courts.

Question 54

What is required to be a domiciliary of a state?

Answer 54

a) physically present
b) intend to stay permanently: Where does the party:
(1) exercise civil/political rights?
(2) pays taxes
(3) has real and personal properties
(4) has a driver’s or other license
(5) has bank accounts
(6) has a job or owns a business
(7) attends church
(8) has a club membership

Question 55

How is a Corporation’s domiciliary determined?

Answer 55

They’re citizens of states where incorporate and have principle place of business (e.g. where is their nerve center [corporations have a single location where they’re the domiciliary])

Question 56

What case did the Nerve Center Test come from, and how does it apply?

Answer 56

Hertz Case
The rule of a corporations domiciliary was greatly simplified by the Nerve Center test, which identifies a companies principle place of business where the decisions of the company are made (Nerve Center). It was held that Hertz’s nerve center was in New Jersey, so there was complete diversity between Hertz and a California resident, hence federal court subject matter jurisdiction existed under complete diversity.

Question 57

What is meant by complete diversity?

Answer 57

No plaintiff can have same citizenship of any defendant (e.g. diversity across the vs. sign) [e.g. Two plaintiff’s from Ohio vs. 1 plaintiff N.Y., 1 plaintiff CT is complete diversity]

Question 58

What is supplemental jurisdiction?

Answer 58

Subject matter jurisdiction analyst must be done for each claim. If a joined claim does not have subject matter jurisdiction, the only way the claim can get in is through supplemental jurisdiction. (e.g. Because of relationship to first claim, second claim can satisfy supplemental jurisdiction. Tag along Jurisdiction).

Question 59

How does supplemental jurisdiction work?

Answer 59

Every claim in the lawsuit must have supplemental jurisdiction.
If non federal dispute is a part of the same case as anchor claim (federal dispute), supplemental jurisdiction applies
(e.g. Claims arise from same underlying facts).

Question 60

How do statutes effect supplemental jurisdiction?

Answer 60

§1367a - grants supplemental jurisdiction
§1367b - only takes away supplemental jurisdiction if original jurisdiction is solely based on diversity.
§1367c - Discretion can be exercised on supplemental jurisdiction based on common sense.