Civil Procedure LAST PUSH

Question 1

Personal Jurisdiction - Constitutional Step

Answer 1

does the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice

Question 2

Personal Jurisdiction - Statutory Step

Answer 2

(1) present in forum state
(2) domicile in forum state
(3) express or implied consent to jurisdiction OR
(4) long arm statute

Question 3

Constitutional Step Factors

Answer 3

(1) contacts
(2) relatedness
(3) fairness (only if specific PJ)

Question 4

Personal Jurisdiction - Contacts

Answer 4

contacts must show that the defendant:
(a) purposely availed themself of the forum states laws; AND
(b) knew or reasonably should have anticipated that the activities in the forum made it foreseeable that theyd be halled into court there

Question 5

Personal Jurisdiction - Relatedness

Answer 5

(a) is the claim related to the defendants contact with the forum, a court is more likely to find that claim is fair and reasonable OR
(b) is unrelated to the defendant’s contact, the court must have general PJ over defendant which requires defendant be at home

Question 6

Personal Jurisdiction - Fairness (Only if Specific PJ)

Answer 6

(a) whether the forum is so gravely difficult and inconvenient that the Defendant is at severe disadvantage
(b) forum states legit interest in providing redress for its resident
(c) plaintiff’s interest in obtaining convienent and effective relief
(d) interstate judicial systems interest in efficiency and
(f) shared interests in furthering social policies

Question 7

Substituted Service

Answer 7

(1) at the Defendants usual place of abode
(2) with someone of suitable age and discretion
(3) who resides there

Question 8

Service on Business or Organization in the United States

Answer 8

(a) delivering to an officer or a managing or general agent a copy of the summons and complaint or
(b) using a method permitted by the state (i) where the federal court sits or (2) where service is to be made

Question 9

Federal Question Well Plead Complaint

Answer 9

the plaintiff’s claim itself must arise under federal law

Question 10

Two Limitations on Removal

Answer 10

two limits to removing a cased based on solely diversity of citizenship:
(1) the case should not be removed if any defendant is a citizen of the forum state
and
(2) case should not be removed more than one year after case was filed in state court

Question 11

Steps for Supplemental Jurisdiction

Answer 11

must share a common nucleus of operative fact with the claim that stratifies SMJ

Question 12

Clearly Substantive for Erie

Answer 12

(1) conflict (choice of law) rules
(2) elements of a claim or defense
(3) statute of limitations
(4) rules for tolling statutes of limitations
(5) standard for granting a new trial because the jurys damages award was excessive or inadequate

Question 13

Factors in Determining Substantive v Procedural

Answer 13

(1) outcome determinative
(2) balance of interest
(3) avoid forum shopping

Question 14

Where May Plaintiff Lay Venue

Answer 14

(a) all defendants reside
(b) substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located

Question 15

Transfer of Venue - Transfer from Proper Venue

Answer 15

is the original district is a proper venue, that court can order transfer based on convenience of parties and witnesses and in the interest of justice

transferee court must apply the choice of law rules of the transferor court

Question 16

Transfer of Venue - Transfer from Improper Venue

Answer 16

if the original district is improper, the court may transfer in the interest of justice or dismiss

transferee applies its own choice of law rules

Question 17

Complaint must Contain

Answer 17

(a) a statement of grounds of subject matter jurisdiction
(b) short and plain statement of the claim
(c) a demand for relief sought

fraud, mistake or special damages requires particularity or specificity

Question 18

Rule 12(E) Motion

Answer 18

for more definite statement - used when the complaint is so vague or ambiguous the defendant simply cannot respond

Question 19

Rule 12(F) Motion

Answer 19

motion to strike - asks the court to remove redundant or immaterial things from a pleading

Question 20

Rule 12(b) Defenses

Answer 20

waived if not put in the first motion or answer:
(a) lack of personal jurisdiction
(b) improper venue
(c) improper process
(d) improper service

Question 21

Rule 12(b) Defenses Which Arent Waived

Answer 21

(a) failure to state a claim
(b) failure to join indispensable party
(c) lack of subject matter jurisdiction

Question 22

Amending to Change Defendant

Answer 22

(a) the amendment concerns the same conduct, transaction, or occurrence as the original
(b) defendant had such knowledge of the case such that they will avoid prejudice
(c) defendant knew or should have know that, but for a mistake, they would have been name originally

Question 23

Amending to Join Claim

Answer 23

relates back if the pleading concerns the same conduct, transaction, or occurrence as the original pleading

Question 24

Rule 11 Signature

Answer 24

certifies that to the best of their knowledge and belief, after reasonable inquiry
(1) the paper is not for an improper purpose
(2) legal contentions are warranted by law or a nonfrivolous argument for a change of law
(3) factual contentions and denials have evidentiary support or are likely to after further investigation

Question 25

Claims by Multiple Plaintiffs Against Multiple Defendants

Answer 25

(1) arise from the same transaction or occurrence and (2) raise at least one common question of law or fact

Question 26

When Absentee is Necessary or Required

Answer 26

(1) without the absentee, the court cannot accord complete relief among the existing parties (2) the absentees interests may be harmed if not joined or (3) the absentee claims an interest that subjects a party to a risk of multiple obligations

Question 27

When is Absentee Joinder Feasible

Answer 27

feasible if: (1) there is personal jurisdiction over the defendant and (2) there will be federal SMJ over the claim by or against the absentee

Question 28

When Absentee Joinder Is NOT Feasible

Answer 28

court must determine whether to proceed without: (1) is there an alternative forum available (2) what is the actual likelihood of harm to the absentee and (3) can the court shape the relief to avoid that harm to the absentee

Question 29

Compulsory Counterclaim

Answer 29

one that arises from the same transaction or occurrence as the Plaintiff's claim

Question 30

Permissive Counterclaim

Answer 30

one that does not arise from the same transaction or occurrence as the Plaintiff's claim - party is not required to file and can sue on the claim in a sperate case

Question 31

Crossclaim

Answer 31

claim against a coparty arising from the same transaction or occurrence as the underlying action

Question 32

Process for Impleading Third Party Defendant into Case

Answer 32

defendant must (1) file a third party complaint naming the TPD and (2) have that complaint formally served

Question 33

Intervention of Right

Answer 33

if the absentees interest may be harmed if they are not joined, and that interest is not adeuqately represented by the current parties, intervention is as of right

Question 34

Permissive Intervention

Answer 34

at least one common question of law or fact, intervention would be permissive and discretionary

Question 35

Class Action Requirements

Answer 35

(1) numerosity (2) commonality (3) typicality (4) adequacy

Question 36

Prejudice Class Action

Answer 36

class treatment is necessary to avoid harm either to class members or to the non class party

Question 37

Injunctive Class Action

Answer 37

seeks injunction or declaratory relief because the defendant treated the class members alike

Question 38

Common Question Class Action

Answer 38

(1) common questions must predominate over individual questions and (2) the class action is superior method to handle the dispute

Question 39

Merits Sanctions

Answer 39

(a) establishment order (b) strike pleadings of the disobedient party (c) disallow evidence from that party (d) dismiss plaintiff's case (e) enter default judgment against defendant

Question 40

Motion to Set Aside Default or Default Judgment

Answer 40

(1) good cause and (2) a viable defense

Question 41

Reasons a New Trial Would Be Granted

Answer 41

(1) judge gave erroneous jury instructions (2) new evidence that could not have been discovered before (3) judgment is against weight of evidence (4) misconduct by juror, party, or witness (5) damages are inadequate or excessive

Question 42

Interlocutory Appeals Act

Answer 42

allows appeal of non trial order if: (1) the district judge certifies that it involves a controlling issue of law, (2) as to which there is a substantial ground for indifference and (3) Court of Appeals agrees to hear it

Question 43

Collateral Order Doctrine

Answer 43

appellate court has discretion to hear an appeal on an issue if that issue: (1) is distinct from the merits of the case (2) involves an important legal question and (3) is essentially reviewable if parties await final judgment

Question 44

Review of Questions of Law

Answer 44

court of appeals uses a de novo standard

Question 45

Review of Questions of Fact in Bench Trial

Answer 45

court of appeals will affirm unless findings are clearly erroneous

Question 46

Review of Questions of Fact in Jury Trial

Answer 46

court of appeals will affirm unless reasonable people could not have made that finding

Question 47

Review of Discretionary Matters

Answer 47

court of appeals will affirm unless the DCJ abused their discretion

Question 48

Requirements for Claim Preclusion

Answer 48

(1) same claimant suing same defendant (2) valid final judgment on the merits (3) case one and two are the same claim

Question 49

Requirements for Issue Preclusion

Answer 49

(1) same issue actually litigated and determined in case 1 (2) issue was essential to judgment in case 1 (3) used against party or in privity (4) used by someone who was party in case or in privity

Question 50

Nonmutual Defensive Issue Preclusion

Answer 50

person using was not a party to case one and was Defendant in case two

Question 51

Nonmutual Offensive Claim Preclusion

Answer 51

person using claim preclusion was not a party to case one and is the plaintiff in case two