Civil Procedure MEE

Question 1

Four Ways to get SMJDX

Answer 1

1. Federal Question–federal question raids on face of well pled complaint. NOT in defense.

2. Diversity– a. complete diversity between all Ps and All Ds (meaning no P/D overlap in state dom) b. amount in controversy $75K 2nd P can come in with supp claims so long as they don’t ruin diversity
3. Supplemental–start with fed Q JDX. JDX over additional state law claims over which would not normally have SMJ, so long as they come from COMMON NUCLEUS OF OPERATIVE FACTS -a 2nd P might be able to enter suit and bring state law claims -D can bring a state crossclaim against other D so long as all still CNOF
4. Removal. D may remove from state to federal so long as basis for fed JDX Also need: If based on diversity, only be removed fed court if no D resident of state in which originally filed Must file removal w/in 30d of receiving complaint all Ds must consent to removal

Question 2

Domicile For JDX purposes

Answer 2

individual is domiciled wherever they live and have intent to remain indefinitely

Look at: where job is, own property

corp: where incorporated

Question 3

$ amount required for diversity federal JDX

Answer 3

OVER $75K. Includes both

Question 4

supplemental JDX

Answer 4

JDX over additional state law claims over which would not normally have SMJ, so long as they come from COMMON NUCLEUS OF OPERATIVE FACTS.

If starts with fed Q JDX.

• a 2nd P might be able to enter suit and bring state law claims
• D can bring a state crossclaim against other D so long as all still CNOF

If starts with diversity JDX,
2nd P can join state claim if CNOF AND
CANNOT RUIN DIVERSITY! don’t worry about $75K
-D can bring crossclaim, already there so don’t worry about ruining diversity

Courts MAY reject SJDX IF

• complex Qs of state law
• if fed law claims dismissed, only state left
• any other compelling reason to define SJDX

Question 5

Courts MAY reject SJDX IF

Answer 5

• complex Qs of state law
• if fed law claims dismissed, only state left
• any other compelling reason to define SJDX

Question 6

Removal JDX rule

Answer 6

D may remove from state to federal so long as basis for fed JDX
Also need: If based on diversity, only be removed fed court if no D resident of state in which originally filed
Must file removal w/in 30d of receiving complaint
all Ds must consent to removal

Question 7

Ways to get personal JDX

Answer 7

3 Traditional bases

1. present in a forum and served there OR
2. domiciled there OR
3. consent to PJDX in that state

OR! if the above not meant

4. Long Arm Statute–can court pull this D into court in this state?
5. Look at Constitutional Requirement

Question 8

Long Arm Statue allows to get D to extend allowed by Constitution. What is that?

Answer 8

Due process requires:

1. minimum contacts with forum state
   a. purposeful availment. Purposeful and substantial to where D should foresee being sued in that state. USE THE FACTS
2. relatedness specific OR general JDX over claim
   a. specific : when lawsuit arises out of D’s conduct in forum state
   b. general: D is “essentially at home” in forum state.
   corporation: where incorporated, AND principal place of business “nerve center”
3. Fairness:
   a. interest of forum state
   b. burden on D to come to state (corporate can bear cost better than individual)
   c. interest of various states

Question 9

VENUE. wtf even is it

Answer 9

which federal district court, geographically, should the lawsuit come in
3 ways proper:
1. in any judicial district in which any D resides so long as all reside in same state
2. substantial part of events occurred or which property at issue is situated
3. FALLBACK: if not the other 2: in any judicial district where any D is subject to PJDX

Sometimes can transfer

Question 10

When can transfer venue?

Answer 10

1. see if original court was proper
2. THEN ASK:
   a. would there be personal JDX
   b. would there be SMJDX
   c. would venue be appropriate
   d. court may still decline if not in interest of justice

Question 11

ERIE DOCTRINE (lightly tested, simple on exam)
what to look for

Answer 11

When federal court is asked to apply a state law
–does the court apply state or federal?

Question 12

Erie doctrine

Answer 12

If action is in court under FedQ: will apply federal substantive and procedural law

If in fed court under diversity JDX: state substantive law and federal procedural law

Question 13

TRO: explain

Answer 13

TRO comes before a preliminary injunction
Goal: to maintain status quo before getting an injunction
Must show that immediate and irreparable injury will occur
Must show effort was made to give notice to other side, or explain why it wasn’t (but other side need not be there)
Lasts max of 14d, can be renewed

Question 14

Prelim injunction: what and how

Answer 14

To get a PI (equitable relief), must:
-give notice to other side
will be granted:
1. likely to succeed on merits
2. irreparable harm will occur
3. balance the equities in favor: hardships to D of granting versus to P of not granting
4. PI be in best interests of public

In place for: as long as trial takes, generally

Question 15

FRCP Rule 4 process service
corporation: who can be saved

Answer 15

• rules governing service of process are PROCEDURAL
• officer, managing agent, general agent, agent appointed by law to receive process

Question 16

Erie Doctie re: process

Answer 16

If service of process, fed law overrules state in fed court

Question 17

Rule 12 MOTIONS TIMING: when to raise

Answer 17

Lack of SMJ can be raised at ANY TIME, even on appeal
PJDX, Venue, Process: on first pre-answer motion, or answer if that’s your first motion
12b6 fail to state claim: or R19 fail to join new party: in any pleading, in motion for Judgment on leas, or at trial

Question 18

R15 amendments and relation back

Answer 18

Party may amend once by right within 21d after service on D
If beyond that, may amend by written consent from other side or by leave of court

Relation back: related to SoL and added claim or party

Question 19

Relation back under R15 –adding claim or party

Answer 19

Amended complain can add new claim after SoL has run IF:

• original claim was timely filed
• new claim relates back to same transaction or occurrence T&O

Adding new party, say was still filed timely IF:
-arose came T&O
-new D must have know about complaint within 90d if filing
-new D must have known that but for a mistake, they would have been named in original suit
(Sue Joe Smith instead of John Smith, John saw it was was stoked his bro would take heat)

Question 20

R11 good faith (not heavily tested)

Answer 20

When atty files something, good faith implied
Ig given oopportunity to fix after complaint, must do so
If do not fix, then court will take action

Question 21

JOINDER R19 compulsory joinder of partier. What is it? What are the rules when it’s tried?

Answer 21

When D says “this suit cannot proceed without additional party”

1. is that new party necessary to be joined?
   - if court cannot give complete relief w/o this party
   - if party would be harmed by non presence in court during case
   - if risk of inconsistent judgment or double liability

If yes, necessary:
-need PJDX over party
-would it ruin diversity JDX (if relevant, not here on FedQ)
If it would ruin diversity AND they are indispensable, then court must dimissis suit and tell them to file elsewhere

Can case proceed without adding that party?
If yes, then case will proceed without.

Question 22

JOINDER of CLAIMS: R13 crossclaims

Answer 22

Crossclaim: when D sues another D
Can D1 sue D2?
-When claim arises out of same T&O that was basis of the original lawsuit
-check SMJDX: fedQ, diversity, supplemental

Question 23

IMPLEADER: R14

Answer 23

D brings new D into lawsuit. Can when:
-show new impleader claim is related between original P>

Question 24

R24 INTERVENTION

Answer 24

When nonparty WANTS to join lawsuit

1. As of right.
2. nonparty has interest in subject matter of action
3. action might affect their interest, and won’t have say
4. if interest not adequately represented by current parties
5. Permissive, ask court, who will grant IF:
6. if statutory right to intervene
7. If 3P has claim or defense related to original cause of action

Question 25

DISCOVERY. R26. What is discoverable?

Answer 25

IN an essay, p1 seeks something in discovery from p2, says NO. Any nonprivileged matter relevant to claim or defense -limited if unduly burdensome or expensive -does not have to be admissible to be discoverable

Question 26

What privileges protect relevant material from discovery

Answer 26

1. work product privilege--atty work product

Question 27

Exception from work product privilege

Answer 27

SHOW: - not available from other means (witnesses die) AND - substnaitally prejudiced by not getting access to the information ONLY factual info is subject here. NOT atty's mental impressions or opinions about it

Question 28

Expert reports --when get in discovery?

Answer 28

If will not testify, must show exceptional crumstaicnes

Question 29

How does duty to store e-info work? What are the sanctions if you fail?

Answer 29

Once litigation is anticipated, must take steps to preserve things like emails preserve electronically Sanctions: - court CAN make ruling, or tell jury, to presume that info you did not preserved was unfavorable to you - worst case: judge could enter default judgment

Question 30

Discovery: mental and physical exams

Answer 30

If party's mental or phsucial condition is at issue, you are entitled to get an exam of that party

Question 31

How to subpoena non-parties or their documents?

Answer 31

Non--parties: can issue subpoena Non-party's info: tell them to produce it, subpoena deuces cecum

Question 32

R56 summary judgment: explain it

Answer 32

no genuine dispute as to any material fact and movant is entitled to decision as matter of law SO: if parties are arguing different factual scenarios, there is genuine dispute.

Question 33

When eentiteld to jury trial under 7A for civil matter?

Answer 33

When damages exceed $20 Must file demand for one within 14d after you've filed answer to complaint

Question 34

Judgment as a matter of law, or directed verdict: when can you ask

Answer 34

Close of P's case OR close of all the evidence.

Question 35

Judgment as matter of law: when do you get one

Answer 35

Get one when no reasonable person could differ as to outcome of case

Question 36

RMJML!!! Renewed motion for judgment as a matter of law

Answer 36

MUST do a JML motion before jury verdict THEN can renew it after jury verdict

Question 37

Appeals: when can federal appeals court hear appeal?

Answer 37

Mostly, when final judgment rendered. EXCEPTION: -injunction denied can be appealed immediately (tested) MORE

Question 38

Claim Preclusion AKA res Judicata

Answer 38

Final judgment on the merits precludes same parties litigating the same issue. Usually a P asserts it 3 elements: 1. Same or very similar P AND D 2. earlier suit must have been final judgment on merits 3. new claim was already decided in first suit--same claim [it's rare on the bar--usually not same P and D]

Question 39

issue preclusion, AKA collateral estoppel: definition and elements to assert it

Answer 39

P sues D. Issue is decided in P's favor. Then, new P sues same D on same issue. Asks court to decide in favor instead of retrying it. Elements: 1. same issue 2. final judgment on merits 3. issue was essential to judgment in first suit 4. P can assert issue preclusion against D if fair.

Question 40

std of review on appeal from bench trial

Answer 40

trial judge's findings of fact...can only be set aside ifclearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, based on the entirety of the evidence, is left with the definite and firm conviction that a mistake has been committed

Question 41

what does "clearly erroneous" mean

Answer 41

A lower court's fact finding is clearly erroneous when, although there is evidence to support it, the appellate court, based on the entirety of the evidence, is left with the definite and firm conviction that a mistake has been committed

Question 42

Can a state court enforce a federal court's judgment? Must it?

Answer 42

YES. State court must give full faith and credit to both the judgments of other state courts and to federal courts. They must treat federal court judgments as federal courts would (in terms of finality, appealing similar issues, etc).