CivPro

Question 1

How to address personal jurisdiction problems:

Answer 1

(1) Minimum contacts: (a) Did D personally avail themselves of the forum state’s laws? (b) Was it foreseeable that D could be sued in the forum?
(2) Relatedness: (a) Specific jxn: did the claims arise from D’s in-state contacts? (b) General jxn: did the D have such systematic and continuous contacts that it is “at home” in the forum states (i.e., is D incorporated or have its PPB in the state?)
(3) Fairness: If specific jxn applies, weight the following factors: (a) Burden on D (i.e. severe disadvantage to D); (b) State’s interest (e.g. in providing redress for its residents); (c) P’s interests

Question 2

Where may a plaintiff lay venue?

Answer 2

(1) For cases initially filed in federal court, P may lay venue in any district where:
• All defendants reside
• A substantial part of the claim arose.

(2) For cases removed from state to federal court, venue is in the federal district embracing the state court
where the action was filed

Question 3

What are the methods of serving process on an individual?

Answer 3

• Personal service
• Substituted service at D’s abode on someone of suitable age living there
• Service on D’s agent (if service is w/in the scope of agency)
• State law methods: state law of state where the federal court sits or where service is made (e.g., service by mail, if allowed)

Question 4

What are the methods of serving process on a corporation?

Answer 4

• Service on officer, managing or general agent
• State law methods: state law of state where the federal court sits or where service is made (e.g., service by mail, if allowed)

Question 5

What are the exceptions to diversity jurisdiction?

Answer 5

Divorce, alimony, child custody, probate

Question 6

Will a complaint create federal question jurisdiction if it alleges federal issues only in anticipation of some defense?

Answer 6

A complaint will not create federal question jurisdiction if it alleges federal issues only in anticipation of some defense. The federal question must appear as part of the plaintiff’s cause of action as set out in a well-pleaded complaint.

Question 7

Can a D remove a case brought by a P in D’s home state court?

Answer 7

No, if the case is based on diversity jxn. Yes, if the case if based on FQ jxn.

Question 8

When is work product discoverable?

Answer 8

Generally, the work product-a document or tangible thing-made by a party or representative of a party (such as the party’s attorney) is not discoverable if made in anticipation of litigation, unless the party requesting discovery can show substantial need and undue hardship if disclosure is not ordered

Question 9

Unless a different time is set by court order or stipulation, within how many days after a 26(f) conference must the parties provide the names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses?

Answer 9

14 days

Question 10

Can a party be forced to undergo a medical examination?

Answer 10

A party need not submit to an exam by another physician without a court order obtained on a showing of good cause

Question 11

When can a clerk sign and enter a judgment, following a default by a defendant?

Answer 11

Following a default by a defendant, the clerk may sign and enter a judgment for the amount set forth in the plaintiff’s affidavit if the defaulted defendant is not an infant or an incompetent and plaintiff’s claim is for a sum certain and the default was entered because the defendant failed to appear.

Question 12

When can a court grant an ex parte TRO?

Answer 12

A court may grant, in its discretion, an ex parte temporary restraining order if the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition.
The other requirements are that the moving party must (i) certify in writing all efforts she made to give notice of the hearing to the adverse party and the reasons why notice should not be required; and (ii) provide some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security

Question 13

When is a federal case deemed commenced for SOL purposes?

Answer 13

In a federal question case, the action is deemed commenced for statute of limitations purposes when the complaint is filed with the court.

In diversity cases (not federal question cases), the Supreme Court has held that the state rule for determining when the action is commenced applies

Question 14

Can a jury return a verdict on an issue not raised by the pleadings?

Answer 14

An issue not raised by the pleadings is treated as if raised in the pleadings if it is tried by the parties’ express or implied consent. In such a case, a party may move-at any time, even after judgment-to amend the pleadings to conform them to the evidence and to raise the unpleaded issue

Question 15

Who does the factfinding when a party brings legal and equitable claims in the same case and requests a jury trial?

Answer 15

If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury’s finding on fact issues will bind the court in the equitable claim.

Question 16

What are the requirements for an immediate appeal of an otherwise nonappealable interlocutory order under the Interlocutory Appeals Act?

Answer 16

Review under the Interlocutory Appeals Act is discretionary with the court and may be available when: (i) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an appeal would materially advance the conclusion of the case, and (ii) at least two appellate court judges agree to hear the appeal.

Question 17

How long does a party have to file a notice of appeal?

Answer 17

30 days from the entry of judgment to file a notice of appeal with the district court

Question 18

When an action involves multiple claims or parties, and the court enters a judgment as to fewer than all the claims or all the parties, can those claims or those parties appeal before the entire case is resolved?

Answer 18

When an action involves multiple claims or parties, and the court enters a judgment as to fewer than all the claims or all the parties, it is deemed a final, appealable judgment only to the extent the court makes an express determination that there is no just reason for delay.

Question 19

If a party fails to object to the court’s chosen jury instructions, what standard applies on appeal?

Answer 19

Plain error (as opposed to abuse of discretion had the objection been preserved)

Question 20

What is the standard an appellate court should apply in reviewing a trial court’s ruling on a post-trial motion for judgment as a matter of law?

Answer 20

When an appellate court reviews a trial court’s ruling on a post-trial motion for judgment as a matter of law (including a renewed one), it employs a de novo standard. It does so because the issue is one of law

Question 21

What is the standard an appellate court should apply in reviewing a trial court’s ruling on a motion for new trial?

Answer 21

when an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a clear showing of an abuse of discretion.

Question 22

Is removal ever allowed in a case involving no FQ and non-diverse parties?

Answer 22

If no federal question is involved and diversity does not exist because a party is a co-citizen of an opposing party (but the amount in controversy is satisfied), removal will be permitted if the nondiverse parties are thereafter dismissed from the action, the requirements for diversity jurisdiction are then present, and not more than one year has passed since the case was commenced in state court.

Question 23

In a properly removed case, is venue proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state?

Answer 23

Yes

Question 24

What are the time restrictions on removal of a diversity case?

Answer 24

time restrictions on removal of a diversity case to federal court: (1) a case based on diversity must be removed within 30 days of the defendant’s receipt of a copy of the paper (order, motion, etc.) that makes the case removable; but (2) in no event may the case be removed more than one year after it was commenced in state court

Question 25

Is additur or remittitur unconstitutional in federal courts?

Answer 25

A judge may find the jury’s verdict excessive or inadequate but may wish to avoid ordering a new trial if possible. When the judge is confident that the jury has decided the issue of liability properly but miscalculated the damages, he can choose to conditionally order a new trial unless the plaintiff agrees to reduce the damages awarded or the defendant consents to raising the damages awarded. When the damages are reduced, it is known as remittitur. When the damages are increased, it is known as additur.

Remittitur is valid in federal courts, but additur has been found in violation of the Seventh Amendment and is therefore not allowed in federal trials, even though many state courts permit additur.

Question 26

When are interlocutory appeals allowed under the collateral order doctrine?

Answer 26

The collateral order doctrine is a narrow exception to the finality requirement for appeals. Typically only final orders are reviewable by the appellate court, however, under this doctrine, a claim or issue may be immediately appealable if it is too important to wait.

There are three requirements:

(i) the lower court must have conclusively determined the disputed question;
(ii) the issue must be separate from and collateral to the merits of the main issue of the case; and
(iii) the issue must be effectively unreviewable on an appeal from the final judgment.

The doctrine is meant to be used only for extreme cases, and so far has only been applied to cases involving matters of immunity and double jeopardy, where there exists such a right so as not to even stand trial.

Question 27

When is joinder proper?

Answer 27

Joinder is proper where the claims arise from a single transaction, occurrence, or series of transactions or occurrences, and there is a common question of law or fact among all plaintiffs that will arise

Question 28

If two plaintiffs bring a suit together but have two unrelated claims, what should the court do?

Answer 28

The defendant should move to sever so that the plaintiffs must bring separate suits. A misjoinder of parties is NOT grounds for dismissing the suit altogether.