civpro

Question 1

Discovery (3573)

Answer 1

Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action. Information within the scope of discovery need not be admissible in evidence to be discoverable. The test is whether the information sought is relevant to any party’s claim or defense. In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Such material will be subject to discovery, however, if the party shows that is has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

Question 2

Discovery (3573)

Answer 2

A party may request that the other party produce and permit the inspection of any discoverable documents or electronically stored information. Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence for discovery. When litigation is reasonably anticipated, even if it has not yet been commenced. Potential litigants in possession of potentially relevant evidence have a duty to preserve such evidence. Once a duty to preserve evidence is triggered, the party in possession of the evidence must take reasonable measures to preserve it. If a party has a policy in place that results in routine operations that may destroy evidence, such as electronically stored information, that party must affirmatively act to prevent the destruction or alteration of such evidence, even if the destruction would typically occur in the regular course of business. A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation.

Question 3

Sanctions (3573)

Answer 3

Sanctions are authorized for spoilation of evidence only if the information cannot be restored or replaced by additional discovery. In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence. When retrieval of the information is possible, even if typically considered inaccessible due to cost or retrieval, a court may order it and assign the costs to the party who destroyed the evidence; no further sanctions may be imposed. If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order alternate sanctions against the wrongful party, limited to the court’s discretion of those necessary to cure any prejudice to the other party. If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s use in litigation, then the available sanctions include: (i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party, (ii) a jury instruction that it may or it must presume the information was unfavorable to the party, or (iii) an entry of a default judgment against the party.

Question 4

Removal (2613)

Answer 4

Generally, the defendant in any civil action filed in state court has the right to remove it to the district court for the district in which the state court action was filed as long as the civil action is within the original jurisdiction of a US district court. Federal courts may exercise original diversity jurisdiction when: (i) the parties to an action are citizens of different states; (ii) the amount in controversy exceeds $75,000. Generally a plaintiff’s good faith assertion in the complaint that the actions satisfies the amount in controversy requirement is sufficient, unless it appears to a legal certainty that the plaintiff cannot recover the amount alleged. In actions where federal jurisdiction is based on diversity, a defendant cannot remove the case to federal court if the case was filed in a state court in the defendant’s home state.

Question 5

Venue (2613)

Answer 5

For the convenience of the parties and in the interest of justice, a district court may transfer any civil action to any other district or division it might have been brought. Venue is proper in a judicial district in which any defendant resides or in a judicial district in which a substantial part of the events or omissions on which the claim is based occurred. Moreover, when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clauses specifies a federal forum, most circuits treat the clause as prima facie valid, to beset aside only upon a strong showing that transfer would unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. Furthermore, the Supreme Court held that a forum selection clause should be given “controlling weight in all but the most exceptional cases”, even if the clause is unenforceable under applicable state law.

Question 6

Venue (4497)

Answer 6

Venue concerns which court among the courts having PJ and SMJ is the proper forum for hearing the matter. In general, venue in a federal civil action is proper: (1) where any defendant resides, if all defendants reside in the same state, or; (2) where a substantial part of the events on which the claim is based occurred. If there is otherwise no judicial district in which a claim may be brought, venue is proper in a judicial district in which the defendant is subject to PJ.

Question 7

Transfer/Conflict of Law/Contract Clause (Venue) (2613)

Answer 7

Generally, if the venue of an action is transferred when the original venue is proper (as discussed above), the court to which the action is transferred must apply the law of the state transferor court, including the state’s rules regarding conflict of law. However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including choice of law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.

Question 8

Transfer/Conflict of Law/Contract Clause (Venue) (4494)

Answer 8

If there is an express choice of law provision in a contract, then that choice of law in the contract will generally govern unless there is no significant basis for the parties’ choice or its contrary to the public policy.

Question 9

Claim Preclusion (Res Judicata) (2753)

Answer 9

The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action. For claim preclusion, to apply, the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action. Because application of claim preclusion is limited to the parties (or their privies), a similar action by a different party would not be precluded.

Question 10

Issue Preclusion (Collateral Estoppel) (2753)

Answer 10

The doctrine of issue preclusion (collateral estoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with thar party) must have been a party to the original action (ie. offensive collateral estoppel). Other elements necessary for issue preclusion to apply are that: (i) the issue sought to be precluded must be the same as that involved in the prior action; (ii) the issue must have been actually litigated in the prior action; (iii) the issue must have been determined by a valid and binding judgment, and; (iv) the determination of the issue have been essential to the prior judgment.

Question 11

Issue Preclusion (Collateral Estoppel) (2753)

Answer 11

However, trial courts have broad discretion to determine when issue preclusion should apply. If a plaintiff could easily have joined in the earlier action, a trial judge should not allow use of offensive collateral estoppel.

Question 12

Issue Preclusion (Collateral Estoppel) (5543)

Answer 12

The doctrine of issue preclusion, often called “collateral estoppel,” precludes the re-litigation of issues of fact or law that have already been necessarily determined in an earlier adjudication. A party asserting that collateral estoppel precludes re-litigation of a factual issue must establish: (1) the issue sought to be precluded is the same as in the prior action and the relevant facts and applicable law must be identical; (2) the issue must have been actually litigated in the prior action; (3) the issue must have been determined by a valid and binding final judgment, and; (4) the determination of the issue must have been essential to the prior judgment. In addition, the party to be precluded must have been a party to the original action.

Question 13

Issue Preclusion (Collateral Estoppel) (5543)

Answer 13

Unlike claim preclusion, issue preclusion does not require strict mutuality of parties. It requires only that the party against whom the issue to be precluded was a party to the original action. Thus, “offensive” use of collateral estoppel is permitted. Trial courts have broad discretion to determine whether offensive collateral estoppel should be applied. If a plaintiff could easily have been joined in the earlier action or if offensive estoppel is found to be unfair to the defendant, then a trial judge should not allow it.

Question 14

Issue Preclusion (Collateral Estoppel) (5543)

Answer 14

The preclusive effect of federal judgments is typically determined under federal law. However, federal common law requires that the preclusive effect of a judgment by a federal court sitting in diversity must be governed by the law of the state where the federal court is located.

Question 15

Intervention (As of Right) (3403)

Answer 15

Under Rule 24, a nonparty has the right to intervene in an action when, upon timely motion: (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interest; and (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene. Under Rule 24, a nonparty has the right to intervene in an action when, upon timely motion: (1) the nonparty has interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interest, and; (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the parky seeking to intervene.

Question 16

Permissive Joinder (3403)

Answer 16

Under permissive joinder, a district court may join a nonparty (but is not required to) to a suit if the nonparty has a claim or defense that shares with the main action a common question of law or fact. The court must also consider whether the intervention will unduly delay or prejudice the adjudication of the original parties. Under permissive joiner, a district court may join a nonparty (but is not required to) to a suit if the nonparty has a claim or defense that shares with the main action a common question of law or fact. The court must also consider whether the intervention will unduly delay or prejudice the adjudication of the original parties.

Question 17

9. Permissive Joinder (5543)

Answer 17

Under FRCP 20, persons may join in one action as plaintiffs if: (1) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence, and (2) there will be any question of law or fact common to all plaintiffs.

Question 18

Temporary Restraining Order (TRO) (3403)

Answer 18

A TRO preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a PI. A TRO has immediate effect and lasts no longer than 14 days unless good cause exists. A TRO can be issued without notice to the adverse party if the moving party can show: (1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments, and; (2) the efforts made at giving notice and the reason why notice should be required. Additionally, the party seeking a TRO must give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully restrained. A TRO preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a PI. A TRO has immediate effect and lasts no longer than 14 days unless good cause exists. A TRO can be issued without notice to the adverse party if the moving can show: (1) the mediate and irreparable injury will result prior to hearing the adverse party’s arguments, and; (2) the efforts made at giving notice and the reason why notice should be required. Additionally, the party seeking a TRO must give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully convicted.

Question 19

Preliminary Injunction (PI) (3403)

Answer 19

A PI can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a PI must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to incur irreparable harm in the absence of the relief; (3) the balance of equities is in his favor, and; (4) the injunction is in the best interest of the public. Additionally, the party seeking the PI must provide security (typically in the form of a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully enjoined. A PI can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a PI must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to incur irreparable harm in the absence of relief; (3) the balance of equities is in his favor, and; (4) the injunction is in the best interest of the public. Additionally, the party seeking the PI must provide security (typically in the form of a bond) to cover the costs and damages sustained by a party that is ultimately found to be have been wrongfully enjoined.

Question 20

Subject Matter Jurisdiction (SMJ) (4983)

Answer 20

Subject matter jurisdiction (SMJ) is a court’s competence to hear and determine cases of the general class and subject in which the proceedings belong. For a federal court to have SMJ over a complaint, it must have either federal question (FQ) or diversity jurisdiction (DJ). For DJ to exist, both the amount in controversy (AIC) and diversity of citizenship requirements must be met.

Question 21

Subject Matter Jurisdiction (SMJ): AIC (4983)

Answer 21

The AIC requirement mandates that the AIC must exceed $75,000. In general, a plaintiff’s good faith assertion in the complaint that the action satisfies the AIC requirement is sufficient, unless it appears to be of a legal certainty that the plaintiff cannot recover the amount alleged. The AIC requirement mandates that the AIC must exceed $75,000. In general, a plaintiff’s good faith assertion in the complaint that the action satisfies the AIC requirement is sufficient, unless it appears to be of a legal certainty that the plaintiff cannot recover the amount alleged.

Question 22

Subject Matter Jurisdiction (SMJ): Diversity of Citizenship (4983)

Answer 22

For the diversity of citizenship requirements to be met, there must be complete diversity between the opposing parties where the action is filed. There is no diversity of citizenship if any plaintiff is a citizen of the same state as any defendant. For an individual to be a citizen of a state, the individual mut be a citizen of the US and a domiciliary of a state. In general, an individual is a domiciliary of the state in which she is present and intends to reside for an indefinite period. An individual can have only one domicile at a time. The presumption is that a place of domicile continues until is definitively changed. An intent to move without relocation to another state will not result in a change of domicile. iii. For the purposes of DJ, a corporation is a citizen of its state of incorporation and the state where it has its principal place of business (PPOB). The PPOB refers to the nerve center of the corporation, which is generally the corporate headquarters.

Question 23

Subject Matter Jurisdiction (SMJ): Diversity of Citizenship (313)

Answer 23

Under federal law, a US district court has DJ over a matter if no plaintiff shares the state of citizenship of any defendant and the AIC in the case exceeds $75k. Further, the defense of lack of SMJ may be raised at any time through litigation, as it is not waivable and may properly be waived at any time.

Question 24

Personal Jurisdiction (PJ) (4983)

Answer 24

a. In addition to having SMJ, a court must be able to exercise judicial power over the persons or property involved in the case or controversies before it, known as personal jurisdiction (PJ). A federal district court must generally determine PH as if it were a court in the state in which it was situated. Thus, the federal court will look to state jurisdictional statutes to determine if it has PJ. The forum state must have a long arm statute that permits its courts to exercise PJ to the maximum extent allowed by the 14th Amendment of the US Constitution. The Due Process Clause of the 14th Amendment permits a court to exercise PJ over a defendant if the defendant has minimum contacts with the forum state such that the maintenance of the action does not offend notions of fair play and substantial justice. A defendant’s contacts with the forum state must be purposeful and substantial, such that the defendant should reasonably foresee being taken to court there. Foreseeability depends on whether a defendant recognizes or anticipates that by running his business, he risks being party to a suit in a particular place.

Question 25

Specific PJ (4983)

Answer 25

When a cause of action arises out of or closely relates to a defendant’s contacts with the forum state, jurisdiction must be warranted over that action even if that contact is the defendant’s only contact with the forum state. This type of jurisdiction is often referred to as specific PJ. For specific PJ to exist, there must be an affiliation between the forum state and the underlying controversy, activity, or occurrence that takes place in the forum state and is therefore subject to the State’s regulation.

Question 26

General PJ (4983)

Answer 26

To determine whether the corporation is subject to general PJ, the proper inquiry is whether a corporation’s affiliations with the forum state are so continuous and systematic as to render the corporation essentially at home in the forum state. A corporate defendant is always at home in the state of the corporation’s place of incorporation and state of its PPOB. In exceptional cases, a corporate defendant’s operations in another forum state may be so substantial and of such a nature as to render the corporation also at home in that state.

Question 27

13. Personal Jurisdiction (PJ) (4497)

Answer 27

A federal court must look to the state jurisdiction’s statutes to determine whether it has PJ over the parties and whether exercising PJ complies with due process. Most states have enacted long arm statutes to authorize PJ over nonresidents who engage in some activity in the state. In general, due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice. If a defendant is voluntarily present in the forum and is served with process while there, the court has PJ over the defendant. However, most courts have two exceptions to this rule: fraud and mere passing through.

Question 28

Transfer (4983)

Answer 28

A court has the authority to transfer the case to another court in order to avoid a jurisdictional problem.

Question 29

Amending Pleadings (2586)

Answer 29

Generally, the defendant’s answer must state any avoidance or affirmative defense the defendant has, or that is deemed waived. However, The Rules provide that pleadings can and should be amended by leave of court when justice so requires it. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party.

Question 30

Amending Pleadings (4494)

Answer 30

Under Rule 12h1, if a party makes a pre-answer motion, the motion must raise the defense of insufficient service of process in the pre-answer motion, or the defense is waived. (Exception:) However, the courts have generally allowed a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion. This in line with the Federal Rules’ liberal policy with regard to amendments, and there would be no undue prejudice to the opposing party.

Question 31

Summary Judgment (SJ) (2586)

Answer 31

A motion for summary judgment should be granted if the pleadings, discovery, and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the non-moving party. In ruling on a motion for summary judgment, the court is to construe all evidence in the light most favorable to the non-moving party and resolve all doubts in favor of the non-moving party. A motion for summary judgment should be granted if the pleadings, discovery, and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the non-moving party. In ruling on a motion for summary judgment, the court is to construe all evidence in the light most favorable to the non-moving party and resolve all doubts in favor of the non-moving party.

Question 32

Federal Question Jurisdiction (FQ) & Diversity Jurisdiction (DJ) (5665)

Answer 32

Federal question (FQ) jurisdiction grants the district courts original jurisdiction of al civil actions arising under the Constitution, laws, or treaties of the US. In general, if the cause of action in question expressly created by federal law, and federal law provides the underlying right, then federal question jurisdiction will exist. In addition, Congress gave the US district courts diversity jurisdiction over civil actions when the parties to an action are citizens of different and the amount in controversy exceeds $75,000.00 Diversity jurisdiction requires complete diversity between opposing parties in a case. There is no diversity of jurisdiction if any plaintiff is a citizen of the same state as any defendant.

Question 33

Federal Question Jurisdiction (FQ) & Diversity Jurisdiction (DJ) (4497)

Answer 33

Federal question jurisdiction provides that the district court have original jurisdiction over all civil actions arising the Constitution, laws, or treaties of the U.S. If the cause of action is expressly created by federal law, and federal law provides the underlying right, then federal question jurisdiction will exist. Under diversity jurisdiction (DJ), district courts have jurisdiction over civil actions when: (1) the parties are citizens of different states, and; (2) the amount in controversy exceeds $75,000. There is no diversity of citizenship if any plaintiff in the case is a citizen of the same state as any defendant in the case.

Question 34

18. Supplemental Jurisdiction (5665)

Answer 34

A district court with jurisdiction over a claim may exercise supplemental jurisdiction over additional claims over which the court would not independently have SMJ (usually state law claims against a nondiverse defendant) but that are so related to the original claim the additional claims form part of the same case or controversy under Article III of the US Constitution. In judging whether the claims are related, the test is whether they arise out of a “common nucleus of operative fact” such that all claims should be tried together in a single judicial proceeding.

Question 35

18. Supplemental Jurisdiction (4497)

Answer 35

A district court with jurisdiction over a claim may exercise supplemental jurisdiction over additional claims over which the court would not independently have SMJ. The additional claim must be so related to the original claim that it forms part of the same case or controversy. The test is whether they arise out of CNOF such that all claims should be tried together in a single judicial proceeding.

Question 36

Erie Doctrine (Rules Enabling Act, Rule 8a) (5665)

Answer 36

If there is a valid federal rule of procedure on point, then the court must determine whether the rules is valid under the Rules Enabling Act. Specifically, the court must ask whether the Federal Rule abridges, enlarges, or modifies any substantive right. Pursuant to this act, the FRCP have been created, and apply to all civil action and proceedings in federal court, including actions that raise state law claims. Under Rule 8a, a complaint (or any pleading in which a claim is made) must include a short and plain statement of the claim establishing entitlement to relief. There are no special pleading rules for a defamation case under the Federal Rules. Thus, Rule 8a generally applies to any claim brought in federal court and will prevail over any state-law pleading rules.

Question 37

Erie Doctrine (Rules Enabling Act, Rule 8a) (5320)

Answer 37

When an action is commenced in U.S. district court, the court must determine the substantive law and rules of procedure that will govern the action. In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located, if there is no federal law on point. With regard to procedure in a diversity action, if a procedural issue is addressed by a valid federal law, such as a statute, then the federal law will be applied, even if a stat rule or statue is in conflict.

Question 38

19. Erie Doctrine (4494)

Answer 38

A federal court sitting in diversity must apply the substantive law of the state in which it sits, including that state’s choice of law rules.

Question 39

Counterclaim (5543)

Answer 39

A counterclaim is a claim for relief made against an opposing party after an original claim has been made. A defendant must include in her answer to a complaint any claim that the defendant has against the plaintiff that arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim. A party who fails to assert a compulsory counterclaim waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court.

Question 40

Diversity Citizenship Class Action (5320)

Answer 40

Diversity in a class action brought pursuant to Rule 23 will generally be determined by the citizenship of the named members of the class bringing the lawsuit. For certain class actions in which the amount at issue total more than $5 million, diversity will be met if any member of the plaintiff class is diverse with any defendant. A corporation is deemed to be a citizen of every state in which it has been incorporated and of the state where it has its PPOB. A corporation’s PPOB is generally its corporate headquarters (nerve center). An individual is a domiciliary of the state in which he is present and intends to reside for an indefinite period. Additionally, a plaintiff’s good faith assertion in the complaint that satisfies the AIC is sufficient, unless it appears to a legal certainty that the plaintiff cannot recover the amount alleged.

Question 41

Standing (5320)

Answer 41

Article III, Section 2 restricts judicial power to “cases” and “controversies”. A federal court cannot decide a case unless the plaintiff has standing to bring it. To have standing, a plaintiff bears the burden of establishing 3 elements: (1) injury in fact; (2) the injury was fairly traceable to the challenged action (causation), and; (3) the relief requested must prevent or redress the injury. Standing requires a concrete and particularized injury, even in the context of a statutory violation. The injury need not be physical or economic. An injury such as the invasion of privacy may be a sufficiently concrete injury in itself even when extensive damages cannot be proved.

Question 42

Class Actions (5320)

Answer 42

Class actions can be maintained in federal court, despite a state law barring class actions to enforce statutory damages, if the action is authorized by Rule 23. Rule 23a establishes four requirements for rep members of a class to sue or be sued on behalf of members of the class: (1) the class must be so numerous that joinder of all members is impracticable; (2) there must be questions of law or fact that are common to the class; (3) the claims or defenses of the reps must be typical of the class (typicality), and; (4) the reps must fairly and adequately protect the interest of the class (adequacy).

Question 43

Full Faith & Credit (313)

Answer 43

Under the US Constitution, state courts are required to give full faith and credit to valid judgments of other states. State courts are likewise required to treat federal judgments as those judgments would be treated by the federal courts. The issues decided in one court cannot be-litigated in another, and the state in which enforcement is sought must honor the judgment of the federal court. Therefore, a party against whom enforcement of a judgment is sought may collaterally challenge the original state judgment based on a lack of SMJ only if the jurisdictional issues were not litigated or waived in the original action.

Question 44

Service of Process (4494)

Answer 44

FRCP 4e allows service by delivering a summons and complaint to an individual or by leaving a copy of each at the individual’s residence or usual place of abode with someone of suitable age or discretion who resides there.