CP Mini Review

Question 1

when must process be served

Answer 1

90 days unless extended for good cause

Question 2

PJ analysis

Answer 2

1. state long arm
2. Constitution
   -Does hauling them in here offend traditional notions of fair play and substantial justice?
   Contacts
   -Purposeful availment and foresseability
   -Relatedness (Specific or general)
   -Fairness (factors - state, P, D)

Question 3

Proper Notice methods

Answer 3

PERSON
-to them
-registered agent
-abode + reasonable person
-state law methods
BUSINESS
-agent
-officer
-state methods

can’t be done by email unless parties agree

Question 4

service on foreign party

Answer 4

mail sent by clerk of the American court, requiring signed receipt (unless prohibited by foreign country’s laws)

Question 5

waiving process

Answer 5

P can request by mailing copy of complaint and 2 waiver forms
must be done within 30 days of receiving waiver
WAIVER EFFECTIVE ONCE P FILES IN COURT (after D signs and mails back waiver form)

Question 6

effect of waiver of process

Answer 6

DOES NOT WAIVE DEFENSES LIKE LACK OF PJ!

Question 7

which jdx can be waived

Answer 7

PJ. not SMJ.

Question 8

when is diversity jdx measured

Answer 8

when case filed (and if amended)

Question 9

75k excess requirement

Answer 9

must be good faith estimation/claim

Question 10

aggregation of claims

Answer 10

single p can aggregate against any one D. multiple P can aggregate against 1 D if common, undivided interest.

Question 11

joint claims

Answer 11

if joint tortfeasors, can aggregate claims for 75k req

Question 12

voluntary change of citizenship

Answer 12

A plaintiff can also create diversity by changing her state citizenship
after the cause of action accrued but before suit is commenced. If it is
a genuine change of citizenship, diversity is OK

Question 13

diversity removal reqs

Answer 13

D not citizen in state where filed
not more than 1 year since case filed
diversity when filed and at removal
excess 75k

Question 14

removal time period req

Answer 14

no limit if originally improper

Question 15

supplemental jdx approach

Answer 15

must have for every claim, counterclaim, etc.

1. check for diversity or federal q jdx
2. check for supplemental jdx [common nucleus of fact]
   Remember limitation on diversity [plaintiff can’t do unless exception]

remember, court can still deny it [complex state law issue, predominant state law issue, other claims denied, extraordinary circ]

Question 16

venue choices

Answer 16

any district where:
-all defendants reside [human - domicile; business - anywhere subject to PJ]
-a substantial part of the claim arose or a substantial part of the property involved in the lawsuit is

don’t apply if case is removed tho. just remove it to where filed.

Question 17

transfer from proper venue effect on choice of law

Answer 17

When a diversity case is filed in a proper venue but the court orders
transfer under statute #1, the transferee court must apply the choice
of law rules of the transferor court (unless transfer is to give effect to
a valid forum selection clause, as we will see below).

Question 18

transfer from improper venue effect on choice of law

Answer 18

transferee applies its own choice of law rules (so P can’t benefit by filing in an improper forum)

Question 19

complaint requirements

Answer 19

-statement of grounds of SJ jdx
-short and plain statement of the claim showing P entitled to relief
-demand for relief sought

Question 20

Rule 12b grounds for dismissal

Answer 20

Lack of SMJ;
Lack of PJ;
Improper venue;
Insufficient process;
Insufficient service of process;
Failure to state a claim upon which relief can be granted; and
Failure to join a party under Rule 19

Question 21

what must an answer contain

Answer 21

1. Admittance or denial of all complaint allegations (failure to deny constitutes admission)
2. Affirmative defenses (if D fails to raise in answer, they will be waived)
   Self-defense
   Statute of Frauds
   Statute of Limitation
   Contributory negligence
   Claim preclusion
   Fraud

Question 22

which 12b defenses are waived if not filed w the 12b motion

Answer 22

Lack of personal jurisdiction
Improper venue
Insufficient process
Insufficient service of process
Motion for a more definite statement

Question 23

when do amendments adding parties relate back

Answer 23

If:
-Amendment arises out of the same conduct, transaction, or occurence as the original pleading; and
-Within 90 days after the complaint is filed, the new D:
Received notice & will not be prejudiced; and
Knew or should have known that the action would have been brought but for a mistake concerning the proper party’s identity (i.e. the suit was foreseeable)

Question 24

for a class action when claims arise under state law and parties are citizens of different states that have different laws on the claims, is commonality defeated?

Answer 24

likely yes (frequently tested)

Question 25

4 class action reqs

Answer 25

Numerosity: so numerous that joinder is impractical;
Commonality: question of law or fact common to the class;
Typicality: claims of reps are typical of those of the class, thus ensuring reps have incentive to litigate in a way that protects class; and
Representativeness: rep parties will fairly and adequately protect the interests of the class

Question 26

During discovery, electronically stored information need not be produced if the responding party identifies it as:

Answer 26

not reasonably accessible bc of undue burden or cost

Question 27

A car collector bought a car with gold leaf paint from a manufacturer. During the first month, all the gold leaf paint peeled off. The collector sued the manufacturer, and during discovery served an interrogatory asking the manufacturer to identify all other purchasers of the gold leaf paint over the previous 10 years. The manufacturer was aware that only about 25 of the 2 million buyers of its cars have ordered the gold leaf option. The manufacturer has retained copies of all sales forms, but has not maintained separate files of the buyers of each particular option.

In a court using the federal rules, what are the manufacturer’s obligations with respect to the collector’s interrogatory?

Answer 27

Assuming the interrogatory is otherwise proper, the manufacturer may search the 2 million order forms itself or it may allow the collector access to the files. In a situation where desired information may be ascertained from the business records of the party on whom the interrogatory was served, and where the burden of finding the information is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to provide the serving party reasonable opportunity to examine the records.

Question 28

For venue purposes, a business entity defendant is deemed to reside in:

Answer 28

Any judicial district in which the defendant is subject to the court’s personal jurisdiction with respect to the action in question

Question 29

rules on venue and transfer

Answer 29

Pursuant to Rule 12(b), improper venue must be raised in a defendant’s first response-either in its timely motion to dismiss before the answer or in the answer, whichever is first. Here, though, venue was initially proper because the defendants resided in State B. Rather, the issue is whether the court may transfer the case from one proper venue to another. Such a transfer has no strict time limit. Rather, transfer is left to the discretion of the trial judge, and the judge may refuse transfer where the case has been pending for some time and would work a prejudice to one of the parties.

Question 30

if not allowed by state court, is mailing a copy of the summons and complaint sufficient to serve notice on an individual

Answer 30

no

Question 31

In a federal question case, the action is always deemed commenced for statute of limitations purposes when:

Answer 31

the complaint is filed w the court

Question 32

can the lawyer of a party serve process

Answer 32

yes. they r not a party

Question 33

can a district court order an interloc appeal

Answer 33

Yes, the judge may do so in a written order stating:

Order being appealed involves a controlling question of law;
There is a substantial ground for difference of opinion; and
Decision on the appeal could help bring about the end of litigation

Question 34

clearly erroneous

Answer 34

When, in light of all the evidence in the record, the appeals court has a “definite and firm conviction that a mistake has been committed.”

Question 35

when must an affirmative defense be raised

Answer 35

in answer or considered waived

Question 36

What factors determine whether claims are sufficiently related for the purposes of claim preclusion (res judicata)?

Answer 36

Whether facts are related in time, space, origin, or motivation;
Whether they form a convenient trial unit; and
Whether their treatment as a unit conforms to the parties’ expectations

Question 37

issue preclusion reqs

Answer 37

Same issue was actually litigated and determined;
Issue was essential to the judgment (ie if decided on in the opposite way it would change the result of the case);
Valid final judgment on the merits;
Party against whom preclusion is asserted must have had a full and fair opportunity to litigate the issue in the first suit

Question 38

What is non-mutual offensive collateral estoppel?

Answer 38

P tries to prohibit D from relitigating issue D previously lost against another P.

⚠️ Note: Rarely granted

Question 39

What is non-mutual defensive collateral estoppel and when is it allowed?

Answer 39

When a new D seeks to assert a final judgment decided in a prior suit against P.

Only allowed if P had a full chance to litigate the issue previously.

Question 40

When an action involves multiple claims or parties, and a judgment is entered that disposes of only some of the parties or claims, the judgment

Answer 40

Is immediately appealable only to the extent that the court makes an express determination that there is no just reason for delay

Question 41

what review level for a post-trial judgment as matter of law motion

Answer 41

de novo

Question 42

what review of review for new trial motion

Answer 42

abuse of discretion

Question 43

is this true: In a properly removed case, venue is 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 43

yup

Question 44

time restrictions on removal for diversity cases

Answer 44

There are essentially two 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 45

issue with removal to state courts

Answer 45

No, because removal to state court is not available for cases that are properly filed in federal court and that are within the federal court’s subject matter jurisdiction.

no such rule. only from state to fed

Question 46

claim preclusion reqs

Answer 46

The earlier and the latter causes of action [same T/O] were brought by the same claimant against the same defendant

claim “barred” if jury rules against
if plaintiff won, claim “merges”

Question 47

issue preclusion elements

Answer 47

For a party to be bound by issue preclusion, (i) there must have been a final judgment; (ii) the issue must have been actually litigated and determined; (iii) the issue must have been essential to the judgment; and (iv) the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action.

issue is “barred” if previously lost; merges if won

Question 48

A and B, who were each driving his own car, collide and each is
injured and each car is damaged. In Case 1, A sues B to recover for
personal injuries. A valid final judgment is entered.
In Case 2, B sues A to recover for injuries from the same wreck. Is
Case 2 dismissed under claim preclusion?

Answer 48

no. case 1 and case 2 were not brought by the same claimant against the same defendant, so claim preclusion cannot apply. however, case 2 will be dismissed under the compulsory counterclaim rule

Question 49

nonmutual offensive v defensive preclusion

Answer 49

offensive:
The person using preclusion was not a party to Case 1 and is the
plaintiff in Case 2

defensive:
The person using preclusion was not party to Case 1 and Is the DEFENDANT in Case 2.

Question 50

venue rules

Answer 50

–Brought: in district where any D resides, if all reside in same state OR where a substantial portion of the cause of action arose
* If neither applies, use fallback: any district where D is subject to PJ for that action [but unlikely you will have to use fallback unless majority of claim arose outside of US]

corps? use something that looks like fallback provision

Question 51

permissive joinder

Answer 51

-same T/
-jointly, severally, or alternatively L
-same common Q of fact or law

Question 51

permissive joinder

Answer 51

-same T/
-jointly, severally, or alternatively L
-same common Q of fact or law

Question 52

aggregation of claims

Answer 52

FOR A SINGLE PLAINTIFF AGAINST A SINGLE DEFENDANT, that plaintiff may aggregate ALL of her claims against a single defendant
They need not be related to each other

Question 53

legal representatives for minors, decedents, etc.

Answer 53

do not consider THEIR residence location for diversity….consider the person they are representing

Question 54

Seller enters into kx where buyer agrees to purchase corp securities. Buyer then refuses to go through with cus thinks it violates federal securities law. Seller sues buyer for 500k in damages. Doesn’t think implicates fed securities law. Does court have SJ?

Answer 54

If meets diversity.
But not for FQ. Must be plead ON FACE OF COMPLAINT. And P didn’t do so here. Just bc D assumed fed Q was involved is not enough. And fact that D might raise fed Q as a defense is insufficient.

Question 55

A pedestrian was injured in a car accident involving two cars. The pedestrian filed a negligence action against both drivers in federal district court, seeking to hold them jointly and severally liable for $500,000. The pedestrian is a citizen of State A, and both drivers are citizens of State B. The first driver then asserted a cross-claim against the second driver, claiming that the second driver’s negligence was the sole cause of the accident and seeking to recover from the second driver $15,000 for the damage done to the first driver’s car.

Does the federal court have subject matter jurisdiction over the cross-claim?

Answer 55

yes. supplemental. same common nucleus of fact.

Question 56

may a plaintiff invoke supplemental jdx to make claims against an impleaded party?

Answer 56

no

Question 57

can cross claims by defendants utilize supplemental jdx

Answer 57

yes!!!

Question 58

A car buyer, a resident of State A, wished to purchase a new car. After shopping both online and in person for the best price, the buyer decided to purchase a car from a dealer in State B. The buyer drove to the State B dealership, signed a sales contract, paid for the car, and drove the car back home to State A. Three months later, the buyer was in an accident in State A while driving the new car. The other driver in the accident was a resident of State B who was just passing through State A. The other driver filed a negligence action against the buyer in a court in State B.

Does the buyer have sufficient contacts with State B such that a State B court could exercise personal jurisdiction over the buyer for the negligence action?

Answer 58

no bc altho the buyer had purposeful contacts w state B, they are not related to the claim asserted.

Question 59

does mere accessibility or ability to buy from a website from a forum state, absent more, render that company sufficiently connected to the forum state

Answer 59

no

Question 60

Question
A bar prep company discovered that its copyrighted content was being used in an online simulated exam that its competitor was administering in a few days. The company filed a petition for an ex parte order to direct the competitor to immediately remove that content from its website. The company submitted an affidavit specifying why immediate and irreparable injury will result if the exam is administered, and offered to provide security for any costs or damages incurred by the competitor if it was determined that the order was wrongfully issued.

Should the court issue the order?

Answer 60

no. nothing about them trying to contact the other party or why notice should not be required.

Question 61

must victims injured in the same accident sue at the same time?

Answer 61

no. not compulsory.

Question 62

If a state does not recognize any claim of contribution among joint tortfeasors, if sued in that state, may one tortfeasors implead another tortfeasor?

Answer 62

no bc can only implead if there is a viable claim for contribution or indemnity.

Question 63

A former shareholder of a corporation filed an action against the corporation’s board of directors, alleging that the directors’ wrongful actions diminished the value of the corporation and its stock. The former shareholder served a request for production of documents that included a request for any documents relating to the value of the corporation. The corporation produced a number of documents, but withheld certain documents that were written by its attorneys, claiming that the documents were protected from discovery under the attorney-client privilege. Without contacting or conferring with the corporation or its lawyer, the former shareholder filed a motion to compel production of the withheld documents, claiming that they were not covered by the privilege. The court ruled that the documents were not privileged and had to be produced.

What will be the likely result if the former shareholder seeks to recover costs or attorneys’ fees related to the motion or to have sanctions imposed on the corporation?

Answer 63

will probably not get attorneys fees/costs or sanctions bc cannot certify that they made a good faith effort to confer w the opponent to obtain discovery absent court interventions. they must do this!!!

Question 64

An office furniture supplier filed a breach of contract action against a law firm in federal district court to recover the balance due on an account for furniture it supplied. The law firm filed a motion to dismiss the action on the ground that service of process was improper. Following a hearing, the court held that service was proper and sufficient. Two more months passed without the law firm filing an answer. The supplier then filed a motion to have the clerk of court make an entry of default, and the clerk did so.

What procedure must the supplier follow to obtain a default judgment against the law firm?

Answer 64

File a motion to have the judge enter the default judgment, and the judge may do so as long as the firm receives additional notice of the motion for DJ.

Why not the clerk? BECAUSE THE DEFENDANT HAS “APPEARED” via a Motion to Dismiss. Clerk can only do if no appearance.