Fed Civ Pro

Question 1

Personal JDX

Answer 1

The court’s ability to exercise authority over parties on their property.

Requires Statutory Authorization (Long-Arm) and Constitutional

Question 2

In Rem PJ

Answer 2

JDX over property or status, including ownership disputes.

Property must be physically located in the forum.

Often involves estate issues (action to quiet title, dissolve marriage, etc.)

Question 3

Quasi in rem PJ

Answer 3

JDX over persons where property attached.

i.e. action against D and his assets due to fears D will flee the state.

Question 4

In personam PJ

Answer 4

JDX over persons.

Based upon a person’s contacts with the forum.

Question 5

Traditional JDX PJ

Answer 5

Service of Process in the forum
Domiciled in the forum
Consent to PJ in the forum
General Appearance (i.e. appearing for any part of the case prior to challenging PJ)

Question 6

Long Arm PJ

Answer 6

Generally by long-arm statute and requires due process.

Whether there were sufficient minimum contacts with the forum such that asserting JDX does not offend traditional notions of fair play and substantial justice.

Question 7

Purposeful Availment PJ

Answer 7

Taking action purposefully directed at the forum state.

Could be putting goods into stream of commerce or interactive website.

Question 8

Foreseeability PJ

Answer 8

It must be foreseeable the defendant would be haled into court in the forum.

Question 9

Specific v. General (Related) PJ

Answer 9

The closer the contact to the related claim, the less contacts needed (may only need the one).

If claims arise from in-state contacts, only minimum contacts required.

If claims do not arise from in-state contacts, must have systematic, continuous contacts with forum

Question 10

Fairness PJ

Answer 10

D’s burden v. forum state’s interest in adjudicating, plaintiff’s interest in convenience, access to evid and witnesses, interstate efficiency, and shared interest in furthering social policy.

Question 11

Notice

Answer 11

Due process requires the defendant must be sufficiently notified of a pending lawsuit.

Question 12

Requirements Notice

Answer 12

Notice must be reasonably calculated under the circumstances to apprise interested parties of the pendency of the action and afford an opportunity to be heard.

Question 13

Methods of Notice

Answer 13

Traditional methods of notice satisfy due process
» E.g., personal delivery, registered mail, delivery to an
appointed agent
» P need not deliver notice personally; can be given by
court-appointed agent or agent hired by P
» See cards 20-21 on Service of Process
• If P knows notice was not received by D (e.g., by mail), P
cannot proceed if practical alternatives to giving notice exist

Question 14

SMJ

Answer 14

Federal courts must have authority over the claim in questions
(as opposed to the parties or property, which is the concern of PJ); SMJ refers to courts’ ability to exercise that authority
• Const. provides limits on types of cases federal courts can hear
• SMJ cannot be waived
Types of SMJ:
1) Diversity JDX
2) Federal question JDX
3) Supplemental JDX
4) Removal JDX

Question 15

Diversity SMJ

Answer 15

Federal courts have SMJ over controversies between citizens of different states, even where claims do not involve federal law
• Diversity jx conferred by Const. and by statute
• Purpose is to protect out-of-state parties from potential bias in state courts

Question 16

Requirements of Diversity SMJ

Answer 16

Complete Diversity and Amount in Controversy

Question 17

Complete Diversity SMJ

Answer 17

Every P must be of diverse
citizenship from every D (i.e., no diversity if any P is citizen of same state as any D)
» Does not require that all parties be citizens of different
states; just no P and no D can be from same state (e.g.,
two Ps can be from Utah, as long as no D is from Utah)
» Examined at time of filing — diversity need not exist
when claim arose
» Diversity can exist between citizen of U.S. state and a
foreign country (sometimes called “alienage jx”)
2) Amount in controversy must exceed $75,000 (see card

Question 18

Amount in Controversy SMJ

Answer 18

P must make good faith allegation that her claim
exceeds $75k

For court to dismiss for insufficient amount, there must be no legal possibility of recovery exceeding $75k
• Amount actually awarded irrelevant

Question 19

Exclusions to Diversity SMJ

Answer 19

Federal courts will not hear actions involving divorce, alimony, child custody, or probate, even if diversity requirements are otherwise satisfied

Question 20

Individual Citizenship SMJ

Answer 20

Citizens of state where domiciled at the
time suit is filed
» Domicile is where a person maintains a permanent
home to which they intend to return
• Person cannot have more than one domicile
» Factors — for determining person’s domicile, look at:
• Physical — actual presence in the state
• Mental — intent to make state permanent home
(e.g., where person votes, works, is licensed, etc.)
» Legal representatives of decedents, minors,
incompetents — look to citizenship of decedent, minor,
etc., not citizenship of representative

Question 21

Corporation Citizenship SMJ

Answer 21

Citizens of every state where incorporated and where corp. maintains principle place of business (“PPB”)
» I.e., corp. can have multiple states of citizenship
» Determining PPB: look to where corp. decisions made, i.e., the “nerve center” (usually corp. headquarters)

Question 22

Unincorporated Business Citizenship SMJ

Answer 22

(LLCs, LLPs, etc.) — citizens of all states in which any partner or member is a citizen

Question 23

Equitable Relief SMJ

Answer 23

Court looks at value of harm caused
• Can look from either P or D perspective — i.e., does act requiring injunctive relief harm P by more than $75k; or would it cost D more than $75k to comply with injunction sought?

Question 24

Aggregation of Claims SMJ

Answer 24

• One P can aggregate all claims against a single D (e.g., must be one P vs. one D)
• If not one P vs. one D, can only aggregate if either:
a) One P has joint liability claims against multiple Ds
» Use total value of the claim
b) Multiple Ps seek to enforce a single title or right in which they have a common, undivided interest (rare)
» E.g., several Ps jointly own real estate and sue D to quiet title — undivided interest, so aggregation OK

Question 25

Fed Question SMJ

Answer 25

Federal courts have jx over properly-pleaded claims that arise under federal law
• No diversity or amount in controversy requirements

Question 26

Requirements of Fed Question SMJ

Answer 26

Claim must show a right or interest founded substantially on federal law
• Federal question must appear on the face of the complaint
» FQJ cannot arise based on extraneous allegations or potential defenses
• Analysis — ask if P is enforcing a federal right (e.g., one that arises under federal statute, regulation, Const., etc.)
» If not, no FQJ exists
• Note — beware of fact patterns in which complaint raises a federal law or issue, but P is not enforcing a federal right

Question 27

Exclusive Fed JDX SMJ

Answer 27

Federal courts have exclusive jx over certain types of claims, which must be heard in federal court
• Most common areas of exclusive federal jx:
1) Bankruptcy
2) Patent and copyright
3) Federal antitrust claims
4) Postal matters

Question 28

Supplemental JDX SMJ

Answer 28

Supplemental jurisdiction allows a federal court to hear additional claims that do not meet diversity or FQJ requirements
• Cannot use supplemental jx to get a case into federal court
• Additional claims (e.g., counterclaims and cross-claims) that do not meet diversity or FQJ requirements may come in under supplemental jx

Question 29

Requirements of Supplemental JDX SMJ

Answer 29

Common nucleus of operative fact (CNOF)
• Each additional claim must share CNOF with an existing claim that invoked FQJ or diversity jx
» Satisfied if supplemental claims arise from same transaction or occurrence as underlying claim

Question 30

Discretionary Factors of Supplemental JDX SMJ

Answer 30

Court may refuse to hear appropriate supplemental claim if either:

a) Original jx claims are dismissed early in the proceeding
b) Supplemental claim raises novel or complex state law issue, or
c) Supplemental claim predominates over original jx claims

Question 31

Limitations on Supplemental JDX SMJ

Answer 31

In diversity cases, P cannot use supplemental jx to overcome lack of diversity (does not apply to D)
• However, P can use supplemental jx to overcome lack of diversity for a claim in a federal question case
• P can also use supplemental jx to overcome insufficient amount in controversy

Question 32

Removal

Answer 32

D can remove a case originally filed in state court to federal court
if the federal court would have had SMJ (i.e., diversity or FQJ)

Question 33

Removal Rules

Answer 33

1) D can only remove if case could have been filed in federal court
2) Only D can remove and all Ds must agree to removal
3) D can only remove to federal district embracing state court in which case was originally filed
4) D who filed permissive counterclaim in state court waives right to remove
• Timing — D must remove within 30 days of service of the first
removable document (usually service of process)
• Procedure — D must file notice in state and federal courts
» Notice must be signed, contain grounds for removal,
and copies of all documents served on D in state court
» Must be provided to all adverse parties

Question 34

Diversity Limitations on Removal

Answer 34

D cannot remove if P filed suit in any D’s home state (i.e., no removal if any D is a citizen of the forum state)
• No removal more than one year after case filed in state court

Question 35

Remand of Removal

Answer 35

If removal improper, court can remand to state court
• Improper procedure — P can move to remand within 30 days
• Lack of SMJ — P can move to remand at any time

Question 36

Erie

Answer 36

In diversity cases, federal courts must apply state substantive law, but federal procedural law
• If unclear whether a law is substantive or procedural, use the below analysis to determine if state or federal law applies

Question 37

Erie Analysis

Answer 37

1) Is there a valid federal law (e.g., Const., statute, federal rule) that is on point and directly conflicts with state law?
• If yes, apply the federal law as long as it is valid
2) If no federal law is on point, analyze under these tests:
a) Outcome determinative — would applying or ignoring the state rule affect the outcome of the case?
» If yes, state law is substantive and should be applied
b) Balance of interests — does either federal or state system have a strong interest in applying its rule?
» If one has clearly stronger interest, apply that law
c) Forum shopping avoidance — if federal court ignores state law, would it encourage litigants to flock to federal court?
» If yes, state law is substantive and should be applied

Question 38

Erie Always Substantive

Answer 38

Courts have determined these issues are substantive (i.e., state
law will always govern):
1) Elements of a claim or defense 3) Conflict/choice of law rules
2) Statute of limitations (“SOL”) 4) Rules for tolling SOL

Question 39

Venue

Answer 39

Venue involves the determination of the judicial district(s) in which P may bring suit
• Distinguish from SMJ, which involves whether case can get to federal court; venue concerns which federal court is proper

Question 40

Venue Local Actions

Answer 40

Actions about ownership, possession, or injury to land (including trespass)
• Must be filed in the district where the land lies

Question 41

Venue Transitory Actions

Answer 41

Non-land actions; venue is proper:
a) In any district where all Ds reside
» If all Ds reside in different districts of the same state, P can lay venue in any district in the state
b) In any district where a substantial part of the claim arose

Question 42

Venue Residency

Answer 42

People — residency determined by domicile
Businesses — residents of all districts in which they were subject to PJ when action commenced (much broader standard than PPB)
Aliens — may be sued in any district if PJ will be found
Unincorporated associations — residency determined by location of association itself, not individual members

Question 43

Transfer of Venue

Answer 43

A case may be transferred from one federal district to another in
the interest of justice if the transferee district is one in which the
case could have been filed originally
• I.e., can transfer to any district with proper venue, PJ, and SMJ
• Any party may move to transfer venue
• Can occur even if original venue is proper

Question 44

Transfer when OG Venue Proper

Answer 44

Transfer is discretionary
• Court may order transfer based on convenience of parties and witnesses, and/or in the interest of justice
• Court’s discretion based on:
» Public factors — what law applies, which community should be burdened with jury service, etc.
» Private factors — convenience (e.g., location of evidence, witnesses)

Question 45

Transfer when OG Venue not Proper

Answer 45

Court may transfer in the interest of justice or dismiss the case

Question 46

Choice of Law when Transferred Venue

Answer 46

Transferee court applies the choice of law rules of the original court, regardless of which party sought transfer

Question 47

Forum Non Conveniens

Answer 47

If there is a far more appropriate court in which a case should be heard (e.g., within a separate judicial system, foreign country, etc.), court in which case was filed may decline to exercise its jx

Question 48

Factors of Forum Non Conveniens

Answer 48

Court evaluates based on same public and private factors as
for venue transfer (e.g., convenience, applicable law, etc.)
» Requires strong showing of public and private interests
to dismiss or stay

Question 49

Court Choices for Forum Non Conveniens

Answer 49

1) Stay the proceeding
2) Dismiss the case
» Usually dismissed without prejudice, which allows P to sue in the more appropriate forum
» Dismissal often occurs because transfer to the more appropriate court is impossible (e.g., because it is in a different judicial system or country)
» Dismissal based on forum non conveniens almost never granted if P is a resident in the present forum

Question 50

Service of Process

Answer 50

Service of process is the delivery to D by P of the summons and
complaint, which satisfies notice requirements for PJ

Question 51

Service Requirements

Answer 51

D must be served with:
1) Summons — formal notice of the suit
• Must be signed by court clerk, tell D when/where to appear, and identify the court, parties, P’s attorney
2) Copy of complaint
• Timing — service must be within 120 days of filing of the case
» If not satisfied, case dismissed without prejudice, unless P shows good cause for delay
• Location — D may be served anywhere in forum state
» Out-of-state service OK if allowed by forum state law
• Who may serve — any non-party aged 18 or older

Question 52

Exceptions to Service Requirements

Answer 52

Immunity from service — D cannot be personally served in a state if in state solely as a party or witness in another civil case
• Subsequent papers — subsequent papers filed with court (e.g., answers, discovery requests) do not require formal service
» May be mailed to a party or party agent
• If mailed, recipient gets three extra days to respond

Question 53

Acceptable Methods of Service (Rule 4)

Answer 53

1) Personal service
2) Substituted service — left with third party at D’s “usual abode”
» Third party must be legally competent, reside at abode
3) Service upon D’s authorized agent
» Receipt of service must be within scope of agency
4) Mail (if service waived) (see below) — P sends by mail along
with waiver form, which D must return within 30 days
» If mailed, recipient gets three extra days to respond
5) Any method permitted under state law — allowed if state is:
a) Where the federal court sits, or
b) Where service is effected (i.e., where service occurs)

Question 54

Waiver of Service

Answer 54

P may request that D waives service by mailing D complaint and a formal request to waive service
» If D denies request or fails to respond, P must serve through another acceptable method
» If D agrees to waive service, D extends her time to answer complaint to 60 days from the date waiver request was sent (as opposed to normal 21 days)
• 90 days if D resides outside a U.S. judicial district

Waiving service does not waive D’s right to object to venue or
jx

Question 55

Interlocutory Injunctions

Answer 55

Interlocutory injunctions are court orders requiring a person to do or cease doing a specific action before trial; governed by Rule 65
• Purpose is to maintain status quo until final judgment
• Preliminary injunction vs. TRO — TRO is temporary and can be granted without a hearing for adverse party
• Security — movant must provide security for costs and damages if a party is wrongfully enjoined or restrained

Question 56

Preliminary Injunction

Answer 56

Court may issue only on notice to adverse party, who must receive an opportunity to be heard

Question 57

TRO

Answer 57

• Issued by the court, in its discretion, when necessary to prevent irreparable injury to a party that would result before a preliminary injunction hearing could be held
» Expires after 14 days unless extended by court
• Notice to adverse party — not required if moving party:
1) Shows immediate and irreparable injury will result to her before adverse party can be heard in opposition, and
2) Describes efforts made to give adverse party notice, and why notice should not be required
• Actual notice required — though TRO can be issued without notice, one subject to TRO must have actual notice before they can be held in contempt for violating it

Question 58

Complaint

Answer 58

The initial pleading in a lawsuit, filed by P, which begins an action

Question 59

Requirements of a Complaint

Answer 59

Complaint must contain:

1) Statement of jx
2) Statement of the claim
3) Demand for judgment for relief sought

Question 60

Statement of JDX Complaint

Answer 60

Short and plain statement of grounds upon which the court’s jx depends (i.e., why court has jx)

Question 61

Statement of a claim Complaint

Answer 61

Short and plain statement of P’s claim, showing entitlement to relief
» Notice pleading standard — complaint must give enough detail to allow the adverse party to be on notice and make a reasonable response
• Factual detail required is low; allegations must only be sufficient for court to plausibly infer that D could be liable if allegations are true
» Exceptions — certain claims/issues must be pleaded with particularity, including:
a) Fraud or mistake
b) Special damages
c) Judgments or official documents upon which pleading party will rely

Question 62

Demand for Judgment Complaint

Answer 62

Description of relief sought (e.g., money damages, injunction, etc.)

Question 63

Answer

Answer 63

Response to the complaint, in which D states defenses to each claim asserted and admits or denies each count of P’s complaint
• Governed by Rule 8
• Defenses can be pleaded in the alternative
» E.g., in breach of K claim, D can deny K existed but also answer that if a K did exist, D performed under the K
• Timing — must be filed within 21 days of service of process, or 14 days after a ruling on a Rule 12 motion

Question 64

Requirements of Answer

Answer 64

1) Respond to allegations of complaint — available responses:
a) Admit allegations
b) Deny allegations
» Failure to deny can constitute admission on any issue except damages
c) Lack sufficient information to admit or deny allegations
2) Raise affirmative defenses — certain defenses are waived if not explicitly pleaded in answer; these include:
i. Contributory negligence iv. Fraud
ii. Claim preclusion v. Statute of limitations
iii. Statute of frauds vi. Self-defense

Question 65

12(b) Defenses

Answer 65

1) Lack of SMJ 5) Insufficiency of service of process*
2) Lack of PJ* 6) Failure to state a claim (see card 51)
3) Improper venue* 7) Failure to join a necessary party
4) Insufficiency of process*
• *Waiver — these defenses are waived if not included in D’s Rule
12 motion, provided they were available
• Rule 12(b) defenses may be raised by motion or in the answer

Question 66

Motion for More Definitive Statement

Answer 66

If complaint is so vague or ambiguous that D cannot reasonably prepare a response, D may move for a more definitive statement from P

Question 67

Motion to Strike

Answer 67

D may move to strike from the complaint any redundant, immaterial, impertinent, or scandalous material

Question 68

Motion for Judgment on the Pleadings

Answer 68

Similar to Rule 12(b)(6) motion for failure to state a claim; difference
depends on timing

Question 69

Counterclaim

Answer 69

An offensive claim raised by D against P, which may be pleaded
in D’s answer to the complaint; governed by Rule 13

Two types:
Compulsory
Permissive

Jurisdictional requirement — D must ensure the court has jx
to hear any counterclaim
» Note — compulsory counterclaims will almost always
have supplemental jx

Question 70

Compulsory Counterclaim

Answer 70

Claim by D against P that arises from the same transaction or
occurrence as one of P’s claims
• Must be filed in D’s answer or it will be waived (i.e., D cannot
assert it in a separate action at a later time)

Question 71

Permissive Counterclaim

Answer 71

Claim by D against P that does not arise from the same
transaction or occurrence as any of P’s claims
• May be filed with D’s answer to P’s complaint, or can be
asserted in a separate action filed by D

Question 72

Cross-Claims

Answer 72

Offensive claims asserted by a co-party; governed by Rule 13

• E.g., P sues D1 and D2; D1 may assert a cross-claim against D2

Question 73

Requirements of Cross-Claims

Answer 73

Same transaction or occurrence
• Cross-claims must arise from the same transaction or occurrence as the underlying action
» Never compulsory, unlike counterclaims stemming from the same transaction or occurrence

Question 74

JDX for Cross-Claims

Answer 74

Must have independent basis for SMJ
• Cross-claims will almost always satisfy supplemental jx requirements because they must arise from the same transaction or occurrence

Question 75

Amending Pleadings

Answer 75

Under Rule 15, parties may amend their pleadings once as a matter of course (i.e., parties get one chance to amend)
• Additional amendments may be granted with consent of other parties or court permission (amendment without right)

Question 76

Amendment as a Matter of Course

Answer 76

May occur either:
a) Within 21 days after service, or
b) If the pleading is one which requires a response, within 21 days of service of the responsive pleadings or pre-answer motion (e.g., a Rule 12 motion)
» E.g., if D answers P’s complaint, P has 21 days from service of the answer to amend complaint
• Party has 14 days or time remaining on initial 21-day deadline (whichever is longer) to respond to an amended pleading

Question 77

Amendment Without Right

Answer 77

May amend only with either:
a) Written consent of the adverse party, or
b) Leave of court (i.e., court’s permission)
» Leave of court must be sought through a motion
» Leave will be granted freely when justice requires (lenient standard); court looks to:
i. Delay that will be caused
ii. Potential prejudice to parties
iii. Futility of amendment

Question 78

Relation Back Doctrine

Answer 78

The relation back doctrine applies when a party amends a pleading to add a new claim or D after the statute of limitations has run; governed by Rule 15(c)
• If allowed to relate back, amended pleading will be treated as if it was filed when the original pleading was filed

Question 79

Relation Back Claim Requirements

Answer 79

Amendment will relate back if new claim concerns the same conduct, transaction, or occurrence as the original pleading
» I.e., if new claim is based on the same general set of facts as the original pleading

Question 80

Relation Back Person Requirements

Answer 80

Amendment will relate back if:
1) Amendment concerns the same conduct, transaction, or occurrence as original pleading, and
2) Within 120 days of filing of the amendment:
i. New D knew of or received notice of action, and
ii. New D knew or should have known that, but for a mistake, she would have been named originally
» Applies when P sued the wrong D first, but the right D was aware of the mistake

Question 81

Rule 11

Answer 81

Rule 11 requires the attorney or pro se party to sign all pleadings,
written motions, and other papers

Question 82

Certification Rule 11

Answer 82

Signature acts as certification that, to the best of the signor’s knowledge, after all reasonable inquiry taken:
1) Filing is not for an improper purpose (e.g., harassment, delay)
2) Legal contentions made are warranted by law
» Arguments made for modification of an existing law or establishment of a new law must be non-frivolous
3) Factual contentions and denials have evidentiary support or are likely to have such support upon further investigation

Question 83

Sanctions Rule 11

Answer 83

Court may issue sanctions for violations, either on the court’s own initiative or an opponent party’s motion
• Sanctions may be levied against a party, attorney, or law firm
• Safe harbor — Rule 11 motion for sanctions may not be filed until 21 days following service of the offending document
» Party may withdraw the offending document or remedy the problem
» If not remedied or withdrawn, motion can be filed
• Hearing required — court must give party a chance to be heard before imposing sanctions

Question 84

Permissive Joinder Parties

Answer 84

Rule 20 permits a P in certain circumstances to join other Ps and/or to join several parties as co-Ds
• Joining additional Ps relies on their willingness to join
• Joining additional Ds lies in hands of P asserting the claim

Question 85

Requirements of Permissive Joinder

Answer 85

Permissive joinder is allowed where:
1) Joined parties assert any right to relief arising out of the same transaction or occurrence as P’s claim
» Ds may be joined if right to relief asserted against them arises from same transaction or occurrence
2) There is at least one common question of law or fact in the joined parties’ claims or claims against them
• E.g., after bus accident, all injured passengers and bystanders join as Ps; common issue is driver’s negligence
» Other issues, e.g., damages or contributory negligence, tried individually for each P

Question 86

Compulsory Joinder

Answer 86

Under Rule 19, certain non-parties (absentees) may be forced to
join a case if they are deemed necessary parties

Question 87

Necessary Parties Joinder

Answer 87

Absentees are necessary when either:
a) Without absentee, court cannot grant complete relief
» Consider whether multiple suits might follow if absentee is not made a party
b) Absentee has a legal interest that may be impaired or impeded, or
c) Absentee has an interest that creates a risk of multiple or inconsistent rulings and obligations

Question 88

Requirements of Compulsory Joinder

Answer 88

Absentee can be joined as necessary party if:

1) There is PJ over the absentee, and
2) Joining the absentee will not destroy diversity

Question 89

Indispensable Parties Joinder

Answer 89

If necessary party cannot be joined, must ask whether party is so indispensable that the case should be dismissed; court looks at these factors:

1) Is alternative forum available?
2) What is likelihood of prejudice to parties or others if case goes forward?
3) Can court shape potential relief to avoid prejudice?
4) Would P have an adequate remedy if case dismissed?

Question 90

Impleader

Answer 90

Under Rule 14(a), D can join a non-party who is or may be liable to D for all or part of the claim against the original P
• Allows D to assert claims for indemnity, contribution, etc. against another party for the claim D is defending
• Terminology:
» Newly joined party is third-party D (“TPD”)
» Original D becomes third-party P (“TPP”)
• D’s claim under impleader must be derivative — D/TPP cannot claim that TPD is solely liable to P
• Jurisdiction — court must have PJ over impleaded party; court will generaly have supplemental jx

Question 91

Requirements of Impleader

Answer 91

D has absolute right to implead TPD within 14 days after serving answer by filing third-party complaint against TPD
» After 14 days, D must get permission from court

Question 92

Intervention

Answer 92

Under Rule 24, a non-party absentee may seek to join (i.e., intervene) in an already pending suit, either as a P or D

Question 93

Intervention as a Right

Answer 93

Must be allowed if either:

a) Absentee’s interest will be harmed if not joined and no existing party will adequately represent that interest, or
b) Absentee has an unconditional statutory right

Question 94

Permissive Intervention

Answer 94

Allowed in court’s discretion if either:
a) Absentee has a claim or defense that shares a common question of law with the underlying action,
b) Absentee has a conditional statutory right, or
c) Absentee is a govt. officer or agency and an existing claim or defense relates to officer/agency or a statute, regulation, etc.
• Court must also consider whether intervention will unduly delay or prejudice adjudication of original parties’ rights

Question 95

JDX for Intervention

Answer 95

In diversity cases, interveners must establish independent SMJ
• Supplemental jx will not cover diversity intervention

Question 96

Interpleader

Answer 96

Rule 22 interpleader allows a property holder to initiate a suit to compel multiple claimants to that property to litigate the dispute
• Interpleader is allowed under both federal statute and Rule 22
• Property holder = stakeholder
• Other parties who want the property = claimants

Question 97

Rule 22 Interpleader

Answer 97

Complete diversity required — stakeholder must be diverse from all claimants; amount in controversy must exceed $75k
• Service of process and venue requirements are same as any other federal case

Question 98

Statutory Interpleader

Answer 98

Diversity requirement — one claimant must be diverse from at least one other claimant (i.e., satisfied as long as there are two claimants from different states)
» Amount in controversy must exceed $500
• Nationwide jx — service is proper on anyone in the U.S.
• Venue is proper in any district where any claimant resides

Question 99

Class Actions

Answer 99

Under Rule 23, an individual or small group can represent a larger group (class) sharing a common interest in a lawsuit
• Almost always involves Ps as the class, though Ds can form a class action
• Only representative class members must satisfy requirements re PJ, SMJ, and venue

Question 100

Requirements of Class Actions

Answer 100

1) Numerosity — class size must be so numerous that joinder is impracticable
» No exact threshold as to class size requirement; depends on context of case and claims
2) Commonality — there must exist questions of law or fact common to the entire class
3) Typicality — claims or defenses of the class representatives are typical of those of the class
4) Adequacy — class representatives will fairly and adequately protect interests of the entire class
» E.g., representatives must not have conflicts of interest with class members, class counsel must be competent

Question 101

PJ for Class Actions

Answer 101

Absent class members are not required to meet minimum contacts requirements
• PJ due process requirements satisfied by reasonable and adequate notice to class members, opportunity to opt out (if applicable), and adequate representation

Question 102

SMJ for Class Actions

Answer 102

Federal question jx — same rules as in individual cases
• Diversity jx — in determining amount in controversy and citizenship, court looks only to class representatives
» Diversity requirements satisfied if:
1) Class representatives are diverse from all opposing parties, and
2) Class representatives’ claims exceed $75k

Question 103

Class Action Fairness Act (CAFA)

Answer 103

Separate means of obtaining SMJ in class action; jx exists if:
1) Any class member is diverse of any opposing party, and
2) Aggregated claims of the class exceed $5 million
• Does not apply to:
» Class actions with fewer than 100 class members
» Shareholder claims against corporate management
» Certain state securities law fraud claims

Question 104

Certification of Class Actions

Answer 104

Court must determine at an early practicable time whether to allow the case to proceed as a class action (i.e., certify class)
• If a class is certified, court must:
1) Define the class (i.e., who can be a class member), the class claims, issues, and defenses
2) Appoint class counsel — class counsel must fairly and adequately represent interests of the class as a whole
• Certification can be appealed via interlocutory appeal before final judgment on the merits

Question 105

Judgment from Class Action

Answer 105

Binding as to all absent class members, unless they opt out, if applicable

Question 106

Settlement from Class Action

Answer 106

Court must approve any settlement reached between class representatives and opposing party
» Settlement must be fair, reasonable, and adequate
» Court will seek feedback from absent class members in deciding whether to approve or reject the settlement

Question 107

Discovery

Answer 107

Discovery involves a court-mandated process of acquiring and producing information from parties and non-party witnesses
• Conducted by parties — court helps process move forward, but does not actively participate in exchange of information

Question 108

Scope of Discovery

Answer 108

Anything is potentially discoverable if relevant to a claim or defense

Question 109

Discovery Conferences

Answer 109

Under Rule 16 (in conjunction with Rule 26), party representatives must meet and confer with each other and/or the court at various times throughout the proceeding
• Most of these conferences are for discovery purposes

Question 110

Mandatory Meet & Confer

Answer 110

Parties must meet at least 21 days before the scheduling conference (see below) to:
1) Discuss claims, defenses, and settlement
2) Develop a plan for discovery
» Must present written discovery plan to court within 14 days of the meet and confer

Question 111

Scheduling Conference

Answer 111

Judge may hold a scheduling conference, at or after which she issues scheduling order setting deadlines for filings of pleadings, joinder, amendments, and discovery deadlines

Question 112

Pretrial Conference

Answer 112

Conference before the court; held as needed to move case forward and encourage settlement
• Final pretrial conference — judge may set conference to finalize issues to be resolved at trial and evidence to be presented
» Memorialized in pretrial conference order
» Issues not included in the pretrial conference order are generally excluded at trial

Question 113

Relevant for Discovery

Answer 113

Material is relevant if reasonably calculated to lead to the discovery of admissible evidence
» Broader standard than admissibility for evidence purposes
» I.e., information may be discoverable but not admissible

Question 114

Privileged Material

Answer 114

Undiscoverable

• Work product may be discoverable upon showing of
substantial need for material that is not otherwise available
• Objections to discovery requests based on privilege must be
stated with particularity

Question 115

Types of Privileges

Answer 115

1) Attorney-client
2) Work product
3) Physician-patient
4) Clergy-penitent
5) Marital
6) Journalist-source
7) 5th Amend. privilege against self-incrimination

Question 116

Mandatory Disclosures

Answer 116

Involves information that parties must disclose, irrespective of requests from the opposing party

Question 117

Initial Disclosures

Answer 117

Under Rule 26(a), parties must disclose:
1) Sources of discoverable information — identify all persons, documents, and electronic sources likely to have discoverable information
» I.e., persons and documents a party may use to support her claims or defenses
2) Damages — computation of damages claimed
3) Insurance — any insurance agreement that may be used to satisfy all or part of a judgment
• Timing: within 14 days of parties’ Rule 26(f) meet and confer
» Parties served or joined later must make initial disclosures within 30 days of being served or joined

Question 118

Expert Disclosures

Answer 118

Parties must identify experts who may be used at trial and produce report containing experts’ opinion, data used, qualifications, etc.
» Must be disclosed at least 90 days before trial

Question 119

Pretrial Disclosures

Answer 119

Parties must give detailed information about evidence to be used at trial at least 30 days before trial
» E.g., documents to be used as evidence, identity of witnesses to testify, etc.

Question 120

Interrogatories (Rule 33)

Answer 120

Written questions proposed by one party to an opposing party
• Typically used to ask about identity of documents and people who may have information related to claims and defenses
• Responses or objections required within 30 days

Question 121

Requests for production (“RFPs”) (Rule 34)

Answer 121

Written requests to a party or non-party to make documents or other things within the party’s control available to review, inspect, and/or copy
• Responses or objections required within 30 days

Question 122

Requests for admission (“RFAs”) (Rule 36)

Answer 122

Requests to parties to admit the truth of discoverable information
• If party has admitted information, does not have to be litigated at trial; opposing party can show jury the admission
• Responses due within 30 days — responding party can admit, deny, or state that it lacks knowledge

Question 123

Physical or mental examinations (Rule 35)

Answer 123

Only available through court order where a person’s physical or mental condition is an issue in the case (e.g., tort involving injury)
• Must show that party’s health or condition is in controversy
• If allowed, doctor-patient confidentiality privilege disappears

Question 124

Depositions

Answer 124

An oral proceeding in which an attorney may examine any person under oath regarding the subject matter of the lawsuit; governed by Rule 30
• Testimony is sworn and subject to penalties for perjury
• Parties — notice of deposition will compel attendance; 30-day notice required for production of documents
• Non-parties — may be deposed, but must be subpoenaed
» Subpoena duces tecum used to compel a non-party witness to bring documents to the deposition
• Businesses — may designate a person most qualified to attend the deposition and provide testimony

Question 125

Scope of Depositions

Answer 125

May cover any issue within the scope of discovery
• Objections — deponent’s counsel may object to questions, but deponent still required to answer unless objection is based on privilege
» If objection based on privilege (i.e., answering would reveal privileged information), counsel can instruct deponent not to answer

Question 126

Length of Depositions

Answer 126

Limited to one day for seven hours

• Must seek court approval to take more than 10 depositions or depose the same person twice

Question 127

Work Product Privilege

Answer 127

Arises for material prepared by or for an attorney in anticipation of litigation; can be qualified or absolute
• Qualified privilege: evidentiary (factual) material prepared for litigation purposes
» Protected unless opposing party shows:
1) Substantial need for material, and
2) Material is not available through other means
» E.g., testifying party/witness is unavailable but their attorney has a witness statement
• Absolute privilege: documents containing subjective thoughts of an attorney or party representative concerning the litigation
» E.g., documents containing mental impressions, opinions, conclusions, legal theories
» Privilege cannot be overcome by need for information

Question 128

Protective Order

Answer 128

A court order limiting discovery of material; sought by party seeking to prevent disclosure
• Usually used to prevent disclosure of material that is privileged, highly embarrassing, trade secret, and/or clearly outside the scope of appropriate discovery
• Moving party must certify they have or have attempted to meet and confer with affected parties to resolve dispute
• Standard — court may issue protective order for good cause
» Order can limit, condition, delay, or bar discovery of affected information

Question 129

Motion to Compel

Answer 129

A party may move for an order compelling disclosure or discovery of requested material
• Often arises when discoveree (i.e., party holding information) claims withheld materials are privileged
• Motion must certify that moving party has made a good faith attempt to obtain discovery absent court intervention
• Judge will call hearing to confer with parties regarding dispute and make decision on whether material may be withheld

Question 130

Discovery Sanctions

Answer 130

A court may sanction parties for discovery violations, either on its own or upon motion of a party; whether to grant sanctions and type of sanctions granted are within the court’s discretion

Question 131

Grounds for Discovery Sanctions

Answer 131

Court can sanction any type of failure to comply with discovery obligations or court order
• E.g., failure to attend a deposition; failure to respond to interrogatories, RFAs, and/or RFPs; violation of an order granting a motion to compel; false denial of RFAs; failure to make required disclosures

Question 132

Less Serious Sanctions

Answer 132

Less serious discovery violation (e.g., party makes frivolous objections in RFAs)
» Court may issue order compelling discoveree to respond to discovery requests; can also award costs to party for bringing motion to compel (including attorneys’ fees)

Question 133

More Serious Sanctions

Answer 133

Wholesale violation of discovery rules (e.g., violation of discovery order); court may:
» Strike pleadings; disallow evidence; establish disputed or unanswered facts as true; issue monetary sanctions; dismiss P’s case (very serious, requires bad faith); enter default judgment (very serious, requires bad faith); hold disobedient party in contempt of court
» Motion to compel not required before moving for sanctions

Question 134

Voluntary Dismissal

Answer 134

Under Rule 41, P may voluntarily dismissal her case, either with or
without court approval (i.e., leave of court)

Question 135

Vol Dismissal w/ out leave of Court

Answer 135

Allowed before D serves answer or motion for summary judgment (“MSJ”)
• P voluntarily dismisses by filing written notice of dismissal or stipulation signed by all parties who have appeared
• Dismissal is without prejudice, i.e., P can bring claims again
» Exception — dismissal is with prejudice if P previously filed and dismissed the same claims
» Dismissal can also be with prejudice if it is a condition of parties’ settlement agreement

Question 136

Vol Dismissal w/ Leave of Court

Answer 136

Required if there has been an answer, motion, or prior dismissal
• Court has discretion to grant dismissal on terms and conditions it deems proper
• Dismissal is without prejudice unless court specifies otherwise
• Pending counterclaim — if D has filed a counterclaim, P cannot voluntarily dismiss without D’s consent

Question 137

Default Judgment

Answer 137

Under Rule 55, default judgment against D may be entered when D fails to plead or otherwise defend a properly served complaint

Question 138

Procedures for Default Judgmemt

Answer 138

P files motion for default judgment against D
• Clerk enters default on docket if P shows D failed to respond within 21 days of being served (60 days if service waived)
» Default does not automatically entitle P to recovery; clerk or judge must enter judgment of default
• Default judgment by court clerk — may be entered if:
1) D has not responded at all
2) Claim is for money damages
3) P gives an affidavit of sum owed, and
4) D is not a minor or incompetent
• Default judgment by judge — if elements above not met, judge may still enter default judgment in her discretion
» Judge will hold hearing on provable damages
• Notice — D entitled to 7-day notice only if D has made an appearance in the case

Question 139

Recovery on Default Judgment

Answer 139

Limited to amount demanded in complaint

Question 140

Setting Aside Default Judgment

Answer 140

Court may set aside default judgment for good cause shown within 1 year
• Usually satisfied if D can show some excusable neglect, mistake, or fraud

Question 141

MTD & Motion for Judgment on the Pleadings

Answer 141

Under Rule 12(b)(6) and 12(c), D may move to dismiss or move for
judgment on the pleadings due to P’s failure to bring a plausible claim
• I.e., D arguing that even assuming all allegations in complaint or pleadings are true, P cannot win
• If granted, P will usually be given leave to amend complaint

Question 142

Timing of MTD & M for JP

Answer 142

» Before D files answer = Rule 12(b)(6) motion to dismiss

» After D files answer = Rule 12(c) motion for judgment on the pleadings

Question 143

Materials Reviewed for MTD & M for JP

Answer 143

» Rule 12(b)(6) motion — court reviews sufficiency of P’s complaint alone
» Rule 12(c) motion — court reviews all pleadings

Question 144

MSJ

Answer 144

Under Rule 56, either party may file a motion for summary judgment (“MSJ”) asking the court to enter judgment in the moving party’s favor based on pleadings and evidence submitted
• Must be filed no later than 30 days after close of discovery

Question 145

Burden for Moving Party MSJ

Answer 145

Moving party must show:
1) There is no genuine dispute of material fact, and
2) Moving party is entitled to judgment as a matter of law
• I.e., no reasonable person could find for the nonmoving party
• Motion is based on pleadings and evidence submitted

Question 146

Burden Shifting MSJ

Answer 146

If party moves for summary judgment, burden shifts to nonmoving party to show that a triable issue exists

Question 147

Evidence for MSJ

Answer 147

Court looks at evidence in light most favorable to nonmoving party
• Court can look at whole record of admissible evidence (e.g., affidavits, verified pleadings, discovery materials, etc.)
» Evidence must be admissible to be considered
» Note: this distinguishes MSJ from Rule 12(b) or 12(c) motions, in which court may only look at complaint or all pleadings

Question 148

Partial Summary Judgment

Answer 148

Court can grant summary judgment on only certain claims

Question 149

Right to Trial by Jury

Answer 149

• 7th Amend. provides right to jury trial in all civil actions at law
» No right to trial for suits in equity; only civil actions

Question 150

Demand for Jury

Answer 150

Must be made within 14 days of service of the last pleading raising a triable issue
• Otherwise, right to jury trial is waived

Question 151

Number of Jurors

Answer 151

Minimum of six jurors, maximum of 12
» Six jurors must be unanimous to reach a verdict
» No alternate jurors in federal court

Question 152

Voir Dire

Answer 152

Jury selection process occurring at beginning of trial
• Each party may strike jurors, either for cause, or through
preemptory challenges

Question 153

For Cause Juror Strikes

Answer 153

Used to strike potential juror for cause
» E.g., bias, prejudice, relation to party
» Each side has unlimited for-cause strikes

Question 154

Preemptory Strikes/Challenges

Answer 154

Can be used for any race-neutral and gender-neutral purpose

» Each side has three to use during voir dire

Question 155

Jury Instructions

Answer 155

Parties may file requested jury instructions to be given to the jury during deliberations
• Usually given to jury at close of evidence
• Proposed proposed instructions — court gives parties its proposed jury instructions before final arguments
» Objections — parties must have a reasonable opportunity to object before final arguments and before instructions are delivered to the jury

Question 156

Jury Verdicts

Answer 156

General Verdicts, Special Verdicts, and General Verdict w/ interrogatories

Question 157

General Jury Verdicts

Answer 157

Jury finds for P or D and decides amount of damages or relief due

Question 158

Special Jury Verdicts

Answer 158

Jury asked to make factual findings; court applies the law to those facts
» Court submits questions to jury regarding each ultimate fact and makes legal conclusions based on jury findings
» Parties must object to proposed jury questions before jury deliberates

Question 159

General Jury Verdicts with Interrogatories

Answer 159

Court can require a general verdict and ask jury to answer specific questions concerning ultimate facts
» Purpose is to ensure jury properly considered important issues

Question 160

JMOL

Answer 160

(a.k.a. “directed verdict”)
• Motion brought by either party before case submitted to jury
» D can bring motion upon close of P’s evidence or all evidence; P can file at close of all evidence

Question 161

Standard for JMOL

Answer 161

Court can grant JMOL on an issue if a reasonable jury would not have a sufficient evidentiary basis to disagree as to the result (i.e., reasonable people could not disagree)
» Court views evidence in light most favorable to nonmoving party

Question 162

Renewed JMOL

Answer 162

(a.k.a. “JNOV”)
• After court enters judgment based on jury verdict, losing party can file RJMOL for entry of judgment in his favor
» Must be filed within 28 days after entry of judgment
» Can only be filed if JMOL was originally filed

Question 163

Standard of RJMOL

Answer 163

Court may grant RJMOL if reasonable people could not disagree (i.e., could not disagree verdict was wrong)
» Court views evidence in light most favorable to nonmoving party
• Note: occasionally referred to as “judgment notwithstanding the verdict” or “JNOV”

Question 164

Motion for New Trial

Answer 164

Under Rule 50, either party may file a motion for a new trial if judgment was entered but serious errors occurred at trial
• Must be filed within 28 days after entry of judgment

Question 165

Grounds for New Trial

Answer 165

Unlimited, but potential errors include:
• Prejudicial error — serious error that makes judgment unfair
» E.g., judge misstates law, gives wrong jury instructions
• Prejudicial misconduct — of a party, attorney, juror, etc.
» E.g., jury considers evidence excluded at trial
• Judgment against weight of evidence — jury erred in reaching verdict given evidence before it
• Newly discovered evidence
• Excessive or inadequate damages — court cannot reduce jury award (violates 7th Amend.) but judge can order a new trial or offer remittitur or additur if convinced award is too high or low

Question 166

Remittitur

Answer 166

If jury awards amount that is so high it shocks the conscience, court can order a new trial or offer P a choice of taking lesser figure set by court

Question 167

Additur

Answer 167

If jury awards low figure that shocks the conscience, court can order new trial or give D choice of paying greater damages set by the court

Question 168

Motion to Set Aside Judgment or Order

Answer 168

Under Rule 60, a court may relieve a party from judgment or a
court order if any of the following issues arise:

Mistake, inadvertence, or excusable neglect
New evidence undiscoverable at time of trial
Fraud, misrepresentation, or misconduct by opposing party
Judgment is void
Judgment has been satisfied or discharged
Any other reason that justifies relief

Question 169

New evidence undiscoverable at time of trial

Answer 169

Evidence that could not have been discovered with due diligence in time for a new motion
• Motion may be brought anytime that is reasonable within one year of entry of judgment

Question 170

Appellate Courts

Answer 170

In federal court, litigants appeal from district courts to the U.S. Courts of Appeal
• Appellate court looks at potential errors on questions of law, not questions of fact
• Review is deferential, especially concerning case-management and fact-finding issues

Question 171

Final Judgment Rule

Answer 171

Appeal may only be taken from a final judgment, meaning the trial court has made an ultimate decision on the merits of the entire case
• Without a final judgment or authorized basis for interlocutory appeal, appellate court lacks jx

Question 172

Exceptions to Final Judgment Rule

Answer 172

» Orders involving injunctions — entitled to interlocutory appeal
» Orders involving certification of class actions — may be appealed in discretion of Court of Appeals
» Orders involving debatable questions of controlling law

Question 173

Appeals for multiple claims/parties

Answer 173

Trial court may direct entry of final judgment as to one or more party and/or claim, which is then appealable

Question 174

Timing For Appeals

Answer 174

Must file notice of appeal in trial court within 30 days of entry of final judgment

Question 175

Interlocutory Appeals

Answer 175

Though generally only final orders are appealable, some interim (interlocutory) orders may be appealed before final judgment

Interlocutory orders reviewable as of right:

1) Injunctions — orders concerning an injunction
2) Receivers — orders concerning appointment of receivers
3) Patent — orders where only an accounting is left in the case
4) Property — orders affecting property (e.g., attachment)

Question 176

Interlocutory Appeals Act

Answer 176

Appellate court may hear appeal of non-final order if trial judge certifies order involves a controlling issue of law with substantial ground for difference of opinion

Question 177

Class Action Appeals

Answer 177

Appellate court may review an order granting or denying class certification

Question 178

Collateral Order Exception

Answer 178

Appellate court may hear an interlocutory appeal on an issue if it is:

1) Too distinct from the merits of the case (i.e., collateral)
2) Too important to be denied review, and
3) Would essentially be un-reviewable if parties waited for final judgment (e.g., claim of immunity under 11th Amend.)

Question 179

Extraordinary Writ

Answer 179

Party aggrieved by an unappealable order may seek a writ of mandamus or writ of prohibition to compel or prohibit lower court action; not technically an appeal
• Must show irreparable harm will occur and normal route of appeal is inadequate

Question 180

Claim Preclusion (Res Judicata)

Answer 180

A party that has had an opportunity to litigate a claim cannot re-litigate the claim once final judgment has been rendered
• I.e., parties can only sue on a claim or cause of action once
• Affirmative defense — should be raised in D’s answer

Question 181

Requirements of Claim Preclusion

Answer 181

Same Parties
Same Claims
Final Judgment on Merits

Question 182

Same Parties Claim Preclusion

Answer 182

The second case was brought by the same party against the same party (i.e., same P against same D)

Question 183

Same Claims Claim Preclusion

Answer 183

Same claims in the first and subsequent suit
» Claim refers to the transaction or series of transactions or occurrences giving rise to the action
» I.e., even if not previously raised, claim can be precluded if it is sufficiently related to prior claims

Question 184

Final Judgment on Merits Preclusion

Answer 184

Original claim had final judgment
» Case is final even if it is being appealed
» Judgment is on merits except if based on:
a) Jurisdiction
b) Venue, or
c) Indispensable parties

Question 185

Issue Preclusion (Collateral Estoppel)

Answer 185

Prevents re-litigation of particular issues of fact or law that have been actually litigated and previously determined

Question 186

Requirements of Issue Preclusion

Answer 186

Final judgment on the merits
Same issue
Issue was essential to the judgment
Asserted against actual party to previous case

Question 187

Same Issue Issue Preclusion

Answer 187

Same issue was actually litigated and determined in first case

Question 188

Issue Essential to Judgment Issue Preclusion

Answer 188

i.e., judgment would have been different in first case absent litigation of this issue
» Must be clear how the issue was decided by the original trier of fact
4) Asserted against act

Question 189

Who can assert issue preclusion?

Answer 189

• Mutuality (traditional view) — only parties to prior litigation can assert issue preclusion
• Non-mutuality (modern view) — issue preclusion may be asserted by those who were not parties in prior litigation

Question 190

Defensive Use of Prior Judgment Issue Preclusion

Answer 190

D seeks to prevent P from re-litigating an issue P previously lost in prior suit against different party
• Allowed if party against whom issue preclusion is asserted had a full chance to litigate the issue previously
» E.g., D in second case can preclude P from re-litigating an issue lost to another D in prior case

Question 191

Offensive Use of Prior Judgment Issue Preclusion

Answer 191

P seeks to prevent D from re-litigating issue that D previously lost in prior suit against different party; rarely allowed