FED. CIVIL PROCEDURE

Question 1

Claim Preclusion/Res Judicata

Answer 1

A party (or their privities) will be barred from pursuing a claim if the claim involves the same parties and arose from the same transaction or occurrence as a claim that has already received a final judgment on the merits.

Question 2

Issue Preclusion/Collateral Estoppel

Answer 2

An issue may be barred from relitigation if it has already been litigated in a prior suit, the issue was essential to the judgment in that suit, there was a final judgment on the merits, and the party against whom preclusion is sought had an opportunity and incentive to previously litigate that issue.

Question 3

4 Ways to Establish Subject Matter Jurisdication

Answer 3

Federal question, diversity, supplemental, or removal jurisdiction.

Question 4

Subject Matter Jurisdiction Definition

Answer 4

Subject matter jurisdiction is the ability for a court to hear a case/issue a judgment for a case. It may not be waived, and can be objected to at any point during a trial.

Question 5

Basic Requirements for a Court to Hear a Case

Answer 5

For a court to hear a case, it must have proper subject matter jurisdiction, personal jurisdiction of the ∆, and it must be in a proper venue.

Question 6

Federal Question Jurisdiction

Answer 6

Under 28 USC 1331, federal courts have jurisdiction over all claims arising under federal law.

If a substantial federal question is raised on the face of a plaintiff’s well-pleaded complaint, a federal court will have jurisdiction to hear the case.

The federal question cannot be anticipated to be raised in defense and cannot appear in an answer — must be in the complaint, and must be substantial.

Question 7

Federal Question Jurisdiction over a State Law Claim

Answer 7

A federal court will have SMJ over a state law claim that includes a federal issue if that federal issue is
- Necessarily raised;
- Actually disputed;
- Substantial; and
- Capable of resolution without disrupting the federal and state court balance.

Question 8

Diversity Jurisdiction

Answer 8

A federal court will have subject matter jurisdiction over a claim that arises between citizens of different states with an amount in controversy that exceed $75,000.

Complete diversity is required, meaning that no plaintiff can reside in the same state as any defendant. Citizenship is based on domicile.

Question 9

Citizenship of a Human Being

Answer 9

Human beings are citizens of the state in which they are domiciled. A person’s domicile is where they reside with the intent to remain indefinitely. A person only has one domicile at a time.

Question 10

Citizenship of a Corporation

Answer 10

Corporations are citizens of the state in which they are incorporated or the state in which their principal place of business is.

A corporation’s principal place of business is where their “nerve center” is; where a majority of their business takes place.

Question 11

Citizenship of an Unincorporated Organization

Answer 11

Unincorporated organizations are citizenships of each state in which their members are domiciled, even if that means that they are a citizen of all 50 states.

Question 12

Personal Jurisdiction Definition

Answer 12

Personal jurisdiction is a court’s power to render judgment over a specific party, and arises from the Due Process clause of the 14th Amendment.

The 14th Amendment is satisfied and personal jurisdiction is proper if the defendant resides in the forum state, has consented to jurisdiction in the forum state, has been served (“tagged”) in the forum state, has minimum contacts with the forum state so as not to offend the traditional notions of fair play and substantial justice, or is essentially “at home” in the forum state.

Question 13

Aggregation of Claims

Answer 13

A single plaintiff can bring multiple, UNRELATED claims against a single defendant to reach the amount in controversy requirement for diversity jurisdiction, in the interest of judicial economy.

Question 14

Well Pleaded Complaint Rule

Answer 14

To establish federal question jurisdiction, the federal question must be substantial and included in the face of the plaintiff’s well pleaded complaint.

Cannot be merely anticipated or included in the ∆’s answer.

Question 15

Supplemental Jurisdiction

Answer 15

A claim that does not fall under federal question or diversity jurisdiction may be “piggybacked” onto a claim that does, if that claim arises from the same transaction or occurrence (they share a “common nucleus of operative fact”).

If the sole basis of the underlying claim is diversity, then.a non-diverse defendant may not be “piggybacked” onto the case.

A court can decline to exercise supplemental jurisdiction if it includes a novel or complex issues of state law, or if the state claim would dominate over the federal claim.

Question 16

Home State ∆ Rule

Answer 16

A ∆ cannot remove a claim to federal court if the federal court’s jurisdiction would be based on diversity and the plaintiff filed the suit in the state in which the defendant resides.

Question 17

Where is venue proper?

Answer 17

If all ∆’s reside in the same state, then venue is proper in any district in which one ∆ resides.

If ∆’s reside in different states, then venue is proper in the district in which the harm occurred or claim arose, or where the property subject to the action is situated.

If neither apply, then venue is proper in any district in which at least one ∆ would be subject to personal jurisdiction.

Question 18

3 Reasons to Transfer Venue

Answer 18

1. Convenience, if the suit could’ve been originally filed in a different venue and that venue is more convenient for the parties, witnesses, and evidence.
2. If all parties agree/consent to the transfer.
3. In the interests of justice, if the suit was originally filed in an incorrect venue.

Question 19

Forum Non Conveniens

Answer 19

If the most convenient forum is outside of the United States, the court must dismiss the suit and have the parties file elsewhere (it cannot be transferred).

Question 20

Contents of a Complaint

Answer 20

Complaints must include grounds for subject-matter jurisdiction, a statement of the facts that is sufficient to show that the plaintiff is entitled to relief, and a demand for judgment/prayer for relief.

If a complaint does not include all three, the ∆ can motion to dismiss for failure to state a claim upon which relief can be granted.

Question 21

Amending Pleadings

Answer 21

Pleadings can be amended once as a matter of right without consent from opposing parties or the court.

If the pleadings have already been amended once, then an amendment must have permission from either the opposing parties or the court.

Question 22

Service of Process

Answer 22

Process includes both the complaint and the summons, and must be served within 90 days of filing by a person 18+ who is not a party to the suit.

A ∆ can be served personally, at their abode with someone of a suitable age who resides there, to their registered agent, or mailed with a letter requesting a waiver of in-person service.

Question 23

Difference Between TROs and PIs

Answer 23

Temporary restraining orders can be issued ex parte without notice to the opposing party if necessary, and only last for 14 days.

Preliminary injunctions must give notice to the opposing party and may last longer.

Question 24

Preliminary Injunctions and Temporary Restraining Order Definition

Answer 24

TROs and PIs are equitable relief with the objective of maintaining the status quo until trial.

Question 25

Preliminary Injunctions and Temporary Restraining Order Factors

Answer 25

HELP

Harm — There must be a threat of irreparable harm to the plaintiff.

Evaluation of injuries — Court will balance the risk of irreparable harm to the plaintiff if the injunction is not granted against the injury to the defendant if the injunction is granted.

Likelihood of success on the merits — The plaintiff must be likely to succeed on the merits of their case at trial.

Public policy and payment of securities — The court will consider if granting the injunction is in the public’s best interest. The plaintiff must also pay a security to reimburse the ∆ if they do not succeed at trial.

Question 26

Permissive Joinder of Parties

Answer 26

A party can be joined as long as the parties’ claims or liability arise from the same transaction or occurrence and include shared questions of law or fact.

Question 27

When is a party “necessary” for the purposes of mandatory joinder?

Answer 27

1. If they have an interest that would be impaired if they were excluded from the suit.
2. If complete relief could not be granted without said party.
3. If the current parties would be subject to inconsistent or duplicative liability if the party were not joined.Man

Question 28

Mandatory Joinder

Answer 28

A party must be joined if they are necessary and subject to PJ in the venue and joinder would not destroy diversity jurisdiction (if SMJ is based on diversity).

If a party is not necessary, it is not mandatory that they be joined.

If a party is necessary but the court does not have PJ or joinder would destroy diversity, then the court must dismiss the suit if the party is “indispensable”, taking into account the prejudice to the missing party and whether that party could find relief elsewhere.

Question 29

Class Action Requirements

Answer 29

1. Numerosity— So many plaintiffs that joinder would be impracticable.
2. Commonality — A common question or fact or law among all members of the class.
3. Typicality — Claim is typical for all class members.
4. Representativeness — The representative party will fairly protect the interests of the entire class.

Only minimal diversity required.

Question 30

Motion for Summary Judgment

Answer 30

A party’s motion for summary judgment will be granted if, in viewing in a light most favorable to the nonmoving party, the court determines that there is no genuine issue of material fact, thus entitling the moving party to a judgment as a matter of law.

The moving party has the burden of establishing that there is no genuine issue of material fact, after which the burden shifts to the nonmoving party to provide evidence of an issue of fact.What

Question 31

What can be appealed?

Answer 31

Final orders, orders pertaining to preliminary injunctions, and collateral orders— orders unrelated to the merits of the case but delay of the appeal would deny appellate review.

Question 32

Removal

Answer 32

A ∆ may remove a case from state to federal court if the case could have originally be brought in federal court.

If there are multiple ∆s, they must all consent to removal.

Under the home state defendant rule, a case may not be removed to federal court if federal jurisdiction would be based on diversity and the claim was brought in the state in which the defendant resides.

Must remove within 30 days of filing, and must notify all adverse parties.

Question 33

Motion to Remand

Answer 33

Plaintiff must motion to remand within 3- days after notice of removal, unless the remand is based on a lack of subject-matter jurisdiction, which may be raised at any time.

The burden is then on the ∆ to show that removal was proper.

Question 34

Voluntary Dismissal

Answer 34

A plaintiff may dismiss their claim once as a matter of right if the defendant has not yet filed an answer or motion for summary judgment.

If the defendant has already responded to the suit, then the plaintiff may only dismiss the claim with consent from the defendant(s), as a stipulation, or by permission from the court.

A court will likely grant a voluntary dismissal if no prejudice would result to any party.

Question 35

Pleading Fraud

Answer 35

Under Twombly/FRCP, fraud must be plead with specificity/particularity.

In Georgia, fraud is defined as an intentional misrepresentation of a material fact that results in detrimental reliance and damages.

If the claimant does not establish all of those elements, they have not sufficiently plead with particularly.

Question 36

Timing of a Rule 12 Motion to Dismiss

Answer 36

A Rule 12 MTD must be filed before or contemporaneously with a ∆’s answer, which must be filed within 21 days of service, or 60 days if service is raised.

The filing of a Rule 12 MTD delays the deadline for an answer until 14 days after the court rules on the MTD.

Question 37

Rule 12 MTD

Answer 37

A Rule 12 motion to dismiss argues that, in taking all of the alleged facts as true, the claimant still has failed to state a claim upon which relief can be granted.

The can occur by either —
- Not pleading fraud with specificity;
- Not including all of the elements of a claim;
- Not meeting the plausibility standard under Twombly (not establishing more than a “mere possibility” that the facts occurred)
- Only reciting bare legal conclusions, and no facts.

If a Rule 12 MTD is granted, the claim is generally dismissed with prejudice, unless the court specifies otherwise.

Question 38

Superior Court Jurisdiction

Answer 38

Court of general jurisdiction.

Superior courts and state courts share jurisdiction over most cases in Georgia, including beach of contract actions.

Superior courts have EXCLUSIVE jurisdiction over matters in equity, divorce actions, and cases involving title to land.

Question 39

Jurisdiction over Matters in Equity

Answer 39

Superior courts have EXCLUSIVE jurisdiction over matters in equity.

Matters in equity must be filed in the county of residence of the ∆.

Question 40

Jurisdiction over Divorce Actions

Answer 40

Superior courts have EXCLUSIVE jurisdiction over divorce actions.