Federal Civ Pro

Question 1

federal SMJ requires either

Answer 1

diversity jurisdiction OR

federal question jurisdiction

Question 2

federal courts can only hear questions presented as

Answer 2

cases or controversys

Question 3

removal requirements - when in time?

Answer 3

when plaintiff files a claim in state court
then defendant may remove to federal court only if
diversity/federal question existed at the date of FILING

Question 4

solution to lack of SMJ when one of several defendants is non-diverse?

Answer 4

dismiss the non-diverse defendant before trial

Question 5

requirements of standing for case or controversy requirement of Article III

Answer 5

(1) injury in fact
(2) fairly traceable to defendants conduct
(3) redressable by a favorable federal court decision

Question 6

under Strawbridge, _____ diversity requirement means:

Answer 6

complete;

every plaintiff party must be diverse from every defendant party

Question 7

Erie doctrine provides that federal courts apply ___ procedural law and ___ substantive law
BUT only where there is a ____

Answer 7

federal procedural law;
state substantive law
BUT only where there is a conflict.

Question 8

policy objective of Erie doctrine

Answer 8

to ensure that the outcome of federal court adjudication is substantially similar to the outcome of similar litigation in state court
and therefore discourage forum shopping

Question 9

are state choice of law statutes substantive or procedural for purposes of Erie?

Answer 9

substantive

Question 10

when a federal procedural rule (ie, FCRP) and a state procedural rule directly conflict

Answer 10

then federal rule prevails

even if it would create forum shopping

Question 11

corporate state citizenship test

Answer 11

(1) any state where incorporated AND

(2) principal place of business as determined by nerve center test

Question 12

non-corporate entities citizenship test

Answer 12

citizenship of every state where its members are domiciled

Question 13

citizenship and suits against insurers under the Direct Action Statute

Answer 13

insurer retains own citizenship PLUS is assigned the citizenship of the insured in question

Question 14

type of case where “minimal diversity” is sufficient

Answer 14

interpleader

when the stakeholder is diverse from at least two claimants, federal courts have SMJ

Question 15

diversity in class action suits

Answer 15

representative plaintiffs must be diverse from all defendants

Question 16

jurisdictional amount rule

Answer 16

plaintiffs complaint in federal court must allege
in good faith
that her damages will exceed $75,000, exclusive of interest and costs
note: attorney fees can be included if state statute or contract provides for them during a suit for breach

Question 17

jurisdictional amount calculation when installment contract at issue

Answer 17

only calculate unpaid amount of installment contract (not forthcoming payments) UNLESS

(1) there is an acceleration clause OR
(2) one party alleges fraud and cancellation of contract

Question 18

standard for determining that damages meet the threshold is

Answer 18

“likely to exceed”
plaintiff is allowed to state specific amount, if allowed by state law OR
federal court can draw reasonable inferences

Question 19

if defendant is trying to establish that damages will exceed $75k, usually in a tort suit where plaintiff cannot state specific damages under La law

Answer 19

defendant must make a plausible allegation that JA is satisfied
no evidence required

if plaintiff tries to deny, then court will resolve by preponderance of the evidence

Question 20

aggregation rules

Answer 20

(1) when one plaintiff and one defendant, allowed for any claims
(2) when one plaintiff and multiple defendants, plaintiff must have JA satisfied with each defendant
(3) multiple plaintiffs vs. one defendant - Ps may aggregate many smaller claims IFF they have a common, undivided interest OR a single title or right is involved in the suit
(4) multiple Ps vs multiple Ds, each P must have $75k in controversy with each D

Question 21

when must federal question be presented

Answer 21

federal question must be present in plaintiff’s well-pleaded complaint

the existence of a definite federal defense does not justify plaintiff’s filing in federal court (ie, bankruptcy)

Question 22

federal question jurisdiction definition

Answer 22

presents a case ARISING UNDER federal statute or the US constitution

Question 23

between P1 and D1, what claims can be joined?

Answer 23

all claims between single plaintiff and single defendant may be joined

Question 24

when can multiple Ps join claims against single D
OR
when can multiple Ds be sued together?

Answer 24

when
(1) claims arise from same transaction or occurrence
AND
(2) a question of law and fact common to all plaintiffs or defendants (whichever is multiple) will arise during action

Question 25

when is party a necessary or required party?

Answer 25

(1) when complete relief cannot be accorded among those who are already parties;
OR
(2) when absent party claims an interest in subject matter and disposition in their absence may leave present parties at risk for double or inconsistent liability

Question 26

can case proceed without joinder of necessary party?

Answer 26

consider

(1) prejudice to absentee and present parties
(2) adequacy of judgment
(3) ability to shape relief to avoid prejudice
(4) availability of alternatives to absent party

Question 27

claim brought by defendant against plaintiff

Answer 27

counterclaim

Question 28

claim brought by defendant against co-defendant

Answer 28

cross-claim

Question 29

claim brought by defendant against non-party alleging that the non-party is responsible for some of all of original plaintiff’s liability

Answer 29

impleader

Question 30

timing of impleader

Answer 30

within 14 days of serving original answer or with leave of court

Question 31

when non-party wants to join the suit (2 types)

Answer 31

intervention

intervenor of right: when person claims an interest relating to the property or transaction subject to federal action, and proceeding without her would impede her ability to protect that interest

permissive intervenor: same as above but interests are adequately represented by present parties OR when common question of law or fact exists between existing parties and intervenor’s claim

Question 32

when someone holds property and multiple people want it, the property holder files

Answer 32

interpleader

stakeholder deposits property with court, and claimants are haled in as co-defendants

statutory interpleader requires minimal diversity & $500
rule interpleader requires complete diversity & $75k

Question 33

class action requirements

Answer 33

(1) numerosity AND
(2) common questions AND
(3) typicality of claims of representatives AND
(4) fair and adequate representation of class by representatives

AND one of the following

(1) risk of inconsistent results OR
(2) injunctive or declaratory relief appropriate OR
(3) common questions predominate

Question 34

diversity in class actions

Answer 34

all representatives must be diverse from all defendants

Question 35

jurisdictional amounts in class actions

Answer 35

when one class member has a claim exceeding $75k, all class members may proceed in federal court

Question 36

supplemental jurisdiction basic standard

Answer 36

additional state law claims that arise from a
“common nucleus of operative fact”
may be joined to original claim giving federal court SMJ

Question 37

federal court may decline to exercise supplemental jurisdiction when (4):

Answer 37

(1) when supplemental claim presents a novel or complex issue of state law
(2) when claim substantially predominates over the claims over which the federal court has original SMJ
(3) when court has dismissed all claims providing original SMJ
(4) in exceptional circumstances

Question 38

supplemental jurisdiction is preferred when original jurisdiction is

Answer 38

federal question.

if the original jurisdiction is conferred by a diversity claim, then lack of complete diversity in supplemental claims will bar their joinder (ie, in diversity, all claims must meet 1332 diversity requirements), but lack of JA is fine

Question 39

supplemental jurisdiction is always available for (5):

Answer 39

(1) compulsory counterclaims (ie, claim against original P arising out of same transaction or occurrence as original claim)
(2) crossclaims (ie, claims between original Ds arising out of same transaction or occurrence as original claim)
(3) impleader by defendant (ie, original D’s claim against non-party claiming that 3rd party is liable to D for some or all of P’s claim)
(4) claim by impleaded 3rd party defendant against original plaintiff (ie, claim by 3rd party D vs P arising out of same transaction or occurrence as original claim)
(5) defendant-intervenor by right’s claim against plaintiff (claim by defendant-interest-aligned intervenor vs P whose claim arises out of same transaction or occurrence as original claim)

Question 40

supplemental jurisdiction not available when original SMJ is based on diversity jurisdiction for these (2) claims

Answer 40

(1) plaintiff-intervenors of right when their claim against defendant lacks absolute diversity or JA
AND
(2) original plaintiff’s claim against a 3rd party impleaded defendant, if that claim would lack original 1332 SMJ

Question 41

removal process

Answer 41

(1) defendant must file timely notice of removal in federal district court
(2) within 30 days of service of the state suit (ie, service of petition and citation)
(3) if suit becomes removable after original filing, then D must file notice of removal within 30 days of receiving paper from which it is ascertainable that the suit is now removable
(4) if there are multiple Ds, all Ds must join together to file notice of removal and either sign notice of removal OR provide written consent therefor
(5) Ds must provide short and plain statement of reason for removability of suit - ie, why fed court has SMJ
(6) Ds sign the notice and attach a copy of all state court processes, pleadings, and orders
(7) Ds file the notice and attachments in federal court and serve on plaintiff
(8) Ds take notice and file documents in state court

note: D only has 1 year from original date of FILING to remove suit, unless P concealed/deceived D about removability (amt in controversy) for more than that time
(9) P then has 30 days to file motion to remand if he wishes to object to removal

Question 42

Caterpillar rule:

when a non-diverse party is present in removed federal suit, exception barring remand when

Answer 42

(1) a complete diversity SMJ defect existed at date of filing but was cured before the beginning of trial
OR
(2) if the plaintiff fraudulently joined a non-diverse party to defeat removal. if diverse D removes anyway, federal court may allow case to remain in federal court if there is no reasonable possibility for P’s recovery against non-diverse D

Question 43

when D in diversity suit is a citizen of forum state, then during removal

Answer 43

removal is defeated even if complete diversity exists between parties

Question 44

evidence of plaintiff’s bad faith in defeating removal

Answer 44

(1) failure to describe seriousness of injuries in state complaint
(2) intentional failure to serve defendant until last possible day
(3) providing vague answer to interrogatories about injuries or damages
(4) failure to supply records revealing severity of injuries until after 1-year deadline
(5) requesting numerous extensions of time for discovery

Question 45

personal jurisdiction definition

Answer 45

ability of the court to exercise power over a particular defendant or item of property

Question 46

general vs. specific personal jurisdiction

Answer 46

specific jurisdiction encompasses suits that arise out of or relate to the defendant’s contacts with the forum

general exists for suits that do not arise out of or relate to the defendants minimum contacts with the forum – ie, all-purpose jurisdiction

Question 47

factors for minimum contacts for specific jurisdiction (3)

Answer 47

(1) purposeful availment
note: stream of commerce PJ requires placing object in stream of commerce PLUS some other intent factor, like marketing, special help line, exclusive vendor, etc

(2) foreseeability: knew or reasonable should have anticipated that her activities in the form made it foreseeable that she may be haled into court there

AND

(3) fair play and substantial justice

Question 48

standard for general jurisdiction

Answer 48

defendant’s contacts with the forum state are so consistent and pervasive as to render the defendant essentially at home in the forum state

Question 49

fair play and substantial justice specific jurisdiction requirements

Answer 49

(1) degree of burden - is forum so gravely difficult and inconvenient that it puts defendant at severe disadvantage?
(2) plaintiff’s interest in obtaining convenient and effective relief
(3) interest of X state forum in exercising jurisdiction over plaintiff’s claim
(4) interstate efficiency, considering the location of witnesses and evidence
(5) advancement of social policy considering the availability of alternate forums

Question 50

interactive website jurisdiction (Zippo test)

Answer 50

operating website may constitute purposeful availment when

(1) nonresident defendant operates an interactive website that solicits customers to place a commercial order and transacts in goods and services in the forum location where customers reside –> PJ exists
(2) passive website simply providing information to any browsing user –> no PJ

factors to analyze = interactivity and quality of commercial activity
limiting factors =
website must target louisiana customers or
focus on the louisiana market through targeted advertising

Question 51

venue

Answer 51

(1) where defendant resides if one D // if all Ds are citizens of same state, then any fed district in that state where one D resides
OR
(2) where substantial part of events or omissions giving rise to the claim occurred
OR
(3) where a substantial part of property that is the subject of the action is situated
OR if none of the above (ie, international event)
(4) any district where any defendant is subject to PJ
OR
(5) by consent of defendants

Question 52

if improper venue, D should

Answer 52

motion to transfer to proper district court
OR
motion to dismiss, plaintiff may refile in appropriate venue: note, P then subject to SOL running

Question 53

if D wishes to transfer to another proper venue from P’s choice of proper venue

Answer 53

motion to transfer, court should weigh factors of

(1) convenience of witnesses and
(2) interest of justice

Question 54

service requirements

Answer 54

Ds must be served within 90 days of filing complaint

must be served by person over 18 and no a party

if service received at place of abode, must be received by person who lives there and is of suitable age and discretion

Question 55

waiver of service procedure

Answer 55

(1) plaintiff sends by first class mail to defendant:
(a) copy of petition
(b) request for waiver of service
(c) two copies of waiver
(d) prepaid means of returning waiver to plaintiff
(2) defendant has 30 days from mailing by plaintiff to return
(3) if D waives service, then he has 60 days from when P sent waiver to file answer
(4) P should file returned waiver in court as proof of substitute service

Question 56

if D refuses to waive service, then

Answer 56

(1) must file answer in 21 days
(2) must pay costs of private process server
(3) pay reasonable attorneys fee to cover motion for costs
(4) pay court costs for that motion

Question 57

jury demand

Answer 57

plaintiff may make in complaint
defendant may make in answer
if not until after answer, then P has 14 days from SERVICE of answer to request.

Question 58

timing of pre-answer motions

Answer 58

lack of SMJ at any time
lack/insufficiency of PJ, venue, process, or service of process – must be raised in answer or waived
12b6 or failure to join necessary party - raise any time before or during trial.

Question 59

rule 11 sanctions grounds

Answer 59

(1) pleading filed for improper purpose such as harassment or delay
(2) claims not warranted by existing law or non-frivolous argument for extension or reversal
OR
(3) evidentiary support for claim does not exist nor is likely to exist after discovery

Question 60

origiinal jurisdiction encompassess

Answer 60

1331 & 1332 & other federal statutes granting original jurisdiction

Question 61

under all federal jurisdictional theories, Section 1367 supplemental subject matter jurisdiction requires the original claim and the supplemental claim to

Answer 61

The claim must share a common nucleus of operative facts

Question 62

In federal court, for the exercise of personal jurisdiction over an out-of-state defendant to be proper:

Answer 62

The exercise must be authorized by the state’s long arm statute, and the exercise of personal jurisdiction must be constitutional.

Question 63

How can the Eleventh Amendment (state immunity from suit in federal court) be abrogated?

Answer 63

Congress can use only the Fourteenth Amendment to impose statutory liability.

Question 64

two requirements for federal court abstention under the Pullman doctrine are

Answer 64

a federal constitutional question involved,
and
there must be an unclear issue of state law, that, if resolved, would resolve the federal constitutional question.

Question 65

six types of pleadings permitted by the FCRP are

Answer 65

complaint,
answer,
reply to counterclaim,
answer to cross-claim (if cross-claim is filed),
third party complaint, and
third party answer (if third party complaint is served).

Question 66

when requesting rule 60 relief from a judgment,

Answer 66

any grounds are allowable

Question 67

amending a pleading

Answer 67

one amendment allowed within 21 days as a matter of course. thereafter, by leave of court.

court shall grant leave as long as there is no prejudice to other parties.

Question 68

relation back rule in amending pleading

Answer 68

adding a new claim arising from the same conduct, transaction, or occurrence as that complained of in the original pleading is allowed because it relates back to the original pleading

adding a new party or changing the party follows the same rules

Question 69

12b6 motion shall be granted if

Answer 69

(1) claim not cognizable as a matter of law OR

(2) failure to allege sufficient facts to raise a plausible claim

Question 70

initial disclosure requires

Answer 70

(1) name address and phone number of individuals likely to have discoverable information, and the subjects of that information unless that use would be solely for impeachment
(2) copy or description of all documents and things the party has in its possession, custody, or control
(3) insurance agreement if its policy would be use to satisfy a judgment in the case
(4) computation of damages claimed by the disclosing party

Question 71

is there a continuing duty to disclose?

Answer 71

yes if the original disclosure was incomplete or incorrect

Question 72

timing of initial disclosure

Answer 72

made at or within 14 days of the Rule 26 discovery conference

Question 73

pretrial disclosoures

Answer 73

30 days before trial:
must disclose witnesses who maybe called
witness testimony to be presented via deposition
documents or exhibits to be used at trial

Question 74

expert testimony disclosure

Answer 74

must be disclosed 90 days before trial
expert must be available for deposition
report must be provided which contains all opinions the witness will express and the bases and reasons for them