Federal Civil Procedure

Question 1

What does a Court need to exercise jurisdiction over a case?

Answer 1

Personal jurisdiction + Subject matter jurisdiction

Question 2

What is subject matter jurisdiciton?

Answer 2

Subject matter jurisdiction is the power of the court to decided a particular type of case. Subject matter jurisdiction cannot be waived.

NOTE: Lack of subject matter jurisdiction can be raised by any party at any time.

Question 3

What is federal question juisdiction?

Answer 3

Federal question jurisdiction is a type of subject-matter jurisdiction that exists when a claim arises under federal law.

NOTE: Well pleaded complaint rule.

Question 4

What is diversity jurisdiction?

Answer 4

Diveristy jurisdiction is a type of subject matter jurisdiction that exists for cases between citizens of different states - or citizen of a state and foreign country - if the amount in controversy exceeds 75,000. Diversity is judged when the complaint is filed.

Note: Probate and domestic relations cases cannot be brought in federal court based on diversity jurisdiction.

Question 5

What diversity is required for statutory interpleader?

Answer 5

In certain cases, such as statutory interpleader, class actions involving more than 5 million, or interstate mass torts, only minimal diversity is required.

Question 6

Aggregation

Answer 6

If there is one plaintiff and one defendant, the plaintiff can aggregate all claims, regardless of whether the claims are related.

If there is one plaintiff and multiple defendants, the plaintiff may not aggregate the claims to reach the amount in controversy.

If there are multiple plaintiffs and one defendant, the plaintiffs cannot aggregate - each plaintiff must be seeking more than 75,000.

Question 7

What is removal?

Answer 7

Removal from state court to federal court

This is only proper if the case could have originally been brought in federal court.

Note: Only defendants can remove, and all defendants must consent w/n 30 days of service. If the claim is based on diversity the claim can only be removed if brought in a state where no defendant is a citizen.

Question 8

What is supplemental jurisdiction?

Answer 8

Supplemental jurisdiction allows a federal court with subject-matter jurisdiction over a case to hear additional claims over which the court would not independently have jurisdiction if all claims constitute the same case or controversy. (Claims constitute the same case or controversy if they arise out of the same common nucleus or operative fact)

Note: It is within the discretion of the court to exercises supplemental jurisdiction

Question 9

Compulsory v. Permissive Counterclaim

Answer 9

A compulsory counterclaim is one that arises out of the same transaction or occurrence as the opposing party’s claim.

A permissive counterclaim does not arise out of the same transaction or occurrence and can only be heard by a federal court in diversity if it independently satisfied diversity jurisdiction.

Question 10

Cross claim

Answer 10

A cross claim is a claim by a co-party. The claim must arise out of the same transaction or occurrence that is the subject of the action or of a counterclaim.

Question 11

Personal jurisdiction

Answer 11

Personal jurisdiction is whether a court has the power to exercise jurisdiction over a defendant. Federal courts use the long arm statute of the state in which they sit to determine if they have personal jurisdiction over an out of state defendant.

A court must always ask two questions: 1) Has the basis for exercising personal jurisdiction over an out of state defendant been authorized by a statute or rule of court

2) If the particular basis for exercising personal jurisdiction permitted by Due Process?

Question 12

Personal jurisdiction and Due Process

Answer 12

Due Process requires minimum contacts between a defendant and the forum state such that it is consistent with the traditional notions of fair play and substantial justice to sue the defendant in the forum.

Note: In assessing minimum contacts, the court looks for purposeful availment such that the defendant has a reasonable expectation of being sued in the forum.

Question 13

Can Personal Jurisdiction be waived?

Answer 13

Yes, unlike SMJ Personal Jurisdiction can be waived. It can be waived in two scenarios

1) Voluntarily litigating on the merits of the claim or
2) The defendant fails to raise the issue of lack of personal jurisdiction in its answer or pre-answer motion to dismiss

Question 14

What is the bulge provision?

Answer 14

The bulge provision allows for service anywhere within 100 miles of the federal courthouse, even if in another state, if impleading a 3rd-party defendant or joining a necessary party.

Question 15

Compulsory joinder

Answer 15

A necessary party is a person whose participation is necessary for a judge adjudication because absent that party, complete relief cannot be accorded to the existing parties; the necessary party has an interest in the litigation that will be impeded if litigation goes forward without that party; or there is a substantial risk of double or inconsistent liability.

Question 16

What is impleader?

Answer 16

Impleader is a device by which the defendant brings into the suit someone who is or may be liable to the defendant for all or part of the plaintiffs claim. This often applies to indemnification contracts.

Note: Citizenship and amount in controversy do not matter. However, the plaintiff cannot make a claim against the 3rd-party defendant unless complete diversity is met.

Question 17

Service

Answer 17

The federal rules authorize service in accordance with state law in addition to the means always permitted by the federal rules. The federal rules always authorize in hand personal delivery, leaving the summons at the defendants dwelling with a person of suitable age and discretion, or delivery to an authorized agent.

Note: Service by mail to the attorney of record is generally insufficient.

Question 18

Erie Doctrine

Answer 18

In a diversity case, a federal court is to apply state substantive law and federal procedural law. Substantive law included teh rules regarding elements of an offense and acceptable defenses, statute of limitations, burdens of proof, and state rules on choice of law.

Note: The role of the jury in federal court is entirely controlled by federal law.

Question 19

What is notice pleading?

Answer 19

Allegations in the complaint must state a plausible case for recovery. The court must disregard allegations that are mere legal conclusions and look at remaining allegations to determine if a plausible case exists.

Question 20

Timing of pleadings?

Answer 20

An answer must ordinarily be served within 21 days of service of the pleading to which it responds. A pleading may be amended as of right once at any time within 21 days of the pleading or 21 days of the response.

Note.: After a party has amendment it will relate back to the day of the original pleading if it concerns the same conduct, transaction, or occurrence as the original pleading.

Question 21

Permissive Joinder

Answer 21

ANy number of plaintiffs or defendants may join if they assert claims arising out of the same transaction or occurrence and there is a common questions of law or fact.

Note: No party can be joined whose presence would destroy complete diversity/

Question 22

What is the Work-product rule?

Answer 22

Preparation for litigation by one party cannot be discovered by the other. This rule protects documents and things prepared in anticipation of litigation for another party. The privilege can be overcome if the opposing party shows a real need for the document and the information cannot be obtained elsewhere.

Question 23

Deposition

Answer 23

An oral deposition is a discovery device in which questions are asked and answered orally and under oath. A party is limited to 10 depositions. Each deposition limited to one day of 7 hours.

Note: A non-party witness must be subpoenaed to be deposed

Question 24

What is an interrogatory?

Answer 24

An interrogatory is a discovery device in which questions are asked and answered in writing and under oath. They can only be used against a party. A party is limited to 25 interrogatories. Responses are due within 30 days.

Question 25

Voluntary dismissal

Answer 25

A plaintiff has a right to a voluntary dismissal once at any time prior to the defendant serving an answer or a motion for summary judgment.

Question 26

Motion for summary judgment

Answer 26

A motion for summary judgment may be granted if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. This means no reasonable juror could find for the nonmoving party. Summary judgment can be granted for the entire case or only for certain parties, claims/defenses, or issues.

Question 27

Transfer

Answer 27

A federal court that lacks jurisdiction must, if in the interest of justice, transfer the action to another federal court in which the action could have been brought at the time it was filed.

Question 28

Where is a corporation a citizen?

Answer 28

A corporation shall be deemed a citizen of every state and foreign state by which it has been incorporated and of the state or foreign state where it has its principal place of business.

Question 29

Remand

Answer 29

A party must make any motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction within 30 days after filing the notice of removal.

Note: If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, then the case must be remanded to the state court from which it came.

Question 30

In personam jurisdiction

Answer 30

In personam jurisdiction is the power that a court has over an individual party.

Bases for In personam:

Voluntary presence

domicile

consent (driving a vehicle in state implied)

Question 31

Special Apperance

Answer 31

A special appearance is a procedure by which a defendant appears before a court for the specific purpose of challenging personal jurisdiction. The defendant is generally not considered to have consented to jurisdiction by making the special appearance as long as personal jurisdiction is contested in the defendants initial pleading.

Note: Under the Federal Rules of Civil Procedure, special appearances have been abolished.

Question 32

Venue

Answer 32

In general, venue in a federal civil action is proper in only one of the following judicial district:

i) A judicial district in which any defendant resides, if all defendants reside in the same state in which the district is location; or
ii) A judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is subject of the action is located.

Note: The fall back alternative is the judicial district in which any defendant is subject to personal jurisdiction with respect to such action.

Question 33

Venue and entities?

Answer 33

If a entity is a defendant regardless of whether incorporated is deemed to reside in any judicial district in which the entity is subject to PJ.

If a entity is a plaintiff, then it is deemed to reside only in the judicial district in which it maintains it principal place of business.

Question 34

Change of venue

Answer 34

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or where all parties consented.

Question 35

TIme computation

Answer 35

Included every day following, including intervening Saturdays, Sundays, and legal holidays.

Question 36

How may service on individuals be made?

Answer 36

i) Personally serving summons and complaint
ii) leaving summons and complaint at defendants usual place of abode with person of suitable age and discretion
iii) Delivering the summons and complaint to an agent appointment by the defendant or otherwise authorized by law to receive service.

Question 37

How must be service on corporations and associations be made?

Answer 37

Delivering summons and complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process.

Question 38

Preliminary injunction

Answer 38

A preliminary injunction is a form of relief issued prior to a full hearing on the merits.

A plaintiff seeking must establish that

• he is likely to succeed on the merits
• he is likely to suffer irreparable harm
• the balance of equities is in his favor; and
• the injunction is in the best interests of the public

Question 39

Elements of a complaint

Answer 39

The complaint is the initial pleading. Must include;

• short and plaint statement of the grounds that establish the courts subject matter jurisdiction
• a short and plain statement of the claim establishing entitlement to relief; and
• a demand for judgment for the relief sought by the pleader

Question 40

Complaint for fraud and mistake?

Answer 40

A party alleging fraud or mistake must state with particularity the circumstances constituting fraud or mistake.

Question 41

Rule 12(b)(6)

Answer 41

Under Rule 12(b)(6), a claim for relied can be dismissed if it either fails to assert a legal theory of recovery that cognizable at law or fails to allege facts sufficient to support a claim.

Two step analysis: (i) Identify and reject legal conclusions unsupported

(ii) Assume the truth of well pleased factual allegations to determine whether the allegations plausibly give rise to an entitlement relief

Question 42

Motion for judgment on the pleadings

Answer 42

After the pleadings are closed, a party may move for judgment on the pleadings. A motion for judgment on the pleadings allows a court to dispose of a case when the material facts are not in dispute and judgment on the merits can be achieve based on the content of the pleadings

NOTE: Timing is important. This is made before discovery while summary judgment is made after discovery.

Question 43

Motion to strike

Answer 43

If a pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material then the court upon motion or upon its own initiative may order that such defense or material be stricken.

Question 44

Affirmative Defenses

Answer 44

The answer must state any avoidance or affirmative defense that the defendant has or that defense is deemed waived.

Some include:

Accord and satisfaction

Arbitration and award

Assumption of risk

Laches; etc

Question 45

Rule 11

Answer 45

Rule 11 establishes the standards that attorneys and individual parties must meet when filing pleadings, motions, or other papers. It also provides sanctions against parties, attorneys, and law firms for violations of the rule.

Type of sanctions:

Nonmonetary directives;

An order to pay a penalty to court; or

Order directing payment to the movant for part or the entirety of reasonable attorney fees

Question 46

Class actions

Answer 46

In a class action, the court authorizes a single person or a small group people to represent the interests of a larger froup.

Requires four requirements:

Numerosity

Commonality

Typicality

Adequacy

Question 47

Class actions under the Class Action Fairness Act of 2005

Answer 47

CAFA makes it easier to satisfy federal subject matter jurisdiction for certain large class entities. Subject matter jurisdiction will be met if:

• Class action involves at least 100 members
• The primary defendants are not states, state officials, or other gov
• The action does not involve securities-related cases
• The amount in controversy exceeds 5 million
• Minimum diversity exists

NOTE: Under CAFA any defendant may remove the case to federal court.

Question 48

How many days before trial must disclosure of expert testimony be made?

Answer 48

90 days

Question 49

Physical and Mental Exams

Answer 49

If the mental or physical condition of a party or a person in the legal custody or control of a party is in controversy, then the court may order such a person to submit to a physical or mental examination by a suitable licensed or certified examiner.

Question 50

Requests for admission

Answer 50

A party may serve upon any other party a written request for the admission of any relevant, non-privileged matters discoverable.

Question 51

Jury size federal court

Answer 51

Minimum of 6 no more than 12

Question 52

Juror misconduct

Answer 52

Misconduct can occur when a juror conceals facts relating to his qualification or gives false testimony during voir dire. To obtain a new trial, a party must not only demonstrate that the juror failed to answer honestly a material question on voir dire, but also show that a proper response would have provided a valid basis for a challenge for cause.

Question 53

Motion for judgment as a matter of law (Directed Verdict)

Answer 53

Once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if the court finds there is insufficient evidence for a jury reasonably to find for that party.

Question 54

Relief from a Judgment or Order

Answer 54

Allows a court yo relieve a party from a final judgment or order for a motion filed

(i) Within a reasonable time, and no later than one year following the entry of the judgment or order for:
a) Mistake, inadvertence, surprise, or excusable neglect;
b) Newly discovered evidence that could not have been earlier discovered with reasonable diligence; or
c) Fraud, misrepresentation or misconduct by an opposing party