Federal Civil Procedure

Question 1

In federal court, the complaint must state:

Answer 1

1) grounds for subject matter jurisdiction;
2) a short and plain statement of the claim showing that the plaintiff is entitled to relief; and
3) a demand for relief sought

Question 2

What details are required in the federal complaint?

Answer 2

Plaintiff must plead sufficient facts to support a plausible claim

Question 3

How does a judge in federal court determine plausibility?

Answer 3

The judge uses her own experience and common sense

Question 4

How can a defendant challenge the complaint?

Answer 4

By making a 12(b)(6) motion to dismiss for failure to state a claim

Question 5

Which types of cases have special pleading requirements?

Answer 5

Fraud, mistake, and special damages

Question 6

What are the special pleading requirements for fraud, mistake, and special damages?

Answer 6

Must be pleaded with particularity or specificity

Question 7

How can a defendant respond to a complaint?

Answer 7

By motion or answer

Question 8

How long does a defendant have to file a response after being served process?

Answer 8

No later than 21 days to avoid default

Question 9

How long does a defendant have to respond if he waived service?

Answer 9

60 days from when the plaintiff mailed the waiver

Question 10

What are motions?

Answer 10

Requests for a court order

Question 11

When is a 12(e) motion for more definite statement used?

Answer 11

When complaint is so vague or ambiguous defendant cannot respond

Question 12

When is a 12(f) motion to strike used?

Answer 12

When a party wants the court to remove redundant or immaterial things from a pleading

Question 13

If not included in the response, these defenses are waived…

Answer 13

1) lack of personal jurisdiction
2) improper venue
3) improper service (problem w/ actual papers)
4) improper service of process

Question 14

When can lack of SMJ be raised?

Answer 14

At any time even on appeal

Question 15

When can the defense of failure to state a claim and failure to join an indispensable party be raised?

Answer 15

These motions can be made as late as at trial

Question 16

How long does a defendant have to serve her answer after her 12b motion has been denied?

Answer 16

14 days after notice of denial

Question 17

In its answer, a defendant may

Answer 17

1) admit some or all allegations;
2) deny some or all allegations; and
3) state she has insufficient knowledge to admit or deny some or all allegations

Question 18

What is the effect of the defendant stating she does not have sufficient knowledge to admit or deny some or all allegations in an answer?

Answer 18

It is treated as a denial, but she cannot do this if the answer to the allegation is in her control

Question 19

What is the effect of failing to deny an allegation?

Answer 19

It is treated as an admission except regarding the amount of damages.

Question 20

When the defendant asserts an affirmative defense, when is the plaintiff required to respond?

Answer 20

The plaintiff need not respond as the allegations in the defendant’s answer are deemed denied.

Question 21

When can the plaintiff amend her complaint as of right?

Answer 21

The plaintiff has the right to amend her complaint ONCE no later than 21 days after the defendant serves her first Rule 12 response

Question 22

When can the defendant amend her answer as of right?

Answer 22

ONCE no later than 21 days after serving her answer

Question 23

Can defendant include waivable defenses in his amendment as of right?

Answer 23

Yes, he has the right to amend his answer to include the “waivable defenses” and affirmative defenses.

Question 24

What must parties do if the time period to amend as of right has expired?

Answer 24

Party must seek leave of court or get written consent from the opposing party.

Question 25

What factors do courts consider when deciding whether to allow a party to amend after the time period to amend as of right has expired?

Answer 25

1) length of delay
2) prejudice to the other party
3) futility of amendment

Question 26

What does relation back mean?

Answer 26

You treat the amended pleading as though it was filed when the original pleading was filed, so it can avoid a statute of limitations problem.

Question 27

When does an amended pleading “relate back”?

Answer 27

If it concerns the same conduct, transaction, or occurrence as the original pleading

Question 28

When does an amended pleading “relate back” as to change a defendant?

Answer 28

1) the amendment concerns the same conduct, transaction, or occurrence as the original;
2) The defendant had such knowledge of the case such that she will be able to avoid prejudice; and
3) The defendant knew or should have known that, but for a mistake, she would have been originally named

Question 29

Is there a right to file a supplemental pleading?

Answer 29

No. You must make a motion that is granted within the discretion of the court.

Question 30

What does venue refer to?

Answer 30

Which federal court to file the case in

Question 31

Where is venue proper?

Answer 31

1) residential venue: any district where all defendants reside; or
2) transactional venue: any district where a substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located

Question 32

Where is venue proper for removal cases?

Answer 32

Venue is proper in the federal district embracing the state court where the action was filed

Question 33

When deciding venue, does the location of the plaintiff’s residence matter?

Answer 33

No

Question 34

Where is venue proper if the defendant resides outside of the US?

Answer 34

Venue is proper in any federal district court

Question 35

Where do Human defendants reside for venue purposes?

Answer 35

In the federal court where they are domiciled

Question 36

Where do businesses reside for venue purposes?

Answer 36

In all districts where they are subject to personal jurisdiction for the case

Question 37

What is transfer of venue?

Answer 37

When the case moves from one trial court in a judicial system to another trial court in the same judicial system

Question 38

Which court is the transferor?

Answer 38

the original court

Question 39

Which court is the transferee?

Answer 39

The court to which the case is sent

Question 40

When might a court transfer a case to an improper venue?

Answer 40

When all parties consent and the court finds cause for the transfer

Question 41

Why might a case be transferred from a proper venue?

Answer 41

Its more convenient for parties and witnesses and in the interests of justice

Question 42

What private factors do the court consider when determining whether to transfer from a proper venue?

Answer 42

convenience - where defendants and evidence are found

Question 43

What public factors do the court consider when determining whether to transfer from a proper venue?

Answer 43

1) what law applies
2) what community should be burdened with jury services
3) desire to keep a local controversy in a local court

Question 44

When a diversity case is filed in a proper venue but the court orders transfer, the transferee court must apply the choice of law rules of the

Answer 44

transferor court

Question 45

What is a forum selection clause?

Answer 45

A provision in which the parties agree that a dispute between them will be litigated in a particular place

Question 46

In a diversity case that has been transferred, why would the transferee court use its own choice of law rules?

Answer 46

If the case was transferred to give effect to a valid forum selection clause

Question 47

Would a federal court enforce a forum selection clause if the forum state would not?

Answer 47

Yes because federal laws govern transfers. A federal court may enforce a forum selection clause even though a state court in that forum state would not.

Question 48

What factors are considered when there is a valid forum selection clause?

Answer 48

Only public interest factors:
1) what law applies
2) what community should be burdened with jury services
3) desire to keep a local controversy in a local court

Question 49

When a diversity case is filed in an improper venue, and the court orders transfer, the transferee court must apply which choice of law rules?

Answer 49

Transferee applies it own choice of law rules

Question 50

When does forum non conveniens apply?

Answer 50

When there is another court that has proper venue but the current court cannot transfer the case to that proper venue because it is in a different judicial system

Question 51

What are the options for a court invoking forum non conveniens?

Answer 51

Dismiss or stay (hold in abeyance) the case

Question 52

Which law applies in a diversity case if there is a relevant and valid federal law that directly conflicts with state law?

Answer 52

Federal law

Question 53

How is the validity of Federal Rules of Civil Procedure determined?

Answer 53

They are presumptively valid if they are arguably procedural

Question 54

If there is no valid and relevant federal law, a federal judge must apply state law if the issue to be decided is

Answer 54

substantive

Question 55

What five issues are clearly substantive?

Answer 55

1) conflict (choice) of law rules
2) Elements of a claim or defense
3) statutes of limitation
4) Rules for tolling statutes of limitations; and
5) The standard for granting a new trial because the jury’s damages award was excessive or inadequate

Question 56

How do federal judges determine whether an issue is substantive?

Answer 56

1) Outcome determinative
2) Balance of interests
3) Avoid Forum Shopping

Question 57

A federal court must have subject matter jurisdiction over every single

Answer 57

claim in a case

Question 58

What are the steps to determining whether there is SMJ over a claim?

Answer 58

1) check for diversity of citizenship and federal question jurisdiction
2) If no diversity of citizenship or federal question jurisdiction, check for supplemental jurisdiction

Question 59

What are the two steps to determining whether there is supplemental jurisdiction?

Answer 59

1) common nucleus test
2) does the limitation on use apply

Question 60

What is the common nucleus test in regards to determining supplemental jurisdiction?

Answer 60

the claim we want to get in federal court must share a “common nucleus of operative fact” with the claim that satisfied federal SMJ

Question 61

When is the common nucleus test always met?

Answer 61

When a claim arises from the same transaction or occurrence as the underlying case

Question 62

What is the limitation on the use of supplemental jurisdiction?

Answer 62

In diversity cases, claims by plaintiffs generally cannot invoke supplemental jurisdiction.

Question 63

What is the one exception to the limitation on the use of supplemental jurisdiction?

Answer 63

When there are multiple plaintiffs in a diversity case and the claim by one of them does not meet the amount in controversy

Question 64

When would a court decline to add a claim with supplemental jurisdiction?

Answer 64

1) If the state claim is complex;
2) If state law issues would predominate the case; or
2) If the claim on which federal SMJ is based is dismissed early in the case

Question 65

How is a new domicile established for purposes of SMJ?

Answer 65

1) physical presence in new state
2) intent to stay for the indefinite future

Question 66

What is the “nerve center”?

Answer 66

The state in which the corporation’s manager direct, coordinate, and control business activities. It is usually the site of the corporate headquarters

Question 67

What is the citizenship for class actions?

Answer 67

The citizenship of the named representatives

Question 68

Can a plaintiff aggregate her claims against a defendant?

Answer 68

Any SINGLE plaintiff may aggregate ALL of her claims against a SINGLE defendant.

Question 69

Can you aggregate joint claims?

Answer 69

For joint claims you use the total value of the claim. The number of parties is irrelevant.

Question 70

How is the amount in controversy determined in equitable relief cases?

Answer 70

1) From the plaintiff’s viewpoint, does the relief requested have a value of more than $75K to the plaintiff; or
2) From the defendant’s viewpoint, will relief requested by plaintiff cost the defendant more than $75K

Question 71

What type of cases are excluded from diversity or alienage jurisdiction?

Answer 71

Divorce, Alimony, Child Custody, Probate

Question 72

What is removal?

Answer 72

transfers a case from a state trial court to a federal trial court

Question 73

How much time does a defendant have to remove a case to federal court?

Answer 73

No later than 30 days after service of the first paper that shows the case is removable. Usually that means no later than 30 days of service of process.

Question 74

Who must join in removal?

Answer 74

All defendants who have been served with process

Question 75

Do defendants have to join removal in the same document?

Answer 75

No, they can file separate notices of removal

Question 76

What are the limitations to removing a case based solely on diversity of citizenship?

Answer 76

1) should not be removed if any Defendant is a citizen of the forum state; and
2) should not be removed more than one year after case was filed in state court

Question 77

How does a defendant remove a case?

Answer 77

1. File “notice of removal” in federal court stating grounds for removal
2. Attach all documents that were served on her in the state action
3. Promptly serve a copy of the “notice of removal” on adverse parties
4. File a copy of the “notice of removal” in state court

Question 78

What is the exception to the one-year removal limitation?

Answer 78

The case becomes removal when an in-state or non-diverse defendant is dismissed from the case

Question 79

If plaintiff wishes to remand case based on reason other than lack of SMJ, how long does she have?

Answer 79

She must move to remand no later than 30 days after the filing of the notice of removal

Question 80

If plaintiff wishes to remand case based on lack of SMJ, how long does she have?

Answer 80

There is no time limit.

Question 81

What two documents does notice consist of in a regular lawsuit?

Answer 81

1) a summons
2) a copy of the complaint

Question 82

What is a summons?

Answer 82

Formal court notice of suit and the timing for response

Question 83

Who can serve process?

Answer 83

Any person who is at least 18 years old and not a party to the action

Question 84

When must process be served?

Answer 84

Within 90 days of filing the complaint

Question 85

What are the ways to serve process?

Answer 85

1) Personal Service
2) Susbstituted Service
3) Service on Agent
4) State Law Methods

Question 86

What is substituted service?

Answer 86

Serving a substitute for the defendant
1) at the defendant’s usual place of abode
2) with someone of suitable age and discretion
3) who resides there

The person does not have to be related to Defendant. This option is available even if personal service is available

Question 87

Which state’s method of service are permitted?

Answer 87

1) The state where the federal court sits and
2) The state where service is made

Question 88

How can a business or organization be served process?

Answer 88

1) delivering to an officer or a managing or general agent
2) Using a state law method

Question 89

How can a minor or incompetent person be served?

Answer 89

Only by a method permitted by the law of state in which service is to be made

Question 90

What must a plaintiff include with the notice and request to waive service?

Answer 90

Must also include a copy of the complaint and two copies of a waiver form with a prepaid means of returning the form

Question 91

How long does a defendant have to waive service of process?

Answer 91

30 days if Defendant is in US
60 Days if Defendant is outside of US

Question 92

What must be true for joinder?

Answer 92

1. Joinder must be allowed by the federal rules
2. There must be SMJ over the case

Question 93

Multiple plaintiffs or defendants may be joined if the claims

Answer 93

1) arise from the same transaction or occurrence; and
2) raise at least one common question of law or fact

Question 94

In regards to an absentee or necessary party,

What does necessary mean?

Answer 94

1) w/o the absentee, the court cannot accord complete relief among the existing parties;
2) The absentee’s interest may be harmed; or
3) The absentee claims an interst that subjects a party to a risk of multiple obligations

Question 95

Joinder of an absentee is feasible if

Answer 95

1) there is PJdx over the absentee; and
2) There will be federal SMJ over the claim by or against the absentee

Question 96

When it is not feasible to join an absentee,

What factors does the court consider when determining whether to proceed without the absentee or dismiss the entire case?

Answer 96

1) Is there an alternative forum available?
2) What is the actual likelihood of harm to the absentee?; and
3) Can the court shape relief to avoid that harm to the absentee?

Question 97

What is an impleader claim?

Answer 97

One where a defending party is bringing in a new party (Third-Party Defendant “TPD”) for indemnity or contribution

Question 98

What is indemnity?

Answer 98

shifts liability completely so the TPD must cover the full claim

Question 99

What is contribution?

Answer 99

Shifts liability pro-rata so the TPD must cover a pro-rata portion of the claim

Question 100

Are impleader claims compulsory or permissive?

Answer 100

Permissive

Question 101

Is there a right to implead?

Answer 101

Yes, within 14 days of serving an answer. After that, court permission is required.

Question 102

What must defendant do to implead a TPD?

Answer 102

1) file a third-party complaint naming the TPD; and
2) have the third-party complaint formally served on the TPD

Question 103

What is intervention?

Answer 103

When a nonparty brings herself into the case

Question 104

When is intervention as of right?

Answer 104

If absentee’s interest may be harmed if she is not joined, and that interest is not adequately represented by current parties

Question 105

When is intervention permissive?

Answer 105

at least one common question of law or fact

Question 106

When does interpleader apply?

Answer 106

If separate actions might result in double liabilty against a stakeholder

Question 107

What is an interpleader suit?

Answer 107

Permits a person/stakeholder to require two or more adverse claimants to the stake to litgate among themselves to determine which, if any, has the valid claim to it.

Question 108

What are the requirements for a class action?

Answer 108

1) Numerosity
2) Commonality
3) Typicality
4) Adequacy
5) Certification

Question 109

In regard to class actions,

What is numerosity?

Answer 109

too many class members for practicable joinder

Question 110

In regard to class actions,

What is commonality?

Answer 110

must be an issue common to all class members, so resolution of that issue will generate answers for everyone

Question 111

In regard to class actions,

What is typicality?

Answer 111

The class rep’s claims are typical of the claims of the class

Question 112

In regard to class actions,

What is adequacy?

Answer 112

The class rep will fairly and adequately represent the class

Question 113

What are the three types of class actions?

Answer 113

1) Prejudice
2) Injunctive or Declaratory Relief
3) Common Question or Damages

Question 114

What must the court do when certifying a class?

Answer 114

1) define the class and the class claims, issues, or defenses; and
2) Appoint class counsel, who must fairly and adequately represent the interests of the class