Federal Civil Procedure

Question 1

What are the four types of abstention

Answer 1

Pullman (resolution of a state law issue would eliminate need for federal resolution); Burford (avoid involvement in complex state regulatory scheme; Younger (ongoing state prosecution); Colorado River

Question 2

What are the exceptions to complete diversity

Answer 2

(1) interpleader - only need two claimants from different state; (2) class actions greater than $5,000,000 with 100 or more members

Question 3

Where is a partnership domiciled

Answer 3

A partnership is a citizen of each state in which each of tis members is domiciled, including limited partners.

Question 4

When is diversity jurisdiction determined

Answer 4

(1) commencement of the suit or (2) at the time of removal

Question 5

How can the AIC requirement be met

Answer 5

(1) aggregation of a single plaintiffs claims against a single defendant; (2) one plaintiff meets the requirement and the rest can use them as an anchor; (3) aggregation of claims against jointly liable defendants

Question 6

When can permissive joinder occur in a DJ case

Answer 6

When the joining party will not violate diversity of citizenship, and the court will have supp. jx if there is a common nucleus. This does not extend to joined defendants.

Question 7

Must permissive counterclaims satisfy diversity?

Answer 7

Yes, permissive counterclaims are not subject to supplemental jurisdiction and must satisfy AIC and complete diversity

Question 8

When can a defendant not remove a case

Answer 8

If removal is based solely on diversity jurisdiction and the defendant is a citizen of the state in which the action was filed.

Question 9

Where is a notice of removal filed

Answer 9

In the district court for the district and division in which the state action is pending.

Question 10

Who must agree to removal

Answer 10

FQJ: only those defendants against whom the federal claim is asserted. DVJ: all defendants must consent and removal must be filed within 1 year CAFA: any defendant may remove without consent of the others

Question 11

When must a party object to the use of depositions and disclosed exhibits /documents

Answer 11

14 days after disclosure, otherwise it will be waived but for good cause

Question 12

When must a party file a demand for a jury trial after removal

Answer 12

14 days (either after filing or service)

Question 13

Where is venue proper for a nonresident

Answer 13

A defendant who is not a resident of the United States may be sued in any judicial district, but the joinder of such a defendant is disregarded with determining proper venue with respect to other defendants.

Question 13

What is the bulge provision

Answer 13

The bulge provision grants a federal court PJ over a party who is served in the US and not more than 100 miles from where the summons was issued.

Question 14

Who does the bulge provision apply to

Answer 14

A third party defendant who is joined under Rule 14 (impleader) and a required party who is joined under Rule 19.

Question 14

Where is venue proper against a noncitizen

Answer 14

Where they are domciled/reside

Question 15

How long does a defendant have to file an answer

Answer 15

21 days after service of the complaint

Question 16

What is the requirement for specific PJ

Answer 16

When a cause of action arises out of or closely relates to a defendant’s contact with the forum state, jurisdiction may be warranted over that action even if that contact is the defendan’t only contact with the forum state.

Question 17

Does a defendant’s website subject it to PJ

Answer 17

Generally no, having a website does not subject a defendant to suit everywhere that the sit can be viewed.

Question 18

What constitutional amendments give rise to implied causes of action

Answer 18

Fifth Amendment claims for sex based employment discrimination, Fourth Amendment claims for unlawful search and seizure, Eighth Amendment claims for cruel and unusual punishment for failure to provide medical treatment.

Question 19

What are the requirements for a protective order

Answer 19

(1) good cause: protective order will protect against annoyance, embarrassment, oppression, undue burden, or undue expression; (2) certification: movant conferred or attempted to confer in good faith with party seeking discovery to resolve dispute without court action

Question 20

When must a party raise improper venue

Answer 20

Either in their pre-answer motion or answer, otherwise it is waived

Question 21

What motions must be filed within 28 days after entry of final judgment

Answer 21

New trial, alter/amend judgment, JML, motion for remittitur

Question 22

When must a motion for attorney’s fees be filed

Answer 22

14 days

Question 23

What are the requirements for rule interpleader

Answer 23

(1) the action involve a federal question or (2) the amount in controversy exceed $75,000 and complete diversity exist between the stakeholder and the claimants

Question 24

What are the requirements for statutory interpleader

Answer 24

AIC of at least $500 and minimal diversity between the claimants

Question 25

What is the general cap on the ratio of punitive and compensatory damages

Answer 25

9 to 1

Question 26

When can an appeal be made prematurely

Answer 26

Injunction, Certification by district court, Class action certification, Appointment of Receiver, Admiralty, Collateral order doctrine, Bankruptcy, Mandamus, Patent infringement

Question 27

When can a court clerk enter a default judgment

Answer 27

A clerk can only enter a default judgment when ALL of the following circumstances are met: The claim is for a sum certain; request for default includes an affidavit establishing the amount due; defaulting party failed to appear; defaulting party is not legally incompetent or a minor

Question 28

How long are most final judgments stayed for?

Answer 28

30 days, except for in the cases of an injunction, receivership, or directing an accounting in a patent infringement action

Question 29

Does a defendant have to deny an allegation relating to damages?

Answer 29

No, a failure to deny an allegation relating to the amount of damages does not deem that allegation admitted.

Question 30

What is the numerical limit on interrogatories

Answer 30

25

Question 31

When must a party respond to interrogatories

Answer 31

Within 30 days of service

Question 32

Who can an interrogatory be served on

Answer 32

A party. Interrogatories cannot be served on non parties.

Question 33

When must a party seek leave to serve a deposition

Answer 33

(1) The party has exceeded their 10 depo limit; (2) depo is sought before the parties initial planning conference UNLESS the deposing party certifies that the deponent is expected to become unavailable; (3) deponent was already deposed

Question 34

What can a court do if a jury’s verdict is not unanimous after polling

Answer 34

(1) order a new trial or (2) send them back to deliberate further

Question 35

When is it appropriate for a district court to correct a clerical mistake

Answer 35

Before appeal docketed, either on its own initiative or by motion

Question 36

What is the time limit for seeking extraordinary relief

Answer 36

1 year

Question 37

What laws regulate service of process

Answer 37

The rules of the state where the court sits; the rules of the state where service is made; personal delivery; delivery to the defendant’s dwelling and with a resident of suitable age and discretion

Question 38

When can a party amend their complaint beyond the SoL

Answer 38

(1) Asserts a new claim arising from same transaction/occurrence or (2) changes party: concerns same transaction/occurrence and new party receives notice of suit within 90 days of original and new party knew/should have known they would be sued

Question 39

When can a plaintiff assert a third party claim against an impleaded third party defendant

Answer 39

When the claim (1) arises out of the same transaction or occurrence that is the subject matter of the plaintiff’s claim against the defendant in original complaint and (2) satisfies original SMJ

Question 40

When suing a federal employee or officer in their official capacity, where is venue proper?

Answer 40

Where the defendant resides, where a substantial amount of the events took place/substantial amount of the property is located, where the plaintiff resides if no real property is involved.

Question 41

How does a court establish PJ in a statutory interpleader action

Answer 41

The court has PJ over any claimant that is served with process anywhere in the US

Question 42

What extra step must a party take to fulfill the requirements for statutory interpleader

Answer 42

They must deposit the property at issue with the court or post a bond in an amount determined by the court

Question 43

When can a party commence discovery procedures

Answer 43

After the initial planning conference

Question 44

When can a party dismiss a counterclaim, crossclaim or third-party claim without court order?

Answer 44

When (1) all parties who have appeared have stipulated to the dismissal or (2) claimant files notice of dismissal before responsive pleading served or evidence introduced at hearing or trial

Question 45

When must an appeal be filed

Answer 45

30 days after the entry of final judgment

Question 46

When is notice required for a class action

Answer 46

When common questions predominate over individual questions and class action is the best method to resolve the dispute. Notice is optional for (1) final equitable relief or (2) prejudicial risk; separate actions create risk of inconsistent decisions

Question 47

When can a court exercise PJ without meeting the minimum contacts test

Answer 47

(1) plaintiff asserts a federal law claim (2) defendant is not subject to PJ in any state court and (3) defendant has minimum contacts with the US as a whole

Question 48

When are a nontestifying expert’s materials discoverable

Answer 48

(1) relate to court-ordered physical/mental examination or (2) exceptional circumstances make it impracticable to obtain information through other means

Question 49

What can a party discover from a testifying expert

Answer 49

(1) facts known or opinions held discoverable through depo (2) drafts of expert reports and disclosures (3) communications between attorney and expert NOT discoverable unless (a) relate to expert’s comp or (b) relied on in forming opinion

Question 50

What are required pretrial disclosures

Answer 50

(1) testifying witnesses (2) depo testimony to be used at trial (3) documents/exhibits to be used

Question 51

When must pretrial disclosures be made

Answer 51

30 days before trial or at the order of the court

Question 52

When must expert’s report and identity be disclosed

Answer 52

90 days before trial or 30 days after disclosure to rebut evidence

Question 53

When is an answer due after an amended complaint is served

Answer 53

14 days after service or 21 days after original pleading, whichever is later

Question 54

When can plaintiffs aggregate their claims to meet AIC

Answer 54

when they seek to enforce a single title or right to a common or undivided interest

Question 55

What must be included in a request to waive service

Answer 55

Complaint, two copies of the form to waive.

Question 56

PJ over a foreign defendant

Answer 56

Substantial, continuous, contacts with the forum state