Federal Civil Procedure

Question 1

Class Actions Requirements

Answer 1

1. So numerous that joinder is impracticable
2. Questions of law or common fact
3. Named parties’ interest typical of class
4. Named parties adequately rep. Interests of absent members
5. Separate actions would risk inconsistent results, impair interest of unmanned parties, injunctive or declaratory relief is appropriate, common questions predominate and class action is superior to alternate methods.

Question 2

Class Action Notice and Jurisdiction

Answer 2

Notice: only required in common question suits. Other times discretionary. Must state nature of action, definition of class, claims, issues, defenses, binding effect of judgment

JX: only named rep of class taken into account. Must exceed 75k req or invoke sup jx if it doesn’t destroy div. jx

Question 3

Waiving Personal Jx

Answer 3

• Pre answer motion to dismiss
• raise the defense in an answer

Whichever comes first

Question 4

Claim Preclusion- Res Juricata

Answer 4

Once a final judgment on the merits has been rendered on a particular cause of action, p barred from trying same coa in a later suit

Question 5

Merger

Answer 5

Occurs when P wins, her cause of action merges into judgment and she cant relitigate

Question 6

Collateral Estoppel- Issue Preclusion

Answer 6

1. Final judgment
2. Issue actually litigated and determined
3. Issue essential to judgment
4. Party to be bound by prior judgment must have been party to prior action/ in privity.

(Independent contractors and companies aren’t in privity!)

Question 7

Renewed Motion for Judgment as a Matter of Law

Answer 7

Filed no later than 29 days after entry. Limited to issues raised in JMOL

Question 8

Judgment as a Matter of Law

Answer 8

Judgment granted for either party if a reasonable jury would not have a legally sufficient basis to find for non moving. Most favorable to non moving.

Question 9

Summary Judgment

Answer 9

No genuine issue of material fact. Must filed any time until 30 days after close of discovery. May be partial. Not appealable.

Question 10

Personal Jurisdiction: Definition

Answer 10

Power of court over D or property

Question 11

Personal Jurisdiction: when fed ct. has it

Answer 11

1. Forum’s law grants PJ (statutory)
2. Forum’s law is constitutional

A fed. Ct borrows pj law of state where it sits

Question 12

Personal Jurisdiction: Statutory: three basis

Answer 12

1. Consent
2. Presence
3. Long Arm Statute

Question 13

Personal Jx: Statutory: Consent

Answer 13

Express: any verbal expression or forum selection clause

Implied: d fails to object to PJ in first response w/in 21 days of service.

Question 14

Personal Jurisdiction: Statutory- Presence

Answer 14

1. D present in forum state and served w/ process. Even transitory presence sufficient.
2. D domiciled in forum state
3. D doing business in the state: such regular, systematic and continuous in state business so as to be at home in the forum state

Question 15

Personal Jurisdiction: Statutory- Long Arm

Answer 15

Perform an act which is specified in a statute in a state from which the lawsuit derives (specific personal jurisdiction) doesn’t matter if d isn’t at home.

Question 16

Personal Jx: Constitutional- Contacts

Answer 16

1. D purposely availed herself of forum state’s laws
2. Do new or should have anticipated her activities made it foreseeable she could be hauled into court there

Fewer contacts ok if contacts are directly related to coa.

Stream of Commerce- places product in stream + other act to show intent to serve state

Question 17

Personal Jx: Constitutional- Relatedness

Answer 17

Specific Jx: Claim related to D’s contact w/ forum

General Jx: unrelated to d’s contact, requires D to be at home

Question 18

Personal Jx: Constitutional- Fairness

Answer 18

• whether forum is so difficult/ inconvenient that D is put at disadvantage
• forum state’s legit interest in providing redress for resident
• p’s interest in obtaining effective relief
• interstate judicial system’s interest in efficiency
• shared interest of states in furthering social policies

Question 19

Right to Jury Trial

Answer 19

1. If legal and equitable claims- legal tried first to Jury and equitable to court
2. Jury tries fact issues

Parties must demand. Withdrawn only w/ consent of all. Failure to demand w/in 14 days after last pleading file= waiver.

Question 20

Venue

Answer 20

Venue is proper in a judicial district where nay defendant resides. If all reside in the same state IF THEY DO NOT ALL RESIDE IN THE SAME STATE
where a sub. Part of the claim arose or where prop is located.

Question 21

Remedy for Improper Venue

Answer 21

Motion to dismiss for IV.

Transfer Venue

Question 22

Transferring Venue if Proper

Answer 22

Court has discretion if

1. All parties consent
2. New venue move convenient or preserve interest of justice

Question 23

Supplemental Jx: Rule

Answer 23

If there’s a primary jx basis for one claim, but not the other, fed court has discretion to assert sup jur w/o fed SMJ. If both claims derive from a common nucleus of operative fact

Discretionary by courts. Consider whether claims are based on state law predominate over fed law claims or when teh claims based on fed law have been dismissed.

Question 24

Supplemental Jx: Plaintiffs- Diversity

Answer 24

If only primary jx basis is diversity, plaintiffs cant use sup but to bring in additional claims against non diverse parties

Can use to bring additional claims against DIVERSE parties even if claims don’t exceed 75k.

Question 25

Supplemental JX: Plaintiffs- Arising Under

Answer 25

Can bring additional claims against non diverse parties if arising under

Question 26

Supplemental JX: Defendants- Diversity

Answer 26

D can use sup jur to bring in non diverse parties even if only primary jx basis is diversity

Question 27

Deposition Testimony

Answer 27

Can be introduced for any purpose if witness is unavailable. Only used by the adverse party

Question 28

Pre Answer Motion to Dismiss

Answer 28

Lack of SMJ or PJ Improper venue Insufficiency of process or service of process Failure to state a claim upon which relief can be granted Failure to join indispensable party

Question 29

Federal Question- Arising Under

Answer 29

Arises on face of P’s well pleaded complaint 1. Created by federal law 2. Claim is created by state law but depends on substantial federal question. No anticipation of defense.

Question 30

Lack of SMJ

Answer 30

Non waive able defense that can be raised for the first time even on appeal

Question 31

Counter Claims

Answer 31

Defendant against P Permissive: not same transaction or occurrence. Court can sever Compulsory: same t/o. Must plead or barred from bringing it later.

Question 32

Cross Claims

Answer 32

D bringing in another D | Arises out of same transaction or occurrence

Question 33

Discovery: types

Answer 33

Initial disclosures, expert testimony, pretrial

Question 34

Discovery: initial disclosures

Answer 34

Made 14 days after conference of parties. W/o waiting for discovery request. Parties MUST provide: Names and contact info of individuals w/ discoverable info. Copies/ descriptions of documents Computation of damages and materials Insurance agreements in

Question 35

Discovery: expert testimony

Answer 35

Disclose identities of experts at trial. A list of cases and opinions for past 4 years. Identity, subject matter, summary of facts/ opinions. 90 days before trial.

Question 36

Discovery: pretrial disclosures

Answer 36

1. Witnesses she’ll call 2. Witnesses she’ll call if need arises 3. Witnesses whose testimony will be by depo + parts of transcripts 4. List of docs/ exhibits At least 30 days before trial. W/in 14 days after disclosure, party can serve objections to use of depositions at trial.

Question 37

Work Product

Answer 37

Material prepared in anticipation of litigation.

Question 38

Removal: procedure

Answer 38

D can remove from state to fed court that geographically embraces state by all parties consenting to filing a notice of removal w/in 30 days of a service of state court from which removal is ascertainable

Question 39

Remand

Answer 39

P can file a motion to remand back to state w/in 30 days of filing. Fed court must remand if there’s no fed jx

Question 40

Removal: Exceptions

Answer 40

If only primary basis is diversity, no removal if 1. Any D citizen where action filed 2. Notice filed more than one year after og state court action filed

Question 41

Interpleader

Answer 41

P requires claimants litigate amount themselves to decide entitlement . Common Fund + Rival Claimants. Traditional: complete diversity and 75k Statutory: $500+ and minimal div.

Question 42

Impleader

Answer 42

D can implead against a third party if third party cab be liable for all or part of d’s liability to P

Question 43

Diversity: limited partners

Answer 43

Citizenship of all partners considered.

Question 44

Diversity JX: Aliens

Answer 44

Pure Aliens- can be sued by non aliens and there is diversity. American Citizen outside US- cant be sued on diversity.

Question 45

Citizenship: Corporations

Answer 45

Everywhere its incorporated and the one state where it has it’s PPB

Question 46

Exclusive & Concurrent JX

Answer 46

State and fed courts have concurrent jx. Except w/ bankruptcy, patent, copyright, antitrust actions where fed cts have exclusive jx

Question 47

Rule 14 Third Party Claims

Answer 47

A d may assert a third party claim against a non party who is or may be liable to it for all or part of the claim against it, but it must be derivative. The third party must be seeking indemnification or contribution, rather than alleging that the d isn’t liable but the new third party is.

Question 48

Parties may be Joined as Defendants Whenever

Answer 48

1. Some claim is made by each p against each d relating to or arising out of the same serious of occurrences or transactions. 2. Common nucleus of operative facts

Question 49

Diversity Removal Time Restrictions

Answer 49

1. Must be removed w/in 30 days of d’s receipt of copy that makes case removal 2. In no event can a case be removed more than one year after it was commenced in state court

Question 50

In Rem Action Notice

Answer 50

Must be notified at least by ordinary mail

Question 51

Default Judgment: D’s Failure to Appear

Answer 51

Support w/ affidavit, clerk can sign and enter judgment for amount and costs against D if: 1. P’s claim against d is sum certain 2. Default entered bc/ d failure to appear 3. Defaulted D not infant/ incompetent 4. Damages amount not greater than in complaint. NO NOTICE REQUIRED