Federal Jurisdiction/Civil Procedure

Question 1

Federal Court needs what to have proper jurisdiction?

Answer 1

Personal Jurisdiction, SMJ, Venue

Question 2

Federal Jurisdiction: PJ what’s needed?

Answer 2

Must have a statutory basis and a constitutional basis

Question 3

General Jurisdiction vs. Specific

Answer 3

General =Juris not relating to the events giving rise to the claim

Specific = Valid juries must relate to the events giving rise to the claim

Question 4

What are the constitutional basis for PJ?

Answer 4

• Minimum Contacts: “such minimum contacts with the forum such that the exercise of juris does not offend the traditional notions of fair play and substantial justice”
• Contacts: 1) describe it —> do the contacts show a) purposeful availment (purposeful, voluntary act towards forum) and 2) foreseeability (could D foresee getting sued in forum)
• Fairness and Resolution: relatedness (claim arise from D’s contact with the forum), convenience and state interest

Question 5

How do we establish SMJ?

Answer 5

1) Diversity – P and D are completely diverse (diff citizenships) >75,000
- Note – if plaintiff wins less than 75,000 may have to pay D’s court costs NOT attorney’s fees

2) FQ: Complaint must show a right or interest founded substantially on a federal law

Question 6

Citizenship requirements for SMJ

Answer 6

Domicile – two factors 1) presence in the state and 2) intent to make it permanent home, e.g., paying in state tuition, registering to vote etc.

Corporation – two domiciles – state incorporated in and wherever principal place of business

Unincorporated business/partnerships, LLC – citizenship of all members

Decedents, minors, incompetents – use their citizenship not their representative

Question 7

Amt in Controversy for SMJ: Can we aggregate claims?

Answer 7

Yes, we can use Aggregation of claims to create amount in controversy

Must have only One P and one D – can aggregate all claims no limit – claims can be unrelated

If joint tortfeasors can use the total value of claim –

Equitable relief use either P or D’s point of view, e.g., homeowner’s blocked view causing her decrease in property value or defendant’s cost to comply would be more than 75k

Question 8

Even if diversity is established, federal courts will not hear what cases

Answer 8

Issuance of divorce, alimony or child custody, or probate an estate cases

Question 9

Well Pleaded Complaint Rule

Answer 9

Applies in FQ cases. is it not enough that some federal issue is raised by the complaint. The claim itself must arise under federal law.

Is P enforcing a federal right?

• if yes, FQ can be used
• if no, FQ cannot be used

Question 10

Once in federal court, if there are additional claims in the case, SMJ must exist for each of those claims. What happens if diversity and FQ cannot be established on those additional claims.

Answer 10

Try supplemental jurisdiction.

Cannot be used my itself to get into federal court, MUST have a claim already there

TEST – common nucleus of operative fact – always met by claims that arise from the same transaction or occurrence T/O

Question 11

What are the limitations with supplemental jurisdiction?

Answer 11

Limitations on Plaintiff – in a DIVERSITY CASE – P cannot use supplemental jurisdiction to overcome a lack of diversity

However, P- can use it when the original case is in federal court under FQ AND to overcome a lack of amount in controversy

Question 12

Court’s Discretion to hear a supplemental claim when?

Answer 12

FQ dismissed early, state law claim is complex, or state law issues would predominate

Question 13

Removal: process and exceptions

Answer 13

State to Fed – one way

All Ds that have been served with process must join in removal

Within 30 days- time starts anew after on each D
P can never remove

Exceptions to removal when removing on the basis of diversity, doesn’t apply in FQ

No Removal if any D is a citizen of the forum AND

No removal more than one year after the case was filed in state court

Question 14

Erie Doctrine

Answer 14

Only in diversity cases – must apply state substantive law

Steps:
1) is there a federal law on point? If yes, Supremacy clause = apply federal law

2) If no federal law on point is it either: elements of a claim or defense; statute of limitations, rules for tolling statutes of limitations; conflict or choice of law rules = substantive =apply state law
3) issue not easy then plug into three tests – (outcome determinative, balance of interests, or avoid forum shopping)

Question 15

Venue…definition? Choices in federal ct?

Answer 15

Tells us which court to sue in.

Basic choices – P may lay venue in any district where: 1) ALL Ds reside OR 2) a substantial part of the claim arose
If Ds in different district of same state P can choose whichever

Question 16

Citizenship for Venue

Answer 16

human Ds reside where they are DOMICILED; Corporations reside wherever they are subject to PJ

Question 17

Transfer of Venue: rule, exception, factors, choice of law and improper venue remedy.

Answer 17

Can only transfer to a district where the case could have been filed, i.e. PJ over D

Exception – can transfer to improper venue if all parties consent

Court’s discretion – to transfer venue – must consider: public factors – what law applies, what community should be burdened, private factors – convenience – where are the witnesses and the evidence,

The transferee court applies the choice of law rules of the original court

If venue in original district is improper – Court can transfer or dismiss

Question 18

Forum Non Convenions

Answer 18

dismisses or stays the case

Why? B/c transferring is impossible

Must consider: public factors – what law applies, what community should be burdened, private factors – convenience – where are the witnesses and the evidence?

Other convenient court must be available and adequate. Lower sums of recovery does not make another court inadequate.

Question 19

Service of Process: purpose, timing and eligibility to serve.

Answer 19

(purpose is notice to D) – must deliver 1) a summons and 2) a copy of the complaint

Must serve within 120 days or dismissed without prejudice Unless P can show good cause for delay

Who can serve – any nonparty at least 18

Question 20

Mechanics of Service of Process: How can we serve?

Answer 20

personal service, i.e., hand it to them anywhere

substituted service – left at D’s usual abode (common sense) and served someone of suitable age who lives there.

D’s agent

State law methods ok

Waiver by mail – mail D a copy of the complaint with two copies of the waiver form with a prepaid means of returning – IF D mails within 30 days D waives formal service NOT any defenses – Effective after receipt by P and filed with the court
D fails to return form – D will pay costs of service

Question 21

Pleadings

Answer 21

Rule 11 – signing documents – certifying that 1) the paper is not for an improper purpose; 2) the legal contentions are warranted by law (non-frivolous arg for law change); 3) the factual contentions/ denials have evidentiary support (or are likely to after further investigation)

Every time you present a position to the court – continuing certification

Sanctions under Rule 11 – deter NOT punish – can be non-monetary – must give a chance to be heard – safe harbor of 21 days to fix problem (motion for sanction can be served not filed until after safe harbor)

Question 22

Complaint

Answer 22

filing a complaint commences the action

Requirements: 1) statement of grounds for subject matter jurisdiction; 2) short and plain statement of the claim, showing entitled to relief; 3) demand for relief sought.
Standard – MUST plead facts supporting a plausible claim, Bell Atlantic vs. Twombly

THREE MATTERs require pleading with particularity : 1) fraud, 2) mistake, 3) special damages

Question 23

D’s Responses: Rule 12

Answer 23

Rule 12 – requires response by either: 1) motion or 2) answer – AVOID default must respond 21 days after service of process

If service was waived you get 60 days
Motions – Issues of form (any party can bring): 1) motion for more definite statement; 2) motion to strike which is aimed at immaterial things

Question 24

Rule 12(b) Defenses: D’s Response

Answer 24

Can be raised by motion or answer – waivable defenses (2,3,4,5)must be put in first rule 12 response be it motion or answer or else waived

1) lack of SMJ – never waived
2) Lack of personal jurisdiction – waivable
3) improper venue - waivable
4) insufficiency of process (paper problems) - waivable
5) insufficient service of process - waivable
6) failure to state a claim – raised at any time through trial
7) failure to join indispensable party – raised at any time through trial

Question 25

D’s Answer; He can do/assert what?

Answer 25

Answer – admit, deny, or state that you lack sufficient information
Failure to deny can be an admission on any matter except damages

Affirmative defenses – inject new facts, e.g., statute of limitations, statute of frauds, res judicata – MUST PLEAD or they are waived

Counterclaims – claim against opposing party – part of D’s answer

• Compulsory cc – arises out of same T/O as P’s claim – ONLY compulsory claim – MUST FILE OR claim is WAIVED
• Permissive – does not arise out of same T/O – you may or file separate claim

Crossclaims – claim against a co-party – MUST ARISE OUT OF SAME T/O – NOT COMPULSORY

Question 26

Hypo: If D’s motion to dismiss is granted, does D have to file a counterclaim?

Answer 26

No, the dismissal of the claim means that D never had to actually answer the complaint thus D does not have to assert a counterclaim.

Question 27

On every cross claim, counterclaim, TPC, what do you need to access?

Answer 27

SMJ over EVERY CLAIM

Question 28

Amended Pleadings

Answer 28

Right to amend- P can amend once within 21 days after D serves her first Rule 12 response – D amend once within 21 days of serving his answer

If no right – seek leave of court – granted if justice requires - factors: delay, prejudice, and futility of amendment

Amendment after SoL – relation back if involves same conduct or T/O

Question 29

Variance & Pleadings

Answer 29

Variance – evidence at trial does not match what was pleaded

NOTE: IF D objects to evidence then would be inadmissible b/c evidence would be at variance with the pleadings.

Question 30

Discovery Scope?

Answer 30

anything relevant – “reasonably calculated to lead to the discovery of admissible evidence”

Question 31

Required Disclosures in Discovery in Fed Ct?

Answer 31

Unless court order or by stipulation of parties differs, within 14 days of the Rule 26(f) conference, you must identify persons documents or electronically stored info “likely to have discoverable information that the disclosing party may use to support its claims or defenses. 1) P must give a computation of damages and D must disclose insurance for any judgment. 2) must identify experts; 3) pretrial order – no later than 30 days before trial – must give detailed information about trial evidence, including documents identity of witnesses to testify live or by deposition.

Question 32

Discovery Tools?

Answer 32

May not be used until after the Rule 26(f) conference Unless court ordered or by stipulation

• Deposition – parties or non parties – be sure to subpoena non parties (duces tecum = bring documents); CANNOT TAKE MORE THAN 10 or depose same person twice without court order or stipulation
• Interrogatories – parties only (25 max)
• Requests to produce – non parties if accompanied by subpoena – must respond within 30 days
• Physical or mental examination – court order only
• Requests for admission
• Duty to supplement your responses if things change

Question 33

Discovering privilege information. Can it be done? If so, how?

Answer 33

Cannot discover things protected by privilege, e.g., work product (doesn’t have to be created by lawyer) UNLESS
Party shows 1) substantial need AND 2) not otherwise available
Absolutely protected work product are: mental impressions, opinions, conclusions and legal theories
Withholding discovery – use a privilege log – you must claim the privilege expressly and particularly describe the materials

Question 34

How do we enforce Discovery rules in Fed Ct?

Answer 34

Responding party – 1)seeks protective order, e.g., trade secrets, not reasonable, ; 2) partial response; or 3) no response

Remedy – Sanctions – party seeking must certify they tried in good faith to get the information without court involvement

Partial response -1) – must move for an order compelling the party to answer, plus costs (including attorney’s fees) of bringing the motion,2) IF party violates court order then RAMBO SANCTIONS plus costs, possibly held in contempt (no contempt for refusing a medical exam).

No Response – one step – Rambo Sanctions

Question 35

What do Rambo sanctions include?

Answer 35

Judge decides:
Establishment order, strike pleadings of the disobedient party, disallow evidence from the disobedient party, IF BAD FAITH - dismiss plaintiff’s case, default judgment against defendant

Question 36

Joining parties: Ps may join if

Answer 36

1) arise from the same T/O AND 2) raise at least one common question

Question 37

Joining Necessary parties

Answer 37

May be forced to join – necessary if:

• Without them the court cannot accord complete relief among existing parties; or
• A’s interest may be harmed if he is not joined; or
• A claims an interest that subjects a party to multiple obligations

JOINT Tortfeasors never necessary

Must assess if party can be joined – court has PJ over A and joining A will not goof up diversity
- If cannot be joined court will proceed or dismiss the case

Only after dismissing the case is the absentee “indispensable”

Question 38

Impleader

Answer 38

Third party practice – indemnity or contribution – Have right to implead 14 days after serving answer: D wants to bring in someone new to the case

NEED SMJ over TPD

Question 39

Interpleader

Answer 39

stakeholder – two types rule (22) and statutory

Someone holding property forces all potential claimants into a single lawsuit to avoid multiple litigation and inconsistency.

Question 40

Intervention of new party

Answer 40

Types:

• Intervention of right: Absentee’s interest may be harmed if she is NOT jointed and her interest is not adequately represented now.
• Permissive intervention: Absentee’s claim/defense and the pending case have at least 1 common ?. Discretion with ct. Usually ok unless delay or prejudice.

Question 41

Class Action: Initial Requirements

Answer 41

1) Numerosity; too many class members 2) Commonality; issue common for every member and resolution will benefit all 3) Typicality; rep’s claims/defenses typical for those of the class 4) Representative is adequate

Question 42

Types of Class Actions

Answer 42

Type 1 “Prejudice” class treatment necessary to avoid harm – e.g., many claimants to fund
Type 2 – injunction or declaratory judgment NOT damages – e.g., employment discrimination
Type 3 “Damages” 1) common questions predominate over individual questions AND 2) class action is the superior method to handle the dispute, e.g., mass tort

Question 43

What do you need to make a class action?

Answer 43

Step 1: Identify initial requirements then Step 2: fit the action into the appropriate type.

Not a class action until certified by the court – IF granted court must: 1) define the class and the class claims, issues, or defenses, AND 2) appoint class counsel – Once certified can only dismiss or settle with Court approval.

Question 44

Type 3 Class Actions

Answer 44

Court must: 1) notify class members they are in the class, i.e., individual notice (usually by mail) to all reasonably identifiable members.

Notice tells class members: 1) they can opt out; 2) they’ll be bound if they do not; 3) they can enter separate appearance through counsel, etc.

Question 45

Pretrial Adjudication: Voluntary Dismissal

Answer 45

May be allowed on court order – sometimes P has right to dismiss simply by filing a written order – P may voluntarily dismiss before D serves her answer or motion for summary judgment – the dismissal is without prejudice. Only get one

Question 46

Pretrial Adjudication: Default

Answer 46

a notation by the court clerk on the docket sheet – claimant gets a default by showing that D has failed to respond within 21 days after being served with process – D can respond any time before default is entered

Question 47

Pretrail Adjudication: Claimant needs a judgment to recover money or other remedies.

Answer 47

The clerk can enter judgment if: D made no response at all; The claim itself is for a sum certain in money; Claimant gives an affidavit of the sum owed; AND D is not a minor or incompetent – IF ANY OF THOSE FOUR IS NOT TRUE MUST GO THE JUDGE FOR A JUDGMENT.

Judge will hold a hearing and has discretion to enter judgment – D will get notice of the hearing ONLY if she made some appearance in the case.

Default judgment cannot exceed relief demanded in complaint

Question 48

Pretrial Adjudication FRCP 12(b)(6)

Answer 48

Failure to State a Claim
(if made after D has answer then motion called “motion for Judgment on the Pleadings”)– D moves for – test only the sufficiency of P’s allegations – Court ignores legal conclusions- looks only at allegations of fact and asks, “if the facts are true, would the P win a judgment?”

Looks only at face of complaint

If court considers evidence then becomes motion for summary judgment

Question 49

Pretrial Adjudication: Rule 56

Answer 49

Summary Judgment
Must show there is no genuine dispute on a material fact AND 2) that she is entitled to judgment as a matter of law. Must be made no later than 30 days after close of discovery.

Parties proffer evidence, usually affidavits or declarations, deposition testimony or interrogatory answers – under oath.

Court views evidence in a light most favorable to the moving party

Question 50

Rule 26(f) Conference

Answer 50

Unless court says otherwise, at least 21 days before scheduling conference, parties discuss claims, defenses, and settlement. Must form discovery plan, including issues about how ESI will be produced, and present it to court in writing within 14 days.

Question 51

Scheduling Order

Answer 51

court schedules cut offs for joinder, amendment, motions etc.

Question 52

Pretrial Conferences

Answer 52

Final pretrial conference determines issues to be tried and evidence to be proffered.

RECORDED IN A PRETRIAL CONFERENCE ODER, WHICH SUPERSEDES THE PLEADINGS

Question 53

Federal Ct Jury Trial Right?

Answer 53

7th Amendment – federal court only – right to jury in civil actions at law NOT suits at equity

If case contains both a civil action and an equity claim then, jury issues decided first, then equity claims

Must demand jury in writing no later than 14 days after service of the last pleading raising jury triable issues, IF NOT THEN WAIVED

Jury selection is a state action –thus can’t use preemtory strikes based on race or gender

Need at least 6 no more than 12

Question 54

JMOL and RJMOL

Answer 54

JMOL: motion made at the close of one side’s case (after other side has been heard at trial)

RJMOL: made after trial, must move for renewed JMOL within 28 days after entry of judgment

Standard – reasonable people could not disagree with result

Question 55

Motion for New Trial

Answer 55

Grounds:

1) prejudicial error at trial;
2) new evidence;
3) misconduct of party or attorney or third party or juror;
4) judgment is against the weight of the evidence;
5) excessive or inadequate damages

Make motion within 28 days after judgement

Question 56

Appellate Review Right?

Answer 56

Only from final judgments on the merits of the entire case

Question 57

Appellate Review: When to file notice?

Answer 57

Within 30 days of final judgement

Question 58

Interlocutory Review

Answer 58

Non-Final Review

Question 59

Interlocutory Review of Class Actions

Answer 59

Discretion to review order granting/denying class certification

must seek review at CoA within 14 days of order.

This does not stay proceedings unless trial judge says so.

Question 60

Interlocutory Reviews of what?

Answer 60

1) Reviewable as of right: orders on injunctions, receivers, accounting in patent infringement and orders affecting possession of property.
2) Collateral Order Exception: CoA has discretion to hear an issue if a) distinct from case merits, b) important legal ?, c) un-reviewable if parties must await final judgement.
3) Interlocutory Appeals Act: appeal of non final order if trial judge certifies that it involves a controlling issue where there is substantial ground of diff of opinion and CoA agrees to hear it.