final 001

Question 1

Ager Factors

Answer 1

The manner in which the consultation was initiated
The nature, type, and extent of the info or material provided by the expert
The duration and intensity of the consultative relationship
The terms of the consultation (if any- payment, etc)

Question 2

Discovery Rules

Answer 2

Rule 26 – discovery in general
Range: 26+

Question 3

Joinder Rules

Answer 3

13 - counterclaims/crossclaims
14 - impleader
15 - amended pleadings (relation back)
18 - joinder
19 - compulsory joinder (required parties)
22 - interpleader (stakeholder)
USC 1335 - creates SMJ
USC 1397 - creates venue
USC 2361 - creates personal jurisdiction

Question 4

USC Subject Matter Jurisdiction Rules

Answer 4

1331 - Federal Question Jurisdiction
1332 - Diversity Jurisdiction
1367 - Supplemental Jurisdiction

Question 5

1404 Factors

Answer 5

1404 - proper venue
1406 - improper venue

public/private interest factors
Convenience of the parties
Convenience of the witnesses
The interest of justice

Question 6

REA/RDA

Answer 6

2072 - Rules Enabling Act – enables the federal court to use its own rules
1652 – no FRCP rule on point

Question 7

Erie Balancing Factors

Answer 7

Which choice will best serve the twin aims of Erie (those being discouraging forum-shopping and avoiding inequity)
Whether the choice of federal or state law determines the outcome
This is a york thing
Whether the state law expresses a strong state interest AND
Whether a countervailing federal policy should overcome state law

Question 8

Louisville & Nashville Railroad Co. v. Mottley

Answer 8

*Well pleaded complaint rule: one that sets forth only a claim, unadorned by anticipated defenses or other extraneous material

Question 9

Grable/Gunn factors

Answer 9

Federal jurisdiction over a state law claim will lie if a federal issue is
Necessarily raised
Actually disputed
Substantial
Capable of resolution in federal court without disrupting the federal-state balance

Question 10

Shady Grove

Answer 10

Analyzing the REA prong of Hanna (2072)

[summary]

Question 11

Taylor v. Sturgell

Answer 11

The nonparty agrees to be bound by the first judgment
For example, if separate actions involving the same transaction are brought by different plaintiffs against the same defendant, all parties to all the actions may agree that the question of the defendant’s liability will be definitively determined in a sort of “test case”

There is a “substantive legal relationship” between the person to be bound and a party to the judgment
preceding and succeeding owners of property, bailee and bailor, assignee and assignor

The nonparty’s interests were adequately represented by someone with the same interests who was a party to the first judgment
Class actions, suits brought by trustees, guardians, fiduciaries

The nonparty assumed control over the prior litigation
The nonparty is acting as a proxy for a party from the first case
A special statutory scheme that is consistent with due process, such as bankruptcy or probate proceedings, expressly forcloses successive litigation by nonparties.

Question 12

Claim preclusion (res judicata)

Answer 12

The cases must involve the same claim/cause of action
The parties must be identical or “in privity”
The first case ended in a valid, final judgment on the merits

Question 13

Approaches to claim preclusion - jx split

Answer 13

Primary rights
A person has a right to recover for things like property damage and personal injuries, so those would be two separate claims. Litigating one would not preclude the other.
Single tortious act
Same transaction/occurrence

Question 14

Issue Preclusion (collateral estoppel)

Answer 14

The two parties are identical or “in privity”
The issue in question is identical to an issue of fact or law in the first case
The first case ended in a valid and final judgment
The issue was actually litigated in the first case
The issue was necessary to the judgment in the first case
The party against whom preclusion is asserted had a full and fair opportunity to litigate the issue in the first case

Question 15

Offensive issue preclusion - factors

Answer 15

Usually not permitted because it may increase, rather than decrease litigation. But federal courts will allow it on a case-by-case basis. The courts consider whether it is fundamentally fair to the defendant using factors
The defendant had a full and fair opportunity to litigate the issue in the first case
The judgment relied on for preclusion is inconsistent with any prior judgments in favor of the defendant
The plaintiff could have participated in the prior case but chose not to so as to gain some tactical advantage

Question 16

Rule 12 defenses that can be waived if not made in the original responsive pleading

Answer 16

lack of personal jurisdiction;
improper venue;
insufficient process;
insufficient service of process;

Question 17

Rule 12 defense that can never be waived

Answer 17

lack of SMJ

Question 18

Zubulake v. Ubs Warburg LLC cost-shifting factors for ESI

Answer 18

The extent to which the request is specifically tailored to discover relevant info
The availability of such info from other sources
Total cost of production compared to the amount in controversy
The resources available to each party
The ability of each party to control costs
Importance of issues at stake
Relative benefit to the party obtaining info

Question 19

Hertz v. Friend

Answer 19

A corporation’s principal place of business, for federal diversity jurisdiction purposes, refers to the place where the corporation’s high level officers direct, control, and coordinate the company’s activities. (The “nerve center” test)

Question 20

traditional bases of personal jurisdiction

Answer 20

A state has jurisdiction over a defendant who
Is currently domiciled in that state or
Is physically present in the state when served or
Appears in court and gives express consent to waive personal jurisdiction

Question 21

McGee

Answer 21

Due process is satisfied if it does not offend traditional notions of fair play and substantial justice (I-Shoe)

Fairness factors
Burden of the defendant
Forum state’s interest
Plaintiff’s interest in obtaining convenient and effective relief
Interstate judiciary’s interest in resolving controversies
Interests of substantive social justice

Question 22

Asahi & the stream of commerce

Answer 22

The fact that a manufacturer could foresee that its product might one day enter a state through the stream of commerce is insufficient to create personal jurisdiction in the absence of purposeful action directed at the forum state, according to O’Connor.

However, there are times when the “stream” is really a river with a substantial amount of product entering the forum state. Brennan says that in those cases, jurisdiction would be proper.

Question 23

Venue is proper when

Answer 23

Section 1391

Any defendant resides (not just where they have citizenship)
A substantial part of the events or omissions giving rise to the claim occurred or where a substantial amount of the subject property is located
if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action

Question 24

Removal/Remand

Answer 24

Section 1446

A defendant may remove a state case to a federal court that has subject matter jurisdiction. This court must be in the same district as the state court. (Section 1446)

The plaintiff can then move to remand it back to state court if there was no subject matter jurisdiction or the procedural requirements were not followed

Question 25

In-state defendant rule

Answer 25

1441(b)(2)
Diversity cases ONLY
A case cannot be removed if one of the defendants is a citizen of the state where the case was filed