MEE Civil Procedure

Question 1

What are the two requirements for diversity jurisdiction?

Answer 1

(1) The case is either (a) between citizens of different U.S. states (diversity); or (b) between citizen of a U.S. state and citizen of a foreign country (alienage); and
(2) The amount in controversy exceeds $75,000.

Diversity of citizenship jurisdiction does not exist if any plaintiff is a citizen of the same state as any defendant.

Question 2

What are the steps to applying the Erie Doctrine?

Answer 2

Step 1: Is there some federal law (like the Constitution, federal statute, Federal Rule of Civil Procedure, or Federal Rule of Evidence) on point that directly conflicts with state law? If so, apply the federal law, as long as it is valid.
Step 2: If there is no federal law on point, the federal judge must apply state law if the issue to be decided is “substantive.”
Step 3: If there is no federal law on point and the issue is not “substantive”, the federal judge must determine whether the issue is “substantive.”

Question 3

How do you determine if there is personal jurisdiction?

Answer 3

Whether there is PJ is a two-step analysis.
The exercise of PJ must first fall within a state statute (long arm statute).
The exercise of PJ must satisfy the Constitution (due process, does the defendant have “minimal contacts” with the forum state).
- Look for Contact (Purposeful Availment, Forseeability)
- Look for Relatedness (Cause)
- Look for Fairness (Burden on Defendant, State and Plaintiff Interest).

Question 4

What is supplemental jurisdiction? What is the test and the exception?

Answer 4

The claim that we want to get into federal court must share a “common nucleus of operative fact” with the claim that satisfied federal SMJ (the claim that got the case into federal court).

• Assess whether the claim to be joined satisfies the common nucleus test.
• If so, ask whether the case got into federal court under diversity or FQ. If FQ, the limitation does not apply, so supplemental jurisdiction is OK.
• If the case got into federal court through diversity, then apply the limitation. The limitation is as follows. There is no supplemental jurisdiction if the claim:
• Is asserted by a plaintiff; and

Note what this means: Defendants and other non-plaintiffs generally may use supplemental jurisdiction. The limitation does not apply to them!

Question 5

What is federal question jurisdiction? What is the rule applicable to FQJ?

Answer 5

The pleader must follow the “well pleaded complaint” rule. That is, it is not enough that some federal issue is raised by the complaint. The plaintiff’s claim itself must “arise under” federal law.

Unless the exam question says the claim is based on a federal law, regular tort, contract, and property claims are not federal.

Question 6

What is venue? How can plaintiff choose it?

Answer 6

Venue tells us exactly where
to bring it, that is, in which federal court to bring it.

(1) All defendants reside (residential venue);
(2) A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue).

Question 7

What is a 1404(a) transfer?

Answer 7

Section 1404(a) provides that: “for the convenience of parties and witnesses, in the interest of justice, a district may transfer any civil action to any other district where it might have been brought.”

Question 8

What is a 1406(a) transfer?

Answer 8

Section 1406(a) provides that “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.”

Question 9

How does removal work?

Answer 9

The defendant files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (diversity or FQ). Permission of the state or federal court is not required. The defendant attaches all documents that were served on her in the state action. The defendant then “promptly” serves a copy of the “notice of removal” on adverse parties and files a copy of the “notice of removal” in state court.

The defendant must remove no later than 30 days after service (not filing) of the first paper that shows the case is removable.

Plaintiffs can never, never ever, remove.

Question 10

What are the two limitations on removal based on diversity of citizenship jurisdiction?

Answer 10

There are two limitations to removing a case based solely on diversity of citizenship:
(1) The case should not be removed if any defendant is a citizen of the forum state (the “in-state defendant rule”); AND
(2) The case should not be removed more than one year after the case was filed in state court.

Question 11

How does joinder of parties by the plaintiff work?

Answer 11

The rule is that the claims by multiple
plaintiffs or against multiple defendants must:
(1) Arise from the same transaction or occurrence (“T/O”); and
(2) Raise at least one common question of law or fact.

Question 12

How does joinder of necesarry parties by the defendant work (can also in rare cases be used by the plaintiff)?

Answer 12

(1) Is the absentee necessary (or “required”) (The absentee’s interest may be harmed if she is not joined)?
(2) If the absentee is necessary, can the absentee be joined? AND
(3) If the absentee can’t be joined, can the case proceed anyway?

Note: joint tortfeasors are never necessary.

Question 13

What are the three different types of joinder of claims? How do they operate?

Answer 13

Compulsory Counterclaims: A compulsory counterclaim is one that arises from the same T/O as the plaintiff’s claim. If you do not use it, you lose it.

Permissive Counterclaims: A permissive counterclaim is one that does not arise from the same T/O as the plaintiff’s claim. Can sue in different case.

Crossclaims: A crossclaim is a claim against a coparty. It must arise from the same T/O as the underlying action. But it is not compulsory; it can be asserted in another case.

Question 14

What is an impleader claim?

Answer 14

An impleader claim is used to shift to the TPD the liability that the defendant will owe to the plaintiff. So if the defendant is found liable to the plaintiff, he will try to get the TBD to pay all or part of his own liability. Look for claims for indemnity (all) or contribution (pro-rata).

Question 15

What are the requirements for a class action?

Answer 15

(1) Numerosity - Numerosity means that there are too many class members for practicable joinder. There is no magic number.
(2) Commonality - There must be some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.
(3) Typicality - The class rep’s claims are typical of the claims of the class.
(4) Representative Adequate - The class rep will fairly and adequately represent the class.

Question 16

What is required in discovery? Must everything be disclosed?

Answer 16

Initial required disclosures are information that each party must give to other parties—even though the parties have not asked for it. Unless a court order or stipulation of parties says otherwise, within 14 days of the Rule 26(f) conference, each party must disclose certain information.

People or documents that the party may use to support her claims or defenses ARE REQUIRED DISCLOSURES.

“Discoverable” is broader than “admissible.”

Question 17

What is the Rule 26(f) pretrail conference?

Answer 17

Unless the court order says otherwise, at least 21 days before the court’s scheduling order, the parties “meet and confer” to discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information. They must present to the court a detailed discovery plan no later than 14 days after the Rule 26(f) conference.

Question 18

When does the plaintiff have a right to amend their claim? When does a defendant have a right to amend their answer?

Answer 18

By Plaintiff - The plaintiff has a right to amend her complaint once as of course no later than 21 days after the defendant serves her first Rule 12 response.
By Defendant - The defendant has a right to amend his answer once as of course no later than 21 days of serving it.

Question 19

What is a “relation back” amendment?

Answer 19

An amended pleading “relates back” if the pleading concerns the same conduct, transaction, or occurrence as the original pleading (that is, the pleading that is being amended). Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a statute of limitations problem.

Question 20

What is included in “service of process”?

Answer 20

(1) Summons, which is formal court
notice of suit and the timing for response; and
(2) Copy of the complaint. Together, these two documents are sometimes called “process.”

Question 21

Who can serve process?

Answer 21

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

Question 22

When must process be served?

Answer 22

If the defendant is to be served within the United States, service must take place within 90 days of the filing of the complaint. This period may be extended for good cause.

Question 23

How may process be served?

Answer 23

Directly to the defendant. OR

(1) At the defendant’s usual place of abode; (2) with someone of suitable age and discretion; (3) who
resides there.

Can use state law where the federal court sits or the service is to be made.

Question 24

How does waiver of service of process work?

Answer 24

To request this waiver, the plaintiff mails the defendant a notice and request to waive service. The plaintiff must include a copy of the complaint and two copies of a waiver form, with a prepaid means of returning the form (for example, self-addressed, stamped envelope). If the defendant executes and mails the waiver form to the plaintiff within 30 days (60 days if the defendant is outside the U.S.), she waives formal service of process.

If the defendant did not have good cause for failing to return the waiver form, the defendant must pay the costs of service.

Question 25

How does preliminary injunctive relief work (Rule 65)?

Answer 25

Injunctive relief is a court order that the defendant either (1) do something or (2) refrain from doing something. Courts are nervous about granting injunctions because the merits of the underlying dispute have not been decided.

Question 26

How does a TRO operate?

Answer 26

So a TRO cannot extend beyond 28 days (14+14). If the court extends a TRO beyond 28 days, it may be treated as a preliminary injunction.

Question 27

What are the requirements for a preliminary injuction applicant?

Answer 27

• She is likely to suffer irreparable harm if the injunction is not issued;
• She is likely to win on the merits of the underlying case;
• The balance of hardship favors her (threatened harm to applicant outweighs harm to other party if the injunction is issued); and
• The injunction is in the public interest.

Question 28

What are the different Rule 12 motions to form?

Answer 28

• A Rule 12(e) motion for more definite statement is used when the complaint is so vague or ambiguous the defendant simply cannot respond; must make this motion before answering;
• A Rule 12(f) motion to strike asks the court to remove redundant or immaterial things from a pleading (that is, a complaint, an answer, etc.); and
• Any party can move to strike (for example, a defendant moves to strike allegations of fraud or plaintiff moves to strike an affirmative defense).

Question 29

What are the waivable defenses under Rule 12(b) (waived if not put in first response (motion or answer))?

Answer 29

• A lack of personal jurisdiction;
• Improper venue;
• Improper process (a problem with the papers); and
• Improper service of process.

Question 30

What are the defenses under Rule 12(b) that can be raised later?

Answer 30

• A failure to state a claim and a failure to join an indispensable party. These motions can be made as late as at trial.
• A lack of subject matter jurisdiction may be raised at any time.

Question 31

What is a motion for summary judgement?

Answer 31

The party moving for summary judgment must show that:
(1) There is no genuine dispute on a material fact; and
(2) She is entitled to judgment as a matter of law.

If the standard is met, the court is not always required to grant the motion.

Question 32

What are the five requirements for Collateral Estoppel (Issue Preclusion)?

Answer 32

Five Requirements:
(1) Case 1 Ended in Valid, Final Judgment on the Merits.
(2) Same Issue Actually Litigated and Determined in Case 1.
(3) Issue Was Essential to Judgment in Case 1.
(4) Against Whom Is Preclusion Used? (Due Process Factor, can only be used against a party to Case 1).
(5) By Whom Is Preclusion Used? (Mutuality Rules, Must be Fair).

Question 33

What is the final judgement rule?

Answer 33

The losing party has a right to appeal if the court’s order is a final judgment. A final judgment is one that determines the merits of the entire case. To determine whether an order is a final judgment, ask “after making the ruling”: Does the trial court have anything left to do on the merits of the case? If the answer is “yes,” it is not a final judgment but rather an “interlocutory order.”

Question 34

What is JMOL?

Answer 34

The standard for granting the motion is that reasonable people could not disagree on the result. It’s like summary judgment (where there was no dispute of material fact), except that this comes up at trial instead of before trial. Like summary judgment, the court views the evidence in the light most favorable to the non-moving party.

Question 35

What is a Writ of Mandamus?

Answer 35

An extraordinary writ of mandamus or prohibition is an original proceeding in the court of appeals to compel the district judge to make or vacate a particular order. The writ is not a substitute for appeal. It is available only if the district court is violating a clear legal duty.

Question 36

What is a motion for new trial?

Answer 36

A new trial can be granted on any (non-harmless) error that makes the judge think there should be a do-over. A party must move for a new trial within 28 days of the judgment. Some reasons a new trial may be granted are:
* The judge gave an erroneous jury instruction.
* New evidence was discovered that could not have been discovered before with due diligence.
* Misconduct was committed by a juror, party, or lawyer, etc.
* The judgment is against weight of the evidence (serious error of judgment) AND
* Damages are inadequate or excessive.

Question 37

What are the requirements for Res Judicata (Claim Preclusion)?

Answer 37

(1) Same Claimant Suing the Same Defendant.
(2) Valid, Final Judgment on the Merits.
(3) Case 1 and Case 2 Must Be the “Same Claim”.

Question 38

What is the “collateral order” doctrine?

Answer 38

The appellate court has discretion to an appeal on an issue if that issue:
* Is distinct from the merits of the case;
* Involves an important legal question; AND
* Is essentially unreviewable if parties await a final judgment.