Civil Procedure

To obtain a new trial, a party must demonstrate that a juror failed to:

(1) answer honestly a material question on voir dire, and (2) show that a proper response would have provided a valid basis for a challenge for cause.

In order for a federal court to have jurisdiction over a foreign corporation, . . .

(1) the claim must be a federal one and (2) the foreign corporation must have minimum contacts with the forum state.

remand order is generally not reviewable on appeal or otherwise

(except for an order remanding a civil rights case removed pursuant to § 1443 or a remand order in a class action, if the application for review is made to the court of appeals not more than 10 days after the entry of the order).

When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, the court may:

(i) approve a judgment that is consistent with the answers (i.e. rule for the other party), notwithstanding the general verdict, (ii) direct the jury to reconsider its answers and verdict, or (iii) order a new trial.

Federal Rule of Civil Procedure 4 provides that service may be made by:

(i) personally serving the summons and complaint on the defendant; (ii) leaving the summons and complaint at the defendant's usual place of abode with a person of suitable age and discretion who resides there; or (iii) delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service. Further, service is proper if made according to the state law of the forum or service state.

Answers and counterclaims are not considered in determining the existence of federal question jurisdiction.

True, only the complaint is considered

one plaintiff vs one defendant

plaintiff can aggregate all his claims against the defendant to meet amount in controversy

Examples of specific areas of law that have been determined to be procedural, rather than substantive, include:

1. If there is a jury in a diversity case on a state-law claim, then the jury—rather than a judge—will decide all factual issues in the case, regardless of whether state law would provide otherwise 2. Assessment of attorney's fees 3. Equitable versus legal

Two times that complaint must be plead with specificity

1. allegations of fraud 2. if seeking special damages

three bases for general in personam jurisdiction

1. physical presence (i.e., service of process while defendant is physically present in state, but if defendant is in state to answer summons or brought in state by force or fraud, service = no good) 2. domicile (for individuals); state of incorporation/principal place of business for corporation 3. consent

Any party may demand a jury trial in an action at law, as long as the demand is served within _____ days after service of the last pleading

14

Initial disclosures under Rule 26(a)(1) must be made at or within ____ days after the parties' discovery conference, unless a different time is set by stipulation or court order.

14

When a defendant files a pre-answer motion under Rule 12, such as a motion to dismiss for lack of personal jurisdiction, the defendant has ______ days after receiving notice of the court's decision on this motion to file its answer.

14

Unless the court orders otherwise, a party must respond to an amended pleading within the later of . . .

14 days after service of the amended pleading or the time remaining for response to the original pleading.

A written motion and notice of a hearing must be served at least

14 days prior to the hearing, unless (i) the motion can be heard ex parte, (ii) the Rules provide for it, or (iii) the court orders otherwise.

any nonparty who is at least ___ years old may serve the defendant.

18

If a pleading contains an insufficient defense, a party must move to strike the defense from the pleading either before responding to the pleading or, if a responsive pleading is not permitted, within _____ days after being served with the pleading.

21

a motion for a new trial must be filed no later than _____ days after the entry of judgment.

28

A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within ___ days after being served or joined, unless a different time is set by stipulation or court order.

30

The responding party must serve its answers and any objections within ___ days after being served with the interrogatories.

30

Under the federal rules, a jury must initially have at least ____ and no more than _____ members.

6, 12

time Limit for Service. If a defendant is not served within ___ days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice

90

(ii) disclosures of expert testimony ___ days before trial, and (ii)pretrial disclosures ___ days before trial.

90, 30

Which discovery device can be used on a nonparty?

A plaintiff may take an oral deposition of a nonparty witness, such as the former employee, as long as the nonparty is given proper notice. By contrast, all of the other devices listed (interrogatories, physical exams, and requests for admission) can be used only against a party.

preliminary injunction

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to suffer irreparable harm in the absence of relief; (3) the balance of equities is in his favor; and (4) the injunction is in the best interest of the public. Additionally, the party seeking the preliminary injunction must provide a bond to cover the costs in the event the preliminary injunction is issued wrongfully.

Forum Non Conveniens

Allows a court to dismiss an action—even if personal jurisdiction and venue are otherwise proper—if the court finds that the forum would be too inconvenient for parties and witnesses and that another, more convenient, venue is available. To convince a court to invoke the doctrine of forum non conveniens, the defendant ordinarily bears a heavy burden to displace the plaintiff's chosen forum. Some of the factors that are generally considered include (i) the availability of an alternative forum, (ii) the law that will apply, and (iii) the location of the parties, witnesses, and evidence.

If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, then the case must be remanded to the state court from which it came

BUT a party must make any motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction within 30 days after the filing of the notice of removal.

For purposes of venue, where do corporations reside?

Business entities are deemed to reside in any judicial district in which they are subject to personal jurisdiction with respect to the civil action in question. In general, due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

Need good cause to order physical examination of a party to a suit.

If plaintiff has placed her physical condition into controversy by claiming personal injury damages, this is sufficient "good cause" for the court to order a physical examination.

A mother and her son were both injured at a construction site. They brought a negligence action in federal court against the construction company for failure to exercise reasonable care with respect to their presence at the site. The mother alleged in good faith that she suffered $55,000 in damages; her son alleged in good faith $200,000 in damages. Subsequently, they permissively joined as a defendant under Rule 20 an individual whose intentional actions in tampering with warnings posted by the construction company also allegedly caused their injuries. The mother and her son are citizens of the forum state; the two defendants are citizens of other states. The individual defendant has moved to dismiss the mother's claim against it for lack of subject-matter jurisdiction. How should the court rule?

Grant the motion, because the mother's claim was asserted against a defendant who was permissively joined under Rule 20. The court does not have diversity jurisdiction over the mother's claim against the individual defendant, even though there is complete diversity between the parties, because her claim does not exceed $75,000. Nor can the court exercise supplemental jurisdiction over her claim against the individual defendant. The mother's claim does form part of the same case or controversy as her son's claim and the court does have diversity jurisdiction over his claim because it meets both the amount-in-controversy and diversity-of-citizenship requirements. Despite that, because the mother's claim is made by a plaintiff against a party permissively joined under Rule 20, the court cannot exercise supplemental jurisdiction.

The defendant was not subject to service of process in her home state for this action under the laws of the forum state. Nonetheless, defendant was personally served in her home state. Does the court have personal jurisdiction over the defendant?

No, a federal court must generally determine whether personal jurisdiction exists as if it were a court of the state in which it is situated. The service of a summons in a federal action establishes personal jurisdiction over a defendant "who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located." Because the defendant was not subject to service of process for this action under the laws of the forum state, the federal district court does not have personal jurisdiction over the defendant despite the fact that she was personally served with process.

Plaintiff filed a case in state court. there was diversity jurisdiction so plaintiff could have filed the case in federal district court. defendant filed a permissive counterclaim seeking $80,000, can the plaintiff remove the case to federal court?

No, removal of a state action to federal court is a right that can only be exercised by a defendant. A plaintiff cannot remove an action filed in state court to a federal district court in the same state.

Amendment by leave of court

The court should freely give leave to amend a pleading when justice so requires unless the amendment would result in undue prejudice to the opposing party.

A party that brings a claim that would have been a compulsory counterclaim in a prior action, is not precluded from bringing that claim if it did not file a pleading in the prior action.

This instance arises when the party files a motion to dismiss in the prior claim, and the motion is granted. The party can still bring its claim arising out of the same transaction or occurrence as the prior action from which it was dismissed, if the party did not file an answer.

In a diversity case on a state law claim, the federal court may properly use its inherent power to assess attorney's fees as a sanction for a defendant's bad-faith conduct during the litigation, even if the law of the forum state provides that attorney's fees may not be awarded to a successful party.

This is because the assessment of attorney's fees has been determined to be a procedural issue, rather than substantive.

A class member who is not named as a representative is generally entitled to individual notice if the class was certified under Rule 23(b)(3) (common question of law or fact). However, notice is not typically provided by means of personal delivery or registered mail.

True

A court may grant a new trial on the basis of an inadequate verdict,

True

A motion to dismiss for failure to join a necessary party is not required to be made in a defendant's initial pleading. It may be raised in any pleading, in a motion for judgment on the pleadings, or at trial.

True

A plaintiff who has filed a lawsuit in a court is deemed to have consented to the court's personal jurisdiction with regard to any counterclaim asserted against her, even if she withdraws her initial complaint.

True

Although a federal district court may remand an action to state court that has been removed to federal court, a federal district court lacks the power to transfer an action to state court that was not initiated there.

True

Although a federal statutory interpleader action requires only that there be minimum diversity (i.e., that at least two adverse claimants be citizens of different states), a federal rule interpleader action must satisfy the general diversity-of-citizenship requirement.

True

Although the court may require the parties to file jury instructions at the close of evidence or at any earlier reasonable time, a party can file a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court for such requests.

True

If the court considers new evidence in its review of a motion to dismiss, such as an affidavit, it should treat the motion as a motion for summary judgment rather than a motion to dismiss.

True

In support or opposition to a motion for summary judgment, the parties may submit affidavits, documents, electronically stored information, pleadings, deposition transcripts, interrogatory answers, admissions, and stipulations filed by the parties, as well as other materials in the record.

True

Several defendants or several plaintiffs may be considered as a single party for the purpose of making such challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.

True

The court is not required to state findings or conclusions when ruling on a motion under Rule 12 (motions against the complaint) or 56 (summary judgment) or, unless the rules provide otherwise, on any other motion.

True

The court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement. The court may require that a party or its representative be present or reasonably available by telephone or by more sophisticated electronic means to consider possible settlement. If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action.

True

Under Rule 19(b), if a necessary party cannot be joined because of jurisdictional or venue concerns, then the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or be dismissed. If the court determines that the party is indispensable, the court must dismiss the case.

True

Under Rule 37, if a party fails to make the automatic disclosures required by Rule 26(a) or fails to respond to discovery that has been properly served, the party seeking the information may move to compel such disclosure or discovery. Generally, making a motion to compel is a prerequisite to obtaining any sanctions under Rule 37.

True

Under the Seventh Amendment, a party to a civil action has the right to a trial by jury with regard to an action at law (i.e., an action for damages). If an action involves both legal and equitable claims and there are common factual issues, then the jury determines the legal claims first and the court subsequently determines the equitable claims. The court is bound by the jury's findings on the legal claims in determining the equitable claims.

True

Unless the parties stipulate otherwise, the Federal Rules of Civil Procedure require that a jury verdict be unanimous.

True

When a district court has diversity jurisdiction over a claim, the common-nucleus-of-operative-facts rule applies to determine whether the court can exercise supplemental jurisdiction over an additional claim. Although the additional claim is not required to satisfy the amount-in-controversy requirement, the addition of the party bringing the claim cannot result in a violation of the requirement for complete diversity of citizenship.

True

An injunction can contribute to amount of controversy

True, the court determines both the value of the plaintiff's harm if an injunction is not imposed and the defendant's cost of complying with an injunction. If the amount of either exceeds $75,000, then the amount-in-controversy requirement is satisfied.

Intervention as a matter of right

Under Rule 24, a nonparty has the right to intervene in an action when, upon timely motion, (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty's interests; and (3) the nonparty's interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.

judge and voir dire

a judge may conduct voir dire without permitting the parties or their attorneys to directly examine the prospective jurors. a judge is not required to ask questions submitted by a party or the party's attorney that the court considers to be improper.

Are crossclaims ever compulsory?

always permissive, they are never compulsory even if arising out of the same transaction or occurrence

Relation back-new claim

an amendment to a pleading will relate back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading. This may be important for the purposes of complying with the applicable statute of limitations. An amendment will also relate back to the date of the original pleading if the law that provides the applicable statute of limitations allows relation back.

A defendant who is not a resident of the United States may be sued in . . .

any judicial district because a defendant who is not a resident of the United States is deemed to be a resident of any judicial district.

For statutory interpleader, diversity jurisdiction is met if

any two adverse claimants are citizens of different states. With regard to the amount in controversy, in a statutory interpleader action, the property at issue must merely exceed $500 in value. Nationwide personal jurisdiction over a party exists with regard to an action brought under the federal interpleader statute.

initial disclosure rule

applies to documents in the possession, custody, or control of a party that may be used to support the party's claim or defense.

For a class action that is certified under Rule 23(b)(1) (risk of varying adjudications or risk that dispositions of individual members claims would impede other member's ability to protect their interests) or (2) (injunctive relief), notice to the class members, other than the named representatives, is . . .

at the discretion of the court. The court may order that appropriate notice be given, which often takes the form of publication notice.

The existence of diversity jurisdiction is tested . . .

at the time that the complaint is filed.

In the absence of general bases for personal jurisdiction, Long-arm statutes . .

authorize personal jurisdiction over nonresidents who engage in some activity in the state or cause some action to occur within the state. In many states, the long-arm statute either directly authorizes or has been interpreted as authorizing jurisdiction to the extent permissible under the Due Process Clause. In some states, the long-arm statute only confers jurisdiction over specific activities undertaken in the state.

When there is only one plaintiff and one defendant, all of the plaintiff's claims against the defendant, including unrelated claims, __________ be aggregated for purposes of determining whether the amount-in-controversy requirement has been satisfied.

can

Plaintiffs ______________ aggregate their damages against a defendant to meet the amount in controversy threshold for diversity jurisdiction

cannot

Service on corporations and associations can be made by

delivering the summons and complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process.

Under Rule 41(b), if the plaintiff fails to prosecute or to comply with the Rules or a court order, then a defendant may move to dismiss the action or any claim against him.

dismissal is on the merits

Eerie Doctrine

federal courts exercising diversity jurisdiction must apply the substantive law of the state in which they sit as the states highest court has interpreted the law. If the states highest court has not rule a specific issue, the federal court must make an "eerie guess" as in they must decide the issue as they think the states highest court would decide it or they could certify the question to the states highest court.

a defect in personal jurisdiction must be raised at ________ or its waived.

first opportunity. Note: this means a pre-answer motion to dismiss if the defendant chooses to file one or it must be raised in the answer. HOWEVER a party may amend its pleading (answer) once within 21 days after serving any may include defense of lack of personal jurisdiction in the amendment. Thus, only after the 21 days passes, has it truly been waived. Note 2: a party that fails to raise lack of personal jurisdiction in answer, cannot later file motion to dismiss for lack of personal jurisdiction, the only way to raise the issue would be to amend the answer within 21 days.

new trial allowed for: (not an exclusive list)

i) Error at trial that renders the judgment unfair; ii) Newly discovered evidence that existed at the time of trial was excusably overlooked and would likely have altered the outcome of the trial; iii) Prejudicial misconduct of counsel, a party, the judge, or a juror; iv) A verdict that is against the clear weight of the evidence; v) A verdict that is based on false evidence; or vi) A verdict that is excessive or inadequate.

A federal court with diversity jurisdiction over an action must apply the conflict-of-laws rules of the state . . .

in which it sits because conflict of law rules are considered substantive

The following are subject to initial disclosure and must be must provide to the other parties for inspection and copying, even parties don't request them:

i) The name and, if known, address and telephone number of each individual likely to have discoverable information, along with the subjects of that information that the disclosing party may use to support its claims or defenses, unless the use would be solely for purposes of impeachment; ii) A copy, or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; iii) A computation of each category of damages claimed by the disclosing party, who must also make available for inspection and copying the documents or other evidentiary material on which each computation is based, including materials bearing on the nature and extent of injury, unless privileged or protected from disclosure; and iv) For inspection and copying, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

Rule 60(b) allows a court to relieve a party from a final judgment or order for a motion filed:

i) Within a reasonable time, and no later than one year following the entry of the judgment or order for mistake, inadvertence, surprise, excusable neglect, newly discovered evidence that could not have been earlier discovered with reasonable diligence, fraud (intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

one plaintiff vs. multiple defendant

if the defendants are jointly liable, plaintiff can aggregate all of his claims against the defendants (treated as one defendant), otherwise plaintiff cannot add up all claims against multiple defendants

interlocutory appeals

injunction, receivership, failure to certify class action, attachment of property, distinct question (immunity) if a district court certifies that an order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, then a court of appeals has discretion to permit an appeal to be taken from such order if application is made to it within 10 days after the entry of the order.

If the propriety of the removal is challenged, then the burden of establishing proper removal . . .

is on the party who removed the case.

The defenses of . . . must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer , or the defenses will be waived

lack of personal jurisdiction, improper venue, and insufficient service of process (can amend answer to include them, unless motion is filed first that omits them)

for quasi in rem jurisdiction you still need

minimum contacts, the property alone in the state is not enough

multiple plaintiffs vs on defendant

multiple plaintiffs cannot add their claims to meet amount in controversy against one defendant

After the jury returns a verdict and before the jury is dismissed, the court ____________ poll the jurors individually if a party requests.

must

federal rule interpleader

must satisfy the general $75,000 amount-in-controversy requirement and claimants must be diverse from stakeholder. claimants need not be diverse from each other

Under Rule 30(d)(1), a deposition is limited to _____________, unless the parties agree otherwise or the court orders otherwise. and how many days notice for deposition?

one day of seven hours / 30 days notice

A motion for relief from judgment under Rule 60(b) must be filed within a reasonable time and no later than . . .

one year following the entry of the judgment.

An action against a federal officer or employee acting in an official capacity or under color of legal authority may be brought in the judicial district in which the . . .

plaintiff resides or the judicial district where all of the relevant events on which the claim is based took place.

In deciding a motion under Rule 12(b)(6), courts must view the pleading in the light most favorable to the . . .

plaintiff.

When a plaintiff seeks special damages or fraud, the plaintiff is required to

plead such damages with specificity.

temporary restraining order

preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction. A TRO has immediate effect and lasts no longer than 14 days unless good cause exists. A TRO can be issued without notice to the adverse party (ex parte hearing) if the moving party can show (1) that immediate and irreparable injury will result prior to hearing the adverse party's arguments and (2) the efforts made at giving notice and the reason why notice should not be required. Additionally, the party seeking a TRO must post a bond to cover the costs in the event the TRO is issued wrongfully.

Two areas of state law are generally excluded from diversity jurisdiction:

probate matters (probate of a will or administration of an estate) and domestic relations actions (divorce, alimony, custody disputes). Note, though, that these exceptions apply only to cases that are primarily probate or marital disputes.

Although most non-final (interlocutory) orders cannot be appealed, orders concerning injunctions are appealable immediately as of ________.

right

An opposing affidavit must be served at least . . .

seven days before the hearing, unless otherwise ordered.

In determining a state's substantive law, the U.S. district court will be bound by the rulings of the . . .

state's highest court. If the state's highest court has not spoken on an issue, however, the federal court must try to determine how the state's highest court would rule on the issue, if it did consider it.

conflict of law rules are considered _______ law.

substantive, not procedural

In order for a representative of a class to sue on behalf of all members of a class, the class must be so numerous that . . .

that joinder of all members is impracticable.

When the United States is a defendant in a civil action, service must be made on . . .

the U.S. Attorney General as well as the U.S. attorney for the district in which the action has been filed. A party must send a copy of the summons and complaint by registered or certified mail to the U.S. Attorney General.

Before making a motion for a default judgment under rule 55 against a defendant, . . .

the court clerk must first enter the defendant's default.

When a jury's verdict does not properly follow the court's instructions,

the court may set aside the verdict and order the jury to resume deliberations and would even be within its discretion to order a new trial.

When discovery is challenged,

the court must weigh the party's interests in seeking discovery against the privacy interests of the party resisting discovery.

If the defendant agrees to waive service, what date is deemed the date of service of process? (relevant for when statute of limitations on claim is almost up)

the date on which the plaintiff files the waiver form with the court will be deemed the date of service of process.

Under Federal Rule of Civil Procedure 12, the defense of insufficient service of process is waived if it is not raised in a pre-answer motion or, if no pre-answer motion is made, in the answer.

the fact that the defendant received notice would not prevent him from objecting on the grounds of improper service.

A party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. To discover such work product, . . .

the party requesting the documents would have to establish both that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

As a corporation, the insurer is a citizen of . . .

the state of its incorporation and also a citizen of the state of its principal place of business. However, an insurer is also deemed to be a citizen of the insured's state when the insurer is sued in a direct action.

Generally, the Defendant's answer must state any avoidance or affirmative defense that the defendant has, or that is deemed waived. However, the Rules also provide that pleadings can and should be amended by leave of the court when justice requires it. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party.

thus although generally a defendant waives an affirmative defense it fails to raise in an answer, it may still amend as of right within 21 days or beyond that with leave of court to assert that affirmative defense.

when are two actions deemed identical for res judicata purposes?

two actions are deemed to be identical because they arose out of the same transaction

a defendant waives any objection to personal jurisdiction by

voluntarily litigating (substantial participation) on the merits before raising the objection.

Multiparty, Multiforum Trial Jurisdiction Act of 2002

when a civil action "arises from a single accident, where at least 75 natural persons have died in the accident at a discrete location," only one plaintiff need be of diverse citizenship from one defendant for a federal court to have diversity jurisdiction, provided a defendant resides in a state and a substantial part of the accident took place in another state or other location.

A court may correct a clerical or other mistake resulting from oversight or omission whenever one is found in a judgment on motion by a party or on its own initiative, with or without notice. However, once an appeal from the judgment or order has been docketed in the appellate court, such a correction can be made only . . .

with leave of the appellate court.

General Bases for In Personam Jurisdiction

1. If a defendant is voluntarily present in the forum state and is served with process while there (two exceptions: fraud by plaintiff to bring defendant to state; OR defendant passing through state to attend other judicial proceedings) 2. Domicile in the state in which the court is located 3. Consent

CHOICE OF LAW: THE ERIE DOCTRINE

1. If the action is a federal question claim, then federal substantive and procedural law will control, as well as federal common law. 2. In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located., However, procedural issues are addressed by federal law 3. If no federal law applies, then the general rule is that the district court must follow state law with regard to substance, but if there is a federal law on point and it is in conflict with state law, then the district court must apply federal law rather than state law. 4. If no federal statute or rule is on point, then the court must determine whether federal common law, rather than state law, should be applied. In making this determination with respect to federal common law, the district court will ask whether the failure to apply state law will lead to different outcomes. If the answer is no, then the district court will generally apply federal common law, rather than state law. If the answer is yes, then the court will apply state law, unless affirmative countervailing federal interests are at stake

Change of venue when original venue is proper:

1. In a diversity case, if the court transfers the case, then the district court to which the case is transferred must apply the law that would have been applied in the district court that transferred the case 2. In a federal question case transferred to a district court in another appellate circuit, the district court to which the case is transferred must apply the federal law as interpreted by its federal Court of Appeals and not the interpretation of the federal Court of Appeals in which the district court that transferred the matter is located.

Exceptions to complete diversity requirement:

1. Interpleader: the holder of property that is claimed by two or more persons may deposit the property with a court to determine ownership. Under the Act, there need be only two adverse claimants of diverse citizenship to establish federal jurisdiction. 2. Class actions greater than $5,000,000 + at least 100 people: diversity will be met if any member of the plaintiff class is diverse with any defendant. 3. Civil action that "arises from a single accident, where at least 75 natural persons have died in the accident at a discrete location: only one plaintiff need be of diverse citizenship from one defendant

the movant may file a renewed motion for judgment as a matter of law no later than ___ days after the entry of judgment

28

days to respond to request for admissions

30

Defendant who wants to remove a state court action to federal district court must file a notice of removal with the district court within

30 days after receipt by or service on that defendant of the initial pleading or summons.

a party may file a motion for summary judgment at any time until . . .

30 days after the close of all discovery.

the plaintiff must serve the summons and complaint within . . .

90 days after filing the complaint. If, however, the plaintiff shows "good cause" why service was not timely made, then the court must extend the time for service for an appropriate period. If no such showing is made, then dismissed without prejudice

supplemental jurisdiction does not apply to the claims of a person seeking to intervene (either as of right or permissively)

A claim of an intervenor must be supported by its own jurisdictional basis.

If removal is based on diversity and the plaintiff (i) seeks nonmonetary relief, (ii) is not required under state law to demand a specific sum, or (iii) is permitted by state law to recover more than the amount demanded, then the notice of removal may assert that the amount in controversy exceeds $75,000, and the district court will have jurisdiction if it finds, by a preponderance of the evidence, that the amount does exceed $75,000.

A defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds $75,000; it does not need to contain evidentiary submissions.

Removal is only allowed by defendants

A plaintiff is not allowed to remove a case to federal court, even if the defendant is diverse and has counterclaimed for more than the federal statutory jurisdictional amount.

Class Actions and Diversity Jurisdiction

Diversity of citizenship will be satisfied if the class representatives are diverse from the party or parties opposing the claim and when at least one representative plaintiff of a putative class action has a claim that meets the statutory jurisdictional amount

"two-dismissal" rule

If a plaintiff has voluntarily dismissed an action based on a claim, a subsequent voluntary dismissal of an action based on the same claim is a dismissal with prejudice and thus has preclusive effect.

In evaluating whether true diversity exists, courts will look beyond the face of the pleadings to determine the "ultimate interests."

If necessary, they will "arrange the parties according to their sides in the dispute."

When there is a legitimate assignment of a claim, the assignee becomes the real party in interest and its citizenship, as opposed to the assignor's citizenship, will be determinative.

If the assignment is being effected to manufacture or create diversity jurisdiction collusively, however, diversity jurisdiction will not exist.

The value of a single plaintiff's claims against each defendant may not be aggregated if the claims are separate and distinct.

If the defendants are jointly liable to the plaintiff, then aggregation to meet the amount-in-controversy requirement is permissible.

Due process is met if the notice is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections

If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through in-person delivery, registered mail, return receipt requested, or some other means likely to notify the particular individual is required. If the identity or address of interested parties is not obtainable through reasonable efforts, then other means, such as publication of notice in newspapers, may be satisfactory. The constitutional test is, generally, what is reasonable under the circumstances. The standards are less strict for in rem and quasi-in-rem cases than for in personam cases.

change of venue when original venue is improper

If venue in a case is improper, then the district court must dismiss the case, or "if it be in the interest of justice," transfer the case to any district or division in which it could have been brought. If no timely objection is made to venue, then nothing prevents the district court from maintaining jurisdiction over the case. 1. In diversity cases transferred for improper venue, the district court to which the case is transferred applies the choice-of-law rules of the state in which it is located, as opposed to the state law of the district court that transferred the case. 2. In federal question cases transferred for improper venue, the district court to which the case is transferred applies the interpretation of federal law by its Court of Appeals.

An out-of-state corporation's contacts with the forum state will not automatically establish jurisdiction over a wholly owned subsidiary of the corporation, and contacts by a wholly owned subsidiary will not automatically confer jurisdiction over a corporate parent.

If, however, the subsidiary is the corporate parent's alter ego or is specifically acting as the corporate parent's agent, then its contacts may be imputed to the corporate parent.

When a diverse defendant makes a compulsory counterclaim under state law for more than the federal statutory jurisdictional amount, and the plaintiff's claim is for less than the federal statutory jurisdictional amount

Most, courts do not allow the defendant to remove the case to federal court.

Special appearance

Procedure by which a defendant appears before a court for the specific purpose of challenging personal jurisdiction. The defendant is generally not considered to have consented to jurisdiction by making the special appearance, as long as personal jurisdiction is contested in the defendant's initial pleading.

interlocutory appeals as of right and as of discretion

Right: i) An order granting, modifying, refusing, or dissolving an injunction; ii) An order appointing or refusing to appoint a receiver; and iii) A decree determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. Permissive: i) class action certification denial or approval (filed within 14 days)

If removal is sought on the basis of federal question jurisdiction, and the federal question claims in the state action are joined with claims that are not independently removable, then the entire case may be removed.

The district court must then sever and remand to the state court any claims in which state law predominates.

if a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent or 90 days if defendant is foreign to US

This is an incentive to waive service, because the normal time period in which an answer must be served is 21 days after service of process.

Supplemental jurisdiction does not apply to defendants sought to be joined under the permissive joinder rule in a case based exclusively on diversity jurisdiction in which exercising jurisdiction would destroy diversity.

Thus, if the claims are made solely on the basis of diversity jurisdiction, then there must be complete diversity between the plaintiffs and the joined defendants, and the claims against each defendant must satisfy the amount-in-controversy requirement.

use of offensive collateral estoppel (issue preclusion)

Trial courts have "broad discretion" to determine whether offensive collateral estoppel should be applied. If a plaintiff could easily have joined in the earlier action or offensive estoppel is found to be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.

A court may, on motion, grant a new trial either on all issues or with respect to only certain issues or parties.

True

A default judgment cannot have an issue preclusion effect.

True

Although the defense of improper venue may be raised in a pre-answer motion under Rule 12(b)(3), it may be raised in the answer if such a motion is not filed.

True

Even if a defendant had responded to the complaint through a motion to dismiss, the plaintiff can still voluntarily dismiss the action without court approval or the defendant's agreement as long as the defendant had not filed an answer or a summary judgment motion at the time that the plaintiff filed the notice of dismissal.

True

If a default judgment has been entered against a defendant in an action in one state, and the plaintiff sues to enforce the judgment in another state, then the defendant may collaterally attack the judgment on the basis of lack of personal jurisdiction. If, however, the defendant had both notice and an opportunity to be heard, then a collateral attack on the judgment is not permitted under the doctrine of res judicata

True

If removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed. There is no similar requirement for removal based on federal question jurisdiction.

True

If the defendants are served at different times and a later-served defendant files a notice of removal, then any earlier-served defendant may join in the removal even though that defendant did not previously initiate or consent to removal.

True

In a case that is removed from state court, venue is proper in the federal district court in the district where the state action was pending. It is immaterial that venue would not have been proper under the general venue rule if the action had been brought initially in that district.

True

Removal is permitted when a party who prevents diversity jurisdiction is dismissed from an action

True

The parties may not manufacture diversity jurisdiction by failing to join a nondiverse indispensable party.

True

Under Rule 20 (permissive joinder), the addition of another party that satisfies the common-nucleus-of-operative-facts rule for supplemental jurisdiction cannot result in a violation of the requirement for complete diversity of citizenship.

True

When a party has failed to plead or otherwise defend an action, and that failure is shown by affidavit or otherwise, the court clerk must enter the party's default. Once a default is entered against a party, the plaintiff may seek a default judgment. If the relief sought is a sum certain or an amount that can be made certain by computation, the default judgment can generally be entered by the court clerk on the plaintiff's request, accompanied by an affidavit showing the amount due. Otherwise, the plaintiff must apply to the court for a default judgment.

True

specific jurisdiction

When a cause of action arises out of or closely relates to a defendant's contact with the forum state, jurisdiction may be warranted even if that contact is the defendant's only contact with the forum state.

general jurisdiction

When a cause of action does not arise out of or relate to the defendant's contacts with the forum, jurisdiction is warranted only when the defendant is "at home" in the forum state.

It is generally accepted that merely having a website does not subject a defendant to process everywhere that the site can be viewed.

Zippo standard: Merely making a website accessible to the public and posting information is generally considered passive on the sliding scale and should not result in personal jurisdiction. Websites that are integral to a defendant's business, however, are on the other end of the sliding scale. When a website's purpose is to assist in conducting direct business transactions, courts are more likely to find minimum contacts with a state and assert personal jurisdiction.

Collateral-Order Doctrine

a court of appeals has discretion to hear and rule on a district court order if it "1) conclusively determines the disputed question, 2) resolves an important issue that is completely separate from the merits of the action , and 3) is effectively unreviewable on appeal from a final judgment."

Final Judgment Rule

a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.

Bulge provision

a federal court has personal jurisdiction over a party who is served within a U.S. judicial district and not more than 100 miles from where the summons is issued. Applies only to third party defendants and required joinder

claim preclusion (res judicata)

a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action. Federal courts apply a transactional approach under which they bar a subsequent claim with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. Note: For claim preclusion to apply, the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action.

Intervention as of Right

a nonparty has the right to intervene in an action when a federal statute confers the right, and the nonparty timely moves to intervene. Additionally, under Rule 24(a)(2), upon a timely motion, a nonparty has the right to intervene when: i) The nonparty has an interest in the property or transaction that is the subject matter of the action; ii) The disposition of the action may, as a practical matter, impair the nonparty's interest; and iii) The nonparty's interest is not adequately represented by existing parties.

Amendment by right

a party may amend a pleading once as of right within 21 days if no responsive pleading is required, or, if a responsive pleading is required, within 21 days of service of the responsive pleading or within 21 days of being served with a motion under Rule 12(b), whichever is earlier. Thus, a plaintiff may amend his complaint even after being served with an answer (up to 21 days), but he is also limited to 21 days to amend after being served with a Rule 12(b) motion.

Compulsory Joinder

a person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction or destroy venue must be joined as a party if: i) Complete relief cannot be provided to existing parties in the absence of that person; or ii) Disposition in the absence of that person may impair the person's ability to protect his interest; or iii) The absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations. A necessary party is therefore a person whose participation in the lawsuit is necessary for a just adjudication.

Examples of specific areas of law that have been held to be substantive rather than procedural include:

a. Elements of a claim or defense b. Statutes of limitations and tolling provisions c. Burden of proof

Standards of Review on Appeal

a. Review of a district court's factual findings (includes damages) - clearly erroneous b. Review of legal rulings (applicable law) - de novo c. Review of discretionary rulings (such as the admissibility of evidence, sanctions for violation of discovery rules, or the granting or denial of a motion)—Abuse of discretion

jury trial is only allowed in

an action at law (e.g., an action for damages) is tried on demand to a jury, but an action in equity (e.g., an action for injunction) is not. If an action involves both legal and equitable claims, then the jury normally determines the legal claims first, and the court then determines the equitable claims, but the court is bound by the jury's findings on the legal claims.

Long-arm statutes due process requirements

due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice. NEED (1) MINIMUM CONTACTS; AND (2) PURPOSEFUL AVAILMENT of jurisdiction's benefits and laws: defendant's contacts with the forum state must be purposeful and substantial, such that the defendant should reasonably anticipate (foresee) being taken to court there)

An unincorporated association, such as a partnership, is considered a citizen of . . .

each state in which each of its members is domiciled.

Venue is proper in only one of the following judicial districts:

i) A judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or ii) A judicial district in which a "substantial part of the events or omissions" on which the claim is based occurred, or where a "substantial part of the property" that is the subject of the action is located.

Unless the parties agree to the deposition, leave of the court must be obtained to:

i) Exceed the 10-deposition limitation; ii) Depose a witness a second time; or iii) Depose a person before the deposing party has complied with its initial disclosure requirements under Rule 26(a).

A plaintiff seeking a preliminary injunction must establish that:

i) He is likely to succeed on the merits; ii) He is likely to suffer irreparable harm in the absence of relief; iii) The balance of equities is in his favor; and iv) The injunction is in the best interest of the public.

A plaintiff or defendant sought to be joined must also meet the requirements of federal subject matter jurisdiction.

i) Joinder of defendants Supplemental jurisdiction does not apply to defendants sought to be joined under the permissive joinder rule in a case based exclusively on diversity jurisdiction in which exercising jurisdiction would destroy diversity. Thus, if the claims are made solely on the basis of diversity jurisdiction, then there must be complete diversity between the plaintiffs and the defendants, and each claim must exceed the jurisdictional amount in controversy of $75,000. ii) Joinder of plaintiffs If multiple plaintiffs, however, join together, then supplemental jurisdiction can exist for a claim that does not meet the statutory jurisdictional amount, provided the parties still meet the requirement of complete diversity and one party meets the jurisdictional amount in controversy of $75,000.

Service on individuals can be made by

i) Personally serving the summons and complaint on the defendant; ii) Leaving the summons and complaint at the defendant's usual place of abode with a person of suitable age and discretion who resides there; or iii) Delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.

A federal court with subject matter jurisdiction is required to adjudicate the controversy despite the pendency of a similar action in a state court. However, it may abstain from hearing a case or stay the matter pending the outcome of the state court action under the following limited circumstances:

i) Resolution of a state law issue by the state court would eliminate the need for the federal court to decide a federal constitutional issue ii) Avoidance of federal involvement with a complex state regulatory scheme or matter of great importance to the state iii) The state action involves punishment of an individual for criminal activity or for contempt of court, or the imposition of a civil fine, and the federal court is asked to enjoin such activity iv) Parallel proceedings that go beyond mere waste of judicial resources, such as when there is a federal policy of unitary adjudication of the issues

The Class Action Fairness Act of 2005

i) The class action involves at least 100 members; ii) The amount in controversy exceeds the sum or value of $5,000,000 iii) only need minimal diversity note: does not apply to derivative actions of shareholders or securities actions

A remand order is generally not reviewable on appeal except for

i) statutory exception for an order remanding a civil rights case removed; or ii) A remand order is also appealable in a class action, if the application for review is made to the court of appeals not more than ten days after the entry of the order.

Indispensable parties: when joinder is not feasible

if a necessary party cannot be joined because of jurisdictional or venue concerns, then the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or be dismissed. Among the factors for the court to consider are: i) The extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties; ii) The extent to which any prejudice could be reduced or avoided by protective provisions in the judgment, shaping the relief, or other measures; iii) Whether a judgment rendered in the person's absence would be adequate; and iv) Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

relation back-new party

if the amendment changes the party or the naming of the party against whom a claim is asserted, then it will relate back to the date of the original pleading if: i) It asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading; ii) Within 90 days after the filing of the original complaint, the party to be brought in by amendment receives notice of the action such that he will not be prejudiced in defending on the merits; and iii) The party to be brought in by amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party's identity.

TRO can last

no longer than 14 days unless good cause exists or by consent of the adversary.

Permissive Joinder

persons may join in one action as plaintiffs if: i) They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and ii) Any question of law or fact common to all plaintiffs will arise in the action. persons may be joined in one action as defendants if: i) Any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and ii) A question of law or fact common to all defendants will arise in the action.

Issue Preclusion

precludes the re-litigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action. Thus, "offensive" use of collateral estoppel is permitted. Requirements: Same issue; Actually litigated; Final, valid judgment; and issue was essential to judgment

Although a federal court is permitted condition new trial on . . .

remittitur (a reduction in the damages awarded by the jury) as the means by which the plaintiff can avoid a new trial, but a federal court is not permitted to offer additur (an increase in the amount of damages awarded by the jury) as the means by which the defendant can avoid a new trial.

The verdict must be returned by a jury of at least . . .

six members unless the parties stipulate otherwise.

When a federal court has jurisdiction over a claim arising under federal law, the court may exercise supplemental jurisdiction over a state-law claim . . .

that arises out of a "common nucleus of operative fact," even though the federal court would not otherwise have subject-matter jurisdiction over the state-law claim.

Permissive Intervention

the court may allow intervention, upon timely motion, when either: i) The movant has a conditional right to intervene under a federal statute; or ii) The movant's claim or defense and the original action share a common question of law or fact.

When ruling on a motion for judgment as a matter of law . . .

the court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party. It may not consider the credibility of witnesses or evaluate the weight of the evidence, and it must disregard all evidence favorable to the moving party that the jury is not required to believe.

In an action filed under the Federal Tort Claims Act (permits private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States), venue is proper either in . . .

the judicial district where the plaintiff resides or in the judicial district where the act or omission occurred.

whenever a time period is stated in days,

the period excludes the day of the event that triggers the period, but includes every day following, including intervening Saturdays, Sundays, and legal holidays. If the last day of the period is a Saturday, Sunday, or legal holiday, then the period is extended to include the next non-weekend or non-holiday day.

Rule 25 allows for the substitution of a party due to death or incompetence and in the case of diversity . . .

the substituted party does not have to satisfy the diversity requirement. The original party's citizenship remains intact and controlling.

Timing for third party complaint

the third-party plaintiff must obtain the court's permission if he files more than 14 days after service of his original answer.

if a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States,

then the court must impose on the defendant the expenses that are incurred in making service and the reasonable expenses, including attorney's fees, of any motion required to collect such service expenses.

If, after removal, the plaintiff seeks to join a defendant who would destroy the federal court's diversity jurisdiction, then the court has discretion

to deny the joinder and proceed with the action in federal court, or to permit the joinder and remand the action to state court.

The jury verdict must be . . .

unanimous unless the parties stipulate otherwise. EVEN IF THERE IS A STATUTE THAT DOES NOT REQUIRE UNANIMITY

State and federal courts have concurrent jurisdiction of federal question claims, except when Congress expressly provides that the jurisdiction of the federal courts is exclusive, as it has with cases . . .

under the Securities and Exchange Act of 1934, patent trademark, and copyright cases, and bankruptcy proceedings.

There are limited circumstances when federal intervention is appropriate. If a plaintiff can demonstrate . . .

unusual circumstances calling for federal equitable relief, significant and dire irreparable injury, or prosecutorial bad faith, then a federal court may intercede.