Civil Procedure

  1. What are the old forms of action?
    • Replevin - recovery of goods wrongfully taken.
    • Assumpsit - damages for breach of contract.
    • Account - State how much money was involved (i.e., show us your books).
    • Covenant - Agreement to refrain from a specific action.
    • Case - Negligence, indirect damage.
    • Trespass types - Direct harm (3 types).
    • Trover - recoup wrongful taking of private property (conversion).
    • Debt -
    • Detinue - Wrongful detention of goods (later became trover).
  2. Which remedies were available in the Chancery Court (equity)?
    • Injunction
    • Decrees

    Note: Used Bills of Equity to bring complaint.
  3. Which remedies were available in the Law Court (Common Pleas, Kings Court, Exchequer)?
    Money damages.

    Note: Claims brought using the forms of action.
  4. What is the four-part test for determining if a preliminary injunction should be issued?
    • Public Interest
    • Irrepable Harm
    • Success on Merits
    • Substantial Harm
  5. What is a merged judgment?
    When the claim is extinguished and replaced by the judgment.
  6. What are the elements for asserting res judicata?
    • Identical parties.
    • Final judgment on the merits from a court of competent jurisdiction.
    • Identical cause of action (claim).
    • Note: post-Bernhard - Party against whom res judicata is asserted must have been a party to the earlier suit.
  7. What are the elements of collateral estoppel?
    • Same issue - Issue in the second case must be the same as the issue in the first.
    • Necessary to judgment - Usually said that collateral estoppel will not apply unless the decision on the issue in the prior action was necessary to the court's judgment.
    • Litigated - Issue must have been actually litigated.
    • Actually Decided - Issue must have been actually decided.
  8. When can you assert defensive collateral estoppel?
    • Final judgment on the merits from a court of competent jurisdiction.
    • Identical cause of action.
    • Party against whom res judicata is asserted must have been a party to the earlier suit.
  9. What is this an example of:

    P --> D (plaintiff loses on issue A)
    P --> D2 (new defendant attempts to bar plaintiff from relitigating issue A)
    Defensive collateral estoppel.
  10. What is this an example of:

    P1 --> D (defendant loses on Issue A)
    P2 --> D (new plaintiff invokes collateral estoppel to establish issue A in her suit against D)
    Offensive collateral estoppel.
  11. When may offensive collateral estoppel be asserted?
    • Identity of the issue was decided in a prior action.
    • Must have been a full and fair opportunity to contest the issue.
  12. What are the factors when determining whether a party had a full and fair opportunity to contest the issue?
    • Indications of a compromised verdict.
    • Differences in applicable law.
    • Extent of litigation.
    • Availability of new evidence.
    • Size of the claim.
    • Competence of lawyers.
    • Use of initiative (i.e., did the lawyers in the prior case litigate vigorously).
    • Form of the prior litigation.
    • Foreseeability of future litigation.
  13. What are the factors that district courts should consider re: whether to stay or dismiss a parallel federal action?
    • Inconvenience of the federal forum.
    • Desirability of avoiding piecemeal litigation.
    • Order in which each forum obtained jurisdiction (not measured by which was filed first, but how much progress has been made in the two actions).
  14. What must you have to make a trover claim?
    Actual possession or a right to present possession.
  15. What were the trover cases?
    • Gordon v Harper
    • Swift v. Moseley
  16. What can an action in equity not do?
    Void an action at law.
  17. What are the requirements for diversity jurisdiction where one party is a corporation and the other is a partnership?
    • Party being sued must not share citizenship with the opposing parties.
    • For corporation, citizenship is determined by its place of incorporation or principal place of business (nerve center).
    • Partnership's citizenship is determined by looking at citizenship of each of its members.
  18. True or false: judgment on the sufficiency of the evidence is enough to support a claim of res judicata.
  19. What are the three criteria for asserting defensive collateral estoppel?
    • Final judgment on the merits from a court of competent jurisdiction.
    • Issue arises from same nucleous of operative fact.
    • Party against whom res judicata is asserted must have been a party to the earlier suit.
  20. Why did the Court hold that a federal court had jurisdiction over an unfair business practices claim re: the play "The Evil Hour?"
    One of the original claims was for copyright infringement, which is a federal issue. Though the claim was dismissed, it was not unsubstantial at the outset of the case.
  21. When can a federal court adjudicate claims that are not federal in nature?
    When they are brought in conjunction with a federal claim that is not plainly unsubstantial.
  22. What is the chain reaction standard set out in Scott?
    A defendant can be liable for trespass when the injuries are the result of a chain reaction put in motion by the defendant.
  23. A chancery court could not nullify a contract, but it could do something. What could it do?
    Imprison the petulant party until they acquiesced and "voluntarily" nullified the contract.
  24. Why are federal courts without the power to issue injunctions in equity actions?
    Federal district courts do not have the power to issue preliminary injunctions, because that is not a remedy that has historically been available from a court of equity.
  25. If parties to a suit are not diverse, up to what point can diversity jurisdiction be challenged?
    Up to final judgment.
  26. A federal court of appeals sitting in diversity jurisdiction may be subject to which motion when it enters a judgment interpreting state law in a way that is clearly wrong?
    Rule 60(b)(6)
  27. What is the key question re: whether collateral estoppel is available?
    Was there a full and fair opportunity to contest the issue?
  28. Why is offensive collateral estoppel unfair to defendants?
    • First case may create low incentive for defendant to argue vigorously, yet he'd be bound by that outcome for all subsequent cases (which could be for much more $).
    • If judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant.
    • Second action could afford more procedural opportunities than were unavailable in the first action, which could change the outcome.
  29. What is the bailee possession standard set out in the first Swift case?
    If bailee, by his wrongful act, forfeits his right of possession, than the bailor may then have his standing to sue restored.
  30. Which of the Federal Rules of Civil Procedure sets out that there is only one form of action - the civil action?
    Rule 2
  31. Can a state court's decision re: jurisdiction be collaterally attacked?
    No, a state court's decision about its own jurisdiction can be challenged directly, but is not subject to collateral attack (full faith and credit to decisions made in other states).
  32. What are the two elements of trover?
    Right to property and right to possess.
  33. When is the diversity of the parties to a suit determined?
    At time of filing.
  34. Which "form of action" no longer required 'willfulness' after Leame v. Bray?
    Trespass on the case
  35. When is collaterally attack by way of violating a court order allowed?
    When the court order is transparently invalid, it can be collaterally attacked via violating the order.
  36. Under the Rules Enabling Act, what types of rules could not be promulgated?
    Rules that abridged, modified, or enlarged substantive right or that abridged a right to a jury trial.
  37. When does federal common law displace state common law?
    • (“Upchuck”)
    • Unique Federal Interest
    • Commercial paper
    • U.S. Contracts
    • Conflict between fed laws or interest.
  38. What are the reasons for giving a writ of mandamus?
    • (“POPO”)
    • Party has no other means of obtaining relief
    • Order clearly erroneous
    • Petitioner will be damaged or prejudiced in way not correctable uponappeal
    • Order is often repeated or manifests disregard for federal rules
  39. What are the exceptions to diversity jurisdiction?
    • (“Please call a detective”)
    • Probate
    • Custody
    • Alimony
    • Divorce
  40. What is Ginsburg's dissent in Dataflux?
    • “Have more FLUX in Dataflux”
    • Want Full and fair opportunity
    • Equitable jurisprudence
    • Adjudication
  41. What are the 60(b) motions?
    • (“ME for VEG”)
    • Mistake
    • New Evidence
    • Fraud
    • Void
    • Prior judgment reversed so not Equitable
    • Exceptional circumstances to avoid Grave rise to liability
  42. What are the types of personal jurisdiction?
    • (“People Really Question Lawyers”)
    • In Personam
    • In REM
    • Quasi in rem (value of item)
    • Long arm statute
  43. When are "final judgments on the merits" binding for purposes of collateral estoppel?
    • (“FOR PA”)
    • Formulation of issues of law and fact
    • Other procedural elements
    • Rendition of final decision
    • Present argument and rebut legal argument
    • Adequate notice

    Note: This is the evaluation used for decisions by administrative bodies (e.g., town council, planning boards, etc.)
  44. What is the mutuality rule?
    Neither party could use a prior judgment as an estoppel against the other unless both parties were bound by the judgment.

    (Overturned by Parklane)
  45. What are the considerations re: whether offensive collateral estoppel should be refused as unfair to the defendant?
    • D - Low or nominal Damages.
    • I - Defendant had Incentive to litigate the issue the first time?
    • P - Could Plaintiff have joined in first suit, and how many potential plaintiffs are waiting to do the same thing (i.e., effects on judicial efficiency)?
    • P - Defendant lacked Procedural tools in the previous case that would be available in the subsequent case.
    • I - Judgment on which collateral estoppel is based is Inconsistent with one or more previous judgments in favor of the defendant.
  46. What are the factors for the minimum contacts test?
    • Systemic activities, OR
    • Activity gives rise to the liability, OR.
    • Continuous activities.

    • Note: Looks at:
    • Quality and nature of the activity.
    • Ties among defendant, state and litigation.
  47. Where can an action be litigated?
    • Where accident/tort happened (assuming minimum contacts).
    • Wherever defendant lives.
    • Wherever defendant was effectively served.
  48. Where can an "alien" be sued?
    In any district.
  49. How is domicile established?
    Physical presence and no immediate plan to leave.
  50. When does a case "arise under federal law?"
    When the vindication of a right under state law has, as a necessary element, some substantial, disputed question of federal law.

    Note: by reference to the "well-pleaded complaint" (from Franchise Tax Board).
  51. When did Congress eliminate the amount-in-controversy requirement for federal question cases?
  52. When can a defendant not remove a case from state to federal court?
    Action is not removable by defendant in forum state, even if diversity exists under § 1332.

    E.g., plaintiff is from NH but comes to Maine to sue the plaintiff in his home state for $100k. Defendant can't then remove to federal district court, because he has the home-court 'advantage.'
  53. What is a well-pleaded complaint?
    • Real
    • Case OR
    • Controversy
  54. When can supplemental jurisdiction be utilized?
    • (“More JIF please)
    • J - For supplemental Jurisdiction
    • I - One claim Independently satisfies jurisdictional requirement
    • F - Common nucleus of operative Fact
  55. What are the Gibbs factors (codified in § 1367(c)), for when pendent state-law claims would be appropriate to sever?
    • Federal claim is dismissed before trial.
    • It appears that the state issues substantially predominate (e.g., proof, scope of the issues raised, or comprehensiveness of the remedy sought).
    • Separation of the state and federal claims is justified by "reasons independent of jurisdictional considerations, such as the likelihood of jury confusion."
    • Note: Factors were illustrative, and were not meant to be exhaustive.
  56. District court may decline to exercise supplemental jurisdiction when:
    • S - State claim "substantially predominates" in the case.
    • E - Judicial Economy.
    • C - Convenience and fairness to litigants.
    • O - In Other "exceptional circumstances.
    • N - Claim raises Novel or complex issues of state law.
    • D - Federal court has Dismissed all claims over which it has original jurisdiction.
  57. What are the three major federal laws regarding applicable law?
    • Rules of Decision Act (RDA) [from Judiciary Act of 1789] - The laws of the several states [except where the constitution or treatises of the U.S. or Acts of Congress otherwise require or provide], shall be regarded as rules of decision in trials at common law in the courts of the U.S. in cases where they apply.
    • Conformity Act of 1872 - Federal district court practices should conform, as near as possible, to those in similar cases at the State court level, for the state in which the district court is located.
    • Rules Enabling Act of 1934 - Supreme Court sets standards for federal courts.
  58. What does the Rules Enabling Act allow the Supreme Court to do?
    Set procedural rules, so long as they do not abridge, enlarge or modify any substantive right.
  59. What are the trespass cases?
    • Scott v. Shepard (squib case) - trespass for result of chain reaction.
    • Day v. Edwards (crash) - Should have been trespass because injuries were immediate.
    • Leame v. Bray (crash - jumped from vehicle) - Negligence so charge should have been trespass on the case.
    • Williams v. Holland (racing crash) - Immediate injuries from negligence, so trespass on the case was okay.
  60. What are the law and equity cases?
    • J.R. v. M.P. (uncollectible debts) - Imprisoned defendant.
    • Courtney v. Glanville (fraudulent jewel) - Imprisonment no longer allowed for a civil case.
  61. Which case dealt with a temporary restraining order (TRO)?
    CompuServe, Inc. v. Cyber Promotions, Inc. - (spam case).
  62. Which case dealt with "the Evil Hour"?
    Hurn v. Oursler
  63. What did Bell v. Hood address?
    Dismissal for failure to state a claim should be decided after a court accepts jurisdiction.
  64. What did Bivens v. Six Unknown Named Agents of the FBN hold?
    Constitutional rights give rise to civil damages in federal court, because the claim arises under the federal constitution.
  65. What was the holding in Grupo Mexicano de Desarrollo v. Alliance Bond Fund?
    Majority (Scalia): District Court did nothave the power to issue a preliminary injunction preventing Grupo from transferring assets, because there had been no judgment on the case, and doing so was not an equity power in 1789.

    Dissent (Ginsburg): Equity courts were flexible/evolutionary, even back then, and should be allowed to be flexible now to avoid injustice in the end (esp. since a court would have immediately issued the injunction when parties went to trial).
  66. Clancy v. McBride, which said car accident claims could be split between car and person, was implicitly overturned by which case?
    Mason v. Parker.
  67. What are the two cases that deal with subrogated insurers?
    Zurich Insurance Co. v. Amcast Industrial Corp - Held that res judicata couldn't stop an insurer from going after a separate claim from the same accident when the insured had already recovered.

    Allstate Ins. Co. v. Hechinger Co. (defective lamp case) - Insurer could aggregate claims, because they'd become a party in interest via the subrogation.
  68. Why could the plaintiff, in Keidatz v. Albany, bring a third actiong against the fraudulent house developers?
    The third action was for damages for fraud, but the previously dismissed actions were regarding rescission of the contract.
  69. What the case with the old lady whose executor was 'given' her money inter vivos?
    Bernhard v. Bank of America (collateral estoppel case)
  70. Was was Parklane Hosiery v. Shore about, and what was its holding?
    • False proxy statement.
    • Held that Parklane was offensively collaterally estopped from relitigating whether the proxy statement was false.
  71. Which case dealt with 'final decisions' of administrative bodies?
    North Berwick v. Jones
  72. What the heck was Chicot County Drainage District v. Baxter State Bank about?
    • About the redemption of municipal bonds after an order for their readjustment was found to be unconstitutional.
    • Held that since bondholders failed to challenge the jurisdiction of the court that issued the readjustment order that was later deemed to be unconstitutional, that order, res judicata applied and the original order could not be collaterally attacked to make the bonds redeemable.
  73. What's the name of the Nebraska/Missouri property dispute re: collateral attack?
    Durfee v. Duke
  74. What's the name of the Monet painting case?
    DeWeerth v. Baldinger
  75. Which two cases set out the "minimum contacts" standard?
    • International Shoe Co. v. Washington (unemployment insurance fees assessment) - in personam
    • Shaffer et al v. Heitner (Greyhound shareholder derivative suit) - in rem
  76. Which douche dropped a sink and claimed $10k in damages?
    Deutsch v. Hewes Street Realty Corp

    Held that federal jurisdiction should not be dismissed re: the damages threshold unless there's a legal certainty that damages will not meet it.
  77. Which case mistook the amount at issue?
    Tongkook America, Inc. v. Shipton Sportswear Co.
  78. Which case is the labor dispute lost arm/diversity challenge case?
    Baker v. Keck
  79. Which case dealt with a residency mistake?
    Bissell v. Breakers-by-the-Sea

    U.S. v. British Virgin Islands case
  80. Which case set out the "nerve center" test?
    Hertz Corp. v. Friend

    (class action for wage and hour law violations case)
  81. Which case dealt with the citizenship of limited partners?
    C.T. Carden v. Arkoma Associates
  82. What is Grupo Dataflux v. Atlas Global Group about?
    Atlas had two Mexican partners at the time of filing, so case was dismissed right after a final decision was made but before it was announced, because there was no diversity at the time of filing. At the time of the motion to dismiss, however, the diversity issue had been cured. Majority (Scalia) held that allowing diversity jurisdiction to change after a case is filed would create uncertainty and expensive litigation that dealt with jurisdiction rather than the merits of the case.
  83. What did Franchise Tax Board hold?
    Held that the federal act (ERISA) did not create a federal cause of action for parties other than the trustees and beneficiaries of the plan, so the state as plaintiff had no federal cause of action.

    Note: Evaluation of a claim "arising under" federal law must be determined by a "well-pleaded complaint."
  84. Which case held that a well-pleaded complaint that doesn't include a federal-based claim can still be tried in federal court if the court decides that the state law claim necessarily raises a stated federal issue?
    Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing

    (IRS certified mail notice of property seizure case)
  85. What are the major points of Breyer's Empire Healthchoice dissent?
    • Involves:
    • Government-financed insurance policy.
    • - Government collected the premiums and paid the benefits.
    • - Fund belonged to the government, not the carrier.
    • Government employees.
    • Private carrier's only function was to administer the benefits plan in exchange for a fixed service charge.
    • Real party in interest is the U.S.

    • Needs:
    • Consistent enforcement and uniform interpretation to ensure fair and equal treatment of federal employees, regardless of where they are stationed.

    Fed courts have original jurisdiction in civil action cases against the U.S.
  86. What was United Mineworkers v. Gibbs about?
    Plaintiff lost federal claim re: the Labor Management Relations Act, but state claims could still be decided by the federal courts, since they shared a common nucleus of operative fact.

    Set out reasons that state claims could be remanded, but did not apply to this case.
  87. What are § 1331 and § 1332 for?
    • § 1331 - Federal question
    • § 1332 - Diversity jurisdiction
  88. What are the applicable law cases (in date order)?
    Sure, every child goes bonkers.

    • Swift v. Tyson - federal common law (overruled by Erie)
    • Erie R.R. v. Tompkins - Apply state law when sitting in diversity.
    • Clearfield Trust v. U.S. - Use federal law for U.S. government's unique interests.
    • Guaranty Trust Co. of NY v. NY - outcome-determinative test.
    • Boyle v. United Technologies - Federal defense can be used against a state tort claim, when sitting in diversity.
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Civil Procedure
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