Federal Civil Procedure Mnemonics

FEDERAL CIVIL PROCEDURE MNEMONICS

1) “Arising under” jurisdiction, a.k.a. “Federal Question” jurisdiction is found in a CAT: C – The U.S. CONSTITUTION A – ACTS of Congress, or T – TREATIES

2) SCRAM if you don’t have a justiciable claim: S – STANDING C – CASE or controversy R – RIPENESS A – ABSTENTION M – MOOTNESS

3) Diversity and supplemental jurisdiction require federal courts to apply state procedural law and not Fed. R. Civ. P. for PIPS: P – PRIVILEGES I – INCOMPETENCY of witnesses P – PRESUMPTIONS and inferences S – STATUTE of limitations

4) Look at VCR to see the exceptions for the mootness doctrine: V – A VOLUNTARY change in position, but not permanently C – CLASS action R – Capable of REPETITION doctrine

5) SAD-J has the key to the door of the Federal Court house: S – SUPPLEMENTAL jurisdiction A – ARISING under jurisdiction, a/k/a a federal question (CAT) D – DIVIERSITY jurisdiction J – JUSTICIABILE claims

6) The discretionary reasons a federal court would decline supplemental jurisdiction to hear a state claim related to the pending federal claim are COP: C – The state claim presents COMPLEX or novel issues; O – The court dismissed the claim on which it had subject matter jurisdiction ON THE merits; or P – Where state claims PREDOMINATE over the federal claim

7) To remove a nonfederal claim from state to federal court based on diversity jurisdiction, defendant must be shown to be a STUD2: S – The claim exceeds SEVENTY-FIVE THOUSAND DOLLARS T – The petition & attachments are filed with the federal court within THIRTY DAYS of receiving a document indicating the claim is removable, U – Under the rule of UNANIMITY, all defendants must sign the removal petition, D – No defendant can be DOMICILED in the removal state, and D – There is complete DIVERSITY of citizen between plaintiffs and defendants

JURISDICTION OVER PERSONS AND PROPERTY IN FEDERAL COURTS

1) To obtain valid procedural jurisdiction, the 14th Amendment Due Process Clause requires that the defendant must have MOP: M – Some MINIMUM contact with the forum state O – An OPPORTUNITY to be heard in the suit P – Been PROPERLY served with process

2) For the court to find sufficient minimum contacts over a defendant, the defendant must CHILI: C – D CONSENTS to jurisdiction in the forum state; H – The state where a corporation or individual is at HOME, e.g. its corporate headquarters is in that state or where an individual is domiciled; I – The state where a corporate defendant was INCORPORATED; L – D is a non-domiciliary but the court has LONG-ARM jurisdiction; or I – D is a non-domiciliary served IN-STATE

3) Longarm jurisdiction, a/k/a “specific jurisdiction,” arises from a RIOT in that state: R – The defendant owns, uses, or possesses REALTY in the state I – The defendant’s tortious conduct occurred IN THAT STATE causing the plaintiff’s personal injury, property damage, or economic injury O – The defendant’s tortious conduct occurred OUTSIDE the state, causing injury in the state where the plaintiff’s claim was commenced, but the defendant must have “targeted” that state T – The defendant TRANSACTED BUSINESS in that state

4) There must also exist some other 3-S conduct involving an interstate or international defective product causing injury within a state: S – SOLICIATION of business in the state S – SERVICES performed in the state S – SALES consummated in the state, i.e., did the defendant “target” the state

5) In a federal forum non conveniens motion, the issue is whether the case should be tried HERE or in another forum: H – HARDSHIP on D and the courts E – Location of EVIDENCE R – RESIDENCE of parties E – Location of EVENT

6) In a federal court, even if a defendant has no minimum contacts with the state a defendant may nevertheless consent to jurisdiction by SAM: S – STIPULATING to jurisdiction in open court, or in an earlier signed writing, pleading, contract, or letter A – Serving an ANSWER, but failing to include a MOP objection as an affirmative defense, unless the defendant corrects the omission and amends the answer within 21 days “as of course”. Rule 12(h)(1)(B)(ii). M – Making any MOTION TO DISMISS prior to service of the D’s answer and failing to include the MOP jurisdictional objection and in that motion, otherwise that objection is waived

7) Under the federal rules, a defendant must timely raise VIP in a motion to dismiss, if such a motion is made. If not, raise it in the answer, or VIP is waived: V – Improper VENUE I – INSUFFICIENT service or process P – Lack of PERSONAL jurisdiction. Rule 12(h)(1)

8) AN can serve a subpoena or a summons process: An ADULT NONPARTY Rule 4(c)(2).

9) SWAPS is proper service in federal courts under Fed Rule 4 S – Leaving process at the defendant’s dwelling place or usual place of abode with a SAD person of “suitable” age and discretion who resides there, W – Where a defendant agrees in writing to WAIVE formal service of process, A – Delivering process to an AGENT authorized by law or by appointment to receive it, or P – Delivering it PERSONALLY to the defendant S – Service according to the STATE LAW where the federal court sits or the state where the service was made

10) Service on a corporation must be made on a GO A.M. person: G – GENERAL AGENT. Rule 4(h); O – OFFICER (President, VP, etc.);

A. – AUTHORIZED AGENT TO RECEIVE PROCESS, (expressly, impliedly or by estoppel); M. – MANAGING AGENT

11) There are just three ways for a defendant to formally “appear” in a federal court an action (MAN): M – By making any pre-answer MOTION, which extends the D’s time to answer A – By serving an ANSWER to P’s complaint N – By serving a NOTICE of appearance (“entry of appearance”)

12) A federal court default judgment may be vacated “for good cause”, which requires the D to submit a REAM of papers: RE – REASONABLE EXCUSE why the D defaulted AM – AFFADAVIT OF MERIT on the D’s viable defense

STATUTE OF LIMITATIONS

1) If the applicable SOL has expired, then the P should consider tolling and extending provisions – CAD’S LEAP: C – Time-barred, related COUNTER-CLAIM (Federal Rules also) A – AMENDING a pleading to add a time-barred claim D – DISABILITY of the P S – SOLDIERS and Sailors Civil Relief Act

L – The parties LENGTHENED the SOL E – EQUITABLE estoppel A – Written ACKNOWLEDGEMENT of an old debt (Federal Rules also) P – PART-PAYMENT of an old debt

2) Parties united in interest frequently involve the vicarious liability of POPE parties: P – PARTNERS who are jointly and severally liable for each other’s torts committed in the scope of the partnership O – OWNER and driver of a motor vehicle used with the owner’s permission, except when the owner leases the motor vehicle to the driver, in which case vicarious liability is not imputed to the lessor. Vicarious liability is also imputed onto the joint owners of realty (TICs, JTs, and TEs). P – PRINCIPAL and agent E – EMPLOYER and employee, under the doctrine of respondeat superior

3) Amending a federal pleading to add a time-barred related claim can be done with an ANT: A – It AROSE out of the same facts pleaded in the original complaint N – The original pleading gave NOTICE of the new claim T – The new claim was TIMELY when the original pleading was filed with the clerk of the federal court.

MOTION PRACTICE

1) There are 2 types of corrective motions – SS: S – A motion for a more definite STATEMENT in the pleading S – A motion to STRIKE irrelevant, prejudicial, or scandalous matter from a pleading Rule 12(f) and (e)

2) When thinking of summary judgment in a federal court, think of LIPS: L – The motion can be decided as a matter of LAW I – There are no material ISSUES of fact to be litigated P – The court can grant PARTIAL summary judgment S – The court can SEARCH the record, but only on issues raised in the motion papers

3) In a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, courts always cite FAT DRIP:

The complaint’s FACTUAL ALLEGATIONS are accepted as TRUE, and the court will DRAW all REASONABLE INFERENCES in the PLAINTIFF’S favor

4) SPARE RIBS is based on 9 grounds, which usually can be asserted in a motion Rule 12(c) on the pleadings and/or in the D’s answer as Rule 8(c) affirmative defenses. S – STATUTE of limitations P – PAYMENT A – ARBITRATION and award R – RELEASE E – Collateral ESTOPPEL

R – RES JUDICATA I – INFANCY or incompetency of the D B – P’s claim against D was discharged in BANKRUPTCY S – STATUTE of Frauds

PROVISIONAL REMEDIES

With the exception of Preliminary Injunction and T.R.O.’s (Rule 65), Rule 64 advises federal courts to look at state law for obtaining provisional remedies.

1) Most states have several types of provisional remedies – LIAR2S: L – LIS PENDENS (warns others not to buy property) I – Preliminary INJUNCTION A – ATTACHMENT (as security for payment) R – RECEIVER (who protects the property) R – REPLEVIN S – SEQUESTRATION

2) The notice of pendency is not a SLOB S – SHERIFF is not involved L – No court review of the P’s LIKELIHOOD of success on the merits O – No court ORDER is required B – No BOND has to be posted by the P

3) A Rule 65 federal preliminary injunction or T.R.O. will not be granted unless the P demonstrates by clear and convincing evidence PILE: P – Would the injunction serve the PUBLIC’S INTEREST L – LIKELIHOOD (a probability not certainty) of the P’s success I – IRREPARABLE injury is occurring or will occur to the P unless the preliminary injunction is granted E – EQUITIES, when balanced by the court, clearly tip in the P’s favor

Federal Rule 65(b) limits a T.R.O. not to exceed 14 days but for good cause it can be extended another 14 days. To get it ex parte, show “immediate and irreparable injury”

3) Before a federal court permits the use of any provisional remedy, it must ensure that due process is satisfied by a COP: C – Showing by CLEAR AND CONVINCING evidence that P is likely to succeed and is entitled to the provisional remedy requested because of extraordinary circumstances O – OPPORTUNITY to be heard P – An immediate POST-SEIZURE hearing must be held if LIAR was obtained ex parte (and 5 or 10 days is considered “immediate”)

DISCOVERY

1) In Federal Practice, use MR AID devices for pre-trial discovery: M – MENTAL and Physical Exam R – REQUESTS for Production

A – ADMISSIONS demand I – Written INTERROGATORIES D – DEPOSITIONS (a.k.a. EBTs – “examinations before trial”)

2) Protective orders seek to prevent unreasonable DEEP abuses of discovery procedures: D – DISADVANTAGE E – EMBARASSMENT E – EXPENSE outweighs its benefits (especially where there is economic disparity between the parties) P – PREJUDICE. Rule 26(c)

3) A court order is required to RAP3 at a DEPOSITION R – REFUSAL to comply w/ EBT Demand A – AFTER the court’s “bar date” closing pretrial further discovery in its “scheduling order”. Rule 16(b)(3)(A). A party must show the court that unusual or unanticipated circumstances occurred subsequent to the bar date and that prejudice would result if further discovery is not permitted P – PRISONERS P – A PREVISOUSLY deposed witness P – PRIOR to commencing an action in order to preserve evidence or to assist in bringing the action. Rule 30(a)(2)(A)(iii) & 26(d)

4) To determine if the requested discovery is PROPORTIONAL to the needs of the case under Rule 26 (b)(1) (12/1/15), check with a RA2BBI R – The parties’ RESOURCES A – A parties’ relative ACCESS to the relevant information A – The AMOUNT in controversy B – The BURDEN (expense) on a party B – The BENEFIT to be derived from the requested discovery I – Its IMPORTANCE in resolving the ISSUES of the claim.

5) A DRIPS are discovery sanctions: (Rule 26(g)) A –ATTORNEY’S FEES & punitive sanctions against non-disclosing party

D – DISMISSING the action or ordering a DEFAULT judgment R – RESOLVING issues against party I – An adverse INFERENCE jury charge P – PRECLUDING that party from offering evidence on certain issues S – STRIKING that party’s pleading or any part thereof

APPEALS

1) Interlocutory collateral orders can be immediately appealed if they have earned an LL.M. degree L – The court’s order is the LAST word on that issue L – Appellate review after final judgment will be too LATE M – The issue involved does not involve the MERITS of the case

2) “IF” – collateral estoppel is available in a federal court if issues are identical and the party against whom collateral estoppel is being asserted previously had a full and fair opportunity to litigate that issue: I – IDENTICAL ISSUES F – FULL AND FAIR OPPORTUNITY TO LITIGATE ISSUE

CLASS ACTIONS

1) To certify a class action in federal court (Rule 23(a)) think CAN’T 9 U.S.S. §§ 1 to16 C – COMMON QUESTIONS of law or fact A – ADEQUATE representation by the class rep. N – Class size so NUMEROUS ordinary joinder is impracticable T – Class rep’s claim is TYPICAL of all other claims

DIVERSITY JURISDICTION PROBLEM: #1 N, a state A citizen, and C, a state B citizen, sued M, a state C citizen, and X, a state D citizen, for $400,000 based on breach of a real property contract on state A reality.

QUERY: Is there diversity jurisdiction to enter a federal court?

ANSWER: YES, because the citizenship of every plaintiff differs from that of every defendant.

PROBLEM: #2 N, a state A citizen and C, a state B citizen, sue M, a state C citizen, and X, a state B citizen for tortuous interference with a contract alleging $500,000 in resulting damages.

QUERY: Is there “complete diversity”?

ANSWER: NO - because a plaintiff (C) and defendant (X) share the same citizenship.

If diversity jurisdiction did not initially exist, but within one year, all defendants (X) with the same citizenship as the plaintiff settle with the plaintiff, or the plaintiff (C) voluntarily withdraws the complaint against X, then the remaining diverse defendant (M) can immediately remove the action to the federal court (within 30 days). This one year statute of limitations for such removal eliminates removal from the state court on the eve of trial. 28 U.S.C. § 1446(b).

Absent bad faith by a party, a diversity case may not be removed more than one year after its commencement in state court.

PROBLEM: #3 Two state A citizens sue a state B citizen and a state C citizen for $750,000 in damages suffered in a vehicle collision.

QUERY: Is there complete diversity?

ANSWER: YES - because parties on one side of a lawsuit can share identical citizenships.

PROBLEM: #4 Can X, a citizen of state A, sue N, a state B citizen, in the federal court on N’s $67,000 bounced check that was dishonored by N’s bank last month.

ANSWER: NO - although complete diversity exists between the parties, it appears to a “legal certainty” that the claim is for less than the jurisdictional amount required for diversity jurisdiction. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).

PROBLEM: #5 P, a state A domicile, was “seriously” injured in state A, when hit by C Corp.’s van. C Corp. was incorporated in state B with its principal place of business in a state A city. Can P sue C Corp. for $400,000 in the federal district court of either state A or state B?

ANSWER: NO A corporation is deemed a citizen of both its state of incorporation (state B) and the state of its principal place of business (state A). Therefore, P cannot establish “complete diversity” in either state A or state B, and thus may not use the federal court for his state claim.

PROBLEM: #6 Can a state A citizen who is suing a state B citizen commence a diversity action in a state A federal district court?

ANSWER: YES, even though the underlining rationale of diversity is to avoid local prejudice in state courts against citizens from other states. Diversity exists even if the plaintiff brings the suit in a federal court in her home state, assuming there is MOP procedural jurisdiction over the state B defendant in state A.

PROBLEM: #7 If sued by a state B citizen in state A state court on a tort claim for $285,000, can the state A citizen remove the suit to the federal district court?

ANSWER: NO - because when the defendant in a case is the local citizen, being sued in her home state, then she is barred from removing it from the state court on the ground of diversity even though not barred from commencing a diversity action as a plaintiff in his home state. (Problem #5).

A State A plaintiff commencing an action in a State B state court against several defendant’s one of whom is a State B citizen guarantees to the plaintiff that none of the defendants can remove it to the federal court on the ground of diversity jurisdiction.

PROBLEM: #8 Passenger, a State A citizen, was injured in State B in owner’s car, driven by owner, who was also from State A. The driver of the other car involved in the collision was from State B. Passenger’s injuries were due to the alleged concurrent negligence of both owner and driver.

Passenger sued driver in the federal court for $100,000 based on diversity jurisdiction of Passenger and driver. The State B driver impleaded owner into the action by asserting supplemental jurisdiction, even though we now have citizens of State A on both sides of the suit. Since the impleader claims arose out of the same transaction 28 USC § 1367(a)’s supplemental jurisdiction permit it for a related impleader complaint. However, Congress foresaw this maneuver by the plaintiff, knowing plaintiff (passenger) could not have used diversity jurisdiction to initially sue owner since both shared the same citizenship (State A) but passenger foreseeing that State B driver most certainly would implead owner into the pending suit for contribution on passengers’ claim. Thus, 28 USC § 1367(b) specifically prohibits a plaintiff from using supplemental jurisdiction on a third-party defendant impleaded into the action when the original claim is in the federal court based on diversity jurisdiction and the plaintiff and third- party defendant share the same citizenship. Baker-Mckee, Federal Civil Rules Handbook § 2.13 at 86-87 (2016).

Civil Procedure Breakdown of Civil Procedure on the MBE

33% Law Applied by Federal 66% Courts, Jury Trial, Verdicts, Jurisdiction, Venue, Judgements, Appealability Pretrail Procedures, and and Review Motions

Jurisdiction, Venue, Pretrial Procedures and Motions (66%) What Concepts Do They Expect You To Know?

A. Jurisdiction and Venue 4. Joinder of parties and claims 1. Federal subject matter (including class actions) jurisdiction 5. Discovery (including e- 2. Personal jurisdiction discovery), disclosure, and 3. Service of process and notice sanctions 4. Venue, forum non conveniens, 6. Adjudication without trial and transfer 7. Pretrial conference and order

B. Pretrial Procedures C. Motions 1. Preliminary injunctions and 1. Pretrial motions temporary restraining orders 2. Motions to judgements 2. Pleadings, amended and 3. Posttrial motions supplemental 3. Rule 11

Law Applied by Federal Courts; Jury Trial; Verdicts, Judgements; appealability and Review (33%) What Concepts Do They Expect You To Know?

A. Law applied by federal courts 1. State law in federal court 2. Federal common law

B. Jury Trials 1. Right to jury trial 2. Selection and composition of juries 3. Requests for and objections to jury instructions

C. Verdicts and judgements 1. Defaults and dismissals 2. Jury verdicts –types and challenges 3. Judicial findings and conclusions 4. Effect; claim and issue preclusion

D. Appealablility and review 1. Availability of interlocutory review 2. Final judgment rule 3. Scope of review for judge and jury