Exam Checklist

Personal Jurisdiction
A. Federal or State Court? If in fed court, state jurisdictional limits apply unless alternate basis for jurisdiction is provided for in Rule 4(k) B. Long-Arm Statute does the states long-arm statute authorize personal jurisdiction under these facts? C. Constitutional Analysis does the assertion of jurisdiction satisfy requirements of Due Process? a. Traditional Bases for PJ Is one of the traditional bases for personal jurisdiction applicable? i. In-state service ii. Voluntary Appearance/Waiver iii. Consent iv. Family Status v. Nonresident Plaintiffs vi. State Citizens b. International Shoe standard Does the assertion of jurisdiction satisfy the minimum contacts standard of International Shoe? i. Continuous and Systematic and Related Contacts personal jurisdiction is appropriate. ii. Continuous and Systematic but Unrelated possible situation permitting general jurisdiction. Contacts must be substantial. iii. Single and Isolated and Unrelated no personal jurisdiction. iv. Single and Isolated and Related possible specific jurisdiction. c. Specific Jurisdiction Analysis can specific jurisdiction be exercised over the D? i. Minimum Contacts are there minimum contacts b/t D and forum state? 1. Purposeful Availment 2. Intentional Torts 3. Contract-plus 4. Stream of Commerce 5. Internet Cases 6. In Rem Actions ii. Reasonableness would the exercise of jurisdiction be (un)reasonable? 1. Burden to D 2. State interest 3. Ps interest in obtaining relief 4. Interstate judicial systems interest in efficient resolution of controversies 5. Shared interest of States in furthering fundamental substantive social policies

Exam Checklist

Notice and Opportunity to be Heard

A. Notice Was notice reasonably calculated, under all the circumstances, to apprise interested parties of the pending action and afford them an opportunity to present their objections? a. Adequate Info does notice convey sufficient info to notify party of how and by when it should respond? b. Timeliness does notice allow reasonable time to appear? c. Method is method of giving notice a method that one desirous of actually informing party might reasonably adopt to achieve actual notice? Was most reasonable means available used? i. No. If there is a better means that is available and reasonably practical, then it should be employed. ii. Yes. Where a superior method exists but is too expensive, time consuming, or burdensome, then it need not be employed over more practical methods under Mullane. B. Opportunity to be Heard Does pre-deprivation hearing comport w/ constitutional requirements of due process? (Mathews v. Eldridge) a. Property Interest at Stake what is the nature of the Ds property interest at stake? b. Risk of Erroneous Deprivation what is the risk that the D will be wrongfully deprived of its property? i. Showing what type of showing does the P have to make? ii. Bond is there a bond requirement? iii. Judge is the decision made by a judge or a non-judicial court official such as a clerk? c. Plaintiffs Interest what is the interest of the party seeking the prejudgment remedy and if relevant, any ancillary interest of the govt?

Exam Checklist

Subject Matter Jurisdiction

A. Original Federal Court Jurisdiction is there original jurisdiction over claim by P? a. Diversity Jurisdiction are requirements of 28 USC 1332 satisfied? i. Diverse Parties are parties diverse under 1332? 1. Citizens of different states or state citizen versus an alien 2. Citizens of different states w/ aliens as additional parties 3. A foreign state versus a state citizen ii. Complete Diversity - is there complete diversity? iii. Amount in controversy is the claim for more than $75,000? 1. Punitives included; costs and pre-judgment interest excluded 2. Aggregation multiple claims by P against single D can be aggregated as can claims alleging joint and several liability against multiple Ds b. Federal Question Jurisdiction - 1331 or other provision: i. Essential Federal Element 1. Creation Test is claim created by fed law? 2. Substantial Federal Interest Test does claim depend upon application or interpretation of fed law? Substantial? ii. Well-Pleaded Complaint Rule does essential federal element appear on face of Ps well-pleaded complaint? (Mottley) B. Supplemental Jurisdiction 28 USC 1367 a. 1367(a) is there a claim over which the court has original jurisdiction (see above analysis)? If so, is supplemental claim at issue based on same common nucleus of operative fact? (Gibbs) b. 1367(b) does 1367(b) bar supplemental jurisdiction in this case? i. Diversity sole basis for courts jurisdiction? ii. Supplemental claim by P? and iii. Against parties joined under Rule 14, 19, 20, or 24? iv. Or, diversity sole basis + claim by P joined under Rule 19 or 24? c. Discretionary Basis for Denial of Jurisdiction? i. Novel or complex state issue? ii. State claim substantially predominates? iii. Federal claims have been dismissed? iv. Other exceptional circumstances? C. Removal Jurisdiction basis for removing claims to fed court? a. Original jurisdiction over Ps claims? b. D seeking to remove for diversity cannot be from forum state c. 30 day time limit and D unanimity d. Separate and independent claims can be removed w/ fed question claims

Exam Checklist

Venue
A. Waiver has party challenging venue waived challenge? a. Forum Selection Clause b. Failure to Object B. Special Venue Statute is there a special venue statute that applies? If so, then venue must be evaluated under special statute, not 1391. C. General Venue Statute if no waiver has occurred and no special venue statute applies, then apply general venue statute (28 USC 1391) a. Do all the Ds reside w/in same state? i. Identify residency of each D 1. Individuals residency is equated w/ citizenship (domicile) 2. Corporations resident in districts where they are subject to personal jurisdiction ii. If all Ds reside in same state, venue is proper in district where any of the Ds reside b. Is there a district where events creating claim took place or where property that is the subject of the action is located? If so, venue is proper there. c. Fallback Provision If no proper venue can be identified based on first two tests, then determine venue with reference to the fallback provisions of the statute i. Diversity Cases venue is proper in district where any D is subject to personal jurisdiction ii. Non-Diversity Cases venue is proper in district where any D can be found D. Transfer of Venue - is transfer being made to a court where action could have been brought initially? If so, transfer is ok. E. Forum Non Conveniens Have 2 prerequisites for dismissal for forum non conveniens been met? a. Adequate Alternate Forum is there a forum outside of the current court system that is available for the prosecution of Ps claim? b. Public and Private Interests do private and public interests weigh in favor of having the case heard in the alternate venue? i. Private Interest Factors 1. Location of events giving rise to case 2. Availability of compulsory process for attendance of the unwilling 3. Ability to implead other parties in court 4. Ability to take a view of premises involved in dispute 5. Ease and cost of access to sources of proof 6. Enforceability of judgment if one is obtained ii. Public Interest Factors 1. Whether dispute involves local ppl or events 2. Whether dispute is likely to be decided under local law

Exam Checklist

Erie Doctrine
A. Diversity Action is this a diversity action? Erie doctrine is an issue principally in diversity cases B. Controlling Federal Rule or Statute is there a federal rule or statute that is sufficiently broad to control the issue before the court? a. Not Controlling in absence of controlling fed rule or statute, move to Erie analysis below b. Controlling if fed rule or statute is controlling of the issue before the court, proceed w/ Hanna Rules Enabling Act analysis C. Hanna Rules Enabling Act Analysis a. Direct Conflict is applicable fed rule or statute in direct collision w/ law of relevant state? b. Constitutionality of the Federal Rule or Statute does the rule regulate matters that are procedural or capable of being classified as either substantive or procedural? c. Compliance w/ Rules Enabling Act if a Fed Rule is at issue, does the rule comply w/ Rules Enabling Act, meaning it regulates procedure and does not Abridge, enlarge or modify any substantive right? D. Erie Analysis if no fed statute or Rule covers issue before court, then question becomes whether fed practice in question or the conflicting state practice should be applied a. Substance vs. Procedure Test can issue be readily labeled as substantive and thus beyond scope of fed courts to regulate w/in states? b. Hannas Modified Outcome-Determinative Test would application of fed standard implicate twin aims of Erie? i. Promote forum shopping? ii. Result in substantial variations b/t outcomes in state and fed courts? c. Byrd Balancing Approach outcome determinativeness must be evaluated against substantive policy interests furthered by respective state and fed practices i. State Substantive Policy Furthered? Is state practice bound up w/ definition of rights and obligations of parties, such that practice furthers some substantive state policy? ii. Countervailing Federal Interest? Does the federal practice promote an important fed substantive policy interest that outweighs the significance of the state policy underlying the state practice?

Exam Checklist

Pleadings
A. Adequacy of Complaint is complaint sufficient under federal rules? a. Jurisdiction does complaint allege SMJ? Rule 8(a)(1) b. Claim does complaint adequately state claim showing that pleader is entitled to relief? Rule 8(a)(2) i. Special Matters if pleading alleges fraud or mistake it must specify circumstances constituting fraud or mistake. Rule 9(b) ii. All Other Claims does pleading give fair notice of what Ps claim is and grounds upon which it rests? 1. Is D given enough to understand Ps allegations? 2. Does claim as pleaded, if true, entitle P to relief? c. Damages adequate prayer for judgment and relief? Rule 8(a)(3) i. Special Damages are damages the foreseeable result of injuries or events mentioned in complaint? Rule 9(g). ii. Permissible Award final judgment can grant all relief to which party is entitled based on evidence, except that relief granted on default judgment may not exceed prayer. B. Adequacy of Answer is answer sufficient under Rules? a. Denials are Ds denials sufficient to deny properly averments made in complaint? Rule 8(b) i. General Denial is there any portion of allegations that were generally denied that are manifestly true or that the denying party knew was true when they denied it? If so, general denial will be ineffective and allegations will be deemed admitted ii. Lack of Info if answer pleads lack of info, is matter presumptively w/in partys knowledge? If so, response is ineffective and allegation will be admitted b. Affirmative Defenses if D seeks to introduce evidence pertaining to affirmative defense, question will be has D sufficiently pleaded defense in its answer? Rule 8(c) C. Amendments - is proposed amendment proper under Rules? Rule 15. a. Amendment as Matter of Course if responsive pleading is permitted but not yet filed, or if 20 days have not passed when no responsive pleading is allowed, party may amend its pleading w/out permission of court. Rule 15(a)(1).

Exam Checklist b. Amendment Not as a Matter of Course an amendment can be obtained w/ consent of adverse party or permission of court. Court is to grant amendments freely unless: i. There is evidence of bad faith, or ii. There is evidence of substantial unfair prejudice c. Amendment to Conform to Evidence if amendment seeks to conform a pleading to evidence presented or sought to be presented at trial, such an amendment should be permitted if: i. Consent there is either express or implied (no objection) consent to trying issues not raised in or relevant to pleadings ii. Leave of Court a motion to amend to conform is granted unless objecting party would be prejudiced D. Relation Back of Amendments if an amendment is proper and has been allowed, does it relate back to time of filing? a. Statute of Limitations Law does law providing statute of limitations for action permit relation back? Rule 15(c)(1). b. Amendment Involving Claim or Defense if amendment involves a claim or defense, does it arise out of same transaction or occurrence set forth in original pleading? Rule 15(c)(2). c. Amendment Involving New Party if amendment seeks to change party against whom claim is asserted, ask these questions. (See Singletary) i. Satisfaction of Rule 15(c)(2) are requirements of Rule 15(c)(2) satisfied? (see D.b) ii. Notice did party to be brought into action receive, w/in 120 days, notice of institution of action such that it will not be prejudiced in mounting a defense on merits? iii. Awareness of Real Party Status did new party know that but for a mistake that it would have been named in Suit? E. Rule 11 are sanctions under Rule 11 appropriate in this case? a. Violation of Rule 11? Has there been a violation of Rule 11? i. Pre-Filing Inquiry did attorney signing filing conduct a reasonable pre-filing inquiry? ii. Improper Purpose has filing been made for an improper purpose, such as harassment, delay, or to increase costs?

Exam Checklist iii. Frivolous Legal Arguments are legal contentions made in filing supported by law or by non-frivolous argument for extension, modification, or reversal of existing law? iv. Unsupportable Factual Allegations do factual allegations or denials have (or are likely to have) evidentiary support? b. Sanctions given a violation, can court impose sanctions? i. Motion if a motion for sanctions under Rule 11 has been made, ask: 1. Have 21 days passed since motion was served on adverse party? 2. If so, has adverse party withdrawn the challenged filing? ii. On Courts Initiative - has court directed attorney to show cause why it has not violated Rule 11(b)? If so and if court finds that Rule 11 has been violated, it may enter sanctions

Exam Checklist

Joinder
A. Permissibility of Claim is claim permissible? Rule 18. a. Claim Already Asserted if claimant has already successfully asserted claim against party, additional claims may be joined w/ that claim under Rule 18(a) b. Defending Partys Claim against Opposing Party if claim is being asserted by defending party against opponent, it may be asserted as counterclaim i. Compulsory Counterclaim if claim arises out of same transaction or occurrence as claim asserted against claimant, claim must be asserted or it will be waived ii. Permissive Counterclaim if not, claim is permissive and may be brought at counterclaimants option c. Claim against Non-Aggressor if claim is not made by a D against an opponent, whom is the claim being asserted against? i. Co-Party a claim against a co-party may be asserted as a crossclaim under Rule 13(g) if it arises out of same transaction and occurrence as original claim or counterclaim or asserts derivative liability ii. Third-Party D by P (or vice versa) if claim arises out of same transaction and occurrence as Ps claim against D it may be asserted under Rule 14 iii. Rule 19 or 24 Party determine their status in lawsuit once joined and apply that analysis B. Permissive Party Joinder is joinder of party permissible? Rule 20. a. Joinder of Ds if P is asserting against Ds a right to relief arising out of same transaction and occurrence and involving common question of law or fact, P may join Ds in single action under Rule 20(a). b. Joinder of Ps if Ps are asserting a right to relief arising out of same transaction and occurrence and involving a common question of law or fact, Ps may join in a single action under Rule 20(a). c. Joinder of Non-Parties if party seeking joinder is a defending party, she may implead a non-party into action as Rule 14 3rd-party D if party is alleging that non-party is liable for all or part of Ps claim against defending party d. Joinder by Non-Parties if party seeking joinder is non-[arty, they have a right to intervene under Rule 24(a)(2) if: i. They have an interest in the action,

Exam Checklist ii. That would be impaired by resolution of the action, iii. Provided the non-partys interests are not adequately represented by existing parties. iv. Permissive Intervention - the non-party may be permitted to intervene under Rule 24(b) if non-partys claim or defense and main action have a question of law or fact in common C. Compulsory Party Joinder a. Necessity is absentee a necessary party under Rule 19(a)? The party is necessary if one of the following statements is true: i. Availability of Complete Relief in non-partys absence, court would be unable to afford complete relief among those who are already parties to action ii. Impairment to Absentees Claimed Interest disposition of action in non-partys absence would impair or impede non-partys ability to protect their claimed interest relating to subject of action iii. Threat to Existing Parties disposition of action in non-partys absence would leave existing parties subject to substantial risk fo incurring multiple or inconsistent obligations b. Feasibility of Joinder if non-party is deemed to be necessary party, is their joinder in action feasible? i. Personal Jurisdiction can court obtain personal jurisdiction over necessary party? ii. Subject Matter Jurisdiction will joinder of party deprive the court of subject matter jurisdiction over action? iii. Venue has necessary party objected to venue and if so, is venue proper? c. Indispensability of Party if joinder of necessary party is not feasible, should court dismiss action in partys absence? Four factors must be balanced using equity and good conscience: i. Prejudice to what extent would judgment in necessary partys absence prejudice that party or the existing parties? ii. Lessening of Prejudice can prejudice to existing parties or necessary party be lessened or avoided through protective provisions in judgment, the shaping of relief, or other measures? iii. Adequacy of Remedy will judgment rendered in absence of necessary party be adequate? iv. Adequate Remedy Elsewhere if action is dismissed, will P have adequate remedy?

Exam Checklist

Discovery
A. Discoverability is material requested discoverable under Federal Rules? Rule 26. a. Relevance is material relevant to claim or defense of any party in action? Material need not be admissible at trial, just needs to be thought to lead to admissible evidence. b. Limitations do circumstances exist that require the court to limit discovery of the material in question? i. Duplicative is requested material unreasonably cumulative or duplicative of material already sought and received? ii. Less Burdensome Alternative is the requested material obtainable from some other source that is more convenient, less burdensome, or less expensive? iii. Missed Opportunity has requesting party had ample opportunity by discovery to obtain information sought? iv. Cost Surpasses Benefit does burden or expense of proposed discovery outweigh its likely benefit? c. Protective Orders should court limit discoverability of material through entry of protective order? B. Attorney-Client Privilege is material privileged from disclosure? a. Communication does material pertain to communication? b. Confidentiality did communication occur in confidence exclusive of any 3rd parties not party to privileged relationship? c. Between an Attorney and Client was communication b/t an attorney acting as such and her client? d. Legal Advice was communication for purpose of giving or seeking legal advice? e. Waiver was privilege waived by disclosure of communication to 3rd parties outside of privileged relationship? C. Work-Product Protection is material protected from discovery by work-product doctrine? Hickman v. Taylor a. Legal Thoughts does material contain mental impressions, conclusions, opinions, or legal theories of a representative of party?

Exam Checklist b. Trial Preparation were materials prepared in anticipation of litigation? c. Preparer of Material was material prepared by or for the party receiving the request or by or for that partys representative? d. Substantial Need can party requesting material demonstrate they have a substantial need for materials to prepare their case? e. Other Means can party requesting material demonstrate that they are unable w/out undue hardship to obtain substantial equivalent of materials by some other means?

Exam Checklist Pre-Answer and Dispositive Motions A. Ability to Raise Defense can defense be raised at this time? a. Nature of Defense does defense claim lack of personal jurisdiction, improper venue, ineffective process, or ineffective service of process (waivable defenses)? i. If not, defense may be raised at any time through trial. A challenge to SMJ may be raised at any time ii. If so, proceed to next question. b. Timing of Motion if one of the waivable defenses is being raised, has any other defense, objection, or responsive pleading already been submitted to the court? If not, it may be raised and must be consolidated w/ other waivable defenses the party intends to make B. Validity of Defense (Failure to State a Claim) - should motion to dismiss for failure to state a claim be granted? a. Factual Challenge? Does motion challenge factual allegations of complaint? i. If so, motion is not properly a motion to dismiss for failure to state a claim and may not be granted ii. If not, proceed to next question b. Legal Challenges if motion challenges legal sufficiency of complaint, does complaintassuming allegations to be trueentitle claimant to relief under applicable substantive law? i. If not, complaint fails to state a claim and should be dismissed C. Summary Judgment should court enter summary judgment? a. Movants Party Status is movant the party bearing the burden of proof on claim at trial? i. If so, movant must identify or present court w/ sufficient factual evidence to support claim ii. If not, burden falls on non-movant. The movants burden of production may be satisfied simply by pointing to the record and indicating the absence of evidentiary support for non-movants claim b. Discharging Ps Burden of Proof has party bearing burden of proof satisfied that burden? i. Admissible Evidence has party carrying the burden of proof supported their claim w/ admissible factual evidence? ii. Persuasive Evidence is partys evidence persuasive or does partys evidence disprove alternate reasonable explanations regarding Ds challenged conduct? iii. Evidentiary Standard does partys evidence prove its case to the degree required under the relevant evidentiary standard that would be applicable at trial?

Exam Checklist

Judgment as a Matter of Law & Motion for New Trial

A. Judgment as a Matter of Law should court enter judgment as matter of law? a. Timing may judgment as matter of law be entered at this time? i. Only proper if party opposing JMOL has completed presentation of its evidence, and ii. Case has not been submitted to jury, or iii. Jury has issued a verdict and prior motion for JMOL is now being renewed b. Evidentiary Support? Is non-movants case supported by sufficient evidence such that a reasonable jury could find in favor of that party? i. No Evidence? Has non-movant failed to present evidence establishing an essential element of their claim? ii. Substantial Evidence? Do facts and permissible inferences point overwhelmingly in favor of one party, such that reasonable ppl could not arrive at a contrary verdict? B. New Trial should a new trial be ordered? a. Time Limit have 10 days passed since judgment was entered in case? If so, no new trial may be ordered. b. Grounds are there grounds for ordering a new trial? i. Legal Errors has a reversible legal error occurred? ii. Erroneous Jury Verdict does jury verdict go against great weight of evidence? iii. Excessive Verdict is verdict grossly excessive such that it shocks the conscience? If so, the court may use remittitur to lower the awarded amount, forcing P to accept lower amount or face order for new trial iv. New Evidence has new evidence been discovered? 1. If so, could evidence have been discovered earlier through exercise of due diligence? 2. If not, is evidence material, in that it is likely to have an impact on verdict? v. Improper Jury Influence has jury been improperly influenced in such a way as to undermine our faith in the verdict as the product of impartial decision making based only on evidence presented at trial?

Exam Checklist

Preclusion Doctrine
A. Claim Preclusion is claim barred by prior adjudication? a. Same Claim? Is current claim the same as claim raised in prior action? i. Identical Claims are claims exactly identical? ii. Transactionally related Claims do claims arise out of same transaction or series of connected transactions? b. Same Parties? Does current action involve same parties that were party to and adversaries in original action? i. Identical Parties are parties in both actions identical? ii. Parties in Privity if party in current action was not a party to original action, is there a relationship b/t that party and party in original action that warrants treating the non-party to initial action as if it were a party? c. Final Judgment was prior action concluded by final judgment on merits? i. Judgments for Plaintiff if prior case was resolved in favor of P, it is considered final judgment on merits ii. Judgments for Defendant if case was resolved in favor of D, resolution is not treated as a final judgment on merits if it was dismissed for lack of jurisdiction, improper venue, or failure to join party under Rule 19. Otherwise, a resolution for a D is considered a final judgment on merits unless otherwise indicated. B. Issue Preclusion has an issue already been conclusively resolved b/t parties in prior action? a. Same Parties? Does current action involve same parties that were parties to and adversaries in original action? (see A.b above) b. Same Issue? Is issue raised in prior action identical in all respects to issue raised in current action? c. Actually Litigated and Determined? Was issue actually litigated and determined in prior action, meaning issue was raised and argued by parties? d. Necessary to Judgment? Was resolution of issue in question necessary to judgment reached in case? i. Outcome Determinative would a different decision regarding the issue have affected the outcome of the case? ii. Multiple Grounds is it unclear on which of multiple grounds for relief a judgment relies?