Table Of Content

Third Edition Steven L. Emanuel, J.D. Founder & Editor in Chief, Emanuel Bar Review Member, NY, CT, MD, and VA bars 1 Copyright © 2020 CCH Incorporated. All Rights Reserved. Published by Wolters Kluwer in New York. Wolters Kluwer Legal & Regulatory U.S. serves customers worldwide with CCH, Aspen Publishers, and Kluwer Law International products. (www.WKLegaledu.com) No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or utilized by any information storage or retrieval system, without written permission from the publisher. For information about permissions or to request permissions online, visit us at www.WKLegaledu.com, or a written request may be faxed to our permissions department at 212-771-0803. All portions of this book (including all detailed answers), except as otherwise noted below, copyright © 2013, 2020 CCH. All rights reserved. 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They are regarded as exceptional and trusted resources for general legal and practice-specific knowledge, compliance and risk management, dynamic workflow solutions, and expert commentary. 4 SUMMARY OF CONTENTS Contents Preface Civil Procedure Civil Procedure Questions by Topic Civil Procedure Answers Constitutional Law Constitutional Law Questions by Topic Constitutional Law Answers Contracts Contracts Questions by Topic Contracts Answers Criminal Law and Procedure Criminal Law Questions by Topic Criminal Law Answers Criminal Procedure Questions by Topic Criminal Procedure Answers Evidence Evidence Questions by Topic Evidence Answers Real Property Real Property Questions by Topic 5 Real Property Answers Torts Torts Questions by Topic Torts Answers 6 TABLE OF CONTENTS Preface CIVIL PROCEDURE CIVIL PROCEDURE QUESTIONS BY TOPIC CHAPTER 1 JURISDICTION AND VENUE I. FEDERAL SUBJECT MATTER JURISDICTION A. Federal-question jurisdiction 1. Federal-question jurisdiction generally 2. Amount-in-controversy requirement in federal-question cases 3. Federal question as negating the relevance of whether there is diversity 4. Does the federal question appear on the face of the well-pleaded complaint? 5. Additional party in case, who is not a defendant or plaintiff as to the federal-question claim B. Diversity jurisdiction 1. Garden-variety diversity jurisdiction, between citizens of different states a. Complete diversity normally required b. Circumstances under which citizenship of defendant matters c. Time as of which diversity must exist d. Diversity involving corporations e. Diversity involving trusts or estates 7 f. Diversity involving partnerships and other unincorporated associations g. Diversity not relevant to state-court actions 2. Alienage jurisdiction 3. Devices to create or destroy diversity 4. Amount in controversy requirement in diversity cases 5. Federal court’s power to abstain from hearing certain cases qualifying for diversity jurisdiction C. Supplemental jurisdiction (“SJ”) 1. SJ generally 2. SJ where the “anchor claim” is based solely on diversity a. SJ asserted as to claims by an original defendant against an original plaintiff (i.e., counterclaims) b. SJ asserted as to a third-party claim by an original defendant (i.e., a third-party plaintiff) against a third- party defendant c. SJ asserted as to a claim by third-party defendant against anyone d. SJ asserted as to claim by the original plaintiff against a third-party defendant e. SJ and the amount in controversy, when multiple Ps’ claims are aggregated 3. SJ where the “anchor claim” raises a federal question a. SJ for a state-law claim that’s closely related to the anchor claim, and the state-law claim is against the same defendant as the anchor claim b. SJ for a state-law claim that’s closely related to the anchor claim, and the state-law claim is against an additional party (i.e., one is not a defendant to the anchor claim) who is not diverse with the plaintiff(s) 4. Situations in which the court considers whether to use its discretion to decline to exercise otherwise-available SJ D. Removal to the federal courts 1. Requirement that the federal court to which removal is made would have had subject matter jurisdiction over the action had it initially been filed in that court 2. What party or parties may remove? 8 a. Requirement that the removing party must be a defendant b. Requirement that the removal not be made by a citizen of the state where the action is pending, if no federal question is present 3. To what court may the action be removed? 4. When should some or all claims be remanded to the state court? E. Time for raising objection to lack of subject-matter jurisdiction, and waiver of such objections II. PERSONAL JURISDICTION A. Requirement of minimum contacts between D and the forum state 1. The requirement of “minimum contacts” generally 2. The “purposeful availment” standard 3. The requirement that it not be “fundamentally unfair” to require D to defend in the forum state 4. The requirement of minimum contacts with the forum state when the suit is in federal court, and includes a federal-question claim 5. Consent as a basis for personal jurisdiction B. General jurisdiction — special requirements for 1. General jurisdiction based on residency 2. General jurisdiction based on presence in the forum state at the time of service C. Specific jurisdiction — requirements for 1. Minimum contacts always required D. In Rem and Quasi in Rem jurisdiction E. How to raise a challenge to the lack of personal jurisdiction 1. Motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) a. Preservation of right to appeal denial of the dismissal motion F. Special procedural contexts raising the issue of personal jurisdiction 1. Class actions 2. Situations where nationwide service of process may be authorized 9