35-70 Flashcards
Very good REVIEW
If an opposing party is served with sanctions, what happens?
The opposing party
1) gets a 21 day safe harbor
2) to withdraw
3) or correct a bad pleading
Who must a motion for sanctions first be served on? For what purpose
The opposing party. To allow the opposing party to withdraw the complaint.
After being served with a motions for sanctions, if an opposing party withdraws or correct a bad pleading, and does so can sanctions be served?
No, no matter how outrageous the original misconduct.
When a court not impose a monetary sanction on a represented party?
On the grounds
2) that the attorney made an argument
3) not grounded in existing law
4) or a non frivolous argument extending/modify reversing exting law
5) or establishing new law.
How can a court issue a show-cause order as to why an attorney’s conduct does not violate rule 11b?
On its own initiative.
If an attorney makes an argument not grounded in existing law/ a non-frivolous argument extending/reversing existing law, what can’t the court do?
Impose a monetary sanctions on the attorney’s client.
What does a show cause order do in response to an attorney’s argument that isn’t grounded in existing law?
It provides that attorney
2) with notice of a possible infraction
3) and an opportunity to argue against it
What does a show cause order not do do in response to an attorney’s argument that isn’t grounded in existing law?
It doesn’t itself determine if a sanction should be imposed.
When is a counter claim compulsory?
When it arises out of
2) the same transaction or occurence
3) as the underlying claim
If a compulsory counter claim is not included in an answer, what is it considered?
Forfeited.
When is a counter claim permissive?
IF it is unrelated to the initial action.
When can a defense against a plaintiff that shifts direct liability for damages to a codefendant be used as a cross claim against the co defendant?
Never – a party must bring an actual claim against a coparty.
In a case with multiple defendants, if a claim against an initial defendant is dismissed but a third party still has a cross claim undetermined against the plaintiff, who remains in the suit?
Both the initial defendant and the third party.
Who is a cross claim used against?
A third party defendant.
What does it mean that a cross claim can include a claim that may be premature? Why does the FRCP allow these claims?
A cross claim may include
2) a claim that a co-party
3) is or “may be”
4) liable for all or party
5) of the main action’s claim.
FRCP allows for
2) assertion of contingent claims
3) to avoid multiple lawsuits/encourage resultion
4) with fewest possible steps
When may a defendant only serve a third party claim on a non-party?
When the non party
2) is someone
3) who is or may be liable
4) to it
5) for all or party
6) of the claim against it.
What must be the basis of a third party claim on a non-party?
Derivative liability.
What does a defendant seek when asserting a claim based in derivative liability?
Indemnification or contribution
When is a defendant required to seek leave to file a third party complaint?
Only if it
2) seeks to add the claim
3) more than 14 days after
4) serving its original answer
If a party inserts its third-party claim into its answer, must it seek leave of the court to do so?
No.
What ambit of authority do third party claim’s fall under?
Supplemental jurisdiction
What implication is it that Third Party claims fall under supplemental jurisdiction?
There does not have to be diversity between a third party defendant and a defendant.
What is required for supplemental jurisdiction?
1) the underlying claim must be properly in federal court
2) the claim seeking supplemental jurisdiction must
3) be part of the same case or controversy.
What does a motion to dismiss not seek to resolve?
Factual allegations.
What does a motion to dismiss seek to do?
It seeks to determine
2) whether, if taken as true,
3) factual allegations are sufficient
4) to state a claim for relief
5) as a matter of law
When may a non-party intervene in an action?
1) When a nonparty’s claims
2) share a common question
3) of law or fact
4) with an existing claim
If a nonparty’s claims shares a common question of law or fact with an existing claim, how should the court treat an attempt at permissive intervention?
The court has discretion on permissive intervention.
When is a non party’s intervention a matter of right?
1) when a non party’s claim
2) shares a common question
3) of law or fact
4) with an existing claim
AND
1) non party’s interest
2)will be impaired
3) by their absence in the action
What must be true if someone asserting a claim through joinder against an adverse party?
The federal court must have SMJ over the joinder claim,
What is the basic rule of joinder?
Claims must
2) arise out of same transaction or occurrence
AND
3) raise at least ONE COMMONE QUESTION OF LAW or fact
When will a court join a neccessary party?
1) without non party court
2) accord complete relief among existing parties
OR
2) the absentee’s INTEREST MAY BE HARMED if not joined (most commonly tested)
OR
3) absentee claim an interest that
SUBJECTS A PARTY TO RISK OF MULTIPLE OBLIGATIONS
What is true about joinder of joint tort feasors?
Joint tort feasers are never neccessary parties to be joined..
If the court considered a non party neccessary, what will they look to see before joinder?
1) if the non party’s joinder
2) is feasible
When is a neccessary non-party’s joinder feasible?
1) There is personal jurisdiction over the non party
2) There will be SMJ over the claim by
3) or against the non-party
In determining Diversity SMJ over a non-party deemed neccessary for joinder, how does the court align the non party?
1) For diversity analysis
2) The court aligns the non-party
3) as a plaintiff or defendant
4) based on the non-party’s interest
If the court deems joinder of a neccesary non-party feasible, what happens?
The non-party is simply joined.
In determining feasibility for a neccessary non-party, how do you determine PJ using the quirky geographic PJ rule?
1) If neccessary non party is served
2) in a district of the United States
3) and not more than 100 miles
4) from where the summons was issued
5) there is PJ.
In determining feasibility for a necessary non-party, how do you determine PJ if the non-party doesn’t meet the quirky geographic PJ rule?
You use minimum contacts.
If it is not feasible to join a neccessary non-party, what does that mean?
Court lacks pj
2) or SMJ over the neccessary non party
If it is not feasible to join a neccessary non-party, what must the court figure out?
1) whether to proceed without the neccessary non party
OR
2) dismiss the entire case
If it is not feasible to join a neccessary non-party, what factors does the court look at to determine whether they should dismiss the case or proceed?
1) is there an alternative forum available?
2) What is actual likelihood of harm to Neccessary non party?
3) Can court shape relief to avoid harm to Neccessary non party?
If it is not feasible to join a necessary non-party, what is an example of an alternative forum the court may think is more proper for the entire claim to be litigated?
State court somewhere
If its Necessary to join a non party, but it’s not feasible, so the court decides to dismiss the case, what is the Necessary non party then called?
Indispensable.
What is the general rule around when parties may serve discovery?
1) Genereally, parties may not
2) serve discovery
3) until after a discovery planning conference
What is discover able under interrogatories?
1) facts
2) contentions
Generally, when can you serve interrogatories?
1) Generally, it’s part of discovery
2) so after discovery planning conference
What is the triggering event that allows parties to serve discovery?
The discovery planning conference.
What is not the triggering event that permits parties to serve discovery?
Generally, anything other than the discovery planning conference.
How many interrogatories may a party serve before they have to ask permission?
25 interrogatories.
If a party seeks to serve more than their FRCP allowable amount of interrogatories, at least how many interrogatories are they seeking to serve? What must they do in order to serve these additional interrogatories?
They are seeking to serve at least 26
They must seek
1) leave of the court
OR
2) consent or stipulation of the adverse party
Who bears the burden of defeating a motion for summary judgement?
The non-moving party
To defeat a motion for summary judgement, what can’t the adverse party solely rely on?
The pleadings.
To defeat a motion for summary judgement, and in addition to the pleadings, what must must type of evidence must be identified?
1) Specific evidence
2) in the record
3) demonstrating a material factual dispute
4) for trial
What is specific evidence that can be cited to to defeat a motion for summary judgement, and what must the specific evidence show?
1) Depositions,
2) Documents
3) affidavits
4) admissions
5) interrogatory answers
What must the specific evidence contained in Depositions, Documents, affidavits, admissions, and interrogatory answers establish?
The presence of a genuine dispute.
What must affidavits be made on?
Personal knowledge
What must an affidavit set forth?
Facts that would be ADMISSIBLE in evidence.
If an affidavit cannot state specific facts sufficient to oppose a motion for summary judgement, what can it say?
It can say
1) why the opponent cannot state specific facts
2) in opposition to the motion
3) without adequate time for discovery
What is the non movant on a motion for summary judgement allowed to submit in an affidavit or declaration?
An affidavit or declaration
2) that states more time is needed
3) to take discovery
4) before responding
If a nonmovant submits an affidavit that states more time is needed to take discovery before they can respond, what must that affidavit also contain?
1) it must specify
2) what the discovery will be
3) and how it will help
4) in resisting the motion
If a non movant submits an affidavit opposing summary judgement that states discovery is needed before they can respond, and affidavit specifies what the discovery will be and how it will help resisting summary judgement AND the court agrees with it, how can the court proceed?
If they agree:
1) they can deny the summary judgement without prejudice
2) or defer the summary judgement ruling until non movant has had a fair chance to take the discovery specified
What does the plaintiff have in a case?
1) the burden of proof
2) for every element of his claim
In order for a plaintiff to successfully put forward a claim, what must be true about every element of the claim?
1) For Every element
2) Plaintiff must marshal affirmative evidence
3) sufficient to support each element
What is not a sufficient response to summary judgement which would not supply the affirmative evidence Neccessary to support a claim?
1) to argue that
2) Summary Judgement should be denied
3) because jury may find credibility an issue of each party
What does a party moving for summary judgement not need to do, per SCOTUS?
They do not need to disprove a nonmovant’s claim.
What is enough for a moving party to do in order to be successful on summary judgement?
1) it is enough
2) for the movant
3) to point out
4) what appears to be fatal gap
5) in the non movant’s proof
If a party moving for summary judgement points out what appears to be a fatal gap in the nonmovant’s proof, what happens?
1) The burden shifts
2) to the movant
3) to identify evidence that would fill the gap
For summary judgement purposes, what does it mean to say that the plaintiff has the burden of proof?
The opposing side is not obligated to disprove the plaintiff’s claim.
When may a party move for summary judgement?
At any time after their answer, up until 30 days after close of all discovery
For what grounds can a motion to dismiss be granted?
1) complaint fails to state a claim
2) court does not have SMJ
3) Complain is barred by some legal immunity
In order to ask the court to defer action on a summary judgement or deny the motion, what must a plaintiff be able to turn up in discovery?
1) Facts essential
2) to justify their opposition
3) to summary judgement motion
IF a party is asserting that a fact is genuinely disputed, what must they do?
Support their asserrtion
2) by citing particular parts of the record
3) including affidavits, declarations, stipulations or discovery materials
If an opposing party puts forward evidence to support a motion for summary judgement, what can’t you rely on to rebut the motion? What must you do?
1) The complaint allegations.
2) Support your factual assertions
3) that a genuine factual dispute exists
4) with your own evidence that it exists
What is the function of a summary judgement motion out side of the pleadings?
1) to allow additional evidence
2) outside of pleadings
3) to show there is no genuine dispute of fact
4) and movant is entitled to JMOL
In a motion for summary judgement, what must be true about the movant’s supporting documents?
They must be admissible in to evidence
When must a motion for summary judgement be filed or it is lost?
1) 30 days
2) after close of all discovery
If an opponent files a motion for summary judgement before discover commences, what argument have they opened to their adversary?
1) adversary may argue
2) it’s neccesary to defer action
3) or deny the motion
4) until discovery takes place
If a defendant has answered, and has moved for summary judgement, and your plaintiff wants to hold off on the case and refile it later when they’re better suited, what should they do
1) File a motion with the court
2) for voluntary dismissal without prejudice
If a plaintiff files a motion with the court to obtain a voluntary dismissal after an opponent answers and files for summary judgement, what do they have to do to get the dismissal without prejudice?
By filing a motion for voluntary dismissal with the court, the dismissal is presumptively without prejudice
How long does a plaintiff have to file a notice of voluntary dismissal without having to file a motion for voluntarily dismiss of an action?
1) Until the defendant answers
2) or moves for summary judgement
How do you go about dismissing an action voluntarily by stipulation?
1) by getting the assent
2) of all parties
3) who have appeared in the action
In order to get a scheduling order modified, what must the moving party show?
Good cause.
In order to get a scheduling order modified, what must the moving party show by way of good cause?
1) party acted diligently
2) to try to meet
3) the original deadline
If a moving party shows good cause, what can the court affect scheduling wise?
1) Any date or deadline
2) in the scheduling order
3) including trial date
4) or date for jury selection
If a party shows good cause to modify a scheduling order, what can a party opposing the requested extension need to show to thwart it?
1) Prejudice that would likely result from the modification
What is the only reason a final pretrial order may be amended?
1) To prevent manifest injustice
What standard is generally associated with pretrial Amendment?
“if justice so requires”
What standard reasons allow motions seeking relief from a judgement?
1) Clerical error (any time)
2) Mistake, excusable neglect (including not putting forward viable defense) ( reasonable time but never more than one year)
3) Fraud, misrepresentation, or misconduct by opposing party (reasonable time (but never more than one year)
4) newly discovered evidence that could not have been with due diligence for a new trial motion (and evidence existed at time of trial) (reasonable time never more than one year)
5) Judgement is void (no smj) reasonable time no maximum
What standard applies once the court enters the final pretrial order?
Manifest injustice
What standard applies to modifying a trial cord order regarding the trial plan following a final pretrial conference?
Manifest injustice.
If an attorney wants to modify a final pretrial order, what must they do?
1) move for a modification
2) demonstrate that manifest injustice would result if the order is not modified
If an attorney does not move to move to modify the final pre trial order, what is true?
The issue will not be preserved for appeal.
On appeal, what will a trial court’s denial of a move for modification (if properly preserved) of a final pretrial order be reviewed under?
Abuse of discretion.
If an attorney does not move to move to modify the final pre trial order but objects to it, what is true?
It is not preserved for appeal.
If there are both legal and equitable issues presented in a case, what has SCOTUS said the trial court must do?
A trial court
1) must submit legal issues to the jury FIRST
2) THen the court can resolve remaining equitable issues
If there are both legal and equitable issues presented in a case, and issues between the two overlap, what has SCOTUS court said?
1) If issues overlap
2) Court is bound by jury’s resolution
3) of overlapping issues
What is an equitable claim?
An injunction.
What is true about an equitable claim?
There is no right to a jury trial.
Can a court order a jury trial for a claim on its own?
1) Yes
2) BUT only if the claim
2) is one for which a jury could have been demanded
If a football team threatened to leave a stadium, and a city used in federal court to seek an injunction from them leaving, and then the team puts forward a counter claim for breach of contract that demands a jury trial, what result? What is the injunction?
SCOTUS has held that when both legal and equitable issues are presented in a case, the court must submit legal issues to the jury FIRST AND THEN the court can resolve remaining equitable issues. Therefore, the court must first hold a jury trial on the team’s counterclaim before hearing the city’s claim for equitable relief.
Ordinarily, what is the last pleading directed to a plaintiff’s claim? So when is the normal jury trial deadline?
The answer, so a jury trial request must be 14 days after the defendant serves an answer.
If someone serves a motion to dismiss before serving an answer, when does the clock run for a jury trial?
When the answer is finally served.
When does the Seventh Amendment preserve the right to a jury trial?
1) In actions where
2) legal
3) not equitable
4) relief is sought
Do class actions affect the right to a jury trial?
No.
What is the complexity exception to the right to a jury trial?
There is no complexity exception.
What does the right to a jury trial under the 7th Amend depend on?
Whether the statutory claim
2) is analogous to one
3) tried to a jury at common law
4) and when relief sought is legal
5) not equitable
When is a non-unamious verdict permissible?
If the parties so stipulate.
What is an example of of something that creates a presumption of bias that allows striking a juror for cause?
1) Stock ownership
2) having worked for
3) having a spouse who works/worked for
4) one of the litigants
If a juror has a history that creates a presumption of bias, what may an attorney ask of a judge?
To strike the juror for cause.
What does a preemptory challenge allow an attorney to do?
1) disqualify a potential juror
2) because the juror has displayed an attitude or characteristic
3) that is unfavorable to the client
4) but it does not rise to a level of bias/relationship to one of the litigants that would be grounds for cause.
If an attorney uses a preemptory challenge, what must be true?
1) the juror has not given rise to a level of
2) bias or
3) relationship to a litigant
4) that would be grounds for cause
If a juror displays possible bias, but says they could fairly consider evidence in a case, how should a judge treat them?
1) the judge can take that fact into account
2) but it is not determinative
What does a challenge for cause require?
1) the courts objective determination
2) as to whether potential juror
3) meets the statutory qualifications
4) for jury duty
In determining whether a juror meets the statutory qualifications for jury duty, what will a court only consider?
1) a potential jurors relationship to one of the litigants
OR
2) evidence of bias/prejudice regarding one of the litigants
If a party agrees to a verdict of less than six people, what challenges do they have after it?
None, the challenge is waived
When do FRCP allow a verdict of a jury with fewer than six jurors?
Only if the parties agree to it.
Per the FRCP, what number of jurors MUST a federal trial begin with?
Six.
If a party fails to preserve an objection to a jury instruction, do they have any recourse?
Plain error review
What must a party prove in plain error review?
The instruction affected the party’s substantial rights.
How must a party object to an instruction to preserve it?
1) object on the record
2) State the grounds for the objection
If a party fails to object on the record to an instruction and state their grounds, but do submit a proposed jury instruction that gets rejected, is it preserved?
no.
If a party fails to object to jury instructions, what did their failure do?
Waived full review
2) so that their standard for appeal was plain error
When is an objection on a jury instruction timely?
1) If raised
2) at time the court
3) first informs the party
4) it will not give the instruction
If a defendant fails to object to a jury instruction, when will it be reviewed on appeal?
ONLY IF it constituted plain error.
To object to a failure to give a jury instruction, what must be true?
The objector must be the party that submitted the instruction.
When is a motion to strike a defense appropriate?
When it is
1) Insufficent
2) redundant
3) immaterial
4) impertinent
5) scandalous matter
Generally, to reply to an answer, what must a plaintiff do?
Seek leave of the court.
Specifically, when may a plaintiff respond to an answer without leave?
1) To answer a counter claim
2) that is included in the answer
Before moving for sanctions, what must a movant do?
1) serve a copy of the motion
2) on the nonmovant
3) and give nonmovant 21 days to correct/withdraw
What is the 21 day period that a non movant has after being served a copy of the motion for sanctions called?
A safe harbor requirement.
Is a plaintiff required to plead reasons why a defendant’s claim defense will fail?
No, no responsive pleading is required
2) a defense will automatically be deemed denied
When may a judgement on the pleadings be made?
After the pleadings are closed.
If a defendant asserts a counter claim in their defense, what must a plaintiff do before making a motion for judgement on the pleadings (or any motion)?
File an answer to the counter claim.
What does a motion for judgement on the pleadings seek judgement on?
Not only on the primary claim, but also any counter claims contained in the pleadings.
If a moving party satisfied their burden for a motion for summary judgement, what happens?
The burden shifts to the non moving party to introduce arguments or evidence that a genuine dispute exists of material fact.
At the summary judgement stage, what evidence may the court considered? For what?
Evidence beyond the pleadings. To get ermine if a genuine issue of material fact exists.
When may a party move for summary judgement?
1) Anytime
2) until 30 days
3) after the close
4) of all discovery
If a moving party satisfies their burden for summary judgement, must an opposing party file evidence in response?
No, they can simply argue
2) moving party’s evidence
3) is Insufficent to warrant JMOL
What is in itself not a basis to find for summary judgement?
THe non-moving party’s failure to file evidence in response.
When considered whether to grant judgement as a matter of law, what must the court determine?
1) after considering all the evidence
2) introduced by both parties
3) whether there is legally sufficient evidence
3) to support a judgement for the non-moving party
In determining JMOL, how does the court weigh the evidence?
1)The court does not weigh the evidence
2)it determines whether there is legally sufficient evidence
3) to support a verdict for proof burden bearing party
When can a court extend a deadline for a renewed motion for JMOL?
It CANNOT. Even if the parties stipulate to it.
When can a court grant a JMOL against a party?
ONLY if
2) court finds that
3) a reasonable jury
4) would not have
5) a legally sufficient evidentiary basis
6) to find for that party
Since a motion for a judgement as a matter of law takes a case away from the jury, when can it be granted?
1) only if
2) the court determines
3) the evidence is legally insufficent
4) for a jury to decide the case
When can a motion for JMOL be made?
1) Any time
2)before the court
3) submits the case
4) to the jury.
When must a court let a jury verdict stand?
1) If there is SUBSTANTIAL EVIDENCE
2) supporting the verdict
3) assuming that the jury resolved
4) all disputed issues in the widow’s favor
How long does someone have to file a renewed motion for a judgement as a matter of law in the context of a jury verdict?
1) 28 days
2) after the entry of judgement
If a renewed motion for JMOL raises a jury issue not decided by a verdict, when must it be raised by?
1) 28 days
2) after jury is discharged
What is a court allowed to do when dealing with a renewed JMOL?
1) allow judgement on the verdict
2) order a new trial
3) direct the entry of judgement as a matter of law
What is the trial court allowed to do that the jury is not allowed?
1) to determine
2) whether the evidence
3) if accepted
4) is sufficient as a matter of law to support a verdict
On what grounds may a court relieve a party from a final judgement?
On the grounds of:
1) fraud
2) misrepresentation
OR
3) misconduct
4) by an opposing party
What is newly discovered evidence?
Evidence that previously existed
2) but could not have been discovered
3) with reasonable diligence
Who may be deposed?
Both parties
2) and nonparties
For a deposition, who has to be served with what?
1) parties need a notice of depo
2) nonparty must be served with subpeona
If a noticing party fails to show up for a depo, who’s liable for costs?
Potentially the noticing no show.
What is a subpeona dueces texum?
1) requires a deponent
2) to bring requested materials
What is the farthest a nonparty can be made to travel for a depo?
100 miles from
2)abode
3) employment
If deposing an organization, what must you do?
Notice them
2) they decide who shows up
How many depositions can a party make before cort approval/stipulation?
10
How many times can a party depose someone without court approval/stipulation?
Once.
At trial, what can a deposition be used for ?
1) to impeach deponent
2) For ANY PURPOSE if deponenet is adverse
3) For ANY PURPOSE if deponenet is unavailable
Who are interrogatories only sent to?
Parties to the litigation
Who are interrogatories never sent to?
Non parties.
How long to answer an interrogatory?
30 days
2) from service
How must parties answer interrogatories?
Based on information reasonably avail.
If the answer to interrogatories can be found in business records what is the rule?
1) IF burden of finding answer would be about same for either party
2) responding party can allow requesting party access to records
Can interrogatories inquire about legal contentions?
Yes
What is a request to produce?
1) Asks A PARTY
2) TO make avail for review and copying documents/esi
3) or permit entry on property to inspect/measure
WHo can a request to produce be served on?
ONLY PARTIES
How long until a party MUST respond to an rtp and in what form?
1) 30 days since service
2) in writing
WHat is required and what must be shown to get a medical exam?
1) a court order
2) person’s health is in actual controversy
3) good cause
What is a request for admission?
1) a request that someone admit
2) acertain document (like a contract) is what it says it is
How long does a person have to deny a proper request for admission and what happens if they don’t respond denying it?
1) 30 days
2) it’s deemed admitted
In regards to discovery, what must parties sign?
1) substantive answers to discover
2) under oath
What can someone discover?
1) anything relevant to a claim
2) or defense
3) and is proportional to needs of case
What is another name for work product doctrine?
Trial prep materials
what is work product protecting?
1) materials prepared
2) IN ANTICIPATION OF LITIGATION
When can work product be discovered?
When it is qualified.
What must a party show to discover qualified work product?
Requesting party must show
1) substantial need
2) and undue hardship
3) in obtaining materials
4) in an alternative way
What type of work product is never discoverable?
Absolute work product
2) mental impressions
3) conclusions
4) legal therioes/opinions
How do you assert privilege or work product?
1) expressly
2) and make a privilege log
What happens if a party absolutely discloses privileged/protected material in discovery?
1) notify other party promptly
2) other party must destroy
3) pending a decision by court on waiver
What is a protective order in discovery?
1) party thinks a discover request is annoying/embarrassing/undue burden
What must someone show when seeking a protective order in discovery?
1) Certify that they tried
2) in good faith
3) to resolve issue without court
When will a party be liable for discovery sanctions?
1) fails to fully attended depo/respond to interrs/respond to requests for prod
What must a party show that they tried to do before seeking sanctions?
1) tried in good faith
2) to get compliance
3) without court
IF a party gives less then a full response to requests for production, ECT, what must sanction seeking party do?
1) move for an order compelling production
2) If producing party violates order, court can enter merits sanctions
If a producing party violates an order to compell answer, what sanctions can be issued?
1) merits sanctions
2) costs
3) attorneys fees for bringing motion
4) contempt of court
If a party fails to respond to discovery request entirely, what can court do?
1) Immediately enter merits sanctions
2)costs/attorneys fees
If a party fails to respond to a discovery request entirely, what don’t you need to get before sanctions can be issued?
An order to compel answers
What can a merits sanctions do?
1) establishment orders (establishes fact as true
2) strike pleadings as to issues of discovery
3) disallow evidence as to issues in discovery
4) dismiss plaintiff’s case (if bad faith shown)
5) enter default judgement against defendant (bad faith shown)
IF litigation is anticipated, what must a party do?
PReserve discoverable information
What is an order that maintains status quo until trial called?
Preliminary injunction
What does a preliminary injunction do?
Maintain status quo until trial.
To get a TRO ex parte, what must someone do?
1) file papers under oath saying suffer immediate/irreparable harm
2) gave best efforts to notice
What must a trio be?
1) specific
2) in detail
When can a TRO not be extended past?
28 days.
Can a preliminary injunction be issued ex parte?
No.
What must a prelim injunctions show?
1) irreparable harm
2) win on merits
3) balance of hardship favors party seeking
4) its in public interest
When can a plaintiff withdraw a case without a court order?
1) before a defendant serves an answer
2)files a motion for summary judgement
How many voluntary dismissals do you get without prejudice?
One.
How long before a plaintiff must respond to complaint after service?
21 days after service
IF a plaintiff fails to answer after 21 days, but a default is not entered, how long can they respond?
Until default is entered.
What does entry of default do and not do?
1) cuts the plaintiff’s right to respond
2) but does not entitled plaintiff to relief
When can a clerk of the court enters a default judgement?
All must be true:
1) D made no response at all
2) claim itself is for a sum certain money
3) Plaintiff gives affidavit of money owed
4) Defendant is not MINOR / Incompenetent
When must a plaintiff apply to the court for a default judgement?
1) If d has made a response
OR
2) claim is not for sum certain
Or
3) Plaintiff fails to give affidavit of money owed
or
4) Defendant is minor / incompetent
When is a defendant entitled to notice of a default judgement hearing?
If they have appeared in some fashion
WWhen may a defendant move to have a court set aside default?
1) good cause
2) viable defense
If a defendant has not answered, and plaintiff has failed to state a claim, what motion should defendant make?
Motion to dismiss for failure to state a claim
If Defendant has answered, but plaintiff has failed to state a claim upon which relief should be granted, what motion should they file?
Motion for judgement on the pleadings.
In a motion to dismiss, what do judge’s strike out and what do they consider?
1) strike out legal conclusions
2) consider allegations of fact on face of complaint
In a motion to dismiss for failure to state a claim, can plaintiff’s amend their complaint to state a claim?
At judge’s discretion.
When is a motion for summary judgement proper?
1) after case has been filed
2) P has survived rule 12 motions
Is summary judgement has been deemed appropriate, must the court grant it?
No,
1) they have discretion
2) which is balanced by abuse of discretion Appellate review
What is partial summary judgement also known as?
Summary abjudication
When must a 26f scheduling conference for trial take place?
at least 21 days
2) before court’s scheuling order
When must parties produce a discovery plan?
No later than
2) 14 days after 26f conference
How many preemptory challenges does a side get?
Generally, 3.
Unless parties agree otherwise, what must a verdict be?
Unanimous
IF a jury returns a special verdict, or a general verdict with written questions, what must their answers be?
1) the answers must be
2) consistent with each other
3) and the verdict
If a case has a general verdict with written questions, and the answers are consistent with each other, but inconsistent with the verdict, what may the court do?
1) enter an appropriate judgement
2) consistent with the answeres
3) tell jury to reconsider
4) order a new trial
If a case has a general verdict with written questions, and the answers are inconsistent with each other,and one or more is inconsistent with the verdict, what judgement can the court enters?
The court can enter no verdict
What is barbri JMOL standard?
1) Reasonable people
2) could not disagree
How is the evidence viewed on JMOL?
In light most favorable to non moving party
What must be true about a JMOL before a judge can enter a verdict?
Non moving party must be heard on the issue of the case.
What grounds must a renewed JMOL rest on?
The same grounds as a JMOL
When must a party move for a new trial?
28 days
2) from the judgement
If a party meets the grounds for a RJMOL, but didn’t move for a JMOL, what should they do?
1) move for a new trial
2) based on verdict
3) being against the weight of the evidence
What is the ground for a new trial based on Remittur/additur?
1) jury’s damage figure
2) is excessive/inadequate
3) that is SHOCKS THE CONSCIENCE
What happens in remittitur?
COurt offers plaintiff a choice
1) remit part of the damages award
2) or a new trial will be ordered
What can’t happen in remittitur?
The judge cannot
2) simply lower
3) the jury’s damages figure
What happens in additurs?
1) court offers defendant a choice
2) add to damage award
3) or go through a new trial
Where is additur not allowed?
FEDERAL COURT
What grounds are appropriate for relief from an order or judgement?
Clerical error
2) mistake/excusable neglect
3) fraud
4) newly discovered evidence that could not have been discovered with due diligence
5) judgement is void (no SMJ)
When can a defendant last submit offers formally to settle?
14 days
before trial
What is an interlocutory order?
A judgement that is not the final merits of the case
When must notice of appeal be filed?
Within 30 days of
2) judgement being appealed
What is the appellate collateral order doctrine?
App. Court has
1) DISCRETION
2) to hear appeal of an issue
3) if issue
4) is distinct from merits of case
5) involves important legal question
6) is unreviewable if parties await final judgement
What does an appellate court have over class action decisions granting/denying certification?
Discretion
When must someone appeal class action certification?
Within 14 days
What standard of review does a district court get to questions of law?
De novo–no deference
What standard of review does a district court get on facts?
Clearly erroneous
If case 1 and case 2 are in different judicial systems, how does preclusion law work?
Apply preclusion law
2) of judicial system that
3) decided case 1
What are the requirements for claim preclusion?
Case 1 and case 2
2) were brought by
3) same claimaint against
4) same defendant
5) case 1 ended w/ valid judgement on merits
6) case 1/2 are same claim
When is a judgement not on the merits?
If based on
1) lack of jurisdiction
2)improper venue
3) failure to join indispen party
What is the majority view of same claim issue preclusion?
1) a claim is any right
2) to relief
3) arising from a
4) transaction or occurence
What is the primary rights doctrine of issue preclusion?
1) property damage
2) personal injuries
3) are separate claims
what are requirements for issue preclusion?
1) case ended in valid final judgement,
2) same issue actually litigated
3) issue was essential to judgement in first case
4) Preclusion being used against party to case 1 or in privity
5) Preclusion being used by someone who was party to case 1 (unless non mutual issue preclusion)
What is non mutual DEFENSIVE issue preclusion?
1) person using preclusion
2) was not a party to case 1
3) and is defendant in case 2
What is non mutual offensive issue preclusion?
1) Person using precluson
2) was not a party to case 2
3) and is plaintiff in case 2
is non mutual offensive issue preclusion ok?
Majority states say no
non mutual offensive issue preclusion factors?
1) Party to be bound had full/fair opp to litigate case 1
2) Party to be bound had STRONG incentive to litigate case 1
3) Party asserting issue preclusion could easily have joined case 1
4) no inconsistent findings on the issue
How long do you have after service of complaint to answer the complaint OR file a rule 12 motion to dismiss?
21 days
How long do you have to amend pleading once, as a matter of course, after its service?
21 days
How long do you have to amend pleading once, as a matter of course, after responsive pleading?
21 days
How long do you have to withdraw a pleading after rule 11 motion?
21 days
How long after judgement to file a renewed motion for judgement as a matter of law?
28 days
Time after judgement to file for a motion for new trial?
28 days
How long do you have after being served to remove?
30 days
How long do you have to seek remand after removal?
30 days
Time to return request to waive service of process?
30 days
Time to return request to waive service of process if you are outside of the US?
60 days
How long do you have to file an appeal?
30 days after judgement
If D waived service of process, how long do they have to answer complaint?
60 days
If D waived service of process, how long do they have to file a 12 b motion?
60 days
What is the general time limit to properly serve process?
90 days
What is outer time limit for removal based on diversity?
One year
What is proper way to approach erie issue?
IS there a federal law on point that conflicts with dtate law?
2) If no law on point, FJ must apply state law if issue is substantive
3) If no law on point, and issue is not expressly substantive, is it substantive?
4) run through tests (outcome determinative, balance of interests, avoid forum shopping)
