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
