Civ Pro

Question 1

subject matter jurisdiction overview

Answer 1

• must be affirmatively pleaded in every case & can be challenged by anyone at any time
• federal question jurisdiction
• diversity jurisdiction
• supplemental jurisdiction
• removal and remand

Question 2

federal question jurisdiction

Answer 2

exists for a claim that arises under federal law in P’s well-pleaded complaint

a defendant’s federal defense is not sufficient

Question 3

diversity jurisdiction

Answer 3

requires showing both complete diversity and amount in controversy must exceed 75k
*excludes probate & domestic relations actions

1. complete diversity (when complaint filed)
   - individual’s domicile is where he resides & intends to stay
   - corp’s domicile is both its principal place of business (where managers direct, control & coordinate the business - headquarters) and place of incorporation
   - partnership & unincorporated association is citizen of every state of which its members are citizens
   - foreign corporation is a citizen of the country in which it is incorporated
   - a legal representative of a decedent’s estate will be deemed a citizen of the same state as the decedent—not the state where the legal representative is domiciled.

*minimal diversity permitted only in federal interpleader act, class actions with claims over 5 million, and interstate mass torts if at least 75 natural persons died

2. AIC
   - good faith allegation
   - 1 P can aggregate all claims against 1 D
   - 1 P may only aggregate claims against multiple Ds to reach AIC if they are jointly liable
   * 2 Ps can’t aggregate claims against 1 D
   - -> unless 1 Ps claim meets AIC and others come in through supplemental jurisdiction

• when the multiple plaintiffs are enforcing a single title or right in which they have a common or undivided interest, such as tenants-in-common, they may aggregate their claims
• the existence of diversity jurisdiction is tested at the time that the complaint is filed. The subsequent substitution of a party due to death is not considered for purposes of diversity jurisdiction
• The presumption is that a place of domicile continues until it is definitively changed. An intent to move without relocating to another state will not result in a change in domicile.

Question 4

supplemental jurisdiction

Answer 4

allows a federal court with SMJ to hear additional claims over which court wouldn’t independently have jurisdiction if all the claims constitute the same case or controversy (arise out of a common nucleus of operative fact)

federal question cases

• supplemental jurisdiction works as long as additional claims are related
• an additional plaintiff can join the action so long as the claim is related to a claim that already qualifies under federal question jurisdiction (& can add diff D)

diversity cases:

• broadly available for related claims by Ds but much more limited for claims by Ps
• -> compulsory counterclaims asserted by D
• -> cross-claims asserted by Ds so long as arise out of same TOC, and
• –> voluntary joinder of Ps for related claims when there is a single D (as long as doesn’t destroy diversity)
• supplemental jurisdiction in diversity cases does not ever allow you to join a non-diverse D or P

Question 5

removal and remand

Answer 5

D files motion for removal in federal court to move case from state to federal court, P usually files petition for remand
*only defendants may remove

Is removal proper?

1. analyze whether the federal court has SMJ
2. analyze whether the other removal requirements were met:
   - diversity jurisdiction: no Ds are citizens of the state in which the claim was filed
   - motion for removal must be filed within 30 days of receiving the complaint from the plaintiff
   - all defendants must join in the motion or consent

*if all requirements are met, there has been valid removal; there will not be a remand

Question 6

personal jurisdiction

Answer 6

*lack of PJ must be raised at first opportunity, voluntarily litigating on merits is waiver (includes anything but challenging jurisdiction)

PJ refers to the court’s ability to exercise power over a particular defendant. There are 3 general types of personal jurisdiction: 1. in personam, 2, in rem, and 3. quasi-in-rem
In this case…

In personam jurisdiction:
traditional bases:
1. service while voluntarily present (doesn't include passing through to attend judiciary proceeding) 
2. domicile
3. consent

long-arm statute: if there is no long-arm statute in the fact pattern, assume the state goes to the full extent allowed by the constitution
1. due process (requires sufficient contacts & cannot offend traditional notions of fair play and substantial justice)
a. minimum contacts
1. purposeful availment (of privilege of conducting activities in the forum state, invoking benefits & protections of its laws
2. foreseeability: whether foreseeable to D to be hauled into court there
3. relatedness of the claim to the
contact:
-a. specific jurisdiction: when
cause of action arise out Ds
contact with forum state (even if it’s D’s only contact with state)
-b. general jurisdiction : if D had
systematic & continuous activity in the forum state such that D is essentially at home in the forum
b. fairness (fair play and substantial justice)
-interest of the forum state in adjudicating the matter
-burden on D of appearing in the case
-interest of the judicial system in efficient resolution
-shared interests of the states in promoting common social policies

• once a court with personal jurisdiction over a defendant renders a judgment, that judgment is enforceable by a court in another state by seizure of the defendant’s property located in that state, even if the defendant does not have minimum contacts with the state.
• a federal court has national personal jurisdiction over D when statute authorizes nationwide service of process

Question 7

venue

Answer 7

venue is the district in which the lawsuit should be filed

1. appropriate in any judicial district in which D resides if all Ds reside in the state where the district is located
   - a person resides where he is domiciled
   - a business’s residency requires a PJ analysis
2. where the claim arose: where a substantial part of the events or omissions occurred in that district, or the property is located in that district
3. if neither of the above apply, venue is proper in a judicial district where any D is subject to personal jurisdiction
   * for state case removed to federal, venue automatically proper in federal district where state court sits
   * an action against a federal officer/employee acting “under color of law” may be brought in judicial district in which P resides
   * in an action filed under the Federal Tort Claims Act, venue is proper either in the judicial district where P resides or in the judicial district where the act or omission occurred

transfer of venue:

1. venue must be appropriate in the new district
2. there must be PJ
3. there must be SMJ
4. is transfer to the new venue in the interest of justice?

choice of law:

• if suit brought in district with proper venue and case transferred to another district, law of first forum controls
• if brought without proper venue and transferred to another, law of second court controls

Question 8

The Erie Doctrine

Answer 8

*if state laws are provided, think of Erie (only matters for diversity jurisdiction)

federal question jurisdiction:
-federal substantive and procedural law will control

diversity jurisdiction:
-state substantive, federal procedure

if don’t know whether substantive or procedural, apply Erie

if there a conflict btw federal & state law:

1. federal statute or federal rule?
   a. federal statute: apply federal law instead of state law
   b. federal rule: is the rule ok under the Rules Enabling Act
   - does the federal rule enlarge or abridge any substantive right?
   - -> if yes, then you see the extent to which it affects that right. if it’s a lot, then you apply state law
2. if no federal statute or federal rule, look to federal common law:
   - judge-made federal law (e.g. boundary disputes btw states)
   - would state law change the outcome of the case?
   - -> if no, apply federal common law
   - -> if yes, the state law is substantive and must be used (prevent forum shopping), unless there are serious federal interests

• state substantive includes:
• statute of limitations, burdens of proof, state rules on choice of law

*jury role entirely controlled by federal law

Question 9

relation back doctrine (new claim/party)

Answer 9

new claim:
-amendment relates back to date of original pleading even if after SOL if amendment asserts claim/defense that arose out of the same conduct, transaction, or occurrence as original pleading

new party:

• if the amendment changes the party, it’ll relate back to original date of pleading if:
  1. it asserts a claim/defense that arose out of the conduct, transaction, or occurrence in the original pleading
  2. within 90 days after the filing of the original complaint, the party to be brought in receives notice so he won’t be prejudiced, and
  3. the party to be brought in knew or should’ve known the action would’ve been brought against him but for a mistake concerning the party’s identity.

Question 10

compulsory joinder of parties

Answer 10

1. the party must be necessary
2. there must be personal jurisdiction over the new party (can use bulge provision)
3. there must be SMJ (adding the party cannot destroy diversity)
   - if adding the party would ruin diversity, the court must decide whether to proceed without the party or dismiss the case

necessary party:

• court cannot afford complete relief without the party
• there’s a danger that the party would be harmed without joining, or
• there’s a risk of an inconsistent judgment or double liability

*Tortfeasors facing joint and several liability are not considered necessary parties

factors if a party is necessary but would destroy diversity (indispensable):

1. extent to which judgment would prejudice the parties in the person’s absence,
2. extent to which prejudice could be reduced or avoided by protective provisions
3. whether a judgment rendered would be adequate &
4. whether the plaintiff would have an adequate remedy if action were dismissed for nonjoinder

*motion to dismiss for failure to join a necessary party is not required to be made in a defendant’s initial pleading. It may be raised in any pleading, in a motion for judgment on the pleadings, or at trial.

Question 11

permissive joinder of parties

Answer 11

multiple plaintiffs:

• federal question jurisdiction: an additional plaintiff can join the action so long as the claim is related to a claim that already qualifies under federal question jurisdiction
• diversity jurisdiction: an additional P can join the action so long as the claim is related to the existing claim and the additional plaintiff does not destroy diversity

multiple Ds: aggregate dollar amount if jointly liable

Question 12

discovery

Answer 12

1. broad scope of discovery
   - discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action and proportional needs of the case. information need not be admissible evidence in order to be discoverable. The test is whether the information sought is relevant to any party’s claim or defense.
   - courts consider important of issues, amount at stake, parties’ resources, value of discovery, whether burden outweighs benefit

-when discovery is challenged, the court must weigh the party’s interest in discovery against the privacy interests of the party resisting discovery

-a party may not discover privileged information, party must expressly state the claim of privilege and the basis for it
–> attorney-client
–> work product
–>
The FRCP does not recognize a physician-patient privilege. Further, although there is no common law privilege covering statements made by a patient to a doctor, many states protect such communications by statute, so long as the communications were made for the purpose of obtaining medical treatment. However, the privilege is waived if the patient’s physical condition is at issue or if a case is brought in federal court and state law does not apply.

-experts not called to testify, no discovery unless exceptional circumstances, if expert called to testify then other side can discover report

2. physical and mental exams
   - can compel a physical or mental exam of a party only if that party’s physical or mental condition is at issue and there is good cause
   - person to be examined and all parties must be given prior notice regarding time, place, conditions, and scope of examination
   - only available against a party
3. oral depositions
   * can take place anytime after mandatory initial disclosure (requires leave of the court to take a deposition before the discovery conference) and limited to 10 per party (unless showing of good cause to the court)
   - a party can depose another party or a nonparty after serving a subpoena
   - a party can also request that a nonparty produce documents by serving a subpoena duces tecum

Question 13

jury trial

Answer 13

7th amendment: right to jury trial

• based on division btw law and equity
• equity issues (injunction, specific performance), not require jury trial (nor admiralty issues)
• claims for damages classic remedy at law
• when legal/equity issues overlap, try legal issue first
• must demand jury trial within 14 days after service of last pleading
• 6-12 jurors (can be less if parties agree)
• 3 peremptory challenges (any reason), but not for race/gender
• when a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, the court may 1. approve a judgment that is consistent with the answers, notwithstanding the general verdict, 2. direct the jury to reconsider its answers and verdict, or 3. order a new trial
• when a jury’s verdict does not properly follow the court’s instructions, the court may set aside the verdict and order the jury to resume deliberations

Question 14

judgment as a matter of law (directed verdict)

Answer 14

granted if, viewing evidence in light most favorable to other party, no reasonable person could differ as to the outcome so movant entitled to judgment as a matter of law

*motion made by either party at the close of P’s evidence or at the close of all evidence

*a judge may not consider the credibility of witnesses or evaluate the weight of evidence

*can be made for any claim or defense

Question 15

renewed motion for judgment as a matter of law (JNOV)

Answer 15

after the jury delivers a verdict, motion to override the jury’s verdict

can only renew this motion if was made earlier (directed verdict), same standard

*no later than 28 days after the entry of judgment

Question 16

appeals

Answer 16

there must be a final judgment

• when entered by clerk on court’s docket
• notice of appeal must be filed in trial court within 30 days of entry of judgment
• an order for a new trial is not appealable because it is not a final judgment (have to wait for final judgment from new trial)
• court can usually fix clerical error but if docketed for appeal, need leave from appellate court to do so
• When an action involves multiple claims or parties, a district court may enter final judgment as to fewer than all claims or parties if it expressly determines that there is no just reason for delay. However, if this express determination is not made, any court order that disposes of those claims or parties is not immediately appealable.

interlocutory appeal is limited to

• denial or grant of injunctive relief (not TRO) or affecting interest in property
• certifying a class action lawsuit (made with clerk of appellate court within 14 days)
• –> The proceedings in the district court are stayed pending the appeal if the district court or the court of appeals so orders.
• collateral-order doctrine: too important to deny immediate review (e.g. forum non conveniens)
• writ of mandamus: immediate appellate review of order that’s abuse of authority
• discretionary interlocutory appeal: issue involves controlling question of law with substantial ground for difference of opinion & appeal may materially advance termination of the litigation (appellate court has to certify allowing the appeal within 10 days)
• special statutory exception for an order that appoints or refuses to appoint a receiver

Question 17

claim preclusion

Answer 17

1. lawsuit #1 ended in a valid final judgment (not necessary to be trial)
   - includes default judgment, summary judgment, and dismissal with prejudice
2. the same plaintiff and the same defendant from lawsuit #1 (or successor in interest)
3. claimant is asserting the same claim as in lawsuit #1
   - both K and tort claims seeking redress for same harm are same claim
   - bars claims that could’ve been brought in first case but were not

*Under the doctrine of claim preclusion, whether claims arise from the same transaction or series thereof depends on whether the facts (1) are related in time, space, origin, or motivation, (2) form a convenient trial unit, and (3) conform to the parties’ expectations when treated as a unit.

Question 18

issue preclusion (collateral estoppel)

Answer 18

1. same issue of fact in both suits
   - can be different claim, as long as factual issues in common
2. issue must’ve been actually litigated & final, valid judgment
3. the determination of the issue must have been essential to the prior judgment
4. the party against whom preclusion is asserted must have been a party to the first suit (or successor in interest)
   - party invoking preclusion need not have been party to prior action
   * offensive collateral estoppel (courts more hesitant, but fine if D had prior opportunity & similar trial procedures)

*However, trial courts have broad discretion to determine when issue preclusion should apply. If a plaintiff could easily have joined in the earlier action, a trial judge may not allow use of offensive collateral estoppel.

Question 19

intervention

Answer 19

intervention as of right: claim interest in subject matter that may be compromised by disposition of pending action

permissive intervention: may be allowed when common question of law or fact

*no supplemental jurisdiction for diversity case, must satisfy complete diversity & AIC

Rule: (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.

Question 20

interpleader

Answer 20

*property owner forcing all claimants into single lawsuit

persons with claims that may expose P to multiple liability may be joined as Ds even though claims lack a common origin or are adverse and independent rather than identical, or when P denies liability

Question 21

permissive joinder of claims

Answer 21

party may join independent or alternative claims of whatever nature against opposing party

• diversity: P can aggregate claims against 1 D to meet AIC
• federal: state law claims only joined if supplemental jurisdiction (same transaction or occurrence)

Question 22

compulsory & permissive counterclaims

Answer 22

*pleaded in D’s answer

compulsory if at time of service it arises out of same transaction/occurrence as claim to which it responds

• if SMJ over main claim, there is SMJ over counterclaim (AIC doesn’t matter)
• tolls SOL
• lost if not pleaded here

permissive counterclaim doesn’t arise out of same transaction/occurrence

• needs SMJ: either federal claim or complete diversity & AIC
• if past SOL, time-barred

Question 23

cross-claim

Answer 23

claim against co-party may be asserted if it arises out of the same transaction or occurrence of original action or counterclaim (never compulsory)

Comes in under supplemental jurisdiction.

Question 24

impleader

Answer 24

D (third party P) brings into suit someone (third party D) who is/may be liable to D for all or part of P’s claim against him

diversity: comes within supplemental jurisdiction (citizenship & AIC doesn’t matter)

SMJ does not extend to claims by original P against impleaded third-party D (need complete diversity or federal question)

*within 14 days of serving answer

Question 25

service of process

Answer 25

• must be made by non-party, at least 18

1. personally, 2. D’s dwelling, 3. agent, and 4. for people in foreign countries by registered mail, return receipt requested
   - notice must be reasonable under the circumstances
   - for in rem, service by publication only if it’s the best the serving party can do
   - partnership: general partner, attorney, or authorized agent
   - corporation: officer, director, managing agent, or agent appointed for receiving service
   - non-resident motorists: claims arising out of in-state accidents, service can be made on state official who forwards copy to out-of-state D

• if the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service of process
• if a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside a judicial district of the United States
• service may also be effected by following state law in an action brought in courts in a state where the federal district court is located.
• the plaintiff is required to also serve process on the United States if the basis for the action is conduct that occurred in connection with duties performed on behalf of the United States.

*The plaintiff must provide proof of service of process to the court when service was properly made in the U.S. and not waived by the defendant. But a failure to prove service of process does not affect the validity of the service.

Question 26

complaint

Answer 26

notice pleading:

• must put opposing party on notice of claim:
  1. short/plain statement of court’s SMJ,
  2. statement of the claim, &
  3. demand for relief
• special pleading required for fraud/mistake & special damages

(apply if motion to dismiss –>) -SC curtailed notice pleading, require disregarding conclusory claims and see if remaining allegations are “plausible” case for recovery

Question 27

12(b) motion and 12(b)(6) motion to dismiss

Answer 27

12(b): motion to dismiss for lack of SMJ, PJ, improper venue, insufficient process or service, motion to state a claim upon which relief can be granted, failure to join necessary party, forum non conveniens

12(b)(6): claim will be dismissed if it fails to assert legal theory of recovery cognizable at law or allege facts sufficient to support cognizable claim. 2-step analysis:

1. court must identify & reject conclusory statements (legal conclusions unsupported by facts)
2. court must include a “context-specific” analysis to determine whether allegations plausibly give rise to an entitlement of relief

*If the court considers matters outside the pleadings, such as affidavits, then the motion for failure to state a claim will be treated as a motion for summary judgment. When this occurs, the parties will be given an opportunity to present all material information to the court for consideration.

*A defendant may file a motion under Federal Rule of Civil Procedure 12(b) to raise several different defenses, including failure to state a claim on which relief can be granted and insufficient service of process. These defenses must be raised in the first pre-answer motion (or if none, in the answer), or else they are generally waived.

*Under Rule 12(h)(1), if a party makes a pre-answer motion, the motion must raise the defense of insufficient service of process in the pre-answer motion, or the defense is waived. However, courts have generally allowed a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion. This is in line with the Federal Rules’ liberal policy with regard to amendments, and there would be no undue prejudice to the opposing party.

Question 28

motion to strike

Answer 28

IRIS

when pleading contains insufficient defense, or redundant, immaterial, impertinent, or scandalous material

Question 29

answer

Answer 29

FR: 21 days after being served if no motion to dismiss (14 days after notice of court’s action for motion to dismiss)

*the defendant must respond to an amended complaint within 14 days after its service

An answer must include (1) admissions and denials, (2) motions that have not been waived, (3) affirmative defenses, and (4) compulsory counterclaims. Otherwise, these items will be waived.

*pleadings can and should be amended by leave of the court when justice so requires. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party.

Question 30

amendments

Answer 30

may amend a pleading once as of right within 21 days if no responsive pleading is required, or after being served with an answer or 12(b) motion (otherwise need leave from court, should be granted unless too late & prejudicial to other party)

Question 31

Rule 11 sanctions

Answer 31

court may impose sanctions limited to what deters repetition of conduct by others similarly situated, subject to abuse of discretion standard

• can impose payment of attorney’s fees, but typically only when a party makes a motion for such fees
• not subject to sanctions if withdraw counterclaim giving rise to it within 21 days of service of sanctions motion

Question 32

discovery conference

Answer 32

parties must confer at least 21 days before scheduling conference to develop discovery plan (consider nature and basis of their claims/defenses)

Question 33

iterrogatories

Answer 33

questions asked in writing to be answered under oath in writing

• may not be used to request a document
• may only be used against a party

25 written interrogatories per party relating to non-privileged matters relevant to any party’s claim/defense (unless court permits more)

• grounds for objecting must be stated with specificity
• responses due within 30 days
• can respond with business records if burden substantially the same for party serving as party going through them

Question 34

motion to compel

Answer 34

for failure to make automatic disclosures or respond to discovery requests
-must be served on all parties and accompanied by a certificate that the movant has in good faith conferred or attempted to confer with opposing party in an effort to obtain the disclosure without court action

Question 35

federal exceptions for broader PJ

Answer 35

federal interpleader act:

• authorizes nationwide service of process
• service anywhere in US establishes PJ
• special jurisdictional mount, need only be $500 & only minimal diversity
• the stakeholder must be willing to either deposit the property at issue with the court or to post a bond in an appropriate amount

bulge provision:

• allows service anywhere within 100 miles of federal courthouse, even if in another state, in 2 situations
  1. for impleading third-party Ds under rule 14, and
  2. for joining necessary parties under rule 19

unusual provision:

• narrow authorization of nationwide service of process where Ps claim arises under federal law and D isn’t subject to PJ in any state court
• suit can be brought in federal court, as long as there are minimum contacts with the US as a whole

Question 36

in rem and quasi in rem jurisdiction

Answer 36

in rem:
-suit against property (real or personal) so long as property is located in the state where you’re suing, and it can settle everyone in the world’s claim against that property

quasi-in-rem:

• suit to adjudicate the claim to property of a particular D; the subject matter of suit may or may not relate to the property
• subject to same minimum contacts as in personum

Question 37

motion for judgment on the pleadings

Answer 37

when pleadings agree entirely on facts and only the law is in dispute

Question 38

response

Answer 38

*within 21 days of service

• failure to respond to any allegation in complaint constitutes admission (except amount of damages)
• usually boilerplate denial of everything not specifically admitted

-affirmative defenses (require notice) must be stated: assumption of risk, contributory negligence, fraud, duress, release, SOF, and SOL

Question 39

class action

Answer 39

1. numerousness
2. common questions of law or fact
3. typicality of claims by class representatives
4. adequacy of representation

settlement requires judicial approval

diversity: named reps must be complete diverse from Ds and at least 1 P has claim worth over 75k

class action fairness act: large class action at least 100 members with more than 5 mil at stake, only minimal diversity required

*if a class action is certified as a “risk of prejudice” situation (separate actions would impair interests of other class members), notice of class action to members is not required

**Class actions can be maintained in federal court, despite a state law barring class actions to enforce statutory damages claims, if the action is authorized by Rule 23.

Question 40

disclosures

Answer 40

1. initial disclosures:
   - names & addresses of persons with potentially discoverable info
   - copies/descriptions of relevant documents/things
   - computation of damages claimed
2. disclosure of expert witnesses
   - names of experts who will be called at trial (90 days before trial)
   - qualifications, publication, opinions, info on which they will base their opinions, other cases they testified in, and compensation
3. pretrial disclosures:
   - 30 days before trial
   - list of witnesses & exhibits
   - any objections must be made within 14 days or waived (unless good cause)

Question 41

written deposition

Answer 41

questions asked in writing delivered to officer who asks questions orally and witness answers orally under oath
-rarely used, inflexible

Question 42

discovery & inspection of documents & land

Answer 42

request to produce and permit inspection

only applies to documents, things, and land under control of a party

thing to be produced & inspected must be described with particularity

response due within 30 days

Unless otherwise agreed by stipulation or ordered by the court, each party must provide to the other parties for inspection and copying, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment

Question 43

request for admission

Answer 43

failure to respond is admission

admissions are binding in current litigation but no preclusive effect

Question 44

pre-trial conference

Answer 44

• attorneys must attend
• must file pre-trial statement detailing claims/defenses, damages, requests for admissions, list of witnesses & exhibits
• failure to comply means attorney pays costs and other side’s attorney’s fees

Question 45

termination without trial overview

Answer 45

• judgment on pleadings (rare, only when agree on all facts)
• default judgment (D hasn’t shown up)
• voluntary dismissal
• involuntary dismissal
• summary judgment

Question 46

voluntary dismissal

Answer 46

without prejudice, can bring claim later

P has right to voluntary dismissal once at any time prior to D serving answer or motion for summary judgment (not motion to dismiss for lack of SMJ)

if D filed answer/motion for summary judgment, or if P already voluntarily dismissed once, P must seek leave of court for dismissal without prejudice

*Under the two-dismissal rule, a voluntary dismissal is with prejudice when the plaintiff (1) voluntarily dismissed an action in federal or state court without a court order and (2) filed a notice of voluntary dismissal in a second action on the same claim in federal court.

Question 47

involuntary dismissal

Answer 47

usually with prejudice

• adjudication on the merits so preclusive effect
• may be imposed for Ps failure to prosecute or failure to comply with FRCP
• standard of review is abuse of discretion

without prejudice for lack of jurisdiction, improper venue, failure to timely serve process, or failing to join indispensable party

Question 48

summary judgment

Answer 48

no genuine dispute to any material fact & moving party is entitled to judgment of a matter of law
-no reasonable juror could find for nonmoving party

must be supported/opposed by particular materials in the record (must be sworn)

• depositions, answers to interrogatories, affidavits, stipulations, pleadings (usually not sworn but if verified or taken under oath, become affidavit)
• sworn statement must be based on personal knowledge

*partial SJ for certain parties, claims, defenses, or issues (summary adjudication)

Question 49

jury instruction

Answer 49

parties may request specific instructions

judge must inform parties of his proposed instructions before final argument, must provide opportunity to object
-objections must be on record for stated reasons & before jury retires to deliberate

*a party can file a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court for such requests

Question 50

motion for new trial

Answer 50

usually made with renewed motion for JMOL

may be granted in discretion of court for many reasons: legal errors, newly discovered evidence, prejudicial misconduct, judge concludes verdict is against great weight of evidence

remittitur: if verdict seriously excessive, judge may offer remittitur to reduce verdict and grant new trial if remittutur not accepted

Question 51

standards of review on appeal

Answer 51

questions of law: de novo
-did trial court make a prejudicial error?

findings of fact:

• jury verdicts must be affirmed if supported by substantial evidence
• judge’s findings of fact must be affirmed unless clearly erroneous (includes amount of damages)

matters of discretion:

• many issues decided by lower courts (continuances, new trials, discovery limitations)
• standard of appellate review is abuse of discretion
• any reasonable decision will be upheld

Question 52

Jury Polling

Answer 52

Unless the parties stipulate otherwise, a verdict must be unanimous and returned by at least six jurors. To determine whether a verdict is unanimous, the court may poll the jurors individually after a verdict is returned but before the jury is discharged. This must be done upon a party’s request, or the court may do so on its own initiative (i.e., sua sponte). If the poll reveals that the verdict is not unanimous, the court can either order a new trial OR direct the jury to deliberate further

Question 53

Preliminary injunction

Answer 53

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that:

1. the movant is likely to succeed on the merits
2. the movant is likely to suffer irreparable harm—i.e., an injury that cannot be compensated by monetary damages—in the absence of relief
3. the balance of equities is in the movant’s favor—i.e., the harm to the movant absent an injunction outweighs the harm an injunction would cause to the nonmovant(s)—and
4. the injunction is in the best interests of the public—e.g., enforcement of contractual rights and obligations protects the freedom to contract.

Question 54

Extraordinary relief from final judgment

Answer 54

A party can seek extraordinary relief from a district court’s final judgment in limited circumstances (see table above). This motion for relief may generally be made within a reasonable time, but it must be made within one year from the entry of the final judgment when the motion asserts any of the following grounds for relief:

-The judgment was due to mistake, inadvertence, surprise, or excusable neglect by the nonmovant or the court.

-The movant has discovered new evidence that could not have been discovered with reasonable diligence in time to move for a new trial—i.e., within 28 days of the final judgment.

-The nonmovant engaged in misrepresentation, misconduct, or fraud.

Question 55

Work Product

Answer 55

In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.

Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

Question 56

duty to preserve info

Answer 56

A party may request the other party to produce and permit the inspection of any discoverable documents or electronically stored information. Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence required for discovery. When litigation is reasonably anticipated, even if it has not yet been commenced, potential litigants in possession of potentially relevant evidence have a duty to preserve such evidence. Once a duty to preserve evidence is triggered, the party in possession of the evidence must take reasonable measures to preserve it. If a party has a policy in place that results in routine operations that may destroy evidence, such as electronically stored information, that party must affirmatively act to prevent the destruction or alteration of such evidence, even if the destruction would typically occur in the regular course of business. A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation.

Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery. In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.

If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s use in litigation, then the available sanctions include (i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party; (ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or (iii) an entry of a default judgment against the party.

Question 57

forum selection clause
-impact on venue

Answer 57

When transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. Furthermore, the Supreme Court has held that a forum selection clause should be given “controlling weight in all but the most exceptional cases.”

Generally, if the venue of an action is transferred when the original venue is proper (as discussed above), then the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law. However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the conflict-of-law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.

Question 58

default judgment & court clerk

Answer 58

A court clerk must enter a default judgment when (1) the plaintiff’s claim is for a sum certain or a sum that can be made certain by calculation, (2) the plaintiff’s request for default judgment includes an affidavit establishing the amount due, (3) the defendant failed to appear, and (4) the defendant is not legally incompetent or a minor.

Question 59

temporary restraining order

Answer 59

A TRO can be issued without notice or a hearing only if (1) the movant establishes under written oath that he/she will suffer immediate and irreparable harm before the nonmovant can be heard and (2) the movant’s attorney certifies in writing any efforts made to give notice and why notice should not be required.

A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction. A TRO has immediate effect and lasts no longer than 14 days unless good cause exists. A TRO can be issued without notice to the adverse party if the moving party can show (1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and (2) the efforts made at giving notice and the reason why notice should not be required. Additionally, the party seeking a TRO usually must give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully restrained.

Question 60

re full faith & credit

Answer 60

a party against whom enforcement of a judgment is sought may collaterally challenge the original judgment based on lack of subject matter jurisdiction if that jurisdictional issue was not litigated in the original action.

*If the person had wanted to challenge the district court’s determination on subject matter jurisdiction, then he should have filed an appeal. Can’t litigate it now.

Question 61

discretion to decline to exercise supplemental jurisdiction

Answer 61

A district court has discretion to decline to exercise supplemental jurisdiction over a claim that would otherwise qualify for supplemental jurisdiction in each of the following circumstances: i) the supplemental claim raises a novel or complex issue of state law; ii) the supplemental claim substantially predominates over the claims within original federal jurisdiction; iii) all of the claims within the court’s original jurisdiction have been dismissed; or iv) in exceptional circumstances, if there are other compelling reasons for declining jurisdiction.

Question 62

The issue is whether a federal court should dismiss a defamation action based on state law when the plaintiff has not alleged “the particular words constituting defamation” as required under state law.

Answer 62

Under Rule 8(a), a complaint (or any pleading in which a claim is made) must include a short and plain statement of the claim establishing entitlement to relief. There are no special pleading rules for a defamation case under the Federal Rules. Thus, Rule 8(a) generally applies to any claim brought in federal court and will prevail over any state-law pleading rules.

-court will apply federal rule (rules enabling act etc.), created federal rules of civ pro, so those apply over conflicting state law.