Civ Pro Flashcards
1
Q
In federal court subject matter jurisdiction can be based on
A
A federal question properly pleaded in the complaint or on diversity of citizenship jurisdiction
2
Q
What is needed for federal question jurisdiction
A
For federal question jurisdiction the federal question must be integral to plaintiffs cause of action as revealed by plaintiff properly pleaded complaint anticipatory defense artful pleadings state laws including federal standards are not sufficient
3
Q
What is needed for diversity jurisdiction
A
For diversity jurisdiction the plaintiff must have a good faith claim exceeding $75,000 exclusive of interest and cost and the plaintiff must show complete diversity i.e. no plaintiff is a citizen of the same state as any defendant
4
Q
How/when is citizenship determined for purposes of diversity jurisdiction
A
Citizenship is determined by where the parties are domiciled at the commencement of the lawsuit.
5
Q
How is domicile determined for an individual
A
An individuals domicile is their true fixed and permanent home. It requires physical presence plus an intent to remain for the indefinite future.
6
Q
How is a corporations domicile determined
A
Corporation is domiciled where it is incorporated and where it has its principal place of business
7
Q
What does personal jurisdiction refer to
A
Personal jurisdiction refers to the courts power to bring a person or entity into its adjudicative process
8
Q
How is federal court personal jurisdiction determined
A
Federal court personal jurisdiction is determined under the same standard used in state court
9
Q
What are the two sources for personal jurisdiction
A
The two sources for personal jurisdiction are traditional and statutory (long arm statutes must be constitutional)
10
Q
What are the traditional grants for personal jurisdiction
A
The traditional grants for personal jurisdiction include physical presence at the time of personal service domicile and express consent
11
Q
When an applicable long arm statute reaches a particular defendant what must you ask
A
Is the application of the long arm statute constitutional
12
Q
What is the test for determining if the application of the long arm statute is constitutional
A
The defendant must have certain minimum contacts with the forum state such that maintenance of the suit does not offend traditional notions of Fair play and substantial justice
13
Q
What is needed for minimum contacts?
A
First the defendant must have purposefully availed her self to the benefits and protections of the forum state. Second it must have been foreseeable that the defendant would be sued in the forum state.
14
Q
What is needed to satisfy the fair play and substantial justice requirement
A
If the claim arises out of the defendants contact with the forum state, the court will likely find personal jurisdiction over the defendant. If the claim does not arise out of the defendants contact with the forum state the threshold for a minimum contacts is higher the standard for general personal jurisdiction used to be systemic and continuous contacts in the forum more recently the supreme court of the United States has tightened the standard holding that general personal jurisdiction can only exist if the defendant feels at home in the forum state.
15
Q
How do you determine if a defendant feels at home in the form state
A
A corporation feels at home in its state of incorporation and principal place of business. Consider the following three issues when considering whether an individual defendant is at home in the forum State. One: defendant can show that the forum is so gravely inconvenient that she will be at a severe disadvantage in litigation. Two: will the plaintive be able to obtain relief in another forum. Three: does the forum state have an interest in providing a forum for its residents and protecting their health and safety.
16
Q
Methods of service
A
Personal service, Substitute service at defendants usual place of abode on a person of suitable age and discretion who resides there, service Upon an agent of the defendant who is authorized to receive service of process, rarely service by meaningful publication, waiver by mail if notice is mailed first class with prepaid postage to the defendant and the defendant returns the waiver within 30 days. In federal court the plaintiff may also use any methods of service permitted under the law of the state where the federal court sits or where service is effected.
17
Q
For individuals where is venue proper
A
Venue is proper where all defendants reside or where a substantial portion of the claim arose.
If multiple defendants reside in different districts in the same state then venue is proper in any district where one resides. A defendant resides where the defendant is domiciled.
If there is no district in which the action may otherwise be brought then where there is diversity jurisdiction venue is proper in a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced and where there is a federal question jurisdiction venue is proper in a judicial district in which any defendant may be found
18
Q
Where is venue proper for a corporation
A
For corporations venue is proper and any district where the corporation is subject to personal jurisdiction
19
Q
Is there a presumption in favor of the plaintiffs choice of venue
A
Yes. There is a presumption in favor of the plaintiffs choice Of venue so transfer is the exception.
20
Q
What are the requirements for transferee court
A
The transferee court must be a court where the action could have originally been brought i.e. subject matter jurisdiction, personal jurisdiction, and proper venue
21
Q
What is the doctrine of forum non-conveniens
A
The doctrine of forum non-conveniens Allows a court to dismiss an action if a far more appropriate and convenient forum exists elsewhere
22
Q
What must a court do if original venue is improper
A
The court may grant the dismissal or order venue be transferred if transfer is in the interest of justice
23
Q
When venue is transferred will the choice of law provision of the transferee or transferor Court apply
A
When venue is transferred the choice of law provisions of the transferor court will apply
24
Q
When can a defendant remove a federal court case that was originally filed in state court
A
Cases that were originally filed in state court can be removed to federal court by the defendant but only if the case could have originally been filed in federal court
25
If there is more than one defendant must all the defendants join in the removal petition
Yes there is more than one defendant all defendant must join and the removal petition
26
How do filed counter claims affect a defendants right to remove the case to federal court
A defendant who filed a permissive counter claim in state court most likely will be deemed to have waived the right to remove the case to federal court while A defended who filed a compulsory counter claim in state court will generally not be deemed to have waived the right to remove the case
27
Can A defendant remove the case to any federal district court
Defendant can only remove the case to the federal district court that geographically embraces the state court
28
Can a diversity case be removed when a defendant is a resident of the state in which the action was brought
Diversity cases cannot be removed when any defendant is a resident of the state in which the action was brought
29
What happens if a case is removed to federal court and a state law claim does not fall within the original or supplemental jurisdiction of the federal court Or the claim has been declared non-removable
The federal judge must sever the state law claim and remand to state court
30
What is the proper procedure for removal
The defendant must file a notice of removal in federal court within 30 days after receiving notice that the case is removable stating the grounds signing under rule 11 attaching all documents served on defendant copy all adverse parties and filing a copy of the notice in state court. There is a one-year limit for diversity cases.
31
What law does a federal courts sitting in diversity jurisdiction apply
A federal court sitting and diversity jurisdiction must apply state substantive law and federal procedural law
32
What will a court consider when it is unclear whether a law is substantive or procedural (Erie)
If state law substantially determines the outcome of litigation, it is substantive law and must be applied by federal court sitting in diversity jurisdiction. A court will balance state interest versus federal interest in application of a particular rule. Courts seek to avoid forum shopping so a judge will consider whether application of a particular rule will promote forum shopping.
33
What do complaints require
Most complaints require only a statement of subject matter jurisdiction, a short and plain statement of a claim showing entitlement to relief, and demand for relief sought. However certain special matters must be pleaded with particularity if they are to be raised at trial. The special matters include fraud, mistake, and special damages.
34
When must a plaintive serve summons and complaint
A plaintiff must serve summons and complaint within 90 days of filing a cause of action
35
What must a defendant do in the answer
In the answer the defendant must respond to the allegations of the complaint. The defendant must admit deny or state a lack of sufficient information to admit or deny. The defendant must also raise affirmative defenses. A defendant may also plead a counter claim and sometimes must, may plead a cross claim, and may implead a third person defendant believes is liable for all or part of plaintiffs claim.
36
When must the defendant file an answer
The defendant must file an answer within 21 days of service of process or 60 if the defendant waived formal service of process
or within 14 days of denial of a rule 12 motion
37
What can a defendant do if the complaint is ambiguous
If the complaint is ambiguous, the defendant may move for a more definite statement. A motion for a more definite statement can only be made pre-answer.
38
What if a party has included redundant, immaterial, impertinent, or scandalous material in the complaint
If a party has included redundant, immaterial, impertinent, or scandalous material in the complaint, the opposing party may move to have this material stricken from the complaint
39
Can a motion to dismiss the raised in an answer
Motions to dismiss can be raised either by motion or in the answer. Lack of subject matter jurisdiction, failure to state a claim, and failure to join an indispensable party can be raised at any time. Lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process must be included in the first response by the defendant whether motion or answer or it is waived.
40
Before trial when may a plaintiff amend a pleading
Plaintiff may amend a pleading as a matter of course once within 21 days of serving the pleading or within 21 days after service of responsive pleading or pre-answer motion. After 21 days a plaintiff needs a leave of court.
41
At trial when can a party amend a pleading
At trial a party can amend when the amendment will aid the merits. An amendment may be granted by express consent, implied consent, or by seeking leave of court to amend. A court has discretion to grant leave to amend as long is there is no display of delay or prejudice and the party is given notice and has the ability to litigate
42
What is the relation back rule for amended pleadings
Under the relation back rule for amended pleadings an amendment adding a new claim will relate back to the original filing date if the claim arose out of the conduct, transaction, or occurrence set forth in the original pleading. Additionally under the relation back rule a pleading changing the defendant will relate back if it concerns the conduct, transaction, or occurrence as original complaint, the new party knew of the suit within 90 days of the original claim, and the new party knew that but for mistake the new party would have been named originally.
43
What is rule 11
Pleadings other than discovery documents must be signed by the attorney or by the unrepresented party
44
What is the effect of a rule 11 signature
The party signing certifies that to the best of her knowledge, information, and belief formed after an inquiry reasonable under the circumstances the pleading is not being presented for any improper purpose, the claims, defenses, and other legal contention are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law, the factual contentions have or will have evidentiary support, and the denials of factual contentions are warranted by the evidence.
45
Rule 11 sanctions?
If after notice and a reasonable opportunity to respond the court determines that rule 11 has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.
The purpose of the sanctions is deterrence. The sanction may include non-monetary directives, in order to pay a penalty into court, or, is imposed on motion and warranted for affective deterrence, and order directing payment to the moving party a part or all of the reasonable attorneys fees and other expenses directly resulting from the violation.
46
Requirements for a motion for rule 11 sanctions?
A motion for sanctions must be served on the other party and the other party has 21 days to withdraw the document or fix the problem. If the party does so, then there will be no sanctions.
47
Rule 11 sanctions on court’s initiative?
On its own, the Court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated rule 11. There is no Safe harbor provision here
48
Permissive joinder?
The plaintiff may join any party if the plaintiffs claims arise out of the same transaction or occurrence and the plaintiffs claims raise a common question of law or fact
49
Compulsory joinder?
A plaintiff must join necessary parties. A party is necessary if the court cannot afford complete relief without the party, where there’s danger that the absentee will be harmed, or where there is a possibility of multiple liability.
50
What happens if necessary party is not joined?
If unnecessary party is not joined, the court may proceed or dismiss the action. The court will consider if an alternate forum is available, actual likelihood of harm, and if the court can shape relief to avoid harm.
51
When must a defendant plead a counter claim in the answer
The counter claim is compulsory if it arises out of the same transaction or occurrence
52
Cross claim
a cross claim is a claim against A co- party. The claim must arise out of the same transaction or occurrence. It is never compulsory.
53
What is impleader?
A defendant who believes that a third person is liable to her for all or part of the plaintiffs claim against the defendant may implead such a person as a third party defendant. The defendant must be claiming derivative liability, such as indemnity or contribution.
54
When must a Defendant implead
The defendant must implead within 14 days of answering the complaint or afterwards by leave of the court
55
Intervention of right?
An absentee third-party has the right to join a pending suit if disposition of the case may as a practical matter impair the third parties interest, which can be a property right or legal interest, and the absentee third party’s interest is not adequately represented.
56
Permissive intervention
Upon timely application and at the discretion of the judge, anyone may be permitted to intervene in an action if applicants claim or defense and pending case have at least one common question of law or fact and there is no undue delay or prejudice
57
When is interpleader used
Interpleader is used when a stakeholder has property and two or more others claim ownership. Interpleader forces all claimants into a single lawsuit because the plaintive does not want to be exposed to multiple liability or inconsistency.
58
What does statutory interpleader require?
Statutory interpleader requires minimal diversity and an amount and controversy of $500 or more. Venue can be in any district where any claimant resides, And service of process is nationwide. For minimal diversity only one claimant must be diverse from one other claimant.
59
What is needed for rule 22 interpleader
Rule 22 interpleader requires complete diversity an amount in controversy more than $75,000. Normal rules apply for venue and service of process
60
What are the requirements for a class action
The requirements for a class action are numerosity, commonality, adequacy, and typicality.
61
What are the three types of class actions that are maintainable under the federal rules of civil procedure?
The three types of class actions that are maintainable under the federal rules of civil procedure are anti-prejudice class actions, injunctive and declaratory relief class actions, and damage class action.
62
Can members opt out of a class action
Members cannot opt out of anti-prejudice class actions. Members cannot opt out of injunctive and declaratory relief class actions. Members can opt out of damage class actions.
63
In class action suits, is notice to class required?
It is discretionary for anti-prejudice and injunctive and Declaratory relief class action. For damage class actions, a court must direct notice to class members using the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must notify members of their ability to opt out and to preserve right to sue on their own. Notice must also inform members of the binding nature of the class action judgment. Notice is a litigation cost paid by the representative of the class.
64
When and how must court certify a class?
The court must order certification or not at the earliest practical time. The court must define class and issues and must appoint class counsel. Certification may be altered or withdrawn anytime before final judgment.
65
What are the jurisdictional requirements under the class action fairness act
The act gives a federal court original jurisdiction over a class action suit if there is minimal diversity and the aggregated claims of the class exceed 5 million
66
When must a District Court decline jurisdiction under the class action fairness act?
The District Court must decline jurisdiction under the class action fairness act if more than 2/3 of proposed class members are citizens of the state where action is filed, the defendant from whom significant relief sought is a citizen of the state where the action is filed, and the principal injuries occurred in a state or the action as well
67
When may a federal court decline jurisdiction under the class action fairness act
A federal court may declined your addiction under the class action federal fairness act if more than 1/3 but less than 2/3 of proposed members are citizens of the state where the action was filed and the primary defendants are also citizens of the state for the action was filed
68
What is required for class action settlement and dismissals
The court must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class action. The court must also direct notice in a reasonable manner to all class members who would be bound by proposed settlement, dismissal, or compromise. The court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members of a damaged class who had an earlier opportunity to request exclusion but did not do so.
69
Explain the numerosity requirement for a class action
The class must be too numerous for joinder to be practical. Between 25 and 40 is the gray area.
70
What does the scope of discovery include?
The scope of discovery includes anything non-privileged and relevant to the claim or defense and proportional to the needs of the case.
71
What does the work product doctrine and protect
The work product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel. Work product does not have to be generated by an attorney. Statements by witnesses can be held discoverable if there is a substantial need and the information is not otherwise available.
72
What are the requirements for an objection to discovery
Objections must state with specificity the grounds for objection and whether any responsive materials are being withheld.
73
Initial disclosures?
Within 14 days of a rule 26F conference, unless court order or stipulation of the parties requires otherwise parties must produce a list of relevant witnesses, documents supporting claims or defenses, computation of damages, relevant insurance policies.
74
Pre-trial required discovery?
Parties must get detailed information about trial evidence including documents and identification of witnesses to testify (either live or by deposition) no later than 30 days before trial.
75
When are discovery tools available?
Discovery tools are only available after the rule 26F conference unless the court orders or the parties stipulate otherwise.
76
What is a deposition?
A deposition is a witness out of court testimony that is reduced to writing for later use in court or for discovery purposes. The deponent gives sworn oral answers to questions by counsel. Both parties and non-parties can be deposed.
77
Is a subpoena required for depositions?
A non-party is not required to attend a deposition unless the non-party was subpoenaed. No subpoena is required for a party notice of the deposition properly served on a party is sufficient.
78
How many depositions can a party take without court approval or stipulations by the parties?
10
79
What is the time limit for deposition?
Depositions are limited to one day of seven hours unless the court orders or the parties stipulate otherwise. The court must however allow additional time if needed to fairly examined the deponent or the deponent, another person, or any other circumstance impedes or delays the examination.
80
May experts be deposed?
An expert whose opinions may be presented at trial may be deposed by the opposing party. An expert retained in anticipation of litigation who will not testify at trial may not be deposed by the opposing party unless there is an exceptional need.
81
How far may a non party be required to travel for a deposition?
A non-party cannot be required to travel more than 100 miles from either her residence or her regular place of business for a deposition
82
What are interrogatories
Interrogatories are questions written by one party and sent to another party to answer interrogatories can never be used against a non-party.
83
How long does a party have to respond to or object to an interrogatory
A party must answer in writing under oath within 30 days
84
What is a request to produce
A party request another party or a non-party to produce physical material or to permit entry into designated property for inspection
85
Are subpoenas required for request to produce
Subpoenas are required when requesting a non-party to produce
86
When must a party respond to a request to produce
A party must either produce the material or state an objection to the request within 30 days of service or within 30 days of the first 26F conference if the request was served early.
87
What are the requirements for the request of a physical or mental examination
A court order is required and will be issued on a showing that one parties health is an actual controversy and there is good cause for the examination
88
What is a request for admission
A request for admission is a request by one party to another party to admit truth of any discoverable matter. It’s commonly used to authenticate documents. Request for admission can never be used against a non-party.
89
When must a party respond to a request for admission and how
A party must respond within 30 days and admit, Deny, or state lack of information.
90
When must a party make disclosures about experts
A party must make disclosures about experts at the time and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made at least 90 days before the date set for trial or for the case to be ready for trial. There is an exception for limited purpose experts. Only 30 days is required for limited purpose experts.
91
What disclosures must a party make about experts?
A party must identify experts who must be used at trial. A party must also include that data, if any, used by the expert and the experts qualifications, including a list of all publications authored in the previous 10 years. Party must also provide a list of other cases and a statement of the compensation to be paid for the study and testimony in the case.
92
Does rule 11 govern discovery?
No
93
Certification required for discovery?
Every request must be signed by an attorney. The signature certifies that the request is warranted, there is no improper purpose, and the request is not unduly burdensome.
Substantive answers must be signed under oath.
94
What must a party seeking discovery sanctions prove to the court
A party seeking sanctions must prove to the court that she made a good faith effort to obtain the information without the courts involvement
95
When are sanctions minimal
Sanctions are minimal when the party receiving the discovery request answers some but objects to others and objections are not upheld by the court
96
When are there severe sanctions with respect to discovery
If a party fails to comply with an order compelling discovery it’s considered a total violation and sanctions are much more severe
97
What sanctions are available when there is a total violation of a discovery order
The following sanctions are available when there’s a total violation: treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination, matters or other designated facts are taken as established for the purposes of the action, striking pleadings in whole or in part, prohibiting the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters in evidence, dismissing the action or proceeding in whole or in part, rendering a default judgment against the disobedient party.
98
What if a party fails to take reasonable steps to preserve electronically stored information that should have been preserved in anticipation or conduct of litigation with the results that the information is lost and cannot be restored or replaced through additional discovery
Upon finding prejudice to another party from loss of the information, the court may order measures no greater than necessary to cure the prejudice. Only upon finding that the party acted with the intent To deprive another party of the information’s use in the litigation, The court may presume that the loss information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable to the party, or dismiss the action or enter a default judgment.
99
May a plaintiff voluntarily dismiss her case without prejudice
A plaintiff may voluntarily dismiss her case once without prejudice by filing a notice of dismissal before the defendant serves an answer or moves for summary judgment
100
When may a court dismiss a case in voluntarily?
A court may dismiss a case involuntarily when a party fails to comply with the court order, pursue action, or a motion to dismiss is granted.
101
What does with prejudice mean
With prejudice means that the plaintive may not reassert her claim again i.e. doctrine of preclusion and will apply
102
What is required for a default judgment by clerk
A clerk can enter a default judgment only if there is no response by defendant, the award sought is for monetary damages, plaintiff has given an affidavit of the amount owed by defendant and the defendant is not a minor or incompetent
103
What are the two ways of getting a default judgment
By clerk and by court
104
What is the notice Requirement for a default judgment by court
On motion of the party seeking the default judgment, the court may conduct a hearing regarding the amount of damages upon seven days notice to the party against whom judgment is sought
105
How can a plaintiff obtain a default
A plaintiff can obtain a default by demonstrating to the clerk that the defendant failed to respond. The plaintiff cannot recover just from obtaining default.
106
May a defendant obtain relief after default and before default judgment?
A defendant may obtain relief from default before default judgment by making a showing of good cause and a viable defense
107
Make a defendant obtain relief From a default judgment
The defendant may obtain relief by making a showing of good cause and a viable defense.
108
What is a motion to dismiss based on failure to state a claim
Before the answer a defendant makes a motion to dismiss based on failure by plaintiffs estate a claim upon which relief can be granted. The court will look only to what has been alleged by the plaintiff in the complaint and will assume everything alleged is true and will determine whether or not the plaintiff would win in judgment against the defendant
109
What is a motion for judgment on the pleadings
A motion for judgment on the pleadings is the same as failure to state a claim except that it is made after the defendant has answered the plaintiffs complaint
110
When is summary judgment proper
Summary judgment is proper where there is no triable issue of material fact and after viewing evidence in the light most favorable to the nonmoving party the court concludes that no reasonable trier of fact could find in favor of the non-moving party
111
What can a court look at with a motion for summary judgment
Unlike with the motion to dismiss for failure to state a claim or a motion for judgment on the pleadings, the court is allowed to pierce the pleadings and look at the evidence. The evidence must be admissible.
112
When may a party bring a motion for summary judgment?
A motion may be brought any time up until 30 days after the close of discovery
113
When must a party file a response to a motion for summary judgment
Opposing party must file a response within 21 days of being served with the motion
114
When must an optional response to the opposing parties response be filed
14 days
115
Timing of Rule 26f conference?
Except in a proceeding exempted from initial disclosure or when the court orders otherwise, the parties must confirm as soon as practicable and, in any event, at least 21 days before scheduling conference is to be held or a scheduling order is due
116
What are the requirements for the rule 26F conference and discovery plan
The attorneys of record and all unrepresented parties are jointly responsible for arranging the rule 26F conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan
117
A pre-trial conference may be conducted for several reasons. After the conference, the judge or magistrate issues in order. When may a pretrial order be amended?
The court may modify the order issued after a final pre-trial conference to prevent manifest injustice.
If there is variance at trial without objection there is implied consent.
118
What is a temporary restraining order?
A temporary restraining order is an equitable remedy that may be issued ex parte (without notice) to prevent irreparable harm until the court has an opportunity to rule on a motion for a preliminary injunction. A temporary restraining order expires within 14 days if not earlier.
119
What is a preliminary injunction?
A preliminary injunction is an equitable remedy that enjoys a person from engaging in specified behavior, or requires a party to engage in specified behavior, during the pendency of the action.
120
What are the factors that the court will consider for granting a preliminary injunction
The significance of the threat of irreparable harm to the plaintive if the injunction is not granted, the balance between this harm and the injury that granting the injunction would inflict on the defendant, the probability that the plaintiff will succeed on the merits, and the public interest.
121
What is a pre-judgment writ of replevin
A pre-judgment writ of replevin is available to a movement who Demonstrates a superior right of possession to personal property and the likelihood of success on the merits of the underlying claim to possession
122
How does a party preserve the right to a jury trial in civil actions at common law
To preserve the right to a jury trial in civil actions at common law, the party must demand in writing no later than 14 days after being served with the last pleading raising questions of law. A jury trial demand may be included in a pleading.
123
Is there a right to a jury in a civil action involving both legal and equitable remedies
There is a right to a jury in a civil action involving both legal and equitable remedies only to determine questions of law. The judge decides the equitable issues after the legal issues are settled by the jury.
124
Is there a right to a jury trial in civil actions at common law
The seventh amendment protects the right to a jury trial in civil actions at common law. There is no right to jury trial and civil actions at equity.
125
Number of jurors?
There is no constitutional right to 12 jurors, but there must be at least six jurors unless the parties stipulate otherwise. 12 jurors is the maximum.
126
Must a jury verdict unanimous in a civil action
Unless the party stipulate otherwise, the verdict must be unanimous and be returned by a jury of at least six members
127
Who conducts voir dire in federal court
The judge
128
Exclusion of prospective jurors
A lawyer may exclude a prospective juror by exercising any of the lawyers three peremptory challenges for any reason other than race or gender.
A lawyer may exclude a prospective juror by exercising unlimited challenges for cause.
129
When an action is tried on the facts without a jury or with an advisory jury, what must the court do with respect to findings and conclusions
The court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or memorandum of decision filed by the court. The court is not required to state findings or conclusions when ruling on a motion under rule 12 or, unless these rules provide otherwise, on any other motion.
130
What is a motion for judgment as a matter of law, a.k.a. directed verdict?
A motion for judgment as a matter of law takes the case away from the jury.
131
What is the standard for a motion as a matter of law
A motion for judgment as a matter of law is granted if no reasonable person could differ as to the outcome of the trial. Evidence viewed in light most favorable to non-moving party.
132
When can a party move for judgment as a matter of law?
The defendant can after the plaintiff present her case or after all the evidence has been presented. The plaintive can only after all the evidence has been presented because the defendant presents second.
133
What is the standard for a renewed motion for judgment as a matter of law, a.k.a. judgment notwithstanding the verdict
A renewed motion for judgment as a matter of law is granted if no reasonable jury could have reached the verdict entered by the jury. This is also termed the no substantial evidence standard, applied only when there is no substantial evidence to support some element of the claim. Substantial meaning more than a scintilla.
134
How can a party reserve the right to renew judgment as a matter of law
The party must have moved for judgment as a matter of law before the case goes to jury to preserve the right to renew judgment as a matter of law
135
When must a party file a renewed motion for judgment as a matter of law
Within 28 days after judgment is entered
136
When must a party File a motion for a new trial
Within 28 days after judgment entered
137
What are the grounds for a motion for new trial
Misconduct by judge, adverse party, jury, or juror.
Newly discovered evidence that could not have been obtained with due diligence during original trial.
Damages that are excessive or in adequate. If the judge thinks the award is excessive, that judge can tell Plaintive to accept less or face a new trial. Plaintiff must be given the choice.
Erroneous jury instructions.
Verdict is a miscarriage of justice.
Prejudicial error.
Partial new trial.
138
Motion to set aside judgment
In federal court, the court may also set aside a final judgment anytime if there is a clerical error, within one year if there is mistake or excusable neglect or fraud, misrepresentation, or other misconduct by adverse party, or within a reasonable time if there is newly discovered evidence or the judgment is void.
139
What are the three different types of verdicts the judge can ask the jury to render
General verdict, special verdict, general verdict with interrogatories
140
In general when can a judgment be appealed
In general, a case can only be appealed after a final judgment on the merits of the entire case in the lower court
141
Can A denial of a motion to dismiss be appealed
No
142
When must an appeal to a federal court of appeals be filed
Notice of appeal must be filed within 30 days of entry of final judgment
143
When must a notice of appeal be filed with the Supreme Court of the United States
I notice to appeal must be filed within 90 days of entry of judgment in the court of appeals
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Can a District Court direct entry of a final judgment as to a claim
A District Court may direct entry of a final judgment as to the claim if the District Court expressly determines that there is no just reason for delay
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What is an interlocutory appeal
And interlocutory appeal is an appeal of a ruling by a trial court that is made before the trial itself has concluded, i.e. before a final judgment on the merits
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What interlocutory appeals are allowed as of right
Order denying arbitration
Preliminary injunction
Appointment of receiver
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What is the Interlocutory appeals act
The act grants discretion to the courts of appeal to review interlocutory orders in civil Cases where the district judge states in The order that a controlling question of law is in doubt and that the immediate resolution of the issue will materially advance the ultimate determination of litigation. The court of appeals must agree to hear the appeal.
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Collateral order doctrine?
The collateral order doctrine permits appeal of those district court decisions that are conclusive, that resolved important questions completely separate from the merits, and that would render such important questions effectively unreviewable on appeal from final judgment in the underlying action. Examples include state sovereign immunity under the 11th amendment, government official qualified immunity, foreign sovereign immunity, and presidential immunity.
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Can an order granting or denying the certification of a class action be appealed
A notice of appeal must be filed in the US Court of Appeals within 14 days of the certification. The US Court of Appeals has the discretion to review an order granting or denying the certification of a class action.
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What are the standards of review on appeal
The appellate court reviews questions of law de Novo. The appellate court only disturbs of finding a fact if it is clearly erroneous. The appellate court only disturbs a lower courts exercise of judicial discretion if the lower court clearly abuse that discretion.
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When must a defendant raise claim preclusion or issue preclusion
Claim preclusion and issue preclusion are affirmative defenses, so the defendant must raise them in the answer
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What law governs the issues of res judicata and collateral estoppel
The law of the system that presided over the original action governs the issues of res judicata and collateral estoppel. So, if the first case was in federal court but the second case is in state court, then federal law of claim preclusion and issue preclusion would apply.
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Elements of res judicata
In order to invoke the doctrine of res judicata, three elements must be satisfied. First, the claimant issue must be related to the same transaction or occurrence of a previously litigated claim. Second, it must involve a claim by the same claimant against the same defendant as the previously litigated claim. Finally, the previously litigated claim must have resulted in a final judgment on the merits. Exceptions to this final element include jurisdiction, venue, indispensable parties, statute of limitations.
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What is res judicata called when the plaintive won the first case
Merger
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What does res judicata called when the defendant won the first case
Bar
156
What are the elements of collateral estoppel/issue preclusion
Collateral estoppel requires 5 elements. First, it must involve a previously litigated issue of law or fact. Second, the previously litigated issue must have been actually litigated, and third, it must have been litigated to a final judgment on the merits. The issue must’ve been a central issue in the previous litigation, and at least one of the parties from the previous litigation must be present.
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What is non-mutual defensive collateral estoppel
This happens when a defendant is sued by a losing plaintive. It is permitted in federal courts if the plaintive had a full and fair opportunity to litigate the issue in the first case.
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What is offensive non-mutual collateral estoppel
A non party Plaintiff Sues a defendant who has previously lost on an issue.
Permitted if fair. To be fair, the defendant must have had a full and fair opportunity to litigate, multiple suits were foreseeable, the plaintive could not have joined the original action, and there is no inconsistent judgments on the record.
Dangerous and negligently made pill example.
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What is the test for supplemental jurisdiction
The claim must share a common nucleus of operative fact with the claim that initially satisfied federal subject matter jurisdiction and got the case into federal court. The test is always satisfied if the additional claims arise out of the same transaction or occurrence.
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What is pendant jurisdiction
A plaintiff asserts a jurisdictionally proper claim and tacks another claim that does not have an independent basis for jurisdiction. There is one limitation to a plaintiffs use of supplemental jurisdiction. In diversity cases pendant jurisdiction is prohibited when the additional claim would destroy complete diversity.
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What is ancillary jurisdiction
The defendant or other party tacks on another claim but does not have an independent basis for jurisdiction. There is no limitation on supplemental jurisdiction for related claims asserted by defendants or other additional parties that do not have an independent basis for jurisdiction.
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When may a federal court decline to exercise supplemental jurisdiction
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For any of the following reasons:
State law claim predominates
Complex claim of state law
Original claim dismissed
Other compelling reasons or exceptional circumstances
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