Civ Pro

Question 1

In federal court subject matter jurisdiction can be based on

Answer 1

A federal question properly pleaded in the complaint or on diversity of citizenship jurisdiction

Question 2

What is needed for federal question jurisdiction

Answer 2

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

Question 3

What is needed for diversity jurisdiction

Answer 3

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

Question 4

How/when is citizenship determined for purposes of diversity jurisdiction

Answer 4

Citizenship is determined by where the parties are domiciled at the commencement of the lawsuit.

Question 5

How is domicile determined for an individual

Answer 5

An individuals domicile is their true fixed and permanent home. It requires physical presence plus an intent to remain for the indefinite future.

Question 6

How is a corporations domicile determined

Answer 6

Corporation is domiciled where it is incorporated and where it has its principal place of business

Question 7

What does personal jurisdiction refer to

Answer 7

Personal jurisdiction refers to the courts power to bring a person or entity into its adjudicative process

Question 8

How is federal court personal jurisdiction determined

Answer 8

Federal court personal jurisdiction is determined under the same standard used in state court

Question 9

What are the two sources for personal jurisdiction

Answer 9

The two sources for personal jurisdiction are traditional and statutory (long arm statutes must be constitutional)

Question 10

What are the traditional grants for personal jurisdiction

Answer 10

The traditional grants for personal jurisdiction include physical presence at the time of personal service domicile and express consent

Question 11

When an applicable long arm statute reaches a particular defendant what must you ask

Answer 11

Is the application of the long arm statute constitutional

Question 12

What is the test for determining if the application of the long arm statute is constitutional

Answer 12

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

Question 13

What is needed for minimum contacts?

Answer 13

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.

Question 14

What is needed to satisfy the fair play and substantial justice requirement

Answer 14

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.

Question 15

How do you determine if a defendant feels at home in the form state

Answer 15

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.

Question 16

Methods of service

Answer 16

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.

Question 17

For individuals where is venue proper

Answer 17

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

Question 18

Where is venue proper for a corporation

Answer 18

For corporations venue is proper and any district where the corporation is subject to personal jurisdiction

Question 19

Is there a presumption in favor of the plaintiffs choice of venue

Answer 19

Yes. There is a presumption in favor of the plaintiffs choice Of venue so transfer is the exception.

Question 20

What are the requirements for transferee court

Answer 20

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

Question 21

What is the doctrine of forum non-conveniens

Answer 21

The doctrine of forum non-conveniens Allows a court to dismiss an action if a far more appropriate and convenient forum exists elsewhere

Question 22

What must a court do if original venue is improper

Answer 22

The court may grant the dismissal or order venue be transferred if transfer is in the interest of justice

Question 23

When venue is transferred will the choice of law provision of the transferee or transferor Court apply

Answer 23

When venue is transferred the choice of law provisions of the transferor court will apply

Question 24

When can a defendant remove a federal court case that was originally filed in state court

Answer 24

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

Question 25

If there is more than one defendant must all the defendants join in the removal petition

Answer 25

Yes there is more than one defendant all defendant must join and the removal petition

Question 26

How do filed counter claims affect a defendants right to remove the case to federal court

Answer 26

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

Question 27

Can A defendant remove the case to any federal district court

Answer 27

Defendant can only remove the case to the federal district court that geographically embraces the state court

Question 28

Can a diversity case be removed when a defendant is a resident of the state in which the action was brought

Answer 28

Diversity cases cannot be removed when any defendant is a resident of the state in which the action was brought

Question 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

Answer 29

The federal judge must sever the state law claim and remand to state court

Question 30

What is the proper procedure for removal

Answer 30

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.

Question 31

What law does a federal courts sitting in diversity jurisdiction apply

Answer 31

A federal court sitting and diversity jurisdiction must apply state substantive law and federal procedural law

Question 32

What will a court consider when it is unclear whether a law is substantive or procedural (Erie)

Answer 32

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.

Question 33

What do complaints require

Answer 33

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.

Question 34

When must a plaintive serve summons and complaint

Answer 34

A plaintiff must serve summons and complaint within 90 days of filing a cause of action

Question 35

What must a defendant do in the answer

Answer 35

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.

Question 36

When must the defendant file an answer

Answer 36

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

Question 37

What can a defendant do if the complaint is ambiguous

Answer 37

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.

Question 38

What if a party has included redundant, immaterial, impertinent, or scandalous material in the complaint

Answer 38

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

Question 39

Can a motion to dismiss the raised in an answer

Answer 39

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.

Question 40

Before trial when may a plaintiff amend a pleading

Answer 40

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.

Question 41

At trial when can a party amend a pleading

Answer 41

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

Question 42

What is the relation back rule for amended pleadings

Answer 42

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.

Question 43

What is rule 11

Answer 43

Pleadings other than discovery documents must be signed by the attorney or by the unrepresented party

Question 44

What is the effect of a rule 11 signature

Answer 44

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.

Question 45

Rule 11 sanctions?

Answer 45

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.

Question 46

Requirements for a motion for rule 11 sanctions?

Answer 46

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.

Question 47

Rule 11 sanctions on court’s initiative?

Answer 47

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

Question 48

Permissive joinder?

Answer 48

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

Question 49

Compulsory joinder?

Answer 49

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.

Question 50

What happens if necessary party is not joined?

Answer 50

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.

Question 51

When must a defendant plead a counter claim in the answer

Answer 51

The counter claim is compulsory if it arises out of the same transaction or occurrence

Question 52

Cross claim

Answer 52

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.

Question 53

What is impleader?

Answer 53

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.

Question 54

When must a Defendant implead

Answer 54

The defendant must implead within 14 days of answering the complaint or afterwards by leave of the court

Question 55

Intervention of right?

Answer 55

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.

Question 56

Permissive intervention

Answer 56

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

Question 57

When is interpleader used

Answer 57

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.

Question 58

What does statutory interpleader require?

Answer 58

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.

Question 59

What is needed for rule 22 interpleader

Answer 59

Rule 22 interpleader requires complete diversity an amount in controversy more than $75,000. Normal rules apply for venue and service of process

Question 60

What are the requirements for a class action

Answer 60

The requirements for a class action are numerosity, commonality, adequacy, and typicality.

Question 61

What are the three types of class actions that are maintainable under the federal rules of civil procedure?

Answer 61

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.

Question 62

Can members opt out of a class action

Answer 62

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.

Question 63

In class action suits, is notice to class required?

Answer 63

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.

Question 64

When and how must court certify a class?

Answer 64

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.

Question 65

What are the jurisdictional requirements under the class action fairness act

Answer 65

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

Question 66

When must a District Court decline jurisdiction under the class action fairness act?

Answer 66

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

Question 67

When may a federal court decline jurisdiction under the class action fairness act

Answer 67

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

Question 68

What is required for class action settlement and dismissals

Answer 68

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.

Question 69

Explain the numerosity requirement for a class action

Answer 69

The class must be too numerous for joinder to be practical. Between 25 and 40 is the gray area.

Question 70

What does the scope of discovery include?

Answer 70

The scope of discovery includes anything non-privileged and relevant to the claim or defense and proportional to the needs of the case.

Question 71

What does the work product doctrine and protect

Answer 71

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.

Question 72

What are the requirements for an objection to discovery

Answer 72

Objections must state with specificity the grounds for objection and whether any responsive materials are being withheld.

Question 73

Initial disclosures?

Answer 73

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.

Question 74

Pre-trial required discovery?

Answer 74

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.

Question 75

When are discovery tools available?

Answer 75

Discovery tools are only available after the rule 26F conference unless the court orders or the parties stipulate otherwise.

Question 76

What is a deposition?

Answer 76

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.

Question 77

Is a subpoena required for depositions?

Answer 77

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.

Question 78

How many depositions can a party take without court approval or stipulations by the parties?

Answer 78

10

Question 79

What is the time limit for deposition?

Answer 79

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.

Question 80

May experts be deposed?

Answer 80

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.

Question 81

How far may a non party be required to travel for a deposition?

Answer 81

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

Question 82

What are interrogatories

Answer 82

Interrogatories are questions written by one party and sent to another party to answer interrogatories can never be used against a non-party.

Question 83

How long does a party have to respond to or object to an interrogatory

Answer 83

A party must answer in writing under oath within 30 days

Question 84

What is a request to produce

Answer 84

A party request another party or a non-party to produce physical material or to permit entry into designated property for inspection

Question 85

Are subpoenas required for request to produce

Answer 85

Subpoenas are required when requesting a non-party to produce

Question 86

When must a party respond to a request to produce

Answer 86

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.

Question 87

What are the requirements for the request of a physical or mental examination

Answer 87

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

Question 88

What is a request for admission

Answer 88

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.

Question 89

When must a party respond to a request for admission and how

Answer 89

A party must respond within 30 days and admit, Deny, or state lack of information.

Question 90

When must a party make disclosures about experts

Answer 90

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.

Question 91

What disclosures must a party make about experts?

Answer 91

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.

Question 92

Does rule 11 govern discovery?

Answer 92

No

Question 93

Certification required for discovery?

Answer 93

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.

Question 94

What must a party seeking discovery sanctions prove to the court

Answer 94

A party seeking sanctions must prove to the court that she made a good faith effort to obtain the information without the courts involvement

Question 95

When are sanctions minimal

Answer 95

Sanctions are minimal when the party receiving the discovery request answers some but objects to others and objections are not upheld by the court

Question 96

When are there severe sanctions with respect to discovery

Answer 96

If a party fails to comply with an order compelling discovery it’s considered a total violation and sanctions are much more severe

Question 97

What sanctions are available when there is a total violation of a discovery order

Answer 97

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.

Question 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

Answer 98

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.

Question 99

May a plaintiff voluntarily dismiss her case without prejudice

Answer 99

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

Question 100

When may a court dismiss a case in voluntarily?

Answer 100

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.

Question 101

What does with prejudice mean

Answer 101

With prejudice means that the plaintive may not reassert her claim again i.e. doctrine of preclusion and will apply

Question 102

What is required for a default judgment by clerk

Answer 102

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

Question 103

What are the two ways of getting a default judgment

Answer 103

By clerk and by court

Question 104

What is the notice Requirement for a default judgment by court

Answer 104

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

Question 105

How can a plaintiff obtain a default

Answer 105

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.

Question 106

May a defendant obtain relief after default and before default judgment?

Answer 106

A defendant may obtain relief from default before default judgment by making a showing of good cause and a viable defense

Question 107

Make a defendant obtain relief From a default judgment

Answer 107

The defendant may obtain relief by making a showing of good cause and a viable defense.

Question 108

What is a motion to dismiss based on failure to state a claim

Answer 108

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

Question 109

What is a motion for judgment on the pleadings

Answer 109

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

Question 110

When is summary judgment proper

Answer 110

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

Question 111

What can a court look at with a motion for summary judgment

Answer 111

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.

Question 112

When may a party bring a motion for summary judgment?

Answer 112

A motion may be brought any time up until 30 days after the close of discovery

Question 113

When must a party file a response to a motion for summary judgment

Answer 113

Opposing party must file a response within 21 days of being served with the motion

Question 114

When must an optional response to the opposing parties response be filed

Answer 114

14 days

Question 115

Timing of Rule 26f conference?

Answer 115

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

Question 116

What are the requirements for the rule 26F conference and discovery plan

Answer 116

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

Question 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?

Answer 117

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.

Question 118

What is a temporary restraining order?

Answer 118

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.

Question 119

What is a preliminary injunction?

Answer 119

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.

Question 120

What are the factors that the court will consider for granting a preliminary injunction

Answer 120

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.

Question 121

What is a pre-judgment writ of replevin

Answer 121

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

Question 122

How does a party preserve the right to a jury trial in civil actions at common law

Answer 122

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.

Question 123

Is there a right to a jury in a civil action involving both legal and equitable remedies

Answer 123

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.

Question 124

Is there a right to a jury trial in civil actions at common law

Answer 124

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.

Question 125

Number of jurors?

Answer 125

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.

Question 126

Must a jury verdict unanimous in a civil action

Answer 126

Unless the party stipulate otherwise, the verdict must be unanimous and be returned by a jury of at least six members

Question 127

Who conducts voir dire in federal court

Answer 127

The judge

Question 128

Exclusion of prospective jurors

Answer 128

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.

Question 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

Answer 129

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.

Question 130

What is a motion for judgment as a matter of law, a.k.a. directed verdict?

Answer 130

A motion for judgment as a matter of law takes the case away from the jury.

Question 131

What is the standard for a motion as a matter of law

Answer 131

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.

Question 132

When can a party move for judgment as a matter of law?

Answer 132

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.

Question 133

What is the standard for a renewed motion for judgment as a matter of law, a.k.a. judgment notwithstanding the verdict

Answer 133

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.

Question 134

How can a party reserve the right to renew judgment as a matter of law

Answer 134

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

Question 135

When must a party file a renewed motion for judgment as a matter of law

Answer 135

Within 28 days after judgment is entered

Question 136

When must a party File a motion for a new trial

Answer 136

Within 28 days after judgment entered

Question 137

What are the grounds for a motion for new trial

Answer 137

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.

Question 138

Motion to set aside judgment

Answer 138

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.

Question 139

What are the three different types of verdicts the judge can ask the jury to render

Answer 139

General verdict, special verdict, general verdict with interrogatories

Question 140

In general when can a judgment be appealed

Answer 140

In general, a case can only be appealed after a final judgment on the merits of the entire case in the lower court

Question 141

Can A denial of a motion to dismiss be appealed

Answer 141

No

Question 142

When must an appeal to a federal court of appeals be filed

Answer 142

Notice of appeal must be filed within 30 days of entry of final judgment

Question 143

When must a notice of appeal be filed with the Supreme Court of the United States

Answer 143

I notice to appeal must be filed within 90 days of entry of judgment in the court of appeals

Question 144

Can a District Court direct entry of a final judgment as to a claim

Answer 144

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

Question 145

What is an interlocutory appeal

Answer 145

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

Question 146

What interlocutory appeals are allowed as of right

Answer 146

Order denying arbitration
Preliminary injunction
Appointment of receiver

Question 147

What is the Interlocutory appeals act

Answer 147

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.

Question 148

Collateral order doctrine?

Answer 148

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.

Question 149

Can an order granting or denying the certification of a class action be appealed

Answer 149

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.

Question 150

What are the standards of review on appeal

Answer 150

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.

Question 151

When must a defendant raise claim preclusion or issue preclusion

Answer 151

Claim preclusion and issue preclusion are affirmative defenses, so the defendant must raise them in the answer

Question 152

What law governs the issues of res judicata and collateral estoppel

Answer 152

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.

Question 153

Elements of res judicata

Answer 153

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.

Question 154

What is res judicata called when the plaintive won the first case

Answer 154

Merger

Question 155

What does res judicata called when the defendant won the first case

Answer 155

Bar

Question 156

What are the elements of collateral estoppel/issue preclusion

Answer 156

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.

Question 157

What is non-mutual defensive collateral estoppel

Answer 157

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.

Question 158

What is offensive non-mutual collateral estoppel

Answer 158

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.

Question 159

What is the test for supplemental jurisdiction

Answer 159

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.

Question 160

What is pendant jurisdiction

Answer 160

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.

Question 161

What is ancillary jurisdiction

Answer 161

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.

Question 162

When may a federal court decline to exercise supplemental jurisdiction

Answer 162

For any of the following reasons:
State law claim predominates
Complex claim of state law
Original claim dismissed
Other compelling reasons or exceptional circumstances