Civ Pro

Question 1

Demanding a Jury Trial

Answer 1

A party may demand a jury trial by:

(1) Serving all parties with a written jury demand no later than 14 days after the last pleading directed to the issue is served, and
(2) Filing the demand with the court within a reasonable time after service.

Or

(3) Amending its original complaint once as as matter of course within 21 days after serving the complaint.

Question 2

Appellate Standards of Review

Answer 2

(1) De Novo (no deference to judge):
- Applies to LEGAL ISSUES
- Will be reversed if appellate court reasonably believes judge misinterpreted the law.

(2) Clearly Erroneous (high deference to judge):
- Applies to FACTUAL ISSUES in BENCH TRIALS (eg, witness credibility, factual determinations)
- Will be reversed if no reasonable judge would have made finding.

(3) Substantial Evidence: (high deference to judge)
- Applies to FACTUAL issues in jury trials (eg, witness credibility, jury’s verdict)
- Reversed if reasonable jury would not have made finding.

(4) Abuse of Discretion: (High deference to Judge)
- Applies to issues of judge’s discretionaly rulings (eg, admissibility of evidence, grant/denial of new trial)
- Reverse only if decision was unreasonable/arbitrary

Question 3

Deadline to Serve an Answer

Answer 3

21 days after served with process

OR

60 days after waiver request sent (if D is in USA)
Or
90 days after waiver request sent if D in foreign country

Question 4

Default Judgment Process

Answer 4

(1) Defendant fails to file a timely answer (generally 21 days afrer service of process received).
(2) Clerk of Court enters default on the record.
(3) Court or Clerk of Court enters default judgment.
* Court can enter default judgment even if the defendant has appeared by motion or otherwise acting before the court. HOWEVER, if defendant has appeared, the defendant must be served with written notice of the plaintiff’s application for default judgment AT LEAST SEVEN (7) DAYS BEFORE A HEARING ON THE MATTER.

Question 5

Timing to Filed Motion for Judgment as a Matter of Law (and Renewed Motion)

Answer 5

May be filed after nonmovant presents it case but before case is submitted to jury.

May be renewed within 28 days after entry of final judgment.

Question 6

Time to File a MSJ

Answer 6

Motion for Summary Judgment can be filed up to 30 days after close of discover OR time set by local rules or court

Question 7

Standard for Granting an MSJ

Answer 7

No genuine issue of material fact and the movant is entitled to judgment as a matter of law.

All evidence must be viewed in light most favorable to nonmovant

Question 8

Collateral Estoppel

Answer 8

Issue preclusion - prevents subsequent litigation of the same issue actually litigated on an earlier claim.

Two types:

(1) Mutual
(2) Nonmutual

Mutual = issue preclusion in a second action ASSERTED BY PARTIES to the first action by other parties to the first action

Nonmutual = issue preclusion in a second action ASSERTED BY NONPARTIES to the first action against parties to the first action.

*Remember: Nonmutual = Nonparties

Question 9

Impleader

Answer 9

Defendant may add a non-party to the suit through impleader.

However, third party complaint must be based on derivative liability - ie, it must assert that the non-party is liable to the DEFENDANT - NOT THE PLAINTIFF - for either all (ie, indemnity) or part (ie, contribution) of the claim.

Third party complaint should therefore be dismissed if it asserts that nonparty is directly liable to Plaintiff, or liable to defendant but for another claim.