Civ Pro

Question 1

Venue

Answer 1

About geography within certain court setting
Not constitutional or jurisdictional. Convenience for parties and courts
Where did the claim arise, geographically.

Question 2

Venue in General.—A civil action may be brought in:

Answer 2

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.

Question 3

Residents for Venue:

Answer 3

(1) - natural persons, including lawfully admitted permanent resident alien, are deemed to reside in the judicial district where they are domiciled
(2) - business entities, whether incorporated or unincorporated, are deemed to reside, if a defendant, in any judicial district where such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.
(3) - corporations/multi-district states – where state has more than one judicial district and a corporation might be subject to personal jurisdiction in more than one of them, venue is good in any judicial district that has personal jurisdiction over the corporation and, if no such district, in the district where the corporation has the most significant contacts.

Question 4

Venue for Non US residents

Answer 4

Non-domiciliary/nonresident may be sued, as a matter of venue, in any judicial district; and his joinder shall be disregarded when sued along with other defendants.

Question 5

Removed actions: location

Answer 5

Unless otherwise provided by Congress, venue in actions removed from state court will be in the judicial district (and division) embracing where the state court sits, i.e. where the action was initially pending; in other words, Sections 1391 does not apply to removed actions.

Question 6

Transfer in Federal Courts

Answer 6

For convenience of the parties and witnesses/justice, court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which the parties have consented.

If venue is improper, district court may dismiss or transfer to the proper venue where it could have been brought (with proper venue and PJ)

Question 7

Convenience to parties and witnesses. 1404a

Answer 7

In exercising discretion re transfer under these factors, plaintiff’s choice of proper forum entitled to deference and party seeking transfer (usually defendant) must use “Gilbert” factors to override plaintiff’s choice

Question 8

Choice of Law - Venue

Answer 8

Where transfer made from a district court with proper venue, transferee (receiving) district will apply the state and federal choice of law principles of transferor court (Van Dusen; Ferens)

Where transfer made from a district court that did not have proper venue, transferee (receiving) district will apply its own state and federal choice of law principles

Question 9

Forum Non Conviniens

Answer 9

Forum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case. P can refile in more convenient forum. Gilbert factors.
Will not dismiss the case if the alternative court gives no remedy. Must be another court available that would grant P money if they win. If the system is grossly inadequate, then the court will not dismiss.

Intersystem. 1404a is intrasystem.

Question 10

Gilbert Factors

Answer 10

• Choice of law issues
• Private factors – plaintiff choice of proper forum (again) given deference, but
  court will look at access to proof, compelling witnesses, jury/judge view of
  premises (if appropriate), enforceability of judgment, ease of fairly conducting
• Public factors – burden on citizen taxpayers, court congestion, interest in
  forum concerning the litigation, choice of law

Question 11

Venue Selection Clauses

Answer 11

1. When plaintiff ignores a valid forum-selection provision and files lawsuit in a forum other than specified by agreement, court must (initially) ignore f-s provision and only look to see if the initial forum was proper venue under Section 1391(b). In other words, filing in a forum other than the contractually agreed to forum does not automatically place the case in the Rule 12(b)(3) and Section 1406(a)/improper forum category. (Atlantic Marine (2013))
2. If initial forum proper under Section 1391, then court (1) evaluates intra-system transfer under Section 1404(a)/balance of interest/justice factors or (2) if inter-system cases, applies FNC dismissal doctrine. (Id.)
3. If initial forum wrong/improper under Section 1391, then court (1) evaluates intra-system cases under Section 1406(a) dismissal or interest of justice transfer provisions or (2) applies FNC dismissal doctrine to inter-system cases.

Question 12

Effects of Valid Venue Selection Clause for transfer/dismissal

Answer 12

Generally: When the parties have agreed to a valid forum selection provision, a district court should ordinarily transfer the case to the selected forum.

Where invalid forum-selection clause, the clause modifies 1404(a)/FNC analysis in three ways:
1. Plaintiff’s initial choice of forum will be given no weight and plaintiff will
bear burden of showing why transfer/dismissal unwarranted (Id.)

2. Private convenience of parties or witness factors under 1404(a) or Gilbert 
private interest factors under FNC are irrelevant; only Gilbert 
public interest factors will apply

3.Unlike typical 1404(a) proper initial forum transfers, transferee (receiving) 
court will not apply transferor court’s choice of law provisions, but instead 
will apply transferee (receiving) court’s choice of law provisions

Question 13

Erie Doctrine:

Answer 13

In federal divers. cases, apply substantive state law; apply procedural federal law. If close call, do Twin Aims test.

Question 14

Analytical approach for Erie

Answer 14

Fed directive on point (FRCP, statute, or constitution provision)? if yes, apply fed directive, unless it is invalid (unconstitutional; is the stature or FRPC “arguably procedural”?). If no, do Erie:

1. If law clearly substantive, apply state; if law clearly procedural, apply fed.
2. If law not clearly substantive or procedural, apply Hanna/York “modified outcome-determinative” test, guided by the “twin aims” of Erie: (i) discouraging forum shopping and (ii) avoiding inequitable administration of laws (outcome determinative).
3. However, under Byrd, pendulum may swing back to application of federal law if strong federal interest overrides results of “modified outcome determinative/’twin aims’” test calling for application of state law.

Question 15

Choice of Law in Diversity Cases

Answer 15

A federal court sitting in diversity must apply the choice of law principles of the state in which the federal court sits.

Question 16

Choice of Law, how to apply:

Answer 16

• Klaxon rule- apply choice of law principles in state where federal court sits
• state constitutional, statutory, and administrative rules and regulations
• Re case law: need to determine what the state’s highest court has said or would say
  
  • Options if the federal court is not clear what state court would say
    
    • ask the state court for a certification
    • if there is a case in the state court’s pipeline the federal court can delay hearing the case until that is decided

Question 17

Federal Common Law:

Answer 17

Still kinda exists- gap filling purposes.
National concern: interstate disputes for waterways, maritime, foriegn relations. Gap filling: whether there is a private right of action, no statute of limitations indication, labor practices and antitrust law.

Question 18

Federal law in State Court

Answer 18

When resolving a fed claim/defense, state court must apply fed substantive law, including the Constitution, fed statutes and fed CL.
Conversely, a state court must also generally apply state procedural law.

Question 19

Code Pleading

Answer 19

Must track all elements of the claim, otherwise there is a demurrer.
Ultimate facts, not too specific and not just a legal conclusion

Question 20

Notice Pleadings

Answer 20

FRCP 8a. A pleading that states a claim for relief must contain:

1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

The allegations, if true, would be sufficient to entitle the plaintiff to relief

Question 21

Challenging a pleading

Answer 21

Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required.

Question 22

12(b)6- Failure to state a claim

Answer 22

Legal (in)sufficiency, i.e. the pleading may contain sufficient factual allegations, but the claim itself is not recognized in the jurisdiction (the so-called “so what” standard)
Factual (in)sufficiency, i.e. the claim is recognized in the jurisdiction, but the plaintiff has insufficiently plead facts in attempting to state a claim

Question 23

Twiqbal Plausibility Standard:

Answer 23

1. Although detailed factual pleading is not required, court must determine whether the P has alleged facts in the Complaint showing that P’s claim is plausible.
2. In evaluating the plausibility of a claim, court engages in a two-step analysis:
   (a) First, the court disregards legal conclusions alleged in the Complaint
   (b) Second, the court evaluates the factual allegations. If the factual allegations are possible (Swanson v. Citibank), then they will accept them as true. They will then ask if these facts lead to a plausible inference that the defendant could be liable.

Question 24

Twiqbal:

Answer 24

A complaint must allege sufficient facts that, if taken as true, “state a claim to relief that is plausible on its face” in order to defeat a motion to dismiss. Facial plausibility means that the facts alleged permit a “reasonable inference” that the defendant is, in fact, liable.

Question 25

Multiple Claims: sufficiency of pleadings

Answer 25

If party pleads multiple claims, only one has to be sufficient.

Question 26

Pleading Special Matters:

Answer 26

In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.
Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

Purpose: provide adequate notice, deter lawsuits seeking discovery of unknown claims, protect defendants’ reputation from groundless lawsuits.

Question 27

Super-heightened pleading requirements:

Answer 27

Securities fraud plaintiff must state with PARTICULARITY:
Needed to plead the “Who, what, when, where” in Kearns; State with particularity the facts giving rise to strong inference that D acted with requisite state of mind.

Long version:
The facts constituting the violation and
The facts evidencing D’s intent to “deceive, manipulate or defraud;” plaintiff must state with particularity the facts giving rise to a strong inference that D acted with the req. state of mind; and, proof of a strong inference requires that the inferences drawn by P are at least as cogent and compelling as the opposing inferences.

Question 28

Pleading Special Damages

Answer 28

If an item of special damages is claimed, it must be specifically stated.

General damages (foreseeable): can be lump sum, no need to be specific. 
Special (unforeseeable/unnatural): must be itemized, but need not be plead by specific dollar amount.

Question 29

Prayer for relief

Answer 29

A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings.
Generally, P can get the category of damages and the amount of damages they are entitled to; if default, only get what they allege in the prayer for relief.

Question 30

Time permitted for response generally:

Answer 30

A defendant must serve an answer:
21 days after service; or
if it has timely waived service, within 60 days after the request for waiver was sent; or
within 90 days after it was sent to the defendant outside any judicial district in the U.S.

Question 31

Time for Motion to dismiss

Answer 31

• within 21 days after being served with summons and complaint
• If denied, this will extend the amount of time allowed to respond to 14 days after receiving the court’s denial

Question 32

Rule 12(c) – Motion for judgment on the pleadings

Answer 32

“After the pleadings are closed –but early enough to not delay trial – a party may move for judgment on the pleadings.”

Question 33

Rule 12(d) – Matters outside the pleadings

Answer 33

“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented and not excluded by the court, the motion must be treated as one for summary judgment.

Question 34

Rule 12(e) – Motion for a More Definite Statement

Answer 34

• within 21 days and before filing a response
• can only do if the pleading is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must …. point out the defects complained of and the details desired.
• If granted, the responsive pleading must be served within 14 days of when the more definite statement is served on them

Question 35

Rule 12(f) – Motion to Strike

Answer 35

The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter” –either on its own motion or a motion brought by a party.

Question 36

Filing answer: Admissions and denials

Answer 36

Defendant must admit, deny outright or deny based on lack of knowledge or information each and every allegation in the Complaint
General denials (denial of everything) are ok but seldom appropriate.
If D intends in good faith to deny only a part of an allegation, he must admit the part that is true and deny the rest.
If D fails to deny an allegation (except allegations concerning the amount of damages), the allegation is deemed admitted.

Question 37

Filing Answer: Affirmative Defenses

Answer 37

In response to pleading, party must affirmatively state any affirmative defense.

What is an affirmative defense?
Rule 8c list OR any claim that fits within the following:

• Ask two questions:
  
  • is it only controverting an element of the plaintiff’s claim? Not Aff Def
  • Would allowing defense to be plead later on cause unneccessary and unfair surprise? Yes Aff Def
• Must be plead in timely manner or else it is waived
• It is not held to the same Twiqbal standard of pleading

Question 38

The Reply

Answer 38

P need not reply to the defendant’s Answer and all allegations in the Answer are deemed denied. P must, however, answer/reply to a counterclaim contained in an Answer.

Question 39

Swanson v. City Bank

Answer 39

In order for a court to be able to take the set of facts as true, they need to be at least possible in order to evaluate whether this could lead to a plausible inference that the defendant will be liable.

Under the plausibility standard espoused in Twiqbal a court is not to consider whether a set of facts are probable, but rather, whether a set of facts are possible.

Question 40

Amendments to Pleadings

Answer 40

Before trial, a party may amend its pleading once as a matter of law w/o consent within 21 days from service.
In all other cases, before trial, only with consent of opposing party or court.

Question 41

When court should grant amendment to claim

Answer 41

Leave should be freely/liberally granted, but may be denied due to: Undue delay, Bad faith, Undue prejudice to the opponent, Futility of amendment.

Question 42

relation back - amending complaint (NOT adding party)

Answer 42

1: the law allows relation back
2: arose from the same T/O as that set out or attempted to be set out in the originally filed complaint

Question 43

Relation Back - adding a party:

Answer 43

For the purposes of satisfying the statute of limitations, an amendment to a pleading will be able to relate back to the date it was originally filed in order to add a new party to the actions if:

1. new claim arises out of the same T/O
2. served within 90 days of the original summons and complaint being filed
3. the party to be added received such notice of the action before the statute of limitations had run
4. they knew or should have known that the action would have been brought against them
5. but for a mistake concerning the party’s proper identity.

Question 44

Supplemental pleadings

Answer 44

On motion and reasonable notice, the court may permit a party to serve a supplemental pleading setting out facts that happened after the date of the pleading to be supplemented.
Court may deny for: bad faith, undue delay, or repeated failure to cure deficiencies, any of which could prejudice the other party.

Question 45

Relation Back

Answer 45

Relation back under Rule 15(c) does not depend on the amending party’s knowledge or timeliness.
Rule focuses on what the defendant knew, not what the plaintiff knew.

Question 46

Default

Answer 46

If D does not file response in time, P gives default papers to the clerk, clerk then determines if service was correct and no response, then enter default judgment.
Prevents defendant from filing an answer, without any special permission with a judge. Judgment will be no larger than that which is pleaded in complaint.

Question 47

Verification (Under Oath):

Answer 47

Requirement in limited instances; applications for temporary restraining order must be verified (“TRO”) under Rule 65(b)).

Question 48

Certification requirements

Answer 48

Signature requirement: no verification (under oath) needed unless otherwise required by statute or rule.
Signature connotes that to the best of the signor’s knowledge, info and belief after reasonable inquiry, the pleading, motion or other paper:

• is not being presented for an improper purpose
• contains claims or defenses or legal contentions that are warranted by existing law or nonfrivolous arguments for changing existing law
• contains factual contentions or denials that are supported/warranted by the evidence or will likely be supportable by future discovery or investigation/are reasonably based on information or belief

Question 49

Sanctions

Answer 49

After affording due process, the court (based on motion or its own initiative) can impose sanctions on the signor or other person responsible.

Safe harbor provision – Motion for sanctions must be made separately, must be served on opponent, but not filed if the opposing party, within 21 days of service, withdraws or corrects the pleading motion or paper

Question 50

Attorney Cert requirements

Answer 50

In terms of factual contentions made in court, an attorney is entitled to rely on the objectively reasonable representations of his client

Question 51

Real-Parties in Interest

Answer 51

An action must be prosecuted in the name of the real party in interest. The following may sue in their own names without joining the person: executor; administrator; guardian; bailee; trustee; beneficiary; party authorized by statute.

Question 52

Joinder of the Real Party in Interest

Answer 52

The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action

Question 53

Permissive Joinder of Claims

Answer 53

A party asserting a claim, counterclaim, crossclaim, or third party-claim may join, as independent or alternative claims, as many claims as it has against an opposing party.

Rule 18 removes all obstacles to the joinder of claims and permits the joinder of both legal and equitable matters. The only restriction on these claims is imposed by jurisdictional requirements.

Question 54

Compulsory Counterclaims

Answer 54

A pleading must state as a counterclaim any claim that – at the time of its service –the pleader has against an opposing party if the claim
(A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and
(B) does not require adding another party over whom the court cannot acquire jurisdiction.”

Exception #1 – No requirement to bring compulsory counterclaim where the counterclaim was pending as a claim in another action
Exception #2 – No need to bring compulsory counterclaim in actions involving attachment of property to obtain personal jurisdictions (this exception rarely comes up)

Consequences of Failure to file a Compulsory Counterclaim – later suit barred under doctrine of claim preclusion

Question 55

Permissive Counterclaims

Answer 55

A pleading may state as a counterclaim against an opposing party any claim that is not compulsory.

Question 56

Crossclaims

Answer 56

Pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, orig. property.

Question 57

Crossclaims

Answer 57

May cross claim if arises out of same transaction or occurrence
OR
relates to property that is subject matter of transaction

Question 58

Permissive Joinder of Parties

Answer 58

Persons may join an action as P’s if
(A) they assert any right to relief jointly, severally, alternatively arising out of the same transaction, occurrence; and
(B) any question of law or fact common to all plaintiffs will arise in the action.”

Question 59

Required Joinder of Parties: Analytic approach

Answer 59

Q #1 – Is Absentee a Required Party under Rule 19(a)?
“Complete Relief” prong –Absentee should be joined because, without absentee, court cannot accord complete relief to existing parties
OR
“Prejudice to Absentees or to Existing Parties” Prongs – Where absentee has an interest relating to the subject matter of the dispute and, without joinder of the absentee, harm or prejudice will be caused to either:
The absentee OR The existing parties

Q#2 – Is Joinder of Absentee Feasible
Would court have SMJ, PJ, and Venue for absentee?

Q #3 – If joinder is not feasible, in equity and in good conscience, should the court allow the action to proceed with the existing parties, i.e. without the absentee, or should the court dismiss the action?
Factors:
-The extent to which a judgment rendered without joining the absentee would prejudice the absentee or the existing parties (same analysis as previous)
-The extent to which the court could lessen or avoid any such prejudice by protective provisions in the judgment, shaping the relief, or other measures
-Whether a judgment rendered without absentee would be adequate
-Whether plaintiff would have an adequate remedy elsewhere if dismissed

Question 60

Third-party Complaint by Defending Party:

Answer 60

Allows, but does not require, a defending party, as a third-party plaintiff, to serve a summons and a complaint on a nonparty who may be liable to it for all or part of the claim against it.

Defending party will need leave of court to do so, if more than 14 days have passed since he served its original answer.

Question 61

Intervention as a matter of Right

Answer 61

unconditional right under federal statute;
OR
claims an interest relating to the property or transaction that is the subject of the action, and disposing of action may impair the movant’s ability to protect its interest.

Question 62

Permissive intervention:

Answer 62

Court may permit:
One who has a claim or defense that shares with the main action a common question of law or fact.
(courts have discretion here, needs to look out for orig. party)

Question 63

Intervention

Answer 63

Intervention is appropriate when (1) the moving party has an interest in the outcome of the case, (2) that outcome may impair the party’s ability to protect its interests if it does not intervene, and (3) the party is not otherwise adequately represented in the case.

Question 64

Discovery prior to filing suit

Answer 64

Pre-trial perpetuation of testimony will only be allowed prior to filing suit if it is at high risk of being lost. It will only be at such a risk when

• serious illness
• about to leave country

Question 65

Scope of Discovery

Answer 65

Relevant and Proportional:

the scope of discovery” allows the parties to “obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and is proportional to the needs of the case.

Proportional Factors: I-ARRIBA

1. the importance of the issues at stake in the action
2. The amount (of damages) in controversy
3. The parties’ relative access to relevant information
4. The parties’ resources
5. The importance of the discovery in resolving the issue
6. A cost/benefit analysis, taking into account the burden or expense on the party responding to the discovery request versus the benefit of the discovery to the requesting party

Question 66

Protective Orders under Discovery

Answer 66

“an order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense”

• Can only file for a protective order after the parties meet and confer
• May be used to forbid or limit discovery

Question 67

Discovery Plan

Answer 67

Parties “must confer as soon as practicable”

Submit Disco plan with views and proposals about discovery issues to the court. Court then issues Scheduling Order

Question 68

Expedited Discovery

Answer 68

A party cannot seek discovery before the Disco Plan conference UNLESS
Expedited Discovery:
Party must show:
A) Just cause
B) good faith belief that court has personal jurisdiction over defendant
C) Protective order may be appropriate

Question 69

Certification Requirements for Discovery

Answer 69

• An attorney must sign all discovery:
  
  • disclosures - certifying that it was complete at the time it was made
  • requests, responses, and objections- Rule 11 representations (to the best of
    their knowledge)
• imposes continuing obligation on parties to supplement or correct inaccurate responses in a timely manner once they learn of the problem.

Question 70

Mandatory Disclosures

Answer 70

ID of witnesses and their subject matter knowledge that the disclosing party may use to supports its claim
Relevant documents
Computation of each category of damages
Insurance information

Attorney must certify; must continue to update

Question 71

Depositions

Answer 71

• Questions for individuals before trial to see what they know
• Notice for parties, subpoena for non-parties
• Objections during depositions: Generally, these are saved until trial EXCEPT when the form of the question is vague or they are asking for privileged information.
• 10 depositions limit

Question 72

Interrogatories

Answer 72

Written questions, with reasonable particularity, by one party, served on another party, who must respond in writing under oath, within 30 days. Relevant and Proportional

• Can go beyond the individual’s knowledge, unlike depositions.
• Can only propound interrogatories on a party.
• Don’t need leave of court to interrogatory

Question 73

Request for Inspection of Documents

Answer 73

• Request form needs to be with reasonable particularity
• Often used with other discovery devices
• Must provide all documents within your possession, custody, or control
• If parties run into issue- they must meet and confer before filing a motion to compel
• Motion to compel - burden on moving party to show why they need it. Burden not on objecting party to show why they don’t want to give it

Question 74

Physical and Mental Examinations

Answer 74

May be permitted when “a party whose mental or physical condition is in controversy”
Need court order based on good cause and via motion and notice to all parties
Only can take exams of Parties

Question 75

Requests for Admission

Answer 75

party may serve other party a written request to admit, the truth of any matters within the scope of relevance and proportionality:
Facts, the application of law to fact, or opinions about either; and
The genuineness of any described documents.

Consequences not responding:
It counts as conclusive proof at trial

Question 76

Work Product

Answer 76

1. Is material relevant/proportional
2. Was it prepared in anticipation of litigation
3. Was it prepared by attorney or their representatives (excluding expert witnesses)
4. Is the material contained in a document or other tangible thing
   
   • Easy- statements made by party
   • Harder - factual work product, the attorney’s work
     
     • party must show a substantial need for this and cannot obtain it elsewhere without substantial hardship
   • Hardest - items containing attorneys mental impressions and legal theories
5. Result: If the court determines that a document should be provided to the requesting party they must protect against disclosure of the attorneys mental impressions and legal theories

Question 77

Work Product rule:

Answer 77

Party may not discover documents and tangible things that are prepared in anticipation/for trial. But those materials may be discoverable if:

1) They are otherwise discoverable; and
2) The party shows that it has substantial need for the materials to prepare its
case and cannot, without undue hardship, obtain their substantial equivalent by other means.
But, even still, no mental impressions, conclusions, opinions or legal theories.

Question 78

Sanctions

Answer 78

Sanctions available against noncomplying party
A party to “move for an order compelling disclosure or discovery.”

Court must award reasonable expenses, including reasonable attorney’s fees to prevailing party on motion, unless losing party’s position was “substantially justified.”

Question 79

Summary Judgment

Answer 79

The court shall grant summary if the movant shows there is no genuine issue as to any material fact.

Material fact is something that would change the outcome of the case, one way or another.

Question 80

Time to File - Summary Judgment

Answer 80

Any time until 30 days after the close of all discovery.

Question 81

More on Summary Judgment

Answer 81

Separate statement regarding disputed facts required from each party

Unless it involves a pure legal question, it must generally be supported or opposed by admissible evidence.

Question 82

Summary Judgment: when you do not have the burden of proof at trial:

Answer 82

Moving party must make a “showing” that there is no genuine dispute as to any material fact. (they can even just point to evidentiary record)

Non-moving party must present evidence that creates a genuine dispute of material fact in that a reasonable jury could find for either the movant or non-movant based on the evidence before it.

Question 83

Summary Judgment: you have burden of proof at trial

Answer 83

A “showing” of the absence of any genuine dispute is not enough; must establish, by presentation of evidence, all of the essential elements of the claim such that a reasonable jury would have no choice but to rule in the your favor.

Question 84

Right to Jury Trial: Test

Answer 84

Determine whether it is LEGAL or EQUITABLE:

Factors:

1) the pre-merger (of law and equity) custom with reference to the issue;
2) the remedy sought; and
3) the practical abilities and limitations of juries.

Remedy sought is most important - the other factors aren’t really analyzed.

Question 85

Legal and Equitable issues in same case:

Answer 85

The legal issues must be first resolved by a jury before the equitable issues may be resolved by the court

Question 86

Demanding a jury trial

Answer 86

serve demand on other party

within 14 days after the last pleading directed to the issue is served

if not entitled to jury trial then other party can move to strike the demand

Question 87

Jury Selection

Answer 87

Get unlimited challenges for good cause

Get 3 challenges for any reason (besides unconstitutional)

Question 88

Mid-Trial Motion for Judgment as a Matter of Law (MJML)

Answer 88

Same as summary judgment.

made before jury instructions

Question 89

Post trial motion for judgment as a matter of law

Answer 89

Within 28 days of entry of judgment
Must bring Mid-motion motion for judgment to bring a post trial motion.

more likely to grant this then mid-trial motion for JML. This is because if it goes to appellate court then they can just re-instate jury verdict instead of doing a new trial.

Question 90

Motions for a new trial

Answer 90

the verdict is against the weight of the evidence.
Inconsistent jury verdicts
Bad ruling mid trial on jury instructions
New evidence, not discoverable before.

court has more latitude to weigh evidence in ruling on these motions.

Question 91

RDA v. REA

Answer 91

RDA - says that the laws of the states will apply in cases before federal court.

REA- essentially says that a FRCP will be valid as long as it is arguably procedural

Question 92

Removal

Answer 92

D can remove from State to Federal court if the claim could have been brought there originally. However, D cannot remove if it is brought in a state court in state in which a D is a resident.

Question 93

Impleader

Answer 93

Allows, but does not require, a defending party, as a third-party plaintiff, to serve a summons and a complaint on a nonparty who may be liable to it for all or part of the claim against it. Need leave of court, if more than 14 days have passed since she served original answer.
TPD is treated like regular D:
Rule 12 defenses, counterclaims, crossclaims, defenses against TPP.

Question 94

Joinder of Parties, additional things

Answer 94

Same T/O means logical relation

Court can add/drop or sever party for separate trial, or consolidate trials.