Civ Pro

Question 1

When may the clerk enter default notice?

Answer 1

Only if defendant has not filed any papers at all

Question 2

Is leave of court required to depose a person (party or nonparty)?

Answer 2

Generally, any party may depose a person without leave after reasonable notice to all other parties

Question 3

How many times can an action be voluntarily dismissed without prejudice?

Answer 3

Once, second voluntary dismissal will be with prejudice

Question 4

If it appears on the record that no activity has occurred for 10 months and there is no order/ stipulation staying the case….

Answer 4

any interested person, or the court, can serve notice to all parties that no record activity has occurred

Question 5

When may plaintiff voluntarily dismiss her action?

Answer 5

Any time before jury retires or case is submitted to the court in a nonjury case

Question 6

What are restrictions on plaintiff’s ability to voluntarily dismiss her action?

Answer 6

(1) pending motion for summary judgment; (2) no dismissal by notice in an action where property is seized by the court; and (3) no dismissal by notice if a counterclaim is filed and cannot remain pending for independent adjudication

Question 7

What matters must be pled with particularity?

Answer 7

(1) fraud; (2) facts supporting puni damages (gross negligence + intentional misconduct); (3) special damages

Question 8

by when must defendant respond to complaint to avoid default?

Answer 8

20 days of being served; can respond by motion or answer

Question 9

A compulsory counterclaim…

Answer 9

arises out of the same transaction or occurrence of P’s claim; it must be filed or it is waived forever

Question 10

what must P do if D files a permissive counterclaim?

Answer 10

File a response within 20 days of service

Question 11

Does plaintiff have a right to amend their complaint?

Answer 11

Yes, once BEFORE defendant serves an answer

Question 12

Does defendant have a right to amend his answer?

Answer 12

Yes, once within 20 days of serving answer

Question 13

If there is no right to amend…

Answer 13

you can move to amend and it will be granted if justice so requires; the proposed amended pleading must be attached to the motion; and if an amended pleading seeking relief is filed the opposing party must respond within 10 days of service

Question 14

how do you get information from nonparties?

Answer 14

A subpoena –> (1) must give notice to all parties of request for subpoena at least 10 days before issuance; and (2) if a party objects the party seeking discovery may (a) move for a ruling on the objection; OR (b) take nonparty’s depo using a subpoena duces tecum

Question 15

What does a subpoena duces tecum do?

Answer 15

Subpoena that requires the deponent to bring requested materials with her/him

Question 16

What are the waivable rule 12 defenses?

Answer 16

• lack of PJ, improper service of process, insufficient process, and improper venue
• must be made in the first pre-answer motion, or in defendant’s answer if there are no preanswer motions or they are waived

Question 17

On appeal, what is the standard of review for findings of fact in a bench trial? (made by judge)

Answer 17

• court affirms unless clearly erroneous

- high deference to trial courts findings of fact

Question 18

What is the standard of review on appeal for questions of law?

Answer 18

• de novo

- no deference to trial court judge

Question 19

What is the standard of review on appeal for questions of fact in a jury trial?

Answer 19

• court will affirm unless reasonable people could not have made that finding
• very deferential standard

Question 20

When is notice of appeal filed?

Answer 20

with the district court within 30 days after entry of judgment being appealed

Question 21

What is determined at the final pretrial conference?

Answer 21

• issues to be tried at trial and evidence parties will proffer
• this is recorded in pretrial conference order

Question 22

When will a court modify a pretrial conference order?

Answer 22

Only to prevent manifest injustice

Question 23

May a party make factually inconsistent statements in a pleading?

Answer 23

Yes, but it is still subject to rule 11 and can only be done if there is a good faith basis for believing both statements

Question 24

Under the final judgment rule:

Answer 24

A judgment is not final until all the claims in the action have been resolved

Question 25

When can a party request the court to certify a final judgment of a resolved claim?

Answer 25

when the resolved claim is separate and distinct from any unresolved claims; if certification is granted then the decision may be appealed

Question 26

What are the judge’s options when the jury’s general verdict is inconsistent with the findings of fact?

Answer 26

(1) enter a verdict consistent with the jury’s interrogatories notwithstanding the general verdict; (2) direct jury to deliberate further; or (3) order a new trial

Question 27

If the jury’s interrogatories are inconsistent with each other and inconsistent with the general verdict, the court must:

Answer 27

order a new trial or send the case back to the jury for further deliberation

Question 28

What choice of law rules must a federal court, sitting in diversity, apply?

Answer 28

the choice of law rules of the state in which it sits to determine which competing state law rules will apply

Question 29

What is the timing to make a motion for summary judgment?

Answer 29

Party can make the motion no later than 30 days after the close of discovery

Question 30

When must service be made?

Answer 30

90 days after complaint is filed

Question 31

What law must a federal court sitting in diversity apply?

Answer 31

State substantive law on all substantive issues and federal procedural law on all procedural issues

Question 32

What does the seventh amendment preserve?

Answer 32

right to jury in civil actions at law; not in equity; in federal cases

Question 33

Is there a right to demand jury trial in suits of law and equity?

Answer 33

Yes; facts underlying the legal claim will be tried to the jury and the facts related to the equitable remedies will be tried by the judged

Question 34

What are the two ways parties can challenge jurors?

Answer 34

(1) for cause; or (2) peremptory challenges

Question 35

For cause v. Peremptory Challenges?

Answer 35

(1) parties have unlimited for cause challenges; can be for any reason (but not race motivated)
(2) generally parties each have 3 peremptory challenges; can strike a juror for no reason at all (but cannot be based on race/ gender)

Question 36

If a timely objection to jury instructions is not made, the court may only reconsider the instructions if:

Answer 36

there was clear error that affected a party’s rights

Question 37

When must a RJMOL be made?

Answer 37

within 28 days after entry of judgment

Question 38

What law applies to a federal court exercising federal question jurisdiction?

Answer 38

-Federal law applies; no eerie analysis is required

Question 39

How is citizenship of a corporation determined for diversity purposes?

Answer 39

(1) state where its incorporated; and (2) principal place of business (the HQ)

Question 40

A plaintiff may file notice of dismissal without court order….

Answer 40

if the defendant has not filed an answer or a motion for summary judgment; otherwise, plaintiff needs permission from the court

Question 41

A voluntary dismissal will be

Answer 41

• without prejudice UNLESS the plaintiff has already dismissed the same claim in any federal/ state court
• if claim was previously dismissed, dismissal will be with prejudice

Question 42

When may a court order a party to submit to physical/ mental examinations by a physician?

Answer 42

the physical and/ or mental condition of the party is in controversy; order must be made on a motion showing of good cause for the exam

Question 43

What can the judge do if the jury’s findings of fact are inconsistent with the verdict?

Answer 43

(1) enter a judgment not withstanding the verdict; (2) order a new trial; OR (3) send the jury to further deliberate

Question 44

When venue is initially improper, the court may:

Answer 44

(1) dismiss the case; or (2) transfer to a venue where the case could have originally been brought

Question 45

If venue is originally proper, the court may transfer:

Answer 45

(1) to any venue where the case could have originally been brought; or (2) any venue that the parties consent to

Question 46

The issue of a class action certification is:

Answer 46

based in equity and therefore a determination of whether the class action requirements have been met is reserved for a judge, not a jury

Question 47

What two questions are involved in a personal jurisdiction analysis?

Answer 47

(1) whether the state’s long-arm statute gives PJ; AND

(2) whether constitutional DP clause allows for the court to exercise jurisdiction over the defendant

Question 48

What must be included in a complaint to satisfy federal pleading standards?

Answer 48

enough facts to show a claim is plausible (called notice pleading)

Question 49

When can a TRO be granted without notice to the other party?

Answer 49

(1) moving party gives specific facts that irreparable injury will result before the adverse party can be heard; (2) moving party certifies in writing of efforts to give notice if any and reasons why notice should not be required; and (3) moving party provides a security deposit

Question 50

When ruling a renewed JMOL, the court views the evidence:

Answer 50

in the light most favorable to the nonmoving party

Question 51

A demand for jury trial generally will be denied if:

Answer 51

all that is being sought are equitable remedies b/c right to jury only applies suits at common law

Question 52

Can congress statutorily grant jury rights to claims that fall outside the 7th amendment?

Answer 52

Yes.

Question 53

When can a district court order certifying a class be appealed?

Answer 53

within 14 days of entry and court of appeal has discretion to hear it

Question 54

On a motion for summary judgment is the nonmoving party required to reply?

Answer 54

generally, the nonmoving party is required to respond to a motion for SJ or risk having SJ entered against them

Question 55

By when must the nonmoving’s party response to motion for SJ be filed?

Answer 55

at least 20 days before hearing on the motion

Question 56

A party moving for SJ, must serve the motion on the nonmoving party:

Answer 56

at least 40 days before the hearing