Civ Pro

Question 1

Issue Preclusion

Answer 1

a judgment binds P or D, or privies, in subsequent actions on diff. causes of action between them or privies, as to issues actually litigated and essential to the judgment of the first action. The conclusive effect of first judgment is called issue preclusion, or collateral estoppel.

Elements: For IP to apply: (1) judgment must have been final, (2) the issue actually litigated, and (3) must have been essential to the judgment.

Question 2

Claim Preclusion

Answer 2

The elements of Federal claim preclusion are: (1) there must have been a final judgment on the merits; (2) the decision was rendered by a court of competent jurisdiction; (3) the prior action must have involved the same parties or their privies; and (4) the prior action must have involved the same claim.

It is not sufficient simply that both cases involve the same parties. For example, if the defendant in the first case is the claimant in the second case, claim preclusion will not apply even though both cases involve the same parties.

Question 3

Non-Mutual offensive issue preclusion

Answer 3

When a nonparty wants to use a previous judgment offensively, the court must consider whether it would be fair and equitable to allow the nonparty to do so.

Question 4

Merged claims

Answer 4

Where the claimant won the earlier lawsuit, the claim is said to be merged into the prior judgment.

Question 5

Barred claims

Answer 5

Where the defendant won the earlier lawsuit, the claim is said to be barred by the prior judgment

Question 6

Fed. Court recognition of claims litigated in state court

Answer 6

Federal courts will give the same preclusive effect of a state court decision that the state that issued it would; e.g., here, a federal court would give the State B state court decision the same preclusive effect that another State B state court would.

Question 7

Personal Jurisdiction - Steps (1) Long arm stat. and (2) Due Process under 14th Amend of Constitution

Answer 7

PJ is the court’s power to enforce a judgment against a party. PJ involves two questions, including whether; (1) state’s long arm stat. grants jurisdi. AND the 14th Amendment Due Process clause of Constit. allows ct. to enforce judgment against D.

Question 8

Personal Jurisdiction - Due Process Standard

Answer 8

Defendant must have such minimum contacts with the forum such that the exercise of personal jurisdiction over him is fair and reasonable. Consider whether defendant purposefully availed himself of the benefits and protections of state law and whether he could have anticipated being brought into state court.

Question 9

Domicile

Answer 9

For diversity purposes, the state citizenship of an individual is the state in which he has his permanent home and to which he intends to return.

Question 10

Diversity of the parties is measured at what time

Answer 10

When the lawsuit is filed

Question 11

Citizenship of partnership

Answer 11

PPB/State of Inc. does not apply to partnerships!!A partnership is a citizen of each state of which one of its partners is a citizen, both limited and general.

Question 12

Supp. Jurisdiction for P’s claims against impleaded third party

Answer 12

For cases based solely on diversity, supplemental jurisdiction is not available for claims by the plaintiff against persons made parties under the impleader rules when use of supplemental jurisdiction would be contrary to the requirements of diversity jurisdiction.

Question 13

General Supp. Juris.

Answer 13

Although there may be no diversity, the federal court has discretion to exercise supplemental (pendent) jurisdiction over the claim based on state law if the two claims are so related that they are part of the same case or controversy, which essentially means that they derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding.

Question 14

When Fed. Q. is dismissed before trial

Answer 14

When a claim is in federal court under federal question jurisdiction, and the plaintiff has a state law claim against the defendant that cannot invoke diversity jurisdiction, the federal court has discretion to exercise supplemental (pendent) jurisdiction over the state law claim if the federal and state claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding. The court may continue to exercise supplemental (pendent) jurisdiction over the state claim even though the federal claim is dismissed on the merits. However, the state claim should probably also be dismissed (without prejudice) if the federal claim is dismissed before trial.

Question 15

When does a person get a new domicile?

Answer 15

A person’s domicile is their permanent home. It remains his domicile until he acquires a new one by being physically present in a new place while intending to make that new place his permanent hom

Question 16

General Venue Requirements

Answer 16

Federal venue in civil actions is proper in (1) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (2) the district in which a substantial part of the events or omissions giving rise to the claim occurred. If there is no district anywhere in the United States that satisfies (1) or (2), the action may be brought in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action

Question 17

Forum non conviens

Answer 17

Even if the court has personal jurisdiction over the defendants, subject matter over the action, and venue is proper, the court has discretion to decline to hear the case in deference to a court in another country if it determines that the other country provides a substantially more efficient, convenient, and fair forum

Question 18

Default for Failure to Appear

Answer 18

Following a default by a defendant, the clerk may sign and enter a judgment for the amount set forth in the plaintiff’s affidavit if the defaulted defendant is not an infant or an incompetent and plaintiff’s claim is for a sum certain and the default was entered because the defendant failed to appear.

Question 19

Standard for a TRO

Answer 19

A court may grant, in its discretion, an ex parte temporary restraining order if the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition.
The other requirements are that the moving party must (i) certify in writing all efforts she made to give notice of the hearing to the adverse party and the reasons why notice should not be required; and (ii) provide some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security.

Question 20

Service of Process - Methods

Answer 20

A federal court may follow the state rules for service of process.

Question 21

Service of Process - Methods

Answer 21

Under Rule 4, an individual defendant may be served by leaving a copy of the papers at the individual’s dwelling or place of abode with someone of suitable age and discretion who resides there. **can’t be a neighbor*

Question 22

When is an action commenced for statute of limitations purposes?

Answer 22

In a federal question case, the action is deemed commenced for statute of limitations purposes when the complaint is filed with the court. In diversity cases (not federal question cases), the Supreme Court has held that the state rule for determining when the action is commenced applies. For diversity cases commencement is when either the complaint is filed or process is served on the opposing party, depending on the law of the state in which the federal court sits.

Question 23

When should Motion for JMOL be made?

Answer 23

Before submissio nof case to the jury

Question 24

When should Renewed Motion for JMOL be made?

Answer 24

a renewed motion for judgment as a matter of law must be filed no later than 28 days after entry of judgment, and the party making the motion must have moved for judgment as a matter of law at some time during the trial

Question 25

What is the deadline to file a Motion for New Trial?

Answer 25

A party can file a motion for a new trial no later than 28 days after judgment was entered.

Question 26

Impleader - Third Party Liability

Answer 26

A defending party may implead a nonparty if the nonparty is or may be liable to the party for any part of a judgment that the plaintiff may recover against it.

Question 27

Interlocutory (Preliminary) Orders

Answer 27

General rule: interlocutory orders are not appealable because they are not final.

Question 28

Demand for jury trial

Answer 28

Under Rule 38, to receive a jury trial a party must file a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue

Question 29

Finder of Fact for Legal/Equitable claims

Answer 29

If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury’s finding on fact issues will bind the court in the equitable claim.

Question 30

Discovery - Work Product Doctrine

Answer 30

Generally, a party may discover all nonprivleged matter that is relevant to any party’s claim or defense. Includes right to inspect and copy documents in the other party’s possession.

Question 31

Discovery - Work Product Doctrine

Answer 31

Documents prepared in anticipation of litigation need not be disclosed to adverse party, expect when “substancial need” and “substancial hardship” on other party to obtain same info. A non-tesifying expert report is only discoverable if “exceptional circumstance make it impracticable to obtain information another way.”

Question 32

Destruction of evidence

Answer 32

Destruction/alteration of evidence is improper if destroying party “has notice that evidence is relevant to litigation…or should have known it would be relevant to litigation.” There does not first have to be a request before destruction becomes improper. The duty to preserve evid. applies when litigation is anticipated, even when it has not yet commenced.

Question 33

Sactions - general rule

Answer 33

Courts have power to control the litig. process and may sanction misbehavior, even without a specific violation of the FRCP. Court can sanction by ordering payment of expenses, jury instruction of adverse inference, shift judgemnt of proof, or even enter judgment against the responsible party.

Question 34

Sanctions for destruction of evidence

Answer 34

Court will consider (A) level of culpability of the party responsible for destruction and (B) prejudice to the other party. Court may impose severe danctions only when evidence of bad faith. Negligence in destruction can support an adverse inference instruction.

Question 35

Standard of Review for Improper Jury Instructions

Answer 35

In order to reserve its right to appeal an error in an instruction given or, as is the case here, a failure to give an instruction, a party must object on the record before the instructions are given. If adequately preserved, the instructions are reviewed using an abuse of discretion standard. However, if the objection is not made (and therefore not preserved for full appellate review), then the court’s review is limited to considering whether there was a plain error in the instruction that affected substantial right.

Question 36

Review of JMOL

Answer 36

When an appellate court reviews a trial court’s ruling on a post-trial motion for judgment as a matter of law (including a renewed one), it employs a de novo standard. It does so because the issue is one of law.

Question 37

Review of Motion for New Trial

Answer 37

when an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a clear showing of an abuse of discretion.

Question 38

Interplay between removal and venue

Answer 38

In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state. This is because venue for an action removed under section 1441(a) lies in the federal district court “embracing the place where such [state] action is pending.”

Question 39

Removal of case from Fed. Ct. to state ct.

Answer 39

Under 28 U.S.C. section 1441, a defendant may remove an action that could originally have been brought in the federal courts, based on either a federal question being presented or on diversity of citizenship. However, there is no similar provision that allows a case initially filed in federal court to be moved to state court. (An action that was wrongfully removed from state court to federal court may be remanded back to state court, but must be intitially filed in state ct.)

Question 40

Voluntary Dismissal w/o prejudice

Answer 40

A plaintiff may of right dismiss an action one time without prejudice before the defendant serves its answer. A voluntary dismissal is not a final judgment on the merits; therefore the employer cannot properly assert the defense of claim preclusion

Question 41

Standard for Motion for New Trial

Answer 41

Court should grant Motion for New Trial if the jury’s verdict was against the weight of the evidence.

Question 42

Compulsory counterclaim

Answer 42

A compulsory counterclaim is a claim made by a defendant against a plaintiff that arises from the same transaction or occurrence as the plaintiff’s claim. The claim is compulsory in this situation in that it must be raised in the defendant’s answer, or it is waived.

Question 43

Service of Process for Foreign Individuals and Corporations

Answer 43

Rule 4 states you can serve foreign corps. and individuals according to Rule 4(f):

….

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual may be served at a place not within any judicial district of the United States:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:

(A) as prescribed by the foreign country’s law for service in that country in an action in its courts of general jurisdiction;

(B) as the foreign authority directs in response to a letter rogatory or letter of request; or

(C) unless prohibited by the foreign country’s law, by:

(i) delivering a copy of the summons and of the complaint to the individual personally; or
(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders.