Civ Pro

Question 1

Personal Jurisdiction

Answer 1

cts power over parties
Does the D have sufficient contacts with the forum state so that the exercise of PJ is fair and reasonable

Question 2

PJ Analysis requirement

Answer 2

PJ must fall w/i a statute
PJ must satisfy the Constitution ( due process)

Question 3

PJ statutory step

Answer 3

Long arm
Statute granting PJ over nonresidents who perform or cause certain things within th estate
Allows cts to exercise PJ to the full extent of the constitution

Question 4

PJ COnstitutional analysis

Answer 4

Does the defendant have such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice
Contact, relatedness, fairness

Contact
Relevant min contacts b/n D and forum state
Purposeful availment
Voluntary act targeting forum
Foreseeability
Foreseeable that D could get sued in forum

Relatedness
Does cause of action arise from or relate to D’s contacts with forum
Broader than actual causal connection

Fairness
Must be assessed when PJ os specific not general
Three factors
Burden on D and witnesses
State’s interest
P’s interest

Question 5

general jurisdiction

Answer 5

Two ways to get general PJ
General PJ requires D to be at home in the forum
At home in state of domicile
General PJ if D served with process in forum

At home
Corporation
State of incorporation and
State of principal place of business

Question 6

notice ( what, who, when, how, waiver)

Answer 6

Consists of 2 doc:
Summons
Copy of complaint

Who can serve
At least 18 years old and not party to the action may serve process

When
w/i 90 days , may be extended for good cause

How served
Personal service (in hand delivery)

Substituted services
at D’s usual place of abode
on someone of suitable age and discretion
who resides ther
Service on agent
If receiving service in scope of agency , agent appt by contract

State law method
Where the fed ct sits or
Where service is to made
Ex: service of process by mail

On business organization
On officer or agent
State law methods

On minor or incompetent person
Use state law method where service is made
On parties in a foreign country
Method allowed by international agreement
As directed by american ct
Method allowed by foreign country’s law
Method directed by foreign official in response to a letter of request from american ct
Personal service in the foreign country ( unless prohibited by its law)
Mail sent by clerk of american ct, requiring signed receipt unless prohibited by foreign country’s law

Waiver of service of process
To request waiver P mails D a notice and request to waive service
P include copy of complaint and two copies of waiver form with prepaid means of return
D returns to P w/i 30 days/ 60 if out of US
D who waives service of process does not waive any defense like lack of PJ
If D signs and mails waiver frm back to P , P fikes waiver in ct; waiver is effective then
Day filed form with ct
D pays for service as penalty for not waiving (unless good cause)

Question 7

Federal ct SMJ

Answer 7

Federal questions cases
Diversity of citizenship/ alienage

Federal Court has exclusive jurisdiction over these claims
Federal securities law
Bankruptcy
Patents and copyrights
Actions against foreign consuls and vice- consuls
Actions to Recover a fine, penalty, or forfeiture under federal law
Certain seizures.

Question 8

diversity jurisdiction

Answer 8

completely diverse litigants
Whether there is diversity is determined when the case is filed
diversity/ alienage wrinkles
Permanent resident (green card holder) is not a citizen of a state for diversity purposes
Jurisdiction is withdrawn if that permanent resident is domiciled in the same state as an adverse party

amount in controversy exceeding $75K

Question 9

citizenship

Answer 9

Citizenships of natural person (human)
a natural person must be both a citizen of the U.S and a domiciliary of that ST
Domicile
Only one domicile
How change
Physical presence in new place and
Subjective intent to make new place domicile for foreseeable future

Citizenship of corporation
Any state or country where incorporated and one state/ country where principal place of business is
Principal place of business: when the corporation’s managers direct, coordinate, and control the business ( nerver center test)
has its decision making and overall control take place

Citizenship of unincorporated associations
Takes on citizenships of all member

Limited partnership
General and limited partners

Citizenship of decedents, minors, incompentent
Sue or sued through a representative
Representative’s citzenship is irrelevant
Use citizenship of decedent, minor, or incompetent
Class action citizenship= named representative(s)

Question 10

amount in controversy (aggregation)

Answer 10

Good faith allegation by P usually controls unless to a legal certainty $75K+ is not possible

Interest
Prejudgment iinterest not included
Interest as part of claim included
if punitive damages are permitted under the controlling law, the demand for such damages may be included in determining whether the jurisdictional amount is satisfied

Aggregation of claims
A single P may aggregate all claims against a single D
Multiple P’s can’t do this
multiple Ps and 1D, Ps can meet AIC requirement by aggregating only the value of claims that are common and indivisible.

Whether a claim is common and indivisible turns on whether the parties seek to enforce a single title or right
rights/ liabilities arise out of the same transaction or have relationship to a common fund or mass of prop. Sought to be administered
If claims of multiple Ps are joint and severable, Ps may not aggregate them to meet jurisdictional amount
Joint claim = use total value of the claim
Ex: joint tortfeasors

Equitable relief
Includes issuance of an injunction, specific performance, rescission of a K
P’s viewpoint= does relief requested have value more than $75K
D’s viewpoint: if granted, will relief requested by P cost D more than $75,00

Question 11

exclusions from diversity jurisdiction

Answer 11

Divorce
Alimony
Child custody
Probate

Question 12

federal question jurisdiction

Answer 12

Claim arises from fed law
Determined by well-pleaded complaint
Determing well pleaded complaint
Is P enforcing a fed right = yes, can go to federal ct under fed question

Question 13

removal ( what, standard, how, what cases can- limits, venue, remand )

Answer 13

Procedure allowing D to move case from state ct to fed ct
Ct will remand if removal improper
remand= send back to st ct

Standard for removal
Case filed in state ct could have been brought in fed ct

How removed

Notice of removal - in fed ct
Grounds of removal stated
Ct permission not required
Served on adverse parties
File in fed ct, copy in state court

Timing
No more than 30 days after service of paper showing case is removabel
30 days of service of process

Who joins
All Ds served with process must join
Earlier- served D main join later served D’s removal even if 30-day period expired

P’s cannot remove
True even if the D files a counterclaim against P

What cases can be removed
D can remove a case that meets requirements for diversity of citizenship or FQ jurisdiction

Limits on removal based on diversity
The limitation on removal by defendants who are citizens of the state in whose court the action was brought applies only to diversity actions.
Any D is citizen of forum state
More than One- year after the case was filed in state ct time limit
Becomes removable when the claim against the in-state defendant ( non-diverse D) is voluntarily dismissed from the case
1 year rule exception
D originally joined to prevent removal

Removal venue
Ct must be removed to fed ct embracing the state ct
Doesn’t matter if not proper venue under venue statutes

Remand
P must move to remand w/i 30 days if defect other than lack of SMJ
30-day limit does not apply if fed ct doesnt have SMJ
Lack of SMJ is never waived

Question 14

Supplemental Jurisdiction (additional claims, analysis, discretionary factors,

Answer 14

Gets claims into a fed case, even tho claims cannot use diversity of citizenship or FQ

How supplemental jurisdiction works ANALYSIS
Step 1: look for SMJ in add’l claim
No need for supplemental if claim SMJ over additional claim
Step 2: common nucleus test
Must arise from common nucleus of operative fact as claim in existing fed ct case
Same transaction or occurrence always satisfies common nucleus test

Exception: only applies in cases that got into fed ct through diversity
In diversity cases, claims by P’s generally cannot invoke supplemental jurisdiction

Exception : applies when there are multiple P;s and claim by one of them does not meet the AIC requirement

Step 3 : check if got into fed ct under diversity or FQ
Step 4: check for limit on Ps in diversity
Step 5: Ps can’t use supplemental except 1 P doesn’t meet AIC

Discretionary factors
The fed (district) cts may decline to exercise supplemental jurisdiction over a claim if
The claim raises a novel or complex issue of St law
The state claim substantially predominates over the claim or claims over which the fed court has original jurisdiction
The district ct has dismissed all claims over which it has original jurisdiction or
In exceptional circumstances there are other compelling reasons for declining jurisdiction

Question 15

eerie doctrine

Answer 15

Step 1: is there a fed law on point that directly conflicts with state law
Apply fed law - bc supremacy clause
Feeral Rules of Civ Pro (FRCP) governs if valid
Presumptively valid if its arguably procedural

Step 2: fed judge must apply state law if issue i substantive and no applicable fed law
Clearly substantive
conflict/ choice of law rules
Elements of a claim or defense
Statutes of limitation
Tolling of stattues of limitation
Standard for granting a new trial bc jury’s damages award was excessive or inadequate

Step 3: determining whether issue is substantive
Outcome determinative
Appling or ignoring stat rule affect outcome = if so probably substantive
Balance interest factors
Fed or state system has strong interest in having rule applied= greater interest applied
Avoid forum shopping
Fed ct ignores state law on issue will cause parties to flock to fed ct = should apply state law

Question 16

venue

Answer 16

where to bring case, in which fed ct to bring it

Two possible venues
Any district where all Ds reside or (residential venue)
Where substantial part of claim arose or substantial part of prop is located (transactional venue)

Residential venue
Any district where all Ds reside
If D in all different districts in same state
Venue proper in any district
Human resides in fed district where she is domiciled
Business resides in the district where it is subject to PJ for the case

Transactional venue
Substantial part of claim must arise in the district
More than 1 district can satisfy requirement

Miscellaneous venue matters
Doesnt matter where P resides
Venue rules same for diversity or FQ
D resides outside of US venue proper in any fed district ct

Question 17

Transfer ( prover v. improper)

Answer 17

One transferring = transferor
One where case sent = transferee
Transferee must be a proper venue and have PJ over the D and generally those must be true w/o waiver by the D

Transfer from a proper venue
Convenience of the parties and witnesses in the interests of justice
Burden on person seeking transfer (usually D)

Factors considered
Public:
Law applies
What community should be burdened with jury service
Desire to keep local controversy in local ct
Private
Convenience: where D and evidence found

Effect on choice of law
Transferee ct usually must apply choice of law rules of transferor ct

Effect on forum selection clause
Provision which parties agree that dispute b/n them will be litigated in particular place
Fed law enforces if not unreasonable
Unless public interest factirs say otherwise
Transferee ct applies own choice of law rules

Original venue is improper
Transfer if in interest of justice or dismal for improper venue

Question 18

forum non conveniens

Answer 18

Center of gravity is elsewhere in another judicial system
Stay or dismissal (transfer not possible)
There is an alternative forum, but the venue is outside of the U.S
Other ct must be adequate
Adequate unles P can get no remedy there

Question 19

complaint- pleadings

Answer 19

Filing of complaint commences an action

Content
Grounds of SMJ
Need not allege grounds of PJ or venue
Short and plain statement showing P is entitled to relief
Demand for relief sought

Details required
Sufficient facts to support a plausible claim
D challenge under 12 (b)(6)
Judge determine plausibility

Special pleading requirements for certain cases
Plead with particularity
Cases
Fraud
Mistake
Special damages

Question 20

D response (12 motions, answers)

Answer 20

Two ways
By motion
By answer

D must respond in 21 days after being served with process
If waived service D has 60 days from when P mailed the waiver form to respond

Motions
12 e:
motion for more definite statement = complaint so vague that D can’t respond , make before answering
12(f)
Motion to strike asks ct to remove redundant or immaterial things from a pleading
Any party can move to strike
12 (b)
Defenses waived if not put in the first rule 12 response (motion or answer)= 3Ps and V
Lack of PJ
Improper venue
Improper process
Improper service of process ( summons and complaint not served right)

Defenses can be raised later
Failure to state a claim
Failure to join an indispensable party
Lack of SMJ can be raised at anytime

Denial of 12 motion
Must serve answer no later than 14 days after otice of denial

Answers
Response to allegation in complaint
Admit
Deny
Failure to deny is an admission except regarding
the amount of damages
Lack sufficient information
Effect of denial
Party can’t do this if answer to allegation in her
control
Raise affirmative defenses
Common ones
SoL
SoF
Res judicata
Self defense
Failure to assert ct may treat it as waived subject to timing rules
No need for P to respond

Question 21

amended pleading ( right, time, variance, SoL)

Answer 21

Right to amend
P has right to amend complaint ONCE after 21 days after D serves first rule 12 response
D has right to amend once no later than 21 days of serving it
May include omitted rule 12 (b) waivable defense in amendment )

After time to amend expires
With ct permission if justice so requires
Allowed unless delayed too long, will prejudice other party or would be futile

Variance
When evidence at trial doesn’t match what was pleaded
If other party fails to object at trial, party introducing the evidence may move to amend the complaint to conform to the evidence

After SoL has run (relation back)
Amended pleading treated as if filed on date that original pleading filed
Relate back = pleading ocncerns sme conduct, transaction, or occurrence as the original pleading
Treat the amended pleading as though it was filed when the original was filed so avoid SoL

To change defendant
Amendment concerns same conduct, transaction, or occurence
D had knowledge of case so wont be prejudiced by amendment
D knew or should have known that P made a mistake
Knowledge must have come w/i the period for service process (90 days)
P sued wrong D but the right D knew about it

Question 22

supplemental pleadings

Answer 22

Pleadings set forth things that happened after th the pleadings were filed
No right must make a motion

Question 23

Rule 11

Answer 23

Certifying that to best of your knowledge and belief, after reasonable injury, these things are true
Paper not presented for improper purpose
Legal contentions warranted by law or good argument law should be changed
Factual contentions and denials have evidentiary support

Continuing certification

Sanctions
Purpose is to deter a repeat of conduct
Imposed against party, lawyer and or lawye’s firm

Can be raised sua sponte ( on its own motion)
Issuing an order to show cause why sanctions should not be imposed
Sanctioned party an opportunity to be heard

Types of sanctions
Non monetary
monetary=paid to court

Safe harbor provision
Party seeking sanctions must serve motion on opponent
Party in violation has 21 days to fix the problem and avoid sanctions
If doesnt then can be filed with ct

Question 24

Joinder (claim, proper parties)

Answer 24

How many parties/ claims can be added to a case
Requirements
Authorized by rule
SMJ

claim by P
P may join as many claims as P has against D
Must be SMJ

proper Ps and Ds
Can join multiple Ps or D if :
Arise from same transaction or occurrence AND
Raise at least one common question of law or fact

Question 25

Necessary and indispensable parties

Answer 25

Requirements
Is absentee (nonparty) necessary and required?
Can absentee be joined?
Can case proceed without absentee?

Is absentee (nonparty) necessary and required?
Three tests
Can complete relief be accorded among existing parties
Will absentee’s interest be harmed (most likely)
Will D be subject to multiple or inconsistent liability
Joint tortfeasors are never necessary

Can absentee be joined?
Feasible if
Personal jurisdiction over absentee and
Federal subject matter jurisdiction over claim by or against absentee
If cant be joined
Ct decide whether to proceed or dismiss case
If dismiss rather than to proceed without person is idensivke
Indispensable = party needed for action to proceed rather than be dismissed

Can case proceed without absentee?
Ct considers whether
Alternative forum available
Actual likelihood of harm yo absentee and
Can county shape relieved to avoid harm to absentee

Question 26

counterclaim

Answer 26

any claim back against complaining party= usually by D gainst P
Response required w/i 21 days of service

Types
Compulsory
Arises from same transaction or occurrence
Use it or lose

Permissive
Doe not arise from same transaction or occurrence
Not lost - can sue in separate case
SMJ is often the issue

Question 27

crossclaim

Answer 27

claim against co-party
Arise from same transaction or occurrence as the underlying action
Not compulsory can be asserted in another case

Question 28

impleader ( 3rd party claim, how brought in, once brought in)

Answer 28

Brings in new party

Look For indemnity (full) or contribution (pro-rata) cases
3rd party shares part or whole liability

Is permissive

How brought in
D must file a 3rd party complaint naming TPD and
Have complaint formally served on the TPD
Right oo implead w/i 14 days of serving the answer
After 14 days ct permission is needed

After TPD brought in
May assert claims against P and P can assert claims against them that arise out of same T/O
SMJ os required

Question 29

intervention

Answer 29

stranger/ nonparty who wants to intervene

Requirements
First requirement: timely filed motion: do not want to slow it down

Second requirement: nonparty has an interest relating to the prop or transaction that is subject of action

Third requirement: interest disposing of the action may as a practicle matter impair or impede the unknown parties interest

Fourth requirement: no one already representing nonparty’s interest

Types
Permissive : 1 common question of law or fact
Usually allowed unless it would cause delay or prejudice to someone
Need SMJ
Would be considered a P for diversity case so limitation applies for supplemental jurisdiction

Question 30

interpleader

Answer 30

as a device designed to enable a party who might be exposed to multiple claims to money or property under the party’s control to settle the controversy in a single proceeding. ( multiple claims leading to inconsistent obligation)
each claimant is a required party

When there is not enough $ to cover the amount claimed by the number of clamants

Interpleader can be brought by P or D
Plaintiff- person holding it invoke actions to bring all claimants
Defendant- law suit b/c want money or property

A party can have an interest in the prop in dispute and still seek an interpleader
Claimant’s interest do not have to be identical
Claims do not have to be liquidated b4 interpleader action

Question 31

class actions

Answer 31

Case in which reps sue on behalf of groups

Initial requirements
Numerosity
Too many class members fo rpracticable joinder
Commonality
Must be some issue in common to all class
members
Typicality
Reps claims are typical of claims of the class
Representative adequate
Class rep will fairly and adequately rep class
Types
Prejudice
Class treatment necessary to prevent harm or
prejudice
Very rare
Injunctive or declaratory relief
D treated class members alike
Cannot seek damages
More likely on exam
Common questions or damages
Watch for this one on exam
Show
Common questions predominate over individual
ones
Class action is superior method for handling
dispute 4

Ct must certify class
Define class, claims, issues, and defenses
Court appoints counsel
Must fairly and adequately rep the interests of the class
Certification is immediately appealable

Notice to class
Ct must notify class members that they are in class
Individual notice to all reasonably identifiable members
Notice paid for by rep ( tell them)
Opt ot
Will be bound by the judgment if dont opt out and
Can enter a separate appearance through counsel
only required in type 3 class actions

No right to opt out in TYpe 1 or type 2 class actions

Settlement of class action
Parties can settle or dismiss a certified class action only by ct approval
If type 3 ct also might refuse to approve the settlement unless members are given a second chance to opt out

SMJ in class actions
Assert right under fed law =FQ jurisdiction
Diversity
Only citizenship of class rep considered and her claim must exceed 75k

Class action Fairness ACt (CAFA)
Special grant of SMJ
class=at least 100 members
Any class member diverse from any D
Aggregated claims exceed $5mill
Any D may remove
Local actions stay local

Question 32

initial disclosures

Answer 32

Names numbers and addresses of ppl with discoverable info if might be used to support claims or defense

Documents (ESI, tangible things) if might be used to support claims or defenses
Those that are nit in party’s control need not be disclosed

Computation of damages
Anyone claiming monetary relief

Insurance coverage
Parties must disclose any insurance that might cover all or part of judgment
STILL DOESN’T MAKE ADMISSIBLE

Penalty for failure to disclose
Party can’t use undisclosed material unless harmless

Question 33

required disclosures about an expert witness

Answer 33

Disclose at time directed by ct

Identify EW who may provide testimony at trial

Consulting experts need not be disclosed absent exceptional circumstances

Contents of disclosures
Testifying experts must be disclosed
Written report by expert must be disclosed
Draft reports and communication are protected work product

After above, party may take the deposition of the EW

Failure to disclose= can’t use EW in the case unless the failure was justified or harmless

Pretrial disclosures
No later than 30 days before trial, parties must give detailed info about their trial evidence
ID of witness who will testify
Esi
Other things intend to introduce

Question 34

deposition (limits, use, on organization)

Answer 34

Limit on deposition of nonprty - farthest required to travel is 100 mi from were reside/ employed

Deposition of orgganization
Notice a deposition of an organization describing the facts that she want to discover in deposition
Organization must designate a person to testify on that matter

Limits on depositions
Unless ct orders otherwise:
No more than 10 depositions
Cannt depose same person
No more than 7 hours

Use of depositions
To impeach
For any purpose if deponent is an adverse party or
For any purpose if deponent unavailable for trial unless abscence procures by party seeking to introduce evidence

Question 35

interrogatories

Answer 35

Written questions to be answered in writing under oath
Only to parties
Limited to 25 ( unless ct order or stipulation)
Must answer in 30 days

Must answer interrogatories based upon information reasonably available

If answers to interrogatories burden of finding the answer would be about the same for either party, responding party can allow requesting party to have access to records

Contention interrogatories
Interrogatories that inquire about legal contentions are permitted

Question 36

medical exams request to produce

Answer 36

Ct order required

Parties only
Or in parties custody or control

Show
Health must be in controversy
Good cause

Requesting a copy of report
Person being examined can get copy
Waive any doctor patient privilege with own doctir
Produce allmedical reports by own doctor about same medical condition on request

Question 37

scope of discovery (work product)

Answer 37

Party can discover anything relevant to claim or defense and proportional to needs of the case

Protective orders (ESI)
D can more for protective order or object to discovery of ESI
Undue costs are considerationf for ESI
COurt my allocate costs if P show good cause to obtain despite costs

Privilege

Work product protection
Material prepared in anticipation of litigation is protected
Can ve prepared by the party herself or by any rep of a party
Qualified vs absolute work product
Discovery of work product
Must show substantial need and undue hardship = qualified work product
Opinion work product cannt be discovered
Mental impressions, conclusions, opinions, or legal theories of the disclosing party and cannot be discovered

Withholding discovery
Must claim protection expressly
Must prepare privilege log
List material claim protected by date author recipient and privilege or protection claim

Question 38

preliminary injunctive relief

Answer 38

Ct order that D either
Do something or
Refrain from doing something

Preserves status quo until trial

Can not be issued ex parte

Burden on applicant to show
Irreparable harm
Likely to win on the merits
Balance of hardships
Public interest

Additional requirements
Applicant must post a bond
Must state its terms in specificity and describe in detail what D must do or refrain from doing and why it was issued
In granting or denying , ct must make specific findings of fact and separate conclusions of law
May be appealed as of right

Question 39

temporary restraining order

Answer 39

preserving status quo until have hearing on the preliminary injunction

TRO ex parte (without notice to other side) only if
Applicant files paper under oath clearly showing that if TRO is not issued she will suffer immediate and irreparable harm is she has to wait
Applicants lawyer certifies efforts to give oral or written notice to D or D’s lawyer

If TRO issued applicant must post bond to cover other side’s costs and damages in case TRO was wrongful

Contents
State terms specifically
Describe detail what D must do
State why it was issued and state why the threatened injury to the P was irreparable

Can not exceed 28 days ( 14 days + 14 day extension)
Treated like a preliminary injunction after 28 days

Question 40

voluntary dismissal

Answer 40

Without ct permission
P may withdraw case if D has not filed answers or motion for summary judgment

With ct permission
P makes motion for voluntary dismissal
Ct’s discretion to grant or deny
1st voluntary is w/o prejudice
2nd voluntary dismissal extinguishes claim

Question 41

default

Answer 41

P may seek D’s default if D doesn;t respond to complaint within:
21 days after service of process 60 days if process waived

Not automatic
P must move for entry of default
D can respond late until default on record

Default judgment
Clerk cn enter default judgment if
D made no response (has not appear)
Claim for sum certain
P gives affidavit of amount owed
D is not a minor or incompetent
Hearing and judge’s discretion if clerk can’t enter
Recovery limited by amount in complaint

Relief from default
Set aside
Good cause
Viable defense

Question 42

motion to dismiss for failure to state a claim

Answer 42

Rule 12(b)(6)
Ct looks only to alegation of facts in complaint
Do these facts (if true) state a plausible claim
What judge considers
Look only at fact on face of the complaint
If these facts are true do they state a plausible claim
Non = P hasnt stated a claim
Judge might allow P to amend complaint to try to state claim

Question 43

motion for summary judgment

Answer 43

Must show
No genuine dispute on a material fact and
Is entitled to judgment as a matter of law

Discretion to deny motion
Measured by an abuse of discretion standard on appeal

Any party can move for SJ no later than 30 days after close of discovery
Motion can be for partial judgment

Matters considered
Can look at evidence
Parties proffer evidence
Affiavits
Declarations
Deposition testimony
Interrogatory
Views evidence in light most favorable to nonmoving party

‘Ruling on SJ can ve delayed if party needs moe time to respond
May file a affidavit or declaration w/ ct stating what the evidence fould be

Pleadings to support SJ
Not considered evidence unless verified
Admissions

Question 44

Rule 26 (f) Conference

Answer 44

21 days before the ct scheduling order, parties meet and confer to discuss production of required initial disclosures claims defenses settlement and preservation of discoverable if

Present to ct detailed discovery plan no later than 14 days after conference

Contents
Views and proposals on timing issues about discovery of ESI including how will be produced and any probs retrieving

Question 45

Jury trial (mixed suits, voir dire, challenge, jury instructions)

Answer 45

Mixed suits
Actions at law = jury
Actions in equity= judge
Mixed suits
Facts underlying damages tried first before jury
Facts relating only to equity claim are tried to judge

Jury must be demanded w/i 14 days of last pleading showing jury triable issue
Last pleading addressing a jury issue is usually the answer

Size
jury should consist of 12
A state constitutionally might use a jury w/ 6 members in a criminal case
No view as to whether any # less than 6 would suffice, we conclude that a jury of 6 satisfies the 7th amendment’s guarantee of trial by jury in civil cases
At least 6 no more than 12
Verdict must be unanimous

Challenging individual jurors
Two kinds
For cause and
Permit a prospect juror to be rejected when partiality can be shown

Peremptory
Permit rejection of jjurors w/o any statement of reason and usually are based on an assumed partiality that may not be susceptible of proof
Usually limited for 3
Must be used in race and general neutral manner

Objection to jury instructions
Judge must tell parties what instruction it will give and what instructions were refused
Party must object on the record
Objection must be before jury charged
If raised on appela looking at clear error

Question 46

types of verdict

Answer 46

General = who wins and what relief
Clerk enters it

Special verdict= jury answers questions, no bottom line (judge will give bottom line)
The answers are consiste with each other and with the verdict judge approves judgment and clerk enters it

Combo general and special = general with written questions
If the answers are consistent with each other but inconsistent with the verdict ct may enter an appropriate jdgment consistent with answers
If answers are inconsistent with each other and one or mor inconsistent with the general verdict no judgment may be entered
Could order to reconsider or order new trial

Question 47

motions at and after trial

Answer 47

Motion for judgment as a matter of law ( like summary judgment but once trial already started)
Directed verdicts
Judge grants the motion and enters judment
Standard
Reasonable ppl could not disagree on result
Ct views evidence in light most favorable to non-moving party
Motion can be made after the opposing party has been heard on the issue

Renewed motion for JMOL
Comes up after trial after jury returns verdict
Same standards as JMOL
Timing
28 days after entry of judgment
Requirement for motion: a motion JMOL at trial must have been made

New trial motion
Timing same as RJMOL
w/i 28 day
Its a do over bc something at trial requires it
Some reasons
Judge gave erroeous jury instruction
New evidence was discovred that could not have been discovered before with due diligence misconduct was committed by a juror, party or lawyer
Judgment is against weight of evidence
Damages are inadequate or excessive

Question 48

remittitur and additur

Answer 48

Remittur or new trial
Damage figure shocks the conscience
P remits a portion of damges or undergoes new trial
Both state and fed ct

Aditur or new trial
Damage figure must schock conscience
Add to damages or D undergoes a new trial
Not in fed ct

Question 49

final judgment rule

Answer 49

Final judgment is one that determines the merits oof the entire case

Ask
After making the ruling: does the trial ct have nything left to do on the merits of the case
If yes = interlocutory order
If no = judgment is final
Remand orders with some minor nontestable exceptions are not reviewable on appeal

Granting of a new trial is not a final judgent and thus not appealable

Question 50

notice of appeal

Answer 50

30 days after entry of final judgment
Filed in district ct

Question 51

interlocutory appeals (nonfinal)

Answer 51

Appeal of injunctions and TROs
Orders related to injunctions may be appealed

TRO is not injunction
TRO extended beyond 28 days becomes preliminary injunction

Interlocutory appeals act
Allows for appeal of nonfinaal order if trial judge certifies controlling issue of law with substantial ground for differing opinons

Question 52

standards of review on appeal

Answer 52

Review of question of law
Review de novo no deference given to trial ljudge on questions of law

Questions of fact in a bench trial
District judge determines questions of fact, appeals will affirm unless the findings are clearly erroneous

Review of question of fact in JUry trial
Jury finding of fact will e affirmed unless reasonable ppl could not have made that finding fact

Review of discretionary matters
Ct of appeals will affirm unless the district ct judge abused her discretion

No reversal is required if the error is harmless , did not affect th eoutcome of the case

Question 53

claim and issue preclusion basics

Answer 53

Whether a judgment already entered precludes litigation of any matters in another case

If case 1 and case 2 are in diff judicial system the ct in case 2 applies the preclusion law of the judicial system that decided case 1

Question 54

claim preclusion (res judicata)

Answer 54

Claimant may sue only once to vidicate a claim

Requirements
Same claimant suing the same D

Case 1 must have ended in a valid final judgment on the merits
On merits unles
Based on lack of jurisdiction
Improper venue
Failure to join an indispensable party

Same claim
Majority view : same transaction or occurrence
Minority: primary rights view, separate claims for personal injury and property damage

Question 55

issue preclusion (collateral estoppel) requirements

Answer 55

Case 1 ended in valid final judgment on the merits
Same issue actually litigated and determined in case 1
Issue was essential to judgment in case 1
Finding on the issue is basis for judgment
Issue preclusion can be used only against previous party (or in privity with party)

By whom is preclusion used
Can it be used by someone who was not party to case 1

Nonmutual defensive issue preclusion
Person asserting preclusion to avoid liability was not party to first case
Person to who preclusion to be used against had full chance to ligate issue in case 1

Nonmutual offensive issue preclusion
Person asserting preclusion to support claim was not party to first case
Cant do this unless it would be fair
Fairnes factors
Party to be bound had a full and fair opportunity to litigate in case 1
Party to be bound had a strong incentive to litigate case 1
Party asserting issue precluion could have easily joined to case 1
There have been no inconsistent findings on the issue