Civ Pro

Question 1

Clerk can enter judgment for the amount set forth in Plaintiff’s affidavit if:

Answer 1

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 2

temporary restraining order

Answer 2

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; (ii) provide some security, the amount of which is determined but he court, to pay for any costs and damages incurred but he adverse party if he was wrongfully enjoined or restrained. out may grant in its discretion an ex party temporary restraining order if the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate irreparable injury will result to the moving party before the adverse party can be heard in opposition.

Question 3

motion for new trial

Answer 3

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

Question 4

Interlocutory Appeals Act

Answer 4

Review under the IAA is discretionary with the court and may be available when: (i) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and an appeal would materially advance the conclusion of the case, and (ii) at least two appellate court judges agree to hear the appeal.

Question 5

Interlocutory (non final) order that may be immediately appealable:

Answer 5

(i) an order granting an injunction (or continuing modifying dissolving or refusing to dissolve an injunction) (ii) an order appointing a receiver or refusing to wind up or take steps to accomplish purposes of receiverships (iii) decrees in admiralty cases that find liability but leave damages to be assessed later (vi) a patent infringement order where only an accounting is wanting and (v) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.

Question 6

A notice of appeal must be filed within __ days from entry of judgment

Answer 6

30

Question 7

What standard of review for jury instruction if you fail to raise during trial or if you do raise during trial?

Answer 7

if you fail to raise an objection as to the jury instruction then any appeal regarding such will be reviewed using a plan error standard of review.
If you timely object to the instruction during trial then any appeal will be reviewed using an abuse of discretion standard of review.

Question 8

when an appellate court reviews a trial court’s ruling on post-trial motion for judgement as a matter of law (or renewed motion) what standard does it use?

Answer 8

de novo because the issue is on of law

Question 9

when an appellate court reviews a trial court’s denial of a motion for new trial, what standard does it use?

Answer 9

abuse of discretion

Question 10

On motion and just terms, the court may relieve a party from a final judgment or order in her discretion on the following grounds:
and what standard of review will be used if appealed?

Answer 10

(i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; (iii) fraud, misrepresentation, or other misconduct of an adverse party; etc. the motion must be made within a reasonable time not to exceed 1 year.
such a motion is left to the trial judge’s discretion an on appeal will be reviewed Onan abuse of discretion standard of review.

Question 11

Two time restrictions on removal of a diversity case to federal court:

Answer 11

(1) a case based on diversity must be removed within 30 days of the defendant’s receipt of a copy of the paper (motion, order, etc) that makes the case removable; (2) in no event may the case be removed more than one year after it was commenced in state court.

Question 12

issue preclusion

Answer 12

For issue preclusion to apply,
* (i) there must have been a final judgment;
* (ii) the issue must have been actually litigated and determined;
* (iii) the issue must have been essential to the judgment; and
* (iv) the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action.

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 13

claim preclusion

Answer 13

Claim preclusion is appropriate if
* (i) the earlier judgment is a valid, final judgment “on the merits”;
* (ii) the parties are the same; and
* (iii) the same “cause of action” (or “claim”) is involved in the later lawsuit.

If claim preclusion applies, merger and bar describes the effect it has

Question 14

merger and bar

Answer 14

used to indicate that claim preclusion (res judicata) is in effect, where the claimant won the earlier lawsuit, the claim is said to be merged into the prior judgment. Where the defendant won the earlier lawsuit, the claim is said to be barred by the prior judgment.

Question 15

At common law in federal court are parties entitled to a jury whether or not the state court would determine that no right to a jury trial exists?

Answer 15

yes parties are entitled whether or not the state court decides there’s no right.

Question 16

Rule 11 Sanctions

Answer 16

May consist of monetary penalties or non monetary directives and may be imposed on parties, attorneys, or law firms that are responsible for the violations. Absent exceptional circumstances a law firm is responsible for the conduct of its employees. Court has discretion to impose sanctions “limited to what is sufficient to deter repetition of such conduct”.

Question 17

Rule 38 waiver of jury trial

Answer 17

A party who desires a jury trial on some or all of the fact issues must make a demand to the court for a jury trial within 14 days after the service of the last pleading directed to the jury-triable issue, and serve it on all parties. Otherwise the right is deemed waived. However, the Supreme Court has held that int eh absence of compelling reasons to the contrary, a court should grant relief from the waiver if the issue is normally tried by a jury.

Question 18

When the plaintiff fails to prosecute the case or comply with the federal rules or a court order…

Answer 18

rule 41(b) allows a court to order an involuntary dismissal against a plaintiff. An involuntary dismissal is with prejudice, meaning that it operate as adjudication on the merits, unless the court orders otherwise.

Question 19

“two dismissal rule”

Answer 19

provides that if a plaintiff has voluntarily dismissed an action in federal or state court on the same claim previously, a subsequent dismissal not hat claim is with prejudice.

Question 20

Compulsory Joinder

Answer 20

1.) an absentee must be joined as a party to the case if it is determined that:
* the court could not accord complete relief among the existing parties (worried multiple suits); or
* the absentee’s interest may be harmed if he’s not joined; or
* the absentee claims an interest that subjects a party (usually defendant) to a risk of multiple obligations

2.) and, the court has personal jurisdiction over the absentee and joining him would not destroy diversity or venue.

3.) If the court doesn’t have PJ over him or it would destroy diversity or venue, then the court may nonetheless proceed in equity and good conscience without absentee. Consider:
* - prejudice to the absentee and parties
* - adequacy of judgment
* - ability to shape relief to avoid prejudice
* - availability of alternatives

A joint tortfeasor is never necessary.

Question 21

work product

Answer 21

protects documents and material prepared in anticipation of litigation, not the underlying facts in the document itself.

Question 22

duty to supplement interrogatories

Answer 22

a party is under a duty to amend a prior response if he knows that the response, though correct with made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

Question 23

compulsory counter claim

Answer 23

under 13(a) a party in an action must assert as a counterclaim and claim that arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim. Most courts hold that a counterclaim omitted from an action that terminates in a default judgement will be barred from any subsequent suits

Question 24

impleader

Answer 24

where the defendant is bringing in a new party (third party defendant) to shift liability that the defendant will owe to the plaintiff (indemnification or contribution)

Impleader is permissive, meaning you need. not bring it in the current case. Its not a it wasn’t me it was him claim its a if you find me liable he should pay or help pay claim.

Question 25

limitation on supplemental jurisdiction

Answer 25

In cases of diversity, claims by plaintiffs generally cannot invoke supplemental jurisdiction **unless **there is a case where there are two plaintiffs whose claims share a common nucleus of operative fact and one of their claims doesn’t meet $$ requirement.

Question 26

supplemental jurisdiction

Answer 26

In order for a claim to be joined under supplemental jurisdiction
2. Does the claim share a common nucleus of operative fact with the claim that satisfies SMJ
2.

Question 27

Personal Jurisdiction

Answer 27

Personal Jurisdiction is the courts power over the parties. Because the plaintiff filed the case, the plaintiff consented to PJ, so the issue is whether the court has PJ over the defendant.
The two step analysis to determine whether the court has PJ over the defendant is (1) it must fall within a statute (long arm) and (2) it must satisfy the constitution (due process).
For the first requirement, each state has its own long arm statute granting PJ over out of state residents. Most of these statutes grant the court the ability to exercise PJ to the full extent of the constitution. In this cases, the first and the second requirement merge.
For the second requirement, to determine whether the exercise of PJ satisfies the constitution we ask whether the defendant has minimum contacts with the forum so jurisdiction does not offend traditional notion of fair play and substantial justice. We weight factors such as contact, relatedness, and fairness. For there to be “minimum contacts” between the defendant and the forum state, the defendant must have purposefully availed himself in the forum and it must be foreseeable that the defendant could be sued in the forum. For relatedness we ask whether the plaintiff’s claim arises from or relates to the defendants contact. If yes, then there is specific PJ if PJ would be fair and reasonable based not the burden on the defendant and witnesses, the states interest and plaintiff’s interest. If the claim does not arise from or relate to the defendants contacts, then there has to be general PJ over the defendant. There is only general PJ over the defendant if he is “at home”. This means where he is served, where he is domiciled if a human, or where if a corp it is incorporated and state where principal place of business is.

Question 28

Notice must be

Answer 28

reasonably calculated under all the circumstances to apprise interested parties of the action

Question 29

Proper Service: What, By Who, When, Where

Answer 29

What: Consists of a summons and the complaint.
Who: Service can be made by anyone 18 years or older and not a party to the action.
When: Must take place within 90 days of filing the complaint.
Where: personal service - anywhere if given to the defendant personally.
substituted service - at the defendant’s usual place of abode; with someone of suitable age and discretion; who resides there.
Agent - can serve defendant’s agent if receiving service is in scope of agency
according to state law - method that is permitted by state law where fed court is or where service is made.

Question 30

Rule 26(f) conference

Answer 30

parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan. The parties then must submit a proposed discovery plan to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court.

Question 31

What is the procedure to obtain a default judgment

Answer 31

The defendant can motion to the clerk to enter a default if the defendant has not answered the complaint within 21 days of being served. Entry of default cuts off defendants ability to answer but doesn’t give plaintiff automatic relief. The plaintiff must then motion for default judgement. If the claim is not for a sum certain, plaintiff doesn’t give affidavit of sum, or the defendant is a minor than the clerk can’t enter judgement - judge has to. If the defendant has “appeared” which means any actual formal appearance before the court or any other action that indicates that the defendant intends to contest the case on the merits, then the defendant must be notified of the motion by 1st mail before 7 days of the hearing for judgment. Judge holds hearing to decide in his discretion to enter default judgement and determine damages.

Question 32

Affidavits may be presented in support of summary judgment motion if

Answer 32

they are made on personal knowledge by someone competent to testify and ht facts would be admissible in evidence.

Question 33

When must the identity of individuals likely to have discoverable information need to be disclosed?

Answer 33

Without waiting for a discovery request, as an initial disclosure, a party must provide any individual likely to have discoverable information that the disclosing party might use to support its claims or defenses (unless solely for impeachment)

Question 34

An amended complaint will relate back to the time the original complaint was filed if

Answer 34

(i) the claims in the amendment arise from the same transaction or occurrence as the claims set out in the original complaint and (ii) within the time allotted for serving the original complaint (90 days from filing) the new defendant received such notice of the action that it will not be prejudiced in defending on the merit and knew or should have known that the action would have been against it.

Question 35

What orders are reviewable

Answer 35

Generally, only final orders are reviewable. The exceptions are
1. interlocutory orders such as preliminary or permanent injunctions (not temp restraining orders unless extended beyond 28 days then it = prelim injunction)
2. order of class actions within 24 days of order
3. collateral order = (i) distinct from the merits of the case (ii) involves an important legal question; and (iii) is essentially unreviewable if parties await a final judgment

Question 36

peremptory challenge

Answer 36

allow an attorney to disqualify a potential juror because the juror displays an attitude or some characteristic that appears unfavorable to the attorney’s client but that does not rise to the level of bias that would present grounds for a challenge for cause. Cannot use peremptory challenges if the court suspects the challenge is for race, national origin, religion or gender which violates equal protection rights 14th. If court suspects, opposing party can object and attorney needs to give a non objectionable means for excusing.

Question 37

remittitur

Answer 37

if the judge believes that the jury’s compensatory damages award is so excessive as to shock the conscience the judge may order a new trial or may offer the alternative of remittitur. The plaintiff is given a choice between accepting an award less than that awarded by the jury or submitting to a new trial.

Question 38

motion to compel effects

Answer 38

If a party fails to provide discovery or provides incomplete discovery, including disclosures and answers to interrogatories and deposition questions, the other party may move to compel discovery. However, a motion to compel must certify that the moving party has made a good faith attempt to confer with the opponent to obtain the discovery without court intervention. The certification (and an actual attempt at resolving the discovery dispute without court intervention) is a prerequisite to an award of reasonable expenses (which includes attorneys’ fees).

Question 39

a motion for new trial may be granted because of

Answer 39

1. an error during the trial (usually going to the admissibility of evidence or the propriety of the jury instructions)
2. Because the verdict is against the weight of the evidence (limited to cases where the judge finds the verdict seriously erroneous)
3. because of jury misconduct
4. because the verdict is excessive or inadequate

Question 40

documents prepared in anticipation of litigation

Answer 40

Documents prepared in anticipation of litigation by a party or its representative are not discoverable unless the opposing party can show substantial need and that it cannot obtain the materials in an alternative way without undue hardship.

Question 41

claims against multiple defendants or by multiple plaintiffs must

Answer 41

(1) arise from the same transaction or occurrence and (2) raise at least one common question of law or fact

Question 42

Permissive counter claim

Answer 42

One that does not arise from the same transaction or occurrence as the plaintiff’s claim. Party isn’t required to file it, can sue in a separate case.

Question 43

Intervention

Answer 43

A nonparty absentee can use intervention to bring itself into the case either as plaintiff or defendant. If the absentee has an interest at stake then they have a right to intervene. Must be timely and is permissive.

Question 44

Interpleader

Answer 44

An action in equity in which a third party who holds property on behalf of another compels the parties who claim the property to litigate the claim so that the court can settle their rights; often used by insurers in cases in which several parties make conflicting claims to the same property.

Question 45

If you waive service of process how much time do you have to answer

Answer 45

Although a defendant typically must serve an answer or other appropriate response within 21 days after being formally served with process, a defendant who waives service of process is allowed 60 days from the date on which the plaintiff mailed the summons and complaint in which to serve a response.

Question 46

When can judge issue an ex parte temporary restraining order without notice of the hearing to the adverse party

Answer 46

if the moving party does the following: (i) gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition; (ii) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and (iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained.

Question 47

permissive joinder

Answer 47

Under Federal Rule 20, parties may permissively join as plaintiffs (or be joined as defendants) whenever: (i) some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and (ii) there is a question of fact or law common to all the parties.

Question 48

Content of Complaint

Answer 48

1. A statement of grounds of subject matter jurisdiction (don’t need PJ)
2. a short and plain statement of the claim showing that the plaintiff is entitled to relief; and
3. a demand for relief sought

• must plead sufficient fact to support a plausible cliam
• FRAUD, MISTAKE, & SPECIAL DAMAGES must be pleaded with more detail - particularity or specificity

Question 49

Waivable deffenses if not put in the first motion or answer

Answer 49

• lack of personal jurisdiction
• Improper venue
• Improper service of process
• Improper process

“3 Ps and a V”

Question 50

number of interrogatories and depositions allowed

Answer 50

Ints: 25
Depositions: 10

Question 51

Additur

Answer 51

A motion to increase a jury’s award of damages is a motion for additur. Additur is unconstitutional in federal court

Question 52

home-state defendant rule - removal

Answer 52

Where the federal court would have subject-matter jurisdiction based on diversity and one of the defendants is a citizen of the forum state, the claim cannot be removed to federal court.