C

Question 1

Personal JX two-step analysis?

Answer 1

PJ must fall w/in 1)state statute and 2) satisfy the constitution

Question 2

con analysis?

Answer 2

does the D have min contacts w/forum so jx does not offend trad notions of fair play and sub justice

Question 3

factors for con analysis

Answer 3

1) contact 2)relatedness 3) fairness

Question 4

1) contact factors

Answer 4

1) purposeful availment and 2) forseeability

Question 5

1) purposeful availment

Answer 5

voluntary act of D reaching out to the forum and contact must result from D targeting forum (can be effects)

Question 6

purposeful availment examples

Answer 6

(1) Marketing (2) using the roads
(3) establishing a domicile (4) travel
(5) sending a tortious email into the forum (note that the defendant
here need not be physically present in the state); and (6) maintaining an interactive website within the forum may be sufficient for PJ if
the defendant was targeting customers or readers within the forum

Question 7

2) forseeability

Answer 7

is it forseeable D could be sued in the forum

Question 8

2) Relatedness

Answer 8

does P’s claim arise from or relate to D’s contact w/ the forum; if yes then specific PJ, if No, general pj

Question 9

general PJ

Answer 9

if P’s claim does not arise from or relate to D’s contact; D must be athome in the forum or must have registered to do busines in the state and have appointed and agent for service of process there

Question 10

what if D is served w process in the state?

Answer 10

The
court also has general jurisdiction when she is served with
process in the state

Question 11

Fairness (specific pj only)

Answer 11

1) burden on D and witnesses 2) states interest 3) plaintiffs interest

Question 12

Notice= Service of Process (consists of 2 documents)

Answer 12

1) summons and 2) copy of complaint

Question 13

Who can service process?

Answer 13

non party 18+ person, no ct appointment necessary

Question 14

Options for service on individual (4)

Answer 14

1) personal service (in hand delivery. 2)substituted service at D’s usual abode on someone suitable age and discretion who resides there
3) service on agent
4) state law methods

Question 15

service on business org

Answer 15

1) on officer or agent
2) state law methods

Question 16

service on minor or incompetent

Answer 16

use state law where service is made

Question 17

SOP on party in foreign country? (5)

Answer 17

A method allowed by international agreement (for example, the
Hague Convention) may be used. Or, if there’s no such agreement on point, the options (subject to the constitutional requirement that the
method must be reasonably calculated to give notice) are: As directed by the American court; or
* Method allowed by the foreign country’s law; or
* Method directed by foreign official in response to a letter of request (letter rogatory) from the American court; or
* Personal service in the foreign country (unless prohibited by its
law); or
* Mail sent by the clerk of the American court, requiring signed
receipt (unless prohibited by the foreign country’s law).

Question 18

A defendant can waive service of process. To request this waiver:

Answer 18

the
plaintiff mails the defendant a notice and request to waive service.

The plaintiff must include 1) a copy of the complaint and
2) two copies of a
waiver form, with a prepaid means of returning the form (for example,
self-addressed, stamped envelope).

Question 19

If the defendant executes and
mails the waiver form to the plaintiff within 30 days (60 days if the
defendant is outside the U.S.),

Answer 19

she waives service of process. Waiver
can be used for individuals and entities.

Question 20

D does not waive ____ by waiving service

Answer 20

defenses

Question 21

Defendant pays for ___ as penalty for not waiving (unless good cause)

Answer 21

service

Question 22

Process may be served within the state in which the federal court
sits. It may be served outside that state

Answer 22

if state law allows. That is
why whether we have PJ is the same for federal court as it is for state
court.

Question 23

D is immune from process while

Answer 23

appearing in another case

Question 24

SMJ

Answer 24

courts power over the case

Question 25

state courts have

Answer 25

general SMJ- which means they can hear any kind of case; within the state courts system

Question 26

two bases for federal SMJ

Answer 26

1) federal question
2) diversity of citizenship

**smj cannot be waived (this is about gov structure)

Question 27

diversity of citizenship reqs

Answer 27

1) right kind of litigant ( alienage = non us citizen and citizen of US state) &
2) amount in controversy exceeding 75K

Question 28

who are the right kind of litigants

Answer 28

completely diverse litigants; no SMJ if any P is citizen of same states as any D (determined when case is filed)

Question 29

No Fed SMJ? No Fed Q?

Answer 29

state court

Question 30

a perm resident is not a citizen of a state for _____ purposes

Answer 30

diversity

Question 31

if tht perm resident is domiciled in the same state as an adverse party

Answer 31

JX is withdrawn

Question 32

citizenship of a human

Answer 32

domicile; but one domicile only

Question 33

how to change domicile

Answer 33

1) phys presence in new place &
2) subj intent to make new place domicile

Question 34

what is the citizenship of a corporation

Answer 34

1) any state or country where incorporated and
2) the one state or country where PBB is

Question 35

PBB (nerve center)

Answer 35

where the coporations managers direct, coordinate, and control the business

Question 36

an unincorporated association takes on the citizenship of

Answer 36

all members

Question 37

a representative of decedent, minor, or incompetent takes on the citizenship of

Answer 37

person represented

Question 38

amount in controversy; whats not included

Answer 38

prejudgment interest not included (interest as part of claim included)

Question 39

good faith allegation by P usually controls UNLESS

Answer 39

to a legal certainty $75k+ not possible

Question 40

aggregation

Answer 40

adding two or more claims to meet the amount req

Question 41

a single P may aggregate all claims against a single D; multiple P’s ____

Answer 41

cant do this

Question 42

look to _____ of claim for joint claim

Answer 42

total value

Question 43

amount in controversy is determined by looking at value of relief to (injunction cost/worth)

Answer 43

plaintiff or defendant

Question 44

fed cts decline actions for (4)

Answer 44

1) divorce 2)alimony 3)child custody 4)probate

Question 45

genuine change of citizenship before action commenced creates diversity even if ___

Answer 45

that was the motive

Question 46

fed Q

Answer 46

1) claim arises from fed law
2) determined by well-pleaded complaint

Question 47

determining well pleaded complaint?

Answer 47

ask: is the plaintiff enforcing a federal right

Question 48

removal

Answer 48

procedure allowing defendant to move case from state court to federal court

Question 49

remand

Answer 49

send back to state court

Question 50

standard for removal

Answer 50

case filed in state ct could have been brought in fed ct- diversity or federal question reqs met

Question 51

how is a case removed?

Answer 51

def files a notice of removal in fed ct

Question 52

timing of removal

Answer 52

30 days after service of paper showing case is removable (usually this is service of process- which includes a copy of the complaint)

Question 53

who joins in removal?

Answer 53

all D’s served w process must join

Question 54

Earlier served D may join later served D’s removal even if

Answer 54

30 day period expired

Question 55

What cases can be removed

Answer 55

federal question, diversity of citizenship (SMJ)

Question 56

limits on removal based on diversity (dont remove if…)

Answer 56

1) any D is citizen of forum state
2) one year limit

Question 57

more limits on removal (timing)

Answer 57

1) 30 days to remove from the time it becomes removable

2) no removal more than 1 year after case filed (usually)

Question 58

1 year rule exception - one year restriction does not apply if

Answer 58

P originally joined D to prevent removal (tough to show)

Question 59

removal venue; case must be removed to

Answer 59

federal court embracing the state court **doesnt matter if not proper venue under venue statutes

Question 60

remand- P must move to remand within __ days if defect other than lack of SMJ (fed Q or diversity)

Answer 60

30 days

Question 61

30 day limit _____ apply if fed court has SMJ

Answer 61

does not apply;

Question 62

if removal was improper; bc there was no SMJ then

Answer 62

theres no time limit on ordering remand

Question 63

for cases based solely on diversity jx supplemental jx is ______ for claims by the P against persons made parties under the impleader rules when use of supplemental jx would be contrary to reqs for diversity

Answer 63

not available

Question 64

supplmental jx

Answer 64

gets CLAIMS into a federal case (smj; diversity or fed Q)

Question 65

step 1 for supplemental jx

Answer 65

look for SMJ in additional claim; no need for supplemental if claim SMJ over additional claim

Question 66

step 2 for supplemental jx

Answer 66

must arise from common nucleus of operative fact as claim in existing fed ct case (SAME TRANSACTION OR OCCURRENCE ALWAYS SATISFIES COMMON NUCLEUS TEST)

Question 67

Limitation on supplemental jx

Answer 67

P’s cannot invoke supplemental jx in diversity case

Question 68

step 1 of an Erie question

Answer 68

is there a federal law on point that directly conflicts w state law? (IF SO, U APPLY THE FED LAW SO LONG AS ITS VALID)

Question 69

If its a FRCP its presumptively valid if

Answer 69

it’s arguably procedural (& they are)

Question 69

step 2 of an erie question

Answer 69

Fed judge must apply state law if issue is substantive and no applicable fed law

Question 69

the 5 clearly substantive issues

Answer 69

1) conflict or choice of law rules
2) elements of a claim or defense
3) statute of limitation
4) tolling of statute of limitations
5) standard of granting a new trial bc the jury’s award was excessive or inadequate

Question 69

step 3 of erie

Answer 69

determine whether issue is substantive; 1) outcome determinative 2)balance interest factors- does fed or state sys have a strong interest in having its rule applied
3)avoid forum shopping- if fed ct ignores state law on this issue will it cause parties to flock to fed ct

Question 69

two possible venues

Answer 69

1) any district where all D’s reside
or
2) where substantial part of claim arose or substantial part of property is located

Question 69

residental nuance- venue is proper in any district where D resides if

Answer 69

all D’s reside within state (D’s have to reside in same state for residential venue)

Question 70

transactional venue

Answer 70

substantial part of claim arise in the district (substantial part does not equal all- more than 1 district can satisfy req)

Question 70

for residental venue a business resides in

Answer 70

the district where it is subject to PJ

Question 71

transfer from a proper venue

Answer 71

convenience of the parties and witnesses in the interests of justice

Question 72

transfer and effect on choice of law

Answer 72

tranferee court usually must apply choice of law rules of transferor court

Question 73

forum selection clause

Answer 73

1) ord enforced if not unreasonable 2) unless public interest factors say otherwise (unlikely) 3) transferee court applies own choice of law rules

Question 74

if venue improper ct will

Answer 74

1) transfer if in interest of justice or 2) dismiss

Question 75

forum non conveniens

Answer 75

center of gravity is elsewhere in another judicial system // stay or dismissal (transfer not possible) (p will sue in tht other ct)

Question 76

pleading contents

Answer 76

1) grounds for SMJ (diversity, alienage, fed Q)
2) short and plain statement showing P is entitled to relief
3) demand for relief

Question 77

P must plead sufficient facts to support

Answer 77

a plausible claim

Question 78

matters req more detail or specificity (3)

Answer 78

1) fraud 2) mistake 3)special damages

Question 79

Response: D must respond by motion or answer w/in ___

Answer 79

21 days or (60 if D waived service)

Question 80

12(e)

Answer 80

motion for more definite statement

Question 81

12(f)

Answer 81

motion to strike (anyone can)

Question 82

12(b)

Answer 82

motion to dismiss

Question 83

waivable rule 12(B) defenses

Answer 83

1) lack of personal jx 2)improper venue 3)improper process 4)improper service of process

Question 84

nonwaivable 12b defenses

Answer 84

1) failure to state a claim
2) failure to join an indispensable party
3) lack of SMJ never waived

Question 85

motion to dismiss denied? now what?

Answer 85

D has to answer w/in 14 days

Question 86

D’s answer/pleading

Answer 86

response to allegations in complaint
1) admit
2) deny
3) lack sufficient information

Question 87

failure to deny an allegation= admission //exception??

Answer 87

the amount of damages

Question 88

d’s answer cont’d

Answer 88

raise affirmative defenses; waived if not asserted in answer

Question 89

plaintiff has right to amend complaint once no later than

Answer 89

21 days after the defendant serves her first rule 12 response

Question 90

defendant has right to amend his answer once no later than ___ days after serving it

Answer 90

21 days

Question 91

amendments after time to amend expires

Answer 91

with ct permission if justice so requires:

factors:
allowed unless delayed too long,
will prejudice the other party or
would be futile

Question 92

amended pleading relates back

Answer 92

amended pleading treated as if filed on date that original pleading filed

Question 92

amendment changing defendant

Answer 92

1) amendment concerns same conduct, transaction, or occurrence
2) defendant had knowledge of case so wont be prejudiced by amendment
3) defendant knew or should have known that P made a mistake

Question 93

rule 11 certification; certifying that to best of your knowledge and belief, after reasonable inquiry, these things are true: (3)

Answer 93

1) paper not presented for an improper purpose
2) legal contention warranted by law or good argument law should be changed
3) factual contentions and denials have evidentiary support

Question 94

Joinder reqs

Answer 94

authorized by rule; smj (diversity, alienage, fed q)

Question 95

claim joinder by plaintiff

Answer 95

P may join as many claims as P has against D

must be SMJ (fed q, diversity, alienage)

Question 96

Can join multiple Ps or Ds if:

Answer 96

1) arise from same transaction or occurrence and
2) raise a common q of law or fact

Question 97

necessary and indispensable parties (3 steps)

Answer 97

1) is absentee (nonparty) necessary/req’d
2) can absentee be joined
3) can case proceed w/out absentee

Question 98

Is absentee necessary (3 test)

Answer 98

1) can complete relief be accorded among existing parties
2) will absentee’s interest be harmed (if not brought in) (stock example)
3) will d be subject to multiple or inconsistent liability

Question 99

Can absentee be joined? Feasible if:

Answer 99

personal jx over absentee and
fed smj over claim by or against absentee

Question 100

if absentee cannot be joined, court must:

Answer 100

proceed or dismiss entire case

Question 101

can case proceed w/out absentee? court considers whether

Answer 101

1) alt forum available
2) actual harm to absentee is likely
3) court can shape relief to avoid any harm

Question 102

indispensable party

Answer 102

party needed for action to proceed rather than be dismissed

Question 103

counterclaim

Answer 103

any claim back against complaining party- usually by defendant against plaintiff

-response req’d w/in 21 days of service

Question 104

two kinds of counterclaims 1) compulsory counterclaim

Answer 104

• arises from same transaction or occurrence
• use it or lose it

Question 105

2) permissive counterclaim

Answer 105

• does not arise from same T/O
• not lost- can sue in separate case
  -SMJ is often the issue (fed q, alienage, diversity)

Question 106

cross claim?

Answer 106

claim against coparty arising from same T/O

Question 107

impleader (3rd party claim)

Answer 107

-brings in new party
-for indemnity or contribution

Question 108

intervention?

Answer 108

A nonparty absentee uses intervention to bring herself into the
case. She chooses to come in either as a plaintiff to assert a claim
or as a defendant to defend a claim. The court may realign the intervening party if it thinks the absentee came in on the “wrong” side.
Application to intervene must be “timely.” Intervention can be “of
right” or “permissive.”

Question 109

intervention of right

Answer 109

If the absentee’s interest may be harmed if she is not joined, and
that interest is not adequately represented by the current parties,
intervention is “of right.”

Question 110

permissive intervention

Answer 110

If the absentee’s claim or defense and the pending case have at least
one common question of law or fact, intervention would be permissive and discretionary with court. Permissive intervention is usually
allowed unless it would cause delay or prejudice to someone.

Question 111

interpleader

Answer 111

An interpleader suit permits a person/
stakeholder to require two or more adverse claimants to the stake to
litigate among themselves to determine which, if any, has the valid claim
to it. There are two interpleader procedures in the federal courts: Rule
22 interpleader and section 1335 interpleader (statutory interpleader).

Question 112

class action

Answer 112

A class action is a case in which representative(s) (“rep(s)”) sue on
behalf of a group

Question 113

4 reqs for class actions

Answer 113

1) numerosity
2) commonality
3) typicality
4) adequate representative

Question 114

type 1 - prejudice

Answer 114

class treatment necessary to prevent harm or prejudice
-very rare

Question 115

type 2 - injunctive or declaratory relief

Answer 115

d treated class members alike
-cannot seek damages

Question 116

type 3- common q or damages

Answer 116

-common qs predominate over indiv ones
-class action is superior method for handling dispute

Question 117

certification by court

Answer 117

-ct defines class, claims, issues, and defenses
-ct appoints counsel
-certification is immediately appealable

Question 118

class action fairness act; CAFA grants SMJ separate from diversity of citizenship jurisdiction.

It lets a federal court hear a class action if:

Answer 118

• There are at least 100 members;
• Any class member, not just the representative, is of diverse citizenship from any defendant; and
• The aggregated claims of the class exceed $5 million.
  Also, any one defendant, even an in-state defendant, may remove the
  case from state to federal court. All this makes it easier for interstate
  class actions to go to federal court.
  -local actions stay local

Question 119

initial disclosure

Answer 119

names, numbers, and addresses of ppl w discoverable info if might be used to support claims or defenses

documents (ESI, tangible things) if might be used to support claims or defenses

Question 120

more initial disclosures… (2)

Answer 120

computation of damages

insurance coverage

Question 121

penalty for failure to disclose

Answer 121

party cant use undisclosed material unless harmless

Question 122

expert witnesses (4)

Answer 122

1) consulting experts need not be disclosed absent exceptional circumstances
2) testifying experts must be disclosed
3)written report by expert must be disclosed
4) draft reports and communication are protected work product

Question 123

pre-trial disclosures

Answer 123

-30 days before trial
-identities of witnesses
-documents
-no surprises

Question 124

assuming that no court order
or stipulation provides otherwise, a party cannot send discovery
requests to another party until after the Rule 26(f) conference. Minor
exception:

Answer 124

requests to produce can be served earlier (once 21 days
has passed since service of process).

Such a request is treated as
though it was served at the Rule 26(f) conference.

Generally, the cost
of responding to discovery is borne by the responding party.

Question 125

depo

Answer 125

live testimony of parties or non parties, under oath, given in response to questions by counsel

Question 126

subpoenas or notice of depo

Answer 126

non parties must be served w subpoena

notice of depo sufficient for parties

Question 127

subpoena duces tecum

Answer 127

subp. req deponent to bring material to deposition

Question 128

depo of org

Answer 128

When the party is suing an organization, she may “notice” a deposition of an organization, describing the facts that she wants to
discover in the deposition.

The organization then must designate a
person(s) to testify on that matter.

Question 129

limits on depo; unless court orders otherwise: (3)

Answer 129

1) no more than 10 depo’s
2) cannot depose same person twice
3)cannot exceed one 7 hour day

Question 130

interrogatories

Answer 130

written qs to be answered in writing under oath

1) only to parties
2) limited to 25 (unless ct order or stipulation)
3) must answer in 30 days

Question 131

request to produce

Answer 131

A request to produce asks a party to make available for review and
copying documents or things, including electronically stored information (“ESI”), or to permit entry on designated property to inspect,
measure, etc.

Question 132

medical exams

Answer 132

1) ct order req’d
2) parties only
3) health must be in controversy
4) good cause

Question 133

request for admission; written request asking opponent to admit facts

Answer 133

1) must respond w/in 30 days
2) response: deny, deny knowledge, object, or admit
3) reasonable inquiry must be made before answering

Question 134

scope of discovery

Answer 134

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

Question 135

protective orders (ESI)

Answer 135

1) d can move for protective order or object to discovery of ESI
2) undue costs are considerations for ESI
3) ct may allocate costs if P shows good cause to obtain despite costs

Question 136

work product

Answer 136

material prepared in anticipation of litigation

Question 137

discovery of work product

Answer 137

1) must show substantial need and undue hardship
2) opinion work product cannot be discovered

Question 138

withholding discovery

Answer 138

1) must claim protection expressly
2) must prepare privilege log

Question 139

protective order

Answer 139

1) must try to work out w/o ct involvement
2) ct can deny and order discovery, limit discovery, or permit discovery w/in terms

Question 140

partial failure to respond

Answer 140

1) requesting party moves for order compelling discovery
2) opposing party fails to respond to court order
3)merits sanctions including contempt
4) but no contempt for refusal of medical exam

Question 141

total failure to respond =

Answer 141

merits sanctions

Question 142

merits sanctions

Answer 142

1) establishment order
2) strike claims or pleadings
3) disallow evidence
4)dismissal or default

Question 143

failure to preserve ESI

Answer 143

ct orders measures to cure harm

Question 144

preliminary injunction

Answer 144

preserves status quo until trial

Question 145

TRO

Answer 145

preserves status quo until preliminary injunction

Question 146

TRO ex parte

Answer 146

ct does something w/o notice to other party; P swears under oath tht they will suffer immediate and irreparable harm ; The applicant’s lawyer certifies in writing her efforts to give oral or
written notice to the defendant or the defendant’s lawyer (or why
such notice should not be required in this case)

Question 147

contents of TRO

Answer 147

A TRO must state its terms specifically, describe in detail what the
defendant must do (or refrain from doing), state why it was issued,
and state why the threatened injury to the plaintiff was irreparable.

Question 148

TRO can’t exceed

Answer 148

28 days (14 days plus 14 day extension)

treated like a preliminary injunction after 28 days

Question 149

preliminary injunction factors

Answer 149

1) irreparable harm
2) likely to win on the merits
3) balance of hardships favors you
4) public interest

Question 150

additional reqs for TRO

Answer 150

the
applicant must post a bond.

describe in detail what the defendant must do or refrain from doing, and state why it was issued.

In granting or denying the preliminary injunction, the court must
make specific findings of fact and separate conclusions of law.

Question 151

voluntary dismissal w/o court permission

Answer 151

p may withdraw case w/o ct order if D has not filed answers or motion for summary judgment

Question 152

voluntary dismissal w ct permission

Answer 152

1) p makes motion for voluntary dismissal
2) ct discretion to grant or deny
3) first voluntary is w/o prejudice
4) second voluntary dismissal extinguishes claim

Question 153

default; p may seek d’s default if D doesnt respond to complaint within:

Answer 153

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

Question 154

default judgment

clerk can enter default judgment if: (4)

Answer 154

1) d made no response (has not appeared)
2) claim for sum certain
3) P gives affidavit of amount owed
4) D is not a minor or incompetent

-hearing and judge’s discretion if clerk cant enter -recovery limited by amount in complaint

Question 155

relief from default

Answer 155

good cause

viable defense

Question 156

motion to dismiss for failure to state claim - rule 12b6

Answer 156

ct looks only to allegation of facts in complaint

do these facts-if true- state a plausible claim

Question 157

FRCP 56 summary judg

Answer 157

weeds out cases where trial is not needed bc theres no dispute of material fact

Question 158

pleadings to support summary judgment

Answer 158

not considered evidence unless verified

admissions

Question 159

rule 26 conference

Answer 159

at least 21 days before the
court’s scheduling order, the parties “meet and confer” to discuss
production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information.

They must
present to the court a detailed discovery plan no later than 14 days
after the Rule 26(f) conference

Question 160

contents of discovery plan

Answer 160

The plan must include views and proposals on timing, issues about
discovery of ESI, including how it will be produced and any problems
retrieving it (for example, deleted files), etc.

Question 161

scheduling order is a

Answer 161

roadmap of case to trial

Question 162

motion in limine

Answer 162

pretrial motion outside the presence of the jury to decide whether the jury should hear certain evidence

Question 163

judge or jury?

Answer 163

actions at law-> jury
actions in equity-> judge
mixed suits->

facts underlying damages tried first b4 jury

facts relating only to equity claim are tried to judge

Question 164

jury must be demanded w/in ___ days of last pleading showing jury triable issue

Answer 164

14

Question 165

jury selection

Answer 165

called voir dire

unlimited challenges for cause

generally 3 peremptory challenges
-must be used in race and gender neutral way

Question 166

of jurors in fed ct

Answer 166

A minimum of
six and a maximum of 12, unless the parties agree otherwise.

Generally, all jurors participate in the verdict unless a juror is
excused for good cause, and the verdict must be unanimous unless
the parties agree otherwise.

Question 167

judge may hold ______ to discuss jury instructions

Answer 167

off the record

Question 168

objection to jury instructions

Answer 168

1) judge must tell parties what instructions it will give and what instructions were refused
2) party must object on the record
3) and objection must be before jury charged

Question 169

three types of verdicts

Answer 169

1) general= who wins and what relief

2) special verdict= jury answers questions, no bottom line (judge will give bottom line)

3) combo general and special= general w written questions

Question 170

Entry of judgment

Answer 170

If the jury returns a general verdict, the clerk of the court will enter
the judgment.

If the jury returns a special verdict (or general verdict
with written questions), and the answers are consistent with each
other and with the verdict, the judge approves the judgment and the
clerk enters it.

Question 171

Inconsistency Between General Verdict and Written
Questions; In a case involving general verdict with written questions, if the
answers are consistent with each other but inconsistent with the
verdict, the court may

Answer 171

enter an appropriate judgment consistent with
the answers. (Or it can tell the jury to reconsider or order a new trial.)

Question 172

If the answers are inconsistent with each other and one or more is
inconsistent with the general verdict

Answer 172

no judgment may be entered.
(Again, the court may order the jury to reconsider or order a new
trial.)

Question 173

Motion for Judgment as a Matter of Law
(“JMOL”); If the judge grants JMOL,

Answer 173

the case will not go
to the jury—the judge grants the motion and enters judgment. The
motion is based upon evidence presented at trial.

Question 174

standard for JMOL

Answer 174

reasonable people 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

Question 175

renewed motion for JMOL

Answer 175

RJMOL comes up after trial, after jury returns verdict

same standard as JMOL

Question 176

timing for RJMOL

Answer 176

28 days after entry of judgment

Question 177

req for motion

Answer 177

a motion JMOL at trial must have been made

Question 178

new trial motion

Answer 178

same timing as RJMOL;

its a do over bc something at trial reqs it

Question 179

A party must move for a new trial within 28 days of the
judgment. Some reasons a new trial may be granted are:

Answer 179

1) The judge gave an erroneous jury instruction;
2) New evidence was discovered that could not have been discovered before with due diligence;
3) Misconduct was committed by a juror, party, or lawyer, etc.;
4) The judgment is against weight of the evidence (serious error of
judgment); and
5) Damages are inadequate or excessive

Question 180

Remittitur is playing hardball with the plaintiff.

Answer 180

1) damage figure shocks the conscience
2) P remits a portion of damages or undergoes new trial
3) both state and fed ct

Question 181

Additur is playing hardball with the defendant

Answer 181

1) damage figure must shock the conscience

2) add to damages or D undergoes a new trial

3) not in fed ct

Question 182

A defendant can submit formal offers to settle the case up to

Answer 182

14 days
before trial.

The benefit is that the rule contains cost-shifting provisions that apply when a plaintiff rejects an offer to settle and doesn’t
do as well at trial as the offer.

Question 183

losing party has right to appeal if

Answer 183

the cts order is a final judgment (wrapping whole case on merits)

Question 184

notice of appeal

Answer 184

d must file notice of appeal in the district ct no later than 30 days after entry of judgment

Question 185

appeal of injunctions and TROS

Answer 185

orders related to injunctions may be appealed

TRO is not injunction

TRO extended beyond 28days becomes preliminary injunction (appealable)

Question 186

interlocutory appeals act

Answer 186

allows for appeal of nonfinal order if trial judge certifies controlling issue of law w substantial ground for differing opinions

Question 187

collateral order doctrine; The appellate court has discretion to hear an appeal on an issue if
that issue:

Answer 187

Is distinct from the merits of the case;

Involves an important legal question; and

Is essentially unreviewable if parties await a final judgment.

Question 188

mutliple claims or parties; When more than one claim is presented in a case, or when there are
multiple parties, the district court may

Answer 188

expressly direct entry of a final
judgment as to one or more of them if it makes an express finding
that there is no just reason for delay.

Question 189

questions of law reviewed de novo

Answer 189

no deference given to trial judge on questions of law

Question 190

clearly erroneous standard used for

Answer 190

judges determinations of fact

Question 191

jurys finding of fact will be affirmed unless

Answer 191

reasonable ppl could not have made the finding

Question 192

judges rulings on discretionary matters reviewed under

Answer 192

an abuse of discretion standard

Question 193

when an appellate court reviews a trial courts ruling on a post trial motion for JMOL (including a renewed one) it employs a ____ standard

Answer 193

de novo

Question 194

when an appellate court reviews a trial courts denial of a motion for new trial it employs a ___standard

Answer 194

more deferential standard, reversing the trial courts denial only when there is a clear showing of an abuse of discretion

Question 195

If Case 1 and Case 2 are in different judicial systems (for example,
state and federal courts or courts in different U.S. states), the court in
Case 2 applies

Answer 195

the preclusion law of the judicial system that decided
Case 1.

Question 196

claim preclusion req 1

Answer 196

same plaintiff v same defendant

Question 197

claim preclusion req 2

Answer 197

final judgment on merits

Question 198

Unless the court said the judgment was “without prejudice” when
entered, any judgment is “on the merits” unless it was based on

Answer 198

a lack of jurisdiction (both personal and subject matter), improper
venue, or a failure to join an indispensable party. This is true even if
there was no adjudication in Case 1.

Question 199

claim preclusion req 3

Answer 199

same claim

maj view: same transaction or occurrence

minority primary rights view: sep claims for personal injury and property damage

Question 200

Issue preclusion is narrower than claim preclusion. Here, an issue was
litigated in Case 1. The same issue is then presented in Case 2. But if
issue preclusion applies, the issue cannot be relitigated in Case 2. It
is deemed established in Case 2, thereby streamlining the scope of
litigation in Case 2. There are five requirements for issue preclusion:

Answer 200

1)Case 1 Ended in Valid, Final Judgment on the
Merits

2)Same Issue Actually Litigated and Determined in
Case 1

3) Issue Was Essential to Judgment in Case 1 (finding on that issue is reason for the judgment)

4)issue preclusion can be used only against previous party (or in privity)

5) nonmutual issue preclusion: When someone who
was not a party to Case 1 tries to use issue preclusion in Case 2, it is
called “nonmutual” issue preclusion.

Question 201

non mutual defensive issue preclusion

Answer 201

The person using preclusion was not a party to Case 1 and is the
defendant in Case 2.

(ok as long as the party had a full chance to litigate in case 1)

Question 202

nonmutual offensive issue preclusion

Answer 202

The person using preclusion was not a party to Case 1 and is the
plaintiff in Case 2. (most states say no, unless fair)

Question 203

issue preclusion fairness factors

Answer 203

1) The party to be bound had a full and fair opportunity to litigate in
Case 1;
2) The party to be bound had a strong incentive to litigate Case 1.
(For example, if Case 1 was for a small sum, the party has less
incentive to litigate the action fully unless she knew further, larger
cases might be forthcoming.);

3) The party asserting issue preclusion could have easily joined to
Case 1. (For example, if you could have easily joined Joey’s Case
1, a court might not let you use the Case 1 judgment against Joey.);
and
4) There have been no inconsistent findings on the issue. So if there
had been multiple cases about Joey’s wreck, and sometimes Joey
was found negligent and sometimes not, it would be unfair to let
you get issue preclusion on a negligence finding.