Civ Pro

Question 1

Personal jurisdiction (“PJ”) is about the court’s power over …

Answer 1

The parties

Question 2

The plaintiff has _ to PL

Answer 2

Consented

Question 3

Two-steps of PJ analysis:

Answer 3

The exercise of PJ must first fall within a state statute, and the exercise of PJ must satisfy the Constitution (due process).

Question 4

A “long arm” statute…

Answer 4

grants PJ over nonresidents who perform or cause certain things within the state.

Question 5

For the constitutional analysis of PJ, we ask

Answer 5

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

Question 6

Factors of constitutional PJ inquiry:

Answer 6

1. Minimum Contacts (purposeful availment and foreseeability that the def. could be sued in the forum)
2. Relatedness (Does Plaintiff’s claim arise from or relate to Defendant’s contact with the forum?) (specific v. general)
3. Fairness = for specific PJ only

Question 7

Can the defendant “purposefully avail” under PJ without setting foot in the forum?

Answer 7

Yes, by causing an effect in the forum.

Question 8

Types of PJ relatedness

Answer 8

If Plaintiff’s claim arises from
or relates to Defendant’s contact with the forum? = specific PJ
If not = neeed general PJ

Question 9

How Do We Test for Relatedness (for PJ)?

Answer 9

If actions “caused” harm = met

If Defendant’s contact did not clearly cause the injury to Plaintiff? = If Defendant has substantial contact with the forum state, relatedness is satisfied if the claim merely relates to Defendant’s contacts with the forum.

Question 10

If general PJ exists, Defendant can be sued in the forum on a claim that arose…

Answer 10

anywhere in the world

Question 11

To have general PJ, the defendant either must be …

Answer 11

at home in the forum or must have registered to do business in the state and have appointed an agent for service of process there, assuming that state law authorizes general personal jurisdiction on this basis.
OR if Defendant is served with process in the state (tag jurisdiction)

Question 12

Where is a human always “at home”? (for PJ)

Answer 12

A human is “at home” where she is domiciled.

Question 13

Where is a corporation subject to general PJ?

Answer 13

In any state that allows PJ to be exercised on registration with the state.

Failing that, the company must be “at home” in the forum. Where is a corporation always “at home”? (1) The state in which it is incorporated; and (2) the state in which it has its principal place of business (“PPB”).

Question 14

The fairness factors are addressed in __ only.

Answer 14

specific PJ cases

Question 15

Fairness factors for PJ:

Answer 15

1. Burden on the defendant and witnesses:
   - Due process does not guarantee that suit will be in the most convenient forum for the defendant.
   - The forum is constitutionally OK unless the defendant can show that it puts her at a severe disadvantage in the litigation.
   - Relative wealth of the parties is not determinative.
2. State’s interest
   - The forum state may want to provide a courtroom for its citizens who are allegedly being harmed by out-of-state defendants.
3. Plaintiff’s interest
   - The plaintiff is maybe injured in the forum state and/or wants to sue at home

Question 16

As a constitutional matter, notice must be “…

Answer 16

“reasonably calculated, under all the circumstances, to apprise interested parties of the action.”

Question 17

In a regular lawsuit, notice consists of two documents:

Answer 17

(1) a summons, which is formal court notice of suit and the timing for response; and (2) a copy of the complaint.
-> Together, these two documents are sometimes called “process.”

Question 18

Any person who is __ may serve process.

Answer 18

at least 18 years old and not a party to the action (generally the process server need not be appointed by the court but some state courts require appointment by the court.)

Question 19

If the defendant is to be served within the United States, service must take place within

Answer 19

90 days of the filing of the complaint. (This period
may be extended for good cause).

Question 20

Options for how process is served on an Individual Within the United States:

Answer 20

1. Personal Service
2. Substituted Service
3. Service on Agent
4. State Law Methods
   - Note: There is no preference between these methods

Question 21

For indiviual personal service, process is given to the defendant personally __

Answer 21

anywhere.

Question 22

Substituted service on an individual can be done only

Answer 22

(1) at the defendant’s usual place of abode; (2) with someone of suitable age and discretion; (3) who resides there (doesn’t need to be related).

Question 23

For substituted service must the defendant reside there every day of the year for it to qualify
as her “usual place of abode”?

Answer 23

No. It’s a common sense determination. (i.e., cottage counts in the summer)

Question 24

Process can be delivered to the individual defendant’s agent if

Answer 24

receiving service is in scope of agency

Question 25

For both individuals and businesses methods for serving process that are permitted by the
law of the state where __ are permitted.

Answer 25

(1) where the federal court sits or (2) where service is
made
- Note: Some states permit service by mail

Question 26

A business or organization may be served by:

Answer 26

• Delivering to an officer (for example, president, treasurer) or a managing or general agent a copy of the summons and of the complaint, or
• Using a method permitted by the state: (1) where the federal court sits or (2) where service is to be made

Question 27

Service on a minor or incompetent person may be made only ___

Answer 27

by a method permitted by the law of the state in which service is to be made.

Question 28

Service on Parties in a Foreign Country

Answer 28

(1) A method allowed by international agreement (for example, the Hague Convention) may be used.
(2) If there’s no such agreement on 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). (NOT MAIL BY PARTY!)

Question 29

A defendant can waive service of process. To request this waiver, the plaintiff mails the defendant a notice and request to waive service. The plaintiff must ___

Answer 29

include a copy of the complaint and two copies of a
waiver form, with a prepaid means of returning the form

Question 30

If the defendant executes and mails the service waiver form to the plaintiff within ___ she waives service of process.

Answer 30

30 days (60 days if the defendant is outside the U.S.)

Question 31

Waiver of service can be used for individuals and entities___

Answer 31

individuals and entities

Question 32

A defendant who waives service of process __ waive any defenses like lack of PJ.

Answer 32

does not

Question 33

When is the Waiver of service effective

Answer 33

If the defendant signs and mails the waiver form back to the plaintiff, the plaintiff files the waiver in court; the waiver is effective then.

Question 34

Penalty for Failing to Waive Service

Answer 34

If the defendant did not have good cause for failing to return the waiver form, the defendant must pay the costs of service.

Question 35

PROVING SERVICE OF PROCESS

Answer 35

Unless service is waived, the process server files a report with the court detailing how service was made.
- If the server was a civilian, the report is by affidavit (sworn statement, under oath).

Question 36

The failure of the process server to file their report ___

Answer 36

does not affect the validity of service

Question 37

GEOGRAPHIC REACH OF SERVICE OF PROCESS

Answer 37

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

Question 38

Immunity from Service

Answer 38

If the defendant goes to State X to appear as a party, witness, or attorney in a different civil case in State X, the defendant cannot be served with process for a civil case in federal court in State X.

Question 39

SERVICE OF documents other than the complaint/summons

Answer 39

Other documents, such as an answer, other pleadings, motions, and discovery, are “served,” but we don’t need a summons or to do it so formally.
- We serve these documents by delivering or mailing
the document to the party’s attorney or to a pro se party, that is, someone who is proceeding without a lawyer.

Question 40

Can you serve documents other than the complaint/summons by email?

Answer 40

Yes, if the parties agree.

Question 41

Where service of documents other than the complaint/summons is done by mail ___

Answer 41

three days are added to the period to respond (30 days) because they are mailed.

Question 42

Subject matter jurisdiction (“SMJ”) is about the court’s power over ___

Answer 42

the case, and not over the parties.

Question 43

As a general rule, state courts can hear ___

Answer 43

any kind of case (general subject matter jurisdiction)

Question 44

Cases that State Courts Cannot Hear

Answer 44

There are a few federal cases that state courts cannot hear, such as patent infringement, bankruptcy, some federal securities, and antitrust claims (congress took jurisdiction away explciitly)
- But most cases arising under federal law can be heard by state courts.

Question 45

The two main types of cases that can be heard in federal court are ___

Answer 45

federal question (“FQ”) jurisdiction and diversity of citizenship jurisdiction, which includes the so-called “alienage” jurisdiction.

Question 46

A lack of SMJ (unlike a lack of PJ) ___

Answer 46

cannot be waived. If it does, the judgment is void.

Question 47

There are two requirements for diversity of citizenship(or alienage) cases:

Answer 47

(1) The case is either (a) between citizens of different U.S. states (diversity); or (b) between a citizen of a U.S. state and a citizen of a foreign country (alienage); and
(2) The amount in controversy exceeds $75,000.

Question 48

Complete Diversity Rule

Answer 48

Diversity of citizenship jurisdiction does not exist if any plaintiff is a citizen of the same state as any defendant; this is the complete diversity rule. (look at the sides of the v)

Question 49

Whether there is diversity is determined when ___

Answer 49

the case is filed

Question 50

Two foreign nationals suing each other ___ sue each other in state court.

Answer 50

Can

Question 51

Is a green card holder a resident of a state for diversity purposes?

Answer 51

NO = But can invoke alienage (but even then alienage jurisdiction is withdrawn if permanent resident is domiciled in the same state as an adverse party)

Question 52

Is a US citizen living abroad a citizen of a state for diversity pruposes?

Answer 52

No, and also not alienage

Question 53

The citizenship of a person who is a U.S. citizen is the ___ U.S. state in which she is domiciled

Answer 53

one, a person can have only one domicile. There is no such thing as a person without a domicile; everyone has a domicile.

Question 54

That domicile is retained until ___

Answer 54

it is changed.

Question 55

How do you establish a new domicile?

Answer 55

It takes two things: (1) physical presence in
the new domicile and (2) the intent to make that place your home for the indefinite future.

Question 56

For intent to change domicile, courts look to all relevant factors including

Answer 56

taking a job, buying a house, joining civic organizations, registering to vote, qualifying for in-state tuition, etc.

Question 57

Is DC a state for diversity purspoes?

Answer 57

Yes!

Question 58

A corporation is a citizen of __

Answer 58

any state or country in which it is incorporated and of the one state or country in which it has its principal place of business (“PPB”)

Question 59

Where is the corporation’s PPB?

Answer 59

It is the state from which the corporation’s managers
direct, coordinate, and control business activities (nerve center test)

Question 60

Citizenship of an Unincorporated Association

Answer 60

An unincorporated association takes on the citizenships of all of its members.
- If it’s a limited partnership, you include the citizenships of general and limited partners.

Question 61

Decedents, minors, and incompetent persons must sue or be sued through a representative. The representative’s citizenship is __

Answer 61

irrelevant. You use the citizenship of the decedent, minor, or incompetent.

Question 62

For class actions, the citizenship of ___ of the class is used for diversity purposes

Answer 62

the named representative(s)

Question 63

The Amount in Controversy Requirement is

Answer 63

must EXCEED $75,000 (equal to not enough!)

Question 64

What is included in the Amount in Controversy?

Answer 64

Only the claim itself is considered. Litigation costs or interest on the claim are not included (but if the claim is for the interest itself that you are suing to collect that is ok = but not interest from the delay of payment due to the litigation)

Question 65

The claim itself must exceed $75,000 for diversity. Whatever the plaintiff claims in good faith is OK unless ___

Answer 65

it is clear to a legal certainty that she
cannot recover more than $75,000. Ex post amount doesn’t control.

Question 66

For purposes of meeting the jurisdictional
amount, any single plaintiff may aggregate ___

Answer 66

all of her claims against a single defendant (the claims need not be related).

Question 67

For diversity can’t aggregate the claims of ____

Answer 67

multiple PL’s against one def

Question 68

Under diversity for joint claims you can use the total value of the claim. With joint claims ____

Answer 68

the number of parties is irrelevant (know how much you will recover just not sure who will pay)

Question 69

How do we determine if the amount in controversy has been satisfied for equitable relief?

Answer 69

There are two tests; if either is met, most courts find that the amount in controversy is satisfied.
- One test looks at the plaintiff’s viewpoint. If granted, does the relief requested have a value of more than $75,000 to the plaintiff?
- The other test looks at the defendant’s viewpoint. If granted, will the relief requested by the plaintiff cost the defendant more than $75,000?

Question 70

Even if the requirements for diversity or alienage jurisdiction are met, federal courts decline to hear actions for ___

Answer 70

divorce, alimony, child custody, and actions to probate an estate (not all family matters, just these specifically!)

Question 71

If a party attempts to create diversity by a sham transaction, such as assigning a claim for collection purposes merely to create diversity SMJ, the courts ____

Answer 71

ignore the transaction and declare that diversity does
not exist.

Question 72

A plaintiff can create diversity by changing her state citizenship after the cause of action accrued but before suit is commenced. Is this ok?

Answer 72

If it is a genuine change of citizenship, diversity is OK.

Question 73

For there to be federal question (“FQ”) jurisdiction, the plaintiff’s claim must ___

Answer 73

“arise under” federal law (for example, the claim must arise under the federal constitution or federal legislation).

Question 74

For FQ cases what factors don’t matter:

Answer 74

• The citizenship of the parties is not relevant;
• The amount in controversy is not relevant

Question 75

The FQ “well pleaded complaint” rule provides that

Answer 75

it is not enough that some federal issue is raised by the complaint. The plaintiff’s claim itself must “arise under” federal law.
-> Ask if the plaintiff is enforcing a federal right.

Question 76

Assume that a plaintiff sues a defendant in state court, but that the defendant would prefer to litigate in federal court. The defendant might be able to ___ the case to federal court

Answer 76

“remove”

Question 77

If removal was improper, the federal court can ___ the case to state court.

Answer 77

“remand”

Question 78

Generally, an action originally filed in a state court may be removed by a defendant to federal court when ___

Answer 78

the case could have been filed in a federal court (that is, federal question or diversity jurisdiction
exists).

Question 79

Even when the state court has no jurisdiction because the action is exclusively federal, ___

Answer 79

the federal court may hear and decide the case under its removal jurisdiction.

Question 80

How a Case Is Removed

Answer 80

• The defendant files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (diversity or FQ).
• Permission of the state or federal court is not required.
• The defendant attaches all documents that were served on her in the state action.
• The defendant then “promptly” serves a copy of the “notice of removal” on adverse parties and files a copy of the “notice of removal” in state court.

Question 81

Timing of Removal

Answer 81

The defendant must remove no later than 30 days after service (not filing) of the first paper that shows the case is removable.
-> Usually, that means no later than 30 days of service of process.

Question 82

Who Must Join in the Removal?

Answer 82

• All defendants who have been served with process must join in removal.
• They need not join in the same document; they can file separate notices of removal.

Question 83

If defendants are served at different
times, and a later served defendant initiates timely removal, the earlier served defendant ___

Answer 83

may join in the removal even though her 30-day period for initiating removal may have expired.

Question 84

Plaintiffs can ___ remove.

Answer 84

never, never ever
-> This is true even if the defendant files a counterclaim against the plaintiff that, by itself, could be heard in federal court

Question 85

Limitations to removing a case based solely
on diversity of citizenship:

Answer 85

(1) The case should not be removed if any defendant is a citizen of the forum state (the “in-state defendant rule”);
(2) The case should not be removed more than one year after the case was filed in state court

Question 86

When could the one-year limitation on removing a diversity case apply?

Answer 86

A diversity case with an in-state defendant (or with a non-diverse defendant) can become removable later. How? -> The case becomes removable when the claim against the in-state defendant (or the non-diverse defendant) is voluntarily dismissed from the case.

Question 87

Exception to the one year diversity removal rule if ___

Answer 87

pl. intentionally joined parties to prevent removal

Question 88

Removal Venue

Answer 88

The defendant removes to the federal district court “embracing” the state court where the case was filed.
-> It does not matter if this venue would have been proper under the venue statutes.

Question 89

If the plaintiff thinks the case should not have been removed, she moves to remand to state court. If the motion to remand is based on a reason other than lack of SMJ (for example, the one-year limitation
on the removal of a diversity case), she must move to remand no later than ___

Answer 89

30 days after the filing of the notice of removal.
-> If the plaintiff fails to do so, she waives the right to have the case remanded to state court and the case will stay in federal court.

Question 90

If removal was improper because the federal
court lacked SMJ, there is ___ on ordering remand.

Answer 90

no time limit

Question 91

Diversity and FQ SMJ get cases into federal court. Supplemental jurisdiction ___

Answer 91

does not. Instead, it gets claims into a federal case, even though the claims cannot use
diversity of citizenship or FQ SMJ.

Question 92

Starting point for supplemental SMJ

Answer 92

Instead, it gets claims into a federal case, even though the claims cannot use diversity of citizenship or FQ SMJ

Question 93

The federal court must have SMJ over ___

Answer 93

every single claim in a case.

Question 94

Steps to analyzing SMJ of additional claims:

Answer 94

Step 1: Check for Diversity or FQ Jurisdiction over
the Additional Claim
Step 2: Check for Supplemental Jurisdiction If No
Diversity or FQ

Question 95

Steps to Supplemental SMJ analysis:

Answer 95

1. The claim that we want to get into federal court must share a “common nucleus of operative fact” with the claim that satisfied federal SMJ
   - Same T/O (yolk) satisfies but the test is broader (egg)

Question 96

Limitations on supplemental SMJ applies only in cases that got into federal court through ___

Answer 96

diversity jurisdiction.

Question 97

Limitation on supplemental SMJ

Answer 97

In diversity cases, claims by plaintiffs generally cannot invoke supplemental jurisdiction.

Question 98

Exception to the Limitation on supplemental SMJ by plaintiff in diversity case

Answer 98

When there are multiple plaintiffs, and the claim
by one of them does not meet the amount in controversy requirement.
-> Any other time a plaintiff has an additional claim in a diversity case, it cannot invoke supplemental jurisdiction.

Question 99

Even if we meet the requirements for supplemental jurisdiction, the court ___

Answer 99

has discretion to decline it.
- It can do so if the state law claim is
complex or state law issues would predominate in the case.
- But the more likely one is this: It can decline supplemental jurisdiction if the claim on which federal SMJ is based is dismissed early in the case.

Question 100

Erie: What law to apply in diversity cases, analysis

Answer 100

Step 1. Ask: Is there some federal law (like the Constitution, federal statute, Federal Rule of Civil Procedure, or Federal Rule of Evidence) on point that directly conflicts with state law? (On-point FRCP governs so long as it is valid and arguably procedural.)
-> If so, apply the federal law, as long as it is valid.

Step 2. If there is no federal law on point, the federal judge must apply state law if the issue to be decided is “substantive.”
- List of five that are always substantive

Step 3. If there is no federal law on point and the issue is not one of the five just listed above, the federal judge must determine whether the issue is “substantive.”

Question 101

Five issues that are substantive and the state law should be applied under Erie:

Answer 101

1. Conflict (or choice) of law rules;
2. Elements of a claim or defense;
3. Statutes of limitation;
4. Rules for tolling statutes of limitations; and
5. The standard for granting a new trial because the jury’s damages award was excessive or inadequate.

Question 102

Do state SOL’s always apply in federal court becuase they are substantive?

Answer 102

No! True, a federal judge applies forum state law (and not federal law) in a diversity case. But that doesn’t necessarily mean that the forum’s statute of limitation automatically applies.
-> This is because the federal judge must
also apply the forum state’s conflict of law rules to determine which state statute of limitation to apply.
- Some states will call the statute of limitation issue “procedural,” allowing the forum state to apply its own statute rather than that of another state.

Question 103

If there is no federal law on point and the issue is not
one of the five just listed above, the federal judge must determine whether the issue is “substantive.” Factors:

Answer 103

• Outcome determinative
• Balance of interests
• Avoid forum shopping

Question 104

Erie means there is no ____ federal common law.

Answer 104

general
- So the general common law of torts, contracts, and property is state law, and federal courts must apply that state substantive law in a diversity case.

Question 105

Even though Erie said there is no general CL, there are areas in which federal courts are free to make up common law on their own.

Answer 105

International relations, admiralty, disputes between states, the right to sue a federal officer for violating one’s federal rights. (no role for state law in these contexts)

Question 106

Subject matter jurisdiction told us when we can take a case to federal court. Venue tells us exactly where

Answer 106

to bring it, that is, in which federal court to bring it.

Question 107

The plaintiff may lay venue in any district where:

Answer 107

(1) All defendants reside (residential venue); (with one nuance = where all def’s live in the same state = can do any district in that state) or
(2) A substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (transactional venue).
- Note: These provisions above do not apply if the case was removed from state to federal court. (just goes to federal venue where the state court was)

Question 108

Where Claim Can Arise for Transactional Venue

Answer 108

A substantial part of the claim can arise in more than one district.

Question 110

For venue purposes, it ___ where the plaintiff resides.

Answer 110

does not matter

Question 111

If the defendant resides outside of the United States, venue is proper in ___, but if another defendant does reside in the United States, venue must ___

Answer 111

any federal district court; be proper as to her.

Question 112

WHERE humans “RESIDEs” FOR VENUE PURPOSES

Answer 112

A human “resides” in the federal district where she is domiciled.

Question 113

WHERE business’s “RESIDEs” FOR VENUE PURPOSES

Answer 113

A business, such as a corporation or unincorporated association, resides in all districts where it is subject to PJ for the case.

Question 114

Transfer goes from one trial court in a judicial system to another trial court in the ___

Answer 114

same judicial system.
- So a federal district court may transfer the case to another federal district court, but it cannot transfer a case to a state court.

Question 115

Courts can transfer if

Answer 115

transferee must be a proper venue and have PJ over the defendant—and generally those must be true without waiver by the defendant.

Question 116

Exception to no consent rule for improper venue transfer

Answer 116

the court can transfer to any district (even an improper venue) if ALL parties consent (unlikely) and the court finds cause for the transfer.

Question 117

If the original district is a proper venue, that court ____

Answer 117

can order transfer based on convenience of parties and witnesses and in the interests of justice.

Question 118

For transfer from proper venue the burden is on ___

Answer 118

the person seeking transfer (usually the defendant).

Question 119

For transfer from proper venue the court will consider ___

Answer 119

both public and private factors showing that another court is the center of gravity for the case.
- Public: The court will consider things like what law applies, what community should be burdened with jury service, the desire to keep a local controversy in a local court.
- Private: The court considers convenience.

Question 120

Effect on choice of law when a diversity case is filed in a proper venue but the court orders
transfer

Answer 120

the transferee court must apply the choice
of law rules of the transferor court (unless transfer is to give effect to a valid forum selection clause)

Question 121

Federal law enforces forum selection clauses if ___

Answer 121

they’re not unreasonable. Some
states do not. But in federal court, federal law governs transfer.

Question 122

When there is a valid forum selection clause, only ___ are considered for transfer

Answer 122

public interest factors (not private = dealt with in the contract)

Question 123

When transfer is to enforce a forum selection clause, the transferee court will apply ___

Answer 123

its own choice of law rules (the transfer does not carry the transferor court’s choice of law rules with it)

Question 124

If the original district is an improper venue, the court ___

Answer 124

may transfer in the interest of justice or dismiss.

Question 125

When the federal court transfers a diversity case because the original venue is improper, the transferee applies ___

Answer 125

its own choice of law rules, that is, the choice of law rules of the state in which it sits, and not the choice of law rules of the transferor court.

Question 126

Like transfer ___ applies when there is another court that is the center of gravity for the case. But here, the court cannot transfer the case to that court because it is in a different judicial system.

Answer 126

forum non conveniens (“FNC”)

Question 127

The court invoking forum non conveniens ___.

Answer 127

will stay (hold it in abeyance) or dismiss the case
- Whether the court dismisses or stays, the idea is that the plaintiff will then sue in the other court, and the court may impose conditions on the party
requesting transfer such as requiring her to waive service of process.

Question 128

The forum non conveniens decision is based ___

Answer 128

on the same public and private factors as transfer above, including the existence of a valid forum selection clause.

Question 129

For forum non conveniens the other court must be ___

Answer 129

available and “adequate.” = usually, the
forum will be adequate unless the plaintiff can get no remedy there

Question 130

In federal court, the ___ commences an action.

Answer 130

filing of the complaint

Question 131

The complaint must contain:

Answer 131

a. A statement of grounds of subject matter jurisdiction;
b. A short and plain statement of the claim showing that the plaintiff is entitled to relief; and
c. A demand for relief sought (for example, damages, injunction, declaratory judgment).
- The plaintiff need not allege grounds for PJ or venue.

Question 132

In stating the claim, the plaintiff must plead ____

Answer 132

sufficient facts to support a plausible claim.
- To determine plausibility, the judge uses her own experience and common sense.

Question 133

___ must be pleaded with more detail; that is, with ___

Answer 133

Fraud, mistake, and special damages; particularity or specificity.

Question 134

Rule 12 requires the defendant to respond in one of two ways:

Answer 134

(1) by motion or (2) by answer.

Question 135

To avoid default, the defendant must do
one of these two things no later than ___ after being served with process. If the defendant waived service, the defendant has ___ from when the plaintiff mailed the waiver form to respond.

Answer 135

21 days; 60 days

Question 136

Motions are not pleadings; they are ___

Answer 136

requests for a court order.

Question 137

Rule 12 motions addressing issues of form.

Answer 137

• A Rule 12(e) motion for more definite statement is used when the complaint is so vague or ambiguous the defendant simply cannot respond; must make this motion before answering;
• A Rule 12(f) motion to strike asks the court to remove redundant or immaterial things from a pleading (that is, a complaint, an answer,
  etc.); and Any party can move to strike (for example, a defendant moves to strike allegations of fraud or plaintiff moves to strike an affirmative
  defense).

Question 138

Some Rule 12(b) defenses that are waived if not put in the first Rule 12 response (motion or answer).

Answer 138

• A lack of personal jurisdiction;
• Improper venue;
• Improper process (a problem with the papers); and
• Improper service of process

Question 139

Some defenses under Rule 12(b) are not waived even if they are not included in the first response. They are:

Answer 139

• A failure to state a claim and a failure to join an indispensable party.
  –> These motions can be made as late as at trial.
• A lack of subject matter jurisdiction may be raised at any time.

Question 140

If the defendant makes a motion to dismiss under Rule 12 and it is denied. She must serve her answer no later than ____

Answer 140

14 days after notice of the denial.

Question 141

An answer is a pleading. The defendant does two things in the answer

Answer 141

(1) Respond to the Allegations in the Complaint: The def. amy:
- Admit some or all allegations;
- Deny some or all allegations; and
- State that she has insufficient knowledge to admit or deny some or all of the allegations
–> This has the effect of a denial, but a party cannot do this if the answer to the allegation is in her control.

(2) Raise Affirmative Defenses
- Affirmative defenses inject a new fact into the case that would allow the defendant to win.
- Rule 12(b) defenses can be pleaded as affirmative
defenses.

Question 142

The failure to deny an allegation in the answer is an ____

Answer 142

admission except regarding the amount of damages.

Question 143

If the defendant fails to assert an affirmative defense in the answer, the court ___

Answer 143

may treat it as waived subject to the timing rules in Rule 12.

Question 144

When the defendant asserts an affirmative defense, there is ___

Answer 144

no need for the plaintiff to respond, as the allegations in the defendant’s answer are deemed denied.

Question 145

AMENDED PLEADINGS—FOUR FACT PATTERNS

Answer 145

1. Right to amend
2. Amendment After “Right to Amend” Has Expired
3. Variance
4. Amendment After Statute of Limitations Has Run
   (“Relation Back”)

Question 146

Right to Amend By Plaintiff

Answer 146

The plaintiff has a right to amend her complaint once as of course no later than 21 days after the defendant serves her first Rule 12 response.

Question 147

Right to Amend By Defendnat

Answer 147

The defendant has a right to amend his answer once as of course no later than 21 days of serving it

Question 148

If the defendant’s first response was an answer, in which he forgot to raise “waivable defenses” and forgot to raise an affirmative defense, he has a right to amend his answer to ___

Answer 148

include the “waivable defenses” and the affirmative defense.

Question 149

After the period to amend as of right, the amending party must ___.

Answer 149

seek leave of court (or get the written consent of the opposing party)
- The court will grant leave to amend if “justice so requires.” (considering Length of delay, prejudice to the other party, and futility of amendment.)

Question 150

Variance comes up when the evidence at trial does not match what was pleaded. If ___, the party introducing the evidence may ___

Answer 150

the other party fails to object at trial; move to amend the complaint to conform to the evidence.

Question 151

Amendment After Statute of Limitations Has Run
(“Relation Back”) - To Join a Claim Not Originally Asserted

Answer 151

An amended pleading “relates back” if the pleading concerns the
same conduct, transaction, or occurrence as the original pleading

Question 152

Relation back means you treat the amended pleading as though it was filed when ___

Answer 152

the original was filed, so it can avoid a statute of limitations problem.

Question 153

Amendment After Statute of Limitations Has Run
(“Relation Back”) - To Change a Defendant. The amendment will relate back if:

Answer 153

(1) The amendment concerns the same conduct, transaction, or occurrence as the original;
(2) The defendant had such knowledge of the case such that she will
be able to avoid prejudice; and
(3) he defendant knew or should have known that, but for a mistake, she would have been named originally
- The knowledge referenced in the last two points must have come within the period for service of process (90 days after the filing of the complaint).

Question 154

Supplemental pleadings set forth things that happened ___

Answer 154

after the pleadings were filed.

Question 155

To file supplemental pleading you must make a motion; whether that motion is granted is ___

Answer 155

within the discretion of the trial court.

Question 156

Rule 11 applies to ___

Answer 156

all papers except discovery (which are treated by a different, similar rule)

Question 157

When the lawyer or pro se party signs
documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry (per Rule 11):

Answer 157

• The paper is not for an improper purpose;
• The legal contentions are warranted by law or a nonfrivolous argument for a law change; and
• The factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation.
• In addition, a party makes this certification every time she “presents” a position to the court (for example, when she later advocates a position taken in the document). It is a “continuing certification.”

Question 158

The purpose of Rule 11 sactions is to

Answer 158

deter a repeat of the conduct (not punish)

Question 159

If there is a violation of Rule 11, such as an assertion of a baseless claim, sanctions may be imposed against ___

Answer 159

the party, the lawyer, and/or the lawyer’s firm.

Question 160

The court can also raise Rule 11 violations ___.

Answer 160

“sua sponte” (on its own motion).

Question 161

The court raises Rule 11 sanction does this by issuing an order to show cause why sanctions should not be imposed. But before imposing a sanction regardless of who filed the motion, the court must ___

Answer 161

give the
sanctioned party an opportunity to be heard.

Question 162

Rule 11 sanctions are generally paid to ___

Answer 162

The court, not the other party

Question 163

Joinder rules define the scope of the case—____

Answer 163

how many parties and claims can be joined in one case?

Question 164

If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions. Rather, she serves the motion on other parties but does not file it with the court yet. The party in
violation has a safe harbor of ___

Answer 164

21 days in which to fix the problem and
avoid sanctions.
-> If she does not do so, then the motion can be filed
with the court.

Question 165

CLAIM JOINDER BY PLAINTIFF

Answer 165

The plaintiff (in fact, anyone asserting a claim) may join any additional claim she has against that adverse party—even if the additional claim is unrelated to the original claim.
-> But there still needs to be SMJ!

Question 166

The claims by multiple plaintiffs or against multiple defendants must:

Answer 166

(1) arise from the same transaction or occurrence (“T/O”); and
(2) raise at least one common question of law or fact.

Question 167

Three questions when joining an absentee:

Answer 167

• Is the absentee necessary (or “required”)?;
• f the absentee is necessary, can the absentee be joined?; and
• If the absentee can’t be joined, can the case proceed anyway?

Question 168

An absentee is necessary when:

Answer 168

• Without the absentee, the court cannot accord complete relief
  among the existing parties (worried about multiple suits); or
• The absentee’s interest may be harmed if she is not joined; or
• The absentee claims an interest that subjects a party (usually the defendant) to a risk of multiple obligations.

Question 169

Joint tortfeasors are ____

Answer 169

never necessary.

Question 170

If an absentee is labeled as necessary, a court will see if joinder of the absentee is “feasible.” Joinder is feasible if:

Answer 170

• There is PJ over the absentee; and
• There will be federal SMJ over the claim by or against the absentee.
  –> In determining whether the claim invokes diversity, the court “aligns” the absentee as a plaintiff or defendant based on the
  absentee’s interest.

Question 171

After the defendant serves a counterclaim
against the plaintiff, the plaintiff must respond under Rule 12 within ____

Answer 171

21 days of service of the counterclaim.

Question 171

If the (necessary) absentee is served _____ there is PJ over the absentee regardless of contacts with the forum.

Answer 171

within a district of the United States and not more than 100 miles from where the summons was issued,

Question 172

What happens if a necessary absentee cannot be joined (for example, there is no PJ over the absentee)? The court then must determine whether to proceed without the absentee or dismiss the entire case. Factors:

Answer 172

• Is there an alternative forum available? (maybe some state court);
• What is the actual likelihood of harm to the absentee?; and
• Can the court shape relief to avoid that harm to the absentee?

Question 173

If the court decides to dismiss rather than proceed without the absentee, the absentee is called ____

Answer 173

“indispensable.”

Question 174

There are two types of counterclaims: ____

Answer 174

compulsory and permissive.

Question 175

An order that maintains the status quo until trial is a ___. Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek a ___

Answer 175

preliminary injunction; TRO

Question 176

A compulsory counterclaim is one that ___

Answer 176

arises from the same T/O as the plaintiff’s claim.

Question 177

Unless the counterclaimant has already filed the
claim in another case, she must ____

Answer 177

file the compulsory counterclaim in the pending case or the claim is waived. (only if there was an opportunity to dismiss = not barred if dismissed on 12 motion for example)

Question 178

A permissive counterclaim is one that ____

Answer 178

does not arise from the same T/O as the plaintiff’s claim

Question 179

There must be ____ over any counterclaim.

Answer 179

subject matter jurisdiction

Question 180

An impleader claim (also called a third-party claim) is one where ____

Answer 180

a defending party (usually the defendant) is bringing in a new party.

Question 181

An impleader claim is used to ____

Answer 181

shift to the TPD the liability that the defendant will owe to the plaintiff.

Question 182

For impleader claims ___ shifts liability completely (so the TPD must cover the full claim). ___ shifts it pro-rata (so the TPD must cover a pro-rata portion of the claim).

Answer 182

Indemnity; Contribution

Question 183

An impleader claim is ____

Answer 183

permissive, meaning that the defendant need not bring it in the current case.

Question 184

The only compulsory claim is the ___

Answer 184

compulsory counterclaim.

Question 185

To implead a third party, the defendant must ____

Answer 185

(1) file a third-party complaint naming the TPD and (2) have that complaint formally served (that is, served like an original complaint) on the TPD.

Question 186

There is a right to implead within ____. After that, court permission is needed.

Answer 186

14 days of serving the answer

Question 187

After the TPD is joined, the plaintiff may assert claim(s) against the TPD, and the TPD may assert claim(s) against the plaintiff, that ____

Answer 187

arise out of the same T/O as the underlying case.

Question 188

For the putspoes of the limitation on use of supplemental jurisdiction in diversity cases: a TPD is ___

Answer 188

not a plaintiff.

Question 189

Like an absent party, there is PJ over an impleaded party if he is served ____

Answer 189

in a district in the United States and not more than 100 miles from the federal court that issued the summons regardless of his contacts with the forum. If more than 100 miles, there must be traditional contacts-based PJ.

Question 190

A nonparty absentee uses ____ to bring herself into the case.

Answer 190

intervention

Question 191

The intervenor chooses to come in either as a plaintiff to assert a claim or as a defendant to defend a claim. The court may ___

Answer 191

realign the intervening party if it thinks the absentee came in on the “wrong” side.

Question 192

Intervention of Right

Answer 192

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 193

Permissive Intervention

Answer 193

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 194

A claim by an intervenor plaintiff in a diversity case is a claim by a plaintiff, so ____

Answer 194

the limitation on supplemental jurisdiction may apply.

Question 195

____ applies if separate actions might result in double
liability against a stakeholder.

Answer 195

Interpleader

Question 196

An interpleader suit ____

Answer 196

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.

Question 197

Rule 22 interpleader requires ____

Answer 197

(1) complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue, or (2) a federal question claim. Normal service and venue rules apply.

Question 198

Statutory interpleader requires ___

Answer 198

only diversity between any two contending claimants and $500 be in issue. Service may be nationwide and venue is proper where any claimant resides.

Question 199

If the stakeholder makes no claim to the stake (that is, the stakeholder is disinterested), and the claimants are all from the same state, statutory interpleader would ___

Answer 199

not be available even if the stakeholder and claimants are from different states. But if the stakeholder is interested in the stake, statutory interpleader potentially would be available; in such a case, the stakeholder is considered to be a claimant.

Question 200

To qualify for a class action, all four of the following must be demonstrated.

Answer 200

(CANT) Commonality, adequate representation, numerosity, typicality

Question 201

Numerosity means that ____

Answer 201

there are too many class members for practicable joinder. There is no magic number.

Question 202

Commonality

Answer 202

There must be some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke.

Question 203

Typicality

Answer 203

The class rep’s claims are typical of the claims of the class.

Question 204

The class rep needs to ___

Answer 204

fairly and adequately represent the class.

Question 205

After satisfying these four requirements, the action still must fall into one of three types of class actions.

Answer 205

Type 1 (“Prejudice”)
Type 2 (“Injunctive or Declaratory Relief”)
Type 3 (“Common Question” or “Damages”)

Question 206

For Type 1 class actions, class treatment is necessary to ___

Answer 206

avoid harm (prejudice) either to class members or to the non-class party. These types of class actions are rare.

Question 207

A Type 2 class action seeks ____

Answer 207

an injunction or a declaratory judgment because the defendant treated the class members alike. Plaintiffs in a Type 2 class action generally cannot seek damages.

Question 208

For a Type 3 class action, ___

Answer 208

(1) common questions must predominate over individual questions; and (2) the class action is a superior method to handle the dispute.

Question 209

A case is not a class action until ___

Answer 209

the court grants the motion to certify it as a class action.

Question 210

When certifying a class action:

Answer 210

(1) Define the class and the class claims, issues, or defenses; and
(2) Appoint class counsel, who must fairly and adequately represent the interests of the class.

Question 211

When the court rules on a class certification motion, the losing party can seek review from the court of appeals. It’s ___

Answer 211

discretionary with the court of appeals.

Question 212

In a ___ class action, the court must notify class members that they are in a class.

Answer 212

Type 3

Question 213

Class action Type 3 notice means individual notice (usually by mail) to ___

Answer 213

all reasonably identifiable members.

Question 214

Type 3 class action notice paid for ___ tells the class members various things, including that they: __

Answer 214

by the rep
- Can opt out;
- Will be bound by the judgment if they don’t opt out; and
- Can enter a separate appearance through counsel.

Question 215

There is no right to opt out of a ____ class action.

Answer 215

Type 1 or Type 2

Question 216

The parties can settle or dismiss a certified class action only ___. And, in all three types, the court must ___.

Answer 216

with court approval; give notice to the class members to get their feedback on whether the case should be settled or dismissed

Question 217

If it’s a Type 3 class, the court also might refuse to approve the settlement unless ____

Answer 217

members are given a second chance to opt out.

Question 218

For diversity class action cases, only the citizenship of the ___ is considered, and her claim must exceed $75,000.

Answer 218

class rep

Question 219

Class Action Fairness Act (“CAFA”)grants SMJ separate from diversity of citizenship jurisdiction. It
lets a federal court hear a class action if:

Answer 219

• 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.

Question 220

Under CAFA where most class members and the primary defendants are citizens of the same state)

Answer 220

There are complicated provisions to ensure that local classes do not stay in federal court; these cases get dismissed (or, if they were removed from state court, remanded to state court).

Question 221

___ is the phase of litigation in which the parties find out what the other parties and witnesses know.

Answer 221

Discovery

Question 222

____ are information that each party must give to other parties—even though the parties have not asked for it.

Answer 222

Initial required disclosures

Question 223

Unless a court order or stipulation of parties says otherwise, within ___ of the Rule 26(f) conference, each party must disclose certain information.

Answer 223

14 days

Question 224

Initial Requires disclosure include

Answer 224

• Identities of Persons with Discoverable Information that the Party May Use to Support Her Claims or Defenses
• Documents and Things that the Party May Use to
  Support Her Claims or Defenses
• Computation of Relief and Along with Supporting Documents/ESI
• Insurance Coverage

Question 225

The names, telephone numbers, and addresses of persons with discoverable information, and the topics on which they have discoverable information, who the party may use___, must be disclosed as an initial disclosure.

Answer 225

to support her claims or defenses

Question 226

____ that the party may use to support her claims or defenses must be disclosed as an initial disclosure. ___ may be produced instead of the document itself.

Answer 226

Documents and tangible things; Copies or a description of the documents

Question 227

Documents and tangible things that are ____ need not be disclosed.

Answer 227

not in the party’s control

Question 228

Anyone claiming monetary relief must provide a ___ supported by documents or ESI of the amount sought as an initial disclosure.

Answer 228

“computation,”

Question 229

The parties must disclose any insurance that might cover ___ even though the existence of the insurance probably would not be admissible at trial.

Answer 229

all or part of the judgment in the case

Question 230

If a party fails to initially disclose material that was required to be disclosed, that party ___

Answer 230

cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless.

Question 231

REQUIRED DISCLOSURES ABOUT AN EXPERT
WITNESS

Answer 231

Later in the case, at a time directed by the court, each party must identify expert witnesses (”EWs”) who may provide testimony at trial (that is, opinion testimony) and provide certain other disclosures noted below.

Question 232

Facts known and opinions held by consulting experts are generally ___

Answer 232

not discoverable absent “exceptional circumstances.”

Question 233

As to an expert witness “who may be used at trial,” each party generally must disclose to the other parties the identity of and written report prepared by the EW. The written report must include:

Answer 233

• Opinions that the EW will express;
• The bases for the opinions;
• The facts used to form the opinions;
• The EW’s qualifications; and
• How much the EW is being paid.
• NOTE: Earlier drafts of the EW report and communications between the lawyer and the EW are work product.

Question 234

After the disclosure above, a party may ___

Answer 234

take the deposition of the EW. Best practice is for that party to subpoena the EW to compel her attendance. (Without the subpoena, the expert may not show up even if the
parties agreed to the deposition.) The deposing party ordinarily will bear the cost of the EW’s deposition.

Question 235

REQUIRED PRETRIAL DISCLOSURES

Answer 235

No later than 30 days before trial, the parties must give detailed information about their trial evidence, including identity of witnesses who will testify live or by deposition and documents, ESI, and other things that they intend to introduce at trial.

Question 236

Once the initial disclosures have been made, parties may request information from one another. However, assuming that no court order or stipulation provides otherwise, a party cannot send discovery requests to another party until ___

Answer 236

after the Rule 26(f) conference.

Question 237

Exception to the rule that you have to wait until after the Rule 26(f) conference to send discovery requests

Answer 237

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 238

In a deposition, a person gives live testimony in response to
questions by counsel or pro se parties. The questions are usually oral, but can be written (if written, they are read by the court reporter). The deponent ___

Answer 238

testifies under oath, and the deposition is recorded by sound or video or stenographically so that a transcript can be made.

Question 239

___ may be deposed.

Answer 239

Both parties and nonparties

Question 240

The deponent ___ to review her records prior to the deposition; testimony is from present recollection.

Answer 240

isn’t required

Question 241

A party ___ to be served with a subpoena to appear at a deposition.

Answer 241

does not need (A notice of deposition is sufficient to compel her appearance.)

Question 242

A ___ must be served with a subpoena or else she is not compelled to attend a deposition.

Answer 242

nonparty

Question 243

A ____ requires the deponent to bring requested materials with her to the deposition.

Answer 243

subpoena duces tecum

Question 244

Unless a nonparty agrees otherwise, the farthest she can be required to travel is ___

Answer 244

100 miles from where the nonparty resides or is employed.

Question 245

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 ____

Answer 245

designate a person(s) to testify on that matter

Question 246

A party cannot take more than ___ without court approval or stipulation.

Answer 246

10 depositions or depose the same person twice

Question 247

Depositions cannot exceed ___ unless the court orders or parties stipulate otherwise.

Answer 247

one day of seven hours

Question 248

Subject to the rules of evidence, depositions may be used at trial:

Answer 248

• To impeach the deponent;
• For any purpose if the deponent is an adverse party; or
• For any purpose if the deponent (regardless of whether a party) is unavailable for trial (for example, illness, out of the country, etc.), unless that absence was procured by the party seeking to introduce the evidence

Question 249

___ are written questions to be answered in writing under oath.

Answer 249

Interrogatories

Question 250

Interrogatories are sent ___

Answer 250

only to parties, never to nonparties

Question 251

The maximum number of interrogatories, absent a court order or stipulation, is ____

Answer 251

25, including subparts

Question 252

Interrogatories are to be answered within ____

Answer 252

30 days from their service.

Question 253

A party must answer interrogatories based upon ___

Answer 253

information reasonably available.

Question 254

If the answers to interrogatories can be found in business records and the burden of finding the answer would be about the same for either party, ____

Answer 254

the responding party can allow the requesting party to have access to the records.

Question 255

Contention interrogatories, that is, interrogatories that inquire
about legal contentions, are ___

Answer 255

permitted.

Question 256

___ 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.

Answer 256

A request to produce

Question 257

ESI must be produced in the form that the requesting party specifies, but ___

Answer 257

the responding party may object

Question 258

The disclosing party must respond to the request to produce ___, stating that the material will be produced or asserting objections.

Answer 258

in writing within 30 days of service

Question 259

Only ___ can be sent a request to produce, but a nonparty can be served with a ___ to require her to disclose the same types of information.

Answer 259

parties; subpoena

Question 260

___ is required to compel a party (or person in the party’s
custody and control) to submit to a medical exam

Answer 260

A court order

Question 261

The requesting party of a medical exam must show: ___

Answer 261

(1) that the person’s health is in actual controversy gmand (2) good cause.

Question 262

The ___ party chooses the licensed medical professional to perform the exam.

Answer 262

requesting

Question 263

Once the court orders a medical exam and the medical professional conducts the exam, the medical professional will write a report and give it to the requesting party. The person undergoing the exam can get a copy of the report. If the person requests and obtains the report, she must ___

Answer 263

(on request) produce all medical reports by her own doctors about that same medical condition. She also waives
any doctor-patient privilege that she may have had with her doctor regarding that condition.

Question 264

____ is a written request that someone admit certain matters.

Answer 264

A request for admission

Question 265

The responding party to a request for admission must respond ___, either denying specifically or objecting. But if the responding party states ____, she can state that she doesn’t know the answer.

Answer 265

in writing within 30 days of service; that she has made a reasonable inquiry and cannot find enough information from which to admit or deny

Question 266

In response to a request for admission if the party fails to deny a proper request, the matter is ___

Answer 266

deemed admitted.

Question 267

Rule 11 ___ apply to discovery documents. However, by another rule, every discovery request and response is signed by counsel certifying it is: ___

Answer 267

does not;
- Warranted;
- Not interposed for an improper purpose; and
- Not unduly burdensome.

Question 268

If new facts come to light after responding to discovery that make a required disclosure, interrogatory, request for production, or request for admission incomplete or incorrect, the party must ___

Answer 268

supplement her response to discovery.

Question 269

A party can discover anything that is ___

Answer 269

relevant to a claim or defense and proportional to the needs of the case.

Question 270

Unlike initial disclosures, ____ may be discoverable using the regular discovery tools.

Answer 270

something harmful to you

Question 271

Information need not be ___ to be discoverable.

Answer 271

admissible

Question 272

If documents are not reasonably accessible = if you find good cause for discovery court can ____

Answer 272

still order production and can allocate the expense between the parties instead

Question 273

A party can object to discovery on the basis of ___

Answer 273

evidentiary privilege

Question 274

Work product or “trial preparation material,” which is material
____, is protected.

Answer 274

prepared in anticipation of litigation

Question 275

Work product ___ generated by a lawyer.

Answer 275

need not be (It can be prepared by the party herself or by any representative of a party)

Question 276

Work product sometimes may be discovered if the requesting
party can show ____

Answer 276

substantial need and undue hardship in obtaining the materials in an alternative way. (This is called “qualified work
product.”)

Question 277

Some work product, however, is absolutely protected and
cannot be discovered. Including:

Answer 277

“Opinion work product” consists of mental
impressions, conclusions, opinions, or legal theories of the disclosing party and cannot be discovered.

Question 278

There is a special rule that the ___ is discoverable (not work product) even if in report that is protected.

Answer 278

identify of people with discoverable information

Question 279

Notwithstanding work product, a party has a right to demand
discovery of ___.

Answer 279

any previous statement that she has made regarding the case.

Question 280

If a party withholds discovery or seeks a protective order based on privilege or work product, she must ____

Answer 280

claim the protection expressly and describe the materials in detail. She does this in a document, called a privilege log, that lists the materials protected by date, author, recipient, and privilege or protection claimed

Question 281

The privilege log must be in enough detail that __

Answer 281

it allows the judge to determine whether the material is
protected

Question 282

If a party inadvertently produces privileged or protected material, she should ___. The other party then must
____

Answer 282

notify the other party promptly; return, sequester, or destroy the material pending a decision by the court about whether there has been a waiver.

Question 283

There are three ways courts get involved in discovery disputes:

Answer 283

1. Protective Order
2. Party Responds, But Not Fully
3. No Response to Discovery Request

Question 284

If the responding party thinks a discovery request subjects her to ___, she can move for a protective order. The party must certify that ____.

Answer 284

annoyance, embarrassment, undue burden or expense; she tried in good faith to resolve the issue without court involvement; that is, she asked the other side to “meet and confer.”

Question 285

If a party responds to a request but fails to answer all questions because she objects to them (or some of them), she may be ___

Answer 285

compelled to comply by court order

Question 286

A TRO may be issued “ex parte,” which means that a court has done something without giving notice
to the other party. The court will issue a TRO ex parte only if:

Answer 286

• The applicant files a paper under oath clearly showing that if the TRO is not issued, she will “suffer immediate and irreparable harm” if she must wait until the other side is heard.
• 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 287

If a responding party fails completely to attend her deposition, respond to interrogatories, or respond to requests for production, she will be subject to ___

Answer 287

various sanctions plus costs

Question 288

The party seeking sanctions generally must certify that she ___

Answer 288

tried in good faith to get the information without court involvement; that is, to try to “meet and confer.”

Question 289

When a producing party responds, but not fully sanctions are a two-step process.

Answer 289

1- The requesting party moves for an order compelling the producing party to answer the unanswered questions, to produce the unproduced material, etc., plus costs (including attorneys’ fees) of bringing the motion.
2 - If the producing party violates the order compelling her to
answer, the court can enter “merits” sanctions, along with costs and attorneys’ fees for bringing the motion.
+ The producing party could be held in contempt for violating a court order (except there is no contempt for refusal to submit to a medical exam).

Question 290

If the producing party fails to respond at all (see 10.7.3., above), the court can enter “merits” sanctions plus costs (and attorneys’ fees for the motion). There is no need to ____

Answer 290

get an order compelling answers; you go directly to “merits” sanctions.

Question 291

A judge is free to choose among the following as “merits” sanctions when they may be applied for not following discovery procedures:

Answer 291

E- stablishment order (establishes facts as true)
- Strike pleadings of the disobedient party (as to issues re the discovery)
- Disallow evidence from the disobedient party (as to issues re the discovery)
- Dismiss plaintiff’s case (if bad faith shown)
- Enter default judgment against defendant (if bad faith shown)

Question 292

When litigation is reasonably anticipated, parties must ___

Answer 292

preserve discoverable information.

Question 293

If ESI is truly lost (cannot be recovered or restored at any cost) and it was lost because the party in control of it failed to take reasonable steps to preserve it. The court may “order measures” to cure the harm caused to the other party.
- Can the court enter an “adverse inference” order; that is, tell the jury that it must presume that the lost information would be unfavorable to the party that lost the ESI?
Can it enter “merits” sanctions?

Answer 293

Only if the party who lost the ESI acted with intent to deprive the other party of the ESI.
- The court also may enter a default against the defendant when her conduct was in bad faith.

Question 294

If the court issues the TRO, the applicant must ___

Answer 294

post a bond to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

Question 295

If the court issues a TRO, the order must be
served on the defendant as soon as possible. Generally speaking, a party without notice of a TRO ___

Answer 295

cannot be punished for violating it.

Question 296

A ruling granting or denying a TRO ordinarily may ___

Answer 296

not immediately be appealed.

Question 297

A TRO must state its terms specifically, describe in detail what ___

Answer 297

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 298

A TRO is effective for no more that __ (or lesser time stated by the court), but the restrained party may move to dissolve or modify it earlier. If the applicant shows good cause before expiration, it can be extended for up to another ___.

Answer 298

14 days; 14 days

Question 299

A TRO cannot extend beyond ___. If the court extends a TRO beyond that time, it may be treated as a ___

Answer 299

28 days; preliminary injunction.

Question 300

A preliminary injunction ___ be issued ex parte.

Answer 300

cannot

Question 301

For a preliminary injunction the burden is on the applicant to show:

Answer 301

• She is likely to suffer irreparable harm if the injunction is not issued;
• She is likely to win on the merits of the underlying case;
• The balance of hardship favors her (threatened harm to applicant outweighs harm to other party if the injunction is issued); and
• The injunction is in the public interest.

Question 302

There is ___to an injunction.

Answer 302

no right (The matter is in the court’s discretion.)

Question 303

As with a TRO, if the court grants the preliminary injunction:

Answer 303

• the applicant must post a bond.
• the preliminary injunction must state its terms
  in specificity, describe in detail what the defendant must do or refrain from doing, and state why it was issued.

Question 304

An order granting or denying a preliminary injunction may be appealed ___.

Answer 304

as of right.

Question 305

How a case can go away without going to trial:

Answer 305

1. Voluntary dismissal
2. Default and Default Judgment
3. Motion to dismiss for failure to state a claim (12b)
4. Motion for summary judgment (56)

Question 306

If the plaintiff wants to withdraw the case, she may do so without a court order ___. The parties may also ___ to a voluntary dismissal without court order.

Answer 306

before the defendant serves an answer or motion for summary judgment; stipulate

Question 307

After an answer/motion has been served court permission is __ absent a stipulation to dismiss the case

Answer 307

required (the court has discretion to grant).

Question 308

The first voluntary dismissal is ___. The second voluntary dismissal is ___

Answer 308

“without prejudice.”; “with prejudice,” which operates as an adjudication on the merits and takes away the plaintiff’s ability to refile the case.

Question 309

____ might occur when the defendant does not respond to the complaint in time (21 days after being served with process).

Answer 309

A default and default judgment

Question 310

Entry of Default

Answer 310

A default is a notation by the court clerk on the docket sheet in the case. A default does not happen automatically. Rather, the plaintiff must move for entry of default. The plaintiff must demonstrate that the defendant failed to respond in time.

Question 311

___, the defendant can respond by motion or answer even beyond 21 days.

Answer 311

Until a default is actually entered

Question 312

The entry of default cuts off the defendant’s right to respond. Entry of default, however, does not ____

Answer 312

automatically entitle the plaintiff to relief.

Question 313

The clerk of the court can enter a default judgment if:

Answer 313

• The defendant has made no response at all (that is, she has not “appeared”);
• The claim itself is for a sum certain in money;
• The plaintiff gives an affidavit (sworn statement) of the sum owed; and
• The defendant is not a minor or incompetent.
  -> If any of these is not true, the plaintiff must apply to the court for the default judgment.

Question 314

The judge will hold a hearing and has discretion whether to enter the judgment. The defendant is entitled to notice of the hearing if she has appeared in some fashion in the case. case. Unlike at trial, the plaintiff’s recovery in a hearing for a default judgment is limited to ___

Answer 314

what is pleaded in the complaint.

Question 315

The defendant may move to have the court set aside a default or default judgment by showing ___

Answer 315

(1) good cause (like excusable neglect) and (2) a viable defense.

Question 316

A motion to dismiss for failure to state a claim tests whether the case belongs in the litigation stream at all. If the ____, the case can be dismissed.

Answer 316

plaintiff’s complaint fails to state a claim

Question 317

The same motion (for failure to state a claim) if made after the defendant has answered, has a different name: ___

Answer 317

a motion for judgment on the pleadings.

Question 318

What the Judge Considers in Ruling on a failure to state claim/judgment on the pleadings Motion

Answer 318

In ruling on this motion, the court ignores the plaintiff’s legal conclusions. It looks only at the plaintiff’s allegations of fact on the face of the complaint (and not any evidence) and asks “if these facts are true, do they state a plausible claim?”
-> the judge uses her experience and common sense to see if the facts state a plausible claim.

Question 319

The court might allow the plaintiff to ___ to try to state (plead) a claim.

Answer 319

amend the complaint

Question 320

____ is used after the case has been filed
and the plaintiff has survived any Rule 12 motions. So we’re in the litigation stream. But a trial might not always be needed.

Answer 320

A motion for summary judgment

Question 321

Summary judgment weeds out cases in which no trial is necessary. The only reason to have a trial is to ___

Answer 321

resolve a dispute of material fact.

Question 322

The party moving for summary judgment must show that:

Answer 322

• There is no genuine dispute on a material fact; and
• She is entitled to judgment as a matter of law.

NOTE: Even If the standard is met, the court is not always required to grant the motion.
- There may be some discretion to deny the motion (measured by an “abuse of discretion” standard on appeal).

Question 323

Any party can move for summary judgment no later than ___

Answer 323

30 days after close of discovery

Question 324

The motion for summary judgment can be for ___

Answer 324

“partial” judgment (sometimes called summary adjudication)

Question 325

In a summary judgment motion, the court can look at evidence. The court views that evidence in the light ___

Answer 325

most favorable to the nonmoving party.

Question 326

The evidence considered at summary judgment usually are

Answer 326

(1) affidavits, (2) declarations, (3) deposition testimony, or (4) interrogatory answers. (not the complaint! = unless it is a “verified pleading,” which is rare)
-> Why can these things be considered “evidence” = Because they are under oath.

Question 327

If the party opposing summary judgment needs more time to find evidence to oppose the motion, she may file an ____

Answer 327

affidavit or declaration with the court stating what that evidence would be. The court may allow more time for the party to obtain evidence.

Question 328

The judge ___ credibility on a summary judgment motion.

Answer 328

does not assess

Question 329

Suppose an authenticated videotape of the accident scene discredits Plaintiff’s witness’s version of the facts. The court can ____

Answer 329

ignore Plaintiff’s evidence and grant summary judgment.

Question 330

Unless the court order says otherwise, at least ___ 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 ___ the Rule 26(f) conference.

Answer 330

21 days; than 14 days
after

Question 331

Contents of Discovery Plan

Answer 331

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 332

Scheduling Order

Answer 332

Unless local rule or court order says otherwise, the court enters an
order setting cut-offs for joinder, amendment, motions, completion of
discovery, etc. This is a roadmap for how the litigation proceeds up to
trial.

Question 333

The court may hold ___ to oversee the case.

Answer 333

“pretrial conferences”

Question 334

The ____ determines the issues to be tried and
evidence to be proffered at trial. This is recorded in the pretrial
conference order, which supersedes the pleadings. This order is
a roadmap of issues to be tried, evidence to be presented at trial,
witnesses, etc.,

Answer 334

final pretrial conference

Question 335

If we have a jury, it determines the ____
If we don’t have a jury, the judge determines the facts

Answer 335

facts and returns the “verdict.”

Question 336

The judge also might hear a ___ which is a pretrial motion outside of the presence of the jury to decide whether
the jury should hear certain evidence.

Answer 336

“motion in limine,”

Question 337

The Seventh Amendment preserves the right to jury in ____. The Seventh Amendment doesn’t
apply in state court, only federal civil cases.

Answer 337

“civil actions at law,” but not in suits at equity

Question 338

What if a case includes both law and equity?

Answer 338

Facts underlying a damages claim will be tried to the jury. Facts relating wholly to an equity claim are tried to the judge. Generally, the jury issues will be tried first.

Question 339

What if a fact (for example, whether the defendant trespassed
on the plaintiff’s property) underlies both a claim for damages and a
claim for an injunction?

Answer 339

The jury will decide that fact.

Question 340

A party must demand the jury in writing no later than ____. If a
party fails to do so, she waives the right to a jury.

Answer 340

14 days after service of the last pleading addressing a jury triable issue (The last pleading addressing a jury issue is usually the answer)

Question 341

In the jury selection process (“voir dire”), each side might ask the
court to strike (remove) potential jurors. There are two kinds of
challenges to jurors.

Answer 341

1 - For Cause Challenges
2 - Peremptory Challenges

Question 342

A juror may be challenged “for cause,” for example, because the
potential juror will not be impartial. Parties have ___
of challenges for cause.

Answer 342

an unlimited number

Question 343

Peremptory Challenges

Answer 343

There are challenges for which the party states no reason.

Question 344

Generally, each side is limited to ___ peremptory challenges.

Answer 344

three

Question 345

Importantly, peremptory challenges may be used only in ___ because jury selection is a state action even
in a civil action between private parties.

Answer 345

a race- and gender-neutral manner

Question 346

Number of Jurors in Federal Court

Answer 346

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

Question 347

All jurors participate in the verdict unless a juror is ___, and the verdict must be unanimous unless
the parties agree otherwise.

Answer 347

excused for good cause

Question 348

Parties submit proposed jury instructions to the judge. They do this at ___

Answer 348

the close of all evidence (or earlier if the court says so).

Question 349

The judge may hold an ____ conference with the parties to
discuss proposed jury instructions.

Answer 349

“off the record”

Question 350

Before final argument and instruction, and on the record, the court informs the parties of ___.

Answer 350

(1) what instructions it will give and (2) what proposed jury instructions it rejected.

Question 351

The parties must be allowed to object on the record and out of the jury’s
hearing to the chosen jury instruction. This is true even if the party objected during the “off the record”
conference. If objections are not made before the jury is “charged”
(given the instructions), ___

Answer 351

the objection is waived. A court can revisit that jury instruction only for clear error that affected a party’s rights

Question 352

Forms of Verdicts (The judge determines what verdict form the jury will use)

Answer 352

• General Verdict
• Special Verdict
• General Verdict with written questions

Question 353

General Verdict

Answer 353

just says who wins and, if plaintiff wins, what the
relief is.

Question 354

Special Verdict

Answer 354

the jury answers, in writing, specific written questions about the facts in dispute, but it does not say who wins or loses.

Question 355

General Verdict with Written Questions

Answer 355

the jury not only gives a general verdict, but it also answers specific questions submitted to it.
The questions ensure that the jury focused on the important issues.

Question 356

If the jury returns a general verdict, the clerk of the court will ___

Answer 356

enter the judgment.

Question 357

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 ____

Answer 357

approves the judgment and the
clerk enters it.

Question 358

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 358

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

Question 359

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

Answer 359

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

Question 360

In general, a verdict may be “impeached” based upon ___

Answer 360

“external” matters (i.e., bribers). But a verdict will not be set aside if the misconduct was harmless—for example, a juror chatted for a moment with a party about the weather (not the case).

Question 361

When there is no jury (either Seventh Amendment did not apply or the parties waived the right to jury trial), the judge determines the facts at trial. The judge must ____

Answer 361

record her “findings of fact” orally on
the record or in writing, along with her conclusions of law (which are stated separately from her findings of fact).

A judgment also must be entered. The judgment is very short—just telling who wins and, if plaintiff won, the relief granted.

Question 362

Motion for Judgment as a Matter of Law (“JMOL”)

Answer 362

If the judge grants JMOL, 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 363

Standard for Granting JMOL

Answer 363

The standard for granting the motion is that reasonable people could not disagree on the result. It’s like summary judgment (where there
was no dispute of material fact), except that this comes up at trial instead of before trial.
-> Like summary judgment, the court views the evidence in the light most favorable to the non-moving party

Question 364

Timing of JMOL

Answer 364

A party can move for a JMOL any time before the case is submitted to the jury, but a court may not grant the motion until the party opposing the motion has been heard at trial on the issue.

Question 365

Renewed Motion for Judgment as a Matter of Law (“RJMOL”)

Answer 365

is the same as a JMOL, but it comes up after trial. If an RJMOL is granted, the court enters judgment for the party that lost the jury verdict.
- As with a JMOL, the court views the evidence in the light most favorable to the non-moving party.

Question 366

Timing of RJMOL

Answer 366

must be made within 28 days after entry of judgment.

Question 367

Absolute prerequisite to bringing RJMOL

Answer 367

The party must have moved for JMOL at the proper time at trial. Failure to do
so waives RJMOL.
-> Not only that, the RJMOL motion must be based upon the same grounds as the JMOL motion

Question 368

Motion for New Trial

Answer 368

Assume that judgment is entered, but some error at trial requires that we should start over and have a new trial. A new trial can be granted
on any (non-harmless) error that makes the judge think there should be a do-over.

Question 369

A party must move for a new trial within ___ of the judgment.

Answer 369

28 days

Question 370

Some reasons a motion for a new trial may be granted are:

Answer 370

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

Question 371

It’s possible that a party met the standard for RJMOL but waived it by not moving for JMOL at trial. BUT That party could ___

Answer 371

move for new trial on the grounds that the verdict is against the weight of the evidence.

Question 372

Ordering a new trial is less drastic than ordering RJMOL. Why?

Answer 372

A new trial results in starting over, so the same party may still win. An RJMOL results in taking judgment away from one party and giving it
to the other.

Question 373

To avoid a new trial, the court
might suggest ___. If The ground for new trial on this basis is that the jury’s damages figure is excessive or inadequate.

Answer 373

remittitur or additur.

Question 374

The majority standard for excessive/inadequate damages (including the federal) is whether the
damages figure ___

Answer 374

“shocks the conscience”

Question 375

Remittitur

Answer 375

playing hardball with the plaintiff. The court offers the plaintiff a choice: remit part of the damages award or go through a
new trial.
-> But note that the court cannot simply lower the figure that was set by the jury (that would violate the Seventh Amendment).

Question 376

Additur

Answer 376

playing hardball with the defendant. The court offers the defendant a choice: add to the damage award or go through a new
trial.
-> Additur may be allowed in state court but not federal court; it violates the Seventh Amendment.

Question 377

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

Answer 377

14 days before trial.

Question 378

Rejecting an offer of judgment

Answer 378

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 379

After a judgment is entered, it is possible to obtain relief from it under
certain circumstances.

Answer 379

• Clerical error
• Mistake, excusable neglect (including viable defense)
• Fraud, misrepresentation, or misconduct by opposing party
• Newly discovered evidence that could not have been discovered with due diligence for a
  new trial motion. The newly discovered facts must have existed at the time of trial
• Judgment is void (for example, the court had no SMJ)

Question 380

Timing for motion from relief for clerical error

Answer 380

any time

Question 381

Timing for motion from relief for mistake, excusable neglect (including viable defense)

Answer 381

Reasonable time (never more
than one year)

Question 382

Timing for motion from relief for fraud, misrepresentation, or misconduct by opposing party

Answer 382

Reasonable time (never more
than one year)

Question 383

Timing for motion from relief for Newly discovered evidence that could not have been discovered with due diligence for a new trial motion. The newly discovered facts must have existed at the time of trial

Answer 383

Reasonable time (never more
than one year)

Question 384

Timing for motion from relief for Judgment is void (for example, the court had no SMJ)

Answer 384

Reasonable time (no maximum)

Question 385

The losing party has a right to appeal if the court’s order is a __.

Answer 385

final judgment (determines the merits of the
entire case = Does the trial court have anything left to do on the merits of the case?)

Question 386

The notice of appeal must be filed with ___ within ____ that is being appealed.

Answer 386

the district court; 30 days after entry of the judgment

Question 387

If the district court’s order is not a final judgment, it might be appealed using one of several doctrines.

Answer 387

1. Interlocutory Appeals of Injunctions as of Right
2. Interlocutory Appeals Act
3. “Collateral Order” Doctrine
4. Multiple Claims and Parties
5. Class Action
6. Extraordinary Writ (Mandamus or Prohibition)

Question 388

Interlocutory Appeals of Injunctions as of Right

Answer 388

Orders granting, modifying, or refusing preliminary or permanent injunctions are reviewable as of right despite the fact that the order may not be final. However, this type of review does not include TROs (but recall TRO becomes preliminary injunction after 28 days = then reviewable).

Question 389

The Interlocutory Appeals Act allows appeal of a nonfinal order if:

Answer 389

• The district judge certifies that it involves a controlling issue of law;
• As to which there is substantial ground for difference of opinion; and
• The court of appeals agrees to hear it.

Question 390

“Collateral Order” Doctrine

Answer 390

The appellate court has discretion to hear an appeal on an issue if that issue:
- Is distinct from the merits of the case;
- Involves an important legal question; and
- Is essentially unreviewable if parties await a final judgment.

Question 391

When more than one claim is presented in a case, or when there are multiple parties, the district court may expressly direct entry of a final judgment as to one or more of them if ____

Answer 391

it makes an express finding that there is no just reason for delay

Question 392

A court of appeals has ___ to review an order granting or denying certification of a class action. The party seeking review must
do so at the court of appeals within ___. An appeal does not stay the proceedings at district court unless the court of appeals or district court says so.

Answer 392

discretion; 14 days of order.

Question 393

___is an original proceeding in the court of appeals to compel the district judge to make or vacate a particular order. The writ is not a substitute for appeal. It is available only if ____

Answer 393

An extraordinary writ of mandamus or prohibition; the district court is violating a clear legal duty.

Question 394

When the district judge decides questions of law, the court of appeals uses a ____

Answer 394

de novo standard; that is, no deference is given to the district judge when reviewing that decision.

Question 395

In a non-jury trial, when the district judge determines questions of fact, the court of appeals will affirm unless the findings are ____

Answer 395

clearly erroneous.

Question 396

In a jury trial, when the jury decides questions of fact, the court of appeals will affirm unless ___

Answer 396

reasonable people could not have made that finding.

Question 397

On discretionary matters (for example, whether to grant a motion to amend pleadings, to allow permissive intervention) that the judge
decides, the court of appeals will affirm unless ____

Answer 397

the district court judge abused her discretion.

Question 398

Content of jury instructions is reviewed ___; but the decision to give a particular instruction is review ___

Answer 398

de novo (question of law); abuse of discretion (discretionary matter)

Question 399

Not every error (even an error of law) requires reversal on appeal. No reversal is required if ____

Answer 399

the error is harmless; that is, it did not affect the
outcome of the case.

Question 400

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 the preclusion law of ___

Answer 400

the judicial system that decided Case 1.

Question 401

Requirements for Claim Preclusion

Answer 401

For a claim to be precluded (or barred), three things must be true:
1. Same Claimant Suing the Same Defendant (not just the same parties)

2. Valid, Final Judgment on the Merits (Unless the court said the judgment was “without prejudice” when entered, any judgment is “on the merits” unless it was based on a lack of jurisdiction (both personal and subject matter), improper venue, or a failure to join an indispensable party.
3. Case 1 and Case 2 Must Be the “Same Claim”
   - The majority view (including federal law) is that a claim is any right to relief arising from a transaction or occurrence.
   - But there is one minority view,
   the so-called “primary rights doctrine.” -> Under this view, there are separate claims for property damage and for personal injuries that arise in a single event.

Question 402

Requirements for issue preclusion:

Answer 402

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
   - That is, it is basis for the judgment.
4. Against Whom Is Preclusion Used? (Due Process Factor)
   - Issue preclusion can be used only against somebody who was a party to Case 1 or in “privity” with a party.
5. By Whom Is Preclusion Used? (Mutuality Rules)
   - Nonmutual Defensive Issue Preclusion = generally allowed
   - Nonmutual Offensive Issue Preclusion = most states say no, but some consider facotrs in order to apply

Question 403

Nonmutual Offensive Issue Preclusion application facotrs (for states that allow it)

Answer 403

• The party to be bound had a full and fair opportunity to litigate in Case 1;
• The party to be bound had a strong incentive to litigate Case 1.
• The party asserting issue preclusion could have easily joined to Case 1.
• There have been no inconsistent findings on the issue.

Question 404

Preclusion: Merger vs. Bar

Answer 404

Merger = when the party one, can’t being another claim
Bar = party lost, can’t bring another claim

Question 405

What preclusion law applies

Answer 405

Federal common law applies to preclusion, but federal law says that in diversity you apply state law of the state in which the court sits