Civ Pro

Question 1

Requests for admission

Answer 1

allow a party to ask another party to admit the truth about matters within the scope of discovery relatingt to facts, the appliction of law to facts, opinions about either, or the genuineness of documents.

a party that fails to admit a matter later proven true must generally pay the reasonable expenses incurred in making that proof unless four conds apply (court sustained prior objection, admission sought was of no substanital importance, responsind party rasonably believed that it would prevail on the matter, another good reason existed)

Question 2

Claim preclusion

Answer 2

a valid final judgment on the merits precludes a party from litigating an indentiical claim against the same party in a second action.

claims are indentical if they

1) arise from the same transaction, occurrence, or series thereof, and

2) could’ve been raised in the first action

Question 3

if a valid final judgment on the merits was entered in fed court, then the court presiding over a subequent action involving the same claim and parties must apply…

Answer 3

federal law

Question 4

if a valid final judgment on the merits was entered in state court, then the court presiding over a subequent action involving the same claim and parties must apply…

Answer 4

that state’s claim preclusion law to the second action

Question 5

when considering a motion for judgment as a matter of law (JMOL), a court must

Answer 5

1) view the evidence and draw all reasonable inferences in favor of non-movant

2) disregard evidence favorable to movant that jury isnt required to believe,

3) not consider the credibility of the witness/eval the weight of the evid

Question 6

FRCP 11(b)(2) Sanctions on a client

Answer 6

a court cannot impose monetary sanctions on a party represented by an atty for a violation unless there is evidence that the client lied to atty

Question 7

a court may order measures no greater than necessary to cure prejudice caused by a party’s failure to preserve ESI that

Answer 7

1) shouldve been preserved in the anticipation or conduct of litigation,

2) is lost bc the party failed to take reasonable steps to preserve it, and

3) cannot be replaced or restored

Question 8

tag jurisidiction

Answer 8

a fed court obtains personal juris over a D served w/ process while voluntarily present in forum state unless D was

(1) fraud/forcefully brought into the state to be served, or

(2) present in state to attend unrelated judicial proceedings

Question 9

Court polling jurors

Answer 9

a court must on party’s request or on its own, poll jurors invidivudally after a verdict is returned but before jury is discharged. if poll reveals verdict is not unanimous, court can (1) direct jury to delierate further, or (2) order new trial

Question 10

FRCP 4(e)(2) - delivery of service

Answer 10

Service of process can be made by:

• delivering notice and copy of summons to indvidual personally,
• leaving a copy of each at the individual’s dwelling with someone of suitable age and discretion who resides there,
• delivering a copy of each to an agent authorized by appointment or by law to recieve service of process

Question 11

a p may ask a d to waive formal service process by

Answer 11

sending the complaint, two copies of waiver form, and prepaid means of returning the form

if D waives formal service then D has 60 days to answer the complaint and if it doesnt have to pay formal service of process

Question 12

Process must be served within…

Answer 12

90 days of filing a complaint.

court must extend service time if P shows good cause that service was delayed due to matters outside of P’s control

Question 13

collateral order doctrine

Answer 13

Exception to final judgment rule

allows an interlocutory appeal when a district court
*conclusively resolves an important issue,
*that issue is seperate from the merits of the underlying claim and
*that order is effectively un-revivable on appeal from final judgment

Question 14

when no internationally agreed method of service or applicable federal law exists, an indivdual D in a foreign country can be served…

Answer 14

(1) following foregin country’s rules for service,

(2) as the foreign country arects in response to letter rogatory, or

3) by delivering process to D personally or by mail - if permitted by foreign country

Question 15

omnibus motion rule

Answer 15

requires that all FRCP 12 defenses (lack of PJ, improper venue, or insufficient service) be consolidated in a single pre-answer motion.

defenses are considered waived if omitted

Question 16

Service by publication is only permitted when

Answer 16

D or D’s address is unknown or unobtainable

Question 17

FRCP 24(a) - intervention of right

Answer 17

court must permit intervention if movant

1) has an interest related to the property or transaction that’s the subject of the action,

2) dispostion without hte movant may impair or impede the movant’s ability to protect its interest, and

3) its interest is not adequately represented by exisiting parties

Question 18

FRCP 24 - permissive intervention

Answer 18

court may permit intervention when either:
1) nonparty’s claim/defense shares common question of law or fact w/ main action, or
2) fed statute gives conditional right to interevene

court must consider whether intervention will unduly delay or prejudice adjudication of original parties’ rights

Question 19

Who can remove a case to federal court?

Answer 19

Only Ds listed in P’s complaint have the power to remove a case from state to fed court.

a party joined to the action through a counterlcaim is not considered a D for removal purposes

Question 20

Amended pleading

Answer 20

used to set forht a transsaction, occurrence, or event that arose before the pleading to be amended was filed

can be amended within 21 days after service

Question 21

Supplemental pleading

Answer 21

is used to set forth a transaction, occurence or event that arose after the pleading to be supplemental was filed

Question 22

Initial conference for discovery

Answer 22

parties must hold an intial conference to plan for discovery.

conference must be held ASAP and at least 21 days before a scheduling conference w/ the judge is held/judge’s scheduling order is due

Question 23

Requirements for complaint

Answer 23

must contain a short and plain statement of the claim showing that the P is entitled to relief.

when a complaint alleges mistake, fraud, or a mental condition, (1) D’s intent or other mental condition may be alleged generally but (2) the circumstnaces giving rise to the claim msut be stated with particularity

Question 24

SCOTUS has no jurisdiction to review a state court decision based on…

Answer 24

adequate state law ground that completely resolves the case independent of federal law

Question 25

FRCP 50 says a party can can challenge the sufficency of the evidence supporting a jury verdict on appeal if it…

Answer 25

moved for JMOL before case was submitted to a jury, and

filed a renewed motion for JMOL within 28 days after the entry of final judgment that could have included an alternative or joint request for new trial

Question 26

Rule 13(g) - cross claim against co-party

Answer 26

a claim asserted by one party against a coparty (D v. D or P v.P)

must arise out of the same transaction or occurence as the intial claim

Question 27

For rule 13(g), to determine whether 2 claims arise out of the same transaction or occurence courts look at

Answer 27

1. whether the issue of fact and law in Ps claim and Ds cross claim are essentially the same
2. whether the same evidence would support or refute Ps claim and Ds cross claim
3. whether there’s a logical relationship between P’s claim and D’s cross claim, and
4. whether res judicatta would bar a subseequent suit on the cross claim

Question 28

Supplemental juris

Answer 28

permits fed district courts that have original jurisidction to assert supplemental jurisidction over all the other claims that are so related to claims in the action within such original jurisidction that they form part of the same case or controversey - a common nucleus of operative fact

Question 29

Younger abstention doctrine

Answer 29

requires a federal court to abstain when a declaratory judgment or injunction by that court would interefer with a pending state crim or civil proceeding that
(1) involves an important state interest, and
(2) provides an adequate opporunity to litigate

Question 30

FRCP 54(b) final judgment rule

Answer 30

a decision that fully resolves a dispute on the merits and leaves nothing for the court to do but enforce the judgment

54(b) allows court to designate their resolutions of particular claims as immediately appealable.

court may direct entry of final judgment if court expressly determines there’s no just reason for the delay. permits an appeal to be taken from final decision(s) without waiting for final decision to be rendered

Question 31

Mandamus or prohibition

Answer 31

Exception to final judgment rule

avail to allow appellate court to confine trial judges to the lawful exercise of their jurisidction or to compel them to act if they have abdicated their jurisidctionary/obligation

Question 32

pendent appellate jurisidction

Answer 32

exception to final judgment rule

designed to prevent parties from interrupting litigation by pursuing piecemeal appeals.

appeal decisions and review others alongwith it

Question 33

party asserting issue preclusion/collateral estoppel precludes re-litigation of factual issue must establish that

Answer 33

1) previous determination was necessary to the decision;

2) issues must be identical;

3) issue was actually decided in a decision that was final, valid, and on the merits;

4) the party being precluded from re-litigating the issue was adeqautely represented in the previous action,

5) issues need to be actually raised and litigated

issues that were actually litigated and decided and essential to the judgment in a previous case cannot be litigated against

Question 34

issue preclusion can be asserted in two different forms

Answer 34

parties or non-parties to the first action against parites to the first action either

(1) defensively when used by a D in the 2nd action to avoid an issue, (shield for D) or

(2) offensively when used by a P in 2nd action to establish an issue (sword for P)

Question 35

General jurisidiction

Answer 35

D’s affiliations with the state are so continuous and systematic as to render it essentially at home in the forum state

affiliations that render corporate D at home = PPOB or place of incorporation

individual D = domiciled there

Question 36

specific jurisidiction

Answer 36

1) P’s claim arises from or is closely related to the D’s minimum contacts with the forum state (purposeful availement), and

2) the exercise of juris complies with notions of fair play and substantial justice

can d reasonably anticipate being hauled into court there?

Question 37

personal jurisdiction

Answer 37

A fed court can exercise personal jurisdiction over a D who is subject to the
jurisdiction of the courts of the state in which the federal court sits.

can be specific or general

Question 38

28 USC Section 1331

Answer 38

Federal question jurisdiction

allows a case to be heard in federal court if it is a claim based on constitution, fed law, or fed treaty

Question 39

28 USC Section 1332

Answer 39

Diversity jurisdiction

Allows a federal court to have jurisdiction over a state claim if the parties are diverse from one another and the amount in controversey in good faith exceeds $75,000.

diversity for indvidiuals = domicile (presence and intent to remain)

diversity for corporations = place of incorporation or principal place of business (nerve center of the corp - where the corp’s officers direct, control, and cooridate the corp’s activities)

diversity of citizenship is determined as of the time the suit is filed *

Question 40

amount in controversy for diversity juris can also be determined when a p requests equitable relief which is calculated by the larger of the following

Answer 40

the cost to the D if forced to comply w/ the requested equitable relief (lost sales), or

the worth to the p if the requested equitable relief is granted (expected profits)

Question 41

FRCP 18 - allows a party to join as many claims…

Answer 41

as it has against an opposing party in fed court even if claims arise out of diff facts or occurrences - provided SM juris is satisfied

Question 42

TROs

Answer 42

can be issued without notice to the adverse party, but only in limited circumstances and
only for a limited time.

To secure a TRO without notice, the nonprofit would need to submit an
affidavit containing specific facts that demonstrate a risk of “immediate and irreparable injury” if
a permit is issued.

In deciding whether to grant a TRO, courts will also consider the same factors that are relevant in deciding whether to grant a preliminary injunction (e.g. the moving party’s likelihood of success on the merits, the balance of hardships, and the public interest).

The TRO would last only long enough for the court to consider and resolve a request by the nonprofit for a preliminary injunction, but no longer than 14 days (unless the court extends it for good cause or the adverse party consents to an extension). In addition, bond is required.

Question 43

FRCP 60(b)(5) - relief from final judgment

Answer 43

a party may file a motion within a reasonable time to obtain relief from a judgment that
1) has been satisifed, released or discharged
2) is based on an earlier judgment that’s be reversed or vacated, or
3) will not equity if applied prospectively

Question 44

FRCP 60(b) - relief from final judgment that must be filed w/in 1 year

Answer 44

mistake, inadvertance, surprise, excusable neglect,

newly disocvered evidenced,

fraud, misrep, misconduct

Question 45

SCOTUS has original jurisdiction in

Answer 45

1) cases involving an abmassador public minister, or consul, and

2) caes in which a state is a party.

in all other cases, SCOTUS appellate juris requires a lower court decision

Question 46

An organization has standing to sue on its members behalf when

Answer 46

1) the members themselves would have standing,

2) the interests at stake relate to the org’s purpose, and

3) if damages are sought suit does not require member participation

Question 47

a party can generally present evid to support an adverse inference against the opposing party including evdience on the intentional destruction of reelvant evid.

Answer 47

in civil vases only, a party can ask the jury to draw an adverse infernece from the opposing party’s invocation of the priv against self incrim

Question 48

In a removal action, a party preserves its right to a jury trial by

Answer 48

1) demanding a jury in state court before removal, or

2) serving a jury trial demand within 14 days after filing or being served with the notice of removal so long as all necessary pleadings had been served before removal

Question 49

a default judgment may be etnered by the clerk unless

Answer 49

1) D has appeared,

2) D is legally incompetent or a minor,

3) Ps claim is not for a sum certain or a sum that can be made certain by a calculation, or

4) the P failed to include an affidavit establishing the amount due

Question 50

Under separation of powers doctrine

Answer 50

each branch of gov has seperate and distinct powers that generally cannot be exercised by another branch.

congress and the judiciary cannot interfere w/ Pres’s plenary (absolute) power to grant reprives and pardons

Question 51

Implied causes of action (bivens actions) permit recover of damages against fed officials for…

Answer 51

(1) a 4A claim for unlawful earch and seizure,

(2) a 5A claim for sex baesd employment discrim, and

(3) 8A for failure to provide medical trxt

Question 52

FRCP 55 says

Answer 52

P must serve D w/ written notice of the default judgment application at least 7 days before a hearing on the matter

Question 53

a party’s inital disclosure must include…

Answer 53

all documents, electronic storage information, and taingible things in party’s possession that the party may use to support its claim or defenses - not those of the opposing party

Question 54

class action requirements

Answer 54

1) commonality,

2) adequacy,

3) numerosity,

4) typicality, and

5) show superiority and that common questions predominate

Question 55

Under class action fairness act a federal district court can exercise diversity juris over a class action if.

Answer 55

1) the matter in controversey exceeds the sum or value of $5 million, and

2) any members of a class of Ps is a citizen of a state different from any D (minimal diversity)

Question 56

Standing

Answer 56

P must show
(1) an injury in fact (concrete and particularized harm),
(2) fairly traceable to the challenged conduct of the defendant, and
(3) likely to be redressed by a favorable judicial decision.

Question 57

a default judgment can be entered…

Answer 57

21 days after D is served w/ process

Question 58

the right to challenge subject matter juris

Answer 58

is never waived and can be raised at any point by the parites or on courts own intiative

Question 59

Pre-trial disclosures do not apply to

Answer 59

impeachment evidence

Question 60

pretrial disclosures must include

Answer 60

the name address, and phone number of each W,

deposition testimony that will be used at trial, and

all documents and exhibits

Question 61

Court’s discretionary decisions are reivewed for

Answer 61

abuse of discretion

(creation of jury instructions)

Question 62

court’s conclusions of law are reviewed

Answer 62

de novo

(contents of jury instructions)

Question 63

a court should enter judgment on the pleadings when the movant shows that

Answer 63

1) there is no genuine issue of material fact, and

2) the movant’s entitled to judgment as a matter of law

Question 64

Rule 11 sanctions - notice to opposing party

Answer 64

party must serve on opposing party a motion describing conduct that allegedely violated Rule 11.

must be given 21 days to correct/withdraw the motion with the issue. if 21 days passes and not corrected, then motion may be filed w/ the court

Question 65

Rule 11(b)(2) requires an attorney to

Answer 65

investigate statutory provisions before filing an answer

Question 66

Rule 11 sanctions the court may impose

Answer 66

“Whether a violation has occurred and what sanctions, if any, to impose for a violation are
matters committed to the discretion of the trial court . . .”

Sanctions should be “limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated

Sanctions can be monetary or nonmonetary. If the sanctions are monetary, they can include an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.”

nonmonetary sanctions would be “striking the offending paper; issuing an admonition, reprimand, or censure; requiring participation in seminars or other educational programs, or referring the matter to disciplinary authorities

A non-exhaustive list of factors the court may consider in deciding what sanctions, if any, should be imposed for a violation includes whether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended to injure; what effect it had on the litigation process in time or expense; whether the responsible person is trained in the law; what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; what amount is needed to deter similar activity by other litigants.

Question 67

in determining appropriate sanctions for spoliation, courts consider

Answer 67

the level of culpability of the spoliating party and the degree of prejudice the loss of evid has caused the other party

impose severe sanctions only when there is evid of bad faith in the form of an intentional effort to hide information

Question 68

Punitive damages almost always are unconstitutional if the ratio of punitive damages to compensatory damages is…

Answer 68

greater than 9 to 1.

Question 69

FRCP 20(a)(2) - permissive joinder

Answer 69

Persons may be joined in one action as Ds if

1) any right to relief is asserted against htem jointly, severally, or claims arise out of same occurence; and

2) any question of law or fact common to all Ds will arise in the action

some courts will ask whether Ps claims against D are logically related + would promote judicial economy to be heard together

Question 70

two persons may bring their separate claims in a single lawsuit in fed court if

Answer 70

1) those claims arise out of the same occurence, and

2) any question of law or fact common to all ps will arise in the action

Question 71

FRCP 14(a)(1)

Answer 71

a defending party may as a 3rd party P, serve a summons and complaint on a non-party who is or may be liable to it for all or part of the claim against it

Question 72

two requirements for a D to implead a nonparty

Answer 72

1) D must allege that non party is or may be liable to D,

2) nonparty’s liablity to D must be for all or part of the claim against the D

must be filed within 14 days of serving the answer

Question 73

FRCP 4(h) - service upon a corp may be effected within a US judicial district by…

Answer 73

follwoing state law for serving a summon in an action brought in courts of general jurisidction in the where the district court is located or where service is made or by delivering a copy of the summons and complaint to an officer, a managing or general agent

Question 74

FRCP 19(a)(1) - required joinder

Answer 74

a person is required party to a fed action and must be joined (if joinder is feasible) if any of the following is true:

1) in that person’s absence, the court cannot accord complete relief among existing parties; or

2) that person claiming an interset relating to the subject of the action and is so situated that disposing of the action in the person’s absence may
- as a partical matter impair or impede the persons ability to protect the interest; or
- leave an existing party subject to a substatinal risk of incurring double, multiple, or otherwise inconsistent obligation because of that interest

Question 75

A partnership or LLC/LLP’s domicile is based on

Answer 75

the citizenship of EACH of its members

Question 76

Rule 19 factors

Answer 76

MEE jul 22 q5

Question 77

A court shall grant summary judgment (FRCP 56(a)) if the movant shows that

Answer 77

there is no genuine disput as to any material fact and the movant is entitled to judgment as a matter of law

then burden moves to non-movant to produce evid to show that there is a genuine issue of material fact for trial.

mot is looked at in the light most favorable to the non-moving party

Question 78

FRCP 4(k) - territorial limits of effective service of process for fedearl district courts

Answer 78

(1)(A) service is summary estalibhses PJ over D who is subject to juris of court of general juris in a state where district court is located

(B) who is a party joined under Rule 14 or 19 and is served within a judicial district of the US not more than 100 miles from where the summons was issued

Question 79

A general verdict with answers requires that

Answer 79

the jury decide which party should prevail and provide answers to Qs on each factual issue.

if the verdict and answers are inconsistent the judge must (1) order a new trial, (2) direct jury to further consider, or (3) enter judgment consistent with answers

Question 80

interrogatories cannot be served on

Answer 80

non parties

Question 81

A defendant may remove a civil action from state court to federal court if the action is

Answer 81

a type over which the district courts of the US have original jurisdiction

Question 82

Removal is automatic once

Answer 82

state court has notice of removal

Question 83

Forum defendant rule

Answer 83

prohibits removal when (1) supp matter juris arises soley from diversity juris and (2) D is a citizen of the state in which case was filed

rule does not apply if removal is proper when subject matter juris arises from fed Q juris

Question 84

political question doctrine

Answer 84

bars action that require courts to resolve issues concerning diplomatic recongintion of foregin gov. However, courts have power to determine interbranch dipsutes involving foreign affairs when they concern the validity of a fed state law

Question 85

Sanctionable offenses

Answer 85

failure to disclose a witness

Question 86

under FRCP 4(g) a minor/legally incompetent D can only be served w/ process by…

Answer 86

following the service rules of the state where service is made

Question 87

general rule for conflict of law issue regarding real property

Answer 87

the applicable law should be determined by COL rules of the state where hte property is located

Question 88

at a final pre-trial conference, a fedearl court judge will issue final pre-trial order with plan for trial. it ca be modifiied by the court only to

Answer 88

prevent manifest injustice

Question 89

transient jurisidction

Answer 89

Burnham v. Superior court of CA held that DP clause of 14A generally permits a state court to exericse juris over a D if he is served w/ process while voluntarily present in the forum state

Question 90

28 USC Section 1391(b), venue is appropriate in

Answer 90

1) a jud district in which any D resides, if all Ds are residents of the state in which the district is lcoated,

2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occured, or

3) if there is no district in which an action may otherwise be brought…any jud district in which any D is subject to the court’s PJ with respect to such action

Question 91

28 USC §1404(a) - change of venue

Answer 91

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought

transfer under § 1404 may be made only to a district in which the action might originally have been brought

Question 92

normally a judge would allow a plaintiff’s original venue choice to prevail where

Answer 92

the facts are closely divided on the issues of convenience and interest of justice

Question 93

forum selection clause is relevant factor favoring a §1404 change of venue motion

Answer 93

even if clause is unenforceable under applicable state law

Question 94

Rule 11 filing

Answer 94

Every pleading, written motion, or other paper (except for discovery requests and responses)
must be signed by an attorney, or by a party if the party is unrepresented. An attorney’s signature on a pleading “certifies that to the best of the person’s knowledge, information,and belief, formed after an inquiry reasonable under the circumstances”

(1) the pleading is not being presented for an improper purpose . . .;
(2) the . . . legal contentions are warranted by existing law or by a nonfrivolous argument for changing existing law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Question 95

Rule 11 Reasonableness Standard

Answer 95

A lawyer who files an inaccurate pleading is not subject to sanctions if the lawyer acted in good faith after making a pre-filing “inquiry” that was “reasonable under the circumstances.”

Reasonableness is judged as of the time the pleading was submitted, and depends on “such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the pleading, motion, or other paper was based on a plausible view of the law; or whether he depended on forwarding counsel or another member of the bar.”

Question 96

Stream of commerce is not sufficient basis to exercise jurisdiction over the manufacturer of a product

Answer 96

/

Question 97

Duty to preserve evidence

Answer 97

When litigation is reasonably anticipated, whether or not it has been commenced, potential
litigants in possession of evidence that may be relevant to that litigation
have a duty to preserve that evidence.

Question 98

Sanctions for failing to take steps to preserve evid

Answer 98

forbidding the party that failed to preserve the information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information and letting the jury draw its own inference, or giving the jury instructions to assist in its evaluation of such evidence or argument

shifting of burden of proof on the relevant issue, judgment against the responsible party, adverse inference instruction

Question 99

A counterclaim is compulsory when it

Answer 99

1) arises from the same transaction or occurence as the opposing party’s claim, and

2) doesnt require adding another party over whom the court cannot acquired juris, or

3) d will lose the right to bring the claim later

Question 100

Failure to bring a compulsory counterclaim results

Answer 100

D must include in her answer to a complaint any claim that the D has against P that arises out of the transaction that’s the subject matter of p’s claim

some courts say bars a party from
bringing a later independent action on that claim while others say it’s a waiver of that claim - either way failure to asset = barred from asserting claim in future litigatio

Question 101

a permissive counterclaim is

Answer 101

one not arising out of the same transaction or occurence and

may be filed but doesnt have to be filed

Question 102

FRCP 65 - preliminary injunction

Answer 102

may be granted only upon notice to the adverse party, and only if the movant “gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.”

The court typically considers four factors for ruling:

(1) the significance of the threat of irreparable harm to the plaintiff if the injunction is not granted,
(2) the balance between this harm and the injury that granting the injunction would inflict on the defendant,
(3) the probability that the plaintiff will succeed on the merits, and
(4) the public interest.

Question 103

work product

Answer 103

any material that is prepared in anticipation of litigation

other party must show substanitial need and undue hardship to get work product

atty’s mental impressions are never discoverable

Question 104

When a court should give leave to amend pleadings

Answer 104

Under Rule 15(a)(2), a district court “should freely give leave [to amend] when justice
so requires

injustice = undue delay, bad faith or dilatory motive, repeated failure to cure defects by amendment, undue prejudice to the party opposing the amendment, or futility of
the amendment.

Question 105

FRCP 15(c) - an amended complaint will “related back” to the date of the og complaint if

Answer 105

1) the same occurence is at issue,
2) the new party recieve notice of the suit within 90 days after the og complaint was filed, and
3) the new party knew or should have known that it would’ve been named but for a mistake about its indentity

Question 106

relation back doctrine allows an amended pleading to assert a new claim after the statute of lims has expired when

Answer 106

1) the applicable statute of lims allows relation back, or

2) the claim arises out of the same conduct or occurrence as the og pleading

Question 107

To challenge an error in jury instruction on appeal, a party generally must have objected to that error at trial. but,

Answer 107

if a party faield to do so, the challenged error can still be reviewed on appeal for plain error (an obvious error that affected a substantial right and the fairness of judicial proceedings)

Question 108

a jury verdict must be…

Answer 108

unanimous and returned by a jury of at least 6 (but not more than 12) jurors unless the parties stipulate otherwise

Question 109

mutual issue preclusion

Answer 109

allows parties from the first action to assert issue preclusion in the second action

Question 110

nonmutual issue preclusion

Answer 110

allows non parties from the first action to assert issue preclusion in the second action

allows a party to invoke collateral estoppel against a party who litigated and lost on an issue in a prior action

Question 111

___ analysis is used when it is unclear if an issue is procedural or substantive and no direct fed law applies

Answer 111

erie

Question 112

under erie, state law applies if

Answer 112

1) it is outcome determiniative - ie, forum shoppoing or inequtiable admiinstration of the laws wuld result if it is not applied, and

2) there is no countervailing fed policy interest

Question 113

state substantive law includes

Answer 113

any choice of law rules that a state court woul apply

elements of claim/defense

statute of lims

burden of proof

Question 114

procedural law includes

Answer 114

filing deadlines,
court rules/procedures,
discovery practices,
rules of evid

Question 115

Klaxon doctrine - a fed court sitting in diversity must apply the choice of law approach

Answer 115

prevailing in the state where it sits

Question 116

a fed court sitting in diversity must generally apply state law to substanitve issues. however, fed common law governs substantive issues in the rare instance when

Answer 116

a uniquely federal interest signifcantly conflicts w/ the operation of state law

Question 117

Following a § 1404 transfer, the transferee court must apply

Answer 117

the same law to the case as would have been applied by the transferor court

Question 118

remittitur

Answer 118

d’s request to reduce jury award of excessive damages

if GR then P can chose either 1) reduction in damages or 2) new trial on damagesa

Question 119

additur

Answer 119

p’s request to increase jury award of inadequate damages

*never allowed in fed court

Question 120

vol dismissals by p generally are

Answer 120

without prej

exception: if p vol dismisses a case twice, the second dm is w/ prej and p cannot refiled the lawsuit or one that arises out of the same facts

Question 121

choice of law provisions in k

Answer 121

generally law stated in the k will apply unless

1) chosen state has no substantial relationship to the parites or the transaction and there is no other reasonable basis for the parties choice; or

2) application of the law of the chosen state in the determination of the particular issue and whcicjh under the most signficant relationship test would be the state of the applicable law in the absence of an effective choice of law by the parties

Question 122

conflict of law for tort claim

Answer 122

state w/ the most significant relationship to the occurrence and the parties

1) place where injury occurred,
2) place where conduct causing the injury occurred;
3) domicile, residence, nationality, place of incorp, or PPOB, and
4) the place where the relationship between parties is centered (if any)