Civ Pro

Question 1

What amount of notice is necessary to proceed with a default judgment?

Answer 1

At least seven days before hearing on the map

Question 2

Mutual assent can be manifested by written or spoken words or by conduct. Written or spoken words create what kind of contract? and conduct creates. What kind of contract?

Answer 2

Written or spoken words creates a EXPRESS contract

CONDUCT creates and implied in fact contract

Question 3

Under Federal Rule of Civil Procedure 60(b)(5), a party may file a motion within a reasonable time to obtain relief from a judgment that

Answer 3

1) has been satisfied, released, or discharged
2) is based on an earlier judgment that has been reversed or vacated, OR
3) will violate equity if applied prospectively.

Question 4

Under Rule 60(b), if a judgment was based on facts or law that have significantly changed since the court issued it - what part of Rule 60(b) makes the reasonable time frame not applicable?

Answer 4

Part 3 - “will violate equity if applied prospectively”

Question 5

A default judgment may be entered by the clerk of the court unless:

Answer 5

1) the defendant has appeared
2) the defendant is legally incompetent or a minor
3) the plaintiff’s claim is not for a sum certain or a sum that can be made certain by calculation, or
4) the plaintiff failed to include an affidavit establishing the amount due

Question 6

Under claim preclusion (res judicata), a valid final judgment on the merits precludes identical parties from relitigating identical claims. When are claims identical?

Answer 6

1) they arise out of the same transaction, occurrence, or series thereof, AND
2) could have been raised in the first action

Question 7

When does federal question jurisdiction exist when a cause of action is based on state law?

Answer 7

when the state-law claim necessarily states a substantial and disputed federal issue that a federal court could adjudicate without disturbing the balance of federal and state judicial responsibilities

Question 8

Are attorney’s fees a procedural or substantive issue?

Answer 8

Procedural

Question 9

When an action is based solely on diversity jurisdiction and some attempts to intervene what must they satisfy

Answer 9

They must satisfy diversity jurisdiction

Question 10

Supplement jurisdiction does not apply to claims of a person

Answer 10

seeking to intervene either as of right or permissively in a case based exclusively on diveristy jurisdiction if the exercise of jurisdiction would be inconsistent with the requirements of diveristy

Question 11

In a case arising under diversity, is privilege governed by state or federal law?

Answer 11

State

Question 12

Attorney’s may rely on evidentiary support provided by their clients if

Answer 12

an objectively reasonable attorney would do so

Question 13

Define

Crossclaim

Answer 13

A crossclaim is a claim for relief asserted against a copart that arises from the same transaction or occurence as another claim in the lawsuit

Question 14

If a crossclaim asserts merely a defense - is it proper?

Answer 14

NOPE

Question 15

A party may nove for judgment on the pleadings to dismiss after the pleadings have closed. When do the pleadings close?

Answer 15

Generally, the pleadings have closed once all required pleadings have been filed - typically this is after the complaint and answer.

If party asserts a counterclaim, crossclaim, or third-party claim, the pleadings do not close until an answer to that claim has been filed.

Fed. R. Civ. P. 12(c)

Question 16

Define

Judgment as a matter of Law (JMOL)

Answer 16

a request that the court enter a judgment in favor of the movant because the evidence is legally insufficent for a reasonable jury to find in the nonmovant’s favor.

this means if the plaintiff failed to present sufficent evidence at trial for a reasonable jury to issue a verdict in favor of the plaintiff then the court should dismiss the claim

Question 17

Can a renewed JMOL motion deadline be extended by the court or by stipulation of the parties?

Answer 17

NO

Fed. R. Civ. P. 50 and 6(b)

Question 18

A motion for extraordinary relief from a final judgment will be granted if that judgment is void. A judgment is void when

Answer 18

the court that entered the judgment
1) did not have subject-matter jurisdiction
2) lacked personal jurisdiction
3) violated due process

Question 19

A federal court sitting in diveristy must apply state law to substantive issues and federal law to procedural issues. If it is unclear whether the issue is substantive or procedural then what does the court consider?

Answer 19

1) does a federal law directly addresses the issue, then
2) if federal law applies if the law is arguably procedural and does not modify a substantive right

Question 20

At the final pretrial conference, a federal court judg will issue a final pretrial order that sets forth a plain for trial. Under what basis will the court modify that order?

Answer 20

the court MAY modify this order only to prevent manifest injustice

Question 21

What is the standard the court should apply when ruling on a renewed Judgement as a matter of law motion?

Answer 21

Whether there is legally sufficent evidence to support the verdict

Question 22

In a diveristy jurisdiction action with one plaintiff and one defendant can unrelated claims be aggregated?

Answer 22

Yes

Question 23

Do you have to have personal jursidiction to transfer venue?

Answer 23

No, if a court finds that it is in the interest of justice the Court can transfer the case to any jurisdiction in which venue would be proper even if it does not have personal jurisdiction over the claim

Question 24

When an action is dismissed due to failure to timely serve process - is it dismised with or without prejudice?

Answer 24

without prejudice

Question 25

When should a request for a jury trial be made?

Answer 25

within 14 days after service of the last pleading directed to the issue that is sought to be tried

Question 26

What standard of review is used for a choice of law decision?

Answer 26

De novo

Question 27

Is it proper to grant a motion for a new trial for newly discovered evidence if the evidence existed at the time of trial but was excusably overlook?

Answer 27

Yes, it it also would likely have altered the outcome of the trial

Question 28

In determing state’s substantive law in a diversity action, the U.S. federal district court will be bound by the rulings of the state’s highest court. If the state’s highest court has not addressed the issue - what does the federal court determine?

Answer 28

the federal court must try and determine how the state’s highest court would rule on the issue if it did consider it.

Question 29

When the United States is a defendant in a civil action, service must be made on

Answer 29

both the U.S. Attorney General and the U.S. attorney for the district in which the action has been filed

Question 30

May the court, on its own initiative, order a new trial for any reason that would justify granting a new trial?

Answer 30

Yes.

However, the court must specify the reasons for the new trial in its order.

Question 31

Can a federal district court review a remand order if remand was for subject-matter jurisdiction or procedural error?

Answer 31

NO, cannot be appealed absent limited exceptions

Question 32

Issue preclusion can be asserted by parties to the first action (mutual) OR by nonparties to the first action (nonmutual) against parties to the first action.

If the first action was decided by a state court - does federal or state issue-preclusion rules apply?

Answer 32

States

Question 33

What is remitter and Additur

Answer 33

Remittitur is a request to Reduce excessive damages
Additur request to increase inadequate damages

Question 34

Can the parties stipulate to a jury that is less than 6 people or more than 12?

Answer 34

no

Question 36

A minor or legally incompetent defendant MUST be served in accordance with the service of process rules of what state?

Answer 36

The state where service is made

Question 37

Does a notice appeal need to be filed with the appellate court and district court clerk?

Answer 37

No, only the district court clerk

Question 38

For the purposes of issue preclusion, when an issue essential?

Answer 38

when it provided a clear and necessary component of the ultimate decision, and an issue that was contrary to the final judgment is not essential

Question 39

When must a clerk enter a default judgment? (even without notice to the persont he judgment is being entered against)

Answer 39

1) the plaintiffs claim is for a sum certain (specified, set, or can be calculated)
2) P’s default affidavit includes/establishes amount due
3) D’s failed ot appear, and
4) not legally incompetent or a minor

Question 40

What must be included in a motion to compel?

Answer 40

a certification that the movant has, in good faith, conferred or attempted to confer with the noncompliant party or nonparty

Question 41

What is a final equitable relief class?

Answer 41

when injuctive or declaratory relief is appriopriate because the opposing party’s actions generally apply to the whole class

Question 42

Are incidental and individualized monetary damages valid in final equitable relief classes?

Answer 42

Incidental - valid
individualized - not valid

Why? because of due process

Question 43

In a JMOL motion, can the court consider credibility of the witnesses or evidence?

Answer 43

No