Civ Pro

Question 1

Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement. If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose

Answer 1

the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action. Dismissal of an action is a severe sanction, and generally it is appropriate only when a party’s conduct is serious, repeated, extreme, and otherwise inexcusable.

Question 2

When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, the court may… (3 options)

Answer 2

(i) approve a judgment that is consistent with the answers, notwithstanding the general verdict, (ii) direct the jury to reconsider its answers and verdict, or (iii) order a new trial.

Question 3

Where is venue proper ?

Answer 3

Venue is proper in a judicial district in which any defendant resides or in a judicial district in which a substantial part of the events or omissions on which the claim is based occurred.

Question 4

In order for a federal district court to transfer an action to another federal district court for the convenience of the parties and witnesses and in the interest of justice, the transferor court must determine that …

Answer 4

the action could have been initiated in the transferee court or that all parties consent to the transfer.

Question 5

When a defendant files a pre-answer motion under Rule 12, such as a motion to dismiss for lack of personal jurisdiction, the defendant has ___ days after receiving notice of the court’s decision on this motion to file its answer.

Answer 5

14

Question 6

If a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until …

Answer 6

60 days after the request was sent, or 90 days after it was sent to a defendant outside a judicial district of the United States.

Question 7

When may the defendant in a civil action filed in state court have the right to remove it to the district court for the district in which the state court action was filed?

Answer 7

as long as the civil action is within the original jurisdiction of a U.S. district court

Question 8

When a federal district court has jurisdiction over a claim, the court can assert supplemental jurisdiction over additional claims over which the court would not independently have subject matter jurisdiction if they arise out of…

Answer 8

a “common nucleus of operative fact.”

Question 9

If the defendant agrees to waive service, what will be deemed the date of service of process?

Answer 9

the date on which the plaintiff files the waiver form with the court

Question 10

In an action filed under the Federal Tort Claims Act, venue is proper where?

Answer 10

either in the judicial district where the plaintiff resides or in the judicial district where the act or omission occurred.

Question 11

What juror misconduct during voir dire is necessary for a new trial on appeal?

Answer 11

To obtain a new trial, a party must demonstrate that a juror failed to answer honestly a material question on voir dire, and show that a proper response would have provided a valid basis for a challenge for cause.

Question 12

In order to file a federal statutory interpleader action, the stakeholder must be willing to either …

Answer 12

deposit the property at issue with the court or to post a bond in an appropriate amount.

Question 13

What happens when there is a forum selection clause in a contract?

Answer 13

when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. Furthermore, the Supreme Court held that a forum selection clause should be given “controlling weight in all but the most exceptional cases.”

Question 14

When does issue preclusion apply?

Answer 14

Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action. Other elements necessary for issue preclusion to apply are that (i) the issue sought to be precluded must be the same as that involved in the prior action; (ii) the issue must have been actually litigated in the prior action; (iii) the issue must have been determined by a valid and binding final judgment; and (iv) the determination of the issue must have been essential to the prior judgment.

Question 15

Under the federal rules, service may be made by (2 ways)

Answer 15

following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located (the forum state) or in the state where service is made.

Question 16

A TRO can be issued without notice to the adverse party if the moving party can show…

Answer 16

(1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and (2) the efforts made at giving notice and the reason why notice should not be required. Additionally, the party seeking a TRO must post a bond to cover the costs in the event the TRO is issued wrongfully.

Question 17

When are documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative subject to discovery?

Answer 17

if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

Question 18

Under Rule 24, a nonparty has the right to intervene in an action when, upon timely motion…

Answer 18

(1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.

Question 19

a jury trial demand must be served within …

Answer 19

14 days after service of the last pleading directed to the issue that is sought to be tried by a jury.

Question 20

Persons may join in one action as plaintiffs if (2 things)

Answer 20

(i) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (ii) any question of law or fact common to all plaintiffs will arise in the action.

Question 21

A plaintiff may assert related claims against an impleaded party when …

Answer 21

the claim falls under the court’s jurisdiction

Question 22

For a class action that is certified under Rule 23(b)(1) or (2) what notice is necessary/appropriate?

Answer 22

is at the discretion of the court. The court may order that appropriate notice be given, which often takes the form of publication notice.

Question 23

When venue is transferred, what law applies?

Answer 23

Generally, if the venue of an action is transferred when the original venue is proper (as discussed above), the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law. However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the choice-of-law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.

Question 24

When does claim preclusion apply?

Answer 24

For claim preclusion to apply, the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action. Because application of claim preclusion is limited to the parties (or their privies), a similar action by a different party would not be precluded.

Question 25

A motion for a judgment on the pleadings may not be pursued until…

Answer 25

after the defendant has answered the complaint.

Question 26

If no responsive pleading is required, a party may amend a pleading once as of right within __ days.

Answer 26

21

Question 27

If a plaintiff could easily have joined in the earlier action, should a trial judge allow the use of offensive collateral estoppel?

Answer 27

No

Question 28

Under Rule 36, a party may serve upon any other party a written request for the admission of any relevant, non-privileged matters discoverable under Rule 26. A matter will be admitted unless, within ____ days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney

Answer 28

30

Question 29

Service generally may be made within the state in which the federal district court sits by (3 things)

Answer 29

(i) personally serving the summons and complaint on the defendant, (ii) leaving the summons and complaint at the defendant’s usual place of abode with a person of suitable age and discretion who resides there, or (iii) delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.

Question 30

A federal action based on interpleader pursuant to Rule 22 requires …

Answer 30

that the general rules for subject matter jurisdiction be satisfied. For diversity jurisdiction, the citizenship of the party bringing the action must be completely diverse from that of the claimants and the statutory amount in controversy must be met. The claimants need not be diverse among themselves.

Question 31

Under the collateral-order doctrine, a court of appeals has discretion to hear and rule on a district court order if it (3 things)

Answer 31

(i) conclusively determines the disputed question, (ii) resolves an important issue that is completely separate from the merits of the action, and (iii) is effectively unreviewable on appeal from a final judgment.

Question 32

Due process is met if the notice is …

Answer 32

Due process is met if the notice is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of an action and afford them an opportunity to present their objections. If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through in-person delivery, registered mail, return receipt requested, or some other means likely to notify the particular individual is required. Notice by publication under such circumstances would not be sufficient.

Question 33

A party is considered necessary if the party’s absence …

Answer 33

would leave the existing parties subject to a substantial risk of multiple or inconsistent obligations.

Question 34

How should a court assess sanctions for failure to preserve electronically stored information?

Answer 34

In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.

The court may: (i) upon finding prejudice to another party, order measures no greater than necessary to cure the prejudice, or (ii) upon finding that the party acted with the intent to deprive another party of the information, may presume the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable, or dismiss the action or enter a default judgment.

Question 35

When a federal court has jurisdiction over a claim arising under federal law, the court may exercise supplemental jurisdiction over a state-law claim __________ even though the federal court would not otherwise have subject-matter jurisdiction over the state-law claim

Answer 35

that arises out of a “common nucleus of operative fact,”

Question 36

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that:

Answer 36

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to suffer irreparable harm in the absence of relief; (3) the balance of equities is in his favor; and (4) the injunction is in the best interest of the public. Additionally, the party seeking the preliminary injunction must provide a bond to cover the costs in the event the preliminary injunction is issued wrongfully.

Question 37

The Rules provide that an answer may state as a cross-claim any claim against a co-defendant, as long as…

Answer 37

the cross-claim arises out of the same event that is the subject of the original claim.

Question 38

The elements of a claim or defense, statutes of limitations, and burdens of proof are all considered ____ for Erie purposes

Answer 38

substantive

Question 39

In general, for PJ, due process requirements are satisfied if the nonresident defendant …

Answer 39

has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

Question 40

For in personam jurisdiction, a defendant’s contacts with a forum state must be …

Answer 40

purposeful and substantial, such that the defendant should reasonably anticipate being taken to court there.

Question 41

A district court has discretion to decline to exercise supplemental jurisdiction (in 3 cases…)

Answer 41

(i) over claims that raise new or complex state law issues or that substantially predominate over claims within original federal jurisdiction; (ii) when the claims within the court’s original jurisdiction are dismissed; or (iii) if there are other compelling reasons for declining jurisdiction in exceptional circumstances.

Question 42

Generally, the Defendant’s answer must state any avoidance or affirmative defense that the defendant has, or that is deemed waived. However, the Rules also provide that pleadings can and should be amended (when?)

Answer 42

by leave of the court when justice requires it. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party.

Question 43

For venue purposes, business entities are deemed to reside in any judicial district

Answer 43

in which they are subject to personal jurisdiction with respect to the civil action in question.