Civ Pro I Final

Question 1

Timeline

Answer 1

!filing of complaint!–!answer!——–discovery———–!trial!—

Question 2

Commencement of action: FRCP 3

Answer 2

done by filing a complaint with the court

Question 3

Summons (due process): FRCP 4

Answer 3

erved along with a copy of the complaint; function is to inform the defendant of the action pending against him

Question 4

if D does not waive service of summons, he gets…

Answer 4

just 20 d. to answer, and costs of service (inc. atty fees of any motion required to collect costs) will be imposed on D unless can show good cause for the failure

Question 5

If D does waive service, he has…

Answer 5

until 60 d. after date on which request for waiver was sent to file answer to complaint (90 d. outside US)

Question 6

Who effects service? 4c2

Answer 6

any person not a party and at least 18 y.o.; P may request service by US marshal, etc to be appointed by court

Question 7

4e: where no waiver obtained, service can be effected by choice of two methods…

Answer 7

1. Pursuant to law of state where DC is located OR law of state where service is effected
2. By delivery to individual personally, or by leaving copies at individual’ s house with person of suitable age and discretion; or by delivering to authorized agent

Question 8

Proof of Service 4l:

Answer 8

If service not waived, person effecting service should make proof of service. Affidavit if not a US marshal/dep. Marshal. Failure to make proof of service does not affect the validity of the service

Question 9

Greene v. Lindsey (1982):

Answer 9

Service is not “reasonably calculated” under the circumstances to effect notice when it is posted on tenants’ doors in public housing project violates due process under 14th Amendment (the right to be heard).

Question 10

Code Pleading:

Answer 10

“just the facts,” where just the facts includes articulation of: (1) duty one person owes another, (2) violation of that duty, (3) consequences associated with that violation (4) claim for relief.

Question 11

four elements of Claim of negligence

Answer 11

●duty of reasonable care
●violation is negligence = unreasonable conduct
●accident is consequence
●damage

Question 12

Gillispie v. Goodyear Service Stores

Answer 12

Application of Code pleading: Pleading not specific enough in facts (P states no facts, but “mere conclusions”) to allow either judge to understand whether there is a case, or to allow Defendant to prepare a case.

Question 13

Pleading must include: FRCP 8a

Answer 13

1. short, plain statement of the grounds on which court’s jurisdiction depends (unless court already has jurisdiction and no new grounds needed);
2. short, plain statement showing the pleader is entitled to relief
3. demand for judgment for the relief pleader seeks (inc. relief in alternative or multiple types of relief)
4. signature 11aby at least one attorney or the party if not represented (+ name, address, phone number, if any) – unsigned paper will be stricken unless omission of the signature is promptly corrected

Question 14

FRCP 8e1

Answer 14

Statements in pleading shall be simple, concise, direct; no technical forms required

Question 15

Pleading in the alternative: Multiple claims or defenses, alternately or hypothetically, can be made: 8e2

Answer 15

1. either in one count or in separate counts
2. the insufficiency of one or more of an alternative statement does not affect the sufficiency of other statements in the pleading
3. ok for claims/defenses to be inconsistent (inc. if based on legal, equitable, or maritime grounds

Question 16

8f

Answer 16

Pleadings shall be construed so as to do substantial justice.

Question 17

Rannals v. S. E. Nichols, Inc. (1979)

Answer 17

(jeans w/defective zipper/malicious prosecution) District court erred in finding that Rannals failed to make a good pleading because she does not allege sufficient facts; the goal of the rules is just that a short and plain statement showing that pleader is entitled to relief is set forth – there is no need to distinguish whether an item is fact, law, and evidence.

Question 18

Supreme Court said all needed for pleading was…

Answer 18

notice pleading under rule 8

Question 19

Amendment of pleading: FRCP 15a

Answer 19

leave to amend freely given by crts when justice so requires and Can amend pleadings to get them to conform to the evidence

Question 20

Beeck v. Aquaslide‘ N’ Dive Corp. (1977)

Answer 20

8th Cir. App. court affirmed allowing amendment where it was discovered that slide was not manufactured by company being sued b/c leave to amend should be freely given; slide manufacturer obviously relevant to the litigation; and prejudicing of P – even though statute of limitations had run - was insufficient to bar amending.

Question 21

“Relation back” doctrine 15c

Answer 21

llow amendment where it relates back to the original pleading (gets around Statute of Limitations):

Question 22

How to get around Statute of Limitations:

Answer 22

i.according to the law that provides the applicable statute of limitations, or ii.where the claim asserted in amended pleading arouse out of same conduct, transaction, or occurrence set forth in the original pleading (the same nucleus of facts as first pleading depends on?), or negligence

Question 23

Bonerb v. Richard J. Caron Foundation (1994):

Answer 23

Court held that where P sought to amend pleading with claim of counseling malpractice, it did “relate back” to the claim in the original pleading of injury due to negligence of rehab. program, and so allowed the amendment

Question 24

Moore v. Baker (1993):

Answer 24

11th Circuit held that where P sought to amend pleading with claim of negligence in surgery and post-op care, where original pleading claimed violation of informed consent by failure to advise of alternative therapy, the amendment sought did not relate back because did not pertain to the same (pre-operation) transaction.

Question 25

Supplemental pleadings can be made on motion 15d

Answer 25

court, with reasonable notice and on just terms, will allow party to serve supplemental pleading relating to transactions/ occurrences/ events that have taken place since the original pleading – even where the original pleading is defective in its claim for relief or defense.

Question 26

Response to Pleading

Answer 26

Responds with answer or pre-answer motion (pre-answer only under 12b).

Question 27

counterclaim

Answer 27

“back at you”– a complaint against first pleader

Question 28

cross-claim

Answer 28

from one D against another D

Question 29

12a

Answer 29

within 20 d. after service of summons/complaint, or if waived service, within 60 d. after date when request for waiver was sent

Question 30

12a2

Answer 30

within 20 d. when answering cross-claim, counterclaim, and typically where reply is ordered by the court

Question 31

Service of motion under rule 12: 12a4

Answer 31

1. if court denies motion or postpones its disposition, responsive pleading must be served w/i 10 d. of notice of court’ s action, or
2. if court grants motion for more definite statement, responsive pleading w/in 10 d. of service of more definite statement

Question 32

Possible pre-answer motions 12b

Answer 32

Waived if not presented in first response (12(g),(h)(1))

NOT Waived if not presented in first response (12 (h)(2,3))

Question 33

NOT Waived if not presented in first response (12 (h)(2,3))…

Answer 33

1. lack of jurisdiction over subject matter
2. lack of jurisdiction over person
3. improper venue
4. insufficiency of process
5. insufficiency of service of process
6. failure to state a claim upon which relief can be granted (demurrer)
7. failure to join a party under Rule 19

Question 34

where the pleading of P doesn’ t require a responsive pleading from D…

Answer 34

D can assert at trial any defense in law or fact to the claim.

Question 35

Haddle v. Garrison (1998)

Answer 35

Success of 12(b)(6) depends on court interpretation of the law. District Court granted 12(b)(6) motion to dismiss for failure to state a claim; Supreme Court: in looking at the statute, found it was directed more at conspiracy to intimidate or retaliate against witnesses than protection of witness property Haddle had stated a claim on which relief could be granted under 42 USC § 1985(2).

Question 36

12e

Answer 36

motion for more definite statement iv.can be made before making a responsive pleading where responsive pleading is permitted and the original pleading is so vague or ambiguous that party can’ t reasonably required to frame a response

Question 37

12e conditions

Answer 37

1. Motion must point out the defects complained of and the details desired
2. If motion is granted and other party does not furnish more definite statement within 10 d. after notice of court order or w/I such other time as court fixes, court may strike down the original pleading or make an order as it sees fit
3. Stops the clock

Question 38

Motion to Strike 12f

Answer 38

v. court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter upon motion by party before its responsive pleading; or upon motion within 20 d. after service of original pleading where no responsive pleading is permitted; or when court initiates the motion.
vi. >fill in 12c motion for judgment

Question 39

Form of denials 8b: defenses to each claim of the other party shall be made

Answer 39

1. in plain terms
2. by admitting or denying the averments of the other party
3. where not enough information to admit or deny, state so = effect of denial
4. only deny what is untrue, admit everything else

Question 40

Zielinski v. Philadelphia Piers, Inc. (1956)

Answer 40

holding that where the P’ s pleading contains a mistake (owner of forklift involved in accident), D does not have a right to foster the mistaken belief by acts of omission (by denying a count of pleading that was essentially right, just wrong on the identity of owner of forklift)

Question 41

Affirmative defenses 8c

Answer 41

a defense that admits allegations of Plaintiff but says there is some reason why the allegations still do not add up to sustain a legal action; in answering preceding pleading, party must set forth affirmative defenses (inc. arbitration, contributory negligence, duress, estoppel, illegality, laches, statute of limitations, waiver, qualified immunity, etc.)

Question 42

Layman v. Southwestern Bell Telephone Co. (1977)

Answer 42

must be plead in answer to P’ s pleading (can’ t be brought up later if not plead) – holding that easement as affirmative defense could not be brought up where it had not be pleaded

Question 43

FRCP 11

Answer 43

Representations to court / Sanctions

Question 44

11b

Answer 44

By presenting pleading, motion, other paper to court, attorney or unrepresented party certifies that, to best of person’ s “knowledge, information and belief,” formed after reasonable inquiry

Question 45

11b2

Answer 45

Claims, defenses, other legal contentions are warranted by existing law or by nonfrivolous argument for extension/modification/reversal of existing law or establishment of new law (~12(b)(6))

Question 46

Religious Technology Center v. Gerbode (1994)

Answer 46

Plaintiff’ s RICO complaint does not pass muster under Rule 11: (b)(2), its claims not warranted by existing law, nor any nonfrivolous argument being made for the extension, modification, reversal of existing law (monetary sanctions then awarded; appropriate b/c case decided, no other way to shape the litigation)

Question 47

11b3:

Answer 47

Allegations and other factual contentions have evidentiary support or are likely to after reasonable opportunity for further investigation/discovery

Question 48

Business Guides v. Chromatic Communications Enterprises (1991):

Answer 48

BG alleged that Chromatic copied from its “seeded” directory, pointing out 10 instances of seeding; District Court clerk discovers 9 out of 10 seeds show no evidence of seeding after all; judge on own initiative uses Rule 11 to send to Magistrate, who sanctions both BG and its counsel for not investigating/having evidentiary support.

Question 49

11c

Answer 49

If court determines 11b has been violated, sanctions may be imposed on attorneys, law firms, or parties who violated/are responsible for violation.

Question 50

To initiate by motion, 11c1A party must

Answer 50

●move separately from other motions
●describe the specific conduct alleged to violate 11b
●[safe harbor provision] not file/present to court unless within 21 days after service of motion the challenged paper/claim/defense/contention /allegation/denial is not withdrawn or corrected
●(expenses and atty fees may be awarded to prevailing party; firm held jointly responsible for violations committed by its employees)

Question 51

For court to initiate sanctions, 11c1B, it

Answer 51

●Enters order describing specific conduct that appears to violate 11b
●Directs attorney/firm/party to show cause why it has not violated 11b

Question 52

Nature of Sanctions 11c2

Answer 52

Limited to what is sufficient to deter repetition of such conduct
May consist of/include
●nonmonetary directives
●order to pay penalty into court
●order directing payment to the movant of some or all atty fees and other expenses incurred as a result of the violation

Question 53

Exceptions to 11c2: 11c2A

Answer 53

No monetary sanctions against represented party for violation of 11b2 (don’ t expect the represented party to know the law).
11c2B no monetary sanctions on court’ s initiative unless court issues order to show cause before vol. dismissal or settlement of claims made by/against party to be sanctioned

Question 54

11c3

Answer 54

When court imposes sanctions, it should describe violating conduct, basis for sanctions.

Question 55

scope:

Answer 55

is any matter not privileged that is relevant to the claim or defense; need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence

Question 56

26b1

Answer 56

●court can order discovery of any matter relevant to the subject matter involved in the action

Question 57

26b2

Answer 57

court can limit the number of depositions, interrogatories; length of depositions, etc and where discovery methods otherwise permitted result in requests that are

○unreasonably cumulative or duplicative, or obtainable from some other more convenient, less burdensome source

○party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought or

○burden/expense of proposed discovery outweighs likely benefit

Question 58

26f

Answer 58

Parties confer on a discovery plan and submit it to the court for approval

Question 59

26a: Automatic disclosure

Answer 59

of certain information to other parties is required (based on information then reasonably available to it, at or w/in 14 days of the discovery conference, unless..

1. who has discoverable information likely to be used by party to support its claims or defenses
2. copy or description of all docs/data comps./tangible things that party has and might use to support its claims/defenses
3. computation of any category of damages, inc. docs on whichcomputation is based
4. insurance agreements that might show liability of an insurance company

Question 60

26a2A and 26a2B

Answer 60

Identity of expert who may be used at trial to present evidence must be disclosed 26a2A; expert’ s report shall be furnished to other parties, (court may say when), but at least 90 days before trial, or if evidence provided by expert is to be used solely to contradict other party’ s evidence on a matter, at least 30 days before trial.

Question 61

Pre–trial disclosures: 26a3

Answer 61

Identity of witnesses and documents party expects to present at trial, and those that party may call/present must be provided to other parties and court before trial.

1. inc. designation of witnesses whose testimony is expected to be by deposition + transcript of pertinent portions
2. approximate identify of each doc./exhibit, separately identifying those which party expects to offer and those which party may offer

Question 62

26a5 Methods for discovering other matter include…

Answer 62

depositions, interrogatories, production of documents/things, permission to enter property for inspection, physical and mental exams, requests for admission

Question 63

26g

Answer 63

All disclosures and discovery requests must be signed by atty (or party) to certify that, to the best of the signer’ s knowledge the disclosure is correct and complete/the discovery requests are consistent with the rules, not done for improper purpose, and not unreasonable or unduly burdensome or expensive.

Question 64

Facts of Interrogatories: FRCP 33

Answer 64

1. crude tool, inexpensive
2. often done early on in discovery
3. problem of having to carefully craft questions
4. good for getting names, sense of other party’ s legal theories

Question 65

Facts of production of documents FRCP 34

Answer 65

biggest potential for abuse

Question 66

Facts on depositions 30 (31,32)

Answer 66

6. good information, opportunity for follow up on the spot
7. very expensive (time, travel, stenographers)
8. in some cases can use depositions in trial itself

Question 67

facts on mental/physical exams 35

Answer 67

9. most intrusive, requires court to sign off

10. usually when mental/physical health put at issue in trial

Question 68

Facts on requests for admissions 36

Answer 68

“more like pleading” than discovery: once something is admitted, the admission is binding and that issue is considered resolved (though there is some room for judge discretion in allowing taking back of wrongly made admissions, as in Aquaslide).

Question 69

26b3: trial preparation materials

Answer 69

documents and tangible things prepared in anticipation of litigation or for trial by/for another party or that party’ s attorney (work product) can’ t be discovered unless there is a showing by party seeking discovery that it has substantial need of the materials, and that it is unable without undue hardship to obtain the equivalent of the materials by other means

Question 70

During discovery, court protects against disclosure of

Answer 70

the mental impressions, conclusions, opinions and legal theories of attorney

Question 71

Hickman v. Taylor (1947)

Answer 71

Where P sought to discover notes from D’ s attorney’ s interviews of witnesses and substance of other interviews that were conducted but not written down, the Supreme Court held that the work product of an attorney cannot be discovered without showing of adequate reasons by the one who would invade the attorney’ s privacy.

Question 72

Test for whether discoverable under 26b3: documents and tangible thing

Answer 72

i. is it otherwise discoverable (relevant and not privileged)? 1.Yes—discoverable
ii. produced in anticipation of litigation 1.yes – discoverable
iii. substantial need or undue hardship 1.yes – discoverable
iv. mental impressions, conclusions, legal theories of party and counsel 1.no – discoverable

Question 73

Policy reasons for 26b3

Answer 73

i. Cumbersome to produce information about oral statements from memory
ii. Where there is no need for work product because could get information another way, shouldn’ t have to turn over
iii. attorney’ s work goes beyond the facts that are discoverable because includes ideas of attorney relating to legal theory, strategy
iv. Concern of two adversaries harassing each other
v. impeachment use when reports conflicts…potential for attorney having to take witness stand
vi. Discovery is about finding out the facts, not the synthesis/analysis/ interpretations/strategies of the facts as produced by the attorney

Question 74

when party withholds materials as privileged under 26b5…

Answer 74

must describe what the materials are in a way that otherparties are able to assess the applicability of privilege protection

Question 75

Protective Orders 26c

Answer 75

where justice requires protection of a party or person from annoyance, embarrassment, oppression, undue burden or expense, court where action is pending or, if matter relates to deposition, court in district where deposition is to be taken, can make a protective order.

Question 76

Protective orders under 26c do what?

Answer 76

a. no discovery or disclosure of the matter
b. disclosure/discovery only on specified terms
c. discovery only by a method of discovery other than that used by seeking party
d. certain matters not be inquired into; or scope be limited
e. discovery conducted w/ no one present except persons designated by court
f. deposition be opened only by order of court (after sealed)
g. trade secret, etc. not be revealed, or only revealed in a specified way
h. parties simultaneously file specified documents enclosed in sealed envelopes

Question 77

26b4

Answer 77

Concerning experts

Question 78

26a2B

Answer 78

Whose opinions may be presented at trial: other party can depose (after a report if report required under

Question 79

26b4B

Answer 79

Whose opinions are NOT expected to be presented at trial: party can’ t discover unless shows exceptional circumstances under which it is impracticable for party to get the facts or opinions by other means.

Question 80

Thompson v. The Haskell Co. (1994)

Answer 80

held that where doctor examined P at the relevant time of the inquiry (10 days after P was fired), it was an exceptional circumstance where the D could not get the same facts or opinions by other means – could not get to the P’ s mental state at the time any other way than through that expert testimony

Question 81

Chiquita International Ltd. V. M/V Bolero Reefer (1994):

Answer 81

Held that where P’ s maritime inspector-expert had examined the vessel and loading gear shortly after vessel arrived, there was no exceptional circumstance under which D could depose the inspector to get to his observations; reasoning that D could have had the vessel inspected then, too; but, any discoverable (factual) information conveyed to the inspector did have to be disclosed to D.

Question 82

26b4C

Answer 82

Where not expected to be presented, court shall require that party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred in obtaining facts and opinions from the expert by the party whose expert it is
In both might be presented/not expected to be presented, party seeking discovery of the expert must pay the expert reasonable fee for time spent in responding to discovery (unless manifest injustice would occur).

Question 83

Where a false certification is made in violation of 26g (complete, correct disclosure/proper, lawful requests), court must…

Answer 83

impose sanction, which may include order to pay amount of the reasonable expenses incurred because of the violation, including attorney fees. 26g3 (in contrast to Rule 11 where court has discretion to impose sanctions or not)

Question 84

Motion for order compelling disclosure or discovery. 37a

Answer 84

Where party fails to make a disclosure or cooperate in discovery and the discovering party has made a good faith effort to secure the disclosure without court action, the discovering party may move for an order compelling disclosure or discovery

Question 85

37a2A

Answer 85

Where party fails to make automatic disclosure under 26a, can move to compel disclosure and for sanctions.

Question 86

37a2B

Answer 86

Where party fails to answer interrogatory or fails to respond to inspection request, or fails to permit inspection, discovering party may move for an order compelling answer, order compelling inspection

Question 87

37a3

Answer 87

Evasive or incomplete disclosure, answer, response is treated as failure to disclose

Question 88

37a4A

Answer 88

where motion to compel is granted or disclosure or requested discovery is provided after the motion was filed, court shall impose sanction on nonmovant of expenses incurred in making the motion, inc. atty. fees. (unless no good faith effort was made before motion; or opposing party’ s nondisclosure was justified, etc.)

Question 89

37a4B

Answer 89

where motion to compel is denied court may enter protective order; and must require moving party to pay other side’ s expenses in opposing the motion (inc. atty. fees) unless court finds making of motion was substantially justified, etc.)

Question 90

37a4C

Answer 90

where motion is granted in part, denied in part may get protective order; expenses can be apportioned among parties

Question 91

37b1

Answer 91

if deponent fails to be sworn in or to answer a question, after being directed to do so by court where depo. Taken, can be considered contempt of court

Question 92

37b2

Answer 92

failure to obey an order to provide or permit discovery court can make orders with big impact on out come of lit. including: A order that matters regarding which order was made be taken as established for purposes of the action; B order refusing to allow disobedient party to support/opposed designated claims or defenses, or prohibiting party from introducing certain matters into evidence; C order striking out pleading/parts of pleading or staying furtherproceedings until order is obeyed; D order treating as contempt of court the failure to obey an order (except order to submit physical/mental exam.)

Question 93

failure to disclose; false/misleading disclosure; refusal to admit 37c1

Answer 93

party can’ t use information it didn’ t disclose as evidence; and court may impose other sanctions including expenses (inc. atty fees).; + court can impose sanctions under 37b2A, B, and C + can inform jury of failure to make disclosure

Question 94

37c2

Answer 94

failure to admit the genuineness or truth of any document or matterif discovering party then proves the genuineness, can seek expenses, and court shall make the order requiring expenses unless (4 factors)

Question 95

41a

Answer 95

Parties can dismiss by Plaintiff filing a stipulation of dismissal signed by all parties who have appeared in the action. The dismissal operates as an adjudication on the merits. (P can also dismiss by filing notice of dismissal before D’ s answer or D’ s summary judgment motion, whichever is first.)

Question 96

Settlement offer can be made…

Answer 96

any time 10 or more d. before start of trial by the Defendant; if P accepts within 10 d., either party can file the offer and notice of acceptance, with proof of service, and the clerk shall enter judgment. 68
●if offer isn’ t accepted, it’ s considered withdrawn and isn’ t admissible except in determining costs

Question 97

Cost shifting

Answer 97

if P doesn’t accept offer and then finally obtains a judgment which is less favorable than the offer was, P must pay his own costs + the D’ s costs incurred after the making of the offer. in certain types of litigation, cost shifting includes attorney fees (civil rights, some public interest)

Question 98

Evans v. Jeff D. (1986)

Answer 98

statute grants attorneys fees to prevailing party in civil rights actions; attorney settles case for what he thinks is best possible outcome for class, but part of settlement is a waiver of the attorney fees; Supreme Court holds that waiver of fees should be allowed as it provides for bargaining power in civil rights violations cases.

Question 99

Kalinauskas v. Wong (1993)

Answer 99

Held that where a prior confidential settlement agreement stipulated that the employee Thomas would not discuss any aspect of her employment other than dates/title of employment, current Plaintiff Kalinauskas could depose Thomas to discover facts relevant to K’ s case (though could not discover the terms of the confidential settlement agreement).

Question 100

Vacatur of judgment?

Answer 100

a successful appeal has the effect of rendering the judgment appealed vacatur; vacated; set aside

Question 101

Generally courts do not assess the merits of the settlement except…

Answer 101

class-action suit, lit. involving minor

Question 102

Preliminary monetary relief 64

Answer 102

go by what the state law where district court is says

Question 103

Fuentes v. Shevin (1972)

Answer 103

Supreme Court struck down as unconstitutional (14th Amendment due process) Florida and Pennsylvania laws allowing for replevin of personal property (stove and phonograph) where statute allowed for the clerk to issue the writ of replevin to seize personal property and for the execution of the writ by the sheriff – with no pre-seizure hearing

Question 104

Preliminary injunctive relief 65

Answer 104

preliminary injunction is not issued without notice to the adverse party

Question 105

65b:

Answer 105

exception to 65a. Temporary restraining order – can be granted w/o notice if

i. immediate and irreparable injury, loss or damage will result to applicant before adverse party can be heard, and
ii. applicant’ s atty certifies to court in writing the efforts, if any, made to give notice and the reasons supporting the claim that notice shouldn’ t be required

Question 106

Temporary restraining orders:

Answer 106

where TRO granted w/o notice, motion for a preliminary injunction must be set down at earliest possible time and party shall proceed with application for a preliminary injunction (if not court dissolves TRO)
TRO expires after 10 days unless within that time court extends for good cause or party restrained consents to extension

Question 107

65d

Answer 107

Order granting injunction/restraining shall set forth reasons for issuance, describe the act or acts sought to be restrained, binds only the parties to the action.

Question 108

William Inglis & Sons Baking Co. v. ITT Continental Baking Co (1976)

Answer 108

Ninth Circuit court of appeals suggested an alternative (less stringent) test for determining whether preliminary injunction should be granted. The district court’ s test was 1.irreparable harm?; (2) likely to prevail? (3) balance of harms – harm to Plaintiff of denying > harm of Defendant granting? (4) is in the public interest?. 9th Circuit suggests “sufficiently serious test”: If harm that may occur to the Plaintiff is sufficiently serious, it is only necessary that there be a fair chance of success on the merits

Question 109

65c

Answer 109

Party must pay a security in applying for restraining order/injunction to secure costs and damages that may be sustained by party who is wrongfully restrained

Question 110

56

Answer 110

Summary Judgment

Question 111

Motion for summary judgment

Answer 111

motion to show that there is no genuine issue as to any material fact and that moving party is entitled to a judgment as a matter of law (unlike 12(b)(6), looks at the proof)56c basically, need affirmative proof of what is in discovery record, have to point to the evidence in the discovery record (but don’t have to have an affidavit)

Question 112

Notion of summary judgment

Answer 112

screen out cases that don’ t need a jury,

Question 113

56a

Answer 113

Plaintiff can file sj motion beginning 20 d. after filing of complaint
○ Defendant can file sj motion any time

Question 114

Form of affidavits 56e

Answer 114

○Made on personal knowledge
○Set forth such facts as would be admissible evidence in trial
○Show affirmatively that affiant is competent to testify to the matters stated
○Quantity of evidence doesn’ t matter – anything on the other side that is admissible and directly deals with material fact is sufficient to show genuine issue of fact.

Question 115

56d

Answer 115

where granting of motion only partially adjudicates the case, judge shall set out facts that appear uncontroversial, deem them established, and direct the trial thereafter accordingly

Question 116

56f

Answer 116

Court can opt to delay ruling on motion or order a continuance where party opposing the motion can’ t produce facts essential to justify opposition for a good reason

Question 117

56g

Answer 117

Where affidavit made in bad faith party pays costs which the bad affidavit caused

Question 118

Celotex Corp. v. Catrett (1986)

Answer 118

revolutionized summary judgment: (case involving exposure of deceased husband to asbestos) Supreme Court held that it is sufficient for Defendant moving for summary judgment to discharge the burden by showing that there is an absence of evidence to support the Plaintiff’ s case; D did not have to affirmatively show that there was no genuine issue of material fact

Question 119

Seventh Amendment and FRCP 38a

Answer 119

Protects the right to a jury trial

Question 120

Jury test:

Answer 120

If within jurisdiction of the common law courts in 1791, the parties have the right to a jury (If not, a court of equity would have heard claim, no right to a jury)

Question 121

38b

Answer 121

party can demand jury trial by serving upon other parties the demand, by including it in a pleading or by putting it in writing any time not later than 10 d. after service of last pleading regarding the matter

Question 122

38c

Answer 122

if party doesn’ t specify which issues it wants tried by jury, it’ s assumed that it wants all tried by jury; if party does specify only some issues it wants tried by jury, other parties can, within 10 d. of service of original demand, serve demand that other issues of fact also go before jury

Question 123

38d

Answer 123

failure to serve and file a demand constitutes a waiver by the party of trial by jury; demand for jury trial cannot be withdrawn without the consent of the parties

Question 124

39

Answer 124

Trial by jury or by the Court

Question 125

39a

Answer 125

where jury trial has been demanded, trial shall be by jury except where parties consent for it not to be or where court finds that there is no right to the jury trial

Question 126

39b

Answer 126

even if party fails to demand a jury in an action where it could’ ve done so, court can order trial by jury on any/all issues

Question 127

39c

Answer 127

n actions NOT triable by jury, court can try an issue with an advisory jury or can order a trial with a jury whose verdict has the same effect as if trial by jury had been a right (not an option where action is against US and statute of US provides for trial w/o jury).

Question 128

Selection of Jurors 47

Answer 128

(a) court can decide to examine potential jurors or to allow parties/attys to do so
(b) peremptory challenges – as allowed by 28 USC § 1870
(c) excuse– court can excuse juror from service during trial/deliberation for good cause

Question 129

Voir dire

Answer 129

exclusion process can include questions to whole pool, to individual jurors; in federal system, it’ s generally judge-driven questions; in some state systems, heavily driven by the lawyers.After voir dire, judge exercises for cause exclusion.

Question 130

Peremptory challenges

Answer 130

, ability to strike juror for any reason or no reason at all; get 3 each in federal context

Question 131

48

Answer 131

Jury should be not less than 6, not more than 12 people. All jurors should participate in verdict unless excused pursuant to 47(c) Unless otherwise stipulated by parties, verdict should be unanimous and no verdict will be taken from jury reduced to fewer than 6 members.

Question 132

8 USC § 1861

Answer 132

• juries will be selected at random from cross section of community in district where court convenes
• all citizens shall have opportunity to be considered for jury service and shall be obliged to serve when summoned for that purpose

Question 133

8 USC § 1862

Answer 133

No citizen shall be excluded from serving on jury in district courts of the US/Court of Int’ l Trade on basis of race, color, religion, sex, national origin, or economic status

Question 134

Peremptory Challenges 28 USC § 1870

Answer 134

in civil cases, each party gets 3 peremptory challenges; where there are several Defendants or Plaintiffs, court may allow additional peremptory challenges and allow them to be exercised jointly or separately Challenges for cause or favor shall be determined by the judge.

Question 135

Edmonson v. Leesville Concrete Co. (1991)

Answer 135

Supreme Court found that use of peremptories to exclude jurors on the basis of race did amount to a Constitutional violation because the jury body/jury selection process is a state action in that the jury is a governmental body; held that a private litigant cannot use peremptory challenges to exclude jurors on basis of race in civil trials (and litigant can assert the 3rd party juror’ s rights on his behalf b/c juror unlikely to be able to do so himself)

Question 136

J.E.B v Alabama (1994)

Answer 136

Supreme Court extended principle of Edmonson to include peremptory strikes based on gender; fifth vote in 5-4 decision was O’ Connor, who limited her concurrence to situation in which the state is a litigant

Question 137

Special verdicts and interrogatories– 49

Answer 137

●court can submit to jury written questions of categorical or brief answer (where it omits some issue in doing this, parties waive right to trial by jury of omitted issue)
●can give jury interrogatories, ask them to both write answers to interoggs. and to render a verdict; then looks at consistency of answers internally, answers/verdict

Question 138

objections 51

Answer 138

●party can file written requests to have court instruct jury on the law in a certain way
●party that doesn’ t object to the court’ s instructions to jury can’ t later assign as error the giving/failure to give an instruction to jury

Question 139

pleading

Answer 139

is the least important because it’ s usually correctable, judge will usually allow amendment; same thing in Defendant’ s answer, generally. (persuasion and production mistakes are fatal, though)

Question 140

persuasion

Answer 140

is showing preponderance of evidence supports the claim -comes into play where jury can’ t find preponderance either for P or D, it must find against the party with burden of persuasion (usually P)

Question 141

production–

Answer 141

requires party to produce sufficient evidence such that a rational trier of fact could find it its favor (justifies case going to jury)

Question 142

Burden of persuasion

Answer 142

defines the extent to which the trier of fact must be convinced of some proposition in order to render a verdict for the party who bears it = preponderance of evidence, more probably than not. This governs the jury’s decision

Question 143

Reid v. San Pedro, Los Angeles & Salt Lake Railroad (1911)

Answer 143

There’ s a burden on plaintiff to show that it’ s more likely than not (to show liability by a preponderance of evidence) that the cow went through the fence hole, not the open gate. Without any evidence other than that the cow was so close to the open gate, there’ s no way a reasonable jury could find this burden had been met; the evidence pointed equally in opposite directions (liability and non-liability of Defendant) =no preponderance.

Question 144

Burden of Production

Answer 144

= requires a party to produce, to find and present evidence, come forward with evidence from which a rational trier of fact could conclude some proposition of material fact. This is a question for the judge to determine whether the question goes before a jury at all

Question 145

Judgment as a matter of law (JML) 50

Answer 145

Where there is no legally sufficient evidentiary basis for a reasonable jury to find for the party on an issue (no rational jury could find for party on an issue), court can determine the issue against that party and may grant a motion for JML (takes case away from the jury!)

Question 146

favorable evidence

Answer 146

only look at what the Plaintiff has presented

Question 147

qualified favorable evidence:

Answer 147

favorable evidence + uncontradicted, unimpeached (and disinterested) evidence including Defendant’ s evidence

a. seems to be the rule favored by federal courts.
b. Has power b/c accounts for what the examination of evidence is about in this context

Question 148

all evidence standard

Answer 148

judge does some resolution of contradiction in evidence; judge looks at all the evidence - timing of motion 50a: before the case is submitted to jury (so, D can move at close of P’ s evidentiary case, or at close of all evidence; P can move at close of all evidence); first sentence of 50b (JNOV) suggests that the motion has to be at the close of all evidence in order for a JNOV motion to brought

Question 149

Directed verdict

Answer 149

if court grants motion for JML at the point of submission (before jury gets the case), it issues a directed verdict

Question 150

Courts shy away from directed verdict for good reason:

Answer 150

Courts prefer not to interfere with juries, so best is to let the case go to the jury first, then rule on jmol. This is preferred since (a) reversal of a directed verdict = whole new trial, but reversal of a jml = reinstate verdict; (b) if we have faith in juries, there’ s a good chance they’ ll get it right

Question 151

Pennsylvania Railroad v. Chamberlain (1933)

Answer 151

brakeman in RR yard; falls off and is killed (crash?); only witness for P doesn’ t say much) Where no substantial support in the evidence for P’ s claim means a verdict in his favor would rest upon only speculation and conjecture (burden of production hasn’t been met), trial court was correct in issuing directed verdict for the Defendant).+ courts don’t consider witness credibility in directing JML

Question 152

JNOV

Answer 152

the presiding judge in a civil jury trial may overrule the decision of a jury and reverse or amend their verdict. In literal terms, the judge enters a verdict notwithstanding the jury findings

Question 153

Court ruling on renewed motion for JML

Answer 153

can allow judgment to stand; order new trial; or direct entry of JML = judgment notwithstanding verdict (JNOV)

Question 154

59– case goes to a new jury

Answer 154

Standard: verdict is supportable, but against the clear weight of evidence> Where there is some amount of evidence that some reasonable jury could find either way, but weight of evidence favors one side, judge can order new trial by a new jury;

Question 155

two instances when courts have traditionally granted new trials:

Answer 155

1. Procedural errors●evidence admitted or excluded where shouldn’ t have been ●juror behavior ●> standard of review is de novo (b/c it’ s issues of law)
2. Verdict itself reflects a problem– the result is wrong ●doesn’ t make sense ●is against the great weight of the evidence ●> standard of review has moved from unreviewable to abuse of discretion

Question 156

On appeal, If the relief sought is same for both claim won on and other claim…

Answer 156

no appeal will lie

Question 157

On appeal, If the rejected claim would have entitled party to more or different relief,

Answer 157

then appeal lies

Question 158

apples and waivers

Answer 158

waiver (applies also to cross-appeals)
○party must present to the trial court the contentions on which it wants rulings.
○Failure to do so results in waiver of the contention (i.e., cannot bring it up in an appeal later on)

Question 159

exceptions to waivers of appeals

Answer 159

■where there has been a change in the law, or a wide reaching decision
■“plain error” rule: where some error seriously affects the fairness, integrity or reputation of judicial proceedings (appellate courts assume some degree of responsibility for assuring the correctness of the outcome, not just the fairness to the parties)
■jurisdictional questions (one issue that court is required to raise on its own is subject matter jurisdiction, and that can happen at appeals court by either parties or court)
■issues entangled w/ other issues

Question 160

Final Judgment Rule: 28 USC § 1291

Answer 160

appeals lie only from final decisions of the district courts; a final decision “is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment” Catlin v. US

Question 161

Interlocutory decisions S1292

Answer 161

1.Where an injunction is granted or denied § 1292a (not discretionary) 2.Where the district court judge certifies that there is a controlling question of law§ 1292band that (discretionary)

Question 162

54b

Answer 162

Judgment upon multiple claims/involving multiple parties. Where court directs entry of final judgment as to one or more but fewer than all of the claims or parties, only on express determination that there is no just reason for delay and upon an express direction for then entry of judgment.

Question 163

Collateral Order Doctrine (court-made law)

Answer 163

treats the orders as final and separate from case on the merits (not discretionary but some flexibility in application)

Question 164

4 requirements for Collateral Order Doctrine.

Answer 164

conclusively determines the collateral rights 2.an important question 3.decision is separate from merits 4.effectively unreviewable later on

Question 165

Writ of Mandamus

Answer 165

in a separate original proceeding, Court of Appeals that issues the writ orders a public official (the. lower judge) to perform an act required by law - often available where judge has denied a jury trial, but used sparingly

Question 166

De novo standard of review on appeal

Answer 166

he most straightforward: Court of Appeals starts fresh and asks what is the right answer? how do we apply the law? (but uses trial court’ s evidentiary record); notion that there is a right/wrong answer when court applies this standard
●judgment as a matter of law
●summary judgment

Question 167

Abuse of discretion standard of review on appeal

Answer 167

trial court has discretion in its decision making. Appellate court asks if trial court’ s decision is within discretion.
●Review of discretionary standards – e.g. new trial
●an encouraging standard, gives some deference to trial court

Question 168

Clearly erroneous standard of review on appeal

Answer 168

52a, Review of whether fact finding process was done correctly: judges fact-find even where there is a jury (challenge to peremptory; determination whether inquiry is reasonable under rule 11). (fact-finding of judges can be of all facts in case (where no jury), or a smaller subset of the facts)

Question 169

61

Answer 169

Harmless error is not grounds for granting new trial, setting aside verdict, etc. unless court finds there is harm, i.e., that the error is likely to have changed the verdict.

Question 170

Rule 8 (a): A pleading shall contain:

Answer 170

(1) short and plain statement of grounds for jurisdiction,
(2) a short and plain claim showing that plaintiff is entitled to relief, and
(3) demand for judgment pleader seeks.

Question 171

Functions of notice pleading

Answer 171

i. Permit the other party to file a responsive answer, prepare a defense, and see if preclusion applies.
3ii. Sharpen the issues and confine discovery.

Question 172

Form of Denial

Answer 172

i. A respondent must admit or deny each allegation in the complaint

Question 173

Affirmative Defenses – Rule 8(c)

Answer 173

i. The answer must include affirmative defenses. Courts correctly construe mistakenly labeled defenses

Question 174

Multiples Claims/Defenses – Rule 8(d)

Answer 174

i. Parties can plead as many claims and defenses as they want, regardless of consistency.

Question 175

Pleading Deficiencies – Rule 8(e)

Answer 175

i. Pleadings are construed so as to do justice

Question 176

Higher Pleading Standards – Rule 9

Answer 176

Exceptions to rule 8(a)

i. Higher pleading standards for complaints of fraud, mistake, securities fraud, libel, slander, and defamation.

Question 177

Replies – Rule 7(a)

Answer 177

Plaintiff does not have to file a reply to an answer unless ordered by the court.

Question 178

Pre-Answer Motions – Rule 12(b)

Answer 178

a. Allows defendant to make certain defenses by motion prior to filing and answer. No demurrer in federal law.
b. If the court grants the motion, P will usually be granted leave to amend.
c. Only one pre-answer motion is allowed.

Question 179

Rule 12(g)-(h)

Answer 179

Waiving Pre-Answer Motions –

Question 180

Rule 12 motions may be combined with…

Answer 180

other Rule 12 motions.

Question 181

If the party makes omits one of the 12(b) defenses, then…

Answer 181

it is waived and can’t be raised later.

Question 182

Motions not waived can be raised…

Answer 182

in pleadings, a motion for judgment on the pleading (Rule 12(c)), or at trial.

Question 183

Courts normally give the nonmovant a chance to amend a defective pleading. True or false.

Answer 183

True

Question 184

Lack of subject-matter jurisdiction can be raised at what time?

Answer 184

any time

Question 185

Motion for Judgment on the Pleadings – Rule 12(c)…

Answer 185

a. Must be made early so as not to delay trial.

b. Assumes the truth of the pleadings.

Question 186

Motion to Strike – Rule 12(f)

Answer 186

a. Motion by party or done by court, sua sponte.

b. Strikes redundant, immaterial, impertinent, or scandalous matters; also strikes insufficient defenses.

Question 187

Counterclaims – Rule 13(a) & (b)

Answer 187

a. Answer must contain any counterclaims if they arise out of the same transaction.
b. Other counterclaims may be permitted regardless of relation to the initial claim or transaction.

Question 188

Amendments – Rule 15

Answer 188

ndments – Rule 15 a. Leave to amend should be freely given

b. Amendment is allowed once as a matter of course 21 days after pleading, a responsive pleading, or Rule 12 motion
c. Other amendment may be allowed with the other party’s consent or with leave of court.
d. Relation back

Question 189

ignature Certification – Rule 11

Answer 189

All representations to the court must be signed

Question 190

Attorney certifies the representation to the best of their knowledge after a reasonable inquiry to be:

Answer 190

i. Not for any improper purpose (harassment, delay, increasing costs)
ii. Claims, defenses, and contentions are supported by law or are nonfrivolous arguments for extending the law
iii. Factual allegations are supported or likely to be supported by evidence after discovery, and
iv. Denials are warranted by evidence, a reasonable belief, or lack of information.