Civ Pro II

Question 1

Discovery - Generally

Answer 1

Rule 26(b)(1): Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.

Question 2

Discovery - Early Conference of Counsel

Answer 2

Rule 26(f) - Counsel are required to meet as soon as practicable to develop a proposed discovery plan that is then presented to the court. Generally, formal discovery cannot commence until after this meeting.

Question 3

Discovery - Initial Disclosures

Answer 3

1. Generally a disclosure of witnesses and materials that support claims or defenses
2. Must be made within 14 days after 26(f) conference
3. Names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment;
4. A copy–or a description by category and location–of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

Question 4

Discovery - Documents Prepared for Litigation

Answer 4

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party

Exception - those materials may be subject to discovery 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 5

Discovery - Consulting Experts

Answer 5

Ordinarily, a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.

Question 6

Discovery - Testifying Experts

Answer 6

A party may depose any person who has been identified as an expert whose opinions may be presented at trial.

Report must be provided containing a complete statement of all opinions the expert will express and the basis/reasons for them.

Question 7

Discovery - Court’s Power to Limit Discovery

Answer 7

1. Rule 26(b)(1) authorizes the court to restrict access to information even if it is relevant.
2. Rule 26(b)(2)(C) court must limit the frequency or extent of discovery if it determines that:
   a. the discovery sought is unreasonably cumulative or
   duplicative, or can be obtained from some other source
   that is more convenient, less burdensome, or less
   expensive;
   b. the party seeking discovery has had ample opportunity
   to obtain the information by discovery in the action; or
   c. the burden or expense of the proposed discovery
   outweighs its likely benefit.

Question 8

Discovery - Compelling Discovery

Answer 8

Rule 37(a)(1) - A party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to make the disclosure in an effort to obtain it without court action.

Question 9

Discovery - Protective Order

Answer 9

Rule 26(c)(1) - The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense

Question 10

Discovery - Evaluation of Privileged Information

Answer 10

Rule 26(b)(5) requires parties who object to production of information based on privilege to provide enough detail about the protected material to allow the requesting party to evaluate the privilege objection.

Question 11

Discovery - Legal Theories of Counsel

Answer 11

Rule 26(b)(3) protects absolutely against disclosure of the mental impressions and legal theories of an attorney.

Question 12

Discovery - Incomplete/Incorrect Information

Answer 12

Rule 26(e) requires that a party who has made a disclosure must supplement or correct it in a timely manner if the party learns that in some material respect the disclosure is incomplete or incorrect.

Question 13

Discovery - Request for Production of Documents

Answer 13

Rule 34(a) - A request from an opposing party to produce and permit the requesting partyto inspect, copy, test, or sample documents, including electronically stored information, as well as tangible things that are in the responding party’s possession, custody or control.

Question 14

Discovery - Spoliation

Answer 14

The destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.

Penalties for spoliation may include adverse inference instructions and monetary sanctions. Sanctions may include dismissal of case, but usually justified only in circumstances of bad faith

Question 15

Discovery - Interrogatories

Answer 15

Rule 33 - A list of questions one party sends to another as part of the discovery process. The recipient must answer the questions under oath.

• Interrogatories are limited to 25 per party, including subparts, but may be changed by stipulation or court order.
• A party must respond (or object) to interrogatories within 30 days. A motion to compel is available for incomplete or evasive answers.

Question 16

Discovery - Request for Admission

Answer 16

Rule 36 - A discovery device that allows one party to request that another party admit or deny the truth of a statement under oath. If admitted, the statement is considered to be true for all purposes of the current trial.

Question 17

Discovery - Depositions

Answer 17

Rule 30 - An examination of a witness under oath in the presence of a court reporter. Parties have the right to be represented by counsel.

Each side may take only 10 depositions, and a witness may be deposed only once. Each deposition is limited to one seven-hour day. These limitations may be changed by the parties’ stipulation or by court order.

If a witness objects to a question they must still answer the question.

Question 18

Discovery - Physical Examinations

Answer 18

Rule 35 - Parties must obtain a court order for a physical or mental exam which will only be granted for good cause.

The condition in issue must be raised directly by the pleadings or in discovery.

Question 19

Discovery - Failure to Disclose or Comply

Answer 19

If a party fails to respond to a valid discovery request or to attend his deposition, sanctions can immediately be sought.

The court will consider whether the party was guilty of willfulness, bad faith, or other fault. A court generally will not impose sanctions for failure to produce electronically stored information that is lost due to the routine, good faith operation of an electronic information system.

The losing party generally bears the opposing party’s expense of making or defending against a motion to compel.

Question 20

Discovery - Sanctions

Answer 20

Sanctions can include:
1. orders that establish facts in favor of the party seeking discovery,

2. disallowance of claims or defenses,
3. grant of dismissal or default, or
4. a finding that a party is in contempt.

Question 21

Default - Generally

Answer 21

If a defendant fails to answer or plead within the time permitted, the clerk of the court is required to enter a default.

Question 22

Default - Setting Aside a Default Judgment

Answer 22

Ordinarily, the defendant must show:
1. That he has a valid excuse for his default (e.g.,
excusable neglect, fraud, inadvertence);
2. That he has a meritorious defense to the action; and
3. That the plaintiff will not be prejudiced.

Question 23

Voluntary Dismissal

Answer 23

Rule 41(a) - A plaintiff retains the right to dismiss his own action by filing a notice of dismissal. The dismissal must be filed before the filing of the adversary’s answer or motion for summary judgment. Thereafter, the plaintiff cannot dismiss without the defendant’s consent or court order.

Question 24

Involuntary Dismissal

Answer 24

Rule 41(b) - If the plaintiff fails to prosecute or to comply with the Rules or a court order, a defendant may move to dismiss the action or any claim against it.

Unless the dismissal order states otherwise, a dismissal of this type operates as an adjudication on the merits i.e. with prejudice.

Question 25

Arbitration vs. Traditional Court Proceedings

Answer 25

1. Generally not appealable
2. Parties can choose the arbitrator (i.e. someone experienced with the matter)
3. Permits the parties to design their own procedure
4. Can be less expensive
5. A written agreement to arbitrate a dispute is valid and enforceable unless a contractual ground for revocation exists (e.g. fraud, illegality, or unconscionability)

Question 26

Judicial Arbitration

Answer 26

A dispute-resolution process conducted by a neutral person under the auspices of the court in an attempt to resolve the action w/o trial

Early neutral, non-binding evaluation to temper the expectations of the parties and encourage settlement

Participation in judicial arbitration is voluntary

Certain actions, such as violation of Constitutional rights, certain civil rights actions, and cases alleging an amount in controversy of more than $150,000 may not be referred to ADR even if the parties consent

Question 27

Settlement

Answer 27

Settlement agreements made in state courts are upheld and have full preclusive effect in federal courts, even if the claims are specifically reserved for the federal judiciary

Parties will often contract to keep the settlement agreement confidential

The agreements do not “buy silence” in subsequent lawsuits. They cannot forbid a witness from testifying about past events that are relevant to another lawsuit

Question 28

Motion for Summary Judgment - Generally

Answer 28

Rule 56 - The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

An issue of material fact is one “that might affect the outcome of the suit under the governing law.”

Question 29

Motion for Summary Judgment - Burden of Proof

Answer 29

The moving party always bears the burden under Rule 56(c)(2) to establish the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.

Once that occurs, the burden shifts to the opposing party to demonstrate that there is a genuine issue of material fact

A moving party meets its burden of persuasion by simply alerting the court that the nonmoving party has failed to establish evidence sufficient to prove its claims

Question 30

Pretrial Orders

Answer 30

Rule 16(e) - Final pretrial conference held for the purpose of formulating a plan for the trial, including the admission of evidence.

Court may modify the order issued after a final pretrial conference only to prevent manifest injustice

Question 31

Right to a Jury Trial

Answer 31

Rule 38 requires a party who desires a jury trial to serve a written demand to the other parties no later than 14 days after the last pleading directed to the issue is served.

Question 32

Jury Composition

Answer 32

In federal civil cases, a jury must have at least 6 jurors, not more than 12 jurors, and are chosen through voir dire

Question 33

Jury - “For Cause” Challenge

Answer 33

A district court must grant a challenge for cause if a prospective juror shows actual prejudice or bias

Actual bias can be shown by the juror’s own admission of bias or by proof of specific facts which show the juror has such close connection to the facts at trial that bias is presumed.

If first request strike for cause gets overruled, then may use preemptory challenge

Unlimited number of jurors may be dismissed through these challenges

Question 34

Jury - Preemptory Challenges

Answer 34

Allow lawyers to strike a juror or any reason or for no reason at all

Each side gets three preemptory challenges

A party may not systematically strike groups of individuals based on race or gender

Question 35

Jury Deliberations and Misconduct

Answer 35

Only information presented at trial may be considered by the jury.

Any communication from the judge must be received in the presence of counsel.

The verdict must be unanimous unless the parties agree to the contrary

Jurors are entitled to evaluate evidence presented in light of their general knowledge and experience

A new trial is appropriate if the juror gave false testimony on voir dire or concealed material facts relating to his qualifications to serve

Question 36

Types of Jury Verdict

Answer 36

General Verdict - The jury finds for the plaintiff or defendant and gives the amount of damages or relief due. A general verdict implies that all essential issues were found in favor of the prevailing party.

Special Verdict - A jury is asked to make a finding on all material conclusions of fact, and the court applies the law.

General Verdict with Special Interrogatories - The jury is asked to give a general verdict and also to answer specific questions concerning certain ultimate facts in the case.

Question 37

Challenging Judges

Answer 37

Disqualification may be based upon:
1. Personal bias
2. Personal knowledge of disputed facts
3. Previous involvement as a lawyer in the matter in 
    controversy
4. Financial interest in the matter
5. Family relationship

Question 38

Judgment as a Matter of Law/Directed Verdict

Answer 38

A party’s motion for judgment as matter of law will be granted if the facts and inferences point so strongly in favor of the party that a rational jury could not arrive at a contrary verdict.

Question 39

Judgement Notwithstanding the Verdict

Answer 39

After the jury has returned the verdict, a motion for JNOV may be granted if the judge determines that no reasonable juror could have found for the non-moving party

Party may only move for JNOV if it also made a directed verdict motion

Question 40

New Trial

Answer 40

Rule 59 - The trial judge has the power to order a new trial on all or part of the factual issues in dispute.

Grounds on which new trial may be granted:

1. Error during the trial
2. Verdict is against the weight of the evidence
3. Juror misconduct
4. Excessive or inadequate damages award

Question 41

Appeal - Final Judgment Rule

Answer 41

28 U.S.C. §291 provides for appeal only from “final decisions of the district courts of the United States.”

A final decision is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Final judgments are immediately appealable

When multiple claims or parties are involved, the court may enter a partial final judgment as to fewer than all of the claims or parties. This judgment is not ordinarily appealable unless the court expressly finds that hardship would result if the appeal from the partial disposition were delayed.

Question 42

Appeal - Requirement of Adverse Judgment

Answer 42

Appeal requires a judgment granting relief different from what one requested.

Question 43

Exceptions to Final Judgment Rule

Answer 43

Injunctions - Party may appeal, as of right, any order granting, continuing, modifying, refusing, dissolving injunctions.

Interlocutory appeals - Review under the act is discretionary and may be available when the trial court certifies that the interlocutory order involves:

1. A controlling question of law;
2. As to which there is substantial ground for difference of opinion;
3. And immediate appeal from the order may materially advance the ultimate termination of the litigation; and
4. The court of appeals agrees to follow the appeal

Question 44

Appeal - Class Action Certification

Answer 44

Rule 23(f) - A court of appeals may permit an appeal from an order granting or denying class-action certification if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered

Question 45

Appeal - Waivers

Answer 45

Rule 46 - Generally, a party need only state the action that it wants the court to take or objects to, along with the grounds for the request or objection. Failure to do so results in waiver

Applies to admitted evidence and jury instructions.

Question 46

Appeal - Timely Appeal

Answer 46

A notice of appeal in a civil case must be filed within 30 days after entry of judgment, or within 60 days, if the United States is a party.

Question 47

Appeal - Harmless Error

Answer 47

At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.

Question 48

Claim Preclusion (Res Judicata) - Defined

Answer 48

Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is barred by res judicata from asserting the same cause of action in a later lawsuit

Question 49

Claim Preclusion - Elements

Answer 49

1. Valid Final Judgment
2. On the Merits
3. Same Claimant v. Same Defendant - Same configuration of parties, not simply that the claimant and the defendant were also parties in a previous case.
4. Cause of Action - If the cause of action arises out of the same transaction or occurrence or series of transactions, the claim must be brought in the initial suit or the doctrine of former adjudication may apply precluding one from bringing a subsequent suit.

Question 50

Claim Preclusion - Compulsory Counterclaims

Answer 50

Rule 13 - Requires that the defendant set up any counterclaim he has against the plaintiff arising out of the same transaction as the plaintiff’s claim.

If he fails to do so, he is barred from thereafter asserting the counterclaim, either as a defense or as the basis for affirmative relief in an independent action.

Question 51

Claim Preclusion - Non-Party Bound by Result

Answer 51

Instances where a nonparty to suit may be bound to the results:
1. Agreement by the parties to be bound by a prior action;
2. Preexisting “substantive legal relationships”;
3. Adequate representation by someone with the same
interests who was a party;
4. A party “assuming control” over prior litigation;
5. Party who loses an individual suit then suing again, this
time as the representative of a class;
6. Special statutory schemes such as bankruptcy and
probate proceedings, provided those proceedings
comport with due process

Question 52

Issue Preclusion (Collateral Estoppel) - Defined

Answer 52

A final judgment binds the plaintiff or defendant in subsequent causes of action between them as to issues actually litigated and essential to the judgment in the first action.

The issue is deemed established in the second case

Question 53

Issue Preclusion - Elements

Answer 53

1. Final Judgment
2. Issue Actually Litigated and Determined - A default or consent judgment generally does not create collateral estoppel as to those issues.
3. Essential to the Judgment - The judgment must depend on the issue of the fact decided.

Question 54

Issue Preclusion - Due Process/Mutuality

Answer 54

The general rule is that collateral estoppel may be asserted only against someone who was a party to the previous case.

Similarly, only someone who was a party in the previous case can use collateral estoppel.

Question 55

Issue Preclusion - Non-mutual Defensive Collateral Estoppel

Answer 55

When a non-party wishes to utilize a prior judgment to avoid liability in a subsequent suit

Question 56

Issue Preclusion - Non-mutual Offensive Collateral Estoppel

Answer 56

Courts have been reluctant to permit a non-party to use collateral estoppel to aid him to obtain relief

However, in cases where it is fair and equitable to do so, offensive use of collateral estoppel may be permitted

Question 57

Compulsory Joinder Generally

Answer 57

Rule 19 - In certain situations, a plaintiff must join all interested parties or face dismissal of the lawsuit.

Question 58

Compulsory Joinder - Should the absentee be joined?

Answer 58

The absentee should be joined as a party when:

1. Complete relief cannot be accorded among the other parties to the lawsuit without the absentee being made a party; or
2. the absentee has such an interest in the subject matter of the lawsuit that a decision in his absence will impair or impede his ability to protect the interest; or leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Question 59

Compulsory Joinder Analysis - Generally

Answer 59

Analysis of a compulsory joinder issue follows a three step process:

1. Should the absentee be joined?
2. Can the absentee be joined?
3. If not, can the action proceed in his absence?

Question 60

Compulsory Joinder - Can the absentee be joined?

Answer 60

Can the court obtain personal jurisdiction over the absentee and will the court still have subject matter jurisdiction over the action after joinder of the absentee?

Question 61

Compulsory Joinder - If not, can the action proceed in his absence?

Answer 61

If the absentee cannot be joined, the court must determine whether in equity and good conscience the action should proceed or should be dismissed. This decision requires consideration of:
1. The extent of prejudice to the absentee or available parties of a judgment;

2. The extent to which the prejudice can be reduced or avoided by means of protective processions in the judgment, the shaping of relief, or other measures;
3. The adequacy of a judgment rendered without the absentee; and
4. Whether the plaintiff will have an adequate remedy if the case is dismissed for non-joinder.

Question 62

Permissive Joinder of Parties

Answer 62

Parties may join as plaintiffs or be joined as defendants whenever:

1. Some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and
2. There is a question of fact or law common to all the parties.

Question 63

Permissive Joinder of Claims

Answer 63

Plaintiffs usually join related claims because of the danger of res judicata.

A single plaintiff may join as many claims as he has against a single defendant, regardless of the subject matter. However, in multi-party cases, at least one of the claims by or against each party must arise out of the same transaction and must involve a common question of law or fact.

A court must still have subject matter jurisdiction over the additional claims, and supplemental jurisdiction may apply if the additional claims arise out of the same occurrence or transaction.

Question 64

Impleader

Answer 64

Rule 14 - A defending party may implead a non-party, but only if the non-party’s liability is derivative of the original claim – that is, if they may be liable to the defendant for all or part of a judgment that the plaintiff may recover against him

Typically for indemnity or contribution

Question 65

Misjoinder

Answer 65

Rule 21 - Misjoinder of parties is not a ground for dismissing an action.

Question 66

Intervention - Defined

Answer 66

Rule 24 - The introduction of a nonparty who has an interest in a lawsuit. The nonparty wishes to protect its rights by presenting a claim or defense or both.

Question 67

Intervention as of Right

Answer 67

The intervenor, has an interest in property or a transaction which is subject to a lawsuit.

The intervenor must show that the judgment of the ongoing lawsuit has the potential to impair his or her interests, and that his or her interests are not represented by either party in the lawsuit.

Once this is shown, the intervenor has the right to enter the lawsuit.

Question 68

Permissive Intervention

Answer 68

Allows for intervention where the intervenor’s claim or defense has a common question of law or fact with the ongoing lawsuit.

Permissive intervention is subject to the discretion of the sitting court.

Question 69

Interpleader

Answer 69

Interpleader is a procedure that typically involves litigation amongst several parties, where there is a possibility of double liability.

Interpleader is an attempt to alleviate confusion and delay by requiring parties known as “stakeholders” to settle their claims in one action.

Question 70

Rule Interpleader

Answer 70

Rule 22 - Normal rules as to subject matter jurisdiction apply.

Question 71

Statutory Interpleader

Answer 71

The federal statute permits jurisdiction where:

1. The amount in controversy is $500 or more, and
2. Where there is diversity between any two contending claimants.

Venue lies where any claimant resides

Process may be served anywhere in the United States

Stakeholder must deposit the amount in controversy with the court

Question 72

Class Action

Answer 72

Rule 23 - One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

1. Numerosity - the class is so numerous that joinder of all members is impracticable.
2. Commonality - there are questions of law or fact common to the class.
3. Typicality - the claims or defenses of the representative parties are typical of the claims or defenses of the class.
4. Adequacy - The representative parties will fairly and adequately protect the interests of the class.

Question 73

Types of Class Actions

Answer 73

1. Rule 23(b)(1) - Prejudice from Separate Actions
If the prosecution of separate actions would prejudice the defendant through inconsistent adjudications, or  substantially impair the interests of other class members.

2. Rule 23(b)(2) - Equitable Relief
If declaratory or injunctive relief would benefit the class as a whole.

3. Rule 23(b)(3) - Common Predominant Question
When common questions of law or fact predominate over questions affecting individual members, and, on balance, a class action is superior to other available methods for adjudication. Used for mass tort actions

Question 74

CAFA - Generally

Answer 74

Under the CAFA, subject matter jurisdiction is established if:

1. Any class member (not just the representative, but anyone in the plaintiff class) is of diverse citizenship from any defendant;
2. The amount in controversy in the aggregate exceeds $5 million; and
3. There are at least 100 members in the proposed class or classes.

Under CAFA, any defendant, rather than all defendants, may remove the case from state to federal court. The case may be removed under the CAFA even if a defendant is a citizen of the forum.

Question 75

Class Action Jurisdiction

Answer 75

The court may decline to exercise jurisdiction over class actions in which over one-third but less than two-thirds of the proposed plaintiff class and the primary defendants are citizens of the state of filing upon consideration of several factors set forth in the statute.

Question 76

Class Action - Effect of Judgment

Answer 76

All members of a class will be bound by the judgment rendered in a class action except those in a “common question” class action, Rule 23(b)(3), who notify the court that they do not wish to be bound (“opting out”).

Members of Rule 23(b)(1) and 23(b)(2) classes cannot opt out.

Question 77

Class Action - Notice

Answer 77

Notice to all members of the class is required only in “common question” suits so that class members can opt out.

The notice must state:

1. the nature of the action,
2. the definition of the class,
3. the class claims, issues, or defenses, and
4. the binding effect of a class judgment.