Civ Pro Incorrects

Question 1

Removal and a citizen of state

Answer 1

A civil action filed in state court may be removed to the district court where the state court action commenced if that federal court has original jurisdiction over the matter. If removal is sought solely based on diversity jurisdiction, however, the claim cannot be removed if any defendant is a citizen of the state where the original action was filed. In this case, one of the defendants was a citizen of State B, where the action was filed, and removal is therefore improper

Question 2

Notice of Process to Court?

Answer 2

The federal rules mandate that, unless formal service is waived, a process server must submit proof of service to the court. However, the failure to make proof of service does not affect the validity of the service.

Question 3

Proper Venue

Answer 3

Venue is proper in the district in which “a substantial part of the events” occurred that form the basis of the plaintiff’s claim. The Western District of State D meets this test. Venue is also proper in a district in which “any defendant resides, if all defendants reside in the same state in which the district is located.”

Question 4

Affirmative Defense of SOF?

Answer 4

An answer must not only admit or deny the allegations of the plaintiff’s complaint but also state applicable affirmative defenses, including the Statute of Frauds. Those affirmative defenses not stated in the defendant’s answer are deemed waived. In this case, the defendant did not assert the affirmative defense of the Statute of Frauds, and thus the defense would be deemed waived.

Question 5

SJ is aggregating

Answer 5

Although the court lacks diversity jurisdiction over the younger passenger’s claim because the claim does not satisfy the amount-in-controversy requirement of damages in excess of $75,000, the court can exercise supplemental jurisdiction over this claim. The claim arises out of the same accident as the older passenger’s claim and involves a common nucleus of operative facts. In addition, because the younger passenger and the pilot are citizens of different states, the diversity-of-citizenship requirement is met.

Question 6

Judgment as a matter of law standard

Answer 6

When ruling on a Rule 50 motion for judgment as a matter of law, the court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party. It may not consider the credibility of witnesses or evaluate the weight of the evidence, and it must disregard all evidence favorable to the moving party that the jury is not required to believe.

Question 7

Sanctions and ESI

Answer 7

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

If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order sanctions against the wrongful party. 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 8

Excluded diversity cases

Answer 8

State-law claims generally excluded from diversity jurisdiction include probate matters and domestic relations actions, such as divorce, alimony, and custody. These exceptions apply only to cases that are primarily probate or marital disputes.

Question 9

Bulge Rule

Answer 9

Under Rule 4(k)(1)(B), the so-called “bulge provision,” a federal court has personal jurisdiction over a party who is served within a U.S. judicial district and not more than 100 miles from where the summons is issued, even if state law would otherwise not permit such service. This rule applies to third-party defendants joined by impleader, even if the service is outside of the state and beyond its long-arm statute jurisdiction

Question 10

Foreign party

Answer 10

A defendant who is not a resident of the United States may be sued in any judicial district.

Question 11

Renewed JNOV

Answer 11

The movant may file a renewed motion for judgment as a matter of law no later than 28 days after the entry of judgment.

Question 12

Cross Claim and SJ

Answer 12

A cross-claim may be asserted by a defendant against another defendant or by a plaintiff against another plaintiff if the cross-claim arises out of the same transaction or occurrence as the initial claim, without regard to the amount in controversy or the citizenship of the parties to the cross-claim as long as the court has subject matter jurisdiction. A cross-claim falls under the supplemental jurisdiction of the court.

Question 13

Prelim Injunction

Answer 13

A plaintiff seeking a preliminary injunction must establish that: (i) she is likely to succeed on the merits; (ii) she is likely to suffer irreparable harm in the absence of relief; (iii) the balance of equities is in her favor; and (iv) the injunction is in the best interest of the public. All four of these factors must be satisfied. Under these facts, there is no irreparable injury, as monetary damages are potentially available to compensate the air-freight handler for any breach of contract by the airport. If the affected party can recover damages, the harm is not irreparable.

Question 14

Taking an Early Depo

Answer 14

Rule 30 requires leave of the court to take a deposition before the deposing party has complied with its initial disclosure requirements under Rule 26(a)

Question 15

Order for a new trial and appeals

Answer 15

An order for a new trial is not appealable because it is not a final judgment.

Question 16

Compulsory counteclaim but you field a motion to dismiss before answering

Answer 16

In the prior action brought by the purchaser, the lender’s claim for payment of the note would have been a counterclaim to the purchaser’s claim. Because it arose out of the same transaction that was the subject matter of this claim, it would have been a compulsory counterclaim that the lender would have been required to assert in its pleadings in that action. However, the lender, instead of filing a pleading (i.e., an answer) in that action, filed a motion to dismiss, which was granted. As a consequence, the lender’s failure to raise its demand for payment of the note in the prior action does not bar the lender from bringing a suit to collect on the note

Question 17

Class Action Fairness Act

Answer 17

Under the Class Action Fairness Act (CAFA), the class must have at least 100 members. In this case, there are only 85 members of this class. Therefore, the federal court lacks subject matter jurisdiction based on CAFA. Answer choice A is incorrect. Although the amount in controversy exceeds $5 million, as required for subject matter jurisdiction under CAFA, this action does not satisfy the CAFA requirement that the number of class members be at least 100.

Question 18

Correcting court mistake while appeal filed

Answer 18

Rule 60(a) allows a court to correct a clerical or other mistake resulting from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may make such a correction on motion by a party or on its own initiative, with or without notice. However, once an appeal from a judgment or order has been docketed in the appellate court, such a correction can be made only with leave of the appellate court

Question 19

timeliness for motion for relief from judgment

Answer 19

A motion for relief from judgment under Rule 60(b) must be filed within a reasonable time and no later than one year following the entry of the judgment.

Question 20

Burdens of Proof are Procedural

Answer 20

In diversity actions, a federal district court is generally bound by the conflict-of-law rules of the state in which the district court is located. Questions about the burden of proof are considered procedural and are determined by the law of the forum state.

Question 21

Damages Claimed

Answer 21

Although an allegation in the plaintiff’s complaint is generally deemed admitted if that allegation is not denied in the answer, the same is not true if the allegation relates to the amount of damages.

Question 22

Procedure and SOL

Answer 22

Generally, a federal court with diversity jurisdiction over an action is required to apply state substantive law, such as a statute of limitations, but is not required to apply a state procedural rule. However, when that state procedural rule determines the applicability of the state statute of limitations, the federal court must apply the state procedural rule.

Question 23

Relief from Judgment

Answer 23

Rule 60(b) allows a court to relieve a party from a final judgment or order for a motion filed within a reasonable time, and no later than one year following the entry of the judgment or order, for newly discovered evidence that could not have been earlier discovered with reasonable diligence

Question 24

Physical Exams and GC

Answer 24

. Although a physical examination may be ordered only for “good cause,” the plaintiff here has placed her physical condition into controversy by claiming personal injury damages, which is sufficient “good cause” for the court to order a physical examination.

Question 25

Failure to prosecute

Answer 25

If a plaintiff fails to prosecute his case and, in response to a defendant’s motion, the court dismisses the action, the dismissal is with prejudice and operates as an adjudication on the merits

Question 26

final Judgment Rule

Answer 26

Only a final judgment is subject to immediate appeal. Usually, a judge’s 12(b)(6) dismissal is considered a “final judgment” subject to immediate appeal. However, when there are multiple claims and parties, any order or other decision that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties will not end the action as to any of the claims or parties, and it may be revised at any time before the entry of a judgment adjudicating all of the claims and all of the parties’ rights and liabilities.

Question 27

Collateral Order Doctrine

Answer 27

Under the collateral-order doctrine, a court of appeals has discretion to hear and rule on a district court order if it (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 28

Service based on forum or serving state’s laws?

Answer 28

Under the federal rules, service may be made by 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 29

Filed for Appeal after certification denial… I really have never learned this stuff. Don’t know appeals or service stuff.

Answer 29

An appellate court may, but is not required to, hear an immediate appeal of a certification decision rendered by the district court.

While most interlocutory orders are not immediately appealable, certain equitable orders are reviewable immediately as a matter of right, including an order granting an injunction.

Question 30

Erie Doctrine and Conflicts

Answer 30

When the court is faced with a substantive or procedural question for the purpose of applying the Erie doctine, the district court should determine whether there is a conflict between state and federal law with respect to the issue before the court. If there is no conflict between state and federal law, then the analysis does not need to proceed any further because the court can apply both state and federal law.

Question 31

Joinder? and Bankruptcy?

Answer 31

In order for joinder of defendants to be proper, any right to relief must arise out of the same transaction, occurrence, or series of transactions or occurrences.

Is Br law federal? I really don’t know.

Question 32

Appeals again, I don’t get them

Answer 32

The fact that the claims against the lawyer are still to be decided does not matter here. Normally, the final judgment rule would preclude appeal of the judgment when the claims against another party are yet to be decided. Judgment may be entered as to an individual claim or party, within a multi-claim or multi-party action, when the action as to an individual claim or party is finally determined.

Question 33

Issue Preclusion additional element?

Answer 33

Issue preclusion requires 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 first action. Although there was an employer-employee relationship between the clinic, the defendant in the first action, and the doctor, the doctor was not in privity with the clinic nor a successor-in-interest. Consequently, the doctor was not a party to the first action against the clinic

Question 34

Sanctions for attorney’s fees

Answer 34

A court may impose sanctions, including payment of attorney’s fees, on attorneys, law firms, and parties for violations of Rule 11, but may typically do so only when a party makes a motion for such fees.

Question 35

Stipulating to a smaller jury

Answer 35

A case may be tried before and a verdict returned by less than a six-member jury, if the parties so stipulate.

Question 36

Mistaken D in case and amending

Answer 36

A court should freely grant leave to amend a pleading when justice so requires. Under Rule 15, an amendment to a pleading that changes the named defendant relates back to the date of the original pleading if it asserts essentially the same claim or defense, and the new party knew or should have known of the potential action and received notice within 90 days after the filing of the original complaint. In this case, the claims are identical to those asserted in the original complaint, the named defendant’s partner received notice of the action within 90 days of the filing of the original complaint, and the officer knew that the action would have been brought against him if not for a mistake. Accordingly, the amendment relates back to the date that the complaint was filed and is not barred by the statute of limitations, so the court should allow this amendment.

Question 37

Appeals one more time lol

Answer 37

If an appeal is permitted, it will not stay proceedings in the district court unless the district court or the court of appeals so orders.

Question 38

Issue Preclusion

Answer 38

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 39

Forum Selection Clause

Answer 39

Moreover, 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,” even if the clause is unenforceable under applicable state law.

Question 40

Change of laws via transfer and forum selection clauses

Answer 40

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 41

E-mail service to foreign party

Answer 41

The Federal Rules of Civil Procedure allow service of process on a corporation outside the United States
to be made using any methods available for service of an individual outside the United States, except
personal delivery. These methods include service in any manner, internationally agreed upon, which is
reasonably calculated to give notice. If no international agreement exists, service may be effected by
any method ordered by the court that is not prohibited by the law of the foreign country.

Even if the Federal Rules of Civil Procedure allow a certain method of service, the method must be
constitutional to be employed. To meet the Constitution’s due process requirements, a litigant must be
given reasonable notice of the action, under all the circumstances, so as to apprise him of the pendency
of the action and allow an opportunity to object

Question 42

Avoiding a new trial lol?

Answer 42

Although a federal court is permitted to offer remittitur (a reduction in the damages awarded by the jury) as the means by which the plaintiff can avoid a new trial, a federal court is not permitted to offer additur (an increase in the amount of damages awarded by the jury) as the means by which the defendant can avoid a new trial.

Question 43

Sum Certain….

Answer 43

When a party has failed to plead or otherwise defend an action, and that failure is shown by affidavit or otherwise, the court clerk must enter the party’s default. Once a default is entered against a party, the plaintiff may seek a default judgment. If the relief sought is a sum certain or an amount that can be made certain by computation, the default judgment can generally be entered by the court clerk on the plaintiff’s request, accompanied by an affidavit showing the amount due. Otherwise, the plaintiff must apply to the court for a default judgment.

Question 44

Judge or Jury hearing it? idk

Answer 44

If a new cause of action that was unknown at common law is created, such as the statutory cause of action here, then the court must look to whether the remedy sought is legal rather than equitable; if it is legal, a jury should be allowed.

Question 45

Claim Preclsion expectations?

Answer 45

the parties expectations can matter when determining claim preclusion issues?

Question 46

Notice via publication

Answer 46

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 47

Two-dismissal rule

Answer 47

If a plaintiff has voluntarily dismissed an action based on a claim without court approval, a subsequent voluntary dismissal of an action based on the same claim is a dismissal with prejudice and thus has preclusive effect. This is sometimes referred to as the “two-dismissal” rule

Question 48

A certified class

Answer 48

Under Rule 23(b)(3), a class can be certified if the questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method in bringing about a fair and efficient adjudication of the controversy.

Question 49

Fucking dumb ass question

Answer 49

A federal court with subject-matter jurisdiction is required to adjudicate the controversy despite the pendency of a similar action in a state court.

Question 50

Dismissing an action after being served with sanction’s motion?

Answer 50

A party (or party’s attorney) may seek sanctions that can include the payment of reasonable attorney’s fees and other costs attributable to violation of the certification made by a party or the party’s attorney in presenting a pleading or other paper to the court. Among the certifications made is that factual contentions contained in a pleading have evidentiary support based on a reasonable inquiry. Although the employee’s attorney violated this certification, the employee’s attorney is not subject to sanctions because the attorney withdrew the counterclaim within 21 days of service of sanctions motion.

Question 51

General verdict and special interrogatories to jury

Answer 51

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 (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 52

Res Judicata and Full Faith and Credit

Answer 52

Under 28 U.S.C. § 1738, federal courts must also give full faith and credit to state-court judgments. The requirement of full faith and credit extends to the res judicata effect of the original state-court judgment. Because the state court would not give res judicata effect to its prior decision dismissing a case for lack of personal jurisdiction, as it was not a final decision on the merits, the federal court is not required to do so either.

Question 53

Joinder between just a p and a d

Answer 53

A party asserting a claim may join with it as many independent or alternative claims of whatever nature as the party may have against the opposing party

Question 54

Federal Tort Claims Act

Answer 54

In an action filed under the Federal Tort Claims Act, venue is proper either in the judicial district where the plaintiff resides or in the judicial district where the act or omission occurred.

Question 55

Impleader and then a claim to the new third party from the other side

Answer 55

A plaintiff may assert related claims against an impleaded party when the claim falls under the court’s jurisdiction.

Question 56

I still don’t get appeals even tho I just read that section, so fucking confusing

Answer 56

Federal courts of appeals may hear appeals from the final judgment of the district courts, but most interlocutory orders, such as the denial of a summary-judgment motion or a motion to dismiss, are not considered final and are therefore not immediately appealable.

Question 57

Request for jury instrucitons

Answer 57

Although the court may require the parties to file jury instructions at the close of evidence or at any earlier reasonable time, a party can file a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court for such requests.

Question 58

Act under Color of Legal Authority lol?

Answer 58

An action against a federal officer or employee acting in an official capacity or under color of legal authority may be brought in the judicial district in which the plaintiff resides.

Question 59

Joint Preemptory Challenges to jurors

Answer 59

The court did not err in allowing these challenges. Several defendants or several plaintiffs may be considered as a single party for the purpose of making such challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.

Question 60

Forum Non Conveniens

Answer 60

as federal law has codified the common law doctrine of forum non conveniens insofar as it affects transfers between federal district courts, that law applies here. Application of the common law doctrine is largely confined to dismissal of actions that would be more appropriately tried in the court of a foreign country. It is not applicable to the transfer of an action from one federal court to another.

Question 61

Jury didn’t follow instructions

Answer 61

When a jury’s verdict does not properly follow the court’s instructions, the court may set aside the verdict and order the jury to resume deliberations.

Question 62

TRO and Notice to the other side

Answer 62

Before a court can issue a temporary restraining order, the attorney of the party seeking the order must certify in writing any efforts made to give notice and the reasons why notice should not be required.

Question 63

Federal Statutory Interpleader Action?

Answer 63

Really don’t know shit about this

In order to file a federal statutory interpleader action, the stakeholder must be willing to either deposit the property at issue with the court or to post a bond in an appropriate amount.

Unlike the typical federal court action based on diversity of citizenship, in which there must be complete diversity between each plaintiff and each defendant, diversity jurisdiction is met in a statutory interpleader action if any two adverse claimants are citizens of different states.

For a federal statutory interpleader action, the amount in controversy need only be $500 or more, rather than the $75,000 otherwise required for a diversity action.

Unlike the typical federal court action based on diversity of citizenship in which the federal court generally follows the rules regarding service of process of the state in which the court sits, nationwide personal jurisdiction by service of process is permitted with respect to a federal statutory interpleader action.

Question 64

COL hybrid question

Answer 64

Under the U.S. Constitution, state courts are required to give full faith and credit to the judgments of other states. State courts are likewise required to treat federal judgments as those judgments would be treated by the federal courts. A party against whom enforcement of a judgment is sought may collaterally challenge the original state judgment based on lack subject matter jurisdiction, only if the jurisdictional issues were not litigated or waived in the original action. Here, Executor raised lack of subject matter jurisdiction in the federal court action and the issue was heard and decided by the court. Even though, as explained above, the federal court’s decision on the issue was in error, no appeal was taken, so the court’s judgment became final.

Question 65

Answering after your motion was denied

Answer 65

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 14 days after receiving notice of the court’s decision on this motion to file its answer.

Question 66

Passing Thru exception

Answer 66

The court lacked personal jurisdiction because the defendant was only passing through State A to attend a hearing. If a defendant is voluntarily present in the forum state and is served with process while there, then the state will generally have personal jurisdiction over the defendant. However, an exception occurs when the defendant is merely “passing through” to attend other judiciary proceedings.

Question 67

Removal Stuff

Answer 67

nder Section 1441(a) of the removal statute, an action may be removed to the federal court in the district where the state action is pending. That removal statute determines venue, regardless of whether venue would have been proper under the venue statute (Section 1391) if plaintiff had originally brought the action in that federal district court.

Question 68

Plain Error in Jury Instructions

Answer 68

Unless a party timely and properly objects on the record to an erroneous instruction given or proposed to be given by the court or to the court’s failure to give an instruction timely requested by a party, the party generally cannot raise the matter on appeal. However, the appellate court can address a plain error with regard to the jury instructions that affects substantial rights.

Question 69

Juror bias and a potential assurance

Answer 69

Each party is entitled to an unlimited number of challenges for cause, such as bias or a personal relationship with a litigant. In this case, the relationship of the potential juror to the company, as a current stockholder and former employee, is sufficient to establish a presumption of bias. Therefore, the relationship with the company constitutes proper grounds for striking the potential juror for cause. Answer choice A is incorrect. The potential juror’s assertion that he could fairly consider the evidence in the case can be considered by the judge in deciding whether to strike the potential juror, but it is not enough to preclude the judge from striking the juror for cause due to possible bias.

Question 70

Notice to class action people not named

Answer 70

For a class action that is certified under Rule 23(b)(1) or (2), notice to the class members, other than the named representatives, 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 71

Foreign party with no contacts to the states

Answer 71

The defendant has insufficient contacts with State X, the forum state, to justify the exercise of personal jurisdiction over the defendant by the state court. Consequently, the federal district court in State X also lacks personal jurisdiction over the defendant. Rule 4(k)(2) is generally used for non-U.S. residents who have contacts with the United States generally, but not with any one state in particular. While Rule 4(k)(2) provides for personal jurisdiction by a federal court when no state court can exercise jurisdiction over the defendant, it requires both that the claim against the defendant be based on federal law and that there be minimum contacts such that the exercise of personal jurisdiction in federal court is consistent with the laws of the United States and the United States Constitution. Here, the claim is based on state common law, not federal law, and the minimum contacts with the United States required to justify an assertion of personal jurisdiction over the foreign corporation in federal court do not exist.

Question 72

Foreign party with no contacts to the states

Answer 72

The defendant has insufficient contacts with State X, the forum state, to justify the exercise of personal jurisdiction over the defendant by the state court. Consequently, the federal district court in State X also lacks personal jurisdiction over the defendant. Rule 4(k)(2) is generally used for non-U.S. residents who have contacts with the United States generally, but not with any one state in particular. While Rule 4(k)(2) provides for personal jurisdiction by a federal court when no state court can exercise jurisdiction over the defendant, it requires both that the claim against the defendant be based on federal law and that there be minimum contacts such that the exercise of personal jurisdiction in federal court is consistent with the laws of the United States and the United States Constitution. Here, the claim is based on state common law, not federal law, and the minimum contacts with the United States required to justify an assertion of personal jurisdiction over the foreign corporation in federal court do not exist.

Question 73

Void Dire and unreasonably telling the truth

Answer 73

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 74

When a court has to state its finding of fact and conclusions

Answer 74

A case will be tried by the court without a jury if no right to a jury trial exists (or if it has been waived). The court is the finder of fact; it must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court. The court is not required to state findings or conclusions when ruling on a motion under Rule 12 (motions against the complaint) or 56 (summary judgment) or, unless the rules provide otherwise, on any other motion.