Civ Pro MBE

Question 1

Complete Diversity vs. Min Diversity
(EMPHASIZE)

Answer 1

Complete–typically req:
–Every citizenship on P’s side must be diff from every citizenship on D’s side AT TIME OF FILING.
–Does NOT mean every P must be diverse from every other P or that every D must be diverse from every other D.
–NO diversity when any P AND any D are citizens of a foreign country.

Min:
–Exists when any P is diverse from any D, even if other P/Ds overlap.
–Fed cts will exercise diversity JX in cases w/ min diversity in following instances:
1) Fed Interpleader Act;
2) Class actions w/ at least 100 class members and claims worth more than $5M; and
3) Interstate mass torts if at least 75 ppl have died.

Question 2

Citizenship of Indv

Answer 2

Domicile=reside AND intent to remain indef

Question 3

Rep Ps

Answer 3

Generally–citizenship of rep P (e.g. trustee) controls.

Exception–decedent’s estate; guardianship of a minor or incompetent P.

Question 4

Corp/Partnerships Citizenship

Answer 4

1) Place of incorp; and
2) PPOB–i.e. “nerve center”; where top-level business/mgmt decisions made
*must consider every st where corp has citizenship for purposes of complete diversity.

Partnerships–citizen of every st of which its members are citizens.

Question 5

Creating/Destroying Diversity

Answer 5

Permitted as long as not a “sham”–i.e. moving permitted–even if sole purpose for creating diversity–so long as change in domicile is genuine/permanent.

Assignment of claim–permitted so long as assignment is real, complete and not collusive
*Partial assignment does NOT affect citizenship–i.e. when assignor retains interest.

Question 6

AIC in Diversity JX

Answer 6

–Claims against each D must > $75K (unless Ds jointly liable then treated as one D).
–Only reqs GF belief for total amt of claim–unless legal certainty AIC not met.

Question 7

Removal

Answer 7

Case can only be removed from st ct to fed ct by D–UNLESS D is a citizen of that st then can’t remove.

Proper ONLY if case could have been brought originally in fed ct–so testing SMJ.

–If multiple Ds then they all have to agree to removal

–Notice of removal must be filed w/in 30 days of service.

–Removal must be w/in 1 yr unless P acted in BF to make case non-removable

Question 8

Improper Removal

Answer 8

P can file petition for remand in fed ct–which makes decision whether removal is proper/improper.

Question 9

Supplemental JX

Answer 9

A federal court will generally exercise supplemental jurisdiction over a claim that falls outside of its original subject-matter jurisdiction if it shares a common nucleus of operative facts with a claim that arises within the court’s original subject-matter jurisdiction.

Fed Q JX–if the 2 claims–one fed claim and one st claim–arise out same “common nucleus of operative fact,” ct may exercise supp SMJ over st claim; i.e. “same case/controversy.”

Diversity JX:
–In actions in which the original JX of fed ct is based solely on diversity JX, when the exercise of supp JX over such claims would be inconsistent w/ the reqs for diversity JX, supp JX is precluded for:
1) Claims by existing plaintiffs (but NOT Ds) against persons made parties under Rules 14 (impleader), Rule 19 (compulsory joinder), Rule 20 (permissive joinder) or Rule 24 (intervention);
2) Claims by persons to be joined as plaintiffs pursuant to Rule 19; and
3) Claims by persons seeking to intervene as plaintiffs pursuant to Rule 24.

Question 10

Compulsory Counterclaim

Answer 10

A compulsory counterclaim–i.e. arises out of same transaction/occurrence–must be asserted in the defendant’s answer or the counterclaim is waived.
Exception–the action is dismissed before the defendant files an answer, in which case the compulsory counterclaim is not waived and can be raised in a future lawsuit.

Usually brought by D so can usually come in w/o meeting AIC–assuming rises out of same transaction/occurrence.

If brought by P in diversity JX–runs into AIC req.

Question 11

Impleading 3P for Indemnification

Answer 11

If D impleads a 3P for indemnification–D becomes third-party plaintiff and the 3P becomes a third-party defendant. Therefore any claim the 3P has against D arising out of the same occurrence/transaction becomes a compulsory counterclaim.

Question 12

Permissive Counterclaim

Answer 12

Does NOT arise out of same transaction/occurrence–must indp satisfy JX reqs– i.e. complete diversity and AIC– for diversity claims or raise a fed Q on fed claims.

Question 13

Crossclaims–NEVER mandatory

Answer 13

Claim by Co-party against another Co-party:
–MUST arise out of same transaction/occurrence;
–Crossclaims by Ds will usually qualify for supp JX b/c do not need to meet diversity req–still look for relatedness req;
–More limited for Ps–must not be asserted by a P against a non-diverse P made party under rules 14, 19, 20, 24–otherwise NO supp JX.

E.g. if D impleads non-diverse D (e.g. P is from Iowa and D impleads co-D from Iowa) under Rule 14 to indemnify her for damages, ct can still exercise supp JX; but NOT if P then asserts claim against non-diverse D b/c defeats diversity.

Question 14

Mult Ps, Single D

Answer 14

If claim of one diverse P against single D satisfies AIC–other diverse Ps who have related claims against D can also be heard under supp JX even if their claims do NOT satisfy AIC.
*Still supp JX can’t be used to do end-run around diversity req.

Question 15

Joinder of Claims

Answer 15

A single P can join all claims–regardless of whether they arise out of same transaction/occurrence–against a single D so long as the ct has SMJ over each claim.

Rather than meeting AIC req for each claim indp–P could aggregate the value of the claims against single D assuming diversity is met (or alternatively arg that the claim not meeting AIC should still be heard under supp JX if arising out of same transaction/occurrence).

Question 16

Personal JX–EMPHASIZE

Answer 16

2 Qs:
1) Has the basis for exercising PJ over out-of-st D been auth by st’s long-arm statute?;
2) Is process for exercising PJ permitted by DPC?

Unlike SMJ–PJ can be waived; vol litigating on the merits waives objection to PJ, so lack of PJ must be raised at first opp.

Question 17

Personal JX:
General In Personam JX

Answer 17

P can assert ANY claim whatsoever even if unrelated to D’s contacts w/ forum st.

Basis for gen in personam JX:
1) physical presence in st–vol and knowingly–when served (NOT met if D just passing through st to attend other hearing);
2) domicile–for corps where it is incorp and PPOB; or
3) consent–impliedly or expressly; D can impliedly consent through its conduct such as filing counterclaim.

Question 18

Personal JX:
Specific In Personam JX

Answer 18

Long-arm statutes: Every st has a long-arm statute which allows specific in personam JX over out-of-st Ds for particular transactions involving that st. In many sts, the long-arm statute authorizes JX to the extent permissible under DPC—DPC reqs satisfied if non-resident D has certain min contacts w/ forum state such that maintenance of the action does not offend trad notions of fair play and sub justice.

P’s claims against D MUST arise out of or be directly related to D’s contacts w/ forum:
–D must have suff min contacts w/ forum such that exercise of JX does not offend trad notions of fair play and sub justice–fewer contacts needed when lawsuit about those contacts.

Reqs:
1) Min contacts asks if–there is purposeful availment, foreseeability, and relatedness (i.e. D more likely to be subj to the laws of forum st if the conduct that gave rise to the cause of action occurred in forum st);
2) Ct must also determine if maintenance of the action would “offend trad notions of fair play and sub justice–factors to consider include:
–(i) the interest of the forum state in adjudicating the matter;
–(ii) the burden on the defendant of appearing in the case;
–iii) the interest of the judicial system in the efficient resolution of controversies; and
–(iv) the shared interests of the states in promoting common social policies.

Fed cts expand nationwide PJ in–statutory impleader and bulge provision.

Question 19

Service of Process

Answer 19

Fed rules auth service in accordance w/ st law where fed ct sits.

Regardless of st rules fed rules allow:
1) in-hand personal delivery;
2) leaving summons at D’s dwelling w/ person of suitable age;
3 ) deliver to auth agent (service to atty gen not accepted unless st law provides); and
4) for ppl in foreign countries by mail req signed receipt.

–Diversity cases–D MUST be served in accordance w/ the service-of-process rules of the state where service made–NOT the st where the suit is filed.
–The failure to file proof of service does NOT affect validity of service.

Question 20

Reasonable Notice Under Due Process

Answer 20

Due process requires that a defendant be reasonably apprised of the pending suit and afforded an opportunity to present objections. Therefore, the plaintiff must notify the defendant of the lawsuit by the most reasonable means under the circumstances.

Question 21

Venue–EMPHASIZE

Answer 21

Concerns which district ct should hear the case–V proper in district:
1) where any D resides at time of filing–as long as all Ds reside in same st; or
2) where “sub part of the events or omissions” on which the claim is based occurred; or
3) if neither then any district where any D is subj to to personal JX–i.e. lives in forum st at time of filing (gen in personam) or suff min contacts (specific in personam)
*In a state that contains multiple judicial districts and in which a D CORP is subject to personal jurisdiction at the time the action is commenced–the corporation “shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State.”

If removed V proper in fed dist where st ct sits–even if that dist not proper originally (assuming SMJ and PJ met).

D’s claim of improper V must be made at first opp or waived–e.g. pre-answer motion to dismiss or D’s answer.

*Non-US citizen can be sued in any V

Question 22

Transfer when original V is proper (always analyze whether original V is proper)

Answer 22

Transfer from fed ct to another for convenience and admin of justice–ONLY to a dist ct w/ proper V (i.e. where it might have been brought) unless all Ps agree to transfer w/o proper V.
*Look for fact pattern b/t indv P and a corp D–i.e. if change of V would not be convenient for P and corp D could easily rep itself in the original proper V, then ct should deny D’s motion for change of V b/c not convenient or in interests of justice.

Conflict of Law:
–if suit initially brought in dist w/ proper V and transferred–then law of transferor (first) forum controls (unless facts show forum selection clause).
–If suit brought in dist w/o proper V the law of transferee (second) ct controls–don’t get to take your bad law w/ you.

Question 23

Erie Doctrine

Answer 23

Choice of Law–fed ct sitting in diversity JX will apply st sub law (i.e. apply precedent from highest st ct; give attention to lower cts but NOT binding).

But for purposes of procedure–fed law applied if covered by FRCP.

But if unclear if issue substantive vs. procedural (e.g. deadline to commence action under SoL; res judicata/collateral estoppel), under Erie Doctrine state law applies if:
(1) fed law does not directly address issue (e.g. FRCP do NOT address deadline to commence action under SoL but DOES address res judicata/collateral estoppel);
(2) st law is outcome determinative—i.e., forum-shopping in fed ct or inequitable administration of the laws would result if it is not applied; and
(2) there is no countervailing federal policy interest.

In extremely RARE circumstances–fed common law will govern sub issues if uniquely fed interest conflicts w/ st law; e.g. protecting military-style equip manufs from liability.

Question 24

Federal-rule Analysis

Answer 24

BUT if there is a fed law directly addressing this unclear issue, then:
1) if the law is arg procedural and
2) does not modify a sub right
–fed law applies; if NO to either of those then st law applies

Question 25

Well-Pleaded Complaint and Notice Pleading

Answer 25

Well-Pleaded Complaint–FRCP 12(b)(6):
–A claim for relief can be dismissed if it fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts suff to support a cognizable claim.
–2-step analysis for adjudicating MTD for failure to state a claim:
1) ct must identify and reject legal conclusions unsupported by factual allegations; and
2) ct should assume the truth or veracity of well-pleaded factual allegations and should include a “context specific” analysis that draws on the ct’s judicial experience and common sense to determine whether the allegations plausibly give rise to an entitlement of relief.

Notice Please:
–The pleading must put the opposing P on notice of the claim by pleading facts supporting a plausible claim.
–Complaint must also contain a statement of SMJ, statement of the claim, and a demand for relief.
–if the cause of action is for fraud/mistake/special damages–it must be pleaded w/ particularity or specificity.

Question 26

MTD

Answer 26

Permitted for:
1) Lack SMJ–cannot waive and be raised at any time
2) Lack PJ–must be raised at first opp (pre-answer or answer)
3) Improper V–must be raised at first opp (pre-answer or answer)
4) Insuff service of process-must be raised at first opp (pre-answer or answer)
5) Failure to state claim–waived if not asserted before end of trial
6) Failure to join nec P–waived if not asserted before end of trial

Question 27

12(b)6 MTD for Failure to State a Claim

Answer 27

A motion to dismiss for failure to state a claim is a request that the court dismiss the suit because the non-movant’s complaint fails to assert a legally cognizable claim OR fails to allege facts that sufficiently support the claim.

The court’s consideration of this motion is limited to the contents of the pleadings and matters of public record (otherwise considered MSJ in which case the Ps given opp to present all material info to the ct). The court also must:
–treat all well-pleaded facts in the complaint as true; and
–view the evidence and draw all reasonable inferences in the light most favorable to the non-movant.

Question 28

Answer

Answer 28

Usual deadline to file answer w/ P’s atty is 21 days after service, and then file answer w/ court clerk reasonable time after that (even if beyond 21 days); if D agrees to waive service then gets 60 days to answer.

Must include the following or waived:
–admissions/denials;
–affirmative Ds;
–motions not already waived;
–and compulsory counterclaims.

Failure to respond constitutes admission
*Exception–damages-related allegations cannot be admitted by the defendant’s failure to deny them in an answer.

–If D filed MTD and ct denies–answer due in 14 days.

Question 29

Amendments to Pleadings

Answer 29

As of right–may be amended once at any time w/in 21 days of service or w/in 21 days of D’s response.

By leave of ct–should be freely granted unless judge has reason fro denying leave–e.g. amendment too late and would be prejudicial to D.

Response–unless the court orders otherwise, a responding party generally must respond to an amended pleading within:
(1) the time that remains to respond to the original pleading or
(2) 14 days after service of the amended pleading—whichever occurs later.

Question 30

Doctrine of Relation Back

Answer 30

If SOL has run out–then this doctrine determines whether amended pleading is allowed (relates back) or time-barred (not relate back).

Rule–amended pleadings timely if:
1) they concern same transaction as original pleading; and
2) P to be added has notice–e.g. parent company/subsidiary okay; but naming wrong store–NOT okay.

Question 31

Compulsory Joinder of Ps; Nec P

Answer 31

Joinder is about what Ds can compel Ps to do and is governed by Rule 19.

Q1–is bringing P into the case nec for a judge adjudication? If yes, then P nec P and proceed to Q2:

Nec P–someone whose participation in the suit is nec for a just adjudication b/c:
–absent that P, complete relief cannot be accorded to the existing Ps;
–the nec P has an interest in the subj of the litigation which will be impeded by this litigation; or
–there is sub risk of double or inconsistent liability imposed on others if the P is not brought into the case;
–worried about prejudice to existing Ps.

Q2–is it feasible to add nec P to the litigation? If not, proceed to Q3:

Nec P MUST be joined if feasible:
–Feasible if it will NOT deprive the ct of SMJ (e.g. will not destroy complete diversity) and the ct can exercise personal JX over the nec P.
–Bulge provision–in addition to other grounds for serving an out-of-st P a nec P may be served anywhere w/in 100 miles of the fed courthouse.

Q3–should the ct proceed w/o nec P or throw the entire case out?
–if a nec P cannot be joined the ct decides whether to:
–continue w/o nec P (typically the case) OR
–dismiss the whole suit (rare)–i.e. the nec P is described as being indispensable.

Question 32

“100-mile bulge provision”

Answer 32

The “100-mile bulge rule” establishes personal jurisdiction over a party:
(1) added to the suit through impleader or required joinder; and
(2) served with process within 100 miles of the federal court where the suit is pending.

Question 33

Demand for Jury Trial

Answer 33

Under 7A a party may secure a jury trial in fed ct in all “suits of common law” where the AIC exceeds $20. P must:
(1) serve the other parties with a written jury trial demand no later than 14 days after the last pleading directed to that issue is served; and
(2) file the jury trial demand with the court within a reasonable time after service of the demand.

Ps entitled to jury trials for legal claims but NOT equitable claims–e.g. specific performance/injunction; if case involves both legal and equitable issues then ct determines equitable claims second.

Question 34

Discovery Scope

Answer 34

Discovery is generally permitted with regard to any matter relevant to any party’s claim or defense in the action that is not otherwise privileged. This includes the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. Admissibility of the evidence at trial does not matter for determining relevance for purposes of discovery.

The test is whether the information sought is relevant to any party’s claim or defense–if NOT then NO obligation to disclose info. Information may be discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.”

A P gen may not seek disco until AFTER disco conference pursuant to Rule 26(f).

Question 35

Initial Disclosures

Answer 35

A P must disclose all info it plans to use in support of its claim / defense w/in 14 days of disco conference.

If P does not disclose w/in 14 days then other P may bring motion to compel.

Question 36

Request for Production of Docs

Answer 36

A request to produce documents is a discovery tool that allows a party to request and inspect designated documents in another party’s possession, custody, or control. The party to whom the request is directed must respond in writing:
(1) within 30 days after being served or
(2) if the request was served prior to that conference, within 30 days after the parties’ first Rule 26(f) conference—unless a shorter or longer time is stipulated by the parties or ordered by the court.

Question 37

Motion to Compel–Timing

Answer 37

If a party fails to make initial disclosures or fails respond to discovery that has been properly served, then the party seeking the information may move to compel such discovery.

A motion to compel must be served on all parties and accompanied by a certificate that the movant has in good faith conferred or attempted to confer with the opposing party in an effort to obtain the disclosure or secure the information or material without court action.

Question 38

Req to Produce Docs

Answer 38

Req to produce docs should NOT come from interrogatory–i.e. need to serve other P w/ req to produce docs when asking for their production.

Nonparties may be compelled to produce documents and other things or submit to an inspection pursuant to a subpoena.

Question 39

Discovery–Work-Product Rule

Answer 39

Rule states that trial prep materials by one P cannot be discovered by the other P.

Atty work product rule protects:
(1) docs and tangible things (not the underlying info);
–E.g. lawyer’s notes of witness interviews protected but not names of witnesses;
(2) prepared in anticipation of litigation or for trial;
–E.g. ord business records not protected;
(3) By or for another P or the P’s rep

Creates a qualified immunity from disco that can be overcome only if the P seeking disco shows:
(1) a real need for the doc or thing; and
(2) that the info cannot be obtained elsewhere w/o undue hardship (e.g. witness dies)
–Even so, if ct orders disco of trial prep materials, ct must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of atty or other rep concerning litigation.

Question 40

Depositions vs. Interrogatories

Answer 40

A deposition–is a discovery method in which a party conducts a written or oral examination of a party or nonparty under oath and outside of court. Therefore, the plaintiff can use an oral deposition to obtain information from the defendant’s former employee—and, if necessary, can obtain a subpoena to compel the nonparty’s attendance.
*A party may conduct an oral deposition without the court’s leave or the parties’ stipulation unless:
(1) the deposition exceeds the 10-deposition limit;
(2) the deposition is sought before the initial planning conference, or
(3) the deponent was already deposed in the case.

Interrogatories–are written questions served on another party that may inquire about any non-privileged matter within the scope of discovery—but interrogatories CANNOT be served on a non-party.
*Any P may serve NO more than 25 interrogatories on any P w/o seeking permission from ct.
*Interrogatories should be sent AFTER disco conference, NOT before.
*Each interrogatory must be answered fully under oath unless responding P objects w/ specificity.

Question 41

Testifying vs. Consulting Expert

Answer 41

Rule 26(a)(2)–requires parties to disclose the identities of persons who may testify as expert witnesses and to produce an expert report for each such witness.
*Even if a P does not ask for the names of the testifying experts in disco–those names/reports req to be produced 90 days prior to trial under mandatory disclosure rules.

Consulting Expert:
–If the expert was retained or specially employed by another party in anticipation of litigation or to prepare for trial but is NOT expected to be called as a witness–then discovery is permitted only on a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.

Question 42

Physical/Mental Examination

Answer 42

A court can only order a physical or mental examination of a party by a suitably licensed or certified examiner if that party’s physical or mental condition is in controversy.

E.g. If P sues D for neg and is claiming physical injuries, a physical exam may be ordered to prove damages; but NOT mental exam unless P is claiming psychological suffering.

An order for a physical or mental exam may be made only upon motion, for good cause shown, and the person to be examined and all parties must be given prior notice specifying the time, place, conditions, and scope of the examination and the identity of the examiner.

Question 43

Discovery of Privileged Information

Answer 43

When privileged info is inadvertently produced, FRCP permits the producing P to promptly notify the receiving P of the disclosure and provide the basis for the privilege claim. After being notified the receiving P must:
1) promptly return, sequester, or destroy the info and any copies;
2) not use or disclose the info until the privilege claim is resolved; and
3) take reasonable steps to retrieve info already disclosed to others.

Question 44

MSJ

Answer 44

This motion must be granted if the pleadings, disco, disclosure materials on file, and any affidavits show:
1) there is no genuine dispute—meaning no reasonable jury could find for the nonmoving P—as to any material fact; and
2) the moving P is entitled to judgement as a matter of law.

Burden of Proof—the movant has the burden of persuasion on MSJ; once movant makes a prima facie showing that SJ is approp then burden shifts to opposing P to set forth specific evidence showing existence of genuine issue of fact for trial.

–Evidence: jury must consider all materials cited by Ps even if not presented in form admissible at trial, as long as the facts contained in submissions are admissible; supporting and opposing affidavits must be made on personal knowledge, must set out facts that would be admissible in evidence, and must establish the affiant’s competency to testify on the matters stated; pleadings gen not sworn statements but if verified or taken under oath they become affidavit.

–Response by opposing P—cannot merely rely on allegations or denials in pleading, but must set out specific facts showing genuine dispute for trial, including:
1) affidavits based on personal knowledge;
2) setting out admissible facts; and
3) showing affiant’s or declarant’s competency to testify to the matters stated therein.

Question 45

Jury Verdict in Fed Civil Trial

Answer 45

A jury’s verdict must be unanimous, unless the Ps have stipulated otherwise.

Verdict must be returned by at least 6 jurors (max 12 jurors), unless Ps have agreed otherwise.

Question 46

Objection to Jury Instruction

Answer 46

A jury-instruction error is preserved for appeal when a party timely objects to the instruction on the record and states the grounds for the objection.

–An objection is timely if it is made promptly after learning that a jury instruction has been or will be given OR that a request has been refused.

Question 47

Motion for JMOL (i.e. Directed Verdict)

Answer 47

Motion for Judgment as a Matter of Law (JMOL):
–Essentially a MSJ after trial has begun—i.e. made by D at end of P’s case or by either P at close of all evidence;
Standard—ct must:
1) view the evidence and draw all reasonable inferences in favor of the nonmovant;
(2) disregard any evidence favorable to the movant that the jury need not believe; and
(3) not consider the credibility of witnesses or the weight of evidence; and
(4) After that find that no reasonable jury would find for the nonmoving P.

*JMOL granted and if the losing P appeals and the app ct thinks the trial ct was wrong to grant the JMOL– the case is retried.

Renewed Motion for JMOL (req in order to appeal):

–If ct denies JMOL then can renew motion w/in 28 days of the entry of judgement; same standard as above; prior motion req as condition precedent;
*If the judge instead lets it go to jury and then grants renewed motion for JMOL afterwards–then the verdict is on the books if trial ct is reversed on appeal (unless judge also rules conditionally on motion for new trial).

Question 48

Motion for a New Trial

Answer 48

Will be granted in the ct’s discretion for either:
1) errors at trial which substantially affected a P’s rights;
2) if the verdict was against the manifest weight of the evidence;
3) juror misconduct; or
4) verdict is excessive/inadequate.

This motion may be combined w/ renewed motion for JMOL. If the judge grants the motion for JMOL, the judge must also rule conditionally on the new trial motion–later if the JMOL is reversed on appeal the new trial will then occur automatically unless appeals ct specifies otherwise.

Question 49

Res Judicata (i.e. claim preclusion)

Answer 49

Prohibits lawsuits involving:
1) the same parties
2) original and subsequent claims are identical; and
3) if the court has already entered a final judgment on the merits—i.e. judgement made based on facts and relevant substantive law (e.g MSJ, JMOL, default judgement) rather than procedural/technical grounds (lack of SMJ/PJ/V).

Claims are identical if they:
(1) arise from the same transaction, occurrence, or series thereof–i.e. whether the facts are related in time/space/origin/motivation; the facts form a convenient trial unit; and treating the facts as a unit conforms to Ps’ expectations; and
(2) could have been raised in the first action.

Question 50

Collateral Estoppel (i.e. issue preclusion–broader application than res judicata)

Answer 50

Prohibits the same issue of fact or law to be litigated again. While res judicata precludes the relitigation of claims involving the same parties–collateral estoppel applies to an issue that has been litigated even if the parties in the subsequent suit are completely unrelated to those of the first—i.e. collateral estoppel does not require the same parties from the prior case to be in the subsequent case, thus broader application; ONLY reqs that P against whom issue is to be precluded was a P to the original action.

Five-prong test for applying collateral estoppel:
1) Issue must be identical–i.e. whether the facts are related in time/space/origin/motivation; the facts form a convenient trial unit; and treating the facts as a unit conforms to Ps’ expectations
2) Issue must have been actually litigated;
3) Must be a valid judgement on the merits;
4) Determination of the issue must have been essential to the judgement; and
5) P against whom collateral estoppel being sought must have had a fair and equitable opp to litigate the issue during prior suit.

Offensive use of collateral estoppel by P (cts more hesitant here if it would be unfair to D) permitted unless:
1) plaintiff could have easily joined first action;
2) defendant had little incentive to vigorously defend in first action;
3) second action affords procedural opportunities unavailable in first action; or
4) inconsistent findings on issue exist

Question 51

Class Action Pre-reqs

Answer 51

Rule 23(a) establishes four requirements for representative members of a class to sue or be sued on behalf of all members of the class:

1) Numerosity–i.e. The class must be so numerous that joinder of all members is impracticable;
2) Commonality–There must be questions of law or fact that are common to the class;
3) Typicality–The claims or defenses of the representatives must be typical of the class; and
4) Adequacy–The representatives must fairly and adequately protect the interests of the class.

Question 52

Permissible Types of Class Actions

Answer 52

Prejudicial risk–when sep actions would create a risk of 1) inconsistent decisions regarding the Ps or 2) impairing absent class members’ interest;

Common Q–when common Qs of law or fact predominate over indv Qs and a class action is the best method to resolve the dispute;

Final equitable relief–when injunctive or declaratory relief is approp b/c opposing P’s actions gen apply to whole class.
*This is valid if the suit also seeks incidental monetary damages, but NOT if it seeks individualized monetary relief.

Question 53

Class Action Settlement

Answer 53

A proposed settlement of a federal class action must be approved by the court to be valid. The proposed settlement may be approved only after the court holds a hearing and issues findings that the settlement is fair, reasonable, and adequate.

Question 54

Final Judgement Rule

Answer 54

The final-judgment rule–bars federal appellate courts from hearing an appeal until the federal district court has entered a final judgment. A final judgment is a judicial decision that fully resolves the dispute ON THE MERITS–and does not rule on a technicality like MTD for lack of JX or improper V–and leaves nothing for the court to do but enforce the judgment.

Timeline: The notice of appeal must generally be filed within 30 days after the judgment or order being appealed was entered.
*e.g. if a ct grants a motion for a new trial then it is not a final judgment since the jury’s verdict will be set aside and the merits of the plaintiff’s defamation claim will be decided in a new trial.

Question 55

Exceptions to Final-Judgement Rule:

Interlocutory Order and Collateral Order

Answer 55

Interlocutory Order: Although most interlocutory orders are not immediately appealable, there are some that have an immediate right of appeal, such an order granting, modifying, refusing, or dissolving an injunction, an order appointing or refusing to appoint a receiver, and certain admiralty cases.

Collateral-order doctrine: Under the collateral-order doctrine, a court of appeals has discretion to hear and rule on a district court order if it:
(1) conclusively determines the disputed question;
(2) resolves an important issue that is completely separate from the merits of the action; and
(3) is effectively unreviewable on appeal from a final judgment.
*Objection to SMJ can be raised at any stage so would NOT fall under this doctrine.

Question 56

Default Judgement

Answer 56

Default refers to D’s failure to timely serve an answer to a lawsuit, which is gen due w/in 21 days after D is serve w/ process.

When P shows this failure to the ct clerk, the clerk MUST enter D’s default into the record when:

1) P’s claim is for a sum certain or a sum that can be made certain by calc;
2) P’s req for a DJ includes an affidavit establishing the amt due;
3) D failed to appear; and
4) D is not legally incompetent or a minor.

Question 57

Relief from Prior Judgement

Answer 57

A P can move for extraordinary relief w/in 1 yr from the entry of final judgement or ct order that is based on:
1) mistake, inadvertence, surprise, or excusable neglect;
2) newly discovered evidence; or
3) opposing P’s fraud, misrep or misconduct.

Question 58

Appellate Standards of Review

Answer 58

De Novo–i.e. pure legal issues such as conclusions of law–e.g. grant of SJ–and jury instructions; no deference to lower ct’s findings.

Clearly Erroneous–reviews trial ct’s factual findings in bench trials; great deference to lower ct.

Abuse of Discretion–discretionary rulings–i.e. admissibility of evidence and credibility of Ws; highly deferential.

Question 59

Additur/Remittitur

Answer 59

Additur–a fed ct CANNOT increase an allegedly inadequate jury award of damages b/c it violates 7A right to jury trial.

Remittitur–a fed ct CAN decrease an allegedly excessive jury award for damages; if req granted the opposing P must choose b/t 1) reduction in damages or 2) new trial on damages.