Civ Pro Questions

Question 1

APPEALS
Who can appeal a case?

Answer 1

Only a loosing party can appeal a case

Question 2

APPEALS
What is a loosing party?

Answer 2

When the Plaintiff did not get relief he claimed to be entitled to whether in amount or quality of judgment

Question 3

APPEALS
Can settlements appeal?

Answer 3

No, never

Question 4

APPEALS
What type of decisions can be appealed?

Answer 4

Finality. Any FINAL decision

Question 5

APPEALS
What is finality?

Answer 5

“A final decision resolves all claims against all parties leaving nothing for the district court to do but enter final judgment”

No Finality = No Jurisdiction in the court of appeals

Question 6

APPEALS
Are partial rulings “finality”?

Answer 6

No, they are interlocutory

Question 7

APPEALS
Can discover orders, or denying sanctions be immediately appealed?

Answer 7

No, only AFTER judgment

Question 8

APPEALS
Can you bring new evidence is appeal?

Answer 8

No, see rule 60

Question 9

APPEALS
What is Moot?

Answer 9

When the case or controversy no longer exists.

Question 10

APPEALS
Can you appeal anything/ what must you do to appeal?

Answer 10

You cannot appeal something that has been waived, thus you must have…
(a) Objected to it at trial, or
(b) Filed a motion

Question 11

APPEALS
What to do when you have new evidence?

Answer 11

(ask court of appeals to “hold”) Go back to district court and file a Rule 60(b)(2) claiming you have new evidence

Question 12

APPEALS
How long do you have to file a notice of appeals?

Answer 12

30 days after judgment
*Unless USA, USA agency/employee involved then 60 days

Question 13

SMJ
Where can you file a case / how much jurisdiction does each court have?

Answer 13

(1) State Court: General Jurisdiction
(2) Federal Court: Limited Jurisdiction
–> SMJ (federal must have both SMJ and PJ)

Question 14

SMJ
What is subject matter jurisdiction?

Answer 14

The power the (federal) court has over the type of case. There can be SMJ with..
(a) §1331- Federal question
(b) §1332- Diversity

Question 15

SMJ
What is Federal Question?

Answer 15

Federal question grants federal district courts original jurisdiction over cases arising under federal law.

This has to be through the P claim and cannot be through an anticipated defense.

Question 16

SMJ
What is diversity?

Answer 16

Diversity is when District Courts shall have original jurisdiction where the matter in controversy exceeds sum or value of $75,000 and is between…
(a) citizens from different states;
(b) citizen of a state and foreigner;
(c) citizens of a different states and foreigners are additional parties; OR
(d) a foreign state as plaintiff and citizen of a state.

Question 17

SMJ
What if one D is from a different state and another D is from the same sate as P?

Answer 17

You cannot have Diversity.

Complete Diversity says that NONE of the defendants can be from the same state as the P

Question 18

SMJ
What is a citizen under SMJ (ppl and corps)?

Answer 18

People Citizens = “A person is a “citizen” of the state in which he or she is domiciled. Domicile is established by (1) physical presence; (2) with intent to remain there.”

Corp Citizens = The place of INC. or the “Nerve Center” which is where CxO’s activity is

Question 19

SMJ
Can SMJ be waived/ what do courts do if they don’t see SMJ?*

Answer 19

Rule 12(h)(3) says If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.

It cannot be waived!

Question 20

SMJ
What if the D sees no SMJ?*

Answer 20

They can file for..
12(b)(1) Motion for lack of SMJ –> P can file in state court, OR.
12(b)(6) Motion for lack of merrit –> P cant re file and is Shit out a luck

Question 21

SUPPLEMENTAL JURISDICTION
What is supplemental Judgement?

Answer 21

When federal court has SMJ over a claim, supplemental jurisdiction allows the court to hear additional claims that are sufficiently related to the original claim, even if the original claim does not independently satisfy for federal jurisdiction.

Question 22

SUPPLEMENTAL JURISDICTION
When can courts can decline jurisdiction?

Answer 22

1. There is novel or complex state law
2. State claims dominate the case
3. The federal court has dismissed claims that create a basis for federal jurisdiction (no SMJ)
4. Other compelling reasons

Question 23

DEFAULT
What is default and how is the damages set?*

Answer 23

Default is when the D “does nothing”

Rule 55- Default Judgment
(b)(1) when it is a straight forward $$ amount
(b)(2) if not obvious the court decides
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
(c) a default judgement can be set aside a default for good cause (see Rule 60(b))

Question 24

How do you get relief from (undo) a Judgement?*

Answer 24

Rule 60. Relief from a Judgment or Order
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);
(3) fraud, . .. misrepresentation, or misconduct by an opposing party;….Or
(6) any other reason that justifies relief.

*Often post judgment motion but can also be an attack an order OR undo a Default judgement

Question 25

DEFAULT
How can the Plaintiff “default”?*

Answer 25

Rule 41(a)(1)(A) Allows plaintiff to voluntary dismiss case at any time before defendant answers or move for summary judgment.

Rule 41(b) Case may be involuntarily dismissed (defendant can move) if the plaintiff fails to prosecute (e.g. ignoring court scheduling orders,…etc).

Question 26

PLEADINGS
What is the order of pleadings?

Answer 26

In a nutshell:
Plaintiff files complaint [Rule 8]
Defendant files
o Answer [Rule 8]
o Motion to dismiss [Rule 12]
o Motion for sanctions [Rule 11]
o Default (do nothing)
Plaintiff may
o Respond to motion
o Amend complaint [Rule 15]

Question 27

PLEADINGS
What does a complaint consist of?*

Answer 27

Rule 8(a)
(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
*NO LEGAL ARGUMENTS

“more than an unadorned, the defendant-unlawfully harmed me accusation.” & A complaint that “offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action ARE NOT enough **We need some facts

Question 28

PLEADINGS
What does an answer consist of?*

Answer 28

(b) Defenses; Admissions And Denials.
(1) In General. In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it by an opposing party.
(2) Denials-Responding to the Substance. A denial must fairly respond to the substance of the allegation.
*NOTE: Defendant may assert a “general denial to all allegations; & may assert “specific denials” to discrete allegations.

Rule 8(c): Affirmative Defenses
Certain defenses must be “affirmatively” stated, including…
o Exhustion

Question 29

PLEADINGS
What is a motion/ what kinds are there?*

Answer 29

Rule 12
But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(6) failure to state a claim upon which relief can be granted; and

Rule 12(f)- Motion to Strike:
Allows party to removes “redundant, immaterial, impertinent, or scandalous matter” in a pleading, including nasty remarks or excessive details

Question 30

PLEADINGS
What is a 12 (b)(6) Motion?*

Answer 30

(6) failure to state a claim upon which relief can be granted;

*Thus attack on the legal sufficiency of the complaint.

*“A court must assume that all of the factual allegations of the complaint are true.

**NO EVIDENCE (That’s the difference between this and summary judgment)

“Dismissal is appropriate if the complaint does not state a claim that is ‘plausible on its face, in that the facial plausibility is when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”

Question 31

PLEADINGS
What can the Plaintiff do if he needs to fix his complaint/ a response to a motion to dismiss (+Timing) ?*

Answer 31

Rule 15(a)- Amendment
a P can amend their complaint ONCE up to 21 days after complaint is submitted OR 21 days after motion is served.

In all other cases (for the second+ ammendment) a party may amend its pleading only with the opposing party’s written consent or the court’s leave.

*If you do not raise an affirmative defense *8(c) in your answer it is waived- but if you fix this in a amendment it can be added (as long as you do not wait too long)

Question 32

PLEADINGS
What if the Plaintiff wants to add a new claim to their amended claim, can they do that?*

Answer 32

Rule 15(c)(1)(B) Relation Back Doctrine:
Statute of limitations bars a new claim in the amended complaint unless the amended complaint relates back to the date of the original complaint. An amendment relates back to the original ruling complaint when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading.

Question 33

PLEADINGS
What can be sanctioned during pleadings?*

Answer 33

Rule 11
(a) Everything must be signed

(b) this signature certifies that…(1)You’re not doing it for an improper purpose. (2) Whatever you’re arguing, it’s not frivolous. (3) You think you will be able to get evidentiary support in discovery.

(c)(1) If ^ was violated then the party can file a sanction
(c)(2) This sanction motion must be submitted on its own and you must give the other party 21 days notice to “fix”, THEN you can file
(c)(3) The court can also file sanctions on its own initiative

Question 34

PLEADINGS
Can you file an answer then a motion?

Answer 34

No a motion must ALWAYS be filed first

Question 35

PLEADINGS
Can the plaintiff amend before the defendant answers/motions?

Answer 35

Yes, the P can amend (following amendment rules) before the defendant takes action

Question 36

PLEADINGS
What happens if a motion gets denied?

Answer 36

The defendant has 14 days to file an answer

Question 37

PLEADINGS
What happens if a 12(b)(1),(2) or (3) is granted?

Answer 37

The plaintiff can re file in the correct court. (They can also appeal after final judgement)

Question 38

PLEADINGS
What happens if a 12(6) is granted?

Answer 38

The plaintiff cannot re file anywhere again! (But They can also appeal after final judgement)

Question 39

DISCOVERY
What is the process of discovery?*

Answer 39

1. Conference of the Parties – Rule 26(f)
2. Initial Disclosures – Rule 26(a)
3. Scheduling – Rule 16(b)
   o The judge will issued a scheduling order
4. Discovery Tools – Rules 26 -35
5. Pre-trial Disclosures – Rule 26(a)(3)(A)
6. Final Pretrial Conference & Order – Rule 16(e)

Question 40

DISCOVERY
What are the main discovery tools and their details?*

Answer 40

Rule 34 Production
o Tangible stuff
o Non Parties subpoena RULE 45

Rule 33 Interrogatories
o 25 written questions
o RELEVANT ONLY
o Parties ONLY

Rule 36 Requests for Admission
o unlim questions - admit/deny
o No Revenecy issue
o Parties ONLY

Rule 30 Depositions
o 10, 1 day/7 hours
o Non Parties subpoena RULE 45

Rule 35 Physical/Mental Examinations:
o when it is in controversy
o Parties ONLY

Question 41

DISCOVERY
What are is the scope of discovery/what kind of things can the parties obtain?

Answer 41

Rule 26(b)(1):
“Parties may obtain discovery regarding any nonprivileged matter that is (1)relevant to any party’s claim or defense and (2) proportional to the needs of the case….”

Question 42

DISCOVERY
How do you determine Relevancy?

Answer 42

It Must prove or disprove something that matters- reading the law in question

Question 43

DISCOVERY
How do you determine Proportional?

Answer 43

Use the following factors
1. Importance of the issue at stake
2. Amount in controversy
3. Parties access to relevant information
4. Parties resources
5. Importance of discovery in resolving the issue
6. Burden/expense outweigh discovery benefit?

I.A.P.P.I.B

Question 44

DISCOVERY
Can the courts restrict discovery?*

Answer 44

Rule 26(b)(2)(C)
The court (motion or on its own) must limit frequency or extent of discovery if it is
(i) unreasonably cumulative or duplicative, or can be obtained in less expensive and less burdensome ways;
(ii) if the party seeking discovery had ample opportunity to obtain the info by discovery;
(iii) proposed discovery is outside of scope permitted by Rule 26(b)(1).

Question 45

DISCOVERY
Can the parties restrict/protect discovery?*

Answer 45

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

Question 46

DISCOVERY
What types of Witnesses are there?

Answer 46

(1) Fact Witness: testifies about their relationship to an incident
(2) Expert Witness: testifies about their professional knowledge and opinions
* Need court ruling that this person is an expert

Question 47

DISCOVERY
What is the process of using expert testimony?*

Answer 47

Rule 26(a)(2) Disclosure of Expert Testimony
In general, a party must disclose to the other party the identities of any witness it may use at trial

Step 1: Expert produces a Rule: 26(a)(2)(B) written report

Step 2: Opposing counsel may depose the expert Rule 26(b)(4)(A)

Question 48

DISCOVERY
Can your adversaries use information from your expert testimony?*

Answer 48

Rule 26(b)(D)(4)- Party cannot usually seek information from adversary’s expert unless under exceptions circumstances (think banana boat)

Question 49

DISCOVERY
What is a discovery sanction?*

Answer 49

Rule 26(g)
(1) Everything must be signed by attorney.
This certifies that the information and belief formed is: complete and correct, no frivolous argument, not interposed for any improper purpose, neither unreasonable nor unduly burdensome

(3) If a certification violates this rule, a motion can be filed or the court on its own can impose sanctions

Question 50

DISCOVERY
What are some types of discovery sanction?*

Answer 50

Rule 37(a)(1) an order to compel production

Rule 37 (a)(3) Failing to do something in 26(a) then they can move to compel

Rule 37 (b)(2) “There are many Possible Sanctions including”
o Striking pleadings
o Dismiss the action or proceeding in whole
o Rendering default judgment
o Treating as contempt of court the failure to obey any order except order to submit physical/mental examination.

Question 51

DISCOVERY
When is Default Judgment OK under Rule 37?

Answer 51

(1) Willfulness or bad faith = Shown by repeated defiance of court orders

(2) History of noncompliance = Shown by deficient responses, lack of diligence, pending action and failure
to respond to court orders

(3) Effectiveness of lesser sanctions = Lesser sanctions can include: “order compelling discovery, holding
a party in contempt, and imposing a fine.” partial compliance is not
sufficient

(4) Prior warnings of sanctions to noncompliant party = Written warnings

(5) Client’s complicity = Did the client responded in interrogatories, did they sign them, did they provide
all documents and record *not always in consideration.

(6) Prejudice to moving party. = Delay, Duration of efforts, hindering ability to litigation.

Question 52

DISCOVERY
Can you sanction for Failure to persevere Electronically stored information?

Answer 52

Yes if they did not place a litigation hold then they can be sanctioned for spoliation.

Spoliation: destruction or significant alteration of evidence, or failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. Judge has discretion in sanctioning for spoliation. Elements to establish….

1. party in control of evidence has duty to preserve;
2. culpable state of mind; and
3. destroyed evidence was relevant to party’s claim or defense.

Question 53

DISCOVERY
What does a party need to do with their electronic documents if they reasonably anticipated litigation?

Answer 53

Once a party reasonably anticipates litigation, they must: Stop routine document destruction policy & place a “litigation hold”

Litigation hold is…
1. Identify all potentially relevant info and place it on hold (not necessarily everything, you determine what’s relevant).
2. Identify client’s documentation retention policy/data retention architecture.
3. Speak with client’s IT personally about backup procedures and how the client’s data recycling policy works.
4. Speak with key players in litigation – where/how do they store info?
5. Reissue notice of litigation hold (remind client periodically) to ensure discoverable info is preserve

Question 54

SUMMARY JUDGEMENT
What is summary judgement?*

Answer 54

RULE 56(a)
A party may move for summary judgment, identifying each claim or defense – or the part of each claim or defense – on WHICH summary judgment is sought. (specifically what they want)

“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.”

Question 55

SUMMARY JUDGEMENT
If you move for summery judgment can you be granted part?

Answer 55

If you move for all, the judge can still grant SJ in part.

Question 56

SUMMARY JUDGEMENT
What is Moving in part?

Answer 56

Moving in part means to get some claims dismissed but not all claims.

Question 57

SUMMARY JUDGEMENT
Who burdens the dispute when moving for summary judgement?

Answer 57

Burdens:
Movant = no genuine dispute as to any material fact
Nonmovant = there is a genuine dispute as to any material fact

Question 58

SUMMARY JUDGEMENT
What is a material fact?

Answer 58

Material fact = a fact is material if it might affect the outcome of the lawsuit under the governing rule

Question 59

SUMMARY JUDGEMENT
When can summary judgement be filed?

Answer 59

Rule 56(b) – Time to File.
Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.

Question 60

SUMMARY JUDGEMENT
How to claim summary judgement?*

Answer 60

Think about it like a trial on paper
Rule 56(c)(1) – you must be Supporting every Factual assertion with evidence.
(A) Citing to discovery…
(B) …that shows the absence or presence of a genuine dispute

56(c)(3) If you don’t cite it then the court doesn’t NEED to look for it.

56(4)
An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
*This could be a deposition
*Can NOT just be the Lawyers complaint for example

THESE NEED FACTS

Question 61

SUMMARY JUDGEMENT
How to respond to a summary judgement?*

Answer 61

If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials – including the facts considered
undisputed – show that the movant is entitled to it; OR
(4) issue any other appropriate order.

Find evidence that shows that THERE IS a genuine dispute. if you do not do this the court will just assume there is NO dispute.
You would do what you can to show “No this witness says the opposite” “There is another story of events”

Question 62

What happens when filing a rule 12 motion, matters outside the pleatingings are presented like evidence?

Answer 62

That motion turns into a rule 56 summary judgememnt

Question 63

SUMMARY JUDGEMENT
Does evidence for a Summary judegment motion need to be admissible?

Answer 63

No it doesn’t

Question 64

TRIAL
What is a Federal Statute on Jury Pools?

Answer 64

“Litigants.. entitled to trial by jury shall have the right to … juries selected at random from a fair cross section of the community…” 28 USC § 1861.

Question 65

TRIAL
How is a Jury selected?

Answer 65

Voir Dire- Jury selection:
In essence, groups of jurors are called, asked questions about them sleves

Question 66

TRIAL
What are the two ways to challenge Jurrors?

Answer 66

(1) A “For Cause” Challenge= You have a reason you don’t want them (usually claiming they are unfit to serve)

(2) Peremptory Challenge= You don’t have a reason you don’t want them
*In Federal court: each party has 3 peremptory challenges.

*Can’t be used against: sex, age, nationality (Baston’s Challenge)

Question 67

TRIAL
What is the order of Trial?

Answer 67

1) Jury Selection - Voir Dire
2) Opening Statements
3) Plaintiff Presents their Case (witnesses, exhibits, etc.)
4) Plaintiff rests once finished presenting evidence/witnesses.
5) Defendant Presents their Case.
6) Defendant Rests.
7) Parties May Make Any Pre-Verdict Motions (Rule 50a
8) Closing Arguments.
9) Jury Instructions (Rule 51-parties can submit their own jury instructions to the court; court may use them, may not.
10) Jury Deliberations
11) Verdict
12) Post-Trial Motions (renewing Rule 50 motion, typically)
13) Judgment
14) Appeal- if any

Question 68

TRIAL
What do you do if you think the jury has NO legally sufficient basis to find for that party?*

Answer 68

RULE 50 Judgment as a matter of law
(“As a matter of law i win- they didnt show a case otherwise”)

STEP 1
Rule 50(a): after a party has FULLY presented their case on an issue, a party may move for judgment as a matter of law, arguing that a jury has NO legally sufficient basis to find for that party.
o Rule 50(a) is known as a “directed verdict.”
Before jury Verdict

STEP 2
Rule 50(b): After the Rule 50(a) motion is denied, and a jury makes a determination, a party may make a RENEWED motion for judgment as a matter of law (and can seek a new trial under Rule 59).
After jury verdict

*Even though 50(a) usually denied- you need to file it to be able to file a 50(b)- so always file

Question 69

TRIAL
How should courts resolve a rule 50 motion?

Answer 69

The court considers the evidence in the light most favorable to the non-moving party and should grant [the motion] only where the evidence so strongly and so favorably points in the favor of the moving party that reasonable people could not arrive at a contrary verdict.