Civ pro review

Question 1

Grounds for a preliminary injunction

Answer 1

• Movant is likely to succeed on the merits
• Movant is likely to suffer irreparable harm in absence of relief
• Balance of equities favor movant and
• Injunction is in public’s best interests

Question 2

Final judgment rule

Answer 2

An appeal is only allowed after final judgment is entered

If there are multiple claims/parties, final judgment as to fewer than all claims/parties is appropriate if court expressly determines no justifiable reason for delay

Question 3

Exceptions to final judgment rule

Answer 3

Interlocutory appeals may be allowed for these cases
Injunctions
Certification by dist. court
Class action certification
Appointment of receiver
Admiralty
Collateral order doctrine
Bankruptcy cases
Mandamus
Patent infringement

(In certain circumstances, an appeal can be made prematurely)

Question 4

Federal rule analysis

Answer 4

For a fed ct. sitting in diversity, if it is unclear whether an issue is procedural or substantive, and there is a federal law directly the issue, the federal rule analysis must be used

Under the federal rule analysis, federal law will be applied if that law is arguably procedural and does not modify a substantive right

Question 5

Erie analysis

Answer 5

For a fed ct. sitting in diversity, if it is unclear whether an issue is procedural or substantive, and there are no federal laws directly addressing the issue, the Erie analysis must be used.

Under this analysis, if the issue is outcome determinative and there is no countervailing federal policy interest, state law will apply

Question 6

When is state law outcome determinative?

Answer 6

State law is outcome determinative if failing to apply state law would result in
- Forum shopping (litigants would be encouraged to sue in federal court to take advantage of federal benefits) or
- Inequitable administration of the law (the application of different rules in federal and state court would cause unfair outcomes)

Question 7

Joinder of alleged tortfeasors

Answer 7

Alleged tortfeasors facing joint and several liability are not required parties because
- complete relief can be granted in their absence
- the tortfeasors will not be subjected to multiple or inconsistent obligations; and
- the absent tortfeasores can adequately protect their interests in a future action

Question 8

Test to determine whether an absent party is indispensible

3 steps

Answer 8

The party is indispensible if:
1. Complete relief cannot be granted to the existing parties without that parties presence
2. The party’s absence will subject existing parties to a substantial risk of multiple or inconsistent obligations; or
3. The party’s absence will prejudice their ability to protect an interest related to the suit

Question 9

Ordering a mental or physical examination

Answer 9

The court where the lawsuit is pending may order a party to undergo physical/mental examination by a licensed/certified examiner. This order is valid when
- The party’s mental/physical condition is in controversy
- The motion for the order is based on good cause (cannot be easily obtained by other means)
- The order provides notice by specifying the time, manner, person, etc. who will perform the exam

Question 10

Two dismissal rule

Answer 10

A voluntary dismissal is with prejudice if the plaintiff voluntarily dismissed
1. the first action in federal or state court without a court order; AND
2. the second action based on the same claim in federal court by filing a notice of dismissal

Question 11

Due process and notice

Answer 11

Due process requires that service reasonably apprise the defendant of the pending suit.

Question 12

Notice of suit if D’s identity and address are known

Answer 12

If D’s identity and address are known or obtainable through reasonable efforts, notice through personal service or some means likely to notify the D is required.

notice by publication likely is not OK for these situations

Question 13

What if a D did not personally receive notice and a judgment is entered against him?

Answer 13

Any absent D who does not personally receive notice may file a motion to set aside the judgment at any time within one year of the final judgment

Question 14

Where is venue proper if D is not a US resident

Answer 14

Venue is proper in any judicial district if the defendant is not a resident of the US

Question 15

What happens if the defendant does not deny an allegation related to the amount of damages sought by the plaintiff?

Answer 15

The failure to deny an allegation regarding damages does not deem them admitted and conclusively established

The fialure to deny generally results in the allegation being admitted, but the one exception to this rule is when it has to do with the amount of damages sought by P

Question 16

When must a party respond to an amended complaint

Answer 16

A response to an amended pleading must be made by the later of the following
- the time remaining to respond to the original pleading
- 14 days after service of the amended pleading

However, the court may shorten or extend these deadlines, and the response must be made according to any court-ordered deadline

Question 17

SMJ under the Class Action Fairness Act

Answer 17

Under CAFA, SMJ exists when
- The class contains at least 100 members
- Any class member is diverse from at least one defendant
- The amount in controversy exceeds $5 million when the member’s claims are aggregated

Question 18

Requirements for proposed class settlement to be valid

Answer 18

When settlement is proposed to the court
- Notice must be given to all class members who would be bound by it
- Any proposed settlement must be approved by the court after it holds a hearing and issues findings that the settlement is fair, resaonable, and adequate

Question 19

How to preseve a jury instruction error for appeal

Answer 19

To challenge a jury instruction on appeal, a party must preserve the issue at trial by timely objecting to the instruction on the record and stating the grounds for objection

Objection is timely if it is
- made promptly after learning that a jury instruction has been or will be given OR
- That a request for a jury instruction has been refused

Question 20

How to demand a jury trial on any triable issue

Answer 20

A party may demand a jury trial on any triable issue by
- serving the other parties with a written jury trial demand no later than 14 calendar days after the last pleading directed to that issue is served
- filing the jury demand within a reasonable amount of time of the demand

Question 21

Options for the court when jury verdict is not unanimous

Answer 21

If a poll reveals that a jury verdict is not unanimous, the court can either order a new trial OR direct the jury to deliberate further

Question 22

What time frame must a motion for JMOL be renewed within

Answer 22

The JMOL can be renewed within 28 days after the entry of judgment to seek to overturn an adverse verdict

Question 23

How can a court correct a mistake in judgment, order, or other part of record

with regard to appeals

Answer 23

Before an appeal is docketed, a district court can correct a mistake in judgment on its own initiative or pusuant to a party’s motion

BUT after an appeal is docketed, the district court can correct the mistake only with the appellate court’s leave

Question 24

Additur (raising jury award) in federal courts

Answer 24

If a fed court rules that damages are inadequate, they can order a new trial

HOWEVER, the court may not give the opposing party the option to avoid a new trial by agreeing to an increase in the amount of damages (called an additur)

Additurs are never allowed in federal court

Remitturs are allowed, but that’s the ct trimming the excess

Question 25

Who can enter a default judgment?

Answer 25

The court or a clerk

Question 26

When must a clerk enter a default judgment?

Answer 26

The clerk must enter a default judgment when
- the plaintiff’s claim is for a sum certain OR a sum that can be made certain by calculation
- the plaintiff’s request for default judgment includes an affidavit establishing the amount due
- the defendant failed to appear
- the defendant is not legally incompetent or a minor

Question 27

Right to jury trial and equitable claims

Answer 27

The right to a jury trial only applies to legal claims (ones with a monetary remedy)

this right does not apply to equitable claims, which seek a nonmonetary remedy

for legal claims AIC must exceed $20 too

Question 28

Issues that are always substantive

For COL purposes

Answer 28

• statute of limitations
• the applicable burden of proof
• elements of a claim or defense

Question 29

Claim preclusion

aka res judicata

Answer 29

Claim preclusion provides that a valid final judgment on the merits prevents the identical parties from religigating identical claims

Question 30

When are claims identical?

Answer 30

Claims are identical if they
- arise from the same transaction or occurence; and
- could have been raised in the first action because the claim existed and could have been joined

Question 31

Factors in determining whether a claim arises out of the same transaction or occurrence

Answer 31

Courts consider factors such as
- whether the facts are related in time, space, origin, or motivation
- whether the facts form a convenient trial unit and
- whether treating the facts as a unit conforms to the parties expectations

Question 32

When is service by publication permitted?

Answer 32

Service by publication is permitted only when the defendant’s identity or address are unknown and unobtainable

Question 33

3 kinds of class action

Answer 33

1. Prejudicial risk
2. Final equitable relief
3. Common questions of law

Question 34

Prejudicial risk class actions

Answer 34

A case is suitable as a class action if there is a prejudicial risk to parties or absent class members if the cases are separate actions

Question 35

Final equitable relief class actions

Answer 35

A case is suitable as a class action is final equitable relief is appropriate because opposing party’s actions apply to the entire class

Question 36

Common question class action

Answer 36

A case is suitable as a class action if common questions of law or fact predominate and class action is the best method to resolve dispute

Question 37

What should a federal court do if it has JDX and a similar case is pending in state court?

Answer 37

A federal court generally must adjudicate a suit over which it has SMJ, even when a similar action is pending in state court.

There are exceptions, however, that would allow a federal court to abstain from hearing a case in this situation

Question 38

Pullman exception

abstention

Answer 38

Fed court can abstain if resolution of unsettled law in state court would moot the federal constitutional issue

Question 39

Buford exception

abstention

Answer 39

Fed court can abstain if injunction or declaratory judgment would interfere with complex state regulatory scheme that serves an important state policy and provides timely and adequate judicial review

Question 40

Colorado river exception

abstention

Answer 40

A fed court may abstain if pending state proceeding involving substantially same parties and issues presents exceptional circumstances that justify conserving judicial resources

Question 41

Younger exception

Abstention

Answer 41

Injunction or declaratory judgment would interfere with pending state proceeding that involves important state interest and provides adequate opportunity to litigate federal claims.

Question 42

How a court should consider a MSJ

Answer 42

When considering a motion for summary judgment, the court must
1. construe all evidence in light most favorable to the nonmovant and
2. resolve all doubts in favor of the nonmovant

Question 43

Safe harbor rule

Answer 43

When sanction proceedings are initiated by a party’s motion, the safe harbor rule requires the party serving the motion to refrain from filing it for 21 days after serving ti to allow any violation to be corrected

Question 44

General verdict with special interrogatories

Answer 44

In a general verdict with special interrogatories, the jury decides which party should prevail and provides answers to questions on each factual issue

Question 45

What if verdict and answers are inconsistent on general verdict with special interrogatories?

Answer 45

If the verdict and answers are inconsistent, the judge must
1. order a new trial
2. direct the jury to further consider its answers and verdict or
3. enter a judgment consistent with the answers

Question 46

When is an involuntary dismissal without prejudice?

Answer 46

An involuntary dismissal is without prejudice when based on
- lack of JDX
- improper venue
- failure to join an indipensable party

Question 47

Can a party aggregate unrelated claims against a single D to meet the AIC requirement?

Answer 47

YES!! A party may join as many claims as it has against an opposing party in federal court – even if the claims are unrelated – provided that SMJ is satisfied

(for diversity, SMJ would be satisfied if parties are completely diverse and AIC is over 75k.)

Question 48

Where is venue prioer under the Federal Tort Claims Act?

Answer 48

For claims under the Federal Tort Claims Act, venue is proper only in the judicial district where the plaintiff resides or where the act or omission occurred

Question 49

Where is venue proper if suing a foreign government?

Answer 49

• where substantial events occured or property is located; or
• Federal district court of Washington DC

Question 50

How long does a D have to return a P’s request for waiver of service?

Answer 50

A request for waiver of service must give a D a reasonable time of at least 30 days after the request was sent to return the waiver

Question 51

When may a P assert a claim against a third party added by impleader

Answer 51

A P may assert their own claim against a third party D only if that claim
- arises out of the same transaction or occurrence that is the subject matter of the plaintiff’s original claim; and
- satisfies original subject matter JDX on its own

Question 52

When is supplemental JDX barred when original claim is based on diversity JDX

Answer 52

When the original claim is based on diversity JDX, supplemental JDX is barred if the supplemental claim
- is made by existing plaintiffs against parties added through joinder, intervention, or impleader or persons seeking to join as plaintiffs through compulsory joinder or intervention and
- would violate the requirements of diversity JDX

Question 53

Exception to final judgment rule for district court certification

Answer 53

An exception to the final judgment rule arises when a district court certifies an order for interlocutory appeal by stating in writing that
- there is a substantial difference of opinion on a controlling quesiton of law and
- an immediate appeal may materially advance the ultimate termination of the litigation

Question 54

When a district court certifies an order for appeal, how soon must the party apply to the appellate court?

Answer 54

When a district court certifies an order for appeal, a party must apply to the appellate court within 10 days after entry of the order to appeal it

Question 55

When are jury instructions usually due?

if the parties request them

Answer 55

These requests can be filed before or at the close of evidence unless the court sets an earlier, reasonable deadline

Question 56

In what situations may a request for jury instructions be filed after the close of evidence

Answer 56

A request may be filed after the close of evidence if
- the request relates to an issue the party could not have reasonably anticipated by the deadline or
- the court permits a late submission that relates to any issue

Question 57

Proper venue when suing federal officer/employee in their individual capacity

Answer 57

When an officer or employee is sued in their individual capacity, regular venue rules apply

Question 58

Proper venue when suing federal officer/employee in their official capacity

Answer 58

When sued in their official capacity or under color of legal authority, venue is proper only where
- any D resides
- a substantial portion of the events giving rise to the suit occurred or
- where the P resides, if no real property is involved

Question 59

Peremptory challenges when there are multiple Ps or Ds

Answer 59

In an action involving multiple Ps or Ds, the court may consider them as a single party entitled to three peremptory challenges or grant more than three peremptory challenges and permit them to be exercised separately or jointly

Question 60

Transferring venue for convenience

Answer 60

A court with proper venue can transfer venue for convenience of the parties and witnesses and in the interests of justice to
1. any judicial district where suit could have originally been brought or
2. to which all the parties have consented

Question 61

Forum non conveniens

Answer 61

This doctrine allows a federal court to dismiss or stay a case – even when venue is proper in that court – if a state or foreign judicial system is better suited to hear that dispute

CL doctrine

Question 62

Standard of review for judge’s finding of fact

Answer 62

Clear error – where a judge’s findings of fact will be reversed only if they were clearly erroneous such that no reasonable judge would have made them

standard with high deference

Question 63

Standard of review for judge’s finding of law

Answer 63

de novo – where a judge’s conclusions of law will be reversed if the appellate court reasonably believes the judge misinterpreted the applicable law

No deference

Question 64

When may a TRO be issued without hearing or notice to the adverse party?

Answer 64

• the movant can establish under written oath that they will suffer immediate and irreparable harm before the nonmovant can be heard
• the movant’s attorney certifies in writing any efforts made to give notice and the reasons why notice should not be required

Question 65

Requirements for statutory interpleader

Answer 65

• SMJ (AIC at least $500 and minimal diversity between at least 2 claimants)
• PJ (exists over any claimant served with process anywhere in the US)
• venue (proper in any district where a claimant resides
• deposit (stakeholder must deposit property at issue with court or post a bond in the amount determined by the court)

Question 66

Can multiple Ps aggregate their claims against a single D?

Answer 66

• Generally, no. In a diversity case, the Ps each need to meet the AIC requirement
• Multiple Ps can only aggregate their claims against a single D if they are enforcing title which they have an undivided interest in.
• The above ^ exception is really narrow (think JTs enforcing their right to property)

Question 67

Is a statement of SMJ that says “the parties are residents of different states”?

Answer 67

• No. For a court to have JDX based on diversity , no P can be a citizen, not resident of the same state as a D
• so saying that a court has SMJ because of residency instead of citizenship is not a proper statement of JDX

Question 68

Treating a MTD as an MSJ

Answer 68

• in ruling on a motion to dismiss for failure to state a claim, when the D attaches materials outside the pleadings to the motion, the court must treat the motion as a MSJ if they consider those other pleadings
• even if the D hasn’t submitted an answer, the court can still treat an MTD as an MSJ if the MTD is accompanied by materials outside pleadings and court considers those materials in making their ruling

Question 69

Generally, what can a court consider in deciding on an MTD?

Answer 69

• generally, the court can consider only the allegations in the complaint, any exhibits attached to it, and any matters subject to judicial notice.
• when materials outside the pleading are attached to the MTD, the court may treat it as an MSJ if they consider those additional materials

Question 70

Prerequisites for R37 sanctions

Answer 70

• Generally, attempting to obtain evidence from the P without a court order and making a motion to compel are prerequisites to obtaining sanctions under R37.
• Expenses cannot be awarded if the movant failed to make a good faith effort to secure the information before filing the motion

Question 71

Standard for ordering a physical or mental examination

Answer 71

• if a physical or mental condition is in controversy, the court may order the party to submit to examination by a suitably licensed or certified examiner.
• the order can only be made upon motion for good cause shown

Question 72

Requirements for identical parties for claim preclusion

Answer 72

• for claim preclusion to apply, claimant and D must be the same and in the same roles
• parties who are successors in interest (i.e., in privity of estate with) the parties to the prior action can count as being the same parties

Question 73

Does state or federal law determine the effects of res judicata of a judgment?

Answer 73

Federal law determines the effects under the rules of res judicata of a judgment of a federal court

Question 74

Federal common law rule on which law governs the claim-preclusive effect of a fed ct. sitting in diversity

Answer 74

• Federal common law requires that the claim preclusive effect of a judgment by a federal court sitting in diversity be govened by the law of the federal court’s forum state, unless the state law is incompatible with federal interests