Civ procedure from practice test taken

Question 1

T or F , the nonmovant on a motion for summary judgment may submit an affidavit or declaration stating that more time is needed to take discovery before responding.

why or why not?

Answer 1

True

because the party bringing the motion for summary judgment must have conducted discovery AND/OR (i.e. submitted evidence to the court, following the applicable rules of evidence.

Question 2

What must the affidavit or declaration stating that more time is needed to take discovery specify?

If the court agrees what can it do?

Answer 2

The affidavit or declaration must specify what that discovery will be and how it will help in resisting the motion.

If the court agrees, it can deny the motion without prejudice or defer ruling on the motion until the nonmovant has had a fair chance to take the discovery specified.

Question 3

What is the rule concerning a Plaintiff voluntarily dismissing her claims once and reclaiming them later? What is the effect?

Answer 3

The rule is that a plaintiff may voluntarily dismiss her case once without prejudice by filing a notice of dismissal before the defendant serves answer or moves for summary judgment. Afterwards, the plaintiff’s case will be dismissed with prejudice (Rule 41(a)(1)(B) provides that a second voluntary dismissal of the same claim(s) operates as an adjudication on the merits).

Question 4

When may a JMOL be made?

Answer 4

A motion for judgment as a matter of law (JMOL) may be made at any time before the case is submitted to the jury.

After the verdict, a party can only renew a motion it made pre-verdict.

Question 5

How is the full faith and credit rule applicable from federal courts to state courts?

Answer 5

Federal courts must give full faith and credit to state-court judgments by giving a state-court judgment the same effect that the rendering state would give it.

Question 6

What must a party do to preserve an objection to a jury instruction?

Answer 6

To preserve an objection to a jury instruction, a party must object on the record, stating the grounds for the objection.

Question 7

Rule 51(d) expressly preserves plain error review even when a party has failed to preserve an objection to an instruction that was given. This option is the only option that has any chance of succeeding. However, plain error is very difficult to establish. What must the objecting party be able to prove?

Answer 7

the objecting party must prove that the error in the instruction affected the party’s substantial rights.

Question 8

When is a jury demand timely? also explain the last pleading

Answer 8

a jury demand is timely if it is made within 14 days after the last pleading directed to the issue for which a jury is sought.

Ordinarily, the last pleading directed to a plaintiff’s claim is the answer; therefore, the deadline for a plaintiff to make a jury demand is usually 14 days after the defendant serves the answer.

Question 9

the Supreme Court held that when both legal and equitable issues are presented in a case, a court must submit the _______ issues to the jury first and then the court can resolve any remaining __________ issues.

Answer 9

legal issues first then equitable issues

If any issues overlap, the court is bound by the jury’s resolution of the overlapping issues.

Question 10

In cases of court ordered default judgment, if the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with?

Answer 10

written notice of the application at least seven days before the default judgment hearing.

Question 11

Federal law governs transfers of venue.

Additionally, the Supreme Court has held that when there is a mandatory forum-selection clause, the action must be?

Answer 11

transferred to the indicated federal district unless there are compelling reasons to the contrary.

Question 12

Only certain decisions are immediately appealable while a case remains pending; these are known as?

Answer 12

“interlocutory appeals”

Question 13

a temporary restraining order TRO is not to exceed 14 days. If a TRO is extended beyond this time limit 28 days total, it may be treated as a _________ _________ the subject of an interlocutory appeal which can be immediately appealed.

Answer 13

preliminary injunction

Question 14

a court may relieve a party from a final judgment on the ground of? concerning the conduct of an opposing party

Answer 14

fraud, misrepresentation, or misconduct by an opposing party.

Question 15

T or F only the Defendant can remove a case to federal court

Answer 15

True

Question 16

an appellate court cannot set aside a trial judge’s findings of fact unless the findings are _______ __________ , giving due regard to the trial judge’s opportunity to determine witness credibility.

Answer 16

clearly erroneous

Question 17

Is the denial of summary judgment a collateral order? why or why not?

Answer 17

The denial of summary judgment is not a collateral order because it does not involve a final determination of a matter separable from the rights asserted in the action.

Question 18

T or F Appellate courts have jurisdiction only over the final decisions of the district courts.

Answer 18

True

Question 19

what law governs claim preclusive effect of a dismissal by a federal court sitting in diversity?

Answer 19

SCOTUS held that federal common law governs the claim-preclusive effect of a dismissal by a federal court sitting in diversity.

Question 20

what is required to establish general jurisdiction or for a D to “feel at home in a forum state?

Answer 20

To support general jurisdiction the D would have to have continuous, systematic, and substantial contacts with forum state sufficient for the “Defendant to feel at home?”

Question 21

explain full faith and credit standard that a federal court must give state court judgments

Answer 21

Federal courts must give full faith and credit to state-court judgments by giving a state-court judgment the same effect that the rendering state would give it.

eg. if state A does not allow non-mutual issue preclusion, and the state court decided, federal court must give full faith and credit to it.

Question 22

In cases of court ordered default judgment, if the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least _____ days before the default judgment hearing.

Answer 22

seven 7 days

Question 23

Supreme Court has held that when there is a mandatory forum-selection clause, the action must be transferred to the indicated federal district unless

Answer 23

there are compelling reasons to the contrary.

Question 24

an appellate court cannot set aside a trial judge’s findings of fact unless the findings are

Answer 24

clearly erroneous, giving due regard to the trial judge’s opportunity to determine witness credibility.

Question 25

permissive intervention

Answer 25

when a nonparty’s claim shares a common question of law or fact with an existing claim, the nonparty may intervene in the action.

Question 26

T or F To support general jurisdiction in a state, the defendant would have to have continuous, systematic, and substantial contacts

Answer 26

True

Question 27

What is the JMOL standard of review?

Answer 27

whether there is substantial evidence in the record supporting the verdict assuming the jury resolved all disputed issues in widow’s favor

Question 28

when can a JMOL be made?

Answer 28

a JMOL can be made anytime before the case is submitted to the jury

Question 29

when a case is tried to the court, who must find the facts specially and state the conclusions of law separately?

Answer 29

The judge

Question 30

What is the general rule regarding the appellate court’s jurisdiction over appeals?

Answer 30

The general rule is that the appellate court or court of appeals only has jurisdiction over final judgments .

eg. if a SJM is granted and terminates the action, then the appellate court can have jurisdiction

Question 31

when can interrogatories be served?

Answer 31

Interrogatories cannot be served until the parties have conferred to arrange for initial disclosure and prepare a discovery plan.

Question 32

T or F a non-moving party for summary judgment may submit an affidavit or declaration stating that more time is needed for discovery/

Answer 32

True