Civil Procedure

Question 1

Personal Jurisdiction: Intro

Answer 1

The court must have jurisdiction over the specific defendant.

PJ can be specific or general.

Question 2

Personal Jurisdiction: General

Answer 2

1. Consent
   - Express: defendant agrees
   - Implied: defendant fails to object to PJ in their first response.

MBE: Defendant must respond within 21 days of formal service (60 if he waives). He has 21 days to amend their answer (not pre-answer motion).

MI: Defendant must respond within 21 days of personal in-state service, or 28 days if any other service. 14 days to amend pleading (not pre-answer motion).

2. Domicile
   - Person: where permanent home is and they intend to remain indefinitely
   - Corp: both place of incorporation and HQ (principal place of business)
   - Partner/LLC: domicile of members/partners
   - Administrators: domicile of the beneficiaries
3. Presence: the defendant is served while present in the state, even if only there briefly (unless he was coerced to go to the state, or is served in a court).

Question 3

Personal Jurisdiction: Specific

Answer 3

Jurisdiction must be constitutional under state and federal constitution.

State: Long-Arm Statute (MI)

• Tort: act/effects were in MI
• Property: own, use, possess property in MI
• K: for services/materials to be furnished in MI
• Transaction of any business from the lawsuit in MI

U.S. Constitution
The defendant must be engaged in such minimum contacts that it would not offend traditional notions of fair play and substantial justice.
- Key Q: Did the defendant purposely avail themselves of the benefits and protections of the state?

O’Connor View: mere awareness goods will end up in the stream of commerce is not enough. There must be clearer evidence (i.e., ads in/targeting the state).

Question 4

How do you challenge PJ?

Answer 4

Direct Attack: appear in action and ask court to dismiss it.

Collateral Attack: ignore the suit entirely and challenge it when plaintiff tries to enforce the judgment.

• Benefit: you do not have to pay costs of travelling and fighting it
• Negative: you lose the right to challenge it if the court finds it is enforceable.

Question 5

Subject Matter Jurisdiction

Answer 5

1. Federal Question
   - As part of well-pleaded complaint
   - Federal defense is not enough
2. Diversity Jurisdiction
   A. Plaintiffs completely diverse from
   B. AIC exceeds $75,000
   - Met unless there appears to be a legal certainty the claim is actually worth less.
   - Plaintiff can aggregate claims against one defendant (not multiple)
   - Multiple plaintiffs cannot aggregate claims to pass $75k
3. Supplemental Jurisdiction
   - When court has JDX over one claim but not another
   - Federal court can use supplemental jurisdiction if both claims arise out of a common nucleus of operative fact.
   - Exception: If preliminary JDX is diversity, it cannot use supplemental jurisdiction to bring in a non-diverse party.

Question 6

Jurisdiction of MI Courts

Answer 6

If claim is filed in wrong court, a motion for summary disposition based on a lack of SMJ can be brought at any time.

District Court: claims $25,000 or less; misdemeanors

Circuit Court: claims over $25,000; felonies; appeals from district courts

Court of Claims: civil actions against Michigan and its agencies.

• No right to jury in these cases
• Ex: suit against Dep’t of Corrections

MI COA: JDX over all appeals from circuit court and court of claims

MI SC: Discretionary appellate JDX

Question 7

Removal

Answer 7

A defendant can remove an action from state to the federal court that geographically embraces it if they can show the case could have been brought to the federal court when it was filed.

Exception: Cannot remove a case if removal is based on diversity and you were sued in your state.

Exception to Exception: Fraudulent Joinder: If a non-diverse party was fraudulently joined to ensure removal could not happen.

Removal Procedure

1. All defendants must agree to removal (earlier-served defendants can consent to a later-served defendant’s removal).
2. Defendant must file notice of removal with federal district court, with a short and plain statement of grounds for removal, and be signed under Rule 11.

A. Notice must be filed w/i 30 days of when Defendant should have realized it was removable
B. A diversity case cannot be removed one year after case is commenced, unless plaintiff acted in bad faith to prevent plaintiffs from learning it was removable.

3. Notice must also be sent to the state court and other parties.

Once notice is filed, state court loses all power over the case (even if federal court has no JDX).

Question 8

Disputing Removal

Answer 8

1. Remand for lack of SMJ: Any time
2. Remand for improper removal procedure: within 30 days after removal, or else they waive the objection.

Court can remand case to state court once it resolves all the federal claims.

Question 9

MBE: Venue & Objecting to Venue

Answer 9

Venue is proper:

1. In a district where any defendant resides, if all defendants reside in same state
   - People: domicile
   - Aliens: can sue them anywhere
   - Corps: any district that has PJ
2. Where claim arose or property subject to the claim is located
3. If neither of above, where any defendant is subject to court’s PJ

Objections to Venue
Must be in first response

Question 10

MI: Venue & Objecting to Venue

Answer 10

Venue is proper where:

1. Any defendant resides, has a place of business, or registered office
2. If no defendant resides in MI, where any plaintiff resides, has a place of business, or a registered office.

Tort Claims: hierarchy

1. Where claim arose AND defendant resides, has a place of business, or registered office
2. Where claim arose AND plaintiff resides, has a place of business, or registered office
3. Where defendant AND plaintiff reside
   4a. Where any defendant resides
   4b. Where any plaintiff resides

Objecting
Defendant must object w/i 14 days of when they should have learned it was not the right venue.

Question 11

Transfer to Proper Venue

Answer 11

If wrong venue, federal court can dismiss or transfer to proper venue.

MI: If venue is improper, court MUST order change on motion of party, or MAY order on its own initiative after providing opportunity to be heard and notice.
- Change ordered at plaintiff’s cost

Question 12

Transfer to More Appropriate Forum

Answer 12

Federal court can transfer:

1. For convenience of parties and witnesses
2. And in interests of justice
   - Look where witnesses and evidence are

Law of transferring court will apply

Question 13

Forum Non Conveniens

Answer 13

Court can dismiss where interests of justice indicate it should be litigated in a different forum.

Look at witnesses, evidence, enforcing judgment, etc.

Question 14

Service:

1) Who must serve the complaint?
2) When does Defendant have to be served?

Answer 14

1. Anyone 18+ who is not a party. After serving, proof of service must be made by filing an affidavit with the court that sets for the manner service took place
2. Must be served within 90 days of filing complaint (91 in MI)

MBE: If not timely served, court will dismiss without prejudice or extend if there is good cause (you can refile)

MI: It is renewable for up to one year upon showing of due diligence.

Question 15

MBE: How do you serve people? Corporations?

Answer 15

People

1. Deliver to an agent
2. In accordance with state law
3. Personally
4. Domicile: leave with person of suitable age and discretion who resides in the same dwelling/usual place of abode.

Corporations

1. State law
2. Serve an officer or any authorized agent

Question 16

MI: How do you serve people? Corporations?

Answer 16

People

1. Personally
2. Registered Mail: send S&C via registered mail, return receipt requested, delivery restricted to addressee.
   - If D refuses mail, serve them personally

Corporations

1. Serve officer/resident agent
2. Serve director or trustee AND the principal office, by registered mail
3. If there is no resident agent, serve the corporation/officer AND the Bureau of Commercial Services, Corporate Division

Question 17

Objecting to Process/Service

Answer 17

MUST be raised in first responsive pleading

1. Objection to Process: what was served
2. Objecting to Service: manner of service

Question 18

Waving Service

Answer 18

Plaintiff asks by sending S&C, two copies of waiver form, and a prepaid means for returning form.

Plaintiff must give D 30 days after request was made to return waiver (60 days if outside of U.S.)

Benefit: Defendant gets 60 days instead of 21 to respond
- If he does not waive, he must pay costs of service

Question 19

Erie Doctrine

Answer 19

Substantive law: apply state court
Procedural law: apply federal court

Procedural Issues:
- Constitution, statute, rules of evidence/CP, judge/jury issues, bifurcation, class actions

Substantive issues:
- COL/SOL, elements of case, damages cap, burden of proof

Additur is NOT allowed by federal law (Remittur is).
- State law allows both

Question 20

Pleadings: Damages

Answer 20

General Damages: flow from wrong (do not need to be pled)

Special damages: do not flow from wrong (must be pled)

Question 21

Pleadings: Answers

Answer 21

1. Plead any affirmative defenses
2. Must answer each allegation in complaint by admitting, denying, or stating you lack knowledge.
   - If something is not denied, it is admitted
   - MI: You can also plead no contest, which has effect of admission

Question 22

Pleadings: Amendments

Answer 22

You can amend within 21 days of serving the pleading or receiving the answer (14 in MI)

After time expires, you can amend with:

1. Consent of other party
2. Court’s permission (will be granted when justice requires).

Defendant must file a new answer when an amendment is made (unless changes are minor).

Question 23

Pleadings: Amending if SOL passed

Answer 23

Adding Claims SOL Run On
If complaint was filed before SOL, and amending after SOL, it will be allowed as long as it relates back to original claim.

Adding New Parties
Relates back if:
1. The claim against the new party derives from the trnsx or occurrence as the original claim
2. New party had notice of the action within the time for service (90 or 91 days)
3. AND the new party had knowledge that, but for a mistake to identity, the original action would have been filed against them.
- Generally allowed for Scrivener’s Error

When is SOL tolled?
MBE: Filing complaint (not service)

MI: Depends:

• Medmal: 6 months to 2 years
• Libel/Slander: 1 year
• Intentional Torts: 2 years
• Neg, PL: 3 years
• UCC contract: 4 years
• Other contracts: 6 years

Question 24

Joinder: General Rule

Answer 24

Through Joinder, a party seeking relief can join all claims it has against a party, regardless of their connection

Question 25

Joinder: Counterclaims

Answer 25

Permissive: Does NOT derive out of the same transaction or occurrence (may be filed, but not required).

Compulsory: drives from same occurrence or transaction as the claim.

• MBE: Must be brought (or it’s lost)
• MI: CAN be brought, but if one is brought, all must be brought (or it’s lost).

Counterclaims only must be brought if the court has jurisdiction over the party.

Question 26

Joinder: Crossclaim

Answer 26

Claims between co-parties.

1. Must arise out of same transaction/occurrence
   - Do not need to be brought
2. Must be filed with answer or as amendment within the time period

Question 27

Joinder: Plaintiffs Joining Plaintiffs

Answer 27

Permissive Joinder: Plaintiffs can sue together if they:

1. Claim arises out of the same transaction or occurrence;
2. Claims involve a common question of fact or law; and
3. Plaintiffs seek relief jointly, severally, or in the alternative with respect to those claims.

Question 28

Joinder: Plaintiffs Suing Multiple Defendants

Answer 28

Plaintiff can sue multiple defendants in same suit if:

1. Assert right to relief jointly, severally, or in the alternative, with respect to
2. Claims arising out of same trnsx or occurrence; and
3. Their claims involve a common question of fact or law

Question 29

Joinder: Impleading

Answer 29

Defendant can implead a new claim against a new party if the new party may be liable to Defendant for some of the recovery Plaintiff gets.
- i.e., liability insurance

Must file:

1. Within 14 days (21 in MI) of serving answer; or
2. With leave of court

JDX:

• Court usually uses supplemental JDX over the new claim.
• 3P is not considered for venue
• 3P must be subject to court’s PJ

100-Mile Bulge Rule: if 3PD is served within 100 miles of court, even if in another state, it will constitute PJ.

(Not required to implead - you can seek indemnification later).

Question 30

Necessary Parties

Answer 30

An additional party should be brought in when:

1. Court cannot grant proper relief without them; or
2. Party has an interest in SM of litigation, and their ability to protect that interest will be impaired if they do not participate

Question 31

What if a necessary party cannot be joined?

Answer 31

i.e., lack of PJ, SMJ, etc.

Court must decide whether, in good conscience and equity, to dismiss the case or proceed.

Assess prejudice to parties, whether plaintiff can sue in a different court, etc.

Question 32

Intervention as of Right

Answer 32

A person can intervene as of right if:

1. They have an interest in SM of litigation
2. Disposition w/o them may impair their ability to protect that interest; and
3. Its interest is not adequately represented by the existing parties.

• Party must timely motion to intervene
• MI: Parties can stipulate to allow intervention

Question 33

Permissive Intervention

Answer 33

Court may allow a party to intervene if:

They have a claim that shares a common question of fact/law with the main action.

• Request must be timely
• $500 and minimal diversity (between any claimant) is enough.

Question 34

Motions that MUST come before your first response

Answer 34

1. Motion for more definite statement: pleading too vague

2. Motion to strike: if something was irrelevant, etc.

Question 35

Issues to Raise in First Response

Answer 35

1. Lack of PJ
2. Insufficient Process/Service
3. Improper Venue (MI: 14 days from when you should have realized it is wrong venue)

Question 36

Affirmative Defenses: When do you raise them? What are they?

Answer 36

Must be raised in first answer (does not need to be motion).

Res Judicata, SOL, defenses to negligence/contracts

Question 37

Motions you can raise any time

Answer 37

1. Failure to join necessary party
2. Judgment on pleadings
3. Failure to state valid claim
4. Lack of SMJ
5. MI: Motion for summary disposition based on government immunity (even if time in Scheduling Order expired)

Question 38

Failure to State Claim

Answer 38

Even if she’s right, it won’t get her relief.

Viewed in light most favorable to Plaintiff

Question 39

Motion for Summary Judgment/Disposition

Answer 39

Case/part is decided for one of the parties without a trial.

• MBE: filed anytime until 30 days after close of discovery (or w/ court’s permission)
• MI: allowed any time under scheduling order

Test: Moving party must produce evidence to show there is no genuine issue of material fact. Burden shifts to nonmovant to show there is a genuine issue of material fact.

• Reviewed in light most favorable to nonmovant
• Must be supported by affidavits, depositions, other documents.

Examples

• Signed affidavit may be enough to defeat MSJ
• Conflicting testimony might be enough

Not Examples

• Unsigned affidavit is not admissible
• Affidavits with hearsay cannot be used
• Evidence not submitted cannot be used

Question 40

Temporary Restraining Orders

Answer 40

Stopgap until court decides whether to grant a preliminary injunction.

Can be granted without notice if there is imminent danger of irreparable injury and you give reasons why notice should not be required.
- If issued without notice, a date for preliminary injunction hearing must be set for earliest date possible.

Lasts until the date the court sets - not to exceed 14 days (unless there is good cause).

Not immediately appealable, unless it has the effect of an injunction.

Question 41

Class Actions: Types and Requirements

Answer 41

1. Common question
2. Inconsistent Results
3. Injunctive Relief (common against city)

Requirements

1. Commonality: common issues of fact/law and common injuries
2. Adequacy: named plaintiffs and attorney can adequately represent the class, and the named plaintiffs’ interests won’t conflict with class’s
3. Numerosity: so numerous that joinder of all claims is impracticable (40 is enough)
4. Typicality: claims of named members are typical of the class
5. Superiority: class action is superior to alternative methods of adjudication, and the common issues predominates over individual issues

Question 42

Class Actions: PJ and Diversity

Answer 42

• PJ only needed for named members

- Diversity only needed for class members

Question 43

Class Actions: Notice (MBE)

Answer 43

Must state:

• Nature of the action
• Define class
• State claims, issues, defenses
• State right to opt out (and how to opt out)

Notice must be sent if settlement is binding.

Requires court permission to settle/dismiss

Question 44

Class Action Fairness Act

Answer 44

Diversity in Class Actions:

1. 100+ plaintiffs seeking > $5m
2. Any single plaintiff is diverse from any defendant

Any defendant can remove to federal court at any time

• Do not need all defendants to agree
• Court will decline if substantially all parties are in the same state and injuries occurred in that state

Question 45

MI Class Actions

Answer 45

Same requirements.

• Plaintiffs must move to certify class within 91 days of filing the complaint, and must provide notice to class
• Notice must be given to every class member at Plaintiff’s expense

Notice:

1. State nature of action
2. Right to opt out
3. Possible counterclaims
4. Possible financial consequences

Question 46

Discovery

Answer 46

Allows parties to preserve testimony and learn facts for trial. You can discover things that are relevant and unprivileged.

Includes discovering:

• Things for impeachment
• Things that would be inadmissible at trial.

Question 47

What do you seek if you don’t want something discovered?

Answer 47

You can seek a protective order, with notice, limiting discovery to protect someone from annoyance, embarrassment, oppression, or undue burden/expense

Question 48

Pre-Trial Conferences

Answer 48

Meeting of Parties

• Parties meet 21 days before scheduling conference to discuss settlement, claims, and discovery plan
• Discovery plan must be outlined in writing within 14 days after meeting of the parties
• Cannot seek discovery before the meeting

Scheduling Conference

• Court must enter scheduling order within 90 days after defendant was served, or 60 days of when defendant appears (whichever is earlier)
• The order will limit time for joinder, motions, discovery, etc.
• Can be modified with good cause

Question 49

Automatic Disclosures

Answer 49

1. Initial Disclosures
2. Expert Disclosures
3. Pre-Trial Disclosures

Question 50

Initial Disclosures

Answer 50

Parties must disclose, within 14 days of their meeting:

1. Damages computation and support
2. Copies of insurance agreements under which an insurer may be liable
3. Names/addresses of all potential supporting witnesses (not including those only for impeachment)
4. Copies and descriptions of relevant documents (not including those only for impeachment)

Michigan’s Initial Disclosures

1. Facts/legal claims
2. Information of anyone with discoverable info
3. Copies of all things in custody that can support the claims/defenses
4. Computation of all damages
5. Copy of pertinent parts of insurance, surety, etc.
6. Anticipated areas of expert testimony

Time in MI:

• Party that files claim must serve initial disclosures within 14 days of OP filing answer
• Answering party must serve within 14 days of OP serving its disclosures, or within 28 days of filing its answer (whichever is later)

In MI, you cannot seek discovery until initial disclosures are served.

Question 51

Expert Disclosures

Answer 51

90 days before trial, parties must disclose:

1. Names of testifying experts
2. Report and bases of their opinions

• Testifying experts can be deposed
• Non-testifying experts do not need to be disclosed (nor interrogatories need be answered re: them)
• Factual witnesses can always be deposed

Question 52

Pre-Trial Disclosures

Answer 52

30 days before trial, parties must disclose:

1. Names and reports of experts
2. Names of witnesses to be called at trial
3. Documents and depositions they plan to offer

Party can object within 14 days of receiving the disclosure

Question 53

Interrogatories

Answer 53

List of questions sent to OP.

MBE: Can only send 25 (including subparts), but can get leave for more.
MI: Each party can send 20 to each party.

Answering party is obligated to investigate and give all information they can reasonably obtained.
- Answers must be signed

Question 54

Requests to Admit

Answer 54

Used to eliminate issues at trial. Deemed admitted if not denied or objected to.

Reasonable investigation is required. Admissions are binding at trial unless court orders otherwise.

Question 55

Depositions

Answer 55

Examination of a witness under oath, with a court reporter. Testimony is taken, and both sides can ask questions.

• Only thing that can be used on a nonparty other than subpoena.
• Fed: Up to 10 depositions per side; limited to 1 day, 7 hours.

Attorney Objections
Attorney can object to qualifications or competency of a witness, relevancy, and conduct.

Usually, still required to answer, unless:

1. Objection is based on privilege (If you fail to object in deposition, you don’t waive privilege for federal court, but you do in MI)
2. Questions asked in bad faith or that unreasonably annoy or embarrass

Question 56

Requests for Physical/Mental Examination

Answer 56

• Party can insist on a court order before undergoing an examination
• Court decides circumstances of exam
• Court will grant it upon good cause shown (i.e., plaintiff complains of injury)

Med exams cannot be used to impeach witness for health capacities.

Question 57

Electronic Discovery

Answer 57

Electronically stored info is discoverable (ESI).

Sanctions cannot be imposed if you delete ESI through routine good faith operation. But if you intentionally fail to stop automatic deletion, you will be sanctioned.

Court has two options:
1. Negligent destruction: order necessary damages
2. Intentional destruction:
A. Presume info was unfavourable to destroyer
B. Dismiss/enter DJ

Question 58

Discovery: Motion to Compel

Answer 58

If party fails to respond to discovery request, OP can motion to compel production.

Movant must show they made a good faith attempt to obtain the material from the party without the order.

• If movant wins, court can order costs/fees for motion
• Court can also enter DJ, dismiss action, etc. if failure was intentional

Question 59

Spoilation

Answer 59

A party should not destroy evidence if they have reason to know it might be relevant to case/upcoming case.

Sanctions: trial court can sanction - they have discretion (sanction, dismiss, exclude evidence, etc.)

Question 60

Rule 11 Sanctions

Answer 60

Every doc must be signed by attorney. By presenting paper, they certify it is proper, and is grounded in law or a non-frivolous argument for new law, to the best of their knowledge.

If a party violates Rule 11, the court can impose sanctions on the attorney, their firm, or the party (unless the party is represented).

Rule 11 Motion for Sanctions

• Before bringing it, movant must give nonmovant 21 days to correct/withdraw the paper
• Court can order the attorney, firm, or party to show cause for why they did not violate Rule 11

Michigan: Effect of Signature

• Similar effect to federal law
• However, sanctions SHALL be imposed for a rule violation (they cannot be avoided by withdrawing the paper).

Question 61

Default Judgment

Answer 61

Default: Clerk notes default in case if there has been no timely answer. This does not waive jury trial right.

The plaintiff will then still need to seek a default judgment as a default alone has no binding effect or consequences for the plaintiff. A default judgment will be entered upon motion of the plaintiff.

Default Judgment: Entered because defendant did not oppose the case. Has the effect of a judgment.
- Defendant cannot be a minor or incompetent

Clerk: can enter for a sum certain (supported by affidavit) without notice to OP

Court: can enter judgment in other cases if 7 days’ notice is given before entering judgment.
- Notice not needed if party did not file appearance

Question 62

Setting Aside DJ

Answer 62

Motion must be filed within 21 days
- MBE: good cause

In MI: Unless it lacks PJ, a default/DJ will only be set aside if you can show two things:

1. Good cause (to set it aside)
   A. Substantial defect in proceeding; or
   B. Valid excuse
2. A meritorious defense (supported by affidavit)
   - Affidavit contains evidence that:
   A. P cannot prove/D can disprove element of claim
   B. Ground for summary disposition
   C. P is relying on inadmissible evidence.

[The stronger the meritorious defense, the less good cause you will likely need.]

Question 63

What relief does a DJ get you?

Answer 63

MBE: Amount requested in complaint
MI: Even a higher amount, if notice is given to defaulting party.

Question 64

Plaintiff fails to argue the case or comply with orders

Answer 64

1. No Progress Dismissal (w/ prejudice)
2. Involuntary Dismissal (w/ prejudice unless otherwise stated)
   - For failing to comply with court orders

Question 65

Voluntary Dismissal

Answer 65

When the plaintiff voluntarily dismisses their own case.
- Can be filed if defendant has not answered, or with consent, otherwise leave is required.

• 1st dismissal is w/o prejudice
• 2nd dismissal is w/ prejudice: Plaintiff cannot refile case from same facts

Question 66

Jury Trials & Withdrawing a Request

Answer 66

7A preserves a right to a jury trial at common law where the AIC > $20 (for legal claims).

• MBE: within 14 days of a pleading
• MI: within 28 days of filing an answer/reply

Withdrawing Jury Trial:
All parties must consent

Question 67

Jury Selection & Polling Jury

Answer 67

Jury pool must not systematically exclude a group of people (but jury does not need to be diverse).

Voir Dire: lawyers and court ask questions to scope bias
Preemptory Challenges: each side gets 3 in a civil case to strike for any reason (not race/gender)
Striking for cause: if juror is interested/has bias, party can ask judge to strike them for cause (no limits)

Juries must begin with 6-12 people, unless some are excused for good cause.

Decisions must also be unanimous and returned by at least 6 yutes, unless parties agree otherwise.

After the jury’s verdict, but before they are discharged, the court MUST, on party’s request, or MAY, on own initiative, poll the jurors to:
- Determine if there was a lack of unanmity.
If there was, court can direct them to deliberate further or order a new trial.

Question 68

Jury Instructions

Answer 68

1. Inform parties of proposed instructions before
2. Give them a chance to object on record before giving instructions
3. Instruct jury any time before they’re discharged.

Objections to Instructions
- Must do so on record, stating grounds

Objection is timely if:

1. You object when judge asks you to; or
2. You were not informed before and object promptly after learning about issue

Errors in Instructions
- Plain errors: automatically appealable even if you did not object.

Question 69

Non-Jury Trial

Answer 69

Court must state findings separately.
- Court can amend its findings or make new ones within 28 days (MI: 21)

Reviewing court must give discretion to trial court’s preliminary matters.

Question 70

Setting Aside Jury Verdict

Answer 70

It may be set aside if:

1. Jury clearly did not follow instructions
2. Juror lied in voir dire
3. Juror considered improper evidence
4. Inconsistent findings
5. Jurors arrived at verdict at random

Will not be set aside for something harmless.

Question 71

Motions for Directed Verdict & Renewed Motions

Answer 71

Judgment as a matter of law.

When P rests case, D can bring it. When D rests case, both can bring it (if D did not earlier).

MBE Test: There is no substantial evidence to support a verdict for the nonmoving party.
- Viewed in light most favorable to nonmoving party.

MI Inquiry: No factual question exists upon which reasonable minds may differ

Renewed Motion for Judgment as Matter of Law

1. Party’s directed verdict was already denied
2. Party files new motion within 28 days of jury’s verdict (21 in MI)

Test: The evidence is insufficient to support the verdict.

Question 72

Motion for Relief from Judgment

Answer 72

Must be brought within 1 year of judgment (unless it would be inequitable to let it stand).

You will obtain relief if you can show:

1. Mistake, fraud, etc.
2. New evidence that could not have been discovered until later
3. Any other reason that justifies it

Question 73

Motion for New Trial

Answer 73

Granted in two cases:

1. Errors in trial process tainted jury’s decision-making
2. Judge thinks jury’s decision is wrong and against great weight of evidence.
   - Court can consider witness credibility

Time:

• Requests must be made w/i 28 days of verdict being entered (MI: 21)
• Court can do it on its own

Question 74

What can be appealed & time for appeal?

Answer 74

1. Final judgments
   - Exceptions:
   A. Equitable relief/temporary remedies
   B. Interlocutory orders
   C. Final judgment on collateral matters (Attorney fees, etc.)
2. Motions for:
   A. Directed verdict
   B. Renewed motion for JML;
   C. New trial

Party must appeal within 30 days of entry of judgment, 60 if US agency is the party.

• Harmless error: no reversal
• Plain error: reversed even if not properly preserved

Question 75

Standard on Appeal

Answer 75

• Q of Law: de novo (no discretion)
• Q of Fact: clearly erroneous
• Trial court discretion: abuse of discretion (i.e., preliminary).

Question 76

MI Case Evaluation

Answer 76

Mandatory in Tort claims exceeding $10,000 and Med Mal Cases.

Sanctions for rejecting Case Eval

• If both accept, judgment is entered in that amount
• If a party (or both) reject, they must pay OP’s costs if the verdict is more favorable to OP than case eval.

More favorable: P gets 10% more; D owes 10% less

Sanctions are only against client, not attorney.

Question 77

Res Judicata

Answer 77

Must be raised in the first responsive pleading.

A claim that has been fully and fairly litigated to a final judgment on the merits cannot be re-litigated by the same parties.

1. Same claim
   - Any claim that could have been brought is precluded
   - MI: Are the same facts and evidence essential to both?
2. Same parties (or in privity)
3. Final judgment
4. On the merits
   - Does not include w/o prejudice, no PJ/SMJ/Venue

Question 78

Collateral Estoppel: Issue Preclusion

Answer 78

Bars issues that have been litigated from being re-litigated.

1. Same issue: exactly the same
2. Actual litigation: issues were actually raised and litigated (not just could have been)
   - Therefore, does not apply to DJ
3. Actually decided: in trial
4. Necessary: the decision on the issue was necessary to the court’s judgment

Defensive Non-Mutual Estoppel: permitted

• A sues B. A loses. A sues C for the same issue.
• C can raise non-mutual collateral estoppel to prevent A from trying again.

Offensive Non-Mutual Estoppel

• A sues B and wins. C sues B and uses collateral estoppel to prove her claim.
• Not allowed in MI. Court is very skeptical about it.