Civil Procedure

Question 1

HIGH

FEDERAL QUESTION JURISDICTION

Answer 1

A federal court MUST have SMJ in order to decide cases before it.

A federal court has SMJ under federal question jurisdiction if the complaint alleges a claim that arises under federal law.

Question 2

HIGH

WELL-PLEADED COMPLAINT RULE

Answer 2

For federal question jurisdiction to apply, the federal question MUST be presented on the face of the plaintiff’s complaint.

Raising a defense** or filing a **counterclaim under federal law does NOT trigger federal question jurisdiction.

Question 3

HIGH

DIVERSITY JURISDICTION

Answer 3

A federal court has SMJ under diversity jurisdiction if:

1. Complete Diversity is present - every citizenship represented on the plaintiff’s side of the case must be different than EVERY citizenship represented on the defendant’s side of the case; AND
2. The amount in controversy exceeds $75,000.

________________________________________

AIC Side Note:

(a) A claim for injunctive relief may be valued by the benefit to the plaintiff or the cost of compliance for the defendant.
(b) One plaintiff can aggregate all of her claims against one defendant to meet the AIC requirement. One plaintiff can also aggregate all of her claims against multiple defendants if the defendants are jointly liable.
(c) If there are multiple plaintiffs; generally, each plaintiff’s claim must meet the AIC requirement separately (unless supplemental jurisdiction applies).

Question 4

HIGH

INDIVIDUALS’ CITIZENSHIP

FOR DIVERSITY PURPOSES

Answer 4

For individuals, citizenship is determined by the individual’s state or country of domicile (i.e., the place of residence where the individual intends to remain indefinitely). An individual can only have one domicile at a time.

Question 5

HIGH

CORPORATIONS’ CITIZENSHIP

FOR DIVERSITY PURPOSES

Answer 5

Corporations hold dual citizenship:

1. The state or country of incorporation; AND
2. The state or country of its principal place of business (i.e., the “nerve center” - usually where corporate headquarters are located).

Question 6

HIGH

UNINCORPORATED ASSOCIATIONS’ CITIZENSHIP FOR DIVERSITY PURPOSES

Answer 6

Unincorporated associations and partnerships (e.g., unions, trade associations, partnerships, and limited partnerships) are considered a citizen of every state of which its members are citizens.

Question 7

HIGH

CLASS ACTIONS CITIZENSHIP

FOR DIVERSITY PURPOSES

Answer 7

For class actions, the citizenship of each named party in the class who are suing count for diversity purposes.

Class members that are not named may join without regard to citizenship.

Question 8

HIGH

SUPPLEMENTAL JURISDICTION

Answer 8

Supplemental jurisdiction allows a federal court with valid SMJ over a case to hear additional claims over which the court would NOT independently have jurisdiction if ALL the claims constitute the same case or controversy.

Claims constitute the “same case or controversy” if they arise out of a common nucleus of operative fact (meaning all the claims arise out of the same transaction or occurrence).

Question 9

HIGH

SUPPLEMENT JURISDICTION

FEDERAL QUESTION CASES

Answer 9

A federal court sitting in federal question jurisdiction may hear a pendent state law claim under supplemental jurisdiction if the state law claim arises out the same transaction or occurrence as the federal law claim.

Example: P sues D for copyright infringement (federal law) and breach of contract (state law). A federal court may hear the breach of contract claim IF the breach arose out of the same transaction or occurrence as the copyright infringement claim. This holds true if the state and federal claims are spread out against multiple defendants (called “pendent party” jurisdiction – P v. D Copyright Infringement, D Breack of K).

Question 10

HIGH

SUPPLEMENTAL JURISDICTION

DIVERISTY CASES

COMPULSORY COUNTERCLAIMS

Answer 10

A compulsory counterclaim is a counterclaim that arises out of the same transaction or occurrence as the original claim filed. A federal court sitting in diversity jurisdiction has supplemental jurisdiction over a compulsory counterclaim.

Question 11

HIGH

SUPPLEMENTAL JURISDICTION

DIVERISTY CASES

PERMISSIVE COUNTERCLAIMS

Answer 11

A permissive counterclaim is a counterclaim that does NOT arise out of the same transaction or occurrence as the original claim filed.

A permissive counterclaim can only be heard if it independently satisfies diversity jurisdiction (e.g., complete diversity is present + amount in controversy exceeds $75,000).

Question 12

MED-LOW

REMOVAL

Answer 12

Removal allows the defendant (and only the defendant) to move a case from state court to federal court if the case could have been brought originally in federal court.

_____________________________________________

Federal Question Cases. The defendant may remove the case to federal court if the well-pleaded complaint discloses that the claim is based on federal law.

In diversity actions, there is an additional requirement - the defendant may remove if:

1. Complete diversity is present;
2. The amount in controversy exceeds $75,000; AND
3. The action is brought in a state of which no defendant is a citizen.

Question 13

HIGH

PERSONAL JURISDICTION

TRADITIONAL BASES

Answer 13

If any of the following 4 traditional bases are satisfied, the court will have personal jurisdiction over the defendant:

1. Domicile (D is domiciled in the forum state)
2. Physical Presence (D is served in the forum state)
3. Consent (D consents to PJ)
4. Waiver (D waives his objections to PJ)

Question 14

HIGH

PERSONAL JURISDICTION

STATE LONG-ARM STATUTES

Answer 14

If none of the traditional bases are satisfied, a court may still obtain personal jurisdiction over the defendant by using a state long-arm statute.

This requires (via Constitutional Due Process) that minimum contacts exist between the defendant and the forum state.

Sufficient minimum contacts exist when:

1. General or specific jurisdiction is present; AND
2. The exercise of such jurisdiction does NOT offend traditional notions of fair play and substantial justice.

____________________________

FACTORS:

(a) Convenience for the defendant;
(b) Whether the forum state has a legitimate interest in providing redress;
(c) Whether the plaintiff’s interest in obtaining relief is proper;
(d) The interstate judicial system’s interest in efficiency; AND
(e) The shared interest of the several states in furthering social policies.

Question 15

MED-LOW

GENERAL JURISDICTION

Answer 15

General Jurisdiction is present when the defendant is “essentially at home” in the forum state (usually limited to the locations where the defendant is a citizen). When general jurisdiction is present, the defendant can be sued on ANY claim (even if the claim is unrelated to the defendant’s contact with the forum state).

Question 16

HIGH

SPECIFIC JURISDICTION

Answer 16

Specific Jurisdiction gives courts jurisdiction over out-of-state defendants for the defendant’s specific contact with the forum state. The claim MUST arise out of the defendant’s specific contact with the forum state. Specific jurisdiction is present if:

1. The defendant purposefully availed himself of the benefits of the forum state; AND
2. The defendant knew or reasonably should have anticipated that his activities in the forum state made it foreseeable that he may be “haled into court” there.

Question 17

HIGH

SPECIFIC JURISDICTION

STREAM OF COMMERCE CASES

Answer 17

Stream of Commerce Cases. Generally, there will be specific jurisdiction over a defendant if the defendant:

1. Places a product in the stream of commerce in the forum state; AND
2. Commits some other act to show intent to serve the forum state.

Question 18

HIGH

SPECIFIC JURISDICTION

INTERNET CASES

Answer 18

Internet Cases. Generally, internet cases involve either passive or active websites.

1. Passive Websites. A passive website is a website that is used for information purposes rather than online sales and commerce. Generally, the maintenance of a passive website, without more activity in the forum, is insufficient for general jurisdiction. However, it may be sufficient for specific jurisdiction if the defendant is targeting readers in the forum.
2. Active Websites. An active website is a website that is used for online commerce to make sales. The maintenance of an active website may be sufficient for general jurisdiction if the defendant is conducting significant business in the forum state such that the defendant is at home in the forum.

Question 19

LOW

SERVICE OF PROCESS

Answer 19

A civil action is commenced by filing a complaint with the court.

After the plaintiff files a complaint, a summons MUST be served on the defendant with a copy of the complaint.

The plaintiff is responsible for having the summons and complaint served within 90 days after the complaint is filed with the court.

Question 20

LOW

SERVING AN INDIVIDUAL

WITHIN THE UNITED STATES

Answer 20

An individual within a judicial district of the United States may be served by:

1. Delivering a copy of the summons and complaint to the individual personally;
2. Leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; OR
3. Delivering a copy of each to an agent authorized by appointment or by law to receive a service of process.

Question 21

LOW

SERVING AN INDIVIDUAL

IN A FOREIGN COUNTRY

Answer 21

Unless prohibited by the foreign country’s law, an individual in a foreign country may be served by:

1. Delivering a copy of the summons and complaint to the individual personally;
2. Using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; OR
3. Other means not prohibited by international agreement, as the court orders.

Question 22

LOW

SERVING A CORPORATION, PARTNERSHIP, OR ASSOCIATION

Answer 22

A corporation, partnership, or association may be served by delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.

Question 23

HIGH

VENUE

Answer 23

Venue determines the judicial district in which a lawsuit may be filed or commenced. Venue is proper in a judicial district where:

1. ANY defendant resides, IF all the defendants reside in the same state;
2. A substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is located; OR
3. If there is NO district anywhere in the United States that satisfies (1) or (2), a judicial district in which ANY defendant is subject to personal jurisdiction.

Question 24

HIGH

INDIVIDUALS’ RESIDENCE

FOR VENUE PURPOSES

Answer 24

An individual is deemed to reside in the judicial district where he is domiciled.

Question 25

HIGH

BUSINESS ENTITIES’ RESIDENCE

FOR VENUE PURPOSES

Answer 25

A business entity is deemed to reside in any judicial district where the entity is subject to personal jurisdiction with respect to the action in question.

Question 26

HIGH

FOREIGN DEFENDANTS’ RESIDENCE

FOR VENUE PURPOSES

Answer 26

A defendant who is NOT a resident of the United States, whether a U.S. citizen or an alien, may be sued in ANY judicial district.

Question 27

MED

CHANGE OF PROPER VENUE

Answer 27

If venue is proper, the court may nonetheless transfer the case for the convenience of the parties or witnesses to any court where the case could have been originally filed (i.e., the transferee court must have valid SMJ + personal jurisdiction over the defendant + proper venue).

Question 28

MED

CHANGE OF IMPROPER VENUE

Answer 28

If venue is improper, the court MUST:

1. Dismiss the case; OR
2. Transfer the case to a venue in which the case could have been originally filed (i.e., the transferee court must have valid SMJ + personal jurisdiction over the defendant + proper venue).

Question 29

MED

CHOICE OF LAW

IN A CHANGE OF PROPER VENUE

Answer 29

If a court transfers a case to another venue, the law that the transferee court must apply depends on whether the original venue was proper and the type of case involved.

If the transferor court had proper venue:

1. In a diversity case, the transferee court must apply the law that would have been applied in the district court that transferred the case.
2. In a federal question case, the transferee court must apply the federal law as interpreted by its own federal court of appeals.

Question 30

MED

CHOICE OF LAW

IN A CHANGE OF IMPROPER VENUE

Answer 30

If a court transfers a case to another venue, the law that the transferee court must apply depends on whether the original venue was proper and the type of case involved.

If the transferor court had improper venue:

1. In a diversity case, the transferee court must apply the choice-of- law rules of the state in which it is located, as opposed to the state law of the district court that transferred the case.
2. In a federal question case, the transferee court must apply the federal law as interpreted by its own federal court of appeals.

Question 31

lowest

ABSTENTION

Answer 31

Generally, a federal court with valid SMJ is required to adjudicate controversies before it.

However, a federal court may abstain from hearing a case or stay the matter pending the outcome of a state court action in order to avoid intruding upon the powers of a state court.

Question 32

LOW

PRELIMINARY INJUNCTIONS

Answer 32

A preliminary injunction preserves the status quo of the parties until a final judgment on the merits can be reached.

A plaintiff seeking a preliminary injunction must establish that:

1. She is likely to suffer irreparable harm if the preliminary injunction is not issued;
2. She is likely to suffer greater harm than the defendant will if the preliminary injunction is not issued;
3. She is likely to succeed on the merits; AND
4. The injunction is in the best interest of the public.

Question 33

LOW

NOTICE REQUIREMENT

FOR PRELIMINARY INJUNCTIONS

Answer 33

The non-moving party MUST be given notice and an opportunity to oppose the preliminary injunction at a hearing before the court.

Question 34

LOW

TEMPORARY RESTRAINING ORDERS (TROs)

Answer 34

A TRO preserves the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction. A TRO may NOT last longer than 14 days unless good cause exists or the non-moving party consents. A plaintiff seeking a TRO must establish that:

1. She is likely to suffer irreparable harm if the TRO is not issued;
2. She is likely to suffer greater harm than the defendant will if the TRO is not issued;
3. She is likely to succeed on the merits; AND
4. The TRO is in the best interest of the public.

Question 35

LOW

EX PARTE NOTICE

FOR TEMPORARY RESTRAINING ORDERS (TROs)

Answer 35

The court may issue a TRO without written or oral notice to the non-moving party ONLY IF:

1. Specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable harm will result to the movant before the non-moving party can be heard in opposition; AND
2. The movant’s attorney certifies in writing any efforts made to give notice to the non-moving party and the reasons why it should not be required.

Question 36

LOW

THE COMPLAINT

Answer 36

The complaint is the first pleading filed by the plaintiff - it commences the lawsuit.

A complaint MUST state:

1. Grounds for subject matter jurisdiction;
2. A short statement of the claim that shows the pleader is entitled to relief; AND
3. A demand for judgment for relief.

Question 37

LOW

THE PRE-ANSWER MOTION

Answer 37

After the complaint is filed, the defendant may file a pre-answer motion or respond with the answer. The pre-answer motion may raise any or all of the following defenses:

1. Lack of subject matter jurisdiction;
2. Lack of personal jurisdiction;
3. Improper venue;
4. Insufficiency of process;
5. Insufficiency of service of process;
6. Failure to state a claim upon which relief can be granted; AND/OR
7. Failure to join an indispensable party under compulsory joinder.

Question 38

LOW

THE ANSWER

Answer 38

After the complaint is filed, the defendant may file a pre-answer motion or respond with the answer.

The answer MUST state:

1. A specific denial or admission of each allegation in the complaint OR a general denial of all allegations with specific admissions if necessary (a failure to deny an allegation constitutes an admission); AND
2. Any affirmative defenses that the respondent has (or that defense is deemed waived).

Question 39

LOW

AMENDMENTS TO PLEADINGS

BY RIGHT

Answer 39

A party may amend a pleading once as of right within 21 days if no responsive pleading is required.

If a responsive pleading is required, the party may amend within 21 days of whichever event is earlier:

1. The service of the responsive pleading; OR
2. Being served with a Rule 12(b) motion.

Question 40

AMENDMENTS TO PLEADINGS

BY LEAVE OF THE COURT

Answer 40

The court can permit an amendment to a pleading when justice so requires.

Generally, a court will permit a proposed amendment if the proposed amendment:

1. Is not subject to dismissal under Rule 12(b); AND
2. Would NOT result in undue prejudice to the opposing party.

Question 41

LOW

RELATION BACK DOCTRINE

FOR NEW CLAIMS

Answer 41

The relation back doctrine determines whether an amendment to a pleading will relate back to the date of the original pleading. This can be important for statute of limitation purposes.

If the pleading is amended to include a new claim or defense, the amendment will relate back to the date of the original pleading if the new claim or defense arose out of the same transaction or occurrence set out in the original pleading.

Question 42

RELATION BACK DOCTRINE

FOR NEW PARTIES

Answer 42

The relation back doctrine determines whether an amendment to a pleading will relate back to the date of the original pleading. This can be important for statute of limitation purposes.

If the pleading is amended to include a new party or changes the name of a party, the amendment will relate back to the date of the original pleading if:

1. It asserts a claim that arose out of the same transaction or occurrence set out in the original pleading;
2. The party to be brought in by amendment receives notice of the action within 90 days after the filing of the original complaint such that he will not be prejudiced in defending his case on the merits; AND
3. The party to be brought in by amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party’s identity.

Question 43

MED-LOW

COMPULSORY JOINDER

(INDISPENSABLE PARTIES)

Answer 43

A plaintiff MUST join an absent party or face dismissal of his lawsuit if:

1. The court has personal jurisdiction over the absentee;
2. The absentee’s presence would not destroy subject matter jurisdiction or venue; AND
3. Either:
   
   1. complete relief cannot be accorded among the other parties to the action without the absentee party; OR
   2. the absentee has such an interest in the action that a decision in his absence will impede his ability to protect the interest or leave any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Question 44

MED-LOW

PERMISSIVE JOINDER

Answer 44

Parties MAY join as plaintiffs or be joined as defendants when:

1. Some claim is made by each plaintiff and against each defendant that arises out of the same transactions or occurrences; AND
2. There is a question of fact or law common to all parties.

Question 45

LOW

INTERPLEADER BY A PLAINTIFF

Answer 45

Interpleader allows a plaintiff or defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead.

Joinder for interpleader is proper even though:

1. The claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; OR
2. The plaintiff denies liability in whole or in part to any or all of the claimants.

Question 46

LOW

INTERPLEADER BY A DEFENDANT

Answer 46

Interpleader allows a plaintiff or defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. A defendant exposed to similar liability may seek interpleader through a cross-claim or counterclaim.

Question 47

lowest

INTERVENTION AS OF RIGHT

Answer 47

Intervention permits a nonparty to intervene in an action. Intervention is available as of right when:

1. the applicant claims an interest in the property or transaction that is the subject matter of the action; AND
2. the disposition of the action without him may impair his ability to protect that interest.

Question 48

lowest

PERMISSIVE INTERVENTION

Answer 48

Intervention permits a nonparty to intervene in an action.

Intervention is permissive when the applicant’s claim or defense and the main action have a question of law or fact in common. Permissive intervention must be supported by its own jurisdictional grounds and is discretionary with the court.

Question 49

lowest

CLASS ACTIONS

Answer 49

A class action is a type of suit where one of the parties is a group of people who are represented collectively by a member or members of that group [called “named parties”]. A class action is proper if:

1. The class is so numerous that joinder of all members is impracticable;
2. There are questions of law or fact common to the class;
3. Named parties’ interests are typical of the class; AND
4. Named parties will adequately represent the interests of the absent members of the class.

Question 50

lowest

CERTIFICATION OF A CLASS

IN A CLASS ACTION

Answer 50

Once a class action is determined to be proper, the class will be certified IF:

1. Separate actions would create a risk of inconsistent results or impair the interests of unnamed parties;
2. The defendant has acted or refused to act on grounds applicable to the class and injunctive or declaratory relief is appropriate for the class as a whole; OR
3. Common questions of law or fact predominate over individual issues and a class action is superior to alternate methods of adjudication.

Question 51

LOW

PRETRIAL CONFERENCES

Answer 51

Under Rule 26(f), the parties must confer as soon as it is practicable to:

1. Consider their claims and defenses, the possibility of settlement, initial disclosures, and a settlement plan; AND
2. Submit to the court a proposed discovery plan addressing the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required by the court.

Additional pretrial conferences may be held to expedite the trial and foster settlement.

Question 52

lowest

INITIAL DISCLOSURES

Answer 52

Each party to an action MUST make certain initial disclosures, even if an opposing party does not ask for such information, within 14 days after the parties’ Rule 26(f) conference. These disclosures include:

1. The names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses, UNLESS the use would be solely for impeachment;
2. Copies or descriptions of documents, electronically stored information, and tangible things that are in the disclosing party’s possession or control that the disclosing party may use to support its claims or defenses, UNLESS the use would be solely for impeachment;
3. A computation of damages claimed by the disclosing party and copies of materials upon which the computation is based; AND
4. Copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.

Question 53

lowest

SCOPE OF DISCOVERABLE INFORMATION

Answer 53

Generally, discovery is permitted with regard to any non-privileged matter that is:

1. Relevant to any party’s claim or defense in the action; AND
2. Proportional to the needs of the case.

Question 54

lowest

LIMITATIONS ON DISCOVERY

Answer 54

On motion or on its own, the court is required to limit the frequency or extent of discovery if the court determines that:

1. The discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient or less expensive; OR
2. The party seeking discovery had ample opportunity to obtain the information by discovery in the action.

Question 55

lowest

DEPOSITIONS

Answer 55

A party may take the deposition of any party or nonparty witness (with a subpoena) at any time after the party has made its initial disclosures.

Without leave of the court, the plaintiffs and the defendants, each as a group, are limited to 10 depositions by oral or written examination.

An oral deposition is limited to 1 day of 7 hours, unless the parties agree otherwise or the court order otherwise.

Question 56

lowest

INTERROGATORIES

Answer 56

Any party may serve no more than 25 written interrogatories on any other party.

Interrogatories may NOT be used on nonparties.

Interrogatories must be answered fully and separately under oath by the party to whom they are directed, unless the responding party objects by stating the specific grounds for the objection.

The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.

Question 57

lowest

DUTY TO PRESERVE RELEVANT EVIDENCE

Answer 57

When it can be reasonably anticipated that an action will be filed, all parties have a duty to preserve potentially relevant evidence.

The term “evidence” includes all information, including not just hard copy documents, but all electronically stored information on any medium and in any electronic format.

Question 58

LOW

ATTORNEY WORK-PRODUCT DOCTRINE

Answer 58

The work-product doctrine protects materials prepared by an attorney or a client (or their agent) in anticipation of or during litigation from discovery by opposing counsel.

Such materials will NOT be protected from disclosure to opposing counsel IF:

1. The materials are otherwise unavailable;
2. There is a substantial need for the materials; AND
3. The materials cannot be obtained without undue hardship.

NOTE: When a party withholds information she believes is privileged or protected by work- product, the party MUST make the claim expressly and describe the nature of the documents in a manner that will enable other parties to assess the applicability of the privilege or work-product doctrine

Question 59

lowest

PRETRIAL CONFERENCE SANCTIONS

Answer 59

The court may direct counsel and unrepresented parties to appear for pretrial conferences (to expedite the trial, foster settlement, etc.). The court may issue sanctions (including dismissal of all or part of the action or holding parties in contempt of court) if counsel or a party:

1. Fails to appear;
2. Fails to participate in good faith; OR
3. Fails to obey a pretrial conference order.

NOTE: Dismissal of an action is a severe sanction, and generally it is only appropriate when a party’s conduct is serious, repeated, extreme, or otherwise inexcusable

Question 60

lowest

FAILURE TO PARTICIPATE IN THE FRAMING OF A DISCOVERY PLAN

Answer 60

If a party or her attorney fails to participate in good faith in the development and submission of a Rule 26(f) proposed discovery plan, then the court may, after providing an opportunity for a hearing, order the party or attorney to pay reasonable expenses, including attorney’s fees, as a result of such failure.

Question 61

lowest

RULE 11(b) SIGNATURE REQUIREMENT

Answer 61

Every pleading, written motion and other paper served must be signed by at least one attorney of record in the attorney’s name or by a party personally if the party is unrepresented. The paper must state the signer’s address, email address, and telephone number.

The court MUST strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.

Question 62

lowest

RULE 11(b) REPRESENTATIONS TO THE COURT

Answer 62

By presenting to the court a pleading, written motion, or other paper (whether by signing, filing, submitting, or later advocating it) an attorney or unrepresented party certifies that:

1. It is not be presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
2. The claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;
3. The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; AND
4. The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Question 63

lowest

RULE 11(b) SANCTIONS

Answer 63

The court (on motion or on its own) may issue sanctions for failing to comply with the Rule 11(b) signature and representations to the court requirements.

The sanctions may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.

Question 64

lowest

FAILURE TO PRESERVE ELECTRONICALLY STORED INFORMATION

Answer 64

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be replaced through additional discovery, the court:

1. Upon finding prejudice to another party, may order measures no greater than necessary to cure the prejudice; OR
2. Upon finding that the party acted with the intent to deprive another party of the information, may presume that the lost information was unfavorable, and:
   
   1. instruct the jury that it may or must presume that the lost information was unfavorable to the wrongdoing party;
   2. dismiss the action; or
   3. enter a default judgment.

Question 65

LOW

RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

Answer 65

Under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable or fails to allege facts sufficient to support a cognizable claim.

In making this determination courts apply a 2-step analysis:

1. First, the court must identify and reject legal conclusions unsupported by factual allegations; THEN
2. Second, the court should assume that the well-pleaded factual allegations are true and, drawing on the court’s judicial experience and common sense, determine whether the allegations plausibly give rise to the entitlement of relief.

Question 66

MED

MOTION FOR SUMMARY JUDGMENT (MSJ)

Answer 66

A MSJ may be filed at any time until 30 days after the close of discovery. A MSJ must be granted if, from the pleadings, affidavits, and discovery materials on file, when viewing the evidence in the light most favorable to the nonmoving party, it appears that:

1. No genuine dispute of material fact exists; AND
2. The moving party is entitled to judgment as a matter of law.

Question 67

LOW

MOTION FOR JUDGMENT

AS A MATTER OF LAW (JMOL)

Answer 67

A JMOL (formerly known as a “directed verdict”) may be filed by either party after the close of the nonmoving party’s evidence or at the close of all evidence. The motion will be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party.

Question 68

lowest

RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW

Answer 68

A renewed motion for judgment as a matter of law (formerly known as a “motion for judgment notwithstanding the verdict” or “JNOV”), may be filed no later than 28 days after the entry of judgment. It may ONLY be raised if a JMOL was previously filed.

The motion will be granted if, when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party. A party is generally limited to those issues raised in the JMOL.

Question 69

lowest

MOTION FOR A NEW TRIAL

Answer 69

The court may, on motion, grant a new trial (on all issues or with respect to only certain issues or parties) for any of the reasons for which new trials have traditionally been granted, such as:

1. An error made at trial that renders the judgment unfair;
2. Newly discovered evidence that existed at the time of the trial was excusably overlooked and would likely have altered the outcome of the trial;
3. Prejudicial misconduct of counsel, a party, the judge, or a juror;
4. A verdict that is against the clear weight of the evidence;
5. A verdict that is based on false evidence such that a new trial is necessary to prevent injustice; OR
6. A verdict that is excessive or inadequate.
   (If the verdict is excessive, the court may order a new trial OR offer the plaintiff remittitur, which allows the plaintiff to choose between a lesser award or a new trial. “Additurs” are not permitted in federal court; the only option is a new trial)

Question 70

LOW

FINAL JUDGMENT RULE

Answer 70

The federal courts of appeals have jurisdiction over appeals from final judgments of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.

Question 71

LOW

RES JUDICATA (CLAIM PRECLUSION)

Answer 71

Res judicata provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action. To bar a claim under res judicata:

1. The original claim must have resulted in a valid final judgment on the merits;
2. The original and later-filed causes of action must be sufficiently identical (i.e., related to the same transaction or occurrence); AND
3. The claimant and the defendant must be the same (and in the same roles) in both the original and later-filed action, or privity exists between the parties in the original and later-filed action.
   (NOTE. Res Judicata is limited to the parties and their privies; thus, a similar action by a different party would NOT be barred under res judicata.)

Question 72

MED

COLLATERAL ESTOPPEL (ISSUE PRECLUSION)

Answer 72

Collateral estoppel precludes the re-litigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. To bar an issue under collateral estoppel:

1. The issue sought to be precluded must be the same as that involved in the prior action [i.e., the facts relevant to the particular issue and the applicable law must be identical];
2. The issue must have been actually litigated in the prior action;
3. The issue must have been determined by a valid final judgment on the merits; AND
4. The determination of the issue must have been essential to the prior judgment.

Question 73

lowest

EFFECT OF A DEFAULT JUDGMENT

Answer 73

A default judgment will have a preclusive effect if the court had valid personal and subject matter jurisdiction. States vary as to the extent of preclusion a default judgment has, but generally, a party is barred from asserting defenses or compulsory counterclaims that could have been raised in that original action.

Question 74

lowest

APPEAL OF INTERLOCUTORY ORDERS

Answer 74

An interlocutory order is an order that is provisional, interim, temporary, or non-final (e.g., TROs). Although most interlocutory orders are NOT immediately appealable, certain equitable orders are immediately reviewable as a matter of right, including:

1. An order granting, modifying, refusing, or dissolving an injunction;
2. An order appointing or refusing to appoint a receiver; AND
3. A decree determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

Question 75

MED-LOW

COLLATERAL ORDER DOCTRINE

Answer 75

The doctrine of collateral order allows a party to appeal interlocutory rulings if the ruling decides a claim or issue:

1. That is separable from and collateral to the merits of the case;
2. Involves a serious and unsettled legal question; AND
3. Would be effectively unreviewable if the court waited until final judgment to hear the claim or issue.

Question 76

lowest

MANDAMUS REVIEW

Answer 76

Under mandamus review, a court of appeals can immediately review an order that is an abuse of judicial authority (e.g., orders beyond the trial court’s jurisdiction, orders that violate a mandatory duty of the trial court, etc.). Such review does NOT extend to all orders that constitute an error of law.