Civil Procedure

Question 1

Requirements of a Preliminary Injunction

Answer 1

P must show

1. Irreparable harm
2. Likely to win on merits
3. balance of hardships
4. public interest

CANNOT BE ISSUED EX PARTE / must post bond / and state terms in specificity; details; and purpose (specific findings of fact and separate conclusion of law)

Question 2

Verified Pleading

Answer 2

A pleading made under oath that can be treated as evidence (as affadavit).

Question 3

Rule 26(f) conference

Answer 3

Parties must “meet and confer” at least 21 days prior to court’s scheduling order to discuss initial disclosures, claims, defenses, settlement and preservation of discovery information.

Detailed discovery plan no later than 14 days after Rule 26(f) conference.

The only thing that can happen prior to this conference is a request for production.

Question 4

Post 26(f) Meeting Requirements

Answer 4

Parties must provide within 14 days of 26(f) Meeting (must disclosure non-privileged matters relevant to claim/defense and proportional to needs of case):

1) Contact information for persons likely to be in possession of discoverable information that could be used by disclosing party to support claim/defense (not impeachment purposes and even if found under great expense);
2) Copies or descriptions of documents, electronically stored info (ESI), or tangible things that disclosing party could use for claim/defense (not impeachment purposes);
3) Computation of damages claimed and materials used to arrive at figure; AND
4) Insurance Agreements where insurer may be liable for part/all of judgment.

** But if EIS is identified as “not reasonably accessible because of undue burden or cost” then it doesn’t need to be produced.

Question 5

Scheduling Order

Answer 5

A roadmap that the Court creates with deadlines for the case up until trial.

Question 6

Final Pretrial Conference

Answer 6

Supersedes the pleadings - where parties meet to discuss what will happen at the trial.

Question 7

7th Amendment Jury Right

Answer 7

Preserves the right to a jury in FEDERAL civil actions at law ($ damages), but not at equity.

Jury must be demanded IN WRITING within 14 days after service of the last pleading that addresses a jury-triable issue; otherwise, waived.

Question 8

Voir Dire

Answer 8

Jury selection process through “for cause” and “peremptory challenges”

Peremptory challenges don’t require a reason (3 potential jurors) - must be RACE and GENDER neutral.

Question 9

Types of Verdict

Answer 9

General: jury decides who wins and what relief for plaintiff

Special: jury answers specific written questions (judge declares winner/relief)

Combo: general verdict with written questions. Jury gives verdict but also answers specific questions that ensure jury focuses on important issues.

Question 10

Judgment as a Matter of Law

Answer 10

Court must find that a reasonable jury did not a legally sufficient basis to find for the party against whom the judgment is entered.

No JMOL until after the opposing party has been heard and before being submitted to jury.

Renewed JMOL: Comes up after jury returns verdict that reasonable people could not have reached (** must have asserted JMOL at trial at the proper time and be based on the same grounds **) - must be made within 28 days after entry of judgment.

Question 11

Remittitur or New Trial

Answer 11

Federal or State Court.

If jury award is so high that it “shocks the conscience”:

Court can order new trial OR can offer P of taking a choice of a lesser figure set by the court (cannot REQUIRE a lower figure)

Question 12

Additur or New Trial

Answer 12

Not allowed in Federal Court (violates 7th A): damage figure so low that it “shocks the conscience” and makes defendant either add to damages or else, go through new trial.

ONLY STATE COURTS CAN DO ADDITUR!! (but federal can get new trial).

Question 13

Standards of Appellate Review

Answer 13

Questions of Law (or mixed law/fact) (e.g. RJMOL) - De Novo

Questions of Fact:
Jury Trial: Reasonable Jury could not have reached the same conclusion
Bench Trial: Clearly Erroneous

Discretionary Matters (e.g. motion for new trial) - Abuse of Discretion

Harmless Error - No reversal if error does not affect the outcome of case.

Question 14

Claim Preclusion (Res Judicata)

Answer 14

Requires:

1. Same Plaintiff vs. Same Defendant (or in privity)
2. Valid final judgment on the merits
3. Assertion of the same cause of action (same transaction or occurrence)

Question 15

Issue Preclusion (Collateral Estoppel)

Answer 15

Requirements:

(1) the issues in both action must be the same;
(2) there must have been a final judgment as to that issue;
(3) the party against whom issue preclusion is asserted must have had a fair opportunity to be heard on the matter; and
(4) the posture of the case must be such that it would not be fair or inequitable to apply collateral estoppel.

NON-MUTUAL DEFENSIVE: person asserting preclusion was not party to first case and is now the DEFENDANT - OK if Plaintiff had full chance to litigate in the first case.

NON-MUTUAL OFFENSIVE: person asserting preclusion was not party to first case and is now the PLAINTIFF - MAJORITY VIEW SAYS NO

Question 16

Pretrial Order

Answer 16

Controls subsequent course of action unless modified, which court will do “only to prevent manifest injustice”. E.g. adding additional trial witness requires modification and can be done before or during trial.

Question 17

3rd Party Defendants asserting claims against P

Answer 17

Permissive Counterclaim:

3rd Party D MAY assert a claim against the plaintiff if the claim arises out of the same transaction or occurrence than P’s original claim - but he may assert an independent action if preferred.

Versus: original Defendant MUST bring counterclaim if same transaction/occurrence.

Question 18

Relation Back Doctrine for amending complaint and substituting defendants

Answer 18

Amendments to complaints that substitute a new defendant are allowed and the amendment will relate back to the original complaint IF (1) claims in the amendment arise from same transaction/occurrence AND (2) within the original time allowed for serving original complaint (90 days from filing) and new defendant receives such notice of the action that it won’t be prejudiced on defending on the merits and they knew (or should have known) that the action would be against them.

Question 19

Default Judgment

Answer 19

If D has appeared in case in some fashion for the case, he must be notified of the request for default judgment by mail at least 7 days before the judge determined hearing to decide damages (after clerk has made entry of default).

If D fails to appear, then no notice and can be entered by clerk if amount of damages is specific and certain.

Question 20

Waived Defenses

Answer 20

Waived if not in 1st response or answer:

1. PJ
2. Venue (but ok to transfer from proper venue to proper venue later at judge discretion).
3. Insufficient Process
4. Insufficient service of process

SMJ IS NEVER WAIVED!!!!

Question 21

Citizenship

Answer 21

Corporation - deemed to be a citizen of every state in which it is incorporated and the one state where it has its principal place of business.

Partnership - a citizen of each state in which one of its partners is a citizen (includes limited and general partners but not officers).

Question 22

Amending Complaint

Answer 22

Motions to amend complaint should be “freely given when justice so requires” and amendment relates back to original filing (so ok if SOL run).

A party may amend their complaint by consent if to include unpleaded issue or as a response to new evidence.

Question 23

Aggregation in Diversity Claims

Answer 23

All claims against a single defendant can be aggregated by a single plaintiff even if they’re not legally or factually related to one another.

Question 24

Interlocutory Appeal Exceptions

Answer 24

May appeal interlocutory orders that involve:

1) injunction orders
2) class certification
3) property possession affected (e.g. writ of attachment)

Question 25

Compulsory Claims

Answer 25

Cross claims are NEVER compulsory.

Question 26

Convenience Court Transfer

Answer 26

A transfer to another court for convenience will be stuck using the laws of the prior court.

Question 27

Physician as Trial Expert

Answer 27

Discussion or reports between trial expert physicians and plaintiff party are work product.

But Expert compensation is discoverable.

Question 28

Treating Physicians

Answer 28

Treating Doctor’s observations, opinions and treatment are discoverable because not made in prep for trial.

Question 29

Experts retained only in anticipation of litigation and will not testify

Answer 29

Both formal and informal consultations of experts, whether retained or specially employed, are not discoverable unless a showing of exceptional circumstances (i.e. impracticable to obtain facts/opinions otherwise).

Question 30

P’s ability to dismiss case

Answer 30

Plaintiff may dismiss prior to Defendant’s response by filing a notice of dismissal;

But once D files first response, action can only be dismissed by signed stipulation from all parties or b filing a Motion for Voluntary Dismissal (which gives court discretion).

Question 31

Erie Doctrine

Answer 31

Federal courts must apply state substantive law and federal procedural law.

Eg state substantive law = Jury award is excessive

Question 32

Temporary Restraining Order

Answer 32

A TRO may be issued ex parte (one party only) if the moving party:

1. Gives specific facts under oath to establish immediate and irreparable injury will result before adverse party can be heard;
2. Certifies in writing that it made efforts to give notice to adverse party and why notice should not be required; and
3. Provides security to pay for costs or damages incurred by adverse party if wrongfully enjoined or restrained (unless U.S. party)

** A TRO lasts 14 days; can be extended additional 14 days if good cause shown. If beyond 28 days, treated as preliminary injunction.

Question 33

Federal Question Jurisdiction

Answer 33

A Plaintiff must allege in their well-pleaded complaint that the claim arises under federal law.

A defense that raises FQ will not give rise to FQ jurisdiction.

SOL starts when complaint is filed.

Question 34

Diversity Jurisdiction

Answer 34

Diversity Jurisdiction exists when case is between citizens of different U.S. States (or a U.S. citizen and a foreign citizen); AND

The amount in controversy exceeds $75,000.

SOL beings to run when state law says it does

Question 35

Impleader

Answer 35

A Defendant may implead a party that is liable to them for P’s claim’s against them.

A Defenant may not implead another party if they are denying liability entirely.

Question 36

Service of Interrogatory for business records

Answer 36

When information sought is in business records, and the burden of finding information is substantially the same for both parties, the party served the interrogatory may just give a reasonable opportunity to examine records (and not find the info sought themselves).

Question 37

Jury Instructions

Answer 37

A party requesting instruction must object if court refuses, otherwise appeals court may only apply plain error standard of review.

If appropriately objected, appeals court applies abuse of discretion standard.

Question 38

Appeals on cases with multiple parties / claims

Answer 38

If some claims/parties are disposed of, and others remain, then order is not final.

No party can appeal because it is not a final judgment UNLESS court expressly determines “no just reason to delay the entry of judgment”.

Question 39

Notice of Appeal Deadline

Answer 39

Parties have 30 days from the entry of judgment to appeal days (60 if U.S. is a party)

Question 40

Permissible Claims

Answer 40

A party may assert a claim against a co-party only if same T/O as original action or counterclaim.

Once asserted, party may join any other unrelated claims along with it.

Question 41

Subject Matter Jurisdiction

Answer 41

Requires either:

1) Diversity of Citizenship and amount in controversy exceeds $75,000; OR
2) Federal Question that arises from federal law in a well-pleaded complaint.

Federal Courts also hear: Bankruptcy, anti-trust, patents, postal issues.

Question 42

Personal Jurisdiction

Answer 42

Must be (1) statutorily authorized; and Constitutional (i.e. minimum contacts with forum state so that jx does not offend traditional notions of substantial notice and fair play.

Specific (this case only): D must have purposefully availed himself to the state, the claim arises out of that contact with the state and it is fair and reasonable to sue him there.

General (all cases): D must be “at home” in the forum (person = domicile; corporation = ppb or state of incorp).

Question 43

Proper Venue

Answer 43

Venue is proper in:

1) the district court is located in the state where a Defendant resides, only if all Ds live in the same state; or
2) proper when the venue is in the state where a substantial part of the cause of action occurred.

If neither can be satisfied, the action may be brought in the district which any defendant is subject to court’s PJ with respect to the action.

If venue was improper, than the new venue’s state law applies where venue is proper.

Question 44

Supplemental Jurisdiction

Answer 44

Try to get in under diversity of FQ first….

Ok to tag along an additional claim to diversity/FQ claim already in district court if it arises from a common nucleus of operative fact (same T/O always satisfies) and the P would ordinarily expect them to all be tried in one proceeding.

If FQ claim dismissed on merits before trial, should send back to state; if trial has begun, the federal court MAY continue to exercise supp jx.

Except: Diversity cases do not allow Plaintiffs join that would break diversity.

Question 45

Removal Deadline

Answer 45

D must seek removal to district court within 30 days after receipt of service; or 30 days after the case becomes removable.

Question 46

Service of Process

Answer 46

FRCP 4: D can be served by leaving copy of summons and complaint at D’s dwelling or place of abode with someone of suitable age and discretion who resides there.

If refused: ok to inform D of nature of papers and leave them in his presence.

If request to waive service: summons and complaint may be mailed, but must include waiver form.

A lawyer is not a party and may serve papers.

Question 47

Summary Judgment

Answer 47

SJ is appropriate if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

Question 48

Intervention

Answer 48

A nonparty may intervene when it has a constitutional right to do so because:

1) Federal Statute permits; OR
2) has an interest in the property/transaction; a ruling would impair its interests; and non-party does not adequately represent them.