Civil Procedure

Question 1

Define Personal Jurisdiction

Answer 1

The defendant must have sufficient contacts so that the exercise of jurisdiction is fair and reasonable

Question 2

What is the two step analysis for PJ

Answer 2

2 step analysis:

the state statute and the constitutional due process requirement

Question 3

Describe the state statute analysis for PJ

Answer 3

each state has its own “long arm” statute that grants PJ over nonresidents who person or cause certain things in the state (eg. committing a tort, entering a contract)

Question 4

What is the constitutional analysis for PJ?

Hint: 3 factors

Answer 4

The defendant must have such minimum contacts with the forum state that the jurisdiction would not offend “traditional notions of fair play and substantial justice”

The three factors are: contact, relatedness, and fairness

Question 5

Define the contact prong of the constitutional due process analysis for PJ

Answer 5

defendant must have purposefully availed themselves to the forum state so that it was foreseeable that the defendant would be sued there

Question 6

Define the relatedness prong of the constitutional due process analysis for PJ. What happens if there is no relatedness?

Answer 6

the claim must be related to the defendant’s contact with the forum state for there to be specific PJ

If there is no relatedness, the state could still exercise general PJ

Question 7

specific jurisdiction - stream of commerce cases

Answer 7

Generally, there will be specific jurisdiction over a defendant if the defendant: Places a product in the stream of commerce in the forum state; AND Commits some other act to show intent to serve the forum state.

Question 8

List the fairness factors for specific PJ

Answer 8

court considers burden/convenience for the defendant and witnesses (not P bc they filed in the state and presumably the picked the forum most convenient) , state’s interest, and plaintiff’s interest

Question 9

Define general PJ for human and for corporations

Answer 9

the state may exercise PJ over a defendant who is “at home” in the state
for humans, this is wherever the person’s domicile is (ONLY ONE)
for corporations, it is where ever the company is incorporated and/or has its principal place of business (where the “brain” of the company is)

Question 10

Personal Jurisdiction - internet cases, passive websites

Answer 10

passive website, used for information purposes rather than online sales and commerce, 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.

Question 11

Personal jurisdiction - internet cases, active website

Answer 11

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 12

Define tag jurisdiction under PJ

Answer 12

a state may exercise PJ over a defendant if the defendant was properly served with process in the state, in accordance with the state’s service rules

Question 13

What does notice/service of process consist of

Answer 13

summons and a copy of the complaint

Question 14

who may serve process? are there any time limits?

Answer 14

(for fed court proceedings) anyone who is at least 18 years old and not a party to the case

process must be served within 90 days of complaint filing

Question 15

How is process served on an individual?

Answer 15

4 ways:
personal service
substituted service
service on agent (if within scope of agency)
in accordance with state law

Question 16

define substituted service

Answer 16

it’s a common sense determination

ONLY at the defendant’s usual place of abode, with someone of suitable age and discretion who resides there

Question 17

How can a corporation be served?

Answer 17

Deliver to an officer or a managing or general agent OR

use a method permitted by the state in which the federal court sits or where service is to be made

Question 18

How can parties in a foreign country be served?

Answer 18

any method allowed by international agreement

Question 19

what if there is no international agreement on point for service on a foreign party

Answer 19

then: as directed by an american court, allowed by foreign country’s law, directed by foreign official, personal service in foreign country, OR mail sent by the clerk of the American court requiring a signed receipt

Question 20

how is waiver of service executed? when is it effective?

Answer 20

P mails notice and requests D to waive service

must include a copy of the complaint and two copies of a waiver with a prepaid means of returning the form, then D can execute and mail the waiver form to P within 30 days (60 for international)

Effective when P files the waiver in court

Question 21

What is the effect of a waiver? what if D fails to return waiver form?

Answer 21

D waives service but NOT any defenses

If D fails to return waiver form, and does not show good cause, D must pay the cost of service

Question 22

Immunity from service of process

Answer 22

if D goes to appear as a party, witness, or attorney in a different civil case, D is immune from service of process

Question 23

What is Subject Matter Jurisdiction

Answer 23

a court must have SMJ over the claim before it

Question 24

Compare PJ and SMJ

Answer 24

unlike PJ, SMJ cannot be waived or be consented to

the court either has it or doesn’t and lack of SMJ can be brought up all the way up to appeal

Question 25

what are two categories of SMJ

Answer 25

federal question jurisdiction or diversity jurisdiction

Question 26

Define federal question SMJ

Answer 26

a court has SMJ if the claim arises under federal law

Question 27

what is the well-pleaded complaint rule

Answer 27

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 28

Describe diversity jurisdiction

Answer 28

need complete diversity of citizenship of the parties (P v D) and an amount in controversy that exceeds $75,000

NO diversity jurisdiction for probate or domestic relation actions

Question 29

how is citizenship determined for diversity jurisdiction for individuals and corporations

Hint: same test as “at home” for under general PJ

Answer 29

Individuals - domicile (place of residence where the individual intends to remain)

Corporations - incorporation AND principal place of business (“nerve center” usually where corporate headquarters are located or where officers direct and control operations)

Question 30

citizenship for unincorporated associations and partnerships

Answer 30

Unincorporated Associations and partnerships - considered a state of EVERY state of which its members are citizens

Question 31

citizenship for class actions

Answer 31

citizenship of class representative(s)

Question 32

How is amount in controversy determined

Answer 32

low bar but must exclude attorneys fees and interest unless it’s included by contract

Question 33

What is aggregation for amount in controversy

Answer 33

P can aggregate all of her claims against one D or all of her claims against multiple Ds if they are jointly liable to meet AIC requirement

Question 34

can multiple Ps aggregate?

Answer 34

each plaintiff’s claim must meet the AIC requirement separately unless supplemental jurisdiction applies

Question 35

what is supplement jurisdiction

Answer 35

Supp Jur allows a federal court with valid SMJ to hear additional claim(s) over which the court would not independently have jurisdiction IF ALL the claims constitute the same case or controversy

Question 36

define same case or controversy

Answer 36

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 37

How does supp jur work for federal question cases

Answer 37

federal court may hear a “pendent” state law claim under supp jur if it arises out of the same transaction or occurrence as the federal law claim

Question 38

How does supp jur work for diversity cases

Answer 38

3 common types - Compulsory Counterclaims, Permissive Counterclaims, and Cross-claims

Question 39

what are compulsory counterclaims

Answer 39

usually the D countersuing the P

D MUST file it, waives right to sue later if D does not file

arises out of the same transaction or occurrence as the original claim filed

federal court sitting in diversity jurisdiction has supplemental jurisdiction over a compulsory counterclaim

Question 40

what are permissive counterclaims

Answer 40

counterclaim that does NOT arise out of the same transaction or occurrence as the original claim filed

can ONLY be heard if it independently satisfies diversity jurisdiction

Question 41

what is removal?

Answer 41

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

ONLY DEFENDANT CAN REMOVE

Question 42

what are the requirements for removal?

Answer 42

MUST be sought by the Defendant; AND Within 30 days of learning the grounds for removal (not after one year from the commencement of action unless the plaintiff acted in bad faith to try to make the case non-removable).

Question 43

Removal in federal question cases

Answer 43

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

Question 44

Removal in Diversity cases

hint: in state defendant rule

Answer 44

must have complete diversity
amount in controversy exceed 75,000 AND
The action is brought in a state of which NO defendant is a citizen.

Question 45

What is venue?

Answer 45

Venue determines the judicial district in which a lawsuit may be filed or commenced

Question 46

where is venue proper?

hint: three ways

Answer 46

where ANY defendant resides, IF all the defendants reside in the same state;

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

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 47

How do you determine the defendant’s residence for venue purposes?

Hint: individuals, business entities, foreign defendants

Answer 47

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

Business Entities. 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.

Foreign Defendants. 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 48

How can a proper venue be changed?

Answer 48

the court may 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 49

How can venue be change if venue is improper?

Answer 49

the court must dismiss the case; OR 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 50

What law is applied if proper venue is transferred?

Answer 50

Diversity cases - the transferee court must apply the law that would have been applied in the district court that transferred the case.

Federal question cases - the transferee court must apply the federal law as interpreted by its own federal court of appeals.

Question 51

What law is applied if improper venue is transferred?

Answer 51

Diversity Cases. 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.

Federal Question Cases. In a federal question case, the transferee court must apply the federal law as interpreted by its own federal court of appeals.

Question 52

what is the abstention doctrine?

Answer 52

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 53

what is a preliminary injunction and what are the two types

Answer 53

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

prohibitory injunction - prohibits or restrains a party from engaging in a specified behavior

mandatory injunction - requires the defendant to engage in an affirmative act

Question 54

What should be included in an injunction

Answer 54

State the reasons as to why it was issued;
State its terms specifically; AND
Describe in reasonable detail the act or acts restrained or required.

Question 55

A plaintiff seeking a preliminary injunction must establish that:

Answer 55

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

Question 56

notice requirements for preliminary injunctions

Answer 56

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

Question 57

What is a temporary restraining order and how long does it last

Answer 57

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.

lasts ONLY 14 days max, unless there is good cause or consent from non moving party

Question 58

what must be included in a TRO

Answer 58

State the reasons as to why it was issued;State its terms specifically; AND
Describe in reasonable detail the act or acts restrained or required.

Question 59

what does a plaintiff need to establish for TRO

Answer 59

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

Question 60

Notice requirements for TRO

Answer 60

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

Specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable harm AND

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 61

What is the first pleading filed

Answer 61

complaint - commences a lawsuit

Question 62

what must a complaint include

Answer 62

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

Question 63

how can a defendant respond once complaint is filed

Answer 63

the defendant may file a pre-answer motion or respond with the answer

Question 64

what is in a pre answer motion

Answer 64

The pre-answer motion may raise any or all of the following defenses:

lack of smj, pj, improper venue, insufficient process or service of process, failure to state a claim upon which relief can be granted; and/or failure to join an indispensable party under compulsory joinder

Question 65

what needs to be in an answer?

Answer 65

A specific denial or admission of each allegation in the complaint OR a general
denial of all allegations with specific admissions if necessary;

Any affirmative defenses that the respondent has, or that defense is deemed
waived.

Question 66

what does a failure to deny constitute?

Answer 66

A failure to deny an allegation constitutes an admission.

Question 67

Describe the appropriate timing of the answer

Answer 67

It depends on when the pre-answer motion is made
if no pre-answer motion, then D must answer within 21 days

if pre answer motion, then responsive pleading must be served within 14 days of court’s response to the pre answer motion

Question 68

What are the two ways to amend a pleading?

Answer 68

amend a pleading by right or by leave of court

Question 69

what does it mean to amend a pleading by right? are there any time limits?

Answer 69

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: service of responsive pleading OR served with a rule 12b motion

Question 70

what does it mean to amend a pleading by leave of court

Answer 70

court can permit an amendment to a pleading when justice so requires if proposed amendment: Is not subject to dismissal under Rule 12(b) OR Would NOT result in undue prejudice to the opposing party

Question 71

what is the relation back doctrine?

Answer 71

determines whether an amendment to a pleading will relate back to the date of the original pleading

important for statute of limitation

Question 72

what are the requirements for adding a new claim under the relation back doctrine

Answer 72

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 73

what are the requirements for adding a new party under the relation back doctrine

Answer 73

if adding a new party, the amendment will relate back to the date of the original pleading if: party asserts a claim that arose out of the same T/O, party received notice of action within 90 days after filing of the OG complaint, and party knew or should have known that action would be brought against them but for a mistake concerning the proper party’s identity

Question 74

What are the four types of joinder

Answer 74

compulsory joinder
permissive joinder
impleader
interpleader

Question 75

define compulsory joinder

Answer 75

plaintiff must join an absent party or face dismissal if:
court has personal jurisdiction over the absentee
absentee’s presence would not destroy subject matter jurisdiction or venue;

AND either complete relief cannot be accorded among the other parties without absentee,

OR decision would impede absentee’s ability to protect their interest or leave any of the other parties subject to substantial risk of incurring multiple or inconsistent obligations

Question 76

define permissive joinder

Answer 76

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

Some claim is made by each plaintiff and against each defendant that arises out
of the same transactions or occurrences; AND

There is a question of fact or law common to all parties

Question 77

define interpleader

Answer 77

allows a plaintiff or defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute

Question 78

what are the rules for an interpleader initiated by a plaintiff

Answer 78

Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead

interpleader is proper even though: 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 plaintiff denies liability in whole or in part to any or all of the claimants

Question 79

what are the rules for an interpleader initiated by a defendant

Answer 79

A defendant exposed to double or multiple liability may seek interpleader through a cross-claim or counterclaim.

Question 80

what are the two kinds of Intervention

Answer 80

permits a nonparty to intervene in an action. Intervention may be granted to a party as of right OR permissively

Question 81

define intervention by right

Answer 81

Intervention is available as of right when the applicant claims an interest in the property or transaction that is the subject matter of the action, AND the disposition of the action without him may impair his ability to protect that interest.

Question 82

define permissive intervention

Answer 82

intervention is permissive when the applicant’s claim or defense and the main action have a question of law or fact in common.

must be supported by its own jurisdictional grounds and is discretionary with the court

Question 83

when is class action proper

Answer 83

class action is proper if:
class is so numerous that joinder of all members is impracticable
common questions of law or fact
Named parties’ interests are typical of the class
Named parties will adequately represent the interests of the class

Question 84

what is required for class action certification

Answer 84

class will be certified IF:

Separate actions would create a risk of inconsistent results or impair the interests of unnamed parties

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
Common questions of law or fact predominate over individual issues and a
class action is superior to alternate methods of adjudication.

Question 85

What is a Rule 26 conference

Answer 85

parties must confer as soon as it is practicable to: Consider their claims and defenses, the possibility of settlement, initial
disclosures, and a settlement plan;

AND
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.

Question 86

what are initial disclosures and when are they required

Answer 86

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.

Question 87

what should initial disclosures include

Answer 87

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;

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;

A computation of damages claimed by the disclosing party and copies of materials upon which the computation is based; AND

Copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.

Question 88

what is the scope of discoverable information

Answer 88

discovery is permitted with regard to any non-privileged matter that is: Relevant to any party’s claim or defense in the action; AND proportional to the needs of the case.

Question 89

what are some limits on discovery

Answer 89

the court is required to limit the
frequency or extent of discovery if the court determines that: is unreasonably cumulative information or can be obtained from a less expensive more convenient source

OR the party seeking discovery had ample opportunity to obtain the
information by discovery in the action.

Question 90

what is a deposition and what are the limits

Answer 90

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 orders otherwise.

Question 91

what are the notice requirements for depositions

Answer 91

A party who seeks an oral deposition of a person must give reasonable written notice to every other party, stating the time and place of the deposition and, if known, the deponent’s name and address.

Question 92

define interrogatories

Answer 92

Any party may serve no more than 25 written interrogatories on any other party. Interrogatories may NOT be used on nonparties.

Question 93

what is the scope of interrogatories

Answer 93

Interrogatories may relate to any non-privileged matter that is:
Relevant to any party’s claim or defense in the action; AND
Proportional to the needs of the case.

Question 94

how does a responding party respond to interrogatories

Answer 94

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 95

what is the duty to preserve relevant evidence

Answer 95

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

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

Question 96

Define attorney work-product doctrine

Answer 96

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.

HOWEVER, a writing that reflects an attorney’s impressions, conclusions, opinions, legal research, or theories is NEVER discoverable

Question 97

what are exceptions to the attorney work product doctrine

Answer 97

attorney work-product will not be protected from disclosure if

materials are otherwise unavailable, there is a substantial need for the material and the material cannot be obtained without undue harship

Question 98

what are some things that are NEVER discoverable

Answer 98

a writing that reflects an attorney’s impressions, conclusions, opinions, legal research, or theories is NEVER discoverable.

Question 99

how can a party assert attorney work-product privilege

Answer 99

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 100

Pretrial Conference Sanctions

Answer 100

The court may direct counsel and unrepresented parties to appear for pretrial conferences (to expedite the action, 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.

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 101

Failure to Participate in the Framing of a Discovery Plan

Answer 101

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 102

Rule 11(b) signature requirements

Answer 102

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 103

Rule 11(b) Representations to the Court

Answer 103

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 to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

It is not to be presented for any improper purpose, claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument, actual contentions have evidentiary support AND denials of factual contentions are warranted on the evidence

Question 104

Rule 11 sanctions opportunity to correct

Answer 104

Before a party may seek sanctions under Rule 11, the party must serve on the opposing party a motion that describes the specific conduct that allegedly violated the rule. The opposing party must be given 21 days to withdraw or correct the challenged pleading. If the 21-day period passes, and the pleading is not corrected, the motion for sanctions may be filed with the court.

Question 105

Rule 11 sanctions

Answer 105

The court (on motion or on its own) may issue sanctions for failing to comply with the above 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 106

Rule 11 imposition of sanctions

Answer 106

Sanctions may be imposed upon the defendants’ attorney, his law firm, and the defendants.

However, monetary sanctions for asserting an unwarranted legal contention may NOT be imposed upon the defendants, but only upon the attorney or his law firm.

Question 107

The court has ___________________ in imposing sanctions. The purpose of any sanctions award should be to deter similar future conduct by this lawyer or others.

Answer 107

considerable discretion

Question 108

Failure to Preserve Electronically Stored Information

Answer 108

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:

Upon finding prejudice to another party, may order measures no greater than necessary to cure the prejudice; OR

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: instruct jury to assume information was unfavorable, dismiss the action OR enter a default judgment

Question 109

Rule 12(b) Motions to Dismiss

Answer 109

Lack of subject matter jurisdiction;
Lack of personal jurisdiction;
Improper venue;
Insufficient process;
Insufficient service of process;
Failure to state a claim upon which relief can be granted; AND
Failure to join an indispensable party under compulsory joinder.

Question 110

Lack of subject matter jurisdiction motion timing

Answer 110

The defense of lack of subject matter jurisdiction may be raised at any time, even on appeal.

Question 111

Lack of personal jurisdiction motion timing

Answer 111

The defense of lack of personal jurisdiction must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived.

Question 112

Improper venue motion timing

Answer 112

The defense of improper venue must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived.

Question 113

Insufficient process timing motion

Answer 113

The defense of insufficient process must be raised in a pre- answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived.

Question 114

Insufficient service of process motion timing

Answer 114

The defense of insufficient service of process must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived.

Question 115

Failure to state a claim upon which relief can be granted motion timing and analysis

Answer 115

The defense of failure to state a claim may be raised in a
pleading, in a motion for judgment on the pleadings, or at trial.

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: the court must identify and reject legal conclusions unsupported by factual allegations THEN 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 116

Failure to join an indispensable party under compulsory joinder motion timing

Answer 116

The defense of failure to join an indispensable party may be raised in a pleading, in a motion for judgment on the pleadings, or at trial.

Question 117

motion for summary judgment analysis and timing

Answer 117

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

may be partial, denial is not appealable

Question 118

Motion for Judgment as a Matter of Law (JMOL)

Answer 118

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. A JMOL is a prerequisite for the making of a renewed motion for judgment as a matter of law after the trial.

Question 119

Renewed Motion for Judgment as a Matter of Law

Answer 119

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 120

motion for a new trial

Answer 120

reasons: error made at trial that renders judgment unfair, newly discovered evidence, prejudicial misconduct, verdict is against clear weight of the evidence, is based on false evidence or the verdict is excessive/inadequate

Question 121

If the verdict is ____________, the court may order a new trial OR offer the plaintiff __________, 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.

Answer 121

excessive, remittitur

Question 122

final judgment rule

Answer 122

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 123

res judicata definition

Answer 123

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.

Question 124

To bar a claim under res judicata:

Answer 124

The original claim must have resulted in a valid final judgment on the merits;
The original and later-filed causes of action must be sufficiently identical (i.e.,
related to the same transaction or occurrence); AND
The claimant and the defendant must be the same in both the original and later-filed action, or privity exists between the parties in the original and later-filed action.

Question 125

Collateral Estoppel (Issue Preclusion)

Answer 125

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.

Question 126

To bar an issue under collateral estoppel:

Answer 126

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);
The issue must have been actually litigated in the prior action;
The issue must have been determined by a valid final judgment on the merits;
AND
The determination of the issue must have been essential to the prior judgment.

Question 127

Default Judgments

Answer 127

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 128

Interlocutory Orders definition

Answer 128

An interlocutory order is an order that is provisional, interim, temporary, or non-final (e.g., TROs).

Question 129

Appeal of Interlocutory Orders

Answer 129

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 130

Collateral Order Doctrine

Answer 130

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 131

Mandamus Review

Answer 131

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.