Civil Procedure

Question 1

When a judge issues a judgement, what should it be supported by?

Answer 1

Findings of fact and conclusions of law.

Question 2

Are potential D’s who might be jointly and severally liable a required party?

Answer 2

No. Required parties must join via “Joinder.”

Question 3

Required Joinder

Answer 3

Required joinder is for parties who are required. Steps for determining whether a party is required:

1. Required for the court to be able to accord complete relief among the existing parties; OR
2. Has an important interest in the case such that NOT joining them will either cause them practical impairment in protecting their interest OR expose an existing party to substantial risk of multiple or inconsistent liability

Question 4

Amended Pleading (time)

Answer 4

A party may amend pleading once as a matter of course within 21 days after serving it. See if SOL has ran

Question 5

Are parties wishing to call expert witness during trial required to disclose name/address/phone number of expert?

Answer 5

Yes its mandatory and the list must be furnished at least 90 days prior to trial. There is also a duty to supplement one’s prior disclosures. If parties in discovery phase and initial disclosures have already been made, other party must wait for additional supplementary disclosures before court will intervene (90 days before trial)

Question 6

Collateral Order Doctrine

Answer 6

Generally order reviewable on appeal 30 days after final judgement. But the collateral order doctrine is a narrow exception to the finality requirement for appeals. Typically, only final orders are reviewable by the appellate court, however under this doctrine, a claim or issue may be immediately appealable if it is too important to wait. Must meet these three requirements:

1. lower court must have conclusively determined the disputed question;
2. The issue must be separate from and collateral to the merits of the main issue of the case; and
3. issue must be effectively un-reviewable on an appeal from the final judgment

Question 7

7th Amendment - Right to Jury

Answer 7

7th Amendment provides that in suits at common law, the right to trial by jury shall be guaranteed if the damages amount exceed $20. This only applies to federal trials and not state trials

Question 8

Does 5th amendment privilege apply to corporations?

Answer 8

No. Only applies to individual person.

5th Amendment - protects persons from being compelled to give self incriminating testimony by the government.

Question 9

Temporary Restraining Order (TRO) expiry

Answer 9

Expires 14 days after issued. Extension can only be granted for good cause if adverse party consents

Question 10

Sixth Amendment

Answer 10

D’s Sixth Amendment right to counsel at all critical stages of a prosecution, which attaches after formal proceedings have begun. Therefore, once a D is indicted and the right to counsel has attached, prosecution/police may not use deception to deliberately elicit statement related to the crimes unless he is given access to counsel or provides a valid waiver to have counsel present.

Question 11

Renewed JMOL Timing

Answer 11

Court cannot extend time to act even in good faith. Must be filed no later than 28 days after judgement has been entered

Question 12

When are 12(b)(6) motions generally made?

Answer 12

BEFORE the D files their answers

Question 13

Service of Process

Answer 13

Service may be made by:

1. personally serving the party;
2. by leaving the summons and complaint at the D’s residence with a person of suitable age and discretion;
3. by serving an agent appointed or designated by law to receive process; or
4. by serving the party in the manner provided by either the law of the state where the district court sits or in manner provided by the law of the state where the person is being served

Question 14

Temporary Restraining Order

Answer 14

TRO is form of injunctive relief granted when it is necessary to prevent irreparable injury to a party and the injury will result before a preliminary injunction hearing can be held

TRO can be granted WITHOUT notice of hearing to the adverse party if three requirements are met:

1. moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition;
2. the moving party certifies in writing all efforts to give notice of hearing if any and reasons why notice should not be required; AND
3. moving party provides some security, the amount of which is determined by the court, to pay for any costs and damages incurred by adverse party if he has wrongfully enjoined or restrained