Civil Procedure

Question 1

Removal

Answer 1

D has 30 days once its removable to remove; can never be more than 1 year

If a diversity case, if D is a resident of the forum, they cannot remove

Question 2

Entitled to jury for

Answer 2

legal issues only; assert in complaint/answer

Question 3

removal

Answer 3

fed discretion does not have discretion to decline removal

Question 4

cross claims

Answer 4

allowed, even if D is asserting their own injury claim against TPD from same T/O

Question 5

Erie

Answer 5

is federal law, FRCP on point? If so, go with that. If not, THEN ask if it was substantive

Question 6

pre-trial conferences

Answer 6

judge can order on anythign that’s relevant, including pressuring to settle

Question 7

pleadings / good faith

Answer 7

when attorney signs, they are attesting that they have taken a good faith effort to look up relevant facts/legal issues (e.g., statute of limitations). can be sanctioned if don’t do good faith

Question 8

summary judgment - what can judge consider?

Answer 8

thigns under oath! affidavits etc.

Question 9

Default judgement collateral attack

Answer 9

allowed for constitutional or procedureal issues (lack of SMJ, lack of service of process)

Question 10

Costs of compelling disocver?

Answer 10

only allowed when good faith effort has been made with other side to resolve dispute before a motion to the court to order reasonable costs

Question 11

Advisory opinion

Answer 11

where judicial opion has no effect, reviewable by another branch of the government
Federal courts are not allowed to issue (state courts can)

Question 12

Who can remove?

Answer 12

Only the defendant

Question 13

How long does D have to answer or file 12 b motion?

Answer 13

21 days

Question 14

When can P amend

Answer 14

once within 21 days of D’s first rule 12 response (P)
D - once within 21 days of serving answer

After time has passed, must seek leave of court or get consent from other party

Question 15

Amendment after SoL - relates back

Answer 15

new claim can be added to proper first claim so long as it relates back (same T/0)

To Change D - (1) same T/O, D must have had knolwedge oef case, (3) D knew or should have known mistake they would be named

Question 16

Necessary parties - joint tortfeasors?

Answer 16

Never necessary

Question 17

Class requiremenets

Answer 17

numerosity
Commonality
Typicality
Representative Adequate

Question 18

Types of classes

Answer 18

Prejudice (always bound) (rare)
Injunctive (e.g., employer refusing vacation time) always bound
Common question or damages (mass torts): common questions that predominate and class is superior method

Question 19

Class certification

Answer 19

immediatley appealable

Question 20

Initial disclosures - when?

Answer 20

14 days from 26(f) conference

Question 21

initial disclosures

Answer 21

(1) identity of people with discoverable info that you may use to support claims or defenses
(2) documents and things used to support (including ESI)
(3) computation of relieve
(4) insurance coverage

Failure do disclose = can’t use at trial

Question 22

Expert witness disclosures

Answer 22

(1) identify and witness report for EWs

Consulting expert info is NOT discoverable

Question 23

Discoverable info

Answer 23

anything relevant to claim/defense and proportional to teh case

Question 24

Interroggatories

Answer 24

Parties only! can’t refuse to answer something just because it is burdensome

Question 25

request to produce

Answer 25

send to parties only, usually for ESI (30 days to response)

Question 26

if a party provides incompelte discovery?

Answer 26

Can to motion to compel, but must certify that moving party has made good faith attempt with opponent to obtain discovery wtihout court intervention

can get atty fees if other party complies with order, sanctions if they do not

Question 27

Default judgment - timing

Answer 27

D doesn’t respond in 21 days of service (60 days if waiveD)
P moves for entry from the clerk
P then moves for default judgment, which can do if D has made no appearance, damages are certain, (3) P gives affidavit on amount, and D is not minor or incompetent

Question 28

Motion to dismiss timing

Answer 28

before D files answer and up through trial if failure to state a claim upon which relief can be granted (unlike 3Ps and V)
Key test: is there a plausible complaint

Question 29

Party deamdns jury trial within

Answer 29

14 days of last pleading that addresses jury trial issue and serve on ALL parties (otherwise waive). Last pleading usually teh answer

Question 30

Entry of judgement

Answer 30

Stayed for 30 days, always

Question 31

Inconsistent general verdict + written questions

Answer 31

judge can order jury to reconsider the verdict or order a new trial

Question 32

Juror misconduct

Answer 32

jurors can be impeached only on exernal matters - wont’ set aside verdict b/c jurors didn’t follow instructions or said their opinions

Question 33

reasons for motion for new trial

Answer 33

erroneous jury instruction
new evidence that could not have been discovered with due diligence
misconduct by jury/lawyer
seirous error of judgement
damages are inadequate or excessive

Question 34

Motion for relief from judgement

Answer 34

clerical error & SMJ: anytime
mistake, fraud/misrepresentation: reasonable time, never more than 1 year

newly discovered facts that could not have been discovered for new trial motion (28 days) but existed at time of trial and could not have been foudn with due diligence (reasoanble time, never more than 1 year)

Question 35

Interlocutory appeals act

Answer 35

non final order reviewable if (1) judge certifes non-final order as contrlling issue of law and (2) substantial groudn for different opinions and (3) appeals court agrees to hear

Question 36

Claim preclusion

Answer 36

Same P vs. Same D,
final, valid, judguement on teh merits
Same claim (same T/O)

Question 37

Collateral estoppel (issue)

Answer 37

Final judgement on the merits in case 1
same issue was actually litigated and determined
essential to judgement (basis for judgement)
used AGAINST someone who was party in case 1 (or inprivity - employers are not in privity - e.g., same class in class action)
used by (1) party to case 1 or (2) non-party (non-mutual)

Question 38

How long to appeal?

Answer 38

30 days

Question 39

14 days (5)

Answer 39

time to file answer after denial of rule 12
expiration of TRO
jury demand after last pleading
appeal class action certficiation
tiem before trial to submit settlement offer

Question 40

21 days

Answer 40

file answer or 12b motion
amend pleading once
withdraw pleading after rule 11

Question 41

28 days

Answer 41

RJMOL

motion for new trial

Question 42

30 days (5)

Answer 42

Time to remand
Time to remove
rreturning request to waive service of process
time for appeals after trial)
time after close of discover to bring motion for SJ
automatic stay of enforcement of judgement

Question 43

1 year

Answer 43

outer time limit for removal in diversity case
motion for relief of order of judgment (mistake, fraud, new info that could not have been discovered in tiem for new trial motion, due diligence)

Question 44

Anytime

Answer 44

Clerical error/SMJ

Question 45

60 days

Answer 45

time to file answer if waive service of process

Question 46

90 days

Answer 46

time to serve process