Civil Procedure

Question 1

Service on a minor or legally incompetent defendant

Answer 1

Under FRCP 4(g), a minor or legally incompetent defendant can only be served with process by following by the service rules of the state where service is made

Question 2

2 dismissal rule

Answer 2

Under the two-dismissal rule, a voluntary dismissal operates as an adjudication on the merits when the plaintiff 1) voluntarily dismissed an action in federal or state court without a court order, and 2) filed a notice of voluntary dismissal in a second action on the same claim in federal court.

Question 3

Class action jx (no CAFA)

Answer 3

A federal court has diversity jurisdiction over a class action when 1) the named opposing parties are citizens of different states, and 2) the amount in controversy for any named plaintiff’s claim exceeds $75,000

Question 4

Who has to be served when you’re suing the federal government in its federal capacity?

Answer 4

When suing the United States, it’s agencies, or it’s employees, the plaintiff must serve process 1) on the US attorney (or designated agent) for the district where the suit is filed, or the civil process clerk at that US attorney’s office, 2) the US attorney general, AND 3) any agency or officer whose official conduct is being challenged

Question 5

Defending a motion to compel on an RFP

Answer 5

In a response to a motion to compel the production of electronically stored information (ESI), the producing party must show that the ESI is not reasonably accessible due to undue burden or cost.

If undue burden or cost is shown, the court will order the production of the ESI only if the requesting party demonstrates good cause for the production.

Question 6

requirements for a motion to compel

Answer 6

A motion to compel must include certification that the movant has, in good faith, conferred or attempted to confer with the non compliant party or nonparty.

A motion to compel a party must be filed with the court in which the action is pending, while a motion to compel a no party must be filed in the court where the discovery is or will be taken.

Question 7

14-day deadlines

Answer 7

1. after a pre-answer motion was denied to file an answer
2. after original answer was served to file a third party complaint without leave
3. after initial conference to submit proposed discovery plan and initial disclosures
4. after last pleading is filed to demand a jury trial

Question 8

21-day deadlines

Answer 8

1. after service of a complaint, counterclaim, or crossclaim to serve an answer or a pre-answer motion
2. after the pleading was served to amend the pleading as a matter of course
3. BEFORE scheduling order is due to hold an initial conference
4. to serve a reply to an answer

Question 9

28-day deadlines

Answer 9

1. to renew a motion for a judgment as a matter of law
2. to move for a new trial
3. to move to alter or amend a judgment
4. to move for amended filings after a final judgment

Question 10

30-day deadlines

Answer 10

30 days is the deadline for most discovery procedures

1. to file notice of removal after receipt of an initial pleading
2. to move to remand after a notice of removal is filed
3. to submit pretrial disclosures BEFORE trial
4. to respond to interrogatories, requests for production, and requests for admission
5. to move for summary judgment after close of discovery
6. to file notice of an appeal

Question 11

60-day deadlines

Answer 11

1. to file an answer or a pre-answer motion after domestic service of process is waived
2. to serve an answer after service of process if defendant is a US agency or employee
3. to file a notice of appeal after a final judgment if one party is the US, a federal agency, or a federal employee sued for conduct in their official capacity

Question 12

90-day deadlines

Answer 12

1. serve process after complaint is filed
2. file answer or pre-answer motion after foreign service is waived
3. disclose expert witnesses before trial

Question 13

Where to file a notice of appeal?

Answer 13

A notice of appeal must be filed with the clerk of the district court, not the appellate court.

Answer 14

The time to file a notice of appeal with the district court is extended to 60 days after the final judgment when one of the parties is the United States, a federal agency, or a federal officer or employee sued for conduct related to government activities.

Answer 15

Federal law provides that for diversity purposes, Executor is deemed to be a citizen only of the same state as the decedent.

Answer 16

The fifth amendment double jeopardy clause prohibits a second prosecution following a conviction or an acquittal for the same criminal offense, not distinct offenses. But all known charges against a defendant need not be brought in the same prosecution

Answer 17

When a subsequent but distinct charge stems from the same transaction as the first, double jeopardy is not implicated

Question 18

What should a party do when a evidence is erroneously excluded in a civil case and judgment is entered against them as a result?

Answer 18

A motion for a new trial can be made in several grounds, including that a prejudicial trial error occurred because the trial court erroneously admitted evidence that should have been excluded. Note that an erroneous ruling on evidence can also be the grounds for an appeal, but the appeals process is slower.