Civil Procedure

Question 1

When to demand a jury trial

Answer 1

A jury trial demand must be served no later than 14 days after service of the last pleading directed to the issue on which a jury is sought. A jury trial demand may be included in a pleading

Question 2

Defendant Third Party Claim

Answer 2

A defendant may serve a third-party claim only on a nonparty “who is or may be liable to it for all or part of the claim against it.

The basis of the claim must be derivative liability

Question 3

Juror Presumption of Bias: Previous Employment

Answer 3

Stock ownership or having worked for or having a spouse who works or worked for one of the litigants, has been found to create a presumption of bias that merits striking a potential juror for cause

Question 4

Peremptory Challenges

Answer 4

Allow an attorney to disqualify a potential juror because the juror has displayed an attitude or characteristic that is unfavorable to the attorney’s client but that does not rise to the level of bias or a relationship to one of the litigants that would be grounds for a challenge for cause.

Question 5

Jury Challenge For Cause

Answer 5

A challenge for cause requires the court’s objective determination as to whether the potential juror meets the statutory qualifications for jury duty. In making the determination, the court will consider only a potential juror’s relationship to one of the litigants or evidence of bias or prejudice regarding one of the litigants.

Question 6

Abuse of Discretion Standard of Review

Answer 6

A determination as to whether evidence is irrelevant or highly prejudicial and should be excluded is within the trial court’s discretion because it requires an understanding of the entire case and the factual context in which the evidence is being offered

Question 7

Request to extend discovery after summary judgment t

Answer 7

Rule 56(0) the non moving on a motion for summary judgement to submit an affidavit or declaration stating that more time is needed to take discovery before responding. The affidavit must specific what that discovery will be and how it will help in resisting the motion.

Question 8

Failure to Attach Evidence in a Motion for Summary Judgement

Answer 8

A party moving for summary judgement does not need to disprove the nonmovant’s claim. It is enough for the moving to “point out” what appears to be a fatal gap in the proof.

Question 9

Court Standard for Renewed Motion for Judgement as a Matter of Law

Answer 9

A court must let the jury’s verdict stand if there is substantial evidence - more than a scintilla - supporting the verdict, assuming that the jury resolved all disputed issues in the nonmovants favor

Question 10

Example of when a Motion to Strike is Appropriate

Answer 10

The Elimination of an irrelevant defense

Question 11

Legal vs Equitable Issues Presented

Answer 11

When both legal and equitable issues are presented in a case, a court must submit the legal issues to the jury first and then the court can resolve any remaining equitable issues. If any issues overlap, the court is bound by the jury’s resolution of the overlapping issues.

Question 12

Does a court of appeals have jurisdiction only over final judgements?

Answer 12

Yes

Question 13

Multiple Defendant Removal

Answer 13

If multiple defendants are served at different times and a later-served defendant initiatives removal, the earlier-served defendants may join in the removal, even if their original 30-day window has closed.

Question 14

Where is venue proper?

Answer 14

Venue is proper in a judicial district in which a substantial part of the events giving rise to the claim occurred.

Question 15

Exceptions to the General Rule that Diversity cases maybe removed to federal court

Answer 15

Nonremovable actions include:
1) certain claims under the Violence Against Women Act of 1994
2) Some actions against railroads
3) claims that arise under a state worker’s compensation law where the action was filed

Question 16

Compulsory Counterclaim Amount in Controversy

Answer 16

If the claim does not meet the amount in controversy minimum for federal diversity jurisdiction, supplemental jurisdiction authorizes jurisdiction over claims that otherwise would not meet the amount in controversy require
(So long as original claim meets Fed Diversity Jurisdiction)

Question 17

When can a court modify a pre trial order?

Answer 17

Court may ONLY modify the order issued after a final pre trial conference if it is to prevent manifest injustice.

Question 18

Is additur allowed in Federal Court?

Answer 18

No, is not allowed in Federal Court, including those in diversity as it has been held unconstitutional under the 7th Amendment.

Question 19

When the deposed Party is a corporation

Answer 19

When the named party is a corporation, in its notice or subpoena, a party may name as the despondent a public or private corporation, a partnership, an association, a governmental agency or other entity and must describe with reasonable particularity the matters for examination.

Question 20

When is removal proper?

Answer 20

Removal is only proper to the federal district where the original state court action is pending

Question 21

Where is proper venue for removal?

Answer 21

Proper venue for removal is the federal district court located in the state where the original case was filed.

Question 22

Amendment by Right

Answer 22

A party may amend a pleading once as a matter of course within 21 days after serving it.

Question 23

Factual Allegations of the Complaint

Answer 23

A complaint must contain sufficient factual allegations to allow a district court to find that the claim is plausible, not merely possible.

Question 24

Minimum Contacts Property Ownership

Answer 24

A defendant who owns property in the forum that is entirely unrelated to the cause of action may not be subject to jurisdiction unless minimum contacts are established.

The mere presence of property within a state, which is unrelated to the lawsuit, and no other contacts with the forum, is insufficient to satisfy the requirements of due process.

Question 25

Issue Tried by Consent

Answer 25

An issue may be tried by consent under FRCP 15(b)(2) which states “When an Issue is not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings.

Question 26

Impleader Requirement

Answer 26

An original defendant may only implead a third party by alleging derivative liability, not by simply claiming the plaintiff sued the wrong defendant.

Question 27

Assert a Fact is genuinely disputed

Answer 27

Party asserting that a fact is genuinely disputed must support the assertion by citing particular parts of the record, including affidavits or declarations, stipulations, or discovery materials. Cannot simply rely on the complaint allegations to rebut evidence

Question 28

Class Action Settlement Agreement

Answer 28

When a class action lawsuit reaches a settlement agreement, the court is required to hold a hearing and approve of the settlement so as to ensure it is “fair, reasonable, and adequate” for the class

Question 29

When motion for JMOL and Motion for New Trial are Combined

Answer 29

If judge grants a JMOL for the movant, judge must also conditionally rule on the motion for a new trial.

Question 30

Federal Common Law Claim Preclusion

Answer 30

Federal Common Law governs the claim preclusive effect of a dismissal by a federal court sitting in diversity

Question 31

FRCP 11(c)(2)

Answer 31

Party seeking sanctions must serve a separate motion on the other party, but may not file the motion if the challenged paper, claim, or defense is withdrawn or appropriately corrected within 21 days after the service (safe harbor)

Question 32

Is a whether a court may authorize a physical examination a procedural or substantive question?

Answer 32

Procedural

Question 33

Appellate Court Discretion to Hear Questions of Law

Answer 33

An exception to the general rule against hearing new issues on appeal often arises when a pure question of law is raised. Has discretion to hear

Question 34

Standard of Review For Appellate Court to Reduce Punitive Damages as Unconstitutionally Excessive

Answer 34

Reviews the determination de novo