Civil Procedure

Question 1

Personal Jurisdiction

Answer 1

Personal jurisdiction involves the court’s power over the D or property. It must be authorized by a state statute and meet constitutional requirements. States generally require that the D be present in the forum state at the time of service, be domiciled in the forum state, give express or implied consent to jurisdiction, or meet the requirements of the forum state’s long arm statute. The Constitution generally requires that the courts’ power over the D does not violate due process, which requires considering minimum contacts, relatedness, and fairness. Contacts requires the D to show they purposefully availed themselves to the forum state’s laws, and that it was reasonably foreseeable they would be haled into court there. Relatedness requires specific jurisdiction or general jurisdiction over the D. Fairness requires considering a variety of factors. The D’s failure to challenge personal jurisdiction in their first motion/answer to the court waives this challenge.

Question 2

Personal Jurisdiction - Minimum Contacts

Answer 2

If the court does not have jurisdiction over the traditional bases, then the defendant must have minimum contacts with the forum state. This requires the defendant to have purposefully availed themselves to the benfits of the forum state. This availment makes it foreseeable that the defendant would be haled into court there, and the claim must be related to the defendant’s in-state activities.

Question 3

Personal Jurisdiction - Relatedness

Answer 3

The claim must be related to the defendant’s contact with the forum. General personal jurisdiction means the defendant lives in the state, whereas specific personal jurisdiction means the claim arose in the state.

Question 4

Personal Jurisdiction - Fairness

Answer 4

Fairness requires considering whether (1) the forum is “so gravely difficult and inconvenient” that the defendant is at a severe disadvantage; (2) the forum state has a legitimate interest in providing redress for its residents; (3) the plaintiff’s interest is in obtaining convenient and effective relief; (4) the interstate judicial system’s interest is in efficiency; and (5) the shared interest of the states is in furthering social policies

Question 5

Personal Jurisdiction - Traditional Bases

Answer 5

Courts will have general jurisdiction over the parties if they have property in the forum, are domiciled in the forum, consent to jurisdiction within the forum, or are tagged within the forum

Question 6

Subject Matter Jurisdiction

Answer 6

Subject matter jurisdiction involves the court’s power over the subject matter. Generally, state courts are of general jursidiction and can hear any case, and federal courts are of limited jurisdiction and can only hear specific cases. The defendant’s failure to challenge subject matter jurisdiction in their first motion/answer to the court does not waive this challenge – this can be brought up at anytime because without subject matter jurisdiction, the court cannot hear the case (and any judgment is void).

Question 7

Subject Matter Jurisdiction - Federal Question

Answer 7

Federal courts have original jurisdiction over cases where the cause of action is based on federal law. This requires the plaintiff to submit a well-pleaded complaint, showing the federal question on the face of the complaint and how the federal law substantially and directly bears on the case. The federal question cannot be raised as an anticipatory defense or rebuttal.

There must be a private right of action for federal question claims. Failure to show an express private right of action via a public statute or an implied private right of action via a judicially-created right, then the court can only hear the case if the federal law is an ingredient and the claim depends on a substantial federal question.

Question 8

Subject Matter Jurisdiction - Federal Question - State Law

Answer 8

The claim cannot be based on state law with some minor issue of federal law. A state law based claim can only be raised as a federal question when the well-pleaded complaint’s right to relief under state law requires a resolution of a substantial question of federal law. This requires (1) the federal issue to be an ingredient in the case and part of the well-pleaded complaint; (2) the federal issue must actually be disputed in the case; (3) the federal issue must be substantial, whose resolution is important to the federal system as a whole; and (4) allowing an exception to the general rule will not disturb the balance between federal and state judicial systems

Question 9

Subject Matter Jurisdiction - Federal Diversity

Answer 9

Federal courts can exercise jurisdiction over cases where the parties are diverse and the amount in controversy exceeds $75,000.

Complete diversity between the parties is required – the plaintiffs must not share citizenship with any of the defendants at the time the complaint is filed. The amount in controversy may be satisfied by any single plaintiff aggregating all of their claims against a single defendant – the claims do not need to be related to each other.

Question 10

Subject Matter Jurisdiction - Federal Diversity - Domiciles

Answer 10

People are citizens of the state they are domiciled in. They can change domiciles when they expressly show intent to move to a new state and they physically move there.

Corporations are domiciled in the state(s) they are incorporated in and in the state they have their headquarters.

Unincorporated partnerships are citizens of every state in which a partner resides.

Question 11

Supplemental Jurisdiction

Answer 11

Supplemental jurisdiction is the authority of the federal courts to hear additional claims substantially related to the original claim.

The additional claims do not need supplemental jurisdiction if they independently have subject matter jurisdiction via federal question or diversity. If there is no subject matter jurisdiction, then supplemental jurisdiction may apply when (1) the additional claims arise from the same transaction/occurrence and (a) the main claim is under federal question jurisdiction or (b) the main claim is under diversity with multiple plaintiffs and one of the plaintiff’s claims does not meet the amount in controversy requirement.

If the case is brought as a diversity action, there generally is no supplemental jurisdiction if such claims would destroy complete diversity. However, a crossclaim by a defendant can be given supplemental jurisdiction for a claim against another defendant, even if they are from the same state.

Question 12

Removal Jurisdiction

Answer 12

Removal jurisdiction allows a defendant to move a civil action filed in a state court to a federal court if the defendant finds the state court improper. The defendant can remove the case to federal court by filing notice of removal with the federal court and removing the case to district court that geographically embraces the state court that the case was originally filed in, as long as it is within 30 days of the last defendant’s service of process and all defendants join in the removal. The federal court must have a basis for exercising subject-matter jurisdiction over the action (federal question or diversity). A motion to remove does not count as a response or an answer.

Plaintiffs cannot never remove, even if they are served with a counter claim, but they can move to remand the case back to state court if they find the removal improper, as long as it is within 30 days after the filing of the notice of removal.

Defendants cannot remove on the basis of diversity jurisdiction if any defendant is a citizen of the forum state, or if it has been over a year after the case was filed in state court.

Question 13

Law Applied in Federal Court - Erie

Answer 13

When there is a diversity case in federal court, the Erie doctrine determines what law will apply.

If there is federal law on point that directly conflicts with state law, then the federal law will be applied. Any on point FRCP is presumptively valid as it is arguably procedural.

If there is no federal law on point, then the judge must apply state law if the issue is clearly substantive (i.e., conflict of law rules, elements of a claim or defense, statutes of limitations, rules for tolling statutes of limitations, and the standard for granting a new trial because the jury damages were excessive/inadequate).

If there is no federal law on point and the issue is not clearly substantive, then the judge must determine whether the issue is substantive by considering outcome determinative, balance of interests, and avoidance of forum shopping.

Question 14

Venue

Answer 14

Venue is where the parties may bring a case. A plaintiff may lay venue in any district where (1) all defendants reside (i.e., residential), or (2) a substantial part of the claim arose or a substantial part of the property involved in the lawsuit is located (i.e., transactional). A defendant resides in the district they are domiciled, and a business defendant resides in all districts where it is subject to personal jurisdiction.

Question 15

Venue - Transfer

Answer 15

Any party may move to transfer the case from one court in a judicial system to another court in the same judicial system. The case will be transferred if all parties consent and the court finds cause for the transfer.

Question 16

Venue - Transfer - OG is Proper

Answer 16

If the original district is a proper venue, then the court can order transfer based on the parties’ convenience and in the interests of justice. The burden is on the person seeking the transfer, and the court will consider public and private factors. The transferee court must apply the choice of law rules of the transferor court.

Question 17

Venue - Transfer - Forum Selection Clause

Answer 17

If the transfer is pursuant to a forum selection clause, then it is likely one party is attempting to enforce the clause. In federal court, federal law (not state law) governs transfer – so if the clause is reasonable, then it will likely be enforced (even if it would not be enforced under state law). With a valid clause, only public interest factors are considered for transfers. When transfer is to enforce a clause, then the transferee will apply its own choice of law rules.

Question 18

Venue - Transfer - OG is Improper

Answer 18

If the original district is an improper venue, then the court may transfer in the interest of justice or dismiss. Courts will try to transfer if possible. The transferee court may apply its own choice of law rules.

Question 19

Notice and Service of Process

Answer 19

The plaintiff begins the process by filing a complaint with the court, and presenting summons for the clerk’s signature and seal. The plaintiff must serve a copy of the summons and complaint (together, process) to each defendant within 90 days after the complaint is filed. Process may be served by any person who is at least 18 years old and not a party. Defendants have a duty to avoid unnecessary expenses of serving summons and may waive service.

Question 20

Notice and Service of Process - How can Individual/Corporate Defendants be Served Process

Answer 20

Individuals within the U.S. may be served (1) personally and anywhere; (2) to someone of suitable age and discretion that resides at their usual place of abode; (3) to their agent; or (4) in accordance with state law methods, like mail.

Businesses and organizations within the U.S. may be served by (1) delivering to an officer or a managing or general agent, or (2) in accordance with state law methods.

Minors or incompetent people in the U.S. may be served only in accordance with state law methods.

Parties outside the U.S. may be served in accordance with international agreements, as directed by a U.S. court, in accordance with the foreign country’s law, or so forth.

Question 21

Notice and Service of Process - Waiver of Process

Answer 21

A defendant can waive service of process. To request this waiver, the plaintiff must (1) mail the defendant a notice and a request to waive service; (2) with prepaid means of returning the form; and (3) the waiver must be executed and mailed back to the plaintiff within 30 days (if in U.S.) or 60 days (if outside U.S.). Waivers for service of process does not waive any defenses. Waivers are effective upon filing in court and the date of filing is used in lieu of the date of service of process. Failing to return the waiver form with good cause means the defendant must pay the costs of service.

Question 22

Notice and Service of Process - Service Immunity for Defendant

Answer 22

A defendant cannot be served with process if they are in a state to appear as a party, witness, or attorney in a different civil case in that state.

Question 23

Pleadings - Plaintiff’s Complaint

Answer 23

The plaintiff’s complaint must contain (1) a statement of grounds of subject matter jurisdiction; (2) a short and plain statement of the claim showing the plaintiff is entitled to relief; and (3) a demand for relief sought. The plaintiff must plead sufficient facts to support a plausible claim (though fraud, mistake, and special damages requires more details and must be plead with particularity or specificity), and plausibility will be determined by the judge’s experience and common sense.

Question 24

Pleadings - Defendant’s Response

Answer 24

A defendant’s response must be a motion or answer no later than 21 days after being served with process, or no later than 60 days from when the plaintiff mailed the waiver form. An answer must admit, deny, or state insufficient knowledge, as well as raise any affirmative defenses (or else it will be waived). If the defendant does not respond, then that is a default.

A denied motion to dismiss under Rule 12 must be followed by the defendant’s answer no later than 14 days after notice of the denial.

Question 25

Pleadings - Defendant’s Response - Motions

Answer 25

A motion is a request for a court order. Issues of form motions include Rule 12(e) motion for more definite statement and Rule 12(f) motion to strike redundant or immaterial things from a pleading (any party can move to strike). Waivable defenses under Rule 12(b) include lack of personal jurisdiction, improper venue, improper process, and improper service of process. Unwaivable defenses under Rule 12(b) include failure to state a claim and failure to join an indispensible party (can be made as late as trial), and a lack of subject matter jurisdiction (can be made at any time).

A denied motion to dismiss under Rule 12 must be followed by the defendant’s answer no later than 14 days after notice of the denial.

Question 26

Pleadings - Amending Pleadings

Answer 26

The plaintiff has a right to amend their complaint once no later than 21 days after the defendant serves their first Rule 12 response. The defendant has a right to amend their answer once no later than 21 days after serving it.

If the right to amend has expired, then the court may grant leave to amend if justice so requires.

If the evidence at trial does not match what was pleaded, then the court may move to amend the complaint to conform to the evidence.

Question 27

Pleadings - Relating Back

Answer 27

An amended pleading will relate back (1) to join a claim not originally asserted if the plaintiff concerns the same conduct, transaction, or occurrence as the original pleading; or (2) to change a defendant if the amendment concerns the same conduct, transaction, or occurrence as the original pleading, the defendant had such knowledge of the case, and the defendant knew that, but for a mistake, they would have been named originally.

Question 28

Pleadings - Right to File Supplemental Pleadings

Answer 28

There is no right to file a supplemental pleading, but parties may make a motion. The trial court has the discretion to grant or deny.

Question 29

Pleadings - Rule 11 Signature

Answer 29

Rule 11 applies to all papers except discovery. Signature means the lawyer certifies to the best of their knowledge, after reasonable inquiry, that the paper is not for an improper purpose; the legal contentions are warranted by law or nonfrivolous argument for a law change; and the factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation.

Question 30

Pleadings - Sanctions

Answer 30

Sanctions are used to deter bad conduct, but the court must give the sanctioned party an opportunity to be heard. Sanctions are usually non-monetary, but can be monetary and paid to the court. If a party violates Rule 11, then they have safe harbor for 21 days to fix the problem and to avoid sanctions.

Question 31

Joinder

Answer 31

Joinder rules define the scope of the case (i.e., how many parties and claims can attach to one case). The joinder must be allowed by the FRCP and there must be subject matter jurisdiction (or at least supplemental jurisdiction) over the additional claims.

A plaintiff can easily join additional claims against an adverse party, even if the additional claim is unrelated to the original claim, as long as there is subject matter jurisdiction over the additional claims.

A defendant can also join additional claims against the plaintiff or another defendant, as long as there is subject matter jurisdiction over the additional claims.

BASICALLY, NEEDS SMJ, P -> SAME T/O AND ONE COMMON Q, D -> COMPULSORY SAME T/O, PERMISSIVE NOT SAME T/O.

Question 32

Joinder - (Multiple) Plaintiffs

Answer 32

The claims by the multiple plaintiffs must (1) arise from the same transaction or occurance, and (2) raise at least one common question of law or fact.

Question 33

Joinder - Absentee

Answer 33

The court can force a nonparty (absentee) to join the case if they are necessary (required). An absentee is required if the court cannot provide complete relief among the existing parties, the absentee’s interest may be harmed if they are not joined, or the absentee claims an interest that subjects a party to a risk of multiple obligations.

A required absentee can only be joined if joinder is feasible – there must be (1) personal jurisdiction over the absentee, and (2) there must be subject matter jursidiction over the claim or against the absentee. If the absentee cannot be joined, then the court must consider alternative forums, actual likelihood of harm to the absentee, and shaping relief to avoid that harm to the absentee.

Question 34

Joinder - Defendants

Answer 34

A defendant can join additional claims via a counterclaim against the plaintiff or a crossclaim against a co-party.

The counterclaim is part of their answer to the plaintiff, and the plaintiff must respond under Rule 12 within 21 days of service of the counterclaim. Counterclaims can be (1) compulsory, meaning they arise from the same transaction/occurrence as the plaintiff’s case and must be raised (or else they are considered waived); or (2) permissive, meaning they do not arise from the same transaction/occurrence and do not need to be raised.

Crossclaims are permissive.

Question 35

Joinder - Impleader

Answer 35

Impleader allows a defending party to bring in a third-party. The party bringing the new party becomes a third-party plaintiff. The new party becomes a third-party defendant. This allows the defending party (usually the defendant) to shift their liability to the third-party defendant. Indemnity shifts liability completely, so the third-party defendant must cover the full claim. Contribution shifts liability pro-rata, so the third-party defendant only covers a pro-rata portion of the claim. Impleader claims are permissive.

Impleader requires the defendant to (1) file a third-party complaint naming the third-party defendant, and (2) have that complaint formally served on the third-party defendant. The right to implead must be within 14 days of serving the answer, or by the courts permission.

When the third-party defendant is joined, the plaintiff and third-party defendant may assert claims against each other provided that the claims arise from the same transaction/occurrence as the underlying case.

Question 36

Joinder - Intervention

Answer 36

Intervention allows a nonparty absentee to bring themselves into the case as a plaintiff or defendant. The intervention must be timely, and it can be (1) of right, meaning the absentee’s interest may be harmed if they are not joined and the interests are not adequately represented by the current parties; or (2) permissive, meaning the absentee’s claim or defense and the pending case have at least one common question of law or fact.

Question 37

Joinder - Interpleader

Answer 37

Interpleader applies if separate actions might result in double liability against a stakeholder. An interpleader suit allows a person or stakeholder to require two or more adverse claimants to the stake to litigate among themselves to determine which has the valid claim to it. This includes (1) Rule 22 interpleader which requires federal question or diversity claim; and (2) statutory impleader which only requires diversity and amount in controversy of $500.

Question 38

Joinder - Class Actions

Answer 38

Class actions allow representatives to sue on behalf of a group. This requires (1) too many class members for practicable joinder; (2) some issue in common to all class members; (3) the representatives’ claims to be typical to the class’s claims; and (4) the representative to fairly and adequately represent the class.

A case is not a class action unless the court grants the motion to certify it as a class action. The court must also define the class and the class claims/issues/defenses, and appoint class counsel to fairly and adequately represent the interests of the class.

The class action must fall under one of three types of class actions: (1) prejudice, meaning class treatment is necessary to avoid harm to class members or non-class parties; (2) injunctive or declaratory relief, meaning the defendant treated the class members alike (no damages allowed); and (3) common question or damages, meaning the common questions predominate individual questions and the class action is a superior method to handle disputes (usually used for mass torts).

Question 39

Joinder - Class Actions - CAFA

Answer 39

The Class Action Fairness Act (CAFA) grants subject matter jurisdiction from diversity of citizenship jurisdiction and allows a federal court to hear a class action if there are at least 100 members, any class member is of diverse citizenship from any defendant, and the aggregated claims exceed $5 million. Also, any one defendant may remove the case from state to federal court, though local classes will not usually stay in federal court.

Question 40

Discovery

Answer 40

Discovery is the phase of litigation in which the parties find out about what the other parties and witnesses know. Initial required disclosures are information that each party must give to other parties within 14 days of the Rule 26(f) conference. This includes contact information of persons, documents, and tangible things that the party may use to support her claims or defenses (though things not within the party’s control do not need to be disclosed). Parties claiming monetary relief must provide a computation of the amount sought. Parties must disclose any insurance that might cover all or part of the judgment in the case, even if insurance is not admissible at trial. Failing to disclose material that is required to be disclosed means the party cannot used the undisclosed material unless the failure to disclose was substantially justified or harmless.

Question 41

Discovery - Expert Witnesses

Answer 41

Each party must identify expert witnesses who may provide testimony at trial, but do not need to disclose consulting experts (absent exceptional circumstances). A party using expert witnesses must disclose the identity of the expert witness and a written report prepared by the expert witness (which includes the expert witness’s opinion, the bases and facts used for the opinions, their qualifications, and how much they are being paid). Earlier drafts and communications of the written report is considered privileged work product. After the disclosure, a party may take the expert witness’s deposition. Failure to disclose required materials means the party cannot use the expert witness unless the failure was justified or harmless.

Question 42

Discovery - Pretrial Disclosures

Answer 42

The parties must give detailed information about their trial evidence no later than 30 days before trial. This includes identity of witnesses, ESI, and other things they intend to introduce at trial.

Question 43

Discovery - Discovery Tools - When Request is Possible

Answer 43

Parties may request information from one another after initial disclosures are made and after the Rule 26(f) conference. The cost of responding to discovery is usually borne by the responding party.

Question 44

Discovery - Discovery Tools - Standard for Certifying a Request

Answer 44

Parties sign substantive answers to discovery under oath, but Rule 11 is not used here – instead, another rule provides that every discovery request and response is signed by counsel certifying it is warranted, not interposed for an improper purpose, and not unduly burdensome.

Question 45

Discovery - Discovery Tools - Depositions

Answer 45

Depositions are live testimonies in response to oral or written questions, given under oath, and recorded for a transcript to be made. Both parties and nonparties may be deposed - a party needs notice, and a nonparty needs a subpoena. A nonparty is only required to travel up to 100 miles from where they reside or are employed, unless they agree otherwise. A party cannot take more than 10 depositions or depose the same person twice without court approval or stipulation, and the depositions cannot exceed one day of 7 hours unless the court orders or stipulation.

Depositions can be used at trial to impeach the deponent, for any purpose if the deponent is an adverse party, or for any purpose if the deponent is unavailable for trial.

Question 46

Discovery - Discovery Tools - Interrogatories

Answer 46

Interrogatories are written questions to be answered in writing under oath. They are only sent to parties, never to nonparties. A party cannot take more than 25 interrogatories without court approval or stipulation. Interrogatories must be answered within 30 days from their service, and the party must answer the interrogatories based on reasonably available information. If the information can be found in business records and the burden of finding the answer would be the same for either party, then the responding party can allow the requesting party to have access to the records. Interrogatories can also inquire about legal contentions.

Question 47

Discovery - Discovery Tools - Request to Produce

Answer 47

Request to produce asks a party to make available for review and copying documents or things, or to permit entry on designated property to inspect, measure, etc. The disclosing party must respond to the request within 30 days of service.

Question 48

Discovery - Discovery Tools - Medical Exams

Answer 48

Medical exams (physical or mental) can be compelled by court order if the requesting party shows (1) the person’s health is in actual controversy and (2) good cause. The requesting party can choose the licensed medical professional to perform the exam, and they will get a report. The examined party can get a copy of the report, but must also produce all medical reports by their own doctor about the same medical condition.

Question 49

Discovery - Discovery Tools - Request for Admission

Answer 49

Request for admission is a written request that someone admit certain matters and the responding party must respond in writing within 30 days of service (specifically denying, objecting, or not knowing answer). If the party fails to deny a proper request, then the matter will be admitted.

Question 50

Discovery - Scope of Discovery

Answer 50

A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case. Information does not need to be admissible to be discoverable. However, privileged information may not be discoverable.

Question 51

Discovery - Scope of Discovery - Work Product Privilege

Answer 51

Work product privilege protects material prepared in anticipation of litigation.

Qualified work product allows material to be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way.

Absolute work product can not be discovered at all. A party’s own statement is discoverable and not protected by work product privilege.

The party must expressly claim the privilege and describe the materials in detail (in a privilege log viewed by the judge). Accidental disclosure of privileged material can be returned if prompt notice is given.

Question 52

Discovery - Protective Order against Discovery Request

Answer 52

A responding party can move for a protective order if they find the discovery request is annoying, embarressing, or an undue burden or expense. They must certify that they tried in good faith to resolve the issue without court involvement (meet and confer with other party). The court can either deny discovery, limit discovery, or permit discovery on specified terms.

Question 53

Discovery - Sanctions

Answer 53

A sanction-seeking party must certify that they tried in good faith to resolve the issue without court involvement (meet and confer with other party). When there is less than a full response, then the requesting party can move for an order compelling production of the unproduced materials. If the producing party violates the order, then the court can enter merit sanctions and contempt sanctions. When there is no response at all, then the court can enter merit sanctions plus costs.

When litigation is reasonably anticipated, parties must preserve discoverable information. However, if ESI is truly lost due to failure to take reasonable steps to preserve it, then the court may order measures to cure the harm caused to the other party.

Question 54

Discovery - Sanctions - Merit

Answer 54

Merit sanctions include establishment orders that establishes facts as true, striking of pleadings of the disobedient party, disallowing evidence from the disobedient party, dismissing the plaintiff’s case if bad faith is shown, and entering default judgment against the defendant if bad faith is shown.

Question 55

Pretrial Adjudication - Temporary Restraining Order

Answer 55

A TRO is issued to preseve the status quo until a preliminary injunctive hearing can be held. A TRO can be ex parte (i.e., no notice to other party), and can be issued only if (1) the applicant files a paper under oath clearly showing immediate and irreparable harm if the TRO is not issued and if they have to wait for the hearing; and (2) the applicant’s lawyer certifies in writing their effort to give oral or written notice to the defendant or the defendant’s lawyer. Applicants must post bond to cover costs in case the restraint is wrongful, TROs must be specific, and TROs must be served on the defendant as soon as possible. TROs may not be immediately appealed. They also are effective for 14 days, can be extended for another 14 days, but cannot exceed 28 days.

Question 56

Pretrial Adjudication - Preliminary Injunctive Relief

Answer 56

A preliminary injunction maintains the status quo until the court can adjudicate the underlying claim. A preliminary injunction cannot be ex parte, and can be issued if the applicant can show (1) they will suffer irreparable harm if the injunction is not issued; (2) they are likely to win on the merits; (3) the balance of hardship favors them; and (4) the injunction is in the public interest. Applicants must post bond to cover costs in case the restraint is wrongful, injunction must be specific, and the court must make specific findings of fact and separate conclusions of law. Injunctions may be appealed as of right.

Question 57

Pretrial Adjudication - Voluntary Dismissal

Answer 57

Plaintiffs can withdraw a case without a court order before the defendant serves an answer or motion for summary judgment, or they can withdraw a case after the defent response with court permission. The first voluntary dismissal is without prejudice and the plaintiff can refile the case. However, the second voluntary dismissal is with prejudice and this operates as adjudication on the merits (no more refiling).

Question 58

Pretrial Adjudication - Default

Answer 58

A default and default judgment occur when the defendant does not respond to the complaint in time. A default is a notation by the court clerk – the plaintiff must move for entry of default by showing the defendant failed to respond in time. For default, the plaintiff will need to seek default judgment for relief.

A defendant can move to set aside a default or default judgment by showing good cause and a viable defense.

Question 59

Pretrial Adjudication - Default Judgment

Answer 59

A default judgment by a clerk of the court is when (1) the defendant made no response at all, (2) the claim is for a sum certain in money, (3) the plaintiff gives an affidavit of the sum owed, and (4) the defendant is not a minor or incompetent.

If any of these are not true, then the plaintiff must apply for default judgment by the judge – the judge will hold a hearing and has discretion to enter the judgment.

A defendant can move to set aside a default or default judgment by showing good cause and a viable defense.

BASICALLY A DEFAULT JUDGMENT BY CLERK ONLY APPLIES TO SUM CERTAIN CLAIMS.

Question 60

Pretrial Adjudication - Motion to Dismiss for Failure to State a Claim

Answer 60

The plaintiff’s failure to state a claim can cause the case to be dismissed. This requires the court to just look at the plaintiff’s complaint and see if there is a plausible claim. The court can allow amendment. The same motion made after the defendant has answered is called motion for judgment on the pleadings.

Question 61

Pretrial Adjudication - Motion for Summary Judgment

Answer 61

The party moving for summary judgment must show there is no genuine dispute on a material fact and they are entitled to judgment as a matter of law. Any party can move for summary judgment no later than 30 days after close of discovery. Parties can proffer the evidence (affidavits, declarations, deposition testimony, interrogatory, etc.), and the evidence will be viewed in the light most favorable to the non-moving party.

If the moving party produces evidence, then the nonmoving party must produce their own evidence in response to the issue raised.

The motion can be partial or full.

Question 62

Trial - Judicial Management

Answer 62

The parties must meet and confer in a Rule 26(f) conference at least 21 days before the court’s scheduling order, and they must present a detailed discovery plan to the court no later than 14 days afterwards. The court will then enter an order setting cut-offs for joinder, amendment, motions, completion of discovery, etc., and create a roadmap for how the litigation will proceed. The court may hold pretrial conferences to oversee the case and the final pretrial conference determines the issues to be tried and evidence to be proffered at trial (this is meant to avoid suprises at trial).

Question 63

Trial - Jury Trial

Answer 63

A jury determines the facts and returns the verdict. A party must demand the jury in writing no later than 14 days after service of the last pleading addressing a jury triable issue. Failure to do so waives the right to a jury.

Question 64

Trial - Jury Trial - Voir Dire and Challenges

Answer 64

The jury selection process (voir dire) allows the parties to strike potential jurors for cause (unlimited strikes) or without cause (peremptory challenges, limited to 3, must be race/gender neutral).

A jury is comprised of 6 to 12 jurors (but can be less if good cause and parties stipulate), and the jury verdict must be unanimous.

Jurors can be impeached based on external matters, but a verdict will not be set aside if the misconduct is harmless.

Question 65

Trial - Jury Trial - Jury Instructions

Answer 65

The 7A preserves the right to jury in federal civil cases. Juries can only determine issues of law, not issues of equity. However, the judge can still instruct the jury on the law via instructions. Parties can submit proposed instructions at the close of all evidence and the judge can hold “off the record” conferences to discuss proposed instructions. Before instructions are given, the judge will inform the parties “on the record” of the final instructions. Parties must object to the instructions before they are given to the jury or else the objection is waived.

Question 66

Trial - Jury Trial - Verdicts

Answer 66

The judge determines whether the jury will give a general verdict, special verdict, or general verdict with written questions.

A general verdict will be entered by the clerk of court.

A special verdict with consistent answers will be approved by the judge and entered by the clerk of the court.

A general verdict with consistent answers but inconsistent with the verdict will be fixed by the judge so an appropriate judgment consistent with the answers is entered. If the answers are inconsistent with each other and the verdict, then no judgment may be entered.

Question 67

Trial - Bench Trial

Answer 67

A judge can determine the facts at trial. The judge must record their findings of fact orally on the record or in writing, with their conclusions of law. A judgment must also be entered.

Question 68

Trial - Motions - Judgment as a Matter of Law

Answer 68

A motion for judgment as a matter of law (JMOL, directed verdict) applies during jury trials. It is basically a request that the case not go to the jury and that the judge grant the motion and enter judgment based on evidence presented at trial. A judge will grant JMOL if (like summary judgment) there is no genuine dispute as to material facts when the evidence is viewed in the light most favorable to the non-moving party. A party can move for JMOL after the other side has been heard at trial on the issue.

Question 69

Trial - Motions - Renewed Judgment as a Matter of Law

Answer 69

A renewed motion for judgment as a matter of law (RJMOL) is the same as JMOL but comes up after trial. A party can move for RJMOL within 28 days after entry of judgment if they moved for JMOL at the proper time at trial.

Question 70

Trial - Motions - New Trial

Answer 70

A motion for a new trial requests a new trial due to a non-harmless error, like an erroneous jury instruction, new evidence that could not have been discovered with due diligence, misconduct by a juror/attorney/party, judgment against the weight of the evidence, and inadequate or excessive damages. A party can move for a new trial within 28 days of the judgment.

If the new trial is because of inadequate or excessive damages, a court might suggest remittur or additur. Remittiur gives the plaintiff a choice between remiting a part of the damages award or going through a new trial. Additur gives the defendant a choice between adding to the damage award or going through a new trial (this is only allowed in state court).

Question 71

Trial - Motions - Offer of Judgment

Answer 71

An offer of judgment is when a defendant submits a formal offer to settle the case. This can be made up to 14 days before trial.

Question 72

Trial - Motions - Relief from Order or Judgment

Answer 72

A motion for relief from order or judgment can be made under certain circumstances. If there is a clerical error, then the motion can be made at any time. If the judgment is void, then the motion can be made within a reasonable time. If there is a mistake, excusable neglect, fraud, misrepresentation, misconduct, or newly discovered evidence that could not have been disovered with due diligence, then the motion can be made within a reasonable time (but not more than one year).

Question 73

Appellate Review

Answer 73

The losing party has a right to appeal to the court of appeals if the district court’s order is a final judgment that determines the merits of the entire case (i.e., the trial court must not have anything left to do on the merits of the case). The notice of appeal must be filed with the district court within 30 days after the entry of the judgment that is being appealed.

Question 74

Appellate Review - Not Final

Answer 74

If the district court’s order is not a final judgment, then it might still be appealed.

Preliminary or permanent injunctions are reviewable as of right, even if the order is not final (except for TROs).

Interlocutory Appeals Act allows appeal of a nonfinal order if the district judge certifies that involves a controlling issue of law, as to which there is substantial ground for difference of opinion, and the court of appeals agrees to hear it.

Collateral order doctrine gives the appellate court discretion to hear an appeal on an issue if that issue is distinct from the merits of the case, involves an important legal question, and is essentially unreviewable if the parties await a final judgment.

Question 75

Appellate Review - Standards of Review

Answer 75

When the district judge decides questions of law, then the court of appeals uses a de novo standard (no deference given to district judge).

When the district judge decides questions of fact in a non-jury trial, then the court of appeals uses a clearly erroneous standard. When the jury decides questions of fact, then the court of appeals will affirm unless reasonable people could not have made that finding.

The court of appeals will usually affirm discretionary matters unless the district judge abused their discretion.

No reversal is required if the error is harmless.

LAW - DE NOVO; FACT - CLEARLY ERRONEOUS; DISCRETION - OKAY UNLESS ABUSE

Question 76

Preclusion - Claim Preclusion (Res Judicata)

Answer 76

Prior judgment on the merits can preclude a current case. Typically, the court in the current case will apply the preclusion law of the judicial system that decided the prior case.

Under claim preclusion (res judicata), a claimant can only sue once to vindicate a claim and the claim will be precluded if (1) the same claimant is suing the defendant; (2) the prior case ended in a valid final judgment on the merits; and (3) the prior case and the current case are the same claim.

Question 77

Preclusion - Issue Preclusion (Collateral Estoppel)

Answer 77

Prior judgment on the merits can preclude a current case. Typically, the court in the current case will apply the preclusion law of the judicial system that decided the prior case.

Under issue preclusion (collateral estoppel), a party can only argue over an issue once and the issue will be precluded if (1) the prior case ended in a valid final judgment on the merits; (2) the same issue was actually litigated and determined in the prior case; and (3) the issue was essential to the judgment in the prior case.

Issue preclusion can be used against somebody who was a party to the prior case (or in privity with a party).

When someone who was not a party to the prior case tries to use issue preclusion in the current case, then the use of issue preclusion must be fair (the bounded party had a full and fair opportunity to litigate in the prior case; the bounded party had strong incentives to litigate the prior case; the party asserting issue preclusion could have easily joined the prior case; and no inconsistent findings on the issue).

Question 78

Joinder - Class Actions

Answer 78

Class actions allow representatives to sue on behalf of a group. This requires (1) too many class members for practicable joinder; (2) some issue in common to all class members; (3) the representatives’ claims to be typical to the class’s claims; and (4) the representative to fairly and adequately represent the class.

The action must also fall under one of three types of class actions: (1) prejudice, meaning class treatment is necessary to avoid harm to class members or non-class parties; (2) injunctive or declaratory relief, meaning the defendant treated the class members alike (no damages allowed); and (3) common question or damages, meaning the common questions predominate individual questions and the class action is a superior method to handle disputes (usually used for mass torts).

A case is not a class action unless the court grants the motion to certify it as a class action. The court must also define the class and the class claims/issues/defenses, and appoint class counsel to fairly and adequately represent the interests of the class.