Civil Procedure

Question 1

What standard of review does an appellate court use for pure issues of law?

Answer 1

If the issue is a pure question of law, the appeals court typically reviews the issue de novo

Question 2

What does the de novo standard of review mean?

Answer 2

no deference will be given to the trial court’s ruling, and the appellate court will decide the issue from scratch

Question 3

What standard do appellate courts use when reviewing the fact finding of a judge in a bench trial?

Answer 3

Clearly erroneous standard

Question 4

What does a clearly erroneous standard mean?

Answer 4

Federal courts must not set aside findings of fact made from the bench unless those findings were clearly erroneous.

Question 5

What standard do appellate courts use when reviewing discretionary rulings by the trial court? (like evidence or discovery?)

Answer 5

Abuse of Discretion - highly deferential to judge’s fact finding ability

Question 6

If facts are tried without a jury or without an advisory jury, what is necessary?

Answer 6

• The court must find its facts specially and state its conclusions of law separately.
• The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.
• Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give
  due regard to the trial court’s opportunity to judge the witnesses’ credibility.

Question 7

What is a final judgment/order?

Answer 7

A final order is one that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties but as to all causes of action involved.

Question 8

What is the collateral order doctrine?

Answer 8

It 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.

There are three requirements.

Question 9

What are the requirements of the collateral order doctrine?

Answer 9

(i) the lower court must have conclusively determined the disputed question;
(ii) the issue must be separate from and collateral to the merits of the main issue of the case; AND
(iii) the issue must be effectively unreviewable on an appeal from the final judgment.

Question 10

What are examples of things that do not count as final orders?

Answer 10

• certain involuntary dismissals (lack of jx, improper venue, failure to join indispendable party)

An appellate court would not have jx over these.

Question 11

If there is a final judgment on one claim, but others in the suit remain, does FRCP allow for an appeal?

Answer 11

The court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay

If the court does not expressly determine that there is no just reason for delay, there can be no appeal.

Question 12

What are writs of mandamus? When are they available?

Answer 12

A way around the final judgment rule. They compel a trial judge to act. They are available only if an appeal will be insufficient to correct a problem and the trial court’s actions constitute a serious abuse of power that must be immediately corrected.

Question 13

What is the standard for a writ of mandamus?

Answer 13

Involves reviewing the record to determine that:
1. an appeal would be insufficient
2. the trial court’s actions constitute a serious abuse of power

Question 14

In a proceeding with a federal and state claim in federal court, if court grants a motion to dismiss over the federal claim, is a regular appeal proper?

Answer 14

No, because the state law claim is yet to be decided and there is not yet a final judgment on the merits of the action because the two claims overlap.

A party can ask the court to certify a final judgment as to a resolved claim when it is separate and distinct from the unresolved claims and then appeal that decision. The court would reject such a request if the federal and state claims overlap.

Question 15

Will an appellate court ever reverse a ruling if it finds harmless error?

Answer 15

No

Question 16

What is a harmless error?

Answer 16

One that does not affect the substantial rights of the parties?

Question 17

When will a federal appeals court overturn a jury verdict?

Answer 17

Because of what it percieves as a fact-finding error only if there is a complete abscence of proof on some material issue.

Question 18

If a party argues that the testimony/evdidence should have been excluded as irrelevant and highly prejudicial, what is the standard of review on appeal?

Answer 18

Abuse of discretion (discretionary issue)

Question 19

What is the test for clearly erroneous?

Answer 19

An appellate court will conclude that a finding was “clearly erroneous” if it has a definite and firm conviction that a mistake has been committed.

Question 20

What is the FRCP rule for an agent recieving service?

Answer 20

An individual defendant may be served by delivering a copy of the summons and the complaint to an agent authorized by appt or law to recieve service of process on behalf of the defendant.

Question 21

Can service be properly served on a third party at a defendant’s workplace? Under FRCP?

Answer 21

NO, unless that person is the defendant’s agent.

Question 22

When is an action removable?

Answer 22

If it could have originally been filed in federal court?

Question 23

What is the forum defendant rule?

Answer 23

A suit that is removable solely on the basis of diversity may NOT be removed if any of the parties in interest, properly served and joined, is a citizen of the state in which the action is brought.

So, if you are ONLY in federal court because of diversity JX, and any of the defendants are from the state in which the suit is brought, it cannot be removed to federal court there.

**DOES not apply if there is federal question jx

Question 24

When is notice of removal timely?

Answer 24

Notice of removal is valid within 30 days of service of the complaint on the defendant.

Question 25

How does having multiple defendants affect notice of removal?

Answer 25

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

Question 26

How is diversity determined for class action suits?

Answer 26

Diversity of citizenship is based on whether the named parties are diverse from one another, so the citizenship of the unamed class members is not considered.

Question 27

If a court has SMJ and PJ, but the venue is improper, can the case possibly be dismissed?

Answer 27

Yes

Question 28

Where is venue proper?

Answer 28

In any federal district court where:
1. any defendant resides, as long as all the defendants reside in the same state; OR
2. where a substantial portion of the events giving rise to the claim occured OR IF FIRST 2 NOT AVAILABLE
3. any district where the D is subject to court’s PJ

Question 29

What can a court do if case is filed in improper venue, but there is PJ and SMJ?

Answer 29

Court can either transfer the claim to a proper venue where the state would have been filed or dismiss the claim

Question 30

If a suit has a federal and state claim (through supplemental jx), and the federal claim is dismissed, does the court need to hear the state claim or can it remand it?

Answer 30

The court can exercise its discretion to decline to hear the remaining claim without an independent basis for jx (note that it has DISCRETION)

Question 31

If something is a civil action in state court arising under the worker’s compensation law of that state, can it be removed to federal court?

Answer 31

NO - this is an exception to the general rule that diversity cases can be removed to federal court

Question 32

What are the non-removable actions under federal court?

Answer 32

1. certain clams 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 33

What type of claim arises under Title VII of th Civil Rights Act?

Answer 33

Federal Question - can be brought or removed to federal court

Question 34

In diversity jx over the claim of one plaintiff, how can the court exercise jx over the claim of another plaintiff?

Answer 34

Supplemental jx over the other plaintiffs claim IF:
1. it is so related to the first plaintiff’s claim that it forms part of the same case or controversy (common nuceus of operative fact) AND
2. if the additional plaintiff is not a citizen of the state of any of the defendants (AKA does not destroy diversity)

Question 35

What is the doctrine of forum non conveniens?

Answer 35

Allows a federal court with proper jx to decline to hear a civil case out of fairness to the parties if there is a more convenient federal court available (discretionary)

Question 36

WHo carries the burden with forum non conveniens?

Answer 36

The party asserting why another venue would be more proper has to show why another venue would be more proper

Question 37

Can a party assert a claim in federal court based solely a federal defense?

Answer 37

NO - does not establish FQJ

Question 38

Where can a district court transfer a civil action?

Answer 38

Where the action originally could have been brought or where all parties consent

**note: can only transfer if OG venue is proper

Question 39

What is a forum selection clause?

Answer 39

This is where parties to a contract designate the forum in which any litigation must occur (can ask the court to enforce it)

Question 40

Is a forum selection clause in a contract enforceable?

Answer 40

Possibly:
1. When forum is proper, but not what was designated under the clause, defendants generally cannot demand a dismissal or transfer to that forum
2. BUT, they can make a motion to give the trial judge discretion to transfer a case for convenience

Question 41

If a state uses a federal statute as a basis for passing a law, does a violation of that state law create a federal question?

Answer 41

NO

Question 42

Where is a venue proper for removal?

Answer 42

In the federal district where the original state court action is pending

Question 43

What happens if a defendant refuses waiver of service?

Answer 43

If it does not show good cause for the refusal, the court must impose on the defendant expenses later occured in making service and costs of any motion to collect those service expenses

Question 44

Under Erie (courts sitting in diversity jx) what law do federal courts apply on procedural issues?

Answer 44

Federal Law

Question 45

Is putting something in the stream of commerce enough to be subject to PJ? (like putting tires into a market?)

Answer 45

No, not enough for general personal jx

Question 46

What does a court consider in deciding whether to dismiss an action for forum non conveniens?

Answer 46

A court must weight the private and public interests in keeping the action or dismissing it

Question 47

Is forum non coveniens waived if omitted from an earlier pre-trial motion?

Answer 47

No! It’s different than dimissing for improper venue. This assumes venue is proper.

Question 48

Who has jx over copyright claims?

Answer 48

Federal court

Question 49

Can a party be served with service while on vacation?

Answer 49

Generally, if the D travels to the forum state and is served while physically present there, the state has proper PJ over that D, even if the D has no other contacts with the state.

Exception: when someone is being sued in professional capacity (like a trustee) on a personal vacation, they MAY be able to argue that there is no PJ over them

Question 50

Can defense of lack of PJ be asserted in amended answer?

Answer 50

Yes, can be raised in an answer that is amended as a matter of course (within the 21 days after serving original)

Question 51

Will federal courts exercise jx over domestic relations or probate proceedings?

Answer 51

No!

Question 52

When must a defendant file a notice of removal in federal court?

Answer 52

Within 30 days after service

Question 53

What is the removal rule for diversity cases?

Answer 53

A defendant in a diversity case has one year after the action’s commencement to remove to federal court.

In diversity cases, defendants may not remove more than one year after the state action commenced UNLESS the plaintiff somehow acted in bad
faith to prevent the defendant from removing the case

Question 54

Can a court transfer the lawsuit if original venue is improper?

Answer 54

NO (even IF the parties consent)

Question 55

What court has jx over trademark infringement?

Answer 55

Federal courts

Question 56

Who can remove?

Answer 56

Only the defendant

Question 57

If a D does not respond to a waiver of service, what must the plaintiff do?

Answer 57

Must formally serve a D to effect proper service of process

Question 58

Can a court exercise pj over someone based on unrelated property that they own in the state without any other contacts?

Answer 58

Nope

Question 59

Can a senator write legislation that gives federal courts jx to hear state claims based on state x type of law?

Answer 59

No, because federal courts can hear only federal question jx or diversity jx, and a claim arising under this law would have neither.

Question 60

Is contracting for services in a state enough for pj even if only for one day?

Answer 60

Yes, constitutes purposeful availment of the forum and would be foreseeable to be subject to litigation there.

Question 61

What must a federal court do when a case is brought with improper venue not in a district where it could have been file originally?

Answer 61

The district shall either dismiss the case or transfer the case to any district in which it could have been brought (if the transfer is in the interest of justice)

Question 62

What happens if a court cannot exercise PJ over a defendant based on the long-arm statute?

Answer 62

The analysis ends - you don’t even get to the Constitutional step

Question 63

What does the constitutional analysis for due process require?

Answer 63

1. that the defendant have sufficient minimum contacts with the forum so that it is foreseeable that he may be called into court there AND
2. that he have adequate notice of the action and an opportunity to be heard

Question 64

What may be some convenience factors for why a court would grant a transfer?

Answer 64

1. where the accident occured
2. where the defendant has citizenship
3. where the witnesses are
4. where there are other pending actions related to the matter

Question 65

When the federal court’s SMJ is based on diversity, can the plaintiff add a defendant if it would destroy diversity?

Answer 65

NO

Question 66

What is an embedded federal issue?

Answer 66

1. a federal law issue that will be central to determining whether a defense asserted or expected to be asserted by the defendant is valid OR
2. a federal law issue whose resolution will help determine the valdity of the plaintiff’s state law claim, even though the direct source of the state law claim is state law

IE (patent question embedded in a malpractice question)

Question 67

Can an embedded federal issue be the basis for federal question jx:

Answer 67

Possibly:
1. No, if federal issue is just a small hypothetical within a state claim
2. Yes-if the claim is a substantial, disputed question of federal law that would be outcome determinative

Question 68

When must service of process be made?

Answer 68

within 90 days after the
complaint is filed with the court

Question 69

What happens if service is not timely made?

Answer 69

• Because the buyer’s attorney did not effect timely service, the only way to survive the seller’s motion to dismiss is for the buyer to demonstrate good cause for failing to do so.
• Good cause” is typically something beyond the party’s control.
• Forgetting to effect service does not constitute good cause.

Question 70

Is the statute of limitations a matter of state or federal law?

Answer 70

State law governs how and when a statute of limitations runs

Question 71

Does the dismissal of a federal claim divest the federal court of supplemental jx over the state law claim?

Answer 71

No, if the P presents a colorable claim under federal law, it will be sufficient to support supplemental jx over state law claims that form part of the same case or controversy. The court may, in its discretion, rely on the dismissal to discontinue hearing the state law claim, but it is not required to do so.

Question 72

Can a default be entered for ignoring an action if the court has no PJ over D?

Answer 72

No, D can get relief from the judgment

Question 73

Transfer is only permitted from ______ to ______.

Answer 73

Transfer is only permitted from one proper venue to another.

Question 74

Does the forum defendant rule apply when jx is based on federal question?

Answer 74

No, just diversity

Question 75

Test for when a federal court declines to exercise supplemental jx

Answer 75

1. a supplemental claim raises a novel or complex issue of state law
2. the claim substantially predominates over the claim which the district court had original jx OR
3. any other exceptional or compelling reason for denying jx exists

Question 76

When must a party object to jury instructions?

Answer 76

• Parties who wish to appeal an improper jury instruction are required to have preserved the claim pursuant to FRCP 51(c).
• This involves objecting as
  soon as the court provides for the opportunity to object, stating on the record the matter being objected to, and the
  grounds for the objection.
• If no earlier opportunity to object was given, the objection may be made prior to jury deliberation beginning.

Question 77

Who determines whether something can proceed as a class action? The judge or jury?

Answer 77

The judge

Question 78

What is the common law 7th amendment rule for a jury trial?

Answer 78

The Seventh Amendment provides that in suits at common law, the right to a trial by jury shall be guaranteed if the
damages amount exceeds $20.

In practice, the Seventh Amendment’s application to “suits at common law” means that if the suit would have
been considered at common law, there will be a right to a jury trial.

Federal Rule of Civil Procedure (FRCP) 38(a) provides that the right to a trial by jury as declared in the Seventh
Amendment is preserved by the party who demands it. However, a party who wishes for a jury trial on a particular
issue must file a demand within 14 days after the service of the last pleading directed to that issue.

Question 79

Can you be entitled to a jury trial for solely injunctive relief?

Answer 79

No

Question 80

Can parties ever be bound by a judgment with less than six jurors?

Answer 80

In exceptional circumstances, when the jury has suffered depletions past its alternates, the parties may
agree to be bound by a verdict rendered by fewer than six jurors.

Question 81

What is plain error?

Answer 81

an error found by an appellate court that affects the substantial rights of the parties

Question 82

If an instruction is about peripheral step in procedure and did not affect susbtantial rights, will it be plain error?

Answer 82

No, and the appellate court will probably not change the verdict because of it

Question 83

How is a jury trial demanded?

Answer 83

• A party who wishes for a jury trial on a particular
  issue must file a written demand with the court and serve it on all parties.
• The demand may be included with a
  pleading.
• Failure to properly file and serve the demand within 14 days after the service of the last pleading directed to
  that issue constitutes a waiver by that party of any right to trial by jury.

Question 84

Are you entitled to a jury trial for a purely equitable remedy?

Answer 84

No

Question 85

What should a court do as far as a jury if legal an equitable claims arise out of the same common facts joined?

Answer 85

Under the Seventh Amendment, if legal and equitable claims arising out of the same common facts are
joined, the legal claim should be tried first by the jury and then the equitable claim to the court.

Thus, the court shouldfirst hold a jury trial of the team’s counterclaim and then a nonjury trial of the city’s claim.

Question 86

What does the 7th amendment provide?

Answer 86

in suits at common law, the right to a trial by jury shall be guaranteed

this provision only applies to federal trials and has never been applicable to state trials

Question 87

The Seventh Amendment’s right to a jury trial requires that claims be:

Answer 87

(i) legal in nature; AND
(ii) asserted against the type of defendant that was suable at common law in 1791.

Question 88

Merger of Law and Equity under CL-7th amendment

Answer 88

The 7th Amendment thus does not guarantee trial by jury in other types of cases, including maritime law, lawsuits against the government itself, or for many parts of patent claims.

Question 89

Do you have a right to a jury trial for Ds who were not sueable at common law?

Answer 89

No, no right to demand a jury trial if claim is against a type of defendant who was not sueable at common law

Question 90

What type of jx invokes Erie?

Answer 90

diversity jx

Question 91

What is the federal standard for assessing jury damages?

Answer 91

If the federal judge believes the jury’s damages award is too high (excessive), such that it shocks the conscience

Question 92

Erie Analysis

Answer 92

• Erie requires an initial determination of whether there a controlling federal law.
• If there is a controlling federal law, then there is no Erie problem.
• In absence of that, the question becomes whether the issue at hand is substantive or procedural.
• If not, the state substantive law in which the court sits applied.

Question 93

What substantive law must a federal court sitting in diversity apply?

Answer 93

the state substantive law in which it sits on all substantive issues in the case

This includes the state’s conflict of law rules.

Question 94

What is notice pleading?

Answer 94

A federal procedural rule - notice pleading refers to a system of pleading requirements that emphasizes pleadings only as a way to notify parties of general issues in a case

This allows plaintiffs to state their claims in general terms
without alleging detailed facts to support each claim.

Twombly and Iqubal expand on this: However, a complaint must contain sufficient factual allegations
to allow a district court to find that the claim is plausible, not merely possible.

Question 95

What pleading requirements must federal courts follow in diversity cases

Answer 95

Federal pleading requirements apply to federal courts even
when they hear diversity cases.

Question 96

What type of law are statutes of limitations and rules for tolling statutes for Erie?

Answer 96

substantive, so a federal judge in diversity case must follow state law on these

Question 97

If a question is in federal court based on federal question jx……

Answer 97

ALWAYS APPLY FEDERAL LAW

Question 98

What must someone do who carries the burden of an affirmative defense?

Answer 98

must provide evidence that, if uncontroverted, would compel a jury verdict in his favor.

Question 99

When can a motion for a new trial be filed?

Answer 99

Under FRCP 59, a motion for a new trial must be filed no later than 28 days after the judgment is entered.

Question 100

What can a court do based on newly discovered evidence?

Answer 100

Under Federal Rule of Civil Procedure (FRCP) 60(b)(2), the court may relieve a party from a final judgment or order
based on newly discovered evidence that by due diligence could not have been discovered in time to move for a new
trial.

This motion must be made within a reasonable time not to exceed one year.

Question 101

How does someone win a motion for summary judgment?

Answer 101

The party must show that there is no genuine dispute of as to any material fact in the lawsuit, and that he is entitled to judgment as a matter of law.

Question 102

Who has the burden of summary judgment?

Answer 102

THe party seeking summary judgment has the burden of producing informaton that clearly establishes there is no factual dispute for a jury to resolve.

Question 103

How does the movant show a lack of a genuine issue of material fact for sumary judgment?

Answer 103

The movant can submit affidavits as proof. They must:
* contain matters as to which the affiant has personal knowledge
* state only matters which would be admissible at trial AND
* show the affiant is competent to testify at trial

Question 104

What is a judgment as a matter of law (JMOL)?

Answer 104

Before a case reaches the jury, either party may move for judgment as a matter of law (also called directed verdict) which has the effect of taking the case away from the jury and determining the outcome as a matter of law

Question 105

What is the standard for a JMOL?

Answer 105

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have legally sufficient evidentiary basis to find for the other party on that issue, the court may resolve the issue against the party and grant a motion for judgment as a matter of law against the party, on a claim or defense that under the controlling law can be maintained or defeated only with a
favorable finding on that issue.

Question 106

What is the standard for a motion for summary judgment?

Answer 106

FRCP 56 allows either party to file a motion for summary judgment if, from the pleadings, affidavits, and discovery
materials, it appears that there is no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law.

Question 107

Standard and timing of a motion for summary judgment

Answer 107

The party seeking summary judgment has the burden of producing information that clearly establishes there is no
factual dispute for a jury to resolve. Unless a local rule or court order dictates otherwise, a party may file a motion for
summary judgment at any time until 30 days after the close of discovery.

Question 108

When can a party make a motion for judgment as a matter of law?

Answer 108

When the other party has been fully heard on the issue

defendant: at close of plaintiff’s case
defendant or plaintiff: after both sides

Question 109

Can the deadline to file a renewned JMOL be extended?

Answer 109

No, can only be filed within 28 days after the judgment has been entered.

Question 110

What is required for proper process?

Answer 110

Summons AND complaint

Question 111

Why is a motion for a new trial granted?

Answer 111

granted because of an error during trial, because the verdict is against the weight of the evidence, because of juror misconduct, or because the verdict is inadequate.

When there has been a jury trial,
the judge may order a new trial for any reason for which a new trial has been granted in an action at law in federal
court. When the action was tried without a jury, a new trial may be granted for any of the reasons an equity court would have granted a rehearing.

Question 112

Why would a court deny a motion for judgment as a matter of law, but grant a new trial?

Answer 112

There might be sufficient evidence for a judge to deny a motion for judgment as a matter of law on the ground that a reasonable jury could find for the other party, yet a judge could grant a motion for a new trial if she thought the jury’s verdict was deeply flawed.

Question 113

What happens when there is actually a genuine issue of material fact?

Answer 113

Has to go to the jury - no summary judgment as to that issue

Question 114

When and how must a party object to jury instructions?

Answer 114

• In order to raise an issue regarding the inadequacy of instructions on appeal, a party who wishes to make an objection must do so before the jury retires.
• Under FRCP 51(c), a party who objects to an instruction or the failure to give an instruction must state the objection on the record, stating distinctly the matter objected to and grounds for the
  objection.

Question 115

What happens with a judge find sthe jury’s verdict excessive or inadequate but wishes to avoid ordering a new trial? This commonly
occurs where the judge is confident that the jury decided the issue of liability properly but has miscalculated damages.

Answer 115

Remittur

Question 116

What is a remittur?

Answer 116

A judge in such a case may conditionally order a new trial. The new trial will take place unless the plaintiff agrees to a
reduction of the damages to a specified amount. This is called remittitur.

Question 117

What is additur?

Answer 117

Additur is when the judge finds the damages
inadequate and orders a conditional new trial unless the defendant consents to increase the damages.

not allowed in federal court

Question 118

What defenses can D waive in a pre-answer motion?

Answer 118

• lack of subject-matter jurisdiction;
• lack of personal jurisdiction;
• improper venue;
• insufficient process;
• insufficient service of process;
• failure to state a claim upon which relief can be granted; and
• failure to join a necessary party under FRCP 19.

Question 119

Is personal jx defense waived if not raised in a pre-answer motion?

Answer 119

Yes, and you have consented to PJ

Question 120

Is a statute of limitations defense waived if not raised in a pre-answer motion?

Answer 120

No

Question 121

When can a renewed JMOL be granted?

Answer 121

1. if the judgment was based upon a verdict that reasonable persons could not have reached, AND
2. the moving party has sought a judgment as a matter of law at the close of evidence.

Question 122

Can you submit a renewed JMOL and a motion for a new trial together?

Answer 122

Yes

Question 123

What matters must be pleaded with particularity?

Answer 123

These special matters, listed in FRCP 9, include the circumstances giving rise to any allegation of fraud or mistake.

Question 124

What is required for a regular pleading?

Answer 124

. Generally, a complaint is only required to include a
jurisdictional statement, the relief sought, and sufficient factual allegations for a court to find the claim is merely
plausible.

Question 125

What is required for heightened pleading?

Answer 125

However, certain matters are considered special and require more particular pleadings. Fraud is considered
a special matter that requires a heightened level of notice, including a statement of the circumstances giving rise to
the allegation of fraud.

Question 126

When can a plaintiff file notice of dismissal without having to seek permission of the court?

Answer 126

Only available until the defendant answers or moves for summary judgment

Question 127

Motion for a JMOL vs. New Trial

Answer 127

A JMOL or a renewed JMOL motion may be granted if a reasonable jury would not have a legally
sufficient basis to find for the nonmoving party. In contrast, a new trial may be granted if the verdict was against the
manifest weight of the evidence, to correct an error, or because the verdict was excessive or inadequate.

Question 128

Do you ever waive the defense of lack of subject matter jx?

Answer 128

Nope, always available

Question 129

When a case is in fed ct bc of diversity only and then the parties find out they aren’t actually diverse

Answer 129

No SMJ in federal court over the claim anymore

Question 130

What does a party seeking sanctions do under Rule 11?

Answer 130

he party seeking sanctions serves a motion on the other party but is not allowed to file the
motion with the court if the challenged paper, claim, or defense is withdrawn or appropriately corrected within 21 days after the service.

Question 131

What does Rule 11 require of filings by attorneys?

Answer 131

Rule 11 applies to every single paper at attorney files in federal civil cases. Specifically, written motions,
pleadings, and other papers are governed by Rule 11, which requires parties to certify that the information presented to the court is not being presented for an improper purpose, that the allegations and factual contentions have evidentiary support, and that the legal contentions therein are warranted by existing law. In other words, the attorney MUST abide by Rule 11.

Question 132

What should a party do when an insufficient or irrelevant defense is waived?

Answer 132

This is because FRCP 12(f) allows a party to file a motion to strike an insufficient and irrelevant defense within 21 days of service of the pleading, which includes
the answer filed by the seller here.

Question 133

What defenses must be filed in the pre-answer motion or answer, whichever comes first, or they’re waived?

Answer 133

These defenses include:
lack of personal jurisdiction
improper venue
insufficient process
and insufficient service of
process.

Question 134

What does Rule 26 require parties to disclose?

Answer 134

certain information to other parties without
waiting for a discovery request.

Rule 26 requires parties to disclose all information “then reasonably available” that is
not privileged or protected as work product.

Question 135

What types of disclosures are required under Rule 26?

Answer 135

initial disclosures, disclosures of expert testimony, and pretrial disclosures.

Question 136

Are parties excused from making their initial disclosures because another party has not made their initial disclosures?

Answer 136

NO

Question 137

What must parties disclose about expert testimony?

Answer 137

A party must also disclose to other parties the identities of expert witnesses expected to be used at trial.

If the expert witness has been specially retained to provide expert testimony, the disclosure must be accompanied by a report prepared by the expert stating her qualifications, the opinions expressed, and the basis of those opinions.Otherwise, no report is required.

However, the party will need to disclose the identity of the expert, the subject matter on which the expert is expected
to present evidence, and a summary of the facts and opinions to which the witness is expected to testify. This
disclosure must be made at least 90 days before trial.

Question 138

Can a party depose testifying experts who are expected to be called at trial?

Answer 138

Yes

Question 139

Is a party entitled to depose consulting experts?

Answer 139

Opinions of these witnesses would be considered to have
been developed in anticipation of litigation; thus, disclosures from consulting experts are only discoverable upon a showing of exceptional circumstances under which it would be impracticable for the other party to obtain facts or opinions by other means.

Question 140

When can a third party be granted intervention?

Answer 140

A third party may be granted intervention into a case by way of right or permissively.

Intervention by a third party may be granted permissively when the applicant’s claim has a common question of law or fact as the main action, and the claim does not destroy complete diversity.

Question 141

What is an indespensable party?

Answer 141

An indispensable party is one whom, if absent, the court cannot grant complete relief to the other
parties, or one who has such an interest in the subject matter of the suit that his absence will impair his ability to
protect that interest.

Question 142

What is a pre-trial order and can it be modified?

Answer 142

After a pretrial conference, the judge must enter a pretrial order under Federal Rule of Civil Procedure (FRCP) 16(c).

A pretrial order might summarize admissions of fact made by the lawyers, list the witnesses to be presented, and
narrow the issues to be litigated.

This pretrial order is binding during the rest of litigation unless the court modifies it.

A court will only modify a pretrial order to “prevent manifest injustice.”

Question 143

When can a court NOT impose monetary sanctions on a party?

Answer 143

The court may not mpose monetary sanctions on a represented party when the violation was that legal contentions in the pleadings were not warranted by existing law or supported by a nonfrivolous argument for expanding the law.

Question 144

The power of court sanctions?

Answer 144

The court has the power to impose sanctions limited to what is sufficient to deter repetition of such conduct against a party who presents a paper to the court in violation of the above requirements, either on the court’s own initiative or on motion of the opposing party.

Question 145

What are some reasons for sanctions?

Answer 145

When the lawyer files a pleading, the lawyer thereby certifies that to the best of the lawyer’s knowledge, information,
and belief, formed after an inquiry reasonable under the circumstances:

the pleading is not presented for any improper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation;

the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

the factual contentions have evidentiary support, or if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery

AND

the denials of factual contentions are warranted on the evidence, or if specifically so identified, are reasonably
based on belief or a lack of information.

Question 146

When can a party amend its pleading as a matter of course?

Answer 146

Pursuant to the Federal Rules of Civil Procedure (FRCP), a party may amend its pleading once as a
matter of course within 21 days after serving it.

Question 147

What is attachment?

Answer 147

“Attachment” is a process by which someone’s property is seized in accordance with a writ or judicial
order for the purpose of securing a judgment yet to be entered.

Federal courts are authorized to issue provisional
remedies, including attachment, at any time following the commencement of the action for the purpose of securing
satisfaction of a potential judgment.

Therefore, moving for attachment is the animator’s best plan if he believes that
the cartoonist may be insolvent at the time of judgment.

Question 148

What type of defense is contributory negligence?

Answer 148

An affirmative defense

Question 149

What must the defendant state in their answer?

Answer 149

Affirmative defenses

Question 150

What are counterclaims?

Answer 150

Counterclaims are claims the defendant may have against the plaintiff. If the counterclaim arises out of the
same transaction or occurrence as the plaintiff’s claim, it is a compulsory counterclaim and must be pleaded in the
answer or the defendant will be barred from bringing it at a later time.

Question 151

What does Rule 20 permissive joinder allow?

Answer 151

FRCP 20 allows
plaintiffs to join together in an action if:
(i) their claims arise from a single transaction, occurrence, or series of transactions or occurrences; AND
(ii) there is a question of law or fact common to all plaintiffs which will arise in the
action.

Question 152

Test for determining whether someone is required and falls under compulsory joinder:

Answer 152

FRCP 19 states that joinder is required for any person (i.e., they are deemed a “required party”) who either:

(i) is required for the court to be able to accord complete relief among the existing parties; OR
(ii) has such an important interest in the case such that NOT joining them will either:
cause them a practical impairment or impediment in protecting their interest; OR
expose an existing party to a substantial risk of multiple or inconsistent liability.

Question 153

What happens if joining a compulsory party will destroy jx?

Answer 153

If the required party cannot be joined for any reason, such as because their joinder will destroy jurisdiction, the court
must make a choice: whether “in equity and good conscience,” the case should proceed without the required party,

OR, if the absent required party should be deemed “INDISPENSABLE,” meaning the court dismisses the case
entirely.

Question 154

Factors courts use when a compulsory claim would destroy jx:

Answer 154

the extent of any prejudice to the absent party or existing parties following a judgment;

whether such prejudice may be reduced or abated by provisions in the judgment, relief offered, or other avenues;

whether a judgment issued without the absent party will be adequate; AND

if the case is dismissed for nonjoinder, whether the plaintiff will have an adequate alternative remedy.

Question 155

If a compulsory party’s interest will destroy jx, but it will only be impaired, not prejudiced?

Answer 155

They are not considered indeipendsable

Question 156

The court must approve of what in a class action?

Answer 156

FRCP 23(e) requires the court to approve of the dismissal or any settlement agreement in a class action lawsuit.
Procedural for the court’s approval must include a hearing to ensure the settlement is “fair, reasonable, and
adequate.”

Question 157

Can the court give members an opportunity to opt out of a damages class action settlement?

Answer 157

The court is permitted to give members of the class an opportunity to opt out of the settlement, but is
not required to, before conducting a hearing and approving the agreement.

Question 158

When can a pleading be amended?

Answer 158

A pleading may be amended once without the leave of the court within 21 days after the original pleading is filed. After
the 21-day window to amend a pleading as a matter of course closes, FRCP 15(a)(2) allows courts to grant leave to
amend when justice so requires. Normally, leave to amend a pleading should be denied only if it would cause actual
prejudice to the other party.

Question 159

Must a compuslory counterclaim be included in an answer?

Answer 159

Yes, or it is waived

Question 160

What is the standard for ESI?

Answer 160

And, when making a decision regarding this type of
burdensome discovery request, the judge should consider the likely benefit of the material to the respective parties,
the needs of the case, the amount in controversy, the parties’ respective resources, the importance of the issues at stake, and the importance of the discovery in resolving the issues.

FRCP does not provide for the discovery of ESI

Question 161

If party is deemed required or necessary, then joinder is ______

Answer 161

compulsory

Question 162

What does permissive intervention do?

Answer 162

permissive intervention allows a nonparty to ask to join an action.

Permissive intervention is available when a nonparty’s claim or defense and the main action share a
question of fact or law in common.

Question 163

How does a party respond in an answer?

Answer 163

Every allegation in the complaint has to be admitted,
denied, or the answer can deny sufficient information upon which to form a belief as to its truth.

Question 164

What is the standard on answers?

Answer 164

Rule 11 ensures that when the defendant’s lawyer signs the answer, any denials are “warranted on the evidence, or if
specifically so identified, are reasonably based on belief or a lack of information.” The “reasonable inquiry”
requirement aims to prevent the defendant’s attorney from denying allegations that he KNOWS to be truthful, and
from denying knowledge or information about the allegation if he knows it to be truthfully

You have enough information to form a good faith belief

Question 165

During discovery, six months before trial was set to begin, the baseball player asked the court to intervene and
compel the agent to disclose whether he intends to call any other expert witnesses with respect to the same issue.
Is the court likely to intervene and compel disclosures from the agent?

Answer 165

Parties must disclose to the other parties the identity of any witness that the party may use at trial to
present evidence. The duty to disclose carries over into supplementary disclosures that must be made prior to trial.
Therefore, because the trial is still months away, allowing time for additional discovery, the baseball player will likely
have to wait for the agent’s supplementary disclosures before the court will intervene.

Question 166

RCP 16(c)(1) requires attorneys attending pre-trial conferences to be??

Answer 166

to be prepared and authorized to make
stipulations and admissions regarding issues reasonably anticipated for discussion at the conference.

Question 167

16(f)(1)(B) allows for the imposition of sanctions when attorneys come to pre-trial conferences….

Answer 167

substantially unprepared” to the conference or
act in bad faith

Question 168

What happens if something occurs after an original pleading?

Answer 168

FRCP 15(d) allows a plaintiff to move to add a “supplemental pleading” to an original complaint, defined as an event, occurrence, or transaction that occurred after the date of the original pleading. The court must give permission for a supplemental pleading.

Question 169

How do plaintiffs avoid a time bar with supplemental pleading?

Answer 169

Sometimes a statute of limitations runs out between the filing of the original complaint and the amendment. To avoid atime bar, a litigant may argue that their amended pleading “relates back” to the date of the original pleading.

An amendment relates back to the date of the original pleading when the claim or defenses asserted in the amended pleading arose out of the conduct, transaction, or occurrence set out in the original pleading.

Question 170

What is impleader?

Answer 170

Federal Rule of Civil Procedure 14(a) allows a defendant who believes that a nonparty is liable to him in indemnity or contribution for all or part of the plaintiff’s claim against him may implead the nonparty as a co-defendant.

Question 171

How does a defendant implead a third party?

Answer 171

If the third-party claim does not have an independent jurisdictional basis, it will typically fall within the court’s
supplemental jurisdiction because it will satisfy the “common nucleus of operative fact” standard for supplemental
jurisdiction.

Supplemental jurisdiction is governed by 28 U.S.C. § 1367, which generally allows ancillary claims to fall within the
court’s supplemental jurisdiction in diversity-only cases, thus eliminating the diversity and amount-in-controversy
requirements as to the supplemental claim.

Question 172

Once a trial court issues an order after a final pretrial conference, can that order may be modified?

Answer 172

only to
prevent manifest injustice

Thus, if the manufacturer’s attorney wants to modify the final pretrial order, the attorney must move for a modification and demonstrate that manifest injustice would result if the order is not
modified.

Question 173

When is a complaint against a third-party improper?

Answer 173

It is improper for a defendant to file a third-party complaint against a third-party defendant on the theory that the third-party defendant is the only liable party, and that the original defendant is not liable at all.

Question 174

What is a TRO?

Answer 174

emporary restraining order (TRO) is a 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.

Question 175

How can a TRO be granted?

Answer 175

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

(i) the 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;

(ii) the moving party certifies in writing
all efforts to give notice of the hearing, if any, AND
the reasons why notice should not be required; AND

(iii) the
moving party provides some security, the amount of which is determined by the court, to pay for any costs and
damages incurred by the adverse party if he has wrongfully enjoined or restrained.

Question 176

What must a judge support a JMOL with?

Answer 176

The judgment must be supported by
findings of fact and conclusions of law.

Question 177

If a class is seeking injunctive or declaratory relief, is notice to all class members required to be bound?

Answer 177

Nope

Question 178

A final judgment in a non-jury trial requires the judge to make….?

Answer 178

specific findings and state conclusions in
support of the judgment.

Question 179

If a federal court dismisses a federal claim and a connected state claim remains in the court, can that be appealed to the court of appeals?

Answer 179

nder the final judgment rule, an appeal is not allowed. The state-law claim remains to be decided, and
there is not yet a final judgment on the merits of the entire action.

Question 180

What is the standard of review when someone challenges the admissibility of evidence?

Answer 180

Determining the relevance of evidence 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. Therefore, this
argument will be reviewed on appeal using an abuse of discretion standard.

Question 181

What is the standard of review for a trial judge’s findings of fact?

Answer 181

Findings of fact, whether based on oral or other evidence, must not be set aside unless they were “clearly
erroneous.”

To make a ruling on the licensor’s infringement claim, the district court must examine the manner in which
the teacher used the trademark and make factual findings that the teacher used the trademark in a manner likely to
confuse consumers.

“Clearly erroneous” is the correct standard of review for the appellate court to apply when
examining the district court’s ruling.

Question 182

Can a district court order granting or denying class certification be appealed?

Answer 182

A district court’s order granting or denying certification of a class action can be appealed within 14 days of entry of the
order.

An interlocutory appeal is discretionary and may be available when:
(i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is
substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate
termination of the litigation; AND

(ii) the court of appeals agrees to allow the appeal. 28 U.S.C. § 1292(b).

Question 183

What if someone does not effectively serve the other party in time?

Answer 183

Federal Rule of Civil Procedure (FRCP) 4(m) requires that service be made within 90 days after the complaint is filed with the court. Because the buyer’s attorney did not effect timely service, the only way to survive the seller’s motion to dismiss is for the buyer to demonstrate good cause for failing to do so.

Fed. R. Civ. P. 4(m). “Good
cause” is typically something beyond the party’s control. Forgetting to effect service does not constitute good cause.

Question 184

When must a party demand a jury trial?

Answer 184

FRCP 38(b) allows a party to demand a jury trial “[o]n any issue triable of
right by a jury” by serving the opposing parties with a proper written demand.

The party who wishes for a jury trial on a
particular issue must file a demand within 14 days after the service of the last pleading directed to that issue.

Question 185

Can a court grant the request for a jury trial as a matter addressed to the
discretion of the court?

Answer 185

The time limits for requesting a jury trial in Rule 39 do not deny the court the discretion to order a jury
trial after an untimely request, but this is discretionary and they do not have any right to one

Question 186

Which would count as the correct pleading for jury demand timing: a motion to dismiss or an answer?

Answer 186

A party who wishes to have a jury trial must file a demand with the court for a jury trial. The demand must be made within 14 days after the last pleading related to the issue is served or else the demand is waived. In this case, the architect did not file an
answer to the first or second complaint.

Therefore, the last pleading related to the issues the retailer is requesting a
jury for has not yet been served. The retailer did not miss the 14-day deadline and may still demand a jury.

Question 187

Are overlapping federal and state claims divisble for final judgement?

Answer 187

Under Federal Rule of Civil Procedure (FRCP) 54(b), if an action includes federal-law and state-law claims that involve overlapping facts and evidence, the court will typically not enter a final, appealable judgment on the claim that has been resolved.

This practice is to avoid duplication of effort in the appellate and trial courts

Question 188

What is the standard for a judgment as a matter of law? (renewed too?)

Answer 188

if no reasonable jury could
find for the other party

Question 189

When an appellate court reviews a denial of a motion for a new trial

Answer 189

The appellate court may affirm the trial court’s denial of the seller’s post-judgment motion for a new trial if it determines that the jury verdict was not against the clear weight of the evidence.

Note: the appellate court could affirm the verdict based on any deferential
review of the trial court’s basis for the ruling under the abuse of discretion standard.

Question 190

If a party fails to supplement early disclosures and the tries to offer an affidavit

Answer 190

FRCP 37(c)(1), which governs the failure to make proper discovery motions, including the failure to supplement earlier
mandatory disclosure, states: “If a party fails to provide information or identify a witness as required by Rule 26(a) or
(e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is harmless.”

Question 191

When can an original D implead a 3rd party

Answer 191

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

Question 192

What is a TRO?

Answer 192

temporary restraining order (TRO) is a 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. A TRO may be granted WITHOUT notice of the hearing to the adverse party if three requirements are met:

(i) the 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; (ii) the moving party certifies in writing
all efforts to give notice of the hearing, if any, AND the reasons why notice should not be required; AND
(iii) the
moving party provides some security, the amount of which is determined by the court, to pay for any costs and
damages incurred by the adverse party if he has wrongfully enjoined or restrained.

Question 193

Can someone immediately appeal a TRO?

Answer 193

A TRO is a short-term pre-trial temporary injunction to protect from an irreparable injury.

These orders are intended to be stop-gap measures, and only last until the court holds a hearing on whether or not to grant a preliminary injunction.

Judges’ decisions on whether or not to issue a TRO, generally, may not be appealed.

Here, the court extended the TRO for an additional 30 days, giving it the effect of a preliminary injunction. Therefore, it is
appealable and the court is not likely to dismiss the appeal.

Question 194

What is required of a judgment in a non-jury trial?

Answer 194

final judgment in a non-jury trial requires the judge to make specific findings and state conclusions in
support of the judgment.

As such, without any specific findings or conclusions, a judgment that simply says “judgment for the electrician” does not constitute a final judgment.