Civil Procedure

Question 1

Stay of enforcement/execution (FRE 60)

Answer 1

Most final judgments are automatically stayed for 30 days, unless court orders otherwise.

No stay, unless court orders otherwise, for order that:
(1) grants injunction or receivership, or
(2) directs accounting in patent-infringement action

Question 2

When can a party move for new trial?

Answer 2

Within 28 days after entry of final judgment

Question 3

Can a party challenge the sufficiency of the evidence supporting a jury verdict on appeal?

Answer 3

Yes, if it (1) moved for JMOL before the case was submitted to a jury AND (2) filed a renewed JMOL w/in 28 days after entry of final judgment.

Question 4

Interrogatories

Answer 4

Written questions served on another party (cannot be served on a non-party)

Limited to 25 questions

Written response due within 30 days of service

Question 5

When do “minimum contacts” exist over a defendant?

Answer 5

When the defendant purposefully avails itself of the state’s protections and benefits so that it should reasonably foresee being sued there.

Question 6

When do “minimum contacts” exist for a defendant-manufacturer?

Answer 6

When a defendant-manufacturer places goods in the stream of commerce plus purposefully targets the forum state (i.e. advertisements)

Question 7

A subpoena may command person’s attendance:

Answer 7

(1) within 100 miles of where person resides, is employed, or regularly transacts business or (2) within state where person resides, is employed, or regularly transacts business when person is a party or party’s officer OR commanded to attend trial and would not incur substantial expense

Question 8

Failure to respond to request for admission

Answer 8

Results in the matter being admitted and conclusively established in the action unless the admission is withdrawn or amended

Question 9

Deadline to serve an Answer

Answer 9

21 days after being served with complaint

Question 10

Deadline to serve an Answer after a Rule 12 motion denied

Answer 10

14 days from notice of denial or postponement

Question 11

A federal court may set aside a clerk default for good cause, when:

Answer 11

(1) the failure to timely respond was the result of the defendant’s excusable neglect, (2) the defendant presented meritorious defense, and (3) the plaintiff would not be substantially prejudiced if the case is reopened

Question 12

Can a party challenge a trial judge’s factual findings (resulting from bench trial) on appeal even if no objection made on the record at bench trial

Answer 12

Yes. This is the exception to the general rule requiring a party to formally object at trial to preserve an issue for appeal.

Question 13

Given that in a bench trial the judge acts as the finder of fact and interpreter of law, under what standards can an appellate court review the court’s decision?

Answer 13

(1) De Novo (no deference) – judge’s conclusion of law reversed if the appellate court reasonably believes the judge misinterpreted the applicable law

(2) Clear error (high deference) – judge’s findings of fact (i.e. witness credibility) will be reversed only if they were clearly erroneous such that no reasonable judge would have made them

Question 14

Three step process to determine whether joining a party is required

Answer 14

(1) Is absent party a “required party”? (2) Is joinder feasible?
(3) Is it equitable to proceed without required party?

Question 15

Claim preclusion (i.e. res judicata)

Answer 15

Provides that a valid final judgment on the merits precludes identical parties from relitigating identical claims. Claims are identical if they (1) arise from the same transaction, occurrence, or series thereof and (2) could have been raised in the first action.

NOTE: A claim based on same K but DIFF OCCURRENCE is not “identical” and, thus, court is unlikely to give preclusive effect to the state court judgment.

Question 16

When can a party move for a judgment on the pleadings?

Answer 16

After the pleadings have closed (i.e., once the plaintiff’s complaint and the defendant’s answer have been served).

Question 17

When should a party move for a more definite statement?

Answer 17

When a pleading is so vague or ambiguous that the party cannot reasonably draft a responsive pleading.

Question 18

Klaxon rule

Answer 18

A federal district court sitting in diversity must apply the choice-of-law approach prevailing in which it sits.

PP: designed to ensure that a federal court sitting in diversity and the state court sitting next door would reach the same result if presented with the case.

Question 19

Do federal courts have the authority to subpoena US citizens in a foreign country?

Answer 19

Yes; however, special rules governing the issuance and service of such subpoenas must be followed.

Question 20

When is a subpoena validly issued to an individual in a foreign country?

Answer 20

(1) When it contains the required contents, (2) is issued from the court where the action is pending, and (3) seeks testimony that is necessary in the interest of justice and impractical to obtain in an admissible form without the witness’ personal appearance

Question 21

When is a subpoena validly served on an individual in a foreign country?

Answer 21

(1) used a method of service that the federal rules allow for service fo process in a foreign country (i.e. pursuant to an international agreement) AND (2) paying the individual’s travel and attendance expenses.

Question 22

Aggregation of claims (i.e. joinder of claims to satisfy diversity requirements)

Answer 22

A party may join as many claims as it has against an opposing party in fed court – even if the claims arise out of diff facts or occurrences – provided SMJ is satisfied.

Question 23

Claim preclusion

Answer 23

Before merger or bar apply, it must be shown that (i) the earlier judgment is a valid, final judgment “on the merits”; (ii) the cases are brought by the same claimant against the same defendant; and (iii) the same “cause of action” (or “claim”) is involved in the later lawsuit.W

Question 24

When the claimant won the earlier lawsuit, the claim is said to be (Claim preclusion)

Answer 24

Merged into the prior judgment

Question 25

When the defendant won the earlier lawsuit, the claim is said to be (Claim preclusion)

Answer 25

Barred by the prior judgment

Question 26

For a party to be bound by issue preclusion, there must have been:

Answer 26

(1) a final judgment; (2) issue must have been actually litigated and determined; (3) issue must have essential to the judgment; and (4) the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action

Question 27

Traditional mutuality rule

Answer 27

Only someone who was a party in the previous case can use issuue preclusion. However, this rule has been modified to allow nonparties to use issue preclusion in certain circumstances. When a nonparty wants to use a previous judgment offensively, the court must consider whether it would be fair and equitable to allow the nonparty to do so.

Question 29

Compulsory claim

Answer 29

One that arises from the same transaction or occurrence as the opposing party’s claim and does not require adding a party over whom the court cannot acquire JX, which MUST be asserted in the pending lawsuit or it is waived

Question 30

What is a cross claim?

Answer 30

A claim for relief asserted against a coparty (eg, a defendant against a codefendant). This type of claim is always permissive (not compulsory) and can only be asserted if it arises from the same transaction or occurrence as another claim in the lawsuit. `

Question 31

When suing the US, its agencies, or employees, who must the plaintiff serve?

Answer 31

Plaintiff must serve process on (1) the US attorney (or designated agent) for the district court where the suit is filed or the civil-process clerk at the US attorney’s office, (2) the US attorney general, and (3) any agency or officer whose official conduct is being challenged

Question 32

Venue

Answer 32

The geographical location of the federal court that can hear a lawsuit

Question 33

Where is venue proper?

Answer 33

In any judicial district where: (1) any defendant resides — so long as all defendants reside in the same state (i.e. residency based venue); (2) a substantial portion of the events that gave rise to the suit occurred (i.e. events-based venue) or a substantial part of the property at issue is located (i.e. property-based venue); OR (3) any defendant is subject to the court’s personal jurisdiction — but only if neither of the above provisions applies (i.e. fallback provision)

Question 34

Under FRE 403, the court may exclude relevant evidence if it’s probationer value is substantially outweighed by a danger of one or more of the following:

Answer 34

(1) unfair prejudice; (2) confusing issues; (3) misleading jury; (4) delay/waste of time; and (5) needlessly cumulative

Question 35

Final judgment rule

Answer 35

Appeal only allowed after final judgment

Question 36

When are interlocutory appeal (i.e. appeal from trial court that occurs before final judgment) allowed?

Answer 36

ICCAACBMP (In Certain Circumstances, An Appeal Can Be Made Prematurely) — Injunction, Certification by District Court, Class action certification, Appointment of receiver, Admiralty case, Collateral-order doctrine, Bankruptcy case, Mandamus, Patent infringement

Question 37

Claim Preclusion

Answer 37

Only parties to the first action (or their “privies”) may receive the benefit of claim preclusion in a second action.

Question 38

When no internationally agreed method of service or applicable federal law exists, an individual defendant in a foreign country can be served (1) by following the foreign country’s service-of-process rules, (2) as the foreign country directs in response to a letter rogatory or (3) by delivering process to the defendant personally or by mail – if permitted by the foreign country.

Question 39

What is a default?

Answer 39

A default occurs when the defendant fails to file a timely answer with the court. A clerk will note this in the case file.

A “default” means that the defendant did not answer – that is it. It does not give the plaintiff any rights.

Question 40

What is a default judgment?

Answer 40

Remember, a default alone has no binding effect or consequences for the plaintiff. Plaintiff will need to seek a default judgment. A default judgment will be entered upon motion of the plaintiff, assuming that the defendant does not have a good reason for failing to answer the complaint.n

Question 41

When can a clerk enter a default judgment?

Answer 41

When the amount sought is “sum certain” and no notice is required.