Civil Procedure

Question 1

Subject Matter Jurisdiction

Answer 1

a court’s competence to hear and determine cases of the general class and subject to which the proceedings in question belong:

Five most common congressional grants are:
1) Federal Question Jurisdiction
2) Diversity Jurisdiction
3) Supplemental Jurisdiction
4) Removal Jurisdiction
5) Legislative Jurisdiction

Presume does not have SMJ unless burden seeking it meets their burden

Cannot be waived

Can object to SMJ any time

Question 2

Federal Question Jurisdiction

Answer 2

Art. III, Sec. 2 US Con.: federal judicial power shall extend to cases arising under the Constitution, the Laws of the United States, and, and Treaties or made under their authority

Original jurisdiction

State and Federal courts concurrent except where Congress has specified otherwise (patent law)

Question 3

Federal Abstention

Answer 3

A federal court may abstain from hearing a case or stay the matter when

1) Resolution of a state-law issue by the state court would eliminate the need for the federal court to decide a federal constitutional issue
2) Avoidance of federal involvement with a complex state regulatory scheme or matter of great important to the state
3) state action involves punishment of an individual for criminal activity or for contempt of court, or imposition of a civil fine, and federal court asked to enjoin such activity
4) Parallel Proceedings that go beyond mere waste of judicial resources

Question 4

Scope of Federal Question Jurisdiction

Answer 4

Generally - if cause of action in question expressed created by federal law, and federal law provides underlying right, it exists;

Right created when cause of action may fairly be implied and intended

If not explicit or express created, will apply over state law when
1) Necessarily raised
2) actually disputed
3) substantial AND
4) capable of resolution in federal court w/o disputing federal and state balance

Question 5

Diversity Jurisdiction

Answer 5

Art. II Sec. 2 US Con.: Congress to extend federal jurisdiction power to controversies between citizens of different state and between a state or the citizens thereof, and foreign states citizens or subjects

Must exceed $75,000

Generally includes all matters that meet requirements EXCEPTIONS: probate matters and domestic-relations actions

Question 6

Foreign Sovereign Immunities Act

Answer 6

suit may not be brought in federal or state court against a foreign state, unless exception applies

EXCEPTIONS:
1) engaging in a commercial activity
2) committing a tort in US
3)Seizing property in violation of international law

Question 7

Complete Diversity

Answer 7

Requires complete diversity between opposing parties - no diversity if a plaintiff is the same state as any defendant;

EXCEPTIONS:
1) Interpleader - Federal Interpleader Act: only needs two adverse claimants of diverse citizenship to establish federal jurisdiction
2) Class Action Greater $5,000,000 - applies any member of P is diverse than any member of D

3) Multiforum Trial Jurisdiction Act 2002: civil action from a single accident where 75 natural persons have died in discrete location - only need sone P diverse:
a) D resides in a state and accident took place in other location
b) Any 2 D reside in different states
c) substantial parts of accident took place in different states
EXCEPTION: substantial majority P citizens of a single state of which primary defendants are citizens AND claims asserted will be governed by state law

Question 8

Citizenship of Parties

Answer 8

Individual: domiciled in a state and a US citizen (domicile is where individual is present and intends to reside for an indefinite period) - only one

Corporations: citizen of every state and foreign state incorporated and principal place of business - may be citizen of multiple

Partnership: citizen of each state in which a member of its members is domiciled
EXCEPTION: treated as a class when appears that the representative parties will fairly and adequately protect the intersts of the association and its members

Question 9

Domicile

Answer 9

where individual is present and intends to reside for an indefinite period

Can change when a person establishes a presence in the new place and manifests intent to remain there indefinitely

Question 10

Incorporation

Answer 10

state in which the corporate entity is legally established

Question 11

Principal Place of Business

Answer 11

question of fact; refers to the nerve center of the corporation - generally the location from which high level officers direct, control, and coordinate activates of the corporation

Question 12

Partnerships Domicile

Answer 12

an unincorporated association is a citizen of each state in which each of its members is domiciled;

Exception: may be treated as a class when it appears that the representative parties will fairly and adequately protect the interests of the association and its member

Question 13

Compulsory Counterclaims

Answer 13

Defendant against a plaintiff; generally a claim arising out of the same transaction or occurrence as the plaintiff’s claim

Will have supplemental jurisdiction

Same Transaction:
1) issues of fact and law in the claims are essentially the same
2) same evidence would support or refute the claims
3) a logical relationship between the claims AND
4) res judicata would bar a subsequent suit on either claim

Question 14

Permissive Counterclaims

Answer 14

a claim arising out of a transaction unrelated to the plaintiff’s claim

Must meet the statutory jurisdictional amount requirement

Question 15

Devices to Create or Destroy Diversity

Answer 15

1) Assignment of Claims: a legitimate assignment of a claim, assignee becomes the real party and its citizenship will be determinative
2) Failure to Name Indispensable Parties: cannot manufacture diversity by failing to join a nondiverse indispensable party
3) Voluntary Change of State Citizenship: party may voluntary change state citizenship after accrual of a cause of action, but before commencement of lawsuit, and can establish or defeat (must be genuine - like for if indefinite)
4) Substitution Versus Replacement of Parties:
Rule 25 - substitution party due to death or incompetence (does not have to satisfy diversity)
Replacement: must be replaced - wrong party named in complaint)

Question 16

Supplemental Jurisdiction

Answer 16

may exercise over jurisdiction over additional claims over which the court would not independent have subject matter jurisdiction but that are so related to the original claim that additional claims form part of the same case or controversy

Test: arise out of a common nucleus of operative fact

Question 17

Common nucleus of operative fact test

Answer 17

Same transaction or occurrence

Federal Question: subject matter jurisdiction over claims of federal question and additional claims that meet common nucleus of operative fact test

Diversity: applies to if have diversity claim
a) Permissive Joinder: additional claim asserted by the plaintiff must satisfy complete diversity (Does not $75k)
b) Counterclaim - may be asserted w/o additional proof; permissive must meet jurisdictional amount and complete diversity
c) Crossclaim - if smae transaction or occurence

Question 18

Pendent-Party Jurisdiction

Answer 18

claims that involve the joinder or intervention of additional parties over which the court would not otherwise have jurisdiction if claims involving satisfy common nucleus-of-operative-fact test

Question 19

Removal Jurisdiction

Answer 19

any civil action commenced in a state court that is within the original jurisdiction of a US district court may generally be removed by D to district court and division in which the state-court action is pending

Invoked by the D

Diversity the basis for removal - claim may be removed only if no defendant is a citizen of the state which the action is filed

Question 20

Personal Jurisdiction

Answer 20

must be able to exercise judicial power over the persons or property involved in the case; governed by state statutes regarding jurisdiction and due process requirements of US Constitution

Defense must be raised:
1) pre-answer motion or
2) if no pre-answer motion is made, in the original answer or answer amended as a matter of course (without court permission)

Question 21

Nationwide Personal Jurisdiction

Answer 21

Federal court has nationwide personal jurisdiction when authorized by federal statute (interpleader)

Question 22

Bulge Provision

Answer 22

Federal court has personal jurisdiction over a party who is served within a US Judicial district and not more that 100 miles from the summons is issued

Question 23

Federal Court Jurisdiction Rule 4(k)(2)

Answer 23

Three conditions:
1) plaintiff’s claims must be based on federal law
2) no state court can exercise personal jurisdiction over the defendant AND
3) exercise of jurisdiction must be consistent with US Constitution and alws (“minimum contacts” and notice required on D)

Question 24

In Personam Jurisdiction

Answer 24

Power that a court has over an individual party; required whenever judgment is sought that would impose an obligation on a defendant personally

Question 25

Basis for In Personam Jurisdiction

Answer 25

1) Voluntary Presence: served while in state voluntarily 2) Domicile 3) Consent: implied by untimely objection to personal jurisdiction or by express consent 4) Long Arm Statutes 5) Attachment: property located in state and belongs to D

Question 26

Long Arm Statutes

Answer 26

statute that gives courts within state personal jurisdiction over out-of-state defendants Most based on specific activities including driving on high ways, committing a tort, entering into contract, etc.

Question 27

Due Process Met

Answer 27

1) Minimum Contacts - 2) Purposeful Availment 3) Specific and General Jurisdiction 4) Imputed Contracts

Question 28

Due Process Requirements

Answer 28

deprivation of property by adjudication be preceded by notice and opportunity for a hearing appropriate to the nature of the case

Question 29

Notice

Answer 29

Generally: constitutional test is what is reasonable under the circumstances If known - automatically reasonably through 1) In-person delivery 2) registered mail 3) return receipt requested 4) Other statutory made for each state

Question 30

Venue

Answer 30

which court among the courts having subject matter and personal jurisdiction is the proper forum for the hearing; Generally: venue in federal proper where 1) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located OR 2) judicial district in which a substantial part of the events or omissions on which the claim is based occurred or where substantial party of the property that is subject of the action is located

Question 31

Change of Venue from Proper Venue

Answer 31

Generally can be changed for the convenience of parties and witnesses a district court may transfer any civil action to any other district where it might have been brought or to any district to which parties have consented Diversity: court transfers, then district court is transferred must apply the law that would have been applied in the district court that transferred the case Federal Question: the district court to which the case is transferred must apply the federal law as interpreted as the federal court of Appeals Forum-Selection Clause: typically valid unless unreasonable and unjust or that the clause was invalid due to fraud or overreaching

Question 32

Change of Venue from Improper Venue

Answer 32

Must be dismiss or if it be in the interest of justice, transfer the case to any district in which the case could have been brought; can be valid if no objected timely Diversity: applies choice-of-law rules of state which located Federal Question: anew court rules apply

Question 33

Forum non conveniens

Answer 33

common law doctrine allows a court to dismiss an action even when personal and venue proper, if court finds the forum would be too inconvenient for the a parties and witnesses and another, more convenient venue is available

Question 34

Erie Doctrine Federal Question

Answer 34

the federal substantive and procedural law will control, as well as federal common law

Question 35

Erie Doctrine Diversity Claim

Answer 35

Substantive: district court is required to apply state substantive law; which state law will apply, will use conflict-of-law rules of state in which it is located Procedure: if procedural issue addressed under valid federal law, then federal law applies IF no statute, general rule must follow state law regarding substance

Question 36

Substance v. Procedure

Answer 36

General Approach: 1) Whether there is a conflict between state and federal law 2) If conflict, court must ask whether a valid federal statute covers the dispute 3) Procedura on point, apply federal law; if none 4) whether the failure to apply state law will lead to different outcomes in state and federal court a) no - district court apply federal common law b) yes - court will apply state law unless affirmative federal interests

Question 37

Substantive Law Examples

Answer 37

1) elements of a claim or defense 2) Statute of limitations and tolling provisions 3) burden of proof

Question 38

Procedural Law Examples

Answer 38

1) Judge-jury allocation 2) assessment of attorney fees 3) equitable versus legal

Question 39

Federal Common Law in Federal Question Cases

Answer 39

1) Admiralty cases 2) cases in which the United States is a party 3) cases involving interstate dispute 4) cases implicating relations with foreign countries 5) cases in which the government acts in a proprietary role 6) when Congress has left a gap in a statutory scheme

Question 40

Diversity Cases

Answer 40

apply federal common law only when a uniquely federal interest is at stake and a significant conflict exists between that interest and operation

Question 41

Service of Individuals

Answer 41

Individuals: 1) Personally serving the summons and complaint on the D 2) leaving the summons and complaint at D's usual place of abode with a person of suitable age and discretion who resides there OR 3) delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service

Question 42

Service of Corporations

Answer 42

Corporations: 1) delivering summons and complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process 2) Stservice following state law for serving summons on an action

Question 43

Service on US Government

Answer 43

Government: 1) deliver a copy of summons and complaint to US attorney for district where the action is brought 2) send a copy by registered or certified mail to US Attorney General AND 3) if action challenges an order of a nonparty agency or officer of the United States, send a copy by registered or certified mail to the agency

Question 44

Waiver of Service

Answer 44

individual and corporations have a duty to avoid unnecessary expenses of serving the summons by waiving service - not available if government or a minor Request Waiver: 1) made in writing and addressed to dependent; two copies of waiver form, prepaid, and give reasonable time 30 days respond (60 for foreign) Effect extends time to file an answer from 21 days to 60 days

Question 45

Injunction

Answer 45

a form of equitable relief mandating that a defendant perform a specified act or prohibiting a defndent from performing a specified act Must: 1) state reasons for its issuance 2) state its terms 3) specify acts that the defendant is restrained from performing or required to perform

Question 46

Mandatory Injunction

Answer 46

a specific relief requires a person to engage in an affirmative act that typically changes the status quo

Question 46

Prohibitory Injunction

Answer 46

which is a form of preventive relief, restrains, or prohibits a party from engaging in a specified behavior

Question 47

Temporary Restraining Order

Answer 47

Preserves the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction Remain effective for no longer than 14 days unless good cause exists or adversary consents Must contain: 1) date and time issued 2) irreparable harm suffered by the plaintiff AND 3) reasoning behind the ex parte issuance

Question 48

When can a TRO be issued without notice

Answer 48

1)the moving party can establish in a verified complaint that immediate and irreparable injury will result prior to hearing the adverse party's opposition AND 2) movant's attorney certifies in writing any efforts made to give notice and reason notice should not be required

Question 49

Preliminary Injunction

Answer 49

form of relief issued prior to a full hearing on the merits, but only upon notice to the defendant and a hearing on whether the injunction should issue Must establish: 1) plaintiff is likely to succeed on the merits 2) p likely to suffer irreparable harm 3) balance of equities is in the plaintiff's favor AND 4) injunction is in the best interests of the public

Question 50

Complaint

Answer 50

Initiates an action filed by plaintiff and serves notice to opposing party Must include: 1) a short and plain statement of the grounds that establish the court's subject matter jurisdiction 2) short and plain statment of the claim establishing entitlement to relief AND 3) demand for judgment for the relief sought by pleader

Question 51

Motion to Dismiss

Answer 51

Can be based on: 1) lack of subject matter jurisdiction 2) lack of personal jurisdiction 3) improper venue 4) insufficient process 5) insufficient service of process 6) failure to state a claim upon which relief can be granted AND 7) failure to join a necessary or indispensable party under 19

Question 52

Motion to Dismiss Failure to State a Claim Upon Which Relief is Granted

Answer 52

More than speculation (assume that all the allegation in the complaint are true) must state enough facts to raise a reaosnable expectation Only consider allegation in the complaint Two step analysis: 1) court must identify and reject legal conclusions unsupported by factual allegations 2) court should assume the truth or veracity of well-pleaded allegations and should include a contact specific analysis

Question 53

Answer

Answer 53

a pleading by the defendant that responds to a plaintiff complaint; would also file an answer if responding to a defendant's counterclaim Must state any avoidance or affirmative defenses and special damages General denial denies everything in the claim Can file counterclaims -

Question 54

Permissive Joinder

Answer 54

a plaintiff may join other plaintiffs in an action or in which defendants may be joined in the same action Plaintiff: 1) assert any right to relief jointly, severally or in alternative with respect to or arising out of the same transaction, occurrence, or series of transaction AND 2) any question of law or fact common to all plaintiffs will arise Defendants: 1) any right to relief asserted jointly, severally, or in alternative with respect to or arising out of same transaction, occurrence, or series of transaction's/occurrence AND 2) question of law or fact common to all D will arise in one action

Question 55

Compulsory Joinder

Answer 55

circumstance in which parties must be joined - requirements of jurisdiction and venue must till be met Necessary parties: must be joined as a party if 1) complete relief cannot be provided to existing parties in the absence of that person 2) disposition in the absence of that person may impair the person's ability to protect his interest OR 3) absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligation

Question 56

Indispensable Parties

Answer 56

cannot be joined because of jurisdictional or venue concerns, in equity and good conscious, the action should proceed with existing parties or dismissed: Factors: 1)extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties 2) extent to which a judgment rendered could be reduced or avoided by protective provisions 3) whether a judgment rendered in the person's absence would be adequate AND 4) whether the plaintiff would have an adequate remedy if the action were dismissed for non-joiner

Question 57

Intervention

Answer 57

circumstances under which a nonparty may join in a lawsuit

Question 58

Intervention as of Right

Answer 58

nonparty has the right to intervene in an action when a federal statue confers the right and nonparty timely moves to intervene Has a right when: 1) nonparty has an interest in the property or transaction that is the subject matter of the action 2) disposition of the action may, as a practical matter, impair the nonparty's interest AND 3) nonparty's interest is not adequately represented by existing parties

Question 59

Permissive Intervention

Answer 59

Whether the nonparty timely moved to intervene is in the discretion of the trial court, consider factors: 1) length of time the movant knew or reasonably should have known that its interest was threatened before moving to intervene 2) prejudice to existing parties if intervention is permitted AND 3) prejudice to the movant if intervention is denied

Question 60

Interpleader

Answer 60

allows a person holding property to force all potential claimants to the property into a single lawsuit to determine who has right to the property

Question 61

Federal Interpleader Rule

Answer 61

Person with claims that expose a plaintiff to double or multiple liability may be joined as defenders - must have jurisdiction

Question 62

Federal Statutory Interpleader

Answer 62

only needs to be $500; requires only minimal diversity (one plaintiff diverse to one defendant) Has nationwide personal jurisdiction and service process

Question 63

Class Actions

Answer 63

Establishes four requirement for representative members of a class to sue or be sued on behalf of all members 1) numerosity - so large impracticable 2) commonality - law or fact common to class 3) typicality - claims or defenses of representatives must be typical of class 4) adequacy - fairly and adequately protect the interests of the class Three requirements for certification: 1) Risk of Prejudice - separate lawsuits would cause inconsistent adjudication or prosecution 2) Final Equitable Relief - share a general claim against the opposing party; individualize relief not available 3) Common legal or factual questions - a) class members interest's in individually controlling the prosecution or defense of separate actions b) extent and nature of any litigation concerning the controversy alrea dy begun by or against class members c) desirability or undesirability of concentrating the litigation of the claims in the particular forum AND d) likely difficulties in managing a class action

Question 64

Spoilation of Evidence

Answer 64

Negligent or intentional destruction or significant alteration of evidence required for discovery Tort action resulting in sanction if the information cannot be restored or replaced Can result if the party actions knew or should have known of a pending lawsuit If found acted with purpose of depriving the other party of evidence use in litigation, sanctions can include: 1) presumption that destroyed or lost information was unfavorable to the sanctioned party 2) jury instruction that it may or is must presume the information as unfavorable to the party 3) an entry of a default judgment against the party

Question 65

Privilege

Answer 65

information is not discoverable; must be expressly pled by the party when withholding discoverable information and with enough information for the opposing party to evaluate the applicability of the privilege

Question 66

Requirement for Class Action Settlement, Compromise, or Voluntary Dismissal

Answer 66

1) Court provides reasonable notice of proposal to all class members 2) parties file statement identifying agreements made in connection with proposal 3) hearing and opportunity for members to object 4) Court finding that proposal is fair, reasonable, and adequate Unlike most settlement agreements, the court must approve the agreement. Class members that reject class action settlement have right to appeal the court's approval of the agreement

Question 67

Special Rules for Venue

Answer 67

1) Removal - federal district where state action was pending 2) Foreign Resident - any judicial district 3) Federal Official in Official Capacity - where D resides, where substantial events occurred or property located, where plaintiff resides 4) Foreign Government - substantial events occurred or property located or DC federal court 5) Multiparty - where D resides, where substantial part of accident occurred 6) Federal Tort Claims Act - where P resides, where act/omission occurred

Question 68

Jury Polling

Answer 68

Unless parties stipulate otherwise, a verdict by the jury must be unanimous and returned by at least six jurors; court may poll jurors individually after a verdict is returned but before the jury is discharged If not unanimous, if not unanimous the court can either order a new trial or direct the jury to deliberate further

Question 69

Judgment as a Matter of Law

Answer 69

a request that the court issue a judgment in favor of the movant because the evidence is legally insufficient for a reasonably jury to find in the nonmovant's favor; Renewed motion for JMOL can no later than 28 days after the entry of judgment May be filed before the case is submitted to the jury but only after the nonmovant has had the opportunity to present evidence to establish that claim or defense (after D presents case).

Question 70

Interrogatories

Answer 70

Written questions served on another party - limit to 25; due within 30 days of service Parties can only be severed on opposing party

Question 71

Demand for a Jury Trial

Answer 71

1) serving the other parties with a written jury trial demand no later than 14 calendar days after the last pleading directed to that issue is served AND 2) filing the jury trial demand with the court within a reasonable time after service of the demand

Question 72

Oral Depositions

Answer 72

Court required to approve deposition when: 1) deposition exceeds 10-deposition limit 2) deposition sought before parties initial planning conference OR 3) deponent already deposed in action

Question 73

Final-Judgment Rule

Answer 73

Bars federal appellate courts from hearing an appeal until the federal district court has entered a final judgment Interlocutory appeals statute - provides some exceptions and allow immediate appeal

Question 74

Interlocutory Appeals Statute

Answer 74

Automatically appealable despite final judgment rule: 1) Injunction 2) certification by district court 3) class action certification 4) appointment of receiver 5) admiralty cases 6) Collateral-order doctrine 7) Bankruptcy cases 8) Mandamus 9) patent-infringement order

Question 75

Right to Amend

Answer 75

An answer can be amended once as a matter of course within 21 days: a) after serving the answer, if no responsive pleading is required OR b) if a responsive pleading is required, after being served with a responsive pleading or motion

Question 76

Sanction for Noncompliance

Answer 76

Sanctionable Conduct: a) failure to attend pretrial conference b) substantially unprepared for conference c) no good-faith participation in conference d) failure to obey Required Sanction: a) Payment of reasonable expenses unless - noncompliance is substantially justified or award of expenses is unjust Permissible Sanctions (reasonable under the circumstances): a) dismiss action in whole or in part b) strike pleadings in whole or in part c) hold in contempt of court d) issue default judgment e) prohibit use of evidence f) stay further proceedings

Question 77

Voluntary Dismissal

Answer 77

Plaintiff may dismiss suit without court order when: a) a notice of dismissal filed before D serves answer b) Summary Judgment motion OR c) all parties sign stipulation of dismissal May request court order to dismiss suit unless: a) defendant's counterclaim cannot independently adjudicated Effect: dismissal without prejudice unless: a) plaintiff previously dismissed federal or state action based on same claim OR b) notice or stipulation states otherwise

Question 78

Involuntary Dismissal

Answer 78

Defendant may move to dismiss suit if plaintiff failed to: a) prosecute own action OR b) comply with the rules or court order D may move to dismiss suit via: a) pre-answer motion b) judgment on the pleadings OR c) summary judgment Effect: Dismissal with prejudice unless: a) court order state otherwise OR b) based on lack of jurisdiction, improper venue, or failure to join required party

Question 79

With Prejudice

Answer 79

the plaintiff is precluded from suing the defendant on the same claim in the future

Question 80

Challenges to Potential Jurors

Answer 80

Peremptory: 3 per party, any basis other than race, ethnicity, or gender For Cause: unlimited, for bias or lack of impartiality; Ex: relationship with party or financial stake in the party

Question 81

Impleader

Answer 81

allows a defendant to add a nonparty to a suit who may be liable to the defendant of all or part of the plaintiff's claim; when occurs, the plaintiff may assert their own third-party claim against the third-party defendant if: a) arises out of the same transaction or occurrence that is the subject matter of the P claim against the defendant in the original complaint AND b) satisfies original subject-matter jurisdiction on own

Question 82

Time Line for Notice of Appeal

Answer 82

30 Days

Question 83

Issue Preclusion

Answer 83

bars the relitigating of issues that were actually litigated, determined, and essential to a valid final judgment Mutual - when issue preclusion in the second action is asserted by parties to the first action against other parties to the first action Nonmutual - when issue preclusion in the second action is asserted by nonparties to the first action against parties to the first action Cannot be asserted against a nonparty to the first action because it deprives that party of opportunity to fully and fairly litigate their claims and defenses

Question 84

Representations to Court

Answer 84

Every pleading, motion, or other document filed must be signed by attorney, certifying: 1) document is presented for proper purpose 2) claims, defenses, and legal contentions are warranted by existing law or by nonfrivolous argument for revising or establishing law 3) factual assertions have or will have evidentiary support AND 4) factual denials are warranted by evidence or reasonably based on belief/lack of information Can impose sanction either by: a) party's motion b) own court initiative - requires an order to show cause against violator

Question 85

Post Trial Correction of Mistakes

Answer 85

Clerical: Misstatement of court's intent needs to by the court's own initiative or by motion before an appeal is docketed OR with the appellate court's leave after appeal docketed Oversight/Omission: exclusion misrepresent the court's intent needs to be appealed the same

Question 86

Relation-back doctrine

Answer 86

Generally no amendment after statute of limitations has expired except: 1) Asserts New Claim - statue of limitations allows relation back OR new claim arsis from the same transaction or occurrence as original pleading 2) Changes Party - statue of limitations allows relation back OR concerns same transaction or occurrence as original pleading AND new party receives notice of suit within 90 days of original filing AND new party knew they would be sued