Civil Procedure

Question 1

A. Federal Subject Matter Jurisdiction (SMJ)

Three Types of Subject Matter Jurisdiction:

Answer 1

1) Federal Question
2) Diversity of Citizenship
3) Supplemental Jurisdiction

*A federal court may only hear cases when it has SMJ because it’s a court of limited jurisdiction.
*The court MUST dismiss an action if it lacks SMJ.

Question 2

A. Federal Subject Matter Jurisdiction (SMJ)

Federal Question Jurisdiction

Answer 2

– Exists when the claim arises under
(a) federal law,
(b) the U.S. Constitution, OR
(c) U.S. treaty.
− P must be enforcing a federal right.
− Federal question MUST be present on the face of a well pled complaint.
− Raising a defense under federal law is NOT sufficient.

Question 3

A. Federal Subject Matter Jurisdiction (SMJ)

Diversity of Citizenship Jurisdiction

Answer 3

Requires BOTH:
1) Complete diversity of citizenship at the time the action is commenced (No P can be from the same state as any D); AND
Citizenship is determined by domicile:
− Natural Person:
(1) residence, and
(2) subjective intent to make the state their
permanent home.
− Corporation:
Has dual citizenship→
the principal place of business +
any state where it is incorporated.
− Unincorporated Association:
Deemed to be a domiciliary of the state of every
partner/member/owner.
− Executor/Personal Representative:
Citizenship is that of the decedent or person being represented.

2) Amount in controversy exceeds $75,000.
Based on damages alleged in good faith in the Complaint, UNLESS it’s legally certain that the P cannot recover the specified amount.
− Injunctive Relief = the amount of the benefit to P or cost of compliance for D.
− May aggregate claims against one D (or against multiple Ds if they are jointly and severally liable).

Question 4

A. Federal Subject Matter Jurisdiction (SMJ)

Diversity Jurisdiction of a Large Class Action – exists when:

Answer 4

1) Amount in controversy exceeds $5 million;
2) At least 100 class members; AND
3) Minimal diversity is present – if any member of the plaintiff class is a citizen of a State different from any defendant.

Limits on Class Action Diversity Jurisdiction:
− Court MAY decline to exercise jurisdiction when： non-diverse members are greater than 1/3 and less than 2/3 of the total class.
− Court MUST decline to exercise jurisdiction when non-diverse members are greater than 2/3 of the total class.

**Class Action Jurisdiction DOES **NOT apply:
a) If the primary D’s are States, State officials, or other govt. entities that the court is foreclosed
from ordering relief;
b) If less than 100 class members; OR
c) In class actions involving securities or corporate fiduciary claims.

Question 5

A. Federal Subject Matter Jurisdiction (SMJ)

Supplemental Jurisdiction

Answer 5

– Allows a party to bring a
state claim in Federal Court that does not meet the requirement of SMJ.
− A Federal Court may exercise Supplemental Jurisdiction when such claim arises from a **common nucleus **of operative fact as the other claims the court has SMJ over (the claims must arise out of the same transaction or occurrence).

Limitations of Supplemental Jurisdiction:
− Supp. Jurisdiction CANNOT be used to
overcome a lack of diversity.
− It CANNOT be asserted if it would violate
complete diversity.
− It DOES NOT apply to claims by the original
Plaintiff against a third-party Defendant.

A court MAY decline to exercise Supp. Jurisdiction when:
a) a claim raises a novel or complex issue of State law;
b) a claim substantially predominates over the other claims which the court has SMJ;
c) the court dismissed all claims that had federal SMJ; OR
d) in exceptional circumstances.

Question 6

A. Federal Subject Matter Jurisdiction (SMJ)

Domestic Relations Exception

Answer 6

– Federal courts MUST decline jurisdiction if a case primarily involves domestic relations matters (divorce, alimony, child custody/support issues).
−But, a court should NOT decline jurisdiction when a domestic relations matter/issue is ancillary (附属的）to the case.

Question 7

A. Federal Subject Matter Jurisdiction (SMJ)

Removal

Answer 7

– Defendant MAY remove a case to Fed. Court (in the district where the state court case was originally filed) if:
1) The federal court has SMJ;
2) All defendants agree;
3) No defendant is a resident of the forum state (if removal is based on diversity jurisdiction); AND
4) Removal is sought within 30-days of service of the Summons or receiving the initial pleading (whichever is shorter).

A plaintiff CANNOT remove a case to Fed. Court.

Question 8

A. Federal Subject Matter Jurisdiction (SMJ)

Abstention Doctrines

Answer 8

– Federal courts MAY abstain from hearing a case when it would intrude upon the powers of another court.
Additionally, a court may stay a case arising from ambiguous state law to await the outcome of a pending state court case.

** Abstention Doctrines:**
− Pullman Doctrine – discretion to abstain when a case arises from unsettled areas of state law, and a state court interpretation may remove the need to decide the case on federal grounds.
− Younger Doctrine – court may abstain from hearing constitutional challenges to a state action when it would interfere with a state judicial proceeding.
− Colorado River Doctrine – court should abstain when parallel (substantially the same) state and federal litigations are pending.
− Burford Doctrine – abstaining is appropriate if federal adjudication would interfere with a state’s administration of a complex regulatory scheme.

Question 9

B. Personal Jurisdiction (PJ)

Personal Jurisdiction Requirements

Answer 9

– Fed. Courts must have PJ over a party for its judgment to be binding.
− Fed. Courts can exercise PJ to the same extent as the State courts where the federal district court is located.

Personal Jurisdiction falls into 2 categories:
1) Traditional bases of jurisdiction; and
2) Long-arm Jurisdiction.

Question 10

B. Personal Jurisdiction (PJ)

Traditional Bases of Jurisdiction:

Answer 10

a) Domicile;
b) Presence in the state when served;
c) Consent; OR
d) Waiver (appearing in the action without
objecting).

*The above comports with Due Process requirements.

Question 11

B. Personal Jurisdiction (PJ)

Long Arm Jurisdiction

Answer 11

– To assert PJ over a non- resident:
1) The State must have a Long-Arm Statute; AND
2) Comply with Constitutional Due Process Requirements
a. D has sufficient minimum contacts with the forum state so as not to offend traditional notions of fair play and substantial justice.
i) **Prong 1 - Minimum Contacts **(contacts + relatedness) – Either:
a) General Jurisdiction – contacts so substantial and of such nature that D is essentially at home; OR
i. Individuals = domicile in state
ii. Corporations = where Corp. is
“at home” (usually where incorporated or headquartered).
b) Specific Jurisdiction – connection between forum state and underlying controversy AND lawsuit must relate/arise from D’s contact with the state.
i. Regularly occurring product sales in a state DOES NOT justify jurisdiction of a claim unrelated to those sales.

ii) Prong 2 - Fair Play & Substantial Justice (fairness) – Must be fair and reasonable for D to be sued in the forum state.

Question 12

C. Service of Process & Notice

Service of Process & Notice

Answer 12

Timing
– Summons & Complaint MUST be served on D within 90-days after filed with the court.
− Otherwise, the court must→
(a) dismiss the action without prejudice against that D; OR
(b) order that service be made within a specified period of time.

Process Server – Service may be made by any person who is:
(1) at least 18 years old, AND
(2) not a party to the action.

**Method of Service **
– The method of service must be consistent with Due Process
→reasonably calculated, to make the parties aware of the action, and give them an opportunity to object.
− Individual→may be served: (a) personally; (b) via someone of suitable age & discretion who resides at the individual’s current dwelling or usual place of abode; (c) via an agent (by appointment or by law); OR (d) in accordance with state law of the forum state or where service is made.
− Corporation, Partnership, or Association
→ may be served: (a) in accordance with state law of the forum state or where service is made; OR (b) to an officer or managing/general/authorized agent.
− Foreign Defendant→may be served via any manner NOT prohibited by international agreement.

Question 13

D. Venue

Proper Venue

Answer 13

– Venue is Proper in any district where:
a) any defendant resides (if all defendants are residents of the forum state);
b) a substantial portion of the claim occurred;
c) a substantial portion of the property is located;
OR
d) if none of the above, then where any defendant is subject to the court’s PJ.

*Proper venue is determined at the time the action was filed.

Question 14

D. Venue

Transfer of Venue:

Answer 14

If venue was proper when the case was filed, the court MAY transfer it if:

1) Needed for the convenience of the witnesses or in the interests of justice; AND
2) The case could have initially been brought in the receiving court (court has PJ and SMJ).

**If venue was improper **when the case was filed, the court MUST either:
a) Dismiss the case; OR
b) Transfer the case to a proper court if the
interests of justice require it.

Question 15

D. Venue

Forum Selection Clause

Answer 15

– Courts will enforce a forum- selection clause UNLESS special factors are present
(e.g. significant/unusual hardship, inequality of bargaining power).

Question 16

E. Law Applied by Federal Courts

State Law in Federal Court

Answer 16

Erie Doctrine
– Applies when a federal case is brought under diversity of citizenship jurisdiction.
− Federal courts will apply federal procedural law, BUT must apply the substantive law of the forum state in which it sits.

Substance vs. Procedure:
Procedural Law = civil procedure rules, burden of proof？？, and rebuttable presumptions.
Substantive Law = elements of a claim/defense, choice of law rules, statute of frauds, irrebuttable presumptions, statute of limitations & tolling rules, and preclusion law.

When Substantive Federal Law Applies – Federal law will apply for matters governed by the U.S. Constitution, laws passed by Congress, and valid federal law that preempts state law under the Supremacy Clause.

Question 17

F. Injunctions & TRO’s

Preliminary Injunction

Answer 17

– Maintains the status quo pending the outcome of an action.

May be issued only:
1) upon notice to the adverse party; AND
2) if the moving party gives security/bond (used to reimburse non-movant for injury caused by the injunction if the moving party is not successful on the merits).

Traditional 4 -Prong Test requires:
1) Likelihood of P’s success on the merits;
2) Likely threat of irreparable harm to the movant;
3) The harm alleged by movant outweighs any
harm to the non-moving party (balancing the
harm); AND
4) An injunction is in the public interest.

Question 18

F. Injunctions & TRO’s

Temporary Restraining Order (TRO)

Answer 18

– Is an emergency remedy used to maintain the status quo pending the outcome of a preliminary injunction application.
− To be issued, a movant must allege immediate and irreparable harm, and a court will analyze the same factors as a preliminary injunction.

Ex Parte TRO – Moving party MUST:
1) provide specific facts in a sworn statement
showing immediate and irreparable injury, loss, or that damage will result before an adverse party can be heard;
2) certify in writing any efforts made to give notice to the adverse party and why notice should not be required; AND
3) give security in an amount that the court deems proper.
*The United States, its officers, & its agencies are NOT required to give security.

If granted, an ex parte TRO automatically expires after 14 days, UNLESS:
(a) the court sets a shorter time- frame for automatic expiration;
(b) the court extends it for good cause; or
(c) the parties consent.
− The adverse party may move to dissolve or modify the TRO on 2-days’ notice.

Question 19

F. Injunctions & TRO’s

Permanent Injunction

Answer 19

– A party MUST show:
1) Irreparable injury;
2) Legal remedies are inadequate;
3) Balance of hardships favors the party seeking
the injunction; AND
4) Public interest is not harmed.
*May be issued only after a full trial on the merits.

Question 20

G. Pleadings

Claim for Relief

Answer 20

– A pleading must contain:
1) Grounds for court’s jurisdiction (unless court
already has it & no further support is needed);
2) The claim showing pleader is entitled to relief; AND
3) Demand for relief sought.

*Special/Heightened state-law pleading rules DO NOT apply in federal court.

Question 21

G. Pleadings

Responsive Pleading

Answer 21

– It must:
1) State defenses to each claim asserted; AND
2) Admit or deny the allegations asserted.

*An allegation is deemed admitted if:
(1) a responsive pleading is required; and (2) the allegation is not denied.
*Failure to plead an affirmative defense usually results in a waiver of that defense.

Question 22

G. Pleadings

Amendments to Pleadings

Answer 22

As of Right – allowed to amend once as a right within **21-days **after service of:
a) the original pleading; OR
b) a responsive pleading or pre-answer motion to the original pleading.
By Permission – in all other cases, an amendment is allowed:
a) with the opposing party’s written consent; OR
b) with leave of the court upon motion (should be freely granted when justice so requires).

Adding Affirmative Defenses – A party must set forth ALL affirmative defenses to the claim alleged.
− If a party fails to do so, the pleading MUST be amended.

Waived Defenses – If the following defenses are NOT included in the D’s first response (answer/ pre-answer motion), they are deemed waived:
(1) lack of PJ; (2) improper venue;
(3) insufficient process; and (4) insufficient service of process.
− BUT, courts have allowed adding waivable defenses to a MTD when: (1) promptly made; AND (2) it’s prior to a hearing on the original motion.

Relation Back Doctrine – When a Complaint is amended to add a:
New Claim→relates back to the date of the original filing so long as it arises out of the same transaction or occurrence as the original pleading allegations.
New Defendant→relates back so long as:
1) same transaction and occurrence;
2) new party received notice of the original action within 90 days of filing; AND
3) new party knew (or should have known) that the action would have been brought against it but for a mistake in the party’s identity.

Question 23

G. Pleadings

Counterclaims

Answer 23

– a claim against an opposing party.
Compulsory Counterclaim = a claim that: (1) arises out of the same transaction or occurrence; AND (2) does not require adding another party out of the court’s jurisdiction.
− MUST be stated in party’s pleading or it’s barred in future litigation.
** Permissive Counterclaim** = counterclaims that are not compulsory.

Same Transaction or Occurrence Factors – Courts analyze whether:
1) Issues of fact and law are largely the same;
2) Res judicata would bar a subsequent suit;
3) Substantially the same evidence supports or
refutes the claims; and
4) If there is any logical relation between the claim and counterclaim.
*The presence of any factor above supports that the claim arises out of the same transaction or occurrence.

Question 24

G. Pleadings

Cross-Claims

Answer 24

– A pleading may state a claim against a co-party (co-defendant) as a cross-claim,
BUT only if it arises out of the same transaction or occurrence as the original action or counterclaim.

Question 25

Rule 11 – Representations to the Court

Answer 25

All papers served in a litigation MUST be signed by an attorney of record (or by the party if unrepresented).

When presenting the papers to the court, the party certifies the following:
1) It is not being presented for any improper purpose;
2) The legal contentions are warranted and non- frivolous;
3) The factual contentions have evidentiary support or likely will after discovery; AND
4) denials of factual contentions are warranted or reasonably based on lack of information.

*NOTE: Rule 11 does not apply to discovery or discovery motions.

Question 26

Rule 11 – Sanctions Imposed

Answer 26

– The court may issue sanctions (by motion or on its own) for failure to comply with Rule 11

**Nature of Sanctions Imposed **
– are within the discretion of the court, and can be:
a) non-monetary directives;
b) pay a penalty; or
c) pay reasonable attorney’s fees/expenses
resulting from the violation.

Liability for Sanctions:
− Generally, a law firm is jointly responsible for a violation by its partner, associate, or employee.
− Monetary sanctions CANNOT be issued against a client for an unwarranted claim/defense/legal contention made by their attorney.

Question 27

Procedure for Filing a Rule 11 Sanctions Motion

Answer 27

A party CANNOT file a Rule 11 motion with the court without first:

1) serving the motion on the offending party; AND

2) giving the opponent 21 days to withdraw or correct the paper/pleading.

Question 28

I. Joinder of Parties & Claims

Permissive Joinder of Parties

Answer 28

– Multiple plaintiffs or defendants MAY be joined in one action if:
1) joint and several relief is asserted by them or the claim arises out of same transaction or occurrence;
2) a common question of law or fact exists; AND
3) SMJ is present for each claim.

Logical Relationship Test→all logically related events for a legal action are within the meaning of same transaction or occurrence.

Question 29

I. Joinder of Parties & Claims

Required Joinder of Parties

Answer 29

– A party MUST be joined if:
1) The party is necessary; AND
2) Joinder is feasible.
*The court must order that such a party be joined in the action.

Necessary Party – a party is necessary if:
a) The court cannot grant complete relief without the party;
b) The absent party claims an interest in the action that would be impaired or impeded; OR
c) The party’s absence creates a substantial risk of multiple liability or inconsistent obligations.

Feasibility – joinder is feasible if:
1) Joinder will not remove SMJ; AND
2) Court has PJ over the party.

If joinder is NOT feasible, the court will consider factors to decide whether to continue or dismiss the action:
▪ whether the party’s absence might prejudice any other party;
▪ whether prejudice can be lessened or avoided;
▪ whether an adequate judgment can be
rendered; and
▪ if plaintiff would have an adequate remedy if the case is dismissed.

Question 30

I. Joinder of Parties & Claims

Intervention in an Action

Answer 30

Intervention as of Right
– A court MUST permit a non-party to intervene in an action if it demonstrates:
1) That the application to intervene is timely;
2) An interest in the subject matter of the action;
3) That protection of this interest would be impaired; AND
4) Such interest is not adequately represented by existing parties in the action.

Permissive Intervention – A court MAY allow a non- party to intervene when the non-party:
1) Files a timely motion; AND
2) Either: a) Has a claim/defense that shares a common question of law or fact with the main action; OR b) Is given a conditional right to intervene by federal statute.

*The court must consider whether intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

Question 31

I. Joinder of Parties & Claims

Impleader (Third-Party Actions)

Answer 31

– D may bring a third- party into an action only if:
1) The third-party is or may be liable to D,
2) for all/part of the claim against D in the action.

*Claims merely arising out of the same transaction or occurrence are insufficient unless derivative liability exists (i.e. indemnification, contribution).

Commencement of a Third-Party Action
– Defendant (as a third-party plaintiff) must serve a Summons & Third-Party Complaint upon the third-party.
− Leave of the court is required if more than 14- days have passed since serving its Answer.

Question 32

I. Joinder of Parties & Claims

Class Actions

Answer 32

Requirements: A person is allowed to sue on behalf of a class when there is:
1) Numerosity – class is so numerus that joinder is impracticable;
2) Commonality – questions of law or fact are common to the class;
3) Typicality – the claims/defenses of representative parties are typical of the class; AND
4) Adequacy of Representation – the representative parties (incl. counsel) will fairly and adequately protect the interests of the class.

Class Certification: If the above are met, the class will be certified if:
a) Inconsistent/Dispositive Adjudications – separate actions would create a risk of (i) inconsistent adjudications or (ii) harm the interests of absent class members;
b) Declaratory/Injunctive Relief – the party opposing the class has acted/refused to act on grounds that apply generally to the class so that the grounds for declaratory/injunctive relief are appropriate to the whole class; OR
c) Predominance & Superiority – common questions of law or fact are predominant, and a class action is superior to other methods.

Question 33

J. Discovery

Discoverable Information

Answer 33

– A party may obtain all non-privileged info that is:
1) Relevant to any party’s claim or defense; AND
2) Proportional to the needs of the case.

*The info need not be admissible into evidence to be discoverable.
*Once a person reasonably anticipates litigation, that person has a duty to preserve ALL relevant evidence.

Question 34

J. Discovery

Depositions

Answer 34

– A party is permitted up to 10 depositions of any person/party, so long as the deposition is:
1) Is limited to 1 day of no more than 7 hours; AND
2) Proper notice is given (reasonable written
notice).

*A subpoena is NOT required to depose a party to the action.

Unless stipulated otherwise, a party MUST obtain leave of the court:
a) To take more than 10 depositions;
b) To depose a party again – if they had already been deposed in the action; OR
c) If it’s seeking a deposition prior to the Rule 26(f) meet and confer conference.

Question 35

J. Discovery

Electronically Stored Info (ESI)

Answer 35

Electronically Stored Info (ESI)
* – Includes emails, text messages, digital files, and meta-data.
* -When a party reasonably anticipates litigation, it must take reasonable steps to preserve ESI (e.g. suspend routine document retention/destruction policy, litigation hold).

Sanctions for Failure to Preserve ESI
– The court may sanction a party for failure to preserve ESI only if:
1) The ESI should have been preserved;
2) The party failed to take reasonable steps to preserve it; AND
3) The ESI cannot be replaced/restored through additional discovery.

If the above test is satisfied, the court may:
* Order measures no greater than necessary to cure any prejudice; OR
* If failure to preserve was intentional:
i. presume that the lost info was unfavorable;
ii. instruct the jury that it may or must
presume that the lost info was unfavorable;
iii. dismiss the action; or
iv. enter a default judgment.

Question 36

J. Discovery

Rule 26(g) – Discovery Disclosures & Sanctions

Answer 36

– All discovery papers served in a litigation MUST be signed by an attorney of record (or a party personally if unrepresented).

Certifications When Signing:
* − Signing any disclosure
→certifies that it’s complete and correct at the time made.
* − Signing any other discovery document
→certifies that it’s: (1) consistent with the FRCP and is not frivolous; (2) not being presented for an improper purpose; AND (3) not unreasonable, unduly burdensome, or unduly expensive.

Sanctions – The court may issue sanctions for failure to comply with Rule 26(g).
If a person violates the rule without substantial justification, the court MUST impose an appropriate sanction (i.e. pay reasonable expenses, incl. attorney’s fees, caused by the violation).

Question 37

J. Discovery

Rule 26(a) – Initial Disclosures

Answer 37

– Without request, each party MUST provide these initial disclosures to opposing parties within **14-days **after the Rule 26(f) “meet and confer” conference:
1) Contact info of individuals likely to have discoverable info, plus the info they likely possess;
2) Copy or description of all documents, ESI, & tangible things the party may use to support its claims/defenses (unless it will be used solely for impeachment);
3) Computation of each category of damages; AND
4) Any insurance agreement that may be liable to satisfy a judgment in the action.

*If a party fails to provide the above, that party is NOT allowed to use that witness/info on a motion, hearing, or trial UNLESS the failure was substantially justified or harmless.

Question 38

J. Discovery

Attorney Work Product Doctrine

Answer 38

– Protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation UNLESS:
1) A substantial need for the materials exists; AND
2) A substantial equivalent cannot be obtained without undue hardship.

Privilege Log – When a party claims protection, it must disclose the existence of the *material in sufficient detail *to enable other parties to asses the claim of privilege.

Question 39

K. Pretrial Conference & Order

Pretrial Conference

Answer 39

– The court may order the attorneys (and pro-se parties) to appear for a Pre-trial Conference to control the management/scheduling of the case.
− Attendance is MANDATORY.

Question 40

K. Pretrial Conference & Order

Scheduling Order

Answer 40

– The court will issue a Scheduling Order in most types of actions.
− The Scheduling Order may be modified only:
(1) for good cause; AND
(2) with the judge’s consent.

Question 41

K. Pretrial Conference & Order

Pretrial Conference Sanctions&Modification of Pretrial Conference Order

Answer 41

Pretrial Conference Sanctions – May be issued if a party:
(a) fails to appear;
(b) is substantially unprepared;
(c) does not participate in good faith; OR
(d) fails to obey a scheduling/pretrial order.

Sanctions include→
(a) prohibiting a party from supporting/opposing certain claims or defenses;
(b) striking all/part of the pleading;
(c) dismissing all/part of the action; OR
(d) a default judgment.

Modification of Pretrial Conference Order
– can only be modified by the court to prevent manifest injustice.

Question 42

L. Motions

Motion to Dismiss

Answer 42

Motion to Dismiss Standard
– Requires the court to:
(1) consider the facts in the light most favorable to the non-moving party; and
(2) determine if there is any basis upon which relief can be granted.
− The court DOES NOT evaluate the merits of the case.

Motion to Dismiss Grounds:
1) Lack of SMJ;
2) Lack of PJ;
3) Improper venue;
4) Insufficient process;
5) Insufficient service of process;
6) Failure to state a claim upon which relief can be granted;
7) Failure to join a necessary party.

*Grounds (2) through (5) are deemed waived if not raised in the first responsive pleading or pre-answer motion to dismiss.
*Ground (1) may be made at any time.

Question 43

L. Motions

Motion for Judgment on the Pleadings

Answer 43

– After Defendant answers, a motion on the above grounds is called a “Motion for Judgment on the Pleadings”.

Question 44

L. Motions

Summary Judgment (SJ) Motion

Answer 44

– A court will grant an SJ motion when:
1) There is no genuine issue of material fact; AND
2) Movant is entitled to judgment as a matter of law.
*The court MUST view the evidence in the light **most favorable to **the non-moving party.
− An SJ motion may be sought on the entire case or for certain issues (partial summary judgment).
− If a Motion to Dismiss (or Motion for Judgment on the Pleadings) presents matters outside the pleadings, the court may treat the motion as a SJ Motion.
这种转变意味着法院会更全面地审查案件，而不仅仅是基于诉状中提出的法律问题做决定。

Question 45

L. Motions

Motion for Judgment as a Matter of Law (JMOL)

Answer 45

(JMOL) – May be brought at any time before the case is submitted to the jury.

JMOL will be granted if:
1) The non-moving party has been fully heard on the issue during a jury trial; AND
2) The court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on that issue.

*The court MUST draw all reasonable inferences in the light most favorable to the non-moving party.

Renewal of JMOL Motion – A party may renew its JMOL motion only if it moved before the case was submitted to the jury.
− A renewed JMOL motion must be filed within 28 days of the entry of judgment.

Question 46

L. Motions

Motion for a New Trial

Answer 46

– Court may grant a new trial for any reason for which a new trial has been granted in federal court.
− Must be filed no later than 28 days after the entry of judgment.

Grounds for a New Trial:
a) Error at trial that makes judgment unfair;
b) New evidence surfaced that could not be
obtained with due diligence for the original trial;
c) Prejudicial misconduct of a party, attorney, third-party, or juror;
d) Judgment was against the weight of evidence;
OR
e) Verdict was excessive or inadequate.

Question 47

M. Verdicts and Judgments

Default Judgment

Answer 47

– A default judgment will have a preclusive effect if the court had jurisdiction (SMJ + PJ).
− States vary as to effect of preclusion a default judgment is given, BUT:
▪ A state court MUST give a judgment in a federal diversity action the same effect it would give a state court judgment.
▪ A default judgment bars a party from asserting compulsory counterclaims that could have been raised in the original action.

Question 48

Claim Preclusion & Issue Preclusion

Claim Preclusion (Res Judicata)

Answer 48

– precludes a party from subsequently relitigating any claim that was or could have been raised.

Elements – Claim Preclusion may be invoked when:
1) Parties are identical or in privity;
2) Prior judgment was rendered by a court of competent jurisdiction;
3) Final Judgment on the merits in the prior action;
AND
4) Same claim was involved in both actions (claim arises out of the same transaction or occurrence).

Privity – exists when the non-party has a legally recognized relationship with the original party and would be bound by a judgment against the original party.

Question 49

Claim Preclusion & Issue Preclusion

Issue Preclusion (Collateral Estoppel)

Answer 49

– precludes a party from attempting to retry an issue if there has been a final judgment on the merits by a court of competent jurisdiction.

Elements – Issue Preclusion may be invoked when:
1) Valid and final judgment was rendered in the first action;
2) Issue is identical to the issue decided in the prior action;
3) Issue was actually litigated, determined, and essential in the prior action; AND
4) Party against whom enforcement is sought had a full and fair opportunity to litigate the issue in the prior action.
*Generally, a non-party to a prior action MAY assert issue preclusion.

Question 50

O. Appeals

Final Judgment Rule

Answer 50

Final Judgment Rule – A federal appellate court can only hear an appeal from a final judgment on the merits (unless an exception applies).

Final Judgment / Decision is one which:
1) Ends the litigation on the merits (ALL claims are resolved); AND
2) Leaves nothing for the court to do but execute the judgment

Filing – an appeal MUST be filed within 30 days after entry of the judgment.

Question 51

O. Appeals

Final Judgment Rule Exceptions

Answer 51

EXCEPTIONS to Final Judgment Rule:
1) Rule 54(b) Exception
2) Statutory Exceptions
3) Certified Appeal Exception
4) Collateral Order Doctrine
5) Writs of Mandamus & Prohibition
6) Pendent Appellate Jurisdiction
7) Certification of Class Action

Rule 54(b) Exception – an immediate appeal is allowed when:
1) Action has multiple parties or multiple claims;
2) Court directs final judgment for some of the claims or parties; AND
3) Court expressly determines that there is no just reason for delay of an appeal.

Statutory Exceptions – can immediately appeal orders for: (i) injunctions, (ii) receiverships, (iii) possession of property, (iv) liability in an admiralty action, and (v) patent infringement orders that are final except for an accounting

Certified Appeal Exception
– an immediate appeal is allowed when:
1) A federal district court judge certifies certain grounds for immediate appeal; AND
2) The Court of Appeals agrees to permit the appeal.
*Application for the appeal must be made within 10 days after entry of the order..

Collateral Order Doctrine – allows an immediate appeal if the interlocutory order:
1) Conclusively determines the disputed question;
2) Resolves an important issue that is separate from the merits of the action; AND
3) Is effectively unreviewable on appeal from a final judgment.

Writs of Mandamus & Prohibition – allows an immediate appeal if there is an abuse of authority by a trial court.
− Issued only in exception circumstances.
− Cannot be used to correct an ordinary error.

Pendant Appellate Jurisdiction – A party may seek to have a non-final order reviewed along with another appealable order currently pending before the appellate court when:
a) A non-appealable decision is inextricably intertwined with an appealable decision; OR
b) Review of the non-appealable order is necessary to ensure a meaningful review of the appealable order.

Certification of Class Action – an order granting/denying class-action certification may be appealed when:
1) A petition for permission to appeal is filed within 14 days after entry of the order; AND
2) The Court of Appeals agrees to hear the appeal.