Civil Procedure

Question 1

Übersicht: Themen Civil Procedure

Answer 1

1. Jurisdiction
2. Venue
3. Service
4. Pleadings
5. Joinder of parties
6. Preclusion of re-litigation
7. DIscovery
8. Trial
9. Appeals

Question 2

Allgemein

Fristenberechnung

Answer 2

• weekends are counted as part of the time period
• if last day falls on a weekend of legal holiday, action may be taken on the next non-holiday weekday

Question 3

1. Jurisdiction

Ablauf Jurisdiction

Answer 3

1. Personal Jurisdiction
2. Subject-matter jurisdiction
3. Removal

Question 4

1. Jurisdiction

1. Personal Jurisdiction

Answer 4

A. Traditional bases: CDP
1. Consent (appearance, implied by presence)
2. Domicile
3. Presence (service in forum)

B. Statutory basis: a states statute gives jurisdcdtion over non-residents to constitutionally permissible extent, analyze below:

C. Constitutional basis: International Shoe “minimum contacts” test
1. Minimum contacts between defendant and forum state = purposeful availment to forum state + reasonable foreseeability of being haled into forum state court, e.g., working, receiving compensation, insb. eine der traditional bases!
2. Relatedness of Π’s claim to Δ’s contacts with forum
a) Specific jurisdiction arises when the cause of action is related to Δ’s contacts
b) General jurisdiction can arise even when cause of action is not related: Δ must have had “continuous and systematic contact” with forum such that Δ is “essentially at home” (domicile, state of incorporation, or principal place of business)
3. Fairness factors: Consider interests of
(1) Π in getting relief
(2) forum state in providing redress, and
(3) Δ in not being gravely inconvenienced

Question 5

1. Jurisdiction

2. Subject-matter jurisdiction

Answer 5

cannot be waived, lack of smj may be raised anytime, even on appeal
1. Federal-question jurisdiction
2. Diversity jurisdiction
3. Supplemental jurisdiction
4. Erie doctrine
5. Californian Subject-mater jurisdiction
.

Question 6

1. Jurisdiction: 2. Subject-matter jurisdiction

1. Federal-question jurisdiction

Answer 6

over plausible claims arising under Constitution, treaties, or U.S. laws (insb. Exclusively federal statutes involve patents and copyrights, antitrust, securities, bankruptcy, interstate commerce, civil rights (U.S. as a party in K or tort case, e.g., estate, enforce alimony)

Achtung: Π’s complaint must contain prima facie case. Insufficient to anticipate federal defense

Question 7

1. Jurisdiction: 2. Subject-matter jurisdiction

2. Diversity jurisdiction

Answer 7

1. Citizenship (state of domicile or permanent residence) is determined at the time of filing
   a) Resident’s domicile = physical presence + intent to remain there indefinitely
   b) Corporation’s domicile = state of incorporation and state of principal place of business (nerve center test > muscle test)
   c) Domicile must be genuine (OK even if done to create/destroy diversity jurisdiction)
2. Complete diversity of citizenship: No Π can be from the same state as any Δ (U.S. vs. foreign OK)
3. Amount in controversy (AIC): Must exceed 75k pled in good faith, excluding interest or costs
   - can aggregate by adding AICs from 2+ claims
   - can aggregate multiple Πs if they are enforcing a single right of common interest (class)
   - Jx not retroactively defeated by actual recovery < 75k.
   - AIC may include attorney fees

Question 8

1. Jurisdiction: 2. Subject-matter jurisdiction

3. Supplemental jurisdiction

Answer 8

• gives discretion to fed ct over additional claims (e.g., state claim) arising from a common nucleus of operative fact as the underlying claim that invoked federal subject-matter jx (FQJ/DJ)
• Cannot be used if Π is solely trying to avoid complete diversity requirement in fed court
• But can override AIC requirement, e.g., another Π joins with lower AIC w/o breaking diversity
• Fed ct may decline to exercise this discretion if claims are dismissed before trial (not on merits)

Question 9

1. Jurisdiction: 2. Subject-matter jurisdiction

4. Erie doctrine

Answer 9

Grds. a federal court must use state substantive law and federal procedural rules

P: was, wenn state law conflict with federal rule? Two-step approach
Step 1: Is there an “arguably procedural” federal rule on point (based on U.S. Constitution, statute, FRCP, FRE, case law, etc.)? If so, federal procedure law applies.
If not…
Step 2: Is the issue integral to substantive rights/obligations (that determines outcome)? If so, apply state law.
If not, balance state & federal interests + consider likelihood of different outcome under federal law (if so, state law).

Question 10

1. Jurisdiction: 2. Subject-matter jurisdiction

5. Californian Subject-matter jurisdiction

Answer 10

a) Unlimited civil cases: AIC > $25k; full range of pleadings, motions, discovery, relief available

b) Limited civil cases: AIC ≤ $25k; limited to equitable claims, declaratory relief, ancillary relief

c) Small claims: AIC ≤ $10k (individual) / $5k (others), pro se only, only 2/yr for $2,500+

Reclassification:
Unlimited to limited requires recovery > $25k that is “virtually unobtainable
Limited to unlimited if there is a “possibility” that verdict > $25k
Π’s amended complaint or a cross-complaint changes AIC to ≤ $25k or > $25k

Question 11

1. Jurisdiction: 3. Removal

Removal & Remand

Answer 11

Grds. Only Δ can remove a case originally filed in state court to federal court if the case could have been brought by Π in federal court, that is, if there is SMJ (check whether there is FQJ or DJ; PJ is irrelevant)
- Removal must be made within 30 days of Δ receiving notice (service of complaint, pleading)
- When a new Δ joins the case, that Δ has another 30 days to remove the action with other Δs
- For case based solely on diversity: , removal allowed only if no Δ is a citizen of forum state where suit filed
- No removal based on diversity after 1 year after brought in state court, unless Π acted in bad faith
-If a case has a claim that would arise under federal law (at least one claim with FQJ) and also a state-law claim that does not invoke DJ or supp jx, case may still be removed to fed court. Fed court must “sever and remand” state-law claims to state court, and Δs with federal claim asserted against them must join removal

REMAND: **If Π thinks the case should not be removed, Π may move to send case back to state court **
1. Mandatory: If removal was improper (no federal jx), judge must remand back to the state court
- Π’s motion for remand must be made win 30 days from removal notice
- If there is a lack of SMJ, Π may move to remand at any time
2. Discretionary: Judge has discretion to remand back to state court if all federal claims have been resolved or federal trial would be unwise

Question 12

2. Venue

Federal courts: venue = welcher district?

Answer 12

plaintiff’s choice of forum is appropriate in any federal district wo
a) any defendant “resides” (domiciled, or where corporations are subject to PJ via minimum contacts), provided that ALL Δs are located in the same STATE OR where a substantial part of the claim arose or a substantial part of the property that is the subject of the action is
b) If above are unavailable, any district where any Δ is subject to PJ (could end up being anywhere in a state)
c) Consent or waiver by failing to object also creates proper venue

Question 13

1. Venue

Federal courts: transfer to another federal court? (grds. erlaubt, weil venue nur matter of convenience, anders als jurisdiction)

Answer 13

A. auf Verlangen des defendant nur wenn
a) where case could have been brought in the first place (SMJ exists, PJ exists over Δs, and venue is proper) or
b) if all pts agree (even if venue ordinarily would not be proper)

B. durch Gericht selbst
a) If original venue is improper, court MUST transfer, or dismiss (12(b)(3) MTD for improper venue)
b) If original venue is proper, court MAY transfer in the “interest of justice” (convenience, evidence location)

C. Abgrenzung: Forum non conveniens (FNC): PJ and venue are both ok,
But there is a much better place to litigate, and Transfer is not possible
Bsp. A state or federal court have PJ and venue, but the more convenient court is in another country. A state court has PJ and venue, but the more convenient court is in another state.

Vorauss. original venue is inconvenient + adequate alternative forum with proper jx exists

Ergo: Transfer = innerhalb derselben jurisdiction? FNC = in andere jx?

Question 14

2. Venue

CA state courts: venue = welcher county?

Answer 14

a) For local actions (disputes over real property), the property is located

b) For transitory actions (claim arose anywhere), any county Δ resides when action begins. If no Δ resides in
CA, venue is proper in any county
In addition…
(1) For contract cases, the county where the contract was executed or performed
(2) For tort cases (personal injury or wrongful death), the county where the harm occurred

c) For mixed actions (may be in multiple venues), any Δ resides, unless compelling reason to go elsewhere

Question 15

2. Venue

CA state courts: venue transfer

Answer 15

allowed if
A. improper venue

B. proper venue but
a) fair trial cannot be had in original county
b) more convenient for witnesses and justice requires it or
c) no judge is qualified to act

C. FNC: If the action should be held outside the state in the interest of substantial justice + alternative forum is suitable (e.g., Δ subject to PJ there), then ct may stay/dismiss the action in whole or in part (usually stayed)

Question 16

3. Service

Service (quasi Zustellung)

Answer 16

1. Process server vorhanden?
2. Wer kann ansonsten server sein? any non-party over age 18
3. Was wird geserved? summons & complaint
4. Wie wird geserved?
   a) by personal service to defendant or authorized agent oder
   b) substituted service: Leave summons and complaint at Δ’s usual place of abode with a suitable age and discretion, or Δ’s agent (aber: CA requires follow-up mailing)
   c) state law’s method (CA service by publication)
   d) waiver by mail (Π may request that Δ waive service. Service waived if Δ returns waiver within 30. Time to answer (normally 21 from service) extends to 60 after request filed. [CA] Waiver does not extend time to answer
   e) in foreign countries: alternate methods reasonable calculated to give notice to defendant (e.g. evtl. manchmal nur über E-Mail)

5. Time limit for service: If Δ is not served within 90 days after complaint is filed, court must a) dismiss the action or b) order that service be made within a specified time. EXCEPTIONS: Π’s good cause, e.g. Service in foreign country.

Achtung: Δ served with process while voluntarily in the forum state is subject to PJ there even without consent to it

Question 17

4. Pleadings

Process

Answer 17

1. Π files complaint
2. Δ must answer within 21 days of service
3. if ordered, Π must reply within 21 days
4. Δ may file a pre-answer motion
   - If motion denied, Δ has 14 days from court notice to answer
5. [CA] Δ has 30 days from service to answer. If Δ instead files a demurrer or motion to strike that the court
   overrules, must answer in 10 days of ruling

Question 18

4. Pleadings

Inhalt des complaints (auch für cross-claims, 3p claims, counterclaims)

Answer 18

Grds. notice pleading: that puts defendant on notice of enough facts to raise a plausible claim, plausibly suggesting entitlement to relief, not merely conceivable

Ausn. 1: Heightened pleading: Must plead with particularity if Π claims fraud, mistake, special damages (not reasonably anticipated for the type of claim asserted), or conditions precedent not being satisfied

Ausn. 2: [CA] Fact (code) pleading: basis of claim and relief in more detail than notice pleading. Δ must answer within 30 days. Pleader must state the “ultimate facts” supporting prima facie cause of action (no “conclusions” and not too detailed to be considered “evidence”).

Ausn. 3: [CA] Doe defendants: Δ can be sued under a fictitious “Doe” designation if original complaint is timely filed against all Δs (including Does) + Π’s genuine ignorance of Doe’s identity is pleaded, dann: Π has 3 years from filing of complaint to identify and serve Does with amended complaint

Question 19

4. Pleadings

Inhalt der Antwort von defendant

Answer 19

• Δ’s answer must specifically deny/admit each assertion or generally deny w/ specific admission. No denial = admit
• Δ’s answer may include a counterclaim ([CA] “cross-complaint”)
  a) Compulsory: If Δ’s claim arises from same transaction or occurrence as Π’s, it must be pleaded or else barred
  b) Permissive: Any other claim Δ has may be asserted

Achtung: crossclaim kann, wenn aus gleicher transaction/occurrence wie plaitniff stammt, sich auch gegen Dritten bzw. coparty richten, dann muss dieser wieder any compulsory claim against crossclaimant erheben

Question 20

4. Pleadings

Joinder of claims

Answer 20

FRCP 18: A pt may join as many claims in a single action as the pt has against an opposing pt

Question 21

4. Pleadings

Amendments to pleadings

Answer 21

A party may amend:
a) w/in 21 days of service before a responsive pleading (not motion), or
b) if pleading requires a response, 21 days after responsive pleading/pre-answer motion
c) May also amend w/ leave of ct or other party’s written consent
d) Implied consent bei unpleaded issues that were actually litigated

RF:
1.Other party has 14 days to respond or remaining response time for original pleading
2. Relation back: Amended pleading with new claims or defenses relates back to original pleading date, only if new claim or defense arose from the same transaction or occurrence as original

Question 22

4. Pleadings

Motion to dismiss (MTD)

Answer 22

wenn 12(b)(#)FRCP objections vorliegen:
1. lack of subject-matter jurisdiction;
2. lack of personal jurisdiction;
3. improper venue;
4. insufficient process (defect in summons form);
5. insufficient service of process;
6. failure to state a claim upon which relief can be granted (= general demurrer vor CA courts)
7. failure to join a party under Rule 19.

Achtung:
2.-5. müssen in first response (answer or pre-answer MTD) geltend gemacht werden, sonst gelten sie als gewaived!
1., 6.-7. können nicht gewaived werden und müssen deshalb auch nicht in der first response benannt werden

Question 23

4. Pleadings

CA Besonderheit 1: Demurrers

Answer 23

a) General demurrers: failure to state facts sufficient for a claim, lack of SMJ
b) Special demurrers: pleading is ambiguous, lack of legal capacity to sue, misjoinder of parties

insgesamt auf CA State Court Ebene wohl das Pendant zu MTD auf Federal Court Ebene

Question 24

4. Pleadings

CA Besonderheit 2: Motion to quash (MTQ)

Answer 24

to assert (a) lack of PJ, (b) improper process and/or (c) improper
service of process must be made at special appearance (sole purpose is MTQ)—or waived

Question 25

4. Pleadings

Motoin for Summary judgement

Answer 25

FRCP 12(d)

Question 26

4. Pleadings

Sanctions for improper paper

Answer 26

FRCP 11:
1. By court’s initiative, ct enters an order to show cause why sanctions should not be imposed, or
2. Other pt motions for sanctions. If not withdrawn/corrected by pt w/in 21 days, may file motion w/ ct
3. Law firms are jointly liable for employees; sanctions go to attorney, not the represented party

Question 27

4. Pleadings

Judgment on the pleadings

Answer 27

FRCP 12(c)):
allows a party to move, after pleadings are closed but early enough not to delay trial (no other timing reqs.), to decide the case solely on pleadings w/o going to trial

Question 28

4. Pleadings

Summary judgement vs. Judgement on the pleadings

Answer 28

Judgment on the pleading: “read the complaint and answer, Judge! If you just read them and consider nothing else, it’s obvious that my side wins!”
dadurch quasi ähnlich wie eine MTD

much more common MSJ: “look at the record (including affidavist, depositions, admissions and stuff like that), your honor! If you really think about it, the two sides agree on all the relevant facts. And with all the facts from the record we’re in agreement with, the law says I have to win.”
hier quasi nur keine mündliche Verhandlung benötigt (?)

Question 29

4. Pleadings

CA: Anti-SLAPP

Answer 29

SLAPP = Strategic Lawsuit Against Public Participation
Ziel: mechanismto defendants to strike potentially meritless causes of action early in litigation while obtaining a mandatory fee award (und discovery verhindern?)

1. File w/in 60 days of the SLAPP complaint. Anti-SLAPP motion to strike stays all discovery
   a) Δ first has burden to show prima facie case that Π’s cause of action arises based on an act in furtherance of Δ’s A1 rights in connection with “public interest” or at a “public forum”
   b) Burden shifts to Π to establish a probability of prevailing on the merits (going to the jury)
2. SLAPPback motion: Δ who wins on anti-SLAPP motion may assert malicious prosecution by Π

Question 30

5. Joinder of Parties

Mehrere Parteien: Unterscheide

Answer 30

1. Compulsory, FRCP 19: indispensable party who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction must be joined as a party if a) court cannot grant complete relief to existing parties without that party or b) his interests may be impaired or impeded if the case proceeds without joining him

2. Permissive FRCP 20: Parties may join as plaintiffs or defendants only if (1) a claim is made by each Π and against each
Δ relating to arising out of the same series of occurrences or transactions und (2) question of fact or law common to all the parties

3. Class Actions: siehe dort

Question 31

5. Joinder of parties

Class Action Federal

Answer 31

proper if: CANT + P/ER/CQ
Commonality: Q of law or fact in common to class.
Adequacy of representation: Class rep will fairly and adequately represent class (interests align).
Numerosity: Too many class members for practicable joinder. Typicality: Representative’s claims/defenses typical of those of the class.
Plus one:
Prejudice: Separate actions would create a risk of inconsistent results or impair interests of unnamed parties
Equitable relief: Injunctive or declaratory relief is appropriate for the class as a whole
Common Q predominates: Common Q of law or fact predominate over individual issues, and a class action is superior to alternative methods of adjudication. This requires notice to all members and option to opt out.

Achtung: Class actions require personal jurisdiction over each of the Δs named in the action (no requirement for Πs)

Question 32

4. Joinder of parties

Class Action CA

Answer 32

1. when Q is of common or general interest, of many persons, or numerous pts
2. impracticable to bring all before the court
3. Requires (1) ascertainable class and (2) well-defined community of interest among class members (factors: predominate common Q of law or fact, substantial benefit to pts and ct, adequate rep of interest)

Question 33

5. Joinder of parties

Class Action Fairness Act (CAFA)

Answer 33

Ziel: forum shopping vemeiden einerseits und mehr bessere Rechtsprechung durch verstärkten Einsatz von federal courts andererseits

SMJ is established (and therefore federal court einschlägig):
1. if minimum diversity (any class member diverse from any Δ, nur einer! muss sich unterscheiden)
2. aggregate AIC > $5M
3. 100+ members in proposed class.
4. RF: Any Δ may remove case from state to fed ct
i
EXCEPTIONS: All primary Δs are states, state officials, gov’t entities; action solely relates to corporate affairs and is based on laws of state of incorporation; or action solely relates to federal securities laws

Question 34

5. Joinder of parties

Sonderfälle: Impleader vs. Interpleader vs. Intervener

Answer 34

Impleader: some third party needs to be brought into the case, so a current party moves to implead them.

e.g. B rear ended A, who then rear ended C. C sues A and not B. If A is found liable and has to pay damages, B could be liable to A for those damages. So A impleads B, making the claim that B should be liable too. oder: P homeowner sues D contractor over a bad driveway job. D says, “this job is bad because the concrete was bad, T concrete supplier should be part of this.” D moves to implead T.

Interpleader: There’s a stakeholder who has no interest in the outcome facing claims from multiple parties, so they interplead the parties, forcing them to make claims against one another.

e.g. There are multiple claims on one person’s life insurance. The insurance company is going to pay, they have no interest in the outcome, they just need to know who to pay. Insurance company interpleads the claimants and the court will figure out who gets the insurance.

INTERVENEr = a non-party wants to be joined to original claim already brought

Question 35

6. Preclusion of Re-litigation

Unterscheide

Answer 35

a) Res judicata (claim preclusion): prevents re-litigation of any part of a cause of action that has been adjudicated on its merits or could have been raised, that arises from the same transaction or occurrence between same parties/privies, aber does not bar an unforeseeable subsequent claim (e.g., cancer resulting from a product liability claim)

[CA] “Primary rights” jurisdiction (traditional): A “cause of action” is based on definable rights (e.g., car collision may give rise to two claims based on personal injuries and property damage)
e.g. if you sue someone because they hit your car for damages to the car, you can later sue for your personal injuries as well and NOT be claim precluded because they are two different primary rights (property damage vs. personal injury). Federal, it WOULD be claim precluded because they’re from the same transaction/occurren

vs.

b) Collateral estoppel (issue preclusion): prevents re-litigation of and asserts the effect of a particular issue that is effectively identical as the previous one, even if the parties are different (!) if it was actually litigated b/w same parties/privies and decided, and the resolution of that issue was essential (non-collateral) to the judgment.

Question 36

7. Discovery

Standard and Scope

Answer 36

Grds. A party may seek to obtain any non-privileged matter that is relevant to a claim or defense of any party and proportional to the needs of the case (considering importance of issues, AIC, parties’ access to relevant information, parties’ resources, importance of discovery in resolving issues, burden/expense vs. likely benefit). Information sought need not be admissible at trial (!) to be discoverable as long as it is reasonably calculated to lead to the discovery of admissible evidence

[CA] Information must be “relevant to the subject matter involved in the pending action” (broader than fed)

Electronically stored information (ESI): Responding pt need not produce if not reasonable b/c of burden or cost. Must show this to ct upon motion to compel. Ct may still order for cause w/ cost-shifting conditions

Question 37

7. Discovery

Automatic disclosure requirement

Answer 37

FRCP 26(a):
Without being requested, parties must disclose certain information “then reasonably available” to other parties. The court may preclude a party who violates this obligation from using the information or witness at trial. Required disclosure:
a) Initial disclosures (w/in 14 of Rule 26(f) conference): Names and contact info of individuals likely to have discoverable information, evidence for claims or defenses, computation of damages, insurance agreements
b) Expert testimony (90 before trial): Identity of experts expected at trial, qualifications, opinions + their basis
c) Pretrial disclosures (30 before trial): Info about evidence to be used (docs, trial and deposition witnesses)

CA: hat keine!

Question 38

7. Discovery

Work product doctrine

Answer 38

Grds. in anticipation of litigation or trial is discoverable only upon showing substantial need, cannot obtain substantial equivalent without undue hardship. Mental impressions, conclusions, opinions are usually protected

[CA] noch strenger (?) : Absolute protection in writings reflecting mental impressions, conclusions, opinions, legal research, To seek qualified work product (by non-attorney, e.g., experts), must show unfair prejudice or injustice, Other party may assert right to privacy, which will be balanced vs. need for discovery

Question 39

7. Discovery

Privilege

Answer 39

Confidential comm b/w expert & counsel is privileged, except compensation info or facts given to expert, Pt withholding info believed to be privileged must make claim expressly and describe its nature to other pt

Question 40

7. Discovery

Duty to supplement

Answer 40

Grds. If disclosed information was materially incomplete or incorrect, and other party does not know

[CA] : No such duty unless further discovery is requested

Question 41

7. Discovery

Pretrial conferences

Answer 41

Rule 26(f) conference): Parties must “meet and confer” at least 21 days before a scheduling conference to plan discovery and initial disclosures and to consider claims, defenses, settlement, deadlines

[CA] : Court must hold initial case management conference w/in 180 days of complaint

Question 42

7. Discovery

Discovery devices

Answer 42

a) interrogatories (up to 25, including subparts)
b) requests for admissions
c) requests for production,
d) depositions (of anyone, up to 10 per side, once per person—unless ct order or pt stipulation, Achtung: objection to a deposition notice, deposition officer’s qualification, or taking of a deposition (e.g., form of oral or written question, or competence, relevance, materiality of testimony) is waived if it is not made at the deposition
e) motions to compel,
f) subpoenas duces tecum (documents from parties and non-parties),
g) subpoenas (to produce non-pts w/in 100 miles of
where person lives or works, may reimbursed cost of attending if requesting pt absent)
h) physical or mental examinations by “suitably licensed or certified examiner” by ct order only for good cause, when pt’s condition is in
controversy (examined pt may request copy of exam, which waives privilege regarding condition)
i) electronically stored info (ESI): Requesting pt may specify form of production; responding pt must use that form unless objected to. If form not specified, may use any form the ESI is ordinarily maintained in or reasonably usable by other pt

Question 43

8. Trial

Arbitration (= out of court dispute resolution)

Answer 43

Agreement to submit to arbitration is enforceable under Federal Arbitration Act, preempts state law

Question 44

8. Trial

Offer of judgment

Answer 44

14 before trial, Δ may offer a judgment against it on specified terms (settle)

If Π rejects offer and gets a less favorable judgment, Π must pay costs (incl. any atty fees under statute) incurred after offer was made

Question 45

8. Trial

Default judgment

Answer 45

Π may seek default judgment if Δ fails to defend (e.g., no response to complaint or action by Δ)

a) Involuntary dismissal: Against Π, by Δ or ct motion, for failing to pursue or comply w/ FRCP or ct order
b) Voluntary dismissal: Π may give up the case by filing a notice before Δ’s answer or motion for summary judgment, or by leave of court

Question 46

8. Trial

Jury trial (7th amendment): wann?

Answer 46

Party who seeks jury trial must file demand w/ court and serve pts w/in 14 days of service of last pleading directed to jury-triable issues of fact ([CA] w/in 5 of case notice). Demand may be withdrawn if all parties consent. No demand w/in 14 of pleading waives right to jury trial. Ct may still order trial if waiver was unintentional

a) If legal claims (seeking damages) are asserted, other party cannot be denied a jury on the damages issues
b) If legal + equitable claims in one action, legal claim should be tried first to jury, then equitable claim to ct
c) If fed diversity suit, jury trial must be permitted even if state ct would deny a jury (7A > state law per Erie)

Question 47

8. Trial

Jury trial (7th amendment): Zusammensetzung

Answer 47

-Size: 6-12 jurors. May have fewer than 6 jurors if parties agree ([CA] 12 unless parties agree to fewer)

• Juror may be excused for good cause (e.g., illness) w/o mistrial, as long as 6+ participate in verdict
• Selection:
  a) Venire of potential jurors, reasonable cross-section of community.
  b) Voir dire to ask about juror’s potential bias in case. Unlimited # of jurors with bias (deliberate lie or unlikely to be impartial) may be
  challenged (excused) for cause. 3 peremptory challenges (for any reason, except race or gender) per party
• Pt may file proposed instructions at close of case. If not filed or objected to before deliberation, waived
• Verdict must be unanimous (einstimmig) unless parties agree otherwise

Question 48

8. Trial

Summary judgment

Answer 48

shall be granted if, from the pleadings, affidavits, and discovery materials on file (not merely allegations or denials) viewed in light most favorable to nonmoving party (NMP), the moving party shows that no
genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law

• Timing: Any party may move any time until 30 days after close of discovery ([CA] after 60 days since general appearance of NMP or before based on good cause, at least 75 days before hearing)
• If evidentiary material presented in a 12(b)(6) MTD, treat as motion for summary judgment (FRCP 12(d))
• Moving party has burden to show prima facie case; burden shifts to NMP to show genuine issue of fact

Question 49

8. Trial

Judgment as a matter of law

Answer 49

(JMOL/directed verdict = [CA] nonsuit motion): may be granted to moving party if nonmoving party (NMP) has been fully heard on an issue, and a reasonable jury would not find for NMP on that issue, from evidence viewed in light most favorable to NMP

• Timing: May move after NMP has been fully heard and before submission of case to jury: Δ may move
  after Π closes case/rebuttal or after Δ closes case. Π may move after Δ closes case

Question 50

8. Trial

Summary judgment vs. judgment as a matter of law

Answer 50

Summary judgment: pre-trial motion
judgment as a matter of law: in-trial/post-trial after both parties had chance to present the case

Question 51

8. Trial

Post-trial motion 1: Renewed motion for JMOL

Answer 51

(JNOV/judgment notwithstanding the verdict): 2nd chance at JMOL raising only those issues raised in original JMOL. Must be filed w/in 28 days of judgment (assuming a motion for JMOL made before)

[CA] No requirement to have brought a motion for directed verdict (JMOL). Must file w/in 15 of judgment

Question 52

8. Trial

Post-trial motion 2: Motion for new trial (de novo)

Answer 52

Must be filed w/in 28 days ([CA] 15) of judgment.

Ct may order new trial on its own (e.g. error during trial; jury misconduct; newly discoveredevidence unable to be discovered
earlier by reasonable diligence; unfair (prejudicial, not harmless error) accident or surprise during trial; insufficient evidence to justify verdict; verdict against law; error in law; excessive/inadequate damages
insb.
a) Remittitur (reduced award): Judge offers new trial or lower award if he believes jury’s compensatory dmgs are so excessive as to “shock the conscience” (or in diversity case, meets state standard for excessiveness)
b) Additur (higher award): N/A in federal ct. But if judge believes dmgs too low, may be basis for new trial

Question 53

8. Trial

Post-trial motion 3: Motion to alter or amend (reconsider) a final judgment

Answer 53

based on new evidence, change in law, clear error of law or
fact, or to prevent injustice must be brought w/in 28 days of order. Otherwise, seek relief from judgment or appeal

Question 54

8. Trial

Post-trial motion 4: Motion for relief from judgment

Answer 54

based on mistake, fraud, misconduct must be filed w/in reasonable time up to 1 yr

Question 55

8. Trial

Enforcement of judgments?

Answer 55

Grds. sofort

Aber: Automatic stay of judgment: Judgments are not enforceable for 30 days after entry (except injunctions), außerdem: Ct may in its discretion stay execution of judgment while post-trial motion is pending, for security of opposing pt

Question 56

9. appeals

Prüfung

Answer 56

1. Timing: 30 days (CA 60 days) of final judgment or order based on timely JNOV, imemr 60 days if U.S. is party to the action

2. Gegenstand des reviews: only final orders and final judgments of entire case on its merits, interlocutory orders grds. nicht, Ausn. s.u.

3. Standards of review bzw. Fehler:
(1) Matters of law – de novo review (appellate court’s judgment substitutes trial judge’s), e.g. Includes when damages excessive o. jury instr. that put burden of proof on wrong pt
(2) Findings of fact non-jury: – not disturbed unless clearly erroneous. Findings of fact Jury: appeal court affirms unless reasonable persons could not have made that finding
(3) Mixed questions of law and fact – de novo review / clearly erroneous review if factual issues predominate
(4) Discretionary matters (rulings in trial judge’s discretion, e.g., leave to amend) – abuse of discretion

Question 57

9. Appeals

Ausnahmen wann Interlocutory orders doch reviewed werden können

Answer 57

1. Interlocutory orders reviewable as of right, including injunctions, appointments of receivers, orders affecting possession of property, and certain federal cases (admiralty, patent infringement)

2. Collateral orders: A federal appeals court can review a final order on a claim or issue that is separable and distinct (collateral) from merits of main suit and is too important to require deferring appellate review, or if effectively unreviewable on appeal from a final judgment (disposition of that order affects rest of action)

(e.g. Lack of SMJ. If not allowed to appeal district ct’s ruling, effectively unreviewable until final judgment. It would waste judicial resources if Π waited for final judgment to raise the issue)

3. Interlocutory Appeals Act: Review is discretionary and available based on trial judge’s certification. Appealing party must file petition within 10 days of an interlocutory order, with a certification

4. Partial judgment: Trial court may enter a final order as to some of multiple claims or parties in an action. This order is appealable only on express determination that there was no just reason for delay of judgment

5. Certification of class actions: Trial court’s grant/denial may be appealed within 14 days of order, discretionary review