Civil Procedure Flashcards

Question

**CIVIL PROCEDURE** - 6-Multiple Parties & Claims - D-Joinder of Claims - 1-Permissive Joinder [18] **1. How many claims may a plaintiff bring?**

Answer 1

**1. P CAN ONLY JOIN CLAIMS IF SMJ OR COMMON NUCLEUS** - P may bring as many claims as P has, so long as there is SMJ, or it arises under a common nucleus of a claim that has SMJ

Answer 2

**1. 3RD PARTY IMPLEADER REQUIRES COMMON NUCLEUS OF OPERATIVE FACT** - a court may exercise SMJ of a 3rd party claim that arises from a common nuclues of operative fact **2. IMPLEADER REQUIRES EXPLANATION OF TPD'S LIABILITY TO D IF P WINS** - a 3rd party impleader complaint must explain how TPD will be liable to D (TPP) if P wins the case; indemnification if TPD is liable to D, eg. D is a contractor and TPD is the subcontractor; contribution if D shares responsibility with TPD, eg, jointly and severally liable for injury to P

Answer 3

**1. SMJ GENERALLY** - class representative Ps are diverse from Ds and 1 P meets $75K+ AIC **2. SMJ CAFA** - 100+ members, $5M+ AIC aggregates, and any P is diverse from any D (minimum diversity); not primarily against a government entity; not regarding certain securities or corporations

Answer 4

**1. PRIVILEGED ATTORNEY-CLIENT COMMUNICATIONS AREN'T DISCOVERABLE** - attorney-client communications for legal assistance have absolute privilege and are not discoverable

Answer 5

**1. INTERROGATORIES CAN'T GO TO NONPARTIES** - only parties to the action may be served with interrogatories

Answer 6

**1. NO GENUINE DISPUTE AS TO ANY MATERIAL FACT** - the standard to grant an MSJ is that there is no genuine dispute as to any material fact, wherein no reasonable jury could decide for the other party **2. MOST FAVORABLE LIGHT OF OTHER PARTY** - the court must construe all evidence in the light most favorable to an opposing party **3. GRANT APPEALABLE BUT DENIAL NOT** - if a court grants an MSJ, this is considered a decision on the merits and it's immediately appealable; a denial is not a final determination, so is not appealable **4. 30 DAYS AFTER DISCOVERY** - deadline for MSJ is 30 days after discovery closes; can be filed any time before then

Answer 7

**1. JURY DECIDES LEGAL ISSUES & JUDGE DECIDES EQUITABLE ISSUES** - if a case involves legal issues, then a jury trial will be granted, but for only equitable claims, the judge decides the issues, so a demand for a jury will be denied

Answer 8

**1. JURY DEMAND DEADLINE IS 14 DAYS AFTER ANSWER** - must demand a jury trial within 14 days of last pleading, which is generally the answer

Answer 9

**1. JURY VERDICT ERROR CAN BE RECONSIDERED OR NEW TRIAL ORDERED** - if the court finds the jury failed to follow instructions causing an erroneous verdict, the court may (1) set it aside and ask the jury to reconsider or (2) order a new trial

Answer 10

**1. NEW TRIAL IF JUROR MATERIAL LIE BASIS FOR CHALLENGE FOR CAUSE** - if a juror lied in voir dire about a material matter that would have been a basis for a challenge for cause, the court may order a new trial

Answer 11

**1. JMOL DURING TRIAL THAT REASONABLE COULD NOT FIND FOR OTHER PARTY** - a JMOL that a reasonable jury could not find for the other party is made during trial after the other party has presented their case

Answer 12

**1. JNOV IS ONLY AVAILABLE IF JMOL WAS FILED** - a JNOV is a renewed JMOL, so if a party did not file a JMOL during trial, they may not file a JNOV after trial **2. JNOV DEADLINE IS 28 DAYS AFTER JUDGMENT** - a JNOV must be filed within 28 days after entry of judgment

Answer 13

**1. JURY VERDICT = SUBSTANTIAL EVIDENCE TEST** - the standard of review for jury verdicts is the substantial error test: whether the verdict is supported by substantial evidence, even if against the weight of evidence; more defferance than judge **2. JUDGE FINDINGS OF FACT = CLEAR ERROR TEST** - the standard of review for judge findings of fact in a bench trial is the clear error test: whether the findings are clearly erroneous wherein there is a firm conviction a mistake was made; less deference than jury **3. JUDGE FINDINGS OF LAW = DE NOVO TEST** - the standard of review for judge findings of law for judgments (eg, MSJ, JMOL, JNOV) is the de novo test: de novo review of the trial record without deference to the judge findings **4. JUDGE DISCRETION = CLEAR ABUSE & HARMLESS ERROR TESTS** - the standard of review for judge discretionary findings is (1)clear abuse test; (2) harmless error test: whether the error was prejudicial, ie, aeffected substantial rights

Answer 14

**Due Process** requires that ***reasonable efforts to provide notice*** be made with regard to persons whose interests are to be determined. The **method** of giving notice must have a ***reasonable prospect of giving actual notice***, ie, a means that one desirous of actually informing the absentee might reasonably adopt to accomplish it.

Answer 15

Err on the side of professional capacity. An accounting for failing to to correctly distribute the trust = professional capacity Fraud = personally If on a personal vacation, then can't be served as a rep

Answer 16

If a case is removed, then possibly remanded, if one of the claims doesn't have SMJ, that claim has to be remanded, while the ones with SMJ need not be ★ If a remand question, look for SMJ

Answer 17

One party's attorney personally may serve a lawsuit on another party as the attorney is not a party to the action

Answer 18

For a hearing on a default judgment on a party who has appeared but not answered, ***7 days*** notice is required

Answer 19

A lawsuit must be served within ***90 days*** of filing The deadline to serve be extended upon a showing of ***good cause***, which is typically something beyond the party's control

Answer 20

If a state's long arm statute doesn't allow a court in another state to enforce a judgement against its citizens, then there can be no PJ over the out-of-state person ★ This would end the PJ minimum contacts analysis as a state long arm statute that allows PJ is required

Answer 21

If state law doesn't follow the relation back doctrine, it would not apply in federal courts FRCP 15(c)(1)(A) specifically provides that federal courts sitting in diversity ***may follow the state law*** supplying the limitations statute ***when that law _allows_ relation back***

Answer 22

Post-Erie, **federal common law** is still ***applied in certain instances***, even when the basis for federal jurisdiction is ***diversity***. In determining whether to apply federal common law in diversity cases whose subject matter bears some relation to a federal statute, courts employ a ***balancing test***, which weighs ***federal interests against state interests***. For ***defenses based on federal law***, when a federal common law defense is ***necessary to avoid a significant conflict between _federal_ interests and the _state_ law that supplies the actionable claim***, that federal common law defense ***may preempt state law*** when there is a ***unique or peculiar federal interest*** and the ***state law is in direct conflict*** with the federal law.

Answer 23

The party seeking sanctions under FRCP 11 ***must serve a separate motion*** on the other party, but ***may not file the motion if*** the challenged paper, claim,or defense is ***withdrawn or appropriately corrected within 21 days after the service*** (called the “safe harbor” period).

Answer 24

A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. The court will then decide if the information sought should be produced anyway by evaluating if the disclosure is proportional to the needs of the case. The party from whom documents are requested may not place the burden of identifying those documents on the party that has requested the documents.

Answer 25

Impleader: - D alleges that a third party is liable to them (the original D) for all or part of P's claims against them - D files a complaint against a third party for derivative liability - D = TPP third-party plaintiff - Impleaded party = TPD third-party defendant - D may either: - implead TPD in their answer or - file a third-party complaint within 14 days after serving the answer. - Failure to file a timely third-party complaint will require the D to seek leave of the court to implead TPD. - D must claim that TPD is derivatively liable either by indemnification or contribution - It is improper to implead on the theory that TPD is the only liable party, and that the D is not liable at all. - For diversity cases, if there is no SMJ for the third-party claim, the court can exercise supplemental jurisdiction if the claim is so related that they form part of the same case or controversy.

Answer 26

An amendment to a pleading to change a party **relates back** to the date the original pleading was filed for purposes of the **statute of limitations** if: 1. the claim arises out of the ***same transaction or occurrence*** set out in the original pleading; AND 2. the new party received notice of the plaintiff's original lawsuit and ***should have known*** about the action but-for a mistake concerning the proper party's identity. ★ Supreme Court emphasized that the importance lies in the defendant’s ***knowledge*** that it should have been named originally, but for the plaintiff’smistake as to its identity

Answer 27

To extend the court's scheduling, a party is required to show good cause, ie, that the party acted diligently to meet the original deadlines

Answer 28

- Traditionally, juries have been composed of 12 members. However, the 7th Amendment is no longer construed to require that the jury have 12 members. - Under FRCP, a jury must initially have at least 6 and no more than 12 members. - Unless the parties stipulate otherwise, a mistrial must be declared if the jury dwindles to less than 6. - In exceptional circumstances, when the jury has suffered depletions beyond its alternates, the parties may agree to be bound by a verdict rendered by fewer than six jurors.

Answer 29

If no jury demand is timely made, if a party files a motion to have a jury trial, the court may order a jury trial on any issue for which a jury might have been demanded. This is true even if other parties object

Answer 30

When a pre-answer motion is filed and D fails to include a motion to dismiss for lack of personal jurisdiction, D has waived that defense and thereby consented to jurisdiction.

Answer 31

A court may relieve a party from a final judgment on various grounds, including (among others) mistake, inadvertence, surprise, or excusable neglect. Finding out about juror misconduct would fall under such grounds

Answer 32

A motion for judgment as a matter of law may be combined with a motion for a new trial. If the judge grants the JMOL, the judge must also rule conditionally on the new trial motion. Later, if the JMOL is reversed on appeal, the new trial will then occur automatically unless the appeals court specifies otherwise.

Answer 33

Initial Disclosure: - a party must provide certain information without awaiting a discovery request. - Includes: - identities of witnesses, - documents and tangible things a party plans to use, - information about damages, and - any insurance policies that may apply to the judgment. - If the information is no longer accurate, there is a duty to supplement the disclosures in a timely manner - If a party fails to provide information or identify a witness, the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless

Answer 34

When the reason for seeking relief from a judgment is mistake, inadvertence, surprise, or excusable neglect, a motion must be made no more than ***one year*** after the entry of the judgment

Answer 35

The standard for granting a motion to dismiss for failure to state a claim upon which relief can be granted is that if ***every fact asserted is taken as true*** and the ***plaintiff still has no plausible recovery under any legal theory***, the claim should be dismissed. Eg, the writer claimed that the director plagiarized his work. Under the standard for a motion to dismiss, the court will have to assume the director did actually plagiarize, as the writer is claiming, and this would certainly provide a legal theory on which the writer could recover. As such, the court will likely deny the director's motion for failure to state a claim upon which relief can be granted

Answer 36

The standard for a motion for summary judgment is that there is no genuine issue of material fact

Answer 37

The three possible grounds for ordering an involuntary dismissal are: 1. failure of the plaintiff to prosecute; 2. failure of the plaintiff to comply with the FRCP or any order of the court; AND/OR 3. failure of the plaintiff to show by the close of his evidence a right to relief based upon the facts and the law. All involuntary dismissals are to operate as adjudications on the merits except for four types of dismissals: 1. dismissal for lack of jurisdiction; 2. dismissal for improper venue; 3. dismissal for failure to join a party under Rule 19; AND 4. dismissal that the court in its order specifies to be without prejudice.

Answer 38

Claim Preclusion Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is barred by claim preclusion (res judicata) from asserting the same cause of action in a later lawsuit. When the claimant wins the earlier lawsuit, the cause of action is “merged” into the judgment. This simply means that the claimant cannot sue again on the same cause. Before merger can apply, it must be shown that: 1. the earlier judgment is a valid, final judgment on the merits; 2. the cases are brought by the same claimant against the same defendant - it is not enough that the same litigants were also parties in the previous case - it must be the same configuration of parties; AND 3. the same cause of action or claim is involved in the later lawsuit. Issue Preclusion A judgment binds the plaintiff or defendant (or their privies) in subsequent actions on different causes of action between them (or their privies) as to issues actually litigated and essential to the judgment in the first action. This conclusive effect of the first judgment is called issue preclusion (or collateral estoppel). Note that issue preclusion is narrower than claim preclusion. - Claim preclusion focuses on the scope of a cause of action and bars the claimant from asserting a second case. - Issue preclusion, in contrast, focuses on the narrower issue that was litigated and determined in the first case and that is relevant in the second case. - With issue preclusion,the issue is deemed established in the second case without the need to proffer evidence on it. - For issue preclusion to apply, the judgment must have been final, the issue actually litigated, and it must have been essential to the judgment.

Answer 39

FRCP allows for an appeal when there is a final judgment on one claim, but other claims in the same suit remain if certain requirements are met. The standard for this partial judgment rule is that the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is ***no just reason for delay***. If the court does not expressly determine that there is no just reason for delay, there may be no appeal. As a matter of policy, courts dislike piecemeal appeals and will not enter partial judgments if it seems likely that a piecemeal appeal could occur.

Answer 40

Generally, only final orders are reviewable on appeal. However, the **collateral order doctrine** is a narrow exception to the finality requirement. Under this doctrine, a claim or issue may be immediately appealable if it is ***too important to wait***. There are three requirements: 1. the lower court must have conclusively determined the disputed question; 2. the issue must be separate from and collateral to the merits of the main issue of the case; AND 3. the issue must be effectively unreviewable on an appeal from the final judgment.

Answer 41

Generally, only final orders are reviewable on appeal. - An appeal may be taken by filing a notice of appeal with the district court within 30 days from the entry of the judgment. - A final order is one that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties but as to all causes of action involved. Exceptions: - Collateral Order Doctrine - the appeal is too important to wait - There is no just reason for delay

Answer 42

The state in which the person has his permanent home and to which he intends to return For diversity purposes, the state citizenship of an individual is the state in which he has his permanent home and to which he intends to return. The state in which the person is currently residing, even if temporarily, is not the person's home state for diversity purposes. Although voting and holding some sort of state identification will be considered as evidence of an individual's true permanent home, the state in which the person votes and the state in which the person has a valid driver's license or state identification card are not generally determinative of the person's stat citizenship.

Answer 43

Every state in which it is incorporated and the one state in which it has its principal place of business For purposes of diversity jurisdiction, a corporation is deemed to be a citizen of every state in which it is incorporated and the one state in which it has its principal place of business. Thus, it is possible for a corporation to have two or more state citizenships for diversity purposes. The rule for a corporation is that, in addition to its states of incorporation, a corporation is a citizen of the one state in which it has its principal place of business. It is not a citizen of every state in which it does substantial business. Likewise, in addition to the princiț ipal place of business, a corporation S! deemed to be the citizen of every state in which it is in corporated, not just the first state in which it was incorporated. Thus, the choices incorporating those standards are incorrect statements of a corporation's citizenship for diversity purposes.

Answer 44

An amount that exceeds $75,000 For claims brought under diversity jurisdiction, an amount that exceeds $75,000 is required to be alleged as damages to satisfy the jurisdictional amount, exclusive of interest and costs. Hence, answers with an amount that exceeds $100,000 and the amount of $100,000 or more are incorrect. It is not enough for the claim to involve exactly $75,000; it must be in excess of that amount. Thus, the er with the amount of $75,000 or more is incorrect.

Answer 45

The law of the transferee court A transfer on the ground that the original choice of venue was improper generally results in a change of the law applicable under the Erie doctrine; ie, the law of the state in which the transferee court sits now applies. This is in contrast to a transfer on convenience grounds, in which case the law of the transferor court continues to apply.

Answer 46

In States A, B, C, or D. because those states have personal jurisdiction and proper venue. In a diversity case, the federal court is required to analyze the personal jurisdiction question as if it were a state court sitting in the particular state. **General Jurisdiction** General personal jurisdiction (that is, jurisdiction over all causes of action) is generally allowed when the defendant is ***"at home"*** in the state or has ***registered to do business*** in the state. To be "at home" in a state, a defendant corporation must be incorporated in the state or have its principal place of business in the state. Thus, the defendant corporation is subject to general personal jurisdiction in - State C (where it is "at home") and - States A, B, and D (where it has registered and does significant business). Venue would also be proper in those states because the defendant corporation is subject to personal jurisdiction with respect to the action in those states. For specific jurisdiction (that is, jurisdiction for the instant cause of action only), it must be determined whether the state has a long arm statute authorizing jurisdiction and whether the statute is constitutional, asking whether the defendant has sufficient minimum contacts with the jurisdiction such that the exercise of jurisdiction over him would be fair and reasonable. Here, State D has an applicable long arm statute that authorizes jurisdiction in breach of contract cases where the contract called for performance in the state. This type of provision is an uncontroversial provision that routinely has been held to be constitutional. Thus, specific personal jurisdiction also exists in State D, and venue would be proper both because a substantial part of the cause of action arose in State D and because the defendant corporation resides therein for venue purposes, as explained.

Answer 47

**Improper Venue** Pursuant to Rule 12(b), ***_improper venue_ must be raised in a defendant's first response*** – either in its timely motion to dismiss before the answer or in the answer, whichever is first. **Transfer of Proper Venue** A court may transfer a case ***from one proper venue to another***. Such a transfer has no strict time limit. Rather, transfer is left to the discretion of the trial judge, and the judge may refuse transfer where the case has been pending for some time and would work a prejudice to one of the parties. Venue may be transferred, in the interests of justice, for the convenience of the parties and witnesses despite the plaintiff's initial choice of the forum.

Answer 48

Federal venue in civil actions is proper in: 1. the district where any defendant resides, if ***all defendants are residents of the state*** in which the district is located; and 2. the district in which a ***substantial part of the events or omissions giving rise to the claim occurred***. ——— 3. If there is **_no district anywhere in the US that satisfies 1 or 2_**, the action may be brought in a judicial ***district in which any defendant is subject to the court's personal jurisdiction*** with respect to such action.

Answer 49

Even if the court has personal jurisdiction over the defendants, subject matter over the action, and venue is proper, the court has discretion to decline to hear the case in deference to a court in another country if it determines that the other country provides a substantially more efficient, convenient, and fair forum.

Answer 50

No A defendant may remove an action that could originally have been brought in the federal courts, based on either a federal question being presented or on diversity of citizenship. However, there is no similar provision that allows a case initially filed in federal court to be moved to state court. An action that was wrongfully removed from state court to federal court may be remanded back to state court, but that procedure is not applicable here because the case was initially filed in federal court.

Answer 51

Actually litigated and essential to the judgment Under the doctrine of issue preclusion (also called collateral estoppel), a judgment binds the plaintiff or defendant in subsequent actions on different causes of action as to issues that were actually litigated and essential to the judgment. It is not sufficient merely that the issue was decided by a judge; the issue still must be one that was actually litigated and essential to the judgment. Neither is it sufficient that the issue was decided by the jury; it still must be one that was actually litigated and essential to the judgment.

Answer 52

For res judicata to apply, the earlier and latter causes of action must be brought by the same claimant against the same defendant. It is not sufficient simply that both cases involve the same parties. For example, if the defendant in the first case is the claimant in the second case, claim preclusion will not apply even though both cases involve the same parties. Similarly, it is not sufficient that both cases were brought against the same defendant. Claim preclusion will not apply unless the claimant is the same in both cases.

Answer 53

In order to satisfy federal question jurisdiction, the federal question must appear in the plaintiff's complaint. The federal question must appear as part of the plaintiff's cause of action as set out in a well-pleaded complaint. Federal question jurisdiction is not satisfied if the federal question appears in the defendant's answer, counterclaim, or cross-claim. A complaint will not create federal question jurisdiction if it alleges federal issues only in anticipation of some defense. The federal question must appear as part of the plaintiff's cause of action as set out in a well-pleaded complaint. It is therefore sometimes necessary to determine whether certain allegations are proper in pleading the cause of action, and whether the federal element is essential to the plaintiff's case.

Answer 54

When a plaintiff has both federal and state-based claims against a defendant and diversity jurisdiction does not exist, the federal court has: Discretion to exercise supplemental (pendent) jurisdiction over the state law claim if the two claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding In some cases, the plaintiff will have both federal and state claims against the defendant. Although there may be no diversity, the federal court has discretion to exercise supplemental (pendent) jurisdiction over the claim based on state law if the two claims are so related that they are part of the same case or controversy, which essentially means that they derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding. A federal court does not have discretion to exercise jurisdiction if the claims are unrelated. Hence, it is not correct that the court has discretion regardless of whether the claims are related. The court's exercise of supplemental jurisdiction in such a scenario is discretionary. Thus, both answer choices asserting that the court has no discretion to exercise supplemental (pendent) jurisdiction over the state law claim are incorrect. It need not exercise discretion, and it need not transfer the claims to state court. The court may dismiss or hear the state law claim in its discretion, but will likely retain jurisdiction over it. When a claim is in federal court under federal question jurisdiction, and the plaintiff has a state law claim against the defendant that cannot invoke diversity jurisdiction, the federal court has discretion to exercise supplemental (pendent) jurisdiction over the state law claim if the federal and state claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding. The court may continue to exercise supplemental (pendent) jurisdiction over the state claim even though the federal claim is dismissed on the merits. However, the state claim should probably also be dismissed (without prejudice) if the federal claim is dismissed before trial. Here, although the federal copyright claim was invalid, it was deemed to be so during trial, before a verdict was rendered. Since the case is currently being tried, the court will likely hear the state claim for the sake of judicial economy.

Answer 55

For venue purposes, a business entity defendant is deemed to reside in: Any judicial district in which the defendant is subject to the court's personal jurisdiction with respect to the action in question A business entity defendant is deemed to reside in any judicial district in which the defendant is subject to the court's personal jurisdiction with respect to the civil action in question. The judicial district in which the business entity is incorporated is too narrow an answer. Not all business entities are incorporated. Any judicial district in which the defendant is subject to the court's personal jurisdiction is too broad an answer; the entity must be subject to the court's personal jurisdiction with respect to the particular civil action in question. General jurisdiction is generally allowed when the defendant is 1. ***at home*** in the state or - corporation must be - be incorporated in the state - have its principal place of business in the state 2. ***registered to do business*** in the state

Answer 56

There are essentially two time restrictions on removal of a diversity case to federal court: 1. a case based on diversity must be removed within 30 days of the defendant's receipt of a copy of the paper (order, motion, etc.) that makes the case removable; but 2. in no event may the case be removed more than one year after it was commenced in state court.

Answer 57

Under the federal discovery rules, the parties must confer to consider: 1. their claims and defenses, 2. the possibility of settlement, 3. initial disclosures, 4. any issues concerning the preservation of evidence, and 5. a discovery plan. Unless a different time is set by court order or stipulation, within 14 days after this meeting, the parties must provide the following disclosures: 1. the names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses (unless needed solely for impeachment) 2. copies or descriptions of documents, electronically stored information, and tangible things that are in the disclosing party's possession or control and that the disclosing party may use to support its claims or defenses, unless solely for impeachment, 3. computation of damages claimed by the disclosing party and copies of materials upon which the computation is based; and 4. copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.

Answer 58

Not reasonably accessible because of undue burden or cost During discovery, electronically stored information need not be produced if the responding party identifies it as from a source that is not reasonably accessible because of undue burden or cost. The fact that the information is not stored in the form requested is not a valid excuse for failure to produce electronic data. A responding party must use the form requested by the requesting party unless the responding party makes an objection that is determined to be valid by the court. Even if the objection is valid, it merely affects the form in which the information is to be produced, not the production itself.

Answer 59

Generally, work product – a document or tangible thing – made by a party or representative of a party (eg, attorney) is not discoverable if made in anticipation of litigation, unless the party requesting discovery can show substantial need and undue hardship if disclosure is not ordered. Work product that was not made in anticipation of the litigation is obtainable. Work product that is relevant to the litigation may be discoverable if the work product was not made in anticipation of the litigation (or if it is not a document or tangible thing).

Answer 60

Parties may obtain discovery of any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. "Any matter" includes both documentary evidence and individuals with knowledge. As long as the information sought is reasonably calculated to lead to admissible evidence, it is not required that the information itself be admissible at trial.

Answer 61

An expert is a person with knowledge, skill, experience, training, or education in a particular field. The opinion of an expert consulted in anticipation of litigation is discoverable if a party intends to call the expert as a trial witness. Conversely, the opinion of an expert who is retained in anticipation of litigation but who is not expected to testify at trial (ie, a consulting expert) is discoverable only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means. Absent such circumstances, these opinions are not discoverable, regardless of whether the nontestifying expert was informally consulted or whether she was retained or specially employed.

Answer 62

Following a default by a defendant, the clerk may sign and enter a judgment for the amount set forth in the plaintiff's affidavit if 1. the defaulted defendant is not an infant or an incompetent 2. plaintiff's claim is for a sum certain and 3. the default was entered because the defendant failed to appear.

Answer 63

A court may grant, in its discretion, an ex parte temporary restraining order if the moving party: 1. gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition 2. certifies in writing all efforts made to give notice of the hearing to the adverse party and the reasons why notice should not be required; and 3. provide some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if they were wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security. Preliminary injunctions and summary judgments require notice to the other party in order to be issued.

Answer 64

In a diversity case, federal trial courts are required to apply a state law standard when considering a motion for a new trial based on the excessiveness of the verdict.

Answer 65

An issue not raised by the pleadings is treated as if raised in the pleadings if it is tried by the parties' express or implied consent. In such a case, a party may move – at any time, even after judgment – to amend the pleadings to conform them to the evidence and to raise the unpleaded issue. A manufacturer sued a department store for breach of contract, alleging that the department store failed to pay for a shipment of watches delivered by the manufacturer to the department store in July of that year. At trial, the manufacturer introduced evidence regarding the department store's failure to pay for the watches. In addition, it introduced evidence that the department store failed to pay for a shipment of necklaces, also delivered that July pursuant to a separate contract. At the close of the manufacturer's case, the department store introduced evidence showing that both the watches and the jewelry were defective. The jury returned a verdict for the manufacturer, awarding the manufacturer damages for breach of both contracts. The manufacturer then immediately moved to amend its complaint to conform to the evidence introduced at trial. Should the court allow the amendment? Yes, because the department store impliedly consented to the introduction of the evidence.

Answer 66

File a motion to have the clerk of court enter the default judgment, and the clerk may do so without the consumer receiving any further notice of the motion. On request of the plaintiff, supported by an affidavit as to the amount due, the clerk may sign and enter judgment for that amount and costs against the defendant if: 1. the plaintiff's claim against the defaulted defendant is for a sum certain; 2. the default was entered because the defendant failed to appear; 3. the defaulted defendant is not an infant or incompetent person; and 4. the damages amount requested is not greater than the amount requested in the complaint.

Answer 67

The jury will first determine the issues relating to the legal claim, and the judge will determine the issues relating to the equitable claim that have not already been resolved by the jury. If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury's finding on fact issues will bind the court in the equitable claim.

Answer 68

Review under the Interlocutory Appeals Act is discretionary with the court and may be available when: 1. the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and 2. an appeal would materially advance the conclusion of the case, and 3. at least two appellate court judges agree to hear the appeal. Interlocutory (ie, nonfinal) orders that may be immediately appealed include: 1. an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction), 2. an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships, 3. decrees in admiralty cases that find liability but leave damages to be assessed later, 4. a patent infringement order where only an accounting is wanting, and 5. an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like An order dismissing defendant's counterclaims would not typically be subject to an interlocutory appeal absent other circumstances. Although patent infringement orders may sometimes be subject to interlocutory appeal as stated above, there is no such exception for an order regarding copyright claims.

Answer 69

When an action involves multiple claims or parties, generally, a judgment as to only some of the claims or parties is not immediately appealable regarding the parties who were disposed or as to the claims that were disposed. However, the court may make an express determination that there is no just reason for delay.

Answer 70

In order to reserve its right to appeal an error in an instruction given or, as is the case here, a failure to give an instruction, a party must object on the record before the instructions are given. If adequately preserved, the instructions are reviewed using an abuse of discretion standard. However, if the objection is not made (and therefore not preserved for full appellate review), then the court's review is limited to considering whether there was a plain error in the instruction that affected substantial rights.

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