Civil Procedure

Question 1

CIVIL PROCEDURE - 1 Subject Matter Jurisdiction - A-In General - 3-Waiver

1. Can SMJ be waived?

Answer 1

1. SMJ CANNOT BE WAIVED

• SMJ may not be waived and can be brought up at any time, even after a final decision

Question 2

CIVIL PROCEDURE - 1 Subject Matter Jurisdiction - B-Federal Question Jurisdiction - 2-Concurrent Versus Exclusive Jurisdiction

1. What jurisdiction do federal courts have over patents, copyrights, and trademarks?

Answer 2

1. EXCLUSIVE JURISDICTION OVER PATENT & COPYRIGHT - NOT TRADEMARK

• federal courts have exclusive jurisdiction over patent and copyright cases, but for trademark cases, they share jurisdiction with state courts

Question 3

CIVIL PROCEDURE - 1 Subject Matter Jurisdiction - C-Diversity Jurisdiction - 1-Basis

1. What types of cases are outside of the federal court’s jurisdiction?

Answer 3

1. PROBATE & FAMILY LAW EXCLUDED

• cases that are primarily probate and family law are excluded from federal jurisdiction

Question 4

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - C-Diversity Jurisdiction - 3-Citizenship of Parties

1. When is citizenship determined?

2. What is the citizenship of an estate representative?

3. What is a stateless person and what is their citizenship?

Answer 4

1. CITIZENSHIP DETERMINED AT TIME OF FILING

• citizenship of the parties is determined on the date of the initial filing

2. CITIZENSHIP OF DECEDENT

• if sued as representative of estate, citizenship is determined by the decedent’s citizenship before death; if sued personally (eg, for fraud), then use the representative’s citizenship

3. STATELESS PERSONS AREN’T “CITIZENS” OF ANYWHERE SO NO DIVERSITY

• stateless persons have no citizenship and thus cannot be a party in a diversity action; stateless if (1) US citizen domiciled in a foreign country, (2) person in US who has no citizenship anywhere

Question 5

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - C-Diversity Jurisdiction - 4-Amount in Controversy

1. When may multiple plaintiffs aggregate their claims to meet the AIC?

Answer 5

1. MULTIPLE PLAINTIFF AGGREGATION

• 2+ plaintiffs may aggregate to meet the AIC only if they are enforcing an undivided interest; otherwise, if 1 plaintiff meets the AIC, a 2nd plaintiff may join through supplemental jurisdiction for the same case or controversy

Question 6

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - D-Supplemental Jurisdiction - 1-In General

1. What are the steps to determining supplemental jurisdiction?

2. When may a claim without SMJ have supplemental jurisdiction?

Answer 6

1. STEPS

1. common nucleus of operative fact
2. federal question or diversity
3. parties

2. NO SMJ BUT COMMON NUCLEUS OF OPERATIVE FACT

• if an additional claim doesn’t have SMJ, the court may hear it if it arises out of a common nucleus of operative fact, ie, same case or controversy

Question 7

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - D-Supplemental Jurisdiction - 2-Federal Question Jurisdiction Cases

1. For a federal question, what is required for a state claim to be included under supplemental jurisdiction?

2. What happens to a state claim when a federal question case is dismissed?

Answer 7

1. FEDERAL QUESTION & COMMON NUCLEUS

• if the court has SMJ through federal question, it may exercise supplemental jurisdiction over a state case that arises under a common nucleus of operative fact

2. DISMISSAL OF FEDERAL CLAIM

• if the federal claim is dismissed, the federal court could still exercise jurisdiction over the state claim, but it will usually be dismissed

Question 8

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - D-Supplemental Jurisdiction - 3-Diversity Jurisdiction Cases

1. When can a counterclaim have supplemental jurisdiction?

2. When will supplemental jurisdiction not apply?

Answer 8

1. COMPULSORY COUNTERCLAIMS

• when a counterclaim is compulsory (ie, arises out of the same transaction or occurrence), the court may exercise supplemental jurisdiction

2. NO SUPPLEMENTAL JURISDICTION

• (1) P v. new party by (a) permissive joinder; (b) compulsory joinder; (c) impleader; (d) intervenor; (2) party who wants to join as P; (3) party who wants to intervene as P; (4) permissive counterclaim (no common nucleus)

Question 9

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - D-Supplemental Jurisdiction - 4-Discretionary Rejection of Supplemental Jurisdiction

1. Can a court decide not to hear a case under supplemental jurisdiction?

Answer 9

1. DISCRETION TO REJECT SUPPLEMENTAL JURISDICTION

• federal court may reject supplemental jurisdiction if (1) novel or complex issue of law; (2) supplemental claim substantially dominates; (3) all claims with SMJ have been dismissed; (4) other exceptional compelling reasons

Question 10

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - E-Removal Jurisdiction - 1-Basis

1. When is a case removable?

2. To where must a case be removed?

Answer 10

1. ORIGINAL JURISDICTION

• a case commenced in state court which could have been brought in federal court is removable by D

2. SAME DISTRICT

• must be removed to same federal district & division where state court lies

Question 11

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - E-Removal Jurisdiction - 2-Determination

1. When is it determined whether a case is removable?

2. When is a diversity case removable?

3. If the state court didn’t have jurisdiction, how does it aeffect removal?

Answer 11

1. DETERMINED BY PLEADINGS WHEN REMOVED

• generally determined by pleadings at time of removal

2. DIVERSITY AT FILING OR DISMISSAL

• to remove a diversity case, either (1) diverse at commencement; (2) a party that destroyed diversity is voluntarily dismissed

3. NO STATE COURT JURISDICTION

• lack of jurisdiction in the state court where filed has no aeffect on federal court’s jurisdiction

Question 12

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - E-Removal Jurisdiction - 3-Other Removal Statutes

1. What other types of cases are removable?

2. What types of cases aren’t removable?

Answer 12

1. MAY REMOVE

• (1) against US or officer under color of title; (2) federal employee in a car accident; (3) patent, copyright, or plant variety; (4) international banking

2. MAY NOT REMOVE

• (1) FELA or Jones railroad; (2) against carrier < $10k; (3) state worker compensation; (4) violence against women

Question 13

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - E-Removal Jurisdiction - 4-Limitation on Removal in Diversity Cases

1. Can a case be removed where D is a citizen?

Answer 13

1. NO DIVERSITY D CITIZEN OF STATE

• a diversity case may not be removed if any D is a citizen of the state where it was brought

Question 14

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - E-Removal Jurisdiction - 5-Removal of Separate & Independent Claims in a Federal Question Jurisdiction Case

1. If separate and independent claims are removed, must the court hear them?

Answer 14

1. SEPARATE & INDEPENDENT CLAIMS

• whole case is removable and federal court may sever and remand

Question 15

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - E-Removal Jurisdiction - 6-Procedure

1. Within how many days of service must a case be removed?

2. If a case becomes removable after 1 year, can it be removed?

3. What happens if a D objects to removal?

4. If P didn’t plead an AIC, what must a D show to remove the case?

5. May the state court take any action once a removal is filed?

6. If a jury wasn’t demanded before removal, how many days after removal must it be demanded?

Answer 15

1. 30 DAY DEADLINE

• D must remove within 30 days of receipt of pleading making it removable - eg, complaint, dismissal of party

2. 1 YEAR DEADLINE

• diversity D may not remove more than 1 year after commencement, unless P acts in bad faith

3. ALL Ds MUST AGREE

• all Ds must consent to the removal

4. PLAUSABLE ALLEGATION OF AIC

• D may make a plausible allegation that AIC is > $75K

5. STATE COURT RESPONSE

• once filed, state court must take no further action

6. 14 DAY JURY DEADLINE

• if no jury demand before removal, must make jury demand within 14 days of removal

Question 16

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - E-Removal Jurisdiction - 7-Remand

1. May a case be remanded?

Answer 16

1. REMAND

• Federal court may remand a removed case back to the state court

Question 17

CIVIL PROCEDURE - 1-Subject Matter Jurisdiction - F-Legislative Jurisdiction - 1-Legislative Jurisdiction

1. What other types of federal courts are there?

Answer 17

1. OTHER COURTS

• (1) Claims Court against US, officer’s or for property; (2) Federal Court of Appeals; (3) Court of International Trade; (4) Tax Court; (5) Bankruptcy Court

Question 18

CIVIL PROCEDURE - 2-Personal Jurisdiction - A-In General - 4-Consent or Waiver

1. What happens if a party fails to object to PJ?

Answer 18

1. WAIVED IF FAIL TO OBJECT

• an objection to PJ must be brought up in a responsive pleading or in a motion before a responsive pleading or it is waived

Question 19

CIVIL PROCEDURE - 2-Personal Jurisdiction - B-In Personam Jurisdiction - 3-Due Process Requirements

**1. When does a court have specific jurisdiction?”*

2. Are there minimum contacts if a publisher sells newspapers in another state?

3. Are there minimum contacts if an insurance company sells a single policy in a state?

4. Are there minimum contacts when a car manufacturer advertises and has cars sold in other states?

5. Are there minimum contacts when a franchisee opens a franchise in another state?

Answer 19

1. SPECIFIC JURISDICTION

• when COA arises from or closely relates to D’s contact with the forum state, may have specific jurisdiction, even if that’s D’s only contact with forum state

2. NEWSPAPER

• minimum contacts is met wherever a publisher sells newspapers

3. INSURANCE COMPANY

• minimum contacts is met when an insurance company sells a single life insurance policy in a state

4. CAR MANUFACTURER

• minimum contacts is met when a car manufacturer sells cars to dealers and advertises its cars in the state

5. RESTAURANT FRANCHISEE

• minimum contacts is met when a franchisee enters into a comprehensive long-term contract with a restaurant franchise located in another state

Question 20

CIVIL PROCEDURE - 2-Personal Jurisdiction - C-Jurisdiction Over Things - 1-In Rem Jurisdiction

1. What is the minimum notice required for an in rem action?

Answer 20

1. IN REM NOTICE CAN BE MAILED

• in an in rem action, persons whose interests are known to be affected and whose addresses are known must be notified at least by ordinary mail

Question 21

CIVIL PROCEDURE - 2-Personal Jurisdiction - E-Defenses to Jurisdictional Claims - 4-Immunity

1. Can a party be served if they’re in the state to testify at another trial?

Answer 21

1. IMMUNE IF IN STATE TO TESTIFY

• a defendant who enters a state solely to testify in another proceeding is generally immune from service within the state

Question 22

CIVIL PROCEDURE - 5-Pleadings - B-Service of Process - 3-Methods of Service

1. Can a summons be left with the party’s secretary?

Answer 22

1. SERVICE CAN BE ON D, D’S ABODE, AGENT, STATE LAW

• service of the summons and complaint may be (1) personally on D; (2) on 3rd party at D’s abode (resident of suitable age and discretion); (3) through an authorized agent; (4) otherwise according to state law where served

Question 23

CIVIL PROCEDURE - 5-Pleadings - E-Motions Against the Complaint - 2-Motion to Dismiss for Failure to State a Claim [12.b.6]

1. What is a 12.b.6 motion?

Answer 23

1. FAIL TO STATE A LEGALLY COGNIZABLE CLAIM [12.b.6]

• if a complaint fails to state a legally cognizable theory for recovery, the court will dismiss for failure to state a claim upon which relief can be granted

Question 24

CIVIL PROCEDURE - 6-Multiple Parties & Claims - A-Joinder of Parties - 2-Compulsory Joinder [19]

1. When is a party a necessary party?

2. Is a joint tortfeasor a necessary party?

3. When is a party an indispensable party?

Answer 24

1. NECESSARY PARTY

• a party who is subject to service and who won’t destroy SMJ or venue must be joined if (1) court can’t provide complete relief, (2) party can’t protect their interests, or (3) existing parties would be subject to multiple adjudication

2. JOINT TORTFEASORS AREN’T NECESSARY

• a party who is jointly and severally liable is not a necessary party

3. INDISPENSABLE PARTY

• when a necessary party can’t be joined, and a case without them would cause prejudice and inadequate remedies, the court must dismiss the case”

Question 25

CIVIL PROCEDURE - 6-Multiple Parties & Claims - D-Joinder of Claims - 1-Permissive Joinder [18]

1. How many claims may a plaintiff bring?

Answer 25

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

Question 26

CIVIL PROCEDURE - 6-Multiple Parties & Claims - D-Joinder of Claims - 4-Third-Party Claims (Impleader) [14]

1. What is required to implead a 3rd party?

2. What information is required in a 3rd party impleader?

Answer 26

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

Question 27

CIVIL PROCEDURE - 6-Multiple Parties & Claims - E-Class Actions - 1-Prerequisites

1. Is full diversity of citizenship and AIC required for a class action?

2. What is required for a class action under CAFA - members? - AIC? - diversity?

Answer 27

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

Question 28

CIVIL PROCEDURE - 7-Pretrial Procedure & Discovery - B-Discovery Scope & Limits - 5 Claims of Privilege

1. When does attorney-client privilege apply to discovery?

Answer 28

1. PRIVILEGED ATTORNEY-CLIENT COMMUNICATIONS AREN’T DISCOVERABLE

• attorney-client communications for legal assistance have absolute privilege and are not discoverable

Question 29

CIVIL PROCEDURE - 7-Pretrial Procedure & Discovery - D-Discovery Devices - 2-Interrogatories

1. Does a nonparty have to answer interrogatories?

Answer 29

1. INTERROGATORIES CAN’T GO TO NONPARTIES

• only parties to the action may be served with interrogatories

Question 30

CIVIL PROCEDURE - 7-Pretrial Procedure & Discovery - H-Adjudication Without Trial - 3-Summary Judgment

1. What is the standard for an MSJ to be granted?

2. How does a judge analyze an MSJ?

3. Is a granted MSJ appealable?

4. What is the deadline for filing an MSJ?

Answer 30

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

Question 31

CIVIL PROCEDURE - 8-Trial Procedure - A-Jury Trial - 1-Right to a Jury Trial

1. When does the right to a jury not apply?

Answer 31

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

Question 32

CIVIL PROCEDURE - 8-Trial Procedure - A-Jury Trial - 2-Jury Demand & Waiver

1. What is the deadline for filing a demand for a jury?

Answer 32

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

Question 33

CIVIL PROCEDURE - 8-Trial Procedure - A-Jury Trial - 8-Jury Verdicts

1. What happens if a jury fails to follow directions?

Answer 33

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

Question 34

CIVIL PROCEDURE - 8-Trial Procedure - A-Jury Trial - 9-Juror Misconduct

1. What happens if a juror lies during voir dire?

Answer 34

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

Question 35

CIVIL PROCEDURE - 8-Trial Procedure - E-Judgment as a Matter of Law - 1-Motion for Judgment as a Matter of Law (“Directed Verdict”) [50.a]

1. Whan must a JMOL be filed and what is the standard for ir to be granted?

Answer 35

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

Question 36

CIVIL PROCEDURE - 8-Trial Procedure - E-Judgment as a Matter of Law - 2-Renewed Motion for Judgment as a Matter of Law (JNOV) [50.b]

1. What must happen first in order to a JNOV to be considered?

2. What is the deadline for filing a JNOV?

Answer 36

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

Question 37

CIVIL PROCEDURE - 9hPost-Trial Procedure - B-Appeals - 6-Standards of Review

1. What is the standard of review for a jury verdict?

2. What is the standard of review for judge findings of fact?

3. What is the standard of review for judge findings of law?

4. What is the standard of review for judge discretion?

Answer 37

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

Question 38

What are the Due Process requirements for giving a party notice?

Answer 38

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.

Question 39

When is a representative being sued in their professional capacity?

What happens if a rep is served in a different state while on vacation?

Answer 39

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

Question 40

How do remand and SMJ work together?

Answer 40

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

Question 41

May one party’s attorney personally serve a lawsuit on another party?

Answer 41

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

Question 42

For a hearing on a default judgment on a party who has appeared but not answered, how many days notice is required?

Answer 42

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

Question 43

What is the deadline for serving a lawsuit?

When can the deadline to serve be extended?

Answer 43

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

Question 44

What happens if a state’s long arm statute doesn’t allow a court in another state to enforce a judgement against its citizens?

Answer 44

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

Question 45

What happens if state law doesn’t follow the relation back doctrine?

Answer 45

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

Question 46

What happens when a party in a diversity case claims a defense under federal law?

Answer 46

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.

Question 47

What is the procedure for filing a motion for sanctions under FRCP 11?

Answer 47

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).

Question 48

Who has the burden of identifying what electronically stored information is not reasonably accessible?

Answer 48

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.

Question 49

What is an impleader?

Answer 49

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.

Question 50

What is required to change a party so that it relates back to the original filing for SOL purposes?

Answer 50

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

Question 51

What showing is required to extend the court’s scheduling?

Answer 51

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

Question 52

How many people are required to be on a jury heard in federal court?

Answer 52

• 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.

Question 53

Can there be a jury trial if no party makes a timely demand for one?

Answer 53

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

Question 54

Can a motion for dismissal for lack of personal jurisdiction be filed at a later time than other pre-answer motions?

Answer 54

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.

Question 55

May juror misconduct be grounds for relief from judgment?

Answer 55

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

Question 56

What happens when a motion for judgment as a matter of law and a motion for a new trial are filed at the same time?

Answer 56

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.

Question 57

What are initial disclosures?

What happens if the information provided in the initial disclosures changes?

Answer 57

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

Question 58

When must a motion for relief from a judgment for mistake, inadvertence, surprise, or excusable neglect be filed?

Answer 58

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

Question 59

What is the standard for a motion to dismiss for failure to state a claim upon which relief can be granted?

Answer 59

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

Question 60

What is the standard for a motion for summary judgment?

Answer 60

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

Question 61

What are the possible grounds for ordering an involuntary dismissal?

Are involuntary dismissals considered to be adjudications on the merits?

Is a dismissal for failure to prosecute considered an adjudication on the merits?

Answer 61

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.

Question 62

Claim Preclusion and Issue Preclusion

Answer 62

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.

Question 63

Can the court allow for an appeal on one claim when there isn’t a final judgment of all claims?

Answer 63

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.

Question 64

What is the collateral order doctrine?

Answer 64

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.

Question 65

When is appeal available?

What are the exceptions?

Answer 65

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