Civil Procedure

Question 1

What is a compulsory counter-claim? What are the requirements?

Answer 1

A claim by the defendant against the plaintiff that arises out of the same transaction or occurrence as the plaintiff’s claim.

Must be made in the current case.

Does NOT need to meet the jurisdictional amount requirement for diversity jurisdiction.

Question 2

What is a permissive counter-claim? What are the requirements?

Answer 2

A claim by the defendant against the plaintiff that arises out of an unrelated transaction.

Can be made in current case, but does not have to be.

It MUST meet the diversity jurisdictional amount requirement.

Question 3

Once a trial court issues an order after a final pretrial conference, when can that order be modified?

Answer 3

It may only be modified to prevent manifest injustice.

Question 4

If a jury starts with 12 members, but one is dismissed, can their verdict be valid if the 11 remaining members reach a unanimous conclusion?

Answer 4

Yes. If the juror was properly excused for good cause and the remaining jury still had more than 6 members.

Question 5

Can a complaint in federal court (based on diversity jurisdiction) be amended to include a defendant party if that party would destroy complete diversity?

Answer 5

No.

Question 6

When can a new trial be granted for attorney inflamatory remarks?

Answer 6

If a party, witness, or counsel conducts herself improperly to the extent that there is a substantial risk that an unfair verdict has resulted, the judge may grant a new trial.

Question 7

What is the only way to survive a motion to dismiss for failure to effect timely service (90 days)?

Answer 7

You must demonstrate “good cause” for failing to do so.

“Good cause” is typically something beyond the party’s control. Forgetting to effect service does not constitute good cause.

Question 8

If a party has an affirmative defense, should they file an answer asserting that defense or just file a motion to dismiss?

Answer 8

They must file an answer asserting their affirmative defense.

Question 9

What is the standard for denying a motion for a new trial?

Answer 9

A court should not grant the motion if the verdict was not against the weight of the evidence.

(The inverse may be true as well, need to be certain.)

Question 10

What is a writ of mandamus?

Answer 10

A writ of mandamus commands a trial judge to act.

The standard for granting a writ of mandamus involves reviewing the record to determine that:
(1) An appeal would be insufficient to correct the problem; and
(2) The trial court’s actions constitute a serious abuse of power in need of immediate rectification.

Question 11

What is a writ of prohibition?

Answer 11

A writ of prohibition commands a trial judge to refrain from acting.

It is available only if the district court is violating a clear legal duty.

Question 12

Can an appellate court hear a new issue that was not presented at the trial court level?

Answer 12

Yes, if it is a pure question of law. Appellate courts have discretion to decide for themselves.

Question 13

When is a JMOL appropriate vs. a Summary Judgement?

Answer 13

Summary judgements need to be made 30 days or less from the closure of discovery, and when there is no genuine dispute of material fact.

JMOL is made when there is extensive evidence for one side (and not much on the other) so that a reasonable jury could not decide for the non-moving party.

Question 14

What does a final judgement in a non-jury trial require?

Answer 14

It requires the judge to make specific findings and state conclusions in support of the judgement.

Without specific findings or conclusions, a judgement that simply says “judgement for the ____” does not constitute a final judgement.

Question 15

What type of relief sought does NOT provide a Seventh Amendment right to a jury trial?

Answer 15

Equitible Relief.

However, when combined with other common issues that have both legal and equitable claims, a jury can be requested.

Question 16

May a party file for relief from a final motion based on fraud, misrepresentation, or other misconduct of an adverse party? If so, what is the timeframe?

Answer 16

Yes. Such a motion must be made within a reasonable time not to exceed one year.

Question 17

Is there a federal law giving automatic effect to forum-selection clauses?

Answer 17

No, it is up to the court’s discretion to decide whether to transfer the case to the jurisdiction designated by the forum-selection clause.

Question 18

What are the factors in weighing a court order to produce work-product in discovery?

Answer 18

(1) The cost of obtaining the desired information through means other than the discovery of the priviledged material;
(2) The finances of the party seeking discovery; AND
(3) If what is sought is a transcript of a witness’s statement, the hostility of the witness to the discovering party.

Question 19

What if the work-product is created in anticipation of litigation by a non-party, it it still protected?

Answer 19

It is still covered by the work-product protections.

Question 20

What is the amount of controversy requirement for interpleader actions?

Answer 20

Much lower, only $500.

Question 21

When are parties entitled to a jury trial when both legal and equitible issues arise?

Answer 21

When both legal and equitable issues exist, the defendant is entitled to a jury trial on the legal issues… Even if the equitable issue clearly predominates, still entitled to a jury trial on the legal issue.

Question 22

What happens if a party makes a motion for judgement on the pleadings and includes affidavits with other matters outside the pleadings?

Answer 22

A party making a motion for judgment on the pleadings and accompanying it with an affidavit or other matters outside the pleadings may in reality be making a motion for summary judgment, putting the wrong label on the motion. The court is expressly authorized to treat such a motion as one for summary judgment and to conduct subsequent proceedings on the motion in accordance with the rule on summary judgment, giving the parties full opportunity to present material made relevant by that rule.

Under the rule for summary judgment, a party opposing the motion may present reasons why they need additional time to submit affidavits or obtain depositions. Given that this action is just at the pleading stage, the court will likely grant additional time for you to pursue discovery and respond to the affidavits.

Question 23

May objections to venue be raised in a defendant’s answer if the defendant did NOT assert a Rule 12(b) pre-answer motion?

Answer 23

Yes, they can be raised in the answer if the defendant did NOT file a Rule 12(b) motion.

Question 24

If there is a claim in federal court, based on diversity jurisdiction (meaning a state law claim), and the FRCP and state laws conflict on the statute of limitations, who’s SoL should be applied?

Answer 24

The state’s SoL. Federal question’s are governed by the FRCP, this is a state law issue, so court applies state law SoL (Eerie).

Question 25

Is “additur” allowed in federal court? What about federal question vs. diversity cases?

Answer 25

No, not allowed in federal court in either FQ cases or diversity cases, it has been held unconstitutional under the Seventh Amendment.

It can be allowed in state cases.

Question 26

When may a party amend its pleading once “as a matter of course??

Answer 26

Within 21 days after the pleading was served.

Question 27

When may supplemental jurisdiction sometimes give a court jurisdiction over an action?

Answer 27

If the actions share a common nucleus of operative facts with an underlying claim that has proper federal subject-matter jurisdiction.

Question 28

When attempting to dismiss for improper service of process, how may the defendant proceed?

Answer 28

They can EITHER:
(1) Include the defense in the answer; OR
(2) File a pre-answer motion to dismiss.

Question 29

What type of suits does the Seventh Amendment preserve the right to a jury trial in? In what courts? What does this turn on?

Answer 29

All suits at common law.

In FEDERAL courts, state courts can set their own rules as to when you are entitled to a jury trial.

Whether a suit is a suit at common law turns on whether the claim for relief was available at law or equity in 1791.

Question 30

What is the time limit to remove a diversity action to federal court? Even if damages are uncertain?

Answer 30

One year. Must make an effort in discovery to ascertain the damages amount.

Question 31

Do federal courts have SMJ over domestic relations or probate proceedings? When may SMJ be waived?

Answer 31

No, even when diversity is satisfied.

Lack of SMJ may be asserted at ANY TIME, and may not be waived.

Question 32

Should a crossclaim be dismissed if it does not arise out of the same transaction or occurence?

Answer 32

Yes.

Question 33

When the physical or mental condition of a party is in controversy, what may the court do? When may they do it?

Answer 33

The court may order the party to submit to a physical or mental examination by a physician or other examiner.

The order may be made only upon a motion showing good cause for the exam.

Question 34

When the reason for seeking relief from a judgment is “mistake, inadvertence, suprise, or excusable neglect”, what is the time limit for a motion seeking relief from judgement?

Answer 34

No more than one year.

Question 35

A defendant seeking to remove a case to federal court must file a notice of removal where?

Answer 35

In the federal discrict court where the state action is pending.

Question 36

What is the difference between permissive joinder and permissive intervention?

Answer 36

Permissive joinder allows an existing party to move to join claims or parties.

Permissive intervention allows a nonparty to ask to join an action.

Question 37

Are choice-of-law rules considered substantive for Erie purposes? A federal court sitting in a diversity case must follow which choice of law rules?

Answer 37

Yes.

THE CHOICE-OF-LAW RULES IN THE STATE IN WHICH IT SITS.

Question 38

What is the Pennoyer holding?

Answer 38

A court may exercise personal jurisdiction over a non-resident defendant if she is present in the forum state when personally served with process.

Question 39

If a party makes a disclosure that is accurate when made, but later discovers that the disclosure is no longer accurate, there is an important duty to supplement one’s prior disclosures….. Or else what?

Answer 39

If the opposing party makes a motion for summary judgement, the court will not look at the information you did not disclose (must stick to the record)… Cannot decide when to disclose it by using an affidavit to oppose SJ.

Question 40

What is the time limit for a motion for a new trial?

Answer 40

28 days after entry of the judgement.

Question 41

When is it proper to “implead” a party?

Answer 41

It is proper to join a party that is derivatively liable to the original party.

Question 42

When is it proper to “interplead” a party?

Answer 42

It is proper if the original party is making a property claim against the new party, and the new party knew that other people also claimed a right to that property.

Question 43

What type of diversity cases are not subject to removal from state courts?

Answer 43

Certain claims under the Violence Against Women Act of 1994, some actions against railroads, and claims that arise under a state workers’ compensation law where the action was filed.

Question 44

When must you assert a lack of personal jurisdiction defense?

Answer 44

In the FIRST pre-answer motion, if there are no pre-answer motions, then it must be raised in the answer, or else it is waived on either occasion.

IF THERE IS A PRE-ANSWER MOTION - MUST INCLUDE OR WAIVED.
IF NO PRE-ANSWER MOTION - MUST INCLUDE IN ANSWER OR WAIVED.

Question 45

If you make a motion for a new trial, and it is denied, can you then make an appeal?

Answer 45

Yes.

Question 46

Does the Seventh Amendment requirement for remittitur OR new trial prevail over the Erie Doctrine if the state offers only remittitur in a federal case?

Answer 46

Yes, must offer remittitur or a new trial.

Question 47

If a federal court is sitting in diversity, which procedural rules should they apply?

Answer 47

The FRCP, not the state procedural rules.

Substantive = State Law (Erie)
Procedural = Federal Rules of Civil Procedure

Question 48

How are issues that are tried, but not raised in the pleadings, treated?

Answer 48

If they are tried by the parties express or implied consent, they are treated in all respects as if raised in the pleadings.

Question 49

When is an interlocutory review discretionarily available?

Answer 49

(1) The trial court certifies in writing that the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate terminiation of litigation; AND
(2) The court of appeals agrees to allow the appeal.

Question 50

In class action suits, how is diversity of citizenship determined?

Answer 50

Whether the named parties are diverse from one another.

Question 51

Does a legal conclusion (like using the term “negligently”) included in a pleading make that pleading defective?

Answer 51

No.