Civil Procedure (3)

Question 1

12(b) motion

Answer 1

You’re attacking P’s claim saying there’s something wrong with it

Question 2

Lack of SMJ

Answer 2

Can be asserted at anytime

Question 3

When can you raise a lack of PJ, improper venue, insufficient service defense?

Answer 3

Must be asserted in D’s answer or it’s waived

Question 4

When can you raise a failure to state a claim, join a required party?

Answer 4

At anytime before the end of trial or it’s waived

Question 5

12(b) 6 motion

Answer 5

Failure to state a claim (even if it is true, there’s no relief)

Must be asserted B4 or @ trial

Question 6

Motion to strike

Answer 6

Scandalous
Irrelevant
Redundant

21 days after service

Question 7

Motion for a more definite statement

Answer 7

If vague or ambiguous

Question 8

Motion for summary judgment

Answer 8

No genuine dispute of material fact

30 days from close of discovery

Question 9

Is partial summary judgment allowed?

Answer 9

Yes

Question 10

JMOL

Answer 10

Looking at the evidence in the light of the non-moving party

No reasonable person could find for the non-moving party

-> after P’s case
-> after either party rests

Question 11

Renewed Mtn for JMOL

Answer 11

Verdict (no reasonable person could’ve reached it)

28 days

Renewed motion

Question 12

Mtn for relief from judgment

Answer 12

Mistake
Newly discovered Evidence
Fraud
(ALL WITHIN 1 YEAR)

Everything else within a reasonable amt of time

Question 13

Motion for new trial

Answer 13

Mistakes were made that resulted in unfair prejudice (would’ve changed the outcome)

-Improper jury instructions
-Juror misconduct
-Verdict against weight
-Erron. admit/exclus. evidence

Question 14

Remittitur

Answer 14

D’s request to reduce damages

Question 15

Newly discovered evidence

Answer 15

1) Discovered after the end of trial

2) Reasonably diligent in searching for evidence

3) Material to case

Question 16

Trial sus sponte

Answer 16

Can order a new trial as long as it’s within 28 days of final judgment

Question 17

Jury demand must be filed

Answer 17

14 days after last pleading served (usually an answer)

Question 18

Preserving right to jury trial in a removal action

Answer 18

Demand in st. court before removal

OR

Serve within 14 days after filing or being served

Question 19

Request for jury instructions

Answer 19

Must be filed by Close of Evidence

unless earlier, reasonable deadline set by court

Question 20

May request jury instructions after close of evidence if

Answer 20

1) Issue couldn’t have been reasonably anticipated

2) Court permits

Question 21

Providing proposed jury instructions

Answer 21

1) Inform parties b4 instructing jury & closing arguments

2) allow them to object outside of jury’s presence

3) can instruct anytime before discharge

Question 22

If a party failed to object to jury instructions @ trial

Answer 22

It can only be reviewed for plain error

Question 23

A jury will hear

Answer 23

Any claims based in law, no equitable claims

Question 24

If a claim is mixed

Answer 24

Must hear legal claims first, then a judge can hear equitable claims

Question 25

Preemptory challenges

Answer 25

Can discharge juror for any reason except (race, sex, nationality) *you get 3

Question 26

Challenging jurors for cause

Answer 26

Unlimited amt. (bias, unwillingness)

Question 27

Appellate court

Answer 27

Court dealing w/ issues of law NOT fact (unless erroneous)

Question 28

You must appeal within

Answer 28

30 days of final judgment and set up objections at trial to preserve appeal for later

Question 29

When can you appeal (generally)

Answer 29

When there's a final judgment OR Collateral order exception

Question 30

Collateral Order exception

Answer 30

Difference of opinion on controlling question of law Appeal may materially advance termination of litigation *10 days*

Question 31

Final judgment rule exceptions

Answer 31

In Certain Cases An Appeal Can Be Made Prematurely Injunction Certification Class action certification Appointment of receiver Admirality cases Collateral order doctrine Bankruptcy cases Mandamus Patent infringement

Question 32

Not appealable

Answer 32

Lack of jurisdiction Improper venue Failure to join a party

Question 33

Interluctory orders

Answer 33

Generally not immediately appealable

Question 34

Standards of review

Answer 34

De Novo Abuse of discretion Clearly Erroneous

Question 35

De Novo

Answer 35

Pure issues of law mistake

Question 36

Abuse of discretion

Answer 36

A mistake the court made

Question 37

Clearly erroneous test

Answer 37

Findings of fact mistake

Question 38

Writ of mandamus

Answer 38

Orders the court to refrain from doing something when no other adequate remedy, exceptional circumstances

Question 39

Erie Doctrine

Answer 39

Must be a diversity case Deals w/ choice of law

Question 40

When you have to choose between state & fed law

Answer 40

Apply state (SOL) UNLESS it's a fed proc. rule issue (FRCP or venue)

Question 41

If state A v. State B

Answer 41

Apply law where federal ct. sits / case is heard