Civil Procedure

Question 1

Names of witnesses are _____ protected by the work product doctrine.

Answer 1

never. Witness names are relevant to the claims and defenses of the parties and do not constitute work product, even if one party expended extraordinary time and money in identifying the witness.

Question 2

A nonresident of the United States may be sued in

Answer 2

any judicial district.

Question 3

A defending party may implied a nonparty if

Answer 3

the nonparty is or may be liable to the party for any part of a judgment that a plaintiff may recover against it.

Question 4

A person is immune from “tag” jurisdiction if

Answer 4

they are in the state solely to be a witness at a judicial proceeding.

Question 5

The Erie doctrine workflow is

Answer 5

(1) federal law or FRCP on point? apply if valid (FRCPs are always valid)
(2) If no federal law or FRCP on point, is the issue substantive or procedural? If substantive, apply state law, if procedural, apply federal law.

Question 6

Some classic examples of “substantive” issues for Erie doctrine purposes are

Answer 6

(1) statutes of limitations
(2) rules for tolling statutes of limitations
(3) choice of law rules
(4) elements of a claim or defense

Question 7

If an issue is not clearly substantive or procedural for Erie doctrine purposes, the three things a federal court looks at are

Answer 7

(1) outcome determinative test
(2) balance of the interests
(3) deter forum shopping

Question 8

A case may not be removed on the basis of DIVERSITY jurisdiction more than _______ after it was ________ unless the plaintiff has _______.

Answer 8

one year; filed/commenced; acted in bad faith.

Question 9

A defendant must file a notice of removal within _____ of receiving _______ that the case is or has become ______.

Answer 9

30 days; notice; removable.

**Watch out for an in-state defendant being dismissed that makes the case removable. The 30-day clock starts to run from the time that D gets notice of the dismissal, not from when D was originally served. This is still subject to the one-year limitation.

Question 10

If a later served defendant initiates timely removal, an earlier served defendant ______ join in the removal.

Answer 10

may. This is true even if the earlier-served defendant’s time for removal has expired.

Question 11

The time periods for rely may NEVER be extended for the following motions:

Answer 11

(1) renewed JMOL
(2) amend a judgment
(3) new trial
(4) relief from judgment

Question 12

A motion for a new trial must be filed within _______ of the entry of ______.

Answer 12

28 days; entry of judgment.

Question 13

A renewed JMOL must be filed within _______ of the entry of _______.

Answer 13

28 days; entry of judgment.

Question 14

A temporary restraining order may be issued for a maximum period of ______.

Answer 14

14 days. (but they can be renewed)

Question 15

The three requirements for a TRO are

Answer 15

(1) P states specific facts in an AFFIDAVIT or VERIFIED complaint that she will suffer IRREPARABLE harm
(2) P certifies in writing the efforts made to notify the adverse party and reasons why notice should not be required
(3) P provides security to pay for any damages incurred by the adverse party if the TRO was wrongful (post a bond)

Question 16

A defendant who was formally served with process must file an answer within ______ after ______.

Answer 16

21 days; service.

Question 17

A defendant who waives formal service must file an answer within _____ after the request for waiver was _______.

Answer 17

60 days; mailed to the defendant.

Question 18

If a pre-answer motion is made and the court denies or postpones the motion, the default is that the responsive pleading must be filed within ______ after the court’s action.

Answer 18

14 days.

Question 19

If the court grants a motion for a more definite statement, the answer is due within ______ after ___________.

Answer 19

14 days; service of the more definite complaint.

Question 20

A pleading may be amended _____ within ________ of its _______.

Answer 20

once; 21 days; service.

Question 21

If a pleading is one to which a response is required, it may be amended _____ within ______ after __________.

Answer 21

once; 21 days; service of the response.

Question 22

Initial discovery disclosures must be made within _________ of the ________ conference.

Answer 22

14 days; Rule 26(f) scheduling.

Question 23

The identity and report of an expert witness must be disclosed at least ________ before _______.

Answer 23

90 days; trial.

Question 24

If expert testimony is intended solely to rebut another party’s disclosure of expert testimony, it must be disclosed within ________ after ___________.

Answer 24

30 days; disclosure of the evidence being rebutted.

Question 25

A party must disclose witnesses she expects to call or will call at trial if the need arises at trial at least ________ before ______.

Answer 25

30 days; trial.

Question 26

A party must disclose witnesses whose testimony will be presented by deposition an the pertinent portions of the depo transcripts at least ________ before ______.

Answer 26

30 days; trial.

Question 27

A party must disclose a list of documents or exhibits she expects to offer or might offer if needed at least ________ before ______.

Answer 27

30 days; trial.

Question 28

A party who does not object to the pretrial disclosures of deposition testimony or to the admissibility of documents or exhibits within _______ after the _______ has _______ those objections.

Answer 28

14 days; disclosure; waived.

**Except as to objections of relevance under FRE 402 or prejudice under FRE 403.

Question 29

A party who has been served with a motion for sanction has ______ to withdraw or correct the matter with no penalty.

Answer 29

21 days. This is called Rule 11’s “safe harbor” provision. A party seeking sanctions MUST first allow the adverse party an opportunity to withdraw or correct.

Question 30

Failure to demand a jury trial within _______ after the filing of __________ constitutes a ______.

Answer 30

14 days; the last pleading directed to a jury-triable issue; waiver by that party of any right to a jury trial

Question 31

A voluntary dismissal by a plaintiff as a matter of RIGHT without PREJUDICE must be made before

Answer 31

defendant files an answer or motion for summary judgment.

Question 32

A motion for summary judgment can be filed _________ up to ______ after the close of _______.

Answer 32

at any time; 30 days; discovery.

**If the motion is premature (i.e. a lot of discovery left to be done), the court can defer ruling on it.

Question 33

A notice of appeal must be filed within ______ from the ________.

Answer 33

30 days; entry of the judgment appealed from.

Question 34

If a motion for a new trial or renewed JMOL has been made, a notice of appeal can be filed within _______ from ___________.

Answer 34

30 days; entry of an order based on such post-trial motions.

**A notice of appeal filed during pendency of the post-trial motion WILL become effective on final disposition of the motion by the court.

Question 35

The steps for analyzing personal jurisdiction are

Answer 35

(1) Long-arm

(2) Constitutionality

Question 36

The steps for analyzing the constitutionality of personal jurisdiction are

Answer 36

(1) identify the contacts: (a) purposeful availment, (b) foreseeable that D could be haled into court?
(2) identify the type of jurisdiction: (a) specific or (b) general
(3) fairness: (a) burden on D and witnesses; (b) forum’s interest; (c) P’s interest

Question 37

A corporation is “at home” in a forum and subject to general personal jurisdiction in

Answer 37

(1) every state in which it is incorporated; and

(2) the state in which it has its principal places of business

Question 38

A corporation’s principal place of business is located where

Answer 38

the corporations directors and officers “direct and control” the corporation’s activities.

Question 39

A judge will impose these type of sanctions as punishment for a party’s failure to comply with discovery rules

Answer 39

RAMBO sanctions:
• Establishment order (establish facts as true)
• Strike pleadings of disobedient party
• Disallow evidence from disobedient party
• Dismiss P’s case (if bad faith shown)
• Enter default judgment against P (if bad faith shown)

Question 40

Amended pleadings relate back (treated as if filed on same date as original) if they concern

Answer 40

the same conduct, transaction or occurrence as original pleading

Question 41

For supplemental jurisdiction to lie, the claim must have the same ________ as the original claim that invoked federal SMJ

Answer 41

a common nucleus of operative fact

Question 42

Non-federal, non-diversity claim that shares common nucleus of operative fact w/ claim invoking federal SMJ can be heard in federal court UNLESS

Answer 42

Asserted by plaintiff
In diversity case
Against a co-citizen

Question 43

Can a plaintiff remove to federal court if they are now a defendant on a counterclaim?

Answer 43

Nope. Never. Not a P.

Seriously, never.

Question 44

Any case can be removed if it meets requirements for federal SMJ. Two exceptions are:

Answer 44

1. If D is a citizen of the forum state, OR

2. It has been more than one year since case filed in state court

Question 45

A D can remove to federal court more than one year after the case was filed in state court only if

Answer 45

Plaintiff acted in bad faith to prevent removal

Question 46

A counterclaim is compulsory if it

Answer 46

arises from the same T/O as P’s original claim

Question 47

A counterclaim is permissive if it

Answer 47

does NOT arise from same T/O as P’s original claim

Question 48

A claim against co-party (crossclaim) MUST arise from

Answer 48

the same T/O

Question 49

A variance is proper if

Answer 49

the evidence presented at trial does not match what was in the pleadings*

*D has right to object at trial and have evidence excluded. But if he fails to do so, P can present evidence and later move for variance to conform pleadings to evidence presented at trial

Question 50

To change a defendant after statute has run, an amended pleading will relate back (i.e. be treated as if it was filed on same date as original) only if

Answer 50

(1) it’s same cause or T/O as original,
(2) new party knew of this case w/in 120 days of its filing, and
(3) knew that but for a mistake she would have been named originally.

Essentially, applies when P sued wrong defendant first but the correct defendant knew about it.

Question 51

Many P’s against one or more D’s can bring claims in the same case as long as the claims:

Answer 51

o Arise from same T/O

o Raise at least one common question

Question 52

A party is necessary if

Answer 52

(1) Without A, court cannot accord complete relief among existing parties (worried about multiple suits); OR
(2) A’s interest may be harmed if he is not joined (most typical on bar), or
(3) A claims interest that subjects a party (usually D) to risk of multiple obligations

Question 53

Joinder is feasible if

Answer 53

(1) there is PJ over new party, and

(2) joining new party will not defeat diversity jdix

Question 54

Joinder rules starting with “C” such as counterclaim and crossclaim are claims against

Answer 54

existing parties

Question 55

Joinder rules starting with I involve claims against

Answer 55

new parties to the case

Question 56

If D wants to shift his own liability to P to another party he should bring a

Answer 56

impleader claim*

*but note, he doesn’t have to. only compulsory claim is a compulsory counterclaim.

Question 57

An impleader claim is usually seeking one of two things:

Answer 57

(1) indemnity from third-party defendant, or

(2) contribution

Question 58

If D successfully impleads a party, that party becomes now known as a

Answer 58

third party defendant (3dPD)

Question 59

Steps for impleading a third party defendant:

Answer 59

(1) D files third party complaint naming third party defendant, and
(2) serves process on the 3dPD (so PJ necessary)

Question 60

After 3dPD is joined, plaintiff (can/cannot) assert claim against them, and 3dPD (can/cannot) assert claim against plaintiff

Answer 60

both can do either, as long as claims arise from same T/O

Question 61

A nonparty can bring an intervention as of right it

Answer 61

interest may be harmed if she is not joined and she is not adequately represented now

Question 62

A nonparty can bring a permissive intervention action if

Answer 62

A’s claim or defense and pending case have at least one common question*

*discretionary to court, but court will usually allow unless intervention will cause delay or prejudice to someone

Question 63

To certify a class, must show these four elements:

Answer 63

(1) Numerosity,
(2) Commonality,
(3) Typicality, AND
(4) Representation adequate

Question 64

Class actions must fit within one of three types:

Answer 64

(1) Prejudice: class treatment necessary to avoid harm either to class members or non-class party
(2) Injunction/Decl Judgment: Class seeks these remedies because D treated the class alike
(3) Damages: common questions predominate AND class action is superior method to handle dispute (ex: mass tort)*

*Type 3 Class: Damages are by far most popular on bar

Question 65

In a Type 3 (damages) class, the court must notify members that they are in a class. The notice must contain three pieces of info

Answer 65

(1) that they can opt out
(2) they’ll be bound if they don’t, and
(3) they can enter separate appearance through counsel

Question 66

Type 1 and 2 classes (do/don’t) require notice; Type 3 classes (do/don’t).

Answer 66

Type 1 and 2 DO NOT
Type 3 (Damages) DOES

Question 67

A class action will invoke diversity jurisdiction as long as

Answer 67

the representative is diverse from all defendants (and of course AiC exceeds $75k)

Question 68

An order that maintains the status quo until trial is a

Answer 68

preliminary injunction

Question 69

A court can issue a TRO ex parte only if

Answer 69

(1) Applicant files papers under oath clearly showing that if TRO is not issued she will suffer immediate and irreparable harm if she must wait until other side is hears, and
(2) applicant’s lawyer certifies in writing her efforts to give oral or written notice to D or D’s lawyer (or why such notice shouldn’t be required under circumstances)

Question 70

A court can issue a preliminary injunction ex parte when

Answer 70

Trick question. NEVER.

Question 71

The clerk of the court can enter a default judgment w/o judge’s involvement if

Answer 71

• D made no response at all
• Claim for certain sum of money
• Claimant gives affidavit of sum owed, AND
• D is not minor or incompetent

Question 72

If a judge holds a hearing to determine default judgment, D gets notice only if

Answer 72

he has appeared in the case

Question 73

The final pretrial conference order supersedes

Answer 73

the pleadings

Question 74

If a case involves both law and equity, what does the jury decide?

Answer 74

Facts underlying damages claim but not equity claim

*no Seventh Amendment right to jury in suits at equity

Question 75

Generally, if parties don’t object to jury instructions before jury charged they’ve waived argument on appeal unless

Answer 75

jury instruction contained plain error that effects substantial rights

Question 76

Remittitur occurs when

Answer 76

court finds damage award is so large that it shocks the conscience, so it gives P option of new trial or reduced award

Question 77

Additur occurs when

Answer 77

court finds damage award so low as to shock the conscience, so it gives D choice to pay greater damages or have new trial.*

*Additur is unconstitutional in federal court but valid in state court

Question 78

A motion for relief from order or judgment will be granted if

Answer 78

the evidence could not have been discovered with due diligence in time to move for a new trial (i.e. within 28 days after judgment)

Question 79

In non-jury trial, court of appeals will uphold questions of fact unless

Answer 79

findings clearly erroneous

Question 80

In jury trial, court of appeals will uphold findings on questions of fact unless

Answer 80

reasonable people could not have made that finding

Question 81

The content of jury instructions is revealed de novo, but a decision about whether to give a particular instruction is reviewed

Answer 81

for an abuse of discretion

Question 82

If the parties in the subsequent action are the same (or in privity), Issue preclusion will apply if

Answer 82

(1) The issue is the same in both actions
(2) case 1 had a valid, final judgment on the merits of that issue,
(3) same issue actually litigated and determined in case 1
(4) Issue was essential to the judgement in case 1

Question 83

Claim preclusion will apply if

Answer 83

(1) case 1 ended in valid final judgment on merits
(2) both parties must be the same (or in privity)
(3) Case 1 and 2 assert same claim (right to relief arising from a T/O)

Question 84

By and against whom can issue preclusion be asserted?

Answer 84

• can ALWAYS be asserted by someone who was party to case 1 or represented; can SOMETIMES (depending on state) be asserted by someone not a party.
• can only be asserted against someone who was a party to case 1 or was represented by a party (e.g. via class action)

Question 85

Timing issues (just tap)

Answer 85

D’s answer: 21 days after service
D’s answer after waiver of process: 60 days after waiver was MAILED
Responsive pleading after motion is denied: 14 days
Initial disclosures after rule 26(f) scheduling conference: 14 days
New trial, renewed JMOL: 28 days after entry of judgment
Expert identity and reports: 90 days before trial
Expert to rebut other expert: 30 days after first experts testimony is disclosed
Expected witnesses: 30 days before trial
Jury trial demand: within 14 days of last pleading on a jury triable issue
Objecting to docs and exhibits: within 14 days of disclosure, otherwise waiver except for relevance and prejudice

Question 86

If the parties in the subsequent action are not the same, nonmutual issue preclusion will apply if

Answer 86

(1) The standard requirements for collateral estoppel are met and
(2) it would not be unfair or inequitable to apply collateral estoppel

**note on fairness: almost always fair when used defensively, very rarely fair when used offensively