Civil Procedure

Question 1

What are the exceptions to diversity jurisdiction?

Answer 1

Probate and domestic relations actions

Question 2

What parties does the Bulge provision apply to?

Answer 2

• Third-party defendant who is joined under Rule 14

- Required party who is joined under Rule 19

Question 3

When must an appellate court agree to accept an interlocutory appeal?

Answer 3

When the trial court issues a certificate for interlocutor appeal stating that it involves 1) a controlling question of law and 2) that the immediate appeal may materially advance termination of the litigation

Question 4

What is true of service when the US is a defendant in a civil action?

Answer 4

Service must be made in the US Attorney General as well as the US attorney for the district in which the action has been filed

Question 5

When can a motion for judgment on the pleadings be pursued?

Answer 5

After the defendant has answered the complaint

Question 6

What is true when removal is sought solely based on diversity jurisdiction?

Answer 6

No defendant can be a citizen of the state in which the action was filed

Question 7

What are the exceptions to work product privilege?

Answer 7

Work product materials contain information not reasonably available by other means
The party would be substantially prejudiced if not allowed to access the materials

Question 8

Does waiver of service waive objection to personal jurisdiction or venue?

Answer 8

No

Question 9

If an action involves both legal and equitable claims and there are common factual issues, which claim must be heard first?

Answer 9

The jury must determine the legal claims first, and the court subsequently determines the equitable claims

Question 10

What are the three conditions required for federal court to have personal jurisdiction over the defendant under Rule 4(k)(2)?

Answer 10

• The plaintiffs claim must be based on federal law
• No state court can exercise personal jurisdiction over the defendant
• The exercise of jurisdiction must be consistent with the US Constitution and laws the defendant must have minimum contacts with the United States

Question 11

Must an expert employed in anticipation of litigation, who is not expected to be called as a witness at trial be identified?

Answer 11

No, absent exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means

Question 12

When can a motion for summary judgment be filed?

Answer 12

After discovery is complete

Question 13

Who has the burden of persuasion on a motion for summary judgment?

Answer 13

The movant.
Once the movant makes a prima facia showing that summary judgment is appropriate, the burden shifts to the opposing party to set for the specific evidence showing that existence of a genuine issue of fact for trial

Question 14

Is a party who is asserting a claim required to join other independent or alternative claims against its opposing party?

Answer 14

No the party is permitted to join claims but not compelled

However, res judicata concerns will often practically required joinder

Question 15

Can a court order, on its own initiative, a new trial for any reason that would justify granting a new trial on the motion of a party?

Answer 15

Yes, but the court must specify the reasons and its order

Question 16

Supplemental jurisdiction exists for diversity cases for which types of claims?

Answer 16

Cross-claims and compulsory counterclaims, when they arise out of the same common nucleus of facts

Question 17

In a civil trial, may a verdict be returned by a jury of fewer than six members?

Answer 17

Yes, if the parties so stipulate

Question 18

What is true when a plaintiff is claiming fraud or mistake?

Answer 18

The circumstances must be stated with particularity

Question 19

If a court renders a decision on final judgment with regard to one issue but leaves other issues open has there been a final judgment?

Answer 19

No. As a result, the decision is not appealable

Question 20

When may a plaintiff dismiss an action without court approval or the agreement of other parties?

Answer 20

Prior to the service of an answer or a summary judgment motion

Question 21

When must a party serve an answer or reply?

Answer 21

Within 21 days after being served

Question 22

When must a party make a demand for trial by jury?

Answer 22

Within 14 days after service of the last pleading

Question 23

Where is a partnership considered a citizen for diversity purposes?

Answer 23

A partnership is considered a citizen of each state in which each of its partners is domiciled

Question 24

When may a party appeal based on an order of class action certification?

Answer 24

If the party files a petition with the circuit clerk within 14 days after the order is entered
The court has discretion to deny the appeal

Question 25

Which interlocutory orders are available immediately as a matter of right?

Answer 25

An order regarding the injunction
An order and pointing or refusing to appoint a receiver
An order involving a controlling question of law for which there is substantial ground for difference or opinion

Question 26

What is a declaratory judgment?

Answer 26

A ruling in which the court tells the parties to a dispute with the rights, responsibilities, or obligations are, without awarding damages or ordering the parties to do anything.

Question 27

What are two exceptions to the voluntarily present service rule?

Answer 27

The plaintiff fraudulently bring the defendant into the state for the purpose of serving process
The defendant is merely passing through the state to attend other judiciary proceedings

Question 28

When must a notice of appeal be filed with a district clerk?

Answer 28

Within 30 days after the judgment or order appealed from is entered

Question 29

What is an exception to the dormant commerce clause?

Answer 29

Explicit permission by Congress to regulate through a certain method
When the state is a market participant (buyer or seller), as opposed to a market regulator

Question 30

May Congress tax goods exported to foreign countries?

Answer 30

No, under the Export Taxation Clause, a tax or duty that falls in goods during the course of exportation or on services or activities closely related to the export process is prohibited

Question 31

Is the court allowed to order a responsive time earlier or later than would typically be required?

Answer 31

Yes.

Question 32

What is true about the date on which the plaintiff files the waiver form with the court, if the defendant waives service?

Answer 32

This is the date deemed as the date of service of process

Question 33

What is required for a motion to compel physical examination?

Answer 33

Good cause (satisfied if the plaintiff has put his physical condition in controversy

Question 34

When must a party make a demand for jury trial?

Answer 34

Within 14 days after service of the last pleasing directed to the issue that is sought to be tried by a jury

Question 35

What types of claims require special pleading?

Answer 35

Fraud or mistake

Special damages

Question 36

Do counterclaims have to meet the amount in controversy requirement?

Answer 36

Yes: counterclaim is permissive
No: counterclaim is compulsory
(Supplemental jurisdiction rules)

Question 37

What is the final judgment rule?

Answer 37

Resolution of ALL claims against ALL parties on the merits

Question 38

What is required for removal?

Answer 38

Filing of notice to remove within 30 days after receipt by or service
All defendants who have been properly joined and served are required to join in and consent
The case could have been originally properly brought in district court
For diversity cases, no defendant can be a citizen of the state in which the action was filed

Question 39

Where is venue proper in an action against an officer or employee of the United States acting in an official capacity or under color of legal authority?

Answer 39

Where the defendant in the action resides
Where a substantial part of the event or omissions occurred
Where the plaintiff resides, if no real property is involved in the action

Question 40

When does federal common law apply in diversity cases?

Answer 40

When a “uniquely federal interest” is at stake and a significant conflict exists between that interest and operation of state law

Question 41

What laws can service of process follow?

Answer 41

The federal Rules of Civil Procedure
State law in the state with the District Court is located
State law where service is made

Question 42

What is true regarding verdicts in error?

Answer 42

If a court believes that the jury has returned an erroneous verdict because it did it properly follow its instructions, the court may set aside the verdict and ask the jury to reconsider the issue or alternatively order a new trial

Question 43

What mandatory disclosures must be made before trial?

Answer 43

Initial disclosures
Disclosures of expert testimony 90 days before trial
Pre trial disclosures 30 days before trial

Question 44

What review standard are sanctions subject to?

Answer 44

Abuse of discretion

Question 45

What is required for pre-judgment attachment of property in a state?

Answer 45

That state must have personal jurisdiction (minimum contacts) with the defendant

Question 46

Does TRO require notice provided for the other side?

Answer 46

No, but the moving party must establish, under written path, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition
And the movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required

Question 47

What is true regarding affirmative defenses in answers?

Answer 47

They must be stated or that defense is waived

Question 48

What suffices as “on the merits” for res judicata purposes?

Answer 48

Judgment entered after a full trial, summary judgment, judgment as a matter of law, and default judgment where the booth has jurisdiction over the subject matter and personal jurisdicton over the parties

Question 49

What happens if there is a lack of unanimity when jurors are polled?

Answer 49

Court may order the jury to continued deliberations or may order a new trial

Question 50

What standard should be applied for factual findings?

Answer 50

Clearly erroneous

Question 51

May a party make a general denial of all allegations in good faith?

Answer 51

Yes

Question 52

Does a defendant have to file an answer while another motion is pending?

Answer 52

No. The defendant has 14 days after the court’s denial to answer.

Question 53

When is dismissal appropriate as a sanction?

Answer 53

When party’s conduct is serious, repeated, extreme, and otherwise inexcusable.

Question 54

Where is venue proper under a federal tort claims act?

Answer 54

Either the judicial district where the plaintiff resides or in the judicial district where the act or omission occurred

Question 55

If a judgment has been issued by federal court, which state’s law should a future court consider in deciding claim preclusion

Answer 55

The court in the state where the federal court is located would have given the judgment

Question 56

Can parties waive subject matter jurisdiction?

Answer 56

No.

Question 57

When must initial disclosures be made?

Answer 57

Within 14 days after the parties’ discovery conference

Question 58

What must be made before requesting court sanctions for failure to disclose?

Answer 58

Requesting party must make a motion to compel

Question 59

When can the plaintiff request the court clerk to enter a default judgment (without applying to the court)?

Answer 59

When it is for a sum certain

Question 60

Who has the burden regarding the existence of jurisdiction?

Answer 60

Plaintiff has the burden of proving jurisdiction

Question 61

How long may an interlocutory injunction remain in effect?

Answer 61

14 days, unless good cause exists or by consent of the adversary

Question 62

What must be raised in a pre-answer motion or it’s waived?

Answer 62

Lack of personal jurisdiction, improper venue, insufficient process, insufficient service of process

Question 63

What is required for 23(b)(3) certification?

Answer 63

Questions of law or fact common to the class members predominate over any questions affecting only individual members, and a class action is the superior method in bringing about fair adjudication

Question 64

Is additur allowed in federal court cases?

Answer 64

No. The court only has the option of ordering a new trial. If the court determines that a verdict is excessive, it may offer a reduction of the verdict called remittitur

Question 65

What is guaranteed by the privileges and immunities clause of the 14th amendment?

Answer 65

The right to travel freely among states

Question 66

Who must service be completed by?

Answer 66

Any nonparty who is at least 18 years old.

Question 67

What is a Rule 23(b)(1) class certification?

Answer 67

Class is certified because prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or impair interests of class members

Question 68

What is Rule 23(b)(2) certification?

Answer 68

Class is certified is the class shares a general claim of equitable relief against opposing party?

Question 69

What are the requirements for class actions under CAFA?

Answer 69

Class action involves at least 100 members
Primary defendants are not government entities
Not securities cases
Amount in controversy exceeds $5 million
Minimum diversity exists: any plaintiff is from different state as any defendant

Question 70

When must pretrial disclosures happen?

Answer 70

At least 30 days before trial, unless the court orders otherwise

Question 71

Can a case that originated in federal court be remanded?

Answer 71

No

Question 72

For depositions, leave of court must be obtained to:

Answer 72

Exceed the 10-deposition limitation
Depose a witness a second time
Depose a person before the deposing party has complied with its initial disclosure requirements under 26(a)

Question 73

Is a defendant constitutionally entitled to be represented at trial by a qualifier attorney of the defendant’s choice, where that attorney is not provided by the state?

Answer 73

Yes.

Question 74

What is a compulsory counterclaim?

Answer 74

A claim arising out of the same transaction or occurrence as the plaintiff’s claim

Question 75

What is required for a trial to be on the merits?

Answer 75

The decision must have been made in consideration of the merits of the claim or defense. This includes judgments entered after a full trial, summary judgment, judgment as a matter of law, and default judgment where the court has jurisdiction over the subject matter and personal jurisdiction over the parties

Question 76

What is the process for determining whether an issue involves substance or procedure?

Answer 76

1. Determine whether conflict exists before state and federal law
2. Ask if whether a valid federal statute exists. If so, apply it.
3. If not, ask whether failure to apply state law will lead to different outcomes. If yes, apply state law, unless affirmative countervailing federal interests are at stake that warrant application of federal law.

Question 77

Does a federal district court have an inherent power to assess attorney’s fees as a sanction?

Answer 77

Yes, for defendant’s bad behavior. This is allowed even if the law of the forum state provides that attorney’s fees may not be awarded to a successful party

Question 78

How many days does a party have to correct Rule 11 sanctions?

Answer 78

21 days

Question 79

What is an involuntary dismissal presumed to be?

Answer 79

With prejudice and operates as an adjudication on the merits. (The dismissal based on lack of jurisdiction, improper venue, or failure to join an indispensable party, however, does not operate as an adjudication on the merits)

Question 80

When can a defendant move to dismiss an action by a plaintiff?

Answer 80

If the plaintiff fails to prosecute or to comply with the rules or a court order

Question 81

What types of involuntary dismissal are without prejudice?

Answer 81

Lack of jurisdiction, improper venue, failure to join a necessary party