Civil Procedure

Question 1

What are the three things needed for a court to hear a case?

Answer 1

1) Subject Matter Jurisdiction - the power of the court to here a “kind” of case;
2) Personal Jurisdiction - the power of the court to decide the rights and liabilities of a defendant; and
3) Venue - Determining the appropriateness of deciding the case in a particular court which has subject matter jurisdiction and personal jurisdiction over the defendant.

Question 2

What kind of subject matter jurisdiction do federal courts have? What about state courts?

Answer 2

Federal courts are courts of LIMITED JURISDICTION, where as state courts are courts of unlimited jurisdiction.

Exam Tip: For the MBE, assume that state courts have jurisdiction over any kind of case UNLESS you are provided with a statute that specifically says otherwise.

Question 3

What must be done to get subject matter jurisdiction?

Answer 3

The basis for subject matter jurisdiction must be AFFIRMATIVELY PLEADED in every case. If challenged, must prove that there is a basis for SMJ.

Question 4

Can SMJ be waived?

Answer 4

NO, SMJ can never be waived.

Question 5

How is SMJ objected to?

Answer 5

Lack of SMJ can be raised by ANY PARTY at ANY TIME, including by the plaintiff. Meaning that it can even be brought for the first time on appeal.

Question 6

What is federal question jurisdiction?

Answer 6

This is a type of SMJ that exists for a claim that arises under federal law.

Question 7

What must be about a complaint for federal question jurisdiction?

Answer 7

Plaintiff’s claim must be based on federal law, thus a “WELL-PLEADED COMPLAIN.” Look to the face of the complaint here.

NOTE: Presence of a federal defense does NOT matter.

Question 8

Is there a federal question when a plaintiff is suing to enforce a contract that can’t be carried out under federal law?

Answer 8

No. This is the Mottley case. The claim is for specific performance of a contract, thus the claim arises under state law.

Federal law is only raised by the defendant’s argument (defense) against enforcement of the contract and NOT by the plaintiff’s complain.

Question 9

How is diversity jurisdiction established?

Answer 9

This is another type of SMJ.

Arises in cases between citizens of different states OR citizens of a state and a foreign country, if the amount in controversy EXCEEDS $75,000 (so $75,000.01 is good).

EXCEPTION: PROBATE AND DOMESTIC RELATIONS (divorce, alimony, and child custody) actions CANNOT BE BROUGHT in federal court under diversity jurisdiction.

Question 10

What kind of diversity is required?

Answer 10

COMPLETE DIVERSITY (generally)

EVERY citizenship represented on the plaintiff’s side of the case must be different than EVERY citizenship on the defendant’s side.

Does NOT mean every plaintiff must be diverse from every other plaintiff or that the defendant must be diverse from every other defendant.

MUST ONLY BE COMPLETE BETWEEN PLAINTIFFS AND DEFENDANTS.

Question 11

Is there an exception to the complete diversity requirement?

Answer 11

Yes, MINIMAL DIVERSITY.

Provided by a few statutes. Exists when any one plaintiff is diverse from any one defendant.

Minimal diversity is permitted in the FOLLOWING CIRCUMSTANCES:

1) Federal Interpleader Act;
2) Class actions worth more than $5,000,000; AND
3) Interstate mass torts (e.g., airline crash).

Question 12

When is diversity determined?

Answer 12

Diversity must exist when the COMPLAINT IS FILED. Does NOT matter that diversity did not exist when the cause of action took place. Does NOT matter that diversity no longer existed when the case came to trial.

Question 13

How is citizenship determined?

Answer 13

1) Individuals - state or country of domicile. Domicile is a permanent residence (meaning residence + intent to remain). YOU CAN ONLY HAVE ONE DOMICILE at a time.
2) Aliens - Diversity jurisdiction exists for controversies between a citizen of a state and a citizen of a foreign country.
3) Representative parties - Generally, the citizenship of the representative party controls. However, there is an EXCEPTION for legal representatives of a decedent’s estate (e.g., executor). The citizenship of the decedant controls. ALSO, the citizenship of an infant/incompetent person controls in the case of a guardian representative.
4) Class actions - Citizenship of the NAMED parties counts. Class members not named may join without regard to citizenship.
5) Corporations - Citizen of the state, states, or countries in which it is incorporated AND the state or country of its principle place of business (i.e., the “nerve center,” where its executive offices are located. Be sure to consider EVERY state where the corporation has citizenship.
6) Partnerships and Unincorporated Associations - Citizen of EVERY state of which its members are citizens. Applies to unions, trade associations, partnerships, and limited partnerships.

Question 14

How are actions that create or destroy diversity treated?

Answer 14

PERMITTED SO LONG AS they are not done solely for that purpose–MUST BE GENUINE.

Moving - permitted so long as the person is really changing their domicile, not just as a sham to affect diversity.

Assignment of a claim - permitted so long as the assignment is real and not collusive.

Partial Assignments of a claim for debt collection - Does NOT affect citizenship if the assignor retains an interest in the claim. Assignor’s citizenship will count for purposes of diversity.

Question 15

What is the amount in controversy requirement for diversity? How is it met?

Answer 15

Must EXCEED $75,000, exclusive of interest and costs. ONLY relevant in a diversity case, if not diversity, no AIC requirement.

General Rule: ANY GOOD FAITH ALLEGATION WILL SUFFICE.

Case will ONLY be dismissed for failure to meet the AIC when it appears to a LEGAL CERTAINTY that recovery in excess of $75,000 cannot be held.

Question 16

Can smaller claims be added up to meet the AIC?

Answer 16

Yes, this is calculating the smaller claims in the AGGREGATE.

1) ONE PLAINTIFF v. ONE DEFENDANT - Plaintiff can aggregate ALL of his claims against the defendant to meet the AIC.
2) ONE PLAINTIFF v. MULTIPLE DEFENDANTS - plaintiff generally CANNOT add up all his claims against both defendants. The claims against EACH defendant must meet the AIC requirement.
3) MULTIPLE PLAINTIFFS - Generally, each plaintiff must meet the AIC requirement. However, SUPPLEMENTAL JURISDICTION saves the day. When one P has a claim exceeding $75,000, the claims of te other Ps can be heard if they (1) ARISE OUT OF THE SAME TRANSACTION OR OCCURRENCE, AND (2) COMPLETE DIVERSITY IS MAINTAINED. Further, when one P has a claim in excess of $75,000, the P can join claims against other defendants regardless of amount if the claims against ALL the defendants ARISE OUT OF THE SAME TRANSACTION OR OCCURRENCE AND COMPLETE DIVERSITY IS MAINTAINED.

Question 17

Do counterclaims have to meet the AIC requirement of $75,000?

Answer 17

1) IF COMPULSORY - NO;

2) IF PERMISSIVE - YES

Question 18

What is supplemental jurisdiction?

Answer 18

Allows a federal court with subject matter jurisdiction over a case to hear additional claims over which the court would not independently have jurisdiction. ALL the claims must be a part of the same case or controversy.

Claims constitute the same case or controversy IF they arise out of a COMMON NUCLEUS OF OPERATIVE FACT (meaning they all arise out of the same transaction or occurrence.

Question 19

How is supplemental jurisdiction had in a federal question case?

Answer 19

The issue here is whether a federal court can hear a state-law claim. The exercise of the power to hear the case is DISCRETIONARY with the trial court here. Basically, supplemental jurisdiction works for federal question cases across the board.

Question 20

When is supplemental jurisdiction had in a diversity jurisdiction case?

Answer 20

COMPULSORY COUNTERCLAIMS - if compulsory (arises out of the same transaction or occurrence as the main claim), then there is supplemental jurisdiction. Compulsory claims can be heard even if it does not meet the jurisdictional amount.

PERMISSIVE COUNTERCLAIMS - These are ones that do NOT arise out of the same transaction or occurrence. These can ONLY be heard IF it independently satisfies diversity jurisdiction.

CROSS-CLAIMS - These are claims by the plaintiff against another plaintiff or defendant against another defendant. Supplemental jurisdiction APPLIES IF the cross-claim and main claim SHARE A COMMON NUCLEUS OF OPERATIVE FACT (they always will). Does NOT matter that the co-plaintiffs or co-defendants are not divers or that the cross-claim is worth less than $75,000+.

MULTIPLE PLAINTIFFS / PERMISSIVE JOINDER - If the claim of one diverse plaintiff against the defendant satisfies the jurisdictional amount, other diverse plaintiffs who have claims against the defendant sharing a COMMON NUCLEUS OF OPERATIVE FACT (same transaction or occurrence) can also be heard even if their claims do NOT satisfy the jurisdictional minimum.

NOTE: Remember that there is also a statute that allows federal subject matter jurisdiction over class actions wherein the total amount in controversy exceeds $5,000,000, so long as there is minimal diversity within one plaintiff and one defendant.

Question 21

When is Supplemental Jurisdiction NOT permitted?

Answer 21

In all of these claims, complete diversity must be maintained and the AIC must be met:

1) Claims by plaintiffs against IMPLEADED THIRD-PARTY DEFENDANTS under rule 14;
2) Claims by plaintiffs against ADDITIONAL DEFENDANTS joined as NECESSARY PARTIES under Rules 19 and 20;
3) Claims by PLAINTIFF INTERVENORS under Rule 24; AND
4) Claims by plaintiffs joined INVOLUNTARILY under Rule 19.

Question 22

T/F - Supplemental jurisdiction establishes the court’s power to hear additional claims; whether the court exercises that power is up to its sound discretion.

Answer 22

True

Question 23

What is removal? What is transfer?

Answer 23

Removal moves a case from state court to federal court.

Transfer moves a case from federal court to federal court.

NOTE: There is not procedure to remove a case from federal court to state court. Federal court can abstain from hearing the case (narrow).

Question 24

When is removal proper?

Answer 24

ONLY if the case COULD HAVE BEEN BROUGHT ORIGINALLY IN FEDERAL COURT.

ONLY DEFENDANTS (not plaintiffs) MAY REMOVE. ALL defendants must consent to removal.

Question to Ask: If the plaintiff had sued in federal court in the first place, would the federal court have had subject matter jurisdiction?

Question 25

Is a well-pleaded complaint needed for removal for a federal question?

Answer 25

YES. If the well-pleaded complaint discloses that the plaintiff has a federal claim, then the defendant may remove to federal court. If the plaintiff’s claim arises under state law, defendant may not remove even though defendant has a federal defense.

Question 26

When is removal proper for diversity purposes?

Answer 26

ONLY IF:

1) There is COMPLETE DIVERSITY;
2) The amount in controversy exceeds $75,000; AND
3) THE CASE IS BROUGHT IN A STATE WHERE NO DEFENDANT IS A CITIZEN.

ONE-YEAR LIMIT ON REMOVAL - must remove within one–year of the commencement of the action in state court, UNLESS the plaintiff has acted in BAD FAITH to make the case non-removeable.

Question 27

What are the procedural requirements to remove?

Answer 27

A NOTICE OF REMOVAL IS FILED IN THE FEDERAL COURT AND A COPY IS SENT TO THE STATE COURT.

When notice is filed, the case is removed automatically and instantly; once a copy of the notice is filed with the state, the jurisdiction of the state court ceases.

Question 28

What happens if removal is improper?

Answer 28

Plaintiff can file a petition for REMAND. Federal court holds hearing to determine whether removal is proper.

1) If Proper - petition is denied - case stays in federal court;
2) If NOT Proper - petition is granted - case goes back to state court.

Question 29

What is personal jurisdiction? How is it established?

Answer 29

Concerns the power of the court to adjudicate the rights and liabilities of the defendant. Federal courts use the long-arm statutes of the states in which they sit. Long-arm statutes are the chief means of asserting PJ over out-of-state defendants.

Every PJ issue involves two questions that must both be addressed:

1) Has the particular basis for exercising PJ over an out-of-state defendant been authorized by statute or by rule of court?
2) Is the particular basis for exercising PJ permitted by the federal constitution?

Question 30

What are the types of personal jurisdiction?

Answer 30

1) In Personam Jurisdiction (against the person);
2) In Rem (against the thing); and
3) Quasi-In Rem (sort of against the thing)

Question 31

What is the constitutional aspect of personal jurisdiction?

Answer 31

Due process requires that there be MINIMUM CONTACTS between the defendant and the forum state, such that it is consistent with traditional notions of FAIR PLAY AND SUBSTANTIAL JUSTICE to sue the defendant here.

Basic Question: Is it fair to sue the defendant here?

Question 32

What establishes minimum contacts?

Answer 32

Courts look for A PURPOSEFUL AVAILEMENT BY THE DEFENDANT of the protections of the forum’s law. Contacts between the forum and the plaintiff do NOT suffice.

Question 33

Can PJ be waived?

Answer 33

Unlike SMJ, PJ CAN BE WAIVED. NOTE: PJ isn’t waived by solely appearing to contest personal jurisdiction.

VOLUNTARILY LITIGATING ON THE MERITS waives any objection to the lack of PJ (i.e., a general appearance). A defendant waives any objection to lack of personal jurisdiction by voluntarily litigating before raising the objection.

Question 34

When does a defect in personal jurisdiction have to be raised?

Answer 34

THE FIRST OPPORTUNITY OR IT IS WAIVED. First opportunity means a pre-answer motion to dismiss if the defendant chooses to file one, OR the answer if the defendant chooses not to file a pre-answer motion.

Question 35

When can the federal court assert broader personal jurisdiction than state courts?

Answer 35

1) Federal Interpleader Act (“statutory interpleader”) - authorizes NATIONWIDE service of process; OR
2) The Bulge Provision of the Federal Rules - authorizes service anywhere within 100 miles of the federal courthouse, even if in another state, in TWO SITUATIONS: (a) impleading a third-party defendant under Rule 14; OR (b) joining necessary defendants under Rule 19.

Question 36

What is in personam jurisdiction?

Answer 36

Federal courts follow the personal jurisdiction law of the states in which they sit.

GENERAL in personam jurisdiction – the defendant can be sued on any claim whatsoever, even if it is unrelated to the defendant’s contacts with the forum state.

SPECIFIC in personam jurisdiction - the long-arm statute; only applies when the dispute arises out of that contact with the forum.

Question 37

What are the bases for General In Personam Jurisdiction for an individual?

Answer 37

1) Physical Presence - service of process on the defendant while he is physically present in the state. EXCEPTION when the defendant was in the state ONLY TO ANSWER a summons or was brought there by FORCE OR FRAUD;
2) Domicile - Independent of physical presence. Suffices even if the defendant is not in the state when he is served.
3) Consent (by representative OR by not objecting) - Can be express or implied. Can be given by contract or by appointing an in-state agent for receiving service of process.

Question 38

What is the basis for General In Personam Jurisdiction for Corporations?

Answer 38

Law changed in 2014.

OLD RULE - DOING BUSINESS IN THE STATE (substantial, continuous, and systematic.

NEW RULE - Supreme Court has held that substantial and continuous in-state activity DOES NOT give that state jurisdiction over a foreign corporation for claims having no territorial affiliation or connection with the state.

GENERAL IN PERSONAM JX reaches ONLY those corporations that are “AT HOME” in the state. THIS INCLUDES:

1) Corporation that has been INCORPORATED in the state; AND
2) Corporation with its PRINCIPLE PLACE OF BUSINESS in the state (executive offices / nerve center).

SIMPLY DOING BUSINESS IS NOT ENOUGH TO GIVE RISE TO GENERAL PERSONAL JURISDICTION IF THE CLAIM IS WHOLLY UNRELATED TO THE IN-STATE ACTIVITY.

Question 39

What is Specific In Personam Jurisdiction?

Answer 39

Jurisdiction through a long-arm statute. Gives courts in personam jurisdiction over out-of-state defendants but ONLY applies to the particular transaction in the state. JURISDICTION IS SPECIFIC TO THE IN-STATE ACTIVITY.

Question 40

What are some common bases for Specific In Personam Jurisdiction?

Answer 40

1) Any act or omission in the state causing injury to personal property here or elsewhere;
2) Any act or omission outside the state causeing injury to personal property here, provided that the defendant conducted activities here or introduced goods into the flow of commerce;
3) Any claim arising out of a contract to perform services in the state or to pay someone in the state to perform services elsewhere;
4) Any claim arising out of a contract to ship goods to or from this state, or arising out of the shipment of such goods;
5) Any claim regarding local property;
6) Any action against a director or officer of a domestic corporation;
7) Any contract of insurance where the plaintiff is a resident of this state where the claim arose or the event giving rise to the claim took place.

EXAM TIP: Almost everything is covered by a state’s long-arm statute, so long as the claim ARISES OUT OF THE TRANSACTION INVOLVING THAT STATE.

Question 41

What is In Rem Jurisdiction? Quasi-In-Rem Jurisdiction?

Answer 41

Applies against any kind of property, real or personal, so long as the property is located in THE FORUM STATE (i.e., state has physical power over the property).

Quasi-In-Rem Jurisdiction - Tries to use in-state property as a basis for forcing an out-of-state defendant to litigate an unrelated claim. Basically, the in-state property is seized. SUBJECT TO THE SAME MINIMUM CONTACTS TEST AS IN PERSONAM JURISDICTION.

Question 42

Explain Notice and Service of Process.

Answer 42

Service of Summons - on the defendant while the defendant is in the jurisdiction establishes physical presence in the jurisdiction and gives the defendant notice of the action. Personal service is the type of service of process used to assert in personam jurisdiction. Should also be used for in rem and quasi-in-rem actions when the identity of an interested party is known.

Federal Rules authorize service in accordance with state law where the federal court sits. Federal Rules also provide their own means of service of process:

1) Personal delivery;
2) Leaving a summons at the defendant’s dwelling house or usual place of abode with a person of suitable age and discretion;
3) Delivery of the summons to an authorized agent (normally all businesses have agents according to state law); AND
4) For persons in foreign countries - service can be made by REGISTERED MAIL, return receipt requested. Service by mail is generally NOT accepted for service of process UNLESS state law specifically so provides.

Question 43

Special Rules for Service of Process:

Answer 43

1) Infant - service to the infant AND on the parent or guardian is required;
2) Adjudicated Incompetent Person - Service must be made on the incompetent AND her guardian;
3) Partnerships - Service on a partnership, an attorney in fact, OR an authorized agent works;
4) Corporations - Service must be on an officer, director, managing agent, OR an agent appointed for receiving service of process (foreign corporations doing business in the state MUST have one).
5) Non-Resident Motorists - For claims arising out of in-state accidents. Under state law, a state official is appointed as the agent of the non-resident motorist.

Question 44

How is service of process made for In Rem and Quasi-In-Rem actions?

Answer 44

A DILIGENT EFFORT must be made to locate all claimants to the property. If they cannot be located, then notice by publication is permitted.

Notice by publication is NOT sufficient if the names and addresses of the claimants can be discovered with REASONABLE EFFORT.

Question 45

How is proper venue determined? How must it be objected to?

Answer 45

The question is whether the particular court is the proper place to hear the case. DEFENDANT’S RESPONSIBILITY IS TO OBJECT IF VENUE IS IMPROPER. FAILURE TO DO SO RESULTS IN WAIVER.

Under Federal Law, the claim of improper venue must be raised at the FIRST OPPORTUNITY (either a pre-answer motion to dismiss if the defendant chooses to file one, OR the answer, whichever comes first.

Question 46

When is venue proper?

Answer 46

Venue is proper in a district:

1) Where ANY DEFENDANT RESIDES, if ALL defendants reside in the same state;
2) Where the CLAIM AROSE (substantial part of events or omissions occurred OR substantial part of the property is located;

OR

1) If neither of the above, federal venue is proper in ANY district where the defendant can be served.

NOTE: For federal venue, the plaintiff’s residence does NOT count.

Question 47

Where does the defendant “reside” for the purposes of venue?

Answer 47

Individuals - domicile

Business Entities - district in which personal jurisdiction exists.

Question 48

T/F - For a case begun in state court and removed to federal court, venue is automatically proper in the federal district where the state court sits, even if that would otherwise not be so.

Answer 48

True.

Question 49

Is proper venue needed upon transfer?

Answer 49

Generally, transfer is only to a district with proper venue.

EXCEPTION: Transfer to a district without proper venue may occur when ALL parties CONSENT.

A suit brought in a district WITH PROPER VENUE may be transferred for convenience to another district with proper venue.

A suit brought in a district WITHOUT PROPER VENUE may be transferred to a district with proper venue, rather than dismissal.

Question 50

How is choice of law determined on transfer?

Answer 50

If suit was brought in a district with PROPER VENUE and the case is transferred to another district, the law of the TRANSFEROR FORUM controls.

If suit was brought in a district that LACKED PROPER VENUE, the law of the transferee district court controls.

Question 51

Explain The Erie Doctrine and its effect on choice of law.

Answer 51

ERIE says that when federal courts hear state claims, they apply STATE SUBSTANTIVE LAW. Most common in diversity cases. Also applies when a federal court hearing a federal claim chooses hear a related state claim arising from the same facts.

Question 52

What does “state substantive law” include?

Answer 52

1) Substantive rules on what must be proved to win a case and what defenses may be asserted;
2) Statutes of limitation on state causes of action;
3) The burdens of proof on state claims or defenses; AND
4) State rules on choice of law.

Question 53

What procedural rules apply for state law claims in federal court?

Answer 53

FRCP ALWAYS APPLIES IN FEDERAL COURT.

Question 54

What happens when there is no federal statute or rule on point?

Answer 54

Then the court must determine whether the matter is substantive or procedural by consulting the TWIN AIMS OF ERIE:

1) To avoid forum shopping; AND
2) To avoid the inequitable administration of justice.

APPLICATION:

1) If the choice of the procedure would be outcome determinative (change the result), the federal court should usually apply STATE LAW to prevent forum shopping.

Question 55

T/F - The role of the jury in a federal court is ALWAYS determined by federal law.

Answer 55

True.

Question 56

What is Federal Common Law? What is its priority?

Answer 56

Judge-made federal law.

Overrides inconsistent state or local law. Federal courts make federal common law only when they encounter important federal interests that are not covered by statute.

EXAMPLES - Federal Common Law applies to:

1) Boundary disputes between states; AND
2) Claim preclusion

Question 57

How is applicable state law determined?

Answer 57

Federal courts:

1) Follow the precedent form the highest court in the state;
2) If there is no precedent, federal court predicts how the highest state court would rule; AND
3) Federal court gives respectful attention to the decisions of lower state courts (not binding precedence).

Question 58

When has a proceeding commenced?

Answer 58

1) Federal civil action is begun by filing a complaint with the court clerk.
2) For DIVERSITY ACTIONS, state law controls when an action has begun.

Question 59

What are the three types of pleadings?

Answer 59

1) Complaint - used to state a claim for relief. The plaintiff or the defendant may file a claim against a co-party, called a cross-claim complaint. A defendant who impleads a third=party defendant files a third-party complaint.
2) Answer - filed by the party against whom a claim is made. It may contain responses to the allegations of the complaint, affirmative defenses, and counterclaims.
3) Reply - used by the plaintiff to answer a counterclaim.

Question 60

Is recovery limited to what is claimed in the claim for relief?

Answer 60

Recovery is not limited by the claim for relief as stated in the complaint, except for default judgments.

Question 61

What must a pleading contain?

Answer 61

1) Need not detail the facts of the plaintiff’s case or spell out the legal theory;
2) ONLY must give FAIR NOTICE of the pleader’s CONTENTION.

RULE: All that is required is a SHORT AND PLAIN STATEMENT OF THE CLAIM.

Question 62

What is a special pleading? When is one required?

Answer 62

One stated with particularity/specificity. No particular form of words. Types of claims that require special pleadings are:

1) Fruad;
2) Mistake; and
3) If Special Damages are involved (damages that do not ordinarily result from the wrong alleged (missed business deal)).

Question 63

T/F - Recent cases in the Supreme Court held that notice pleading requires that the allegations in the complaint state a PLAUSIBLE case for recovery.

Answer 63

True.

Allows judges to dismiss, before discovery, complaints that they think are obviously unfounded.

Question 64

What are the motions in defense of a complaint? Explain each.

Answer 64

1) Motion to dismiss - see the next card;
2) Motion for judgment on the pleadings - Rarely encountered, but appropriate when the pleadings completely agree about the facts (no material disagreement - if there was, you would move for summary judgment);
3) Motion for a more Definite Statement - Asks that a pleading be made more specific (judges usually disfavor this);
4) Motion to Strike - Can be used to delete from pleadings scandalous or prejudicial matters that are NOT RELEVANT TO THE CASE AT HAND. Also used by the plaintiff to strike a legally invalid defense.

Question 65

When can a Motion to Dismiss be used?

Answer 65

May be used to raise defenses of:

1) Lack of Subject Matter Jurisdiction;
2) Lack of Personal Jurisdiction (including defects in service of process);
3) Improper venue;
4) Failure to state a claim upon which relief can be granted;
5) Failure to join a necessary party; and
6) Forum non conveniens.

Claim of no personal jurisdiction or a claim of improper venue must be made at the FIRST OPPORTUNITY (the answer or a pre-answer motion to dismiss).

LACK OF SMJ CANNOT BE WAIVED. Can be raised by any party at any time, including for the first time on appeal or by the court itself.

MOST CLAIMS ARE WAIVED IF NOT TIMELY RAISED.

Question 66

What is an answer? How and when must an answer be filed?

Answer 66

Used to respond to any form of the complaint. Contains responses, affirmative defenses, and counterclaims.

Affirmative Defenses - Defenses which require notice. Common ones are assumption of risk, contributory negligence, duress, fraud, release, statute of frauds, and the statute of limitations. Basically any defense that has its own name is likely to be an affirmative defense and must be pleaded in the defendant’s answer.

TIMING - MUST ORDINARILY BE SERVED WITHIN 21 DAYS OF SERVICE OF THE PLEADING TO WHICH IT RESPONDS.

Question 67

What happens if no answer is made?

Answer 67

Failure to respond is an ADMISSION. Unless cured by amendment, the admission is binding.

Common Practice - “boiler plate” denial of everything not specifically admitted.

Question 68

What is the reply?

Answer 68

Plaintiff’s answer to a counterclaim. Rules governing answers apply to a reply.

Question 69

How are pleadings amended?

Answer 69

1) AS OF RIGHT - MAY be amended ONCE at any time WITHIN 21 DAYS OF SERVICE of the pleading OR within 21 DAYS OF THE DEFENDANT’S RESPONSE.
2) BY LEAVE OF COURT - After the party has amended once OR the time for amending as of right has elapsed, leave to amend must be sought from the court. LEAVE TO AMEND SHOULD BE FREELY GRANTED (judge must have a reason for denying leave to amend).

Reasons for denying - too late and prejudicial to other side OR pleader has had a prior opportunity to amend but has not corrected the problem.

Question 70

What is the Doctrine of Relation Back affect amended pleadings?

Answer 70

In some circumstances, an amendment is deemed to Relate Back to the date of the original pleading.

1) If the statute of limitations has NOT yet run (still open), this doctrine does not matter.
2) If the statute of limitations HAS RUN, then relation back determines whether the amended pleading is allowed or time-barred.

An amendment relates back to the DATE OF THE ORIGINAL PLEADING IF it concerns the SAME CONDUCT, TRANSACTION, or OCCURRENCE as the original pleading.

The key here is NOTICE - Cannot have the effect of “surprising” the other party.

Question 71

Explain amendments to add or change a party.

Answer 71

An amendment to add or change a party against whom a claim is asserted must:

1) Concern the same conduct, transaction, or occurrence as the original pleading; AND
2) The party to be added must have known or had reason to know that the action should have been brought against the party.

Question 72

Do pleadings need to be verified? Certified?

Answer 72

Verification - Most pleadings are NOT verified (not sworn to), nor need they be.

Certification - Pleadings and ALL other documents (including motions of all sorts and discovery requests) MUST BE CERTIFIED BY THE ATTORNEY OF RECORD.

The signature of the attorney certifies that:

1) There is an appropriate legal basis for filing;
2) Attorney certifies that to the best of her knowledge after REASONABLE INQUIRY there is NO IMPROPER PURPOSE (harass or delay);
3) The legal contentions are warranted by existing law or by a non-frivolous argument for a change in the law; AND
4) The factual allegations have EVIDENTIARY SUPPORT or are likely to have such support after discovery. Denials must have such support or must be reasonably based on information or belief.

Question 73

What are the consequences of violating the certification requirement?

Answer 73

These can be raised by court OR opposing party. Here are the following consequences:

1) Move to dismiss or seek sanctions (Rule 11)
2) The attorney can be made to bear the cost of baseless or improper filing.
3) Attorney may be liable for opposing party’s attorney’s fees.

Question 74

T/F - An action should be dismissed for having the wrong plaintiff.

Answer 74

False.

Should NOT be dismissed until a reasonable time has been made for the substitution of the correct plaintiff.

Question 75

Who has capacity to sue?

Answer 75

Minors and Incompetents can SUE OR BE SUED ONLY THROUGH A GUARDIAN.

Partnerships can sue or be sued as an entity if federal jurisdiction is based on federal question. If jurisdiction is based on diversity, then each and every partner must be made a party to the litigation (complete diversity applies).

Question 76

What is Permissive Joinder of Parties?

Answer 76

This is joinder BY PLAINTIFFS. Any number of Ps may join if they assert claims arising out of the SAME TRANSACTION OR OCCURRENCE AND THERE IS A COMMON QUESTION OF LAW OR FACT.

Any number of defendants may be joined in the same action if the claims against them arise out of the same transaction or occurrence and there is a common question of law or fact.

Diversity Cases - NO party can be joined whose presence would defeat complete diversity.

If complete diversity is maintained, and if ANY plaintiff has a claim that exceeds $75,000 other plaintiffs with smaller claims can come in under SUPPLEMENTAL JURISDICTION.

Question 77

What is Compulsory Joinder of Parties?

Answer 77

Joinder BY DEFENDANTS.

Necessary party is someone whose participation in the lawsuit is necessary for a just adjudication, meaning:

1) Absent that party, complete relief cannot be accorded to the existing parties;
2) Necessary party has an interest in the litigation which will be impeded if the litigation goes forward without that party; OR
3) There is a substantial risk of double or inconsistent liability.

THESE NECESSARY PARTIES MUST BE JOINED IF FEASIBLE:

1) It will not deprive the court of SMJ (destroy diversity); AND
2) The court can assert PJ over the necessary party.

Question 78

How is a necessary party served?

Answer 78

Any state long-arm statute in addition to under the Bulge Provision within 100 miles of the federal courthouse.

Question 79

What happens if a necessary party cannot be joined?

Answer 79

The court decides whether to continue without the necessary party (typically the case) or dismiss the suit (rare). When the suit is dismissed, the party is considered TRULY INDISPENSABLE.

Question 80

What is intervention?

Answer 80

Outsider who volunteers to enter the lawsuit. Primarily concerned with plaintiffs here.

INTERVENTION AS OF RIGHT - May be had when the outsider claims an interest in the SM of the lawsuit that, as a practical matter, may be compromised by the disposition of the pending action.

PERMISSIVE INTERVENTION - May be allowed whenever there is a common question of law or fact between the intervenor’s claim and the main claim. MUST ASK THE COURT’S PERMISSION (matter of sound discretion).

NOTE: Both types of intervention must be timely (reasonable promptness).

THERE IS NO SUPPLEMENTAL JURISDICTION FOR EITHER TYPE OF INTERVENTION!!!!!

No one can intervene whose presence would destroy complete diversity or whose claim does not exceed $75,000.

Question 81

T/F - Supplemental Jurisdiction can exist with intervening parties.

Answer 81

FALSE

Question 82

What is interpleader? What are the definitions?

Answer 82

Used to resolve the problem of competing claims to the same property. Designed to avoid inconsistent obligations or multiple claims.

Property at Issue - the “Stake” (may be personal, intangible, or intangible)

Person holding the property - “Stake holder”

Persons claiming the property - “Claimants”

Stake holder can invoke interpleader as a plaintiff OR a defendant. Can be used either offensively or defensively.

Question 83

What is Rule Interpleader?

Answer 83

Rule 22 of the FRCP authorizes interpleader - Remedy available in a lawsuit otherwise within the court’s jurisdiction (must meet diversity requirements!)

Question 84

What is Statutory Interpleader?

Answer 84

Federal Interpleader Act:

1) Special jurisdictional amount of GREATER THAN $500;
2) Nationwide service of process;
3) Venue is proper in any district where ANY claimant resides;
4) SMJ based on MINIMAL DIVERSITY (any two claimants from different states on opposite sides).

Question 85

T/F - As between the same plaintiff and the same defendant, ALL claims may be joined whether they are related or not.

Answer 85

True.

Question 86

T/F - In a diversity case, a plaintiff can add up all claims against the defendant to exceed the $75,000 AIC requirement.

Answer 86

True

Question 87

What are counterclaims? Where are they made?

Answer 87

Claims by the defendant against the plaintiff.

They are PLEADED IN THE DEFENDANT’S ANSWER.

Question 88

What happens if a counterclaim is not made?

Answer 88

IF COMPULSORY - it is lost if not pleaded. MUST BE RAISED NOW. A counterclaim is compulsory if it arises out of the same transaction or occurrence as the claim to which it responds. No independent JX is required. If there is SMJ over the main claim, there is SMJ over a compulsory counterclaim. Supplemental JX covers compulsory counterclaims.

IF PERMISSIVE - May be pleaded now OR raised later. Counterclaims that do not arise out of the same transaction or occurrence (unrelated) are permissive. Requires a jurisdictional base - either a federal claim or diversity jurisdiction meeting the AIC requirement.

Question 89

T/F - Filing of the complaint tolls the SOL for the main claim and any compulsory counterclaims.

Answer 89

True.

Question 90

What are cross-claims? How can they be joined?

Answer 90

Those asserted against a co-party. They MUST ARISE OUT OF THE SAME TRANSACTION OR OCCURRENCE as the main claim. THESE ARE NEVER COMPULSORY. Thus, you can save these claims for another day without losing them.

Question 91

T/F - Failing to file a cross-claim loses the right to file that claim later.

Answer 91

False.

Question 92

What is impleader? Who are the parties?

Answer 92

Device by which the defendant brings into the suit someone who is or may be liable to the defendant for all or part of the plaintiff’s claim against him.

Impleaded Party - third-party defendant

Original Defendant - third-party plaintiff as against the third-party defendant.

Question 93

How is SMJ established in an impleader action? What claims fall under that jurisdiction?

Answer 93

DIVERSITY CASES - impleader comes within the court’s SUPPLEMENTAL JURISDICTION. Citizenship of a third-party defendant does NOT matter. Amount of the claim does NOT matter. This extends to the claim by the defendant against the impleaded third-party defendant.

SUPPLEMENTAL JURISDICTION DOES NOT EXTEND TO CLAIMS BY THE ORIGINAL PLAINTIFF AGAINST THE THIRD-PARTY DEFENDANT (UNLESS COMPLETE DIVERSITY IS MET OR THERE IS A FEDERAL QUESTION).

Question 94

How is PJ established in an impleader action?

Answer 94

In addition to all other grounds of PJ, the third-party defendant may be served within 100 miles of the courthouse.

Question 95

What are the prerequisites of a class action suit?

Answer 95

1) Numerousness (too many parties to join);
2) Common questions of law or fact;
3) Technicality of claims by the class representatives; AND
4) Adequacy of representation by the representative’s lawyer.

Question 96

Can class actions be dismissed or compromised?

Answer 96

Yes, REQUIRES JUDICIAL APPROVAL.

Question 97

How is diversity jurisdiction established in a class action?

Answer 97

NAMED REPRESENTATIVES must be completely diverse from the opposing parties AND at least ONE of them has a claim worth in excess of $75,000.

Question 98

What is the Class Action Fairness Act of 2005?

Answer 98

Allows very large class actions, involving 100 or more members with more than $5,000,000 at stake.

ONLY MINIMAL DIVERSITY IS REQUIRED!

Question 99

What are mandatory disclosures? What are the three stages?

Answer 99

These are things that must be disclosed without a discovery request. Designed to streamline discovery.

Three Stages:

1) Initial Disclosures - Names and addresses of persons with potentially discoverable information / copies or descriptions of relevant documents or things / computation of damages claimed / applicable insurance agreements.
2) Disclosure of Expert Witness - Names of expert witnesses who will be called at trial / qualifications, publications, opinions, information on which they will base their opinions / other cases in which they have testified / compensation to be paid.
3) Pretrial Disclosures - MUST BE MADE 30 DAYS BEFORE TRIAL. Includes lists of witnesses and exhibits. Any OBJECTIONS MUST BE MADE WITHIN 14 DAYS AFTER DISCLOSURE OR THEY ARE WAIVED UNLESS EXCUSED BY THE COURT FOR GOOD CAUSE.

Question 100

What is the scope of discovery?

Answer 100

You can discover anything that might be admissible at trial OR that might lead to something that might be admissible at trial (even things that aren’t admissible such as hearsay).

KEY POINT - Scope is NOT limited to admissible evidence. Hearsay is not a valid objection to discovery. That information might lead to other evidence that is admissible.

Question 101

What are the exceptions to discovery?

Answer 101

1) Evidentiary privilege - Anything covered by a true evidentiary privilege (attorney client etc.) is NOT discoverable.
2) Work Product Rule - Attorney work product protects ONLY documents and things (NOT INFORMATION) that are prepared in ANTICIPATION OF LITIGATION by or for another party or her representative. Documents prepared before the cause of action arose are NOT protected by the work product rule. This rule creates a QUALIFIED IMMUNITY FROM DISCOVERY.

Question 102

Can the work product rule be overcome?

Answer 102

Yes if the party seeking the documents or things through discovery shows:

1) NEED or the document or thing; AND
2) That the information CANNOT be obtained elsewhere (mere expense is not enough / must be unable).

Question 103

T/F - You can NEVER discover the mental impressions (thoughts) of an attorney.

Answer 103

True

Question 104

T/F - You can always get a copy of your own statements whether you are a party or a mere witness.

Answer 104

True.

Question 105

Are there differences between expert witnesses who will be called to testify and those who will not?

Answer 105

Yes

IF GOING TO BE CALLED, the other side, in fairness, has to prepare for cross-examination. The other side can discover that expert’s report (draft reports are generally NOT discoverable). Communication between counsel and the expert are generally not discoverable.

You CAN discover the amount of compensation, and the facts, data, and assumptions provided to the expert by the lawyer.

IF NOT GOING TO BE CALLED - no discovery allowed absent exceptional circumstances.

Question 106

Can protective orders be used in the discovery process?

Answer 106

Yes.

For GOOD CAUSE SHOWN, court can basically do anything that it wants that is reasonable, such as compel or restrain discovery.

Question 107

What are the six discovery devices? Explain each.

Answer 107

1) Oral Depositions - Questions are asked and answered orally and UNDER OATH. Limited to 10 depositions, unless the court allows more (each limited to one day of 7 hours, unless court allows more). Any kind of notice suffices for the deposition of a party BUT a deposition of a nonparty witness requires a PERSONAL notice. A SUBPOENA DUCES TECUM requires the deponent to bring specified documents or things. Oral depos can be taken at any time after the party has made mandatory disclosures. They MAY be taken before any notary public.
2) Written Depositions - Questions are delivered to an officer who asks orally the questions written down beforehand. Rarely used.
3) Interrogatories - Questions asked in WRITING to be answered under oath in writing. May be used ONLY AGAINST A PARTY (not a mere witness). LIMITED TO 25 INTERROGATORIES, unless the court allows more. RESPONSES ARE REQUIRED WITHIN 30 DAYS.
4) Discovery and Inspection of Documents and Land - Called a request to produce and permit inspection. Applies ONLY TO DOCUMENTS AND LAND UNDER CONTROL OF A PARTY. The thing to be produced and inspected must be described with PARTICULARITY. RESPONSE IS DUE WITHIN 30 DAYS.
5) Physical and Mental Examination - Can be ordered ONLY AGAINST A PARTY. ONLY permitted for a condition in controversy. ONLY FOR GOOD CAUSE SHOWN.
6) Request for Admission - Used to streamline the lawsuit. FAILURE TO RESPOND WITHIN 30 DAYS IS AN ADMISSION. Responses MUST BE SIGNED BY THE ATTORNEY OF RECORD. The signature certifies that there is reasonable basis and good faith for denying the request. Admissions have NO PRECLUSIVE EFFECT. ONLY BINDING IN THE CURRENT LAWSUIT (cannot be used in any future proceeding.

Question 108

When are depositions admissible?

Answer 108

Not automatically.

1) Deposition of AN ADVERSE PARTY is admissible as an admission against interest.
2) Deposition of a witness can be used to impeach that witness.
3) Deposition of a witness who does NOT testify can be used if the witness is dead or beyond the court’s subpoena power or otherwise unavailable.
4) Can also be used if the witness is more than 100 miles from the place of trial.

Question 109

When can the court enforce sanctions during discovery?

Answer 109

Court can IMMEDIATELY impose sanctions in THREE INSTANCES OF COMPLETE DEFAULT:

1) Failure to attend one’s own deposition;
2) Failure to respond to interrogatories; AND
3) Failure to respond to a request for documents or things.

OTHERWISE, the court should first issue an ORDER TO COMPEL before imposing sanctions.

Question 110

What is a Pre-Trial Conference?

Answer 110

Must be attended by the attorneys who will conduct the trial. Must file a PRE-TRIAL STATEMENT detailing: claims and defenses; itemization of damages; requests for stipulations and admissions; lit of all witnesses and exhibits; etc. FAILURE TO COMPLY USUALLY MEANS THAT THE ATTORNEY PAYS THE COSTS AND THE OTHER SIDE’S ATTORNEY’S FEES.

Question 111

Can there be a termination without trial?

Answer 111

Yes of course:

1) Judgment on the pleadings - Rare. Appropriate ONLY where the pleadings agree on all of the facts;
2) Default Judgments;
3) Voluntary dismissal (dismissal without prejudice / can be brought again);
4) Involuntary dismissal (dismissal with prejudice / over forever);
5) Summary judgment.

Question 112

Explain Voluntary Dismissal.

Answer 112

Dismissal without prejudice - plaintiff whose claim has been dismissed can bring that claim again in a new lawsuit. Plaintiff has a RIGHT to a voluntary dismissal ONCE, at any time prior to the defendant serving an answer or a motion for summary judgment.

A defendant’s motion to dismiss DOES NOT CUT OFF THE RIGHT to voluntary dismissal.

After defendant has filed an answer or motion for summary judgment, OR the plaintiff has already voluntarily dismissed once, plaintiff MAY SEEK A DISMISSAL WITHOUT PREJUDICE ON LEAVE OF COURT.

Question 113

Explain Involuntary Dismissal.

Answer 113

Dismissal with prejudice - When imposed for lack of jurisdiction, improper venue, or failure to join a necessary party, involuntary dismissal is WITHOUT prejudice.

ALL OTHER CASES - involuntary dismissal is WITH prejudice. This means that the dismissal is an adjudication ON THE MERITS. Gives full res judicata effect (preclusive to future claims).

May be imposed for a plaintiff’s failure to prosecute OR for failure to comply with any court order.

THE STANDARD FOR APPELLATE REVIEW IS ABUSE OF DISCRETION.

Question 114

What is summary judgment?

Answer 114

Summary judgment can be used to test the FACTS AND THE LAW (unlike motion to dismiss which only tests legal sufficiency of the plaintiff’s claim).

PARTIAL SUMMARY JUDGMENT - SJ granted only for certain parties, certain claims/defenses, or certain issues is allowed and often happens.

Question 115

What is the standard that must be met for summary judgment? Who may get it?

Answer 115

That there is no genuine dispute as to any material fact (no reasonable juror could find the other way), and the moving party is entitled to judgment AS A MATTER OF LAW.

May be sought by EITHER SIDE. Must be supported or opposed by particular materials in the record such as:

1) Depositions;
2) Answers to Interrogatories;
3) Documents;
4) Affidavits; and
5) Stipulations.

Materials in the record must generally be sworn statements. Pleadings are generally not sworn statements. Mere assertion or denial of a fact in a pleading does NOT create a genuine dispute.

Sworn Statement - based on personal knowledge.

Question 116

Explain the right to a jury trial.

Answer 116

7th Amendment Right.

Equity issues, such as injunction and specific performance DO NOT REQUIRE TRIAL BY JURY.

Damages (classic legal remedy) TRIGGERS the right to trial by jury.

Question 117

What happens if legal and equitable issues overlap? Is the right to a jury trial triggered?

Answer 117

The legal issues must be heard first so that the legal right to a jury trial is preserved. Then the equitable issues are heard second.

Question 118

How is the demand for a jury trial made?

Answer 118

MUST BE MADE NOT LATER THAN 14 DAYS AFTER SERVICE OF THE ANSWER OR OTHER PLEADING DIRECTED TO THE ISSUE ON WHICH JURY TRIAL IS SOUGHT.

Question 119

Explain Jury Selection.

Answer 119

EACH litigant gets 3 peremptory challenges to dismiss a juror for no cause at all. CANNOT BE USED FOR ILLEGITIMATE RACIAL OR GENDER PURPOSES.

A judge cannot eliminate jurors without GOOD CAUSE.

Question 120

What is a bench trial?

Answer 120

Judge is required to make BOTH findings of fact AND state conclusions of law.

Question 121

How are objections to jury instructions made?

Answer 121

MUST BE MADE BEFORE THE JURY RETIRES.

Question 122

What is a judgment as a matter of law? When is it motioned for?

Answer 122

Formerly known as a Directed Verdict.

Essentially a way of moving for summary judgment AFTER the trial has begun. The standard is VIEWING THE EVIDENCE IN LIGHT MOST FAVORABLE TO THE OPPOSING PARTY. If the evidence CANNOT support a contrary verdict, then the moving party is therefore entitled to judgment as a matter of law.

IF there is an issue of a witness’s credibility, then there is a question as to a material fact and the motion for JMOL will be DENIED.

This is USUALLY made by the defendant at the end of the plaintiff’s evidence and by either OR both sides at the close of ALL evidence.

Question 123

What is a Renewed Motion for Judgment as a Matter of Law (formerly J.N.O.V.)?

Answer 123

This is a motion for JMOL made at the close of all evidence to be renewed AFTER THE VERDICT WITHIN 28 DAYS OF JUDGMENT. The standard is the same: the evidence cannot support the jury’s verdict and the moving party is therefore entitled to judgment as a matter of law.

It is a CONDITION PRECEDENT to a post-verdict motion that the motion for JMOL had been made at the close of all evidence.

IF YOU FAIL TO ASK ORIGINALLY, YOU CANNOT RENEW.

NOTE: Usually made together with a motion for a new trial.

Question 124

T/F - Preliminary motions to terminate without a trial are no longer relevant once there has been a full trial. Further, any appeal must be based on the full trial, not the earlier motion that was denied.

Answer 124

True.

Question 125

What is a motion for new trial?

Answer 125

Often made with a renewed motion for judgment as a matter of law, but very different. Grounds for new trial include:

1) Errors during trial that rendered the judgment unfair;
2) Newly discovered evidence;
3) Prejudicial misconduct by a lawyer, party, or juror; AND
4) Excessive verdict and the winning party refused to accept a reduction (remittitur).

Question 126

What must a court do when granting a motion for a new trial?

Answer 126

The court must SPECIFY the reasons for granting a new trial in its order.

Reason for granting a new trial is PURELY A QUESTION OF LAW and will be reviewed de novo by an appellate court. Most grounds for new trial are within the SOUND DISCRETION of the trial court. Thus, an appellate court will review ONLY for ABUSE OF DISCRETION.

Question 127

When can an appeal be had?

Answer 127

Ordinarily, appeals lie only from final judgments. Final judgments are those that resolve ALL the claims of ALL the parties on the merits.

Partial Final Judgment - the court may, by express designation, enter a final judgment on some claims. SUCH CLAIMS ARE IMMEDIATELY APPEALABLE. A judgment becomes final when entered by the clerk on the court’s docket.

Question 128

What notice is required for appeal?

Answer 128

NOTICE OF APPEAL MUST BE FILED IN THE TRIAL COURT WITHIN 30 DAYS OF ENTRY OF JUDGMENT. A timely post-judgment motion (e.g., renewed motion for JMOL or new trial motion), TOLLS THE 30-DAY LIMIT.

Question 129

What are interlocutory orders? Are they discretionary?

Answer 129

Injunctions (granted or modified) AND any order that changes or affects possession of property (such as an order to vacate).

Any interlocutory order is APPEALABLE on leave of courts (plural / both the trial court and the appellate court must agree to allow the appeal).

The trial court can issue a certificate for interlocutory appeal stating:

1) That it involves a controlling question of law; AND
2) That the immediate appeal may materially advance termination of the litigation.

THE APPELLATE COURT MUST AGREE.

Question 130

What is the Collateral Order Doctrine?

Answer 130

Authorizes immediate appeal of orders SEPARABLE FROM and COLLATERAL TO the main suit and TOO IMPORTANT TO DENY IMMEDIATE REVIEW.

Most likely case: The denial of a motion to dismiss for forum non conveniens is almost always a collateral order and IMMEDIATELY APPEALABLE.

Question 131

What is Mandamus?

Answer 131

Provides for IMMEDIATE APPELLATE REVIEW of an order that is an ABUSE OF AUTHORITY.

Question 132

Are interlocutory appeals in a class action valid?

Answer 132

Appellate courts have discretion to hear interlocutory appeals from orders certifying or refusing to certify a class action.

Question 133

Explain “Standard of Review.”

Answer 133

1) Matters of Law - Appellate review is DE NOVO (did the TC get it right?)
2) Findings of Fact - Appellate review is more limited here. Jury verdicts MUST BE AFFIRMED if supported by SUBSTANTIAL EVIDENCE. Judge findings MUST BE AFFIRMED UNLESS CLEARLY ERRONEOUS. Judge’s conclusions of law are reviewed de novo (did the judge get it right?).
3) Matters of Discretion - Standard is ABUSE OF DISCRETION. Any REASONABLE decision will be upheld.

Question 134

Explain Full Faith & Credit.

Answer 134

Courts in the United States, whether state or federal, MUST give full faith and credit to judgments rendered by courts of other states, provided that the rendering court had jurisdiction (MUST BE ENFORCED).

Question 135

What is the effect of former adjudication?

Answer 135

Preclusion consists of two doctrines:

1) Claim preclusion (res judicata); AND
2) Issue preclusion (collateral estoppel).

Ask TWO QUESTIONS:

1) Is the claim in the second suit precluded by the prior adjudication?
2) If not, is the issue in the second suit precluded by the prior adjudication?

ALWAYS ASK THE QUESTIONS SEPARATELY AND IN ORDER.

Question 136

Explain Claim Preclusion.

Answer 136

A final judgment on the merits of a claim BARS re-litigation of that claim by the same parties or those in privity with the parties. Prevents re-litigation of every issue that was raised OR should have been raised in the first litigation.

THREE REQUIREMENTS:

1) There must have been a final judgment ON THE MERITS in the first suit;
2) The second suit MUST be between the SAME PARTIES OR THEIR SUCCESSORS in interest; AND
3) The second suit must involve the SAME CLAIM OR CAUSE OF ACTION.

Question 137

Does a final judgment on the merits require a trial?

Answer 137

Includes default judgments, summary judgments, and dismissals with prejudice. NOT NECESSARY THAT THERE HAS ACTUALLY BEEN A TRIAL.

Question 138

What does “same parties or their successors” mean?

Answer 138

BOTH parties must have been parties to the first lawsuit or successors in interest to the original parties. Same parties means that there must be the same plaintiff and same defendant.

Successors in interest mean assignor/assignee, decedent/executor, and executor/beneficiaries.

Question 139

How are class actions affected by final judgments on the merits?

Answer 139

EACH MEMBER IS BOUND by the judgment and considered to have had their opportunity in court EVEN IF NOT A NAMED REPRESENTATIVE.

Question 140

What is considered to be “the same claim or cause of action?” How are installment sales contracts treated?

Answer 140

ALL legal theories to recover for harm arising out of a SINGLE TRANSACTION OR OCCURRENCE are ONE CLAIM. Unless state law provides otherwise, if both contract and tort theories seek redress for the same harm, they are the SAME claim.

Installment Sales - creditor must sue for ALL that is due at the time of the suit. All accrued debt or obligation is one claim. Creditor cannot sue for payments that are not “due and owning.” Future debts or obligations are another claim.

WATCH OUT for installment sales contracts with an acceleration clause.

Question 141

Explain issue preclusion.

Answer 141

THREE REQUIREMENTS:

1) The same issue of fact must arise in two suits;
2) That issue must have been ACTUALLY AND NECESSARILY DECIDED in the first suit; AND
3) The PARTY TO BE PRECLUDED (or successor in interest) must have been a party to the first suit.

Question 142

What are “same issues of fact?”

Answer 142

It doesn’t matter if the two suits involve entirely different claims, so long as they have factual issue in common.

Question 143

What does “actually and necessarily decided” mean?

Answer 143

Only applies to issues actually litigated, NOT to those that MIGHT have been litigated.

Default Judgment - results in full claim preclusion, but nothing is actually litigated so no issue preclusion.

Question 144

T/F - The party invoking issue preclusion needs to have been a party to the first suit for an issue to be precluded.

Answer 144

FALSE.

Only the party to be precluded needs to have been a party to the previous suit for issue preclusion.

Issue preclusion is a defensive tactic (unclear whether it is an acceptable offensive tactic).

Question 145

T/F - With one plaintiff and one defendant, the plaintiff can combine all claims whether related or not to meet the amount in controversy requirement.

Answer 145

True

Question 146

If a defendant tries to removed to federal court on the basis of his federal question counter-claim (or defense), what should the court do and why?

Answer 146

Deny the motion because of the Well-Pleaded Complaint rule. The federal question has to be pleaded in the plaintiff’s complaint (can’t rely on a defendant’s defense or counterclaim to remove).

Question 147

Where is a partnership located for diversity purposes?

Answer 147

Where its partners are domiciled. NOT WHERE THE PARTNERSHIP HAS ITS PRINCIPAL PLACE OF BUSINESS.

Question 148

If diversity jurisdiction is already established, can claims asserted by a second plaintiff through permissive joinder under rule 20 that don’t meet the AIC be covered under supplemental jurisdiction?

Answer 148

Court may exercise supplemental jurisdiction over their claims because they seek to join this action, over which the court has diversity jurisdiction, under the permissive joinder rule (Rule 20) AS LONG AS their claims arise out of a “common nucleus of operative fact.”

Question 149

T/F - While Rule 4(k)(2) provides for personal jurisdiction by a federal court when no state court can exercise jurisdiction over the defendant, it requires both that the claim against the defendant be based on federal law and that there be minimum contacts such that the exercise of personal jurisdiction in federal court is consistent with the laws of the United States and the United States Constitution.

Answer 149

True

Question 150

Where can an action against a federal employee be brought (provided they are acting in their legal capacity)?

Answer 150

An action against a federal officer or employee acting in an official capacity or under color of legal authority may be brought in the judicial district in which the plaintiff resides.

Question 151

The federal rules specifically provide that waiver of service waives any objection to personal jurisdiction or to venue.

Answer 151

False.

DOES NOT WAIVE

Question 152

T/F - A motion for relief from a judgment under Rule 60(b) that is based on newly discovered evidence must be filed within a reasonable time and no later than 6 months from the entry of the judgment.

Answer 152

False.

One year

Question 153

T/F - Generally, an action commenced in a state court that is within the original jurisdiction of a U.S. district court may be removed by the defendant to the district court for the district in which the state court action was commenced. However, if removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed.

Answer 153

True

Question 154

T/F - Quasi-in-rem jurisdiction requires minimum contacts to exist between the defendant and the forum state before jurisdiction will apply.

Answer 154

True

Question 155

T/F - In order for a federal district court to transfer an action to another federal district court for the convenience of the parties and witnesses and in the interest of justice, the transferor court must determine that the action could have been initiated in the transferee court or that all parties consent to the transfer. It is not sufficient that the transferor court merely determines that the transfer would be convenient for the parties and witnesses and in the interest of justice.

Answer 155

True

Question 156

T/F - If the action is a federal-question claim, then federal substantive and procedural law will control. Bankruptcy actions fall under the purview of federal law, so federal substantive and procedural law will apply.

Answer 156

True

Question 157

T/F - In diversity actions, a federal district court is generally bound by the conflict-of-law rules of the state in which the district court is located. Questions about the right to a jury trial are considered procedural and are determined by the law of the forum state.

Answer 157

True

Question 158

T/F - The elements of a claim or defense in tort are not considered substantive and are generally controlled by federal law in a federal diversity action.

Answer 158

False

The elements of a claim or defense in tort are considered substantive and are generally controlled by state law in a federal diversity action.

This is the Erie Doctrine.

Question 159

T/F - Temporary injunctions remain in effect for an amount of days to be set by the court, but no longer than 14 days UNLESS good cause exists or by consent of the adversary.

Answer 159

True.

Question 160

Can a Temporary Restraining Order be issued without notice to the adverse party?

Answer 160

A temporary restraining order (TRO) may be issued without notice to the adverse party if the moving party establishes 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 reasons why it should not be required.

Question 161

T/F - If the complaint adequately states a claim, then the court’s belief that the action will probably be unsuccessful is not grounds for dismissing the claim.

Answer 161

True.

Question 162

T/F - If the complaint adequately states a claim, the court’s belief that it is likely that the plaintiff will be unable to find evidence of an illegal agreement is not grounds for dismissing the claim.

Answer 162

True.

Question 163

T/F - A motion to dismiss for lack of adequate service is lost if not filed in the answer.

Answer 163

True

Question 164

T/F - When a defendant files a pre-answer motion under Rule 12, such as a motion to dismiss for lack of personal jurisdiction, the defendant has 21 days after receiving notice of the court’s decision on this motion to file its answer.

Answer 164

False,

14 days

Question 165

T/F - A party can file a motion to dismiss their own claim (if facing sanctions for it) within 21 days of service of the sanction motion to avoid the sanction.

Answer 165

True.

Question 166

T/F - If a party files a claim, a counterclaim, or a cross-claim against another party, the second party must file any claim that that party has against the first party that arises out of the same transaction or occurrence as the first party’s claim.

Answer 166

True

Question 167

T/F - Without leave of court, the plaintiffs, the defendants, and the third-party defendants, each as a group, are limited to 10 depositions by oral or written examination. Unless the parties agree to the deposition, leave of court must be obtained to exceed the 10-deposition limit. If leave of court is granted, a group may exceed the 10-deposition limit.

Answer 167

True.

Question 168

T/F - A physical examination may be ordered only for “good cause.”

Answer 168

True.

If the defendant puts her physical condition in question, that would suffice as “good cause.”

Question 169

When can depositions be taken?

Answer 169

Under Rule 30, a party may take the deposition of any party or nonparty witness at any time after the party has made its mandatory initial disclosures pursuant to Rule 26(a).

You can do so earlier with leave of the court.

Question 170

T/F - If a motion for summary judgment is properly made and supported, an opposing party may not rely merely on the allegations or denials in her own pleading. The opposing party must set out specific facts showing a genuine dispute for trial.

Answer 170

True.

Question 171

T/F - Although involuntary dismissals of an action are typically with prejudice, the dismissal of an action due to the failure to join a necessary party is not.

Answer 171

True

Question 172

When must a summary judgment as a matter of law be granted on the pleadings?

Answer 172

Under Rule 56, a motion for summary judgment must be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.

Question 173

Explain the process of seeking a default judgment.

Answer 173

When a party has failed to plead or otherwise defend an action and that failure is shown by affidavit or otherwise, the court clerk must enter the party’s default. Once a default is entered against a party, the plaintiff may seek a default judgment.

Question 174

In a non-criminal federal case, can you ever have less than 6 jurors?

Answer 174

A case may be tried before and a verdict returned by less than a six-member jury, if the parties so stipulate.

Question 175

Can a court carry out voir dire by itself?

Answer 175

If the court examines the prospective jurors, then it must permit the parties or their attorneys to make any further inquiry it considers proper, or it must itself ask any of their additional questions that it considers proper.

Question 176

T/F - Although the court may require the parties to file jury instructions at the close of evidence or at any earlier reasonable time, a party can file a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court for such requests.

Answer 176

True

Question 177

Can the court correct a clerical or other mistake resulting from an oversight or omission whenever one is found in a judgment, order, or other part of the record?

Answer 177

Rule 60(a) allows a court to correct a clerical or other mistake resulting from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may make such a correction on motion by a party or on its own initiative, with or without notice. However, once an appeal from a judgment or order has been docketed in the appellate court, such a correction can be made only with leave of the appellate court.

Question 178

T/F - While federal courts generally do not exercise diversity jurisdiction over probate matters, this restriction is narrowly construed and primarily applies to the probate of a will or the administration of a decedent’s estate.

Answer 178

True

Question 179

Can remand orders by a higher court be appealed?

Answer 179

A remand order is generally not reviewable on appeal or otherwise (except for an order remanding a civil rights case removed pursuant to § 1443 or a remand order in a class action, if the application for review is made to the court of appeals not more than 10 days after the entry of the order).

Question 180

T/F - The Federal Tort Claims Act waives sovereign immunity and permits a tort action against the United States under limited circumstances.

Answer 180

True

Question 181

What happens if the process server doesn’t file proof of service with the court?

Answer 181

The federal rules mandate that, unless formal service is waived, a process server must submit proof of service to the court. However, the failure to make proof of service does NOT affect the validity of the service.

Question 182

T/F - If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service of process.

Answer 182

True

Question 183

What must a plaintiff do if pleading fraud or special damages?

Answer 183

When a plaintiff seeks special damages, the plaintiff is required to plead such damages with specificity.

A short and plain statement will not suffice.

Question 184

What can courts examine in deciding whether to grant a motion to dismiss for failure to state a claim on which relief can be granted?

Answer 184

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice.

When a defendant files a motion to dismiss for failure to state a claim upon which relief can be granted and attaches materials outside the pleadings to the motion, the court must treat the motion as a summary judgment motion if the court considers such materials in reaching its decision on the motion.

Question 185

When must a motion to strike a defense in the pleadings be filed?

Answer 185

If a pleading contains an insufficient defense, a party must move to strike the defense from the pleading either before responding to the pleading or, if a responsive pleading is not permitted, within 21 days after being served with the pleading.

Question 186

If the amount of damages in a complaint are not denied in the response, are they admitted?

Answer 186

Although an allegation in the plaintiff’s complaint is generally deemed admitted if that allegation is not denied in the answer, the same is not true if the allegation relates to the amount of damages.

Question 187

Must a plaintiff file a reply to a defendant’s answer?

Answer 187

Under Rule 7(a)(7), a reply to the defendant’s answer is made only when the plaintiff is ordered to do so by the court. Thus, the plaintiff is deemed to deny any allegations in the defendant’s answer, including any affirmative defenses, if not ordered to reply.

Question 188

What must a party bringing a federal statutory interpleader action do?

Answer 188

In order to file a federal statutory interpleader action, the stakeholder must be willing to either deposit the property at issue with the court or to post a bond in an appropriate amount.

Question 189

Can a plaintiff file a claim against an impleaded third party defendant?

Answer 189

A plaintiff may file a third-party claim against a third-party defendant, but the claim must relate to the same transaction or occurrence as the original complaint.

Question 190

What is the result of a party filing 32 interrogatories on a non-party?

Answer 190

Normally, a party would have to answer 25.

But, interrogatories CANNOT be served on non-parties. Thus, the non-party does not have to respond.

Question 191

T/F - Under Rule 37(c)(1), if a party fails to make or supplement its automatic disclosures as required by Rules 26(a) and (e), then the party will not be permitted to use the documents or witnesses that were not disclosed unless the nondisclosure was substantially justified or was harmless.

Answer 191

True.

REMEMBER: Expert witnesses must be disclosed 90 days before the date set for trial.

Question 192

T/F - The movant may file a renewed motion for judgment as a matter of law no later than 30 days after the entry of judgment.

Answer 192

False.

28 days.

Question 193

T/F - A motion for relief of judgment can be filed any time after trial when new evidence shows up.

Answer 193

False.

A motion for relief from judgment under Rule 60(b) must be filed within a reasonable time and no later than one year following the entry of the judgment.

Question 194

When can an appellate court overturn a finding of fact by the trial court?

Answer 194

Must be CLEARLY ERRONEOUS.

Question 195

T/F - After a default judgment, can you have an issue preclusion?

Answer 195

False

In order for an issue to be precluded by prior litigation (i.e., for the doctrine of collateral estoppel to apply), the issue must have been actually litigated.

Question 196

T/F - When in diversity jurisdiction, a federal court always follows the federal procedural rules.

Answer 196

False.

When that state procedural rule (such as service of process rules) determines the applicability of the state statute of limitations (substantive law), the federal court must apply the state procedural rule.

Question 197

Can a plaintiff who has a counterclaim against it withdraw their own claim to avoid the counterclaim for lack of personal jurisdiction?

Answer 197

No, once a plaintiff brings a claim, he submits to personal jurisdiction. Any counterclaims brought against him will have personal jurisdiction even if the plaintiff withdraws his complaint?

Question 198

T/F - An alien who is a lawful, permanent resident of the United States is treated as a United States citizen for venue purposes. Venue based on residency is determined by the judicial district in which such an alien resides.

Answer 198

True.

Question 199

T/F - A court must have personal jurisdiction to transfer a case.

Answer 199

False.

Although the forum court lacks personal jurisdiction over the defendant, the court may nevertheless transfer the action if the court has determined that the transfer is in the interest of justice.

Question 200

Under the Erie Doctrine, which state’s substantive law is applied if the case is transferred to a different state?

Answer 200

If venue is transferred under the change of venue rules of 28 U.S.C. § 1404, the new court must apply the law of the state of the transferor court, including that state’s rules regarding conflict of laws.

Question 201

When can a court generally impose Rule 11 sanctions on a party?

Answer 201

A court may impose sanctions, including payment of attorney’s fees, on attorneys, law firms, and parties for violations of Rule 11, but may typically do so only when a party makes a motion for such fees.

Question 202

What is required for a court to grant a preliminary injunction?

Answer 202

To grant a preliminary injunction, the court must determine that the plaintiff is likely to succeed on the merits of his action at trial.

Question 203

T/F - Both alternative and inconsistent defenses may be alleged in an answer.

Answer 203

True

Question 204

Can a court freely grant leave to a party to amend their pleadings?

Answer 204

A court should freely grant leave to amend a pleading when justice so requires. Under Rule 15, an amendment to a pleading that changes the named defendant relates back to the date of the original pleading if it asserts essentially the SAME claim or defense, and the new party KNEW OR SHOULD HAVE KNOWN of the potential action and received notice WITHIN 120 DAYS after the filing of the original complaint.

Question 205

T/F - In order to join defendants in a single action, the plaintiff’s right to relief must be asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence.

Answer 205

True

Question 206

T/F - Tortfeasors facing joint and several liability are not considered necessary parties.

Answer 206

True.

Question 207

Can a defendant join a third party on a compulsory counterclaim?

Answer 207

Yes, the court will have supplemental jurisdiction.

Question 208

T/F - Mandatory pretrial disclosures must be made 30 days before trial.

Answer 208

True.

REMEMBER - Experts must be disclosed 90 days before trial.

Question 209

When is a court required to limit discovery?

Answer 209

In general, the court is required to limit the frequency or extent of discovery otherwise allowed by the rules if it determines, in its discretion, that the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake, and the importance of the discovery in resolving the issues.

Question 210

T/F - In a federal civil trial, a case can have between 6 and 12 jurors, but more may be required if the length of trial is going to be long.

Answer 210

False.

You can never have more than 12.

Remember that in federal cases, a jury must be unanimous UNLESS STIPULATED TO BY THE PARTIES.

Question 211

Can a jury instruction be appealed if not objected to on the record?

Answer 211

Unless a party timely and properly objects on the record to an erroneous instruction given or proposed to be given by the court or to the court’s failure to give an instruction timely requested by a party, the party generally cannot raise the matter on appeal. However, the appellate court can address a PLAIN ERROR with regard to the jury instructions that affects substantial rights.

Question 212

T/F - If the jury answers to special interrogatories are inconsistent with the jury verdict, the court may still accept the verdict.

Answer 212

False.

When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, the court may (i) approve a judgment that is consistent with the answers, notwithstanding the general verdict, (ii) direct the jury to reconsider its answers and verdict, or (iii) order a new trial.

Question 213

Can a new trial be obtained based on a juror’s lies during voir dire?

Answer 213

To obtain a new trial, a party must demonstrate that a juror failed to answer honestly a material question on voir dire, and show that a proper response would have provided a valid basis for a challenge for cause.

Question 214

Explain interlocutory appeals.

Answer 214

Federal courts of appeals may hear appeals from the final judgment of the district courts, but most interlocutory orders, such as the denial of a summary-judgment motion or a motion to dismiss, are not considered final and are therefore not immediately appealable. If a district court certifies that an immediate appeal would help to resolve an unclear interpretation of a controlling question of law, however, a court of appeals has discretion to allow the appeal if the application is made to it within 10 days after the entry of the order.

Question 215

T/F - For purposes of diversity jurisdiction, the value of a single plaintiff’s claims against each of multiple defendants cannot be aggregated if the claims are separate and distinct and the defendants are not jointly liable with respect to the claims.

Answer 215

True

Question 216

T/F - Even if a statute provides nationwide service of process, the court must still show that a corporation has minimum contacts with the state for personal jurisdiction.

Answer 216

True

Question 217

T/F - While one option for proper venue is the judicial district in which at least one defendant resides, that option also requires that all defendants reside in the same state in which the district is located. However, the failure to satisfy the requirements for this option is not fatal. Even when neither of the basic alternatives for proper venue is applicable, venue is proper in a judicial district in which any defendant is subject to personal jurisdiction with respect to the action.

Answer 217

True

This is an important rule when not all of the defendants reside in the same state and the event giving rise to the cause of action occurs in another country.

Question 218

T/F - The federal district court is empowered to transfer an action to a court in a foreign country, when the facts indicate that such a forum would be the most appropriate for the action.

Answer 218

False.

Can NEVER do this. Options are denying a motion to transfer and retaining suit; grant a motion to dismiss; OR dismiss the case on its own on the basis of forum nonconveniens.

Question 219

T/F - Even though a plaintiff is pursuing an action against a U.S. officer or employer in his individual capacity, the plaintiff is required to also serve process on the United States if the basis for the action is conduct that occurred in connection with duties performed on behalf of the United States.

Answer 219

True

Service is made on the Attorney General.

Question 220

What must a party show in seeking a preliminary injunction?

Answer 220

A plaintiff seeking a preliminary injunction must establish that: (i) she is likely to succeed on the merits; (ii) she is likely to suffer irreparable harm in the absence of relief; (iii) the balance of equities is in her favor; and (iv) the injunction is in the best interest of the public.

Question 221

T/F - With regard to a federal interpleader action based on Rule 22, subject matter jurisdiction is determined in accord with the general rules for such jurisdiction.

Answer 221

True.

Question 222

T/F - A party is never required to assert a cross-claim against a co-party.

Answer 222

True.

Question 223

T/F - A shareholder who brings a derivative action on behalf of a corporation must have owned stock in the corporation at the time of the wrong.

Answer 223

True

Question 224

T/F - Nonparties may not be compelled to produce documents pursuant to a subpoena.

Answer 224

False, they can be.

Question 225

What discovery may be performed on non-party witnesses?

Answer 225

A plaintiff may take an oral deposition of a nonparty witness, such as the former employee, as long as the nonparty is given proper notice. By contrast, all of the other devices listed (interrogatories, physical exams, and requests for admission) can be used only against a party.

Question 226

T/F - Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement.

Answer 226

True.

Question 227

When can a plaintiff dismiss their own claim without court approval or the opposing party’s consent? Is the dismissal with or without prejudice?

Answer 227

A plaintiff may dismiss an action without court approval or the agreement of the other parties prior to the service of an answer or summary judgment motion.

A motion to dismiss for lack of personal jurisdiction is not a summary judgment motion. (Note: Unless the plaintiff has dismissed a prior action based on the same claim, the dismissal is without prejudice.)

Question 228

What happens when there are both legal and equitable claims in a federal civil trial and a party demands a jury trial? Which claim is tried first? Which Constitutional Amendment provides for this?

Answer 228

Under the Seventh Amendment, a party to a civil action has the right to a trial by jury with regard to an action at law (i.e., an action for damages). If an action involves both legal and equitable claims and there are common factual issues, then the jury determines the legal claims first and the court subsequently determines the equitable claims.

Question 229

T/F - As long as at least 6 jurors are in favor of the verdict, the verdict is considered “unanimous.”

Answer 229

False.

Even if there are 12 jurors, it has to be unanimous.

Question 230

What can a court do if a jury fails to follow jury instructions?

Answer 230

Order further deliberations.

Possible order a new trial (discretionary).

Question 231

Are denials of certifying a class action immediately appealable?

Answer 231

An appellate court may, but is not required to, hear an immediate appeal of a certification decision rendered by the district court. Answer choice B is incorrect. A petition for permission to appeal a certification order must be filed WITHIN 14 DAYS of the entry of the order.

Question 232

Are there any interlocutory orders that are immediately appealable as of right?

Answer 232

While most interlocutory orders are not immediately appealable, certain equitable orders are reviewable immediately as a matter of right, including an order GRANTING AN INJUNCTION.

Question 233

When a post-judgment trial motion is made, does that affect the time frame to appeal?

Answer 233

When a motion for a new trial is filed, the time for giving notice of appeal will run from the entry of the order denying the new trial. The entry of the order denying the last post-judgment motion starts the 30-DAY time period for filing an appeal.

Question 234

T/F - In a diversity case on a state law claim, the federal court may properly use its inherent power to assess attorney’s fees as a sanction for a defendant’s bad-faith conduct during the litigation, even if the law of the forum state provides that attorney’s fees may not be awarded to a successful party.

Answer 234

True

Question 235

When can a motion for summary judgment be filed?

Answer 235

A party may file a motion for summary judgment at any time until 30 DAYS AFTER THE CLOSE OF ALL DISCOVERY.

Question 236

What must a moving party do before a court can issue an order for a Temporary Restraining Order?

Answer 236

Before a court can issue a temporary restraining order, the attorney of the party seeking the order must certify in writing any efforts made to give notice and the reasons why notice should not be required.

Question 237

T/F - If a plaintiff fails to prosecute his case and, in response to a defendant’s motion, the court dismisses the action, the dismissal is with out prejudice and operates as an adjudication on the merits.

Answer 237

False

With prejudice

Question 238

T/F - When an action is dismissed due to the failure to timely serve process, the dismissal is without prejudice.

Answer 238

True

Question 239

What is the pre-requisite to be able to file a renewed motion for judgment as a matter of law?

Answer 239

A party who has not submitted a prior motion for judgment as a matter of law may not submit such a motion after the jury has rendered its verdict. After the jury has rendered its verdict, a party may only renew a motion for judgment as a matter of law that it has previously made.

REMEMBER: MUST BE FILED WITHIN 28 DAYS OF JUDGMENT ENTRY.

Question 240

Who has the right to remove? What about if a counterclaim is asserted?

Answer 240

This right of removal is a right of the defendant only and is not available to a plaintiff defending a counterclaim that could have originally been brought in federal court.

Question 241

Is an order for new trial a final judgment that is immediately appealable?

Answer 241

An order for a new trial is NOT appealable because it is not a final judgment. A party who wants to raise on appeal the grant of a new trial must wait until the new trial has occurred and resulted in a final judgment.

Question 242

T/F - When the United States is a defendant in a civil action, service must be made on the U.S. Attorney General as well as the U.S. attorney for the district in which the action has been filed.

Answer 242

True

Question 243

What if a plaintiff for SMJ purposes pleads that the P and the D are residents of different states?

Answer 243

The complaint must contain a statement of the grounds for the court’s jurisdiction. Because citizenship, not residency, is the basis for diversity jurisdiction, the complaint here fails to allege the court’s subject matter jurisdiction and could properly be challenged by the defendant.

Question 244

What is additur? Is it allowed?

Answer 244

Additur, which is an increase by the court in the amount of damages awarded by a jury, is not permitted in a federal court action. Such an enhanced verdict violates the Seventh Amendment right to a jury trial.

EXAM TIP - be careful for an exam answer that says the court cant change the amount of damages awarded (because this can be done in the case of REMITTITUR).

Question 245

T/F - A renewed motion for judgment as a matter of law AND a motion for new trial must be filed within 28 days of the judgment.

Answer 245

True

Question 246

When must an answer be served after waiver of service of process?

Answer 246

If a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 DAYS after the REQUEST FOR WAIVER WAS SENT, OR 90 DAYS after it was sent to a defendant outside a judicial district of the United States.

Question 247

Does a plaintiff have the option of choosing which verdict he wants from a jury?

Answer 247

The Federal Rules of Civil Procedure permit the use of three forms of a jury verdict—general, general with special interrogatories, and special. The choice of which form of verdict the jury must return is left to the discretion of the court. Unless the chosen form of verdict constitutes an abuse of discretion, a party’s challenge to the form selected by the court is unlikely to be successful.

Question 248

What is the collateral-order doctrine?

Answer 248

Under the collateral-order doctrine, a court of appeals has discretion to hear and rule on an issue if it is distinct from the merits of the case, involves a serious and unsettled legal question, and would be effectively unreviewable if the court waited until final judgment to hear the claim or issue.

Question 249

When must a third party complaint be filed by a defendant if an answer has already been filed?

Answer 249

Within 14 days of the answer OR anytime with leave of the court.

Question 250

Is there diversity when the plaintiff permanently moves to a different country but refuses to become a citizen of that country?

Answer 250

No, if you are claiming diversity because you are domiciled in a different country, then you must be a formal citizen of that country (domicile is not enough).