Civil procedure

Question 1

Personal jurisdiction

Don’t forget!

Answer 1

Failure to object to personal jurisdiction before answering or in a party’s first 12(b)(6) motion waives the issue. There is no indication that waiver occurred here

Question 2

Personal jurisdiction is the ( ).

(T N ) of PJ were 1) 2) 3) .

Cf. P was incorporated under the law of Japan and doing business only in Japan

Answer 2

The ability of a court to exercise power over a particular defendant.

Traditional notion of the PJ were consent of the Defendant, domicile, or presence and being served within the state.

PJ is waived if it is not challenged

Here, D was incorporated under the law of C and doing busuness only in State A. There are no fact indicating that D was domiciled, present and served within State A

Question 3

A person is domiciled in the state where

Answer 3

she is present and has the intent to make the state her home

Question 4

Even if there are not traditional notions of PJ

A state may have a statute that ( ).

*If the facts are silent as to whether there is a long arm statute…

Answer 4

Even if there are not traditional notions of PJ

A state may have a statute that may provide the jurisdiction over an nonresident.

• Here although the facts are silent as to whether there is a long arm statute, it may be presumed that State A does have a long arm statute because the states generally have an interest in giving residents redress to harms commited by nonresdents*
• Thus there may be presumed to be long arm statute*

Question 5

In order for the long arm statute to be consitutional

when

hint is Con Mini pur for Relate Fairplay and SJ in bur

Answer 5

Constitional limit

Long arm statute may be exercised

as long as it it constitional(satisfied with substantive due process)

PJ is constitutional when

1) minimum contacts exists between the D and forum
2) doesn’t offend traditional notion of fairplay and substantial justice

Question 6

Minimum Contacts

In order to satisfy minimum contact

1 The D must have ( ) to the

( )of the forum state

2 it would be ( )that ( )against an action in the state

Answer 6

Minimum Contacts

In order to satisfy minimum contact

1 The D must have purposefully availed himself to the

benefit and protections of the forum state

2 it would be foreseeable that hewould be required to defend himself against an action in the state

• 1 Here, since D never visited Stated B or worked there D didn’t purposefully availed himself to the benefit or protection of the state B .**It would be hard for him to foresee that he would need to defend himself over a claim in State B,*
• 2 Here, the fact suggest that V designed the valve in state B which shows that htey are conducting business in the state, This measns V is purposefully availing himself to the benefits and protection of the state B and since it should have veen foreseen that he would have to defend himself over the claim,*

Question 7

Traditional Notion of Fairness

To assess a fairness a court will look at

1

2

* if D has C and S ties with the forum,

3

Answer 7

Fairness

To assess a fairness a court will look at

1 the relatednes of the claim to the contact

2 convenience of the forum

3 the forum state’s interest in the outcome

• 1 Here the D’s claim arises from the D’s contact with the forum*
• 1 D has continuous and systematic ties with the forum*
• 2 convenience unless there is not sivere disadvantage in the litigation*
• 3 A state has interest in protecting its citizens from the defected design,(However ,this interest does not outweigh the fact that there was no minimum contacts.)*

Question 8

In order for ( ) to have jurisdiction over the case

the case must based on ( ).

Diversity jurisdiction(DJ) requires

To meed the amount requirement P can( )

Answer 8

In order for federal court to have jurisdiction over the case

the case must based on federal question or diversity jurisdiction.

Diversity jurisdiction requires

that the amount of controversy exceed $75000 in damages based on good faith and

that the lawsuit is _between citizens o_f different states.

To meed the amount requirement P can aggregate his claims (arised from the same T/O)

*

Question 9

A person is a citizen of a state where( )

meaning ( ) and ( ).

A corporation is a citizen in the state where ( ) and

( )

Answer 9

A person is a citizen of a state where she is domiciled

meaning having presence with intention to make the state her home.

A corporation is a citizen in the state where it is incorporated and

has its principle place of business.

Here, P is present in Stat B and decided to remain in State B, thus P’s citizenship is in State B.V is incorporated and have their head quarters in the State C.therefore the plaintiff and defendant are citizen of different states.

Question 10

short version for SMJ

Answer 10

In order to federal court to have SMJ

the case must either arise from

federal question of law or sit in diversity and controversy be over $75K.

Here, P sued D for 10000$,the amount in controversy has been met.In conclusion,the federal court will have subject matter jurisdiction of the case between based on diversty.

Question 11

Federal Question

If there is ( ), this will give federal court SMJ.

Answer 11

If there is a question arising out of the Constitution, federal laws or treaties, this will give federal court SMJ.

*that does not mean the state court cannot hear the case sued in the court of the state

Question 12

even if the court does not have SMJ over the case,

the federal court may still hear a claim if

( )

What’s this jurisdiction?

the court may not exercise supplemental jdx over

Answer 12

Supplemental jurisdiction

even if the court does not have SMJ over the case,

the federal court may still hear a claim

that contain a common nucleus of fact

with another claim that (already)satisfies SMJ.

IF the claim arises out of the same transition or occurrences then this test is always met

The federal courts do have discretion to not hear these claim​

the court may not exercise supplemental jurisdiction over a claim by a plaintiff that would defeat complete diversity.

The common nucleus test is generally considered broader than the same transaction or occurrence test, and therefore any party that would meet the Same Tran. and Occ. test will meet the Common Nucleus of Operative Fact test.

Question 13

Do federal court have any obligation to hear every claim within their supplemental jurisdiction?

The federal court may also decline to exercise SJ when

Answer 13

No

The federal court may also decline to exercise SJ when

1) it has dismissed all claims over which it has original jurisdiction,
2) the supplemental claim rases a novel or complex issue of state law
3) the claim substantially predominates over the claim which the district court has original jurisdiction

or any other reasons exists

Question 14

What is the difference between 1) joinder, 2)impleader, 3) Interpleader and 4)Intervention?

Impleader occurs when

Interpleader occurs when

Intervention occurs when

For the federal court to hear the case,,

Answer 14

All attempt to expedite lawsuits and to achieve finalization of parties’ rights.

the courts must have proper jurisdiction over all parties (and claims) in order to hear a lawsuit

Joinder occurs when one or more parties or claims are added to a lawsuit

Impleader occurs when a third party who may be liable to that P or D. is brought into a lawsuit by the D. D has a right to implead within 14 days after serving answer.

Interpleader occurs when a third party enters into a lawsuit

usually to determine that party’s rights with regard to property at issue to avoid double liability.

Intervention occurs when the third party is allowed to join a lawsuit when he has an interst in property or transaction at issue and the judgment has the potential to impair his or her interest.The third party may become a co-plaintiff, co-defendant, or take an independent position in the lawsuit.

https://lawshelf.com/coursewarecontentview/adding-parties-and-claims

Question 15

*necessary joinder

(distinguish from joinder)

The issue may be raised any time

1) should the absentee be joined
2) can the absentee be joined
3) if not should the action proceed in his absence?

Answer 15

The court recognizes two types of joinder.

1 Necessary joinder occurs when the parties or claims must be added to the lawsuit in order for the suit to proceed.

(1) the party must be present in order to award “complete relief”, or (2) the party has an interest in the action so that his or her interest may be harmed that party appearing in the lawsuit

The SC ruled that a potential D who might be jointly and severallyliable is not a necessary party under the federal law

2 can necessary party be joined? Permissive joinder occurs when the parties or claims are permitted to be added to the lawsuit;

if they are not added, the court will still allow the lawsuit to proceed.

1) there is PJ 2) joining him will not destroy diversity

distinguish from joinder

3 if the necessary joinder cannot be joined

The court must determine should proceed or dismissed(actual likelifood of prejudice the party is indispensible)

Question 16

Differences of

*joinder of claims

*joinder of party

Plaintiffs may sue together if ( ) or ( ) and ( )

Where the additional D destroy SMD?

What is the measures for misjoinder

Answer 16

Joinder of claims 　主張の追加は自由

the joinder of any claims

a party may have against another party, even if they arise out of a different transaction or series of events.

If the claims are brought in federal court, at least one of the claims must satisfy the requirements of subject matter jurisdiction.

Joinder of party　人の追加は厳しい

Plaintiffs may sue together if they asssert a right to relief jointly severally (or parties may sue together as co P )

if

1) the claims arising out of the same T/O

2) and the claims involve a common question of law or fact.

3) smj

Where the additional D destroy SMD, the court has the power to either deny joinder, or permit joinder and to remand the action to state court.

Misjoinder of th parties is not a ground for dismissing the action.The court may sever any claim

Question 17

A D may remove a case to the federal district court

where the case could originally heve been brought in the federal court

by ( )

if

1

2

3

Answer 17

A D may remove a case to the federal district e court where the case could originally have been brought in the federal court

by filing a notice of removal with the appropriate federal court within 30 days of when the D is on notice the case is removable (but not later than 1 year in diversity cases unless the plaintiff acted in bad faith)

if

1 the case could be heard in federal court and

2 none of the D are residents in the state the case was originally brought.

3 all of the D must sign the removal notice

Question 18

after the defendant removed the case to federal court,

P is allowed to make a motion to ( )

if ( )

Answer 18

A motion to Remand

after the defendant removed the case to federal court,

P is allowed to make a motion to remand the case back to the state court the case was originally filed in

if the removal was granted improperly.

*Under hte federal removal statute

A civil action arising under the workmen’s compensation laws of the state may not be rmemoved to any district court of the US,notwithstanding the existence of diversity jurisdiction over the suit.

Question 19

( )

requires in diversity cases, federal court must apply

( )

including ( )

where federal common law is applied?

Answer 19

The Erie Doctrine

If there is a conflict between state and federal law then the court must apply the federal rule because of the supremacy clause of the consititution, (there is no conflict with respect to the breach of contract claim because there is no federal law of contract)

In federal court under diversity jurisdiction,

state laws will applies to substantive issues

(that create the rights and duties of people and entities or change the outcome of the case

including the burden of proof, statute of limitation, caps on damages elements of claims and choice of laws) 個別に判断したがよい

federal law generally applies to procedual issues( that include Transfer of venue,,federal rules of evidence or procedure, right to a jury trial) Transfer of venue is afederal procedural issue)

Federal common law is applied where Congress has given the courts the power to develop law ( cf bankruptcy law, admiralty, ,)

or state law would frustrate federal objective.

In determining whether to apply federal common law in diversity cases, courts will balance the federal and state interests.

The preclusive effect of a federal court’s judgment in diversity is determined by federal common law which incorporate the a law of the satate in which the federal cout that issued the judgment is situated.

http://cristinalipan.tripod.com/id24.html

Question 20

choice of law other than erie

the forum court should apply the choice of law rules of..

Answer 20

distinguish the choice of law rules and the law directed by the choice of law

choice of law other than erie

the forum court should apply the choice of law rules of

1) express choice of law clause
2) research and check the rules of each jurisdiction

the general rule

the situs*(the site of where the property is located).

Usually the choice of law rules of the situs

would then direct the foum court to apply its own local law

However, on collateral matters.the choice of law rules of the situs may apply the law of the state with the most significant interest in determining the issue (such as the fraud was perpetrated)

Question 21

In federal court( including diversity case),

venue is proper where

1

2

or

3

A court may transfer a case to a different venue

if

Answer 21

A forum selection clause will be enforced by means of a motion to transfer in the interest of justice.

In federal court,

venue is proper

1 where any D resides if all Ds reside in the same state,

(when D do not live in the same state)

2 where a substantial part of the events on which the claim is based occurred.(or where any Dis subject to the court’s PJ with respect to such action)

A court may transfer a case to a different venue

1 )if the case is filed in the wrong venue (or a court may dismiss the case), the court transfer the case to any other district or division where the action might have been brought

The case may not be transferred to a state court from a federal court under a motion to change venue the court should dismiss the case.

or

2)for the convenience of parties and witnesses and in the interest of justice by court’s discretion

A court must either dismiss the case or transfer the case to a venue where the action could have been initially been brought.However, the court disfavor dismissals even venue is improper.

• california*
• Venue is proper in a local action, one involving real property, in the county in which the real property lies.*
• For a transitory action, venue is generally proper in a California Superior Court in any county where any defendant resides.*
• For contract actions, venue is additionally proper in the county where the contract was entered into and the county where the contract was expected to be performed.*
• For tort actions, venue is proper in the county where the act or omission giving rise to the tort occurred.*
• If no venue is proper following the application of these rules, then venue is proper in any county in which a court has personal jurisdiction over the defendants*

Question 22

Complaint contains

Answer 22

Complaint

the complaint contains short and plain language, identifying the parties and relief requested.

Complaint must include not just legal conclusion but facts that makes a claim plausible not merely possible

Question 23

Serveice of process

A complaint must be served within ( )

The P must served D with ( )

(If the Pincludes a formal request for the D to waive service ( )

The process server must be( )

A P can follow ( ) where the federal court

is located or where service is made.

P deliver it to 1 ,2 ,3

Answer 23

A complaint must be served within 90 days after it is filed.

The P must served D with a summons and copy of the complaint.

(If the Pincludes a formal request for the defendant to waive service Two copies of the waiver form)

The process server must be over 18 years old and not a party to the case.

A P can follow the state law methods where the federal court is located or where service is made

deliver it to

1 individual personally (if corporation managing or general agent )
2 an agent appointed by D

3 leave it at the P’s usual place of abode with a person of suitable age and discretion who resides there

Question 24

An answer or motion must be served within days(or days if formal process was waived) after the complaint is served.

An answer may be ( ) as of right within ( )days

iF there is no right to amend,,

Answer 24

An answer or motion must be served within 21 days(or 60days if formal process was waived) after the complaint is served. An answer may be amended as of right within 21 days(Complaint,too)

iF there is no right to amend, the party may seek leave of court ,

it will be granted if justice wo requires,

Question 25

counterclaim is

compulsory counterclaim is

Answer 25

counterclaims are claims the D may have against the P

if the counterclaim arises out of the same transaction or occurrence as the P claim

it is compusory counterclaim and must be pleadd in th answer

or D woll be barred from bringing it at a later time

Question 26

After the plaintiff files the complaint

the defendant may if chooses file a motion and raise any or all of the following defenses under FRCP12(B) if the motion is denied, d

has days after the court ‘s denial to answer.

1)

2)

3)

4)

5)

6)

7)

Answer 26

the defendant may if chooses file a motion and raise any or all of the following defenses under FRCP12(B)

1) lack of personal jurisdiction
2) lack of SMJ
3) improper venue (if a party is added it will change)
4) insufficiency of the process
5) insufficiency of service of process
6) failure to state a claim upon which relief may be granted
7) failure to join a necessary party

7)

Question 27

Relation back to chan D is available if

CA Relation back a fictitious D

Relation back is available to add new claims after the statute of limitations has run

if

1

2

3

.

Answer 27

Relation back to chan D is available

if P sued the wriong D but the right D knew about it.

CA Relation back a gictitious D

1) original complaint was filed before the statute of limitation ran
2) P was genuinely ignorant of the identity of the D
3) P pleaded that ignorance in the original complaint

IF the P substitutes hte true D within 3 years of filing,

it retaltes back

Question 28

The issue is whether P can add a new cause of action after the statute of limitation has expired.

The statute of limitation

The party has to file within ( )

Relation back doctrine

Amended pleadings relate back to ( )\if the new claim ( )

Amendment of pleadings

A party may amend its pleadings within( ).

In all other case, a party may amend its pleading only with ( ).

.

Answer 28

The statute of limitation

The party has to file within the statute of limitation from the time that they first become aware of injury.

Relation back doctrine

Amended pleadings relate back to the initial action’s filing date within the statute of limitation if the new claim arouse out of the same occurrence or transaction.

amended pleadings relate back to the initial action’s filing date within the statute of limitation

if the new claim arouse out of the same occurrence or transaction.

Amendment of pleadings

A party may amend its pleadings once as a matter of course within 21 days after serving it, or 21 days after service of a responsive pleading or motion.

In all other case, a party may amend its pleading only with the opposing party’s written consent or the court’s leave

Question 29

which is better for the defendant

to answer

or to fline a 12(b)motion?

Answer 29

Filing a pre answer motion will extend the amout of time available

to answer.

This is because even if the D loses the motion

the D will still have 14 days to then file the answer.

(also , it begin the clock on his right to amend the answer within 21 days of service)

Question 30

A party may make a motion for ( )

that can ( ).

The item itself doesn’t have to be ( )

Discovery tools are actions or tools such as (D, i, p and r )

Answer 30

A party may make a motion for the purpose of discovering any non privileged evidence that can reasonably lead to discovery of admissible evidence.

The item itself doesn’t have to be admissible evidence.

Discovery tools are actions or tools such as Deposition, interrogatories, physical and mental examinations and requests for production

Question 31

DEPOSITIONS

INTEROGATORIES

REQUESTS TO PRODUCE

PHISICAL OR MENTAL EXAMINATION

In CA

REQUEST FOR ADMISSION

Answer 31

DEPOSITIONS

Can depose non parties and parties . non party should be subpoenaed

Deponent gives sworn oral answers to questions by counsel

Recorded and a transcript can then be made

Provides for a maximum of 10 people no longer than 7 hour each not 100miles from her residence

INTEROGATORIES

Question in writing to another party to be answered in writing under oath.

The party can say she does not answer only after reasonable investigation

REQUESTS TO PRODUCE

Make available for review or copying various document

Or permit entry on designated property for inspection

PHISICAL OR MENTAL EXAMINATION

Only available through the court order

The party’s health is in actual controversy and good cause (need it and cannnot get it elsewhere)

the party chhoses the suitably licenced person.

In CA if it is a physical exam, the lawyer for the person has the right to attend the examination (in mental exam, only if there is a court order allowing it)

REQUEST FOR ADMISSION

Request to admit the trugh of any discoverable matters such as authenticate document

Question 32

Work product

work product is generally protected from discovery.

Work product must have been created in ( )

there are two types of workproducts.

1)

2)

,,,, is discoverable if Plaintiff shows that

In ca, the work product must be generated by an …

Answer 32

Work product

work product is generally protected from discovery.

Work product must have been created in anticipation of litigation.

(In ca, the work product must be generated by an attorny or her agent)

1 )Documents containing subjective thoughts such as opinions or mental impressions of a party’s lawyer or other representatives are given absolute immunity from discovery

2)all other documents is discoverable if Plaintiff shows that

1 substantial need and

2 undue hardship in obtaining the material in an alternative way

To determine these the court will consider the cost of obtaining the desired information, the finances of the party seeking , the hostility of the witness to the discovering party

• Here,*
• The E seeks to obtain information regarding the physician’s research prior to and after the patient’s death. This was research the physician conducted prior to and outside of the hospital’s litigation*
• Therefore, it cannot be said that the physician’s research qualifies as material produced in anticipation of litigation and thus would not qualify as work product.*

Question 33

The party seeking sanction must certify to the court

that …

there are 3 main ways discovery problems are presented to court

1)

2)

3)

Answer 33

The party seeking sanction must certify to the court that she tried in good gaith to get the information without court involvement

1) seek protective order if

a the request is overburdensome or

b involves trade secret

c electronically stored information is not reasonably accessible

d work product

2)partial violation

receiving party can get order compelling the party to answer

if the party violate the order, at the judges choise

judge may RAMBO sanctions

establishment order

strike pleading of the disobedient party

disallow evidence

dismiss the case

enter default judgment against D

3) total violation

receiving party fails to attend deposition,respond to interrogatories or requests for production.

The judge may goest to RAMBO sanction without compelling order

Question 34

Discovery conference and disclosure

26(f) conference

16(b)conference

Pretrial disclosures

pretrial order

R11 sanctions

Answer 34

Discovery conference and disclosure

26(f) conference in

initial disclusures of DISS (damages calculation,insurance agreement the identity of supporting witnesses and supporting documentes) made

16(b)conference

the courts enteres a scheduling order and deadlines for motions

16(c) Pritrial order that identified all of the witnesses at trial and all the documents intended to offer into evidence(the court should modify a final pretrial order only to prevent manifest injustice)

Pretrial disclosures

30 days before trial

a party must disclose the identity and reports of experts, the names of witnesses to be called at trial documents and depositions the parties plan to ofer at trial .

R11 sanctions

Question 35

Either a P or a D can file a summary judgment before ( )

The issue is whether there is ( )

The moving party must produce evidence to show ( )

The( ) to the non moving party which must produce evidence to show ( )

The motion is looked at ( )

The party may file a motion for summary judgment at any time until ( )

Answer 35

Either a P or a D can file a summary judgment at any time until 30 days after the close of all discovery.(before go to trial)

The issue is whether there is ( a genuine issue of material fact )

The moving party must produce evidence to show (there is no genuine issue of material fact )

The ( burden then shifts to the non moving party which must produce evidence to show there is a genuine issue of material fact )

The motion is looked at (in the lifht most favorable to the non moving party

The issue is whether there is a genuine issue of material fact

SJ is granted against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case.

A summary judgment can be based on preclusion.

The party may file a motion for summary judgment at any time until 30 days after the close of discovery.

Question 36

issue preclusion

Once a …

1

2

3

Nonmutual defensive issue preclusion

Nonmutual offensive issue preclusion

Answer 36

Once a final valid judgment on the merits has been rendered on the issue acctually litigated and determined and essential to the judgement , the claimant is barred by issue preclusion from asserting the same issue of action in a later lawsuit.

There must be

1 the first case must have ended with a final judgment on the merits and

2 the same is is actually litigated an determined and

3 the issue was essential to the judgement

4 against one who was a party to Case 1

In traditional view only by one who was party to Case 1

In modern view

One who was party in case 1 but who is D in case 2 can assert issue preclusion

One who was not a party in Case 1 but who is plaintif in case 2 cannot assert issue preclusion unless if it is not unfair

Court considers following facters

1) D had a full and fair opportunity to litigate in Case 1
2) D could foresee multiple suit
3) P could not have joined easily in case 1
4) there are no inconsistent judgment on record

Question 37

claim preclusion(res judicata)

Once a …

1

2

3

In Ca

Answer 37

claim preclusion(res judicata)

Once a final valid judgment on the merits has been rendered on particular cause of action, the claimant is barred by claim preclusion(res judicata)from asserting the same cause of action in a later lawsuit.

(Res judicata bar a second suit between the same parties or parties in privity with them on the same cause of action)

There must be

1 the first case must have ended with a final judgment on the merits and

2 the parties in the case one are identical parties(the same configuration) in case two

or their privies(or entities that are in privity with the parties)

ex employer is in privity with employee baesd on the employer-employee relationship

3 and the claim is the same in both cases. (sometimes merged )

In Fed

claim means transaction or occurence

In CA under primary rights theory

one cause of action for each right invaded

• Ex a single accident caused both personal injuries and property damages*
• In federal both cases involve the same claim(same TO) therefore the court must dismiss the second case under claim preclusion.*
• there would be 2 cause of action(different primary rights)*
• Ex a claim for negligence and a claim for injunctive relief*
• Fed// the claims for legal and equitable relief are considered to be the same,*

Question 38

claim preclusion

Answer 38

MBE

be careful which sues which , if Defendant of the suit one is plaintif in the suit two, the configuration of the parties does not much

Question 39

Issue preclusion( )

Issue preclusion bars( )

In order to have issue preclusion

1 the first case must

2 The issue

3 The issue

4

Can non party of the first case assert issue preclusion?

If the first case was decided in state court

what preclusion rules will the second court apply?

summary judgement would be final judgment if

Answer 39

Issue preclusion(collateral estoppel)

Issue preclusion bars relitigation of particular issue litigated and determined before .

In order to have issue preclusion

1 the first case must have ended with a final judgment on the merits and

2 The issue must have been actually litigated and determined

3 the issue was essential in the determination of the case.

4 Issue preclusion is applicable only against one who was a party to case 1

• Traditionally the mutuality principle is required , modernly some state including California allow non party to assert issue preclusion where it would not be unfair to do so.*
• The court look the D had full and fair opportunity to litigate and could foresee multiple suit, P could not easily join the case 1*

If the first case was decided in state court,the second court (whehter state or federal) will apply the preclusion rules of the jurisdiction that decided the first case.

The preclusive effect of a federal court’s judgment is determined by federal common law that incorporates the law of the state in which the federal court that issued the judgment is situated.

(not elie!)

summary judgement would be final judgment if

once P voluntarily dismissed his claim and

the statute of limitation expired

Question 40

What is the standard and timing of

JAMOL

the standard for granting motion is

( )

D may file this motion( )

Either party may file it ( )

Renewed ( )

To make this mortion the party ( )

within ( )

Answer 40

JAAMOL Judgement as a matter of law

the standard for granting motion is that viewd in the m light most favorable to the non moving party ,reasonable jury could not disagree on the result

timing

D may file this motion after P rests its case

Either party may file it after D rests its case

Renewed JAAMOLjudgement as a matter of law

To make this mortion the party (has already made a motion for JAAMOL)

within (28 days of the entry of the jury’s verdict)

Question 41

what is the standard and timing for

New trial

It is granted

must be brought within ( )

May the court may order a new trial?

Relief from judgement

must be brought within ( )

Appeal

One can appeal on the case when there is ( )

must be brought within ( )

Answer 41

what is the standard and timing for

New trial

it is granted if there were errors or the jury’s decision was against the great weight of evidence,

it may also granted if the verdict is excessive or inadequte.

must be brought within 28 days of the entry of the jury’s verdict.

the court may order a new trial on its own

Relief from judgement

must be brought within 1 year of the judgement(some exceptions)

Appeal

One can appeal on the case when there is a final judgment had been rendered.

(denyal of the motion was not final judgement on hte merits)

must be brought within 30 days of the entry of the jury’s verdict.

Question 42

Motion to dismiss:

Motion to strike or “Demurrer”:

Answer 42

Motion to dismiss:
A motion to dismiss asks the court to dismiss either whole or part of a complaint, counterclaim, or crossclaim.

Motion to dismiss:
A motion to dismiss asks the court to dismiss either whole or part of a complaint, counterclaim, or crossclaim.

Motion to strike or “Demurrer”:
a motion to dismiss for failure to state a claim on which relief can be granted.

FRCP12(f)allows a party to file a motion to strike an insufficient and irrelevant defense within 21 days of service of the pleading.(if the motion is denied , D can then file a reply to the P’s answer.

Question 43

Voluntary dismissals

with prejudice?

Execption?

Involuntary dismissals

with prejudice?

Answer 43

Voluntary dismissals

usually without prejudice

Exception

if the P voluntarily dismisses a case twice the second

dismissal is with prejudice and the P cannot refile the lawsuit

that arises out of the same facts.

Involuntary dismissals

ususally with prejudice

Question 44

3 type of Class action

which type requires notice to all members of the class?

The member will be bound without notice?

Answer 44

1) separate actions would create a risk of inconsistent results
2) injunctive or declaratory relief is appropriate for the class as a whole
3) common question of fact or law to the class predominate over individual issues

For 1),2)all members of the class will be bound by the judgment rendered in class action lawsuits regardless of whether notice was mailed.

Question 45

class action is proper if

1 )numer i

2) com
3) typ rep

Answer 45

class action is proper if

1)Questions of law or fact are common to the class

but

2) The class is so numerous that joinder of all member is impracticable
3) Named parties’ interests are typical and adequately represent the interests of class member (not necessary

Since the requirements for class action derive exclusively from equity, the issue regarding whether the requirement for certification have been met are reserved for a judge and not a jury.

3types of class action

1 Separate actions will create inconsistent results or impair unnamed parties’ interests

2 Injunctive or declaratory relief is appropriate for the class as a whole

3 Common law or fact questions predominate over individual issues

Question 46

CAFA allws a federal court to have jurisdiction over a class where

Answer 46

The Class Action Fairness Act allows a federal court to have jurisdiction over a class action if there are 100 or more plaintiffs seekinf over $5 million and have minimal diversity

Question 47

In CA

to buring a class action ,

she must show

1)

2)

Inconidering whther there ies well defined community of interest

The court will consider

In CA

there are no 3types of class and notice can be by …

the court are not required to appoint class council.

settlement or dismissal must be approved by the court

Answer 47

1) an ascertainable class and
2) a well defined community interest

The court will consider

1) common question predominate
2) the representative is adequate
3) the class will result in substantial benefit to the parties and the court

The notice can be by publication.

Question 48

The foreign manufacture’s knowledge that its machines were being advertised, sold, and delivered to the State X company by an independent State Y distributor enough to legitimate the assertion of jurisdiction where the manufacturer had not advertised, sent foods or in anyway targeted State X?

Answer 48

The Supreme Court rejected a state’s exercise of personal jurisdiction over a foreign company whose product was sold by distributors throughout the U.S. Where the foreign company did not engage in conduct purposefully directed towards that state.

Question 49

how courts will apply the preclusion law?

1)If the earlier judgment was rendered by a state court …

under

2) If the earlier judgment was rendered by a federal court that had federal question…
3) If the earlier judgment was rendered by a federal court having diversity jurisdiction, ….

Answer 49

1)If the earlier judgment was rendered by a state court

the state preclusion law applies under the Full Faithe and Credit Clause.

2) federal preclusion law applies
3) federal preclusion law applies.

but federal common law calls for applying the preclusion law of the state in which the federal court that issued the judgment sat.

Question 50

Additur is ..

Remittitur is ..

Answer 50

The judge can choose to conditionally order a new trial unless the plaintiff agrees to reduce the damages awarded(remittitur) or the defendant consents to raising the damages awarder(additur).

Remi tti tur is a valid in federal court but a ddi tur has been found in violation of the seventh amendment and is therfore not allowed in federal trials.

Question 51

Seventh Amendment provides…

Federal jury must have

or more members participanting in the verdict.

IF legal and equitable claims arising out of the same common facts are joined,.

``

Answer 51

Seventh Amendment guarantees that in suits at common law where the amount in controversy exceeds $20 the right of a jury trial by jury .

This provision only applies to federal trials(including diversity case) and has never been applicable to state trials.

historically, what claims were available in equity in 1971 (not guarantee under maritime law, many parts of patent cases)

ejectment is legal remedy

6

The legal claim shoud be tried first by the jury and then the equitable claim to the court.

At least six will be left to render the verdict

Question 52

Juey trial demand must be..

Answer 52

A jury trial demand must be served no later than 14 days after service of the last pleading directed to the issue on which a jury saught.

The court may also try any issue with an advisory jury and

try any issue by a jury as long as all parties consent

Question 53

dismissal for cause

preemptory challenge

Answer 53

dismissal for cause

When a juror is dismissed for such bias or connection

preemptory challenge

each party may dismiss a certain number of other prospective jurors

without showing cause

A new trial is appropriate if a juror failed to disclose information during voir dire

failed to answer honestly a material question

a coorect response would have provided a valid basis for a challenge for cause

Question 54

IF legal and equitable claims arising out of the same common facts are joined,.

Answer 54

The legal claim shoud be tried first by the jury and then the equitable claim to the court.

Question 55

Mbe is trying us to confuse …

Answer 55

claimant in the earlier case and defendant in the earlier case

Be careful who was claimant and party in the earlier case and the second case

Question 56

3 grouds for ordering an involuntary dismissal

An involuntary dismissal are to operated as adjudications on the merits except for

Answer 56

involuntary dismissals

courts have the power to order involuntary dismissals on

their own motion

1) if the plaintiff failed to prosecute
2) f the plaintiff failed to comply withe FRCP or any order of court
3) if the Plaintiff failed to show a right to relief

relief based on the fact and law

An involuntary dismissal are to operated as adjudications on the merits except for

dismissal for lack of jurisdiction

dismissal for improper venue

dismissal for failure to join a party

dismissal that the court in its order specifies to be without prejudice

Question 57

A default judgment is

Answer 57

a judgment, with the same effect as any other judgment, that is entered because the defendant did not oppose the case

If a party agaisnt whom relief is sought has failed to plead or defend,the clerk of the court must enter a default of that party.

If the defendant has appeared but not answered he must e notified at least seven days before the hearing of default judgment,

Question 58

Generally, only the final judgment is appeal able

However… may be appeal able even if there is not final judgment

1

2

3

4

5

6

Answer 58

1 interloqutory order

2 interloqutory appeals act

3 collateral order

4 partial judgment

5 extra ordinary writ

An appellate court may compell the trial judge to make oar vacant a particular order

6 class action certifacation

Appellate court has discresion to review order granting or denying certification of class action,

must seek review within 14 days of order,

Question 59

for appellates court may hear an appeal when…

… must be filed in … within

Appe llate courts apply a ….. standard when ….

Appe llate courts apply a ….. standard when ….

Answer 59

there is final order on the merit.

(Generally, only final orders are reviewable on appeal)

The final order is ..

one that disposes of the whole case on its merits,by rendering final judgment not only as to allthe parties but as to all causes of action involved

Notice of appeal must be filed in trial court within 30 days after entry of final judgment.

Appe llate courts apply clearly error neous standard when reviewing the fact finding of a judge in a bench trial.

A federal appeals court will generally overturn a jury verdict on fact finding error only f there is complete absence of proof on some material issue.

Appellate courts apply the use the abuse of discretion standard when reviewing discretionary rulings by the trial court,such as evidentiary or discovery rulings.

Question 60

The federal standard to grant a new trial on motion is

Answer 60

that the verdict is against the weight of evidence or

is based on evidence that is false or will result in a miscarriage of justice.

grouds

prejudicial error

new evidence that could not have been obtained with due diligence for the original trial

prejudicial misconduct of a perty or juror

Question 61

Generally, only final orders are reviewable on appeal)

The final order is ..

one that disposes of the whole case on its merit

by rendering finala judgment not only as to all the parties but as to all cause of action involved.

However, When more than one claim or there are multiple parties

the trial court may render a final judgment as to one or more ,but fewer than all claims or parties only if

Answer 61

only if the court expressly determines that there is no just reason for delay.

Question 62

A claim may be immediately appeallable if

Answer 62

1) the lower court must have conclusively determined the disputed question
2) he issue must be separate from and collateral to the merit of the main issue of the case
3) the issue must be effectively unreviewable on an appeal from the final judgment .

used only for extreme cases

involving matters of immunity and double jeopardy where there exists such a right so as not to even stand trial

Answer 63

Losing party must preserve the issue at trial court

Question 64

1 interlocutory appeals act allows,,,

2 interlocutory orders(as of right) are…

Answer 64

1 Interlocutory Appeals act (torii no naka ni 6)

interlocutory appeals act allows

appeal of non final order if

trial judge certifies that it involves an important legal question

as to which there is substantial ground for difference of opinion

and the court of appeals agree to hear it.

2 inter locutory orders allows appeal of non final order.

inter locutory orders include injunction, appointing receivers,patent infringement,attachment

Question 65

Limited civil cases, civil cases in whith the amount in dispute >>>

are governed by statutes that limit peadings and discovey. also cannot get a permanent injunction.

Reclassification

If a case is misclassified or if subsequent events make it so

the court reclassifies the case

Answer 65

does not exceed $25000

1) aggregate the P’s claims if therei s one P and D
2) P sues D for 6000, D files a cross complaint against P for 12000,

Because hte cross complaint is unlimited , entire case is unlimited,

the entire case is reclassified as unlimited .

Question 66

If all the Ds are non residents of CA venue is proper in

Answer 66

If all the Ds are non residents of CA venue is proper in any couty at all

Question 67

Under the CA civil procedure,

D must be served with process(summons and a copy of complaint)

the methods of service includes

Answer 67

1 personal service

2 substitute service

only if personal servise was not possible

process is properly served if process is left

1)at D’s usual abode or mailing adress

with competent member of the house hold who is at lest 18

3)mailed by first -class mail.

(sustituted service deemed effective 10 days after the mailing)

3 corporations and other business

deliver process to agent for service of process or

to an officer , or general manager.

4) waiver by mail

Fed has 30days to return waiver form

Ca has 20days

service is deemed complete when the D executes the waiver

4 corporations and other businesses

5 waiver by mail

Question 68

Complaint must include

1)

2)

Answer 68

Complaint must include

1) statement of facts consituting the cause of action

(in Fed Claims) (ultimate facts)

2)demand for judgment for relief

Question 69

General;;; can be

Special;;;ca be

Motion to ::::can be used to assert

Motion to

Answer 69

General demurrer can be used to assert some defenses including

federal motion to dismis for faiilure to state a claim

lack of SMJ

Special demurrer can be used to assert manya defenses , including

lack of capacity,claim preclution,misjoinder of parties

Motion to quash service of summons can be used to assert

1) lacek of PJ
2) improper process

This motion must be made before or with a demurrer , answer or motion to strike or waives these defense,

Motion to strike is a motion to the court to strike irrelevant, false or improper matter.

Question 70

CA Anti ::::::: motion to strike.

Answer 70

Anti SLA: motion to strike

SLAP is strategic lawsuits against public participation.

if D shows P’s cause of action arises from protected activity (the valid exercise of free speech and petition on a public issue)

the burden shifts to the P to show the probability of winning on the merit.

Question 71

A judge must make….

However ,Grant of denial of a motion for summary judgment or FRCP 12 (b)(6)motion for dismissal or failure to state a claim need not be

Answer 71

A judge must make specific finding of fact and state his conclusion of law when rendering a judgment following a non jury trial.

However ,Grant of denial of a motion for summary judgment or FRCP 12 (b)(6)motion for dismissal or failure to state a claim need not be accompnied by finding of fact and conclusion of law.

Question 72

A party must provide certain information such as ….

early in the case without awainting a discovering request,

Answer 72

A party must provide certain information such as

identification of witnesses

document and tangible things a party plans to use

early in the case without awainting a discovering request

Failure to disclose the affidavit precludes him from then using that affidavit to aoppose the motion for summary judgment

Question 73

MBE

Answer 73

issue preclusion claim preclusion は何度やっても間違える

当事者に注目していると別の要点が欠けている

Question 74

Civil Rule 15 allows a plaintiff to amend her complaint…

Usually courts

When a complaint is amended to include a new claim..

Answer 74

Civil Rule 15 allows a plaintiff to amend her complaint once before the answer is filed or anytime thereafter with consent of defendant or permission of the court

Courts freely grant leave to amend a complaint unless substantially prejudice the D

When a complaint is amended to include a new claim, it _relates back to the date of the original filing as long as the claim arises out of the same transaction or occurrenc_e

Question 75

complaint is a

complaint is constituted by

(1)

(2)

(3)

P must plead fact supporting ( ) claim

How about in CA

Answer 75

Complaint is a pleading which commences an action

Complaint is constituted by

(1)statement of grounds for smd

In CA don’t have to

(2)short and plain statement of the claim

In CA “ cause of action” not “claim”

(3) demand for relief

In CA must state amount unless personal injury , punitive damages

P must plead fact supporting plausible claim

If the matter is fraud, mistake or special damages, P must plead with particularity.

Question 76

May state courts hear the case arising from under federal law?

Answer 76

Yes A state ecourt may hear cases arising under federal law if there a re no restrictions established by Congress on where jurisdiction is proper for a particular claim

Question 77

Since this is a case that( ) , Defendant is not( ), and all defendants ( ) , within ( )

the reminder is proper.

Answer 77

Since this is a case that could have originally been brought in federal court, Defendant is not a resident of the state in which the action was filed, and all defendants at the time joined in the removal, within 30 days of the last pleading giving rise to a removal action and cannot in any cases be more than a year since the filing of the lawsuitremoval is proper.