Civil Procedure

Question 1

Do plaintiff’s claims have to be related to aggregate for jurisdictional amount?

Answer 1

No

Question 2

What jurisdiction’s rules apply regarding service?

Answer 2

FRCP allows service pursuant to rules used by the state in which the fed court sits and in which service takes place

Question 3

How long does a defendant have to file if they waive the right to service?

Answer 3

Normally have 21 days to Answer; Upon a waiver, they have 60 days from the date the plaintiff mailed the summons and complaint

Question 4

When can a party recover costs and fees for a motion to compel discovery?

Answer 4

If the party provides certification that they made a good faith attempt to confer with the opponent to obtain the discovery without court intervention

Question 5

When can a plaintiff dismiss their case without the defendant’s assent?

Answer 5

They can dismiss at any time before the defendant files an Answer or an MSJ; If there’s a pending counterclaim, the case can’t be dismissed over the defendant’s objection unless the counterclaim remains pending

Question 6

Required notice to the defendant in a motion for default

Answer 6

If the defendant has made an appearance, even if there is no Answer filed yet, they must be given notice by 1st class mail at least 7 days before the hearing

Question 7

When is an expert’s opinion discoverable?

Answer 7

If that expert is intended to testify
If the expert will not testify, their opinion is discoverable only upon showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means

Question 8

In a federal question case, when is an action deemed commenced for Statute of Limitations purposes?

Answer 8

When the complaint is filed with the court

Question 9

When may the clerk of court sign and enter a default?

Answer 9

When the plaintiff’s claim was for a sum certain and the default was entered because the defendant failed to appear

Question 10

How can a party request a jury trial?

Answer 10

The party generally must file a written demand and serve it on all the parties within 14 days of the service of the last pleading directing to the jury-triable issue (i.e. the Answer)

Question 11

In what order will the court hear claims that are not all jury claims?

Answer 11

The Court will hear the jury claim first even if it is a counter-claim, and then will decide the non-jury claim if it was not already resolved by the jury

Question 12

What is the standard of review for a renewed motion as a matter of law?

Answer 12

De Novo

Question 13

What is the standard of review for a new trial motion?

Answer 13

Abuse of discretion

Question 14

Can a federal case be removed to state court?

Answer 14

Removal to state court is not available for cases that are properly filed in federal court and that are within the federal court’s SMJ

Question 15

What is the standard of review for a failure to give a jury instruction?

Answer 15

If the party objected on the record before the instructions are given: Abuse of Discretion

If the party fails to object: Plain Error

Question 16

Does the judgement have to be fully satisfied for claim preclusion to apply?

Answer 16

No

Question 17

When can a plaintiff dismiss their claim?

Answer 17

The plaintiff can voluntarily dismiss without leave of court before the defendant files an Answer and it will not be barred by claim preclusion (this can only be done once)

Question 18

When can a nonparty later use a previous judgment offensively?

Answer 18

If the court determines it’s fair and equitable for the nonparty to do so

Question 19

Preliminary Injunctions Balancing Test

Answer 19

The more likely the movant is to win on the merits, the less weight is given to the possible harm suffered by the defendant

Question 20

Interactive Site Test

Answer 20

The more interactive the site, the more likely there’s general personal jurisdiction
Specific PJ: Many courts hold this when a writer intentionally targeted readers in the plaintiff’s home state

Question 21

Is a matter that isn’t directly relevant to a claim/defense discoverable?

Answer 21

Yes, as long as it’s relevant to the general subject matter involved in the action and the court finds good cause for discovery

Question 22

When are personnel records discoverable?

Answer 22

If the requesting party’s interest outweighs any privacy interest infringed by the disclosure

Question 23

When is a default judgment entitled to preclusive effect?

Answer 23

If the federal court had SMJ and PJ over the parties; The losing party is barred from asserting defenses that could have been raised in the first suit

Question 24

Post-judgment JMOL

Answer 24

Motion must be made within 10 days of the verdict and the party must revive the previous JMOL made at the close of ALL evidence (making the motion solely at the end of the plaintiff’s evidence is not sufficient); Can only be on the grounds advanced in the pre-verdict motion
Some courts will allow even if reviving a JMOL only made at the close of the plaintiff’s evidence if the evidence introduced by the defendant was brief and could not possibly change the court’s decision on the earlier motion

Question 25

Are joint tortfeasors permissive or necessary?

Answer 25

Permissive; A defendant cannot compel a possible other tortfeasor to be joined as a co-defendant

Question 26

Service on a foreign corporation

Answer 26

The court can authorize any method if no international agreement prohibits it

Question 27

Choice of law: when contacts are thoroughly split among several jurisdiction

Answer 27

Courts applying the most significant relationship will pay special attention to the principals for making choice of law decision (i.e. the policies of the laws in conflict and on any interest of its own state in having its policies apply)

Question 28

Conflict of Law: Local and Foreign law

Answer 28

Where both jurisdiction’s policies would be furthered by applying their law, most courts will apply local laws unless there’s a strong reason not to

Question 29

Collateral Order

Answer 29

Conclusive determination of an independent issue and delay in review would effectively preclude the losing party from an opportunity to vindicate its rights on appeal

Question 30

Writ of Mandamus or Prohibition

Answer 30

To confine trial judges to the lawful exercise of their jurisdiction or to compel them to act if they abdicated their jurisdictional obligations; Only used in exceptional circumstances

Question 31

Pendent Appellate Jurisdiction

Answer 31

The moving party must show the two rulings are inextricably intertwined or that meaningful review of the ruling over which the court has jurisdiction wouldn’t be possible without review of the appealable ruling

Question 32

Is a judgment entered pursuant to a settlement precluded by issue preclusion?

Answer 32

No

Question 33

Colorado River Abstention

Answer 33

The mere fact of duplicative litigation isn’t enough; There must be evidence of other factors that militate against federal litigation such as risk of inconsistent rulings or clear evidence of federal policy favoring unitary adjudication of the claims at issue

Question 34

Class Certification: Typicallity

Answer 34

Requires the claims to stem from a single event or to be based on common legal theories. Courts are hesitant to certify where the claims of injured persons will be represented by a representative with no person injury or where personal injury claims are lumped with non-personal injury claims

Question 35

Class Certification: Adequacy of Representation

Answer 35

Requires 1) whether the representative’s interests are aligned closely enough with other class members to ensure fair representation and 2) class counsel is experienced and qualified

Question 36

Plaintiff’s claims against third party complaintant

Answer 36

Supplemental jurisdiction in diversity cases does not extend to claims by the plaintiff against persons brought in with a third-party complaint unless there is an independent basis for jurisdiction

Question 37

Motion to Dismiss: SMJ v. no cause of action

Answer 37

When Congress doesn’t state in the statute that the definitional requirement is a jurisdictional prerequisite, courts should treat it as non-jurisdictional, and rather an element of the cause of action

Question 38

Forum selection clauses and Transfer

Answer 38

The clause must be treated as a significant factor, but not dispositive - It should be granted if doing so would give effect to a freely negotiated and fair forum selection clause (a.k.a. no special hardship or denial of justice to either party)
A forum selection clause in an international K should control absent a strong showing it should be set aside

Question 39

When is a party subject to sanctions for failing to provide a deponent?

Answer 39

Always, even if the party would be beyond the reach of the court’s subpoena power if the party were a non-party witness

Question 40

How many jurors must a trial start with?

Answer 40

At least 6, but the parties can stipulate to a verdict with less

Question 41

Standard of review when reviewing findings of fact made by the trial court in a bench trial

Answer 41

Clearly erroneous standard

Question 42

Standard of review for judicial rulings on the admissibility of evidence in a jury trial

Answer 42

Abuse of discretion

Question 43

Proper timing for a jury demand

Answer 43

Within 14 days after the last pleading directed to the issue for which a jury is sought, i.e. the answer

Question 44

What law governs preclusion?

Answer 44

The law of the jurisdiction where the original suit was decided

Question 45

What must the court include in the post scheduling conference order?

Answer 45

Limits on the time to join other parties, amend the pleadings, complete discovery, and file motions plus set the limits of discovery and set dates for pre-trial conferences and trial

Question 46

Interrogatories

Answer 46

Can serve up to 25 only after the parties have conferred to arrange for initial disclosures and prepare a discovery plan

Question 47

Can a plaintiff reply to an Answer?

Answer 47

Yes but they must seek leave of court except to answer a counterclaim included in the Answer
The better option is a Motion to Strike

Question 48

When must 3rd Party Complaints be filed?

Answer 48

Within 14 days of filing of the Answer, otherwise through leave of court

Question 49

Can a party amend their complaint following the entry of a final judgment?

Answer 49

Only if they first move to alter, set aside, or vacate the judgment pursuant to Rule 59 or 60

Question 50

What law governs transfer of venue?

Answer 50

Federal

Question 51

Is a TRO immediately appealable? How long are TROs allowed for?

Answer 51

No, but it will be once it matures into a preliminary injunction
TROs are only allowed for 14 days unless the court extends it for good cause or the adverse party consents

Question 52

Renewed JMOL

Answer 52

The court must let jury’s verdict stand if there’s substantial evidence supporting the verdict, assuming the jury resolved all disputed issues in the non-movant’s favor

Question 53

Third Party Claim

Answer 53

Can only be for derivative liability and requires more than simply alleging the plaintiff sued the wrong defendant

Question 54

When is a juror’s action presumed prejudicial?

Answer 54

When the juror deliberately sets out to gather facts extrinsic to trial because this act involves reprehensible conduct directly contrary to the court’s instructions

Question 55

What is the proper recourse when a federal court lacks personal jurisdiction?

Answer 55

The plaintiff can file the action in a court in a proper state where there is PJ after the federal court dismisses the first action as long as the statute of limitations has not yet expired
Plaintiff could also appeal the court’s dismissal

Question 56

When must a party disclose the identity of an eyewitness?

Answer 56

If the party may call the witness to testify at trial or if the other party asks for disclosure

Question 57

Can a party amend a Rule 12(b) motion to include additional exceptions?

Answer 57

Yes, but only if the adverse party is not prejudiced by the amendment and no delay results in the prosecution and determination of the case

Question 58

Can an interrogatory be served on a non-party?

Answer 58

No

Question 59

What claims can a third party impleader bring?

Answer 59

All claims, whether permissive or compulsory claims, regardless if there is a connection with the current litigation