Civil Procedure Flashcards

Question

As a general rule, people do not have standing as taxpayers to challenge the manner in which the federal government spends tax dollars, because their interest is too remote. Under an exception to this general rule, federal taxpayers have standing to challenge federal appropriation and spending measures if they can establish that the challenged measure:

Answer 1

**(i) was enacted under the taxing and spending power of Congress; and** **(ii) exceeds some specific limitation on the power. The only such limit found by the Court to date on the taxing power is the Establishment Clause.**

Answer 2

In other words, it is irrelevant whether the court is a state court or a federal court when it comes to a personal jurisdiction question.

Answer 3

Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; **and** (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. If there is no district anywhere in the United States that satisfies (i) or (ii), the action may be brought in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. The District of State C (place of the injury) and the District of State B (**_place of purchase_**) are proper because substantial events giving rise to the claim occurred there. A corporation is deemed to reside in any district in which it is subject to personal jurisdiction with respect to the action in question. The facts state that the manufacturer is a State A corporation and has its principal place of business in the District of State A. As a result, it is subject to personal jurisdiction there based on a general jurisdiction theory. Thus, the District of State A is a place of proper venue because that is where the manufacturer (the only defendant) resides for purposes of venue

Answer 4

The court should rule for the purchaser’s administrator on the minimum contacts issue and exercise in personam jurisdiction over the insurance company. _Generally, fewer contacts will suffice for in personam jurisdiction if those contacts are directly related to the cause of action._ Here, even though the sale of the insurance policy constituted only a single contact, it is the contact at issue in the case. Thus, the exercise of jurisdiction would be constitutional.

Answer 5

The driver must disclose the identity of the witness in response to an appropriate interrogatory. Federal Rule 26(a) requires, as an initial disclosure, a party to reveal the name and contact information of individuals who are likely to have **discoverable information and who the disclosing party may use to *_support_* his claims or defenses (unless the use would be solely for impeachment).** After initial disclosures are made, discovery proceeds, and the parties may continue with discovery of **nonprivileged information that is relevant to any party’s claim or defense,** including the names and contact information of any person who knows of any discoverable matter. Here, the eyewitness would not need to be disclosed as an initial disclosure because the driver obviously will not use the eyewitness to support the driver’s claim or defense. However, the identity of the eyewitness would need to be disclosed eventually, assuming the pedestrian submits a proper discovery request.

Answer 6

...100 miles from the place of trial.

Answer 7

The court should not order the woman to produce the recording unless it finds that the man has substantial need for the recording and is unable to obtain the same information without undue hardship. In general, a party’s work product **made in anticipation of litigation** is not discoverable. However, the work product may be discovered if the opposing party can show **substantial need and that he cannot obtain the same information in an alternative way without undue hardship**.

Answer 8

Under Federal Rule 38, a party who desires a jury trial (on some or all fact issues) **must file a written demand with the court and serve it on the parties.** Failure to make such a demand within **14 days after the service of the last pleading directed to the jury-triable issue** constitutes a waiver by that party of any right to trial by jury. \*\*\* Although the woman could amend her complaint as of right within 21 days of service of the homeowner’s answer, she did not have the right to include in it a demand for jury trial

Answer 9

Under the Federal Rules, when the jury’s answers accompanying a general verdict are consistent with each other but are inconsistent with the general verdict, the court may (i) enter a judgment that is consistent with the answers, disregarding the general verdict; (ii) instruct the jury to deliberate further regarding its verdict and answers; or (iii) order a new trial.

Answer 10

...the verdict may be set aside, and either the jury will be asked to reconsider its verdict or a new trial will be ordered.

Answer 11

The court will grant a jury trial because the underlying dispute is legal in nature. The court will look to the basic substance of the case to see if a jury trial is appropriate. Although the manufacturer’s suit is equitable in nature, the consumer’s counterclaim for breach of warranty is an action at law, in which a jury trial is available on demand.

Answer 12

At this point in the litigation, when the opposing party has been fully heard, the appropriate motion is for judgment as a matter of law (formerly known in federal practice as a motion for directed verdict). The evidence will be viewed in the light most favorable to the party opposing the motion, and will be granted if there is _no legally sufficient evidentiary basis for a reasonable jury to find in favor of that party._ Motion for judgment on the pleading and motion for summary judgment pretrial motions: a motion for judgment on the pleadings considers no evidence outside the complaint, answer, etc., while a motion for summary judgment considers affidavits, discovery material, and other evidence submitted with the motion.

Answer 13

...all parties consent \*\*\* There is no timing specified in the federal rules for withdrawing a jury demand, but a jury demand can be withdrawn only with the consent of all the parties. The 14-day period represents the general time period for initially demanding a jury.

Answer 14

(D) The court lacks subject matter jurisdiction of the action because the lawyer’s state law claim is supported neither by diversity of citizenship jurisdiction nor by alienage jurisdiction. _Although the woman is a citizen of the United States, she is not a citizen of any state of the United States._**A person is a citizen of the state or country where she is domiciled.** The question tells us that the woman moved from State B to a foreign country and has been living there for many years. Thus, it is reasonable to conclude that she changed her domicile from State B to the foreign country. However, the woman is not an alien; rather she is a United States citizen without a state citizenship. (B) is incorrect because both the lawyer and the woman are citizens of the United States. A United States citizen may become a citizen of a foreign country by renouncing her United States citizenship and acquiring the citizenship or nationality of the foreign country by a formal process called naturalization. Here, the woman is not an alien. (C) is incorrect because a court in State A would have specific personal jurisdiction over the woman because she entered into a contract in State A with the lawyer (her agreement to retain and pay him) and the lawyer’s claim arises out of that contract.

Answer 15

The court does not have federal question jurisdiction because the recently enacted federal statute arises only in anticipation of the defendant’s defense. This is insufficient to confer federal question jurisdiction.

Answer 16

(B) The defendant is a citizen of State A, and the plaintiff is a citizen of State B. _Diversity is determined at the time the action is filed,_ not when the cause of action accrues or after the action commences. **_Also, the plaintiff’s motive for moving to State B is irrelevant, as long as the change of citizenship is genuine; i.e., she intends to remain there. The defendant’s motive is also irrelevant._** Even though he moved to State B for reasons unrelated to the case and his move appears to be enough to change his citizenship, citizenship is still determined at the time the action is filed, and thus he is still considered to be a citizen of State A for purposes of this lawsuit.

Answer 17

(D) The court will grant the husband’s motion. Even if diversity and the minimum amount in controversy are present, **the federal district courts will not exercise jurisdiction over domestic relations or probate proceedings.**

Answer 18

(C) The supplier can maintain the action. Diversity of citizenship jurisdiction requires complete diversity— meaning that no plaintiff may share state citizenship with any defendant—and the amount in controversy must exceed $75,000. Here, the issue is the citizenship(s) of the parties. For purposes of diversity of citizenship jurisdiction, a corporation is deemed to be a citizen of every state in which it is incorporated and the one state in which it has its principal place of business. The supplier is a citizen of State A only, given that State A is both its state of incorporation and its principal place of business. The aircraft manufacturer is a citizen of State B, its state of incorporation, and the state identified as its principal place of business. The United States Supreme Court has held that the principal place of business is the corporate headquarters where the corporation’s high level officers direct and control the corporation’s activities. Here, the aircraft manufacturer’s headquarters are in State C, making State C its principal place of business despite the fact that its manufacturing operations are in State A. (A) is not correct because, as explained above, a corporation’s principal place of business is the state from which the corporation’s high level officers direct and control the corporation’s activities, not the state in which it has all of its physical operations. (B) is not correct because the place where the events took place has no role in diversity of citizenship jurisdiction. (The events will determine where venue would be proper, but that is a separate question from subject matter jurisdiction.) ``` (D) is not correct because a corporation may have two (or more) state citizenships, as explained above. ```

Answer 19

(B) The court has supplemental jurisdiction. When jurisdiction is based on a “federal question” claim, and diversity jurisdiction is not available, a nonfederal claim can be joined only if the court has supplemental (pendent) jurisdiction over it. The court will have supplemental (pendent) jurisdiction over the claim if it arose from the same transaction or occurrence as the federal claim. Here, although diversity jurisdiction is not available in the claim between the employee and the co-worker because the amount in controversy does not meet the more than $75,000 jurisdictional limit, the court will have supplemental jurisdiction because the hostile work environment claim arose out of the same transaction or occurrence as the federal civil rights claim. (A) is wrong because it is an incomplete statement of the law. While supplemental jurisdiction may exist whenever the original claim is based on a federal question, to permit it, the state law claim also must be part of the same transaction or occurrence.

Answer 20

(i) the case presents a novel or complex issue of state law; (ii) in a federal question case, the nonfederal claim substantially predominates the case; (iii) the claims over which the federal court had original jurisdiction have been dismissed (taking into consideration the amount of time the court has spent on the case); or (iv) there are extraordinary circumstances for declining jurisdiction.

Answer 21

(B) The plaintiff may assert the negligence claim if permitted by the court. **The court on motion may permit a plaintiff to file a supplemental pleading that relates to matters occurring after the date of the original pleading.** [Fed. R. Civ. P. 15(d)] (A) is incorrect because a plaintiff may aggregate all his claims against a single defendant to meet the jurisdictional amount, regardless of whether the claims are legally or factually related. Since the contract action already exceeds $75,000, the amount in controversy in the negligence action is irrelevant. **(C) is incorrect because a plaintiff may bring all claims he has against a defendant in a single action regardless of whether they are related.** (D) is incorrect because there is no time limit on when a supplemental pleading can be filed.

Answer 22

... the defendant’s first ***_response_*** to the complaint—whether that response is a Rule 12(b) pre-answer motion or an answer—or else it is waived. ... the defendant’s first Rule 12 response to the complaint—whether that response is a pre-answer motion or an answer.

Answer 23

... 21 days after serving it. Thereafter, **the party may amend only with consent of all parties or with leave of the court**, *_but the “court should freely grant leave when justice so requires.”_*

Answer 24

(D) The plaintiff may amend his complaint. A party may amend a pleading to which a responsive pleading is required of right if the party does so within 21 days after the responsive pleading or other response is served. [Fed. R. Civ. P. 15(a)(1)(B)] (A) is incorrect because the amendments to a complaint do not have to arise from the same transaction or occurrence as the original pleadings. (B) is incorrect because a plaintiff may bring all claims he has against a defendant regardless of whether they are related. (C) is incorrect because a complaint may be _amended once as a matter of course within 21 days of serving it or 21 days after service of a responsive pleading or pre-answer motion._ Thereafter, a pleading may be amended only by the written consent of the defendant or by leave of the court.

Answer 25

(i) some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and (ii) there is a question of fact or law common to all parties.

Answer 26

(C) The court should grant the employer’s motion if it believes a jury would not have had a legally sufficient basis to find for the jury. If a defendant moves for judgment as a matter of law under Rule 50(a) at any point during the trial, it may renew that motion **_after the jury reaches a verdict,_** regardless of whether it had moved for judgment as a matter of law at the close of all the evidence. **_The motion to renew must be made within 28 days after the jury returns its verdict._** (D) is incorrect because it gives the wrong standard. A court may only grant a motion for judgment as a matter of law if there is no legally sufficient evidentiary basis for it. In deciding the motion, the trial judge is not free to weigh the evidence. Rather, she must view it in the light most favorable to the verdict winner.

Answer 27

(D) The court of appeals cannot hear the defendant’s appeal because there has not been a final judgment on the merits in this case. With the exception of some interlocutory orders, only final orders are reviewable on appeal. _A final order on the merits disposes of the whole case by rendering judgment as to all the parties and all causes of action._When multiple claims or parties are involved in an action, the court may enter a “final judgment” as to fewer than all of the claims or parties **only on an express determination that there is no just reason for delay.** If the court does not make such an express determination, a judgment as to fewer than all the claims or parties is not a final judgment and is not appealable. Here, the court has not made an express determination that there is no just reason for delay. Therefore, the summary judgment ruling is not appealable until there is also a final judgment in the contract action. (A) is incorrect because a summary judgment ruling can be a final judgment on the merits, but there has not been a final judgment here because of the outstanding contract dispute.

Answer 28

(C) The truck driver is unlikely to be successful because it is unclear whether the jury in the first case found that the motorcyclist was contributorily negligent. For issue preclusion to apply to an issue, the issue must actually have been litigated and determined in the previous case. Here, the issue of the motorcyclist’s negligence was not determined in the first case. The jury could have found that the motorcyclist was contributorily negligent, or it simply could have found that the motorcyclist did not prove that the car driver was negligent. Because this issue was not decided, the truck driver cannot assert issue preclusion (collateral estoppel) against the motorcyclist. (B) is therefore incorrect. (A) is incorrect because issue preclusion requires more than a final judgment on the merits in the first case. Issue preclusion applies to issues that were actually litigated and essential to the judgment in the first case and are relevant in the second case. (D) is incorrect because nonparties may be allowed to assert issue preclusion and use a prior judgment to avoid liability in a second suit.

Answer 29

(A) The court is likely to grant the manufacturer’s motion. **A court may relieve a party from a final judgment or order on the ground of newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial.** **A motion for a new trial must be filed no later than 28 days after judgment is entered.** Here, the defendant discovered the new evidence about the recalled engine part six months after the judgment was entered; therefore, it was too late for a motion for new trial. (B) is incorrect because the original judgment is not void. **A judgment is void only if there is a fundamental flaw, such as lack of jurisdiction or due process.** (C) is incorrect because motions for relief from a final judgment on the basis of newly discovered evidence must be brought **within one year.** (D) is incorrect because, although a party may file a motion to amend a final order on the basis of newly discovered evidence, it must be filed within 28 days of the order. Because six months have passed since the judgment was entered, this motion is not available to the manufacturer.

Answer 30

... object on the record before the instructions are given. If adequately preserved, the instructions are reviewed using an **_abuse of discretion_** standard. However, if the objection is not made (and therefore not preserved for full appellate review), the court’s review is limited to considering whether there was a **_plain error_** in the instruction that affected substantial rights. Relief based on plain error is difficult to obtain.

Answer 31

(D) The plaintiff’s claim is not likely to be successful because it is barred by claim preclusion principles. Claim preclusion requires that: (i) a valid, final judgment on the merits was entered in the first case; (ii) the cases were brought by the same claimant against the same defendant; and (iii) **the same cause of action is involved in the later lawsuit.** _Generally, a claimant is required to assert all causes of action arising out of the same transaction or occurrence that is the subject matter of the claim._ Here, the first case was resolved by a valid, final judgment on the merits. Both cases involve the same claimant, same defendant, _and claims arising from the same transaction or occurrence._ The plaintiff should have sought damages for his yard in the first lawsuit because the second lawsuit is barred by claim preclusion. (B) is incorrect because it is irrelevant when the plaintiff realized the extent of the damage to his yard. (C) is incorrect because issue preclusion involves binding a party in a different cause of action as to certain issues that were litigated in the first action. Since the same cause of action is involved here, claim preclusion is appropriate.

Answer 32

(D) The judge did not commit reversible error. In a case tried before a judge, once a party has been fully heard on an issue of fact, the judge may enter judgment on partial findings where that issue would dispose of the case. Here, the patient’s inability to prove that the doctor breached the applicable standard of care would be fatal to her case, and thus the judge did not err when he entered judgment once that became clear. (Note that a judge may continue hearing evidence; whether to do so is a discretionary call.) Thus, (D) is correct and (A) is incorrect. (B) is incorrect because _the judge may issue findings of fact and conclusions of law orally on the record._ (C ) is an incorrect statement of the law. An appellate court may overturn the judge’s findings of fact on appeal, although the judge will be given considerable discretion. _(A clearly erroneous standard is applied.)_ Purely legal aspects of the case are reviewed de novo.

Answer 33

(C) The defenses of subject matter jurisdiction and failure to state a claim were timely asserted. The lack of subject matter jurisdiction may be raised at any time. **The defense of failure to state a claim upon which relief can be granted can be asserted in** **a pre-answer motion,** **any pleading,** **a motion for judgment on the pleadings, or** **at trial.** Because the defendant asserted this defense in a motion for judgment on the pleadings, it was timely asserted. Hence, (A) and (B) are incorrect. **A defendant must object to lack of personal jurisdiction in a pre-answer motion or the answer.** If the defendant does not, the objection is waived. Because the defendant here did not assert the defense of lack of personal jurisdiction in his answer or any pre-answer motion, he waived the defense. Therefore, the personal jurisdiction defense was not timely asserted. Hence, (B) and (D) are incorrect.

Answer 34

(D) The court does not have subject matter jurisdiction. Provided the amount in controversy exceeds $75,000, the diversity statute authorizes jurisdiction over a civil action between citizens of a U.S. state and citizens of a foreign state, **_except that jurisdiction is withdrawn if the action is between citizens of a U.S. state and citizens of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same U.S. state._** Here, the investor is a citizen of State A. The chef has been admitted to the United States for permanent residence, and he is domiciled in State A. Because the investor and chef share domicile in State A, jurisdiction is withdrawn.

Answer 35

(A) The court has supplemental jurisdiction over the third-party claim. Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff must be a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. In the instant case, the case is properly in federal court because diversity jurisdiction exists for the underlying claim (i.e., the claim by the pedestrian against the first driver), given that the pedestrian is from State A, the first driver is from State B, and the amount in controversy is $100,000. The third-party indemnity claim, however, cannot invoke diversity jurisdiction, even though the first driver is from State B and the second driver is from State A, because the amount claimed is $50,000. **When the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding.** (Essentially, this means that the supplemental claim must arise from the same common nucleus of operative fact as the claim invoking federal subject matter jurisdiction.) In the instant case, the claims of pedestrian (the underlying claim) vs. first driver and of first driver vs. second driver (the indemnity claim) are derived from the same accident, and thus both are derived from the same common nucleus of operative fact. **There are restrictions on the use of supplemental jurisdiction when the use of supplemental jurisdiction would be contrary to diversity jurisdiction.** In terms of third-party practice, claims **_by a plaintiff against an impleaded party_** *may not use supplemental jurisdiction to circumvent the diversity statute.* However, claims **_by a defendant are not listed among the restrictions_**; *thus, supplemental jurisdiction is available to a defendant (third-party plaintiff) against a third-party defendant.* Therefore, the first driver may use supplemental jurisdiction to have his claim against the second driver heard in federal court. (This would be true even if they were from the same state, so long as the claim was a true indemnity claim.) As a result, (A) is correct, and (C) incorrect.

Answer 36

(D) Service on the treasurer was effective service. **Under the Federal Rules, a corporation may be served by serving any corporate officer or managing or general agent. _Alternatively,_ service may be made under state rules or by mail under the waiver of service provision.** Here, service is proper because the treasurer, an officer of the corporation, was served. Service need not comply with state law as well. Service in accordance with state law is an authorized alternative to the service methods specified in the Rules. Venue is proper because the corporation resides there. Venue is proper in (i) a judicial district in which any defendant resides, _if all defendants are residents of the state in which the district is located;_ (ii) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred or in which a substantial part of property at issue is located; or (iii) if there is no district anywhere in the United States which satisfies (i) or (ii), _a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action._ _A corporate defendant resides in any federal judicial district in which it is subject to the court’s personal jurisdiction with respect to the civil action in question_. Here, for venue purposes, the company resides in the federal district of State A because it would be subject to that district court’s personal jurisdiction in this action. Specifically, it would be subject to the court’s general personal jurisdiction because it was incorporated in State A, meaning it could be sued in State A on any claim, including the civil action in question, which arose from acts in State B.

Answer 37

(A) Venue is proper in the Middle District of State A only. Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. Here, the defendants do not reside in the same state. Therefore, venue cannot be based on the residence of the defendants. However, the accident occurred in the Middle District of State A, which is a proper venue under prong (ii).

Answer 38

(D) The court could grant the motion. **_Pursuant to Rule 12(b), improper venue must be raised in a defendant’s first response—either in its timely motion to dismiss before the answer or in the answer, whichever is first._** Here, though, venue was initially proper because the defendants resided in State B. Rather, the issue is whether the court may transfer the case from one proper venue to another. **_Such a transfer has no strict time limit._ Rather, transfer is left to the discretion of the trial judge, and the judge may refuse transfer where the case has been pending for some time and would work a prejudice to one of the parties.** *Two months is likely not a sufficient period to prevent transfer of the case.* Thus, (D) is correct. (A) is incorrect because, as explained, transfer of venue **_in the interests of justice_** does not fall under the “first pleading or motion” rule.

Answer 39

(C) The commencement of the action in State A is most relevant. **When a case is removed from state court to federal court, venue is set in the federal district court that embraces the state court in which the action was pending**, making the federal district court of State A the only appropriate venue choice. Thus, (C) is the correct answer because the most (indeed, only) relevant fact is the fact that the action was commenced in a court of State A. Unlike cases commenced in federal court, in cases removed to federal court, the residence of the defendant contractor (answer choice (B)) and the place where a substantial part of events relating to the claim occurred (answer choices (A) and (D)) are irrelevant.

Answer 40

(C) The notice of removal should be filed in the district in State C in which the State C court is located. The federal removal statute provides that _the notice of removal should be filed in the federal district court for the district that geographically encompasses the state court from which the action is being removed._Thereafter, copies must be sent to the parties and filed with the applicable state court. Thus, (A), (B), and (D) are incorrect. (A) describes the general venue rule—i.e., an action may be filed in the judicial district in which any defendant resides (if they are all from the same state) or in which a substantial part of the events took place—for actions filed originally in federal court.

Answer 41

(A) Generally, a party may assert issue preclusion offensively if **(i) the prior action ended in a final judgment;** **(ii) the issue has been actually litigated and determined;** **(iii) the issue was essential to the judgment;** **(iv) the party to be bound by the prior judgment was a party to the prior action or in privity with a party to the prior action; and** **(v) the party asserting issue preclusion was a party to (or in privity with a party) to the prior action or, if not, is asserting issue preclusion under circumstances that are not unfair or inequitable.** Here, the fourth element is missing. The bakery was not a party to the prior action and therefore the cyclist’s estate may not assert issue preclusion against it. (B) is incorrect because the cyclist and the cyclist’s estate are in privity. Therefore, issue preclusion may be asserted by it. (C) is incorrect because a case is fully litigated when it is resolved by the grant of a motion for summary judgment.

Answer 42

(D) _**When a court grants summary judgment on some but not all of the claims in an action, the court’s order is not final and thus not appealable *unless the court expressly determines that there is no just reason to delay entry of judgment.***_Unless the trial judge makes that express determination, its order determining the merits of fewer than all of the claims is not a final judgment and is not appealable. For these reasons,

Answer 43

(A) **_When an appellate court reviews a trial court’s ruling on a post-trial motion for judgment as a matter of law (including a renewed one), it employs a de novo standard._** It does so because the issue is one of law. **_In contrast, when an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a clear showing of an abuse of discretion._** Note that when a renewed motion for judgment as a matter of law and a motion for a new trial are made in the alternative and the renewed motion is granted, _**the court rules hypothetically on the new trial motion** so that no remand is required if the ruling on the judgment as a matter of law is subsequently reversed on appeal._

Answer 44

To reserve its right to appeal an error in an instruction given or, a failure to give an instruction, a party must object on the record **_before_** the instructions are given. If adequately preserved, the instructions are reviewed using an **_abuse of discretion_** standard. However, if the objection is not made (and therefore not preserved for full appellate review), then the court’s review is limited to considering whether there was a **_plain error_** in the instruction that affected substantial rights.

Answer 45

(C) The limo driver’s best approach is to have the entry of default set aside for good cause. Although there are no facts to indicate that good cause exists to have the default set aside, **_having the default vacated before the hearing on the default judgment represents the only method by which the limo driver can get a hearing on the merits of the case._** If the limo driver can have the entry of default vacated prior to the hearing for a default judgment, the hearing would not proceed, and the case would proceed as any other case in which no default was entered. (D) is incorrect. The entry of the default cuts off the defendant’s right to contest the case on the merits. _**Although the defendant may appear at the hearing for the default judgment *to contest damages*, he may not contest liability until the entry of default is vacated.**_

Answer 46

(C) The court should grant the employee’s motion. A court may relieve a party from a final judgment or order based on fraud, misrepresentation, or other misconduct of an adverse party, *_**and such a motion must be made within a reasonable time not to exceed one year.**_* Here, the employee filed her motion based on the adverse party altering a document, which amounts to fraudulent misconduct by the adverse party, and she properly filed her motion within a year. Therefore, the court should grant her motion. (D) is wrong because there is a one-year time limit to file a motion for relief from judgment based on fraud, misrepresentation, or other misconduct of an adverse party. **There is no time limit for such a motion if it is based on a clerical mistake, but that is not the ground that applies to this question.**

Answer 47

A plaintiff may voluntarily dismiss an action without prejudice only once, so a second voluntary dismissal operates as an adjudication on the merits. A dismissal by notice is without prejudice unless the plaintiff has previously dismissed any federal or state court action on the same claim, **in which case the dismissal by notice operates as an adjudication on the merits.**

Answer 48

... 28 days after judgment was entered.

Answer 49

Although not specifically required by the Federal Rules, a majority of courts also will require some showing of a meritorious defense.

Answer 50

... the rulings that trial judges make during the course of pretrial proceedings and trials that do not completely resolve the case. Therefore, they are not final. As a result, interlocutory orders are typically not immediately reviewable on appeal until a final order is made, **unless they meet one of the exceptions permitting an appeal as of right,** i.e.: * orders granting injunctions; * orders appointing a receiver; * orders in admiralty cases finding liability but leaving damages to be assessed later; * patent infringement orders where only an accounting is ordered; and * orders affecting or changing possession of property. * The Interlocutory Appeals Act also may permit a review of an interlocutory order, but it is discretionary, and may be available only when (i) _the trial judge_ certifies that the interlocutory order involves a controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; and (ii) _the court of appeals_ then agrees to allow the appeal. * A party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal.

Answer 51

(C) The proper response by the trial judge is to grant the motion for a renewed JMOL , but rule hypothetically on the new trial motion in the event the JMOL is reversed on appeal. A renewed motion for a JMOL is permitted provided the moving party moved for a JMOL at some time during the trial. The moving party is permitted to raise only those issues raised in the initial motion for JMOL. It is apparent from the facts that the jury did not apply traditional common law rules in arriving at its verdict, _which the federal court in State A would be required to follow._ **Because of this error, the trial judge should grant the motion for a renewed JMOL.** _Furthermore, when a renewed motion for a JMOL and a motion for a new trial are made in the alternative, and the renewed motion is granted, **the court must rule hypothetically on the new trial motion so that no remand is required if the ruling on the JMOL is subsequently reversed on appeal.**_

Answer 52

(D) The court should not issue the ex parte order. A temporary restraining order may be granted by a court when it is necessary to prevent irreparable injury to a party, and the injury will result before a preliminary injunction hearing can be held. As a general rule, notice of the hearing for the issuance of the order must be given before it is issued. However, a court may grant an ex parte temporary restraining order without notice of the hearing to the adverse party if the moving party does the following: (i) gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition; (ii) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and (iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained. Here, the company alleged irreparable injury and offered to provide security, _but nothing in the facts indicates that it certified efforts to give notice to the competitor or why notice should not be required._The facts do not establish that it is impossible to provide notice to the competitor before a restraining order is issued. (A) is incorrect because the company’s affidavit is not enough to justify the issuance of an ex parte order, as discussed above.

Answer 53

the amount of damages ... first-class mail at least seven days before the hearing on the application for a default judgment. Appearance includes any actual formal appearance before the court and any other action that clearly indicates that the defendant intends to contest the case on the merits (e.g., the defendant’s continued settlement negotiations). **Furthermore, an appearance cuts off the clerk’s ability to enter a default judgment.**

Answer 54

(B) **_If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court._** The jury’s finding on fact issues will bind the court in the equitable claim. (A) is incorrect because all fact issues relating to the company’s legal claim must first be determined by the jury. Only then may the judge try the woman’s equitable claim. (C) and (D) are both incorrect because neither the jury nor judge acts as the sole finder of fact when the case has legal claims and equitable claims, and a jury has been demanded on the legal claims.

Answer 55

(B) The company is entitled to a jury trial only for issues involving the trespass action. **In this case, both legal and equitable issues exist**. _The defendant is entitled to a jury trial on the legal issues in the case, even though the equitable issue of whether an injunction mandating removal of the building should be issued clearly predominates._ Hence, (D) is incorrect. (A) and (C) are incorrect because, as stated, the issue regarding removal of the building is equitable, and thus there is no right to answer it to a jury.

Answer 56

(A) If legal and equitable claims are joined in one action involving common fact issues, the legal claim should be tried first to the jury and then the equitable claim to the court (the jury’s finding on fact issues will bind the court in the equitable claim). (D) is wrong because the Supreme Court has held that if legal and equitable claims are joined in one action involving common fact issues, the legal claim should be tried first.

Answer 57

(D) The former manager may not demand a jury trial for both claims. The Seventh Amendment preserves the right to a jury trial for both the plaintiff and defendant for civil actions in federal court of facts in all “suits of common law” where the amount in controversy exceeds $20. The determination is historical and turns initially on whether the claim or relief was available at law or in equity in 1791. However, the Supreme Court has demonstrated a clear preference for jury trials in doubtful cases and has held that, _if damages are claimed as part of an action seeking an injunction, the defendant cannot be denied a jury on the damages issues on the ground that they are “incidental” to the equitable relief._ **As such, when a case presents both legal and equitable claims, the right to a jury is preserved for all legal claims, but not for equitable claims.** *Instead, the legal claim should be tried first to the jury, and the equitable claim will go to the court (the jury’s finding on fact issues will bind the court in the equitable claims).* Here, the call of the question asks if the former manager can demand a jury trial for both claims. _Under the Seventh Amendment, he only has a right to a jury trial on the legal claim for money damages, not the equitable claim for the injunction._ Instead, the court will hear the equitable claim for the injunction, but will be bound by any of the jury’s factual decisions that relate to the equitable claim. (A) is wrong because, although it is a correct statement of law, it is incomplete and does not directly answer the question asked. Both plaintiffs and defendants do have a right to demand a jury trial for civil actions in federal court, but in cases asserting both legal and equitable claims, the right to trial extends only to all issues that are relevant to the legal claims. Here, since the injunction is an equitable claim, the former manager does not have a right to a jury to review that claim.

Answer 58

(D) The proper course of action for the tavern owner would be to file a renewed motion for a JMOL and a motion for a new trial. _The trial judge will then rule on both motions, allowing the appellate court to review both motions on appeal._ And note that a renewed motion for JMOL would be permitted since the tavern owner initially sought a JMOL at trial. (C) is incorrect because a party should move for both a new trial and a motion for judgment as a matter of law in order to preserve both for appeal.

Answer 59

.... on the date that the original pleading was filed.

Answer 60

... a derivative claim; the third-party plaintiff must be seeking indemnification or contribution from the third-party defendant. i.e. Where the gas worker’s claim is not that the electrician must indemnify him or that the electrician is a joint tortfeasor who may be jointly liable under principles of contribution; rather, the gas worker is alleging that he is not liable and that the electrician is; the claim is not derivative, and it is not properly asserted as a third-party claim under Rule 14.

Answer 61

(A) The dealer should file a motion with the clerk of court. **On request of the plaintiff, supported by an affidavit as to the amount due, the clerk may sign and enter judgment for that amount and costs against the defendant if:** **_(i) the plaintiff’s claim against the defaulted defendant is for a sum certain;_** **(ii) the default was entered because the defendant failed to appear;** **(iii) the defaulted defendant is not an infant or incompetent person; and** _**(iv) the damages amount requested is not greater than the amount requested in the complaint.**_ The dealer’s claim here meets these requirements, so the clerk may enter the default judgment, and no notice is required. (C) is incorrect because the clerk may enter the default judgment when the amount is for a sum certain.

Answer 62

(B) The subcontractor cannot assert a breach of contract claim in the pending action. **_A third-party defendant may assert a claim against the original plaintiff only if the claim arises from the same transaction or occurrence that is the subject of the plaintiff’s original claims._** Here, the contractor’s claim arises out of the work he did on the homeowner’s apartment building, but the homeowner’s claim arises out of the work the subcontractor did on the addition to the homeowner’s house. Therefore, the subcontractor cannot assert his claim in the pending action, and (D) is incorrect.

Answer 63

(C) The collector may assert the fraud claim either as a counterclaim or in a separate lawsuit. The collector’s fraud claim is a _permissive counterclaim_ since it does not arise from the same transaction or occurrence as the dealer’s claims. _Therefore, the collector may assert it as a counterclaim or bring a separate lawsuit._ (A) is incorrect because a defendant may assert a permissive counterclaim, assuming there is subject matter jurisdiction, even though there is no connection between it and the plaintiff’s claim.

Answer 64

(C) The motorcyclist can assert and maintain a negligence claim against the car driver in the pending action. **Under Rule 14(a)(3), a plaintiff may assert a claim against _a third-party defendant brought in by a defendant’s third-party claim_only if the plaintiff’s claim against the third-party defendant _arises from the same transaction or occurrence as the plaintiff’s original claim._** Because the motorcyclist’s claims against the truck driver and car driver both arise from the accident, he can assert a claim against the car driver. (A) and (D) are therefore incorrect. (B) is incorrect because the court has diversity of citizenship jurisdiction over the claim. The facts state that the three operators are all from different states, and, _when looking at a joint claim asserted against multiple defendants, the court looks to the total value of the claim in determining the amount in controversy._ Here, the claim is for $500,000, well above the amount in controversy requirement for diversity jurisdiction.

Answer 65

... the new claim arises from the same transaction or occurrence as the original claim.

Answer 66

(D) _Work product protects documents and materials prepared in anticipation of litigation, not the underlying facts in the document itself._ Thus, regardless of whether the investigator’s report is work product, the bus company must nonetheless disclose all relevant facts regarding the accident, including the fact that the driver was speeding.

Answer 67

... reasonable expenses for attending, including attorney’s fees.

Answer 68

... another party.

Answer 69

.... a copy of any statement or recording previously made by that party.

Answer 70

(A) The buyer must provide a copy of the emails as part of its initial disclosures. _Without waiting for a discovery request, a party must provide to the other parties copies or descriptions of electronically stored information that is in the disclosing party’s possession or control_ **and that the disclosing party may use to support its claims or defenses.** (B) is therefore incorrect. \* The work product doctrine protects materials made in anticipation of litigation, not materials retrieved in anticipation of litigation.

Answer 71

(D) The court will not require the supplier to answer. **In general, discovery may be had of any _nonprivileged_ matter that is _relevant_ to any party’s claim or defense and _proportional_ to the needs of the case.** Here, the supplier’s net worth is not relevant to any party’s claim or defense _because the contractor does not seek punitive damages._ Thus, (A) is incorrect.

Answer 72

(D) Under Rule 36 of the Federal Rules of Civil Procedure, an admission may not be used against the admitting party in any other proceeding. (A) is incorrect. Although admissions are not considered to be hearsay, the hearsay rule would not govern the admissibility in this instance. (In other words, the admissions contained in a response to a request of admissions would not be admissible in another proceeding regardless of whether or not they are considered to be hearsay.) (B) is a factor to be considered for the application of collateral estoppel and is not relevant to the current question. Likewise, (C) is incorrect. Although it is true that an issue must be “actually litigated” for issue preclusion (collateral estoppel) to be available, it is arguable that submitting the admission constitutes litigation. However, Rule 36 specifically bars use of an admission in another proceeding, making (D) a better answer.

Answer 73

(C) The defendant may not require the witness to undergo an eye exam because the witness is not a party to the action. **_A party may request a physical or mental exam of another party when that party’s physical or mental condition is in controversy._** T*he exam must be ordered by the court on a showing of good cause.* (As a side note, remember that a nonparty may be deposed. During the deposition, the witness may be asked about her medical condition. Furthermore, it also might be possible to obtain copies of the witness’s medical records by means of a subpoena or subpoena duces tecum.) (D) is incorrect because the court may order a party to undergo a physical exam **_against his wishes_** if there has been a showing of good cause.

Answer 74

... upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested.

Answer 75

(C) is correct. ***_If the mechanic (the nonmovant) shows by affidavit or declaration that he cannot present facts essential to justify his opposition to the summary judgment motion, Rule 56(d) authorizes him to ask the court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery._*** The employer moved for summary judgment right after answering and before any discovery. That timing would support defeating the summary judgment motion at this time. (A) is incorrect. Under Rule 56(c), a party asserting that a fact is genuinely disputed must support the assertion by citing particular parts of the record, including affidavits or declarations, stipulations, or discovery materials. _The mechanic cannot simply rely on the complaint allegations to rebut the employer's evidence_ *but must support his factual position with his own evidence that a factual dispute exists.* **If he cannot do so, Rule 56(d) authorizes him to ask the court to defer action or deny the summary judgment motion to allow time to obtain affidavits or declarations or to take discovery.** (B) is incorrect. The function of a summary judgment motion is _to allow additional evidence outside the pleadings_ to show that there is no genuine dispute of fact and that the movant is entitled to judgment as a matter of law. Rule 56(c)(1) enumerates the types of materials that the moving party may use to support a summary judgment motion, including documents. If the mechanic (the nonmovant) shows by affidavit or declaration that he cannot present facts essential to justify his opposition to the summary judgment motion, Rule 56(d) authorizes him to ask the court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery. (D) is incorrect. The fact that a summary judgment motion is filed before the close of discovery does not require the court to deny it. **Under Rule 56(b), a party may file the motion at any time until 30 days _after the close of all discovery._** The problem here is that the employer filed the motion _before discovery commenced,_ thus providing the mechanic an argument to defer action or deny the motion under Rule 56(d).

Answer 76

(B) is correct. There is supplemental jurisdiction because the claim for nonpayment for the goods in issue **_arises out of a common nucleus of operative fact_** as the plaintiff's (the shop owner's) claims, and the restrictions contained in the supplemental jurisdiction statute do not apply to these facts. _This question tests on the restrictions placed on the use of supplemental jurisdiction when the case is in federal court under diversity jurisdiction and the use of supplemental jurisdiction is inconsistent with the requirements for diversity._ ***_The rule to remember here is this:_*** ***_The restrictions on the use of supplemental jurisdiction apply to plaintiffs only._*** Here, the defendant (the distributor) is the party using supplemental jurisdiction, so the restrictions do not apply. As a result, it does not matter that the defendant and third-party defendant are not diverse, and it does not matter that the amount in controversy requirement is not satisfied. (A) is an incorrect statement of the law. A corporation is a citizen of each state in which it is incorporated (only one in real life) and the one state in which it has its principal place of business. Since the wholesaler and the distributor are both incorporated in State B, complete diversity of citizenship does not exist. (C) is incorrect. Although it is a true statement of law, the answer ignores the potential for supplemental jurisdiction. (D) is incorrect. The shop owner is not asserting any claims against the wholesaler, so the lack of diversity between them is irrelevant.

Answer 77

(A) is correct. Generally speaking, when dealing with the preclusive effect of a judgment, the recognizing court should not give a judgment any greater effect than the rendering state would. **_(When "case one" has been decided in state court, the court in case two generally will apply the claim or issue preclusion of the jurisdiction that decided case one.)_** Here, the rendering state, State A, does not recognize nonmutual collateral estoppel, so a federal court sitting in State B should not give the judgment issue preclusive effect. (B) is incorrect. As stated above, the law of the rendering state generally determines the preclusive effect of the judgment. (C) is incorrect for a similar reason. The fact that federal law may permit nonmutual issue preclusion is irrelevant. The law of the rendering state generally controls the preclusive effect of the judgment. (D) is incorrect. The listed factors are used to determine whether a court may apply issue preclusion, but they do not address whether nonmutual issue preclusion is applicable. \*\*\* Issue precclusion is “non-mutual” when it is not between former parties or their privies. Although non-mutual collateral estoppel (“NMCE”) is sometimes permitted, Due Process prevents its use against a person who themselves (or their privy) never litigated the issue in the prior suit.

Answer 78

(B) is correct. A jury must be composed of at least six jurors at the beginning of the trial. If the number drops below six (for example, as here, when jurors became ill), **_a mistrial results, unless the parties agree to a lesser number of jurors._** Because the parties stipulated to fewer jurors, the issue is waived. (A) is incorrect because even though the jurors were properly excused, a lesser number of jurors cannot return a verdict unless the parties agree. (C) is incorrect because the parties may stipulate to fewer jurors. (D) is incorrect. A jury must be composed of at least six jurors, not 12, and the answer does not address the possibility of a stipulation.

Answer 79

(D) is correct, and (A), (B), and (C) are incorrect for essentially similar reasoning. The best approach to answer this question is to use a process of elimination. In order to hear a case, a federal court must have subject matter jurisdiction and personal jurisdiction over the defendant, and venue must be proper. However, even if venue is proper, the court may transfer the case to another federal court, in the interests of justice, for the convenience of the parties and witnesses. Venue is proper in the judicial district in which a defendant resides, if all defendants reside in the same state, and in any judicial district where a substantial part of the acts or omissions took place or where a substantial part of the property that is the subject of the litigation is located. Here, the airplane crashed in State A, so a substantial part of the acts or omissions took place there. Thus, venue is proper, and (A) is incorrect. (B) is likewise incorrect because the airplane crashed in State A. _Since the airplane crashed in State A, the airline likely committed a tort in State A, thus giving a State A court personal jurisdiction over the defendant airline under the state's long arm statute._ Thus, a motion to dismiss on the basis of a lack of personal jurisdiction is unlikely to be successful. Finally, (C) is incorrect because the fact that the plane crashed in State A would likely defeat a motion to dismiss based on forum non conveniens. Federal courts typically will transfer (rather than dismiss) a case for convenience reasons under 28 U.S.C. section 1404 when the more convenient forum lies in another federal judicial district. A dismissal based on forum non conveniens usually is used when the federal court cannot transfer the action, such as when the more convenient forum is in a foreign country. Here, since all proper venues are within the United States, there is no reason the court could not transfer the case. By process of elimination, (D) is correct. The court could transfer to a federal court in State C based on convenience factors. It might be a tough sell for the airline to have the plaintiff's choice of forum overridden based on its domicile only, but it is the only possible way to have the case heard in a federal court other than in State A.

Answer 80

... the error affects a substantial right.

Answer 81

(A) is correct. With certain exceptions by rule or statute, only final judgments may be appealed. **A final judgment is one that disposes of the whole case on its merits.** _Since the case was still ***pending*** after the denial of a motion to dismiss on the basis of a lack of personal jurisdiction, the judgment here was not a final judgment and thus was not appealable._ (B) is incorrect because an order determining personal jurisdiction may be appealed (and is not within the sole discretion of the district court), but the order must be "final" (that is, it must dispose of all claims by all parties). (C) is an incorrect statement of law and the final order rule. The order must be "final" at the trial court level, not be potentially made final by an appellate court ruling. (D) again is an incorrect statement of law. The final order rule may not be circumvented by the mere raising of a constitutional issue.

Answer 82

(A) is correct. **If legal and equitable claims are joined in one action involving common fact issues, the legal claim should be tried first to the jury and then the equitable claim to the court, but the jury's finding on fact issues will bind the court in the equitable claim.** (B) is incorrect because only one trial is held. As stated, the jury's findings on fact issues will bind the court in the equitable claim. (C) is incorrect because a party cannot be denied a jury trial on "legal" issues even though there may be mixed "legal" and "equitable" claims in the case. (D) is incorrect because a party is not entitled to a jury on equitable claims.

Answer 83

(i) gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition (ii) certify in writing all efforts she made to give notice of the hearing to the adverse party and the reasons why notice should not be required; and (iii) provide some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrongfully enjoined or restrained. ***_The United States, its officers, and its agencies are not required to give security._***

Answer 84

... federal courts for the determination of facts in all suits at common law where the amount in controversy exceeds $20. The Supreme Court has held that when legal and equitable claims are joined in one action, the legal claim should be tried first to the jury and then the equitable claim should be decided by the court. The jury’s fact determinations bind the judge

Answer 85

... a reasonable time, but there is no outermost deadline. .... a reasonable time not to exceed one year.

Answer 86

The Supreme Court may hear some appeals from state courts and some appeals directly from federal district courts. The Supreme Court hears, on **direct appeal,** any order granting or denying an injunction in any proceeding required to be heard by a three-judge district panel. It also may hear by **discretionary writ of certiorari** final judgments of the highest court of a state if: (i) the validity of a treaty or federal statute is drawn into question; (ii) the validity of a state statute is drawn into question on the ground that it is repugnant to the federal Constitution or to a treaty or federal statute; or (iii) any title, right, privilege, or immunity is claimed under the federal Constitution or treaty or federal statute.

Answer 87

... a state court generally must recognize the judgments of a sister state and federal courts generally must recognize judgments of state courts. Recognition of judgments is required between state courts, between state and federal courts, and between federal courts.

Answer 88

Once one claim satisfies the requirements for original federal subject matter jurisdiction, the court has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding

Answer 89

... a judgment binds the plaintiff or defendant (or their privies) in subsequent actions on different causes of action between them (or their privies) as to issues actually litigated and essential to the judgment in the first action. Issue preclusion focuses on something relatively narrow--an issue that was litigated and determined in the first case, and that is relevant in a second case. With issue preclusion, the issue is deemed established in the second case without need to proffer evidence on it.

Answer 90

However, this requirement is not imposed by due process and has been subject to modification in certain circumstances to allow nonparties to take advantage of a prior judgment. In fact, although courts have been very reluctant to permit a nonparty to use issue preclusion to aid him offensively (as a plaintiff) to obtain relief, the Supreme Court has upheld its use offensively by a nonparty where it was fair and equitable to do so. [Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)]

Answer 91

**(i) mistake, inadvertence, surprise, or excusable neglect;** **(ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial;** **(iii) fraud, misrepresentation, or other misconduct of an adverse party;** (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. **For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year from the judgment;** for the other grounds, the motion must be made within a reasonable time. (But remember that a lack of subject matter jurisdiction may be raised at any time.) Such a motion is left to the trial judge’s discretion, and, on appeal, her decision will be reviewed on an “abuse of discretion” standard.

Answer 92

**Absent a court order, no execution on a judgment is allowed for 30 days after entry e_xcept for injunctions and receiverships, which are not held up_ *unless otherwise ordered by a court.***

Answer 93

....the federal claim is dismissed on the merits. However, the state claim should probably also be dismissed (without prejudice) if the federal claim is dismissed before trial. i.e. Here, although the federal copyright claim was invalid, it was deemed to be so during trial, before a verdict was rendered. Since the case is currently being tried, the court will likely hear the state claim for the sake of judicial economy.

Answer 94

bankruptcy cases, patent and copyright cases, antitrust cases, and a few other less common types of actions.

Answer 95

The court does not have federal question jurisdiction when the recently enacted federal statute arises only in anticipation of the defendant’s defense. (Rationale: If, for example, the defendant relied on some other defense or defaulted instead of defending on the basis of the new federal statute, no federal question would ever be involved in the case. [See Louisville & Nashville Railroad v. Mottley, 211 U.S. 149 (1908)])

Answer 96

...is discoverable only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means. Absent such circumstances, these opinions are not discoverable, regardless of whether the nontestifying expert was informally consulted or whether she was retained or specially employed.

Answer 97

...any matter that is proportional to the needs of the case and that is relevant to any party’s claim or defense, provided the matter is not subject to a privilege or to the exception for trial preparation materials, also called work product. Trial preparation materials are documents or other tangible things prepared in anticipation of litigation or for trial. i.e. Here, the manager’s report is relevant because it contains facts relating to the incident that is the basis of plaintiff’s claim. Moreover, it is not subject to the exception for trial preparation materials because it was prepared in the ordinary course of business to comply with state law, not in anticipation for litigation. Finally, the costs of producing the report likely would not be prohibitive.

Answer 98

a state law standard

Answer 99

... file a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue. Otherwise, the right to a jury trial generally is deemed waived. Note, however, that the Supreme Court has held that, in the absence of compelling reasons to the contrary, a court should grant relief from the waiver if the issue is normally tried by a jury.

Answer 100

The defendant may file a motion and raise any or all of the following defenses: (i) lack of subject matter jurisdiction; **(ii) lack of personal jurisdiction;** **(iii) improper venue;** **(iv) insufficiency of process;** **(v) insufficiency of service of process;** _(vi) failure to state a claim upon which relief can be granted; or_ _(vii) failure to join an indispensable party._ **The defendant must raise defenses (ii) through (v) the first time he files a motion or answer (or amendment as of right thereto)—whichever is first. If he does not, the defendant waives these defenses.** _Defenses (vi) and (vii) can be made at any time prior to trial or at trial._ Defense (i) can be raised at any time until all appeals have been exhausted. A motion to dismiss for failure to state a cause of action that raises issues outside of the pleadings will be treated as a motion for summary judgment.

Answer 101

de novo It does so because the issue is one of law. In contrast, when an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a clear showing of an abuse of discretion. Note that when a renewed motion for judgment as a matter of law and a motion for a new trial are made in the alternative and the renewed motion is granted, the court rules hypothetically on the new trial motion so that no remand is required if the ruling on the judgment as a matter of law is subsequently reversed on appeal.

Answer 102

the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state. This is because venue for an action removed under section 1441(a) lies in the federal district court “embracing the place where such [state] action is pending.”

Answer 103

(1) a case based on diversity must be removed within 30 days of the defendant's receipt of a copy of the paper (order, motion, etc.) that makes the case removable; but (2) in no event may the case be removed more than one year after it was commenced in state court. [28 U.S.C. §1446]

Answer 104

The driver can join his contract claim with his negligence cross-claim, but he is not required to do so. As a general rule, a party may assert a cross-claim against a co-party only if the cross-claim arises from the same transaction or occurrence as that of the original action or of a counterclaim. _However, once the party has filed such a cross-claim, he also may join with it any other claim that he has against the same party._ Here, the driver's contract claim is unrelated to the pedestrian’s negligence claim; however, the driver’s negligence claim is related to the pedestrian’s negligence claim. Thus, the contract claim also can be asserted in this case.

Answer 105

Venue is proper in the District of State A, the District of State D, and the District of State B. Federal venue in civil actions is proper in (i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. The District of State D is proper because a substantial part of the events giving rise to the claim—use of the widget and the injury—took place there. **_Substantial events also occurred in the District of State B (the sale)._** Additionally, venue is proper in other districts because the manufacturer is deemed to reside there. Corporations are deemed to reside in any district in which it is **_subject to personal jurisdiction with respect to the action in question._** The manufacturer is subject to personal jurisdiction and thus deemed to reside in the **District of State A** (because its incorporation and principal place of business are there, thus subjecting it to general jurisdiction there), **the District of State B** (because it sold the widget from its store there, thus subjecting it to specific jurisdiction there with respect to the current action), **and the District of State D** (because the injury took place in State D, thus subjecting it to specific jurisdiction there with respect to the current action).

Answer 106

The driver must provide the video. Parties are entitled to discovery that fits under Rule 26(b) (1), which includes “any nonprivileged matter that is relevant to any party’s claim or defense.” In other words, even if the matter is only relevant to the opposing party, it would still be covered. Additionally, Rule 34 requires a party to produce relevant physical material, including electronically stored information, such as the recording here. There is no exception to relevance for matter that is damaging to a party, so (B) is incorrect. _(Being damaging to the defendant’s defense might be reason not to disclose it as an initial disclosure because the defendant would not use the recording to support his defense, but the recording would have to be disclosed on a proper request.)_

Answer 107

The reporter’s best argument is that the closure here is not necessary to preserve an overriding interest because trials and pretrial hearings generally must be open to the public. The Supreme Court has held, at least in the context of criminal cases, that trials and pretrial proceedings can be closed only if closure is necessary to preserve an overriding interest and the closure order is narrowly tailored to serve the overriding interest. While the Court has not yet established the standard for civil matters such as the case here, several Justices and commentators have suggested that the same standard will be applied in civil cases since they too have historically been open to the public.

Answer 108

An entry of default may be set aside for “good cause shown.” Although not specifically required by the Federal Rules, a majority of courts also will require some showing of a meritorious defense. (D) is incorrect because a majority of courts will also require a showing of a meritorious defense.

Answer 109

_The plaintiff’s suit is unlikely to be successful because the two suits arise out of the same transaction or occurrence._ Claim preclusion (res judicata) requires that **(i) a valid, final judgment on the merits was entered in the first case;** **(ii) the cases were brought by the same claimant against the same defendant; and** **(iii) the same cause of action is involved in the later lawsuit.** ***_Generally, a claimant is required to assert all causes of action arising out of the same transaction or occurrence that is the subject matter of the claim._*** ***_I_*** ***_n the situation of installment payments, the claimant is required to sue on all installments due at the time of the suit. If there is an acceleration clause, the claimant must sue for all installments._*** Here, the plaintiff should have sued for all installments in the first lawsuit. Because she did not, her second suit is barred by claim preclusion.

Answer 110

First, a nonparty may intervene when it has an unconditional right to do so by a federal statute. Second, a nonparty may intervene if (i) it has an interest in the property or transaction the is the subject matter of the action; (ii) the disposition or resolution of the action may as a practical matter impair the nonparty’s ability to protect its interest; and (iii) the nonparty’s interest is not adequately protected by an existing party in the action.

Answer 111

The notice of removal should be filed in the Northern District of State B only. **_The federal removal statute provides that the notice of removal should be filed in the federal district court for the district that geographically encompasses the state court from which the action is being removed._** Thus, (D) is correct. (A) incorrectly states that a notice of removal may be filed in the federal district in which a substantial part of a lawsuit took place or in any federal district of the state in which the defendant resides. (B) incorrectly states that a notice of removal may be filed in the federal district in which the events took place or in which the defendant resides. (C) incorrectly states that the notice of removal may be filed in any district of the state in which the defendant resides

Answer 112

The court should grant the motion to dismiss for failure to state a claim upon which relief can be granted. The federal pleading rules generally require the pleader to assert short and plain statements in the complaint to put the other side on notice of the claim being asserted; detailed assertions of facts underlying the claim are generally not required. However, there are certain special pleading rules that require a party to state more detail under special circumstances, including claims that assert fraud or mistake. Under such special circumstances the federal rules specifically require that a plaintiff assert the claim for relief with ***particularity***. Here, choice (C) is the best answer because it is the only choice to correctly state the rule. The salesperson’s motion to dismiss should be granted in this case because the plaintiff’s complaint fails to state the claim with ***particularity***. Choices (A), (B), and (D) all misstate the special pleadings rule that applies to complaints asserting fraud and mistake.

Answer 113

However, a class action is not moot, and the class representative may continue to pursue it—even if the representative’s own controversy has become moot—because the claims of others in the class are still viable.

Answer 114

The storeowner can give up his case voluntarily by way of voluntary dismissal. If the defendant has answered or filed a motion for summary judgment or there was a previous dismissal, the plaintiff must file a motion for voluntary dismissal by leave of the court, and the court has the discretion to grant dismissal on such terms and conditions as the court deems proper. Here, because the distributor answered the complaint, this motion for voluntary dismissal with leave of the court was a proper vehicle to attempt to achieve the storeowner’s goal; however, due to the excessive time (14 months) and expense (over $200,000), it is unlikely that the court would deem these conditions proper to grant such a dismissal. (A) is wrong because, although it correctly states that the proper motion to file is a motion for voluntary dismissal without prejudice, the outcome based on the rationale is highly unlikely without other evidence. Judges are free to comment regarding their opinion of the evidence presented, and without more, there is no evidence that such a comment rises to the level of the judge being biased sufficiently to grant such a motion. (C) is wrong because it is not procedurally correct. A notice of dismissal may be filed by a plaintiff who wishes to voluntarily dismiss the case without leave of the court; however, it is only proper if the defendant has not answered or filed a motion for summary judgment. Here, the distributor answered the complaint. Therefore, the notice of dismissal is improper. (D) is wrong because, although like choice (B), it correctly states that the proper motion to file is a motion for voluntary dismissal without prejudice, the outcome based on the rationale is incorrect. There is no such rule that courts are required to freely grant such motions to further judicial economy. In fact this statement is counterintuitive as to do so would cost more judicial time and resources

Answer 115

Supreme Court has held that a joint tortfeasor subject to joint and several liability is not a person needed for just adjudication

Answer 116

The company is entitled to a jury trial only for issues involving the trespass action. In this case, both legal and equitable issues exist. **_The defendant is entitled to a jury trial on the legal issues in the case, even though the equitable issue of whether an injunction mandating removal of the building should be issued clearly predominates._** Hence, (D) is incorrect. (A) and (C) are incorrect because, as stated, the issue regarding removal of the building is equitable, and thus there is no right to answer it to a jury.

Answer 117

The tenant may opt out if the court allows class members a second opportunity to opt out. **_In a “common question” class action, a judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt out. [Fed. R. Civ. P. 23(e)]_** (A) is incorrect because there are only two opt-out periods, with the initial notice and with the settlement agreement, and the latter only applies if the judge requires it. (C) is incorrect and reflects a prior version of Rule 23. (D) is incorrect for the reasons stated above.

Answer 118

a defendant’s answer if the defendant did not assert a Rule 12(b) pre-answer motion

Answer 119

Pursuant to Fed. R. Civ. P. 42(b), the court may join unrelated claims between a party, but may decline to do so when doing so would cause jury confusion or some other prejudice.

Answer 120

A motion to increase a jury's award of damages is a motion for additur. Additur is unconstitutional in federal court.

Answer 121

Therefore, a transferee venue will apply its own conflict of law principles to determine the applicable substantive law.

Answer 122

The CFO failed to discover what was reasonably known to the organization, thus the corporation failed to provide the required disclosure. **_The proper motion for the plaintiffs to make in this situation is a motion to compel a discovery response._** A motion to compel disclosure is the applicable motion when a party has failed to make a disclosure required by Fed. R. Civ. P. 26(a). That is inapplicable to this situation which deals with the responses required in a deposition.

Answer 123

If a claim is filed in state court that could have originally been filed in federal court, the defendant(s) have the option to remove the case to federal court within 30 days of service of the initial pleading. If a new defendant is added to the action, that new defendant has 30 days to decide whether or not to remove. **However, there is an exception to the right of removal.** Where the federal court would have subject-matter jurisdiction based on diversity and one of the defendants is a citizen of the forum state, the claim cannot be removed to federal court. **This is known as the home-state defendant rule.**

Answer 124

(1) the same transaction or occurrence; or (2) a common nucleus of operative facts.

Answer 125

Belief that the court did not have jurisdiction, however, , no matter how well founded (i.e. exagerated amount of damages), does not qualify as good cause, and therefore the general counsel's reason for not responding will not prevent the court from imposing sanctions.

Answer 126

a party, as well as that party's officers, servants, agents, employees, and attorneys.

Answer 127

In a criminal case, however, the judge can only grant judgment in favor of the defendant. The judge cannot grant judgment finding the defendant guilty, because the defendant is entitled under the Constitution to a full and complete trial.

Answer 128

dditionally, unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least six members [Fed. R. Civ. P. 48(b)]. Here, the verdict was unanimous, but because another juror became ill and was dismissed after deliberations began but before the verdict was returned, the jury that returned the verdict was comprised of only five members, less than the minimum. Because the facts do not indicate that the parties stipulated that this would be acceptable, the company's motion for a new trial should be granted. (A) is incorrect. Just because the timing requirement was satisfied does not mean that the motion should be granted. The motion should be granted because there is a valid reason (violation of the law), rather than simply because it was made within the time frame for a validly filed motion.

Answer 129

The insurance company can bring the interpleader action in federal court. The Federal Interpleader Act provides special rules for dealing with subject matter jurisdiction, personal jurisdiction, and venue. **_Under the act, interpleader can be brought if any two claimants are citizens of different states and the amount in controversy is $500 or more._** Complete diversity is not required. Here, the mother is a State B resident, and the former girlfriend is a State A resident. Thus, both claimants are diverse from one another, and the $70,000 amount in controversy exceeds the $500 minimum.

Answer 130

The court of appeals can hear the factory owner’s appeal because injunctions are reviewable before there is a final judgment. Generally, only final orders are reviewable, but certain interlocutory orders, including those involving injunctions, are immediately reviewable. (A) and (D) are incorrect for similar reasoning. **Under the Interlocutory Appeals Act, a trial court judge may certify that the order has a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of litigation, and the appellate court may, as a discretionary matter, hear the appeal. However, that Act also allows appeals of orders relating to injunctions regardless of whether there is unclear case law or whether the judge has certified the issue.** Thus, is does not matter that there is conflicting federal precedent or that the trial judge has not certified the order as described above. (C) is incorrect because a final judgment is not required when a party appeals an order granting, modifying, or denying an injunction.

Answer 131

(C) The commencement of the action in State A is most relevant. When a case is removed from state court to federal court, venue is set in the federal district court that embraces the state court in which the action was pending, making the federal district court of State A the only appropriate venue choice. Thus, (C) is the correct answer because the most (indeed, only) relevant fact is the fact that the action was commenced in a court of State A. Unlike cases commenced in federal court, in cases removed to federal court, the residence of the defendant contractor (answer choice (B)) and the place where a substantial part of events relating to the claim occurred (answer choices (A) and (D)) are irrelevant.

Answer 132

The court will not likely dismiss the action. **_Insufficient process refers to defects in the documents and their content, whereas insufficient service of process refers to the manner in which the documents were presented, delivered and/or served to the defendant._** The key to this answer is reading comprehension. The facts state that the homeowner filed a “motion to dismiss for insufficient process,” not “insufficient service of process,” which are two separate grounds for dismissal. [See Fed. R. Civ. P. 12(b)(4) and (5), respectively] (A), (B) and (D) are all wrong because they all relate to issues regarding insufficient service of process, which is not relevant to the call of the question. (C) is correct, because the homeowner filed the wrong motion. The homeowner should have filed a motion to dismiss based on insufficient service of process. Generally speaking, service of process is sufficient if it is made by: (i) personal service, (ii) service left at the defendant’s usual place of abode with one of suitable age and discretion, or (iii) service upon an authorized agent of the defendant. Alternatively, service may be made under state rules or by mail under the waiver of service provision [see Fed. R. Civ. P. 4(d)].

Answer 133

Ms. Removal is 30 days old. The federal court should not remand the action to state court. A defendant may remove an action that could have originally been brought in the federal courts. Generally, a defendant must file a notice of removal within 30 days after receipt by or service on the defendant of the initial pleading or summons (when he learns the case is removable). **A defendant may not remove a case based solely on diversity if he is a citizen of the forum state; however, that restriction is not jurisdictional but rather procedural. Once removed, a case must be remanded back to state court if the federal court lacks subject matter jurisdiction.** A motion to remand based on procedural defects in removal must be filed within 30 days of removal. Here, the federal court has diversity of citizenship jurisdiction over the action. The plaintiff is from State A and the defendant is from State B (and thus not a citizen of the forum state), and the amount in controversy is $200,000. _Although the notice of removal was untimely, the motion to remand was also untimely. ***A motion to remand on grounds other than a lack of subject matter jurisdiction (e.g., the notice of removal was untimely filed) must be filed within 30 days of removal.** The failure to timely remand the case on procedural defects is fatal.*_ Thus, (B) is correct. (A) is incorrect. Although a defendant may not remove a case based solely on diversity when he is a citizen of the forum state, that fact does not address whether the motion to remove or remand was timely. Had the State A citizen timely filed a motion to remand, the motion to remand would have been granted. (C) is incorrect. Although it is true that the notice of removal was not timely, the plaintiff must object to any defects in removal by filing a motion to remand with the federal court within 30 days. Here, the State A citizen failed to do so. (D) is incorrect because state law claims may be heard in federal court under the federal court’s diversity of citizenship jurisdiction.

Answer 134

The employee does not have the right to an immediate appeal. **_Interlocutory orders are the rulings that trial judges make during the course of pretrial proceedings and trials that do not completely resolve the case._** **Therefore, they are not final.** As a result, interlocutory orders are typically not immediately reviewable on appeal until a final order is made, unless they meet one of the exceptions permitting an appeal as of right **(i.e., orders granting injunctions; orders appointing a receiver; orders in admiralty cases finding liability but leaving damages to be assessed later; patent infringement orders where only an accounting is ordered; and orders affecting or changing possession of property).** **The Interlocutory Appeals Act also may permit a review of an interlocutory order, but it is discretionary, and may be available only when** **(i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; and** **(ii) the court of appeals then agrees to allow the appeal.** ***_A party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal._*** Here, the trial court’s denial of the employee’s pretrial motion to compel discovery is an interlocutory order. As such, there is no immediate right to appeal. Choice (D) correctly states the rule under the Interlocutory Appeals Act. The Act only offers a discretionary review; it is not reviewable by right. (A) is wrong because it incorrectly classifies the order as a collateral order. The collateral order rule may permit a review if the claim or issue is separable from and collateral to the main suit and is too important to require deferring appellate review. The order then may be classified as a judgment in a separate (“collateral”) proceeding. Here, the order relates to a discovery request involving the main issue—wrongful discharge. Therefore, it is not a collateral order. (B) is wrong because, as stated above, this is an interlocutory order, not a final order. A final order is one that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties, but as to all causes of action involved. Here, there has not even been a trial yet, and the pretrial order only addresses a motion to compel discovery. As such, it is an interlocutory order. (C) is wrong because writs of mandamus are only permitted in exceptional cases. Mandamus commands a trial judge to act, and prohibition commands the judge to refrain from acting. The writs are available only if an appeal will be insufficient to correct a problem and the trial court’s actions constitute a serious abuse of power that must be immediately corrected. The facts in this question clearly do not support such exceptional circumstances.

Answer 135

The ruling was defective because the jury’s vote was not unanimous. ***_In federal civil cases, a verdict must be unanimous unless the parties agree to the contrary._*** Here, there are no facts indicating that the parties agreed to less than a unanimous vote. Therefore, the ruling is defective because it was not unanimous.

Answer 136

The Federal Rule will apply. **Under the Erie doctrine, although the federal court generally applies the substantive law of the state in which it is sitting,** ***_when a state law-based claim is brought in federal court based on diversity of citizenship and a specific federal statute or a Federal Rule of Civil Procedure applies, the federal court must apply federal procedural law as long as the federal rule is rationally deemed to be procedural and does not abridge, enlarge, or modify any substantive rights._*** Here, there is a specific federal procedural rule [Rule 48] under the Federal Rules of Civil Procedure that requires jury verdicts to be unanimous. This rule is procedural because it is designed to deal with what happens in the process of litigation, as opposed to dealing with the rights of the parties outside of court, which would be deemed a substantive rule. Moreover, the federal rule directly conflicts with the state law. Therefore, the specific Federal Rule of Civil Procedure will be applied in federal court, as long as it is consistent with the Rules Enabling Act and is not unconstitutional. (A) is wrong because it incorrectly states that the state law will apply and gives an incorrect statement of the law. State law does not always govern when there is a state-based claim filed in federal court based on diversity, as stated above. (B) is wrong because it incorrectly states that the state law will be followed, and it incorrectly references the “outcome determinative” test. This test was set forth by the Supreme Court to use when the law is unclear regarding whether an _issue is substantive or procedural for Erie purposes and holds that an issue is substantive if it substantially affects the outcome of the case._ Here, there is a Federal Rule of Civil Procedure that is directly on point. As such, the test does not apply to this situation. (D) is wrong because it incorrectly references the “balance of interests” test, which is another test the Supreme Court set forth to use when the law is unclear regarding whether an issue is substantive or procedural for Erie purposes. _Under this test, the federal court is to weigh whether the state or federal judicial system has the greater interest in having its rule applied._ Again, here there is a Federal Rule of Civil Procedure that is directly on point. As such, the test does not apply to this situation.

Answer 137

**The plaintiff may enforce the judgment because judgments are enforceable during pendency of post-trial motions unless the court otherwise orders and on such conditions for the security of the adverse party as are proper.** Here, the court has not ordered a stay on enforcement; therefore, the plaintiff can enforce the judgment. (D) is therefore incorrect. (A) and (C) are incorrect because execution on judgments is not allowed for 14 days after entry except in the case of injunctions or receiverships, which are immediately enforceable unless otherwise ordered by the court.

Answer 138

The court should apply the presumption. Under the Erie doctrine, in a case based on diversity of citizenship, the federal court must apply the substantive law of the state in which the court sits. However, the court will apply federal law to procedural issues. Federal Rule of Evidence 302, which follows the Erie doctrine, provides that application of state law is appropriate only when the presumption operates on a substantive element of a claim or defense. The presumption at issue here, by presuming negligence on the part of a driver who strikes another vehicle in the rear, impacts on the prima facie case elements of duty and breach of duty. Matters involving elements of a prima facie case are substantive in nature; thus, state law applies to such matters. Consequently, the presumption of negligence recognized by State A should be applied by the court on this issue, and (A) is therefore incorrect. (B) is incorrect because it is immaterial whether State B recognizes the presumption. (C) is incorrect because it states that a federal court applies both the substantive and procedural law of the state in which the federal court sits. It applies only substantive state law.

Answer 139

The court should dismiss the case. For claim preclusion to apply, (i) the earlier judgment must be a valid, final judgment on the merits; (ii) the cases must be brought by the same claimant against the same defendant; and (iii) the same cause of action must be involved in the later suit. ***_Under Federal Rule of Civil Procedure 41, dismissals for lack of prosecution are with prejudice and operate as an adjudication on the merits unless the court designates otherwise._*** As a result, the judgment has claim preclusion effect on subsequent cases between the parties. (A) is incorrect. Although the factual merits of the case were not determined, Rule 41 dictates that the judgment is on the merits unless the court states otherwise. (B) is factually incorrect, as the court complied with Rule 41. (D) is incorrect as too broad. The court may designate a dismissal for want of prosecution as an adjudication on the merits but is not required to do so. Here, the court could have designated the dismissal as one without prejudice, meaning that the plaintiff could bring her action in another court.

Answer 140

... “good cause shown.” Although not specifically required by the Federal Rules, a majority of courts also will require some showing of a meritorious defense.

Answer 141

***The store should describe the nature of the report so that the customer and her lawyer can assess the store’s claim that the report is protected from discovery.*** **_When a party claims that certain discoverable information is privileged trial preparation material, it must disclose the existence of the material in sufficient detail to the opposing party so that the opposing party may assess the claim of privilege._** (A) is incorrect because a party must disclose the existence of material it claims is protected by privilege. (B) and (D) are incorrect because they do not describe the proper procedure for claiming that material is privileged work product.

Answer 142

Thus, it is not correct that he is immune from process as long as he is only a witness and not a party. Immunity from being a witness is a separate concept from being fraudulently induced to come into a jurisdiction for purposes of serving process and obtaining personal jurisdiction. Participation in a judicial proceeding is grounds for immunity and does not require fraud on the part of the serving party. Thus, the choice providing immunity only if he were fraudulently served with a subpoena to be a witness is incorrect.

Answer 143

(i) certify in writing all efforts she made to give notice of the hearing to the adverse party and the reasons why notice should not be required; and (ii) provide some security, the amount of which is determined by the court, to pay for any costs and damages incurred by the adverse party if he was wrongfully enjoined or restrained. The United States, its officers, and its agencies are not required to give security. Preliminary injunctions, summary judgments, and judgments as a matter of law require notice to the other party in order to be issued.

Answer 144

all suits at common law where the amount in controversy exceeds $20.

Answer 145

the legal claim should be tried first to the jury and then the equitable claim should be decided by the court. The jury’s fact determinations bind the judge.

Answer 146

a reasonable time not to exceed one year.

Answer 147

The Supreme Court may hear some appeals from state courts and some appeals directly from federal district courts. The Supreme Court hears, on direct appeal, any order granting or denying an injunction in any proceeding required to be heard by a three-judge district panel. It also may hear by discretionary writ of certiorari final judgments of the highest court of a state if: (i) the validity of a treaty or federal statute is drawn into question; (ii) the validity of a state statute is drawn into question on the ground that it is repugnant to the federal Constitution or to a treaty or federal statute; or (iii) any title, right, privilege, or immunity is claimed under the federal Constitution or treaty or federal statute.

Answer 148

a state court generally must recognize the judgments of a sister state and federal courts generally must recognize judgments of state courts. Recognition of judgments is required between state courts, between state and federal courts, and between federal courts.

Answer 149

Here, the plaintiff came forward with affidavits supporting his contention that the light was red when the defendant entered the intersection. The defendant here must counter those affidavits with her own or risk summary judgment being entered against her.

Answer 150

As such, when a case presents both legal and equitable claims, the right to a jury is preserved for all legal claims, but not for equitable claims. Instead, the legal claim should be tried first to the jury, and the equitable claim will go to the court (the jury's finding on fact issues will bind the court in the equitable claims). Here, the call of the question asks if the former manager can demand a jury trial for both claims. **Under the Seventh Amendment, he only has a right to a jury trial on the legal claim for money damages, not the equitable claim for the injunction.** Instead, the court will hear the equitable claim for the injunction, but will be bound by any of the jury's factual decisions that relate to the equitable claim.

Answer 151

The jury will first determine the issues relating to the breach of contract claim, and the judge will determine the issues relating to the rescission claim that have not already been resolved by the jury. à If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury’s finding on fact issues will bind the court in the equitable claim. (A) is incorrect because all fact issues relating to the company’s legal claim must first be determined by the jury. Only then may the judge try the woman’s equitable claim. (C) and (D) are both incorrect because neither the jury nor judge acts as the sole finder of fact when the case has legal claims and equitable claims, and a jury has been demanded on the legal claims.

Answer 152

. There is no such time limit for a lack of subject matter jurisdiction. The court must remand whenever it is shown that there is no subject matter jurisdiction.

Answer 153

**Under the Rules Enabling Act, a Federal Rule is valid if it deals with "practice or procedure" and does not "abridge, enlarge, or modify" a substantive right.** Here, there is a specific federal procedural rule that is on point [Fed. R. Civ. P. 48], which requires jury verdicts to be unanimous, unless the parties agree otherwise. Since there is no evidence of agreement, the federal procedural rule will apply, and the motion should be denied.

Answer 154

**_a judgment binds the plaintiff or defendant (or their privies) in subsequent actions on different causes of action between them (or their privies) as to issues actually litigated and essential to the judgment in the first action._** Issue preclusion focuses on something relatively narrow--an issue that was litigated and determined in the first case, and that is relevant in a second case. _With issue preclusion, the issue is deemed established in the second case without need to proffer evidence on it._ i.e. Here, the car driver was a party to the first lawsuit and, after both parties "vigorously litigated" the issues of negligence, the jury determined that the car driver was negligent in the first case. Since the car driver filed a negligence claim against the truck driver claiming that he ran the red light in the first case, and the truck driver defended on the grounds that the car driver was contributorily negligent for speeding, the issue of who was negligent was essential to the judgment in the first action. Therefore, the court will preclude the car driver from relitigating whether she was negligent in the claim asserted against her by the passenger. For these same reasons, (A) is wrong. (B) is wrong because the car driver's due process rights are not violated. **_Due process requires that issue preclusion may be asserted only against someone who was a party (or in privity with a party) to the previous case (the case in which the issue was actually litigated and determined)._** Here, due process is satisfied because the car driver was a party in the previous claim and vigorously litigated the claim. **Note that the car driver may be able to assert the traditional "mutuality" rule to prevent the passenger from asserting issue preclusion,** but this is not what was asserted in choice (B); due process was. ***_Under the traditional "mutuality" rule, only someone who was a party (or in privity with a party) in the previous case can use issue preclusion._*** **However, this requirement is not imposed by due process and has been subject to modification in certain circumstances to allow nonparties to take advantage of a prior judgment. In fact, although courts have been very reluctant to permit a nonparty to use issue preclusion to aid him offensively (as a plaintiff) to obtain relief, the Supreme Court has upheld its use offensively by a nonparty where it was fair and equitable to do so.** [Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)] (D) is wrong because it incorrectly states that the claim will be precluded by claim preclusion (res judicata). Claim preclusion focuses on something relatively large--the scope of a "cause of action." **If it applies, the result is usually to bar the same party in the first case from asserting a second case against the other party in the first case.** Issue preclusion, in contrast, focuses on something relatively narrow--an issue that was litigated and determined in the first case and that is relevant in a second case.

Answer 155

For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year from the judgment; for the other grounds, the motion must be made within a reasonable time. (But remember that a lack of subject matter jurisdiction may be raised at any time.) Such a motion is left to the trial judge’s discretion, and, on appeal, her decision will be reviewed on an “abuse of discretion” standard. i.e. Here, the name and address of the witness could have been easily discovered had the pedestrian’s attorney simply requested a copy of the police report from the police department. This is such an obvious case of lack of due diligence on the part of a represented party that it would be an abuse of discretion to grant relief based on newly discovered evidence.

Answer 156

30 days after entry except for injunctions and receiverships, which are not held up unless otherwise ordered by a court.

Answer 157

To determine if the party is truly indispensable, the first step is to determine whether the absentee should be joined. One reason why an absent party should be joined is when complete relief cannot otherwise be accorded among parties. However, under the tort law in a number of states, any single joint tortfeasor may be liable for the entire wrong, making complete relief for the plaintiff possible. Another reason to join an absent party is if he has an interest in the subject matter of the suit such that, without his presence, his ability to protect his interest will be impaired or the existing parties will be subject to a substantial risk of incurring multiple or inconsistent obligations. Here, the electrician has no interest to protect. Even if the condo owner were to sue the electrician later, the electrician would not be precluded from raising any defenses that the gas worker raised, because the electrician was not a party to the initial case and therefore issue preclusion would not apply to him. Accordingly, the electrician is not a necessary party.

Answer 158

The rule does not provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice. Additionally, for statute of limitations purposes, proposed claims may be considered to "relate back" to the date of the original pleading in which the claim was made under Rule 15(c). **_That is critical here because, although the statute of limitations for the proposed products liability claim had expired at the time the motion was made, the amended complaint asserting a products liability claim relates back to the original filing because that claim stems from the same facts alleged in the original complaint, and the statute of limitations had not expired at the time of the original filing._** (A) is incorrect because a **plaintiff may amend the complaint once as a matter of course (i.e., without court intervention) not later than 21 days after service of the auto manufacturer's answer.** Here, 40 days have passed since the auto manufacturer filed its answer, so amending as a matter of course is not permitted.

Answer 159

Note that this still may be a losing argument, as this argument will not prevail unless the burden to the defendant is **"so gravely difficult and inconvenient that a party is unfairly put at a severe disadvantage in comparison to his opponent."**

Answer 160

files a motion or at the time he files his answer, whichever occurs first. If he does not, the defendant waives the defense.

Answer 161

each state of which one of its partners is a citizen, both limited and general. Here, the plaintiff is a citizen of State D, and the partners are citizens of State A, State B, and State C. Thus, complete diversity exists, and the amount in controversy is stated to exceed $75,000. As a result, diversity of citizenship jurisdiction exists. _A corporation’s principal place of business is one of its possible citizenships—every state in which the corporation was incorporated being the other possible citizenships. The same rule does not apply to partnerships; a partnership takes on the citizenships of its partners._

Answer 162

**for cases based solely on diversity, _supplemental jurisdiction is not available for claims against persons made parties under the impleader rules_ when use of supplemental jurisdiction would be contrary to the requirements of diversity jurisdiction.** _In the instant case, the owner-operator shares state citizenship with the worker and was made a party when the power company impleaded him on a claim for indemnity._ Because a claim by the worker against the owner-operator would circumvent the complete diversity requirement, supplemental jurisdiction is not available for that claim. Hence, (A) is correct. (B) is _incorrect because supplemental jurisdiction cannot be used to override the requirements of diversity jurisdiction_, as discussed above.

Answer 163

**exercise supplemental (pendent) jurisdiction over the state law claim if the federal and state claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding.** The court may continue to exercise supplemental (pendent) jurisdiction over the state claim even though the federal claim is dismissed on the merits. **However, the state claim should probably also be dismissed (without prejudice) if the federal claim is dismissed before trial.** Here, although the federal copyright claim was invalid, it was deemed to be so during trial, before a verdict was rendered. Since the case is currently being tried, the court will likely hear the state claim for the sake of judicial economy.

Answer 164

When both a federal question and diversity jurisdiction exist, the federal question jurisdiction normally "trumps" diversity jurisdiction. In any event, if this case were to be solely based on diversity, the defendant could not remove because she is a citizen of the forum state.

Answer 165

bankruptcy cases, patent and copyright cases, antitrust cases, and a few other less common types of actions.

Answer 166

(Rationale: If, for example, the defendant relied on some other defense or defaulted instead of defending on the basis of the new federal statute, no federal question would ever be involved in the case. [See Louisville & Nashville Railroad v. Mottley, 211 U.S. 149 (1908)])

Answer 167

**a party intends to call the expert as a trial witness**. Conversely, the opinion of an expert who is retained in anticipation of litigation but who is not expected to testify at trial (i.e., a consulting expert) is discoverable only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means. Absent such circumstances, these opinions are not discoverable, regardless of whether the nontestifying expert was informally consulted or whether she was retained or specially employed.

Answer 168

Trial preparation materials are documents or other tangible things prepared in anticipation of litigation or for trial. Here, the manager’s report is relevant because it contains facts relating to the incident that is the basis of plaintiff’s claim. **_Moreover, it is not subject to the exception for trial preparation materials because it was prepared in the ordinary course of business to comply with state law, not in anticipation for litigation._** Finally, the costs of producing the report likely would not be prohibitive.

Answer 169

In a situation where desired information may be ascertained from the business records of the party on whom the interrogatory was served, and where the burden of finding the information is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to provide the serving party reasonable opportunity to examine the records. [Fed. R. Civ. P. 33]

Answer 170

i.e., the law of the state in which the transferee court sits now applies. This is in contrast to a transfer on convenience grounds, in which case the law of the transferor court continues to apply.

Answer 171

the court has discretion to decline to hear the case in deference to a court in another country if it determines that the other country provides a substantially more efficient, convenient, and fair forum.

Answer 172

the nonparty is or may be liable to the party for any part of a judgment that the plaintiff may recover against it. Because the exterminator is claiming that the subcontractor is liable for the exterminator’s liability to the plaintiff, it may implead the subcontractor.

Answer 173

file a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue. Otherwise, the right to a jury trial generally is deemed waived. Note, however, that the Supreme Court has held that, in the absence of compelling reasons to the contrary, a court should grant relief from the waiver if the issue is normally tried by a jury.

Answer 174

in a defendant’s first response—either in its timely motion to dismiss before the answer or in the answer, whichever is first.

Answer 175

Such a transfer has no strict time limit. Rather, transfer is left to the discretion of the trial judge, and the judge may refuse transfer where the case has been pending for some time and would work a prejudice to one of the parties. Two months is likely not a sufficient period to prevent transfer of the case.

Answer 176

the court expressly determines that there is no just reason to delay entry of judgment. Unless the trial judge makes that express determination, its order determining the merits of fewer than all of the claims is not a final judgment and is not appealable. Summary judgment is not a final judgment unless it disposes of all of the parties’ claims or the court expressly determines that there is no just reason for delay.

Answer 177

**plain error standard of review.** In order to reserve its right to appeal an error in an instruction given or, as is the case here, a failure to give an instruction, a party must object on the record before the instructions are given. If adequately preserved, the instructions are reviewed using **an abuse of discretion standard.** _However, if the objection is not made (and therefore not preserved for full appellate review), then the court’s review is limited to considering whether there was a plain error in the instruction that affected substantial rights._

Answer 178

a de novo standard. It does so because the issue is one of law. **In contrast, when an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a clear showing of an abuse of discretion.** Note that when a renewed motion for judgment as a matter of law and a motion for a new trial are made in the alternative and the renewed motion is granted, the court rules hypothetically on the new trial motion so that no remand is required if the ruling on the judgment as a matter of law is subsequently reversed on appeal.

Answer 179

This is because venue for an action removed under section 1441(a) lies in the federal district court “embracing the place where such [state] action is pending.”

Answer 180

**(1) a case based on diversity must be removed within 30 days of the defendant's receipt of a copy of the paper (order, motion, etc.) that makes the case removable; but** **(2) in no event may the case be removed more than one year after it was commenced in state court. [28 U.S.C. §1446]**

Answer 181

be merged into the prior judgment. be barred by the prior judgment. Because the question specifically states that the claimant won the earlier suit, to say that the claim either merged into or is barred by the prior judgment is incorrect.

Answer 182

The driver can join his contract claim with his negligence cross-claim, but he is not required to do so. **As a general rule, a party may assert a cross-claim against a co-party only if the cross-claim arises from the same transaction or occurrence as that of the original action or of a counterclaim. *_However, once the party has filed such a cross-claim, he also may join with it any other claim that he has against the same party._*** Here, the driver's contract claim is unrelated to the pedestrian’s negligence claim; however, the driver’s negligence claim is related to the pedestrian’s negligence claim. Thus, the contract claim also can be asserted in this case.

Answer 183

Venue is proper in the District of State A, the District of State D, and the District of State B. **Federal venue in civil actions is proper in** **(i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; *_and_*** **(ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred.** The District of State D is proper because a substantial part of the events giving rise to the claim—use of the widget and the injury—took place there. Substantial events also occurred in the District of State B (the sale). Additionally, venue is proper in other districts because the manufacturer is deemed to reside there. **Corporations are deemed to reside in any district in which it is _subject to personal jurisdiction with respect to the action in question.!!!!!!_** **The manufacturer is subject to personal jurisdiction and thus deemed to reside in the District of State A (because its incorporation and principal place of business are there, thus subjecting it to general jurisdiction there), the District of State B (because it sold the widget from its store there, thus subjecting it to specific jurisdiction there with respect to the current action), and the District of State D (because the injury took place in State D, thus subjecting it to specific jurisdiction there with respect to the current action).**

Answer 184

The driver must provide the video. **Parties are entitled to discovery that fits under Rule 26(b) (1), which includes “any nonprivileged matter that is relevant to any party’s claim or defense.”** In other words, even if the matter is only relevant to the opposing party, it would still be covered. **Additionally, Rule 34 requires a party to produce relevant physical material, including electronically stored information, such as the recording here.** There is no exception to relevance for matter that is damaging to a party, so (B) is incorrect. (Being damaging to the defendant’s defense might be reason not to disclose it as an initial disclosure because the defendant would not use the recording to support his defense, but the recording would have to be disclosed on a proper request.)