Civil Procedure

Question 1

Civil case - max # of peremeptory challenges

Answer 1

3

Question 2

Plaintiff required to respond to defendant’s answer? Assume denial or admit?

Answer 2

No - only if ordered by court

Otherwise, deemed to deny any allegations

Question 3

12(b)(6) = Final judgment? Appealable?

Answer 3

Yes, final judgement and appealable

UNLESS multiple claim and parties (could be revised before final judgment of all claims/parties)

Question 4

Criteria for prelim injunction by P

Answer 4

1) P is likely to succeed on the merits
2) P is likely to suffer irreparable harm in absence of relief
3) Balance of equities in P favor
4) Injunction is in best interest of public

Question 5

Proper service of process - must follow state law of forum state, state law where service is made, or either?

Answer 5

Either

Question 6

Class certification decision - appealable?

Answer 6

Yes, may appeal grant or denial within 14 days.

BUT discretion of appellate court to hear (not required)

Question 7

Order granting injunction - immediately appealable?

Answer 7

Yes as matter of right.

Most interlocutory orders not immediately appealable, but certain equitable orders are

Question 8

Ways to consent to PJ (waiver)

Answer 8

1) express consent
2) implied consent
3) voluntary appearance in court to defend case on merits

Question 9

Proper joinder of defendants requires…

Answer 9

Right to relief must arise out of the same transaction, occurrence or series of transactions or occurrences

(also - relief must be sought jointly, severally, or in the alternative)

Question 10

days to appeal an order or judgement

Answer 10

Within 30 days from date of entry of certified judgement

Question 11

Attorney’s fees as Rule 11 sanction - need a motion?

Answer 11

Yes - party must make a motion, court cannot just impose

Question 12

days for ∆ to implead a third party

Answer 12

Within 14 days after serving answer

Question 13

How many jurors needed for civil suit? Any way to go lower?

Answer 13

6

UNLESS parties stipulate to a jury of fewer

Question 14

OK to change name of defendant? If so, when does it relate back?

Answer 14

OK. Court should freely grant leave to amend when justice requires.

Relates back to date of original pleading if:

1) Same claim/defense
2) New party knew or should have known of potential action; and
3) New party received notice within 90 days after filing of original complaint

Question 15

Div action - State A –> State B. State B plaintiff wants to join. OK?

Answer 15

No - need to preserve complete diversity.

Question 16

Claim preclusion elements

Answer 16

1) same P, same D
2) Lawsuit #1 ended in final judgment on merits
3) Same claim as lawsuit #1

Question 17

Issue preclusion elements

Answer 17

1) Same issue actually litigated
2) Final valid judgment on the merits
3) Issue was essential to the judgment; AND
4) Party against whom preclusion is asserted must have been a party in prior lawsuit (or repped in that lawsuit - i.e., successor-in-interest) - must be fair for new P to assert same issue

BUT court has discretion - e.g., if P#2 could have easily joined lawsuit #1.

Question 18

“Two-dismissal” rule

Answer 18

If a plaintiff voluntarily dismissed a prior state or federal action based on the same claim by filing a notice of dismissal, then a subsequent dismissal of the same claim by notice will be with prejudice, and thus has preclusive effect.

Question 19

Jury has both special interrogatories AND general verdict - diff conclusions OK?

Answer 19

When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, the court may

(i) approve a judgment that is consistent with the answers, notwithstanding the general verdict,

(ii) direct the jury to reconsider its answers and verdict, or
(iii) order a new trial.

Question 20

Fed Tort Claims Act actions - proper venue

Answer 20

Either in

1. the judicial district where the plaintiff resides or 2. in the judicial district where the act or omission occurred.

Question 21

If you waive service of process, days to answer complaint (from which point)

Answer 21

If a def timely returns a waiver of service before being served with process, then def does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside a judicial district of the United States.

Question 22

Hearing appeals - final judgement vs. interlocutory

Answer 22

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

Question 23

Fed statutory interpleader action - what do you have to put up?

Answer 23

Stakeholder must be willing to either deposit the property at issue with the court or to post a bond in an appropriate amount.