Civil Procedure AMP - Trial Matters

Question 1

The court may consolidate actions then before it only when the actions:

A Have a common question of fact only

B Will, when consolidated, foster judicial economy

C Have a common question of law only

D Have a common question of law or fact

Answer 1

D

The court may consolidate actions then before it only when the actions have a common question of law or fact. The answers “have a common question of law only” and “have a common question of fact only” are both incorrect because they are incomplete. That the actions will, when consolidated, foster judicial economy is not a basis for consolidation. It may sound familiar because, under Federal Rule 42(b), a court may separate claims when such separation will foster judicial economy. J0911 Additional Learning

Question 2

A renewed motion for judgment as a matter of law may be filed:

A No later than 14 days after the entry of judgment

B No later than 28 days after the entry of judgment

C At any time before submission of the case to the jury

D At any time before entry of judgment

Answer 2

B

A renewed motion for judgment as a matter of law (formerly Judgment Notwithstanding the Verdict (“JNOV”)) may be filed no later than 28 days after the entry of judgment. Answers that provide that the motion may be filed no later than 14 days after the entry of judgment or at any time before the entry of judgment are incorrect because the moving party has 28 days from the entry of judgment to make a renewed motion for judgment as a matter of law. At any time before submission of the case to the jury is incorrect because that is the standard for a motion for judgment as a matter of law (“JMOL”), not a renewed motion for same. J0918 Additional Learning

Question 3

The Seventh Amendment provides the right to a jury trial in federal courts for the determination of facts in all _______ when the _______.

A Suits at common law or equity; amount in controversy exceeds $20

B Suits at common law; amount in controversy exceeds $20

C Suits at common law or equity; facts are in controversy

D Suits at common law; facts are in controversy

Answer 3

B

The Seventh Amendment provides the right to a jury trial in federal courts for the determination of facts in all suits at common law where the amount in controversy exceeds $20. The Seventh Amendment initially did not apply to equity cases, so answers that state that it applies to “suits at common law or equity” are incorrect. The Seventh Amendment also specifically refers to cases where the amount in controversy exceeds $20, not any case where the facts are in controversy. J0902 Additional Learning

Question 4

In federal civil cases, a jury verdict must be unanimous unless:

A The trial judge directs otherwise

B The parties agree otherwise

C There are more than 10 jurors at the end of the trial

D The trial judge and the parties agree otherwise

Answer 4

B

In federal civil cases, a jury verdict must be unanimous unless the parties agree otherwise. The trial judge’s approval is not needed to allow a non-unanimous jury verdict. Therefore the answers that state that the trial judge and the parties agree otherwise and the trial judge directs otherwise are incorrect. The number of jurors does not affect unanimity, which is still required even if there are more than 10 jurors at the end of the trial. As long as there are six or more jurors, a verdict may be rendered. J0905B Additional Learning

Question 5

Generally, a court can grant a summary judgment where there is no genuine dispute of material fact and the moving party is entitled to a judgment as a matter of law.
If a party fails to support an assertion of fact or fails to properly address another party’s assertion of fact, can the court grant summary judgment?

A No, failure to address a fact does not mean it is undisputed

B Yes, but only if the fact is not material

C Yes, the court may consider the fact undisputed

Answer 5

C

If a party fails to support an assertion of fact or fails to properly address another party’s assertion of fact, the court may consider the fact undisputed and grant a summary judgment. Note that the court may also give the other party an opportunity to address the fact or may issue any other appropriate order. The answer “Yes, but only if the fact is not material” is incorrect because the court may grant a summary judgment where a material fact is not supported or addressed, because it deems the fact to be undisputed. The answer “No, failure to address a fact does not mean it is undisputed” is incorrect because the court may deem that fact undisputed. J0916B Additional Learning

Question 6

As to what issues may a juror testify regarding matters occurring during deliberations?

A A juror may never testify about matters occurring during deliberation

B Only whether extraneous prejudicial information was improperly brought to the jury’s attention

C Only whether any significant outside influence was brought to bear on any juror

D Whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was brought to bear on any juror

Answer 6

D

Under Federal Rule of Evidence 606(b), a juror can testify on matters occurring during deliberation only if she is testifying on a question of whether extraneous prejudicial information was improperly brought to the jury’s attention OR whether any outside influence was brought to bear on any juror. Answers containing only one of the above two scenarios are incorrect because they are incomplete. The answer that a juror may never testify about matters occurring during deliberations is also incorrect. J0910 Additional Learning

Question 7

Can a summary judgment be issued when there is a dispute as to an issue of fact?

A No, a summary judgment can only be issued if there are no disputes as to facts

B Yes, as long as the fact in dispute is not material

C Yes, as long as both parties agree to the summary judgment

Answer 7

B

The standard for summary judgment is that there is no genuine dispute of material fact. Therefore, summary judgment may be issued where there is a dispute as to an issue of fact, as long as the fact in dispute is not material. If there is a genuinely disputed material fact (meaning a dispute backed by evidence on both sides of the issue), the case must go to trial. There is no provision to allow for a summary judgment as long as both parties agree to the summary judgment. (Note that a judgment by consent is possible, however.) If there is a dispute as to a material fact, the summary judgment cannot be issued. If there is no such dispute, it can be issued. It is not correct that a summary judgment can only be issued if there are no disputes as to facts. As discussed above, summary judgment is available when the facts in dispute are not material. J0915B Additional Learning

Question 8

When juror misconduct is alleged, a nonjuror may not testify as to:

A Declarations made by a juror to him

B Seeing the jurors conduct experiments relevant to the case

C Seeing a juror reading a newspaper article about the case

Answer 8

A

A nonjuror is not permitted to testify as to declarations made by a juror to him. However, a nonjuror may testify about evidence outside of this limit (such as when he sees the jurors conducting experiments relevant to the case or a juror reading a newspaper article about the case). J0909 Additional Learning

Question 9

During a trial, a motion for judgment as a matter of law (“JMOL”) may be filed:

A At any time before submission of the case to the jury

B No later than 28 days after the entry of judgment

C At any time before a verdict is entered

Answer 9

A

During a trial, a motion for judgment as a matter of law (“JMOL”) may be filed at any time before submission of the case to the jury. The moving party must specify in its motion the judgment sought and the law and facts on which the party is entitled to judgment. Note, however, that the nonmoving party must have been heard on the issue. The answer “at any time before a verdict is entered” is incorrect because the motion is unavailable once the case is submitted to the jury. The answer “no later than 28 days after the entry of judgment” is incorrect because the motion is unavailable once the case is submitted to the jury. It should be noted that this is the filing timeframe for a renewed motion for judgment as a matter of law (“JNOV”). J0917 Additional Learning

Question 10

A court cannot grant a motion for judgment as a matter of law (“JMOL”) until _______ and the court has found that _______.

A The nonmoving party has received notice of the motion; there is no genuine dispute of material fact

B The nonmoving party has been fully heard; a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue

C The nonmoving party has received notice of the motion; a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue

D The nonmoving party has been fully heard; there is no genuine dispute of material fact

Answer 10

B

A court cannot grant a motion for judgment as a matter of law (“JMOL”) until the nonmoving party has been fully heard and the court has found that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue. Answer choices that include the finding that there is no genuine issue of material fact are incorrect because this is the standard for summary judgment, not JMOL. Answer choices that include the requirement that the nonmoving party has received notice of the motion are incorrect because the nonmoving party must be “fully heard,” not just receive notice of the motion. J0917C Additional Learning

Question 11

A plaintiff may dismiss her case as of right by filing a notice of dismissal:

A At any time prior to a final judgment

B If she agrees to pay costs

C Before the defendant has filed an answer or a motion for summary judgment

Answer 11

C

A plaintiff may dismiss her case as of right by filing a notice of dismissal if the defendant has not filed an answer or a motion for summary judgment. A plaintiff cannot as of right file a notice of dismissal at any time prior to final judgment (i.e., without court approval or stipulation of the parties). The plaintiff is only charged with costs if she refiles the action after dismissal. Furthermore, the plaintiff agreeing to pay costs is not a criterion for determining whether voluntary dismissal by notice is available to the plaintiff. J0913 Additional Learning

Question 12

Under Federal Rule 41(b), _______ are grounds for a court to order an involuntary dismissal against a plaintiff.

A The failure to prosecute the case, to comply with the Federal Rules, or to comply with a court order

B The failure to prosecute the case or to comply with the Federal Rules only

C The failure to prosecute the case or to comply with a court order only

D The failure to comply with the Federal Rules or a court order only

Answer 12

A

A court may, under Federal Rule 41(b), order an involuntary dismissal against a plaintiff on the defendant’s motion or on its own motion for the failure to prosecute the case, to comply with the Federal Rules, or to comply with a court order. An involuntary dismissal is with prejudice, meaning that it operates as adjudication on the merits, unless the court orders otherwise. All of the other answers are incorrect because they are incomplete; because they each are missing an element, they are not the only reasons for involuntary dismissal under Federal Rule 41(b). J0912A Additional Learning

Question 13

The court must find that a reasonable jury would not have a legally sufficient basis to find for the party against whom the judgment is entered in order to enter a judgment on:

A A motion for a judgment as a matter of law or a renewed motion for judgment as a matter of law

B A motion for a judgment as a matter of law only

C A renewed motion for judgment as a matter of law only

Answer 13

A

For BOTH a motion for judgment as a matter of law and a renewed motion for judgment as a matter of law, the court applies the same standard: to enter a judgment on the motion, the court must find that a reasonable jury did not have a legally sufficient basis to find for the party against whom the judgment is entered. Therefore, the answer choices that list a motion for judgment as a matter of law only and a renewed motion for judgment as a matter of law only are incorrect. J0918A Additional Learning

Question 14

A _______ is a verdict in which the jury finds for the plaintiff or defendant, determines the damages or relief to be given, and answers specific questions of fact.

A General verdict with special interrogatories

B Special verdict

C General verdict

Answer 14

A

A general verdict with special interrogatories is a verdict in which the jury finds for the plaintiff or defendant, determines the damages or relief to be given, and answers specific questions of fact. In a general verdict, the jury finds for the plaintiff or defendant and determines damages or relief. It is assumed that all essential issues were found in favor of the prevailing party. In a special verdict, the jury receives a series of questions regarding each ultimate fact, then the court makes legal conclusions based on those facts. J0906 Additional Learning

Question 15

What may a juror bring into the jury room?

A Materials for an experiment demonstrating an issue of fact in the case

B Instructions from the judge that have not been admitted into evidence

C Nothing tangible pertaining to the case

D Her notes

Answer 15

D

Jurors may bring into the jury room papers or exhibits that are in evidence and their notes. Jurors cannot bring in instructions that have not been admitted into evidence. Instructions and pleadings may only be brought in if they are entered into evidence. Engaging in experiments in the jury room is also prohibited, so bringing in materials for an experiment demonstrating an issue of fact is not allowed. J0907 Additional Learning

Question 16

In considering whether a motion to set aside a verdict as excessive was properly denied by a trial court, federal appellate review is limited to:

A Federal law standards for excessive verdicts

B State law standards for excessive verdicts

C Whether the trial court abused its discretion in denying the motion

Answer 16

C

In considering whether a motion to set aside a verdict as excessive was properly denied by a trial court, federal appellate review is limited to whether the trial court abused its discretion in denying the motion. State law standards for excessive verdicts and federal law standards for excessive verdicts are much broader than the limited question of whether the trial court abused its discretion. That is the only consideration for the appellate court when looking at this particular issue. J0904B Additional Learning

Question 17

For the court to grant a motion for judgment as a matter of law (“JMOL”), the court must find that:

A The moving party is entitled to judgment on the face of the pleadings

B A reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue

C There is no genuine dispute of material fact

Answer 17

B

For the court to grant a motion for judgment as a matter of law (“JMOL”), the court must find that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue. That the moving party is entitled to judgment on the fact of the pleadings is the standard for a judgment on the pleadings, not a JMOL. Although very similar, the finding that there is no genuine issue of material fact is the standard for summary judgment, not JMOL. J0917B Additional Learning

Question 18

Federal Rule 41(b) allows a court to order an involuntary dismissal against a plaintiff for failure to:

A Prosecute the case only

B Comply with the Federal Rules only

C Prosecute the case or comply with the Federal Rules or a court order

Answer 18

C

Federal Rule 41(b) allows a court to order an involuntary dismissal against a plaintiff for failure to prosecute the case or comply with the Federal Rules or a court order. An involuntary dismissal is with prejudice, meaning that it operates as adjudication on the merits, unless the court orders otherwise. J0912 Additional Learning

Question 19

In a trial where there is no jury, a judge may enter _______ when there are sufficient facts to resolve an issue against a party and the party against whom judgment is rendered has been fully heard on the issue.

A A summary judgment

B An order for a new trial

C A judgment as a matter of law

Answer 19

C

In a trial where there is no jury, a judge may enter judgment as a matter of law where there are sufficient facts to resolve an issue against a party and the nonmoving party has been fully heard. This is the standard for judgment as a matter of law in nonjury trials. (This is because the judge is acting as a factfinder, and once there are sufficient facts presented to determine the issue, and the party has been heard on the issue, there is no reason for the judge not to issue a judgment if it helps speed the trial.) The standard for a summary judgment is different. Summary judgment is to be granted when there is no genuine dispute of material fact. Under these circumstances, a judge would not enter an order for a new trial. New trials are only ordered under certain circumstances; i.e., because of an error during the trial (usually going to the admissibility of evidence or the propriety of the instructions), because the verdict is against the weight of the evidence (limited to cases where the judge finds the verdict seriously erroneous), because of juror misconduct, or because the verdict is excessive or inadequate. J0920A Additional Learning

Question 20

A jury in a federal civil trial must have:

A 12 jurors

B At least six jurors and not more than 12 jurors

C Six jurors

D 12 jurors with six alternate jurors

Answer 20

B

A jury in a federal civil trial must have at least six jurors and not more than 12 jurors. Six jurors and 12 jurors are incorrect, because there can be a range from six to 12 jurors. There is no provision for alternate jurors; thus, 12 jurors with six alternate jurors is incorrect. As long as there are six or more jurors at the end of the trial, a verdict may be rendered. In federal civil cases, a jury verdict must be unanimous unless the parties agree otherwise. J0905 Additional Learning

Question 21

Traditionally, trial by jury in federal courts was only available in suits at common law (not equity) where the amount in controversy exceeded $20.
The Supreme Court has held that when legal and equitable claims are joined in one action:

A Trial by jury is not available

B The legal claim should be tried first to the jury and then the equitable claim should be decided by the court

C Both the legal and equitable claims should be tried by the jury

Answer 21

B

The Seventh Amendment provides the right to a jury trial in 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. It is incorrect to say that trial by jury is not available or that both the legal and equitable claims should be tried by the jury. There generally is no right to have a jury decide the equitable claim. J0902B Additional Learning

Question 22

At the close of evidence (or sooner at the court’s discretion), a party may file proposed jury instructions.
Objections to giving or failing to give jury instructions must be made before:

A The jury reaches a verdict

B The jury retires to deliberate

C The judge enters the verdict

Answer 22

B

Objections to giving or failing to give instructions must be made before the jury retires to deliberate. If a party fails to object to an instruction or failure to give an instruction before the jury retires to deliberate, any issue is waived on appeal. Therefore, the answer choices providing for objections before the jury reaches a verdict or the judge enters the verdict are incorrect. J0906B Additional Learning

Question 23

Under Federal Rule of Evidence 606(b), a juror can only testify as to matters occurring during jury deliberations in certain instances.
As to which of the following circumstances would a juror be permitted to testify?

A Witnessing the averaging of votes at the beginning of jury deliberations

B Witnessing an argument that occurred in the jury room

C Witnessing a friend of one of the parties to the case pressuring a juror to decide for a particular party

Answer 23

C

Under Federal Rule of Evidence 606(b), a juror can testify on matters occurring during deliberation only if they are testifying on a question of whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was brought to bear on any juror. Therefore, a juror could testify to witnessing a friend of one of the parties to the case pressuring a juror to decide for a particular party. A juror could not testify regarding witnessing an argument that occurred in the jury room, because it does not fall into the exceptions that allow a juror to testify as to deliberations. Even though averaging votes is generally not permitted, it does not fall into the exceptions that allow a juror to testify as to deliberations. Therefore, witnessing the averaging of votes at the beginning of jury deliberations is not something to which a juror may testify. It should be noted that averaging votes at the beginning of deliberations is considered acceptable, though it is not acceptable in determining a verdict. J0910A Additional Learning

Question 24

A motion for a directed verdict is now known as a:

A Renewed motion for judgment as a matter of law

B Motion for judgment as a matter of law

C Motion for summary judgment

Answer 24

B

A motion for a directed verdict is now known as a motion for judgment as a matter of law. The motion may be granted only after the nonmoving party has been fully heard on the matter. To grant the motion, the court must find that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party on that issue. A renewed motion for judgment as a matter of law used to be called a judgment notwithstanding the verdict. The party making the renewed motion must have moved for judgment as a matter of law at some point during the trial. A motion for summary judgment has no prior name. It is available prior to trial. J0917A Additional Learning

Question 25

If a trial judge believes that a jury’s award is so excessive as to “shock the conscience” (or, in a diversity case, where the award exceeds the state standard for excessiveness), a trial judge may order a new trial or offer remittitur.
What is remittitur?

A The plaintiff is required to accept an award that is less than what the jury gave him

B The plaintiff is given the choice of (a) accepting an award that is less than what the jury gave him or (b) submitting the damages decision to arbitration

C The plaintiff is given the choice of (a) accepting an award that is less than what the jury gave him or (b) submitting to a new trial

Answer 25

C

Remittitur is when the plaintiff is given the choice of (a) accepting an award that is less than what the jury gave him or (b) submitting to a new trial. With remittitur, the plaintiff is NOT required to accept an award that is less than what the jury gave him. The plaintiff must be given the choice of accepting a lesser award or submitting to a new trial. The plaintiff has the right to ask for a new trial, and is not required to either (a) accept an award that is less than what the jury gave him or (b) submit the damages decision to arbitration. J0919A Additional Learning

Question 26

Jurors may privately communicate with ____________ regarding the trial.

A Their spouses, absent direction to the contrary

B Counsel representing the parties to the case, absent direction to the contrary

C No one

Answer 26

C

Jurors may privately communicate with no one regarding the trial. They are not permitted to discuss the trial with their spouses under any circumstances. They are also not permitted to discuss the trial with the counsel representing the parties to the case under any circumstances. In fact, private communication between jurors and counsel constitutes serious misconduct which may lead to a new trial. J0907B Additional Learning

Question 27

If a motion for summary judgment is made, and there is a genuine dispute of material fact:

A The matter is eligible for summary judgment if the court decides the disputed material fact in the summary judgment proceeding

B The matter is ineligible for summary judgment

C The matter is eligible for summary judgment

Answer 27

B

Under Federal Rule 56, if there is a genuine dispute of material fact when a motion for summary judgment is made, the matter is ineligible for summary judgment. Summary judgments are only issued where there is no genuine dispute of material fact. If there is a genuinely disputed material fact (meaning a dispute backed by evidence on both sides of the issue), the case must go to trial. It is incorrect to say that the matter is eligible for summary judgment. Because there is a genuine dispute of material fact, it is ineligible. It also is incorrect to say that the matter is eligible for summary judgment if the court decides the disputed material fact in the summary judgment proceeding. The court is not entitled to decide issues of fact in the summary judgment proceeding. J0915 Additional Learning

Question 28

Dismissals by notice are normally without prejudice, unless the plaintiff has previously dismissed any ______ action on the same claim. This is known as _______.

A Federal; the two dismissal rule

B Federal; res judicata

C Federal or state; res judicata

D Federal or state; the two dismissal rule

Answer 28

D

Dismissals by notice are normally without prejudice, unless the plaintiff has previously dismissed any federal or state action on the same claim. This is known as the two dismissal rule. Note that a prior dismissal in state court counts against the plaintiff under the two dismissal rule. Therefore, the answer choices with “federal” instead of “federal or state” are incorrect. This question defines the two dismissal rule, not res judicata, which is triggered by a final judgment on the merits. Res judicata would not apply to a voluntary dismissal, as it is not a “final judgment on the merits.” J0913A Additional Learning

Question 29

In a diversity suit “at common law” in federal court, the parties are _______ when the state court would determine that no right to a jury trial exists.

A Entitled to a jury at the federal court’s discretion

B Entitled to a jury

C Not entitled to a jury

Answer 29

B

In a diversity suit “at common law” in federal court, the parties are entitled to a jury whether or not the state court would determine that no right to a jury trial exists. In other words, the right to a jury trial in federal court is governed entirely by federal law, without regard to whether the case would be tried to a jury in state court. Therefore, it is incorrect to state that the parties are not entitled to a jury. The right is not discretionary, so the answer “entitled to a jury at the federal court’s discretion” is also incorrect. J0903 Additional Learning

Question 30

In order to support a motion for summary judgment, affidavits or declarations submitted must: _______, set forth facts that would be _______, and show the affiant is _______.

A Be made on personal knowledge; relevant to the motion; available to testify

B Be relevant to the motion; admissible in evidence; available to testify

C Be made on personal knowledge; relevant to the motion; competent to testify

D Be made on personal knowledge; admissible in evidence; competent to testify

Answer 30

D

In order to support a motion for summary judgment, affidavits or declarations submitted must be made on personal knowledge, set forth facts that would be admissible in evidence, and show the affiant is competent to testify. All three elements must be satisfied. Therefore, the answer “be made on personal knowledge; relevant to the motion; competent to testify” is incorrect because the requirement that the facts would be admissible in evidence is missing, and there is no specific requirement that they be relevant to the motion. The answer “be relevant to the motion; admissible in evidence; available to testify” is incorrect because the requirement that the affidavit be based on personal knowledge is missing. Additionally, the affidavit need not show that the affiant is available to testify, but rather that the affiant is competent to testify. Finally, there is no specific requirement that the affidavit be relevant to the motion. For the latter two reasons, the answer “be made on personal knowledge; relevant to the motion; available to testify” is incorrect. J0916A Additional Learning

Question 31

A new trial may be granted when the verdict is:

A Excessive, inadequate, or such that a reasonable jury would not have a legally sufficient basis to come to that verdict

B Against the weight of the evidence only

C Excessive, inadequate, or against the weight of the evidence

D Excessive or inadequate only

Answer 31

C

A new trial may be granted when the verdict is excessive, inadequate, or against the weight of the evidence. Note that a new trial also may be granted because of an error during the trial (usually going to the admissibility of evidence or the propriety of the instructions) or because of jury misconduct. Answers that state that a verdict that is excessive or inadequate only or against the weight of the evidence only are incorrect because they each leave out a reason why a new trial may be ordered due to a problem with the verdict. The answer that states that a new trial may be granted when a verdict is excessive, inadequate, or such that a reasonable jury would not have a legally sufficient basis to come to that verdict is incorrect because the reasonable jury standard is similar to the standard for judgment as a matter of law, not the standard for granting a new trial. J0919 Additional Learning

Question 32

When a jury delivers a verdict that is clearly based on a compromise by the jurors:

A The verdict must be set aside and a new trial must be ordered

B The verdict may be set aside and either the jury will be asked to reconsider the verdict or a new trial will be ordered

C The verdict is valid

Answer 32

B

When a jury delivers a verdict that is clearly based on a compromise by the jurors, the verdict may be set aside and either the jury will be asked to reconsider the verdict or a new trial will be ordered. This is true of any verdict that shows on its face that the jurors failed to follow instructions. It is not the case that a compromise verdict is valid. It is not true that the verdict must be set aside and a new trial must be ordered. Correctable errors must be raised by the aggrieved party or they are waived. J0908 Additional Learning

Question 33

To receive a jury trial, a party generally must:

A File a written demand and serve it on any opposing parties within 28 days after the service of the last pleading directed to the jury-triable fact issue

B File a written demand and serve it on any opposing parties within 14 days after the service of the last pleading directed to the jury-triable issue

C File a written demand and serve it on all the parties within 28 days after the service of the last pleading directed to the jury-triable issue

D 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

Answer 33

D

Under Rule 38, to receive a jury trial a party must 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. Filing a written demand within 28 days after the service of the last pleading directed to the jury-triable issue may be too late. The applicable period is 14 days. Filing a written demand on any opposing parties may be insufficient where multiple parties are involved. All parties must be served. J0901 Additional Learning

Question 34

The “two dismissal rule” provides that if a plaintiff has voluntarily dismissed an action in _______ court on the same claim previously, a subsequent dismissal on that claim is _______.

A Federal; with prejudice

B Federal; without prejudice

C Federal or state; without prejudice

D Federal or state; with prejudice

Answer 34

D

The “two dismissal rule” provides that if a plaintiff has voluntarily dismissed an action in federal or state court on the same claim previously, a subsequent dismissal on that claim is with prejudice. Note that prior dismissal in state court counts against the plaintiff under the two dismissal rule. Therefore, the answer choices with “federal” instead of “federal or state” are incorrect. Also incorrect are the answer choices stating that the dismissal is without prejudice. J0913B Additional Learning

Question 35

Affidavits or declarations that are submitted in support of a motion for summary judgment must:

A Be made on personal knowledge, set forth facts that would be admissible in evidence, and show the affiant is competent to testify

B Be made on personal knowledge, set forth facts that would be admissible in evidence, and show the affiant is available to testify

C Be made on personal knowledge and show the affiant is competent to testify only

D Be made on personal knowledge and show the affiant is available to testify only

Answer 35

A

Affidavits or declarations that are submitted in support of a motion for summary judgment must be made on personal knowledge, set forth facts that would be admissible in evidence, and show the affiant is competent to testify. The answer “be made on personal knowledge and show the affiant is competent to testify only” is incorrect because it is incomplete; the affidavits must set forth facts that would be admissible in evidence. The choices providing that the affidavits must show the affiant is available to testify are incorrect because the affidavit need not show that the affiant is available to testify, but rather that the affiant is competent to testify. J0916 Additional Learning

Question 36

In a diversity suit “at common law” in federal court, the court _______ a jury trial _______ the state court would determine that no right to a jury trial exists.

A Must permit; even though

B Must deny; if

C In its discretion, may grant or deny; even though

Answer 36

A

In a diversity suit “at common law” in federal court, the court must permit a jury trial even though the state court would determine that no right to a jury trial exists. In other words, the right to a jury trial in federal court is governed entirely by federal law, without regard to whether the case would be tried to a jury in state court. Therefore, it is incorrect to state that the court must deny a jury trial if the state court would determine that no right to a jury trial exists. The right is not discretionary, so the answer “in its discretion, may grant or deny” a jury trial even though the state court would determine that no right to a jury trial exists is also incorrect. J0903A Additional Learning