civil procedure commonly tested concepts Flashcards
“Federal Rule of Civil Procedure 56(a) allows a summary judgment motion to be granted only if there is:
The moving party must produce evidence to show what?
then the non-moving party must show?
The motion is looked at in the light most favorable to the __________ party
no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.”
Note that “a motion for summary judgment may be supported by depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.”
• The moving party must produce evidence to show there is no genuine issue of material fact.
The burden then shifts to the nonmoving party, which must then produce evidence to show that there is a genuine issue of material fact for trial.
The motion is looked at in the light most favorable to the nonmoving party.
Preliminary injunctions: A preliminary injunction is equitable relief with the objective of preserving the status quo. If it is granted, the matter must be tried within six months unless the parties stipulate or good cause is shown. The court must give notice to the adverse party. There are four factors to consider (mnemonic=HELP):
(1) harm: the significance of the threat of irreparable harm to the plaintiff if the injunction is not granted, (2) evaluation of injuries: the balance between this harm and the injury that granting the injunction would inflict on the defendant, (3) likelihood of prevailing: the probability that the plaintiff will succeed on the merits, and (4) the public interest.
work product
Work product is any material prepared in anticipation of litigation. (If it is not prepared in anticipation of litigation, it is not work product!) Written statements given by witnesses might be discoverable even if they are considered work product if the other party can show substantial need and undue hardship. However, an attorney’s mental impressions are never discoverable.
final judgments are generally appealable and non final judgments are generally not appealable. However, the MEE tends to test the exceptions!
• Exceptions include when there are
final orders in cases involving multiple claims and multiple parties and some are still pending—the other parties may be able to appeal their orders; orders involving injunctions, garnishments, and other temporary remedies; interlocutory orders by leave; and orders constituting a final judgment on collateral matters
An attorney’s signature on a pleading “certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) [the pleading] is not being presented for an improper purpose . . .;
(2) the . . . legal contentions are warranted by existing law or by a nonfrivolous argument for [changing existing law];
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
what are some examples of non-monetary sanctions a court could issue
Examples of nonmonetary sanctions would be “striking the offending paper;
issuing an admonition (warning), reprimand, or censure;
requiring participation in seminars or other educational programs; . . . [or] referring the matter to disciplinary authorities
T or F except for duty not to compete with partnership, all of partner’s fiduciary duties continue to apply during “winding up of the partnership business
True
what law must a federal district court sitting in diversity apply?
a federal district court sitting in diversity must apply the choice of law approach prevailing in the state in which it sits.
