Civil Procedure (MBE)

Question 1

Personal Jurisdiction Analysis

Answer 1

1) PJ must fall within a STATE STATUTE (i.e., long arm statute), and
2) PJ must satisfy the CONSTITUTION.

Question 2

Personal Jurisdiction: Constitutional Analysis

Answer 2

Factors of constitutionality:

1) Contact,
2) Relatedness, and
3) Fairness

Question 3

Personal Jurisdiction: Constitutional Analysis - Contact

Answer 3

There must be PURPOSEFUL AVAILMENT and FORSEEABILITY.

Purposeful availment means voluntary act targeting the forum, such as marketing a product, using roads, establishing a tortious email, etc.

Question 4

Personal Jurisdiction: Constitutional Analysis - Relatedness

Answer 4

Whether the plaintiff’s claim ARISES FROM OR RELATES TO Defendant’s contact with the forum.

Question 5

Personal Jurisdiction: General Jurisdiction (Persons)

Answer 5

General jurisdiction attaches either: (i) defendant be domiciled (AT HOME) in the forum OR (ii) if served with process while in the state

Question 6

Personal Jurisdiction: General Jurisdiction (Corproations)

Answer 6

Corporations are domiciled either: (i) state of incorporation, or (ii) principal place of business

Question 7

Personal Jurisdiction: Constitutional Analysis - Fairness (Personal Jurisdiction)

Answer 7

Fairness is only addressed in SPECIFIC PERSONAL JURISDICTION cases (not asses where general jurisdiction applies). Courts will look at the following factors:

1) Burden on the defendant and witnesses,
2) state’ interest,
3) plaintiff’s interest

Question 8

Notice/Service of Process Documents

Answer 8

Process consists of the following two documents: 1) SUMMONS and 2) COMPLAINT

Question 9

Notice/Service of Process: Who Can Serve Process?

Answer 9

Any person at least 18 years old who is NOT a party to the action.

Question 10

Notice/Service of Process: When Must Process Be Served?

Answer 10

Service must take place WITHIN 90 DAYS of filing of the complaint

Question 11

Notice/Service of Process: Options for Service on Individual (Within United States)

Answer 11

1) Personal service - can be given to the defendant personally ANYWHERE
2) Substituted service - can be done (i) at defendant’s ABODE, (ii) with someone of SUITABLE AGE AND DISCRETION, and (iii) that person RESIDES there
3) Service on agent, or
4) state law method (where service is made AND where federal court sits)

Question 12

Notice/Service of Process: Service on Business Organizations

Answer 12

A business or organizations may be served by:

1) delivering to an OFFICER or MANAGING AGENT , or
2) Using a method permitted by the state (where federal court sits OR where service is to be made)

Question 13

Notice/Service of Process: Service on Minor or Incompetent Person

Answer 13

Must ONLY be by a method permitted by the STATE IN WHICH THE SERVICE IS TO BE MADE.

Question 14

Notice/Service of Process: Service on a Party in a Foreign Country

Answer 14

Any method by INTERNATIONAL AGREEMENT or, if no such agreement, one of the following methods:

1) as directed by American court,
2) method allowed by foreign country’s law,
3) method directed by foreign official,
4) personal service in the foreign country, or
5) mail sent by the clerk of the American court.

Question 15

Notice/Service of Process: Waiver of Service of Process

Answer 15

A defendant (individuals or entities) can waive service of process if the plaintiff mails the defendant a NOTICE and REQUEST to waive service. If defendant executes and mails waiver form to the plaintiff within 30 days, she waives service of process

Question 16

Notice/Service of Process: Waiver of Service of Process - Effect of Waiver on Defenses

Answer 16

A waiver of service of process DOES NOT AFFECT ANY DEFENSES

Question 17

Notice/Service of Process: Waiver of Service of Process - When is Waive Effective

Answer 17

The waiver becomes effective when the plaintiff FILES THE WAIVER IN COURT.

Question 18

Notice/Service of Process: Waiver of Service of Process - Penalty for Failing to Waive Service

Answer 18

If defendant did not have good cause to return a waiver form, he MUST PAY COSTS OF SERVICE.

Question 19

Notice/Service of Process: Proving Service of Process

Answer 19

Process server FILES A REPORT with the court detailing how service was made.

Question 20

Notice/Service of Process: Immunity from Service of Process

Answer 20

If defendant appears as a party, witness, or attorney in State X for a DIFFERENT civil case, they are immune from being served with process for a civil case in federal court in State X.

Question 21

Subject Matter Jurisdiction: State Court Jurisdiction + Exception

Answer 21

State courts have GENERAL SUBJECT MATTER JURISDICTION, meaning they generally hear ANY CASE

There are a few federal cases that state courts cannot hear, such as: bankruptcy, patent infringement, antitrust and some federal securities claims.

Question 22

Subject Matter Jurisdiction: Federal Courts + Waiver

Answer 22

Two main bases for federal SMJ:

1) Federal Questions, and
2) Diversity of Citizenship

A lack of SMJ CANNOT BE WAIVED.

Question 23

Subject Matter Jurisdiction: Federal Courts - Diversity of Citizenship Requirements (Residents of States and Countries)

Answer 23

There are two requirements for diversity of citizenship cases:

1) The case is between citizens of different US states OR between a citizens of a US state and a citizen of a foreign country, and
2) Amount in controversy EXCEEEDS $75K

Question 24

Subject Matter Jurisdiction: Federal Courts - Diversity of Citizenship Requirement - Which Parties Must Be From Different States? + Foreign Citizen v. Foreign Citizen

Answer 24

Diversity of citizenship jurisdiction DOES NOT EXIST if ANY plaintiff is a citizen of the same state as ANY defendant WHEN THE CASE IS FILED.

Note: a case in federal court with a foreign citizen suing another foreign citizen WOULD NOT MEET diversity requirements. A case like this must be filed in STATE COURT.

Question 25

Subject Matter Jurisdiction: Domicile Requirements of Natural Person

Answer 25

Two requirements to establish domicile:

1) PHYSICAL PRESENCE in the new domicile, and
2) the INTENT to make that place your home for the indefinite future.

Question 26

Subject Matter Jurisdiction: Domicile Requirements of Corporations

Answer 26

A corporation is a citizen of:

1) ANY state which it is incorporated, and
2) ONE state or country in which it has its PRINCIPAL PLACE OF BUSINESS (the state from which the corporation’s “nerve center” is located, e.g., corporate headquarter)

Question 27

Subject Matter Jurisdiction: Domicile Requirements of Unincorporated Association (LLC, Partnership, Etc.)

Answer 27

An unincorporated association takes the citizenship of ALL OF ITS MEMBERS, and if a limited partnership, this includes the GENERAL and LIMITED PARTNERS.

Question 28

Subject Matter Jurisdiction: Domicile Requirements of Decedents, Minors, and Incompetents

Answer 28

While decedents, minors, and incompetents are sued through there representative, you USE THE CITIZENSHIP OF THE DECEDENT, MINOR, or INCOMPETENT.

Question 29

Subject Matter Jurisdiction: Domicile Requirements of Class Actions

Answer 29

Use the citizenship of the NAMED REPRESENTATIVES of the class.

Question 30

Subject Matter Jurisdiction: Amount in Controversy - What Counts as Controversy

Answer 30

Whatever the plaintiff claims in GOOD FAITH is okay, UNLESS it is clear to a legal certainty he cannot recover more than $75,000.

Question 31

Subject Matter Jurisdiction: Amount in Controversy - Aggregation of Claims + Relation of Claims

Answer 31

Any SINGLE PLAINTIFF MAY aggregate ALL CLAIMS against any SINGLE DEFENDANT.

The claims NEED NOT BE RELATED in any way.

MULTIPLE PLAINTIFFS CANNOT DO THIS.

Question 32

Subject Matter Jurisdiction: Amount in Controversy - Joint Claims

Answer 32

For joint claims, you use the TOTAL VALUE of the claim, the number of parties is irrelevant.

Question 33

Subject Matter Jurisdiction: Amount in Controversy - Equitable Relief

Answer 33

When suing for equitable relief (e.g., specific performance, rescission, injunction) the courts will analyze:

1) the PLAINTIFF’S VIEWPOINT (i.e., if granted, does relief requested exceed $75k), OR
2) the DEFENDANT’S VIEWPOINT (i.e., will the relief cost the defendant more than $75k).

Question 34

Subject Matter Jurisdiction: Amount in Controversy - Exclusions from Diversity Jursidiction

Answer 34

Federal courts will decline actions for: (i) DIVORCE, (ii) ALIMONY, (iii) CHILD CUSTODY, and (iv) PROBATE.

Question 35

Subject Matter Jurisdiction: Amount in Controversy - Collusion

Answer 35

If a party attempts to create diversity by a SHAM TRANSACTION (e.g., assigning a claim to exceed $75k), the court will IGNORE the transaction and declare that diversity does not exist.

Question 36

Subject Matter Jurisdiction: Federal Question Cases - Well Pleaded Complaint Rule

Answer 36

To be considered a federal question, the plaintiff’s CLAIM ITSELF must ARISE UNDER FEDERAL LAW. This analysis DOES NOT look at any defenses defendant may raise.

Question 37

Subject Matter Jurisdiction: Removal + Remand

Answer 37

This gives defendant an opportunity to “remove” the case from a state court to a federal court.

If removal was IMPROPER, the federal court may REMAND the case to state court.

Question 38

Subject Matter Jurisdiction: Removal - When Is Removal Appropriate

Answer 38

An action filed in state court MAY be removed by a defendant to federal court IF the case could have been filed in federal court, meaning federal question or diversity jurisdiction applies.

Question 39

Subject Matter Jurisdiction: Removal - How Is A Case Removed

Answer 39

Defendant files “notice of removal” in FEDERAL COURT, then serves a copy of “notice of removal” on adverse parties and files it in STATE COURT.

Question 40

Subject Matter Jurisdiction: Removal - Timing

Answer 40

Defendant must remove NO LATER THAN 30 DAYS after service of paper showing case is removable (i.e., service of process).

Question 41

Subject Matter Jurisdiction: Removal - Who Must Join in Removal + Later Served Defendants

Answer 41

ALL DEFENDANTS must join in removal.

If defendants are served at different times, earlier served defendants may join in the timely removal of a later served defendant.

Question 42

Subject Matter Jurisdiction: Removal - By Plaintiff

Answer 42

Plaintiff MAY NEVER REMOVE, even if defendant files counter claim

Question 43

Subject Matter Jurisdiction: Removal - What Cases Can Be Removed + Exceptions

Answer 43

Defendant can remove a case that meets the requirements for diversity of citizenship and federal question

Exceptions based on Diversity of Citizenship:

1) The case should NOT be removed if ANY DEFENDANT is a CITIZEN of the forum state (the “in-state defendant rule”), and
2) the case should not be removed MORE THAN ONE YEAR AFTER THE CASE WAS FILED IN STATE COURT unless Plaintiff acted in bad faith.

The one-year limitation works together with 30 day removal period, since case can become removable LATER (e.g., plaintiff voluntarily dismisses claim against non-diverse defendant)

Question 44

Subject Matter Jurisdiction: Removal - Venue

Answer 44

The defendant removes to the federal court in the jurisdiction where the state court was filed.

Question 45

Subject Matter Jurisdiction: Remand - Timing

Answer 45

If motion to remand is based on a reason OTHER THAN lack of SMJ (no time limit to raise lack of SMJ), it must occur within 30 DAYS after defendant files Notice of Removal

Question 46

How Supplemental Jurisdiction Operates Generally

Answer 46

Is a form of SMJ, but works to get ADDITIONAL CLAIMS into a federal case by different parties, even though the claims individually cannot invoke diversity or federal question.

Remember: It is not a matter of simply aggregating claims (one plaintiff is allowed to aggregate against one defendant under diversity), here we are looking for a claim AGAINST A DIFFERENT PARTY.

Question 47

Supplemental Jurisdiction: Analysis

Answer 47

Must have a case ALREADY in federal court. Then,

1) Is there federal question or diversity for additional claim? (If yes, then it can be joined.)
2) Check for Supplemental Jurisdiction (Common Nucleus of Operative Facts Test)

Question 48

Supplemental Jurisdiction: Common Nucleus Test

Answer 48

The claim must share a “common nucleus of operative fact” if it stems from the same TRANSACTION OR OCCURRENCE.

Question 49

Supplemental Jurisdiction: Limitations on the Use of Supplemental Jurisdiction + Exception

Answer 49

In DIVERSITY CASES, claims BY PLAINTIFF CANNOT INVOKE SUPPLEMENTAL JURISDICTION.

Exception: When there are MULTIPLE PLAINTIFFS and the claim by one of them DOES NOT MEET the amount in controversy requirement.

Question 50

Supplemental Jurisdiction: Courts Discretion + Common Example

Answer 50

Even if the supplemental jurisdiction requirements are met, a court has discretion to decline.

Common Example: When the claim on which federal SMJ is based is DISMISSED EARLY ON IN THE CASE.

Question 51

Application of Law in Federal Court: The Erie Doctrine Analysis

Answer 51

Step 1: Is there a federal law directly on point? If yes, use that (Supremacy Clause in effect).

Step 2: If not, apply STATE LAW if it is a pre-determined SUBSTANTIVE ISSUE (e.g., conflict of law, elements of claim/defense, SOL),

Step 3: If not pre-determined, Court should DETERMINE WHETHER ISSUE IS SUBSTANTIVE or PROCEDURAL (i.e., outcome determinative test, balance interests, avoid forum shopping)

Question 52

Application of Law in Federal Court: The Erie Doctrine - Clearly Substantive Issues for State Law

Answer 52

1) Conflict of law,
2) Elements of claims or defense,
3) Statutes of Limitations,
4) Tolling Statutes of Limitation, and
5) Standard of granting a new trial due to inadequate or excessive jury award.

Question 53

Application of Law in Federal Court: The Erie Doctrine - Courts Analysis of Determining Whether an Issue is Substantive of Procedural

Answer 53

The court will analyze the following factors to determine whether an issue is substantive or procedural:
1) Outcome determinative - would applying or ignoring state rule impact the outcome of the case? If so, probably substantive

2) Balance of interests - which interest is greater, federal or state?
3) Avoid forum shopping - will ignoring state law cause parties to flock to federal court? If yes, probably state law.

Question 54

Application of Law in Federal Court: The Erie Doctrine - Federal Common Law

Answer 54

Areas such as INTERNATIONAL RELATIONS, ADMIRALTY, and DISPUTES BETWEEN STATES will be considered federal common law and apply.

Question 55

Venue: Plaintiff’s Choices for Venue + Residential Nuance

Answer 55

The plaintiff may lay venue in ANY DISTRICT where:

1) ALL DEFENDANTS RESIDE (i.e., domiciled), or
2) A substantial part of the CLAIM arose or a substantial part of the PROPERTY involved in the lawsuit is located (can be multiple places).

Residential Nuance: Venue is proper in ANY DISTRICT where defendant resides IF ALL DEFENDANTS RESIDE WITHIN THE SAME STATE.

Question 56

Venue: Plaintiff’s Residence Weight

Answer 56

It DOES NOT MATTER where the plaintiff resides for determining proper venue.

Question 57

Venue: Foreign Defendants

Answer 57

If defendant resides OUTSIDE the US, venue is proper in ANY FEDERAL DISTRICT COURT, but if another defendant resides in the US, venue must be proper as to her.

Question 58

Venue: Limitations on Transfering

Answer 58

Transfer goes from one trial court in a JUDICIAL SYSTEM to another trial court IN THE SAME JUDICIAL SYSTEM (e.g., federal to federal, or state to state)

Question 59

Venue: Transfer - Personal Jurisdiction + Waiver + Waiver Exception

Answer 59

The transferee (court which case is sent) MUST be proper and have PERSONAL JURISDICTION over the defendant. This CANNOT BE WAIVED by defendant.

However, a court MAY transfer to any district if: (i) ALL PARTIES CONSENT, and (ii) the court FINDS CAUSE for the transfer.

Question 60

Venue: Transfer from a Proper Venue Statute + Burden

Answer 60

If the original district is PROPER, that court may order a transfer based on CONVENIENCE of the parties and witnesses IN THE INTEREST OF JUSTICE.

The burden is on the PERSON SEEKING TRANSFER to convince the court to transfer.

Question 61

Venue: Transfer from Proper Venue Statute - Factors

Answer 61

The court will consider PUBLIC and PRIVATE factors, such as burden of community with jury service and local controversy (public) OR where defendants and evidence are found (private)

Question 62

Venue: Transfer from Proper Venue Statute - Effect on Choice of Law + Exception

Answer 62

When a DIVERSITY CASE is filed in a proper venue, but the court orders transfer, the TRANSFERREE COURT MUST APPLY CHOICE OF LAW RULES OF TRANSFEROR COURT.

However, in forum selection clauses, the TRANSFEREE COURT will apply its own choice of law rules.

Question 63

Venue: Transfer from Proper Venue - Forum Selection Clause

Answer 63

A provision in which the parties agree that a dispute between them will be litigated in a particular place.

Question 64

Venue: Transfer from Improper Venue Statute + Effect on Choice of Law + Adequacy

Answer 64

If the district court is IMPROPER, the court MAY transfer in the interest of justice or dismiss.

The TRANSFERREE LAW applies.

Other court MUST BE ADEQUATE (the forum will be deemed adequate unless NO REMEDY WHATSOEVER can be achieved by the plaintiff)

Question 65

Venue: Forum Non Conveniens + Effect

Answer 65

Forum non conveniens applies when there is ANOTHER COURT that is the CENTER OF GRAVITY for the case, BUT COURT CANNOT TRANSFER because it is in a DIFFERENT JUDICIAL SYSTEM.

The effect of this is the case will STAY or be DISMISSED.

Question 66

Venue: Forum Non Conveniens - Factors

Answer 66

The FNC decision is based on the SAME PUBLIC AND PRIVATE FACTORS as a proper venue transferring.

Question 67

Pleadings: Complaint - Contents

Answer 67

The complaint MUST contain:

1) A statement of the grounds of SUBJECT MATTER JURISDICTION,
2) SHORT AND PLAIN STATEMENT OF THE CLAIM, and
3) DEMAND FOR RELIEF.

Question 68

Pleadings: Complaint - Details Required + Special Pleading Requirements

Answer 68

The plaintiff must plead SUFFICIENT FACTS TO SUPPORT A PLAUSIBLE CLAIM.

The following claims must be pleaded with PARTICULARITY and SPECIFICITY: (i) fraud, (ii) mistake, and (iii) special damages

Question 69

Pleadings: Defendant’s Response to Complaint

Answer 69

Defendant must respond by either: (i) MOTION, or (ii) ANSWER within 21 DAYS after being served with process, OR 60 DAYS if defendant mailed waiver response

Question 70

Pleadings: Defendant’s Response to Complaint - Waivable Defenses Under Rule 12(b)

Answer 70

The following Rule 12(b) are WAIVED IF NOT PUT IN FIRST RESPONSE (3PV):

1) Lack of Personal Jurisdiction,
2) Improper Venue,
3) Improper Process (issue with the papers),
4) Improper Service of Process

Question 71

Pleadings: Defendant’s Response to Complaint - Defenses Under Rule 12(b) That Can Be Raised After First Response

Answer 71

The following defenses under Rule 12(b) are NOT WAIVED even if not included in the first response (can be AS LATE AS TRIAL, but not later):

1) Failure to State a Claim, and
2) Failure to Join an Indispensable Party.

Question 72

Pleadings: Defendant’s Response to Complaint - When Can Lack of Subject Matter Jurisdiction Be Raised

Answer 72

A lack of subject matter jurisdiction MAY BE RAISED ANY TIME, even ON APPEAL.

Question 73

Pleadings: Defendant’s Response to Complaint - What Happens Procedurally If Motion Is Denied

Answer 73

Defendant then must ANSWER NO LATER THAN 14 DAYS after notice of denial

Question 74

Pleadings: Answer - Contents

Answer 74

The defendant must respond to the allegations in complaint, as such it may either: (i) ADMIT some or all allegations, (ii) DENY some or all allegations, or (iii) state that she has INSUFFICIENT KNOWLEDGE to admit or deny some or all of the allegations (but CANNOT do this if the answer to the allegation is in defendant’s control)

Question 75

Pleadings: Answer - Failure to Deny + Exception

Answer 75

The failure to deny an allegation in the complaint IS AN ADMISSION, EXCEPT regarding the amount of damages.

Question 76

Pleadings: Answer - Affirmative Defenses

Answer 76

Affirmative defenses are an opportunity for defendant to bring new facts into the case, these defenses include: (i) statute of limitations, (ii) statute of frauds, (iii) self defense, (iv) res judicata, (v) or ALL RULE 12(B) DEFENSES, if not raised in the first response.

Question 77

Pleadings: Amended Pleadings - Right to Amend for Plaintiff

Answer 77

The plaintiff has a right to amend her complaint ONCE no later than 21 days after defendant serves his RULE 12 RESPONSE.

Question 78

Pleadings: Amended Pleadings - Right to Amend for Defendant + Omitted Rule 12(b) Defenses

Answer 78

Defendant has a right to amend his answer ONCE, no later than 21 DAYS after serving it.

If defendant’s first response was an ANSWER that omitted any Rule 12(b) waivable defenses (i.e., improper venue, improper process, personal jurisdiction, or improper service of process), he MAY INCLUDE WAIVABLE DEFENSES in the amended answer.

Question 79

Pleadings: Amended Pleadings - Right to Amend After Time Expired + Factors

Answer 79

After the period to amend as of right has expired, the amending party must seek leave of court (or consent of opposing party) and court determines JUSTICE SO REQUIRES

Courts will look at factors such as length of delay, prejudice to other party, and futility of amendment.

Question 80

Pleadings: Amended Pleadings - Failure to Object to Variance

Answer 80

Variance is when the evidence at trial DOES NOT MATCH what was pleaded, and if the other party FAILS to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence.

Question 81

Pleadings: Amended Pleadings - Relation Back + Requirements

Answer 81

An amended pleading may RELATE BACK if the pleading concerns the SAME CONDUCT, TRANSACTION, OR OCCURENCE as the original pleading. Then, the amended pleading will be treated as though it was filed when the original was filed (AVOID STATUTE OF LIMITATIONS ISSUE)

The amendment will relate back if:

1) the amendment concerns the SAME CONDUCT, TRANSACTION, OR OCCURENCE as the original;
2) the DEFENDANT HAD KNOWLEDGE of the case such that she will be able to avoid prejudice; and
3) the DEFENDANT KNEW, BUT FOR A MISTAKE, HE WOULD HAEV BEEN NAMED ORIGINALLY.

Basically, this only applies when plaintiff SUED THE WRONG DEFENDANT, but the right defendant knew about it.

Question 82

Pleadings: Supplemental Pleadings

Answer 82

These set forth things that HAPPEN AFTER the pleadings were filed, there IS NO RIGHT to file a supplemental pleading, it is within the discretion of the court.

Question 83

Pleadings: Rule 11 Signature Requirement

Answer 83

When the lawyer signs documents, he certifies that TO THE BEST OF HIS KNOWLEDGE AND BELIEF, after reasonable inquiry: (i) the paper is NOT FOR AN IMPROPER PURPOSE, (ii) legal contentions are WARRANTED BY LAW, and (iii) the factual contentions and denials have EVIDENTIARY SUPPORT.

Question 84

Pleadings: Rule 11 Signature Requirement - Sanctions + Who May Raise Violations

Answer 84

Sanctions are used to DETER a repeat of conduct, and may be imposed against the lawyer, party, or firm.

The parties OR court (by order to show cause) may raise Rule 11 violations.

Question 85

Pleadings: Rule 11 Signature Requirement - Safe Harbor

Answer 85

If a party violates Rule 11, the opposing party CANNOT immediately file a motion for sanctions, rather the violating party has 21 DAYS TO FIX the problem and avoid sanctions.

Question 86

Joinder: Claim Joinder by Plaintiff

Answer 86

Plaintiff MAY JOIN ANY additional claim he has against that adverse party - even if the additional claim is UNRELATED to the original claim, so long as there is SOME SUBJECT MATTER JURISDICTION OVER THE CLAIM.

Question 87

Joinder: Proper Plaintiffs and Defendants

Answer 87

Multiple plaintiffs and defendants may join a case IF: (i) the claims arise from the SAME TRANSACTION OR OCCURENCE, and (ii) raise at LEAST ONE COMMON QUESTION OF LAW OR FACT.

Question 88

Joinder: Necessary and Indispensable Party Analysis

Answer 88

To join in the case, the court must determine whether the absente party is:

1) NECESSARY,
2) If necessary, CAN THE ABSENTEE BE JOINED?,
3) If the absentee can’t be joined, can the case proceed anyway?

Question 89

Joinder: Necessary and Indispensable Party - Who Is A Necessary Party?

Answer 89

A necessary party means that any of the following situations exist:

1) Without absentee, the court CANNOT ACCORD COMPLETE RELIEF AMONG THE EXISTING PARTIES, or
* **2) the ABSENTEE’S INTEREST MAY BE HARMED, or
3) the absentee claims an interest that SUBJECTS A PARTY (usually the defendant) TO A RISK OF MULTIPLE OBLIGATIONS.

Question 90

Joinder: Necessary and Indispensable Party - Joint Tortfeasors

Answer 90

Joint tortfeasors are NEVER NECESSARY.

Question 91

Joinder: Necessary and Indispensable Party - Can The Absentee Be Joined (Feasibility)?

Answer 91

It is feasible to join the absentee if:

1) there is PERSONAL JURISDICTION over the absentee, and
2) There will be federal SUBJECT MATTER JURISDICTION OVER THE CLAIM by or against the absentee

If feasible, absentee will join the case.

Question 92

Joinder: Necessary and Indispensable Party -What Happens If Absentee Cannot Be Joined

Answer 92

Court must determine whether to PROCEED OR DISMISS the case. The court will look at the following factors:

1) Is there an ALTERNATIVE FORUM available,
2) What is the ACTUAL LIKELIHOOD OF HARM to the absentee, and
3) Can the court shape RELIEF TO AVOID THAT HARM to the absentee.

Question 93

Joinder: Claim Joinder By Defendant - Types of Counter Claims

Answer 93

1) Compulsory Counterclaim

2) Permissive Counterclaim

Question 94

Joinder: Claim Joinder By Defendant - Compulsory Counterclaim

Answer 94

Arises from the SAME TRANSACTION OR OCCURENCE as plaintiff’s claim, this MUST BE FILED or the claim is waived (use it or lose it)

Question 95

Joinder: Claim Joinder By Defendant - Permissive Counterclaims

Answer 95

A permissive counterclaim DOES NOT ARISE from same transaction or occurrence as plaintiff’s claim. Counterclaimant is NOT REQUIRED to file it in the same case and is NOT WAIVED if omitted from answer.

Question 96

Joinder: Claim Joinder By Defendant - Subject Matter Jurisdiction

Answer 96

As always, THERE MUST BE SUBJECT MATTER JURISDICTION over the COUNTERCLAIM (always ask whether FQ or SMJ can be invoked, and if not, whether SUPP JUR can)

Question 97

Joinder: Crossclaim

Answer 97

Claims AGAINST A CO-PARTY that ARISES FROM SAME TRANSACTION OR OCCURENCE in the underlying case. These are NEVER COMPULSORY.

Question 98

Impleader Claims + Is It Compulsory?

Answer 98

Where a defending party brings in a new party to shift liability that the defendant would owe to the plaintiff.

Impleader claims are PERMISSIVE, meaning defendant need not bring it in the current case.

Question 99

Impleader: Indemnity v. Contribution

Answer 99

Indemnity SHIFTS LIABILITY COMPLETELY

Contribution SHIFT LIABILITY PRO-RATA

Question 100

Impleader: Process for Impleading Third Party Defendant

Answer 100

To implead, the defendant must:

1) FILE a third party complaint naming the Third Party Defendant, and
2) have that complaint FORMALLY SERVED on the Third Party Defendant

Question 101

Impleader: Asserting Claims After Impleading

Answer 101

After the Third Party Defendant joins, the PLAINTIFF and THIRD PARTY DEFENDANT may assert claims against each other SO LONG AS EACH CLAIM SEPARATELY MEETS SUBJECT MATTER JURISDICTION.

Question 102

Intervention

Answer 102

A nonparty uses intervention to BRING HERSELF into the case, either as plaintiff or defendant.

Question 103

Intervention: Timing

Answer 103

Intervention must be TIMELY.

Question 104

Intervention: Intervention of Right

Answer 104

If the absentee’s interest may be harmed if she is NOT JOINED, and that interest is not adequately represented by the current parties, intervention is “of right.” (same test as necessary party for impleader)

Question 105

Intervention: Permissive Intervention

Answer 105

If the absentee’s claim or defense and the pending case have AT LEAST ONE COMMON QUESTION OF LAW OR FACT, intervention would be PERMISSIVE and DISCRETIONARY WITH THE COURT.

Question 106

Intervention: Subject Matter Jurisdiction + Remember Intervenor Plaintiff

Answer 106

As with all claims, the claim by or against the intervenor MUST INVOKE SMJ OR FQ, and if not, it must come in on SUPPLEMENTAL JURISDICTION.

Remember: Regarding supplemental jurisdiction for intervenor plaintiffs, they would be considered “plaintiffs” for the exception and cannot bring in a claim based on supplemental jurisdiction.

Question 107

Class Actions

Answer 107

A case in which representatives sue on behalf of a group

Question 108

Class Actions: Requirements

Answer 108

To qualify for a class action, the following FOUR requirements must be met:

1) NUMEROSITY - too many class members for practicable joinder (no magical number)
2) COMMONALITY - issue in common
3) TYPICALITY - class rep’s claims are typical of the claims of the class
4) REPRESENTATIVE ADQUATE - the class rep will fairly and adequately represent the class.

Question 109

Class Actions: Types of Class Action

Answer 109

1) PREJUDICE - where class treatment is necessary to prevent harm or prejudice (very rare) (e.g., claims to a limited fund of money)
2) INJUNCTIVE OR DECLARATORY RELIEF - defendant treated class members alike, generally cannot seek damages (likely on exam)
3) COMMON QUESTION or DAMAGES - common questions must PREDOMINATE over individual ones AND class action is the superior method for handling disputes (most likely on exam) (e.g., mass torts)

Question 110

Class Actions: Court Certification + Appeal

Answer 110

A court MUST certify a class action, and also must:

1) define the class, claims, issues and defenses; and
2) appoint class counsel.

Certification of a class action is IMMEDIATELY APPEALABLE.

Question 111

Class Actions: Notice

Answer 111

Only in TYPE 3 CLASS ACTIONS (damages), the court MUST NOTIFY class members they are in a class, paid for by the class representative, and notifies the class that they:

1) can OPT OUT;
2) will be BOUND BY THE JUDGMENT if they don’t opt out; and
3) can enter a SEPARATE APPEARANCE.

Question 112

Class Actions: Which Types of Class Action Can Be Opted Out

Answer 112

There is NO RIGHT to opt out of TYPE 1 (prejudice) and TYPE 2 (injunction/declaratory), only available in Type 3

Question 113

Class Actions: Settlement + Type 3 Nuance

Answer 113

The parties can settle or dismiss a certified class action ONLY WITH COURT APPROVAL, and in all three types, the court MUST GIVE NOTICE to class members for feedback on settlement.

In Type 3 Class Actions (damages), the court MAY REFUSE to approve the settlement unless members are given a second chance to opt out.

Question 114

Class Actions: Subject Matter Jurisdiction

Answer 114

If class action asserts rights under federal law, FQ may be used. For diversity cases, ONLY CLASS REP citizenship is considered.

Question 115

Class Actions: Class Action Fairness Act (CAFA)

Answer 115

CAFA grants subject matter jurisdiction from diversity of citizenship jurisdiction, it will let a court hear a class action if: (i) there is AT LEAST 100 MEMBERS, (ii) ANY class member (not just rep), is of DIVERSE CITIENSHIP FROM ANY DEFENDANT, and (iii) aggregate claim EXCEEDS $5 MILLION.

Question 116

Discovery: Initial Required Disclosures

Answer 116

Within 14 DAYS of the Rule 26(f) conference, EACH PARTY MUST DISCLOSE the following information:

1) Identities of Persons with Discoverable Information To Support YOUR OWN Claims or Defenses;
2) Documents and Things that Party May Use To Support YOUR OWN Claims or Defenses (e.g., photos, videos, records, etc.)
3) Computation of Relief Sought Along With Supporting Document; and
4) Insurance Coverage.

Question 117

Discovery: Initial Required Disclosures - In Party’s Control

Answer 117

Documents and tangible things that are NOT in party’s control NEED NOT BE DISCLOSED.

Question 118

Discovery: Initial Required Disclosures - Penalty for Failure to Disclose

Answer 118

If a party fails to disclose, they CANNOT USE THE UNDISCLOSED MATERIAL unless failure to disclose was harmless

Question 119

Discovery: Required Disclosures About Expert Witness + Consulting Experts

Answer 119

Each party must identify expert witnesses WHO MAY PROVIDE testimony at trial.

Facts known and opinions held by consulting experts are GENERALLY NOT DISCOVERABLE absent exceptional circumstances.

Question 120

Discovery: Required Disclosures About Expert Witness - Contents of Disclosures

Answer 120

Each party must disclose to the other parties the IDENTITY of and WRITTEN REPORT prepared by the expert witness. The written report MUST include:

1) opinions the EW will express,
2) bases for opinions;
3) facts used to for the opinions;
4) the EW’s qualifications; and
5) how much the EW is being paid.

Question 121

Discovery: Required Disclosures About Expert Witness - Failure to Disclose

Answer 121

If a party fails to disclose the expert witness, she CANNOT USE THE EW unless failure was justified or harmless.

Question 122

Discovery: Required Pretrial Disclosures

Answer 122

No later than 30 DAYS before trial, the parties must give detailed information about their trial evidence

Question 123

Discovery Tools: Timing of Requesting Discovery

Answer 123

A party CANNOT SEND discovery requests to another party until after the Rule 26(f) conference

Question 124

Discovery Tools: Depositions + Who May Be Deposed

Answer 124

A person gives LIVE TESTIMONY in response to questions by counsel.

Both parties AND nonparties may be deposed

Question 125

Discovery Tools: Depositions - Notice to Parties + Subpoenas to Nonparties

Answer 125

Nonparties MUST BE SERVED WITH SUBPOENAS

A party to the lawsuit DOES NOT NEED subpoena, and a notice of deposition is sufficient to compel her appearance.

Question 126

Discovery Tools: Depositions - Subpoena Duces Tecum

Answer 126

Requires the deponent to bring requested materials with her to the deposition.

Question 127

Discovery Tools: Depositions - Limit on Deposition of Nonparty

Answer 127

Unless a nonparty agrees, the farthest she can be required to travel is 100 miles from where the nonparty resides or is employed.

Question 128

Discovery Tools: Depositions - Deposition of Organization

Answer 128

When the party is suing an organization, she may “notice” a deposition (describing facts that she wants to discover) and the organization may DESIGNATE a person to testify on that matter.

Question 129

Discovery Tools: Depositions - Limits on Number of Depositions

Answer 129

A party CANNOT TAKE MORE THAN 10 depositions or the SAME PERSON TWICE and cannot exceed one seven hour day.

Question 130

Discovery Tools: Depositions - Use of Depositions

Answer 130

Subject to the rules of evidence, depositions may be used to:

1) impeach,
2) any purpose if the deponent is an adverse party, or
3) any purpose if deponent is unavailable at trial.

Question 131

Discovery Tools: Interrogatories + Maximum Number + Answer Timing

Answer 131

Written questions TO PARTIES (NEVER NONPARTIES) to be answered in writing under oath

The maximum number is 25.

Interrogatories are to be answered WITHIN 30 DAYS.

Question 132

Discovery Tools: Interrogatories - Contention Interrogatories

Answer 132

Interrogatories that inquire about legal contentions ARE PERMITTED.

Question 133

Discovery Tools: Request to Produce

Answer 133

Asks a party (no nonparties, those use subpoenas) to make available for review and copying documents or things, including ENTRY ON PROPERTY to inspect.

Question 134

Discovery Tools: Request to Produce - Response

Answer 134

The disclosing party must respond to the request WITHIN 30 DAYS of service.

Question 135

Discovery Tools: Medical Exam + Requirements

Answer 135

COURT ORDER IS REQUIRED to compel a party or PERSON IN PARTY’S LEGAL CONTROL to submit to a medial exam. The requesting party must show: (i) the person’s HEALTH IS IN ACTUAL CONTROVERSY, and (ii) GOOD CAUSE.

Question 136

Discovery Tools: Medical Exam - Who Chooses Medical Examiner

Answer 136

The REQUESTING PARTY chooses the licensed medical professional

Question 137

Discovery Tools: Medical Exam - Requesting a Copy of the Report + Waiver

Answer 137

The person undergoing the exam can get a copy of the report, but MUST produce all medical reports by her own doctors about the same medical condition AND WAIVES doctor-patient privilege she had WITH HER DOCTOR regarding that condition.

Question 138

Discovery Tools: Request for Admission

Answer 138

A request for admission is a WRITTEN REQUEST that someone admit certain matters. Responding party must respond within 30 DAYS of service, either denying specifically or objecting. If failure to deny a proper request, the matter is deemed ADMITTED.

Question 139

Discovery Tools: Signature Requirement (Distinguished from Rule 11)

Answer 139

Parties must sign SUBSTANTIVE ANSWERS to discovery under oath. While Rule 11 DOES NOT APPLY, parties must sign every discovery request and response certifying it is warranted, not for an improper purpose, and not unduly burdensome.

Question 140

Discovery Tools: Duty to Supplement

Answer 140

If new facts come to light AFTER responding to discovery that change a required disclosure, the party MUST SUPPLEMENT HER RESPONSE

Question 141

Scope of Discovery

Answer 141

A party can discover ANYTHING that is RELEVANT TO A CLAIM OR DEFENSE AND PROPORTIONAL TO THE NEEDS OF THE CASE, even if harmful to the party.

Question 142

Scope of Discovery: Admissibility

Answer 142

Information need not be admissible to be discoverable.

Question 143

Scope of Discovery: Privilege

Answer 143

A party can object to discovery on the basis of evidentiary privilege.

Question 144

***Scope of Discovery: Work Product Protection

Answer 144

Work product is material prepared IN ANTICIPATION OF LITIGATION, and is protected from discovery.

Question 145

***Scope of Discovery: Work Product Protection - Who May Prepare

Answer 145

Work product NEED NOT be generated by a lawyer, it may be prepared by a party or representative.

Question 146

***Scope of Discovery: Work Product Protection - Exception (Qualified Work Product)

Answer 146

Work product sometimes MAY BE DISCOVERED if the party can show SUBSTANTIAL AND UNDUE HARDSHIP in obtaining the materials in an alternative way.

Question 147

***Scope of Discovery: Work Product Protection - Absolute Work Product

Answer 147

Some work product is ABSOLUTELY PROTECTED, such as mental impressions, conclusions, or legal theories.

Question 148

Scope of Discovery: Party’s Own Statement

Answer 148

Notwithstanding work product, a party has a right to demand discovery of ANY PREVIOUS STATEMENT she has made regarding the case.

Question 149

Scope of Discovery: Asserting Privilege or Work Product (Privilege Log)

Answer 149

If a party wishes to withhold discovery seeks a protective order based on privilege or work product, she must EXPRESSLY claim the protection and DESCRIBE the materials in detail (i.e. privilege log), where judge will review and make determination as to application of privilege.

Question 150

Scope of Discovery: Inadvertent Disclosure of Privileged or Protected Material

Answer 150

If a party inadvertently produced privileged or protected material, she should notify the other party PROMPTLY, and return, sequester or destroy the material pending a decision by the court of whether there was a waiver.

Question 151

Enforcement of Discovery Rules

Answer 151

There are three ways courts get involved in discovery disputes:

1) Party seeks PROTECTIVE ORDER (party must CERTIFY she tried in good faith to resolve the issue without court involvement),
2) Party DOESN’T FULLY respond (court may compel party to comply), or
3) NO RESPONSE to discovery request (subject to VARIOUS SANCTIONS plus costs)

Question 152

Sanctions Against a Party: Good Faith Attempt

Answer 152

The party seeking sanctions generally must certify that she tried in good faith to get the information WITHOUT court involvement.

Question 153

Sanctions Against a Party: Less Than Full Response

Answer 153

When a producing party responds, but not fully: (i) the requesting party moves for an order compelling the answer, and (ii) if party violates order, court can enter MERIT SANCTIONS along with costs and attorney’s fees

Question 154

Sanctions Against a Party: No Response

Answer 154

If the producing party fails to respond, court can enter MERITS SANCTIONS immediately, no need to get order compelling answers.

Question 155

Sanctions Against a Party: Merits Sanctions

Answer 155

A judge is free to choose among the following: (i) establishment order (establishes facts as true), (ii) strike pleadings of the disobedient party, (iii) disallow evidence from disobedient party, (iv) dismiss plaintiff’s case (if bad faith), or (v) enter default judgment

Question 156

Sanctions Against a Party: Litigation Hold + Adverse Inference

Answer 156

Whenever litigation is REASONABLY ANTICIPATED, parties must preserve discoverable material. If TRULY LOST because the party in control failed to take reasonable steps to preserve it, the court may ORDER MEASURES to cure the harm caused.

A court can order ADVERSE INFERENCE if the party acted WITH BAD FAITH.

Question 157

Adjudication Without Trial: Preliminary Injunctive Relief

Answer 157

A court order that a defendant either DO SOMETHING or REFRAIN FROM DOING SOMETHING. (preserves the status quo until trial)

Question 158

Adjudication Without Trial: Temporary Restraining Order

Answer 158

An order BEFORE THE PRELIMINARY INJUNCTION to maintain the status quo, meaning requiring defendant to do something or refrain from doing something

Question 159

Adjudication Without Trial: Temporary Restraining Order - Ex Parte Requirements + Bond

Answer 159

The court will issue a TRO ex parte ONLY IF:

1) the applicant files a paper UNDER OATH showing she will SUFFER IMMEDIATE AND IRREPARABLE HARM if she waits until the other side is heard, and
2) the applicant’s lawyers certifies in writing her efforts to give ORAL OR WRIITTEN NOTICE TO DEFENDANT (or why such notice should not be required)

Bond: If the court issues the TRO, the applicant must post a bond to cover the other side’s cost and damages IF IT TURNS OUT THE RESTRAINT WAS WRONGFUL.

Question 160

Adjudication Without Trial: Temporary Restraining Order - Duration + Extension

Answer 160

A TRO is effective for NO MORE THAN 14 DAYS, but the restrained party may move to dissolve or modify earlier.

A TRO CAN BE EXTENDED ANOTHER 14 DAYS (28 days total), but NO LONGER (any longer is considered a preliminary injunction, which cannot be issued ex parte)

Question 161

Adjudication Without Trial: Preliminary Injunction Factors

Answer 161

To grant a preliminary injunction, the applicant MUST SHOW:

1) IRREPERABLE HARM,
2) likely to WIN ON THE MERITS,
3) the BALANCE OF HARDSHIP FAVORS the applicant, and
4) the injunction is in the PUBLIC INTEREST.

Question 162

Adjudication Without Trial: Preliminary Injunction - Appeal

Answer 162

An order granting or denying a preliminary injunction MAY BE APPEALED as of right.

Question 163

Adjudication Without Trial: Voluntary Dismissal Without Court Permission

Answer 163

Plaintiff may withdraw case without court order IF DEFEDAND HAS NOT FILED ANSWERS OR MOTION FOR SUMMARY JUDGMENT.

Question 164

Adjudication Without Trial: Voluntary Dismissal With Court Permission + With or Without Prejudice

Answer 164

After defendant answers or motions to dismiss, plaintiff must seek court’s permission to voluntarily dismiss, which court has discretion to grant.

The FIRST voluntary dismissal is WITHOUT PREJUDICE, but a SECOND attempt to voluntarily dismiss will be WITH PREJUDICE (meaning claim is distinguished)

Question 165

Adjudication Without Trial: Default and Default Judgment

Answer 165

Occurs when the defendant DOES NOT RESPOND to the complaint within the appropriate time (21 days after served with process or 60 if waived)

Question 166

Adjudication Without Trial: Entry of Default + Defendant’s Response

Answer 166

A default is entered by the COURT CLERK on the docket sheet, and occurs when the PLAINTIFF MOVES for entry of default.

A defendant can respond by motion or answer until a default is actually entered (even beyond 21 days)

Question 167

Adjudication Without Trial: Entry of Default - Effect on Case

Answer 167

The entry of default cuts off the defendant’s right to respond, BUT DOES NOT AUTOMATICALLY ENTITLE PLAINTIFF TO RELIEF. The plaintiff must seek default judgment for relief.

Question 168

Adjudication Without Trial: Default Judgment by Clerk Requirements

Answer 168

The CLERK of the court can enter if:

1) Defendant made NO RESPONSE at all,
2) the claim is for a SUM CERTAIN IN MONEY,
3) Plaintiff gives an AFFIDAVIT of the sum owed, and
4) the DEFENDANT IS NOT A MINOR OR INCOMPETENT.

If any of these is not met, the defendant is entitled to a default judgment hearing

Question 169

Adjudication Without Trial: Hearing for Default Judgment + Right to Notice

Answer 169

The judge will hold a hearing and has discretion to enter the judgment

Defendant is entitled to notice IF SHE HAS APPEARED IN SOME FASHION

Question 170

Adjudication Without Trial: Default Judgment - Cap on Relief

Answer 170

In a default judgment, the plaintiff is limited to the relief sought IN THE COMPLAINT.

Question 171

Adjudication Without Trial: Motion to Set Aside Default or Default Judgment

Answer 171

The defendant may move to have the court set aside a default or default judgment is by showing: (i) GOOD CAUSE, and (ii) VIABLE DEFENSE.

Question 172

Adjudication Without Trial: Motion to Dismiss for Failure to State a Claim

Answer 172

If the plaintiff’s complaint fails to state a claim, the case can be dismissed

Question 173

Adjudication Without Trial: Motion to Dismiss for Failure to State a Claim - Judge’s Consideration

Answer 173

Here, the court IGNORES the plaintiff’s legal conclusions, and looks only toward the ALLEGATIONS OF FACT on the face of the complaint. If all facts are true, is there a PLAUSIBLE CLAIM? If no, dismiss is granted. If yes, case proceeds.

Question 174

Adjudication Without Trial: Motion for Summary Judgment (Rule 56) + Standard for Summary Judgment

Answer 174

This motion is used AFTER the case is filed and plaintiff has survived any Rule 12(b) motion.

The party moving for summary judgment must show:

1) there is NO GENIUNE DISPUTE ON A MATERIAL FACT, and
2) she is entitled to judgment AS A MATTER OF LAW.

Question 175

Adjudication Without Trial: Motion for Summary Judgment - Timing

Answer 175

Any party can move for summary judgment NO LATER THAN 30 DAYS after close of discovery.

Question 176

Adjudication Without Trial: Motion for Summary Judgment - Pleadings as Fact + Exception

Answer 176

Pleadings ARE NOT EVIDENCE and will not count towards a dispute of material fact in a court’s determination of motion for summary judgment.

Exception: A defendant who FAILS TO DENY a pleading will be considered to admit the fact OR a VERIFIED PLEADING.

Question 177

Judicial Management: Rule 26(f) Conference

Answer 177

At least 21 days before the court’s scheduling order, the parties meet and confer to discuss production of initial disclosures, claims, defenses, discovery plan, etc.

Question 178

Judicial Management: Rule 26(f) Conference - Contents of Discovery Plan

Answer 178

The plan must include views and proposals on timing, issues about discovery of ESI.

Question 179

Jury Trial: Mixed Suits of Law and Equity + Same Fact Underlies Both Law and Equity

Answer 179

All the facts underlying the damages will be tried to the jury, but facts ONLY relating to equity will be tried to the judge. Generally, JURY ISSUES ARE TRIED FIRST.

If the same fact underlies law and equity, the JURY WILL DECIDE THE FACT.

Question 180

Jury Trial: Jury Demand

Answer 180

A party MUST demand the jury IN WRITING no later than 14 days after service of the last pleading addressing a jury triable issue. This is considered waived if not done.

Question 181

Jury Trial: Selection of Jury - For Cause v. Peremptory Challenges

Answer 181

For Cause Challenges - a juror may be challenged “for cause because the potential juror will NOT BE IMPARTIAL, these are UNLIMITED.

Peremptory Challenges - Challenges for which the party states NO REASON for dismissal, so long as they used in a race and gender neutral manner. These are limited to THREE per side.

Question 182

Jury Trial: Number of Jurors (Federal) + Unanimity

Answer 182

Minimum of 6, Maximum of 12

Jurors verdict must be UNANIMOUS.

Question 183

Jury Trial: Waiver of Jury Instructions

Answer 183

Objections of jury instructions must be made BEFORE the jury is charged.

Question 184

Jury Trial: Types of Verdicts

Answer 184

1) General - who wins
2) Special - jury answers specific written questions about facts in the case, but does not say who wins
3) General Verdict with Written Questions - combination of the two.

Question 185

Jury Trial: Inconsistency Between General Verdict and Written Questions

Answer 185

If the answers are consistent WITH EACH OTHER, but not with the verdict, judge may enter an appropriate judgement consistent with the answers

If the answers are INCONSISTENT with each other and one or more is inconsistent with the general verdict, NO JUDGMENT MAY BE ENTERED.

Question 186

Jury Trial: Juror Misconduct

Answer 186

A verdict MAY be impeached ONLY ON EXTERNAL MATTERS (e.g., bribed, based on evidence outside of court, etc.)

Question 187

Bench Trial: Motion for Judgment as Matter of Law (JMOL) Standard

Answer 187

This applies in JURY TRIALS, but the judge enters judgment and avoid jury. The standard for granting is if REASONABLE PEOPLE COULD NOT DISAGREE on the result. Evidence is viewed in favor of the non-moving party

Question 188

Bench Trial: Motion for Judgment as Matter of Law (JMOL) - Timing

Answer 188

A party can move for JMOL AFTER the other side has been HEARD AT TRIAL.

Question 189

Bench Trial: Renewed Motion for Judgment as a Matter of Law (RJMOL)

Answer 189

A RJMOL is the same as a JMOL, BUT it comes up AFTER TRIAL

Question 190

Bench Trial: Renewed Motion for Judgment as a Matter of Law (RJMOL) - Timing and Prerequisite

Answer 190

RJMOL MUST BE MADE 28 DAYS after entry of judgment.

Prerequisite - the party MUST HAVE MOVED for JMOL AT TRIAL. Failure to do so would waive RJMOL.

Question 191

Bench Trial: Motion for New Trial + Timing

Answer 191

A new trial can be granted on ANY error that impacted the outcome, such as: (i) erroneous jury instruction, (ii) new evidence was discovered that could not have been discovered before, (iii) juror or party misconduct, (iv) judgment is against weight of evidence, or (v) damages are inadequate or excessive.

Timing is same as JMOL (28 days after entry of judgment)

Question 192

Bench Trial: Remittitur and Additur + Courts Where This Is Permitted

Answer 192

These occur when the jury damages SHOCK THE CONSCIENCE. However, court cannot lower judgment on its own, so it needs to give the parties a choice.

Remittitur - court offers the PLAINTIFF a choice to REMIT part of the damages OR NEW TRIAL. This is PERMITTED IN STATE OR FEDERAL court

Additur - court offers DEFENDANT a choice to ADD to the damages OR NEW TRIAL. This is PERMITTED IN STATE, NOT FEDERAL COURT (violates 7th Amendment).

Question 193

Motion for Relief from Order or Judgment

Answer 193

After a judgment is entered, it is possible to obtain relief from it under the following circumstances:

1) Clerical Error - Any Time
2) Mistake, Excusable Neglect - Reasonable Time (Not More Than 1 Year)
3) Fraud, Misrepresentation, or Misconduct by Opposing Party - Reasonable Time (Not More Than 1 Year)
4) Newly Discovered Evidence (that could not have been discoverable, but existed at the time of trial)- Reasonable Time (Not More Than 1 Year)
5) Judgment is Void (e.g., lack of SMJ) - Reasonable Time (no limit)

Question 194

Appellate Review: Final Judgment Rule

Answer 194

The losing party has a right to appeal if the court’s order is FINAL JUDGMENT, meaning the judgment is on the MERITS OF THE ENTIRE CASE. (no issues left)

Question 195

Appellate Review: Notice of Appeal - Timing

Answer 195

The notice of appeal MUST be filed with the DISTRICT COURT (not appellate court) within 30 days after entry of the judgment that is being appealed.

Question 196

Appellate Review: Interlocutory Appeal

Answer 196

An appeal of a NONFINAL JUDGMENT.

Question 197

Appellate Review: Interlocutory Appeal of Injunctions as of Right + Temporary Restraining Orders

Answer 197

Orders granting, modifying, or refusing preliminary or permanent injunctions ARE REVIEWABLE as of right despite the fact that the order MAY NOT BE FINAL.

TRO’s ARE NOT APPEALABLE (unless it lasts longer than 28 days, which makes it an injunction)

Question 198

Appellate Review: Interlocutory Appeals Act

Answer 198

The Interlocutory Appeals Act allows a non-final order if:

1) the district judge CERTIFIES it involves a controlling issue of law,
2) as to which there is a SUBSTANTIAL ground for difference of opinion, AND
3) the COURT OF APPEALS agrees to hear it.

Question 199

Appellate Review: Collateral Order Doctrine

Answer 199

The APPELLATE COURT has discretion to hear an appeal on an issue if that issue:

1) is DISTINCT FROM THE MERTIS of the case,
2) involves an important LEGAL QUESTION, and
3) is ESSENTIALLY UNREVIEWABLE if the parties await a final judgment

Most commonly comes up in situations where a party is prevented form being sued (e.g., sovereign immunity), since it meets the third prong

(These questions are rare)

Question 200

Appellate Review: Interlocutory Appeal - Multiple Claims and Parties

Answer 200

When more than one claim is presented in a case (e.g., counterclaims), the district court may expressly direct entry of a FINAL judgment as to one or more claim if it makes an EXPRESS FINDING that there is NO JUST REASON FOR DELAY.

Question 201

Appellate Review: Interlocutory Appeal - Class Actions

Answer 201

A court of appeals has DISCRETION to review an order granting or denying certification of a class action, so long as it is done within 14 days of an order.

Question 202

Appellate Review: Interlocutory Appeal - Extraordinary Writ (Mandamus or Prohibition)

Answer 202

An extraordinary writ of mandamus or prohibition is an ORIGINAL PROCEEDING (not appeal) in the COURT OF APPEALS to compel the district court judge to make or vacate a particular order. This is ONLY available if the district court is violating a CLEAR LEGAL DUTY.

Question 203

Appellate Review: Standards of Review - Questions of Law

Answer 203

When the district judge decides questions of law, the court of appeals uses DE NOVO standard, meaning NO DEFERENCE TO DISTRICT JUDGE.

Question 204

Appellate Review: Standards of Review - Questions of Fact In Bench Trial

Answer 204

In a non-jury trial when the district judge determines question of fact, the court of appeals will AFFIRM UNLESS the findings are CLEARLY ERRONEOUS.

Question 205

Appellate Review: Standards of Review - Questions of Fact In Jury Trial

Answer 205

Findings of fact by a jury are given the GREATEST DEFERENCE, and questions of fact will be affirmed UNLESS REASONABLE PEOPLE COULD NOT HAVE MADE THAT FINDING.

Question 206

Appellate Review: Standards of Review - Discretionary Matters

Answer 206

On discretionary matters (e.g., whether to grant a motion to amend pleadings), that the judge decides, the court of appeals will affirm UNLESS the district court judge ABUSED HER DISCRETION.

Question 207

Appellate Review: Standards of Review - Harmless Error

Answer 207

No reversal is required if the error is harmless, meaning it did not affect the outcome of the case.

Question 208

Claim and Issue Preclusion: Which Judicial System Law Applies

Answer 208

If Case 1 and Case 2 are in different judicial systems, the court in Case 2 applies the preclusion law of the JUDICIAL SYSTEM that decided Case 1

Question 209

Claim Preclusion (Res Judicata) Requirements

Answer 209

A claimant may only sue once to vindicate a claim. The requirements for claim preclusion are as follows:

1) Same Plaintiff v. Same Defendant
2) Valid, Final Judgment on the Merits (unless the Court said the judgment was without prejudice, any judgment will be deemed on the merits, unless based on lack of jurisdiction, improper venue, or failure to join indispensable parties), and
3) Case 1 and Case 2 Asserts the Same Claim (any right to relief arising from a transaction or occurrence)

Question 210

Issue Preclusion (Collateral Estoppel) Requirements

Answer 210

Issue preclusion is narrower than claim preclusion, since it only deals with ISSUES. The requirements for issue preclusion are as follows:

1) Case 1 Ended in VALID, FINAL JUDGMENT on the Merits,
2) Same Issue ACTUALLY LITIGATED and Determined in Case 1
3) Issue was ESSENTIAL to Judgment in Case 1,
4) The Issue was USED AGAINST Someone Who Was A Party to Case 1 (or in Privity) (DUE PROCESS FACTOR), and
5) The Issue was USED BY someone who was NOT a party to Case 1 (NON-MUTUAL ISSUE PRECLUSION)

Question 211

Issue Preclusion: Nonmutual Defensive Issue Preclusion + When It Is Allowed

Answer 211

Person asserting issue preclusion WAS NOT A PARTY to Case 1, and is a DEFENDANT in Case 2. (meaning, plaintiff can’t assert an issue already litigated against defendant because defendant wasn’t a party to case 1).

This is allowed SO LONG AS the plaintiff had a FULL CHANCE TO LITIGATE in Case 1.

Question 212

Issue Preclusion: Nonmutual Offensive Issue Preclusion + When It Is Allowed

Answer 212

The person using preclusion WAS NOT a party to Case 1 and is a PLAINTIFF in Case 2.

This is NOT ALLOWED in most states, but will allow if it would be FAIR

Question 213

Issue Preclusion: Nonmutual Offensive Issue Preclusion - Fairness Facotrs

Answer 213

In determining whether nonmutual issue preclusion is fair, the court will look at the following factors:

1) party to be bound had a FULL AND FAIR OPPORTUNITY to litigate in Case 1,
2) party to be bound had a strong INCENTIVE TO LITIGATE in Case 1
3) The party asserting issue preclusion could have EASILY JOINED to Case 1, and
4) There have been no INCONSISTENT FINDINGS on this issue.