Civil Procedure MBE

Question 1

Subject Matter Jurisdiction (SMJ)

Answer 1

In general—a court’s competence to hear and determine cases of general class and subject to which proceedings in question belong

Question 2

Federal question (FQ)

Answer 2

1. District courts have original jurisdiction (JX) of all civil actions arising under the Constitution, laws, or treaties of the U.S.
2. Concurrent/exclusive JX—state courts and federal courts have concurrent JX of FQ claims, except when Congress expressly provides that JX of the federal courts is exclusive
3. Scope * Express—FQ exists if cause of action (c/a) in question is expressly created by federal law and federal law provides the underlying right * Implied—FQ likely to be found if right is created by federal law, and a c/a can be fairly implied and was intended by Congress * Not express/implied—a state-law claim with a federal issue that is (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress
4. Well-pleaded complaint—FQ exists only when federal issue is presented on the face of the complaint (P’s c/a—not defenses, answers or counterclaims)
5. No amount-in-controversy or diversity requirement

Question 3

Diversity Jurisdiction

Answer 3

1. Federal courts have JX when parties are citizens of different states or citizens of a state and citizens of a foreign state, and amount in controversy exceeds $75,000
2. Complete diversity—no diversity if any P is a citizen of the same state or citizen of the same foreign country as any D
3. Citizenship of parties * Individuals—domicile is state in which an individual is present and intends to reside indefinitely; an individual can only have one domicile at a time; and domicile determined when action is commenced * Corporations—citizenship is state of incorporation and state where it has its principal place of business (“nerve center” from which the high-level officers direct, control, and coordinate the activities of the corporation)
4. Amount in controversy * Standard of proof—P’s good-faith assertion in complaint is sufficient unless there is legal certainty that P cannot recover alleged amount * Aggregation of claims—permitted for single P against single D, or multiple Ps with common/undivided interest (counterclaims generally not counted in determining whether P has met amount) * Permissive counterclaim must meet jurisdictional amount requirement; compulsory counterclaim need not
5. Creating/destroying diversity—assignment of claims, failure to name indispensable parties, voluntary change of state citizenship, and replacement of parties

Question 4

Supplemental Jurisdiction

Answer 4

1. Federal court with JX may exercise SJ over additional claims which court would not independently have SMJ (usually state-law claims against a nondiverse D), but that arise out of a “common nucleus of operative fact” such that all claims should be tried in a single judicial proceeding
2. FQ—additional claims against same party can be heard through SJ if common nucleus of operative fact test is met (same requirements for pendent JX over claims involving joinder or intervention of additional parties)
3. DJ * Permissive joinder—addition of a plaintiff asserting additional claim cannot violate complete diversity rule (and not required to satisfy jurisdictional amount) * Counterclaims—compulsory counterclaims need not satisfy jurisdictional amount, but permissive counterclaims must satisfy both DJ requirements * Cross-claims—may be asserted by a D against another D or by a P against another P, if the cross-claim arises out of the same transaction or occurrence as the initial claim; no amount in controversy or citizenship requirement if the court has SMJ over original complaint

Question 5

Removal Jurisdiction

Answer 5

1. D may generally remove case from state court to federal district court having SMJ * Removal must be to the district court for the district and division in which the state court action is pending * Removal to the wrong district court is subject to a motion to remand (or transfer to the proper federal court)
2. Determination * Generally—right to remove determined by pleadings filed when notice to remove is filed * DJ—diversity must exist at time of filing of original action as well as at time notice of removal is filed, unless (i) party preventing diversity is dismissed, or (ii) nondiverse party against whom P has no colorable claim was fraudulently joined to defeat diversity
3. DJ—if removal based solely on DJ, claim may be removed only if no D is a citizen of the state in which the action was filed
4. FQ—if FQ claims are joined with claims that aren’t independently removable, entire case may be removed
5. Notice * D must file notice within 30 days after receipt by or service on the D of the initial pleading * FQ—only Ds against whom federal claim is filed must consent/join in removal * Removal based on DJ—cannot occur more than one year after action is commenced (unless P acted in bad faith)
6. Remand * Lack of SMJ—any time before final judgment is rendered * Other reasons—motion to remand for any defect other than SMJ must be within 30 days after filing of notice of removal

Question 6

Personal Jurisdiction

Answer 6

A. In general

1. Three types—in personam, in rem, and quasi-in-rem JX
2. A federal court will look to state long-arm statutes to determine if it has PJ over the parties
3. Due process—federal court may not exercise PJ over a D unless the D has “minimum contacts” with the forum state and the exercise of JX would be fair and reasonable
4. Consent—a party may expressly, impliedly, or voluntarily consent to PJ
5. Defenses—lack of JX, insufficiency of process or service of process must be asserted in responsive pleading (or motion before it is submitted), and failure to object waives the objection

Question 7

In personam

Answer 7

1. Generally required whenever judgment is sought that would impose a personal obligation on a D
2. Bases for in personam JX
   * Voluntary—appearance alone does not waive right to object to PJ
   * Domicile—if authorized by statute, a state has JX over person domiciled in state (person with capacity intends to make that state his home)
   * Consent—D can expressly consent to JX by K, stipulation, or by authorizing an agent; impliedly through conduct; or voluntarily through appearance in court (unless to object to JX)
   * Long-arm statute—authorizes PJ over nonresidents who engage in some activity in state or cause some action to occur within state to extent permissible under Due Process Clause
   * Attachment of property—if claim is not related to ownership of attached property, there must be minimum contacts between D and forum state to establish JX

Question 8

In personam due-process requirements

Answer 8

Due-process requirements—satisfied if in personam jurisdiction exists or if nonresident D has certain minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice

Question 9

In personam Minimum Contacts

Answer 9

Purposeful availment—D’s contacts with forum state must be purposeful and substantial, such that D should reasonably anticipate (foresee) being taken to court there

Specific and general JX  Specific—when c/a arises out of or closely relates to a D’s contact with forum state, even if it’s the only contact; specific personal JX is for that action only  General—requires that D be domiciled in or have continuous and systematic contacts with the forum state; confers personal JX even when c/a has no relationship with D’s contacts with the state

Specific and general JX  Specific—when c/a arises out of or closely relates to a D’s contact with forum state, even if it’s the only contact; specific personal JX is for that action only  General—requires that D be domiciled in or have continuous and systematic contacts with the forum state; confers personal JX even when c/a has no relationship with D’s contacts with the state

Question 10

In personam Fair play and substantial justice

Answer 10

once minimum contacts are established, a court must still examine the facts to determine if maintenance of the action would “offend traditional notions of fair play and substantial justice.” Factors include:
o Interest of forum state in adjudicating matter
o Burden on D of appearing in case
o Interest of judicial system in efficient resolution of controversies, and
o Shared interests of the states in promoting common social policies

Question 11

In personam JX over corporations

Answer 11

Resident (i.e., incorporated in the forum state)—any action may be brought against a resident corporation

• Foreign (i.e., not incorporated in the forum state) o Minimum contacts and substantial fairness rules apply
  o Test is whether a corporation’s affiliations with the forum state are so “continuous and systematic” as to render the corporation essentially “at home” in the forum state
  o A corporate D is always at home in the state of incorporation and the state of its principal place of business (and, in exceptional cases, a state in which D’s operations are so substantial and of such a nature as to render the corporation at home there as well)

Question 12

In personam internet website

Answer 12

JX over a nonresident’s website is based on the degree of interactivity between the website and the forum, ranging from passive sites to those that are integral to D’s business

Question 13

In personam Suits based on K

Answer 13

K can be a significant factor in determining whether MC exist, and choice-of-law provisions are a significant factor as they establish that the nonresident purposefully availed herself to benefits of forum state’s laws

Question 14

In rem

Answer 14

Definition—gives court authority to determine issues concerning rights to real/personal property

• Due process—proceedings against property must still satisfy due-process requirements for PJ and property must generally be present within the forum state

Question 15

Quasi in rem

Answer 15

Definition—determines only the interests of the parties to the action regarding property located in forum state (e.g., lien foreclosure or quiet title action), and not personally binding against D

• Due process—if disputes are unrelated to ownership of property and no close relationship is formed, in addition to having property located in forum state, MC must be shown between D and forum state

Question 16

Notice and opportunity to be heard

Answer 16

1. Notice * Rule—must be reasonably calculated, under all the circumstances, to apprise interested parties of pending action and afford them the opportunity to object * Form—via in-person delivery, registered mail, etc. if identity/address known or obtainable through reasonable efforts
2. Opportunity to be heard—for D whenever there is state-sponsored interference with a D’s property interest

Question 17

Defenses to Jurisdictional Claims

Answer 17

special appearance to challenge PJ (abolished under FRCP) and collateral attacks

Question 18

Venue in federal court

Answer 18

1. General rule—venue proper in judicial district where any D resides in state; where all Ds reside; or where substantial part of the events/omissions occurred; or where property that is subject of the action is located (otherwise where any D is subject to PJ)
2. Residence—judicial district where D is domiciled for individual; where D subject to PJ for an entity; or, when entity is P, where principal place of business is located

Question 19

Change of Venue - Original Venue proper

Answer 19

• General rule—transfer permitted to any district where case might have been brought or to which all parties consent
• DJ—new district court must apply law from previous court
• FQ—new district court in another appellate circuit will apply federal law as interpreted by its court of appeals (not the appellate circuit of the transferring district court)

Question 20

Change of venue - OG venue improper

Answer 20

• General rule—dismiss case or transfer case to proper district if it’s in the interest of justice
• DJ—district court to which the case is transferred applies the choice-of-law rules of the state in which it is located (not the state law of the court transferring the case)
• FQ—new court will apply its own court of appeals’ interpretation of law (not the appellate circuit of the transferring district court)
• No PJ—a court lacking PJ over the D may transfer the case to a different venue

Question 21

Forum non conveniens

Answer 21

1. Federal—only used when forum that is deemed most appropriate for the action is a state or foreign court
   * Burden generally on D, but if forum-selection clause designates a state or foreign court, burden shifts to P

Question 22

Choice of Law - Erie Doctrine

Answer 22

In General

1. FQ—federal substantive and procedural law controls, as well as federal common law
2. DJ—state substantive law and applicable federal procedural law
3. SJ—state substantive law for state-law claim

Question 23

Erie - Substance or procedure–determination is unclear

Answer 23

1. Valid federal statute on point when state and federal laws conflict * Apply federal law * Before applying a Federal Rule (rather than a federal statute), court must determine the Rule is valid under the Rules Enabling Act: does the Federal Rule abridge, enlarge, or modify any substantive right? o If no, then apply the Federal Rule o If yes, then apply the Federal Rule if it only incidentally affects a litigant’s substantive rights
2. No federal rule on point—apply state law if failure to do so would lead to different outcomes in state and federal court
3. Substantive law—elements of claim or defense, statute of limitations (S/L) and tolling provisions, and burden of proof
4. Procedural law—judge/jury allocation, assessment of attorney’s fees, equitable/legal determinatio

Question 24

Erie - Federal common law

Answer 24

1. In general * Created when there is no applicable federal statute or constitutional provision * There is no general federal common law; general areas that federal common law is applicable to will be limited
2. FQ—apply federal common law in the following instances: * Admiralty cases * When the U.S. is a party to the case * Interstate disputes * Cases implicating relations with foreign countries * Cases in which the government acts in a proprietary role (e.g., enters into contracts, issues commercial paper, and oversees regulatory programs), and * When Congress has left a gap in a statutory scheme
3. DJ—when a “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law
4. State court cases—if state JX is concurrent with FQ JX and federal common law would have applied in federal court, then it will also apply in state court

Question 25

Erie state conflict-of-law rules

Answer 25

Fed ct must apply state’s conflict-of-law rules

1. DJ—district court bound by conflict-of-laws rules of state in which the district court is located, but only to extent that state’s rules are valid under Full Faith and Credit and Due Process Clause
2. Procedural or substantive law—states apply their own procedural laws and sometimes apply the substantive law of a foreign JX

Question 26

Pleadings - Service of Process

Answer 26

1. Timing—within 90 days after filing of complaint
2. Methods of service for individual * Personally * At D’s usual place of abode with a person of suitable age/discretion who resides there, or * Delivering to D’s agent
3. Service on corporations/associations—to officer or agent, or by following state law
4. Waiver of service * Request for waiver must be in writing and addressed to individual D, or officer/agent of corporation, and must give D reasonable time of at least 30 days after request sent to return waiver * Effect—extends time to serve answer from 21 (after service of process) to 60 days (after waiver request sent—90, if foreign)

Question 27

TRO

Answer 27

• Preserves the status quo until an opportunity for a full hearing
• Effective for a limited time (no longer than 14 days unless good cause exists or adversary consents)
• May be issued without notice to adverse party if immediate and irreparable injury will result and movant’s attorney certifies efforts made to give notice and the reason why notice should not be required
• Not generally immediately appealable
• Motion to dissolve—if issued without notice, the adverse party may appear and move to dissolve or modify the TRO (must give two days’ notice unless the court sets a shorter time)

Question 28

Preliminary Injunction

Answer 28

• Issued prior to a full hearing on the merits, upon notice to the defendant
• May be issued to a P if:
  o P is likely to succeed on the merits
  o P is likely to suffer irreparable harm in the absence of relief
  o Balance of equities is in P’s favor, and
  o Injunction is in the public interest

Question 29

Permanent Injunction

Answer 29

• Once issued, it continues until dissolved by the court, but any affected person may move for modification or dissolution
• Same standard as for PI but P must show actual success on the merits

Question 30

Pleadings - Complaint

Answer 30

1. Federal rule—short/plain statements of court’s SMJ and P’s claim establishing entitlement to relief, and demand for judgment for relief sought (notice pleading)
2. Timing—filing generally occurs before service; service generally within 90 days of filing

Question 31

Pleadings - Motions Against the Complaint (within 21 days of service)

1. Rule 12(b) motion to dismiss

Answer 31

1. Rule 12(b) motion to dismiss

• Lack of SMJ (can be raised at any time)
• Lack of PJ, improper venue, insufficient process or service (can be raised in preanswer motion or answer, or within time to amend answer as of right; otherwise waived)
• “Omnibus motion” rule (motion raising one of these defenses but omitting the others waives the excluded defenses)
• Failure to state a claim upon which relief can be granted and failure to join necessary/indispensable party (can be raised in any pleading, motion for judgment on pleadings, or at trial)

Question 32

Pleadings - Motions Against the Complaint (within 21 days of service)

2. Rule 12(b)(6) motion to dismiss

Answer 32

• Claim will be dismissed if it fails to assert legal theory of recovery cognizable at law or allege facts sufficient to support cognizable claim; and court treats well-pleaded facts as true, resolves doubts/inferences in P’s favor, and views pleading in light most favorable to P
• Strength of facts—must raise right to relief above speculation, assuming that allegations in complaint are true; and raise reasonable expectation that discovery will reveal evidence of necessary element
• Court can consider—only allegations and attached exhibits in the complaint
• Court’s two-step analysis
  o Identify and reject legal conclusions unsupported by factual allegations
  o Assume truth/veracity of well-pleaded facts and include context specific analysis that draws on court’s judicial experience and common sense to determine if allegations plausibly give rise to relief

Question 33

Pleadings - Motions Against the Complaint (within 21 days of service)

3. Motion for judgment on the pleadings [Rule 12(c)]

Answer 33

after answer filed, allows court to dispose of a case when material facts are not in dispute and judgment on merits can be achieved based on content of pleadings

Question 34

Pleadings - Motions Against the Complaint (within 21 days of service)

4. Motion for more definite statement

Answer 34

responding party may move for more definite statement if claim for relief is so vague or ambiguous that party cannot reasonably draft responsive pleading

Question 35

Pleadings - Motions Against the Complaint (within 21 days of service)

5. Motion to Strike

Answer 35

Federal rule—when pleading contains insufficient defense, or redundant, immaterial, impertinent, or scandalous material – court may order such defense or material stricken; can be used to avoid unnecessary time and money in litigating invalid issues

Question 36

Pleadings - Motions Against the Complaint (within 21 days of service)

6. Amending a motion

Answer 36

not specifically provided for in the Rules, but generally allowed by courts if the party acts promptly

Question 37

Answer

Answer 37

1. Admission/denial—answer must admit/deny P’s allegations, or plead lack of sufficient knowledge (with reasonable investigation)
2. Affirmative defenses—D must state them or they are deemed waived
3. Timing
   * Service under Rule 5—service to party w/ attorney must be made to attorney in accordance w/ Rule 5
   * No motion to dismiss—21 days after being served with summons and complaint (or 60 days if D timely waived service)
   * Motion to dismiss—no filing while motion is pending, and within 14 days after notice of court’s action

Question 38

Reply

Answer 38

Response—by P to D’s answer within 21 days after being served with order to reply

Question 39

Amendments to Pleadings

Answer 39

1. Rule * Party may amend a pleading once as of right no later than 21 days after serving it if no responsive pleading is required, or after being served with an answer or 12(b) motion; otherwise during/after trial if it conforms to evidence and opposing party has opportunity to prepare * Court should freely give leave to amend a pleading when justice so requires and will not result in undue prejudice to opposing party
2. Relation back
   * New claim—relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction, or occurrence as original pleading
   * New party
   o Relates back to date of original pleading if amendment asserts claim/defense that arose out of same conduct, transaction or occurrence as original pleading
   o New party receives notice of action within 90 days after original complaint filed
   o D knew or should have known about action but for mistake concerning proper party’s identity
3. Time to respond—within 14 days after service of amended pleading or time left on original pleading, whichever is later

Question 40

Supplemental Pleadings

Answer 40

to describe events occurring after filing of earlier pleading

Question 41

Rule 11 sanctions

Answer 41

1. Court may impose sanctions limited to what suffices to deter repetition of conduct by others similarly situated; does not apply to mandatory disclosures and discovery requests, responses, and objections,
2. Types—(i) nonmonetary directives; (ii) penalties to court; or (iii) if imposed on motion, payments to movant for attorney’s fees and other expenses directly resulting from violation

Question 42

Permissive Joinder

Answer 42

• Ps and Ds may join/be joined in one action if any right to relief is asserted jointly, severally, or with respect to or arising out of same transaction, occurrence or series of them and question of law or fact common to all Ps or Ds will arise
• SMJ—need SMJ:
  o Ds—SJ doesn’t apply so there must be complete diversity between Ps and Ds and each claim must exceed $75,000
  o Ps—SJ is permitted for JX amount less than or equal to $75,000 but there must still be complete diversity
• In personam JX—court needs in personam PJ over D for proper joinder
• Venue—joinder subject to applicable venue requirements

Question 43

Compulsory joinder

Answer 43

• Necessary parties—necessary for just adjudication:
  o Complete relief cannot be provided to existing parties in absence of that person, or
  o Disposition in absence of that person may impair person’s ability to protect his interest, or
  o Absence of that person would leave existing parties subject to substantial risk of multiple or inconsistent obligations
• SMJ—need SMJ, so if exclusive basis for JX is DJ, party can’t be added if it would destroy diversity
• In personam JX—court needs in personam PJ over D for proper joinder
• Venue—if a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party
• Indispensable parties—if parties cannot be joined because of JX or venue, court may dismiss case and will consider following factors:
  o Extent to which judgment without party would prejudice them or existing parties
  o Extent to which protective measures could prevent prejudice
  o Whether judgment rendered in necessary party’s absence would be adequate, and
  o Whether P would have adequate remedy if action were dismissed

Question 44

Intervention as of right (if not through federal statute)

Answer 44

• Nonparty has interest in property or transaction that is subject matter or action
• Disposition of action may impair nonparty’s interest
• Nonparty’s interest not adequately represented by existing parties

Question 45

Permissive intervention - court must consider undue delay/prejudice to rights of original parties

Answer 45

• Movant has conditional right to intervene under federal statute, or
• Movant’s claim/defense and original action share common question of law or fact

Question 46

Timeliness for Intervention

Answer 46

court will consider following factors:

• Length of time movant knew or reasonably should have known that its interest was threatened before moving to intervene
• Prejudice to existing parties if intervention is permitted, and
• Prejudice to movant if intervention is denied

Question 47

Intervention - SMJ

Answer 47

cannot be joined in a case based exclusively on DJ if the exercise of JX inconsistent with requirements of DJ

Question 48

Interpleader

Answer 48

allows person holding property (stakeholder) to force all potential claimants into single lawsuit

Question 49

Federal Interpleader Rule

Answer 49

• Rule:
  o Ps—persons with claims that may expose P to multiple liability may be joined as Ds and required to interplead claims though they lack common origin or are adverse and independent rather than identical or P denies liability
  o Ds—exposed to similar liability may seek interpleader through a cross-claim or counterclaim
• SMJ—court must already have JX over all parties, and for DJ, only stakeholder needs to be diverse from claimants (claimants need not be diverse among themselves)
• In personam JX—court needs in personam PJ over claimants in order to join them
• Venue—interpleader subject to venue requirements

Question 50

Federal Statutory Interpleader

Answer 50

• SMJ—DJ met if any two adverse claimants are citizens of different states, and property at issue must be $500 or more
• In personam JX—nationwide PJ and service of process permitted
• Venue—proper in any district where a claimant resides

Question 51

Joinder of claims - permissive joinder

Answer 51

1. Permissive joinder

• A party may join independent or alternative claims of whatever nature against opposing party
• SMJ:
  o DJ—P may aggregate all claims to satisfy amount-in-controversy requirement
  o FQ—nonfederal claims can be joined only if DJ exists or if claims are part of same case/controversy as federal claim so SJ applies
• Venue—joinder subject to venue requirements

Question 52

Joinder - Counterclaims

Answer 52

must be answered w/in 21 days of service

• Compulsory:
  o At time of service, counterclaim is compulsory if it arises out of same transaction/occurrence that is subject matter of opposing party’s claim and doesn’t require adding another party over whom court has no JX
  o SMJ—by definition court will have SJ so don’t need independent SMJ from original claim
• Permissive:
  o Party has discretion if counterclaim isn’t compulsory
  o SMJ—need DJ or FQ
• Third parties—can assert counterclaims against original P or D, and governed by requirements for counterclaims and joinder

Question 53

Joinder - Cross-claims

Answer 53

must be answered w/in 21 days of service

• A claim against co-party may be asserted if they arise out of same transaction or occurrence that is subject matter of original action or counterclaim and new parties subject to joinder rules
• SMJ—by definition court will have SJ so don’t need independent SMJ from original claim
• In personam JX and venue—PJ satisfied because parties are already before the court; proper venue over original claim, party cannot object to venue over cross-claim

Question 54

Joinder - Third-party claims (impleader)

Answer 54

• Definition—defending party (third-party P) can implead nonparty (third-party D) for liability on original claim
• Timing—can be asserted any time after complaint is filed, but third-party P must get court permission if filed more than 14 days after service of original answer
• SMJ— by definition court will have SJ so don’t need independent SMJ from original claim, but if original claim is based only on DJ, claims by P against third-party D must meet DJ or FQ JX requirements on its own
• In personam JX—court needs in personam PJ over third parties

Question 55

Basic requirements for class actions

Answer 55

• Numerosity—class is so numerous that joinder of all members is impracticable
• Commonality—must be questions of law or fact common to class
• Typicality—claims/defenses of representatives must by typical of class, and
• Adequacy—representatives must fairly and adequately protect the interests of class

Question 56

Three situations when class can be certified

Answer 56

• Risk of prejudice—separate actions would create risk that the class opponent would be subject to inconsistent adjudications or if separate actions would impair the interests of class members
• Final equitable relief—the class shares a general claim and injunctive or declaratory relief is sought; a single, indivisible remedy would provide relief to each class member (therefore monetary damages not available)
• Common legal/factual questions—must predominate over questions affecting individual members and class action is superior method for bringing about fair and efficient adjudication of controversy; class representatives need not establish likelihood of success on common question of law

Question 57

Class actions SMJ

Answer 57

FQ, DJ (class representatives must be diverse from class opponents and at least one P must meet $75,000 jurisdictional amount), or Class Action Fairness Act of 2005

Question 58

Class actions Venue

Answer 58

when there is a defendant class, venue requirements must be met and residence of class representatives (not class members) is what matters

Question 59

Class actions settlement or dismissal

Answer 59

the claims, issues, or defenses of the certified class may be voluntarily settled, compromised, or dismissed only with the approval of the court; the court must direct notice to all class members bound by proposed settlement or dismissal

Question 60

Class actions judgment

Answer 60

A valid judgment generally binds all members of the class except those who opted out

Question 61

Mandatory disclosures

Answer 61

1. Initial disclosures * Generally—subject to certain exceptions, must disclose information regarding individuals having discoverable information, documents supporting claims/defenses, computation and backup of damages, or relevant insurance agreement for satisfying judgment * Standard—information reasonably available to it, and party not excused for not fully investigating case, challenges to insufficiency of another party’s disclosures, or because another party failed to disclose * Timing—generally within 14 days after the parties’ discovery conference
2. Expert testimony * Generally—identify expert witnesses and produce expert report subject to certain requirements * Timing—at least 90 days before trial or 30 days after disclosure of opposing party’s expert evidence on same subject matter
3. Pretrial (evidence to be presented at trial other than for impeachment) * Generally—witness list by testimony or deposition, and documents and exhibits * Timing—at least 30 days before trial * Objections—within 14 days after disclosures are made or else waived unless excused by court for good cause or pursuant to relevance rules of the FRE

Question 62

Discovery duty to preserve

Answer 62

Potential litigants have a duty to preserve potentially relevant evidence when litigation in reasonably anticipated/probable; duty includes affirmatively preventing destruction/alteration of evidence

Question 63

Discovery scope

Answer 63

• Generally permitted with regard to any nonprivileged matter relevant to any party’s claim or defense in action, proportional to the needs of the case
• Relevance—information need not be admissible in evidence to be discoverable
• Privileged information (not discoverable)—determined under federal common law for FQ cases, and state law for DJ or SJ

Question 64

Discovery limitations

Answer 64

balance discovery and privacy interests

• Generally cannot seek discovery until after discovery conference
• Discovery sought is unreasonably cumulative or can be obtained from a more convenient or less expensive source
• The party seeking discovery had ample opportunity to obtain information by discovery
• The proposed discovery is not relevant and proportional
• A party is not required to provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost
• Spoliation of evidence results in sanctions if the information cannot be restored/replaced

Question 65

Discovery trial preparation materials

Answer 65

• Party may not discover documents and tangible things prepared in anticipation of litigation or for trial, unless other party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means
• Mental impressions, conclusions, opinions, or legal theories of party’s attorney or other representative are protected

Question 66

Discovery experts

Answer 66

Expert witnesses may be deposed, but expert report drafts and disclosure are protected, as well as any communications between the party’s attorney and expert witness unless they relate to compensation, facts/data used or assumptions relied upon by expert in forming his opinion

Question 67

Discovery conference

Answer 67

Parties must confer at least 21 days before scheduling conference to consider nature and basis of their claims/defenses and possibility of settlement, automatic disclosures, preserving discoverable information, and developing discovery plan; sets the scope and schedule for discovery

Question 68

Discovery devices

Answer 68

1. Oral depositions—can take place any time after discovery conference and limited to 10 per party (unless showing of good cause to court)
2. Interrogatories * 25 written interrogatories per party relating to nonprivileged matters relevant to any party’s claim/defense and proportional to the needs of the case * Must be fully and separately answered under oath unless timely objected to with specificity
3. Requests to produce documents—a party has 30 days from being served with request or 30 days from the parties’ first rule 26(f) conference, if the request was served prior to that conference to respond
4. Physical/mental exams—the court may order person to submit to physical/mental exam if physical/mental condition is in controversy
5. Requests for admission—a party can serve written request for admission of any relevant, nonprivileged matters relating to statements or opinions of fact or to application of law to fact, which once admitted is conclusively established
6. Subpoenas—issued from the court where the action is pending, used to command a nonparty to take action (e.g., attend a trial, testify)

Question 69

Discovery enforcement

Answer 69

1. Motion to compel—party can move to compel disclosure or discovery against a party failing to make automatic disclosures, or to respond to discovery requests (including evasive or incomplete disclosure)
2. Sanctions—if a party fails to obey a court order regarding discovery, the court may impose sanctions subject to the abuse-of-discretion standard
3. Electronically stored information—if information that should have been preserved is lost because a party failed to take reasonable steps to preserve it, the court may order measures to cure the prejudice or, if the party acted with the intent to deprive the another party of the information, instruct the jury that it may or must presume that the information was unfavorable to the party or dismiss the action or enter a default judgment

Question 70

Case management

Answer 70

1. Pretrial conferences—the court may direct counsel and unrepresented parties to appear for pretrial conferences for purposes such as expediting disposition of the action, effective case management, and facilitating settlement
2. Scheduling conference and order—limits the time to join other parties, amend pleadings, complete discovery, and file motions
3. Sanctions—a party who fails to appear or participate in a pretrial or scheduling conference, or fails to obey a resulting order, may be subject to sanctions or ordered to pay reasonable expenses

Question 71

Adjudication without trial

Answer 71

1. Dismissal—of complaint, counterclaim, cross-claim, or third-party claim

• Voluntary
  o By filing notice or by stipulation—P can dismiss action without leave of court any time before opposing party serves answer or motion for summary judgment, or by stipulation of all parties who have appeared; dismissal will usually be without prejudice, but the “two-dismissal” rule applies
  o By court order—decision to dismiss with or without prejudice is left to court’s discretion (usually without prejudice but not a matter of right); court considers whether dismissal without prejudice unfairly affects D; “two-dismissal” rule generally not implicated
• Involuntary—when P fails to prosecute or comply with the Rules or court order, D can move to dismiss, which if granted is with prejudice and operates as an adjudication on the merits

Question 72

Adjudication without trial: Default

Answer 72

Default—when a party has failed to plead or otherwise defend an action; may be set aside for good cause

• Default judgment—once a default is entered, P may seek default judgment

Question 73

Adjudication w/o trial summary judgment

Answer 73

• Standard—no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law; court will construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of nonmoving party
• Burden of proof—the movant has burden of persuasion to show prima facie case before the burden shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of fact
• Timing—may be filed anytime until 30 days after close of all discovery; nonmovant generally must be given sufficient opportunity to obtain discovery

Question 74

Adjudication w/o trial dec judg

Answer 74

the court tells the parties their rights and responsibilities without awarding damages or ordering parties to do (or refrain from doing) anything

Question 75

Right to jury trial

Answer 75

action at law tried on demand to a jury, but for state-law claims in diversity actions, federal law will determine whether there is a right to a jury trial

Question 76

Jury demand

Answer 76

must be served within 14 days after service of the last pleading directed to the issue that is to be tried by jury

• A party may specify the issues for which a jury trial is demanded (otherwise, the demand is treated as requesting a jury trial for all issues triable by a jury)
• Court has discretion to authorize an advisory jury to issue non-binding findings on any issues of fact, and may either adopt or disregard the advisory jury’s findings
• A party may withdraw a jury trial demand with the consent of the other parties
• Case removed from state court—a party who has made a jury trial demand in accord with state law need not renew the demand; if state law does not require a party to make a jury trial demand, a party need not make one after removal (unless the court orders the parties to do so)

Question 77

Jury size

Answer 77

• At least six and no more than 12
• Once selected, a juror must participate in the verdict unless dismissed for good cause
• No provisions for alternate jurors

Question 78

Jury selection

Answer 78

peremptory challenges may not be made for racial or gender-based reasons; court will allow three for each party in civil cases but an unlimited number of challenges are permitted for cause (e.g., bias or personal relationship to a litigant)

Question 79

Jury instructions

Answer 79

• A party may request the court to give specific instructions at the close of evidence (or earlier if ordered by the court)
• Prior to final arguments, the court must inform the parties of any instructions it proposes to give to the jury; the parties may object to the court’s proposed instructions on the record and out of the jury’s hearing
• Unless a party objects on the record to an erroneous instruction given or proposed to be given by the court or to the court’s failure to give an instruction requested by a party, the party generally cannot raise the matter on appeal

Question 80

Jury verdicts

Answer 80

• Unless the parties stipulate otherwise:
  o The verdict must be unanimous o The verdict must be returned by a jury of at least six jurors
• Form of verdict
  o Special—written finding made by the jury on each issue of ultimate fact; judge determines the legal consequences of those findings
  o General—typically a decision by the jury as to the prevailing party and, if the plaintiff is the prevailing party, the amount of damages
  o General with special interrogatories—couples a general verdict with a special verdict; used to ensure that the jury independently considered the material facts of the case in arriving at its verdict

Question 81

Juror misconduct

Answer 81

Concealing facts relating to his qualifications or giving false testimony during voir dire
o Party must show that the juror failed to answer honestly a material question and that a proper response would have provided a valid basis for a challenge for cause

• Other forms of juror misconduct—violating the confidentiality of deliberations, being improperly influenced by non-jurors, or investigating facts outside of those presented at trial
  o Court may dismiss juror or order a new trial
  o A juror may testify about whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear on a juror

Question 82

Trial by the Court

Answer 82

1. The court must make findings of fact and conclusions of law on the record at the close of evidence or in an opinion or memorandum of decision filed by the court
2. On appeal, a court’s findings of fact can be set aside only if clearly erroneous

Question 83

Judgment as a matter of law

Answer 83

1. Overview * Challenges the sufficiency of the evidence in a civil jury trial * Prior to submission to jury—party may file a motion for judgment as a matter of law (“directed verdict”) * After verdict and entry of judgment—party may renew their motion for judgment as a matter of law (motion for “judgment notwithstanding the verdict” or “JNOV”)
2. Motion for judgment as a matter of law (“directed verdict”) * The court must view evidence in light most favorable to the opposing party and draw all reasonable inferences from evidence in favor of opposing party * Timing—any time before the case is submitted to the jury
3. Renewed motion for judgment as a matter of law (“JNOV”) * If the court does not grant a directed verdict, movant can file a JNOV no later than 28 days after entry of judgment (jury discharge, if the issue was not decided by verdict) * Can be granted only on grounds raised in the pre-verdict motion * Court may: (i) allow judgment on the verdict; (ii) order a new trial; or (iii) direct the entry of judgment as a matter of law

Question 84

Judgment

Answer 84

a decree or order by a court that resolves the parties’ rights and demands for relief in a manner that permits it to be appealed

1. Agreement with pleadings * Generally—judgment should grant a party the relief to which it is entitled, even if not requested in its pleading * Default judgment—must not differ in kind or exceed amount demanded in pleadings
2. Costs—unless a federal statute, rule, or court order provides otherwise, the prevailing party is allowed court costs, other than attorney’s fees, without needing to file a motion
3. Attorney’s fees—unless a statute or court order provides otherwise, a claim for attorney’s fees that is not required by law to be proved at trial as an element of damages must be made by a motion filed within 14 days after entry of judgment

Question 85

Motion to amend or make additional findings (nonjury trial)

Answer 85

must be made within 28 days of entry of judgment; may be combined with a new trial motion

Question 86

Motion to alter or amend a judgment

Answer 86

must be made within 28 days of the entry of judgment

Question 87

Motion for new trial

Answer 87

the court may grant a new trial, with respect to some or all issues, to prevent a miscarriage of justice

Question 88

Alteration of or relief from judgment

Answer 88

1. Relief from judgment or order—court can relieve party of final judgment within a reasonable time, and no later than one year following judgment entry for (i) mistake, inadvertence, surprise, or excusable neglect, (ii) newly discovered evidence (not previously discovered through reasonable diligence), or (iii) fraud, misrepresentation, or misconduct by opposing party
2. Other remedies—a court may also: * Entertain an independent action to relieve a party from an order, judgment, or proceeding; * Grant relief to D who was not personally notified of the action; or * Set aside a judgment for fraud on the court

Question 89

Appeals

Answer 89

1. Notice of appeal—generally must be filed with the district clerk within 30 days after the judgment or order being appealed is entered
2. Final judgment rule—the federal courts of appeals have jurisdiction over appeals of the final judgments of the district courts * If more than one claim is presented in case, or there are multiple parties, a district court may direct entry of a final judgment as to one or more issues/parties, but only if the court expressly determines that there is no just reason for delay
3. Standards of review

• Review of a trial court’s factual findings—clearly erroneous
• Review of legal rulings—de novo
• Review of discretionary rulings—abuse of discretion
• Review of a jury verdict—varies among jurisdictions

Question 90

Full faith and credit

Answer 90

If valid judgment is rendered by a court that has JX over the parties, and parties receive proper notice of the action and a reasonable opportunity to be heard, judgment will receive the same effect in other states as state where it was rendered

Question 91

Claim preclusion (res judicata)

Answer 91

1. Valid final judgment on the merits—court must have PJ and SMJ, D must have had proper notice and opportunity to be heard, court must have nothing further to do but order entry of judgment, and decision must be made on merits of claim/defense (rather than technical grounds)
2. Sufficiently identical claims—original and later-filed claim must be sufficiently identical to be barred under claim preclusion (federal “transactional” approach)
3. Sufficiently identical parties—P and D must be the same, and in the same roles, in both the original action and subsequently filed action

Question 92

Issue preclusion (collateral estoppel)

Answer 92

offensive use may be permitted

1. Requirements * Same issue—facts relevant to particular issue and applicable law must be identical * Actually litigated—the issue must have been actually litigated in the prior action * Final, valid judgment—first determination of issue was within authority of court that decided it and the determination was made in final decision on the merits * Essential to judgment—issue that constitutes a necessary component of the decision reached will be considered essential
2. Criminal prosecution * In favor of prosecution (preclusion)—issues determined in a criminal prosecution in favor of the prosecution are generally preclusive in a civil action against D based on the same conduct * In favor of D (no preclusion)—issues determined in a criminal prosecution in favor of D are not preclusive in a civil action against D based on the same conduct because P in the civil action was not a party to the criminal prosecution