Civil Procedure (MBE/MEE) Flashcards

Question

Personal Jurisdiction: General Jurisdiction

Answer 1

P can assert any claim against the D, even if it is unrelated to the D's contacts with the forum state. Bases for GJ are: * Physical presence within state * Domicile * Consent

Answer 2

Service of process on D while she is physically present in the state, except: * If the person was in state only to answer a summons, or * Persons brought to the state by **force** or **fraud**

Answer 3

If authorized by statute, a state has JX over person/corporation domiciled in state

Answer 4

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)

Answer 5

* **Relatedness Test**: 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 * 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)

Answer 6

Satisfied 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**

Answer 7

Minimum contacts require **purposeful availment** and **relatedness**

Answer 8

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

Answer 9

**Specific Jurisdiction**: Cause of action must **arise out of or relate** to a D’s contact with forum state, even if it’s the only contact **General Jurisdiction**: D must be domiciled in or have continuous and systematic contacts with the forum state

Answer 10

* **Partnerships**: Each partner is generally an agent of partnership * **Corporations**: Out-of-state corporation’s contacts with forum state doesn’t automatically establish JX over wholly-owned subsidiary unless it is parent’s alter ego or acting as agent * **Employees/agents**: contacts by nonresident employer’s agents/employees imputed to employer if acting within the scope of agency/employment (not usually applicable to independent contractors)

Answer 11

Once minimum contacts are established, court must still determine if maintenance of the action would “offend traditional notions of fair play and substantial justice.” Factors include: 1. **Interest of forum state** in adjudicating matter 2. **Burden on D** of appearing in case (less for corporation than individual) 3. **Interest of judicial system** in efficient resolution of controversies, and 4. **Shared interests of the states** in promoting common social policies

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

Answer 13

* K can be a significant factor in determining whether minimum contacts exist * Choice-of-law provisions are a significant factor as they establish that the nonresident purposefully availed herself to benefits of forum state’s laws

Answer 14

* 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**

Answer 15

* Determines only interests of parties toaction regarding property located in forum state (e.g., lien foreclosure or quiet title action), and not personally binding against D * **Due Process**: quasi-in-rem actions are subject to same minimum contact tests as specific jurisdiction. If the property is the subject of the suit, this suggests there will be minimum contacts.

Answer 16

* Authorizes nation-wide service of process, and service anywhere in the U.S. establishes PJ **Note**: When a statute contains a provision for nationwide service of process, this allows the court to attain personal jurisdiction.

Answer 17

Allows **service within 100 miles of federal courthouse**, even in another state, in two situations: * (i) For impleading third party-defendants under Rule 14; and * (ii) For joining necessary parties under Rule 19

Answer 18

When the P is suing under federal law and no state has PJ over the D, the federal court can exercise PJ so long as the **D has minimum contacts with the U.S. as a whole**.

Answer 19

* When a federal court with PJ over the D enters a judgment, that judgment is enforceable by a federal court in another state by seizure of the D's property located in that state * True even if D lacks minimum contacts with state enforcing judgment

Answer 20

Venue is proper in: * (i) District in which any D resides if all Ds reside in the state where the district is located; * (ii) Where a substantial part of the events or omissions occurred, or where the property is situated; or * (iii) If neither of above apply, venue is proper in a judicial district where any D is subject to PJ **Note**: A D can't assert improper venue when they are the one that removed the suit, thereby consenting to the court's venue

Answer 21

* **Individual**: Judicial district where D is domiciled * **Business Entity**: In every judicial district where D subject to PJ; or if P is a business entity, where principal place of business is located

Answer 22

* 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 district court. * **FQ**: New district court in another appellate circuit will apply federal law as interpreted by its court of appeals.

Answer 23

* Dismiss case or transfer case to proper district if in interest of justice * **DJ**: District court to which case is transferred applies choice-of-law rules of state in which it is located * **FQ**: New court will apply its own court of appeals' interpretation of law * **No PJ**: A court lacking PJ over D may transfer case to different venue

Answer 24

* **Suit against federal officer/employee in official capacity**: Venue proper where (i) any D resides, (ii) substantial portions of events occurred or property located, (ii) where P resides if no real property involved * **Federal Tort Claims Act**: Venue proper where (i) P resides, (ii) act/omission occurred * **Foreign resident**: Venue proper in any judicial district * **Foreign government**: Venue proper where (i) substantial events occurred or property is located, (ii) in federal district court of Washington, D.C. * **Multiparty, multiforum litigation**: Venue proper where (i) D resides, (ii) substantial part of accident occurred

Answer 25

* 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

Answer 26

* **Federal Question**: Federal substantive and procedural law controls, as well as federal common law * **Diversity Jurisdiction**: State substantive law and federal procedural law * **Supplementation Jurisdiction**: State substantive law for state-law claim. Ex. If court has FQJ over federal claim, and state claim can be exercised under SJ, court must apply state substantive law for state claim.

Answer 27

If there is valid federal statute on point when state and federal laws conflict: (1) Apply federal law (2) Before applying a Federal Rule, court must determine Rule is valid under Rules Enabling Act: Does the Federal Rule abridge, enlarge, or modify any substantive right? * If no, apply Federal Rule. * If yes, apply Federal Rule only if it incidentally affects a litigant's substantive rights.

Answer 28

Follow the Twin Aims of Erie: (1) To avoid forum shopping * Apply state law if failure to do so would lead to **different outcomes** in state and federal court (2) To avoid the inequitable administration of justice

Answer 29

* Elements of a claim or affirmative defense * Statute of limitations and tolling provisions * Burden of proof

Answer 30

* Judge/jury allocation * Assessment of attorney's fees * Equitable/legal determination

Answer 31

* Judge-made federal law that is created when there is no applicable federal statute or constitutional provision * Preempts any state or local law or rule

Answer 32

For **FQJ**, apply federal common law in following instances: * Admiralty cases * When U.S. is a party to case * Interstate disputes * Cases implicating relations with foreign countries * Cases in which government acts in proprietary role * When Congress left a gap in statutory scheme For **DJ**, apply when a "**uniquely federal interest**" is at stake and **significant conflict exists** between that interest and operation of state law.

Answer 33

Federal court must apply state's conflict-of-law rules * DJ: District court bound by conflict-of-laws rules of state in which district court is located to the extent that state's rules are valid under Full Faith and Credit and DPC

Answer 34

Within 90 days after filing of complaint

Answer 35

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 For **corporations/associations**: * To officer or agent, or * By following state law For **U.S. officer/employer in individual capacity**: * Must serve individual * Must also serve process on U.S. if basis for action is conduct that occurred in connection with duties performed on behalf of U.S. For **U.S. in civil action** * Must serve U.S. Attorney General as well as U.S. Attorney for district in which action has been filed * Don't need to serve agency in which action is based if action is filed against U.S. only **Note**: P can't personally serve summons and complaint on D.

Answer 36

* Request for waiver must be in writing annd must give D reasonable time of at least 30 days after request to return waiver * Waiver must state name of court and date request was sent; contain copy of complaint; two copies of waiver form; and prepaid means to return signed form * **Effect**: Extends time to service answer from 21 days (after service of process) to 60 days or 90 days if foreign (after waiver request sent)

Answer 37

* **Timing**: Effective for a limited time: **no longer than 14 days** unless good cause exists or adversary consents. * **Notice**: May be issued without notice if **immediate and irreparable injury** will result and movant's attorney certifies efforts made to give notice and why notice should not be required * **Order**: Must contain reason why it was granted, reasonable description of prohibited acts (without reference to complaint/other document), and specific terms. * **Review**: Not generally immediately appealable Note: If TRO is improperly granted for extended period of time without good cause, treat it as a 14 day period.

Answer 38

* Not an appealable interlocutory order unless it is extended beyond the period permit under Rule 65. * Under Rule 65, court is generally permitted to grant a TRO for a period of no more than 14 days in absence of existence of good cause or consent of adversary

Answer 39

If a TRO is issued without notice, the adverse party may appear and move to dissolve or modify the TRO (must give two days' notice unless court sets shorter time)

Answer 40

May be issued to a P if: 1. P is likely to **succeed on the merits** 2. P is likely to suffer **irreparable harm** in the absence of relief 3. **Balance of equities** is in P's favor, and 4. Injunction is in **public interest** Note: Notice must be provided to D

Answer 41

Same standard as for preliminary injunction but P must show actual success on the merits

Answer 42

* Filing generally occurs before service * Service generally within 90 days of filling

Answer 43

Must include * Short/plain statements of court’s SMJ * P’s claim establishing entitlement to relief, and * Demand for judgment for relief sought

Answer 44

* Fraud, mistake, or claims for special damages must be specially pleaded in a greater level of detail than is generally required in a complaint * Otherwise, need only provide short and plain statement of claim esetablishing entitlement to relief

Answer 45

May be used to raise: * Lack of SMJ * Lack of PJ (including both lack of power and defects in service of process) * Improper venue * Failure to state a claim upon which relief can be granted * Failure to join a necessary party * Forum non conveniens

Answer 46

* **General Rule**: Within 21 days of service * Lack of **SMJ**: Can be raised at any time * Lack of **PJ, improper venue, insufficient process or service**: Can be raised in pre-answer motion or answer, or within time to amend answer as of right; otherwise waived * **Failure to state a claim upon which relief can be granted** and **failure to join necessary/indespensable party**: Can be raised in any pleading, motion for judgment on pleadings, or at trial

Answer 47

* Complaint must allege sufficient facts that, if true, would “state a claim to relief that is plausible on its face” in order to defeat a motion to dismiss for failure to state a claim * Well-pleaded factual allegations are entitled to presumption of truth, but conclusory allegations of law are not entitled to presumption of truth * Must analyze if facts are plausible, not merely conceivable * Otherwise, resolve doubts/inferences in P's favor and view pleading in light most favorable to P

Answer 48

Court can consider only allegations and attached exhibits in the complaint

Answer 49

When a defendant files a MTD for failure to state a claim upon which relief can be granted and attaches materials outside the pleadings to the motion, the court must treat the motion as a summary judgment motion if the court considers such materials in reaching its decision on the motion.

Answer 50

* 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 * Complaint must state enough facts to raise reasonable expectation that discovery will reveal evidence of the necessary element * If facts in affidavits or discovery documents must be considered, must file for summary judgment instead of judgment on pleadings

Answer 51

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

Answer 52

* When pleading contains insufficient defense, or redundant, immaterial, impertinent, or scandalous material, court may order such defense or material stricken if **NOT relevant** to case

Answer 53

* **Lack of personal jurisdiction, improper venue, insufficient process/service of process**: If omitted from motion, subsequent pre-answer motion prohibited and deefenses waived * **Failure to state a claim, failure to state legal defense, failure to join required party**: If omitted from motion, subsequent pre-answer motion prohibited but defenses **not waived** at trial and can assert in **answer or post-answer motion** * **Lack of subject matter jurisdiction**: Subsequent pre-answer motion allowed and defense never waived

Answer 54

* **No Motion to Dismiss**: 21 days after being served with summons and complaint (or 60/90 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

Answer 55

* **Admission/Denial**: Answer must admit/deny P's allegations, or plead lack of sufficient knowledge (with reasonable investigation) * **Affirmative Defenses**: D must state them or they are deemed waive

Answer 56

P must respond to D's answer within 21 days after being served with order to reply

Answer 57

May be amended once at any time within 21 days of service of the pleading or within 21 days of the defendant’s response, if there is one

Answer 58

Court should freely give leave to amend a pleading when justice so requires and will not result in undue prejudice or violation of due process to opposing party **Note**: Court violates due process when it allows new party to be added in amended pleading but does not permit new party to respond

Answer 59

Key date for purposes of tolling the SOL is the date of the original pleading, rather than date of the amendment: * If SOL has NOT yet run (still open), this doctrine does not matter. * If SOL has run out, doctrine of relation back determines whether amended pleading is allowed (relates back) or time-barred (does not relate back).

Answer 60

Relates back to date of original pleading if amendment asserts claim/defense that arose out of **same conduct, transaction, or occurrence** as original pleading

Answer 61

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 receives **notice** of action **within 90 days** after original complaint filed * D knew or should have known about action but for **mistake** concerning proper party’s identity

Answer 62

Within 14 days after service of amended pleading or time left on original pleading, whichever is later

Answer 63

* 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 * **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 * **Safe Harbor**: Requires party serving sanctions motion to refrain from filing it for 21 days after serving it to allow a violation to be corrected (e.g., by dismissing a claim)

Answer 64

Governed by Rule 20. Any number of Ps/Ds may join if: 1. They assert claims arising out of the **same transaction(s) or occurrence(s)** 2. There is a **common question of law or fact** **Note**: In order to join Ds in a single action, P's right to relief must be asserted against them jointly, severally, or in the alterantivew ith respect to or arising out of the same transaction or occurrence.

Answer 65

**Diversity**: No party can be joined whose presence would destroy **complete diversity**, even if other joinder rules are satisfied **Amount in Controversy**: SJ is permitted for JX amount less than or equal to $75,000 if in a suit by multiple Ps against a single D, and one P has a claim that exceeds $75k. Otherwise, parties must meet $75k AIC requirement.

Answer 66

Governed by Rule 19. **Necessary parties** MUST be joined if feasible (will not deprive court of SMJ, i.e., DJ, and court can exercise PJ, including by using bulge provision) If a necessary party CANNOT be joined, court decides whether to continue without necessary party or dismiss whole suit (i.e., necessary party is an **indespensable party**)

Answer 67

Necessary for just adjudication because: * Absent that party, **complete relief cannot be accorded** to the existing parties; * **Necessary party has an interest** in the subject of the litigation which will be impeded by this litigation; or * There is a **substantial risk of double or inconsistent liability** imposed on others if party is not brought into the case. Note: A potential D who may be jointly and severally liable is not a necessary party (i.e., potential tortfeasors facing joint and several liability)

Answer 68

* No supplemental jurisdiction for either permissive or intervention as of right when jurisdiction is based on DJ. * Intervenors must satisfy complete diversity and have claims that exceeds $75k.

Answer 69

Governed by Rule 24. Intervention as of right is available when: * Nonparty has interest in property or transaction that is subject matter of action * Disposition of action may impair nonparty's interest; and * Nonparty's interest not adequately represented by existing parties

Answer 70

May be allowed whenever: * Movant has conditional right to intervene under federal statute, or * Movant's claim/defense and original action share **common question of law or fact**

Answer 71

* **Amount in Controversy**: Need only be $500 * **Diversity**: Minimal diversity (i.e., when any two claimants are from different states) * **Service of Process**: Authorizes nationwide service of process, which counts for PJ * **Venue**: Proper in any district where any claimant resides

Answer 72

* 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 * D: Ds exposed to similar liability may seek interpleader through a cross-claim or counterclaim * Normal DJ requirements, unlike statutory interpleader

Answer 73

Court must already have JX over all parties, and for DJ, only stakeholder needs to be diverse from claimants

Answer 74

As between same P and same D, all claims may be joined (need not be related)

Answer 75

* DJ: P can aggregate all claims against same D to exceed jurisdictional minimum * FQJ: If diversity is lacking for additional state-law claims, additional state-law claims can be joined only if they are covered by SJ

Answer 76

Must be asnwered within 21 days of service

Answer 77

* A counterclaim is compulsory if it arises out of the **same transaction or occurrence** as the claim to which it responds. * **SMJ**: By definition court will have SJ so don't need independent SMJ from original claim * **Lost if not pleaded** in current action

Answer 78

* Counterclaim that **does not** arise out of same transaction or occurrence * **SMJ**: Court must have independent DJ or FQJ

Answer 79

Must be answered within 21 days of service

Answer 80

Claim against co-party may be asserted if they arise out of **same transaction or occurrence** that is SM 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

Answer 81

* D may make a third-party claim against a nonparty for all or part of defending party’s liability for original claim made by P against D * BUT, if D is only raising third-party's conduct as a defense to his own liability by arguing the third-party is solely liable, this is not a proper third-party claim

Answer 82

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

Answer 83

* D may make a third-party claim against a nonparty for all or part of defending party’s liability for original claim made by P against D * BUT, if D is only raising third-party's conduct as a defense to his own liability by arguing the third-party is solely liable, this is not a proper third-party claim

Answer 84

* **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** * **PJ**: Bulge provision applies

Answer 85

A party may voluntarily dismiss a crossclaim, counterclaim, or third-party claim without a court order when: * appearing parties signed a stipulation of dismissal, or * claimant unilaterally files a notice of dismissal (1) before a responsive pleading (e.g., answer) is served or (2) if a responsive pleading is not served, before evidence is introduced at a hearing or trial.

Answer 86

* **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 reps must be typical of class * **Adequacy** Reps must fairly and adequately protect interests of class Note: Class actions can be maintained in federal court, despite state law barring class actions to enforce statutory damages claims, if action is authorized by Rule 23.

Answer 87

Three situations when class can be certified: * **Risk of prejudice**: Either to class opponent or class members (**notice not required**/**no right to opt out**) * **Final equitable relief**: Class shares general claim and injunctive or declaratory relief is sought; a single, indivisible remedy would provide relief to each class member (**notice not required**/**no right to opt out**). Can seek **incidental monetary damages** but not **individualized monetary relief**. * **Common legal/factual questions**: Must predominante over questions affecting individual members (**notice required**/**right to opt out**)

Answer 88

* **FQJ**: Applies * **DJ**: Class reps must be diverse from class opponents and at least one P must meet $75k AIC requirement

Answer 89

* Allows very large class actions, involving at least 100 members with more than $500 million at stake * Only minimal diveristy required (i.e., any P diverse from any D)

Answer 90

Requires court approval and direct notice to all class members bound by proposed settlement or dismissal

Answer 91

Valid judgment generally binds all members of class **except those who opt out**

Answer 92

Generally within 14 days after parties' discovery conference

Answer 93

Subject to certain exceptions, must disclose: * Information regarding individuals having discoverable information, * Documents supporting claims/defenses, * Computation of damages claimed, or * Applicable insurance agreement(s)

Answer 94

At least 90 days before trial or 30 days after disclosre of opposing party's expert evidence on same subject matter

Answer 95

* Names of expert witnesses who will be called at trial * Qualifications, publications, opinions, information on which they will base opinions, other cases in which they ahve testified, and compensation

Answer 96

* At least 30 days before trial * Objections must be made within 14 days after disclosure, or they are waived unless excused by court for good cause

Answer 97

Evidence to be presented at trial other than for impeachment, such as: * Witness list by testimony or deposition * Documents * Exhibits

Answer 98

* At final pretrial conference before trial, judge will enter final pretrial order that sets forth plan of trial * Court may amend and modify this order only to prevent manifest injustice

Answer 99

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

Answer 100

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 * Need not be admissible to be discoverable

Answer 101

Work product rule protects: 1. Documents and things; 2. Prepared in **anticipation of litigation** or for trial 3. By or for another party or the party's representative Work-product is not discoverable unless party seeking discovery shows: 1. A **substantial need** for the materials; and 2. That the equivalent information cannot be obtained without **undue hardship**

Answer 102

* Testifying expert: Discovery of report always permitted; but not draft of expert reports or privileged attorney-expert communications. All-expert communications are privileged unless they realte to expert's compensation or identify facts, data, or assumptions provided by attorney that expert considered or relied on in forming his opinions. * Non-testifying expert: No discovery of report, facts and opinions held by expert, or expert's identity absent exceptional circumstances

Answer 103

Parties must confer at least 21 days before scheduling conference to consider: * Nature and basis of claims/defenses and possibility of settlement * Automatic disclosures, * Preserving discoverable information, and * Developing discovery plan

Answer 104

Can take place any time after discovery conference and limited 10 per party, unless showing of good cause to court

Answer 105

* 25 written interrogatories per party * May only be used against a party * Must be fully and separately answered under oath unless timely objected to with specificity, otherwise admitted * Responses required within 30 days

Answer 106

Party has 30 days from being served with request or 30 days from parties’ first rule 26(f) conference if the request was served prior to that conference to respond

Answer 107

* Court may order person to submit to physical/mental exam if physical/mental condition is **in controversy** * Available only against a **party** * Only for **good cause** shown

Answer 108

* Party can serve written request for admission of any relevant, nonprivileged matters relating facts of case * Failure to respond within 30 days is treated as an admission

Answer 109

* Issued from court where action is pending, * Used to command a nonparty to take action (e.g., attend a trial, testify) * Deposition of a nonparty witness requires a subpoena

Answer 110

* 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) * If motion to compel is granted, cost of compelling discovery is often placed on opposing party unless court finds refusal was substantially justified

Answer 111

Court can immediately impose sanctions in three instances of complete default: 1. Failure to attend one's own deposition (e.g., award reasonable expenses of attending deposition); 2. Failure to respond to interrogatories; and 3. Failure to respond to a request for documents or things

Answer 112

* If information that should have been preserved is lost because a party failed to take reasonable steps to preserve it, court may order measures/sanctions to cure prejudice (ex. prohibiting party from introducing certain evidence) * If party acted with **intent to deprive** another party of the information, instruct jury that it may or must **presume that information was unfavorable** to party or dismiss action or enter a default judgment

Answer 113

* Ordinarily **without prejudice** * P has a right to a voluntary dismissal **once** at any time prior to D serving an answer or a motion for summary judgment * After D has filed an answer or motion for summary judgment, or if P has already voluntarily dismissed once, P must seek leave of court for dismissal without prejudice **Note**: If P's first action was voluntarily dismissed by a **state court**, then P seeks voluntary dismissal in subsequent federal action, this **counts towards the two-dismissal** rule. Does not need to be both in federal court. **Note**: Signed stipulation of dismissal by parties does not equal a voluntary dismissal and does not trigger two-dismissal rule.

Answer 114

* Typically, **with prejudice** (i.e., an adjudication on the merits) * Involuntary dismissal for lack of jurisdiction, improper venue, or failure to join an indespensable party is without prejudice * Involuntary dismissal for * May be imposed for P's failure to prosecute or failure to comply with FRCP/court order

Answer 115

* May be filed anytime until 30 days after close of all discovery * Nonmovant generally must be given sufficient notice to obtain discovery

Answer 116

* 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 light most favorable to nonmoving party and resolve all doubts in favor of nonmoving party **Note**: Reviewed de novo

Answer 117

* Movant has burden of persuasion to show prima facie case * Then, burden shifts to opposing party to set forth specific evidence showing the existence of a genuine issue of fact (cannot just merely rely on allegations or denials in his original pleading)

Answer 118

* Judgment may be stated on the record or in an opinion or memorandum * Even if no opinion or memorandum is issued, judge made findings of fact will not be overturned unless clearly erroneous

Answer 119

Civil litigants in federal court may demand a jury trial for any legal claim in which the amount in controversy exceeds $20. Demand must be: * (1) served within 14 days after last pleading directed to issue is served, and * (2) filed with court within a reasonable time thereafter. **Note**: 7th Amendment is not incorporated against the states. State law determines whether parties have right to jury trial in civil cases.

Answer 120

For state-law claims in diversity actions, federal law will determine whether there is a right to a jury trial

Answer 121

* If case contains a mix of legal and equitable claims, right to trial by jury is evaluated for each claim * 7th Amendment: If action involves legal and equitable claims raise issues of fact common to both, jury must be permitted to determine these issues by trying legal claim first. After, court determines equitable claim, but it is bound by jury’s findings of fact on the legal claim.

Answer 122

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

Answer 123

* At least six and no more than 12 * Once selected, a juror must participate in the verdict unless dismissed for good cause

Answer 124

* Court will allow three peremptory challenges (no need to explain/justify) for each party in civil cases, except not for reasons of race or gender * Unlimited number of challenges are permitted for cause

Answer 125

Court must provide an opportunity to object to proposed instructions: * Objections must be made on the record (**preserved**) for stated reasons BEFORE jury retires to deliberate * Only a **timely** objection preserves issue for appeal

Answer 126

Unless the parties stipulate otherwise: * Verdict must be **unanimous** * Verdict must be returned by a jury of **at least six jurors** **Note**: Parties can agree to non-unanimous verdict

Answer 127

Court may dismiss juror or order new trial if: * **Violating confidentiality** of deliberations * Being **improperly influenced** by non-jurors * Investigating facts outside of those presented at trial Note: Juror may testify about any extraneous prejudicial information/outside influence.

Answer 128

* **Standard**: Viewing the evidence in the light most favorable to the non-moving party, whether the evidence in the record is **legally sufficient** for a reasonable jury to find in the nonmovant's favor * Judge may not consider credibility of witness or evaluate weight of evidence * **Timing**: Any time before case is submitted to jury

Answer 129

* If court does not grant a directed verdict, movant can file a JNOV no later than **28 days after entry of judgment** * Can be granted only on grounds raised in pre-verdict motion * Court cannot extend deadline to file * 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

Answer 130

* Must be made within 28 days of entry of judgment * May be combined with new trial motion

Answer 131

Must be made within 28 days of the entry of judgment

Answer 132

Must be made no later than 28 days after entry of judgment. May be granted in discretion of court for many reasons, including: * Legal errors * Newly discovered evidence * Prejudicial misconduct by a lawyer, party, juror * Judge concludes verdict is against weight of evidence

Answer 133

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

Answer 134

Must be filed with district clerk within 30 days after judgment or order being appealed is entered **Note**: Federal government agency, or officer/employee gets 60 days to file notice of appeal with district court clerk

Answer 135

* Federal courts of appeals have jurisdiction over appeals of the final judgments of the district courts * A final judgment resolves ALL the claims of ALL parties * Judgment becomes final when entered by clerk on court's docket * Court may enter partial final judgment

Answer 136

Clearly erroneous

Answer 137

Abuse of discretion

Answer 138

(1) **Valid final judgment on the merits** (2) **Sufficiently identical claims**: Claims are identical if they arise from the same transaction, occurrence, or series * Consider whether the facts form a convenient trial unit and whether treating the facts as a unit conforms to the parties' expectations (3) **Sufficiently identical parties** * P and D must be the same, and in same roles. * Precedecessor and successors in interest can count.

Answer 139

* When a judgment is in a party’s favor, entire claim merges with the judgment and is extinguished. * **Transactional approach**: A subsequent claim w/r/t all or any part of the transaction, or series of connected transactions, out of which original action arose is barred

Answer 140

1. **Same issue** 2. **Actually litigated** 3. **Final, valid judgment** 4. **Essential to judgment** **Note**: A deemed admitted allegation based on a failure to deny an allegation does not constitute an issue being actually litigated

Answer 141

* In Favor of Prosecution: Issue preclusion can apply * In Favor of D: No issue preclusion

Answer 142

**Remittur**: D's request to reduce jury award of excessive damages * P must be offered choice between: reduced damages or new trial on damages **Additur**: P's request to increase jury award of inadequate damages * **Never allowed**

Answer 143

* **Answers consistent with verdict**: Judge must enter judgment consistent with verdict and answers * **Answers inconsistent with verdict**: Judge must (i) order new trial, (ii) direct jury to further consider its answers and verdict, or (iii) disregard verdict and enter judgment consistent with answers * **Answers inconsistent with each other and verdict**: Judge must (i) order new trial or (ii) direct jury to further consider its answers and verdict

Answer 144

* Must file request by close of evidence **unless** earlier, reasonable deadline set by court * May file request after close of evidence when: (i) request relates to issue that party could not have **reasonably anticipated** by deadline, or (ii) court permits late submission related to any issue

Answer 145

**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. Default judgment must be entered by the **clerk** when: * P's claim is for a **sum certain**, * P's request for default judgment includes an **affidavit** establishing the amount due, * D failed to appear, and * D is not legally incompetent or a minor **Notice**: If party has already appeared, party must be served with written notice of application for default judgment at least 7 days before the hearing Note: A default judgment is a final judgment for purposes of claim preclusion.

Answer 146

Party can move for extraordinary relief from default judgment if within one year they assert the following grounds: * Judgment was due to court's or party's mistake, inadvertence, suprise, or exclusable neglect (requires movant also demonstrate a **meritorious defense** but this is not in itself sufficient); * Movant discovered new evidence; or * Nonmovant engaged in misrepresentation, misconduct, or fraud * Did not ahve subject matter jurisdictoin * Did not have personal jurisdiction * Violated due process

Answer 147

Interlocutory review is discretionary and may be available when: * (i) trial court certifies in writing that interlocutory order involves a **controlling question of law** as to which there is **substantial ground for difference of opinion**, and immediate appeal from the order may **materially advance** the ultimate termiantion of the litigation; AND * (ii) court of appeals agrees to allow the appeal

Answer 148

* Can appeal when there is a final judgment on one claim, but other claims in same suit remain if there is **no just reason for delay** * Reasons can include: Hardship, undue burden on appellate court of having to hear case twice, etc.

Answer 149

Applies to communications covered by A-C privilege and information provided under work-product doctrine. Disclosure of inadvertant communications or information does not waive A-C privilege or work-product privilege if: * Disclsoure was made in a federal proceeding or to a federal agency (**if in state court, state law applies**); * Disclosure was inadvertent; * Privilege holder took reasonable steps to prevent disclosure; and * Privilege holder promptly took reasonable steps to rectify the error