Civpro Flashcards

Question 1

Q

THE BASICS
3 requirements for federal court jurisdiction

[ federal court jurisdiction ]

Answer

A

Subject matter jurisdiction = authority over case
Personal jurisdiction = authority over parties
Venue = appropriate court in system

Question 2

Q

BASIC IDEA
the court’s power over the parties

[ personal jurisdiction ]

Answer

A

P = court automatically has power over P b/c P filed case

D = the big Q aka CAN P SUE D IN THIS STATE?

Question 3

Q

BASIC IDEA
two-step analysis

[ personal jurisdiction ]

Answer

A

whether there is PJ is 2-step analysis

satisfy a state statute AND
satisfy the constitution (DP bb)

dumb note = this is the same analysis in federal and state court
(so whether fed ct in state x has PJ over D is assessed exactly the same as whether state court in state x would)

Question 4

Q

APPLYING THE ANALYSIS
statutory step

[ personal jurisdiction ]

Answer

A

Each state free to have its own statutes for in personam jurisdiction
– most states have LONG-ARM = statute reaches the full extent of the Constitution, so the statutory grant is the same as the constitutional test

TEST TIP$

content of state statute not testable on MBE
on the UBE/MEE, just mention that you need a state statute and move to the constitutional analysis.

Question 5

Q

APPLYING THE ANALYSIS
constitutional analysis

[ personal jurisdiction ]

Answer

A

key inquiry = does D have SUCH MINIMUM CONTACTS w/ the forum so jurisdiction does NOT OFFEND TRADITIONAL notions of FAIR PLAY and SUBSTANTIAL JUSTICE?

to determine this, assess a set of factors as to the

(1) CONTACT
(2) RELATEDNESS
(3) FAIRNESS

Question 6

Q

CONSTITUTIONAL ANALYSIS
contact

[ personal jurisdiction ]

Answer

A

must be relevant contact btwn D and forum state

TWO factors

Purposeful Availment
Foreseeability

Question 7

Q

CONSTITUTIONAL ANALYSIS
contact - purposeful availment

[ personal jurisdiction ]

Answer

A

rule = contact must result from purposeful availment (of D)

definition = D’s voluntary act
aka D must reach out to or target the forum

5 key examples =

marketing product in forum
using roads in the forum
establishing domicile in forum
traveling in forum
sending tortious email into forum

Question 8

Q

CONSTITUTIONAL ANALYSIS
contact - can D purposefully avail w/o setting foot in the forum?

[ personal jurisdiction ]

Answer

A

YES

by causing an EFFECT in the forum

Question 9

Q

CONSTITUTIONAL ANALYSIS
contact - foreseeability

[ personal jurisdiction ]

Answer

A

must be foreseeable that D could get sued in this forum

Question 10

Q

CONSTITUTIONAL ANALYSIS
relatedness

[ personal jurisdiction ]

Answer

A

rule = must have relatedness btwn D’s contact and P’s claim

once we arguably have a contact btwn D and forum, ask =
does P’s claim arise from D’s contact with the forum?
(aka does the contact include the very thing that harmed P)
- yes = SPECIFIC PJ
- no = maybe GENERAL PJ

Question 11

Q

CONSTITUTIONAL ANALYSIS
relatedness - specific PJ

[ personal jurisdiction ]

Answer

A

where P’s claim arises from D’s contact with the forum =
court might uphold PJ even if D does not have much contact with the forum
(depending on whether PJ would be FAIR)

Question 12

Q

CONSTITUTIONAL ANALYSIS
relatedness - general PJ

[ personal jurisdiction ]

Answer

A

if P’s claim does not arise from D’s contact with the forum = jurisdiction is okay ONLY IF court has general PJ

to have general PJ = D must be AT HOME IN THE FORUM

if court has general PJ = D can be sued there for a claim that arose anywhere in the world

Question 13

Q

CONSTITUTIONAL ANALYSIS
relatedness - general PJ
» where is a human subject to general PJ?

[ personal jurisdiction ]

Answer

A

human is subject to general PJ
where she is @ HOME in the forum
which = the state she is DOMICILED

Question 14

Q

CONSTITUTIONAL ANALYSIS
relatedness - general PJ
» where is a corporation subject to general PJ?

[ personal jurisdiction ]

Answer

A

corporation is subject to general PJ
where its activity is so SYSTEMATIC and CONTINUOUS such that company is @ HOME

2 possibilities where corp is always @ home

where INCORPORATED
where it has its PPB (principal place of biz, you idiot)

Question 15

Q

CONSTITUTIONAL ANALYSIS
@ home in forum - key takeaways

[ personal jurisdiction ]

Answer

A

D who is @ home in forum can be sued there for clam that arose anywhere in the world = general PJ

but D who is NOT @ home in forum can be sued there ONLY for claim arising from those activities = specific PJ

Question 16

Q

CONSTITUTIONAL ANALYSIS
fairness

[ personal jurisdiction ]

Answer

A

assessing whether jurisdiction would be fair (or reasonable) under the circumstances

fairness factors addressed ONLY in SPECIFIC PJ cases (not general PJ, once we find D is @ home, we done)

factors determining fairness in specific PJ case =

burden on D and witnesses
state’s interest
plaintiff’s interest

Question 17

Q

CONSTITUTIONAL ANALYSIS
fairness - burden on D and witnesses

[ personal jurisdiction ]

Answer

A

DP does NOT guarantee the suit will be in most CONVENIENT forum for D

even if it’s hard for D to travel to/get her witnesses to the forum, forum is constitutionally proper
UNLESS D can show that it puts her @ SEVERE DISADVANTAGE in the litigation
(but it’s a very difficult burden to meet b/c relative wealth of parties is not determinative)

Question 18

Q

CONSTITUTIONAL ANALYSIS
fairness - state’s interest

[ personal jurisdiction ]

Answer

A

forum state may want to provide a courtroom for its citizens, who are allegedly being harmed by out-of-staters

NOTE = this is always true if P is citizen of the forum

Question 19

Q

CONSTITUTIONAL ANALYSIS
fairness - P’s interest

[ personal jurisdiction ]

Answer

A

maybe injured and wants to sue at home

Question 20

Q

CONSTITUTIONAL ANALYSIS
summary

[ personal jurisdiction ]

Answer

A

CONTACT
Purposeful Availment + Foreseeability
RELATEDNESS
General v. Specific
FAIRNESS (Specific Only)
Burden/Convenience +
State’s Interest + P’s Interest

Question 21

Q

BASIC IDEA
D entitled to notice of suit

[ notice + service of process ]

Answer

A

as a constitutional matter, notice must be REASONABLY CALCULATED, under all the circumstances, TO APPRISE interested parties of the action

in typical lawsuit, MUST have both of TWO documents
1. summons
2. copy of complaint
= which, together, are called PROCESS

Question 22

Q

BASIC IDEA
summons

[ notice + service of process ]

Answer

A

= formal notice of suit and time for response

Question 23

Q

BASIC IDEA
how do you get the summons?

[ notice + service of process ]

Answer

A

present it to the clerk for signature and seal

Question 24

Q

WHO
can serve process?

[ notice + service of process ]

Answer

A

any NONPARTY who is at least 18 YEARS OLD

process server need not be appointed by court

Question 25

Q

WHEN TO SERVE
if D is to be served in US, service it to take place within how long?

[ notice + service of process ]

Answer

A

no more than 90 days after filing of complaint

Question 26

Q

HOW TO SERVE
on individual in US

[ notice + service of process ]

Answer

A

FOUR ways to serve on an INDIVIDUAL in US =

personal service
substituted service
service on D’s agent
state law methods

Question 27

Q

HOW TO SERVE
on individual in US by personal service

[ notice + service of process ]

Answer

A

Papers are given to D personally ANYWHERE

Question 28

Q

HOW TO SERVE
on individual in US by substituted service

[ notice + service of process ]

Answer

A

Valid process if served

@ D’s usual abode
on someone of suitable age/discretion who resides there

Question 29

Q

HOW TO SERVE
on individual in US by substituted service
» what qualifies as D’s usual abode?

[ notice + service of process ]

Answer

A

= where he’s living now
(like summer home)
aka need not reside there every day of year to qualify

Question 30

Q

HOW TO SERVE
on individual in US by substituted service
» must person on whom service is made be related to D?

[ notice + service of process ]

Answer

A

no, just must RESIDE at D’s usual abode (and be of suitable age/discretion)

Question 31

Q

HOW TO SERVE
on individual in US by service on D’s agent

[ notice + service of process ]

Answer

A

Process can be delivered to D’s agent

= valid if receiving service is IN SCOPE OF AGENCY

Question 32

Q

HOW TO SERVE
on individual in US by service on D’s agent
» in federal court, can we use substituted or agent service even if personal service would be possible?

[ notice + service of process ]

Answer

A

[Obama voice] YES WE CAN, YES WE CAN

Question 33

Q

HOW TO SERVE
on individual in US by state law methods

[ notice + service of process ]

Answer

A

can use methods for serving process that are permitted by state law of either

a. state where the federal court sits OR
b. state where service is made

key example of how state law might apply = allow service of process by MAIL

Question 34

Q

HOW TO SERVE
on biz/org in US

[ notice + service of process ]

Answer

A

Officer, managing or general agent

2. State law methods

Question 35

Q

HOW TO SERVE
on biz/org in US by officer/managing/general agent

[ notice + service of process ]

Answer

A

Deliver a copy of the summons and of the complaint to such a person

Question 36

Q

HOW TO SERVE
on biz/org in US by state law methods

[ notice + service of process ]

Answer

A

Can use methods for serving process permitted by state law of either

a. state where the federal court sits OR
b. state where service is made.

Question 37

Q

HOW TO SERVE
on minor or incompetent person in US

[ notice + service of process ]

Answer

A

use any method permitted by STATE LAW of state WHERE SERVICE is to BE MADE

Question 38

Q

HOW TO SERVE
in a foreign country

[ notice + service of process ]

Answer

A

May use method allowed by INTERNATIONAL AGRMNT
(ughhhh, like Hague Convention)

Or if there’s no such agreement on point, options =

As directed by the American court
If reasonably calculated to give notice
1. Method allowed by the foreign country’s law
2. Method directed by foreign official in response to a letter of request (letter rogatory) from the American court
3. Personal service in the foreign country (unless prohibited by its law)
4. Mail sent by clerk of American court, requiring signed receipt (unless prohibited by foreign country’s law)

(#4 is most popular option)

Question 39

Q

WAIVER OF FORMAL SERVICE OF PROCESS
tell me bout it

[ notice + service of process ]

Answer

A

Mail to D
a notice and request to waive formal service, including
- a copy of the complaint and
- two copies of a waiver form,
- with a prepaid means of returning the form
If D executes and mails waiver form to P
within 30 days if D in US
or 60 days if D is outside US
= D waives formal service of process

NOTE = Can be used for individuals AND entities

Question 40

Q

WAIVER OF FORMAL SERVICE OF PROCESS
if D waives formal service of process, does D waive any defense like lack of PJ?

[ notice + service of process ]

Answer

A

no, you psycho, this ONLY waives formal service of process

Question 41

Q

WAIVER OF FORMAL SERVICE OF PROCESS
when D signs and mails the waiver form back to P, what does P do?

[ notice + service of process ]

Answer

A

files it in court = @ which point it is effective

aka for timing purposes, act as though D was served w/ process on day P filed waiver form in court

Question 42

Q

WAIVER OF FORMAL SERVICE OF PROCESS
failure to return waiver form

[ notice + service of process ]

Answer

A

if D fails to return the waiver form, then P serves D personally or by substituted service
= D must pay cost of the service if D didn’t have good cause

Question 43

Q

PROVING SERVICE OF PROCESS
report/filing

[ notice + service of process ]

Answer

A

unless service is waived, process server files report with court detailing how service was made

if server was a CIVILIAN, report is by AFFIDAVIT
= sworn statement, under oath

Question 44

Q

PROVING SERVICE OF PROCESS
if process server fails to file this report, does that affect the validity of service?

[ notice + service of process ]

Answer

A

http://nooooooooooooooo.com/

Question 45

Q

GEOGRAPHIC REACH OF SERVICE
where may process be served?

[ notice + service of process ]

Answer

A

process may be served

a. within the state in which the federal court sits or
b. served outside that state if state law allows

(that’s why assessment of whether we have PJ is same for fed ct as it is for state ct)

Question 46

Q

IMMUNITY
D is present in State X to appear as a party, witness, or attorney in a different civil case in State X. Can D be served with process for a civil case in federal court in State X?

[ notice + service of process ]

Answer

A

NO, she is immune from service of process

Question 47

Q

SERVICE OF OTHER DOCUMENTS (NOT PROCESS)
suh d00d

[ notice + service of process ]

Answer

A

still need service but don’t need summons or to do so formally

served by delivering or mailing docs to party’s attorney (or pro se party)

examples of non-process docs =
answer, other pleadings, motions, discovery

Question 48

Q

SERVICE OF OTHER DOCUMENTS (NOT PROCESS)
email

[ notice + service of process ]

Answer

A

can serve non-process documents by email IF party AGREES

Question 49

Q

SERVICE OF OTHER DOCUMENTS (NOT PROCESS)
when is service of other documents deemed complete?

[ notice + service of process ]

Answer

A

when they are mailed (upon dispatch)

aka MAILBOX RULE IS BACK BB

Question 50

Q

BASIC IDEA
definition

[ subject matter jurisdiction ]

Answer

A

SMJ is about the court’s power over the CASE

Question 51

Q

BASIC IDEA
scope of fed v. state court jurisdiction

[ subject matter jurisdiction ]

Answer

A

Federal courts can only hear certain kinds of cases. What about state courts? As a general rule, they can hear any kind of case. They have “general” SMJ.

Question 52

Q

BASIC IDEA
Are there cases state courts cannot hear?

[ subject matter jurisdiction ]

Answer

A

Cases under a few federal laws must be brought in federal court
(examples = patent infringement, bankruptcy, some federal securities and antitrust claims)

But most cases arising under federal law can be heard by state courts

Question 53

Q

BASIC IDEA
2 main types of cases that can be heard in federal court

[ subject matter jurisdiction ]

Answer

A

fed courts have LIMITED SMJ

diversity of citizenship
(includes alienage)
federal question

Question 54

Q

BASIC IDEA
can parties consent to SMJ?

[ subject matter jurisdiction ]

Answer

A

NO (means no)

Question 55

Q

DIVERSITY/ALIENAGE CASES
2 requirements for diversity of citizenship cases

[ subject matter jurisdiction ]

Answer

A

The case is either
(a) between citizens of different U.S. states (diversity) or
(b) between a citizen of a U.S. state and a citizen of a foreign country (alien- age)

AND

The amount in controversy EXCEEDS $75,000

Question 56

Q

DIVERSITY/ALIENAGE CASES
complete diversity rule

[ subject matter jurisdiction ]

Answer

A

no good if ANY P is citizen of the same state as ANY D

aka MATCH ACROSS THE v. DESTROYS DIVERSITY

Question 57

Q

DIVERSITY/ALIENAGE CASES
alienage test tip + green card special rule

[ subject matter jurisdiction ]

Answer

A

alien admitted to US for permanent residence who is domicile in US state will not be considered citizen of that state
(aka never invokes diversity)
BUT a special rule prohibits alienage if a green card alien is domiciled in the same US state as a litigant on the other side of the case

TE$T TIP = bar exam may refers to alienage as “diversity of citizenship,” which is fine b/c it’s a subset of diversity of citizenship jurisdiction

Question 58

Q

DIVERSITY/ALIENAGE CASES
citizenship of natural person
» for human US citizen, what is the state of her citizenship?

[ subject matter jurisdiction ]

Answer

A

state where she’s DOMICILED

Question 59

Q

DIVERSITY/ALIENAGE CASES
citizenship of natural person
» is there such a thing as a human without a domicile?

[ subject matter jurisdiction ]

Answer

A

NOPE, ya dunce. What would you even call a person without a domicile, an agentess????

aka everyone has a domicile, and you retain it until you change it

Question 60

Q

DIVERSITY/ALIENAGE CASES
citizenship of natural person
» can a person have more than one domicile at a time?

[ subject matter jurisdiction ]

Answer

A

no, you cannot, don’t be greedy; it’s unseemly

= a human can be a citizen of only one state at a time

Question 61

Q

DIVERSITY/ALIENAGE CASES
citizenship of natural person
» how do you establish a new domicile?

[ subject matter jurisdiction ]

Answer

A

TWO requirements =

PHYSICAL PRESENCE
INTENT to REMAIN INDEFINITELY
(aka to make it your home for foreseeable future)

Question 62

Q

DIVERSITY/ALIENAGE CASES
citizenship of natural person
» how do courts determine intent to remain indefinitely for purpose of establishing domicile?

[ subject matter jurisdiction ]

Answer

A

courts look to all relevant factors

examples =

taking a job
buying a house
joining civic organizations
registering to vote
qualifying for in-state tuition

Question 63

Q

DIVERSITY/ALIENAGE CASES
citizenship of natural person
» how to treat DC and US territories for purposes of diversity?

[ subject matter jurisdiction ]

Answer

A

treat ‘em like states bb

Question 64

Q

DIVERSITY/ALIENAGE CASES
citizenship of natural person
» what time period does court look at to determine diversity?

[ subject matter jurisdiction ]

Answer

A

courts test for diversity when case is FILED

aka we don’t care what happens to citizenships after case is filed or what citizenships were before case was filed

Answer 65

A

corporation is citizen of both
1. every US state or country where INCORPORATED
and
2. the ONE US state or country where it has its PPB

NOTE = a corp can be incorporated in more than one place but it’s incredibly rare (usually there’s just one place of incorporation)

Answer 66

A

= state where managers DIRECT, COORDINATE, and CONTROL corporate activities
aka NERVE CENTER
(usually the site of corporate HQ)

NOTE = corporation can only have ONE PPB

Answer 67

A

examples = partnership, LLC, etc.

citizenship of ALL its MEMBERS
including citizenships of general AND limited partners

Answer 68

A

use citizenship of the decedent, minor, or incompetent to assess diversity

(must sue or be sued through rep, but rep’s citizenship is irrelevant)

Answer 69

A

In addition to complete diversity or alienage, P’s claim must exceed $75,000.

We look only at the claim itself. Do not include litigation costs or interest on the claim. The claim itself must exceed $75,000.
Whatever the plaintiff claims in good faith is OK unless it is clear to a legal certainty that she cannot recover more than $75,000.

Answer 70

A

= adding two or more claims to meet the amount requirement

can aggregate factually unrelated claims
no limit on the number that can be aggregated by one P against one D
in joint claims, the number of parties is irrelevant

Answer 71

A

P sues D for an injunction to tear down part of his house that blocks P’s view

2 tests = if either is met, most courts say it’s OK

P’s viewpoint = does the blocked view decrease the value of P’s property by more than $75,000?
D’s viewpoint = would it cost D more than $75,000 to comply with the injunction?

Answer 72

A

even if requirements for a diversity or alienage case are met, federal courts decline to hear some cases

4 key examples

divorce
alimony
child custody
to probate an estate

Answer 73

A

claim in P’s complaint ARISES UNDER federal law
(like federal constitution, legislation)

citizenship and AIC DON’T matter

Answer 74

A

not enough that some federal issue is raised by the complaint–P’s claim itself must “arise under” federal law

aka look @ the claim and ignore other material P alleged.

KEY Q = IS P ENFORCING A FEDERAL RIGHT?

yes = case can go to fed ct under FQ
no = case can’t go to fed ct under FQ

Answer 75

A

if P has sued D in state ct BUT D would prefer to litigate in fed ct, D might be able to remove case to fed ct

removal = transfers case from state trial ct to fed trial ct

remand = if removal was improper, fed ct can remand the case back to state ct

Answer 76

A

nahhhh my dude

Answer 77

A

D must remove no later than 30 days of service (not filing) of the first paper that shows the case is removable

(usually, that means no later than 30 days of service of process)

Answer 78

A

ALL Ds who have been served w/ process
= must be UNANIMOUS

BUT they need not all join in same doc, can file separate notices of removal (as long as all of them remove in a timely fashion)

Answer 79

A

TRICK.

Black letter rule = Ps can never, never, never remove

(this is true even if D files counterclaim against P, making P a defendant on that counterclaim)

Answer 80

A

2 exceptions apply ONLY IF removing on basis of DIVERSITY of citizenship jurisdiction
(aka even though case meets diversity reqs, can’t remove if EITHER of these two exceptions applies)
=
1. in-state D exception
or
2. one-year exception

Answer 81

A

= no removal if any D is a citizen of the forum (in- state D rule)

Answer 82

A

= no removal more than one year after case was filed in state court

Answer 83

A

It becomes removable if P voluntarily dismisses the claim against D2

But watch the dates

Answer 84

A

The in-state D is now gone so there’s diversity
SO D1 can remove
BUT case should be remanded b/c it’s
- a diversity case
- that was removed more than one year after P filed the case in state court
UNLESS D1 shows that P acted in BAD FAITH by originally joining D2 to prevent removal

Answer 85

A

D removes to the federal district EMBRACING the state court where the case was filed

Answer 86

A

D files NOTICE of removal (not motion) in FED court, stating grounds of removal (aka federal SMJ on diversity/FQ)
(don’t need permission from either court)
D attaches all docs served on her in state action
D PROMPTLY serves a copy of the notice of removal on adverse parties.
D files a COPY of the NOTICE of removal in STATE court.

Answer 87

A

If P thinks the case should not have been removed, she moves to remand to state court

Answer 88

A

If P thinks removal was IMPROPER…

for some reason OTHER than lack of SMJ
(ex = D did not attach relevant papers to her notice of removal)
= P must move to remand NO LATER THAN 30 days after notice of removal was filed in federal court

b/c fed court LACKS SMJ
= P can move to remand @ ANY TIME

Answer 89

A

Ds remove a diversity case that clearly satisfies diversity requirements BUT there’s in-state D and P moves to remand
= NOT considered to be a problem of SMJ
so P gotta move to remand within 30 days after filing of the notice of removal
(if P doesn’t, she waives right to have case remanded)

Answer 90

A

= form of federal SMJ
BUT fundamentally different from diversity and FQ.

unlike diversity/FW, supp jurisdiction does not get CASES into fed court
= it gets CLAIMS into fed case that otherwise don’t satisfy/invoke diversity or FQ

Answer 91

A

starting point
= must have case that’s already in fed ct
(aka case invoked diversity/FQ and is pending in fed ct)

then focus on additional claims
= in any case in fed ct, additional claims might be asserted in that case
(like additional claims by P, counterclaim, crossclaim, etc.)

Answer 92

A

YES

each claim must have fed SMJ
if claim doesn’t, it can’t be asserted in pending case in fed ct

AKA each additional claim is tested to see if it invokes

diversity of citizenship OR
FQ

Answer 93

A

the test
= claim must share COMMON NUCLEUS OF OPERATIVE FACT w/ claim invoking SMJ
(this is ALWAYS met when claim arises from SAME T/O as underlying case)
—-
the limitation
BUT by statute certain claims can’t get supp j even though they meet the test
– APPLIES ONLY IN DIVERSITY cases
– EXCEPTION to limitation
= when there are multiple Ps and claim by one of them doesn’t meet AIC req
(there’s a hypo in the outline, but, let’s be real; we’re not typing that up into this flashcard WAIT I JUST NOTICED YOU DID TYPE IT UP IN THE SUMMARY CARD WHAT IS WRONG WITH YOU)

Answer 94

A

non-FQ, non-diversity claim can be heard in fed ct if it meets the same T/O test
UNLESS it is meets 3 requirements
1. asserted by P
2. in a diversity (not FQ) case
3. with multiple Ps where one P doesn’t meet AIC

aka if the only reason a claim (by P in a case invoking diversity jurisdiction arising out the same T/O) would not get SMJ is failure to meet AIC req = then that claim gets SUPP J

Answer 95

A

even if supplemental jurisdiction reqs are met, court has discretion to decline it if

state law CLAIM is COMPLEX or state law ISSUES would PREDOMINATE in the case
FEDERAL CLAIM was DISMISSED EARLY in the case (more likely scenario)

Answer 96

A

we have a diversity of citizenship case in fed ct
fed judge must decide a particular issue
key inquiry = when she decides that issue, must she follow state law or is she free to ignore state law?

Answer 97

A

ask = is there some federal law on point that DIRECTLY CONFLICTS with state law?
yes =apply fed law, as long as it’s valid
if no fed law is on point, apply STATE LAW if the issue is SUBSTANTIVE
(some issues are clearly substantive - don’t worry, we have a separate card)
if not CLEARLY substantive, WEIGH FACTORS to determine if substantive/procedural
- if substantive = state law
- if procedural = federal law

Answer 98

A

FRCP are presumed valid

they’re ok if they’re ARGUABLY PROCEDURAL

Answer 99

A

elements of a claim or defense
statutes of limitations
rules for tolling of statutes of limitations
conflict (or choice) of law rules, and
## standard for whether to grant a new trial because a jury’s damages determination is excessive or inadequatenote = on these issues, the federal court MUST apply STATE LAW

Answer 100

A

OUTCOME DETERMINATIVE
= would applying or ignoring the state rule affect the outcome of the state?
yes = probs substantive
BALANCE OF INTERESTS
= does either fed or state system have strong interest in having its rule applied?
yes = go with that one!
AVOID FORUM SHOPPING
= if fed court ignores state law on this issue, will it cause parties to flock to federal court?
yes = should probably apply state law lmao

Answer 101

A

Erie says no GENERAL federal common law
= general law of torts/contracts/property is STATE law
and federal courts must apply that state substantive law in a diversity case

BUT there are areas with federal common law, especially:

international relations
admiralty
disputes between states

Answer 102

A

venue tells us exactly WHICH federal court is proper district

Answer 103

A

P may lay venue in ANY district where

All Ds reside
(AND if all Ds reside in different districts of the forum state = P can lay venue in the district where ANY D resides)
SUBSTANTIAL part of the claim arose
(which can be in more than one district)

Answer 104

A

venue = in fed district embracing state ct where action was filed

Answer 105

A

no, same in both

Answer 106

A

in the district where DOMICILED

Answer 107

A

in ALL districts where subject to PJ for this case

Answer 108

A

transferor = original court

transferee = court to which the case is sent

Answer 109

A

case goes from one trial court in a judicial system to another trial court in the same judicial system
BUT transferee must
- be a proper venue and
- have PJ over D

GENERALLY, those must be true without waiver by D
BUT statute #1 exception (original district is proper)
= court can transfer to any district (even improper venue) if
- all parties consent and
- court finds cause for transfer
(but unlikely P will consent, so it’s not clear this happens much)

Answer 110

A

statute #1 = original district is a PROPER venue

statute #2 = original district is an IMPROPER venue

Answer 111

A

If original district is PROPER venue, that court can order transfer

based on CONVENIENCE of parties/witnesses and
in the interest of JUSTICE

b/c transfer overrides P’s choice of forum (and b/c P chose a proper venue) = BURDEN is on person seeking transfer (usually D)

in deciding whether to transfer the case, court looks to PUBLIC and PRIVATE INTEREST FACTORS showing that the transferee is the center of gravity

Answer 112

A

= things like

what law applies
what community should be burdened with jury service
the desire to keep a local controversy in a local court

Answer 113

A

= convenience
(ex = where the evidence and witnesses are)

NOTE = existence of valid FORUM SELECTION CLAUSE prescribing venue in the other federal distract establishes that the private factors support transfer

Answer 114

A

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

If one party sues other in violation of FSC, D may seek to enforce FSC through a motion to transfer
(assuming forum selection clause called for litigation in proper federal district)

fed law enforces FSCs (if they’re not unreasonable)
(some states do not
BUT in fed ct, federal law governs transfer
= fed ct may enforce a FSC even though state court in that state would not)

Answer 115

A

if original district is IMPROPER venue, ct may

transfer in interest of justice or
dismiss

usually ct will transfer is possible and transferee applies COL of state in which is sits (in diversity), NOT COL rules of transferor district

Answer 116

A

= when there’s another ct that’s center of gravity, that makes more sense than present court (like transfer)

BUT unlike transfer, more convenient ct is in a different judicial system

= it's impossible to transfer, so court
instead it
- DISMISSES or 
- STAYS 
the case
(either way, the idea is that P will then sue in other court)

Answer 117

A

= to hold in abeyance

aka nothing happens in the case

Answer 118

A

decision is based on same public/private factors as transfer, including existence of valid FSC

also other court must be AVAILABLE and ADEQUATE

Answer 119

A

probs gonna be adequate unless P can get no remedy

Answer 120

A

filing this commences an action (this is actually what it do)

Answer 121

A

statement of grounds of SMJ
short and plain statement of claim, showing
entitled to relief
demand for relief sought

NOTE = P need NOT allege grounds of PJ or venue

Answer 122

A

fed ct traditionally used
= only need enough detail to put other side on notice

NOW SC requires more detail (Twombly and Iqbal)

Answer 123

A

must pled facts supporting a plausible claim

to determine plausibility judge uses her own experience and common sense

Answer 124

A

D can challenge complaint by making R.12(b)(6) motion

Answer 125

A

fraud
mistake
special damages

must be pleaded with PARTICULARITY or SPECIFICITY

Answer 126

A

R.12 requires D to respond in one of two ways

motion or
answer

Answer 127

A

To avoid default, D must respond (with answer or R.12(b) motion) no later than 21 days after being served with process

If D waived service, D has
- 30 days if inside US
- 60 days if outside US
from when P mailed waiver form

Answer 128

A

RULE 12

= requests for a court order
NOT pleadings

Answer 129

A

12(e) motion for more definite statement
= complaint so vague/ambiguous D simply can’t respond
D MUST make this motion before answering

12(f) motion to strike
= asks court to remove redundant or immaterial things from pleadings
ANY party may move for this

Answer 130

A

(1) lack of SMJ
(2) lack of PJ
(3) improper venue
(4) improper process
(5) improper service of process
(6) failure to state a claim
(7) failure to join indispensable party

These defenses can be put either in a motion to dis- miss or in the answer.

Answer 131

A

(2) lack of PJ
(3) improper venue
(4) improper process
(5) improper service of process

= MUST BE PUT IN FIRST R.12 RESPONSE (MOTION OR ANSWER) OR ELSE THEY’RE WAIVED

Answer 132

A

any time through trial

Answer 133

A

any time through trial

Answer 134

A

no

= whenever court determines there’s no SMJ, MUST dismiss
or, if case had been removed from state ct, must remand

Answer 135

A

must serve answer w/in 14 days of notice of denial

Answer 136

A

= a pleading

D does 2 things in answer

respond to allegations of complaint
raise affirmative defenses

Answer 137

A

Admit
Deny
State that you lack sufficient information to admit or deny
- has effect of a denial,
- cannot use if answer to question is in your control

Answer 138

A

failure to deny constitutes an admission except as to damages

Answer 139

A

these inject NEW FACT into the case, which will allow D to win

classic examples =

SOL
SOF
res judicata
self-defense

also all Rule 12(b) defenses

Answer 140

A

D may be deemed to have waived it

Answer 141

A

NO

allegations in D’s answer are deemed denied

Answer 142

A

right to amend
if there is no right to amend
variance
amendment after the SOL has run (aka relation back)

Answer 143

A

P has a right to amend her complaint once no later than 21 days after D serves her first R.12 response
(either a motion or answer)

Answer 144

A

D has a right to amend her answer once no later than 21 days of serving her answer

Answer 145

A

YES

a right to amend saves the waivable defenes

Answer 146

A

party must seek leave of court

will be granted if JUSTICE SO REQUIRES
factors = delay, prejudice, and futility of amendment

Answer 147

A

that’s where the evidence at trial does not match what was pleaded

if P does this (ex: evid of assault when claim was breach of contract), if D does NOT object = we amend to plead the assault claim
BUT, if D DOES object = evidence is inadmissible because it is “at variance with the pleadings

Answer 148

A

(amendment after the SOL has run)

to join a claim not originally asserted
to change a D after statute has run

Answer 149

A

if P files complaint BEFORE statute of limitations but amends AFTER statute of limitations = not barred if the amendment RELATES BACK

amended pleadings “relate back” if they concern the same conduct, transaction or occurrence as the original pleading
= you treat amended pleading as though filed when original filed, so avoids statute of limitations problem

Answer 150

A

still has to relate back
amendment will relate back if:
1. it concerns same conduct, transaction, or occurrence as the original;
2. new D knew of this case within 90 days of filing;
3. new D also knew/should have known that, but for a mistake, she would have been named originally.

NOTE: applies when P sued the wrong D first, but the right D knew about it.

Answer 151

A

set forth things that happened AFTER the pleading was filed

Answer 152

A

NO

must make a motion

whether it should be granted = in DISCRETION of court

Answer 153

A

applies to all documents except discovery
(treated by diff rule)

signature of lawyer or pro se party certifies that
- to the best of her knowledge and belief
- after reasonable inquiry
1. doc is not for IMPROPER PURPOSE and
2. LEGAL contentions are WARRANTED by law
(or NONFRIVOLOUS argument for law CHANGE) and
3. FACTUAL contentions/denials have EVIDENTIARY support
(or are likely to after further investigation)

this is a CONTINUING certification = you make this certification every time you present a position to the court
(ex = when you later advocate a position taken in doc)

Answer 154

A

the party, attorney, or firm responsible

general rule = law firm is jointly responsible with its attorney who violates R.11

Answer 155

A

if the other party violates R.11, serve the motion on other parties but cannot file it immediately
party in violation has a SAFE HARBOR of 21 days in which to fix the problem and avoid sanctions
if violator doesn’t, then motion can be filed

NOTE = before imposing any sanction, court must give party chance to be heard

Answer 156

A

court can raise R.11 sanctions SUA SPONTE and there’s NO safe harbor

court usually issues an OSC (order to show cause) why sanctions should not be imposed

NOTE = before imposing any sanction, court must give party chance to be heard

Answer 157

A

to DETER

not to punish

Answer 158

A

Often, courts impose NON-MONETARY sanctions
(ex = require lawyer to attend professionalism classes)

MONETARY sanctions, if imposed, are often paid to court, not to the other party

Answer 159

A

define the scope of the case
= how many parties and claims can be joined in one case?

REMEMBER every single claim in fed ct must have SMJ

Answer 160

A

P (in fact, anyone asserting a claim) may join any additional claim she likes—even if additional claim is unrelated to the original claim

BUT, still have to make sure there’s SMJ

Answer 161

A

multiple Ps can sue together
or multiple Ds can be sued together 
when their claims
1. arise from the SAME T/O
and
2. raise at least one COMMON Q

BUT with these parties, assess whether case invokes diversity or FQ

Answer 162

A

court might force ABSENTEE to join in case because he is necessary

three-step analysis

who’s necessary (aka required)?
can A be joined?
what if A cannot be joined?

Answer 163

A

aka required

A who meets any of these tests
1. w/o A, court cannot accord complete relief among existing parties
(worried about multiple suits)

A’s interest may be harmed if he is not joined
(practical harm)
** probs most likely on bar exam **
A claims an interest that subjects a party (usually D) to a risk of multiple obligations

Answer 164

A

TRICK.

never.

Answer 165

A

if A is necessary, court assesses if joinder of A is FEASIBLE =

(1) there is PJ over A and
(2) joining A will not goof up diversity jurisdiction

If joinder is feasible, court orders joinder of A

Answer 166

A

if A cannot be joined, court MUST do one of two things =
1. proceed w/o A
2. dismiss entire case
(aka A is INDISPENSABLE
+ remember R.12(b) defense of dismissal for failing to join indispensable party)

FACTORS for this choice

is there an alternative forum available?
what is the actual likelihood of harm to you?
can the court shape relief to avoid that harm to you?

Answer 167

A

= claim against an opposing party who asserted claim against you

(usually this is claim by D against P, as part of D’s answer)

Answer 168

A

respond under R.12 w/in 21 days of service

Answer 169

A

compulsory

2. permissive

Answer 170

A

arises from the SAME T/O as P’s claim
= unless you have already filed claim in another case, must assert it IN THIS CASE
(if you don’t use it, ya lose it)

NOTE = unique (very) b/c ONLY COMPULSORY CLAIM IN THE WHOLE WORLD

Answer 171

A

NOPE.

B was not required to answer (b/c she got the case dismissed)
= so she wasn’t required to assert the counterclaim

Answer 172

A

does NOT arise from same T/O as P’s claim

= not required to file it in this case, may sue on it in a separate case

Answer 173

A

REMEMBER ya gots to assess whether counterclaim invokes diversity or FQ jurisdiction

yes = gucci in fed court
no = try supplemental jurisdiction

Answer 174

A

= claim against a co-party

MUST arise from the SAME T/O as the underlying action

(but NOT compulsory—you may assert it here or sue separately)

Answer 175

A

when a defending party (usually D) is bringing in new party = 3PD (third-party defendant)

D can do this ONLY to shift to 3PD the liability that D will owe to P
So if D is found liable to P, he will try to get 3PD to pay all or part of his own liability

TE$T TIP = may be called third-party practice on bar exam

Answer 176

A

NOPE.

only compulsory claim = compulsory counterclaim, how many times we gotta say it

Answer 177

A

almost always a claim for INDEMNITY or CONTRIBUTION

Answer 178

A

Those claims shift liability that D owes P over to 3PD

Indemnity shifts it completely (so 3PD must cover full claim)

Contribution shifts it pro-rata (so 3PD must cover a pro-rata portion of the claim)

Answer 179

A

D files a third-party complaint naming 3PD
D serves process on 3PD (so must have PJ over 3PD)

RIGHT to implead WITHIN 14 DAYS of serving answer
(after that = need court permission)

Answer 180

A

YES

if the claim arises from the same T/O as the underlying case

Answer 181

A

YES

if the claim arises from the same T/O as the underlying case

Answer 182

A

REMEMBER to assess each claim separately for SMJ

first diversity/FQ, then supp

Answer 183

A

NO

P is not a party to this claim, so P’s citizenship is irrelevant to this claim

Answer 184

A

where nonparty brings herself into the case
= chooses to come in either 
as P (to assert a claim) or 
as D (to defend a claim)

application to intervene must be TIMELY

NOTE = court may realign her if it thinks she came in on the wrong side

Answer 185

A

intervention of right

2. permissive intervention

Answer 186

A

A’s interest may be harmed if she is not joined and is not adequately represented now

(yeah, same test as for necessary parties)

Answer 187

A

A’s claim or defense and the pending case have at least one common question

Discretionary with court
= usually OK unless intervention will cause delay or prejudice to someone

Answer 188

A

assess whether the claim by/against the intervenor invokes diversity or FQ

if NEITHER = try supplemental
(BUT remember a claim by intervenor P in a diversity case = claim by a P, so limitation on supplemental jurisdiction may apply)

Answer 189

A

Must demonstrate all four of these

NUMEROSITY
= Too many class members for practicable joinder
(no magic number)

2. COMMONALITY
= There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke

TYPICALITY
= Rep’s claims are typical of those of the class

4. ADEQUATE REP 
= class Rep will fairly and adequately represent class

Answer 190

A

prejudice
injunctive/declaratory relief
damages

Answer 191

A

aka PREJUDICE (limited fund) class

= class treatment necessary to AVOID HARM either to class members or to the non-class party

common example =

where many people have claims to a limited fund of money
if they sue individually, the fund will be depleted before all claimants get to court, leaving later claimants w/ nothing
to avoid this harm, a class would allow everybody to recover at least a portion of her claim

Answer 192

A

aka INJUNCTIVE RELIEF class

= where class seeks an injunction or declaratory judgment because D treated the class members alike

NOTE = generally cannot seek damages

Answer 193

A

aka DAMAGES class

= class action seeking damages (where there isn’t a limited fund)

court MUST NOTIFY class members that they are in a class
w/ individual notice (usually by mail) to all reasonably identifiable members, telling them
1. they can OPT OUT
2. they’ll be BOUND by the judgment if they don’t
3. they can enter a SEPARATE APPEARANCE through counsel

key example = mass tort

Answer 194

A

even though complaint says class action,
case won't become class action until COURT GRANTS MOTION TO CERTIFY it as a class action

Answer 195

A

case wont become class action until COURT GRANTS MOTION TO CERTIFY it as a class action

when it certifies the class action, court must DEFINE

the class
the class claims, issues, or defenses

if it certifies the class counsel, the court must also appoint class counsel

Answer 196

A

class counsel must fairly and adequately represent the interests of the class

Answer 197

A

if you lose on the class certification motion, you may ask the court of appeals to review that decision

aka it’s final for the purposes of interlocutory relief but review is DISCRETIONARY with the appeals court

Answer 198

A

FOR TYPE 3 class, court must NOTIFY class members that they are in a class
= individual notice to all reasonably identifiable members
(usually by mail)

notice tells them various things, including

they can opt out
they’ll be bound if they don’t
they can enter a separate appearance through counsel

NOT required in type 1 or type 2 cases

Answer 199

A

the class rep

Answer 200

A

no right to opt out of type 1 or type 2 cases

type 3 class members who opt out are not bound by the judgement in certified class action

Answer 201

A

all class members except those who opted out of type 3

Answer 202

A

parties need COURT APPROVAL to settle or dismiss certified class action

in all class types, court gives NOTICE to class members to get their feedback on whether the case should be settled or dismissed
(if it's type 3, court might give members a second chance to opt out)

Answer 203

A

class action might assert rights under fed law = would invoke FQ

class seeks to invoke diversity jurisdiction
– citizenship = consider only REP (ignore other class members’ citizenships)
– AIC = rep’s claim must exceed $75,000 (ignore other class members’ claims)
= class action will invoke diversity as long as
1. rep is diverse from all Ds and
2. rep’s claim exceeds $75K

Answer 204

A

aka CAFA

grants SMJ separate from diversity of citizenship jurisdiction (makes it easier for interstate class actions to go to fed ct)

= lets fed ct hear class action of AT LEAST 100 MEMBERS if - ANY CLASS MEMBER (not just rep) is of DIVERSE citizenship from ANY D 
and
- AGGREGATED claims of class exceed $5M

ALSO has complicated provisions to ensure that LOCAL CLASSES (where most class members and primary Ds are citizens of same state) do NOT stay in fed ct
(they get dismissed or remanded to state court)

Answer 205

A

= the phase of litigation in which we find out what other people know

basic idea is to avoid trial by ambush (we want things known before we go to trial)

Answer 206

A

= information that each party must give to other parties—even though no one asks for it

Answer 207

A

within 14 days of R.26(f) conference

unless a court order or stipulation of parties says otherwise??????

Answer 208

A

unless a court order or stipulation of parties says otherwise,

ID’s of persons who have discoverable info that the disclosing party may use to support your claims or defenses
(includes name, telephone, number, address, and topics)
docs and things the disclosing party may use to support its claims/defenses
(producing a copy or description will suffice)
computation of relief and documents/ESI
supporting it
insurance coverage
(D must disclose any insurance that might cover all or part of the judgment in the case)

Answer 209

A

what? yes, this is stupid.

(includes things on your computer, videos and photos taken on your smartphone, etc., as well as good old-fashioned papers)

Answer 210

A

nothing–only things in your control MUST be disclosed

Answer 211

A

YES

discoverable = broader than admissible

Answer 212

A

fail to disclose something you were REQUIRED to disclose
= CAN’T use that material in the case

UNLESS failure to disclose was

SUBSTANTIALLY JUSTIFIED or
HARMLESS

Answer 213

A

each party must identify expert witnesses who MAY BE USED @ TRIAL

= people who, b/c of EXPERTISE, are hired to give OPINION testimony in the case

Answer 214

A

at a time directed by the court

after initial required disclosures i guess

Answer 215

A

party hired an expert to help it prepare the case, but does not intend to call that expert to testify at trial
= consulting expert
(NOT an expert witness)

facts known/opinions held by consulting experts = generally not discoverable
EXCEPT in exceptional circumstances

Answer 216

A

for EW who may be used @ trial, each party generally must disclose

identity of EW
written report by EW

Answer 217

A

must include

opinions EW will express
bases for the opinions
facts used to form the opinions
EW’s qualifications
how much EW is being paid

Answer 218

A

after receiving EW’s identity/written report, party can take a deposition of EW

should subpoena EW to compel her attendance

that party must pay EW a reasonable fee per hour (set by the court)

Answer 219

A

earlier drafts of EW report and communications between the lawyer and the EW are work product

Answer 220

A

if you fail to disclose something you were required to disclose
= cannot use EW in case
UNLESS failure was justified or harmless

Answer 221

A

must give detailed information about trial evidence, including

identity of witnesses to testify live or by deposition
documents/ESI/things to be introduced at trial

Answer 222

A

NO LATER than 30 DAYS BEFORE TRIAL

Answer 223

A

= when one party requests information from other people

party CAN’T send discovery requests to ANOTHER PARTY until AFTER R.26(f) conference
UNLESS court order or stipulation provides otherwise

minor EXCEPTION =
can serve REQUESTS to PRODUCE more than 21 days after service of process
(treated as though served at R.26(f) conference)

Answer 224

A

= person (deponent) gives LIVE testimony UNDER OATH in response to Qs by counsel or pro se parties

Qs are usually oral but can be written
(if written, they are read by the court reporter)

deposition is RECORDED by sound or video or stenographically and a transcript can be made

to depose =

subpoena nonparty
serve notice of deposition on party

Answer 225

A

no, can testify from present recollection

Answer 226

A

requires deponent to bring requested materials with her

Answer 227

A

unless a nonparty agrees, the farthest she can be required to travel to have her deposition taken
= 100 miles from where she resides or is employed

Answer 228

A

NO MORE THAN 10 depositions

each one CAN’T exceed ONE DAY of SEVEN HOURS unless court orders or parties stipulate

CAN’T depose SAME person TWICE without court approval or stipulation

Answer 229

A

(all subject to rules of evidence)

impeach deponent
ANY purpose if deponent is ADVERSE party
ANY purpose if deponent (nonparty or party) is UNAVAILABLE for trial
UNLESS that absence was procured by party seeking to introduce the evidence

Answer 230

A

= written questions, to be answered IN WRITING UNDER OATH

can be sent ONLY to PARTIES
NEVER to nonparties

Answer 231

A

30 DAYS from service of interrogatories

plus an extra 3 DAYS if they were MAILED

Answer 232

A

can send no more than 25 interrogatories
(unless there’s a court order or stipulation for more)

INCLUDING subparts (so no more than 25 actual questions)

Answer 233

A

responding party can allow requesting party to have ACCESS to the records IF
- the answers to interrogatories can be found in BIZ RECORDS
and
- BURDEN of finding them would be about the SAME FOR EITHER PARTY

Answer 234

A

@ trial, CAN’T use your OWN ANSWERS to interrogatories

obvi other party’s answers are fine as long as admissible under rules of evidence

Answer 235

A

= request that someone
- make AVAILABLE for REVIEW/ COPYING documents or things, including electronically stored information (ESI)
or
- permit you to ENTER designated property to INSPECT/MEASURE/etc

requestee MUST respond IN WRITING within 30 DAYS of service either

stating material will be produced or
asserting objections

Answer 236

A

technically can make these requests of ONLY PARTIES

but practically doesn’t matter b/c can get same info by serving nonparty with subpoena duces tecum

Answer 237

A

requesting party specifies the form

responding party may object

Answer 238

A

NEED A COURT ORDER

to get the court order, you must show

that the person’s health is in actual controversy and
“good cause”

Answer 239

A

a party or someone in party’s CUSTODY or LEGAL CONTROL

```
note = this is NARROW
ex = employee is not in custody/legal control of employer
~~~

Answer 240

A

the party seeking the order chooses the licensed person to perform the exam

Answer 241

A

if court orders medical exam, party REQUESTING it receives report from doctor who gave the medical exam

party that TOOK the medical exam can also receive a COPY of the report by REQUESTING it from court
BUT if he does =
- must then produce for other party ALL MEDICAL REPORTS by his own doctors re: that medical condition
- also WAIVES any doctor/patient PRIVILEGE re: that condition

Answer 242

A

= a written request that someone admit things

often used to authenticate documents
ex = “admit that this is the contract”

Answer 243

A

ONLY to parties

NEVER to nonparties

Answer 244

A

responding party must respond 
IN WRITING 
within 30 days of service
by either 
- denying specifically or 
- objecting

Answer 245

A

only if she states she made a reasonable inquiry and cannot find enough information from which to admit or deny

Answer 246

A

depositions
interrogatories
requests to produce
medical exam (physical or mental)
requests for admission

Answer 247

A

parties sign substantive answers to discovery under oath

R.11 doesn’t apply to discovery docs

by a mysterious other rule (probs R.26), every discovery request/response is signed by counsel certifying

it is WARRANTED
it is NOT interposed for IMPROPER PURPOSE
it is NOT UNDULY BURDENSOME

Answer 248

A

if new circumstances make responses to 
- required disclosure
- interrogatory
- request for production
- request for admission 
either incomplete or incorrect
= have a duty to supplement response

Answer 249

A

can discover anything
RELEVANT to a claim/defense
and
PROPORTIONAL to the needs of the case

Answer 250

A

DISCOVERABLE = much broader than ADMISSIBLE @ trial

(ex = party can discover something like hearsay, as long as it’s relevant to claim/defense and proportional to needs of case)

Answer 251

A

something harmful to you need not be disclosed in REQUIRED disclosures

but might be discoverable using regular discovery tools

Answer 252

A

disclosing party can object to discovery by asserting that material is NOT REASONABLY ACCESSIBLE b/c of UNDUE BURDEN/CO$T

then either

disclosing party can move for a protective order OR
requesting party move to compel discovery

then court determines whether requested material reasonably accessible b/c of undue burden/cost

then requesting party has the opp to show GOOD CAUSE for the discovery

then if good cause is shown, court can order production and allocate the expense btwn parties

Answer 253

A

can object to discovery on basis of evidentiary attorney/client privilege

Answer 254

A

aka “trial preparation materials”

= material prepared in anticipation of litigation

NOTE = need not be generated by a lawyer

Answer 255

A

QUALIFIED work product
= may be discoverable if requesting party shows
- a SUBSTANTIAL NEED and
- the info is NOT OTHERWISE AVAILABLE by alt means

ABSOLUTE work product
= cannot be discovered, absolutely protected, usually referred to as opinion work product
- includes
(1) mental impressions
(2) opinions
(3) conclusions 
(4) legal theories

Answer 256

A

identity of people with discoverable info is always discoverable

Answer 257

A

a party has the right to demand discovery of any previous statement that he has made regarding the case

Answer 258

A

if you withhold discovery or seek a protective order based on privilege or work product, you must
- claim the protection EXPRESSLY and
- DESCRIBE materials in DETAIL
in a document called a PRIVILEGE LOG

Answer 259

A

lists materials protected by date, author, recipient, and privilege/protection claimed

must be in enough detail to allow the judge to determine whether the material is protected

Answer 260

A

should notify party PROMPTLY

other party must 
- return or
- sequester or 
- destroy 
pending decision by court about whether there has been waiver

Answer 261

A

protective order
responding party responds but not fully
no response to discovery request

Answer 262

A

party seeking protective order or sanctions
must certify that she tried in GOOD FAITH to resolve issue w/o court involvement
(asked the other side to MEET + CONFER)

Answer 263

A

if responding party thinks discovery request
- subjects it to annoyance, embarrassment, undue burden/expense OR
- is cumulative and not proportional to the case
= must certify that she tried in GOOD FAITH to resolve issue w/o court involvement
(asked the other side to MEET + CONFER)

if court agrees, it can

deny discovery or
limit it or
permit it on specified terms

Answer 264

A

less than full response = when responding party does respond, but fails to answer all Qs b/c he objects to them (or some of them)

TWO STEPS of sanctions

MOTION TO COMPEL party to answer unanswered questions + COSTS (including attny fees) of bringing motion
if party then violates order =
- MERITS SANCTIONS + COSTS (and attny fees re: motion)
- also could be held in CONTEMPT for violating ct order (EXCEPT no contempt for refusal to submit to medical exam)

Answer 265

A

no response = when responding party fails completely to attend her deposition, respond to interrogatories, or to respond to requests for production

only ONE STEP for sanctions
(aka no need to get an order compelling answers) =
MERITS SANCTIONS + COSTS (and attny fees for motion)

Answer 266

A

5 choices available to judge =

ESTABLISHMENT ORDER
(establishes facts as true)
STRIKE PLEADINGS of disobedient party
(as to issues re: discovery)
DISALLOW EVIDENCE from disobedient party
(as to issues re: discovery)
DISMISS P’s case
if BAD FAITH shown
enter DEFAULT JUDGMENT against D
if BAD FAITH shown

Answer 267

A

when litigation is reasonably anticipated, parties must PRESERVE discoverable information

if info is truly lost (cannot be recovered or restored) because party in control of it failed to take reasonable steps to preserve it
= court may order measures to cure harm caused to other party
(like adverse inference order)

Answer 268

A

= court will tell jury that it MUST PRESUME that lost info would be UNFAVORABLE to violating party
ONLY IF you can show other party lost info w/ INTENT TO DEPRIVE you of it
(very high burden to meet)

Answer 269

A

various ways case can be resolved w/o going to trial plus also there’s provisional (temporary) injunctive relief

preliminary injunctive relief (prelim injunction + TRO)
voluntary dismissal
default and default judgment

Answer 270

A

a court order that D either

(1) do something or
(2) refrain from doing something

generally, courts hesitant about doing this because the merits of the underlying dispute have not been decided

types

TRO
preliminary injunction = order that maintains the status quo until trial

Answer 271

A

court issues TRO ex parte ONLY if

applicant files paper under oath clearly showing w/o, will SUFFER IMMEDIATE + IRREPARABLE HARM if has to wait until other party is heard
applicant’s LAWYER CERTIFIES in writing
- EFFORTS to give oral/written notice to D or D’s lawyer OR
- why such notice SHOULDN’T BE REQUIRED in this case
if court issues TRO
- applicant must post BOND (security) to cover other side’s costs/damages caused if it turns out the restraint is wrongful
- order must be served on D ASAP

note = TRO must

state its terms specifically
describe in detail what D must do (or refrain from doing)
state why it was issued and why the threatened injury to P was irreparable

Answer 272

A

if court issues TRO, D can move to dissolve

ruling granting/denying TRO is NOT appealable as of right

Answer 273

A

effective for NO MORE THAN 14 days (or lesser time stated by court)
can be EXTENDED UP TO ANOTHER 14 DAYS if applicant shows GOOD CAUSE before expiration
= a TRO cannot extend beyond 28 days

NOTE = if court extends TRO BEYOND 28 days, it may be treated as preliminary injunction

Answer 274

A

= order that maintains the status quo until trial

burden is on applicant to show =

(1) He is likely to suffer irreparable harm if the injunction is not issued;
(2) He is likely to win on the merits of the underlying case;
(3) The balance of hardship favors him (threatened harm to Applicant outweighs harm to other party if the injunction is issued); and
(4) The injunction is in the public interest

NO RIGHT to injunction = matter is in court’s discretion

Answer 275

A

can NOT be granted ex parte

must state its terms in specificity, describe in detail what D must do or refrain from doing, and state why it was issued (same as w/ TRO)

if the court grants preliminary injunction, the applicant must post a BOND (same as w/ TRO)

in granting/denying preliminary injunction, court must make specific findings of fact and separate conclusions of law

Answer 276

A

if P wants to withdraw the case, P can make a MOTION for voluntary dismissal ANY TIME, which the court has discretion to grant

P has a RIGHT to take a voluntary dismissal by filing a NOTICE of dismissal
BUT must do so BEFORE D SERVES answer or SJ motion

Answer 277

A

if P files TIMELY NOTICE of dismissal = case is dismissed WITHOUT PREJUDICE
aka P can refile the case later

Answer 278

A

can only dismiss without prejudice ONCE

if P files a notice of dismissal in the second case = dismissal is WITH PREJUDICE
aka P can NOT refile the case

Answer 279

A

when D does not respond to the complaint in time

aka
21 days after being served with process or
30 days from mailing of waiver if inside US
60 days from mailing of waiver if outside US

Answer 280

A

= a notation by the court clerk on the docket sheet in the case

Answer 281

A

court clerk does NOT enter default AUTOMATICALLY
= P must REQUEST ENTRY of default
by demonstrating D failed to respond in time

until default is entered, D can respond by motion or answer (EVEN beyond 21 days)

Answer 282

A

effect of entry of default = cuts off D’s right to respond

entry of default does not entitle P to recover
= P needs to get a default judgment before she can recover from D

Answer 283

A

clerk of court can enter judgment if

D made NO RESPONSE at all
claim itself is for a SUM CERTAIN in money
claimant gives an AFFIDAVIT of the sum owed
D is NOT a MINOR/INCOMPETENT

if any of those 4 requirements are not met = P must apply to court itself for default judgment

Answer 284

A

judge will hold a hearing and has DISCRETION to enter judgment

D gets NOTICE of this hearing ONLY IF he APPEARED in the case

Answer 285

A

limitation #1 = cannot exceed damages stated in complaint
limitation #2 = cannot get different relief from what was pled

note = obvi if case goes to trial, P can recover more (and a different) relief than what she put in complaint

Answer 286

A

D may move to have the court set aside a default or default judgment by showing

good cause (like excusable neglect) and
viable defense

Answer 287

A

about whether the case belongs in the litigation stream at all

= if P’s complaint fails to state a claim, case can be dismissed

Answer 288

A

in ruling on this motion, court
- ignores P’s legal conclusions
- looks only at P’s allegations of fact in the complaint
(does not look evidence, only at face of complaint)
- and asks = assuming these facts as true, do they state a PLAUSIBLE CLAIM?

if no, P has not stated a plausible claim = no sense letting the case proceed b/c law does not recognize a claim on these facts
BUT court might let P amend to try to state a claim

note = judge uses her experience and common sense to see if the facts state a plausible claim

Answer 289

A

if after D’s answer = same as a motion for judgment on the pleadings

Answer 290

A

SJ weeds out cases in which we DON’T NEED TRIAL

the reason we ever have a trial is TO RESOLVE DISPUTES OF MATERIAL FACT

Answer 291

A

party moving for summary judgment must show

there’s NO GENUINE DISPUTE of MATERIAL FACT and
that she’s ENTITLED to JUDGMENT as MATTER OF LAW

BUT even if standard is met, court has DISCRETION to deny SJ

Answer 292

A

ANY party can move for this NO LATER THAN 30 DAYS after CLOSE of DISCOVERY

Answer 293

A

CAN make motion for PARTIAL judgment
but allow the case to go to trial on damages

(ex = as to liability)

Answer 294

A

court can look @ EVIDENCE for SJ, viewing it in LIGHT MOST FAVORABLE to NONMOVING party

Answer 295

A

parties proffer the evidence, usually

affidavits or
declarations or
deposition testimony or
interrogatory answers

(can be considered evidence b/c UNDER OATH)

Answer 296

A

if party opposing SJ needs more time to find evidence to oppose motion, she may file affidavit or declaration with court stating what that evidence would be

court may allow more time for party to obtain evidence

Answer 297

A

pleadings can only be treated as evidence IF VERIFIED (aka under oath) but this is RARE

but pleadings may also be relevant for SJ in this way
= if D failed to deny an allegation by P, it can be treated as fact on SJ

Answer 298

A

judge does not assess credibility on SJ motion

but can consider evidence to ignore/discredit evidence and grant SJ

Answer 299

A

parties “meet and confer” AT LEAST 21 DAYS BEFORE scheduling order (unless court order says otherwise)

parties DISCUSS

production of required initial disclosures
claims
defenses
settlement
preservation of discoverable information

parties present to court a detailed DISCOVERY PLAN

Answer 300

A

must be presented to the court NO LATER THAN 14 DAYS after R.26(f) conference

Answer 301

A

must include

views and proposals on TIMING
issues about DISCOVERY of ESI (including how it will be produced and any problems retrieving it)

Answer 302

A

= roadmap for how the litigation proceeds up to trial
(unless local rule or court order says otherwise,

court enters order scheduling cut-offs for things like

joinder
amendment
motions
completion of discovery

Answer 303

A

court may hold pretrial conferences to process the case

FINAL PRETRIAL CONFERENCE determines
- issues to be tried @ trial
- evidence to be proffered @ trial
= recorded in PRETRIAL CONFERENCE ORDER

PRETRIAL CONFERENCE ORDER

supersedes the pleadings
is a roadmap of issues to be tried, evidence to be presented at trial, witnesses, etc.
used to prevent surprises @ trial

Answer 304

A

if there’s jury = jury determines the facts and returns the verdict

no jury = the judge determines the facts aka bench trial

Answer 305

A

= pretrial motion to decide whether jury should hear certain evidence

Answer 306

A

the Seventh Amendment preserves the right to jury
in civil actions @ LAW
but NOT in suits @ EQUITY

if case includes both law and equity
(ex = includes claim for legal relief of damages and for an equitable relief of injunction)
= jury decides all facts underlying legal relief
but NOT facts underlying equitable relief
(if a fact underlies BOTH, jury decides it)

Answer 307

A

trial will usually proceed in order of legal issues, then equitable issues
= try the JURY issues FIRST

Answer 308

A

TRICK.

nope, applies in federal civil cases only

Answer 309

A

MUST demand jury
- in writing
- NO LATER THAN 14 days after service of last pleading addressing a jury-triable issue
(usually the answer)

if you don’t = waive the right to a jury

Answer 310

A

yes, b/c there has been NO ANSWER on first claim

if D had served his answer MORE THAN 14 DAYS BEFORE P made this jury demand = P would have waived jury

Answer 311

A

voir dire = jury selection process

in voir dire, each side might ask court to strike (remove) potential jurors

Answer 312

A

FOR CAUSE
aka potential juror will not be impartial
limit = NO LIMIT to how many motions to strike FOR CAUSE a party can make
PEREMPTORY
historically, just dismiss the potential juror (didn’t need to state a reason)
limit = 3 PER SIDE (not per party)
note = may only be used in RACE-/GENDER NEUTRAL MANNER b/c state action

Answer 313

A

min = 6
max = 12

generally, all jurors participate in the verdict unless excused for good cause

Answer 314

A

must be UNANIMOUS

unless parties agree otherwise

Answer 315

A

jury decides facts, but is instructed on the law by the judge

parties submit proposed jury instructions to the judge
@ CLOSE of ALL EVIDENCE (or earlier if the court says so)

BEFORE final argument/instruction, court informs parties of

what instructions it will give and
what proposed jury instructions it rejected

parties must be allowed to make specific objections
- on the record and
- out of jury’s hearing
to both the instructions and rejection of proposed instructions

Answer 316

A

if objections are not made before the jury is “charged” (given the instructions) = party CAN’T raise problem with jury instructions

in a post-trial motion or
on appeal

EXCEPTION = even if party did not object TIMELY, a court can consider a jury instruction if it contained PLAIN ERROR

Answer 317

A

judge determines what verdict form the jury will use

GENERAL
= just says who wins and, if P wins, what the relief is
SPECIAL
= jury answers in writing specific written questions about the facts in dispute, but does not tell us who wins or loses
GENERAL VERDICT w/ WRITTEN Qs
= jury not only gives a general verdict, but it also answers specific submitted questions (that ensure jury focused on the important issues)

Answer 318

A

if jury returns GENERAL verdict
= clerk of court enters the judgment

if the jury returns
- SPECIAL verdict or
- GENERAL VERDICT w/ WRITTEN Qs and
the answers are CONSISTENT with each other and with the verdict
= judge approves judgment and clerk enters it

if jury returns GENERAL VERDICT w/ WRITTEN Qs and
the answers are CONSISTENT w/ each other
but INCONSISTENT w/ the verdict
= court may
a. enter an appropriate judgment consistent with the answers or
b. tell the jury to reconsider or
c. order a new trial

if jury returns GENERAL VERDICT w/ WRITTEN Qs and
the answers are INCONSISTENT w/ each other
and one or more is INCONSISTENT w/ general verdict
= court cannot enter judgment and either
a. instructs the jury to reconsider or
b. orders a new trial

Answer 319

A

generally, verdict may be IMPEACHED based upon EXTERNAL matters

new trial can be ordered if
- if jurors were bribed
- based the verdict on their investigation of matters outside of court instead of the evidence at trial
BUT verdict will not be set aside if the misconduct was harmless

non-jurors may give first-hand evidence of such things

Answer 320

A

when there is no jury
(either Seventh Amendment did not apply or parties waived right to jury trial)
= JUDGE determines the facts at trial

judge must

state on the record or in writing findings of fact and separate conclusions of law
enter judgment (very short = who wins and what relief)

Answer 321

A

JMOL
RJMOL
for new trial
remittitur/additur

Answer 322

A

for centuries, this was called “directed verdict.” It ap- plies in jury trial. If the judge grants JMOL, the case will not go to the jury—the judge grants the motion and enters judgment.
The motion is based upon evidence presented at trial. Why would a judge grant JMOL and refuse to let the jury decide the case?
b/c reasonable people could not disagree

It’s like summary judgment (where there was no dis- pute of material fact), except that this comes up at trial instead of before trial.
Like summary judgment, the court views the evidence in the light most favorable to the non-moving party.

Answer 323

A

When can a party move for JMOL?

after other side has been heard @ trial

Answer 324

A

aka RJMOL

may be granted when jury reached a conclusion that reasonable people could not have reached
(like JMOL, court views the evidence in the light most favorable to the non-moving party)

if granted, court enters judgment for party that lost the jury verdict

2 requirements

must have moved for JMOL at proper time at trial and
RJMOL motion must be based upon the same grounds as the JMOL motion

Answer 325

A

move for RJMOL WITHIN 28 DAYS AFTER entry of judgment

Answer 326

A

used when judgment is entered, but some error at trial requires that we should start over and have a new trial

can be based on any (non-harmless) error that makes the judge think we should have a do-over

Answer 327

A

judge gave ERRONEOUS JURY INSTRUCTION
NEW EVIDENCE that could NOT have been gotten before w/ DUE DILIGENCE
MISCONDUCT by juror or party or lawyer, etc.
judgment is AGAINST WEIGHT OF EVIDENCE
inadequate or excessive DAMAGES

ex = if party met the standard for RJMOL but waived it by not moving for JMOL at trial = could move for new trial on the grounds that the verdict is against the weight of the evidence

Answer 328

A

party moves for this WITHIN 28 DAYS AFTER JUDGMENT

Answer 329

A

ordering new trial is less drastic than ordering RJMOL
(b/c new trial results in starting over, so the same party might still win)

RJMOL results in taking judgment away from one party and giving it to the other

Answer 330

A

possible ground for new trial = jury’s damages figure is excessive or inadequate

majority/fed standard for ordering new trial = damages figure SHOCKS the CONSCIENCE
but court might suggest remittitur or additur to avoid new trial

REMITTITUR (playing hardball with P)

permissible in state court
permissible in federal court BUT court must give P choice of accepting lower amount or going to a new trial (just lowering it violates 7th amendment)

ADDITUR (playing hardball with D)

permissible in state court
unconstitutional in federal court (violates 7th amendment)

Answer 331

A

***wtf is this

AT LEAST 14 DAYS BEFORE TRIAL, D offers to pay to settle P’s claim

P can accept and judgment will be entered for that amount

P can reject it and go to trial
- if P wins a judgment that is not more favorable than the offer = P is liable to D for D’s costs incurred after the offer was made

Answer 332

A

ask the district court to set aside an order or judgment it entered

Answer 333

A

Clerical error
= Any time
Mistake, excusable neglect (including viable defense)
= Reasonable time (never more than 1 year)
Fraud, misrepresentation, or misconduct by opposing party
= Reasonable time (never more than 1 year)
New evidence that could not have been dis- covered with due diligence for a new trial motion
= Reasonable time (never more than 1 year)
Judgment is void (e.g., no SMJ)
= Reasonable time (no maximum)

Answer 334

A

= when fed district ct has entered an order and losing party wants to seek review by US Court of Appeals for the appropriate circuit

Answer 335

A

loser has right to appeal if order is a FINAL JUDGMENT
= one that determines the MERITS of the entire case

to determine whether final judgment, ask
after making the ruling, does trial judge have anything left to do ON THE MERITS of the case?
– yes = interlocutory order, not final judgment

NOTE = when case is removed then fed ct remanded it to state ct, remand order generally can NOT be appealed to US Court of Appeals (per statute)

Answer 336

A

file notice of appeal of final judgment
in district court
WITHIN 30 DAYS after entry of judgment

Answer 337

A

interlocutory = non-final

If district court’s order is not a final judgment, it might be appealable based upon one of these 6 doctrines

orders reviewable as of right
interlocutory appeals act
collateral order doctrine
multiple claims and parties
class action
extraordinary writ (mandamus or prohibition)

Answer 338

A

interlocutory orders reviewable as of right
= orders granting, modifying, or refusing preliminary or permanent injunctions

(does NOT include orders granting, modifying, or refusing TRO unless TRO is extended past 28 days b/c then it’s treated as a preliminary injunction)

Answer 339

A

allows appeal of nonfinal order if
1. district judge certifies that it 
involves a controlling issue of law 
to which there is substantial ground for difference of opinion
AND
2. court of appeals agrees to hear it

Answer 340

A

appellate court has discretion to hear ruling on issue if that issue

is distinct from the merits of the case
involves an important legal question
is essentially unreviewable if parties await a final judgment

Answer 341

A

when more than one claim is presented in a case OR
when there are multiple parties
= district court may expressly direct entry of a final judgment as to one or more of them
IF it makes an express finding that there is no just reason for delay

Answer 342

A

court of appeals has DISCRETION to review an order granting or denying CERTIFICATION of class action

must seek review at court of appeals WITHIN 14 DAYS of order

appeal here does NOT STAY proceedings at district court unless court of appeals or district court says so

Answer 343

A

= ORIGINAL proceeding in the court of appeals to compel the district judge to make or vacate a particular order

NOT a substitute for appeal
= available ONLY if district court is VIOLATING a CLEAR LEGAL DUTY

Answer 344

A

ex = content of jury instruction on burden of proof

when district judge decides questions of LAW = court of appeals reviews DE NOVO

Answer 345

A

in non-jury trial, when district JUDGE decides questions of FACT = court of appeals will affirm
unless CLEARLY ERRONEOUS

note = court of appeals must give due regard to trial judge’s determination of CREDIBILITY

Answer 346

A

in jury trial, when JURY decides questions of FACT = court of appeals will affirm
unless NO REASONABLE JURY COULD’VE MADE THAT FINDING

note = court of appeals must give due regard to trial judge’s determination of CREDIBILITY

Answer 347

A

ex = whether to

grant a motion to amend pleadings
allow permissive intervention
give a particular jury instruction

on discretionary matters, court of appeals will affirm unless district judge ABUSED her DISCRETION

Answer 348

A

not every error (even error of law) requires reversal on appeal

HARMLESS ERROR = no reversal required

Answer 349

A

re: issues concerning preclusive effect of a prior judgment on the merits

key q = whether a judgment already entered (Case 1) precludes litigation of any matters in another case (Case 2)

if Case 1 and Case 2 are in different judicial systems
(like state and federal)
= court in Case 2 applies preclusion law of the judicial system that decided Case 1

Answer 350

A

= only get to sue on a claim once

aka you only get one case in which to vindicate all rights to relief for that claim

Answer 351

A

aka res judicata

Case 1 and Case 2 were brought by the SAME CLAIMANT against the SAME D
Case 1 ended in a valid final judgment ON
THE MERITS
general rule = unless ct said otherwise when it entered the judgment, any judgment is ON THE MERITS
UNLESS it was based on
jurisdiction (PJ or SMJ)
venue
indispensable parties
(true even if there was no adjudication in Case 1)
Case 1 and Case 2 asserted SAME CLAIM
majority/fed view = a claim is any right to relief arising from a transaction or occurrence (T/O)
key minority view = there are separate claims for property damage and for personal injuries because those are different primary rights

Answer 352

A

narrower than claim preclusion

an issue was litigated in Case 1, same issue is presented in Case 2
= if issue preclusion applies, will not allow issue to be relitigated in Case 2
(deem it established in Case 2)

Answer 353

A

aka collateral estoppel

Case 1 ended in a VALID FINAL JUDGMENT ON THE MERITS
SAME ISSUE issue was actually litigated and determined in Case 1
issue was ESSENTIAL to the judgment in Case 1
= the finding on this issue is the basis for the judgment
Can only be used against someone who was a PARTY in case #1 OR in PRIVITY with them
MUTUALITY doctrine
generally, only parties to Case 1 can assert preclusion

Answer 354

A

can only be used against somebody who was a PARTY to Case 1 or in PRIVITY with a party
(rationale = DP)

privity = that a party to Case 1 represented someone who was not a party to Case 1

example = class action, where Rep represents members, who are bound even though they were not parties

Answer 355

A

every court agrees that issue preclusion can be used by someone who was a PARTY to Case 1 (or represented by a party)

key issue = whether it can be used by someone who was not a party to Case 1 (or represented by a party)

nonmutual issue preclusion 
= when someone who was not a party to Case 1 tries to use issue preclusion in Case 2
- comes up in 2 ways = 
1. nonmutual defensive issue preclusion
2. nonmutual offensive issue preclusion

Answer 356

A

= D seeks to invoke issue preclusion to prevent P from establishing its claim
(was not a party in earlier case)

fed law + most states say it’s okay as long as
approved use where issue was fully and fairly litigated in case 1

Answer 357

A

= P seeks to invoke issue preclusion to establish facts to prove its claim
(was not a party in earlier case)

majority = can’t use it

recent trend and federal = allows non-mutual offensive as long as it’s NOT UNFAIR using 4 fairness factors

Answer 358

A

= must has confidence that issue was fairly determined in prior action

UNFAIR IF

party did not have adequate incentive to litigate issue aggressively (like if the stakes were much lower than in later action)
result was somehow brought into question, like if inconsistent with findings in other actions on the same issue
losing party did not have a full procedural opportunity to litigate the issue in prior action
P had been waiting for another litigant to litigate a common issue, hoping to ride on party’s coattails if outcome is favorable or relitigate if it isn’t (such strategic behavior would promote inefficiency)

Answer 359

A

D’s action after denial of R.12 motion – must serve answer w/in 14 days of notice of denial
D has right to implead w/in 14 days of serving answer
Initial required disclosures must be made w/in 14 days of R.26(f) conference
TRO – effective 14 days & can be extended 14 days
Detailed discovery plan – must be presented to court no later than 14 days after R.26(f) conference
Jury Demand – must be made in writing no later than 14 days after service of last pleading addressing a jury-triable issue
Offer of Judgment – if D makes offer at least 14 days before trial & P declines (& P ultimately gets less favorable judgment at trial), P is liable to D for D’s costs incurred after offer was made
Interlocutory review (class action) – Court of Appeals has discretion to review grant/denial of class certification; must seek review w/in 14 days of order

Answer 360

A

D’s response – must file either answer or R.12 motion no later than 21 days after being served with process
P’s right to amend – P has right to amend complaint once no later than 21 days after D serves her first R.12 response (answer/motion)
D’s right to amend – D has right to amend answer once no later than 21 days of serving answer
Safe harbor for sanctions
P must respond to D’s counterclaim w/in 21 days of service of counterclaim
Discovery tools: although parties generally can’t send discovery requests until after R.26(f) conference, minor exception is they can serve requests to produce more than 21 days after service of process
Parties must meet and confer 21 days before scheduling order

Answer 361

A

TRO cannot exceed 28 days (may be considered preliminary injunction)
RJMOL – must move w/in 28 days after entry of judgment
Motion for new trial – must move w/in 28 days after judgment

Answer 362

A

Waiver of formal process within US (mailed by D w/in 30 days)
Removal – D must remove no more than 30 days of service of first paper showing case is removable
Remand – if P thinks removal was improper for a reason other than SMJ, must move to remand w/in 30 days after notice of removal was filed in federal court
In-state D rule – P still has to remove to remand w/in 30 days after filing notice of removal
Required pretrial disclosure must be made no later than 30 days before trial
Interrogatories – must respond to them w/in 30 days from service of interrogatories (plus extra 3 days if they were mailed)
Requests to produce – responding party must respond in writing w/in 30 days of service
Request for admission – responding party must respond in writing w/in 30 days of service
SJ – any party can move for SJ no later than 30 days after close of discovery
Motion for relief from order or judgment – must be made w/in 30 days after entry of judgment

Answer 363

A

waiver of formal process outside US (mailed by D w/in 60 days)

Answer 364

A

P must serve D w/in 90 days of filing complaint

2. Relate back – (new D must have known of the case w/in 90 days of filing)

Answer 365

A

removal (D’s need not join all in same doc as long as all of them remove in a timely fashion)
intervention (application to intervene must be TIMELY

Answer 366

A

can challenge SMJ
P can make a motion for a voluntary dismissal (that is discretionary by the court)
party can make a motion for relief from order or judgment for a clerical error

Answer 367

A

D can raise a 12(b)(6) motion (failure to state a claim)

2. D can raise a 12(b)(7) motion (failure to join an indispensable party)

Answer 368

A

when required disclosures for expert witnesses must be made

Answer 369

A

P has a right to take a voluntary dismissal

Answer 370

A

party can make a motion for relief from order or judgment for mistake, excusable neglect (including viable defense)
party can make a motion for relief from order or judgment for fraud, misrepresentation, or misconduct by opposing party
party can make a motion for relief from order or judgment for new evidence that could not have been discovered with due diligence for a new trial motion

Answer 371

A

party can make a motion for relief from order or judgment because judgment is void (ex: no SMJ)

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