CivPro (MBE) Flashcards
1
Q
does failure to make proof of service (w/ the court) does affect the service’s validity?
A
no
2
Q
Serve according to forum state’s rules, or rules where D resides?
A
both work
3
Q
If D timely returns a waiver of service before being served with process, then D does not have to serve an answer to the complaint until when?
A
sixty days after the request was sent [incentive to waive!], or 90 days after it was sent to D outside US
4
Q
by when do you respond to amended pleading?
A
Unless the court orders otherwise, a party must respond to an amended pleading within the later of 14 days after service of the amended pleading or the time remaining for response to the original pleading (21 days).
5
Q
what happens when affirmative defense (named like SOF), is not stated in D’s answer?
A
deemed waived, can’t include in motion to dismiss
6
Q
Is an order for a new trial appealable? Why/why not?
A
no because it is not a final judgment. A party who wants to raise on appeal the grant of a new trial must wait until the new trial has occurred and resulted in a final judgment
7
Q
How long after final judgment must you appeal?
A
30 days
8
Q
Two notes re: same transaction. A sued B for one. Then later sued B for the other. Ok? Or should’ve done both in one suit?
A
Although each promissory note arose from the same sales transaction, the ordinary commercial understanding is that the failure to pay each note constitutes a separate cause of action that can be independently pursued by the holder of the note.
9
Q
Class action based on federal law but no rep meets 75K requirement. OK?
A
Since based on federal law violation, the court has subject matter jurisdiction on the basis of federal question rather than diversity jurisdiction
10
Q
numerosity
A
class must be so numerous that joinder of all members is NOT practicable
11
Q
Class cert appeal: must, or may, appeals court hear the appeal?
A
may
12
Q
If the appeals court permits hearing the class cert appeal, will it stay proceedings in the district court?
A
No, unless the district court or the court of appeals so orders
13
Q
How may a court correct a clerical or other mistake resulting from oversight or omission whenever one is found in a judgment, order, or other part of the record,
A
via motion by a party or on court’s own initiative, with or without notice
14
Q
once an appeal from a judgment or order has been docketed in the appellate court, how can you make a clerical-error correction?
A
only with leave [permission] of appellate court
15
Q
Although an allegation in P’s complaint is generally deemed admitted if that allegation is not denied in the answer, the same is not true if the allegation relates to __
A
damages
16
Q
Can you take a deposition before the discovery conference?
A
yes, but requires leave of court
17
Q
Depositions may be used by a party to . . .
A
impeach testimony, or for any other purpose permitted by the Federal Rules of Evidence
18
Q
If P fails to prosecute his case and, in response to a D’s motion, the court dismisses the action, the dismissal is with prejudice, or without prejudice?
A
with prejudice – operates as an adjudication on the merits
19
Q
involuntary dismissals are typically with prejudice or without prejudice?
A
with prejudice
20
Q
what’s an exception to the rule that involuntary dismissals are typically with prejudice?
A
Exception: dismissing an action due to the failure to join a necessary party is without prejudice
21
Q
If P validly sues in federal court, but there are similar pending actions by others in state court, what must the fed court do?
A
adjudicate the case
22
Q
can a federal court remove a case to state court?
A
no
23
Q
It’s OK to file with the court and serve a summons and third-party complaint on third party D without leave of the court if you file the third-party complaint within __ days after serving your answer to P’s complaint
A
14
24
Q
It’s OK to file with the court and serve a summons and third-party complaint on third party D WITH leave of the court if you file the third-party complaint when after P’s complaint is filed?
A
anytime after
25
When can a party asserting a claim join with it as many independent or alternative claims of whatever nature against the opposing party?
when the court has subject-matter jurisdiction over the new claims
26
If trying to join a state claim to a federal claim, the state claim may be joined only if...
diversity jurisdiction exists, or if the new claim arises out of the same case or controversy as the federal claim such that supplemental jurisdiction applies.
27
when is joined by a P required?
never
28
judgment as a matter of law
court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party.
It may not consider the credibility of witnesses and cannot evaluate the weight of the evidence, and it must disregard all evidence favorable to the moving party that the jury is not required to believe.
29
After verdict read aloud and jurors all say 'this is our verdict,'
one juror, when questioned individually, denied that the special verdict was her verdict. what can court do?
may order a new trial
30
Can a case be tried with / verdict returned by less than six jury members?
if the parties stipulate, then yes
31
If a new cause of action that was unknown at common law is created, do you use jury trial or not?
look to whether the remedy sought is legal rather than equitable; if the remedy's legal, a jury should be allowed
32
When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, the court may . . .
(i) approve a judgment that is consistent with the answers
(ii) direct the jury to reconsider its answers and verdict, or
(iii) order a new trial
33
by when must a demand for a jury trial be served?
within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury.
example: complaint sought damages, which is an action at law for which a jury trial may be had. But the demand was not made within 14 days of service of the funeral home’s answer, which is the only responsive pleading the funeral home may make that is directed to P's complaint
34
which evidence can court consider when evaluating motion to dismiss?
only the allegations in the complaint, any exhibits attached, and any matters subject to judicial notice (NOT outside materials like affidavits, UNLESS it's re: personal jdx then affidavits okay)
35
for summary judgment, may court consider outside materials like an affidavit?
yes
36
within how many days must a new trial motion be filed?
2
37
what's remittitur and additur?
Although a federal court is permitted to offer remittitur (P we'll lower your damage award but you wont have to deal w/ a new trial!) (a reduction in the damages awarded by the jury) as the means by which the plaintiff can avoid a new trial, a federal court cannot offer additur (D--pay more now, and you wont have to do a new trial!) (an increase in the amount of damages awarded by the jury) as the means by which the defendant can avoid a new trial.
38
does motion for new trial have to address all issues or only some?
a court may, on motion, grant a new trial either on all issues or on only certain issues or parties (eg only re: damages)
39
how do you determine whether notice by publication is constitutionally sufficient?
While state law might provide for notice by publication, federal law controls regarding whether such notice is constitutionally sufficient.
if the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through in-person delivery, registered mail, return receipt requested, or some other means likely to notify the particular individual is required.
Notice by publication there would likely not be sufficient.
40
when must you object to lack of personal idx?
Objection to lack of personal jdx must be done in a responsive pleading or by motion before then (if not, waived)
41
can you amend an answer to include the personal jdx defense?
You CAN amend the answer w/in 21 days to include the personal jdx defense
42
what're the two ways to establish personal jurisdiction?
General: D's "at home" there
Specific: cause of action relates to D's contact there (crash)
43
when can you require P to undergo physical examination?
○ Although a physical examination may be ordered only for “good cause,” P here has placed her physical condition into controversy by claiming personal injury damages, which is sufficient “good cause” for the court to order a physical examination.
So: OK to do without showing of good cause other than the need to verify the plaintiff’s injuries
44
can P respond to D's answer?
P is prohibited from responding to an answer unless ordered to do so by the court.
45
can a preliminary injunction involve money damages?
no. If money damages potentially available -> no irreparable harm
46
Are burdens of proof considered procedural or substantive?
substantive in a choice of law analysis under Erie, but procedural in a conflicts of law analysis under Klaxon
47
**Are statutes of limitation procedural or substantive?
Substantive
But when that state procedural rule determines the applicability of the state statute of limitations, the federal court must apply the state procedural rule. Consequently, although the federal rule specifies that an action commences upon the filing of a complaint with the court, the federal court in this action must apply the state court rule that the action does not commence until the complaint has been served. Because service here was not made within the two-year period of the statute of limitations, the federal court should grant the defendant’s motion to dismiss.
48
what's a Relief From Judgment motion?
New evidence not discovered earlier by atty despite reasonable diligence, allows relief from judgment
49
by when must you file motion for Relief From Judgment?
within a reasonable time, no later than one year following entry of judgment
50
when can you remove case from state court to a federal court located in the state where the state action began?
1) If that federal court has original jdx (so any state court sitting in that fed district usually suffices to be removable)
2) If a *D* requests removal
3) w/in 30 days of filing of doc that makes case removable (eg complaint)
3) If all defendants agree to it
4) not removable if any D is domiciled in the forum state (stay in your state court!)
51
When can the court order a party to pay the opposing party’s attorney’s fees?
ONLY WHEN the other side requests it by motion
52
A party (or party’s attorney) may seek sanctions that can include the payment of reasonable attorney’s fees and other costs attributable to violation of the ___ made by a party or the party’s attorney in presenting a pleading or other paper to the court.
certification
53
Among the certifications made by opposing side's attorneys is that . . .
factual contentions contained in a pleading have evidentiary support based on a reasonable inquiry.
54
attorney violates certification requirement in counterclaim, opposing party requests sanctions, attorney withdraws counterclaim within 21 days of being served the sanctions motion. what happens next?
attorney isn't subject to sanctions because withdrew counterclaim that had certification issue within 21 days of being served sanctions motion
55
Must supplemental jurisdiction arise out of same "common nucleus of operative fact" (ie same accident)
yes
56
In same accident, if one P1 meets 75K+ diversity against D, but P2 doesn't (complete diversity ok but only 5K), can the court exercise supplemental jdx to bring P2 in?
yes. efficiency
57
a federal district court with jurisdiction over a claim may exercise supplemental jurisdiction over additional claims that arise out of a common nucleus of operative fact. what happens if adding a PARTY defeats complete jdx?
then that PARTY is barred
58
when may PLAINTIFF file a third-party claim against a third-party defendant?
claim must fall under the court’s jurisdiction and relate to the same transaction or occurrence as the original complaint
59
when's venue proper?
Proper in a district where a substantial part of the events occurred
Proper in a district in which “any defendant resides, *if* all defendants reside in the same state that contains the district" (so if 1 D, where that D resides)
Property: Venue is proper if at least a substantial part of the property that is the subject of the action is situated in that district
60
Where may D who's not a US resident be sued?
in any judicial district
61
In an action filed under the Federal Tort Claims Act, venue is proper either in:
district where P resides, or where the act/omission occurred.
62
which 3 types of orders are exception to the rule that interlocutory orders cannot be immediately appealed?
Exceptions: injunction, or property case, or FNC denial = immediately appealable
63
in a federal court action based solely on diversity jurisdiction, supplemental jurisdiction is __ as to a claim by an existing P against a 3P brought in via D's impleader
precluded
64
A tried buying a car but wants to sue B and C for it. A sues B under federal question jurisdiction. In same case, A also sues C under state law for 25K. Proper to sue C even though it's for 25K, plus a state law claim, plus a second defendant?
Yes. When court has federal question jdx, court can exercise supplemental jurisdiction over a state-law claim that arises out of a “common nucleus of operative fact,” even though the federal court would not otherwise have subject-matter jurisdiction over the state-law claim, even if this state-law claim is against a different person than the federal law claim and even if the second claim doesn't meet the amount-in-controversy
65
does federal trial need a unanimous jury?
yes, fed = unanimous
66
does federal trial require 12 jurors to start?
no, only 6+ are required to begin
67
may an (1983) action against a federal officer or employee acting in an official capacity or under color of legal authority be brought in the judicial district in which *P* resides?
yes
68
for peremptory challenges, are several Ps/Ds considered one party?
Several Ps or several Ds may be considered as a single party for making peremptory challenges, OR the court may allow additional peremptory challenges and permit them to be exercised separately or jointly
69
what's required for a federal district court to transfer an action to another federal district court for the convenience of the parties and witnesses and in the interest of justice?
the transferor court must determine that the action *could have been initiated in the transferee court (i.e., subject-matter jurisdiction [diversity], personal jurisdiction over D, proper venue) or that all parties consent to the transfer.*
It is not sufficient that the transferor court merely determines that the transfer would be convenient for the parties and witnesses and in the interest of justice.
70
*common law* doctrine of forum non conveniens applies in which situation?
dismissal of actions that would be more appropriately tried in a foreign country. It is not applicable to the transfer of an action from one federal court to another
71
At the close of a civil negligence trial in federal court, the judge properly explained to the jury that under the law of respondeat superior, the employer cannot be liable if the employee is not also liable. The jury returned a verdict against the employer but not the employee, even though the plaintiff had presented evidence that the employer’s liability solely arose under the respondeat superior doctrine. The plaintiff requested that the jury be polled, and each juror confirmed the verdict as his or her own. Before the jury was dismissed, both the employer and the plaintiff requested that the court resubmit the case to the jury.
Can the court grant this request?
Yes, because the jury did not follow the court’s instructions in reaching its verdict.
When a jury’s verdict does not properly follow the court’s instructions, the court may set aside the verdict and order the jury to resume deliberations. In this case, because the court properly instructed the jury as to the law, the court can order the jury to resume deliberations, and would even be within its discretion to order a new trial
72
what's collateral estoppel?
issue preclusion
collateral = side ISSUE
73
can Party A conduct a depo *before* the deposing party (Party A) has made its mandatory initial disclosures?
no, requires leave of court
74
when can you raise a defense of subject matter jurisdiction?
at any time, even on appeal. Subject-matter jurisdiction cannot be waived (eg, you don't waive the right to challenge it just because you didn't bring it up as a defense earlier)
75
can an individual defendant be served by delivering process to a third party found at the defendant’s place of employment?
no, unless the person was an agent appointed by the defendant or otherwise authorized by law to receive service
76
When D files a pre-answer motion, such as a motion to dismiss for lack of personal jurisdiction, D has __ days after receiving notice of the court’s decision on this motion to file its answer
14. hurry up dude! you already filed a pre-trial motion, so after we deny that, we expect you to move quickly to answer!
77
A demand for trial by jury must be served within __ days after service of the last pleading directed to the issue that is sought to be tried by a jury
14
78
can a jury demand be made in a pleading, file separately or both?
both. must be in writing. waived if not timely filed (14 days after service of final pleading)
79
Impleader: in this case, the manufacturer’s (D's) third-party complaint alleged that the designer (non-party) was responsible for the flaw and that the manufacturer was not at fault. The manufacturer argued that he was not at fault and the consumer sued the wrong defendant. What's the problem with this third-party complaint?
Problem: the manufacturer’s (D's) claim against the designer (non-party) was not based on an assertion that the designer would be liable to the manufacturer for the manufacturer’s liability on the consumer’s claim.
Because the manufacturer did not claim the designer would be liable to it on the basis of indemnification or contribution if the manufacturer was found liable to the consumer, the manufacturer has failed to state a proper third-party claim
80
A sues B regarding a note. In the complaint, A alleges that B is the note's maker. B doesn't deny it, so it's deemed admitted. Court grant's A's summary judgment. In subsequent case b/t them on similar claim, can A get issue preclusion on B being the note's maker, thus denying B from litigating that issue?
No because that issue wasn't LITIGATED in first case; D chose to not deny it (leading to its admission) instead of litigating it
81
Each party is entitled to __ number of challenges for cause, such as bias or a personal relationship with a litigant
unlimited
82
For a class action that is certified under Rule 23(b)(1) or (2), what kind of notice are members to the class members, other than the named representatives, entitled to?
notice at the discretion of the court. court may order appropriate notice (e.g., publication)
83
While federal rules provides for personal jurisdiction by a federal court when no state court can exercise jurisdiction over the defendant, it requires what 2 things?
that the claim against the defendant be based on federal law, and that there be minimum contacts with the United States to justify personal jurisdiction in federal court
84
If the defendant agrees to waive service, then which day is deemed to be the date of service of process?
the date on which P files the waiver form with the court
85
can a federal court condition a new trial order on the plaintiff’s refusal to accept a damages amount less than the amount awarded by a jury (i.e., remittitur).
yes
86
In determining a state’s substantive law, is the U.S. district court there bound by the rulings of the state’s highest court?
yes
And if the state’s highest court has not spoken on an issue, however, the federal court must try to determine how the state’s highest court would rule on the issue, if it did consider it.
To make this determination, the federal court will generally look to any lower state-court decisions that have considered the issue and will follow a lower court’s view, unless it believes that the highest state court would not follow it.
87
A motorcyclist was involved in a collision with a truck. The motorcyclist sued the truck driver in state court for damage to the motorcycle. The jury returned a verdict for the truck driver, and the court entered judgment. The motorcyclist then sued the company that employed the driver and owned the truck in federal court for personal-injury damages, and the company moved to dismiss based on the state-court judgment.
If the court grants the company’s motion, what is the likely explanation?
Claim preclusion (res judicata) bars the motorcyclist’s action against the company.
Federal courts apply a transactional approach under which they bar a subsequent claim with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. Claim preclusion is limited to the parties or their privies.
In this case, the motorcyclist’s claim for damage to his motorcycle and his subsequent claim for personal injury arose out of the same transaction. As such, the claims should have been brought in the same action.
Although the company was not a party to the first action, the court could reasonably find that the company is in privity with the truck driver, who was a party to the first action, because their employer-employee relationship gives them a shared interest in establishing that the driver was not negligent
88
can you immediately appeal an order that appoints or refuses to appoint a receiver?
yes; there's a statutory exception to final-judgment rule for an order that appoints or refuses to appoint a receiver.
89
In a nonjury trial, is the court required to state findings/conclusions when ruling on a motion to dismiss or motion for summary judgment?
no
90
lawsuit 1: D won Issue X against P1
lawsuit 2: D wants to use the Issue X Win to preclude that issue from being litigated by P2 (friend). Can do D this? Why/why not?
no because P2 (whom issue preclusion is being used against) must have been a party in the first lawsuit (or in privity to a party).
so even defensive issue preclusion (which is okay) must be used against someone who was a party/privity in first suit
91
In a diversity action, is the district court *required* to apply the substantive law of the state in which the district court is located when there is no federal statute on point?
yes
92
which rule determine whether a court can exercise supplemental jurisdiction over an additional claim (by P2)?
In judging whether the claims are related, the test is whether they arise out of a “common nucleus of operative fact” such that all claims should be tried together
P2's claims need not meet amount in controversy, though cannot destroy complete diversity (if not people would use this to skirt the rules)
93
what are the 3 types of personal jurisdiction?
(1) in personam jurisdiction;
(2) in rem jurisdiction
(3) quasi-in-rem jurisdiction
94
What are the four bases for in personam jurisdiction?
(i) voluntary presence; (ii) domicile; (iii) consent; and (iv) long-arm statutes
What if there's no 1-3, and no mention of long-arm statute?
"Because most states’ long-arm statutes authorize jurisdiction to the extent permissible under the Due Process Clause, it must be determined whether the exercise of personal jurisdiction comports with *due process.*
95
What're the due process requirements for personal jurisdiction?
1) Minimum Contacts
• Purposeful Availment
• Specific and General Jurisdiction
```
2) Fair Play and Substantial Justice
• Forum State Interest
• Burden on Defendant
• Interest of Judicial System
• Shared Interest of States
```
96
To determine if P's motion to change venue was properly denied, what must you first determine?
whether the original venue was proper
97
For venue, a company may be sued where?
Co is deemed to reside in any judicial district in which the entity is subject to *personal jurisdiction* with respect to the civil action in question
In a state that contains multiple judicial districts and in which a defendant corporation is subject to personal jurisdiction at the time the action is commenced, the corporation “shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State.”
98
When is change of venue appropriate?
*For the convenience of parties and witnesses, and if it is in the interest of justice,* a district court may transfer any civil action to any other district or division where it might have been brought or all parties have consented to
This transfer may be ordered upon motion of a party or by the court on its own initiative, but it is available only when the jurisdiction and venue of the court considering the issue [the OG] are proper.
Then, it must be determined whether personal and subject matter jurisdiction would be proper in South before considering a change of venue.
99
A single plaintiff has a breach of K claim re: a painting, and separate breach of K claim re: land, both against a single D. Can they be joined?
Yes, a single P may join all claims against a single D, as long as there's subject matter jdx over the additional claims --> the additional claims' damages CAN BE AGGREGATED if one P/D (doesn't matter that they're from different transaction or occurrence)
100
When essay question asks whether P's allegation is sufficient to state a claim for [tort], what're the really asking?
whether it survives 12(b)(6) motion to dismiss
Under Rule 12(b)(6), a claim for relief can be dismissed if it fails to allege facts sufficient to support a cognizable claim. In deciding a motion under Rule 12(b)(6), the U.S. Supreme Court established a two-step analysis for adjudicating a motion to dismiss.
First, the court must identify and reject legal conclusions unsupported by factual allegations. This includes mere conclusory statements and assertions devoid of facts.
Second, the court should assume the truth or veracity of well-pleaded factual allegations and should include a “context specific” analysis that draws on the court’s judicial experience and common sense to determine whether the allegations plausibly give rise to an entitlement of relief.
101
Supplemental Jurisdiction
gets non-federal, non-diversity claims into federal court.
The test is whether the claim arises from a common nucleus of operative facts with the claim that originally got the case into federal court.
If it does, Supplemental Jurisdiction will be granted.
102
Erie
in a *diversity!* case, federal courts must apply the substantive law of the state in which the district is located to nonfederal causes of action, and apply federal procedural rules
103
what does court do if it's difficult to determine if an issue is substantive or procedural?
the court will first determine if there is a conflict between state and federal law. If a conflict exists, then the court will look to see if there is a federal statute or rule covering the issue, and if there is one, the court will apply federal law. If none exists, then the court will determine whether federal common law rather than state law should apply by looking at whether failure to apply state law will lead to different outcomes.
Example: It is not difficult to determine if breach of a land sales contract is substantive or procedural (lol), so no need to evaluate if a conflict exists.
104
On what issues is P entitled to jury trial?
In federal court, the right to jury trial is governed by the Seventh Amendment. The Seventh Amendment (lucky 7—jury) preserves the right to a jury trial in federal court in all “suits of common law” where the amount in controversy exceeds $20.
Right to a jury trial extends to legal issues, but not equitable issues. If the same case involves both legal and equitable issues, the legal issues should be tried first to the jury and the equitable claim to the court second.
Further, the demand must be in writing and it must be filed with the court within 14 days after service of the last pleading directed to the issue that is sought to be tried by jury.
Here, Buyer is seeking legal damages totaling $1 million for the fraud case, which far exceeds the $20 threshold requirement. With regards to the breach-of-contract claim, he is seeking specific performance, which is an equitable claim. Thus, he is not entitled to a trial by jury for this claim
105
In a case in federal court, is additur allowed if the forum state’s law allows additur?
No. Cases in federal court never allow additur, even tho the state substantive law does
106
Either party may demand jury trial (on an issue triable by jury) within 14 days of opposing’s party’s last motion on the issue. If neither party does, what’re the two options by the court?
Bench trial, or court can require jury
107
If a court has personal jdx over the parent company, it [does / does not] also have personal jdx over the subsidiary
does not
108
appeal re: sufficiency of the evidence can be heard only if...
proponent preserved it during trial by raising it (in JMOL) before case went to jury
109
What're the traditional ways of knowing if a court has personal jurisdiction over a defendant?
the state where the party is domiciled,
presence in the state when served, or
consent
IF NOT: long-arm statute -- full extent of Constitution (Due Process)
110
There [is / is not] diversity of citizenship if ANY plaintiff AND ANY defendant are aliens
no
111
motion for partial final judgment - valid? :O
yes. asks court for final judgment on some of the issues so they can immediately
court could also deny the motion if opposing party shows hardship (I can't pay, but would if I win on the remaining issues) and undue burden on appellate court (hear case twice)
112
can you raise a lack of personal jurisdiction during trial?
no, must be raised in a pre-answer motion, or not it's waived (because you're there!!)
113
collateral order doctrine
collateral, non-final judgment ruling may nevertheless be immediately appealed if the issue is effectively unreviewable on appeal of final judgment, lower court conclusively determined the issue, and the issue is separate from/collateral to the merits of the case's main issue
only examples thus far: immunity and double jeopardy
114
Attorney didn't object to improper jury instruction (so the issue's not preserved for appeal...). How can attorney persuade court to grant his motion for New Trial?
argue that the instruction was plain error that affect his client's substantial rights. might allow new trial even if instruction issue wasn't preserved
115
P seeks damages and injunction. right to trial?
yes because seeking damages; fact that P's ALSO seeking an injunction does NOT bar 7A right to trial from damages
116
is right to a jury a substantive issue (state) or procedural (fed)?
procedural, fed
117
a civil action in a state court arising under the ___ laws of that state can't be removed to a federal court
workmen's compensation laws
118
generally, an appeals court can't hear new issues, but they can if it's a purely __ question
purely legal question, when all the necessary facts are complete in the record (e.g., applicability of a particular statute in the case)
119
when the reason you seek relief from a judgment is "mistake, surprise, excusable neglect," then you can request it as late as ___ later
one year
120
if one side files a legal claim ($$ - jury), and the other files an equity counterclaim (injunction - court) out of common facts, which should be heard first?
when it's legal vs equity claim, the legal claim ($$ talks!) is tried first by a jury, then the court tries the injunctive claim.
The jury's finding of fat on the legal issue will bring the court on the equitable claim
121
does 3rd party D need subject matter jdx if it's counterclaim comes from common nucleus of operative fact as the underlying case?
no, bring in via supplemental jdx (efficiency)
122
is a party indispensable when D says his cousin claims an interest in the property that may be impaired in the action?
yes - can still proceed w/ case if not joined if court determine that "in equity and good conscience" it should still proceed
note: the absent indispensable party is considered for subject matter jdx, but court can still proceed if equity/conscience
123
**if driver wins state lawsuit for damages alleging manufacturer negligence, can driver then sue in fed court for injunctive relief (car recall)?
```
no :O
legal claim (damages) and equitable claim (injunction) merge (considered as same claim) and are barred by res judicata (claim preclusion)
```
124
when must the defenses of lack of personal jurisdiction, improper venue, insufficient process be raised?
in pre-answer motion or in answer (whichever comes *first*) -- if not, they'll keep bringing up new issues
125
could Congress allow trial by jury in injunctive/declaratory cases?
yes
126
through which motion can nonparties wishing to join a lawsuit join?
permissive *intervention* (3P's claim/defense shares common question of law or fact)
127
can a non-party invoke permissive joinder to join case?
no (that's for parties only); non-party must file permissive intervention
128
when jurors give answers incompatible w/ their verdict (judge had required answers), can court order an appropriate judgment according to the answers, notwithstanding the verdict?
no [maybe? unclear], but court may order new trial or direct jury to further consider its answers and verdict
regardless(?): cannot enter the erroneous judgment(?)
129
contract in fed lawsuit contains forum selection clause ("lawsuits re: this K must be brought in State C"). D files motion to transfer to State C. Must court move the case there
it's up to court's discretion to decide whether to transfer the case to the jurisdiction designated by the forum selection clause (even when suit is based on diversity, federal courts can weigh all factors, including FSC, when deciding a motion to transfer under the federal transfer statute)
130
if plumber appeared by filing a motion to dismiss, he's entitled to __ days notice before a hearing (re: default judgment)
7
131
can a party simultaneously file a renewed motion for judgment as a matter of law and a motion for a new trial
yee
132
"Federal Rules of Civil Procedure" = substantive or procedural law
procedural lol. apply it in diversity case in fed court (state substantive, fed procedural)
133
does claiming improper service in your answer waive the argument?
no, because every defense must be asserted in responsive pleading (answer) or by motion
134
if the president of D corporation is subpoenaed for depo but he says he knows little about the issue, what should Co's attorney do?
object to the exec's depo notice and move for a protective order excusing the corp's prez from appearing (so COURT decides whether D's right and that this guy shouldn't be depo'd)
135
a coupon settlement may only be approved after there's a ___
settlement hearing
136
can an interlocutory order deny a permanent injunction?
yes
137
money damages suit against foreign Co (which, prior to 1900s, you couldn't sue at common law). Ps demand jury trial (because money damages). Should jury be allowed?
jury cannot be allowed because in 1791 foreign Co's weren't a D in common law suit.
Seventh Amendment preserves: you have *right* to jury trial if this is legal ($) in nature (not injunction, etc) + would've been considered a common law suit in 1791 (only applies to FED trials)
138
p voluntarily dismisses own claims, then re-files same claims but addressing some defects, then does so again. okay?
no because second voluntary dismissal counts as an adjudication on the merits (you can only sue w/o prejudice once; second time is prejudiced, preventing third)
139
complaints must be answered within ___ days if there hasn't been a waiver of service
21 (u have 3 weeks; 2 would be too fast)
140
if D wants to remove case to federal court, must do so within ___ days of service of the complaint
30 (you have a month to move)
if 1st Ds miss the deadline, but last D properly asks to remove (later) w/in his 30 days, then 1st Ds can agree w/in last D's 30 days
141
can a D file a third-party complaint against a third-party D on the theory that the 3P D is the only liable party, and that the OG D isn't liable?
no (must file 3P claim for indemnification/contribution (he OWES me for the cost)
142
case filed in fed court in State A. Contract says state B must be venue. State A's precedent says forum-selection clauses are unenforceable; SCOTUS precedent says they're enforceable. D has moved to transfer case to fed in state B, citing forum selection clause + flour produced in B + majority likely witnesses in B. should court move to B?
yes, because Eerie -> fed procedural law -> federal venue law ("K forum selection clause is enforceable") -> B after court analysis (easier for Ws, evidence, etc)
rule: a forum-selection clause represents the parties' agt re the most proper forum, and it'll be enforced via motion to transfer "in the interest of injustice" (court may also transfer a case for convenience of parties/Ws), EVEN IF OG FORUM WAS IMPROPER (courts prefer transfer over dismissal)
143
can a party support its motion for summary judgment with its own personal affidavit?
yes
144
can a court order a non-moving party to respond to a motion for summary judgment?
no
145
**a federal court in diversity must apply the choice-of-law rules of the state in which ___
state where the federal court sits
146
A sues B Manufacturer for negligence re: faulty breaks, discovery shows B's fault, B leaves litigation, A wins default judgment. Now a teacher wants to sue on same theory. Does the default judgment preclude manufacturer from litigating merits of negligence in teacher's case?
No because default judgment means that the negligence issue was not actually litigated and determined
147
would a complaint (for lawsuit) re: fraud require info about D's statement of mind or specifics of the false submission claims?
yes, fraud's considered a special matter for pleading, requires more particularity, including circumstances giving rise to the claim
148
during trial, can *P* file motion to dismiss own action for lack of subject matter jurisdiction?
yes lol
149
when can judge modify pretrial order (which is binding for rest of litigation, eg re: which witnesses will testify etc)?
only to prevent manifest injustice
150
interpleader
a suit pleaded b/t two parties to determine a matter of claim or right to PROPERTY held by a third party
If, for example, A holds property that he knows he does not own, but that both B and C are claiming, A can sue both B and C in an interpleader action, where B and C could litigate who actually owns the property. Interpleader avoids the problem of A being sued separately by both B and C, and potentially losing the same piece of property twice.
151
is a court required to conditionally rule on a submitted motion for new trail if/when it grants a renewed motion for judgment as a matter of law?
yes. so if court grants renewed JMOL, court should also conditionally rule on motion for new trial
152
for motions to transfer, remember that if court has to apply state A law, a court sitting in state A would be more ___ with it
familiar
153
action filed in state A, which in a case meant that state A choice of law rules would apply, which meant state A rules would apply. if case transferred to state B (where their choice of law rules say state B law would apply), would state A or B rules apply in state B after venue change?
still use state A. prevent forum shopping (cant say ugh I dont like state A rules, let me move to state B so B rules apply)
154
motion for summary judgment vs motion for judgment on the pleadings
MSJ - final judgment is dependent on facts in the record
| Judgment on pleadings says judgment depends solely on the pleadings
155
when served with request for waiver of service, will D be penalized for not waiving?
yes, must waive or face penalties, unless shows good cause (it's a procedural rule, so fed rules)
156
what's abstention?
only involves situations where the state as a great interest in being the first to evaluate the matter (eg where a state court is interpreting a state statute not yet settled under state law, or where fed suit would interference w/ pending criminal prosecution)
157
case involves state law that appears to deny due process (denying a property right -> a business license, rational basis). Can a fed court hear the case?
yes because DP Clause is implicated (fed question)
158
the right to practice a trade/procession = liberty right?
yes, economic liberty -> due process
159
***A properly sues B in federal diversity. B countersues, $2,500 claim, unrelated to OG claim. Does the counterclaim have diversity jdx? supplemental?
no diversity because permissive (non T/O) counterclaim (like here) must be 75K.1+. If not, people would countersue for tiny shit that they shouldn't be permitted to sue about in fed court in the first place since it's so tiny
no supplemental because not part of same transaction/occurrence (if it were, then okay to be below 75K because it's so RELATED to OG that we might as well deal w/ it now)
160
can P use supplemental jurisdiction to overcome lack of diversity?
so A sues B, then A bring in another A via supplemental. okay?
no, can't destroy complete diversity
161
is a license a property right created by state law that cannot be revoked w/o due process?
yes
162
if D's defense to P's complaint is that he wasn't of age when he made the K (which would be a valid defense), can D plead this as an *affirmative* defense in answer?
yes: "incapacity to contract" - will be waived as an affirmative defense if not timely raised
163
if P fails to supplement mandatory disclosures, can P respond to MSJ w/ new affidavit that has info not in the disclosures?
no because that's not in the record (absence must be substantially justified)
164
if D fails to renew motion for judgment as a law after the trial (even though they filed regular JMOL at correct time), does D forfeit contention on appeal?
yes
165
are cops immune from liability whenever they act w/in scope of employment?
no, may be sued if violated 'clearly established' statutory/constitutional right
166
issue preclusion is only asserted BY someone who _____
and only AGAINST someone who....
BY someone who was a party/privity w/ party in previous case
AGAINST someone who was a party/privity w party to previous case
167
claim preclusion requires what re: who the parties are
must be same parties (same P as P and D as D)
168
Can the Seventh Amendment right to jury trial be applied to statutory claims that didnt exist when the amendment was drafted?
yes, for "kinds" of cases that existed at the time, NOT to exactly the only cases that did (so: analogize)
169
which defenses are automatically waived if not provided in very first pre-answer / answer motion? And which defense can be raised in a later motion?
bring up first or it's waived:
lack of personal jdx, improper venue, insufficient process, insufficient service of process [mneumonic: process, me, here]
can bring up later: failure to join a party
170
venue is proper where...
judicial district in which a substantial part of the events/omissions occurred
venue (staples center) = event!
171
if 2 Ps jointly sue D but they were improperly joined (because arise out of different transactions), should O file motion to sever so that Ps must bring separate lawsuits, or should D file motion to dismiss for misjoinder of parties?
motion to sever, because misjoinder of parties is not a ground for dismissing the action, since the court's given wide discretion to order separate trials
172
relation back doctrine. what is it? how strict?
amending complaint to add new claims. if OG was done under statute of limitations, newly-added claim relates back to that date (so it's timely) if both arose from same conduct, transaction, occurrence
courts have interpreted this very NARROWLY -- focusing on notice. If D reading the OG complaint would not be placed on NOTICE of the essence of what will late be claimed in the amended complaint, then no relation back
eg no relation back if OG claims no informed consent before surgery, and amended claims negligence during the surgery
173
removal to fed court is not allowed if D is a citizen of the state in which the action was brought, but only in a ___ action
diversity (not fed issue? stay in state court..your home state..you're fine)
but for fed Q, feds want to deal w/ it
174
***___ governs the claim-preclusive effect of a dismissal w/ prejudice made by a federal court sitting in diversity
federal common law
so two identical class actions, one in fed law, another in state.
if fed class action is dismissed w/ prejudice, then the state court will look to FED preclusion law to determine it's preclusive effect, since the judgment was entered in FED court
175
**when may a third party intervene?
permissively and as of right
permissively: common Qs of law and fact, doesn't destroy diversity (claim must exceed 75K, citizenship)
as of right: 3P's interest would be impaired in its absence
176
**Minimum contacts requires a showing of purposeful availment and foreseeability.
What's purposeful availment?
The defendant must have purposefully availed himself of the privileges of conducting activities in the forum state, thus invoking the benefits and protections of its laws.
177
**Minimum contacts requires a showing of purposeful availment and foreseeability.
What's foreseeability?
The defendant also must know or reasonably anticipate that his activities in the forum render it foreseeable that he may be hauled into court there
178
when may a court relieve a party from final judgment (post-trial)
for fraud, misrepresentation, or other misconduct by opposing party (eg opposing party showed evidence he was permanently paralyzed, won $5M, then founding jogging 2 months later) (order for new trial is only allowed 28 days after trial)
judge then decides whether it was fraud, or hold a hearing
179
Generally, D must file a notice of removal to fed court w/in __ days after service on D of the complaint
30 (let's move w/in the month)
but if a case was not initially removable, D has 30 days after the case becomes removal to file a notice of removal
but 1 year max from OG date for diversity cases
180
A seeks injunction against B in state court. A wants jury trial. grant?
maybe, because Seventh Amendment (right to jury, which excludes injunctions) does NOT apply to the states. So state law determines whether parties have right to jury in state courts
181
In fed court, cyclist brings class action re: defective design ($). Requests jury, although class actions historically were devices available only via equity. allow jury?
yes because the underlying claim (design - $ - jury) is the basis for an action at law - doesn't matter that it's being presented through class action
182
if D wants to file motion for sanctions for P's bad faith complaint, D must serve it w/ the court or opposing party?
If opposing party doesn't withdraw or correct matter w/in __ days, then moving party can file motion w/ court or opposing party?
opposing party first. then 21 days, court
183
**summary judgment
no genuine dispute as to any material fact
it's a decision on the merits, after discovery
184
for pre-answer motion to dismiss re: personal jurisdiction, can court consider affidavits?
yes
185
does mental issue need to be put into controversy from beginning of case for there to be a mental exam?
no, it can be put into controversy during the case, including by the opposing party (eg psychologist saying that driver might be predisposed to rear end people and he's done it several times before - discovered during discovery)
186
does a court have discretion to deny a preliminary injunction, even when the requirements are met?
yes :O
187
***when does appellate court use 'de novo'?
when 'harmless error'?
when clearly erroneous
when abuse of discretion?
de novo - purely legal issue
harmless error - IMPACT of erroneous evidentiary ruling
abuse of discretion - decision to allow/not allow evidence
clearly erroneous - factual issue
188
an OPPOSITION to a motion for summary judgment should be supported by affidavits, declarations under oath (eg asking for more discovery and describing the desired discovery), and other materials in the record
don't oppose MSJ by just saying "it should be denied because a central issue will be mfr's credibility re: distribution, and only a jury can decide those questions" -- need evidence or explain w/ a declaration that more's needed
189
**when a second court decides which jurisdiction's *preclusion law applies, the second court will apply the preclusion law of the first or second state?
first
so if first court is state court in state A (and bans preclusion), and second court is fed court in state B (allows preclusion), second fed court must follow state A's preclusion rules
190
may renewed JMOL be granted if court determines that a reasonably jury didn't have a legally sufficient evidentiary basis to find the damages that it did (only 1K, wanted 175K)?
yes
191
does a dismissal with prejudice operate as a final judgment on the merits (thus claim preclusion)?
yes
192
**D lost but had objected during trial to evidence that P offered towards the central issue, and D still believes (2 weeks after trial) that it was improperly admitted. Is the only option to file an appeal? Or can he motion for new trial by arguing that the evidence was mistakenly admitted?
File a motion for new trial: can do so w/in 28 days if party believes there was an ERROR during trial (here, admissibility), like errors re admissibility, jury instructions, juror misconduct, excessive or inadequate verdicts, or if verdict was against manifest weight of the evidence
193
when D files motion for sanctions, they must..
make it separately from other motions, and give P the opportunity to withdraw/correct the offending document, requiring moving party to delay the sanctions motion w/ the court
194
Motorcyclist loses property damage (to motorcycle) case against truck driver. Can motorcyclist then sue for personal injuries arising from that same accident? if not, due to issue preclusion or claim preclusion?
claim preclusion -- prevents P from splitting his cause of action. When P loses a judgment, all possible grounds fro relief arising out of the same transaction or occurrence (eg property damage, personal injury damage, emotional distress, etc) are battered in future lit b/t same parties via claim preclusion
195
in fed rules, could a potential defendant who might be joint and severally liable be a necessary party? eg D Corporation says surgeon committed malpractice and files motion requesting to join him
no not a necessary party
196
Can a case be transferred from a federal court to a state court under a motion to change venue?
no
197
if D was serviced in state X while vacationing there, but no events occurred in state X and all Ds aren't from state X, and there are other proper venues in other states, can the case nevertheless take place in state X since D was served there?
no, when there ARE other districts were action could've been brought, then you cannot try D in a venue only because he was served there (state X vacation).
You can only do so if no other state would be proper venue (so: "proper venue where served" is only a last-case scenario where no other venue is possible)
198
case 1: class action, final judgment given
case 2: man (class member), alone, bring suit against same company. can he collaterally challenge the adequacy of representation of the class members, even though that class action case is over?
yes :O class member will not be bound if there was inadequate representation in the first lawsuit
199
is transfer permitted from an improper venue to a proper one?
yes, instead of dismissing the case
key is whether the venue that it's being transferred to is one where it could've originally been brought (ie proper venue). just because P/D consent does NOT make it proper
200
can a party make alternative and inconsistent allegations in its complaint?
yes, if they're made in good faith (eg you can say you think he lied so X, or that he didn't lie so Y - because u dont know if he lied or not, and that affects both allegations. but you can't say u relied on D's words, then say u did not rely on them)
201
until when can interrogatories be served?
until the parties have conferred to arrange for initial disclosures and prepare a discovery plan
202
is okay for interrogatories to ask re: opinions/contentions, even on the application of the law to facts?
yes okay
203
if P Bank sues D Student because D didn't make loan payments, and D files MSJ w/ affidavits of witnesses saying D did pay at a bank mtg, should bank respond w/ evidence that witnesses aren't credible, if not risking losing the MSJ?
yes
204
when fed court has federal question jdx over a claim, and exercises supplemental jdx over related state claim, then P withdraws the fed claim, does the case need to immediately be moved to state court?
no because the court may have good reason to maintain its supplemental jdx over the state law claim (but if it doesn't, then remand to state court)
205
**fed courts cannot exercise jurisdiction over __ or __ cases
domestic relations (eg divorce); probate proceedings (no subject matter jurisdiction)
206
can a federal judge order a new trial on its own for any reason that would justify granting one on a party's motion?
yes
207
**is the juror's misunderstanding of the jury instructions a ground for requesting a new trial (eg if a judge overheard jurors, after judgment, at coffee shop, saying the instructions were maddeningly unclear)
yes :O
208
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209
AFTER final judgment's entered, when there's newly discovered evidence showing D should've definitely won (29 days later - so no new trial), what should losing D attorney do?
file for motion for relief from judgment
court won't grant it if D should've reasonably found the evidence earlier
210
**statutes of limitations and rules for tolling (pausing SOL) statutes are procedural of substantive (for Eerie)?
substantive (SOL = S substantive)
so federal diversity case must use the *state's* statutes of limitations/tolling laws
211
is a remand immediately appealable?
yes, it's a final order
212
what's a default judgment?
a judgment, with the same effect as any other judgment, that's entered because D didn't oppose the case
213
when can you move to strike?
court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter on its own or by party motion
most courts are reluctant to do so
214
when can a third party intervene?
permissively - when 3P's claim doesn't destroy complete diversity + exceed 75K + common question of law/fact
215
"contractor is ENTITLED to a jury if state law permits" - is this a potential correct answer?
yes
216
how many jurors must fed court trial case have?
6
217
**P should submit BOTH motion for new trial and, in the alternative, a motion for remitter because, under 7A, a federal court CANNOT simply disregard the jury's damages award and lower it
the court must offer the hospital a choice b/t remittitur (lower damages) AND a new trial
218
**if a federal trial is re: Title VII's employment laws, it's diversity or federal question?
FEDERAL question, so apply FEDERAL substantive + procedural
219
***is additur allowed in federal cases?
NEVER if case is in federal court, even if state substantive law allows it
220
**in federal diversity, do you apply federal or state remitter law?
state. RS: Remitter-State
221
**does state's long-arm statute apply via Eerie analysis or Federal Rules?
Federal Rules (the Rules themselves say long-arm statutes are applicable)
222
**the preclusive effect of a federal court's judgment is determined by...
FEDERAL common law, which incorporates state law.
trick: PRECLUDED from vandalizing FEDERAL buildings (which are in a state)
still has status of FEDERAL law
223
**in determining whether to apply federal common law in diversity cases whose subject matter bears some relation to a federal statutes, courts will...
balance the fed and state interests in which law to apply.
Here, the court would likely find torts relating to a federal military base persuasive enough to apply federal common law
224
appellate court MAY accept the district court's interlocutory appeal request when the trial judge certifies that the interlocutory order....
(1) involves a controlling question of law, as to which there's substantial ground for difference of opinion, and (2) immediate appeal from the order may materially advance the ultimate termination of the litigation
225
**fed interpleader does NOT require..
no personal jdx :O
nor amount in controversy (only $500!)
only diversity b/t 'any two' people
VERY LOW BAR
226
for motion for summary judgment, if D fails ON THE RECORD to address P's assertion of fact, then the court may consider P's fact as...
undisputed
227
are repeated derogatory comments enough to order new trial?
yes, even if counsel didnt object to each one
228
party wants to add 3P to suit, says they're needed. if that party is found to be indispensable, must court dismiss case if they cant be joined?
yes
229
what if court finds that 3P's interests would be impaired but not prejudiced. must court dismiss case if they cant be joined?
no
230
in initial disclosures (names/cell numbers etc) that come before discovery requests, who does D need to list?
disclose only witnesses that the party intends to use to support its claims/defenses
