Fed Civ Hypo Notes - WIP

Question 1

How many days after the initial discovery meeting must the parties provide names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses? And what other disclosures are required at that time?

Answer 1

14 days, unless otherwise stipulated or set by court order.

Other disclosures:
(1) copies or descriptions of documents, electronically stored information, and tangible things that are in the disclosing party’s possession or control and that the disclosing party may use to support its claims or defenses, unless solely for impeachment, (2) computation of damages claimed by the disclosing party and copies of materials upon which the computation is based; and (3) copies of insurance agreements under which an insurer might be liable for all or part of any judgment that might be entered.

Question 2

During discovery, electronically stored information need not be produced if the responding party identifies it as:

Answer 2

Not reasonable accessible because of undue burden or cost.

Question 3

Work product is not discoverable if:

Answer 3

Made in anticipation of litigation

Question 4

Parties may obtain discovery of any _______ matter that is relevant to any party’s claim or defense and proportional to the needs of the case.

Answer 4

Non-privileged

Question 5

When is the opinion of an expert consulted in anticipation of litigation discoverable?

Answer 5

If a party intends to call the expert as a trial witness.

If not, then it’s only discoverable upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means.

Question 6

When answering an interrogatory that would be timely and burdensome to respond to, what is the responding party’s option?

Answer 6

They may choose to conduct the search, or allow the other party to search the records themselves.

Question 7

For venue purposes, a business entity defendant is deemed to reside in:

Answer 7

Any judicial district in which the defendant is subject to the court’s personal jurisdiction with respect to the action in question. (state where action took place under long-arm statute, or PPB or incorporation state)

Question 8

When a transfer is based on the ground that the venue was improper, which law applies in the transferee court?

Answer 8

The law of the transferee court.

Question 9

If a D failed to object to the venue before filing their answer, when can the court nevertheless grant motions for venue transfer?

Answer 9

When both venues would be proper, and the transfer would not prejudice either party (time case has been pending is relevant). In this case, the transfer would be “in the interests of justice”.

Question 10

If a party was in the process of moving from state A to state B, but was involved in an accident in state C before the move was completed (and was thus forced to remain in state C for a time), where is venue proper?

Answer 10

State A (still current residence), and State C (where action accrued).

State B had not become the party’s domicile yet because he had not maintained a physical presence there, despite having the intent to move there.

Question 11

What is the doctrine of forum non conveniens?

Answer 11

Grants the court the discretion to decline to hear a case in deference to a court in another state or country if it determines that the other forum provides a substantially more efficient, convenient, and fair forum.

Question 12

When may a CLERK sign and enter a judgment for an amount set forth in a plaintiff’s affidavit following a default by a defendant (and D is not an infant or incompetent)?

Answer 12

When the Plaintiff’s claim is for a SUM CERTAIN and the default was entered because the Defendant failed to appear.

Question 13

Under certain circumstances, a _______ may be issued without notice to the other party.

Answer 13

Temporary restraining order (TRO)

A court may grant, at its discretion, an ex parte TRO if the moving party gives specific facts in an affidavit or in the verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition.

Question 14

In federal court, and without a court order, what is an authorized way to serve process on an individual?

Answer 14

Following the state rules for service of process.

(Such as posting the summons and complaint on D’s property, emailing a copy to D, etc., which are not normally authorized in federal court.)

Question 15

In a federal question case, the action is always deemed commenced for statute of limitations purposes when:

Answer 15

The complaint is filed with the court.

This is the federal rule for federal question cases. For diversity (civil) cases, state rules could apply for tolling the statute of limitations (such as serving process on the opposing party).

Question 16

When can a party file a motion for a new trial?

Answer 16

No later than 28 days after judgment was entered, and if they believe that there was insufficient evidence for a reasonable jury to find in favor of the other party (just as an example).

Question 17

Who, and upon whom, may service be made?

Answer 17

Any person at least 18 years old and not a party can deliver service.

Service may be rendered by delivering it to the party’s dwelling or place of abode with someone of suitable age and discretion who resides there.

Question 18

When may a Defendant contractor bring a third-party claim against a subcontractor?

Answer 18

When the contractor is claiming that the subcontractor is liable for the contractor’s liability to the plaintiff.

Question 19

May a party appeal the denial of an injunction?

Answer 19

Yes, because federal law permits appeal of orders denying an injunction.

Interlocutory orders denying an injunction may be appealed in the federal court system. This constitutes an exception to the general rule that interlocutory orders are not appealable because they are not final.

Question 20

During a trial, when may a motion for JMOL be filed?

Answer 20

At any time before submission of the case to the jury.

The moving party must specify in its motion the judgment sought and the law and facts on which the party is entitled to judgment. Note, however, that the nonmoving party must have been heard on the issue prior to the motion.

Question 21

What is a ground for relief from judgment for which a motion MUST be made within a reasonable time not to exceed one year?

Answer 21

That there is newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial.

Other grounds not limited to a year are:

1) That the judgment is void
2) That the judgment has been satisfied
3) That the judgment has been reversed.

Question 22

What standard are federal trial courts required to apply when considering a motion for a new trial based on the excessiveness of the verdict?

Answer 22

State law standard.

Question 23

To receive a jury trial, a party generally must:

Answer 23

File a written demand and serve it on all parties within 14 DAYS after the service of the last pleading directed to the jury-triable issue.

Otherwise, the right to a jury is deemed waived. Note, however, that in the absence of compelling reasons to the contrary, a court should grant relief from the waiver if the issue is normally tried by a jury.

Question 24

Is amending the complaint allowed after the verdict has been returned?

Answer 24

Yes, conditionally. An issue not raised by the pleadings is treated as if raised by the pleadings if it is tried by the parties’ express or implied consent. In such a case, a party may move at any time, even after judgment, to amend the pleadings to conform them to the evidence and raise the unpleaded issue.

Question 25

When is it proper to obtain a default judgment against an opposing party?

Answer 25

When:

1) The plaintiff’s claim against the defaulted defendant is for a sum certain;
2) The default was entered because the defendant failed to appear;
3) The defaulted defendant is not an infant or incompetent person, and
4) The damages amount requested is not greater than the amount requested in the complaint.

Question 26

How would you describe the roles of the judge and jury as finders of fact?

Answer 26

If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first by the jury, and then the equitable claim is tried to the court.

The jury’s finding on fact issues will bind the court in the equitable claim.

Question 27

When can a renewed motion for JMOL be filed and properly granted?

Answer 27

Only when the party already previously filed a motion for JMOL at some point during the trial on the same issue.

Question 28

What is required for an otherwise nonappealable interlocutory order to be appealable under the Interlocutory Appeals Act?

Answer 28

1) The trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and an appeal would materially advance the conclusion of the case, and
2) At least two appellate court judges agree to hear the appeal.

Question 29

The general rule is that only final orders may be appealed. However, certain interlocutory orders may be appealed as of right.

Which of the following is immediately reviewable on appeal even if it is not a final order?

1) An order dismissing defendant’s counterclaims
2) An order regarding copyright claims
3) An order granting an injunction

Answer 29

An order granting an injunction.

Interlocutory (i.e., nonfinal) orders that may be immediately appealed include: (i) an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction), (ii) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships, (iii) decrees in admiralty cases that find liability but leave damages to be assessed later, (iv) a patent infringement order where only an accounting is wanting, and (v) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.

Question 30

As a general rule, a notice of appeal must be filed with the district court within ____ days from the entry of judgment.

Answer 30

30 days. (Rule 3 and 4 of the FRAP.

The filing period is extended to 60 days when the United States is a party to the action.

Question 31

When an action involves multiple claims or parties, and a judgment is entered that disposes of only some of the parties or claims, the judgment:

Answer 31

Is immediately appealable only to the extent that he court makes an express determination that there is no just reason for delay.

Question 32

When there is more than one claim in an action, and summary judgment is rendered for one of those claims but not the others, is that summary judgment immediately appealable?

Answer 32

No, the court’s order is not final and thus not appealable unless the court expressly determines that there is no just reason to delay entry of judgment. Unless the trial judge makes that express determination, its order determining the merits of fewer than all of the claims is not a final judgment and is not appealable.

Question 33

If no timely objection is made regarding jury instructions, what is the losing party’s rights on appeal?

Answer 33

The appeals court may review the court’s refusal to include the instructions, applying a plain error standard of review.

Question 34

If a motion for JMOL was denied, and the subsequent renewed motion for JMOL was denied, along with the motion for new trial, what is the appropriate standard of review for both?

Answer 34

De novo for the renewed motion for JMOL, and abuse of discretion for the new trial motion

When an appellate court reviews a trial court’s ruling on a post-trial motion for judgment as a matter of law (including a renewed one), it employs a de novo standard. It does so because the issue is one of law. In contrast, when an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a clear showing of an abuse of discretion. Note that when a renewed motion for judgment as a matter of law and a motion for a new trial are made in the alternative and the renewed motion is granted, the court rules hypothetically on the new trial motion so that no remand is required if the ruling on the judgment as a matter of law is subsequently reversed on appeal.

Question 35

On what grounds may a court relieve a party from a final judgment order?

Answer 35

(i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; (iii) fraud, misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment

Question 36

If no federal question is involved and diversity does not exist when a case is commenced, removal will:

Answer 36

be permitted if the nondiverse parties are thereafter dismissed from the action, the requirements for diversity jurisdiction are then present, and not more than one year has passed since the case was commenced in state court.

Question 37

Describe the relationship between removal and venue?

Answer 37

In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state. This is because venue for an action removed under section 1441(a) lies in the federal district court “embracing the place where such [state] action is pending.”

Question 38

Which party can exercise the right of removal?

Answer 38

Only the defendant.

A plaintiff cannot exercise the right of removal, even on the ground that a counterclaim against him could have been brought independently in a federal court.

Question 39

When a defendant attempts to remove a case from state court to federal court, the state court _______ have had subject matter jurisdiction over the case.

Answer 39

“Need not”

By statute, the state court need not have had subject matter jurisdiction over the case. A federal court may decide a claim in a removed civil action even if the state court had no subject matter jurisdiction.

Question 40

What is the time limit for a D to file for removal after discovering that their case is removable? (e.g., diversity was destroyed due to settling with a separate non-diverse defendant)

Answer 40

Notice of removal must be filed within 30 days after D discovered the case had become removable.

There are essentially two time restrictions on removal of a diversity case to federal court: (1) a case based on diversity must be removed within 30 days of the defendant’s receipt of a copy of the paper (order, motion, etc.) that makes the case removable; but (2) in no event may the case be removed more than one year after it was commenced in state court.

Question 41

Can a federal court case with proper SMJ be removed to state court?

Answer 41

No, because removal to state court is not available for cases that are properly filed in federal court and that are within the federal court’s subject matter jurisdiction.

Only cases that are brought within state court may be removed to federal court based on either a federal question being presented or on diversity of citizenship.

Question 42

Under the doctrine of issue preclusion (collateral estoppel), a judgment in a prior case will be sufficient to bind the plaintiff or defendant in subsequent actions on different causes of action as to issues that were:

Answer 42

Actually litigated and essential to the judgment.

Question 43

For res judicata to apply, it is not necessary that the judgment be:

Answer 43

Satisfied

Before merger or bar apply, it must be shown that

(i) the earlier judgment is a valid, final judgment “on the merits”;
(ii) the cases are brought by the same claimant against the same defendant; and
(iii) the same “cause of action” (or “claim”) is involved in the later lawsuit.

Question 44

When res judicata is in effect, what is it called when the claimant won the earlier lawsuit?

The defendant?

Answer 44

Claimant: The claim is merged into the prior judgment

Defendant: The claim is barred by the prior judgment

Question 45

What are the requirements for a party to be bound by issue preclusion?

Answer 45

(i) there must have been a final judgment;
(ii) the issue must have been actually litigated and determined;
(iii) the issue must have been essential to the judgment; and
(iv) the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action.

Question 46

Is a voluntarily dismissed claim barred from being brought again?

Answer 46

No, a plaintiff has the right to dismiss an action one time without prejudice before the defendant serves its answer.

Question 47

If a nonparty asserts issue preclusion offensively against the losing party of another case to establish the merits of the earlier claims in a new case, what would be the likely reason they would succeed?

Answer 47

The court determined that it is fair and equitable to allow the nonparty to use issue preclusion (collateral estoppel) offensively.