Fed Civ Pro Rules

Question 1

Personal Jurisdiction - My Parents Frequently Forgot to Read Children’s Stories

Answer 1

MINIMUM CONTACTS

PURPOSEFUL AVAILMENT

FORESEEABLE DEFENDANT

FAIR PLAY AND SUBSTANTIAL JUSTICE

RELATEDNESS OF CONDUCT CONVENIENCE

STATES INTEREST

Question 2

Elements of Collateral Estoppel - If I PAWN something, I am precluded from taking issue if it gets sold.

Answer 2

IDENTICAL issue

PARTY to the first proceeding (BUT mutuality considered)

ACTUALLY litigated in first proceeding

WAIVED assertion rights by failing to litigate in prior proceeding (with full and fair opportunity)

NECESSARY to the outcome

Question 3

Minimum Contacts, Fair Play & Substantial Justice - Minimal contact with PELICANS does not make you Best Friends

Answer 3

PURPOSEFUL availment - Hanson v. Denckla

EVIDENCE (location of witnesses and evidence)

LAW (choice of law - forum shopping?)

INITIATION (did D initiate contact with forum state?)

CAUSE of action - where did cause of action arise?

ALTERNATIVE forum available? fair & convenient?

NATURE & quality of activities - systematic vs. sporadic, direct vs. indirect, dangerous activity?

STATE’S interest in providing a forum for its residents and protecting health & safety concerns

BURDEN of parties - economic cost, risk of multiplicity of suits, relative burden on defendant

FORESEEABILITY - WW Volkswagen (likely they’d be “hauled into court”)

Question 4

Challenging The Complaint - Defendant PICT VALID reasons to challenge the complaint.

Answer 4

PLEADINGS (motion for judgment on the PLEADINGS)

INSUFFICIENCY of process (motion to dismiss)

CLAIM (failure to state a CLAIM - motion to dismiss)

TRIABLE (no TRIABLE issue of material fact exists as a matter of law – motion for summary judgement)

VENUE (improper – motion to transfer)

ALLEGATIONS that are irrelevant, impertinent, scandalous (motion to strike)

LACK of jurisdiction over subject matter or person (motion to dismiss)

INDISPENSABLE (failure to join INDISPENSABLE party - motion to dismiss)

DEFINITE (motion for more DEFINITE statement of claim against defendant)

Question 5

Requirements for Certification of Class Action - DECANT vintage 23(b) before you pour it into a class.

Answer 5

DEFINABLE (roughly DEFINABLE class of which P is a member)

ECONOMY (judicial ECONOMY served)

COMMONALITY (claims have COMMON legal theory or arise out of same transaction or occurrence)

ADEQUACY (named parties must ADEQUATELY represent class)

NUMEROSITY (potential Ps too NUMEROUS for joinder)

TYPICALITY (claim of named P must be TYPICAL of the class)

23 B - action must fall within one of three categories of FRCP 23 (b)

Question 6

Discovery Devices - DADIES discover what you don’t want them to know.

Answer 6

DEPOSITIONS (written or oral)

ADMISSIONS of facts

DOCUMENTS related to cause of action (if for good cause)

INTERROGATORIES

EXAMINATIONS (mental or physical)

SUBPOENAS (duces tecum)

Question 7

Basic Jurisdictional Requirements - The due process clause requires you to MOP up before jurisdiction can be asserted

Answer 7

MINIMUM contacts with the state

OPPORTUNITY for defendant to be heard

PROPER service of process upon defendant

Question 8

Jurisdiction Over Corporations - To obtain independent personal jurisdiction over defendant corporation, DIAL DC.

Answer 8

• *D**OMICILIARY (defendant is a domiciliary)
• *I**N-STATE service on a non-domiciliary
• *A**GENT of corporation served (must be designated) LONG-ARM jurisdiction over non-domiciliary
• *D**OING business in-state
• *C**ONSENT to state’s jurisdiction by defendant

Question 9

Long-Arm Jurisdiction Over Tortious Conduct - Long-arm jurisdiction extends to non-resident tortious DEER

Answer 9

DERIVES substantial revenues from goods used/consumed or services rendered in-state

ENGAGES in persistent course of conduct in-state

EXPECTS (or reasonably should expect) that tortious acts would have consequences in-state AND defendant derives substantial revenues from interstate/int’l business

REGULARLY solicits in-state business

Question 10

Jurisdiction Over Matrimonial Action - When DADA doesn’t live in-state, mama can still seek maintenance and child support

Answer 10

• *D**OMICILE (state was most recent marital DOMICILE of parties)
• *A**BANDONMENT took place in-state
• *D**ECREE (claim for support accrued under state DECREE or law)
• *A**GREEMENT (parties executed a separation AGREEMENT in-state)

Question 11

Consent To Jurisdiction - That lawyer SCAMS defendants into consenting to jurisdiction.

Answer 11

• *S**TIPULATE in open court, pleading, contract or letter
• *C**AUSE (assert unrelated CAUSE of action in answer)
• *A**NSWER (serve an ANSWER that fails to raise JX objection or claiming improper service while failing to move for summary judgment)
• *M**OTION to dismiss that fails to raise jurisdiction objection
• *S**UMMARY (motion for SUMMARY judgment on related cause of action - seeking affirmative relief in-state)

Question 12

Sufficiency of Service of Process - MIC is SAD because he was properly served with process.

Answer 12

MAILING process to defendant who must then consent to such service

IN-HAND personal delivery to the named defendant

COURT authorized method of service of process

SUITABLE (delivered to person of SUITABLE age & discretion at last known address ,then mail copy & file)

AGENT designated for service

DILIGENCE(due DILIGENCE - nail, mail & file)

Question 13

Service on Corporations - DOGMA dictates who to serve process on a corporation.

Answer 13

• *D**IRECTOR
• *O**FFICER
• *G**ENERAL Agent (e.g. cashier)
• *M**ANAGEMENT
• *A**GENT authorized by corporation, whether expressly, impliedly or by estoppel

Question 14

Motion To Vacate Default Judgment - It takes 1 REAM of paper to get a default judgment vacated.

Answer 14

• *1** year to file motion
• *R**EASONABLE EXCUSE for default

AFFIDAVIT of MERIT setting forth meritorious defense to plaintiff’s claim that shows how plaintiff won’t be unreasonably prejudiced by re-opening the case

Question 15

Joinder of Parties On the Basis of Vicarious Liability - A POPE is held liable for the acts of others.

Answer 15

• *A**GENT
• *P**RINCIPAL
• *O**WNER of property

PARTNER EMPLOYEE

Question 16

Claims Not Barred By Tolling Under Statute of Limitations - The claim WAS time-barred but plaintiff LOPED into court anyway.

Answer 16

• *W**RITTEN acknowledgment by defendant of a time-barred valid debt
• *A**MENDMENT of pleading to add a time-barred claim
• *S**OLDIER/SAILOR relief act
• *L**ENGTHEN (parties agree to LENGTHEN the timeframe)
• *O**BTAINING personal jurisdiction over an out-of- state defendant who would not consent to service of process
• *P**AYMENT (partial PAYMENT by defendant of a time-barred valid debt)
• *E**QUITABLE estoppel
• *D**ISABILITY/DEATH of plaintiff

Question 17

Reasons To Grant Motion to Dismiss - In SIDEBAR, Plaintiff Finally admitted the claim should be dismissed.

Answer 17

STATUE of Frauds

INFANCY/INCOMPETENCY

DISCHARGED (subject matter of claim DISCHARGED in bankruptcy proceeding)

ESTOPPEL (collateral estoppel or res judicata)

BARRED by statute of limitations

ARBITRATION and award

RELEASE from claim by plaintiff

PAYMENT by defendant

FAILURE to state a claim upon which relief can be granted

Question 18

Provisional Remedies - When a LIAR tells a LIE, the COP will FIND CJ because he’s a SLOB.

Answer 18

LIAR - the four provisional remedies

LIAR:
LIS pendens
preliminary INJUNCTION
order of ATTACHMENT
appointment of RECEIVER (harsh, requires bond)

LIE - reasons to grant preliminary injunction

• *LIE**:
• *L**IKELIHOOD of plaintiff’s success

IRREPARABLE injury ($ does not suffice)

EQUITABLE balance of hardships

COP - procedural requirements

• *COP**:
• *C**LEAR & CONVINCING evidence of extraordinary circumstances and that plaintiff will succeed

ORDER must be entered to be enforceable

POST-seizure hearing required immediately afterwards if order was entered ex-parte

FIND CJ - extraordinary circumstances needed to get order of attachment

_FIND CJ:
F_OREIGN corporation
INTENT to defraud creditors or frustrate enforcement of judgment
NON-DOMICILIARY defendant
DILIGENT efforts are not enough to serve domiciliary or resident
CRIME victims are entitled to order of attachment when suing felon (Son of Sam law)
cause of action is based upon default JUDGMENT from another jurisdiction that is entitled to full faith & credit

SLOB - lis pendens requirements

• *SLOB:**
• *S**HERIFF is not involved
• *L**IKELIHOOD of plaintiff’s success not considered by court
• *O**RDER by court not required
• *B**OND does not need to be posted

Question 19

Considerations of Court in Assigning Joint & Several Liability - The judge uses WHIP And ROD to assign joint & several liability.

Answer 19

WORKER’S compensation claims where employer is impleaded by defendant
HAZARDOUS substance released that results in harm to plaintiff
INTENTIONAL tortfeasors remain 100% liable PROPERTY damage
AUTOMOBILE (injuries caused by use, ownership or operation)
RECKLESS (grossly negligent) conduct causing injury
OVER 50% responsible for plaintiff’s injury DEATH (wrongful DEATH judgments involving economic injuries)

Question 20

Venue - Venue is chosen with TLC, but if WASP MEN are on your land, you have to file locally.

Answer 20

TLC - types of action that determine venue

TLC:
TRANSITORY action
LOCAL action
action to recover CHATTEL (replevin)

WASP MEN - claims involving property rights generally must be filed locally

WASP MEN:
action for tort of WASTE
ACTION involving leasehold
SPECIFIC performance sought in real estate contract
PARTITION of concurrent estates

• *M**ORTGAGE foreclosure
• *E**JECTMENT action
• *N**UISANCE action

Question 21

Discovery Devices - The MAID must get PAID to discover evidence

Answer 21

• *M**ENTAL exam
• *A**DMISSIONS (requests for)
• *I**NTERROGATORIES (in writing)
• *D**EPOSITIONS (aka “examination before trial”)
• *P**HYSICAL exam
• *A**DDRESSES
• *I**NSPECTION of evidence
• *D**ISCOVERY request for relevant evidence held by opposing party

Question 22

Objections To Method of Inquisition - Poorly phrased questions set off the BAC door ALARM.

Answer 22

BROAD (question too broad)

• *A**MBIGUOUS question
• *C**OMPOUND question

ARGUMENTATIVE badgering of witness

LEADING question on direct exam

• *A**SSUMING fact not in evidence as part of question REDUNDANT question requiring cumulative response
• *M**ISQUOTE prior statement by witness

Question 23

Sanctions During Discovery - This Judge DRIPS hot wax as a sanction for misbehavior

Answer 23

• *J**UDGMENT (order default JUDGMENT against defendant)
• *D**ISMISSAL of action in favor of defendant

RESOLUTION (force non-disclosing party to RESOLVE the issue causing non-disclosure)

• *I**MPOSITION of attorney fees, costs of suit and fines
• *P**RECLUSION of non-disclosing party from introducing related evidence
• *S**TRIKE non-disclosing party’s pleadings related to issues of non-discovery

Question 24

Reasons Why An Arbitration Award May Be Vacated - The arbitrator was BLAMED so his judgment was vacated.

Answer 24

• *B**IAS of arbitrator
• *L**ACKED rational basis
• *A**RTICLES of governing statute violated by procedure
• *M**ISCONDUCT (fraud or corruption)
• *E**XCEEDED scope of authority or issued opinion contrary to public policy
• *D**EMAND OF ARBITRATION was not properly served so losing party did not get to participate

Question 25

PERSONAL JURISDICTION: MINIMUM CONTACTS TEST (CONTACT)

Answer 25

Contact: There must be an appropriate tie between the defendant and the forum state:

1. Long-Arm Statute: Does the defendant come within terms of applicable state long-arm statute?
2. Purposeful Availment: Did the defendant voluntarily avail himself of the forum so that it is foreseeable that s/he could be hailed in court?
o Did D conduct purposeful business activities?
o Did D enter into a contract with a resident of the forum state?
o Did D place a product within the forum state’s stream of commerce?
o Did D cause harm within the forum state?

Question 26

PERSONAL JURISDICTION: MINIMUM CONTACTS TEST (FAIRNESS)

Answer 26

Fairness: Exercise of jurisdiction over the defendant must not offend “traditional notions of fair play and substantial justice.” Once you have established a relevant contact, now assess whether the exercise of jurisdiction would be fair or reasonable under the circumstances.

1. Relatedness: Does the plaintiff’s claim relate to the defendant’s contacts with the forum state?

o Specific Jurisdiction: Cause of action must arise from or relate to the defendant’s continuous and purposeful contacts with the forum state.
o General Jurisdiction: Defendant has continuous, systematic and substantial ties with the forum (must come close to physical presence in state).

2. P’s Convenience: Analyze the plaintiff’s interest in obtaining convenient and effective relief

3. D’s Convenience: Forum will be proper unless it puts the defendant at a severe disadvantage in the litigation.

4. Forum State’s Interest: The state has an interest in providing a forum for its citizens to resolve disputes.

Question 27

IN REM JURISDICTION

Answer 27

The jurisdictional basis is the property.
o The exercise of jurisdiction is valid if the property in question is in the state.
o A court has no in rem power over property outside the state or when property is brought into the state by fraud or force.

Question 28

QUASI IN REM JURISDICTION

Answer 28

• *Two types of quasi in rem jurisdiction:**
  1. Involves disputes between parties over their rights in property within the state; and
  2. Involves disputes unrelated to the property.

Question 29

DIVERSITY SMJ: COMPLETE DIVERSITY REQUIREMENT

Answer 29

Complete Diversity: The action must be between citizens of different states (includes DC and Puerto Rico).
o Complete diversity: No plaintiff may be a citizen of any state as any defendant at the time the action is filed.
o Citizen defined: State of domicile, determined by:
• Presence in the state (physical requirement); and
• Subjective intent to make it her permanent home (mental requirement).

Corporations’ citizenship (can have two):

o State where incorporated; AND
o The one state where the corporation has its principal place of business.
o If the facts do not tell you where the principal place of business is, look at where the corporate decisions are made (usually headquarters); and where the corporation conducts more administrative functions than anywhere else.

Unincorporated association: (Like partnership or LLC) Use the citizenship of all members (includes limited and general partners).

Decedents, minors and incompetents: Use their citizenship, not the citizenship of their representatives.

Question 30

DIVERSITY SMJ: AMOUNT IN CONTROVERSY REQUIREMENT

Answer 30

The amount in controversy must exceed $75,000: Has to be a good faith allegation that the claim exceeds this amount.

o P must prove with legal certainty that recovery can be more than this amount.
o The amount you plaintiff actually recovers is irrelevant. It just must be possible that plaintiff can recover more than the required amount. However, if plaintiff recovers less s/he may have to pay the defendant’s litigation costs.

o Aggregation: Adding two or more claims to meet the amount:

• Allowed if one plaintiff is suing one defendant, regardless of whether the claims are related or not.

Equitable relief: If Plaintiff sues Defendant for an injunction, look at:

o Plaintiff’s viewpoint: The decrease in value of the property has to be more than the amount in controversy.
o Defendant’s viewpoint: Would it cost the defendant more than AIC to comply with the injunction?
Exceptions to Diversity: federal courts will never hear divorce, alimony, child custody decree, or probate of an estate cases

Question 31

FEDERAL QUESTION SMJ

Answer 31

Complaint must show a right or interest founded substantially on federal law - “arise under federal law”:
o Citizenship of the parties will be irrelevant.
o Amount in controversy is irrelevant.
o Well-pleaded complaint: The claim has to arise under federal law, ignore any extra state claims the plaintiff may allege.

For every single claim, test whether it invokes diversity or federal question; if it does not, try supplemental jurisdiction.

Question 32

SUPPLEMENTAL JURISDICTION

Answer 32

Only works after a case is already in federal court, and there is an additional claim that does not meet federal question or diversity. Use this to add another claim.

Test: The claims must share a common nucleus of operative fact, and may be met by claims arising out of the same transaction or occurrence (T/O) as the underlying claim (that is added properly).

Limit: In a DIVERSITY case, the plaintiff cannot use supplemental jurisdiction to overcome a lack of diversity (but can use to overcome the amount-in-controversy).

o Even if the claim meets the amount and the test of transaction or occurrence, if one of the defendants is from a different state as the plaintiff and one is from the same state as the plaintiff, there is no way to hear the claim against the one who is from the same state because supplemental jurisdiction will not overcome a lack of diversity.
o Can overcome lack of diversity in a federal question case, because it only applies in a diversity case.

Discretionary factors: Court has the discretion not to hear a supplemental claim if:

_o The federal question is dismissed in an earlier proceeding; _
o The state law claim is complex; or
o The state law issue would predominate

Question 33

REMOVAL

Answer 33

Allows defendants ONLY to have the case filed in state court “removed” (i.e., transferred) to federal court, but defendant can only go from state to federal court, and if removal is improper, the federal court can remand at its discretion.

Rule: The defendant can remove if the case could have been heard in federal court originally (so if the claim invokes federal question or diversity jurisdiction).

Location: The case can only be removed to a federal district embracing the state court in which the case was originally filed.

Timing: Must remove no later than 30 days after service of the first removable document (usually service of process but sometimes it may be later— just the first document that made the case removable will toll the 30 days).

o All defendants must agree to the removal.
o Plaintiff can never remove.

Question 34

THE ERIE DOCTRINE

Answer 34

In Diversity: Federal court must apply state substantive law and federal procedural law.

Process:

o If there is a federal procedural law that directly conflicts with state substantive law, the federal law will usually trump (Supremacy Clause), but first, test the fairness of the application
o Identify the conflict, the issue to be resolved and determine whether the federal standard is sufficiently broad enough to control the resolution of that issue.

• *Can the statute/federal rule/case-law answer the question in the following categories?**
  1. Statute of limitations
  2. Conflict or choice of law rules
  3. Elements of claim or defense
  4. Rules for tolling statutes of limitations

o Next, make sure applying federal law is valid:

• Outcome determinative: Would applying or ignoring the state rule abridge/modify/enlarge any substantive right?
• Balance of interests: Does either system have a strong interest in applying that system’s rule?
• Avoid forum shopping

Question 35

DETERMINING VENUE

Answer 35

Venue determines which federal court to file in (which are divided into districts).

LOCAL ACTIONS: Directly affects real property: deals with ownership, possession, or injury including trespass to land and must be filed in the district in which the land lies.

TRANSITORY ACTIONS: Nature of underlying claim does not lock the controversy to any specific venue.

a. All defendants reside;
b. Substantial part of the claim arose; or
c. When all defendants reside in the state: Can lay venue in any of the districts.

DEFEDANTS’ RESIDENCY:

o People: For venue, residence = domicile, so usually it is the same place as citizenship.
o Corporations/business associations: Reside in all districts where they are subject to personal jurisdiction when the case is filed (different then citizenship which deals with subject matter jurisdiction, venue you can reside in every district in the U.S.).

Question 36

TRANSFERRING VENUE

Answer 36

Sending a case from one federal district court to another; can only send to one that it could have been brought in the first place (so you need proper personal jurisdiction in the new court as well).

o If venue in the original district is proper: You can transfer upon convenience. Court has the discretion.

• Public factors: What law applies, what community should be burdened with jury service

• Private factors: Convenience, where the witnesses and evidence are

o If venue in original district is NOT proper: Court may transfer in the interests of justice or dismiss.

FORUM NON-CONVENIENS: If there is a far more appropriate court elsewhere, court may dismiss (usually without prejudice) or stay to let the plaintiff sue the defendant there. It is dismissed if it is impossible to hear because it is in a different judicial system. It requires a very strong showing

Question 37

SERVICE OF PROCESS

Answer 37

The defendant must be served with process - a summons and copy of the complaint. This can be done by any non-party over 18 years old.

HOW IS PROCESS SERVED:

1. Personal service: Papers given to the defendant personally, anywhere in the forum state. (Same as CA).
2. Substituted service: Process is left with someone at the defendant’s house (as long as it is the defendant’s main house and service is on someone who lives there who is of suitable age and discretion).
3. Service on the defendant’s agent: Look at scope of agency.
4. State law: If in federal court, then the rules of the state in which the court sits or where service is given applies.
5. Waiver by mail: Mail is ok to the defendant, needs a copy of the complaint and two copies of the waiver form, with a prepaid means of returning the form.

o If D mails the waiver to P within 30 days, D waives formal service.
o Plaintiff then files the waiver with the court.
o If Defendant fails to return, the Plaintiff has Defendant served personally or by substituted service and there will be a penalty on Defendant unless he shows good cause (he will have to pay the costs of service)

Question 38

INJUNCTIONS

Answer 38

PRELIMINARY INJUNCTIONS: In both federal and California courts, a party may seek a preliminary injunction prior to trial to preserve the status quo. The adverse party must be given notice and an opportunity to be heard.

TEMPORARY RESTRAINING ORDERS (TRO): If irreparable injury will occur before the hearing on the preliminary injunction can be held, a party may seek a temporary restraining order to preserve the status quo until the hearing.

o The adverse party must be given notice of the hearing, but a TRO may be imposed without notice for a maximum 10-day period if three conditions are met:
• The moving party states specific facts in an affidavit or verified complaint of the irreparable injury she will suffer if the TRO is not granted;
• The moving party certifies in writing the efforts she made to notify the adverse party and the reasons why notice should not be required;
• The moving party provides security to pay for any damages incurred by the adverse party if the court later finds he was wrongfully restrained.

Question 39

PLEADINGS: THE COMPLAINT

Answer 39

• *Elements:**
  1. Statement of grounds for subject matter jurisdiction: show why it should be in federal court;
  2. Short and plain statement of the claim showing why you are entitled to relief; and
  3. Demand for relief sought.

“Notice pleading” in federal court, meaning only enough detail to put the other side on notice and include facts supporting a plausible claim.

Must be plead with more particularity:
o Fraud;
o Mistake; and
o Special damages.

Question 40

PLEADINGS: D’S RESPONSE (MOTION)

Answer 40

Rule 12 requires the defendant to respond in one of two ways: (No later than 21 days to avoid default).

Motion: Requests for a court order (which are either granted or denied):
o Motion for a more definite statement: Pleading is vague.
o Motion to strike: Aimed at immaterial things.

o Defenses:
• Not waivable:
o Lack of Subject matter jurisdiction (not waivable);
o Failure to state a claim (not waivable);
o Failure to join an indispensable party (not waivable)
• Waivable – must be put in the first Rule 12 response:
o Lack of personal jurisdiction
o Improper venue;
o Insufficiency of process;
o Insufficient service of process.

Question 41

PLEADINGS: D’S RESPONSE (ANSWER)

Answer 41

Answer (a pleading): Serve within 21 days after service of process; but if the defendant makes a Rule 12 motion and denied, he then has 14 days to after the court rules on the motion.

Requirements:
o Respond to allegations of complaint: Admit, deny, state that you lack sufficient information to admit or deny.
o Failure to deny can constitute an admission on any matter except damages.
o Raise affirmative defenses:
• Statute of limitations;
• Statute of frauds;
• Res judicata;
• Self-defense.

Question 42

PLEADINGS: COUNTER-CLAIM

Answer 42

A claim against an opposing party; has to be part of the defendant’s answer.

• Compulsory: Arises from the same transaction/occurrences (T/O).
o Must be filed in the pending case or else it is waived.
o The only kind in federal court.

• Permissive: Does not arise from the same T/O as plaintiff’s claim; you may file in an answer or a separate case.
• If a counterclaim is procedurally okay, then assess whether it invokes diversity or federal question; if so, it is allowed in federal court, if not try to use supplemental jurisdiction.

Question 43

PLEADINGS: CROSS-CLAIM

Answer 43

Claim against a co-party; it must arise from the same T/O as the underlying action
• However, if you have cross-claim it is not compulsory, so you do not have to file it in a pending case.
• Always talk about subject matter jurisdiction if they do not have it in a cross-claim or counterclaim try supplemental.

Question 44

PLEADINGS: AMENDMENT

Answer 44

Right to amend: Plaintiff has the right to amend once within 21 days after the defendant serves an answer or motion, whichever is earlier.

Defendant’s right to amend: Once within 21 days of serving his answer.

NO right to amend: Seek leave of court and it will be determined based on “whether justice so requires” factors:

o Delay;
o Prejudice; or
o Futility of the amendment.

Variance: If the evidence at trial does not match what is pleaded, you can amend to conform to the evidence because you want the pleadings to reflect what is being tried.

o NOTE: If the defendant objects, see if it is a variance and thus the evidence will be inadmissible.
Amendment after the statute of limitations has run:

o To join a new claim: Amended pleadings relate back if they concern the same conduct, transaction, or occurrence as the original pleading.

o Result: Treat the amended pleading as though it was filed when the original was filed so it avoids the statute of limitations problem

Question 45

DISCOVERY: DUTY TO DISCLOSE

Answer 45

This material must be produced even though no one asks for it.

o Initial disclosures: Must identify witnesses and give copies of documents.

o Experts: Must identify.

o Pretrial: Information about trial evidence.

TOOLS: May not be used until after a rule 26(f) conference. What can be used to get information from a non-party:

o Depositions: Questions can be oral or written.

o Interrogatories: Questions propounded in writing to another in writing to be answered in writing under oath, you can say you do not know, but only after reasonable investigation.

o Requests to product.

o Physical or mental exam (only through court order).

o Request for admission: Request by one party to another to admit the truth of any discoverable matter.

o Duty to supplement: If party learns that it is incomplete or incorrect you have to supplement

Question 46

DISCOVERY: SCOPE

Answer 46

Rule: Can discover anything relevant to acclaim or defense.

o Relevant: Means reasonably calculated to lead to the discovery of admissible evidence.

o Privileged: A matter not discoverable, you have to object with particularity if you want to protect some matter.

Work product: Trial preparation materials in anticipation of litigation.

o Discoverable if: There is a substantive need, and not otherwise available

o Always protected: Mental impressions, opinions, conclusions, legal theories.

o Does not have to be generated by a lawyer!

Experts: Parties are required to produce information about experts who may be used at trial without request from a party.

o Party may take a deposition of any expert whose opinion may be presented at trial.

o Consulting experts: No discovery necessary.

Question 47

DISCOVERY: RULE ENFORCEMENT

Answer 47

Protective order: Requests are over burdensome, or involve trade secrets, or not reasonably accessible.

Partial violation: Receiving party answers some and objects to other, and the objections are not upheld (minor sanctions).

Total violation: Receiving party completely fails to attend depositions, respond to interrogatories, or to respond for requests for production (heavy sanctions).

Sanctions: The party asking for sanctions must certify to the court that she tried in good faith to get the information without court involvement.

o Partial violation:
• Can get an order compelling the party to answer unanswered questions plus attorney costs for bringing the motion.

o Big sanctions:

• Dismiss plaintiff’s case;
• Strike pleadings of the disobedient party;
• Establishment order (establish facts to be true);
• Disallow evidence from the obedient party; or
• Enter a default judgment against the defendant.

Question 48

JOINDER OF PARTIES (TYPES)

Answer 48

Compulsory Joinder - A party should be joined if:
• Complete relief cannot be given to existing parties in her absence;
• Disposition in her absence may impair her ability to protect her interest in the controversy; or
• Her absence would expose existing parties to a substantial risk of double or inconsistent obligations.

Permissive Joinder- Parties may join as plaintiffs or be joined as defendants whenever:
• Some claim is made by each plaintiff and against each defendant relating to or arising out to the same series of occurrences or transactions; and
• There is a question of fact or law common to all the parties.

Question 49

JOINDER: NECESSARY & INDISPENSABLE PARTIES

Answer 49

Some absentees (non-parties) must be forced to join the case because they are necessary or “required”.

o If the absentee cannot be joined and the court dismisses the case because of it, the absentee is called “indispensable.”

o An Absentee who meets any of the following is necessary:
• Without him the court cannot accord complete relief among existing parties;
• His interest may be harmed if he is not joined; and
• He claims an interest which subjects usually the defendant, to multiple obligations.

Joinder is feasible if:

• There is personal jurisdiction over him;
• Joining him will not defeat diversity; and
• If he cannot be joined the court either dismisses the case or proceeds without him.

Factors the court considers to determine whether to proceed without the Absentee or not:

• Is there an alternative forum available?
• What is the actual likelihood of prejudice?
• Can the court shape the relief to avoid the prejudice

Question 50

JOINDER: IMPLEADER

Answer 50

Third party practice, where the defendant wants to bring in someone new because he owes him indemnity or contribution to the defending party on the underlying claim

o Need personal jurisdiction over this third party as well.
o After joined the plaintiff can bring their own action against them if the claim arises from the same T/O and vice versa.
o Then they all have to pass subject matter jurisdiction test – or try supplemental jurisdiction

Question 51

JOINDER: INTERVENTION

Answer 51

Occurs when an absentee wants to join a pending suit; s/he can come in as either a plaintiff or defendant, but the court may realign if they think s/he has come in on the wrong side.

Question 52

JOINDER: INTERPLEADER

Answer 52

Occurs when a party holding property forces all potential claims into a single lawsuit to avoid multiple litigation and inconsistency.

Citizenship: Those with the property must be diverse from any claimant (the parties that want the property).

Question 53

JOINDER OF CLAIMS

Answer 53

A plaintiff can join any number and type of claims against a defendant; when multiple plaintiff’s or multiple defendants are involved, it is essential only that at least one of the claims arise out of a transaction in which all were involved.

Question 54

JOINDER: CLASS ACTIONS

Answer 54

Requirements: When the question is one of common or general interest of many people, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.

o You must show an ascertainable class; and
o A well-defined community of interests. Whether:
• A common question predominates,
• The representative is adequate,
• Class will result in substantial benefit to parties and the court.

Types of Class Actions:

o **Prejudice**: Class treatment is necessary to avoid the harm either to class members or to party opposing class.
 o **Injunction or declaratory judgment**: Class was treated alike by the other party.
 o **Damages**: Common question predominates over individual questions and this would be the superior method of handling the dispute.

Question 55

VOLUNTARY DISMISSAL

Answer 55

Either by court order or filing a written notice of dismissal.
• “Without prejudice”: The plaintiff will be allowed to re-file the case.

• “With prejudice”: Claim cannot be reasserted.
• If the first case is filed in state, then voluntarily dismissed, and then brings in federal and dismisses, it cannot be brought again, if you voluntary dismiss twice you cannot bring it again no matter which court.

Question 56

DEFAULT/DEFAULT JUDGMENT

Answer 56

• A notation by the court clerk where the claimant shows that the defendant failed to respond within 21 days of service of process. Defendant can respond at any time before the default is entered.
• You need the judgment to enforce and recover money or other remedies (so just getting the default is not enough).
• Can never exceed what the claimant demanded.
• Defendant can set aside only with good cause and viable defenses.

• Judgment granted when:
o Defendant makes no response at all;
o The claim itself is for a sum certain in money;
o Claimant makes an affidavit (sworn statement) of the amount owed; or
o Defendant is not a minor or incompetent

Question 57

FAILURE TO STATE A CLAIM

Answer 57

Rule 12(b)(6)
o Tests the sufficiency of plaintiff’s allegations.
o Standard: Court assumes all allegations are true and asks “if P proves all she alleges would she win a judgment.”
o Test: See whether the facts alleged state a claim that the law would recognize - Look at the face of the complaint, not the evidence.

Question 58

SUMMARY JUDGMENT

Answer 58

Moving party must show there is no genuine dispute as to a material fact and that she is entitled to judgment as a matter of law.
• Viewed in the light most favorable to the nonmoving party.

• Affidavits: Sworn statements made under penalty of perjury so they can be treated as evidence (can look at those to determine whether there is a dispute of fact).
• Unverified pleadings are not evidence but may be looked at towards summary judgment.

Question 59

ALTERNATIVE DISPUTE RESOLUTION

Answer 59

A process by which a neutral person resolves a dispute or helps the parties to resolve their dispute.

• Contractual Arbitration: A written agreement to arbitrate a dispute is valid and enforceable unless a contractual ground for revocation exists (e.g. illegality).
• Judicial Arbitration: “Judicial arbitration” is a dispute-resolution process conducted by a neutral person under the auspices of the court in an attempt to resolve the action without trial.
• Mediation: Process by which a neutral person helps parties reach a mutually acceptable agreement. The mediator does not have decision-making power; his or her role is to facilitate the process by which the parties reach their own voluntary agreement

Question 60

JURY TRIAL

Answer 60

Right to a jury trial in federal court: 7th Amendment preserves the right to a jury trial in federal court (not state).

o Applies to civil cases at law but not at equity.
o If the claim involves both a claim for damages (legal relief) and a claim for equitable relief, party gets a jury trial for the legal relief but not the equity claim.
o Courts hear the jury issues first in federal court.
o Juries determine the facts, and the judge instructs them on the law.

Motion for judgment as a matter of law: Takes the case away from the jury.
o Brought after the other side has been heard at trial:
• Defendant: Can bring at the close of plaintiff’s evidence and the close of all the evidence.
• Plaintiff: Can only bring at the close of all evidence.
o Standard: Reasonable persons could not disagree on the result.
o Viewed in the light most favorable to the non-moving party.

Question 61

RENEWED MOTION FOR JUDGMENT AS A MATER OF LAW: JNOV

Answer 61

Jury returns a verdict and the court entered the judgment, losing party then makes a motion. If granted the judgment is taken away from the trial winner and entered for the loser.

o Standard: Same as a directed verdict “reasonable people could not have reached this decision”.
o Timing: Must file intent to move before the entry of judgment or 15 of mailing or service of notice, 180 days after entry of judgment.
o Party making the motion is required to make it at trial.
o NOTE: Party must have moved for a motion for judgment as a matter of law at the trial in order to bring this motion later.

Question 62

MOTION TO SET ASIDE JUDGMENT

Answer 62

Judgment is entered but errors during the trial require a new one.

Grounds:
o Prejudicial error makes judgment unfair;
o New evidence that could not have been obtained earlier with due diligence;
o Prejudicial misconduct of party, attorney, juror;
o Judgment is against the weight of the evidence; or
o Excessive or inadequate damages.

Question 63

APPELLATE REVIEW: FINAL JUDGMENT REVIEW

Answer 63

Party can only appeal a final judgment on the merits of the claim – the ultimate decision. Must be filed with the trial court within 30 days of entry of the final judgment.

o What is NOT a final judgment:
• Grant of a motion for a new trial; and
• Grant of a motion to remand state court.
What IS a final judgment:
• Denial of a motion for a new trial; and
• Grant or denial of reviewed motion for judgments as a matter of law

Question 64

CLAIM PRECLUSION

Answer 64

RES JUDICATA: A party can only sue a cause of action or claim once.
Requirements:
1. Identical Claims: There must have been prior litigation in which identical claims were raised (or could have been raised).
2. Identical Parties: The parties in the second litigation must be identical in some manner to the parties in the original litigation, or be in privity with the parties in the first action.
3. Final Judgment on the Merits: There must have been a final judgment on the merits in the original litigation.

Question 65

ISSUE PRECLUSION

Answer 65

Precludes re-litigation of a particular ISSUE litigated and determined before (because it was decided in Case Two).

• *Requirements:**
  1. Identical Issue: There must have been a prior litigation in which the identical issue was brought before the court.
  2. Actually Litigated: The issue must have been actually litigated in the first judicial proceeding, and the party against whom collateral estoppel is being asserted must have had a full and fair opportunity to litigate the issue in the first judicial proceeding.
  3. Issue Was Decided: The issue must necessarily have been decided and rendered as a necessary part of the court’s final judgment

Against whom can issue preclusion be asserted: Only against one who was a party in Case One (or who was a represented by a party). Required by due process.