Fed Civil Procedure

Question 1

Proper Court? –> Jurisdiction: PJ - Definition + 4 Traditional Basis of PJ

Answer 1

PJ = Power of ct over particular party.
—> PJ must be est’d separately for each D.

Traditional Basis:

(1) Personal Service
(2) Consent
(3) Property in State
(4) Residency (Domiciled)

Question 2

Proper Court? –> Jurisdiction: Traditional Basis for PJ - Residency (Domiciled)

Answer 2

If a party is a resident (domiciled) in the state where the suit was filed, PJ is constitutional.

• –> Human beings reside in the states where they live.
• –> A corporation is a resident of the state(s) where it is incorporated and where it has its principal place of business (= headquartered).
• –> Other entities are residents of the state where they maintain headquarters or their principal place of business.

Question 3

Proper Court? –> Jurisdiction: Traditional Basis for PJ - Consent (3 Ways)

Answer 3

A party can consent to PJ over it (3 ways):

(1) Contract: If the D signed a K with a choice-of-forum clause = consent.

(2) Appointment: Some states req businesses to appoint agents located in the state to receive process = consent.
- —> Cts are split on whether this is a suff basis for PJ.

(3) Rule 12 Motion: A party appears in ct w/o objecting to PJ (must object to PJ in initial filing).

Question 4

Proper Court? –> Jurisdiction: Traditional Basis for PJ - Personal Service

Answer 4

D is served with process while in the state where the suit was filed (tag).

• –> Not constitutional if the P coaxed the D into the state under false pretenses
• –> Not constitutional if the D was in the state to participate in a different legal proceeding.

Question 5

Proper Court? –> Jurisdiction: Traditional Basis for PJ - In Rem Jdx (Property in State)

Answer 5

D has property in the forum state and the lawsuit is about that property.

Question 6

Proper Court? –> Jurisdiction: Long-Arm PJ Analysis - Minimum Contacts Analysis (3 Part Test)

Answer 6

If not traditional basis…long arm PJ analysis.

Three-part test (need all 3):

(1) The D has est’d a minimum contact with the forum state;
- –> Est’d if the D purposefully avails himself of the laws of the forum state.

(2) Claim against the D arises from that contact; and
- –> D must have been able to reasonably anticipate litigation in the forum sate

(3) PJ won’t offend traditional notions of fair play + substantial justice.
- –> Fair Play factors:
- Burden on D
- Witness/evidence location
- Convenience
- Foreign state interest

Question 7

Proper Court? –> Jurisdiction: PJ - General Jurisdiction

Answer 7

At Home General Jdx

• —> Very high bar to clear (extremely rare)
• —> Parties are subject to “at home” general jurisdiction where contacts are so substantial that they are “essentially at home.”

Question 8

Proper Court? –> Jurisdiction: PJ - Long Arm Statutes (Specific Jurisdiction)

Answer 8

Cts will look at the relatedness between the claim and the contacts.
—> Must be suff’ly related for PJ).

Question 9

Proper Court? –> Jurisdiction: SMJ (def + 4 Types)

Answer 9

SMJ: Power of ct over a particular case.

• —–> Fed DCs have limited SMJ
• —–> Nothing to do w/ geographic location of lawsuit.

4 Main Types of SMJ:

(1) Fed Question
- —> Face of P’s complaint pleads a violation or question of fed law.

(2) Diversity
- —> Action involves parties who are citizens of diff states.
- —> Amount in controversy greater than 75k

(3) Supplemental
- —> Claim arises out of the same case/controversy as claim giving rise to original SMJ.

(4) Removal

Question 10

Proper Court? –> Jurisdiction: SMJ - Federal Question Jdx

Answer 10

Fed cts are empowered to hear claims presenting a question of fed law.
——> Fed law includes the USC, fed statutes and treaties, and fed CL.

Well-Pleaded Complaint Rule
——> A question of fed law must arise in the P’s affirmative claim, regardless of any defense the D might raise.

Federal Question Inside State Law Claims

• —-> A ct can assert jdx over a state law claim that raises a fed issue if the FQ is (main claim, main thing lawsuit is about):
  (1) Necessarily raised;
  (2) Actually disputed;
  (3) Substantial; and
  (4) Capable of resolution in fed ct w/o disrupting the fed-state balance approved by Congress.

Question 11

Proper Court? –> Jurisdiction: SMJ - Diversity Jdx

Answer 11

Fed cts have jdx over actions between citizens of diff states where the amount in controversy is greater than $75,000.

• —–> Diversity must be “complete” (no P and no D are citizens of the same state).
• —-> Key: where Ds and Ps are domiciled AT THE TIME OF FILING.

Exception
Class Actions where more than 100 persons and $5.
——> Diversity need only be minimal (a single P is diverse from a single D).

Question 12

Proper Court? –> Jurisdiction: SMJ - Supplemental Jdx (def + 3 steps)

Answer 12

SJ allows a claim falling outside Fed Ques or Diversity jdx to “piggyback” onto a claim that does fall w/in FQ or Diversity.

3 Steps

Step 1: Determine Relatedness
—> Does claim 2 (piggyback claim) arise from same transaction/occurrence as the one w/ FQ of Diversity (anchor claim)?

Step 2: Sneaky Ps Where Anchor Claim is Based on Diversity Jdx

• –> A sneaky P is trying to circumvent the limitations on diversity jdx.
• –> Is the anchor claim FQ? (If yes, step 3; If no, anchor claim is based on diversity)
• ———–> If the P did not do that (or if the D brought in the claims), advance to step 3.

Step 3: Consider State Prerogatives

• –> Steps 1 and 2 are satisfied, but is there a good reason for the court to decline to exercise jdx anyway? If yes, the ct may decline; possible reasons:
  (1) Involves novel or complex issue of state law;
  (2) Claim “substantially dominates” over FQ or diversity;
  (3) Anchor claim was dismissed; or
  (4) Other compelling reasons.

Question 13

Proper Court? –> Jurisdiction: SMJ - Diversity Jdx (Determining Domicile)

Answer 13

Determining Citizenship

(1) Humans
- —–> Only citizens of one place at a time: the state where they reside and intend to remain indefinitely.
- —–> Wanderer Rule: A human being’s citizenship does not change until the person plants roots in a new state by residing there and intending to remain indefinitely.
(2) Corporations
- —–> Could be citizens of two places (citizens where they are incorporated AND the state in which they maintain their PPoB - nerve center).
(3) Unincorporated Associations
- —–> Unions, LLCs, Partnerships
- —–> Citizens of the state where every member is a citizen (could be all 50 states)
(4) Representative of Incapacitated Party
- —–> Minor or deceased
- —–> Citizenship is that of the incapacitated party (not the representative)

Question 14

Proper Court? –> Jurisdiction: SMJ - Diversity Jdx (Amount in Controversy + Aggregation)

Answer 14

The amount in controversy must exceed $75,000.

• —-> A ct will defer to the P’s allegation of financial injury, unless it appears “to a legal certainty” that such allegations are incorrect.
• —-> The P does not have to actually recover over $75,000 in damages; they just need to plead an appropriate amount in good faith.

Aggregation of Claims
If a P brings multiple claims against a single D the court will aggregate claims to see if the amount in controversy is reached.
—–> Claims can be totally unrelated; there is no same transaction or occurrence requirement.
—–> Can’t aggregate a P’s multiple claims against multiple Ds.

Question 15

Proper Court? –> Jurisdiction: SMJ - Federal Question Jdx (Types of FQJ Cases)

Answer 15

Ordinary FQ Cases:
—–> Most FQ cases involve a violation of fed statute or USC provision; in these cases, the ct applies the text of the fed law and any authoritative precedent.

Embedded FQ Cases:
—–> In cases in which a state law claim depends on a question of fed law, the ct applies state law to the state law issues and fed law to the fed law issues.

Federal Common Law Cases:

• —-> Fed CL is a body of precedent repeatedly applied and molded by the cts.
• —-> This body of law is generally confined to the following fields of law:
  (1) Maritime law
  (2) Foreign relations
  (3) Commercial rights and liabilities of the fed govt
  (4) Property rights and liabilities of the fed govt
• —-> In these cases, fed cts will apply (and, if need be, create) fed CL and ignore any state law that might otherwise apply.

Question 16

Civ Pro Numbers Game

Answer 16

6 
-jurors 
10 
-depositions 
14x2 
-days to req jury trial; 
-TRO
20 
-to respond to complaint 
21x2 
-to amend 2 pleadings: complaint/answer; 
-safe harbor provisions (21 days to fix it) 
25 
-interrogatories 
28x2 
-can move for new trial; 
-renewing motion for J as matter of law 
30x2 
-to appeal; 
-to remove 
60 
-to respond if waive formal SoP 
90x3 
-to respond if waive formal SoP + foreign D; 
-disclose to other side re experts; 
-P serve D w/ complaint following lawsuit

Question 17

Proper Court? –> Venue

Answer 17

Venue = region (judicial district) w/in a particular state where suit can be brought

Venue is dictated by: residency of Ds, location of events giving rise to the suit, or if (and only if) venue is not proper under the first 2 locations, where at least 1 D is subject to PJ (“gap filler”).

Residency: If all Ds reside in the same state = district where any single D resides.

• ———-> Humans reside where they live.
• ———-> All other Ds (corps, partnerships, etc.) reside in every district in which they are subject to PJ for that suit.

Location of Events

• –> The P can also lay venue in the district where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated.
• –> If the Ds reside in multiple states, then proper venue will always be at the location of harm.
• –> NOTE: “Substantial events” giving rise to a lawsuit can happen in more than one judicial district.

Gap Filler
—> If there is no other district in which the action could be brought – then the district in which any D would be subject to PJ.

Question 18

Proper Court? –> Transfer Venue (3 reasons)

Answer 18

Can move a case between fed cts (can also dismiss case), but not state or foreign cts.

3 Reasons

(1) Convenience (commonly used)
- –> If the case could have been filed there in the first place and transfer is necessary for the convenience of the parties and/or witnesses.
(2) Agreement
- –> If all parties join the request to transfer, the ct does not need to consider PJ or venue (if they agree they are consenting).
(3) Interest of justice
- –> If the case was filed in an improper venue, the ct can dismiss the case or in the interest of justice, transfer it where it could have been filed originally.

Question 19

Proper Court? –> Forum Non Conveniens

Answer 19

If the most convenient forum is not in the US, the ct cannot transfer the case, but can dismiss it w/o prejudice so the P can refile in the proper country.

• -> This may not be in the US.
• -> The same factors are considered as in the transfer of venue.

Note that the ct, in dismissing a case under FNC, will often condition the dismissal on the D waiving any future challenges (should the case be re-filed in a different country) to the statute of limitations or other similar defenses.

Question 20

Proper Court? –> Notice and Service of Process: Commencement of an Action

Answer 20

A civil action in fed ct is commenced by filing the complaint w/ the ct.

• –> After complaint is filed, P presents a summons to the clerk for signature and seal.
• —> Service must occur w/in 90 days of filing of complaint.
• —> Anyone at least 18 years old and not a party can serve process.

If the P fails to serve the D w/in 90 days, the ct must dismiss the suit w/o prejudice.
—-> If the P can show good cause, the ct must provide the P additional time for service.

Question 21

Proper Court? –> Notice and Service of Process: Service of Process

Answer 21

General

• –> A summons must be served w/ a copy of the complaint.
• –> Service may be effected by any person who is at least 18 years of age and not a party to the suit.
• –> If P fails to effect service according to the rules, the case will be dismissed for insuff’y of service of process

Waiver

• –> A D may waive service of process upon request of the P.
• –> A waiver allows the P to save the cost of service.

Question 22

Proper Court? –> Notice and Service of Process: How Process is Served

Answer 22

Process can be served on D by following the manner prescribed by the state ct in the state where the fed suit has been filed or the state ct in the state where the D will be served.

D natural person, can also be served by:

(1) personally delivering the process to D himself, wherever that may be
(2) leaving process at D’s usual place of abode w/ a person of suitable age and discretion who resides there
(3) serving the D’s registered agent; or
(4) Mail w/ a letter req’ing the D waive in-person service
- —> If the D declines to waive, they become responsible for the cost of personal service.

D is corp, etc. process can also be served by delivering a copy of the summons and complaint to:

(1) an officer;
(2) a managing agent or general agent; or
(3) any other agent authorized by appointment/law to receive service of process

Question 23

Proper Court? –> Notice and Service of Process: Due Process and Notice

Answer 23

The D is entitled to notice of the claims against him and an opportunity to respond to those claims.

Notice through service: If served, basically have notice.
—-> The key is whether service is reasonably calculated to inform the D of the action against them.

Notice w/o Service: May be a constitutional issue.
—-> The key is whether the P took steps that were reasonably calculated to inform the D of the action against them.

Question 24

Proper Court –> Choice of Law (Law Applied): Federal Question Cases

Answer 24

Ordinary FQ Cases:

• —-> Most FQ cases involve a violation of fed statute or USC provision.
• —-> In these cases, the ct applies the text of the fed law and any authoritative precedent.

Embedded FQ Cases:
—–> In cases in which a state law claim depends on a question of fed law, the ct applies state law to the state law issues and fed law to the fed law issues.

Federal Common Law Cases:

• —-> Fed CL is a body of precedent repeatedly applied and molded by the cts.
• —-> This body of law is generally confined to the following fields of law:
  (1) Maritime law
  (2) Foreign relations
  (3) Commercial rights and liabilities of the fed govt
  (4) Property rights and liabilities of the fed govt
• —-> In these cases, fed cts will apply (and, if need be, create) fed CL and ignore any state law that might otherwise apply.

Question 25

Proper Court –> Choice of Law (Law Applied): State Law in Fed Ct: The Erie Doctrine

Answer 25

In diversity cases, fed cts will apply both state and fed law; the ct conducts an “Erie analysis” – 2 step process:

(1) Do what Congress or the Constitution says if it is valid and on point.
- —> If a valid fed statute or USC provision is on point, the fed ct must apply the relevant provision.
- —> It is irrelevant whether the provision is “substantive” or “procedural,” or whether it causes forum shopping, or otherwise seems unwise to apply.

Validity
The fed statute must be valid (USC is per se valid). If the statute is invalid, the ct ignores it and moves to Step 2.
—-> Congress says that a valid fed rule must “not abridge, enlarge, or modify any substantive right.”
—-> Importantly, this test is fairly easy to pass; no rule has ever been held to “abridge, enlarge or modify any substantive right.”

On Point
—-> Ultimately a question of interpretation

(2) If there is no fed statute or USC law on point, do what would avoid unfairness and forum shopping.

If there is no valid fed statute or USC law on point, the fed ct should follow its ordinary practices (whether rooted in case law, written policy, informal practice, or simply habit) UNLESS doing so would lead to:

• –> a preference for one ct system (state or fed) over another; or
• –> fundamental unfairness.

Unfairness or Forum Shopping:
—> A finding of forum shopping will necessarily carry with it a finding of unfairness.

Two rules of thumb:

(1) Statutes of limitation are substantive.
- –> When P sues D in a federal diversity action, P’s compliance with the statute of limitations will normally be controlled by state law.
- –> That is, there is normally no federal law on point, and the application of state law is necessary to prevent forum shopping/unfairness.
- –> Thus, state statute of limitations law is applied (and labeled “substantive”).
(2) Choice of law rules are substantive.
- –> In a federal diversity suit, Erie requires that federal courts apply the choice of law rules of the state in which it is sitting.
- –> That is, there is no federal law on point and conjuring up distinctly federal choice of law rules would only encourage forum shopping.
- –> Thus, such rules are properly applied in diversity cases and labeled “substantive.”

Question 26

Pre-Trial Issues –> Pleadings: Rules of Pleadings (3 reqs)

Answer 26

Complaint must contain 3 items:

(1) Grounds for SMJ
(2) Statement of facts that are suff to show that P is entitled to relief; and
- —> SCOTUS: complaints must state facts that make the wrongdoing appear plausible, not just hypothetically possible.
- —> In cases alleging fraud or mistake, the P must describe the alleged fraud or mistake with particularity (general allegations will not suffice) (+ denial condition precedent occurrence + special damages)
- —> Each claim must be supported by suff law and facts
(3) Demand for judgment and the relief sought
- –> SP? Money?

Question 27

Pre-Trial Issues –> Pleadings: Responsive Pleadings

Answer 27

A responding party must admit (true) allegations or deny (false) allegations made against it by an opposing party.

• –> An answer must be filed w/in 21 days of service of the complaint.
• –> The 21 day period does not include the date of service, but does include weekends and holidays; if the 21st day is on a weekend/holiday, answer must be filed on the next business day.
• –> If there is a failure to deny any specific allegation, it is deemed admitted

Waiver

• –> A party must plead certain affirmative defenses in its answer or reply to a counterclaim
• –> If it is not included in the answer, it is forfeited
• –> Exceptions: failure to state a claim upon which relief should be granted; failure to join a necessary party; and lack of SMJ

Question 28

Pre-Trial Issues –> Pleadings: Amendment and Supplemental Pleading

Answer 28

A party can amend a pleading once as a matter of right.

• –> The complaint can be amended w/in 21 days of serving the original complaint, or, if an answer or motion to dismiss has already been filed, w/in 21 days of that service.
• –> A party can amend an answer w/in 21 days of serving the original answer.

A party can amend w/ permission:

• –> of opposing parties - then can amend.
• –> of court - will consider reason for delay and prejudice (usually granted).

Amendments and SoLs (Relation Back Doctrine)
Whether an amendment has been filed w/in the SoL depends on whether the amendment seeks to add a new claim or a new party:
(1) Adding new claims:
—> The amendment is considered filed on the date that the original complaint was filed IF the new claim arises from the same transaction or occurrence as the existing claim (relation back rule).
(2) Adding new parties:
—> Will relate back to the original filing date:
1. If the new claim arises from the same transaction and occurrence as the existing claim;
2. If the new party knew of the suit soon enough to not be prejudiced (generally during the time permitted for service of the original complaint); and
3. If the new party should have expected to be named, but-for a mistake in identity.

Question 29

Pre-Trial Issues –> Pleadings: Motions RE Pleadings (2 types)

Answer 29

Motion for Judgment on the Pleadings
—> After the pleadings are closed (but early enough not to delay the trial) a party may move for judgment on the pleadings.

Motion for a More Definite Statement
—> The ct can (on its own or on motion) order material stricken if the complaint/answer contains redundant, immaterial, or scandalous stuff.

Question 30

Pre-Trial Issues –> Pleadings: Rule 12 Motions (Dismissal)

Answer 30

Motion to Dismiss = Motion filed by the defending party seeking dismissal of a claim against them.
—-> Must be filed before an answer is filed w/in 21 days (where process was served) or 60 days (where service of process was waived).

Grounds (6):

(1) Lack of SMJ;
(2) Lack of PJ
(3) Improper venue
(4) Insuff process
(5) Failure to state a claim upon which relief can be granted
- The ct assumes the facts are 100% true, must be plausible, not probable (needs some facts)
(6) Failure to join an indispensable party

Waiver:
The fed rules req certain defenses be raised at certain times (use them or lose them).
—> The D must include the following defenses in their first response (either motion to dismiss or answer) or they are forfeited:
(1) Lack of PJ;
(2) Improper venue;
(3) Insufficient process;
(4) Insufficient service of process.
—> The D must raise the following defenses any time before trial ends, or they are forfeited:
(1) Failure to state a claim upon which relief can be granted;
(2) Failure to join a necessary party.
—> The defense of lack of SMJ is never forfeited; it may be raised anytime, even on appeal.

Question 31

Pre-Trial Issues –> Pleadings: Rule 12 Motions (Generally)

Answer 31

When? Pre-Answer or Waived

• —> PJ
• —> Venue
• —> Notice/Service

When? Pre-Trial

• —> Failure to state claim upon which relief can be granted
• —>Failure to join party

Anytime
—-> SMJ

Question 32

Pre-Trial Issues –> Removal: Removal from State Ct to Fed Ct (When + Exception + Timing)

Answer 32

A D can remove a case from state to fed ct if the case could have originally been filed in fed ct.

• -> Note: counterclaims, cross-claims, and impleader claims are not suff (on their own) to permit removal.
• –> If there are multiple Ds, removal allowed only if ALL Ds agree to remove.

Exception: Home-State D Rule

• –> D can’t remove if:
  (1) Fed jdx would be grounded only in diversity jdx; and
  (2) The D is a citizen of the state where the P filed suit.

Timing

• –> D must remove w/in 30 days of when grounds become apparent.
• –> Normally when the D is served w/ complaint (but can be later); if P amends complaint, then D has 30 days from that point.
• –> If P sues MULT Ds and serves them w/ process at different times, 30 day window for removal runs from moment final D served
• ———-> later service on other Ds does NOT (however) empower the first-served D to remove of its own accord; the first D may only join in a removal initiated by a later-served D.
• –> If removal based on DIVERSITY, D must remove w/in one year of filing unless the P attempted to thwart removal.

Remand is necessary if a case is removed improvidently and without jurisdiction.

Question 33

Pre-Trial Issues –> Joinder: Joinder of Parties

Answer 33

Permissive Joinder
Mult Ps can join one suit or mult Ds can be sued in one suit, as long as:
(1) Joined parties claim relief (if Ps) or face liability (if Ds) that arises out of the same transaction or occurrence; and
(2) There will arise in the action questions of law/fact common to joined parties.

Mandatory Joinder
Step 1:
Is the absent party necessary?
—> Necessary party = Has an interest that might be impaired if left out (suing for painting back, need the guy w/ the painting); complete relief cannot be issued in the party’s absence; or if current parties would be subject to inconsistent / duplicative liability.
—> If a party is not necessary, there is no mandatory joinder.

Step 2:
If a missing party is necessary, can the party be joined?
—> If Yes - Ct should just join them, adjudicate case, skip Step 3.
—> If No - Proceed to Step 3.
—————–> A missing party can’t be joined in fed ct if the court lacks PJ over the missing party, or adding the party would destroy SMJ by destroying diversity.

Step 3:
If a party cannot be joined, are they indispensable?
—> The ct will consider: The extent of prejudice to the missing party; whether the prejudice can be lessened by shaping the relief in a certain way; and if the case is dismissed, whether the P can find relief in another forum.
————> If Yes – must dismiss the suit.
————> If No – ct can adjudicate the case in the party’s absence.

Question 34

Pre-Trial Issues –> Joinder: Joinder of Claims

Answer 34

Multiple Claims brought by one P and one D:

• –> The P can bring all claims in one lawsuit, regardless of relatedness of claims.
• –> Not req’d to bring every claim but permitted to.
• –> If a claim is related to a claim in the suit, the P must bring the claim, or it is likely precluded.

Question 35

Pre-Trial Issues –> Joinder: Class Actions (Generally)

Answer 35

One person (the representative) can litigate on behalf of a group (class) if:

(1) A class can be formed, and
(2) The action brought is proper for resolution via class action.

To form a class, 4 reqs must be met:

(1) Numerosity: So many claimants that joinder is impractical;
(2) Commonality: Questions of law or fact common to the class;
(3) Typicality: Claims are typical of class members, ensuring the representative will have an incentive to litigate in ways to protect the class; and
(4) Representativeness: Representative parties will fairly and adequately protect the interests of the class.

Proper for resolution via class action if:

• —> Separate actions would create a risk of inconsistent judgments or judgments would impair nonparties from protecting their interests.
• —> The opposing party has acted in ways generally applicable to the class (not likely to work if seeking $$).
• —> The ct finds that common questions of law or fact predominate over individualized questions, and a class action is superior to other methods for a fair/efficient result.

Additional Considerations

(1) Ct must have PJ over every D but only over the named P.
(2) Judgment binds all class members unless they opt out.
(3) Notice: In common-question class actions, class members must be given notice of the pendency of the suit, usually through mail or publication.
(4) SMJ: When alleging a state law violation, the class can appear in fed ct only if the Ds and representative Ps (not all members) are completely diverse.
- —> If the class has 100 members and seeks damages over $5M, diversity is satisfied if any single member is diverse from any defendant (Class Action Fairness Act – CAFA).
- —> Jdx can be est’d through an initial filing in fed ct or through removal.
- —> Moreover, unlike ordinary removal rules, if the class has 100 members and seeks damages over $5M, removal can be made by a home state D and can be made w/o the agreement of all other Ds (CAFA).

Question 36

Pre-Trial Issues –> Discovery: Standard

Answer 36

A party is entitled to demand the discovery of any matter that is:

(1) Relevant to the claim or defense of any party;
(2) Not unreasonably cumulative or burdensome; and
(3) Not privileged

There are mandatory disclosure obligations as well as specific discovery devices that are designed to elicit info w/in the permissible scope of discovery.

Question 37

Pre-Trial Issues –> Discovery: Mandatory Disclosures

Answer 37

Initial Disclosures:
W/in 14 days after a Rule 26 conference, must provide to all other parties:
(1) Witnesses:
—> The name/contact info of any witness that a party may use to support a claim or defense;
(2) Documents:
—> Copies (or descriptions) of docs, electronically stored information (ESI), and tangible objects that a party may use to support its claim or defense;
(3) Damages:
—> Computation of damages sought and supporting docs; and
(4) Insurance Agreements:
—> Copies of any insurance agreement that may require the insurer to pay.

Expert Disclosure:
At least 90 days before trial, if a party is planning to rely on expert testimony, they must disclose the name/contact info of the expert and their final report, which must include the qualifications, opinion, and info relied on by the expert.

Pretrial Disclosures:
At least 30 days before trial, a party must provide to all other parties:
(1) List of witnesses expected to call at trial;
(2) Witnesses that may be called if the need arises;
(3) List of witnesses whose testimony will be given through deposition or transcript; and
(4) List of docs or physical evidence they expect to present.

Privileged matter is not discoverable.
—-> Attorney/client – Covers confidential communications between an attny and client for the purpose of obtaining or rendering legal advice.

Question 38

Pre-Trial Issues –> Discovery: Interrogatories (+ Depositions)

Answer 38

Interrogatories = Questions submitted in writing to the other party.

• —> Up to 25 questions
• —> Can seek facts or contentions
• —> 30 days to respond, must be in writing and objections stated w/ specificity

Depositions: Used to ask questions of witnesses.

• —> May depose up to 10 witnesses, but can get a court order for more.
• —> Most depositions occur during the pendency of the lawsuit. Like other forms of discovery, these depositions cannot be conducted until after the 26(f) conference.
• —> May use at a hearing or trial as long as the opposing party had a reasonable opportunity to be present and these rules are followed:
• —> The deposition of a party/party’s designee can be used for any purpose.
• —> The deposition of a non-party can be used:
  (1) to impeach the deponent, or
  (2) if the deponent is unavailable, (dead, infirmity, or disappearance) the deposition can be used for any purpose.

Question 39

Pre-Trial Issues –> Discovery: Requests for Production of Documents

Answer 39

Requests for production of documents, tangible items, or access to evidence.

• —> 30 days to respond, may object as outside the scope of discovery.
• —> If documents, the responding party must provide them as they are maintained in the usual course of business and label them.
• —> If electronically stored information (ESI), can provide in the form it is normally maintained or in a reasonably usable form.

Question 40

Pre-Trial Issues –> Discovery: Requests for Admission

Answer 40

Requests for Admission = Request to admit truth or fact.

• —> If admitted, it’s in there for the trial.
• —> 30 days to respond, may admit, deny, or state they have made a reasonable attempt to ascertain the truth but lack info to admit/deny.
• —> The responding party can object to questions as outside the scope of discovery, but cannot simply claim that the matter is properly resolved by a jury.

Question 41

Pre-Trial Issues –> Discovery: Requests for Independent Medical Examination

Answer 41

Requests for Mental or Physical Examination:

• –> Used when a party’s mental or physical state is at issue.
• –> Available only upon ct order after showing of good cause
• –> When ordered, the party must submit to an examination.
• ->The examiner must prepare a report detailing the exam and it is available to any requesting party.

Question 42

Pre-Trial Issues –> Discovery: Depositions

Answer 42

Depositions: Used to ask questions of witnesses.

• —> May depose up to 10 witnesses, but can get a ct order for more.
• —> Most depositions occur during the pendency of the lawsuit.
• —> In rare cases, a party may wish to depose a witness before a lawsuit is even filed. These are known as “depositions to perpetuate testimony” and are available only if all expected opposing parties are provided an opportunity to be present at the deposition and ask questions.
• —> May use at a hearing or trial as long as the opposing party had a reasonable opportunity to be present and these rules are followed:
  (1) The deposition of a party/party’s designee can be used for any purpose.
  (2) The deposition of a non-party can be used:
  1. to impeach the deponent, or
  2. if the deponent is unavailable, (dead, infirmity, or disappearance) the deposition can be used for any purpose.

Question 43

Pre-Trial Issues –> Discovery: Work Product Doctrine

Answer 43

Work Product (WP): 
Even if relevant, info may be protected work product.
----> WP = Doc or tangible object created by a party or their attny in anticipation of litigation (post-incident description of events or records of communications with witnesses).

Exceptions- WP discoverable in 2 situations:

(1) Party can always obtain a statement it has made.
(2) Can get WP if the party has a substantial need and can’t get it without undue hardship.
- If the ct orders disclosure for this reason, it must make every effort to keep secret the author’s litigation strategy or mental process.

Related: Privilege
Privileged matter is not discoverable.
—-> Attorney/client – Covers confidential communications between an attny and client for the purpose of obtaining or rendering legal advice.

Question 44

Pre-Trial Issues –> Motions for Summary Judgment

Answer 44

No genuine dispute of material fact, and movant is entitled to judgment as a matter of law.
—-> Either the P or the D can move for SJ.

Materials used:
The rule allows the parties to present, and the ct to refer to on its own, the pleadings, discovery docs, materials produced in mandatory disclosure, and affidavits.
—-> Info offered to the ct needs to be admissible at trial, even if it is not presently in a form that would be admissible.

Timing:
A motion for SJ may be made any time before 30 days after the close of discovery.

Analysis:

Step 1 – Assess only the arguments advanced by the movant. Have they shown that the non-movant lacks suff facts and/or law to prevail on the claim/defense in question?

• —> Two ways:
  (1) Pointing out (w/ citations to the record) holes in the opposing party’s claims or defenses; or
  (2) Adducing new evidence to demonstrate that the claim or defense cannot be proven.

Step 2 – Examine the non-movant’s response – they must bring evidence suff for a reasonable jury to find in their favor on a claim or defense.

• —> The ct will look only at the non-movant’s evidence (won’t weight it against the moving party’s) and assume the witnesses are truth tellers – no credibility issues.
• —> If the non-movant does not produce evidence, but just talks pleadings, they’ll lose, but if the pleadings are under oath, they will count as being evidentiary.

Question 45

Trial Issues –> Right to a Jury Trial

Answer 45

7A guarantees right to a trial by jury in suits at CL, where the value in controversy exceeds $20; Suits at common law, consider both:

(1) Nature of the remedy:
The 7A guarantees a right to a jury where monetary relief, rather than injunctive relief, is sought.
—> If both forms of relief are sought, the right to a jury exists for any issue of fact underlying a damages claim – even if the resolution of that issue may also support injunctive relief.

(2) Nature of the claim:
Cts will also assess whether a claim can be fairly analogized to a 1791 CL claim.
—-> However, the nature of the remedy tends to be the primary inquiry.

Demand for Trial by Jury

• –> Any party can exercise the right (if there are ten parties, just one has to want it).
• –> The demand must be filed no later than 14 days after the last pleading directed to the jury-eligible issue is filed.
• –> The party exercising the right must file and serve on other parties a written demand for a jury trial.
• –> If the demand is not timely filed and served, the right to a trial by jury is forfeited.

Question 46

Trial Issues –> Right to a Jury Trial - Jury Selection

Answer 46

Size: 6-12 members

Selection (voir dire)

• —> Challenge for Cause: Parties have an unlimited number of challenges for cause, but must articulate the nature of the juror’s unfitness
• —> Peremptory Challenge: Parties have 3, juror is automatically dismissed, no justification needed unless the strikes give rise to gender/race discrimination. If a strike gives rise to gender/race discrimination, the striking party must provide a nondiscriminatory explanation for the strike or else rescind its strike.

Question 47

Trial Issues –> Right to a Jury Trial - Jury Instructions

Answer 47

Before deliberating, the judge instructs the jury on the law applicable to the claims alleged.

Any party may:

• —> Propose particular instructions no later than the close of all evidence.
• —> Object to any instruction. This must be done before the jury begins deliberations.
• —> NOTE: If the parties are informed of what the instructions will be before they are read to the jury, objections must be made before closing arguments.

Question 48

Trial Issues –> Judgment as a Matter of Law (JML)

Answer 48

During a jury trial only, the ct may enter (on its own or upon motion), JML if:

(1) The party against whom judgment is entered has been fully heard on the issue, and
(2) The party lacks suff evidence to prevail on an issue necessary to a claim/defense.
- —–> Same as SJ standard – the ct assumes the non-movant’s witnesses are all truth tellers and does not weigh the evidence.

Question 49

Trial Issues –> Renewed Judgment as a Matter of Law (RJML)

Answer 49

Post-trial motion.

If a party filed a losing JML during trial, and then loses at trial, they can try again.

The motion must be filed within 28 days of entry of judgment (or discharge of the jury if the motion addresses a jury issue not decided by the verdict).

In ruling on this renewed motion for JML, the court may:

(1) Allow the verdict to stand;
(2) Enter the opposite verdict; or
(3) Order a new trial (even if a motion for a new trial was not made).

Question 50

Trial Issues –> Motion for a New Trial

Answer 50

Must file within 28 days of entry of judgment.

Grounds:

(1) Against the great weight of the evidence
- –> The ct can take into account the comparative volume and credibility of the evidence.
(2) Excessive damages
- –> The jury returns a verdict that is “grossly excessive” or “shocks the conscience.”
- –> The ct can also just choose an approp amount and let the P choose between accepting that amount and doing a new trial.
(3) Procedural error or misconduct
- –> only if:
(1) Error or misconduct likely affected the result of trial, and
(2) The party objected to the error when it had the opportunity to do so.

Examples of errors/misconduct:
—> Wrongful exclusion of evidence, incorrect jury instructions, communication between witnesses, ex parte communication with the judge, and juror misconduct.

(4) Newly discovered evidence
- –> If a party discovers evidence after the verdict that could not, w/ reasonable diligence, have been found before the verdict, a new trial is warranted as long as the evidence is not solely for the purpose of impeachment and would likely change the result.

Question 51

Post-Trial Issues –> Appeal: Interlocutory Review

Answer 51

W/ limited exceptions, interlocutory orders (orders either asserting provisional relief or made upon motion or application during trial, but which are not final adjudications on the merits) may not be reviewed before final judgment.

Appellate review is authorized for an interlocutory order rendered by a TJ that (exceptions to final order doctrine):

(1) conclusively determines the disputed question
(2) resolves an important issue completely separate from the merits of the action; and
(3) is effectively unreviewable on appeal from a final judgment

Congress has given the fed cts SMJ over appeals from an interlocutory order of the trial ct that grants, denies, continues, modifies, or dissolves an injunction. (exception to final order doctrine)
—-> Interlocutory orders for injunctive relief are not appealable if a similar suit is pending in state ct.

Question 52

Post-Trial Issues –> Appeal: Final Judgment Rule

Answer 52

Congress has given to the fed cts SMJ over appeals from all final decisions of the fed district TCs.

• —> The basic principle in the fed system is that only final judgments may be taken to the appellate cts.
• —> A final judgment is generally defined as one that disposes of all issues as to all of the parties.

Question 53

Post-Trial Issues –> Using Judgments: Claim Preclusion

Answer 53

Doctrine of claim preclusion prevents relitigation of a claim or all claims:

(1) between the same parties and those in privity w/ them
(2) arising out of the same transaction or occurrence; and
(3) that were determined on the merits by a ct w/ proper SMJ and PJ

Claim preclusion operates as an affirmative defense that is waived if not properly asserted.
—–> It can also be asserted as a basis for SJ

Question 54

Post-Trial Issues –> Using Judgments: Issue Preclusion

Answer 54

Prevents relitigation of issues that were fully & fairly litigated and were necessarily decided in a proceeding that reached a final judgment on the merits.
—> A party will be estopped from litigating an issue under collateral estoppel if it is shown:
(1) that the issue was previously litigated,
(2) the litigation resulted in a final judgment on the merits,
and
(3) the current claim involves at least one party to the first suit.

Issue preclusion may be used offensively by one who was not a party to the first action against one who was a party in the earlier suit.

Question 55

Discovery - Subpoena

Answer 55

Documents and property may be requested from non-parties by subpoena.
—> The subpoena must list third party rights and where and when records should be produced.