Fed J.

Question 1

SUBJECT MATTER JURISDICTION:

Original Subject Matter Jurisdiction of Federal Courts:

Federal Question Jurisdiction [28 U.S.C. § 1331]:

Answer 1

D.C. shall have O.J. over all C.A.U. C.L.T. of U.S

• Well‐Pleaded Complaint: Federal law must be raised by the plaintiff’s complaint, not a mere defense.
• Fed’l law created private right of action OR fed’l issue in state law created CoA
• Anticipating defense is in fed’l law insufficient, must be well pleaded complaint

Question 2

SUBJECT MATTER JURISDICTION:

Original Subject Matter Jurisdiction of Federal Courts:

Diversity Jurisdiction [28 U.S.C. § 1332]

Answer 2

D.C. has O.J. over all civil actions, when:

1. A.I.C. exceeds $75K excluding I&C, &
   
   • a single π may aggregate claim amts; multiple πs may not
   • Good faith allegation
   • Exceptions: Probate and domestic relations actions cannot be brought in federal court under diversity jurisdiction.
2. Complete diversity of citizenship among parties [π(s) different than ∆(s)]
   
   • Diversity must exist at time of filing

Question 3

SUBJECT MATTER JURISDICTION:

Original Subject Matter Jurisdiction of Federal Courts:

Diversity Jurisdiction [28 U.S.C. § 1332]:

Citizenship

Answer 3

Diversity must exist at time of filing

• Individual: domicile [not residence] – where you intend to stay INDEFINITELY [time of filing]
• U.S. citizen domiciled in another country: has no citizenship [Destroys Citizen]
• Partnership (unincorporated entity): citizenship of each member
• Corp: (1) state of incorporation & (2) P.P.B. [“nerve center”►headquarters] (When dealing with a corporation, be sure to consider every state where the corporation has citizenship.)
• Alien: permanent resident alien citizen of state of domicile; all other aliens [tourists or illegal aliens] home country is state of domicile
• Insurer/Legal Representative[not party]: State of insured/decedent/infant/incompetent
• Foreign countries on both sides: require U.S. citizens for each, but FC[π] can sue U.S. citizen
• Class actions: Citizenship of the named counts; Class members not named may join w/o regard to citizenship.

Question 4

SUBJECT MATTER JURISDICTION:

Original Subject Matter Jurisdiction of Federal Courts:

Objection to SMJ

Answer 4

Lack of SMJ can be raised by any party at anytime, including by the plaintiff or for the first time on appeal

Question 5

SUBJECT MATTER JURISDICTION:

Original Subject Matter Jurisdiction of Federal Courts:

Objection to SMJ

Question 6

SUBJECT MATTER JURISDICTION:

Original Subject Matter Jurisdiction of Federal Courts:

Minimal diversity

Answer 6

Exists when any one plaintiff is diverse from any one defendant

exception to complete diversity requirement

• Minimal diversity is permitted in the following circumstances: federal interpleader act, class actions worth more than $5 million and interstate mass torts (e.g., airline crash).

Question 7

SUBJECT MATTER JURISDICTION:

Original Subject Matter Jurisdiction of Federal Courts:

Devices to Create or Destroy Diversity

Answer 7

• Actions that create or defeat diversity are permitted, so long as they are not done solely for that purpose ‐ must be genuine.
• Moving ‐ permitted so long as the person is really changing their domicile, not just a sham to affect diversity.
• Assignment of a claim ‐ permitted so long as the assignment is real and not collusive.
  
  • Partial assignment of a claim for debt collection ‐ does NOT affect citizenship if the assignor retains an interest in the claim.
    
    • Assignor’s citizenship will count for purposes of diversity.

Question 8

SUBJECT MATTER JURISDICTION:

Original Subject Matter Jurisdiction of Federal Courts:

Aggregation:

Pl. vs. Def.?

Pl. vs. Defs.?

Multiple Pls.?

Answer 8

Adding up smaller claims to exceed $75,000

• One plaintiff vs. one defendant: Pl. can aggregate all his claims against the defendant to meet the AIC requirement.
• One plaintiff vs. multiple defendants: Pl. generally cannot add up all his claims; claim against EACH Def must meet AIC requirement.
• Multiple plaintiffs:
  
  • General rule ‐ Each plaintiff must meet the AIC requirement.
  • Supplemental jurisdiction:
    
    • When one plaintiff has a claim exceeding $75,000, the claims of the other plaintiffs can be heard regardless of the amount if all of the claims: (1) arise out of the same transaction or occurrence and (2) complete diversity is maintained.
    • When one plaintiff has a claim against one defendant exceeding $75,000, the plaintiff can join claims against other defendants regardless of amount if the claims against all the defendants: (1) arise out of the same transaction or occurrence and (2) complete diversity is maintained.

Question 9

SUBJECT MATTER JURISDICTION:

Original Subject Matter Jurisdiction of Federal Courts:

Counterclaims:

Does a counterclaim in a diversity action have to meet the jurisdictional minimum of $75,000+?

Answer 9

• Counterclaim is compulsory–one that arises out of the same transaction or occurrence as the main claim: No
• Counterclaim is permissive–one that does NOT arise out of the same transaction or occurrence: Yes; can only be heard if it independently satisfies diversity jurisdiction

Tip: Most frequently asked question regarding procedure on the bar exam.

Question 10

SUBJECT MATTER JURISDICTION: SUPPLEMENTAL AND REMOVAL JURISDICTION:

Supplemental Subject Matter Jurisdiction

Answer 10

• Any civil action D.C. has O.J., it has S.J. over all other claims so related to C.O.A. w/in O.J. they form part of same “case or controversy”; claims share “CNOF”
• Supp. J. on C.o.A. based solely on section 1332 (diversity): not over claims by π against persons made parties under Rule 14, 19, 20, or 24 when exercising supp. J. over claim would destroy diversity under 1332
  
  • Supplemental jurisdiction does not extend to:
    
    • Claims by pls against impleaded 3rd party defs under Rule 14
    • Claims by plaintiffs against additional defendants joined as necessary parties under Rules 19 and 20
    • Claims by intervenors under Rule 24
    • Claims by plaintiffs joined involuntarily under Rule 19

Question 11

SUBJECT MATTER JURISDICTION: SUPPLEMENTAL AND REMOVAL JURISDICTION:

Supplemental Subject Matter Jurisdiction:

D.C. may decline S.J. over claims if:

Answer 11

1. raises NOVEL OR COMPLEX issue of State law,
2. State law SUBST’LY PREDOMINATES over claim(s) D.C. has O.J.,
3. D.C. DISMISSED ALL claims that had O.J., or
4. OTHER COMPELLING reasons for declining jurisdiction.

Question 12

SUBJECT MATTER JURISDICTION: SUPPLEMENTAL AND REMOVAL JURISDICTION:

Supplemental Subject Matter Jurisdiction:

Tolling:

Answer 12

• Tolled[suspended] when claim pending &
• for 30 days after dismissed

Question 13

SUBJECT MATTER JURISDICTION: SUPPLEMENTAL AND REMOVAL JURISDICTION:

Supplemental Subject Matter Jurisdiction:

Cross‐Claims:

Answer 13

Supplemental jurisdiction applies.

• Claim by a plaintiff against another plaintiff, or by a defendant against a co‐defendant
• Cross‐claim and main claim must share a common nucleus of operative fact (note: they always will).
• Does NOT matter that the co‐plaintiffs or co‐defendants are not diverse or that the cross‐claim is worth less than $75,000+.

Question 14

SUBJECT MATTER JURISDICTION: SUPPLEMENTAL AND REMOVAL JURISDICTION:

Supplemental Subject Matter Jurisdiction:

Multiple Plaintiffs/Permissive Joinder

Answer 14

If the claim of one diverse plaintiff against the defendant satisfies the jurisdictional amount, other diverse plaintiffs who have claims against the defendant sharing a common nucleus of operative fact (same transaction or occurrence) can also be heard even if their claims do NOT satisfy the jurisdictional minimum.

• Note1: Remember that there is also a statute that allows federal subject matter jurisdiction over class actions wherein the total amount in controversy exceeds $5 million, so long as there is minimal diversity within one plaintiff and one defendant.

Question 15

SUBJECT MATTER JURISDICTION: SUPPLEMENTAL AND REMOVAL JURISDICTION:

Removal vs. Transfer

Answer 15

• Removal moves case from a state court to a federal court.
• Transfer moves case from federal court to federal court.

No procedure for removal of a case from federal to state court.

Question 16

SUBJECT MATTER JURISDICTION: SUPPLEMENTAL AND REMOVAL JURISDICTION:

Removal

Answer 16

CoA. in state court & D.C. has O.J. on CoA. A.u. C.L.T. of U.S. is removable by ∆(s) to D.C.

• All ∆(s) must consent to removal
• Not applicable if a ∆ citizen of state being removed from
• NOT INITIALLY REMOVABLE: ∆ may remove w/in 30 of removability & w/in 1 year from start (unless Pl acted in bad faith)
• When notice filed, case is removed automatically and instantly; once a copy of the notice is filed with the state, the jurisdiction of the state court ceases.
• Procedure:
  
  1. All ∆(s) consent to removal, then
  2. File signed notice of removal w/ S&P statement of grounds for removal, w/ copy pleadings/order/process served on ∆(s) in D.C.
  3. w/in 30 days of receipt by 1st ∆ of formal service [comt & summs]
  4. Promptly after filing notice ∆(s) shall give written notice all adverse parties & file copy of notice w/ clerk of State court

Question 17

SUBJECT MATTER JURISDICTION: SUPPLEMENTAL AND REMOVAL JURISDICTION:

Remand

Answer 17

if notice of removal defective, π may file motion to remand suit back to state court

• w/in 30 days[after waived] of receipt of notice of removal, & object to all procedural defects concerning removal
• May Remand if D.C. determine all fed’l matters resolved if state law claim predominates in interest of fairness/economy/comity [Remand for discretion: Appeals Court will review, but Remand for lack SMJ/defect removal procedure: NOT appealable]

Question 18

PERSONAL JURISDICTION:

In Personam Jurisdiction

Answer 18

court’s authority over a person

1. Domicile
2. Service of Process w/in the state
3. Consent/Waiver to PJ [consent implied if you drive through state & get into an accident]; &
4. Contacts
   
   • General J
   • Specific J

TIP: Must perform separate PJ analysis for each and every defendant.

Question 19

PERSONAL JURISDICTION:

In Personam Jurisdiction:

General Jurisdiction vs. Specific Jurisdiction

Answer 19

• General J: continuous & systematic contact w/ state that creates J over ∆ no matter where a CoA arises
• Specific J: Due process requires that there be minimum contacts between the defendant and the forum state, such that it is consistent with traditional notions of fair play and substantial justice to sue the defendant here.
  
  1. Long-Arm Statute: authorizes J over out-of-state ∆
  2. Contact w/ state created the CoA
  3. Purposeful availment: ∆ has purposefully availed itself of the benefits of the forum state, sufficient minimum contacts as to not offend traditional notion of fair play and substantial justice

Question 20

PERSONAL JURISDICTION:

In Rem Jurisdiction

Answer 20

[court’s authority over property]

• Requirements:
  
  1. real/personal property of value,
  2. property located w/in state,
  3. court must seize property, &
  4. owner of property must received notice

Question 21

PERSONAL JURISDICTION:

Quasi-in-Rem Jurisdiction

Answer 21

[attachment of property as part of relief requested]

Tries to use in‐state property as a basis for forcing an out‐of‐state defendant to litigate an unrelated claim.

• Reqs: same as in rem (below), However, to be constitutional forum must have Specific J. over ∆. Therefore, must perform, Specific J analysis.
• In Rem Requirements: 1) real/personal property of value, 2) property located w/in state, 3) court must seize property, &
  4) owner of property must received notice

Question 22

VENUE:

Answer 22

[based on residence]

C.o.A. jurisdiction founded on diversity may be brought only in:

1. J.D. where any ∆ resides, if all ∆s reside in same State,
2. J.D. where substantial part:
   
   • where events giving rise to claim occurred
   • where property subject of CoA situated
   • if neither #1 or #2 are applicable then must use #3
3. J.D. where any ∆ is subject to PJ. [If FQ then where any ∆ can be found]

• Corp residence: any district subject to PJ; however, must choice district w/ most significant contacts, if sufficient amount of contacts throughout state to satisfy PJ
• Alien: any district, but still have to accommodate other ∆s
• Venue may be waived/consent

Question 23

VENUE:

Transfer of Venue and Forum Non Conveniens

Answer 23

• Transfer:
  
  • Initial venue proper, but more convenient venue: court may transfer for convenience of parties & witnesses & interest of justice; law of initial venue will follow
  • Initial venue improper: court may transfers case to proper venue; law of initial venue will not follow
• Forum non conveniens: allows court to decline exercise its jurisdiction & dismiss
  
  • Procedure: File motion stating a seriously inconvenient forum & a subs’ly better alternative forum exist [state or foreign court], which leads to a dismissal

Question 24

Service of Process and Pleadings may be made on?

Answer 24

may be made by any person at least 18 y.o. & not party to action

Upon:

• Individuals: Personal, domiciliary [usual place of abode & leaving it someone of suitable age and discretion that resides there], agent for SoP
• Corporations: (1) Officer; (2) director; or (3) agent for SoP
• Partnership: general partner
• Adjudicated Incompetent: Service must be made on the incompetent AND her guardian
• Infant: Service on the infant AND on the parent or guardian
• Non‐resident motorists: Claims arising out of in‐state accidents; Under state law, a state official is appointed as the agent of the non‐resident motorist.

Question 25

The Erie Doctrine?

Answer 25

Erie simply means that in diversity cases, federal courts apply state substantive law.

Question 26

PLEADINGS AND DEFENSE MOTIONS:

Civil action is begun by?

Answer 26

• Federal question: filing a complaint with the court clerk
• Diversity action: state law controls when an action is begun.

Question 27

PLEADINGS AND DEFENSE MOTIONS:

Civil action is begun by?

Question 28

PLEADINGS AND DEFENSE MOTIONS:

Types of Pleadings:

Complaint:
Cross-claim:

Counter-claim:
3rd-part complaint:
Answer:
Reply:
Response:

Answer 28

• Complaint: Used to state a claim for relief
• Crossclaim: claim by a plaintiff or ∆ filed against a co‐party; arises out of same C.T.O as S.M. of opposing party’s claim
• Counterclaim: ∆’s claim against a plaintiff
• 3rd-part complaint: ∆ who impleads a third‐party ∆
• Answer: filed by the party against whom a claim is made
• Reply: Used by the plaintiff to answer a counterclaim
• Response: a party’s answer to a motion

Question 29

PLEADINGS AND DEFENSE MOTIONS:

Claims for Relief [complaint] must contain?

Answer 29

SHORT & PLAIN statement of:

1. grounds for court’s jurisdiction, [unless court already has jurisdiction];
2. claim [if true] showing pleader is entitled to relief; &
3. demand for relief sought

Fraud/mistake then must be plead w/ PARTICULARITY

Question 30

PLEADINGS AND DEFENSE MOTIONS:

Responses to a Claim for Relief

Answer 30

An answer must be served w/in 21 days of service of the complaint & summons

• Responses: failure to respond is an admission; Unless cured by amendment, admission is binding; Common practice ‐ include a “boilerplate” denial of everything not specifically admitted.
• An answer should containt responses, affirmative defenses, and counterclaims

Question 31

PLEADINGS AND DEFENSE MOTIONS:

Affirmative Defenses

Answer 31

• Defenses which require notice
• Common affirmative defenses include assumption of the risk, contributory negligence, duress, fraud, release, statute of frauds, and statute of limitations.
• Basically, any defense that has its own name is likely to be an affirmative defense and must be pleaded in the defendant’s answer.

Question 32

Counterclaims:

Compulsory vs. Permissive

Answer 32

• Compulsory [must claim if not then waived]:
  
  1. arises out of same C.T.O as S.M. of opposing party’s claim; &
  2. doesn’t require adding another party that court can’t get jurisdiction over
  • Lost if not pleaded ‐ must be raised now
• Permissive: against opposing party that’s not compulsory
  
  • May be pleaded now OR raised later

Question 33

12(b) Motions to Dismiss?

Answer 33

1. Lack of SMJ - Never waived
2. LACK OF PJ - Waived if not raised b/4 ans.
3. IMPROPER VENUE - Waived if not raised b/4 ans.
4. INSUFFICIENCY OF PROCESS - Waived if not raised b/4 ans.
5. INSUFFICIENCY OF SoP - Waived if not raised b/4 ans.
6. Failure state claim where relief can be granted - Made in 7(a) pleadings/ Mot. for jmt on pleadings, or at trial on the merits
7. Failure to join a party under Rule 19 - Same as 12(b)(6)

Question 34

12(b) Motions to Dismiss:

Risk of waiver

Answer 34

Rule 12(b)(2)-(5) defenses–listed below–omitted if a motion is made under rule 12(b) or an answer is served, but does not raise a defense available at the time of the earlier motion/answer.

• LACK OF PJ
• IMPROPER VENUE
• INSUFFICIENCY OF PROCESS
• INSUFFICIENCY OF SERVICE OF PROCESS

Question 35

Amended Pleadings:

Answer 35

• Before Trial May amend pleading ONCE [as a matter of course], if:
  
  • w/in 21 days after service or responsive pleading OR
  • w/ opposing party’s written consent or court’s leave (Judge must have a reason for denying leave to amend)
• Relation Back Amendment relates back to date of original filing of pleading, if:
  
  • Claim/defense arise out same C.T.O. asserted in original pleading, or
  • Amendment changes names of parties
    
    • Proper party received notice of filing w/in 120 days of SoP
    • (should) knew C.o.A. brought against it, but for mistake concerning proper party’s identity

Question 36

Amended Pleadings:

Amendment to Add a Party

Answer 36

An amendment to add or change a party against whom a claim is asserted must:

• Concern the same conduct, transaction, or occurrence as the original pleading; and
• The party to be added must have known or had reason to know that the action should have been brought against that party.

Question 37

Representations to Court & Sanctions [Rule 11]

Answer 37

• Signature: Atty/pro se party must sign all P/WM/CP certifying allegations made based on knowledge/info./belief formed after reasonable inquiry into law and fact.
• Representations: Presenting P/WM/OPC [signing/filing/advocating] atty certifies best of knowledge, info. & belief, formed after inquiry reasonable under circumstances & not for any improper use.
• Motion for Sanctions [Safe Harbor]:
  
  1. MUST put party on notice that Rule 11 sanction motion is about to be filed,
  2. Give 21 days to withdraw/correct challenged P/WM/OPC, after
  3. Motion made separately & describes specific conduct violating Rule 11(b).

Question 38

JOINDER, INTERPLEADER, AND 3RD-PARTY PRACTICE:

Joinder of Claims:

Answer 38

party may join multiple claims against an opposing party;

Unless,

joinder of claims would lead to jury confusion or some other prejudice

Question 39

JOINDER, INTERPLEADER, AND 3RD-PARTY PRACTICE:

Joinder of Parties:

Compulsory Joinder

Answer 39

Necessary & Indispensable Parties due to degree of PREJUDICE

1. If party subject to SoP & whose joinder won’t ruin SMJ,
2. AND:
   
   • court CAN’T PROVIDE COMPLETE RELIEF IN HIS ABSENCE; OR
   • claims interest relating to SM CoA & absence of party impairs ability to protect interest

• Must dismiss joined party if he objects to venue & joinder makes venue improper
• If Joinder Not Feasible Court must determine whether to dismiss action:
  • Factors: 1) extent jmt w/o person PREJUDICES existing parties/missing person; 2) prejudice lessened by shaping relief results in adequate relief; & 3) whether π has adequate remedy if action dismissed for nonjoinder.

Question 40

JOINDER, INTERPLEADER, AND 3RD-PARTY PRACTICE:

Joinder of Parties:

Permissive Joinder

Answer 40

1. right to relief asserted by/against him jointly/severally arising out of same C.T.O.; &
2. any question of law or fact common to all π/∆, will arise in action.

• Court may take Protective Measures [separate trials] to protect a party against embarrassment, delay, expense, or prejudice.
• Diversity cases ‐ NO party can be joined whose presence would defeat complete diversity

Question 41

JOINDER, INTERPLEADER, AND 3RD-PARTY PRACTICE:

Interpleader

Answer 41

due exposure to multiple liability from adverse claims action commenced to resolve liability b/w multiple adverse claimants as to a particular obligation [one piece of property, insurance policy, proceeds, etc]; Used to resolve the problem of competing claims to the same property

• Property at issue ‐ stake: real or personal, tangible or intangible
• Person holding the property ‐ stakeholder
• Persons claiming the property ‐ claimant
• Procedure:
  • A) claims lack CNOF or are adverse and independent rather than identical; OR
  • π denies liability in whole or in part to any or all of claimants.

Question 42

JOINDER, INTERPLEADER, AND 3RD-PARTY PRACTICE:

Interpleader:

Rule 22 Interpleader vs. Statutory Interpleader

Answer 42

• Rule 22 Interpleader:
  
  1. complete diversity &
  2. $75K A.i.C. for diversity cases.
  • Ordinary venue requirements apply.
• Statutory Interpleader:
  
  1. $500 A.i.C.
  2. Minimal diversity b/w any 2 claimants
  3. π deposited money/property/amt due under obligation into registry of court or bond w/surety payable to clerk court in amount
  • Nationwide service of process
  • Venue proper where any claimant resides

Question 43

JOINDER, INTERPLEADER, AND 3RD-PARTY PRACTICE:

3rd-Party Practice [Impleaders]

Answer 43

∆, 3rd-party π, may serve a S&C on nonparty who is/may be liable for all/part of the claim against ∆ filed [w/in 14 days after service of original answer]

• Impleaded party ‐ 3rd party defendant
• Original defendant ‐ 3rd party plaintiff as against the 3rd‐party defendant

Question 44

JOINDER, INTERPLEADER, AND 3RD-PARTY PRACTICE:

Intervention:

Intervention of Right vs. Permissive Intervention

Answer 44

• Intervention of Right
  
  • unconditional right conferred by a fed’l statute; OR
  • claims interest SM CoA & absence may impair/impede ability protect interest
• Permissive Intervention
  
  • conditional right conferred by a fed’l statute; OR
  • claim/defense that shares w/ main action a common question of law or fact

Both types must be timely ‐ “reasonable promptness”

No one can intervene whose presence would destroy diversity or whose claim does not exceed $75,000.

Question 47

CLASS ACTIONS:

Rule 23 Elements of Class Action

Answer 47

1. class so NUMEROUS joinder all members is impracticable,
2. questions of law/fact COMMON to entire class,
3. claims of rep(s) TYPICAL of claims of class; &
4. atty will fairly & ADEQUATELY protect interests of class, & IF:
   
   • separate actions create risk of
     
     • (1) inconsistent adjudications OR
     • (2) substantially impair class members ability protect their interests; ∆’s acts apply gen’ly to class, so final relief appropriate to class; OR
     • court finds (1) questions law/fact common to class predominate over those affecting only individual members, & (2) class action superior to other methods for fairly & efficiently adjudicating controversy. Factors: individual members’ interests in controlling separate actions; extent/nature any litigation already begun by/against class members;[un]desirability concentrating litigation of claims in particular forum; & likely difficulties in managing class action.

PJ not necessary over absent members of class if they get notice, but needed for ∆s

Question 48

1332(d)(5)(b) Ordinary Class Action?

Answer 48

1. Class rep(s) diverse from ∆(s) &
2. One class member w/ A.I.C. exceeds $75K excluding I&C

Question 49

1332(d)(11)(b) Mass Class Action [not applicable is truly localized case]?

Answer 49

1. A.I.C. exceeds $5m excluding I&C;
2. Class rep(s) diverse from ∆(s); &
3. At least 100 πs

Question 50

1369 Single Deadly Event Class Action

Answer 50

1. minimal diversity b/w adverse parties
2. arises from a single accident,
3. at least 75 natural persons have died in accident at discrete location, if—

• (i) ∆ resides in State & subs’l part of accident took place in another State;
• 2 ∆s reside in different States, even if ∆s also residents same State; or
• subst’l parts of accident took place in different States.

Not applicable if (1) sub’l # πs citizens 1 State & primary ∆s; & (2) applicable law.

Question 51

Dismissal or Compromise OF A CLASS ACTION REQUIRES?

Answer 51

Class actions can’t be settled w/o court approval & court evaluates settlement proposal on whether it’s FAIR, REASONABLE & BEST INTEREST OF CLASS

Question 52

SCOPE OF DISCOVERY:

Answer 52

relevant to a claim or defense of a party, which is not subject to a privilege & not unreasonably cumulative or burdensome

• Discoverability v. admissibility: may be discoverable, but inadmissible in court as long as it’s reasonably calculated to lead to discovery of admissible evidence
• Work-product: Mat’l prepared in anticipation of trial, which is undiscoverable; Unless, there’s a special showing that there is a substantial need for the mat’l & w/o undue hardship opposing party can’t obtain a substantial equivalent
• Consulting [not testifying] experts: undiscoverable w/o a showing that it’s impracticable for a party to obtain facts /opinions on same subject by other means

Question 53

Scope of Discovery:

Work product rule

Answer 53

The attorney work product is not subject to discovery.

• work product produced in anticipation of litigation is not protected
• Qualified immunity:
  • Can be overcome if the party seeking discovery shows:
    
    1. Need for the document or thing; and
    2. That the information cannot be obtained elsewhere.
       * Does not apply to atty’s mental impressions

Question 54

Scope of Discovery:

Experts & witnesses that will be used at trial:

Answer 54

must disclose or can’t be used;

Expert disclosures must Include (i) opinions; (ii) info used to come to opinion; (iii) all exhibits to be used; (iv) what makes expert, list of publications, (v) all other cases testified in & (vi) payments

Question 55

DISCOVERY DEVICES:

Deposition

Answer 55

Oral Deposition:

• Questions are asked and answered orally and under oath
• Limited to 10 depositions, unless the court allows more
• Each is limited to one day of 7 hours, unless the court allows more.
• Any kind of notice suffices for the deposition of a party; but
• a deposition of a nonparty witness requires a subpoena
• A subpoena duces tecum requires the deponent to bring specified documents or things.
• Can be taken at any time after the party has made mandatory disclosures
• May be taken before any notary public

Written Deposition:

• Questions are delivered to an officer who asks orally the questions written down beforehand.
• Rarely used

Question 56

DISCOVERY DEVICES:

Interrogatories

Answer 56

• Questions asked in writing to be answered under oath in writing
• May be used only against a party
• Limited to 30 interrogatories, unless the court allows more o Responses required within 25 days

Question 57

DISCOVERY DEVICES:

Discovery and Inspection of Documents and Land

Answer 57

• Called a request to produce and permit inspection
• Applies only to documents and land under the control of a party
• The thing to be produced and inspected must be described with particularity
• Response is due within 30 days.

Question 58

DISCOVERY DEVICES:

Physical and Mental Examination

Answer 58

• Can be ordered only against a party
• Only permitted for a condition in controversy
• Only for good cause shown

Question 60

DISCOVERY DEVICES:

Request for Admission

Answer 60

• Used to streamline the lawsuit
• Failure to respond within 30 days is an admission
• Certification: Responses to requests for admissions (and all other documents) must be signed by the attorney of record.
  • The signature certifies that there is a reasonable basis and good faith for denying the request.
• Admissions have no preclusive effect.
  
  • Only binding in the current lawsuit
  • Cannot be used in any future proceeding

Question 61

DISCOVERY DEVICES:

Use of Depositions

Answer 61

• Discovery does not equal admissiblity
• Deposition of an adverse party is admissible as an admission against interest.
• Deposition of a witness can be used to impeach
• Deposition of a witness who does NOT testify can be used if the witness is dead or beyond the court’s subpoena power or otherwise unavailable.
• Can also be used if the witness is more than 100 miles from the place of trial.

Question 62

DISCOVERY DEVICES:

Enforcement Sanctions

Answer 62

The court can immediately impose sanctions in three instances of complete default:

1. Failure to attend one’s own deposition;
2. Failure to respond to interrogatories and
3. Failure to respond to a request for documents or things.

Otherwise, the court should first issue an order to compel before imposing sanctions.

Question 63

PRE-TRiaL, TRIAL, AND POST-Trial MOTIONS AND JUDGMENTS:

Dismissals:

Involuntary Dismissals

Answer 63

• Dismissal for lack of SMJ, PJ, venue, or failure to join a party: w/o prejudice
• All other involuntary dismissals: w/ prejudice

Question 64

PRE-TRiaL, TRIAL, AND POST-Trial MOTIONS AND JUDGMENTS:

Dismissals:

Voluntary Dismissals

Answer 64

• Prior to responsive pleading: π may file a notice before for dismissal. [only allowed once, the 2nd time is w/ prejudice]
• After responsive pleading: π may file dismissal action by filing a stipulation signed by all parties. If other part won’t sign the court will decide whether or not to proceed based primarily on potential prejudice suffered by the opposing party

Question 65

PRE‐TRIAL AND TRIAL PROCEDURE:

Pre‐Trial Conference

Answer 65

• Must be attended by the attorneys who will conduct the trial.
• Must file a pre-trial statement detailing:
• Claims and defenses, itemization of damages, requests for stipulations and admissions, list of all witnesses and exhibits, etc.
• Failure to comply usually means that the attorney pays the costs and the other side’s attorney’s fees.

Question 66

PRE-TRiaL, TRIAL, AND POST-Trial MOTIONS AND JUDGMENTS:

Summary Judgment

Answer 66

Jmt sought should be rendered b/c pleadings, discovery & disclosure mat’ls on file, show no genuine issue of mat’l fact & movant entitled to JMOL.

[looking at evidence in light most favorable to non-moving party]

• Procedure: File motion anytime until 30 days after close of all discovery [21 to reply, 14 to answer reply]
• π: must support every element of its CoA w/ proper summary judgment proof
• ∆: must support every element of an affirmative defense OR that elements of π’s case can’t be proven

Question 68

PRE-TRiaL, TRIAL, AND POST-Trial MOTIONS AND JUDGMENTS:

Jury Trials

Answer 68

7th amend. right to jury trial is only for legal action, not equity

• Waiver: Right to Jury waived; Unless, affirmatively demanded:
  
  1. written demand served on other party &
  2. w/in 14 days after last pleading directed toward the issue is served
• Selection through voir dire process: [∞ amount for cause & 3 per side for peremptory]
  
  • 3 bases for challenges for cause: gen’l disqualification, implied bias or actual bias
  • Peremptory challenges: any reason but not on the basis of race or sex
• Jury Instructions: Any objection to the instructions given by the trial judge must be made BEFORE the jury retires

Question 69

PRE-TRiaL, TRIAL, AND POST-Trial MOTIONS AND JUDGMENTS:

Judgment as a Matter of Law (Directed Verdict)

Answer 69

no genuine issue of mat’l fact & movant entitled to JMOL. [looking at evidence in light most favorable to non-moving party Court finds reasonable jury would not have legally sufficient evidentiary basis to find for party on that issue]

• Procedure:
  
  1. After party fully heard on issue during jury trial, but before case submitted to jury
  2. specifying jmt sought & law & facts that entitle movant to jmt.

Question 70

PRE-TRiaL, TRIAL, AND POST-Trial MOTIONS AND JUDGMENTS:

Renewed Motion Judgment as a Matter of Law (JNOV)

Answer 70

no genuine issue of mat’l fact & movant entitled to JMOL. [looking at evidence in light most favorable to non-moving party a reasonable jury doesn’t have legally sufficient evidentiary basis to find for other party]

• Procedure:
  
  1. JMOL not granted;
  2. No later than 28 days after entry of jmt/jury discharged;
  3. May file a renewed motion JMOL & include alternative or joint request for new trial under Rule 59.
• If party never made JMOL can’t be heard after verdict, but may motion for a new trial

Question 71

PRE-TRiaL, TRIAL, AND POST-Trial MOTIONS AND JUDGMENTS:

Motion for New Trial

Answer 71

No later than 28 days after entry of jmt/jury discharged

• Procedural error: whether error occurred, if so, was it harmless.
• Weight of evidence: whether jury’s verdict is against the clear weight of the evidence; [court may consider its own view of credibility of witnesses, unlike in its evaluation of a motion for JML or a RJML]
• Excessiveness or inadequacy of verdict: whether jury misunderstood its duty or has acted w/ extreme prejudice.

Question 72

PRE-TRiaL, TRIAL, AND POST-Trial MOTIONS AND JUDGMENTS:

Conditional New Trial

Answer 72

new trial condition on certain circumstances Ex: If a new trial limited to issue of damages would be proper, court may grant new trial subject to the condition that motion for new trial would be denied if π consented to a certain reduction in amt of jmt.

• Remittitur: ask the judge to reduce the award of damages that are excessive
• Additur: ask judge to increase award of damages [Unconstitutional in Fed’l court]

Question 73

PRE-TRiaL, TRIAL, AND POST-Trial MOTIONS AND JUDGMENTS:

Relief from Judgment or Order

Answer 73

following reasons:

1. mistake, inadvertence, surprise, or excusable neglect;
2. newly discovered evidence that could not have been discovered w/ reasonable diligence in time to move for a new trial under Rule 59(b);
3. fraud, misrepresentation, or misconduct by opposing party;
4. jmt is void;
5. jmt satisfied, released, or discharged; it’s based on an earlier jmt that’s been reversed or vacated; or applying it prospectively is no longer equitable; or
6. any other reason that justifies relief.

Procedure: w/in a reasonable time for (1) – (3) Less than year after entry of jmt

Question 74

APPEALS:

Notice & Standard(s) of Review

Answer 74

• Notice of appeal must be filed in the trial court within 30 days of entry of judgment; A timely post‐judgment motion (e.g., renewed motion for JMOL or a new trial motion) tolls the 30‐day limit.
• Standards of Review: [depends on court of appeals is looking at]
  
  • Conclusions/rulings on law: Reviewed De Novo
  • Findings of fact: Only if clearly erroneous
  • Other determinations by trial judge [e.g. rulings on discovery motions]: Abuse of discretion

Question 75

APPEALS:

Permitted Interlocutory Appeals

Answer 75

Interlocutory Orders Immediately Appealable as of Right

• INJUNCTIONS: immediately appealable to court of appeals
• COLLATERAL ORDER DOCTRINE: appeal authorized from non-final order that conclusive determines something in dispute that does not effect merits of case
• CERTIFICATION [trial court certifies an order for appeal]: (1) order involves a controlling question of law that’s a substantial ground for difference of opinion; & (2) an immediate appeal from the order may mat’lly advance the termination of the litigation

Question 76

PRECLUSION LAW:

Res Judicata

Answer 76

[Claim Preclusion]

Prevents re-litigation of claims:

1. b/w same parties;
2. prior case disposed of on merits [w/ prejudice]; AND
3. in correct court [SMJ & PJ]

Note: Look for CNOF, this theory promotes judicial economy.

Question 77

PRECLUSION LAW:

Collateral Estoppel:

Mutual collateral estoppel:

Answer 77

[Issue Preclusion]

Prevents re-litigation of issue, if:

1. b/w same parties;
2. issue in common;
3. issue litigated and decided in 1st action; &
4. disposition of issue necessary to jmt in 1st action

• TIP: Note the difference b/w adjudication upon merits & “actually litigated.” “AUTM” res judicata applies to a claim that has been disposed of, even if no one ever really decided it on underlying merits (e.g., dismissal as a sanction). “Actually litigated” means the case actually came to a conclusion (jury decided).

Question 78

PRECLUSION LAW:

Collateral Estoppel:

Non-mutual estoppel:

Answer 78

[Issue Preclusion]

• Against a party who was not a party to the 1st action: allows re-litigation
• DEFENSIVELY by a party who was not part of the 1st case against a party who was a π & lost the issue in the 1st case: estoppel will deny re-litigation
• OFFENSIVELY by a party who was not part of the 1st case against a party who was a ∆ & lost issue in 1st case: it depends on whether issue in 1st action fully & fairly litigated

Question 79

PRECLUSION LAW:

Use of Criminal Cases in Civil Proceedings

Answer 79

• Acquittal: not allowed to use against civil π
• Conviction: possible to use Offensive non-mutual estoppel, if fully & fairly litigated