Federal Civil Procedure Flashcards

Question

Supplemental Jurisdiction

Answer 1

A party may use supplemental jurisdiction to have his claim heard (even if it's not a FQ or diversity) in Federal Court if the claim meets the Common Nucleus of Operative Fact Test, unless the claim is: (1) Asserted by a Plaintiff; (2) In a diversity case; and (3) Asserted against a citizen of the same State as the Plaintiff. Note: Plaintiffs *cannot* invoke supplemental jurisdiction in diversity cases even if they met common nucleus test. However, * **Exception** **to** **limitation** - However, a co-plaintiff with a below-limit claim generally can use supplemental jurisdiction to have his claim heard in federal court so long as the co-plaintiff's presence in the suit does not destroy complete diversity.

Answer 2

What type of law should the Federal Court apply in a diversity case? Is there some federal law (Constitution, federal statute, FRCP, FRE) on point that directly conflicts with state law? If so, apply federal law as long as it is valid (Supremacy clause) A Federal Court in a diversity case will apply Federal procedural rules, but the substantive law of the state in which it sits. If there is no Federal law on point, the Federal Judge must apply State law if the issue is to be decided is substantive. Substantive Law Issues: (CREST) (1) **C**onflict of law rules; (2) **E**lements of a claim or defense; (3) **S**tatutes of limitation; (4) **R**ules for tolling statutes of limitations; and (5) **T**he standard for granting a new trial because the jury's damages award was excessive or inadequate If there is no federal law on point and the issue is not one of the (5) listed above, the federal judge must determine whether the issue is substantive by weighing: (BAD) (1)**B**alance of interests; (2) **A**void forum shopping; (3) the outcome **D**eterminative.

Answer 3

Venue question is whether the proper geographic district is proper to bring an action. The Plaintiff may lay venue in: (1) A judicial district in which any **defendant** **resides**, if all defendants are residents of the state in which the district is located; (2) A judicial district in which a **substantial part** of the events or **omissions** giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district anywhere in the U.S. which satisfies either of the first two circumstances, a judicial district in which any Defendant is subject to the court's **personal jx** w/ respect to the action. Note: A substantial part of the claim can arise in more than one district - i.e. tort claim can arise where the injury occurred and where the product was manufactured. If Defendant resides outside of the U.S., venue is proper in any federal district court, but if another Defendant does reside in the U.S., venue must be proper as to her.

Answer 4

One trial court in a judicial system to another trial court in **same** judicial system. The original court is the Transferor and the one to which the case is sent is the Transferee. Transferee must be a proper venue and have PJ over the Defendant - and generally must be true without waiver by the Defendant. Minor Exception - The Court can transfer to any district if ALL parties consent and the court finds cause for the transfer.

Answer 5

If the original district is a proper venue, the court can order transfer based on **convenience** of parties and witnesses and in the **interests** **of** **justice**. The burden is on the person seeking transfer. The Court will consider both: (1) Public; and (2) Private factors showing that another court is the **center of gravity** for the case. (1) Public - What law applies, what community should be burdened w/ jury service, the desire to keep a local controversy in a local court. (2) Private - Convenience. I.e. Court will look to where the Defendants and evidence are found.

Answer 6

When a diversity case is transferred from a proper venue, the Transferee court must apply the choice of law rules of the transferor court.

Answer 7

Provision in which the parties agree that a dispute between them will be litigated in a particular place. Key points to remember: (1) Federal law enforces FSCs if they're not **unreasonable**. Some states do not. But in federal court, federal law governs transfer. So a federal court may enforce an FSC clause even though a state court in that forum state would not; (2) When there is a valid FSC, only **public** **interest** **factors** are considered for transfer; and (3) When transfer is to enforce an FSC, the transferee court will **apply its owns choice of law rules**. The transfer does not carry the transferor's choice of law rules with it.

Answer 8

The Court may transfer the interest of justice or dismiss. Usually, the court will transfer if possible. When the federal court transfers a diversity case because the original venue is improper, the transferee applies its own choice of law rules.

Answer 9

Forum non convenient applies when there is another court that is the center of gravity for the case. But here, the Court **cannot** **transfer** the case to that court because it is in a **different** **judicial** **system**. The court invoking FNC will stay **or** dismiss the case. Court applies both public and private factors The other court must be available and adequate where Plaintiff can get remedy.

Answer 10

Filing of the complaint commences an action and must contain: (1) A statement of grounds of SMJ; (2) A SHORT and plain statement of the claim showing that the Plaintiff is entitled to relief (sufficient facts to support a plausible claim); and (3) A demand of relief sought (i.e. Damages, injunction, declaratory judgment) Plaintiff need not allege grounds for PJ or venue. Note: For fraud, mistake, and special damages Plaintiff must plead with more detail; that is with (1) Particularity; or (2) Specificity.

Answer 11

Motions are not pleadings rather they are requests for a court order. Defendant can challenge the complaint by making Rule 12(b)(6) motion to dismiss for failure to state a claim.

Answer 12

Some Rule 12(b) defenses are **waived** if not put in the first Rule 12 response (motion **or** answer) This includes: "**PPPV**" (1) Lack of **p**ersonal jurisdiction; (2) Improper **V**enue; (3) Improper **P**rocess (problem w/ the papers); and (4) Improper Service of **P**rocess. The following defenses **can be raised late**r even if they are not included in the first response: (1) Failure to state a claim and a failure to join an indispensable party. These motions can be made **as late as at trial**; (2) Lack of SMJ may be raised at **any time**.

Answer 13

(1) Rule 12(e) motion - Address issues of form when the complaint is so vague or ambiguous the Defendant simply cannot respond; must make this motion before answering; (2) Rule 12(f) motion - Motion to strike asks the court to remove redundant or immaterial things from a pleading; and (3) Any party can move to strike.

Answer 14

If a Defendant's motion to dismiss under Rule 12 is denied, s/he must answer no later than 14 days after notice of denial.

Answer 15

Defendant may: (1) Admits some or all allegations; (2) Deny some or all allegations; and (3) State that s/he has insufficient knowledge to admit or deny some or all of the allegations. A party may not assert this if the answer to the allegation is in his/her control. The failure to deny any allegation is an admission except regarding the amount of damages.

Answer 16

Plaintiff has a right to amend her complaint once as of course no later than 21 days after the Defendant serves her first Rule 12 response. Defendant has a right to amend his answer once as of course no later than 21 days of serving it. Can include waivable defenses and raise affirmative defenses. After 21 days, the amending party must seek **leave of court** or get the written **consent** of the opposing party. The court will grant leave to amend if justice so requires weighing: (1) Length of delay; (2) Prejudice to the other party; and (3) Futility of Amendment

Answer 17

When the evidence at trial does not match what was pleaded. If the other party fails to object at trial, the party introducing the evidence may move to amend the complaint to conform to the evidence.

Answer 18

An amended pleading relates back if the pleading concerns the same: (1) Conduct; (2) Transaction; or (3) Occurrence as the original pleading. Relation back means you treat the amended pleading as though it was filed when the original was filed, so it can avoid a SOL problem.

Answer 19

The amendment will relate back if: (1) The Amendment concerns the same conduct, transaction, or occurrence as the original; (2) the Defendant had such knowledge of the case such that she will be able to avoid prejudice; and (3) the Defendant knew or should have know that, but for a mistake, she would have been named originally. Defendant must have had knowledge within the period of service of process (90 days after the filing of the complaint).

Answer 20

Supplemental pleadings set forth things that happened after the pleadings were filed. There is no right to file a supplemental pleading. You must make a motion; whether that motion is granted is within the discretion of the trial court. NO time limit re when it can be filed NO need for it to be related to original action

Answer 21

Rule 11 applies to all papers except Discovery. When the Lawyer or Pro Se party signs documents, she certifies that to the best of her knowledge and belief, after reasonable inquiry: (1) Paper is not for an improper purpose; (2) Legal contentions are warranted by law or a nonfrivolous argument for a law change; **and** (3) Factual contentions and denials of factual contentions have evidentiary support or are likely to after further investigation.

Answer 22

The purpose of sanctions is to deter a repeat of the conduct. If there is a violation, such as an assertion of a baseless claim, sanctions may be imposed against the party, the lawyer, and/or the lawyer's firm. Two (2) types of sanctions: (1) Non-monetary - Requiring lawyers to attend professionalism classes; (2) Monetary - Paid to the court, not to the other party. The Court must give the sanctioned party an opportunity to be heard.

Answer 23

If the other party violates Rule 11, the opposing party cannot immediately file a motion for sanctions. Rather, she serves the motion on the other parties but does not file it with the court yet. The party in violation has a safe harbor of **21 days** in which to fix the problem and avoid sanctions. If she does not do so, then the motion can be filed with the court.

Answer 24

Under the FRCO, claim joinder by the Plaintiff is easy because Plaintiff may join any additional claim she has against that adverse party - even if the additional claim is unrelated to the original claim. But, there must be: SMJ over the claim too.

Answer 25

Claims by multiple Plaintiffs or against multiple Defendants must: (1) Arise from the same Transaction or Occurrence (T/O); and (2) Raise at least one common question of law or fact.

Answer 26

(1) Is the absentee necessary (or required)?; (2) If the absentee is necessary, can the absentee be joined?; and (3) If the absentee can't be joined, can the case proceed anyway? Necessary means that: (1) Without the absentee, the court cannot accord complete relief among the existing parties; or (2) The absentee's interest may be harmed is she is not joined; or (3) The absentee claims an interest that subjects a party (usually the defendant to a risk of multiple obligations.

Answer 27

If an absentee is labeled as necessary, a Court will see if joinder of the absentee is feasible. Joinder is feasible if: (1) There is PJ over the absentee; and (2) There will be federal SMJ over the claim by or against the absentee. In determining whether the claim invokes diversity, the court aligns the absentee as a Plaintiff or Defendant based on the absentee's interest.

Answer 28

However, if Absentee cannot be joined, the court then must determine whether to proceed without the Absentee or dismiss the entire case based on the following factors: (1) Is there an alternative forum available?; (2) What is the actual likelihood of harm to the Absentee?; and (3) Can the court shape relief to avoid that harm to the absentee? Do not necessarily need a necessary party's presence to continue w/ the case. It's just necessary to join him if feasible. But if the court decides to dismiss rather than proceed without the absentee, the absentee is called indispensable.

Answer 29

A counterclaim is a claim against an opposing party. After the Defendant serves a counterclaim against the Plaintiff, the Plaintiff must respond under Rule 12 within **21 days **of service of the counterclaim. There are two types of counterclaims: (1) Compulsory; and (2) Permissive. There must be SMJ over the counterclaims, so you must assess whether the counterclaim can invoke Diversity jx or Federal Question. If no to both, check if there is supplemental jx.

Answer 30

Compulsory claim is one that arises from the same T/O as the Plaintiff's claim. Unless the counterclaimant has already filed the claim in another case, she must file the compulsory counterclaim in the pending case or the claim is waived.

Answer 31

Permissive counterclaim is one that does not arise from the same T/O as the Plaintiff's claim. Permissive means that a party is not required to file it in the case and can sue on the claim in a separate case.

Answer 32

A crossclaim is a claim against a co-party. It must arise from the same T/O as the underlying action. But it is not compulsory; it can be asserted in another case.

Answer 33

Needs SMJ [diversity/FQ] and if that fails, try supplemental jdx. An impleader claim is one where a Defendant is bringing in a **new party** for derivative liability. Defendant bringing the claim is called a third-party plaintiff and the new party is called a third-party defendant (TPD). An impleader claim is used to **shift** to the TPD the **liability** that the Defendant will owe to the Plaintiff. So if the Defendant is found liable to the Plaintiff, he will try to get the TPD to pay all or part of his own liability. Impleader claim is permissive, meaning that the Defendant need not bring it in the current case. *Look for claims for indemnity or contribution.

Answer 34

Plaintiff must allege in a verified complaint that: (1) She was a shareholder at the time of the transaction complained of (or received her shares thereafter by operation of law); (2) Action is not a collusive effort to confer jurisdiction on the court that it would otherwise lack; and (3) She made a demand on the directors and, if required by state law, on the shareholders, or if she did not make such a demand, she gives the reasons why she did not make such demands.

Answer 35

Indemnification - a contractual obligation of one party to compensate the loss incurred by another party. Indemnity shifts liability **completely** so the TPD must cover the full claim. Contribution shifts it pro-rata so the TPD must cover a **pro-rata portion** of the claim.

Answer 36

Defendant must: (1) File a third-party complaint naming the TPD; and (2) Have that complaint formally served on the TPD. There is a right to implead within **14 days** of serving the answer. After that, court permission is needed.

Answer 37

After the TPD is joined, the Plaintiff may assert claims against the TPD, and the TPD may assert claims against the Plaintiff, that arise out of the same T/O as the underlying case.

Answer 38

There is PJ over an impleaded party if he is served in a district in the U.S. and not more than 100 miles from the federal court that issued the summon regardless of his contacts with the forum. If more than 100 miles, there must be traditional contacts-based PJ.

Answer 39

A nonparty absentee uses intervention to bring herself into the case. She chooses to come in either as a Plaintiff to assert a claim or as a Defendant to defend a claim. The court may realign the intervening party if it thinks the absentee came in on the wrong side. Application to intervene must be timely. Intervention can be of right or permissive. Must assess whether the claim by/against the intervenor invokes diversity or FQ SMJ. If neither applies, then you try supplemental. But remember that a claim by an intervenor plaintiff in a diversity case is a claim by a Plaintiff, so the limitation on supplemental jurisdiction may apply.

Answer 40

If the absentee's interest may be harmed if she is not joined, and that interest is not adequately represented by the current parties, intervention is "of right".

Answer 41

If the absentee's claim or defense and the pending case have at least one common question of law or fact, intervention would be permissive and discretionary with court. Permissive intervention is usually allowed unless it would cause delay or prejudice to someone.

Answer 42

Interpleader applies if separate actions might result in double liability against a stakeholder. An interpleader suit permits a person/stakeholder to require two or more adverse claimants to the stake to litigate amongst themselves to determine which, if any, has the valid claim to it. There are two interpleader procedures in the Federal Courts: (1) Rule 22 and (2) Section 1335.

Answer 43

Requires: (1) Complete diversity between the stakeholder and all adverse claimants and in excess of $75,000 in issue; or (2) Federal Question claim. Normal service and venue rules apply.

Answer 44

Requires only diversity between any two contending claimants and $500 be in issue. Service may be nationwide and venue is proper where any claimant resides. Allows to bring the action without specific PJ over defendants.

Answer 45

To qualify for a class action, all (4) of the following must be demonstrated: (1) **Numerosity** meaning that there are too many class members for practicable joinder (no magic number); (2) **Commonality** meaning there must be some issue in common to all class members, so resolution of that issue will generate answer for everybody in one stroke; (3) **Typicality** where the class rep's claims are typical of the claims of the class; and (4) **Representative** **adequate** where the class rep will fairly and adequately represent the class. **Example** Discrimination case w/ class of both applicants and former employees creates conflict of interest --> fails class action requirements

Answer 46

After satisfying the (4) requirements, the action still must fall into one of the (3) types of class actions: (1) Type 1 (Prejudice) - Class treatment is necessary to avoid harm (prejudice) either to class members or to the non-class party. These types of class actions are rare; (2) Type 2 (Injunctive or Declaratory Relief) - Type 2 class actions seeks an injunction or a declaratory judgment because the Defendant treated the class member alike. Plaintiffs in a Type 2 class action generally cannot seek damages; (3) Type 3 (Common Question or Damages) - Type 3 class action, (a) common question must predominate over individual questions; and (b) the class action is superior method to handle the dispute. This type of class action is frequently used for mass torts.

Answer 47

In a Type 3 class action, the Court must notify class members that they are in a class. This means individual notice (usually by mail) to all reasonable identifiable members. The notice, paid for by the rep, tells the class members various things, including that they: (1) Can opt out; (2) Will be bound by the judgment if they don't opt out; and (3) Can enter a separate appearance through Counsel. This notice is not required in Type 1 or Type 2 class actions. In Type 1 and Type 2 all class members are bound by the judgment.

Answer 48

A case is not a class action until the Court grants the motion to certify it as a class action. The court also must: (1) Define the class and the class claims, issues, or defense; and (2) Appoint class counsel, who must fairly and adequately represent the interests of the class.

Answer 49

Parties can settle or dismiss a certified class action only with court approval. In all (3) types, the court must give notice to the class members to get their feedback on whether the case should be settled or dismiss. If it's a Type 3 class, the Court also might refuse to approve the settlement unless members are given a second chance to opt out.

Answer 50

If the class action asserts rights under federal law, FQ jx may be used. For diversity cases, only the citizenship of the class representative is considered, and her claim must exceed $75,000. * As long as the class rep's claim meets the requirements of diversity, the class action may use diversity.

Answer 51

CAFA grants SMJ separate from diversity of citizenship jx. It lets a federal court hear a class action if: (1) At least 100 members; (2) Any class member, not just the representative, is of diverse citizenship from any Defendant; and (3) The aggregated claims of the class exceed $5 million. Any Defendant may remove the case from state to federal court. Makes it easier for interstate class action to go to federal court.

Answer 52

There are complicated provisions to ensure that local classes do not stat in federal court; these cases get dismissed **or** if they were removed from state court, they get remanded to state court.

Answer 53

Discovery is the phase of litigation in which the parties find out what the other parties and witnesses know. The idea is to avoid trial by ambush - we want things known before we go to trial. A party cannot send discovery requests to another party until after the Rule 26(f) conference. Minor Exception: Requests to produce can be served earliest - once 21 days has passed since service of process.

Answer 54

Initial required disclosures are information that each party must give to other parties - even though the parties have not asked for it. Must be within **14** **days** of the Rule 26(f) conference (unless Court states otherwise), each party must disclose certain information. This includes: (1) The names, telephone numbers, and addresses of person with discoverable information, and the topics on which they have discoverable information, who the party may use to support her claims or defense UNLESS USE WOULD BE SOLELY FOR IMPEACHMENT PURPOSES; (2) Documents **and** tangible things that the party may use to support her claims or defenses must be disclosed as an initial disclosure. - I.e. Photographs, records, videos, and ESI (including photos on phones) Documents and tangible things that are NOT in the party's control need NOT be disclosed.

Answer 55

Anyone claiming monetary relief must provide a computation, supported by documents or ESI of the amount sought as an initial disclosure.

Answer 56

Parties must disclose any insurance that might cover all or part of the judgement in the case even though the existence of the insurance probably would not be admissible at trial. Note - Discoverable is broader than admissible.

Answer 57

If a party fails to disclose material that was required to be disclosed, that party cannot use the undisclosed material in the case unless the failure to disclose was substantially justified or harmless.

Answer 58

Each party must identify expert witnesses who may provide testimony at trial (that is, opinion testimony) and provide certain other disclosures including a written report prepared by the EW including: (1) Opinions that the EW will express; (2) Bases for the opinions; (3) Facts used to form the opinions; (4) How much the EW is being paid. Earlier drafts of the EW report and communications between the lawyer and the EW are work product.

Answer 59

An expert hired to help w/ preparing a case, but the party doesn't intend to call that expert to testify at trial. Such expert is not an expert witness, but rather a consulting expert. Facts known and opinions held by consulting experts are generally not discoverable absent exceptional circumstances.

Answer 60

A party may take the deposition of the EW. Best practice is for that party to subpoena the EW to compel her attendance. The deposing party ordinarily will bear the cost of the EW's deposition.

Answer 61

If a party fails to disclose material that was required to be disclosed, she cannot use the EW in the case unless the failure was justified or harmless.

Answer 62

No later than **30 days** before trial, the parties must give detailed information about their trial evidence, including identity of witnesses who will testify live or by deposition and documents, ESI, and other things that they intent to introduce at trial.

Answer 63

In a deposition, a person gives live testimony in response to questions by counsel or pro se parties. The questions are usually oral, but can be written (if written, they are read by the court reporter). The deponent testifies under oath, and the deposition is recorded by sound or video. Both parties and nonparties may be deposed. The deponent is not required to review her records prior to the deposition; testimony is from present recollection.

Answer 64

A **party** does not need to be served w/ a subpoena. A notice of deposition is sufficient to compel her appearance. A **nonparty** must be served w/ a subpoena or else she is not compelled to attend. And unless a nonparty agrees otherwise, the farther she can be required to travel is 100 miles from where the nonparty resides or is employed. If the party noticing the deposition fails to do so and the deponent fails to show up, the noticing party may be liable for costs to the other parties.

Answer 65

Requires the deponent to bring requested material with her to the deposition.

Answer 66

When the party is suing an organization, she may notice a deposition of an organization, describing the facts that she wants to discover in the deposition. The organization then must designate a person to testify on that matter.

Answer 67

A party cannot take more than 10 depositions or depose the same person twice without court approval or stipulation. Depositions cannot exceed one day of seven hours unless the court orders or parties stipulate otherwise.

Answer 68

Subject to the rules of evidence, depositions may be used at trial to: (1) Impeach the Deponent; (2) For any purpose if the Deponent is an adverse party; or (3) For any purpose if the Deponent, whether or not a party, is unavailable for trial (i.e. illness, out of the country, imprisonment) - unless that absence was procured by the party seeking to introduce the evidence.

Answer 69

Interrogatories are written questions to be answered in writing under oath. (1) Interrogatories are sent only to parties, never to nonparties; (2) Maximum number, absent court order or stipulation, is 25, including subparts; (3) Interrogatories are to be answered within **30 days** from their service; (4) A party must answer interrogatories based upon information reasonably available; (5) If the answers to the interrogatories can be found in business records and the burden of finding the answer would be about the same for either party, the responding party can allow the requesting party to have access to the records; (6) Contention interrogatories, that is, interrogatories that inquire about legal contentions, are permitted.

Answer 70

Asks a party to make available for review and copying documents or things, including ESI or to permit entry on designated property to inspect, measure, etc. ESI must be produced in the form that the requesting party specifies, but the responding party may object. Disclosing party must respond to the request in writing within **30 days** of service, stating that the material will be produced or asserting objections. Note: Only parties can be sent RFPs, but a non-party can be served with a subpoena to require her to disclose the same information.

Answer 71

A court order is required to compel a party (or person in the party's custody and control) to submit to a medical exam. The requesting party must show: (1) Person's health is in actual controversy; and (2) Good cause. Custody and control is narrow i.e. an employee is not in custody or legal control of an employer, but a child is in custody and legal control of a her parent. The requesting party chooses the licensed medical professional to perform the exam.

Answer 72

The person undergoing the exam can get a copy of the report. If the person requests and obtains the report, she must (on request) produce all medical reports by her own doctors about the same medical condition. *She also waives any doctor-patient privilege that she may have had with her doctor regarding that condition.

Answer 73

A written request that someone admit certain matters. The responding party must respond within **30 days** of service, either denying specifically or objecting. But if the responding party states that she has made a reasonably inquiry and cannot find enough information from which to admit or deny, she can state that she doesn't know the answer. If the party fails to deny proper request, the matter is deemed admitted. RFAs are often used to authenticate documents.

Answer 74

Parties sign substantive answer to discovery under oath. Rule 11 does not apply to discovery documents. However, every discovery request and response is signed by Counsel certifying it is: (1) Warranted; (2) Not interposed for an improper purpose; and (3) Not unduly burdensome.

Answer 75

If new facts come to light after responding to discovery that make a required disclosure, interrogatory, RFP, or RFA incomplete or incorrect, the party must supplement her response to discovery. This is a self-policing obligation.

Answer 76

A party can discover anything that is relevant to a claim or defense and proportional to the needs of the case. Unlike initial disclosures, something harmful to you may be discoverable using the regular discovery tools.

Answer 77

A party can object to discovery on the basis of evidentiary privilege - i.e. confidential communications between attorney and client.

Answer 78

Work product or trial preparation material which is material prepared in anticipation of litigation is protected. In federal court, work product need not be generated by a lawyer. It can be prepared by the party herself or by any representatives of a party (i.e. private investigator). Note --> **Work product protects does NOT protect the underlying facts in the document itself**. Thus, regardless of whether an investigator’s report is work product, must nonetheless disclose all relevant facts regarding the accident, including the additional facts learned from investigation

Answer 79

Work product sometimes may be discovered if the requesting party can show substantial need and undue hardship in obtaining the materials in an alternative way.

Answer 80

Absolutely protected and cannot be discovered. This included Opinion Work Product, which consists of mental impressions, conclusions, opinions, or legal theories of the disclosing party and cannot be discovered.

Answer 81

Notwithstanding work product, a party has a right to demand discovery of any previous statement that she has made regarding the case.

Answer 82

If a party withholds discovery or seeks a protective order based on privilege or work products, she must claim the protection expressly and describe the materials in detail. A privilege log, that lists the materials protected by date, author, recipient, and privilege or protection claimed. Must be enough detail to allow the Judge to determine whether the material is protected.

Answer 83

Party should notify the other party promptly. The other party then must return, requester, or destroy the material pending a decision by the Court about whether there has been a waiver.

Answer 84

If the responding party thinks a discovery request subjects her to annoyance, embarrassment, undue burden or expense, she can move for a protective order. The party must certify that she tried in good faith to resolve the issue without court involvement; that is, she asked the other side to meet and confer. If the Court agrees, it can: (1) Deny Discovery; (2) Limit Discovery; or (3) Permit Discovery on specified terms.

Answer 85

If a party responds to a request but fails to answer all questions because she objects to them, she may be compelled to comply by court order.

Answer 86

If a responding party fails completely to attend her deposition, respond to interrogatories, or respond to request for production, she will be subject to various sanctions plus costs. If a party simply wrongly objects to a discovery request, it does not justify sanctions. Sanctions become available if a party objects and then the court orders the party to produce, but the party still does not produce.

Answer 87

The party seeking sanctions generally must certify that she tried in good faith to meet and confer with the other side without court involvement. Sanctions generally may be imposed only for violating a court order on discovery.

Answer 88

When a producing party responds but not fully, sanctions are a two-step process. (1) The requesting party moves for an order compelling the producing party to answer the unanswered questions, to produce the unproduced material; (2) If the producing party violates the order compelling her to answer, the court can enter merits sanctions along with costs and attorneys' fees for bringing the motion. The producing party could be held in contempt for violating a court order. (No contempt for refusal to submit a medical exam)

Answer 89

The Court can enter merits sanction plus costs. No need to get an order compelling answers.

Answer 90

A Judge is free to choose among the following as merits sanctions: (1) Establishment order (establishes facts as true); (2) Strike pleadings of the disobedient party (as to issues re the discovery); (3) Disallow evidence form the disobedient party (as to issues re the discovery); (4) Dismiss Plaintiff's case (if bad faith shown); (5) Enter Default Judgment against Defendant (if bad faith shown)

Answer 91

When litigation is reasonably anticipated, parties must **preserve** discoverable information. ESI has some special rules. If ESI is truly lost - it cannot be recovered or restored and it is lost because the party in control of it failed to take reasonable steps to preserve it and acted w/ intent to deprive the other party of the ESI. The Court may order measures to cure the harm caused to the party. (1) Court can enter an adverse inference order; that is, tell the jury that it must presume that the lost information would be unfavorable to the party that lost the ESI; (2) Enter merits sanctions; **or** (3) Enter a default against the Defendant when her conduct was in bad faith.

Answer 92

Court order to: (1) Do something; **or** (2) Refrain from doing something. Courts are nervous about granting injunctions because the merits of the underlying dispute have not been decided.

Answer 93

A TRO is issued to preserve the status quo until a hearing for a preliminary injunction can be held. A TRO may be issued "ex parte," which means that a court has done something **without** giving notice to the other party. The court will issue a TRO ex parte only if: (1) The applicant files a paper **under** **oath** clearly showing that if the TRO is not issued, she will suffer immediate **and** irreparable harm if she must wait until the other side is heard; **and** (2) The applicant's lawyer certifies in writing her efforts to give **oral** or **written** notice to the Defendant or the Defendant's lawyer (or why such notice should not be required in the case). If the court issues the TRO, the applicant must post a bond to cover the other side's costs and damages if it turns out the restraint is wrongful. The order must be served on the Defendant as soon as possible. A ruling granting or denying a TRO ordinarily may **not** immediately be appealed.

Answer 94

An order that maintains the status quo until trial is a preliminary injunction. Before getting a preliminary injunction, to maintain the status quo until the hearing on the preliminary injunction, you may seek a TRO.

Answer 95

A TRO must state its: (1) Terms **specifically**; (2) Describe in **detail** what the Defendant must do (or refrain from doing); (3) State why it was issued; **and** (4) State why the threatened injury to the Plaintiff was irreparable.

Answer 96

A TRO is effective for no more than **14 days**, but the restrained party may move to dissolve or modify it earlier. If the applicant shows good cause before expiration, it can be extended for up to another 14 days. So a TRO **cannot** extend beyond 28 days. If the court extends a TRO beyond 28 days, it may be treated as a Preliminary Injunction.

Answer 97

A preliminary injunction maintains the status quo until the court can adjudicate the underlying claim on the merits. A preliminary injunction cannot be issued ex parte. The burden is on the applicant to show: (1) She is likely to suffer **irreparable** **harm** if the injunction is not issued; (2) She is likely to **win** **on** **the** **merits** on the underlying case; (3) The **balance** **of** **hardship** **favors** her; **and** (4) The injunction is in the **public** **interest**. There is no right to an injunction. The matter is in the court's discretion.

Answer 98

(1) Applicant must post a **bond**; (2) Must state its terms in **specificity**, describe in detail what the Defendant must do or refrain from doing; (3) State why it was **issued**; **and** (4) In granting or denying preliminary injunction, the Court must make specific finding of fact **and** separate conclusion of law.

Answer 99

An order granting or denying a preliminary injunction may be appealed as of right.

Answer 100

P may withdraw the case without the Court order **before** the Defendant serves an answer or motion for summary judgment. The parties may also stipulate to a voluntary dismissal without court order. (i.e. if the case is settled, a stipulated dismissal will be filed).

Answer 101

After Defendant has served an answer or motion for summary judgment, court permission is required absent stipulation. If the Plaintiff wants to withdraw the case, she can make a motion for voluntary dismissal, which the court has discretion to grant. (1) P makes motion for voluntary dismissal (2) Court's discretion to grant or deny; (3) First voluntary is without prejudice (P can refile the case); (4) Second voluntary dismissal extinguishes claim (P cannot refile the case).

Answer 102

A default is a notation by the court clerk on the docket sheet in the case. (1) Plaintiff may seek Defendant's default if D doesn't respond to the complaint within: (a) **21** **days** after service of process; (b) **60** **days** if process waived. (2) Default does not occur automatically; (3) Plaintiff must move for entry of default and demonstrate that the Defendant failed to respond in time; and (4) Until a default is actually entered, D can respond by motion or answer even beyond the 21 days.

Answer 103

The entry of default cuts off the Defendant's right to respond. Entry of default, however, does not automatically entitle the Plaintiff to relief. The Plaintiff must seek a default judgment.

Answer 104

The clerk of the court can enter a default judgment if: (1) Defendant has made no response at all (that is, she has not appeared); (2) Claim itself is for a sum certain in money; (3) Plaintiff gives affidavit (sworn statement) of the sum owed; **and** (4) Defendant is not a minor or incompetent. If any of the above is NOT true i.e. Defendant made an appearance, then the clerk can no longer enter the judgement. Only the Judge can enter the judgment and Defendant must be notified of the request for a default judgment by first-class mail at least 7 days before the hearing on the application for a default judgment.

Answer 105

The Judge will hold a hearing and has discretion whether to enter the judgment. The Defendant is entitled to notice of the hearing if she has appeared in some fashion in the case. Unlike at trial, the Plaintiff's recovery in a hearing for a default judgment is limited to what is pleaded in the complaint.

Answer 106

Defendant may move to have the court set aside a default or default judgment by showing: (1) Good cause (i.e. excusable neglect); **and** (2) A viable defense. Generally speaking, a trial on the merits of the case is preferred.

Answer 107

Another method to dismiss a case before going to trial. A motion to dismiss for failure to state a claim tests whether the case belongs in the litigation stream at all. If the Plaintiff's complaint fails to state a claim, the case can be dismissed. The same motion, if made after the Defendant has answered, has a different name - a motion for judgment on the pleadings.

Answer 108

In ruling on this motion, the court looks at: (1) Plaintiff's allegations of fact on the fact of the complaint; and (2) Asks "if these facts are true, do they state a **plausible** **claim**?" If the answer is no - Plaintiff has not stated a plausible claim - there is no sense letting the case proceed, because the law does not recognize a claim on these facts. Judge uses her experience and common sense to see if the facts state a plausible claim. Judge might allow the Plaintiff to amend the complaint to try to state (plead) a claim.

Answer 109

A motion for summary judgment is used after the case has been filed and the Plaintiff has survived a Rule 12 motions. Summary judgment weeds out cases in which no trial is necessary. The only reason to have trial is to resolve a dispute of material fact.

Answer 110

The party moving for summary judgment must show that: (1) There is no genuine dispute on a material fact; **and** (2) She is entitled to judgment as a matter of law. If the standard is met, the Court is not always required to grant the motion. There may be some discretion to deny the motion (measured by an "abuse of discretion" standard of appeal)

Answer 111

Any party can move for summary judgment no later than 30 days after close of discovery. Then motion can be for "partial" judgment - I.e. as to liability and the case can go to trial on damages. Partial summary judgment is sometimes called summary adjudication.

Answer 112

The Court can look at evidence. The court views that evidence in the light most favorable to the **nonmoving** **party**. The parties proffer the evidence, usually: (1) Affidavits; (2) Declarations; (3) Deposition testimony; or (4) Interrogatory ---- (5) Verified pleadings (usually pleadings are not under oath and so are not considered evidence, unless it is verified) These are considered evidence because they are under oath. Judge does **not** assess credibility in a summary judgment motion. I.e. So even if testimony is from an unreliable person, creating a dispute of material fact, summary judgment is denied and must proceed trial. However, if an authenticated videotape discredits a Plaintiff's witness's version of the facts. The Court can ignore the Plaintiff's evidence and grant summary judgment for Defendant.

Answer 113

If the party opposing summary judgment needs more time to find evidence to oppose the motion, she may file an **affidavit** or **declaration** w/ the Court stating what the evidence would be. The Court **may** allow more time for the party to obtain evidence.

Answer 114

Unless the Court order says otherwise, at least 21 days before the court's scheduling order, the parties "meet and confer" to discuss: (1) Production of required initial disclosures; (2) Claims; (3) Defenses; (4) Settlement; and (5) Preservation of discoverable information. They must present to the Court a detailed **discovery** **plan** no later than **14** **days** after the Rule 26(f) conference. *The plan must include: (1) Views and proposals on timing; (2) Issues about discovery of ESI, including how it will be produced and any problems retrieving it (i.e. deleted files).

Answer 115

Scheduling order is a roadmap for how the litigation proceeds up to trial. Unless local rule or Court order says otherwise, the Court enters an order setting cut-offs for joinder, amendment, motions, completion of discovery, etc.

Answer 116

The Court **may** hold pretrial conferences to oversee the case.

Answer 117

The final pretrial conference determines the issues to be tried and evidence to be proffered at trial. This is recorded in the pretrial conference order, which supersedes the pleadings. This order is a roadmap of issued to be tried evidence to be presented at trial, witnesses, etc., so that there are no surprises at trial.

Answer 118

To receive a jury trial a party must file a written demand and serve it on all the parties within 14 days after the last pleading directed to the jury-triable issue. If we have a jury, it determines the facts and returns the "verdict." If we don't have a jury, the Judge determines the facts in a bench trial. The judge also might hear a "motion in limine," which is a pretrial motion outside of the presence of the jury to decide whether the jury should hear certain evidence.

Answer 119

The Seventh Amendment preserves the right to jury in "Civil actions at law", but not in suits in equity. The Seventh Amendment does not apply in State Court, only Federal Civil cases. Actions at **Law** ------> **Jury** Actions in **Equity** ------> **Judge**

Answer 120

Facts underlying damages claim will be tried to the jury. Facts relating wholly to an equity claim are tried to the Judge. Generally, the jury issues will be tried first. **Mixed** Suits ------> - Facts underlying damages tried first before Jury - Then facts relating only to equity claim are tried to Judge

Answer 121

If a fact underlies both a claim for legal and equitable claims in the same proceeding must be tried by a jury when a jury has been timely and properly requested. i.e. Whether the Defendant trespassed on the Plaintiff's property.

Answer 122

A party must demand the jury: (1) In writing; (2) No later than **14** **days** after service of the last pleading addressing a jury triable issue; (3) If a party fails to do so, she waives the right to a jury. The last pleading addressing a jury issue is usually the answer.

Answer 123

In the jury selection process ("voir dire"), each side might ask the Court to strike potential jurors. There are two (2) kinds of challenges to jurors: (1) For Cause Challenges; and (2) Peremptory Challenges.

Answer 124

A juror may be challenged "for cause," for example, because the potential juror will not be impartial. Parties have an **unlimited** number of challenges for cause.

Answer 125

There are challenges for which the party states no reason. Generally, each side is limited to **three** **(3)** peremptory challenges. Importantly, peremptory challenges may be used only in a race-and-gender-neutral manner because jury selection is a state action even in a civil action between private parties.

Answer 126

A minimum of six (6) jurors, and a maximum of twelve (12), unless the parties agree otherwise. Generally, all jurors participate in the verdict unless a juror is excused for good cause, and the verdict must be unanimous unless the parties agree otherwise.

Answer 127

The jury decides facts, but is instructed on the law by the Judge. Parties submit proposed jury instruction to the Judge. They do this at the close of all evidence (or earlier if the Court says so).

Answer 128

The Judge may hold an "off the record" conference w/ the parties to discuss proposed jury instructions. Before final argument and instruction, and on the record, the Court informs the parties of: (1) What instructions it will give; **and** (2) What proposed jury instructions it rejected. The parties must be allowed to object on the record and out of the jury's hearing. This is true even if the party objected during the "off the record" conference. If objections are **NOT** made before the jury is "charged" (given the instructions), the objection is **waived**. A court can revisit that jury instruction only for clear error that affected a party's rights.

Answer 129

The Judge determines what verdict from the jury will use. (1) **General** **Verdict** - Just says who wins and, if Plaintiff wins, what the relief is -- Judges cannot do this b/c need to make specific findings and state conclusions in support of the judgment (2) **Special** **Verdict** - Jury answers, in writing, specific written questions about the facts in dispute, but it does not say who wins or loses; (3) **General** **Verdict** **w/** **Written** **Q's** - The jury not only gives a general verdict, but it also answers specific questions submitted to it. The questions ensure that the jury focused on the important issues.

Answer 130

If the jury returns a general verdict, the **clerk** of the court will enter the judgment. If the jury returns a special verdict (or general verdict w/ written questions), and the answers are consistent w/ each other and w/ the verdict, the **Judge** **approves** the judgment and the clerk enters it. However, if the **answers** are **consistent** w/ each other BUT **inconsistent** w/ the **verdict**, the court may enter an appropriate judgment consistent w/ the answers (or it can tell the jury to reconsider or order a new trial). If the **answers** are **inconsistent** w/ each other and one or more is **inconsistent** w/ the general **verdict**, NO JUDGMENT may be entered. (Court may order the jury to reconsider or order a new trial).

Answer 131

In general, a verdict may be "impeached" based upon **"external"** matters. So if jurors were bribed, or based the verdict on their investigation of matters outside of Court instead of the evidence at trial, a new trial can be ordered. Non-jurors may give first-hand evidence of such things. But a verdict will not be set aside if the misconduct was **harmless** (i.e. juror chatted for a moment w/ a party about the weather - not the case)

Answer 132

When there is no jury, the Judge determines the facts at trial. The Judge must record: (1) Findings of fact orally on the record or in writing; **and** (2) Conclusions of law. A judgment also must be entered. The judgment is very short - just telling who wins and, if Plaintiff won, the relief granted.

Answer 133

If the Judge grants JMOL, the case will not go to the jury - the Judge grants the motion and enters judgment. The motion is based upon evidence presented at trial.

Answer 134

Standard for granting the motion is that: (1) Reasonable people could not disagree on the result. - Court views evidence in light most favorable to nonmoving party. (2) Motion can be made after the opposing party has been heard on the issue. *Similar to summary judgment, where there's no disputable material fact, but this comes up at trial. *JMOL may be filed at any time before submission of the case to the jury.

Answer 135

An RJMOL is the same as JMOL, but it comes up **after** **trial**. If an RJMOL is granted, the Court enters judgment for the party that lost the jury verdict. As w/ JMOL, the Court views the evidence in the light most favorable to the non-moving party.

Answer 136

RJMOL must be made within **28** **days** after entry of judgment. The party **must** have moved for JMOL at the **proper** **time** at **trial**. Failure to do so waives RJMOL. Not only that, the RJMOL motion **must** be based upon the **same** **grounds** as the JMOL motion.

Answer 137

A new trial can be granted on **any** (non-harmless) **error** that makes the Judge think there should be a **do-over**. A party must move for a new trial within **28 days** of the judgment. Some reasons a new trial may be granted are: (1) The Judge gave an erroneous jury instruction; (2) New evidence was discovered that could not have been discovered before w/ due diligence; (2) Misconduct was committed by a juror, party, or lawyer, etc.; (3) The judgement is against weight of the evidence (serious error of judgment); **and** (4) Damages are inadequate or excessive. NOTE: It's possible that a party met the standard for RJMOL (reasonable people couldn't disagree) but waived it by not moving for JMOL at trial. That party could move for new trial on the grounds that the verdict is against the weight of the evidence.

Answer 138

Ordering a new trial is less drastic than ordering RJMOL. A new trial results in starting over, so the same party may still win. An RJMOL results in taking judgment away from one party and giving it to the other. Regardless, a new trial is a lot of work. To avoid a new trial, the Court might suggest remittitur or additur. The ground for new trial on this basis is that the jury's damages figure is **excessive** or **inadequate**. The majority standard for this (including Federal) is whether the damages figure "**shocks** **the** **conscience."**

Answer 139

Remittitur is playing hardball w/ the **Plaintiff**. The Court offers the Plaintiff a choice: (1) Remit part of the damages award; **or** (2) Go through a new trial. Note - The Court cannot simply lower the figure that was set by the jury. That would violate the Seventh Amendment. So the Court must give Plaintiff the choice of accepting the lower amount or going to a new trial. Allowed in Federal and State court. **28 days since entry of judgment to file motion to reduce an allegedly excessive award** Punitive to compensatory ratio cannot exceed 9:1

Answer 140

Additur is playing hardball w/ the **Defendant**. The court offers the Defendant a choice: (1) Add to the damage award; **or** (2) Go through a new trial. Additur may be allowed in State court but NOT Federal court; it violates the Seventh Amendment. The Seventh Amendment applies ONLY in Federal court, so the states are free to recognize additur (not all states do so).

Answer 141

A Defendant can submit formal offers to settle the case up to **14 days** before trial. The benefit is that the rule contains cost-shifting provisions that apply when a Plaintiff rejects an offer to settle and doesn't do as well at trial as the offer. i.e. Defendant offers $50k, Plaintiff rejects the offer and case goes to trial. Plaintiff wins a judgment for less than $50k, Plaintiff is then liable to the Defendant for the litigation costs after the offer was made. So this puts pressure on Plaintiff.

Answer 142

After a judgment is entered, it is possible to obtain relief from it under certain circumstances. (1) Clerical Error - Any time (2) Mistake, excusable neglect - Reasonable time (never more than 1 year) (3) Fraud, misrepresentation, or misconduct by opposing party -Reasonable time (never more than 1 year) (4) Newly discovered evidence that could not have been discovered w/ due diligence for a new trial motion. The newly discovered facts must have existed at the time of trial - Reasonable time (never more than 1 year) (5) Judgment is void (i.e. the court had no SMJ) - Reasonable time (no maximum)

Answer 143

The Federal District Court has entered an order or judgment, and the losing party wants to seek review by the U.S. Court of Appeals for the appropriate circuit.

Answer 144

The losing party has a right to appeal if the Court's order is a final judgment. A final judgment is one that determines the merits of the entire case. To determine whether an order is a final judgment, ask "after making the ruling": Does the trial court have anything left to do on the merits of the case? If yes, it is **not** a final judgment but rather an **interlocutory** **order**. If the answer is **no**, the judgment is **final**. Remand orders, w/ some minor nontestable exceptions, are not reviewable on appeal.

Answer 145

If the judgment is final, the notice of appeal must be filed with: (1) The District Court; **and** (2) Within **30** **days** after entry of the judgment that is being appealed.

Answer 146

If the District Court's order is not a final judgment, it might be appealed despite the fact that the order many not be final: Orders granting, modifying, or refusing preliminary or permanent injunctions are reviewable as of right. However, this type of review does not include TROs. - But NOTE: TRO extended beyond 28 days becomes preliminary injunction, so it may be reviewable on appeal.

Answer 147

Allows appeal of a non-final order if: (1) The District Judge certifies that it involves a controlling **issue** **of** **law**; (2) As to which there is substantial ground for difference of opinion; **and** (3) The Court of Appeals agrees to hear it (at least two (2) Appellate court Judges agree to hear the appeal).

Answer 148

The Appellate Court has discretion to hear an appeal on an issue if that issue: (1) Is distinct from the merits of the case; (2) Involves an important legal question; **and** (3) Is essentially unreviewable if parties await a final judgment.

Answer 149

When more than one claim is presented in a case, or when there are multiple parties, the District Court may expressly direct entry of a final judgment as to one or more of them if it makes an express finding that there is **no** **just** **reason** **for** **delay**.

Answer 150

A court of appeals has discretion to review an order granting or denying certification of a class action. The party seeking review must do so at the Court of Appeals within **14** **days** of order. An appeal does not stay the proceedings at District Court unless the Court of Appeals or District Court says so.

Answer 151

An extraordinary writ of mandamus or prohibition is an original proceeding in the Court of Appeals to compel the District Judge to make or vacate a particular order. The writ is not a substitute for appeal. It is available ONLY if the District Court is **violating** a clear legal duty.

Answer 152

When the District Judge decides questions of **law**, the Court of Appeals uses De Novo standard; that is, **no** **deference** is given to the District Judge when reviewing the decision. Included is when a Judge gives a jury instruction that summarizes a question of law.

Answer 153

In a bench trial, when the District Judge determines questions of fact, the Court of Appeals will **affirm** **unless** the findings are **clearly** **erroneous.**

Answer 154

Findings of a fact by a jury are given great deference. In a jury trial, when the jury decides questions of fact, the Court of Appeals will **affirm** **unless** **reasonable** **people** could **not** have made that finding.

Answer 155

On discretionary matters (i.e. whether to grant a motion, transfer, allow permissive intervention) that the Judge decides, the Court of Appeals will affirm **unless** the District Court Judge **abused** **her** **discretion**. This is also a **deferential** **standard**. A Court of Appeals Judge might not agree w/ the District Court Judge's decision, but so long as what the District Court Judge did was "in the ballpark," that decision **must** be affirmed.

Answer 156

Not every error (Even an error of law) requires reversal on appeal. No reversal is required if the error is harmless; that is, it **did** **not** **affect** the outcome of the case.

Answer 157

A Claimant may sue only once to vindicate a claim. So you only get one case in which to seek recovery for all rights to relief for that claims. Claim Preclusion Requirements (3): (1) Same Claimant suing the same Defendant; (2) Valid final judgment on the merits; (3) Case 1 and Case 2 must be the same claim - Majority view: Any right to relief arising from a Transaction or Occurrence (T/O). *Minority Primary Rights View - Separate claims for personal injury and property damages Where the claimant won the earlier lawsuit, the claim is said to be MERGED into the prior judgment.

Answer 158

For a party to be bound by issue preclusion there must have been: (1) A final judgment; (2) Actually litigated and determined; (3) Issue must have been essential to the judgment; and (4) Party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action.

Answer 159

The person using preclusion was not a party to Case 1 and is the Defendant in Case 2. Federal law and most states say it's ok so long as party in Case 1 had a full chance to litigate.

Answer 160

Person asserting preclusion to support claim was not party to Case 1. Court will allow it if it is "fair" and "equitable" by applying the fairness factors.

Answer 161

In determining whether nonmutual offensive issue preclusion is fair, the court will consider whether: (1) The party to be bound had a **full** **and** **fair** **opportunity** to litigate in Case 1; (2) The party to be bound had a **strong** **incentive** to litigate Case 1; (3) The party asserting issue preclusion could have **easily** **joined** to Case 1; **and** (4) There have been **no** **inconsistent** findings on the issue.