Fill in the Blank Exam

Question 1

Personal jurisdiction requires that the defendant be _____ to the forum state’s jurisdiction, and that the defendant be ______.

Answer 1

Personal jurisdiction requires that the defendant be amenable to the forum state’s jurisdiction, and that the defendant be served with proper notice.

Question 2

Amenability to personal jurisdiction is governed by ______, subject
to the limits of the ______ of the United States Constitution.

Answer 2

Amenability to personal jurisdiction is governed by the forum state’s law, subject
to the limits of the due process clause of the United States Constitution.

Question 3

Pennoyer v. Neff described three bases for state jurisdiction over persons and things. What are they?

Answer 3

In personam: jurisdiction over the person
In rem: jurisdiction over interests in property
Quasi in rem: jurisdiction over seized property, where plaintiff’s claim is unrelated to the seized property.

Question 4

Is quasi in rem jurisdiction constitutional?

Answer 4

Quasi in remi jurisdiction is arguable unconstitutional after Shaffer v. Heitner

Question 5

Pennoyer based its jurisdictional formula on ______ over persons and property within its borders

Answer 5

Pennoyer based its jurisdictional formula on state power over persons and property within its borders

Question 6

Under Pennoyer’s in personam jurisdiction, a judgment in plaintiff’s favor…?

–would be _____ in all states
–for the ______ of damages
–may be _____ until fully collected

Answer 6

–would be binding in all states
–for the full amount of damages
–may be enforced repeated until fully collected

Question 7

Under Pennoyrer’s quasi in rem jurisdiction, a judgment in plaintiff’s favor
- entitles plaintiff to the _______
- is not a ______
- is not ______
- may not be enforced _______
- may not be enforced ________

Answer 7

• entitles plaintiff to the property attached for jurisdiction
• is not a personal judgment
• is not enforceable against any other property
• may not be enforced more than once
• may not be enforced outside the forum

Question 8

Another type of jurisdiction discussed in Pennoyer is ____, which involves the state’s authority to adjudicate such matters as divorce, adoption, citizenship and mental competence

Answer 8

Another type of jurisdiction discussed in Pennoyer is status, which involves the
state’s authority to adjudicate such matters as divorce, adoption, citizenship and
mental competence.

Question 9

_________ altered Pennoyers rule for personal jurisdiction, replacing the concept of _____ with the new standards of ______ and ______ provided by the “minimum contacts test”

Answer 9

International Shoe Co. v. Washington altered Pennoyer’s rule for personal
jurisdiction, replacing the concept of state power with the new standards of
reasonableness and fairness provided by the “minimum contacts test.”

Question 10

The current test for amenability, following International Shoes and other cases, does not require the minimum contacts test if the defendant satisfies any one of the four “traditional” bases for in personam jurisdiction. Those bases are

Answer 10

Residence in the forum state
Consent to jurisdiction
Waiver of objection to jurisdiction
Physical presence in the forum when served

Question 11

Consent to jurisdiction has two forms, ____ consent and ____ consent. ____ are an example of express consent, and _____ are an example of implied consent

Answer 11

Consent to jurisdiction has two forms, express consent and implied consent. Forum
selection clauses are an example of express consent, and non-resident motorists
statutes are an example of implied consent.

Question 12

If none of the traditional bases are present, a state may only exercise in personam jurisdiction over defendants who have minimum contacts with the state. The two categories of minimum contacts are _____ and _____

Answer 12

If none of the traditional bases are present, a state may only exercise in personam
jurisdiction over defendants who have minimum contacts with the state. The two
categories of minimum contacts are specific jurisdiction and general jurisdiction.

Question 13

______ is where the lawsuit arises from or relates to the nonresident defendant’s contacts with the forum state. ____ is where the lawsuit is unrelated to the nonresident defendant’s contacts with the forum state

Answer 13

Specific jurisdiction is where the lawsuit arises from or relates to the nonresident
defendant’s contacts with the forum state. General jurisdiction is where the lawsuit
is unrelated to the nonresident defendant’s contacts with the forum state.

Question 14

Specific jurisdiction has four contacts tests, which are that the defendant

Answer 14

a. purposefully availed itself of the benefits and protections of forum law;
b. should have foreseen that its activity would subject it to jurisdiction in the
forum state;
c. could reasonably anticipate being haled into court in the forum state;
d. placed its product in the stream of commerce and could foresee that it
would be used in the forum state.

Question 15

General jurisdiction has one contact test, which is that defendant’s contacts are so
________ as to render it ________ in the forum state.

Answer 15

General jurisdiction has one contact test, which is that defendant’s contacts are so
continuous and systematic as to render it essentially at home in the forum state.

Question 16

If the defendant has no contacts with the forum (and does not meet one of the four
traditional bases of jurisdiction), then there is ___________ over that
defendant. If, on the other hand, defendant does have specific or general contacts,
then the court must consider the ____________ test. This is a
_______ test with five factors, which are:

—______
—_____ interest in convenient and effective relief
—____________
—the _________ in furthering fundamental social policies
—the ________ in effective resolution of controversies

Answer 16

If the defendant has no contacts with the forum (and does not meet one of the four
traditional bases of jurisdiction), then there is no personal jurisdiction over that
defendant. If, on the other hand, defendant does have specific or general contacts,
then the court must consider the fair play and substantial justice test. This is a
balancing test with five factors, which are:
—burden on the defendant
—plaintiff’s interest in convenient and effective relief
—the forum state’s interest
—the shared interests of several states in furthering fundamental social policies
—the judicial system’s interest in effective resolution of controversies

Question 17

the due process requirement for notice to defendant is stated in Mullane v. Central Hanover. Notice is constitutionally sufficient if it is “__________, under all circumstances, to apprise _____ parties of the pendency of the action, and afford them an __________ and __________.”

Answer 17

The due process requirement for notice to defendant is stated in Mullane v. Central
Hanover. Notice is constitutionally sufficient if it is “reasonably calculated, under
all circumstances, to apprise interested parties of the pendency of the action, and
afford them an opportunity to appear and present objections.”

Question 18

An abbreviated version of the Mullane notice rule is that ______ requires _____ and an _______

Answer 18

An abbreviated version of the Mullane notice rule is that due process requires
notice and an opportunity to be heard.

Question 19

Which rule of the Federal Rules of Civil Procedure deals with initially notifying the defendant of the lawsuit?

Answer 19

Rule 4

Question 20

Under Fed. R. Civ. P. 4(e), in addition to service under state law, the means of
service on a competent adult are:
a. _______ to defendant;
b. leaving copies at ________ with a person of ____________;
c. serving defendant’s ________.

Answer 20

Under Fed. R. Civ. P. 4(e), in addition to service under state law, the means of
service on a competent adult are:
a. personal delivery to defendant;
b. leaving copies at defendant’s dwelling with a person of suitable age and
discretion;
c. serving defendant’s appointed agent.

Question 21

In most cases, the federal method of service on defendants outside the district is by the _______ statute of the state in which the federal court sits.

Answer 21

In most cases, the federal method of service on defendants outside the district is by
the long arm statute of the state in which the federal court sits.

Question 22

The purposes of venue rules are:
(a) _______ to defendant
(b) ________ of caseload within the forum state

Answer 22

The purposes of venue rules are:
(a) fairness to defendant
(b) geographic allocation of caseload within the forum state

Question 23

The federal statute for general venue provisions is __________.

Answer 23

The federal statute for general venue provisions is 28 U.S.C. § 1391.

Question 24

The purpose of forum non conveniens is to move_______
based on fairness and convenience.

Answer 24

The purpose of forum non conveniens is to move cases from one forum to another
based on fairness and convenience.

Question 25

Subject matter jurisdiction refers to the court’s authority to adjudicate based on the
_______ and in some cases, _________.

Answer 25

Subject matter jurisdiction refers to the court’s authority to adjudicate based on the
type of case and in some cases, the dollar amount in controversy.

Question 26

Under Article III, federal courts have subject matter jurisdiction over two primary
types of cases:
—_________
—_________

Answer 26

Under Article III, federal courts have subject matter jurisdiction over two primary
types of cases:
—federal question
—diversity of citizenship

Question 27

The statute dealing with general federal question jurisdiction is _________.
It provides that federal courts have jurisdiction over any civil action _________ of the United States.

Answer 27

The statute dealing with general federal question jurisdiction is 28 U.S.C. § 1331.
It provides that federal courts have jurisdiction over any civil action arising under
the Constitution, laws, or treaties of the United States.

Question 28

In addition to the general federal question provisions in 28 U.S.C. § 1331, there are
specific statutes on federal question jurisdiction, including actions against (name
three): ____, ____, ____, ____, ____, _____, and
________.

Answer 28

In addition to the general federal question provisions in 28 U.S.C. § 1331, there are
specific statutes on federal question jurisdiction, including actions against (name
three): foreign states, admiralty, patents, civil rights, consuls, internal revenue, and
United States as plaintiff or defendant.

Question 29

Diversity jurisdiction is covered by ______. That statute provides that federal courts have subject matter jurisdiction over claims between _______, or between ____ and _____, where the amount in controversy ______.

Answer 29

Diversity jurisdiction is covered by 28 U.S.C. §1332. That statute provides that federal courts have subject matter jurisdiction over claims between citizens of different states, or between state citizens and foreign citizens, where the amount in controversy exceeds $75,000.

Question 30

Although the Constitution requires ____ diversity, 28 § U.S.C. 1332 requires ______. That means that all plaintiffs must have different citizenship than all defendants.

Answer 30

Although the Constitution requires only partial diversity, 28 U.S.C. § 1332 requires
complete diversity. This means that all plaintiffs must have different citizenship
than all defendants.

Question 31

For diversity purposes, a corporation has two citizenships, which are:
a. _______
b. _______

Answer 31

For diversity purposes, a corporation has two citizenships, which are:
a. state of incorporation
b. principal place of business

Question 32

A corporation’s principal place of business is defined as its _____

Answer 32

A corporation’s principal place of business is defined as its nerve center

Question 33

For diversity purposes, partnerships have the citizenship of _____.

Answer 33

For diversity purposes, partnership shave the citizenship of all the partners

Question 34

Under the St. Paul Mercury test, the amount in controversy is determined by plaintiff’s _____.

Answer 34

Under the St. Paul Mercury test, the amount in controversy is determined by plaintiff’s good faith pleading

Question 35

In achieving the amount in controversy, may Plaintiff aggregate (answer “yes” or “no”):

A. all of plaintiffs claims against one defendant?
B. alternate theories of recovery for the same wromg?
C. claims of different plaintiffs?
D. claims against different defendants?

Answer 35

A. yes
B. No
C. No
D. No

Question 36

In some cases, a related claim that lacks diversity or federal question jurisdiction may be includes. This is called ________.

Answer 36

supplemental jurisdiction

Question 37

Federal courts traditionally abstain from ____, ___, and _______.

Answer 37

Federal courts traditionally abstain from family law, probate, and state criminal proceeding

Question 38

If plaintiff has filed his action in state court, and jurisdiction is proper in federal court, defendant may remove the case to federal court. This is done by filing a ________ in federal court, attaching a copy of ______ and _____ to the state court and all parties.

Answer 38

If plaintiff has filed his action in state court, and jurisdiction is proper in federal court, defendant may remove the case to federal court. This done by filing a notice of removal in federal court, attaching a copy of all state court pleadings and giving notice to the state court and all parties

Question 39

If there is a _________ defect in the removal, the case must be remanded to state court no matter when the objection is made

Answer 39

If there is a jurisdiction defect in the removal, the case must be remanded to state court no matter when the objection is made

Question 40

If there is a _____ defect in the removal, the case must be remanded to state court if a ________.

Answer 40

If there is a procedural defect in the removal, the case must be remanded to state court if a proper and timely objection is filed

Question 41

State court subject matter jurisdiction is governed by ______.

Answer 41

state law

Question 42

In state courts, subject matter jurisdiction is designated by ____ and/or _____.

Answer 42

In state courts, subject matter jurisdiction is designated by type of case and/or dollar amount.

Question 43

Federal courts have _____ jurisdiction over patent claims. Federal and state court share _______ jurisdiction over ________.

Answer 43

Federal courts have exclusive jurisdiction over patent claims, Federal and state court share concurrent jurisdiction over federal civil rights actions.

Question 44

A court has ___ jurisdiction if it is the required forum at the beginning of the case, A court has ______ jurisdiction if it may adjudicate a case only after it has been heard in a lower court

Answer 44

A court has original jurisdiction if it is required forum at the beginning of the case. A court has appellate jurisdiction over appeals from Texas state agency decisions.

Question 45

A federal district (trial) court has _____ jurisdiction over appeals from federal administrative agency decisions.

Answer 45

A federal district (trial) court has appellate jurisdiction over appeals from federal administrative agency decisions

Question 46

Under Pennoyers in rem jurisdiction, a judgment in favor of plaintiff
- affects ______ in res (both parties and nonparties to the lawsuit)
- does not result in a ______
- does not require ________ outside the forum

Answer 46

Under Pennoyers in rem jurisdiction, a judgment in favor of plaintiff
- affects everyone’s interests in a res
- does not result in a money judgment
- does not require enforcement outside the forum

Question 47

In most cases, the federal method of service on defendants outside the district is by the ____ statute of the state in which the federal court sits

Answer 47

In most cases, the federal method of service on defendants outside the district is by the long arm statute of the state in which the federal court sits.

Question 48

The Rules of Decision Act provides that “the _____, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as ______ in civl actions in the courts of the United States, in cases where they apply.”

Answer 48

The Rules of Decision Act provides that “the laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.”

Question 49

____ interpreted the Rules of Decision Act to require federal courts to apply the ______ in cases where state law applied

Answer 49

Swift v. Tyson interpreted the Rules of Decision Act to require federal courts to apply the general American common law in cases where state law applied.

Question 50

Erie Railroad Co. v. Tompkins reversed Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply _________________.

Answer 50

Erie Railroad Co. v. Tompkins reversed Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply the law of the state in which that federal court sits.

Question 51

__________ coined the “______________,” which provides that the _____ Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.

Answer 51

Guaranty Trust v. York coined the “outcome determinative test,” which provides that the Erie Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.

Question 52

_________ modified the _________, holding that the court should __________ in the case to determine which interests were stronger. _____ further held that one factor of the balancing test is whether the state law in question is ___________ outcome determinative. Thus, Byrd gives more importance to ______ that absolutely change the outcome of the case.

Answer 52

Byrd v. Blue Ridge modified the outcome determinative test, holding that the court should balance state and federal interests in the case to determine which interests were stronger. Byrd further held that one factor of the balancing test is whether the state law in question is absolutely or definitively outcome determinative. Thus, Byrd gives more importance to state laws that absolutely change the outcome of the case.

Question 53

To determine the content of state law in federal court, the Erie Doctrine directs that the court give binding authority to state statutes and decisions from the state’s_______. Persuasive (but not binding) authority is found in lower state _______ and ________. Erie also allows courts to make an ______ as to state law.

Answer 53

To determine the content of state law in federal court, the Erie Doctrine directs that the court give binding authority to state statutes and decisions from the state’s highest court. Persuasive (but not binding) authority is found in lower state appellate courts and federal court opinions on state law. Erie also allows courts to make an educated guess as to state law.

Question 54

The Rules Enabling Act (28 U.S.C. § 2072) provides the United States Supreme Court may enact the __________, provided that no rule may _________ any substantive right.

Answer 54

The Rules Enabling Act (28 U.S.C. § 2072) provides the United States Supreme Court may enact the Federal Rules of Civil Procedure, provided that no rule may abridge, enlarge or modify any substantive right.

Question 55

The most prominent Rules Enabling case is _________, which resolves the conflict between the Rules Enabling Act and the ________.

Answer 55

The most prominent Rules Enabling case is Hanna v. Plumer, which resolves the conflict between the Rules Enabling Act and the Erie Doctrine

Question 56

Hanna v. Plumer also introduced the concept of the “twin aims of Erie,” which are to (1) discourage ________, and (2) avoid the _______.

Answer 56

Hanna v. Plumer also introduced the concept of the “twin aims of Erie,” which are to (1) discourage forum shopping, and (2) avoid the inequitable administration of the laws.

Question 57

Choice of law is the process by which courts deter mine which ________ law will be applied in a case.

Answer 57

Choice of law is the process by which courts deter mine which state’s or nation’s law will be applied in a case.

Question 58

Choice of law rules may be _____ or ________.

Answer 58

Choice of law rules may be statutory or common law.

Question 59

One example of a common law choice of law rule is the Texas case of Duncan v. Cessna, which holds that Texas courts will use the “___________” to choose the governing law. This rule applies except where there is a _________, or where the action is based on contract that contains a __________.

Answer 59

One example of a common law choice of law rule is the Texas case of Duncan v. Cessna, which holds that Texas courts will use the “most significant relationship test” to choose the governing law. This rule applies except where there is a statutory choice of law rule, or where the action is based on contract that contains a valid choice of law clause.

Question 60

In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules of _________.

Answer 60

In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules of the state in which the federal court sits.

Question 61

In federal court, Plaintiff’s initial pleading is called a _____ It must contain:

a. an allegation of _______

b. a short and plain _______ showing that the pleader is ______

c. a demand for the _______

Answer 61

In federal court, Plaintiff’s initial pleading is called a complaint. It must contain:

a. an allegation of subject matter jurisdiction

b. a short and plain statement of the claim showing that the pleader is entitled to relief

c. a demand for the relief sought

Question 62

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the United States Supreme Court held that a properly-stated claim must “contain sufficient ________, accepted as true, to state a claim for relief that is _______.”

Answer 62

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the United States Supreme Court held that a properly-stated claim must “contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.”

Question 63

In federal court, defendant’s answer must respond to each paragraph of plaintiff’s complaint with one of the following:

a. _____

b. _____

c. statement that defendant ______

Answer 63

In federal court, defendant’s answer must respond to each paragraph of plaintiff’s complaint with one of the following:

a. admission

b. denial

c. statement that defendant lacks sufficient knowledge to respond

Question 64

In addition to the foregoing, defendant may plead ______. If defendant fails to plead these, they are _____. Name three examples:

Answer 64

— contributory negligence
— assumption of risk
— fraud
— statute of limitations
— discharge in bankruptcy
— estoppel
— failure of consideration
— payment
— release
— res judicata
— statute of frauds

Question 65

F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a _______, and that the pleading is (1) not being presented for any ______; (2) ______ or a ______ for the extension, modification, or reversal of existing law or the establishment of new law; (3) supported by evidence, or will likely be after a reasonable opportunity for discovery. _____ must be warranted on the evidence or based on a reasonable lack of information or belief.

Answer 65

F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a reasonable inquiry, and that the pleading is (1) not being presented for any improper purpose; (2) warranted by existing law or a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) supported by evidence, or will likely be after a reasonable opportunity for discovery. Fact denials must be warranted on the evidence or based on a reasonable lack of information or belief.

Question 66

If plaintiff’s initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a _______ under F.R.C.P. 12(e). This must be filed ____ the Answer.

Answer 66

If plaintiff’s initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a Motion for More Definite Statement under F.R.C.P. 12(e). This must be filed before the Answer.

Question 67

Defendant may use a _______ under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.

Answer 67

Defendant may use a Motion to Strike under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.

Question 68

Defendant may challenge the Complaint’s legal sufficiency by a ________, under F.R.C.P. 12(b)(6).

Answer 68

Defendant may challenge the Complaint’s legal sufficiency by a Motion to Dismiss for Failure to State a Claim, under F.R.C.P. 12(b)(6).

Question 69

Defendant may challenge ________ at any time. Defendant must challenge _____ and ____ at the first opportunity or waive them.

Answer 69

Defendant may challenge subject matter jurisdiction at any time. Defendant must challenge personal jurisdiction and venue at the first opportunity or waive them.

Question 70

Two types of counterclaim are _____ and _____. A _____ counterclaim is one related to plaintiff’s claim. If it is not asserted, it is _____.

Answer 70

Two types of counterclaim are compulsory and permissive. A compulsory counterclaim is one related to plaintiff’s claim. If it is not asserted, it is waived.

Question 71

A third party claim is one brought by a defendant against a ______. It is based on ______ liability.

Answer 71

A third party claim is one brought by a defendant against a new party. It is based on derivative liability.

Question 72

Pleadings may be amended to add new _______, and new _____ or ________.

Answer 72

Pleadings may be amended to add new factual allegations, and new claims or causes of action.

Question 73

If a pleading adds a new claim that is barred by the statute of limitations, that new claim will be allowed if it is related to the original claim and if the new claim would have been timely if filed with the original claim. This is the “doctrine of ________” in Fed. R. Civ. P. 15(c).

Answer 73

If a pleading adds a new claim that is barred by the statute of limitations, that new claim will be allowed if it is related to the original claim and if the new claim would have been timely if filed with the original claim. This is the “doctrine of relation back” in Fed. R. Civ. P. 15(c).

Question 74

The doctrine of relation back also allows a plain tiff to add a new defendant after the statute of limitations has run if the _______ in Rule 15(c) is satisfied.

Answer 74

The doctrine of relation back also allows a plain tiff to add a new defendant after the statute of limitations has run if the balancing test in Rule 15(c) is satisfied.

Question 75

If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff’s __________.

Answer 75

If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff’s Motion for Trial Amendment.

Question 76

One exception to Rule 8’s notice pleading rule (“short plain statement of the claim”) is that allegations of ______ must be plead with particularity.

Answer 76

One exception to Rule 8’s notice pleading rule (“short plain statement of the claim”) is that allegations of fraud must be plead with particularity.

Question 77

F.R.C.P. 13(a) requires defendant to assert any opposing claim against plaintiff that ______________ that is the subject matter of plaintiff’s claim. This is known as a ________. If defendant fails to assert such a claim, he is barred from raising the same claim in a later lawsuit.

Answer 77

F.R.C.P. 13(a) requires defendant to assert any opposing claim against plaintiff that arises out of the transaction or occurrence that is the subject matter of plaintiff’s claim. This is known as a compulsory counterclaim. If defendant fails to assert such a claim, he is barred from raising the same claim in a later lawsuit.

Question 78

Exceptions to the requirement of asserting the claims discussed in the preceding question include:

a. where defendant ________ of plaintiff’s claims prior to filing an Answer.

b. where the counterclaim has not ____ or _____.

c. where the counterclaim requires an additional party over whom the court _______.

d. where the counterclaim is the subject of _______.

e. where plaintiff’s action is not based on ________ over defendant (i.e. an in rem action).

Answer 78

Exceptions to the requirement of asserting the claims discussed in the preceding question include:

a. where defendant wins a dismissal of plaintiff’s claims prior to filing an Answer.

b. where the counterclaim has not arisen or matured.

c. where the counterclaim requires an additional party over whom the court lacks personal jurisdiction.

d. where the counterclaim is the subject of another pending action.

e. where plaintiff’s action is not based on personal jurisdiction over defendant (i.e. an in rem action).

Question 79

Permissive claim joinder allows any party to join ______ against ______.

Answer 79

Permissive claim joinder allows any party to join unrelated claims against existing parties.

Question 80

In spite of the liberal rules for permissive joinder, all crossclaims and third party claims must be _______ the plaintiff’s claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an _____ claim .

Answer 80

In spite of the liberal rules for permissive joinder, all crossclaims and third party claims must be related to the plaintiff’s claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an unrelated claim .

Question 81

______ parties (f/k/a compulsory parties) are those who must be joined if possible. F.R.C.P. 19 addresses this issue in two parts:

a. Rule 19(a) identifies required parties, who must be joined if feasible;

b. Rule 19(b) addresses what must happen when joinder is not feasible, which is either _______ or _______.

Answer 81

Required parties (f/k/a compulsory parties) are those who must be joined if possible. F.R.C.P. 19 addresses this issue in two parts:

a. Rule 19(a) identifies required parties, who must be joined if feasible;

b. Rule 19(b) addresses what must happen when joinder is not feasible, which is either dismissal or litigation without the required party.

Question 82

F.R.C.P. 20 governs permissive joinder of parties. It permits _____ to join in one lawsuit if

a. each plaintiff asserts any right to relief arising out of the ______, or series of transactions or occurrences, AND

b. “any question of _______ common to all these persons will arise in the same action.”

Rule 20 also permits _______ plaintiffs to_______ if they meet this test.

Answer 82

F.R.C.P. 20 governs permissive joinder of parties. It permits multiple plaintiffs to join in one lawsuit if

a. each plaintiff asserts any right to relief arising out of the same transaction, occurrence, or series of transactions or occurrences, AND

b. “any question of law or fact common to all these persons will arise in the same action.”

Rule 20 also permits one or more plaintiffs to join multiple defendants if they meet this test.

Question 83

Two other requirements for naming parties to a lawsuit are:

a.

b.

Answer 83

Two other requirements for naming parties to a lawsuit are:

a. Real Party in Interest

b. Capacity

Question 84

Procedural devices for adding multiple parties include:

Answer 84

A. Impleader, or Third Party Action

b. Interpleader

c. Intervention

d. Class Action

e. Shareholders’ Derivative Suit

Question 85

Federal Rule 26(a) requires parties to _____ basic information relating to evidence they will use at trial, damages, and insurance.

Answer 85

Federal Rule 26(a) requires parties to disclose basic information relating to evidence they will use at trial, damages, and insurance.

Question 86

The scope of discovery in federal courts is “. . . any ______ matter that is
_______ and ______. . .”

Answer 86

The scope of discovery in federal courts is “. . . any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case . . .”

Question 87

The forms of discovery are:

Answer 87

—interrogatories
—requests to produce or inspect
—subpoenas duces tecum
—oral depositions
—written depositions
—physical and mental examinations
—requests for admission

Question 88

Privileges shield information from discovery, such as:

-

-

Answer 88

—attorney-client privilege
—spousal privilege
—doctor-patient privilege

—attorney work product exemption
—client investigatory exemption (in Texas state courts)

Question 89

The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are _____.

Answer 89

The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are waived.

Question 90

Devices for dismissal include:

a. ______ Dismissal

b. ____ Dismissal for failure to prose cute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense.

c. Dismissal for ________

Answer 90

Devices for dismissal include:

a. Voluntary Dismissal

b. Involuntary Dismissal for failure to prose cute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense.

c. Dismissal for Failure to State a Claim

Question 91

A Motion for Judgment on the Pleadings may be filed by _________. In deciding the motion, the court will look only to the _______ to determine if that pleading has stated a ____ or ______.

Answer 91

A Motion for Judgment on the Pleadings may be filed by either plaintiff or defendant. In deciding the motion, the court will look only to the nonmovant’s pleadings to determine if that pleading has stated a claim or defense.

Question 92

F.R.C.P. 56 provides that for summary judgment, the burden is on the movant to show that:

a. there is no ______, and

b. movant is ______.

Answer 92

F.R.C.P. 56 provides that for summary judgment, the burden is on the movant to show that:

a. there is no genuine issue of material fact, and

b. movant is entitled to judgment as a matter of law.

Question 93

One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleadings] is that a summary judgment motion may include _____.

Answer 93

One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleadings] is that a summary judgment motion may include evidence.

Question 94

For summary judgment in favor of the party not having the burden of proof at trial (usually the defendant), the movant may meet the first part of the burden (no dispute of material fact) by:

a. _________

b. ______ portions of nonmovant’s essential fact allegations (Adickes)

c. pointing to the record, after a _______, and alleging that non movant lacks sufficient evidence to support an ________ of her case, upon which nonmovant has the_______. (Celotex)

Answer 94

For summary judgment in favor of the party not having the burden of proof at trial (usually the defendant), the movant may meet the first part of the burden (no dispute of material fact) by:

	a. 	assuming all of nonmovant's fact allegations to be true

	b. 	negating portions of nonmovant's essential fact allegations (Adickes)

	c. 	pointing to the record, after a reasonable time for discovery, and alleging that non movant lacks sufficient evidence to support an essential element of her case, upon which nonmovant has the burden of proof at trial. (Celotex)

Question 95

For summary judgment in favor of the party bearing the burden of proof at trial, the movant must meet the burden of proof by _______________ of the claim or defense.

Answer 95

For summary judgment in favor of the party bearing the burden of proof at trial, the movant must meet the burden of proof by offering evidence to establish each element of the claim or defense.

Question 96

Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden shifts to nonmovant, who may defeat the motion for summary judgment by:

a.

or

b.

Answer 96

Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden shifts to nonmovant, who may defeat the motion for summary judgment by:

a. creating a fact dispute, or

b. showing that the law does not entitle movant to judgment.

Question 97

In deciding the motion for summary judgment, the court must view the evidence in the _________________________.

Answer 97

In deciding the motion for summary judgment, the court must view the evidence in the light most favorable to the nonmovant.

Question 98

To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which _________. If reasonable minds could not differ, then there is no fact dispute, and the judge may render summary judgment.

Answer 98

To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which reasonable minds could differ. If reasonable minds could not differ, then there is no fact dispute, and the judge may render summary judgment.

Question 99

Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is the same as for a motion for _____________.

Answer 99

Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is the same as for a motion for directed verdict.

Question 100

If a party lacks evidence to respond to a motion for summary judgment, that party may seek ____________ under Rule 56(f).

Answer 100

If a party lacks evidence to respond to a motion for summary judgment, that party may seek additional time under Rule 56(f).

Question 101

In federal court, the trial issues of law and fact are governed by a Pretrial Order. In state courts that do not use a ______, the issues of fact and law are governed by the ___________.

Answer 101

In federal court, the trial issues of law and fact are governed by a Pretrial Order. In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the latest pleadings.

Question 102

The process of questioning prospective jurors is called _______.

Answer 102

The process of questioning prospective jurors is called voir dire

Question 103

There are two kinds of challenges to prospective jurors:

____________ are based on the court’s ruling that reasonable cause exists to excuse that person from jury service based on a possibility of prejudice against one of the parties, or some other bias in the case.

______________ allow the parties a limited number of “strikes” to excuse prospective jurors for no stated reason.

Answer 103

There are two kinds of challenges to prospective jurors:

Challenges for cause are based on the court’s ruling that reasonable cause exists to excuse that person from jury service based on a possibility of prejudice against one of the parties, or some other bias in the case.

Peremptory challenges allow the parties a limited number of “strikes” to excuse prospective jurors for no stated reason.

Question 104

Asking the court to order all witnesses other than parties to leave the room is known as _________.

Answer 104

Asking the court to order all witnesses other than parties to leave the room is known as invoking The Rule.

Question 105

A defendant may move for the _______ if he has the burden of proof on all the remaining issues.

Answer 105

A defendant may move for the right to open and close if he has the burden of proof on all the remaining issues.

Question 106

Under the Seventh Amendment to the United States Constitution, all parties in federal court have a right to trial by jury in _________ exceeding _________ in controversy.

Answer 106

Under the Seventh Amendment to the United States Constitution, all parties in federal court have a right to trial by jury in cases at common law exceeding twenty dollars in controversy.

Question 107

In federal court, parties have no constitutional right to trial by jury in _____ cases. However, the states may grant the right to jury trial in equity cases.

Answer 107

In federal court, parties have no constitutional right to trial by jury in equity cases. However, the states may grant the right to jury trial in equity cases.

Question 108

The right to jury trial is presumed to exist under a federal statute unless that statute _______ the right.

Answer 108

The right to jury trial is presumed to exist under a federal statute unless that statute expressly excludes the right.

Question 109

If a party fails to request a jury within the time allowed by forum law, the right to jury trial is ______.

Answer 109

If a party fails to request a jury within the time allowed by forum law, the right to jury trial is waived.

Question 110

After all evidence and arguments have been presented, the judge describes the applicable law to the jury in ________. If the judge instructs the jury incorrectly on an issue of law, this is _______ even though it applies to the jury’s function.

Answer 110

After all evidence and arguments have been presented, the judge describes the applicable law to the jury in jury instructions. If the judge instructs the jury incorrectly on an issue of law, this is appealable even though it applies to the jury’s function.

Question 111

If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the__________.

Answer 111

If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the trier of law and fact.

Question 112

As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that “directed verdict” and “judgment notwithstanding the verdict” are both known as “_________________.”

Answer 112

As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that “directed verdict” and “judgment notwithstanding the verdict” are both known as “judgment as a matter of law.”

Question 113

In a jury trial, at the close of plaintiff’s evidence, defendant may move for a __________ (the old directed verdict) under Fed. R. Civ. P. 50(a). The judge may grant it if, viewing the evidence in the __________ , a reasonable jury could not find for plaintiff.

Answer 113

In a jury trial, at the close of plaintiff’s evidence, defendant may move for a judgment as a matter of law (the old directed verdict) under Fed. R. Civ. P. 50(a). The judge may grant it if, viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could not find for plaintiff.

Question 114

If the motion for judgment as a matter of law (or directed verdict) is denied, defendant presents his case. At the close of defendant’s evidence, ________ may move for judgment as a matter of law, which may be granted if a reasonable jury could only find for movant.

Answer 114

If the motion for judgment as a matter of law (or directed verdict) is denied, defendant presents his case. At the close of defendant’s evidence, plaintiff and defendant may move for judgment as a matter of law, which may be granted if a reasonable jury could only find for movant.

Question 115

After the jury has returned its verdict, the losing party may move for _________ (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within ____ days after entry of judgment. However, movant must have filed a motion for _______ during the trial as a prerequisite.

Answer 115

After the jury has returned its verdict, the losing party may move for judgment as a matter of law (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within 28 days after entry of judgment. However, movant must have filed a motion for judgment as a matter of law during the trial as a prerequisite.

Question 116

After trial, the losing party may file a Motion for New Trial within twenty-eight (28) days after entry of Judgment. The trial judge may grant a new trial on any of the following grounds:

—
—
—
—result contrary to the __________

Answer 116

After trial, the losing party may file a Motion for New Trial within twenty-eight (28) days after entry of Judgment. The trial judge may grant a new trial on any of the following grounds:

—trial error
—newly discovered evidence
—misconduct
—result contrary to the great weight of the evidence

Question 117

The Court of Appeals may reverse the trial judge’s granting of a Motion for New Trial only if there was ______to support the granting of a new trial.

Answer 117

The Court of Appeals may reverse the trial judge’s granting of a Motion for New Trial only if there was no evidence to support the granting of a new trial.

Question 118

Courts may grant a new trial, conditioned on remittitur or additur. _______ orders a new trial unless plaintiff accepts a lesser amount of damages. ______ orders a new trial unless defendant agrees to pay extra damages. Federal law prohibits _____ as a violation of the right to jury trial.

Answer 118

Courts may grant a new trial, conditioned on remittitur or additur. Remittitur orders a new trial unless plaintiff accepts a lesser amount of damages. Additur orders a new trial unless defendant agrees to pay extra damages. Federal law prohibits additur as a violation of the right to jury trial.

Question 119

A new trial may be granted for newly discovered evidence if the following conditions are met:

— the new evidence was discovered _____

— the new evidence was not discoverable by ________ prior to the first trial

—the new evidence is ___________

—the new evidence will _____________

Answer 119

A new trial may be granted for newly discovered evidence if the following conditions are met:

— the new evidence was discovered after the first trial

— the new evidence was not discoverable by reasonable diligence prior to the first trial

—the new evidence is not merely cumulative

—the new evidence will probably produce a new result

Question 120

Under F.R.C.P. 60(a), a party may correct ______ and other ________ in a judgment. Under F.R.C.P. 60(b), a party may ask for a new trial based on________________.

Answer 120

Under F.R.C.P. 60(a), a party may correct clerical mistakes and other inadvertent errors in a judgment. Under F.R.C.P. 60(b), a party may ask for a new trial based on newly discovered evidence or fraud.

Question 121

A party may also challenge a final judgment by ___________ alleging ___________________.

Answer 121

A party may also challenge a final judgment by filing a new action alleging newly discovered evidence or fraud.

Question 122

Thus there are three methods for challenging a judgment based on newly discovered evidence or fraud:

a.

b.

c.

One principle difference between these three is the___allowed for filing.

Answer 122

Thus there are three methods for challenging a judgment based on newly discovered evidence or fraud:

a. Motion for New Trial (Rule 59)

b. Motion for Relief from Judgment (Rule 60)

c. A New Lawsuit

One principle difference between these three is the time allowed for filing.

Question 123

Appellate courts primarily review ________. In order to receive appellate review, there must be a trial error that was ________ by a ________.

Answer 123

Appellate courts primarily review questions of law. In order to receive appellate review, there must be a trial error that was properly preserved by a timely objection.

Question 124

Appellant may preserve error by:

a. ______ at the time of the error,

b. stating the _____ for the objection,

c. making known to the court the ______ , and

d. obtaining a ____ on the objection.

Answer 124

Appellant may preserve error by:

a. objecting at the time of the error,

b. stating the grounds for the objection,

c. making known to the court the action desired, and

d. obtaining a ruling on the objection.

Question 125

Appellate courts may also review the jury’s decision, but only as to the _______, which is also a question of ______.

Answer 125

Appellate courts may also review the jury’s decision, but only as to the sufficiency of the evidence, which is also a question of law.

Question 126

Preclusion is the doctrine that limits the relitigation of issues and claims. The two kinds of preclusion are:

—

—

Answer 126

Preclusion is the doctrine that limits the relitigation of issues and claims. The two kinds of preclusion are:

—Claim preclusion

—Issue preclusion

Question 127

Another name for preclusion is

Answer 127

Another name for preclusion is “res judicata.”

Question 128

Claim preclusion includes the doctrines of _____ and _____.

Answer 128

Claim preclusion includes the doctrines of merger and bar.

Question 129

Merger applies to judgments for ______. It provides that a _________ judgment for plaintiff (a) prevents plaintiff from suing again, except in a collection action on the judgment, and (b) bars defendant’s defenses in an action on the judgment.’

Answer 129

Merger applies to judgments for Plaintiff. It provides that a valid and final judgment for plaintiff (a) prevents plaintiff from suing again, except in a collection action on the judgment, and (b) bars defendant’s defenses in an action on the judgment.’

Question 130

Bar applies to judgments for _______. It provides that a judgment for defendant ____________ on the same claim.

Answer 130

Bar applies to judgments for Defendant. It provides that a judgment for defendant bars another action by plaintiff on the same claim.

Question 131

The-elements of claim preclusion are:

a.

b.

c.

Answer 131

same claim

b. same parties

c. valid and final judgment

Question 132

In federal court, the trial issues of law and fact are governed by a ______. In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the ______.

Answer 132

In federal court, the trial issues of law and fact are governed by a Pretrial Order. In state courts that do not use a Pretrial Order, the issues of fact and law are governed by the latest pleadings.

Question 133

Claim preclusion does not apply to certain actions, including:

a. Dismissal on grounds of _________

b. ________

c. Where preclusion is _______

d. ______ courts (in some jurisdictions)

Answer 133

Claim preclusion does not apply to certain actions, including:

a. Dismissal on grounds of jurisdiction, venue, or party joinder

b. Nonsuit without prejudice

c. Where preclusion is denied by statute

d. Small Claims courts (in some jurisdictions)

Question 134

Issue preclusion is also known as_______.

Answer 134

Issue preclusion is also known as collateral estoppel.

Question 135

Issue preclusion does not apply to whole lawsuits, but to:

a. issues of _____
b. that were _____
c. that ended in a______

d. where determination of that issue was _____ to the judgment, and

e. where the judgment is _____

Answer 135

Issue preclusion does not apply to whole lawsuits, but to:

	a. 	issues of law or fact

	b. 	that were actually litigated

	c.  	that ended in a valid and final judgment, 

	d. 	where determination of that issue was essential to the judgment, and

	e. 	where the judgment is binding on the party being estopped

Question 136

Issue preclusion no longer requires mutuality of parties. This is also known as “offensive collateral estoppel.” It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a _____ and (b) had a _______.

Answer 136

Issue preclusion no longer requires mutuality of parties. This is also known as “offensive collateral estoppel.” It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a party and (b) had a full and fair opportunity to litigate.