Fill in the blank Final Fall 2023

Question 1

Personal jurisdiction requires that the defendant be ___________ to the forum state’s jurisdiction, and that the defendant be _________________________________.

Answer 1

amenable, served with proper notice.

Question 2

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

Answer 2

forum state’s law, due process clause.

Question 3

Pennoyer v. Neff described three bases for state jurisdiction over persons and things. They are:

a. ___________: jurisdiction over the person.
b. ___________: jurisdiction over interests in property.
c. ___________: jurisdiction over seized property, where plaintiff’s claim is unrelated to the seized property.

Answer 3

a. In personam
b. In rem
c. Quasi in rem
Note that quasi in rem is arguably unconstitutional after Shaffer v. Heitner.

Question 4

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

Answer 4

state power.

Question 5

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 5

-binding
-full amount
-enforced repeatedly

Question 6

Under Pennoyer’s in rem jurisdiction, a judgment in favor of the plaintiff:
- affects ______________________ in a res (both ___________ and ___________ to the lawsuit)
- does not result in a __________________
- does not require ___________ outside the forum

Answer 6

• everyone’s interests, parties, nonparties
• money judgment
• enforcement

Question 7

Under Pennoyer’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

• property attached for jurisdiction
• personal judgment
• enforceable against any other property
• more than once
• 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

status.

Question 9

_________________________________ altered Pennoyer’s 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, state power, reasonableness, fairness.

Question 10

The current test for amenability, following International Shoe and other cases, does not require minimum contacts test if the defendant satisfies any one of the four “traditional” bases for in personam jurisdiction. Those bases are:
- ___________ in the forum state
- ___________ to jurisdiction
- ___________ of objection to jurisdiction
- __________________ in the forum when served.

Answer 10

• Residence
• Consent
• Waiver
• Physical presence

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

express, implied, Forum selection clauses, non-resident motorists statutes.

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

specific jurisdiction, 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, General jurisdiction.

Question 14

Specific jurisdiction has four contacts tests, which are that the defendant:
a. ______________________ itself of the benefits and protections of forum law;
b. should have ___________ that its activity would subject it to jurisdiction in the forum state;
c. could ______________________ being haled into court in the forum state;
d. placed its product in the ______________________ and could foresee that it would be used in the forum state.

Answer 14

a. purposefully availed
b. foreseen
c. reasonably anticipate
d. stream of commerce

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

continuous and systematic, essentially at home.

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

no personal jurisdiction, fair play and substantial justice test, balancing
- burden on the defendant
- plaintiff’s
- the forum state’s interest
- shared interests of several states
- judicial system’s interest

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

reasonably calculated, interested, opportunity to appear, present objections

Question 18

An abbreviated version of the Mullane notice ruling is that ___________ requires ___________ and an ___________________.

Answer 18

due process, notice, 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

a. personal delivery
b. defendant’s dwelling, suitable age and discretion
c. appointed agent.

Question 21

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

Answer 21

long arm

Question 22

The purpose of venue rules are:
a. ___________ to defendant
b. ______________________ of caseload within the forum state

Answer 22

a. fairness
b. geographic allocation

Question 23

The federal statue for general venue provisions is ___________________.

Answer 23

28 U.S.C. Section 1391.

Question 24

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

Answer 24

cases from one forum to another

Question 25

Subject matter jurisdiction refers to the court authority to adjudicates based on the _________________ and in some cases, ____________________________.

Answer 25

type of case, dollar amount in controversy.

Question 26

Under Article III, federal court have subject matter jurisdiction over two primary types of cases:
- __________________
- ____________________

Answer 26

• federal question
• diversity of citizenship

Question 27

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

Answer 27

28 U.S.C. Section 1331; arising under the Constitution, laws, or treaties

Question 28

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

Answer 28

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

28 U.S.C. Section 1332, citizens of different states, state citizens, foreign citizens, exceeds $75,000.

Question 30

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

Answer 30

partial, complete

Question 31

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

Answer 31

a. state of incorporation
b. principal place of business

Question 32

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

Answer 32

nerve center

Question 33

For diversity purposes, partnerships have the citizenship of __________________.

Answer 33

all the partners

Question 34

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

Answer 34

good faith pleading

Question 35

In achieving the amount in controversy, may Plaintiff aggregates (answer “yes” or “no”):
a. all of the plaintiff’s claim against one defendant?
b. alternate theories of recovery for the same wrong?
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 included, This is called _____________________________.

Answer 36

supplemental jurisdiction

Question 37

Federal courts traditionally abstain from ___________, ___________ and _____________________.

Answer 37

family law, probate, state criminal proceedings.

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 the ___________________ in federal court, attaching a copy of ______________________________ and __________________ to the state court and all parties.

Answer 38

Notice of Removal, all state court pleadings, giving notice

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

jurisdictional

Question 40

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

Answer 40

procedural, 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

type of case, dollar amount

Question 43

Federal courts have ___________ jurisdiction over patent claims. Federal and state court share ___________ jurisdiction over ______________________.

Answer 43

exclusive, concurrent, 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

original, appellate

Question 45

A federal district court has ___________ jurisdiction over a dispute filed there and raising a federal question, and ___________ jurisdiction over appeals from Texas state agency decisions.

Answer 45

original, appellate

Question 46

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

Answer 46

appellate

Question 47

The United States Supreme Court has ___________ jurisdiction over disputes between states.

Answer 47

original

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 civil actions in the courts of the United States, in cases where they apply.”

Answer 48

laws of the several states, rules of decision

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, general American common law

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

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, outcome determinative test, Erie

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, outcome determinative test, balance state and federal interests, Byrd, absolutely or definitively, state laws

Question 53

To determine the content of state law in federal court, the Erie Doctrine directs that the court give binding authority to ______________ and _________________________________. Persuasive (but not binding) authority is found in ______________________________ and _________________________________. Erie also allows courts to make an ___________________ as to state law.

Answer 53

state statutes, decisions from the state’s highest court, lower state appellate courts, federal court opinions on state law, educated guess

Question 54

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

Answer 54

Federal Rules of Civil Procedure; abridge, enlarge, or modify

Question 55

The most prominent Rules Enabling case is ______________, which resolves the conflict between the Rues Enabling Act and the _____________.

Answer 55

Hanna v. Plumer, 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

forum shopping, inequitable administration of the laws

Question 57

Choice of law is the process by which courts determine which _________________ law will be applied in a case.

Answer 57

state’s or nation’s

Question 58

Choice of law rules may be ___________ or _______________.

Answer 58

statutory, 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 court 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

most significant relationship test, statutory choice of law clause, 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

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 ___________

Answer 61

complaint
a. subject matter jurisdiction
b. statement of the claim, entitled to relief
c. judgment

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

factual matter, 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

a. admission
b. denial
c. lacks sufficient knowledge to respond

Question 64

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

Answer 64

affirmative defenses, waived
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 establishment of new law; (3) supported by ___________, or will likely be after a reasonable opportunity for discovery. ______________ must be warranted on the evidence or based on reasonable lack of information or belief.

Answer 65

reasonable inquiry, improper cause, warranted by existing law, nonfrivolous argument, evidence, Fact denials

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

Motion for More Definite Statement, before

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

Motion to Strike

Question 68

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

Answer 68

Motion to Dismiss for Failure to State a claim

Question 69

Defendant may challenge _____________________ at any time. Defendant must challenge ___________________ and ___________ at the first opportunity or waive them.

Answer 69

subject matter jurisdiction, personal jurisdiction, venue

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

compulsory, permissive, compulsory, waived

Question 71

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

Answer 71

new party, derivative

Question 72

Pleadings may be amended to add new ___________________, and new ___________ or __________________.

Answer 72

factual allegations, claims, 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 “______________________” in Fed. R. Civ. P. 15(c).

Answer 73

doctrine of relation back

Question 74

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

Answer 74

balancing test

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

Motion of 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

fraud

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 ___________ from raising the same claim in a later lawsuit.

Answer 77

arises out of the transaction or occurrence, compulsory counterclaim, barred

Question 78

Exceptions to the requirement of asserting the claims discussed in the preceding question include:
a. where defendant _________________ of plaintiff’s claim prior to filing an Answer.
b. where the counter claim 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 ___________ action).

Answer 78

a. wins a dismissal
b. arisen, matured
c. lacks personal jurisdiction
d. another pending action
e. personal jurisdiction, in rem

Question 79

Permissive claim joinder allows any party to join ____________________ against __________________.

Answer 79

unrelated claims, existing parties

Question 80

In spite of 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

related to, unrelated

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

Answer 81

Required,
a. feasible
b. dismissal, 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, ______
b. “any question of ______________ common to all these persons will arise in the same action.”

Answer 82

multiple plaintiffs,
a. same transaction, occurrence, AND
b. law or fact

Question 83

Two other requirements for naming parties to a lawsuit are:
a. ________________________
b. ____________

Answer 83

a. Real Party in interest
b. Capacity

Question 84

Procedural devices for adding multiple parties include:
a. __________________________________
b. ____________
c. ____________
d. ____________
e. ________________________

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, damage, and insurance.

Answer 85

disclose

Question 86

The scope of discovery in federal courts is “. . . any _______________ matter that is ____________________________________ and ___________________________________ . . .”

Answer 86

nonprivileged, relevant to any party’s claim or defense, proportional to the needs of the case

Question 87

The forms of discovery are:
7

Answer 87

• Interrogatories
• Request to produce or inspect
• Subpoenas duces tecum
• Oral deposition
• Written depositions
• Physical and mental examinations
• Requests for admission

Question 88

Privileges shield information from discovery such as:
3

Answer 88

• attorney-client privilege
• spousal privilege
• doctor-patient privilege

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

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

a. Voluntary
b. Involuntary
c. Failure to State a Claim

Question 91

A Motion for Judgment of 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

either plaintiff or defendant, nonmovant’s pleading, claim, defense

Question 92

F.R.C.P. 56 provides that for summary judgment, the ____________ is on the ____________ to show that:
a. there is no ________________________, and
b. movant is __________________________________.

Answer 92

burden, movant,
a. genuine issue of material fact
b. 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

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 nonmovant lacks sufficient evidence to support an ____________________ of her case, upon which nonmovant has the ______________________. (Celotex)

Answer 94

a. assuming all of the nonmovant’s fact allegations to be true
b. negating
c. reasonable time for discovery, essential element, burden of proof at trial

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

offering evidence to establish each element

Question 96

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

Answer 96

nonmovant,
a. creating a fact dispute
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

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

reasonable minds could differ

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

directed verdict

Question 100

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

Answer 100

additional time

Question 101

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 101

Pretrial Order, latest pleadings

Question 102

The process of questioning prospective jurors is called ____________.

Answer 102

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 or 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

Challenges for cause
Peremptory challenges

Question 104

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

Answer 104

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

right to open and close

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

cases at common law, twenty dollars

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

equity

Question 108

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

Answer 108

expressly excludes

Question 109

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

Answer 109

forum law, 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 functuons.

Answer 110

jury instructions, appealable

Question 111

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

Answer 111

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

judgement 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

judgment as a matter of law, light most favorable to the 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

plaintiff and defendant

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

judgment as a matter of law, 28, judgment as a matter of law

Question 116

After trial, the losing party may file a Motion for New Trial within _________________ 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

twenty-eight (28)
- trial error
- newly discovered evidence
- misconduct
- 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

no evidence

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

Remittitur, Additur, additur

Question 119

A new trial may be granted for newly discovered evidence if the following conditions are met:
- the new evidence was discovered _________________
- the evidence was not discoverable by ________________________ prior to the first trial
- the new evidence is not ______________________
- the new evidence will ___________________________>

Answer 119

• after the first trial
• reasonable diligence
• merely cumulative
• 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

clerical mistakes, inadvertent errors, newly discovered evidence or fraud

Question 121

A party may also challenge a final judgment by ______________________ alleging ________________________ or ____________.

Answer 121

filing a new action, newly discovered evidence, fraud

Question 122

Thus there are three methods for challenging a judgment based on newly discovered evidence or fraud:
a. ____________________ (Rule 59)
b. __________________________ (Rule 60)
c. ________________
One principle difference between these three is the ______ allowed for filing.

Answer 122

a. Motion for New Trial
b. Motion for Relief from Judgment
c. A New Lawsuit
time

Question 123

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

Answer 123

question of law, properly preserved, 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

a. objecting
b. grounds
c. action desired
d. ruling

Question 125

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

Answer 125

sufficiency of the evidence, law

Question 126

____________ courts may review the trial judge’s Findings of Fact in a ______________. The standard of review is __________________.

Answer 126

Appellate, nonjury trial, clearly erroneous

Question 127

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

Answer 127

• Claim preclusion
• Issue preclusion

Question 128

Another name for preclusion is “____________.”

Answer 128

res judicata

Question 129

Claim preclusion includes the doctrines of ____________ and ________.

Answer 129

merger, bar

Question 130

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 130

Plaintiff, valid and final

Question 131

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

Answer 131

Defendant, bars another action by plaintiff

Question 132

The elements of claim preclusion are:
- ____________
- ____________
- _________________

Answer 132

• same claim
• same parties
• valid and final judgment

Question 133

Claim preclusion does not apply to certain actions, including:
a. Dismissal on grounds of ____________, ____________, or ____________
b. ________________________
c. Where preclusion is ________________________
d. ______________ courts (in some jurisdictions)

Answer 133

a. jurisdiction, venue, party joinder
b. Nonsuit without prejudice
c. denied by statute
d. Small Claims

Question 134

Issue preclusion is also known as ____________________.

Answer 134

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

a. law or fact
b. actually litigated
c. valid and final judgment
d. essential
e. binding on the party being estopped

Question 136

Issue preclusion no longer requires ______________________. 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

mutuality of parties, party, full and fair opportunity to litigate