Final Fill in the Blank

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. Theyare

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

In personam, In rem, Quasi in rem

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 in all states , full amount of damages, enforced repeatedly until fully collected

Question 6

Under Pennoyer’s in rem jurisdiction, a judgment in favor of 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 not 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 the 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 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, _______ and _______. ________ are an example of express consent, and ___________ are an example of implied consent.

Answer 11

express consent and implied consent
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 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

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

purposefully availed
foreseen
reasonably anticipate
stream of commerce

Question 15

General jurisdiction has one contact test, which is that it has ___________ with the forum state.

Answer 15

continuous and systematic contacts

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
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 rule 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, the two primary methods for service of process on a competent adult are:

a. ___________ to defendant;
b. leaving copies at ___________ with a person of ____________

Answer 20

personal delivery
defendant’s residence
suitable age and discretion.

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

long-arm

Question 22

The purposes of venue rules are:

(a) ________ to defendant
(b) __________ of caseload within the forum state

Answer 22

fairness

geographic allocation

Question 23

The federal statute for general venue provisions is __________

Answer 23

28 U.S.C. 1391.

Question 24

The purpose of forum non conveniens is to move _______________________________________

Answer 24

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

type of case

the dollar amount in controversy

Question 26

Federal courts have subject matter jurisdiction over two types of cases: ________;__________

Answer 26

—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 _______________________________

Answer 27

28 U.S.C. § 1331

case or controversy 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):

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. § 1332
citizens of different states
state citizens and foreign citizens
exceeds $75000

Question 30

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

Answer 30

partial diversity

complete

Question 31

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

a. ______________
b. ______________

Answer 31

state of incorporation

principal place of business

Question 32

For diversity purposes, partnerships have the citizenship of ______________.

Answer 32

all the partners

Question 33

The amount in controversy is determined by plaintiff’s __________________.

Answer 33

good faith pleading

Question 34

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

a. all of Plaintiff’s claims against one defendant?
b. alternate theories of recovery for the same wrong?
c. claims of different plaintiffs?
d. claims against different defendants?

Answer 34

Yes
No
No
No

Question 35

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

Answer 35

supplemental jurisdiction

Question 36

Federal courts traditionally abstain from _________, _________ and _____________.

Answer 36

family law, probate and state criminal proceedings.

Question 37

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 37

Notice of Removal
all state court pleadings
giving notice

Question 38

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

Answer 38

jurisdictional

Question 39

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

Answer 39

procedural

a proper and timely objection is filed.

Question 40

State court subject matter jurisdiction is governed by ____________.

Answer 40

state law

Question 41

In state courts, subject matter jurisdiction is designated by ___________ and/or _____________.

Answer 41

type of case

dollar amount

Question 42

In Texas, state district courts have ______________ over all claims of __________ or more in controversy.

Answer 42

general jurisdiction

$500

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 Texas state district court has _______ jurisdiction over any dispute involving $500 or more, 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

________________ 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

the law of the state in which that federal court sits.

Question 51

_________________ coined the “outcome determinative test,” 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

Erie Doctrine

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, _______ gives more importance to state laws 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
Byrd

Question 53

To determine the content of state law in federal court, the Erie Doctrine directs that the court look 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. § 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 Rules Enabling Act and the ______________.

Answer 55

Hanna v. Plumer

Erie Doctrine

Question 56

_________ v. Plumer also provides the current version of the ____ Doctrine, holding that if there is no __________________ on point, then apply the Byrd test subject to the __________.

Answer 56

Hanna
Erie
Federal Rule of Civil Procedure
twin aims of Erie

Question 57

Choice of law is the process by which courts deter mine 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 choice of law statute is Texas Civil Practice and Remedies Code § 71.031, which provides that in wrongful death actions the law of the state _____________ will govern.

Answer 59

where the death occurred

Question 60

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 60

“most significant relationship test”
statutory choice of law rule
valid choice of law clause

Question 61

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

Answer 61

the state in which the federal court sits.

Question 62

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 62

complaint
subject matter jurisdiction
statement of the claim
entitled to relief
judgment

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

admission
denial
lacks sufficient knowledge to respond

Question 64

In addition to the foregoing, defendant may plead affirmative defenses. If defendant fails to plead these, they are waived. 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 _________, 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

reasonable inquiry
improper purpose
warranted by existing law
non frivolous 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 should always challenge plaintiff’s Complaint by a _____________________, under F.R.C.P. 12(b)(6). This allows the court to test the _______________ of plaintiff’s claim.

Answer 68

Motion to Dismiss for Failure to State a Claim

legal sufficiency

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 and 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 and permissive
compulsory
waived

Question 71

A third party claim is one brought by a defendant against a ____________. It is based on ___________ liability. ___________ may also bring a third party claim in defense of a counterclaim.

Answer 71

new party
derivative
Plaintiff

Question 72

Pleadings may be amended to add new ______________, and _________ or ___________.

Answer 72

factual allegations

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 _________________ in Fed. R. Civ. P. 15(c).

Answer 73

“doctrine of relation back”

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

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 for Trial Amendment.

Question 76

One exception to the liberal federal pleading rule (“short plain statement of the claim”) is that allegations of _______ must be plead with particularity.

Answer 76

fraud

Question 77

Until recently, most state courts used code pleading, which required plaintiff to plead __________ relating to every element of his claim.

Answer 77

ultimate facts

Question 78

Many states have abandoned code pleading, replacing it with __________ pleading requirements based on the _____________________.

Answer 78

notice

Federal Rules of Civil Procedure

Question 79

Texas still requires plaintiff to plead _____________. However, it may not be necessary in each case to plead every _________.

Answer 79

causes of action

element

Question 80

Many state courts still permit a __________, with which defendant challenges the ___________ of plaintiff’s claim. This is similar to F.R.C.P. 12(b)(6) Motion to Dismiss for Failure to State a Claim. Texas does not permit a _________.

Answer 80

demurrer
legal sufficiency
demurrer

Question 81

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.

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 ______ action).

Answer 81

arises out of the transaction or occurrence
compulsory counterclaim
barred

wins a dismissal 
arisen or matured
lacks personal jurisdiction
another pending action
personal jurisdiction
in rem

Question 82

Permissive joinder allows any party to join ______________ against _______________.

Answer 82

unrelated claims against existing parties.

Question 83

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 83

related to

unrelated

Question 84

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 _______________, who must be joined if feasible;
b. Rule 19(b) addresses what must happen when _______________.

Answer 84

required parties

joiner is not feasible.

Question 85

Two other requirements for naming parties to a lawsuit are:

a. _________
b. _________

Answer 85

a. Real Party in Interest

b. Capacity

Question 86

Procedural devices for adding multiple parties include:

a. _________________
b. _________________
c. _________________
d. _________________
e. _________________

Answer 86

a. Impleader, or Third Party Action
b. Interpleader
c. Intervention
d. Class Action
e. Shareholders’ Derivative Suit

Question 87

The scope of discovery, both in Texas and federal courts, is all matters ___________ that are _________________________________________

Answer 87

“not privileged”

“reasonably calculated to lead to the discovery of admissible evidence.”

Question 88

The forms of discovery are:
 1)
2)
3)
4)
5)
6)
7)

Answer 88

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

Question 89

Privileges shield information from discovery, such as:
1)
2)
3)

Discovery exemptions have a similar effect. These include:
1)
2)

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

In addition to waiver, the privileges and exemptions may have exceptions that ______________________.

Answer 89

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

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

waived.

permit or require disclosure.

Question 90

Devices for dismissal include:

a. _________ Dismissal
b. _________ Dismissal for failure to prosecute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense.
c. Dismissal for ___________

Answer 90

Voluntary
Involuntary
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

either plaintiff or defendant
nonmovant’s pleadings
claim or 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
genuine issue of material fact
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 ________. In addition, the court is entitled to examine other evidence in the _________, such as discovery on file with the court.

Answer 93

evidence

court record

Question 94

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 ____________________, _________
b. “any question of __________ common to all these persons will arise in the same action.”

Rule 20 also permits ____________ to join ________________ if they meet this test.

Answer 94

multiple plaintiffs
same transaction, occurrence, or series of transactions or occurrences,
AND

law or fact

one or more plaintiffs
multiple defendants

Question 95

For summary judgment under Rule 56(b) (in favor of the party not having the burden of proof at trial), 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 95

assuming all of nonmovant’s fact allegations to be true

negating

reasonable time for discovery
essential element
burden of proof at trial

Question 96

For summary judgment under Rule 56(a) (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 96

offering evidence to establish each element

Question 97

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 97

nonmovant
creating a fact dispute

showing that the law does not entitle movant to judgment.

Question 98

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

Answer 98

light most favorable to the nonmovant.

Question 99

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 99

reasonable minds could differ

Question 100

Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is whether there is _____________ to withstand a motion for _____________, that is, sufficient evidence to send the case to a jury.

Answer 100

sufficient evidence

directed verdict

Question 101

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

Answer 101

additional time

Question 102

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

Answer 102

Pretrial Order

latest pleadings

Question 103

The process of questioning prospective jurors is called ___________.

Answer 103

voir dire.

Question 104

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 104

Challenges for cause

Peremptory challenges

Question 105

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

Answer 105

invoking the rule.

Question 106

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

Answer 106

right to open and close

Question 107

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

Answer 107

cases at common law

twenty dollars

Question 108

Parties have no constitutional right to trial by jury in _______ cases. However, the states may grant the right to jury trial in ________ cases.

Answer 108

equity

Question 109

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

Answer 109

expressly excludes

Question 110

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

Answer 110

forum law

waived

Question 111

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 111

jury instructions

appealable

Question 112

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

Answer 112

the trier of law and fact

Question 113

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 113

“judgment as a matter of law.”

Question 114

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 ______________________, a reasonable jury could not find for plaintiff.

Answer 114

judgment as a matter of law

in the light most favorable to the plaintiff

Question 115

The judge should ____ the motion for directed verdict if:
a. a ____________ could find in plaintiff’s favor, or
b. the judge wishes to let the case proceed and consider the question later.

Answer 115

deny

reasonable jury

Question 116

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, looking at all the evidence favorable to the _________, and only the unquestionable evidence in __________ favor, a reasonable jury could only find for movant.

Answer 116

plaintiff and defendant
nonmovant
movant’s

Question 117

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 117

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

Question 118

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:

1) _____
2) _______________
3) ______
4) result contrary to the ______________

Answer 118

twenty-eight
—trial error
—newly discovered evidence
—misconduct
---great weight of the evidence

Question 119

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 119

no evidence

Question 120

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 120

Remittitur
Additur
additur

Question 121

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 not _____________
—the new evidence will _________________

Answer 121

after the first trial
reasonable diligence
merely cumulative
probably produce a new result

Question 122

An exception to the “reasonable diligence” requirement in the prior question is that even if the new evidence was discoverable by reasonable diligence, a new trial will be granted if to do otherwise would be ___________________.

Answer 122

a grave miscarriage of justice.

Question 123

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 123

clerical mistakes
inadvertent errors
newly discovered evidence or fraud.

Question 124

A party may also challenge a final judgment by _____________ alleging ____________ or _____.

Answer 124

filing a new action
newly discovered evidence
fraud

Question 125

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 125

Motion for New Trial
Motion for Relief from Judgment
A New Lawsuit

time

Question 126

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

Answer 126

questions of law
properly preserved
timely objection

Question 127

Appellant may preserve error by objecting at the time of the error and making known to the court:

a. the __________, or _______________, and
b. the _________ therefor.

Answer 127

action desired
the objection to the action
grounds

Question 128

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

Answer 128

sufficiency of the evidence

law

Question 129

________ courts may review the trial judge’s Findings of Fact in a ________. The standard of review is __________.

Answer 129

Appellate
nonjury trial
clearly erroneous

Question 130

The four procedures for appearing before the Supreme Court are:

a. __________ 28 U.S.C. §§ 1254(1), 1257
b. __________ 28 U.S.C. § 1254(2)
c. _________________ 28 U.S.C. § 1253
d. ____________ U.S. Const., Art. III 28 U.S.C. § 1251

Answer 130

Writ of Certiorari
Certification
Direct Appeal from decisions of three judge courts
Original Jurisdiction

Question 131

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

Answer 131

—Claim preclusion

—Issue preclusion

Question 132

Another name for preclusion is __________.

Answer 132

“res judicata.”

Question 133

Claim preclusion includes the doctrines of ____ and ____.

Answer 133

merger and bar.

Question 134

Merger applies to judgments for _______. It provides that a ____________ 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 134

Plaintiff

valid and final judgment

Question 135

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

Answer 135

Defendant

bars another action by plaintiff

Question 136

The-elements of claim preclusion are:



Answer 136

a. same claim
b. same parties
c. valid and final judgment

Question 137

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 137

jurisdiction, venue, or party joinder
Nonsuit without prejudice
denied by statute
Small Claims

Question 138

Issue preclusion is also known as ________________.

Answer 138

collateral estoppel.

Question 139

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

a. issues of __________
b. that were _______________
c. that ended in ______________________,
d. where determination of that issue was ________ to the judgment, and
e. where the judgment is ___________________

Answer 139

law or fact
actually litigated
a valid and final judgment
essential
binding on the party being estopped

Question 140

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 140

mutuality of parties
party
full and fair opportunity to litigate

Question 141

The Law of the Case Doctrine is another preclusion device that prevents relitigation of the same issues within ________________ prior to final judgment.

Answer 141

the same lawsuit