Key things

Question 1

Preliminary injunction

Answer 1

Issued PRIOR to full hearing on the merits

Only upon notice to defendant and a hearing on whether injunction should be issued

Question 2

General verdict and special interrogatories

Answer 2

If the answers to interrogatories are consistent with each other but not with general verdict, court has option to approve the judgment that is consistent with the answers

BUT if answers to interrogatories conflict with each other, court cannot enter judgment and cannot approve the entry of the general verdict

If answer to general verdict and special interrogs, and jury’s answers to special interrogs are inconsistent, court cannot order entry of jury’s general verdict and must either instruct the jury to reconsider or order a new trial

Question 3

Interrogatories

Answer 3

Responding party can answer by specifying the business records from which the answer may be derived if burden of deriving the answer is substantially the same for the interrogating or responding party and the responding party provides the interrogating party with an opportunity to examine AND copy such records

Question 4

Judge unable to proceed

Answer 4

Another judge may take over so long as the successor judge certifies that they are familiar with the record and determines that the case may be completed without prejudice of the parties

Question 5

US as defendant

Answer 5

US or federal agency or employee acting within official capacity
Requires plaintiff deliver a copy of summons and complaint to
- US attorney for the district
- US AG
- Any agency or officer whose official conduct is being challenged, by registered or certified mail

Question 6

Right to jury trial

Answer 6

Party generally preserves this right by demanding a jury trial within 14 days after the last pleading is served
If action is removed from state to federal court, a party preserves this right by either
- demanding jury trial in state court before removal or
- serving jury trial demand within 14 days after filing or being served with the notice of removal

Question 7

Statutory interpleader

Answer 7

Available when multiple persons claim an interest in the same property
Special requirements for SMJ - $500+ and minimal diversity between at least 2 claimants
PJ - exists over any claimant who is served with process anywhere in the US
Venue - proper in any judicial district where any claimant residers

Question 8

Final judgment rule - TRO

Answer 8

Can immediately appeal a preliminary injunction
Can’t immediately appeal a TRO
But when TRO extended beyond 14 days, it becomes the equivalent of a preliminary injunction

Question 9

Contempt of court

Answer 9

If deponent refuses to comply with court order, court may impose sanctions
When a deponent is a non party, the motion must be filed in the federal district court where the deposition occurred!!! not necessarily where suit was brought
If deponent is a party, need to file where suit is brought

Question 10

Partnerships

Answer 10

Citizenship is based on where partners live, nothing else

Question 11

Service of process

Answer 11

Although the federal rules do not specify that service of process is permitted at the defendant’s regular place of business on a person of suitable age and discretion, the federal rules do provide that service of process may be made by following the law of the forum state for service of process

So it’s a procedural issue but federal procedural law says state law is applicable

Question 12

Sanctions

Answer 12

Rule 11 requires an attorney who is representing a client to sign every pleading, written motion, and other paper filed with the court. By presenting the paper to the court, the attorney is certifying that, among other things, the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
**“Presenting” includes not only signing, filing, and submitting the paper, but also later advocating a position presented in the pleading. Here, at the pretrial conference, the defendant’s attorney advocated the statute of limitations defense, even after he had learned that it was not supported by the evidence. Consequently, the court may impose sanctions under Rule 11 on the defendant’s attorney.

Question 13

Dismissal with prejudice

Answer 13

Final judgment on the merits precludes a party from relitigating an identical claim against the same party (res judicata) regardless of whether the actions were filed in state or federal court
Court in which judgment was entered determines which claim-preclusion rule applies: in state court means state’s law applies to second action
federal - entered in federal court means federal law applies to second action

Question 14

Multiparty Multiforum Trial Jurisdiction Act

Answer 14

When civil action arises from a single accident, where at least 75 natural persons have died in the accident at a discrete location, only one plaintiff need be diverse from defendant for fed court to have diversity jurisdiction, provided a defendant resides in a state and a substantial part of the accident took place in another state or location

Question 15

Rule 20

Answer 15

because the mother’s claim is made by a plaintiff against a party permissively joined under Rule 20, the court cannot exercise supplemental jurisdiction.

Question 16

Removal

Answer 16

Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed by the defendant to the district court for the district in which the state-court action was commenced. However, if removal is sought solely based on diversity jurisdiction, then removal is improper if any defendant is a citizen of the state in which the action was filed.

Question 17

Default judgment

Answer 17

Once a default is entered against a party, the other party may seek a default judgment. Generally, if the relief sought by a plaintiff is a sum certain or amount that can be made certain by computation, the default judgment is entered by the court clerk on the plaintiff’s request accompanied by an affidavit showing the amount due. Otherwise, the party seeking a default judgment must apply to the court. If a party has appeared personally or by a representative, the party or his representative must be served with written notice of the application at least seven days before the hearing

Question 18

Issue preclusion

Answer 18

Under the doctrine of issue preclusion, when an issue is actually litigated and is essential to the judgment of a court of competent jurisdiction, that determination is conclusive against a party to the prior proceeding in a subsequent suit based on a different claim

Question 19

Class certification

Answer 19

Under Rule 23(b)(2), a class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party. An additional claim for monetary damages may not be sought, at least where the monetary relief is not incidental to the injunctive or declaratory relief. Moreover, a claim for individualized monetary relief is not available because a claim under Rule 23(b)(2) is only available when a single, indivisible remedy would provide relief to each class member.

Question 20

Scope of discovery

Answer 20

Discovery is generally permitted with regard to any non-privileged matter relevant to any party’s claim or defense in the action. Information within the scope of discovery need not be admissible in evidence to be discoverable. The test is whether the information sought is relevant to any party’s claim or defense.

Question 21

Electronic info

Answer 21

Spoliation of evidence is the negligent or intentional destruction or significant alteration of evidence required for discovery. When litigation is reasonably anticipated, even if it has not yet been commenced, potential litigants in possession of potentially relevant evidence have a duty to preserve such evidence.

Once a duty to preserve evidence is triggered, the party in possession of the evidence must take reasonable measures to preserve it. If a party has a policy in place that results in routine operations that may destroy evidence, such as electronically stored information, that party must affirmatively act to prevent the destruction or alteration of such evidence, even if the destruction would typically occur in the regular course of business.

A party may be subject to sanctions for failing to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation.

Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery. In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.

If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s use in litigation, then the available sanctions include (i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party; (ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or (iii) an entry of a default judgment against the party.

Question 22

Forum selection clause

Answer 22

when transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect

If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching.

Question 23

Issue preclusion

Answer 23

issue preclusion to apply are that (i) the issue sought to be precluded must be the same as that involved in the prior action; (ii) the issue must have been actually litigated in the prior action; (iii) the issue must have been determined by a valid and binding final judgment; and (iv) the determination of the issue must have been essential to the prior judgment.

Question 24

Full faith and credit

Answer 24

Under the U.S. Constitution, state courts are required to give full faith and credit to valid judgments of other states. State courts are likewise required to treat federal judgments as those judgments would be treated by the federal courts

Question 25

Class action representatives

Answer 25

Rule 23(a) establishes four requirements for representative members of a class to sue or be sued on behalf of all members of the class: (i) the class must be so numerous that joinder of all members is impracticable (numerosity); (ii) there must be questions of law or fact that are common to the class (commonality); (iii) the claims or defenses of the representatives must be typical of the class (typicality); and (iv) the representatives must fairly and adequately protect the interests of the class (adequacy).

Question 26

Right to intervene

Answer 26

Under Rule 24, a nonparty has the right to intervene in an action when, upon timely motion, (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.

Question 27

TRO

Answer 27

A TRO has immediate effect and lasts no longer than 14 days unless good cause exists.

A TRO can be issued without notice to the adverse party if the moving party can show (1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and (2) the efforts made at giving notice and the reason why notice should not be required.

Question 28

Preliminary injunction

Answer 28

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to suffer irreparable harm in the absence of relief; (3) the balance of equities is in his favor; and (4) the injunction is in the best interest of the public.

Question 29

Definition of SMJ

Answer 29

Subject matter jurisdiction is a court’s competence to hear and determine cases of the general class and subject to which the proceedings in question belong.

Question 30

Definition of PJ

Answer 30

a court must be able to exercise judicial power over the persons or property involved in the cases or controversies before it

Question 31

Specific jurisdiction

Answer 31

When a cause of action arises out of or closely relates to a defendant’s contact with the forum state, jurisdiction may be warranted over that action even if that contact is the defendant’s only contact with the forum state.

Question 32

General jurisdiction

Answer 32

affiliations with the forum state are so “continuous and systematic” as to render the party essentially “at home” in the forum state.

Question 33

Affirmative defenses, failure to include

Answer 33

Generally defendant’s answer must state any avoidance or affirmative defense that the defendant has, or it is deemed waived

But in the interest of justice, can amend an answer to add an affirmative defense after discovery as long as it would not cause undue prejudice to the plaintiff

Question 34

Amending pleading

Answer 34

pleadings can and should be amended by leave of the court when justice requires it. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party.

Question 35

Motion for summary judgment

Answer 35

should be granted if the pleadings, discovery, and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law

In ruling on a motion for summary judgment, the court is to construe all evidence in the light most favorable to the non-moving party and resolve all doubts in favor of the non-moving party.

Question 36

Genuine issue of material fact

Answer 36

A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the non-moving party.

Question 37

Class action, one named plaintiff

Answer 37

named opposing parties are citizens of different states and amount in controversy for any named plaintiff’s claim exceeds $75,000
(for diversity jurisdiction)

Question 38

Domicile tricks

Answer 38

party must either be a citizen of a state or a citizen (or subject) of a foreign country. State citizenship of a party turns on whether the party is domiciled in the state

Unlike state citizenship, citizenship in a foreign country generally does not depend on domicile but on whether the individual has taken the necessary steps to become a citizen

if neither a citizen of a state nor a citizen or subject of a foreign country, then cannot be a party to an action brought in federal court on the basis of diversity

Question 39

Privileged info inadvertently produced

Answer 39

Permits producing party to promptly notify the receiving party of disclosure and provide basis for privilege claim
Receiving party must promptly return, requester, or destroy the info and copies, not use or disclose the info until the privilege claim is resolved, and take reasonable steps to retrieve info already disclosed to others

party that receives privileged info is the one to decide whether it is returned, sequestered, or destroyed while disputing privilege claim

Question 40

protective order

Answer 40

court order issued to protect a party or other person from whom discovery is sought from annoyance, embarrassment, oppression, undue burden, etc
Court will grant order if movant shows good cause for the order AND certifies that they conferred or attempted to confer in good faith with party seeking discovery to resolve the matter without court action

Question 41

Initial disclosures required

Answer 41

• contact info of anyone with relevant info
• all documents in party’s possession that party may use to support a claim or defense
• insurance agreement with company that may be liable for all or party of any judgment and
• computation of damages and materials on which it was based

must be disclosed 14 days after initial planning conference or date otherwise agreed upon

Question 42

Insufficient service of process

Answer 42

Under Rule 12(h)(1), if a party makes a pre-answer motion, the motion must raise the defense of insufficient service of process in the pre-answer motion, or the defense is waived. However, courts have generally allowed a party to amend a motion to dismiss to raise an omitted ground if the party acts promptly and before the court rules on the original motion. This is in line with the Federal Rules’ liberal policy with regard to amendments, and there would be no undue prejudice to the opposing party.

Question 43

Federal court jurisdiction assumption

Answer 43

A federal court must presume an absence of jurisdiction until it determines that the matter falls within its rightful jurisdiction

Question 44

Federal court must adjudicate

Answer 44

A federal court generally must adjudicate a suit over which it has subject-matter jurisdiction, even when a similar action is pending in a state court

However, a federal court with subject-matter jurisdiction may abstain from hearing a case or stay the matter pending adjudication of the similar state court action when an abstention doctrine applies (unsettled state law, important state issue)

Question 45

Federal question jurisdiction of state law

Answer 45

A federal district court does not have federal question jurisdiction over a cause of action arising under state law unless the court determines that the interpretation or application of state law may affect the outcome and the federal issue or interest is important enough to justify the exercise of jurisdiction

Question 46

Bad faith

Answer 46

In a diversity case on a state law claim, the federal court may properly use its inherent power to assess attorney’s fees as a sanction for a defendant’s bad-faith conduct during the litigation, even if the law of the forum state provides that attorney’s fees may not be awarded to a successful party.