MBE - Civ. Pro. Federal Flashcards
1
Q
Corporation Citizenship
A
Citizen of every state in which it is incorporated and the one state in which it has its principal place of business
2
Q
Which State law applies in diversity case?
A
law of the state where federal court hearing the case is.
Note: this state laws may require applying another state law => do not be thrown!
3
Q
P cannot invoke supplemental J (diversity only)
A
- unless multiple Ps and 1 P lack 75+ requirement
- However, for cases based solely on diversity, supplemental jurisdiction is not available for claims by the plaintiff against persons made parties under the impleader rules when use of supplemental jurisdiction would be contrary to the requirements of diversity jurisdiction.
4
Q
When does a conduct fall under the same transaction, occurrence, or conduct?
A
When upon reading the original complaint, D would get notice of the amended pleading’s allegations:
If does not relate back, won’t be allowed to amend.
5
Q
when is business entity PJ ok?
A
the entity must be subject to the court’s personal jurisdiction WITH respect to the particular civil action in question.
just saying subject to PJ is too broad
6
Q
can parties agree to venue that would not be ok otherwise?
A
Yes, this is not like waiving PJ, which is not allowed.
7
Q
What law applies if a case is transferred from improper venue?
A
if for improper grounds => new venue
if from proper venue => old venue law
8
Q
Specific jurisdiction of a corporation
A
For specific jurisdiction (i.e., jurisdiction for the instant cause of action only), it must be determined whether the state has a long arm statute authorizing jurisdiction and whether the statute is constitutional (i.e., whether the defendant has sufficient minimum contacts with the jurisdiction such that the exercise of jurisdiction over him would be fair and reasonable).
9
Q
Is there a time limit to transfer?
A
No, as long as reasonable and in the interest of justice.
careful! do not confuse this with removal OR with changing venue because improper.
10
Q
What if there is no venue where 1) all D’s reside or 2) substantial part of the claim arose?
A
The action may be brought in a judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.
11
Q
For statute of limitation purposes, when does the action commence?
A
if federal question => the moment complaint is filed
diversity cases => state rule for determining when the action is commenced applies.
12
Q
Is misjoinder ground for dismissal?
A
No, on a motion or on its own, the court may sever the claims, add or drop a party, but misjoinder in itself if not a ground for dismissal
13
Q
Is a jointly and severally liable party a necessary party for joinder?
A
No, potential D who may be jointly and severally liable is not a necessary party for joinder.
14
Q
Can court’s denial of MSJ to issue an injunction be appealed?
A
No, denial of MSJ on preliminary injunction does not make it interlocutory (which can be appealed)
15
Q
Can parties consent to transfer the case from an improper venue to another improper venue?
A
No, if the case is initially brought in a wrong venue, the court can either dismiss the case or transfer it to the right venue “for the interest of justice.
But if initially in the correct venue, judge may allow to move to a venue that all parties consented to or another proper venue.
16
Q
when ruling on directed verdict (as a matter of law), does the court interpret credibility and conflicts of evidence?
A
No, the court only decides if a reasonable jury could have bases to rule for the non-moving party.
17
Q
Attachment
A
Seizing property without court writ to secure potential judgment. This is a provisional remedy that can be granted anytime after start of the action.
18
Q
What can a court do when an indispensable party cannot be joined (no SMJ). m
A
may dismiss the case or continue without the indispensable party if “equity and good conscious” indicate that the case must continue.
19
Q
In a FQ cases, is there Erie (decide what law applies) issue?
A
No! if not a diversity, ALWAYS apply FEDERAL RULEs (no procedural/substantive analysis)
20
Q
What does the judge do when Renewed motion for judgment as a matter of law is combined with motion for new trial?
A
Rule of RNAMOL and give a conditional ruling on the new trial. Then, if the RNOMOL is reversed on appeal, an automatic new trial will start.
21
Q
Is an involuntary dismissal dismissal with prejudice?
A
Yes involuntary dismissals (failure to prosecute, failure to comply with FRCP, failure to show right to relief) are adjudications of the merits, therefore are dismissals with prejudice, which means that cannot being the same case again.
22
Q
Can ask for jury in the complaint?
A
Yes, can ask for jury in pleadings or within 14 days after the last pleading (answer).
23
Q
If you feel like you are the wrong D to get sued, can you implead the guy party and file motion to dismiss?
A
To impleading is only proper when the joining party is DERIVATIVELY liable to the D, cannot implead to substitute the D and switch Ds.
The right thing to do here is to file and answer denying the allegation.
24
Q
When can a party object to jury instructions?
A
Anytime before jury retires to consider a verdict!
25
Can a party appeal for insufficiency of evidence if failed to bring a renewed motion for directed verdict?
No, to preserve the right to appeal on insufficiency of evidence, must bring renewed motion after jury verdict.
Note: bringing directed verdict after the closing on OP's case is not enough, must be renewed.
26
Can 12(b) defenses de raised in the answer?
Sure, can be through a motion to dismiss or in the answer.
27
Can D bring a counterclaim that is completely unrelated to P's initial claim?
YES => permissive counterclaim
BUT must have an independent SMJ
28
Who can file for joinder?
Only parties, third parties who want to join a lawsuit must file for permissive intervention and there must be at least one common question.
29
which state law determines whether involuntary dismissal in diversity action has a preclusive effect?
the state where the case was dismissed determined whether dismissal was adjudication on the merits.
30
Does federal common-law have superiority over state law?
YES, even if a state law does not allow Jes Juticata, or non-mutual collateral estoppel, the issue/claim may still be precluded cuz federal common law allows it.
31
Can the court consider affidavits when ruling on motion for summary judgment ?
Yes, parties may attach affidavits to pleading, and the court will consider them if they are adequate.
32
what must an affidavit have?
AFFIDAVITS MUST HAVE
> PERSONAL KNOWLEDGE
> BE ADMISSIBLE AT TRIAL
> SHOW COMPETENCE TO TESTIFY
33
Amending pleading/relation back!
- easy to amend
- can amend without asking once within 21 days after your pleading was received.
- can ask to amend after this too, usually easily granted, not granted only if would prejudice the other party
- if filed ok with statute of limitations, want to amend and state has passed, still can amend if amendment stuff arose from the the same T/O of the original pleading.
34
Does Res Juticada bar vicarious liability claims too?
Yes, because without the initial D's liability, employer cannot be found liable.
35
In-state D rule
If a case if brought is a state court of state A, and D is a citizen of state A, cannot remove case from state court to federal court in DIVERSITY ACTION (FQ is ok).
Also, cannot remove after 1 year from filing.
36
Can a court exercise FQ jurisdiction over a state law claim?
Yes, if there is "embedded federal issue"
TEST for embedded:
1) federal issue will necessarily be raised in state case
2) fed. question will be actually disputed in state case
3) fed. issue is essential
4) allowing fed. issue will not mess state/federal balance of judicial decision making.
37
When can a new trial be granted?
1) when the verdict is against the manifest weight of evidence
2) to correct an error
3) because the jury award is inadequate or excessive.
38
Can the court look at stuff outside pleadings to decide pre-trial motions?
Yes, it can look at discovery, affidavits etc. to decide personal jurisdiction, for example.
39
what's standard of review for discretionary rulings?
Abuse of discretion - ok unless plainly wrong or without appropriate bases
40
is allowing medical examination of D a substantive or procedural question?
It is a procedural question (in diversity action, federal procedural law applies)
41
What is trying an issue by implied consent?
If a party raises evidence and issues and the OP does not object, it is viewed as a consent to litigate this new issue (does not have to fite a pleading, but can then move to amend your pleading in accordance with the implied issues)
42
How to analyze personal jurisdiction essay?
=> Traditional bases
- D consented to suit in the forum,
- D served in the forum,
- D domiciled in the forum.
=> State long arm statute
State statute says ok to hear other states cases
=> Constitutional - D has minimum contacts that would would make prosecuting D comport with traditional notions of fair play and substantial justice
1) Minimum contact - purposeful availment + foreseeability
2) Relatedness
> General => so systematic and continuous that he is essentially at home
> Specific => contact is less than systematic and continuous, but the claim arises out of the defendant's contact with the forum
3) Fairness (if specific) => Factors: convenience of the parties and witnesses, forum state's interests.
43
Can state district court hear a case if state long-arm statute prohibits it?
No, the district court puts itself is a state court position when decided PJ.
Note - even if federal law would allow PJ, a state court is free to grant less long arm power than fed. law allows.
44
exception standard for deposing non-testifying expert/getting work product
Non-testifying expert => impracticable to obtain options by other means
Access to work product => substantial need and undue hardship in obtaining it other way.
45
Interlocutory Appeals Act requirements
Court has discretion to hear appeal when
(i) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an appeal would materially advance the conclusion of the case, and
(ii) at least two appellate court judges agree to hear the appeal.
46
Interlocutory claims that can be appealed as a right
(i) an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction, note: not an MSJ for injunction),
(ii) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships,
(iii) decrees in admiralty cases that find liability but leave damages to be assessed later,
(iv) a patent infringement order where only an accounting is wanting, and
(v) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.
47
If there are multiple claims and judge enters a judgment disposing some of the claims, is that judgment appealable?
depends! it is deemed a final, appealable judgment ONLY IF the court makes an express determination that there is no just reason for delay.
48
Can summery judgment for a part of the claim be appealed?
No, MSJ is not a final judgment: UNLESS
1) it disposes of all of the parties' claims OR
2) the court expressly determines that there is no just reason for delay.
49
What standard of review does the appellate court use to review jury instruction?
If preserved with objection (party objected to instruction at trial) => abuse of discretion
If did not preserve => waived the right to appeal
(review is limited to considering whether there was a plain error in the instruction that affected substantial rights) => CHECK THIS! SCREWED UP IN THE TEST 😾
50
What standard of review does the appellate court use for
> (renewed) judgment as a matter of law
> grant of new trail
(renewed) judgment as a matter of law => de novo
grant of new trail => abuse of discretion
51
If no FQ or diversity, then one party drops and there is diversity , can the case be removed from state court to federal?
Yes if NOT more than ONE YEAR has passed since the case was commenced in state court.
52
What venue can a case be removed to?
a federal court embracing the state court
OR
Proper venue (all Ds reside or substantial part of the events occurred)
53
Can a court remove a case on its own?
NO, only D can ask for removal!
54
When does a previous claim "merge"?
Res Judicata
If case 1 P wins, can not bring the same claim again because new claim will be merged with the old one.
If case 1 D wins, claim is barred by prior judgment.
55
Collateral estoppel elements
i) there must have been a final judgment;
(ii) the issue must have been actually litigated and determined;
(iii) the issue must have been essential to the judgment; and
(iv) Either same parties or at least same D (non-mutual collateral defensive)
Non-mutual offensive maybe ok if court finds => it would be fair and equitable to allow the nonparty to do so
56
Can a P bring the same case twice?
Yes, if the first one
> was VOLUNTARILY dismissed with no prejudice
---- not ok, if involuntarily dismissed
> before D served answer
> only happened once before
57
For issue preclusion, does it have to be the same cause of action as Case 1?
No, can be a difference cause of action that has the same issue as a substantial reason for judgment.
58
Is default judgment considered judgment on the merits that would be barred by issue preclusion
NO.
59
Do you need a court order to review work product material if you fit the exception?
Yes.
60
When can you allow inspection of business records instead of answering discover questions?
when the burden of getting answers is the same for both parties.
Careful: this does not apply to production of documents discovery - can only not answer if shows undue burden or cost.
61
Does mortgage holder have a right to do something before foreclose type actions?
Yes, the mortgage holder can enter the property and stop waste on the property => mortgage holder in possession
When mortgagor abandons the property, mortgage holder can enter and administer the property to maintain its mortgage interest.
When M holder enters, it has the same duties as mortgagor - maintain in proper condition, etc.
62
Necessary v. Indispensable party joinder?
Necessary party => whose interests will be impaired if they are not joined.
=> case can continue even if can't be joined
Indispensable Party => whose interests will be PREJUDICED if they are not joined.
=> if cannot be joined, the court must dismiss the case. (messes up diversity)
63
Can you aggregate not related claims to get 75K?
Yes, can aggregate all one D claims against one P claims
64
Does an issue whether a contract violates federal law create FQ jurisdiction?
No, here the right that P is enforcing comes deem K law, nor federal law:
Note: anticipating federal defenses is not FQ
challenging fed statute that takes away right not FQ
MUST ENFORCE A FEDERAL RIGHT
65
What law applies when there is no federal procedural statute, but there is federal common law that conflicts with state law in a diversity action?
Federal common law applies if the issue is not likely to affect the outcome of the case or to create forum shopping.
note: this is like trying to determine what issue is state substantive law - if 5 clear ones do not apply (crime elements, statute of limitations, tolling statutes, choice of law, if should grant new trial) court apply a balancing test to decide to apply state or fed. law?
- would application of state law be determinative?
- state/fed. interests
- forum shopping risks
66
When it is foreseeable for manufacturer that their product will end up in state X, is that a purposeful contact that would raise PJ?
No, recuasse unilateral acts of customers do not create purposeful availment for the manufacturer even if they can foresee that their products will end up in state X.
They have to purposefully target, advertise in state X.
M sells to A, A takes to X and gets injured => no purposeful availment
M sells to A in state X through an interactive website, A get injured in state X => purposeful availment
67
When do we determine the proper venue?
at the time the action is filed
68
Is it okay to serve process under state law rules?
Yes, this is a procedural question so federal law applies, but federal law allows to serve by state law methods.
69
Must P provide notice to OP to get an injunction.
Yes, even though TRO can be grated in ex party hearing, P must provide clear and specific affidavit for why irreparable him, post a bond, and CERTIFY IN WRITING THAT OP IT NOTIFIED OR REASONABLY ATTEMPTED TO NOTIFY, BUT COULD NOT
70
Derivative liability
If I am liable, then third party is liable to me.
Is not when I say, I am not liable => can't use to change D's
71
When is the conversation between attorney and expert discoverable?
> If it relates to expert's compensation
> If deal with what facts/data is attorney providing to expert
otherwise protected under work product
72
Can you apply for sanctions if you OP refuses discovery then you put good faith effort to resolve this issue?
No, you have to ask the court to compel, and if OP refused to comply with court order, then can apply for sanctions and attorneys fees (those go together - either get both or none).
73
When can you use deposition at trial?
if deposed party is not available.
Also, if you failed to raise a curable objection before, cannot object in trial (ex: leading question in deposition is a curable objection).
74
When can P voluntarily dismiss case?
before OP files an answer or MSJ
after these, can only dismiss by
> court order
> stipulation of all parties
if there has been a counterclaim filed - can only dismiss if that counter claim can proceed
75
Does Res Judicata bar a new theory claim from same TO?
Yes, (as long as it's the same fire, e.g.).
76
Can a person sue president for violation of his Constitutional rights?
NO, private right of action when person alleges violation of his constitutional right by a federal official.
77
Can D remove the case from state court A to a federal court in state B if there is SMJ in state B and venue B is proper?
No, can remove to federal court in state A only, because it embraces where original case is pending.
78
Can P amend complaint to add a new D that would destroy diversity?
NO if there is no other ground for federal j.
79
wtf is an interpleader?
When a stakeholder bring action to decide ownership
Federal Interpleader:
1) P is concerned about facing multiple liability
2) fed. court must have FQ or subject matter j.
3) PJ over everyone
4) Venue
Statutory interpleader: (much easier to meet)
1) amount of controversy of $500 or more
2) if only 2 diverse parties, ok (do not need complete diversity)
3) national PJ
4) venue ok where ANY claimant resides
80
Will a court grant a new trial because counsel keep making improper, offensive remarks in from of the jury?
Yes, because repeated such conduct can cause manifest injustice that even jury instruction to ignore the improper remarks cannot cure. .
81
Does R11 apply to 12(b) or answers?
R11 applies to ALL papers submitted by an attorney
82
Do you ask for a more definitive statement in your answer?
No, must first move for a a more definitive statement 12(e) - this is because if the complaint is so vague that you do not understand that you are defending against, cannot write a proper answer.
83
When can P amend her complaint?
ONCE, within 21 says after D serves her first R12 response.
84
Can D amend R12 responses?
No, must get a leave by the court. Note: may be an issue if forgot to include a waive-able defense.
D CAN amend his answer, though, within 21 days after filing his answer.
85
What law do you apply to decide whether state A fed. case is barred in state B fed. court.
FEDERAL COMMON LAW - Res Juricada or Collateral Estoppel.
Note: do not confuse with Erie - decide if state/federal and which state law should apply. 🤯
86
What suctions may the court impose fro R11 violation?
- monetary damages against L (not the party herself if issei's was a legal question)
- non-monetary damages
> censuring attorney/sticking offensive stuff
> other suctions "sufficient to deter repetition of such conduct) => can include judge lecturing L and making him take a class.
87
Can D add an unrelated claim to his related cross-claim?
Yes, as long as the original cross claim raises from the same transaction or occurrence.
88
Will the defense that could have been litigated below be barred in Res Jurdicada?
No, RJ applies to claims (not defenses)
89
If failed to bring motion for judgment as a matter of law, what are the consequences?
- can't bring renewed motion
| - CAN'T RAISE QUESTION OF EVIDENTIARY SUFFICIENCY ON APPEAL
90
Is not showing up in trial a default?
No, if there has been a n answer etc. before, not showing up to trial is not a default, so there can be a trial without the part and he bill be liable for the damages proved in trial, even though he was not there to rebut.
91
Is there a 7th Am. right to jury for ejectment actions?
Yes, even though it feels like an equity action (where there is no jury), courts have said that ejectment is common law, so just remember that there is right to jury here, no logic. 🤯
92
Using state law to serve process
- state law must be constitutional => reasonably calculated to give the defendant notice of the action.
- no Eire issue here: not a substantive issue that we use state law to deal with. We apply federal procedure rule which explicitly allows using state law to serve process.
93
How does removal timeline work when there are multiple Ds?
Usually notice of removal must be filed within 30 days of receiving service.
If multiple Ds, all must going/consent the action to remove case to federal court.
If multiple Ds are served different times, and a later served D files for removal within 30 days of service, the earlier served D can join the removal even it it has been over 30 days since they were served.
94
When can stuff left of of pre-trial order be admitted?
if not admitting will cause manifest injustice (kind of a high bar)
95
Can court grant summary judgment because a party failed to respond to SJ
No, the standard for SJ is whether there is a genuine issue of material fact.
Not responding is not bases for SJ if there are material fact in dispute. Court can only look at the bases of the moving party's motion for SJ, not necessary to have the response of non-moving party's to deny.
96
a motion for judgment on the pleadings
a motion for judgment on the pleadings under Rule 12(c) can be made only after the pleadings are closed (i.e., after the defendant files its answer)
97
Amending pleading nuances
- P can amend ONCE as a matter of course WITHOUT asking the court, within 21 DAYS after receiving D's answer.
- besides, can ALWAYS ask COURT for leave to amend. These are freely granted, very easy to get. No clear time time when court must not allow amendments.
- Remember: relation back for statute of limitations: ok to amend even if statute of limitations has passes if the amendment related to the same claim - raises from the same facts alleges in original complaint.
98
what if there is a discovery request re a matter that is only relevant to the opposing party?
still discoverable - you do not have to voluntarily disclose if do not plan to support your case with it in trial, but have to discover if OP requests via discovery.
99
Corp. advertising and selling in state A, accident in state B, car bought in state C
No PJ over corp in state A even though firstly targeted and sold there, the claim did not arise from this connection.
100
Must P make clear in complaint that her contention is based on clarifying/changing law, otherwise could risk sanctions?
NO, do need to clearly state.
101
Can you move for sanction within another motion?
NO, must be a separate motion, also, notify the party first and allow 21 days to cure (safe-harbor).
102
Does supplemental jurisdiction cover impleaders?
YES YES YES 😩
103
Can affirmative defense be waived?
Yes, if not raised in the answer or in first motion will be waived.
104
Can P amend pleading to change the D?
NO,
UNLESS => P sued the wrong D, D knew about it and said nothing.
105
Do you need to notice D when clerk is entering a default JUDGMENT?
NO, only need to show
> D made no response
> claim was for certain $
> P gives sworn affidavit re how much he is owed
> D not minor/incompetent
if any not met => need judge and hearing
> must notice D of the hearing if D ever appeared (ever filed any type of motion).
> $100k max recovery.
106
Supplemental J
P cannot use to override complete diversity requirement
1) Common nucleus of operative facts
2) cannot be a P that is not diverse from D (ok if diverse but money is less, SJ would still work).
107
Can you add punitive damages to calculate the minimum $75k in a diversity SMj action?
Yes, just pay attention if there is a statute prohibiting including native damages.
Note: state laws apply here cuz Eire.
108
Can a third party D bring a claim against P?
Yes, and vice versa! if from same T/O!
Remember: third party claim is when D is shifting the liability that it will owes to P to TPD (includes indemnity and contribution, but not only). Here, you are saying I AM BEARING SOME RESPONSIBILITY, BUT 3D PARTY IS THE REASON SO I AM GONNA BRING THEM IN SO THEY CAN PAY ME SO I CAN PAY ORIGINAL D. Cannot deny liability altogether!
Note: MAY not MUST, can chose to dot his separately.
If it was original D's T/O counterclaim => MUST (compulsory)
109
Amending complaints to substitute a new D
allowed even if SOL passed IF
1) if amendment claim is same TO (relates back)
2) New D knew about this case within 90 days of filing
3) new D knew or should have known that but-for the the mistake, it would be the original D
110
Discovery scope
any non-privileged matter relevant to any party's clam or defense, as long as it can reasonably lead to admissible evidence.
Does not have to be actually admissible.
111
what individuals info do you have to provide in discovery?
=> MUST ID any individual you know of that might have discoverable info you plan to use
=> + subjects of the info if will use it to support its claim or defenses.
(even if end up not using them in trial)
(must be an initial disclosure - do not have to wait for a request)
112
work product doctrine
qualified immunity from discovery UNLESS
1) OP shows substantial need AND
2) cannot get the stuff from somewhere else without undue hardship.
113
what happens when a default is entered against the D by the court clerk?
- D loses the right to contest liability (unless set aside)
- a judgment can be entered against D by
> by clerk if D has never appeared.
> judge if ever appeared
BUT STILL HAS RIGHT TO CONTEST DAMAGES BEFORE JUDGMENT IS ENTERED AGAINST HIM (can come in and contest the damages. Note: if D does not show up for judgment hearing, can be done without him, but must be under $100k)
114
Is denying/agreeing to certify class immediately appealable?
Yes, even though it is not a final judgment.
Appeals court has a discretion to take the case.
115
remittitur
> court cannot just reduce the amount jury granted
> court must offer P to take a new trial or a lower trial
116
does a crossclaim have to raise from the same T/O?
YES!
117
When is the issue considered "not litigated" below so estoppel not apply?
> when D consented to the charge below
> when a default was entered against D
> maybe: involuntary dismissal (if state law where it was dismissed considers it not final)
118
Does a party have to initially disclose insurance policy?
YES, The defendant must disclose the existence of the insurance policy under the Federal Rules, which expressly permit discovery of insurance agreements as an initial disclosure.
There is no need to show that the discovery of insurance coverage would lead to other admissible evidence.
different from public policy exception against admitting insurance info to establish liability.
119
Do you need to meet the 75k requirement for state diversity jurisdiction?
No! this is a federal court requirement: read carefully!
120
Can a federal court apply federal common law when Eire applies?
Yes, if subject matter relates somehow to a federal issue, court can balance federal and state interests.
CAN ALSO APPLY TO DEFENSES if it is necessary to avoid significant conflicts between federal interests and state law => federal interest will preempt state law (ex: military stuff).
121
if you get a complaint and have a perfect proof that P is wrong, what can you do?
MUST file an answer first, then motion for SJ with our proof.
Note: cannot file a SJ without answering or filing a 12 motion first. if you do that, the court may consider that you failed to answer and admit complaint allegations as true. VERY CAREFUL!
122
intervention as a right
- if federal statute give that right
- nonparty may intervene if
(i) it has an interest in the property or transaction the is the subject matter of the action;
(ii) the disposition or resolution of the action may as a practical matter impair the nonparty's ability to protect its interest; and
(iii) the nonparty's interest is not adequately protected by an existing party in the action.
123
Will res judicada bar a claim for accelerated clause damages after P wins the first case for damages due?
YES.
In the situation of installment payments, the claimant is required to sue on all installments due at the time of the suit. If there is an acceleration clause, the claimant must sue for all installments.
124
when is can request physical/mental exam?
if the condition is in controversy (note: this seems like la low standard: having a history of 5 accidents + some evidence of a syndrome to hit cars is enough to create controversy).
Party seeking the exam must ask the court to order an exam and must show good cause that state is in controversy.
Note: a party may not himself put his mental/physical state in controversy. Other parties may do that.
125
claims that "arise" under federal law even when state law creates cause of action. Nuances.
If there is a federal law and state law copies the same language and passes a state law, if P sues under state law, this does not create a federal question!
State courts are free to interpret their state laws however they like.
CHECK THIS: FIND AN EXAMPLE WHERE ACTUALLY THERE IS "baked" federal" JURISDICTION.
126
where must D file a notice of removal?
at the DISTRICT COURT encompassing the state court where action was first filed.
127
is a guilty plea in this case admissible in next case where is it relevant?
The defendant's guilty plea is a statement by an opposing party and thus is admissible. Under the Federal Rules, a statement by an opposing party (commonly called an admission) is not hearsay.
Note: do not confuse this with public policy exclusion of pre-plea agreement stuff - offer to enter a plea, negotiations, etc.
128
remmitur and additure issues, what law applies in diversity jurisdiction?
Eire applies => so state law.
BUT CAREFUL!!!!
even if the state law allows the court offering a party alternative between additure or new trial, FEDERAL COURT CANNOT DO THIS! => SCOTUS SAID IT VIOLATES 7TH AMENDMENT
so still following state law, P can make a motion for a new trial because damages are inadequate => this is the only option in additur case in federal court.
129
careful with permissive joinder
> must raise from same TO, and
> have 1 question of fact or law in common
Note: if many similar breaches occur toward the same P, but all D's are unrelated => no same TO, even though same type of breach.
court will sever such cases.
130
impair v prejudice - for joinder purposes
to be indispensable, so that the court MUST dismiss => parties' joinder must destroy diversity and prejudice the party if not joined. I
in no prejudice but only impair rights if not joined, court does not have to dismiss, but can choose to based on factors.
131
motion for judgment on the pleadings 12(c)
Think of this as a motion to dismiss 12(b)(6) - only after pleadings are done (answer filed etc).
note: at the stage right after pleadings have ended, judgment on the pleadings is the most appropriate thing to file.
SJ is not appropriate here, cuz cannot show that there is NO issue of material fact just based on pleadings (some discovery and stuff must be done)
132
Can Congress pass a law to not require diversity?
No, Article III of Constitution - diversity clause requires minimum diversity - at least 1 diverse party on each side.
133
If state law allows a court to reduce damages if court thinks damages are excessive, can the court simply reduce the damages if it finds them excessive?
NO, court still must give party a choice for new trial or remitture, otherwise would violate 7th amendment right to fair jury trial.
Careful! even is the statue given does not talk about the choice, must give a choice!
Also remember, that federal court may never add to damages (state can).
134
if attorney believes there was an evidentiary error in trial,
Best option is no move for a new trial.
135
If party fails to supplement initial disclosures after hears stuff, can she then use this evidence to show issue of material fact to escape SJ?
NO! if has not disclosed, cannot use, so the court can actually grant the SJ, even if the evidence would actually create an issue of material fact.
Note, there is a significant duty to initially disclosures all witnesses, docs, insurance info tangible things that party plans to use.
and substantial duty to keep supplementing this info.
also remember, that party DOES NOT HAVE TO DISCLOSE people who have info if does not plan to use them in trial. (do not get tricked by choices where the other party does not disclose as well, this is not a defense, other party may not disclose but still compel you too if you plan to use them).
136
Is joint tortfeasor subject to joint and several liability indispensable party?
NO!!! joint tortfeasor subject to joint and several liability is not a person needed for just adjudication.
court does not have to dismiss the case if cannot join her.
137
can a person be bound by class action even if he never had notice?
YES, usually have right to opt out and court require notice, but do not have to have notice to be bound. As long as the notice was reasonably to reach reasonable amount of class people, it is ok.
138
how can bound class member later challenge the class action suit?
can bring a subsequent suit and argue inadequate representation in the first law suit (typicality requirement fails).
note: CANNOT bring a subsequent challenge and argue that there was a problem with numerousity requirement (that so many class members that separate litigation would be impracticable)
139
do states have general jurisdiction?
yes, BUT ONLY for subject matter
still need to show personal j.
140
when ruling on renewed motion for judgement as a matter of law, the court should view the evidence
in favor of non-moving party
141
is a TRO immediately appealable?
NO! only preliminary injunctions are immediately appealable.
Note that a TRO maybe construed as prelim. injunction if exceeds 14 days (can be extended once)
142
If a party moves for MSJ and attaches new stuff not discovered.
non-moving party can ask the court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery.
143
What law does a court apply to decide issue preclusion?
the law of the state that decided case #1.
144
What happens if have a case with 6 jurors and one drops
usually would result in mistrial, BUT parties may agree that it's okay. .
145
2 dismissal rule.
if dismiss the case voluntarily once - without prejudice => can bring again, but cannot if dismissed twice.
146
Can you get a new trial for wrong jury instruction even if have not preserved objection to the instruction?
Court may consider a PLAIN error in the jury instructions that has not been preserved by an objection if the error affects a substantial right.
This represents the only method to have the jury instruction reviewed.
147
are attorney's time sheets privileged? work product?
generally no
time records are not communications to or from the client and the identity of clients is often not considered to be within the privilege, the billing records of other clients may not be privileged.
Documents prepared by the lawyer for his own use in prosecuting his client's case are protected by this rule. Time records are not prepared for litigation purposes; they are not related to the substance of the client's case.
148
Can you add different D's sum to get the $75k?
NO! unless P claims that D's are jointly liable.
149
Can D still remove after 1 year has passed?
Yes, if there is some bad faith from P (not saying how much the damages are to know it it's removable)
150
extraordinary writ of mandamus or prohibition
if no final order to allow appeal, party may ask for these if can show
> irreparable harm
> beneficial interest in the outcome
151
Interlocutory Appeals Act
> district judge certifies that it's a complex issue with difference of opinion may happen
> appeals court agrees to allow appeal
152
what can a judge call a pre-trial conference for?
The Federal Rules give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement.
Moreover, this conference is to be attended by at least one of the lawyers for each side who will actually be conducting the trial, and by any unrepresented parties.
A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference.
Additionally, the court must require the disobedient party or counsel to pay expenses incurred (including attorneys' fees) by other parties unless the court finds that circumstances make such an award unjust
153
if havelegal claims around an equitable claim
generally allow separate jury trial
Supreme Court has demonstrated a clear preference for jury trials in doubtful cases and has held that, if damages are claimed as part of an action seeking an injunction, the defendant cannot be denied a jury on the damages issues on the ground that they are "incidental" to the equitable relief.
154
final judgement of the merits for res juricada
includes
| > cases dismissed with prejudice => includes dismissal for lack for prosecution (so is blocked and cannot bring again)
155
non-mutual collateral estoppel
P can use of it's fair | D can always use!!!!!!
In fact, although courts have been very reluctant to permit P to obtain relief, the Supreme Court has upheld its use offensively by a nonparty where it was fair and equitable to do so.
156
motion to set aside judgement
UP TO 1 YEAR
(i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial;
(iii) fraud, misrepresentation, or other misconduct of an adverse party;
ANY REASONABLE TIME
(iv) the judgment is void;
(v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or
(vi) any other reason justifying relief from the operation of the judgment.
157
A collateral attack against a default judgment
A collateral attack is the name used to describe a defendant's ability to challenge a default judgment where the defendant never appeared in the action at all. . includes improper service.
Default judgments that are either constitutionally or procedurally defective are subject to collateral attacks.
158
if a person packs to move from state A, and never makes it to state B, what is his domicile?
Still state A, until he gets to state B.
It remains his domicile until he acquires a new one by being physically present in a new place while intending to make that new place his permanent home.
159
when do judgments become enforceable?
judgments are not enforceable until 30 days after entry.
160
how can a party get discovery of doc productinon from 3d parties?
> cannot sent request for production (for parties only)
MUST BE A SUBPOENA
> subpoena requiring the shop to produce the documents. A party may serve on a nonparty a subpoena that compels the nonparty to produce physical material, including documents and electronically stored information, relevant to the pending action.
