MBE Civil Procedure Flashcards
1
Q
What is diversity jurisdiction?
A
Plaintiff and Defendant must reside in different states
2
Q
What is domicile?
A
Physical presence and intent to remain
3
Q
Where is a corporation domiciled?
A
Either where the corporation was incorporated and/or where their principal place of business is
4
Q
What is complete diversity?
A
All plaintiffs must reside in different states from all defendants
5
Q
In diversity, what if there are multiple plaintiffs and defendants and there is one common place?
A
Diversity is ruined
6
Q
What is the amount in controversy requirement for diversity jurisdiction?
A
Must be in excess of $75,000
7
Q
What is federal question?
A
Regarding federal law
8
Q
What must be in complaint for federal question jurisdiction?
A
Plaintiff’s complaint must be explicitly about federal law
9
Q
What is personal jurisdiction?
A
Court’s jurisdiction over a person
10
Q
When will court always have person jurisdiction?
A
1) If you reside in the state where the case is being tried
2) If you are physically present in the state and accept service of process
3) When you consent to be sued in that jurisdiction
11
Q
What is an example of consenting to personal jurisdiction in a state?
A
ex: In a contract stating, “Agree to bring suit in…”
12
Q
When can court get jurisdiction over an out of state party?
A
When the person has sufficient minimum contacts & it does not violate due process
13
Q
What are some examples of minimum contacts?
A
1) Relationships
2) How often you travel
3) Business
4) Contacts in that place
14
Q
When does court have personal jurisdiction over a business?
A
When the business has “systematic and continuous business activity” & purposely availing themselves there
15
Q
What does it mean to purposely avail yourself (business)?
A
Taking advantage of the laws of the state
16
Q
What is removal?
A
Removing (transferring) a case to federal court
17
Q
Who may remove a case to federal court?
A
Only the defendant can remove a case to federal court
18
Q
When is removing a case proper?
A
When that case could have been originally filed in federal court
19
Q
What happens if removal is improper?
A
Federal court will remand (send back) to the state court the case came from
20
Q
Where can defendant remove a case to in diversity jurisdiction?
A
Must remove the case to a state where the plaintiff resides
21
Q
Where can defendant not remove a case to?
A
Cannot remove a case, in diversity jurisdiction, to a state in which the defendant resides
22
Q
What is venue?
A
What is the proper location/district for the case
23
Q
How many places can venue be proper?
A
Multiple. Not limited to one place
24
Q
Where is venue generally proper?
A
1) Where defendant resides
2) Where the substantial part of the events took place
3) If neither of the two above, then where the defendant is reachable (where court can get PJ)
25
What is personal service?
Handing a person the complaint
26
In personal service, who can serve the defendant?
A non-party who is over 18 years old
27
What if defendant is not at home when attempting service?
Can leave it with someone of suitable age
28
What if defendant not present for service at their place of business?
Can NOT leave it with someone at their job. Would need to try again
29
What are the three ways of serving someone?
1) Personal service
2) First class mail
3) Complying with any state statute
30
Can you serve someone through first class mail?
Yes, as long as defendant returns an acknowledgement form
31
Who can be served for a corporation?
Designated or authorized agent
32
Who can be served for a corporation if no designated or authorized agent?
Anyone in the corporation with sufficiently high placement
33
Questions for service of process?
1) Is it going to provide adequate notice?
| 2) Is it reasonably likely to inform the defendant
34
What is a 12(b)(1) motion?
Lack of subject matter jurisdicition
35
When can you bring a 12(b)(1) motion?
Any time
36
When must you make a motion to dismiss for lack of personal jurisdiction, improper venue, or improper service of process?
In the first response (can be in answer if that's the first response)
37
What is the standard for summary judgment?
No genuine dispute of material fact
38
Up to when can a party move for summary judgment?
Until 30 days after the close of discovery.
39
What is the standard for a directed verdict?
A reasonable jury does not have a legally sufficient evidentiary basis to find for the other party
40
What is another name for directed verdict?
Judgment as a matter of law
41
When is directed verdict motion made by defendant?
Either after plaintiff's case or after defendant rests
42
When can a plaintiff move for a directed verdict?
After defendant rests, but before case is sent to a jury
43
When can a party make a renewed motion for judgment as a matter of law?
Within 28 days of the verdict
44
Who can make a renewed motion for JMOL?
Only the party who originally moved for judgment as a matter of law
45
When does an action commence?
As Soon as complaint is filed with the clerk's office
46
Elements required in a complaint?
1) Short and plain statement of the grounds for jurisdiction
2) Summary of the facts
3) Demand for relief
47
When does a complaint need to allege specific facts?
Fraud - pled with particularity
48
What happens if allegation is not admitted or denied in a complaint?
Deemed admitted
49
Where are affirmative defenses pled?
In the answer
50
When can you amend a pleading as a matter of right?
Within 21 days of service of the original pleading
51
How many times can you amend as a matter of right?
Once
52
When do you need leave of court to amend a pleading?
If after 21 days of service
53
When will an amended pleading relate back to the original pleading?
When the contents of the amended pleading arose out of the same conduct, transaction, or occurrence of the original pleading
54
Rule for getting evidence in discovery?
Evidence is subject to discovery as long as it is (1) not privileged, (2) relevant, and (3) proportional to the needs of the case
55
What is work product?
Any material prepared by counsel, or anyone working for counsel, for that case
56
When would Erie choice of law apply?
Only in diversity cases
57
What are the two scenarios for Erie choice of law?
1) State law v. state law
| 2) state law v. federal law
58
For Erie, state law v. state law which prevails?
Court will choose the law of the state where the court sits
59
For Erie, state law v. federal law which prevails?
1) Substantive state law
| 2) Procedural federal law
60
What law prevails if conflict between state and federal law?
Federal law prevails
61
Can you remove a case if filed in state court where defendant resides?
No, if it is based on diversity jurisdiction
62
In a diversity case, what law does the court apply?
The law that would be applied by the courts of the state in which the federal court is located
63
For cases based solely on diversity, is supplemental jurisdiction available for claims by the plaintiff against persons made parties under the impleader rules?
No, unless full diversity for that claim also
64
If the case is diversity, does the court have supplemental jurisdiction over defendant's claims over a third party?
Yes
65
When does the rule that if removing a claim to federal court, it cannot be in the same state as the defendant?
Only in diversity cases. NOT when it's federal question
66
Within how many days of meeting and conferring must the parties provide the names, addresses, and telephone numbers of individuals likely to have discoverable information that disclosing party may use to supports its claims or defenses?
Within 14 days
67
When would electronically stored information not need to be produced?
When the responding party identifies it as from a source that is not reasonably accessible because of undue burden or cost
68
When is a letter from a nontestifying expert admissible?
Only upon a showing of exceptional circumstances under which it is impracticable to obtains facts or opinions by other means
69
For venue purposes, where is a business entity deemed to reside in?
A business entity is deemed to reside in any judicial district in which the defendant is subject to the court's personal jurisdiction with respect to the civil action in question
70
When a transfer is based on the ground that venue was improper, which law applies in the transferee court?
The law of the transferee court
Note: Venue here is *improper.* If convenience, then law of transferor court applies
71
If venue is proper, and defendant later files motion to change venue, is this proper?
Yes because 12(b) is available only for improper venue. When venue is right, can't move under 12(b). Transfer is then to the discretion of the judge
72
Where is venue proper?
1) District where any defendant resides, if all defendants are residents of the state in which the district is located; and
2) District in which a substantial part of the events or omissions giving rise tot he claim occurred
3) If nowhere in U.S. satisfies 1 or 2, then in the district that has PJ over defendant
73
What are three elements of granting a TRO without notice of the hearing to the adverse party?
1) the moving party gives specific facts in an affidavit or in verified complaint to establish immediate and irreparable injury will result before the adverse party can be heard
2) moving party certifies in writing all efforts to give notice of the hearing, and why notice should not be required, if any reason
3) moving party pays some money to pay for costs if other party is wrongfully enjoined
74
What is claim preclusion?
Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is barred by claim preclusion
75
What is the difference between claim and issue preclusion?
Claim preclusion focuses on the scope of a cause of action while issue preclusion focuses on the narrower issue that was litigated and that is relevant in the second case
76
What is needed for issue preclusion to apply?
The judgment must have been final, the issue actually litigated, and it must have been essential to the judgment
77
What are the requirements for claim preclusion?
1) Same claimant suing the same defendant
2) Valid final judgment on the merits
3) Case 1 and Case 2 must be the same claim (T/O")
78
If failed to argue something that you knew about and the case was dismissed under forum non covneniens, can you go back and make a motion for relief of judgment?
No, because you knew about the argument when motion was pending and didn't make it
79
When can you no longer make a JMOL?
When case is submitted to the jury
80
If a JMOL is combined with motion for a new trial, what happens if the judge grants the JMOL?
The must also rule conditionally on the new trial motion. Later, if JMOL is reversed on appeal, the new trial will then occur automatically (unless the appeals court says otherwise)
81
What is the term used to describe the effects of claim preclusion?
"Merger" and "bar"
| When plaintiff wins, the cause of action is merged. If defendant wins, the plaintiff is barred
82
If a juror failed to disclose information on voire dire, how would a judgment be reversed?
A proper showing that:
1) The juror failed to answer honestly a material question during voire dire; and
2) a correct response would have provided a valid basis for a challenge for cause
(Note: if juror doesn't disclose because he innocently misunderstands the question--new trial not granted)
83
When the reason for seeking relief from a judgment is mistake, inadvertence, surprise, or excusable neglect, when must the motion be made?
Must be made no more than one year after the entry of the judgment
84
Who is a required party for joinder?
Any person who either:
1) is required for the court to be able to accord complete relief; or
2) has such an important interest such that not joining them will cause impractical impairment in protecting their interest or expose an existing party to substantial risk of multiple liability
85
Who may be permissively joined?
1) T/O; and
| 2) common question of law or fact
86
When can a nonparty move for permissive intervention?
1) Federal statute provides a conditional right; or
| 2) nonparty has a common question of law or fact
87
What is the standard for a court ruling if an absent party should but cannot be joined?
The court will determine whether, in equity and good conscience, the case should proceed without the absentee (if absent party is indispensable, dismissal necessary)
88
What is necessary for a proper cross claim?
1) Must arise from the same T/O as original action; and
| 2) ask for actual relief from the co-party
89
What are the requirements for the Seventh Amendment's right to a jury trial?
Claim must be
1) Legal in nature; and
2) asserted against the type of defendant that was suable at common law in 1791
90
What a re some of the cases that do not have a jury requirement under the 7th Amendment?
Maritime, lawsuits against the government itself, or for many patent claims
91
Can a motion opposing summary be supported with affidavits?
Yes, if the affidavit:
1) Is based on personal knowledge;
2) Sets forth such facts as would be admissible during trial; and
3) Shows that the affiant is competent to testify
92
Why can't Congress extend federal jurisdiction to claims of citizens in the same state under state law?
Article 3 of the Constitution requires diversity.
93
What does Article 3 say about the judicial power?
It shall extend to cases arising under the Constitution, laws, or treaties, and diversity
94
What is the standard for the court to modify a pretrial order (the conference right before trial)?
The court may modify the order issued after a final pretrial conference only to prevent manifest injustice
95
When is there manifest injustice?
Facts need to show it to you/make clear. Don't assume manifest injustice
96
If an indispensable party's rights are impaired, must the court dismiss the case?
No. Court will looks to several factors but if just impair and not prejudice, court likely won't dismiss cause the other party can just file suit later
97
In a jury trial, what will the court do if the facts are consistent with the verdict?
The verdict will be entered
98
In a jury trial, if the findings of fact are inconsistent with the verdict, what will the court do?
The court *MAY*:
1) enter a judgment consistent with the interrogatory answers, notwithstanding the general verdict
2) direct the jury to deliberate further; or
3) order a new trial
99
In a jury trial, what if the jury's answers are inconsistent with each other and the verdict entered?
Judge must send the back back for further deliberation or order a new trial
100
What are the five requirements of a class action?
(1) joinder is impracticable, (2) common questions of law or fact, (3) claims or defenses are typical, (4) representative fairly and adequately protects interests of the class, and (5) one of the 23(b) classes
101
What are the 3 types of classes under 23(b)?
(1) single action necessary to avoid inconsistent outcomes or impairment of absent members' interest, (2) injunctive or declaratory relief necessary, (3) common question of fact or law prevail over individual members' interest
102
Under Class Action Fairness Act, what is required for SMJ over class action based on diversity?
1) +$5,000,000
2) at least 100 plaintiffs; and
3) minimal diversity
103
What is required before deciding SMJ for a class?
Class certification
104
When the parties of a class action reach a settlement agreement, what must the court do?
The court must hold a hearing and approve of the settlement to ensure that it is fair, reasonable, and adequate
105
Before approving a settlement agreement in a class action, must a court allow members of the class to opt out?
No, the court is *permitted* to give members an opportunity to opt out before conducting a hearing and approving the agreement
106
In a class action, if a settlement is based on coupons, what can the attorney's fees be based on?
Fees can be based on a percentage of the value of the coupons actually redeemed or the reasonable amount of hours counsel spent on the case
107
Can the court impose monetary sanctions under Rule 11 on a person represented by an attorney?
Not on the ground that the party's attorney violated Rule 11
108
What is required for merger in claim preclusion?
Final judgment on merits, same claimant and defendant, same cause of action or claim
109
If served the president of a corporation but failed to describe with reasonable particularity the matters for examination, what can the company do?
Object to the executive's deposition and move for a protective order excusing the corporation, including the president, from appearing at the deposition.
110
May discretionary remands be appealed?
Yes on an abuse of discretion standard because the remand order would be considered a final judgment
111
What is an exception to the general rule that remand orders cannot be reviewed by a Court of Appeals?
The discretionary choice of a federal district court not to exercise supplemental jurisdiction is not a remand based on lack of jurisdiction but rather a remand based on discretion.
112
What is the standard for a court on reviewing a JMOL?
The court must review the evidence in favor of the non-moving party and whether legally sufficient basis to find for the party
113
In a dispute involving real property, what substantive law applies?
That of the state where the property is located
114
In a dispute for damages based on fraudulent conveyance, what state substantive law applies?
The law of the most interested place will govern
115
If the parties do not request a jury trial within 14 days after the service of the last pleading, what happens if a party makes a motion for a jury trial?
The court MAY order a jury trial on any issue for which a jury might have been demanded (look at factors to determine)
116
Once a trial court issues an order after a final pretrial conference, what can a party do to seek relief from the court's ruling on the pretrial statement?
Object in the trial court and move to modify the order to prevent manifest injustice
117
What is the standard for a court to modify an order after a final pretrial conference?
Modify only to prevent manifest injustice
118
How long does a defendant have to remove a case to federal court after service of process?
30 days
119
What happens if don't return waiver of service form?
Improper service. Plaintiff would need to proceed with formal service
120
What is required in an order for a TRO?
Every order granting a TRO must state the reasons why it was issued and detail the acts restrained
121
When can you voluntarily dismiss without seeking permission from the court?
Only until the defendant answers or moves for summary judgment
122
Can a jury verdict be 4-3 in a civil case?
Yes because the parties can agree to a non-unanimous jury verdict
123
What exactly is Erie?
The court shall apply whatever law would be applied by the courts of the state in which the district court is sitting (not just where the court is)
124
What is the standard for compulsory counterclaim?
Arising out of same T/O
125
When can JMOL be filed?
Any time before submission of the case to the jury
126
What must a party do to receive a jury trial?
Party must file a written demand and serve it on all parties within 14 days after the service of the last pleasing directed to the jury-triable issue
127
Can a party amend a pleading after a verdict has been rendered?
Yes, to conform the pleading to the evidence and to raise unpleaded issues (if tried by parties' express or implied consent)
128
If filing a motion for clerk to enter default judgment, can clerk do so without the other party receiving any further notice of the motion?
Yes, if sum certain, default was bc D didn't appear, defendant is not infant or incompetent, and damages are not greater than those in counterclaim
129
What is the procedure/who is the fact finder if legal and equitable claims are joined in one action involving common fact issues?
Legal claim is tried first by the jury, then the equitable claim is tried by the court
130
When is something reviewable under the Interlocutory Appeals Act?
When:
1) Trial judge certifies that the order involves question of law as to which substantial ground for difference of opinion and an appeal would materially advance the conclusion of the case; and
2) at least 2 appellate court judges agree to hear the appeal
131
What interlocutory (nonfinal) orders may be immediately appealed?
1) Order granting injunction
2) Order appointing a receiver or refusing to wind up or take steps to accomplish receivership
3) Decrees in admiralty cases where liability found but damages left for later
4) Patent infringement where accounting want
5) Order whereby possession of property is changed or affected
132
Within how many days from the entry of judgment can a party file a notice of appeal?
30
133
If a court dismisses some claims and disposes of some parties of a claim is it immediately appealable?
Only to the extent that the court makes an express determination that there is no just reason for delay
134
If multiple claims in a case and the court grants SJ on one of the claims, is that SJ order immediately appealable?
Only if the court provides that it is a final judgment and expressly determines that there is no just reason for delay (not final if only ruled on one of the claims)
135
Who can exercise the right of removal?
Only the defendant (even if counterclaim asserted - only defendant)
136
When a defendant attempts to remove a case from state to federal court, did the state court need to have SMJ over the case?
NO
137
What are the 2 time restrictions on removal of a diversity case?
1) Needs to be removed within 30 days of the defendant's receipt of a copy of the paper that makes it removable; but
2) No case can be removed after being in state court for a year, unless plaintiff somehow acted in bad faith to prevent defendant from removing
138
What if a case with multiple defendants, one defendant wants to remove?
All defendants must consent to removal
139
What must the court consider if a nonparty want to use a previous judgment offensively?
The court must consider whether it would be fair and equitable to allow the nonparty to do so
140
If Case 1 and Case 2 are in different judicial systems, which preclusion law will the Case 2 court apply?
The law of the court in Case 1
141
What are the elements of claim preclusion (res judicata)?
1) same claimant suing the same defendant
2) Valid, final judgment on the merits
3) Same T/O
142
Who may issue preclusion be used against?
Only against somebody who was a party to Case 1 or in privity with that party
143
Can a defendant purposefully avail without setting foot in the forum?
Yes, by causing an effect in the forum
144
What are the two factors for contact with a forum?
1) Purposeful availment
| 2) Foreseeability
145
What is general PJ?
Defendant is at home in the forum
146
What are the three things in the constitutional test for personal jurisdiction?
Contact, Relatedness, Fairness (specific PJ only)
147
When must process be served?
If in the U.S., within 90 days of the filing of the complaint
148
What are the elements for substituted service (giving service to someone else?
1) Defendant's home
2) someone of suitable age
3) who is also living there
149
Can you serve a defendant's agent?
Only if it is within the scope of that person's agency
150
What method can be used to serve a minor or incompetent person?
Only by a method permitted by the law of the state in which service is to be made
151
If requesting waiver of process, how many copies of the waiver form must be sent to defendant?
2
152
How many days after getting process must defendant send back waiver form in order to consider service waived?
30 days if within the U.S., 60 days if outside of the U.S.
153
When is waiver of service effective?
When the plaintiff files the waiver in court
154
Must the claims be related to each other to be able to aggregate them?
No
155
How to determine whether equitable relief satisfies amount in controversy requirement?
1) Plaintiff's viewpoint: have a value of more than $75,000 to plaintiff?
2) Defendant's viewpoint: Will it cost defendant more than $75,000?
156
What are the two steps to determine if there is supplemental jurisdiction over a claim?
1) Common nucleus test
| 2) In diversity cases, claims by plaintiffs generally cannot invoke supplemental jurisdiction, subject to an exception
157
What is the exception to the limitation in supplemental jurisdiction in diversity cases?
there are multiple plaintiffs and the claim by one of them does not meet the amount in controversy requirement
158
When can a plaintiff amend her complaint as a matter of right?
Once no later than 21 days after the defendant serves her first Rule 12 response
159
Can defendant amend his answer?
Yes, within 21 days of serving the answer
160
What is the standard to have multiple plaintiffs or defendants?
Same T/O and at least one common question of law or fact
161
Is a joint tortfeasor a necessary/required party?
No
162
Do you need a necessary party to continue with a case?
No. Court will look to several factors (alternate forum, likelihood of harm, relief to avoid harm)
163
What is a compulsory counter claim?
One that arises from the same T/O
164
is a crossclaim compulsory?
No, can be asserted in another claim
165
What is the time to implead without the court's permission?
Within 14 days of serving the answer
166
What are the class action requirements?
Numerosity, commonality, typicality, adequate representative
167
What is the only type of class action where people can opt out?
Common question or damages
168
What is the Class Action Fairness Act?
Aside from diversity, a court can hear a class action if:
1) at least 100 members;
2) any class member is diverse from any defendant; and
3) aggregated claims exceed $5 million
(Note: any defendant can remove a case here)
169
What happens if don't include something in initial disclosure that should be there?
Cannot use that evidence, unless the failure to disclose was substantially justified or harmless
170
What is the time period to answer interrogatories, RFA, and RFP?
Within 30 days of service
171
What is the burden to get work product?
Substantial need and undue hardship in obtaining the materials another way
172
What kind of work product is absolutely privileged?
Mental impressions
173
What standard for a court to revisit jury instructions?
Clear error that affected a party's rights
174
What claims may a (single) plaintiff aggregate to reach $75,000?
All of his claims, even if they are not related
175
If moving for default judgment and it needs to go to a judge, does the other party need notice?
Yes
176
If one plaintiff's claim is over $75k, and another plaintiff's claim is $50k, what can happen?
Court can exercise supplemental jurisdiction over the other claim. DO NOT AGGREGATE DIFFERENT PLAINTIFFS
177
Where is venue proper?
Where defendant lives and where substantial events took place
178
How long does a person have to answer if they waived service?
60 days from the date the plaintiff mailed the summons and complaint
179
If meet and confer, can you get fees?
Yes if win on the motion
180
If a person owns property in a state, and a lawsuit has nothing to do with that property, is that enough to establish personal jurisdiction?
No
181
Can a court order a new trial without a motion?
Yes, a court is authorized to order a new trial on its own for any reason that would justify granting a party's motion
182
What suits does the 7th Amendment guarantee a right to a jury trial?
Suits at common law
183
Is a writ of ejectment a suit at common law?
Yes
184
What is needed for SMJ for a supplemental claim?
Need a claim that it can attach to that has SMJ
185
Is partial summary judgment immediately appealable?
No
186
If voluntarily dismissed, and then statute of limitations runs out, what do you use to start the clock for an appeal?
The run of the statute of limitation because at that point a claim can't be brought and thus there is a final judgment once statute of limitations is up
187
Can a party amend an answer after 21 days even if statute of limitations has run?
Yes.
188
Can a party appeal if a judge orders a new trial?
No because there is no final judgment
189
What is the time limit to file a motion for a new trial?
28 days from the final judgment
190
If you want to challenge an error at trial, what would be the best motion to file after a jury has returned a verdict?
Motion for a new trial
191
If a claim is brought through a class action (historically not a common law right in 1791), can the claim be subject to a jury trial?
Yes, if the underlying claim of the class action is the basis for an action at law
192
What are 2 examples of creating a presumption of bias in a juror that merits striking a potential juror for cause?
Stock ownership or worked for (or spouse work for) one of the litigants
193
Can pure matters of law be considered on appeal, even if not properly presented in the trial court?
Yes. Appellate court has the discretion to decide whether to hear it
194
Can class member still be bound by settlement even though they did not receive actual notice?
Yes, just reasonably calculated notice
195
Can a party join a cross claim that does not arise out of the same T/O?
Yes, if already asserted a proper cross claim, can join any other claim against that same party
196
For removal, what if two defendants and one defendant wants to remove the case but the other defendant is a citizen of that state?
Can't remove
197
Can proper venue be waived?
Yes
198
If seeking mix of legal and equitable remedy, entitled to jury trial?
Yes
199
Is specific performance legal or equitable?
Equitable
200
Can mental condition be plead generally for fraud?
Yes, but still need to plead other facts w/ particularity
201
What is another name for non-mutual collateral estoppel?
Issue preclusion
202
What is the standard on appeal for factual matters?
Clearly erroneous
203
Where can an affirmative defense not be brought up?
In a motion to dismiss
204
What standard does the appellate court review a trial court's decision to reduce punitive damages?
De novo
205
What happens if fail to object to a procedural mistake?
Waive right to appeal it
206
Need to get PJ over plaintiffs?
No
207
Can a case be dismissed on forum non conveniens grounds?
Yes
208
How to get immediate review under collateral order doctrine?
1) lower court must have conclusively determined disputed question;
2) issue must be separate from and collateral to the merits; and
3) issue must be effectively unreviewable on appeal from the final judgment
209
What is the effect of failing to renew JMOL or request new trial based on the insufficiency of the evidence?
Party is precluded from raising the question of evidentiary sufficiency on appeal to support either JMOL or new trial
210
What is the standard for determining whether to grant a new trial in jury cases?
Whether the verdict is against the clear weight of the evidence
211
What level of review will appellate court review denial of a new trial?
Abuse of discretion
212
Rule 11 applies only to what?
Pleadings
213
What is interpleader?
Allows someone who is a stakeholder to a dispute to require two or more parties to resolve a dispute first to determine who has a valid cause of action so that the stakeholder does not face separate actions for one obligation
214
What are the statutory requirements for interpleader?
1) AIC $500 or more
2) diversity for any two adverse claimants
3) nationwide PJ
4) venue where claimant resides
215
What's a supplemental pleading?
Something happened after the lawsuit was filed. Need leave of court and relation back is not applicable here
216
What is required for permissive joinder?
Same T/O AND common question of law and fact to all parties
217
Can a federal common law defense preempt a conflicting state law in diversity cases involving subject matter that bears some relation to a federal statute?
Yes, if a unique federal interest is at stake (court applies balancing)
218
What is required in a final judgment in a non-jury trial?
Judge must make specific findings and state conclusions in support of the judgment
219
At what point can a party move for a JMOL?
Only during trial
220
Can a court transfer a case to another case when both courts were improper but the parties agreed to the transfer?
No, a court may only transfer from an improper venue to a venue that would have been proper originally
221
Can you use undisclosed information (not disclosed in the initial disclosures) as support against a motion for summary judgment?
No unless the person shows that the failure to disclose was substantially justified or harmless
222
Can a party make factually inconsistent statements in a complaint?
Yes, if there is a good faith basis
223
What is the standard for a new trial?
Whether the verdict was against the manifest weight of the evidence, to correct an error, or because the verdict was excessive or inadequate
224
Should court grant JMOL if jury finds in favor for that party?
No, consider a new trial instead
225
What cases cannot be removed, even if the federal court has SMJ?
Certain claims under the Violence Against Women Act, some actions against railroads, claims that arise under a state worker's compensation law where the action was filed
226
What is the proper remedy for misjoinder?
Severance
227
Can you raise a JMOL for the first time on appeal?
No
228
When is final judgment on some issues okay?
When the court expressly determines that there is no just reason for delay
229
Where is venue proper if removing a case?
The federal district court located in the state where the original case was filed
230
What happens if case is filed in a place that goes against forum selection clause?
Court weighs factors to decide whether to transfer under federal statute, even of state where court sits hold forum selection clauses invalid
231
Entitled to know of experts other party intends to call?
Yes. If still in discovery wait for them to supplement their disclosures. Just need to know before trial
232
What happens if defendant refuses waiver of service and doesn't show good cause for the refusal?
Court MUST impose on defendant the expenses later occurred in making service and costs of any motion to collect those service expenses
233
Can you fail to waive without good cause/
No
234
Do you need to give notice to a #2 class type class action?
No, not entitled to notice of the claim. As such, for class action that do not concern a common question of fact or law, all class members will be bound by the judgment even when they did not get notice
235
What is the time frame for the other defendants to join a motion for removal?
30 days
236
What law applies to determine if a claim is precluded when a case was involuntarily dismissed?
Federal common law, which says it depends on the law of the state in which the federal court court that issued the dismissal is located
237
Can you dismiss based on misjoinder?
No, but can file motion to sever
238
Does it matter if fail to object to a jury instruction before trial but object at trial when the jury instruction was changed?
No
239
If both legal and equitable claims, and proper demand for jury made, when can case got to a jury?
When there is an issue common to both legal and equitable claims
240
What is 12(b)(7)?
Failure to join a party under FRCP 19
241
IS remand a final order?
Yes, because it effectively puts litigants out of court (and remand is discretionary)
242
What is the standard for granting a writ of mandamus?
1) Appeal would be insufficient to correct the problem; and
| 2) Trial court's actions constitute a serious abuse of power in need of immediate rectification
243
What is the effect of an involuntary dismissal for failure to prosecute?
This will operate as an adjudication on the merits
244
In cases involving real property, what law to apply if different state choice of law?
Law of the state where the real property is located
245
If you hear a juror talking five months after the trial, what would be the appropriate motion to file?
Motion for relief from a judgment
246
What must a moving party show to have a scheduling order modified?
Good cause
247
Is an appeal likely successful when a juror should have been excluded for cause but you had to use a preemptory challenge because judge didn'g rant the for cause challenge?
No because denial of a challenge for cause does not warrant reversal if the prospective juror ultimately does not serve on the jury
248
Until when can a party file a renewed JMOL?
28 days after entry of judgment
249
Can the deadline to file a renewed JMOL be extended if the lawyer shows good cause?
No because the deadline for filing a renewed JMOL cannot be extended
