MBE CivPro

Question 1

Deadline for filing a renewed motion for judgment as a matter of law

Answer 1

The movant may file a renewed motion for judgment as a matter of law no later than 28 days after the entry of judgment.

Question 2

How to raise an error in a jury instruction on appeal? requirements for preserving this right on appeal?

Answer 2

In order to be able to raise an error in a jury instruction on appeal, a party must timely object to the instruction on the record and state the grounds for the objection. A party’s objection is timely if it is made promptly after learning that an instruction has been or will be given or a request has been refused.

Question 3

Deadline for a jury trial

Answer 3

A demand for a jury trial must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury. Here, the complaint sought damages, which is an action at law for which a jury trial may be had.

Question 4

Minimum for Jury

Maximum for Jury

Answer 4

6~12

Question 5

Civil jury unanimity requirement?

Answer 5

yes

Question 6

Jury (Civ)

Answer 6

6~12 + Unanimity

Question 7

Jury (Crim)

Answer 7

Fed: 12 + Unan
State: 6 or more+ unan

Question 8

How to compel production of documents relevant to litigation from a non-party?

Answer 8

A party may use a subpoena to obtain documents relevant to litigation that are in the possession of a person who is not a party to the litigation. Here, the plaintiff properly served a subpoena on the supplier.

Question 9

Is there any indication of ____conference under Rule 26(f)? If not, can a party take a deposition (party or nonparty)?

Answer 9

Rule 30 requires leave of the court to take a deposition before the discovery conference under Rule 26(f). Here, there is no evidence that the discovery conference has occurred.

Question 10

Can use interroga to non-party?

Limited to how many?

Answer 10

Interrogatories may not be used on nonparty witnesses. Answer choice B is incorrect because a party may serve no more than 25 written interrogatories on any other party.

Question 11

Class action req under CAFA

Answer 11

Class Action Fairness Act

100 class members

> 500mil

Min diversity

Question 12

Class action claims, settlement

Requirement.

Req for class members not agreeing to the settlement plan

Answer 12

The claims, issues, or defenses of a certified class may be voluntarily settled, compromised, or dismissed only with the approval of the court. In this case, the class action was voluntarily settled without the approval of the court. 
A class action may be settled even if some of the class members do not accept the proposed settlement. Those class members must be given the opportunity to opt out of the settlement and proceed on their own, as they did here.  Although notice of a proposed settlement must be provided to all class members who would be bound by the proposal, notice alone does not make settlement proper.

Question 13

Compulsory Counterclaim

Answer 13

Use it or lose it

Question 14

Response to amended pleadings + Court order

Answer 14

Unless the court orders otherwise, a party must respond to an amended pleading within the later of 14 days after service of the amended pleading or the time remaining for response to the original pleading. the court can order a responsive time earlier or later than would typically be required. If it does, the court-ordered time period applies.

Question 15

Allegation in the PL’c omplaint. How is it being treated? How about damages?

Answer 15

Although an allegation in the plaintiff’s complaint is generally deemed admitted if that allegation is not denied in the answer, the same is not true if the allegation relates to the amount of damages.

Question 16

Fed court + Div Jx + Burden of Proof

Under Erie?

Under Klaxon?

Answer 16

Remember that burdens of proof are considered substantive in a choice of law analysis under Erie, but procedural in a conflicts of law analysis under Klaxon.

Question 17

Federal District court + Div Jx

substantive law of which?

Answer 17

federal district court with diversity jurisdiction generally must apply the substantive law of the state in which it is located unless a federal statute applies.

Question 18

Fed Q claim

Substantive, procedural law?

Answer 18

both federal

Question 19

In rem proceedings. DP notice requirement

Answer 19

Due process is met if the notice is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

Question 20

In determining PJ in Diversity JX. Service of summon rule?

Answer 20

Under Rule 4(k)(1)(A), the service of a summons in a federal action establishes personal jurisdiction over a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.”

Question 21

4k1B bulge?

Answer 21

Under Rule 4(k)(1)(B), the so-called “bulge provision,” a federal court has personal jurisdiction over a party who is served within a U.S. judicial district and not more than 100 miles from where the summons is issued, even if state law would otherwise not permit such service.

Question 22

When is the diversity determined?

Answer 22

When the case is filed as diversity.

Question 23

State law claims generally excluded from diversity JX

Answer 23

Probate and family matters

Question 24

Res Judicata?

Answer 24

Claim Preclusion

Question 25

Collateral estoppel?

Answer 25

Issue preclusion

Question 26

Defective product. Person sues the motor vehicle dealer and loses. Jury found not defective. now sues manufactuer. Preclusion?

Answer 26

1. Is the claim in the second suit precluded by the prior adjudication? No. Not the same parties.

(If yes, inquiry ends here)

2. If not, are there any issues in the second suit precluded by the prior adjudicaiton? Yes. Same issue - defect.

Question 27

Final judgment for the purpose of Resjudicata? includes what?

Answer 27

Res judicata - Claim preclusion.

Includes SJ, DJ, Dismissal prejudice.
Not necessary there has been a trial .

Question 28

Default Judgment. Claim preclusive? issue Preclusive?

Answer 28

yes. No (not actually litigated)

Question 29

Claim preclusion requirements

Answer 29

1. Final judgments on the merits
2. Second suit must be the same parties or successors
3. Second suit must involve the same claim

Question 30

Issue preclusion requirements

Answer 30

1. Same issue of fact must arise in two suits
2. Issue must have been actually and ncessarily decided in the first suit (litigated)
3. The Party to be precluded must have been a party to the first suit. - his day in court

Question 31

Consent to PJ

Answer 31

Unlike with subject-matter jurisdiction, a party may consent to personal jurisdiction. The consent may be express, implied, or made by a voluntary appearance to defend the case on the merits.

Question 32

Conflicts of law - outcome determinative test.

Answer 32

The district court will start by determining whether there is a conflict between state and federal law with respect to the issue before the court.

If no conflict exists, then the analysis does not need to proceed any further because the court can apply state and federal law harmoniously to the issue.

If no federal statute or rule is on point, then the court must determine whether federal common law, rather than state law, should be applied.

In making this determination with respect to federal common law, a district court will ask whether the failure to apply state law will lead to different outcomes in state and federal court.

If the answer is no, then the district court will generally apply federal common law, rather than state law.

If the answer is yes, then the court will apply state law, unless affirmative countervailing federal interests are at stake that warrant application of federal law.

Question 33

inquiry of federal interest at stake - necessary for what kind of conflict of law?

Answer 33

The one involving the application of federal common law

Question 34

Conflict of law - Application of federal rule v. state rule - validity test under Rules Enabling Act

Answer 34

The court will start by determining whether there is a conflict between state and federal law with respect to the issue before the court.

If the applicable state and federal laws do conflict, then the district court must ask whether a valid federal statute or Federal Rule covers the disputed issue.

Before applying a Federal Rule (rather than a federal statute) that is on point, the court must determine whether the rule is valid under the Rules Enabling Act.

Specifically, the court must ask whether the Federal Rule abridges, enlarges, or modifies any substantive right.

Question 35

Service of process law

Answer 35

Under the federal rules, service may be made by following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located (the forum state) or in the state where service is made.

Question 36

Prelim injunction

Answer 36

A plaintiff seeking a preliminary injunction must establish that: (i) she is likely to succeed on the merits; (ii) she is likely to suffer irreparable harm in the absence of relief; (iii) the balance of equities is in her favor; and (iv) the injunction is in the best interest of the public.

Question 37

Reply to the defendant’s answer

Answer 37

Under Rule 7(a)(7), a reply to the defendant’s answer is made only when the plaintiff is ordered to do so by the court. Thus, the plaintiff is deemed to deny any allegations in the defendant’s answer, including any affirmative defenses, if not ordered to reply.

Question 38

Amendment of pleadings as a matter of course

Answer 38

Pursuant to Rule 15(a)(1)(a), a party may amend its pleading once as a matter of course within 21 days after serving it.

Question 39

Amendment re: changing the named D

Answer 39

Under Rule 15, an amendment to a pleading that changes the named defendant relates back to the date of the original pleading if it asserts essentially the same claim or defense, and the new party knew or should have known of the potential action and received notice within 90 days after the filing of the original complaint.

Question 40

Court sanction. How?

Answer 40

A court may impose sanctions, including payment of attorney’s fees, on attorneys, law firms, and parties for violations of Rule 11, but may typically do so only when a party makes a motion for such fees.

Question 41

Requirement for joinder of defendants

Answer 41

In order for joinder of defendants to be proper, any right to relief must arise out of the same transaction, occurrence, or series of transactions or occurrences.

Question 42

Impleader

Answer 42

A defendant may implead a third party at any time after the complaint has been filed by serving a summons and third-party complaint on the third party. The defendant (i.e., the third-party plaintiff) may do so without the court’s permission if he files the third-party complaint within 14 days after serving his answer to the plaintiff’s complaint.

Question 43

Court’s determination of the extent of discovery

Answer 43

In general, the court is required to limit the frequency or extent of discovery otherwise allowed by the rules if it determines, in its discretion, that the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake, and the importance of the discovery in resolving the issues. The scope of discovery is limited to relevant matters that are proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issue, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Question 44

Use of deposition by a party against the deponent

Answer 44

Depositions may be used by a party to impeach the testimony of the deponent as a witness or for any other purpose permitted by the Federal Rules of Evidence.

Question 45

Court sanction in pretrial conference

Answer 45

The court may require that a party or its representative be present or reasonably available by telephone or by more sophisticated electronic means to consider possible settlement at a pretrial conference. If counsel or a party fails to appear, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order. In this case, the car driver failed to appear at the pretrial conference. However, this failure to appear was due to a mistaken belief as to the date of the pretrial conference. If the court determines that the car driver should be sanctioned, then the most appropriate sanction would be the least serious of the sanctions listed. Staying further proceedings until the order is obeyed (i.e., staying proceedings until the pretrial settlement conference takes place) is the most appropriate sanction in this case.

Question 46

PL failure to prosecute(follow up) the case. Impact?

Answer 46

If a plaintiff fails to prosecute his case and, in response to a defendant’s motion, the court dismisses the action, the dismissal is with prejudice and operates as an adjudication on the merits.

Question 47

Peremptory challenge in civil action

Answer 47

Each party in a civil case is entitled to three peremptory challenges. As long as these challenges are not exercised for a constitutionally impermissible reason (i.e., race or gender), there is no restriction on their exercise.

Question 48

Peremptory challenge in crim action

Answer 48

e.g. when indicted on a felony in the USA the defense gets 10 challenges to the prosecution’s 6

Question 49

Juror excusal. Requirement?

Answer 49

An individual who has been selected to serve as a juror must participate in the verdict unless excused for good cause, such as illness, family emergency, or misconduct. The federal rules do not authorize the dismissal of jurors to arrive at a specific number of jurors. Here, the judge excused the three jurors without demonstrating good cause.

Question 50

Trial by <5 jury? how?

Answer 50

A case may be tried before and a verdict returned by less than a six-member jury, if the parties so stipulate.

Question 51

JAMOL (not for the claim but ) for a defense. Possibe?

Answer 51

yes . n a jury trial, a party may move for a judgment as a matter of law with regard to a defense as well as a claim. A party may make such a motion once the opposing party has been fully heard on the issue. Since the physician’s attorney has presented his case, the motion by the patient’s attorney with regard to the physician’s statute of limitations defense was both proper and timely.

Question 52

JAMOL requirement

Answer 52

Under Rule 50(a), once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if the court finds that there is insufficient evidence for a jury reasonably to find for that party.

Question 53

JAMOL Timing

Answer 53

A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury, provided a party has been fully heard on an issue. Thus, the motion may be made after the presentation of all evidence but before the case goes to the jury.

Question 54

court’s corretion of clerical error? when in appellate court?

Answer 54

A court may correct a clerical or other mistake resulting from oversight or omission whenever one is found in a judgment on motion by a party or on its own initiative, with or without notice. However, once an appeal from the judgment or order has been docketed in the appellate court, such a correction can be made only with leave of the appellate court.

Question 55

Appellate court’s power re: certification appeal

Answer 55

An appellate court may, but is not required to, hear an immediate appeal of a certification decision rendered by the district court.

Question 56

Injunction. Immediately appealabe?

Answer 56

Yes. While most interlocutory orders are not immediately appealable, certain equitable orders are reviewable immediately as a matter of right, including an order granting an injunction.

Question 57

Notice of appeal filing deadline

Answer 57

A judgment or order certified under Rule 54(b) must generally be appealed within 30 days from the date of the entry of the certified judgment. The notice of appeal was filed after the 30 days had expired, so the appeal is untimely.

Question 58

Appeal permitted + Proceeding in the Dcourt?

Answer 58

If an appeal is permitted, it will not stay proceedings in the district court unless the district court or the court of appeals so orders.

Question 59

Bankrupt clinic that was vicariously liable for the doctor’s negligence. Is doctor precluded in litigation?

Answer 59

No. Issue preclusion requires that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the first action. Although there was an employer-employee relationship between the clinic, the defendant in the first action, and the doctor, the doctor was not in privity with the clinic nor a successor-in-interest. Consequently, the doctor was not a party to the first action against the clinic.

Question 60

A Fed ct with SMJ. Must adjudicate the controversy despite the pendency of a similar action?

Answer 60

yes. A federal court with subject-matter jurisdiction is required to adjudicate the controversy despite the pendency of a similar action in a state court.

Question 61

Impleader Jx

Answer 61

A plaintiff may assert related claims against an impleaded party when the claim falls under the court’s jurisdiction. Here, subject matter jurisdiction does not exist with respect to the spouse’s claim against the third party based on diversity jurisdiction because both the spouse and the third party are citizens of the same state.

Question 62

Due Process In Rem notice

Answer 62

Due process is met if the notice is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of an action and afford them an opportunity to present their objections. If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through in-person delivery, registered mail, return receipt requested, or some other means likely to notify the particular individual is required. Notice by publication under such circumstances would not be sufficient.

Question 63

Venue Rule

Answer 63

Generaly not on PL residence

1) Where D resides
2) Where claim arose
3) If neither above, then any district D is subject to PJ

Question 64

Federal Tort Claims Act - Venue

Answer 64

n an action filed under the Federal Tort Claims Act, venue is proper either in the judicial district where the plaintiff resides or in the judicial district where the act or omission occurred. Here, the judicial district for the western state in which the plaintiff resides is also the district in which the act or omission that gave rise to the claim arose.

Question 65

Venue + An action against a federal officer actin in official capa

Answer 65

An action against a federal officer or employee acting in an official capacity or under color of legal authority may be brought in the judicial district in which the plaintiff resides.

Question 66

Transfer rule `

Answer 66

Transfer is only to a district with proper venue (where the claim could have been brought originally)

Exception: Improper venue may occur when ALL parties agree

Question 67

Federal law vs. State law re: pet food. Which law?

Answer 67

If the applicable state and federal laws conflict, the district court must ask whether a valid federal statute covers the disputed issue. Here, there is a valid federal statute on point, so the district court must apply federal law rather than the State B law.

Question 68

TRO requirement

Answer 68

Before a court can issue a temporary restraining order, the attorney of the party seeking the order must certify in writing any efforts made to give notice and the reasons why notice should not be required.

Question 69

D’s waiver of service + answer requirement?

Answer 69

If a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside a judicial district of the United States.

Question 70

Sanction. way to avoid sanction

Answer 70

A party (or party’s attorney) may seek sanctions that can include the payment of reasonable attorney’s fees and other costs attributable to violation of the certification made by a party or the party’s attorney in presenting a pleading or other paper to the court. Among the certifications made is that factual contentions contained in a pleading have evidentiary support based on a reasonable inquiry. Although the employee’s attorney violated this certification, the employee’s attorney is not subject to sanctions because the attorney withdrew the counterclaim within 21 days of service of sanctions motion.

Question 71

Interpleader. Explain

Answer 71

to resolve the problem of competing claims to the same property

(entitlement to life insurance proceeds)

Question 72

Statutory interpleader. Requirement

Answer 72

1. Amount: >500
2. authorizes nationwide service - inpersonam anywhere
3. Venue proper anywhere the claimant resides
4. SMJ based on minimal diversity

Question 73

Federal Staturoy interpleader requirement

Answer 73

n order to file a federal statutory interpleader action, the stakeholder must be willing to either deposit the property at issue with the court or to post a bond in an appropriate amount.

Question 74

Joinder of claims

Answer 74

As between the same PL and the same D, all claims may be joined (need NOT be related)

Question 75

Class action 23(a) requirements

Answer 75

1. Numerosity
2. Commonality
3. Typicality
4. adequacy

Question 76

Class action 23(b) requirements

Answer 76

1. Risk of prejudice
2. Final Equitabe Relieff
3. Common legal or factual questions

Question 77

Class action fairness act of 2005

Answer 77

1. min 100 members
2. with more than 5 mil at stake
3. only minimal diversity

Question 78

DJ entered by who? Relief sought? accompanied by what?

Answer 78

When a party has failed to plead or otherwise defend an action, and that failure is shown by affidavit or otherwise, the court clerk must enter the party’s default. Once a default is entered against a party, the plaintiff may seek a default judgment. If the relief sought is a sum certain or an amount that can be made certain by computation, the default judgment can generally be entered by the court clerk on the plaintiff’s request, accompanied by an affidavit showing the amount due.

Question 79

“two-dismissal” rule

Answer 79

If a plaintiff voluntarily dismissed a prior state or federal action based on the same claim by filing a notice of dismissal, then a subsequent dismissal of the same claim by notice will be with prejudice, and thus has preclusive effect. *must seek leave of court for dismissal without prejudice”

(Policy: PL has to pay if she ends up filing the same twice)

Question 80

SJ requirements

Answer 80

Under Rule 56, a motion for summary judgment must be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.

Question 81

The fed statute creating a cause of action silent as to an action filed under it may be heard by a jury. Necessary inquiry?

Answer 81

If a new cause of action that was unknown at common law is created, such as the statutory cause of action here, then the court must look to whether the remedy sought is legal rather than equitable; if it is legal, a jury should be allowed.

Question 82

Remittur

Answer 82

If the court determines that a verdict was excessive, then it may offer a reduction of the verdict, known as a remittitur, and grant a new trial on the condition that the remittitur is not accepted. See Hetzel v. Prince William County., 523 U.S. 208 (1998). If the court determines that the verdict was inadequate, then it only has the option of ordering a new trial. An additur (enhanced judgment) is not permitted.

Question 83

Sanctions subject to which review standard?

Answer 83

Abuse of discretion

Question 84

Special Verdict

Answer 84

A special verdict is a written finding made by the jury on each issue of ultimate fact. The court submits written questions to the jury correlating to each ultimate fact of the case and asks the jury to make a finding on each fact (e.g., “Was the defendant negligent?”). The court may specifically direct the jury’s response to a question (e.g., “Yes or No”) or may permit the jury to respond with a brief answer (e.g., the percentage of a defendant’s fault in a negligence action). The judge then determines the legal consequences of those findings.

Question 85

General Verdict

Answer 85

A general verdict is typically a decision by the jury as to the prevailing party and, if the plaintiff is the prevailing party, the amount of damages. It is the usual form of a jury verdict in a civil case.

Question 86

General with special interrogatories

Answer 86

This type of verdict couples a general verdict with a special verdict. It is used to ensure that the jury independently considered the material facts of the case in arriving at its verdict. If the answers to the interrogatories are consistent with each other but not with the general verdict, then the court may: (i) approve a judgment that is consistent with the answers, notwithstanding the general verdict, (ii) direct the jury to reconsider its answers and verdict, or (iii) order a new trial.

Question 87

Civil jury

Answer 87

Unless the parties stipulate otherwise, the Federal Rules of Civil Procedure require that a jury verdict be unanimous.

Question 88

Jury instruction. Court’s discretion. party right 으ㄹㅍ어봐

Answer 88

Although the court may require the parties to file jury instructions at the close of evidence or at any earlier reasonable time, a party can file a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court for such requests. Here, because the defendants did not know of the special verdict form until the charge conference, it is unlikely that they could reasonably have anticipated the possible jury confusion that the defendants’ requested instructions sought to address.

Question 89

All-white jurors. Judicial error?

Answer 89

On these facts, the all-white jury may be merely coincidental, and is not conclusive evidence of judicial error.

Question 90

Jury returning the verdict inconsistent with the court’s instructions

Answer 90

When a jury’s verdict does not properly follow the court’s instructions, the court may set aside the verdict and order the jury to resume deliberations. In this case, because the court properly instructed the jury as to the law, the court can order the jury to resume deliberations, and would even be within its discretion to order a new trial.

Question 91

Additur v. Remittitur

Answer 91

Although a federal court is permitted to offer remittitur (a reduction in the damages awarded by the jury) as the means by which the plaintiff can avoid a new trial, a federal court is not permitted to offer additur (an increase in the amount of damages awarded by the jury) as the means by which the defendant can avoid a new trial.

Question 92

Interlocutory orders immediately appealable as of right

Answer 92

Any order granting or modifying an injunction

Any order that changes or affects possession of property

Question 93

Discretionary interlocutory appeal

Answer 93

Any interlocutory order appealable with leave of courts - BOTH trial court and Appellate must agree

Trial court

1. Issue involving a controlling Q of law with substantial grounds for difference of opi
2. The immediate appeal may materaially advance termination of the litigation

Appellate court must then agree

Question 94

Immediate appealability of interlocutory order

Answer 94

Federal courts of appeals may hear appeals from the final judgment of the district courts, but most interlocutory orders are not considered final and are therefore not immediately appealable. If a district court certifies that an immediate appeal would help to resolve an unclear interpretation of a controlling question of law, however, a court of appeals has discretion to allow the appeal if the application is made to it within 10 days after the entry of the order. But such certification must occur.

Question 95

Review standard for District court’s findings of fact

Answer 95

Clearly erroneous

Question 96

Rule 4k2

Answer 96

Also to foreign D. For Rule 4(k)(2) to apply to a foreign defendant, the claim against the defendant must be based on federal law and there must be minimum contacts with the United States to justify personal jurisdiction in federal court. Here, neither of these requirements is met.

Question 97

Passing through. PJ?

Answer 97

N

Question 98

in rem jurisdiction

Answer 98

In general, for in rem jurisdiction to exist, the property at issue must be present within the forum state.

Question 99

Quasi-in-rem jurisdiction requires

Answer 99

Quasi-in-rem jurisdiction requires minimum contacts to exist between the defendant and the forum state before jurisdiction will apply. If the State C court cannot constitutionally assert personal jurisdiction over the defendant, as the answer choice posits, then there is no jurisdiction (either in personam or quasi-in-rem) and the attachment should be quashed.

Question 100

Removal statute.

Answer 100

Under Section 1441(a) of the removal statute, an action may be removed to the federal court in the district where the state action is pending. That removal statute determines venue, regardless of whether venue would have been proper under the venue statute (Section 1391) if plaintiff had originally brought the action in that federal district court.

Question 101

Federal rules on service of rpocess

Answer 101

Service generally may be made within the state in which the federal district court sits by

(i) personally serving the summons and complaint on the defendant,
(ii) leaving the summons and complaint at the defendant’s usual place of abode with a person of suitable age and discretion who resides there, or
(iii) delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.

Question 102

D agrees to waive service. Service date?

Answer 102

If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service of process.

Question 103

Relation back requirement

Answer 103

new Claim/ New party out of a same transaction

Question 104

A party is considered necessary if

Answer 104

f the party’s absence would leave the existing parties subject to a substantial risk of multiple or inconsistent obligations.

Question 105

Whether the court lacks subject matter jurisdiction over a person who has not been joined as a party

Answer 105

can dictate whether the court can order the joinder of the person as a party, but does not determine whether that person is a necessary party.

Question 106

Necessary party. feasible requirement

Answer 106

1. does not deprive of SMJ

2. Court can assert PJ against the nec party

Question 107

Proper 3P claim (impleader)

Answer 107

often contribution/indemnification

Question 108

Impleader. when leave of the court?

Answer 108

more than 14 days after service of original answer

Question 109

notice to the class members, other than the named representatives

Answer 109

For a class action that is certified under Rule 23(b)(1) or (2), notice to the class members, other than the named representatives, is at the discretion of the court.

Rule 23(b)(3) The best notice that is practicable under the circumstances.

Question 110

Under Rule 30, a party may take the deposition of any party or nonparty witness at any time after ————-pursuant to Rule 26(a).

Answer 110

after the party has made its mandatory initial disclosures

Question 111

the court’s decision to order a sanction against the defendant. standard of review

Answer 111

to review under the abuse of discretion standard

Question 112

Pretrial Conf. Sanction?

Answer 112

Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement.

The court may require that a party or its representative be present or reasonably available by telephone or by more sophisticated electronic means to consider possible settlement.

If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action.

Here, the court can direct the women to be available for the pretrial conference because it may facilitate a settlement and expedite disposition of the action.

Question 113

Jury instruction. Objection and preservation for appeal

Answer 113

objections must be

1. on record
2. for stated reasons
3. before jury retires to deliberate

timely objection preserves the issue for appeal.

Question 114

Demand for Trial by Jury

Answer 114

1. Writing
2. Either in a pleading or separate motion
3. No later than 14 days after service of the last pleading directed at the issue

Question 115

number of challenges for cause,

Answer 115

unlimited

Question 116

New Trial requirement re: jury

Answer 116

a party must demonstrate that a juror failed to answer honestly a material question on voir dire, and show that a proper response would have provided a valid basis for a challenge for cause.

Question 117

Perempt Challenge + gender-based reason. Permitted?

Answer 117

No. While peremptory challenges may generally be made for any reason, such challenges may not be made for a gender-based reason.

Question 118

Bench trial. Any court obligation to state on the record?

Answer 118

No. The court is the finder of fact; it must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.

Question 119

Collateral order doctrine

Answer 119

1) conclusively determines the disputed question, 2) resolves an important issue that is completely separate from the merits of the action, and 3) is effectively unreviewable on appeal from a final judgment.

Question 120

n order that appoints or refuses to appoint a receiver

Answer 120

Although generally a district court order that does not constitute a final order is not immediately appealable, there is a special statutory exception for an order that appoints or refuses to appoint a receiver.

Question 121

review Standard for question of law

Answer 121

De novo

Question 122

review Standard for findings of fact

Answer 122

clearly erroneous

Question 123

Clearly erroneous / Plain error / harmless Error

Answer 123

Clearly erroneous - to findings of fact

Plain error - w/r/t jury instructions that affect subst rights

Harmless error - appellate court determines d court’s admission of evidence in error, affected a party’s substantial error. Must disregard all errors that do not affect any party’s substantial rights.