MBEs - Civ Pro

Question 1

Jury Trial Request - Federal

Answer 1

FR 38(b)(1) provides specifically that a jury trial demand may be included in a pleading.

Therefore, including it in a properly filed and served complaint secures the right.

Question 2

3rd party complaint failure to state a claim

Answer 2

Under FR 14(a)(1), a defendant may serve a third-party claim on a nonparty “who is or may be liable to it for all or part of the claim against it.” This means that the basis of the claim must be derivative liability (i.e., indemnification or contribution). In order to satisfy the Rule, the manufacturer cannot simply allege that the plaintiff sued the wrong defendant.

Question 3

Failure to respond to a MSJ

Answer 3

The standard for a MSJ is whether there is no geniune dispute as to any material fact such that the moving party is entitled to judgment as a matter of law.

Employer moves for Summary Judgment, alleging former employee was a liar. By challenging the woman’s credibility in their motion, the employer disputed all the facts and evidence plaintiff laid out in her complaint. Because the employer moved for summary judgment on the basis that the woman was not credible, it created a factual dispute.

Question 4

Motion for Judgment as a Matter of Law

Answer 4

Because a motion for judgment as a matter of law takes a case away from the jury, it can be granted only is the court determines that the evidence is legally insufficient to allow the jury to decide the case.

Question 5

Claim preclusion (res judicata)

Answer 5

Claim preclusion prevents claimants from splitting their causes of action; when a claimant loses a judgment, all possible grounds for relief arising out of the same transaction or occurence are barred from future litigation between the same parties.

Question 6

De novo - Appeals

Answer 6

An appellate court applies the de novo standard to trial court rulings on pure issues of law. Because evidentiary rulings involves the application of legal standards to facts - i.e., relevance and prejudice as related to the facts in the case it is not a ruling on a pure issue of law and therefore not subject to de novo review.

Question 7

Abuse of Discretion Standard Appeals

Answer 7

A determination as to whether evidence is irrelevant or highly prejudicial and should be excluded is within the trial court’s discretion because it requires an understanding of the entire case and the factual context in which the evidence is being offered. Therefore, it is reviewed on appeal using the abuse-of-discretion standard.

Question 8

Personal Jurisdiction

Answer 8

Personal jurisdiction (PJ) is the power of the court to enforce a judgment against a defendant by virtue of its power over the defendant’s person or property.

Must object to personal jurisdiction in first response to the complaint (answer or 12(b)(2)) - or else defendant has impliedly consented to personal jurisdiction by waiver. Exception: default judgment –

If the defendant never responded to the plaintiff’s complaint and a default judgment was entered, then D may collaterally attack enforcement of that judgment on the basis that the court lacked personal jurisdiction. The plaintiff then has the burden of proving personal jurisdiction is proper.

Question 9

Aggregate if Claims

Answer 9

Although a single plaintiff may aggregate claims against a defendant, multiple plaintiffs cannot aggregate claims to exceed the $75,000 threshold if their claims are “seperate and distinct.”

Question 10

Venue - Defendants in different States

Answer 10

If all the defendants reside in one state, then venue is proper in any district where any defendant resides in that state. However, where a defendant resides is a proper venue only if all defendants reside within the state.

Question 11

Rule 38 - Jury Trial Demand

Answer 11

Rule 38 states that failure to demand a jury trial within 14 days after service of the last pleading directed to the issue on which a jury is sought results in a waiver of the right to jury trial. However, Rule 39 gives the court discretion to grant a belated motion. Importantly, a court should do so in the abscence of compelling reasons to the contrary.

Question 12

Removal of case from State to Federal Court

Answer 12

If an action that is brought in state court could have originally been brought in federal court, it can be removed to federal court under 28 U.S.C. §1441(a). Only defendants can remove, and if there is more than one defendant, all defendants must consent to the removal.

However, if federal jurisdiction is based only on diversity, a case cannot be removed to federal court if one of the defendants is a citizen of the state in which the case was originally brought.

Question 13

Jury Selection - Implied Bias

Answer 13

Implied Bias is when it is very likely an average person in the same position as the juror would be partial to one of the parties. Even if the juror states he or she can still be fair and impartial, he or she must be excused from the case.

Question 14

Personal Jurisdiction - Def.’s Answer

Answer 14

If a defendant files a pre-answer motion to dismiss and does not raise personal jurisdiction in that motion, the defendant waives any objection to personal jurisdiction.

Question 15

Removal after One-Year not allowed from State to Federal Court

Answer 15

An action cannot be removed to federal court based on diverisity more than one year after the action was commenced in state court.

Question 16

Default judgment

Answers

Answer 16

If a party “failed to plead or otherwise defend,” the opposing party can move for a default judgment under FCRP 55(a). Generally, a defendant must serve an answer “within 21 days after being served with the summons and complaint.” FRCP 12.

Question 17

Crossclaim

Answer 17

A crossclaim is when a party makes a claim against a co-plaintiff or co-defendant. Under FRCP 13(g), a crossclaim must be part of the same transaction or occurrence. However, a crossclaim is always optional.

Question 18

Class action

Answer 18

4 requirements:

(1) Numerosity;

(2) Commonality;

(3) Typicality;

(4) Adequacy.

Question 19

Third Party Impleader - Diversity

Answer 19

When a third party is impleaded into the plaintiff’s diversity action and that party is a citizen of the same state as the plaintiff, the plaintiff may not amend the complaint to add the third-party defendant as a defendant to the plaintiff’s claim.

It is clear that the plaintiff could not have originally named the third-party defendant (here, the bos driver) in her original complaint because she and the bus driver are both from State A. This rule prevents a plaintiff from avoiding the diversity requirement by simply suing only defendants with diverse citizenships and waiting for them to implead defendants who are non-diverse.

Question 20

Federal Venue in General

Answer 20

A civil action may be brought in—

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action

Question 21

Business Associations - 16(b)

Answer 21

The rule prohibits a director, officer or 10% shareholder of a publicly traded corporation on a national stock exchange or with assets of $10,000 and 500 shareholders from purchasing and selling or selling and purchasing stock of the corporation in less than 6 months. The corporation is entitled to the maximum difference between any sale and purchase during this 6 month period.

Question 22

Business Associations - 10(b)5

Answer 22

The rule prohibits the use of an instrumentality of interstate commerce in any scheme to defraud make material misrepresentations or omissions or in any other way use fraud in the purchase or sale of securities. An insider must either disclose inside information or not trade in the securities. An insider may also be liable for tipping information regarding the company for an improper purpose.

Question 23

Business Associations - 10(b)2

Answer 23

A tippee is only liable if the tippee knew that the tipper was giving them non-public information for an improper purpose.

Question 24

Scope of Appellate Review

Civ Pro

Answer 24

1. Errors of law: “de novo” review, appellate court owes no deference to the ruling of the trial court. IE..error in jury instructions wrong, even with evidence supporting the case, finding has to be based on proper jury instructions.
2. Discretionary rulings: Appellate court won’t substitute discretion for trial judge, absent “abuse of discretion” by trial judge.
3. Findings of Fact by Jury: Appellate courts don’t make functional factual determinations. Can review factual determinations to assure sufficiently justified by the evidence. Merely tests legal sufficiency.
4. Findings of fact by judge (nonjury trial): must be “clearly eroneous”
5. Trial De Novo (new trial): Legislation may sometimes authorize a trial de novo, which is in effect, a new trial in a high court. Generally limited to review of trial courts that exercise minor jurisdiction, as a court of small claims, and which make no record of their proceedings.