Midterm April 2 Civ Pro bar Flashcards
Tell me about Federal SMJ in general
Federal SMJ is inherent power for federal court system to exercise power over a CLAIM…
[Context - but that’s not all…for particular federal court to have Original Jurisdiction over a civil claim, it must have not only Federal SMJ but Federal PJ and Federal Venue for that Claim]
Note:
Federal SMJ cannot be waived (unlike PJ)
Federal SMJ cannot be stipulated
For a federal court to have OJ over a civil claim, what must be satisfied?
Must satisfy Federal SMJ AND Federal Personal Jurisdiction AND Federal Venue
Tell me about Federal Question Jurisdiction
FQJis a subtype of Fed SMJ, along with DJ, Supp J and Other J
“arises under Constitution or federal law” per Art III sec 2 cl 1 and 28 USC 1331 test via - Mottley, Holmes, Wellworks
The complaint (not defense, etc) is on its face…
created by federal law
or
created by state law w/ required federal element
NOTES
FQJ, if the basis of the Federal SMJ, means the court must use federal procedure
FQJ does NOT have AIC reqt cf. DJ
Tell me about Federal Exclusive Jurisdiction
Art III sec 2 cl 1
bankruptcy law
patent law
copyright law
securities
maritime law
some federal statutes
don’t confuse with SCOTUS OJ under Art III sec 2 cl 2
Tell me about Concurrent Jurisdiction - OJ
OJ State Jurisdiction AND OJ federal jurisdiction
employment discrim
other statutes
Tell me about State Exclusive Jurisdiction
state contract law
state tort law
family law
state property law
state other statutes
but CAN bump up to federal SMJ via Diversity Jurisdiction or Supplemental Jurisdiction
What is the policy reason, and what are the two main elements required for Diversity Jurisdiction?
The policy reason is to avoid homefield disadvantage against OUT of STATE defendant
Two elements must be satisfied for Federal SMJ of a claim to be based on DJ
AMOUNT IN CONTROVERSY
and
DIVERSITY of CITIZENSHIP
Presumption is that PLAINTIFF, being the party to initiate civil action, will choose to initiate in a plaintiff-friendly forum.
DJ is limited by the “forum-defendant rule” i.e. removal from state to fed court on Diversity Jurisdiction grounds ALONE is not available to IN-STATE defendant b/c DJ is intended for OUT-OF-STATE defendants not in-state defendants.
What is Federal Supplemental Jurisdiction?
Federal SMJ of a claim based on Supplemental Jurisdiction
General:
Common for adding claim
e.g. negligence claim added to breach of contract claim
Common for crossclaim, or counterclaim
Claim 2, having NO independent Federal SMJ
MAY BE ADDED, via Supplemental Jurisdiction to
Claim 1, having independent Federal SMJ
As long as Claim 2 and Claim 1 have “common nucleus of facts”
Yes, even if Claim 2 is based purely on state law
Yes, even if parties of Claim 2 otherwise would destroy Claim 1 Diversity Jurisdiction (unless DJ is SOLE basis of claim 1 Federal SMJ)
How is AIC satisifed for Federal SMJ - Diversity Jurisdiction?
AIC must be GREATER than $75,000
Calc is based on alleged claims, not actual award. CAN include intangibles e.g. humiliation…
Multiple P can aggregate dollar values of their claims agaisnt a single defendant IF
in good faith
AND
“enforcing a common right”
Actual amount awarded is less than or equal to $75,000? All good, DJ still exists
“enforcing a common right” DOES NOT mean similar claims of 2 Ps from 2 totally separate but similar contracts
“enforcing a common right” DOES mean SAME common right of 2 Ps
Single P can always aggregate dollar value of unrelated claim(s), in good faith, against single D
Aggregated claims DO NOT have to be “enforcing a common right”
e.g. ok to aggregate dollar value from two unrelated sets of facts/laws b/c same single P and same single D
Actual amount awarded is less than or equal to $75,000? All good, DJ still exists.
What are the general rules of Diversity Jurisdiction?
Depends on if NATURAL PERSON is a party or ORGANIZATION is a party (see other slides)
Citizenship as of WHEN?
Citizenship of all parties as of** DATE of FILING of ORIGINAL SUIT (DoFLOS)**…∴ don’t be fooled by parties’ locations later at time of filing a “stemming from” suit AFTER DoFLoS (Hudson Q3)
e.g. if State A state court is where divorce decree/alimony claim was made,
Then State A state court retains jurisdiction over not just the divorce/alimony decree, but any later “stemming from” alimony suit challengint the original alimony amount…
∴ don’t be fooled by parties relocating AFTER DoFLoS t (Hudson Q3)
Complete Diversity Required (general rule)!
All Ps and All Ds must have citizenship different from All Ps and All Ds
Exception to “Complete” for Class Action
Named P and Named D must have citizenship different from Named P and Named D (lower bar to achieve DJ)
Exception to “Complete Diversity Required” for Alienage Diverse Citizenship (page 21 Barbri)
[think of LPR in State X the same as US Citizen in State X]
[think: if both parties are non-LPR non-US Citizen, it kills Diversity i.e. state court only
Think of non-LPR non USC as a citizen of state 51]
Diverse citizenship DOES exist for dispute of US citizen vs. non-citizen non-LPR 28 USC § 1332(a)(2)
Diverse citizenship DOES NOT exist for dispute of
non-citizen non-LPR vs. non-citizen non- LPR 28 USC § 1332(a)(2) ??
Diverse citizenship DOES NOT exist for dispute of US Citizen w/ State X residence vs. non-citizen LPR w/ State X residence 28 USC § 1332(a)(2)??
Where does NATURAL PERSON CITIZENSHIP EXIST?
Note: includes LPRs, i.e. citizenship for DJ does not mean actual citizenship. Don’t confuse with in personam PJ.
State where natural person is physically domiciled (objective)
AND
State where natural person is intending to make permanent home (subjective)
Where does natural person citizenship exist (for party acting as executor of decedent as defendant)?
State where executor is representing decedent as defendant 28 USC § 1332(c)(2)
Where does natural person citizenship exist (for party acting as legal rep of infant)?
State of natural person citizenship of infant
Where does natural person citizenship exist (for party acting as legal rep of incompetent)?
State of natural person citizenship of incompetent
Where does ORGANIZATIONAL CITIZENSHIP EXIST for Diversity Jurisdiction purposes?
Where does organizational citizenship exist (general)?
Note: Yes, having citizenship in MULTIPLE states means it will be harder to find Complete Diversity for a case
For an LLC
State(s) where each member has natural person citizenship (like unincorporated association)
For a partnership
State(s) where each partner has natural person citizenship
For a corporation
State(s) where corporation is incorporated
AND
State(s) where corporation has PPoB [from where activities are directed, controlled, coordinated]
How does REMOVAL work and how does REMAND work?
DEFENDANT (not plaintiff) removes
PLAINTIFF (not defendant) remands
Removal by Defendant
General: Allows case to bump from state court to federal court for valid “basis of removal” i.e. fed court has jurisdiction
Removal IS NOT available to Plaintiff
Removal IS available to a Defendant
Exception when Removal IS NOT available to Defendant? When SOLE basis of attempted removal is diversity AND ANY defendant is citizen of forum state in which original state action is pending [reason: DJ is designed to protect OUT-OF-STATE defendant]
Removal is OF RIGHT
i.e. Removal Notice is not subject to state court review or Plaintiff challenge (but see Remand option for Plaintiff)
Requirements of REMOVAL
Removal Notice By Defendants
If attempted with multi-defendant case, requires consent of ALL defendants
Removal Notice By Defendant
Must be filed within 30 days of service of complaint
Removal By Defendant
Must actually occur (actual bump to fed court) not later than 30 days after service of first “removable” document
Remand by Plaintiff
General:
Allows case to bump from federal court to state court after INVALID REMOVAL
Requirements
Must be filed by Plaintiff within 30 days of Defendant filing of Removal Notice
After that period, Remand is waived by Plaintiff
When is Federal Venue Proper and how does Federal Venue Transfer work?
General
§ Venue is Subset of jurisdiction <—not about fed vs. state…more like WHICH district
§ Venue Interacts with Defendant residency
§ Venue Interacts with Personal Jurisdiction
§ Transfer to another Venue can occur for
** interests of party convenience
AND
interests of justice**
Requirements
Opt 1 Proper federal venue is in any district in State X where a defendant RESIDES (if ALL defendants reside in State X)
OR
Opt 2 Proper federal venue is in any district where a SUBSTANTIAL PART of EVENTS LEADING TO LAWSUIT OCCURRED
OR
Opt 3 (Katie Ray ) if option 1 and 2 yield ZERO VENUES, then Proper federal venue is in any district where PERSONAL JURISDICTION exists over the DEFENDANT
BUT Venue selection clause in contract or Forum selection clause in contract can TRUMP all these 3
What is Federal Personal Jurisdiction and what are 4 types?
PJ defined: Inherent power for a federal court system to exercise power over a PERSON or PROPERTY
PJ usually revolves around FAIRNESS and DUE PROCESS to out-of-state defendant
PJ for a federal court is analyzed for federal court as if it were a state court in the state in which the federal court is located (FRCP Rule 4)
PJ can generally be waived
4 types of PJ:
1) In Personam Jurisdiction: power of court over the person of a particular defendant
2) In Rem Jurisdiction: power of court over all persons in the world for a particular piece of property
3) Quasi in Rem Type 1 Jurisdiction: power of court to determine ownership issue of a particular piece of property wrt particular individuals
4) Quasi In Rem Type 2 jurisdiction: power of court to determine non- ownership issue of a particular piece of property wrt particular individuals
Don’t confuse with Natural Person Citizenship with respect to diversity jurisdiction!
How is in personam jurisdiction satisfied?
In personam jurisdiction is one of 4 TYPES of Personal Jurisdiction: power of court over the person of a particular defendant … (other 3 types are in rem, quasi in rem type 1, quasi in rem type 2)
Five ways to satisfy in personam jurisdiction:
Personally serve defendant while defendant is IN STATE
Domicile of defendant is IN STATE
Consent of defendant to be sued IN STATE
Long-arm state statute exists to establish PJ over OUT-OF-STATE defendant
Minimum Contacts by defendant with state establishes PJ over OUT-OF-STATE defendant
2 elements of Minimum Contacts: <—MASSIVE ESSAY TOPIC
Purposeful Availment: Defendant purposefully availed themselves with forum state
e.g. reached out to do business with forum state DOES SATISFY Purposeful Availment
e.g. used roads in forum state DOES SATISFY Purposeful Availment
e.g. made money doing sales in forum state DOES SATISFY Purposeful Availment
e.g. franchisee attended several training sessions and weeklong conference in State X DOES SATISFY Purposeful Availment in State X (burger king!)
e.g. contract clause saying “governed by law of State X” clause alone DOES NOT SATISFY Purposeful Availment (but maybe foreseeability?)
Website Purposeful Availment
systematic and continuous contact DOES SATISFY Purposeful Availment
seeking business DOES SATISFY Purposeful Availment
passive (e.g. informational website w/o sales) interaction DOES NOT SATISFY Purposeful Availment
one-time sale DOES NOT SATISFY Purposeful Availment
AND
Foreseeability: Defendant had notice, or reasonably could have foreseen that defendant’s activities with forum state would “hale [them] into court” of that state
e.g. contract clause saying contractual relationship “is established in State X” and “governed by law of state X” DOES SATISFY Foreseeability of being haled into court of state X
What is the required content of Service of Process documents?
Required Content of SoP x 10
1. Summons
§ COURT issues summons
§ COURT gives defendant 21 days to respond
2. Directed to D
3. Court Name
4. Parties’ Names
5. P Attorney (or P if pro se) Name and Address (or P if pro se)
6. Time and Date to Appear
7. Failure to Appear will result in DJ for P for requested relief
8. Clerk Signature
9. Court Seal
10. Complaint <–important exact Date of Filing of Complaint b/c it affects Required Notice
How long to respond to a summons?
- Summons
§ COURT issues summons
§ COURT gives defendant 21 days to respond
How long to serve process in a civil case?
Within 90 days of Date of Filing of Complaint, must provide notice of lawsuit + copy of complaint
P is responsible for SoP timeliness
P is responsible for providing copies to “person making service”
Acceptable “person making service” and method of serving process in a civil case?
By (“person making service”) Server
18 years old
AND
Not a Party
Court can appt person to serve e.g. marshal or deputy marshal, if requested by P
Court can order “in forma pauperis” i.e. waive fees for P
Reasonable Method (FRCP Rule 4)
To Defendant (i.e. personal service)
OR
To Defendant’s Abode w/competent party (usually 14 yr old resident) aka sub service
OR
To Defendant’s Agent
OR
To Defendant’s Mail (if D previously waived SoP at P’s request)
OR
To State Rule
Defendant out of State?
Registered/Certified Mail (i.e. requiring signature)
If failing –> constructive notice via publication
Defendant is business?
To Defendant Agent
Or
To Defendant Officer
What content (3 things) is required in complaint by Plaintiff?
Required Content (FRCP 8)
Statement of jurisdiction for court
Statement of facts showing plausible claim for relief (more than just possible - Twiqbal) …NOTE that a statement of facts which is “just enough to supportpossible claim “ is NOT plausible
Statement of demand for relief
What are the 7 types of 12(b) pre-answer motions by defendant?
Lack of SMJ <–raise anytime
Lack of PJ <–must raise Before Answer, With Answer, or With Answer Amendment Matter of Right. If not, WAIVED ∴ cannot raise later!
Improper Venue <–must raise Before Answer, With Answer, or With Answer Amendment Matter of Right. If not, WAIVED ∴ cannot raise later!
Insufficient Process <–must raise Before Answer, With Answer, or With Answer Amendment Matter of Right. If not, WAIVED ∴ cannot raise later!
Insufficient Service of Process <–must raise Before Answer, With Answer, or With Answer Amendment Matter of Right. If not, WAIVED ∴ cannot raise later!
Failure to State a Claim upon which Relief Can be Granted aka 12(b)(6) – [Evaluate by Making All Inferences in Favor of Plaintiff] <–must raise before trial or at trial. If not WAIVED ∴ cannot raise later
Failure to join a party necessary for a just adjudication <–must raise before trial or at trial. If not WAIVED ∴ cannot raise later
What is a12(e) pre-answer motion by defendant and how much time does it create?
Pre-Answer Motion by Defendant per 12(e) <–Type of Pleading
Motion for More Definitive Stmt: “pleading…is so vague or ambiguous that party cannot reasonably prepare a response”
Motion for More Definitive Stmt, if granted
gives 14 days – otherwise the pleading is struck
What is the required timing of an 8(b) Answer by Defendant?
What is the required content of an 8(b) Answer by Defendant, and what are the effects?
Required Timing
If Defendant does NOT file pre-answer 12(b) motion
Defendant must Answer with 21 days after complaint
If Defendant WAIVES service of process
Defendant must Answer within 60 days after complaint
Required Content of Answer
(Answer must address Claims and Allegations)
To Each Claim in Complaint:
Raised Defenses
AND
Raised Affirmative Defenses
[Effect of Failing to Raise A Defense]
Waiving of That Defense
To Each Allegation in Complaint:
Admit Allegation
OR
Denial of Allegation
* General Denials FRCP 8(b)(2)
* Specific Denials FRCP 8(b)(3)
* Lacking Knowledge (in effect a denial) FRCP 8(b)(5)
[Effect of Failing to Deny Allegation FRCP 8(b)(6)]
If responsive pleading is required?
Failing to Deny = In Effect Admitted [<–think : responsive pleading requirement penalizes evasiveness]
Exception: allegation relating to amount of damages
If responsive pleading is NOT required
Failing to Deny = In Effect Denied
Whether to file Counterclaims with 8(b) Answer?…
if ARISING out of same transaction or occurrence as Complaint, MUST be filed with Answer aka “compulsory counterclaim”
if NOT ARISING out of same transaction or occurrence as Complaint, MAY be filed with Answer
How and when can a pleading be amended?
Amending a Pleading FRCP 15
Pleading may be amended…
Within 21 days of serving it, one time
OR
By WRITTEN consent of opponent
OR
By Leave of Court upon motion
“Leave of Court” = when court allows something not usually allowed
How do affirmative defenses fit into the initial answer?
Affirmative Defense
Certain affirmative defenses must be raised in initial answer, or those affirmative defenses are automatically waived!
How do default and default judgment work?
Default and Default Judgment
DEFAULT
if Defendant does not Answer within time period, clerk may enter default
Action cannot proceed until Default set aside
Defendant CANNOT contest liability until actual default judgment
Defendant CAN contest amount of damages until actual default judgment
DEFAULT JUDGMENT
may be entered by clerk on request of Plaintiff
What does Rule 11 hold?
Rule 11
Attorney or pro se party is certifying to court that…
The filing is not for improper purpose (harassment, delay, etc.)
The filing has legal contentions that are
warranted by existing law
OR
Non-frivolous arguments for modification of existing law or creation of new law
The filing has allegations that do, or will have evidentiary support after discovery
The filing has denials that will have evidentiary support or reasonably based on lack of information
Filings can BECOME sanctionable
Rule 11 Does NOT apply to Discovery or Disclosures
How does a Rule 11 violation work?
Court may initiate a show cause order upon alleged attorney/firm violator of Rule 11
Opponent may initiate motion to sanction (must serve motion to sanction on opponent AND court) alleged
on attorney/firm violator of Rule 11, and alleged attorney/firm violator has 21 days to withdraw filing
Court can sanction attorney AND attorney’s firm
Court can impose sanctions PRIOR to trial!
Court can impose sanctions for money paid to court!
What is Discovery and what is generally required for an acceptable Discovery request?
Exchange of information or documentation that is…
Non-privileged
AND
Proportional to needs of case
AND
Relevant to claim or defense
Party usually has 30 days to respond to Discovery Request
What is a 26(f) Pretrial Conference?
Should occur before FRCP 16(b) Scheduling Conference
Must occur with parties ASAP
Party authorized to enter into stipulations and make admissions must be present
Attorneys of both sides (unless pro se) must be present
Must consider claims and defenses
Must be followed by submitted Discovery Plan by parties within 14 days
What are 5 items of required content of initial disclosures and in what time frame?
Initial Disclosures: No more than 14 days after Pretrial Conference (unless court gives different time period)
Contact info of individuals who will have discoverable info upon which disclosing party will use to support claims or defenses
Copies of documents, electronic info, tangible things that disclosing party has under their control and disclosing party will use to support claims or defenses
Exception: stuff that would be used for impeachment only
Damages calculations
Insurance agreements
Expert Witnesses identity
What is required content and timing of pretrial disclosures?
No fewer than 30 days before trial
Expected witnesses
Possible witnesses if need arises
Deposition witnesses
Expected documents or exhibits
Possible documents or exhibits if need arises
What steps must be taken with regard to electronic data?
Electronic Data FRCP 37
Reasonable steps to ensure electronic data is not destroyed
Otherwise sanctions may result
How can ACP and WCP protection be overcome?
ACP: communications between atty or atty rep and clien tor client rep for purposes of rendering legal services TO client
WCP: stuff prepared in ancitipation of litigation
Both overcome by substantial need and undue hardship
Cana party still claim privilege over an inadvertent disclosures after the inadvertent disclosure occurs?
Inadvertent Discloser may STILL claim privilege, to which receiving party must comply
What are 3 types of written discovery?
Interrogatories
Can be served on parties and non-parties
Max 25 per party FRCP 33(a)(1)
Cannot be served until after having conference to schedule initial disclosure and discovery plan
Request for Admission
Request for Production
Can be served on parties and non-parties
What are 4 features of depositions?
Can be served on parties and non-parties
Non-parties require subpoena
7 hours/day max
Exception: stipulation by opponent
Exception: court order
10 depos max
Exception: stipulation by opponent
Exception: leave of court
What is a motion to compel?
When opponent fails to respond or respond fully to Discovery Request, the requester may move to compel
What is the purpose of motion for protective order and what time window allows it?
Motion for Protective Order
To protect otherwise discoverable information
To prevent annoyance or undue burdens
Time window: Serve M4PO at least 14 days or more before M4PO hearing
What are summary judgments and what are the features?
M4SJ can be filed until 30 days after Close of Discovery
Must cite specific materials in the record
Available to either party in civil case
“No genuine issue of material factexists, and movant is entitled to JMoL”
M4partialSJ also exist
Responding to summary judgment? Affidavit from expert is better than plain report from expert b/c affidavit is under oath
How to respond to a seemingly premature motion for summary judgment from opponent? If needing more time, more discovery - explain need for more time and declaration of what more discovery you think will support your case
What is JMOL and what are the features?
M4JMOL is available any time before case is submitted to jury - Often at “conclusion of one’s proof”
M4JMOL is considered ON an issue critical to a claim or defense
Standard of “reasonable jury would not have sufficient evidentiary basis”
Granted AGAINST a claim or defense
Raising M4JMOL on issue PRIOR to case going to jury PRESERVES for appeal==that’s why you see attorneys raise JMOLs they will probably lose. One of hardest things to do is to find ISSUE CRITICAL to claim or defense from huge amounts of documentation
<–note cannot appeal until final judgment entered…but can ask for JMOL to preserve before final judgment entered… Exception to preservation for appeal: can still appeal unpreserved issue if trial court made “plain error…i.e. “seriously affects…causes unfair..impact” i.e. would be manifestly unjust not to fix
e.g. very bad trial selection error
What is the time frame for requesting trial by jury in a civil case?
Party desiring jury trial must
Within 14 days of service of last pleading directed to the basis for which Right to Jury exists
File written demand with court
AND
Serve on all parties
Note – Bench trial may be preferred over jury trial if party is worried about jury understanding complex evidence
What is venire and voir dire, and how do jury selection challenges work?
Venire and Voir Dire
Venire:
group of all possible jurors
must be reasonable cross-section of community
Voir Dire:
selection
Peremptory Challenges (limited qty of challenges)
Can be for ANY reason, hunch…(but not beyond a limitt e..g race or gender)…gotta be good faith reasonable effort to show why prospective juror would not be good for your case
Batson v. KY 1986 – racially discriminatory peremptory challenges in crim trial is not permitted
Edmonson - extended to civil
Powell - clarified that race of D does not need to match race of prospective juror
McCulloch - extended to Defense Attorneys
Then extended to gender
For Cause Challenges (unlimited qty of challe nges)
Just clear that the prospective juror could not be impartial, e,g, prosepctive juror says that they hate insurance companies…even a TINY financial stake can ruin impartiality
What are the requirements for Jury Composition(not the selection process, but the final jury)?
Total 6-12 jurors
Must serve unless excused under FRCP 47(c)
Each Must be
- US Citizen
- 18 or older
- Literate
- Fluent in english
- Not mentally/physically infirm
- Not ever charged or convicted w/ crime “for which term of imprisonment is => 1 year”
How are jury instructions created/challenged?
AT close of evidence…
OUTSIDE of PRESENCE of JURY
Judge will inform Parties of Jury Instructions
Judge may hear proposed Jury Instructions from Parties
Judge may hear challenges to Jury Instructions from Parties
Challenges to jury instructions MUST occur to preserve issue of jury instructions…for appeal
Exception to preservation for appeal: can still appeal unpreserved issue if trial court made “plain error…i.e. “seriously affects…causes unfair..impact” i.e. would be manifestly unjust not to fix
e.g. very bad trial selection error
Plain Error is std for unpreserved challenge to Jury Instructions
What are the 2 types of Jury Verdict Forms, who selects them, and what are the features?
Verdict Form
General Verdict vs. Special Verdict
decided by trial court
General Verdict Form:
Find for P or D
Find damages
Implies all essential issues were found in favor of winner
Special Verdict Form:
Find for P or D
Find damages
Find all material conclusions of fact
What is required content of a Verdict of Bench Trial?
Judge must state conclusions of fact
AND
Judge must state conclusions of law
[otherwise, reversible error]
They can’t just announce a judgment and be done with it– must have conclusions of fact and conclusions of law
What are remittutur and Additur?
Remittitur
e.g. BMW v. Gore ~1994 trial court gave astronomical punitive damages
SCOTUS: “shock the consciences” punitive damages violates DPC
∴ Trial Court (pg 105 barbri) may propose remittutur to P or new trial, to avoid appeal by D
Additur (exists in TN)
If P feels jury award is not high enough, may propose additur to D
What is FRCP 59 Grounds for New Trial or Grounds for Further Action?
FRCP 59 - like a resurrection
Motion no more than 28 days after entry of judgment
Grounds for New Trial After Entry of Judgment on Jury Trial
For any reason for which a new trial has heretofore been granted in an action at law in federal court (usually wrt admissibilty of evidence, sufficiency of evidence, error in jury instructions, juror misconduct, excessive verdict, inadequate verdict)
IF the motion is granted, a new trial occurs.
IF M4NT is denied, can appeal the M4NT if the M4NT issue (e.g. admissibility of evidence, sufficiency of evidence, error in jury instructiosn, juror misconduct, excessive verdict, inadeqate verdict) was PRESERVED. Exception to preservation for appeal: can still appeal unpreserved issue if trial court made “plain error…i.e. “seriously affects…causes unfair..impact” i.e. would be manifestly unjust not to fix.
Grounds for Further Action after Entry of Judgment on Nonjury Trial
For any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.
IF the motion is granted, court may reopen to take testimony, amend findings of fact, conclusions of law,
Court may direct new judgment
What is FRCP 60 Grounds for Relief?
FRCP 60
Grounds for Relief from judgment or order or proceedings
No more than 1 year(365 days) after entry of judgment or order
Reasons x 5
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
What are questions of law, questions of fact, mixed questions, and the corresponding appeal review stds?
What rule is used when appellate court evaluates a bad instruction to the jury as to whether it would or would not likely have affected the result of the trial?
Harmless error rule (bar exam uses this term in civ pro which is kind of weird, in real life that is more of a crim pro term)
Max hrs of depo per day unless stipulated?
7 hours per day
Max after Last Pleading Directed to Basis For Which Right to Trial By Jury Exists…that request for trial by jury must be made in civil case
14 days
Max after M4MDS must be responded to, or pleading struck
14 days
Min before motion for protective order (against discovery annoyance/discovery undue burdens) HEARING that M4PO + notice of hearing must be filed
14 days min
Max after 26(f) Pretrial Conference that parties must submit Discovery Plan
AND
Initial Disclosures <–but at least 30 DAYS before trial
14 days max
Max, if service of process not waived, after service of process which D must respond
21 days
Max after complaint which D must Answer (unless D does 12(b) motion)
21 days
Max after pleading, after which 1 amending of pleading must occur w/o written consent of opponent or leave of court
21 days
Max after motion for Rule 11 sanction which alleged violator may withdraw filing targeted by motion for Rule 11 sanction
21 days
Max after entry of judgment which P or D may Motion for New Trial
28 days
Max after Discovery Request which party must respond to Discovery Request w/o extension
30 days
Max after service of complaint which D may file Removal Notice
30 days
Max after Close of Discovery that M4SJ can be filed
30 days
Max after first removable document which D may Remove
30 days
Max after Removal Notice that P may Remand
30 days
Max, if service of process IS waived, after complaint which D must respond
60 days
Max after filing complaint which P must serve process
90 days
What happens if you have wrong venue, wrong PJ, or wrong SMJ?
improper venue results in transfer, while improper PJ or improper SMJ results in dismissal
improper venue can be waived, improper PJ can be waived, improper SMJ cannot be waived
What 4 type of 12(b) motions must be raised Before Answer, With Answer, or With Amendment of Answer AMOR?
Lack of PJ <–must raise Before Answer, With Answer, or With Answer Amendment Matter of Right. If not, WAIVED ∴ cannot raise later!
Improper Venue <–must raise Before Answer, With Answer, or With Answer Amendment Matter of Right. If not, WAIVED ∴ cannot raise later!
Insufficient Process <–must raise Before Answer, With Answer, or With Answer Amendment Matter of Right. If not, WAIVED ∴ cannot raise later!
Insufficient Service of Process <–must raise Before Answer, With Answer, or With Answer Amendment Matter of Right. If not, WAIVED ∴ cannot raise later!
When can lack of SMJ motion be raised?
anytime!
When must failure to state a claim or failure to join a party needed for just adjudication be raised?
before trial or at trial.
If not… WAIVED ∴ cannot raise later
When can a P file notice of voluntary dismissal w/o court order?
Before defendant files Answer
P, not D. R 41(a)(1)(A)(i)
Be intentional about understanding the timeline – I think this is FRCP 41(a)(1)(A)(i) w/o court order, pg 101 Barbri
