Paper

Question 1

Issue Preclusion

Answer 1

A judgement binds a P/D in subsequent actions on different causes of actions between them as to the issues actually litigated and essential to the judgement to the judgement to the first action.

• with collateral estoppel, the issue is deemed established in the 2nd case without proffering evidence

Requirements:
1) First case endes with a FINAL JUDGMENT on the MERITS

2) Issue was actually LITIGATED and DETERMINED

3) The issue was ESSENTIAL to the judgment
- without the issue, the judgment in case 1 would be different

4) Against whom is the collateral estoppel (issue preclusion) being used.
- Collateral estoppel may be asserted ONLY against someone who was a party to the previous case.

5) By whom is collateral estoppel use.
- under traditional mutuality rule, only someone who was a party in the previous case use collateral estoppel.

• NV: Defensive:
  
  • allows someone not party in the previous case bring collateral estoppel, if other party has a full chance to litigate on the case.
• NV: Offensive
  
  • Plaintiff in case two, not in case 1. They don’t have a right to bring.

Question 2

Motion to Dismiss

Failure to State a Claim

Answer 2

Allows a Defendant to dismiss for failure to state a claim.

• It tests only the suffering of the allegation in the complaint.
• The court will assure that all the allegations in the complaint are true, and then determine if the elements of the cause of action have been met.

Question 3

Motion to Dismiss

Summary Judgment

Answer 3

When a 12(b)(6) “failure to state a claim” motion is improperly submitted w/ extraneous evidence attached, a court may treat it as a FRCP 56 motion for summary judgement.

Summary judgment will be granted if
1) there is no genuine issue of material fact, and

2) The moving party is entitled to a judgment as a matter of law.
* when decided a SJ, the court will determine the Pleading, affidavit, and discovery material on file.

Question 4

Sanction

Answer 4

Requires a motion for sanction t be served on the offending party before it is filed.

• the offending party then has 21 days to take corrective action before a motion is filed.

Sanction Against Counsel
* An attorney for a party to litigate may be personally sanctioned for attorney’s own conduct.

Question 5

Nevada

Scope of Discovery

Answer 5

May be broader than Fed Rules, allowing for any information “relavant to subject matter.”

Question 6

Motion to Set aside Default Judgment

Under Rule 60

Answer 6

A Party may make a motion to set aside a judgment if the judgment was a result of:

1) Mistake
2) inadvertence
3) Fraud
4) Newly discovered evidence
5) Excusable Negligence.