Pretrial Adjudication

Question 1

When is a third party complaint appropriate?

Answer 1

A third-party complaint is appropriate when the defendant contends the third party is liable to it for some or all of the harm.
EXAMPLE: if the defendant simply alleged that the plaintiff sued the wrong party, then the defendant should file a motion to dismiss rather than a third-party complaint.

Question 2

When can two plaintiffs add the amount of their claims together to satisfy the AIC?

Answer 2

If the plaintiffs are suing to enforce a single title or right in which they have a common and undivided interest (narrow and very rare)

Question 3

What law must federal courts sitting in Diversity apply?

Answer 3

Federal courts sitting in diversity must apply federal law to procedural issues and state law to substantive issues.

Question 4

What are examples of substantive issues?

Answer 4

(legal rights and Duties)

• Elements of claim or defense
• Burdens of proof
• Statute of limitations

Question 5

What are examples of procedural issues?

Answer 5

(Processes & Procedures)

• Filing Deadlines
• Court rules & procedures
• Discovery practices
• Rules of evidence

Question 6

How does a federal court determine which state’s substantive law applies?

Answer 6

The federal court must apply the choice-of-law rules of the state where it sits

Question 7

When should a party file a motion for a mote definite statement of a pleading (e.g., complaint)?

Answer 7

When the pleading is so vague or ambiguous that the party cannot reasonably prepare a responsive pleading (e.g., answer).

Question 8

Within how many days must a nonmovant provide a more definite statement in an amending pleading after receiving notice of the order?

Answer 8

Within 14 days after receiving notice of the order or a time otherwise set by the court.

Question 9

What can the court do if a nonmovant fails to provide a more definite statement in an amended pleading within the 14 day time frame or time set by court?

Answer 9

Failure to provide allows the court to strike the pleading or issue another appropriate order.

Question 10

When is a subpoena valid and enforceable?

Answer 10

A subpoena is a written court order that generally commands a person (party or nonparty) to attend and testify at a trial, hearing, or deposition.
A subpoena is valid and enforceable when it:
- contains the contents required by the federal rules

• is signed and issued by the court clerk or an attorney who is authorized to practice law in the court where the action is pending* and
• is properly served in the U.S. through personal delivery by a nonparty who is at least 18 years old.

Question 11

What are the the subpoena content requirements required by the federal rules?

Answer 11

The subpoena contents must state:

(1) court from which subpoena issued,
(2) title of action & civil-action number,
(3) time & place for performance &
(4) person’s rights & duties AND

Must command person to:

• attend & testify at hearing, trial, deposition*
• produce documents, electronically stored information, things and/or
• permit inspection of premises

FRCP 45

Question 12

What is the two-dismissal rule?

Answer 12

Under the two-dismissal rule, a voluntary dismissal of a second action operates as an adjudication on the merits (with prejudice) when the plaintiff voluntarily dismissed:

(1) the first action in federal or state court without a court order and
(2) the second action based on the same claim in federal court by filing a notice of dismissal.

Question 13

How may a plaintiff voluntarily dismiss a suit?

Answer 13

Under FRCP 41(a), a plaintiff may voluntarily dismiss a suit without a court order by filing:

(1) a stipulation of dismissal signed by all the parties or
(2) a notice of dismissal before the defendant serves an answer or a summary judgment motion.

Question 14

When is a voluntary dismissal entered with, and when is it entered without prejudice?

Answer 14

A voluntary dismissal is generally entered without prejudice. This means that the plaintiff can sue the defendant on the same claim in the future.
- However, a voluntary dismissal is with prejudice and operates as an adjudication on the merits when stated in an order, notice, or stipulation of dismissal OR the two-dismissal rule applies.

This rule applies when the plaintiff:

• voluntarily dismissed the first action in federal or state court without a court order and
• voluntarily dismissed the second action based on the same claim in federal court by filing a notice of dismissal.

Question 15

Under FRCP 41, in what two ways can a suit be dismissed?

Answer 15

(1) Voluntary dismissal - when the Plt moves to dismiss the suit
(2) Involuntary dismissal - when the D moves to dismiss the suit

Question 16

When can a D move for involuntary dismissal?

Answer 16

A defendant may move for an involuntary dismissal through rules like (eg, pre-answer motion to dismiss under FRCP 12).
- An involuntary dismissal based on lack of jurisdiction, improper venue, or failure to join a required party is without prejudice.

Under FRCP 41, A defendant can move for an involuntary dismissal if the plaintiff failed to prosecute the case or comply with a rule or court order.
- If the motion is granted, the case will be dismissed with prejudice (unless the court states otherwise) to prevent the plaintiff from suing the defendant on the same claim in the future.

Question 17

Motion for Summary Judgment

Answer 17

Time to file

• Motion may be filed until 30 days after close of discovery OR time set by local rule or court

Burden of Proof

• Movant has initial burden to establish standard
  
  • may support by relying on pleadings, affidavits, declarations, discovery, or other materials containing admissible facts
• If initial burden is met, burden shifts to nonmovant to either:
  
  • show specific disputed facts through affidavits, declarations, discovery, or other materials containing admissible facts (cannot rely on pleadings) or
  • request postponement for additional discovery & support with affidavit or declaration

Standard for grant

• No genuine dispute as to any material fact AND movant entitled to judgment as a matter of law
  
  • evidence must be viewed in light most favorable to nonmovant
  • all doubts must be resolved in nonmovant’s favor

Question 18

Motion for judgment as a matter of law

(FRCP 50)

Answer 18

Time to file

• May be filed after nonmovant presents its case but before case is submitted to jury
• May be renewed within 28 days after entry of final judgment

Procedural requirements

• Movant must:
  
  • specify judgment sought & law/facts entitling movant to judgment

Court must:

• view evidence & draw all reasonable inferences in nonmovant’s favor
• disregard evidence favorable to movant that jury is not required to believe
• not consider credibility of witnesses or evaluate weight of evidence

Standard for grant

• Evidence is legally insufficient for reasonable jury to find in nonmovant’s favor

Question 19

Requirements for class action settlement, compromise, or voluntary dismissal

Answer 19

(FRCP 23(e))

1) Court provides reasonable notice of proposal to all class members
2) Parties file statement identifying agreements made in connection with proposal
3) Hearing & opportunity for members to object*
4) Court finding that proposal is fair, reasonable & adequate

*In “common question” class actions, court may give members second opportunity to opt out.

A federal court has the power to certify (i.e., authorize) the following types of class actions:

1) Prejudicial risk – separate actions would create a risk of (1) inconsistent decisions regarding the parties or (2) impairing absent class members’ interests
2) Common question – common questions of law or fact predominate over individual questions, and a class action is the best method to fairly and efficiently adjudicate the dispute (as seen here)
3) Final equitable relief – injunctive or declaratory relief is appropriate because the opposing party’s actions generally apply to the whole class.

Question 20

Class Action Settlement

Answer 20

Any certified class action can be settled, compromised, or voluntarily dismissed.

When a settlement is proposed to the court, notice of the proposal must be provided to all class members who would be bound by it.

This allows members to object to and opt out of the settlement before the court approves it.

In addition, any proposed settlement must be approved by the court to be valid.

The court may approve such a proposal only after it holds a hearing and issues findings that the settlement is fair, reasonable, and adequate.

Question 21

Preliminary Injunction

Movant must establish that:

Answer 21

1) Grounds*

• movant is likely to succeed on merits
• movant is likely to suffer irreparable harm in absence of relief
• balance of equities favors movant and
• injunction is in public’s best interests
• *Movant also must provide bond to pay costs & damages if nonmovant was wrongfully enjoined.

Order granting injunction must:

2) Contents

• state reasons for issuance
• reasonably describe prohibited or commanded acts and
• state terms specifically

Binds the following persons who receive actual notice of order:

3) Effect

• parties
• parties’ officers, agents, employees & attorneys and
• anyone in active concert or participation with above-listed persons

Question 22

What is a preliminary injunction?

Answer 22

A preliminary injunction is a temporary court order that commands or prohibits certain actions while the case is pending before the court.

This form of equitable relief is extraordinary and granted in limited circumstances since it is issued prior to a full hearing on the meritsof the case.

As a result, a federal court may grant a preliminary injunction only when it is established that:

1) the movant is likely to succeed on the merits
2) the movant is likely to suffer irreparable harm—i.e., an injury that cannot be compensated by monetary damages—in the absence of relief
3) the balance of equities is in the movant’s favor—i.e., the harm to the movant absent an injunction outweighs the harm an injunction would cause to the nonmovant(s)—and
4) the injunction is in the best interests of the public—e.g., enforcement of contractual rights and obligations protects the freedom to contract.

Question 23

Physical & Mental Examinations

Rule 35

Answer 23

_Examination requirements*_ (*Requirements unnecessary if parties stipulate to exam.)

1) Party’s mental or physical condition is in controversy
2) Motion for court order based on good cause
3) Court order issued where suit is pending provides notice specifying time, place, manner, conditions, scope & person performing exam

Examiner’s report requirements

1) In writing & detail all findings (eg, diagnoses, conclusions & test results)
2) Deliver to examined party upon request

Effects of examination

1) By requesting & receiving report, examined party waives any privilege concerning testimony about condition
2) After delivering report, party who sought exam may request & must receive previous reports of examined party’s condition

Question 24

When transfer is sought on the basis of a forum selection clause in a contract, is the clause is accorded respect?

Answer 24

YES.

If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching.

Furthermore, the Supreme Court held that a forum selection clause should be given “controlling weight in all but the most exceptional cases,” even if the clause is unenforceable under applicable state law.

Question 25

What choice-of-law rules must a court apply when venue is transferred based on a valid forum selection clause?

Answer 25

When venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the choice-of-law rules, of the state in which it is located.

The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.

Question 26

Generally, if the venue of an action is transferred when the original venue is proper, the court to which the action is transferred must apply the law of which state?

Answer 26

If the venue of an action is transferred when the original venue is proper, the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law.

Question 27

If a plaintiff’s relief sought is a sum certain or an amount that can be made certain by computation, can the court clerk enter the default judgment on the plaintiff’s request?

Answer 27

YES

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.

Otherwise, the plaintiff must apply to the court for a default judgment.

Question 28

What kind of notice does due process require if the identity and address of an interested party are known or obtainable through reasonable efforts?

Answer 28

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 even if permitted under state statute.
• While state law might provide for notice by publication, federal law controls regarding whether such notice is constitutionally sufficient.

Question 29

When does a plaintiff’s voluntary dismissal have a preclusive effect?

Answer 29

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.

• This is sometimes referred to as the “two-dismissal” rule.

Question 30

When does a genuine issue of material fact exist?

Answer 30

A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party.

Question 31

Can an opposing party rely on allegations or denials in his own pleading if a motion for SJ is properly made and supported by the other party?

Answer 31

NO.

Under Rule 56, a motion for summary judgment is applicable to all civil actions and 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.

If a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in his own pleading.