Review

Question 1

(Civ Pro) Amount in controversy for counterclaims

Answer 1

A counterclaim in a diversity action does not have to meet the $75,000 jurisdictional minimum if the counterclaim is compulsory

A counterclaim in a diversity action does have to meet the $75,000 jurisdictional minimum if the counterclaim is permissive

Question 2

(Civ Pro) Removal

Answer 2

If the well-pleaded complaint discloses that the plaintiff has a federal claim, then the defendant may remove to federal court

BUT if the plaintiff’s clam arises under state law, defendant may not remove even though defendant has a federal defense

Question 3

(Civ Pro) New rule for in personam jurisdiction for corporations

Answer 3

Substantial and continuous in-state activity does not give the state jurisdiction over a foreign corporation for claims having no territorial affiliation with that state.
General in personal jurisdiction reaches only those corporations that are “at home” in the state (can be sued on any claim). Includes:
Corporation incorporated in the state; and
Corporation with its principal place of business in the state (the executive offices/nerve center)

Simply doing business in the state does NOT give rise to general personal jurisdiction if the claim is wholly unrelated to the in-state activity

Question 4

(Civ Pro) Twombly & Iqbal

Answer 4

Need more detailed complaints
These cases allow district judges to dismiss, before discovery, complaints that they think are obviously unfounded.

These cases could be raised by an essay question on the bar exam.

Question 5

(Civ Pro) Impleader

Answer 5

A device by which the defendant brings into the suit someone who is or may be liable to the defendant for all or part of the plaintiff’s claim against him. Includes:
Contribution for joint tortfeasors; and
Indemnity for subcontractors
[Cf. Interpleader - which is bringing people to court to fight over who owns property]

Question 6

(Civ Pro) Scope of discovery

Answer 6

General rule is RELEVANCE.
You can discovery anything that might be admissible at trial OR that might lead to something that might be admissible at trial

Discovery is not limited to admissible evidence.

Question 7

(Civ Pro) Work product rule

Answer 7

The attorney work product rule protects
Documents and things (not information)
Prepared in anticipation of litigation

By or for another party or her representative.
(You can never discover the mental impressions of an attorney)

Question 8

(Civ Pro) Overcoming work product rule protections

Answer 8

Can be overcome if the party seeking discovery shows
Need for the document or things; and
That information cannot be obtained elsewhere.
(You can never discover the mental impressions of an attorney)

Question 9

(Civ Pro) What is the effect of former adjudication?

Answer 9

1) Is the claim in the second suit precluded by the prior adjudication?
A final judgment on the merits of a claim bars re-litigation of that claim by the same parties or those in privity with the parties.
2) If not, is the issue in the second suit precluded by the prior adjudication
Issue preclusion when:
The same issue of fact arises in two suits;
That issue must have been actually and necessarily decided in the first suit; and
The party to be precluded must have been a party to the first suit

[Default judgment - results in full claim preclusion, but nothing is actually litigated so no issue preclusion.]

Question 10

(Civ Pro) Venue transfer - choice of laws

Answer 10

If venue is transferred under the change of venue rules of 28 U.S.C. § 1404, the new court must apply the law of the state of the transferor court, including that state’s rules regarding conflict of laws.

Question 11

(Civ Pro) Jury’s special interrogatories and general verdict

Answer 11

When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the jury’s answers to those interrogatories conflict with each other, the court cannot approve the entry of the general verdict.

Question 12

(Civ Pro) Right to amend a complaint

Answer 12

A party may amend a pleading once as of right if a responsive pleading is required, within 21 days of service of the responsive pleading, or within 21 days of being served with a motion to dismiss under Rule 12(b), whichever is earlier.

Question 13

(Civ Pro) Proper transfer

Answer 13

In order for a federal district court to transfer an action to another federal district court for the convenience of the parties and witnesses and in the interest of justice, the transferor court must determine that the action could have been initiated in the transferee court or that all parties consent to the transfer. It is not sufficient that the transferor court merely determines that the transfer would be convenient for the parties and witnesses and in the interest of justice.

Question 14

(Civ Pro) Party objection to improper jury instruction

Answer 14

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 15

(Civ Pro) SMJ for Interpleader

Answer 15

A federal action based on interpleader pursuant to Rule 22 requires that the general rules for subject matter jurisdiction be satisfied. For diversity jurisdiction, the citizenship of the party bringing the action must be completely diverse from that of the claimants and the statutory amount in controversy must be met. The claimants need not be diverse among themselves.

Question 16

(Civ Pro) Timely filing motion to strike

Answer 16

If a pleading contains an insufficient defense, a party must move to strike the defense from the pleading either before responding to the pleading or, if a responsive pleading is not permitted, within 21 days after being served with the pleading.

Question 17

(Civ Pro) Appeal denial of class certification

Answer 17

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

Timing. A petition for permission to appeal a certification order must be filed within 14 days of the entry of the order.

Question 18

(Civ Pro) Request for admission

Answer 18

Under Rule 36, a party may serve upon any other party a written request for the admission of any relevant, nonprivileged matters discoverable under Rule 26. A matter will be admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney.

Question 19

(Civ Pro) Physical examination

Answer 19

This requires “good cause” but “good cause” can be shown simply by the fact that the plaintiff puts the physical injuries in controversy

Question 20

(Civ Pro) 12(b)(6) Failure to state a claim upon which relief can be granted

Answer 20

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court must take all well-pleaded facts in the complaint as true and resolve all doubts and inferences in the complainant’s favor.

Question 21

(Civ Pro) SMJ over defendants contribution claim against third party defendant (impleader)

Answer 21

If federal question, then automatically has jxd

If diversity jurisdiction, need diversity between the defendant and third party defendant, and amount in controversy

Question 22

(Civ Pro) Timing for motion for new trial based on juror’s disqualification

Answer 22

A party may file a motion for a new trial within 28 days of the entry of judgment.

Question 23

(Civ Pro) Timing for filing notice of appeal

Answer 23

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.

Question 24

(Civ Pro) Probate exception to diversity jurisdiction

Answer 24

While federal courts generally do not exercise diversity jurisdiction over probate matters, this restriction is narrowly construed and primarily applies to the probate of a will or the administration of a decedent’s estate.
[Does not apply to paid-on-death accounts]

Question 25

(Civ Pro) Jurisdiction for statutory interpleader action

Answer 25

Amount in controversy is merely $500

Minimal diversity

Question 26

(Civ Pro) Voluntarily dismissing a cross-claim

Answer 26

A party may voluntarily dismiss a cross-claim (or a counterclaim or third-party claim) without the approval of the court or the consent of the parties before a responsive pleading is served, or if there is no responsive pleading, before evidence is introduced at a hearing or trial. The service of a summary judgment motion by a co-party with respect to a cross-claim (or counterclaim or third-party claim) does not cut off a party’s ability to voluntarily dismiss the claim without court approval or the consent of the other parties. This occurs only after evidence is introduced at the court hearing on the motion.

Question 27

(Civ Pro) Jurisdiction for rule interpleader

Answer 27

Needs complete diversity and amount in controversy ($75k+)

Cf. Statutory interpleader

Question 28

(Civ Pro) Giving the other party notice when requesting a temporary restraining order

Answer 28

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 29

(Civ Pro) SMJ for joinder of unrelated claims against same defendant

Answer 29

A party asserting a claim may join even unrelated claims against the opposing party if the court has subject-matter jurisdiction over the new claims. If the original claim is based on federal-question jurisdiction, then a nonfederal claim may be joined only if diversity jurisdiction exists or if the new claim arises out of the same case or controversy as the initial claim such that supplemental jurisdiction applies.

Question 30

(Civ Pro) Proper service of an Answer to a complaint

Answer 30

A defendant has 21 days after being served with the complaint and summons to serve an answer unless the defendant responds by filing a pre-answer motion under Rule 12. An answer generally must be served on plaintiff’s attorney if the plaintiff has an attorney. Service of an answer may be made by leaving it with a person in charge at the attorney’s office. The answer must also be filed with the court clerk within a reasonable time after service.

Question 31

(Civ Pro) Does defendant need to deny damages, will silence be treated as admission?

Answer 31

Defendant doesn’t need to deny damages; these won’t be admitted by default

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 32

(Civ Pro) Standard for summary judgment

Answer 32

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. A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party. In ruling on a motion for summary judgment, the court must construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of the nonmoving party.

Question 33

(Civ Pro) Demand for jury trial

Answer 33

Any party may make a jury trial demand with regard to an action at law, which includes any claim for damages. The right to trial by jury is evaluated for each claim.

Question 34

(Civ Pro) Right to jury in civil matter: procedural or substantive?

Answer 34

○ In diversity actions, a federal district court is generally bound by the conflict-of-law rules of the state in which the district court is located. Questions about the right to a jury trial are considered procedural and are determined by the law of the forum state.

Question 35

(Civ Pro) Polling the jury

Answer 35

There is a right under FRCP 48(c) to request a polling of the jury… the judge is required to do this

Question 36

(Civ Pro) Initial disclosures

Answer 36

Mandatory. At or within 14 days of the discovery conference.

Question 37

(Civ Pro) Pretrial disclosures

Answer 37

Under Rule 26(a)(3)(B), pretrial disclosures must be made at least 30 days before trial. Pretrial disclosures include the name and, if not previously provided, the address and telephone number of each witness, separately identifying those a party expects to present and those it may call if the need arises.

Question 38

(Civ Pro) Judge excusing juror

Answer 38

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.

Question 39

(Civ Pro) Requirements for one plaintiff to sue two defendants

Answer 39

In order to join defendants in a single action, the plaintiff’s right to relief must be asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction or occurrence.

Question 40

(Civ Pro) Bulge jurisdiction

Answer 40

Under Rule 4(k)(1)(B), a federal court has personal jurisdiction over a third-party defendant, joined under Rule 14, who is served within a U.S. judicial district and not more than 100 miles from the court from where the summons is issued (the federal district court), even if state law would otherwise not permit such service.

Question 41

(Civ Pro) Pleading special damages

Answer 41

When a plaintiff seeks special damages, the plaintiff is required to plead such damages with specificity.

Question 42

(Civ Pro) JMOL - Motion for judgment as a matter of law

Answer 42

In considering a motion for judgment as a matter of law, the court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party. It may not consider the credibility of witnesses or evaluate the weight of the evidence. A determination of the credibility of witnesses and the weight given to evidence must be made by the jury.

Question 43

(Civ Pro) Timing for impleader

Answer 43

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 44

(Civ Pro) Depositions (limits)

Answer 44

The 10 depo limit applies to all defendants (and all plaintiffs) as a group
So, co-defendants each with separate counsel, cannot each do 10 depos, the two co-defendants have to share 10 depos
Unless there is leave of the court
Without leave of court, the plaintiffs, the defendants, and the third-party defendants, each as a group, are limited to 10 depositions by oral or written examination. Unless the parties agree to the deposition, leave of court must be obtained to exceed the 10-deposition limit. If leave of court is granted, a group may exceed the 10-deposition limit.

Question 45

(Civ Pro) Plaintiff brings (joinder) third party claim against third party defendant… what’s required?

Answer 45

Needs to arise out of same transaction or occurrence.
A plaintiff may file a third-party claim against a third-party defendant, but the claim must relate to the same transaction or occurrence as the original complaint.

This is true even when the court has subject matter jurisdiction over the joindered claim

Question 46

(Civ Pro) Defendant seeks leave to amend answer after discovery to plead affirmative defense

Answer 46

Generally, the Defendant’s answer must state any avoidance or affirmative defense that the defendant has, or that is deemed waived. However, the Rules also provide that pleadings can and should be amended by leave of the court when justice requires it. Courts will generally permit the amendment unless it would result in undue prejudice to the opposing party.

Question 47

(Civ Pro) Renewed JMOL

Answer 47

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

The 28-day time period starts at the entry of judgment, not upon the discharge of the jury.

Question 48

(Civ Pro) Disclosing testifying experts

Answer 48

Must disclose all testifying experts at least 90 days before trial
But can do so closer to trial if substantially justified or was harmless:

Under Rule 37(c)(1), if a party fails to make or supplement its automatic disclosures as required by Rules 26(a) and (e), then the party will not be permitted to use the documents or witnesses that were not disclosed unless the nondisclosure was substantially justified or was harmless.

Question 49

(Civ Pro) Types of verdicts

Answer 49

The Federal Rules of Civil Procedure permit the use of three forms of a jury verdict—general, general with special interrogatories, and special. The choice of which form of verdict the jury must return is left to the discretion of the court. Unless the chosen form of verdict constitutes an abuse of discretion, a party’s challenge to the form selected by the court is unlikely to be successful.

Question 50

(Civ Pro) Discovery of liability insurance agreements

Answer 50

Mandatory disclosure
Unless otherwise agreed by stipulation or ordered by the court, each party must provide to the other parties for inspection and copying, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
Tthe defendant is required to make the insurance agreement available to the plaintiff even if the plaintiff does not ask for it

even if the insurer is not joined as a party to the litigation, the defendant is required to provide the agreement to the plaintiff.

Question 51

(Civ Pro) Failure to prosecute

Answer 51

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 52

(Civ Pro) Sufficient notice and due process

Answer 52

Even if no actual notice, a party can still be “on notice” and receive default judgment against them if service was reasonably calculated to apprise the defendant of the pendency of the action and afford the defendant the opportunity to present its objections.