Semester 2 Flashcards
1
Q
What puts all potential claimants in one suit to avoid multiple inconsistent judgments?
A
Interpleader
2
Q
What are the 2 types of interpleader?
A
Rule (regular) interpleader under R22, all rules of jurisdiction, service, and venue apply.
Statutory interpleader allows for diversity between any 2 claimants, an AIC of $500, and nationwide jurisdiction.
3
Q
Under R23, what must be satisfied to certify a class?
A
Numerosity, commonality, Typicality, Adequate representation. Also the class category is one of Incompatible Standards, Limited Funds, Injunctive Relief, Damages.
4
Q
What is a class category of Incompatible Standards?
A
Members of the class would risk inconsistent or varying adjudications individually.
5
Q
What is a class category of Limited Funds?
A
The number of claims exceed the amount available to satisfy them.
6
Q
What class category is based on Predominance and Superiority?
A
Damages class category, where predominant questions of law or fact are over individual questions, and class action is the superior method of adjudicating.
7
Q
Under Rule 26, what is the scope of discovery?
A
Any non-privileged matter relevant to claim or defense of any party and proportional to the needs of the case.
8
Q
How is discovery relevance different than evidentiary relevance?
A
In terms of discovery, relevance is much broader than evidence. Admissibility is not a determining factor.
Reasonably calculated to lead to the discovery of admissible evidence.
9
Q
What is considered for the proportionality of discovery?
A
- Importance of the issues at stake.
- Amount in Controversy.
- Relevant access to the information.
- Resources of the parties.
- Importance of discovery to resolving out of court.
- Burden and expense weighed against benefit.
10
Q
What must be included in a discovery certification?
A
Any disclosure or discovery request/response must be certified that it is correct as of time made, consistent with the rules, for proper purpose, and not unduly burdensome.
11
Q
What can a party do to limit requested discovery?
A
R26(c) allows for a protective order to limit discovery. This can prevent annoyance, embarrassment, undue burden or protect trade secrets. It may also ask that production be of a certain format.
12
Q
What is required prior to seeking a discovery protective order?
A
Parties must attempt to meet and confer prior to seeking a protective order on discovery.
13
Q
How is discovery limited by rule?
A
Discovery must be nonprivileged and proportional by rule. Discovery can be further limited if unreasonably cumulative, easily obtainable elsewhere, outside the scope or already had ample chance to obtain.
14
Q
Who may be ordered to produce discovery?
A
Any party to the case may be ordered to produce discovery. Also, non parties can be ordered to produce discovery under a R45 subpoena.
15
Q
Who has the burden in discovery disputes?
A
The requester must show request is relevant. If arguing trade secrets/burdensome, the responding party has the burden.
16
Q
What is ESI?
A
ESI is electronically stored information.
17
Q
How is ESI specifically limited?
A
R26(b)(2)(B) places limits on ESI if not reasonably accessible because of undue burden or costs. If responding party shows not reasonably accessible, the court can still order production if requesting shows good cause.
18
Q
When discovery is unduly burdensome, the court may shift costs. What factors are considered for cost-shifting?
A
The court will consider:
Extent request is specifically tailored to relevant info,
Availability from other sources,
Total costs of production compared to AIC and resources,
Ability of either to control costs,
Importance of issues at stake,
Relative benefits to the parties.
19
Q
What is Attorney-Clint privilege in Civil Procedure?
A
Attorney client privilege mirrors evidence. Statements made between the attorney and client, or representatives.
20
Q
What is an Upjohn warning?
A
An Upjohn warning provides notice to employees of a company that an attorney works for the company and not the employee, statements by employees may not be protected.
21
Q
What is the work-product doctrine?
A
The work product doctrine protects documents and tangible things prepared in anticipation of litigation from discovery. However a court may order those disclosed upon a showing of substantial need.
22
Q
What is never discoverable as work product?
A
The mental impressions, conclusions, opinions, or legal theories of a parties attorney are always protected.
23
Q
What test is used to determine if material was prepared in anticipation of litigation?
A
The majority use a “because of” test to determine if material was prepared in anticipation of litigation.
24
Q
What is a Privilege Log?
A
Under R26(b)(5), when information is withheld as privileged, a log must note the nature of information not disclosed in a manner that will allow parties to assess the claim without revealing the information.
25
What is the result of an inadvertent disclosure of privileged information?
When the party holding the privilege notices, the party must notify the receiver and the receiver must return or destroy. FRE 502 limits waiver when reasonable steps were made to prevent and promptly rectify, but it may extend to the subject matter if fairness dictates.
26
What are the ethics rules regarding inadvertent waiver of the privilege?
Professional Responsibility rules require the receiver not to look and notify the sender when found.
27
What is disclosure is required concerning expert witnesses?
When an expert may testify, the party must disclose a statement and basis of opinions, facts and data used, supporting exhibits.
The proponent must also disclose the experts qualifications, publications the last 10 years, other expert cases, and compensation.
28
When is a retained expert information not required disclosed?
When the expert is employed for trial prep only, and is not expected to be called as a witness.
29
What are the 5 general discovery devices?
```
Initial required disclosures;
Requests for Production;
Interrogatories;
Depositions;
Physical or Mental Examinations
```
30
What is required in the initial disclosures?
Name, Address and Contact of those likely to have info disclosing party may use.
Copy or good description of tangibles that may be used.
Computation of damages by claim.
Any insurance agreements that may be liable.
31
Who can be subject to RFP (request for production)?
Any party, or non-party via R45, may be subject to Request for Production of things in possession/control/custody. Once notified, a response is required within 30 days.
32
What are specific considerations for RFPs concerning ESI?
Is ESI if requested, any metadata must be relevant and expressly requested. ESI should be produced as usually kept or organized in usable form, unless otherwise agreed.
33
What limited are placed on Interrogatories?
Interrogatories are limited to 25 questions, included discreet subparts. Only parties are required to answer interrogatories.
34
Who may be required to give depositions?
Both parties and non-parties can be required to give depositions. Any objections must be non-argumentative/non-speaking, and are reserved unless privileged, court ordered, or a motion to terminate.
35
When may a party be required to undergo a medical examination?
When the findings would be in controversy or at issue, the requesting party shows good cause, and the court issues an order.
The submitted party may get a copy of the examination upon request.
36
What happens if there is a discovery dispute?
The parties are required to attempt meet and confer first. If no resolution, then a motion to compel is filed. The motion to compel must certify to good faith efforts of resolution.
37
What sanctions are available if a motion to compel is ignored?
```
A court may:
Accept all facts as true,
Prevent sanctioned from bringing withheld info,
Dismiss or default,
Strike pleadings,
Order reasonable costs.
```
38
What is considered to find spoliation?
The duty to preserve the thing, Culpable behavior, and relevance & prejudice.
39
When is there a duty to preserve evidence?
A duty to preserve begins with:
Reasonable anticipation of litigation, OR
Statutory duty, OR
Receipt of a preservation letter.
40
What sanctions are available for ESI spoliation?
```
Under R37(e), sanctions for ESI spoliation are:
No greater than necessary to cure prejudice, unless there was intent- then:
Adverse Interest applied,
Instruct may presume unfavorable, OR
Dismiss or default judgment.
```
41
When is spoliation of ESI not sanctioned?
When unintentional and reasonable steps to preserve were taken.
42
When may a court enter a default judgment under R55?
When a party fails to plead or defend a court can enter a default judgment. If sum certain the clerk may enter, otherwise the court must enter.
43
What considerations are given to minors and incompetents under default judgment.
A minor or incompetent must have representation, and judgment may not be entered by the clerk.
44
When is a party considered in default?
If a party is non-responsive for 21 days after service.
45
When can a court set aside a default judgment?
A court can set aside a default for good cause, considering:
A meritorious defense of the moving party,
Reasonable promptness of the movant,
Personal responsibility of default party,
Prejudice to party,
History of delay action,
Available lesser sanctions.
46
What damages are available in a default judgment?
Damages are limited to that listed in the complaint. The court can conduct an accounting, determine damages, establish truth, investigate any matter.
47
What is the exception for default judgment appearance time limits?
If non-appearance was due to military service, the time to appear is extended to 90-days.
48
What are the 2 types of dismissal under R41?
Involuntary (b) and Voluntary (a).
| Involuntary dismissal occurs where the plaintiff fails to prosecute within the rules and is generally with prejudice.
49
What are the guidelines for Voluntary dismissal?
Voluntary dismissal is where the plaintiff moves to dismiss. If no answer or R56 has been filed, this can happen without consent if notice is given.
After a responsive pleading, a court order is required. These are generally dismissed without prejudice and any counterclaims remain pending.
50
What is the 2 dismissal rule?
Generally after 2 voluntary dismissals, the court will issue final adjudication.
51
What are 3 major matters listed for a pre-trial conference under R16(c)(2)?
A- specifying issues and eliminating frivolous claims/defenses;
E- determining appropriateness and timing of R56 adjudication;
I- settlement and special procedures (mediation, etc.)
52
If parties fail to conference, the court can...
Issue any just orders, including fees and reasonable costs (incl attorney fees).
53
What is a R68 offer of judgement?
No less than 14 days pre-trial, a defendant can offer a specific settlement. If this is declined and the final judgment is not more favorable, they must pay the costs incurred after offer.
54
What is the distinction between a 12(b)(6) and a R56?
12(b)(6) looks strictly at issues of law. R56 Summary Judgment considers evidence.
55
Who can file a R56 motion, and when?
Either party may file a motion for summary judgment to dismiss all or part of each claim of defense.
Summary judgment may be filed at any time until 30 days after discovery.
56
What is the standard for summary judgment?
Summary judgment is granted when there is "No Genuine Basis of Material Fact"
57
What is included in the process of Motion for Summary Judgment?
The moving party makes a motion of specific claims/defenses to dismiss, including a narrative statement of undisputed facts and makes an argument that the evidence is lacking facts to support MSJ.
58
What evidence is considered in an MSJ?
Any evidence obtained during discovery processes, except that the evidence must be admissible.
If inadmissible, the responding party must object to strike such inadmissible evidence.
59
How are inferences read in an MSJ
All inferences are read in favor of the non-moving party.
60
What provides the right to jury in a civil trial?
The 7th Amendment. Right to jury in suits of common law is preserved as of 1791.
61
When a suit has both questions of equity and common law, how is a jury right determined?
Based on the 2-part Terry test, the court will compare the action to 1791 actions, AND examine the remedy sought (either legal or equitable).
More weight is given to the remedy portion.
62
When a suit has both legal and equitable issues to be determined, how does the jury right apply?
Legal issues can be determined by a jury, and any remaining equitable issues will be determined by the bench.
63
When is a jury demand required?
A jury demand must be within 14 days of the last pleading. If not demanded, then waived.
64
When is a jury waiver reconsidered?
A waived jury demand may be requested on motion under R39(b). If there are no compelling reasons contrary then it is often granted (circuits split).
65
How does a counter-claim or amended pleading impact a jury demand waiver?
A counter-claim or pleading amendment after the jury demand waiver has passed is renewed for another 14-days.
66
What are the 2 types of juror challenges?
For cause challenges and peremptory challenges. In the federal system, each side gets 3 peremptory challenges.
67
What are the limitations on peremptory challenges?
Peremptory challenges can not have a discriminatory purpose based on race (Edmonson) or gender (JEB).
68
What rule sets out Judgment as Matter of Law, and what is required in the Motion?
Rule 50 says a JMOL may be any time before submitted to the jury, and must specify the judgment sought and law & facts that entitle judgment.
69
When is a JMOL granted?
The standard for granting a JMOL is insufficient evidence. Substantial evidence is required to defeat a JMOL motion.
70
What evidence is considered in a JMOL?
All evidence before the court that has come from discovery, with inferences read in favor of the non-moving.
71
What is required before a RJMOL can be heard?
A previous JMOL motion preserves the right to make a RJMOL motion at the close of all evidence or within 28 days of the verdict.
72
What may a court do in response to a RJMOL?
The court may allow judgment on the verdict, order a new trial, or direct judgment NOV.
73
What is the result of a failure to make a RJMOL?
Appeals on the sufficiency of the evidence are not preserved absent a RJMOL on the verdict.
Appeals on other errors are not negated.
74
What is generally the baseline for jury instructions?
Pattern Jury Instructions are a baseline for jury charges. Federal PJI are supplemented by states as needed based on the issues, and may be adjusted based on case or statutory laws.
75
What are the 2 types of verdicts?
Special verdicts and General verdicts. General verdicts are the most prevalent and may have written interrogatories (special questions of specific facts).
76
What rule is Motion for a New Trial?
Rule 59 is Motion for a New Trial.
77
When must a Motion for a New Trial be filed?
A Motion for a New Trial must be filed within 28 days of the judgment. (Not the verdict, but the judgment of the court).
78
What actions may a court take on a Motion for a New Trial?
The court can Affirm the Trial finding, OR
| Can order a New Trial.
79
When may a JMOL be made?
A JOML may be filed at any time before submission to jury. Generally JMOL is made at the close of Case in Chief and possibly again at close of evidence. In no case can JMOL be filed after 28 days from judgment.
80
What is required for a RJMOL?
A Renewed JMOL requires that the party moved for JMOL prior to submitting to jury. On a RJMOL the court can Affirm the Trial, OR
Reversed and tender a directed verdict.
81
What factors are considered on Motion for a New Trial?
A verdict against weight of the evidence;
Trial was unfair to movant;
Substantial legal errors on evidentiary or jury instructions;
New Evidence;
Excessive damages.
82
When R59 Motion for New Trial based on New Evidence, what must be shown-
Evidence existed at the time of trial,
Evidence was not overlooked because of lack of diligence,
Evidence is material and admissible.
83
What is Harmless Error?
Under Rule 61, errors that do not affect a party's substantial rights are disregarded.
The burden is on the movant to show error was not harmless.
84
What is remittitur?
Remittitur allows a court to reduce a jury award that "shocks the conscience"
The trial may give prevailing party option of taking remittitur instead of granting a new trial.
85
What is additur?
Additur is the awarding of verdicts higher than the jury awarded. Additur is unconstitutional in federal courts, but some states do allow.
86
What is also ruled if a RJMOL is granted?
When RJMOL is granted, the court must also issue a conditional ruling on any New Trial motions.
This is in case the RJMOL is overturned on appeal.
87
When may a conditional argument be offered by a party?
Under Rule 50(e) when a JMOL is denied, the prevailing party may offer a conditional argument to support a new trial, in case the JMOL is appealed and reversed. [???]
88
What standard are Rule 59 (New Trial) motions reviewed on?
Appealed motions for a new trial are appealed under "an abuse of discretion."
This is the highest standard of review.
89
When is a Rule 60(b) Relief from Judgment granted:
6 reasons to get Relief from Judgment under R60(b):
1. Mistake, inadvertence, surprise, excusable neglect;
2. New discovered evidence, undiscoverable for a R59 motion;
3. Fraud, misrepresentation, misconduct by opposing;
4. Void judgment;
5. Judgment satisfied, released, discharged
6. Any other justified reason
90
What are time limits on R60(b) motions?
Relief from Judgment motions can be filed within a reasonable time after judgment.
However, mistake/inadvertence/surprise/neglect, new evidence, and fraud/misrep/misconduct can be no more than 1 year after.
91
What is required for Relief from Judgment under Newly Discovered evidence?
The evidence must have been discovered since trial, due diligence of movant must be shown, can't be cumulative or impeachment evidence, must be material, and such that a new trial would produce a new result.
92
What is required for Relief from Judgment due to Fraud?
The fraud must be a deliberate and carefully executed scheme; there was intent to deceive or defraud, shown by clear and convincing evidence.
93
What is required for Relief from Judgment due to Void Judgment?
Void judgment is generally based on a jurisdictional defect or defective notice.
94
What is necessary for Relief from Judgment for "Any other justified reason?"
The reason can not be anything that meets reasons 1 through 5. The is to prevent manifest injustice in extraordinary circumstances.
95
What is the purpose of provisional remedies?
Provisional remedies are to protect what is at stake in the case, or "secure satisfaction of potential judgment".
96
What is allowed under Rule 64 as provisional remedies?
Rule 64 allows for seizing a person or property. This can be done by:
Arrest,
Attachment,
Garnishment,
Replevin,
Sequestration,
Other equitable or corresponding remedies.
97
What are the most prominent remedies to encumber property?
Attachment - preventing D from disposing;
Garnishment- a 3rd party sending Ds assets;
Replevin- Wrongfully taken property returned;
Sequestration- Property held by neutral 3rd party.
98
What is the meaning of lis pendens?
Lis pendens is a notice filed and recorded of the pending actions against a property.
99
What is the purpose of a TRO or preliminary injunction?
TRO and Prelim. Injunct. are to maintain the status quo and prevent irreparable harm.
100
What is the difference between a TRO and prelim injunct?
TROs expire no later than 14 days and expedite the prelim. injunct. hearing. Prelims don't expire until another court order.
TROs are generally ex parte, Prelims are adversarial.
101
What must the adverse party do to motion to dissolve a TRO?
An adverse party must give 2 days notice to challenge a TRO.
102
What is required for a preliminary injunction?
1. The case is likely to succeed on its merits;
2. Movant likely to suffer irreparable harm without;
3. Balance of equities favor the movant;
4. Injunction would be in public interest.
103
What is the Final Judgment Rule?
The Final Judgment Rule gives the Circuit Courts jurisdiction of appeals on final decisions; when nothing remains to be done in a case except enforcement.
104
Is a Summary Judgment denial subject to appeal.
Generally, a denied Motion for Summary Judgment is not appealable.
105
What is an Interlocutory Appeal?
An appeal before conclusion of the case. An exception to the Final Judgment Rule that requires:
A controlling question of law, AND
Substantial grounds for difference in opinion, AND
The immediate appeal may materially advance termination of the litigation.
106
When must an interlocutory appeal be filed, generally?
Interlocutory appeals must generally be filed within 10 days.
107
When may multiple issue cases be appealed?
Under Rule 54(b), once an issue is decided as final and there is no just reason for delay, that issue can be appealed while the others remain unfinal.
108
What is a writ of mandamus?
An extraordinary writ directing the lower court to withdraw an order. Mandamus requires exceptional circumstances, appropriate to counter usurpation of judicial power or clear abuse of discretion. Mandamus is not available when the issue is appealable on final judgment.
109
What is an Appeal from Contempt?
As a last resort, when an order is not appealable the party may disobey the order and appeal the ensuing contempt.
110
When is a contempt order appealable.
If the contempt person was a party, only criminal contempt is appealable. a non-party can appeal any contempt (lack of jurisdiction over non-party).
111
When must appeals be filed?
Generally, final judgment appeals must be filed within 30 days of the entry. Interlocutory appeals must be filed within 10 days.
112
When does the time limit on appeal deadlines toll?
During a RJMOL or a Motion for a New Trial, the 30 day time limit tolls (pauses).
113
When might a court extend the 30 day appeal time limit?
When there has been excusable neglect. The court will consider: Prejudice to movant, length of delay, reason for delay, control of the movant over delay, good faith of the movant.
114
What is preclusion, what are the 2 types?
Preclusion prevents matters from being tried again once decided. Claim preclusion (res judicata) and Issue preclusion (collateral estoppel) are the 2 types of preclusion.
115
What are the elements of claim preclusion?
1. An identical claim was made or could have been made in an earlier case;
2. Same parties in both cases;
3. Previous case resulted in final judgment.
116
What are the elements of issue preclusion?
1. Issue(s) in the 2nd case are identical to issue(s) in the first;
2. Issue(s) were actually litigated in first case;
3. Issue(s) decided on the merits and implicated in judgment.
117
When must preclusion be claimed?
Res judicata and collateral estoppel are affirmative defenses that must be made in the original answer or motion to dismiss.
