Short Questions

Question 1

For a non-party to use issue preclusion offensively: The court has Discretion or is a matter of right?

Answer 1

Discretion is the rule for offensive issue preclusion (used to stop a new action for being litigated)

Only when the court determined that it is fair and equitable to allow the non-party to do so, he may use issue preclusion (collateral estoppel) offensively.

Question 2

To achieve Diversity: Can a P:

1. Join efforts with another P
2. aggregate unrelated claims against other D
3. aggregate unrelated claims against the same D
4. Aggregate unrelated claims against the same D

Answer 2

To satisfy the amount in controversy requirement for diversity jurisdiction, a plaintiff may aggregate unrelated claims against a single defendant. In other words, the plaintiff may aggregate all of her claims regardless of whether the claims are legally or factually related to each other.

Multiple P: only if the other P when they enforce the same single title or right

Multiple D: Nope, it has to be the same D

Related only: They can also be unrelated

Question 3

In a Diversity case Removal cannot be made by a D when D is a citizen of the Fed Court where the action would be removed to. However, would that also stop a Co-Defendant from another state to file for removal?

Answer 3

YES, the Co-D would also be stopped from removing the case

Under 28 U.S.C. section 1441, a defendant may remove an action that could have originally been brought in the federal courts. (In other words, subject matter jurisdiction based on either a federal question being presented or on diversity of citizenship would have been present had the case been filed in federal court.) However, a case may not be removed on the basis of diversity jurisdiction if a defendant is a citizen of the state in which the action was filed. Here, the action was filed in State A against a State A defendant; thus, the case may not be removed, even though it is a State C defendant who is seeking removal.

Question 4

To receive a jury trial, a party generally must file what to whom on what term after what?

Answer 4

File a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue

Question 5

General rule: When amendments to pleadings can relate back to the date the original pleading?

1. Can you do it to include new causes of action?
2. Can you do it even if there is a statute of limitations expiration?

Answer 5

The amendment will relate back when the amendment concerns the same conduct, transaction, or occurrence that was set forth in the original pleading.

1. New causes for action: An amendment adding a new cause of action is permitted if the new cause of action is derived from the same facts
2. SoL: An amendment is permitted even when the statute of limitation has expired
3. In all cases it is important than the original pleading must have been filed timely

Question 6

Don has an accident with Cooper. He sues him for the injuries on his nose and wins. Then he sues him again for the injuries of his foot.

If Coopers objects and wins, why would be the best argument?

Answer 6

Because all related claims “merged” with the final decision in the first case.

Merger occurs when the plaintiff wins; his cause of action is said to “merge” into the judgment such that he cannot relitigate the cause of action later. The court would hold that all of the personal injuries received by Don in one accident constitute a single cause of action, and that claim preclusion principles forbid relitigation.

This is not a issue preclusion case, but a claim preclusion

Question 7

For a defendant to have such minimum contacts with the forum that the exercise of personal jurisdiction over him would be fair and reasonable:

Answer 7

That he purposefully availed himself of that forum AND it was foreseeable that his activities would make him amenable to suit in the forum

The contacts cannot be accidental, therefore they need to be on purpose, and they need to be expected

Question 8

What would be the correct word, when you are stopped from a cause of action because of a claim preclusion?

Answer 8

If P won the case before: the P’s repeated claims is Merged into the prior judgment

If D won the case before: the claim for the P is said to be barred by the prior judgment

Question 9

Federal courts will not exercise diversity jurisdiction over this subjects

Answer 9

Domestic relations, probate, or criminal proceedings

Question 10

P files complaint against Corporation Acme Inc., one month after, once the SoL expired he realizes that he named the wrong corporation in the suit. Then he filed a motion to amend the complaint to substitute the name of the D

if both corporations are owned by the same corporate group and common directors knew about the suit, is the suit barred by SoL?

Answer 10

No, R15 (c) states that an amended complaint relates back to the time of the original complaint if:

1. the original complaint was served within the time
2. arises from the same transaction
3. the new D received such notice of the action that it will have been brought against it but for mistake concerning the proper party’s identity

Question 11

Can you implead someone in a jurisdiction that does not recognize any claim of contribution among joint tortfeasors?

Answer 11

No, a 3pP can implead a 3pD in a jurisdiction that doesn’t recognize contribution among joint tortfeasors.

The only option that a D would have is to raise the other D negligence as a defense, alleging that the other D was the sole cause of the action, but he may not implead anyone based on joint contribution

Question 12

The Seventh Amendment guarantees a trial by jury in all cases where?

Answer 12

When the claim is “at law,” and the amount in controversy exceeds $20

The Seventh Amendment provides the right to a jury trial in federal courts for the determination of facts in all suits at common law where the amount in controversy exceeds $20. The Supreme Court has held that when legal and equitable claims are joined in one action, the legal claim should be tried first to the jury and then the equitable claim should be decided by the court.

Question 13

Four partners live in different states, A, B, C, D. The partnership has its main office in state Z.

A citizen of State Z sues the partnership.

Diversity?

Answer 13

Yes, a partnership takes on the citizenships of its partners, not of the principal place of business

Question 14

Is it Intervention permitted or prohibited when the interventor’s action and the main action have a claim or defense involving a common question of law or fact?.

Does the court have discretion or is a matter of right?

Answer 14

Permitted

Under Federal Rule 24(b), intervention may be permitted in the court’s discretion when the intervenor’s action and the main action have a claim or defense involving a common question of law or fact.

Intervention is permitted as a matter of right only when the intervenor claims an interest relating to the property or transaction that is the subject of the action and the disposition of the action may adversely affect that interest.

Permissive intervention (within the court’s discretion) must invoke either diversity of citizenship or federal question jurisdiction.

Question 15

When a party’s state citizenship for purposes of diversity jurisdiction is determined?

Answer 15

When the lawsuit is filed

Question 16

Under Federal Rule 41(b), what are grounds for a court to order an involuntary dismissal against a plaintiff?.

Answer 16

1. The failure to prosecute the case (he doesn’t pursue the action but doesn’t withdraw the case either)
2. to comply with the Federal Rules, or
3. to comply with a court order

Question 17

When is a tangible work product NOT discoverable?

Answer 17

If made in anticipation of litigation, however substantial need and undue hardship can force discovery

Generally, the work product—a document or tangible thing—made by a party or representative of a party (such as the party’s attorney) is not discoverable if made in anticipation of litigation, unless the party requesting discovery can show substantial need and undue hardship if disclosure is not ordered.

It is not the case that work product is not discoverable under any circumstances. Work product that was not made in anticipation of the litigation is obtainable. Also, work product that is relevant to the litigation may be discoverable if the work product was not made in anticipation of the litigation (or if it is not a document or tangible thing).

Question 18

When can SCOTUS hear a case from a state supreme court?

Answer 18

SCOTUS can give discretionary writ of certiorari on final judgments of the highest court of a state if:

1. (i) the validity of a treaty or federal statute is drawn into question;
2. (ii) the validity of a state statute is drawn into question on the ground that it is repugnant to the federal Constitution or to a treaty or federal statute; or
3. (iii) any title, right, privilege, or immunity is claimed under the federal Constitution or treaty or federal statute.

Question 19

What is the appellate jurisdiction of the United States Supreme Court?

Answer 19

The Supreme Court may hear some appeals from state courts and some appeals directly from federal district courts.

Question 20

P has both federal and state claims against D over the same CNOF. No Diversity. Does a federal court has discretion on whether to admit both claims?

*(Teriyaki Lunch con Eliana y Camilo)*

Answer 20

The court’s exercise of supplemental jurisdiction in such a scenario is discretionary. The court has discretion to determine that the claims are so related that they are part of the same case or controversy, and the P would ordinarily be expected to try them all

Question 21

In federal court, if a person travels to another jurisdiction solely to be a witness (not a party or ar an attorney) in a court action, he is immune from service?

Answer 21

YES, in all cases when he is participating in a judicial proceeding.

He is not immune when fraudulently induced to come into a jurisdiction for purposes of serving process and obtaining personal jurisdiction

Question 22

Removal: Can a P that receives a counter-claim invoke removal SMJ?

Answer 22

No, he can’t

A plaintiff may not remove on the basis of a counterclaim against him that could have been brought in federal court. Additionally, only defendants may remove a case to federal court

Question 23

Imagine that P sues D in State A, but D removes the case to Federal Court. State A is not the proper venue. Should the Fed Court transfer the case to the proper venue?

Answer 23

No. In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state

Question 24

Are injuctions appelable as of right?

Answer 24

YES!

All interlocutory orders are reviewable as or right.

Other Interlocutory orders include:

1. Injunctions
2. Appointments of receivers
3. Certain admiralty, patent infringement, and property possession case

Don’t forget however the exception created by the Interlocutory Appeals Acts, that states that the review will be discretionary when the trial court certifies that the order involves a controlling question of law and immediate appeal from the order may materially advance the ultimate termination of the litigation

Question 25

What are the two time limits for removal?

Answer 25

(1) a case based on diversity must be removed within 30 days of the defendant’s receipt of a copy of the paper (order, motion, etc.) that makes the case removable; but (2) in no event may the case be removed more than one year after it was commenced in state court.

Question 26

In a federal question case, the action is always deemed commenced for statute of limitations purposes when?

What would be the case if it is a diversity case?

Answer 26

Federal Question: When the complaint is filed with the court

Diversity: When the state rules say so

Question 27

P1 (State A) sues D1 and D2 (Both State B). Diversity claim

D1 also sues D2, in a cross-claim action based on the common nucleus of fact.

Does the Fed Court have SMJ on the claim? which one?

Answer 27

Yes, the court has supplemental SMJ on the cross-claim even if it destroys diversity.

When Federal Courts have SMJ over one claim, it has the discretion to allow the exercise of supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be excepted to try them in a single judicial proceeding.

This would be possible even if the other D in a cross-claim is from the same state as the original D.

This rule is different for 3P Claims

Question 28

What is the deadline to grant a motion to amend?

Answer 28

The is none.

Federal Rule of Civil Procedure 15 states that leave of court (to grant motions to amend) is to be “freely given when justice so requires.” The rule does not provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice.

Question 29

What is the rule for recognition of judgments (State courts and federal courts)

Answer 29

A state court generally must recognize the judgments of a sister state and federal courts generally must recognize judgments of state courts

Under the Full Faith and Credit Clause of the Constitution and federal statutes: Recognition of judgments is required between state courts, between state and federal courts, and between federal courts.

Question 30

Assume that venue was proper in the district where a suit was originally brought. Is transfer to another district permitted, and if so where?

Answer 30

Transfer is permitted to another district where the action might have been brought, or to which all parties have consented

The policy behind this rule is that while venue may be correct, the parties or the witnesses might be greatly inconvenienced by the trial in the original forum.

Question 31

Supplemental Jurisdiction can be invoked on all types of SMJ?

Answer 31

For either Diversity and Federal Question (Applies to all SMJ)

Question 32

Barbri thinks that there is a risk of irreparable injury if Kaplan publishes his questions. Barbri files a petition for an ex parte order. They add the following:

1. Affidavit/verified complaint to establish the irreparable injury that will result to the moving party if the order is not issued
2. Provides security to pay for any cost of damages

Should the court proceed without a hearing?

Answer 32

NO,

there is an element missing: Barbi also needs to certify by writing all efforts it made to give notice to the adverse party and why notice should not be required

Question 33

What are the differences between:

1. General verdict
2. Special verdict
3. Special verdict with special interrogatories
4. General verdict with special interrogatories

Answer 33

1. General verdict: the jury finds for the plaintiff or defendant and determines damages or relief. It is assumed that all essential issues were found in favor of the prevailing party
2. Special verdict: the jury receives a series of questions regarding each ultimate fact, then the court makes legal conclusions based on those facts.
3. Special verdict with special interrogatories: IT DOESN’T EXIST
4. General verdict with special interrogatories: The jury finds for the plaintiff or defendant, determines the damages or relief to be given, and answers specific questions of fact

Question 34

When can you rise:

1. Failure to state a claim upon which relief can be granted?
2. Insufficient service of process
3. Failure to join a party
4. Lack of SMJ?

Answer 34

1. Failure to state a claim upon which relief can be granted? ANYTIME BEFORE OR AFTER TRIAL: BEFORE (RULE 12 DEFENSE) AFTER (MOTION FOR JUDGMENT ON THE PLEADINGS)
2. Insufficient service of process AT ANSWER ONLY
3. Failure to join a party AT TRIAL OR BEFORE A TRIAL
4. Lack of SMJ? ANYTIME, EVEN APPEAL (VOID)

Question 35

Can a non-federal question claim be brought using a class action? Does it need to arise under federal law?

Answer 35

No, a class action may invoke diversity. Only the citizenship of the named class representatives are taken into account, the amount of any representative needs to exceed 75K

Question 36

Two P state A employees are fired from the same company located in State B. P1 has a 50K claim, while P2 have a 100K claim. They can clearly aggregate their actions to both achieve diversity.

Question: They would need to invoke Supplemental SMJ? or they don’t need to because they are two P with the same cause of action?

Answer 36

They need to invoke SMJ not aggregation, because the only moment where two differents claim can be aggregated (without requiring SMJ to achieve diversity) is when there is a single P against a single D.

Multiple P can also achieve aggregation, but only on the event where they have a single undivided interest.

Here is P has its own interests, therefore the 50k claim requires supplemental jurisdiction

Question 37

Is supplemental (pendent) jurisdiction discretionary or given as a right?

Answer 37

the federal court has discretion to exercise supplemental (pendent) jurisdiction over the claim based on state law if the two claims are so related that they are part of the same case or controversy, which essentially means that they derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding. A federal court does not have discretion to exercise jurisdiction if the claims are unrelated

Question 38

To satisfy the amount in controversy requirement for diversity jurisdiction, a plaintiff may aggregate unrelated claims? single or multiple defendants?

Answer 38

Aggregate unrelated claims against a single defendant

Question 39

Draper and Sterling (NY) have an accident with Cooper (Montana), Cooper sues them both. Draper also sues Sterling because he was driving drunk.

Draper and Sterling had a bad business deal, and Draper also joins to the negligence action a contractual cross-claim action. Possible?

Answer 39

Yes, he may join his contract claim with his negligence claim, but he is not required to do so.

As a general rule, a party may assert a cross-claim against a co-party only if the cross-claim arises from the same transaction or occurrence as that of the original action or of a counterclaim. However, once the party has filed such a cross-claim, he also may join with it any other claim that he has against the same party. Here, the driver’s contract claim is unrelated to the pedestrian’s negligence claim; however, the driver’s negligence claim is related to the pedestrian’s negligence claim. Thus, the contract claim also can be asserted in this case

Question 40

Criteria for request of discovery. Does it need to be relevant? admissible?

Answer 40

In general, discovery may be had of any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.

Question 41

When a defendant attempts to remove a case from state court to federal court, does the state court needs to have SMJ over the case?

Answer 41

Its irrelevant, by statute, the state court need not have had subject matter jurisdiction over the case. A federal court may decide a claim in a removed civil action even if the state court had no subject matter jurisdiction.

Question 42

5 days before trial, a party founds out that there is a better witness available to testify, and wants to call the W to trial.

If it is possible to call the new W?

Answer 42

YES, subject to the discretion of the court (to prevent injustice)

The party may call the additional witness only if the court modifies the pretrial order, since a pretrial order controls the subsequent course of an action unless modified. The order will be modified “only to prevent manifest injustice.” [Fed. R. Civ. P. 16(e)]

Question 43

You file a motion to compel discovery, without certifying the good faith attempts to confer with the opponent to obtain discovery without intervention.

Can you still recover the costs of the attorney’s fees and have sanctions imposed on the other party?

Answer 43

No

If there is no good faith attempt to confer there are no compensations.

Sanctions would only come if the party disobeyed an order from court.

Question 44

Hunter in state A buys a gun on a company’s website located in State B. He takes the gun to State C to use it (State C is a famous destination for hunters)

The gun fails and causes injuries to the Hunter, can he sue the company in State C?

Answer 44

No, the company does not have enough contacts with State C.

There is no purposeful contacts by the company to State B. There was no marketing effort. The hunter unilaterally took the gun to State C. Putting a movable product in the stream of commerce is not enough

Question 45

What order may be issued without notice to the other party?

Answer 45

Temporary restraining order TOR

Requirements: (i) moving party establish immediate and irreparable injury will result before the adverse party can be heard in opposition. (ii) certify in writing all efforts she made to give notice of the hearing to the adverse party and the reasons why notice should not be required; and (iii) provide some security.

Preliminary injunctions, summary judgments, and judgments as a matter of law require notice to the other party in order to be issued.

Question 46

Can a Fed Court exercise diversity citizenship over probate matters?

Answer 46

No, however, take into account that the matter has to be the actual probate or annulment of the will or seek to reach property in the custody of a state probate court

Question 47

Can you use a deposition against a party when they were not present?

Answer 47

No, only when they were present at the deposition or had notice of it and when:

1. impeach the testimony of the deponent as a witness
2. for any purpose when the deponent is dead, a distance greater than 100 miles from the trial or unable to testify because of age or sickness
3. for any purpose if the deponent is an adverse party

Question 48

Regarding the waiving of defenses when a pendency matter is not included in a pre-answer motion. Which procedural rules should a federal court apply?

Answer 48

While a federal court exercising diversity must apply state substantive law, applicable FRCP supersede state law in federal court as long as the rule comports with the requirements of the Rules Enabling Act (i.e. the rule governs practice and procedure and does not modify or abridge substantive rights)

Question 49

Which party or parties can exercise the right of removal?

Answer 49

Only the defendant

Question 50

When can you raise the defense of lack of PJ?

Answer 50

At the first answer only, otherwise you waive it

Question 51

In a federal question case, the action is always deemed commenced for statute of limitations purposes when:

Answer 51

The complaint is filed with the court

Question 52

Imagine an action brought by an executor representing a deceased person state, if the deceased person and the executor live in different places where is the residency of the Plaintiff?

Answer 52

Where the deceased person lived, the executor assumes the state citizenship of the decedent

Question 53

P sues D1, however, he should have sued D2. The statute of limitations applies now, but no to the date when he filed the original complaint. When the amendment to the pleading can relate back?

Answer 53

If the amendment to a pleading arises from the same T/O mentioned in the original pleading, the amendment is deemed filed on the same date that the original pleading.

Regarding new D, the new party must have had sufficient notice of the action and knew about it, but for a mistake in his identity she would have deem named originally

Question 54

A new trial may be granted when the verdict is:

Answer 54

Excessive, inadequate, or against the weight of the evidence

Question 55

A court may order a mental or physical exam of a party if:

Answer 55

The party’s mental or physical condition is in controversy; and good cause is shown

Question 56

Federal trial courts are required to apply a _______ when considering a motion for a new trial based on the excessiveness of the verdict.

1. Federal Law Standard
2. State Law Standard
3. Either, in the court’s discretion

Answer 56

State law standard

Question 57

Under certain circumstances, a _______ may be issued without notice to the other party.

Answer 57

Temporary restraining order

Question 58

If an Absentee party:

1. would be affected by a judicial determination;
2. court has PJ over him, and
3. he wouldn’t destroy diversity,

Then?

Answer 58

He MUST be joined as a party to the case. If the party has an interest in the current litigation, and the court could join him (i.e., it has personal jurisdiction over him) without destroying subject matter jurisdiction or venue, the court must do so. It is not a discretionary matter

Question 59

Are interests and Lawyer fees included in Diversity Cases?

Answer 59

Attorney’s costs (not on contract) and interest (not delay) are excluded from the amount in controversy calculation. HOWEVER, the provision has been interpreted to mean costs associated with bringing the claim (e.g., attorneys’ fees that are not covered by contract, filing fees, etc.) and interest that results from a delay in payment

Question 60

P sues D for medical practice. D calls 4 experts witness that clearly explain D defense. P calls a really bad expert witness that contradicts himself. No motions were made during the trial. Jury returned a verdict in favor of P (surprisingly). D filed for a renew motion for judgment 22 days after judgement.

Will the motion succeed?

Answer 60

No, because the doctor did not move for a judgment as a matter of law during the trial.

A judgment notwithstanding the verdict (“JNOV”) is now called a renewed motion for a judgment as a matter of law. To be valid, the party making the renewed motion must have moved for judgment as a matter of law at some time during the trial. Here, the doctor never moved for a judgment as a matter of law during the trial. Therefore, his motion for a renewed judgment as a matter of law will be denied.. While no reasonable jury would have reached that verdict, the D failed to move for a judgment as a matter of law at trial. Therefore, this motion cannot even be considered

Are the 22 days relevant? A renewed motion for judgment as a matter of law must be filed no later than 28 days after the judgment is entered, not 21 days.

Question 61

A plaintiff filed a negligence action against a defendant in federal district court after a two-car accident. The plaintiff’s attorney created a list of everyone he could identify who observed the accident or otherwise had information relevant to the accident. The list includes one eyewitness whom the plaintiff’s attorney was able to identify only through the expenditure of several thousand dollars in investigation costs. The defendant served the following interrogatory on the plaintiff: “Please state the name of each person of whom you are aware who may know or have information relevant to this action.”

Must the plaintiff provide the defendant with the names of all of the people on the plaintiff’s attorney’s list?

Answer 61

Yes, because the names are relevant to the claims and defenses of the parties, and they do not constitute work product.

The plaintiff must provide the defendant with the names of the people on the plaintiff’s attorney’s list. In general, discovery may be had of any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, including the identity of individuals with knowledge of any discoverable matter. Because the Federal Rules of Civil Procedure state that the identities of people with knowledge of discoverable matters are discoverable, the plaintiff’s attorney’s list is not considered work product.

Question 62

The plaintiff corporation is incorporated in State A and has its principal place of business in State B. The defendant corporation is incorporated and has its principal place of business in State C. It also has branch offices and does substantial business in all 50 states. The cause of action is based on a breach of contract that was to be performed in State D, which has a long arm statute authorizing jurisdiction in such cases.

In which of these states may the plaintiff corporation bring its action?

Answer 62

In States C or D only, because only those two states have personal jurisdiction and proper venue

To be “at home” in a state, a defendant corporation must be incorporated in the state or have its principal place of business in the state. Thus, a court of State C would have general jurisdiction over the defendant corporation. Venue would also be proper in State C because the defendant corporation is subject to personal jurisdiction in State C with respect to the action.

Question 63

P hires D1 and D2 for different services in his home. The house burns.

D1 is sued in a negligence action by P. D1 believes that he is not responsible, and believes D2 is liable not him.

30 days after filing his answer, he files an impleader to bring D2 to the case.

Will he succeed? was it too late?

Answer 63

No, the would not be able to join D2 since he is arguing that he is not the responsible party.

Under Rule 14, a defendant may assert a third-party claim against “a nonparty who is or may be liable to it for all or part of the claim against it.” In other words, a third-party claim must be a derivative claim; the third-party plaintiff must be seeking indemnification or contribution from the third-party defendant.

A defendant may serve a third-party complaint as of right within 14 days of serving his original answer. Thereafter, he must make a motion to serve the complaint, and it is within the trial court’s discretion whether to grant or deny the motion. Here, it is unlikely that a court would deny a defendant’s motion to serve a third-party complaint at such an early stage of the proceeding.

Question 64

What are the two situations where a nonparty may intervene on a cause of action as a matter of right?

Remember: Coal mining agency tries to intervene a permanent injunction to revoke the mining license issued by an a Federal Agency

Answer 64

1. a nonparty may intervene when it has an unconditional right to do so by a federal statute
2. a nonparty may intervene if
   
   1. (i) it has an interest in the property or transaction the is the subject matter of the action;
   2. (ii) the disposition or resolution of the action may as a practical matter impair the nonparty’s ability to protect its interest; and
   3. (iii) the nonparty’s interest is not adequately protected by an existing party in the action