Civil Procedure - Barbri

Question 1

What are the elements of claim preclusion?

Answer 1

1. the earlier judgment must be a valid, final judgment on the merits;
2. the cases must be brought by the same claimant against the same defendant; and
3. the same cause of action must be involved in the later suit

Question 2

What is a final order for the purposes of claim preclusion?

Answer 2

One that disposes of the whole case on its merits, by rendering final judgment not only as to all the parties but as to all causes of action involved.

Question 3

When can offensive issue preclusion be raised?

Answer 3

1. the prior action ended in a final judgment;
2. the issue has been actually litigated and determined;
3. the issue was essential to the judgment;
4. the party to be bound by the prior judgment was a party to the prior action or in privity with a party to the prior action; and
5. the party asserting issue preclusion was a party to (or in privity with a party to the prior action) or, if not, is asserting issue preclusion under circumstances that are not unfair or inequitable.

Question 4

How do courts determine fairness in terms of offensive issue preclusion?

Answer 4

Courts typically consider whether:

• the defendant had an adequate incentive to litigate vigorously in the first action;
• the party trying to assert issue preclusion could have intervened in the earlier suit, and
• there are prior inconsistent judgments

Question 5

What does due process require for notice?

Answer 5

Due process requires that the method of giving notice must have a reasonable prospect of giving actual notice. Posting of notice is insufficient to notify persons whose names and addresses are known; these persons must be notified at least by ordinary mail.

Question 6

When is a renewed motion for a JMOL permitted?

Answer 6

It is permitted provided that the moving party moved for a JMOL at some time during the trial.

• the moving party is permitted to raise ONLY those issues raised in the initial motion for JMOL

Question 7

What should a judge do if a renewed JMOL is filed alongside a motion for a new trial, in the alternaitve?

Answer 7

If the renewed motion is granted, the court MUST rule hypothetically on the new trial motion so that no remand is required if the ruling on the JMOL is subsequently reversed on appeal.

Question 8

When may parties by joined as defendants?

Answer 8

Whenever:

1. some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and
2. there is a question of fact or law common to all the parties

Question 9

How may a corporation be served under the federal rules?

Answer 9

A corporation may be served by serving any corporate officer or managing or general agent. Alternatively, service may be made under state rules or by mail under the waiver of service provision.

Question 10

Where is venue proper?

Answer 10

In:

1. a judicial district in whcih any defendant resides, if all defendants are residents of the state in which the district is located;
2. a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred; or in which a substantial part of property at issue is located; or
3. if there is no district anywhere in the United States that satisfies those, a judicial district in which any D is subject to the court’s personal jurisdiction with respect to such action

Question 11

When will a party be bound by issue preclusion?

Answer 11

For a party to be bound:

1. there must have been a final judgment;
2. the issue must have been actually litigated and determined;
3. the issue must have been essential to the judgment; and
4. the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action.

Question 12

Is a party under a duty to supplement his responses?

Answer 12

A party is under a duty to amend a prior response if he knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment

Question 13

When may a deposition be used at trial?

Answer 13

It may be used at trial for any purpose if the deponent is at a distance greater than 100 miles from the place of trial.

Question 14

When may a motion for summary judgment be granted?

Answer 14

Summary judgment may be granted if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

Question 15

What does a plaintiff need to show to prevail on summary judgment?

Answer 15

For the plaintiff to prevail, he must satisfy the burden of production on every element of its claim. If neither party offers any evidence on an issue, the party with the burden of production loses.

Question 16

What does the work product privilege protect?

Answer 16

Work product protects documents and materials prepared in anticipation of litigation, NOT the underlying facts in the document itself.

Question 17

Can a court grant partial summary judgment?

Answer 17

Yes, summary judgment may be partial as well as complete

Question 18

Are impleader claims compulsory?

Answer 18

NO!!!

Question 19

When can a jury demand be withdrawn?

Answer 19

Only if all parties consent, there is no timing specified in the federal rules for withdrawing a jury demand

Question 20

When does an amendment that changes the name of a party relate back to the date of the original pleading?

Answer 20

If:

1. the party received such notice of the action that it will not be prejudiced in defending on the merits; and
2. the party knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity

Question 21

Under the Erie doctrine, what law determines the date an action commences for statute of limitations purposes?

Answer 21

State Law.

Question 22

Can a new trial be granted if a juror gave false testimony on voir dire or concealed material facts relating to her qualifications to serve?

Answer 22

Yes.

Question 23

Can a party exercise a peremptory strike for any reason?

Answer 23

Yes, as long as it is race-and gender-neutral

Question 24

Rule 20

Answer 24

Under Rule 20, a P may join two or more persons as Ds IF the P’s claims against them arise “out of the same transaction, occurrence, or series of transactions or occurrences.”

Question 25

What are the two steps in determining whether the joinder of parties or claims are permitted?

Answer 25

1. the joinder must be authorized by the federal rules; and
2. there must be subject matter jurisdiction over the action

Question 26

What happens where legal and equitable claims are joined in one action?

Answer 26

If legal and equitable claims are joined in one action involving common fact issues, the legal claim should be tried first to the jury and then the equitable claim to the court (the jury’s finding on fact issues will bind the court in the equitable claim)

Question 27

What must a party do who desires a jury trial?

Answer 27

He must file a written demand with the court and serve it on the parties within 14 days after the service of the last pleading directed to the jury-triable issue.

Question 28

If legal and equitable claims are joined in one action involving common fact issues, which should be tried first?

Answer 28

The legal claim should be tried first to the jury and then the equitable claim to the court (the jury’s finding on fact issues will bind the court in the equitable claim);

Question 29

If legal and equitable claims are joined in one action involving common fact issues, which should be tried first?

Answer 29

The legal claim should be tried first to the jury and then the equitable claim to the court (the jury’s finding on fact issues will bind the court in the equitable claim);

Question 30

FRCP 18: is a P permitted to join all claims he has against a given D?

Answer 30

Yes, regardless of whether they are related.

Question 31

When is diversity determined?

Answer 31

At the time the action is filed, not when the cause of action accrues or after the action commences.

Question 32

What may the jurors take into the jury room?

Answer 32

All papers or exhibits in evidence and their own notes.

Question 33

What items are generally improper to use in the jury room?

Answer 33

Instructions, pleadings, or other matters except when they are formally admitted into evidence.

Question 34

What are the bases for the court to order an involuntary dismissal against a plaintiff?

Answer 34

Failure to:

1. Prosecute;
2. Comply with the Federal Rules; or
3. Comply with a court order

Question 35

Can a party’s admissions be discoverable in a subsequent action?

Answer 35

No. An admission made pursuant to a request for admissions is an admission for the purpose of the pending action ONLY; it may not be used against the party who made it in any other proceeding.

Question 36

When may a federal court transfer to another proper venue?

Answer 36

For the convenience of parties and witnesses and in the interest of justice.

Question 37

Section 1404(a) allows transfer to another district where the action…

Answer 37

Might have been brought OR to which all parties have consented

Question 38

What is the policy behind section 1404?

Answer 38

While venue may be correct, the parties or the witnesses might be greatly inconvenienced by the trial in the original forum.

Question 39

What must a court do when a case is filed in an improper venue?

Answer 39

The court must dismiss, or, in the “interests of justice,” transfer the case to a venue in which it could have been brought. (transfer is more appropriate than dismissal except in extraordinary circumstances)

Question 40

What is the effect of forum selection clauses?

Answer 40

The clause will be enforced by means of a motion to transfer “in the interests of justice” unless exceptional public interest factors dictate otherwise.

Question 41

What law is applicable upon transfer where original venue was proper?

Answer 41

The transferee court applies the law the transferor court would apply, unless the transfer was ordered to enforce a forum selection clause.

Question 42

What law is applicable upon transfer where the original venue was improper?

Answer 42

A transfer on these grounds results in a change of the law applicable under Erie; the law of the transferee court will apply.

Question 43

When a case is removed from state court to federal court, where is venue set?

Answer 43

In the federal district court that embraces the state court in which the action was pending.

Question 44

Who can exercise the right of removal?

Answer 44

ONLY defendants. But if more than one defendant, all defendants properly joined and served must join in or consent to the removal

Question 45

When is an action NOT removable?

Answer 45

When the jurisdiction of the federal court is based solely on diversity and one of the D’s is a citizen of the state in which the state action was brought, the action is NOT removable.

Question 46

When may a case NOT be removed on the basis of diversity of citizenship (time-wise)?

Answer 46

A case may not be removed on the basis of diversity of citizenship jurisdiction more than one year after it was commenced in state court (this DOESN’T apply to federal question jurisdiction)

Question 47

In which court must notice of removal be filed?

Answer 47

In the federal district court in the district and division within which the action is pending. (A copy should be sent to the state court)

• once this notice is filed, the state court can no longer deal with the case, and if they attempt to do so, the federal court can enjoin the state court