Civil Procedure

Question 1

Pretrial Order

Answer 1

Controls the subsequent course of an action unless modified.

• The order will be modified “only to prevent manifest injustice.”
• Although a court will consider the timing of the request in determining whether to modify the pretrial order, there is nothing to prevent a judge from modifying the order, even if the trial has begun.
• A party may call an additional witness only if the court modified the pretrial order.

Question 2

Is P entitled to obtain information about D’s insurance coverage prior to trial?

Answer 2

Yes. Without waiting for a discovery request, a party must provide to the other parties copies or allow inspection of insurance agreements under which an insurer might be liable for all or part of any judgement that might be entered.

Question 3

When must removal be sought?

Answer 3

It must be sought within 30 days after receipt by or service on D of the initial pleading or summons, or, if the case is not initially removable, within 30 days of the case becoming removable.

-Additionally, removal based on diversity jurisdiction cannot be had if more than one year has passed since the suit was filed unless bad faith on the part of P can be shown.

Question 4

Rule 26(f) Conference

Answer 4

At a Rule 26(f) conference, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan.

The parties then must submit a proposed discovery plan to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court.

Question 5

What is a judgement notwithstanding the verdict now called?

Answer 5

A judgment notwithstanding the verdict (“JNOV”) is now called a renewed motion for a judgment as a matter of law.

Question 6

When is a renewed motion for a judgment as a matter of law valid?

Answer 6

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.

Question 7

What is the correct standard of review for a renewed motion for a judgment as a matter of law?

Answer 7

The judgment must have been based upon a verdict that a reasonable jury would not have had a legally sufficient basis to reach a verdict.

Question 8

When must a renewed motion for judgment as a matter of law be filed?

Answer 8

A renewed motion for judgment as a matter of law must be filed no later than 28 days after the judgment is entered.

Question 9

Is a party’s net worth ever subject to discovery?

Answer 9

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.
However, a party’s net worth is not relevant to any party’s claim or defense when the opposing party does not seek punitive damages.

Question 10

Leave of Court to Grant Motions to Amend

Answer 10

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.

Additionally, for statute of limitations purposes, proposed claims may be considered to “relate back” to the date of the original pleading in which the claim was made under Rule 15(c).

Question 11

Amend as a matter of course

Answer 11

A plaintiff may amend the complaint once as a matter of course (i.e., without court intervention) not later than 21 days after service of the defendant’s answer.

Question 12

What types of material are parties entitled to in discovery?

Answer 12

Parties are entitled to discovery that fits under Rule 26(b) (1), which includes “any nonprivileged matter that is relevant to any party’s claim or defense.” In other words, even if the matter is only relevant to the opposing party, it would still be covered.

–This includes the identity of individuals with knowledge of any discoverable matter.

Additionally, Rule 34 requires a party to produce relevant physical material, including electronically stored information, such as a recording.

Question 13

When should a motion for summary judgement be granted?

Answer 13

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.

–The court may not decide disputed fact issues on a motion for summary judgment; if there is a genuinely disputed material fact (meaning a dispute backed by evidence on both sides of the issue), the case must go to trial.

Question 14

What is the valid reason(s) for asserting a third-party claim?

Answer 14

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.

Question 15

When may a defendant serve a third-party complaint as of right?

Answer 15

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.

Question 16

When must a defendant disclose the existence of his insurance policy?

Answer 16

The defendant must disclose the existence of the insurance policy under the Federal Rules, which expressly permit discovery of insurance agreements as an initial disclosure.

–Initial disclosures must be made regardless of whether the opposing party submits a request for the information.

Question 17

How may a defendant object to personal jurisdiction?

Answer 17

A defendant may object to personal jurisdiction in two ways:

(i) by raising it in a pre-answer motion to dismiss under Rule 12(b); or
(ii) if he has not moved under Rule 12(b), by raising the defense in his answer.

–Note: Failure to do either of these constitutes waiver.

Question 18

Permissive Joinder

Answer 18

Parties may permissively join as plaintiffs (or be joined as defendants) whenever: (i) 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 (ii) there is a question of fact or law common to all the parties.

Question 19

Motion to Compel + Award of Reasonable Expenses

Answer 19

If a party fails to provide discovery or provides incomplete discovery, including disclosures and answers to interrogatories and deposition questions, the other party may move to compel discovery. However, a motion to compel must certify that the moving party has made a good faith attempt to confer with the opponent to obtain the discovery without court intervention. The certification (and an actual attempt at resolving the discovery dispute without court intervention) is a prerequisite to an award of reasonable expenses (which includes attorneys’ fees).

Question 20

Voluntary Dismissal

Answer 20

If the defendant has not answered or filed a motion for summary judgment, the plaintiff may dismiss her case by filing a notice of dismissal.

When a voluntary dismissal without leave of court is not available (i.e., there has been an answer, motion, or previous dismissal), the court has discretion to grant dismissal on such terms and conditions as the court deems proper. The dismissal is without prejudice unless the court specifies otherwise.

If there is a counterclaim pending in the action, there can be no dismissal over the defendant’s objection unless the counterclaim remains pending.

Question 21

What does “appeared” mean in considering a default judgement?

Answer 21

Appearance includes any actual formal appearance before the court and any other action that clearly indicates that the defendant intends to contest the case on the merits (e.g., the defendant’s continued settlement negotiations). Furthermore, an appearance cuts off the clerk’s ability to enter a default judgment.

Question 22

Default w/ a Defendant Who Appeared

Answer 22

A defendant against whom a default is entered loses the right to contest liability. However, the amount of damages must still be determined before a default judgment may be entered, and the defaulting party can be heard at the hearing for damages. If the defendant has “appeared,” even though he has not answered, he must be notified of the request for a default judgment by first-class mail at least seven days before the hearing on the application for a default judgment.

–An appearance cuts off the clerk’s ability to enter a default judgment.

Question 23

Elements for Claim Preclusion

Answer 23

Before claim preclusion (also called res judicata) applies, it must be shown that (i) the earlier judgment is a valid, final judgment “on the merits”; (ii) the cases are brought by the same claimant against the same defendant; and (iii) the same “cause of action” (or “claim”) is involved in the later lawsuit.

Question 24

Defining “Cause of Action” for Claim Preclusion

Answer 24

While various tests have been used to define “cause of action,” the modern approach is to require assertion of all claims arising out of the same transaction or occurrence that is the subject matter of a claim asserted by the claimant.

Question 25

For diversity purposes, a legal representative of a decedent…

Answer 25

assumes the state citizenship of the decedent.

Question 26

The Erie Doctrine

Answer 26

While the federal court exercising diversity of citizenship subject matter jurisdiction must apply state substantive law, applicable Federal Rules of Civil Procedure 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 27

A corporation is a citizen of…

Answer 27

every state in which it is incorporated and the one state in which it has its principal place of business.

Question 28

Protective Order

Answer 28

A person from whom discovery is sought by means of a deposition may move for a protective order in the court in the district where the deposition is taken. If the motion for a protective order is granted, the court may require the party opposing the motion to pay the moving party’s reasonable expenses, including attorney’s fees.

–A non-party deponent does not need to rely on one of the parties to protect their rights; they can directly move for a protective order.

–While Rule 26(f) requires the parties to submit a proposed discovery plan to the court before discovery may proceed, submission of a plan does not preclude deponents from seeking a protective order.

–A deponent need not answer deposition questions merely because the deposing party can move to compel discovery. If the plaintiff’s attorney here moves for an order compelling discovery, the witness’s attorney may contest the motion on the same grounds as they used in filing the protective order (that the questions are unduly invasive and improper).

Question 29

What procedure must D follow to remove a case to federal court?

Answer 29

The removal statute provides that the notice of removal should be filed in the federal district court that geographically encompasses the state court where the action was filed.

A copy must be served on the plaintiff, and another copy should be filed in the state court from which the action is being removed.

Question 30

Initial Disclosure of Tangible Things

Answer 30

Without waiting for a discovery request, a party must provide to the other parties copies or descriptions of tangible things that are in the disclosing party’s possession or control and that the disclosing party may use to support its claims or defenses as an initial disclosure under Rule 26(a)(1).

–Note: Separately, this tangible thing may also have to be disclosed under Rule 26(a)(3) as a pretrial disclosure of an item that is expected to be offered into evidence.

Question 31

Assume P files a claim against D under diversity jurisdiction. Can D file an unrelated counterclaim against P?

Answer 31

Yes, but only if the court has subject matter jurisdiction over the counterclaim.

A permissive counterclaim (a claim that arises out of an unrelated transaction) must meet the requirement for subject matter jurisdiction in order to be heard by the court.

Question 32

What is a compulsory counterclaim? Does a court need subject matter jurisdiction over the claim for D to assert it?

Answer 32

A compulsory counterclaim is one that arises from the same transaction or occurrence as the plaintiff’s claim.

Unless the counterclaimant has already filed the claim in another case, she must file the compulsory counterclaim in the pending case or the claim is waived. Thus, if you do not use, you lose it.

–Note: As always, there must be SJM over the counterclaim, so you should assess whether the counterclaim can invoke diversity or FQ SMJ. If neither of those works, check to see if there is supplemental jurisdiction (common nucleus of operative fact).

Question 33

What is a permissive counterclaim?

Answer 33

A permissive counterclaim is one that does not arise from the same T/O as P’s claim (arises out of an unrelated transaction). Permissive means that a party is not required to file it in this case and can sue on the claim in a separate case.

–Not waived if not asserted

—-Note: As always, there must be SJM over the counterclaim, so you should assess whether the counterclaim can invoke diversity or FQ SMJ. If neither of those works, check to see if there is supplemental jurisdiction (common nucleus of operative fact).

–SMJ is often the issue for permissive counterclaims

Question 34

P may lay venue in any district where…

Answer 34

(1) Any district where all Ds reside [residential venue]; OR
(2) Where a substantial part of the claim arose or a substantial part of the property involved in the suit is located. [transactional venue]

–Note: Ds have to reside in the same state for there to be residential venue (any district within that state in which a D resides is ok)

Question 35

Where Ds “Reside” for Venue Purposes

Answer 35

(1) A human “resides” in the federal district where she is domiciled. [only 1 domicile]
(2) A business (e.g., corp or unincorporated assoc.) resides in all districts where it is subject to personal jurisdiction for the case.

Question 36

Transfer of Venue

Answer 36

Transfer goes from one trial court in a judicial system to another trial court in the SAME judicial system. (thus, a federal district court may transfer to another federal district court, but it cannot transfer a case to a state court)

BUT the transferee must be a proper venue and have personal jurisdiction over D (and generally this must be true w/o waiver by D)

–Minor Exception: The court can transfer to any district (even an improper venue) if all parties consent and the court finds cause for the transfer. [however, it’s unlikely that P would consent b/c she chose the original venue]

Question 37

Transfer From a Proper Venue

Answer 37

If the original district is a proper venue, that court can order transfer based on convenience of the parties and witnesses and in the interests of justice. Note: When a diversity case is filed in a proper venue but the court orders transfer, the transferee court must apply the choice of law rules of the transferor court (unless the transfer is to give effect to a valid forum selection clause).

–B/c transfer overrides P’s choice of forum and P chose a proper venue, the burden is on the person seeking transfer (usually D).

–The court will consider both public and private factors showing that another court is the center of gravity for the case.

–Public Factors: what law applies, what community should be burdened w/ jury service, the desire to keep a local controversy in a local court.

–Private Factors: the court considers convenience (e.g., it will look to where Ds and evidence are found)

Question 38

Transfer (or Dismissal) From an Improper Venue

Answer 38

If the original district is an improper venue, the court may transfer in the interest of justice or dismiss the case. Usually, the court will transfer if possible (e.g., a federal district court can easily transfer to another federal district court)

Note: When the federal court transfers a diversity case b/c the original venue is improper, the transferee applies its own choice of law rules, that is, the choice of law rules of the state in which it sits, and NOT the choice of law rules of the transferor court. (P doesn’t benefit by filing in an improper forum)

Question 39

Contents of a Complaint

Answer 39

The complaint must contain:

–A statement of grounds of subject matter jurisdiction;

–A short and plain statement of the claim showing that P is entitled to relief; and

–A demand for relief sought (e.g., damages, injunction, declaratory judgment)

Note: P need not allege grounds for PJ or venue.

–In stating the claim, P must plead sufficient facts to support a plausible claim.

–Fraud, mistake, and special damages must be pleaded w/ more detail; that is, w/ particularity or specificity.

Question 40

Defendant’s Response

Answer 40

D must respond by motion or answer within 21 days (or 60 days if D waived service of process).

Question 41

Waivable Defenses Under Rule 12(b)

Answer 41

Some Rule 12(b) defenses are waived if not put in the first Rule 12 response (motion or answer). They are:

–(1) A lack of Personal jurisdiction;

–(2) Improper Venue

–(3) Improper Process [a problem w/ the papers]; and

–(4) Improper service of Process

Note: You can remember the waivable defenses by remembering “3 Ps and a V”

Question 42

Claim Joinder by Plaintiff

Answer 42

P may join any additional claim she has against D (even if the additional claim is unrelated to the original claim) AS LONG AS THERE IS SMJ OVER THE CLAIM TOO.

Question 43

Claims by Multiple Ps or Against Multiple Ds

Answer 43

Claims by multiple plaintiffs or against multiple defendants must:

(1) Arise from the same transaction or occurrence (“T/O”); and
(2) Raise at least one common question of law or fact.

Question 44

Necessary and Indispensable Parties

Answer 44

Three questions to ask:

(1) Is the absentee necessary (or “required”)?;
(2) If the absentee is necessary, can the absentee be joined?; and
(3) If the absentee can’t be joined, can the case proceed anyway?

Question 45

Is the absentee necessary?

Answer 45

Three questions to consider:

(1) Can complete relief be accorded among the existing parties? (worried about multiple suits); OR
(2) Will the absentee’s interest be harmed if she’s not joined?; OR
(3) Will D be subject to multiple or inconsistent liability? (worried about risk of multiple obligations)

Note: Joint tortfeasors are NEVER necessary.

Question 46

Can the absentee be joined?

Answer 46

If an absentee is labeled as necessary, a court will see if joinder of the absentee is “feasible.”

Joinder is feasible if:

(1) There is personal jurisdiction over the absentee; and
(2) There will be federal SMJ over the claim against the absentee. (in determining whether the claim invokes diversity, the court “aligns” the absentee as a P or D based on the absentee’s interest)

Question 47

What if the absentee can’t be joined?

Answer 47

The court then must determine whether to proceed w/o the absentee or dismiss the entire case. It will look to these factors:

(1) Is there an alternative forum available?;
(2) What is the actual likelihood of harm to the absentee?; and
(3) Can the court shape relief to avoid harm to the absentee?

Thus, you don’t necessarily need a necessary party’s presence to continue w/ the case. It’s just necessary to join him if feasible. But if the court decides to dismiss rather than proceed w/o the absentee, the absentee is called “indispensable.”

Question 48

Crossclaims

Answer 48

A crossclaim is a claim against a co-party. It must arise from the same T/O as the underlying action.

BUT it is NOT compulsory; it can be asserted in another case.

Question 49

Impleader

Answer 49

An impleader claim (also called a third-party claim) is one where a defending party (usually D) is bringing in a new party. It’s used to shift to the TPD the liability that D will owe to P.

–An impleader claim is permissive (D doesn’t need to bring it in the current case)

To implead a third party, D must:

(1) File a third-party complaint naming the TPD; and
(2) Have that complaint formally served (that is, served like an original complaint) on the TPD.

Note: There is a right to implead within 14 days of serving the answer. After that, court permission is needed.

Question 50

Supplemental Jurisdiction

Answer 50

Must have a case already in federal court:

–Step #1: Check for diversity or FQ jurisdiction over the additional claim;

–Step #2: Check for supplemental jurisdiction if no diversity or FQ.

The claim must share a “common nucleus of operative fact” with the claim that satisfied federal SMJ (the claim that got the case into federal court).
—–This test is always met when a claim arises from the same transaction or occurrence (T/O) as the underlying case. But note that the test is broader than T/O.

–Step #2(a): If the case got into federal court through diversity, then apply the limitation.

In diversity cases, claims by plaintiffs generally CANNOT invoke supplemental jurisdiction. UNLESS there are multiple plaintiffs, and the claim by one of them does not meet the amount in controversy requirement (then supplemental jurisdiction will apply).

Note: Even if we meet the requirements for SJ, the court has the discretion to decline it. It can do so if the state claim is complex or state law issues would predominate the case. But more likely: It can decline SJ if the claim on which federal SMJ is based is dismissed early in the case.

Question 51

What is the standard for discovery of experts who are retained in anticipation of litigation but who are not expected to testify at trial?

Answer 51

The opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested.

Question 52

Expert Witnesses

Answer 52

• Consulting experts (experts not intended to testify at trial) need not be disclosed absent exceptional circumstances (this includes facts known and opinions held by them)
• Testifying expert witnesses must be disclosed
• Written reports by experts “who may be used at trial” must be disclosed

–However. drafts of the report and communications are protected work product

Question 53

Required Pretrial Disclosures

Answer 53

• Must be made no later than 30 days before trial
• Must give detailed info about their evidence, including identity of witnesses who will testify live or by deposition and documents, ESI, and other things that they intend to introduce at trial (no surprises)

Question 54

When can relief from a final judgement be sought based on fraud, misrepresentation, or other misconduct of an adverse party?

Answer 54

A court may relieve a party from a final judgment or order based on fraud, misrepresentation, or other misconduct of an adverse party, and such a motion must be made within a reasonable time not to exceed one year.

Question 55

What gives a grantor more control over his property a lease or an easement?

Answer 55

A lease would give the grantee more control over the land than an easement, and would be more complicated to create.

–A lease grants the lessee the exclusive right to possess the premises, and broad rights to use them in any manner, unless specifically restricted. Thus, if the grantor leases the land to the city, he would not have access to the land, and if he wanted it used only for recreational purposes, he would have to specifically restrict any undesired uses. Any restriction not included in the lease will be unenforceable.

–An easement, on the other hand, grants only a limited interest in the land – to use it for only those purposes stated in the easement; thus, it would be better than a lease.

Question 56

Suppose a case has both legal and equitable issues, but the equitable issues predominate. Is D still entitled to a jury trial?

Answer 56

Yes. The defendant is entitled to a jury trial on the legal issues in the case, even though the equitable issue of whether an injunction mandating removal of the building should be issued clearly predominates.

Question 57

How will a court treat a party making a motion for judgment on the pleadings and accompanying it with an affidavit or other matters outside the pleadings?

Answer 57

A party making a motion for judgment on the pleadings and accompanying it with an affidavit or other matters outside the pleadings may in reality be making a motion for summary judgment, putting the wrong label on the motion. The court is expressly authorized to treat such a motion as one for summary judgment and to conduct subsequent proceedings on the motion in accordance with the rule on summary judgment, giving the parties full opportunity to present material made relevant by that rule. Under the rule for summary judgment, a party opposing the motion may present reasons why they need additional time to submit affidavits or obtain depositions.

Question 58

Common Question Class Action

Answer 58

In a “common question” class action, a judge may refuse to approve a settlement of a class action unless the class members are given a second opportunity to opt out.

Question 59

Burden of Going Forward w/ the Evidence

Answer 59

The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved. If a plaintiff makes out a prima facie case, he has met his burden of going forward with the evidence and the burden shifts to the defendant.

–Federal Rule 301 provides that a presumption imposes on the party against whom it was directed the burden of going forward with the evidence to rebut the presumption.

Question 60

Burden of Persuasion

Answer 60

The burden of persuasion is the burden of a party to persuade the jury to decide an issue in its favor. If, after all the proof is in, the issue is equally balanced in the mind of the jury, then the party with the burden of persuasion must lose. The burden of persuasion does not shift from party to party during the course of a trial. Because the plaintiff sued the defendant for the debt, the plaintiff has the burden of persuasion when the time for the jury to make a decision arrives.