Civ Pro

Question 1

entering default judgment

Answer 1

FRCP 55 provides a 2-step process for a π to secure a default judgment:

Step 1:
clerk must enter ∆’s default into record once π shows a ∆ failed to timely answer

Step 2:
clerk may enter default judgment, UNLESS:
* ∆ has appeared;
* ∆ is legally incompetent or a minor;
* π’s claim is not for a sum certain or a sum that can be made by calculating;
* π failed to include an affidavit establishing amount due.

If one of these happned, only court can enter default.

Question 2

compulsory joinder: “proper”

Answer 2

Under FRCP 19(a)(1), a person is a required party to a federal action and must be joined (if joinder is feasible) if any of the following is true:
* in that person’s absence, court cannot accord complete relief among existing parties; or,
* that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may:
1. impair or impede the person’s ability to protect the interest; or,
2. leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations.

Question 3

Requirements for removal to federal court

Answer 3

A ∆ must obtain the consent of all other ∆s to remove the suit from state to federal court.

A ∆ can remove a case to federal court if:
* the case falls within the court’s original jurisdiction;
* ∆ files a notice of removal in federal court within 30 days of receiving summons & complaint; and,
* a copy of the notice is provided to the state court and other parties.

Question 4

Subject matter jurisdiction: dual citizenship for corporations

Answer 4

For diversity purposes, corporations have dual citizenship.

A corporation is a citizen where they are incorporated and where they have their principal place of business (PPOB).

A corporation’s PPOB is the corporation’s nerve center–i.e., the place where a corproation’s officers direct, control, and coordinate the corporation’s activities.

Question 5

Impleader

Answer 5

A ∆ may add a nonparty to a suit by filing a 3rd party complaint alleging that the non-party is liable to the ∆ for all or part of the π’s claim (indemnity).

The ∆ need only obtain the court’s leave if more than 14 days have passed since the ∆ served her original answer.

However, a third party complaint should be dismissed if it asserts that the non-party is directly liable to the π (and ∆ says they’re not liable) or liable to ∆ for another harm.

Question 6

Statutory interpleader

Answer 6

For statutory interpleader actions, subject matter jurisdiction requires an amount in controversy of at least $500 and minimal diversity between two or more claimants.

Personal jurisdiction exists over any claimant who was served with process anywhere in the U.S.

Venue is proper in any judicial district where any claimant resides.

Question 7

Serving process on an organization

Answer 7

An organization can be served by:
* following the service of process rules of the state where the district court is located or where service is made; or,
* delivering process to an officer or agent authorized to receive it and, if required by statute, mailing process to the organization.

Question 8

service of process on federal officer/employee

Answer 8

A federal officer or employee sued in an individual capacity for actions related to his government duties must be served with process pursuant to the rules for serving an individual.

Process must also be served on the U.S. government, but if the π fails to do so, court must allow a reasonable time to cure that failure.

Question 9

relief from judgment

Answer 9

FRCP 60(b) allows a party to obtain extraordinary relief within 1 year of the entry of a final judgment or order based on:
* mistake, inadvertence, surprise, or excusable neglect;
* newly discovered evidence; or,
* an opposing party’s fraud, misrepresentation, or misconduct.

Question 10

Motion to alter or amend final judgment

Answer 10

A party can move to alter or amend a final judgment, including a summary jdugment, within 28 days after entry of judgment.

One ground for such a motion is that there has been an intervening change in the controlling law.

Question 11

Personal jurisdiction timing

Answer 11

Lack of personal jurisdiction must be raised at the start of a case or it is waived.

Question 12

Production of ESI documents

Answer 12

In response to a motion to compel the production of ESI, the producing party must show that the ESI is not reasonably accessible due to undue burden or cost.

If shown, the court will order the production of the ESI only if the requesting party demonstrated good cause for the production.

Question 13

renewed judgment as a matter of law (RJMOL)

Answer 13

The standard applied by the court in deciding a motion for RJMOL is whether there is legally sufficient (i.e., substantial) evidence in the record to support a verdict for the nonmovant. The court must view the evidence and draw all reasonable inferences in the nonmovant’s favor.

Question 14

Initial conference 26(f)

Answer 14

The parties must hold an initial conference to plan for discovery. The conference must be held as soon as practicable and at least 21 days before a scheduling conference with the court is held or the judge’s scheduling order is due.

Question 15

Final judgment rule re: interlocutory appeals

Answer 15

The interlocutory appeals statute allows certain orders to be appealed before the entry of a final judgment–e.g., the grant or denial of a preliminary injunction.

Thus, a TRO extended beyond 14 days is equvalent to a preliminary injunction and is immediately appealable under this statute.

Question 16

Discovery of expert materials

Answer 16

The facts known and opinions held by an expert not expected to testify at trial are privileged and not discoverable unless:
* the information relates to a court-ordered physical or mental examination; or,
* exceptional circumstances make it impracticable to obtain that information by other means.

Question 17

JMOL timing

Answer 17

A party may move for JMOL after the nonmovant has had an opportunity to present its case to the jury.

However, this motion must be asserted before the case is submitted to the jury or the motion is waived.

Question 18

Appellate standard for review: abuse of discretion

Answer 18

An appellate court uses the abuse of discretion standard when reviewing a district court’s discretionary ruling. This is a highly deferential standard under which the appellate court will only reverse the district court’s ruling if it was clearly arbitrary or unreasonable.

Examples of discretionary rulings:
* creation of jury instructions (not content);
* grant/denial of preliminary injunction;
* admissibility of evidence.

Question 19

Appellate standard of review: clear error

Answer 19

In a bench trial, the judge serves as a finder of fact and interpreter of law. On appeal, the judge’s findings of fact are reviewed for clear error (high deference to judge), while its conclusions of law are reviewed de novo (no deference).

fact –> high deference to judge/likely won’t overturn unless clear error found

law –> no deference/appellate court decides

Question 20

Timeline for instructing jury

Answer 20

In a jury trial, a court:
* must inform the parties of π’s proposed instructions before instructing the jury and closing arguments;
* must allow the parties to object on the record and outside the jury’s presence before the instructions and closing arguments are delivered; ad,
* may instruct the jury at any time before it is discharged.

Question 21

relation-back doctrine

Answer 21

An amended pleading that changes a party to a lawsuit after the statute of limitations has expired will “relate back” to the date of the original pleading if the statute of limitations allows.

Question 22

Motion for a new trial: erroneously admitted evidence

Answer 22

A motion for a new trial can be made on several grounds, including that a prejudicial trial error occurred because the trial court erroneously admitted evidence that should have been excluded.

Question 23

Res judicata (claim preclusion)

Answer 23

Under claim preclusion, a valid final judgment on the merits precludes identical parties from relitigating identical claims.

Claims are identical if:
* they arise from the same transaction, occurrence, or series thereof; and,
* could have been raised in the first action (this is true even if claims are labeled differently).

Question 24

Manifest justice standard

Answer 24

At the final pretrial conference, a federal district court judge will issue a final pretrial order that formulates a plan for trial. The court may modify this order only to prevent manifest justice.

Note, a pretrial order is not appealable because it is not a final judgment.

Question 25

Proper complaint

Answer 25

A complaint filed in federal court must contain: * a caption with the court, title, and parties; * a short and plain statement of court's jurisdiction; * short and plain statement of claims showing that π entitled to relief; * demand for relief; and, * attorney's or unrepresented π's signature and contact information.

Question 26

Intervention

Answer 26

Intervention **must** be permitted when the non-party's interest is **inadequately represented** and deciding the case may impair her ability to protect that interest (i.e., intervention as of right). Intervention **may** be permitted when the non-party's claim of defense shares a **common question** with the main action (i.e., permissive intervention).

Question 27

Required disclosure timeline

Answer 27

Pretrial disclosures must be made at least **30 days before trial.** Objections to the use at trial of disclosed deposition testimony, documents, or exhibits must be made **within 14 days** after the disclosures or such objections are generally waived.

Question 28

additur v. remittur

Answer 28

A federal court cannot grant a request to increase an allegedly inadequate jury award of damages (i.e., additur) but it can reduce an allegedly excessive jury award or order a new trial (i.e., remittur)

Question 29

sanctions for noncompliance with pretrial conference

Answer 29

A federal court must order the payment of the other party's reasonable expenses and may impose reasonable sanctions on any attorney or party who: * failed to attend a pretrial conference; * was substantially unprepared for conference; * did not participate in good faith in conference; or, * failed to obey a pretrial order.

Question 30

Response to request for admission

Answer 30

A party's admission or failure to adequately respond to a request for admission **within 30 days after being served** with the request results in the matter being conclusively established in the action.

Question 31

FRCP 48: how many jurors are required? and how many required for a verdict?

Answer 31

FRCP 48 requires that a jury begin with **at least 6 and no more than 12 members**. The verdict must be **unanimous** and returned by a jury of **at least 6 members**--unless the parties stipulate otherwise.

Question 32

Compulsory counterclaim

Answer 32

A counterclaim is a claim for relief asserted against an opposing party in response to that party's earlier claim. A counterclaim is compulsory when it: * arises from the same transaction or occurrence as the opposing party's claim; and, * does not require adding another party over whom the court cannot acquire jurisdiction.

Question 33

time limit for domestic service of process

Answer 33

A ∆ in the U.S. must be served with process within **90 days**after the π files the complaint, unless good cause exists for missing this deadline. Good cause exists if service was delayed due to matters outside of the π's control (e.g., sudden illness or injury). If good cause is shown, the court m ust extend the time for service of process for an appropriate period.

Question 34

Final judgment rule: jurisdiction

Answer 34

A district court's decision on jurisdiction is NOT final and can be challenged in an appeal from a final judgment. When a judgment is not final; an appellate court lacks jurisdiction to hear merits of case.

Question 35

Removal power

Answer 35

Only ∆s listed in the π's complaint have the power to remove a case from state to federal court. A party joined to the suit through a counterclaim is not considered a ∆ for removal purposes.

Question 36

Requirements for motion to compel disclosure or discovery request

Answer 36

A motion to compel must include a certification that the movant has, in good faith, **conferred or attempted to confer** with the non-compliant party or non-party. A motion to compel a party must be filed in court where discovery is or will be taken.

Question 37

Preserving error in jury instructions

Answer 37

A jury instruction error is preserved for appeal when a party raises the issue: * at the **close of evidence by filing a written request** for the proposed instruction and obtaining a definitive court ruling on the record; or, * **before the court instructs the jury** by clearly identifying, and stating the grounds for, the objection on the record.

Question 38

General verdict with answers

Answer 38

A general verdict with answers requires the jury to decide which party should prevail and provide answers to questions on each factual issue. If the verdict and answers are inconsistent, the judge must: * order a new trial; * direct the jury to further consider its answers and verdict; or, * enter a judgment consistent with the answers, and disregard the jury's verdict.

Question 39

Raising Rule 12(b) motions

Answer 39

When a motion pursuant to Rule 12(b) is initially made, a party may join with that motion all other motions permitted by Rule 12 that are then available to that party. If a party makes a Rule 12(b) motion and fails to join certain other available defenses or objections, the party may not later raise those objections and defenses.

Question 40

Subject matter jurisdiction

Answer 40

There are two types of subject matter jurisdiction: federal question jurisdiction and diversity jurisdiction. In federal question jurisdiction, federal courts have original jurisdiction over claims that arise from federal laws or treaty. In diversity jurisdiction, federal courts have original jurisdiction in diversity actions, which require complete diversity and an amount in controversy in excess of $75,000.

Question 41

Supplemental jurisdiction

Answer 41

Federal courts may hear additional claims in an action that form part of the same case or controversy under Article III of the Constitution. Claims form part of same case or controversy if they derive from a common nucleus of operative fact. Note, cross-claims that satisfy the "transaction or occurrence" test, presumptively satisfy the common nucleus of operatie fact test.

Question 42

Cross-claims

Answer 42

Under FRCP 13(g), a ∆'s answer may state a cross-claim against a co-∆ any claim that arises out of the same transaction or occurence that is the subject matter of the original action between the π and ∆.

Question 43

# MEE "same transaction or occurrence" test

Answer 43

To determine whether two different claims arise out fo the same transaction or occurrence, federal courts look at a number of factors: * whether the issue of law and fact in the π's claims and ∆'s (crossclaim or other claim) are essentially the same; * whether the same evidence woudl support or refute the π's claim and ∆'s claim; * whether there is a logical relationship between the π's claim and ∆'s claim; and, * whether res judicata would bar subsequent suit on ∆'s claim. Presence of any of these factors support a conclusion that the "transaction or occurrence" requirement is met.

Question 44

Final judgment rule

Answer 44

Under the final judgment rule, a federal appellate court generally has no jurisdiction to hear an appeal until the district court has issued a final judgment--i.e., a decision that fully resolves the dispute on the merits, and leaves nothing for the court to do but execute the judgment.

Question 45

final judgment rule: more than 1 claim

Answer 45

When more than 1 claim for relief is presented in an action, FRCP provides that a decision that adjudicates fewer than all the claims in the action will not be considered a final judgment and not subject to immediate appeal. However, a federal court may designate particular claims as immediately appealable "final judgments" if they expressly determine there is **no just reason for delay**.

Question 46

Collateral order doctrine

Answer 46

An immediate appeal may be taken from an interlocutory order that conclusively determines an important issue in a case if that issue is **independent of (collateral to) the merits of the action** and if a delay in appellate review would effectively preclude the losing party from an opportunity to vindicate its rights on appeal.

Question 47

Mandamus or prohibition

Answer 47

In exceptional cases, an interlocutory order may be immediately appealable by seeking a writ of mandamus or prohibition from the appellate court reversing the trial court's ruling.

Question 48

Pendant appellate jurisdiction

Answer 48

Another way appellate courts can review claims that do not satisfy the final judgment rule is through pendant appellate jurisdiction. A party seeking the review of a non-final order on the ground that it's pendant to an appealable order would need to show that the two rulings were "inextricably intertwined" or that "meaingful review" of the ruling over which the court has jurisdiction would not be possible unless the court also reviewed the non-final judgment.

Question 49

Personal jurisdiction: traditional bases

Answer 49

A court has jurisdiction over a non-resident ∆ if any of the traditional bases for personal jurisdiction are met: domicile, presence and personal service, and consent.

Question 50

Personal jurisdiction: long arm statute

Answer 50

For a court to exercise jurisdiction over a nonresident, there must be an applicable long arm statute. If the long arm statute authorizes jurisdiction as far as the Constitution allows, the long arm analysis is the same as the constitutional due process analysis.

Question 51

Personal jurisdiction: due process

Answer 51

The exercise of jurisdiction must comply with due process. Due process requires sufficient minimum contacts and compliance with the traditional notions of fair play and substantial justice, under *International Shoe.*

Question 52

Personal jursidiction due process: minimum contacts types

Answer 52

There are two types of minimum contacts: general jurisdiction and specific jurisdiction.

Question 53

Personal jurisdiction due process: general jurisdiction

Answer 53

General jurisdiction requires that contacts are "systematic and continuous" or "consistent and pervasive" as to render the ∆ essentially "at home" in the forum state. The Supreme Court seemed to limit the "essentially at home" basis to domicile. If general jurisdiction is satisfied, the relatedness rule applies, which means the cause of action does not need to be related to contacts with the forum.

Question 54

Personal jurisdiction due process: specific jurisdiction

Answer 54

Specific jurisdiction requires that: * the ∆ purposefully availed itself to the privileges and benefits of the forum; * it is reasonably foreseeable that the ∆ would be haled into court in the forum state; and, * the claim arises out of the ∆'s contacts with the forum.

Question 55

Personal jurisdiction: fairness analsyis

Answer 55

Even when a nonresident ∆ has establsihed the necessary minimum contacts with the forum state, the exercise of peresonal jurisdiction must not offend traditional notions of fair play and substantial justice. The ∆ must make a compelling case for fairness and consideration to outweigh the existence of minimum contacts. Burger King factors: * trial in the forum is gravely difficult and inconvenient; * forum state's interest in adjudicating the dispute; * π's interest in convenient relief; * interstate judicial system's interest in efficiency; * state's interest in furthering social policies.

Question 56

TRO: good cause

Answer 56

A TRO generally applies for **14 days **or until a preliminary injunction hearing can take place--whichever occurs first. A court can extend a TRO beyond this time if: * the opposing party consents; or, * the movant provides good cause. Good cause generally requires the movant to show that an unforeseeable event prevents the scheduled hearing from taking place.

Question 57

Contents for written notice of deposition

Answer 57

To compel a party deponent's attendance at a deposition, the deposing party must serve the deponent with written notice. When the deponent is an organization, the notice must describe the matters for examination with **reasonable particularity**. The organization must then designate one or more individuals to testify on its behalf.

Question 58

Amended v. supplemental pleading

Answer 58

An amended pleading is used to set forth a transaction, occurrence, or event that arose before the pleading to be amended was filed. In contrast, a supplemental pleading is used to set forth a transaction, occurrencce, or event that arose after the pleading to be supplement was filed.

Question 59

Subject matter jurisdiction in relation to supplemental jurisdiction

Answer 59

A federal court may generally exercise supplemental jurisdiction over claims that fall outside its original SMJ when those claims share a common nucleus of operative facts with a claim that falls within its original SMJ. Supplemental jurisdiction does not contaminate diversity if joined party is diverse from opposing party. OK if joined party and π are same.

Question 60

Personal jurisdiction: consent

Answer 60

Personal jurisdiction can be established through the ∆'s waiver (failing to object to personal jurisdiction in pre-answer motion or answer); implied consent; or express consent (e.g., forum selection clause).

Question 61

Required joinder: tortfeasors

Answer 61

Alleged tortfeasors facing joint and several liability are not required parties because: * complete relief can be granted in their absence; * the tortfeasors in the suit will not be subject to multiple or inconsistent obligations; and, * the absent tortfeasors can adequately protect their interests in a future action.

Question 62

Judgment on the pleadings

Answer 62

A court can enter judgment on the pleadings when the undisputed material facts in the pleadings establish that the movant is entitled to judgment as a matter of law (JMOL). If each party is claiming the other party is responsible, then there are facts in dispute and no JMOL.

Question 63

Motion for summary judgment

Answer 63

A court should grant summary jdugment if the movant shows that there is **no genuine issue of material fact** and she is entitled to JMOL (e.g., because the SOL has expired).

Question 64

grounds for new trial: new evidence

Answer 64

A court will grant a motion for a new trial based on newly discovered evidence if the movant shows: * the evidence was unknown to the movant at trial; * due diligence was used to discover the evidence before trial ended; * evidence is material; and, * a new trial with the evidence will likely have a different outcome.

Question 65

grounds for a new trial: prejudice

Answer 65

A new trial is warranted when an attorney engaged in prejudicial misconduct--i.e., misconduct that affects a party's substantialiasing rights by influencing the jury's verdict. if misconduct is not prejudicial, then it is merely harmless error that does not warrant a new trial--e.g., attorney apologizes and judge tells jury to disregard comment.

Question 66

discovery of privileged information

Answer 66

After being notified that privileged information was produced, the receiving party must: * promptly return, sequester, or destroy the information and any copies; * not use or disclose the information until the claim of privilege is resolved; and, * take reasonable steps to retrieve the information already disclosed.

Question 67

challenges to potential jurors

Answer 67

During jury selection, each party is entitled to: * 3 preemptory challenges to strike a potential juror for any reason (other than race, ethnicity, gender) without an explanation; and, * an unlimited number of challenges for cause to strike a potential juror for bias or lack of impartiality.

Question 68

choice of law in venue transfer

Answer 68

When venue is transferred between federal districts, the **original court's choice of law rules apply** when: * **proper venue** existed in the original court; and, * SMJ arises under **diversity jurisdiction**.

Question 69

serving process on ∆ at home/residence

Answer 69

A π can serve an individual ∆ located in the U.S. by: * following the rules of the state where the court sits or service is made; * having process delivered to ∆ personally (or his authorized agent); or, * having process delivered to ∆'s dwelling and left with a ***resident*** of suitable age and discretion. (if just staying there as guest, doesn't count).

Question 70

Subject matter jurisdiction in class actions

Answer 70

Federal courts can exercise diversity jurisdiction over a class action if: * the amount in controversy exceeds the sum or value of $5,000,000; and, * any member of a class of πs is a citizen of a state different from any ∆ (i.e, minimal diversity).

Question 71

Erie doctrine

Answer 71

In Erie Railroad Co., the Supreme Court held that federal courts sitting in diversity must look to state law for the substantive rules of decisions governing such cases. However, in a series of subsequent cases, the Court made clear that federal law would continue govern procedural matters in federal court, even if the federal procedure affected the outcome of the litigation. If there is a federal procedural rule that governs an issue, it applies unless it exceeds statutory authorization of Congress's rulemaking power.

Question 72

Class actions & conflict of laws

Answer 72

In Shady Grove, the Court considered a New York law barring class actions to enforce statutory damages claims. The Court concluded that such actions can be maintained in federal court, despite the state law, if the action is authorized by Rule 23. According to the Court , Rule 23 is both a procedural rule with the scope of the Rules Enabling Act and a rule that entities a π whose suit meets the specified criteria to pursue his claim as a class action.

Question 73

deadline to respond to requests for production

Answer 73

A request for production can be served before the parties hold an initial planning conference, and the other party must respond to that request **in writing within 30 days after the conference**. If the request for production is served AFTER the conference then the response is due **within 30 days after the request is served.**

Question 74

Depositions: motion to compel response

Answer 74

When a deponent refuses to answer a question at a deposition, the questioning party may file a motion to compel a response. When the deponent is a nonparty, that motion must be filed in the district where the deposition occurred. But when the deponent is a party, the motion must be filed where the lawsuit is pending.

Question 75

Younger abstention doctrine

Answer 75

The Younger abstention doctrine requires a federal court to abstain when a declaratory judgment or injunction by the court would interfere with a pending state criminal, or particular civil, proceeding that: * involved an important state interest; and, * provides an adequate opportunity to litigate federal issues.

Question 76

Work product

Answer 76

Ordinary work product is any material prepared by or for an attorney in anticipation of litigation that contains factual information related to the case. These materials are protected from discovery unless the requesting party shows that it: * has a substantial need for the materials; and, * cannot obtain the information without undue hardship (i.e., if they can obtain information by other means, they do not have substantial need).

Question 77

Subject matter jurisdiction citizenship determination timing

Answer 77

Citizenship for subject matter jurisdiction is determined on the date that the π's complaint is filed with the court.

Question 78

Appealability of remand orders

Answer 78

A federal district court's order to remand a case to state court--whether for lack of SMJ or procedural error in the remand--cannot be appealed absent limited circumstances: * class actions appealed within 10 days; * civil rights issues; * removal by federal government, agency, officer; * Federal Deposit Insurance Corp

Question 79

Interrogatories

Answer 79

Interrogatories are written questions served by one party on another party that may inquire about any matter within the scope of discovery. This simple and inexpensive method of discovery is primarily used to identify facts and information that might lead to other evidence--e.g., identity of potential witnesses.

Question 80

Post-trial correction of mistakes

Answer 80

* *Before an appeal is docketed* in the appellate court, a district court can correct a mistake in a judgment, order, or other part of the record on its own initiative or pursuant to a party's motion. * *But after an appeal has been docketed*, the district court can correct the mistake only with the appellate court's leave.

Question 81

Service of process on U.S., agencies, or its employees

Answer 81

When suing the U.S., its agencies, or its employees, the π must serve process on: * the U.S. attorney (or designated agent) for the district where the suit is filed or the civil-process clerk at the U.S. attorney's office; * the U.S. attorney general; and, * any agency or officer whose official conduct is being challenged (unless specific employee or officer mentioned, assume its agency itself).

Question 82

Service of questions and objections in written depositions

Answer 82

For a written deposition: * cross-questions must be served within **14 days** after service of direct questions; * redirect questions must be served **within** **7 days** after service of cross-questions; and, * re-cross questions must be served **within 7 days** after service of redirect questions. Objections are due at the same times.

Question 83

method of defeating summary judgment

Answer 83

The nonmovant can defeat a summary judgment motion by **showing specific disputed facts** through affidavits, declarations, discovery, or other materials containing admissible evidence. However, the nonmovant cannot defeat the motion by relying on allegations in the pleading.

Question 84

Rule 11

Answer 84

Under Rule 11 of the FRCP, every pleading, written motion, or other paper (except discovery requests and responses) must be signed by an attorney, or by the party if the party unrepresented. An attorney's signature on a pleading certifies to the best of the person's knowledge, information, and belief formed after an inquiry reasonable under the circumstances: * pleading not being presented for improper purpose; * legal contentions warranted by existing law; * factual contentions have evidentiary support after a reasonable opportunity for further investigation or discovery; and, * denials of factual contentions are warranted on evidence or if specifically identified, reasonably based on beleif of lack of information.

Question 85

general denials

Answer 85

The FRCP allows general denials, but only if the party intends in good faith to deny all the allegations of a complaint, icluding the jurisdictional grounds. A ∆'s answer must respond to legal conclusions stated in the complaint as well as to the factual allegations. Because there is almost always something in teh complaint that, in good faith, should be admitted, a general denial is likely to be improper in most cases.

Question 86

before seeking sanctions

Answer 86

Before a party may seek sanctions under Rule 11, the **party must serve on the opposing party **a motion that describes the specific conduct that allegedly violated the rule. The opposing party must be given **21 days to withdraw or correct the challenged pleading**. If the 21 day period passes, and the pleading is not corrected, the motion for sanctions may be filed with the court.

Question 87

sanctions: court's discretion factors

Answer 87

Non-exhaustive list of factors court may consider: * whether improper conduct was willful or negligent; * whether part of pattern of activity or isolated event; * whether infected entire pleading or one particular count or defense; * whether person engaged in similar conduct; * whether it was intended to injure; * what effect it had on litigation process in time or expense; * whether responsible person is trained in law; * what amount, given the financial resources of the responsible person, is needed to deter that person, from repitition in the same case; * what amount is needed to deter similar activity by other litigants.

Question 88

sanctions: court's discretion

Answer 88

Under the FRCP, court has considerable discretion in imposing sanctions, and is not obligated to impose any sanctions. The purpose of any sanctions award should be to deter similar future conduct by the lawyer or others.

Question 89

types of sanctions

Answer 89

Sanctions can be monetary or nonmonetary. If the sanctions are monetary, they can incldue an order to pay a penalty into court or if imposed on motion and warranted for effective deterrance, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from violation. Examples of nonmonetary sanctions would be striking the offending paper; issuing an admonition; reprimand; or censure, requiring participation in seminars or other education programs; or referring the matter to disciplining authorities.

Question 90

sanctions enforcement

Answer 90

Sanctions may be imposed upon any attorney, law firm, or party that violated the rule or is responsible for the violation. Sanctions may be imposed on a party when the party authorizes its attorney to pursue a claim it knew or should have known was legally and factually baseless.

Question 91

sanctions enforcement: lawyer who filed inaccurate pleading

Answer 91

A lawyer who files an inaccurate pleading is not subject to sanctions if the lawyer acted in good faith after making a pre-filing inquiry that was reaosnable under the circumstances. Reaosnableness is judged as of the time the pleading was submitted, and depends on such factors as how much time for investigation was available to the signer; whether he had to rely on a client for information as to the facts underlying the pleading, motion, or other paper; whether the papers were based on a plausible view of the law; or whether he depend on forwarding counsel or another member of the bar.

Question 92

permissive joinder

Answer 92

Under FRCP 20(a)(2), persons may be joined in one action as ∆s if: * any right to relief is asserted against them jointly, or severally, or in the alternative with respect to or arising out of the same transaction or occurrence or series of occurrences; and, * any questions of law or fact common to all ∆s will arise in the action (commonality).