civ pro

Question 1

civ pro

Civ pro MBE tips

Answer 1

1. think of how to make the case go away
2. if there are dates, make a timeline
3. be open-minded about idx
4. carefully note the c/a

Question 2

civ pro

msj std

Answer 2

the movant must show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.

Question 3

civ pro

time to request a jury trial

Answer 3

A demand for a jury trial must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury.

Question 4

civ pro

holidays and weekends

Answer 4

In computing whether a party has complied with the rules for undertaking an action within the specified time period, when the last day of the period would otherwise fall on a holiday, the action may be undertaken on the next non-holiday weekday.

Weekend days are counted in determining whether a party has taken action, such as making a demand for a jury trial, within the permissible time period.

Question 5

civ pro

diversity jdx

Answer 5

U.S. district courts have diversity jurisdiction when both (i) no plaintiff is a citizen of the same state as any defendant and (ii) the amount in controversy in the action exceeds $75,000. To be a citizen of a state, a person must be a citizen of the United States and a domiciliary of the state. Domicile is determined at the time the action is commenced.

Question 6

civ pro

relation back of amended complaint

Answer 6

An amendment to a pleading will relate back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading.

Question 7

civ pro

statutory interpleader

Answer 7

1. any two claimants diverse
2. at least $500 in controversy
3. national SOP

Question 8

civ pro

venue

Answer 8

In general, venue in a federal civil action is proper in only one of the following judicial districts: (i) a judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located, or (ii) a judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located. If neither situation applies, venue is proper in the judicial district in which one of the defendants is subject to personal jurisdiction.

residence= domicile for individuals; where PJ for businesses

Question 9

civ pro

supplemental jdx to a federal claim

Answer 9

If the original claim is based on federal-question jurisdiction, then a nonfederal claim may be joined only if diversity jurisdiction exists or if the two claims are part of the same case or controversy as the federal claim such that supplemental jurisdiction applies.

Question 10

civ pro

service for in rem cases

Answer 10

Although in rem proceedings are commenced against property, they must still satisfy due process requirements for personal jurisdiction because they affect the rights of individuals in the property. Due process is met if the notice is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” It is not sufficient to simply post the notice on the property or publish the notice in a newspaper as to persons who are known to have an interest in the property and whose whereabouts are reasonably ascertainable.

Question 11

civ pro

PJ approach

Answer 11

In Personam Jurisdiction
Due Process Requirements
   *Minimum Contacts
         Purposeful Availment
         Specific and General Jurisdiction
   *Fair Play and Substantial Justice
          Forum State Interest
          Burden on Defendant
          Interest of Judicial System
          Shared Interest of States

Question 12

civ pro

SMJ Approach

Answer 12

1. Objection to Jurisdiction
2. Federal Question Jurisdiction
3. Diversity Jurisdiction
   a. Complete Diversity
   Citizenship of Parties
   Corporations
   *Principal Place of Business
   *Foreign Corporation
   b. Amount in Controversy
   *Aggregation of Claims by a Single P Against a Single D
   *Aggregation of Claims by Multiple P’s

Question 13

civ pro

“SMJ”

Answer 13

The term “subject matter jurisdiction” refers to a court’s competence to hear and determine cases of the general class and subject to which the proceedings in question belong. The most common congressional grants of subject matter jurisdiction are federal question jurisdiction and diversity jurisdiction.

Question 14

civ pro

“Objection to SMJ”

Answer 14

An objection to subject matter jurisdiction can be presented by any party at any stage of a proceeding, including on appeal, or may be raised by the court.

Question 15

civ pro

“FQ jdx”

Answer 15

Under federal question jurisdiction, district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.

Question 16

civ pro

“Diversity jdx”

Answer 16

The U.S. district courts have jurisdiction over actions when: (i) the parties to an action are citizens of different states or citizens of a state and citizens or subjectsz of a foreign state and (ii) the amount in controversy in the action exceeds $75,000. In general, when these requirements are met, a federal court may exercise jurisdiction over the action, regardless of the legal subject of the controversy.

Question 17

civ pro

“Complete diversity”

Answer 17

Diversity jurisdiction requires complete diversity between opposing parties in a case. There is no diversity of citizenship if any plaintiff in the case is a citizen of the same state as any defendant in the case or if any plaintiff and any defendant are aliens. Two plaintiffs in a case may be from the same state without destroying diversity, as long as no plaintiff is from the same state as any defendant in the case. When the action is commenced, there must be complete diversity between opposing parties. The citizenship of each party must be determined to ensure complete diversity.

Question 18

civ pro

“citizenship of parties”

Answer 18

In general, a person is a domiciliary of the state in which he or she is present and intends to reside for an indefinite period. A person can only have one domicile at a time.

Question 19

civ pro

“principal place of business”

Answer 19

The principal place of business refers to the “nerve center” of the corporation. The nerve center is generally the location from which the high-level officers direct, control, and coordinate the activities of the corporation. Typically, the nerve center is the corporate headquarters.

Question 20

civ pro

“foreign corporation”

Answer 20

A foreign corporation will be deemed a citizen of the country in which it is incorporated.

Question 21

civ pro

“amount in controversy”

Answer 21

The amount in controversy must exceed the sum or value of $75,000, exclusive of interest, costs, and collateral effects of a judgment. The amount in controversy is determined at the time the action is commenced in federal court, or, if the action has been removed to federal court, at the time of the removal. The party seeking to invoke federal court jurisdiction must allege that the action satisfies the amount-in-controversy requirement. In general, a plaintiff’s good-faith assertion in the complaint that the action satisfies the amount-in-controversy requirement is sufficient.

Question 22

civ pro

“aggregation of claims by multiple plaintiffs”

Answer 22

If the action involves multiple plaintiffs, then the value of their claims may be aggregated only if the multiple plaintiffs are enforcing a single title or right in which they have a common or undivided interest. If multiple plaintiffs, each having separate and distinct claims, unite for convenience or economy in a single suit, then each plaintiff’s aggregate claims are judged separately in determining whether the amount-in-controversy requirement has been met. If the aggregate claims of at least one plaintiff separately meet the amount-in-controversy requirement, then the court has diversity jurisdiction over that plaintiff’s claims, provided the diversity-of-citizenship requirement is met. The court may also have supplemental jurisdiction over the claims of any other plaintiff, even though that plaintiff’s claims do not meet the amount-in-controversy requirement

Question 23

civ pro

“supplemental jdx”

Answer 23

A district court with jurisdiction over a claim may exercise “supplemental jurisdiction” over additional claims over which the court would not independently have subject matter jurisdiction but that are so related to the original claim that the additional claims form part of the same case or controversy under Article III of the U.S. Constitution. In judging whether the claims are related, the test is whether they arise out of a “common nucleus of operative fact” such that all claims should be tried together in a single judicial proceeding.

Question 24

civ pro

“SJ for permissive joinder of a party”

Answer 24

Although the additional claim is not required to satisfy the amount-in-controversy requirement for purposes of supplemental jurisdiction, when the additional claim is asserted by a party seeking to join the action under permissive joinder, the addition of that party cannot result in a violation of the requirement for complete diversity of citizenship.

Question 25

# civ pro "PJ"

Answer 25

Personal jurisdiction refers to the judicial power over the persons or property involved in the cases or controversies before it. There are three general types of personal jurisdiction: (i) in personam jurisdiction; (ii) in rem jurisdiction; and (iii) quasi-in-rem jurisdiction.

Question 26

# civ pro "in personam jdx"

Answer 26

In personam jurisdiction is the power that a court has over an individual party. There are four bases for in personam jurisdiction: (i) voluntary presence; (ii) domicile; (iii) consent; and (iv) long-arm statutes.

Question 27

# civ pro "Due process requirements"

Answer 27

Due process requirements are satisfied if the nonresident defendant has certain minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

Question 28

# civ pro "minimum contacts"

Answer 28

Presently, any attempt to gain in personam jurisdiction, under whatever basis, is subject to the International Shoe requirement of minimum contacts.

Question 29

# civ pro "purposeful availment"

Answer 29

A defendant’s contacts with the forum state must be purposeful and substantial, such that the defendant should reasonably anticipate being taken to court there. Foreseeability depends on whether a defendant recognizes or anticipates that by running his business, he runs the risk of being party to a suit in a particular state.

Question 30

# civ pro "specific and general idx"

Answer 30

The scope of the contacts necessary for the assertion of personal jurisdiction depends on the relationship that the cause of action has with the forum state. A court will have specific jurisdiction over a defendant when the cause of action arises out of or closely relates to a defendant’s contact with the forum state. A court will have general jurisdiction when the cause of action does not arise out of or relate to the defendant’s contact with the forum state, but the defendant’s contact with the state has been systematic and continuous.

Question 31

# civ pro "fair play and substantial justice"

Answer 31

A court must determine if maintenance of the action would “offend traditional notions of fair play and substantial justice.” Courts consider various factors, including: (i) the interest of the forum state in adjudicating the matter; (ii) the burden on the defendant of appearing in the case; (iii) the interest of the judicial system in the efficient resolution of controversies; and (iv) the shared interests of the states in promoting common social policies.

Question 32

# civ pro when to appeal an order for new trial

Answer 32

An order for a new trial is not appealable because it is not a final judgment. A party who wants to raise on appeal the grant of a new trial must wait until the new trial has occurred and resulted in a final judgment. The party may then appeal from that judgment and raise as an issue the order for the new trial.

Question 33

# civ pro De novo review

Answer 33

Appellate review of legal rulings is de novo. The appeals court will use the trial court’s record, but it reviews the evidence and law without deference to the trial court’s rulings.

Question 34

# civ pro Motion for a judgment as a matter of law

Answer 34

When ruling on a Rule 50 motion for judgment as a matter of law, the court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party. It may not consider the credibility of witnesses or evaluate the weight of the evidence, and it must disregard all evidence favorable to the moving party that the jury is not required to believe. Reviewed de novo.

Question 35

# civ pro time to respond to an amended pleading

Answer 35

Unless the court orders otherwise, a party must respond to an amended pleading within the later of 14 days after service of the amended pleading or the time remaining for response to the original pleading.

Question 36

# civ pro when can parties ask for new jury instructions

Answer 36

Although the court may require the parties to file jury instructions at the close of evidence or at any earlier reasonable time, a party can file a request for jury instructions on issues that could not have reasonably been anticipated as of the earlier time set by the court for such requests.

Question 37

# civ pro issue preclusion

Answer 37

The doctrine of issue preclusion, often called “collateral estoppel,” precludes the re-litigation of an issue of fact or law that has already been necessarily determined by a final and valid judgment as part of an earlier claim. The party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action.

Question 38

# civ pro default judgment

Answer 38

When a party has failed to plead or otherwise defend an action and that failure is shown by affidavit or otherwise, the court clerk must enter the party’s default. Once a default is entered against a party, the plaintiff may seek a default judgment.

Question 39

# civ pro time to serve a complaint

Answer 39

Although the court can dismiss an action for failure to serve process within 120 days of filing the complaint, this dismissal is without prejudice. Note that as of December 1, 2015, service must be made within 90 days

Question 40

# civ pro requirements for discovery sanctions

Answer 40

Generally, attempting to obtain evidence from the plaintiff without a court order and making a motion to compel are prerequisites to obtaining any sanctions under Rule 37.

Question 41

# civ pro final judgment rule

Answer 41

Under the final judgment rule, a federal appellate court has jurisdiction over an appeal of a final judgment of the trial court. A final judgment is a decision on the merits that leaves nothing for the court to do but execute the judgment. Here, although the trial court granted the dealer’s motion for summary judgment with regard to the issue of liability, it denied the motion as to the matter of damages and thus the issue of damages remained. Consequently, the trial court’s order was not a final judgment.

Question 42

# civ pro bond requirement for statutory interpleader

Answer 42

In order to file a federal statutory interpleader action, the stakeholder must be willing to either deposit the property at issue with the court or to post a bond in an appropriate amount.

Question 43

# civ pro leave of court for depositions

Answer 43

Unless the parties agree to the deposition, leave of the court must be obtained to (i) exceed the 10-deposition limitation, (ii) depose a witness a second time, or (iii) depose a person before the deposing party has complied with its initial disclosure requirements under Rule 26(a).

Question 44

# civ pro joinder of defendants

Answer 44

In order for joinder of defendants to be proper, any right to relief must arise out of the same transaction, occurrence, or series of transactions or occurrences.

Question 45

# civ pro mx dismiss for failiure to state a claim

Answer 45

When a defendant files a motion to dismiss for failure to state a claim upon which relief can be granted and attaches materials outside the pleadings to the motion, the court must treat the motion as a summary judgment motion if the court considers such materials in reaching its decision on the motion.

Question 46

# civ pro SL procedural or substantive?

Answer 46

substantive

Question 47

# civ pro is stay automatic during appeal?

Answer 47

If an appeal is permitted, it will not stay proceedings in the district court unless the district court or the court of appeals so orders.

Question 48

# civ pro numerosity

Answer 48

In order for a representative of a class to sue on behalf of all members of a class, the class must be so numerous that joinder of all members is impracticable.

Question 49

# civ pro commonality

Answer 49

there are questions of fact and law common to the class

Question 50

# civ pro typicality

Answer 50

claims of representative parties are typical of the claims of the class.

Question 51

# civ pro good cause for physical exam

Answer 51

Although a physical examination may be ordered only for “good cause,” the plaintiff here has placed her physical condition into controversy by claiming personal injury damages, which is sufficient “good cause” for the court to order a physical examination.

Question 52

# civ pro AIC for injunctive relief

Answer 52

In the case of injunctive relief, when it is difficult to assess a dollar amount, the court determines both the value of the plaintiff’s harm if an injunction is not imposed and the defendant’s cost of complying with an injunction. If the amount of either exceeds $75,000, then the amount in controversy requirement is satisfied.

Question 53

# civ pro "Interlocutory appeals"

Answer 53

certain equitable orders are immediately appealable as a matter of right. However, the denial of a venue motion is not immediately appealable.

Question 54

# civ pro privilege in federal question jdx

Answer 54

In federal question cases, privileges are determined under federal common law, pursuant to Rule 501 of the Federal Rules of Evidence.

Question 55

# civ pro removal venue

Answer 55

Under Section 1441(a) of the removal statute, an action may be removed to the federal court in the district where the state action is pending. That removal statute determines venue, regardless of whether venue would have been proper under the venue statute (Section 1391) if plaintiff had originally brought the action in that federal district court.

Question 56

# civ pro relation back for added claims

Answer 56

amendment to a pleading relates back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading.

Question 57

# civ pro civil jury size

Answer 57

Unless the parties stipulate otherwise, a civil jury in federal district court must have at least six members.

Question 58

# civ pro time to voluntarily dismiss action

Answer 58

A plaintiff may dismiss an action without court approval or the agreement of the other parties prior to the service of an answer or summary judgment motion.

Question 59

# civ pro remittitur and additur

Answer 59

Although a federal court is permitted to offer remittitur (a reduction in the damages awarded by the jury) as the means by which the plaintiff can avoid a new trial, a federal court is not permitted to offer additur (an increase in the amount of damages awarded by the jury) as the means by which the defendant can avoid a new trial.

Question 60

# civ pro time to move for new trial

Answer 60

a motion for a new trial must be filed no later than 28 days after the entry of judgment

Question 61

# civ pro appeal of certification decision

Answer 61

An appellate court may, but is not required to, hear an immediate appeal of a certification decision rendered by the district court. A petition for permission to appeal a certification order must be filed within 14 days of the entry of the order.

Question 62

# civ pro Erie when fed/state law conflicts

Answer 62

A federal court sitting in diversity will generally apply state law. However, the court is not required to apply state law if there is a conflict between state and federal law and affirmative countervailing federal interests are at stake that warrant the application of federal law. In this case, there is no clear federal interest at stake. Therefore, the court must apply state law.

Question 63

# civ pro relation back for amended party

Answer 63

A court should freely grant leave to amend a pleading when justice so requires. Under Rule 15, an amendment to a pleading that changes the named defendant relates back to the date of the original pleading if it asserts essentially the same claim or defense, and the new party knew or should have known of the potential action and received notice within 120 days after the filing of the original complaint.

Question 64

# civ pro claim preclusion

Answer 64

The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action.

Question 65

# civ pro effect of a waiver of SOP

Answer 65

Under Rule 4(d)(3), if a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside the United States. This is an incentive to waive service, because the normal time period in which an answer must be served is 21 days after service of process. Rule 12(a)(1)(A). The date on which the plaintiff files the waiver form with the court will be deemed the date of service of process.

Question 66

# civ pro grounds for new trial

Answer 66

i) Error at trial that renders the judgment unfair; ii) Newly discovered evidence that existed at the time of trial was excusably overlooked and would likely have altered the outcome of the trial; iii) Prejudicial misconduct of counsel, a party, the judge, or a juror; iv) A verdict that is against the clear weight of the evidence; v) A verdict that is based on false evidence such that a new trial is necessary to prevent injustice; or vi) A verdict that is excessive or inadequate.

Question 67

# civ pro D's deemed admissions

Answer 67

Although an allegation in the plaintiff’s complaint is generally deemed admitted if that allegation is not denied in the answer, the same is not true if the allegation relates to the amount of damages

Question 68

# civ pro court's obligation to state reasons for ruling on motions

Answer 68

The court is not required to state findings or conclusions when ruling on a motion under Rule 12 (motions against the complaint) or 56 (summary judgment) or, unless the rules provide otherwise, on any other motion.

Question 69

# civ pro materials judge considers on motion to dismiss

Answer 69

In ruling on a motion to dismiss under Rule 12(b)(6), the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice. If a matter outside the pleadings, such as an affidavit, is presented to the court and is not excluded by the court in its review, then the motion must be treated as a motion for summary judgment under Rule 56, and all parties must be given an opportunity to present all material information for the court’s consideration. Rule 12(d).

Question 70

# civ pro TRO requirements

Answer 70

A TRO may issue without notice to the adverse party if (i) the moving party can establish, under written oath, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition; and (ii) the movant’s attorney certifies in writing any efforts made to give notice and the reason why notice should not be required. I

Question 71

# civ pro time to answer after mx dismiss denied

Answer 71

When a defendant files a pre-answer motion under Rule 12, such as a motion to dismiss for lack of personal jurisdiction, the defendant has 14 days after receiving notice of the court’s decision on this motion to file its answer.

Question 72

# civ pro diversity SMJ for rule interpleader

Answer 72

Under the federal interpleader rule, unlike the federal interpleader statute, diversity of citizenship is tested between the stakeholder and the other claimants. There is no requirement under the rule, unlike the statute, that there be diversity between at least two of the claimants.

Question 73

# civ pro claim preclusion: same claim

Answer 73

One aspect of claim preclusion is that when a judgment is in a party’s favor, the entire claim merges with the judgment and is extinguished. Under the transactional approach, a subsequent claim with respect to all or any part of the transaction, or series of connected transactions, out of which the original action arose is barred.

Question 74

# civ pro Proper SOP

Answer 74

service may be made by: (i) personally serving the summons and complaint on the defendant; (ii) leaving the summons and complaint at the defendant’s usual place of abode with a person of suitable age and discretion who resides there; or (iii) delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service. Further, service is proper if made according to the state law of the forum or service state.

Question 75

# civ pro Due process in SOP

Answer 75

Due process is met if the notice is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of an action and afford them an opportunity to present their objections. If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through in-person delivery, registered mail, return receipt requested, or some other means likely to notify the particular individual is required. Notice by publication under such circumstances would not be sufficient.

Question 76

# civ pro venue for resident alien

Answer 76

a lawful, permanent resident alien is deemed for venue purposes to be a resident of the judicial district in which the alien is domiciled. Consequently, the defendant may not be sued in just any judicial district.

Question 77

# civ pro forum non conveniens

Answer 77

Application of the common law doctrine is largely confined to dismissal of actions that would be more appropriately tried in the court of a foreign country. It is not applicable to the transfer of an action from one federal court to another.

Question 78

# civ pro AIC calculation

Answer 78

Although interest and costs are excluded from the amount in controversy, attorney’s fees may be made part of the amount in controversy if the fees are recoverable by contract or statute. Punitive damages, as well, may be permitted to be made part of the amount in controversy.

Question 79

# civ pro federal/state court preclusion effect

Answer 79

If a federal court with diversity jurisdiction over an action issues a judgment, then a state court must give such judgment the same claim-preclusion effect that the courts in the state where the federal court is located would have given the judgment. Although the dismissal of the federal action was on the merits, the preclusive effect of that dismissal is determined by reference to the law of the state where the federal court is located.

Question 80

# civ pro effect of failure to prosecute

Answer 80

If a plaintiff fails to prosecute his case and, in response to a defendant’s motion, the court dismisses the action, the dismissal is with prejudice and operates as an adjudication on the merits.

Question 81

# civ pro "compulsory joinder of a necessary party"

Answer 81

A person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction or destroy venue must be joined as a party if: (i) complete relief cannot be provided to existing parties in the absence of that person; or (ii) disposition in the absence of that person may impair the person’s ability to protect his interest; or (iii) the absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations. A necessary party is therefore a person whose participation in the lawsuit is necessary for a just adjudication.

Question 82

# civ pro "compulsory counterclaim"

Answer 82

A counterclaim is a claim for relief made against an opposing party after an original claim has been made. A pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if the claim arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim and does not require adding another party over whom the court cannot acquire jurisdiction.

Question 83

# civ pro "discovery"

Answer 83

Discovery is generally permitted with regard to any matter relevant to any party’s claim or defense in the action that is not otherwise privileged. This includes the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.

Question 84

# civ pro "privilege"

Answer 84

Privileged information is not discoverable.

Question 85

# civ pro "attorney work product"

Answer 85

In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. If the court orders discovery of trial-preparation materials, the court must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation. Whenever a party withholds information on the basis of a privilege, such as the attorney-work-product privilege, the party must expressly state the claim of privilege and describe the materials or communications not produced in a manner that will enable other parties to assess the applicability of the privilege or protection.

Question 86

# civ pro "mx compel"

Answer 86

If a party fails to respond to discovery that has been properly served, the party seeking the information may move to compel such disclosure or discovery. A motion to compel must be served on all parties and be accompanied by a certificate that the movant has in good faith conferred or attempted to confer with the opposing party in an effort to obtain the disclosure or secure the information or material without court action.

Question 87

# civ pro "amendment"

Answer 87

The court should freely give leave to amend a pleading when justice so requires. Generally, a court will first determine if the proposed amendment to the pleading would be futile because it would immediately be subject to dismissal under Rule 12(b)(6). If it would not, the amendment will generally be permitted unless the amendment would result in undue prejudice to the opposing party.

Question 88

# civ pro scope of discovery

Answer 88

In general, the court is required to limit the frequency or extent of discovery otherwise allowed by the rules if it determines, in its discretion, that the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake, and the importance of the discovery in resolving the issues.

Question 89

# civ pro collateral order doctrine

Answer 89

Under the so-called collateral-order doctrine, a court of appeals has discretion to hear and rule on an issue if it is distinct from the merits of the case, involves a serious and unsettled legal question, and would be effectively unreviewable if the court waited until final judgment to hear the claim or issue. A grant of immunity from prosecution, such as the immunity provided by the Eleventh Amendment, can fall within the narrow confines of the collateral-order doctrine because the benefit of immunity would be lost if the party claiming it were wrongfully forced to proceed to trial.

Question 90

# civ pro deadline to file msj

Answer 90

A party may file a motion for summary judgment at any time until 30 days after the close of all discovery.

Question 91

# civ pro FQ in a state law claim

Answer 91

In order for federal question jurisdiction to exist when the cause of action is based in state law, the court must determine whether the state-law claim necessarily stated a substantial and disputed federal issue that a federal court could adjudicate without disturbing the balance of federal and state judicial responsibilities.

Question 92

# civ pro SOP rules in diversity

Answer 92

With regard to procedure in a diversity action, if a procedural issue is addressed by a valid federal law, then the federal law will be applied, even if a state rule or statute is in conflict. Service of process is considered procedural, rather than substantive. Therefore, the valid Federal Rule of Civil Procedure will trump State B’s law in this case.

Question 93

# civ pro new trial based on juror's response in voir dire

Answer 93

To obtain a new trial, a party must demonstrate that a juror failed to answer honestly a material question on voir dire, and show that a proper response would have provided a valid basis for a challenge for cause.

Question 94

# civ pro mx 12(b)(6)

Answer 94

A complaint should not be dismissed for an mere imperfect statement of the legal theory. However, under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim. In reviewing a motion to dismiss under Rule 12(b)(6), the court must identify and reject legal conclusions unsupported by factual allegations. This includes mere conclusory statements and assertions devoid of facts.

Question 95

# civ pro necessary parties

Answer 95

Tortfeasors facing joint and several liability are not considered necessary parties.

Question 96

# civ pro Erie approach

Answer 96

In determining whether to apply state or federal law, the district court will start by determining whether there is a conflict between state and federal law with respect to the issue before the court. If the applicable state and federal laws do conflict, then the district court must ask whether a valid federal statute or Federal Rule covers the disputed issue. If no federal statute or rule is on point, then the court must determine whether federal common law, rather than state law, should be applied. In making this determination with respect to federal common law, the district court will ask whether the failure to apply state law will lead to different outcomes in state and federal court. If the answer is yes, then the court will apply state law, unless affirmative countervailing federal interests are at stake that warrant application of federal law. The Supreme Court has also recognized the application of federal common law when a “uniquely federal interest” is at stake and a significant conflict exists between that interest and the operation of state law.

Question 97

# civ pro number of peremptory challenges for multiple defendants

Answer 97

Several defendants or several plaintiffs may be considered as a single party for the purpose of making such challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.

Question 98

# civ pro PJ over foreign D- rule 4k2

Answer 98

1. claims based on federal law 2. no state has PJ over D 3. minimum contacts with US

Question 99

# civ pro Power over immigration vs individual rights

Answer 99

in exercising its plenary power over immigration, Congress could lawfully “discriminate” against aliens in ways that would be unconstitutional if applied to citizens (e.g., setting lower quotas for Africans than for Scandinavians, which would otherwise be race discrimination)

Question 100

# civ pro appearing at pre-trial conference

Answer 100

Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement. The court may require that a party or its representative be present or reasonably available by telephone or by more sophisticated electronic means to consider possible settlement. If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action.

Question 101

# civ pro mx relief from judgment

Answer 101

Rule 60(b) allows a court to relieve a party from a final judgment or order for a motion filed within a reasonable time, and no later than one year following the entry of the judgment or order, for newly discovered evidence that could not have been earlier discovered with reasonable diligence.

Question 102

# civ pro Claim preclusion: two promissory notes

Answer 102

One of the requirements imposed on the affirmative defense of claim preclusion is that the causes of action in the two lawsuits must be sufficiently identical. In applying the transactional approach to determine whether the two lawsuits in this case are sufficiently identical, although each promissory note was given by the buyer for the same sale of goods, the buyer gave two notes rather than a single one. Under these facts, the buyer was also aware that the seller intended to sell one of the notes, which would have given a third party the right to sue to enforce that note independent of the seller as holder of the other note. These facts indicate that the parties anticipated that the notes could be enforced independently, and treating the notes as a single transaction would not conform to their expectations. Consequently, the seller’s failure to sue upon both of the notes in a single action does not preclude the seller from suing on each note in separate lawsuits.

Question 103

# civ pro Physical Exam procedure

Answer 103

1. only on a motion 2. for good cause shown 3. notice to person to be examined and all parties, specifying time, place, conditions, scope of exam and identity of examiner.

Question 104

# civ pro Residence for venue purposes

Answer 104

1. district where PJ 2. In a state that contains multiple judicial districts and in which a defendant corporation is subject to personal jurisdiction at the time the action is commenced, the corporation “shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State.”

Question 105

# civ pro General jdx (PJ) over corp

Answer 105

at home= incorporation or PPB

Question 106

# civ pro General jdx over Corp

Answer 106

Where at home, only state of incorporation

Question 107

# civ pro SMj affirmative allegation

Answer 107

must allege that CITIZENS of different states