Civ Pro (Emanuel's)

Question 1

What are the basics of supplemental jurisdiction?

Including: When does it apply and not apply?

Answer 1

Supplemental jurisdiction applies when an additional claim is supported by neither federal question or diversity jurisdiction, so the claim would not have jurisdiction on a standalone basis. The additional claim may still be heard, however, so long as the claim arises from a common nucleus of operative fact.

When does supplemental jurisdiction apply?
1. For compulsory counterclaims
2. Additional parties to a compulsory counterclaim (e.g., D versus P2, even though D and P2 are non-diverse)
3. For impleaded third-party defendants; claims by impleaded TPD’s back against the TPP (but not claims by the original plaintiff against the new third-party defendant)
4. Multiple plaintiffs joined under Rule 20, but only to avoid amount-in-controversy problems! (e.g., P1(A) and P2(B) are joined against D(C) - P1(A) has a claim for $100k, and P2(B)’s claim is only for $50k; this is okay! But it would not be okay if P2 was from state C, breaking complete diversity)

When does supplemental jurisdiciton NOT apply?
* In a case based solely on diversity, when the additional claim is being asserted by a plaintiff against a third-party defendant, when that claim lacks complete diversity or sufficient amount-in-controversy
* Rule 20 joinder of co-plaintiffs and/or co-defendants, when trying to solve for a lack of complete diversity (e.g. P1(A) and P2(B) sue D1(A) and D2(B), not okay as joinder here breaks complete diversity)

Question 2

When is the existence of diversity determined?

Answer 2

The existence of diversity of citizenship is calculated at the moment the claim is filed. Changes of citizenship after the case is filed will neither create nor destroy diversity.

Note:
* However, When the LINEUP or roster of the actual parties change (rather than the citizenship of an existing party changing), through joinder or dismissal, then the usual “time of filing” rule does NOT apply!

Question 3

Rules to remember for amount-in-controversy:

Answer 3

• Must be for MORE than $75,000
• The standard is “legal certainty” – that is, the pleaded amount by the plaintiff is accepted, UNLESS there is a “legal certainty” that the claim cannot result in a recovery of more than $75,000
• Note: This means that even if a judge believes it is HIGHLY UNLIKELY that a jury would actually award $75,000+, or after trial, the jury in fact awards less than $75,000, will NOT trigger a dismissal
• Aggregation
  1. A SINGLE plaintiff can aggregate all their claims against a SINGLE defendant to meet the $75k+ limit (i.e., if no single P has claim(s) of more than $75K against any single D, the plaintiffs may not aggregate their amounts to meet the minimum)

Question 4

Issues Relating to Removal

Answer 4

1. When removed, the case is removed to the federal court for the district court in which the state action is pending (district court “embracing” the state action)
2. Special “Diversity” Rule: If the only basis for federal jurisdiciton is DIVERSITY, then D cannot remove unless NO defendant is a citizen of the sate in which the original state-court action is pending
3. Only a defendant can remove (never ever a plaintiff)
4. Remand: Plaintiff may request remand back to state court if removal is improper, but the plaintiff must request the remand WITHIN 30 DAYS after D files the notice of removal (or the right to remand is waived!) [NOTE: Right to remand for lack of subject-matter jurisdiction is never, ever waived]

Question 5

What are the federally-authroized methods for serving an INDIVIDUAL?

Answer 5

Three Federally-Authorized Methods:
1. Delivering them to the individual personally
2. Leaving them at D’s dwelling or usual place of abode with a person of suitable age and discretion who resides there
3. Delivering them to an agent authorized by appointment or law to receive service of process**

NOTE: Most Importantly:
*Any service method may be used if it’s authorized by **state law (either the state in which the federal action is pending ** or the state in which the service takes place) for use in state-court suits

Question 6

Federally-authorized methods for serving process on a corporation, partnership, or association:

Answer 6

The summons and complaint must be hand-delivered “to an officer [or] a managing or general agent” of D.

Trick:
* This does NOT mean you can leave the papers (summons and copy of complaint) with the personal secretary of a corporate officer — it doesn’t! (unless this is a method allowed by state law, or the secretary is him/herself an “officer [or]
managing or general agent” of the corporation.)
* Service by email never suffices: In a federal suit, service on a corporation done by emailing the papers to anyone at the corporation — even its CEO — never suffices (this rule applies to individuals also!); again, UNLESS email is authorized method under state law
* Similarly, in a federal action personal service made BY a party to the action never suffices.

Question 7

What are the Four Types of Pleadings?

Answer 7

1. A complaint
2. An answer ( (which can be an answer (i) to a complaint; (ii) to a counterclaim designated as such [making the answer a “reply”]; (iii) to a crossclaim; or (iv) to a third-party complaint);
3. A reply, i.e., an answer to a counterclaim
4. A third-party complaint

NOTE (VERY IMPORTANT):
* Narrow use of “reply”: Also, keep in mind that a “reply” (which is in function an “answer to an answer”) will only be needed, or allowed, in two situations:
i. where the reply is in response to a counterclaim designated as such; or
ii. where the court orders a reply to an answer.

Question 8

What is the 100-mile bulge provision?

Answer 8

If the case involves a third-party defendant (brought in by impleader), check to see if SERVICE on the third-party defendant might be facilitated by the “100-mile bulge” provision:
* The TPD may be served personally anywhere within 100 miles of the court where the action is filed, even if the TPD does not have minimum contacts with the state or district in which the case is pending.

Basics: The 100-mile bulge provision creates personal jurisdiction over third-party defendants if the TPD is served within a 100-mile radius of the federal court

Question 9

Basics of Requesting Waiver of Service:

Answer 9

Plaintiff can send (by first-class mail or “other reliable means” like overnight-delivery) a copy of the summons and complaint, together with a request that D sign and return the enclosed “waiver of service” form. If ** D signs and returns the form within 30 days, P can file the signed waiver as a substitute for service.**

(But the method is voluntary on D’s part — if D refuses to sign and return the form, P will have to make regular hand-delivered service, but in that situation P can recover from D the costs of making service, giving D a strong incentive to agree to the waiver request. Additionally, instead of the usual 21 days, the D now gets SIXTY DAYS to file their answer!)

Question 10

Basics of Venue

Answer 10

There are three ways to find venue in a particular federal district court:
1. If ANY defendant RESIDES in the district, and ALL defendants reside in the STATE containing that district;
2. If a SUBSTANTIAL PART OF THE EVENTS OR TRANSACTION giving rise to the claim occured in the district;
3. If at least one defendant can be subjected to personal jurisdiction in the district, and no other district qualifies under either of the above two provisions.

Question 11

Basics of Transfer of Venue:

Answer 11

1. If the federal district where the action is now pending is not the most convenient one, the court **may **transfer the case to any federal district where the case “might have been brought,” if the **convenience of the parties and witnesses **would be better served in the new district. 28 U.S.C. § 1404(a). And a district is one where the case “might have been brought” as long as the district is proper for both venue and personal-jurisdiction purposes.
2. No DISMISSAL Allowed: Assuming that the action is brought in (or removed by the defendant to) a district that is proper for venue and personal-jurisdiction purposes, then the federal judge in that district may not dismiss the action because the
   district would be inconvenient for parties and witnesses — the judge must choose between letting the action continue in her own court, or transferring it to a more convenient federal court where it might have originally been brought.

Question 12

Effect of forum-selection clause on transfer motion:

Answer 12

If the parties to a contract include a forum-selection clause in the contract, the federal courts will:
* Treat that clause as conclusively establishing that the selected forum is the most convenient one.
* Therefore, if one party to a federal action moves to have the action transferred to a federal court for the contractually designated forum, then (assuming that the plaintiff could have originally brought the action in the federal district covering that designated state) the other party will not be allowed to resist the requested transfer on the grounds that the designated forum would be inconvenient or less convenient.

Note: This is not a matter of “federal common law”! (that tricky MBE question) –> it’s a matter of federal statutory law, the law states that transfer is permitted when the new forum would be most convenient, and this has been interpreted as meaning that, when signing a forum-selection clause, the parties are stipulating that the other forum is IN FACT THE MOST CONVENIENT

Question 13

Basics of Erie and what law to apply in federal courts:

Answer 13

1. Follow conflict-of-laws rule of the forum state:
   In diversity cases, if there are multiple states each of which has some relation to the controversy, the federal court must identify which state’s substantive law to apply by following the conflict-of-laws principles of the state in which the federal court hearing the action sits. (e.g., district in Kansas must apply Kansas’ conflict-of-laws rules, even if Nebraska and Missouri are also involved somehow)

2. Statute of Limitations Rules:
Statutes of limitations, like conflict-of-laws rules, are deemed “substantive” for Erie purposes — so the federal court must follow the statute of limitations rule that would be applied by the state where the federal court sits if the action had been filed in that state.

3. Other rules include:

• A state’s “remittitur” and “additur” rules, by which the trial judge is authorized to grant the party disappointed by a jury verdict the benefit of a conditional grant of a new trial on account of an unreasonably small or large verdict.
• A state’s “notice-of-claim” requirements, by which a would-be plaintiff is required to give advance notice to the potential defendant before filing a particular type of suit, are likely to be binding, if there’s evidence that the state legislature enacted the requirement in order to encourage settlements, to make cases harder to bring, or to fulfill some other underlying arguably substantive state policy.
• A** state’s “issue preclusion” rules **

Question 14

When may a pleading be amended?

Answer 14

Amendment OF RIGHT: Under Rule 15, a party (call that party “A,” and the opposing party “B”) may amend his pleading once as a matter of right in either of these two situations:
1. Within 21 days of when A served his original pleading;
2. If A’s pleading was one that required a responsive pleading by B, within 21 days of when B either (i) served that responsive pleading or (ii) made a motion under Rule 12(b), (e), or (f) (with the 21 days starting on whichever of two events mentioned in (i) and (ii) happened earlier)

“Leave of court”: For any amendment after the above “amendment of right” deadlines have passed, P can amend only by getting either: (i) leave of court; or (ii) the opposing party’s consent

Question 15

When will a pleading require particularity?

Answer 15

Allegations of fraud or mistake:
* If the complaint alleges fraud or mistake, the plaintiff must “state with particularity the circumstances constituting [the] fraud or mistake.”

Question 16

Rule 11 Requirements

Answer 16

Signing required: Every pleading and written motion must be signed by an attorney of record (or by the client, if the client is acting pro se).

Representations: By signing a pleading or motion, the attorney certifies that to the best of her knowledge and belief, “after an inquiry reasonable under the circumstances”:
- The document “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation”;
- The “claims, defenses, and other legal contentions” in the document are “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law”;
- The “factual contentions” in the document either “have evidentiary support” or (and this “or” applies only if the particular contention is “specifically so identified” in the document) “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery”
- Any “denials of factual contentions” are “warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

Remember that FRCP 11 establishes (i) what the party submitting a pleading or other document is deemed to represent, and (ii) what sanctions are available for violating the Rule.

Question 17

Rule 11 Sanctions

Answer 17

1. Monetary
   - The sanctions may be monetary (e.g., payment of the wronged party’s attorney’s fees resulting from the violation or payment of a fine to the court) or non-monetary. But any sanction must be “limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.”
2. Against whom?
   - Most often, any sanction will be against the
   lawyer, not the client; But in some instances the client, too, may be sanctioned. For instance, if the court concludes that the client has lied to the
   lawyer about the underlying factual circumstances

Remember:
* The court may award sanctions for violations of Rule 11. (But a party seeking to impose sanctions on the other must, before moving for sanctions, give the other 21 days’ advance written notice of the motion in which the other can withdraw or correct the document and thereby avoid sanctions.)

Question 18

Impleader Basics

Answer 18

1. Derivative Liability
   If D impleads X (with X being the “third party defendant” or “TPD”), to be valid, D’s claim must be “derivative” — it must be the case that X will be liable to D only if D is found liable to P. In other words, D cannot implead by simply claiming, “I’m not actually liable, I wasn’t negligent, X was negligent and caused the harm.”
2. TPD’s defenses vs. main P:
   As a general rule, the TPD may assert any defense to the underlying P-vs.-D claim that D could assert. That way, if D negligently fails to spot or assert an available defense, the TPD may do so, thus preventing D from
   being liable to P and consequently preventing the TPD from having any derivative liability to P.
   * Not “personal” defenses: But the TPD may not assert defenses that are deemed to be “personal” to D. Thus even if D could assert against P the defense of (i) lack of personal jurisdiction; (ii) improper service of process; or (iii) improper venue, the TPD may not assert these defenses “on behalf of” D. (But the TPD may raise her “own” defenses of this type — so, for instance, the TPD may claim that D improperly made service on the TPD, or that the court lacks personal jurisdiction over the TPD because of the TPD’s lack of minimum contacts with the state where the main action is
   pending.)

Question 19

Class Action

Answer 19

Basic Requirement (most tested):
1. “Commonality” - there must be “questions of law or fact common to the class. Each plaintiff’s claim must depend on a “common contention,” such that that common contention can be resolved in one fell swoop on a “class-wide basis.”
* Different harm suffered by each P: Therefore, be on the lookout for any class action where each plaintiff’s claim will be valid or invalid depending in part on the particular type of harm suffered by the plaintiff, or on the particular mental state in which the defendant or its agent had when dealing with the plaintiff — this type of class action probably flunks the “common question of law or fact” requirement. Mass employment discrimination suits against large companies are especially likely to flunk this requirement.

Other Requirements for All Class Action Suits:
- Numerosity
- Typicality
- Adequacy of Representation

Remember:
- Only Type 3 Class Actions (seeking monetary damages) require INDIVIDUAL NOTICE to every class member, and each class member is given the option of opting-out of the class action suit

Question 20

Intervention

Answer 20

Question: Is it “permissive” intervention or intervention “of right”?

1. “Permissive” Intervention:
   A) The would-be intervenor’s claim shares a “common question of law or fact” with the claims of the existing parties (an easy-to-satisfy standard); and B) the stringent requirements for intervention “of right” (discussed immediately below) are not met.
2. Intervention “of right”: The court MUST allow the intervention, with no discretion
   * The circumstances are such that without intervention, a decision in the case may “as a practical matter impair or impede” the would-be intervenor’s “ability to protect [her] interests” in some property or transaction that is the subject of
   the suit; and *
   * The would-be intervenor’s interests in that property or transaction will **not be “adequately represented*” by the existing parties.

REMEMBER:
** If in doubt, choose “permissive”:
It’s hard, probably almost impossible, for the examiners to create a fact pattern suitably brief for the MBE that will satisfy these two requirements for intervention of right. Therefore, unless the fact pattern screams out to you as being one where it would be unusually unfair to the intervenor not to allow the intervention, you should assume that any intervention would be “permissive**.”

Question 21

Discovery and Pretrial Conference

Answer 21

1. Initial Discovery Conference
   Remember that at the beginning of a litigation, the parties must have a pretrial conference “as soon as practicable.” (Rule 26(f))
   * No discovery until after this pretrial conference: No party may serve interrogatories or a notice of deposition on another party until after the pretrial conference has occurred.

2.** Impeachment-only items: Normally, a party is entitled to discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Rule 26(b)(1). But one significant exception is that a party does not normally have to disclose the identity of a potential witness, or produce a document, where the disclosing party’s use of that document or witness would be “solely for impeachment.”**
3. Interrogatories only to parties: Interrogatories (written questions requiring written answers) may only be addressed to parties, not non-parties. (Instead, a combination of depositions and subpoenas duces tecum must be used to get discovery from non-parties.)
Maximum of 25: A party may normally serve on another party no more than 25 interrogatories (and the count includes “all discrete subparts”)

Question 22

Right to a Jury Trial (Civil)

Answer 22

1. In federal civil trials, the SEVENTH AMENDMENT guarantees either party the right to a jury trial on all claims that are “legal” –> this right belongs to BOTH the plaintiff AND the defendant, so either side may demand a jury trial, even if the other side doesn’t want it

Mechanism and Time for Demanding (most tested):
1. Service of demand: The party that wants the jury trial must serve the other party or parties “with a written demand — which may be included in a pleading — no later than 14 days after the last pleading directed to the issue is served.
2. Waiver: : If a party doesn’t meet the above deadline, she is deemed to have waived the jury trial right. And this waiver is “jurisdictional” — the court DOES NOT HAVE THE DISCRETION to excuse a late service or filing.
3. Sequence of trial where case contains both jury and non-jury claims:
* When a case involves BOTH a “legal” claim (damages) AND an equitable claim (injuntive/equitable relieft): Preserving the right to a jury trial means that the LEGAL CLAIM MUST BE TRIED (to a jury) FIRST

Question 23

Selection and Composition of Juries (Civil)

Answer 23

1. Size of Jury
   * A federal civil jury must begin with between 6 and 12 members.
   * Each of the seated jurors must participate in the verdict unless excused by the judge for “good cause.” In other words, in the federal system there are no “alternate” jurors.
2. Unanimity and Minimum Size at Time of Verdict:
   * Unless the parties otherwise stipulate, the verdict must be unanimous.
   * Furthermore, unless the parties stipulate otherwise, the verdict must be returned by a jury of at least six members. (Otherwise the jury is deemed “hung” and there must be a retrial).

BUT REMEMBER:
* The parties are allowed to stipulate otherwise, and agree that there can a verdict delivered by only 4 jurors, or something, and also that the verdict doesn’t need to be unanimous!
* Example: After at least 6 jurors are properly impaneled and sworn in (remember - the case must BEGIN with 6-12 jurors still; the stipulation rule is just that parties can stipulate to allow the verdict to be returned by fewer than 6, or to be non-unanimous), two jurors get sick and are excused for good cause by the judge; the parties can stipulate and say that they are okay with a verdict delivered by only four jurors, and/or that the verdict need not be unanimous as well

Question 24

Types of Challenges to Prospective Jurors

Answer 24

Type 1: “For Cause” (unlimited)
* Impartial -> “for cause” issues most often arise based on a party’s belief that the prospective juror cannot be relied upon to be impartial
* Financial Interest: If a prospective juror has a financial interest in one of the parties to the litigation, that interest will almost certainly cause the court to excuse the juror for cause, even though the juror may claim that his financial interest is too
small to make a difference. (Example: prospective juror owns $100 of stock in Apple, judge will definitely grant request to have them dismissed in a suit involving Apple)
Type 2: Peremptory Challenges **(Three Total)
* Each party in a federal trial is given three “peremptory challenges,” i.e., the right to dismiss three jurors without giving a reason.
* In a case involving multiple plaintiffs or multiple defendants, the judge has discretion to treat all those on a given side as a single party (but may instead grant each of the multiple parties on a side her own set of three challenges)
Not for race or gender reasons: The most-often tested issue regarding peremptory challenges is that as a constitutional matter, a civil litigant may not exercise her peremptory challenges for the purpose of excluding jurors on account of their race or gender.

Mechanics: You might see a question involving the mechanics by which one party contends that the other is violating the “no race- or gender-based peremptory challenges” principle. The following Example shows how these mechanics work. The Example assumes that it’s P, a woman, who is claiming that D, a man charged with gender discrimination in employment, is using his peremptory challenges to eliminate women from the jury.
Example: (1) After D has used peremptory challenges on at least two women (enough to arguably constitute a “pattern” of gender-based strikes), P can object to this pattern. (2) It’s then up to D to state a “facially neutral” reason for the strikes (i.e., a reason based on something other than the fact that the jurors are women; a facially neutral, though weak, explanation might be, “It wasn’t because Juror X was a woman that I challenged her; it’s that I didn’t like the way she refused to look me in the eye”). (3) The burden then shifts to P to demonstrate that D’s asserted reason is “pretextual,” i.e., not the real reason (and that the real reason is indeed D’s intent to make gender-based strikes). P’s objection will be sustained if and only if P can make this showing of pretext by a preponderance of the evidence.

Question 25

Requests for and Objections to Jury Instructions

Answer 25

**1. Requests for a Particular Instruction** * At the close of evidence (and **before the judge charges the jury**) a party may file a **written request** for the instructions it once the court to give. **And if the party does not propose a particular instruction, the party effectively waives the right to later object** (or appeal) if the courtfails to give the instruction. **2. Objections to Proposed Instruction** * **Court must inform parties**: Before the court instructs the jury (and before the litigants make their final arguments to the jury), the court is ***required*** to inform the parties of (a) the ***instructions*** the court ***proposes to give***; and (b) how the court proposes to handle any ***requests*** for instruction that the parties have already made. * **Right to Object**: After the court informs the parties of the instructions it proposes to give, the court ***must give the parties a chance to object*** (outside of the presence of the jury, and before final arguments or the giving of the instructions). T**hen (and this is the most testable point) a party must object on the record at this opportunity** — if the party doesn’t object, that party ***waives*** the right to complain about (or appeal) the instructions. And that’s true even if the party previously proposed an instruction that the court declined (unless the court “rejected the request in a definitive ruling on the record”). Note: However, even where a party fails to timely preserve an objection to a jury instruction that was requested-and-not-given, or given-but-not-requested, the court may later consider an error in that instruction if the instruction (1) constituted “***plain error***”; and (2) the error “***affect[ed] substantial rights***” of a party. Thus on the facts of the above Example, if the court concluded that its failure to give P’s requested instruction about the particular piece of evidence was “plain error,” i.e., an obvious error (unlikely on these facts), and that this error was serious enough to impair P’s “substantial rights” (also unlikely), the court could consider P’s new-trial motion on this ground after all, despite P’s failure to properly preserve the issue.

Question 26

Voluntary Dismissals

Answer 26

General Rule: P may voluntarily dismiss the action, by filing a notice of dismissal **before D has served either an answer or a motion for summary judgment**. (Note: P may still voluntarily dismiss if all D has entered is a 12(b)6 motion to dismiss for failure to state a claim) **2-dismissal rule: ** The first voluntary dismissal is ***“without prejudice”*** (i.e., P ***can re-file*** or can file a different claim based on the same underlying facts). But under the “***2-dismissal” rule***, a second voluntary dismissal is ***with prejudice*** — so after 2 voluntary dismissals, P can no longer sue on the same claim or one arising out of the same circumstances. **Multiple court systems**: Note that the 2-dismissal rule operates not only where both dismissals were in federal court, but also where the first was in state court and the second one was in federal court. The above example is an illustration of this principle. (But the converse is not true — so suppose Suit 1 is in federal court, and P dismisses; Suit 2 is in state court, and P dismisses; P is not prevented from suing on the same claim in federal court.)

Question 27

Judicial Findings

Answer 27

Generally: If a federal case is tried as a ***“bench trial”*** (i.e., by the judge without a jury), the most important thing to remember is that the judge ***must make separate findings of fact*** (i.e., must express the factual findings separately from the court’s “conclusions of law.”) The judge may state the factual findings and conclusions of law ***orally*** (so they can be captured by the court reporter), or may instead put them in a written opinion or memorandum of law. *Example*: P, an author, brings a federal court diversity action against D, her publisher, for $120,000. The suit alleges that D has failed to make royalty payments in this amount to P, as required by their contract. The case is handled as a bench trial, and both sides submit only documentary evidence. Immediately following the close of the evidence, the judge orally pronounces from the bench, “Judgment shall be entered for the author in the amount of $120,000.” Judgment is so entered. The publisher has appealed. Is the appellate court likely to reverse, and if so, why? The answer is “yes,” because the trial judge failed to obey Rule 52(a) (1)’s directive that following any bench trial, “the court must find the facts specially and state its conclusions of law separately.” The findings and legal conclusions may be “stated on the record” (i.e., announced orally from the bench), or may instead appear in a “memorandum of decision” filed by the court. But the court may not omit to make any findings and legal conclusions at all, as the trial court did here.

Question 28

Claim Preclusion and Issue Preclusion (Basic)

Answer 28

**Same rules for state and federal suits**: Surprisingly often, you’ll see on the MBE a fact pattern in which there are two successive suits involving **two different court systems** (call them Court System A and Court System B), and at least one of the litigants is present in both suits; you’ll need to consider whether the System B court should follow System B’s own claim- or issue-preclusion rules or those of System A. **Follow rule of court that issued the first judgment or fact-finding**: There’s an easy, “one size fits all,” answer to this problem: The second court (the System B court) ***must always follow the claim- or issue-preclusion rules of the first court*** (here, the System A court) ***that issued the prior judgment or finding-of-fact whose effect is in question.*** And that’s true regardless of whether the first court (the System A court) is a state or federal court, and regardless of whether the second court (the System B court) is a state or federal court. And it’s true regardless of whether what’s at issue is the issue-preclusion rules, or the claim-preclusion rules, to be followed.

Question 29

Availability of Interlocutory Review

Answer 29

Remember, as a general rule, in the federal system a party may take an appeal only where there has been a **“final judgment”** in the case. **Exceptions, Where Interlocutory Appeals Are Allowed:** 1. Injunctions: First, an interlocutory appeal is allowed from most orders dealing with injunctions, whether the requested injunctive relief is granted or denied. (Rationale: Injunctions normally involve emergency situations that threaten immediate harm to the person seeking the injunction, so requiring litigants to wait until all non-injunction aspects of the case have been finally resolved risks making any post-final judgment appeal too late to be of any use.) Therefore, under 28 U.S.C. § 1292(a)(1), an immediate appeal is permitted from orders: granting, continuing, or modifying an injunction; refusing to grant an injunction (or dissolving an already-issued injunction); or refusing to dissolve or modify an already-issued injunction. **2. Preliminary and permanent injunctions:** This right of immediate appealability applies both to orders involving ***preliminary*** injunctions (i.e., injunctions that prevent a litigant from taking an action until the conclusion of a trial on the merits) and to those involving permanent injunctions. **Distinguish between TROs and injunctions:** Grants or denials of preliminary injunctions, as noted, are immediately appealable. Grants or denials of ***temporary restraining orders (“TRO”s)***, by contrast, are *not*. But there is one very tricky aspect of the distinction between injunctions and TROs that the examiners like to fool you with: even when a TRO is initially issued, if the judge *extends* it so that it runs ***more than 28 days in total***, the TRO will automatically “become” a preliminary injunction even though the judge doesn’t label it that way.

Question 30

The "Collateral Order" Doctrine

Answer 30

An immediate (interlocutory) appeal is also allowed in situations covered by the so-called “collateral order” doctrine. Requirements: 1. The court has made its ***final decision*** as to a ***particular matter*** on which immediate appeal is sought (even though there has been no final decision or judgment as to the rest of the case); 2. The matter is separate from (i.e., “collateral to”) the merits of the underlying claim; 3. The matter is too important to be denied appellate review entirely; and 4. Deferring appeal until entry of a final judgment in the wholecase would prevent the eventual review from being “***effective***” under the circumstances. Grants and Denials of Immunity: - Most likely, we will see an issue regarding the collateral order doctrine in the context of a defendant asserting a claim of immunity (not just immunity from liability, but immunity from even having to stand TRIAL). If the claim of immunity is denied, that denial order is generally treated as the type of collateral order from which an immediate appeal is allowed -- otherwise, D would have to stand trial, negating a major purpose of immunity! - Most commonly, it'll be a government official asserting a claim of "governmental immunity" and attempting to make an immediate appeal when the court rules that the immunity doesn't apply (e.g., police officer sued, claims qualified immunity, where he wouldn't have stand trial, and the judge denies qualified immunity)

Question 31

Final Judment Rule

Answer 31

REMEMBER: Unless the case fits within one of the special “interlocutory appeal allowed” scenarios (i.e., injunctions; or "collateral orders" such as denials of immunity), NO appeal may be taken except from a “final decision” by the district court. This principle is known as the “final judgment rule.” HOW THEY WILL TRY TO TRICK YOU! **1. Denials of Motions** (just because GRANTING the motion would have ended the case, doesn't mean that denying the motion is a final judgment! E.g., you can't appeal when you get denied for your summary judgment motion!) * You are most likely to see the final judgment rule in action on the MBE in connection with the judge’s ***denial of a motion*** that, if granted, would have ended the litigation. Thus denial of a Rule 12(b)(6) motion to dismiss for failure to state a claim, or of a motion for summary judgment, may not be appealed until after the case has been tried or there has otherwise been a final judgment. **2. Multi-claim or multi-party scenarios:** Usually it will be obvious from the fact pattern that the order or decision is or isn’t final. But there is one special situation that can be confusing: that’s the situation in which the case involves ***multiple parties and/or multiple claims***, and fewer than all of the claim/party combinations have been finally determined. Appealability in this type of situation is governed by FRCP 54(b), which provides more-or-less as follows: * **“Default rule”:** The “default rule” is that any order or decision by the court that adjudicates fewer than all of the claims by and against all of the parties is **not deemed final.** So if the judge disposes of fewer than all the claims as to fewer than all the parties, and makes no special determination about appealability, no part of the case may be appealed yet. * **Judge’s power to specify otherwise:** However, Rule 54(b) gives the trial court discretion to ***“direct entry of a final judgment”*** on ***fewer than all ***of the claims and/or parties in the case, so long as the court ***“expressly determines that there is no reason for delay.”*** If the court goes through this two-step process, then that partial judgment (i.e., the final judgment as to that particular combination of claims and/or parties) is ***immediately appealable ***even though the rest of the case remains pending before the trial court.

Question 32

Scope of Review on Appeal

Answer 32

**1. The “de novo” standard for pure questions of law:** If the issue is an issue of ***law*** (including an issue of how to apply the law to particular facts), the appellate court will conduct a ***“de novo review.”*** That is, the appeals court will analyze the issue from scratch, **without giving any deference to the trial court’s analysis.** **2. The “clearly erroneous” standard for judicial findings of fact:** If the case is tried by a judge **sitting without a jury,** recall that FRCP 52(a) requires the judge to “find the facts specially.” Then, Rule 52(a)(6) sets the standard that the appeals court is to use when reviewing these findings of fact: “Findings of fact, whether based on oral or other evidence [e.g., documentary evidence], must not be **set aside unless clearly erroneous,** and the reviewing court must give due regard to the trial court’s **opportunity to judge the witnesses’ credibility.”** **3. The “abuse of discretion” standard for decisions entrusted to the trial court’s discretion:** Certain decisions are committed to the trial court’s **“discretion.”** The appeals court will not reverse such discretionary decisions unless the court believes that the trial court has **“abused”** its discretion. Of the three standards of review that we’re examining here, this “abuse of discretion” is **the least favorable to the appellant**, and the one that gives the greatest deference to the trial court. Only if the reviewing court believes that the decision was essentially ***irrational*** will the court find an abuse of discretion. The abuse-of-discretion standard is generally used, for instance, for reviewing the trial court’s decisions on whether to ***admit evidence***, in those situations in which the relevant rule of evidence puts the admissibility issue within the trial court’s discretion. **4. The “harmless error” doctrine: **There’s one more legal concept governing appeals you should be aware of; it’s not a “standard of review,” but rather a means of assessing the seriousness of any error(s) found by the appeals court. That concept is the “**harmless error doctrine.”** Under this doctrine, even if the appellate court decides that a particular trial court ruling or set of rulings was incorrect, that court will not reverse (i.e., order a new trial or a judgment for the appellant) if the court believes that the error was **unlikely to have changed the outcome of the trial.**

Question 33

Summary Judgment Motion

Answer 33

Remember: Must be BEFORE trial has begun (and in most cases, after discovery is completed) 1. "No genuine dispute" * 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.” These two aspects, taken together, essentially mean that the movant has to demonstrate that one of two Scenarios applies: *Scenario 1:* that both sides ***agree as to all material facts***, and given those undisputed facts, as a matter of law (after giving the non-movant all reasonable inferences) no jury could properly find for the non-movant; or *Scenario 2:* That although the parties disagree about the existence of at least one material fact, the non-movant has not been able to show that she possesses ***admissible evidence*** sufficient to allow the jury to properly find for her as to that fact, so that no jury could as a matter of law properly render a verdict for her. **PLEADINGS DO NOT COUNT:** * The non-movant’s ***pleadings***, by themselves, are ***not admissible evidence***, and thus not enough to establish the existence of a genuine issue of fact. For the non-movant to avoid summary judgment, as noted above she will normally have to point to the likely existence of ***admissible evidence*** (e.g., affidavits reciting expected trial testimony, or deposition testimony, or documents produced during discovery) that, if believed, would be enough to create a genuine issue. **Types of materials available to establish genuine dispute:** In an summary judgment fact pattern, the question will often turn on ***whether the non-movant has shown*** that as to a material fact that the movant claims is not subject to a genuine dispute, there is in fact a genuine dispute. In evaluating whether the non-movant has shown enough to establish a genuine dispute as to this fact, make sure that: [1] The non-movant has cited to ***“particular parts of materials in the record” that establish a genuine disputeon the factual issue.*** (The Rules list the types of eligible materials, a list that includes “depositions, documents . . . affidavits, admissions [or] interrogatory answers”; Rule 56(c)(1)(A)); [2] The facts and materials cited by the non-movant as to [1] can be proved by **admissible evidence** (Rule 56(c)(2)); and [3] If the materials cited by the non-movant consist of an ***affidavit***, the affidavit is made on ***“personal knowledge” ***of the affiant. (Rule 56(c)(4).). **More time to get discovery:** * Keep in mind that although the non-movant will typically need to point to affirmative record evidence to establish a genuine dispute, the non-movant is free to tell the court that he ***needs more time*** to obtain the additional evidence. If the non-movant puts forth “specified reasons,” in an “affidavit or declaration,” that show why he needs more time to conduct discovery, the court may defer deciding the summary judgment motion until the non-movant has had the benefit of the needed time. (Rule 56(d)(2).) **Lack of opposing papers not fatal:** * The fact that the non-movant has not submitted papers in opposition to the summary judgment motion does not itself necessarily entitle the movant to summary judgment. As long as there is anything in the record — including statements in the movant’s own papers — that establishes the existence of a genuine issue of material fact, the court should deny summary judgment. In other words, there is no such thing as “summary judgment ***by default.”***

Question 34

Motion for Judgment as a Matter of Law (JMOL)

Answer 34

Timing: **After one side has fully presented their case at trial**, the other side may move for “Judgment as a Matter of Law” (“JMOL”). (Remember, comes at least halfway through the trial, because at least one side must have had time to fully present their case!) * The JMOL motion may be made ***only “before the case is submitted to the jury* ** In the more-common situation where it’s the *defendant* who is the movant, the motion can be made either (i) after P’s case but before D has put on his case or (ii) after both parties have put on their case. But either way, **once the judge submits the case to the jury, no *initial* JMOL motion may then be made.** **Standard:** The court should grant the movant’s motion if and only if **“the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the [nonmoving] party on that issue.”** Rule 50(a)(1) **How is it Granted?** The court grants the motion for JMOL by taking TWO STEPS: 1. Resolving the ***"issue"*** against the non-moving party; 2. Granting the judgment as a matter of law against the non-moving party as to ***any claim or defense*** "that, under the controlling law, **can be maintained or defeated only with a favorable finding on that issue."**

Question 35

Renewed Motion for Judgment as a Matter of Law ("JNOV")

Answer 35

**1. After “provisional denial”: ** Assume that before the case goes to the jury, one side moves for JMOL, and the judge denies the motion. Under Rule 50(b), the judge “is considered to have submitted the action to the jury ***subject to the court’s later deciding the legal questions*** raised by the motion.” (In other words, the denial is treated as non-final, and subject to being reversed if the jury finds against the movant.) **2. “Renewed motion” post-verdict: **After the judge denies the JML motion, she submits the case to the jury. If the jury finds in favor of the movant, then the motion becomes moot. But if the jury finds *against* the movant, the movant may, if he acts ***within 28 days after the jury is discharged, file a “renewed motion” for JMOL***. The court may then do any of several things: (i) grant the motion (i.e., belatedly reverse the denial of the JMOL, and issue judgment for the movant despite the verdict in favor of the non-movant); (ii) order a new trial; or (iii) enter judgment on the jury’s verdict. **Biggest trap to avoid: ** The biggest trap — and the one most likely to be tested — turns on the requirement that **the JMOL motion must have initially been made before the case was submitted to the jury.** If the movant misses that chance, he does not get another chance to move for JML after the jury finds against him.

Question 36

Motion for Relief from Judgment

Answer 36

Most Tested Grounds for Relief: 1. **Mistake** 2. **Fraud** 3. "Excusable ***neglect***" 4. ***Newly-discovered evidence*** (but only if the evidence could not, even with reasonable diligence, have been discovered in time for the losing party to move for a new trial, a motion that under Rule 59(b) must be made no later than 28 days after the entry of judgment) 5. The fat that the judgment is ***void*** (e.g., made without the court's having ***personal jurisdiction*** over the loser) 6. "Any other reason that justifies relief" **Time Limits:** The motion must be made **“within a reasonable time.”** And for items (1), (2), and (3) in the list above (mistake, excusable neglect, and newly-discovered evidence) there is an a***bsolute deadline of one year*** after the judgment or order was entered. **Judgment entered without personal jurisdiction:** The relief-from-judgment scenario you’re most likely to encounter is one in which the judgment was entered against D by default, and D is able to establish that the rendering court ***never had personal jurisdiction over him.*** Not only is D entitled to have the judgment set aside under Rule 60 as “void,” ***but the one-year-after-judgment time limit does not apply to this “void judgment” scenario*** (though D must still make the motion “within a reasonable time” after becoming aware of the relevant facts).

Question 37

Motion for a New Trial

Answer 37

**Grounds:** (RARELY TESTED!!) If the trial was to a jury, the judge may grant a new trial for “any reason for which a new trial has heretofore [i.e., before the 1938 adoption of the FRCP] been granted following federal jury trials. If trial was to the judge, the judge may grant a new trial for any reason for which a new trial would have been granted in a federal “suit in equity” prior to the 1938 adoption of the FRCP. MBE questions rarely seem to test the reasons that do or do not qualify for new trial under the these two standards. Time limits: What you are likely to see tested is the time limits for making a motion for new trial. The motion must be filed **“no later than 28 days after the entry of judgment."**

Question 38

Default Judgment

Answer 38

**Entry by Clerk**: If (and only if) P’s claim is **“for a sum certain** or a sum that can be made certain by computation,” the ***clerk*** may enter the default judgment based on an **affidavit** by P showing the amount due. **Entry by Judge**: But if the plaintiff’s claim is **not** for “a sum certain” (and also not for a sum that can be made certain by computation), then **only the judge**, not the clerk, may enter a default judgment on the claim. Rule 55(b)(2). If the judge feels that an ***evidentiary hearing*** is needed to compute the amount (e.g., it’s a situation in which the proper amount is not apparent from the complaint), the judge is authorized to hold such a hearing. **When advance notice to D is required:** If the party against whom the default judgment is sought (we’ll call her D) ***appeared in the action*** either personally or by a representative (e.g., a lawyer), then D is entitled to ***7 days advance written*** notice of the above-described proceeding involving the judge. Note: "appearing in the action" includes filing a timely motion early in the case to dismiss for lack of personal jurisdiciton over him, that gets denied, and thereafter he just never appears or responds ever again --> he appeared in the action!! so if there's a default judgment and an evidentiary hearing to determine the sum, judge must give him 7 days advance written notice