Civ Pro II Final Exam

Question 1

What are pleadings?

Answer 1

filings submitted by the parties to present their case, principally their claims/defenses, to the court. 
Rule 7(a): Pleading Generally Allowed: Defines pleadings to include the complaint, the answer, and some other initial papers in a lawsuit.

Question 2

Complaint definition

Answer 2

series of factual & legal allegations related to a claim to give the Defendant notice & tell the court – need to specifically set out fact that formed the dispute:
• Sufficient factual allegations
• Cognizable Legal Theory: based on the factual allegations, would entitle the Plaintiff to a legal remedy

Question 3

Options for responding to a claim

Answer 3

Pre-answer motion OR Answer to complaint

Question 4

Notice pleadings burden

Answer 4

Plaintiff has the burden of pleading in their complaint.
-Whoever bears the Burden of pleading bears the burden of producing evidence of that claim or that defense. If you can provide enough evidence to move forward to trial, you have burden of persuasion

Question 5

Notice pleadings definition and requirements

Answer 5

Requires a short plain statement of the claim showing that the pleader is entitled to relief – this is the standard in determining the sufficiency of a complaint.

1. 8(a)(1): Short/plain statement of the court’s jurisdiction
2. 8(a)(2): Short/plain statement of the claim showing the pleader is entitled to relief
3. 8(a)(3): A demand for judgment for relief sought (prayer for relief)

Question 6

Twiqbal Standard

Answer 6

Requires pleading with enough facts to state a claim for relief that is plausible on the face of the complaint.

Question 7

Twiqbal two part test

Answer 7

o 1- Disregard conclusory allegations

o 2- Determine whether remaining factual allegations plausibly support P’s entitlement to a remedy

Question 8

In alleging fraud or mistake…

Answer 8

…a party must state with PARTICULARITY the circumstances constituting fraud or mistake.

–Malice, intent, knowledge, and
other conditions of a person’s mind may be alleged generally.

Question 9

In pleading conditions precedent…

Answer 9

…it suffices to allege GENERALLY that all conditions precedent have occurred or been performed. But when DENYING that a condition precedent has occurred or been performed, a party must do so with PARTICULARITY.

Question 10

When claiming special damages…

Answer 10

..need to plead with particularity

Question 11

Pre Answer Motions general definition

Answer 11

• Before filing the answer, the party may make one or more pre-answer motions challenging specific issues.
• If D makes no motion or if the motion is denied, then D must file an answer.

Question 12

Lack of SMJ

Answer 12

Can be raised at ANY time either by the court or by the defendant.
-if granted, P can refile in state ct (dismissed w/out prejudice)

Question 13

Lack of PJ

Answer 13

Must raise in first filing or waive.

-if granted, P can refile in same state (dismissed w/out prejudice)

Question 14

Improper venue

Answer 14

raise or waive

Question 15

insufficient process

Answer 15

raise or waive

Question 16

insufficient service of process

Answer 16

raise or waive

Question 17

(12(b)(6) failure to state a claim upon which relief can be granted

Answer 17

Not waivable
Rule 12(h)(2):
-can raise later in pleadings listed in Rule 7(a),
-in a motion for judgment on the pleadings under Rule 12(c)
-or at trial (assumes all facts are true)

-if granted, operates as judgment on merits disposing of claim. Can’t refile

Question 18

In granting a motion to dismiss for failure to state a claim:

Answer 18

a court is deciding that even if every factual allegation in the plaintiff’s complaint is true, the plaintiff is still not entitled to relief. Ashcroft v. Iqbal

Question 19

Failure to join a party under rule 19

Answer 19

Not waivable

• can raise later in pleadings listed in Rule 7(a),
• in a motion for judgment on the pleadings under Rule 12(c)
• or at trial (assumes all facts are true)

Question 20

Must all defenses be filed in pre answer?

Answer 20

• No, but IF D makes such motion, he MUST include all the motions he plans on filing or waive them.
• D may file these defenses with his answer if he doesn’t file a pre-motion, BUT D will have to respond to the substantive allegations of the complaint under 8(b) & assert affirmative defenses under 8(c) and assert counter-claim under 13.
• IF D moves to dismiss, he may temporarily avoid answering.

Question 21

After pre answer is filed and denied, when must an answer be due?

Answer 21

In 14 days

Question 22

12(f) Motion to Strike

Answer 22

-forces removal of irrelevant and prejudicial allegations in a pleading

Question 23

Two ways to strike

Answer 23

a. Substantively: Strike allegations that are substantively unwarranted.
b. When allegations are unduly prejudicial: strike allegations that are redundant, immaterial, impertinent, or scandalous.

Question 24

Post answer motion 12(c): Motion for judgment on the pleadings

Answer 24

• Any time after pleadings are closed, but early enough not to delay trial, a party may move for judgment on the pleadings
May be made:
-on the basis that no answer has been filed,
-or that the pleadings disclose that there are (1) no material issues of fact to be resolved and (2) that party is entitled to judgment as a matter of law.

Question 25

Answers generally

Answer 25

–If pre answer motion to dismiss is filed and fails, D must file Answer to answer to substantive allegations in complaint
–Answers can either be constituting denials or affirmative defenses.
• Time limits: D has 21 days to serve an answer after being served with the complaint, unless filing a pre-answer motion, which alters the time limits.

Question 26

Denials- Rule 8

Answer 26

• Rule 8(b) requires Δ to deny only allegations Δ actually disputes
• Rule 8(b)(3) - general denials (I deny every allegation)
• Rule 8(b)(4) - can deny part of an allegation (but you admit the rest)
• Rule 8(b)(5) - “I don’t know” = treated as denial
• Rule 8(b)(6) - any allegation not denied is deemed admitted

Question 27

NONEXHAUSTIVE list of affirmative defenses in Rule 8(c)

Answer 27

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defenses:
- Defenses are not limited to the list (non exhaustive)

Question 28

Rule 15 Amended pleadings: Amendments before trial as a matter of course

Answer 28

(1) A party may amend its pleading once as a matter of course within:
o 21 days after serving the (original) pleading OR
o • If the pleading is one to which responsive pleading is required, then
21d after service of
• a responsive pleading or
• a 12(b), (e), or (f) motion,
whichever is earlier

Question 29

Rule 15 Amended pleadings: Other Amendments before trial

Answer 29

(2) Other amendments are allowed “only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.”
o Reasons to deny amendment
 undue delay
 bad faith or dilatory(delay) motive (by movant)
 repeated failure to cure deficiencies (given leave already)
 futility of the amendment (wouldn’t make difference)
 prejudice to opposing party
• Prejudice must be shown.
● burden on party opposing amendment to show prejudice
● court determines prejudice on particular facts of the case

Question 30

Time to respond to amended pleading

Answer 30

Rule 15(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made

• within the time remaining to respond to the original pleading or
• within 14 days after service of the amended pleading, whichever is later.

Question 31

Amending pleadings during and after trial

Answer 31

• (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits.
• (2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings

Question 32

15(c) Relation back of amendments test

Answer 32

(1) An amendment to a pleading relates back to the date of the original pleading when:
o (B) the amendment asserts a claim or defense that arose out of the same conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or
 logical relation Test to argue whether claims are related: Are these claims logically related? DO SAME + DIFFERENT ANALYSES on one hand these are the same, on the other hand these are different

Question 33

Relation back issue spot

Answer 33

original complaint was filed within SoL but amended complaint is barred because SoL has expired.

Question 34

Relation back arguments

Answer 34

• Non-movant will argue that adding the claim to the complaint is barred by SoL. Furthermore, the original complaint should have a narrow scope & the amendment is a separate claim.
• Movant will argue that the new claim relates back to the original complaint. Reasoning that non-movant had sufficient notice in the original complaint. Furthermore, amendment is related back to the STO of the original complaint and has a broad scope that includes this new addition: Same events, not separate.

Question 35

Joinder of claims

Answer 35

Rule 18(a): A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.

Question 36

Consolidation and separate trials

Answer 36

. If actions before the court involve a common question of law or fact, the court may:
o (1) join for hearing or trial any or all matters at issue in the actions;
o (2) consolidate the actions; or
o (3) issue any other orders to avoid unnecessary cost or delay.

Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues,

Question 37

Consolidation

Answer 37

. If actions before the court involve a common question of law or fact, the court may:
o (1) join for hearing or trial any or all matters at issue in the actions;
o (2) consolidate the actions; or
o (3) issue any other orders to avoid unnecessary cost or delay.

Question 38

Separate trials

Answer 38

For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues,

Question 39

Compulsory counterclaims

Answer 39

A pleading must state as a counterclaim any claim that—at the time of its service—the pleader has against an opposing party if the claim:
I1-(A) arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim; and
I2-(B) does not require adding another party over whom the court cannot acquire jurisdiction. (No PJ)
I3-Had the claim at the time of service?

Question 40

Compulsory counterclaims: (1) same transaction or occurrence test

Answer 40

LOGICAL RELATION TEST: Is there any logical relation between the claim and the counterclaim? (Plant v. Blazer)
 This is a LOOSE standard which permits a BROAD interpretation. The hallmark of this approach is its FLEXIBILITY.
USE SAME DIFFERENT ANALYSIS

Question 41

Compulsory counterclaim JDX

Answer 41

There will always be 1367 supplemental jdx over compulsory counterclaims because they arise out of the same transaction pro occurrence as the opposing party’s original claim with original JDX

Question 42

Permissive counterclaim generally

Answer 42

A pleading may state as a counterclaim . . . any claim that is not compulsory.

Question 43

Permissive counterclaim JDX

Answer 43

JDX requirement: permissive counterclaims do not arise under the same transaction or
occurrence, so the court will need to have an independent jurisdictional basis for any
permissive counterclaims under 1331 or 1332.
• A federal court has jurisdiction over a permissive state law counterclaim if the claim is so related to a federal claim that it forms part of the same case or controversy.
• Is same body of evidence required to prove claims? Y= goes to supp. Jdx

Question 44

Third party claims: Cross claims

Answer 44

A pleading may state as a crossclaim any claim by one party against a coparty if:
• the claim arises out of the same transaction or occurrence that is the
subject matter of the original action or of a counterclaim, or
• the claim relates to any property that is the subject matter of the original action.

Question 45

Third party practice: Impleader

Answer 45

• Two elements: Derivative liability AND right of recovery under the substantive law (indemnity)
• Derivative liability from same claim = always supplemental JDX if not 1331 or 1332
• Rule 14(a): If there is another party liable to the defendant for defendants’ liability to plaintiff, then the defendant can bring in that party as a 3rd party defendant.
• Rule 14(b): Where a plaintiff can bring a 3rd party. Occurs when another defendant is liable. Just need a substantive basis (indemnity or contribution)

Question 46

Permissive joinder of parties: Plaintiffs

Answer 46

Persons may join in one action as plaintiffs if:(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
transaction or occurrence. (mosley)
(B) any question of law or fact common to all plaintiffs will arise in the action.
• Finding commonality has received a permissive application so that common questions have been found to exist in a wide range of contexts. (mosley)

Question 47

Permissive joinder of defendants

Answer 47

Persons—as well as a vessel, cargo, or other property subject to admiralty process in rem—may be joined in one action as defendants if:
 (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
 (B) any question of law or fact common to all defendants will arise in the action.

Question 48

Is misjoinder a ground for dismissal?

Answer 48

NO. Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.

Question 49

Compulsory joinder trigger

Answer 49

defendant makes a 12(b)(7) motion to dismiss for failure to join a party under Rule 19

Question 50

Required joinder of parties (rule 19) steps

Answer 50

1. Is the absent party a necessary party? (19(a)(1))
   a. There is some connection of property ownership, contract rights, or obligations between those who are initially made parties and those who have not been joined
   b. What is the importance of the absent party to the claim that is being litigated in the case?
   c. Without the absent party, complete relief cannot be accorded to the parties =necessary party
2. If yes necessary, is joinder of the absent party feasible?
3. If yes feasible, is the absent party an indispensable party? (19(b))

Question 51

Factors to determine an indispensable party under compulsory joinder

Answer 51

c. Factors to determine an indispensable party:
i. whether a judgment rendered in person’s absence would be prejudicial to him;
ii. the extent to which the prejudice can be avoided;
iii. whether a judgment rendered in the person’s absence would be adequate
iv. whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder

Question 52

Are joint tortfeasors necessary parties?

Answer 52

NO. Joint tortfeasors are not required parties. (Temple v. Synthes Corp)

Question 53

Intervention of right must:

Answer 53

1. be timely–the intervenor may not lie in wait until the litigation is on the brink of resolution.
2. The intervenor must have an interest in the property or transaction at issue
3. Movant must be so situated that disposing of the action without movant may impair or impede movant’s ability to protect that interest
4. Exception: an applicant meeting all these criteria will be denied intervention if those already in the lawsuit are adequately representing the interest

Question 54

Permissive intervention

Answer 54

In General. On timely motion, the court may permit anyone to intervene who:
 (A) is given a conditional right to intervene by a federal statute; or
 (B) has a claim or defense that shares with the main action a common question of law or fact.

Question 55

Martin v. Wilks rules for intervention/joinder

Answer 55

o A judgment or decree is only binding on the parties to a lawsuit and has no impact on the rights of a non-party who was not joined, even if the non-party had an opportunity to intervene.

Question 56

Default judgment

Answer 56

• A default judgment allows plaintiff to recover money or injunction requested.
• A default judgment is available if (1) ∆ made no response at all; (2) the claim is for a sum certain (amount of damages is certain); (3) п gets an affidavit of the sum owed; and (4) ∆ is not a minor or incompetent.

Question 57

Involuntary dismissal with prejudice

Answer 57

Trigger:
• The D wins the case in involuntary dismissal
• Think of all rule 12 motions = involuntary
• Situation where P’s conduct is so bad, that court decides to involuntarily dismiss P’s case

Question 58

Voluntary dismissal without prejudice

Answer 58

The plaintiff may dismiss an action without a court order by filing:
 A notice of dismissal before the opposing party serves either an answer or MSJ; or
 A stipulation of dismissal signed by all parties who have appeared
• Counterclaims: if D has counter-claims, those counter-claims move forward even if P has voluntarily dismissed

Question 59

Settlements

Answer 59

• Release claims and future claims.
• Control risk
• Confidentiality provisions

Question 60

Federal arbitration act

Answer 60

o The Federal Arbitration Act requires arbitration agreements to be enforced according to their terms unless an agreement may be invalidated by generally applicable contract defenses.

Question 61

Motion for summary judgment generally

Answer 61

Raised after discovery, but before trial
• Moving party must show that (1) there is “no genuine dispute as to an issue of material fact” and (2) she is entitled to judgment as a matter of law.
• Movant (usually Δ, though could be ∏) wins if Movant shows that the evidence compiled so far means Movant would win at trial as a matter of law, unless the other party:
1 - shows insufficient time to gather evidence
2 - produces its own evidence [per Rule 56(e)] contradicting Movant’s, or
3 - otherwise shows a rational jury could find for it at trial

Question 62

Elements for Motion for SJ

Answer 62

1) No genuine dispute of material fact, and
- The court will consider the following when analyzing GDMF
1. Fruits of discovery and/or
2. Affidavits
2) Moving party is entitled to judgment as a matter of law

Question 63

Celotex rule for Motion for SJ

Answer 63

b. Movant can meet its burden for motion for summary judgment by showing that there is an absence of evidence to support the nonmoving party’s case.
c. Movant DOES NOT have to produce evidence showing there’s no genuine issue of material fact when it is an issue on which the other party bears the burden of proof

Question 64

Bias burden shifting rule for Motion for SJ

Answer 64

a. The initial burden is on the movant to make a prima facie showing as to the absence of evidence to support the non-movant’s case.
- -Once the movant has met its initial burden, the burden shifts to the non-moving party. The non-moving party then must come forward with specific facts showing that there is a genuine issue for trial. Rule 56(e)

Question 65

Tolan v. Cotton Motion for SJ rule

Answer 65

a. Summary judgment may only be granted when the evidence, viewed in the light most favorable to the non-movant, establishes that the movant is entitled to judgment as a matter of law.

Question 66

Motion for SJ Affidavit

Answer 66

Per Rule 56(c), the party asserting that a fact cannot be genuinely disputed (the movant) and the party asserting that a fact is genuinely disputed (the non-moving party) must support the assertion by citing to particular parts of materials in the record (i.e., depositions, documents, electronically stored information, affidavits)
• Additionally, the non-moving party can object to summary judgment under Rule 56(d) by submitting affidavits or declarations stating there was inadequate time for discovery.

Question 67

To successfully oppose a motion for summary judgment,

Answer 67

a nonmovant must show a genuine dispute regarding a material fact that requires a jury’s resolution. A nonmovant must point to specific evidence beyond the pleadings to create a factual dispute.
All the nonmovant need do is submit enough evidence to support a minimally reasonable inference in its favor.

Question 68

Three burdens

Answer 68

Burden of pleading
Burden of production
Burden of persuasion

Question 69

Burden of pleading

Answer 69

a. Who has the burden of the complaint? Parties making claims have the burden of pleading his or her claim
b. If defendant pleads affirmative defense, then has burden of proving such defense. If it doesn’t, then runs risk of waiving

Question 70

Burden of production

Answer 70

a. P has burden of establishing his or her claim in complaint (if don’t, expect D to file 12(b)(6) to have dismissed for failure to state a claim)

Question 71

Burden of persuasion

Answer 71

a. Indicates beyond what level must the trier of fact be convinced
b. In crim law- Beyond reasonable doubt
c. In civil cases - preponderance of evidence

Question 72

Partial summary judgment

Answer 72

Summary judgment for one element of a claim or part of a defense

Question 73

Recusal of judges

Answer 73

Preemptory challenges of judges

For cause recusal

Question 74

Peremptory challenges of judges

Answer 74

 About a third of the states, mostly midwestern and western, permit peremptory challenges of judges. A party wishing to make such a challenge simply files a timely affidavit alleging in conclusory terms that the judge is prejudiced against the party.
 Actual prejudice need not be shown, but each side gets only one such challenge.

Question 75

For cause recusal

Answer 75

 What cause might look like is defined in 28 U.S.C. §455. Two broad categories for disqualifying a judge:
• One contains specific guidelines barring, for example, a judge’s hearing a case “where he has served as lawyer in the matter in controversy” before becoming a judge or “[w]here he has served in governmental employment and. . . . expressed an opinion concerning the merits of the particular case or controversy.”
• It also bars decisions in cases in which a judge or her family has a financial interest. 28 U.S.C. §455(b)

Question 76

Recusal cases

Answer 76

o Caperton v. AT Massey Coal Co
 A judge is biased and should recuse himself when a contributor’s influence on his election is so substantial that it would offer a possible temptation to the average judge to lead him not to be impartial.
o Williams v. Pennsylvania
 Because Justice Castille had a “significant, personal involvement” in the underlying case, due process compelled him to recuse himself.

Question 77

Right to trial by jury

Answer 77

• Under the Seventh Amendment, in suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved.
• a party may demand a jury trial by serving the other 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, and filing the demand in accordance with Rule 5(d).
a. Rule 38
1. (d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.

Question 78

Test for what claims can be heard by jury in state court

Answer 78

• Historical test: To determine whether a party is entitled to a trial by jury under the Seventh Amendment, courts apply the historical test, which looks to whether the
individual’s claim falls within the jurisdiction of the courts of law in 1791.

Question 79

Equity claims can be heard by jury?

Answer 79

a. Equity claims-NO

1. No jury trial in 1791, no jury trial at present day

Question 80

Damages claims can be heard by jury?

Answer 80

b. Damages claims-YES

1. Claims for damages under common law received jury trials

Question 81

If unsure whether claim could be heard by jury in at common law…

Answer 81

c. If unsure, analogize
1. Under the historical test, courts seek to give parties the same right of jury trial as they had in 1791.
2. Q: whether a given claim and remedy lay within the jurisdiction of the common law courts in 1791, and thus receives jury trial

Question 82

Jury selection

Answer 82

• During voir dire, each side gets unlimited strikes for cause (e.g., bias, prejudice, related to party) and 3 peremptory challenges (which must be used in a race- and gender-neutral way because jury selection is state action).

Question 83

For cause jury challenges

Answer 83

1. The district court must grant a challenge for cause if a prospective juror shows actual prejudice or bias.
2. Actual bias can be shown either by
   a. the juror’s own admission of bias or
   b. “by proof of specific facts which show the juror has such a close connection to the facts at trial that bias is presumed.” (getter v. Walmart)
3. Courts have presumed bias in extraordinary situations where a prospective juror has had a direct financial interest in the trial’s outcome. (Getter v. Wal-mart)
4. Unlimited number of for cause challenges

Question 84

Preemptory jury challenges

Answer 84

1. for no reason, parties need not justify in any way
2. Fed: In civil cases in federal court (where the Rules provide that juries consist of 6 to 12 people), parties are entitled to three peremptory challenges. 28 U.S.C. §1870.
3. Systematic striking of jurors based on race or gender without a justification based on nonracial or nongender factors violates the defendant’s and jurors’ rights to equal protection and harms the community at large. Not allowed.

Question 85

Motion for judgment as a matter of law

Answer 85

Post trial motion.
• Granted if the evidence is such that reasonable jury could not find for the opposing party.
• Evidence is viewed in the light most favorable to the non-moving party.
• Timing: MJMOL is brought at the close of all evidence prior to submission to jury After plaintiff has rested but before case submitted to jury
∆ usually has a chance to move twice (at the close of п’s evidence and at the close of all evidence) but п has a chance to move only once (at the close of all evidence).

Question 86

-If a judgment as a matter of law has been entered against a party…

Answer 86

Rule 50(d) of the Federal Rules of Civil Procedure allows that party to file a motion for a new trial no later than 28 days after the entry of judgment.
- A new trial is a way to get the additional evidence into the record. A new trial would also give the plaintiff an opportunity to prove the entire claim and succeed. Even if the motion for a new trial is denied, any evidence properly introduced as part of the motion becomes part of the record that may be considered by a reviewing court on appeal.

Question 87

Renewed motion for judgment as a matter of law

Answer 87

• Not allowed unless the party moved for JMOL at the close of all evidence (i.e., if you didn’t move for JMOL at that time, then you can’t bring a RJMOL).
• Timing: No later than 28 days after entry of judgment

Question 88

New trials

Answer 88

Issue spotter for a new trial: jury awards what appears to be excessive or inadequate damages
• Order granting new trial is not appealable because it is not a final judgment
• Standard for getting a new trial is lower than judgment as a matter of law
Excessive verdict: to address the issue of an excessive verdict the district court may either: (1) order a new trial or (2) offer the plaintiff a choice between a remitted (i.e., reduced) amount of damages and a new trial.

Question 89

Motion for new trial

Answer 89

• Within 28 days after entry of judgment, a party may file a motion for a new trial, or the court can do so on its own
• A new trial may be granted if the court finds that the verdict is against the GREAT weight of the evidence, the damages awarded are excessive, the trial was unfair, or prejudicial error occurred

Question 90

Two circumstances for new trial

Answer 90

1. Flawed procedure
   a. Lawyer made impermissible argument
   b. Judge erred in admitting a piece of evidence, prejudicial
   c. Prejudicial misconduct of party, attorney, 3rd party, or juror
2. Flawed verdicts
   a. Most common: Verdict goes against the great weight of the evidence

Question 91

New trial limited to damages: Remittitur

Answer 91

Partial new trial on question of damages

• Defendant needs to prove:
o Jury awarded excessive amount of evidence ( considered excessive when it “shocks the conscience”)
o Defendant needs to prove what rsbl amount of damages are in accordance with facts at trial
o If court agrees with defendant, court must give plaintiff a choice: accept lower amount of damages OR new trial

Question 92

Claim preclusion/res judicata

Answer 92

o Forbids a party from litigating a claim that was OR could and should have been raised in prior litigation

Question 93

3 requirements for claim preclusion

Answer 93

1) Same claim
2) Same parties
3) After a final judgment on the merits

Question 94

Claim preclusion: Same Claim

Answer 94

Asks whether claims are RELATED
• Federal courts use the same transaction/ occurrence test to see if claims are RELATED: All claims arising from a single ‘transaction’ or series of related transactions—broadly defined to include matters related in time, space, origin, and motivation—must be litigated in a single, initial lawsuit, or be barred from being raised in subsequent litigation.” (City of vandalia)
-Minority test is the same cause of action test, which looks at similarities between causes of action and the evidence needed to support them

Question 95

Claim preclusion: same parties

Answer 95

• Claim preclusion only operates between persons who were parties to both the first and second lawsuit or parties in privity (a person so identified in interest that she represents the same legal right).

Question 96

Rule against non party preclusion under same parties prong

Answer 96

Rule Against Non-Party Preclusion: If you weren’t a party to the lawsuit you can’t be bound or affected by the judgment of that lawsuit, meaning you cannot be precluded from bringing up similar claims

Question 97

6 Exceptions to Rule Against Non-Party Preclusion (when a nonparty CAN be bound)

Answer 97

1 – express agreement to be bound
2 – preexisting substantive legal relationship w/ someone who was a party to the litigation (new property owner is bound by judgment of easement against previous owner)
3 – adequate representation (by someone with the same interests who was a party)
4 – a party assuming control over prior litigation
5 – party who loses individual suit then sues as the representative of a class
6 – special statutes (bankruptcy, probate)

Question 98

Claim preclusion: after a final judgment on the merits

Answer 98

• A final judgment is a final appealable order.
A judgment is on the merits where the claim is resolved at trial or dismissed under any Rule, except lack of jurisdiction, improper venue, or failure to join parties under Rule 19.

Question 99

Claim is Not precluded when

Answer 99

 Claim was not a claim at the time of the first suit.
 If the court rendering the first judgment lacked jdx over the allegedly precluded claim.
 Claims arising from the same episode but belonging to different parties.

Question 100

Issue preclusion/collateral estoppel

Answer 100

o Issue preclusion bars from relitigation only those issues actually litigated and determined in a prior suit
Does NOT require same parties
o May operate to prevent either party from relitigating issue already decided in prior lawsuit

Question 101

Issue preclusion 5 requirements

Answer 101

When
[1] an issue of fact or law is
[2] actually litigated and determined by
[3] a valid and final judgment, and
[4] the determination is essential to the judgment, and
[5] the would-be victim of issue preclusion had an adequate opportunity and incentive to litigate the issue (in the earlier proceeding),
-the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.

Question 102

Offensive issue preclusion

Answer 102

• Plaintiff seeks to prevent Def from (re)litigating (in Suit#2) an issue Def already litigated and lost (in Suit#1)
• Nonmutual: Different plaintiffs, same defendant

Question 103

4 Fairness considerations for when offensive non-mutual issue preclusion might be okay

Answer 103

1 – did ∏ (in SUIT#2) have opportunity to join (intervene) in SUIT#1 ?
2 – did Δ (in SUIT#2) have the incentive to litigate the issue fully and vigorously (in SUIT#1) ? (Most important)
– If no=issue preclusion is not allowed
3 – are there multiple, inconsistent prior judgments ?
4 – are there procedural opportunities available (to Δ) in SUIT#2 that were not available (to Δ) in SUIT#1 ?

Question 104

Defensive issue preclusion

Answer 104

• Def seeks to prevent plaintiff from (re)litigating an issue plaintiff already litigated and lost