Civ Pro - Trial and Post-Trial Matters Flashcards
(4 cards)
To receive a jury trial, a party generally must:
A File a written demand and serve it on all the parties within 28 days after the service of the last pleading directed to the jury-triable issue
B File a written demand and serve it on any opposing parties within 14 days after the service of the last pleading directed to the jury-triable issue
C File a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue
D File a written demand and serve it on any opposing parties within 28 days after the service of the last pleading directed to the jury-triable fact issue
C File a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue
Under Rule 38, to receive a jury trial a party must file a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue. Otherwise, the right to a jury trial generally is deemed waived. Note, however, that the Supreme Court has held that, in the absence of compelling reasons to the contrary, a court should grant relief from the waiver if the issue is normally tried by a jury.
Filing a written demand within 28 days after the service of the last pleading directed to the jury-triable issue may be too late. The applicable period is 14 days.
Filing a written demand on any opposing parties may be insufficient where multiple parties are involved. All parties must be served.
A manufacturer sued a department store for breach of contract, alleging that the department store failed to pay for a shipment of watches delivered by the manufacturer to the department store in July of that year.
At trial, the manufacturer introduced evidence regarding the department store’s failure to pay for the watches. In addition, it introduced evidence that the department store failed to pay for a shipment of necklaces, also delivered that July pursuant to a separate contract. At the close of the manufacturer’s case, the department store introduced evidence showing that both the watches and the jewelry were defective. The jury returned a verdict for the manufacturer, awarding the manufacturer damages for breach of both contracts. The manufacturer then immediately moved to amend its complaint to conform to the evidence introduced at trial.
Should the court allow the amendment?
A Yes, because the department store impliedly consented to the introduction of the evidence.
B Yes, because the parties entered into the contracts at approximately the same time
C No, because the motion should have been made before the verdict was rendered.
D No, because the defendant must have had knowledge of the claim when the complaint was served.
A Yes, because the department store impliedly consented to the introduction of the evidence.
The court should allow the amendment. An issue not raised by the pleadings is treated as if raised in the pleadings if it is tried by the parties’ express or implied consent. In such a case, a party may move-at any time, even after judgment-to amend the pleadings to conform them to the evidence and to raise the unpleaded issue. Here, the department store impliedly consented to the introduction of evidence relating to the jewelry contract. Not only did it fail to object to the evidence, it introduced evidence to show that the jewelry was defective. Thus, the manufacturer was entitled to move to amend its complaint to conform to the evidence introduced at trial. (B) is incorrect because the relevant determination is whether the party impliedly consented to the trial of the issue, not whether the issue was related to an issue raised by the pleadings. (C) is incorrect because a motion to amend a pleading to conform to the evidence introduced at trial may be made at any time, even after judgment. (D) is incorrect because the defendant need not know about the claim when the complaint was served.
A consumer purchased a luxury automobile from a dealer on credit. After the consumer failed to make a number of the required payments, the dealer filed a civil action against the consumer in federal district court to recover the balance due on the account. The dealer properly served process on the consumer. Several months passed, and the consumer did not file any response to the complaint. The dealer then filed a motion asking the clerk of court to make an entry of default, and the clerk did so.
What procedure should the dealer follow to obtain a default judgment against the consumer?
A File a motion to have the clerk of court enter the default judgment, and the clerk may do so without the consumer receiving any further notice of the motion.
B File a motion to have the clerk of court enter the default judgment, and the clerk may do so, provided the consumer receives additional notice of the motion for default judgment.
C File a motion to have the judge enter the default judgment, and the judge may do so without the consumer receiving any further notice of the motion for default judgment.
D File a motion to have the judge enter the default judgment, and the judge may do so, provided the consumer receives additional notice of the motion for default judgment.
A File a motion to have the clerk of court enter the default judgment, and the clerk may do so without the consumer receiving any further notice of the motion.
The dealer should file a motion with the clerk of court. On request of the plaintiff, supported by an affidavit as to the amount due, the clerk may sign and enter judgment for that amount and costs against the defendant if: (i) the plaintiff’s claim against the defaulted defendant is for a sum certain; (ii) the default was entered because the defendant failed to appear; (iii) the defaulted defendant is not an infant or incompetent person; and (iv) the damages amount requested is not greater than the amount requested in the complaint. The dealer’s claim here meets these requirements, so the clerk may enter the default judgment, and no notice is required. (B) is incorrect because no further notice is required under these facts. (C) is incorrect because the clerk may enter the default judgment when the amount is for a sum certain. (D) is incorrect because no further notice is required under these facts and because the clerk may enter the default judgment.
An elderly woman entered into a contract with a company in the business of providing home care services. Believing that she had been duped by representatives of the company, the woman commenced an action in federal court, properly based on diversity, seeking rescission of the contract. The company answered, denying the principal allegations of the woman’s complaint and asserting a counterclaim against the woman for breach of contract. In addition, the company timely served a demand for a jury trial. The woman did not.
Which statement best describes the roles of the judge and jury as finders of fact in the trial of the parties’ claims?
A The judge will first determine the issues relating to the woman’s claim for rescission, and if it concludes the rescission is not warranted, the jury will determine the issues relating to the company’s breach-of-contract counterclaim.
B The jury will first determine the issues relating to the breach of contract claim, and the judge will determine the issues relating to the rescission claim that have not already been resolved by the jury.
C The jury will act as the sole finder of fact.
D The judge may either act as the sole finder of fact on both the claim and the counterclaim, or allow an advisory jury to try the issues relating to the company’s counterclaim.
B The jury will first determine the issues relating to the breach of contract claim, and the judge will determine the issues relating to the rescission claim that have not already been resolved by the jury.
If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury’s finding on fact issues will bind the court in the equitable claim. (A) is incorrect because all fact issues relating to the company’s legal claim must first be determined by the jury. Only then may the judge try the woman’s equitable claim. (C) and (D) are both incorrect because neither the jury nor judge acts as the sole finder of fact when the case has legal claims and equitable claims, and a jury has been demanded on the legal claims.
