Civil Procedure Flashcards
(377 cards)
1
Q
What is subject matter jurisdiction?
A
the power of the court to decide this kind of case
2
Q
What is personal jurisdiction?
A
the power of the court to decide the rights and liabilities of this defendant
3
Q
Federal courts are courts of limited jurisdiction; state courts are generally courts of general jurisdiction meaning anything can be heard that is properly brought before them
A
o
4
Q
The basis for federal SMJ must be affirmatively pleaded and if challenged, it must be proved that there is a basis for SMJ
A
o
5
Q
Lack of SMJ can be raised by any party at any time, even on appeal
A
o
6
Q
When does federal question jurisdiction exist?
A
when the federal law issue is presented in the plaintiff’s complaint. The complaint must include elements of the claim, but it need not include anticipated defenses. A federal defense does not count for federal question jurisdiction, even if it is important.
7
Q
What is the requirement of diversity jurisdiction?
A
The case is between citizens of different states, or citizens of a state and a foreign country AND the amount in controversy exceeds $75,000. The diversity must have existed at the time the complaint was filed or if removed, at the time of removal
8
Q
What are two situations that cannot use diversity jurisdiction, even if the requirements are otherwise met?
A
probate and domestic relations (divorce, alimony, custody, child support) actions cannot be brought in federal court under diversity jurisdiction,
-this is because states have a strong interest in these substantive areas and are more qualified to deal with the constant judicial involvement these types of cases require
9
Q
What does complete diversity mean?
A
all plaintiffs have different citizenship from all defendants
10
Q
What are exceptions to the general rule requiring complete diversity in federal cases?
A
minimal diversity (when any plaintiff is diverse from any defendant) is permitted:
- under the federal interpleader act
- for class actions with more than 100 class members and the claims worth is more than $5 mil [Class Action Fairness Act]
- for interstate mass torts if at least 75 people have died in one accident (e.g., a plane crash)
11
Q
What determines citizenship of a person?
A
the state or country of domicile; a person can only have one legal domicile at a time; a corporation can have multiple citizenships simultaneously
12
Q
What is domicile?
A
residence with an intent to remain indefinitely
13
Q
What is the general rule of citizenship of the representative party and the exceptions?
A
the citizenship of the representative party controls. The exceptions are in litigation involving decedents and minors/incompetent persons, the subject’s citizenship controls
14
Q
Where is the citizenship of a class action located?
A
in a class action, citizenship is based on the named or representative parties
15
Q
Where is a corporation’s citizenship located?
A
1) the place where the corporation is incorporated
2) the place where the corporation has its principal place of business (“the nerve center” where the executive offices are located) NOT WHERE THE COMPANY PRIMARILY CONDUCTS BIZ
16
Q
Where is the citizenship of a partnership or unincorporated association (e.g., trade associations, unions)?
A
citizenship is EVERY STATE in which its members are citizens
17
Q
What is the general rule regarding coming up with the amount in controversy?
A
Any good-faith allegation will suffice. Whether the plaintiff actually recovers $75,000 is not relevant. A case will only be dismissed when it appears to be a legal certainty that the AIC will not be met
18
Q
What is aggregation?
A
adding up smaller claims to exceed $75,000 (AIC)
19
Q
What is the aggregation rule between one plaintiff and one defendant?
A
the plaintiff can add up all claims, regardless of whether they are related
20
Q
What is the aggregation rule between one plaintiff and multiple defendant?
A
the plaintiff may not aggregate claims to get to the AIC. Claims against EACH D must total more than $75,000
21
Q
What is the aggregation rule between multiple plaintiffs and one defendant?
A
the plaintiffs may not aggregate claims against the defendant. Each plaintiff must seek more then $75,000 from the defendant. However, if the multiple Ps are enforcing a single title or right in which they have a common or undivided interest aggregation is ok.
22
Q
If the defendants are jointly liable, they are treated
as one defendant. Thus, if plaintiff sues two defendants on a theory of joint
liability, seeking a total of $75,001, the AIC requirement is satisfied.
A
o
23
Q
What is removal and what is transfer?
A
Removal is moving a case from state to federal court; transfer is moving a case from one federal court to another federal court
24
Q
What is the general rule for removal?
A
removal is proper ONLY if the case could have been brought originally in federal court due to SMJ. Further, all the defendants LISTED IN THE COMPLAINT must agree to remove.
+Only discuss SMJ on an essay question as this is the key concern in removal
25
Only defendants may remove.
If there are multiple defendants seeking removal, then ALL the defendants must consent to removal within 30 days of service. It will be ineffective if not all agree
26
What is the key question in removal?
Ask: If the plaintiff had chosen to sue in federal court in the first place, would the federal court have had subject matter jurisdiction?
27
When is removal based on diversity jurisdiction proper?
1) there is complete diversity
2) AIC is met
3) the action is brought in a state in which no defendant is a citizen
28
Removal must occur within one year of the commencement of the action in state court, unless
the plaintiff acted in bad faith to make the case non-removable.
Ex: If the plaintiffs joins a non-diverse defendant, waits a year, and then dismisses the non-diverse defendant, the other defendants can then seek removal if all of that was a ploy to defeat diversity.
29
What happens when the removal notice is filed?
the state court's jurisdiction ends instantly and automatically
30
What does the plaintiff do if the plaintiff disagrees with the removal because they believe it is improper?
the plaintiff can file in federal court a petition for remand
31
What is supplemental jurisdiction?
a federal court with subject matter over a case can hear additional claims over which the court would not independently have jurisdiction if ALL the claims constitute the same case or controversy
32
What does it mean for claims to constitute the "same case or controversy"?
the claims arise out of the same common nucleus of operative fact. Basically, all the claims arise out of the same transaction or occurrence
33
What does 28 USC S. 1367 do?
it allows, but does not require, the court to apply supplemental jurisdiction
34
Does a counterclaim in a diversity action have to meet the AIC?
if the counterclaim is compulsory, it can get in regardless of the amount.
If the counterclaim is permissive, it cannot get in if it fails to meet the AIC requirement
35
What is a cross-claim?
A claim by a co-party (e.g., a plaintiff against another plaintiff).
36
What is the requirement for a cross-claim?
It must arise out of the transaction or occurrence
37
What happens to other diverse plaintiffs if the claim of one diverse plaintiff against a single defendant satisfies the jurisdictional amount?
The other diverse plaintiffs who have related claims against the defendant can also be heard even if the claims do NOT satisfy the jurisdictional AIC minimum
38
Supplemental jurisdiction in diversity cases does not allow you to join a non-diverse defendant or a non-diverse plaintiff.
Basically, you cannot use supplemental jurisdiction as an end run around the compete diversity requirement
39
What are the questions you must ask yourself when facing a PJ question?
1) Has the basis for exercising PJ over an out-of-state defendant been authorized by statute or by rule of court?
2) Is personal jurisdiction permitted by the due process clause of the US constitution?
40
What is the standard by which a defendant waives any objection to personal jurisdiction?
substantial participation on the merits; this is basically anything beyond just challenging personal jurisdiction
41
What are the three types of personal jurisdiction?
1) in personam
2) in rem
3) quasi
42
What is the constitutional requirement of in personam jurisdiction?
due process requires minimum contacts between the defendant and the forum state
Ask: would it be consistent with traditional notions of fair play and substantial justice to sue the defendant here?
43
How do courts assess whether there are minimum contacts?
assess whether the defendant has purposefully availed himself of the benefits and protections of the state such that it is reasonably foreseeable that his activities in the forum state subject him to being haled into court there
44
What are the ways to attain personal jurisdiction?
[CDP minimum contacts]
- consent (express/implied)
- domicile
- physical presence in state when served
- minimum contacts (provided there is a state long-arm statute)
+PJ can be established through a D's agreement to a forum selection clause
45
Where does general in personam jurisdiction apply to corporations?
a corporation's citizenship is where the corporation is essentially "at home"
- state of incorporation
- principal place of business
46
What are the four types of service the federal rules always allow?
MILD
1) for persons in foreign countries, service can be made by registered Mail with return receipt requested (generally not accepted in the US unless state law allows it)
2) In-hand personal delivery;
3) Leaving the summons at the defendant's dwelling or usual place of abode with a person of suitable age and discretion;
4) Delivery of the summons to an authorized agent
+Service must be done within 90 days after the plaintiff's complaint is filed (except if the D is in a foreign country)
+leaving the summons with a teenager is usually ok
+the summons must be left with a resident, not someone just visiting
+It cannot be left at the person's office
47
Where is federal venue proper?
1) where any defendant resides, but ONLY so long as all defendants reside in the same state; or
2) where the claim substantially arose or the property at issue is located; or
3) if neither of the above, any district where the defendant is subject to personal jurisdiction has venue
48
For venue purposes, where does a business entity reside?
any business entity (with a capacity to sue or be sued) resides in every district in which personal jurisdiction exists if the district were a state
49
For a case begun in state court and removed to federal court, venue is automatically proper in the federal district where the state court sits, even if that federal district would not have been proper originally.
o
50
What is the general rule for transfer from one federal court to another?
transfer can only happen to a district with proper venue.
There is an exception that allows transfer to a district without proper venue when ALL parties agree
51
What happens when a case is filed in a district with proper venue and then it is transferred to another district?
the law of the original forum controls
52
What happens when a case is filed in a district without proper venue and then it is transferred to another district?
the law of the new forum controls
53
What is the general Erie rule?
In a diversity case, a federal court applies state substantive law.
Anything covered by the FRCP is deemed "procedural" for Erie purposes so federal law applies, even if the substance of the claim is governed by state law
54
What are the twin aims of Erie?
to avoid forum shopping; and to avoid the inequitable administration of justice
55
What happens if the choice of the procedure would be outcome determinative (change the result)?
the federal court should usually apply state law to prevent forum shopping
56
The role of the jury in federal court is entirely controlled by federal law
o
57
When do federal courts make federal common law?
ONLY when they encounter important federal interests that are not covered by the statute
58
In determining applicable state law, how do federal courts treat state court decisions when the highest state court has not ruled?
The federal court gives respectful attention to the decisions of lower state courts, but is not bound by their decisions
59
What is a reply?
A pleading by the plaintiff to answer a counterclaim
60
What are requirements of a complaint?
SPICS
- a Short and Plain statement showing the claimant is entitled to relief and the court's subject matter jurisdiction;
- Identification of the parties;
- a Claim for the relief sought by the pleader; AND
- Signature of the plaintiff/attorney
61
What is a motion for judgment on the pleadings?
When the pleadings agree entirely on the facts and only the law is in dispute
62
What is a motion to strike?
A motion to
- delete from a pleading scandalous or prejudicial matters that are NOT relevant to the case at hand
- strike a legally invalid defense
+It cannot be used to strike immaterial claims
+It must be mede before responding to the pleadings or within 21 days after being served with the pleading
63
The failure to respond to an allegation constitutes admission
o
64
What are the prerequisites for a federal class action?
CANTT
- commonality (common questions of law or fact)
- adequacy of representation
- numerosity
- typicality
- type of class
65
What is the home-court advantage rule?
Removal from state to federal court is not allowed when
1) SMJ arises from diversity jurisdiction and
2) a defendant is a citizen of the state where the case was filed
Ex: Diversity case filed in CA (NV vs. CA Def) is removed to CA. This violates this rule
+When a defendant asserts a counterclaim, this does not transform them into a plaintiff for the purposes of this rule
+This does not apply when SMJ relies on FQ
66
When must the defense of personal jurisdiction be raised by the defendant?
- The pre-answer motion or answer, whichever occurs first.
| - an answer amended without the court's permission within 21 days after the original answer was served
67
What must be included in the answer?
1) admissions and denials
2) motions that have not been waived
3) affirmative defenses
4) compulsory counterclaims
68
When does a federal court have SMJ over a class action?
1) when the action arises under the U.S. constitution, a treaty, or federal law; OR
2) when the NAMED opposing parties are diverse and the amount in controversy for ANY named plaintiff's claim exceeds $75,000
69
What must the movant show for summary judgment to be granted?
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law`
70
How does a trial court handle a reviewing a motion for JMOL?
1) view the evidence and draw all reasonable inferences in favor of the nonmovant
2) disregard any evidence favorable to the movant that the jury need not believe, and
3) not consider the credibility of witnesses or the weight of evidence
71
What is the standard of appellate review for a trial court's discretionary rulings (e.g., whether to admit evidence)?
abuse-of-discretion. This means that the appellate court will only reverse the decision if it was clearly arbitrary or unreasonable
72
What are the three things considered in a minimum contacts analysis?
MRF
1) minimum contacts with the forum state to see if the D has purposefully availed himself of the benefits and protections of the state such that it is reasonably foreseeable that his activities in the forum state subject him to being haled into court there
2) relatedness of claim to contact with forum (either specific or general jurisdiction may apply)
3) fairness factors
73
What does it mean to have general jurisdiction?
The defendant is essentially at home in the state due to systematic and continuous contacts
74
What does a federal court do when it is unclear whether the law is substantive or procedural?
two tests
- [primary test] outcome determinative test: an issue is substantive if it substantially affects the outcome
- [for torts] balance of interests test: the federal interest in having the federal law applied is balanced against the state interest in having the state law applied. If the state has a greater interest, the law is substantive
75
Generally notice pleading only requires stating enough facts to support a plausible claim. However there are some claims that must be pled with specificity including:
MS. F
fraud, mistake, special damages
+For mistake or fraud the D's mental state may be alleged generally BUT the complaint must state with particularity the circumstances giving rise to the claim (e.g., specifying the time, place, nature of the alleged fraud)
76
What is permissive joinder?
a party may be joined to an existing case if the claims arise from the same transaction or occurrence AND raise at least one common question of fact or law. There still must be SMJ
+Ex: Two pregnant women sue their employer for discrimination under the same federal statute for the same reason that they were pregnant (same occurrence).
77
When is a party a "necessary party" for purposes of joinder?
CR I MIO
- The court cannot provide Complete Relief without the necessary party; or
- the absent party's Interest will be harmed if he is not joined; or
- the absent party is subject to Multiple Inconsistent Obligations
78
When must a necessary party be joined?
the court has PJ over the party and joinder does not destroy diversity
79
What if a necessary party cannot be joined? What does the court consider?
The court will consider if 1) there is an alternative forum available, 2) assess the likelihood and extent of prejudice to the parties, 3) whether the court can shape relief to avoid the prejudice
The court will either dismiss the case or proceed with the case
80
it is ok for venue to be improper for an impleaded defendant
o
81
What is intervention?
when a nonparty claims an interest in the pending lawsuit and disposition in his absence will impair his rights
82
What is interpleader?
an action where one holding property (the stakeholder) forces all potential claimants into a single lawsuit to avoid multiple and inconsistent litigation
83
What are the requirements of statutory interpleader?
[remember S for soft requirements]
- one claimant must be diverse from one other claimant
- the AIC must $500 or more
84
What are the requirements of RULE 22 interpleader?
[Remember R for rigorous requirements]
- the stakeholder must be diverse from every claimant
- the AIC must exceed $75,000
85
What is the key requirement of a compulsory counterclaim?
the counterclaim must arise from the same transaction or occurrence as the plaintiff's claim
86
When is supplemental jurisdiction available for counterclaims?
compulsory: supplementary jurisdiction is present
permissive: supplementary jurisdiction IS NOT present and therefore there must be an independent basis for SMJ
87
What are the 3 types of class action that a federal class action must fit into?
1) prejudice: class treatment is necessary to avoid inconsistent results
2) injunctive or declaratory relief is sought
3) questions of law/fact common to the class predominate over questions affecting individuals (and a class action is a superior method to resolve the issue)
88
What are the 3 types of mandatory disclosure in discovery, according to FRCP 26, even if the opposing party does not request the information?
PIE like you give this as a gift before litigation
1) pretrial disclosures
2) initial disclosures that supply information about disputed facts
3) expert testimony
89
What is a deposition?
A recorded examination of a witness. Answers are oral.
90
What is an interrogatory?
Written questions directed at another PARTY. The response is within 30 days and must be answered in writing under oath.
91
What are grounds for a new trial?
AMEND
1) judgment is Against the weight of evidence
2) prejudicial Misconduct
3) prejudicial Error (e.g., erroneously admitting evidence)
4) New evidence (that could not have been obtained for the trial through due diligence
5) excessive Damages or inadequate damages
+A party has 28 days from the entry of final judgment to move for a new trial
92
What is the standard of appellate review for a matter of law?
de novo
93
What is the standard of appellate review for a question of fact determined by a judge? Jury?
clearly erroneous for judges; for juries the appellate court will view the facts in the light most favorable to the jury's verdict and ask whether a reasonable jury could have reached the same conclusion
94
What are the requirements of res judicata (claim preclusion)?
[SCM]
1) the Same plaintiff and same defendant were parties (or privies [successor in interest]) in the past and present case
2) the same Claim (cause of action) is asserted in the past and present case
3) there is a valid final judgment on the Merits
95
What are the requirements of collateral estoppel (issue preclusion)?
[SAFE (issue)]
1) [Same party] it is being used against someone who was a party (or in privity with a party) in the past suit
2) the same issue was Actually litigated
3) there is a valid Final judgment on the merits
4) the issue was Essential to judgment
5) Mutuality rule
Traditional: the party asserting it was a party (or a privy)
CA: a "stranger" to the past case can assert it if fair
96
The failure to file proof of service does not affect the validity of the service
o
97
What does the court do when faced with a motion to dismiss for failure to state a claim upon which relief can be granted [12(b)(6)]?
The court considers whether the complaint fails to assert a valid legal theory of recovery or fails to include sufficient facts. Courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff’s favor, and view the pleading in the light most favorable to the plaintiff.
98
What happens when a case is brought under diversity jurisdiction, but one of the parties fails to meet the AIC?
the party that fails to meet the AIC can be included via supplemental jurisdiction, so long as there is a common nucleus of operative fact
99
What is the standard for reviewing a motion for a judgment as a matter of law (directed verdict)?
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.
100
What are the requirements to settle a class action?
1) if the proposed settlement would be binding on all class members, the court holds a hearing to determine if it is fair, reasonable, and adequate
2) notice must be given to all class members to permit opting out
3) approval of the court
101
What is the bulge rule?
A federal court has personal jurisdiction over a party who is
- added to the suit through impleader or required joinder AND
- served with process within 100 miles of the federal court where the suit is pending
102
What are the special rules for when venue is proper?
- foreign resident: any judicial district
- Federal Tort Claims Act: where P resides / where act/omission occurred
- foreign government: where D resides / where a substantial part of the accident occurred
- federal official sued in official capacity: where D resides / where substantial events occurred / where P resides (if no real property involved)
103
What happens if after a jury returns a verdict, a party or the court request a poll?
If there is a lack of unanimity or assent by the number of jurors to which the parties stipulated, the court may order the jury to continue deliberations, or it may order a new trial.
104
When can a motion for judgment as a matter of law be used to remove a case after an adverse verdict?
within 28 days after the entry of judgment
[I twenty H8 this verdict!]
105
What law is applied when a claim arises under federal-question jurisdiction?
federal courts must apply federal law, including federal common law, to both procedural and substantive issues
106
When may a party secure a jury trial on any triable issue (a LEGAL CLAIM with an AID over $20)?
1) by serving the other parties with a written jury trial demand no later than 14 days after the last pleading directed to that issue is served and
2) by filing the jury trial demand with the court within a reasonable time after service of the demand.
---
+an equitable claim is not entitled to a jury
+ the 7th Amendment right to a jury trial in civil cases does NOT apply to state courts
+the timing of a demand for a jury trial can be ANY TIME before 14 days after the last pleading is served
107
What are the situations in which a party may NOT conduct an oral deposition without the court's leave or the parties' stipulation?
1) the deposition exceeds the 10-deposition limit
2) the deposition is sought before the initial planning conference
3) the deponent was already deposed in the case.
108
What is required for a federal court to obtain SMJ over a class action under the Class Action Fairness Act?
1) the class contains 100 members,
2) at least one class member is diverse from at least one defendant (minimal diversity), and
3) the amount in controversy of the aggregated claims exceeds $5 million.
109
When must a party respond to an amended pleading?
1) when the court orders (priority)
2) the time that remains to respond to the original pleading, *
3) 14 days after service of the amended pleading*
* whichever comes first
110
When is a jury-instruction error preserved for appeal?
when a party timely objects to the instruction on the record and states the grounds for the objection. An objection is timely if it is made promptly after learning that a jury instruction has been or will be given OR that a request has been refused.
111
Parties must generally make initial disclosures of all documents and items that THE PARTY POSSESSES and may use to support a claim or defense.
If documents or items are in the possession of a nonparty, a party may issue a subpoena to compel the nonparty produce those documents or items.
112
Before an appeal is docketed in the appellate court, a district court can correct a mistake in a judgment, order, or other part of the record on its own initiative or pursuant to a party's motion.
But after an appeal has been docketed, the district court can correct the mistake only with the appellate court's leave.
113
What are grounds for extraordinary relief from final judgment within one year of the entry of a final judgment?
1) mistake, inadvertence, surprise, inexcusable neglect (w/n 1 year)
2) newly discovered evidence (w/n 1 year)
3) fraud, misrepresentation, misconduct (w/n 1 year)
114
When are claims identical for purposes of res judicata?
1) arise from the same transaction, occurrence, or series thereof and
2) could have been raised in the first action.
115
Generally, a failure to deny an allegation generally results in the allegation being admitted and conclusively established. What is an exception to this rule?
The failure to deny allegations related to the amount of damages in an answer does not deem them admitted and conclusively established.
116
When determining choice of law and it is unclear whether the issue is substantive or procedural, what question must be asked?
does federal law directly address this issue
117
In a choice of law analysis and the federal law DOES NOT directly address the issue, what is the test?
state law applies if it is outcome determinative AND there is no countervailing federal policy interest
118
What is an example of an unclear issue in choice of law analysis?
the deadline to commence an action under a statute of limitations
119
When is a state law outcome determinative?
If failing to apply state law would result in:
- forum-shopping
- inequitable administration of the laws
120
When can a court order a physical or mental examination of a party?
1) that party's condition is in controversy,
2) the motion is based on good cause, and
3) the order provides notice specifying the time, place, manner, conditions, and scope of the exam, as well as the person who will perform it.
+This is done by the court where the lawsuit is pending. NOT the court where the plaintiff lives.
121
When may a federal court impose reasonable sanctions (i.e., the punishment must fit the violation) on an attorney or party for noncompliance with a pretrial conference?
- failure to attend a pretrial conference
- failure to participate in good faith, or was substantially unprepared to participate, in the conference
- failure to obey a pretrial order
+As a sanction, the court is permitted to strike an affirmative defense by the violating party
122
When is it appropriate to motion for a JMOL?
ONLY after the nonmovant has had the opportunity to present evidence to establish that claim or defense (after opening statements) AND before the case is submitted to the jury
123
A P fails to prosecute the case or comply with a rule or court order. What can the D motion for to end this litigation and prevent future litigation on this claim?
involuntary dismissal. If the motion is granted, the case will be dismissed with prejudice (unless the court states otherwise) to prevent the plaintiff from suing the defendant on the same claim in the future.
124
What are the means that a party can strike potential jurors
- 3 peremptory challenges (for any reason except race, ethnicity, gender) (the court MAY view multiple Ps or Ds as one part)
- unlimited challenges for cause (unable to serve as a fair and impartial finder of fact)
Ex: At voir dire, the prosecutor exercised all of his peremptory challenges to exclude persons under the age of 30 from the jury. This is ok.
125
If the court orders a reply, the plaintiff may be ordered to respond to any allegation in the answer—including an affirmative defense (e.g., novation). Any allegation in the answer that requires a response and is not denied in the reply is deemed admitted by the plaintiff.
But when a reply is not required, then the plaintiff is deemed to deny any allegation in the defendant's answer
126
In an action with multiple claims or multiple parties, and the judge enters final judgment of only some of the claims or parties, when are these decisions immediately appealable?
The default rule is that the court order is not immediately appealable. However, if the court expressly states that the order is immediately appealable, then they can be appealed.
127
When a third party is impleaded into a case, when can the plaintiff assert his third-party claim against the third-party D?
the claim must:
- arise out of the same transaction or occurrence that is the subject matter of the P's claim against the D in the original claim AND
- the third-party claim itself has original SMJ
+This is often a more efficient means to join a 3rd party than filing a motion to join the 3rd party
128
What are the three ways process can be served?
1) following the rules of the state where the court is located or where service is made
2) delivering the complaint to the defendant personally (or authorized agent)
3) leaving the summons and complaint at the defendant's dwelling with a resident of suitable age and discretion
129
Generally, appeal is only allowed after final judgment. What are the exceptions in which there is appeal as a matter of right?
In Certain Circumstances, An Appeal Can Be Made Prematurely
- ---
- Injunction (PI & PI equivalent TRO that has been extended beyond 14 days)
- Certification
- Class action certification [discretionary]
- Appointment of receiver
- Admiralty case
- Collateral-order doctrine
- Bankruptcy cases (certain order)
- Mandamus (petition for writ)
- Patent infringement order
130
What are some factors that are used in determining whether the frequency or extent of discovery is disproportionate to the needs of the case?
ARAB II
- the Amount in controversy
- the parties' Resources
- the parties' relative Access to relevant information
- whether the Burden or expense of the proposed discovery outweighs its likely benefit
- the Importance of the discovery in resolving the issues
- Importance of the issue at stake
131
What happens when it is unclear if state or federal law should apply AND there is a federal law directly addressing the issue?
Federal law applies if the law is arguably procedural AND does not modify a substantive right
132
Who can the doctrine of claim preclusion (collateral estoppel) be asserted against?
a party to the first action because they had an opportunity to fully and fairly litigate their claims/defenses
133
A juror must participate in the verdict except in what circumstance?
the juror is excused by the court for good cause (e.g., illness, emergency, misconduct)during trial or after jury deliberations have begun
134
What does FRCP 11(b) do and when can a court impose monetary sanctions for a violation?
FRCP 11(b) covers representations to the court. Lawyers are required to certify that the papers were formed after an inquiry reasonable under the circumstances and it is not for frivolous/harassing purpose
Sanction proceedings can be initiated (1) by a party's motion or (2) on the court's own initiative—so long as the judge issues an order to show cause.
Ex: A judge sanctions a lawyer after the complaint just says the federal court "has subject matter jurisdiction." Even if the judge accepts an amended complaint with the grounds for SMJ, the sanction is still permitted.
+Sanctions cannot be imposed on a party represented by an attorney. It can be imposed on the attorney
135
When a party is impleaded into the case, the court must have original subject-matter jurisdiction or supplemental jurisdiction over the third-party claim
o
136
What can a deposition be used for?
Depositions can be used against any party who was present at or had reasonable notice of the taking of the deposition (1) to impeach or contradict the testimony given by the deponent at a hearing or trial or (2) for any other purpose permitted by the Federal Rules of Evidence.
137
What is the requirement regarding jury size and unanimity?
A jury verdict must be unanimous and returned by a jury of at least 6 (but no more than 12) members unless the parties stipulate otherwise.
If the parties agreed to a nonunanimous verdict, it is ok if the jury decides with a balance of something like 4-3
138
When will an amended complaint "relate back" to the date of the original complaint to include a new D?
1) the same occurrence is at issue as that in the original complaint,
2) the new party received notice of the suit within 90 days after the original complaint was filed
3) the new party knew or should have known that it would have been sued but for a mistake about its identity.
-The proper focus when applying the third element is on the defendant’s knowledge, rather than on information in the plaintiff’s possession. Although the latter may be relevant, it is not dispositive. Krupski
139
What happens when an appellate court chooses to hear an appeal from a district court that grants or denies class certification?
The district court proceedings are stayed pending the appeal ONLY when ordered by the district court or the appellate court.
140
In diversity jurisdiction, can the court exercise supplemental jurisdiction over another claim that would destroy complete diversity of citizenship?
NO
141
In CA Superior Court, what are the three SMJ classifications of cases?
- small claims: AIC is 10k or less for actions by individuals; 5k or less by other parties
- limited: AIC is 2.5k or less
- unlimited: AIC is more than 25k
142
How does a cases in CA court get reclassified SMJ?
automatically when the AIC changes
143
What happens if a CA case's SMJ is misclassified?
Superior Court keeps jurisdiction through two options:
- Reclassify the case from unlimited to limited if the verdict will necessarily by 25k or less
- Reclassify the case from limited to unlimited if the verdict might be above 25k
144
What is the test in CA state court for obtaining PJ over an out of state defendant?
Ask:
1) Does the D have sufficient minimum contacts with the forum state. In other words, did the defendant purposefully avail herself in a substantial way such that she should have anticipated being sued in CA?
2) Would exercising jurisdiction offend fair play and substantial justice? (this is a discretionary call based on CA's interest/policy, judicial efficiency, vs. the burden on the defendant
145
The same DP standards apply (i.e., minimum contacts) if CA wants to exercise in rem, quasi in rem, or attachment jurisdiction over property belonging to an out-of-state D.
o
146
CA DOES NOT follow the majority rule that nonresident defendants are immune from personal jurisdiction if they come here temporarily to participate in a judicial proceeding
Essentially, this punishes someone for being a good litigant
147
In CA, where is venue appropriate?
in the superior court of the county where the claim arose OR where any D resides
148
In CA, where is venue appropriate for "transitory" actions (where the claim could have taken place anywhere)?
In the county where any D resides when the action commences. If no defendant resides in CA, then in any county in CA.
149
Contract exception to the general "transitory" action rule, in CA court?
In a contract action, venue is proper in the county where the contract was executed or performed
150
Personal injury exception to the general "transitory" action rule, in CA court?
In a personal injury or wrongful death action, venue is proper in the county where the injury occurred
151
In CA, where is venue appropriate for mixed action (i.e., actions subject to multiple venue rules)?
in a mixed action, venue is proper in the county where any defendant resides unless there is a compelling reason to conduct the trial in another county
152
In Ca, where is venue appropriate in a suit against a corporation, association, or partnership?
- for corporations, its principal place of business
| - where the business executed or performed the contract, where a breach of contract happened, or where liability arose
153
BB is a corporation with its principal place of business in San Diego County. P goes to BB in Newport Beach OC and signed a contract to buy a tv for $2,000 and BB later breached the contract by not delivering. What court has venue?
either OC or SD
154
When is transfer of venue permitted in CA?
- P sues in the wrong county court
- Court concludes a fair trial cannot be held here
- Court concludes it is more convenient for witnesses elsewhere
- Court concludes no judge is qualified to act
155
Pedro sues Dan in LA County Superior Court for the tort of battery, claiming that Dan punched Pedro at a Dodgers game. Dan moves to transfer venue to Kern County where he resides. Should the court grant Dan's motion?
No. It is a personal injury suit, so venue is proper where the injury occurred, which is LA county. The specific rule trumps the general rule that venue should be where the defendant resides.
156
In CA, what happens when more than one state has an interest in applying its tort laws?
the court must determine the comparative impairment of each state's interest if the other state's laws are applied
157
What do CA courts do when there is a choice of law clause (provision saying which state's law applies if there is a dispute)?
Determine whether the law substantially relates to the parties or the transaction
- If no, it is unenforceable
- If yes, then decide whether the chosen law conflict with CA public policy and if so, decide which state has a greater interest in the issue
158
What do CA courts do in a contract case when there is no choice-of-law clause (or it is unenforceable)?
the court applies a comparative governmental interest test
159
What is the order in CA for executing proper service of process?
1) serve the defendant in person
2) if despite reasonable diligence, the P cannot serve the D in person, then service is permitted by serving a responsible adult at D's home or place of business
3) If not possible, then service by publication is allowed
160
What is the difference between CA and Fed when waiver of service occurs?
Waiver of service in CA DOES NOT extend the defendant's deadline to respond
161
Unlike the use of notice pleading in federal court, what type of pleading is required in CA court?
fact pleading.
162
What are the 2 requirements of fact pleading?
- parties must allege all material facts that give rise to each cause of action and demand for judgment
- the exact dollar amount of damages must be included (except for personal injury or wrongful-death actions)
163
What is the name of the motion in CA court that operates like a Federal 12(b) motion?
demurrer
164
In CA, when may a general demurrer be used?
- to challenge the court's SMJ
| - to argue that the P has not set forth facts sufficient to establish a cause of action
165
In CA, what are reasons to use a special demurrer?
- the D lacks legal capacity
- there is a similar action pending in another court
- problem with joinder
- pleading is unclear
- plaintiff in a contract action failed to state whether it was oral or written
166
In CA, what must a party do prior to filing a demurrer?
the party must first confer with opponent to try to resolve the problem
167
In CA, what is the appropriate motion to challenge personal jurisdiction?
motion to quash service of summons
168
In CA, when must a motion to quash service of summons be filed?
Before any other responsive pleading.
169
In CA, what happens if the D objects to PJ in the answer, rather than by motion to quash?
The defendant has made a general appearance and waived this objection to PJ
170
In CA, what is the motion to strike?
A motion that strikes irrelevant, false or improper matters; or any pleading that conflicts with CA law or a court order
It must be filed within 30 days of the pleading that is being challenged
171
In CA, what is an anti-SLAPP motion?
a motion in which the defendant demonstrates that the plaintiff's claim arose from the defendant's exercise of protected first amendment rights
--
D WINS unless P can be show he will probably win on the merits (an extremely tough burden)
172
In CA, what must the D do if their demurrer or motion fails?
they must file an answer within 30 days of being served with either a specific denial of particular allegations or a general denial. Anything not denied is deemed admitted.
173
In CA, what should the D do if he wants to assert a cause of action against the plaintiff?
The defendant must file a separate cross-complaint. This is unlike the federal rules which allow the defendant to assert a cause of action in the answer
174
In CA, what is included in a cross-complaint?
counterclaims; cross-claims against co-defendants; and impleader against third parties
175
In CA, what happens if the D's cross-complaint relates to the P's cause of action?
the cross-complaint is compulsory (it must be filed or it is waived)
176
In CA, what happens when a party amends a pleading after the statute of limitations has run?
the relation back doctrine applies. The amendment relates back to the original pleading date if it arises from the same transaction or occurrence; the amended pleading is not time barred
177
In CA, what are the 2 requirements of the relation back doctrine?
1) the amended pleading must concern the same accident and injuries as the original pleading
2) the amended pleading must refer to the same offending instrumentality
178
In CA, what happens when the P names the wrong party?
the plaintiff can later name the correct defendant, even after the statute of limitations has expired.
179
Unlike the FRCP, CA allows a P to name a fictitious "Doe" defendant. The P has 3 years from the date of filing the original complaint to identify and serve and "Doe" defendants, and it relates back to the original complaint
o
180
In CA, to substitute a "Doe" with he defendant's true name, what are the requirements?
1) the original complaint was timely and had sufficient facts;
2) the P did not know the name, the facts, or that the law allowed a cause of action; and
3) the complaint stated the P's ignorance
181
In CA, sanctions operate similarly to the FRCP 11 rules. What are some distinctions?
- the court must decide if the party requesting sanctions exercised due diligence
- The 21-day grace period for correcting offending conduct applies not only where a party served the motion, but also where the court acted on its own
- a party who brings a motion for sanctions for an improper purpose can be sanctioned
182
In CA, when is intervention by a non-party allowed?
Only if the non-party's interest is direct and immediate. (this is not as generous as FRCP 24(b))
183
What is a good example of an intervening party being able to intervene in federal court, but not CA court?
A tort claim by a neighbor who has a squealing pig. A neighbor down the street who claims their property value will decrease will likely be able to intervene in FC, but they likely could not in CA because their interest is not direct or immediate.
184
In CA, what is required for a court to allow joinder of claims involving multiple defendants?
the claims must involve at least one common question of law or fact
185
In CA, when can a party bring a class action?
1) the parties are numerous and it is impracticable to bring them all before the court; OR
2) the question presented is of common interest to many persons
186
In CA, what is needed for class action certification?
1) an ascertainable class; and
| 2) a community of interest among the members
187
In CA, what factors are considered in determining if there is a community of interest among the members?
ABC
- the named representative will Adequately represent the class
- a class action will Benefit the parties and the court and
- Common questions of law or fact predominate
188
In CA, how is SMJ obtained in a class action?
the amount in controversy can be obtained by totaling the claims of individual class members
189
Unlike the federal rules which always require that the plaintiff pay for notice to class members, what is the CA rule on paying for notice?
the court decides who bears the cost of notice
190
In CA, a Superior Court order denying class certification is immediately appealable
o
191
What are the CA and federal standards for discovery
CA: any material relevant to the subject matter (broader)
F: any matter relevant to a claim or defense AND proportional to the needs of the case
192
Why does CA have broader protections of privileged material?
the CA constitution contains an express right to privacy. Therefore, courts must balance this privacy right against the opposing party's asserted need for the information
193
In CA, all parties must justify (not merely assert) the claim of privilege.
o
194
Unlike the FRCP which protects trial preparation materials broadly, what does the CA rule protect?
Only the attorney's work product (documents containing the attorney's research, legal opinions and conclusions, evaluations of the case, impressions, tactics as well as an investigator's recordings if it reveals the attorney's tactics)
195
In CA, what is the rule on experts?
A party can request lists identifying experts, their proposed trial testimony, and their reports. Experts must be available for deposition
196
What is the CA rule on electronically stored information?
it is treated the same as physical documents and things
197
Unlike the federal rules, CA does not require parties to confer about discovery or provide a discovery plan
But, within 180 days of the complaint's filing, the court must hold a case management conference to discuss all aspects of the case, including discovery
198
What is the difference between CA and federal rule regarding the number of depositions
CA does NOT limit the number; FRCP restricts each party to 10 depositions
199
What are the differences in interrogatories between CA and FR?
CA: a party may serve as many judicial council form interrogatories as they please, but only 35 individually drafted interrogatories (more if good cause is shown)
FR: interrogatories are limited to 25
200
In CA, when may a party motion to compel?
1) the moving party believes that a response to discovery is incomplete, evasive, or contains baseless objections
2) the moving party must first have made a good faith effort to informally resolve the problem (going to court should be a last resort)
201
What is the difference between CA and FR when a case is voluntarily dismissed after trial begins?
CA: the dismissal will be with prejudice
FR: the dismissal will be without prejudice
202
Unlike federal law, there is no requirement of unanimity in CA trials. All that is required is three-quarters majority
o
203
What is the name for the CA equivalent motion as a judgment as a matter of law (directed verdict)?
motion for nonsuit
204
What is the CA/F distinction regarding JNOV?
CA: no requirement for a prior motion for a directed verdict
F: The movant must have attempted to obtain an earlier judgment as a matter of law
205
When a CA judge uses remittitur or additur, the party must accept the reduction or addition that the court proposes within how many days?
The proposal must be accepted within 30 days. If not, there is automatically a new trial regarding damages
206
What are the F and CA rules when the party receives a damaging judgment due to the mistake or negligence of the attorney that resulted in a default judgment or dismissal?
F: The DC has discretion to grant relief to avoid injustice
CA: CA law requires a court to grant relief in these narrow circumstances
207
What is the difference between F and CA in defining "final judgment?"
F: once the trial court renders its final judgment
CA: once the trial court enters judgment against one party (of many) and leaves no issue for decision as to that party
Ex: P1 and P2 sue D. Court grants D's motion for nonsuit against P1. Is that a final judgment that P1 can appeal?
In CA yes, because the judgment is final as to P1. In FC, it would not be final because the case is still live as to P2.
208
CA and FC both follow the general rule that interlocutory (nonfinal) orders are not appealable. What are the CA exceptions?
1) order made after an appealable judgment;
2) order granting a motion based on forum non conveniens or to quash service of summons;
3) order granting a new trial or denying a motion for JNOV;
4) order imposing sanctions greater than $5,000.
209
In CA only, what is the collateral-order rule?
A party may appeal a dispositive interlocutory order on an issue collateral to the merits that directs the payment of money or doing an act.
210
What are the differences between F and CA in claim preclusion (res judicata)?
1) CA treats judgment as final not when it is rendered (as federal courts do), but rather when the appeal process concludes (or the time for appeal expires)
2) CA courts do not apply the federal transactional approach, but rather the primary rights doctrine
211
What is the primary rights doctrine?
causes of action are based on individual harms, and redress may be sought for one harm in each suit. For example, in an automobile accident, an injured plaintiff may sue in one action for personal injury and in a separate action for property damage. Each injury is an invasion of a different “primary right.”
212
What are unusual ways to achieve the AIC?
- punitive damages
- injunctive relief (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.)
- Attorney's fees MAY be made part of the AIC if the fees are recoverable by contract or statute
213
How does another plaintiff assert state law claims through supplemental jurisdiction?
The additional plaintiff can join the action SO LONG AS the claim is related to a claim that already qualifies under federal question jurisdiction
214
What is the format for discussing a personal jurisdiction question?
1) Traditional basis
- service while voluntarily present
- domicile
- consent (express/implied)
2) Modern basis (relying on a long-arm statute or similar)
- minimum contacts (purposeful availment, foreseeability)
- relatedness of the conduct to the forum (general/specific jurisdiction)
- fairness
215
If given a long-arm statute in an essay fact patter, note that it is not given and that it will be assumed that it extends to the full extent allowed under the due process clause of the constitution
o
216
What are the fairness factors in personal jurisdiction analysis?
FIBS
- interest of the Forum state in adjudicating the matter
- Interest of the judicial system in the efficient resolution
- Burden on the D
- Shared interests of the states in promoting common social policies
217
What are the 3 things you need to cover if the essay is of a transfer to a new district?
Whether there are any SMJ, PJ, venue issues.
218
In a diversity case, if the court transfers the case then the district court to which the case is transferred must apply the law that would have been applied in the district court that transferred the case
In a federal question case transferred to a district court in another appellate circuit, the district court to which the case is transferred must apply the federal law as interpreted by its federal Court of Appeals and not as interpreted by the federal Court of Appeals in which the district court that transferred the matter is located.
219
What is the relation back doctrine?
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.
It can alos apply to a new D
220
What is the work product doctrine?
A privilege that protects materials prepared by a party in anticipation of litigation
221
The physician-patient privilege exists where?
in CA, but NOT in FC
222
What are the exceptions to the work product privilege?
1) work product materials contain information not reasonably available by other means; and
2) the party would be substantially prejudiced if not allowed to access the materials
223
federal courts can exercise supplemental jurisdiction over crossclaims—even if they violate diversity jurisdiction.
o
224
When may a court clerk enter a default judgment?
(1) the plaintiff's claim is for a sum certain or a sum that can be made certain by calculation,
(2) the plaintiff's request for default judgment includes an affidavit establishing the amount due,
(3) the defendant failed to appear, AND
(4) the defendant is not legally incompetent or a minor.
If not all these requirements are met, then then only the court may enter a default judgment
225
What are some clearly substantive and procedural issues?
S: legal right/duties, elements of clam/defense, the statute of limitations, the burden of proof
P: filing deadlines, discovery rules, sufficiency of the pleadings, right to a jury trial
226
What is the two dismissal rule?
a voluntary dismissal is with prejudice when the plaintiff (1) voluntarily dismissed an action in federal OR STATE court without a court order and (2) filed a notice of voluntary dismissal in a second action on the same claim in federal court.
+the voluntary dismissal of a second action operates as an ADJUDICATION ON THE MERITS
+If the second dismissal was dismissed by the parties signed stipulation, then the rule does not apply. This makes sense because the purpose of the rule is to prevent harassment by the P, but that is not an issue here
227
What are the three types of class actions?
- Prejudicial risk: when separate actions would create a risk of inconsistent decisions regarding the parties or impairing absent class members' interests
- Common question: when common questions of law or fact predominate over individual questions and a class action is the best method to fairly and efficiently adjudicate the dispute
- Final equitable relief: when injunctive or declaratory relief is appropriate because the opposing party's actions generally apply to the whole class
228
What is the Pullman doctrine?
Resolution of unsettled state law in state court would moot federal constitutional issue
229
What is the Burford doctrine?
Injunction or declaratory judgment would interfere with complex state regulatory scheme that serves important state policy
[imagine an injunction in MI of a car regulation because of FORD]
230
What is the CO River doctrine?
Pending state proceeding involving substantially same parties & issues presents exceptional circumstances that justify conserving judicial resources
[Remember: if a similar case is already flowing down the CO river, then abstain]
231
What is the Younger doctrine?
The federal court should abstain because:
Injunction or declaratory judgment would interfere with pending state proceeding that involves important state interest & provides adequate opportunity to litigate federal claims
[remember: don't mess with Younger brother]
232
A federal court generally must adjudicate a suit over which it has subject-matter jurisdiction, even when a similar action is pending in a state court.
However, a federal court with subject-matter jurisdiction may abstain from hearing a case or stay the matter pending adjudication of the similar state court action when an abstention doctrine applies
233
When can a party file a motion for sanctions?
21 days after serving that motion on the alleged violator. This safe-harbor rule gives a violator time to correct the violation.
234
What happens when the jury's verdict and the answers to the interrogatories are inconsistent?
the judge must:
(1) order a new trial,
(2) direct the jury to further consider its answers and verdict, or
(3) enter a judgment consistent with the answers.
235
When a plaintiff requests that a defendant in the U.S. waive service of process, the plaintiff must give the defendant how many days to return the waiver?
If given, how long does the defendant have to serve an answer to the complaint?
When a plaintiff requests that a defendant in the U.S. waive service of process, the plaintiff must give the defendant at least 30 days to return the waiver. If the defendant timely waives service of process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent.
236
What is the certification exception to the final-judgment rule?
when the DC certifies an order for interlocutory appeal by stating in writing that:
1) there is a substantial difference of opinion on a controlling question of law AND
2) an immediate appeal may materially advance the ultimate termination of the litigation
+The application to the appellate court must be made within 10 days after the entry of the order
237
What is forum non conveniens?
A common-law doctrine that allows a court to DISMISS an action, even if PJ and venue are otherwise proper, if:
1) the court finds that the forum would be too inconvenient for parties and witnesses; AND
2) another, more convenient venue is available
+it can even happen in a foreign jurisdiction
238
What is the appellate standard of review of a fact issue?
bench trial: clear error (reverse if no reasonable judge would have made finding)
jury trial: substantial evidence (reverse if no reasonable jury would have made finding)
239
When can a TRO be issued without notice or a hearing?
1) the movant establishes under written oath that he/she will suffer immediate and irreparable harm before the nonmovant can be heard AND
(2) the movant's attorney certifies in writing any efforts made to give notice and why notice should not be required.
240
A written interrogatory is a discovery device that allows a party to request answers to questions that are relevant to a party’s claim or defense and not privileged. However, interrogatories may not be used to request a document. What should be used to obtain a document during discovery?
A request to produce document.
It is a discovery device that allows a party to request production of and/or inspection of designated documents.
241
The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is deemed waived, unless the court, for good cause, excuses the failure.
o
242
In general, tax returns may serve as a method of establishing what the D made each year in wages, which is relevant to determining how much she incurred in lost wages, which she is seeking, and thus is discoverable. However, the request for tax returns going back a full 20 years before the injury occurred is too broad in scope because what she made 20 years ago up until the injury at issue are not all relevant to determining how much she currently has incurred in lost wages
o
243
When is it permitted to use discovery on an expert who is being used by another party in anticipation of litigation or to prepare for trial but is not expected to be called as a witness?
discovery is permitted only on a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
244
What must parties do when they are relying on an expert who may testify as an expert witness?
1) disclose the identity
2) produce an expert report that includes their name, qualifications, opinions to be offered, basis for all opinions, fact and data used
245
When the United States is a defendant in a civil action, who must be served?
- the U.S. Attorney General
- the U.S. attorney for the district in which the action has been filed AND
- any agency or officer whose official conduct is being challenged
Ex: The Department of Homeland Security is sued for establishment clause violation. The US Attorney General, US attorney for the district, and the Department of Homeland Security.
246
A plaintiff obtains a prejudgment attachment against the defendant's property in another state to prevent the sale until the pending litigation resolves. What must be present for this to occur?
the state that is holding the property must have personal jurisdiction over the defendant
247
Can a plaintiff amend the pleading to include a new claim, even if it is barred by the statute of limitations?
yes, the plaintiff can amend the complaint even though the claim appears to be barred by the statute of limitations. An 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
248
What happens when an action involves both legal and equitable claims that raise issues of fact common to both?
the jury must be permitted to determine these issues by trying the legal claim first (due to the 7th A). Then the court determines the equitable claim, but is not bound by the jury's findings of fact on the legal claim.
249
If something is protected by privilege, what must be shown to get the evidence through discovery?
substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
250
What can happen if a party acts in bad-faith during litigation?
the federal court may properly use its inherent power to assess attorney's fees as a sanction for a defendant's bad-faith conduct. This is even if the law of the forum state provides that attorney's fees may not be awarded to a successful party.
251
When the judge is the finder of fact, the judge must find the facts specially and state its conclusions of law separately.
The findings and conclusions may be stated on the record after the close of evidence OR may appear in an opinion or a memorandum of decision filed by the court. The court is not required to state findings or conclusions when ruling on a motion under Rule 12 (motions against the complaint) or Rule 56 (summary judgment) or, unless the rules provide otherwise, on any other motion.
252
Who must be served when a plaintiff is pursuing an action against a U.S. officer or employer in his individual capacity?
the plaintiff must serve not just the defendant, but the US as well whenever the lawsuit is based on duties performed on behalf of the US
253
Pursuant to Rule 18(a), a party who can assert a claim, counterclaim, cross-claim, or third-party claim (i.e., a qualifying claim that clearly can be brought under the Federal Rules) may join with it as many independent or alternative claims of whatever nature as the party may have against an opposing party.
BUT if the original claim against a particular defendant was a federal question claim, a non-federal claim could not be joined to it under 18(a), unless either diversity exists, or the two claims are closely related so that the doctrine of supplemental jurisdiction applies.
254
How does a court analyze whether a complaint fails to allege facts sufficient to support a cognizable claim?
First, the court must identify and reject legal conclusions unsupported by factual allegations. This includes mere conclusory statements and assertions devoid of facts.
Second, the court should assume the truth or veracity of well-pleaded factual allegations and should include a “context specific” analysis that draws on the court’s judicial experience and common sense to determine whether the allegations plausibly give rise to an entitlement of relief.
255
Federal courts require notice pleading, which means that the pleading must put the opposing party on notice of the claim by pleading facts supporting a plausible claim. What does Rule 8(a) require the complaint to include?
Under Rule 8(a), the complaint must contain a statement of subject matter jurisdiction, statement of the claim, and a demand for relief. If the cause of action is for fraud, mistake, or special damages, then it must be pleaded with particularity or specificity.
256
For purposes of AIC, how do courts calculate a request for specific performance?
Specific performance can be valued by measuring the value of the benefit to the plaintiff or the cost of compliance for the defendant.
257
Who can serve?
anyone who is at least 18 who is NOT a party to the action
258
What is the restriction on alienage jurisdiction?
there is no federal jurisdiction in an action between an alien and an alien, unless there are also US citizens on BOTH sides of the controversy
259
Removal must happen within [time]?
30 days of service
[thirty & remove both have 6 letters]
260
When does federal question jurisdiction arise?
cases arising under the Constitution, a federal law, or a treaty
261
How far can a subpoena compel someone?
A subpoena can compel attendance at a trial, hearing, or deposition within 100 miles of where the subpoenaed person resides, works, or transacts business.
A subpoena can also compel a party or officer anywhere within the state where the person resides, is employed or regularly transacts business
262
What happens once a D files a notice of removal?
the case is AUTOMATICALLY transferred to federal court. The FC can then remand if necessary
263
When may a party take depositions?
after the party has made its mandatory initial disclosures
264
When must pretrial disclosure be made?
at least 30 days before trial
+Pretrial disclosures include: name, address, phone of each witness; deposition testimony that will be used at trial; and all documents and exhibits
+these requirements do NOT apply to witnesses and evidence that will be used solely for impeachment
265
When must objections to the use at trial of deposition testimony, documents, or exhibits be made?
within 14 days after the disclosure or the objections are waived
266
What must the court do when an attorney representing co-defendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest?
The trial judge must either grant the motion or at least conduct a hearing to determine whether appointment of separate counsel is warranted under the circumstances. Failure of the judge to do so requires AUTOMATIC reversal of a subsequent conviction.
267
When an action is dismissed due to the failure to timely serve process, what type of dismissal is it?
without prejudice
268
What is required when the plaintiff sends a written waiver-of-service request to the defendant via first-class mail?
The waiver must include:
- the name of the court
- the date the request was sent
- a copy of the complaint
- 2 copies of the waiver form
- a prepaid means to return the signed form
269
What is the general rule when there is a conflict of law issue that involves real property?
typically the law applied by the forum court should be the law as applied in the court where the property is located
270
What law governs when there is an issue that relates to foreclosure but does not affect an interest in land (e.g., a lender's right to sue the borrower before foreclosing on the mortgaged property)?
the decision on which state's law to follow is determined by the law of the state with the most significant relationship to the transaction and parties
271
When is someone bound by a preliminary injunction?
A preliminary injunction binds someone if they receive actual notice
+This includes the parties' officers, agents, employees, and attorneys. Additionally anyone who is in active concert with the named persons
272
What is a writ of mandamus?
before final judgment, it is a petition that requests an appellate court to direct a district court to do or refrain from doing something when exceptional circumstances clearly exist and there is no other adequate remedy available
+Situations when it is appropriate are rare, such as:
- -a district court exercising unlawful jurisdiction
- -a district court threatens separation of powers
- -a district court is violating a party's 7th Amendment right to a jury trial
273
What is a motion for a protective order?
a motion to get a protective order which is primarily used to protect a party from annoyance, embarrassment, or undue expense during discovery
+Requirements: good cause and certification that the movant conferred or attempted to confer to resolve dispute
274
What is a motion to correct a mistake?
a motion to fix a clerical order. This does not apply to fix an erroneous interpretation of law.
275
What happens if a nonparty fails to answer a deposition question?
the court where the deposition occurred can order the nonparty to answer the question. This court can be different than the court actually trying the case. If the nonparty fails to obey the order, the court overseeing the deposition can sanction the nonparty by holding him/her in criminal or civil contempt of court
276
Generally a party challenging an adverse federal district court ruling has how many days after the entry of final judgment to file a notice of appeal with the district court clerk? What about if one of the parties is the US, a federal agency, or a federal officer or employee sued for conduct that relates to government duties?
The typical requirement is within 30 days after the entry of final judgment. But this is extended to 60 days in the case of the federal government or federal employees
277
What is the omnibus motion rule?
This rule requires that all FRCP 12 defenses be consolidated in a single pre-answer motion. Therefore, if a defendant files a pre-answer motion or answer and is missing an FRCP 12 defense, the defense is waived.
+Failure to state a claim, state a legal defense, or join a required party may still be asserted in an answer or post-answer motion
+Forum non conveniens is NOT one of the motions that must be made otherwise it is waived
278
What are the main FRCP 12 defenses?
- lack of personal jurisdiction
- improper venue
- insufficient process or service
279
What is the collateral-order doctrine?
Generally, final judgment must be entered before an appellate court can acquire jurisdiction over a case. However, this doctrine allows a matter to be heard if:
- the order conclusively resolves an important issue
- that issue is separate from the merits of the underlying claim
- the order cannot be effectively reviewed on appeal from a final judgment
+Ex: denying 11th A immunity
+Ex: denying government official/employee immunity
+remanding action to state court based on abstention
280
What is an example of the collateral-order doctrine in play?
A police officer is sued in a federal district court for excessive force during an arrest. The officer moved for summary judgment on the grounds of immunity. The DC denied the motion. But the collateral-order doctrine allows the immunity issue to be appealed immediately.
281
When must a notice of appeal be filed with the district court? What about if there was a posttrial motion filed within 28 days after final judgment is entered?
Typically, a notice of appeal must be filed within 30 days after the entry of final judgment.
If there was a posttrial motion filed, then the notice of appeal must be filed within 30 days after the court enters an order disposing of the motion.
282
Is a potential tortfeasor facing joint and several liability a required party?
No. Joint and several liability allows a plaintiff to obtain complete relief from any one of the tortfeasors. The tortfeasor may later sue the absent party for contribution.
283
What is an example of a request that is NOT a sum certain and therefore, the clerk cannot enter a default judgment?
A wife sues a boxer who punched and killed her husband. The wife claims 10 million in damages for loss of future income and loss of companionship. This is not a sum certain because the man's future earning potential and the value of the companionship are not specified or set amounts
The court could later enter a default judgment after the judge conducts a hearing to determine the proper amount of damages to award
A sum certain is when there is no factual doubt about the amount without considering evidence (exs. promissory notes, statutes clearly state the amount)
284
What is the rule regarding minimum contacts over property held in a state?
Property located within the state can establish the minimum contacts necessary for personal jurisdiction if the property is related to the dispute. However, minimum contacts are not established if the property is unrelated to the plaintiff's claim.
Ex: A Defendant is being sued for breaching a shareholder's agreement. The D's property in another state is attached to satisfy the judgment in the case. Minimum contacts are NOT present because the company's claim is unrelated to the D's ownership of the house
285
What is the main test used when it is unclear whether something is substantive or procedural?
the outcome-determinative test
286
What are the two sources that sometimes are used to get to the amount in controversy?
punitive damages and attorney's fees
287
What is the source that never is used to get to the amount in controversy?
interest & cost
288
What is a motion to compel?
when a party fails to make the required automatic disclosures, then the party seeking the information may move to compel such disclosure. It must be served on all parties and be accompanied by a certificate that the movant has in good faith conferred or attempted to confer to obtain the disclosure.
289
What is the rule statement for discovery?
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. Admissibility of the evidence at trial does not matter for determining relevance for purposes of discovery. The test is whether the information sought is relevant to any party’s claim or defense.
290
What does due process require of notice to a defendant?
the defendant must be reasonably apprised of the pending suit and afforded an opportunity to present objections. Actual notice IS NOT required.
Ex: A P sends two letters and they both are returned to the sender, then the P must take additional reasonable steps to provide notice
Ex: A corporation has the defendants' names and addresses but still serves by publication. But when the plaintiff knows or can reasonably obtain this information, a more reasonable means of service must be used.
291
What happens if a party fails to respond to a request for admission within 30 days after being served with the request?
if not responded to within 30 days, the matter is conclusively established EVEN if the party earlier denied liability
+the established matter cannot be used against the party in another proceeding or for another purpose
292
When does a federal court sitting in diversity jurisdiction use federal common law, instead of the typical state law to substantive issues?
federal common law governs substantive issues in rare instances when a uniquely federal interest significantly conflict with the operation of state law
Ex: protecting military-equipment manufacturers from liability is a uniquely federal interest as applying state laws would adversely affect the manufacturers contracts with the federal government. Therefore, federal common law applies
293
What happens when a diversity suit involves a state-less person, meaning either a US citizen domiciled in a foreign country or a noncitizen present in the US but not a citizen of a foreign country?
diversity does not exist if even just one stateless person is involved
294
What are situations which create evidence that a juror is biased and should therefore be disqualified?
The juror's relationships, pecuniary interests, or clear biases threaten impartiality.
+Just because a juror says they could fairly consider the case may not be enough. This statement is considered, but in comparison to the other sources of bias.
295
What is the rule on discovery of experts who are not expected to testify?
Facts known and opinions held by an expert not expected to testify, including the expert's identity, are privilege and not discoverable except in exceptional circumstances
296
A man's sues his employer for sexual harassment and the court enters summary judgment in favor of the employer because all the witnesses testify that they saw nothing. Two years later, one of the coworker says they were all paid by the employer to lie. Can the man immediately file a motion to obtain relief from the entry of summary judgment?
No. It was not made within one year of the entry of summary judgment. A party may obtain extraordinary relief within ONE YEAR of a final judgment or order based on:
- mistake
- excusable neglect
- newly discovered evidence
- opposing party's fraud, misrepresentation, or misconduct
297
What is the motion that should be made after the jury makes an adverse verdict?
judgment as a matter of law
298
What happens if the deposing party does not show but the party being deposed does attend?
the deposing party is liable for the reasonable expenses of attendance, including attorney's fees, incurred by the party that attended
299
What is the rule on discovery of materials held by expert witnesses expected to testify and what are the exceptions?
materials held by an expert witness expected to testify at trial are discoverable with two exceptions:
- drafts of expert reports or disclosures
- privileged attorney-expert communications
300
Generally, when an expert is expected to testify all attorney-expert communications are privileged. What are the exceptions?
- communications relating to the expert's compensation
- communications that identify facts or assumptions provided by the attorney that the expert considered in forming his opinions
Ex: After reading the draft report, the attorney noticed that certain facts were missing. To correct this issue, the attorney emailed the expert and provided additional facts to include in the report. The expert then revised the report with these facts. If the opposing party serves a request for production on the attorney to produce the email exchange with the expert, the attorney must comply because the email contained facts that the expert relied on to revise his report
301
Where a company filed its articles of incorporation is enough for personal jurisdiction over a company.
o
302
A party must generally raise a formal objection at trial to preserve her right to challenge an error in a post-trial motion or on appeal. But if a party fails to do so, what is the standard?
the challenged error can still be reviewed for plain error
303
What makes a "final equitable relief" class action invalid?
it is invalid if the suit is also seeking individualized monetary relief
304
Where must the motion to compel a response be filed when the deponent is a nonparty? A party?
For a nonparty, the motion must be filed in the district where the deposition occurred.
For a party, the motion must be filed where the lawsuit is pending.
305
What is required when deposing an organization?
the notice must describe the matters for examination with reasonable particularity
306
What must the court considering issue preclusion do when determining choice of law?
the court must look to the law of the forum that entered the first judgment
307
What can a court not impose as a sanction for a party's failure to undergo a mental or physical examination?
The court CANNOT impose contempt of court
308
An accounting firm brought a federal diversity action against a former client for failing to pay for the firm's audit of the client's financial statements. After the client answered, the parties settled, and the court dismissed the action with prejudice. The client subsequently sued the firm for negligently performing the audit. The firm moved to dismiss the negligence action on the basis of res judicata (claim preclusion). Is the court likely to grant the motion.
Yes, because the negligence claim was transactionally related to the claim in the first action (they arose from the same audit) and should have been asserted as a counterclaim
309
When is a motion for JMOL appropriate?
before the case was submitted to the jury OR within 28 days after the entry of final judgment
The 28 day deadline CANNOT be extended
310
Can a party who discovers a new legal theory seek a new trial on this basis?
No. A party can move for a new trial within 28 days after the entry of final judgment, but it cannot be on the grounds of a newly discovered legal theory that the party could have raised at trial
311
When a D is a nonresident of the US, where is venue appropriate?
in ANY federal judicial district. It does not matter if there is a district that has PJ over the nonresident
312
An injured pedestrian filed a diversity action in federal court against a truck driver. The truck driver filed an answer in which he denied liability and asserted an affirmative defense that the pedestrian was contributorily negligent and did not assert any counterclaims. 30 days later, the pedestrian seeks to file a pleading to respond to allegation in the answer. May the pedestrian file a response?
No, because the truck driver did not assert a counterclaim and the court did not order a reply
A P may respond to a D's answer by filing:
- an answer if the D asserted a counterclaim OR
- a reply if the court orders it
313
What happens if a privileged communication is disclosed in state court and is now being offered in federal court?
the federal court will review the federal rules AND the law of the state where the disclosure occurred. Whichever law offers more protection determines the effect of the disclosure.
314
When can a defense based on failure to join a required party be raised?
at ANY time before the end of the trial
315
What is the approach when faced with a compulsory (required) joinder question?
1) see if this is a required party
| 2) consider whether it is feasible to join the required party
316
What is considered when deciding if joining a required party is feasible?
Will there be SMJ, PJ, venue?
317
What is the rule on a party requesting production of electronically stored information (ESI)?
The requesting party may specify the form in which it is to be produced. If no form is specified, the producing party must produce ESI in its ordinarily maintained or reasonably usable form but need not produce the same ESI in more than one form
If the producing party shows that the ESI is not reasonably accessible due to burden or cost, the court will order the production of the ESI only if the requested party demonstrates GOOD CAUSE for the production
318
If a court has PJ over a D, but the D still wants to have the case in their home jurisdiction, what is the best option to do this?
motion to dismiss the lawsuit under the doctrine of forum non conveniens
This can even happen in a foreign jurisdiction
319
What is the special rule for service of a minor or incompetent person?
The P must follow the rules of the state where service is made
320
What is the special rule for service of a state or local government?
P has two options
- deliver notice to chief executive officer OR
- follow rules of state where government is located
321
What must be included in the motion to compel?
certification of good-faith conferral
322
What are the requirements of a subpoena?
1) contains the contents required by the federal rules
2) is signed and issued by the court clerk OR an attorney authorized to practice law in the court where the action is pending AND
3) is properly served
323
When a party violates discovery, who can the court sanction?
the party, the attorney, or both
324
Can a district court's order to remand a case to state court be appealed?
Typically NO because Congress has explicitly forbidden these appeals to expedite litigation and avoid drawn-out removal disputes
325
A writer sued the publisher in state court for breach of contract. The writer and publisher disputed the right royalty percentage. The jury returned a verdict in favor of the writer. A year later, at the end of the second contract, the same dispute arose. The writer sued for breach of contract. The publisher has asserted the defense of claim preclusion (res judicata) in it answer. Is the federal court likely to give preclusive effect to the state court judgment?
No, because the second action involves a different claim. Although arising from the same contractual provision, this second claim did not rise from the same transaction and therefore could not have been raised in the earlier litigation
326
What law governs in relation back questions when a court has in diversity jurisdiction?
federal law because this is debatable if this is procedural or substantive and federal law directly addresses the issue
327
An investor loses a case. 4 years later, it is revealed that the D had bribed the judge in the investor's case. What is the best way for the investor to seek relief from the judgment?
move to set aside the judgment for fraud on the court
328
When can a D move for relief from a void judgment?
The only time a judgment is void is when the court lacked SMJ or violated DP by failing to give notice or an opportunity to be hears
329
What are the grounds to alter/amend a judgment?
within 28 days after the judgment is entered, a party can move to alter/amend a judgment when:
- the judgment is based on a manifest error of law or fact
- it is necessary to prevent manifest injustice
- new evidence has been discovered
- an intervening change in the controlling law has occurred
330
How long does a defendant have to serve an answer?
a defendant has 21 days after being served with the complaint and summons to serve an answer, unless an exception applies
[when you're 21 you have to answer for your dumb choices]
331
What is the order of pleadings?
[CAR]
complaint
answer
reply
332
In a federal diversity action, which law governs service-of-process rules?
the general Erie principle applies so, because this is a procedural issue, federal law governs
333
When must the parties hold an initial conference to plan for discovery?
As soon as practicable and at least 21 days before a scheduling conference with the court is held or the judge's scheduling order is due
334
How long does a party have to secure a jury trial?
14 days after the last pleading directed to the issue is served
335
The defendant declined to enter into a contract to sell her house for $200,000 to the plaintiff. The next day, the defendant executed a contract to sell her house to another individual for $201,000. The plaintiff sued the defendant in the appropriate federal court and claimed that the defendant’s decision was based on the plaintiff’s ethnicity and thus violated a federal statute. The court granted summary judgment for the defendant. The plaintiff then sued in the same federal court, claiming that the defendant’s decision was based on the plaintiff’s disability, in violation of another federal statute. Can the plaintiff pursue this action if challenged by the defendant?
No, because the claim of disability discrimination was precluded, as it arose out of the same transaction as the prior claim of discrimination based on ethnicity.
336
When must expert testimony be disclosed?
90 days before trial.
+If a party fails to disclose in time, the party will not be allowed to use the document or witness. However, the witness or document CAN be used if the nondisclosure was substantially justified or was harmless
337
When can a P dismiss an action without court approval or the approval of the other party?
before the opposing party serves either an answer or a motion for summary judgment
338
What is the rule on inconsistent pleading/defenses?
It is permitted to use alternative and even inconsistent pleading/defenses
339
What is required in a party's initial diclosures?
- name, address, telephone number of each individual likely to have discoverable information
- copy or description of all documents, ESI, and tangible things that the disclosing party has in its possession
- any insurance agreement that would cause a 3rd party to be liable for a judgment
340
Although most non-final (interlocutory) orders cannot be appealed, orders concerning injunctions are appealable immediately as of right.
o
341
when a plaintiff allegedly injured by an insured party brings a direct action against the liability insurer, where is the liability insurer's citizenship?
- place of incorporation
- principal place of business
- AND the state or foreign country in which the insured is a citizen
342
A citizen (citizen of a foreign country, but a permanent resident of state A) sues a D who is a citizen of state A and the AIC is satisfied. Is there SMJ
No. DJ is absent because the foreign citizen and the D are both domiciled in state A.
343
Most defenses are waived if they are not asserted in the D's answer. What are the exceptions?
A D has until the end of trial to assert the defenses of:
- failure to join a required party
- failure to state a claim on which relief can be granted
344
A part files for summary judgment after including affidavits disputing the allegations. The nonmovant's brief opposing the motion relied solely on the allegations of the complaint. Should the court grant the summary judgment motion?
Yes, the nonmovant cannot defeat a motion for summary judgment by relying on allegations in the pleadings
345
What type of service is required to serve individuals and organizations in foreign countries?
any internationally agreed method of service that is reasonably calculated to give notice. If there is no internationally agreed means of service, then the P can use mail
346
When party A demands a jury trial on specific issues, party B may serve a jury trial demand for any other triable jury issues within how many days?
14 days after service of the original jury trial demand (or shorter if demanded by the court)
347
Tag jurisdiction exists when the D is served with process while voluntarily present in the forum state. What are the exceptions to this?
- fraudulently or forcefully bringing the D into the forum state
- the D is present in the forum state to attend an unrelated judicial proceeding
348
Federal courts can subpoena US citizens in a foreign country when their testimony is necessary in the interest of justice and impractical to obtain by other means. What are the requirements for a subpoena to be valid?
- method of service is allowed by the federal rules AND
| - the citizen's attendance and travel expenses are paid
349
To obtain a default judgment against a D who has appeared before the court, what must be done?
the P mut serve the D with written notice of the default judgment application at least 7 days before a hearing on the matter
350
When is permissive intervention allowed?
when the nonparty's claim or defense shares a common question with the main action
Ex: A mail clerk falls and injures himself and his company computer. The mail clerk sues the building owner. The company can permissively intervene because the damage to the computer shares a common question of law or fact with the clerk's action
351
What is the standard applied by a court in deciding a JMOL or renewed JMOL?
whether there is Legally Sufficient Evidence in the record to support a verdict for the nonmovant
[remember Let's See...Enough]
352
When can state courts refuse to hear federal-law claims?
Only:
- when Congress expressly grants federal courts exclusive jurisdiction OR
- a neutral state rule prohibits the state court from hearing the case
+Ordinarily, state courts MUST hear federal claims
353
What is an appellate court likely to do when a TC ruled for summary judgment on the basis of the P's credibility?
the AC is likely to reverse the TC's grant of summary judgment because it impermissibly ignored a genuine dispute of material fact that should have been decided by the fact finder
354
A woman contracted with an art dealer who failed to deliver the art. She sued in State A. The art dealer has no connections with state A except the art is stored in state A. Is there PJ in state A over the art dealer?
Yes, PJ exists here.
355
What is the difference between a supplemental pleading and amended pleading?
Amended pleading is for a claim that arose BEFORE the pleading to be admitted was filed
A supplemental pleading is used to set forth a claim that arose AFTER the pleading to be supplemented was filed
356
In federal court, the P had the burden of proving that the D received notice. The P relied on the presumption of receipt by offering that the notice was addressed to the D, properly stamped, and mailed. The defendant then testified that she never received the notice. What is the situation?
The jury MAY find that the notice was received. Under the bursting bubble approach, the bubble burst when the D testified that she never received the notice. Therefore, the jury may find that the notice was received
357
How long does a party have to respond to a request for production?
If the request is BEFORE the initial planning conference, then the response is due within 30 days of the conference.
If the request is AFTER the conference, then the response is due within 30 days after the request is served.
358
Most final judgments are automatically stayed for 30 days unless the court orders otherwise. Where does this presumption not apply?
The following can be enforced and executed immediately
- granting an injunction or receivership
- directing an accounting in a patent-infringement action
359
What are the PJ and venue requirements of statutory interpleader?
- PJ exists over any claimant who is served with process anywhere within the US
- Venue is proper in any judicial district where any claimant resides
360
What does FRE 501 say?
in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.
361
The defendant filed an answer in May. In June the D filed a discovery motion and then against in July. When must the trial demand be made?
14 days after service of the last pleading directed to the issue that is sought to be tried by the jury. Discovery motions are not pleadings, so it should have been 14 days after the May answer
362
What is required by FRCP 51?
the court:
- may instruct the jury at any time before the jury is discharged
- must inform the parties of its proposed instructions before it instructs the jury and closing arguments
- must give the parties an opportunity to object on the record and outside the presence of the jury before the instructions and closing arguments are delivered to the jury
363
A party that fails to admit a matter later proven true must generally pay the reasonable expenses incurred in making that proof
Ex: Request to admit that medication is harmful. Doctor denies. A jury later finds that it is harmful. Sanctions against the doctor are permitted
364
What can the opposing party do, in a civil case, when the other party invokes their 5th A privilege against self-incrimination?
the opposing party may ask jury to draw adverse inference from witness's claim of privilege. This can ONLY happen in civil cases
365
When are discovery requests (e.g., depositions, interrogatories, requests for production/admission, exams) allowed?
Discovery requests generally cannot be served until the parties have held an initial planning conference
366
A party may challenge on appeal the sufficiency of the evidence supporting the jury's verdict if that party...
1) moved for judgment as a matter of law (JMOL) before the case was submitted to the jury AND
2) renewed its motion for JMOL within 28 days after the entry of judgment
367
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.
o
368
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.
o
369
A court sanctions a lawyer for violation of FRCP 11(b). The lawyer appeals. What is the standard the appellate court will apply?
This was a district court's discretionary ruling so ABUSE-OF-DISCRETION will apply
370
When can a court consider an objection to a jury instruction that is made after the instruction was given to the jury?
ONLY if the instruction constituted plain error (i.e., an obvious error that affected a substantial right and the fairness of judicial proceedings)
371
How long does a party have to file a motion to remand?
30 days after the notice of removal was filed
[remember remand and thirty have the same letters
372
In federal courts, when is privilege governed by state or federal law?
- state law governs privilege in diversity cases
| - federal law governs privilege in all other cases
373
When may a party move for judgment on the pleadings?
once the pleadings have closed
Ex: If a party files a counterclaim, crossclaim, or third party claim then there can be no motion for judgment on the pleadings until an answer to these claims is made
374
A man domiciled in state B dies. Under his will, he devised his cabin located in state A to a nephew. Which state's law will govern?
State A. When there is a conflict-of-laws issue involving real property, the general rule is that the applicable law should be determined by the conflict-of-law rules of the state where the property is located
375
At the final pretrial conference, a federal court judge will issue a final pretrial order that sets forth a plan for trial. The court may modify this order only...
to prevent manifest injustice
[parties must investigate]
376
What is the usual rule of thumb for when a class is so numerous that joining all the members as named plaintiffs is impracticable (numerosity)?
If there are 40 or more members, numerosity is met
377
What is the general rule regarding personal jurisdiction in an in rem action (e.g., civil forfeiture action)?
A court almost always has personal jurisdiction. Minimum contacts exist because in rem actions relates to property in the forum state
