Civil Procedure

Question 1

Subject Matter Jurisdiction (SMJ)

Answer 1

A federal court MUST have SMJ in order to decide cases before it. A federal court has subject matter jurisidiction either through Federal Question Jurisdiction OR **Diversity Jurisdiction. ** A Federal Court cannot hear a case that does not meet on these requirements.

Question 2

Federal Question Jurisdiction (SMJ)

Answer 2

A Federal Court will have Federal Question Jurisdiction if the complaint alleges a claim that arises under federal law.

Question 3

Well-Pleaded Complaint Rule (FQ SMJ)

Answer 3

The federal question MUST be presented on the fase of the plaintiff’s complaint. Raising a DEFENSE or filing a COUNTERCLAIM under federal law **DOES NOT TRIGGER FEDERAL QUESTION JURISDICTION. **

Question 4

Diversity Jurisdiction (SMJ)

Answer 4

A federal case has SMJ if there is Complete Diversity and the Amount in Controversy (AIC) exceeds $75,000.00.

A federal court will NEVER have diversity jurisdiction over probate or domestic relation matters

Question 5

Complete Diversity (Diversity Jurisdiciton)

Answer 5

Complete Diversity is present – every Citizenship represented on the plaintiff’s side of the complaint must be different than every Citizenship represented on the defendant’s side of the case.
NOTE: ALSO NEED TO MEET AIC REQ.

Question 6

Amount in Controversey (AIC) Requirement

Answer 6

The amount-in-controversy must exceed $75,000.00 ($75,000.01>).
1. A claim for injunctive relief can be valued by the benefit to the plaintiff or the cost of compliance to the defendant.
2. One plaintiff can aggregate all their claims against one defendant to meet the AIC requirement. One plaintiff can also aggregate all of their claims against multiple defendants IF the defendants are jointly liable.
3. If there are multiple plaintiffs, generally, each plaintiff’s claim must meet the AIC requirement seperately (unless supplemental jurisdiction applies)

Question 7

Citizenship (diversity jurisdiction SMJ)

Answer 7

The Citizenship of each party to the action must be determined in order to decide if there is** complete diversity.** The rules for determining citizenship vary depending on the types of parties involved.

Question 8

Citizenship of Individuals

Answer 8

For individuals, citizenship will be determined by the individuals state or country of Domicile.

Question 9

Citizenship of Corporations

Answer 9

Corporations hold dual citizenship for diversity purposes.
1. The State or Country of incorporation; AND
2. The State or Country of its principal place of business (i.e., the “Nerve Center” – usually where corporate headquarters are located.)

Question 10

Domicile (Diversity Jurisdiction)

Answer 10

The place of residence where the** individual intends to remain indefinitely**. Can only have one domicile at a time (individuals).

Question 11

Domicile of Class Actions/Unincorpated Associations

Answer 11

Citizenship in class actions is based on the named parties in the class who are suing. Class members who are not named may join without regard to citizenship.

An unincorporated association or partnership is a citizen of every state of which its members are citizens.

Question 12

Supplemental Jurisdiction

Answer 12

Supplemental Jurisdiction allows a federal court with valid SMJ over a case to hear additional claims which the court wouldNOT independently have jurisdiction over if ALL the claims constitute the “Same case or controversy”.

Question 13

Same case or controversy (Supplemental JDX)

Answer 13

Claims constitute the “same case or controversy” if they arise out of a common nucleus of operative fact (meaning all the claims arise out of the same transaction or occurrence.)

Question 14

Federal Question Case Supplemental JDX (Pendant Claims)

Answer 14

A federal court sitting in Federal Question JDX may hear a pendant state law claim under supplemental jurisdiction if the state law claim arises out of the same transaction or occurrence as the **federal **law claim.

Question 15

Supplemental JDX in Compulsory Counterclaims

Answer 15

A compulsory counterclaim is a counterclaim (usually the Defendant countersuing the plaintiff) that arises out of the same transaction or occurrence as the original claim filed. A federal court sitting in diversity jurisdiction has supplemental jurisdiction over a compulsory counterclaim.

Question 16

Supplemental JDX in Permissive Counterclaims

Answer 16

A permissive counterclaim is a counterclaim that does NOT arise out of the same transaction or occurrence as the original claim filed. A permissive counterclaim can only be heard if it independently satisfies diveristy jurisdiction (e.g. complete diversity is present + amount in controversy exceeds $75,000.00).

Question 17

Supplemental Jurisdiction in Cross-Claims

Answer 17

A cross claim is a claim filed by a plaintiff against another plaintiff or a defendant against a co-defendant. A federal court sitting in diversity jurisdiction has supplemental jurisdiction over a cross-claim if the cross claim arises out of the same transaction or occurrence as the original claim.

Question 18

Removal

Answer 18

Removal allows the defendant to move a case from state court to federal court IF the case could have been brought originally in federal court. Removal MUST be sought:
1. By the Defendant; AND
2. Within 30 Days of learning the grounds for removal
3. But NEVER beyond 1 year after the** commencement of the action**, unless the plaintiff acted in bad faith to try and make the case non-removable

Question 19

Grounds for Removal in Federal Question Cases

Answer 19

Defendant in a FQ case may remove the case to federal court if the well-pleaded complaint discloses that the claim is based on federal law.

Question 20

Grounds for Removal in Diversity Cases

Answer 20

Defendant may remove the case to federal court if:
1. Complete Diversity is present.
2. The amount in controversy exceeds $75,000.; AND
3. The action is brought in a state in which no defendant is a citizen (Defendant can’t remove to their home state)

Question 21

Personal Jurisdiction

Answer 21

A court MUST have personal jurisdiction in order to adjudicate the rights and liabilities of a defendant. If any of the four “traditional bases” are satisfied, the court will have personal jurisdiction over the defendant.

Question 22

Four Bases for Personal Jurisdiciton (Domicile, Waiver, Phyiscal Presence, Consent)

Answer 22

1. Domicile: Domicile will be satisfied if the Defendant is domiciled in the forum state. If the Defendant is a corporation, must be “at home” in the forum state (e.g. state of incorporation + principal place of business).
2. Phyiscal Presence: Service of process on the defendant while he is physically present in the forum state will satisfy this base UNLESS the Defendant was in the state only to answer a summons or was brought there by force or fraud.
3. Consent: Out of state Defendant may consent to personal jurisdiction (can be express or implied by conduct).
4. Waiver: Unlike subject-matter jurisdiction, lack of personal jurisdiction can be waived by the defendant. A defendant waives any objection by substantial participation on the merits before raising the objection (e.g. making a general appearance).

Question 23

State Long-Arm Statutes (when 4 bases aren’t present)

Answer 23

A state-long-arm statute allows a court to exercise personal jurisdiction over an out of state defendant Where no traditional base applies. Constitutionally, this requires that Minimum Contacts exist between the defendant and the forum state.

Question 24

Minimum Contacts Requirements

Answer 24

Sufficient **Minimum Contacts **exist when:
1. General or Specific Jurisdiction is present.
2. The exercise of such jurisdiction does NOT offend traditional notions of fair play and substantial justice – Courts examine the following factors to determine fairness of the forum jurisidiction in regard to the Defendant.
(a) Convenience for the Defendant;
(b) Whether the forum state has a legitimate interest in providing redress;
(c) Whether the Plaintiff’s Interest in obtaining relief is proper;
(d) The interstate judicial system’s interest in efficiency; AND
(e) The shared interest of the several states in furthering social policies

Question 25

**General Jurisdiction (Minimum Contacts)**

Answer 25

**General Jurisdiction** is present when the Defendant is essentially **"at home"** in the forum state (i.e, domicile or principal place of business/state of INC.). When general jurisidction is present, the Defendant can be sued on **any** claim (even if the claim is unrelated to the defendant's contact with the forum state.)

Question 26

**Specific Jurisdiction**

Answer 26

**Specific Jurisdiction** gives courts jurisdiction over out-of state defendant's for the defendant's specific contact with forum state. The claim **MUST** arise out fo the defendant's specific contact with the forum state. Specific Jurisdiction is present if: 1. The Defendant **purposely availed** himself of the benefits of the forum state (e.g., using state highways); **AND** 2. The Defendant **knew or reasonably should have anticipated** that his activities in the forum state made it **foreseeable** that he may be "**haled into court"** there.

Question 27

Stream of Commerce Cases (Specific Jurisdiction)

Answer 27

Generally, there will be specific jurisdiction over a defendant if the defendant: (1) Places a product in the stream of commerce **in the forum state**; **AND** (2) Commits some other act to show **intent to serve the forum state**.

Question 28

Internet Stream-of-Commerce Cases (Specific Jurisdiction)

Answer 28

Generally, internet caes involve either passive or active websites. (1)**Passive Websites:** a passive website is a website used for information purposes rather than online sales and commerce. Generally, the maintenance of a passive website without more activity in the forum, is insufficient for general jurisdiction. (2)**Active Websites:** An active website is a website that is used for online commerce to make sales. The maintence of an active website may be sufficient for general jurisdiction if the defendant is conducting significant business such that the defendant is **at home in the forum.**

Question 29

**Service of Process**

Answer 29

A civil action is commenced by filing a complaint with the court. After the plaintiff files a complaint, a summons **MUST** be served on the defedant with a copy of the complaint. The plaintiff is responsible for having the summons and complaint served within **90 days** after the complaint is filed with the court. Any person **who is at least 18 years old** and **NOT a Party to the action** can serve the summons and complaint.

Question 30

**Service on a person within the United States**

Answer 30

An **individual within a judicial district of the United States** may be served by: 1. Delivering a copy of the summons and complaint to the individual personally; 2. Leaving a copy at each of the individual's dwelling or usual place of abode with someone of suitable age and discretion who resdies there; **OR** 3. Delivering a copy of each to an agent authorized by appointment or by law to recieve service of process

Question 31

**Service on an individual in a foreign country**

Answer 31

Unless prohibited by that country's law, an **individual in a foreign country** may be served by: 1. Delivering a copy of the summons and complaint to the individual personally; 2. Using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; **OR** 3. Other means not prohibited by international agreement, as the court orders.

Question 32

**Service on a corporation, partnership, or association**

Answer 32

**Service on a corporation, partnership, or association** may be made by delivering a copy of the summons and complaint to an officer, managing or general agent, or any other agent authorized by law to receive service of process.

Question 33

**Venue**

Answer 33

Venue determines the **judicial district** in which a lawsuit may be filed or commenced. Venue is proper in a judicial district where: 1. **ANY defendant *resides*** IF all the **defendants *reside*** in the **same state.**; 2. A **substanital** part of the events or omissions, giving rise to the claim occurred, or a **substantial** part of property that is the subject of the action is located.; OR 3. If there is **NO** district anywhere in the United States that satisfies (1) or (2); a judicial district in which **ANY** Defendant is subject to personal jurisdiction

Question 34

Residence (Venue)

Answer 34

For venue purposes, the rules governing the defendant's residence vary depending on the type of party involved. 1. **Individuals:**An individual is deemed to reside in the judicial district where he is domiciled. 2. **Business Entitites:**A business entity is deemed to reside in any judicial district where the entity is subject to personal jurisdiction with respect to the action in question. 3. **Foreign Defendants:** A defendant who is NOT a resident of the united states, whether a citizen or alien, may be sued in **ANY** Judicial district.

Question 35

**Proper Venue Transfer**

Answer 35

If venue is proper, the court may nonetheless transfer the case for the convenience of the parties or witnesses to any court where the case **could have been originally filed** (i.e., the transferee court must have valid SMJ + personal jurisdiction over the defendant + proper venue).

Question 36

Improper Venue

Answer 36

If the venue is improper, the Court **MUST:** 1. Dismiss the case; **OR** 2. Transfer the case to a venue in which the **case could have originally been filed** (i.e. the transferee court must have valid SMJ + personal jurisdiction over the defendant + proper venue).

Question 37

**Choice of Law (Proper Original Venue)**

Answer 37

if a court transfers a case to another venue, the law that transferee court must apply depends on whether the original venue was proper and the type of case involved. 1. **Proper Original Venue**: * **Diversity cases:** In a diversity case, the transferee court must apply the law that would have been applied in the district court that transferred the case. * **Federal Question Case:**In a federal question case the court must apply the federal law as interpreted by its own federal court of appeals.

Question 38

**Choice of Law (Improper original venue)**

Answer 38

If the transferor court had improper venue: **(A) Diversity Cases:** In a diversity case, the transferee court must apply the choice-of-law rules of the state in which it is located, as opposed to the state law of the district court that transferred the case. **(B) Federal Question Cases:** In a federal question case, the transferee court must apply the federal law as interpreted by its own federal court of appeals.

Question 39

**Abstention**

Answer 39

Generally, a federal court with valid SMJ is required to adjudicate controversies before it. However, a federal court may **abstain** from hearing a case or **stay the matter pending the outcome of a state court action in order to avoid intruding upon the powers of a state court.**

Question 40

**Preliminary Injunctions**

Answer 40

A preliminary injunction preserves the **status quo** of the parties until a final judgment on the merits can be reached. There are two types of preliminary injunction: (1) **Prohibitory Injunction:** A prohibitory injunction prohibits or restrains a party from engaging in specified behavior. (2) **Mandatory Injunction:** A mandatory injunction requires the defendant to engage in an affirmative act. Courts are more reluctant to grant mandatory injunctions than prohibitory injunctions.

Question 41

**Required Contents of an injunction**

Answer 41

Every order granting an injunction must: (1) State the reasons as to why it was issued (2) State its terms specifically; **AND** (3) Describe in reasonable detail the act or acts restrianed or required

Question 42

**Plaintiff Required Showings for Granting of Injunction**

Answer 42

A plaintiff seeking a preliminary injunction must establish that: (1) She is likely to suffer **irreperable harm** if the preliminary injunction is not issued; (2) She is likely to suffer **greater harm** than the defendant will if the preliminary injunction is not issued (3) She is likely to **succeed on the merits**; AND (4) Granting the injunction is **in the best interest of the public**

Question 43

**Required Notice for Injunction**

Answer 43

The non-moving party **MUST** be given** notice** and an opportunity to oppose the preliminary injunction at a hearing before the court.

Question 44

Temporary Restraining Orders (TROs)

Answer 44

A TRO preserves the **status quo** of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction. A TRO may **NOT** last longer than **14 days** unless good cause exists or the non-moving party consents.

Question 45

**Mandatory Contents of a TRO**

Answer 45

Every order granting a TRO must: (1) State the Reason why it was issued; (2) State its terms specifically; **AND** (3) Describe in reasonable detail the act or acts restrained or required.

Question 46

Requirements of a TRO

Answer 46

A plaintiff seeking a TRO must establish that: (1) She is likely to suffer **irreperable harm** if the TRO is not issued. (2) She is likely to suffer **greater harm** than the defendant will if the TRO is not issued; (3) She is likely to **succeed on the merits**; AND (4) The TRO is in the **best interest of the public.**

Question 47

**Ex-Parte Notice**

Answer 47

Unlike a preliminary injunction, the court may issue a TRO **without** written or oral notice to the non-moving party **ONLY If:** (1) Specific facts in an affadavit or a verified complaint clearly show that **immediate and irreperable harm** will result to the movant before the non-moving can be heard in opposition; AND (2) The movant's attorney certifies **in writing** any efforts made to give notice to the non-moving party and the reasons why it should not be required.

Question 48

**The Complaint**

Answer 48

The Complaint is the **first pleading** filed by the plaintiff -- it commences the action. A complaint **MUST** state: (1) Grounds for subject matter jurisdiction; (2) A short statemetn of the claim that shows the pleader is entitled to relief; **AND** (3) A demand for judgment for relief.

Question 49

**Pre-Answer Motion**

Answer 49

After the complaint is filed, the Defendant may file a **Pre-Answer Motion** or respond with an **Answer.**

Question 50

**Defenses raisable in a Pre-Answer Motion**

Answer 50

The defendant's pre-answer motion may raise any or all of the following defenses: 1. Lack of subject-matter jurisdiction; 2. Lack of personal jurisdiction; 3. Improper venue; 4. Insufficiciency of Process; 5. Insufficiency of Service of Process; 6. Failure to state a claim upon which relief can be granted; AND/OR; 7. Failure to join an indispensible party under compulsory joinder.

Question 51

**Contents of the Answer**

Answer 51

The Answer **MUST** state: (1) a specific denial or admission of each allegation in the complaint OR a general denial of all allegation with specific admission if necessary; **AND** * NOTE: a failure to deny an allegation constitutes an admission. (2) **Any affirmative defenses** that the respondent has, or is that defense is deemed **waived.**

Question 52

**Timing of the Answer**

Answer 52

The timng of the answer depends on whether a pre-answer motion is made: (1) If no pre-answer motion is made. a defendant who is formally served must present an answer within **21 days** after service. (2) if a pre-answer motion is made, the responsive pleading must be served within **14 days** after the court's denial or postponement of the motion

Question 53

**Relation Back for a NEW PARTY**

Answer 53

If a pleading is amended to add a **new party or change the name of a party** the amendment will relate back to the date of the original pleading if: (a) It asserts a claim that **arose out of the same transaction **or **occurrence** set out in the original pleading; (b) the party to be brought in by amendment receives notice of the action within **90 days** after the filing of the original complaint such that he will not be prejudiced by defending his case on the merits; **AND** (c) The party to be brought in by amendment **knew or should have known** that the action would have been brought against him, but for a mistake concerning the proper party's identity.

Question 53

Amending a Pleading by Right

Answer 53

A party may amend a pleading once by as of right within **21 days** if no responsive pleading is required. If a responsive pleading is required, the party may amend within** 21 days** of whichever event is **earlier: ** (a) The service of the responsive pleading (b) Being served with a rule 12(b) motion

Question 53

**Compulsory Joinder of Parties**

Answer 53

A Plaintiff **MUST** join an absent party or face dissmial of his lawsuit when: (1) The court has personal jurisdiction over the absentee (2) The absentee's presence would not destroy subject matter jurisdiction or venue; **AND** (3) Either: (a) Complete relief cannot be accorded among the other parties to the action without the absentee party; **OR** (b) The absentee has such an interest in the action that a decision in his absence will impede his ability to protect the interest or leace any of the other parties subject to a substantial risk of incurring multiple or inconsistent obligations.

Question 53

Amending a pleading by **Leave of the Court**

Answer 53

The court can permit an amendment to a pleading when **justice so requires**. Generally, a court will permit a proposed amendment if the proposed amendment: (a) is not subject to dismissal under Rule 12(b); **AND** (b) Would **NOT** result in **undue prejudice** to the opposing party.

Question 53

**Relation Back for a NEW CLAIM**

Answer 53

If the pleading is amended to include a **new claim or defense** the amendment will relate back to the date of the original pleading if the new claim or defense arose out of the **same transaction or occurrence** set out in the original pleading.

Question 54

**Interpleader**

Answer 54

**Interpleader** allows a plaintiff or defendant to initiate a lawsuit in order to compel two or more parties to litigate a dispute. **Interpleader by a Plaintiff:** Persons with claims that may expose a plaintiff to **double or multiple liability** may be joined as defendants and required to interplead. Joinder for interpleader is proper even though: (1) The claims of the several claimants, or titles on which their claims depend, lack a common origin or are adverse and independant rather than identical. (2) The plaintiff denies liability in whole or in part to any or all claimants. **Interpleader by a Defendant:** A defendant exposed to **similar liability** may seek interpleader through a cross-claim or counterclaim.

Question 54

**Intervention**

Answer 54

**Interventon** permits a **nonparty** to intervene in an action. Intervention may be granted to a **party as of right OR permissively** **(1) Intervention as of right: **Intervention is available as of right when the applicant claims an interest in the property or transaction that is the subject matter of the action, **AND**the disposition of the action without them may impair their ability to protect that interest. **Permissive Intervention:** Intervention is permissive when the applicant's claim or defense and the main action have a question of law or fact in common. Permissive intervention must be supported by its own jurisdictional grounds and is discretionary with the court.

Question 54

**Relation Back Doctrine (Amendment to Pleading)**

Answer 54

The **Relation Back Doctrine** determines whether an amendment to a pleading will relate back to the date of the original pleading. This is important for statute of limitations purposes.

Question 54

**Permissive Joinder**

Answer 54

The Parties **MAY** join as plaintiffs or be joined as defendants when: (1) Some claim is made by each plaintiff and against each defendant that arises out of the same transactions or occurrences; AND (2) There is a question of fact or law common to all parties

Question 55

**Class Actions**

Answer 55

**Class Action** is a type of suit where one of the parties is a group of people who are represented collectively by a member or members of that group (called "named parties"). A class action must be **proper** and **certified**.

Question 56

**Requirements for a Class Action to be Proper**

Answer 56

**A class action is proper if:** 1. The class is **so** **numerous** that joinder of all the members is impracticable; 2. There are **questions or law or fact** common to the class; 3. **Named parties' interests are typical** of the class; **AND** 4. Named parties will **adequately represent** the interests of the absent members of the class.

Question 57

**Requirements for a class action to be Certified**

Answer 57

**A class action that is proper will be *certified* IF:** 1. Seperate actions would create a **risk of inconsistent results or impair the interests of unnamed parties** 2. The defendant has acted or refused to act on grounds applicable to the whole class and **injunctive or declaratory relief is appropriate** for the class as a whole; **OR** 3. **Common questions of law or fact predominate ** over individual issues and a **class actionis superior to alternative methods of adjudication**

Question 58

**Rule 26(f) Pretrial Conference** | Discovery

Answer 58

**Under Rule 26(f) of the FRCP:** The parties must confer as soon as it is practicable to: (1) consider their claims and defenses, the possibility of settlement, initial disclosures (see below), and a settlement plan; **AND** (2) submit to the court a proposed discovery plan addressing the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required by the court. **NOTE:** Additional Pretrial Conferences may be held to **expedite the trial** and **foster settlement**

Question 59

**Initial Disclosures**

Answer 59

Each party to an action **MUST** make certain **initial disclosures,** even if an opposing party did not ask for such information, within **14 days** of the 26(f) conference. These disclosures include: names etc. of individuals likely to have discoverable information that the opposing party may use to support its claims or defenses, **UNLESS** the use would be solely for impeachment. Also, copies or descriptions of documents, ESI, and tangible things for same purposes. ALSO: **Computation of damages** and materials upon which computation is **based**; AND copies of **insurance agreements** under which an insurer **might** be liable for all or any part of a judgment that might be entered.

Question 60

**Depositions**

Answer 60

**Depositions.**A party may take the deposition of any party or nonparty witness (with a subpeona) at any time after the party has made its intitial disclosures. Without leave of the court, the plaintiff's and defendants, each as a group, are limited to **ten depositions by oral or written examination.** An oral deposition is limited to **one day of 7 hours**, unless the parties agree otherwise or the court orders otherwise. **Notice.** A party who seeks an oral deposition of a person must give reasonable written notice to every other party, stating the time and place of the deposition and, if known, the deponent's name and address.

Question 60

**Limitations on Discovery**

Answer 60

On Motion or on its own, the court is required to limit the frequency or extent of discovery if the court determines that: (1) the discovery sought is unreasonably cumulative or can be obtained from some other source that is **more convenient** or **less expensive**; **OR** (2) the party seeking discovery had ample opportunity to obtain the information by discovery in the action

Question 60

**Duty to Preserve Relevant Information**

Answer 60

When it can be **reasonably anticipated** that an action will be filed, all parties have a duty to preserve **potentially relevant** evidence. The term "evidence" includes all information, including not just hard copy documents, but all electronically stored information on any medium and in any electronic format.

Question 60

**Interrogatories**

Answer 60

**Availability.** Any party may serve **no more** than** 25 interrogatories** on any other party. Interrogatories may **NOT** be used on nonparties. **Scope.**Interrogatories may relate to any non-privileged matter that is: (1) **Relevant**to any party's claim or defense in the action; **AND** (2) **Proportional** to the needs of the case **Answers and Objections:** Interrogatories must be answered fully and seperately under oath by the party to whom they are directed, unless the responding party objects by stating the specific grounds for the objection. The responding party must serve it's answers and any objections within **30 days** of being served with the interrogatories.

Question 60

**Scope of Discoverable Information**

Answer 60

Generally, discovery is permitted with regard to **any non-privileged** matter that is: (1) **Relevant** to any party's claim or defense in the action; AND**** (2) **Proportional **to the needs of the case

Question 61

Attorney Work Product Doctrine

Answer 61

The work product doctrine protects materials prepared by an attorney in **anticipation of or during litigation** from discovery by opposing counsel. Such materials will **NOT** be protected from disclosure to opposing counsel **IF:** (1) The materials are **otherwise unavailable**; (2) There is **substantial need for the materials**; AND (3) The materials cannot be obtained without **undue hardship** **However**, a writing reflecting an attorney's impressions, conclusions, opinions, legal research or theories is **NEVER** discoverable. When a party **withholds information** she beleives is privileged or protected by work product doctrine, the party must make the claim expressly and describe the nature of the documents in a manner that will enable other parties to assess the applicability of the privilege or work-product doctrine.

Question 62

**Rule 12(b) Motion To Dismiss**

Answer 62

The following defenses may be raised in a 12(b) Motion to Dismiss: 1. Lack of Subject Matter Jurisdiction (can be raised anytime) 2. Lack of Personal Jurisdiction (waived if not in pre-answer or answer) 3. Improper Venue (Waived if not in pre-answer or answer) 4. Insufficient Process (waived if not in pre-answer or answer) 5. Insufficient Service of Process (waived if not in pre-answer or answer) 6. Failure to State a claim upon which relief can be granted (see card 74) 7. Failure to join an indespensible party under compulsory joinder (can be raised most of the trial)

Question 63

**12b(6) Failure to State a Claim Upon Which Relief Can Be Granted**

Answer 63

This defense may be raised in a pleading, in a motion for judgment on the pleadings, or at trial. **2 Step Analysis** Under Rule 12b6 a claim for relief can be dismissed if either fails to assert a legal theory for recovery that is cognizable or fails to allege facts sufficient to support a cognizable claim. (i) First, the court msut identify and reject legal conclusions unsupported by factual allegations; **THEN** (ii) Second, the court should assume that the well-pleaded factual allegations are true, and drawing on the courts judicial experience and common sense, determine whether the allegations plausibly give rise to entitlement of relief.

Question 64

Motion for Summary Judgment

Answer 64

a) A MSJ can be filed any time until **30 days** after the **close of discovery**. b) a MSJ must be granted if, from the pleadings, affadavits, and discovery materials on file, when **viewing the evidence in the light most favorable to the nonmoving party** it appears that: (1) No **genuine dispute of material fact exists**; AND (2) The moving party is entitled to **judgment as a matter of law**

Question 65

**Motion for Judgment as a Matter of Law (JMOL)** | Trial Motion

Answer 65

A JMOL (formerly, "directed verdict") may be filed by either party after close of the nonmoving party's evidence **OR** at the close of all evidence. The motion for JMOL will be granted if, **when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party**. A JMOL is a prerequisite for the making of a renewed motion for judgment as a matter of law after the trial.

Question 66

**Res Judicata (Claim Preclusion)**

Answer 66

Res Judicata provides that a final judgment on the merits of an action precludes the parties from successful litigation of an identical **CLAIM** in a subsuquent action. To bar a claim under res judicata: (1) The original claim must have resulted in a **valid final judgment on the merits** (2) The original and later-filed causes of action must be **sufficiently identical**(i.e., related to the same transaction or occurrence); **AND** (3) The **Claimant and Defendant must be the same** (and in the same roles) in both the original and later filed action, or **Privity** exists between the parties in the original and later filed action.

Question 66

**Collateral Order Doctrine**

Answer 66

The doctrine of collateral order allows a party to appeal **interlocutory rulings** if the ruling decides a claim or issue that is: 1. **Seperable from and collateral to** the merits of the case; 2. Involves a **serious and unsettled** legal question; **AND** 3. Would be effectively **unreviewable** if the court waited until final judgment to hear the claim or issue.

Question 66

**Mandamus Review**

Answer 66

Under mandamus review, a court of appeals can review an order that is an **abuse of judicial authority** (e.g. orders beyond the trial court's jurisdiction, orders that violate a mandatory duty of the trial court, etc.) such review does NOT extend to all order that constitute an error of law.

Question 66

**Appeal of Interlocutory Order**

Answer 66

An **Interlocutory order** is an order that is provisional, interim, temporary, or non-final (e.g. TROs). Although most interlocutory orders are **NOT** immediately appealable, certain equitable orders are immediately reviewable as a **matter of right**, including: (1) An order granting, modifying, or dissolving an **injunction** (2) An order appointing or refusing to appoint a **receiver**; AND (3) A decree determining the rights and liabilities of the parties to **admiralty cases,** in which appeals from final decrees are allowed.

Question 66

Final Judgment Rule

Answer 66

The federal courts of appeals have jurisdiction over appeals from **final judgments** of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment.

Question 66

**Motion for a New Trial**

Answer 66

The court may, on motion, grant a new trial (on all issues or with respect to only certain issues or parties) for any of the reasons for which new trials have traditionally been granted, such as: (1) an error made at trial that renders the judgment **unfair** (2) **Newly discovered evidence** that existed at the time of the trial was excusably overlooked and would have likely **altered the outcome** of the trial (3) **Prejudicial Misconduct** of counsel, judge, or juror (4) A verdict that is against the **clear weight of the evidence** (5) A verdict that is based on **false evidence** such that a new trial is necessary to **prevent injustice** (6) A verdict that is **excessive or inadequate** if the verdict is exessive, the court may order a new trial or offer the plaintiff **remittur**

Question 66

**Remittur**

Answer 66

When the verdict is exessive, the court can order a new trial or offer the plaintiff **Remittur**, which allows the plaintiff to choose between a lesser award or a new trial. NOTE: "Additur" is never permitted in federal court, the only option is a new trial.

Question 66

Effect of a Default Judgment

Answer 66

A default judgment will have a **preclusive effect** if the court had valid personal and subject matter jurisdiction. States vary to the extent of preclusion a default judgement has, but generally a party is **barred from asserting defenses or compulsory countercliams** that could have been raised in the original action.

Question 67

Renewed Motion for Judgment as a Matter of Law | Post Trial Motion

Answer 67

A renewed motion for JMOL, may be filed no later than **28 days** after the entry of judgment. It may **ONLY** be raised if a JMOL was previosly filed. The motion will be granted if **when viewing the evidence in the light most favorable to the nonmoving party, the court finds that a reasonable jury would not have a legally sufficient basis to find for the nonmoving party**. A party is generally limited to those issues raised in the JMOL.

Question 67

**Collateral Estoppel (Issue Preclusion)**

Answer 67

Collateral estoppel precludes the **re-litigation of issues of fact or law** that have already been necessarily determined by a judge or jury as part of an earlier claim. To bar an issue under collateral estoppel: (1) The issue sought to be precluded must be the **same ** as that involved in the prior action (i.e. the facts relevant to the particular issue and the applicable law must be identical). (2) The issue must have been **actually litigated** in the prior action. (3) The issue must been **determined by a final judgment on the merits**; AND (4) The determination of the issue must have been **essential** to the prior judgment.