Civil Procedure

Question 1

When must a court quash or modify a subpoena?

Answer 1

Subpoenas that: fail to allow a reasonable time to comply, requires person to comply beyond geographical limits, requires disclosure of privileged or protected matter, or subjects person to undue burden.

Question 2

When may a court quash or modify a subpoena?

Answer 2

Subpoenas that require disclosing: unretained expert’s opinion or information that (1) does not describe occurrences in dispute and (2) results from expert’s study not requested by party; trade secret or confidential research, development, or commercial information

Question 3

If a party fails to object at trial, when can a challenged error be reviewed?

Answer 3

It can be reviewed for plain error– obvious error that affected a substantial right and the fairness of judicial proceedings

Question 4

What are the three types of class actions?

Answer 4

(1) Risk of Prejudice: The class is maintainable if the prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or if prosecution of the claims through separate actions would impair the interests of the class members.

(2) Final Equitable Relief: A class seeking final injunctive or declaratory relief may be certified if the class shares a general claim against the opposing party.

(3) Common Legal or Factual Questions: A class can be certified if questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method for bringing about a fair and efficient adjudication of the controversy.

Question 5

When is a default and default judgment entered against a party?

Answer 5

A default occurs when a party has failed to plead or otherwise defend an action, and that failure is shown by affidavit or otherwise; the court clerk must then enter the party’s default.

Once a default is entered against a party, the plaintiff may seek a default judgment from the court clerk (if relief sought is a sum certain or an amount that can be made certain by computation and the defaulting party is not a minor or incompetent) or otherwise apply to the court itself.

Question 6

What seven defenses may be raised in a motion filed under Rule 12(b)?

Answer 6

(i) Lack of subject matter jurisdiction

(ii) Lack of personal jurisdiction;

(iii) Improper venue;

(iv) Insufficient process;

(v) Insufficient service of process;

(vi) Failure to state a claim upon which relief can be granted; and

(vii) Failure to join a necessary or indispensable party under Rule 19.

Question 7

May a single plaintiff aggregate claims against multiple defendants to satisfy the amount-in-controversy requirement?

Answer 7

When a single plaintiff sues multiple defendants, the value of the plaintiff’s claims against each defendant may not be aggregated if the claims are separate and distinct.

If the defendants are jointly liable to the plaintiff, then aggregation to meet the amount-in-controversy requirement is permissible.

Question 8

Under the Erie Doctrine, what law governs in a diversity action?

Answer 8

In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located, if there is no federal law on point. The district court will apply federal procedural law, even if a state rule or statute is in conflict.

Question 9

How many peremptory challenges and challenges for cause does a party have?

Answer 9

Each party in a civil case gets three peremptory challenges. Each party is entitled to an unlimited number of challenges for cause.

Question 10

How is a corporation’s “principal place of business” determined?

Answer 10

“Principal place of business” refers to the “nerve center” of the corporation. The nerve center is generally the location from which the high-level officers direct, control, and coordinate the activities of the corporation. Typically, the nerve center is the corporate headquarters.

Question 11

What is an impleader?

Answer 11

An impleader (third-party claim) are claims that are made by a defending party against a nonparty for all or part of the defending party’s liability on an original claim.

Question 12

When must an objection to improper venue be raised?

Answer 12

An objection to improper venue must be raised in a pre-answer motion to dismiss under Rule 12(b)(3) or in the first responsive pleading, if a motion under Rule 12(b)(3) is not filed.

Question 13

Generally, where is venue proper?

Answer 13

(i) A judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or

(ii) A judicial district in which a “substantial part of the events or omissions” on which the claim is based occurred, or where a “substantial part of the property” that is the subject of the action is located.

Question 14

When and how is the amount in controversy determined for diversity jurisdiction purposes?

Answer 14

The amount in controversy must exceed $75,000, exclusive of interest, costs, and collateral effects of a judgment. The amount in controversy is determined at the time the action is commenced in federal court, or, if the action has been removed to federal court, at the time of the removal.

Note: Attorney’s fees may be included in the calculation if recoverable by contract or statute, and punitive damages may possibly be included as well.

Question 15

How much time does a party have to respond to interrogatories?

Answer 15

The responding party must serve its answers and any objections within 30 days after being served with the interrogatories.

Note: The court may order or the parties may stipulate to a shorter or longer time.

Question 16

For purposes of venue, where does a defendant business entity reside?

Answer 16

A business entity is deemed to reside in any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question.

Note: If the entity is a plaintiff, then it is deemed to reside only in the judicial district in which it maintains its principal place of business.

Question 17

When a case is removable from the outset, how does a defendant begin the process for removal?

Answer 17

A defendant who wants to remove a state court action to federal district court generally must file a notice of removal with the district court within 30 days after receipt or service of the initial pleading or summons.

Question 18

When the relief sought is an injunction, how is the amount in controversy determined for jurisdiction purposes?

Answer 18

In the case of injunctive relief, when it is difficult to assess a dollar amount, some courts consider only the value of the injunction to the plaintiff in determining the amount in controversy and other courts consider the greater of the value to the plaintiff of the removal of the harm or the cost to the defendant of complying with the injunction in determining the amount in controversy.

Question 19

How may an individual within the U.S. be served?

Answer 19

Service may be made within the state in which the federal district court sits by:

(i) Personally serving the summons and complaint on the defendant;

(ii) Leaving the summons and complaint at the defendant’s usual place of abode with a person of suitable age and discretion who resides there; or

(iii) Delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service.

Question 20

When may a party file a renewed motion for judgment as a matter of law?

Answer 20

The movant may file a renewed motion for judgment as a matter of law no later than 28 days after the entry of judgment. If the motion addresses a jury issue not decided by a verdict, then the renewed motion must be filed no later than 28 days after the jury was discharged.

Question 21

When can a party amend a pleading?

Answer 21

Under Rule 15(a), a party may amend a pleading:

(i) Once as of right within 21 days if no responsive pleading is required; or

(ii) If a responsive pleading is required, within 21 days of service of the responsive pleading or within 21 days of being served with a motion under Rule 12(b), whichever is earlier.

Additionally, the court should freely give leave to amend a pleading when justice so requires.

Question 22

When are two claims considered related for purposes of supplemental jurisdiction?

Answer 22

When the claims arise out of a common nucleus of operative fact

Question 23

Under Rule 20 permissive joinder, does the defendant to be joined have to meet the requirements of federal subject matter jurisdiction?

Answer 23

If the claims are made solely on the basis of diversity jurisdiction, there must be complete diversity between the plaintiffs and the defendants, and each claim must exceed the jurisdiction amount in controversy of $75,000.

Question 24

Who is responsible for serving the summons and complaint, and when must it be served?

Answer 24

The plaintiff is responsible for serving the summons and complaint upon the defendant within 90 days after filing the complaint.

Question 25

What interlocutory orders are immediately appealable?

Answer 25

28 USC 1292(a) makes certain equitable orders reviewable immediately as a matter of right, including: (i) An order granting, modifying, refusing, or dissolving an injunction; (ii) An order appointing or refusing to appoint a receiver; and (iii) A decree determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

Question 26

What is removal jurisdiction and who generally has the right to remove?

Answer 26

Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed to the district court for the district and division in which the state court action is pending. Generally, the right of removal is a right of the defendant. Removal itself does not raise any personal jurisdiction issues.

Question 27

What are the three types of mandatory disclosures?

Answer 27

Rule 26(a) requires the parties to make: (i) Initial disclosures; (ii) Disclosures of expert testimony 90 days before trial; and (iii) Pretrial disclosures 30 days before trial.

Question 28

Who has the burden of proof in a claim for summary judgment?

Answer 28

The movant has the burden of persuasion on a motion for summary judgment. Once the movant makes a prima facie showing that summary judgment is appropriate, the burden shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of fact for trial.

Question 29

What are the four requirements for a class action?

Answer 29

(i) The class must be so numerous that joinder of all members is impracticable (numerosity); (ii) There must be questions of law or fact that are common to the class (commonality); (iii) The claims or defenses of the representatives must be typical of the class (typicality); and (iv) The representatives must fairly and adequately protect the interests of the class (adequacy).

Question 30

What is the rule for removal when there are multiple defendants?

Answer 30

In general, all defendants who have been properly joined and served are required to join in or consent to the removal. If the defendants are served at different times and a later-served defendant files a notice of removal, then any earlier-served defendant may join in the removal even though that defendant did not previously initiate or consent to removal. Note: In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal.

Question 31

What is the standard of review used by appellate courts for legal rulings?

Answer 31

In general, appellate review of legal rulings is de novo (i.e., without deference to the trial court's legal rulings).

Question 32

Under Rule 20 permissive joinder, does the plaintiff to be joined have to meet the requirements of federal subject matter jurisdiction?

Answer 32

If multiple plaintiffs join together under Rule 20, then supplemental jurisdiction can exist for a claim that does not meet the statutory jurisdictional amount, provided the parties still meet the requirements of complete diversity.

Question 33

What are the requirements for a plaintiff seeking a preliminary injunction?

Answer 33

A plaintiff seeking a preliminary injunction must establish that: (i) He is likely to succeed on the merits; (ii) He is likely to suffer irreparable harm in the absence of relief; (iii) The balance of equities is in his favor; and (iv) The injunction is in the best interest of the public.

Question 34

When a class action is brought under a common legal or factual question, what seven pieces of information must be stated in the notice provided to the members?

Answer 34

(i) The nature of the action; (ii) The definition of the class; (iii) The class claims, issues, or defenses; (iv) That a class member may enter an appearance through an attorney if the member so desires; (v) That the court will exclude from the class any member who requests exclusion; (vi) The time and manner for requesting exclusion; and (vii) The binding effect of a class judgment on members.

Question 35

What is federal question jurisdiction?

Answer 35

Under 28 U.S.C. 1331, the district courts have original jurisdiction over all actions arising under the Constitution, laws, or treaties of the United States.

Question 36

In assessing whether a case can be filed in federal court, when is diversity determined?

Answer 36

Diversity is determined at the time the case is filed. There is no requirement that diversity exist at the time the cause of action arose. A change in citizenship or amount in controversy after the filing of the case will not affect diversity jurisdiction that was in existence at the time of the filing. In addition, a change in the parties as a result of substitution or intervention will not affect diversity jurisdiction.

Question 37

What are the three types of personal jurisdiction?

Answer 37

(1) In personam jurisdiction (2) In rem jurisdiction (3) Quasi-in-rem jurisdiction

Question 38

What is the standard used in deciding a motion to dismiss for failure to state a claim upon which relief can be granted?

Answer 38

Under Rule 12(b)(6), a claim for relief can be dismissed if it either (i) fails to assert a legal theory of recovery that is cognizable at law, or (ii) fails to allege facts sufficient to support a cognizable claim. In deciding a motion under Rule 12(b)(6), 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.

Question 39

What is a compulsory counterclaim?

Answer 39

A pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if: (i) The claim arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim; and (ii) The claim does not require adding another party over whom the court cannot acquire jurisdiction. Note: A party who fails to assert a compulsory counterclaim waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court.

Question 40

What are the three types of jury verdicts?

Answer 40

(1) Special verdict - A written finding made by the jury on each issue of ultimate fact. The court submits written questions to the jury correlating to each ultimate fact of the case and asks the jury to make a finding on each fact. (2) General verdict - A decision by the jury as to the prevailing party and, if the plaintiff is the prevailing party, the amount of damages. (3) General with special interrogatories - This couples a general verdict with a special verdict. It is used to ensure that the jury independently considered the material facts of the case in arriving at its verdict.

Question 41

What is the due process requirement for in personam jurisdiction?

Answer 41

Due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice.

Question 42

If a case starts out as not removable, but later becomes removable, what is the timeframe for removing?

Answer 42

The defendant has 30 days to file a notice of removal once the defendant receives a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is now removable.

Question 43

When can a defense of lack of subject matter jurisdiction be raised?

Answer 43

The defense of lack of subject matter jurisdiction may be raised at any time, even on appeal. Rule 12(h)(3).

Question 44

How long does a defendant have to respond to a complaint?

Answer 44

The correct answer is Under Rule 12, within 21 days of service of process, a defendant must respond to a complaint either by an answer or by a pre-answer motion.

Question 45

Where is an individual's domicile and how is the domicile changed?

Answer 45

An individual's domicile is the state where the individual is present and intends to reside for an indefinite period. This state remains the domicile until the individual: 1. Establishes presence in a new place; and 2. Manifests intent to remain there for an indefinite period.

Question 46

When may a plaintiff join as a permissive joinder?

Answer 46

Pursuant to Rule 20(a)(1), a person may join in one action as plaintiff if: (i) They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (ii) Any question of law or fact common to all plaintiffs will arise in the action. Note: The same circumstances apply to permissive joinder of defendants under Rule 20.

Question 47

What are six grounds for a court to grant a motion for a new trial?

Answer 47

(i) Error at trial that renders the judgment unfair; (ii) Newly discovered evidence that existed at the time of the trial was excusably overlooked and would likely have altered the outcome of the trial; (iii) Prejudicial misconduct of counsel, a party, the judge, or a juror; (iv) A verdict that is against the clear weight of the evidence; (v) A verdict that is based on false evidence; or (vi) A verdict that is excessive or inadequate. Note: Rule 59 does not specifically list the grounds that will justify a new trial, but in practice, the overarching theme is that the court may grant a new trial to prevent a miscarriage of justice.

Question 48

What are the two ways in which a defendant can consent to in personam jurisdiction?

Answer 48

1. Express consent: defendant agrees in advance to submit to the jurisdiction of the court if a lawsuit is brought by the plaintiff, or stipulates to personal jurisdiction once an action is brought 2. Implied consent: through conduct, such as filing a counterclaim or driving a vehicle within a state

Question 49

Which defenses are waived unless raised in the pre-answer motion or answer?

Answer 49

Under Rule 12(h)(1), the defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defenses will be waived.

Question 50

When is notice not required for a temporary restraining order?

Answer 50

A temporary restraining order may issue without notice to the adverse party if: (i) The moving party can establish, in an affidavit or a verified complaint, that immediate and irreparable injury will result prior to hearing the adverse party's opposition; and (ii) The movant's attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.

Question 51

What three factors will a court consider when deciding to set aside a default judgment?

Answer 51

Three factors the courts generally consider are: (i) Whether the defendant's failure to act was willful; (ii) Whether setting the default aside would prejudice the plaintiff; and (iii) Whether the defendant has presented a meritorious claim.

Question 52

Federal courts of appeals have jurisdiction over appeals of what types of judgments?

Answer 52

Under 28 USC 1291, the federal courts of appeals have jurisdiction over appeals of the 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 53

What is the purpose of a long-arm statute?

Answer 53

A long-arm statute authorizes personal jurisdiction over nonresidents who engage in some activity in the state or cause some action to occur within the state. A long-arm statute either directly authorizes or has been interpreted as authorizing jurisdiction to the extent permissible under the Due Process Clause.

Question 54

When does a court have diversity jurisdiction (two requirements)?

Answer 54

When: (1) The parties to the action are (a) citizens of different states (b) citizens of a state and citizens or subjects of a foreign state (c) citizens of different states and citizens or subjects of a foreign state are additional parties, or (d) a foreign state as plaintiff and citizens of a state or different states; and (2) The amount in controversy in the action exceeds $75,000

Question 55

When must a party be joined as a compulsory joinder under Rule 19?

Answer 55

Under Rule 19(a), a person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction or destroy venue must be joined as a party if: (i) Complete relief cannot be provided to existing parties in the absence of that person; (ii) Disposition in the absence of that person may impair the person's ability to protect his interest; or (iii) The absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations.

Question 56

How does remand differ from removal?

Answer 56

Removal is from state to federal court, and by a defendant, usually within a specified time frame, and with the agreement of all defendants. Remand happens from federal to state court. It does not require consent or timeliness.

Question 57

What is an injunction?

Answer 57

A form of equitable relief mandating that a defendant perform a specified act or prohibiting a defendant from performing a specified act

Question 58

How long may a temporary restraining order remain in effect?

Answer 58

A temporary restraining order may remain in effect for only a limited number of days, but no longer than 14 days unless good cause exists or the adversary consents.

Question 59

What is a judgment as a matter of law, and what is the standard used in deciding these motions?

Answer 59

Under Rule 50(a), once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if the court finds that there is insufficient evidence for a jury reasonably to find for that party. When considering a motion for JMOL, the court must (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.

Question 60

How does a party make a demand for a trial by jury?

Answer 60

Any party may make a written demand for a trial by jury. The demand, which may be made separately or in a pleading, must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury, and filed with the court within a reasonable time after service.

Question 61

When may a party bring a motion for judgment as a matter of law?

Answer 61

A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. Note: If a party moves for a judgment as a matter of law after the close of the plaintiff's case and the motion is denied, then the party may be unable to pursue a renewed motion for judgment as a matter of law after entry of judgment unless the party also moves for judgment as a matter of law after the presentation of all evidence.

Question 62

For the purposes of diversity jurisdiction, how is a corporation's citizenship determined?

Answer 62

A corporation is considered a citizen of the state(s) and/or foreign country of incorporation and also the state or foreign country where it has its principal place of business. Note: There can be more than one state or foreign country of incorporation, but only one state or foreign country will qualify as the principal place of business.

Question 63

Under the Erie Doctrine, what law governs in a federal question claim?

Answer 63

If the action is a federal question claim, then federal substantive and procedural law will control, as well as federal common law.

Question 64

When establishing whether a federal question exists, how are answers and counterclaims assessed?

Answer 64

Answers and counterclaims are not considered in determining the existence of federal question jurisdiction.

Question 65

Typically, if a defendant is voluntarily present in the forum state and served with process there, then the court has personal jurisdiction over the defendant. What are two exceptions?

Answer 65

(1) If a plaintiff fraudulently brings a defendant into the state for the purpose of serving process on the defendant (2) If a defendant is merely passing through the state to attend other judiciary proceedings

Question 66

What are the five bases for in personam jurisdiction?

Answer 66

(1) Voluntary Presence (2) Domicile (3) Consent (4) Long-arm statutes (5) Attachment

Question 67

What are the required elements for a complaint?

Answer 67

Under Rule 8(a), a complaint must include: (i) A short and plain statement of the grounds that establish the court's subject matter jurisdiction; (ii) A short and plain statement of the claim establishing entitlement to relief; and (iii) A demand for judgment for the relief sought by the pleader.

Question 68

How many interrogatories may a party serve on another party?

Answer 68

Pursuant to Rule 33(a), any party may serve no more than 25 written interrogatories on any other party.

Question 69

What is the "well-pleaded complaint rule?"

Answer 69

This rule refers to the determination of federal question jurisdiction made by considering only the necessary elements of the plaintiff's cause of action, not anticipated defenses, answers, or counterclaims. This rule applies both to original jurisdiction of the federal court and to removal jurisdiction.

Question 70

What are the requirements of claim preclusion?

Answer 70

Claim preclusion (res judicata) requires: (i) A valid final judgment on the merits; (ii) Sufficiently identical causes of action; and (iii) Sufficiently identical parties.

Question 71

Must juries reach a unanimous verdict, and how can courts determine whether that happened?

Answer 71

Unless otherwise stipulated, a jury must reach a unanimous verdict. A court must, on a party's request-- or may on its own initiative-- poll the jurors individually after a verdict is returned but before the jury is discharged. If the poll reveals the verdict is not unanimous, the court can (1) direct the jury to deliberate further or (2) order a new trial.

Question 72

Who does a preliminary injunction bind?

Answer 72

A preliminary injunction binds the following persons who receive actual notice of it: (1) the parties, (2) their officers, agents, employees, and attorneys, and (3) any person in active concert or participation with the aforementioned persons.

Question 73

What must a complaint contain to survive a motion for failure to state a claim?

Answer 73

A complaint must generally contain a short and plain statement of the claim showing that the plaintiff is entitled to relief. The statement of the claim need only contain enough facts for a court to plausibly infer that a claim for relief exists.

Question 74

When is plausible relief required vs. probable entitlement?

Answer 74

Complaint vs. preliminary injunction

Question 75

What's a final pretrial order, and what's the standard for modifying it?

Answer 75

At the final pretrial conference, a federal district court judge will issue a final pretrial order that formulates a plan for trial. The court may modify this order only to prevent manifest injustice.

Question 76

What are the requirements for instructing a jury before trial?

Answer 76

In a jury trial, a court (1) must inform the parties of its proposed instructions before instructing the jury and closing arguments, (2) must allow the parties to object on the record and outside the jury's presence before the instructions and closing arguments are delivered, and (3) may instruct the jury at any time before it is discharged.

Question 77

What must a preliminary injunction contain?

Answer 77

A preliminary injunction must contain (1) the reasons why it was issued, (2) a reasonable description of the prohibited or commanded acts, and (3) its specific terms.

Question 78

When are sanctions authorized for the spoliation of evidence?

Answer 78

Sanctions are authorized for spoliation of evidence only if the information cannot be restored or replaced by additional discovery. In determining sanctions, the court should consider the prejudice to another party and the intent of the party that failed to preserve the evidence.

Question 79

What types of sanctions are available for the spoliation of evidence?

Answer 79

When retrieval of the information is possible, even if typically considered inaccessible due to the cost of retrieval, a court may order it and assign the costs to the party who destroyed the evidence; no further sanctions may be imposed. If a party failed to preserve electronically stored information that should have been preserved and it cannot be restored or replaced, the court may order alternate sanctions against the wrongful party, limited to the court’s discretion of those necessary to cure any prejudice to the other party. If the court finds that the sanctioned party acted with the purpose of depriving the other party of the evidence’s use in litigation, then the available sanctions include (i) a presumption that the destroyed or lost information was unfavorable to the sanctioned party; (ii) a jury instruction that it may or it must presume the information was unfavorable to the party; or (iii) an entry of a default judgment against the party.

Question 80

What can a nonmovant rely on to defeat a summary judgment motion?

Answer 80

A nonmovant can defeat a summary judgment motion by showing specific disputed facts through affidavits, declarations, discovery, or other materials containing admissible evidence. However, the nonmovant cannot defeat the motion by relying on allegations in the pleadings (because while a court must view the evidence in the light most favorable to the nonmovant, the court is not required to take the complaint's allegations and inferences as true).

Question 81

Does the location and activities of a corporation's subsidiary have effect on its domicile?

Answer 81

No.

Question 82

How long does have a party have to alter/amend a final judgment, and what is one ground for such a motion?

Answer 82

A party can move to alter or amend a final judgment within 28 days after entry of the judgment, and one ground for such a motion is that there has been an intervening change in the controlling law.

Question 83

What must usually happen before a party may seek discovery?

Answer 83

A party may not seek discovery until the parties have held an initial planning conference (a meeting where the parties arrange for initial disclosures and prepare a plan for discovery). If a discovery request is submitted before this conference is held, the court would likely grant a protective order.

Question 84

Who enters a default judgment and when must they do so?

Answer 84

A court clerk must enter a default judgment when (1) the plaintiff's claim is for a sum certain, (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.

Question 85

How does a second court determine which preclusion rule applies if they're in different states?

Answer 85

The second court will look to the law of the forum that entered the first judgment.

Question 86

How long does an absent defendant who does not personally receive notice have to file a motion to set aside a judgment?

Answer 86

Any time within one year of the final judgment

Question 87

Can an order granting a motion for a new trial be immediately appealed?

Answer 87

No, it's not a final judgment

Question 88

When can a district court correct a mistake in a judgment, order, or other part of the record?

Answer 88

Before an appeal is docketed, a district court can correct such a mistake 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.

Question 89

Are the elements of a claim or defense, the applicable burden of proof, and the statute of limitations substantive or procedural?

Answer 89

Substantive.

Question 90

What are the different ways process can be served?

Answer 90

Process can be served by (1) following the rules of the state where the court is located or where service is made, (2) delivering the summons and complaint to the defendant personally (or to his/her authorized agent), or (3) leaving the summons and complaint at the defendant's dwelling with a resident of suitable age and discretion.

Question 91

When a federal court is sitting in diversity, what does it mean to undertake a federal rule analysis?

Answer 91

Under federal-rule analysis, a federal court sitting in diversity must apply a valid federal law (e.g., federal rule) that directly addresses an issue so long as the law is arguably procedural and does not abridge, modify, or enlarge a substantive right.

Question 92

Once individuals are selected as members of the jury, when can they be excused?

Answer 92

Each juror must participate in the verdict unless excused by the court for good cause during trial or after jury deliberations have begun. Good cause exists when the juror has an illness, has a family emergency, or has committed juror misconduct that might cause a mistrial-- e.g., providing false testimony during voir dire.

Question 93

What is required for a court to impose monetary sanction for violations of Rule 11?

Answer 93

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.

Question 94

When will an amended complaint "relate back" to the date of the original complaint?

Answer 94

An amended complaint will "relate back" to the date of the original complaint if (1) the same occurrence is at issue, (2) the new party received notice of the suit within 90 days after the original complaint was filed, and (3) the new party knew or should have known that it would have been sued but for a mistake about its identity.

Question 95

If an appellate court hears an appeal from a district court order granting or denying class certification, are the district court proceedings stayed pending the appeal?

Answer 95

Only when ordered by the district court or appellate court.

Question 96

How much weight should a forum selection clause be afforded when considering a transfer motion?

Answer 96

When transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching (even if relevant state law is against forum selection clauses). Furthermore, the Supreme Court has held that a forum selection clause should be given “controlling weight in all but the most exceptional cases."

Question 97

When the venue of an action is transferred-- but the original venue was also proper-- which law should the new court apply?

Answer 97

Generally, if the venue of an action is transferred when the original venue is proper (as discussed above), then the court to which the action is transferred must apply the law of the state of the transferor court, including that state’s rules regarding conflict of law. However, when venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the conflict-of-law rules, of the state in which it is located.

Question 98

What is issue preclusion (i.e., collateral estoppel and what are the necessary elements?

Answer 98

The doctrine of issue preclusion (i.e., collateral estoppel) precludes the relitigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim. Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) was a party to the original action (i.e., offensive collateral estoppel). Other elements necessary for issue preclusion to apply are that (i) the issue sought to be precluded must be the same as that involved in the prior action; (ii) the issue must have been actually litigated in the prior action; (iii) the issue must have been determined by a valid and binding final judgment; and (iv) the determination of the issue must have been essential to the prior judgment.

Question 99

Do trial courts have broad discretion to determine when issue preclusion should apply?

Answer 99

Yes, and if a plaintiff could easily have joined in an earlier action, a trial judge may not allow the use of offensive collateral estoppel.

Question 100

What are the special venue rules that apply when a federal officer/employee is sued in their official capacity?

Answer 100

Venue is only proper where the plaintiff resides or where the act or omission complained of occurred

Question 101

What sanctions can a court impose on a party who fails to make required disclosures?

Answer 101

(1) Prohibit the use of the undisclosed evidence; (2) order the payment of the opposing party's reasonable expenses, (3) inform the jury of the nondisclosure, and (4) impose any other appropriate sanction (except for contempt of court).

Question 102

What is the acceptable radius within which a subpoena can compel attendance?

Answer 102

A subpoena can compel attendance at a trial, hearing, or deposition within 100 miles of where the subpoenaed person resides, works, or transacts business. It can also compel attendance of the parties and their officers-- and persons commanded to attend trial who would not incur who would not incur substantial expense-- within the state where the person resides, works, or transacts business.

Question 103

Can parties challenge a trial judge's factual findings on appeal --even if no objection was made on the record-- at a bench trial?

Answer 103

Yes

Question 104

If a federal court rules that the amount of damages awarded is adequate, can they order a new trial?

Answer 104

Yes, but they cannot give the opposing party the option to avoid a new trial by agreeing to increase the amount of damages (i.e., additur).

Question 105

When does the Seventh Amendment right to a jury trial apply?

Answer 105

The Seventh Amendment right to a jury trial applies to federal civil cases when the amount in controversy exceeds 20 dollars and a party asserts a legal claim (i.e., a claim seeking a monetary remedy). However, this right does not apply when a party asserts an equitable claim (i.e., a claim seeking a nonmonetary remedy).

Question 106

What is the two dismissal rule?

Answer 106

Under 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.

Question 107

When Rule 11 sanction proceedings are initiated by a party's motion, what does the safe harbor rule require?

Answer 107

That the party serving the motion refrain from filing it for 21 days after serving it to allow any violation to be corrected (e.g., by dismissing a claim).

Question 108

What are a judge's options if a jury returns a general verdict inconsistent with special interrogatories?

Answer 108

If the verdict and answers 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.

Question 109

If subject-matter jurisdiction is based on diversity jurisdiction, may a party aggregate (i.e., combine) all claims to be joined against a single opposing party to satisfy the amount-in-controversy requirement—even if those claims are unrelated?

Answer 109

Yes

Question 110

When can a party request specific jury instructions?

Answer 110

Before or at the close of evidence (unless the court sets an earlier, reasonable deadline—e.g., by the start of trial. Additionally, a request may be filed after the close of evidence if: 1) the request relates to an issue that the party could not have reasonably anticipated by the deadline or 2) the court permits a late submission that relates to any issue.

Question 111

For in personam jurisdiction, what must a defendant's contacts with a forum state satisfy?

Answer 111

For in personam jurisdiction, a defendant’s contacts with a forum state must be purposeful and substantial, such that the defendant should reasonably anticipate being taken to court there (they purposefully availed themselves of the benefit and protections of the forum state).

Question 112

What is the difference between specific and general personal jurisdiction?

Answer 112

When a cause of action does not arise out of or relate to the defendant’s contacts with the forum, general personal jurisdiction is warranted only when the defendant is “at home” in the forum state.

Question 113

Where is a corporation "at home" for the purpose of general personal jurisdiction?

Answer 113

A corporation is “at home” in the state of its incorporation and the state where its principal place of business is located.

Question 114

When do claims arise out of the same nucleus of operative fact?

Answer 114

Claims arise out of the same nucleus of operative fact if they are part of the same case or controversy and should be tried together.

Question 115

When does a district court have discretion to decline to exercise supplemental jurisidction?

Answer 115

A district court has discretion to decline to exercise supplemental jurisdiction (i) over claims that raise new or complex state law issues or that substantially predominate over claims within original federal jurisdiction; (ii) when the claims within the court’s original jurisdiction are dismissed; or (iii) if there are other compelling reasons for declining jurisdiction in exceptional circumstances.

Question 116

What are provision remedies?

Answer 116

Provisional remedies are temporary remedies issued before trial that are designed to maintain the status quo until a final judgment is rendered. Examples: garnishment (court order directing third party like bank or employer to hold onto indebted party's assets until the court provides further notice), receivership (neutral third party is appointed by court to manage and administer disputed assets and/or property), TRO, replevin (court order seizing property possessed by defendant and transferring it to plaintiff pending the outcome of the lawsuit)