Civil Procedure

Question 1

Q1

What is the standard for granting judgment as a matter of law under FRCP 50(a)(1)?

Answer 1

FRCP 50(a)(1) allows a court to grant judgment as a matter of law if a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.

(D) Whether there is substantial evidence in the record to support the
verdict, resolving all disputed issues in the widow’s favor.

Question 2

Q1

What must a court consider when reviewing a motion for judgment as a matter of law according to Reeves v. Sanderson Plumbing Prods.?

Answer 2

The court must review all of the evidence in the record, draw all reasonable inferences in favor of the nonmoving party, and avoid making credibility determinations or weighing the evidence.

(D) Whether there is substantial evidence in the record to support the
verdict, resolving all disputed issues in the widow’s favor.

Question 3

Q1

What is the standard for granting summary judgment under Rule 56(a)?

Answer 3

A motion for summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

(A) Whether the evidence revealed a genuine dispute of material fact supporting the widow’s claim.

Question 4

Q1

What does Rule 59(a)(1) provide for granting a new trial after a jury trial?

Answer 4

Rule 59(a)(1) allows a federal district court to grant a new trial for any reason that a new trial has historically been granted in federal civil cases, such as if the verdict was against the weight of the evidence.

(B) Whether the verdict is against the weight of the evidence.

Question 5

Q1

Can a judge grant a motion for judgment as a matter of law if there is a “scintilla” of evidence?

Answer 5

No, a judge may grant the motion for judgment as a matter of law if the non-movant did not produce enough evidence to justify a reasonable jury in finding for her on the issues, even if there is a “scintilla” of evidence.

(C) Whether the widow presented a scintilla of evidence to support the verdict.

Question 6

Q1

What is the difference between the grounds for granting a new trial and judgment as a matter of law?

Answer 6

For a new trial, the judge may consider the credibility of witnesses and the weight of the evidence. For judgment as a matter of law, the judge may not make credibility determinations or weigh the evidence.

Question 7

Q1

What must be shown to deny a Rule 50 motion for judgment as a matter of law?

Answer 7

There must be sufficient evidence upon which the jury might reasonably find a verdict for the non-moving party, not just a mere “scintilla” of evidence.

Question 8

Q2

What does Rule 4(e)(1) of the FRCP allow regarding service of process in a federal-court action?

Answer 8

Rule 4(e)(1) allows use of any method of service that would be valid in a state-court suit in the state where the federal court sits.

Question 9

Q2

How do you serve a corporation in a federal-court action?

Answer 9

Rule 4(h)(1)(A) allows service on a corporation in the manner prescribed by Rule 4(e)(1) for serving an individual, meaning any method valid under the law of the state where the federal court is located.

It requires delivering a copy of the summons and complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process.

Question 10

Q2

Why is leaving papers with the AD’s secretary at the office not a valid method of service under FRCP 4(e)(2)?

Answer 10

It does not meet the requirements of personal delivery to the individual, delivery to the individual’s dwelling, or delivery to an authorized agent.

The secretary isn’t an agent authorized by law to recive process for either an individual or corporation

Question 11

Q2

Is service by email authorized under the FRCP for serving individuals or corporations?

Answer 11

No, service by email is not an authorized method under the FRCP.

Question 12

Q2

Who is permitted to serve a summons and complaint under Rule 4(e)(2)?

Answer 12

Any person who is at least 18 years old and not a party to the action may serve a summons and complaint.

Question 13

Q3

What does FRCP 52(a)(1) require a trial court to do in an action tried on the facts without a jury?

Answer 13

FRCP 52(a)(1) requires the court to “find the facts specially and state its conclusions of law separately,” whether the evidence is oral or documentary.

Question 14

Q3

Does the requirement for a trial court to make findings and conclusions apply if the case is tried solely on documentary evidence?

Answer 14

Yes, even if the case is tried solely on documentary evidence, the trial court must make findings of fact and conclusions of law.

Question 15

Q4

What is the “final judgment rule”

Answer 15

The final judgment rule states that courts of appeals have jurisdiction over appeals from all final decisions of the district courts of the United States. A final decision generally ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.

Question 16

Q4

Can a decision that has not ended the litigation on the merits be considered a final judgment?

Answer 16

No, a decision is not considered final if it has not ended the litigation on the merits. Only decisions that end the litigation on the merits are final and appealable under the final judgment rule.

Question 17

Q4

Is the denial of a motion considered a final judgment?

Answer 17

No, the denial of a motion is not considered a final judgment because it does not end the litigation on the merits. The case continues, at least to the discovery phase.

Question 18

Q4

Does the final judgment rule allow for interlocutory appeals in any situations?

Answer 18

Yes, the final judgment rule allows for interlocutory appeals in a small number of situations, principally cases involving injunctions, but these exceptions do not apply to the denial of a motion for lack of jurisdiction.

Question 19

Q4

Is a district court’s decision on jurisdiction considered final?

Answer 19

No, a district court’s decision on jurisdiction is not considered final because it does not end the case on the merits.

Question 20

Q4

Can a decision be appealed if it would end the litigation on the merits upon reversal by the Court of Appeals?

Answer 20

No, the possibility that a reversal by the Court of Appeals would end the litigation on the merits does not make a decision appealable if it is not a final judgment.

(C) Yes, because a contrary appellate decision could terminate the action.
- States an incorrect standard for appealability

Question 21

Q4

Does raising a constitutional question allow for an immediate appeal from a non-appealable order?

Answer 21

No, there is no rule or doctrine that allows an immediate appeal from a non-appealable order merely because the order rejects a claim based on the federal Constitution.

(D) Yes, because the surgeon’s personal-jurisdiction challenge raises a constitutional question.

Question 22

Q5

When may a party seek discovery

Answer 22

A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f). The 26(f) conference must usually occur “as soon as practicable,” and includes tasks like arranging for initial disclosures and preparing a discovery plan.

Question 23

Q5

Can interrogatories be served before the Rule 26(f) conference?

Answer 23

No, under FRCP 26(d)(1), discovery, including serving interrogatories, may not commence until the parties have conferred as required by Rule 26(f).

Question 24

Q5

What is the maximum number of interrogatories allowed without court permission or agreement by the parties?

Answer 24

Under Rule 33(a)(1), one party may serve no more than 25 written interrogatories, including all discrete subparts, on another party unless the court grants permission or the parties agree otherwise

Question 25

# Q5 Are interrogatories asking about the other party's contentions allowed under the FRCP?

Answer 25

Yes, Rule 33(a)(2) states that an interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact.

Question 26

# Q5 Does the filing of an answer by the defendant affect the timing of when interrogatories can be served?

Answer 26

No, there is no requirement that interrogatories be delayed until the answer has been filed. The critical factor is that discovery cannot start until after the Rule 26(f) conference.

Question 27

# Q6 What does Rule 56(d) of the FRCP allow the court to do when facts essential to justify opposition to a summary judgment are unavailable?

Answer 27

Rule 56(d) allows the court to defer action or deny the motion to allow time for obtaining affidavits or declarations or to take discovery.

Question 28

# Q6 What must the nonmovant show to defer a summary judgment under Rule 56(d)?

Answer 28

The nonmovant must show by affidavit or declaration that specified reasons exist for their inability to present facts essential to justify their opposition to the summary judgment.

Question 29

# Q6 What is the burden of the party moving for summary judgment in relation to material facts?

Answer 29

The moving party must show that there is no genuine dispute as to any material fact regarding the claim at issue.

Question 30

# Q6 Can the mere possibility that a jury might find the movant's testimony not credible suffice to prevent summary judgment?

Answer 30

No, the nonmovant must come forward with specific admissible evidence that creates a genuine issue of material fact, not merely rely on potential credibility issues.

Question 31

# Q6 Is it necessary for a party moving for summary judgment to attach evidence to their motion?

Answer 31

No, if the movant demonstrates that the nonmovant does not have sufficient evidence to support an essential element of their claim, they need not attach evidence. (C) Argue that the motion should be denied, because the manufacturer failed to attach any evidence to its motion to show that the insulation was not used by the worker’s employer.

Question 32

# Q6 Why might a cross-motion for summary judgment by the nonmovant not remedy a lack of evidence?

Answer 32

The nonmovant must still meet the same burden of showing no genuine dispute of material fact and cannot rely on the absence of evidence from the movant. (D) Make a cross-motion for summary judgment arguing that the manufacturer has introduced no evidence to show that its insulation did not harm the worker.

Question 33

# Q7 What does 28 U.S.C. § 1404(a) [VENUE] allow a federal district court to do for the convenience of parties and witnesses? Hint: BUZZ WORDS ;)

Answer 33

28 U.S.C. § 1404(a) allows the court to transfer any civil action to any other district or division where it might have been brought, or to any district or division to which all parties have consented.

Question 34

# Q7 What are the two main requirements under 28 U.S.C. § 1404(a) for transferring a case to another district?

Answer 34

The district to which the case is transferred must be one where the case "might have been brought," meaning it must have **personal jurisdiction** over the defendant and be a **proper venue**. Additionally, the **transfer must serve the convenience of parties and witnesses** and be **in the interest of justice**. 3 OBSTACLES TO THINK ABOUT: (1) PJ + Proper Venue (2) Convenience of Parties + Witnesses (3) Interest of Justice

Question 35

# Q7 What is Proper Venue

Answer 35

Venue is proper in a judicial district where a substantial part of the events or omissions giving rise to the claim occurred. (note: also proper in the district where any D resides, if all Ds reside in the same state; and if none of these apply - then wherever any D is subject to PJ)

Question 36

# Q7 When is the forum non conveniens doctrine applied in federal courts?

Answer 36

The forum non conveniens doctrine is applied when the more appropriate forum is abroad. For transfers within the United States, federal courts use 28 U.S.C. § 1404(a).

Question 37

# Q7 Can a federal district court dismiss a case based on forum non conveniens if another federal court is more appropriate?

Answer 37

No, federal courts will transfer the case to the more appropriate federal court under 28 U.S.C. § 1404(a) rather than dismissing it based on forum non conveniens.

Question 38

# Q8 What does the "two-dismissal rule" under FRCP 41(a)(1)(B) state?

Answer 38

The "two-dismissal rule" states that if a plaintiff voluntarily dismisses any federal or state court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

Question 39

# Q8 When can a plaintiff voluntarily dismiss an action without it being an adjudication on the merits?

Answer 39

A plaintiff can voluntarily dismiss an action without it being an adjudication on the merits by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.

Question 40

# Q8 In the context of the two-dismissal rule, what is the significance of the second dismissal of a case?

Answer 40

The second dismissal of a case involving the same claims operates as an adjudication on the merits, triggering the two-dismissal rule and barring further claims based on the same facts.

Question 41

# Q8 Does the plaintiff's prompt and diligent attempt to address pleading defects affect the application of the two-dismissal rule?

Answer 41

No, the plaintiff's prompt and diligent attempt to address pleading defects does not prevent the application of the two-dismissal rule.

Question 42

# Q8 Does the fact that the plaintiff dismissed each previous action before the defendant answered or moved prevent the two-dismissal rule from applying?

Answer 42

No, the fact that the plaintiff dismissed each previous action before the defendant answered or moved does not prevent the two-dismissal rule from applying.

Question 43

# Q8 Is the plaintiff's failure to seek a court order of dismissal relevant in the application of the two-dismissal rule?

Answer 43

No, the plaintiff's failure to seek a court order of dismissal is irrelevant to the application of the two-dismissal rule if the dismissals were filed before the defendant answered or moved for summary judgment.

Question 44

# Q9 Under FRCP 50(a)(2), when must a motion for judgment as a matter of law be made?

Answer 44

A motion for judgment as a matter of law must be made at any time before the case is submitted to the jury.

Question 45

# Q9 What happens if a party does not move for judgment as a matter of law before the case goes to the jury?

Answer 45

If a party does not move for judgment as a matter of law before the case goes to the jury, they waive the right to ask for judgment as a matter of law post-verdict.

Question 46

# Q9 Can a trial judge decide the sufficiency of the evidence before the case goes to the jury?

Answer 46

Yes, a trial judge can conclude that the plaintiff has not submitted sufficient evidence for a reasonable jury to find for the plaintiff and can take the case from the jury on the grounds of insufficient evidence.

Question 47

# Q9 Does the fact that a judge ruled on a post-verdict motion for judgment as a matter of law help if the motion was not made before the case went to the jury?

Answer 47

No, the failure to raise the challenge before the case went to the jury is fatal to any right to make the motion post-verdict or to appeal the trial judge’s rejection of the post-verdict motion.

Question 48

# Q10 What does 28 U.S.C. § 1738 [FULL FAITH AND CREDIT CLAUSE] require regarding the preclusive effect of state-court judgments in federal courts?

Answer 48

28 U.S.C. § 1738 requires that state-court judgments have the same full faith and credit in federal courts as they have in the courts of the state from which they are taken. Federal courts must give no greater preclusive effect to a state-court judgment than the state court itself would.

Question 49

# Q10 How does the Supreme Court interpret the Full Faith and Credit Clause regarding issue preclusion?

Answer 49

The Supreme Court interprets 28 U.S.C. § 1738 to mean that if a state would not give preclusive effect to a particular judgment rendered by its courts, then the federal court is also forbidden to give the judgment preclusive effect.

Question 50

# Q10 Is the issue preclusion law of the state where the federal court sits relevant in determining the preclusive effect of a state-court judgment?

Answer 50

No, the issue preclusion law of the state where the federal court sits is irrelevant. The federal court must follow the preclusion rules of the state that rendered the judgment. Hypo: Investor v Company in State Ct in State A; got verdict (company's offering materials contained false info) University v Company in Fed Ct in State B - University moves for partial summary judgment arguing that the state court judgment bound the federal court on the on the issue of whether the company's offering materials contained false info. Neither States permit nonmutual issue preclusion. Should Court grant motion? (A) No, because State A does not permit nonmutual issue preclusion.

Question 51

# Q10 Does federal law allow nonmutual issue preclusion regardless of state law when applying a state-court judgment?

Answer 51

No, federal law does not allow nonmutual issue preclusion if the state law that rendered the judgment does not permit it. The federal court must follow the state’s law on issue preclusion. Non-mutual issue preclusion is the exercise of issue preclusion (a/k/a/ collateral estoppel) by a person who was not a party to the prior litigation. So here, the hypo said that Neither State A nor State B permits nonmutual issue preclusion. Because they don't allow it, University can't raise it, and fed courts are bound by the full faith and credit clause.

Question 52

# Q11 Can a party challenge the sufficiency of the evidence if they did not move for judgment as a matter of law before the jury deliberates?

Answer 52

No, a party cannot challenge the sufficiency of the evidence post-verdict if they did not make a motion for judgment as a matter of law before the jury deliberates.

Question 53

# Q11 What must a party do to preserve an objection to a jury instruction under Rule 51?

Answer 53

A party must object to the jury instruction at the opportunity provided under Rule 51(b)(2), which is before the instructions are given to the jury.

Question 54

# Q11 What is the "plain error" rule in the context of jury instructions?

Answer 54

Under Rule 51(d)(2), a court may consider a plain error in the jury instructions that affects substantial rights, even if the error was not preserved by an objection.

Question 55

# Q12 What does Rule 38(b) [Right of Trial by Jury - Demand] specify about the time limit for making a jury demand?

Answer 55

Rule 38(b) specifies that a jury trial demand must be made no later than 14 days after the last pleading directed to the issue is served. HYPO: A retailer brought a federal diversity action against an architect, alleging fraudulent misrepresentations in the architect’s design of the retailer’s store. The complaint did not include a jury demand. The architect timely moved to dismiss the action for failure to state a claim; he did not file an answer. Twenty days after being served with the motion, the retailer amended the complaint to add a defamation claim based on the architect’s recent statements about the retailer in a local newspaper. In the amended complaint, the retailer demanded a jury trial on both claims. Has the retailer properly demanded a jury trial? So here, the time for a jury trial demand must happen within 14 days of the last pleading directed at an issue (typically the answer). The architect still did not file an answer, so the retailer properly demanded a jury trial.

Question 56

# Q12 What is the "last pleading" directed to an issue in the context of Rule 38(b)?

Answer 56

The "last pleading" directed to an issue is typically the defendant's answer, not motions to dismiss or the complaint itself.

Question 57

# Q12 Can a plaintiff include a jury demand in an amended complaint under Rule 38(b)?

Answer 57

Yes, Rule 38(b) allows a plaintiff to include a jury demand in an amended complaint.

Question 58

# Q12 Does filing a motion to dismiss start the 14-day clock for making a jury demand under Rule 38(b)?

Answer 58

No, filing a motion to dismiss does not start the 14-day clock for making a jury demand; the clock starts after the answer is served.

Question 59

# Q12 What happens if a jury demand is included in the amended complaint before the defendant answers?

Answer 59

If a jury demand is included in the amended complaint before the defendant answers, the demand is considered timely because the last pleading (the answer) has not been served yet.

Question 60

# Q13 What does FRCP 8(c)(1) require regarding affirmative defenses?

Answer 60

FRCP 8(c)(1) requires a party to affirmatively state any avoidance or affirmative defense in their response to a pleading.

Question 61

# Q13 When must a compulsory counterclaim be stated according to Rule 13(a)?

Answer 61

A compulsory counterclaim must be stated in the pleading if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.

Question 62

# Q13 What is the standard for judgment on the pleadings under Rule 12(c)?

Answer 62

Judgment on the pleadings is appropriate only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.

Question 63

# Q13 Can a state exercise personal jurisdiction over an out-of-state defendant who commits a tort within the state?

Answer 63

Yes, states can exercise specific jurisdiction over out-of-state defendants for suits arising out of torts committed within the state.

Question 64

# Q13 What is "alienage" jurisdiction under 28 U.S.C. § 1332(a)(2) [Diversity]? Can courts hear cases between US Citizens v Non-US Citizen?

Answer 64

Alienage jurisdiction allows federal courts to hear civil actions between citizens of a state and citizens or subjects of a foreign state, given that the amount in controversy exceeds $75,000.

Question 65

# Q14 What is the Seventh Amendment's provision regarding jury trials?

Answer 65

The Seventh Amendment to the U.S. Constitution provides that “in suits at common law . . . the right of trial by jury shall be preserved.”

Question 66

# Q14 When must a jury trial be held in cases involving both legal and equitable claims?

Answer 66

According to the Supreme Court's ruling in Beacon Theatres v. Westover, when a case involves both legal and equitable claims, the court must hold a jury trial on the legal claim(s) before holding a nonjury trial on the equitable claims to protect the Seventh Amendment rights.

Question 67

# Q14 Why must a jury trial on legal claims precede a nonjury trial on equitable claims?

Answer 67

To ensure that the party’s Seventh Amendment right to a jury trial on the legal claims is fully preserved and not impaired by prior findings in a nonjury trial. (I didn't know this :P)

Question 68

# Q14 What is the rule regarding a jury trial demand according to Rule 38(b)?

Answer 68

A party may demand a jury trial on any issue triable of right by a jury by serving the other parties with a written demand no later than 14 days after the last pleading directed to the issue is served and filing the demand in accordance with Rule 5(d).

Question 69

# Q14 Why doesn't a party have the right to a jury trial on an equitable claim?

Answer 69

The Seventh Amendment guarantees the right to a jury trial only for legal claims, not for equitable claims such as requests for injunctions.

Question 70

# Q15 would be admissible at trial, and will show that there is a genuine dispute about whether

Answer 70

A party must support the assertion that a fact is genuinely disputed by citing to materials in the record, such as depositions, documents, affidavits, declarations, or other materials, or by showing that the materials cited by the other side do not establish the absence of a genuine dispute.

Question 71

# Q15 What is required for an affidavit to be used in support of or opposition to a summary judgment motion under Rule 56(c)(4)?

Answer 71

The affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Question 72

# Q15 Why is an attorney's affidavit detailing conversations with an expert not sufficient to oppose a summary judgment motion?

Answer 72

An attorney's affidavit based on conversations with an expert is not made on personal knowledge, consists of inadmissible hearsay, and does not show that the attorney is competent to testify on the matters stated.

Question 73

# Q16 Why does supplemental jurisdiction apply to claims by third-party defendants?

Answer 73

Supplemental jurisdiction applies to claims by third-party defendants because they are not considered "plaintiffs" under 28 U.S.C. § 1367(b), which specifically denies supplemental jurisdiction to certain claims by plaintiffs.

Question 74

# Q16 What must a party do to successfully claim supplemental jurisdiction?

Answer 74

A party must demonstrate that the additional claims are so related to the original claims that they form part of the same case or controversy under Article III of the Constitution.

Question 75

# Q16 How does the federal doctrine of supplemental jurisdiction differ from the traditional requirement of complete diversity?

Answer 75

Supplemental jurisdiction allows federal courts to hear additional claims that are part of the same case or controversy even if complete diversity is lacking, while traditional diversity jurisdiction requires complete diversity between all parties.

Question 76

# Q16 What is the rule for determining a corporation's principal place of business? (Diversity)

Answer 76

A corporation's principal place of business is typically where its high-level officers direct, control, and coordinate the company's activities, commonly referred to as the "nerve center."

Question 77

# Q17 What is required for a default judgment in federal court if the claim is not for a sum certain?

Answer 77

If the claim is not for a sum certain, Rule 55(b)(2) requires the court (not the clerk) to enter the judgment following a hearing, and the defendant must be given at least 7 days written notice if they have appeared in the case.

Question 78

# Q17 What constitutes an appearance by a defendant in federal court for the purposes of Rule 55(b)(2)?

Answer 78

An appearance by a defendant can include any formal action indicating an intention to defend, such as filing a motion to dismiss. This appearance entitles the defendant to notice of default judgment hearings.

Question 78

# Q17 What is Rule 60(b) and how does it apply to setting aside a default judgment? [Allows a court to relieve a party from a final judgment for reasons ...]

Answer 78

Rule 60(b) allows a court to relieve a party from a final judgment for reasons including mistake, inadvertence, surprise, excusable neglect, or if the judgment is void. It is applicable if proper notice was not given as required by Rule 55(b)(2).

Question 79

# Q17 How does Rule 55(b)(1) [clerk] differ from Rule 55(b)(2) [court] regarding default judgments?

Answer 79

Rule 55(b)(1) allows the clerk to enter a default judgment without a hearing if the claim is for a sum certain, whereas Rule 55(b)(2) requires the court to enter judgment after a hearing for claims that are not for a sum certain.

Question 80

# Q17 What is considered "within a reasonable time" for filing a Rule 60(b) motion to set aside a judgment?

Answer 80

A Rule 60(b) motion must be filed within a reasonable time, which is generally determined by the circumstances. In the scenario, filing the motion 10 days after the judgment is likely considered within a reasonable time.

Question 81

# Q17 - Hypo Related Why does the value of the damage to the company's building not constitute a "sum certain"?

Answer 81

The value of the damage to the company's building is not a "sum certain" because it cannot be fixed by mere computation and requires a hearing to determine the amount.

Question 82

# Q17 What happens if a defendant fails to receive the required advance notice for a default judgment hearing?

Answer 82

If a defendant fails to receive the required advance notice for a default judgment hearing, they can move to set aside the judgment under Rule 60(b), citing reasons such as the judgment being void or other justifiable reasons.

Question 83

# Q17 What is the difference between a claim for a sum certain and a claim that requires a hearing to determine damages?

Answer 83

A claim for a sum certain can be calculated precisely without additional evidence, allowing the clerk to enter judgment, whereas a claim that requires a hearing to determine damages involves uncertain amounts that need court evaluation.

Question 84

# Q18 What does 28 U.S.C. § 1404(a) [Venue] allow a federal court to do for the convenience of parties and witnesses?

Answer 84

28 U.S.C. § 1404(a) allows a federal court to transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented, for the convenience of parties and witnesses and in the interest of justice.

Question 85

# Q18 How does a forum-selection clause influence a court's decision on the most convenient forum for a case?

Answer 85

A forum-selection clause in a contract is generally treated as binding on the issue of which forum is most convenient for the parties. The Supreme Court in Atlantic Marine Construction Co. v. U.S. Dist. Ct. stated that such clauses should control except in unusual cases, essentially waiving the right to challenge the preselected forum as inconvenient.

Question 86

# Q18 Does the enforceability of a forum-selection clause depend on the common law of the state where the federal court sits?

Answer 86

No, the enforceability of a forum-selection clause does not depend on the common law of the state where the federal court sits because 28 U.S.C. § 1404(a) is a federal statute that governs the transfer for convenience of the parties, making state law irrelevant in this context.

Question 87

# Q18 What is the proper procedure for a defendant to request a change of venue based on a forum-selection clause?

Answer 87

The proper procedure is to file a motion to transfer the case for the convenience of the parties under 28 U.S.C. § 1404(a), not a motion to dismiss for improper venue under 28 U.S.C. § 1406(a), because the existence of a forum-selection clause does not render the original venue "improper."

Question 88

# Q20 What is the maximum duration for a TRO under Rule 65(b)(2) [Injunctions + Restraining Orders] without consent of the adverse party?

Answer 88

A TRO cannot last more than 28 days without the consent of the adverse party. Rule 65(b)(2) limits TROs to an initial period of 14 days, with one possible extension of an additional 14 days.

Question 89

# Q20 Under what condition can a TRO be considered equivalent to a preliminary injunction according to the Supreme Court?

Answer 89

A TRO that is extended beyond the 28-day maximum allowable duration without the adverse party's consent is considered equivalent to a preliminary injunction, making it immediately appealable. This was established by the Supreme Court in Sampson v. Murray.

Question 90

# Q20 When can a preliminary injunction be immediately appealable?

Answer 90

A preliminary injunction is immediately appealable under 28 U.S.C. § 1292(a)(1), which gives courts of appeal jurisdiction over interlocutory orders granting, continuing, modifying, or refusing injunctions.

Question 91

# Q20 What happens if a TRO is not extended beyond the 28-day maximum?

Answer 91

If a TRO is not extended beyond the 28-day maximum, it does not fall within the exceptions to the final judgment rule and is not immediately appealable.

Question 92

# Q20 What is the general rule about the appealability of interlocutory orders?

Answer 92

Interlocutory orders, which are orders not embodied in a final judgment, are generally not appealable unless they fall under specific exceptions, such as preliminary injunctions under 28 U.S.C. § 1292(a)(1).

Question 93

# Q20 What does Rule 65(b)(2) [Injunctions + Restraining Orders] require regarding the expiration of a TRO?

Answer 93

Rule 65(b)(2) requires that a TRO expires at the time set by the court, not to exceed 14 days unless extended for good cause for another 14 days, for a maximum of 28 days without the adverse party's consent.

Question 94

# Q20 What is the required number of jurors to begin a federal civil jury trial according to Rule 48(a)?

Answer 94

A federal civil jury trial must begin with at least 6 and no more than 12 jurors.

Question 95

# Q20 What does Rule 48(b) say about the number of jurors required to deliver a verdict?

Answer 95

Rule 48(b) states that unless the parties stipulate otherwise, the verdict must be unanimous and returned by a jury of at least 6 members.

Question 96

# Q20 Under what condition can a federal civil jury deliver a verdict with fewer than 6 jurors?

Answer 96

A federal civil jury can deliver a verdict with fewer than 6 jurors if both parties stipulate to accept the verdict from the reduced jury.

Question 97

# Q20 What happens if jurors are excused for good cause during a trial, reducing the jury to fewer than 6 members?

Answer 97

If jurors are excused for good cause, the jury can still deliver a valid verdict with fewer than 6 members, provided both parties stipulate to accept it.

Question 98

# Q20 Can the court unilaterally decide to accept a verdict from fewer than 6 jurors?

Answer 98

No, the court cannot unilaterally decide to accept a verdict from fewer than 6 jurors; both parties must stipulate to it according to Rule 48(b).

Question 99

# Q20 What happens if only one party stipulates to a reduced jury verdict?

Answer 99

If only one party stipulates to a reduced jury verdict, the stipulation is not binding, and the verdict would not be proper under Rule 48(b).

Question 100

# Q21 Full Faith and Credit Clause

Answer 100

28 U.S.C. § 1738 requires federal courts to give state court judgments the same full faith and credit, including the same preclusive effect, as they would receive in the courts of the state that rendered the judgment.

Question 101

# Q21 How does the federal statute 28 U.S.C. § 1738 impact the preclusive effect of a state court judgment in federal court?

Answer 101

28 U.S.C. § 1738 mandates that a federal court must give a state court judgment the same preclusive effect it would have in the courts of the state that rendered the judgment, even if the federal court would apply different principles.

Question 102

# Q21 Does the nature of a state court's dismissal (e.g., "with prejudice") affect its preclusive effect in federal court under 28 U.S.C. § 1738?

Answer 102

Yes, if a state court dismisses a case "with prejudice," 28 U.S.C. § 1738 requires federal courts to give that dismissal the same claim-preclusive effect it would have in the rendering state.

Question 103

# Q21 What is the significance of a state court labeling a dismissal "with prejudice" for federal court proceedings?

Answer 103

A state court's dismissal "with prejudice" means the case is considered adjudicated on the merits, and under 28 U.S.C. § 1738, a federal court must treat it with the same preclusive effect as it would have in the state court.

Question 104

# Q22 What does Rule 60(b)(3) [Relief of Judgment from Order] authorize a court to do?

Answer 104

Rule 60(b)(3) authorizes a court to relieve a party from a final judgment due to fraud, misrepresentation, or misconduct by an opposing party.

Question 105

# Q22 What must a movant show to obtain relief under Rule 60(b)(3) [Relief of Judgment from Order]?

Answer 105

The movant must show, by clear and convincing evidence, that the opposing party engaged in fraud (etc) that prevented the movant from fully and fairly presenting its case.

Question 106

# Q22 What is the significance of clear and convincing evidence in Rule 60(b)(3) motions?

Answer 106

Clear and convincing evidence is required to demonstrate that the opposing party's fraud prevented the movant from fully and fairly presenting their case.

Question 107

# Q22 What is the relevance of the 28-day limit in Rule 59(b) for a **new trial motion**?

Answer 107

The 28-day limit is the maximum time after the entry of judgment within which a party must file a motion for a new trial; filing beyond this period makes the motion untimely.

Question 108

# Q22 Does Rule 60 allow for **relief from a judgment** due to a jury's mistaken belief about a factual matter?

Answer 108

No, Rule 60 does not provide relief for a judgment based on a jury's mistaken factual finding; it addresses mistakes by litigants or lawyers, not fact finders.

Question 109

# Q22 What is the condition for newly discovered evidence to be valid for relief under Rule 60(b)(2) [Relief from Judgment]?

Answer 109

The newly discovered evidence must have been in existence at the time of the trial and not discoverable with reasonable diligence before the trial ended. HYPO: A plaintiff sued a defendant in federal court for injuries arising out of an accident involving the parties. The plaintiff alleged and presented evidence at trial demonstrating that her injuries had left her legs permanently paralyzed. The jury found in favor of the plaintiff and awarded her $5 million in damages. **Two months after the court entered judgment, the defendant was given a videotape made that day showing the plaintiff jogging with her doctor.** What is the best way for the defendant to seek relief from the judgment? Rule 60(b)(2) requires that the evidence must have existed at the time of the trial, and the videotape did not exist until after the judgment was entered.

Question 110

# Q23 who may remove a case to federal court?

Answer 110

28 U.S.C. § 1441(a) states that only the defendant or defendants may remove a civil action brought in a state court to a federal court.

Question 111

# Q23 Can a plaintiff remove a case to federal court

Answer 111

No, only defendants have the right to remove a case to federal court

Question 112

# Q23 What should a defendant do if a plaintiff improperly removes a case to federal court?

Answer 112

The defendant should file a timely motion to remand the case back to state court

Question 113

# Q23 What happens if a plaintiff improperly removes a case to federal court?

Answer 113

The federal court does not have jurisdiction, and the entire case should be remanded back to state court.

Question 114

# Q23 What is the timing on remanding due to any other defect other than lack of SMJ

Answer 114

motion to remand a case due to any defect other than lack of subject-matter jurisdiction must be made within 30 days after the filing of the notice of removal

Question 115

# Q23 Under what circumstances is a federal court required to sever and remand state-law claims?

Answer 115

28 U.S.C. § 1441(c) requires the federal court to sever and remand state-law claims that are not within the court's original or supplemental jurisdiction if the action includes both federal and state claims, and the action is properly removed by the defendant.

Question 116

# Q24 What does FRCP 52(a)(6) say about setting aside findings of fact by an appellate court? Rule 52. Findings and Conclusions by the Court- Setting Aside Findings

Answer 116

FRCP 52(a)(6) states that findings of fact must not be set aside unless they are clearly erroneous, and the appellate court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.

Question 117

# Q24 Is a party required to object to the judge’s findings of fact as a pre-condition to an appeal in a non-jury trial?

Answer 117

No, under FRCP 52(a)(5), a party may question the sufficiency of the evidence supporting the findings on appeal, whether or not they objected to the findings at trial.

Question 118

# Q24 What does FRCP 52(a)(1) say about how a trial judge must present findings of fact in a non-jury trial? Rule 52. Findings and Conclusions by the Court

Answer 118

FRCP 52(a)(1) states that findings of fact may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.

Question 119

# Q25 What is the basic grant of jurisdiction to the federal courts of appeal?

Answer 119

28 U.S.C. § 1291, which says that courts have jurisdiction of appeals from “all final decisions of the district courts.” The general rule is that only final judgments may be appealed from, commonly referred to as the "final judgment" rule.

Question 120

# Q25 What does 28 U.S.C. § 1292(a)(1) allow? Courts of Appeal have JX of appeals from interlocutary orders ...

Answer 120

It allows an immediate appeal from interlocutory orders of the district courts granting, continuing, modifying, refusing or dissolving injunctions.

Question 121

# Q25 What are the requirements for an interlocutory appeal under 28 U.S.C. § 1292(b)?

Answer 121

The district judge must state in writing that the order involves a controlling question of law with substantial ground for difference of opinion and that an immediate appeal may materially advance the termination of the litigation.

Question 122

# Q25 What is the “collateral order” doctrine?

Answer 122

It allows an immediate appeal of orders that do not dispose of the merits of the case but constitute a final disposition of some collateral matter.

Question 123

# Q25 Why is the denial of summary judgment not immediately appealable? Why is the denial of summary judgment not considered a "collateral order"? "The factory has asked its attorney’s advice as to whether it may appeal the court’s denial of summary judgment in order to avoid an expensive trial"

Answer 123

Because it is not a final judgment, and there is no applicable exception to the general rule that only final judgments may be appealed from. Because it is an order regarding the merits of the case, not a matter independent of the merits, so the collateral order doctrine does not apply.

Question 124

# Q26 What general rule applies to determining the preclusive effect of a federal court judgment?

Answer 124

The preclusive effect of a federal court judgment is determined by the law of the court that rendered the judgment. *the law of the court that renders a judgment determines what preclusive effect that judgment should have in another court*

Question 125

# Q27 What is the standard for permissive intervention under Rule 24(b)?

Answer 125

Rule 24(b) allows permissive intervention if the intervenor's claim or defense shares a common question of law or fact with the main action.

Question 126

# Q27 How does Rule 24 distinguish between intervention of right and permissive intervention

Answer 126

Intervention of right is mandatory when certain criteria are met, while permissive intervention is discretionary and allowed when the claim shares a common question of law or fact with the main action.

Question 127

# Q27 What does Rule 19(a) and Rule 19(b)(2) specify about indispensable parties

Answer 127

Rule 19(a) identifies who must be joined if feasible, and Rule 19(b)(2) deals with dismissal of actions if indispensable parties cannot be joined.

Question 128

# Q28 What is the standard for general jurisdiction over an out-of-state corporation according to the Supreme Court?

Answer 128

The out-of-state corporation must have "continuous and systematic general business contacts" with the forum state. This was established in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011

Question 129

# Q28 Under what conditions does the Supreme Court's Daimler AG v. Bauman case state that a corporation will typically meet the "continuous and systematic contacts" test for general jurisdiction?

Answer 129

Except in extraordinary cases, this test is satisfied only if the corporation is either incorporated in the forum state or has its principal place of business in the forum state.

Question 130

# Q28 What is specific jurisdiction and how does it differ from general jurisdiction?

Answer 130

Specific jurisdiction refers to the jurisdiction needed to hear a suit arising out of the defendant corporation’s activities in the forum state. General jurisdiction refers to the jurisdiction needed to hear a suit that does not arise out of the defendant corporation’s in-forum-state activities, requiring much greater ties between the corporation and the forum state.

Question 131

# Q29 What does Rule 12(f) allow a party to do regarding a pleading? [Motion to Strike]

Answer 131

Rule 12(f) allows a party to move to strike from a pleading an "insufficient defense" or any "redundant, immaterial, impertinent, or scandalous matter."

Question 132

# Q29 What is the procedure and timeline for a party to file a motion to strike under Rule 12(f)

Answer 132

The court may act on its own or on a party's motion made either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

Question 133

# Q29 What does Rule 7(a) specify about permissible pleadings in federal court

Answer 133

Rule 7(a) specifies that only certain pleadings are allowed: a complaint, an answer to a complaint, an answer to a counterclaim, an answer to a crossclaim, a third-party complaint, an answer to a third-party complaint, and a court-ordered reply to an answer.

Question 134

# Q30 What is required under Rule 51(a) regarding requests for **jury instructions**?

Answer 134

A party may file written requests for the jury instructions it wants the court to give at the close of the evidence or at any earlier reasonable time that the court orders.

Question 135

# Q30 Under Rule 51(b), what must the court do before instructing the jury?

Answer 135

The court must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments.

Question 136

# Q30 What opportunity must the court provide to the parties under Rule 51(b)(2)?

Answer 136

The court must give the parties an opportunity to object on the record and out of the jury’s hearing before the instructions and arguments are delivered

Question 137

# Q30 What does Rule 51(c) require for an objection to be considered timely?

Answer 137

An objection is timely if a party objects at the opportunity provided under Rule 51(b)(2), which is before the instructions and arguments are delivered

Question 138

# Q30 What must a party do to properly assign as error the failure to give an instruction under Rule 51(d)(1)(B)?

Answer 138

The party must properly request the instruction and, unless the court rejected the request in a definitive ruling on the record, also properly object.

Question 139

# Q30 What is the consequence of failing to object to a jury instruction before it is delivered, according to Rule 51(c)(2)?

Answer 139

Failing to object before the instructions are delivered results in waiving the right to assign that error for appeal purposes

Question 140

# Q30 What are the conditions under which an appellate court may consider a plain error in the instructions, according to Rule 51(d)(2

Answer 140

The appellate court may consider a plain error in the instructions that has not been preserved as required if the error affects substantial rights

Question 141

# Q31 What determines a corporation's state of citizenship under 28 U.S.C. § 1332(c)?

Answer 141

A corporation is deemed to be a citizen of any state in which it is incorporated and of the state where it has its principal place of business.

Question 142

# Q31 What is the "nerve center" test as defined by the Supreme Court in Hertz Corp. v. Friend?

Answer 142

The "nerve center" test refers to the place where a corporation's high-level officers direct, control, and coordinate the corporation's activities, typically its headquarters.

Question 143

# Q31 Is the place where a company does most of its manufacturing its principal place of business?

Answer 143

No, after Hertz Corp. v. Friend, a company's principal place of business is its "nerve center," typically its headquarters, not the place of manufacturing.

Question 144

# Q32 What is supplemental jurisdiction under 28 U.S.C. § 1367(a)?

Answer 144

Supplemental jurisdiction applies when the federal court has original jurisdiction over a claim and the additional claims are so related that they form part of the same case or controversy, typically arising from the same transaction or occurrence.

Question 145

# Q32 What does the legislative history of § 1367(a) indicate about the relatedness of claims? The claims must derive from a ...

Answer 145

The claims must derive from a common nucleus of operative fact, generally meaning they arise from the same transaction or occurrence.

Question 146

# Q32 Does the dismissal of a federal-law claim nullify supplemental jurisdiction over a related state-law claim?

Answer 146

No, supplemental jurisdiction is not nullified by the dismissal of the federal-law claim if the state-law claim is part of the same case or controversy.

Question 147

# Q32 Is a federal court obligated to hear a state-law claim under supplemental jurisdiction?

Answer 147

No, the court has discretion to hear or dismiss the state-law claim, especially if all federal claims have been dismissed, according to 28 U.S.C. § 1367(c)(3).

Question 148

# Q32 Does a federal-law defense to a state-law claim confer federal subject-matter jurisdiction?

Answer 148

No, federal subject-matter jurisdiction must appear on the face of the plaintiff’s complaint, not based on a federal-law defense, according to the well-pleaded complaint rule from Louisville & Nashville R.R. v. Mottley.

Question 149

# Q32 Does a state-law claim within the court’s supplemental jurisdiction need to meet the $75,000 amount-in-controversy requirement?

Answer 149

No, if the state-law claim falls within the court’s supplemental jurisdiction, it does not need to satisfy the $75,000 amount-in-controversy requirement.

Question 150

# Q33 When can an action be removed to federal court under 28 U.S.C. § 1331?

Answer 150

An action can be removed to federal court if it includes a claim that arises under the Constitution, laws, or treaties of the United States, giving the federal courts federal-question jurisdiction.

Question 151

# Q33 When can a suit brought in state court be removed to federal district court?

Answer 151

A suit brought in state court may be removed by the defendant(s) to federal district court if it contains a claim that could have originally been filed in federal court.

Question 152

# Q33 What is the forum-defendant rule under 28 U.S.C. § 1441(b)(2)?

Answer 152

The forum-defendant rule prevents removal if the defendant is a citizen of the state where the state-court action was originally filed, but only when the basis for removal is diversity jurisdiction.

Question 153

# Q33 When is the forum-defendant rule not applicable?

Answer 153

The forum-defendant rule does not apply when the removal is based on federal-question jurisdiction, even if there is also diversity jurisdiction.

Question 154

# Q33 What is the time limit for a defendant to file a notice of removal under 28 U.S.C. § 1446(b)(2)(B)?

Answer 154

Each defendant has 30 days from being served with the initial pleading or summons to file a notice of removal.

Question 155

# Q33 What happens if a case is removed within 25 days of service on the second defendant?

Answer 155

Removal is timely if the second defendant removes the case within 25 days of being served, as each defendant has 30 days to file for removal, and consent from the first defendant is sufficient.

Question 156

# Q33 Does the presence of diversity jurisdiction prevent removal if one defendant is from the forum state and there is a federal law claim?

Answer 156

No, removal is not prevented by the forum-defendant rule when the case includes a federal-law claim, even if there is also diversity jurisdiction.

Question 157

# Q34 When does general jurisdiction over an individual typically exist according to Goodyear Dunlop Tires Operations, S.A. v. Brown?

Answer 157

General jurisdiction over an individual typically exists if the individual is domiciled in the forum state.

Question 158

# Q34 What are the requirements for general jurisdiction over a non-domiciliary individual?

Answer 158

For general jurisdiction over a non-domiciliary individual, the individual must have substantial and continuing contacts with the forum state. (systematic + continuous contacts)

Question 159

# Q34 Is traveling to the foruim state once each year for a weeklong vacation considered substantial and continuing contacts? Is it sufficient for general Jx?

Answer 159

Contacts such as traveling to the forum state once each year for a weeklong vacation are not considered substantial and continuing contacts, and therefore are insufficient for general jurisdiction.

Question 160

# Q34 In what ways can you waive the defense of lack of PJ?

Answer 160

A party waives the defense of lack of personal jurisdiction by failing to make it by motion or include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.

Question 161

# Q34 What does Rule 15(a)(1) allow regarding amendments to pleadings?

Answer 161

A party may amend its pleading once as a matter of course within 21 days after serving it.

Question 162

# Q34 What is the "100-mile bulge" provision under Rule 4(k)(1)(B)?

Answer 162

The "100-mile bulge" provision allows personal jurisdiction over a party joined under Rule 14 or Rule 19 if served within a judicial district of the U.S. and not more than 100 miles from where the summons was issued.

Question 163

# Q34 Does the "100-mile bulge" provision apply to original defendants?

Answer 163

No, the "100-mile bulge" provision does not apply to original defendants; it only applies to parties joined under Rule 14 or Rule 19.

Question 164

# Q34 What are the allowable methods of serving an individual under Rule 4(e)(2)?

Answer 164

An individual may be served by delivering a copy of the summons and complaint to the individual personally, leaving a copy at the individual's dwelling with someone of suitable age and discretion, or delivering a copy to an agent authorized to receive service of process.

Question 165

# Q35 What are the three methods of service listed under Rule 4(e)(2)?

Answer 165

(A) Delivering a copy of the summons and complaint to the individual personally; (B) Leaving a copy at the individual’s dwelling with someone of suitable age and discretion who resides there; (C) Delivering a copy to an agent authorized by appointment or by law to receive service of process.

Question 166

# Q35 What is required for the waiver method to eliminate the need for personal service?

Answer 166

The defendant must sign and return the waiver form, and the plaintiff must file the signed form with the court.

Question 167

# Q35 What happens if the defendant does not sign and return the waiver form?

Answer 167

The plaintiff must serve the summons and complaint through one of the formal methods listed in Rule 4(e)(2) for service to be valid.

Question 168

# Q35 What should a court do if service was not properly completed under Rule 4(e)(2) and the defendant did not waive service, but plaintiff moved for entry of default and a default judgment?

Answer 168

The court should not enter a default judgment against the defendant if service was not properly completed and the defendant did not waive service.

Question 169

# Q36 What does 28 U.S.C. § 1404(a) state about changing venue for a civil action?

Answer 169

“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.”

Question 170

# Q36 What are three ways for venue to be valid?

Answer 170

A federal civil suit may be brought in any judicial district in which (1) any D resides, if all Ds are from the same state; (2) where a substantial part of the events or omissions giving rise to the claim occurred; or if none of those apply, then whereever PJ applies.

Question 171

# Q36 What are the key factors that § 1404(a) (VENUE) instructs courts to consider when deciding to transfer a case if original venue was proper?

Answer 171

The convenience of parties and witnesses, and the interest of justice.

Question 172

# Q36 Does the existence of common questions of fact with similar actions pending in another state factor into the decision to transfer venue under 28 U.S.C. § 1404?

Answer 172

No, the statute instructs courts to consider the convenience of parties and witnesses and the interest of justice, not the existence of common questions of fact with similar actions.

Question 173

# Q36 What is required if the venue in State A is found to be improper under 28 U.S.C. § 1391?

Answer 173

If the venue in State A is improper, the appropriate remedy is dismissal or transfer to a district where it could have originally been brought, considering the interests of justice.

Question 174

# Q37 What must an order granting a TRO or preliminary injunction include according to Rule 65(d)(1)?

Answer 174

The order must: (A) state the reasons why it issued; (B) state its terms specifically; (C) describe in reasonable detail — and not by referring to the complaint or other document — the act or acts restrained or required.

Question 175

# Q37 Can a TRO be issued without notifying the party to be enjoined?

Answer 175

Yes, a TRO can be issued without notice if the moving party submits an affidavit certifying the reasonable efforts made to give notice and the reasons why it should not be required, according to Rule 65(b)(1)(B).

Question 176

# Q38 What is required for an amendment to relate back under Rule 15(c)(1)(B) - relation back as to a party?

Answer 176

The newly added party must have been named in the original pleading but for a mistake concerning the proper party's identity.

Question 177

# Q38 Does the close of discovery prevent amending a complaint to add a new party under Rule 15(a)?

Answer 177

No, Rule 15(a) permits amendments to pleadings before trial under certain circumstances [(A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier], and the close of discovery does not nullify this right if the amendment is made as a matter of course within the allowed time frame. "the close of discovery does not by itself block a complaint from being amended to add a new party." (A) No, because discovery has closed, and the competitor will be prejudiced.

Question 178

# Q38 When can a party amend its pleading as a matter of course under Rule 15(a)(1)?

Answer 178

A party may amend its pleading once as a matter of course within 21 days after serving it, or within 21 days after service of a responsive pleading or a motion under Rule 12(b), (e), or (f), whichever is earlier.

Question 179

# Q38 What does Rule 15(a) say about granting leave to amend?

Answer 179

Leave to amend should be freely granted when justice so requires, but it cannot overcome the issue of the statute of limitations expiring for a new defendant if the amendment cannot relate back. (C) Yes, because leave to amend should be freely granted when the underlying action was timely.

Question 180

# Q39 What must the court do according to Rule 51(b)(1) before instructing the jury?

Answer 180

The court must inform the parties of its proposed instructions and proposed actions on the parties’ requests for instructions.

Question 181

# Q39 What does Rule 51(a)(1) allow parties to do at the close of evidence in a trial? (think filing jury instructions)

Answer 181

Rule 51(a)(1) allows parties to file written requests for the jury instructions they want the court to give.

Question 182

# Q39 What opportunity must the court provide to the parties according to Rule 51(b)(2)?

Answer 182

The court must give the parties an opportunity to object on the record and out of the jury’s hearing before the instructions and arguments are delivered.

Question 183

# Q39 When can a party assign an error in an instruction given to the jury under Rule 51(d)(1)?

Answer 183

A party may assign an error in an instruction if that party properly objected to it before the jury was instructed.

Question 184

# Q39 What does Rule 51(d)(2) state about considering errors in jury instructions?

Answer 184

A court may consider a plain error in the instructions that has not been preserved if the error affects substantial rights.

Question 185

# Q39 What is the "plain error" standard under Rule 51(d)(2)?

Answer 185

The "plain error" standard allows a court to consider errors in jury instructions on appeal **if the error affects substantial rights**, even if no pre-verdict objection was made. (A) Any errors in the instructions did not affect the defendant’s substantial rights.

Question 186

# Q40 - about jury instructions What does Rule 51 generally require regarding objections to jury instructions? What is the exception under Rule 51(d)(2) for considering errors in jury instructions?

Answer 186

Rule 51 generally requires that litigants must object to instructions before the case goes to the jury. Rule 51(d)(2) allows the court to consider a plain error in the instructions that affects substantial rights, even if the objection was not made before the jury was instructed.

Question 187

# Q40 Why was instructing the jury on contributory negligence considered plain error in this case? HYPO A consumer brought a federal diversity action against a manufacturer, seeking damages for products liability claims. In its answer, the manufacturer included the affirmative defense of contributory negligence. Applicable state law had recently abolished contributory negligence as a defense in such actions. Before trial, the judge allowed the parties to submit proposed jury instructions. The manufacturer’s attorney proposed an instruction that the jury should not return a verdict for the consumer if it found that the consumer had been contributorily negligent. After the close of the evidence, the judge told the parties that he would give the contributory negligence instruction. The consumer’s attorney did not object. The judge instructed the jury. After the jury began their deliberations, the consumer’s attorney objected to the contributory negligence instruction.

Answer 187

The governing law does not recognize contributory negligence as a defense to this kind of claim, so the instruction affects the consumer’s substantial rights by permitting an erroneous basis for a verdict against the consumer.

Question 188

# Q40 Can a party object to an instruction after it is given if it constitutes plain error?

Answer 188

Yes, if an instruction is given in plain error, a party can object after it is given.

Question 189

# Q40 Does Rule 51 impose a 28-day deadline for objecting to jury instructions after they are given?

Answer 189

No, Rule 51 does not contain a 28-day deadline for objecting to jury instructions after they are given. (D) Yes, because the consumer’s attorney objected within 28 days after the judge gave the instruction.

Question 190

# Q40 Two buzzwords for judges considering objections to jury instructions

Answer 190

(1) Plain Error + (2) Affects Substantial Rights

Question 191

# Q41 What does Rule 41(a)(1)(A) allow a plaintiff to do before the defendant serves an answer or motion for summary judgment?

Answer 191

Rule 41(a)(1)(A) allows the plaintiff to voluntarily dismiss the action without a court order by filing a notice of dismissal. (B) File a notice of dismissal without prejudice.

Question 192

# Q41 What does Rule 41(a)(2) require if the defendant has already served an answer or motion for summary judgment?

Answer 192

Rule 41(a)(2) requires the plaintiff to seek a court order to dismiss the action once the defendant has served an answer or motion for summary judgment. (A) File a motion for voluntary dismissal without prejudice.

Question 193

# Q41 What is the effect of a court order that does not specify whether a dismissal is with or without prejudice under Rule 41(a)(2)?

Answer 193

If the court order does not specify, the dismissal is without prejudice, meaning the plaintiff can refile the action.

Question 194

# Q41 Can a plaintiff voluntarily dismiss an action by filing a stipulation of dismissal under Rule 41(a)(1)(A)(ii)?

Answer 194

Yes, but the stipulation must be signed by all parties who have appeared in the action. (C) Obtain a stipulation of dismissal without prejudice from the doctor.

Question 195

# Q41 What is the relevance of an affidavit showing the need for further discovery under Rule 56(d)(2)? Why is submitting an affidavit to delay summary judgment not suitable for a plaintiff seeking to dismiss and refile an action?

Answer 195

Such an affidavit is relevant if the party opposing summary judgment cannot present facts essential to justify its opposition and seeks more time to obtain affidavits or take discovery. Because (in that hypo) the plaintiff’s goal is to dismiss the action, not to delay the consideration of summary judgment, and such an affidavit does not achieve that goal.

Question 196

# Q42 What does Rule 48(a) of the Federal Rules of Civil Procedure require for a jury verdict? Unless the parties stipulate otherwise, the verdict must be ... (2 things)

Answer 196

Unless the parties stipulate otherwise, the verdict must be unanimous and returned by a jury of at least 6 members.

Question 197

# Q42 Can the parties stipulate to a non-unanimous verdict under Rule 48(a)?

Answer 197

Yes, the parties can stipulate to a non-unanimous verdict.

Question 198

# Q42 What is the minimum number of jurors required for a verdict if the parties do not stipulate otherwise?

Answer 198

At least six jurors are required for a verdict if the parties do not stipulate otherwise.

Question 199

# Q42 Does the traditional number of 12 jurors matter under Rule 48(a)?

Answer 199

No, the traditional number of 12 jurors does not matter as long as there are at least six jurors left when the verdict is delivered, or fewer if the parties stipulate to allow fewer.

Question 200

# Q42 What happens if the parties stipulate to a non-unanimous verdict?

Answer 200

The stipulation to a non-unanimous verdict will be enforced, making the verdict valid even if it is not unanimous.

Question 201

# Q43 **ERIE CHOICE OF LAW** What is the main principle of the Erie doctrine in diversity cases?

Answer 201

In Erie cases, the federal court is to apply the choice-of-law rules of the forum state.

Question 202

# Q43 **ERIE CHOICE OF LAW** Federal trial court must apply Choice of Law rules of the __ ___ ___ __ ___ ___ ___ ?

Answer 202

The Supreme Court ruled that in Erie cases, the federal trial court must apply the choice-of-law rules of the state in which the district court is sitting.

Question 203

# Q43 **ERIE CHOICE OF LAW** What must a federal court do in a diversity case when determining which state’s substantive law to apply?

Answer 203

The federal court must apply the choice-of-law rules of the state in which it sits to determine which state’s substantive law to apply. It's not the case that in diversity cases, the court applies the damages law of the forum state. (B) Punitive damages are limited to five times the amount of compensatory damages, because in a diversity case, the court applies the damages law of the state in which it sits. So here, the punitive-damages law of State A (the forum state) should be applied, not because the federal court must apply the damages law of the state where the federal court sits (State A), but because the federal court must follow the conflicts rules of State A, which would in turn apply State A’s damages law rather than, say, State B’s damages law.

Question 204

# Q43 **ERIE CHOICE OF LAW** Does the fact that an action is in federal court create a right to apply federal law?

Answer 204

No, under Erie, state substantive law governs in federal court for diversity cases unless there is a specific federal statute or rule applicable. (C) Punitive damages are limited to ten times the amount of compensatory damages, because the action is in federal court.

Question 205

# Q43 **ERIE CHOICE OF LAW** Can a state law impose a stricter limit on punitive damages than the U.S. Constitution allows?

Answer 205

Yes, a state law can impose a stricter limit on punitive damages than the U.S. Constitution allows, as long as it does not exceed the constitutional limit. there is no pre-emption when the state-law limit is more restrictive than the constitutional limit (D) Punitive damages are limited to ten times the amount of compensatory damages, because the constitutional limit pre- empts state-law limits. (thus, this choice was wrong because there was no pre-emption

Question 206

# Q44 **ERIE CHOICE OF LAW** What is the significance of Hanna v. Plumer in the context of the Erie doctrine? Hanna v. Plumer holds that when a valid Federal Rule of Civil Procedure speaks to the issue in question ....

Answer 206

Hanna v. Plumer holds that when a valid Federal Rule of Civil Procedure speaks to the issue in question, the Federal Rule controls over a conflicting state rule, and Erie doctrine doesn’t apply. (A) Federal law, because the burden of pleading on a motion to dismiss in federal court is substantive, not procedural.

Question 207

# Q44 **ERIE CHOICE OF LAW** Is the burden of pleading considered a substantive or procedural issue?

Answer 207

The burden of pleading is considered a procedural issue, which falls within the U.S. Supreme Court’s rulemaking power to specify in the FRCP. (B) Federal law, because the Federal Rules of Civil Procedure control pleading in federal court.

Question 208

# Q44 **ERIE CHOICE OF LAW** What is the "outcome determinative" test and when does it apply?

Answer 208

The "outcome determinative" test applies when the issue is whether a state rule that conflicts with a judge-made federal practice or custom should be followed. It does not apply when a valid and on-point Federal Rule of Civil Procedure governs the issue. (C) State law, because the application of federal law would be outcome-determinative.

Question 209

# Q44 **ERIE CHOICE OF LAW** When does the "bound up" concept apply?

Answer 209

The "bound up" concept applies when the issue is whether a state rule that conflicts with a judge-made federal practice or custom should be followed. It does not apply when a valid and on-point Federal Rule of Civil Procedure governs the issue. (D) State law, because the assignment of the burden of pleading is bound up with the definition of the tenant’s substantive rights.

Question 210

# Q45 What is a compulsory counterclaim under Rule 13(a)?

Answer 210

A compulsory counterclaim is a claim that the pleader has against an opposing party at the time of service if it arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim and does not require adding another party over whom the court cannot acquire jurisdiction.

Question 211

# Q45 Does the basis of the counterclaim in federal or state law affect whether it is compulsory or permissive?

Answer 211

No, whether the counterclaim is based in federal or state law does not affect whether it is compulsory or permissive. Rule 13 focuses on whether the claim arises out of the same transaction or occurrence. (A) No, because the contract claim is governed by state law.

Question 212

# Q45 Is the lack of diversity between the parties relevant to whether Rule 13 permits the counterclaim to be asserted?

Answer 212

No, the lack of diversity is not relevant to whether Rule 13 permits the counterclaim. The court can hear the compulsory counterclaim under supplemental jurisdiction, even if there is no diversity. (B) No, because the parties are not diverse.

Question 213

# Q45 What is the definition of a permissive counterclaim under Rule 13(b)?

Answer 213

A permissive counterclaim is any counterclaim that is not compulsory, meaning it does not arise out of the same transaction or occurrence as the opposing party’s claim. (D) Yes, because the contract claim is a permissive counterclaim.

Question 214

# Q45 What happens if a compulsory counterclaim is not asserted in the answer?

Answer 214

If a compulsory counterclaim is not asserted in the answer, the pleader forfeits the right to assert it in future litigation.

Question 215

# Q46 What does Rule 11 specify regarding an attorney’s obligations when submitting a pleading to the court?

Answer 215

Rule 11 specifies that an attorney certifies, by signing or filing a pleading, that to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the factual contentions have evidentiary support or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Question 216

# Q46 What is the "safe harbor" provision in Rule 11(c)(2)?

Answer 216

The "safe harbor" provision allows an opposing party to move for sanctions, providing 21 days for the party to correct their error before the court can impose sanctions.

Question 217

# Q46 Does the "safe harbor" provision apply when the court acts on its own initiative?

Answer 217

No, the "safe harbor" provision does not apply when the court acts on its own initiative. Rule 11(c)(1) allows the court to impose sanctions without any notice and without any opportunity to cure.

Question 218

# Q46 Is an attorney certifying that the factual contentions are true under Rule 11(b)?

Answer 218

No, an attorney is not certifying that the factual contentions are true, but that they have evidentiary support or will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. (C) Yes, because the attorney filed papers with the court that contained untrue assertions of fact.

Question 219

# Q46 Is there a general rule requiring attorneys to verify signatures on documents before presenting them to a court?

Answer 219

No, there is no general rule requiring attorneys to verify signatures on documents before presenting them to a court. The attorney must believe the documents are genuine to the best of their knowledge, information, and belief, formed after a reasonable inquiry under the circumstances. (D) Yes, because the attorney should have verified the manager’s signature before attaching the covenant to the complaint.

Question 220

# Q47 What are crossclaims?

Answer 220

Rule 13(g) governs crossclaims, allowing a crossclaim against a co-party if it arises out of the transaction or occurrence that is the subject matter of the original action or a counterclaim.

Question 221

# Q47 Can a crossclaim be used as a defense against the plaintiff to shift liability to a co-defendant?

Answer 221

No, a crossclaim cannot be used as a defense against the plaintiff to shift direct liability for damages owed to the plaintiff to a co-defendant. It must be a claim, not a defense.

Question 222

# Q47 What is required for a crossclaim under Rule 13(g)?

Answer 222

A crossclaim must arise out of the same transaction or occurrence as the original action or counterclaim, or relate to any property that is the subject matter of the original action.

Question 223

# Q47 What happens to a crossclaim if the underlying litigation settles?

Answer 223

The crossclaim remains “alive” and can be tried separately until it is resolved, even if the underlying litigation has settled.

Question 224

# Q47 What is the difference between co-parties and opposing parties in the context of Rule 13(g)?

Answer 224

Co-parties are parties on the same side of the original complaint (e.g., codefendants), while opposing parties are on opposite sides (e.g., plaintiff vs. defendant). Crossclaims are between co-parties.

Question 225

# Q47 Can a crossclaim include a contingent claim under Rule 13(g)?

Answer 225

Yes, a crossclaim can include a contingent claim, contending that the co-party “may be” liable for all or part of the claim asserted in the main action. This is one example of the tendency of the FRCP to allow for the assertion of contingent claims, i.e., claims that will “ripen” into an actual present claim only if some future event occurs (here, for instance, a finding that the contractor is liable to the corporation/owner). Allowing contingent claims helps avoid multiple lawsuits, and encourages the parties to resolve the entire controversy among all of them, with a minimum of procedural steps

Question 226

# Q48 What does Rule 16(b)(4) require to modify a scheduling order?

Answer 226

Rule 16(b)(4) requires a showing of good cause and the judge’s consent to modify a scheduling order. Good cause requires the moving party to prove that the deadline cannot reasonably be met despite the diligence of the party seeking the extension.

Question 227

# Q48 Can the date for jury selection be moved after it is set in the scheduling order?

Answer 227

Yes, the date for jury selection can be moved if there is good cause and the judge consents to the modification. (B) No, because the court has set the date for jury selection.

Question 228

# Q48 Does the likelihood of reaching a settlement affect the decision to modify a scheduling order?

Answer 228

No, the decision to modify a scheduling order depends on whether there is good cause for the modification, not the likelihood of reaching a settlement. (C) Yes, because the additional time could facilitate a settlement.

Question 229

# Q48 Why is the non-movant’s burden to prove an absence of good cause not relevant?

Answer 229

The **burden is on the movant** to prove that there is good cause to modify the schedule, not on the non-movant to prove an absence of good cause. (D) Yes, because the defendant has not shown sufficient prejudice that will result if the requested extension is granted.

Question 230

# Q49 When is a motion for judgment on the pleadings under Rule 12(c) timely?

Answer 230

A motion for judgment on the pleadings is timely if the pleadings are closed but early enough not to delay trial.

Question 231

# Q49 What does Rule 7(a) list as allowable pleadings?

Answer 231

(1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer.

Question 232

# Q49 Why was the motion for judgment on the pleadings premature in this case? HYPO: A plaintiff domiciled in State A sued a defendant domiciled in State B, alleging that the defendant had failed to deliver products to the plaintiff under an ongoing contract. The plaintiff attached to the complaint an invoice for the products marked “paid” and a receipt for a wire transfer to the defendant in the amount of $80,000. The defendant answered the complaint, denying that the plaintiff had suffered any losses and asserting a counterclaim for non-payment of $90,000 for an earlier delivery of products. In response to the counterclaim, the plaintiff has moved for judgment on the pleadings.

Answer 232

The motion was premature because the plaintiff had not yet answered the counterclaim, meaning the pleadings were not closed. (A) Deny the motion as premature, because the plaintiff has not yet answered the counterclaim.

Question 233

# Q49 Can a plaintiff attach items to a complaint according to the FRCP?

Answer 233

Yes, Rule 10(c) allows a plaintiff to attach a copy of a written instrument as an exhibit to a complaint, making it part of the pleading for all purposes. (B) Deny the motion, because a plaintiff that attaches items to the complaint cannot move for judgment on the pleadings.

Question 234

# Q49 Is there a requirement for the defendant to cross-move for judgment on the pleadings after the plaintiff has moved?

Answer 234

No, the defendant is not required to cross-move for judgment on the pleadings and may choose to simply defend against the plaintiff’s motion. (C) Grant the motion, because the defendant failed to cross-move.

Question 235

# Q49 Does the defendant's failure to deny an allegation automatically support the grant of a motion for judgment on the pleadings?

Answer 235

No, the fact that the defendant has not denied an allegation does not automatically support the grant of the motion, especially if the pleadings are not yet closed. (D) Grant the motion, because the defendant has not denied that it failed to deliver products after payment by the plaintiff.

Question 236

# Q50 What does Rule 50(a)(1) set as the standard for a judgment as a matter of law (JMOL)?

Answer 236

Rule 50(a)(1) states that a court may grant a motion for JMOL if a **party has been fully heard on an issue during a jury trial** and the court finds that a **reasonable jury would not have a legally sufficient evidentiary basis** to find for the party on that issue.

Question 237

# Q50 When does a jury fail to have a “legally-sufficient evidentiary basis” to find for a party?

Answer 237

A jury fails to have a legally-sufficient evidentiary basis when no reasonable jury could find that the non-movant met its burden of proof on a key element of the claim.

Question 238

# Q51 What is the deadline for renewing a motion for JMOL under Rule 50(b)?

Answer 238

A motion for JMOL may be renewed no later than 28 days after the entry of judgment.

Question 239

# Q51 Can the deadline for renewing a JMOL motion under Rule 50(b) be extended?

Answer 239

No, Rule 6(b)(2) explicitly states that a court must not extend the time to act under Rule 50(b), even for good cause.

Question 240

# Q51 What must the court do if a renewed JMOL motion is filed after the 28-day deadline?

Answer 240

The court is required to deny the motion if it is received after the 28-day post-judgment deadline.

Question 241

# Q51 Can the deadline for a renewed JMOL motion be extended with both parties’ agreement?

Answer 241

No, the deadline for a renewed JMOL motion cannot be extended, even if both parties agree.

Question 242

# Q52 What does Rule 60(b)(4) of the Federal Rules of Civil Procedure allow? (Hint Judgment void; relief)

Answer 242

Rule 60(b)(4) allows a court to relieve a party from a final judgment if the judgment is void. if a court enters an in personam judgment against a defendant without the court’s having personal jurisdiction over that defendant, the judgment is void

Question 243

# Q52 What is required for a court to have “specific jurisdiction” over a defendant?

Answer 243

Specific jurisdiction requires that the claim arises out of the defendant’s voluntary contacts with the forum state.

Question 244

# Q52 What is required for a court to have “general jurisdiction” over an individual defendant?

Answer 244

General jurisdiction over an individual typically requires that the individual is domiciled in the forum state or has substantial and continuing contacts with the forum state.

Question 245

# Q52 Can an attorney’s meritorious defense alone entitle them to relief from a judgment under Rule 60(b)?

Answer 245

No, an attorney must first show that they fall within one of Rule 60(b)’s listed grounds for relief; a meritorious defense alone is insufficient. (A) The attorney has a meritorious defense to the action, which he should be allowed to assert.

Question 246

# Q52 What does Rule 60(b)(1) allow for? Why would Rule 60(b)(1) not help the attorney if he had been wrong about the court’s lack of jurisdiction?

Answer 246

Rule 60(b)(1) allows for relief from a judgment in cases of mistake, inadvertence, surprise, or excusable neglect. Rule 60(b)(1) does not provide relief for tactical errors or deliberate decisions; it only covers mistakes, inadvertence, surprise, or excusable neglect.

Question 247

# Q53 federal Courts of Appeal have jurisdiction only over what?

Answer 247

federal Courts of Appeal have jurisdiction only over final decisions of the district courts, with a few narrow exceptions

Question 248

# Q53 Does a grant of partial summary judgment constitute a final judgment for purposes of appealability?

Answer 248

No, a grant of partial summary judgment does not constitute a final judgment for purposes of appealability.

Question 249

# Q53 Rule 54(b) places a tight limit on the circumstances in which the District Court may direct the clerk to enter partial summary judgment in multi-claim and multi-party cases What does Rule 54(b) allow in multi-claim and multi-party cases?

Answer 249

Rule 54(b) allows the court to direct entry of a final judgment on some but not all claims or parties only if the court expressly determines that there is no just reason for delay.

Question 250

# Q53 What is a key factor that trial judges consider when determining if there is “no just reason for delay” under Rule 54(b)?

Answer 250

One key factor is the overlap between the facts pertaining to the dismissed claims and the facts bearing on the ongoing claims; the greater the overlap, the weaker the case for a finding of “no just reason for delay.”

Question 251

# Q53 What happens if the dismissed claims are not separate and distinct from the ongoing claims?

Answer 251

If the dismissed claims are not separate and distinct from the ongoing claims, the trial judge is likely to decline to certify an immediate appeal under Rule 54(b). ## Footnote `

Question 252

# Q53 Why is the "delay of recovery" factor not sufficient to allow immediate appealability in multi-claim actions?

Answer 252

The "delay of recovery" factor is not sufficient because it would contradict the final judgment rule and Rule 54(b), which requires a finding of "no just reason for delay" for partial judgments to be immediately appealable.

Question 253

# Q53 Can employees appeal the grant of summary judgment on federal-law claims immediately if there is no final judgment on the state-law claims?

Answer 253

No, employees cannot appeal immediately if there is no final judgment on the state-law claims, unless the court expressly finds that there is no just reason for delay under Rule 54(b).

Question 254

# Q54 What does 28 U.S.C. § 1291[Final Judgmenbt Rule] implement in federal courts?

Answer 254

28 U.S.C. § 1291 implements the “final judgment rule,” which states that the federal Courts of Appeal have jurisdiction only over final decisions of the district courts.

Question 255

# Q54 When is a decision considered “final” under the Final Judgment Rule?

Answer 255

A decision is considered “final” when it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.

Question 256

# Q54 Can a partial summary judgment be appealed immediately under the final judgment rule?

Answer 256

No, a partial summary judgment cannot be appealed immediately unless it is part of a final judgment that resolves all claims in the action.

Question 257

# Q54 When can a discretionary interlocutory appeal be granted

Answer 257

A discretionary interlocutory appeal can be granted if the District Court certifies that its order involves a controlling question of law and the Court of Appeals exercises its discretion to allow the appeal.

Question 258

# Q55 What does the Erie doctrine state regarding the application of state law in federal court actions based solely on state law?

Answer 258

The Erie doctrine states that if there is a principle of state law on point that is mostly substantive rather than procedural, the federal court must apply that state principle instead of substantive federal law on that same point.

Question 259

# Q55 What happens when a valid and on-point Federal Rule of Civil Procedure conflicts with a state rule?

Answer 259

When a valid and on-point Federal Rule of Civil Procedure conflicts with a state rule, the federal rule controls over the conflicting state rule.

Question 260

# Q55 What did the Supreme Court hold in Shady Grove Orthopedic Assoc. v. Allstate Ins. Co.? Hint: Class Actions - follow Fed / State?

Answer 260

In Shady Grove Orthopedic Assoc. v. Allstate Ins. Co., the Supreme Court held that Rule 23, as a valid federal rule, controls over a conflicting state statute regarding the ability to proceed as a class action.

Question 261

# Q55 Is a "substantial federal interest" required to apply a valid and on-point Federal Rule of Civil Procedure in a diversity action?

Answer 261

No, when a valid and on-point Federal Rule of Civil Procedure applies, there is no need to show a substantial federal interest to follow the federal rule instead of a conflicting state law principle.

Question 262

# Q55 When does the outcome-determinative test apply in federal court?

Answer 262

The outcome-determinative test applies only when state law conflicts with a judge-made federal practice, not when there is a valid and on-point Federal Rule of Civil Procedure.

Question 263

# Q55 Does the fact that an action arises under state law automatically mean that state procedural rules apply?

Answer 263

No, even if an action arises under state law, federal procedural rules apply if there is a valid and on-point Federal Rule of Civil Procedure covering the issue.

Question 264

# Q56 What is the standard for amending a final pretrial order under FRCP 16(e)?

Answer 264

A final pretrial order may be amended only to prevent manifest injustice.

Question 265

# Q56 Can a final pretrial order be amended for reasons of “oversight, inadvertence, or excusable neglect”?

Answer 265

No, a final pretrial order may be amended only to prevent manifest injustice, not for reasons of oversight, inadvertence, or excusable neglect.

Question 266

# Q56 What is the standard for amending a scheduling order under FRCP 16(b)?

Answer 266

A scheduling order may be modified only for good cause and with the judge’s consent.

Question 267

# Q56 Is the “if justice so requires” standard applicable to amending a final pretrial order?

Answer 267

No, the “if justice so requires” standard from FRCP 15(a) applies to amendments to pleadings, not to final pretrial orders.

Question 268

# Q57 What is the test for granting a Judgment as a Matter of Law (JMOL) under Rule 50?

Answer 268

The test for granting JMOL is whether a reasonable jury would have a "legally sufficient evidentiary basis" for the verdict.

Question 269

# Q57 What must a trial judge avoid doing when deciding a motion for JMOL under Rule 50?

Answer 269

The trial judge must avoid making credibility determinations or weighing the evidence.

Question 270

# Q57 What is insufficient to support a verdict under Rule 50?

Answer 270

A mere "scintilla" of evidence is insufficient to support a verdict; there must be a legally sufficient evidentiary basis.

Question 271

# Q57 Can a motion for JMOL be granted based on the verdict being against the weight of the evidence?

Answer 271

No, the standard for JMOL is whether there is a legally sufficient evidentiary basis for the verdict, not whether the verdict is against the weight of the evidence.

Question 272

# Q57 Can a trial judge grant JMOL if there is a preponderance of the evidence supporting the verdict?

Answer 272

No, the trial judge cannot grant JMOL based on a preponderance of the evidence; the standard is whether there is a legally sufficient evidentiary basis for the verdict.

Question 273

# Q58 What is the time limit for filing a motion to reopen a judgment based on "mistake, inadvertence, surprise, or excusable neglect" under Rule 60(b)(1 [granting a party relief from a final judgment])?

Answer 273

The motion must be brought within one year of the entry of judgment. (Rule 60(c)(1)) In other words, where the motion for relief is based on mistake, the fact that the party did not learn of the mistake until after the one-year limit had expired is expressly made irrelevant. Note: Generally, a motion to reopen judgement not based on those must be made within a reasonable time. The 1-year exception applies to Mistake, Inadvetence, Surprise, or Excusable Neglect.

Question 274

# Q58 Can a judgment be reopened on the grounds of "mistake" after the one-year time limit has expired?

Answer 274

No, a motion to reopen a judgment on the grounds of "mistake" must be filed within one year, regardless of when the mistake is discovered. (Rule 60(c)(1))

Question 275

# Q58 What does Rule 60(b)(1) [grantging a party relief from a final judgment] permit the court to relieve a party from a judgment for?

Answer 275

Mistake, inadvertence, surprise, or excusable neglect.

Question 276

# Q58 Does the concept of "unjust enrichment" support reopening a judgment on grounds of "mistake" if the motion is filed after the one-year deadline?

Answer 276

No, the one-year time limit for a motion based on "mistake" must be met, and the court will not consider the unjust enrichment argument if the deadline is missed.

Question 277

# Q58 Is there an exception to the one-year deadline for reopening a judgment if the mistake is discovered after the one-year period?

Answer 277

No, the one-year deadline is strict, and there is no exception for mistakes discovered after the period has expired. (Rule 60(c)(1))

Question 278

# Q59 When must a defense of lack of personal jurisdiction be raised to avoid waiver?

Answer 278

No later than in the defendant's answer or by a pre-answer motion under Rule 12(b)(2).

Question 279

# Q60 What does Rule 56(d) [Summary Judgment - Facts Unavailable to Non-Movant] authorize a court to do if the nonmovant cannot present facts essential to justify opposition to a summary judgment motion?

Answer 279

Rule 56(d) authorizes the court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery.

Question 280

# Q59 Why is a pretrial motion to dismiss under Rule 12(b)(2) the most efficient and effective means of obtaining a ruling on lack of personal jurisdiction?

Answer 280

Because it directly addresses the issue before the answer is filed, and the defendant's affidavit can initially suffice as evidentiary support.

Question 281

# Q60 Why is Rule 56(d) relevant when a summary judgment motion is filed before any discovery has been conducted?

Answer 281

Rule 56(d) is relevant because it allows the nonmovant to request a deferral or denial of the motion to conduct necessary discovery to obtain evidence to oppose the motion.

Question 282

# Q60 Can a summary judgment motion be filed before the close of discovery?

Answer 282

Yes, under Rule 56(b), a party may file the motion at any time until 30 days after the close of all discovery.