Civil Procedure

Question 1

In a federal question case, when is the action always deemed commenced for statute of limitations purposes?

Answer 1

In a federal question case, the action is deemed commenced for statute of limitations purposes when the complaint is filed with the court.

Question 2

In a diversity case, when is the action deemed commenced for statute of limitations purposes?

Answer 2

In diversity cases (not federal question cases), the Supreme Court has held that the state rule for determining when the action is commenced applies. Thus, depending on the state rule, an action may be commenced for statute of limitations purposes when process is served on the opposing party or when the complaint is filed.

Question 3

During discovery, electronically stored information need not be produced if the responding party identifies it as:

Answer 3

During discovery, electronically stored information need not be produced if the responding party identifies it as from a source that is not reasonably accessible because of undue burden or cost.

Question 4

When is a letter from an expert discoverable?

Answer 4

A non-testifying expert opinion is non-discoverable regardless of whether they were retained or employed. The opinion of an expert consulted in anticipation of litigation is discoverable if a party intends to call the expert as a trial witness. Conversely, the opinion of an expert who is retained in anticipation of litigation but who is not expected to testify at trial (i.e., a consulting expert) is discoverable only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means.

Question 5

When can a party send discovery requests?

Answer 5

A part cannot send discovery requests until after the 26(f) conference occurs. the only exception is for requests for production, which may be served before the 26(f) conference as long as it is served 21 days after service of process. But, the clock does not tick until the 26(f) conference is held.

Question 6

In a diversity case, what standard are federal courts required to apply when considering a motion for a new trial based on the excessiveness of the verdict?

Answer 6

In a diversity case, federal trial courts are required to apply a state law standard when considering a motion for a new trial based on the excessiveness of the verdict.

This comes from the Erie doctrine: Step 1: there is no federal law on point that conflicts with the state law. Step 2: This falls into one of the five state substantive law categories: choice of law rules, elements of a claim or defense, statutes of limitations, rules for tolling statute of limitations, and standard for getting a new trial because the jury’s damages award was excessive or inadequate. This falls into the last category, so the federal court must apply state substantive law.

Question 7

What must a party do to receive a jury trial?

Answer 7

Under Rule 38, to receive a jury trial a party must file a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue. Otherwise, the right to a jury trial generally is deemed waived. Note, however, that the Supreme Court has held that, in the absence of compelling reasons to the contrary, a court should grant relief from the waiver if the issue is normally tried by a jury.

Question 8

When can an issue not originally raised in pleadings be treated as if it was raised in pleadings?

Answer 8

An issue not raised by the pleadings is treated as if raised in the pleadings if it is tried by the parties’ express or implied consent. Failure to object to the introduction of evidence at trial results in impliedly consenting to the introduction of evidence.

Question 9

When can a court allow an amendment to the complaint after new evidence was introduced at trial?

Answer 9

If the other party expressly or impliedly consents to the introduction of new evidence, a party may move-at any time, even after judgment-to amend the pleadings to conform them to the evidence and to raise the unpleaded issue.

Question 10

After a default is entered, what procedure should a party follow to obtain a default judgment against the opposing party? (assuming this falls within the scope of the court clerk, not the judge)

Answer 10

The party should file a motion with the clerk of court. On request of the plaintiff, supported by an affidavit as to the amount due, the clerk may sign and enter judgment for that amount and costs against the defendant if: (i) the plaintiff’s claim against the defaulted defendant is for a sum certain; (ii) the default was entered because the defendant failed to appear; (iii) the defaulted defendant is not an infant or incompetent person; and (iv) the damages amount requested is not greater than the amount requested in the complaint. The dealer’s claim here meets these requirements, so the clerk may enter the default judgment, and no notice is required.

Question 11

Is a jury instruction a question of law or fact? What standard of review if it given in appellate court?

Answer 11

A jury instruction is a question of law. All questions of law are reviewed de novo by the appellate court. No deference is given to the trial court. Appellate court will review content de novo. However, the judge’s decision to give a jury instruction is not content; this is a judgment call and is subject to the abuse of discretion standard.

Question 12

What is the appellate standard of review for questions of law?

Answer 12

An appellate court reviews questions of law de novo, meaning they can substitute their judgment for that of the trial judge. No reversal is required if the error was harmless.

Question 13

What is the appellate standard of review for a question of fact (both in a bench trial and a jury trial)?

Answer 13

In a bench trial, the appellate standard of review for a question of fact in a bench trial is: the appellate court will affirm unless the judgment was clearly erroneous. In a jury trial, the appellate standard of review for a question of fact is: the appellate court will affirm unless no reasonable jury could have reached the same conclusion. No reversal is required if the error was harmless.

Question 14

What appellate standard of review does a court have for discretionary matters?

Answer 14

For discretionary matters, the appellate court will affirm unless there is a abuse of discretion. No reversal is required if the error was harmless.

Question 15

What is required for an otherwise unappealable interlocutory order to be appealable under the Interlocutory Appeals Act?

Answer 15

For an otherwise unappealable order to be appealable under the Interlocutory Appeals Act, the trial judge needs to certify that an order involves a controlling question of law with a substantial ground for difference of opinion, an immediate appeal may materially advance the ultimate termination of the litigation, and the appellate court court agrees to hear it (that is at least two appellate court judges agree to allow an appeal).

Question 16

What is the collateral order exception to the Final judgment Rule?

Answer 16

The collateral order exception allows for an appellate court to hear an interlocutory appeal on an issue if it is: (1) too distinct from the merits of the case (i.e. collateral), (2) a legal question too important to be denied review, and (3) would essentially be unreviewable if the parties waited for final judgment.

Question 17

When must a notice of appeal be filed? Where should it be filed?

Answer 17

Under Rules 3 and 4 of the Federal Rules of Appellate Procedures, a party has 30 days from the entry of judgment to file a notice of appeal with the district court. The filing period is extended to 60 days when the United States is a party to the action.

Question 18

What is a party’s rights on appeal when they disagree with the jury instructions given during trial?

Answer 18

If the party did not timely object to the jury instructions, the appellate court will review the jury instruction using a plain error standard of review. In order to reserve its right to appeal an error in instruction given or not given, a party must object on the record before the instructions are given. If adequately preserved, the instructions are reviewed using an abuse of discretion standard.

Question 19

What standard of review does a denial of a motion for a new trial receive?

Answer 19

The appropriate standard of review for a denial of a motion for a new trial is abuse of discretion.

Question 20

What standard of review does a denial of a renewed motion for a judgment as a matter of law receive?

Answer 20

When an appellate court reviews a trial court’s rukling on a post-trial motion for judgment as a matter of law, it employs a de novo standard because it is an issue of law.

Question 21

When does a Renewed Motion for judgment as a Matter of Law (RJMOL) need to be made? What are its requirements?

Answer 21

An RJMOL must be made within 28 days after entry of judgment. The party must have moved for JML at the ptoper time at trial. The RJMOL must be based upon the same grounds as the JMOL motion.

Question 22

When must a court relieve a party from a final judgment or order?

Answer 22

A court can relieve a party from a final judgment or order when (1) there is a mistake, inadvertence, or excusable neglect, (2) there is new evidence undiscoverable at the time of trial, (3) fraud, misrepresentation, or misconduct by the opposing party, (4) the judgment is void, or (5) the judgment is satisfied or discharged. For 1-3, it must be done in a reasonable time, but never more than a year. For 4-5, it must be done within a reasonable time, and there is no maximum.

Question 23

Can venue be waived?

Answer 23

Yes, if improper! Improper venue is considered waived unless a timely objection (in a pre-pleading motion or, where no such motion is made, in the answer) is made to the improper venue. BUT, when venue was initially proper because a defendant resided in X state and the issue is whether the court can transfer to another venue, this DOES NOT have a strict time limit. Transfer is left to the discretion of the trial judge, and the judge may refuse transfer where the case has been pending for some time and would prejudice a party. ASK: Is this sufficient time?

Question 24

At trial, a claim under federal question subject matter jurisdiction is dismissed. Should the state law claim remain?

Answer 24

The court may dismiss or hear the state law claim in its discretion, but will likely retain jurisdiction over it. The court has discretion to exercise supplemental jurisdiction over the state law claim if the federal and state law claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try in one judicial proceeding. But, a state law claim should be dismissed if the federal claim is dismissed before trial.

Question 25

For claim preclusion (res judicata) to apply, it is necessary that the judgment be:

Answer 25

A valid judgment on the merits of the case. It is not on the merits of the case if the judgment is based on lack of personal jurisdiction, lack of subject matter jurisdiction, improper venue, and failure to join indispensable parties. It also cannot be a judgment dismissed “without prejudice.”

Question 26

When a claimant won an earlier lawsuit, and then files a second lawsuit on the same claim, the claim is said to be:

Answer 26

The claim is said to be merged into the prior judgment. Both merger and bar are used to indicate that claim preclusion is in effect. When the claimant won the earlier judgment, the claim is merged into the prior judgment. When the claimant lost the earlier lawsuit, the claim is said to be barred by the prior judgment.

Question 27

What law does a federal court rely on to see if it has personal jurisdiction over a defendant?

Answer 27

A federal court relies on state law to determine if it has personal jurisdiction over a defendant. Then it determines constitutionality of exercising personal jurisdiction.

Question 28

How is removal done and how long does a defendant have to do so?

Answer 28

The defendant files a “notice of removal” in federal court stating the grounds for removal. The defendant then “promptly served a copy of the notice of removal” on adverse parties and files a copy of the notice of removal in state court. The defendant must remove no later than 30 days after service (NOT filing) of the first paper that shows a case is removable.

Question 29

Can a defendant waive their right to remove a case to federal court?

Answer 29

Yes, a defendant waives their right to remove to federal court if they file a permissive counterclaim.

Question 30

When and where does a party file a notice of appeal?

Answer 30

A notice of appeal must be filed with the district court within 30 days after entry of the judgment that is being appealed.

Question 31

When can and can’t a defendant remove a case to federal court?

Answer 31

A defendant can properly remove an action that could have originally been brought in the federal courts. If there are claims that do not arise under federal question or diversity subject matter jurisdiction, the court has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact that a plaintiff could ordinarily be expected to present them in a single judicial proceeding. If removal is based on DIVERSITY jurisdiction, if any defendant is a citizen of the forum state, the case cannot be removed. A diversity jurisdiction action can also not be removed if the case was filed over one year ago. The only exception to this is if a party is later discharged, and was only joined to the action for collusion purposes. Dismissal of an in-state defendant alone is inadequate.

Question 32

When does a party have to file a motion to remand? What if the motion to remand is based on subject matter jurisdiction?

Answer 32

If the plaintiff bases the motion to remand on a defect other than subject matter jurisdiction, the motion to remand must be brought within 30 days of removal. There is no time limit for subject matter jurisdiction. It can always be remanded if the federal court does not have subject matter jurisdiction.

Question 33

For which reasons can a judge order pretrial conferences?

Answer 33

The Federal Rules of Civil Procedure give the court the power to call one or more pretrial conferences for a variety of reasons as necessary to expedite trial and foster settlement.

Question 34

What happens if a party fails to come to a pretrial conference?

Answer 34

A party or counsel may be sanctioned for failure to attend a conference or obey an order entered pursuant to the conference. The courts must require the disobedient party or counsel to pay expenses incurred (including attorneys’ fees) by other parties unless the court finds that circumstances make such an award unjust.

Question 35

What is the two-step sanction process when a party does not respond fully to discovery?

Answer 35

If a producing party responds, but not fully, the requesting party moves for an order compelling the producing party to answer the unanswered questions/produce the unproductive material, and if the producing party violates the order, the court can enter “merits” sanctions.

Question 36

What happens if a party fails to respond at all to discovery requests?

Answer 36

Th court can enter merits sanctions plus attorney’s costs (and attorney’s fees for the motion).

Question 37

When can a party amend their complaint and answer?

Answer 37

A party can amend their complaint and answer once as of course no later than 21 days after serving it. After that, a party can amend under FRCP 15 with leave of court that is to be “freely given when justice so requires.” Later amendments are less likely to be considered in the interest of justice. For statute of limitations purposes, proposed claims may be said to “relate back” to the date of the original pleading in which the claim was made under Rule 15(c).

Question 38

In a summary judgment motion, what can occur if the defendant does not counter any evidence presented by the plaintiff?

Answer 38

If a party fails to support an assertion of fact or fails to properly address another party’s assertion of fact, the court may consider the fact undisputed for purposes of the motion, grant summary judgment if appropriate, give the party an opportunity to address the fact, or issue any other appropriate order.

Question 39

When is an interlocutory order appealable?

Answer 39

Interlocutory orders are the rulings trial judges make during the course of pretrial proceedings and trials that do not completely resolve the case, i.e. not final, i.e. not appealable. The Interlocutory Appeals Act permits discretionary review of an interlocutory order only when: (i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial ground for difference in opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; and (ii) the court of appeals then agrees to allow the appeal. If a party receives a certificate, they must within 10 days, apply to the court of appeals, where 2/3 judges must agree to hear the appeal.

Question 40

What happens when a default judgment is either constitutionally or procedurally defective?

Answer 40

When a default judgment is constitutionally or procedurally defective, they are subject to collateral attacks. A collateral attack describes a defendant’s ability to challenge a default judgment where the defendant never appeared in the action at all.

Question 41

When are costs not awarded when a party does not comply with a discovery request?

Answer 41

Costs will normally be awarded to attorneys fees when a party does not comply with a discovery request, unless: (i) the moving filed the motion before attempting in good faith to obtain disclosure or discovery without court action, (ii) the opposing party’s nondisclosure, response, or objection was substantially justified, or (iii) other circumstances exist that make an award of expenses unjustified.

Question 42

What does a Rule 11 certification certify?

Answer 42

A certification certifies that to the best of the signor’s knowledge, after all reasonable inquiry taken: (1) filing is not for an improper purpose, (2) non-frivolous legal contentions made are warranted by law or non-frivolous argument to change the law, and (3) factual contentions have evidentiary support.

Question 43

For diversity purposes, what occurs when a representative of an estate asserts a claim in court?

Answer 43

The executor’s citizenship is irrelevant. We look at the citizenship of the decedent to determine diversity in a subject matter jurisdiction question.

Question 44

What affirmative defenses are waived if the defendant does not explicitly plead them in the answer?

Answer 44

The affirmative defenses that are waived if not explicitly plead in the answer are: contributory negligence, claim preclusion, fraud, statute of frauds, statute of limitations, and self-defense.

Question 45

What factors do courts use to determine whether an issue is substantive? When must they do this?

Answer 45

If procedural law is not the issue and state substantive law categories (element/defense to a claim, SOL, rules to toll SOL, new trial for excessive or inadequate damages awarded by jury, or conflict of laws) does not apply, courts examine whether the issue is substantive by: - seeing if the issue is outcome determinative (if applying or ignoring state law affects the outcome of the case, it is substantive, and should be applied) - balancing the interests (of state and federal court in hearing the issue) - forum shopping avoidance (if applying federal law will encourage forum shopping, the court should apply state law)

Question 46

When can a federal court use the service methods allowed by state courts?

Answer 46

A federal court can use the service methods allowed by state court when: the state is (1) where the federal court sits, or (2) where service is made.

Question 47

How long does a party have to amend a pleading as a matter of course? How long does the other party have to respond to the amended pleading?

Answer 47

An amendment as a matter of course must occur either (1) no later than 21 days after service, or (2) if the pleading requires a response, within 21 days of the service of the responsive pleadings or pre-answer motion. The other party then has 14 days or time remaining on the initial 21-day deadline (whichever is longer) to respond to the amended pleading.

Question 48

What are the tests for adding a new claim or a new defendant after the statute of limitations has run?

Answer 48

A party can amend their pleadings by “relating back” to the original filing to add a claim or defendant. A party can add a claim that’s SOL has run by showing that it arises from the same conduct, transaction, or occurrence as the original filing. A party can add a party to the action by showing that: (1) the conduct for which the party is being joined arises from the same conduct, transaction, or occurrence, and (2) within 90 days of the original pleading, both (a) the new defendant knew or received notice of action (not necessarily served with process, but knew of), AND (b) the defendant knew or should have known that but for a mistake, they would have originally been named.

Question 49

What does a party need to do to get an ex parte TRO?

Answer 49

A party who wants an ex parte TRO needs to (1) file paper under oath showing “immediate and irreparable harm” if she must wait for the adverse party to be heard, and (2)the applicant’s lawyer needs to certify that either their effort to give oral or written notice to the defendant and why notice should not be required. The applicant must also post some security to pay for the costs and damages incurred by the adverse party if he is wrongfully restrained.

Question 50

What can a defendant assert an impleader (third party) claim for and what are the steps?

Answer 50

A defendant can join a non-party who may be liable for all or part of the claim brought by the plaintiff against the original defendant if he asserts indemnity or contribution. This is derivative liability (If I am liable to x, then you are liable to me). It cannot be used when the original defendant does not believe that they are liable at all. A defendant may file a third party complaint within 14 days after serving their answer. After this, they need leave of court.

Question 51

What should be disclosed in mandatory expert disclosures? What is not discoverable?

Answer 51

At least 90 days before trial, parties must identify experts who may be used at trial and produce a report containing experts’ opinion, data used, qualifications, etc. Preliminary drafts of the expert report are protected as work product, as are conversations between the attorney and the expert, UNLESS: the conversation relates to the expert’s compensation or about facts/data provided to the expert.