Civil Procedure Flashcards

Question

State Law in Federal Cour

Answer 1

Erie Doctrine – Applies when a federal case is brought under diversity of citizenship jurisdiction. − Federal courts will apply federal procedural law, BUT must apply the substantive law of the forum state in which it sits. Substance vs. Procedure: Procedural Law = civil procedure rules, burden of proof, and rebuttable presumptions. Substantive Law = elements of a claim/defense, choice of law rules, statute of frauds, irrebuttable presumptions, statute of limitations & tolling rules, and preclusion law. When Substantive Federal Law Applies – Federal law will apply for matters governed by the U.S. Constitution, laws passed by Congress, and valid federal law that preempts state law under the Supremacy Clause.

Answer 2

**Step 1**: Is there an “arguably procedural” federal rule on point (based on U.S. Constitution, statute, FRCP, FRE, case law, etc.)? If so, federal procedure law applies. If not… **Step 2:** Is the issue integral to substantive rights/obligations (that determines outcome)? If so, apply state law. If not, balance state & federal interests + consider likelihood of different outcome under federal law (if so, state law).

Answer 3

Timing – Summons & Complaint MUST be served on D within 90-days after filed with the court. − Otherwise, the court must → (a) dismiss the action without prejudice against that D; OR (b) order that service be made within a specified period of time. - EXCEPTION: plaintiff Frist wegen good cause versäumt Process Server – Service may be made by any person who is: (1) at least 18 years old, AND (2) not a party to the action. Method of Service – The method of service must be consistent with Due Process → reasonably calculated, to make the parties aware of the action, and give them an opportunity to object. − Individual → may be served: (a) personally; (b) via someone of suitable age & discretion who resides at the individual’s current dwelling or usual place of abode; (c) via an agent (by appointment or by law, CA: requires follow-up mailing); OR (d) in accordance with state law of the forum state or where service is made. − Corporation, Partnership, or Association → may be served: (a) in accordance with state law of the forum state or where service is made; OR (b) to an officer or managing/general/authorized agent. − Foreign Defendant → may be served via any manner NOT prohibited by international agreement - waiver of service by mail (plaintiff may request that defendant waive service. Service waived if defendant returns waiver within 30. Time to answer (normally 21 from service) extends to 60 after request filed. [CA] Waiver does not extend time to answer) Achtung: defendant served with process while voluntarily in the forum state is subject to PJ there even without consent

Answer 4

1. plaintiff files complaint 2. defendant must answer within 21 days of service (defendant may file a pre-answer motion, if denied, defendant has 14 days from court notice to answer) 3. if ordered, plaintiff must reply within 21 days CA: defendant has 30 days from service to answer. If defendant nstead files a demurrer or motion to strike that the court overrules, must answer in 10 days of ruling

Answer 5

Grds. notice pleading: that puts defendant on notice of enough facts to raise a plausible claim, plausibly suggesting entitlement to relief, not merely conceivable Ausn. 1: Heightened pleading: Must plead with particularity if plaintiff claims fraud, mistake, special damages (not reasonably anticipated for the type of claim asserted), or conditions precedent not being satisfied Ausn. 2: [CA] Fact (code) pleading: basis of claim and relief in more detail than notice pleading. defendant must answer within 30 days. Pleader must state the “ultimate facts” supporting prima facie cause of action (no “conclusions” and not too detailed to be considered “evidence”). Ausn. 3: [CA] Doe defendants: defendant can be sued under a fictitious “Doe” designation if original complaint is timely filed against all defendants (including Does) + plaintiff’s genuine ignorance of Doe’s identity is pleaded, dann: plaintiff has 3 years from filing of complaint to identify and serve Does with amended complaint

Answer 6

defendant’s answer must **specifically deny**/admit each assertion or generally deny w/ specific admission. No denial = admit - defendant’s answer may include a counterclaim ([CA] “cross-complaint”) a) Compulsory: If defendant’s claim arises from same transaction or occurrence as plaintiff’s, it must be pleaded or else barred b) Permissive: Any other claim defendant has may be asserted Achtung: crossclaim kann, wenn aus gleicher transaction/occurrence wie plaitniff stammt, sich auch gegen Dritten bzw. coparty richten, dann muss dieser wieder any compulsory claim against crossclaimant erheben

Answer 7

Maintains the status quo pending the outcome of an action. May be issued only: 1) upon notice to the adverse party; AND 2) if the moving party gives security/bond (used to reimburse non-movant for injury caused by the injunction if the moving party is not successful on the merits). Traditional 4 -Prong Test requires: 1) Likelihood of P’s success on the merits; 2) Likely threat of irreparable harm to the movant; 3) The harm alleged by movant outweighs any harm to the non-moving party (balancing the harm); AND 4) An injunction is in the public interest.

Answer 8

Is an emergency remedy used to maintain the status quo pending the outcome of a preliminary injunction application. − To be issued, a movant must allege immediate and irreparable harm, and a court will analyze the same factors as a preliminary injunction. Ex Parte TRO – Moving party MUST: 1) provide specific facts in a sworn statement showing immediate and irreparable injury, loss, or that damage will result before an adverse party can be heard; 2) certify in writing any efforts made to give notice to the adverse party and why notice should not be required; AND 3) give security in an amount that the court deems proper. *The United States, its officers, & its agencies are NOT required to give security. If granted, an ex parte TRO automatically expires after 14 days, UNLESS: (a) the court sets a shorter time-frame for automatic expiration; (b) the court extends it for good cause; or (c) the parties consent. − The adverse party may move to dissolve or modify the TRO on 2-days’ notice.

Answer 9

A party MUST show: 1) Irreparable injury; 2) Legal remedies are inadequate; 3) Balance of hardships favors the party seeking the injunction; AND 4) Public interest is not harmed. *May be issued only after a full trial on the merits.

Answer 10

A pleading must contain: 1) Grounds for court’s jurisdiction (unless court already has it & no further support is needed); 2) The claim showing pleader is entitled to relief; AND 3) Demand for relief sought. *Special/Heightened state-law pleading rules DO NOT apply in federal court.

Answer 11

It must: 1) State defenses to each claim asserted; AND 2) Admit or deny the allegations asserted. *An allegation is deemed admitted if: (1) a responsive pleading is required; and (2) the allegation is not denied. *Failure to plead an affirmative defense usually results in a waiver of that defense.

Answer 12

As of Right – allowed to amend once as a right within 21-days after service of: a) the original pleading; OR b) a responsive pleading or pre-answer motion to the original pleading. By Permission – in all other cases, an amendment is allowed: a) with the opposing party’s written consent (implied bei unpleaded issues that were actually litigated); OR b) with leave of the court upon motion (should be freely granted when justice so requires). RF: 1.Other party has 14 days to respond or remaining response time for original pleading 2. Relation back: Amended pleading with new claims or defenses relates back to original pleading date, only if new claim or defense arose from the same transaction or occurrence as original

Answer 13

A party must set forth ALL affirmative defenses to the claim alleged. − If a party fails to do so, the pleading MUST be amended.

Answer 14

If the following defenses are NOT included in the D’s first response (answer/ pre-answer motion), they are deemed waived: (1) lack of PJ; (2) improper venue; (3) insufficient process; and (4) insufficient service of process. − BUT, courts have allowed adding waivable defenses to a MTD when: (1) promptly made; AND (2) it’s prior to a hearing on the original motion.

Answer 15

When a Complaint is amended to add a: New Claim → relates back to the date of the original filing so long as it arises out of the same transaction or occurrence as the original pleading allegations. New Defendant → relates back so long as: 1) same transaction and occurrence; 2) new party received notice of the original action within 90 days of filing; AND 3) new party knew (or should have known) that the action would have been brought against it but for a mistake in the party’s identity.

Answer 16

a claim against an opposing party. Permissive Counterclaim = counterclaims that are not compulsory. Compulsory Counterclaim = a claim that: (1) arises out of the same transaction or occurrence; AND (2) does not require adding another party out of the court’s jurisdiction. − MUST be stated in party’s pleading or it’s barred in future litigation. Same Transaction or Occurrence Factors – Courts analyze whether: 1) Issues of fact and law are largely the same; 2) Res judicata would bar a subsequent suit; 3) Substantially the same evidence supports or refutes the claims; and 4) If there is any logical relation between the claim and counterclaim. *The presence of any factor above supports that the claim arises out of the same transaction or occurrence.

Answer 17

A pleading may state a claim against a co-party (co-defendant) as a cross-claim, BUT only if it arises out of the same transaction or occurrence as the original action or counterclaim.

Answer 18

All papers served in a litigation MUST be signed by an attorney of record (or by the party if unrepresented). When presenting the papers to the court, the party certifies the following: 1) It is not being presented for any improper purpose; 2) The legal contentions are warranted and non-frivolous; 3) The factual contentions have evidentiary support or likely will after discovery; AND 4) denials of factual contentions are warranted or reasonably based on lack of information. *NOTE: Rule 11 does not apply to discovery or discovery motions.

Answer 19

The court may issue sanctions (by motion or on its own) for failure to comply with Rule 11. Nature of Sanctions Imposed – are within the discretion of the court, and can be: a) non-monetary directives; b) pay a penalty; or c) pay reasonable attorney’s fees/expensesresulting from the violation. Liability for Sanctions: − Generally, a law firm is jointly responsible for a violation by its partner, associate, or employee, sanctions go to attorney, not client − Monetary sanctions CANNOT be issued against a client for an unwarranted claim/defense/legal contention made by their attorney.

Answer 20

A party CANNOT file a Rule 11 motion with the court without first: 1) serving the motion on the offending party; AND 2) giving the opponent 21 days to withdraw or correct the paper/pleading.

Answer 21

Multiple plaintiffs or defendants MAY be joined in one action if: 1) joint and several relief is asserted by them or the claim arises out of same transaction or occurrence; 2) a common question of law or fact exists; AND 3) SMJ is present for each claim. Logical Relationship Test → all logically related events for a legal action are within the meaning of same transaction or occurrence.

Answer 22

A party MUST be joined if: 1) The party is necessary; AND 2) Joinder is feasible. *The court must order that such a party be joined in the action. Necessary Party – a party is necessary if: a) The court cannot grant complete relief without the party; b) The absent party claims an interest in the action that would be impaired or impeded; OR c) The party’s absence creates a substantial risk of multiple liability or inconsistent obligations. Feasibility – joinder is feasible if: 1) Joinder will not remove SMJ; AND 2) Court has PJ over the party. If joinder is NOT feasible, the court will consider factors to decide whether to continue or dismiss the action: ▪ whether the party’s absence might prejudice any other party; ▪ whether prejudice can be lessened or avoided; ▪ whether an adequate judgment can be rendered; and ▪ if plaintiff would have an adequate remedy if the case is dismissed.

Answer 23

**Impleader:** some third party needs to be brought into the case, so a current party moves to implead them. e.g. B rear ended A, who then rear ended C. C sues A and not B. If A is found liable and has to pay damages, B could be liable to A for those damages. So A impleads B, making the claim that B should be liable too. oder: P homeowner sues D contractor over a bad driveway job. D says, "this job is bad because the concrete was bad, T concrete supplier should be part of this." D moves to implead T. **Interpleader:** There's a stakeholder who has no interest in the outcome facing claims from multiple parties, so they interplead the parties, forcing them to make claims against *one another*. e.g. There are multiple claims on one person's life insurance. The insurance company is going to pay, they have no interest in the outcome, they just need to know who to pay. Insurance company interpleads the claimants and the court will figure out who gets the insurance. **INTERVENEr** = a non-party wants to be joined to original claim already brought

Answer 24

Intervention as of Right – A court MUST permit a non-party to intervene in an action if it demonstrates: 1) That the application to intervene is timely; 2) An interest in the subject matter of the action; 3) That protection of this interest would be impaired; AND 4) Such interest is not adequately represented by existing parties in the action. If Intervention as of Right is NOT present, the court may still allow Permissive Intervention upon a timely motion. Permissive Intervention – A court MAY allow a non-party to intervene when the non-party: 1) Files a timely motion; AND 2) Either: a) Has a claim/defense that shares a common question of law or fact with the main action; OR b) Is given a conditional right to intervene by federal statute. *The court must consider whether intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

Answer 25

D may bring a third-party into an action only if: 1) The third-party is or may be liable to D, 2) for all/part of the claim against D in the action. *Claims merely arising out of the same transaction or occurrence are insufficient unless derivative liability exists (i.e. indemnification, contribution). Commencement of a Third-Party Action – Defendant (as a third-party plaintiff) must serve a Summons & Third-Party Complaint upon the third-party. − Leave of the court is required if more than 14-days have passed since serving its Answer.

Answer 26

A person is allowed to sue on behalf of a class when there is CANT: 1) Commonality – questions of law or fact are common to the class; 2) Adequacy of Representation – the representative parties (incl. counsel) will fairly and adequately protect the interests of the class. 3) Numerosity – class is so numerus that joinder is impracticable; AND 4) Typicality – the claims/defenses of representative parties are typical of the class; Plus P/ER/CQ: *Prejudice*: Separate actions would create a risk of inconsistent results or impair interests of unnamed parties *Equitable relief:* Injunctive or declaratory relief is appropriate for the class as a whole *Common Q predominates*: Common Q of law or fact predominate over individual issues, and a class action is superior to alternative methods of adjudication. This requires notice to all members and option to opt out. Achtung: Class actions require personal jurisdiction over each of the defendants named in the action (no requirement for plaintiffs) Class Certification: If the above are met, the class will be certified if: a) Inconsistent/Dispositive Adjudications – separate actions would create a risk of (i) inconsistent adjudications or (ii) harm the interests of absent class members; b) Declaratory/Injunctive Relief – the party opposing the class has acted/refused to act on grounds that apply generally to the class so that the grounds for declaratory/injunctive relief are appropriate to the whole class; OR c) Predominance & Superiority – common questions of law or fact are predominant, and a class action is superior to other methods.

Answer 27

1. when Q is of common or general interest, of many persons, or numerous pts 2. impracticable to bring all before the court 3. Requires (1) ascertainable class and (2) well-defined community of interest among class members (factors: predominate common Q of law or fact, substantial benefit to pts and ct, adequate rep of interest)

Answer 28

Ziel: forum shopping vemeiden einerseits und mehr bessere Rechtsprechung durch verstärkten Einsatz von federal courts andererseits SMJ is established (and therefore federal court einschlägig): 1. if minimum diversity (any class member diverse from any defendant, nur einer! muss sich unterscheiden) 2. aggregate AIC > $5M 3. 100+ members in proposed class. 4. RF: Any defendant may remove case from state to fed ct i EXCEPTIONS: All primary defendants are states, state officials, gov’t entities; action solely relates to corporate affairs and is based on laws of state of incorporation; or action solely relates to federal securities laws

Answer 29

A party may obtain all non-privileged info that is: 1) Relevant to any party’s claim or defense; AND 2) Proportional to the needs of the case. *The info need not be admissible into evidence to be discoverable. *Once a person reasonably anticipates litigation, that person has a duty to preserve ALL relevant evidence. CA broader: info must be relevant to the subject matter involved in the pending action

Answer 30

a) **interrogatories** (up to 25, including subparts) b) requests for **admissions** c) requests for **production**, d) **depositions** (of anyone, up to 10 per side, once per person—unless ct order or pt stipulation, Achtung: objection to a deposition notice, deposition officer’s qualification, or taking of a deposition (e.g., form of oral or written question, or competence, relevance, materiality of testimony) is waived if it is not made at the deposition e) **motions to compe**l, f) **subpoenas duces tecum** (documents from parties and non-parties), g) **subpoenas** (to produce non-pts w/in 100 miles of where person lives or works, may reimbursed cost of attending if requesting pt absent) h) physical or mental **examinations** by “suitably licensed or certified examiner” by ct order only for good cause, when pt’s condition is in controversy (examined pt may request copy of exam, which waives privilege regarding condition) i) electronically stored info (**ESI**): Requesting pt may specify form of production; responding pt must use that form unless objected to. If form not specified, may use any form the ESI is ordinarily maintained in or reasonably usable by other pt

Answer 31

A party is permitted up to 10 depositions of any person/party, so long as the deposition is: 1) Is limited to 1 day of no more than 7 hours; AND 2) Proper notice is given (reasonable written notice). *A subpoena is NOT required to depose a party to the action. Unless stipulated otherwise, a party MUST obtain leave of the court: a) To take more than 10 depositions; b) To depose a party again – if they had already been deposed in the action; OR c) If it’s seeking a deposition prior to the Rule 26(f) meet and confer conference. Objections – Must be noted on the record, but witness MUST still answer the question(s). − Instruction to Not Answer → Only allowed to: (a) preserve privilege; (b) enforce a court-ordered limitation; OR (c) make a Motion to Terminate or Limit the deposition.

Answer 32

Includes emails, text messages, digital files, and meta-data. When a party reasonably anticipates litigation, it must take reasonable steps to preserve ESI (e.g. suspend routine document retention/destruction policy, litigation hold). Sanctions for Failure to Preserve ESI – The court may sanction a party for failure to preserve ESI only if: 1) The ESI should have been preserved; 2) The party failed to take reasonable steps to preserve it; AND 3) The ESI cannot be replaced/restored through additional discovery. If the above test is satisfied, the court may: a) Order measures no greater than necessary to cure any prejudice; OR b) If failure to preserve was intentional: i. presume that the lost info was unfavorable; ii. instruct the jury that it may or must presume that the lost info was unfavorable; iii. dismiss the action; or iv. enter a default judgment. Need not produced if not reasonable because of burden or cost, must show this to court upon motion to compel, court may still order for cause with cost shifting conditions

Answer 33

All discovery papers served in a litigation MUST be signed by an attorney of record (or a party personally if unrepresented). Certifications When Signing: − Signing any disclosure → certifies that it’s complete and correct at the time made. − Signing any other discovery document → certifies that it’s: (1) consistent with the FRCP and is not frivolous; (2) not being presented for an improper purpose; AND (3) not unreasonable, unduly burdensome, or unduly expensive. Sanctions – The court may issue sanctions for failure to comply with Rule 26(g). If a person violates the rule without substantial justification, the court MUST impose an appropriate sanction (i.e. pay reasonable expenses, incl. attorney’s fees, caused by the violation).

Answer 34

A. Initial Disclosures Without request, each party MUST provide these initial disclosures to opposing parties within 14-days after the Rule 26(f) “meet and confer” conference: 1) Contact info of individuals likely to have discoverable info & the info they likely possess (if it will be used to support claims or defenses); 2) Copy or description of all documents, ESI, & tangible things the party may use to support its claims/defenses (unless it will be used solely for impeachment); 3) Computation of each category of damages; AND 4) Any insurance agreement that may be liable to satisfy a judgment in the action. *If a party fails to provide the above, that party is NOT allowed to use that witness/info on a motion, hearing, or trial UNLESS the failure was substantially justified or harmless. B. Expert testimony (90 before trial): Identity of experts expected at trial, qualifications, opinions + their basis C. Pretrial disclosures (30 before trial): Info about evidence to be used (docs, trial and deposition witnesses) Achtung: nicht in CA

Answer 35

Protects from disclosure all materials prepared by an attorney (or his agents) in anticipation of or during litigation UNLESS: 1) A substantial need for the materials exists; AND 2) A substantial equivalent cannot be obtained without undue hardship. Privilege Log – When a party claims protection, it must disclose the existence of the material in sufficient detail to enable other parties to asses the claim of privilege. CA: noch strenger ?: Absolute protection in writings reflecting mental impressions, conclusions, opinions, legal research, To seek qualified work product (by non-attorney, e.g., experts), must show **unfair prejudice or injustice**, Other party may assert right to privacy, which will be balanced vs. need for discovery

Answer 36

The court may order the attorneys (and pro-se parties) to appear for a Pre-trial Conference to control the management/scheduling of the case. − Attendance is MANDATORY. Scheduling Order – The court will issue a Scheduling Order in most types of actions. − The Scheduling Order may be modified only: (1) for good cause; AND (2) with the judge’s consent. Pretrial Conference Sanctions – May be issued if a party: (a) fails to appear; (b) is substantially unprepared; (c) does not participate in good faith; OR (d) fails to obey a scheduling/pretrial order. − Sanctions include → (a) prohibiting a party from supporting/opposing certain claims or defenses; (b) striking all/part of the pleading; (c) dismissing all/part of the action; OR (d) a default judgment. Modification of Pretrial Conference Order – can only be modified by the court to prevent manifest injustice. **[CA] :** Court must hold initial case management conference w/in 180 days of complaint

Answer 37

Confidential comm b/w expert & counsel is privileged, except compensation info or facts given to expert, Pt withholding info believed to be privileged must make claim *expressly* and describe its nature to other pt

Answer 38

Grds. If disclosed information was materially incomplete or incorrect, and other party does not know [CA] : No such duty unless further discovery is requested

Answer 39

Party who seeks jury trial must **file demand** w/ court and **serve** pts w/in 14 days of service of last pleading directed to jury-triable issues of fact ([CA] w/in 5 of case notice). Demand may be withdrawn if all parties consent. No demand w/in 14 of pleading waives right to jury trial. Ct may still order trial if waiver was unintentional a) If legal claims (seeking damages) are asserted, other party cannot be denied a jury on the damages issues b) If legal + equitable claims in one action, legal claim should be tried first to jury, then equitable claim to ct c) If fed diversity suit, jury trial must be permitted even if state ct would deny a jury (7A > state law per Erie)

Answer 40

Size: 6-12 jurors. May have fewer than 6 jurors if parties agree ([CA] 12 unless parties agree to fewer) - Juror may be excused for good cause (e.g., illness) w/o mistrial, as long as 6+ participate in verdict - Selection: a) Venire of potential jurors, reasonable cross-section of community. b) Voir dire to ask about juror’s potential bias in case. Unlimited # of jurors with bias (deliberate lie or unlikely to be impartial) may be challenged (excused) for cause. 3 peremptory challenges (for any reason, except race or gender) per party - Pt may file proposed instructions at close of case. If not filed or objected to before deliberation, waived - Verdict must be unanimous (einstimmig) unless parties agree otherwise

Answer 41

Motion to Dismiss Standard – Requires the court to: (1) consider the facts in the light most favorable to the non-moving party; and (2) determine if there is any basis upon which relief can be granted. − The court DOES NOT evaluate the merits of the case. Motion to Dismiss Grounds: 1) Lack of SMJ; 2) Lack of PJ; 3) Improper venue; 4) Insufficient process (eg defect in summons form); 5) Insufficient service of process; 6) Failure to state a claim upon which relief can be granted (= general demurrer vor CA courts); 7) Failure to join a necessary party. *Grounds (2) through (5) are deemed waived if not raised in the first responsive pleading or pre-answer motion to dismiss. *Ground (1) may be made at any time. Motion for Judgment on the Pleadings – After Defendant answers, a motion on the above grounds is called a “Motion for Judgment on the Pleadings”.

Answer 42

a) General demurrers: failure to state facts sufficient for a claim, lack of SMJ b) Special demurrers: pleading is ambiguous, lack of legal capacity to sue, misjoinder of parties insgesamt auf CA State Court Ebene wohl das Pendant zu MTD auf Federal Court Ebene

Answer 43

to assert (a) lack of PJ, (b) improper process and/or (c) improper service of process must be made at special appearance (sole purpose is MTQ)—or waived

Answer 44

A court will grant an SJ motion when: 1) There is no genuine issue of material fact; AND 2) Movant is entitled to judgment as a matter of law. *The court MUST view the evidence in the light most favorable to the non-moving party. − An SJ motion may be sought on the entire case or for certain issues (partial summary judgment). − If a Motion to Dismiss (or Motion for Judgment on the Pleadings) presents matters outside the pleadings, the court may treat the motion as a SJ Motion.

Answer 45

Judgment on the pleading: "read the complaint and answer, Judge! If you just read them and consider nothing else, it's obvious that my side wins!" dadurch quasi ähnlich wie eine MTD much more common MSJ: "look at the record (including affidavist, depositions, admissions and stuff like that), your honor! If you really think about it, the two sides agree on all the relevant facts. And with all the facts from the record we're in agreement with, the law says I have to win." hier quasi nur keine mündliche Verhandlung benötigt (?)

Answer 46

shall be granted if, from the pleadings, affidavits, and discovery materials on file (not merely allegations or denials) viewed in light most favorable to nonmoving party (NMP), the moving party shows that **no genuine dispute of material fact exists** and the moving party is entitled to judgment as a matter of law - Timing: Any party may move any time until 30 days after close of discovery ([CA] after 60 days since general appearance of NMP or before based on good cause, at least 75 days before hearing) - If evidentiary material presented in a 12(b)(6) MTD, treat as motion for summary judgment (FRCP 12(d)) - Moving party has burden to show prima facie case; burden shifts to NMP to show genuine issue of fact

Answer 47

Summary judgment: pre-trial motion judgment as a matter of law: in-trial/post-trial after both parties had chance to present the case

Answer 48

SLAPP = Strategic Lawsuit Against Public Participation Ziel: mechanism to defendants to **strike potentially meritless cause**s of action early in litigation while obtaining a mandatory **fee award** (und discovery verhindern?) 1. File w/in 60 days of the SLAPP complaint. Anti-SLAPP motion to strike stays all discovery a) defendant first has burden to show prima facie case that plaintiff’s cause of action arises based on an act in furtherance of defendant’s A1 rights in connection with “public interest” or at a “public forum” b) Burden shifts to plaintiff to establish a probability of prevailing on the merits (going to the jury) 2. SLAPPback motion: defendant who wins on anti-SLAPP motion may assert malicious prosecution by plaintiff

Answer 49

May be brought at any time before the case is submitted to the jury. JMOL will be granted if: 1) The non-moving party has been fully heard on the issue during a jury trial; AND 2) The court finds that a reasonable jury would not have a legally sufficient basis to rule in favor of the non-moving party on that issue. *The court MUST draw all reasonable inferences in the light most favorable to the non-moving party. - Timing: May move after NMP has been fully heard and before submission of case to jury: defendant may move after plaintiff closes case/rebuttal or after defendant closes case. plaintiff may move after defendant closes case Renewal of JMOL Motion – A party may renew its JMOL motion only if it moved before the case was submitted to the jury. − A renewed JMOL motion must be filed within 28 days of the entry of judgment. CA: nonsuit motoin

Answer 50

Court may grant a new trial for any reason for which a new trial has been granted in federal court. − Must be filed no later than 28 days after the entry of judgment. CA: 15 of judgment Grounds for a New Trial: a) Error at trial that makes judgment unfair; b) New evidence surfaced that could not be obtained with due diligence for the original trial; c) Prejudicial misconduct of a party, attorney, third-party, or juror; d) Judgment was against the weight of evidence; OR e) Verdict was excessive or inadequate. (Remittitur "shock the conscience" standard, Additur (not applicable in federal)

Answer 51

14 before trial, defendant may offer a judgment against it on specified terms (settle) If plaintiff rejects offer and gets a less favorable judgment, defendent must pay costs (incl. any atty fees under statute) incurred after offer was made

Answer 52

a) Involuntary dismissal: Against plaintiff, by defendant or ct motion, for failing to pursue or comply w/ FRCP or ct order b) Voluntary dismissal: plaintiff may give up the case by filing a notice before defendant’s answer or motion for summary judgment, or by leave of court

Answer 53

plaintiff may seek default judgment if defendant fails to defend (e.g., no response to complaint or action by defendant) A default judgment will have a preclusive effect if the court had jurisdiction (SMJ + PJ). − States vary as to effect of preclusion a default judgment is given, BUT: ▪ A state court MUST give a judgment in a federal diversity action the same effect it would give a state court judgment. ▪ A default judgment bars a party from asserting compulsory counterclaims that could have been raised in the original action.

Answer 54

precludes a party from subsequently relitigating any claim that was or could have been raised. Elements – Claim Preclusion may be invoked when: 1) Parties are identical or in privity; 2) Prior judgment was rendered by a court of competent jurisdiction; 3) Final Judgment on the merits in the prior action; AND 4) Same claim was involved in both actions (claim arises out of the same transaction or occurrence). Privity – exists when the non-party has a legally recognized relationship with the original party and would be bound by a judgment against the original party.

Answer 55

[CA] “Primary rights” jurisdiction (traditional): A “cause of action” is based on definable rights (e.g., car collision may give rise to two claims based on personal injuries and property damage) e.g. if you sue someone because they hit your car for damages to the car, you can later sue for your personal injuries as well and NOT be claim precluded because they are two different primary rights (property damage vs. personal injury). Federal, it WOULD be claim precluded because they're from the same transaction/occurren

Answer 56

precludes a party from attempting to retry an issue if there has been a final judgment on the merits by a court of competent jurisdiction EVEN IF the parties are different! Elements – Issue Preclusion may be invoked when: 1) Valid and final judgment was rendered in the first action; 2) Issue is identical to the issue decided in the prior action; 3) Issue was actually litigated, determined, and essential in the prior action; AND 4) Party against whom enforcement is sought had a full and fair opportunity to litigate the issue in the prior action. *Generally, a non-party to a prior action MAY assert issue preclusion.

Answer 57

Final Judgment Rule – A federal appellate court can only hear an appeal from a final judgment on the merits (unless an exception applies). Final Judgment / Decision is one which: 1) Ends the litigation on the merits (ALL claims are resolved); AND 2) Leaves nothing for the court to do but execute the judgment. Filing – an appeal MUST be filed within 30 days after entry of the judgment. EXCEPTIONS to Final Judgment Rule: 1) Rule 54(b) Exception 2) Statutory Exceptions 3) Certified Appeal Exception 4) Collateral Order Doctrine 5) Writs of Mandamus & Prohibition 6) Pendent Appellate Jurisdiction 7) Certification of Class Action Rule 54(b) Exception – an immediate appeal is allowed when: 1) Action has multiple parties or multiple claims; 2) Court directs final judgment for some of the claims or parties; AND 3) Court expressly determines that there is no just reason for delay of an appeal. Statutory Exceptions – can immediately appeal orders for: (i) injunctions, (ii) receiverships, (iii) possession of property, (iv) liability in an admiralty action, and (v) patent infringement orders that are final except for an accounting. Certified Appeal Exception – an immediate appeal is allowed when: 1) A federal district court judge certifies certain grounds for immediate appeal; AND 2) The Court of Appeals agrees to permit the appeal. *Application for the appeal must be made within 10 days after entry of the order. Collateral Order Doctrine – allows an immediate appeal if the interlocutory order: 1) Conclusively determines the disputed question; 2) Resolves an important issue that is separate from the merits of the action; AND 3) Is effectively unreviewable on appeal from a final judgment. Writs of Mandamus & Prohibition – allows an immediate appeal if there is an abuse of authority by a trial court. − Issued only in exception circumstances. − Cannot be used to correct an ordinary error. Pendant Appellate Jurisdiction – A party may seek to have a non-final order reviewed along with another appealable order currently pending before the appellate court when: a) A non-appealable decision is inextricably intertwined with an appealable decision; OR b) Review of the non-appealable order is necessary to ensure a meaningful review of the appealable order. Certification of Class Action – an order granting/denying class-action certification may be appealed when: 1) A petition for permission to appeal is filed within 14 days after entry of the order; AND 2) The Court of Appeals agrees to hear the appeal.

Answer 58

1. Renewed motion for JMOL 2. Motoin for new trial (de novo): Must be filed w/in 28 days ([CA] 15) of judgment. 3. Motoin to alter or amend (reconsider) a final judgment: based on new evidence, change in law, clear error of law or fact, or to prevent injustice must be brought w/in 28 days of order. Otherwise, seek relief from judgment or appeal 4. Motoin for relief from judgment: based on mistake, fraud, misconduct must be filed w/in reasonable time up to 1 yr

Answer 59

Grds. sofort Aber: **Automatic stay of judgment:** Judgments are not enforceable for 30 days after entry (except injunctions), außerdem: Ct may in its discretion stay execution of judgment while post-trial motion is pending, for security of opposing pt

Answer 60

**1. Timing:** 30 days (CA 60 days) of final judgment or order based on timely JNOV, imemr 60 days if U.S. is party to the action **2. Gegenstand des reviews**: only final orders and final judgments of entire case on its merits, interlocutory orders grds. nicht, Ausn. s.u. **3. Standards of review bzw. Fehler**: (1) Matters of law – de novo review (appellate court’s judgment substitutes trial judge’s), e.g. Includes when damages excessive o. jury instr. that put burden of proof on wrong pt (2) Findings of fact non-jury: – not disturbed unless clearly erroneous. Findings of fact Jury: appeal court affirms unless reasonable persons could not have made that finding (3) Mixed questions of law and fact – de novo review / clearly erroneous review if factual issues predominate (4) Discretionary matters (rulings in trial judge’s discretion, e.g., leave to amend) – abuse of discretion

Answer 61

1. **Interlocutory orders reviewable as of right**, including injunctions, appointments of receivers, orders affecting possession of property, and certain federal cases (admiralty, patent infringement) **2. Collateral orders:** A aappeals court can review a final order on a claim or issue that is separable and distinct (collateral) from merits of main suit and is too important to require deferring appellate review, or if effectively unreviewable on appeal from a final judgment (disposition of that order affects rest of action) (e.g. Lack of SMJ. If not allowed to appeal district ct’s ruling, effectively unreviewable until final judgment. It would waste judicial resources if plaintiff waited for final judgment to raise the issue) **3. Interlocutory Appeals Act:** Review is *discretionary* and available based on trial judge’s certification. Appealing party must file petition within 10 days of an interlocutory order, with a certification **4. Partial judgment**: Trial court may enter a final order as to some of multiple claims or parties in an action. This order is appealable only on express determination that there was no just reason for delay of judgment **5. Certification of class actions:** Trial court’s grant/denial may be appealed within 14 days of order, discretionary review

Civil Procedure Flashcards

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