Civil Procedure

Question 1

Personal jurisdiction requires that the defendant be ________ to the forum state’sjurisdiction, and that the defendant be _______________.

Answer 1

amenable; served with proper notice

Question 2

Amenability to personal jurisdiction is governed by the ____________ , subjectto the limits of the _____________ of the United States Constitution.

Answer 2

forum state’s law; due process clause

Question 3

Pennoyer v. Neff described three bases for state jurisdiction over persons andthings. They are: a.___________: jurisdiction over the personb. _______: jurisdiction over interests in propertyc. _____________: jurisdiction over seized property, where plaintiff’s claim isunrelated to the seized property.Note that quasi in rem jurisdiction is arguably unconstitutional after Shafferv. Heitner.

Answer 3

a. In personamb. In remc. Quasi in rem

Question 4

Pennoyer based its jurisdictional formula on ________ over persons and propertywithin its borders.

Answer 4

state power

Question 5

Under Pennoyer’s in personam jurisdiction, a judgment in plaintiff’s favor—would be _______ in all states—for the _________ of damages—may be ______________ until fully collected

Answer 5

bindingfull amountenforced repeatedly

Question 6

Under Pennoyer’s in rem jurisdiction, a judgment in favor of plaintiff—affects ______________ in a res (both ____ and __________ to the lawsuit)—does not result in a ______________— does not require ____________ outside the forum

Answer 6

everyone’s interestsparties; nonpartiesmoney judgmentenforcement

Question 7

Under Pennoyer’s quasi in rem jurisdiction, a judgment in plaintiff’s favor:—entitles plaintiff to the _________________—is not a ____________________—is not ____________________________—may not be enforced __________________—may not be enforced __________________

Answer 7

property attached for jurisdictionpersonal judgmentenforceable against any other propertymore than onceoutside the forum

Question 8

Another type of jurisdiction not discussed in Pennoyer is ______, which involves thestate’s authority to adjudicate such matters as divorce, adoption, citizenship andmental competence.

Answer 8

status

Question 9

__________________________ altered Pennoyer’s rule for personaljurisdiction, replacing the concept of ___________ with the new standards of_____________ and ________ provided by the “minimum contacts test.”

Answer 9

International Shoe Co. v. Washingtonstate powerreasonablenessfairness

Question 10

The current test for amenability, following International Shoe and other cases,does not require the minimum contacts test if the defendant satisfies any one of thefour “traditional” bases for in personam jurisdiction. Those bases are:_________ in the forum state_________ to jurisdiction________ of objection to jurisdiction______________ in the forum when served

Answer 10

ResidenceConsentWaiverPhysical presence

Question 11

Consent to jurisdiction has two forms, _______ consent and ________ consent. _________________ are an example of express consent, and __________________ are an example of implied consent.

Answer 11

expressimpliedForum selection clausesnon-resident motorists statutes

Question 12

If none of the traditional bases are present, a state may only exercise in personamjurisdiction over defendants who have minimum contacts with the state. The twocategories of minimum contacts are _________________ and __________________.

Answer 12

specific jurisdictiongeneral jurisdiction

Question 13

__________________ is where the lawsuit arises from or relates to the nonresidentdefendant’s contacts with the forum state. _______________________ is where the lawsuit is unrelated to the nonresident defendant’s contacts with the forum state.

Answer 13

Specific jurisdictionGeneral jurisdiction

Question 14

Specific jurisdiction has four contacts tests, which are that the defendanta. __________________ itself of the benefits and protections of forum law;b. should have __________ that its activity would subject it to jurisdiction in theforum state;c. could __________________ being haled into court in the forum state;d. placed its product in the __________________ and could foresee that it would be used in the forum state.

Answer 14

purposefully availedforeseenreasonably anticipatestream of commerce

Question 15

General jurisdiction has one contact test, which is that it has __________________ with the forum state.

Answer 15

continuous andsystematic contacts

Question 16

If the defendant has no contacts with the forum (and does not meet one of the fourtraditional bases of jurisdiction), then there is _______________________ over thatdefendant. If, on the other hand, defendant does have specific or general contacts,then the court must consider the ______________________. This is abalancing test with five factors, which are:—______________________—____________ interest in convenient and effective relief—__________________________—the ______________________ in furthering fundamental social policies—the ___________________ in effective resolution of controversies

Answer 16

no personal jurisdictionfair play and substantial justice testburden on the defendantplaintiff’sthe forum state’s interestshared interests of several statesjudicial system’s interest

Question 17

The due process requirement for notice to defendant is stated in Mullane v. CentralHanover. Notice is constitutionally sufficient if it is “__________________, underall circumstances, to apprise _________ parties of the pendency of the action, andafford them an _________________ and _____________________.”

Answer 17

reasonably calculatedinterestedopportunity to appearpresent objections

Question 18

An abbreviated version of the Mullane notice rule is that __________ requiresnotice and an _____________________.

Answer 18

due processopportunity to be heard

Question 19

Which rule of the Federal Rules of Civil Procedure deals with initially notifyingthe defendant of the lawsuit? _______

Answer 19

Rule 4

Question 20

Under Fed. R. Civ. P. 4, the two primary methods for service of process on acompetent adult are:a. ___________________ to defendant;b. leaving copies at _________________ with a person of _____________________.

Answer 20

personal deliverydefendant’s residencesuitable age and discretion

Question 21

In most cases, the federal method of service on defendants outside the district is bythe _________ statute of the state in which the federal court sits.

Answer 21

long arm

Question 22

The purposes of venue rules are:(a) __________ to defendant(b) _______________ of caseload within the forum state

Answer 22

fairnessgeographic allocation

Question 23

The federal statute for general venue provisions is _______________.

Answer 23

28 U.S.C. 1391

Question 24

The purpose of forum non conveniens is to move _____________________based on fairness and convenience.

Answer 24

cases from one forum to another

Question 25

Subject matter jurisdiction refers to the court’s authority to adjudicate based on thetype of case and in some cases, _____________________________.

Answer 25

the dollar amount in controversy

Question 26

Federal courts have subject matter jurisdiction over two types of cases:—_____________—___________________

Answer 26

federal questiondiversity of citizenship

Question 27

The statute dealing with general federal question jurisdiction is _____________.It provides that federal courts have jurisdiction over any _____________________________________ of the United States.

Answer 27

28 U.S.C. § 1331case or controversy arising under the Constitution, laws, or treaties

Question 28

In addition to the general federal question provisions in 28 U.S.C. § 1331, there arespecific statutes on federal question jurisdiction, including actions against (namethree): ________, __________, _________

Answer 28

foreign states, admiralty, patents, civil rights, consuls, internal revenue, andUnited States as plaintiff or defendant

Question 29

Diversity jurisdiction is covered by ___________. That statute provides thatfederal courts have subject matter jurisdiction over claims between _________________, or between _____________ and _____________, where the amount incontroversy _________________.

Answer 29

28 U.S.C. § 1332citizens of different statesstate citizensforeign citizensexceeds $75,000

Question 30

Although the Constitution requires only ______ diversity, 28 U.S.C. § 1332 requires_________ diversity. This means that all plaintiffs must have different citizenshipthan all defendants.

Answer 30

partialcomplete

Question 31

For diversity purposes, a corporation has two citizenships, which are:a. ___________________b. ______________________

Answer 31

state of incorporationprincipal place of business

Question 32

For diversity purposes, partnerships have the citizenship of _______________.

Answer 32

all the partners

Question 33

The amount in controversy is determined by plaintiff’s ________________.

Answer 33

good faith pleading

Question 34

In achieving the amount in controversy, may Plaintiff aggregate (answer “yes” or”no”):a. all of Plaintiff’s claims against one defendant? _____b. alternate theories of recovery for the same wrong? _____c. claims of different plaintiffs? _____d. claims against different defendants? ____

Answer 34

YesNoNoNo

Question 35

In some cases, a related claim that lacks diversity or federal question jurisdictionmay be included. This is called ______________.

Answer 35

supplemental jurisdiction

Question 36

Federal courts traditionally abstain from ___________, _________ and __________________.

Answer 36

family lawprobatestate criminal proceedings

Question 37

If plaintiff has filed his action in state court, and jurisdiction is proper in federalcourt, defendant may remove the case to federal court. This is done by filing a________________ in federal court, attaching a copy of ___________________and _____________ to the state court and all parties.

Answer 37

Notice of Removalall state court pleadingsgiving notice

Question 38

If there is a ___________ defect in the removal, the case must be remanded to state court no matter when the objection is made.

Answer 38

jurisdictional

Question 39

If there is a __________ defect in the removal, the case must be remanded to state court if a ______________________.

Answer 39

proceduralproper and timely objection is filed

Question 40

State court subject matter jurisdiction is governed by____________.

Answer 40

state law

Question 41

In state courts, subject matter jurisdiction is designated by ___________ and/or________________.

Answer 41

type of casedollar amount

Question 42

In Texas, state district courts have ______________ over all claims of ______ or more in controversy.

Answer 42

general jurisdiction$500

Question 43

Federal courts have ___________ jurisdiction over patent claims. Federal and state court share ____________ jurisdiction over _____________________.

Answer 43

exclusiveconcurrentfederal civil rights actions

Question 44

A court has ___________ jurisdiction if it is the required forum at the beginning of thecase. A court has _____________ jurisdiction if it may adjudicate a case only after it has been heard in a lower court.

Answer 44

originalappellate

Question 45

A Texas state district court has ________ jurisdiction over any dispute involving$500 or more, and __________ jurisdiction over appeals from Texas state agencydecisions.

Answer 45

originalappellate

Question 46

A federal district (trial) court has _________ jurisdiction over appeals from federaladministrative agency decisions.

Answer 46

appellate

Question 47

The United States Supreme Court has _________ jurisdiction over disputes betweenstates.

Answer 47

original

Question 48

The Rules of Decision Act provides that “the ___________________, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as______________ in civil actions in the courts of the United States, in cases where they apply.”

Answer 48

laws of the several states rules of decision

Question 49

________________ interpreted the Rules of Decision Act to require federal courts to apply the general _______________ in cases where state law applied.

Answer 49

Swift v. TysonAmerican common law

Question 50

Erie Railroad Co. v. Tompkins reversed Swift v. Tyson, holding that when state law applies in federal court, the federal court must apply _________________________________.

Answer 50

the law of the state in which that federal court sits.

Question 51

____________________ coined the “____________________,” which provides that the ______ Doctrine mandates state law only where it affects substantive rights that are potentially outcome determinative.

Answer 51

Guaranty Trust v. Yorkoutcome determinative testErie

Question 52

___________________ modified the _________________________, holding that the court should____________________ in the case to determine which interests were stronger. _____ further held that one factor of the balancing test is whether the state law in question is __________________ outcome determinative. Thus, _____ gives more importance to state laws that absolutely change the outcome of the case.

Answer 52

Byrd v. Blue Ridgeoutcome determinative testbalance state and federal interestsByrdabsolutely or definitivelyByrd

Question 53

To determine the content of state law in federal court, the Erie Doctrine directs that the court look to ___________ and __________________________. Persuasive (but not binding) authority is found in _________________ and _______________. Erie also allows courts to make an ____________ as to state law.

Answer 53

state statutesdecisions from the state’s highest courtlower state appellate courtsfederal court opinions on state laweducated guess

Question 54

The Rules Enabling Act (28 U.S.C. § 2072) provides the United States Supreme Court may enact the______________________, provided that no rule may ____________________ any substantive right.

Answer 54

Federal Rules of Civil Procedureabridge, enlarge or modify

Question 55

The most prominent Rules Enabling case is _____________, which resolves the conflict between the Rules Enabling Act and the _______________.

Answer 55

Hanna v. PlumerErie Doctrine

Question 56

_______ v. Plumer also provides the current version of the ____ Doctrine, holding that if there is no ___________________ on point, then apply the Byrd test subject to the __________________.

Answer 56

HannaErieFederal Rule of Civil Proceduretwin aims of Erie

Question 57

Choice of law is the process by which courts deter mine which _______________ law will be applied in a case.

Answer 57

state’s or nation’s

Question 58

Choice of law rules may be __________________.

Answer 58

statutory or common law

Question 59

One example of a choice of law statute is Texas Civil Practice and Remedies Code § 71.031, which provides that in wrongful death actions the law of the state _______________ will govern.

Answer 59

where the death occurred

Question 60

One example of a common law choice of law rule is the Texas case of Duncan v. Cessna, which holds that Texas courts will use the “_________________” to choose the governing law. This rule applies except where there is a ___________________, or where the action is based on contract that contains a ____________________.

Answer 60

most significant relationship teststatutory choice of law rulevalid choice of law clause

Question 61

In federal courts, choice of law for non-federal-question cases is controlled by the choice of law rules of ________________________.

Answer 61

the state in which the federal court sits

Question 62

In federal court, Plaintiff’s initial pleading is called a _________. It must contain:a. an allegation of ____________________b. a short and plain ________________ showing that the pleader is ____________c. a demand for ___________

Answer 62

complaintsubject matter jurisdictionstatement of the claimentitled to reliefjudgment

Question 63

In federal court, defendant’s answer must respond to each paragraph of plaintiff’s complaint with one of the following:a. ___________b. ________c. statement that defendant___________________

Answer 63

admissiondenial lacks sufficient knowledge to respond

Question 64

In addition to the foregoing, defendant may plead affirmative defenses. If defendant fails to plead these, they are waived. Name three examples:–_______________–_______________–________________

Answer 64

— contributory negligence— assumption of risk— fraud— statute of limitations— discharge in bankruptcy— estoppel— failure of consideration— payment— release— res judicata— statute of frauds

Question 65

F.R.C.P. 11 requires that an attorney or pro se party sign each pleading, which certifies that he or she has made a _____________, and that the pleading is (1) not being presented for any ________________; (2) ___________ or a _____________ for the extension, modification, or reversal of existing law or the establishment of new law; (3) supported by ___________, or will likely be after a reasonable opportunity for discovery. _____________ must be warranted on the evidence or based on a reasonable lack of information or belief.

Answer 65

reasonable inquiryimproper purposewarranted by existing lawnonfrivolous argumentevidenceFact denials

Question 66

If plaintiff’s initial pleading is so vague and ambiguous that defendant cannot reasonably be expected to respond, defendant may file a ____________________ under F.R.C.P. 12(e). This must be filed ________ the Answer.

Answer 66

Motion for More Definite Statementbefore

Question 67

Defendant may use a ___________ under F.R.C.P. 12(f) to challenge any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.

Answer 67

Motion to Strike

Question 68

Defendant should always challenge plaintiff’s Complaint by a ______________ for ____________, under F.R.C.P. 12(b)(6). This allows the court to test the _____________ of plaintiff’s claim.

Answer 68

Motion to Dismiss Failure to State a Claimlegal sufficiency

Question 69

Defendant may challenge _____________ at any time. Defendant must challenge ________________ and ______ at the first opportunity or waive them.

Answer 69

subject matter jurisdictionpersonal jurisdictionvenue

Question 70

Two types of counterclaim are _________ and ____________. A ____________ counterclaim is one related to plaintiff’s claim. If it is not asserted, it is _______.

Answer 70

compulsorypermissivecompulsorywaived

Question 71

A third party claim is one brought by a defendant against a ___________. It is based on __________ liability. _________ may also bring a third party claim in defense of a counterclaim.

Answer 71

new partyderivativePlaintiff

Question 72

Pleadings may be amended to add new _____________, and new ___________________.

Answer 72

factual allegationsclaims or causes of action

Question 73

If a pleading adds a new claim that is barred by the statute of limitations, that new claim will be allowed if it is related to the original claim and if the new claim would have been timely if filed with the original claim. This is the “_____________________” in Fed. R. Civ. P. 15(c).

Answer 73

doctrine of relation back

Question 74

The doctrine of relation back also allows a plain tiff to add a new defendant after the statute of limitations has run if the _____________ in Rule 15(c) is satisfied.

Answer 74

balancing test

Question 75

If plaintiff presents evidence on an unpleaded claim during trial and defendant fails to object, that unpleaded claim will be valid if the court grants plaintiff’s _______________________.

Answer 75

Motion for Trial Amendment

Question 76

One exception to the liberal federal pleading rule (“short plain statement of the claim”) is that allegations of _____ must be plead with particularity.

Answer 76

fraud

Question 77

Many states have abandoned code pleading, replacing it with ______ pleading requirements based on the __________________.

Answer 77

notice Federal Rules of Civil Procedure

Question 78

Texas still requires plaintiff to plead ____________. However, it may not be necessary in each case to plead every ________.

Answer 78

causes of actionelement

Question 79

Many state courts still permit a _________, with which defendant challenges the _____________ of plaintiff’s claim. This is similar to F.R.C.P. 12(b)(6) Motion to Dismiss for Failure to State a Claim. Texas does not permit a demurrer.

Answer 79

demurrerlegal sufficiency

Question 80

F.R.C.P. 13(a) requires defendant to assert any opposing claim against plaintiff that ________________________ that is the subject matter of plaintiff’s claim. This is known as a ______________________. If defendant fails to assert such a claim, he is ______ from raising the same claim in a later lawsuit.

Answer 80

arises out of the transaction or occurrencecompulsory counterclaimbarred

Question 81

Exceptions to the requirement of asserting the claims discussed in the preceding question include:a. where defendant _____________ of plaintiff’s claims prior to filing an Answer.b. where the counterclaim has not _____ or ________.c. where the counterclaim requires an additional party over whom the court ________________.d. where the counterclaim is the subject of ________________.e. where plaintiff’s action is not based on ______________ over defendant (i.e. an _____ action).

Answer 81

wins a dismissalarisenmaturedlacks personal jurisdictionanother pending actionPersonal jurisdictionin rem

Question 82

Permissive joinder allows any party to join ____________ against ________________.

Answer 82

unrelated claimsexisting parties

Question 83

In spite of the liberal rules for permissive joinder, all crossclaims and third party claims must be _________ the plaintiff’s claim. However, once a party has properly asserted a crossclaim or third party claim, that party may join an __________ claim .

Answer 83

related tounrelated

Question 84

Compulsory parties are those who must be joined if possible. F.R.C.P. 19 addresses this issue in two parts:a. Rule 19(a) identifies _____________, who must be joined if feasible;b. Rule 19(b) addresses what must happen when___________________.

Answer 84

required parties joiner is not feasible

Question 85

F.R.C.P. 20 governs permissive joinder of parties. It permits ________________ to join in one lawsuit ifa. each plaintiff asserts any right to relief arising out of the ________________, or series of transactions or occurrences, ____b. “any question of _________ common to all these persons will arise in the same action.”Rule 20 also permits ______________ to ________________ if they meet this test.

Answer 85

multiple plaintiffssame transaction, occurrenceANDlaw or fact one or more plaintiffsjoin multiple defendants

Question 86

Two other requirements for naming parties to a lawsuit are:a. _______________b. ____________

Answer 86

Real Party in InterestCapacity

Question 87

Procedural devices for adding multiple parties include:_____________________________________________________________________________

Answer 87

a. Impleader, or Third Party Actionb. Interpleaderc. Interventiond. Class Actione. Shareholders’ Derivative Suit

Question 88

The scope of discovery, both in Texas and federal courts, is all matters “not privileged” that are “________________________.”

Answer 88

“reasonably calculated to lead to the discovery of admissible evidence.”

Question 89

The forms of discovery are: ____________________________________________________________________________________________________________________

Answer 89

——interrogatories–requests to produce or inspect —subpoenas duces tecum—oral depositions—written depositions—physical and mental examinations —requests for admission

Question 90

Privileges shield information from discovery, such as: —_____________–______________–______________Discovery exemptions have a similar effect. These include —______________________—__________________(in Texas state courts)

Answer 90

–attorney-client privilege—spousal privilege —doctor-patient privilege—attorney work product exemption—client investigatory exemption

Question 91

The privileges and exemptions listed above must be raised before the deadline for responding to that discovery request or they are ________.

Answer 91

waived

Question 92

In addition to waiver, the privileges and exemptions may have exceptions that _________________.

Answer 92

permit or require disclosure

Question 93

Devices for dismissal include:a. _________ Dismissalb. ____________ Dismissal for failure to prose cute, failure to comply with court rules, or in a non-jury trial, failure to prove a claim or defense.c. Dismissal for _________________

Answer 93

VoluntaryInvoluntaryFailure to State a Claim

Question 94

A Motion for Judgment on the Pleadings may be filed by ________________. In deciding the motion, the court will look only to the _____________ pleadings to determine if that pleading has stated a ______ or __________.

Answer 94

either plaintiff or defendantnonmovant’sclaimdefense

Question 95

F.R.C.P. 56 provides that for summary judgment, the burden is on the movant to show that:a. there is ________________, andb. movant is _________________.

Answer 95

no genuine issue of material factentitled to judgment as a matter of law

Question 96

One major difference between a motion for summary judgment and motions under Rules 12(b)(6) [failure to state a claim] and 12(c) [judgment on the pleadings] is that a summary judgment motion may include _________. In addition, the court is entitled to examine other evidence in the ____________, such as discovery on file with the court.

Answer 96

evidencecourt record

Question 97

For summary judgment under Rule 56(b) (in favor of the party not having the burden of proof at trial), the movant may meet the first part of the burden (no dispute of material fact) by:a. _________________________b. ________ portions of nonmovant’s essential fact allegations (Adickes)c. pointing to the record, after a ________________, and alleging that non movant lacks sufficient evidence to support an _______________ of her case, upon which nonmovant has the ________________. (Celotex)

Answer 97

assuming all of nonmovant’s fact allegations to be truenegatingreasonable time for discoveryessential elementburden of proof at trial

Question 98

For summary judgment under Rule 56(a) (in favor of the party bearing the burden of proof at trial), the movant must meet the burden of proof by ____________________ of the claim or defense.

Answer 98

offering evidence to establish each element

Question 99

Once the movant has met the initial burden under Rule 56(a) or 56(b), the burden shifts to ___________, who may defeat the motion for summary judgment by:a. _______________, orb. _____________________.

Answer 99

nonmovantcreating a fact disputeshowing that the law does not entitle movant to judgment

Question 100

In deciding the motion for summary judgment, the court must view the evidence in the light______________________.

Answer 100

most favorable to the nonmovant

Question 101

To create a fact dispute that will prevent summary judgment, nonmovant must offer opposing evidence on which ____________________. If reasonable minds could not differ, then there is no fact dispute, and the judge may render summary judgment.

Answer 101

reasonable minds could differ

Question 102

Anderson v. Liberty Lobby emphasizes that the question before the court on a motion for summary judgment is whether there is _______________ to withstand a motion for ______________, that is, sufficient evidence to send the case to a jury.

Answer 102

sufficient evidencedirected verdict

Question 103

If a party lacks evidence to respond to a motion for summary judgment, that party may seek _______________ under Rule 56(f).

Answer 103

additional time

Question 104

In federal court, the trial issues of law and fact are governed by a Pretrial Order. In state courts that do not use a ______________, the issues of fact and law are governed by the _______________.

Answer 104

Pretrial Orderlatest pleadings

Question 105

The process of questioning prospective jurors is called ______.

Answer 105

voir dire

Question 106

There are two kinds of challenges to prospective jurors:_____________________ are based on the court’s ruling that reasonable cause exists to excuse that person from jury service based on a possibility of prejudice against one of the parties, or some other bias in the case.__________________________ allow the parties a limited number of “strikes” to excuse prospective jurors for no stated reason.

Answer 106

Challenges for causePeremptory challenges

Question 107

Asking the court to order all witnesses other than parties to leave the room is known as _____________________.

Answer 107

invoking the rule

Question 108

A defendant may move for the ________________________ if he has the burden of proof on all the remaining issues.

Answer 108

right to open and close

Question 109

Under the Seventh Amendment to the United States Constitution, all parties have a right to trial by jury in _____________________ exceeding ______________ in controversy.

Answer 109

cases at common law twenty dollars

Question 110

Parties have no constitutional right to trial by jury in _____ cases. However, the states may grant the right to jury trial in equity cases.

Answer 110

equity

Question 111

The right to jury trial is presumed to exist under a federal statute unless that statute expressly _________ the right.

Answer 111

excludes

Question 112

If a party fails to request a jury within the time allowed by _____________, the right to jury trial is__________ .

Answer 112

forum lawwaived

Question 113

After all evidence and arguments have been presented, the judge describes the applicable law to the jury in ________________. If the judge instructs the jury incorrectly on an issue of law, this is _______ even though it applies to the jury’s function.

Answer 113

jury instructionsappealable

Question 114

If a jury is not requested, the court conducts a non-jury trial in which the judge becomes the _______________.

Answer 114

trier of law and fact

Question 115

As of December 1, 1991, the Federal Rules of Civil Procedure were amended so that “directed verdict” and “judgment notwithstanding the verdict” are both known as “________________.”

Answer 115

judgment as a matter of law

Question 116

In a jury trial, at the close of plaintiff’s evidence, defendant may move for a ______________________ (the old directed verdict) under Fed. R. Civ. P. 50(a). The judge may grant it if, viewing the evidence in the _________________________, a reasonable jury could not find for plaintiff.

Answer 116

judgment as a matter of lawlight most favorable to the plaintiff

Question 117

The judge should _____ the motion for directed verdict if:a. a ________________ could find in plaintiff’s favor, orb. the judge wishes to let the case proceed and consider the question later.

Answer 117

deny reasonable jury

Question 118

If the motion for judgment as a matter of law (or directed verdict) is denied, defendant presents his case. At the close of defendant’s evidence, ________________ may move for judgment as a matter of law, which may be granted if, looking at all the evidence favorable to the ____________, and only the unquestionable evidence in _________ favor, a reasonable jury could only find for movant.

Answer 118

plaintiff and defendantnonmovantmovant’s

Question 119

After the jury has returned its verdict, the losing party may move for ________________ (the old judgment notwithstanding the verdict, or JNOV) under Fed. R. Civ. P. 50(b) anytime within __days after entry of judgment. However, movant must have filed a motion for ________________ during the trial as a prerequisite.

Answer 119

judgment as a matter of law28 judgment as a matter of law

Question 120

After trial, the losing party may file a Motion for New Trial within _____________ days after entry of Judgment. The trial judge may grant a new trial on any of the following grounds:—__________—________________—___________—result contrary to the ___________________

Answer 120

twenty-eight (28)trial errornewly discovered evidencemisconductgreat weight of the evidence

Question 121

The Court of Appeals may reverse the trial judge’s granting of a Motion for New Trial only if there was ___________ to support the granting of a new trial.

Answer 121

no evidence

Question 122

Courts may grant a new trial, conditioned on remittitur or additur. ___________ orders a new trial unless plaintiff accepts a lesser amount of damages. _________ orders a new trial unless defendant agrees to pay extra damages. Federal law prohibits _______ as a violation of the right to jury trial.

Answer 122

RemittiturAdditur additur

Question 123

A new trial may be granted for newly discovered evidence if the following conditions are met:— the new evidence was discovered ______________— the new evidence was not discoverable by _________________ prior to the first trial—the new evidence is not ____________—the new evidence will ___________________

Answer 123

after the first trialreasonable diligencemerely cumulativeprobably produce a new result

Question 124

An exception to the “reasonable diligence” requirement in the prior question is that even if the new evidence was discoverable by reasonable diligence, a new trial will be granted if to do otherwise would be a __________________.

Answer 124

grave miscarriage of justice

Question 125

Under F.R.C.P. 60(a), a party may correct clerical mistakes and other _______________ in a judgment. Under F.R.C.P. 60(b), a party may ask for a new trial based on ____________________________

Answer 125

inadvertent errorsnewly discovered evidence or fraud.

Question 126

A party may also challenge a final judgment by _______________ alleging _________________ or ____.

Answer 126

filing a new actionnewly discovered evidencefraud

Question 127

Thus there are three methods for challenging a judgment based on newly discovered evidence or fraud:a. ______________ (Rule 59)b. ___________________(Rule 60)c. ______________One principle difference between these three is the ____ allowed for filing.

Answer 127

Motion for New TrialMotion for Relief from Judgment A New Lawsuit time

Question 128

Appellate courts primarily review questions of law. In order to receive appellate review, there must be plain error that was ______________ by a ______________.

Answer 128

properly preservedtimely objection

Question 129

Appellant may preserve error by objecting at the time of the error and making known to the court:a. the ____________, or the _______________, andb. the ________ therefor.

Answer 129

action desiredobjection to the actiongrounds

Question 130

Appellate courts may also review the jury’s decision, but only as to the ________________, which is also a question of ____.

Answer 130

sufficiency of the evidencelaw

Question 131

___________ courts may review the trial judge’s Findings of Fact in a _________. The standard of review is _____________.

Answer 131

Appellatenonjury trialclearly erroneous

Question 132

The four procedures for appearing before the Supreme Court are:a. ______________ 28 U.S.C. §§ 1254(1), 1257b. ___________ 28 U.S.C. § 1254(2)c. __________________ 28 U.S.C. § 1253d. _______________ U.S. Const., Art. III 28 U.S.C. § 1251

Answer 132

Writ of CertiorariCertificationDirect Appeal from decisions of three judge courtsOriginal Jurisdiction

Question 133

Preclusion is the doctrine that limits the relitigation of issues and claims. The two kinds of preclusion are:—_______________—______________

Answer 133

Claim preclusionIssue preclusion

Question 134

Another name for preclusion is “____________.”

Answer 134

res judicata

Question 135

Claim preclusion includes the doctrines of ______ and ____.

Answer 135

merger and bar

Question 136

Merger applies to judgments for________. It provides that a __________ judgment for plaintiff (a) prevents plaintiff from suing again, except in a collection action on the judgment, and (b) bars defendant’s defenses in an action on the judgment.’

Answer 136

Plaintiff.valid and final

Question 137

Bar applies to judgments for _________. It provides that a judgment for defendant _____________________ on the same claim.

Answer 137

Defendantbars another action by plaintiff

Question 138

The-elements of claim preclusion are:_______________________________________

Answer 138

a. same claimb. same partiesc. valid and final judgment

Question 139

Claim preclusion does not apply to certain actions, including:a. Dismissal on grounds of_______, __________, or _________b. ________________c. Where preclusion is ____________d. ____________ courts (in some jurisdictions)

Answer 139

jurisdiction, venue, or party joinderNonsuit without prejudicedenied by statuteSmall Claims

Question 140

Issue preclusion is also known as ___________.

Answer 140

collateral estoppel.

Question 141

Issue preclusion does not apply to whole lawsuits, but to:a. issues of __________b. that were __________c. that ended in a _______________,d. where determination of that issue was __________ to the judgment, ande. where the judgment is ________________________

Answer 141

law or factactually litigatedvalid and final judgmentessentialbinding on the party being estopped

Question 142

Issue preclusion no longer requires _____________. This is also known as “offensive collateral estoppel.” It means that a person who was not a party to the first lawsuit can use the results of that action against any person who (a) was a ______ and (b) had a ____________________________.

Answer 142

mutuality of partiespartyfull and fair opportunity to litigate

Question 143

The Law of the Case Doctrine is another preclusion device that prevents relitigation of the same issues within___________________ prior to final judgment.

Answer 143

the same lawsuit

Question 144

Until recently, most state courts used code pleading, which required plaintiff to plead _______________ relating to every element of his claim.

Answer 144

ultimate facts