Civil Procedure - Adaptibar

Question 1

Describe “notice pleading”!

Answer 1

Notice pleading refers to a system of pleading requirements that only emphasizes pleadings as a way to notify parties of general issues in a case.

• This allows parties drafting pleadings to state their claims in general terms without alleging detailed facts to support each claim

Question 2

Under the FRCP, what must a complaint contain?

Answer 2

A short and plain statement of the court’s jurisdiction, sufficient factual allegations to allow a district court to find that the claim is plausible, and identification of the relief sought.

Question 3

Do certain “special matters” need to be pleaded with particularity?

Answer 3

YEs, For these “special matters,” notice is necessary for the opponent to be able to prepare for trial.

• They are typically claims that the adversary will not be expecting unless his attention is specifically called to them

Question 4

To show fraud or mistake; conditions of mind, what must a party state with particularity?

Answer 4

The circumstances constituting fraud or mistake. Fraud is considered a special matter that requires a heightened level of notice, including a statement of the circumstances giving rise to the allegation of fraud

• Malice, intent, knowledge, and other conditions may be alleged generally (do NOT need to be detailed specifically)

Question 5

What is the proper way to plead a condition precedent?

Answer 5

It is sufficient to allege generally that all conditions precedent have occurred or been performed.

• BUT when denying that a condition precedent has occurred or been performed, a party MUST do so with particularity

Question 6

Does an official document or official act need to be pled specifically?

Answer 6

No. It suffices to allege that the document was legally issued or the act legally done.

Question 7

What happens once a final judgment on the merits has been rendered on a particular cause of action?

Answer 7

The claimant is barred by claim preclusion (res judicata) from asserting the same cause of action in a later law suit.

Question 8

What must happen before merger or bar apply?

Answer 8

It must be shown that:

1. The earlier judgment is a valid, final judgment “on the merits”;
2. The cases are brought by the same claimant against the same defendant - it is not enough that the same litigants were also parties in the previous case, it must be the same configuration of parties; AND
3. The same cause of action or claim is involved in the later lawsuit

Question 9

Are strangers bound by claim & issue preclusion?

Answer 9

Generally, no. But there is an exception:

If someone is closely linked enough to a party in the original action that there is a substantive legal relationship between them, that person may be bound by the first result for preclusive purposes, just as if that person had been a party in the original action (privity).

Question 10

Is issue preclusion narrower than claim preclusion?

Answer 10

Yes!

Question 11

What does issue preclusion focus on?

Answer 11

The narrower issue that was litigated and determined in the first case, and that is relevant in the second case.

Question 12

What is required for issue preclusion to apply?

Answer 12

1. The judgment must have been final;
2. The issue must have been actually litigated; and
3. The issue must have been essential to the judgment

Question 13

When do the Federal Rules of Civil Procedure govern over conflicting state rules?

Answer 13

Always, unless it can be found that the Federal Rule at issue was promulgated in violation of the Rules Enabling Act

Question 14

What is the Rules Enabling Act?

Answer 14

This Act authorizes the Supreme Court to prescribe federal procedural rules so long as they do not “abridge, enlarge, or modify any substantive right.

Question 15

Are federal courts sitting in diversity bound only by state statutory law?

Answer 15

No, they are bound by both state common law and state statutory law.

Question 16

Are state statutes of limitations controlling in federal diversity actions?

Answer 16

Yes, they are outcome-determinative (substantive), so state law must apply.

Question 17

Federal Rule of Civil Procedure 15©(1)(A)

Answer 17

This rule specifically provides that federal courts sitting in diversity may use the state law that supplies the limitations statute when that law “allows relation back”

Question 18

Is the jurisdiction of federal courts concurrent with state courts?

Answer 18

Yes. This means that a particular controversy that is litigable in federal court may also be brought in state court.

Question 19

What happens where jurisdiction is concurrent.

Answer 19

The plaintiff makes the initial decision whether to use state or federal court by filing his case; the defendant then may choose to remove or remain under the state court’s jurisdiction.

Question 20

When does the Erie doctrine apply?

Answer 20

When a federal court is sitting in diversity.

• if the court is NOT sitting in diversity, and is exercising federal question jurisdiction, federal law will apply and there is NO NEED to examine applicable state law

Question 21

28 USC 1331

Answer 21

This statute grants federal courts original jurisdiction over federal question cases.

• This extends to all civil actions arising in the US Constitution, laws or treaties of the U.S.
• The federal question must be integral in the plaintiff’s cause of action as set out in a well-pleaded complaint

Question 22

What is remittiur?

Answer 22

A offer for reduction of damages in lieu of a new trial.

Question 23

Can the court simply lower an award given by a jury?

Answer 23

No, it must offer the plaintiff the alternative option of receiving a lower award or a new trial.

Question 24

What is additur and is it allowed in federal cases?

Answer 24

Additur would be offering the defendant the choice of accepting a higher award where the trial judge believes that the jury’s compensatory damages are too low.

• It is NOT allowed in federal cases because it violates the Seventh Amendment

Question 25

What does the Seventh Amendment preserve?

Answer 25

It preserves the right to a jury trial in actions in which legal, NOT equitable, relief is sought.

• P is not entitled to a jury trial when seeking only equitable relief

Question 26

What does the pleading need to include?

Answer 26

The pleadings must contain enough facts to show that the claim is plausible, not merely possible.

Question 27

What does FRCP 56 allow?

Answer 27

It allows either party to file a motion for summary judgment if, from the pleadings, affidavits, and discovery materials, it appears that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

• The party seeking summary judgment has the burden of producing information that clearly establishes there is no factual dispute for a jury to resolve.

Question 28

Are choice-of-law rules considered substantive or procedural?

Answer 28

Substantive

Question 29

What is an embedded federal issue?

Answer 29

Either:

1. A federal law issue that will be central to determining whether a defense asserted or expected to be asserted by the defendant is valid; OR
2. A federal law issue whose resolution will help determine the validity of the plaintiff’s state law claim, even though the direct source of the plaintiff’s claim is state law.

Question 30

If there IS an embedded federal issue, will the case qualify for federal question jurisdiction?

Answer 30

Yes, despite it being a state law claim

Question 31

What is necessary to be successful on an FRCP12(b)(6) motion to dismiss the complaint for failure to state a claim upon which relief can be granted?

Answer 31

The motion MUST demonstrate that even if every fact asserted in the complaint is taken as true, no recovery is plausible under any legal theory.

• Not appropriate when discovery could still show that the claims are supported

Question 32

What is a judgment as a matter of law motion?

Answer 32

It is a motion made by a party, during a trial, claiming that the opposing party has insufficient evidence to reasonably support its case. i.e. no reasonable jury would have a legally sufficient basis to find for the other party

Question 33

What is removal?

Answer 33

It is the defendant’s right to send a case originally filed in state court to the federal district court for adjudication.

Question 34

When is a case removable in a diversity case?

Answer 34

The action is ONLY removable if no defendant is a citizen of the state where the action was originally brought. In other words, only out-of-state defendants may remove diversity cases to federal court.

Question 35

When must a notice of removal be filed in federal court?

Answer 35

Within 30 days after service. In diversity cases, defendants may not remove more than one year after the state action commenced UNLESS the plaintiff somehow acted in bad faith to prevent the defendant from removing the case. (i.e. in a diversity case you have a year, absent any bad faith by the P preventing removal)

Question 36

If a D does not object to any jury instructions, how can his appeal still be successful?

Answer 36

It can only be successful if the instruction affected the defendant’s substantial rights (i.e. plain error)

Question 37

What is the burden of the nonmovant in opposition to a MSJ?

Answer 37

He must:

1. point to specific places in the record showing the fact in question is disputed; OR
2. demonstrate that the movant will not be able to produce admissible evidence to establish the fact

Question 38

Are parties permitted to support a MSJ with their own affidavit?

Answer 38

YEs, as long as their affidavit meets the FRCP requirements of an affidavit. Affidavits must be made with personal knowledge, set forth on facts that would be admissible in evidence, and show that the affiant is competent to testify

Question 39

To raise inadequacy of instructions on appeal, a party who wishes to object to the instructions must do so…

Answer 39

before the jury retires. A party who objects to an instruction or the failure to give an instruction must state on the record the objection, stating distinctly the matter objected to and grounds for the objection

Question 40

May an issue be tried by consent?

Answer 40

Yes, when an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move–at any time even after judgment–to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue

Question 41

What is the standard for a Plaintiff to request a waiver of service?

Answer 41

A plaintiff may request a waiver of service from a defendant if the plaintiff provides notice and a request for the waiver, in writing, along with a copy of the complaint, two copies of a waiver form, and a prepaid method for returning it.

Question 42

May a defendant still refuse to waive service?

Answer 42

Yes, however, if the D refuses waiver and does not show good cause for the refusal, FRCP states that the court must impose on the D expenses later incurred in making service and costs of any motion to collect those service expenses.

Question 43

Do sanctions need to be served in a separate motion?

Answer 43

Yes. The party seeking sanctions must serve a separate motion on the other party, but may not file the motion if the challenged paper, claim or defense is withdrawn or appropriately corrected within 21 days after the service (“safe harbor” period)

Question 44

May a new trial be granted for harmless error?

Answer 44

No, a harmless error is one that does not affect the substantial rights of the party seeking the new trial

Question 45

What is one basis on which the trial judge may order a new trial?

Answer 45

Because of what the judge has concluded to be her own errors committed during trial.

• If a party, witness, or counsel conducts herself improperly, to the extent that there is a substantial risk that an unfair verdict has resulted, the trial judge may grant a new trial.
• More rarely, a new trial may be granted under some circumstances for jury misconduct (which includes subjecting themselves to outside influence and concealing a bias or prejudice during voir dire

Question 46

May a judge unilaterally grant a new trial?

Answer 46

Yes, pursuant to the rules, a federal court is authorized to order a new trial on its own for any reason that would justify granting one on a party’s motion

Question 47

What is offensive non-mutual collateral estoppel?

Answer 47

This means that a party not present in the first lawsuit who is seeking to bind their adversary to a final judgment on an issue from an earlier case against a party who was present in the earlier case.

Question 48

In Parklane the court held that a case-by-case analysis was necessary to determine whether offensive non-mutual collateral estoppel is available. What are the factors of analysis?

Answer 48

1. alignment in the first suit;
2. incentive to litigate;
3. discouraging breakaway suits;
4. multiple plaintiff anomaly;
5. whether there are procedural opportunities available to a party in the second action that were not present in the first which might make a difference in the outcome;
6. whether the issue is one of law or fact; AND
7. whether the defendant in the second action is the government