CIVIL PROCEDURE BLL

Question 1

Under Federal Rule of Civil Procedure (FRCP) 49(b), a judge may require a general verdict supported specific findings of fact. Erroneous verdicts may be set aside if the court believes that the jury did not follow its instructions properly.

Under FRCP 49(b), three scenarios are possible:

(i) if the facts are consistent with the verdict, the verdict will be entered;

(ii) if the findings of fact are inconsistent with the verdict, the judge may:

• enter a judgment consistent with the interrogatory answers, notwithstanding the general verdict;
• direct the jury to deliberate further; or
• order a new trial; OR

(iii) if the answers are inconsistent with each other AND the verdict entered, the judge must send the case back to the jury for further deliberation or order a new trial.

Question 2

FRCP 11 Sanctions

Answer 2

Court may impose sanctions against a party who filed an improper paper. the paper is not presented for any improper purpose (i.e., harassment, delay, etc.);
the legal contentions therein are warranted by existing law or a non-frivolous argument for the modification of existing law or the establishment of a new law;
the allegations and factual contentions either have or upon further investigation or discovery are likely to have evidentiary support; and
denials of factual contentions are warranted on the evidence or, where specified, are reasonably based on a lack of information and belief.

An attorney who fails in this duty may be fined or sanctioned. FRCP 11 sanctions may be invoked by an opposing party’s motion or the court ordered an order to show cause.

Another party may file a motion for a sanction if the other party does not correct or withdraw with 21 days.

Question 3

Removal

Answer 3

Only D can remove a case originally filed in state court to fed court if the case could have been brought in fed court, that is, if there is SMJ (check whether there is FQJ or DJ

i. Removal must be made within 30 of case being removable (after being served notice, pleading, complaint)
1. When a new D joins the case, that D has another 30 days to remove the action
ii. For case based solely on diversity, removal allowed only if no D is a citizen of forum state where suit filed
1. No removal based on diversity after 1 year after brought in state court, unless P acted in bad faith
iii. If a case has a claim that would arise under federal law (at least one claim with FQJ) and also a state-law claim that does not invoke DJ or supp jx, case may still be removed to fed court. Fed court must “sever and remand” state-law claims to state court

exceptions (non-removable): certain claims under the Violence Against Women Act of 1994, some actions against railroads, claims that arise under a state worker’s compensation law where the action was filed.

Question 4

Class action

Answer 4

Class actions are proper if
(1) size is too large to join the parties
(2) deals with common questions
(3) A rep’s issue and claim should be typical with the entire group
(4) A rep should be fair and no conflict of interest

Type of class actions
(1) B1 - impairment of interests
(2) B2 - injunctive relief
(3) B3 - Common question and superior relief

Opting out and notice
B1&B2 - not possible / notice not required (court may direct)
B3 - possible / notice is required (best notice that is practicable under the circumstances)

Diversity
(1) minimum diversity - at least one D should be diverse from P
(2) at least one of the claim > 75K or
(3) more than 100 D, and the total claim > 5 Mil

Remove
- Any D may remove the case from St court to Fed court
- If the P is the state, state officials, or gov entities,&raquo_space; no federal court jx

Appeal
- Can only appeal to the issue of certification within 14 days of order (Judge’s discretion)
- Other issues cannot be appealed (collateral issues)
- To obtain relief from a class action ruling to which an individual has not opted out but that the individual finds unsatisfactory, he must attack one of the four requirements to certifying a class.

Question 5

7th Amendment Jury Trial

Answer 5

Party who wants it must file demand w/ court and serve on pts w/in 14 of service of last pleading directed to jury-triable issues of fact. Demand may be withdrawn if all parties consent (not only demanding party)

i. No demand w/in 14 of pleading = waiver of right. Ct may order jury trial if the waiver was unintentional

No right for jury trial for the equitable proceeding (injunction)
ii. If legal claims (seeking damages) are asserted, other party cannot be denied a jury on the damages issues
iii. If legal + equitable claims in one action, legal claim should be tried first to jury, then equitable claim to court

State Trial
no right to a jury trial in state trials
number of jurors can be vary
verdict dose not need to be unanimous

v. Size: 6-12 jurors. May have fewer than 6 jurors if parties agree
viii. Verdict must be unanimous unless parties agree otherwise

Question 6

Jury Selection

Answer 6

2 ways to dismiss juror
(1) for cause - any bias or connection, unlimited
(2) for peremptory - max 3, for any reason,

BUT cannot dismiss for RACE/GENDER

Balanced pool or jurors
Jury pool must be representative of overall community

Question 7

Judgment as a matter of law (JMOL/directed verdict)

Answer 7

granted to moving party if nonmoving party (NMP) has been fully heard on an issue, and a reasonable jury would not find for NMP on that issue, evidence viewed in light most favorable to NMP

Raised by D after P’s case
Raised by either party at the close of evidence/after both side rest

Question 8

Motion for relief from judgment

Answer 8

based on mistake, fraud, misconduct must be filed w/in reasonable time up to 1 yr

Question 9

Erie Doctrine

Answer 9

Generally, a federal court must use state substantive law and federal procedural rules.

1. Applies only where court has diversity jurisdiction and where the state law that conflicts with a federal rule
   만약 Federal question jx인 경우는 묻고 따지지도 말고 federal law apply
2. 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…
3. If the issue is integral to substantive rights/obligations? If so, apply state law.
   a. “Substantive” law is one that determines “outcome”: statutes of limitations and tolling, choice of law, elements of claim or defense

Venue is the procedural question

State A vs State B
Apply law of the state where the case is being heard

Question 10

Interlocutory Orders

Answer 10

Order given before final judgment. the claim or issue is separable and collateral to the main suit and is too important to require deferring appellate review.
Default: not appealable

Collateral Order Exception (Very narrow exception)
(1) Conclusively determines disputed question
(2) Resolve important issue separate from merits on the case
(3) Not be reviewable on the appeal

Not appealable
JX, improper venue, attorney-client privilege

Review is discretionary and available based on trial judge’s certification
1. Pt must apply w/in 10 days of obtaining certification stating that the interlocutory order involves a controlling question of law where there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. Then 2 of 3 appellate judges must agree to hear the appeal

Question 11

Adding a claim - counter claim

Answer 11

D raises a claim back against P

Compulsory counter claim
single transaction / occurrence
supplement jx (already have the jx)

Permissive couter claim
NOT single transaction/occurrence
needs independent JX

Question 12

Adding a party - joinder

Answer 12

Permissive joinder:
Parties may join as plaintiffs or defendants only if 1) the claim arises out of the same series of transactions and occurrences + 2) common question of fact or law common

Compulsory joinder
Party must be joined or unfair
(1) Necessary party: if not joined, it impairs the interest
if the party cannot join because of the jx problem, the proceeding still proceed
(2) Indispensable party: if not joined, it causes unfair prejudice
if the party cannot join because of jx problem, the proceeding must be dismissed

Misjoinder of parties
Not a ground for dismissing an action. On motion or on its own, the court may at any time, add or drop a party. The court may also sever any claim against a party.

Question 13

adding a party - Impleader

Answer 13

bring in a new, 3rd party D who owes part of all of claim. Like an indemnification

Question 14

adding a party - cross claim

Answer 14

There are multiple Ds already, and one of the Ds brings a claim against another D.
Same transaction / occurrence
Seek for actual damages

Question 15

adding a party - Interpleader

Answer 15

For person holding property (stakeholder) to join all potential claimants in one suit (e.g., life insurance) to decide who is the owner or has the right

Rule 22 interpleader
No national wide services
Complete diversity
75K claims
Not required to deposit money

Section 1335 interpleader (Statutory interpleader)
National wide services
Requires only one claimant diverse from another
500$ or more at stake
Deposit money or bonds

Question 16

Rule 51. Instructions to the Jury; Objections; Preserving a Claim of Error
Primary tabs

Answer 16

(a) Requests.

(1) Before or at the Close of the Evidence (DEFAULT). At the close of the evidence,or at any earlier reasonable time that the court orders, a party may file and furnish to every other party written requests for the jury instructions OR

(2) After the Close of the Evidence. a party may:

(A) file requests for instructions on issues that could not reasonably have been anticipated by an earlier time that the court set for requests; and

(B) with the court’s permission, file untimely requests for instructions on any issue.

b) Instructions. The court:

(1) must inform the parties of its proposed instructions and action on the requests before instructing the jury and before final jury arguments;

(2) must give the parties an opportunity to object on the record and out of the jury’s hearing before the instructions and arguments are delivered;

(3) may instruct the jury at any time before the jury is discharged.

(c) Objections.

(1) How to Make. A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection.

(2) When to Make. An objection is timely if:

(A) a party objects at the opportunity provided under Rule 51(b)(2); or

(B) a party was not informed of an instruction or action on a request before that opportunity to object, then the party objects promptly after learning that the instruction or request

(d) Assigning Error; Plain Error.

(1) Assigning Error. A party may assign as error:

(A) an error in an instruction actually given, and party properly objected; or

(B) a failure to give an instruction, if that party properly requested it and—unless the court rejected the request in a definitive ruling on the record

(2) Plain Error. A court may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights.

Question 17

Motion for Summary Judgment

Answer 17

Summary judgment shall be granted if, from the pleadings, affidavits, and discovery materials on file viewed in light most favorable to nonmoving party, the moving party shows that there is (!) no genuine dispute of material fact exists and the moving party is (!!) entitled to judgment as a matter of law
i. Any party may move any time until 30 days after close of discovery.
ii. Moving party has burden to show prima facie case; burden shifts to NMP to show genuine issue of fact. By demonstrating that (1) no evidence in the record supports the plaintiff’s case or (2) by a showing of affirmative evidentiary support for NMP.

Denial is not appealable
Affidavit must be based on personal knowledge

Question 18

The U.S. Supreme Court has held that, even when the requirements for diversity of citizenship are satisfied, federal courts will not exercise jurisdiction over domestic relations or probate proceedings. Furthermore, lack of subject-matter jurisdiction may be asserted at any time and may not be waived.

Question 19

voluntarily dismiss

Answer 19

P voluntarily dismiss the action
before answer/summary judgment
First time: without prejudice
If it’s the second time?&raquo_space; with prejudice, and the dismiss operates as adjudication on the merits and cannot bring it again

Question 20

Involuntarily dismiss

Answer 20

Court dismiss the case

usually with prejudice
` failure to state a claim
failure to obey a court order ` failure to prosecute

without prejudice
- lack of jx
- venue
- failure to join indispensable party

Question 21

Appellate court - Standards of review for trial judge’s rulings

Answer 21

Matters of law – de novo review (appellate ct’s judgment substitutes trial judge’s)
1. Includes when damages excessive (see remittitur), jury instr

Findings of fact (non-jury) – clearly erroneous.
Jury – appeal ct affirms unless reasonable persons could not have made that finding

Mixed questions of law and fact – de novo review / clearly erroneous
Discretionary matters (rulings in trial judge’s discretion, e.g., leave to amend) – abuse of discretion

Question 22

Trial court’s standard

Answer 22

The standard a federal trial judge uses for determining whether to grant a new trial in jury cases is whether the verdict is against the clear weight of evidence

Question 23

Res Judicata (claim preclusion)

Answer 23

same parties/persons
same transaction/occurrence
Judgment on the merits (should be the final judgment)
generally, the party is identical

(1) when P wins
cannot sue on same cause of action

(2) when D wins
Barred from suing on same cause of action

Claim splitting
P cannot split a claim (money damage then injunction&raquo_space; XXX)

Res judicata does not apply to
dimissal for lack of jx
dismiassal for improper venue
settlemnt
dismissal based on defense

Change of law - you cannot bring a suit again

Privity
legal or special relationship

Question 24

Collateral Estoppel (issue preclusion)

Answer 24

same issue
final judgment
issue necessary to judgment
there will be three people

Does not apply to
settlement, default judgment, full defense
general verdict 은 final judgment가 아님

applicable prclusion rule
first case in federal court&raquo_space; apply federal preclusion rule
first case in state court&raquo_space; apply the first jx’s preclusion rule

Question 25

Rule 15. Amended and Supplemental Pleadings

Answer 25

(1) Amending as a Matter of Course.
A party may amend its pleading once as a matter of course within:

(A) 21 days after serving it, or

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence in the original pleading; or

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if it

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity.

Question 26

Service of process

Answer 26

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

옆집사는 나도, 침착맨도 가능하다

Question 27

Rule 12(a)

Answer 27

(A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

Question 28

Following a jury verdict, if a party fails to move for either a renewed judgment as a matter of law or for a new trial based on the insufficiency of the evidence, that party is precluded from raising the question of evidentiary sufficiency on appeal to support either judgment as a matter of law or a new trial.

Question 29

A renewed motion for judgment as a matter of law

Answer 29

a court “must not extend the time to act” under Rule 50(b) which requires a motion for judgment as a matter of law to be filed no later than 28 days after the judgment has been entered. Whether “good cause” was or was not shown is immaterial; FRCP 6(b)(2) prohibits any extensions of time for filing motions for judgment as a matter of law.

Question 30

Transfer of venue

Answer 30

Transfer of venue is a federal procedural issue. Although State A law states forum-selection clauses are unenforceable, federal procedural law will allow the case to be transferred if it is in the interest of justice.
A forum-selection clause represents the parties’ agreement as to the most proper forum, and it will be enforced by means of a motion to transfer “in the interest of justice” under 28 U.S.C. § 1404.

Question 31

Federal Rule of Civil Procedure 60(b) - duration for a motion for relief from the judgment based on the mistake

Answer 31

Federal Rule of Civil Procedure 60(b), when the reason for seeking relief from a judgment is “mistake, inadvertence, surprise, or excusable neglect,” a Rule 60(b) motion must be made no more than one year after the entry of the judgment.

Question 32

When the amount of controversy is insufficient - supplemental jx

Answer 32

supplemental jurisdiction authorizes jurisdiction over claims that otherwise would not meet the amount-in-controversy requirement.

To establish supplemental jurisdiction, the insufficient claims must be so related to claims in the action that are within the court’s original jurisdiction that they form part of the “same case or controversy.

Question 33

Federal Rule of Civil Procedure (FRCP) 58 states that the judgment has been reached when it is “set out in a separate document.” Then, the judgment is deemed to have been “entered” and the time to appeal is started. When a plaintiff is suing multiple defendants, the plaintiff must wait until a final judgment has been reached against all the defendants

Answer 33

For example, There was no immediately appealable final judgment until the claims against the supervisor were barred by the statute of limitations.

Partial summary judgment is not an immediately appealable issue because it is not a final judgment. When the supervisor was denied summary judgment, some, but not all the claims, had been disposed of, so there was no final judgment.

Question 34

Under Federal Rule of Civil Procedure (FRCP) 50, a court may grant judgment as a matter of law against a party only if the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for that party.

Answer 34

curve ball: reasonable을 빼고 standard는 뭐냐? 라고 물어보면 legally sufficient evidentiary basis

Question 35

the defendants followed proper removal procedure and subject-matter jurisdiction exists. As to removal, under 28 U.S.C. § 1446, notice of removal is valid within 30 days of service of the complaint on the defendant. If multiple defendants are served at different times and a later-served defendant initiates removal, the earlier-served defendants may join in the removal, even if their original 30-day window has closed

Question 36

Objection - plain error doctrine - untimely objection is not important

Answer 36

he applicable state law does not recognize contributory negligence as a defense to this kind of claim, so instructing the jury on contributory negligence and allowing that instruction to stand will affect the consumer’s substantive rights by permitting the consumer to lose the case based on an erroneous statement of the law. The inclusion of the instruction thus constitutes plain error. Further, a plain error that affects substantive rights does not require the claim of error to be properly preserved, so the untimely objection is not outcome determinative. Fed. R. Evid. 103(e).

Question 37

The general rule is that new issues may not be raised for the first time on appeal. However, there are exceptions. Pure matters of law may be considered on appeal, even if not properly presented in the trial court when all the necessary facts are complete in the record. The appellate court may substitute its judgment in a pure interpretation of the law for the judgment of the trial court. This includes the applicability of a particular statute in a given case.

Question 38

A district court may transfer any civil action to any other district or division where the action might have been brought, or to any district or division to which all parties have consented. However, this transfer provision only applies when the initial venue was proper. If an action is filed by the plaintiff in a district that is not a district in which venue is proper, the district judge may not use §1404(a) as authority for transferring to a district where venue is correct. When the original venue is improper, the court must use 28 U.S.C. §1406(a), which provides that when a case is brought with improper venue, the district shall either dismiss the case or transfer the case to any district or division in which it could have been brought (if this transfer is in the interest of justice).

Question 39

At the close of evidence, or sooner if allowed by the court, parties may submit proposed jury instructions. The court must inform the parties of its proposed instructions and give the parties a chance to object before instructing the jury. A party must object to an instruction or failure to give an instruction before the jury retires for deliberation. Failure to properly preserve an objection by this time will waive the issue on appeal. However, a court may consider a plain error in the instructions when the error was not preserved by a timely objection if that error affects the party’s substantial rights. In this case, since the attorney did not object to the negligence instruction, the best argument for a new trial is that the instruction was a plain error that affects the worker’s substantial rights.

Question 40

Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party.

Question 41

In federal practice, a motion for judgment as a matter of law may be combined with one for a new trial under FRCP 50.
If the judge grants the JMOL motion, the judge must also rule conditionally on the new trial motion. Later, if the JMOL is reversed on appeal, the new trial will then occur automatically unless the appeals court specifies otherwise.