CivPro II - JMLS

Question 1

28 USC 1291 - Final Decisions of District Courts

Answer 1

The courts of appeals (other than the U.S. Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the:

1. district courts of the United States
2. the United States District Court for the District of the Canal Zone
3. the District Court of Guam
4. the District Court of the Virgin Islands

except where a direct review may be had in the Supreme Court.

Question 2

28 USC §1292(a)(1) - Interlocutory Decisions

Answer 2

The courts of appeals shall have jurisdiction of appeals from:

• Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands,
• or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions,
• or refusing to dissolve or modify injunctions except where a direct review may be had in the Supreme Court

Question 3

FRAP - Rule 32(a)(7)(A)

Answer 3

A principal brief may not exceed 30 pages or a reply brief 15 pages . . .”

• You can only raise no more than 3 or 4 errors properly in a 30 pages

Question 4

FRCP 1 - Scope and Purpose

Answer 4

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the

• just,
• speedy, and
• inexpensive determination

of every action and proceeding.

Question 5

FRCP 12(b) - How to Present Defenses

Answer 5

A party may assert the following defenses by motion:

1. lack of subject-matter jurisdiction;
2. lack of personal jurisdiction;
3. improper venue;
4. insufficient process;
5. insufficient service of process;
6. failure to state a claim upon which relief can be granted; and
7. failure to join a party under R.19

a motion asserting any of these defenses:

• must be made before pleading if a responsive pleading is allowed
• if a responsive pleading is not required, an opposing party may assert at trial any defense to that claim
• no defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.

Question 6

FRCP 15(a) (2)(3)- Other Amendments; Time to Respond

Answer 6

(2) - Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.
(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

Question 7

FRCP 15(a) (1)- Amendments Before Trial

Answer 7

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

(b) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

Question 8

FRCP 15(b)- Amendments During and After Trial

Answer 8

(1) Based on an Objection at Trial. If at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.
(2) For Issues Tried by Consent. 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 f_ailure to amend does not affect the result of the trial of that issue_.

Question 9

FRCP 15(c) (1)- Relation Back of Amendments

Answer 9

(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 set out -or attempted to be set out - in the original pleading; or

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(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 10

FRCP 15(c) (2)- Relation Back of Amendments

Answer 10

(2) Notice to the United States. When the United States or a United States officer or agency is

• added as a defendant by amendment,
• the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied
• if, during the stated period, process was delivered or mailed to the
• United States attorney or
• the United States attorney’s designee,
• to the Attorney General of the United States, or
• to the officer or agency.

Question 11

FRCP 15(d)- Relation Back of Amendments

Answer 11

(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms,

• permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.
• The court may permit supplementation even though the original pleading is defective in stating a claim or defense.
• The court may order that the opposing party plead to the supplemental pleading within a specified time.

Question 12

FRCP 16(b)(1) - Scheduling Order

Answer 12

Except in categories of actions exempted by local rule, the district judge - or a magistrate judge when authorized by local rule - must issue a scheduling order:

A. after receiving the parties’ report under Rule 26(f); or

B. after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference.

Question 13

FRCP 16(e) - Final Pretrial Conference and Orders

Answer 13

• the court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence.
  
  • designed to narrow claims, defenses, and theories that will be presented at trial.
• the court may modify the order issued after a final pretrial conference only to prevent MANIFEST INJUSTICE.

Question 14

FRCP 2 - One Form of Action

Answer 14

There is one form of action - the civil action.

Question 15

FRCP 23(f) - Class Actions (Appeals)

Answer 15

•A court of appeal may permit an appeal from an order granting or denying class certification . . .”

1. Only applies to orders granting or denying class certification
2. Court of appeals has discretion to grant appeal
3. Does not need permission from the trial court
4. initiated by filing a notice of appeal with the clerk of the circuit court “within 14 days after the order is entered.”

Question 16

FRCP 26(a)(1) - Required Disclosures

Answer 16

MUST DISCLOSE:

1. the names, addresses and telephone numbers of each individual likely to have discoverable information that supports your claims or defenses (along with the subjects of their information).
2. documents and things that support your claims or defenses (or at least tell the other party what you have and where it is).
3. a computation of your damages as well as the material on which the computation is based (unless it is privileged in some manner)
4. any insurance agreement under which an insurer may be liable to satisfy all or part of the judgment or indemnify one of the parties.

Question 17

FRCP 26(a)(1)(C) - Time for Initial Disclosures

Answer 17

Initial disclosures must be made to the other side at or within 14 days of Rule 26(f) conference.

Question 18

FRCP 26(d)(1) - Timing and Sequence of Discovery

Answer 18

A party may not seek discovery from any source

1. before the parties have conferred as required by Rule 26(f),
2. except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or
3. when authorized by these rules, by stipulation, or by court order.

Question 19

FRCP 26(f) - Conference Timing

Answer 19

Imposes a duty on the parties to meet to discuss the case “as soon as practicable” and in any event 21 days before the scheduling conference is to be held.

Question 20

FRCP 26(f)(2) - Conference Content

Answer 20

–The parties must:

1. Discuss settlement
2. Exchange Initial Disclosures or make arrangements for their exchange
3. Talk about preserving discoverable info; and
4. Develop a written “discovery plan” (which is then submitted to the court) within 14 days after the conference.

Question 21

FRCP 3 - Commencing an Action

Answer 21

A civil action is commenced by filing a complaint with the court.

Question 22

FRCP 37 (a)(1) - Motion for an Order Compelling Disclosure or Discovery

Answer 22

On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery.

• The motion must include a certification that the movant has in good faith
• conferred or attempted to confer with the person or party failing to make disclosure or discovery
• in an effort to obtain it without court action.

Question 23

FRCP 37(e) - Failure to Preserve Electronically Stored Information

Answer 23

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

1. upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or,
2. only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

A. presume that the lost information was unfavorable to the party;

B. instruct the jury that it may or must presume the information was unfavorable to the party; or

C. dismiss the action or enter a default judgment

Question 24

FRCP 46 - Objecting to a Ruling or Order

Answer 24

To preserve an error for appeal, a party must:

1. Request the court to take a particular action or object to the court taking a particular action; and
2. state the grounds for the request or objection on the record

Question 25

FRCP 48 - Jury Size and Unanimity

Answer 25

* (a) a jury must begin with at least 6 and no more than 12 members, and each juror must participate in the verdict unless excused under Rule 47(c) * (b) **unless the parties stipulate otherwise**, the verdict must be unanimous and must be returned by a jury of at least 6 members.

Question 26

FRCP 50(a)(1)- Judgment as a Matter of Law JMOL

Answer 26

If a **party has been fully heard on an issue** during a jury trial and **the court finds that a reasonable jury would not have a legally sufficient evidentiary basis** to find for the party on that issue, the court may . . . [**grant JMOL] -- Motion can be made:** * **after the party has been fully heard on the issue** * **but before the case is submitted to the jury**

Question 27

FRCP 50(b)- Judgment as a Matter of Law JMOL

Answer 27

***a motion for JMOL can be "renewed" within 28 days of the entry of judgment.*** If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), . . . [n]o later than 28 days after the entry of judgment . . . *_movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59_* a renewed motion is not required **unless** the party wants to appeal the refusal to grant the first motion for JMOL

Question 28

FRCP 51(a) - Instructions to theJury **Before or After the Close of Evidence**

Answer 28

1. **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 it wants the court to give 2. **after the close** of the evidence, a party may: * _file requests for instructions on issues that could not reasonably have been anticipated_ at an earlier time * file timely requests for instructions, _with the court's permission_

Question 29

FRCP 51(b)(1)- Instructions

Answer 29

**The court** * **must** inform the parties of its proposed instructions and proposed action on the requests * before instructing the jury and * before final arguments

Question 30

FRCP 51(b)(2)- Instructions

Answer 30

**The court** * **must** give the parties **an opportunity to object** * on the record and * out of the jury's hearing * before the instruction and arguments are delivered

Question 31

FRCP 51(c)(2)- Objections

Answer 31

Two types of objections; * objection to the failure to give a requested instruction (you requested) * an objection to a proposed instruction (proposed by the other side) **How to object**: 1. **must** object _on the record_ 2. **must** _state the grounds_ for the objection

Question 32

FRCP 51(d) - Assigning Error

Answer 32

* You can usually only appeal the failure to give a particular jury instruction if: 1. you **requested that jury instruction at the appropriate time**; and 2. **objected** to the lack of that jury instruction during the objections

Question 33

FRCP 52(a)(1) - Findings and Conclusions by the Court

Answer 33

1. In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. 2. the findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.

Question 34

FRCP 54 (d)(1) - Costs; Attorney's Fees

Answer 34

1. *Costs Other Than Attorney's Fees*. Unless a federal statute, these rules, or a court order provides otherwise, **costs - other than attorney's fees - should be allowed to the prevailing party.** But costs against the United States, its officer, and its agencies may be imposed only to the extent allowed by law. The clerk **may tax costs on 14 days' notice.** On **motion served within the next 7 days**, the court ***_may_*** review the clerk's action.

Question 35

FRCP 54 (d)(2) (A) - Attorney's Fees; *Claim to Be by Motion*

Answer 35

A claim for **attorney's fees** and **related nontaxable expenses** _must be made by motion_ **unless** the substantive _law requires those fees to be proved at trial as an element of damages_.

Question 36

FRCP 54 (d)(2) (B) - Attorney's Fees; *Timing and Contents of the Motion*

Answer 36

Unless a statute or a court order provides otherwise, the motion must: 1. be **filed no later than 14 days** after the entry of judgment; 2. specify **the judgment and the statute**, **rule**, or **other grounds** entitling the movant to the award; 3. state the **amount sought** or **provide a fair estimate** of it; and 4. **disclose**, if the court so orders, **the terms of any agreement about fees** for the services for which the claim is made.

Question 37

FRCP 54 (d)(2) (C) - Attorney's Fees; Proceedings

Answer 37

Subject to Rule 23(h), **_the court must_**, on a party's request, * give an opportunity for adversary submissions on the motion in accordance with Rule 43(c) or 78. **The court may** * _decide issues of liability_ for fees before receiving submissions on the value of services. **The court must** * _find the facts and state its conclusions of law_ as provided in Rule 52(a).

Question 38

FRCP 54 (d)(2) (D) - Attorney's Fees; *Special Procedures by Local Rule; Reference to a Master or a Magistrate Judge.*

Answer 38

By local rule, **the court may** establish *_special procedures to resolve fee-related issues **without** extensive evidentiary hearings._* Also, the court may refer issues concerning the value of services to a special master under Rule 53 without regard to the limitations of Rule 53(a)(1), and **may** *_refer a motion for attorney's fees to a magistrate judge_* under Rule 72(b) as if it were a dispositive pretrial matter.

Question 39

FRCP 54 (d)(2) (E) - Attorneys Fees; *Exceptions*

Answer 39

Subparagraphs (A)-(D) **do not apply** to * **claims for fees and expenses as sanctions** for violating these rules or as sanctions under 28 U.S.C.§ 1927.

Question 40

FRCP 54(a) - Definition of Judgment

Answer 40

**any order from which an appeal lies** * the vast majority of decisions are not judgments * you must pay special attention to any document labeled "judgment."

Question 41

FRCP 54(b) - Judgment on Multiple Claims or Involving Multiple Parties

Answer 41

“When an action presents more than one claim for relief . . . or when multiple parties are involved, the court may direct entry of a final judgment **as to one or more, but fewer than all, claims or parties** only if the court expressly determines that there is no just reason for delay.”

Question 42

FRCP 56(g) - Failing to Grant All the Requested Relief

Answer 42

If the court does not grant all the relief requested by the motion, * it may enter an order stating any material fact - * including an item of damages or other relief - * that is not genuinely in dispute and * treating the fact as established in the case.

Question 43

FRCP 58(a) - Entering Judgment/Separate Document

Answer 43

Judgments must be set out in their own separate document (helps prevent the judgment from being buried in a longer document so that the parties miss it.

Question 44

FRCP 59(a)(1) - Grounds for a New Trial

Answer 44

The court may, on motion, grant a new trial … for any reason for which a new trial has heretofore been granted . . .

Question 45

FRCP 59(b)- Motion for a New Trial

Answer 45

A motion for a new trial must be filed no later than 28 days after entry of judgment

Question 46

FRCP 65 (a) - *Preliminary Injunction - Notice*

Answer 46

(1) The court may issue a **preliminary** **injunction** *only on notice* to the **adverse party.**

Question 47

FRCP 65 (a) (2) - Preliminary Injunction; *Consolidating the Hearing with the Trial on the Merits.*

Answer 47

_Before or after_ beginning the hearing on a motion for a preliminary injunction, the court may: * advance the trial on the merits, and * consolidate it with the hearing. Even when consolidation is not ordered, **evidence that is received on the motion and that would be admissible at trial becomes part of the trial record** and need not be repeated at trial. But **the court must preserve** any party's right to a jury trial.

Question 48

FRCP 65(b) (1) - Temporary Restraining Order; *Issuing Without Notice*

Answer 48

(1) The court may issue **temporary restraining** order _without written or oral notice¹_ to the diverse party or its attorney only if: A. **Specific facts²** in an affidavit or a verified complaint clearly show that **immediate and irreparable injury³**, **loss⁴**, or **damage⁵** will _result to the movant before the adverse party can be heard⁶_ in opposition; and B. The **movant's attorney certifies in writing⁷** any efforts made to give notice and the reasons why it should not be required.

Question 49

FRCP 65(b) (2) - Temporary Restraining Order; *Contents - Expiration*

Answer 49

(2) _Every temporary restraining order issued without notice must_ 1. state the **date and hour** it was **issued**; 2. **describe** the **injury** and state **why it is irreparable**; 3. state **why the order was issued without notice;** and 4. be **promptly filed in the clerk's office** and entered in the record. The order **expires at the time after entry -- not to exceed 14 days** -- that the court sets, **_unless_** 1. **before that time** the court, for good cause, 2. **extends it for a like period** or 3. **the adverse party consents to a longer extension,** The reasons for an extension must be entered in the record,

Question 50

FRCP 65(b) (3) - Temporary Restraining Order; *Expediting the Preliminary-Injunction Hearing.*

Answer 50

**If the order is issued without notice,** the motion for a preliminary injunction: 1. must be set for hearing at the earliest possible time, 2. taking precedence over all other matters except hearings on older matters of the same character. 3. At the hearing, **the party who obtained the order must proceed with the motion**; *if the party does not*, _the court must dissolve the order._

Question 51

FRCP 65(b) (4) (c)- Temporary Restraining Order; *Security*

Answer 51

The **court may issue a preliminary injunction** or a temporary restraining order **_only if_** : 1. the **movant gives security in an amount that the court considers proper,** 2. to **pay the costs and damages,** 3. **sustained by any party** found to have been **wrongfully enjoined or restrained.** 4. The United States, its officers, and its agencies are not required to give security.

Question 52

FRCP 65(b) (4) (d)- Temporary Restraining Order; *Contents and Scope of Every Injunction and Restraining Order*

Answer 52

(1) Contents - **every order granting an injunction** and every restraining order must: (A) **state the reasons** why it issued; (B) **state its terms specifically**; and (C) **describe in reasonable detail** - and not by referring to the complaint or other document - **the act or acts restrained** or required,

Question 53

FRCP 65(b) (4) (d)- Temporary Restraining Order; Contents and Scope of Every Injunction and Restraining Order

Answer 53

(2) **Persons Bound.** The **order binds only the following** who receive actual notice of it by personal service or otherwise: (A) **the parties¹**; (B) **the parties' officers, agents, servants, employees, and attorneys²**; and (C) **other persons who are in active concert or participation³** with anyone described in Rule 65(d)(2)(A) or (B)

Question 54

FRCP 65(b) (4) (e)- Temporary Restraining Order; *Other Laws Not Modified*

Answer 54

These rues **do not modify the followin**g: 1. any **federal statute** relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee; 2. **28 U.S.C. §2361**, which relates to **preliminary injunctions** in **actions of interpleader** or in the nature of interpleader; or 3. **28 U.S.C. §2284**, which relates to actions that must be **heard and decided by a three-judge district court.**

Question 55

FRCP 65(b) (4) (f)- Temporary Restraining Order; *Copyright Impoundment*

Answer 55

This rule applies to copyright-impoundment proceedings.

Question 56

FRCP 65(b) (4) - Temporary Restraining Order; *Motion to Dissolve*

Answer 56

On **2 days' notice to the party who obtained the order without notice** - or on shorter notice set by the court - 1. **the adverse party** may appear and move to dissolve or modify the order. 2. **The court must then hear and decide t**he motion as promptly as justice requires.

Question 57

FRCP 68 (a) - Offer of Judgment - *Making an Offer; Judgment on an Accepted Offer.*

Answer 57

At least **14 days before the date set for trial¹**, a party defending against a claim **may serve on an opposing party an offer to allow judgment on specified terms²**, with the costs then accrued. **If within 14 days after being served³**, the opposing party serves written notice **accepting the offer⁴**, * **either party may then file the offer⁵** and **notice of acceptance⁶**, *plus* **proof of service⁷**. * The clerk must then enter judgment.

Question 58

FRCP 68 (b) - Offer of Judgment - *Unaccepted Offer*

Answer 58

An **unaccepted offer is considered withdrawn¹**, but it **does not preclude a later offer²**. **Evidence of an unaccepted offer is not admissible³** *_except in a proceeding to determine costs._*

Question 59

FRCP 68 (c) - Offer After Liability is Determined

Answer 59

When o**ne party's liability to another has been determined but the extent of liability remains to be determined** by further proceedings: 1. the **party held liable may make an offer of judgment**. 2. It **must be served within a reasonable time** - 3. but **at least 14 days** - **before the date set for a hearing** to determine the extent of liability.

Question 60

FRCP 68 (d) - Paying Costs After an Unaccepted Offer.

Answer 60

If **the judgment that the offeree finally obtains is not more favorable¹** than the unaccepted offer, the **offeree must pay the costs incurred after the offer was made².**

Question 61

FRCP 7(A) - Pleadings

Answer 61

Pleadings. Only these pleadings are allowed: 1. a **complaint** 2. an **answer to a complaint** 3. an **answer to a counterclaim** designated as a counterclaim 4. an **answer to a crossclaim** 5. a **third-party complaint** 6. an **answer to a third-party complaint** 7. if the court orders one, a **reply to an answer**

Question 62

j,kkkkkkk n,FRCP 8(a) - General Rules of Pleading; Claim for Relief

Answer 62

Claim for Relief. A pleading that states a claim for relief must contain: 1. a **short and plain statement of the grounds** for the **court's jurisdiction,** unless the court already has jurisdiction and the claim needs no new jurisdictional support 2. a **short and plain statement of the claim** showing that the **pleader is entitled to relief;** and 3. a **demand for the relief sought,** which *may include relief* in the alternative or different types of relief.

Question 63

FRCP 8(d) - Pleading to Be Concise and Direct; Alternative Statements; Inconsistency

Answer 63

1. ***In General.*** Each allegation must be simple, concise, and direct. No technical form is required. 2. ***Alternative Statements of a Claim or Defense.*** A party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements the pleading is sufficient if any one of them is sufficient. 3. ***Inconsistent Claims or Defenses.*** A party may state as many separate claims or defenses as it has, regardless of consistency,

Question 64

FRCP 9(b) - Pleading Special Matters; Fraud or Mistake; Conditions of Mind

Answer 64

In alleging fraud or mistake, **a party must state with particularity the circumstances constituting fraud or mistake,** Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally.

Question 65

FRCP 41(b) - Involuntary Dismissals

Answer 65

If the plaintiff * **fails to prosecute (***pattern of delay; inactive for six months or more​)* or * **to comply with these rules** or * **a court order**, the defendant may move to dismiss the action . …”

Question 66

LITIGATION HOLD

Answer 66

•What is a “litigation hold”? –D’s counsel must ensure that its client puts a “hold” on all documents that are relevant to the anticipated lawsuit so that they are not destroyed. –This means that counsel must become familiar with D’s data retention policy and data retention architecture so that counsel can be sure that all of the affected employees are aware of the need to hold the documents.

Question 67

SPOLIATION (detailed under R.37(e)

Answer 67

* Spoliation is the destruction of documents that are needed for use in litigation. * Spoliation can be either accidental or deliberate. * Penalties arise if it is deliberate D has a duty to retain documents related to “pending or reasonably foreseeable litigation.”

Question 68

FRCP 56(a) - Motion for Summary Judgment

Answer 68

•The **_moving party_** must show that: 1. there is **no genuine dispute as to any material fact;** AND 1. the **movant is entitled to judgment** as a matter of law. Summary Judgment can be on "parts" of claims or defenses.

Question 69

Two Types of Summary Judgment

Answer 69

1. •**_Offensive SJ_** – moving for SJ on an issue on which the movant bears the burden of proof at trial 1. •**_Defensive SJ_** – moving for SJ on an issue the opposing party bears the burden of proof on at trial