Missed questions

Question 1

After final judgment, you can file a motion for relief from judgement based on:

Answer 1

1. Mistake, excusable neglect
2. Newly discovered evidence that, with reasonable diligence could not have been discovered in time for a new trial
3. Fraud, misrepresentation, or misconduct by an opposing party

Question 2

In civil cases - how long do you have to file an appeal?

Answer 2

30 days after entry of judgment UNLESS motion for relief from judgment

Question 3

Can you appeal based on relief from judgment if you did not raise it during trial?

Answer 3

Yes —> but must be based on reason such as fraud, mistake, etc.

Question 4

Motions for a new trial must be filed:

Answer 4

No later than 28 days after entry

Question 5

Permissive joinder allows Ps to join together in an action IF:

Answer 5

1. arise from single transaction, occurrence, or series of transactions AND
   - Disc jokey example
2. common question of law or fact to all Ps will arise in the action

Question 6

Monetary sanctions may not be imposed on a party when:

Answer 6

The legal contentions contained in the pleading or motion are not warranted by existing law or frivolous argument

Question 7

Sanctions standard:

Answer 7

Limited to what is sufficient to deter repetition of such conduct”

Question 8

Can you remove the action to a federal court located in a different state than where the OG state court action is pending?

Answer 8

No

Removal is proper to the federal district where the of state court action is pending

Question 9

Can federal courts hear a case without subject matter or federal question?

Answer 9

No. Unconstitutional under Article 3

Question 10

Do the federal courts have jurisdiction when the US is a party?

Answer 10

Yes

Question 11

Can a party amend her answer (once the SOL has ran) to change her defense completely?

Answer 11

Yes. You can amend your answer within 21 days after it was served as a “matter of course”

AND

relates back to original claim

Question 12

A party may move for SJ:

Answer 12

Prior to 30 days after the close of discovery

Question 13

Relying on your complaint allegations when defendant provided evidence for their defense and moved for SJ:

Answer 13

Court will grant because there is no genuine dispute as to any material fact

Question 14

If someone demands a jury trial in state court –> will it be granted?

Answer 14

No because the 7th amendment has not been incorporated against the states

Question 15

When do you have a right to a trial by jury?

Answer 15

• Federal court
• Must have been suable at common law in 1791
• Claim must be legal in nature (Ex=wrongful death for money damages)
• Must file the demand within 14 days after the service of last pleading directed to that issue

Question 16

Judgment as a matter of law may be made:

Answer 16

At any time before the court submits the case to the jury

A judge can reserve judgement and still submit case to jury

Question 17

Judgment as a matter of law standard:

Answer 17

If a reasonable jury could have legally sufficient evidence to find for the moving party

Question 18

What standard of review will an appellate court employ if trial courts ruling was on a finding of fact?

Answer 18

Clearly erroneous.

Ex) think about the trademark example. Judge had to decide confusion

Question 19

When is a party required to be joined?

Answer 19

(1) required for the court to be able to accord complete relief among the existing parties OR

(2) has an important interest in the case and NOT joining them will
- cause them a practical impairment in protecting their interest; OR
- expose an existing party to a substantial risk of multiple liability

Question 20

What if a required party cannot be joined? Because they destroy jurisdiction?

Answer 20

Court can proceed without party if “in equity and good conscience” OR

Dismiss the case if the party is indispensable (prejudice to party if not joined, judgement will be inadequate, adequate alternative remedy)

Question 21

When is a person bound to a class action judgment if they were not part of the class?

Answer 21

(1) injunctive or declaratory relief
(2) no common question of fact or law - notice not required

Question 22

Will a failure to prosecute prevent the re-assertion of the same claim in a new action?

Answer 22

Yes because it constitutes an adjudication on the merits

Question 23

If a suit ended in an involuntary dismissal, will it bar a subsequent suit?

Answer 23

Yes, for (1) failure of the plaintiff to prosecute (2) failure to comply with FRCP or court order (3) failure of P to show right to relief based upon facts and law

Exceptions
(1) dismissal for lack of jurisdiction (2) dismissal for improper venue (3) dismissal for failure to join a party under Rule 19 AND (4) dismissal without prejudice

Question 24

What can you file in response for insufficient process?

Answer 24

Motion to dismiss

Question 25

When may a new trial be granted?

Answer 25

The verdict is against the weight of evidence because of juror misconduct or verdict is inadequate. An error during trial. - Can not be granted for harmless error - Trial judge may order for errors committed during trial that result in an unfair verdict (Ex: Jury misconduct, outside influence, prejudice, concealment of bias, misunderstanding of jury instructions) RULE: Any reason that would justify granting one on a party's motion.

Question 26

Total Breach

Answer 26

A party who owes a duty under a contract fails to perform and the breach is severe and it will have the effect of suspending or discharging the other party's obligation to perform

Question 27

Partial breach

Answer 27

When a breach is not material and does not relieve the aggrieved party from continuing to perform under the contract Aggrieved party does not have immediate right to sue for damages

Question 28

Anticipatory repudiation

Answer 28

A party makes it clear he does not intend to perform even before performance

Question 29

Divisible contract

Answer 29

1. the contract divides each party's performance into at least two parts 2. each party has the same number of parts they are obligated to perform and 3. each party's performance on each part is agreed to be the equivalent of a corresponding part for the other party When one party performs a single unit under a divisible contract, he is entitled to recover the amount that agreed upon However, if the party is partially performing, he will be subject to liability

Question 30

In a contract dispute, when is outside evidence allowed if the agreement is completed integrated?

Answer 30

To clarify terms in a K when a terms meaning is ambiguous

Question 31

Parol evidence rule

Answer 31

Bars parties to a written K from presenting extrinsic evidence of terms in a K that contradicts, modifies, or varies the terms of a written agreement when that agreement is complete and finalized

Question 32

Additional terms

Answer 32

Contract terms that are intended by the parties to be the final expression their agreement can not be contradicted by evidence of any previous agreement but may be explained or supplemented by evidence of additional terms These terms can be based on (1) course of performance (2) course of dealing (past contract behavior) (3) trade usage

Question 33

Trade usage will be viewed as consistent with agreements express language UNLESS

Answer 33

The usage completely negates specific express language Will be admissible to explain interpretation of written K