Outline

Question 1

Final Appealable Order - dismissal of party or one claim

Answer 1

When some parties or claims are dismissed but others remain, it is a final, appealable order to the extent the court makes an express determination there is no just reason for delay.

Question 2

Standards of Review - jury instruction

Answer 2

Preserved: abuse of discretion

Not preserved: Plain error - substantial right

It must be preserved. If it is not, plain error is used to determine whether the instruction affected substantial rights.

Question 3

Standard of Review - post trial JMOL, & denial of new trial

Answer 3

JMOL - de novo (issue of law)

Denial of new trial - abuse of discretion

Question 4

Default Judgment

Answer 4

Entered by a judge if:

1. damages are not certain
2. defendant appeared

Defendant entitled 7 days notice

Entered by clerk if:
1. damages for sum certain
2. defendant did not appear AND
3. not for more than requested in complaint

Question 5

Claim Aggregation

Answer 5

Claims can only be aggregated if permissible by applicable law.

Question 6

Motion to dismiss PJ

Answer 6

Motion may be filed before or with first response.

Question 7

Rule 12 Dismissals

Answer 7

Rules 12(b)(2)-(5) are waivable. PJ, Venue, & Process.

1. SMJ
2. PJ
3. Venue
4. Process
5. Service of process
6. Failure to state claim
7. Failure to join party

Question 8

Personal Jurisdiction

Answer 8

Power over the Parties: sufficient contacts with the forum state to make it fair and reasonable.

Fair & Reasonable = long-arm statute + Constitutional Due Process

Question 9

Long-Arm Statute

Answer 9

State statute granting the court power over the parties.

No Long-Arm Statute = No PJ

Question 10

Constitutional Analysis of PJ

Answer 10

1. Sufficient contacts with forum that are
2. Related to the claim, and
3. (in specific PJ) fairness of hailing into forum

Question 11

PJ Minimum Requirements

Answer 11

Purposeful Availment + Foreseeability

Purposeful Availment: purposeful act targeting forum
Foreseeability: foreseeable he may be sued in forum

Question 12

Specific PJ Fairness Factors

Answer 12

1. Burden on D and witnesses
2. State’s interests in providing court for citizens
3. Plaintiff’s Interest

Question 13

Specific PJ

Answer 13

Based on isolated acts occurring in the forum state.

Only proper for acts arising out of that conduct.

Question 14

General PJ

Answer 14

Defendant at home in forum state:

Person at home if domiciled

Corporation at home where incorporated or PPB

Question 15

Venue is proper when:

Answer 15

1. Judicial district where any D resides, if all D reside in the state
2. District in which substantial part of events occurred; or
3. If neither of above, then where any D is subject to PJ

Question 16

Service of Process Time Limit

Answer 16

90 days

Question 17

Service of Process Requirements

Answer 17

Individual in US
1. personal service
2. substituted service with someone living at usual abode
3. on agent
4. by method permitted by state law where the court sits or where being served

On business or organization in US
1. on officer, manager, or agent
2. as permitted by state law

On minor or incompetent
1. any method permitted by state law where service is to be made

Question 18

Waiver or formal process

Answer 18

Must be waived within 30 days

Failure to waive without good reason = pay for cost of service

Question 19

Immunity from Service

Answer 19

D cannot be served on civil case when in the state as a party, witness, or attorney in a different civil case.

Question 20

Removal

Answer 20

No later than 30 days of service of document making it removable.

Exceptions in Diversity Cases:
1. D is citizen of forum
2. not more than one year after case filed

Question 21

Remand

Answer 21

Only available on cases removed.

If based on SMJ can be remanded at any time.

If based on anything other than SMJ, must be no more than 30 days after notice of removal.

Question 22

Supplemental JDX

Answer 22

Applicable to original claims (except by single P based on diversity), crossclaims, and counterclaims. (Co-plaintiff can use Supp JDX based on other’s diversity claim).

Common Nucleus of Operative Fact with claim giving federal SMJ.

Question 23

Erie Doctrine

Answer 23

Federal Law:
1. Constitution,
2. FRE,
3. FRCP

State Law:
1. elements of claim/defense
2. statute of limitations
3. Conflict/choice of law
4. new trial on excessive/inadequate damages

Question 24

Forum Non Conveniens

Answer 24

When an outside court is the center of gravity for the case making it nontransferable. Court can dismiss or stay until filed in new court.

Same public/private factors as transfer:

Public:
1. applicable law
2. community burden of jury service
3. desire to keep local

Private:
1. Convenience (evidence and witnesses)
2. forum selection clauses

Question 25

Complaint requirements

Answer 25

1. Basis for SMJ 2. Short and plain statement of claim (particularity for fraud) 3. Demand for relief

Question 26

Defendant Response

Answer 26

Within 21 days (60 with waiver of service) must: 1. file Rule 12 motion (b)(e) or (f) OR 2. file Answer

Question 27

Amend pleadings/answer

Answer 27

Each party has Right to amend once within 21 days of service of Rule 12 motion or answer. Where there is no right party must seek leave of the court. If SOL has run plaintiff can: 1. add claim that relates back (same T/O) or 2. change defendant if: a. same T/O b. new D knew of case within 90 days of filing c. new D had reason to know they would have been named originally

Question 28

Rule 11

Answer 28

Applies to all documents except discovery. Signature certifies: 1. not for improper purpose 2. legal contentions are warranted 3. factual contentions and denials have evidentiary support Must be served on other side first. 21 days to fix. If not fixed, file with court.

Question 29

Plaintiff Joinder

Answer 29

Additional claims can be added whether related or not. Basis for SMJ still required. Co-plaintiffs may sue together if: 1. same T/O 2. one common question of law/fact

Question 30

Required Joinder

Answer 30

Court may force non-party to join if they are necessary. 3 steps: 1. Is party necessary? 2. Can party be joined? 3. If party cannot be joined, court must proceed without or dismiss.

Question 31

Required joinder - Is party necessary?

Answer 31

Party is necessary if: 1. court cannot accord complete relief without them OR 2. their interest may be harm if not joined, OR 3. the absent party claims an interest that subjects D to risk of multiple obligations

Question 32

Required joinder - Can party be joined

Answer 32

Party can be joined if: 1. subject to PJ 2. will not destroy diversity (party aligned as P or D based on interest)

Question 33

Required joinder - If party cannot be joined

Answer 33

Court must proceed without or dismiss. Will look at following factors: 1. availability of alternative forum 2. likelihood of harm to absentee 3. can that harm be avoided?

Question 34

Compulsory Counterclaim (Defendant Joinder)

Answer 34

1. Same T/O 2. Must be asserted in the case (part of answer) or it is lost

Question 35

Permissive Counterclaim

Answer 35

1. Not the same T/O 2. SMJ required 3. not compulsory and may be brought in a different case

Question 36

Crossclaims

Answer 36

1. Against Co-party 2. Same T/O 2. NOT compulsory

Question 37

Impleader

Answer 37

Bring in 3rd party. Only for indemnity or contribution, not for blaming another party completely. Right within 14 days of answer or must request leave.

Question 38

Intervention of Right

Answer 38

1. Party's interest may be harmed if not joined 2. Same test as necessary parties in joinder

Question 39

Permissive Intervention

Answer 39

1. Common question with party claim 2. usually permissible if no prejudice or delay

Question 40

Class Action

Answer 40

Class Action is proper if: 1. Numerous parties 2. Common Question 3. Typical parties 4. Fair & Adequate representation of interests 5. One of: a. risk of inconsistent results b. injuctive/declaratory relief appropriate c. common questions predominate over other issues and class action is superior to other methods

Question 41

Class Certification Factors

Answer 41

1. Interest of individual control 2. extent and nature of litigation elsewhere on the same subject 3. desirability of joint trial 4. difficulties in managing class action

Question 42

Class Action Fairness Act

Answer 42

Jurisdiction is established if: 1. any class member is diverse from any defendant 2. AIC over $5 million 3. at least 100 members

Question 43

Initial Discovery Disclosures

Answer 43

Must occur within 14 days of 26(f) conference. 1. identity of persons party may use to support his claim/defense 2. things party may use to support claim/defense 3. Computation of damages and support for it 4. Insurance coverage

Question 44

Required Disclosures about Expert Witnesses

Answer 44

At time set by court each party must provide: 1. identity of expert and 2. written report After disclosure depositions may be taken.

Question 45

Pretrial Disclosures

Answer 45

30 days before trial, party must disclose to other parties and file: 1. Witnesses expected 2. Possible witnesses 3. Witnesses testifying by deposition 4. Documents/exhibits to be used Objections may be served within 14 days after disclosures

Question 46

Discovery Requests

Answer 46

Information can be exchanged after initial disclosures, BUT discovery requests cannot be sent until after 26(f) hearing.

Question 47

Depositions

Answer 47

1. No more than 10 2. No more than (1) 7-hour day 3. No more than 100 miles travel for non-party unless he agrees

Question 48

Deposition of Organization

Answer 48

1. Can "notice" the deposition describing the facts seeking through deposition 2. Org must then designate person to testify on that matter

Question 49

Interrogatories

Answer 49

1. Parties only 2. 30 days to respond after service 3. No more than 25

Question 50

Request to Produce

Answer 50

Request for docs, things, ESI, enter property to inspect. 1. Can be made 21 days after service of process 2. 30 days to respond after service 3. parties only

Question 51

Medical Exam

Answer 51

1. Requires court order 2. Must show good cause AND health is in actual controversy 3. Only applicable to party or someone in his legal custody or control (NOT an employee) 4. Party seeking order chooses physician 5. Examinee entitled to any report physician wrote a. if he does receive report, he waives doctor-patient privilege and must disclose all medical reports about the condition

Question 52

Request for Admission

Answer 52

1. parties only 2. 30 days to respond 3. Admit, specifically deny, or object 4. If do not know, must state reasonable inquiry and inadequate information to admit or deny

Question 53

Scope of Discover

Answer 53

1. Anything relevant to claim or defense and proportional to needs of case

Question 54

Discovery & work product

Answer 54

1. prepared in anticipation of litigation 2. does not have to be prepared by lawyer 3. Discoverable if: a. substantial need AND b. not otherwise available NOT mental impressions, opinions, conclusions, or legal theories

Question 55

Privilege and Discovery

Answer 55

Confidential information between lawyer and client. Privilege must be express and materials described in detail If inadvertently produced notify other party promptly. Other party must destroy, return, or sequester the information.