trial & post trial matters Flashcards
(19 cards)
An elderly woman entered into a contract with a company in the business of providing home care services. Believing that she had been duped by representatives of the company, the woman commenced an action in federal court, properly based on diversity, seeking rescission of the contract. The company answered, denying the principal allegations of the woman’s complaint and asserting a counterclaim against the woman for breach of contract. In addition, the company timely served a demand for a jury trial. The woman did not.
Which statement best describes the roles of the judge and jury as finders of fact in the trial of the parties’ claims?
A) The judge will first determine the issues relating to the woman’s claim for rescission, and if it concludes the rescission is not warranted, the jury will determine the issues relating to the company’s breach-of-contract counterclaim.
B) The jury will first determine the issues relating to the breach of contract claim, and the judge will determine the issues relating to the rescission claim that have not already been resolved by the jury.
C) The jury will act as the sole finder of fact.
D) The judge may either act as the sole finder of fact on both the claim and the counterclaim, or allow an advisory jury to try the issues relating to the company’s counterclaim.
If legal and equitable claims are joined in one action involving common fact issues, the legal claim is tried first before the jury, and then the equitable claim is tried to the court. The jury’s finding on fact issues will bind the court in the equitable claim. (A) is incorrect because all fact issues relating to the company’s legal claim must first be determined by the jury. Only then may the judge try the woman’s equitable claim.
(C) and (D) are both incorrect because neither the jury nor judge acts as the sole finder of fact when the case has legal claims and equitable claims, and a jury has been demanded on the legal claims.
A consumer purchased a luxury automobile from a dealer on credit. After the consumer failed to make a number of the required payments, the dealer filed a civil action against the consumer in federal district court to recover the balance due on the account. The dealer properly served process on the consumer. Several months passed, and the consumer did not file any response to the complaint. The dealer then filed a motion asking the clerk of court to make an entry of default, and the clerk did so.
What procedure should the dealer follow to obtain a default judgment against the consumer?
A) File a motion to have the clerk of court enter the default judgment, and the clerk may do so without the consumer receiving any further notice of the motion.
B) File a motion to have the clerk of court enter the default judgment, and the clerk may do so, provided the consumer receives additional notice of the motion for default judgment.
C) File a motion to have the judge enter the default judgment, and the judge may do so without the consumer receiving any further notice of the motion for default judgment.
D) File a motion to have the judge enter the default judgment, and the judge may do so, provided the consumer receives additional notice of the motion for default judgment.
The dealer should file a motion with the clerk of court. On request of the plaintiff, supported by an affidavit as to the amount due, the clerk may sign and enter judgment for that amount and costs against the defendant if: (i) the plaintiff’s claim against the defaulted defendant is for a sum certain; (ii) the default was entered because the defendant failed to appear; (iii) the defaulted defendant is not an infant or incompetent person; and (iv) the damages amount requested is not greater than the amount requested in the complaint. The dealer’s claim here meets these requirements, so the clerk may enter the default judgment, and no notice is required. (B) is incorrect because no further notice is required under these facts. (C) is incorrect because the clerk may enter the default judgment when the amount is for a sum certain. (D) is incorrect because no further notice is required under these facts and because the clerk may enter the default judgment.
A manufacturer sued a department store for breach of contract, alleging that the department store failed to pay for a shipment of watches delivered by the manufacturer to the department store in July of that year.
At trial, the manufacturer introduced evidence regarding the department store’s failure to pay for the watches. In addition, it introduced evidence that the department store failed to pay for a shipment of necklaces, also delivered that July pursuant to a separate contract. At the close of the manufacturer’s case, the department store introduced evidence showing that both the watches and the jewelry were defective. The jury returned a verdict for the manufacturer, awarding the manufacturer damages for breach of both contracts. The manufacturer then immediately moved to amend its complaint to conform to the evidence introduced at trial.
Should the court allow the amendment?
A) Yes, because the department store impliedly consented to the introduction of the evidence.
B) Yes, because the parties entered into the contracts at approximately the same time.
C) No, because the motion should have been made before the verdict was rendered.
D) No, because the defendant must have had knowledge of the claim when the complaint was served.
The court should allow the amendment. An issue not raised by the pleadings is treated as if raised in the pleadings if it is tried by the parties’ express or implied consent. In such a case, a party may move-at any time, even after judgment-to amend the pleadings to conform them to the evidence and to raise the unpleaded issue.
Here, the department store impliedly consented to the introduction of evidence relating to the jewelry contract. Not only did it fail to object to the evidence, it introduced evidence to show that the jewelry was defective. Thus, the manufacturer was entitled to move to amend its complaint to conform to the evidence introduced at trial.
(B) is incorrect because the relevant determination is whether the party impliedly consented to the trial of the issue, not whether the issue was related to an issue raised by the pleadings. (C) is incorrect because a motion to amend a pleading to conform to the evidence introduced at trial may be made at any time, even after judgment. (D) is incorrect because the defendant need not know about the claim when the complaint was served.
To receive a jury trial, a party generally must:
A) File a written demand and serve it on all the parties within 28 days after the service of the last pleading directed to the jury-triable issue
B) File a written demand and serve it on any opposing parties within 14 days after the service of the last pleading directed to the jury-triable issue
C) File a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue
D) File a written demand and serve it on any opposing parties within 28 days after the service of the last pleading directed to the jury-triable fact issue
Under Rule 38, to receive a jury trial a party must file a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue. Otherwise, the right to a jury trial generally is deemed waived. Note, however, that the Supreme Court has held that, in the absence of compelling reasons to the contrary, a court should grant relief from the waiver if the issue is normally tried by a jury.
Filing a written demand within 28 days after the service of the last pleading directed to the jury-triable issue may be too late. The applicable period is 14 days.
Filing a written demand on any opposing parties may be insufficient where multiple parties are involved (i.e., co-parties to the case). All parties must be served.
In a diversity case, federal trial courts are required to apply a _______ when considering a motion for a new trial based on the excessiveness of the verdict.
A) Federal law standard
B) State or federal law standard, in the court’s discretion
C) State law standard
In a diversity case, federal trial courts are required to apply a state law standard when considering a motion for a new trial based on the excessiveness of the verdict.
Federal trial courts may neither use a federal law standard, nor choose a state or federal law standard in the court’s discretion.
During a trial, a motion for judgment as a matter of law (“JMOL”) may be filed:
A) At any time before a verdict is entered
B) No later than 28 days after the entry of judgment
C) At any time before submission of the case to the jury
During a trial, a motion for judgment as a matter of law (“JMOL”) may be filed at any time before submission of the case to the jury. The moving party must specify in its motion the judgment sought and the law and facts on which the party is entitled to judgment. Note, however, that the nonmoving party must have been heard on the issue.
The answer “at any time before a verdict is entered” is incorrect because the motion is unavailable once the case is submitted to the jury.
The answer “no later than 28 days after the entry of judgment” is incorrect because the motion is unavailable once the case is submitted to the jury. It should be noted that this is the filing timeframe for a renewed motion for judgment as a matter of law (“JNOV”).
Which of the following factors is not required in order for an otherwise nonappealable interlocutory order to be appealable under the Interlocutory Appeals Act?
A) The controlling question of law is one as to which there is a substantial ground for a difference of opinion
B) The amount in controversy exceeds $75,000
C) At least two appellate court judges agree to allow an appeal
D) An immediate appeal of the order may materially advance the ultimate termination of the litigation
The amount in controversy exceeds $75,000 is the correct answer because it is not a requirement for an immediate appeal under the Interlocutory Appeals Act.
Review under the Interlocutory Appeals Act is discretionary with the court and may be available when: (i) the trial judge certifies that the order involves a controlling question of law as to which there is substantial ground for a difference of opinion and an appeal would materially advance the conclusion of the case, and (ii) at least two appellate court judges agree to hear the appeal.
Which of the following orders is immediately reviewable on appeal even if it is not a final order?
A) An order dismissing defendant’s counterclaims
B) An order regarding copyright claims
C) An order granting an injunction
The general rule is that only final orders may be appealed. However, certain interlocutory orders may be appealed as of right. Interlocutory (i.e., nonfinal) orders that may be immediately appealed include: (i) an order granting an injunction (or continuing, modifying, dissolving, or refusing to dissolve an injunction), (ii) an order appointing a receiver, or refusing to wind up or take steps to accomplish purposes of receiverships, (iii) decrees in admiralty cases that find liability but leave damages to be assessed later, (iv) a patent infringement order where only an accounting is wanting, and (v) an order whereby possession of property is changed or affected, such as orders dissolving writs of attachment and the like.
An order dismissing defendant’s counterclaims would not typically be subject to an interlocutory appeal absent other circumstances. Although patent infringement orders may sometimes be subject to interlocutory appeal as stated above, there is no such exception for an order regarding copyright claims.
As a general rule, a notice of appeal must be filed with the district court within ____ days from the entry of judgment.
A) 60
B) 30
C) 90
D) 28
Under Rules 3 and 4 of the Federal Rules of Appellate Procedure, a party has 30 days from the entry of judgment to file a notice of appeal with the district court.
The filing period is extended to 60 days when the United States is a party to the action.
90 days and 28 days are both incorrect.
When an action involves multiple claims or parties, and a judgment is entered that disposes of only some of the parties or claims, the judgment:
A) Generally is immediately appealable regarding the parties who were disposed
B) Is not immediately appealable until a final judgment is rendered as to all parties and all claims
C) Is immediately appealable only to the extent that the court makes an express determination that there is no just reason for delay
D) Generally is immediately appealable as to the claims that were disposed
When an action involves multiple claims or parties, and the court enters a judgment as to fewer than all the claims or all the parties, it is deemed a final, appealable judgment only to the extent the court makes an express determination that there is no just reason for delay.
Generally, a judgment as to only some of the claims or parties is not immediately appealable, regarding the parties who were disposed or as to the claims that were disposed.
It is untrue that a judgment regarding only some of the parties or claims is not immediately appealable until a final judgment is rendered as to all claims and all parties because such judgments are appealable if the judge expressly makes a determination that there is no just reason for delay.
An aerospace company contracted with a propeller manufacturer to provide propellers for its planes. Dissatisfied with the quality of the propellers, the aerospace company filed a diversity action against the propeller company for breach of contract, claiming breach of its express warranty and breach of the implied warranty of merchantability.
At the conclusion of the trial, the aerospace company submitted proposed jury instructions listing a number of defenses that the jury could not properly consider, including the aerospace company’s assumption of risk and its failure to test the propellers. The court refused to give these instructions, and instead instructed the jury on the elements of breach of express and implied warranty. The aerospace company did not object to the instructions given by the court.
After the jury returned a verdict in favor of the propeller manufacturer, the aerospace company moved for a new trial on the ground that the court erroneously refused to accept the aerospace company’s requested jury instructions. The court denied the motion and the aerospace company filed a timely appeal.
Which statement best describes the aerospace company’s rights on appeal?
A) The aerospace company waived its right to object to the jury instructions.
B) The appeals court may review the court’s refusal to include the instructions, applying a de novo standard of review.
C) The appeals court may review the court’s refusal to include the instructions, applying a plain error standard of review.
D) The appeals court may review the court’s refusal to include the instructions, applying a harmless error standard of review.
(C) is correct. Because the aerospace company did not timely object to the instructions, the court will review them using a plain error standard of review. In order to reserve its right to appeal an error in an instruction given or, as is the case here, a failure to give an instruction, a party must object on the record before the instructions are given. If adequately preserved, the instructions are reviewed using an abuse of discretion standard. However, if the objection is not made (and therefore not preserved for full appellate review), then the court’s review is limited to considering whether there was a plain error in the instruction that affected substantial rights. Thus (C) is correct, and (A), (B), and (D) are incorrect.
A woman sued her employer for sexual harassment. At the close of the trial, the employer made a motion for judgment as a matter of law, arguing that the woman’s evidence was insufficient to establish the elements of her claim. The court denied the motion.
When the jury returned a verdict in favor of the woman, the employer renewed its motion for judgment as a matter of law. In addition to the renewed motion for judgment as a matter of law, the employer also moved for a new trial, asserting that the verdict was against the weight of the evidence. The court denied both motions.
If the employer appeals the denials of both the renewed motion for a judgment as a matter of law and the motion for a new trial, what is the appropriate standard of review?
A) De novo for the renewed motion for judgment as a matter of law and abuse of discretion for the new trial motion.
B) Clearly erroneous for the renewed motion for judgment as a matter of law and de novo for the new trial motion.
C) Abuse of discretion for both.
D) De novo for both.
(A) is correct. When an appellate court reviews a trial court’s ruling on a post-trial motion for judgment as a matter of law (including a renewed one), it employs a de novo standard. It does so because the issue is one of law. In contrast, when an appellate court reviews a trial court’s denial of a motion for new trial, it employs a more deferential standard, reversing the trial court’s denial only when there is a clear showing of an abuse of discretion. Note that when a renewed motion for judgment as a matter of law and a motion for a new trial are made in the alternative and the renewed motion is granted, the court rules hypothetically on the new trial motion so that no remand is required if the ruling on the judgment as a matter of law is subsequently reversed on appeal.
Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is prevented from asserting the same cause of action in a later lawsuit by the doctrine of claim preclusion (res judicata).
When the claimant won the earlier lawsuit, the claim is said to be:
A) Barred by the prior judgment
B) Either merged into or barred by the prior judgment
C) Merged into the prior judgment
Merged into the prior judgment!!!
Although both merger and bar are used to indicate that claim preclusion (res judicata) is in effect, where the claimant won the earlier lawsuit, the claim is said to be merged into the prior judgment.
Where the defendant won the earlier lawsuit, the claim is said to be barred by the prior judgment.
Because the question specifically states that the claimant won the earlier suit, to say that the claim either merged into or is barred by the prior judgment is incorrect.
A taxi crashed into a telephone pole. The taxi’s passenger commenced a negligence action against the taxi driver, properly serving the taxi driver with the summons and complaint. The taxi driver, being an independent contractor with no right to indemnity from the taxi’s owner, turned the summons and complaint over to his insurance company. After trial, the jury returned a verdict in favor of the passenger, finding that the taxi driver’s negligence was the sole cause of the crash.
The passenger then commenced a second action, this time against the owner of the taxi. The owner also had no right of indemnity from the taxi driver. The passenger alleged that the taxi driver’s negligence was the sole cause of the crash and that the owner was vicariously liable. The passenger immediately moved for partial summary judgment against the owner based on the finding of the taxi driver’s negligence in the prior action.
If the court denies the motion, what is the most likely reason?
A) Claim preclusion bars the passenger’s claim against the owner.
B) The taxi owner is not precluded from litigating the issue of whether the taxi driver was negligent.
C) The passenger waived her right to sue the owner by not joining the owner as a defendant in the first action.
D) The taxi driver is a necessary and indispensable party to the second action.
The taxi owner is not precluded from litigating that issue. For a party to be bound by issue preclusion, (i) there must have been a final judgment; (ii) the issue must have been actually litigated and determined; (iii) the issue must have been essential to the judgment; and (iv) the party to be bound by the prior judgment must have been a party to the prior action or in privity with a party to the prior action. Here, it is the last element that is missing. The taxi owner was not a party to the prior action, and there is no indication that the taxi owner was in privity with the taxi driver. (A) is incorrect for a similar reason. Claim preclusion applies when the earlier case and the later case are brought by the same claimant against the same defendant (or where a party in the later case is in privity with a party in the earlier case). Here, the claim is against a different defendant who was not in privity with the previous defendant.
(C) and (D) are incorrect because there generally is no requirement to join joint tortfeasors in a single action. (The exception being if state law requires it.) The risk the plaintiff runs in such a situation is that she loses the first case and thereafter might be bound by issue preclusion in subsequent actions.
A corporation operated several factories that were emitting toxic chemicals into the air. The Environmental Protection Agency (“EPA”) sued the corporation in federal court for violation of several environmental laws, and the jury found in favor of the EPA. One of the corporation’s factories was located near a town, and some residents believed that their health had been harmed by the factory’s emissions. One resident sued the corporation in federal district court, alleging damages stemming from the factory’s violation of the environmental laws. The resident asserts issue preclusion (collateral estoppel) to establish the factory’s violation of the environmental laws.
If the court permits the resident to use issue preclusion to establish the violation, what is the likely reason?
A) A nonparty in the first case is always allowed to use issue preclusion (collateral estoppel) offensively or defensively against someone who was a party in the first case.
B) There was a valid, final judgment on the merits in the first case, and the same cause of action is involved in the resident’s lawsuit.
C) The court determined that it is fair and equitable to allow the resident to use issue preclusion (collateral estoppel) offensively.
D) A party can use issue preclusion (collateral estoppel) offensively when the defendant has been found to have violated a federal law.
If the court permits the resident to use issue preclusion (collateral estoppel) to establish the violation, it is likely because the court determined that it is fair and equitable for the resident to do so. Under the traditional mutuality rule, only someone who was a party in the previous case can use issue preclusion. However, this rule has been modified to allow nonparties to use issue preclusion in certain circumstances. When a nonparty wants to use a previous judgment offensively, the court must consider whether it would be fair and equitable to allow the nonparty to do so.
(A) is therefore incorrect because nonparties are not always allowed to use issue preclusion offensively or defensively.
(B) is incorrect because the same cause of action need not be involved. The same cause of action is a requirement for claim preclusion (res judicata).
(D) is an incorrect statement of the law.
A plaintiff sued a defendant in federal court for personal injuries resulting from a serious car accident. The plaintiff alleged that the defendant had been intoxicated on multiple illegal drugs at the time of the accident and had been speeding the wrong way down a one-way street. The jury was so outraged by the defendant’s behavior that they awarded the plaintiff $50 million in compensatory damages. The trial judge believes that this award is so excessive as to shock the conscience (as per the state standard) and that the plaintiff should be awarded $5 million instead.
Can the trial judge order a new trial?
A) Yes, because a trial judge may order a new trial when she does not agree with the jury’s damage award.
B) Yes, because a trial judge may order a new trial when she believes that the jury’s compensatory damages award is so excessive as to shock the conscience.
C) No, because a trial judge may not order a new trial when the verdict is excessive or inadequate.
D) No, because the trial judge should lower the award given by the jury and enter judgment on that amount.
B is Correct. The trial judge can order a new trial if she believes that the jury’s compensatory damages award is so excessive as to shock the conscience (or whatever state standard applies in a diversity case), which is the situation here.
(A) is incorrect because a trial judge cannot order a new trial merely for disagreeing with the jury’s award; she must believe it is so excessive as to shock the conscience.
(C) is incorrect because a trial judge may order a new trial when a verdict is excessive or inadequate.
(D) is incorrect because it misstates the concept of remittitur. A trial judge cannot lower a jury award and force the plaintiff to accept it. Rather, using remittitur, the judge may offer the plaintiff the choice of a lower award or a new trial, but she cannot simply lower the award.
A passenger sued a limo driver for an injury the passenger sustained in an accident in State B, and the passenger had the limo driver promptly served with a summons and complaint. Forty days thereafter, with no answer being filed, the passenger requested and was granted an entry of default by the court clerk, and a date for a hearing for a default judgment was set. Notice of the hearing for the default judgment was sent to the limo driver two weeks prior to the hearing.
Assuming that the hearing for the default judgment has not yet taken place, what is the limo driver’s best method to get a hearing on the merits of the case?
A) Have the entry of default set aside because the clerk did not have the authority to enter a default, since the amount claimed was not for a sum certain.
B) Have the entry of default set aside because no notice was given before the clerk entered the default.
C) Have the entry of the default set aside for good cause.
D) Appear at the hearing for a default judgment.
C is Correct. The limo driver’s best approach is to have the entry of default set aside for good cause. Although there are no facts to indicate that good cause exists to have the default set aside, having the default vacated before the hearing on the default judgment represents the only method by which the limo driver can get a hearing on the merits of the case. If the limo driver can have the entry of default vacated prior to the hearing for a default judgment, the hearing would not proceed, and the case would proceed as any other case in which no default was entered. (A) and (B) are incorrect, as both incorrectly state the procedure for obtaining an entry of default. Under Federal Rule of Civil Procedure 55(a), if the defendant does not answer or otherwise defend, the court clerk may enter a default on the record. The default may be entered even if the amount of damages is yet to be determined. No notice to the defendant is required for entry of default. Notice to the defendant of the hearing for a judgment in default is required when the defendant has appeared in some fashion.
(D) is incorrect. The entry of the default cuts off the defendant’s right to contest the case on the merits. Although the defendant may appear at the hearing for the default judgment to contest damages, he may not contest liability until the entry of default is vacated.
A bar prep company discovered that its copyrighted content was being used in an online simulated exam that its competitor was administering in a few days. The company filed a petition for an ex parte order to direct the competitor to immediately remove that content from its website. The company submitted an affidavit specifying why immediate and irreparable injury will result if the exam is administered, and offered to provide security for any costs or damages incurred by the competitor if it was determined that the order was wrongfully issued.
Should the court issue the order?
A) Yes, because the company submitted an affidavit with specific facts showing immediate and irreparable injury.
B) Yes, because the competitor will receive notice of the order once it is issued by the court.
C) No, because a court cannot issue an injunction unless the adverse party has notice of the hearing.
D) No, because the company has not provided sufficient certification for obtaining an ex parte order.
The court should not issue the ex parte order. A temporary restraining order may be granted by a court when it is necessary to prevent irreparable injury to a party, and the injury will result before a preliminary injunction hearing can be held. As a general rule, notice of the hearing for the issuance of the order must be given before it is issued.
However, a court may grant an ex parte temporary restraining order without notice of the hearing to the adverse party if the moving party does the following: (i) gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition; (ii) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and (iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained. Here, the company alleged irreparable injury and offered to provide security, but nothing in the facts indicates that it certified efforts to give notice to the competitor or why notice should not be required. The facts do not establish that it is impossible to provide notice to the competitor before a restraining order is issued.
(A) is incorrect because the company’s affidavit is not enough to justify the issuance of an ex parte order, as discussed above. (B) is incorrect because, while actual notice of the order also is required, notice of the hearing is required as well unless the three requirements stated above are met. (C) is incorrect because it is too broad. A court may issue an ex parte order without prior notice to the adverse party if the three requirements stated above are met.
Three drivers were in a traffic accident in State A. The three drivers were citizens of State A, State B, and State C, respectively. Only the driver from State C sustained any injuries and damage. The driver from State C filed a tort action against the State A driver, seeking $100,000 in damages. The State A driver believes that he was not at fault in any way and that the driver from State B was the sole cause of the accident. Assume State A does not recognize any claim of contribution among joint tortfeasors.
May the State A driver assert a third-party claim against the State B driver in the pending action, alleging that the State B driver was the party at fault and should pay for the State C driver’s injuries?
A) Yes, because third-party claims are permitted as long as they arise from the same transaction or occurrence as the original action.
B) Yes, because the State A driver’s third-party claim is derivative of the State C driver’s original claim.
C) Yes, provided the State A driver obtains leave of the court.
D) No, the State A driver may not maintain the third-party claim.
The State A driver may not maintain the third-party claim. Third-party claims may be maintained only if the defendant/third-party plaintiff alleges that the third-party defendant is liable to the defendant/third-party plaintiff for all or part of the defendant/third-party plaintiff’s liability to the plaintiff. Here, the defendant/third-party plaintiff (the State A driver) can make no such claim because state law does not recognize contribution among joint tortfeasors. In other words, the State A driver may raise the State B driver’s negligence as a defense, alleging that the State B driver was the sole cause of the action, but he may not implead the State B driver based on joint contribution. (A) is incorrect because the answer provides the wrong standard for third-party claims. A defending party may implead a nonparty, but only if the nonparty is or may be liable to her for any part of a judgment that the plaintiff may recover against her. This is not the case here, as discussed above. (B) is incorrect because it provides the wrong standard for a third-party impleader claim. The correct standard is stated above. (C) is also incorrect for the reasons stated above. Additionally, leave of court is required only if the third-party complaint is filed more than 14 days after service of the defendant’s original answer.
