Professional Documents
Culture Documents
Select a Court
Service of process
PJ: specific or general, 5 presence OR minimum contacts +
purposeful availment
Long arm statute
SMJ and removal (federal question, diversity, supplemental
jurisdiction)
Venue and transfers for convenience and forum non conviens
EXAM TIPS: Cotter may base venue on Residency or acts and
omissions
Choice of Law:
1. Erie Doctrine= what law a federal court applies, often
the substantive law of the state
2. Horizontal: Conflict of law rules in each state. Example-
MI court having a CA pl and a CA df, the MI court selects
the use of the law of CA.
Pleadings Facts/Issues
Exam tips: Know this Stuff from Civ pro I:
Pleading FR 7(a)
Claims
FR8 (a) 1-3
FRCP 10: count 1, count 2, and count 3
Counterclaims, cross claims, 3rd party claims
Default
Defenses
• Rule 12(b)
o SMJ
o PJ
o Venue
o Insufficient Process
o Insufficient service of Process
o Failure to state a claim upon which relief can be granted
12(d) if motion for 12(b) (6) and considers matters
outside the pleadings, the motion must be treated as
one for summary judgment under Rule 56.
12(b)(7) failure to join a necessary party under rule 19
12(b) 2-5 are waivable; 1,6,7 aren’t
• Denials
o FRCP 8 General Rules of Pleadings : An allegation – other
then one relating to the amount of damages – is admitted
if a responsive pleading is required and the allegation is
not denied. If a responsible pleadings is not required, an
allegation is considered denied or avoided.
• Affirmatives Defenses
Joinder
FR 18: P v. D can join all claims
FR 13(a) and (b): compulsory and permissive counter claims
(g) and (h) cross claims
FR 14 Indemnification or Contribution
FRCRP 20 – Permissive Joinder or [Multiple Ps or Ds] whether P or D
hinges on same transaction or occurrence AND question of law or fact
in common
Discovery
Get the evidence
Trial
Resolve fact issues
+Evidence +Facts/ Fact Issues
+Substantive Law
---------------------------
= Judgment
Appeal
Review issues of law de novo
Issues of fact that are clearly erroneous
Martin v. Wilks
ONLY PARTIES OF A SUIT ARE BOUND TO THE JUDGMENT OF THE SUIT
Certification Order
As early as practicable the court must determine whether to certify the
action. Court’s order must define the class and class claims, issues or
defenses and appoint class counsel. The order that grants/denies the
class certification can be altered/amended before final judgment.
Class Counsel
Prior to appointment, the court may designate interim counsel to act
on behalf of a positive class. The court may appoint an applicant only if
he’s adequate and the court must appoint a person who is best able to
represent the interests of the class. The class counsel must fairly and
adequately represent the interest of the class.
Notice
Once certified, the court must send the class members the best notice
practicable under the circumstances including individual to those
members who can be identified through reasonable effort. The effort
must clearly and concisely state in plain, easily understood language
the nature of the action, definition of the class, the
claims/issues/defenses, and that a class member may enter an
appearance through an attorney if desired. The court will exclude any
member who wishes to be excluded. Notice must tell members the
time and manner for requesting exclusion and the binding effect of the
class judgment on the members who stay in the suit.
Subclasses are permitted
Members can intervene or otherwise come into the action
With the court’s approval the parties may settle and/ or receive a
voluntary dismissal. The parties must file a statement identifying any
proposed agreement. The court must direct reasonable notice to all
class members who would be bound by the proposal. Any class
member object to the proposal. The court may only approve it if after a
hearing it is found fair, reasonable and adequate.
Attny fees: you must present bill to the court for approval. They will
look at the hours and how much a skilled attny in the area would
charge for the work.
Distribution: often each class member must come forward with their
damages. Some issues are decided for and on behalf on the class,
others like damages, may not be determined by the trail Dalkon shield
IUD, damages pregnancy or death.
23(a) 4 prerequisites
SCOTUS: courts must conduct a rigorous analysis into whether the
prerequisites are met b4 certifying a class action.
4. Adequacy of Representation:
• Lawyer’s XP + resource$
• Class Representative: The class
representative must have stake in the
litigation. Watch out for potentiality for
conflict among class members. Such a
conflict might be resolved by the creation of
subclasses.
A class member can intervene and become a named party
Vocabulary: Get it straight These are Specific words that Cotter wants:
Claim- FR 8(a) (2 and 3) a claim is made up of one P and one D
based on one legal theory entitling the P to relief and the
demand for the relief the P seeks.
Cause of Action(COA)- made up of one or more claims for
relief.
Lawsuit- made up of one or more COAs.
Rule 42(b) gives the trial court the authority to sever parts of a
complaint for trial
1) the same issue in s2 as in s1
2) Actually litigated and determined in s1
3) An issue essential to the judgment in s1
4) Between which parties ?
Mutual Offensive
Example: S1 Pl Jessie sues Df RR company for a personal injury
(negligence action). Pl wins so duty, breach, causation, and injury are
established. S2 Pl Jessie sues Df RR company for loss of consortium
and argues that since duty breach and causation were established as
facts by J1, all that remains is to prove injury in S2 against the RR.
4. No incentive to appeal:
if the amount in the 1st lawsuit is very small the D’s won’t care and not
litigate vigorously. And then those D’s might lose. And it is UNFAIR to
bound that D to that loss if the second suit is for a HUGE amount of
money
Full faith and credit: Cannot use the judgment if it’s from a state
that doesn’t allow non-mutual collateral estoppel.
If you win on one fact issue you can’t argue different facts in the
second suit.
Collateral Attack
Durfee v. Duke. SMJ was at issue. SCOTUS said that if the jurisdictional
issue was fully and fairly litigated you must give that
decision/judgment full faith and credit. This applies where the party
voluntarily appeared, presented his case and was fully heard and there
was an absence of fraud. Public policy dictates that there must be an
end of litigation.
GR: You cannot collaterally attack SMJ b/c court can rule on SMJ sua
sponte. If they enter a judgment they are presumed to have decided
they have SMJ. Solution is usually to appeal, however under RULE 60
(b). Reopened Judgment (asking for it to be set aside) is also an option.
When the right to make a motion is lost, the only other procedural
remedy is by new or independent action to set aside the judgment.
Yeazell text book uses these categories but Cotter hops around.
Scope of discovery
Devices and Methods
Court Involvement
Rule 26
Rule 26 is a two step process. First there are mandatory disclosures,
then there are discovery requests.
Discovery plan should use devices below in roughly the same order
Interrogatories (FR 25) can only be sent to parties and not non-
parties. Under rule you are limited to 25(per party), although at the 26f
conference or at the 16b conferences you and opponent can work out
a different number. “Interrogatories are written questions by one party
to another party in the action. They must seek information that falls
within the scope of discovery. “ (From M04)
Depositions: anyone with relevant non-priv’d info you can take their
deposition UNLESS they have a protective order in hand that protects
them from being deposed. Can adjourn deposition to get a protective
order. If you can’t get the protective order you must pay expenses for
all involved with the depo. 10 depos per side. Limited to 1 day 7hours
Unless parties agree otherwise.
Production of documents (FR 34) from parties only. If you want
documents from a non party you have to use a FR 45 using a
subpoena duces tecum.
Court involvement
Disclosure conference
Pleadings are followed by a FRCP 26f conference. The attnys are
required to get together to discuss settlement, to discuss the
issues, the 26(a) disclosures, the discovery that will be needed in
the case, discuss electronic discovery, and work out a mutually
agreed upon plan for the discovery in the case.
Exam tip: Read 26f
14 days after the conference the 1) disclosures AND 2)
discovery plan are due. 7 days or more thereafter there will
be a FRCP 16 (b) scheduling conference with the judge. At least
21 days after the 26f conference.
Scheduling order from the court:
o Limits the time for joinder or parties
o Limits the time for amendments to the pleadings
o Limits the time for making motions
o Limits the time for discovery.
Any changes to the discovery plan should be incorporated in
the 16b order.
Traditional discovery (FR 30, 34, 35) can begin after the 26f
conference and continue until the time limit is up.
Protective order
Before asking for sanctions or asking for court involvement you
must try to work it out with the opposing party.
Sanctions under rule 37 (motion to compel) or 26(g) which
applies to all discovery documents that have to be signed. GR:
discovery doc are not filed with the court, they are kept private
unless being used to support a motion or trial
The difference b/w rule 11 and rule 26(g): sanctions are mandatory
and there is no safe harbor under 26(g).
People v. Textron
Sanctions can be granted under rule 37. A judge should select the least
harsh sanction that will deter the bad conduct.
Deem fact to exist/admission
Preclude party from putting in evidence on issue in dispute
Court strikes part of the pleadings that raises a certain issue.
Dismissal of P’s claim (Gargalow case?)
Strike D’s answer making them appear to be in default, set trial
ASAP and limit to trial to damages only.
Stop the proceedings and tell P (or D) that no further action will
happen Until P complies, put pressure on P using threat of 41b
dismissal.
Hold attny in contempt and incarcerate. This is rare and cannot
be used against a party who refuses to show up for a physical or
mental exam.
Rule 56( c) “no genuine issue as to any material fact AND the movant
(i.e the moving party) is entitled to judgment as a matter of law.”
How to raise a fact issue? In the pleadings. Pleadings raise fact issues
and those are resolved by presenting evidence to a factfinder to
resolve the dispute.
Exam: you will see pleadings. Consciously determine who has the
burden of proof of the issues raised. GR: the burden of proof follows
the burden of pleading. Must prove the disputed elements of the claim.
Look out for counterclaim and cross clams…think of them as “claim
plaintiffs and claim defendants”
Burden of proof includes a burden of production (evidence presented
to the factfinder) and a burden or persuasion.
Note: Non-movant can try that it had insufficient time for discovery to
avoid summary judgment.
Burden of Proof
P – elements of the claim
D – affirmative defenses. By operation of FRCP 8(d) old version 8(b)(6)
new version the affirmative defense is considered denied b/c there is
no responsive pleadings an affirmative defense.
Burden of Proof :
Burden of production- gets you to the jury. Must come forward
with enough evidence, if you believed would allow rational jury to
find in your favor. Requires a party to “produce” = find and
represent evidence. Satisfying a burden of production means
only that a trier MIGHT rationally decided the case in one’s favor,
not that it must.
Burden of persuasion- with the jury deciding if they are in your
favor. Burden of persuasion = “preponderance of evidence “ or
“more probable than not” In a few specialized circumstances it is
clear and convincing evidence or beyond a reasonable doubt.
The order MUST limit the time to join other parties, amend the
pleadings, complete discovery and file motions.
The order MAY modify: timing of disclosures under 26(a) and 26(e)(1);
modify the extent of discovery; provide for disclosure or discovery of
electronic docs; set dates for pretrials conferences and trial.
Once the schedule is created it can only be modified good cause with
judge’s consent. A represented party must authorize at least one attny
to make stipulations and admissions about all matters that can
reasonably be anticipated for discussion at a pretrial conference.
You present a proposed pretrial order and hope the judge plagiarizes it.
Take advantage of these opportunities to posture the judge in your
favor. Example of sending a a memorandum since cotter didn’t have
an opportunity to present a proposed pretrial order. At the start of trial
judge read from the memo, the case was a slam dunk.
Call other side and see if they will stipulate to a continuance. If that
fails, go to the judge and ask for a continuance.
Common issues that get litigated are situations where the pretrial
order specifies that certain issues will be tried, certain witnesses will
testify, or certain evidence will be introduced and then the other party
tries to raise matters at trial not within the scope of the order.
Exam: pretrial order controls the trial and it is very difficult to get it
amended.
GR: crim D’s want juries and civil P’s want juries.
Historical test – merely preserves the right that was in place in 1791.
2 courts: law (jury), equity (judge) not under a writ= having no remedy
at law
Applying the historical test to new claims is difficult
Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry (SCOTUS
1990)
Would this case in a court in 1791, be litigated in a court of law or
equity?
First, most closely analogous case (writ that matches the legal
theory). This is the character of the overall action. In this case, trust
analogy/fiduciary duty of union to employees = equity.
Private rights, any setting , you will always get a jury. However with
public rights you may not get a jury.
Jury size
SCOTUS: In civil cases, a 6 person jury is sufficient to satisfy the 7th
amendment.
28 USC 1861- all litigants in Fed courts entitled to trial by jury have the
rights to grant or petit juries to selected at random from a fair cross
section of the community in the district where the court convenes. All
citizens shall have the opportunity to be considered for services.
FRCP 48- a jury must initially have at least 6 months and no more
than 12 members and each juror must participate in the verdict.
Unless the parties stipulate otherwise, the verdict must be unanimous
and be returned by a jury of at least 6 members.
FRCP 40- the scheduling cases for trial the court must give priority to
actions entitled to priority by federal statute.
Cotter Summary
Using voter registration, driver’s license lists, etc.
Questionnaires go out, they come back and are pre-screened based
on the statute. To the qualified jurors a jury summons is sent out
specifying the date they have to be present. Select 6 jurors (or 8 if
alternatives) who sit in jury box. Then voir dire. (during pre-trial
conference ask judge if judge or counsel will voir dire the jurors. In fed
court usually the judge. May I submit voir dire questions: determine if
biased, (one side of the issue over another), prejudiced (one party over
another)).
Challenge for cause (unlimited)
Peremptory challenge (limited)
Court in its discretion can grant the P additional peremptories to even
things up b/w P and D. Each party gets 3 by statute.
Factual Findings
Jury trial
General verdict
Special verdict- also tells what the facts were decided
General verdict- w/ special interrogatories
Bench Trial
Findings of fact must be expressly stated as well evidence upon which
he relied and conclusions of law.
Judgment on the verdict ( later we’ll see that a party can make a
judgment for JNOV or new trial within 10 days)
7th amendment: and no fact tried by a jury, shall be otherwise
shall be otherwise re-examined in any court of the United states, than
according to the rules of the common law. So long as there is evidence
in the record that a rational jury could have believed, no court can
overturn this verdict.
When can the judge take this away from the jury?
Excluding improper influences – if juror is bribed, threatened , or
talks to people outside the litigation about the case.
FRCP 50- Judgment as a matter of law (JML) and Motions for New trial.
If a party has been fully heard on an issue and court finds that a
reasonable jury would not have a sufficient evidentiary basis to find for
a party on that issue the court MAY resolve the issue against the party
and grant a motion for JML on a claim that or defense. The motion for
JML may be made at anytime b4 the case is submitted to the jury and
must specify the judgment sought and law/facts that entitle the
movant to the judgment.
No later then 10days after entry of judgment (or if motion addresses
an issue not decided by a verdict 10 after jury discharge) the movant
may file a RENEWED motion for JML and may include an alternative
request for new trial.
The court may: allow judgment on the verdict, order a new trial, or
direct entry if JML. If the court grants a RENEWED motion for JML it
must conditionally rule on any motion for a new trial by determining
whether a new trial should be granted if the judgment is later vacated
or reversed. The court must state the grounds for conditionally
granting/denying the motion for a new trial. Conditionally granting a
new trial doesn’t affect the finality of the judgment.
A motion for a new trial must be filed no later than 10 days after entry
of the judgment.
JNOV
JNOV tests the sufficiency of the evidence to submit a case to the jury.
(2) it tests whether the party with the burden of production (2) has met
its burden of production thus creating genuine questions of material
fact (2) on which reasonable minds could differ. In determining
whether a JNOV should be granted, the judge will not weigh the
evidence as jurors would do, (2) Rather, the judge will view the
evidence in a light most favorable to the non movant to determine
whether the party with the burden of production has met that burden.
(M 2001).
Cotter: Do we need a new trial? If appellate court finds that there is not
support for a JNOV then the jury verdict must stand. For DV a new trial
is granted b/c there is no verdict to the reinstate so judges are loath to
give DV b/c they can always rescue a case with a JNOV later if the jury
screws up.
If JNOV granted and appellate court reverses judge will simply reinstate
the jury verdict.
A motion for JNOV cannot be approved UNLESS the motion for DV was
made first. Why? 7th Amendment says “no fact tried b4 a jury shall be
otherwise reexamed….than according to the rules of CL.” SCOTUS has
held that CL had an analogue to DV, but NOT for JNOV. SCOTUS views
JNOV as a delay ruling on a motion for a DV. A motion for DV must be
made b4 the case is submitted to the jury. Remember, to be able to
make a motion for JNOV, you must make a motion for DV.
New Trial
FRCP 59- New Trial; Altering or Amending a Judgment
The court may, on motion, grant a new trial on all/some of the issues
after a jury or nonjury trial. For a nonjury trial, the judgment can be
opened to take additional testimony, amend findings of facts and
conclusions of law or make new ones and direct the entry of a new
judgment.
The motion must be made no later than 10 days after the entry of
judgment.
The opposing party has 10days after being served to file opposing
affidavits, but the period can be extended up to 20days either by the
court for good cause or by the parties stipulation.
The court can sua sponte order a new trial no later than 10 days
after entry of judgment for any reason that would justify granting one
to a party’s motion.
Movant can make a motion for JNOV OR can make motion for a new
trial.
What are the grounds for a new trial? Federal rules don’t tell you but
Michigan rules do. Great weight of the evidence, basically jury
wasn’t reasonable in interpreting the evidence. Michigan Grounds
whenever substantial rights are materially affected for any these
reasons:
Irregularity in the proceedings of the court, jury, or prevailing
party, or order of the court or abuse of discretion which denied
the moving party a fire trail.
Misconduct of the jury of prevailing party
Excessive or inadequate damages influenced by passion or
prejudice
Verdict clearly or grossly inadequate or excessive
A VERDICT OR DECISION AGAINST THE GREAT WEIGHT OF
EVIDENCE OR CONTRARY TO THE LAW
Material evidence newly discovered that couldn’t have been
discovered previously with reasonable diligence
Error of law in the proceedings or mistake of the fact by the court
Same grounds as FR 60(b)
The trial judge has wide discretion to set the verdict aside but cannot
do it simply b/c judge would have come to a different conclusion if he
were the trier of fact.
Week 11 Appeals
For exam, appeals as procedural device, is a safety net, mechanism by
which we determine whether trial court has made a reversible error
and fix errors that may have occurred at the trial level. Primary
function is to review the proceedings of the trial court to determine
whether there is an error, which if correct could change the result (aka
reversible error).
Who can appeal? GR: a party who receives an adverse judgment has
the right to appeal. Aka the losing side.
Exception: state small claims courts
Exception: an appeal doesn’t lie (even if appellate court thinks
the trial court erred) if the party wins on one theory and loses on
others IF the relief sought under the other losing theories was identical
to that awarded under the winning theory b/c there was no “adverse”
judgment. The party got what it was after.
Exception: even if relief was the same under both the winning and
losing theories, if the theories differ in their collateral
consequences, then the appeal will lie.
GR: you cannot raise an issue on appeal unless you raised/ preserved it
at trial court.
3 Exceptions
SMJ of the trial court, appellate court can raise it sua
sponte.
New law after trial court has decided the case but b4
appeal is decided.
Plain error and to let it stand would cause a miscarriage of
justice. Not easy to argue if same lawyer is doing appeal
who did the trial.
Raise an issue
Make a motion= raise an issue
Oppose a motion= raise an issue
Object to evidence = raise an issue
Judge grants objection the issue is raised for the side that proffered the
evidence
Move for DV= raise the issue
Make a good record at the trial court.
Court of Appeals must have SMJ for the appeal. It falls into 2
categories:
28 USC 1291: Right to appeal final decisions on the trial
court. A final decision leaves nothing for the trial court to
do. Example: dismissal for want of jurisdiction, dismissal for
failure to state a claim, dismissal as a discovery sanction, entry
of default judgment for a specified sum, SJ, DV, judgment
entered on the verdict, JNOV entered. Anything that
terminates the litigation in the trial court can be
appealed as a right.
BY RIGHT
1. if involves the granting, denial, modification or
anything having to do with an injunction you
can appeal immediately.
2. Imposition of a receivership (taking of
someone’s property and giving to receiver for
safekeeping, example in bankruptcy.)
3. Admiralty?????( not sure) ask cotter
BY LEAVE
• Any other interlocutory decision however it
requires BOTH trial court and appellate court of
approval
28 USC 1292 – Interlocutory decisions, when a district judge, in making
an order not otherwise appealable, is of the opinion that such order
involves a controlling question of law as to which there is substantial
ground for differences of opinion and that an immediate appeal from
the order may materially advance the ultimate determination of the
litigation he shall so state in writing. Court of Appeals may in its
discretion permit an appeal if application is made within 10days after
entry of the district court’s order.
Cotter: Under FRAP 4 you only have 30 days in which to file your notice
of appeal. Written judgment starts 30day period ( historically problem
with oral judgment). SCOTUS has decided that this issue determines
jurisdiction. Too soon (old rule), too late you won’t get an appeal. If
filed too early, doesn’t matter anymore.
2) A class action is filed in which there are 5,000 members who must be notified.
Postage is $. 37 each. Printing of the notice $.13each. The cost of notifying the
class will be:
a. $2,500*
b. $25,000
c. $250,000
d. $2,500,000
3) Barb is Joe’s second wife. She is suing the phone company for an injuction, wish
them to delete the list of Mrs. Jane Axt (joe’s ex wife), and replace it with hers.
The phone company moves to dismiss the action on the grounds that joe’s ex wife
is an indispensable party. Assuming joinder of jane is not feasible,
a. The motion should be granted b/c Jane is not necessary, but she is
indispensable.
b. The motion should be granted b/c Jane is necessary and indispensable. *
c. The motion should be denied b/c Jane is indispensable but not necessary.
d. The motion should be denied b/c Jane is necessary but not indispensable.
5) Tonya thinks Nick has sued the wrong person. She was not involved in the
planning the attack. However, Tonya thinks that her bodyguard, Danny, was
involved along with Sal and that Danny is therefore liable to Nick. What should
she do?
a. File a motion to dismiss for failure to join an indispensable party.
b. File a cross-claim action against Danny
c. File an impleader action against Danny
d. File an interpleader action against Danny and Sal
e. None of the above. *
6) Nick’s complaint and summons was hand delivered to Tonya on April 4, 1994, by
a person over the age of 18 and not a party to the lawsuit. Tonya must respond to
the complaint?
a. On or before April 21, 1994
b. On or before April 24,1994
c. On or before April 25, 1994*
d. On or before June 3, 1994.
e. She need not respond b/c the complaint was not properly served.
7) Tonya initially responded to the complaint by filing a motion to strike the claim
for punitive damages. That motion was denied. Assuming a good argument was
made in support of each defense, Tonya should assert which of the following
defenses in her answer:
i. Lack of subject matter jurisdiction
ii. Statute of Limitations
iii. Failure to state a claim upon which relief can be granted
iv. Lack of personal jurisdiction
b. i. – iv
c. i. iv only
d. i. ii only
e. i.-iii only*
f. i. only
8) Tonya has a claim against Nick based upon Nick’s alleged theft of one of Tonya’s
designer bags two yrs ago. Tonya filed this claim in federal court b4 it had been
dismissed for lack of smj. She then filed the action in state court, but chose to
voluntarily dismiss the action. Which of the following is true.
a. Tonya cannot assert this claim in this action*
b. Tonya can assert this claim as a permissive counterclaim against Nick
c. Tonya can assert this claim as a compulsory counter claim against Nick
d. Tonya’s claim is barred by claim preclusion principles
e. Tonya’s claim is barred b/c it has been dismissed twice.
9) Tonya wants to determine the extent, if any, of the physical injury alleged by Nick
in her complaint. She should :
I. Serve interrogatories on the ice rink’s trainer who
treated Nick when she saw first attacked.
II. Serve a request pursuant to rule 34 upon Nick’s regular
doctor to have her produce copies of his files on the
injury.
III. Serve a notice to take the deposition of any expert
nick’s attorney retained for the purposes of the
litigation who, although she will not testify at trial, has
examined Nick and produced a report for use by Nick’s
attorney regarding Nick’s physical condition.
IV. Serve a copy of a motion filed with the court requesting
a physical examination of Nick.
b. I-IV
c. I, II, and IV only
d. I and III only
e. IV only*
f. I only
10) Nick’s lawyer is making the complaint. To comply with the pleading
requirements in the FRCP and obtain, w/o discovery requests, information such as
the names and addresses of all witnesses the defendants are aware of who have
information relevant to Nick’s claim, Nick’s lawyer MUST, at a minimum:
I. Plead as many facts with particularity as possible.
II. Provide only a short plain statement of the claim
showing that the pleader is entitled to relief (notice
plead).
III. Provide a short and plain statement of the grounds upon
which the court’s jurisdiction depends.
IV. Include a demand for judgment for the relief sought by
Nick.
b. I, III, & IV only*
c. II, III & IV only
d. II & IV only
e. I & IV only
f. I only
11) Nick wants to get copies of handwritten notes and envelope with sal’s name on it
which were found in a dumpster by a restaurant owner, rusty recall. To get the
documents as inexpensively as possible, Nick should:
a. Serve recall with a request for production of documents pursuant to rule
34
b. Subpoena recall demanding that the documents be produced. *
c. Subpoena recall, requiring recall to attend a deposition and to bring the
requested documents to that deposition.
d. Wait for recall to provide the mandatory initial disclosures required by
rule 26(a)
e. File a motion to compel production against recall.
12) Assume Tonya and Sal responded to Nick’s complaint by filing and serving
answers. No other action has been taken in the case. Immediately after serving her
answer, Tonya serves nick with a set of interrogatories asking for information on
all offers of endorsements which were written after her silver medalist finish in
the Olympics. Nick refused and filed objections to the interrogatories. The dispute
is not resolved through an exchange of letters. Tonya has filed a motion to compel
answers to the interrogatories. How should the court rule on Tonya’s motion?
a. Grant the motion b/c the info is relevant to Nick’s claim and is not
privileged
b. Grant the motion b/c discovery can conducted in any sequence
c. Deny the motion b/c information is confidential.
d. Deny the motion b/c the interrogatories were served too early in the
litigation. *
e. Both a and b.
13) In the course of his deposition, Sal admits facts that he denied in his answer. The
answer was signed by sal’s lawyer, Dolce Gabana. When questioned about this
inconsistency, sal indicates that he never saw the answer b4 it was filed and
served and that he was never asked about the particular fact at issue by Gabana
before the answer was filed and served. Dolce Gabana is an associate in the firm
of Burberry. Nick files a motion with the court seeking monetary sanctions
including the reasonable attorneys fees incurred by nick b/c of this conduct. The
court should:
a. Grant the motion awarding sanctions against Sal, Gabana, and Burberry
b. Grant the motion awarding sanctions against Gabana and Burberry only.
c. Grant the motion awarding sanctions against Gabana only.
d. Deny the motion b/c monetary sanctions are no longer available for such
conduct in any circumstances.
e. Deny the motion b/c it was filed prematurely *
14) After the pleadings closed, Tonya decieded to file a motion to have the case
dismissed. She wants to court to consider the complaint, her answer, sal’s answer
and an affidavit from Danny which states that Tonya had nothing to do with the
conspiracy. The motion filed by tonya should be entitled:
a. Motion for a judgment as a matter of law
b. Motion to dismiss for failure to state a claim upon which relief can be
granted
c. Motion for summary judgment *
d. Motion for Judgment on the pleadings
e. Motion for directed Verdict
15) Assume Tonya and sal file answers to nick’s complaint. Each of the defendants’
asserts as a defense that the injury to nick’s knee was caused by her having fallen
during practice on the day in question, not by the blow from the baton. In
response to theses allegations, Nice should file and serve which of the following:
a. Response to defendants’ answers
b. Reply
c. Counterclaim denying the allegations in the answers
d. Cross-claim denying allegations in Answers
e. None of the above *
16) No evidence was presented by nick during the trial connecting tonya in any way
to the conspiracy. Nick rested her case. Tonya then presented her case, testifying
that she was unaware of any conspiracy and never attended any discussions of a
plan to harm nick. Tonya rested her case. No motions were made during the trial,
although objections were asserted by tonya’s lawyer to certain testimony. At the
conclusion of the trial, the jury returned a verdict for Nick on all counts against
both tonya and sal. What should tonya’s counsel do?
a. Make a motion for a new Trial.*
b. Make a motion for Judgment as a matter of law.
c. Make a motion for summary judgment
d. Make a combined motion for judgment as a matter of law and, in the
alternative, for a New Trial.
e. Ask for a written statement of the jury’s reasons for its verdict.
17) Under the presumptive limits on discovery imposed by the FRCP, the maximum
number of specifications which can be included in Documents Requests served by
Tonya on Nick is:
a. 10
b. 25, including sub parts
c. 25 total, counting the specifications served by sal
d. 0. Document requests cannot be served on nick
e. None of the above. *
18) The allegations in Nick’s complaint regarding tonya’s involvement in the
conspiracy stated that nick did not, at the time the complaint was field, have any
evidentiary support for theses allegations. However, the complaint stated that nick
would likely be able to develop evidentiary support for theses allegations after a
reasonable opportunity for these allegations after a reasonable opportunity for
further investigation. Nick’s lawyer will be subject to rule 11 sanctions:
a. For filing a claim for which nick’s lawyer admittedly had no evidentiary
basis.
b. If, upon learning that evidentiary support for certain of the allegations
cannot be obtained, nick’s lawyer fails to amend the complaint to
withdraw those allegations for which no support is obtained.
c. If upon learning that evidentiary support certain of the allegations cannot
be obtained, Nick’s lawyer persists with the contentions represented by
those allegations. *
d. If upon learning that evidentiary support for certain of the allegations
cannot be obtained. Nick’s lawyer fails to supplement any interrogatory
answers which had been previously provided to tonya.
e. If nick does not prevail at trial with respect to this contention.
19) A serves B with a complaint. B responds by filing an answer which denies the
allegations in the complaint and asserts a counterclaim. B then discovers that he
has a viable defense for lack of personal jurisdiction (assume already in Federal
court) B:
a. Cannot assert this defense as it was waived by failing to include the
defense in the answer.
b. Can amend his answer to include this defense as long as the amendment is
done within 20days after the original answer was served.
c. Can file a post-answer motion raising this defense since he did not file a
pre-answer motion.
d. Can amend the answer to include this defense as long as he does so before
a responsive pleading to his answer is served. *
e. Can amend the answer to include this defense b/c leave to amend should
be liberally granted where justice so requires.
20) (assume already in federal court) In which of the following actions would a
defendant be allowed to make a jury demand:
I. Action seeking specific performance in which the
defendant has asserted a permissive counterclaim
seeking money damages.
II. Action seeking replevin of goods in the possession of
the defendant
III. Action for ejectment to remove defendant from
plaintiff’s property
IV. Action seeking recision of a contract.
b. I, II and III only*
c. I, II and IV only
d. I only
e. II only
f. None b/c a df cannot make a jury demand.
21) Which of the following must be pleaded particularity:
I. The circumstances constituting fraud
II. Malice
III. Intent
IV. Any claim seeking punitive damages
b. I –IV
c. I and III only
d. I and IV only
e. I and II only
f. I only *
22) Which of the following rules are immediately appealable by statute without any
additional action on the part of the District court:
I. Ruling denying a party’s jury demand.
II. Ruling granting a motion for new trial
III. Ruling denying a motion for judgment as a matter of
law and entering judgment on the jury’s verdict
IV. Ruling granting a motion for summary judgment.
a. I and IV only
b. II and III only
c. II and IV only
d. III and IV only*
e. IV only
23) A party does not have to provide mandatory initial disclosures:
I. If the disclosures would be harmful to the disclosing
party’s case.
II. If the party asserts a general objection stating that
“certain information is withheld on privilege and work
products grounds.”
III. If the opposing party has not provided its disclosures.
IV. Regarding specific facts admitted in the Answer
a. I, II, and III
b. II only
c. IV only *
d. I and III only
e. III and IV only
24) Which of the following is NOT required as a pre requisite to allowing one or
more members of a class to sue on behalf of all:
a. Commonality
b. Typicality
c. Numerosity
d. Compatibility *
e. Adequacy of representation
25) Judge X is presiding in the case of Adams v. Big Corp. The best argument for
requiring Judge X to rescues herself is:
a. Judge X commented to the jury on the credibility of one of the witnesses
for adams.
b. Judge X’s spouse owns stock in Big Corp. But Judge X does not own any
stock and is unaware, b/c she has made no inquiry of her spouse’s
holdings. *
c. Judge X discussed materials of the case to the public
d. Judge X’s gardener owns stock in Big Corp.
29) P sues D for breach of contract seeking money damages and an injunction
prohibiting further breaches. P demands a trial by jury. D moves to strike the jury
demand.
a. The motion should be denied b/c a breach of contract action seeking
money damages would have been tried in 1791*.
b. Denied b/c courts of law and equity have merged
c. Granted for the reason P is seeking equitable relief
d. Granted b/c P has improperly joined legal and equitable claims.
30) Ron’s car was struck by Jim who allegedly was driving negligently. Mary was a
passenger in Ron’s car. Mary sues Jim for her personal injuries. Mary wins b/c the
jury decided that Jim was negligent. Now Ron sues Jim for Ron’s personal
injuries
a. Ron can use collateral estoppel offensively only if mutuality is not
required *
b. Jim cannot use collateral estoppel offensively b/c the second suit involves
a different a cause of action
c. Ron cannot use collateral estoppel but jim can
d. Ron can use CE offensively b/c his non-negligence was determined in
Mary’s suit.
31) Assume there are two lawsuit, each of which involves only one claim, and a
judgment is entered in the first action. Select the FALSE statement:
a. It is possible that both res judicata and collateral estoppel may apply in the
second suit. *
b. It is possible that neither RJ nor CE would apply in the second suit
c. It is possible that either RJ or CE could apply in the second suit
d. RJ applies in the second suit only if the same cause of action is being re-
litigated