Civil Procedure 2

Plaintiff sues defendant for failure to repay a loan. Plaintiff claims $100,000 in damages. At trial, the defendant is cross-examining one of plaintiff's witnesses. The trial transcript shows that the following testimony occurred: "Question: Isn't it true that the plaintiff has a reputation as a liar and a conman? Answer: Yes." The jury returns a verdict in defendant's favor and the judge enters a judgment against plaintiff. Plaintiff then files an appeal arguing that the judge should not have permitted the witness to answer the question about plaintiff's character. which of the following statements is true?

Any error in permitting the witness to answer the Q was waived by the P bc P didnt object to the allegedly impermissible testimony. Generally, before an error is preserved for appeal, the appealing party must have objected on the record to w/e error it alleges. Here, the facts dont state that P objected to the testimony. Accordingly, any error was waived by the P. -P needed to object to the Q before the answer was given. Failure to object waived the error. So, P hasnt preserved the error for appeal. -There is nothing in the facts to suggest that the appeal is moot. -even assuming the Q was impermissible, it wouldnt have given rise to an interlocutory appeal. P should have objected to the Q and then appealed from the judgment.

Why does Rule 46 require a party to state the grounds for its objection on the record?

Appeals are generally limited to actions that the party objected to or circumstances where it specifically requested particular action, but the court refused to do so. But appeals are also generally limited to the grounds stated on the record for the request or objection. This is because the courts want the parties to present their best arguments at trial. By only permitting the parties to appeal on grounds that were presented on the record at trial, the rules incentivize the parties to present their strongest arguments at trial (i.e., it penalizes sandbagging).

Why can only adverse judgments be appealed?

Appeals are only permitted from adverse judgments because it would be a waste of judicial resources for appellate courts to hear cases where they can do nothing. If a party has received all their requested relief (i.e., the judgment is not adverse), then there is nothing for the appellate court to do. It cannot order any further relief. Thus, an appeal would be a waste of time and resources.

What are the potential advantages of arbitration over traditional litigation?

Arbitration, depending on how it is structured, can have several advantages over litigation. First, an arbitration decision is often more final than a court decision as there are usually no appeals from arbitration decisions. Second, since the arbitration is created by contract, the parties can control the structure of the arbitration so that is suits their needs. Third, depending on what choices the parties make about how to structure the arbitration, arbitration can be cheaper than litigation (e.g., if they parties limit the scope or amount of discovery). Fourth, the parties can choose experts as the arbitrators, if they want. In situations where expertise in a particular matter would be advantageous, arbitration could be better than litigation. Fifth, arbitration can be set up so that it is private, whereas the default assumption is that litigation is public.

A plaintiff filed a breach of contract action based on diversity jurisdiction in federal district court. In her answer, the defendant alleged that she was not liable to the plaintiff due to a novation. The plaintiff did not reply to this allegation and the court did not order the plaintiff to do so. How should the ct treat the D's novation allegation?

As denied by the P, bc the P wasn't req'd to respond to the D's answer. Under Rule 7(a)(7), a reply to the D's answer is made only when the P is order to do so by the ct. thus, the P is deemed to deny any allegations in the D's answer, including any affirmative defs, if not ordered to reply. See Rule 8(b)(6). While generally a D is req'd to respond in her answer to allegations made by the P in the complaint, the P is prohibited from responding to an answer unless ordered to do so by the ct. consequently, allegations contained in the D's answer are deemed denied unless the ct orders the P to reply to the answer. A P would have to respond to allegations made by the D as part of a counterclaim.

What components must an answer contain? What other component may it contain? When is this latter component required?

At a minimum, an answer must comply with Rule 8(b)(1). That means it must admit or deny the allegations in the complaint. It must also state any defenses that the defendant wishes to raise to the claims in the complaint. A complaint may also (but is not always required) to contain a counterclaim. If a party has a claim that would be a compulsory counterclaim under Rule 13(a)(1), then the party must include the counterclaim, or it will be lost via claim preclusion. A counterclaim is compulsory when it arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim.

Explain the process by which jury instructions are created.

Before the close of evidence, the parties file written requests for the jury instructions they would like. See Rule 51(a). Then, before the final arguments, the judge must inform the parties which instructions she intends to give to the jury. See Rule 51(b)(1). The parties then have an opportunity to object to these instructions. There are two different minds of objections the parties can make. Parties can object to instructions the judge plans to give as well as object to the judge's decision to decline to give a requested instruction. See Rule 51(b)(2). The judge will then rule on the objections and inform the parties what the final jury instructions will look like.

When an attorney signs a pleading, what requirements is the attorney certifying have been met?

By signing a pleading, an attorney certifies that the requirements of Rule 11(b) have been met. These requirements are: 1) that the pleading is not presented to harass or delay the litigation; 2) that the attorney has conducted an inquiry that is reasonable under the circumstances; 3) that the claims or defenses are warranted by existing law or by a nonfrivolous argument for modifying that law; and 4) the factual contentions have evidentiary support or will likely have evidentiary support.

Explain why Coca-Cola was ordered to disclose the secret formula for Coke.

Coca-Cola's secret formula was a confidential trade secret, but it was still within the scope of discovery because it was relevant and non-privileged. First, the formula was relevant because comparing the formulas for Coke and Diet Coke was one valid way of determining whether the two products were similar enough to be covered by the existing contract. Second, the information was a trade secret but it was not subject to any privilege. For example, the secret formula was not the result of a request for legal advice and was not covered by the attorney-client privilege. As a result, the information was discoverable and the court ordered Coca-Cola to produce it.

What is collateral attack and under what circumstances are parties permitted to collaterally attack a judgment?

Collateral attack is the name given to the practice of attacking the validity or enforceability of an earlier judgment in a later proceeding. It is generally disfavored today because it undermines the "Full Faith and Credit" clause. Under the Full Faith and Credit clause, a court faced with a judgment of an earlier court is supposed to give the same effect to that judgment as the issuing court would have given to its own judgment. As the purpose of collateral attack is to convince the second court not to give effect to the earlier judgment, it is generally disfavored. However, as the Supreme Court indicated in V.L. v. E.L., there are some circumstances where collateral attack is permitted. The two examples provided in V.L. v. E.L. are when the issuing court lacked personal jurisdiction over the parties and where the issuing court lacked subject matter jurisdiction over the claims. Other cases have indicated that a judgment procured through fraud can also be collaterally attacked.

What information can be protected by the attorney-client privilege? What does it mean for information to be privileged?

Communications are protected by the attorney-client privilege when they meet three criteria. First, the communication must be between a lawyer and her client. Second, the communication must be for the purpose of obtaining or providing legal advice to the client. Finally, the communication must be confidential. A communication that meets all three criteria is protected by the attorney-client privilege and neither the client nor the attorney can be forced to disclose the content of the communication during litigation.

What are compensatory damages? What are punitive damages? How are they different?

Compensatory damages are designed to compensate a party for harm they have suffered. Common forms of compensatory damages are lost profits or wages, medical expenses, and pain and suffering. Punitive damages are designed to punish a party for egregious conduct and deter them from repeating that conduct. Punitive damages are usually only available when a party's conduct was willful or deliberate rather than simply negligent. The key difference between them is that punitive damages are not related to the amount of harm suffered (unlike compensatory damages). Punitive damages are determined by the amount of money needed to punish or deter the offender. Consequently, if the offending party is particularly wealthy (e.g., a large corporation) it might require a very large punitive damage award to appropriately punish and deter it.

In an excessive use of force case stemming from an allegedly unlawful arrest, the plaintiff has sued the police department. Plaintiff alleges that the police department failed to have policies and procedures in place to properly supervise the level of force used by its officers. She did not sue any individual officers. Plaintiff wants to find out about the conduct of the officer who arrested her, particularly whether he has previously been accused of the excessive use of force. She sent a notice of deposition to the officer as well as opposing counsel indicating the date and time on which the deposition was to take place. The officer did not show up for the deposition. Which of the following statements is true?

D police dept can seek the costs of its attending the dep from P. The officer is not party to the litigation. Therefore, he has no obligation to appear in response to a notice of deposition. If P wishes to depose the officer, the appropriate was to do this would be through a subpoena under Rule 45. Since the dep was improperly noticed, D may seek its costs of attending the dep from the P. Since the dep was improperly noticed, P may not seek sanctions against the officer. Dep notices to individuals don't have to specify the subj matter of the dep. That obligation only applies to dep notices directed at orgs. Bc the officer isn't a party to the litigation, hes not subj to a motion to compel.

A man sues a woman for negligence arising out of a car accident. In the complaint, the man alleges that the woman ran a red light and struck him while he was walking in a crosswalk. In her answer, the woman admits that she struck the man while he was walking in a crosswalk, but denies that she had a red light and alleges that the man was unlawfully crossing the road while her light was green. During discovery, the man deposes a witness who testifies that the woman's light was green. The woman moves for summary judgment and includes the witness' testimony and her own sworn affidavit stating that she had a green light at the time of the accident. The man responds with his own affidavit stating that he had a green walk sign at the time of the accident and that therefore the woman must have had a red light. How should the ct resolve the woman's s/j motion?

Deny it bc the man's affidavit creates a genuine issue of material fact. The key Q is whether the woman ran a red light when she entered the intersection. The woman makes her initial showing that she didnt have a red light by providing the dep testimony of an eyewitness who says that her light was green. The burden then shifts to the man to create a genuine issue of fact by providing some evidence that contradicts the woman's evidence. The man does this with his own affidavit that says his light was green. the issue of whether the woman's light was green is thus disputed and a genuine issue of material fact is present. The s/j motion should be denied. -Parties can support or oppose s/j w/ affidavits. See Rule 56(c)(4). -one cannot disregard the man's affidavit w/o assessing his credibility as a witness. But the ct isnt permitted to assess the man's credibility as a witness during s/j. That is the role of the jury. At trial, the jury could decide that the man is self-interested and discount his testimony, but that doesnt lead to s/j.

A woman bought a toaster from an appliance store. The woman alleged that the toaster was defective and caused a fire that caused extensive damage to her kitchen. She filed an action in strict liability against the owner of the appliance store. The woman requested a jury trial. Both the plaintiff and the defendant introduced expert testimony as to the cause of the fire. The plaintiff's expert testified that the fire was caused by the toaster. The defendant's expert testified that the fire was caused by faulty wiring in the walls of plaintiff's home. Plaintiff also presented evidence about the value of the damage to her kitchen and defendant did not contest that evidence. After all sides rested, both parties moved for judgment as a matter of law in their favor. The judge denied both motions. The case was then sent to the jury, which returned a verdict in favor of the woman. The owner of the appliance store then renewed the motion for a judgment as a matter of law and, in the alternative, made a motion for a new trial. What should the TC do?

Enter a verdict for the woman. -a renewed motion for JMOL can be combined with a motion for a new trial. See Rule 50(b). -the appeals ct cant grant a new trial on these facts. It is the jury's role to evaluate the credibility of the witnesses and its generally an error for the judge to replace the jury's evaluation with their own. In this case, both parties presented expert testimony about the cause of the accident. That testimony conflicted and it was the jury's role to evaluate that testimony and decide what it believed happened. Thus, the ct couldnt grant a new trial in D's favor w/o abusing its discretion. -JMOL is appropriate when one party fails to present any evidence to support an ele that it bears the burden of proof on at trial. P bore the burden of proof at trial on showing that the toaster was the cause of the fire. P did present evidence that the toaster cause the fire through its expert witness. In addition, P's evidence about the extent of her damages wasnt contested by D. As a result, the ct shouldnt grant JMOL.

If one wanted to change the number of Supreme Court Justices, how could that be done? Why did you recommend this method?

Even though the existence of the Supreme Court is required by the U.S. Constitution, the Constitution does not specify the number of Justices. So, changing them would not require a constitutional amendment. Rather, the number of Justices is determined by statute, specifically 28 USC 1. Thus, changing the number of Justices would only require that Congress pass a new law specifying a different number of Justices.

A woman was injured when her car was hit by a delivery truck owned and operated by a man. She sued the man in federal court. At the beginning of discovery, she disclosed to the man a list of all witnesses to the accident, all documents she had in her possession, and a computation of her damages from the injury. A short time later, she learned of another witness to the accident who contacted her after reading about the accident in the paper. At trial, she produced the new witness as part of her claim because this witness had an excellent view of the accident. The man argued that the witness should be excluded because the woman failed to disclose him. How should the court rule?

Exclude the witness because the woman did not supplement her initial disclosures. A party must supplement a discovery response with any information that would have been subject to the mandatory disclosure requirement [Fed. R. Civ. P. 26(e)]. If the party fails to comply, this may lead to the exclusion of that evidence at trial [Fed. R. Civ. P. 37(c)(1)]. Here, the woman had to supplement her discovery response once she learned of the witness's existence since his disclosure as a witness would have been mandatory in her initial discovery response. A party must make mandatory disclosures based upon the information then reasonably available. Her initial disclosures may have met this standard. However, once the woman learned of the witness' existence, she had a duty to supplement her initial disclosures to disclose the new witness, irrespective of whether her initial disclosures were adequate when first produced.

Plaintiff moved to Chicago after giving birth to a child in Georgia and has no plans to leave Illinois. Plaintiff's child had severe birth defects. Within the statute of limitations, in federal court in Illinois, plaintiff sued her Georgia physician for wrongful birth, seeking five million dollars in damages. Neither Illinois nor Georgia recognizes wrongful birth claims. The defendant doctor has instructed her attorney to end this case as soon as possible. What should D's attorney do?

File a single pre-answer motion asserting lack of personal jx and failure to state a claim. Combining these two defenses into the same pre-answer motion is the best and quickest way to try and end the case.

Explain what the Class Action Fairness Act (CAFA) does.

First, CAFA creates a new form of original jurisdiction for federal courts. Federal courts now have original jurisdiction over class actions with a total value of more than $5 million if any member of the class of plaintiffs has a citizenship different from any defendant. In addition, CAFA made it relatively easy for defendants to remove class actions that met the jurisdictional requirements of CAFA from state court into federal court. Only if a high percentage of the class members (greater than two-thirds) are from the same state as the defendant will federal courts decline jurisdiction over the matter. The result is a system where large numbers of class actions filed in state court and based on state law can be easily removed to federal court. It appears to be an attempt by Congress to strip state courts of the ability to hear most class action litigation.

What kind of mutuality is generally required for claim preclusion? Define it. Is there an exception to this requirement?

Generally, claim preclusion requires complete mutuality. Complete mutuality exists when the parties to the second lawsuit were also parties to the first lawsuit. There is also an exception to the requirement of complete mutuality when privity exists. Certain substantive legal relationships place a party in privity with another party. Where a new party in the second lawsuit is in privity with a party who was present in the first lawsuit, it is treated as if that new party was a participant in the first lawsuit.

Are arbitration agreements enforceable in the United States?

Generally, yes. The Federal Arbitration Act (FAA) establishes a strong public policy in favor of the enforceability of arbitration agreements. The FAA is a federal statute that applies in both federal and state courts. Under the FAA, an arbitration agreement will be enforceable unless the party opposing the arbitration agreement can demonstrate one of the traditional grounds for revoking a contract. See 9 USC Sec. 2. The defense most commonly raised by parties who wish to litigate despite an arbitration agreement is unconscionability. If a party can demonstrate the arbitration provision is unconscionable then it is not enforceable.

Plaintiff performed extensive renovation work on Defendant's home. Defendant refused to pay for the work because Defendant claimed the work was not satisfactory. Plaintiff filed a breach of contract claim seeking money damages a week before the statute of limitations ran. One month later, at the beginning of discovery, plaintiff realized that the contract may not have been validly executed. As soon as this information became apparent, plaintiff filed a motion to amend her complaint and add a claim for quantum meruit (a claim to recover for the reasonable value of services rendered) for the work she did on the renovations. How should the ct rule on P's motion?

Grant the motion to amend. P moved to amend "as soon as" the info indicating the K was not validly executed became available. Given that leave to amend should be freely given when justice so reqs, the P's motion to amend should be granted. There is little evidence of prejudice, only one month has passed and discovery has only just begun, so D can easily seek discovery on the new theory. Moreover, the new theory doesn't appear to be substantially different from the old theory, so its not at all clear that responding to the new theory would prejudice D even if discovery were already closed.

Describe what will happen if the defendant is served with a copy of the complaint but fails to respond.

If a party against whom judgment is sought fails to plead, then the clerk of the court will enter a default against that party. See Rule 55(a). The default determines that the plaintiff has won its claim but does not establish the amount of damages. That must be established in a second stage of the process. If the claim is one for a sum certain (i.e., one that can be easily and fairly precisely established - for example liquidated damages) then the clerk will enter a default judgment for that amount. See Rule 55(b)(1). If the damages are not a sum certain (for example lost profits or pain and suffering) then the plaintiff must apply to the court for a judgment. In such a case, the court will usually conduct a hearing to establish the amount of damages. See Rule 55(b)(2).

Plaintiff sues defendant for breach of contract. At trial, plaintiff presents evidence that it ordered and paid for 3,000 widgets but that defendant delivered only 1,000 widgets. Plaintiff presents evidence that it paid $100,000 to purchase 1,000 widgets from another supplier to replace some of those which were not supplied by the defendant. In addition, plaintiff presented evidence that it suffered consequential damages of another $100,000 when it was unable to fill an order from a customer for widgets because it did not have enough on hand. Defendant requests an instruction that reads: "Consequential damages are not permitted in breach of contract cases." The judge agrees and instructs the jury not to award consequential damages. The jury finds for plaintiff and awards plaintiff $200,000. The judgment has not yet been entered. What should D do?

Make a motion for a new trial bc there is a flaw in the verdict. The jury was instructed not to award consequential damages and the P only presented evidence of $100K in non-consequential damages. The correct response to a flawed verdict is a motion for a new trial. -the judgement hasnt been entered, so an immediate appeal isnt available. -the verdict appears to be inconsistent with the jury instructions. This suggests a flaw in the verdict.

Plaintiff files suit against the defendant for negligence. In the key paragraph of the Complaint, the plaintiff alleges that: "On April 13th at 3pm, at the corner of State Street and Monroe in the City of Chicago, defendant negligently drove his vehicle such that it collided with plaintiff's vehicle causing plaintiff to be seriously injured." Assume that the rest of the complaint is comprised only of a jurisdictional statement and a prayer for relief. Defendant acknowledges that the accident took place but does not believe she was driving negligently at the time of the accident. What action should the D take next?

Make a pre-answer motion to dismiss the complaint for failure to state a claim. The quoted language from the complaint simply conclusorily states that the D was negligently driving. This doesn't seem to comply with Iqbal. If the legal conc is removed all that is left is an allegation that D collided with P. There are no facts that allege what D was doing was negligent. Accordingly, there is a good chance the complaint will be dismissed for failure to state a claim. The best way to raise this defense is through a pre-answer motion

Plaintiff files suit against defendant alleging that a lawnmower manufactured by defendant was defectively designed and that plaintiff was injured as a result of the defective design. In its answer, defendant denies that the lawnmower is defectively designed. In addition, defendant raises an affirmative defense of contributory negligence. In its defense, defendant alleges: "39. Plaintiff's negligent actions contributed to Plaintiff's injuries. These negligent actions include but are not limited to failing to read the safety manual, failing to follow the safety guidelines, and failing to properly maintain the lawnmower." Plaintiff's lawyer talks to plaintiff, who says that he did read the safety manual, that he was operating the lawnmower safely, and that he did perform regular maintenance on the lawnmower. How should the P respond to the allegations about contributory negligence?

Make no response, bc the rules do not permit the P to make a response to an answer. See Rule 7(a)(7). The P cannot respond, and the lack of response is treated as a denial of the allegation in the affirmative defense. See Rule 8(b)(6).

What is mediation? What is arbitration? How are they different?

Mediation is the process of using a neutral third party (the mediator) to facilitate communication between the parties to help them settle a dispute. Mediation is usually non-binding (i.e., you are not required to settle even if the mediator indicates she thinks the terms offered by the other party are favorable). Arbitration involves submitting a dispute to a third party (the arbitrator) who evaluates the claims and decides on the outcome. Arbitrations are usually binding (although it is possible to have non-binding arbitration). This means that arbitration decisions have the force of law. The binding nature of most arbitration is the most important difference between mediation and arbitration.

A plaintiff brought a state law action for negligence against a doctor in federal district court under diversity jurisdiction. The paragraph in the plaintiff's complaint that contains a statement of the claim states that "the defendant doctor's negligent performance of the operation was the cause of plaintiff's injuries, including pain and suffering, medical expenses, and lost wages." The defendant has not yet filed an answer to the complaint. Which of the following motions would be most appropriate for the D to make in response to the complaint?

Motion to dismiss for failure to state a claim under which relief can be granted. Under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim. After Iqbal, the ct must ID and reject legal concs unsupported by factual allegations. This includes mere conclusory statements and assertions devoid of facts. In this case, the sole allegation in the P'd complaint was a mere conclusory statement that the dr was negligent. The P failed to include any factual allegations to support the legal conc that the D's negligent conduct caused the P damages. Thus, the complaint should be dismissed for failure to state a claim upon which relief can be granted. A motion to strike is appropriate if a pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material. None of these are present here. A motion for s/j is a motion that evaluates the sufficiency of the evidence supporting the allegations. Here, the problem is not that there is insufficient evidence to support a finding of negligence. Rather, the problem is that the conclusory allegation of negligence doesn't satisfy the pleading reqs after Iqbal. A motion for judgment on the pleadings under Rule 12(c) must be made after an answer is filed. Here, the D hasn't filed an answer to the complaint so a motion for judgment on the pleadings is premature.

Defendant attacked plaintiff and struck him repeatedly with his fists. After the attack, plaintiff was taken to an emergency room. There, he was treated by a doctor. After being discharged from the emergency room, plaintiff filed suit against defendant alleging a battery. Plaintiff plans to call the emergency room doctor as a witness at trial to testify about the doctor's treatment of his physical injuries. What should P do?

Name the dr in his initial disclosures as a witness who may be used to support his claim. Also, ID the dr as an expert witness and state that the dr will give opinions about the extent of P's physical injuries that resulted from the wreck and will based these opinions on her review of P's medical records and her care and treatment of P. The dr must be named in the initial disclosure bc the dr has info that P intends to use to support his claim. Bc the dr will be providing expert testimony she will also need to be disclosed under Rule 26(a)(2)(A). the dr will not need to provide a report under Rule 26(a)(2)(B) bc she isn't one who was "retained or specially employed to provide expert testimony." Rather, she is simply the dr who treated P's initial injuries. As such, she is only subj to the reqs of Rule 26(a)(2)(C). Its not enough to simply name the dr in P's initial disclosures. The dr is also an expert bc the dr has specialized knowledge that is beyond the knowledge of the average juror. As a result, the P must also disclose that P plans to call the dr as an expert. P believes that the dr will provide evidence that support's the P's claim. So P must disclose the dr in P's initial disclosures. Deposing a friendly witness (as the dr appears to be) is usually a bad idea. You can usually obtain the info needed from a friendly witness without deposing them and its better to save your deps for adverse witnesses.

A plaintiff filed a complaint against a defendant in federal district court, alleging that the defendant negligently struck plaintiff with defendant's car. The defendant, seven days after being served with the summons and complaint, filed an answer to the complaint specifically denying each of the plaintiff's allegations. Ten days later, the defendant filed a motion to dismiss for lack of personal jurisdiction. The court granted the defendant's motion and dismissed the plaintiff's claim. Was the ct's ruling correct?

No, bc the D failed to raise the def of lack of personal jx in the answer. The defense of lack of personal jx must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defense will be waived. Here, the D's first response to the claim was made in his answer. Bc he didn't raise the defense in his answer, it could not be raised in a post-answer motion to dismiss. Thus, the cts ruling wasn't proper. A motion to dismiss for lack of personal jx cannot be made at any time. It must be raised in a pre-answer motion or in the answer. The fact that the motion to dismiss was made w/in 21 days of service of process is not relevant bc the D failed to raise the defense in either a pre-answer motion or the answer. The defense of lack of personal jx can be raised for the first time in the D's answer, if no pre-answer motion is made.

Plaintiff sues defendant for breach of a contract for the sale of a home. Plaintiff's offer to buy the home was accepted by the defendant, but then the defendant refused to transfer the home to the plaintiff. Plaintiff seeks specific performance of the sale contract. One week after the defendant filed its answer to the complaint, the plaintiff served on the defendant and filed with the court a written demand for a jury trial. Is the P entitled to a jury trial?

No, bc the P isnt entitled to a jury trial under the 7th Amend. A demand for specific performance of a K isnt entitled to a jury trial under the 7th Amend. in the 18th century, demands for specific performance of a K could only be brought in the cts of equity. Thus, there is no right to a jury trial of this issue today.

A plaintiff sues a defendant in federal court. The defendant files a timely pre-answer motion to dismiss for improper service of process, but the court denies the motion. Defendant then moves to dismiss the case for lack of personal jurisdiction. Is D's personal jx motion permitted?

No, bc the def was waived by failing to include it in the first motion to dismiss. D's motion to dismiss for lack of personal jx is brought under Rule 12(b)(2), making it subject to waiver if an earlier Rule 12 motion is brough that doesn't include this defense. See Rule 12(g), 12(h). As a result, the personal jx defense was waived by the failure to include it in the earlier pre-answer motion. Personal jx claims can be lost if not raised at the right time. Only a defense of lack of subj matter jx can be raised at any time prior to the final judgment. While its possible to raise lack of personal jx for the first time in the answer if its not already been waived, in this case, the defense has been waived bc the D filed a pre-answer motion but failed to raise lack of personal jx as a def.

Plaintiff sues a bank and a real estate agent for breach of contract. Plaintiff seeks damages arising from a real estate transaction. Plaintiff claims that the bank and the real estate agent knew about problems with the property but failed to disclose them. After discovery, the real estate agent moved for summary judgment arguing that plaintiff had presented no evidence that the agent knew about the flaws in the property or that the real estate agent was liable for those flaws. The court agreed and dismissed plaintiff's claim against the real estate agent. Can P immediately appeal the dismissal of the claim against the real estate agent?

No, bc the dismissal isnt a final judgment. It doesnt end the litigation on the merits and leave nothing for the ct to do but execute the judgment. Even after the claim against the real estate agent is dismissed, the litigation will cont bc the P still has a claim against the bank. -While Rule 54(b) could permit an appeal, before Rule 54(b) could apply, the judge would have to make a special finding that entering final judgment as to the real estate agent was necessary and that there was no just reason for delay. No such findings have been made, so this is still not a final judgment. -judge's dont generally need to certify appeals. Certification is only a favor with certain interlocutory appeals, none of which are applicable here. -dismissal isnt a final judgment. Final judgments are defined by whether the litigation is ended, not by a particular party's involvement in the litigation is ended.

A husband and wife are both injured when a bus they are traveling on is involved in an accident. The husband sues the bus company for negligence. The case is resolved through a bench trial. The judge finds for the bus company and makes an express finding that the bus driver was not negligent in his driving. The wife then sues the bus company alleging the bus was being driven negligently at the time of the accident. The bus company makes a motion requesting a ruling that the wife is not permitted to contest the finding from the earlier litigation that the bus driver was not negligent. Should the ct grant the motion?

No, bc these arent the correct parties for issue preclusion. The bus co would like to assert issue preclusion against the wife, but the wife wasnt a party to the earlier litigation. Therefore, issue preclusion is not appropriate. -even though this exact issue was litigated in the earlier action, it was litigated btw different parties. The party the bus co would like to assert issue preclusion against - the wife - was not a party to the earlier litigation. Therefore, issue preclusion is not appropriate. -this is not offensive issue preclusion. This would be defensive issue preclusion bc the D is seeking to assert it against the P. -this is not a case of claim preclusion either. The bus co is seeking issue preclusion. In any event, the wife's claim wouldnt be barred by claim preclusion either bc the wife wasn't a party to the earlier litigation not in privity with any of the parties to the earlier litigation.

Plaintiff serves defendant with an interrogatory asking for the basis for one of defendant's affirmative defenses. Defendant objects instead of answering. Plaintiff makes a motion to compel an answer to the interrogatory and to strike the affirmative defense as a sanction for discovery abuse. The court agrees that defendant's objection was not substantially justified and that it should have answered the interrogatory. Will the court sanction defendant by striking the affirmative defense?

No, because the appropriate remedy is to order the defendant to answer the interrogatory and award attorneys' fees to the plaintiff. While striking an affirmative defense is permitted under Rule 37(b)(2) as a remedy for the failure to comply with a court order directing a party to permit discovery, it is not permitted as a response to an initial motion to compel. The proper remedy for a party that wins a motion to compel is for an order directing the disclosure of the requested discovery and an award of reasonable attorneys' fees. See Rule 37(a)(5). Only if the opposing party refuses to comply with the order to disclose the requested discovery could the moving party make another motion and seek a sanction under Rule 37(b)(2).

Must you renew your motion for JMOL after entry of the judgment? What is the consequence for failing to do so?

No, technically the decision whether to renew a motion for JMOL is optional. Rule 50(b) says that a party "may" renew a motion for judgment as a matter of law. But, as a practical matter, the vast majority of parties do renew their motions for JMOL after entry of the judgment. This is because the Supreme Court held in Unitherm v. Swift-Eckrich, that a party that did not "renew" its motion for JMOL could not appeal the failure to grant its pre-judgment motion for JMOL. In other words, renewal of the motion is necessary if you wish to appeal the failure to grant a pre-judgment motion for JMOL.

A man sued his employer, claiming that he had been defamed by his supervisor. The man alleged that the supervisor had informed the vice president of the defendant corporation that the man was an unproductive salesman. The man alleged that this statement was made within the scope of the supervisor's employment with the corporation. The corporation filed an answer that admitted the supervisor's statement but denied that it false and also denied that it was made within the scope of the supervisor's employment. The man then moved for summary judgment on his defamation claim. In support, he attached his personal affidavit, describing facts that demonstrated that he had high sales numbers compared to the other salesman in his department. The corporation did not respond to the man's summary judgment motion. Assume that to win at trial, the man would have to establish that the statement was made, that it was false, and that making it was within the scope of the supervisor's employment. Should the man's motion for s/j be granted?

No, the man's motion cannot be granted bc material issues of fact remain. By failing to respond to the man's s/j motion, the corp essentially conceded that there was no genuine issue of material facts as to any of the facts estab'd by the man in his affidavit. Thus, its not estab'd that the statement to the VP was false. But, the man would at most be entitled to a partial s/j. His affidavit doesnt address the issue of whether the supervisor's statement was w/in the scope of his employment. Thus, that issue hasnt been estab'd in the man's favor and there is still a genuine issue of material fact as to whether the statement was w/in the scope of the supervisor's employment. Since that is a req of a claim of defamation against the employer, the ct cannot grant s/j in the man's favor. -an affidavit necessary to support a s/j motion may personally be made by the moving party.

Can an issue that was decided against a defendant by a jury in a civil lawsuit be used to preclude that defendant from re-litigating that same issue in a subsequent criminal trial arising out of the same set of facts? Why or why not?

No. The decision from the civil lawsuit cannot be imported into the criminal lawsuit because the criminal lawsuit is subject to a higher standard of proof. The general standard or proof in civil cases is "a preponderance of the evidence." The general standard of proof in a criminal case is "beyond a reasonable doubt." The latter is a higher burden than is used in civil cases. Consequently, even though a civil jury decided some issue by a preponderance of the evidence standard, we could not be certain that the civil jury would have found that same issue if it were considered under a beyond a reasonable doubt standard. Since we can't be sure the civil jury would have made the finding at the same standard of proof as necessary in the criminal trial, we cannot import the civil jury finding into the criminal trial.

A patient sues her doctor for malpractice. Patient alleges that the doctor negligently performed an operation. Nearly a year after filing the action, the patient subpoenas documents from the hospital where the operation took place. In particular, the patient seeks any emails exchanged between senior hospital managers about whether to revoke the doctor's right to perform operations at the hospital as a result of the operation conducted on the plaintiff. The doctor is not an employee of the hospital. The hospital consults with its Information Technology (IT) staff about how to respond to the subpoena. The hospital's IT staff informs the hospital that the emails, if they still exist, only exist on backup tapes stored at an off-site facility. The tapes are expensive to access. In addition, searching them for responsive emails will require devoting an employee to the task for several weeks. How should the hospital respond to plaintiff's request?

Object to the production of the requested documents because locating and producing the emails imposes an undue burden on the hospital. The patient can serve document requests on a third party under Rule 45, but such requests cannot impose an undue burden on the third party. Here, it appears that the document request would impose an undue burden on the hospital, so an objection on this basis is appropriate. While hospital is a non-party, Rule 45 does permit document requests to non-parties using subpoenas.

Plaintiff claims that as a result of a car accident caused by defendant, she now suffers from severe depression. Defendant has sent plaintiff a request for production of "all records from any mental health professional who has treated Plaintiff from 2012 up to and including the present day." Plaintiff believes that records from before the wreck, which contain very personal information, are not relevant to her claimed injuries. She also believes they are covered by the physician/patient privilege. She concedes, however, that some documents created after the wreck are relevant and discoverable. How should the P respond to the doc req?

Objection insofar as records from before the wreck that is the subj of this suit are irrelevant and production of them would violate the physician-patient privilege. Relevant records relating to the injuries claimed in this lawsuit are attached. Some of the info sought (re events after the car accident) is relevant and apparently not objectionable, so the P should product those docs. But P believes the records from before the wreck and irrelevant and privileged. So, the proper response is to object to the production of docs from before the wreck while simultaneously agreeing to produce relevant docs from after the wreck. If P is going to withhold docs, then she needs to object and explain her objection. Simply ignoring the req is about the worst possible thing P can do. It will waive any objection she might have had to producing the docs and almost certainly will result in D filing a motion to compel the docs that D will win. At that point, P will have to produce the docs and probably pay D's attorneys' fees incurred during the motion to compel.

What are offensive and defensive issue preclusion? Which one is favored? Which one is disfavored? Is there a way to overcome the presumption against the disfavored one?

Offensive issue preclusion occurs when the plaintiff seeks to assert issue preclusion against the defendant. Defensive issue preclusion occurs when the defendant seeks to assert issue preclusion against the plaintiff. Defensive issue preclusion is favored, and offensive issue preclusion is disfavored. But offensive issue preclusion is not forbidden and the presumption against the availability of offensive issue preclusion can be overcome by considering the four factors identified in Parklane Hosiery v. Shore. If those four factors favor it, then offensive issue preclusion is permitted.

What is an offer of judgment? What is necessary for a valid offer of judgment? Under what circumstances does an offer of judgment have any effect?

Offers of judgment are essentially offers to settle a case on particular terms made by a defending party. To be valid an offer of judgment must meet the requirements listed in Rule 68(a). A valid offer of judgment must: 1) be made by a party who is defending a claim; 2) be made at least 14 days before trial; 3) be made in writing and served upon the opposing party; and 4) must specify the terms under which judgment will be entered against the offering party. An offer of judgment only has an effect if the offering party loses the claim, but the receiving party wins less than the amount of the offer of judgment. See Rule 68(d). If the receiving party wins more than the amount in the offer of judgment, then it has no effect. If the offering party wins the claim then the offering party is the prevailing party and is entitled to all of its costs (see Rule 54(d)), so again the offer of judgment would have no effect.

A woman alleged that she was fired from her job as the manager of a restaurant after the owner of the restaurant found out she was Polish. The woman filed an employment discrimination claim in federal district court, arguing that the restaurant had violated federal employment law prohibiting firing someone because of her national origin. The jury was asked to return a general verdict with, in addition, answers to specific questions. The jury returned a verdict in favor of the woman. However, the jury indicated in the answer to a specific question on the verdict form that the restaurant had terminated the woman's employment due to poor job performance, rather than on account of her national origin. The restaurant objects to the verdict form and makes a motion for judgment as a matter of law in its favor or in the alternative for a new trial. Which of the following actions should the ct take?

Order a new trial. The problem is the inconsistency btw the jury's verdict and the answers to the specific Qs posed to the jury. The jury found for the P on her claim of national origin discrimination but also answered a specific Q by saying that the P was not discriminated against based on her national origin. If that were true, then the jury shouldnt have rendered a verdict in favor of the P. Given the inconsistency in the verdict form, its probably not appropriate for the judge to simply enter the verdict in P's favor. It would definitely be inappropriate for the judge to instruct the foreperson to alter the verdict form. Similarly, its not appropriate for the judge to grant JMOL in D's favor. For one thing, the motion for JMOL wasnt made prior to the case being submitted to the jury. Thus, its untimely and shouldnt be granted. More importantly, the remedy for an inconsistent verdict is usually the granting of a new trial, not JMOL for one of the parties. Thus, the appripriate action is for the judge to grant the motion for a new trial.

Plaintiff is suing defendant for negligently causing a car accident that allegedly injured plaintiff. Plaintiff is alleging that he suffered serious injuries to his back that have resulted in permanent disability. Plaintiff was treated in the emergency room by a physician. Defendant is concerned that plaintiff is exaggerating his physical injuries and wants reliable information about plaintiff's current medical condition. What should D do?

Req a Rule 35 Physical Exam of the P. Rule 35 is the correct way to obtain info about P's physical condition. Also, P's physical condition has been put in issue bc P alleges that his injuries have resulted in permanent disability. Bc there is no evidence that P's mental state is at issue, a mental exam would not be appropriate. While non-parties can be deposed, they cannot be deposed simply by sending them a notice of dep. That would only work for a party. To depose non-parties, they must be subpoenaed under Rule 45.

What is the purpose of Rule 1 of the FRCP?

Rule 1 of the FRCP tells the parties and the courts how to interpret the rules. It says that they should be "construed, administered, and employed . . . to secure the just, speedy, and inexpensive determination of every action and proceeding." These three requirements appear to be in tension, however, as it may not always be possible to achieve all three simultaneously. The rules do not tell courts how to balance these requirements when they are in conflict.

Rule 15(a)(2) says that leave to amend will be granted "when justice so requires." What does this mean?

Rule 15(a)(2) does not contain a definition of this standard, so we must look to caselaw for a definition. According to Beeck v. Aquaslide, leave to amend will be granted unless the party opposing the amendment can show that it would not be appropriate. To defeat an amendment, the party opposing the amendment must show: 1) the party seeking the amendment acted in bad faith; 2) the party seeking the amendment unduly delayed in requesting the amendment; or 3) the amendment would unfairly prejudice the opposing party.

Plaintiff sues a truck driver alleging that he caused a traffic accident that seriously injured plaintiff. The driver was working for a trucking company at the time of the accident and was driving a vehicle owned by the trucking company. Plaintiff amends her complaint and adds the trucking company as a co-defendant on the theory that the trucking company is liable for its employee's alleged negligence. How should P conduct discovery on this issue?

Send a req for production to the trucking co asking for records related to the driver's driving history bc his driving records are relevant as they may contain evidence that he has a prior history of causing accidents. Thus, the P may req those docs from the trucking co. A subpoena is not needed to obtain the docs. Subpoenas are only needed to obtain docs from non-parties. A mental examination would not be granted unless the driver's mental state is in controversy. Nothing in the facts suggest that his mental state is at issue yet, so no mental examination would be permitted. Later, if discovery suggested that his mental state was an issue, this issue could be revisited. Discovery from third parties is limited to reqs for production and depositions. You cannot send interrogatories to non-parties.

After an 80-year-old woman was severely injured during an arrest - the officers mistakenly thought her home was that of a drug dealer - the county sheriff interviewed the officers involved about the incident and videotaped that interview. One year later, the woman filed suit against the sheriff and the county. By this time, however, one of the officers had died. During the sheriff's deposition, the plaintiff discovered the sheriff had conducted a videotaped interview with each officer two days after the incident and possessed the only copies of those interviews. What should the plaintiff do?

Send a request for production of the videotaped interviews. Plaintiff should seek discovery of both videotapes as they may contain discoverable information about the events that led to her injuries, including how the officers came to the mistaken belief that her home was that of a drug dealer. Plaintiff should seek the discovery despite the possibility that defendant may make a claim of trial preparation materials. It is defendant's obligation to raise that objection in response to the request not plaintiff's obligation to refrain from requesting potentially relevant evidence because it might be protected. Protective Orders are to be sought by the party "from whom discovery is sought." In other words, defendant might be able to seek a protective order to prevent the disclosure of the tapes, but plaintiff would not. Moreover, defendant is already under a general obligation to preserve information relevant to the pending litigation and the videotapes certainly qualify. So, the defendant is already obliged to protect the videotapes from spoliation.

To what extent do the Federal Rules of Civil Procedure regulate settlements?

Settlements are contracts and their validity is governed largely by contract law. There are very few provisions within the FRCP that regulate how the parties can settle a case, although the rules do permit judges to encourage settlement. For example, Rule 16(a)(5) permits a judge to order a pretrial conference to "facilitate settlement." Generally, the courts will not assess the fairness of settlements with one notable exception. A court must ensure that settlements of class actions are "fair, reasonable, and adequate." See Rule 23(e).

Explain why the Supreme Court overturned the trial court's grant of summary judgment in Tolan v. Cotton.

Summary judgment is only appropriate when there is no genuine dispute about the material facts. In Tolan v. Cotton there was a genuine dispute about whether the police officer's use of force was reasonable. The plaintiff's version of events differed in crucial ways from the police officer's version of events. In particular, the plaintiff said that he was not on his feet or moving toward the officer when he was shot. Rather, plaintiff says that he was kneeling on the ground when he was shot. Thus, there was a genuine dispute about whether the officer could have feared for his life, which is a necessary predicate to using lethal force. Consequently, summary judgment was inappropriate.

Plaintiff sues a corporation for faulty installation of a chandelier which fell on her causing serious injuries. At trial, plaintiff's only evidence that the corporation improperly installed the chandelier is testimony by an engineering expert. The expert testifies that he inspected the site after the chandelier fell and in his opinion, the reason it fell was faulty installation. Plaintiff wins a verdict of two million dollars. After the verdict, the corporation makes a motion for judgment as a matter of law arguing that the expert's testimony was not credible because he has a previous conviction for perjury. The trial court grants the motion and enters a judgment as a matter of law in favor of defendant corporation. Which of the following is most accurate?

The TC acted improperly bc the D didnt follow the reqs of Rule 50. The corp violated Rule 50 in the timing of its motion for JMOL. a motion for JMOL must be made "b4 the case is submitted to the jury." See Rule 50(a)(2). The corp first made its motion for JMOL after the verdict was returned. The corp would only be permitted to renew an already existing motion for JMOL at this point. See Rule 50(b). Accordingly, the TC should not have granted the motion for JMOL.

What is the appropriate standard of review on appeal from a trial court's factual finding? Please explain how the appeals court applies this standard.

The appropriate standard of review from a factual finding is the "clearly erroneous" standard. See Rule 52(a). A factual finding is clearly erroneous if it is unsupported by evidence. But, where there are two permissible views of the evidence, the factfinder's choice between those two interpretations is not clearly erroneous. The appellate court is not permitted to overturn a factual finding simply because it would have resolved the evidentiary dispute differently if it had been the factfinder.

An attorney is a senior partner at a large law firm. He is involved in a major federal tax evasion case in a U.S. District Court. The attorney has noticed and taken many depositions in the case but is now confronted with various allegations of misconduct arising out of those depositions. Which of the following could result in sanctions against the attorney and his client?

The attorney failed to attend a deposition that he had scheduled for another party because that other party refused to produce answers to interrogatories served on that party. If the party who gave notice of the taking of a deposition fails to attend, the court may order the party who gave the notice to pay such other party the reasonable expenses incurred by him, including reasonable attorney's fees [Fed. R. Civ. P. 30(g)(1)]. It is not a sufficient excuse that other party had failed in some way in complying with their discovery obligations. If the other party failed to produce interrogatory responses, the appropriate response would be to move to compel such responses. An attorney is entitled to discover relevant information even if that information is embarrassing. If the deponent believes that the information is too embarrassing and wishes protection, the obligation is upon the deponent to seek a motion for a protective order. But even if the deponent were successful, he or she would still have to answer the questions and provide the embarrassing information, even if the protective order limited what use could be made of that information. It is not the attorney's obligation to find someone to represent other parties. It is their obligation to do so. And it is not unlawful for a party to proceed pro se (although it is probably not a good idea). Pro se litigants may be deposed. Attorneys are permitted to object to questions during depositions, although the questions must be answered subject to the objections. FRCP 30(c)(2). There is no indication that the objections were argumentative or otherwise inappropriate, so the attorney has done nothing wrong.

A man sued a banker for misrepresentation. The man alleged that the banker convinced him at a meeting at a bar to buy a property that the banker knew had toxic waste buried on it without disclosing that fact to the man. The banker claimed that he never discussed the property with the man and that they talked about the man buying the banker's car. The banker intends to call a bartender as a witness to testify that she overheard their conversation on the day in question. The man believes the bartender has poor hearing and that she could not have heard their conversation in the loud bar. In order to assess the bartender's hearing, the man sent the bartender a Notice to Appear for Medical Examination before a doctor selected by the man. Which of the following is true?

The bartender need not comply with the Notice to Appear because she is not a party to the action and the man does not have authority to order her to submit to a medical examination. Federal Rule of Civil Procedure 35 allows the Court to order a physical or mental examination of a party or the production for such examination of any person under the custody or legal control of a party. Since the bartender is not a party to the action and there is no reason to believe that she is under the custody or control of a party, she is not required to comply with the man's Notice to Appear for Medical Examination.

What three main components is a Complaint legally required to have? What other component is not legally required but usually included in Complaints? Why is it included?

The composition of the Complaint is governed by Rule 8(a). Every complaint must include: 1) a statement of the grounds for the court's jurisdiction; 2) a statement of the claim; and 3) a demand for relief. After Ashcroft v. Iqbal, the statement of the claim must contain sufficient factual allegations to make out a claim that is "plausible." Complaints are not required to contain a statement of facts, but nearly every complaint does. This is because, in addition to meeting the legal requirements of Rule 8(a), Complaints are also an opportunity to tell your client's story. This is usually done through the statement of facts. This section is not legally required but is an important opportunity to begin to persuade the audience (both the court and the other side) that you have a compelling case.

Plaintiff files a complaint against defendant alleging that defendant negligently ran a red light and struck plaintiff with her car causing serious injuries to plaintiff. After being served with the complaint and before answering, defendant moves to dismiss the claim under Rule 12(b)(6). In support of the motion, defendant produces pictures taken by the red light camera at that intersection that appear to show that it was the plaintiff who ran the red light. Which of the following statements are true?

The ct cannot rule on this req under Rule 12(b)(6) bc the inclusion of evidence outside the pleadings means the motion cannot be decided under Rule 12(b)(6). It has essentially been converted into a s/j motion under Rule 56 bc we have moved from examining the sufficiency of te pleadings to examining the sufficiency of the evidence that supports those pleadings. See Rule 12(d). A motion to dismiss under Rule 12(b)(6) can only be granted if the pleadings demonstrate that the P has not alleged facts which (if later proved with evidence) would constitute a valid CoA. Rule 12(b)(6) motions are not designed to evaluate the sufficiency of the evidence that supports those allegations, only the sufficiency of the allegations themselves.

How did the defendant in Zubulake v UBS Warburg violate its obligations with respect to spoliation?

The defendant violated its obligations in three ways. First, the duty to preserve documents arises when the party can reasonably anticipate that litigation will occur. In Zubulake, that occurred in April 2001 when the defendant concluded that plaintiff would likely sue, not when the complaint was filed. Thus, by waiting until August to begin to preserve documents it violated its duty. Second, the party has an obligation to identify the employees most likely to have discoverable information (the "key players") and ensure that they retain that information. UBS Warburg failed in this because it did not identify all of the employees most likely to have discoverable information. Consequently, some key players did not preserve documents. Finally, even for those key players it did identify, UBS Warburg did not follow up with those people to ensure they were complying with the litigation hold. As a result, some discoverable documents were destroyed.

Plaintiff sues defendant alleging a products liability claim. Defendant receives the complaint. First, defendant files a pre-answer motion alleging that the complaint fails to state a claim upon which relief may be granted. When the defendant's pre-answer motion is denied, defendant immediately files another motion arguing that it is not subject to personal jurisdiction in the forum state. Without waiting for a decision on the second motion, the defendant files an answer and alleges in the answer that the complaint fails to join a required party. Which of the following statements are true?

The defense of lack of personal jx has been waived but the argument about the failure to join a req'd party has not been waived. A D is only allowed to make one pre-answer motion. See Rule 12(g)(2). Moreover, the failure to raise the defense of lack of personal kc in the first pre-answer motion means that the defense is waived. See Rule 12(h)(1)(A). The defense of failure to join a req'd party, on the other hand, is not waived by the failure to raise it in the first pre-answer motion and can be made for the first time in the answer. See Rule 12(h)(2)(A). Accordingly, the lack of personal jx defense has been waived but the failure to join a req'd party defense has not been waived.

Describe the two main holdings of Philips Petroleum v. Shutts.

The first holding in Philips Petroleum is that state courts can hear nationwide class actions even though many of the class members would not have sufficient contact with the forum state to be subject to personal jurisdiction there. But, the court said that when the class action was one for money damages, the due process concerns required that the class members receive: 1) notice and an opportunity to participate; 2) the best notice practicable; 3) a description of the lawsuit and their rights; 4) an opportunity to opt-out; and 5) adequate representation at all times by the name representative. The second holding is that a court deciding a class action cannot simply use the law of the jurisdiction where the court sits to decide all the claims. Instead, each class member is entitled to their own choice of law analysis. Usually, this will mean that each class member will be entitled to the law of the forum that has the strongest connection to their claim.

What are the key differences between temporary restraining orders (TROs) and preliminary injunctions?

The first key difference between TROs and preliminary injunctions is the length of time that they last. A preliminary injunction typically lasts until a final judgment, at which time it is either dissolved or turned into a permanent injunction. A TRO only lasts until a hearing can be scheduled, with an upper limit of 14 days. This limitation is linked to the second key difference. A TRO can be granted without notice to the adverse party, whereas a preliminary injunction cannot. A TRO is only designed to preserve the status quo until notice can be given to the adverse party and a proper hearing can be scheduled. Thus, its limited duration.

If you wish the judge to give a particular jury instruction (and you wish to be able to appeal the judge's decision if it does not go your way), what must you do?

The first step to getting the judge to give a particular jury instruction is to formally request the jury instructions you want. But, if the judge declines to give your requested jury instructions, then you must also object on the record to the failure to give the requested jury instructions. If you do not object on the record to the failure to give the requested instruction, you will be deemed to have waived your request, which means that you will not be able to appeal on the grounds that the failure to give the requested instruction was an error.

What are the three levels of federal courts called? What role does each serve?

The lowest level of courts in the federal hierarchy are the federal district courts. These serve as trial courts. The circuit courts serve as intermediate appellate courts. Every party that suffers an adverse judgment has a right of appeal to the appropriate circuit court. The Supreme Court serves as the highest court in the US and is the final arbiter of the meaning of the US constitution and federal law.

A man sues his neighbor for trespass to land. In his Complaint, the man alleges a claim for trespass to land, including the allegation that the neighbor intentionally entered land owned by the man. The neighbor denies that the man owns the land in his Answer but admits that he entered the land. In addition, the neighbor states the affirmative defense of "privilege," claiming that the man gave the neighbor permission to enter onto the land. The man moves for judgment on the pleadings, and the neighbor also moves for judgment on the pleadings. How should the ct resolve the motions for judgment on the pleadings?

The man's motion will be denied, as will the neighbor's motion, as long as the man has asserted all the eles of a trespass to land claim. As long as the man's complaint states all the eles of a claim for trespass, then the neighbor cannot win a judgment on the pleadings, even though he denies key allegations of the complaint and has what he claims is a valid defense. Similarly, since the neighbor has asserted a defense to the claim as well as denied that the man owned the property, the man isn't entitled to judgment on the pleadings either. As soon as either party "introduces evidence," the motion is no longer a Rule 12 motion, and therefore, the introduction of evidence never makes the difference btw granting or denying a Rule 12 motion. The evidence of permission is better suited to a Rule 56 s/j motion. Under Rule 7, the man isn't req'd to "deny" the neighbor's "allegation" made in his answer. This can only be done through the filing of a Reply, and the man would need the ct's permission to file one of those. Bc one is not req'd to Reply to an Answer, the failure to Reply cannot be the grounds for granting or denying a Rule 12 motion. The list of defs under Rule 8(c) is not exhaustive

Explain why the parents' affidavits stating that their son did not use drugs did not create a genuine issue of material fact in Bias v. Advantage International.

The parents' affidavit did not create a genuine issue of material fact because it did not directly contradict the evidence provided by Bias' teammates about his drug use. The teammates provided evidence that Bias used drugs at certain parties on the weekends. The parents' affidavit could not directly contradict that evidence because the parents were not present at the parties where Bias used drugs. At most, the parents' affidavit provides evidence that Bias did not use drugs when with his parents, but that does not create a genuine issue of material fact regarding his drug use when his parents were not present.

If a party found out six months after a judgment was entered against it that the opposing party deliberately withheld a crucial and damning piece of evidence that had been requested during discovery, could that party appeal the judgment? If not, what other options might be available to the party?

The party could not appeal the judgment on the grounds that the opposing party withheld crucial evidence because the time period for filing a notice of appeal has passed. The notice of appeal must be filed within 30 days or the appeal is waived. Since six months has passed, no appeal from the judgment is possible. The party may have another option, however. Rule 60 permits a court to "re-open" an earlier judgment and relieve a party of the legal obligations of that judgment. Specifically, Rules 60(b)(2) and 60(b)(3) permit a court to re-open a judgment when there is newly discovered evidence or when there is evidence of fraud, misrepresentation or misconduct by an opposing party. Both of those provisions appear to apply here. There is a one-year limitation on reopening a judgment under Rule 60(b) for these reasons, but only six months has passed in this case. Consequently, the party should probably move to reopen the judgment.

What is the problem that often confronts a party wishing to use issue preclusion arising out of a jury verdict? What must that party do to overcome this problem?

The problem is that issue preclusion requires that the issue that the party wishes to preclude must have been actually litigated and determined in the earlier action, but it is not always possible to know why a jury reached a particular verdict because they are usually only asked for the outcome and do not generally explain their reasoning (unlike a bench trial judgment). Consequently, the party wishing to assert issue preclusion may have difficulty demonstrating that a particular issue was actually determined in their favor by the jury verdict. We know from Illinois Gulf Central Railroad v. Parks that a party wishing to use issue preclusion arising out of a jury verdict bears the burden of proving that there is no other possible explanation for the verdict other than that the issue they are claiming is precluded was, in fact, determined in their favor.

A man was hit by a teenager who screamed religious insults during the attack. The man sued the teenager for his injuries in federal district court alleging violation by the teenager of a federal hate crime law. The man filed his complaint and the teenager timely filed an answer. No other pleadings were entered in the case. Discovery commenced. One month after discovery began, the man filed a written demand for a trial by jury. What should the ct do?

The req should be denied bc the man waived his right to a jury trial. Rule 38(b) specifies that a written demand for a jury trial must be made within 14 days after the last pleading. In this case, the last pleading was the man's answer. Yet, the man didnt make the req for a jury trial until a month after the pleading stage had closed. Thus, the motion was not timely. Moreover, Rule 38(d) states that the right to a jury trial is waived unless "properly served and filed." The demand was not properly served and filed, so the right has been waived. -Even where the 7th Amend afford a right to a trial by jury, that right can be waived by failure to timely exercise it. -the 6th Amend applies to criminal cases and not civil cases, therefore it is inapplicable to this case.

A man files a complaint alleging breach of warranty by the defendant arising out of the man's purchase of a snowmobile. 20 days after being served with the complaint, the defendant served an answer. One week after service of the answer, the man filed an amended complaint that adds a new claim under products liability law. Which of the following is true?

The req will be granted bc this is an amendment "as a matter of course." A complaint is a pleading to which a responsive pleading is req'd (the answer). As such, the P may make an amendment as a matter of course within 21 days of service of the responsive pleading. See Rule 15(a)(1)(B). In this case, the amended complaint was served one week after the answer, so P is entitled to an amendment as a matter of course. A complaint is a pleading to which a responsive pleading is req'd. thus, the time limit in Rule 15(a)(1)(B) applies rather than the time limit in Rule 15(a)(1)(A). P is entitled to an amendment as a matter of course. As such, P doesn't req the ct's permission to amend the complaint. Nothing in the facts suggest that the new claim of PL fails to allege all the eles of the CoA. As such, a motion to dismiss under Rule 12(b)(6) appears to be inappropriate.

Under federal copyright law, joint owners of a copyright may reach whatever agreement they want regarding the division of the profits derived from the copyright. But if they never make any agreement, they are, by law, entitled to equal shares in the profits. A brother and sister are joint owners of the copyright in a book. For several years, the siblings equally share in the royalties, but they subsequently die in a car accident. The brother's son inherits his share of the royalties. The sister's daughter inherits her share of the royalties. The brother's son receives the royalties from the book publisher but distributes nothing to the sister's daughter. The sister's daughter sues the brother's son and demands half of the royalties. The son's lawyer asks the son to search for documents related to the dispute and the son discovers a signed agreement between the siblings that says the brother would receive 1/3 of the royalties and the sister would receive 2/3 of the royalties. Which of the following is true?

The son is not required to disclose the agreement as part of the initial disclosures but would be required to produce it if the daughter requests it under Rule 34. The document is not a required disclosure (see below), but it is relevant to the dispute about royalties. As such, it is discoverable and would have to be produced if the daughter makes a request for it under Rule 34. A party is only required to disclose documents that will support their claim. This document does not support the son's claim because it tends to show that the sister was entitled to 2/3s of the royalties. Even if the daughter never requests the document during discovery, destroying it would still be spoliation because the parties have a duty to preserve documents that are relevant to ongoing litigation. The son knows the document is relevant and thus must preserve it, even if the daughter does not know about the document and never asks for it. This document was created long before the present litigation was anticipated, so it cannot be covered by the trial preparation materials doctrine.

A politician sued a talk show host for defamation in federal district court in Illinois. The politician is a resident of Idaho, and the talk show host is a resident of Illinois. The politician in good faith alleged damages in the amount of $110,000. The talk show host filed an answer denying, among other things, that a defamatory statement was made by her. She did not raise improper service of process as a defense in her answer. Thereafter, she filed a Rule 12(b) motion alleging improper service of process. In the same motion, she moved for judgment on the pleadings pursuant to Rule 12(c). Which of the following is true?

The talk show host's Rule 12(b) motion cannot be heard bc a Rule 12(b) motion must be filed before any responsive pleading. Therefore, it was not appropriate for the talk show host to file a motion to dismiss alleging improper service of process after she had already filed her answer. She could have either filed a 12(b) motion with regard to service of process before filing her answer, or she could have raised the challenge to service of process in her answer. Rule 12(b) motions must be filed prior to any responsive pleading, but the Rule 12(c) motion for judgment on the pleadings is properly filed, bc the motion must be filed after the close of the pleadings. Thus, that part of the motion seeking a judgment on the pleadings should be decided not dismissed. The issue of improper service of process can be waived if not properly raised. The talk show host failed to properly raise the issue in either a pre-answer motion or in the answer. As a result, the defense of improper service of process has been waived under Rule 12(h)(1). The ct should not decide whether the service was proper. The talk show hosts Rule 12(b) motion cannot be heard bc a Rule 12(b) motion must be filed before any responsive pleading.

How is the Restatement approach to claim preclusion different from the traditional approach? Which is the majority approach in the United States today?

The traditional approach precludes a claim in the second lawsuit if it has substantially the same legal elements as the claim in the first lawsuit. The Restatement approach bars a claim in the second lawsuit if it arises out of the same "transaction" as a claim in the first lawsuit. Transaction is defined to include claims that arise out of the same set of facts. More claims are precluded under the Restatement approach. The Restatement approach is the majority approach in the United States.

A singer, a citizen of State A, sued a talent scout, a citizen of State B, in the U.S. District Court in State A for defamation, seeking $100,000 in damages. The talent scout answered by denying that he made a defamatory statement. The singer and the talent scout each stipulated that the jury would consist of eight persons. Trial was held, and seven jurors voted in favor of the singer. One juror voted for the talent scout. The jurors then deliberated on the amount of damages and decided to award the singer $25,000. The judge entered a verdict in favor of the singer for $25,000. The talent scout appealed the ruling. On which of the following grounds would the talent scout be most likely to prevail on appeal?

The verdict was defective bc it was based on a non-unanimous vote. Where a right to trial by jury exists, a jury verdict must be unanimous unless the parties have stipulated otherwise. Here the parties stipulated to an 8-person jury, but not to a non-unanimous jury. Thus, the non-unanimous verdict was an error. See Rule 48(b). -The parties stipulated to a jury of fewer than 12 persons; however, even in the absence of that stipulation, the verdict would not be defective bc there were fewer than 12 jurors. Stipulation is req'd only for juries of fewer than 6 members. See Rule 48(a). -the fact that a verdict fails to ultimately satisfy the "in excess of $75K" req of 28 USC §1332 is irrelevant bc the amount in contro req is measured only at the time the action is filed. And at the time it was filed, the claim met the amount in contro req. -its unclear whether D was subj to personal jx at the time the action was filed. While D is a citizen of State B, if D undertook an intentional act directed at State A, then D would be subj to personal jx in State A. On the other hand, if D didnt purposefully avail himself of State A then he might not be subj to personal jx there. But, there are no facts that suggest that D raised a def of lack of personal jx either by pre-answer motion or in the answer. And the def of lack of personal jx is waived if not raised in either a pre-answer motion or the answer (whichever comes 1st). As a result, any def of lack of personal jx has been waived. See Rules 12(h)(1), 12(b)(2).

What must the moving party show to be entitled to "judgment as a matter of law" during summary judgment?

To be entitled to summary judgment a party must show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Rule 56(a). To know when a party is entitled to judgment as a matter of law, you must know whether the moving party is seeking an offensive or defensive summary judgment. If the movant is making an offensive summary judgment motion (i.e., moving for SJ on a claim they will bear the burden of proof on at trial) then the movant must establish that there is no genuine issue of material fact as to all the elements of the claim. If, however, the movant is making a defensive summary judgment motion (i.e., moving for SJ on a claim the opposing party will bear the burden of proof on at trial), then the moving party need only demonstrate that the opposing party will fail on at least one of the elements of their claim to be entitled to summary judgment.

What is harmless error?

To succeed on an appeal, the appellant must demonstrate both an error by the trial court and that the appellant was substantially harmed by that error. If the error did not result in harm to the appellant (usually because the outcome is the correct one for some other reason) then the appellant cannot succeed on the appeal. This situation is called harmless error because the appellant may have demonstrated an error, but still loses if that error turns out to be harmless.

How does the commonality requirement of Rule 23(a) differ from the commonality requirement of Rule 23(b)(3)?

Under Rule 23(a)(2), all class actions must contain common questions of fact and law. After Wal-Mart v. Dukes, we now know that, in addition, at least one of the common questions must be such that its resolution is central to all of the class members' claims. Not all class actions have to meet the commonality requirement of Rule 23(b)(3). Class actions that are certified as Rule 23(b)(1) or 23(b)(2) do not have to meet the enhanced commonality requirement of Rule 23(b)(3). But classes that are certified as 23(b)(3) classes must demonstrate not just the existence of common questions of law or fact but that those common questions predominate over the individual questions. This is a higher standard than the commonality standard in Rule 23(a)(2).

What is an "adjudication on the merits" in federal court?

Under Rule 41(b) virtually all dismissals of a claim act as an adjudication on the merits of that claim. The exceptions are those specifically listed in Rule 41(b): 1) lack of jurisdiction; 2) improper venue; and 3) failure to join a required party. In addition, if a dismissal specifically says that it is "without prejudice" then it will not be treated as an adjudication on the merits. Every other dismissal counts as an adjudication on the merits. Thus, many dismissals that do not address the merits of the underlying claim (e.g., a dismissal for failure to comply with discovery orders) acts as an adjudication on the merits.

What is the court's role in the settlement of class action litigation?

Unlike in individual litigation, judges presiding over class litigation have an obligation to oversee the settlement process. Under Rule 23(e), a class action cannot be settled without the court's approval. In addition, the rule requires that the class members receive notice about the proposed settlement and an opportunity to object to it. Finally, the rule requires that the court hold a hearing to evaluate the settlement proposal. Only if the court is satisfied that it is "fair reasonable and adequate" can the court approve it.

What does it mean for an amendment to "relate back"? When is it most important for an amendment to relate back? According to Rule 15, when will an amendment relate back?

When an amendment "relates back" to the date of an earlier pleading, it is treated as if it had the same filing date as that earlier pleading. This is important when a pleading is amended to add a claim that would otherwise be barred by the statute of limitations. If the new claim "relates back" to the earlier claim, then it is treated as having the filing date of the earlier claim and will not be barred by the statute of limitations. A later claim relates back to the filing date of the earlier claim when it arises out of the same conduct, transaction or occurrence set out in the original claim. See Rule 15(c)(1)(B).

What information must an expert report contain?

When an expert witness is required by Rule 26(a)(2)(B) to prepare an expert report, that report must contain a complete statement of the opinions of the expert and the basis for those opinions. Essentially, this means that if you want an expert to testify about a matter at trial, her opinion on that matter must be included in the report. In addition, the report must also contain a copy of any exhibits the expert intends to use at trial, a copy of the expert's CV, a list of prior cases the expert has testified in, and information on the expert's compensation.

A man sues a manufacturing company in state court in Illinois when a nail gun he is using explodes and injures him. He proceeds on a theory of negligence in the design of the product. The case goes to trial and the jury returns a verdict in favor of the manufacturing company. Shortly thereafter, the man hires a new lawyer who advises him that he should sue the manufacturing company again claiming that the company is liable for his injuries on a theory of strict liability, which does not require proof of negligence. The man files a second suit against the manufacturing company in state court in Wisconsin. The manufacturing company moves to dismiss the action on the grounds it is barred by claim preclusion. Should the Wisconsin ct grant the manufacturing co's motion?

Yes, bc IL cts have adopted a transactional approach to claim preclusion. IL law would apply bc the later ct has to give the same effect to the judgment as the issuing ct would, and the issuing ct was in IL. Thus, the effect of the judgment is determined by IL law. Both claims arise out of the same transaction - the explosion of the nail gun - and the second claim is thus barred even though its legally distinct from the negligence claim in the first suit. -Under the Rest/transactional approach to claim preclusion, the second claim is barred bc it arises out of the same transaction as the first claim. -the effect of the earlier judgment is determined using the law of the state that issued it - in this case IL. Thus, whether WI cts have adopted the transactional approach is irrelevant.

The President of the United States, frustrated that a maj of the SC Justices have repeatedly struck down statutes she has signed into law as unconstitutional, tries to enlarge the US SC to 15 Justices so that she can appoint 6 new Justices. She believes that the Justices she appoints will not find so many laws unconstitutional. She eventually persuades Congress to pass a law that states: Henceforth, the SC shall have 15 Justices." The law is subsequently challenged in federal ct. Will the law withstand the challenge?

Yes, bc it is consistent with Art III, § 1 of the US Constitution. The Constitution reqs a SC but does not specify the number of SC Justices; that is left up to Congress to decide.

A man worked for a manufacturing company in Wisconsin. The company is a Delaware corporation with its principle place of business and headquarters located in Wisconsin. The man was injured when a machine at the company's manufacturing facility exploded. The man brought a cause of action against the company in U.S. District Court in Wisconsin. Service of process was sent to the residence of the company's President. Service was accepted by the President's 18-year-old son. The company filed two motions. The first motion, made one week after process was served, was made under Rule 12(b)(1) for lack of subject matter jurisdiction. The second motion filed a day later, was brought under Rule 12(b)(5) for insufficient service of process. The court ruled that the company had waived its right to complain about service of process. Was the ct's action proper?

Yes, bc the company waived its right to object to service of process. Rule 12(g) allows only one Rule 12 motion, though multiple Rule 12 issues may be raised in a single motion. Rule 12(b)(5) defenses are among those that Rule 12(h) deems waived if not joined in a motion pursuant to Rule 12(g). Here, the D had filed a prior Rule 12 motion and have failed to raise a 12(b)(5) issue. Therefore, the defense was waived and the ct acted properly in dismissing the second motion. While its true that a corporation can only be served via its agent for service of profess or officers of the corporation, this objection was waived by the failure to raise it in the first pre-answer motion. While the D usually has 21 days from the service of process to file a pre-answer motion, this particular defense was waived by the failure to raise it in the first pre-answer motion. Leaving the summons and complaint at the party's dwelling with a person of suitable age and competence who lived there would suffice if it were an individual being served. However, a corporation can only be served via its agent for service of process or an officer of the corporation.

Plaintiff sues defendant for injuries arising out of a car accident. The defendant's lawyer hires a private investigator to search for additional witnesses to the accident. The investigator identifies two new eyewitnesses to the accident and interviews them, producing written notes of the interviews. The defendant discloses the names and addresses of the witnesses to the plaintiff during its initial disclosures. Plaintiff then serves defendant with a document request seeking production of the investigators' written notes. Defendant objects. In the meantime, the plaintiff deposes the first witness, who says that she can't remember the accident at all. Can the plaintiff win a motion to compel production of the notes of the first witness' interview?

Yes, because the first witness no longer remembers the incident. The notes are trial preparation materials but the protection of trial preparation materials is not absolute. If the plaintiff can show a need for the information and that it cannot obtain the information by other means, then the documents must be disclosed (although they will usually be redacted to remove any mental impressions of the interviewer). In this case, the notes are the only existing recollections of an eyewitness to the accident. They are important to the plaintiff's understanding of what occurred and, given that the witness has been deposed and no longer remembers the incident, the notes are the only way for the plaintiff to understand what the first witness saw at the time of the accident. Accordingly, the trial preparation materials doctrine will not protect the notes. The notes are not protected by the attorney-client privilege. The notes were not produced by an attorney and the eyewitness was not a client of the attorney or the investigator. The notes are trial preparation materials, however. The trial preparation materials doctrine protects documents prepared in anticipation of litigation by a party or its representative. The investigator was working on behalf of the defendant at the time and the interviews were conducted as part of ongoing litigation, so the notes are protected.

A woman filed a lawsuit against a manufacturer, alleging that one of the manufacturer's products injured her. The manufacturer's insurance company requested copies of any reports the manufacturer routinely prepared containing information about consumer complaints, reported injuries, or remedial measures relating to the product the woman used. The manufacturer told the insurance company that it records all consumer complaints about its products in the ordinary course of its business and that the records are created as soon as the complaint is received. The manufacturer turned over several reports containing information about consumer complaints to the insurance company. The reports were also provided to a paralegal working for the lawyer hired to defend the manufacturer in the woman's lawsuit. The woman's attorney made a document request for any documents showing complaints related to the product that injured her. The manufacturer refused to produce the reports that were disclosed to the insurance company. The woman's attorney files a motion to compel the production of the reports. Will the motion to compel succeed?

Yes, because the reports were pre-existing, routinely prepared documents. Confidential communications between a client and lawyer to facilitate provision of professional legal services or advice are protected from disclosure by lawyer-client privilege. Pre-existing documents and documents prepared during the legal representation, but for other purposes, are not protected by the privilege even if they are subsequently provided to the lawyer. In this case, the reports were not communications between a client and lawyer, but were pre-existing reports routinely prepared by the manufacturer for other business purposes. The fact that the reports were ultimately provided to the manufacturer's lawyer in this litigation do not trigger the lawyer-client privilege. Therefore, these reports are routine business reports not protected by lawyer-client privilege, and this answer is correct. The trial preparations material doctrine applies to materials that were prepared in anticipation of litigation. These documents are not prepared in anticipation of litigation. The manufacturer records all complaints (not just complaints that result in litigation) about its products at the time they are made. Thus, these do not look like documents that were prepared specifically for use in litigation. If the documents did qualify as trial preparations material, the fact that they were made by the client or by a paralegal would not prevent them from being protected. The trial preparation materials doctrine extends to materials made by the party, its lawyer, or its representative, so long as they are prepared in anticipation of litigation.

Assume plaintiff's complaint contains the proper caption, jurisdictional allegations and a plea for specific relief. Paragraph 6 of the complaint states plaintiff's claim and reads: "On December 25th of last year at or near the intersection of Michigan Avenue and Jackson Drive in Chicago, Illinois, defendant negligently drove her car into plaintiff's car. As a result, plaintiff suffered a broken pelvis and other physical injuries, severe physical and mental pain and suffering, loss of earnings, and medical and hospital expenses in a sum yet to be determined but in excess of $80,000." Defendant moves to dismiss for failure to state a claim. Will the ct grant the motion to dismiss the complaint?

Yes, the motion should be granted bc the complaint doesn't comply with the reqs of Iqbal bc the portion of the complaint alleging the breach prong of negligence relies entirely on legal concs. In particular, it fails to allege what D did that was negligent (e.g., speeding, running a stop sign, driving under the influence, etc.). once the legal cons alleging that "D negligently drove her car into P's car" is disregarded, what is left (D's car collided with P's car) does not provide enough facts to support a finding that P's allegation of negligence is plausible bc P's allegations are consistent with both liability and non-liability.

What is the scope of discovery?

"Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the case." See Rule 26(b)(1). Thus, the default rule is that information is discoverable if it is relevant to a claim or defense and not protected by a privilege. This is limited, however, by the requirement of proportionality. The proportionality analysis requires the court to balance the needs of the party seeking discovery against the cost to the party against whom discovery is sought.

What components is a counterclaim required to have?

A counterclaim is a claim for relief. As such, it is subject to the requirements of Rule 8(a). That means that a counterclaim must include: 1) a statement of the grounds for the court's jurisdiction; 2) a statement of the claim; and 3) a demand for relief. In other words, a counterclaim must comply with the same requirements as a complaint.

What is the definition of a "final decision"? Why is it important to know when a final decision has been issued?

A final decision is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. See Catlin v. United States. It is important to know when a final decision has been issued because the final decision triggers the beginning of a 30 day window in which parties must file their notice of appeal and if a party misses the window to file their notice of appeal then they have waived their right of appeal.

What is the purpose of a final pre-trial order and when can it be amended?

A final pre-trial order is designed to narrow the claims, defenses and theories that will be presented at trial. It also provides notice to the parties about what will (and will not) be permitted during the trial. This helps prevent parties from being unfairly surprised by new theories or evidence at trial. A final pre-trial order can only be amended to prevent "manifest injustice." See Rule 16(e). At a minimum, the injustice must be the result of something that is not the moving party's fault. See Monfore v. Phillips (holding that the moving party had not shown manifest injustice when the other defendants' settlements were foreseeable, and the moving party could have sought discovery about the other defendants' alleged fault but chose not to do so).

What is a motion to compel? When should a party make a motion to compel? What is the typical remedy when a motion to compel is granted?

A motion to compel is a motion made under Rule 37 to force a party to make required disclosures or produce requested discovery. A party should make a motion to compel when another party is withholding discovery or disclosures and the first party believes that the FRCP require the second party to provide that information. If the moving party wins the motion then the court will order the other party to produce the requested information. In addition, whichever party wins the motion is entitled to recover their attorneys' fees incurred in making the motion unless the losing party's refusal to provide the information was substantially justified.

Can a party obtain documents from a third-party? How is this different from obtaining documents from a party?

A party can obtain documents from a third-party but must comply with Rule 45 to do so. Rule 45 permits a party to subpoena documents from a third-party. The main difference between a subpoena under Rule 45 and a document request to a party under Rule 34 relates to the scope of the permitted discovery. Under Rule 45, parties cannot impose an "undue burden or expense" on a third-party, no matter how important the requested discovery. Consequently, the scope of subpoenas for documents is considerably narrower than the scope of document requests under Rule 34.

What are initial disclosures? Explain why a party cannot rely solely on their opponent's initial disclosures and should engage in other forms of discovery.

A party is required to provide certain disclosures "without awaiting a discovery request" and before being able to engage in other forms of discovery. These are called initial disclosures. See Rule 26(a)(1). Initial disclosures provide the opposing party with information about potential witnesses, key documents, and damages. But a party is only required to disclose witnesses and documents that "support" their claims. They are not required to identify witnesses or documents they are aware of that do not support their claims. Such witnesses and documents are enormously important, but a party must use other forms of discovery (document requests, interrogatories, depositions, etc.) to find them.

What is a peremptory challenge? What are the problems with such challenges? What limitations have Congress and the Supreme Court imposed on them?

A peremptory challenge is a challenge to a potential juror. It allows a party to remove a potential juror from the jury pool without explaining why that potential juror was removed. The problem with peremptory challenges is that they have sometimes been used to remove potential jurors from the jury pool because of their race or gender. Congress has imposed a limitation on the number of peremptory challenges a party is permitted. Currently, parties are permitted three peremptory challenges. 28 USC 1870. In addition, the Supreme Court has held that using a peremptory challenge to strike a juror because of their race or gender is unconstitutional.

When is a party in federal court entitled to a jury trial?

According to Rule 38, a party is entitled to a jury trial when a jury trial is permitted by the Seventh Amendment and the party serves a written request for a jury trial within 14 days after the last pleading. The Seventh Amendment has been interpreted to "preserve" the right to a jury trial that existed in 1791 (the year the Bill of Rights was adopted). This means that a party is entitled to a jury trial in federal court if its claim is one that would have gone to a court of law in 1791. If a claim or requested remedy would have gone to a court of equity in 1791, then the party would not be entitled to a jury trial on that claim or remedy today.

Describe the process for evaluating the sufficiency of a complaint after Ashcroft v. Iqbal.

After Iqbal, complaints must contain sufficient factual allegations to be plausible. Generally, the plausibility analysis is a two-step process. First, the court identifies legal conclusions that are not supported by factual allegations. These unsupported legal conclusions are disregarded. Second, the court examines the remaining allegations to see whether they state a plausible claim. Plausibility is defined as more than a possibility that defendant is liable but less than a probability of liability. The Supreme Court also said that a claim is plausible when the factual content allows the court to draw a reasonable inference that the defendant is liable.

Plaintiff files an action against Defendant for injuries arising out of the failure of an allegedly defective product. Plaintiff alleges two claims, one sounding in negligence and the other in strict liability. Defendant's lawyer conducts some legal research and concludes that the law of the forum state will apply and that it does not recognize strict liability claims. Which of the following best described what should happen?

After verifying that the costs the woman seeks are permitted under 28 USC §1920, the ct should award the woman her costs. This was a valid offer of judgement made by the D more than 14 days before trial, served on the P, and offered to permit entry of a judgment on specified terms. If the judgment that the offeree obtained is not more favorable than the unaccepted offer, then the offeror is entitled to costs. The provisions of Rule 68 take precedence over the general provisions of Rule 54. Ultimately, this was a valid offer, the man did not receive a more favorable judgment, and therefore the man must pay the woman's costs incurred after the offer was made.

What are the potential advantages to making a pre-answer motion raising one of the defenses described in Rule 12(b)?

All the 12(b) defenses can also be raised in the answer but raising them via a pre-answer motion has certain advantages. First, if a party is successful with a pre-answer motion, the usual remedy will be dismissal of the complaint. Thus, the defendant need not answer at all. Second, even if the pre-answer motion is unsuccessful, the defendant need not answer until 14 days after the resolution of the motion. In practice, motions can take a while to resolve, so the defendant will probably get additional time to research and write the answer.

What makes a witness an expert? Which testifying experts must produce expert reports?

An expert witness is a witness that has some expertise that is outside the knowledge of an ordinary juror. While experts are often scientists, doctors, or engineers, any form of expertise can make one an expert witness. So, in a case about faulty plumbing work, a plumber could be an expert witness because most jurors probably do not understand how to design and install a plumbing system. Rule 26(a)(2)(B) indicates that experts must produce an expert report if: 1) they have been retained for the purpose of providing expert testimony; or 2) they are an employee of a party and their duties include regularly providing expert testimony.

A man is injured by a van that was negligently operated by an employee of a local supermarket. The employee was using the van for a business purpose of the supermarket at the time of the accident. He files suit against the supermarket. The man wants to know whether the supermarket has insurance. Which of the following is true regarding discovery of the insurance policy covering the supermarket's van?

An insurance policy must be disclosed if the insurer may be liable for all or part of a judgment entered against the insured. Although information about the insurance policy is unlikely to be admissible at trial, it should be disclosed pursuant to Federal Rule of Civil Procedure 26(a)(1)(A)(iv). Any insurance agreement under which an insurance company may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment falls under the initial disclosures provision of the Rule and should be provided even in the absence of a discovery request. Insurance agreements must be disclosed as part of the initial disclosure regardless of whether they would be admissible at trial or otherwise discoverable.

What is involuntary dismissal and when will it occur?

An involuntary dismissal is a dismissal that occurs when the "plaintiff fails to prosecute" their case. See Rule 41(b). It permits the defendant to seek to dismiss an action if the plaintiff ceases litigating the matter. Most courts that have assessed when involuntary dismissal is appropriate have said that it should be granted when plaintiff's actions demonstrate a "pattern of delay." Some districts supplement this with local rules that specify that dismissal is permitted if a case is inactive for a set period of time (e.g. six months or more).