Civ Pro II Quizzes

When analyzing an Erie issue, if a federal court determines that a state law constitutes procedure bound up with substance, which way does that determination lean?

It leans toward application of the state law

Which of the following is true about additur (select all that apply):

It is granted when the jury award of damages "shocks the conscience." It allows the court to offer to the losing party the option of either paying a larger award or facing a new trial. It is unconstitutional in federal court.

Which of the following are true about remittitur (select all that apply)?

It is granted when the jury award of damages "shocks the conscience." It allows the court to offer to the prevailing party the option of either accepting a lower damages award or facing a new trial.

Vertical Choice of Law Problem

Selecting between competing laws of a state and federal law.

Horizontal Choice of Law Problem

Selecting between competing laws of multiple states

A judge can grant summary judgment for the nonmovant.

True

What are the two causes of action that are most often brought as third party claims against a third party defendant?

Contribution and Indemnity

A movant must move for summary judgment on the entire case--the movant cannot move for partial summary judgment as to a particular claim or a part of a claim or defense.

False

A party can obtain a new trial under Rule 59 whenever new relevant evidence is discovered--even if that evidence would be unlikely to change the outcome of the case.

False

A party cannot obtain a new trial on the basis of prejudicial conduct by the judge because the judge has discretion to conduct the trial as she wishes.

False

At the time of Swift, judges viewed themselves as making new law when they adjudicated cases.

False

Because Rule 13 is not listed in 28 USC 1367(b), there will always be supplemental jurisdiction over compulsory counterclaims and crossclaims, even when diversity is the basis for subject matter jurisdiction over the jurisdiction conferring claim.

False

Congress wanted to allow supplemental jurisdiction over all claims in class actions and thus intentionally left out any mention of Rule 23 in 28 U.S.C. 1367(b).

False

If a federal court determines that the addition of supplemental state-law claims will overly complicate the case and lead to jury confusion, the federal court can decline to exercise supplemental jurisdiction.

True

If a juror makes racially discriminatory comments about the parties during jury deliberations, that can be the basis for obtaining a new trial for prejudicial misconduct.

True

In Finley, the Supreme Court refused to extend supplemental jurisdiction to situations involving the addition of multiple parties.

True

If a federal court dismisses all claims over which it has independent subject matter jurisdiction, then the court must also dismiss any non-diverse state law supplemental claims, even if the court has already held a trial on the claims.

False

If a litigant has a Seventh Amendment right to jury trial, that right cannot be waived, but can be raised at any time before trial.

False

If summary judgment is filed against you, you can withstand the motion by relying on your own allegations in your pleadings.

False

If the jury has been ingesting drugs and alcohol during the trial, that will constitute a sufficient basis to obtain a new trial for prejudicial conduct.

False

If the nonmovant has only a scintilla of evidence, that will be sufficient to withstand a motion for summary judgment and thus summary judgment will be denied.

False

The Hannah Court held that the decision before it was governed by the Rules of Decision Act and the Erie line of cases interpreting that statute.

False

The Hannah Court's test as to the validity of the FRCPs subjects the rules to searching scrutiny and ensures that there is a meaningful check on the Supreme Court's power in promulgating such rules.

False

When a federal court has the judicial power to exercise supplemental jurisdiction over a non-diverse state law claim, it is required to adjudicate the claim and lacks the discretion to decline jurisdiction.

False

In determining whether the first case resulted in a final judgment on the merits for issue preclusion, the analysis is the same as it was for claim preclusion.

True

In enacting 28 USC 1367, Congress intended overturn Finley, but to codify the law created by both Gibbs and Kroger.

True

Some courts and commentators view Byrd as creating a simple balancing test where the court just evaluates which interests weigh in favor of application of state law against the interests that weigh in favor of application of federal law, and applies the law for which the interest is strongest.

True

The Seventh Amendment limits the ability of federal courts to grant new trials.

True

The Supreme Court in Finley hinted that perhaps supplemental jurisdiction was unauthorized given that there was not a statute specifically authorizing the exercise of supplemental jurisdiction.

True

The judge instructs the jury on the law that the jury should apply to the facts.

True

The part of the Hannah decision that modified the York outcome-determinative test was dicta.

True

The term "Res Judicata" is generally used to refer specifically to Claim Preclusion, but sometimes it is used to refer to preclusion in general.

True

Under Swift, the federal courts believed that the state courts would be impressed by their interpretations of general common law and would conform state common law to the federal pronouncements.

True

If a federal case involves a claim where there is no jury trial right and also a counterclaim with a jury trial right that has been properly demanded, what should the federal court do?

Try the counterclaim first to preserve the right to jury trial

Jan is suing David for negligence in Indiana federal court (assume there is diversity subject matter jurisdiction). David, in turn, files a third party complaint against Martin for contribution. Martin argues that the third party complaint must be dismissed because under Indiana law a claim for contribution does not exist until the joint-tortfeasor seeking contribution has in fact already paid the plaintiff. Since David has not yet paid Jan (the suit has just begun), Martin argues that David does not have a claim for contribution under Indiana law and so the third party claim must be dismissed. Which is correct?

Under Rule 14, David can bring the third party claim now because Martin "may be" liable to David ultimately.

What is the context in which Erie questions arise?

When a federal court is adjudicating a state law claim.

Under the test created in the York case, when should a federal court use state law in adjudicating state law claims?

When failure to apply the state law would significantly alter the outcome of the case in federal court (as compared to how the same claim would come out if adjudicated in state court).

According to the Court in Gibbs, when is the relationship between a claim over which a federal court has independent jurisdiction and a non-diverse state law claim such that the claims form "one constitutional case" under Article III?

When the two claims share a common nucleus of operative fact.

According to Justice Brennan in Celotex, a summary judgment movant's options in fulfilling its burden of production are dependent on what?

Whether the movant will bear the ultimate burden of proof on that issue at trial.

The right to jury trial in civil cases created by the Seventh Amendment is tied to which?

Whether there was a right to jury trial in England in 1791

Assume you, as an attorney, are ordered by a court to turn over documents that you firmly believe are attorney-client privileged and should not be disclosed. Can you get an immediate appeal of the district court's order?

Yes if you disobey the order and go into criminal contempt

If you are sued and do not respond to the lawsuit and a default judgment is entered against you, in a subsequent lawsuit or enforcement proceeding, which is correct?

You will not be able to bring any claims in the subsequent proceeding that should have been brought as compulsory counterclaims in the action you defaulted on.

Under the summary judgment standard a fact is "material" (select all that apply):

as determined by the substantive law creating the cause of action or defense at issue if a dispute over that fact might affect the outcome of the suit under the governing law

A counterclaim is compulsory if:

it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim

When must a party demand a jury trial?

no later than within 14 days of the last pleading directed to the issue to be tried

The Seventh Amendment jury trial right is

not incorporated by the 14th Amendment and thus inapplicable to the States

"Collateral" in the collateral order doctrine means:

separate

According to the Supreme Court in Klaxon, under Erie, a federal court adjudicating a state law claim must apply:

the choice of law rules of the state in which the federal court sits

A judge can grant a new trial motion sua sponte.

True

There is a federal constitutional right to an appeal.

False

When the jurisdiction conferring claim is a federal question, then which of the following are true?

1367(b) will not apply; Assuming proper joinder, there will be supplemental jurisdiction over third party claims, upsloping claims, and downsloping claims joined under Rule 14; Assuming proper joinder, there will be supplemental jurisdiction over claims by multiple plaintiffs joined pursuant to Rule 20 and against multiple defendants joined under Rule 20.

By default (without language in the order that would alter this), which dismissals are not considered to be "on the merits."

A dismissal for lack of personal jurisdiction; A dismissal for failure to join a Rule 19 party; A dismissal for improper venue.

When is dispute of material fact "genuine"?

A dispute of material fact is genuine when a reasonable jury (or factfinder) could find for the nonmoving party as to that fact.

For a Rule 59 post-trial motion for a new trial on the basis of insufficiency of the evidence to support the verdict, which of the following are true (select all that apply):

A new trial can only be granted if the verdict is against the great weight of the evidence. The judge can weigh the evidence. The judge can consider the credibility of the witnesses.

Which of the following has the Supreme Court recognized as constituting an essential characteristic of the federal system for administering justice?

Anything dealing with the allocation of decision-making between judge and jury

South Carolina enacts a new workers' compensation statute. In doing so, the statute specifically provides that the determination of whether an injured worker should be considered an "employee" under the statute must be determined by a judge. The legislative history of the statute explains that the rationale for this provision is to ensure that an impartial judge will determine who is an employee under the statute because juries have a history of being swayed by sympathy for injured workers and have made their determinations based, not on the law, but on what determination will result in the largest award for the injured worker. Under a Byrd analysis, how would this state statutory provision be characterized?

As procedure bound up with substance

Absent a different time set out by court order or local rule, when can a summary judgment motion be filed?

At any time until 30 days after the close of all discovery.

The Supreme Court held that the collateral order doctrine did not apply to district court orders refusing to dismiss a case for lack of personal jurisdiction because:

Because the interest being protected is the right "not to be subject to a binding judgment of a court" that lacks jurisdiction, which interest can be vindicated by a reversal on appeal after a final judgment.

In Kroger, the Supreme Court indicated that a Rule 14 third party (impleader) claim satisfied the Gibbs standard requiring that the supplemental claim form one constitutional case with the original claim from the plaintiff against the defendant. Why did the court say that standard would be satisfied for a Rule 14 third party (impleader) claim?

Because the third party (impleader) claim was logically dependant on the original claim between the plaintiff and the defendant.

In Lawsuit 1, A sues B to recover for injuries caused by a car wreck, and B does NOT file a counterclaim against A. Subsequently, in Lawsuit 2, B sues A for negligence from the exact same car wreck. What is the result?

Claim Preclusion will probably bar A from bringing a counterclaim against B in Lawsuit 2; B will likely be barred by an applicable compulsory counterclaim rule from bringing Lawsuit 2; Claim Preclusion will NOT bar B from bringing Lawsuit 2 against A.

What is the test to determine whether an FRCP is authorized by the Rules Enabling Act?

Does the FRCP really regulate procedure or relate to the practice or procedure of the federal courts?

In federal court, if you move for summary judgment and the court denies your motion, you can freely appeal the denial of that motion for summary judgment after a full trial on the merits.

False

Joint tortfeasors are required parties under Rule 19, and thus a plaintiff must sue all joint tortfeasors in a single action.

False

Jury trials are never required before non-Article III courts (such as courts created pursuant to Congress's Article I authority).

False

Justice Scalia, as a conservative, interprets the Rules Enabling Act and the Erie lines of cases to broadly protect state interests over federal uniformity.

False

Rule 14 prohibits the third party defendant from bringing a counterclaim against the defendant who brought the third party claim against it.

False

Summary judgment is a trial by affidavits.

False

The Supreme Court has approved the doctrine of "virtual representation," whereby a non-party to a prior lawsuit can be precluded as long as that non-party's interests were "virtually represented" in the prior lawsuit.

False

The Supreme Court has held that whether the collateral order doctrine should apply and provide a right to an interlocutory appeal must be determined on a case-by-case basis.

False

The Supreme Court in Finley overturned the Gibbs case.

False

The Supreme Court was unsympathetic in Finley because the plaintiff could have solved any problems with subject matter jurisdiction simply by filing all her claims in state court.

False

If the opposing party moves for summary judgment before discovery is finished and you lack admissible evidence with which to respond, but believe that you will be able to counter with evidence after you have completed discovery, what should you do?

File an affidavit with the court explaining that you cannot now present the evidence but believe you will have evidence once you finish the stated discovery

Which of the following were true under the Swift v. Tyson interpretation of the Rules of Decision Act (RDA)?(Select all that apply.)

In adjudicating state law claims, federal courts were required to apply state statutory law and state "local" common law dealing with such things as state real property. Whether the federal or state general common law would be applied in a given case depended on which court--federal or state--suit was ultimately brought in. In adjudicating state law claims, federal courts were free to ignore state common law on matters of commercial law and other areas of so-called "general" common law. In every state, there were effectively two versions of applicable general common law--federal and state.

What is the test to determine the constitutionality of a Federal Rule of Civil Procedure?

Is the FRCP rationally capable of being classified as procedure?

After Hannah, the first question to ask in any potential Erie analysis is:

Is the federal law from an FRCP or a federal statute?

Determining whether someone being precluded is a "party or in privity" for issue preclusion

Is the same as it is for claim preclusion because it is rooted in Due Process

When analyzing joinder of additional claims and/or parties, one must ask two questions--what are they?

Is there subject matter jurisdiction over each claim? and Is joinder proper (ascertained by identifying the appropriate joinder rule and applying its standard)?

When the jurisdiction-conferring claim is diversity, the supplemental jurisdiction statute does which of the following in regard to claims joined under R.14?

It allows supplemental jurisdiction over the third party claim from the defendant to the third-party defendant; It allows supplemental jurisdiction over downsloping claims from the third party defendant against the plaintiff; It prohibits supplemental jurisdiction over upsloping claims from the plaintiff to the third party defendant.

When the jurisdiction-conferring claim is diversity, the supplemental jurisdiction statute does which of the following in regard to claims joined under R.20?

It expressly prohibits supplemental jurisdiction over claims by a plaintiff against multiple defendants; It does not prohibit (and thus expressly allows) supplemental jurisdiction over claims by multiple plaintiffs against a defendant.

Which are true of crossclaims?

Joinder of a crossclaim is proper if the claim arises out of the transaction or occurrence that is the subject matter of the original action; They are permissive; A crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted against it.

When there are alternative determinations in the first case, each of which was actually litigated and decided and each of which on its own is sufficient to support the judgment, what will be issue preclusive in a subsequent case?

Jurisdictions are split on whether to accord issue preclusive effect to both or neither alternative determinations or whether to use a case-by-case approach.

A motion for a new trial under Rule 59 must be filed when?

No later than 28 days after the entry of judgment.

The Supreme Court has held that the collateral order doctrine does not apply to which of the following types of orders (select all that apply)?

Orders sanctioning attorneys for discovery violations Orders granting or denying class certification Orders denying a dismissal for forum non conveniens Orders compelling attorneys to turn over documents that the attorney argues are privileged

The Supreme Court has held that the collateral order doctrine applies (and thus an interlocutory appeal is permitted) for which of the following types of orders (select all that apply)?

Orders staying a federal proceeding to allow a parallel state court proceeding to win the race to judgment (also called abstention) Orders requiring the posting of a substantial bond as a pre-filing requirement Orders denying governmental immunities

Which of the following are true regarding the test for jury trial set out in Chauffeurs v. Terry?

Parties must examine the remedy sought and determine whether it is legal or equitable in nature Parties must identify a historic analog to determine whether this cause of action would have been brought in a court of law or a court of equity in 1791 England The second prong is given more weight than the first.

Which of the following are true?

Supplemental jurisdiction will not exist over permissive counterclaims even when federal question is the basis for subject matter jurisdiction over the jurisdiction conferring claim; Compulsory counterclaims will always satisfy 1367(a)'s requirement of being part of one constitutional case as the original claim.

In the Cohen case, the Supreme Court determined which of the following about the application in federal court of a state rule requiring the posting of a substantial bond as a pre-condition to bringing a shareholder derivative suit under state law?

That federal courts had to apply the state bond requirement.

In Kroger, the Supreme Court indicated which of the following?

That there would NOT be supplemental jurisdiction (at least where the jurisdiction conferring claim is diversity) over upsloping claims between citizens of the same state; That there should be supplemental jurisdiction over third party claims from a defendant to a third party defendant.

Justice Scalia contended the following about how the FRCPs should be construed when determining whether an FRCP is on point and controlling?

The FRCP should be read broadly; Ask whether the FRCP answers the same question as the competing state law; The purposes underlying the competing state law should NOT be considered.

Justice Ginsburg contended the following about how the FRCPs should be construed when determining whether an FRCP is on point and controlling?

The FRCP should be read with sensitivity to state substantive purposes; Avoid broad, immoderate interpretations of the FRCPs; The FRCP should be read narrowly to avoid unnecessary conflicts with state law.

If the federal law is from an FRCP or a federal statute and is on point/conflicting with the state law, what is the result?

The Rules of Decision Act and the Erie cases that interpret it are inapplicable; Federal law will apply as long as the rule is valid (which it will be).

If a state law is determined to be procedure bound up with substance, and the competing federal law is an essential characteristic of the federal system for administering justice, which law should apply?

The Supreme Court has not determined which should apply in this situation

A judge can grant a motion for summary judgment sua sponte.

True

In 1938 which of the following occurred that changed the way federal courts adjudicated state law cases?

The Supreme Court in Erie declared that federal courts could not constitutionally apply federal general common law to state law claims and The Federal Rules of Civil Procedure went into effect.

An error in the jury instructions can be the basis for the granting of a new trial, but generally only if what has occurred?

The attorney timely objected to the erroneous instruction.

Once the movant for summary judgment has satisfied its burden of production, what happens?

The burden of production shifts to the nonmoving party to demonstrate that there is a genuine issue for trial and that summary judgment should not be granted against the nonmovant.

When filing a motion for summary judgment, what is the burden of production?

The burden on the moving party to show through the existing evidence that it is entitled to judgment as a matter of law; once satisfied, the burden shifts to the opposing party to show that there is a genuine issue for trial and that summary judgment should be denied..

Under Rule 20, the standard for joining multiple plaintiffs or multiple defendants in a case is:

The claims by the multiple plaintiffs or defendants must arise out of the same transaction or occurrences; The claims by the multiple plaintiffs or defendants must share a common question of law or fact.

If the defendant moves for summary judgment on an affirmative defense, what must the defendant do to fulfill the burden of production?

The defendant has only one option--he must produce affirmative evidence that demonstrates that there is no genuine issue of material fact as to each and every element of the affirmative defense.

If the defendant moves for summary judgment on a claim being brought against the defendant, what must the defendant do to fulfill the burden of production?

The defendant has two options--the defendant can bring affirmative evidence negating an essential element of the plaintiff's claim against him, OR the defendant can show that the plaintiff lacks any evidence to establish one or more of the elements of the claim against him.

Rule 19 is usually raised by which of the following methods?

The defendant moves under 12(b)(7) to dismiss the action for failure to join a Rule 19 party.

If failure to apply the state law in federal court is outcome determinative, but the competing federal law is an essential characteristic of the independent federal system for administering justice, then which law should apply?

The federal law

James and Emily are in a car wreck. James sues Emily for negligence in Suit 1. Emily raises the defense of contributory negligence to the suit, which in that jurisdiction acts as a complete bar to recovery if proven. There is no compulsory counterclaim rule in the jurisdiction. A jury enters a general verdict in favor of James. In Suit 2, Emily sues James for negligence, and James raises a defense of contributory negligence. What findings from Suit 1 can be issue preclusive in Suit 2?

The jury must have found both that James was not negligent and Emily was negligent, and both findings will be issue preclusive in Suit 2 because both were actually litigated and decided and essential to the judgment.

James and Emily are in a car wreck. James sues Emily for negligence in Suit 1. Emily raises the defense of contributory negligence to the suit, which in that jurisdiction acts as a complete bar to recovery if proven. There is no compulsory counterclaim rule in the jurisdiction. A jury enters a special verdict finding both James and Emily negligent, and the court enters judgment in favor of Emily. In Suit 2, Emily sues James for negligence, and James raises a defense of contributory negligence. What findings from Suit 1 can be issue preclusive in Suit 2?

The only finding that is issue preclusive in Suit 2 is the finding that James was negligent. Although Emily's negligence was actually litigated and decided, it was not essential to the judgment.

If a plaintiff moves for summary judgment on a claim that she has brought, what must the plaintiff do to fulfill her burden of production?

The plaintiff has only one option--she must produce affirmative evidence that demonstrates that there is no genuine issue of material fact as to each and every element of the claim.

In general, who has the burden of proof at trial as to what?

The plaintiff has the burden of proof at trial to establish any claims brought by the plaintiff against others; the defendant has the burden of proof at trial to establish any affirmative defenses.

Under the Full Faith and Credit Clause, if State Court B is trying to determine whether the case before it is precluded by a prior judgment entered by State Court A, then State Court B will need to apply which?

The preclusion laws of State A, the judgment-rendering court.

Rule 14 authorizes the bringing of both a downsloping claim (from the third party defendant against the original plaintiff) and an upsloping claim (from the plaintiff against the third party defendant. What is the joinder standard for bringing these claims?

The upsloping or downsloping claim must arise out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the original defendant.

After Erie, which of the following represents the basic, simplified dichotomy as to federal courts when adjudicating state law claims?

They apply state substantive law; They apply federal procedural law.

In response to Finley, Congress passed the supplemental jurisdiction statute, 28 U.S.C. 1367. What did Congress intend to do in this statute?

To codify the basic holding and test of Gibbs; To overturn Finley, and allow supplemental jurisdiction over the addition of multiple parties; To codify the Court's ruling in Kroger.

A major function of both Rule 19 and Rule 24 is:

To protect absentees (nonparties to the initial action) from practical prejudice.

Which of the following interpretations of "claim" for Claim Preclusion is the most broad and will most often lead to preclusion of subsequent litigation?

Transactional

In order for a claim with independent subject matter jurisdiction to confer supplemental jurisdiction over a related non-diverse state-law claim, the claim with independent subject matter jurisdiction must be substantial, meaning it is nonfrivolous and has some colorable merit.

True

In order to apply 28 USC 1367(b) to any given situation, you must be able to correctly identify the Rule number (from the FRCPs) under which the claim was joined.

True

Justice Ginsburg interprets the Rules Enabling Act and the Erie line of cases to uphold diverse state interests and state substantive policies.

True

Justice Stevens agreed with portions of both Justice Scalia's opinion and Justice Ginsburg's opinion.

True

Justice Stevens argued in his own opinion that the FRCPS should be read with sensitivity to important state interests, including state substantive policies and purposes.

True

Once a claim is asserted by one party against another party (including pursuant to one of the joinder rules), Rule 18 then authorizes the joinder of any additional claims that claimant may have against the same party.

True

Permissive counterclaims are simply defined as any counterclaim that is not compulsory.

True

What are the twin aims of Erie?(Select all that apply)

discouragement of forum shopping; avoidance of inequitable administration of the laws.

For purposes of the final judgment rule, a final judgment is one that

ends the litigation on the merits and leaves nothing for the court to do but execute the judgment

The Supreme Court in Hannah altered the York outcome determinative test, by explaining that whether something was outcome determinative had to be considered how?

in light of the twin aims of Erie; ex ante--before the case is filed.

Which word in the Seventh Amendment is understood to define the availability of the right created thereby?

preserved

When a judge adjudicates a motion for summary judgment, the judge

resolves any credibility determinations in favor of the nonmovant cannot weigh the evidence views the evidence in the light most favorable to the nonmovant must draw reasonable inferences from the facts in favor of the nonmovant