Civ Pro MC
When is a deposition admissible
A deposition may be used against any party who was present at the deposition or had notice of it: (i) to impeach the testimony of the deponent as a witness; (ii) for any purpose if the court finds that the deponent (including a party-deponent) is dead, at a distance greater than 100 miles from the place of trial (unless the absence was procured by the party offering the deposition), or unable to testify because of age, sickness, etc.; or (iii) for any purpose if the deponent is an adverse party. - ex: Because the plaintiff's attorney was at the deposition, and because the deponent here is out of the country and no facts indicate that the defendant or his attorney procured the absence, the deposition may be used at trial. (B) is incorrect for the reason stated above-by failing to object to the leading question, the plaintiff's attorney waived the objection
Probate of Estate exception to SMJ
Although it is true that federal courts will not probate a decedent's estate, the exception is narrow. To fall within this exception for diversity of citizenship jurisdiction, the claim asserted must involve the actual probate or annulment of a will or seek to reach property in the custody of a state probate court - ex: action of a tort by 1 party against the executor of descedent's estate CAN be heard, its not probate of estate
An office furniture supplier filed a breach of contract action against a law firm in federal district court to recover the balance due on an account for furniture it supplied. The law firm filed a motion to dismiss the action on the ground that service of process was improper. Following a hearing, the court held that service was proper and sufficient. Two more months passed without the law firm filing an answer. The supplier then filed a motion to have the clerk of court make an entry of default, and the clerk did so. What procedure must the supplier follow to obtain a default judgment against the law firm?
An office furniture supplier filed a breach of contract action against a law firm in federal district court to recover the balance due on an account for furniture it supplied. The law firm filed a motion to dismiss the action on the ground that service of process was improper. Following a hearing, the court held that service was proper and sufficient. Two more months passed without the law firm filing an answer. The supplier then filed a motion to have the clerk of court make an entry of default, and the clerk did so. What procedure must the supplier follow to obtain a default judgment against the law firm?
JMOL must be filed when
At any time before submission of the case to the jury and the other party has had a full opportunity to be heard on the issue
If state does not recognize contribution then ___
D cannot bring a third party claim for indemnity or contribution
Which communications with experts receive WPP?
Draft reports and draft disclosures of "trial" experts are work product. Confidential communications between such experts and counsel for the party are also generally protected under the work product doctrine, except for communications relating to the expert's compensation or to facts or data the attorney provided to the expert.
Failing to object to an improper leading question in a deposition
Errors of any kind which could have been obviated if promptly presented are waived unless seasonable objection is made at the time of taking the deposition (this applies to form of questions, oath, conduct of parties, etc.). Because the plaintiff's attorney failed to object at the deposition as to the form of the question, he waived the objection at trial
To receive a jury trial, a party generally must:
File a written demand and serve it on all the parties within 14 days after the service of the last pleading directed to the jury-triable issue - served on ALL parties, not just adverse parties
Motions to compel production
If a party fails to provide discovery or provides incomplete discovery, including disclosures and answers to interrogatories and deposition questions, the other party may move to compel discovery. However, a motion to compel must certify that the moving party has made a good faith attempt to confer with the opponent to obtain the discovery without court intervention. The certification (and an actual attempt at resolving the discovery dispute without court intervention) is a prerequisite to an award of reasonable expenses (which includes attorneys' fees). - *note* the motion to compel will still be granted if proper, but the moving party will not recover attorney fees and cost of motion from non-moving party if they fail to certify they made a good faith attempt to confer
What is the relationship between removal and venue
In a properly removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state
Waiver of Service of Process
Plaintiff may request that defendant waive service by mailing the complaint and two copies of a waiver form, with a prepaid means of returning the form. If defendant denies the request or fails to respond, plaintiff must serve through another acceptable method. If defendant agrees to waive service, defendant extends her time to *answer the complaint to 60 days from the date of waiver request was sent* (as opposed to 21 days). Waiving service does not waive the right to object to venue or jurisdiction
Federal Interpleader Act
Provides special rules for dealing with subject matter jurisdiction, personal jurisdiction, and venue. Under the act, interpleader can be brought if any 2 claimants are citizens of different states and the amount in controversy is $500 or more. Complete diversity is not required.
When can 2 Ps permissively join their claims against 1 D?
Under Federal Rule 20, parties *may* permissively join as plaintiffs (or be joined as defendants) whenever: (i) some claim is made by each plaintiff and against each defendant relating to or arising out of the same series of occurrences or transactions; and (ii) there is a question of fact or law common to all the parties. - ex: Two citizens of State A were injured in State B when the taxi in which they were riding was in an accident. The two State A citizens intend to file tort claims against the taxi driver, a citizen of State B, in federal district court seeking over $100,000 each. May or must they assert their claims in federal district court in a single civil action? - note: they *may* assert their claims in a single action if they wish, or they may file separate actions.
When does the clock tick for the case becoming removable?
When D learns that the case is removable, not when it becomes removable On August 1, the plaintiff, a resident of State A, sued two defendants in State A for personal injuries arising out of an automobile accident. One defendant is a citizen of State A while the other is a citizen of State B. The lawsuit claimed damages of $500,000. The plaintiff quickly reached a settlement agreement with the defendant from State A, and the court dismissed that defendant by order on August 16. The order is served on the remaining defendant on August 20. On September 18, the remaining defendant files a notice of removal with the court, which the plaintiff opposes. How should the court rule on the defendant's notice of removal? - For the remaining defendant, because she filed her notice of removal within 30 days after she discovered the case had become removable. -Here, it is the 30-day time limit that is in question; i.e., specifically, whether the 30-day clock starts to tick on August 16 (when the case became removable) or on August 20 (when the defendant learned that the case became removable). As stated above, it is the latter. The clock starts to tick when the defendant learns by service of any paper that the case has become removable. Because she requested removal within this 30-day period, the court should rule in favor of the remaining defendant.
An investor filed a civil action against her broker in a State A state court seeking $30,000 for violation of federal securities statutes. The investor is a citizen of State B and the broker is a citizen of State A. May the broker remove the action to federal district court?
Yes, the broker may remove the action to federal district court on the basis of federal question jurisdiction.
standard of review on appeal if court denies motion for a new trial
abuse of discretion
standard of review on appeal if court denies JMOL
de novo - its a question of law
Writ of mandamus interlocutory appeal
writs of mandamus are only permitted in exceptional cases. Mandamus commands a trial judge to act, and prohibition commands the judge to refrain from acting. The writs are available only if an appeal will be insufficient to correct a problem and the trial court's actions constitute a serious abuse of power that must be immediately corrected.
A week after being served with the merchant's answer and counterclaim, the hotelier filed a voluntary dismissal of the action. Is the hotelier's dismissal effective?
No, because, after a defendant files an answer, an action may be dismissed only by a stipulation signed by all parties or by an order of the court.
When a plaintiff has both federal and state-based claims against a defendant and diversity jurisdiction does not exist, the federal court has:
*Discretion* to exercise supplemental (pendent) jurisdiction over the state law claim if the two claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding
PJ: consumer brings good over state lines and is injured
- Consumer unilateral act of bringing a good over state lines does not give the court in which he brought the good personal jurisdiction over a company that places a movable object into the stream of commerce ex: P(A) buys good in State B from Company w/ PPoB and Inc in B. P travels to state C. Is injured using good. Where is PJ proper? B, NOT C.
When can a third party intervene as a right?
- First, a nonparty may intervene when it has an unconditional right to do so by a federal statute. - Second, a nonparty may intervene if (i) it has an interest in the property or transaction the is the subject matter of the action; (ii) the disposition or resolution of the action may as a practical matter impair the nonparty's ability to protect its interest; and (iii) the nonparty's interest is not adequately protected by an existing party in the action.
If P presents 3 witnesses saying light was red, and D brings a drunk saying it was green, will P receive SJ motion in his favor?
- NO! - witness competency is a question for judge during SJ stage
After a single vehicle accident, the passenger filed a negligence action in federal district court against the driver to recover for a whiplash injury allegedly suffered in the accident. On the advice of his attorney, the passenger consulted and retained five physicians in search of one who would serve as an expert witness on his behalf at trial. Four of the physicians determined that the passenger had suffered no injury. Obviously, the passenger does not intend to use those four physicians as witnesses at trial. May the driver obtain in discovery the opinions of the four physicians whom the passenger does not intend to have testify at trial?
- No, the driver will not be permitted to discover the facts known and opinions held by these four physicians unless the driver can demonstrate exceptional circumstances under which it is impracticable to obtain facts or opinions on the same subject by other means. - The opinions of experts who are retained in anticipation of litigation but who are not expected to testify at trial may be discovered only upon a showing of exceptional circumstances under which it is impracticable to obtain facts or opinions by other means or when a medical report for an exam conducted under FRCP 35 is requested
A man and a woman were in a two-car traffic accident. Immediately after the accident, the man was treated by a physician at a nearby hospital's emergency room. The man later filed a negligence action against the woman in federal district court, seeking compensatory damages. The woman now seeks discovery regarding the emergency room physician's observations, opinions, and treatment of the man. Is the woman entitled to discovery regarding that information?
- Yes, because the physician observed and treated the man and developed opinions about the man's injuries for purposes other than litigation or trial. -
Will the court grant a motion to dismiss a case for failure to join an indispensable party when P files only against 1 of 2 Ds (in a jurisdiction that allows J&S liability)?
- no - a joint tortfeasor is never treated as a necessary party - ex: Passenger injured when driver collided with trucker. P only sues trucker. Trucker files motion to dismiss for failing to join driver. Answer: motion denied. They are joint tortfeasors, and court will not dismiss case for failing to join J&S tortfeasor
When can pleadings be considered by the judge on a SJ motion
- pleadings can only be considered by judge on a motion for SJ when the pleading (complaint or answer) is *verified, i.e. under oath*, in which it is evidence. - typically, not the case, so pleadings are not considered -i.e. if P shows 3 witnesses saying light red, D only defends with complaint which said light green, P gets SJ bc no genuine dispute of material fact and is entitled to judgment as a matter of law, UNLESS pleading was verified
Early drafts of EW report and communications between counsel and EW
- protected WP - ex: D counsel cannot seek in deposition of P's physician communications between P's lawyer and P physician relating to what physician plans to include in EW report (WP), but can seek communications relating to the expert's compensation or to facts or data the attorney provided to the expert
When is operating a website sufficient to grant PJ?
- when operating the website in that state is purposeful and the claim *arises from contacts in that state* - mere accessibility of a company's website in a state, without more, is usually insufficient contact to support personal jurisdiction
Standard of review if court refuses to give an instruction
1) abuse of discretion if objected to at trial 2) plain error if party fails to object
Absent a showing of substantial need and undue hardship, the "work product" (a document or tangible thing) made by a party or representative of a party (such as the party's attorney) is not discoverable if ___
If made in anticipation of litigation
A credit card company filed a civil action against a consumer in federal district court seeking to recover the unpaid balance on the consumer's account. The credit card company properly served process on the consumer, but the consumer failed to file or serve a timely answer to the complaint. The clerk of court on motion of the credit card company made an entry of default, but default judgment has not been entered. On which grounds may the court set aside the entry of default?
If the consumer demonstrates that there was good cause for his failure to file and serve a timely answer and that he has a viable defense.
What constitutes an appearance that would. require the judge to give the non-moving party notice for a hearing on the motion for DJ against them?
If the defendant has "appeared," even though he has not answered, he must be notified of the request for a default judgment by first-class mail at least seven days before the hearing on the application for a default judgment. Appearance includes any actual formal appearance before the court and any other action that clearly indicates that the defendant intends to contest the case on the merits (e.g., the defendant's continued settlement negotiations). Furthermore, an appearance cuts off the clerk's ability to enter a default judgment.
When must parties provide the names, addresses, and telephone numbers of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses?
w/in 14 days of a meeting to confer to consider their claims and defenses, the possibility of settlement, initial disclosures, any issues concerning the preservation of evidence, and a discovery plan.
A homeowner hired a heating company to install a new furnace in her house. A few days after the installation, the furnace burst into flames and caused severe damage to the house. The homeowner filed a lawsuit in federal court against the company to recover damages, alleging that the company was negligent. The homeowner filed a motion for summary judgment, supported by affidavits from two neighbors. In the affidavits, the neighbors claimed that a door-to-door salesperson told them that he overheard heating company employees discussing the fact that they had never before worked with the homeowner's type of furnace and were unsure how to install it.If the heating company objects to the homeowner's affidavits, what is the likely reason?
If the heating company objects to the homeowner's affidavits, it is because the affidavits do not set forth facts that would be admissible in evidence. Affidavits used to support motions for summary judgment must (i) be made on personal knowledge; (ii) set forth such facts that would be admissible in evidence; and (iii) show the affiant is competent to testify. Here, the affidavits contain hearsay and therefore likely would not be admissible in evidence. - (B) is incorrect because the credibility of witnesses is not relevant to whether their affidavits can be used to support a motion for summary judgment. (C) and (D) are incorrect because a motion for summary judgment can be supported by discovery materials, including affidavits or other declarations made under penalty of perjury. In fact, the general rule is that a party may not rely on pleadings to support the motion or show that a genuine dispute exists (unless the pleadings contain admissions or are verified).
How may a party served an interrogatory asking about millions of papers respond?
In a situation where desired information may be ascertained from the business records of the party on whom the interrogatory was served, and where the burden of finding the information is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to provide the serving party reasonable opportunity to examine the records. [Fed. R. Civ. P. 33] (A) is incorrect because instead of searching the files itself, the manufacturer can allow the collector access to do it
A State A citizen and a State B citizen were in a car accident in State C. The State A citizen filed a negligence action against the State B citizen in a State C state court, seeking $500,000 in damages. If the State B citizen wishes to remove the action to federal district court, in which federal district should the State B citizen file a notice of removal?
In only the district in State C in which the State C state court is located. - The federal removal statute provides that the notice of removal should be filed in the federal district court for the district that geographically encompasses the state court from which the action is being removed. Thereafter, copies must be sent to the parties and filed with the applicable state court.
Can a consumers unilateral act of bringing an item to the jurisdiction be sufficient minimum contacts for PJ against the manufacturer in a products liability case?
No
If removal is untimely, and P makes a motion to remand that is also untimely, does the case go back to state court?
No - Despite removal being untimely, the fed ct still has subject matter jurisdiction (being the court that embraces the state court where the action arose). So we only have 30 days to remand, and we *care about the timeliness of the later filing only*
A plaintiff sued a defendant for negligence, seeking $100,000 in the federal court of State A, after the two were involved in a car accident while driving through State B. The defendant's defense was that the plaintiff was contributorily negligent; contributory negligence is a complete defense under the applicable state law. The plaintiff won after a full trial. May the defendant now bring a negligence claim against the plaintiff in a new suit for injuries from the accident that was previously litigated?
No, because the claim is barred as an unasserted compulsory counterclaim. - not a claim preclusion issue because in this case, there is a final judgment on the plaintiff's negligence claim, which would bar the plaintiff from asserting any other claims relating to the same facts in a subsequent suit against the same defendant. Any such claims are considered to be "merged" with the adjudicated claim and thus bar the plaintiff from properly asserting them. However, this bar is only against the plaintiff's claim. Claim preclusion does not bar a claim by an opposing party.
The plaintiff in a negligence case was injured in a car accident with the defendant. The plaintiff's attorney retained a physician to examine the plaintiff and to testify regarding the plaintiff's injuries. After the physician examined the plaintiff, the plaintiff's attorney discussed the physician's findings with the physician. The plaintiff's attorney and the physician also discussed what the physician should include in the expert witness report that will be provided to the defendant. The defendant then conducted a deposition of the physician. During the deposition, the defendant's attorney asked the physician to describe what was said in his conversations with the plaintiff's attorney. The plaintiff's attorney objected to those questions. Are the defendant's questions regarding the plaintiff's attorney's discussions with the physician properly subject to discovery?
No, because the communications between the plaintiff's attorney and the physician are protected from discovery under the work product doctrine.
A hunter residing in State A visited a website created and operated by a hunting equipment company. The company is a State B corporation, and its headquarters and all its facilities are in State B. It sells its products in several stores in State B and through its website. Its marketing efforts and most of its sales are in State A and State B. Using the company's website, the hunter ordered a hunting stand. The hunter paid for the stand and shipment to State A by providing his credit card information on the company's website. After the stand arrived at the hunter's home in State A, the hunter used the stand while on a hunting trip in State C-a very popular hunting destination. The stand collapsed, causing severe injuries to the hunter. The hunter filed a products liability action against the company in a State C court. The company filed a motion to dismiss the action on the ground that the State C court lacks personal jurisdiction over it. Although the company's website is accessible in State C, the company does not otherwise advertise there, and it does no business there. There is no evidence that the company has sold any products in State C. Does the company have sufficient contacts with State C such that a State C court may exercise personal jurisdiction over it?
No, because the company does not have sufficient purposeful contacts with State C. - Here, the company had no purposeful contact with State C. It was the hunter's unilateral act that brought the stand to State C from State A. Such an act does not give the forum court personal jurisdiction over a company that places a movable object into the stream of commerce [World-Wide Volkswagen Corp. v. Woodsen]. (A) is incorrect because the mere accessibility of a company's website in a state, without more, is usually insufficient contact to support personal jurisdiction, and the claim does not arise from that contact.
A citizen of State A filed a breach of contract action against a citizen of State B in a State A state trial court. The State B defendant timely and properly removed the action to the United States District Court for the District of State A. The defendant then filed a motion to dismiss the action based on insufficient service of process. Following a hearing, the court found that service was proper and denied the motion. The defendant then filed her answer, responding to the merits of the complaint and asserting that the case should be dismissed on the grounds that another action was pending between the same parties for the same cause in a State B state court. The State A Rules of Civil Procedure provide that a party waives the right to seek dismissal on that ground if the party files a pre-answer motion to dismiss and does not assert that ground in the motion. Should the federal court hold that the defendant has waived the right to seek dismissal based on the pendency of the same cause in another court?
No, because this issue is governed by the Federal Rules of Civil Procedure, under which the defendant has not waived this defense.
A bar prep company discovered that its copyrighted content was being used in an online simulated exam that its competitor was administering in a few days. The company filed a petition for an ex parte order to direct the competitor to immediately remove that content from its website. The company submitted an affidavit specifying why immediate and irreparable injury will result if the exam is administered, and offered to provide security for any costs or damages incurred by the competitor if it was determined that the order was wrongfully issued. Should the court issue the order?
No, because the company has not provided sufficient certification for obtaining an ex parte order. - need to (i) gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition; (ii) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and (iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained. Here, the company alleged irreparable injury and offered to provide security, but nothing in the facts indicates that it certified efforts to give notice to the competitor or why notice should not be required. The facts do not establish that it is impossible to provide notice to the competitor before a restraining order is issued.
A plaintiff brought an action in a state court against a defendant, a city police chief in the state, alleging civil rights violations under 42 U.S.C. section 1983. The defendant moves to dismiss the state suit on the ground that the action must be brought in federal court because a federal question is involved. Should the court grant the defendant's motion to dismiss?
No, because the federal courts and state courts have concurrent jurisdiction over the action
A builder from State A sued a homeowner from State B for breach of contract in federal court, alleging that the homeowner failed to pay the second half of the agreed-upon price for completion of construction on a house. The process server attempted to serve the summons and complaint on the homeowner at the house, but after two failed attempts, instead served it on an elderly next-door neighbor, who was out in the front yard and volunteered to accept it on the homeowner's behalf. The homeowner then filed a motion to dismiss for insufficient process. Assume that the requirements for service of process in both states are identical to the requirements of the Federal Rules of Civil Procedure. Is the court likely to dismiss the action for insufficient process?
No, because the homeowner filed the wrong motion. - Insufficient process refers to defects in the documents and their content, whereas insufficient service of process refers to the manner in which the documents were presented, delivered and/or served to the defendant. The key to this answer is reading comprehension. The facts state that the homeowner filed a "motion to dismiss for insufficient process," not "insufficient service of process," which are two separate grounds for dismissal. [See Fed. R. Civ. P. 12(b)(4) and (5), respectively]
A State A citizen and a State B citizen were in a car accident in State A. The State A citizen filed a negligence action in a State A state court seeking $200,000 in damages. The State B citizen filed an answer and four months later filed a notice of removal, removing the action to federal court. Two months after the State B citizen filed and served the notice of removal, the State A citizen filed in the federal court a motion to remand the case back to state court. Should the federal court remand the action to state court?
No, because the motion to remand the action to state court was untimely. - A defendant may remove an action that could have originally been brought in the federal courts. Generally, a defendant must file a notice of removal within 30 days after receipt by or service on the defendant of the initial pleading or summons (when he learns the case is removable). A defendant may not remove a case based solely on diversity if he is a citizen of the forum state; however, that restriction is not jurisdictional but rather procedural. Once removed, a case must be remanded back to state court if the federal court lacks subject matter jurisdiction. A motion to remand based on procedural defects in removal must be filed within 30 days of removal. Here, the federal court has diversity of citizenship jurisdiction over the action. The plaintiff is from State A and the defendant is from State B (and thus not a citizen of the forum state), and the amount in controversy is $200,000. Although the notice of removal was untimely, the motion to remand was also untimely. A motion to remand on grounds other than a lack of subject matter jurisdiction (e.g., the notice of removal was untimely filed) must be filed within 30 days of removal. The failure to timely remand the case on procedural defects is fatal. - *Although it is true that the notice of removal was not timely, the plaintiff must object to any defects in removal by filing a motion to remand with the federal court within 30 days. Here, the State A citizen failed to do so.*
A car buyer, a resident of State A, wished to purchase a new car. After shopping both online and in person for the best price, the buyer decided to purchase a car from a dealer in State B. The buyer drove to the State B dealership, signed a sales contract, paid for the car, and drove the car back home to State A. Three months later, the buyer was in an accident in State A while driving the new car. The other driver in the accident was a resident of State B who was just passing through State A. The other driver filed a negligence action against the buyer in a court in State B. Does the buyer have sufficient contacts with State B such that a State B court could exercise personal jurisdiction over the buyer for the negligence action?
No, because the other driver's claim does not arise from the buyer's contacts with State B, and the contacts are insufficient to create general personal jurisdiction. - Here, the buyer did have purposeful contacts with State B, and the buyer benefited from those contacts in purchasing the car. However, the contacts were not related to the claim asserted. As a result, there is no close connection between the case and the buyer's contacts, and it would not be fair and reasonable to exercise specific jurisdiction in this instance. Furthermore, the buyer is not domiciled in State B, so he is not "at home" there
An employee properly sued her employer for wrongful discharge in federal court. During discovery, the employee served the employer with a discovery request for information regarding all employment termination over the previous 15 years, regardless of the position. The employer objected, and the employee filed a motion to compel the requested discovery. The court denied the motion to compel, and the employee wants to file an immediate appeal to review this decision. Does the employee have a right to an immediate appeal?
No, because the trial court's order is an "interlocutory order" that can be reviewed prior to final judgment only if the trial court certifies it for immediate appeal and the appellate court, in its discretion, agrees to hear the appeal. - Interlocutory orders are the rulings that trial judges make during the course of pretrial proceedings and trials that do not completely resolve the case. Therefore, they are not final. As a result, interlocutory orders are typically not immediately reviewable on appeal until a final order is made, unless they meet one of the exceptions permitting an appeal as of right (i.e., orders granting injunctions; orders appointing a receiver; orders in admiralty cases finding liability but leaving damages to be assessed later; patent infringement orders where only an accounting is ordered; and orders affecting or changing possession of property). The Interlocutory Appeals Act also may permit a review of an interlocutory order, but it is discretionary, and may be available only when (i) the trial judge certifies that the interlocutory order involves a controlling question of law, as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the litigation; and (ii) the court of appeals then agrees to allow the appeal. A party obtaining such a certificate from the trial judge must, within 10 days, apply to the court of appeals, where two out of three judges must agree to hear the appeal. Here, the trial court's denial of the employee's pretrial motion to compel discovery is an interlocutory order. As such, there is no immediate right to appeal.
Grounds to relieve a party from final judgment
On motion and just terms, the court may relieve a party from a final judgment or order on the following grounds: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial; (iii) fraud, misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. For grounds (i), (ii), and (iii), the motion must be made within a reasonable time not to exceed one year from the judgment; for the other grounds, the motion must be made within a reasonable time. (But remember that a lack of subject matter jurisdiction may be raised at any time.) Such a motion is left to the trial judge's discretion, and, on appeal, her decision will be reviewed on an "abuse of discretion" standard. Here, the motion would be based on newly discovered evidence. When deciding whether to grant or deny such a motion, the trial judge must determine whether the evidence could have been discovered with any amount of due diligence.
A pedestrian sued a driver for personal injuries in federal court, properly invoking diversity of citizenship jurisdiction. In the complaint, the pedestrian alleged that the driver ran a red light and struck the pedestrian while the pedestrian was in the crosswalk. Concurrent with the accident, a police report was prepared on which the name and address of a witness to the accident was listed, but neither party requested a copy of the report from the police department. Thus, when the pedestrian submitted an interrogatory to the driver for the names and addresses of persons with knowledge of the accident known to the driver, the driver truthfully omitted the name of the witness. When asked during his deposition whether he knew of any witnesses, the driver again truthfully answered "I don't know of any." At trial, the jury found for the driver. In one of the special interrogatories answered by the jury, the jury found that the driver had the green light and that the pedestrian was crossing against the light. Six months and a day after a final judgment was rendered in favor of the driver, the pedestrian's attorney was contacted by the witness, who stated that the driver ran a red light and that the pedestrian had the "walk" sign when he attempted to cross the road. The pedestrian's attorney immediately moved for relief from judgment based on newly discovered evidence, and the trial judge granted the motion. On appeal, what should the court do?
Reverse the trial judge's decision, because the pedestrian could have discovered the witness's identity with reasonable diligence. - Here, the name and address of the witness could have been easily discovered had the pedestrian's attorney simply requested a copy of the police report from the police department. This is such an obvious case of lack of due diligence on the part of a represented party that it would be an abuse of discretion to grant relief based on newly discovered evidence.
In a diversity case, federal trial courts are required to apply a _______ when considering a motion for a new trial based on the excessiveness of the verdict.
State law standard
A citizen of State A sued a local city newspaper for defamation in state court. The newspaper's defense is that the statements related to the citizen were protected speech under the First Amendment to the United States Constitution. Which of the following statements regarding federal court subject matter jurisdiction is correct?
The case must be litigated through the state court system, but once a decision is rendered by the highest state appellate court, the United States Supreme Court would have subject matter jurisdiction over an appeal concerning the First Amendment issue. - Subject matter jurisdiction in federal court based on a federal question must appear as part of the plaintiff's cause of action as set out in a well-pleaded complaint. The defendant's answer or defense is not relevant because the existence of a defense based on federal law will not give federal question jurisdiction. Supreme Court jurisdiction extends to final judgments rendered by the highest court of a state in which a decision could be had. These judgments may be reviewed by the Supreme Court by certiorari where a right is claimed under the federal Constitution. - the defamation case is based on a state law claim, and the citizen did not assert a claim arising under federal question jurisdiction. Therefore, the case must be litigated through the state court system; however, the Supreme Court would have subject matter jurisdiction over an appeal from the highest state court in State A concerning the First Amendment issue.
When FQ issue is dismissed and all that remains is a state law claim brought in by supplemental jurisdiction, what can the court do?
The court *may dismiss* or hear the state law claim in its discretion, but will likely retain jurisdiction over it. When a claim is in federal court under federal question jurisdiction, and the plaintiff has a state law claim against the defendant that cannot invoke diversity jurisdiction, the federal court has discretion to exercise supplemental (pendent) jurisdiction over the state law claim if the federal and state claims derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding. The court may continue to exercise supplemental (pendent) jurisdiction over the state claim even though the federal claim is dismissed on the merits. However, the state claim should probably also be dismissed (without prejudice) if the federal claim is dismissed before trial. Here, although the federal copyright claim was invalid, it was deemed to be so during trial, before a verdict was rendered. Since the case is currently being tried, the court will likely hear the state claim for the sake of judicial economy.
A homeowner from State A hired a contractor from State B to build a vacation home for her in State C. The parties signed the contract in State A. The contractor breached the contract, and the homeowner sued the contractor in a court of State A, seeking damages of $100,000. The contractor removed the case to the federal court for State A. The homeowner promptly moved to remand the case to state court, arguing that venue was improper. Which of the following facts is most relevant to the court's decision on the homeowner's motion?
The homeowner commenced the action in a State A court. - When a case is removed from state court to federal court, venue is set in the federal district court that embraces the state court in which the action was pending, making the federal district court of State A the only appropriate venue choice. - Unlike cases commenced in federal court, in cases removed to federal court, the residence of the defendant contractor (answer choice (B)) and the place where a substantial part of events relating to the claim occurred (answer choices (A) and (D)) are irrelevant.
A transportation company from State A sued a tourism company from State B in federal court for breach of contract seeking $76,000 in damages. The transportation company filed an appropriate demand for a jury trial, and both parties stipulated that the jury would consist of 10 people. Following the trial and deliberations, nine of the jurors voted in favor of the plaintiff for $29,000 in damages, but one juror voted for the defendant. The defendant appealed. On which of the following grounds would the defendant most likely prevail on appeal?
The ruling was defective because the jury's vote was not unanimous. - in federal civil cases, a jury must begin with at least six and not more than 12 jurors, and the parties may stipulate that the verdict may be returned without unanimity and that a jury verdict of fewer than six persons is acceptable. Here, the parties stipulated to a panel of 10 jurors, which satisfies the rule.
A former shareholder of a corporation filed an action against the corporation's board of directors, alleging that the directors' wrongful actions diminished the value of the corporation and its stock. The former shareholder served a request for production of documents that included a request for any documents relating to the value of the corporation. The corporation produced a number of documents, but withheld certain documents that were written by its attorneys, claiming that the documents were protected from discovery under the attorney-client privilege. Without contacting or conferring with the corporation or its lawyer, the former shareholder filed a motion to compel production of the withheld documents, claiming that they were not covered by the privilege. The court ruled that the documents were not privileged and had to be produced. What will be the likely result if the former shareholder seeks to recover costs or attorneys' fees related to the motion or to have sanctions imposed on the corporation?
The shareholder is not likely to recover costs or attorneys' fees or have sanctions imposed. If a party fails to provide discovery or provides incomplete discovery, including disclosures and answers to interrogatories and deposition questions, the other party may move to compel discovery. However, a motion to compel must certify that the moving party has made a good faith attempt to confer with the opponent to obtain the discovery without court intervention. The certification (and an actual attempt at resolving the discovery dispute without court intervention) is a prerequisite to an award of reasonable expenses (which includes attorneys' fees). Here, the movant cannot certify in a motion to compel that he made a good faith effort to obtain discovery without court action because the facts indicate that he made no such effort.
A homeowner filed a federal diversity action against the manufacturer of a pressure cooker for a products liability action based on state law, alleging that she was severely burned because the top flew off the pressure cooker during operation. Under the state law, a jury verdict does not have to be unanimous. However, a specific rule under the Federal Rules of Civil Procedure directly conflicts with the state law and provides that jury verdicts in federal court must be unanimous. Which statement correctly presents what law the federal judge should apply regarding the jury verdict?
The specific Federal Rule of Civil Procedure will apply as long as both rules are consistent with the Rules Enabling Act and are not unconstitutional. - Erie
When must a party file to correct a clerical error?
There is no time limit to file a motion for relief from judgment to correct clerical mistakes, and the court order correcting the error dates back to the time judgment was entered. - A clerical error is one arising from oversight or omission and may occur in judgments, orders, or other parts of the record. Since there is no time limit, the only issue is whether the error constitutes a "clerical mistake."
Once a final judgment on the merits has been rendered on a particular cause of action, the claimant is prevented from asserting the same cause of action in a later lawsuit by the doctrine of claim preclusion (res judicata). When the claimant won the earlier lawsuit, the claim is said to be:
Though Merged into the prior judgment and bar are used to indicate that claim preclusion (res judicata) is in effect, where the claimant won the earlier lawsuit, the claim is said to be merged into the prior judgment. - Where the defendant won the earlier lawsuit, the claim is said to be barred by the prior judgment. Because the question specifically states that the claimant won the earlier suit, to say that the claim either merged into or is barred by the prior judgment is incorrect.
A plaintiff filed an action against a defendant in federal district court, seeking compensatory damages for negligence after a car accident. The defendant has a policy of automobile liability insurance under which its insurance company will pay for the defendant's defense and all or part of the defendant's liability in the action. Is the defendant's insurance policy subject to discovery by the plaintiff?
Yes, because insurance policies generally are part of the defendant's required disclosures.
A law student was sued by a student loan provider in federal court for failing to pay back her student loans. At the close of a federal civil trial, the court held in favor of the student loan provider for the full amount plus post-verdict interest at 8%. When the court clerk typed up the final order to send to all parties, she accidentally typed in 9% as the post-verdict interest rate. The law student did not notice the error until 14 months after the judgment was entered. She immediately filed a motion for relief from judgment based on a clerical mistake to correct the order to reflect the accurate interest rate. Will the court likely grant this motion?
Yes, because motions for relief from judgment to correct clerical mistakes can be made at any time
A single man with a life insurance policy that pays his designated beneficiary $70,000 upon his death was killed in a car accident. His former girlfriend, a resident of State A, was named as beneficiary, but his mother, a resident of State B, also filed a claim for the life insurance proceeds. The insurance company, a State C corporation having its principal place of business in State B, filed an interpleader action in federal court to protect itself from potentially multiple and inconsistent claims. May the insurance company bring the interpleader action in federal court?
Yes, because the amount in controversy is $500 or more, and both claimants are diverse from one another. - The Federal Interpleader Act provides special rules for dealing with subject matter jurisdiction, personal jurisdiction, and venue. Under the act, interpleader can be brought if any two claimants are citizens of different states and the amount in controversy is $500 or more. Complete diversity is not required. Here, the mother is a State B resident, and the former girlfriend is a State A resident. Thus, both claimants are diverse from one another, and the $70,000 amount in controversy exceeds the $500 minimum.
A manufacturer sued a department store for breach of contract, alleging that the department store failed to pay for a shipment of watches delivered by the manufacturer to the department store in July of that year. At trial, the manufacturer introduced evidence regarding the department store's failure to pay for the watches. In addition, it introduced evidence that the department store failed to pay for a shipment of necklaces, also delivered that July pursuant to a separate contract. At the close of the manufacturer's case, the department store introduced evidence showing that both the watches and the jewelry were defective. The jury returned a verdict for the manufacturer, awarding the manufacturer damages for breach of both contracts. The manufacturer then immediately moved to amend its complaint to conform to the evidence introduced at trial. Should the court allow the amendment?
Yes, because the department store impliedly consented to the introduction of the evidence. - An issue not raised by the pleadings is treated as if raised in the pleadings if it is tried by the parties' express or implied consent. In such a case, a party may move-at any time, even after judgment-to amend the pleadings to conform them to the evidence and to raise the unpleaded issue. Here, the department store impliedly consented to the introduction of evidence relating to the jewelry contract. Not only did it fail to object to the evidence, it introduced evidence to show that the jewelry was defective. Thus, the manufacturer was entitled to move to amend its complaint to conform to the evidence introduced at trial.
A homeowner hired an exterminator company to treat an existing house to protect it from termite infestation. The exterminator determined that it had to remove dirt around part of the foundation in order to treat the house properly. The exterminator thus hired a subcontractor to remove the dirt with a backhoe. While removing the dirt, the subcontractor damaged the foundation of the house. The homeowner filed an action against the exterminator in federal district court, seeking $90,000 in damages. May the exterminator properly maintain a third-party claim against the subcontractor for any liability the exterminator may have to the homeowner?
Yes, because the exterminator is claiming that the subcontractor is liable for the exterminator's liability to the plaintiff.
Requirements for court to grant ex parte TRO
a court may grant an ex parte temporary restraining order without notice of the hearing to the adverse party if the moving party does the following: (i) gives specific facts in an affidavit or a verified complaint to establish that immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition; (ii) certifies in writing all efforts it made to give notice to the adverse party and why notice should not be required; and (iii) provides some security to pay for any costs and damages incurred by the adverse party if it is wrongfully enjoined or restrained.
