Civil Procedure II

Horizontal Choice of Law Problem: A. Selecting between competing laws of multiple states B. Selecting between application of state and federal law

A

Rule 19 is usually raised by which of the following methods? A. The defendant moves under 12(b)(7) to dismiss the action for failure to join a Rule 19 party. B. The district court issues an order to show cause as to why a Rule 19 party has not yet been added to the case. C. The plaintiff moves to amend the Complaint to add a Rule 19 party. D. The defendant moves to have the Rule 19 party intervene in the case.

A

For John's class, there is not independent subject matter jurisdiction because [ Select ] , but there will be [ Select ] over the class member claims because their claims satisfy 1367(a), and 1367(b) does not exclude class members . Answer 1: A. members of the class have claims that do no reach the jurisdictional amount Answer 2: B. supplemental jurisdiction

A, B

When the jurisdiction conferring claim is a federal question, then which of the following are true?(Select all that apply) A. 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. B. Supplemental jurisdiction will be prohibited over upsloping claims but allowed over downsloping claims under Rule 14. C. Supplemental jurisdiction will be prohibited over claims by a plaintiff against multiple defendants joined under Rule 20. D. 1367(b) will not apply. E. Assuming proper joinder, there will be supplemental jurisdiction over third party claims, upsloping claims, and downsloping claims joined under Rule 14.

A, D, E

"Collateral" in the collateral order doctrine means: A. something pledged as security B. separate C. money D. guaranteed E. important F. effectively unreviewable

B

John's class will be which type of class action? (John's class is a damages class action) A. 23(b)(1) B. 23(b)(2) C. 23(b)(3)

C

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. True False

False

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. True False

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. True False

False

A judge can grant summary judgment for the nonmovant. True False

True

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

True

A judge can grant a new trial motion sua sponte. A. True B. False

True

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 False

True

Absent a different time set out by court order or local rule, when can a summary judgment motion be filed? A. At any time until 30 days before trial. B. At any time after the scheduling order is issued by the court. C. At any time until 30 days after the close of all discovery. D. At any time until the close of discovery.

C

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? A. When the two claims protect the same primary right. B. When the two claims can be said to be the same claim for one actionable wrong. C. When the two claims share a common nucleus of operative fact. D. When the two claims are legally equivalent.

C

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? A. Use the court's discretion to determine the most appropriate order for trying the case. B. Try the claim before the counterclaim because the plaintiff did not bring a claim requiring a jury trial. C. Try the counterclaim first to preserve the right to jury trial D. Try the dominate claim first, whichever that may be.

C

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? A. The state law B. The federal law C. The Supreme Court has not determined which should apply in this situation

C

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? A. The defendant has two options--the defendant can produce affirmative evidence negating each and every element of the plaintiff's claim against him, OR the defendant can show that the plaintiff lacks evidence as to each and every element of the claim against him. B. 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 claim against him.. C. 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. D. The defendant has only one option--the defendant must produce affirmative evidence that demonstrates that there is no genuine issue of material fact as to at least one of the elements of the claim against him.

C

If the defendant moves for summary judgment on an affirmative defense, what must the defendant do to fulfill the burden of production? A. The defendant has two options--the defendant can bring affirmative evidence establishing his entitlement to summary judgement as to each and every element of the affirmative defense, OR the defendant can show that the plaintiff lacks any evidence regarding the affirmative defense. B. The defendant has two options--the defendant can demonstrate his right to summary judgment as to each and every element of the affirmative defense, OR the defendant can negate the plaintiff's response as to one element of the affirmative defense. C. 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. D. The defendant has only one option--the defendant must bring affirmative evidence negating at least one of the plaintiff's responses to the affirmative defense.

C

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? A. Rely on the allegations of your pleading as to that same issue B. Refuse to respond to the motion for summary judgment C. 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 D. Draft an affidavit for your party that contains any needed information, whether or not the party has personal knowledge of it because you will ultimately get the information

C

After Hannah, the first question to ask in any potential Erie analysis is: A. Is the FRCP rationally capable of being classified as procedure? B. Is the state law procedure bound up with substance? C. Would failure to apply the FRCP undermine uniformity of the federal rules? D. Is the federal law from an FRCP or a federal statute? E. Is the FRCP procedure bound up with substance? F. Is the federal law an essential characteristic of the federal system for administering justice?

D

In general, who has the burden of proof at trial as to what? A. The defendant has the burden of proof at trial to show that the plaintiff's claims do not establish his liability and that any defenses have merit. B. The plaintiff has the burden of proof at trial as to both claims brought and as to affirmative defenses that might defeat such claims. C. The plaintiff and the defendant share an equal burden of proof at trial as to both claims and affirmative defenses. D. 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.

D

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? A. It leans toward application of the federal law as long as the state law is also an essential characteristic of the independent federal system for administering justice B. It leans toward application of the state law, but only if the law is not outcome determinative C. It leads toward application of the federal law D. It leans toward application of the state law

D

When is dispute of material fact "genuine"? A. A dispute of fact is genuine when the nonmoving party has even a shred of evidence to contest the fact. B. A dispute of fact is genuine whenever the parties have contested that fact in their pleadings. C. A dispute of fact is genuine when the nonmovant denies it. D. A dispute of material fact is genuine when a reasonable jury (or factfinder) could find for the nonmoving party as to that fact.

D

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. True False

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. True False

False

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

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. True False

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). True False

False

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 False

True

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

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. True False

False

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

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. True False

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. True False

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. True False

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. True False

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 False

True

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

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 False

True

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

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 False

True

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

True

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

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 False

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 False

True

There is a federal constitutional right to an appeal. True False

False

A counterclaim is compulsory if: A. it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim B. it asserts that the opposing party is or may be liable to it for all or part of the claim against it. C. it shares a common question of law or fact with the opposing party's claim

A

A major function of both Rule 19 and Rule 24 is: A. To protect absentees (nonparties to the initial action) from practical prejudice. B. To protect absentees (nonparties to the initial action) from the preclusive effect of a judgment. C. To protect absentees (nonparties to the initial action) from subsequent lawsuits. D. To protect absentees (nonparties to the initial action) from legal prejudice.

A

A motion for a new trial under Rule 59 must be filed when? A. No later than 28 days after the entry of judgment. B. No later than 14 days after the entry of judgment. C. Before submission of the case to the jury. D. No later than 30 days after the entry of judgment.

A

According to the Supreme Court in Klaxon, under Erie, a federal court adjudicating a state law claim must apply: A. the choice of law rules of the state in which the federal court sits B. the choice of law rules of the state where the events giving rise to the action occurred C. the choice of law rules of the domicile of the defendant D. federal choice of law rules

A

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? A. Yes if you disobey the order and go into criminal contempt B. Yes because of the importance of protecting the privilege C. Yes under the collateral order doctrine D. Yes because the order is considered a final judgment

A

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? A. 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. B. The plaintiff has only one option--the plaintiff must bring affirmative evidence negating at least one of the defendant's responses to the plaintiff's claim. C. The plaintiff has two options--the plaintiff can demonstrate her right to summary judgment as to each and every element of the claim, OR the plaintiff can negate the defendant's response as to one element of the claim. D. The plaintiff has two options--the plaintiff can bring affirmative evidence establishing her entitlement to summary judgement as to each and every element of the claim, OR the plaintiff can show that the defendant lacks any evidence regarding the claim.

A

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? A. The federal law B. The state law C. The Supreme Court has not determined which should apply in this situation

A

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? A. 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. B. Because you never filed a pleading in the case in which you defaulted, you will still be able to bring any claims in a subsequent action that would have been compulsory counterclaims in the action on which you defaulted. C. Because default judgments are not final judgments on the merit, the compulsory counterclaim rule cannot apply to them.

A

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? A. 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. B. The jury must have found both that James was not negligent and Emily was negligent, yet it depends on the jurisdiction as to what will be issue preclusive, because while both were actually litigated and decided, as alternative determinations either would support the judgment alone. C. The jury must have found both that James was negligent and Emily was not negligent, and both findings will be issue preclusive in Suit 2 because both were actually litigated and decided and essential to the judgment. D. The jury could have found either that James was not negligent or that Emily was negligent, and thus neither finding will be issue preclusive in Suit 2 because while both were actually litigated, we don't know which was actually decided.

A

Under the test created in the York case, when should a federal court use state law in adjudicating state law claims? A. 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). B. When the state law dealt with the manner or means of recovering. C. When state courts had previously labeled the state law as being "substantive." D. Whenever the state law was not contained in the state's formal procedural rules.

A

What is the context in which Erie questions arise? A. When a federal court is adjudicating a state law claim. B. When a federal court is adjudicating a federal law claim. C. When a federal court is adjudicating international law.

A

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? A. 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. B. The only finding that is issue preclusive in Suit 2 is the finding that James was negligent. Although Emily's negligence was actually litigated, it was not decided. C. The only finding that is issue preclusive is the finding that Emily was negligent, because while James' negligence was actually litigated and decided, it was not essential to the judgment. D. Both findings--that James was negligent and that Emily was negligent--will be issue preclusive in Suit 2 because both were actually litigated and decided and essential to the judgment.

A

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? A. As procedure bound up with substance B. As being outcome determinative C. As being an essential characteristic of the independent federal system in administering justice

A

The Seventh Amendment jury trial right is: A. not incorporated by the 14th Amendment and thus inapplicable to the States B. is applicable to the states regardless of whether it is incorporated by the 14th Amendment C. is incorporated by the 14th Amendment and thus not applicable to the states D. is incorporated by the 14th Amendment and thus is applicable to the States

A

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: A. 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. B. Because any unfairness in erroneously asserting personal jurisdiction over a party in federal court can be alleviated by a Goldlawr transfer to a federal court that has personal jurisdiction. C. Because orders regarding personal jurisdiction do not vindicate an important enough interest to satisfy the requirements of the collateral order doctrine because it is merely the personal interest of a defendant. D. Because the defendant lacks a cognizable personal interest under the Due Process Clauses to object to a court's lack of jurisdiction once the district court has determined such jurisdiction does exist.

A

The right to jury trial in civil cases created by the Seventh Amendment is tied to which? A. Whether there was a right to jury trial in England in 1791 B. Whether there was a right to jury trial established by State Constitutions in 1791 C. Whether there should be a right to jury trial under contemporary notions of Due Process D. Whether there was a right to jury trial in the American Colonies at the time of the founding

A

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? A. The preclusion laws of State A, the judgment-rendering court. B. The preclusion laws of State B, the court in which preclusion is being argued and applied C. Federal preclusion law, as this is governed by the federal Constitution. D. The preclusion laws of State A or State B, as determined in the sound discretion of the court.

A

When filing a motion for summary judgment, what is the burden of production? A. 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.. B. The burden on the party responding to a discovery request to produce all evidence relevant to the request. C. The burden on the party opposing a motion for summary judgment to produce evidence supporting his or her defense. D. The burden on the plaintiff to prove claims and the burden on the defendant to prove affirmative defenses at trial.

A

In determining whether there has been adequate representation, the court will evaluate the adequacy of: (Select any or all that apply) A. John's attorney as class counsel B. John as a class representative C. The class members D. The district court's experience in adjudicating class actions

A, B

Which of the following are true about remittitur (select all that apply)? A. It allows the court to offer to the prevailing party the option of either accepting a lower damages award or facing a new trial.orrect! B. It is granted when the jury award of damages "shocks the conscience." C. It is unconstitutional in federal courts.

A, B

There are three basic parts in determining whether Rule 19 requires dismissal of an action, first, it must be determined: A. Is the absent party required/necessary? B. Is joinder of the absent party feasible? C. Is the absent party indispensable and thus the action must be dismissed?

A, B, C

Which is true as to John's satisfaction of the typicality requirement? (Select any or all that apply) A. John could satisfy the typicality requirement for this class by further limiting his class definition to consumers who suffered permanent scalp discoloration. B. John's injury is not typical of the entire class. C. The typicality requirement could be satisfied by adding a new class representative who suffered increased hair loss. D. The typicality requirement could be satisfied by hiring experienced class counsel. E. John's injury is typical of the entire class because all were injured by the same product. F. John's injury is typical of the entire class because it is one type of harm that occurred.

A, B, C

Match the subsection of the Supplemental Jurisdiction Statute with what that subsection covers. 1367(a). A broad grant of supplemental jurisdiction for all claims forming part of the same constitutional case as the claim over which the USDC has independent subject matter jurisdiction 1367(b). Expressly excludes supplemental jurisdiction over certain claims, but only where the basis for jurisdiction over the original claims is diversity or alienage 1367(c). Provides district courts the discretion to decline to exercise supplemental jurisdiction for specified reasons 1367(d). Tolls the statute of limitations on supplemental state law claims during the pendancy of the federal action

A, B, C, D

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)? A. Orders denying a dismissal for forum non conveniens B. Orders granting or denying class certification C. Orders compelling attorneys to turn over documents that the attorney argues are privileged D. Orders sanctioning attorneys for discovery violations E. Orders denying governmental immunities F. Orders staying a federal proceeding to allow a parallel state court proceeding to win the race to judgment (also called abstention)

A, B, C, D

Under Rule 19, existing parties are ___; while under Rule 24, ___ are ___, ___, ___. A. existing parties B.. contending that absent parties must be added into the action in order for it to proceed. C. absentees D. requesting to be joined into the action.

A, B, C, D

When a judge adjudicates a motion for summary judgment, the judge: A. cannot weigh the evidence B. views the evidence in the light most favorable to the nonmovant C. must draw reasonable inferences from the facts in favor of the nonmovant D. resolves any credibility determinations in favor of the nonmovant

A, B, C, D

Which of the following were true under the Swift v. Tyson interpretation of the Rules of Decision Act (RDA)?(Select all that apply.) A. 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. B. 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. C. In every state, there were effectively two versions of applicable general common law--federal and state. D. In adjudicating state law claims, federal courts were required to "apply the laws of the several states," which meant applying all pronouncements of state common law and statutory law. E. 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. F. A citizen in a state could determine in advance of acting whether state or federal general common law would ultimately be applied to that conduct in a future lawsuit.

A, B, C, E

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. A new trial can only be granted if the verdict is against the great weight of the evidence. B. The judge can weigh the evidence. C. The judge cannot weigh the evidence. D. The judge can consider the credibility of the witnesses. E. A new trial can only be granted if no reasonable jury would find that verdict. F. The judge is required to view the evidence in the light most favorable to the non-movant. G. A new trial can only be granted if the verdict shocks the conscience.

A, B, D

Which of the following is true about additur (select all that apply): A. It is unconstitutional in federal court. B. It is granted when the jury award of damages "shocks the conscience." C. It allows the court to offer to the prevailing party the option of either accepting a lower damages award or facing a new trial. D. It allows the court to offer to the losing party the option of either paying a larger award or facing a new trial.

A, B, D

Justice Ginsburg contended the following about how the FRCPs should be construed when determining whether an FRCP is on point and controlling?(Select all that apply) A. The FRCP should be read with sensitivity to state substantive purposes. B. Avoid broad, immoderate interpretations of the FRCPs. C. The FRCP should be read broadly. D. The purposes underlying the competing state law should NOT be considered. E. Ask whether the FRCP answers the same question as the competing state law. F. The FRCP should be read narrowly to avoid unnecessary conflicts with state law.

A, B, F

After Erie, which of the following represents the basic, simplified dichotomy as to federal courts when adjudicating state law claims? (Select all that apply.) A. They apply state substantive law. B. They apply federal substantive law. C. They apply federal procedural law. D. They apply state procedural law. E. They have discretion to determine whether to use state or federal law.

A, C

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?(Select all that apply) A. Claim Preclusion will probably bar A from bringing a counterclaim against B in Lawsuit 2. B. Claim Preclusion will bar B from bringing Lawsuit 2. C. B will likely be barred by an applicable compulsory counterclaim rule from bringing Lawsuit 2. D. Claim Preclusion will NOT bar B from bringing Lawsuit 2 against A. E. A compulsory counterclaim rule will bar A from counterclaiming against B in Lawsuit 2.

A, C, D

Which are true of crossclaims?(Select all that apply) A. 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. B. Joinder of a crossclaim is proper if the crossclaim shares a common question of law or fact. C. 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. D. They are permissive. E. They are compulsory.

A, C, D

Which of the following are true regarding the test for jury trial set out in Chauffeurs v. Terry? (Select all that apply) A. Parties must examine the remedy sought and determine whether it is legal or equitable in nature B. The first prong is given more weight than the second. C. 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 D. Parties must identify a historic analog to determine whether the case would have been brought in a court of law or equity in American State Courts in 1791 E. The second prong is given more weight than the first. F. If the cause of action was unknown in 1791, then there will not be a right to jury trial.

A, C, E

Which of the following are true? A. Compulsory counterclaims will always satisfy 1367(a)'s requirement of being part of one constitutional case as the original claim. B. It depends on the particular counterclaim as to whether a compulsory counterclaim will satisfy 1367(a)'s requirement of being part of one constitutional case as the original claim. C. Permissive counterclaims often satisfy 1367(a)'s requirement of being part of one constitutional case as the original claim. D. Supplemental jurisdiction will not exist over permissive counterclaims even when federal question is the basis for subject matter jurisdiction over the jurisdiction conferring claim.

A, D

By default (without language in the order that would alter this), which dismissals are not considered to be "on the merits." (Select all that apply)! A. A dismissal for failure to join a Rule 19 party. B. A default judgment. C. An involuntary dismissal for failure to prosecute a claim. D. A dismissal for lack of personal jurisdiction E. A 12(b)(6) dismissal for failure to state a claim upon which relief can be granted. F. A dismissal for improper venue. G. The granting of summary judgment.

A, D, F

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?(Select all that apply) A. Federal law will apply as long as the rule is valid (which it will be). B. Federal law will apply as long as the state law is not procedure bound up with substance. C. Federal law will apply as long as the federal rule is an essential characteristic of the federal system. D. Federal law may apply after analyzing the competing state and federal laws under the Rules of Decision Act and the Erie cases interpreting it. E. The Rules of Decision Act and the Erie cases that interpret it are inapplicable.

A, E

Under the summary judgment standard, a fact is "material" (select all that apply): A. as determined by the substantive law creating the cause of action or defense at issue B. whenever there is conflicting evidence produced during discovery C. as long as it is raised in the original pleadings of the parties D. if there is a genuine dispute regarding it E. if a dispute over that fact might affect the outcome of the suit under the governing law

A, E

According to Justice Brennan in Celotex, a summary judgment movant's options in fulfilling its burden of production are dependent on what? A. Whether the movant moves before or after the close of discovery. B. Whether the movant will bear the ultimate burden of proof on that issue at trial. C. Whether the movant has affirmative evidence to attach to the motion. D. Whether the movant is seeking judgment as a matter of law for the entire case or only partial summary judgment.

B

An error in the jury instructions can be the basis for the granting of a new trial, but generally only if what has occurred? A. The attorney proposed a different instruction to the judge. B. The attorney timely objected to the erroneous instruction. C. The jury was confused by the erroneous instruction. D. The opposing party drafted the erroneous instruction

B

Determining whether someone being precluded is a "party or in privity" for issue preclusion A. May or may not be the same as is for issue preclusion, because it varies by jurisdiction B. Is the same as it is for claim preclusion because it is rooted in Due Process C. Is different than it is for claim preclusion because issue preclusion is more narrow.

B

For purposes of the final judgment rule, a final judgment is one that: A. materially advances the ultimate termination of the case because there is no just reason for delay B. ends the litigation on the merits and leaves nothing for the court to do but execute the judgment C. declares that no reasonable jury could find for nonmovant and the movant is entitled to judgment as a matter of law D. resolves a controlling question of law as to which there is a substantial ground for difference of opinion E. determines the rights or liabilities of the parties

B

Vertical Choice of Law Problem: A. Selecting between competing laws of multiple states B. Selecting between application of state and federal law

B

What is the test to determine whether an FRCP is authorized by the Rules Enabling Act? A. Does the FRCP regulate solely the manner and means of enforcing substantive rights? B. Does the FRCP really regulate procedure or relate to the practice or procedure of the federal courts? C. Does the FRCP avoid abridging, enlarging, or modifying any substantive right? D. Does the FRCP pertain to practice and procedure without interfering with substantive rights?

B

Which of the following has the Supreme Court recognized as constituting an essential characteristic of the federal system for administering justice? A. Anything dealing with a statute of limitations B. Anything dealing with the allocation of decision-making between judge and jury C. Anything dealing with congressional statutes D. Anything dealing with the allocation of power between state and federal judiciaries E. Anything dealing with service of process

B

Which word in the Seventh Amendment is understood to define the availability of the right created thereby? A. Jury B. preserved C. controversy D. suits

B

If the district court determines than an additional class representative is needed, and John selects as an additional class representative Harry, who is citizen from New York, which is true? (Select any or all that apply) A. There would be supplemental jurisdiction because John's claim has independent subject matter jurisdiction, Harry's claim shares a common nucleus of operative fact with John's claim, and 1367(b) does not exclude supplemental jurisdiction for class actions. B. Independent jurisdiction could not exist because Harry, the new class representative, would destroy complete diversity. C. Supplemental jurisdiction over the new class representative's (Harry's) claim could not exist because his claim would contaminate the entire case and thus there would not be an original action over which the district court would have original jurisdiction and 1367(a) would not be satisfied. D. There would still be independent subject matter jurisdiction because the citizenship of the class would be determined solely by John's citizenship.

B, C

John would be required to do which of the following for this class?(Select any or all that apply) A. Pay for attorney's fees of the defendant if John loses. B. Provide members of the class with notice. C. Provide members of the class with the opportunity to opt out of the class. D. Pay for the notice to the class, which may be a recoverable cost if John prevails.

B, C, D

In response to Finley, Congress passed the supplemental jurisdiction statute, 28 U.S.C. 1367. What did Congress intend to do in this statute?(Select all that apply) A. To overturn Gibbs and establish a new standard for supplemental jurisdiction. B. To overturn Finley, and allow supplemental jurisdiction over the addition of multiple parties. C. To codify the Court's ruling in Kroger. D. To codify the basic holding of Finley. E. To overturn Kroger, and allow supplemental jurisdiction (even in diversity cases) over upsloping claims by the plaintiff against a third party defendant. F. To codify the basic holding and test of Gibbs.

B, C, F

What are the twin aims of Erie?(Select all that apply) A. avoidance of conflicts with state common law B. discouragement of forum shopping C. maintaining constitutional limits on federal power D. ensuring that essential characteristics of the federal system are upheld E. avoidance of inequitable administration of the laws

B, E

In 1938 which of the following occurred that changed the way federal courts adjudicated state law cases? (Select all that apply) Franklin D. Roosevelt attempted to pack the U.S. Supreme Court with additional justices. A. Congress created new federal laws to alleviate the Great Depression, which the federal courts interpreted. B. The Federal Rules of Civil Procedure went into effect. C. Congress expanded the diversity jurisdiction of the federal courts by lowering the amount in controversy requirement. D. Adolf Hitler demanded the annexation of the Sudetenland. E. Congress enacted the federal question jurisdiction statute. F. The Supreme Court in Erie declared that federal courts could not constitutionally apply federal general common law to state law claims.

B, F

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? A. That federal courts had discretion to determine whether to require the posting of the substantial bond required by the state rule. B. That federal courts should not apply the state bond requirement. C. That federal courts had to apply the state bond requirement.

C

Once the movant for summary judgment has satisfied its burden of production, what happens? A. The burden of production shifts to the the nonmovant to show that they have raised sufficient facts to plausibly state a claim. B. The court should grant summary judgment in favor of the movant. C. 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. D. The burden of production remains on the movant to establish their entitlement to summary judgment.

C

What is the test to determine the constitutionality of a Federal Rule of Civil Procedure? A. Is the FRCP narrowly tailored to a compelling state interest? B. Does the FRCP avoid abridging, modifying, or enlarging any substantive right? C. Is the FRCP rationally capable of being classified as procedure? D. Is the FRCP rationally related to a substantial government interest?

C

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? A. Both determinations will be issue preclusive in a subsequent suit. B. Neither determination will be issue preclusive in a subsequent suit. C. 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. D. The court will analyze the first court's findings on a case-by-case basis to determine what should be preclusive from the first suit.

C

When analyzing joinder of additional claims and/or parties, one must ask two questions--what are they? A. Is joinder inconsistent with notions of fair play and substantial justice? B. Will it prejudice the opposing party to allow the joinder of additional claims or parties?orrect! C. Is joinder proper (ascertained by identifying the appropriate joinder rule and applying its standard)? D. Is there subject matter jurisdiction over each claim?

C, D

Which of the following is correct about John's class definition?(Select any or all that apply) A. It will be too broad because a class of several thousand members will be unmanageable. B. It will be too narrow by being limited to a specific time frame. C. It is limited to a certain time frame. D. It likely should also be limited to consumers in a specific geographic area. E. It appropriately does not include a geographic limitation.

C, D

When the jurisdiction-conferring claim is diversity, the supplemental jurisdiction statute does which of the following in regard to claims joined under R.14? (Select all that apply) A. It allows supplemental jurisdiction over upsloping claims from the plaintiff against the third party defendant. B. It prohibits supplemental jurisdiction over downsloping claims from the third party defendant against the plaintiff. C. It allows supplemental jurisdiction over downsloping claims from the third party defendant against the plaintiff. D. It allows supplemental jurisdiction over the third party claim from the defendant to the third-party defendant. E. It prohibits supplemental jurisdiction over upsloping claims from the plaintiff to the third party defendant.

C, D, E

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)? A. Orders vacating a settlement between two parties B. Orders denying a dismissal for forum non conveniens C. Orders denying governmental immunities D. Orders staying a federal proceeding to allow a parallel state court proceeding to win the race to judgment (also called abstention) E. Orders sanctioning attorneys for discovery violations F. Orders requiring the posting of a substantial bond as a pre-filing requirement G. Orders denying a motion to dismiss for lack of personal jurisdiction

C, D, F

The Supreme Court in Hannah altered the York outcome determinative test, by explaining that whether something was outcome determinative had to be considered how?(Select all that apply) A. in light of the substantive purpose underlying the rule B. ex post--after the case is filed C. ex ante--before the case is filed D. in light of the essential characteristics of the federal system E. in light of the twin aims of Erie F. against the weight of federal interests in application of federal law

C, E

Under Rule 20, the standard for joining multiple plaintiffs or multiple defendants in a case is:(Select any or all that apply) A. The claims by the multiple plaintiffs or defendants must contain sufficient factual overlap to constitute one constitutional case. B. The claims by multiple plaintiffs or defendants are freely authorized and each can bring as many claims as it has against any other party. C. The claims by the multiple plaintiffs or defendants must arise out of the same transaction or occurrences. D. The claims by the multiple plaintiffs or defendants must be against a party who is or may be liable for all or part of the claim against it. E. The claims by the multiple plaintiffs or defendants must share a common question of law or fact.

C, E

When the jurisdiction-conferring claim is diversity, the supplemental jurisdiction statute does which of the following in regard to claims joined under R.20? (Select all that apply) A. It expressly prohibits supplemental jurisdiction over all claims by or against parties joined under Rule 20. B. It expressly prohibits supplemental jurisdiction over claims by multiple plaintiffs against a defendant. C. It does not prohibit (and thus expressly allows) supplemental jurisdiction over claims by multiple plaintiffs against a defendant. D. It does not prohibit (and thus expressly allows) supplemental jurisdiction over claims by a plaintiff against multiple defendants. E. It expressly prohibits supplemental jurisdiction over claims by a plaintiff against multiple defendants.

C, E

When must a party demand a jury trial? A. no later than 21 days after the last pleading directed to the issue to be tried B. no later than the last pleading directed to the issue to be tried. C. before the close of discoveryrrect! D. no later than within 14 days of the last pleading directed to the issue to be tried

D

Which of the following interpretations of "claim" for Claim Preclusion is the most broad and will most often lead to preclusion of subsequent litigation? A. Sameness of the Evidence B. Primary Rights C. Single Wrongful Act D. Transactional

D

Justice Scalia contended the following about how the FRCPs should be construed when determining whether an FRCP is on point and controlling?(Select all that apply) A. The FRCP should be read narrowly to avoid unnecessary conflicts with state law. B. The FRCP should be read with sensitivity to state substantive purposes C. Avoid broad, immoderate interpretations of the FRCPs. D. Ask whether the FRCP answers the same question as the competing state law. E. The FRCP should be read broadly. F. The purposes underlying the competing state law should NOT be considered.

D, E, F

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. True False

False

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

False

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

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. True False

False

Summary judgment is a trial by affidavits. True False

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. True False

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. True False

False

The Supreme Court in Finley overturned the Gibbs case. True False

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. True False

False

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. rect! True False

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 False

True

John's class action will meet the numerosity requirement. True False

True

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

True

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

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 False

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 False

True

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

True